360 F.Supp.2d 1214 (D.Wyo. 2005), 04-CV-0123, Wyoming v. United States Dept. of Interior

Docket Nº:04-CV-0123-J, 04-CV-0253-J.
Citation:360 F.Supp.2d 1214
Party Name:State of WYOMING, Plaintiff, and Timothy J. Morrison, Marie A. Fontaine, and Tim A. French, in their official capacity as the Board of County Commissioners of the County of Park, State of Wyoming, Plaintiff-Intervenors, v. UNITED STATES DEPARTMENT OF THE INTERIOR; United States Fish & Wildlife Service; Gale Norton, in her capacity as the Secretary
Case Date:March 18, 2005
Court:United States District Courts, 10th Circuit, District of Wyoming
 
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360 F.Supp.2d 1214 (D.Wyo. 2005)

State of WYOMING, Plaintiff,

and

Timothy J. Morrison, Marie A. Fontaine, and Tim A. French, in their official capacity as the Board of County Commissioners of the County of Park, State of Wyoming, Plaintiff-Intervenors,

v.

UNITED STATES DEPARTMENT OF THE INTERIOR; United States Fish & Wildlife Service; Gale Norton, in her capacity as the Secretary of the United States Department of the Interior; Steven Williams, in his official capacity as the Director of the United States Fish & Wildlife Service, Defendants,

and

Greater Yellowstone Coalition, National Wildlife Federation, Jackson Hole Conservation Alliance, Predator Conservation Alliance, and Wyoming Outdoor Council, Defendant-Intervenors.

Wyoming Wool Growers Association; Wyoming Stock Growers Association; Wyoming Farm Bureau Federation; Wyoming Association of Conservation Districts; Rocky Mountain Farmers Union; Wyoming County Commissioners Association; Board of County Commissioners of the County of Campbell; Board of County Commissioners of the County of Lincoln; Board of County Commissioners of the County of Sublette; Board of County Commissioners of the County of Washakie; Wyoming Association of County Predatory Animal Boards; Fremont County Predatory Animal Board; Teton County Predatory Animal Board; Converse County Predatory Animal Board; Wyoming Outfitters & Guides Association; Green River Valley Cattlemen's Association; Upper Green River Cattle Association; Wyoming Business Alliance; Cody Country Outfitters and Guides Association; Foundation for North American Wild Sheep; Jackson Hole Outfitters and Guides; Rock Springs District 4 Grazing Board; Sportsmen for Fish & Wildlife, Wyoming; Sportsmen for Fish & Wildlife, Park County; Sportsmen for Fish & Wildlife, Teton County; Sportsmen for Fish & Wildlife, Lincoln County; and Sportsmen for Fish & Wildlife, Utah, Plaintiffs,

v.

United States Department Of The Interior; United States Fish & Wildlife Service; Gale Norton, in her capacity as the Secretary of the United States Department of the Interior; Steven Williams, in his official capacity as the Director of the United States Fish & Wildlife Service; Ralph Morgenweck, in his official capacity as the Regional Director of Region Six for the United States Fish & Wildlife Service Defendants,

and

Sierra Club and Natural Resources Defense Council, Defendant-Intervenors.

No. 04-CV-0123-J, 04-CV-0253-J.

United States District Court, D. Wyoming.

March 18, 2005

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Jay A. Jerde, Water & Natural Resources Division, Wyoming Attorney General's Office, Patrick Crank, Wyoming Attorney General, Cheyenne, WY, for Plaintiff(s) (04-CV-0123-J).

Harriet M. Hageman, Hageman & Brighton, Cheyenne, WY, for Plaintiff(s) (04-CV-253-J).

Bryan Skoric, Park County & Prosecuting Attorney, Cody, Jim F. Davis, Park County Attorney's Office, Powell, WY, for Plaintiff-Intervenors (04-CV-123-J).

Jimmy A. Rodriguez and Kristen L. Gustafson, Department of Justice, Environment & Natural Resources Division, Washington, D.C., for Federal Defendants (04-CV-123-J and 04-CV-253-J).

Jack Tuholske, Tuholske Law Office, Missoula, MT, for Intervenor-Defendants (04-CV-123-J).

Abigail M. Dillen and Douglas L. Honnold, Earthjustice Legal Defense, Bozeman, MT, Timothy C. Kingston, Graves, Miller & Kingston, Cheyenne, WY, for Intervenor-Defendants (04-CV-253-J).

MEMORANDUM OPINION AND ORDER

ALAN B. JOHNSON, Chief Judge.

The above-entitled matter comes before the Court on plaintiffs State of Wyoming,

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et al.'s Opening Briefs. The Court, having reviewed the briefs, administrative record and materials filed in support thereof and in opposition thereto, having heard oral arguments on February 4, 2005, and being otherwise fully advised in the premises, FINDS and ORDERS as follows:

Factual and Procedural Background

By the early 1900s the demographic collapse of the gray wolf in the western portion of the United States was at its apex. Nearly the entire population of gray wolves had disappeared. The near extermination of the gray wolf had many causes, including westward expansion of the population of the United States, rampant hunting and anti-wolf government policies. 1 It is generally accepted that the cause of the wolf's demise in the coterminous United States was a direct result of human depredation.

