Humane Society of U.S. v. Kempthorne

• Citation: 481 F.Supp.2d 53
• Decision Date: 09 August 2006
• Docket Number: No. CIV.A. 06-1279(CKK).,CIV.A. 06-1279(CKK).
• Parties: HUMANE SOCIETY OF THE UNITED STATES, et al., Plaintiffs, v. Dirk KEMPTHORNE, Secretary of the Interior, et al., Defendants.
• Court: U.S. District Court — District of Columbia

Page 53

481 F.Supp.2d 53

HUMANE SOCIETY OF THE UNITED STATES, et al., Plaintiffs, v. Dirk KEMPTHORNE, Secretary of the Interior, et al., Defendants.

No. CIV.A. 06-1279(CKK).

United States District Court, District of Columbia.

August 9, 2006.

Patricia R. Lane, Humane Society of the United States, Gaithersburg, MD, Sanne H. Knudsen, Faegre & Benson LLP, Minneapolis, MN, for Plaintiffs.

Jimmy A. Rodriguez, U.S. Department of Justice, Anna Margo Seidman, Safari Club International, Washington, DC, for Defendants.

MEMORANDUM OPINION

KOLLAR-KOTELLY, District Judge.

The gray wolf (Canis lupus) is classified as an endangered species in the state of Wisconsin and throughout all but one of the remaining coterminous United States. At issue in the instant case is the legality of a lethal depredation control program allowing up to forty-three endangered wolves to be killed in Wisconsin pursuant to a permit issued by the United States Fish and Wildlife Service ("FWS") with the purpose of fostering greater social tolerance for wolves.

Plaintiffs The Humane Society of the United States, Animal Protection Institute, Friends of Animals and Their Environment ("FATE"), Help Our Wolves Live ("HOWL"), Indigenous Environmental Network, Klamath Forest Alliance, and RESTORE: The North Woods filed a Complaint on July 19, 2006 for injunctive and declaratory relief against Defendants Dirk Kempthorne in his capacity as Secretary of the Interior, the United States Department of the Interior, H. Dale Hall in his capacity as Director of FWS, and FWS. Presently before the Court is the [5] Motion for Preliminary Injunction filed by Plaintiffs on July 25, 2006, requesting that the Court enjoin Defendants, their employees, agents, and all others acting in concert or participation with Defendants from allowing the killing of gray wolves pursuant to the lethal depredation control provisions of Permit No. TE111360-0, and that the Court direct FWS to immediately stop the Wisconsin Department of Natural Resources, its employees, agents, and any and all others acting in concert or participation with it, from any further killing of gray wolves pursuant to the lethal depredation control provisions of the same.

The Parties participated in a conference call on the record on July 26, 2006. Defendants filed an Opposition to Plaintiffs' Motion for Preliminary Injunction on August 1, 2006. Additionally, Safari Club International and Safari Club International Foundation filed a Motion to Intervene, which the Court has granted as of right, and an Opposition to Plaintiffs' Motion for Preliminary Injunction. Plaintiffs filed a Reply on August 3, 2006. After considering all of the aforementioned filings, the relevant statutes and case law, and the administrative record, the Court shall GRANT Plaintiffs' Motion for Preliminary Injunction. Based on the foregoing analysis, the Court concludes that Plaintiffs have demonstrated a substantial likelihood of success on the merits that a lethal depredation control program applied to an endangered species contravenes the plain meaning and clear intent of Congress as set forth in Section 10(a)(1)(A) of the Endangered Species Act. Plaintiffs have additionally demonstrated irreparable injury, shown that the issuance of a preliminary injunction would on balance cause minimal harm to Defendants and Defendant-Intervenors, and demonstrated that the public interest supports granting preliminary injunctive relief.

I: BACKGROUND

A. The Endangered Species Act

"[T]he Endangered Species Act of 1973 represented the most comprehensive legislation for the preservation of endangered species ever enacted by any nation." Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978) (hereinafter "TVA v. Hill"). "`The plain intent of Congress in enacting this statute,' we recognized, `was to halt and reverse the trend toward species extinction, whatever the cost. This is reflected not only in the stated policies of the Act, but in literally every section of the statute.'" Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 699, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995) (quoting TVA v. Hill, 437 U.S. at 184, 98 S.Ct. 2279). The ESA further includes a congressional mandate to federal agencies, including the statement that "[i]t is further declared to be the policy of Congress that all Federal departments and agencies shall seek to conserve endangered species and threatened species and shall utilize their authorities in furtherance of the purposes of this chapter." 16 U.S.C.A. § 1531(c)(1) (emphasis added). To "conserve" is defined pursuant to 16 U.S.C. § 1532(3) as "to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking." 16 U.S.C. § 1532(3) (emphasis added).

