Montana FWP plans suit against feds over wolverine Endangered Species Act listing

Montana Fish, Wildlife and Parks filed a notice of intent to sue the U.S. Fish and Wildlife Service Friday within 60 days if it does not overturn its November decision to list wolverines as a threatened species under the Endangered Species Act.

“In Montana, wolverines continue to do well and inhabit much, if not all, of their available habitat,” FWP Chief of Conservation Policy Quentin Kujala said in a statement. “We work closely with our neighboring states to ensure the continued conservation of these iconic species. Federal protections in this case will only get in the way of good conservation work.”

FWP’s objection to the Fish and Wildlife Service’s decision involves contentions that the federal agency did not use the best available science about interconnectivity between wolverines in the Lower 48 and Canada, the range of the genetic pool between different populations, future snowpack changes due to climate change, nor wolverines’ supposed resilience to the effects of climate change and thinner snowpacks.

FWP’s notice of intent to sue says that USFWS has previously acknowledged wolverines in the Lower 48 “are not currently in danger of extinction” but also that they are threatened because of the effects “of climate change on spring snow.”

“In reaching this conclusion, the service has neglected to fully consider the breadth of evidence regarding wolverine adaptability to climate change, recreation, and genetic connectivity,” FWP’s Chief Legal Counsel Sarah Clerget wrote. “The service speculates on the impact factors A and E will have on the perpetuation of wolverines, while acknowledging the high levels of uncertainty among the factors. In short, the final rule will not protect wolverines, as there is a dearth of evidence supporting the species’ viability is threatened today or will be threatened by climate change impacts in the future.”

Some of the state’s argument involves different scientific studies USFWS has used in going back and forth during the previous 15 years to make different decisions on whether wolverines should be listed under the ESA in the Lower 48.

In 2008, it found there were not significant differences between the U.S. and Canadian populations, then in 2013 proposed listing them as threatened. But that proposal was withdrawn in 2014 before being reinstated in 2016 by a court order.

In 2020, USFWS withdrew the proposal again, and again found minimal distinction between the U.S. and Canadian populations. But conservation groups sued, and a federal court in Montana ordered a reevaluation, which led to a new Species Status Assessment addendum last year that informed the final rule published in November.

FWP says the USFWS 2020 finding that the Lower 48 wolverine population of an estimated 250-300 wolverines “to be the natural result of habitat fragmentation and not reflective of a difference in conservation status” means the more recent finding of a Lower 48 Distinct Population Segment was made in error.

“Under existing scientific evidence, the Canadian and United States’ wolverine population must be considered as one population. In doing so, it is clear that wolverine populations have expanded further south into the United States, not retreated, and that listing United States’ wolverines as threatened is arbitrary and capricious,” Clerget wrote.

FWP also believes the uncertainty in predicting how climate change will affect the landscape and the habitat of wolverines should not be considered as much of a factor because the state believes the wolverine population is expanding, according to the letter.

FWP said new research from last year from Scandinavia showed wolverines were more adaptable than previously thought to climate change and the effects of reduced snowpack in the spring.

“The primary argument the service uses for listing is how a lack of snow, due to climate change, will negatively affect wolverines; however, the service inadequately considered the potential for wolverines to adapt and thrive under a changing environment, as demonstrated by the best evidence available,” the notice of intent says.

FWP said in the letter that even with the USFWS model that predicts a roughly 30% decrease in snowpack during the next 50 years, other science has shown that the high-mountain areas where wolverines typically den will see less reduction than lower elevations.

“Wolverines have been found to use locally available denning structures in lowland habitats, despite a lack of deep snow and persistent spring snow cover …  This adaptive behavior suggests that wolverines are more flexible in their distribution than previously assumed,” the letter says. “These studies are not relying on projections, but provide direct evidence to the level of behavioral plasticity that wolverines have to a changing climate.”

The notice also takes issue with the genetic population size and gene flow science used in the final rule, saying the primary study used was flawed and other studies misinterpreted, and that even if there are fewer paths to genetic connectivity than thought, translocation of the animals could be used in the future if that is the case.

“In the Northern Rockies, wolverines are doing well and states are working closely on monitoring and conservation efforts. This listing is not only unnecessary, it fails to recognize current science,” FWP Director Dustin Temple said in a statement.

Before the decision was released in November, Montana’s three Republicans in the federal delegation — Sen. Steve Daines and Reps. Matt Rosendale and Ryan Zinke — had called on the agency to delay its decision. On Friday, Republican Montana Gov. Greg Gianforte said the decision on wolverines was “illogical and ill-informed.”

“In Montana, we’ve worked hard to manage and conserve the wolverine population and have partnered with neighboring states on research and monitoring efforts to ensure the future conservation of the species,” the governor said. “Adding a layer of unnecessary bureaucracy does nothing for conservation but does everything to undermine our responsible management of this species.”