Humane Society of the United States v. Ryan Zinke (Lead)
865 F.3d 585, 84 ERC (BNA) 2115, 2017 WL 3254932 (2017)
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Rule of Law:
The Endangered Species Act permits the Fish and Wildlife Service to identify and delist a Distinct Population Segment of an already-listed species. However, such an action is arbitrary and capricious if the Service fails to analyze the impact of carving out the segment on the remaining population and fails to consider the effect of the loss of historical range on the segment's current viability.
Facts:
- By the 1960s, gray wolf populations across the contiguous United States were driven to the brink of extinction due to hunting, depredation, and habitat loss.
- Between 1966 and 1976, various regional subspecies of the gray wolf (Canis lupus) were federally listed as endangered.
- In 1978, the Fish and Wildlife Service reclassified the gray wolf into a single species-wide listing, designating the Minnesota population as 'threatened' and wolves in the remaining 47 contiguous states as 'endangered.'
- Following federal protection, the gray wolf population in the Western Great Lakes region, including Minnesota, Wisconsin, and Michigan, experienced a significant recovery.
- By 2011, the Western Great Lakes population comprised approximately 70% of all gray wolves known to occur south of Canada.
- Despite this regional recovery, gray wolves had been eliminated from an estimated 95% of their historical range in North America.
- Based on the population rebound in the Western Great Lakes, the Service issued a rule to remove federal protections for wolves in that specific region, transferring management to the states.
Procedural Posture:
- In 2011, the U.S. Fish and Wildlife Service issued a final rule designating the Western Great Lakes population of gray wolves as a Distinct Population Segment and simultaneously removing it from the federal list of endangered species.
- The Humane Society of the United States, et al. (plaintiffs) sued the Secretary of the Interior (defendant) in the U.S. District Court for the District of Columbia, challenging the rule as a violation of the Endangered Species Act and the Administrative Procedure Act.
- The district court granted summary judgment for the Humane Society, finding the rule unlawful, and vacated it.
- The Fish and Wildlife Service, along with intervening states and sportsmen's groups (appellants), appealed the district court's decision to the U.S. Court of Appeals for the D.C. Circuit, with the Humane Society as the appellee.
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Issue:
Does the Fish and Wildlife Service's 2011 Rule, which simultaneously designated and delisted the Western Great Lakes gray wolf Distinct Population Segment, violate the Endangered Species Act and the Administrative Procedure Act?
Opinions:
Majority - Millett, Circuit Judge
Yes, the 2011 Rule violates the Administrative Procedure Act because the Service failed to reasonably analyze two significant aspects of the rule. First, while the Endangered Species Act (ESA) does permit the Service to designate and delist a Distinct Population Segment (DPS) from a larger listed entity, the Service acted arbitrarily and capriciously by failing to consider the effect of this action on the remaining population of wolves. The Service cannot carve out a recovered segment and in so doing leave the 'remnant' population—which was part of a previously protected entity—in a state of legal limbo without determining if it still qualifies for protection under the Act. Second, the Service's decision was arbitrary and capricious because it failed to address the impact of the loss of the gray wolf's historical range on the viability of the current population. Although the Service may reasonably interpret the ESA's 'range' provision to mean 'current range,' its own policies acknowledge that a substantial loss of historical range can undermine the viability of a species as it exists today, and failing to analyze that important factor was a fatal error. The court rejected challenges to the Service's analysis of threats from disease, human-caused mortality, and state management plans, finding those aspects of the decision were supported by substantial evidence.
Analysis:
This decision clarifies that the Fish and Wildlife Service's authority to designate a Distinct Population Segment (DPS) is not a 'one-way ratchet' for only increasing protections, but can also be used for delisting recovered populations. However, the ruling establishes crucial limitations on this authority by requiring the Service to analyze the status of the 'remnant' population left behind, preventing a 'delisting by balkanization.' The case also solidifies the principle that even when focusing on a species' 'current range,' the Service cannot ignore the impact of a massive loss of historical range on the species' present-day viability, ensuring a more holistic analysis for delisting decisions.
