Laura Lundquist

(Missoula Current) Appellate justices are mulling over two cases that could determine whether or which gray wolves are protected in the lower 48 states.

On Tuesday morning, justices from the 9th Circuit Court of Appeals heard three appeals related to wolves and decisions the U.S. Fish and Wildlife Services has made regarding whether or how Endangered Species Act protections should apply to certain populations. The three justices - Carlos Bea, Daniel Bress and Richard Tallman - traveled to the Missoula federal courthouse for the week to allow citizens within the 9th Circuit to observe the appeals process firsthand.

The Fish and Wildlife Service and intervenors had appealed two cases that deal with gray wolves after federal district judges in California and Montana ruled against the agency. During Tuesday’s arguments, both cases had the justices struggling with, among other things, two main questions: When or how is a species considered “recovered;” and what qualifies as a species’ “range?” The language of the Endangered Species Act isn’t clear, but Margaret Robinson, Humane World for Animals attorney, said the Fish and Wildlife Service tends to define those words in ways that don’t uphold the Act’s intent.

“Over the past two decades, courts have reversed the Service’s unlawful listing decisions related to wolves, and again and again, the Service has failed to address the common legal flaw, mainly that recovery progress in a core area, like the Northern Rockies, does not allow the Service to abandon recovery in other biologically important areas,” Robinson said.

The first case involved the Fish and Wildlife Service’s decision in October 2020 to remove the gray wolf from the Endangered Species list in the lower 48 states. The Trump administration initially proposed the delisting in 2019 and was met with opposition from 1.8 million commenters and 86 members of Congress. Wolf advocates argued that protections shouldn’t be eliminated because wolves are still functionally extinct in much of their former range.

In January 2021, six wildlife groups, including Defenders of Wildlife and Center for Biological Diversity, sued the Fish and Wildlife Service, arguing that wolves that were starting to colonize new habitat in places like California would be harmed before new populations could take hold. In February 2022, a California federal judge ruled in their favor, putting all wolves except those in the Northern Rocky Mountains back on the Endangered Species list. The Northern Rocky Mountain population in Montana, Idaho and Wyoming was delisted by Congress in 2011.

The ruling was appealed in April 2022, but the case is only now being heard. That time lag made some of the arguments out-of-date because the court can consider only those details that were submitted for the case.

Emily Polachek, attorney for the Fish and Wildlife Service, argued that thousands of wolves inhabit the Great Lakes states and more live in the Northern Rocky Mountains, so wolves no longer meet the definition of threatened or endangered. Any wolves elsewhere were just lone dispersers and “there will always be lone dispersers.”

“The district court failed to recognize that recovery under the ESA is measured at the species level, not at the level of individual members. And second, a species need not be recovered throughout their entire historical range in order to no longer meet the definition of a threatened or endangered species,” Polachek said.

The justices asked many questions throughout the arguments. Bress asked about the Fish and Wildlife Service’s definitions because groups have successfully challenged the Service in the past on its loose definition of “significant portion of their range.” Polachek said the agency used the dictionary definition of “significant “as it equates to “meaningful.”

Earthjustice attorney Kristen Boyles argued that wolves weren’t recovered if they were limited to just two regions when they used to inhabit a majority of states. Wolves moving into new habitats aren’t just “lone dispersers” or outliers, Boyles said - they are the seeds of new mega-populations that could live on suitable federal land across the nation. For example, a pack of seven wolves in Washington state has grown to 270 by 2025, helped by the ESA protections. This shows that wolves can expand to inhabit “a significant portion of their range.”

Tallman peppered Boyles with questions, asking how far wolves had to colonize and how many were needed before the species could be delisted. He asked if the judges should be able to substitute their judgment or the judgment of other scientists on the question of “range” instead of using the agency’s justification. Boyle said the Fish and Wildlife Service should have created a standard for how much range is “significant.”

