Defenders of Wildlife v. Salazar

729 F.Supp.2d 1207

DEFENDERS OF WILDLIFE, Natural Resources Defense Council, Sierra Club, Humane Society of the United States, Center for Biological Diversity, Jackson Hole Conservation Alliance, Friends of the Clearwater, Alliance for the Wild Rockies, Oregon Wild, Cascadia Wildlands, Western Watersheds Project, Wildlands Network, and Hells Canyon Preservation Council, Plaintiffs,

v.Ken SALAZAR, Secretary of the Interior, Rowan Gould, Acting U.S. Fish and Wildlife Service Director, and United States Fish and Wildlife Service, Defendants,

v.State of Idaho, Safari Club International, Sportsmen for Fish and Wildlife, Montana Farm Bureau Federation, Idaho Farm Bureau Federation, Mountain States Legal Foundation, State of Montana, Montana Department of Fish, Wildlife and Parks, Idaho Governor C.L. "Butch" Otter, National Rifle Association of America, Intervenor-Defendants.

Greater Yellowstone Coalition, Plaintiff,

v.Ken Salazar, Secretary of the Interior, Rowan Gould, Acting U.S. Fish and Wildlife Service Director, and United States Fish and Wildlife Service, Defendants.

Nos. CV 09-77-M-DWM, CV 09-82-M-DWM.

United States District Court,

D. Montana,

Missoula Division.

Aug. 5, 2010.

Jenny K. Harbine, Timothy J. Preso, Earthjustice Legal Defense Fund, Bozeman, MT, for Defenders of Wildlife, Natural Resources Defense Council, Sierra Club, Humane Society of the United States, Center for Biological Diversity, Jackson Hole Conservation Alliance, Friends of the Clearwater, Alliance for the Wild Rockies, Oregon Wild, Cascadia Wildlands, Western Watersheds Project, Wildlands Network, Hells Canyon Preservation Council.

Douglas L. Honnold, Earthjustice Legal Defense Fund, Bozeman, MT, for Defenders of Wildlife, Natural Resources Defense Council, Sierra Club, Humane Society of the United States, Center for Biological Diversity, Jackson Hole Conservation Alliance, Friends of the Clearwater, Alliance for the Wild Rockies, Oregon Wild, Cascadia Wildlands, Western Watersheds Project, Wildlands Network, Hells Canyon Preservation Council, Greater Yellowstone Coalition.

Brian K. Gallik, Goetz Gallik & Baldwin, Bozeman, MT, Deborah A. Sivas, Robb W. Kapla, Environmental Law Clinic, Stanford, CA, for Greater Yellowstone Coalition.

Michael Richard Eitel, U.S. Department of Justice, Denver, CO, for Ken Salazar Secretary of the Interior, Rowan Gould, United States Fish and Wildlife Service.

Victoria L. Francis, Office of the U.S. Attorney, Billings, MT, for Ken Salazar Secretary of the Interior, United States Fish and Wildlife Service.

Clive J. Strong, Lawrence G. Wasden, Office of the Attorney General, Steven W. Strack, Boise, ID, for Intervenor Defendant State of Idaho.

James David Johnson, Williams Law Firm, Missoula, MT, for Intervenor Defendants State of Idaho, Idaho Governor Butch Otter.

Anna M. Seidman Safari Club International, Washington, DC, Intervenor Defendant Safari Club International.

Robert Thomas Cameron, Gough Shanahan Johnson & Waterman, Helena, MT, for Intervenor Defendants Safari Club International, National Rifle Association of America.

Paul A. Turcke, Moore Smith Buxton & Turcke, Boise, ID, Robert T. Bell, Reep, Bell & Laird, P.C., Missoula, MT, for Intervenor Defendant Sportsmen for Fish and Wildlife.

Ronald W. Opsahl, Mountain States Legal Foundation, Lakewood, CO, for Intervenor Defendants Montana Farm Bureau Federation, Idaho Farm Bureau Federation, Mountain States Legal Foundation.

Martha M. Williams, Robert N. Lane, Montana Fish Wildlife and Parks, Stephen C. Bullock, Office of the Montana Attorney General, Helena, MT, for Intervenor Defendants State of Montana, Montana Department of Fish, Wildlife and Parks.

David F. Hensley Office of the Governor, Thomas C. Perry, Species Conservation, Boise, ID, for Intervenor Defendant Idaho Governor Butch Otter.

Grant D. Parker, Rocky Mountain Elk Foundation, Lon J. Dale, Milodragovich Dale Steinbrenner & Binney, Missoula, MT, John I. Kittel, Mazur and Kittel, PLLC, Farmington Hills, MI, for Amicus Rocky Mountain Elk Foundation.

OPINION

DONALD W. MOLLOY, District Judge.

