Defenders of Wildlife v. Salazar , 68 F. Supp. 3d 193 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
DEFENDERS OF WILDLIFE, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 12-1833 (ABJ)
)
SALLY JEWELL, et al., )
)
Defendants. )
____________________________________)
)
THE HUMANE SOCIETY OF )
THE UNITED STATES, et al., )
)
Plaintiffs, )
)
v. ) consolidated with
) Civil Action No. 12-1965 (ABJ)
U.S. FISH AND WILDLIFE )
SERVICE, et al., )
)
Defendants. )
____________________________________)
MEMORANDUM OPINION
This case concerns the government’s decision to remove the gray wolf in Wyoming from
the endangered species list. Plaintiffs Center for Biological Diversity, Defenders of Wildlife,
Fund for Animals, Humane Society of the United States, Natural Resources Defense Council,
and Sierra Club, in this consolidated case, challenge the September 30, 2012 decision of the
United States Fish and Wildlife Service (“FWS” or “the Service”) to remove the wolves from the
list under the Endangered Species Act (“ESA” or “the Act”). See Final Rule: Removal of the
Gray Wolf in Wyoming from the Federal List of Endangered and Threatened Wildlife, 77 Fed.
Reg. 55,530 (Sept. 10, 2012) (“the 2012 rule”). The 2012 rule transferred management of the
gray wolf in Wyoming from federal control to state control. Id.Plaintiffs have moved for summary judgment, and they maintain that the decision was
arbitrary and capricious because Wyoming’s regulatory mechanisms are inadequate to protect
the species, the level of genetic exchange shown in the record does not warrant delisting, and the
gray wolf is endangered within a significant portion of its range. Pls.’ Mot. for Summ. J. [Dkt.
# 48] (“Pls.’ Mot.”) and Pls.’ Mem. of P. & A. in Supp. of Mot. for Summ. J. [Dkt. # 48-1]
(“Pls.’ Mem.”).
The Court will grant plaintiffs’ motion for summary judgment in part and deny it in part
and remand the matter back to the agency because it finds that the Service could not reasonably
rely on unenforceable representations when it deemed Wyoming’s regulatory mechanisms to be
adequate. Given the level of genetic exchange reflected in the record, the Court will not disturb
the finding that the species has recovered, and it will not overturn the agency’s determination
that the species is not endangered or threatened within a significant portion of its range. But the
Court concludes that it was arbitrary and capricious for the Service to rely on the state’s
nonbinding promises to maintain a particular number of wolves when the availability of that
specific numerical buffer was such a critical aspect of the delisting decision.
BACKGROUND
I. Statutory Background
Congress passed the ESA in 1973 “to provide a means whereby the ecosystems upon
which endangered species and threatened species depend may be conserved, [and] to provide a
program for the conservation of such endangered species and threatened species.” 16 U.S.C.
§ 1531(b). An “endangered species” means any species that is “in danger of extinction
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throughout all or a significant portion of its range,” while a “threatened species” means any
species that is “likely to become an endangered species within the foreseeable future throughout
all or a significant portion of its range.” Id. § 1532(6), (20). The Secretaries of the Interior and
Commerce are required to publish and maintain a list of all species determined to be endangered
or threatened. Id. § 1533(c)(1). “The Secretaries have delegated this authority to FWS and the
National Marine Fisheries Service, depending on the species at issue.” In re Polar Bear
Endangered Species Act Listing and Section 4(d) Rule Litigation, 709 F.3d 1, 3 (D.C. Cir. 2013),
citing 50 C.F.R. § 402.01(b).
The decision to list or delist a species under the ESA is governed by section 1533 of the
Act. That section sets forth five factors the agency must consider when determining whether a
species is endangered or threatened: “(A) the present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or
educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its continued existence.”
16 U.S.C. § 1533(a)(1). The agency must base its decision to list or delist a species “solely on
the basis of the best scientific and commercial data available . . . after conducting a review of the
status of the species and after taking into account those efforts, if any, being made by any State
or foreign nation . . . to protect such species, whether by predator control, protection of habitat
and food supply, or other conservation practices . . . .” Id. § 1533(b)(1)(A).
II. Factual and Procedural Background
A. Gray Wolves
Gray wolves have a complex and contentious history in the American west and northern
Rocky Mountain (“NRM”) region. Federal and state legislators and regulators have endeavored
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to harmonize demands that they manage the gray wolf population with efforts to maintain
species viability as required under the ESA. See, e.g., 16 U.S.C. § 1533(a)(1); 77 Fed. Reg.
55,530; Wyo. Stat. Ann. § 23-1-103 (2013). The geographic range of the species once spanned
nearly all of North America, but its reach and population declined over time. See 77 Fed. Reg. at
55,535; Pls.’ Statement of Facts [Dkt. # 48-2] (“Pls.’ SOF”) ¶ 4. This was due in large part to
human-caused mortality of wolves, which remains “the most significant factor affecting the long
term conservation status of the wolf population.” 77 Fed. Reg. at 55,553. By 1930, gray wolves
were largely exterminated in the western United States. Pls.’ SOF ¶ 5; Fed. Defs.’ Statement of
Facts [Dkt. # 56-1] (“Fed. Defs.’ SOF”) ¶ 8. The most recent data suggests that there are now
1,774 gray wolves and approximately 109 breeding pairs in the northern Rocky Mountain region.
77 Fed. Reg. at 55,552; Pls.’ SOF ¶ 11; Fed. Defs.’ SOF ¶ 23.
Since the federal government has been involved with managing the gray wolf as an
endangered species in and around Wyoming for decades, the traits and habitat of the gray wolf
have been extensively researched. Gray wolves prey primarily on medium and large mammals,
including elk, various species of deer, and other large, hoofed mammals. 77 Fed. Reg. at 55,535.
They live in roaming packs that can include from two to twelve wolves, and each pack typically
includes a breeding pair, defined as a male and female wolf capable of breeding offspring. Id.
Litters are usually born in April, and in most years, eighty percent of pups survive until winter.
Id.
B. Federal Management of the Gray Wolf and Delisting in the Northern Rocky
Mountain Region
1. Recovery Efforts
The Service first designated the gray wolf in the northern Rocky Mountain region as
endangered under the Act in 1973, and in 1980, it developed a recovery plan for wolves in the
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region. 77 Fed. Reg. at 55,531; Pls.’ SOF ¶ 8; Fed. Defs.’ SOF ¶ 8. In 1987, FWS identified
three recovery areas in the NRM most likely to support a recovered wolf population:
northwestern Montana, central Idaho, and the Yellowstone National Park (“YNP”) area of
northwest Wyoming. 1 Fed. Defs.’ SOF ¶ 10, citing AR 309 2 at 6995–97, 7027; Pls.’ SOF ¶ 8.
The Service also established a recovery goal of a minimum of ten breeding pairs – defined as
two wolves of the opposite sex and of an age capable of producing young – for a minimum of
three consecutive years in each of the three recovery areas, for a total of thirty breeding pairs. 77
Fed. Reg. at 55,536; Fed. Defs.’ SOF ¶ 10; Pls.’ SOF ¶ 8.
In 1994, the Service revised the NRM recovery goal. It revised the definition of breeding
pair 3 and added a genetic exchange component to the numeric recovery goal:
Thirty or more breeding pairs comprising some 300+ wolves in a
metapopulation (a population that exists as partially isolated sets of
subpopulations) with genetic exchange between subpopulations should
have a high probability of long term persistence.
1 Northwestern Montana is comprised of Glacier National Park; the Great Bear, Bob
Marshall, and Lincoln Scapegoat Wilderness Areas; and adjacent public and private lands.
Central Idaho is comprised of Selway-Bitterroot, Gospel Hump, Frank Church River of No
Return, and Sawtooth Wilderness Areas; and adjacent, mostly federal, lands. The YNP area
includes the Absaroka-Beartooth, North Absaroka, Washakie, and Teton Wilderness Areas; and
adjacent public and private lands. 77 Fed. Reg. at 55,536.
2 Federal defendants filed the administrative record for this case on May 9, 2013. See
Notice of Filing Administrative Record [Dkt. # 40]. Documents in the record relating to the
2012 delisting rule are Bates stamped with the “WY2012-” precursor followed by the Bates
number. When referring to a document in the administrative record, the Court will use “AR” and
the Bates number of the document.
3 It redefined breeding pair to mean an adult male and an adult female wolf that have
produced at least two pups that survived until December 31 of the year of their birth, during the
previous breeding season. 77 Fed. Reg. at 55,536.
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77 Fed. Reg. at 55,536; see Fed. Defs.’ SOF ¶ 12; Pls.’ SOF ¶ 9. The Service indicated that it
would be preferable if this genetic exchange were to be natural, but it authorized human
assistance if necessary. 77 Fed. Reg. at 55,536–37.
