Abstract: In 2003, the United States Department of the Interior (DOI) established three distinct population segments (DPSs) for the gray wolf, which encompassed its entire historic range. In addition, DOI downlisted the gray wolf from an endangered to threatened species in the Eastern and Western DPSs, despite the wolf's continued absence from ninety-five percent of its historic range. The U.S. District Court for the District of Oregon properly invalidated DOI's dysfunctional downlisting of the gray wolf. DOI's interpretation of “significant portion of its range” was inconsistent with the text, intent, and purposes of the Endangered Species Act (ESA). In addition, DOI inverted its DPS policy, which provides different populations of the species different levels of protection in different portions of its historic range. Achieving the recovery plan goals did not warrant downlisting the gray wolf. DOI also failed to address the five downlisting factors of section 4(a) of the ESA across a significant portion of the gray wolf's historic range. Nevertheless, DOI could have established two DPSs encompassing the populations of gray wolves in the western Great Lakes and northern Rocky Mountains, and could have accordingly downlisted these populations to threatened species status.

 

As North America was settled, wolves and other predators were consciously exterminated. [FN1] The Endangered Species Act (ESA) of 1973 protected the wolf and provided the means for its restoration across its historic range. [FN2] In Minnesota, the sole remaining gray wolf *38 population expanded into Michigan and Wisconsin. [FN3] In the northern Rocky Mountains, gray wolves were reintroduced into Wyoming and Idaho, [FN4] and naturally recolonized northwest Montana from Canada. [FN5] Gray wolves were also reintroduced into New Mexico and Arizona. [FN6] The restoration of the gray wolf in a small part of its historic range “is truly an endangered species success story.” [FN7]

 

In 2003, the Department of the Interior (DOI) established three distinct population segments (DPSs) that incorporated the entire historic range of the gray wolf and downlisted the gray wolf in the Eastern and Western DPS to a threatened species. [FN8] DOI built on the success in six states to downlist the gray wolf in much of its historic range across thirty states, despite the absence of the gray wolf from ninety-five percent of its historic range. [FN9] Defenders of Wildlife (DOW) brought suit challenging DOI's decision. [FN10] In Defenders of Wildlife v. Secretary, U.S. Department of the Interior, the U.S. District Court for the District of Oregon found DOI's action violated the ESA and its regulations. [FN11] The court held that DOI misinterpreted the legal meaning of “significant portion of its range,” inverted its own DPS policy, and only analyzed the five downlisting factors across the gray wolf's current range, not historic range. [FN12]

 

*39 This Article demonstrates that the federal district court's decision in Defenders of Wildlife was correct. Part I of the Article provides an overview of the ESA, while Part II provides a brief history of the gray wolf in the United States. Part II also reviews DOI's attempts to reintroduce the gray wolf into many regions of the country. Part III analyzes the legal meaning of “significant portion of its range,” DOI's implementation of the DPS policy, the importance of recovery plans, and DOI's consideration of the five downlisting factors. The Article asserts that DOI could have established two DPSs encompassing the core populations of gray wolves in the western Great Lakes and northern Rocky Mountains, and accordingly downlisted those populations to threatened species status. Subsequent litigation rejecting DOI's abandonment of a Northeast DPS for gray wolves is reviewed. Part IV concludes the Article by examining DOI's regulatory changes in the wolf recovery program following this litigation, as well as the House bill amending the ESA.

The Supreme Court described the ESA as “the most comprehensive legislation for the preservation of endangered species ever enacted by any nation.” [FN13] Congress recognized that “various species of fish, wildlife, and plants in the United States have been rendered extinct as a consequence of economic growth and development untempered by adequate concern and conservation,” while other species “have been so depleted in numbers that they are in danger of or threatened with extinction.” [FN14] The ESA requires the Secretary of the Interior (SOI) to protect “species,” including “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife.” [FN15] The ESA protects endangered species, defined as “any species which [are] in danger of extinction throughout all or a significant portion of its range,” [FN16] and threatened species, which are “any species which [are] likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” [FN17] Congress recognized that “these species of fish, wildlife, and plants are of esthetic, ecological, educational,*40 historical, recreational, and scientific value to the Nation and its people.” [FN18]

 

The listing process begins with a petition submitted by a concerned party. [FN19] DOI has ninety days to determine if there is “substantial scientific or commercial information” to go forward. [FN20] If there is substantial information, DOI has one year to determine whether to list the species and the range of its protection. [FN21] Utilizing the best scientific evidence, DOI must determine if the species is facing “the present or threatened destruction, modification, or curtailment of its habitat or range; overutilization for commercial, recreational, scientific, or educational purposes; disease or predation; the inadequacy of existing regulatory mechanisms; or other natural or manmade factors affecting its continued existence.” [FN22] Each of these five factors is equally important. [FN23] If the SOI finds that a species is adversely affected by one factor, the species must be listed as endangered or threatened. [FN24] The same process is followed for the downlisting and delisting of the species. [FN25]

 

Once the species is listed, the SOI must “develop and implement [recovery] plans for the conservation and survival” of the species, unless she “finds that such a plan will not promote the conservation of the species.” [FN26] DOI equates recovery with conservation, which is defined as “the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to [ESA] are no longer necessary.” [FN27] The SOI is instructed to “give priority to those *41 endangered species or threatened species, without regard to taxonomic classification, that are most likely to benefit from such plans.” [FN28]

 

Once listed, a species is afforded ESA protection. [FN29] Section 7 of the ESA precludes any federal action that “jeopardizes the continued existence of any endangered species or threatened species or results in the destruction or adverse modification of designated critical habitat.” [FN30] The federal agency can only proceed with the project if authorized by the Endangered Species Committee. [FN31] Section 9 prevents any person from taking an endangered species. [FN32] “Take” is defined as “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” [FN33] Section 4(d) permits the SOI to adopt rules that allow for the taking of threatened species under certain circumstances. [FN34] Regulations issued under section 4(d) are “usually more compatible with routine human activities in the reintroduction area.” [FN35]

 

