Defenders of Wildlife v. U.S. Fish & Wildlife Serv.

• Citation: 584 F.Supp.3d 812
• Decision Date: 10 February 2022
• Docket Number: Case No. 21-cv-00344-JSW, 21-cv-00349-JSW, 21-cv-00561-JSW
• Parties: DEFENDERS OF WILDLIFE, et al., Plaintiffs, v. U.S. FISH AND WILDLIFE SERVICE, et al., Defendants. WildEarth Guardians, et al., Plaintiffs, v. United States Department of the Interior, et al., Defendants. Natural Resources Defense Council, Inc., Plaintiff, v. United States Department of the Interior, et al., Defendants.
• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California

584 F.Supp.3d 812

DEFENDERS OF WILDLIFE, et al., Plaintiffs,
v.
U.S. FISH AND WILDLIFE SERVICE, et al., Defendants.

WildEarth Guardians, et al., Plaintiffs,
v.
United States Department of the Interior, et al., Defendants.

Natural Resources Defense Council, Inc., Plaintiff,
v.
United States Department of the Interior, et al., Defendants.

Case No. 21-cv-00344-JSW, 21-cv-00349-JSW, 21-cv-00561-JSW

United States District Court, N.D. California.

Signed February 10, 2022

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Timothy J. Preso, Pro Hac Vice, Earthjustice, Bozeman, MT, Gregory C. Loarie, Earthjustice, San Francisco, CA, Michael Mayer, Pro Hac Vice, Kristen Lee Boyles, Earthjustice, Seattle, WA, for Plaintiffs in 21-cv-00344-JSW.

Michael Richard Eitel, U.S. Department of Justice, Environment and Natural Resources Division, Denver, CO, for Defendants U.S. Fish and Wildlife Service in 21-cv-00344-JSW, Debra Haaland in 21-cv-00344-JSW, United States Department of the Interior in 21-cv-00561-JSW, United States Fish and Wildlife Service in 21-cv-00561-JSW.

Jason DeForest, Pro Hac Vice, Utah Attorney General's Office, Salt Lake City, UT, for Defendant State of Utah in 21-cv-00344-JSW.

John R. Mellgren, Pro Hac Vice, Western Environmental Law Center, Eugene, OR, Kelly E. Nokes, Pro Hac Vice, Western Environmental Law Center, Buena Vista, CO, Jason Robert Flanders, Aqua Terra Aeris Law Group, Oakland, CA, for Plaintiff WildEarth Guardians in 21-cv-00349-JSW.

John R. Mellgren, Pro Hac Vice, Western Environmental Law Center, Eugene, OR, Kelly E. Nokes, Pro Hac Vice, Western Environmental Law Center, Buena Vista, CO, for Plaintiffs Western Watersheds Project in 21-cv-00349-JSW, Cascadia Wildlands in 21-cv-00349-JSW, Environmental Protection Information Center in 21-cv-00349-JSW, Klamath Forest Alliance in 21-cv-00349-JSW, Klamath Siskiyou Wildlands Center in 21-cv-00349-JSW, The Lands Council in 21-cv-00349-JSW, Wildlands Network in 21-cv-00349-JSW.

John R. Mellgren, Western Environmental Law Center, Eugene, OR, Kelly E. Nokes, Western Environmental Law Center, Buena Vista, CO, for Plaintiff Kettle Range Conservation Group in 21-cv-00349-JSW.

Michael Richard Eitel, U.S. Department of Justice, Environment and Natural Resources Division, Denver, CO, for Defendants United States Department of the Interior in 21-cv-00349-JSW, United States Fish and Wildlife Service in 21-cv-00349-JSW, Martha Williams in 21-cv-00349-JSW, Debra Haaland in 21-cv-00349-JSW.

Andrew Adams, Pro Hac Vice, Hogen Adams PLLC, Colette Routel, Mitchell Hamline School of Law, Saint Paul, MN, Deborah Ann Sivas, Environmental Law Clinic Mills Legal Clinic at Stanford Law School, Stanford, CA, for Defendant Red Cliff Band of Lake Superior Chippewa Indians in 21-cv-00349-JSW.

Jared Eldridge Knicley, Pro Hac Vice, NRDC, Washington, DC, Katherine K. Desormeau, Natural Resources Defense Council, San Francisco, CA, Claire H. Woods, Natural Resources Defense Council, Inc., Santa Monica, CA, Francis William Sturges, Jr., Pro Hac Vice, Natural Resources Defense Council, Chicago, IL, for Plaintiff in 21-cv-00561-JSW.

Andrew Adams, Pro Hac Vice, Hogen Adams PLLC, St. Paul, MN, Colette Routel, Mitchell Hamline School of Law, Saint Paul, MN, for Defendant Red Cliff Band of Lake Superior Chippewa Indians in 21-cv-00561-JSW.

ORDER RESOLVING CROSS-MOTIONS FOR SUMMARY JUDGMENT

Re: Dkt. Nos. 74, 107, 109, 111

JEFFREY S. WHITE, United States District Judge

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Now before the Court for consideration are: (1) Plaintiffs' motion for summary judgment, filed by the plaintiffs in these related cases (collectively "Plaintiffs")¹

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(Dkt. No. 74, "Plaintiffs' MSJ)² ; (2) Defendants' cross-motion for summary judgment, filed by the United States Fish and Wildlife Service, et al., (collectively "Federal Defendants") (Dkt. No. 107, "Federal Defendants' Cross-MSJ"); (3) Intervenor-Defendants' cross-motion for summary judgment filed by the State of Utah ("Utah") (Dkt. No. 109); and (4) Intervenor-Defendants' cross-motion for summary judgment filed by the National Rifle Association of America and Safari Club International (collectively, "NRA") (Dkt. No. 111). The Court has considered the parties' papers, relevant legal authority, the record in this case, and had the benefit of oral argument.³ For the reasons below, the Court GRANTS, IN PART, and DENIES, IN PART, Plaintiffs' motion for summary judgment and therefore GRANTS, IN PART, and DENIES, IN PART, the Federal Defendants and Intervenor-Defendants' motions.

