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Center For Biological Diversity v. Kempthorne

August 6, 2007

CENTER FOR BIOLOGICAL DIVERSITY, PLAINTIFF,
v.
DIRK KEMPTHORNE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge

MEMORANDUM OPINION

I. INTRODUCTION

Plaintiff brought suit against defendants Secretary of the Department of Interior and Director of the U.S. Fish and Wildlife Service ("FWS") on December 14, 2006 alleging that defendants have unreasonably delayed making a final decision on plaintiff's rule-making petition in violation of the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(1). Plaintiff filed its rule-making petition on March 29, 2004 requesting FWS to take certain steps to prevent the Mexican gray wolf ("Mexican wolf") from becoming extinct in the wild. After waiting for a decision on the petition for over two years, plaintiff seeks a Court order to compel defendants to issue a final decision on plaintiff's petition pursuant to 5 U.S.C. § 706(1). Defendants allege that they made a final decision on plaintiff's petition since the commencement of this lawsuit. Accordingly, defendants contend that plaintiff's claims are moot and move this Court to dismiss plaintiff's claim pursuant to Fed. R. Civ. P. 12(b)(1) for lack of jurisdiction over the subject matter. For the foregoing reasons, the Court will GRANT defendants' Motion [7] to Dismiss.

II. BACKGROUND

The Mexican wolf was driven to the brink of extinction as a result of federal and local government efforts to eradicate the population of Mexican wolves in the wild.*fn1 (See Compl. ¶ 15.) Following the passage of the Endangered Species Act ("ESA"), however, the government listed the Mexican wolf as an endangered species on April 28, 1976 and began efforts to restore the Mexican wolf population in the wild. (Id. ¶ 16.) To that end, FWS adopted a Recovery Plan in 1982 with Mexico. (Id.) The plan provided that FWS would protect the Mexican wolves from being hunted. (Id.) In addition, FWS committed to breed Mexican wolves in captivity for release in Arizona and New Mexico on lands which wolves historically occupied.*fn2 (See id. ¶¶ 14, 16.)

Defendants, however, failed to implement the Recovery Plan until 1993. (Id. ¶ 17.) Then, after five years of rule-making, defendants finally promulgated a regulation ("the 10(j) rule") authorizing the reintroduction of the Mexican wolves pursuant to Section 10(j) of the ESA on January 12, 1998.*fn3 (Id. ¶ 18.) The 10(j) rule created two recovery zones covering portions of Arizona and New Mexico, but provided that only one zone would be used during the initial reintroduction period (Id. ¶ 19.) Furthermore, the 10(j) rule required defendants to conduct progress reports after the third and fifth years of the project to recommend the continuation, modification, or termination of the reintroduction effort. (Id. ¶ 23.) As a result of rule 10(j), the first Mexican wolves were reintroduced into the wild in the Blue Range Wolf Recovery Area in March 1998. (Id. ¶ 24.)

In 2001, defendants conducted the three-year review. (Id.) The review recommended the continuation of the reintroduction plan and proposed several modifications to the 10(j) rule. (See id. ¶ 25.) Specifically, the review recommended defendants to modify the regulation: (1) to allow FWS to release Mexican wolves into the additional recovery area located in the Gila National Forest; (2) to allow the wolves to establish territories outside the Recovery area; and (3) to require livestock owners on public land to take responsibility for the removal and disposal of deceased livestock. (See id. ¶¶ 26-28.) These findings were supported by an analysis conducted by the Arizona Game and Fish Department and the New Mexico Department of Game and Fish. (See Pl.'s Opp'n at 10.) FWS, however, failed to implement any of the proposed changes to the reintroduction regulation and continued the reintroduction effort pursuant to the existing 10(j) rule. (Compl. ¶ 29.)

After waiting for FWS to implement the recommendations of the three-year review for nearly three years, plaintiff petitioned FWS to amend the 10(j) rule on March 29, 2004. (Id.) The experimental Mexican wolf populations were in decline, and plaintiff feared that without change to the current 10(j) rule, the Mexican wolf would once again become extinct in the wild. (Id.) Thus, plaintiff's petition requested FWS to begin the rule-making process. (See id. ¶ 31; Pl.'s Opp'n Attach. 5 at 14.) Specifically, the petition asked FWS to amend the 10(j) rule: (1) to allow FWS to release Mexican wolves in the additional recovery area; (2) to permit wolves to establish territories outside the boundaries of the Blue Range Recovery Area; and (3) to define "nuisance" and "problem" wolves to exclude animals that scavenge on the remains of livestock that die from non-wolf related causes. (Compl. ¶ 31.) Defendants acknowledged receipt of plaintiff's petition on June 30, 2004 and informed plaintiff that a rule modification was being considered, but a final determination had not been made. (See Pl.'s Opp'n Attach. 6.) The letter also stated that defendants would contact plaintiff when defendants make a final determination on the proposed rule-making and when defendants take action on plaintiff's petition. (Id.)

In 2005, the Mexican Wolf Adaptive Management Oversight Committee ("AMOC") concluded its five-year review and submitted it to FWS.*fn4 (Compl. ¶ 34.) The five-year review recommended the continuation of the reintroduction effort, but with several modifications to the 10(j) rule. (Id.) In particular, AMOC recommended FWS to modify the 10(j) rule to allow the wolves to spread outside the recovery area and to combine the two recovery zones in order to provide the wolves with more territory. (Id.) In 2006, FWS agreed with the recommendations of the five-year report. (Id. ¶ 35.) However, FWS did not issue any amendments to modify the 10(j) rule or state that it would propose a new rule. (Id.)

By December 2006, plaintiff had not yet received a final decision either granting or denying its petition. (Id. ¶ 40; Pl.'s Opp'n at 14.) As a result, plaintiff filed a complaint alleging that defendants have unreasonably delayed making a final decision on its petition in violation of Section 555(b)*fn5 and Section 706(1)*fn6 of the APA. (Compl. ¶ 1.) To remedy the alleged unreasonable delay, plaintiff requests the Court to order defendants to issue a final decision on plaintiff's petition within 45 days. (Id. at 16.)

On February 8, 2007, FWS sent a letter to plaintiff regarding its 2004 petition. (Morgart Decl., Ex. 1). FWS stated that the letter represented the agency's decision regarding plaintiff's petition. (Id.) Furthermore, the letter provided that in response to plaintiff's petition and the five-year review, defendants have started the process to modify the 10(j) rule. (Id.) Defendants contend that this letter renders plaintiff's claim moot because it represents a final decision on plaintiff's petition. As a result, defendants filed their Motion [7] to Dismiss for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1).

III. DISCUSSION

A. Legal Standard

When confronted with a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, the court must "accept all of the factual allegations in [the] complaint as true." Jerome Stevens Pharm. v. FDA., 402 F.3d 1249, 1253 (D.C. Cir. 2005) (internal citations and quotations omitted). Accordingly, the court must make all reasonable inferences in favor of the plaintiff. See Artis v. Greenspan, 158 F.3d 1301, 1305-06 (D.C. Cir. 1998); see also DL v. District of Columbia, 450 F. Supp. 2d 11, 13 (D.D.C. 2006) ("In evaluating whether ...


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