Apr 082015

There are two ways of looking at the Idaho Department of Fish and Game's recent wolf monitoring report: The number of wolf deaths declined 24 percent (from 473 to 360) and the estimated number of wolves in the state increased from 684 to 770. Also, said the report, "The number of reproductive wolf packs (or pairs) in Idaho is far higher than the number of wolf packs documented to meet the federal breeding pair criteria." (IDFG press release)

But another take is that the documented number of wolves was actually down in 2014 from the year before. And, despite an increase in the number of documented breeding pairs (from 20 to 26), the number of breeding pairs is down significantly since Idaho began allowing the hunting of wolves.

"Unlike Montana and Wyoming, Idaho does not base its population estimate solely on observation of wolf packs by the state's biologists, but rather combines direct observations with extrapolated wolf numbers," the Center for Biological Diversity said.

"Idaho's biologists actually documented only 272 wolves in 43 packs, but the state claims 770 wolves in 104 packs based on hunter reports and an average pack size of 6.5 wolves. There are probably more than 43 packs, but because hunters likely report dispersing wolves or even coyotes and pack size varies considerably, the exact number is unknown. This is why both Montana and Wyoming present a minimum count of just the wolves that they themselves count."

Number of documented wolf packs and documented breeding pairs in Idaho, 1995-2014. Annual numbers were based on best information available and were retroactively updated as new information was obtained.

Number of documented wolf packs and documented breeding pairs in Idaho, 1995-2014. Annual numbers were based on best information available and were retroactively updated as new information was obtained. (from IDFG report)

Excerpts from the report:

Biologists documented 104 packs within the state at the end of 2014. In addition, there were 23 documented border packs counted by Montana, Wyoming, and Washington that had established territories overlapping the Idaho state boundary. Additional packs are suspected but not included due to lack of documentation.

Determination of breeding pair status was made for 43 packs. Of these, 26 packs met breeding pair criteria at the end of 2014, and 17 packs did not. No determination of breeding pair status was made for the remaining 61 packs. Reproduction (production of at least 1 pup) was documented in a minimum 55 packs. The year-end population for documented packs, other documented groups not qualifying as packs, and lone wolves was estimated at 770 wolves.

Mortalities of 360 wolves were documented in Idaho in 2014, 113 wolves (24%) less than in 2013. Human-caused mortality accounted for 342 of 344 (99%) wolf mortalities during 2014 where cause of death could be determined. Legal harvest was 256 wolves, agency removal and legal take was 67 wolves, and mortality from other human causes was 19 wolves. Sixteen wolf mortalities were attributed to unknown causes and two were attributed to natural causes.

The probability that a pack meets breeding pair criteria increases as pack size increases (Mitchell et al. 2008). Consistent with this relationship, the proportion of packs meeting the breeding pair criterion decreased noticeably as pack size diminished after harvest began in 2009. The increase in breeding pairs detected during 2014 was associated both with an increase in mean pack size, and with an increase in field effort during 2014.

Mar 162015

Let's not do the Time Warp again.

That was the message from U.S. District Judge Edward Lodge, who said on March 11 that the Forest Service did not rely on the best available science when it updated its travel management plan (Friends of the Clearwater v. U.S. Forest Service, 13-515 EJL, D. Idaho).

A press release announcing the decision is below. Here's an excerpt:

The Forest Service issued a memo on May 2, 2011 providing its interpretation and reasoning for applying the guidelines for measuring [Elk Habitat Effectiveness] as those used in the Forest Plan to include roads but not motorized trails. (AR5750-51.) The memo discusses the model used in the Forest Plan as being limited to roads and states that although “the model has evolved over the years and now includes factors for trails, the test for Forest Plan standards must be made using the model as it existed at the time of the forest plan. Otherwise the standards in the Plan become a moving target. It is appropriate to utilize the current model to consider trail effects for the purpose of comparing alternatives to each other but not as a test for Forest Plan compliance.” (AR5751.)

Plaintiffs maintain this memo does not satisfy 36 C.F.R. § 219.35(a) because it does not substantively consider the best science found in the 1997 guidelines nor does it discuss science in any form. (Dkt. 38 at 8 n. 10.) Plaintiffs further dispute this conclusion arguing it is “an exercise in management convenience” that fails to satisfy the requirements of NFMA. (Dkt. 38 at 8 n. 10.) Plaintiffs assert that once the Forest Service became aware of the 1997 Guidelines they were required to either 1) alter the Travel Plan or 2) amend the Forest Plan. (Dkt. 38 at 7 n. 9.) The Court agrees with the Plaintiffs.