Section 10(j) permits the SOI to introduce an experimental population of an endangered or threatened species, which is “wholly separate geographically from nonexperimental populations of the same species” and “outside the current range of such species, if the SOI determines that such release will further the conservation of such species.” [FN36] Prior to the release, the SOI must decide “whether or not such population is essential to the continued existence of an endangered species or a threatened species.” [FN37] The experimental population is treated as a threatened species, and is therefore subject to section 4(d) regulation. [FN38] Under section 7, a nonessential experimental population is treated as a threatened species only when in a National Park or National Wildlife Refuge. [FN39] All federal agencies must consult *42 with DOI to determine that their actions will not harm the species or its habitat. [FN40] If outside a National Park or National Wildlife Refuge, a nonessential experimental population is treated as a species proposed for listing. [FN41] Federal agencies must still confer with DOI to determine if their actions will jeopardize the species. [FN42] However, the results of the conference are only advisory and do not restrict the agency from proceeding with the action. [FN43] The agency within DOI responsible for implementation of the ESA is the U.S. Fish and Wildlife Service (FWS). [FN44]

At one time, the gray wolf occupied all of the continental United States, except the arid regions of California and the Southeast. [FN45] The expansion of human settlement, the move westward, the growth of agriculture and the livestock industry, trapping and hunting, competition with hunters, and federal and state predator control led to the extermination of the wolf. [FN46] By the 1970s, the gray wolf had been extirpated from more than ninety-five percent of its historic range. [FN47] The only remaining substantial wolf population was located in Minnesota and Michigan, [FN48] though wolves dispersed from Canada into the *43 northern Rockies. [FN49] Following the enactment of the ESA in 1973, various subspecies of the gray wolf were granted protection: the northern Rocky Mountain wolf in 1973, [FN50] the eastern timber wolf in 1974, [FN51] the Mexican gray wolf in 1976, [FN52] and the Texas gray wolf in 1976. [FN53] In 1978, the FWS moved away from subspecies protection and listed the gray wolf as an endangered species throughout the continental United States, except in Minnesota where the wolf was downlisted to a threatened species. [FN54]

 

The FWS recognized the importance of subspecies distinctions; therefore, recovery plans and management decisions continued to focus on subspecies. [FN55] The FWS completed a recovery plan for the eastern Timber wolf in 1978, which was revised in 1992; [FN56] for the northern Rocky Mountain wolf in 1982, which was revised in 1987; [FN57] and for the Mexican wolf in 1982. [FN58] In 1994, the FWS considered a proposal to develop a national recovery plan that would incorporate the three recovery plans and provide a national strategy for gray wolf recovery, [FN59] but *44 this effort was abandoned. [FN60] Meanwhile, the gray wolf prospered in the western Great Lakes region and exceeded recovery goals. [FN61] Gray wolves from Minnesota migrated to northern Wisconsin and northern Michigan to form a Great Lakes meta-population. [FN62] Gray wolves from Minnesota also dispersed to North and South Dakota, Illinois, and Missouri. [FN63] The existence and identity of wolves in the Northeast, however, are unknown. [FN64]

 

Gray wolves from Canada also recolonized northwest Montana. [FN65] In addition, gray wolves were reintroduced into Wyoming and Idaho in 1995 and 1996 as nonessential experimental populations pursuant to section 10(j) of the ESA. [FN66] Subsequently, the Wyoming Farm Bureau brought suit challenging their reintroduction. [FN67] The U.S. District Court for the District of Wyoming held that the reintroduction of wolves into Wyoming and central Idaho violated section 10(j) of the ESA. [FN68] However, the U.S. Court of Appeals for the Tenth Circuit reversed, and found the potential occurrence of an individual naturally dispersing wolf in the experimental area did not violate section 10(j) because an individual dispersing wolf did not constitute a population.*45 [FN69] The court upheld the FWS determination that the experimental population was “wholly separate geographically” from the natural population, and was released outside “the current range” of the natural population. [FN70] The Tenth Circuit also found that the SOI could treat all wolves in the experimental population area as part of the experimental population. [FN71] This would help achieve recovery and avoid law enforcement problems. [FN72] Since this litigation, wolves in the northern Rockies have exceeded recovery goals. [FN73]

 

Mexican wolves were reintroduced into the Blue Range Wolf Recovery Area in New Mexico and Arizona in 1998 as a nonessential experimental population. [FN74] No recovery goals for downlisting were established. [FN75] The New Mexico Cattlegrowers Association (NMCGA) brought suit challenging the reintroduction of the Mexican wolf. [FN76] The U.S. District Court for the District of New Mexico upheld the FWS decision. [FN77] The court rejected NMCGA's allegations regarding the livestock depredation rates, the hybridization of the reintroduced population, the existence of a naturally occurring Mexican wolf population, the impact on other endangered and threatened species, federal consultation with state and local governments, and the need for a Supplemental Environmental Impact Statement. [FN78] The Mexican wolf population is expanding despite numerous obstacles. [FN79]

 

In light of the success of wolf recovery, DOI issued a Proposed Rule on July 13, 2000 that established four DPSs in the western Great Lakes, Northeast, West, and Southwest and downlisted the gray wolf from an endangered to threatened species throughout most of its historic*46 range, except the Southwest. [FN80] Secretary of the Interior, Bruce Babbitt, declared:

 

Wolves are living symbols of the regard Americans have for things wild. We as a people have made the choice to do the right thing and bring these animals back from the brink of extinction. We have weighed the cost of saving an irreplaceable part of our world and found it to be worth our effort. [FN81]

 

The Final Rule, which was issued on April 1, 2003, established only three DPSs in the East, West, and Southwest and downlisted the gray wolves in the Eastern and Western DPSs. [FN82] All the wolves in the western Great Lakes, specifically those in Michigan and Wisconsin, were reclassified as a threatened species. [FN83] Gray wolves in the remaining Eastern DPS states, including those in the Northeast, were also downlisted. [FN84] Wolves in the northern Rockies, including those in Montana and Idaho, were downlisted to threatened species, but the regulation regarding the nonessential experimental populations in Wyoming and Idaho remained in place. [FN85] Gray wolves were downlisted in the remaining Western DPS states, including Washington, Oregon, California, Nevada, parts of Idaho, Montana, Utah, and Colorado. [FN86] The downlisting of the gray wolf to threatened species status permitted their taking pursuant to section 4(d) regulations and moved the gray wolf one step closer to delisting. [FN87] The gray wolf was delisted in fourteen southeastern and mid-Atlantic states because the region was not part of the gray wolf's historic range. [FN88] Gray wolves in the Southwest DPS retained their endangered species status. [FN89] On the *47 same day, DOI issued an Advanced Notice of Proposed Rulemaking, which announced its intention to pursue the delisting of the gray wolf in the Eastern and Western DPS and the removal of all nonessential population designations in the northern Rocky Mountains. [FN90] Secretary Norton stated, “Thirty years ago, the future of the gray wolf in the United States outside of Alaska was anything but certain. Today we celebrate not only the remarkable comeback of the gray wolf, but the partnerships, dedicated efforts and spirit of conservation that have made this success story possible.” [FN91]

