Wolves in Wyoming back on the list

 Posted by on September 24, 2014
Sep 242014
 

Gray wolves in Wyoming are back on the endangered species list after a federal judge in Washington, D.C., said the Fish and Wildlife Service could not “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” (Defenders of Wildlife v. Jewell, 12-1833 ABJ, D.D.C.).

U.S. District Judge Amy Berman Jackson’s opinion

Said Jackson:

“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 accept a plan that did not commit to that.”

Earthjustice, et al. press release on decision

More coming on this story…

Excerpts from opinion:

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.

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. 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 accept a plan that did not commit to that. 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.”). Accordingly, the Court holds that the Service’s determination that Wyoming’s regulatory scheme was adequate under the ESA was arbitrary and capricious.

Footnote 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.

Links

Wyoming wolf delisting challenged in federal court (EJ release, 12/17/13)

FWS gray wolf page

Service Declares Wyoming Gray Wolf Recovered Under the ESA and Returns Management Authority to the State (8/31/2012)

Jul 292014
 

The Idaho Department of Fish and Game says it won’t kill wolves in the Frank Church River of No Return Wilderness on the Payette National Forest.

Western Watersheds Project, which has sued IDFG over its plans, announced the development today. Jeff Gould, chief of the department’s wildlife bureau, made the commitment in a declaration filed in the Ninth Circuit Court of Appeals (Maughan v. Vilsack, 14-35043).

“The lawsuit already halted last winter’s operations in the Frank Church River of No Return Wilderness, but the agencies had intended to resume this year,” WWP said.

“Wiping out two wolf packs without any public participation or environmental review violated the management principles of the Wilderness Act and the National Forest Management Act,” WWP said earlier this year, when the hunt was first stopped. “The IDFG was using Forest Service cabins as a base camp for the extermination efforts.”

IDFG “claimed that the Golden Pack and the Monumental Pack were reducing elk populations to the detriment of human hunting,” WWP said.

In addition to WWP, plaintiffs in the lawsuit include Defenders of Wildlife, Center for Biological Diversity and Wilderness Watch.

 

Feb 072014
 

The Fish and Wildlife Service plans to reopen the comment period on its proposal to delist the gray wolf throughout the lower 48 states, following release today of a review that says FWS didn’t use the best scientific information available.

The “key conclusions” from the report by the National Center for Ecological Analysis and Synthesis:

  • There was unanimity among the panelists that, although there was much good scientific work in the Proposed Rule, the rule is heavily dependent upon the analysis of Chambers et al. 
  • Some reviewers also noted a lack of appropriate use of the literature on species level taxonomy 
  • There was unanimity among the panelists that Chambers et al was not universally accepted and
  • that the issue was ‘not settled’. The issues raised by Chambers et al could be definitively answered relatively soon.
  • There was unanimity among the panel that the rule does not currently represent the ‘best available science’
  • Neither the panel as a whole, not any of its members in their individual reviews, made any management or policy recommendations. 

The comment period will be reopened until midnight, March 27. (FWS press release)

Sep 112012
 

Eight other groups have also said they will sue over the delisting of the gray wolf in Wyoming.

WildEarth Guardians,  Alliance for the Wild Rockies, Biodiversity Conservation Alliance, Conservation Congress, Friends of Animals, Friends of the Clearwater, National Wolfwatcher Coalition and Western Watersheds Project sent a Notice of Intent to Sue on Sept 10.

They joined the more nationally known groups Defenders of Wildlife, Center for Biological Diversity, Natural Resources Defense Council and Sierra Club, who also have said they will file a lawsuit over the delisting.

Press release

Sep 102012
 

The same day the final rule delisting wolves in Wyoming appeared in the Federal Register, four environmental groups said they will sue the Fish and Wildlife Service over the decision, annonced last week.

Earthjustice, representing Defenders of Wildlife, Center for Biological Diversity, Natural Resources Defense Council and Sierra Club, sent a 60-day Notice of Intent to Sue to Interior Secretary Ken Salazar and FWS Director Dan Ashe.

“Wyoming’s wolf management policies open the door to unlimited wolf killing throughout most of the state and provide inadequate protection for wolves even where killing is regulated,” a news release issued today says.

