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Humane Society of the United States v. Jewell

United States District Court, D. Columbia.

December 19, 2014

HUMANE SOCIETY OF THE UNITED STATES, et al., Plaintiffs,
v.
SALLY JEWELL, Secretary of the Interior, et al., [1] Defendants,
v.
STATE OF WISCONSIN, et al. Intervenor-Defendants

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For HUMANE SOCIETY OF THE UNITED STATES, BORN FREE USA, HELP OUR WOLVES LIVE, FRIENDS OF ANIMALS AND THEIR ENVIRONMENT, Plaintiffs: Bruce A. Wagman, PRO HAC VICE, SCHIFF HARDIN, LLP, San Francisco, CA; Ralph E. Henry, Jr., HUMANE SOCIETY OF THE UNITED STATES, Washington, DC.

For U.S. DEPARTMENT OF INTERIOR, FISH AND WILDLIFE SERVICE, Defendants: Andrea Gelatt, U.S. DEPARTMENT OF JUSTICE, Land & Natural Resources Division, Washington, DC.

For SALLY JEWELL, Secretary of the Interior, Defendant: Andrea Gelatt, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Land & Natural Resources Division, Washington, DC.

For STATE OF WISCONSIN, WISCONSIN DEPARTMENT OF NATURAL RESOURCES, Intervenor Defendants: Cynthia R. Hirsch, LEAD ATTORNEYS, WISCONSIN DEPARTMENT OF JUSTICE, Madison, WI; Thomas James Dawson, III, LEAD ATTORNEY, WISCONSIN DEPARTMENT OF JUSTICE, Madison, WI.

For STATE OF MICHIGAN, MICHIGAN DEPARTMENT OF NATURAL RESOURCES, Intervenor Defendants: Nathan Arthur Gambill, LEAD ATTORNEY, STATE OF MICHIGAN - ATTORNEY GENERAL, Lansing, MI; Pamela J. Stevenson, LEAD ATTORNEY, MICHIGAN DEPARTMENT OF ATTORNEY GENERAL, Natural Resources/Environmental Division, Lansing, MI; Stephen D. Thill, MICHIGAN DEPARTMENT OF ATTORNEY GENERAL, Environment, Natural Resource and Agriculture Division, Lansing, MI.

For SAFARI CLUB INTERNATIONAL, Intervenor Defendant: Anna Margo Seidman, LEAD ATTORNEY, SAFARI CLUB INTERNATIONAL, Washington, DC; William P. Horn, LEAD ATTORNEY, BIRCH, HORTON, BITTNER AND CHEROT, Washington, DC; James Hardwick Lister, BIRCH HORTON BITTNER AND CHEROT, P.C., Washington, DC.

For NATIONAL RIFLE ASSOCIATION OF AMERICA, Intervenor Defendant: Christopher A. Conte, LEAD ATTORNEY, NATIONAL RIFLE ASSOCIATION, Fairfax, VA; William P. Horn, LEAD ATTORNEY, BIRCH, HORTON, BITTNER AND CHEROT, Washington, DC; James Hardwick Lister, BIRCH HORTON BITTNER AND CHEROT, P.C., Washington, DC.

For U.S. SPORTSMEN'S ALLIANCE FOUNDATION, WISCONSIN BEAR HUNTERS ASSOCIATION, WISCONSIN BOWHUNTERS ASSOCIATION, UPPER PENINSULA BEAR HOUNDSMEN ASSOCIATION, MICHIGAN HUNTING DOG FEDERATION, Intervenor Defendants: William P. Horn, LEAD ATTORNEY, BIRCH, HORTON, BITTNER AND CHEROT, Washington, DC; James Hardwick Lister, LEAD ATTORNEY, BIRCH HORTON BITTNER AND CHEROT, P.C., Washington, DC.

For MICHIGAN UNITED CONSERVATION CLUBS, Intervenor Defendant: James Hardwick Lister, LEAD ATTORNEY, BIRCH HORTON BITTNER AND CHEROT, P.C., Washington, DC; John I. Kittel, MAZUR & KITTEL, PLLC, Farmington Hills, MI.

For ROCKY MOUNTAIN ELK FOUNDATION, Intervenor Defendant: James Hardwick Lister, LEAD ATTORNEY, BIRCH HORTON BITTNER AND CHEROT, P.C., Washington, DC; William P. Horn, LEAD ATTORNEY, BIRCH, HORTON, BITTNER AND CHEROT, Washington, DC; John I. Kittel, MAZUR & KITTEL, PLLC, Farmington Hills, MI.

For MINNESOTA DEPARTMENT OF NATURAL RESOURCES, Amicus: David Peter Iverson, LEAD ATTORNEY, OFFICE OF THE MINNESOTA ATTORNEY GENERAL, St. Paul, MN.

For ASSOCIATION OF FISH AND WILDLIFE AGENCIES, Amicus: Marilyn Carol Bambery, LEAD ATTORNEY, BAMBERY LAW OFFICE, Dewitt, MI.

OPINION

BERYL A. HOWELL, United States District Judge.

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Table of Contents

I. BACKGROUND

A. Statutory Framework: The Endangered Species Act Of 1973

1. The 1973 Act

2. The 1978 Amendment To The Definition Of " Species"

B. 1966-1978: The Listing Of The Gray Wolf

1. 1966-1976: Listing of Four Wolf Subspecies

2. 1977-78: Listing Of Gray Wolves At Taxonomic Species Level

C. 1978-2000: General Recovery Efforts And The 1992 Recovery Plan

D. 2000 to Present: Attempts To Delist The Gray Wolf

1. The 2003 Rule

2. The 2007 Rule

3. The 2009 Rule

E. The Challenged Final Rule

1. The NPRM

2. Promulgating The Final Rule

F. Procedural History

II. LEGAL STANDARD

A. Summary Judgment

B. Chevron Framework

C. Administrative Procedure Act

III. DISCUSSION

A. The Plaintiffs Have Standing

B. The FWS's Interpretation Of The ESA Is Unreasonable And Therefore

Not Entitled To Deference

1. A DPS Cannot Be Identified To Delist A Vertebrate Population

2. Designating And Delisting A DPS Of A Broader Listed Species Violates

The ESA

C. The Delisting Of The Western Great Lakes DPS Was Contrary To The

Evidence Before The Agency

1. Failure To Explain Why Territory Suitable For Wolf Occupation Is

Not A Significant Part Of The Gray Wolf's Range

2. Failure To Explain Impact Of Combined Mortality Factors

3. Failure To Explain The Adequacy Of Non-Existent State

Regulatory Schemes

4. Failure To Explain How A State Plan To Allow Virtually Unregulated

Killing Of Wolves In More Than Fifty Percent Of The State Does Not

Constitute A Threat To Species

D. Remedy

IV. CONCLUSION

MEMORANDUM OPINION

The gray wolf, like the bald eagle and the grizzly bear, has become a symbol of endangered species but, perhaps more than other such species, the gray wolf is also a lightning rod for controversy. See generally Jamison E. Colburn, Canis (Wolf) and Ursus (Grizzly): Taking the Measure of an Eroding Statute, 22-Fall Nat. Resources & Env't 22 (2007). The instant suit, brought by a group of " animal protection and conservation organizations," Compl. ¶ 1, ECF No. 1, against the United States Department of the Interior (the " DOI" ) and the National Fish and Wildlife Service (the " FWS" ), is the latest iteration in a long-running dispute over the fate of the gray wolf that predates the Endangered Species Act of 1973 (the " ESA" ), 16 U.S.C. § 1531 et seq.