The Service also designated two “nonessential experimental population recovery areas”
under section 10(j) of the ESA to facilitate recovery and reintroduction efforts, one of which was
the Greater Yellowstone Area (“GYA”). Fed. Defs.’ SOF ¶ 11. The GYA recovery area
includes portions of southeastern Montana, eastern Idaho, and northwestern Wyoming, including
Yellowstone National Park, Grand Teton National Park, wilderness areas, forest land, and other
public and private lands. 77 Fed. Reg. at 55,542. The GYA comprises “one of the largest
contiguous blocks of suitable habitat within the [northern Rockies] region.” 77 Fed. Reg. at
55,577; Pls.’ SOF ¶ 12; see Fed. Defs.’ SOF ¶ 14.
In 2000, the NRM wolf population reached the recovery goal of thirty breeding pairs and
300 wolves for the first time. 77 Fed. Reg. at 55,531. In 2002, FWS conducted a peer review of
the 1994 recovery plan, which reaffirmed the plan and its recovery goals. 77 Fed. Reg. at
55,537. After 2002, the Service began looking at individual states as well as the previously
identified recovery areas to measure progress because Montana, Idaho, and Wyoming each
contain the “vast majority of one of the original three core recovery areas.” Id.; see Pls.’ SOF ¶
9; Fed. Defs.’ SOF ¶ 16.
2. The 2003 Rule and Efforts to Delist in Wyoming
In 2003, after finding that gray wolf populations had recovered from the threat of
extinction, FWS reclassified and delisted the gray wolf incrementally across three distinct
population segments (“DPSs”). 77 Fed. Reg. at 55,531, citing 68 Fed. Reg. 15,804 (Apr. 1,
2003). This final rule was challenged and overturned. Id. The courts found that it was improper
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for the Service to downlist from endangered to threatened entire population segments based only
on the viability of a core population. Id., citing Defenders of Wildlife v. Sec’y, Dep’t of Interior,
354 F. Supp. 2d 1156, 1172 (D. Or. 2005); Nat’l Wildlife Fed’n v. Norton, 386 F. Supp. 2d 553,
566 (D. Vt. 2005).
Also in 2003, the Service published an advanced notice of proposed rulemaking specific
to the western DPS, which includes the northern Rocky Mountain region, stating its intent to
delist the species because the recovery goal had been satisfied. 77 Fed. Reg. at 55,531, citing 68
Fed. Reg. 15,876 (Apr. 1, 2003). The notice explained that delisting would require the Service to
consider threats to the species and what the states would put in place to address those threats. Id.In 2004, FWS determined that Idaho’s and Montana’s wolf management plans met the baseline
requirements for delisting, but Wyoming’s did not. Id. Wyoming challenged this rule in court,
but the case was resolved on procedural grounds. 77 Fed. Reg. at 55,531–32.
Following this, in 2005, Wyoming petitioned the Service to delist the gray wolf by
recognizing a separate DPS for the northern Rocky Mountain region. 77 Fed. Reg. at 55,532.
The Service denied this petition because it found that Wyoming’s 2003 measures still did not
provide adequate protection for its portion of the wolf population. Id., citing 71 Fed. Reg.
43,410 (Aug. 1, 2006). Wyoming contested this finding in federal court, but the challenge was
rendered moot in 2007, after the state amended its regulations and management plan. Id.
3. The 2008 Rule
Upon review of Wyoming’s revised statutes and regulations, FWS promulgated a final
rule recognizing the northern Rocky Mountain DPS and delisting the gray wolf in the NRM, this
time including Wyoming. Id., citing 73 Fed. Reg. 10,514 (Feb. 27, 2008) (the “2008 rule”). A
number of environmental groups challenged the 2008 rule in federal court, and the U.S. District
Court for the District of Montana enjoined the rule on grounds that FWS’s approval of
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Wyoming’s wolf management plan was arbitrary and capricious. Defenders of Wildlife v. Hall,
565 F. Supp. 2d 1160, 1174–75 (D. Mont. 2008) (granting preliminary injunction because of lack
of evidence of genetic exchange between wolf subpopulations, because Wyoming did not
commit to manage for 15 breeding pairs, and because the state’s trophy game area, where wolves
are managed as game animals subject to mortality quotas, was not fixed or permanent). The gray
wolf reverted back to federal protection under the ESA for the entire NRM as a result. See 77
Fed. Reg. at 55,532.
4. The 2009 Rule
Following the court ruling, FWS initiated another rulemaking, and in 2009, it
promulgated a rule delisting the gray wolf in Idaho and Montana but not in Wyoming. Id., citing
74 Fed. Reg. 15,123 (Apr. 2, 2009) (the “2009 rule”). The agency again found Wyoming’s wolf
management plan to be inadequate to meet ESA delisting recovery requirements, and it
recommended that the entire state be designated as a “trophy game area.” 4 Id.; Fed. Defs.’ SOF
¶ 26; Pls.’ SOF ¶ 19. Environmental groups challenged the 2009 rule, and the U.S. District
Court for the District of Montana vacated it. 77 Fed. Reg. at 55,532; Defenders of Wildlife v.
Salazar, 729 F. Supp. 2d 1207, 1228 (D. Mont. 2010) (holding that the agency could not delist
the species for only part of the DPS). Following this decision, Congress passed legislation
requiring FWS to reissue the 2009 rule. 77 Fed. Reg. 55,532–33; Fed. Defs.’ SOF ¶ 27. FWS
complied, delisting the species in Idaho and Montana and leaving Wyoming as the only NRM
state subject to ESA management requirements. 77 Fed. Reg. at 55,533, citing 76 Fed. Reg.
25,590 (May 5, 2011).
4 Wolves located in a designated trophy game area may be hunted as regulated by the
Wyoming Game and Fish Commissions and Wyoming Game and Fish Department, which
provide for methods of take, hunting seasons, and numbers of wolves that can be killed. 77 Fed.
Reg. at 55,535, 55,558; see also Pls.’ SOF ¶ 19 (explaining that wolves in the trophy game area
are subject to regulated hunting seasons, bag limits, and authorized hunting methods).
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At the same time, Wyoming challenged the fact that it was not delisted in 2009, and the
U.S. District Court for the District of Wyoming ruled in favor of Wyoming. Wyoming v. U.S.
Dep’t. of Interior, 2010 WL 4814950, Nos. 09-CV-118J, 09-CV-138J, at *45 (D. Wyo. Nov. 18,
2010). The court rejected the Service’s recommendation that the whole state be designated a
trophy game area, and it remanded the rule back to the agency to reconsider whether Wyoming’s
regulatory framework would maintain its share of a recovered wolf population and provide
adequate genetic connectivity. Id.; 77 Fed. Reg. at 55,533.
5. The 2012 Rule
In light of the 2010 decision from the District of Wyoming, FWS and Wyoming
embarked on an effort to establish a regulatory regime within the state that would support
delisting. 77 Fed. Reg. at 55,533. Their discussions were designed to address a series of
concerns identified by the Service:
(1) The size and permanency of the Trophy Area; (2) conflicting language
within the State statutes concerning whether Wyoming would manage for
at least 15 breeding pairs and at least 150 wolves, exactly 15 breeding
pairs and 150 wolves, or only 7 breeding pairs and 70 wolves; and (3)
liberal depredation control authorizations and legislative mandates to
aggressively manage the population down to minimum levels.
Id.
Wyoming revised its statutes and regulations as a result. It amended its statutes to make
the “trophy game area” – where wolves would be managed as game animals and subject to
regulated hunting – permanent in the northwest portion of the state. Id. It also amended its
statute to require the state “to reasonably ensure at least ten (10) breeding pairs of gray wolves
and a total of at least one hundred (100) individual gray wolves are located in this state outside of
Yellowstone National Park and the Wind River Indian Reservation at the end of the current
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calendar year.” Wyo. Stat. Ann. § 23-1-304(a); 77 Fed. Reg. at 55,535. Further, the state
revised its regulations governing the taking of wolves. 77 Fed. Reg. at 55,535.
In light of these amendments, on October 5, 2011, the Service issued a proposed rule to
delist the species in the state. 77 Fed. Reg. at 55,543, citing 76 Fed. Reg. 61,782 (Oct. 5, 2011);
Fed. Defs.’ SOF ¶ 34. As part of this process, the Service commissioned a third-party peer
review of the proposed rule, which involved five independently appointed scientists who
conducted two reviews. 77 Fed. Reg. at 55,543, citing AR 855; AR 718–852; AR 853–953.
The first review of the newly enacted laws and regulations produced a set of conflicting
opinions. Three of the five scientists found that Wyoming’s framework “followed the scientific
literature and appropriate standards.” AR 858. Two dissenting scientists, Dr. Mills and Dr.
Vucetich, found the references in the state’s materials to a minimum population “buffer” above
the minimum number of wolves to be protected problematic because that buffer was vague and
undefined. AR 860. Additionally, Dr. Vucetich contended that the plan lacked detail. AR 861.
The peer review included a recommendation that Wyoming “fully explain how a monitoring
program would allow swift corrective action to halt harvest . . . in the absence of a specified
numerical buffer.” AR 862.