BACKGROUND

These three related cases challenge the recent rule enacted by the Department of the Interior and the National Fish and Wildlife Service (the "Service"), which removes federal protections for the gray wolf population. Plaintiffs challenge the rule as a violation of the Endangered Species Act of 1973 ("ESA"), 16 U.S.C. section 1531, et seq. , and the Administrative Procedure Act ("APA"), 5 U.S.C. section 551 et seq.

The gray wolf once occupied a large portion of the United States. AR_52. After the arrival of Europeans, the range of the gray wolf began shrinking due to deliberate killings of wolves by humans and human agricultural and industrial development. Id. As a result, the range and population of gray wolves was substantially reduced by the 1970s. Id. Accordingly, regional subspecies of the "gray wolf" were declared endangered by the federal government between 1966 and 1976. Id.

In 1978, the Service reclassified the gray wolf throughout the lower 48 United States and Mexico. The reclassification subsumed the previous regional listings into a single species listing divided into two entities: the gray wolf in Minnesota, which the Service determined was a threatened population; and the gray wolf in the remaining lower 48 United States and Mexico, which remained endangered. See Reclassification of the Gray Wolf in the United States and Mexico, with Determination of Critical Habitat in Michigan and Minnesota, 43 Fed. Reg. 9,607, 9, 608, 9612 (March 9, 1978). As a result of the ESA's protections, gray wolf populations began to rebound in several parts of their historic range. See AR_48.

In 2003, the Service issued a rule that divided the gray wolf listing into three distinct population segments ("DPS"): an Eastern segment, a Western segment, and a Southwestern segment.

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Final Rule to Reclassify and Remove the Gray Wolf From the List of Endangered and Threatened Wildlife in portions of the Conterminous United States; Establishment of Two Special Regulations for Threatened Gray Wolves, 68 Fed. Reg. 15,804, 15,818 (April 1, 2003) ("2003 Rule"). The 2003 Rule designated wolves in Eastern and Western segments as threatened, rather than endangered. Two district courts invalidated the 2003 Rule. A district court in Oregon found that the Service effectively ignored the species' status in its full range by downlisting the species based solely on the viability of a small population within that segment. See Defs. of Wildlife v. U.S. Dep't of the Interior , 354 F. Supp. 2d 1156, 1170-72 (D. Or. 2005). A district court in Vermont invalidated the Service's attempt to designate and delist the Eastern segment of gray wolves because it impermissibly "lumped" into the Eastern segment any gray wolves in the Northeast region of the United States, without determining whether a gray wolf population existed in the Northeast. See Nat'l Fed'n v. Norton , 386 F. Supp. 2d 553, 564-65 (D. Vt. 2005) (" Norton ").

In 2007, the Service issued a new rule that created a "Western Great lakes gray wolf distinct population segment" and simultaneously delisted that segment. See Final Rule Designating the Western Great Lakes Populations of Gray Wolves as a Distinct Population Segment; Removing the Western Great Lakes Distinct Population Segment of the Gray Wolf From the List of Endangered and Threatened Wildlife, 72 Fed. Reg. 6,052 (Feb. 8, 2007) ("2007 Rule"). A district court invalidated the 2007 Rule for "fail[ing] to acknowledge and address crucial statutory ambiguities" concerning the creation of distinct population segments for the purpose of delisting. Humane Soc'y of the U.S. v. Kempthorne , 579 F. Supp. 2d 7 (D.D.C. 2008).

In 2009, the Service published a new final rule without notice and comment, which added a section to the vacated 2007 Rule entitled "Issues on Remand." Final Rule to Identify the Western Great Lakes Populations of Gray Wolves as a Distinct Population Segment and to Revise the List of Endangered and Threatened Wildlife, 74 Fed. Reg. 15,070 (Apr. 2, 2009) ("2009 Rule"). The 2009 Rule was challenged in court on several grounds. Shortly after filing suit, the parties entered into a stipulated settlement and the Service conceded that it erred by publishing the 2009 Rule without providing for notice and comment as required by the APA. Humane Soc'y of the U.S. v. Salazar , No. 09-1092 (D.D.C. July 2, 2009), Dkt. No. 27. The 2009 Rule was therefore vacated and remanded back to the Service and returned the wolves in the Western Great Lakes DPS to the listing status they had prior to the 2009 Rule.

In 2009, the Service recognized and delisted the Northern Rocky Mountain population of gray wolves ("NRM wolves"). Final Rule to Identify the Northern Rocky Mountain Gray Wolf DPS and Revise the List of Endangered and Threatened Wildlife, 74 Fed. Reg. 15,123 (Apr. 2, 2009). Although a district court invalidated the delisting, it was reinstated by Congress. See Defs. of Wildlife v. Salazar , 729 F. Supp. 2d 1207, 1228 (D. Mont. Aug. 5, 2010) ; Section 1713, Pub. L. 112-10, 125 Stat. 38 (Apr. 15, 2011). The Service's delisting of wolves in Wyoming was challenged but was upheld by the D.C. Circuit Court of Appeals. 77 Fed. Reg. 55,530 (Sept. 10, 2012) ; Defs. of Wildlife v. Zinke , 849 F.3d 1077, 1093 (D.C. Cir. 2017).

In 2011, the Service issued another rule seeking to divide and delist gray wolves in the broader Western Great Lakes region. Revising the Listing of the Gray Wolf (Canis lupus ) in the Western Great...