Montana Files Intent to Sue Over Listing Wolverines Under ESA

The question of whether the 300 or so wolverines in the Lower 48 should be protected under the Endangered Species Act will be heading back to court. But this time, the federal government will be arguing for, instead of against, protections.

Montana Fish, Wildlife and Parks on January 26 notified the U.S. Department of the Interior of their intent to sue, arguing that wolverines do not need special protections and that the science the U.S. Fish and Wildlife Service relied on in their November 2023 decision to list wolverines as “threatened” is flawed.

For decades, environmental groups have sued the U.S. Fish and Wildlife Service arguing that the snow-dependent species is threatened with extinction due to a warming climate, low genetic diversity and habitat fragmentation. The groups have consistently won in court, while the U.S. Fish and Wildlife Service failed to make a decision.

In 2013, the Fish and Wildlife Service announced that the species deserved protections under the ESA but changed its mind just a year later. Then, in 2018, the Trump administration conducted a new species status assessment that found wolverines were not threatened with extinction and ruled in 2020 that the species did not need protections. In November, however, the service finally made a determination that the wolverine is threatened with extinction, based on new science.

Montana is the first state that has announced an intent to sue, but the listing of wolverines has also been opposed by the states of Wyoming and Idaho, as well as industry groups such as the American Petroleum Institute, the International Snowmobile Manufacturers Association, the Western Energy Alliance, and the Utility Air Regulatory Group.

“The Biden administration’s decision to list wolverines as a threatened species is an illogical and ill-informed decision,” said Gov. Greg Gianforte in a January 26 statement. “Adding a layer of unnecessary bureaucracy does nothing for conservation but does everything to undermine our responsible management of this species.”

Wolverines were extirpated from the Lower 48 by the 1920s and naturally migrated back from Canada in the second half of the 20th century. Since then, the species has increased in number and distribution, but nailing down exact numbers is difficult. Wolverines have territories that are hundreds of square miles, and are extremely elusive.

In a 15-page letter, Montana Fish, Wildlife and Parks detailed concerns that the federal government’s science was arbitrary and capricious. According to the U.S. Fish and Wildlife Service, the effective population—the number of individual animals that contribute to the breeding population—of wolverines in the Lower 48 is around 35 individuals.

“It is critical to recognize that the estimate is almost certainly misleading about the evolutionary trajectory of wolverines in the Northern Rockies,” the letter read.

The state also argued that wolverines should not be considered a distinct population segment, meaning it is discrete from other populations. FWP’s letter said that the continuity of wolverines in the Lower 48 with wolverines in Canada makes the population much bigger than the Fish and Wildlife Service said. The state also contended that this gene flow between the Canadian population and the U.S. population makes them less genetically isolated than the listing rule argued.

FWP argued in addition that recent science shows that wolverines are more adaptable to a warming climate than the Fish and Wildlife Service gave them credit for.

Many of the state’s arguments rely on the 2020 decision by the Trump administration not to list the wolverine. However, a federal judge in Montana ruled that the decision by the Trump administration was arbitrary and capricious. The U.S. Fish and Wildlife Service updated its species status assessment to address the judge’s concerns in its 2023 decision.

Andrea Zaccardi, carnivore conservation legal director at the Center for Biological Diversity, said she was surprised by Montana’s intent to sue, though she said she shouldn’t have been. The Center for Biological Diversity successfully sued over the 2020 decision.

“It demonstrates how Montana can not be trusted to protect imperiled wildlife,” Zaccardi said in an email to Mountain Journal. “They’ve taken every chance they can to show that they can’t be trusted. They don’t want these species to be protected.”

Zaccardi and Matt Bishop, staff attorney at the Western Environmental Law Center which also sued over the 2020 decision, both said they believe the U.S. Fish and Wildlife Service didn’t go far enough in protecting wolverines through their rule on restrictions. For example, Bishop said that the Fish and Wildlife Service should ban all trapping in wolverine habitat because the scavenger species is at risk of accidentally getting trapped.

Bishop said that Montana is playing politics by filing the intent to sue.

“This is a scientific decision, not a political one,” Bishop said. “[Politics] aren’t really relevant to the listing decision. The state should spend the time and money on conserving the species and not litigation.”