Wolverine Talk in Island Park, Idaho

For anyone in the Yellowstone ecosystem, I’ll be giving a talk next Wednesday, August 3rd, at the Nature Conservancy’s Flat Ranch in Island Park, Idaho. The talk starts at 7 pm and will cover basic wolverine ecology, with a focus on wolverines in the GYE and the US Rockies, and a bit about wolverines in Mongolia. There will be a Q&A session, so bring your burning questions about wolverines.

You can get directions to the Flat Ranch here.

Hope to see you there!

Wolverine Killed in Utah

Two weeks ago, a female wolverine was killed in Utah. The animal was hit by a car near Bear Lake, at the far northern edge of the, close to the Idaho and Wyoming border. This was most likely a naturally-dispersing and young wolverine, and it’s especially sad because a female wolverine in an area without a verified reproductive population could be particularly valuable in establishing a new population node.

There’s not much more to the story beyond the bare facts – hopefully at some point we’ll learn more about her genetics and about whether or not she’s ever given birth. In the meantime, I was prompted to consider the history of the discussion about whether there are wolverines in Utah or not. In 2014, a wolverine was caught on camera in the Uintas, and the year before that, an aerial survey spotted tracks. Reproduction has not been documented in the state in recent decades, however, and the animal seen in 2014 could have come directly from Wyoming, as a wolverine was captured on camera in southern Wyoming shortly before the Uinta photos were taken. Intriguingly, there were also track sightings and reports in Wyoming, not far from Bear Lake in wolverine terms, several weeks before this female was killed.

Does this mean that Utah doesn’t have its own population of wolverines? It’s difficult to say. In the seven years that people have been reporting sightings on this blog, I’ve received 13 reports of wolverines in Utah, including one, several years ago, at Bear Lake. A number of these reports sounded credible, some less so. Only one included photos, and the photos were not conclusive.

As the wolverine’s profile continues to increase, we see more and more reports coming in, and more reports that intersect with verified documentation of a wolverine in a particular area. This suggests that if wolverines are present in a region, they may be more visible than we previously thought – less “elusive” (a word that I’m guilty of overusing) and more “sparse.” I’m finding it harder to credit the idea that hidden populations of wolverines are hanging out in pockets of the US Rockies – M56 was spotted and photographed repeatedly when he was running the length and breadth of Colorado, for example. And with the advent of smartphones and go-pro cameras and other devices that exist to document every second of a human’s life, even in the backcountry, it seems like a robust population of wolverines in an area with heavy human recreation would be documented in some confirmed way before too long. My instinct is that wolverines are still not widely established in Utah, but that animals periodically do pass through and may even stick in particular ranges for a while – and that some of the reports I’ve received from people in Utah are probably legitimate. So those of you who live in wolverine habitat, especially habitat that we consider currently unoccupied: keep your eyes open, your smartphones and other recording devices handy, and your sighting reports coming. Thanks to everyone who has submitted a report to date, and let’s hope that the next female wolverine in Utah is sighted alive and well, and preferably with kits.

How Not to Write a Wolverine Article for the Popular Press

As most readers know, there was an uproar following the death of M56 in North Dakota last month. A new article appeared on the Huffington Post on Monday, using the M56 incident as a jumping off point to talk about the urgent need to list wolverines. The article constructed a chain of argument that was factually inaccurate and flawed in its reasoning, with errors in nearly every paragraph, and an overall picture of the wolverine listing debate that sets us back by years, if not decades. This piece manages to encapsulate all of the  stupid things that advocates do when they push science into the narrow confines of their pre-existing agendas. It’s a perfect case study in how not to write about wolverines.

In summary, the author, Cristina Eisenberg, says that wolverines must be listed, and that the federal government inexplicably ignored documentation of a “plummeting” wolverine population when they decided not to list in 2014. I’m not going to nitpick over the numerous small inaccuracies peppered throughout the piece. Instead I want to bring attention to Eisenberg’s uninformed assertions about wolverine population trends, show how a biased and obviously cursory reading of the science can lead to the wrong conclusions, and make a suggestion about how this has negative repercussions for wolverine conservation down the line.

Recently, the states of Wyoming, Idaho, and Montana used unfounded contentions about wolverine population trends to drive a narrative of “wolverines are doing fine,” which helped undermine the listing process in the latest round of ESA discussions. The states built their case on a paper by Aubry et al. on historic wolverine distribution and habitat associations. I discussed this paper when I summarized the February 2016 court hearing in Missoula, because it was heavily debated there. Let me recap: Aubry et al. 2007 is absolutely not a paper about current wolverine population trends. It’s a paper about historic distribution that tallies and ranks the reliability of different sorts of historic reports of wolverine sightings, posits a range retraction and possible extirpation of wolverines from the Rockies in the early to mid 20th century, and then suggests that they’ve recolonized large parts (but not all) of their former range (the extirpation-and-recolonization idea is reinforced by genetic analysis, described in a paper published in 2013). This speculated recolonization was the basis on which the states rested their case that the wolverine population is growing and healthy. This is also, notoriously, the paper that threw University of Michigan fans into depression by suggesting that the Wolverine State – and in fact all of the upper Midwest – had been largely devoid of resident wolverines since the mid-1800s. (“Our results and all published accounts by early naturalists indicate that wolverines were rarely, if ever, encountered in the upper Midwest….Historical records are sparse and haphazard in that area, and the habitat conditions that are associated with wolverine records in the western United States are generally lacking.”) The paper’s major argument is about habitat associations, but let’s leave it here for the purposes of this piece.

