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Judge Rules Feds Improperly Refused to Protect Wolverines

April 4, 2016
Bethany Cotton (503) 327-4923 bcotton@wildearthguardians.org
In This Release
Climate + Energy   Wolverine
Monday, April 4, 2016
Judge Rules Feds Improperly Refused to Protect Wolverines

Orders Reconsideration of Safeguards for Species Imperiled by Climate Change
Contact: Bethany Cotton (503) 327-4923 bcotton@wildearthguardians.org

Additional Contacts:

Matthew Bishop, WesternEnvironmental Law Center, 406-422-9866, bishop@westernlaw.org

Nick Cady, Cascadia Wildlands,314-482-3746, nick@cascwild.org

MISSOULA, Mont. – Today, the federal district court forMontana rejected a decision by the U.S. Fish and Wildlife Service (Service) todeny protections for wolverines in the contiguous U.S. The court ruled theService improperly ignored science and violated the Endangered Species Act. Abroad coalition of conservation organizations challenged the Service’s refusalto protect imperiled wolverines by listing them under the ESA.

“Today’s win is a victory not just for wolverine but for allspecies whose fate relies on the scientific integrity of the Fish and WildlifeService,” said Bethany Cotton, wildlife program director for WildEarthGuardians. “We call on the agency to stop playing politics and start living upto its mandate to protect our country’s most imperiled species.”

Often called “southern polar bears,” wolverines are custom builtfor cold, snowy climates and depend on areas with spring snow for denning andyear-round habitat. Science shows climate change may eliminate nearlytwo-thirds of the snowy habitat needed by wolverines in the contiguous U.S.within 75 years. This means significantly less habitat and/or worsened habitatfragmentation for the approximately 250-300 wolverines that remain in the lower48 states.

The Service originally identified climate change, inconjunction with small population size, as the primary threat to wolverineexistence in the contiguous U.S. Published, peer-reviewed research, the largerscientific community – including the Society for Conservation Biology – anindependent scientific panel, the majority of experts who reviewed the decision,and the Service’s own biologists all verified this finding. The Serviceproposed listing the wolverine as a “threatened” species under the ESA in 2013.At the eleventh hour, however, the Service reversed course and chose not toprotect wolverine, citing too many “uncertainties” in the scientificliterature.

Today, the court rejected this excuse, holding the agency accountablefor its decision to discount the best available science about climate impactson wolverine. “[T]he Service’s decision against listing the wolverine asthreatened under the ESA is arbitrary and capricious. No greater level ofcertainty is needed to see the writing on the wall for this snow-dependentspecies standing squarely in the path of global climate change. It has taken ustwenty years to get to this point. It is the [Court’s] view that if there isone thing required of the Service under the ESA, it is to take action at theearliest possible, defensible point in time to protect against the loss ofbiodiversity within our reach as a nation. For the wolverine. That time is now.”Opinion at page 83.

The court correctly noted that the ESA directs the Service tomake listing decisions based on the bestavailable science, not the best possible science. This means the agencycannot make the perfect the enemy of the good. Instead, it must use and rely onthe best science available when making listing decisions, which it failed to doin this case.

“The court sent a clear message to the Service: don’t letpolitics trump science,” said Matthew Bishop, a Western Environmental LawCenter attorney who represented the conservation groups. “The Service cannotignore the published literature and advice of its own biologists when makingimportant listing decisions.”

Today’s ruling requires the agency to make a new finallisting determination for wolverines. The ruling also restores the Service’sproposed rule to list wolverine and the wolverine’s status as a candidatespecies under the ESA.

“Cascadia Wildlands is very encouraged by the court’srejection of political game playing by the U.S. Fish and Wildlife Service,”said Nick Cady with Cascadia Wildlands. “As with all species, wolverinesdeserve conservation and protections based upon sound science. This legalvictory sets the stage for further reform of a deteriorating U.S. Fish andWildlife Service, and the installment of protections for this strugglingspecies across the West.”

