United States District Court, District of Columbia
AMY BERMAN JACKSON, District Judge.
This case concerns the government's decision to remove the gray wolf in Wyoming from the endangered species list. Plaintiffs Center for Biological Diversity, Defenders of Wildlife, Fund for Animals, Humane Society of the United States, Natural Resources Defense Council, and Sierra Club, in this consolidated case, challenge the September 30, 2012 decision of the United States Fish and Wildlife Service ("FWS" or "the Service") to remove the wolves from the list under the Endangered Species Act ("ESA" or "the Act"). See Final Rule: Removal of the Gray Wolf in Wyoming from the Federal List of Endangered and Threatened Wildlife, 77 Fed. Reg. 55, 530 (Sept. 10, 2012) ("the 2012 rule"). The 2012 rule transferred management of the gray wolf in Wyoming from federal control to state control. Id.
Plaintiffs have moved for summary judgment, and they maintain that the decision was arbitrary and capricious because Wyoming's regulatory mechanisms are inadequate to protect the species, the level of genetic exchange shown in the record does not warrant delisting, and the gray wolf is endangered within a significant portion of its range. Pls.' Mot. for Summ. J. [Dkt. # 48] ("Pls.' Mot.") and Pls.' Mem. of P. & A. in Supp. of Mot. for Summ. J. [Dkt. # 48-1] ("Pls.' Mem.").
The Court will grant plaintiffs' motion for summary judgment in part and deny it in part and remand the matter back to the agency because it finds that the Service could not reasonably rely on unenforceable representations when it deemed Wyoming's regulatory mechanisms to be adequate. Given the level of genetic exchange reflected in the record, the Court will not disturb the finding that the species has recovered, and it will not overturn the agency's determination that the species is not endangered or threatened within a significant portion of its range. But the Court concludes that it was arbitrary and capricious for the Service to rely on the state's nonbinding promises to maintain a particular number of wolves when the availability of that specific numerical buffer was such a critical aspect of the delisting decision.
I. Statutory Background
Congress passed the ESA in 1973 "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, [and] to provide a program for the conservation of such endangered species and threatened species." 16 U.S.C. § 1531(b). An "endangered species" means any species that is "in danger of extinction throughout all or a significant portion of its range, " while a "threatened species" means any species that is "likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." Id. § 1532(6), (20). The Secretaries of the Interior and Commerce are required to publish and maintain a list of all species determined to be endangered or threatened. Id. § 1533(c)(1). "The Secretaries have delegated this authority to FWS and the National Marine Fisheries Service, depending on the species at issue." In re Polar Bear Endangered Species Act Listing and Section 4(d) Rule Litigation , 709 F.3d 1, 3 (D.C. Cir. 2013), citing 50 C.F.R. § 402.01(b).
The decision to list or delist a species under the ESA is governed by section 1533 of the Act. That section sets forth five factors the agency must consider when determining whether a species is endangered or threatened: "(A) the present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence." 16 U.S.C. § 1533(a)(1). The agency must base its decision to list or delist a species "solely on the basis of the best scientific and commercial data available... after conducting a review of the status of the species and after taking into account those efforts, if any, being made by any State or foreign nation... to protect such species, whether by predator control, protection of habitat and food supply, or other conservation practices...." Id. § 1533(b)(1)(A).
II. Factual and Procedural Background
A. Gray Wolves
Gray wolves have a complex and contentious history in the American west and northern Rocky Mountain ("NRM") region. Federal and state legislators and regulators have endeavored to harmonize demands that they manage the gray wolf population with efforts to maintain species viability as required under the ESA. See, e.g. , 16 U.S.C. § 1533(a)(1); 77 Fed. Reg. 55, 530; Wyo. Stat. Ann. § 23-1-103 (2013). The geographic range of the species once spanned nearly all of North America, but its reach and population declined over time. See 77 Fed. Reg. at 55, 535; Pls.' Statement of Facts [Dkt. # 48-2] ("Pls.' SOF") ¶ 4. This was due in large part to human-caused mortality of wolves, which remains "the most significant factor affecting the long term conservation status of the wolf population." 77 Fed. Reg. at 55, 553. By 1930, gray wolves were largely exterminated in the western United States. Pls.' SOF ¶ 5; Fed. Defs.' Statement of Facts [Dkt. # 56-1] ("Fed. Defs.' SOF") ¶ 8. The most recent data suggests that there are now 1, 774 gray wolves and approximately 109 breeding pairs in the northern Rocky Mountain region. 77 Fed. Reg. at 55, 552; Pls.' SOF ¶ 11; Fed. Defs.' SOF ¶ 23.
Since the federal government has been involved with managing the gray wolf as an endangered species in and around Wyoming for decades, the traits and habitat of the gray wolf have been extensively researched. Gray wolves prey primarily on medium and large mammals, including elk, various species of deer, and other large, hoofed mammals. 77 Fed. Reg. at 55, 535. They live in roaming packs that can include from two to twelve wolves, and each pack typically includes a breeding pair, defined as a male and female wolf capable of breeding offspring. Id . Litters are usually born in April, and in most years, eighty percent of pups survive until winter. Id .