Wyoming responded to the initial peer review by issuing an Addendum to its Wyoming
Gray Wolf and Management Plan (“the Addendum”). Fed. Defs.’ SOF ¶ 37; AR 878. The
Addendum is a nine-page document that describes the state’s intention to consider various causes
of wolf mortality in population management. 77 Fed. Reg. at 55,600; AR 877–885. It was
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presented as a “clarification” of the state’s “commit[ment] to manage for a recovered, stable, and
sustainable wolf population.” AR 878. 5
The peer reviewers then conducted a second review that focused on the Addendum. AR
866. This review addressed “solely . . . whether the major issues previously raised by the panel
have been sufficiently addressed.” Id. (emphasis in original). Responses from the second review
split along the same lines as the first. The same three scientists who approved Wyoming’s
framework in the first review were “fully assured” upon reviewing the Addendum “that the
documents are well-prepared, based on the best available science (with a few minor suggested
additions), and will support continued recovery of the population.” AR 855; Fed. Defs.’ SOF
¶ 39. Drs. Mills and Vucetich took issue with the lack of a specific numeric buffer as in the first
review, and Dr. Vucetich maintained his position that the risk involved was undefined and that
amendments to the state’s wolf management program were cosmetic and lacked detail. AR 861–
62.
FWS incorporated Wyoming’s amendments and peer review into its proposed rule and
provided for a public notice and comment period. 77 Fed. Reg. at 55,543. The 100-day period
concluded before Wyoming’s amendments were finalized, so FWS reopened public comment on
5 The Addendum includes five primary components: (1) buffer management; (2) adaptive
management; (3) genetics monitoring and management; (4) wolf mortality management; and (5)
human-caused mortality rate estimation. AR 879–83. Part 1 of the Addendum provides that “a
positive buffer is inherently built into [the] management and decision making processes” and
lists several reasons why maintaining a recovery level wolf population will be in the state’s
interest and capacity. AR 879–880. The state’s adaptive management plan, discussed in Part 2,
refers to the state’s procedure for making annual adjustments to hunting guidelines during each
“annual season setting process.” AR 881. Part 3 of the Addendum discusses the state’s goal to
monitor and continually address the wolf population to uphold a minimum threshold of genetic
connectivity across subpopulations. Parts 4 and 5 pertain to managing wolf mortality rates and
emphasize the state’s ability to limit wolf mortality through regulation – for example, by
restricting hunting permits if necessary. AR 883–84.
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May 1, 2012 for fifteen days. Id. FWS received approximately 250,000 comments, and it has
stated that it gave “the same review and consideration” to all comments. 77 Fed. Reg. at 55,545.
Ultimately, FWS concluded that the changes to the state’s regulatory framework
supported delisting the gray wolf in Wyoming. See, e.g., 77 Fed. Reg. at 55,545, 55,569,
55,552–53 (pointing to the establishment of a permanent trophy area, the seasonal expansion of
the trophy area to protect dispersing wolves, the commitment to meeting the minimum recovery
goal and to maintain a buffer above these minimum levels, plans to monitor and manage to
provide adequate levels of genetic exchange, and changes to the state’s defense-of-property
regulations). The Service explained that, “on the whole, we expect the statewide wolf population
in Wyoming will be maintained well above minimum recovery levels,” and that earlier concerns
had been remedied. 77 Fed. Reg. at 55,535. It published the 2012 final rule at issue here on
September 10, 2012. 77 Fed. Reg. 55,530.
C. Procedural History
On November 13, 2012, plaintiffs in Defenders of Wildlife v. Salazar, 12-cv-1833, filed a
complaint in this Court challenging the 2012 delisting rule and seeking declaratory and
injunctive relief. On December 7, 2012, another set of plaintiffs filed Humane Society v. U.S.
Fish and Wildlife Service, 12-cv-1965, seeking the same relief. The two cases were consolidated
on December 21, 2012. Dec. 21, 2012 Order [Dkt. # 12]. On April 29, 2013, the Court
permitted the Safari Club International and the National Rifle Association to intervene as
defendants. Apr. 29, 2013 Order [Dkt. # 33]. On May 3, 2013, it permitted the State of
Wyoming to intervene as a defendant. May 3 Order, 2013 [Dkt. # 37]. And on May 9, 2013, it
permitted the Rocky Mountain Elk Foundation to intervene as a defendant. May 9, 2013 Minute
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Order. Finally, on July 17, 2013, the Court granted the Wyoming Wolf Coalition permission to
participate as amicus curiae. July 17, 2013 Order [Dkt. # 57].
On June 3, 2013, plaintiffs filed a motion for summary judgment, arguing that FWS
violated its obligations under the ESA, that the 2012 rule should be set aside, and that ESA
management of the gray wolf in Wyoming should be reinstated. Pls.’ Mot. Defendants
Secretary of the Interior Sally Jewell, 6 FWS, and FWS Director Dan Ashe opposed the motion.
Fed. Defs.’ Mem. in Opp. to Pls.’ Mot. for Summ. J. [Dkt. # 56] (“Fed. Defs.’ Opp.”).
Defendant-intervenor the State of Wyoming also opposed the motion. Def.-Intervenor State of
Wyo. Opp. to Pls.’ Mot. for Summ. J. [Dkt. # 58] (“Wyo. Opp.”) Defendant-intervenors the
National Rifle Association of America, Rocky Mountain Elk Foundation, Inc., and Safari Club
International and amicus curiae the Wyoming Wolf Coalition 2013 filed briefs opposing the
motion. Def.-Intervenors Safari Club Int’l, Nat’l Rifle Ass’n, and Rocky Mountain Elk Found.
Opp. to Pls.’ Mot. for Summ. J. at 27 [Dkt. # 60]; Br. of Amicus Curiae Wyo. Wolf Coalition-
2013 [Dkt. # 61]. Plaintiffs filed a consolidated reply to all the opposition briefs on August 20,
2013. Pls.’ Reply in Supp. of Summ. J. [Dkt. # 64] (“Pls.’ Reply”). The Court heard oral
argument on the motion on December 17, 2013.
STANDARD OF REVIEW
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The party seeking summary judgment bears the “initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if
6 Sally Jewell has replaced Kenneth Salazar as Secretary of the Interior and is substituted
for her predecessor in office pursuant to Federal Rule of Civil Procedure 25(d).
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any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat
summary judgment, the non-moving party must “designate specific facts showing that there is a
genuine issue for trial.” Id. at 324 (internal quotation marks omitted). The existence of a factual
dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247–48 (1986). A dispute is “genuine” only if a reasonable fact-finder could find for the
non-moving party; a fact is only “material” if it is capable of affecting the outcome of the
litigation. Id. at 248; Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). In
assessing a party’s motion, the court must “view the facts and draw reasonable inferences ‘in the
light most favorable to the party opposing the summary judgment motion.’” Scott v. Harris, 550
U.S. 372, 378 (2007) (alterations omitted), quoting United States v. Diebold, Inc., 369 U.S. 654,
655 (1962) (per curiam).
Listing determinations made under the Endangered Species Act are subject to judicial
review under the Administrative Procedure Act. 5 U.S.C. § 706; see also Am. Wildlands v.
Kempthorne, 530 F.3d 991, 997 (D.C. Cir. 2008) (“The Service’s listing determination is subject
to review under the APA . . . .”). Under the APA, a court must “hold unlawful and set aside
agency action, findings, and conclusions” that are “arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law,” 5.U.S.C. § 706(2)(A); in excess of statutory authority,
§ 706(2)(C); or “without observance of procedures required by law.” § 706(2)(D). But the scope
of review is narrow. See Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 43 (1983). An agency’s decision is presumed to be valid, see Citizens to
Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971), and a court must not “substitute
its judgment for that of the agency.” State Farm, 463 U.S. at 43. A court must be satisfied,
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though, that the agency has examined the relevant data and articulated a satisfactory explanation
for its action, “including a rational connection between the facts found and the choice made.”
Alpharma, Inc. v. Leavitt, 460 F.3d 1, 6 (D.C. Cir. 2006) (citations omitted) (internal quotation
marks omitted).
ANALYSIS
Plaintiffs allege that the decision to delist the wolves in Wyoming was made in violation
of the Endangered Species Act, and that it is arbitrary, capricious, and otherwise not in
accordance with law. They challenge the 2012 rule on three broad grounds: (1) that Wyoming’s
statutory and regulatory regime is legally inadequate under the ESA, and that it was arbitrary and
capricious for the FWS to find it to be acceptable; (2) that wolves in the Greater Yellowstone
Area face an ongoing threat of inadequate genetic connectivity to other northern Rocky
Mountain wolves and therefore are not eligible to be delisted; and (3) that FWS incorrectly
determined that wolves are not imperiled throughout a “significant portion” of their range.
