WildEarth Guardians v. U.S. Fish & Wildlife Serv.

Decision Date26 October 2018
Docket NumberLead Case No. CV 16-65-M-DWM,Member Case No. CV 17-99-M-DWM
Citation342 F.Supp.3d 1047
Parties WILDEARTH GUARDIANS, Plaintiff, and Center for Biological Diversity, Consolidated-Plaintiff, v. UNITED STATES FISH & WILDLIFE SERVICE; et al., Defendants, and Montana Trappers Association, National Trappers Association, and Fur Information Council of America, Defendant-Intervenors.
CourtU.S. District Court — District of Montana

Peter M.K. Frost, Western Environmental Law Center, Eugene, OR, Kristine Marie Akland, Akland Law Firm, PLLC, Missoula, MT, Sarah Uhlemann, Tanya M. Sanerib, Seattle, WA, for Plaintiff

Melenaniikeawakea Coleman, U.S. Department of Justice - E.N.R.D. General Litigation, Travis J. Annatoyn, United States Department of Justice, Washington, DC, for Defendants

Gary R. Leistico, St. Cloud, MN, Ira T. Kasdan, Kelly Drye & Warren LLP, Washington, DC, Kathleen L. DeSoto, Garlington Lohn & Robinson, PLLP, W. Carl Mendenhall, Ronald A. Bender, Missoula, MT, for Defendant-Intervenors

ORDER

Donald W. Molloy, District Judge United States District Court

Plaintiffs WildEarth Guardians and the Center for Biological Diversity (collectively "Plaintiffs") seek declaratory and injunctive relief against the United States Fish and Wildlife Service and related officials and entities (collectively the "Service") for violating the National Environmental Policy Act ("NEPA") and the Endangered Species Act ("ESA") in their administration of a wildlife export program under the Convention on International Trade in Endangered Species ("CITES").2 Because the continued administration of the CITES Program does not amount to "major Federal action" triggering NEPA, summary judgment is granted in favor of the Service on Plaintiffs' NEPA claims. Plaintiffs prevail, however, on their ESA claims because the incidental take statement for Canada lynx does not set adequate triggers and fails to minimize take.

BACKGROUND
I. CITES

CITES is an international agreement governing trade in imperiled species of flora and fauna. 27 U.S.T. 1087. Currently, there are 183 parties to the Convention, which the United States joined in 1975. AR00004. In the United States, the Service functions as both management and scientific authority for administering CITES, 16 U.S.C. § 1537a(a), and has used its rulemaking authority under the ESA, 16 U.S.C. § 1540(f), to promulgate implementing regulations, 50 C.F.R. §§ 23.1 – 23.92. These regulations include prohibitions on the import or export of CITES-listed animals, live or dead, whether whole or part, unless expressly authorized by valid CITES documents or specifically exempted from CITES documentation requirements. 50 C.F.R. § 23.13(a).

The Service maintains a tagging and permitting system to control and facilitate the export of certain species. Animal species covered by CITES are listed in three Appendices. Appendix I is comprised of species threatened with extinction that are or may be affected by trade. CITES, art. II(1). CITES strictly bans all commercial, international trade in Appendix I species, but allows for some scientific and zoological non-commercial trade. Id. at art. III(1)(3). Appendix II is comprised of species that are not presently threatened with extinction, but may become so if their trade is not regulated. Id. at art. II(2). Appendix II includes species in which trade is controlled to avoid utilization incompatible with their survival, or with the survival of Appendix I species because of factors such as similarity of appearance to other species. Id. International trade in these species is prohibited unless subject to a valid CITES export permit. Id. at art. IV. Appendix III is comprised of species protected in at least one member country when the country has asked other CITES parties to assist it in controlling trade in those species. Id. at art. II(3). All international trade in Appendix III species is prohibited unless subject to a valid CITES export permit. Id. at art. V.

In 2007, the Service issued regulations implementing the CITES program for certain Appendix II species in the United States, including bobcats, gray wolves, river otters, Canada lynx, and brown (grizzly) bears. 72 Fed. Reg. 48, 402 (Aug. 23, 2007); 50 C.F.R. § 23.69. Certain requirements must be met before these species can be exported from the United States. Specifically, the Service must determine that the export will not be "detrimental to the survival of the species," including finding that (1) harvest of the animals is sustainable and (2) the specimen to be exported was legally obtained. 50 C.F.R. §§ 23.61(a), 23.60. "Detrimental activities" include "unsustainable use and any activities that would pose a net harm to the status of the species in the wild." 50 C.F.R. § 23.61(b). In making a "non-detriment finding," the Service must consider whether the proposed activity is sustainable use, prevents over-utilization of the species, poses harm to the status of the species in the wild, leads to long-term declines, or leads to significant habitat or range loss or restriction. 50 C.F.R. § 23.61(c). The Service's findings must be based "on the best available biological information." 50 C.F.R. § 23.61(f).