Since 2003, the FWS has promulgated rules to remove federal protections under the ESA for the gray wolf population at issue in this matter four times. The first

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three times, the FWS rescinded the proposed rule " delisting" the gray wolf, twice on the orders of Federal courts and once on its own initiative when facing another likely legal challenge. The instant lawsuit challenges the FWS's fourth attempt reflected in a Final Rule, which took effect in January 2012, that " delisted," or removed from the ESA's list of protected species, the gray wolves in nine states in the Midwest. See Revising the Listing of the Gray Wolf (Canis Lupus) in the Western Great Lakes (the " Final Rule" ), 76 Fed.Reg. 81,666 (Dec. 28, 2011). The plaintiffs, the Humane Society of the United States (" HSUS" ), Born Free, USA (" Born Free" ), Help Our Wolves Live (" HOWL" ), and Friends of Animals and Their Environment (" FATE" ), allege that the Final Rule violates the ESA and the Administrative Procedure Act (the " APA" ), 5 U.S.C. § 551 et seq., by, inter alia, (1) improperly designating and delisting a distinct population segment of a species that was already listed as " endangered," see Compl. ¶ ¶ 113-120; (2) improperly relying on inadequate state regulatory mechanisms to protect gray wolves following their removal from the protections of the ESA, see id. ¶ ¶ 121-126; and (3) improperly designating a group of wolves as a distinct population segment without sufficient knowledge about the species to which the wolves in that population belong, see id. ¶ ¶ 127-130.

Pending before the Court are three cross-motions for summary judgment filed by (1) the plaintiffs, Pls.' Mot. Summ. J. at 1 (" Pls.' Mot." ), ECF No. 24; (2) the defendants, the Secretary of the Interior, the DOI, and the FWS (collectively, the " Federal defendants" or the " defendants" ), Fed. Defs.' Cross-Mot. Summ. J. (" Defs.' Mot" ) at 1, ECF No. 27; and (3) the Defendant-Intervenor Hunter Conservation Coalition (" HCC" ),[2] HCC's Cross-Mot. Summ. J. (" HCC's Mot." ) at 1, ECF No. 33.[3] The States of Wisconsin and Michigan oppose the plaintiffs' Motion and support the Federal defendants' motions as defendant-intervenors. Wisconsin's Opp'n Pls.' Mot. (" Wisc. Opp'n" ), ECF No. 29; State of Michigan and Michigan Dep't of Nat. Resources' Opp'n Pls.' Mot. and Concurring in Fed. Defs.' Mot. (" Mich. Opp'n" ), ECF No. 30. The State of Minnesota and the Association of Fish and Wildlife Agencies have filed briefs as amicus curiae. Amicus Minnesota Dep't of Nat. Resources' Mem. Supp. Defs.' Cross-Mot. Summ. J. and Opp'n Pls.' Mot. (" Minn. Opp'n" ), ECF No. 31; Brief of Amicus Curiae Assoc. of Fish and Wildlife Agencies (" AFWA Brief" ), ECF No. 38.

The D.C. Circuit has noted that, at times, a court " must lean forward from the bench to let an agency know, in no uncertain terms, that enough is enough." Pub. Citizen Health Res. Grp. v. Brock, 823 F.2d 626, 627, 262 U.S.App.D.C. 218 (D.C. Cir. 1987). This case is one of those times. The FWS's Final Rule challenged in this action is no more valid than the agency's three prior attempts to remove federal protections for a population of gray wolves, which are otherwise members of an endangered species. The challenged Final Rule is predicated on both an untenable reading of the ESA and other

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wise flawed findings. For the reasons more fully detailed below, the plaintiffs' motion is granted and the defendants and defendant-intervenor's motions are denied.

I. BACKGROUND

The issues posed by the instant suit are best understood in the context of the general statutory framework and the history of efforts to bring the gray wolf back from the brink of extinction. These subjects are examined first, followed by an overview of previous attempts by the FWS to delist the wolf population at issue and the specific facts and procedural history of this case.

A. Statutory Framework: The Endangered Species Act Of 1973

The ESA is " the most comprehensive legislation for the preservation of endangered species ever enacted by any nation" in the world. Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978); In re Am. Rivers & Idaho Rivers United, 372 F.3d 413, 414, 362 U.S.App.D.C. 46 (D.C. Cir. 2004) (quoting id.). The multi-faceted purpose of this landmark legislation is " to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation of such endangered species and threatened species, and to take such steps as may be appropriate to achieve the purposes of the treaties and conventions" that the United States has joined to protect threatened animals and ecosystems. 16 U.S.C. § 1531(b).

The ESA's scope is broad, potentially encompassing all fish, plant and wildlife on Earth. See 16 U.S.C. § 1531. To provide guidance, Congress delegated many of the details of enforcing the ESA's mandate to the Secretary of the Interior, who is required " to promulgate regulations listing those species of animals that are 'threatened' or 'endangered' under specified criteria, and to designate their 'critical habitat.'" Bennett v. Spear, 520 U.S. 154, 157-58, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (citing 16 U.S.C. § 1533). This authority has been delegated to the FWS.[4] 50 C.F.R. § 402.01(b); In re Polar Bear Endangered Species Act Listing & Section 4(d) Rule Litig.-MDL No. 1993 ( In re Polar Bear), 709 F.3d 1, 3, 404 U.S.App.D.C. 171 (D.C. Cir. 2013), cert. denied, 134 S.Ct. 310, 187 L.Ed.2d 155 (2013). To determine whether a particular animal, plant, fish, or insect belongs on the list of " endangered" or " threatened" species, " the [FWS] must first define the species so the agency can estimate its population." Am. Wildlands v. Kempthorne, 530 F.3d 991, 994, 382 U.S.App.D.C. 78 (D.C. Cir. 2008).