I. Wyoming’s Existing Regulatory Mechanisms Are Not Adequate
Section 1533(a)(1) of the ESA requires the Service to determine whether any species may
be endangered or threatened due to, among other reasons, “the inadequacy of existing regulatory
mechanisms.” 16 U.S.C. §1533(a)(1)(D). Plaintiffs contend that Wyoming’s regulatory
mechanisms, which have governed gray wolves in the state since the 2012 rule took effect, are
inadequate because they do not call for the maintenance of an enforceable buffer over the
minimum wolf population that Wyoming is bound to maintain under state law. Pls.’ Mem. at
13–17. They also contend that the state’s laws governing lethal take permits, including permits
for the taking of wolves that cause damage to private property, are flawed because they do not
authorize the state to withhold permits in the event the population falls below the minimum
requirement. Id. at 17–25. And they assert that these shortcomings affect other aspects of the
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state’s regulatory mechanisms, rendering the entire wolf management scheme to be inadequate.
Id. at 25–28.
The Service’s stated recovery goal for gray wolves in the northern Rocky Mountain
region is “[t]hirty or more breeding pairs comprising some 300+ wolves in a metapopulation (a
population that exists as partially isolated sets of subpopulations) with genetic exchange between
subpopulations.” 77 Fed. Reg. at 55,536. FWS divided the overall numeric goal among the
three states that comprise the NRM, so Idaho, Montana, and Wyoming are each required to have
a minimum of ten breeding pairs and 100 wolves. 77 Fed. Reg. at 55,537. And because the
“numerical component of the recovery goal represents the minimum number of breeding pairs
and individual wolves needed to achieve and maintain recovery,” the 2009 rule requires that
Montana and Idaho each maintain a fifty percent buffer above their individual minimum
requirements. 77 Fed. Reg. at 55,538 (emphasis added). In other words, Montana and Idaho
must each manage for at least fifteen breeding pairs and 150 wolves. This “buffer above the
minimum recovery target” provides an “adequate safety margin, recognizing that all wildlife
populations, including wolves, can fluctuate widely over a relatively short period of time.” Id.
In delisting the gray wolf in Wyoming, though, the Service took a different approach.
Rather than explicitly requiring the state to maintain a fifty percent buffer above its minimum
goal, the Service recognized the fact that a significant portion of wolf habitat in Wyoming falls
outside the jurisdiction of the state, in federally controlled park land and Native American
reservations, and it determined that the wolf population in those areas within the state’s borders
could serve as the buffer. So the Service set a minimum goal for Wyoming of ten breeding pairs
and 100 wolves – instead of the 15/150 as in Montana and Idaho – but explained that the wolves
16
found in Yellowstone National Park and on the reservation would not be counted towards
achieving that goal.
The recovery goal requires at least 10 breeding pairs and at least 100
wolves per State. The new approach and agreement provides that this goal
is met in Wyoming outside YNP and the Wind River Indian Reservation
(large areas outside of State jurisdiction).
77 Fed. Reg. at 55,554.
The agency explained:
Nearly all wolf populations in Montana and Idaho occur in areas under
State jurisdiction. Therefore, it makes sense for these States to manage for
a statewide total. In Wyoming, a substantial portion of the wolf habitat
and wolf population occurs in YNP, where the State has no jurisdiction
. . . . Thus, it would be more difficult to manage for a statewide total.
Id.
The Service also concluded, though, that Wyoming would need to manage the population
in state-controlled lands above the minimum requirement in order to meet the requirement.
“Wyoming will, and must, maintain a buffer to consistently meet its minimum management
targets.” 77 Fed. Reg. at 55,556 (emphasis added). But rather than identify a specific percentage
or numeric buffer, as in Idaho and Montana, the Service relied upon the representations in the
Addendum that Wyoming intended to manage above the minimum target to buffer the wolf
population.
Wyoming is firmly committed to a population at least at these levels as
reflected in State statute, regulations, and its management plan. In order
to meet these goals and allow for continued management flexibility,
Wyoming intends to manage for a population above its minimum
management targets.
77 Fed. Reg. at 55,554; see also id. (explaining that given “Wyoming’s management approach
(i.e., the State’s commitment to maintain at least 10 breeding pairs and at least 100 wolves,
which the State intends to satisfy by managing for a buffer above these minimums) and . . . the
17
YNP wolf population’s likely future abundance . . . , the original 15-breeding-pair and 150-wolf-
minimum management targets will rarely, if ever, be compromised”). Based on these
understandings, the Service found that Wyoming’s regulatory scheme was adequate to secure the
numeric component of the recovery goal.
Plaintiffs challenge the agency’s reliance upon the nonbinding representations contained
in the Addendum. They contend that an unenforceable statement of intent to manage the
population above the minimum cannot constitute an adequate regulatory means for achieving the
necessary buffer, which they maintain is an integral part of the mandated recovery goal. Pls.’
Mem. at 14, citing 77 Fed. Reg. at 55,556.
It is important to note at the outset that plaintiffs are not challenging either the recovery
goal of thirty breeding pairs and 300 wolves for the entire NRM or the individual state goal of a
minimum of ten breeding pairs and 100 wolves for Wyoming. See Tr. at 16. They do not
dispute that Wyoming is legally obligated under its own statutes to maintain at least ten breeding
pairs and 100 wolves. See Wyo. Stat. Ann. § 23-1-304(a). And, they do not challenge the
Service’s reliance on the Yellowstone and Wind River reservation populations to help buffer the
overall population and achieve numbers comparable to those in Montana and Idaho. 7
Instead, the gravamen of plaintiffs’ challenge is that Wyoming has not implemented a
legally enforceable commitment that would satisfy the Service’s requirement that the state
maintain a buffer above the minimum requirement of 10/100 within its own territory in order to
meet that minimum requirement: “[W]hat we are saying is they don’t have a regulatory regime
that is sufficient to assure that they meet the goal they themselves established.” Tr. at 16; see
7 Plaintiffs do not dispute that the YNP and Wind River Indian Reservation will provide
some additional wolf population to the state’s minimum goal, though they contend none have
satisfied the definition of a breeding pair. See Pls.’ Mem. at 10 n.3 (noting that the Wind River
Reservation typically contains a small number of wolves).
18
also Tr. at 16–18 (Plaintiffs’ counsel: “[T]he Service said you must – their word, not ours –
must have something more than 10 and 100 in the areas where Wyoming is calling the shots, not
the national parks, in order to make sure that you actually meet the 10 and 100 . . . .”). Plaintiffs
contend that FWS should have required Wyoming to enact a legally binding buffer above the
minimum instead of relying on the nonbinding Addendum to ensure the state will manage above
the minimum. Pls.’ Mem. at 14, citing 77 Fed. Reg. at 55,590. And they maintain that a
statement of intent does not constitute a regulatory mechanism under the Act. Pls.’ Mem. at 14–
15, citing Or. Natural Res. Council v. Daley, 6 F. Supp. 2d 1139, 1155 (D. Or. 1998) (holding
that voluntary actions are necessarily speculative); S.W. Ctr. for Biological Diversity v. Norton,
Civ. No. 98–934 (RMU/JMF), 2002 WL 1733618, at *9 (D.D.C. July 29, 2002) (holding that the
operative question in addressing the adequacy of regulatory mechanisms under the ESA “is
whether a set of regulations is concrete and specific enough to ensure that it will in fact be
implemented”).
FWS has explained that it “decided against requiring Wyoming to provide a specific
numeric buffer above the[ ] minimum management targets” because any buffer will necessarily
change over time as mortality rates change in response to delisting and changing hunting quotas,
and because of shifting population dynamics. 77 Fed. Reg. at 55,556. It contends that the ESA
does not require that every part of the state’s management plan for a species be “binding and
enforceable,” and that the ESA does not preclude the Service from considering management
plans and other state pronouncements about how a state will manage a species after delisting.
Fed. Defs.’ Opp. at 9–10. Further, the Service argues that its reading of the statute to permit it to
consider all relevant information bearing on a state’s management and regulation of a species,
including nonbinding commitments, is reasonable under the Chevron test. Id. at 7–10, citing
19
Defenders of Wildlife v. Kempthorne, 535 F. Supp. 2d 121, 130–31 (D.D.C. 2008) (upholding
FWS’s consideration of individual management plans on state-owned lands); Biodiversity Legal
Found. v. Babbitt, 943 F. Supp. 23, 26 (D.D.C. 1996) (holding that land management plans are
valid considerations under Factor D, provided that the plans were in existence at the time the
analysis is performed); see also Tucson Herpetological Soc'y v. Salazar, 566 F.3d 870, 881 (9th
Cir. 2009) (ruling that FWS reasonably considered a conservation agreement and a management
strategy, where the agency considered both its conservation benefits and limitations); In re Polar
Bear Endangered Species Act Listing and Section 4(d) Rule Litigation, 794 F. Supp. 2d 65, 112
(D.D.C. 2011); affirmed 709 F.3d 1 (D.C. Cir. 2013) (upholding decision to list the polar bear as
threatened based, in part, on adaptive management plans).
