386 F.Supp.2d 553 (D.Vt. 2005), 1 03-CV-340, National Wildlife Federation v. Norton

Docket Nº:1 03-CV-340
Citation:386 F.Supp.2d 553
Party Name:National Wildlife Federation v. Norton
Case Date:August 19, 2005
Court:United States District Courts, 2nd Circuit, District of Vermont

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386 F.Supp.2d 553 (D.Vt. 2005)

NATIONAL WILDLIFE FEDERATION, Vermont Natural Resources Council, Maine Wolf Coalition, Environmental Advocates of New York, and Maine Audubon Society, Plaintiffs,


Gale NORTON, Secretary of the Interior, United States Department of the Interior and Steven Williams, Director, United States Fish and Wildlife Service, Defendants.

No. 1:03-CV-340.

United States District Court, D. Vermont.

Aug. 19, 2005

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[Copyrighted Material Omitted]

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John Kostyack, Mary Randolph Sargent, National Wildlife Federation, Washington, DC, Julia LeMense Huff, Patrick A. Parenteau, Environmental and Natural Resources Law Clinic Vermont Law School,

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South Royalton, VT, Mark A. Sinclair, Conservation Law Foundation, Montpelier, VT, for Plaintiffs.

Joseph Robert Perella, Office of the United States Attorney District of Vermont, Burlington, VT, Kristen Gustafson, United States Department of Justice ENRD, Washington, DC, for Defendants.


MURTHA, District Judge.

In April 2003, the United States Fish and Wildlife Service ("FWS") issued its 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. 15804 (April 1, 2003) ("Final Rule"). In the Final Rule, the FWS reclassified the gray wolf under the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531-1544 (2000), from endangered to threatened in the newly created Eastern and Western Distinct Population Segments ("DPSs"). The third DPS, the Southwestern DPS, retains its endangered status.

Plaintiffs National Wildlife Federation, Vermont Natural Resources Council, Maine Wolf Coalition, Environmental Advocates of New York, and Maine Audubon Society, filed this action for declaratory and injunctive relief against defendants Gale Norton, in her official capacity as Secretary of the United States Department of the Interior, the United States Department of the Interior, and Steven Williams, Director of the United States Fish and Wildlife Service. 1 Plaintiffs claim defendants violated the ESA and the Administrative Procedure Act, 5 U.S.C. §§ 553-559; 701-706 (2000) ("APA").

The case is before this Court on the parties' cross motions for judgment 2 (Papers 27 and 33). For the reasons set forth below, plaintiffs' motion for judgment is GRANTED and defendants' motion for judgment is DENIED.



The Endangered Species Act is "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation." Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). 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). "The plain intent of Congress in enacting th[e] statute was to halt and reverse the trend toward species extinction, whatever the cost." Id. at 184, 98 S.Ct. 2279.

The ESA requires the Secretary to protect "species"--defined to include any subspecies of fish, wildlife, or plants, and any distinct population segment of any species of vertebrate fish or wildlife. Id. at § 1532(16). An endangered species is "in danger of extinction throughout all or a significant portion of its range." 16 U.S.C. § 1532(6). A threatened species is a "likely to become an endangered species within the foreseeable future throughout all or a

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significant portion of its range." Id. at § 1532(20).

The Secretary is charged with determining whether a species should be listed as threatened or endangered based upon five statutorily prescribed factors. 16 U.S.C. § 1533(a)(1) (collectively referred to as "listing factors"). 3 Each factor is equally important and a finding by the Secretary that a species is negatively affected by just one of the factors warrants a non-discretionary listing as either endangered or threatened. See 50 C.F.R. § 424.11(c). The same five factors are used to determine whether threats to the species have been diminished or removed to the point that downlisting or delisting is appropriate. The FWS shall make listing determinations "solely on the basis of the best scientific and commercial data available." 16 U.S.C.§ 1533(b)(1)(A).

The ESA makes it unlawful for any person to "take any [endangered] species within the United States." 16 U.S.C. § 1538(a)(1)(B). The term "take" means to kill, harass, hunt, wound, trap, capture, collect, or harm a species. 16 U.S.C. § 1532(19). Under ESA section 4(d), 16 U.S.C. § 1533(d), the FWS can adopt rules that allow the taking of threatened species under certain circumstances.