Defenders of Wildlife (DOW), representing nineteen environmental groups, brought suit challenging the downlisting of the gray wolf across much of its historic range in the Eastern and Western DPSs. [FN92] The U.S. District Court for the District of Oregon, in Defenders of Wildlife v. Secretary, U.S. Department of the Interior, held in favor of DOW. [FN93] The court determined that the Secretary of the Interior's (SOI) interpretation of “significant portion” of the gray wolf's range was contrary to the ESA and case law. [FN94] The SOI's implementation of the DPS policy violated DOI's own regulation, as well as the ESA. [FN95] Since the SOI's analysis was limited to the gray wolf's current range, her conclusions regarding the five downlisting factors set forth in section 4(a) of ESA were invalid. [FN96] As a result, the gray wolf remains an endangered species in the continental United States, except in Minnesota and the experimental population areas located in Wyoming, Montana, Idaho, Arizona, New Mexico, and Texas, where it is classified as a threatened species. [FN97]

The ESA defines a species-including subspecies-as endangered if it is “in danger of extinction throughout all or a significant portion of its range.” [FN98] A species is threatened if it “is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” [FN99] The U.S. Fish and Wildlife Service (FWS) limited its analysis to the gray wolf's current range-the western Great Lakes and northern Rockies-even though wolves live outside the core areas. [FN100] The FWS defined “significant portion of its range” as “that area that is important or necessary for maintaining a viable, self-sustaining, and evolving representative population or populations in order for the taxon to persist into the foreseeable future.” [FN101] The FWS concluded that “the presence or absence of gray wolves outside of core recovery areas is not likely to have a bearing on the long-term viability of the three wolf populations,” [FN102] such that threats to the species outside core areas in the western Great Lakes and northern Rockies did not have to be evaluated. [FN103]

 

In Defenders Of Wildlife, the court rejected DOI's interpretation, finding the gray wolf “extinct throughout a significant portion of its range [because] there are major geographical areas in which it is no longer viable but once was.” [FN104] The court held that there are major geographic areas outside the western Great Lakes and northern Rockies in the historic range of the gray wolf that still can provide a suitable habitat for the species. [FN105] The FWS acknowledged the existence of extensive potential wolf habitat in the Northeast-Maine, New Hampshire, and New York-and the Northwest-Washington and Oregon-and the dispersal of wolves to North and South Dakota. [FN106] *49 The court recognized that the SOI had broad discretion in determining what constituted a significant portion of the range because the term was not defined in the statute. [FN107] Nevertheless, the SOI still had to explain why potential wolf habitat within the wolf's historic range where the wolf could still survive did not constitute a significant portion of the gray wolf's range. [FN108] The existence of viable wolf populations in the western Great Lakes and northern Rockies did not render areas in the remainder of the gray wolf's historic range insignificant. [FN109] The court found that the SOI's interpretation was contrary to legislative history and case law. [FN110]

 

The court's decision was consistent with the text, intent, and purposes of the ESA. [FN111] The legislative history of the ESA shows congressional intent to narrow the focus of the ESA from a species facing worldwide extinction to a species facing extinction only in a significant portion of its range, and to extend ESA protection from endangered species to threatened species. [FN112] The purpose of the statute is to protect not only endangered and threatened species, but also the ecosystems on which they depend. [FN113] The FWS interpretation, which focused solely on the area significant to the taxon as a whole, was contrary to the ESA. [FN114] Even the FWS recognized problems with its analysis. [FN115] The FWS approach was not supported by the case law. [FN116] Finally, significant portions of the gray wolf's historic range can support gray wolf populations. [FN117] The gray wolf could not be downlisted across its historic range because it was absent from ninety-five percent of its historic range. [FN118]

In Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., the Supreme Court developed a two-step process regarding judicial review *50 of an agency's legal interpretation. [FN119] First, a court must determine “whether Congress has directly spoken to the precise question at issue.” [FN120] If Congress has not addressed the issue, a court can “not simply impose its own construction on the statute.” [FN121] Instead, the court must move on to the second step to determine “whether the agency's answer is based on a permissible construction of the statute.” [FN122] Justice Stevens, the author of Chevron, later declared that a “pure question of statutory construction [is] for the courts to decide [by] [e]mploying traditional tools of statutory construction,” which include the text, intent, and purposes of the statute. [FN123] A court's inquiry begins with the text of the statute, which has been enacted into law through the constitutionally prescribed process. [FN124] The text, which is known to the litigants and the public, is the best evidence of legislative intent. Reliance on the text confines the court's inquiry, increases the probability of obtaining judicial agreement in a particular case, and provides certainty and predictability in the law. [FN125]

 

The term “significant portion of its range” is ambiguous. The U.S. Court of Appeals for the Ninth Circuit addressed this issue in Defenders of Wildlife v. Norton (Norton-Lizard), in which the plaintiff challenged the FWS's refusal to list the flat-tailed horned lizard as an endangered species. [FN126] The FWS determined that suitable habitat on public land ensured the lizard's viability, despite threats to the species on private land. [FN127] DOW argued that the lizard's private land habitat constituted a significant portion of its range where its survival was in *51 jeopardy. [FN128] The Ninth Circuit did not find the text of the ESA illuminating. [FN129] After examining the dictionary definition of extinction, the Ninth Circuit determined the phrase “significant portion of its range” to be an oxymoron because “extinction suggests total rather than partial disappearance.” [FN130] The statutory language was “inherently ambiguous, as it appear[ed] to use language in a manner in some tension with ordinary usage.” [FN131]

