279 F.3d 1214 (10th Cir. 2002), 99-8089, State Of Wyoming v. United States

Docket Nº:99-8089
Citation:279 F.3d 1214
Party Name:STATE OF WYOMING; WYOMING GOVERNOR, in his official capacity, a.k.a. Jim Geringer, Plaintiffs-Appellants, v. UNITED STATES OF AMERICA; GALE A. NORTON, in her official capacity as Secretary of the United States Department of the Interior, Defendants-Appellees, and JACKSON HOLE CONSERVATION ALLIANCE; GREATER YELLOWSTONE COALITION; WILDERNESS SOCIETY,
Case Date:February 07, 2002
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1214

279 F.3d 1214 (10th Cir. 2002)

STATE OF WYOMING; WYOMING GOVERNOR, in his official capacity, a.k.a. Jim Geringer, Plaintiffs-Appellants,

v.

UNITED STATES OF AMERICA; GALE A. NORTON, in her official capacity as Secretary of the United States Department of the Interior, Defendants-Appellees, and JACKSON HOLE CONSERVATION ALLIANCE; GREATER YELLOWSTONE COALITION; WILDERNESS SOCIETY, Intervenors-Appellees. INTERNATIONAL ASSOCIATION OF FISH AND WILDLIFE AGENCIES, Amicus Curiae.

No. 99-8089

United States Court of Appeals, Tenth Circuit

February 7, 2002

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Lynda G. Cook, Assistant Attorney General (Gay Woodhouse, Attorney General, and Michael Dinnerstein, Assistant Attorney General, with her on the brief), Cheyenne, Wyoming, for Plantiffs-Appellants.

Lisa E. Jones, Department of Justice (Lois J. Schiffer, Assistant Attorney General, Page 1218

Environment & Natural Resource Division, Department of Justice; Charles R. Shockey and Andrew C. Mergen, Department of Justice, Washington, D.C.; David D. Freudenthal, United States Attorney, and Carol A. Statkus, Assistant United States Attorney, Cheyenne, Wyoming; and Debra Hecox, of Counsel, Office of the Regional Solicitor, Department of the Interior, Lakewood, Colorado, with her on the brief), Washington, D.C., for Defendants-Appellees.

James S. Angell, Earthjustice Legal Defense Fund, Bozeman, Montana, for Intervenors-Appellees.

Paul A. Lenzini of Donelan, Cleary, Wood & Maser, P.C., Washington, D.C., filed an Amicus Curiae brief on behalf of International Association of Fish and Wildlife Agencies in Support of Plaintiffs-Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING

(D.C. No. 98-CV-37-B) , (61 F.Supp.2d 1209)

Before LUCERO, POLITZ,[x] and BALDOCK, Circuit Judges.

BALDOCK, Circuit Judge.

Once again a federal court is called upon to unravel a congressionally-legislated Federal-State standoff. The National Elk Refuge (NER), a part of the National Wildlife Refuge System (NWRS), encompasses approximately 24,700 acres of wilderness north of Jackson Hole, Wyoming, in the greater Yellowstone area.1 Brucellosis, a serious disease that causes miscarriage, is endemic to free-ranging elk in the greater Yellowstone area and a threat to Wyoming's domestic cattle industry. Plaintiff State of Wyoming and the United States Fish and Wildlife Service (FWS), a division of the United States Department of the Interior (USDI), disagree over how best to manage brucellosis on the NER. Specifically, the State challenges the FWS's refusal to permit the State to vaccinate elk on the NER with a brucellosis vaccine known as "Strain 19." According to the FWS, after several years of research and study, the biosafety and efficacy of Strain 19 vis-a-vis elk remain unproven. The State disagrees.

Resolution of this matter ultimately rests upon our construction of the National Wildlife Refuge System Improvement Act of 1997 (NWRSIA), Pub. L. No. 105-57, 111 Stat. 1252-1260 (codified at 16 U.S.C. § § 668dd-668ee) (as amended) (amending the National Wildlife Refuge System Administration Act of 1966 (NWRSAA), Pub. L. No. 89-669, 80 Stat. 926-930 (as amended)). Unfortunately, the NWRSIA does not (nor does any federal law) directly address the problem of brucellosis in wildlife, or establish clear priority between wildlife and domestic livestock when interests involving the two conflict. In the jurisdictionally-fragmented Yellowstone area, however, one thing is certain: Wildlife management policies affecting the interests of multiple sovereigns demand a high degree of intergovernmental cooperation. Such cooperation is conspicuously absent in this case.

I.