Links

NOITS posted on ESWR’s page

Delisting rule in FR

Earthjustice page with wolf links

Aug 312012
 

“Wyoming’s gray wolf population is stable, threats are sufficiently minimized, and a post-delisting monitoring and management framework has been developed,” the Fish and Wildlife Service said in a final rule to be published in the Federal Register that will remove ESA protection for gray wolves in Wyoming.

The decision means that the Northern Rocky Mountains Distinct Population Segment of the wolf will no longer be listed in Montana, Idaho or Wyoming. The first two states have already allowed hunting of the animals. The latest decision, feared and fought by environmental groups, paves the way for hunting in Wyoming.

 

  • Credit: Tracy Brooks/Mission Wolf / USFWS 
Apr 042012
 

A federal judge has ruled against requests that would allow continued hunting without a permit of three non-native, privately bred antelope species on game farms in Texas (Safari Club International v. Salazar, 11-1564-BAH; Exotic Wildlife Association v. U.S. 12-340-BAH, D.D.C).

Safari Club International and the Exotic Wildlife Association had asked U.S. District Judge Beryl Howell for separate injunctions. SCI sought to enjoin enforcement of endangered status for the scimitar-horned oryx, dama gazelle, and addax, Howell noted in her April 3 opinion. EWA and co-plaintiffs “are seeking more narrow relief” to prohibit the Fish and Wildlife Service from enforcing a final rule removing a regulation “that has, since 2005, exempted U.S. non-native captive populations of the three antelope species from many of the prohibitions, restrictions, and requirements attendant to their classification as endangered species.”

That rule, which goes into effect today (April 4, 2012), was promulgated in response to a previous federal court decision (Friends of Animals v. Salazar, 626 F. Supp. 2d 102, D.D.C. 2009) that found FWS had illegally allowed the hunting of the antelope species, which are native to Africa but are raised on game farms in Texas. The “captive-bred exemption” was included in a rule listing the species as endangered. District Court Judge Henry Kennedy determined that the rule had been issued without proper public notice and comment.

In her decision, Howell said then plaintiffs had not demonstrated a likelihood of success on the merits, because FWS’s listing decision “was issued only after years of consultation and research, and appears to be consistent with the policy and practice of the FWS as well as with the purpose of the ESA.”

The judge said that examples cited by SCI where FWS treated captive and wild animals differently “are just that, examples.” She continued:

“An agency decision to treat the wild and captive antelope together in the listing decision came only after consideration over the period from 1991 to 2005. The fact that the FWS has over time differentiated between wild and captive animals in the case of other animal species does not, on its own, suggest to the court that the decision not to do so in this case was arbitrary and capricious.”

The judge also said SCI had not been able to show that FWS “ignored the conservation mandates of the ESA.”

“Indeed, by listing both the captive and wild populations of the three antelope species as endangered, the FWS has ensured that prohibitions against taking, importing, and exporting will apply to all members of the three antelope species. There will be no confusion about whether a party is attempting to ‘take’ a captive-bred antelope or a wild antelope as there might be if only some of the three antelope species were considered ‘endangered.’ ”

EWA argued that FWS should have considered delisting the species, and that removing the captive-bred exemption will harm conservation efforts. Indeed, EWA had argued that “[t]he draconian effect of this new rule is easy to predict [because], since publication of the proposed rule last summer, many owners have already disposed of half or all of their oryx, addax and dama gazelles.”

“These claims about the adverse impact on the U.S. herds of these endangered species from the final rule, even before it becomes effective, are obviously disturbing,” Howell said. “Neither SCI nor the EWA plaintiffs have shown, however, that they are entitled to a preliminary injunction because they will suffer irreparable harm. In the case of both SCI and the EWA plaintiffs, the harm alleged is (1) primarily economic and (2) in any case, remedied by the permit practice that is already in place.”

“The court does not underestimate the significance of the economic loss to individual ranchers resulting from the depreciation in the value of the animals,” the judge wrote. “Nevertheless, the standard for showing irreparable harm in this jurisdiction is strict, and economic harm alone is generally not sufficient to warrant this court’s granting of a motion for a preliminary injunction. The D.C. Circuit has made it clear that ‘economic loss does not, in and of itself, constitute irreparable harm.’ Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985).”