Since the late 1970s, the Service has allowed states and tribes to apply for the opportunity to directly distribute CITES tags to individual hunters and trappers under the CITES Program. 50 C.F.R. § 23.69(b). To participate, interested states and tribes must submit information on population condition, harvest control measures, total allowable harvest, tagging or marking requirements, habitat status, and any management plans for the species in the state or tribal area. 50 C.F.R. § 23.69(b)(1). "A State or Tribe must provide sufficient information for [the Service] to determine that its management program and harvest controls are appropriate to ensure that CITES furbearers harvested within its jurisdiction are legally acquiredand that export will not be detrimental to the survival of the species in the wild." AR000008. The state or tribe must also submit annual "activity reports" on the effects of the Program. 50 C.F.R. § 23.69(b)(3).

The Service annually distributes export tags to approved states and tribes, which are then distributed to trappers, hunters, or other individuals seeking to export furbearer species.3 To be eligible for export, Appendix II furbearer species' skins and pelts must be tagged with serially unique and non-removable CITES tags. 50 C.F.R. § 23.69(c). Properly tagged skins and pelts may then be exported from the United States through designated wildlife ports. Id. Under this export system, the states and tribes regulate harvest and domestic trade of species, providing information to the Service for continued participation in international trade. AR00020. The Service's role is limited to the regulation of international export, ensuring CITES is implemented and enforced. Id. The record contains hundreds of pages of approval documents for various state and tribal programs, AR02173–355, and thousands of records of approved states' and tribes' annual reports, AR02679–20305.

In the recent past, commercial exportation of wild bobcats, river otters, gray wolves, Canada lynx, and brown bears total:

 Species 2012 2013 2014 2015
                   Bobcats        51,472   65,603   57,405   30,312
                   River otters   22,327   33,461   26,329   10,365
                   Gray wolves    16       19       2        16
                   Brown bears    4        4        3        3
                   Lynx           2,996    3,425    1,781    331
                   Total 76,815 102,512 85,520 41,027
                

(Doc. 97 at ¶ 1.) These species are discussed individually below.

Gray Wolves. Gray wolves were listed as endangered under the ESA in 1978, 43 Fed. Reg. 9,607 (Mar. 9, 1978), and included in the CITES Appendix II in 1979, AR00169. Pursuant to congressional rider, the Northern Rocky Mountain wolf population, including wolves in Montana, were removed from the ESA listing in 2011. 76 Fed. Reg. 25,590 (May 5, 2011). Only Montana and Alaska are approved for wolf exports. AR00011, 14 190. Alaska has reported no recent significant changes in its gray wolf abundance and Montana has reported that its "gray wolf population is healthy and stable," with population numbers above recovery goals. AR00014.

Bobcats. Bobcats were included in CITES Appendix II in 1977. AR00161. The Service has approved 41 states and 32 tribes for bobcat exports under CITES. AR00017, 19, 187. The nationwide bobcat population is estimated to have increased since 1981, remaining stable since 2010. AR00013. There is a nation-wide non-detriment finding for bobcat. AR00025.

River Otters. The river otter was included in Appendix II in 1977. AR00167. The Service has approved 40 states and 16 tribes for river otter export under CITES. AR00018, 20, 189. There is also a nation-wide non-detriment finding for river otter. AR00025.

Canada lynx. Canada lynx were included in Appendix II in 1977. AR00165. In 2000, the Service listed the distinct population segment of Canada lynx in the contiguous United States as threatened with extinction under the ESA. 65 Fed. Reg. 16,052 (Mar. 24, 2000). In Alaska, where lynx are not listed under the ESA, harvest of lynx is allowed. AR00014, 188. Alaska, however, has reported no significant change in Canada lynx abundance. AR00014. In the contiguous United States, bobcat trapping has resulted in incidental take of lynx. AR21077. The Service has approved bobcat pelt exports from 14 states and three tribal areas that include habitat for ESA-listed lynx. AR20992.

Brown bears. Brown (or grizzly) bears were listed in Appendix II in 1979. AR00163. Alaska is the only state approved for export of brown bears. AR00186.

II. Procedural and Administrative History

This action was originally filed as a NEPA challenge by Plaintiff WildEarth Guardians ("WildEarth") in May 2016. (Doc. 1.) However, in December 2016, the parties moved for a joint stay of the proceedings, pending the Service's decision to undertake the NEPA process and...

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