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Defenders of Wildlife v. Jewell

United States District Court, D. Columbia.

September 23, 2014

DEFENDERS OF WILDLIFE, et al., Plaintiffs,
v.
SALLY JEWELL, et al., Defendants. THE HUMANE SOCIETY OF THE UNITED STATES, et al., Plaintiffs,
v.
U.S. FISH AND WILDLIFE SERVICE, et al., Defendants

Page 194

For Humane Society of The United States, Fund For Animals, Plaintiffs (1:12cv1965): Ralph E. Henry, Jr., LEAD ATTORNEY, HUMANE SOCIETY OF THE UNITED STATES, Washington, DC.

For DEFENDERS OF WILDLIFE, NATURAL RESOURCES DEFENSE COUNSEL, SIERRA CLUB, CENTER FOR BIOLOGICAL DIVERSITY, Plaintiffs (1:12-cv-01833-ABJ): Timothy Joseph Preso, LEAD ATTORNEY, EARTHJUSTICE, Bozeman, MT.

For HUMANE SOCIETY OF THE UNITED STATES, 12ca1965, FUND FOR ANIMALS, 12ca1965, Plaintiffs (1:12-cv-01833-ABJ): Ralph E. Henry, Jr., LEAD ATTORNEY, HUMANE SOCIETY OF THE UNITED STATES, Washington, DC.

For KENNETH LEE SALAZAR, in his official capacity as Secretary of the Interior, DANIEL M. ASHE, in his official capacity as Director, U.S. Fish and Wildlife Service, UNITED STATES FISH AND WILDLIFE SERVICE, Defendants (1:12-cv-01833-ABJ): Bridget Kennedy McNeil, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Environment & Natural Resources Division, Wildlife & Marine, Denver, CO; Michael Richard Eitel, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Environment & Natural Resources Division, Denver, CO.

For STATE OF WYOMING, Intervenor Defendant (1:12-cv-01833-ABJ): Jay A. Jerde, Jeremiah I. Williamson, LEAD ATTORNEYS, ATTORNEY GENERAL'S OFFICE FOR THE STATE OF WYOMING, Cheyenne, WY.

For SAFARI CLUB INTERNATIONAL, Intervenor Defendant (1:12-cv-01833-ABJ): Anna Margo Seidman, LEAD ATTORNEY, SAFARI CLUB INTERNATIONAL, Washington, DC.

For NATIONAL RIFLE ASSOCIATION OF AMERICA, Intervenor Defendant (1:12-cv-01833-ABJ): Anna Margo Seidman, LEAD ATTORNEY, SAFARI CLUB INTERNATIONAL, Washington, DC; Christopher A. Conte, LEAD ATTORNEY, NATIONAL RIFLE ASSOCIATION, Fairfax, VA.

For ROCKY MOUNTAIN ELK FOUNDATION, INC., Intervenor Defendant (1:12-cv-01833-ABJ): John I. Kittel, LEAD ATTORNEY, MAZUR & KITTEL, PLLC, Farmington Hills, MI.

For WYOMING WOLF COALITION 2013, Amicus (1:12-cv-01833-ABJ): John A. Sheehan, LEAD ATTORNEY, CLARK HILL PLLC, Washington, DC; Harriet M Hageman, PRO HAC VICE, HAGEMAN LAW P.C., Cheyenne, WY.

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MEMORANDUM OPINION

AMY BERMAN JACKSON, United States 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

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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.

BACKGROUND

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, 404 U.S.App.D.C. 171 (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.

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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.[1] Fed. Defs.' SOF ¶ 10, citing AR 309[2] 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[3] and added a genetic exchange

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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

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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 ...


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