Farm Bureau Federation v. Babbitt, Nos. 97-8127

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBefore BRORBY, HOLLOWAY and HENRY; BRORBY
Citation199 F.3d 1224
Parties(10th Cir. 2000) WYOMING FARM BUREAU FEDERATION; MONTANA FARM BUREAU FEDERATION; AMERICAN FARM BUREAU FEDERATION; MOUNTAIN STATES LEGAL FOUNDATION; IDAHO FARM BUREAU FEDERATION; NATIONAL AUDUBON SOCIETY, a nonprofit corporation; PREDATOR PROJECT, a nonprofit corporation; SINAPU, a nonprofit corporation; GRAY WOLF COMMITTEE, a conservation group, Plaintiffs-Appellees, CAT D. URBIGKIT; JAMES R. URBIGKIT, Plaintiffs-Appellees and Cross-Appellants, v. BRUCE BABBITT, Secretary of Department of Interior; GEORGE T. FRAMPTON, Assistant Secretary of Fish and Wildlife and Parks, Department of Interior; JAMIE CLARK, Director of United States Fish and Wildlife Service; RALPH O. MORGENWECK, Regional Director of United States Fish and Wildlife Service; EDWARD E. BANGS, Project Leader of Gray Wolf EIS; ROGER KENNEDY, Director of National Park Service; DANIEL GLICKMAN, Secretary of Department of Agriculture; MICHAEL DOMBECK, Chief Forester of United States Forest Service, in their official capacities; DEPARTMENT OF INTERIOR; UNITED STATES FISH ANDWILDLIFE SERVICE; NATIONAL PARK SERVICE; DEPARTMENT OF AGRICULTURE; UNITED STATES FOREST SERVICE; UNITED STATES OF AMERICA, Defendants-Appellants and Cross-Appellees, NATIONAL WILDLIFE FEDERATION; WYOMING WILDLIFE FEDERATION; IDAHO WILDLIFE FEDERATION; WOLF EDUCATION AND RESEARCH CENTER; DEFENDERS OF WILDLIFE, Intervenors-Appellants, NEZ PERCE TRIBE, Intervenors
Docket NumberNos. 97-8127,98-8009,98-8011,98-8000,98-8008,98-8007
Decision Date13 January 2000

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199 F.3d 1224 (10th Cir. 2000)
WYOMING FARM BUREAU FEDERATION; MONTANA FARM BUREAU FEDERATION; AMERICAN FARM BUREAU FEDERATION; MOUNTAIN STATES LEGAL FOUNDATION; IDAHO FARM BUREAU FEDERATION; NATIONAL AUDUBON SOCIETY, a nonprofit corporation; PREDATOR

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PROJECT, a nonprofit corporation; SINAPU, a nonprofit corporation; GRAY WOLF COMMITTEE, a conservation group, Plaintiffs-Appellees,
CAT D. URBIGKIT; JAMES R. URBIGKIT, Plaintiffs-Appellees and Cross-Appellants,
v.
BRUCE BABBITT, Secretary of Department of Interior; GEORGE T. FRAMPTON, Assistant Secretary of Fish and Wildlife and Parks, Department of Interior; JAMIE CLARK, Director of United States Fish and Wildlife Service; RALPH O. MORGENWECK, Regional Director of United States Fish and Wildlife Service; EDWARD E. BANGS, Project Leader of Gray Wolf EIS; ROGER KENNEDY, Director of National Park Service; DANIEL GLICKMAN, Secretary of Department of Agriculture; MICHAEL DOMBECK, Chief Forester of United States Forest Service, in their official capacities; DEPARTMENT OF INTERIOR; UNITED STATES FISH ANDWILDLIFE SERVICE; NATIONAL PARK SERVICE; DEPARTMENT OF AGRICULTURE; UNITED STATES FOREST SERVICE; UNITED STATES OF AMERICA, Defendants-Appellants and Cross-Appellees,
NATIONAL WILDLIFE FEDERATION; WYOMING WILDLIFE FEDERATION; IDAHO WILDLIFE FEDERATION; WOLF EDUCATION AND RESEARCH CENTER; DEFENDERS OF WILDLIFE, Intervenors-Appellants,
NEZ PERCE TRIBE, Intervenors.
Nos. 97-8127, 98-8000, 98-8007, 98-8008, 98-8009, 98-8011
UNITED STATES COURT OF APPEALS TENTH CIRCUIT
January 13, 2000