 

The Ninth Circuit in Norton-Lizard rejected the SOI's interpretation that a species was only entitled to ESA protection if it “faces threats in enough key portions of its range that the entire species is in danger of extinction, or will be within the foreseeable future” because it rendered the “significant portion of its range language” superfluous. [FN132] The court followed “a ‘natural reading ... which would give effect to all of [the statute's] provisions.”’ [FN133] By equating “a significant portion of its range” with all of the gray wolf's range, the SOI violated the rule. [FN134] The Ninth Circuit concluded that species could be extinct “throughout ... a significant portion of range” if there are major geographic areas in which it is no longer viable but once was. [FN135] The Ninth Circuit decision indicates that a species can have a different status in different portions of its range. [FN136]

 

If the text does not answer the interpretative question, the court should examine the legislative history to discover the legislative intent, [FN137] which is how the enacting legislature would have resolved the interpretative question. Studying the legislative history allows the court to properly defer to the legislature, and establishes criteria of reliability to help the court select and weigh elements of the language *52 in the legislative context. [FN138] The two predecessor statutes of the ESA described endangered species as those facing complete extinction. The Endangered Species Preservation Act of 1966 defined an endangered species as one whose “existence is endangered because its habitat is threatened with destruction, drastic modification, or severe curtailment, or because of overexploitation, disease, predation, or because of other factors, and that its survival requires assistance.” [FN139] The Endangered Species Conservation Act of 1969 identified an endangered species as one which is threatened with “worldwide extinction.” [FN140]

The Endangered Species Act of 1973 expanded the definition of an endangered species to one facing “extinction throughout all or a significant portion of its range.” [FN141] The House Merchant Marine and Fisheries Committee stated that this major change represented “a significant shift in the definition in existing laws which considers a species to be endangered only when it is threatened with worldwide extinction.” [FN142] The new language was added to encourage greater federal-state cooperation [FN143] and grant the SOI greater flexibility regarding wildlife management. [FN144]

 

*53 The ESA recognizes that different populations of the same species can have different status in different parts of its range. For example, grizzly bears were listed as threatened species within the forty-eight contiguous states, but not in Alaska. [FN145] “[O]nly the California, Oregon, and Washington populations of the marbled murrelet, whose range in North America extends from the Aleutian Archipelago in Alaska to Central California, are listed as threatened.” [FN146] The desert big horn sheep is only listed as an endangered species in peninsular ranges of southern California, although its range extends into Baja California. [FN147] Only the population of Stellar sea lions occurring west of 144 degrees West longitude are listed as endangered species, while the remaining population is listed as threatened. [FN148] Only the Florida population of the Audubon crested caracara, a hawk that ranges from Florida, southern Texas and Arizona, northern Baja California, and south to Panama, is listed as a threatened species. [FN149] The piping plovers in the watershed of the Great Lakes are listed as endangered species, but are only a threatened species throughout the remainder of their range. [FN150]

There was an attempt to change the statutory text in 1978. [FN151] Senator Bartlett proposed an amendment, which changed the “significant portion of its range” language to “the essential portion of its range.” [FN152] Senator Bartlett was worried that the construction of the *54 Lukfata Dam on the Glover River in his home state of Oklahoma would be halted because it diminished the range of the Leopard Darter, an endangered species, by twelve percent. [FN153] Senator Wallop offered an amendment incorporating Senator Bartlett's language, which defined essential as “that portion of the range necessary for the continued survival and recovery of the species.” [FN154] The Senate passed the amendment, but it was not accepted by the conference committee. [FN155] The failure of Congress to adopt this amendment represents an explicit rejection of DOI's definition of “significant portion of its range.” [FN156]

 

There was also language in the 1978 House Merchant Marine and Fisheries Committee Report indicating that the term “range” refers to the “historical range” of the species. [FN157] Section 4(c)(1) required the SOI to publish a list of endangered and threatened species and specify the portion of the range in which they were protected. [FN158] The committee bill amended section 4(c)(1) to require the SOI to include critical habitat designations on endangered and threatened species lists. [FN159] The committee stated that “[t]he term ‘range’ is used in the general sense, and refers to the historical range of the species.” [FN160] The amendment was adopted by the conference committee. [FN161]

 

Further guidance and clarification of statutory meaning are found in the statutory purposes. [FN162] While more abstract in nature than the legislative intent, statutory purposes help the court to determine legislative intent, direct the court when legislative intent has *55 not been manifested, and allow the court to keep the statute in harmony with contemporary values. [FN163] The ESA is concerned with the protection, conservation, and restoration of endangered and threatened species and the ecosystems on which they depend. [FN164] Congress was particularly concerned with the protection of ecosystems. [FN165] Congress found “[t]he two major causes of extinction are hunting and destruction of natural habitat.” [FN166] The most crucial was the destruction of natural habitat. [FN167] Congress recognized that the “critical nature of the interrelationships of plants and animals between themselves and with their environment ... [demonstrates that the] ecologists' shorthand phrase ‘everything is connected to everything else’ is nothing more than cold, hard fact.” [FN168]

 

Congress mandated that the ecosystems be preserved to protect endangered and threatened species. [FN169] The House Merchant Marine and Fisheries Committee stated: “As we homogenize the habitats in which these plants and animals evolved, and as we increase the pressure for products that they are in a position to supply (usually unwillingly) we threaten their-and our own- genetic heritage. The value of this genetic heritage is, quite literally, incalculable.” [FN170] The ESA Amendments of 1982 stressed the importance of ecosystem conservation. [FN171] The Senate Environment and Public Works Committee asserted that all taxonomic groups, even plants and invertebrates, should receive equal treatment under the ESA because they “form the *56 bases of ecosystems and food chains upon which all other life depends. The Act's stated purpose is to conserve ecosystems.” [FN172] The conference committee noted that “individual species should not be viewed in isolation, but must be viewed in terms of their relationship to the ecosystem of which they form a constituent element.” [FN173] The conference committee declared that “the purposes and policies of the Act are far broader than simply providing for the conservation of individual species or individual members of listed species.” [FN174]