To accept the Forest Service’s conclusion would be to allow analysis and reasoning be made in a time-warp as if nothing has changed since 1987 when the guidelines for measuring the very data at issue have clearly and undisputably changed. While the Court agrees that generally data should be measured using the same yardstick, the Forest Service here takes that logic too far in order to conclude that the Travel Plan complies with the Forest Plan.

Judge rules in favor of plaintiffs against agency travel plan


March 12, 2015

Contacts: Gary Macfarlane or Brett Haverstick, Friends of the Clearwater (208) 882-9755

Al Poplawsky, Palouse Group-Sierra Club (208) 669-1065
Mike Garrity, Alliance for the Wild Rockies (406) 459-5936
Dave Bahr, Bahr Law Offices (541) 556-6439

MOSCOW, ID-Yesterday afternoon, the honorable Judge Edward Lodge ruled on the legal challenge brought forth by Friends of the Clearwater, Palouse Group-Sierra Club and Alliance for the Wild Rockies on the Clearwater National Forest Travel Plan. The plaintiffs challenged the sufficiency of the federal agencies’ analysis and the lack of compliance with executive orders on minimizing off-road vehicle impacts. Judge Lodge ruled that the Forest Service failed to adequately protect wildlife habitat and, indeed, had not minimized impacts from off-road vehicles.

Attorney for the groups, David Bahr, said, “We are pleased that the judge agreed with us that the travel plan does not use the best available science to protect elk and does not minimize motorized use impacts as the law requires.”

The 38-page ruling clearly addresses the failings of the Forest Service’s decision. The plaintiffs believe that the ruling will result in greater protection for wildlands and wildlife on the Clearwater National Forest.

Gary Macfarlane, of Friends of the Clearwater, stated, “This is great news for the public wildlands on the Clearwater National Forest. Places like Cayuse Creek and Fish & Hungery Creeks deserve protection and the ruling reflects that.”

“This is an important ruling for wildlife in the Clearwater. Wildlife habitat needs to be adequately protected from motorized intrusion, whether its via roads or trails,” added Al Poplawsky with the Palouse-Group Sierra Club.

Judge Lodge ruled that the agency did not use the best available science in making its decision, as outlined in the 1997 Interagency Guidelines for Evaluating and Managing Elk Habitats and Populations in Central Idaho.

The Forest Service needs to implement the best available science in measuring off-road vehicle impacts to species like elk,” said Brett Haverstick with Friends of the Clearwater. “The agency failed to apply the appropriate measures in order to comply with 100% Elk Habitat Effectiveness.”

Besides negative impacts to terrestrial species like elk, plaintiffs were also concerned about off-road vehicle impacts to aquatic species on the forest.

“Thanks to the members of Friends of the Clearwater for working hard to bring stronger protections to Clearwater Country,” said Mike Garrity with the Alliance for the Wild Rockies. “It’s important that the Forest Service follow the law and protect critical habitat for species like bull trout, too.”

Mar 102015

The Wildlife Services division of USDA shot and killed 19 wolves in northern Idaho's "to improve poor elk survival in the area," the state's Game and Fish department announced yesterday.

"In February, Idaho Fish and Game requested USDA Wildlife Services conduct a control action consistent with Idaho's predation management plan for the Lolo elk zone, where predation by several species is the major reason elk population numbers are considerably below management objectives. Ongoing wolf and elk research has shown that wolves have become the primary predator impacting calf and cow elk survival in the Lolo, contributing to a continual decline in total elk population."

"The Lolo elk population has declined from 16,000 elk in 1989 to roughly 2,100 elk in 2010, and possibly fewer than 1,000 this year, with predation and habitat changes among the chief causes of the decline. Fish and Game is focusing on habitat improvement operations, regulations on elk hunting, liberal seasons and bag limits on black bears, mountain lions, and wolves, and wolf control actions to improve elk populations."

The action was promptly criticized by Defenders of Wildlife.

"The federal government spent millions of dollars helping to restore and recover wolves in the Northern Rockies, [but] it is now helping Idaho slaughter wolves to boost elk populations, causing the situation for wolves to grow more dire," said Defenders President Jamie Rappaport Clark.

