Defenders of Wildlife v. Hall

• Decision Date: 03 August 2011
• Docket Number: No. CV 08–14–M–DWM.,CV 08–14–M–DWM.
• Citation: 807 F.Supp.2d 972
• Parties: DEFENDERS OF WILDLIFE, et al., Plaintiffs, v. H. Dale HALL, et al., Defendants,andSafari Club International, et al, Defendant–Intervenors.
• Court: U.S. District Court — District of Montana

807 F.Supp.2d 972

DEFENDERS OF WILDLIFE, et al., Plaintiffs,

v.H. Dale HALL, et al., Defendants,andSafari Club International, et al, Defendant–Intervenors.

No. CV 08–14–M–DWM.

United States District Court, D. Montana,Missoula Division.

Aug. 3, 2011.

Douglas L. Honnold, Jenny K. Harbine, Earthjustice Legal Defense Fund, Bozeman, MT, Brian K. Gallik, Goetz Gallik & Baldwin, Bozeman, MT, Michael Senatore, Defenders of Wildlife, Washington, DC, Rebecca Riley, Natural Resources Defense Council, Chicago, IL, for Plaintiffs.

Ayako Sato, U.S. Department of Justice, Washington, DC, for Defendants/Defendant–Intervenors.

Erik Edward Petersen, U.S. Department of Justice, Washington, DC, for Defendants.Anna M. Seidman, Safari Club International, Washington, DC, Robert Thomas Cameron, Gough Shanahan Johnson & Waterman, Helena, MT, for Defendant–Intervenors.

ORDER

DONALD W. MOLLOY, District Judge.

I. Introduction

The issue of wolf management has been heavily litigated in this court and others.¹ Plaintiffs filed this case on January 28, 2008. In April 2009, the case was stayed while multiple groups challenged the United States Fish & Wildlife Service's decision to designate and partially remove protections from the Northern Rocky Mountains Gray Wolf Distinct Population Segment under the Endangered Species Act (“ESA”), 16 U.S.C. § 1536. On August 5, 2010, the delisting rule was vacated for the reasons set forth in that opinion and order. Defenders of Wildlife v. Salazar, 729 F.Supp.2d 1207 (D.Mont.2010). Following that decision, the stay in these proceedings was lifted.

In the meantime, before a final decision in this case could be rendered, Congress passed and the president signed H.R. 1473, the Department of Defense and Full Year Continuing Appropriations Act of 2011. Section 1713 of this Act directs the Service to reissue the delisting rule this Court had earlier vacated. That in turn has given rise to two new cases challenging the constitutionality of Section 1713, and also prompted the Defendants to file a motion to dismiss this case claiming congressional action robs this Court of jurisdiction. The Court recently issued an order rejecting the constitutional challenge to Section 1713, see Doc. No. 86 in Alliance for the Wild Rockies v. Salazar, CV 11–70–M–DWM, 800 F.Supp.2d 1123, 2011 WL 3330821 (D.Mont. August 3, 2011), leaving intact the delisting rule issued on May 5, 2011.

It is now necessary to resolve the issues in this case, or dismiss them for lack of jurisdiction if such dismissal is warranted, because this case was the first in the long and continuing series of contentious claims over wolf management. Presently pending are cross motions for summary judgment, the Federal Defendants' motion to dismiss, and a motion to strike an extra record exhibit. For the reasons set forth below, the Plaintiffs' ESA claims are dismissed for lack of jurisdiction because they are not yet ripe. Plaintiffs' motion for summary judgment is denied and the Defendants' motion for summary judgment is granted as to the NEPA claims.

II. Factual Background

In 1995 and 1996, the Fish and Wildlife Service reintroduced wolves into portions of Idaho, Montana, and Wyoming. 73 Fed. Reg. at 4,721 (January 28, 2008). The authority for the wolf reintroduction is found in Section 10(j) of the ESA. 16 U.S.C. § 1539(j). Under Section 10(j) the wolves of the northern Rocky Mountains were designated a nonessential experimental species. 59 Fed. Reg. 60,252 (Nov. 22, 1994).

Section 10(j) of the ESA is a way to provide greater management flexibility to those charged with the reintroduction of a species on an experimental basis. U.S. v. McKittrick, 142 F.3d 1170, 1174 (9th Cir.1998) (“Congress' specific purpose in enacting section 10(j) was to give greater flexibility to the Secretary.”) (quoting H.R.Rep. No. 97–567, at 33 (1982), 1982 U.S.C.C.A.N. 2807, 2833). The Fish and Wildlife Service promulgates special rules to govern management of 10(j) species. 16 U.S.C. § 1533(d); 50 C.F.R. § 17.82 (2008). The regulations governing the management of the nonessential experimental wolves of the northern Rocky Mountains are the subject of this lawsuit.