I. Introduction

When Congress enacted the Endangered Species Act (the "ESA") what itenvisioned was an orderly process beginning with a determination of when a species is at risk of extinction and ending when that risk is reduced to an acceptable level. The Act was not intended to sow the dragon's teeth of strife or to plant the seeds of future conflicts that have given rise to this case. The fight about wolves, steeped in stentorian agitprop, ignores the two different mandates of the act: the risk assessments, whether listing or delisting, are designed to prevent extinction of a species and secondly they are intended to promote recovery of that species. Even though the focus is different, both contribute to the principal goal of the Act, conserving a listed species and its habitat. It does so by using scientific evidence and efforts to stabilize the species but also by ameliorating threats the species faces to the point that the species is no longer unacceptably at risk of extinction. Dale D. Goble, Recovery, in Endangered Species Act: Law, Policy, and Perspectives 71, 71 (Donald C. Baur & Wm. Robert Irvin eds., 2010). "[I]t is clear that Congress intended that conservation and survival be two different (though complimentary) goals of the ESA." Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv. 378 F.3d 1059, 1070 (9th Cir.2004).

The Talmudic disagreement in this case is to some degree a product of the fact that the Congress does not explicitly define "recovery" in the Act. Consequently there are different views about how that status is to be measured or achieved. Congress did, however, define "conservation" as an affirmative obligation to "use ... all methods and procedures which are necessary to bring any [listed] species to the point at which the measures provided pursuant to this Act are no longer necessary." 16 U.S.C. § 1532(3). While the statute is bare, the implementing regulations define "recovered" to mean "no longer in need of the Act's protection." It is the Act's definitions of "endangered" and "threatened" that provide the applicable standards for determining whether a species is recovered. Goble, Recovery at 72. Despite this reality, it is not necessarily the case that threatened or endangered status can be determined solely on the basis of scientific evidence alone. Beyond the question of risk is the issue of the acceptability of risk. Id. at 73. The decision that a risk is acceptable regarding a specific species is, in turn, an ethical and policy judgment. That means, in many respects, the complications are political. Even so, such judgments must be made within the context of the law, and the mandate of Congress cannot be altered or diminished to satisfy political or other purposes that are contrary to the plain meaning of the ESA.

When a species is delisted it creates additional legal concerns: will "removal of the ESA's 'existing regulatory mechanisms' again place the species at risk by removing its legal protection?" Id. at 74. The delisting decision, which must consider the same five factors as the listing decision, focuses on two separate issues. First, there is the question of whether the species has recovered biologically. The resolution of this question depends upon the population size and distribution and whether its numbers have increased sufficiently to provide assurance that the species is not unacceptably at risk from stochastic events. Then it is necessary to determine if the biological recovery is threatened by the lack of sufficient legal protections. It is the conflated turmoil of the legal issues with the pragmatic management issues that form the basis of Plaintiffs' challenge, and Defendants' response in this case.

As discussed in greater detail below, after reviewing the Final Rule, the administrative record, the arguments submitted by the parties, the statutes and relevant case law, the Court finds:

• The Endangered Species Act does not allow the U.S. Fish & Wildlife Service to list only part of a "species" as endangered, or to protect a listed distinct population segment only in part as the Final Rule here does; and

• the legislative history of the Endangered Species Act does not support the Service's new interpretation of the phrase "significant portion of its range." To the contrary it supports the historical view that the Service has always held, the Endangered Species Act does not allow a distinct population segment to be subdivided.

Accordingly, the rule delisting the gray wolf must be set aside because, though it may be a pragmatic solution to a difficult biological issue, it is not a legal one. Because the Rule does not comply with the ESA, it is unnecessary to resolve all of the issues raised by the parties.

II. Case Background

The Defenders of Wildlife, et al. ("Defenders of Wildlife") and the Greater Yellowstone Coalition ("Greater Yellowstone") challenge the U.S. Fish & Wildlife Service's (the "Service's") decision to designate and partially remove protections for the northern Rocky Mountain gray wolf distinct population segment ("DPS") under the ESA, 16 U.S.C. § 1536. They seek judicial review under the Administrative Procedure Act, 5 U.S.C. §§ 701-706 and the ESA, 16 U.S.C. § 1531 et seq.

Plaintiff Defenders of Wildlife's claims are that the Service's gray wolf delisting Rule violates the ESA for nine separate reasons: (1) the decision violates the statute by partially protecting a listed species; (2) the decision is based on outdated and unscientific recovery targets; (3) there is a lack of genetic connectivity to support the decision; (4) there are inadequate regulatory mechanisms to protect wolves without protections of the ESA; (5) the Service failed to consider loss of historic range when determining whether the wolves are recovered; (6) the Service disregarded the status of gray wolves throughout the lower-48 states in conducting its analysis; (7) the...