Meanwhile, the intervenor-defendant state of Wyoming takes a different approach in
defending against this aspect of plaintiffs’ claim. It argues that it is not legally required to
manage over the minimum requirement of ten breeding pairs and 100 wolves at all, and
therefore, its regulatory scheme is adequate to meet the only demands imposed by the 2012 rule.
See Wyo. Opp. at 22 (“The State is not legally required to manage for a specific numeric buffer
in addition to the minimum management targets, but the State has the authority to do so, has
committed to do so, and will do so.”); see also Tr. at 71 (THE COURT: “Okay. So your basic
position is that our commitment to manage to 10, plus the park, meets the goals, done.”
[Counsel for Wyoming]: “Correct.”).
Given these conflicting contentions, the Court must first ascertain what the Service
determined was required of Wyoming as a condition of the delisting: that it maintain at least ten
breeding pairs and 100 wolves outside Yellowstone and the Wind River Indian Reservation, as
Wyoming asserted in oral argument and as is plainly required under Wyoming state law, or that
20
it maintain more than ten breeding pairs and 100 wolves, as plaintiffs contend. If FWS required
the former, then there is no dispute that the state’s laws bind Wyoming to meet the minimum. If
FWS required the latter as a buffer, then the Court must consider whether the agency’s
determination that Wyoming’s regulatory mechanisms are adequate to do so is reasonable.
A. FWS required Wyoming to maintain more than the minimum recovery
population.
Based on its review of the 2012 rule and the entire set of materials published in the
Federal Register explaining the delisting decision, as well as the record of this case as a whole,
the Court finds that the Service expressly relied upon its understanding that Wyoming would
maintain more than ten breeding pairs and 100 wolves within its jurisdiction as a necessary
predicate for the delisting. It is true that in the 2012 rule, the Service pointed to the state statute
that requires Wyoming to maintain “at least” ten breeding pairs and 100 wolves, 77 Fed. Reg.
55,535; see also Tr. at 38–39, but it did not find the regulatory scheme to be sufficient on that
basis alone. The Service announced at the time the 2012 rule was promulgated that “Wyoming
will, and must, maintain a buffer to consistently meet its minimum management targets.”
77 Fed. Reg. at 55,556 (emphasis added).
FWS emphasized that point repeatedly in the published justification for the 2012 rule.
See 77 Fed. Reg. at 55,535 (“Wyoming agreed to maintain a population of at least 10 breeding
pairs and at least 100 wolves . . . . Wyoming intends to maintain an adequate buffer above the
minimum population”); id. at 55,538 (“Wyoming’s wolf population will be further buffered
because WGFD intends to maintain an adequate buffer above minimum population objections”)
(emphasis added); id. at 55,539 (“Wyoming also intends to manage well above these minimum
required levels”); and id. at 55,555 (“Wyoming intends to meet its statutory and regulatory
standards by managing for a buffer above the minimum management targets”). Indeed, when the
21
Court specifically asked at oral argument whether the Service had relied on Wyoming’s
voluntary management plans in making its decision, counsel for the federal defendants
acknowledged that it did.
THE COURT: . . . If you are telling me, no, in our view 10 and 100 is
sufficient as long as there’s the national parks and that’s not counted in the
10, we think that’s sufficient, period[ – y]ou don’t need to get to all these
nonbinding commitments about how we’re going to manage, because
we’re satisfied with the binding commitment and the parks [–] then why
are you spending so much time telling me how good Wyoming’s
voluntary plans are? Are you relying on them or are you not relying on
them?
MR. EITEL: Sorry. We are relying on the plans. So it comes down to the
state mandate of 10 and 100 in its law. And Fish and Wildlife took the
next steps, and is it likely that that’s going to be maintained in the future?
So it did look at the regulations and the management plans, and typical
Administrative Procedure Act case, making sure it has a good basis for its
decisions, a rational basis, so it did look at all the factors that were out
there. So to make the conclusion can Fish and Wildlife actually
implement this law, manage the wolf population so it never drops below
that minimum population.
Tr. at 40–41. Thus, the Court concludes that the challenged delisting decision did in fact rest, at
least in part, upon the statements made by the state in the Addendum that it would be managing
the species to achieve a goal of more than the ten breeding pairs or 100 wolves mandated by state
law.
B. The Service cannot rely solely on an unenforceable promise as a basis to
delist a species.
Since the decision to delist is expressly premised on the state’s intention to manage to
maintain a buffer above 10/100, the next question for the Court to resolve is whether it was
proper for FWS to rely on nonbinding and unenforceable representations when it concluded that
the state’s plan was adequate to ensure that the state will in fact maintain the necessary number
of breeding pairs and individual wolves.
22
There is little legal authority governing this question. The government points to In Re
Polar Bear as the “best case” in support of its position that the FWS can rely on nonbinding
assurances made by other entities as long as it has considered the entire set of facts and
circumstances reasonably. See Tr. at 42, 49, citing In re Polar Bear, 794 F. Supp. 2d at 112;
affirmed In re Polar Bear, 709 F.3d 1 (D.C. Cir. 2013). But as the district court noted in its
Polar Bear opinion, in that matter, the agency explicitly stated that it was not relying on
unenforceable promises in support of its decision. 794 F. Supp. 2d at 112. Here, the agency
expressly relied upon unenforceable statements of intent on an issue that was critical to the
delisting decision. And other courts in this district and elsewhere have suggested that such
reliance would be unacceptable.
In Biodiversity Legal Foundation v. Babbitt, 943 F. Supp. 23, the plaintiffs challenged the
denial of a petition to list a different species of wolf as endangered under the ESA. In its opinion
remanding the action to the agency, the district court noted that “in multiple places, the record
makes reference to possible future actions of the Forest Service to provide sanctuary for the wolf.
Although the Secretary has every right to do this, he cannot use promises of proposed future
actions as an excuse for not making a determination based on the existing record.” Id. at 26.
The court found the agency’s consideration of possible future actions to be contrary to the
statutory requirement that the agency base its endangerment determination upon its consideration
of “existing” regulatory mechanisms, and “solely on the basis of the best scientific and
commercial data available.” Id., quoting 16 U.S.C. §1533(a)(1)(D) and (b)(1)(A).
In Oregon Natural Resources Council v. Daley, 6 F. Supp. 2d 1139, the district court
rejected the agency’s finding that certain coho salmon were not threatened under the ESA. The
plaintiffs attacked the decision on several grounds, including a claim that the FWS should not
23
have relied upon the anticipated results of the Oregon Coastal Salmon Restoration Initiative,
which had not yet been fully implemented and which generally involved voluntary measures.
The court found that the agency acted arbitrarily and capriciously by relying upon improper
factors, and as the first step in that determination, it reviewed the statute to ascertain what types
of measures the agency could appropriately consider. The court took note of the tension between
various sections of the statute:
[O]ne section of the ESA requires the Secretary to consider five factors in
a listing decision: the fourth factor is “the adequacy of existing regulatory
mechanisms.” 16 U.S.C. § 1533(a)(1)(D). The next section of the ESA
requires the Secretary to consider these five factors based upon the best
available data “after taking into account those efforts, if any, being made
by any State . . . to protect such species, whether by predator control,
protection of habitat and food supply, or other conservation practices,” 16
U.S.C. § 1533(b)(1)(B) . . . .
The statutory reference to “existing regulatory mechanisms” in
§ 1533(a)(1)(D) is precise and unambiguous and, if standing alone, would
preclude consideration of any future or voluntary conservation efforts
which, by definition, are not “existing” or “regulatory.” However, the
language of § 1533(b)(1)(B) concerning “efforts” and “other conservation
practices” is much broader and, if standing alone, would permit the
Secretary to consider non-regulatory efforts.
6 F. Supp. 2d at 1153.
With respect to future actions, the court agreed with the court in Biodiversity Legal
Foundation that reliance upon future initiatives would contravene the statute since even the
broad language of §1533(b)(1)(B) speaks only in the present tense of “efforts . . . being made.”
Id. at 1153–54. The court found the question of whether the ESA permits consideration of
voluntary measures to be more difficult, but it found:
for the same reason that the Secretary may not rely on future actions, he
should not be able to rely on unenforceable efforts. Absent some method
of enforcing compliance, protection of a species can never be assured.
Voluntary actions, like those planned in the future, are necessarily
24
speculative. . . . Therefore, voluntary or future conservation efforts by a
state should be given no weight in the listing decision.
Id. at 1155. And in Center for Biological Diversity v. Morgenweck, 351 F. Supp. 2d 1137, 1141
(D. Colo. 2004), a Colorado district court also found reliance upon future promises of action by
the states to be problematic: “the law is clear that FWS cannot consider future conservation
efforts in its review of the Petition.”