The ESA defines the term " species" to " include[] any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature." 16 U.S.C. § 1532(16). Thus, a wildlife " species" refers not only to a taxonomic species or subspecies, but also to a smaller " distinct population segment." Id. Neither of the terms " subspecies" or " distinct population segment" is defined. Id.; Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act (" DPS Policy" ), 61 Fed.Reg. 4722, 4722 (Feb. 7, 1996).

The definition of " species" has particular importance under the ESA since this word is part of the terms " endangered species" and " threatened species," both of which

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designations, when bestowed on an organism by the FWS, entitle that organism to the panoply of federal protections available under the ESA. See 16 U.S.C. § 1532(6) (defining " endangered species" ); id. § 1532(20) (defining " threatened species" ). An " endangered species" is, according to the ESA, " any species which is in danger of extinction throughout all or a significant portion of its range," excluding certain types of insects. Id. § 1532(6). A " threatened species" is " any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." Id. § 1532(20). The phrase " all or a significant portion of its range," incorporated in the definitions for both endangered and threatened species, is also not a defined term. See id.; Final Rule, 76 Fed.Reg. at 81,722 (" The [ESA] does not define the term 'significant portion of its range.'" ).

When determining if a species ought to be listed as threatened or endangered, the FWS is required by the ESA to base its finding on any of five factors: " (A) the present or threatened destruction, modification, or curtailment of [the species'] 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 determination must rest " solely on the basis of the best scientific and commercial data available." 16 U.S.C. § 1533(b)(1)(A); Am. Wildlands, 530 F.3d at 994.

Once a species is determined to be threatened or endangered, and then published on the ESA's list of such species, many statutory prohibitions and federal regulations take effect to protect that species. See, e.g., 16 U.S.C. § 1536(a)(2) (requiring federal agencies to insure any federal action " is not likely to jeopardize the continued existence of any endangered species or threatened species" ); id. § 1538 (prohibiting variety of acts relating to endangered and threatened species); see also In re Polar Bear, 709 F.3d at 2; Humane Soc'y of U.S. v. Kempthorne, 527 F.3d 181, 182, 381 U.S.App.D.C. 230 (D.C. Cir. 2008) (detailing ESA prohibition on taking of endangered species); Ariz. Cattle Growers' Assoc. v. Salazar, 606 F.3d 1160, 1172 (9th Cir. 2010) (" Listing alone results in certain protections for the species" including those that " may impose economic burdens." ). A species listed as threatened is entitled to any protections the Secretary authorizes through the promulgation of regulations that are " necessary and advisable to provide for the conservation of such species." 16 U.S.C. § 1533(d); Fund For Animals v. Norton, 295 F.Supp.2d 1, 4 (D.D.C. 2003).

The lack of statutory definitions for key terms in the ESA often exacerbates disputes over the appropriate classification of a species, as it has in the instant matter. Thus, a closer look at the legislative changes to the definitions of " species," " endangered species," and " threatened species" in the ESA is helpful in reviewing the FWS's interpretation of these pivotal statutory terms.

1. The 1973 Act

As originally enacted in 1973, the ESA defined " species" as follows: " The term 'species' includes any subspecies of fish or wildlife or plants and any other group of fish or wildlife of the same species or smaller taxa in common spatial arrangement that interbreed when mature." Endangered Species Act of 1973, Pub. L. 93-205, § 3(11), 87 Stat. 884, 886 (1973).[5]

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" [E]ndangered species" were defined as " any species which is in danger of extinction throughout all or a significant portion of its range," except for insects that " would present an overwhelming and overriding risk to man" if protected. Id. § 3(4), 87 Stat. at 885. " [T]hreatened species" were defined as " any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." Id. § 3(15), 87 Stat. at 886.

These definitions represented a marked shift from those used in the previous conservation laws, passed in 1966 and 1969. These predecessor laws limited the scope of federal protections to those " species of native fish and wildlife . . . that are threatened with extinction," Endangered Species Preservation Act of 1966, Pub. L. 89-669 § 1(a), 80 Stat. 926, 926 (1966), and generally required a global assessment. This global assessment requirement was made explicit in the 1969 version. See Endangered Species Conservation Act of 1969, Pub. L. 91-135 § 2, 83 Stat. 275, 275 (1969) (limiting protections to " species or subspecies of fish or wildlife which the Secretary has determined . . . to be threatened with worldwide extinction" ). The ESA was intended to provide more flexibility to list species threatened with extinction based on more localized assessments and, thereby, improve protections for such species. See, e.g., 119 Cong. Rec. 30,162-63 (1973) (Statement of Rep. John Dingell, Jr.), reprinted in U.S. Sen. Comm. on Environment and Public Works, 97th Congress, Legislative History of the Endangered Species Act of 1973 (" Leg. Hist." ), Serial No. 97-6 (February 1982) at 193 (" The existing laws are sound, as far as they go, but later events have shown that they do not go far enough. Present laws need to be made more flexible, to adapt themselves to the needs of the animals themselves and to deal with problems which did not exist until a few years ago." ).[6] To help accomplish this purpose, two significant changes were made in the definitions in the ESA. First, the definition of " species" was broadened to include reference to " other group[s]" or " smaller taxa" of a fish or wildlife species that met certain conditions. See § 3(11), 87 Stat. at 886; LEG. HIST. at 150 (House Report on the bill that became the ESA noting that " '[s]pecies' is defined broadly enough to include any subspecies of fish or wildlife or plants, or any population of such species." ).

Second, the phrase " significant portion of its range" was inserted into the definitions of " endangered species" and " threatened species." See id. § § 3(4), 87 Stat. at 885 (defining endangered species); 3(15), 87 Stat. at 886 (defining threatened species). This phrase was intended to extend federal protection to animals when their numbers were dwindling significantly, even if populations of those animals continued

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to persist somewhere. See LEG. HIST. at 193 (Statement of Rep. Dingell) (noting phrase " significant portion of range" would " extend[] protection to animals which are in trouble in any significant portion of their range, rather than threatened, a[s] they must now be, with worldwide extinction" ); id. at 200 (Statement of Rep. Charles M. Price) (same); id. at 202 (Statement of Rep. Mario Biaggi) (" [W]e are defining the problem as broadly as possible. Instead of merely protecting those species which are now in danger, we are developing a concept of protection which will have continuous force. We are including those species which, at some future date, might become endangered." ). In urging passage of the bill that became the ESA, a House sponsor summed up the ESA's purpose and scope, stating that " [b]y heeding the warnings of possible extinction today, we will prevent tomorrow's crisis." Id. at 205 (Statement of Rep. Benjamin Gilman).

