The Center for Biological Diversity (CBD) chalked up a preliminary win in federal court in Washington D.C. when the court refused to dismiss the group’s lawsuit alleging the U.S. Fish & Wildlife Service (FWS) violated federal law for failing to develop a recovery plan for gray wolves in the 44 states where they remain federally protected.
In late 2020, FWS removed gray wolves from the list of federally protected species throughout the Lower 48 states (except for the Northern Rockies where wolves were already delisted, and the Mexican wolf population, which has a separate listing status). This 44-state delisting was then overturned by a federal court in California in early 2022. A few months later, the Center for Biological Diversity sued, alleging that FWS violated the Endangered Species Act by failing to develop a recovery plan for the 44-state gray wolf listing.
The federal government moved to have the CBD lawsuit dismissed, but the court held that FWS has a mandatory duty to develop such a recovery plan: “One listed species, one recovery plan.”
While FWS had created recovery plans for the Eastern Timber Wolf, Northern Rocky Mountain Wolf, and the Mexican Wolf, that’s not enough, according to the court opinion issued last week. FWS must develop a recovery plan that addresses the entire 44-State Listing.
Importantly, the court didn’t rule that the recovery plan must result in wolf recovery in 44 states, and noted that FWS “may forego creating a plan if it ‘funds that such a plan will not promote the conservation of the species.’” But FWS has not issued such a finding.
The court noted, “Neither the complaint nor this opinion suggests that, if this suit proves successful, FWS must choose particular means for achieving conservation of the 44-State Listing of gray wolves.”
It’s to be expected that the court ruling could result in FWS undertaking a largely paper-chasing exercise to develop the 44-State Listing gray wolf recovery plan. CBD successfully nailed the agency on its “non-discretionary duty” to develop such a plan, but it’s doubtful that FWS’s position that gray wolves are no longer in need of federal protection will change.
The federal government argued that FWS has discretion not to create a new recovery plan because the agency is also mandated to give priority to those endangered species or threatened species that are most likely to benefit from such plans. But the court rejected that argument, noting that it does not relieve FWS of the duty to create compliant recovery plans, “even if other recovery plans were previously developed under a different legal regime or for different previously listed species.”
That a recovery plan is a nonbonding ‘statement of intention, not a contract,” is also irrelevant, according to the court, since CBD wasn’t challenging a failure to abide by a 44-State Listing recovery plan, “but rather the plan’s nonexistence.”
While CBD is expected to seek to expand wolf recovery efforts to other states and regions, last week’s ruling doesn’t entirely settle the matter, as the case is set to continue in the D.C. federal court. At the same time, appeals of the California court’s decision upending the 44-state delisting are currently on hold, while the parties await the FWS’s next action.
FWS has announced that it intends to submit a proposed rule concerning the listing status of gray wolves throughout the entire Lower-48 states (not just the 44-states currently listed) in early February 2024. One thing is certain: No matter what FWS proposes, we can expect more years of litigation.
Cat Urbigkit is an author and rancher who lives on the range in Sublette County, Wyoming. Her column, Range Writing, appears weekly in Cowboy State Daily.