Here’s Eisenberg’s assessment of the situation:

In 1994 and 2000, the US Fish and Wildlife Service (USFWS) considered Endangered Species Act (ESA) protection for the wolverine. However, each time it found listing unwarranted due to lack of data about this species’ historic range. To address this lack, ecologist Keith Aubry analyzed wolverine trapping and observation records and found that from 1801 to 1960, the species had occurred throughout the Intermountain West and Upper Midwest. Between 1961 and 1994, people continued to report it in the northern Rockies and Cascade Mountains. Then from 1995 to 2005, these reports declined. Nevertheless, in 2008 USFWS deemed listing unwarranted on a technicality (none of these wolverines constituted a distinct population, as defined by the ESA). Environmental groups sued and won…

By 2010, wolverine trapping had been prohibited in the US, except for Alaska and Montana. In October 2012, environmental groups litigated the ecological soundness of lethal wolverine trapping in Montana and prevailed. Meanwhile, wolverine numbers continued to plummet….

I’m pretty sure that Aubry et al. 2007 now officially qualifies as the most misunderstood scientific paper in the wolverine debate. No sooner have the states finished using this paper to contend that the wolverine population is growing, then someone appears using the paper to suggest that the wolverine population is declining. Eisenberg claims that Aubry et al. state that wolverines were resident in the upper Midwest through the 1960’s, and then says that a decline in reported sightings in the Rockies and Cascades between 1995 and 2005 is evidence for the wolverine population crashing. What Aubry et al. actually say is that wolverines may have been present in the 1800s in the Great Lakes states, but we aren’t sure. They also say that there were a number of reports from the eastern Cascades in the 1960’s-1970’s, and that these reports ceased in the 1995-2005 era. They posit that those 1960’s-1970’s reports reflect “extreme dispersal events that did not represent self-sustaining populations,” ie wolverines that were not reproductive resident adults and that were part of the inevitable source-sink dynamics of a meta-population.

Aubry does not report declines in sightings from the northern Rockies. Between 1961 and 1994, a period of 33 years, there were 326 sightings in total in Montana, Idaho, and Wyoming. Between 1995 and 2005, a period of ten years, there were 215. Even without taking into account the biases and problems with using sightings data as a proxy for population trend, and the ways in which sightings are bound to fluctuate from year to year, there is no decline in sightings, since the periods measured are not comparable (three+ decades vs. one decade) – and I’m willing to bet that if the sightings of the last 11 years were tallied, we’d see an impressive overall increase.

As for the assertion that “the wolverine population continued to plummet” in the US Rockies following the suspension of trapping in Montana, there is no evidence of this anywhere in the literature. It’s hard to see where Eisenberg could be using even Aubry as a justification for this statement, since that paper was published in 2007 and wolverine trapping in Montana was suspended in 2012. Far be it from me to suggest that a self-professed scientist is inventing claims to serve her narrative – but I’d like to see the data on which she’s basing this. In short, Eisenberg misrepresents Aubry and the data to drive a narrative of crisis that is just as counter-productive as the narrative of complacency constructed by the states.

Why is it just as problematic as the states’ misrepresentation of these data? It’s a deliberate attempt to skew the facts to fit an agenda. In the states’ case, it was an agenda to keep wolverines off the list. In Eisenberg’s case, it’s an agenda to list wolverines. Neither the Wolverine Foundation nor I share this agenda a priori, but we do have an interest in accurate representation of the science, and the application of that science to policy and management. The existing science says that wolverines are threatened by climate change, and I believe that this science justifies a ‘threatened’ listing status. But starting with the science and arriving at a conclusion that listing is justified, and starting with a position that listing is necessary and then cherry-picking the science – or inventing incoherent fantasies that you pass off as legitimate interpretation of the science – are two entirely different things.

From the start of the wolverine listing debate (and, for that matter, the entire climate change discussion), we’ve struggled to stand our ground on the idea that near-future threats should be taken seriously, and that a species can be threatened even if we haven’t observed a population decline. Humans are notoriously bad at thinking about the future. We’re bad at anticipating even problems directly related to our personal well-being. Getting people to anticipate problems that affect that well-being of non-humans is an order of magnitude more difficult – but we’ve persevered. We’ve kept this debate alive. We’ve made a case for thinking about the future. It’s a case not just for wolverines, but for all climate sensitive wildlife. We’re entering an era when we won’t be able to show definitively that all populations of concern are currently declining. We’re entering an era when having an edge of a few decades before the decline starts is going to be critical.

Lack of documented decline is one of the big points that opponents of wolverine listing make, over and over again. Polar bears were listed, they say, because we could show that polar bears were dying. They assert that we don’t need to bother with wolverines because we can’t show a similar population decline, and therefore the population is fine. For years, both scientists and advocates have attempted to explain that this listing discussion isn’t about current and documented decline, but about climate effects in the near future. By inventing a population decline and using it to propel arguments for listing, Eisenberg reinforces the idea that we need to demonstrate a population crisis before we list. This is old-school thinking. It’s disheartening to see someone from an older generation of wildlife conservation come along and, from a pretty big national platform, air the same old narrative demanding a demonstrated population decline to warrant protection. Documented population declines should still be a reason to list, of course, but we need to expand our understanding of threat to include problems that we know are coming.

With the population decline fiction, Eisenberg also gets the policy story wrong. The USFWS did ignore good science in their 2014 decision, but they didn’t inexplicably disregard a wolverine population in documented decline. They ignored the science showing impending threat. She touches on this, but with the imaginary population crash in the first few paragraphs, and her statement that the 2010 warranted-but-precluded decision was due to the “plummeting” population (in reality, it was projected climate threats), she implies that this allegedly discounted piece of alleged science is the thing about which we should be outraged. It’s not, and in fact this never happened. There is plenty to think about when we contemplate the wolverine policy situation, and plenty of red flags about how that process went forward. By tossing this invention out to the wider world, Eisenberg distracts from the real story, which is about special interest interference, climate change literacy, and looming issues with how the ESA can be applied.