“We hope the Fish and Wildlife Service wastes no more timein granting wolverines Endangered Species Act protection,” said Keith Hammer, chairof Swan View Coalition. “This rare species deserves all the help it can get aswe hit record-setting temperatures here in Montana.”

“We need to do everything we can to protect wolverines andwolverine habitat in the face of climate change and a snowballing extinctioncrisis,” said Greg Costello, executive director of Wildlands Network. “Ouractions should be rooted in precaution and the best available science—notpolitical nitpicking.”

“With only 300 wolverine spread across the Western U.S., itis refreshing to see the court appreciates the precarious state of wolverinepopulations and confirm the findings of the Fish and Wildlife Service’s ownbiologists that the species merits ESA protection,” said ecologist GeorgeWuerthner.

“Wolverines deserve protection, not political shenanigans,”said Arlene Montgomery of Friends of the Wild Swan. “The Fish and WildlifeService must now do its job to protect and recover this imperiled animal.”

“It is reassuring to know that our court system is doing itsjob, even while other branches of government flounder,” said Larry Campbell ofFriends of the Bitterroot. “The U.S. Fish and Wildlife Service is apparentlywilling to illegally sacrifice an awesome species and good science whileineptly playing politics. Go wolverines!”

A copy of the decision is available here.

A copy of the original complaint is available here.

Matthew Bishop and John Mellgren of the WesternEnvironmental Law Center and Sarah McMillan of WildEarth Guardians representedWildEarth Guardians, Cascadia Wildlands, Alliance for the Wild Rockies,Cottonwood Environmental Law Center, Footloose Montana, Friends of theBitterroot, Friends of the Wild Swan, George Wuerthner, Helena Hunters andAnglers Association, Kootenai Environmental Alliance, Native Ecosystem Council,Oregon Wild, and the Swan View Coalition on the case.

Additional quotesfrom the decision:

“Why did the Service make the decision [to not list thewolverine]?…Based on the record, the Court suspects that a possible answer tothis question can be found in the immense political pressure that was broughtto bear on this issue, particularly by a handful of western states.” Opinion atpage 56.

“This strikes the Court as the essence of arbitrary andcapricious decision making.” Opinion at page 61 (discussing climate change claim).

“[A]s Plaintiffs’ counsel rightly pointed out … theService’s stance here borders on the absurd – if evidence shows that wolverinesneed snow for denning purposes, and the best available science projects a lossof snow as a result of climate where and when wolverines den, then what sensedoes it make to deny that climate change is a threat to the wolverine simplybecause research has yet to prove exactly why wolverines need snowfor denning?” Opinion at page 67 (discussing climate change claim).

“If ever there was a species for which conservation dependson foregoing absolute certainty, it is the wolverine.” Opinion at page 68(discussing why we don’t need absolute certainty for why wolverine need deeppersistent snow).


Wolverine number just 250-300 individuals in the contiguous U.S.and are dependent on high elevation habitat with deep winter snows. Imperiledby climate change, habitat loss and trapping, wolverine were first petitionedfor ESA protections in 2000. The Service found the petition did not containadequate information to justify a listing. A federal court overturned thatdecision in 2006. The Service then issued a negative 12-month finding in 2008,which was challenged in court resulting in a settlement that led to a newfinding that wolverine should be protected under the ESA, but that otherpriorities precluded the listing at that time. A landmark settlement withWildEarth Guardians, which resolves the backlog of imperiled species awaitingprotections, then guaranteed a new finding for wolverine. In February 2013, theService proposed listing the wolverine as “threatened” under the ESA. In August2014, however, the Service reversed course and issued a decision not to listthe species, contradicting its own expert scientists’ recommendations. Today’sruling is in response to the organizations’ legal challenge to that decision.

Wolverine pc David J Cox/Natural Exposures.com

© David J.Cox/NaturalExposures.com (high-res version here)


Other Contact
Matthew Bishop, Western Environmental Law Center, 406-422-9866, bishop@westernlaw.org