 

The ESA is designed to protect ecosystems, [FN175] which are defined as “communit[ies] of organisms interacting with one another and with the chemical and physical factors making up their environment.” [FN176] Ecosystems are comprised of individuals that are linked genetically with past, present, and future members of the same species. [FN177] Individuals are members of species that have adjusted to different environmental conditions and are storehouses of information about how and why the species exists as it is, as a result of physical, chemical, and biological forces. [FN178] Ecosystems provide matrices for the interaction and preservation of species. [FN179] Given the vast array of interactions between species, ecosystems are greater than the sum of their parts. [FN180]

 

All organisms rely on a healthy ecosystem, which depends upon the viability of species whose interactions regulate the system. [FN181] There is a hierarchy within the ecosystem. [FN182] Keystone species, which link other species to the food chain above and below themselves, include*57 predator, prey, plants, links, and modifiers. [FN183] All species are interconnected, so the removal of one keystone species can lead to population changes or severe physical disturbances. [FN184] Disruptions in the ecosystem cause environmental instabilities that diminish nature's ability to establish food chains, cycle nutrients, maintain air and water quality, control the climate, maintain the soil, dispose of waste, pollinate crops, and control pests and disease. [FN185] Robert Constanza estimated the value of ecosystem services in the range of $16 to $54 trillion per year. [FN186]

 

Ecosystem maintenance requires biodiversity, which is based on a diverse gene pool. [FN187] The degree of complexity necessary for healthy maintenance is unknown. [FN188] Paul and Anne Ehrlich equate the loss of species to the loss of structural rivets on an airplane-a dozen may never be missed, but the loss of the thirteenth might spell disaster. [FN189] Predators, like the wolf, play an important role in the ecosystem. [FN190] The wolf provides sustenance for the entire food chain. [FN191] After wolves make a kill, other scavengers take their share, insects clean the carcass, and birds feed on the insects. [FN192] The wolves also maintain the balance between predators. [FN193] Wolves limit the coyote population, *58 which grows in their absence. [FN194] This replenishes the coyote's prey, mainly rodents, which feed predatory birds such as hawks, eagles, and owls. [FN195] The reduction in the coyote helps the fox, which coexists with the wolf. [FN196] The wolf keeps its prey in check, affects prey behavior, and increases the supply and diversity of plant life. [FN197] This “top-down” effect, which is known as a trophic cascade, varies across ecosystems because of food web complexity, diversity, productivity, and other factors. [FN198] The wolf helps to maintain the health of the ecosystem, [FN199] which is one of the central purposes of the ESA. [FN200]

The FWS failed to assess the threats to gray wolves across a significant portion of its range, which includes the suitable habitat within the gray wolf's historic range. [FN201] The FWS analysis was limited to gray wolf's current range. [FN202] The federal district court in Defenders of Wildlife did not have to defer to the FWS definition regarding the significant portion of the range. [FN203] The FWS definition, which was developed at a Marymount University meeting in 2000, was not part of the Proposed Rule or the Final Rule. [FN204] The definition appeared for the first time during the litigation, so was therefore a post-hoc rationalization. [FN205]

 

*59 After the Proposed Rule, but prior to the Final Rule, the Ninth Circuit rendered its decision in Defenders of Wildlife v. Norton (Norton-Lizard), which defined the significant portion of the range as that area where the species once was but is no more. [FN206] Despite the Norton-Lizard decision, the FWS determined that the significant portion of the gray wolf's range was only its current range. [FN207] Martin Miller, chief of the Branch of Recovery and Delisting in the FWS's Endangered Species Program, explained that the “‘range’ in ‘significant portion of the range’ should be interpreted in most cases, and specifically for the gray wolf, as ‘current range.”’ [FN208] DOI argued that the FWS analysis was not based on the current range. [FN209] Martin Miller later admitted that he did not know enough detail to realize whether he was mischaracterizing anything or missing something. [FN210] The principal authors of the Final Rule, Ron Refsnider and Ed Bangs, disagreed with Miller's conclusion and adopted the Marymount definition in the Final Rule, which was consistent with the Ninth Circuit's decision. [FN211]

 

It is not relevant whether DOI relied on Miller's current range or the Marymount definition in the Final Rule. In either case, the result was the same: the unit of analysis was the current range of the gray *60 wolf, not its historic range. [FN212] Even Ron Refsnider, the author of the Final Rule, recognized problems with this approach. Refsnider noted:

 

We listed [the gray wolf] across the 48 states, yet we're recovering it in only three portions of that listed range. Even if the recovery criteria for all 3 recovery plans are fully met, we'll only have viable gray wolf populations in 5-10 percent of the historical range. Can we delist such a species under the 9th Circuit's interpretation? We might be able to delist only in [Minnesota], [Wisconsin], the Upper Peninsula of Michigan, and parts of the Rockies.” [FN213]

 

The FWS could not downlist the gray wolf across its historic range because it was absent from a significant portion of its historical range. [FN214]

The SOI's definition of “significant portion of its range” was contrary to case law. The courts principally adopted a geographic or quantitative definition, and secondarily a functional definition, for “significant portion of its range.” [FN215] DOI's definition that the key factor determining the significant portion of the range was the relevance to the survival of the taxon as a whole was consistently rejected.

 

In Norton-Lizard, the U.S. Court of Appeals for the Ninth Circuit dealt with the SOI's refusal to list the flat-tailed horned lizard because sufficient public land habitat ensured the viability of the species. [FN216] According to the SOI, a species can only be protected if it “faces threats in enough key portions of its range that the entire species is in danger of extinction, or will be within the foreseeable future.” [FN217] The SOI “assumes that a species is in danger of extinction in ‘a significant portion of its range’ only if it is in danger of extinction everywhere.” [FN218] The Ninth Circuit determined that the SOI's definition, which focused only on the risk of extinction to the taxon as whole, wrote the “significant portion of its range” language out of the statute.*61 [FN219] The Ninth Circuit held “that a species can be extinct ‘throughout ... a significant portion of its range’ if there are major geographic areas in which it is no longer viable but once was.” [FN220] The FWS should have analyzed the status of the flat-tailed horn lizard on thirty-four percent of its historic range, which constituted a significant portion of its range. [FN221]