To fulfill its goals of species preservation, the ESA requires the Secretary to develop and implement recovery plans under its duty to conserve. 16 U.S.C. § 1533(f). Although the Act does not define "recovery," FWS has essentially defined the term to mean conservation, the use of "all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this [Act] are no longer necessary." Id. at § 1532(3); see also 50 C.F.R. § 402.02 (2003).


The gray wolf (Canis Lupus) is the largest wild member of the dog family, and is primarily a predator of medium and large animals. Final Rule at 15804. Gray wolves once ranged throughout most of North America, but human intolerance has extirpated, or destroyed, the gray wolf from over 95% of its historic range. Final Rule at 15805. The FWS first listed the gray wolf as endangered in 1967 pursuant to the Endangered Species Preservation Act of 1966, Pub.L. No. 89-669, §§ 1-3, 80 Stat. 926 (repealed 1973). In 1973, the year the Endangered Species Act was enacted, it is likely that only several hundred wolves remained. Id.

FWS's Proposed Rule designates four DPSs--a Western Great Lakes DPS, a Western DPS, a Northeastern DPS, and a Southwestern DPS--and downlists all of the DPSs except the Southwestern DPS from endangered to threatened. Factors cited in support of proposing the Northeastern DPS were the presence of potentially suitable, although isolated, wolf habitat in Maine, Vermont, New Hampshire, and New York, and the possibility that gray wolves might disperse from neighboring areas of Canada. Proposed Rule at 43456. The Proposed Rule requested public comment specifically on "the potential for recovery of gray wolves in the northeastern United States," and "[a]dditional information concerning the range, distribution, population size, and population

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trends" of gray wolves, generally. Id. at 43491.

The Final Rule changed the classification of the gray wolf under the ESA by creating three DPSs--an Eastern DPS, 4 a Western DPS, and a Southwestern DPS. The Final Rule reclassified gray wolves in the Eastern and Western DPSs from endangered to threatened but retained the gray wolf's status as an endangered species in the Southwestern DPS. Final Rule at 15857. Under the ESA's Section 4(d) rules, the Final Rule also permits "take" of depredating wolves by private parties in the Eastern and Western DPSs. Therefore, any wolf can be killed within one mile of the depredation site in Wisconsin and Michigan, and within 4 miles in the remaining states in the Eastern DPS. Final Rule at 15863-68.

In the Final Rule, the federal defendants state there exists a significant, continuing scientific debate concerning both the species and subspecies identity of the large canid that historically occupied New England, which may never have been the gray wolf. Final Rule at 15805; AR Doc. 967F at 14014.

Therefore, "in the absence of any evidence of a current gray wolf population in the Northeast, and in light of new doubts about whether the gray wolf historically occupied the Northeast, the FWS concluded, based upon its interpretation of the ESA and its DPS policy, that it could not finalize its proposal to designate a separate Northeastern DPS." Fed. Defs. Motion for Judgment (Paper 33 at 20); Final Rule at 15805-06. In light of defendants' findings, FWS formed the Eastern DPS by combining the Western Great Lakes DPS with the Northeastern DPS. Plaintiffs claim defendants' Final Rule violates the ESA and the APA because they: (1) failed to provide the public with adequate notice and opportunity for comment on the Eastern DPS; (2) designated DPSs that violate the Act; (3) arbitrarily determined that the gray wolf is not at risk in a significant portion of its range; and (4) failed to prepare a national recovery plan for the gray wolf as listed.



Plaintiffs consist of 5 environmental and conservation organizations seeking to protect the gray wolf. If an organization seeks to bring suit on behalf of its members, it must show that "(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). Requirement (1) of associational standing is met if "any one" of the association's members satisfies the Article III standing requirements. Plaintiffs meet the second and third prong of the representational standing requirements, and therefore, the Court will focus on the contested issue of Article III standing.

To satisfy the Constitution's Article III standing requirements, a party must show that he "(1)...

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