I’m not particularly familiar with the rest of Eisenberg’s work, but from what I can tell, she worked with wolves and puts herself forth as an advocate for and authority on carnivores. From skimming headlines and the summary of her book, she seems to favor of a “carnivores can fix ecosystems” narrative that focuses on trophic cascades as proof of the value of carnivores, and “carnivore corridors” as a way of connecting the landscape. Fine, but again, all of this is sort of old school and, at least in the case of trophic cascades, overly simplistic. In view of this approach, though, it makes sense that she would latch onto wolverines and try to bring them into her narrative – which presupposes that listing must happen, that it happens because of population declines (as it did with wolves and bears), that corridors are a panacea (regardless of the biology of the species in question – I’ll touch on this in a second post), and that crisis stories with a clear opponent (in this case, the feds who ignored the purported population decline) successfully rile people up and make them into better advocates.

The problem is, wolverines are not wolves or bears. The history, ecology, and biology of the species, the state of the science, and the social and political issues around wolverines are particular to wolverines. Of course carnivore conservation, as an overarching concept, can be discussed, but it’s important for advocates to know that each species has individual requirements, ecology, and socio-political context. It’s important to start with what we know, and decide the best course of action from there, rather than starting with an assumption about what should be done, and cherrypicking the science – or just making things up – to justify your position. It’s important for advocates to get the science and facts right, because when you start with a false claim, it’s easily disproved, and you and your cause end up looking lame.

Yes, the real story is complicated – but not so nuanced that it can’t be told accurately, even in a popular-press piece. And yes, there’s urgency to building wildlife constituencies – but that doesn’t justify spreading misinterpretations of the science in the national press.

When people come to the wolverine constituency, I want them to be informed, well-educated, and capable of understanding the science. I don’t want them to be automaton minions for a particular policy agenda. A decision to list, and any advocacy for listing, must stem from a thorough understanding of the science and the management options. We live in a complex world with multiple and intersecting complex systems (ecological, social, political, etc), and living in that world requires complex thinking, not simplistic – let alone false – narratives. Let’s dispense with the idea that the only thing that justifies listing is observed population decline. In the era of climate change, staying a few steps ahead of those declines is critical to conservation. And let’s all show how much we appreciate Keith Aubry’s wolverine work by making an attempt to use his science accurately from now on.

Full Disclosure and Meta-Commentary

Several years ago Cristina Eisenberg friended me on facebook. I’ve never met her but I accepted her request. For years, she’s posted her articles with an exhortation to “like and share widely.” I’ve never read the articles or interacted with these posts, although I did once point out that a lecture program that she’d linked used the title of someone else’s work and that she might want to check with that person to make sure it was okay. I also once submitted a piece to The Whitefish Review, where she’s an editor, and it was declined for publication – which was the right decision, as it wasn’t a great piece for that journal.

On Monday, Eisenberg linked to her article with the usual command to “like and share widely.” I read the piece and commented about the population trend inaccuracy on her facebook page. I identified myself as ED of the Wolverine Foundation, thanked her for bringing attention to the species, mentioned the lack of documentation of population decline, and offered to chat with her if she had any questions about wolverine research. Within minutes, the post was deleted. I was pretty taken aback by this, so I asked if my post had been deleted. She then defriended me.

For about an hour after this happened, I felt like I’d been coated in slime. I didn’t seek this woman out; she imposed herself on me, evidently with an expectation that I would be her uncritical cheerleader. In years of being her facebook friend, she’s never liked or commented on my posts. She obviously sought out people in the wildlife community to serve as amplifiers and advertisers for her work, and, given the censorship, doesn’t like it when someone demonstrates that they actually want to engage and discuss what she’s written in anything less than enthusiastically positive terms.

One of the purposes of this blog, from its inception, has been tracking press coverage of wolverines and critiquing the ways in which popular press authors report on and build narratives around wolverine research and conservation issues. Even if this facebook incident hadn’t happened, I would have critiqued this piece, simply because it provides such a fine illustration of where advocates go off the rails and become anti-scientific to push an agenda or indulge their preconceived narratives. But my commentary would probably be less extensive if I didn’t have this indication that Eisenberg knows what she’s doing. I find censorship and knowing dissemination of misinformation pretty disturbing.

On a basic level, stuff like this exasperates me because as someone who frequently lectures about wolverines, I end up having to deal with the fallout of inaccurate stories. I’m going to keep a running tally of the number of people who now ask me why the USFWS ignored the population decline, just to see how far this story spreads. Maybe it won’t be an issue. But maybe every question session will henceforth require a response about how this article is bad science writing. It’ll be interesting to see.

At a broader level, the interaction with Eisenberg crystallized something that I’ve been concerned about for the past year or so. I see more and more individuals and groups that ostensibly share my values – which are liberal, egalitarian, environmental, and oriented towards protecting common goods like public land and wildlife – willing to resort to manipulation of facts and data to get what they want. Frequently this involves a heavy component of narcissistic self-promotion or profit, and often it involves insulting “out groups,” entrenching conflicts, and rallying allies around a sense of crisis, persecution, or fear. Skewed clickbait headlines from groups that I used to support, attached to articles that misrepresent science or statistics about some social or political issue, are one very basic example. These are tactics I once scornfully associated only with Fox News and right-wing propagandists. How is this becoming common and uncontested behavior among people who once stood for a reality-based existence? I don’t know if this is an unavoidable consequence of the way we use media, or whether there’s still a point in making a plea for critical and scientific literacy. Regardless, I’m going to make that plea now, and again and again into the future: in the Age of Opinion, inform your opinion with facts and research. Embrace complexity. Consider systems. Engage in conversation. Suspend the need to judge. Indulge the impulse to think.

