565 F.Supp.2d 1160 (D.Mont. 2008), CV 08-56, Defenders of Wildlife v. Hall

Docket Nº:CV 08-56-M-DWM.
Citation:565 F.Supp.2d 1160
Party Name:Missoula Division. DEFENDERS OF WILDLIFE, Natural Resources Defense Council, Sierra Club, Humane Society of the United States, Center for Biological Diversity, Jackson Hole Conservation Alliance, Friends of the Clearwater, Alliance for the Wild Rockies, Oregon Wild, Cascadia Wildlands Project, Western Watersheds Project, and Wildlands Project, Plai
Case Date:July 18, 2008
Court:United States District Courts, 9th Circuit, District of Montana
 
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Page 1160

565 F.Supp.2d 1160 (D.Mont. 2008)

Missoula Division.

DEFENDERS OF WILDLIFE, Natural Resources Defense Council, Sierra Club, Humane Society of the United States, Center for Biological Diversity, Jackson Hole Conservation Alliance, Friends of the Clearwater, Alliance for the Wild Rockies, Oregon Wild, Cascadia Wildlands Project, Western Watersheds Project, and Wildlands Project, Plaintiffs,

v.

H. Dale HALL, U.S. Fish and Wildlife Service Director; Dirk Kempthorne, Secretary of the Interior; and United States Fish and Wildlife Service, Defendants.

and Safari Club International; Safari Club International Foundation; The National Rifle Association of America; State of Montana; Montana Department of Fish, Wildlife, and Parks; State of Idaho; Governor C.L. “Butch" Otter; Idaho Fish and Game Commission; Idaho Department of Fish and Game; Idaho Office of Species Conservation; State of Wyoming; Sportsmen for Fish and Wildlife; Montana Stockgrowers Association, Inc.; Montana Farm Bureau Federation; Western Montana Fish and Game Association, Inc.; Montana Shooting Sports Association, Inc.; Friends of the Northern Yellowstone Elk Herd; Wyoming Stock Growers Association, Inc., Defendant-Intervenors.

No. CV 08-56-M-DWM.

United States District Court, D. Montana.

July 18, 2008

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[Copyrighted Material Omitted]

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Douglas L. Honnold, Jenny K. Harbine, Timothy J. Preso, Earthjustice Legal Defense Fund, Bozeman, MT, for Plaintiffs.

Kristen Lyn Gustafson, Lisa Lynne Russell, U.S. Department of Justice-Wildlife & Marine Resources, Benjamin Franklin Station, Washington, DC, for Defendants.

Clay R. Smith, Idaho Attorney General's Office, David F. Hensley, Office of the Governor, Steven W. Strack, State of Idaho, Thomas C. Perry, Species Conservation, Paul A. Turcke, Moore Smith Buxton & Turcke, Boise, ID, James David Johnson, Williams Law Firm, W. Carl Mendenhall, Worden Thane P.C., Missoula, MT, Jay A. Jerde, Cheyenne, WY, Jeffrey M. Hindoien, Robert Thomas Cameron, Gough, Shanahan, Johnson & Waterman, Martha M. Williams, Robert N. Lane, Montana Fish Wildlife and Parks, Mike McGrath, Office of the Montana Attorney General, Abigail J. St. Lawrence, James Edward Brown, John E. Bloomquist, Doney Crowley Bloomquist Payne Uda P.C., Helena, MT, Anna M. Seidman, Attorney at Law, Washington, DC, for Defendant-Intervenors.

ORDER

DONALD W. MOLLOY, District Judge.

I. Introduction

This case, like a cloud larger than a man's hand, will hang over the northwest states of Montana, Idaho, and Wyoming until there has been a final determination of the complex issues presented. Those issues must be answered in accordance with the intent of Congress as stated in the Endangered Species Act and its implementing regulations. Here, Plaintiffs challenge the U.S. Fish & Wildlife Service's decision to designate and delist a northern Rocky Mountain gray wolf distinct population segment under the Endangered Species Act (“ESA" ), 16 U.S.C. § 1536. In seeking to alter the course of that decision, Plaintiffs move for a preliminary injunction.

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They ask the Court to reinstate ESA protections for the wolf, at least while this lawsuit is pending. In support of their motion, Plaintiffs argue (1) even though the environmental impact statement on wolf reintroduction specifically conditions the delisting decision on a Finding of Subpopulation Genetic Exchange, the Fish & Wildlife Service delisted the wolf when there is no plausible showing of that genetic exchange between the Greater Yellowstone core recovery area and the northwestern Montana and central Idaho core recovery areas; (2) the Service approved Wyoming's 2007 wolf management plan even though the Wyoming plan still contains provisions that the Service earlier deemed inadequate; and (3) the Fish & Wildlife Service did not consider the several states' liberal defense of property laws in concluding the states' wolf management plans were adequate. The argument concludes with the claim that a preliminary injunction is necessary because wolves are not likely to survive the increased incidents of human-caused mortality that will occur under state management.

