A federal judge has swatted the U.S. Fish and Wildlife Service for not doing enough to ensure there is a viable population of the Mexican gray wolf in Arizona and New Mexico.
In a 44-page ruling, U.S. District Court Judge Jennifer Zipps, a President Obama nominee, cited repeated instances where the agency ignored the advice of “leading wolf scientists” in adopting its own recovery plan. And the judge said Fish and Wildlife officials acted in an “arbitrary and capricious” manner in deciding what to do.
“Moreover, this case is unique in that the same scientists that are cited by the agency (in crafting the plan) publicly communicated their concern that the agency misapplied and misinterpreted findings in such a manner that the recovery of the species is compromised,” Zipps wrote. “To ignore this dire warning was an egregious oversight by the agency.”
The judge ordered the agency to come back to court within 30 days and provide her a deadline of when it would have a revised — and legally acceptable — plan.
Agency spokesman John Bradley had no comment, saying the ruling is being reviewed by legal staff.
But Timothy Preso, the attorney for Earthjustice who argued the case, called this a significant victory.
“This ruling offers hope that the Mexican wolf can be pulled back from the brink of extinction is too late,” said Preso who filed a lawsuit challenging the agency rules on behalf of the Center for Biological Diversity and Defenders of Wildlife. “The judge made clear that management of the lobo must follow the law and the science on Mexican wolf recovery instead of giving in to the political demands of wolf foes.”
Those “foes” also were represented in the case, with Zipps consolidating the arguments of environmental groups with those who found their own flaws with the wolf reintroduction plan.
That included the Arizona Game and Fish Department and business groups and governments in the area which the wolf reintroduction is taking place. The latter group said they were not properly consulted and objected to the limits imposed on when ranchers are able to kill a wolf they say is threatening their livestock.
Zipps clearly sided with those who said Fish and Wildlife Service is not doing enough.
She said the federal Endangered Species Act reflects the desire of Congress to halt and reverse the trend toward species extinction, “whatever the cost.” And she said that law requires federal agencies “to use all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which measures provided by the ESA are no longer necessary.”
More to the point, Zipps said, Fish and Wildlife Service must consider “the long-term viability of the species,” paying attention to recovery needs. And she said the agency “must determine recovery based on the viability of species, not in captivity but in the wild.”
In this case, she said that by the 1970s the population of the Mexican wolf “hovered on the brink of extinction,” being poisoned and hunted.
That resulted in a captive breeding program, with all the Mexican wolves alive today originating from seven that, by 1980, constituted the last of the subspecies. The ultimate goal was to reestablish wolf populations in the wild.
The latest rule sets an objective of 300 to 325 Mexican wolves within an area of nearly 154,000 square miles, encompassing all of Arizona and New Mexico south of Interstate 40.
But Zipps said there have been problems, with Fish and Wildlife acknowledging in 2014 the experimental wolf population was not thriving. She said it is “undisputed” that has been affected by not only illegal takings and pup mortality but lawful removals of wolves that were having an impact on livestock grazing and hunting.
All that, in turn, resulted in less genetic diversity which, in turn, means smaller litters, lower birth weights, higher rates of pup mortality and lowered disease resistance.
She also found that the cap of 325 simply maintained “persistence” of the species, keeping the wolf population alive but not really addressing its long-term survival. That, Zipps said, is legally unacceptable.
“Persistence is antithetical to the ESA’s recover mandate,” she wrote.
Zipps also faulted the agency for limiting the range of the wolf to south of I-40 and its practice of removing animals that ventured north of that point. She said the agency itself acknowledged that the territory north of the highway “will likely be required for future recovery and recognized the importance of natural dispersal and expanding the species’ range.”
The bottom line, she said, is the plan is no more likely to succeed in producing a viable wild population than what had been done before. And she was unwilling to rely on promises of future actions “that may never be implemented.”
“The experimental population that is the subject of this litigation is the only population of Mexican wolves in the wild,” she wrote. “It is undisputed that recovery of the population is in genetic decline and that the present agency action will have long-term effects on the genetic health of the species.”
Zipps also rejected arguments that any plan that Fish and Wildlife crafts must be the product of some sort of agreement with both the state of Arizona and private individuals who have argued for a less aggressive plan for wolf reintroduction and preservation. She said while the agency is expected to consult with affected parties, the law makes it clear that Fish and Wildlife must “retain the authority and management flexibility to issue regulations that further the conservation of the species.”
All that, the judge said, requires her to void the plan.
“When, as here, the agency achieved an outcome that fails to adhere to the guidelines set by Congress, the court may not uphold that action, no matter how carefully negotiated or hard-fought it may have been,” she wrote.