 

 

 

 

 

 

 

 

 

 

The End of a Journey: Colorado Wolverine Killed in North Dakota

A couple of weeks ago, a wolverine was killed in North Dakota by a ranch hand who came across it, surrounded by cattle. He believed that the animal was a threat to his calves, even though he wasn’t sure what it was, and shot it. The North Dakota Department of Game and Fish confirmed the ID and took possession of the body for a necropsy and DNA testing. Articles about the incident, and the animal’s possible origins, have popped up over the past week, and I was in the process of writing a post about this incident, and how interested I was in the results of the DNA testing and the origins of this wolverine, when NDG&F released an update containing surprising news: the wolverine was carrying a radio transmitter. That transmitter belonged to an animal instrumented in Wyoming in 2008, and whose “last known location was Colorado in 2012.”

This leaves little doubt that the animal was M56, the wolverine who gained fame in 2009 when he traveled 500 miles from northern Wyoming to Colorado. He became the first verified wolverine in Colorado in 90 years. Colorado Parks and Wildlife tracked him until his instruments died, as he traveled up and down the length of the Colorado Rockies. He was spotted and photographed by hikers on several occasions, and prompted widespread interest in the idea of reintroducing wolverines to Colorado. I cannot enumerate the emails I’ve gotten from elementary school classes across the country wanting to know more about M56, where he is now, and what he’s doing. In fact, I answered such an email this morning, to a third grade class in Ohio, sending along cheerful speculations about how he was probably still alive and wandering around the Rockies. He was a genuinely famous wolverine, people were inspired by his story, and I’m caught between astonishment that he had gone all the way to North Dakota – North Dakota! – and sadness at his end.

I tracked this guy shortly after he was caught and instrumented, off Togwotee Pass in Wyoming, in early 2009. Once I took my sister, who was in town for a visit, and once I went by myself. I didn’t find his tracks, and the days were still too short for extensive trips, but I could hear him on the telemetry receiver, the slow, steady, tick….tick of the transmitter both soothing and exhilarating in the snowbound forest. I had no idea what he would go on to do, but I loved him even then simply for being out there, for his presence on the landscape, which, even before his tremendous journeys, seemed huge.

We lost track of him for a while, and then he was picked up traveling south down the spine of the Wind River Range in central Wyoming. We thought he’d stick there, but then he disappeared again. At that point, we began speculating – what if he kept going south, to Colorado? The speculation was half-joking, half hopeful. It picked up steam and tipped towards hopeful when he was spotted outside of Laramie by a rancher who saw him and called Game and Fish to report it. A flight ID-ed him. I remember thinking that I sort of loved that rancher, too, for calling the animal in, for being an ally of science and understanding and coexistence. His decision kept the story alive.

M56 crossed into Colorado in May of 2009. His journey coincided with the start of my work in Mongolia, and those two events catalyzed the founding of this blog. He made it clear that these animals had stories unlike the stories of other animals, at a scale that corresponded to my own interests. M56 made me realize that there was something to write about here, a compelling narrative, and his was the first story that I told.

I have an aversion to letting my emotions get the better of me, but it’s hard not to admit to grief over M56’s end. It’s extraordinary that he went from Wyoming to Colorado to (probably, since he was so close to the border) Montana to North Dakota – and who knows where else in between? Unknown animals die unmourned all the time, so it shouldn’t matter. But storied wolverines…they are rare, and they hint to us of all the wild and unseen and amazing lives that go on beyond our awareness. That’s something worth thinking about. So take a moment to remember M56, to consider his life, and those unknown lives, and what it means to have them out there. It means more than I can express, probably more than any of us can express – but let us keep trying.

 

 

 

Wolverine Decision Ruled “Arbitrary and Capricious”

Judge Dana Christensen issued a ruling today finding the USFWS 2014 decision to withdraw the proposed wolverine listing rule “arbitrary and capricious.” His ruling vacates the decision and remands it to the USFWS. This means that the decision not to list is overturned, and the federal government must reconsider the science and issue a new decision. The court ruling does not require the USFWS to grant wolverines protected status under the Endangered Species Act, but it does find that the USFWS discounted the best available science and applied unnecessarily stringent standards of scientific certainty and precision in reaching the decision not to list.

I’ll get into some analysis in a future post. This decision came out fast, months ahead of what I anticipated, and so I haven’t even had a chance to publish the posts I was working on about the original scientific arguments for and against listing – so I have some catching up to do. In the meantime, the gist of the 85-page decision is summarized in Judge Christensen’s conclusion, for which I think he deserves a heartfelt thanks from future generations of wildlife enthusiasts who might value the opportunity to see wolverines and other climate-sensitive wildlife in the Rockies:

The Service erred when it determined: (1) that climate change and projected
spring snow cover would not impact the wolverine at the reproductive denning
scale in the foreseeable future, and (2) that small population size and low genetic
diversity do not pose an independent threat to wolverine viability in the United
States. By incorporating these determinations into the Withdrawal, the Service’s
decision against listing the wolverine as threatened under the ESA is arbitrary and
capricious. No greater level of certainty is needed to see the writing on the wall
for this snow-dependent species standing squarely in the path of global climate
change. It has taken us twenty years to get to this point. It is the undersigned’s
view that if there is one thing required of the Service under the ESA, it is to take
action at the earliest possible, defensible point in time to protect against the loss of
biodiversity within our reach as a nation. For the wolverine, that time is now.

The document is worth reading in its entirety, so I’m posting it here in .pdf format: Wolverine Ruling 2016.

The decision is detailed, but very readable, and contains a number of statements that made me exclaim out loud and sit up straighter – if you want a concise but thorough understanding of what was going on over the course of the writing of the proposed rule, the evaluation of the science, and the reversal, this is good reading. And those 85 pages are double spaced, so it goes pretty quickly. Enjoy!

