The Gray Wolf Under the Endangered Species Act (ESA): A Case Study in Listing and Delisting Challenges
January 29, 2020
Under the Endangered Species Act of 1973 (ESA or the Act; 16 U.S.C. §§ 1531-1544), the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (together, the Services) determine which species to “list” as “endangered species” or “threatened species,” terms defined in the Act. Species, subspecies, and distinct population segments (DPSs) may all be listed as “species” under the Act. Listing a species invokes certain protections under the Act and a requirement that the Services develop a recovery plan to conserve the species. Listed species may be reclassified by the Services from threatened to endangered or vice versa. The Services may also remove a species from the list, often called delisting, if it no longer meets the definition of an endangered or threatened species. The Services list, reclassify, and delist species pursuant to statutory criteria and definitions through the agency rulemaking process. Persons may—and often do—challenge the legality of those final rules through litigation. When such challenges succeed, the court remands the rule to the applicable Service for further proceedings and may vacate the challenged rule.