Red Wolf Coalition v. U.S. Fish & Wildlife Serv.

• Decision Date: 28 September 2016
• Docket Number: No. 2:15-CV-42-BO,2:15-CV-42-BO
• Citation: 210 F.Supp.3d 796
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: RED WOLF COALITION, et al., Plaintiffs, v. UNITED STATES FISH AND WILDLIFE SERVICE, et al., Defendants.

210 F.Supp.3d 796

RED WOLF COALITION, et al., Plaintiffs,

v.UNITED STATES FISH AND WILDLIFE SERVICE, et al., Defendants.

No. 2:15-CV-42-BO

United States District Court, E.D. North Carolina, Northern Division.

Filed September 29, 2016

Signed September 28, 2016

Derb S. Carter, Jr., Sierra B. Weaver, Ramona H. McGee, Chapel Hill, NC, for Plaintiffs.

Christopher M. Anderson, Neal Fowler, United States Attorney's Office, Raleigh, NC, Jeremy Hessler, Lesley K. Lawrence-Hammer, Michelle-Ann Williams, United States Department of Justice, Washington, DC, for Defendants.

ORDER

TERRENCE W. BOYLE, UNITED STATES DISTRICT JUDGE

This cause comes before the Court on defendants' motion to limit the standard and scope of review and plaintiffs' motion for preliminary injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure. The motions have been fully briefed and are ripe for adjudication. A hearing was conducted on the motion for preliminary injunction before the undersigned on September 14, 2016, at Raleigh, North Carolina. For the reasons that follow, defendants' motion to limit the standard and scope of discovery is granted in part and plaintiffs' motion for preliminary injunction is granted.

BACKGROUND

I. FACTUAL BACKGROUND

This Court and the Fourth Circuit have addressed the history and background of the red wolf and the red wolf recovery program in two prior cases. See Gibbs v. Babbitt, 214 F.3d 483, 488 (4th Cir.2000) ; Gibbs v. Babbitt, 31 F.Supp.2d 531, 532 (E.D.N.C.1998), Red Wolf Coal. v. N. Carolina Wildlife Res. Comm'n, No. 2:13–CV–60–BO, 2014 WL 1922234, at *1 (E.D.N.C. May 13, 2014). The Court incorporates its earlier factual recitations by reference and provides the following summary background of the red wolf and the program initiated to recover it as alleged by plaintiffs in their second amended complaint.

The red wolf was once common in the eastern and south-central United States but its populations were destroyed by active predator control programs and the degradation of habitat. [DE 37 ¶ 70]. The red wolf was designated as endangered in 1967 under the precursor to the ESA and was declared extinct in the wild by 1980. Id. ¶¶ 71, 74. In 1987, four pairs of captive-bred red wolves were released in the Alligator River National Wildlife Refuge as an experimental population under Section 10(j) of the ESA. 16 U.S.C. § 1539(j) ; id. ¶ 75. The red wolf recovery area later was expanded to encompass approximately 1.7 million acres across five counties in eastern North Carolina. Id. ¶ 77. In 1999, the red wolf adaptive management plan was introduced and implemented by the red wolf recovery program field team, headquartered at Alligator River National Wildlife Refuge. [DE 37-12].

By the late 1990s, the wild red wolf population had grown to 100 wolves, peaking at 130 wolves in 2006. Id. ¶¶ 79-80. In June 2015, USFWS estimated that between 50 and 75 red wolves existed in the wild; the population estimate was again decreased in March 2016 to between 45 and 60 red wolves in the wild. Id. ¶¶ 82, 83. Red wolf mortalities are attributable to both natural and human causes, including gunshot and vehicle strikes. Id. ¶ 85; [DE 37-14]. The red wolf is considered to be one of the most endangered canids in the world. [DE 37-6].

The red wolf is designated as a nonessential experimental population, and Section 10(j) of the ESA provides the USFWS with flexibility in how it manages these populations in furtherance of their conservation. [DE 37 ¶¶ 41-44]. The 10(j) rules for the red wolf were adopted in 1986. Id. ¶ 45. These rules address the circumstances under which a red wolf may be taken, which term is defined by the ESA to mean "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture collect or attempt to engage in any such conduct." 16 U.S.C. § 1532(19). The red wolf 10(j) rules provide that no one may take a red wolf except in the following circumstances:

(3) Any person with a valid permit ... may take red wolves for educational purposes, scientific purposes, the enhancement of propagation or survival of the species, zoological exhibition, and other conservation purposes consistent with the Act and in accordance with applicable State fish and wildlife conservation laws and regulations;

(4)(i) Any person may take red wolves found on private land [within the red wolf recovery area], Provided that such taking is not intentional or willful, or is in defense of that person's own life or the lives of others; and that such taking is reported within 24 hours [to the appropriate party].