The ESA allows the Secretary of the Interior to designate certain species of animal life as having protected status. 16 U.S.C. § 1533(a)(1). See also TVA v. Hill, 437 U.S. at 159-60, 98 S.Ct. 2279; Rancho Viejo, LLC v. Norton, 323 F.3d 1062, 1064 (D.C.Cir.2003). There are three different categories of federally-protected species under the ESA-endangered species, threatened species, and experimental populations. Endangered species are defined pursuant to 16 U.S.C. § 1532(6) as "any species which is in danger of extinction throughout all or a significant portion of its range other than a species of the Class Insecta determined by the Secretary to constitute a pest whose protection under the provisions of this chapter would present an overwhelming and overriding risk to man." 16 U.S.C. § 1532(6). Threatened species are defined pursuant to 16 U.S.C. § 1532(20) as "any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." 16 U.S.C. § 1532(20). And experimental populations, sometime referred to as "10(j)" populations, are defined pursuant to 16 U.S.C. § 1539(j) and are treated similarly to threatened species with some defined exceptions. See 16 U.S.C. § 1539(j). Endangered species are afforded the highest level of protection of any species classification. See TVA v. Hill, 437 U.S. at 174, 98 S.Ct. 2279 ("[E]xamination of the language, history, and structure of the [ESA] indicates beyond doubt that Congress intended endangered species to be afforded the highest of priorities.").

Section 9 of the ESA makes it unlawful to "take any [endangered] species within the United States or the territorial sea of the United States." 16 U.S.C. § 1538(a)(1)(B). To "take" an endangered species is defined by the ESA to include "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. § 1532(19). Pursuant to Section 10(a)(1)(A) of the ESA, 16 U.S.C. § 1539(a)(1)(A), the Secretary of the Interior "may permit, under such terms and conditions as he shall prescribe-any act otherwise prohibited by [Section 9] of this title for scientific purposes or to enhance the propagation or survival of the affected species, including, but not limited to, acts necessary for the establishment and maintenance of experimental populations pursuant to subsection (j) of this section." Section 10(a)(1)(A) permits are generally referred to as either "scientific" or "recovery" permits. See Nat'l Ass'n of Home Builders v. Norton, 298 F.Supp.2d 68, 72 (D.D.C.2003), aff'd, 415 F.3d 8 (D.C.Cir. 2005). Regulations have been issued by the FWS which set forth the factors that the FWS "shall" consider when determining whether to issue a Section 10(a)(1)(A) permit:

(i) Whether the purpose for which the permit is required is adequate to justify removing from the wild or otherwise changing the status of the wildlife sought to be covered by the permit;

(ii) The probable direct and indirect effect which issuing the permit would have on the wild populations of the wildlife sought to be covered by the permit;

(iii) Whether the permit, if issued, would in any way, directly or indirectly, conflict with any known program intended to enhance the survival probabilities of the population from which the wildlife sought to be covered by the permit was or would be removed;

(iv) Whether the purpose for which the permit is required would be likely to reduce the threat of extinction facing the species of wildlife sought to be covered by the permit;

(v) The opinions or views of scientists or other persons or organizations having expertise concerning the wildlife or other matters germane to the application; and

(vi) Whether the expertise, facilities, or other resources available to the applicant appear adequate to successfully accomplish the objectives stated in the application.

50 C.F.R. § 17.22(a)(2). The Court notes that these regulations are not at issue in the instant case (in other words, Plaintiffs do not contend that Defendants arbitrarily and capriciously applied such regulations in the issuance of the permit in question), but rather Plaintiffs contend that the authorization of a lethal depredation control program is contrary to Section 10(a)(1)(A) itself.

B. The Endangered Gray Wolf

On March 9, 1978, the gray wolf was listed as an endangered species throughout the coterminous United States, with the exception of Minnesota where the gray wolf was classified as threatened. See Pls.' Mem. Prelim. Inj. at 3; Defs.' Opp'n at 6 (citing 43 Fed.Reg. 9607 (March 9, 1978)); Final Rule to Reclassify...