Said the judge: “The regulations in place after the final rule goes into effect on April 4 . . . should allow plaintiffs to continue raising the [antelopes]. First, the ESA does not regulate ‘purely intrastate activities (with the exception of take).’ 77 Fed. Reg. at 433. Thus, plaintiffs will be able to continue to possess animals, transport them within the state, or sell them to another party within the state without a permit. Beyond those activities, permits will be available for many of the other activities currently engaged in by the plaintiffs.”

Supreme Court to take up takings case involving flooding in Arkansas

The Supreme Court granted a petition for writ of certiorari in a case involving the Army Corp of Engineers’ flooding of a wildlife management area in Arkansas (Ark. Game & Fish Commission v. U.S., 11-597).

The question is “whether government actions that impose recurring flood invasions must continue permanently to take property within the meaning of the Takings Clause.”

Links

Investigation demanded of trapping, killing of Idaho wolf by Forest Service employee

The Center for Biological Diversity has asked the Forest Service and Idaho Attorney General to investigate the actions of a Forest Service employee “who posted photos of a wolf he had trapped in northern Idaho that had been maliciously and non-fatally shot by people who spotted the animal from a nearby road.”

The photos were originally posted on the trapperman.com website but havre since been taken down. [Editor's note: The Center for Biological Diversity also had posted a photo to which we linked earlier, but CBD has removed that picture, as well as a letter it sent to the Idaho Attorney General.]

“A year ago, that wolf was protected as a member of an endangered species, but last month he was trapped, tortured and killed thanks to an underhanded congressional rider that’s also responsible for the deaths of hundreds of other wolves in the northern Rocky Mountains,” said the Center’s Michael Robinson. “A lack of respect for the balance of nature is leading to a war on wolves in the northern Rocky Mountains.”

Bransford with the wolf before he shot it (pic downloaded from Idaho Statesman page; I have no intention of removing it.)

According to the Boise Weekly,” a spokesman for [Idaho Fish and Game's] Clearwater Region said the wolf was legally trapped by Bransford and subsequently checked by department officials.”

Bransford works in the Nez Perce National Forest, but there has been no suggestion that the incident occurred while he was on the job.

Here’s the Earth Island Journal account.

Mar 142012
 

Photo by Gary Kramer/USFWS

The Ninth Circuit Court of Appeals has denied a challenge brought by the Center for Biological Diversity and other conservation groups to a congressional rider that effectively delisted Northern Rocky Mountain gray wolves.

“A three-judge panel rejected the conservation organizations’ argument that the rider is unconstitutional because it violates the separation-of-powers doctrine,” CBD said in a press release.

The panel included Circuit Judges Mary M. Schroeder, Stephen Reinhardt and Mary H. Murguia. Schroeder wrote the decision. Here is the court’s analysis and conclusion:

II. ANALYSIS

The cornerstones of plaintiffs’ separation of powers challenge were laid in the mid-19th century when the Supreme Court decided United States v. Klein, 80 U.S. 128 (1871) and Pennsylvania v. The Wheeling and Belmont Bridge Co., 59 U.S. 421 (1855).

In Klein, the Supreme Court struck down an act of Congress that dictated the result in pending litigation. The plaintiff in Klein sued the government for the proceeds of property sold during the Civil War. The suit was filed under a statute granting such a cause of action to noncombatant confederate landowners who could show proof of loyalty to the federal government. The Supreme Court, in an earlier case, had decided that receipt of a Presidential pardon was sufficient proof of “loyalty” under this law. The Court of Claims in Klein followed that decision and awarded recovery. While the government’s appeal was pending, Congress passed a statute providing that no pardon could be admitted as proof of loyalty to the federal government and that acceptance of a pardon, under most circumstances, was conclusive evidence of disloyalty. The statute thus directed the Supreme Court and the Court of Claims to find that a claimant who had accepted a Presidential pardon was in fact disloyal and, therefore, not entitled to land sale proceeds. The newly enacted statute further directed the Supreme Court to dismiss any case, for want of jurisdiction, if the claimant had prevailed upon proof of loyalty by Presidential pardon.

In striking down the statute, the Supreme Court in Klein explained that the effect of the new law was to deny jurisdiction to the Supreme Court and Court of Claims in pending cases “solely on the application of a rule of decision, in causes pending, prescribed by Congress.” Id. at 146. This, the Court held, Congress could not do: “It seems to us that this is not an exercise of the acknowledged power of Congress to make exceptions and prescribe regulations to the appellate power.” Id. Because Congress had “prescribe[d] a rule for the decision of a cause in a particular way,” Congress “passed the limit which separates the legislative from the judicial power,” and the provision was declared unconstitutional. Id. at 146-47.

