Washington Law Review


The Endangered Species Act (ESA) protects species that are in danger of extinction "throughout all or a significant portion of its range." After thirty-three years of protection by the ESA, the gray wolf is gradually recovering from the brink of extinction. Pressure to remove protections for existing gray wolf populations has mounted as human interests have increasingly conflicted with the gray wolfs resurgence. Most courts have defined the phrase "significant portion of its range" in the ESA to mean the historical range of a species. This interpretation is consistent with the legislative history of the ESA and the historical listing practices of the United States Fish and Wildlife Service (FWS). However, the FWS has recently designated and delisted discrete and significant gray wolf populations—termed "Distinct Population Segments" (DPSs)—based on the gray wolf's current range. This Comment argues that the FWS's action of designating and delisting these gray wolf DPSs is contrary to the ESA. By limiting the delisting analysis to the area within the DPS boundaries, the FWS circumvents the statutory requirement to assess threats to the gray wolf throughout its historical range. Moreover, this action does not comport with the DPS Policy promulgated by the FWS and National Oceanic and Atmospheric Administration (NOAA) Fisheries. Therefore the FWS's action of designating and delisting these gray wolf DPSs is arbitrary and capricious.

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