Appeals from the United States District Court for the District of Wyoming. D.C. No. 94-CV-286

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Copyrighted Material Omitted

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Timothy S. Bishop (Todd S. Welch and William Perry Pendley of Mountain States Legal Foundation, Denver, Colorado; John J. Rademacher and Richard L. Krause of American Farm Bureau Federation, Park Ridge, Illinois, on the briefs), Chicago, Illinois, for Plaintiffs-Appellees.

James R. Urbigkit, pro se, for Plaintiffs-Appellees and Cross-Appellants.

M. Alice Thurston (Lois J. Schiffer, Assistant Attorney General, James C. Kilbourne, Ellen Durkee, and Christiana P. Perry, Department of Justice, Washington, D.C.; Margot Zallen, Denver, Colorado, and David Gayer, Washington, D.C., of counsel, Department of Interior, with her on the briefs) of Department of Justice, Washington, D.C., for Defendants-Appellants and Cross-Appellees.

Brian B. O'Neill (Richard A. Duncan and Jonathan W. Dettmann of Faegre & Benson LLP, Minneapolis, Minnesota; Russell O. Stewart and Colin C. Deihl of Faegre & Benson LLP, Denver, Colorado, with him on the briefs for Defenders of Wildlife; Thomas France and Thomas Lustig of National Wildlife Federation, Missoula, Montana, with him on the briefs for National Wildlife Federation, Wyoming Wildlife Federation, Idaho Wildlife Federation, and Wolf Education and Research Center) of Faegre & Benson LLP, Minneapolis, Minnesota, for Intervenors-Appellants.

Douglas L. Honnold (James S. Angell with him on the briefs) of Earthjustice Legal Defense Fund, Bozeman, Montana, for Predator Project, Sinapu, and Gray Wolf Committee.

Louis R. Cohen, James R. Wrathall, Matthew A. Brill, and Susan A. MacIntyre, of Wilmer, Cutler & Pickering, and Elizabeth Fayad, of Counsel, National Parks and Conservation Association, Washington, D.C., filed an amicus curiae brief on behalf of National Parks and Conservation Association, in support of the Department of the Interior.

Michael J. Bean, Environmental Defense Fund, Washington, D.C., and James B. Martin, Boulder, Colorado, Environmental Defense Fund, filed an amici curiae brief on behalf of Environmental Defense Fund, World Wildlife Fund, Wildlife Conservation Society, Izaak Walton League of America, Idaho Conservation League, Wolf Recovery Foundation, and Center for Marine Conservation.

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Herman Kaufman, Old Greenwich, Connecticut, filed an amicus curiae brief on behalf of Friends of Animals, Inc.

David J. Cummings, Lapwai, Idaho, filed an amicus curiae brief on behalf of Nez Perce Tribe.

James C. Hill, Washington, D.C., filed an amicus curiae brief, pro se, in support of Plaintiffs-Appellees.

Before BRORBY, HOLLOWAY and HENRY, Circuit Judges.

BRORBY, Circuit Judge.

These consolidated appeals stem from three separate challenges to the Department of Interior's ("Department") final rules governing the reintroduction of a nonessential experimental population of gray wolves in Yellowstone National Park ("Yellowstone") and central Idaho. The district court consolidated the challenges and struck down the wolf reintroduction rules, concluding they (1) are contrary to Congress' clear intent under section 10(j) of the Endangered Species Act, 16 U.S.C. 1539(j), to prevent lessening the protection afforded to naturally occurring, individual members of the same species; (2) are contrary to the Department's own regulations extending Endangered Species Act protections to all individual animals within an area where experimental and nonexperimental populations may overlap; and (3) conflict with section 4 of the Endangered Species Act, 16 U.S.C. 1533, by operating as a de facto "delisting" of naturally occurring wolves. Wyoming Farm Bureau Fed'n v. Babbitt, 987 F. Supp. 1349, 1372-76 (D. Wyo. 1997). The district court ordered the reintroduced non-native wolves and their offspring removed from the identified experimental population areas, but stayed its own judgment pending this appeal. Id. at 1376. Discerning no conflict between the challenged experimental population rules and the Endangered Species Act, we reverse the district court's order and judgment.