The Argument Against Listing, As Summarized by the States

Last week, I posted about the court hearing on whether the USFWS decision not to list wolverines was “arbitrary and capricious.” During that hearing, the lawyers for the USFWS and the defendant-intervenors referenced a number of arguments against listing. Many of these arguments were heavily promoted by the states opposed to listing (per a USFWS email cited during the hearing, these arguments ‘originated’ with Idaho, Wyoming, and Montana). I referenced these arguments piecemeal as I summarized the hearing, but they were presented in a more structured way in the comments of various entities – including the states – on the proposed rule for listing. They were then succinctly and coherently summarized in September 2014 when the states published a letter, in various news outlets, in response to the decision not to list.

Before I delve into further analysis of the science and the conflicting narratives about what the research says, I’m going to post the letter so that readers can assess the structure and merits of the state’s contentions on their own. I’ll be discussing both the scientific details of these arguments, and the overall arc of the different narratives about wolverine conservation, in following posts. There are a number of other documents relevant to this set of arguments, but as the letter is the most concise, I’m going to use it as a point from which to elaborate and bring in additional details. Feel free to share your thoughts and impressions before I start with my own analysis.

Here’s the letter:

Wolverine fares well

The states of Montana, Idaho and Wyoming have noted the recent criticisms about the U.S. Fish and Wildlife Service’s Aug. 12 decision to not list wolverine in the western United States as threatened under the Endangered Species Act. For the record, our states opposed the service’s original recommendation to list wolverines based on our concerns about listing a species that is at its highest population level in the past 80-100 years and still increasing. This fact supports the conclusion that state management works for the wolverine. The states also expressed our concerns over the uncertainty inherent in using projected changes in climate over the next 40-80 years to speculate about what might happen to wolverine habitat and wolverine populations.

The service, however, didn’t reverse its original proposal due solely to state input. The service chose, instead, to convene an independent panel of climate and wildlife scientists to review and discuss the science underlying the original listing proposal. Endangered Species Act listing is a complex arena that requires decisions based on imperfect data, and we applaud the service’s efforts to seek independent advice. It’s likely the model used for wolverines — a model based on cooperation with the states — will have utility for future decisions. Ultimately, the service made the right decision for wolverines for the right reasons. We thank the service for its willingness to listen, keep an open mind and utilize additional methods to fully explore science in its decision process.

Together we remain fully committed to the conservation of wolverines.

Virgil Moore
Director
Idaho Department of Fish and Game
M. Jeff Hagener
Director
Montana Fish, Wildlife & Parks
Scott Talbott
Director
Wyoming Game and Fish Department

 

 

 

Science Goes to Court

On February 9th, the US district court in Missoula, Montana heard oral arguments in the case challenging the 2014 USFWS decision not to list wolverines. The Missoulian published an article about the hearing, and it’s a pretty good outline, but since I was in the courtroom, I’m sharing my impressions and a more detailed synopsis as well. I’ll focus here on conveying what happened, and will share my own analysis later. I do have  opinions about the debate around the science, and those will probably come through, but I will explain my reasoning and, I hope, convince readers as to why that reasoning is sound, in a subsequent post.

First, a bit of background: Back in August of 2014, the USFWS abruptly reversed course following a 2013 proposed listing rule (Proposed Wolverine Rule), and issued a decision not to list the wolverine as threatened under the ESA. A leaked memo (Region_6_Wolverine_Memo_5-30-14) revealed that the reversal seemed to be the result of the opinion of the assistant regional director of region six, in contradiction of a process of several years that found that wolverines were warranted for protection and should be listed. Environmental advocacy groups sued, charging that the decision was “arbitrary and capricious,” and contending that the decision should be thrown out. The defendants included the USFWS, and a number of parties referred to as “defendant-intervenors.” In this case, these parties included the states of Idaho, Wyoming, and Montana; Montana Fish, Wildlife, and Parks; state farm bureaus; several snowmobile associations; and – perplexingly- the American Petroleum Institute and the Montana Petroleum Institute.

To show that the decision not to list was in fact arbitrary and capricious, the plaintiffs had to prove that the reversal was not based on any sound scientific evidence, but rather on whims or machinations outside the bounds of the “best available science,” the standard tool used to determine whether a species warrants protection.

The notion of best available science is tricky. The ESA did not define it when the Act was written, and a definition added by amendment in 2005 – “…scientific data, regardless of source, that are available to the Secretary at the time of a decision or action for which such data are required by this Act and that the Secretary determines are the most accurate, reliable, and relevant for use in that decision or action.” – provoked ire from people who thought that it opened science to politicization by granting a government official the authority to decide what science counts and what doesn’t. This doesn’t even begin to touch on the larger debate about whether our process is effective for incorporating science into policy at all, or the even vaster debate, within the social sciences, about whether science that strives for neutrality is actually a practice of collective cultural self-delusion. Obviously, figuring out what defines good science is a complex issue.

Regardless, the question of best available science has plagued the latest round of the wolverine listing debate, just as the lack of scientific data plagued earlier rounds. The USFWS’ original proposed rule to list, like all such proposed rules, was subject to peer review. During this process, two out of the five researchers who were invited to submit opinions disagreed with the USFWS’ analysis of the science on the relationship between wolverine denning and late spring snowpack, and the models that projected decline in snowpack in wolverine range within the coming century. This dissent provoked an avalanche of further analysis and debate, which included, among other things, expert panels on climate modeling, rancorous attacks on various scientists and scientific institutions, the construction by the states of some fairly shaky arguments about wolverine population trends, and the sudden appearance on the scene of high-powered energy players with – we can speculate – a distinct interest in preventing the listing of a charismatic climate-sensitive carnivore. Months went by. The expert panel concluded that the climate modeling was sound. The decision looked like it would go forward. Then came the reversal; the leaked memo; a letter from the states commending the decision not to list but reiterating flawed arguments about what the science actually says; and the lawsuit.