 

In Defenders of Wildlife v. Norton (Norton-Lynx), the federal district court focused on the FWS determination of the significant portion of the lynx range. [FN222] The historic range of the lynx was comprised of four regions: Northeast, Great Lakes, southern Rocky Mountains, and northern Rocky Mountains. After protracted litigation prompted administrative action, [FN223] the FWS listed the lynx as a threatened species in a contiguous U.S. DPS, but the “Northeast, Great Lakes, and Southern Rockies do not constitute significant portion of the range of the DPS.” [FN224] The federal district court rejected the FWS decision to exclude a significant portion of the lynx range as “counterintuitive and contrary to the plain meaning of the ESA phrase ‘significant portion*62 of the range.”’ [FN225] The court held that the absence of the lynx in three of the four regions which comprise seventy-five percent of its historical range was a “noticeably or measurably large amount” of species range. [FN226] The court held that the “FWS's exclusive focus on one region where the lynx is more prevalent, despite its historic presence in three additional regions, is contrary to the expansive protection intended by the ESA.” [FN227]

 

In Southwest Center for Biological Diversity v. Norton, the federal district court addressed the FWS analysis of the significant portion of the goshawk range. [FN228] The FWS refused to list the goshawk as an endangered species over Vancouver Island, which constituted one third of its range, because there were viable populations on Queen Charlotte Island. [FN229] The FWS asserted that the Vancouver Island population was not significant for the survival of the taxon as a whole. [FN230] The federal district court found the loss of one third of the goshawk habitat was not crucial in itself, but Vancouver Island possessed the most suitable habitat for the goshawk. [FN231] There was productive old growth forest which contained nineteen of the goshawk's forty-three nesting areas. [FN232] The court held that this rich habitat constituted a significant portion of the goshawk range, so the FWS had to analyze the status of the goshawk on Vancouver Island. [FN233]

 

In Environmental Protection Information Center v. National Marine Fisheries Service, the federal district court reviewed the FWS determination of the significant portion of the green sturgeon's range. [FN234] The National Marine Fisheries Service (NMFS) discovered that the green sturgeon was not spawning in the South Fork Trinity River, the Eel River, and possibly the San Joaquin River. [FN235] The green sturgeon population had declined by eighty-eight percent across its historic range. [FN236] Despite the loss of spawning areas, the NMFS refused to consider*63 whether the green sturgeon was a threatened species in a significant portion of its range. [FN237] The federal district court found the decrease in spawning areas raised questions about the species viability in a significant portion of its range. [FN238] Green sturgeons have a strong homing instinct. [FN239] Green sturgeons not spawning in areas they once were might be dying out. [FN240] The court determined that the NMFS did not qualitatively assess the impact of the loss of spawning grounds on the status of the green sturgeon. [FN241] Nevertheless, the court specifically noted that the NMFS had to “focus on continued viability of the species ... in a fixed geographical area that is part of [its] historical range.” [FN242]

There are other significant areas within the historical range of the gray wolf that can support gray wolves. [FN243] Scientific studies show there is suitable wolf habitat in the Pacific Northwest. [FN244] Gray wolves have been sighted in Washington and Oregon. [FN245] The northern Cascades and Selkirk Mountains in Washington have high potential for wolf recolonization because of their close proximity to the Canadian and northern Rocky Mountain wolf populations, as well as the prevalence of public lands. [FN246] Other potential areas include Washington's Olympic Peninsula, the Blue Mountains of southeastern Washington and northeastern Oregon, the Siskiyou Mountains of southern Oregon and northern California, and the northern Sierra Nevada Mountains in California. [FN247] Studies demonstrate that 470 wolves can live in the complex of wildlands that include the Modoc Plateau of California and Oregon and the southern Oregon Cascades. [FN248] Another recent study shows that Oregon can support 2200 wolves. [FN249]

 

*64 The southern Rocky Mountains, which extend from south-central Wyoming to northern New Mexico, contain some of the best wolf habitat in the United States. [FN250] This 41 million-acre region includes 25 million acres of public lands and has abundant elk and deer populations. [FN251] The southern Rocky Mountains region contains one and a half times more public land than is available in the Greater Yellowstone Ecosystem, almost twice as much land as available in central Idaho, and six times the amount of public land available in the Blue Range Wolf Recovery Area (BRWRA) in Arizona and New Mexico. [FN252] The region contains 1.7 to 25 times more public land than other sites considered for wolf restoration. [FN253] The region contains roadless areas and wilderness, which equals seventy percent of the wilderness available to wolves in the Yellowstone area. [FN254] It is equivalent to the amount of wilderness available to the wolves in central Idaho and about four times the amount of wilderness available to Mexican wolves in BRWRA. [FN255]

 

The absence of wolves in the southern Rocky Mountains region represents a significant gap in the taxon. Since the region is equidistant from the northern Rockies and the BRWRA, the establishment of a southern Rocky Mountain wolf population would create “a spatially segregated population of wolves that extended from the Arctic to Mexico.” [FN256] David Mech, a noted wolf expert, declared that “[southern Rocky Mountain] restoration could connect the entire North American wolf population from Minnesota, Wisconsin, and Michigan through Canada and Alaska, down the Rocky Mountains into Mexico. It would be difficult to overestimate the biological and conservation value of this achievement.” [FN257]

 

FWS studies show the southern Rocky Mountains can support 1100 wolves. [FN258] Potential gray wolf restoration sites include the Vermejo Park Ranch/Carson National Forest complex, the San Juan *65 Mountains, Rocky Mountain National Park, and the Gunnison National Recreation Area. [FN259] There is also public support for wolf restoration in the region. [FN260] The southern Rockies have been described as “the mother lode for wolves.” [FN261]

 

There are additional areas in the Southwest that are amenable to wolves. [FN262] These areas include the Sky Islands ecosystem in southern Arizona and New Mexico, the Apache Highlands (White Mountain and San Carlos Apache Reservations), and Big Bend National Park and Big Ben State Park in Texas. [FN263]

 

