In a room packed with wolverine legal experts, U.S. District Judge Dana Christensen may have had the best brief. He actually saw the rare carnivore on three separate occasions.
“I don’t know what the odds are of seeing a wolverine three times,” Christensen told the attorneys, “but there’s no reason for any of you to explain it’s a member of the weasel family with large feet that eats marmots. I’ve seen that.”
Christensen added he also had read the scientific reports on the wolverine’s habitat and population, was aware of how elusive the animal is and how hard it is to study. What he wanted to know in the case of Center for Biological Diversity et. al. v. Interior Secretary Sally Jewell was whether an agency decision denying Endangered Species Act protection to wolverines was reasonable or arbitrary.
The oral arguments Tuesday came from Tim Preso and Matthew Bishop representing CBD, Conservation Northwest, Friends of the Clearwater, Greater Yellowstone Coalition, Idaho Conservation League, Jackson Hole Conservation Alliance, Klamath-Siskiyou Wildlands Center and Rocky Mountain Wild, and U.S. Department of Justice attorney Trent Crable representing the U.S. Fish and Wildlife Service along with a table of lawyers for the states of Montana, Wyoming and Idaho, farm bureaus from all those states, two Colorado snowmobile clubs and the American and Montana Petroleum Institutes.
Everybody in the Missoula courtroom agreed about 300 wolverines remain in the continental U.S., mostly in Montana. And they agreed that a 2011 study by Rocky Mountain Research Station scientist Kevin McKelvey was a solid block of evidence showing how climatic changes would affect where wolverines can live.
What they disputed was whether McKelvey’s study was enough to warrant federal protection for wolverines. The Fish and Wildlife Service decided it wasn’t, and ruled there was not sufficient evidence that wolverines might near extinction without agency action. Preso and Bishop argued there was, noting FWS used the same research in a draft decision granting wolverines protection in 2013, only to reverse course and deny it in the final decision a year later.
“We’re not asking the court to choose our preferred science over the agency’s preferred science,” Preso said. “We’re asking if the agency made a rational decision.”
Preso said FWS must use the best available science in determining a species' fate. In addition to discounting the McKelvey climate study, he said the agency ignored other established biological principles showing species are at risk when their population gets below around 50 breeding-age females. Wolverines have an estimated 36 breeding-age females in the continental U.S., which could lead to inbreeding, loss of genetic diversity and inadequate reproduction.
In the government’s case, Crable countered that the McKelvey study wasn’t enough to demand agency action.
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“We must have sufficient information to form a reliable opinion,” Crable said. “That’s why the agency withdrew its ruling – there wasn’t sufficient evidence to make a reliable prediction of the foreseeable future.”
“So the same people who drafted the listing proposal had to draft the exact opposite position?” Christensen asked. “That must have been difficult for them, if not demoralizing.”
Crable replied that other FWS scientists believed the climate models in the McKelvey study weren’t accurate enough to predict wolverine habitat out to 2085, as the study attempted to do.
“The most sophisticated study available is not necessarily enough for a listing to answer that last, most important question,” Crable said. “The service can’t make a listing based on speculation. The burden of proof is on the agency to show why it is appropriate to list. And the modeling just isn’t good enough.”
When attorney Wayne D’Angelo got up to speak for the American Petroleum Institute and Montana Petroleum Institute, Christensen asked why his clients thought they had a dog in the fight. D’Angelo replied they worried they might face exploration limits if the wolverine got new federal protection. And there’s no reason to list it, D’Anglo argued, because after being nearly exterminated in the 1930s, wolverines have shown steady population growth to their current 300 census.
“And that’s happened at a time of higher threats from trapping and climate change,” he said. “The best available evidence is it will continue on.”
In his rebuttal, Preso said claims that wolverine numbers were increasing was just the kind of speculation FWS said it didn’t want to use.
“The service can’t point to undocumented conclusions as a panacea to well-documented problems and say, ‘Population growth will take care of it,’ ” Preso said. “Our knowledge of these animals is so lacking or based on sparse data that drastic changes (in population) could go unnoticed for years because of lack of monitoring.”
Crable retorted that the FWS decision wasn’t a coin-flip between equally compelling evidence.
“We have one study backed up by past work saying this is what we think will happen in 75 years,” Crable said. “We say that’s not good enough. That’s not flipping a coin. That’s making a decision.”