ELR Citation: ELR 20259
No(s). 07-0677 (D.D.C. Sep 29, 2008)

A district court vacated a U.S. Fish and Wildlife Service (FWS) rule that simultaneously designated a cluster of gray wolves in the western Great Lakes region as a distinct population segment (DPS) and removed them from the Endangered Species Act (ESA) list of endangered species. The ESA is silent as to whether an agency can designate as a DPS a subpopulation of a listed species and then delist that subpopulation. The court, therefore, cannot endorse the FWS' "plain meaning" reading of the Act. Furthermore, there is no permissible construction of the Act to which the court can defer. Deference to an agency's interpretation of a statute is not appropriate where, as here, the agency wrongly believes that its interpretation is compelled by Congress. Accordingly, the FWS' erroneous conclusion precludes Chevron step-two review and therefore precludes Chevron step-two deference. On remand, the FWS should bring its expertise and experience to bear on the question of whether the ESA permits it to use the DPS tool in the fashion it has proposed.