Sep 252014

Update (Sept. 26): Judge Jackson has given the federal government and plaintiffs in the case until Monday to respond to the state's request. Here's the docket entry for her order, issued Sept. 26:

MINUTE ORDER. It is ORDERED that the federal defendants shall respond to the State of Wyoming's September 24, 2014 motions by 2:00 p.m. Eastern time, Monday, September 29, 2014. The response to the motion to alter judgment [69] shall address the question of whether a Rule 59(e) motion can properly be based on "new evidence" in an Administrative Procedures Act case, which necessarily involves the review of an agency decision based upon the administrative record that was before the agency at the time the decision was made. The response shall also address whether the new evidence cited by the State can be found to be "not previously available" when the state could have acted at any point prior to the issuance of the Court's opinion. It is further ORDERED that plaintiffs shall address these issues in the response they have indicated they plan to file by 2:00 p.m., September 29, 2014. Finally, the State of Wyoming may file an additional submission responding to these questions by 2:00 pm, September 29, 2014., if it chooses to do so. Signed by Judge Amy Berman Jackson on 9/26/14. (DMK)

Attempting to regain management of gray wolves, Wyoming has asked federal judge Amy Berman Jackson to amend her opinion finding that the Fish and Wildlife Service had improperly relied on what amounted to promises by the state when FWS delisted the wolf in Wyoming in 2012.

In a motion to alter or amend, the state pointed to an emergency rule adopted by the Wyoming Game and Fish Commission yesterday, shortly after Jackson's opinion was issued, and "hold that the state’s existing wolf management scheme satisfies the requirements for delisting under the Endangered Species Act" (Defenders of Wildlife v. Jewell, 12-133, D.D.C.).

The commission "adopted an emergency rule to give the Gray Wolf Management Plan and the Addendum [to that plan] the status of commission rules with the force and effect of law," the state said in its court filing. "This emergency rule took effect when it was filed with the Wyoming Secretary of State on September 24, 2014."

Emergency rules can remain in effect for a maximum of 240 days, but the state said the commission "expects to have the permanent rule in place by mid-November before the emergency rule expires."

Said the state:

The emergency rule also impacts this court’s analysis of the adequate regulatory mechanisms issue. This court set aside and vacated the 2012 Wyoming delisting rule because this court believes the Wolf Management Plan and the Addendum are not legally enforceable. (Doc. 68 at 23, 26) The emergency rule makes the Wolf Management Plan and the Addendum commission rules and, as such, they have the force and effect of law. See Johnson v. City of Laramie, 2008 WY 73, ¶7, 187 P.3d 355, 357 (Wyo. 2008) (in Wyoming, “[p]roperly promulgated rules and regulations have the force and effect of law”). As a result, the legal basis for this court’s decision to set aside and vacate the 2012 Wyoming delisting rule no longer exists.

The effect of the ruling was to prevent any hunting of wolves in Wyoming. As WGFD director Scott Talbott noted in a news release Sept. 23, "Today, we want all wolf hunters and landowners to know that the take of wolves in Wyoming – hunting and lethal take provisions in Wyoming statute – are suspended because of the federal court ruling.”

The environmental plaintiffs are expected to oppose the motion. Earthjustice attorney Tim Preso told Greenwire, "Wyoming's sudden and strategic acceptance of the need for regulatory wolf protections does not justify any change in the court's judgment. We will explain that to the court." Preso represents Defenders of Wildlife, Sierra Club, Natural Resources Defense Council and Center for Biological Diversity. The Humane Society and Fund for Animals filed a separate case, which has been consolidated with the Defenders lawsuit.


ESWR story (9/24)

Wyoming reacts (press release from WGFD)