354 F.Supp.2d 1156 (D.Or. 2005), Civ. 03-1348, Defenders of Wildlife v. Secretary, United States Department of the Interior

Docket Nº:Civ. 03-1348-JO.
Citation:354 F.Supp.2d 1156
Party Name:DEFENDERS OF WILDLIFE; et al., Plaintiffs, v. SECRETARY, UNITED STATES DEPARTMENT OF THE INTERIOR; et al., Defendants.
Case Date:January 31, 2005
Court:United States District Courts, 9th Circuit, District of Oregon
 
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354 F.Supp.2d 1156 (D.Or. 2005)

DEFENDERS OF WILDLIFE; et al., Plaintiffs,

v.

SECRETARY, UNITED STATES DEPARTMENT OF THE INTERIOR; et al., Defendants.

No. Civ. 03-1348-JO.

United States District Court, D. Oregon.

Jan. 31, 2005

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[Copyrighted Material Omitted]

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Anne E. Mahle, Brian B. O'Neill, Elizabeth H. Schmiesing, Richard A. Duncan, Colette Routel, Faegre & Benson, LLP, Minneapolis, MN, Stephanie M. Parent, Portland, OR, for Plaintiffs.

Kristen L. Gustafson, Wildlife & Marine Resources Section, Environment & Natural Resources Division, U.S. Department of Justice, Ben Franklin Station, Washington, DC, Jimmy A. Rodriguez, U.S. Department of Justice, Ben Franklin Station, Washington, DC, Jay A. Jerde, Michael R. O'Donnell, State of Wyoming, Attorney General's Office, Cheyenne WY, Suzanne C. Lacampagne, Miller Nash, Portland, OR, Anna M. Seidman, Safari Club International, Washington, DC, Elizabeth E. Howard, Churchill Leonard Lodine & Hendrie, LLP, Salem, OR, Steven W. Strack, Idaho Attorney General's Office, Boise, ID, David A. Bledsoe, Perkins Coie, LLP, Portland, OR, David F. Hensley, Governor's Office of Species Conser, Boise, ID, L. Michael Bogert, Office of the Governor, Boise, ID, Martha Williams, Robert N. Lane, Montana Department of Fish, Wildlife, Helena, MT, for Defendants.

OPINION AND ORDER

ROBERT E. JONES, District Judge.

INTRODUCTION

On April 1, 2003, the United States Fish and Wildlife Service ("FWS") issued the Final Rule to Reclassify and Remove the Gray Wolf from the List of Endangered and Threatened Wildlife in Portions of the Conterminous United States, 68 Fed.Reg. 15,804 (April 1, 2003) ("Final Rule"). The Final Rule reduced the protection afforded to the gray wolf under the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531-1543, by changing the status of the species from "endangered" to "threatened" in some regions. Plaintiffs Defenders of Wildlife et al. filed this action for declaratory and injunctive relief against Defendant Gail Norton, in her official capacity as Secretary of the United States Department of Interior ("Secretary"), alleging that this change violated the ESA, the

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ESA's implementing regulations, and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551-59, 701-706. The States of Idaho, Montana, and Wyoming, and various non-governmental interest groups intervened as defendants. 1 Plaintiffs seek injunctive relief that would remand the Final Rule to the FWS for reconsideration.

Before the Final Rule, the gray wolf was listed as "endangered" across the conterminous United States, except Minnesota where it was listed as "threatened." The Final Rule creates three Distinct Population Segments ("DPSs")--Eastern, Western, and Southwestern--and reclassifies, or "downlists," the gray wolf from "endangered" to "threatened" in the Eastern and Western DPSs. The gray wolf remains "endangered" in the Southwestern DPS. Plaintiffs claim that FWS violated the ESA because it: 1) failed to assess threats to the wolf in a significant portion of its range, 2) improperly applied the five statutory factors for downlisting, 3) improperly based its decision to downlist on factors Congress did not intend for it to consider, 4) designated DPSs that violate the Act, and 5) abandoned its affirmative duty under the ESA to conserve the wolf.

This case is before the court on the parties' cross motions for summary judgment (Ë 105, 107, 110, 112, 124, and 127). For the reasons discussed below, I GRANT plaintiffs' motion for summary judgment and DENY defendants' motions for summary judgment.

STATUTORY FRAMEWORK

Congress enacted the ESA 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...." 16 U.S.C. § 1531(b). A species receives the protections of the ESA when FWS lists the species as "endangered" or "threatened." A species is "endangered" when it is "in danger of extinction throughout all or a significant portion of its range...." Id. at § 1532(6). A "threatened" species "is likely to become an endangered species within the foreseeable future...." Id. at § 1532(20). FWS shall list a species as endangered or threatened because of any one or a combination of the following factors: "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." Id. at § 1533(a)(1); 50 C.F.R. § 424.11(c). The FWS shall make listing determinations "solely on the basis of the best scientific and commercial data available," without reference to the possible economic or other impacts of such a determination. 16 U.S.C. § 1533(b)(1)(A), 50 C.F.R. § 424.11(c). FWS applies these same five "listing factors" to determine whether threats to a species have decreased enough to warrant downlisting. 50 C.F.R. § 424.11(c). Therefore, in order to downlist a species or DPS, the Secretary must use the listing factors to assess the threats to the species or DPS.

