Defenders of Wildlife v. Jewell
| Decision Date | 04 April 2016 |
| Docket Number | CV 14-246-M-DLC,14-250-M-DLC,Consolidated with Case Nos. 14-247-M-DLC |
| Citation | 176 F.Supp.3d 975 |
| Parties | Defenders of Wildlife, Plaintiff, v. Sally Jewell, Secretary, U.S. Department of the Interior, in her official capacity; Daniel M. Ashe, Director, U.S. Fish and Wildlife Service, in his official capacity, Defendants, and Idaho Farm Bureau Federation; Wyoming Farm Bureau ; Montana Farm Bureau Federation; Washington Farm Bureau, Idaho State Snowmobile Association; Colorado Snowmobile Association ; Colorado Off-Highway Vehicle Coalition; American Petroleum Institute; Montana Petroleum Association ; Western Energy Alliance; Governor C.L. “Butch” Otter; State of Montana; Montana Fish, Wildlife and Parks ; and State of Wyoming, Defendant-Intervenors. |
| Court | U.S. District Court — District of Montana |
Michael Senatore, Defenders of Wildlife, Washington, DC, Summer Lisa Nelson, Gentry & Nelson Merrill Law Group, PLLC, Missoula, MT, Timothy J. Preso, Earthjustice Legal Defense Fund, Bozeman, MT, John R. Mellgren, Western Environmental Law Center, Eugene, OR, Laura King, Matthew Kellogg Bishop, Western Environmental Law Center, Helena, MT, for Plaintiffs.
Trent S.W. Crable, U.S. Department of Justice-Environmental Enforcement, Washington, DC, Mark Steger Smith, Office of the U.S. Attorney, Billings, MT, for Defendants.
Brian T. Hodges, Ethan Blevins, Pacific Legal Foundation, Bellevue, WA, Maegan L. Woita, Mountain States Legal Foundation, Lakewood, CO, Catherine M. Wilmarth, Wayne J. D'Angelo, Kelly Drye & Warren LLP, Washington, DC, Randy J. Cox, Randy J. Tanner, Boone Karlberg, P.C., James David Johnson, Williams Law Firm, Missoula, MT, Samuel J. Eaton, Office of Species Conservation, Boise, ID, Michael J. McGrady, Erik Edward Petersen, Wyoming Attorney General, Cheyenne, WY, Rebecca Dockter, Zachary C. Zipfel, Montana Department of Fish Wildlife and Parks, Timothy C. Fox, Montana Attorney General, Jeffrey M. Hindoien, Jackson Murdo & Grant, Helena, MT, for Defendant-Intervenors.
Dana L. Christensen
Before the Court are seven motions for summary judgment filed in these three consolidated cases: one filed by the plaintiffs in CV 14-246-M-DLC and CV 14-247-M-DLC; one filed by the plaintiffs in CV 14-250-M-DLC; two cross-motions filed by the government; and three cross-motions filed by the three groups of defendant-intervenors. The Court heard several hours of thorough and thought-provoking oral argument on February 9, 2016, and the undersigned greatly appreciates the quality of both the oral presentations and the briefing in this complicated matter. For the reasons explained below, the Court grants the motions in part and denies them in part; vacates the United States Fish & Wildlife Service's (the “Service”) August 13, 2014 withdrawal of its proposed rule to list the distinct population segment of the North American wolverine as threatened under the Endangered Species Act (“ESA”); and remands this matter to the Service for further consideration consistent with this order.
Sometimes referred to as the “mountain devil,” the North American wolverine, Gulo gulo luscus, is the largest terrestrial member of what is commonly known as the weasel family. (PR-00734.1 ) Resembling a small bear, female wolverines weigh between 17 and 26 pounds, while males range between 26 and 40 pounds. (Id. ) Compact, stout, and uncannily strong, the wolverine has been known to kill prey many times its size, including mature bull moose. Historically, the wolverine has assumed a mythical reputation. At the beginning of Chapter One of The Wolverine Way, author Douglas H. Chadwick cites to the following from Ernest Thompson Seton's Lives of Games Animals: Vol. II, 1925-1927 :
The wolverine is a tremendous character ... a personality of unmeasured force, courage, and achievement so enveloped in a mist of legend, superstition, idolatry, fear, and hatred, that one scarcely knows how to begin or what to accept as fact. Picture a weasel—and most of us can do that, for we have met the little demon of destruction, that small atom of insensate courage, that symbol of slaughter, sleeplessness, and tireless, incredible activity—picture that scrap of demoniac fury, multiply that mite by some fifty times, and you have the likeness of a wolverine.
Douglas H. Chadwick, The Wolverine Way 15 (Patagonia Books 2010).