The Senate's consideration of its version of the ESA echoed the House's concerns and made clear that the ESA was designed to prevent the extinction of species by providing greater flexibility in adopting prophylactic measures and extending federal protection to species before they reached the absolute brink of worldwide extinction, as had been the case under previous laws. The report of the Senate Committee on Commerce, which recommended passage of the ESA, noted that the legislation " provide[d] a broadened concept of 'endangered species' by affording the Secretary the additional power to list animals which he determines are likely within the foreseeable future to become threatened with extinction." Leg. History at 302 (S. Rep. No. 93-307). This " [f]lexibility in regulation is enhanced by a provision which allows for listing if the animal is endangered over a 'substantial portion of its range.'" Id.

2. The 1978 Amendment To The Definition Of " Species"

Five years after passage of the ESA, Congress adopted amendments to the ESA to streamline the administrative process for listing species as endangered or threatened. Specifically, these amendments addressed " the application for, and review of, an exemption from the prohibition against agency actions which jeopardize endangered or threatened species or their critical habitat," and " improve[d] the process whereby species or their critical habitats are designated." Leg. Hist. at 643 (Endangered Species Act Amendments (" ESAA" ) of 1978, Public Law 95-632,, Background ). One ESAA provision modified the definition of " species" to include the phrase " distinct population segment" as follows: " The term 'species' includes any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature." Endangered Species Act Amendments of 1978, Pub. L. 95-632 § 2(5), 92 Stat. 3751, 3752 (1978).

As noted, the phrase " distinct population segment" is not defined in the ESA, nor is this phrase " commonly used in scientific discourse" or " recognized in formal taxonomic terms." DPS Policy at 4722. Plainly, the addition of the phrase " DPS" to the definition of " species" authorized the listing of some entities that were not classified at the taxonomic level of species or subspecies. See ESAA § 2(5), 92 Stat. at 3752. The legislative history for this amended definition in the ESAA is sparse, with virtually no discussion of the term's meaning or the intended effect of this change in the definition of " species." Nevertheless, a report the next year by the Senate Committee on Environment and Public Works (the " 1979 Senate Committee

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Report" ) provides relevant post hoc guidance on the meaning of this term.

The 1979 Senate Committee Report accompanying a bill to, inter alia, reauthorize appropriations for the ESA, addressed recommendations made by the General Accounting Office (" GAO" ) (now named the " Government Accountability Office" ) during an oversight hearing " to determine the necessary reauthorization amounts." Leg. Hist. at 1393 (1979 Senate Committee Report, S. Rep. 96-151). The GAO expressed concern over aspects of the DOI's implementation of the ESA and singled out the definition of " species," which referenced " distinct population segment," as worthy of amendment. See id. at 1396-97; see also General Accounting Office, Endangered Species: A Controversial Issue Needing Resolution, CED-79-65 (July 2, 1979) (" GAO Report" ) at 52-59. The GAO opined that the definition of " species" was too broad and conferred expansive authority on the FWS, citing as an example that the 1978 definition of " species" could result in " squirrels in a specific city park . . . be[ing] listed as endangered, even though an abundance of squirrels lived in other parks in the same city and elsewhere." GAO Report at 52. Among the GAO's recommendations was a proposal that Congress eliminate the phrase " distinct population segment" from the definition of " species." Leg. Hist. at 1396 (1979 Senate Committee Report); see also GAO Report at ii, 57-60. The FWS opposed the GAO's recommendation citing the agency's need for broad flexibility to " adopt different management practices for healthy, threatened or endangered populations." Leg. Hist. at 1396.

Siding with the FWS, the Senate Committee rejected the GAO's recommended definitional change, explaining that " the U.S. population of an animal should not necessarily be permitted to become extinct simply because the animal is more abundant elsewhere in the world." Id. at 1397. According to the 1979 Senate Committee Report, " listing of populations may be necessary when the preponderance of evidence indicates that a species faces a widespread threat, but conclusive data is available with regard to only certain populations." Id. While acknowledging " the great potential for abuse of this authority," this report cautioned the FWS " to use the ability to list populations sparingly and only when the biological evidence indicates that such action is warranted." Id.

Both the GAO and Senate reports in 1979 were focused on the 1978 definition's expansion of the FWS's authority to extend protection to discrete population groups within taxonomic species, even when that species was not otherwise endangered. Neither report made any reference to a possible use of this amended definition to remove protection from such population groups within an already listed taxonomic species. Indeed, the GAO Report expressed concern that the FWS would use DPS designations to extend Federal protection too broadly by listing " geographically limited populations of vertebrate species . . . even though they may not be endangered or threatened throughout all or a significant portion of their existing ranges," which could " create increase the number of potential conflicts with Federal, State, and private projects and programs." GAO Report at 51. Rather than continue permitting the listing of discrete population segments, the GAO recommended that listings be limited to " entire species." Id. at 55. This was the context in which the Senate Committee rejected the GAO's recommendation. See Leg. Hist. at 1396-97; GAO Report at 52-59. The notion that the FWS would use the 1978 definitional change to delist and remove protections from a DPS-designated population of an already listed taxonomic

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species was not acknowledged as a potential problem, perhaps in light of the overall purpose of the ESA " to protect, conserve, propagate, and restore endangered species." Leg Hist. at 393 (Statement of Sen. John Tunney).

Almost twenty years after the phrase " distinct population segment" was first incorporated into the ESA without a statutory definition, the FWS promulgated its own policy, in 1996, to guide the identification of threatened and endangered DPSs. The agency outlined " three elements" required for designation of a population as a DPS: the " [d]iscreteness of the population segment[,]" the " [s]ignificance of the population segment[,]" and the " population segment's conservation status." DPS Policy, 61 Fed.Reg. 4725. These elements are discussed in more detail infra at Part III.B.2.

B. 1966-1978: The Listing Of The Gray Wolf

The gray wolf ( Canis lupus ) has been at the forefront of the movement to conserve endangered species for many years and, in certain respects, is one of its success stories, considering the gray wolf's status when conservation efforts began. " By the 1930s, wolves were nearly erased from the lower 48 States as a result of one of the most effective eradication campaigns in modern history." Hope M. Babcock, The Sad Story of the Northern Rocky Mountain Gray Wolf Reintroduction Program, 24 Fordham Envtl. L.Rev. 25, 38 (2013) (internal quotation marks omitted). Consequently, multiple subspecies of gray wolves were among the earliest wildlife to be protected by federal law. The history of the gray wolf's listing as an endangered species is illuminating in evaluating the positions of the parties in the instant case.

1. 1966-1976: Listing of Four Wolf Subspecies

The first federal legislation protecting endangered species, the Endangered Species Preservation Act of 1966 (the " 1966 Act" ), provided the authority for listing the " timber wolf" ( Canis lupus lycaon ) as " threatened with extinction." Endangered Species, 32 Fed.Reg. 4001, 4001 (Mar. 11, 1967). Such a listing required, according to the 1966 Act, the Secretary of the Interior to find " that its existence is endangered because its habitat is threatened with destruction, drastic modification, or severe curtailment, or because of overexploitation, disease, predation, or because of other factors, and that its survival requires assistance." 1966 Act § 1(c). The " timber wolf" was one of only fourteen mammals identified at that time as " threatened with extinction," along with, inter alia, the grizzly bear and the Florida panther. Endangered Species, 32 Fed.Reg. at 4001.