On January 28, 2008, the Service published revisions to the rules governing the nonessential experimental wolves of the northern Rocky Mountains. AR 3571–3572. The 2008 Rule modifies the conditions under which states and tribes are permitted to take wolves to address unacceptable impacts to ungulate populations. Id. The earlier 2005 Rule permitted lethal take of wolves only when wolf predation was the primary cause of ungulate populations or herds not meeting state or tribal management goals. AR 3197. The 2008 amendments refined the definition of “unacceptable impact” so that wolves may be removed when they are “one of the major causes of the population or herd not meeting established state or tribal management goals.” AR 3587 (emphasis added). The modification was made, according to the Service, because the 2005 Rule set an unattainable threshold that did not provide the intended management flexibility. AR 3572.

On July 6, 2007, the Service published the proposed revisions to the 2005 rule in various media and at the same time solicited public comment. AR 7313–7320; 72 Fed. Reg. 36,942 (July 6, 2007); 73 Fed. Reg. at 4,724. Again on September 11, 2007, the Service opened an additional 30–day comment period for interested parties to comment on the proposed revisions and a draft environmental assessment AR 7035–7036. 72 Fed. Reg. 51,770 (Sept. 11, 2007). Plaintiffs in this case submitted comments opposing the proposed rule change. On January 16, 2008, after having reviewed the environmental assessment, the Service then published a finding of no significant impact and the final environmental assessment. AR 555; 3571. Because other matters of greater urgency to the parties arose after the 2008 Rule became final, this case was stayed in the hope that resolution of the other cases would resolve the heated legal disputes between and among the various litigants. Alas, anticipation seems to be the greater part of hope when it comes to environmental disputes.

III. Analysis

A. Justiciability

The Federal Defendants challenge the Court's jurisdiction, arguing the case should be dismissed because it is moot, unripe, and the Plaintiffs lack standing. These challenges have been narrowed and focused by the passage of Section 1713 of the Department of Defense and Full Year Continuing Appropriations Act of 2011 and the delisting rule issued on May 5, 2011. Under Section 1713, the Plaintiffs' claims are moot as to wolf populations in Montana and Idaho, as those populations are no longer listed under the ESA.² 76 Fed. Reg. 25590 (May 5, 2011). The only remaining wolves who might potentially be affected by the challenged 2008 10(j) rule are in three or four packs located on Wyoming's Wind River Indian Reservation.³ Accordingly, the analysis of the Federal Defendants' jurisdictional challenges must be confined to the effects of 2008 10(j) rule as applies to management of the wolf populations on the Wind River Indian Reservation.

1. Jurisdiction Under the ESA's Citizen Suit Provision

The Federal Defendants argue this court lacks jurisdiction over Plaintiffs' claim that the 2008 Rule violates the ESA's duty to conserve the wolf population. They argue Plaintiffs rely only on the ESA's citizen suit provision to provide jurisdiction for the ESA claims. The argument is misplaced because the Plaintiffs have alleged jurisdiction under both the Administrative Procedure Act (“APA”) and the ESA's citizen suit provision. Pls.'s 1st Amend, Compl. ¶ 6 (Oct. 16, 2008) (Doc. No. 51). Even if Plaintiffs' Amended Complaint is not reviewable under the ESA's citizen suit provision, it is reviewable under the APA. See 5 U.S.C. §§ 701–706; Lujan v. National Wildlife Federation, 497 U.S. 871, 882–883, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990).

The ESA's citizen suit provision allows citizens to sue in three circumstances. In relevant part, the ESA states:

any person may commence a civil suit on his own behalf—

(A) to enjoin any person, including the United States and any other governmental instrumentality or agency (to the extent permitted by the eleventh amendment to the Constitution), who is alleged to be in violation of any provision of this chapter or regulation issued under the authority thereof; or

(B) to compel the Secretary to apply, pursuant to section 1535(g)(2)(B)(ii) of this title, the prohibitions set forth in or authorized pursuant to section 1533(d) or 1538(a)(1)(B) of this title with respect to the taking of any resident endangered species or threatened species within any State; or

(C) against the Secretary where there is alleged a failure of the Secretary to perform any act or duty under section 1533 of this title which is not discretionary with the Secretary.

16 U.S.C. § 1540(g)(1)(A).

Subsections (A) and (B) are not so broad as to authorize Plaintiffs to complain that the 2008 regulations violate the ESA conservation mandate. The Supreme Court explained in Bennett v. Spear that subsection (A) was never intended to enable citizens to sue the Secretary or his delegates for failure to perform duties as administrator of the ESA. 520 U.S. 154, 173, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). In an analogous vein, Plaintiffs cannot sue under subsection (B) because that subsection permits citizens to compel the Secretary to apply the take prohibitions of the ESA, and in this case plaintiffs have not alleged an illegal take. See 16 U.S.C. § 1540(g)(1)(B).

One district court in the Ninth Circuit held that subsection (C) does not authorize a challenge of agency action that allegedly violates the conservation mandate of the ESA. Defenders of Wildlife v. Tuggle, 607 F.Supp.2d 1095, 1118 (D.Ariz.2009). A review of the rule to determine if it violates a conservation mandate would require a review of the content of the rule. Subsection (C) allows...