The Court in Klein had to distinguish Wheeling Bridge. There, the Court had originally held that a bridge was an obstruction to navigation. 59 U.S. at 429. Intervening legislation, however, made the bridge a post-road for passage of the United States mail and forbade users of the river from interfering with the bridge. The Court concluded in Wheeling Bridge that this new statute had changed the earlier law that the bridge was obstructing navigation. “[A]lthough [the bridge] still may be an obstruction in fact, [it] is not so in the contemplation of law.” Id. at 430. The Court in Klein held Wheeling Bridge differed from Klein in a critically important aspect: Congress had changed the law, not told the Court that it should decide the case differently under the same law. “No arbitrary rule of decision was prescribed in [Wheeling Bridge], but the court was left to apply its ordinary rules to the new circumstances created by the act. In [Klein] no new circumstances have been created by legislation.” Klein, 80 U.S. at 146-47.

Klein, however, has remained an isolated Supreme Court application of the separation of powers doctrine to strike down a statute that dictated the result in pending litigation. This court relied on Klein in Seattle Audubon Society v. Robertson, 914 F.2d 1311 (9th Cir. 1990), rev’d, Robertson v. Seattle Audubon Society, 503 U.S. 429 (1992) to strike down a statute enacted to affect pending environmental litigation aimed at restricting logging and protecting the endangered spotted owl. While the litigation was still ongoing, and after the environmental groups had won a preliminary injunction on the ground that there had been inadequate study of the logging’s environmental effects, Congress intervened and passed section 318 of the Department of the Interior and Related Agencies Appropriations Act for Fiscal Year 1990, Pub. L. No. 101-121, 103 Stat. 701, 745-50 (1989) (“section 318”). Section 318 allowed logging in parts of the disputed spotted owl habitat. Section 318(b)(6)(A) specified how the environmental concerns in the pending litigation were to be satisfied and barred judicial review. It provided:

Without passing on the legal and factual adequacy of the Final Supplement to the Environmental Impact Statement for an Amendment to the Pacific Northwest Regional Guide-Spotted Owl Guidelines and the accompanying Record of Decision issued by the Forest Service on December 12, 1988 or the December 22, 1987 agreement between the Bureau of Land Management and the Oregon Department of Fish and Wildlife for management of the spotted owl, the Congress hereby determines and directs that management of areas according to subsections (b)(3) and (b)(5) of this section on the thirteen national forests in Oregon and Washington and Bureau of Land Management lands in western Oregon known to contain northern spotted owls is adequate consideration for the purpose of meeting the statutory requirements that are the basis for the consolidated cases captioned Seattle Audubon Society et al., v. F. Dale Robertson, Civil No. 89-160 and Washington Contract Loggers Assoc. et al., v. F. Dale Robertson, Civil No. 89-99 (order granting preliminary injunction) and the case Portland Audubon Society et al., v. Manuel Lujan, Jr., Civil No. 87-1160-FR. The guidelines adopted by subsections (b)(3) and (b)(5) of this section shall not be subject to judicial review by any court of the United States.

Our court held that section 318 violated the rule in Klein in that it directed the court “to reach a specific result and make certain factual findings under existing law in connection with two cases pending in federal court.” 914 F.2d at 1316. We noted that, although subsections (b)(2), (b)(3), and (b)(5) added additional requirements, the statute did not by its plain language repeal or amend the environmental laws underlying the litigation. Id.

The Supreme Court, however, told us the error of our ways. Robertson, 503 U.S. 429. The Court held that section 318 amended the law because subsections (b)(3) and (b)(5) replaced the legal standards underlying the old growth forest litigation. Id. at 437. The Court held that the rule of Tennessee Valley Authority, requiring repeal of a law to be explicit, did not apply because section 318 did not repeal, but “amended” or changed the environmental laws applicable to a specific case and therefore did not violate the constitutional prerogative of the courts. Id. at 440 (citing TVA v. Hill, 437 U.S. 153, 190 (1978)).