“It is a legal question of whether (the Fish and Wildlife Service) have a standard that they can possibly be judged to meet. Right now, they’ve come up with an infinitely malleable standard that says ‘Under any reasonable definition of significance, we find this to be significant,’” Boyle said.

After hearing why grey wolves shouldn’t be delisted, the justices heard a case that argued that wolves specifically in western states shouldn’t be delisted.

In 2024, the Fish and Wildlife Service ruled that wolves in other parts of the West have dispersed from the Northern Rocky Mountain population, therefore all wolves in the West made up a Western Distinct Population Segment. Then, the agency decided the population segment didn’t need ESA protection, saying there was no chance of wolves going extinct due to the Northern Rocky Mountain population. The agency said the states had regulatory safeguards that would prevent extinction.

Wildlife groups sued again, citing regulatory changes made in Montana and Idaho since 2020 that are reducing wolf populations in the Northern Rocky Mountains. The Endangered Species Act requires the Fish and Wildlife Service to consider whether a species could be harmed by “the inadequacy of existing regulatory mechanisms.” In August 2025, Missoula federal district judge Donald Molloy took the agency to task for its definition of “range,” which ignores Colorado and the West Coast, and its failure to use the best-available science, and ordered the agency to redo its analysis. The Fish and Wildlife Service appealed.

If the Fish and Wildlife Service had to consider recovery over the wolf’s historic range, it would have to include areas in Colorado and the West Coast where populations are not big enough to survive without protection. But Polachek, arguing again for the Fish and Wildlife Service, said the Service considers “range” to be the current, as opposed to the historic, range of a species and that’s backed up by a 2018 case, Center for Biological Diversity v. Zinke.

However, Bress said another 2001 case, Defenders of Wildlife v. Norton, could counter that.

Polachek said the Service looks only at the species status and not the geographic extent of the species. So the agency chooses to focus on where the species is, and the agency says in the Northern Rocky Mountains, the species is secure.

“The plaintiffs would like the Service to look at the entire historical range of the wolf  - basically the entire lower 48 - and locate any suitable unoccupied habitat and then do some analysis of whether that constitutes a significant portion of the range. The problem is, if the species isn’t there, how does the Service analyze the status of the species in a place it doesn’t exist?” Polachek said.

Robinson, arguing for the wildlife groups, echoed Boyles, saying the Fish and Wildlife Service needs to define what “range” is, and it shouldn’t be allowed to exclude areas from their range analysis just because wolves aren’t there yet.

“The Zinke court said the agency can assess the status of a species in its current range and its historical range,” Robinson said. “If the species has not returned to a portion (of its range), it’s still in danger in that portion. That danger is caused by threats… that impede the ability to return to the region. The analysis needs to be at the species level. What the Service is trying to suggest is the analysis should be wolf by wolf. But the question is not whether individual wolves in Colorado are in danger, but whether the wolf is in danger because the larger metapopulation is being prevented from returning to Colorado.”

The justices were perplexed by two pairs of rulings. One pair was the Zinke and Norton rulings, which appear to be at odds when it comes to the interpretation of “range.” The other two were Supreme Court rulings: one that requires the courts to give some deference to the expertise of federal agencies and a more recent one that allows judges to exercise their own judgment when it comes to legal interpretations.

Matthew Bishop, attorney for Western Watersheds Project, addressed the quandary of deference before he presented the scientific arguments that countered the Service’s claims that wolves in the West weren’t likely to go extinct in the future, given current conditions and regulations that are already causing wolf numbers to decline in Montana and Idaho. The courts are required to give the most deference when it comes to scientific matters.

“The agency has to earn deference. The agency has to make a reasoned and valid scientific determination. They can’t cherry pick from the science; they can’t selectively cite or use it or misrepresent it. Nor can they disregard or ignore it. The court’s review must be searching and careful,” Bishop said. “Deference is sometimes warranted but sometimes not.”

After four hours, which included hearing a case related to ESA protections of the Mexican wolf, the justices adjourned. Rulings will be forthcoming.

Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.