In 1973, United States Fish and Wildlife Services (FWS) listed the Northern Rocky Mountain Wolf ( Canis lupus irremotus) as an endangered species pursuant to its authority under the Endangered Species Act, 16 U.S.C. §§ 1531, et seq. (ESA). In 1978, the Secretary revised the gray wolf listing to include the entire species canus lupus. 43 Fed.Reg. 9,607 (March 9, 1978). In 1980 the FWS developed a plan (the Recovery Plan) to recover the gray wolf population in the northern Rocky Mountain area, encompassing Yellowstone Park north to the Canadian border, including areas of central Idaho. The Recovery Plan envisioned gray wolf reintroduction in Yellowstone National Park. The goal of the Recovery Plan was to coordinate recovery of two viable gray wolf populations in the lower forty-eight states. No action was taken on this plan.

In 1982 Congress amended the ESA to include Section 10(j). 2 This section of the ESA authorizes the Secretary of the Interior to relocate and "release...any population...of an endangered species or a threatened species outside the current range of such species if the Secretary determines that such a release will further the conservation of such species." 16 U.S.C. § 1539(j)(2)(A). Before any authorization of a release of an endangered species the Secretary must determine if the released population "is essential to the continued existence of an endangered species or a threatened species." 16 U.S.C. § 1539(j)(2)(B).

In 1987, FWS revised the 1980 Recovery Plan (the Revised Plan). In the Revised Plan the FWS proposed steps to remove the gray wolf from the endangered and threatened species list. The Revised Plan covered three major geographic areas: northwest Montana, central Idaho, and the Greater Yellowstone Area. The Revised Plan further recommended the introduction of at least ten breeding pairs of gray wolves for three consecutive years into those areas. The Revised Plan proposed a metric by which the Recovery Plan could be evaluated as a success, namely the establishment of 10 breeding pairs of wolves for at least three years in the three outlined recovery areas. The Revised Plan also recommended that once the gray wolf population recovered, the recovery area should be split into three management zones to be administered by the respective states, Montana, Idaho and Wyoming.

In 1991, based on the Revised Plan, Congress directed the FWS, in cooperation with the National Park Service and the United States Forest Service, to prepare

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an environmental impact statement discussing the impact of introducing gray wolf populations into Yellowstone Park and central Idaho, in accordance with the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (NEPA). See 42 U.S.C. § 4332(C)(i). On May 4, 1994, FWS filed the final environmental impact statement (FEIS) regarding the reintroduction of gray wolf populations into the two recovery areas. No supplemental environmental impact statement was filed. 3

In November 1994, the United States Department of Interior (Interior) promulgated a rule, 50 C.F.R. § 17.84(i)(the Final Rule), authorizing the introduction of experimental, non-essential gray wolf populations into Yellowstone Park and central Idaho. The term non-essential refers to the fact that the released population was not essential to the survival of the species as a whole. Two reintroduction areas were specified in the Code of Federal Regulations. See Figure 1. Management of the reintroduced gray wolf populations is controlled under 50 C.F.R. § 17.84(i). This section provides a comprehensive management strategy regarding the reintroduced gray wolves. Included in the regulation are rules regarding controlling gray wolves that attack or deprecate livestock and the wild ungulate population. 4 See 50 C.F.R. §§ 17.84(i)(3),(7), and (8). The management plan provides for both self-help management of wolf depredation, federal agency action, and action by the states and affected tribes. The self-help provisions refer to livestock producers on both public lands and private lands, and approves methods for the harassment and taking of gray wolves that are depredating livestock.

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In 1995, the FWS began the reintroduction of the gray wolf into Yellowstone Park and the surrounding environs. The FWS' initial release included fourteen western Canadian gray wolves. FWS released seventeen additional western Canadian gray wolves one year later. 5 Concomitant with

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the reintroduction of the gray wolves, the FWS announced that the gray wolf would be a candidate for delisting or downlisting when the population met or exceeded the recovery goals outlined in their Revised Plan. See 50 C.F.R. § 17.84(i)(9). In fact, in 2003 the FWS down listed the gray wolf within the western Distinct Population Segment (DPS) from endangered to threatened. See 68 Fed.Reg. 15,806-15,875. The FWS, looking to the eventual delisting of the gray wolf in light of its remarkable recovery, requested that Idaho, Montana and Wyoming each develop a wolf management plan that would assure further success and advance the goals of the Revised Plan and comport with the ESA's mandates regarding the delisting of the gray wolf and the existence of a sustainable gray wolf population. See 16 U.S.C. § 1533(a)(1). To this end, each state began to develop a wolf management plan. This process included input and suggestions from FWS along the way. 6

On July 16, 2002, FWS sent a letter...

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