The Polar Bear litigation opinions do not stand for a contrary principle. In 2008, after
extensive administrative proceedings, the Service issued a final rule designating the polar bear as
a “threatened” species under the ESA. This prompted challenges from organizations that took
the position that the listing was unsupported, as well as those that maintained that the agency had
not gone far enough. According the agency the deference required by law, the district court
issued a lengthy and detailed opinion evaluating each of the objections raised on either side of
the issue, and it concluded that the decision was a reasoned exercise of the agency’s discretion
based upon the facts and the best science available at the time the decision was made. In re
Polar Bear, 794 F. Supp. 2d at 65.
The Polar Bear court devoted only one page of its 116 page decision to the question at
issue here. And while it is true that the court declined to find that it was arbitrary for the agency
to assume that the adaptive management principles employed by most polar bear countries would
continue to be flexible enough to respond to population reductions in the future, id. at 112, one
cannot read the opinion as a decision approving FWS reliance on unenforceable assurances.
Certain plaintiffs had questioned the finding that the polar bear was not in danger of extinction
due to overharvesting, and the court stated:
[T]he Court is not persuaded that FWS inappropriately relied upon
uncertain future management actions when it reached this conclusion.
25
FWS expressly considered only existing mechanisms in making its listing
determination for the polar bear.
Id., quoting AR 117,284 (“[I]n making our finding we have not relied on agreements that have
not been implemented.”). The Court of Appeals upheld the decision, and it did not shed
additional light on this issue. See 709 F.3d. 1.
In this case, the agency did not merely consider the nonbinding statements in the
Addendum as one aspect of the state’s overall regulatory scheme: two out of five of the original
peer reviewers found the regulatory mechanisms to be inadequate in the absence of a buffer, and
the Addendum was submitted by the state in response. The record reflects that FWS specifically
relied on the representations in the Addendum as the basis for its conclusion that Wyoming
would do what the agency had determined that it must do: manage above the 10/100 minimum.
The Court finds that under those circumstances, the reliance on mere assurances was
inappropriate, and it rendered the FWS decision arbitrary and capricious. 8 This opinion does not
go so far as to hold that the FWS may not ever consider nonbinding statements as part of the mix
when assessing the adequacy of a set of regulatory mechanisms as a whole; it finds that it was
unreasonable in this instance for FWS to determine that it was necessary for Wyoming to
manage for more than ten breeding pairs and 100 wolves as a condition for delisting but then
8 In Greater Yellowstone Coalition, Inc., v. Servheen, 665 F. 3d 1015, 1030–31 (9th. Cir.
2011), the plaintiffs raised concerns similar to those here that the Service had relied upon too
many measures that were not legally binding when delisting the grizzly bear. But the court
declined to reach the question of whether a voluntary, unenforceable measure could constitute a
“regulatory mechanism” under §1533(a)(1)(D); instead it ruled that even if the Service’s
consideration of the voluntary and unenforceable components of the multi-state conservation
plan was error, the determination could be upheld based upon legally binding components alone.
That option is not available here since the delisting decision depends expressly upon the state’s
commitment to manage above the 10/100 minimum number.
26
accept a plan that did not commit to that.9 See Colorado River Cutthroat Trout v. Salazar, 898
F. Supp. 2d 191, 207–08 (D.D.C. 2012) (“while the FWS cannot rely on promised and
unenforceable conservation agreements in evaluating regulatory mechanisms . . . its
consideration of the Conservation Strategy as part of its overall assessment of ongoing
management practices is not inappropriate.”). 10 Accordingly, the Court holds that the Service’s
determination that Wyoming’s regulatory scheme was adequate under the ESA was arbitrary and
capricious. 11
II. FWS’s Analysis of the Species’ Genetic Connectivity is Reasonable
As explained above, the Service’s recovery goal includes a genetic component in addition
to the numerical components. 77 Fed. Reg. at 55,536–37 (requiring “genetic exchange between
subpopulations”). Genetic connectivity refers to the ability of wolf packs to breed across a
designated range, and genetic exchange refers to the ability of new genes to enter into a
subpopulation, whether by natural dispersal or with human assistance, to minimize “negative
9 The Court emphasizes that this ruling does not mean states cannot use flexible, adaptive
management practices, such as setting hunting quotas or lethal take permits, in managing a
species. In re Polar Bear, 709 F.3d 1 (D.C. Cir. 2013) (upholding listing rule that was based in
part on Service’s consideration of nonbinding aspects of a regulatory framework).
10 In the Colorado River Cutthroat Trout case, environmental groups sought review of a
finding by the FWS that listing the trout species as threatened or endangered under the ESA was
not warranted, and the district court upheld the agency’s decision. Plaintiffs alleged that the
agency had relied improperly on the Colorado River Conservation Strategy – voluntary measures
undertaken in conjunction with the states – but in that case, unlike the case at hand, the FWS
specifically disclaimed any reliance on those agreements. See 898 F. Supp. 2d at 207 (“In its Not
Warranted Finding, the FWS noted that the voluntary agreements under the Conservation
Strategy ‘do not qualify as a regulatory mechanism’ and that the FWS could not base its finding
on a ‘promised or anticipated result of conservation actions[.]’”). The court also noted that there
was no evidence that the FWS relied on the strategy indirectly in reaching its conclusion. Id.
11 Because Wyoming’s regulatory scheme is inadequate for failing to legally obligate the
state to manage the species at the levels FWS determined necessary to warrant delisting, the
Court does not reach the question of whether other provisions within the scheme, such as those
governing lethal take permits, are adequate.
27
effects of genetic drift and inbreeding depression.” 77 Fed. Reg. at 55,564; see also Fed. Defs.’
Opp. at 26, quoting AR 232 at 4166–67 (“[G]ene flow from one population to another can
maintain and substantially increase variation in local populations.”). The 2012 rule provides
that, “[a]s a general rule, genetic exchange of at least one effective migrant (i.e., a breeding
migrant that passes on its genes) per generation” qualifies as sufficient genetic exchange to
warrant delisting. 77 Fed. Reg. at 55,593. Plaintiffs challenge the Service’s determination that
this standard has been met and that wolf dispersals will diminish under state management. Pls.’
Mem. at 28–39.
Data in the record show that from 1992 to 2008, there were documented dispersals of five
radio-collared wolves naturally entering the Greater Yellowstone Area, two of which were
confirmed to have bred. 77 Fed. Reg. at 55,593. According to FWS, it is likely that these
numbers understate the actual dispersal and breeding numbers:
Because only 20 to 30 percent of the NRM wolf population has been
radio-collared, it is reasonable to assume several times the documented
number of radio-collared wolves likely entered the GYA. On average,
about 35 percent of dispersing wolves reproduce . . . . Because a wolf
generation is approximately 4 years, dispersal data indicate that more than
one effective migrant per generation has likely entered into the GYA wolf
population.
Id. Based on this information, FWS estimated an average of approximately one-and-a-half
effective migrants into the GYA per generation since reintroduction. Id.
Genetic studies in the record also show that from 1995 to 2004, a minimum of 0.42
natural effective migrants entered the GYA per generation. Id. The 2012 rule states that this
number underestimated the actual effective migrants because “only about 30 percent of the NRM
wolf population was sampled.” Id. One expert stated that the 0.42 number was “almost certainly
low by at least half.” Id., citing Hebblewhite article at AR 2875 (stating the “minimum estimate
of 3–5 migrants per generation was, the authors note, almost certainly low by at least half
28
because only about 30% of the wolves were sampled,” and because the wolf population has
doubled in size and expanded in space since the study ended, “even more migrants are expected
at the present time”). The Service extrapolated the data showing 0.42 natural effective migrants
to conclude that it supported a finding of at least one effective migrant per generation. Id. The
Service thus determined that the record showed sufficient genetic exchange to satisfy the
recovery goal.
Plaintiffs focus their challenge of the Service’s findings on the genetic studies in the
record. They contend that the Service’s extrapolation of the 0.42 statistic was improper because
one of the co-authors of the study that documented the statistic, YNP wolf biologist Dan Stahler,
disagreed with another scientist’s view that the statistic was low by at least fifty percent.
Plaintiffs cite an email from Stahler, Pls.’ Mem. at 31, in which he wrote:
I suggest not using Hebblewhite et al. 2010 comment that our estimate of
effective migration/generation is low by at least 50% . . . . I am unaware
of any such data or theory to support this specific claim. In other words, it
would not be necessarily accurate (certainly not based on supporting data)
to say that because we showed 3 to 5 effective migrants per generation and
we sample 30%, then there must be really 6–10 migrants per generation.
AR 5865.
Plaintiffs cite Carlton v. Babbitt, 26 F. Supp. 2d 102, 109–10 (D.D.C. 1998), and
Defenders of Wildlife v. Babbitt, 958 F. Supp. 670, 685 (D.D.C. 1997), in support of their
argument. In Carlton, the court ruled it was unjustified for the Service to rely on a study
conducted on a large population of grizzly bears to make a mortality determination for a much
smaller population of grizzly bears. Carlton, 26 F. Supp. 2d at 109–10. The study itself warned
that the concept of “sustainable yield” discussed in the study “is not independent of the size of
the population in question,” and the author explained in a separate thesis why the figure the
29
Service relied on in its determination should not be used for smaller populations. Id. at 109
(internal quotation marks omitted).