B. Federal Management of the Gray Wolf and Delisting in the Northern Rocky Mountain Region
1. Recovery Efforts
The Service first designated the gray wolf in the northern Rocky Mountain region as endangered under the Act in 1973, and in 1980, it developed a recovery plan for wolves in the region. 77 Fed. Reg. at 55, 531; Pls.' SOF ¶ 8; Fed. Defs.' SOF ¶ 8. In 1987, FWS identified three recovery areas in the NRM most likely to support a recovered wolf population: northwestern Montana, central Idaho, and the Yellowstone National Park ("YNP") area of northwest Wyoming. Fed. Defs.' SOF ¶ 10, citing AR 309 at 6995-97, 7027; Pls.' SOF ¶ 8. The Service also established a recovery goal of a minimum of ten breeding pairs - defined as two wolves of the opposite sex and of an age capable of producing young - for a minimum of three consecutive years in each of the three recovery areas, for a total of thirty breeding pairs. 77 Fed. Reg. at 55, 536; Fed. Defs.' SOF ¶ 10; Pls.' SOF ¶ 8.
In 1994, the Service revised the NRM recovery goal. It revised the definition of breeding pair and added a genetic exchange component to the numeric recovery goal:
Thirty or more breeding pairs comprising some 300 wolves in a metapopulation (a population that exists as partially isolated sets of subpopulations) with genetic exchange between subpopulations should have a high probability of long term persistence. 77 Fed. Reg. at 55, 536; see Fed. Defs.' SOF ¶ 12; Pls.' SOF ¶ 9. The Service indicated that it would be preferable if this genetic exchange were to be natural, but it authorized human assistance if necessary. 77 Fed. Reg. at 55, 536-37.
The Service also designated two "nonessential experimental population recovery areas" under section 10(j) of the ESA to facilitate recovery and reintroduction efforts, one of which was the Greater Yellowstone Area ("GYA"). Fed. Defs.' SOF ¶ 11. The GYA recovery area includes portions of southeastern Montana, eastern Idaho, and northwestern Wyoming, including Yellowstone National Park, Grand Teton National Park, wilderness areas, forest land, and other public and private lands. 77 Fed. Reg. at 55, 542. The GYA comprises "one of the largest contiguous blocks of suitable habitat within the [northern Rockies] region." 77 Fed. Reg. at 55, 577; Pls.' SOF ¶ 12; see Fed. Defs.' SOF ¶ 14.
In 2000, the NRM wolf population reached the recovery goal of thirty breeding pairs and 300 wolves for the first time. 77 Fed. Reg. at 55, 531. In 2002, FWS conducted a peer review of the 1994 recovery plan, which reaffirmed the plan and its recovery goals. 77 Fed. Reg. at 55, 537. After 2002, the Service began looking at individual states as well as the previously identified recovery areas to measure progress because Montana, Idaho, and Wyoming each contain the "vast majority of one of the original three core recovery areas." Id. ; see Pls.' SOF ¶ 9; Fed. Defs.' SOF ¶ 16.
2. The 2003 Rule and Efforts to Delist in Wyoming
In 2003, after finding that gray wolf populations had recovered from the threat of extinction, FWS reclassified and delisted the gray wolf incrementally across three distinct population segments ("DPSs"). 77 Fed. Reg. at 55, 531, citing 68 Fed. Reg. 15, 804 (Apr. 1, 2003). This final rule was challenged and overturned. Id. The courts found that it was improper for the Service to downlist from endangered to threatened entire population segments based only on the viability of a core population. Id. , citing Defenders of Wildlife v. Sec'y, Dep't of Interior , 354 F.Supp.2d 1156, 1172 (D. Or. 2005); Nat'l Wildlife Fed'n v. Norton , 386 F.Supp.2d 553, 566 (D. Vt. 2005).
Also in 2003, the Service published an advanced notice of proposed rulemaking specific to the western DPS, which includes the northern Rocky Mountain region, stating its intent to delist the species because the recovery goal had been satisfied. 77 Fed. Reg. at 55, 531, citing 68 Fed. Reg. 15, 876 (Apr. 1, 2003). The notice explained that delisting would require the Service to consider threats to the species and what the states would put in place to address those threats. Id. In 2004, FWS determined that Idaho's and Montana's wolf management plans met the baseline requirements for delisting, but Wyoming's did not. Id. Wyoming challenged this rule in court, but the case was resolved on procedural grounds. 77 Fed. Reg. at 55, 531-32.
Following this, in 2005, Wyoming petitioned the Service to delist the gray wolf by recognizing a separate DPS for the northern Rocky Mountain region. 77 Fed. Reg. at 55, 532. The Service denied this petition because it found that Wyoming's 2003 measures still did not provide adequate protection for its portion of the wolf population. Id ., citing 71 Fed. Reg. 43, 410 (Aug. 1, 2006). Wyoming contested this finding in federal court, but the challenge was rendered moot in 2007, after the state amended its regulations and management plan. Id.
