76 F.Supp.3d 69 (D.D.C. 2014), C. A. 13-186 (BAH), Humane Society of the United States v. Jewell

Docket Nº:Civil Action 13-186 (BAH)
Citation:76 F.Supp.3d 69
Opinion Judge:BERYL A. HOWELL, United States District Judge.
Party Name:HUMANE SOCIETY OF THE UNITED STATES, et al., Plaintiffs, v. SALLY JEWELL, Secretary of the Interior, et al., [1] Defendants, v. STATE OF WISCONSIN, et al. Intervenor-Defendants
Attorney:Civil Action No. 13-186 (BAH) For HUMANE SOCIETY OF THE UNITED STATES, BORN FREE USA, HELP OUR WOLVES LIVE, FRIENDS OF ANIMALS AND THEIR ENVIRONMENT, Plaintiffs: Bruce A. Wagman, PRO HAC VICE, SCHIFF HARDIN, LLP, San Francisco, CA; Ralph E. Henry, Jr., HUMANE SOCIETY OF THE UNITED STATES, Washing...
Case Date:December 19, 2014
Court:United States District Courts, District of Columbia
 
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Page 69

76 F.Supp.3d 69 (D.D.C. 2014)

HUMANE SOCIETY OF THE UNITED STATES, et al., Plaintiffs,

v.

SALLY JEWELL, Secretary of the Interior, et al., 1 Defendants,

v.

STATE OF WISCONSIN, et al. Intervenor-Defendants

Civil Action No. 13-186 (BAH)

United States District Court, D. Columbia

December 19, 2014

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For HUMANE SOCIETY OF THE UNITED STATES, BORN FREE USA, HELP OUR WOLVES LIVE, FRIENDS OF ANIMALS AND THEIR ENVIRONMENT, Plaintiffs: Bruce A. Wagman, PRO HAC VICE, SCHIFF HARDIN, LLP, San Francisco, CA; Ralph E. Henry, Jr., HUMANE SOCIETY OF THE UNITED STATES, Washington, DC.

For U.S. DEPARTMENT OF INTERIOR, FISH AND WILDLIFE SERVICE, Defendants: Andrea Gelatt, U.S. DEPARTMENT OF JUSTICE, Land & Natural Resources Division, Washington, DC.

For SALLY JEWELL, Secretary of the Interior, Defendant: Andrea Gelatt, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Land & Natural Resources Division, Washington, DC.

For STATE OF WISCONSIN, WISCONSIN DEPARTMENT OF NATURAL RESOURCES, Intervenor Defendants: Cynthia R. Hirsch, LEAD ATTORNEYS, WISCONSIN DEPARTMENT OF JUSTICE, Madison, WI; Thomas James Dawson, III, LEAD ATTORNEY, WISCONSIN DEPARTMENT OF JUSTICE, Madison, WI.

For STATE OF MICHIGAN, MICHIGAN DEPARTMENT OF NATURAL RESOURCES, Intervenor Defendants: Nathan Arthur Gambill, LEAD ATTORNEY, STATE OF MICHIGAN - ATTORNEY GENERAL, Lansing, MI; Pamela J. Stevenson, LEAD ATTORNEY, MICHIGAN DEPARTMENT OF ATTORNEY GENERAL, Natural Resources/Environmental Division, Lansing, MI; Stephen D. Thill, MICHIGAN DEPARTMENT OF ATTORNEY GENERAL, Environment, Natural Resource and Agriculture Division, Lansing, MI.

For SAFARI CLUB INTERNATIONAL, Intervenor Defendant: Anna Margo Seidman, LEAD ATTORNEY, SAFARI CLUB INTERNATIONAL, Washington, DC; William P. Horn, LEAD ATTORNEY, BIRCH, HORTON, BITTNER AND CHEROT, Washington, DC; James Hardwick Lister, BIRCH HORTON BITTNER AND CHEROT, P.C., Washington, DC.

