Humane Soc'y of U.S. v. Jewell, Civil Action No. 13–186 BAH

• Court: United States District Courts. United States District Court (Columbia)
• Citation: 76 F.Supp.3d 69
• Docket Number: Civil Action No. 13–186 BAH
• Parties: Humane Society of the United States, et al., Plaintiffs, v. Sally Jewell, Secretary of the Interior, et al.,Defendants, v. State of Wisconsin et al., Intervenor–Defendants.
• Decision Date: 19 December 2014

76 F.Supp.3d 69

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, District of Columbia.

Signed December 19, 2014

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Bruce A. Wagman, Schiff Hardin, LLP, San Francisco, CA, Ralph E. Henry, Jr., Humane Society of the United States, for Plaintiffs.

Andrea Gelatt, U.S. Department of Justice, Washington, DC, for Defendants.

Cynthia R. Hirsch, Thomas James Dawson, III, Wisconsin Department of Justice, Madison, WI, Nathan Arthur Gambill, Pamela J. Stevenson, Stephen D. Thill, Michigan Department of Attorney General, Lansing, MI, Anna Margo Seidman, Safari Club International, William P. Horn, James Hardwick Lister, Birch Horton Bittner and Cherot, P.C., Washington, DC, Christopher A. Conte, National Rifle Association, Fairfax, VA, John I. Kittel, Mazur & Kittel, PLLC, Farmington Hills, MI, for Intervenor-Defendants.

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MEMORANDUM OPINION

BERYL A. HOWELL, United States District Judge

Table of Contents

I. BACKGROUND...76

A. Statutory Framework: The Endangered Species Act Of 1973...76

1. The 1973 Act...77

2. The 1978 Amendment To The Definition Of “Species”...79

B. 1966–1978: The Listing Of The Gray Wolf...81

1. 1966–1976: Listing of Four Wolf Subspecies...81

2. 1977–78: Listing Of Gray Wolves At Taxonomic Species Level...82

C. 1978–2000: General Recovery Efforts And The 1992 Recovery Plan...85

D. 2000 to Present: Attempts To Delist The Gray Wolf...88

1. The 2003 Rule...88

2. The 2007 Rule...91

3. The 2009 Rule...94

E. The Challenged Final Rule...96

1. The NPRM...96

2. Promulgating The Final Rule...99

F. Procedural History...100

II. LEGAL STANDARD...101

A. Summary Judgment...101

B. Chevron Framework...101

C. Administrative Procedure Act...103

III. DISCUSSION...104

A. The Plaintiffs Have Standing...105

B. The FWS's Interpretation Of The ESA Is Unreasonable And Therefore Not Entitled To Deference...109

1. A DPS Cannot Be Identified To Delist A Vertebrate Population...110

2. Designating And Delisting A DPS Of A Broader Listed Species Violates The ESA...117

C. The Delisting Of The Western Great Lakes DPS Was Contrary To The Evidence Before The Agency...127

1. Failure To Explain Why Territory Suitable For Wolf Occupation Is Not A Significant Part Of The Gray Wolf's Range...128

2. Failure To Explain Impact Of Combined Mortality Factors...132

3. Failure To Explain The Adequacy Of Non–Existent State Regulatory Schemes...133

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...134

D. Remedy...136

IV. CONCLUSION...137

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

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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 (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 protections for a population of gray wolves, which are otherwise members of an endangered species. The challenged Final Rule is predicated on both an untenable reading of the ESA and otherwise

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flawed findings. For the reasons more fully detailed below, the plaintiffs' motion is granted and the defendants and defendant-intervenor's motions are denied.

I. BACKGROUND

The issues posed by the instant suit are best understood in the context of the general statutory framework and the history of efforts to bring the gray wolf back from the brink of extinction. These subjects are examined first, followed by an overview of previous attempts by the FWS to delist the wolf population at issue and the specific facts and procedural history of this case.

A. Statutory Framework: The Endangered Species Act Of 1973

The ESA is “the most comprehensive legislation for the preservation of endangered species ever enacted by any nation” in the world. Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978) ; In re Am. Rivers & Idaho Rivers United, 372 F.3d 413, 414 (D.C.Cir.2004) (quoting id. ). The multi-faceted purpose of this landmark legislation is “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation of such endangered species and threatened species, and to take such steps as may be appropriate to achieve the purposes of the treaties and conventions” that the United States has joined to protect threatened animals and ecosystems. 16 U.S.C. § 1531(b).

The ESA's scope is broad, potentially encompassing all fish, plant and wildlife on Earth. See 16 U.S.C. § 1531. To provide guidance, Congress delegated many of the details of enforcing the ESA's...