Judge sends feds back to the drawing board for wolverine protections

Molloy tosses 2020 decision that found Endangered Species Act protections weren’t warranted. U.S. Fish & Wildlife has 18 months to reconsider.

By Amanda Eggert MONTANA FREE PRESS

A federal judge has ordered the U.S. Fish and Wildlife Service to redo a rule that found federal protections are not merited for wolverines, snow-dependent carnivores that live in the Northern Rockies, including much of western Montana.

On Thursday, U.S. District of Montana Judge Donald Molloy ordered the agency to throw out a 2020 decision to not list the species under the Endangered Species Act, start from scratch, and issue a new determination within 18 months.

A coalition of 12 conservation groups sued the agency in 2020, arguing that the federal government disregarded key scientific studies in its assessment of the species’ viability to survive into the foreseeable future and erred in its finding that Canadian wolverines would significantly buoy the population of Lower 48 wolverines. The plaintiffs argued that the agency’s actions “violate the fundamental requirement of the ESA.”

“FWS previously ignored key studies that illustrate the threats the wolverine continues to face due to global warming. By reviewing a more complete picture of the species’ circumstances, we are hopeful that the agency will identify the need for increased protections,” said Amanda Galvan, an associate attorney with Earthjustice’s Northern Rockies office, in an emailed release about the decision.

Wolverine management has been on a pendulum since conservation groups first petitioned USFWS to consider protections for the animal in 2000. Molloy referenced that trajectory in his order, noting “the agency’s own inconsistency as to the species’ status” in a section of the opinion where he rebuts the defendants’ argument that throwing out the 2020 rule would create “disruptive consequences.”

In 2013, USFWS proposed a “threatened” listing for wolverines, only to reverse course the following year. Conservation groups challenged that reversal, and a judge sided with them in 2016, finding that the federal government failed to follow the best available science in its decision to not list the animals as threatened. In 2020, USFWS under the Trump administration determined that federal protections were not warranted. 

“Wolverines are trapped on the merry-go-round of extinction and the U.S. Fish and Wildlife Service needs to put them on the path toward recovery by protecting them under the Endangered Species Act,” said WildEarth Guardians’ senior adviser Sarah McMillan.

Western Environmental Law Center attorney Matthew Bishop represented the plaintiffs. Bishop, who’s been involved in wolverine management issues for more than 15 years, said biologists have asserted that “the writing is on the wall” regarding how climate change will affect the species’ long-term viability.

“If they’re listed, then I think we could really start talking about reintroduction, critical habitat and recovery planning — doing everything we can to keep them around,” Bishop told Montana Free Press.

Molloy’s order establishes wolverines as a candidate species, a designation given to some species that USFWS is considering for ESA protections. As a candidate species, wolverines, which are estimated to number about 300 in the Lower 48, will have a measure of protection under the ESA. Federal agencies will be required to confer with USFWS on any actions that might harm wolverines, and planning decisions that could destroy or degrade critical habitat must be weighed by land managers.

“The Service intends to meet the Court’s 18-month deadline and will continue working with partners on the next steps for the wolverine in the lower-48,” USFWS spokesperson Joe Szuszwalak said in an emailed statement.

The state of Idaho also intervened in the lawsuit as a defendant. Idaho’s Fish and Game Commission had argued that federal protections for wildlife threatens Idaho’s “sovereign interest in managing all wildlife within the borders of the State” and would likely “result in unnecessary administrative burdens or limitations on federal land management actions, with potential for significant economic and societal impacts on communities that exist in or near affected federal lands.”

The Idaho Fish and Game Commission did not return MTFP’s request for comment by press time Monday morning.