For NATIONAL RIFLE ASSOCIATION OF AMERICA, Intervenor Defendant: Christopher A. Conte, LEAD ATTORNEY, NATIONAL RIFLE ASSOCIATION, Fairfax, VA; William P. Horn, LEAD ATTORNEY, BIRCH, HORTON, BITTNER AND CHEROT, Washington, DC; James Hardwick Lister, BIRCH HORTON BITTNER AND CHEROT, P.C., Washington, DC.

For U.S. SPORTSMEN'S ALLIANCE FOUNDATION, WISCONSIN BEAR HUNTERS ASSOCIATION, WISCONSIN BOWHUNTERS ASSOCIATION, UPPER PENINSULA BEAR HOUNDSMEN ASSOCIATION, MICHIGAN HUNTING DOG FEDERATION, Intervenor Defendants: William P. Horn, LEAD ATTORNEY, BIRCH, HORTON, BITTNER AND CHEROT, Washington, DC; James Hardwick Lister, LEAD ATTORNEY, BIRCH HORTON BITTNER AND CHEROT, P.C., Washington, DC.

For MICHIGAN UNITED CONSERVATION CLUBS, Intervenor Defendant: James Hardwick Lister, LEAD ATTORNEY, BIRCH HORTON BITTNER AND CHEROT, P.C., Washington, DC; John I. Kittel, MAZUR & KITTEL, PLLC, Farmington Hills, MI.

For ROCKY MOUNTAIN ELK FOUNDATION, Intervenor Defendant: James Hardwick Lister, LEAD ATTORNEY, BIRCH HORTON BITTNER AND CHEROT, P.C., Washington, DC; William P. Horn, LEAD ATTORNEY, BIRCH, HORTON, BITTNER AND CHEROT, Washington, DC; John I. Kittel, MAZUR & KITTEL, PLLC, Farmington Hills, MI.

For MINNESOTA DEPARTMENT OF NATURAL RESOURCES, Amicus: David Peter Iverson, LEAD ATTORNEY, OFFICE OF THE MINNESOTA ATTORNEY GENERAL, St. Paul, MN.

For ASSOCIATION OF FISH AND WILDLIFE AGENCIES, Amicus: Marilyn Carol Bambery, LEAD ATTORNEY, BAMBERY LAW OFFICE, Dewitt, MI.

OPINION

BERYL A. HOWELL, United States District Judge.