The major scientific debates in this case – the points that were contended and argued over in the expert reviews, the letters, the memos, and the public forum – can be summarized as follows:

  1. What is the relationship between wolverines and snow, especially spring snowpack?
  2. What is the wolverine population trend in the US Rockies?
  3. Is genetic depression potentially a problem for wolverines?
  4. Are the climate models used to predict reduction in snowpack in the Rockies adequate, both scientifically, and as a justification to list?

The three papers most at issue in this discussion are Copeland et al 2010, which deals with the relationship between wolverines, late spring snow, and low summer temperatures; McKelvey et al 2011, which deals with projected retractions in wolverine habitat and dispersal corridors over the coming century; and Aubry et al 2007 (aubrywolverinedistribution), which deals with the historic and current range of wolverines. I’ve discussed these papers elsewhere on this blog and will dive back into them in subsequent posts, but for now, if you want to review them, there they are.

And thus we come to Missoula on Tuesday morning, February 9th, at 9:30 am. The courthouse gallery was packed – the lady who signed me in and gave me my visitor tag told me that there were at least 50 people, and opined that there were “a lot of people interested in wolverines.” There were also a lot of attorneys, arrayed around their tables facing the judge’s seat – Tim Preso of Defenders of Wildlife and Matthew Bishop of Wild Earth Guardians for the plaintiffs, and the USFWS attorney and the assortment of lawyers for the defendant-intervenors.

Judge Dana Christensen began the proceedings by recounting, with articulate and detailed enthusiasm, his three encounters with wolverines in the wild, and segued into expressing his familiarity with the case, the briefs, and the wider issues at stake. He discussed the prior listing petitions and their outcomes. He mentioned having read Doug Chadwick’s book about the Glacier Park project, and said that he understood from the book that, “The folks who are committed to gathering the science are dedicated…I’ve concluded that this is a hard species to study, and it’s not surprising that we don’t know how many there are….or the exact data about their response to climate change.” Wolverines are a pretty obscure topic and it would have been easy to end up with a judge who didn’t even know what they were. Judge Christensen was admirably well-informed.

The plaintiffs opened by invoking the concept of best available science, and putting forth the argument that the papers used to justify the original listing rule – namely, Copeland et al. 2010 and McKelvey et al. 2011 – were subjected to criticism and then discounted on the basis of speculation rather than definite scientific evidence that they were flawed or incorrect. These two papers have been at the crux of all of the debates, and most of the criticism lobbed at them has had to do with lack of precision rather than lack of broad accuracy. Preso invoked a 2009 case, Tuscon Herpetological Society vs. Salazar, which determined that the government cannot dismiss threats to a species based on inconclusive science. As he stated again and again, in numerous ways, “The ESA does not demand perfect science – it demands the best available science.”

Preso also spent some time on the USFWS’ assumptions about population growth, and the flawed reasoning of relying on Aubry et al 2007 to justify the idea that the population would continue to grow. He argued that the USFWS and its attendant intervenors were conflating range expansion with population growth, and that there was no evidence that the population is growing. He highlighted the dangers of assuming that increased sightings of wolverines indicates that the wolverine population is increasing, mentioning that it was not surprising to see that wolverine sightings had been substantially higher during the years of a wolverine research study than in the years when the study was not operating.

Connectivity and genetics also received attention. Preso argued that connectivity problems should have been considered a primary rather than a secondary threat, referencing the lack of apparent connectivity between wolverines in the contiguous US and wolverines in Canada. The judge questioned this, and Preso responded with the published information that suggests that the trans-Canada highway and Canada’s trapping management regime do serve as effective barriers to free genetic exchange with wolverines in the US Rockies. From here, he ventured into a discussion about widely-accepted biological rules about the problems with inbreeding and genetic bottlenecking, and suggested that these rules most likely apply to wolverines as well. He was referring specifically to the so-called 50/500 rule, which states that a minimum effective (breeding individuals only) population of 50 individuals is needed to insure population survival over the short term, and 500 are needed over the long term. The current effective population of wolverines in the US Rockies is estimated, based on genetics, to be between 25 and 50.

Preso’s next theme was climate change, and the criticisms made of the Copeland et al 2010 paper. The judge asked several questions as Preso launched into his defense of the paper, the first about whether or not there was any published information to contradict either Copeland or McKelvey (Preso: “No.” Judge Christensen: “So it’s basically just criticism….”) Later, as Preso continued to explore the issues around McKelvey et al. 2011 and the question of the scale of the modelling, and stated that, “We know that wolverines are snow-obligate – ” the judge interrupted and said, “That’s a given in this case, so the question is, do we need to know exactly why?”

There was some discussion about another case that had to do with abrupt changes in decisions, which the judge brought up in order to ask whether Preso wanted to rely on this case for precedent; Preso said no and brought the discussion back to the Tuscon Herpetological case. The judge went on to affirm that this was a case about “change in policy needing to be based on good reasoning and logic.”

Preso also spent some time reiterating that California and Colorado, with single male wolverines in each state, should not count as inhabited range. He brought up the fact that some of the estimates of available habitat included habitat in these states, and that that habitat should be removed from analysis because it was not relevant to the population in the US Rockies or the Cascades.

At the end of Preso’s arguments, the judge asked him what he wanted the court to do, and Preso replied that he wanted the judge to apply the arbitrary-and-capricious standard and set aside the rule, remand the decision, and “wait and see what will happen.”

Matthew Bishop then spoke, and in some senses he seemed to contradict Preso’s arguments about not considering uninhabited range as part of the analysis for listing. He made an argument that the retractions in range during historical time should in fact be taken into account in determining the degree of threat faced by wolverines. This discussion revolved around a specific provision of the ESA, and Bishop was arguing that this should be applied; I haven’t had time to research it, so I’ll leave this here for now. Bishop also mentioned genetic issues, and inadequacy of existing regulatory mechanisms (one of the categories of threat under the ESA). Like Preso, he stated that the best available science in this case had been ignored.