    [1] Here, as in Robertson, Congress has directed an agency to take particular action challenged in pending litigation by changing the law applicable to that case. In Robertson, Congress replaced the environmental laws applicable to the spotted owl litigation with new provisions and effectively directed the agency to comply with the new provisions. Here, Congress has directed the agency to issue the rule “without regard to any other provision of statute or regulation that applies to issuance of such rule.” This court has held that, when Congress so directs an agency action, with similar language, Congress has amended the law. Consejo de Desarollo Economico, Mexicali v. United States, 482 F.3d 1157, 1169 (9th Cir. 2007) (“[W]hen Congress has directed immediate implementation ‘notwithstanding any other provision of law,’ we have construed the legislation to exempt the affected project from the reach of environmental statutes which would delay implementation.”). In Consejo, Congress directed the immediate commencement of a project to line a canal “notwithstanding any other provision of law.” We relied upon our earlier decision in Stop H-3 Ass’n v. Dole, 870 F.2d 1419 (9th Cir. 1989) which upheld a statute that exempted a project from environmental laws. We said in Consejo that, like the legislation underpinning Stop H-3, “the 2006 Act does not direct us to make any findings or to make any particular application of law to facts. Rather, the legislation changes the substantive law governing pre-conditions to commencement of the Lining Project. As such, it does not violate the constitutional separation of powers.” Id. at 1170; see also Apache Survival Coal. v. United States, 21 F.3d 895, 902 (9th Cir. 1994) (“[L]ike in Robertson, the statute substituted preexisting legal standards that governed a particular project, in this case ESA and NEPA, with the new standards . . . .”). We must reach the same result here.

   [2] Appellants’ arguments that Section 1713 is a repeal rather than an amendment must fail for a similar reason. Congress did not repeal any part of the ESA. Rather, Congress effectively provided that no statute, and this must include the ESA, would apply to the 2009 rule. Congress thus amended the law applicable to the agency action.

Appellants also contend that the meaning and effect of the 2009 Rule as reissued under Section 1713 are unclear, and that ambiguity prevents the court from finding an amendment. We cannot agree. The meaning and intended effect of Section 1713 are perfectly clear. The partial delisting was to take effect within 60 days, with no court review or interference.

   [3] Section 1713’s bar to judicial review does not remove it from the broad safe harbor recognized in Robertson. The bar has the same purpose and effect as the statutory language in Consejo that directed agency action “without delay” and “notwithstanding any other provision of law.” See 482 F.3d at 1168-69. As we stated in Consejo, particular language “is not dispositive.” Id. There are no “magic words” that can sweep aside constitutional concerns. See id. Here, as in Consejo, however, it is clear that Congress intended to amend the law so as to avoid the usual course of administrative proceedings that include judicial review; otherwise, “it would have been unnecessary for Congress to act at all.” Id. at 1169. The D.C. Circuit has reached the same conclusion when dealing with a statute that also stated, expressly, that an agency action “shall not be subject to judicial review.” Nat’l Coal. to Save Our Mall v. Norton, 269 F.3d 1092, 1095 (D.C. Cir. 2001). In National Coalition, the court held that the preclusion of review tracked language elsewhere in the statute that the project at issue “be ‘constructed expeditiously’ ” and, therefore, “demonstrate[d] Congress’s clear intent to go ahead” with the project “regardless of the . . . relation to pre-existing general legislation.” Id. We agree with the D.C. Circuit that preclusion of judicial review indicates Congressional intent to change the law applicable to the project.

Section 1713 could be read to bar judicial review of even its own constitutionality. Such a construction would, of course, raise serious questions concerning the constitutionality of Section 1713. See Webster v. Doe, 486 U.S. 592, 603 (1988); Johnson v. Robison, 415 U.S. 361, 366 (1974). The government has disavowed this interpretation before the district court and this court. We reject any such interpretation.

   [4] Finally, we observe that while Section 1713 bars judicial review of the reissuance of the 2009 Rule, the 2009 Rule does provide standards by which the agency is to evaluate the continuing viability of wolves in Montana and Idaho. See, e.g., 74 Fed. Reg. 15,123 at 15,186. Review of any regulations issued pursuant to the Rule or of agency compliance with the standards, does not appear to be restricted. Section 1713 itself, however, ordering the Rule to issue without regard to the laws that might otherwise apply, is entitled to be enforced.

III. CONCLUSION

For the reasons given above, the decision of the district court is AFFIRMED and the motion for an injunction pending appeal is DENIED as moot.