(ii) Any person may take red wolves found on lands owned or managed by Federal, State, or local government agencies in the areas defined in paragraphs (c)(9)(i) and (ii) of this section, Provided that such taking is incidental to lawful activities, is unavoidable, unintentional, and not exhibiting a lack of reasonable due care, or is in defense of that person's own life or the lives of others, and that such taking is reported within 24 hours ....

(iii) Any private landowner, or any other individual having his or her permission, may take red wolves found on his or her property [in the red wolf recovery area], Provided that all such harassment is by methods that are not lethal or physically injurious to the red wolf and is reported within 24 hours ....

(v) Any private landowner may take red wolves found on his or her property [in the red wolf recovery area] after efforts by project personnel to capture such animals have been abandoned, Provided that the Service project leader or biologist has approved such actions in writing and all such taking shall be reported within 24 hours ....

(vi) The provisions of paragraphs (4)(i) through (v) of this section apply to red wolves found in areas outside [the red wolf recovery area], with the exception that reporting of taking or harassment to the refuge manager, Park superintendent, or State wildlife enforcement officer, while encouraged, is not required.

(5) Any employee or agent of the Service or State conservation agency who is designated for such purposes, when acting in the course of official duties, may take a red wolf if such action is necessary to:

(i) Aid a sick, injured, or orphaned specimen;

(ii) Dispose of a dead specimen, or salvage a dead specimen which may be useful for scientific study;

(iii) Take an animal that constitutes a demonstrable but non-immediate threat to human safety, or which is responsible for depredations to lawfully present domestic animals or other personal property, if it has not been possible to otherwise eliminate such depredation or loss of personal property, Provided That such taking must be done in a humane manner, and may involve killing or injuring the animal only if it has not been possible to eliminate such threat by live capturing and releasing the specimen unharmed on the refuge or Park;

(iv) Move an animal for genetic purposes.

50 C.F.R. § 17.84(c)(3)-(5). It is further unlawful to cause a prohibited take to be committed, id. at (c)(8), and

Any animal that is determined to be in need of special care or that moves onto lands where the landowner requests their removal will be recaptured, if possible, by Service and/or Park Service and/or designated State wildlife agency personnel and will be given appropriate care. Such animals will be released back into the wild as soon as possible, unless physical or behavioral problems make it necessary to return the animals to a captive-breeding facility.

Id. at (c)(10).

II. PROCEDURAL BACKGROUND

Plaintiffs are three non-profit public interest organizations that advocate on behalf of the wild red wolf population as well as other animals which are endangered or threatened with extinction. Each plaintiff organization has members and supporters in North Carolina. Plaintiff Red Wolf Coalition specifically works with the United States Fish and Wildlife red wolf recovery program on red wolf restoration and management issues. Defendants are the United States Fish and Wildlife Service, its Director, and the appropriate regional director.

Plaintiffs originally filed their complaint for declaratory and injunctive relief in November 2015, alleging that the United States Fish and Wildlife Service (USFWS or the Service) and other defendants have violated Sections 4, 7, and 9 of the Endangered Species Act (ESA), 16 U.S.C. § 1531 et seq. , and that defendants have failed to comply with the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 -47. Plaintiffs challenge defendants' actions in authorizing the lethal or non-lethal take of red wolves on private land without first satisfying the requirements of the governing regulations and in shifting their efforts and administering the red wolf rules and regulations in a manner resulting in a failure to provide for the conservation of the wild red wolf population.

After answering plaintiffs' complaint, defendants on June 14, 2016, filed a motion to limit the standard and scope of review. On June 20, 2016, plaintiffs moved for a preliminary injunction, and on June 23, 2016, plaintiffs were permitted to file a second amended complaint without opposition from defendants.

DISCUSSION

I. MOTION TO LIMIT THE STANDARD AND SCOPE OF REVIEW

USFWS asks the Court to limit its review of plaintiffs' claims to the administrative record and to decide the claims on cross-motions for summary judgment, arguing that the Administrative Procedure Act's (APA) scope and standard of review apply to plaintiffs' claims under the ESA and NEPA, that discovery outside the administrative record should not be allowed, and that the APA standard of review – whether USFWS' actions were arbitrary, capricious, an abuse of discretion, or otherwise contrary to law – is applicable. 5 U.S.C. §§ 706 ; 706(2)(A).

Plaintiffs do not challenge the red wolf rules or regulations themselves. Rather, plaintiffs challenge the way in which the Service is currently interpreting and implementing the governing rules and regulations. Five of plaintiffs' six claims...