The Northeast is another major geographic area that contains a suitable habitat to support wolves. [FN264] The population of wolves across the Canadian border in Quebec and Ontario can serve as a source population for recovery in the Northeast. [FN265] There have been unconfirmed reports of wolf sightings in the Northeast, which are suspected to be Canadian wolves. [FN266] The FWS suggested the establishment of a separate Northeast DPS in the Proposed Rule. [FN267] All of the peer reviewers who commented on the issue supported the establishment of the Northeast DPS. [FN268] Researchers estimate that the region can support over 1000 wolves. [FN269]

The definition of “species” in the ESA includes “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.”*66 [FN270] The ESA does not define “distinct population segment.” [FN271] In 1996, the FWS and NMFS adopted a joint DPS policy for purposes of listing, reclassifying, and delisting vertebrate species under the ESA. [FN272] A DPS is a group of vertebrate animals that is both discrete from and significant to the taxon as whole. [FN273] According to this policy, the population is discrete if it is “markedly separate from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors,” or “it is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of [section] 4(a)(1)(D) of the Act.” [FN274] Complete isolation from other populations of its parent taxon is not a necessary condition of discreteness. [FN275] State or other intra-national boundaries can not be used in determining the discreteness of a potential DPS. [FN276] However, a state boundary can be utilized for the demarcation of the DPS when the state boundary incidentally separates two DPS that are considered to be discrete on other grounds. [FN277]

 

The significance of the DPS is determined by its importance to the taxon as a whole. [FN278] Indicators include, but are not limited to, “the use of an unusual or unique ecological setting; a marked difference in genetic characteristics; or the occupancy of an area that, if devoid of the species, would result in a significant gap in the range of the taxon.” [FN279] If the population is both discrete and significant, it can *67 be evaluated pursuant to the five criteria of section 4(a)(1) for listing, downlisting, or delisting. [FN280] The FWS and NMFS recognized that the establishment of a DPS “may allow protection and recovery of declining organisms in a more timely and less costly manner, and on a smaller scale than the more costly and extensive efforts that might be needed to recover an entire species or subspecies.” [FN281] In the Final Rule, the FWS established the Eastern, [FN282] Western, [FN283] and Southwestern DPSs, which encompassed the historic range of the gray wolf. [FN284] The FWS determined that the areas were discrete because the current populations were separated from one another by large unoccupied areas. [FN285] There was no evidence of wolves migrating from one DPS to another DPS. [FN286] The three DPSs were significant because the loss of *68 any DPS would cause a significant gap in the range of the taxon. [FN287] In addition, the gray wolf populations in the three DPSs did not share the same genetic characteristics, so they represented different reservoirs of diversity. [FN288]

 

The federal district court in Defenders of Wildlife v. Secretary, U.S. Department of the Interior found the three DPSs inconsistent with the DPS policy and the ESA. [FN289] The court determined that the DPS policy was designed to encapsulate a population whose conservation status differed from other populations of the same species. [FN290] The FWS inverted this purpose to downlist large geographic areas. [FN291] The FWS established three DPSs, but acknowledged that only the gray wolf populations in the western Great Lakes and northern Rocky Mountains were recovered. [FN292] Other populations in the Northeast and Pacific Northwest were “tenuous or nonexistent.” [FN293] Instead of isolating the distinct populations in the western Great Lakes and northern Rockies, the FWS extended the boundaries of these two core areas to include the entire historic range of the gray wolf. [FN294] As a result, the conservation status of the population within each DPS varied from recovered to extinct. [FN295]

 

The SOI's implementation of the DPS policy involved a mix of legal and factual determinations. Generally, the court defers to an agency's policy decisions because of agency expertise. [FN296] Nevertheless, a court must perform a “thorough, probing, in-depth review” of agency action. [FN297] The “hard look” doctrine requires the court to examine the agency action “to satisfy itself that the agency has exercised a reasoned discretion, with reasons that do not deviate from or ignore *69 the ascertainable legislative intent.” [FN298] The court does not owe any deference to an agency when its action is inconsistent with statutory mandate. [FN299] There is no rational connection between the facts found and the choices made by the agency. [FN300] The agency ignores analysis of its own scientific experts without a credible explanation. [FN301] The agency decision, even if based on scientific expertise, is not well- reasoned. [FN302] The agency relies on factors Congress did not intend for it to consider. [FN303] The agency fails to consider an important part of the problem. [FN304] The agency refuses to consider data before it. [FN305] Rigorous judicial review “ensure[s] that the agency's decision was a ‘reasoned’ exercise of discretion and not merely a response to political pressures.” [FN306] The FWS establishment of three DPSs, which encompass the entire historic range of the gray wolf, was inconsistent with the legislative intent, the DPS policy, and the case law.

The FWS interpretation of the DPS policy was inconsistent with the legislative history, which demonstrates a progressive narrowing of focus of ESA protection from species, to subspecies, to discrete population segments. [FN307] The Endangered Species Preservation Act of 1966 provided limited protection for certain species of fish and wildlife threatened with extinction. [FN308] There was no concern with subspecies or populations. [FN309] The Endangered Species Conservation Act of 1969 protected species and subspecies of wildlife threatened with worldwide*70 extinction. [FN310] Congress was concerned with the limited scope of the statutes. [FN311] The ESA of 1973 protected endangered species and threatened species through all or a significant portion of their range. [FN312] Species were defined as “subspecies of fish or wildlife or plants and any other group of fish or wildlife of the same species or smaller taxa in common spatial arrangement that interbreed when mature.” [FN313]

 

The Endangered Species Act Amendments of 1978 established the current definition for a species as “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreed when mature.” [FN314] The conference committee explained that the new definition included “distinct populations” of vertebrate fish or wildlife. [FN315] Other definitions that excluded subspecies and populations were offered, but rejected in the floor debates. [FN316]

 

The Endangered Species Act Amendments of 1979 did not change the definition of species. [FN317] The legislative history is informative because the DPS listing was the subject of debate. The General Accounting Office (GAO) suggested that the DPS listing be terminated because it could “result in the listing of squirrels in a specific city park, even though there is an abundance of squirrels in other parks in the same city, or elsewhere in the country.” [FN318] The FWS and the NMFS opposed the GAO's suggestion because “it would severely limit their ability to require the appropriate level of protection for a species based on its actual biological status.” [FN319]

 

*71 The Senate Committee on Environment and Public Works, rejecting the GAO proposal, declared:

 

[T]here may be instances in which FWS should provide for different levels of protection for populations of the same species. For instance, the U.S. population of an animal should not necessarily be permitted to become extinct simply because the animal is more abundant elsewhere in the world. Similarly, listing of populations may be necessary when the preponderance of evidence indicates that a species faces a widespread threat, but conclusive data is available with regard to only certain populations.