The wolverine is custom-built for life in mountainous, snowy environments, and relies upon snow for its existence at the most fundamental level. Physiologically, the wolverine exhibits a number of snow-adapted traits, including a lower threshold of thermoneutrality at -40° C; dense, hydrophobic, frost-resistant hair; and very low foot loadings, due to its disproportionately large paws. (PI-001258.) Wolverines move effortlessly through deep snow and steep terrain—scientists observed one intrepid radio-collared individual travel eleven kilometers in four hours, gaining over 2,000 feet in elevation to summit an 8,000 foot mountain in Montana's Glacier National Park. (LIT-000948-50.)
The wolverine displays an “obligate” relationship with snow for natal denning purposes, meaning, quite simply, the wolverine requires snow in order to reproduce. Scientists have posited a number of explanations for this relationship—thermal protection and/or predator shielding for newborn kits, food caching—but, regardless of the reason, there is consensus that the relationship is obligate at the den scale. (FR-05609.) Female wolverines excavate reproductive dens down into the snowpack, and therefore tend to choose areas where snow persists through the denning season at a minimum depth of five feet. (PR-00734.) Dens consist of tunnels containing well-used runways and bed sites, and may naturally incorporate shrubs, rocks, and downed logs as part of the den structure. (Id. ) The requirement of cold, snowy conditions means that, in the southern portion of the species' range, including the United States, where ambient temperatures are warmest, wolverine distribution is restricted to high elevations. (PR-00735.) To say that wolverine den sites tend be off the beaten path is an understatement—in Idaho, natal den sites occur above 8,200 feet, often in north-facing boulder talus fields or subalpine glacial cirques in forest openings; in Montana, natal dens occur above 7,874 feet and are located on north aspects in avalanche debris. (PR-00734.) Throughout its worldwide circumboreal range, the wolverine depends on persistent spring snow cover to reproduce—despite ubiquitous alternative denning structure within its distribution, no wolverine has ever been observed denning anywhere but in snow. (PR-00735-36.)
By age three, nearly all female wolverines become pregnant every year, but approximately half of all wolverine pregnancies terminate annually. (PR-00734.) Pregnant females commonly resorb or spontaneously abort litters prior to giving birth, perhaps to preserve resources to increase reproductive success in subsequent years, or because of low food availability. (Id. ) Studies suggest that in many places in the range of wolverines, it may take two years of foraging for a female to store enough energy to successfully reproduce. (Id. ) Due to the combination of these factors, it is likely that actual rates of successful reproduction in wolverines are among the lowest known for mammals. (Id. )
While the reclusive nature of the wolverine makes it nearly impossible to know for certain, it is estimated that no more than 300 individuals live in the contiguous United States. (FR-00022.) Wolverines most likely exist in this country as a metapopulation: a population composed of a network of semi-isolated subpopulations, each occupying a suitable patch of habitat in a landscape of otherwise unsuitable habitat. (PR-00735.) Metapopulations require some level of regular or intermittent migration and gene flow among subpopulations, in which individual subpopulations support one-another by providing genetic and demographic enrichment through mutual exchange of individuals. (Id. ) If metapopulation dynamics break down, i.e. the influx of individuals and corresponding genetic diversity from other subpopulations is disrupted, either due to changes within subpopulations or loss of connectivity, an entire metapopulation may be jeopardized due to subpopulations becoming unable to persist in the face of inbreeding or demographic and environmental stochasticity. (Id. ) Due to temperature constraints associated with the lower latitudes of its distribution, the wolverine metapopulation in the contiguous United States consists of a network of small subpopulations on mountain tops, some containing less than ten individuals. (Id. ) For the metapopulation to persist under these circumstances, individuals must cycle between subpopulations. Studies demonstrate that, during dispersal movements, wolverines prefer to move across suitable habitat, as defined by persistent spring snow cover, rather than across unsuitable habitat. (Id. )
Wolverines carve out relatively large home ranges for animals of their size. Females, whose ranges are likely tied to the availability of food, maintain an average home range of 148 square miles in central Idaho, 55 square miles in Glacier national Park, and 128 square miles in the Greater Yellowstone region. (Id. ) Males, whose ranges likely depend on breeding opportunities, maintain an average home range of 588 square miles in central Idaho, 193 square miles in Glacier National Park, and 311 square miles in the Greater Yellowstone region. (PR-00735.) Thus, with range area requirements of this size, habitat islands are necessarily able to support only a limited number of wolverines, before range overlap becomes unacceptable. Within areas with known wolverine populations, relatively few wolverines can coexist due to these naturally low population densities, even if all areas were occupied at or near carrying...
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