The Game and Fish department said it did not yet have a cost estimate "for last month's wolf control action in the Lolo elk zone. The entire cost will be paid using Wolf Depredation Control Board money funded by sportsmen and women through purchase of hunting licenses."

Clark said that "the number of breeding pairs of wolves surviving in the Idaho wild has been plummeting ever since the state was given back control over wolves.  In 2011, there were 40 breeding pairs in the state, but by the end of 2014, estimates projected that number as having declined by 45 percent to 62 percent. Based on these plummeting numbers of breeding pairs, the future of Idaho’s wolves is increasingly grim."

In two separate lawsuits, environmental groups have taken Wildlife Services to court over wolf killings. The Western Environmental Law Center just last week filed a lawsuit in Washington state on behalf of five groups (press release). That action came about a month after a separate lawsuit was filed in Idaho against WS (see release on that lawsuit from Western Watersheds Project).

WWP was joined in the suit by WildEarth GuardiansCenter for Biological DiversityFriends of the Clearwater, and Project Coyote.

In the case in Washington, WELC is representing Cascadia Wildlands, WildEarth Guardians, Kettle Range Conservation Group, Predator Defense, and The Lands Council.


Nov 252014

Update (Dec. 2, 2014):

Environmental groups also are pushing to stop the hunt on adjacent FS lands. Here's a letter from Western Watersheds Project, Advocates for the West, Defenders of Wildlife, Center for Biological Diversity, and Project Coyote.

Update: BLM released a statement and its decision to rescind the afternoon of Nov. 25th. Scroll down to read it.

The Bureau of Land Management has decided to cancel a planned hunt for wolves, coyotes and other species on about 3 million acres in Idaho.

The permit for the so-called "predator derby" would have allowed three days of hunting each year for five years, starting Jan. 2. The Center for Biological Diversity, Western Watersheds Project, Project Coyote and Defenders of Wildlife had filed a lawsuit challenging the hunt and were waiting for BLM's response to the groups' request for an expedited briefing schedule.

The hunt is still scheduled to occur on Forest Service lands, however. (see above for update)

Juvenile coyotes are often heard in summer, trying out their voices (Washington Dept. of Fish and Wildlife)

“We’re so glad that the deadly derby has been canceled this year,” said Amy Atwood, senior attorney at the Center for Biological Diversity, who represents the Center, Western Watersheds Project and Project Coyote. “These sort of ruthless kill-fests have no place in this century. We intend to pursue every available remedy to stop these horrible contests.” (Press release from environmental groups)

"The hunt would have allowed up to 500 participants compete to kill the largest number of wolves, coyotes and other animals for cash and prizes," the groups' press release said. "Contest organizers are hoping to expand their contest statewide."

BLM has yet to comment publicly on why it stopped the contest. Calls to BLM in Idaho and to a lawyer with derby organizer Idaho for Wildlife have yet to be returned. The court docket also has no filing from BLM.

"I believe that DOJ didn’t want to defend our motion because we have a good record," Atwood said.

According to the bureau's Finding of No Significant Impact, "For the purposes of the competition, predators include a variety of species, including, wolves, coyotes, weasels, skunks, jackrabbits, raccoons, and starlings. All rules and hunting regulations would be followed and adhered to by all participants."

BLM grants permit (11/13/14)

Public comment period open on permit (10/2/14)

BLM statement, 11/25/14

After careful consideration, the BLM has decided to withdraw the Record of Decision for the Predator Hunt Derby Special Recreation Permit. This comes as a result of uncertainties about the details of the Predator Hunt as provided by Idaho for Wildlife and operational changes that occurred after the Decision was released which then created ambiguity, making it difficult to conclusively determine whether an SRP was required, appropriate or administratively subject to a waiver under our regulations.

Full decision follows

Nov 142014

Environmental groups are suing the Bureau of Land Management over approval of a "predator derby" on 3.1 million acres of BLM lands in Idaho (Defenders of Wildlife v. Kraayenbrink, 14-487, D. Id.).

The agency's Environmental Assessment, Finding of No Significant Impact and Decision Record "rely on numerous factual and legal misstatements, omissions, and unwarranted assumptions to downplay potentially significant adverse impacts to wildlife populations, recreational use, [Wilderness Study Areas], and other environmental values," the complaint says.