3. The 2008 Rule
Upon review of Wyoming's revised statutes and regulations, FWS promulgated a final rule recognizing the northern Rocky Mountain DPS and delisting the gray wolf in the NRM, this time including Wyoming. Id. , citing 73 Fed. Reg. 10, 514 (Feb. 27, 2008) (the "2008 rule"). A number of environmental groups challenged the 2008 rule in federal court, and the U.S. District Court for the District of Montana enjoined the rule on grounds that FWS's approval of Wyoming's wolf management plan was arbitrary and capricious. Defenders of Wildlife v. Hall , 565 F.Supp.2d 1160, 1174-75 (D. Mont. 2008) (granting preliminary injunction because of lack of evidence of genetic exchange between wolf subpopulations, because Wyoming did not commit to manage for 15 breeding pairs, and because the state's trophy game area, where wolves are managed as game animals subject to mortality quotas, was not fixed or permanent). The gray wolf reverted back to federal protection under the ESA for the entire NRM as a result. See 77 Fed. Reg. at 55, 532.
4. The 2009 Rule
Following the court ruling, FWS initiated another rulemaking, and in 2009, it promulgated a rule delisting the gray wolf in Idaho and Montana but not in Wyoming. Id. , citing 74 Fed. Reg. 15, 123 (Apr. 2, 2009) (the "2009 rule"). The agency again found Wyoming's wolf management plan to be inadequate to meet ESA delisting recovery requirements, and it recommended that the entire state be designated as a "trophy game area." Id. ; Fed. Defs.' SOF ¶ 26; Pls.' SOF ¶ 19. Environmental groups challenged the 2009 rule, and the U.S. District Court for the District of Montana vacated it. 77 Fed. Reg. at 55, 532; Defenders of Wildlife v. Salazar , 729 F.Supp.2d 1207, 1228 (D. Mont. 2010) (holding that the agency could not delist the species for only part of the DPS). Following this decision, Congress passed legislation requiring FWS to reissue the 2009 rule. 77 Fed. Reg. 55, 532-33; Fed. Defs.' SOF ¶ 27. FWS complied, delisting the species in Idaho and Montana and leaving Wyoming as the only NRM state subject to ESA management requirements. 77 Fed. Reg. at 55, 533, citing 76 Fed. Reg. 25, 590 (May 5, 2011).
At the same time, Wyoming challenged the fact that it was not delisted in 2009, and the U.S. District Court for the District of Wyoming ruled in favor of Wyoming. Wyoming v. U.S. Dep't. of Interior , 2010 WL 4814950, Nos. 09-CV-118J, 09-CV-138J, at *45 (D. Wyo. Nov. 18, 2010). The court rejected the Service's recommendation that the whole state be designated a trophy game area, and it remanded the rule back to the agency to reconsider whether Wyoming's regulatory framework would maintain its share of a recovered wolf population and provide adequate genetic connectivity. Id. ; 77 Fed. Reg. at 55, 533.
5. The 2012 Rule
In light of the 2010 decision from the District of Wyoming, FWS and Wyoming embarked on an effort to establish a regulatory regime within the state that would support delisting. 77 Fed. Reg. at 55, 533. Their discussions were designed to address a series of concerns identified by the Service:
(1) The size and permanency of the Trophy Area; (2) conflicting language within the State statutes concerning whether Wyoming would manage for at least 15 breeding pairs and at least 150 wolves, exactly 15 breeding pairs and 150 wolves, or only 7 breeding pairs and 70 wolves; and (3) liberal depredation control authorizations and legislative mandates to aggressively manage the population down to minimum levels.
Wyoming revised its statutes and regulations as a result. It amended its statutes to make the "trophy game area" - where wolves would be managed as game animals and subject to regulated hunting - permanent in the northwest portion of the state. Id. It also amended its statute to require the state "to reasonably ensure at least ten (10) breeding pairs of gray wolves and a total of at least one hundred (100) individual gray wolves are located in this state outside of Yellowstone National Park and the Wind River Indian Reservation at the end of the current calendar year." Wyo. Stat. Ann. § 23-1-304(a); 77 Fed. Reg. at 55, 535. Further, the state revised its regulations governing the taking of wolves. 77 Fed. Reg. at 55, 535.
In light of these amendments, on October 5, 2011, the Service issued a proposed rule to delist the species in the state. 77 Fed. Reg. at 55, 543, citing 76 Fed. Reg. 61, 782 (Oct. 5, 2011); Fed. Defs.' SOF ¶ 34. As part of this process, the Service commissioned a third-party peer review of the proposed rule, which involved five independently appointed scientists who conducted two reviews. 77 Fed. Reg. at 55, 543, citing AR 855; AR 718-852; AR 853-953.
The first review of the newly enacted laws and regulations produced a set of conflicting opinions. Three of the five scientists found that Wyoming's framework "followed the scientific literature and appropriate standards." AR 858. Two dissenting scientists, Dr. Mills and Dr. Vucetich, found the references in the state's materials to a minimum population "buffer" above the minimum number of wolves to be protected problematic because that buffer was vague and undefined. AR 860. Additionally, Dr. Vucetich contended that the plan lacked detail. AR 861. The peer review included a recommendation that ...