It is unlawful for any person to "take any [endangered] species within the United States." 16 U.S.C. § 1538(a)(1)(B). The Act defines "take" very broadly to include kill, harass, or harm. Id. at § 1532(19). Regulations generally ban the take of threatened species, but the FWS can adopt rules under ESA section 4(d), 16 U.S.C. § 1533(d), that allow the take of

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threatened species under certain circumstances. 2 These so-called "4(d) rules" are important to this case because the Final Rule contains 4(d) rules that permit the take of depredating wolves by private parties. 3 68 Fed.Reg. at 15,863-68.

The ESA instructs the Secretary to develop and implement plans known as "recovery plans" for the conservation and survival of endangered and threatened species. 16 U.S.C. § 1533(f)(1). The recovery plans shall include "objective, measurable criteria which, when met, would result in a determination, in accordance with the provisions of this section, that the species be removed from the list." Id. "[P]rovisions of this section" includes the listing factors. "Recovery" means improvement in the status of a listed species to the point at which listing is no longer appropriate under the criteria set out in ESA section 4(a)(1), 16 U.S.C. § 1533(a)(1). 50 C.F.R. § 402.02.

The term "species" "includes any subspecies of fish or wildlife or plants, and any distinct population segment...." 16 U.S.C. § 1532(16). Because the ESA does not define the term "distinct population segment," the FWS and National Marine Fisheries Service promulgated regulations (the "DPS Policy") in 1996 to guide the agency in recognizing DPSs that satisfy the definition of "species" under the Act. 61 Fed.Reg. 4722 (Feb. 7, 1996). The DPS Policy provides that a DPS must be discrete and significant in relation to the species to which it belongs. Id. at 4725. FWS determines the listing status of each DPS by applying the listing factors. Id. The purpose of the DPS Policy is to allow FWS to list a DPS as threatened or endangered, and thereby provide a level of protection that is different from other populations within the same species. See Id. at 4722. "The FWS does not have to list an entire species as endangered when only one of its populations faces extinction." Nat'l Ass'n of Home Builders v. Norton, 340 F.3d 835, 842 (9th Cir. 2003).

BACKGROUND

The gray wolf (Canis lupus) is a social animal that preys primarily on large mammals. 68 Fed.Reg. at 15,805. Extended families comprise packs that occupy 50 to 500 square kilometers of territory. Id. Most yearling wolves disperse from their natal packs to find a mate and unoccupied territory. Id.

A. Range.

Historically, the gray wolf occupied all of the conterminous United States, 4 except

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arid regions of California and the southeastern United States ("Southeast"). The Southeast contains a different species, the red wolf (Canis rufus). Id. at 15,806. European settlers extirpated the gray wolf from most of the conterminous United States. By the early 1970s, northern Minnesota held the only substantial wolf population. Id. at 15,805.

In 1974, FWS listed the gray wolf as threatened in Minnesota and endangered in the forty-seven other conterminous states and Mexico. 5 Joint Statement of Material Fact ("JSMF") ¶ 11. Since the listing, the gray wolf has increased its population and range. Wolves that dispersed from Minnesota recolonized parts of northern Wisconsin and northern Michigan to form a Western Great Lakes metapopulation. Recent surveys reported 2445 wolves in Minnesota, 323-339 wolves in Wisconsin, and 278 wolves in Michigan. Id. at pp 75, 83, 86-87. A few wolves have dispersed from the Western Great Lakes population to North Dakota, South Dakota, Illinois, and Missouri. 68 Fed.Reg. at 15,814. FWS has determined that these dispersing wolves are unlikely to contribute to overall wolf recovery unless they return to a core recovery population and join or start a pack. Id. at 15,814-15.

In the northeastern United States ("Northeast"), FWS documented wolves of unknown origin in Vermont and Maine, but no known breeding populations. Id. at 15,814. In 2002, an "apparent wolf" was trapped in southern Quebec, twenty miles from the New Hampshire border. Id. at 15,814. FWS stated that there is suitable wolf habitat in New York and "expansive wolf habitat in Maine and New Hampshire," but substantial barriers, such as the St. Lawrence River, a highway, and dense human development, will hinder dispersal from Canada. Id.

In 1995 and 1996, FWS reintroduced wolves to the northern Rocky Mountains ("Northern Rockies"--parts of Montana, Idaho, and Wyoming) by...

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