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Table of Contents

I. BACKGROUND
A. Statutory Framework: The Endangered Species Act Of 1973
1. The 1973 Act
2. The 1978 Amendment To The Definition Of " Species"
B. 1966-1978: The Listing Of The Gray Wolf
1. 1966-1976: Listing of Four Wolf Subspecies
2. 1977-78: Listing Of Gray Wolves At Taxonomic Species Level
C. 1978-2000: General Recovery Efforts And The 1992 Recovery Plan
D. 2000 to Present: Attempts To Delist The Gray Wolf
1. The 2003 Rule
2. The 2007 Rule
3. The 2009 Rule
E. The Challenged Final Rule
1. The NPRM
2. Promulgating The Final Rule
F. Procedural History
II. LEGAL STANDARD
A. Summary Judgment
B. Chevron Framework
C. Administrative Procedure Act
III. DISCUSSION
A. The Plaintiffs Have Standing
B. The FWS's Interpretation Of The ESA Is Unreasonable And Therefore
Not Entitled To Deference
1. A DPS Cannot Be Identified To Delist A Vertebrate Population
2. Designating And Delisting A DPS Of A Broader Listed Species Violates
The ESA
C. The Delisting Of The Western Great Lakes DPS Was Contrary To The
Evidence Before The Agency
1. Failure To Explain Why Territory Suitable For Wolf Occupation Is
Not A Significant Part Of The Gray Wolf's Range
2. Failure To Explain Impact Of Combined Mortality Factors
3. Failure To Explain The Adequacy Of Non-Existent State
Regulatory Schemes
4. Failure To Explain How A State Plan To Allow Virtually Unregulated
Killing Of Wolves In More Than Fifty Percent Of The State Does Not
Constitute A Threat To Species
D. Remedy
IV. CONCLUSION
MEMORANDUM OPINION The gray wolf, like the bald eagle and the grizzly bear, has become a symbol of endangered species but, perhaps more than other such species, the gray wolf is also a lightning rod for controversy. See generally Jamison E. Colburn, Canis (Wolf) and Ursus (Grizzly): Taking the Measure of an Eroding Statute, 22-Fall Nat. Resources & Env't 22 (2007). The instant suit, brought by a group of " animal protection and conservation organizations," Compl. ¶ 1, ECF No. 1, against the United States Department of the Interior (the " DOI" ) and the National Fish and Wildlife Service (the " FWS" ), is the latest iteration in a long-running dispute over the fate of the gray wolf that predates the Endangered Species Act of 1973 (the " ESA" ), 16 U.S.C. § 1531 et seq. Since 2003, the FWS has promulgated rules to remove federal protections under the ESA for the gray wolf population at issue in this matter four times. The first Page 75 three times, the FWS rescinded the proposed rule " delisting" the gray wolf, twice on the orders of Federal courts and once on its own initiative when facing another likely legal challenge. The instant lawsuit challenges the FWS's fourth attempt reflected in a Final Rule, which took effect in January 2012, that " delisted," or removed from the ESA's list of protected species, the gray wolves in nine states in the Midwest. See Revising the Listing of the Gray Wolf (Canis Lupus) in the Western Great Lakes (the " Final Rule" ), 76 Fed.Reg. 81,666 (Dec. 28, 2011). The plaintiffs, the Humane Society of the United States (" HSUS" ), Born Free, USA (" Born Free" ), Help Our Wolves Live (" HOWL" ), and Friends of Animals and Their Environment (" FATE" ), allege that the Final Rule violates the ESA and the Administrative Procedure Act (the " APA" ), 5 U.S.C. § 551 et seq., by, inter alia, (1) improperly designating and delisting a distinct population segment of a species that was already listed as " endangered," see Compl. ¶ ¶ 113-120; (2) improperly relying on inadequate state regulatory mechanisms to protect gray wolves following their removal from the protections of the ESA, see id. ¶ ¶ 121-126; and (3) improperly designating a group of wolves as a distinct population segment without sufficient knowledge about the species to which the wolves in that population belong, see id. ¶ ¶ 127-130. Pending before the Court are three cross-motions for summary judgment filed by (1) the plaintiffs, Pls.' Mot. Summ. J. at 1 (" Pls.' Mot." ), ECF No. 24; (2) the defendants, the Secretary of the Interior, the DOI, and the FWS (collectively, the " Federal defendants" or the " defendants" ), Fed. Defs.' Cross-Mot. Summ. J. (" Defs.' Mot" ) at 1, ECF No. 27; and (3) the Defendant-Intervenor Hunter Conservation Coalition (" HCC" ),2 HCC's Cross-Mot. Summ. J. (" HCC's Mot." ) at 1, ECF No. 33.3 The States of Wisconsin and Michigan oppose the plaintiffs' Motion and support the Federal defendants' motions as defendant-intervenors. Wisconsin's Opp'n Pls.' Mot. (" Wisc. Opp'n" ), ECF No. 29; State of Michigan and Michigan Dep't of Nat. Resources' Opp'n Pls.' Mot. and Concurring in Fed. Defs.' Mot. (" Mich. Opp'n" ), ECF No. 30. The State of Minnesota and the Association of Fish and Wildlife Agencies have filed briefs as amicus curiae. Amicus Minnesota Dep't of Nat. Resources' Mem. Supp. Defs.' Cross-Mot. Summ. J. and Opp'n Pls.' Mot. (" Minn. Opp'n" ), ECF No. 31; Brief of Amicus Curiae Assoc. of Fish and Wildlife Agencies (" AFWA Brief" ), ECF No. 38. The D.C. Circuit has noted that, at times, a court " must lean forward from the bench to let an agency know, in no uncertain terms, that enough is enough." Pub. Citizen Health Res. Grp. v. Brock, 823 F.2d 626, 627, 262 U.S.App.D.C. 218 (D.C. Cir. 1987). This case is one of those times. The FWS's Final Rule challenged in this action is no more valid than the agency's three prior attempts to remove federal...

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