Federal law protecting endangered species was enhanced in 1969 with the passage of the Endangered Species Conservation Act of 1969 (the " 1969 Act" ), the immediate precursor to the ESA. See Endangered Species Conservation Act of 1969, Pub. L. 91-135, 83 Stat. 275 (1969). The revisions prohibited, inter alia, the import and sale of endangered species, see id. § 4, whereas the 1966 Act addressed only the taking or harming of endangered species or their habitat on federal land, see 1966 Act § 4(c), 80 Stat. at 928. As noted, the 1969 Act, however, applied expressly only to species " threatened with worldwide extinction," a narrow focus later broadened by the ESA. See 1969 Act § 2. The timber wolf's place on the list of protected species remained unchanged under the 1969 Act until it was joined by another gray wolf subspecies, the Northern Rocky Mountain Wolf, Canis lupus irremotus, in 1973, shortly before enactment

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of the ESA. Amendments to Lists of Endangered Fish and Wildlife, 38 Fed.Reg. 14,678, 14,678 (June 4, 1973). Upon passage of the ESA, the two subspecies-- Canis lupus lycaon (now referred to as the Eastern timber wolf) and Canis lupus irremotus (the Northern Rocky Mountain wolf)--remained on DOI's list of " endangered native wildlife," but the gray wolf species, Canis lupus, as a whole was not listed. See § 17.12 Endangered Native Wildlife, 39 Fed.Reg. 1175, 1175 (Jan. 4, 1974).

The Eastern timber wolf and the Northern Rocky Mountain wolf were joined by the Mexican wolf ( Canis lupus baileyi ), on the list of endangered species in 1976. Determination that Two Species of Butterflies are Threatened Species and Two Species of Mammals are Endangered Species, 41 Fed.Reg. 17,736, 17,737 (Apr. 28, 1976). In proposing the Mexican wolf for listing as endangered, the FWS noted that the subspecies " formerly was common in Arizona, New Mexico, southwestern Texas, and much of Mexico" but had " declined substantially in numbers and distribution, because of habitat loss and killing by man." Lists of Endangered and Threatened Fauna, 40 Fed.Reg. 17,590, 17,590 (Apr. 21, 1975). In 1975, it was believed that fewer than 200 members of this gray wolf subspecies remained in Mexico and in the United States. Id. The piecemeal listing of gray wolf subspecies continued when, later in 1976, a fourth subspecies of the gray wolf, Canis lupus monstrabilis, with a range encompassing Texas, New Mexico, and Mexico, was added to the list of endangered species. Endangered Status for 159 Taxa of Animals, 41 Fed.Reg. 24,062, 24,066 (June 14, 1976). Altogether, by mid-June 1976, four subspecies of the gray wolf were officially listed as endangered species by the FWS.

At the same time that the FWS was adding gray wolf subspecies to the lists of federally protected species, the Commissioner of the Minnesota Department of Natural Resources petitioned the agency " seeking to exclude Minnesota from the range over which the eastern timber wolf ( Canis lupus lycaon ) is determined to be an endangered species . . . ." Eastern Timber Wolf in Minnesota, Review of Status, 39 Fed.Reg. 40,877, 40,877 (Nov. 21, 1974). This petition was considered, along with plans to address threats to the gray wolf, in a major revision of the gray wolf's listing in 1978. See Proposed Reclassification of the Gray Wolf in the United States and Mexico, With Proposed Critical Habitat in Michigan and Minnesota (" 1977 NPRM" ), 42 Fed.Reg. 29,527, 29,528 (June 9, 1977).

2. 1977-78: Listing Of Gray Wolves At Taxonomic Species Level

By 1977, the listing of gray wolves by subspecies had become " [un]satisfactory because the taxonomy of wolves [was] out of date, wolves may wander outside of recognized subspecific boundaries, and some wolves from unlisted subspecies may occur in certain parts of the lower 48 states." 1977 NPRM, 42 Fed.Reg. at 29,527. Although the gray wolf, Canis lupus, as a species, " formerly occurred in most of the conterminous United States and Mexico[,] [b]ecause of widespread habitat destruction and human persecution, the species now occupies only a small part of its original range in these regions." Id. In proposing to remove the four gray wolf subspecies from the List of Endangered and Threatened Wildlife and, instead, list the gray wolf at the higher taxonomic level of " species," the FWS " wishe[d] to recognize that the entire species Canis lupus is Endangered or Threatened to the south of Canada, and [FWS] considers that this

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matter can be handled most conveniently by listing only the species name." Id.

The FWS particularly focused on the eastern timber wolves in Minnesota in 1977, noting that the " original range of the subspecies . . . included most of the region from Georgia to Maine, and between the Atlantic and the Great Plains," and that range had been reduced to a single " substantial gray wolf population . . . in northern Minnesota." Id. at 29,528. The FWS acknowledged that the Minnesota wolf population had survived following its listing as endangered in 1967 " and it became apparent that the species was not in immediate danger of being extirpated in the State." Id. While " the Minnesota population . . . represent[ed] the last significant element of a species that once occupied a vastly larger range in the lower 48 States," the FWS noted that " long term trends may be working against the wolf." Id. at 29,528-29. Human-wolf conflicts appeared to be increasing as the wolves began to experience " an overall increase in range," with the result that " [s]ome wolves . . . entered areas with relatively extensive human settlement and made depredations on domestic animals." Id. at 29,528. The FWS proposed that the gray wolf be listed as " threatened" in Minnesota and as " endangered" at the species, rather than the subspecies, level in the other 47 conterminous states. Id.

The 1977 NPRM, which was adopted without substantial revision, see Reclassification of the Gray Wolf in the United States and Mexico, with Determination of Critical Habitat in Michigan and Minnesota (the " 1978 Rule" ), 43 Fed.Reg. 9607, 9608 (Mar. 9, 1978), met with considerable resistance from the State of Minnesota. For example, " [t]he Governor of Minnesota stated that the wolf in Minnesota should be classified neither as Endangered nor Threatened," because, inter alia, " the [ESA] regulations would not allow for adequate control of depredating wolves." Id. Similarly, the Minnesota legislature passed a resolution calling for complete declassification of the wolf in Minnesota," stating that

the wolf population had reached carrying capacity in many areas and was expanding into areas 'not heretofore inhabited'; hardship was resulting from wolf depredations; the State had adequate resources and authority to effectively manage the wolf; and the Legislature believed it best for the State to have exclusive control of its resident wolf population.

