WC has only seen three wolverines the wild. And none of them resulted in a photo.
WC saw the first on the third day of a torrential rainstorm, washed out of an attempt to climb Scott Peak, hiking out down Sunset Creek in Denali National Park. That wolverine was loping steadily upstream – the gait is unmistakable – on the other side of the flood-swollen creek in the hard rain, not looking any happier drenched than we did.
The second was on a canoe trip down the Delta River. Another canoe had capsized, and we were on the west bank, drying stuff out and warming the cold, wet folks up, when a wolverine came down a cut bank maybe 50 meters downstream on the other side of the river. The animal calmly drank a little water, sniffed the air and then headed downstream, out of sight.
The third and last was in another rainstorm. WC was solo backpacking in the Brooks Range, west of the Dalton Highway, just north of Atigun Pass. A series of massive thunderstorms had caused serious flash flooding, forcing WC on a long detour around ridiculously high creeks he had stepped over earlier. In light rain, WC crested a knoll and there was a wolverine walking towards WC, fifty feet away. We saw each other at about the same time. We both stopped and stared at each other for at least a couple of minutes. WC really didn’t have much choice on his route, but took a step backwards, and then another. The wolverine turned around and went back the way he had come.1
WC shares those few experiences because in the Lower 48, unlike Alaska, the wolverine, Gulo gulo, is in deep trouble. Habitat loss and fragmentation combined with unrelenting hunting and trapping pressure has decimated stateside populations. Since 2003, there have been efforts to obtain endangered species status for the Lower 48 population. The timeline shows how frustrating the process has been:
|2003||First petition filed with the U.S. Fish & Wildlife Service (USFWS) to have Lower 48 wolverines classified as an endangered species under the Endangered Species Act (ESA).|
|2008||USFWS determines the Lower 48 population is not a “discrete population segment” eligible for protection under ESA.|
|2010||USFWS reverses itself, determining the Lower 48 population is a “discrete population segment,” but determines further progress towards listing is “precluded by higher priority listing actions.”|
|2013||USFWS reaffirmed it’s a “discrete population segment,” and finally proposed to list the species as “threatened.”|
|2014||USFWS reverses itself, and withdraws the proposed listing|
|2014||Environmental groups sue USFWS, challenging the withdrawal of the proposed “threatened” classification|
|2016||U.S. District Court vacated the USFWS withdrawal, sending the matter back to USFWS for reconsideration. Wolverines are again proposed to be listed.|
|2020||USFWS again withdraws the proposed listing.|
|2020||Environmental groups again sue the USFWS, challenging the withdrawal of the proposed classification.|
|2022||Latest court ruling.|
This time, before the District Court could even rule, before the cases was even fully briefed, the USFWS requested the case be remanded back to USFWS for reconsideration of its 2020 decision. Still at issue, though, was the status of the the Lower 48 wolverine population while the USFWS yet again reconsidered the wolverine’s status.
The District Court has a tool called vacatur – lawyer-Latin for “vacate” – by which it can tell an administrative agency on remand that whatever agency action had been the subject of the lawsuit was undone, vacated, while the administrative agency decides what to do. In this case, vacatur would have restored the wolverine to proposed for listing as an endangered species. Without vacatur, the wolverine would be entirely unprotected. USFWS argued against vacatur. If anyone is surprised, they shouldn’t be. The State of Idaho joined USFWS. The environmental organizations pressed strongly for vacatur. The court concluded, under all of the relevant tests, “Plaintiffs have the better argument.” The court was particularly concerned that the additional published papers on wolverines had been available when the USFWS issued its 2020 withdrawal of the listing: “It is troubling that the scientific studies the agency now contends warrant further review existed at the time the Service made its 2020 decision but were not considered.”2 So the District Court granted vacatur.
That doesn’t mean the Lower 48 wolverine is a protected species under the ESA. But it does mean that the wolverine is again proposed for protection. The withdrawn rule making that proposal is, as it were, “un-withdrawn” and back on the books. It’s nearly protected status.
WC suspects what’s really at issue here, and the reason the State of Idaho stuck its nose in, is that each wolverine has a very large range, averaging 250 square miles per animal in the Intermountain West. Any plan that will protect the species will necessarily involve huge tracts of land, and will impose significant restrictions on human activities over those vast tracts. Human economic activities on good wolverine habitat are likely to be severely constrained if not outright barred under any likely management plan. Those aren’t supposed to be legitimate considerations in determining ESA status. But it might be that USFWS’s 20 year record of dragging its feet, hemming and hawing, flipping and flopping, is a consequence of what any serious wolverine recovery plan might say.
In the meantime, score it as mostly a win for the wolverine and those who want to preserve one of the emblematic species of true wilderness.
1 It doesn’t escape WC’s attention that all three encounters involved water that might very well have masked the human scent. Wolverines, WC believes, avoid being seen by humans when they can.
2 A study by Garth Mowat is publicly available and argues persuasively that even Southern Canadian wolverines in rapid decline. It was published in November 2019 but somehow the USFWS failed to see it before withdrawing protected status in October 2020.