I. Background

A. Factual Summary

Detailed facts underlying this appeal are set forth in Wyoming Farm Bureau Fed'n v. Babbitt, 987 F. Supp. 1349 (D. Wyo. 1997); hence, we provide only a summary of salient facts.

The Secretary of Interior ("Secretary") listed the Northern Rocky Mountain Wolf, an alleged subspecies of the gray wolf, as an endangered species under the Endangered Species Act of 1973. 43 Fed. Reg. 9607 (March 9, 1978) ("Reclassification of the Gray Wolf in the United States and Mexico, with Determination of Critical Habitat in Michigan and Minnesota"). In 1978, the Secretary listed the entire gray wolf species as endangered in the lower forty-eight states, except Minnesota.1 Id. at 9610, 9612. In 1980, a team organized by the Department of Interior completed its Northern Rocky Mountain Wolf Recovery Plan ("Recovery Plan"), pursuant to the Endangered Species Act. The Department updated the Recovery Plan in 1987 to recommend the introduction of at least ten breeding pairs of wolves for three consecutive years in each of three identified recovery areas (Yellowstone National Park, central Idaho and northwestern Montana).

Based on the 1987 recommendation, and at Congress' direction, the Fish and Wildlife Service, in cooperation with the National Park Service and the United States Forest Service ("Forest Service"), prepared an environmental impact statement in accordance with the National Environmental Policy Act, 43 U.S.C. 4332(2)(C). The final environmental impact statement analyzed the environmental effects of five wolf recovery alternatives. The proposed

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action alternative the Fish and Wildlife Service adopted called for the annual reintroduction of fifteen wolves in two nonessential experimental population areas Yellowstone National Park and central Idaho beginning in 1994. Section 10(j) of the Endangered Species Act, 16 U.S.C. 1539(j), expressly authorizes the establishment of such nonessential experimental populations.

In June 1994, Secretary Bruce Babbitt adopted the proposed action alternative subject to certain conditions intended to "minimize or avoid the environmental impacts and public concerns identified during the environmental review process." One condition was the promulgation of nonessential experimental population rules to implement a wolf management program under section 10(j). The Department published its final experimental population rules in November 1994. 59 Fed. Reg. 60252 (Nov. 22, 1994). The Recovery Plan and final rules prescribe the release of 90-150 wolves from Canada into designated areas of Yellowstone and central Idaho over a three- to five-year period, id. at 60254-255, 60266, 60269, notwithstanding the Department's acknowledgment (1) a colony of naturally occurring wolves exists in Montana which, as the number of wolves increases, eventually will recolonize areas of Yellowstone and Idaho; and (2) lone wolves have been confirmed to exist in or near the designated experimental population areas in Yellowstone and Idaho. The final experimental population rules expressly authorize persons coming into contact with wolves to take actions otherwise prohibited under the Endangered Species Act. For example, a livestock producer can "take" any wolf caught in the act of killing, wounding or biting livestock on his land so long as the incident is reported within twenty-four hours. Id. at 60264, 60279. The rules also provide a framework within which the Fish and Wildlife Service can manage "problem" wolves. Id. at 60265, 60279.

B. The Parties

Appearing as Defendants/Appellants in this matter are the various governmental departments, agencies and their officials responsible for wolf and wolf habitat management, including the Department of Interior, its agencies the Fish and Wildlife Service and National Park Service, and the Department of Agriculture and its agency the Forest Service (hereafter the "Agencies"). On appeal, the National Audubon Society, which originally appeared as a plaintiff, realigns itself and joins in the Agencies' briefs. The National Wildlife Federation, Defenders of Wildlife, Wyoming Wildlife Federation, Idaho Wildlife Federation, and the Wolf Education and Research Center appear as Intervenors on behalf of the Agencies. Collectively,...

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