Brucellosis is a disease caused by Brucella abortus, a bacterial borne pathogen Page 1219

which infects the reproductive organs and lymphatic systems of ungulates.2 Brucellosis most often produces spontaneous abortion in female ungulates during the first pregnancy following infection. A small percentage of infected ungulates may develop inflamed joints resulting in arthritis and lameness. The disease also may produce sterility in infected males. Research has shown that female ungulates are largely responsible for the spread of brucellosis to other susceptible hosts. Aborted fetuses, vaginal fluids, newborn young, birth byproducts, and milk from infected females all are contaminated with the Brucella bacteria. The disease spreads most commonly when ungulates consume infected tissue or contaminated feed or water. See B. Smith & T. Roffe, A Political Disease: Brucellosis, Bugle: The Quarterly Journal of the Rocky Mountain Elk Foundation, Summer 1992, at 71-74.3

Authorities first detected brucellosis in elk in the greater Yellowstone area around 1930. Today, brucellosis infects approximately thirty percent of the elk in western Wyoming. Thus, significant levels of brucellosis still occur in the feed ground elk population on the NER. See R. Keiter & P. Froelicher, Bison, Brucellosis, and Law in the Greater Yellowstone Ecosystem, 28 Land & Water L. Rev. 1, 18, 27 (1993). Experts estimate that the annual elk calf loss due to brucellosis-related abortions on the NER is seven percent of the calf crop. See Smith & Roffe, supra, at 76.

The concentration of free-ranging elk herds on Wyoming and NER winter feed grounds appears to perpetuate brucellosis. The feed grounds, which host around 25,000 elk each winter, are prime locations for the transmission of brucellosis because the herds are in close contact during the critical birthing period. See id. at 73, 79. Because natural winter habitat in the region is not adequate to sustain the elk herds at their current numbers, closing the feed grounds would foster competition, which appears to increase the risk of brucellosis transmission. See Keiter & Froelicher, supra, at 60-61.

The primary significance of brucellosis-related abortions in Wyoming's elk herds is the potential for transmission of the disease to domestic cattle. Elk and other wildlife in the greater Yellowstone area do not respect jurisdictional boundaries. Instead, wildlife wanders freely across the region's public and private lands. Experts explain that the creation of artificial barriers to separate domestic cattle from wild elk is not feasible:

Natural barriers to prevent commingling of wildlife and cattle do not exist, and artificial barriers, such as fences, have many drawbacks. Wildlife-proof fences, if effective, would interfere with traditional movement and migration routes of elk, bison and other species. The intensive and expensive maintenance required for such a program--and the fidelity Page 1220

of elk and bison to traditional ranges--ensure that this would fail.

Smith & Roffe, supra, at 78.

No documented cases of elk infecting domestic cattle with brucellosis under natural conditions exist. But see Parker Land and Cattle Co. v. United States, 796 F.Supp. 477, 488 (D. Wyo. 1992) (concluding that a brucellosis outbreak in Wyoming cattle "was most likely caused by contact with infected elk or bison, as those are the only two known sources of the disease in the entire State of Wyoming"). Scientists at Texas A&M University, however, have transmitted brucellosis from elk to cattle in confined conditions. Thus, the impetus behind Wyoming's desire to eradicate brucellosis in elk is the potential for economic loss to its domestic cattle industry. Experts estimate that from 1951 to 1981, brucellosis cost the nation's cattle industry $1.6 billion. See Smith & Roffe, supra, at 72-76. Another estimate places that cost at $100 million annually. See Keiter & Froelicher, supra, at 9.

Despite disagreement over how effective the Strain 19 vaccine is in immunizing elk from brucellosis, experts agree that vaccinating cattle with Strain 19 plays an important role, together with test-and-removal of infected animals, in eradicating brucellosis from cattle herds. The vaccine, which has been in use in the cattle industry for several decades, provides approximately seventy percent protection against abortion in vaccinated cattle. Subject to the State's ongoing program of vaccination, and test-and-removal, the National Cooperative Brucellosis Eradication Program of the United States Department of Agriculture (USDA) certified the State of Wyoming's cattle industry as brucellosis-free in 1985. See Smith and Roffe, supra, at 74, 77.4

That same year, the State began vaccinating elk with Strain 19 on state feed grounds, apparently with some success. By the early 1990's, Wyoming reported that its vaccination program had resulted in a seventy percent calving success rate for vaccinated elk, as compared to a thirty percent calving success rate for unvaccinated elk. See Keiter & Froelicher, supra, at 30 n.199. By 1998, the State was vaccinating elk on twenty-one of twenty-two state feed grounds without notable adverse consequence. See Aplt's App. at 187. Since 1985, however, at least four documented incidents of brucellosis in Wyoming cattle have occurred. The source of the disease in these cases remains unidentified. See Smith and Roffe, supra, at 74; see also Parker Land and Cattle Co, 796 F.Supp. at 481-92 (describing 1988 brucellosis outbreak on the Parker ranch).

The USDA's revocation of Wyoming's brucellosis-free status would negatively impact the State's cattle industry by significantly (1) increasing costs to the State and Page 1221

its producers, and (2) limiting access to interstate and international markets. See Support for the Greater Yellowstone Interagency Brucellosis Committee, Western Governor's Ass'n. Res. 00-027 (June 13, 2000); see also Fund for Animals, Inc., v. Lujan, 962 F.2d 1391, 1401-02 (9th Cir. 1992)...

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