Approval of the derby is "directly contrary to the federal government’s wolf reintroduction efforts," the suit says. "[U]p to 500 entrants will compete over a three-day period each winter – starting on January 2, 2015 – to see who can kill the most and largest wolves and coyotes, and win cash and prizes." The lawsuit seeks to have the EA/FONSI and decision record vacated and reversed.

In addition to Defenders, other plaintiffs are the Center for Biological Diversity, Project Coyote and Western Watersheds Project.

“We are aware of the social controversy regarding the event,” said Joe Kraayenbrink, BLM's Idaho Falls District Manager. “However, from our analysis, we could not find significant conflicts with other environmental resources that would prohibit the competitive event from occurring."

Unless stopped by the court, the derby will take place on about 3.1 million acres of land managed by the Challis, Salmon, and Upper Snake Field Offices of BLM's Idaho Falls District. "For the purposes of the competition, predators include a variety of species, including, wolves, coyotes, weasels, skunks, jackrabbits, raccoons, and starlings," BLM's EA says.

"Participants will bring their harvested predators to a location on private property within Salmon, where they will compete on a point system based on the number and types of predators harvested," the EA says.

The event promoter is Idaho for Wildlife, which states on its website that its mission is "to protect Idaho's hunting and fishing heritage. To fight against all legal and legislative attempts by the animal rights and anti-gun organizations who are trying to take away our rights and freedoms under the constitution of the United States of America. To hold all Government and State Agencies who are stewards of our Wildlife accountable and ensure that science is used as the primary role four our Wildlife management."

Press release on lawsuit

Sep 302014

The Bureau of Land Management must look closely at the impact of grazing on greater sage-grouse, U.S. District Judge B. Lynn Winmill ruled Monday, Sept. 29 (Western Watersheds Project v. Jewell, 08-435-BLW, D. Id.).

Western Watersheds Project called the decision a "big win" and said it's significant for a few reasons.

"Judge Winmill found that the BLM violated the National Environmental Policy Act (NEPA) by failing to properly disclose the cumulative impacts of its decisions and by failing to consider ending grazing on the allotments in any of the alternatives to proposed management," WWP said in its press release.

"Moreover, Judge Winmill ruled that the BLM must include mandatory terms and conditions to protect sage-grouse, including specific restrictions to address such things as stubble height, stream bank alteration, and utilization. Voluntary measures will not serve."

The judge also said BLM cannot avoid evaluating grazing permits under the Federal Land Policy and Management Act, notwithstanding the passage of a congressional rider that exempts permit renewals from NEPA review.

"While § 325 [the congressional rider] tolls the BLM’s obligation to proceed with environmental obligations imposed by laws like NEPA, it carves out an exception for FLPMA and requires a continuing obligation to follow that statute," Winmill wrote.

"BLM is still obliged to consider ongoing environmental degradation and comply with the Fundamentals of Rangeland Health," said WWP. "This is an important precedent because the BLM has a bad habit of allowing harmful status quo grazing to continue while it defers NEPA analysis."

Winmill did not halt grazing while BLM "makes the changes dictated by this decision."


Cumulative impacts  Page 14

"The cumulative impacts analysis in the EA at issue in round two suffers from the same flaws. Once again the sage grouse habitat is degraded – three of the four allotments violated the FRH Standard 8, the Sensitive Species Standard. The cumulative impacts section contains no real discussion of the conditions of sage-grouse in these surrounding allotments.

"This failure is all the more acute because, as will be discussed further below, the BLM is avoiding environmental reviews for many permit renewals. For permits renewed under the 2003 grazing rider, the BLM has taken the position that it need not do any NEPA or FLPMA review. The BLM has now renewed over 150 permits under the rider without any environmental review. The effect of unexamined permit renewals in the area would be critical to determining cumulative impacts.

"The Court recognizes that it must scour the entire EA to determine if the cumulative impact analysis could be enhanced by reading the EA in its entirety and not just focusing on the section labeled “Cumulative Impacts.” See Ctr. for Envtl. Law & Policy v. U.S. BOR, 655 F.3d 1000 (9th Cir. 2011). But the necessary cumulative impacts discussion cannot be found anywhere in the EA.

"For all of these reasons the Court finds that the EA evaluating the four allotments at issue here violated NEPA by failing to contain an adequate cumulative impacts analysis.

NEPA – Failure to Consider Alternatives Including No-Action Alternative Page 15

"This Court held in its decision on the first round of motions that the failure to consider alternatives to the existing grazing levels, and the failure to evaluate a no-grazing alternative, violates NEPA. WWP v. Salazar, supra.