Then came the defendants’ turn to speak. Trent Crable was arguing for the USFWS, and stated that since climate change was ruled the major and only primary threat, the science regarding wolverines and climate change should be the only issue under consideration. The USFWS had found that McKelvey et al was not enough, on its own, to show threat in “the foreseeable future.”

The judge at this point asked whether there was any published research to contradict Copeland or McKelvey, and Crable responded, “If by published, you mean peer-reviewed, then no.” The judge then asked, “What then was Noreen Walsh [the region 6 assistant director] relying on in making her decision?”

Crable replied, “Her understanding of what is needed to list, and the report provided by Dr. Torbit, in consultation with Andrea Ray of NOAA, saying that the modeling was insufficient for us to know what will happen to wolverine habitat.” This was in reference to an internal study on downscaling of climate models that the USFWS requested after the expert review panel found that the the snow modeling in Copeland and McKelvey was adequate. I have not seen this report, but it is referenced in Walsh’s memo, and was the linchpin in justifying the reversal. Crable explained that the report highlighted difficulties in modeling what will happen with precipitation on local scales; he said that modeling temperature changes was comparatively easy, but that precipitation projections were much more difficult, implying that our ability to understand future snowfall is compromised.

The judge produced emails that seemed to suggest that Walsh had made the decision to reverse prior to the submission of the Torbit and Ray report, and asked several questions to try to clarify the timeline. Crable said that Walsh had probably seen earlier drafts and/or talked with Torbit, since they are colleagues. The judge asked whether other scientists within USFWS or beyond were given time to respond. I don’t recall a direct answer to this question, but the implied answer was no, and as the exchange continued, the judge said, “So the same people who were tasked with the listing rule were then tasked with coming up with the exact opposite decision? That must have been distressing, if not demoralizing.” Crable stated that it was not the “exact opposite view, just a different conclusion.”

At this point, Crable steered the discussion back to McKelvey, saying that although McKelvey represents sophisticated science, the question was whether that single paper was enough to list. The USFWS contended that it wasn’t because it doesn’t tell us what will happen to habitat in the future, which is the real issue. He then stated that the burden of proof is on the USFWS to show why a species should be listed, not why it shouldn’t be listed, and said, “This is the law for listing under section 4.”

Despite his contention that other arguments about secondary threats should not be at issue, population trend was a theme with both Crable and the other lawyers at his table. Most of their arguments relied on Aubry 2007, a paper about historic range; they were using this paper to build an argument that wolverines have recovered in the US Rockies following an early-20th-century extirpation. Crable did venture into discussing genetic diversity and the 50/500 rule, stating that this rule was difficult to demonstrate in reality and that “small population sizes don’t necessarily mean that there is a threat,” and – again, drawing presumably on Aubry – “Population size is probably not substantially lower than prior to European colonization.”

I found the breadth of assumption in this statement so astonishing that I was scribbling notes and missed the exact flow of the next few moments of argument, but soon thereafter, the issue of trapping was raised. Montana maintained a trapping season – at first unlimited and then, after 2008, much more carefully managed – until it was shut down by court order several years ago, pending the listing decision. Crable said that “no trapping of wolverines is allowed,” in response to a line of discussion about the potential effects of trapping on the population. The judge said that he understood that the closure was the result of a court order, and Crable confirmed this, but said that the court order was lifted and that trapping had not resumed.

This was the conclusion of Crable’s argument, and he took a seat, while the lawyer from Wyoming, whose name was Peterson, stood up to speak for the states of Wyoming, Idaho, and Montana. He talked about the environmentalists using whatever means necessary in “attempting to achieve their goal, which is listing the wolverine.” He argued an equivalence in uncertainty over population growth and the uncertainty in Copeland and McKelvey, saying that “environmentalists” were applying a double standard by invoking lack of evidence of population growth to justify listing, while ignoring uncertainty in Copeland and McKelvey that suggested that wolverines might not be threatened. He said that it was the responsibility of the USFWS to decide what represented an acceptable level of uncertainty for a particular decision. “At heart,” he said, “This is about a difference of opinion” – again, neatly implying a scientific equivalence between the two sides of the discussion.

Peterson brought up the fact that wolverines had been extirpated and then rebounded over the past century as evidence of population growth, in spite of a continuing trapping season, and then said that “there was no trapping when the decision was made,” reiterating Crable’s implication that trapping was not something to worry about. Here, Judge Christensen interjected, bringing up emails sent by the USFWS about potential reactions by various parties to the reversal of the decision to list. Among these, the section about the reaction of the states proclaimed that they were unlikely to object, since “many of the arguments for the withdrawal of the listing decision originated with the states.” The email also clearly said that Montana intended to reopen the trapping season. The judge questioned the intent of the states. Peterson quickly deferred to the lawyer for Montana, who stood up and stated that “We’d like to keep a limited and carefully controlled trapping season on the table.”

The states took a seat, and the lawyer for the “non-government defendant intervenors,” a coalition representing farm bureaus and snowmobile associations, took his turn at the podium. This was by far the wackiest segment of the hearing, because the lawyer, Blevins, argued that wolverines in the US Rockies should not be considered a listable entity since they are a subspecies with conspecifics in Eurasia, and in order to list them, we would need to do a review of the global population. I’m going to let my bias out to play here and get it over with so I can focus on more relevant discussions in subsequent posts – this argument was ridiculous, but in light of who the lawyer was representing, the absurdity may have an explanation. As I understand it, he was attempting to get into the record a nitpicking dispute over semantic ambiguity in the ESA, which is certainly an object of almost totemic hatred among farm bureaus in the western US. I’m pretty sure I saw people of significant stature rolling their eyes when he stood up. During the rebuttal, Crable disavowed association with Blevins’ line of argument. Enough said.