Id. Despite the resistance from Minnesota, the FWS concluded that the State's expressed concerns over wolf depredations, State resources, and State autonomy, were not among those " that may legally be considered in determining the classification of a species under the Endangered Species Act." Id. at 9608. The FWS further stated that " while it is recognized that the wolf may recently have increased its range in Minnesota, it is not entirely correct to say that the involved areas were 'not heretofore inhabited,' because at one time the wolf occupied the entire State." Id. Thus, even if the wolf had " reached carrying capacity in some parts of Minnesota," those " areas represent[ed] a comparatively small portion of the original range of the species, and population density alone will not assure long-term welfare." Id.

The FWS addressed the accusations that " a small interest group" improperly influenced the classification of the gray wolf in Minnesota, stating that, to the contrary, the proposed classification of the gray wolf at the species level was " an accurate classification and proper regulations [were] being established" to protect the gray wolf in Minnesota and the other 47 conterminous states. See

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id. at 9609. At the same time that Minnesota disagreed with any designation of the Minnesota population of wolves, certain environmental groups disagreed with FWS's classification of gray wolves in Minnesota as merely " threatened," rather than " a tiny and Endangered remnant of a former wide-ranging species." [7] Id. In response to this disagreement, the FWS indicated " that no matter how the Minnesota population is viewed, it, by itself, is more properly classified as Threatened." Id.

The FWS also addressed concerns about the impact of the reclassification on the management of different subspecies of gray wolves. For example, the United States Forest Service " requested assurance that biological subspecies would continue to be maintained and dealt with as separate entities." Id. at 9609. The FWS stated it could " give this assurance," without an explanation of the legal basis for such differential treatment. See id. Similarly, the North American Wolf Society posited that removing subspecies designations for gray wolves " could jeopardize efforts to locate and maintain stocks of the various subspecies," but the FWS offered " the firmest assurance that it will continue to recognize valid biological subspecies for purposes of its research and conservation programs." Id. at 9610.

Relying on the pre-1978 definition of " species" in the ESA, which did not contain the term " distinct population segment," the FWS found that, for the purposes of the listing, " the gray wolf ( Canis lupus ) group in Mexico and the 48 conterminous States of the United States, other than Minnesota, is being considered as one 'species', and the gray wolf group in Minnesota is being considered as another 'species.'" Id. In applying the five factors to determine whether the two species were endangered or threatened, as required by Section 4(a) of the ESA, the FWS explained, first, in considering " [t]he present or threatened destruction, modification, or curtailment of its habitat or range," that the Minnesota population of gray wolves " represent[ed] the last significant element of a species that once occupied a vastly larger range in the lower 48 States, and long-term trends may be working against the wolf." Id. at 9611. With respect to the second factor, " [o]verutilization for commercial, sporting, scientific, or educational purposes," the FWS found that " [d]irect killing by man . . . has been the major direct factor in the decline of wolves in the conterminous United States" and that " [w]olves still are regularly shot, especially when they appear in settled areas that are not part of their regular range. Illegal killing is a problem in Minnesota and other areas where the wolf still occurs." Id. With regard to the final three factors, the FWS cited the " confusing taxonomy of wolf subspecies" and the lack of non-federal protections in some states as evidence of the " inadequacy of existing regulatory mechanisms," while cautioning that the inability to kill wolves " that may be attacking livestock and pets" could be " creating an adverse public attitude toward the whole species." Id. The new classification took effect April 10, 1978. Id. at 9607.

After the reclassification of the gray wolf in 1978, the FWS re-affirmed the propriety of the species' listing status in 1989 and 1990 when considering and rejecting petitions to remove the gray wolf from the List of Endangered and Threatened Wildlife. See Notice of Finding on

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Petition to Delist the Gray Wolf (the " 1989 Petition" ), 54 Fed.Reg. 16,380, 16,380 (Apr. 24, 1989); Notice of Finding on a Petition to Delist the Gray Wolf (Canis lupus) (the " 1990 Petition" ), 55 Fed.Reg. 49,656, 49,656 (Nov. 30, 1990). The 1989 Petition, filed by a private citizen, argued that " wolves are in no danger of total extinction," citing a Minnesota wolf population of 1,500. 1989 Petition at 16,380. The FWS found that the citizen's " brief petition did not present any significant information bearing on the status" of the gray wolf and that " the best scientific and commercial information available to the Service indicates the goals of the gray wolf recovery plans have not been met and the present classification of the wolf is correct." Id.

The 1990 Petition, filed by the Farm Bureau Federations of Wyoming, Montana, and Idaho, took a different tack in challenging the 1978 listing decision for the gray wolf species. 1990 Petition at 49,656. This petition contended that " gray wolves are hybridizing with other canids, especially coyotes," and, consequently, " [t]he gray wolf is not a species, and thus is not eligible for listing and protection under the" ESA or, in the alternative, the FWS could not " distinguish 'pure' wolves from hybrid wolves so it is impossible to effectively carry out a program designed for the eventual recovery of the gray wolf." Id. After reviewing the references submitted by the Farm Bureau Federations and other scientific literature, the FWS found that populations of non-hybridized gray wolves did exist and that genetic evidence did not support the Farm Bureau Federations' arguments. Id. at 49,656-57. Moreover, the FWS pointed out that it was " not permitted to consider the probability of successfully recovering a species when making a decision to list or delist a species" and, therefore, that the ability to delineate " pure" wolves from hybrids was essentially irrelevant. Id. at 49,658. The FWS concluded that " [t]he best scientific and commercial data available support continued listing for the gray wolf." Id.

* * *

In sum, since the enactment of the first legislation to protect endangered species in 1966, all gray wolves in the lower 48 States have been brought under federal protection. Although the FWS initially listed subspecies of the gray wolf in a piecemeal fashion, by 1978 the agency had rejected that practice in favor of listing the gray wolf species, Canis lupus, as endangered in every conterminous State, except Minnesota, where it was separately listed as threatened. As described next, after listing the gray wolf at the species taxonomic level, the FWS took steps to recover the gray wolf in Minnesota and elsewhere, including with the 1992 Eastern Timber Wolf Recovery Plan, which figures prominently in the instant challenged Final Rule.

C. 1978-2000: General Recovery Efforts And The 1992 Recovery Plan

The ESA requires federal agencies to " seek to conserve endangered species and threatened species and . . . utilize their authorities in furtherance of the purposes of [the ESA]." 16 U.S.C. § 1531(c). Consistent with this statutory mandate, the FWS undertook significant efforts to recover the gray wolf, including reintroducing wolves to areas where they were previously abundant but had been extirpated. Such experimental populations were reintroduced into the Northern Rocky Mountain region, Establishment of a Nonessential Experimental Population of Gray Wolves in Central Idaho and Southwestern Montana, 59 Fed.Reg. 60,266, 60,266 (Nov. 22, 1994), and the Southwestern United States, Establishment of a Nonessential

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Experimental Population of the Mexican Gray Wolf in Arizona and New Mexico, 63 Fed.Reg. 1752, 1752 (Jan. 12, 1998), in the 1990s.