 

Nonetheless, the committee is aware of the great potential for abuse of this authority and expects the FWS to use the ability to list populations sparingly and only when the biological evidence indicates that such action is warranted. [FN320]

 

The Endangered Species Act Amendments of 1982 did not change the definition of species, but were significant for several reasons. [FN321] First, special provisions provided for the release of an experimental population of endangered or threatened species, which is “wholly separate geographically from nonexperimental populations of the same species.” [FN322] Such a release can occur “outside the current range of such species if the Secretary determines that such release will further the conservation of such species.” [FN323] This demonstrates that Congress was aware of the difference between the current and historical range of the species. [FN324] Second, only biological categories could be utilized for the listing of “any species or subspecies of fish, *72 wildlife or plants and separate populations of vertebrate species.” [FN325] Third, only biological information could support listing decisions. [FN326]

 

The Endangered Species Act Amendments of 1988 did not change the definition of species, either. [FN327] The House Merchant Marine and Fisheries Committee Report stated, “[a]ny species or subspecies of fish, wildlife, or plants may be listed. In addition, geographically distinct populations of vertebrate species may be listed.” [FN328]

The FWS action was inconsistent with its own policy. The DPS policy focuses on discrete population segments, which are “markedly separated ... as a consequence of physical, physiological, ecological, or behavioral factors [or] ...delimited by international governmental boundaries.” [FN329] The DPS must be based on the best available scientific evidence, [FN330] which includes dispersal distances and other limiting factors, such as significant mountain ranges, bodies of water, deserts, or major urban areas. [FN331] The DPS policy expressly prohibits use of state boundaries to establish the DPS. [FN332] The three DPSs established by FWS were not based on science. [FN333] The FWS accumulated all of the states in the gray wolf's historic range and divided them into three DPSs. [FN334] Each DPS was too large and encompassed more territory than the gray wolves in the core areas would ever be able to reach or inhabit. [FN335] The DPS boundaries were not based on biology, but on politics. [FN336] Apparently, the FWS believed that this was “the best and *73 quickest way to get the policy and legal framework greased for wolf delisting.” [FN337]

 

In the Western DPS, the core wolf population in three states-Montana, Wyoming, Idaho-was on its way to recovery. [FN338] Six other states in the Western DPS had few, if any, wolves. [FN339] The FWS used the success in three core states to downlist the gray wolf in the other six states where its endangered status had not changed. [FN340] The FWS's own experts noted that the Western DPS was too large. [FN341] The boundaries of the Western DPS were not based on natural limitations *74 or dispersal distances, which are generally 250 miles. [FN342] FWS Western Regional Coordinator Ed Bangs acknowledged the massive size of the Western DPS when he declared there was no way that any gray wolves in the Western DPS would migrate below Interstate 70. [FN343]

 

The Eastern DPS was also not based on biology. [FN344] The Proposed Rule created two separate DPSs, one in the western Great Lakes and the other in the Northeast. [FN345] The Final Rule combined both areas into the Eastern DPS. [FN346] There was no way that the wolves in the western Great Lakes were going to migrate and populate the Northeast because the dispersal distance was too far and there were too many impediments. [FN347] Even the FWS Eastern Timber Wolf Recovery Team criticized the Eastern DPS for being too large. [FN348]

 

FWS experts supported the establishment of a separate Northeast DPS. [FN349] Ron Refsnider, author of the Final Rule, stated that the FWS abandoned the Northeast DPS because of political pressure. [FN350] In July *75 2001, after the election of George W. Bush, the FWS amalgamated the Northeast DPS into the Eastern DPS. [FN351] The FWS, noting internal disagreement regarding the issue, defended the abandonment of the Northeast DPS. [FN352] The FWS asserted that a wolf population had to be present in the Northeast to establish a separate DPS. [FN353] Furthermore, there was a real possibility that wolves in the Northeast were a different subspecies, [FN354] possibly the red wolf, the Algonquin wolf, a coyote-hybrid, or another canine. [FN355] Since there was no data on either the identity or existence of the wolf in the Northeast, a DPS could not be established. [FN356] A threatened species listing for New York, New Hampshire, Maine and Vermont was retained to protect any wolf that might arrive and preserve the option of recovery. [FN357] Due to uncertainty, the section 4(d) rule for the Eastern DPS did not apply east of Ohio. [FN358]

The FWS downlisting of the gray wolf was questionable under either rationale. [FN359] Wolves in the Northeast were either a different subspecies entitled to greater protection, which could not be amalgamated into a single DPS, or gray wolves whose absence in the region created a significant gap in taxon. [FN360] Since the benefit of doubt goes to the species, [FN361] the FWS should not have downlisted wolves in the Northeast.

 

The Southwest DPS, which extends beyond the historic range and dispersal distances of the reintroduced Mexican wolves, was also *76 too large and not based on scientific factors. [FN362] Ed Bangs, FWS Regional Coordinator, noted that no Mexican wolves were getting above Interstate 70. [FN363] Furthermore, the boundary established between the Western and Southwestern DPSs divided the southern Rockies ecosystem, which was identified by FWS experts as having some of the best remaining wolf habitat. [FN364]

 

Finally, the FWS argued that all the areas in the gray wolf's historic range must be included in the three DPSs. [FN365] The FWS claim was based on a memo by Ron Refsnider. [FN366] Neither the ESA nor the implementing regulations support the FWS position. [FN367] The ESA contemplates a national species listing and a DPS for the unique treatment of smaller populations of gray wolves. [FN368] Therefore, the DPS should be cut out of the historic range of the entire species and accorded unique treatment. [FN369] It should not serve as a vehicle for downlisting the entire species. [FN370]

The courts have not supported the FWS position. [FN371] In Norton-Lizard, the Nint