Next up were the “energy intervenors,” the American Petroleum Institute, and the Montana Petroleum Institute. The lawyer for the Montana Petroleum Institute, D’Angelo, stood up to present the energy industry’s arguments, but before he could begin, the judge interjected to ask, “Please tell me why the American Petroleum Institute and the Montana Petroleum Institute have a dog in this fight?”

D’Angelo responded by citing concerns about restrictions on operating in wolverine habitat if the species is listed, and then quickly went on to state that the USWFS started with a conclusion that wolverines should be listed, and then backfit evidence to that conclusion.

The judge here interjected again to ask, “Where’s the evidence in the record? That’s a serious contention.”

D’Angelo brought up emails from Shawn Sartorius, who wrote the listing decision. In the courtroom, Sartorius was quoted as writing that “wolverines will have a proposed rule,” and D’Angelo argued that this was evidence that the USFWS was biased. Again, I’m going to get this out of the way by contextualizing where the lawyer failed to do so. I don’t know what was going on in Sartorius’ mind when he wrote that, but these emails were sent at a specific moment in the listing debate. In 2010, wolverines were deemed warranted-but-precluded, which meant that a scientific analysis found that there was justified evidence of a threat, but that the USWFS did not currently have the resources to list the species, particularly in light of more immediate and habitat-based threats facing other species. In essence, and perhaps with some defensible logic, the decision said that the resources of the agency should be applied to species who are threatened by something that the ESA is capable of dealing with (in situ habitat-based threats) rather than something that the ESA is not authorized to regulate (carbon emissions). A warranted-but-precluded ruling places a species in limbo, which can last for many years. Shortly after the 2010 wolverine decision, environmental groups sued over undecided ESA cases, including warranted-but-precluded decisions, and won an order that all of these cases had to be decided within a limited time frame. The wolverine was one of the first to go up for consideration. The McKelvey et al 2011 paper that is the object of so much dispute had entered the literature in the interim, but beyond that there was no new peer-reviewed science to consider. Since wolverines had already been found warranted for listing, and McKelvey added substantiation to the idea of threat, Sartorius’ emails at this point are less evidence of a nefarious plot to rig scientific data to fit a pre-ordained, agenda-based conclusion, and more a logical outgrowth of the fact that a very recent review of the science had reached a particular scientific conclusion that suggested that a listing rule would follow.

The judge didn’t get into any of this, he let the matter sit, and D’Angelo went on to assert that, “It’s not reasonable to dispute that the population is increasing….and projected to increase.” He referenced an Inman paper from 2013 and Aubry 2007 to back his claim, but the judge again began to question him, saying that, “Within the [proposed listing] rule, scientists disagree [about population trajectory], I can’t see where everyone agrees that population will increase forever – maybe you weren’t saying that?”

D’Angelo replied, “I wasn’t. I apologize.”

The judge said, “It sounded like you were.”

D’Angelo managed to recontextualize his argument and put some time scale boundaries on his contentions about population growth. He then ventured into a criticism of Copeland and the snow modeling, stating, among other arguments, that the obligate relationship between wolverines and snowpack was “on a denning scale,” and that “Copeland describes where wolverines are, not what they need.” He said that the authors on Copeland et al “drew a line around the wolverine population” and then backfit the snow data. He concluded by saying that the paper was good for predicting where wolverines are found, but not as a premise for the McKelvey paper, which relied on Copeland to model habitat loss.

With this, the defendants concluded, and the rebuttals began.

During the rebuttal, Preso talked about modeling and uncertainty, saying that McKelvey was not a stand-alone, that the expert panel convened by the USFWS agreed with him, and then said that the USFWS had in the past relied on the same kind of modeling to conclude that pikas were not warranted for listing – that decision stands. Preso stated, regarding the contention that Copeland shows where wolverines live but not what they require, that it was unreasonable to assume that wolverines were living in places that didn’t provide what they needed. He again talked about uncertainty in population trend, citing a number of studies including Inman 2013 to highlight the lack of any kind of evidence about current demographics. He reiterated the lack of connectivity with Canada, and said that the 50/500 rule was “basic biology” and that it should apply to wolverines. The judge briefly questioned him about the uncertainty in modelling precipitation versus the relative ease of modeling temperature. Bishop then spoke again, briefly, about the fact that trapping was “still on the table” by the admission of the lawyer for Montana. The judge sought some clarification about the concerns over trapping, saying that he understood that incidental take was a possible source of mortality on top of the prospect of a managed season, and Bishop confirmed this.

Crable then gave his rebuttal, drawing again on Aubry to contend that the population is increasing and will continue to do so. He said that decline in snowpack doesn’t mean that wolverines are threatened, nor does inbreeding or genetic depression, and that there was not enough evidence of any of it to warrant listing, He again came back to population growth, saying that “estimates have gone up in published literature,” that there was no evidence that the population was declining, and that – again – there were no grounds to list.

He then ventured into the trapping discussion, saying that Inman had argued at some point – I missed the paper reference – that trapping was not a problem and might even be good for the effective (breeding) population, “because if you take out a male and he’s replaced by multiple other males, it will increase the effective population.”

The judge intervened here and said, “I don’t suppose that you’re suggesting that we resume trapping in wolverine habitat to increase the population?”

Crable looked somewhat sheepish and said no, that wasn’t what he was suggesting.

He concluded by saying that this was not “a coin flip” between equally robust sets of evidence. He emphasized again that a single study (McKelvey) was not enough to justify the listing, and said, “just because they [the USFWS] said that there was another way to do this doesn’t mean it was a coin flip.”

With that, the hearing concluded. The judge stated that he had “a lot of work to do” on this decision. We will probably have to wait at least six months for a ruling.

Thoughts and comments welcome. Stay tuned for some analysis over the next week or so.