To assist in accomplishing these goals, the ESA requires DOI to " develop and implement plans," known as recovery plans, " for the conservation and survival of endangered species and threatened species." 16 U.S.C. § 1533(f)(1). Recovery plans must incorporate, inter alia, " a description of such site-specific management actions as may be necessary to achieve the plan's goal for the conservation and survival of the species," and " objective, measurable criteria which, when met, would result in a determination . . . that the species be removed from the list." Id. § 1533(f)(1)(B). An initial recovery plan for the eastern timber wolf was prepared and approved in 1978 and revised in 1992. See AR Ex. A (U.S. Fish and Wildlife Service, Recovery Plan for the Eastern Timber Wolf (1992) (the " Recovery Plan" )) at 2A, ECF No. 45-1. [8]

The Recovery Plan set out a " recovery objective" for the eastern timber wolf " subspecies" of " delisting." Recovery Plan at 5A. As of 1992, " [a] stable and growing population estimated at 1550 to 1750 wolves . . . exist[ed] in Minnesota," an additional " 45 to 60 wolves comprise[d] a second population in northern Wisconsin and the Upper Peninsula of Michigan," and an isolated population of " thirteen or fourteen wolves . . . [existed] in Isle Royale National Park, Michigan." Id. These wolves inhabited parts of Minnesota, Michigan, and Wisconsin, " about three percent of [their] original range," after formerly inhabiting " most of the eastern United States and southeastern Canada." Id. at 11A. The three states of Minnesota, Wisconsin, and Michigan (hereinafter " the Tri-State Area" ) were " believed" to have " sufficient suitable habitat . . . to achieve the recovery criteria." Id. at 5A.

To qualify as " recovered," the eastern timber wolf had to have " [a]t least two viable populations within the 48 [conterminous] United States," including a " stable or growing" Minnesota population and " a second population outside of Minnesota and Isle Royale . . . having at least 100 wolves in late winter if located within 100 miles of the Minnesota wolf population" or at least 200 wolves " if located beyond that distance." Id. The need for at least two populations was consistent with the " basic concept of conservation biology that a species can never be assumed to be secure from extinction if only a single population exists" since the " only satisfactory means of reducing the threat of extinction from an unexpected catastrophe is to ensure that more than a single population is established prior to declaring the species recovered." Id. at 25A. Moreover, " ideal multiple recovery populations should: (1) be completely separated from each other so as to eliminate the possibility of transmission of disease, parasites, etc. from one population to the other, thereby potentially transferring a catastrophe," while still being close enough to allow some exchange of genetic material. Id. at 25A-26A. The Recovery Plan considered the " immigration corridor between the Minnesota and Wisconsin/Michigan populations [to be] narrow," which would keep " the threat of disease transmission . . . at an acceptably low level" for a second viable population to be established in Wisconsin and Michigan apart from the Minnesota wolves. Id. at 26A.

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The Recovery Plan listed five factors as " critical to the long-term survival of the eastern timber wolf:"

(1) large tracts of wild land with low human densities and minimal accessibility by humans, (2) ecologically sound management, (3) availability of adequate wild prey, (4) adequate understanding of wolf ecology and management, and (5) maintenance of populations that are either free of, or resistant to, parasites and diseases new to wolves or are large enough to successfully contend with their adverse effects.

Id. at 17A. With respect to the first factor, maintaining tracts of wild land, the Recovery Plan noted that wolf packs generally range over twenty to 214 square miles and the Recovery Plan " estimated that a minimum of 4,000 to 5,000 square miles" with low road density and sparse human habitation was necessary to maintain a viable wolf population. Id. at 19A. Northeastern Minnesota was identified as " primary wolf range," and the southern, more populated portions of the State, was considered " peripheral range." See id. at 15A-16A.

The second factor, ecologically sound management, included providing " protection where needed to help restore the eastern timber wolf to areas of its original range and to preserve a naturally functioning population that can serve as a living museum, as a scientific subject, and as a reservoir to repopulate adjacent areas." Id. at 21A. Noting that wolves in Minnesota have " begun to colonize" portions of Minnesota even beyond the " peripheral range," including " a high proportion of intensively farmed areas" in the southern portion of the state, id. at 16A, the Recovery Plan expressed support for taking wolves when they stray into such areas, see id. at 21A (" Zone 5 [southern Minnesota] is not suitable for wolves. Wolves found there should be eliminated by any legal means." ).[9]

Regarding the third and fourth factors, the Recovery Plan suggested reintroduction of some prey species to the wolves' range, including the woodland caribou, and continuing public education efforts since " considerable misinformation still exists among several segments of the Minnesota and Michigan population," necessitating the continued provision of " concerted information and education." Id. at 23A. With respect to the final factor, the Recovery Plan briefly noted that since " the wolf's range has been reduced, parasites and diseases may become more significant mortality factors." Id. at 13A. In particular, the Recovery Plan noted that " over half of the variation in annual pup production and a third of the variation in wolf population change in the Superior National Forest" was caused by a single canine disease, canine parvovirus (" CPV" ). Id. Thus, " CPV could be important in limiting isolated or disjunct wolf populations such as those in Wisconsin and Michigan." Id. Indeed, the Recovery Plan cautioned that " [w]olf populations will be able to survive only if they are somehow able to contend with these new threats" from disease. Id. at 23A-24A. Nevertheless, the Recovery Plan cited scientific evidence that a wolf population can support " annual mortality of 28 percent to 50 percent" while remaining " healthy, productive wolf populations." Id. at 17A (internal citations omitted).

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To maintain the species post-recovery, i.e., post delisting, the Recovery Plan envisioned that certain regulations would remain in place in Minnesota, including a ban on the taking of wolves, except in circumstances of depredation control, in certain areas of the state and substantial efforts to improve the habitat of the wolves' prey. See id. at 28A. The Recovery Plan cautioned that " future circumstances are unpredictable and those that now exist could change drastically." Id. Consequently, the Recovery Plan advocated taking " [a] conservative approach . . . when one is dealing with threatened or endangered populations," such as the Minnesota wolves. Id. The Recovery Plan concluded that " it is important to explore all possibilities and to give the highest priority throughout this entire recovery plan to the biological and ecological considerations" because " [t]hey are the only ones that will be significant 100 years from now." Id. at 30A.