In Defenders of Wildlife v. Babbitt, the court ruled that FWS consistently ignored the
analysis of its expert biologists in declining to list the Canada lynx as endangered or threatened.
958 F. Supp. at 685. There, FWS declined to list the Canada lynx under the ESA, even though
FWS’s Region 6 recommended listing the species and even though “not a single biologist or
Lynx expert employed by the FWS disagreed with the recommendation of the Region 6
biologists.” Id. at 676. In rejecting the 50-page recommendation, the acting director of the
Service issued a 5-page memorandum that cited no scientific study or Lynx expert, but merely
stated a number of conclusions that directly contradicted the conclusions of the Region 6
biologists. Id.This case is not like Carlton, where the Service used a study of one population to reach
conclusions about another. Here, the study in question is a genetics study of the same NRM
wolves: it analyzed DNA samples from 555 NRM wolves from the three recovery areas.
AR 11,355–86. And while in Carlton, the author of the study specifically warned against
applying its conclusions to a different population, here, the author of the study recognized that
some extrapolation from the 0.42 number would be appropriate: “It is safe to say that the true
number of effective migrants into each recovery area is more, but by how much is difficult to
say.” AR 5865. Stahler did not support adopting Hebblewhite’s specific suggestion that the
estimate was low by at least fifty percent, but his disagreement centered on the ability to quantify
the difference, not the fact that the data in his study was understated to some degree: “I’m not
saying it isn’t possible to be as high as this (or higher in recent years), but making statements like
30
this that is not supported by data could create problems and I personally am uncomfortable
presenting our vonHoldt et al. 2010 data this way.” Id. 12
Moreover, this case is not like Defenders of Wildlife v. Babbitt, in which the Service
completely ignored the scientific data before it and issued a rule without any scientific
underpinnings. The vonHoldt study co-authored by Stahler analyzed DNA samples of NRM
wolves and found that the “population maintained high levels of variation . . . with low levels of
inbreeding” and “detected genetically effective dispersal among the three recovery areas.” AR
11355. Again, the issue is not whether there has been genetic exchange, but how much.
The Supreme Court has held that where a determination “requires a high level of
technical expertise, [a court] must defer to the informed discretion of the responsible federal
agencies.” Marsh v. Or. Natural Res. Council, 490 U.S. 360, 377 (1989), quoting Kleppe v.
Sierra Club, 427 U.S. 390, 412 (1976) (internal quotation marks omitted). Although the
“presumption of agency expertise may be rebutted if its decisions, even though based on
scientific expertise, are not reasoned,” Defenders of Wildlife v. Babbitt, 958 F. Supp. at 679,
citing ALLTEL Corp. v. FCC, 838 F.2d 551, 562 (D.C. Cir. 1988), the Court cannot find based
on the record before it that FWS’s determination is not well reasoned. The record data show that
known genetic exchange in the GYA has in fact occurred at a level of 0.42 natural effective
migrants per generation, and scientists – including the scientist who calculated that number –
agree that it understates the actual level of genetic exchange. It was not unreasonable for the
Service to extrapolate that statistic based on the sample size across the total population to
conclude that there has been sufficient genetic exchange to support delisting. The Court finds
12 Plaintiffs complain that FWS failed to cite Stahler’s warning in the 2012 rule. Although
the rule does not quote the email from Dan Stahler, it does cite the email in its discussion of
extrapolating the numbers from the vonHoldt study. See 77 Fed. Reg. at 55,593.
31
that this aspect of plaintiffs’ complaint amounts “to nothing more than competing views about
policy and science,” In re Polar Bear, 794 F. Supp. 2d at 69, and therefore, the 2012 rule will
not be invalidated on these grounds. 13
III. The Service’s Determination that Wolves are Not Imperiled Throughout a
“Significant Portion” of Their Range is Reasonable
A. The Service’s analysis of “significant portion” of the range
The Endangered Species Act applies to a species in danger or threatened with extinction
“throughout all” of its range or “a significant portion of its range.” 16 U.S.C. §§ 1532(6), (20).
In light of this, the Service conducts a “significant portion of its range” (“SPR”) analysis.
77 Fed. Reg. at 55,601 (“Having determined that [the] gray wolf in Wyoming does not meet the
definition of endangered or threatened throughout its range, we must next consider whether there
are any significant portions of its range that are in danger of extinction or likely to become
endangered.”).
In conducting an SPR analysis, the Service first determines whether a portion or portions
of the range are significant and, then, whether the species may be in danger of extinction there or
is likely to become so within the foreseeable future. 77 Fed. Reg. at 55,602. If it determines that
a portion of the range is not significant, it does not analyze whether the species is threatened or
endangered there. Id. (stating “there is no purpose to analyzing portions of the range that have
13 Plaintiffs also argue that state management of the species will diminish genetic
connectivity in the northern Rocky Mountain region because FWS unlawfully assumes that
(1) the wolf population in the region will be maintained above recovery levels, (2) the
management approaches of Idaho, Montana, and Wyoming take into account and limit the
impact of hunting during important dispersal periods, and (3) human-assisted migration will be
sufficient to make up for lack of natural genetic connectivity. Pls.’ Mem. at 32–39. Because the
Court finds that Wyoming’s existing regulatory mechanisms are inadequate given that the state’s
promise to maintain the wolf population at levels required to warrant delisting is unenforceable,
the Court does not reach the question of how specific regulatory mechanisms will affect genetic
connectivity in the future.
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no reasonable potential to be significant and threatened or endangered”). In its analysis, the
Service asks whether, without the portion of range at issue, “the representation, redundancy, or
resiliency of the species would be so impaired that the species would have an increased
vulnerability to threats to the point that the overall species would be in danger of extinction (i.e.,
would be ‘endangered’).” Id. 14
In the 2012 rule, the Service analyzed the area outside Wyoming’s trophy game area –
the so-called predator area – in conducting its SPR analysis because it had “already determined
wolves are not threatened or endangered in areas including protected and game portions of the
State.” Id. The trophy game area is located in the northwestern portion of the state, as shown in
the light shaded area below:
14 The Service revised its SPR analysis in response to two recent court rulings. See 77 Fed.
Reg. at 55,601. The courts in Defenders of Wildlife v. Salazar, 729 F. Supp. 2d 1207 (D. Mont.
2010), and WildEarth Guardians v. Salazar, 2010 U.S. Dist. LEXIS 105253 (D. Ariz. Sept. 30,
2010), held that the ESA requires that once it is determined a species, subspecies, or DPS is
“endangered” or “threatened” in a “significant portion” of its range, the species must be listed in
its entirety and the Act’s protections apply to all members of that species. In the 2009 rule, FWS
considered a portion of a species’ range to be significant if its contribution to the species’
“representation, resiliency, or redundancy” was “such that its loss would result in a decrease in
the ability to conserve the species.” 74 Fed. Reg. at 15,153 (emphasis added). That is, in
considering significance, the agency asked “whether the loss of this portion likely would
eventually move the species toward extinction, but not to the point where the species should be
listed as threatened or endangered throughout all of its range.” Id. (emphasis added). In the
2012 rule, the Service applied a more stringent threshold to the term “significant,” since finding
a species to be endangered or threatened in a significant portion of its range would require listing
throughout its entire range. 77 Fed. Reg. at 55,602. The agency explained that it sought to make
the “significant” threshold robust enough to prevent listing when only a negligible increase in
extinction risk would result from the loss of the portion but not so high that threats in the portion
of the range would not be addressed. Id. Plaintiffs do not challenge the agency’s revised SPR
analysis. See Pls.’ Mem. at 41; Pls.’ Reply at 32.
33
Id. at 55,534. Wolves in this area are treated as “trophy game,” meaning the state regulates how
and when they can be killed and how many of them can be killed. 77 Fed. Reg. at 55,558.
Wolves in the “predator area” throughout the rest of the state, are regulated as “predatory
animals,” meaning they can be killed by anyone with very few restrictions. Id.
The Service determined that Wyoming’s predator area is not a significant portion of the
wolves’ range because it contains none of the original recovery zone, it has very little suitable
wolf habitat, and very few wolves, packs, or breeding pairs live in the area. Id. at 55,602. The
agency stated that although some wolves living in trophy area could be killed if they traversed
into the predator area, the “total mortality” from that circumstance “is expected to be minimal.”
34
Id. And it found that “while wolf mortality in the predator area could affect successful migration
between subpopulations, such mortality: (1) [i]s expected to be opportunistic and minimal, and
(2) is not expected to affect genetic factors to the point that it could cause the remainder of the
range to become endangered.” Id. at 55,602–03. Further, it found that even if all the wolves in
the predator area were extirpated, wolves in the rest of Wyoming, the GYA, and the NRM would
not become endangered. Id. at 55,603. It therefore found that the predator area “does not
represent ‘a significant portion of range.’” Id.