In my view, Plaintiffs are likely to succeed on the majority of the claims relied upon in their request for a preliminary injunction. In particular, (1) the Fish & Wildlife Service acted arbitrarily in delisting the wolf despite a lack of evidence of genetic exchange between subpopulations; and (2) it acted arbitrarily and capriciously when it approved Wyoming's 2007 plan despite the State's failure to commit to managing for 15 breeding pairs and the plan's malleable trophy game area. In both instances, the Fish & Wildlife Service altered its earlier position without providing a reasoned decision for the change based on identified new information.

As recently as 2002, the Service determined genetic exchange between wolves in the Greater Yellowstone, northwestern Montana, and central Idaho core recovery areas was necessary to maintain a viable northern Rocky Mountain wolf population in the face of environmental variability and stochastic events. The Fish & Wildlife Service nevertheless delisted the wolf without any evidence of genetic exchange between wolves in the Greater Yellowstone core recovery area and the other two core recovery areas. To justify its decision, the Service relied on the same information that was available to it when it determined genetic exchange was necessary in 2002.

In 2004, the Fish & Wildlife Service rejected Wyoming's 2003 wolf management plan. The Service determined the 2003 plan was inadequate to protect wolves because it permitted Wyoming state officials to classify the wolf as a predatory animal throughout the state and then failed to clearly commit the state to managing for 15 breeding pairs within its borders. Before delisting the wolf, the Fish & Wildlife Service approved Wyoming's revised 2007 plan. This revised plan suffers from the same deficiencies as the 2003 plan: it classifies the wolf as a predatory animal in almost 90 percent of the state and only commits the state to managing for 7 breeding pairs outside the national parks. In supporting its decision to approve Wyoming's 2007 plan, the Service does not offer any information not available to it when it rejected the 2003 plan. Armed with the same information, the agency flip-flopped without explanation. While the Fish & Wildlife Service can change its recovery criteria, it must nevertheless provide a reasoned analysis for the change of position and if it does so, its decision is entitled to deference. The Service has failed to do so here. Thus, in my view, Plaintiffs are likely to succeed on several of their claims.

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Plaintiffs have also shown a significant possibility of irreparable injury. More wolves will be killed under state management than were killed when ESA protections were in place. Idaho, Montana, and Wyoming each have public wolf hunts scheduled for this fall. Additionally, the states' defense of property laws permit the killing of wolves in more circumstances than defense of property regulations under the ESA. The killing of wolves during the pendency of this lawsuit will further reduce opportunities for genetic exchange among subpopulations. Genetic exchange that did not take place between larger subpopulations under ESA protections is not likely to occur with fewer wolves under state management. Absent genetic exchange, the viability of the wolf will be threatened by future environmental variability and stochastic events.

Because Plaintiffs have demonstrated a likelihood of success on the merits of several of their claims and the possibility of irreparable injury, their motion for a preliminary injunction is granted. The limited preliminary relief will reinstate ESA protections for the northern Rocky Mountain gray wolf to ensure the species is not imperiled during the pendency of this lawsuit.

II. Factual Background

The gray wolf is the largest wild member of the dog family. 72 Fed.Reg. 6106 (Feb. 8, 2007). Wolves generally live in packs of 2 to 12 animals and have strong social bonds. Id. at 6107. Wolf packs consist of a breeding pair (the alpha male and alpha female), their offspring from previous years, and an occasional unrelated wolf. Id. Generally, only the alpha male and alpha female of a pack breed. Id. Litters are born in April and average around 5 pups. Id. All pack members help feed and protect the pups as they grow. Pups are weaned at 5 to 6 weeks and then are mature enough to travel with the pack by around October. Packs typically occupy territories from 200 to 500 square miles. Each pack will defend its territory against other wolves and wolf packs. Id.

Wolves were once abundant throughout most of North America. Id. at 6106. Wolf hunting and an active, government-sponsored eradication program resulted in the extirpation of wolves from more than 95 percent of their range in the lower 48 states. Id. at 6106, 6125. They were exterminated in Idaho, Montana, Wyoming, and adjacent southwestern Canada by the 1930s. Id. at 6107.

The Northern Rocky Mountain gray wolf was listed under the ESA in 1974. 39 Fed.Reg. 1171 (Jan. 4, 1974). In 1987, the Fish & Wildlife Service developed a wolf recovery plan. 72 Fed.Reg. at 6107. This plan established a recovery goal of at least 10 breeding pairs and at least 100 wolves for three consecutive years in each of three core recovery areas: northwestern Montana, central Idaho, and the Greater Yellowstone area. Id.

In 1994, the Fish & Wildlife Service proposed designating portions of Idaho, Montana, and Wyoming as two nonessential experimental population areas for the gray wolf under § 10(j) of the ESA. 59 Fed.Reg. 60,252 (November 22, 1994); 59 Fed.Reg. 60,266...

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