D. 2000 to Present: Attempts To Delist The Gray Wolf

Beginning in 2000, eight years after the last revision of the eastern timber wolf recovery plan, the FWS published a proposed rule " to change the classification of the gray wolf ( Canis lupus ) . . . [because] the species' current classification is no longer appropriate throughout most of its range." Proposal to Reclassify and Remove the Gray Wolf From the List of Endangered and Threatened Wildlife in Portion of the Conterminous United States; Proposal To Establish Three Special Regulations for Threatened Gray Wolves, 65 Fed.Reg. 43,450, 43,450 (July 13, 2000). The proposed rule touched off more than a decade of litigation over the appropriate classification of the gray wolf. See infra. Since the Final Rule at issue in this case is the latest chapter of that dispute, examination of the previous iterations of proposed classification changes, to which successful challenges were raised, is useful context for evaluating the current challenge.

1. The 2003 Rule

The proposed rule published in 2000 took effect on April 1, 2003. See Final Rule to Reclassify and Remove the Gray Wolf From the List of Endangered and Threatened Wildlife in Portions of the Conterminous United States; Establishment of Two Special Regulations for Threatened Gray Wolves (the " 2003 Rule" ), 68 Fed.Reg. 15,804, 15,804 (Apr. 1, 2003). The 2003 Rule divided the endangered gray wolf species into " three distinct population segments:" an Eastern DPS and Western DPS, in which gray wolves were reclassified as " threatened," and a Southwestern DPS, in which gray wolves remained endangered. Id. at 15,804. Regulations substantially similar to those in effect in Minnesota since 1978 regarding the taking of wolves were applied " to most of the Eastern DPS," the effect of which would have been to relax restrictions on the killing of wolves in those states. See id.; 1978 Rule, 43 Fed.Reg. at 9612-9615. In sixteen states, mainly in the southern and eastern portions of the United States, gray wolves were " removed from the protections of the [ESA] . . . where the species historically did not occur." 2003 Rule, 68 Fed.Reg. at 15,804. The FWS explained this part of the proposal, stating that the " 1978 listing of the gray wolf throughout the 48 States and Mexico was partially in error," thus justifying the delisting in those southern and eastern states. See id. at 15,859.

The 2003 Rule contained one significant change from its original proposal that is of particular relevance to the instant case. The agency had initially proposed to delist gray wolves outside the boundaries of the four proposed DPSs since the FWS had

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" no plans to restore gray wolves in those areas" and, in the agency's view, " there was no reason to maintain the [ESA's] protection for any gray wolves that might turn up there." Id. at 15,826. Based on " further analysis of the [ESA] and [its] implementing regulations," the FWS determined that its proposal was contrary to the ESA and the statutory requirements for delisting a " species." Id. Specifically, the agency noted that the ESA

does not provide for delisting a species in parts of its listed historical range because restoration of wolves in these areas is unnecessary, even if wolf recovery is proceeding successfully in other areas. Delisting can only occur when a species (or subspecies or DPS) is recovered, when it is extinct, or when the original data or analysis that led to the listing was in error.

Id. (emphasis added). The 2003 Rule was challenged as invalid under the ESA and the APA by environmental groups in two Federal district courts. Defenders of Wildlife v. Sec'y, U.S. Dep't of the Interior ( Oregon Wolves ), 354 F.Supp.2d 1156, 1158-59 (D. Or. 2005); Nat'l Wildlife Fed'n v. Norton ( Vermont Wolves ), 386 F.Supp.2d 553, 557 (D. Vt. 2005). Both courts sided with the plaintiffs and vacated the 2003 Rule, but for slightly different reasons. See Oregon Wolves, 354 F.Supp.2d at 1174 (enjoining and vacating 2003 Rule); Vermont Wolves, 386 F.Supp.2d at 568 (vacating and remanding 2003 Rule for reconsideration). These court decisions are discussed below.

a) The Oregon Wolves Challenge

In Oregon Wolves, the district court rejected the FWS's delisting of the wolves in the proposed Eastern DPS (comprising, roughly, the upper Midwest and the Northeastern United States) and Western DPS (comprising, roughly, the Rocky Mountain West and the Pacific Northwest) because the " justification for not considering threats to large areas of suitable habitat . . . [was] unreasonable." Oregon Wolves, 354 F.Supp.2d at 1168. The 2003 Rule acknowledged that viable wolf habitat existed within the historic range of the gray wolf, for instance, in Maine, New York, the Dakotas, and Washington, but the FWS considered that territory, which was not then-inhabited by gray wolves, to be " insignificant." See id. at 1167-68. The FWS reached that conclusion because gray wolves were not in danger of extinction within the core recovery areas in Minnesota, Michigan, and Wisconsin (for the proposed Eastern DPS) and in Idaho, Montana, and Wyoming (for the proposed Western DPS). See id. Consequently, in the FWS's view, since the gray wolf, as a species, would survive in the Tri-State Area and the Rocky Mountain West, any other suitable habitat in the gray wolf's historic range was " insignificant." Id. at 1168.

The Oregon Wolves court flatly rejected the agency's interpretation, stating that the FWS had limited " the phrase 'significant portion of [a species'] range'" in the definition of " endangered species" so much that, by definition, virtually any DPS that contained an area where a population of vertebrates lived would qualify for delisting. See id. at 1168-69. Such an " interpretation runs counter to Congressional intent," because the FWS's interpretation of " significant portion of [a species'] range" erroneously equated the gray wolf's " viability within the DPS," with the viability of the gray wolf at the species taxonomic level. See id. The Oregon Wolves court found that such a limitation " ignores the statutory modification [in the ESA] to protect species in 'any portion of its range.'" Id. at 1168. (quoting H.R. Rep. No. 93-412 (1973)) (emphasis in original). In effect, the Oregon Wolves court found that the

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FWS's interpretation turned the definition of " endangered species" on its head: rather than determining, as the ESA mandates, whether a species was threatened with extinction in any significant portion of its range, the FWS was determining whether a species was viable in any significant portion of its range and, if so, finding the rest of the species' historical range to be insignificant. See id.

In addition, the Oregon Wolves court found that the FWS had erroneously created large DPS designations that " encompass[ed] the wolf's entire historical range," rather than " drawing a line around the distinct populations in the Western Great Lakes and the Northern Rockies." Id. at 1171. The court observed that " the conservation status of populations within each DPS varies dramatically," which was an " inversion of" and " inconsistent with the [agency's] DPS Policy." Id. Since the DPSs were overbroad, the Oregon Wolves court found that the FWS failed to apply properly the five factors for listing evaluations found in the ESA to vast swathes of territory encompassed by the proposed DPSs, in violation of the statute. Id. at 1172. Even though the 2003 Rule would have only downlisted the gray wolf from " endangered" to " threatened" in two of the three DPSs, leaving the endangered listing unchanged in the third DPS, the Oregon Wolves court concluded that ...


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