B. The Service’s conclusion that Wyoming’s predator area is not a significant
portion of the species’ range is reasonable
Plaintiffs challenge the SPR finding specifically with respect to its impact on genetic
connectivity. Pls.’ Mem. at 41–42. According to plaintiffs, because Wyoming wolves may
traverse the predator area to reach wolves in Montana and Idaho, the area poses a risk to those
wolves and, thereby, to the genetic connectivity of GYA wolves to other wolves in the region,
making the predator area a significant portion of the species’ range. See Tr. at 12 (Plaintiffs’
counsel: “[I]f we start ramping up the mortality, we’re very likely going to make it impossible
for wolves to make that movement . . . .”). Plaintiffs assert that the SPR finding is an “irrational
reversal by FWS of its own past scientific conclusions in the wolf delisting context,” pointing to
the 2009 rule. Pls.’ Mem. at 42. In 2009, the Service found that all of Wyoming was a
significant portion of wolves’ range and should be treated as a trophy game area because of
genetic connectivity concerns. Id. at 42–43. Plaintiffs contend that the 2012 finding to the
contrary is improper because the science underlying the decisions has not changed. Id. 15
The Service’s conclusion in 2012 that the predator area contains none of the original
recovery zone and has very little suitable wolf habitat, and that very few wolves, packs, or
15 Plaintiffs argue this is the case, even in light of the agency’s heightened threshold for
“significant” in its SPR analysis. Reply at 32–33.
35
breeding pairs live there is supported by the record. 77 Fed. Reg. at 55,602. The record shows
wolves did not inhabit the eastern and southern parts of the state in 2012. See supra Figure 1;
see also AR 770 (stating that the predator area is “peripheral to the core regions of suitable
habitat”); AR 4957 (depicting a map of “colonization probabilit[ies]” cited by plaintiffs that
shows a “0–0.099” colonization probability in the southern and eastern part of the state). And
this is not an irrational reversal of the 2009 rule: even though the Service found the entire state
to be a significant portion of the wolves’ range in 2009, it emphasized at that time that much of
the state is not suitable wolf habitat. 74 Fed. Reg. at 15,127 (stating that “portions of the Sierra
Madre, the Snowy, and the Laramie Ranges” and areas “fairly intensively used by livestock” are
unsuitable wolf habitat); see id. at 15,183 (“By identifying the entire State as a significant
portion of the range we are not suggesting wolves could or should reoccupy or establish packs in
unsuitable habitat.”). Thus, to the extent plaintiffs’ position is that the Service should have found
that all of the predator area is a significant portion of the species’ range, the Court does not
agree.
To the extent plaintiffs’ argument is that some part of the predator area is a significant
portion of the species’ range, the Court finds the record does not support that position either.
Plaintiffs cite a draft document from two FWS biologists that addresses the subject of dispersing
wolves entering the predator area. See Tr. at 11–12, citing AR 14,194–96 (stating that “the only
real issue” with respect to dispersal in the NRM is wolves entering the GYA from either
northwest Montana or central Idaho). The biologists wrote, “there is not a lot of wiggle room” to
assure dispersal into the GYA and called for a larger and permanent trophy area:
To have any measurable effect that might enhance the opportunity for
adequate natural effective migration[,] an expanded WY trophy game area
should not be treated as predatory animal during any part of the year and
should include all the area north of Big Piney, WY.
36
AR 14,196. Wyoming addressed these dispersal concerns by establishing a permanent trophy
game area, larger than the one proposed in 2009, with an annual expansion of approximately
fifty miles south for four and a half months. 77 Fed. Reg. at 55,534, citing Wyo. Game and Fish
Comm’n 2011, p. 2, 8, 52. This seasonal expansion was created to protect wolves traveling
south of the trophy area during peak wolf dispersal periods. Id. This contrasts with the trophy
area considered in 2009, which was smaller and which state regulators could reduce in size. 74
Fed. Reg. at 15,149. 16
The Court finds that it was reasonable for the agency to find that the current predator area
is not a significant portion of the species’ range even though GYA wolves may travel through it
and be killed there. To be sure, the 2012 trophy area does not extend as far south as the FWS
biologists recommended, and the expansion south is seasonal. But it does provide for additional
protection for dispersing wolves. See supra Figure 1. 17 Further, the record shows that dispersing
wolves take a variety of routes to enter the GYA that do not involve their entering the predator
zone. 77 Fed. Reg. at 55,564, citing Figure 2 at 55,540. And it shows that even when wolves
were subject to ESA management and protection, dispersals were infrequent. AR 14,196; see
also Pls.’ SOF ¶ 15 (stating that FWS documented only two successful wolf dispersals into the
16 Plaintiffs assert in their briefs that the problem with the 2012 SPR finding has to do with
genetic connectivity, not with the differences in the trophy game management in 2009 and in
2012. Reply at 33. But in oral argument, they made clear that genetic connectivity is directly
related to trophy game and predator management. Tr. at 6 (“[T]he key part of that picture with
respect to that predator management zone is how you get wolves to move through that zone to
connect the Wyoming and Yellowstone population up with the other subpopulations in the
region which was always an essential criteria for recovery.”).
17 Plaintiffs state that “nearly half of all dispersal habitat in Wyoming falls within the
‘predator zone.’” Pls.’ Mem. at 43, citing AR 4957. The figure plaintiffs cite overlays the trophy
game area over a “colonization probability” map and states that the trophy area includes fifty-six
percent of the dispersal habitat, but the overlay of the trophy area does not appear to account for
the seasonal expansion of the trophy area. See AR 4957.
37
GYA based upon wolf-tracking information over the thirteen year period between 1995 and
2008); Tr. at 7 (same). This suggests that wolf dispersals occur on a limited basis at best.
The record also shows, as explained above, that four of the five peer reviewers agreed
that Wyoming’s regulatory scheme – including its establishment of the predator area – is likely
to provide for sufficient levels of gene flow within GYA and NRM. AR 732. And the peer
reviewers who specifically commented on the predator area in the context of genetic connectivity
stated the area does not bear meaningfully on the issue:
Establishment of the predator area encompassing much of Wyoming,
where wolves will be subjected to unregulated harvest, has certainly been
controversial. However there is little functional difference between
Wyoming’s explicitly-defined predator area and eastern Montana or
southern Idaho where wolves have not become established, even under
ESA protection, due to lack of suitable habitat and high potential for
livestock conflicts. In any case, wolves that move into these areas are
likely to be subject to removal and unlikely to persist. In Wyoming,
wolves can be killed as soon as they are detected in the predator area,
whereas in the other 2 states they are generally eliminated once they begin
depredating livestock. Any minor difference in timing of removal has
little bearing on maintaining viable wolf populations in the NRM because
these areas are peripheral to the core regions of suitable habitat and thus
are not important for maintaining gene flow among the 3 recovery areas.
AR 770 (comment of Dr. Adams) (emphasis added); see also AR 779 (comments of Dr. Mills)
(“Although small as a percent of the state, the fact that the [Wolf Trophy Game Management
Area] contains virtually all of Wyoming’s wolves and wolf habitat implies to me that it will be
sufficient to sustain . . . necessary levels of connectivity to other parts of the NRM population.”)
(emphasis omitted). Indeed, the one peer reviewer who disagreed with the other four on the
broader issue of genetic connectivity did not contend that the predator area was critical to genetic
connectivity. Rather, he said Wyoming remained responsible for maintaining genetic
connectivity and called on states to engage in human-assisted migration if connectivity goals are
38
not being met. AR 805–06 (comments of Dr. Vucetich); see also AR 732–33 (summarizing Dr.
Vucetich’s views).
Under these circumstances, the Court does not find the Service’s conclusion that the
predator zone is not a significant portion of the wolves’ range to be arbitrary, capricious, or not
in accordance with the law. As with other aspects of the genetic connectivity issue, the Court
finds that the significance and impact of the predator area on genetic connectivity is the sort of
scientific matter for which deference is required. The Court is satisfied that the agency has
examined the relevant data and explained its conclusion, making a rational connection between
the fact that few wolves live in or traverse the predator area and its conclusion that the predator
area is not a significant portion of the wolves’ range. Further, the Court does not consider the
agency’s SPR analysis to be an irrational reversal of its position in 2009, given the altered
regulatory landscape the agency considered in 2012 and the scientific views presented in the
record on the issue of the area’s impact on genetic connectivity. While the Court recognizes that
some scientists, and plaintiffs, may reasonably disagree with the agency’s conclusion, the Court
will not substitute its judgment for that of the agency given the record before it. In re Polar
Bear, 709 F.3d at 3, citing Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S.
at 43.
For all of those reasons, then, the Court holds that the Service’s determination that the
predator area is not a significant portion of the wolf’s range is reasonable.
39
CONCLUSION
For the reasons stated above, the Court will grant in part and deny in part plaintiffs’
motion for summary judgment. Further, it will vacate and set aside the 2012 rule. A separate
order will issue.
AMY BERMAN JACKSON
United States District Judge
DATE: September 23, 2014
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