"In this case, the EA failed to identify reasonable alternatives. The existing grazing levels were contributing to sage grouse habitat degradation and yet the EA evaluated no alternative that would have reduced grazing levels and/or increased restrictions on grazing. The Ninth Circuit has recently struck down a NEPA analysis where each alternative permitted grazing at the same level. WWP v. Abbey, 719 F.3d 1035 (9th Cir. 2013). For the same reason, the EA in this case violated NEPA."

Grazing rider - page 18

The parties identify 9 permits that were renewed under the terms of the 2003 grazing rider contained in § 325 of Public Law 108-108. All of these permits govern grazing on allotments outside the Jim Sage allotments. The BLM’s Burley Field Office has used the grazing rider to renew grazing permits without doing any NEPA or FLPMA review in 168 of 200 allotments since 2005.

More quotes from decision

Winmill noted that BLM's 2001 Special Status Species Policy requires that “sensitive” species "be afforded, at a minimum, the same protections as candidate species for listing under the ESA, and makes BLM Field Office managers responsible for implementing the policy." (page 7)

Greater sage grouse populations have been declining for at least 25 years. The 2004 Conservation Assessment, prepared by the leading scientific experts, concluded that every major metric in sage grouse population abundance has declined over the last 50 years. The declining populations are occurring as sage brush habitat disappears. The leading experts concluded in the Idaho Conservation Plan that “[t]he loss and fragmentation of sage-grouse habitat in some parts of Idaho are of major concern.” See Conservation Plan at p. 3-3. The top four causes of this habitat loss and fragmentation in Idaho are (1) wildfire, (2) infrastructure, (3) annual grasses, and (4) livestock impacts. Id. at p. 4-3." (page 6)


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.


Apr 252012

The Ninth Circuit has invalidated $183,160 in attorney fees that had been awarded to Western Watersheds Project for work the group did in the Interior Board of Land Appeals, prior to filing a lawsuit in federal court in Idaho (Western Watersheds Project v. U.S. Dep't of the Interior, 10-35836).

In its ruling today (Wednesday, April 25), the appeals court said U.S. District Court Judge B. Lynn Winmill had relied incorrectly on a 1989 Supreme Court decision that dealt with "a very unusual type of social security case" (Sullivan v. Hudson, 490 U.S. 877, 1989). In that decision, the court found that fees could be awarded for administrative proceedings under § 2412(d)(1)(A) if the administrative proceedings were “intimately tied to the resolution of the judicial action,” and “necessary to the attainment of the results Congress sought to promote by providing for fees.”

Relying upon this language, the district court here awarded fees incurred in the administrative proceedings. It reasoned that the administrative proceedings were “intimately tied” to its resolution of the district court action because the court was called upon to review the administrative proceedings and relied upon the record compiled by WWP before the ALJ. It concluded that WWP should be compensated for that work as well as the work done in district court. Under its reasoning, fees would be recoverable for most administrative  proceedings in which the district court relies on the administrative record.

But Hudson is a different type of case, the Ninth Circuit said. And, it added, the Supreme Court has subsequently clarified and narrowed the exception to the general rule prohibiting the award of fees for administrative proceedings.

The Court, within two years after Hudson, emphasized that because [the Equal Access to Justice Act] is a partial waiver of sovereign immunity it “must be strictly construed in favor of the United States.” Ardestani v. INS, 502 U.S. 129, 137 (1991). Following this principle, the Court has stated consistently that fees for administrative proceedings can only be awarded under § 2412(d)(1)(A) if the district court ordered the further proceedings, and the district court action remained pending until the conclusion of the administrative proceedings. See Melkonyan v. Sullivan, 501 U.S. 89, 96-97 (1991).

The court said its own decisions have narrowly construed Hudson, and that Congress "has spoken directly to the subject of fees for administrative grazing-permit proceedings and has
rejected them. Section 504(a) allows administrative fee awards to prevailing parties in administrative proceedings that involve 'adversary adjudications,' but goes on to exclude
licensing proceedings."

More links coming...




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."


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.

Nov 272011

Solicitor General Donald B. Verrilli Jr. has filed the government's brief in a wetlands enforcement case to be argued before the Supreme Court Jan. 9 (Sackett v. EPA, 10-1062).

The Sacketts' lot in Priest Lake, Idaho

In the brief, docketed with the court Wednesday, Nov. 23, the United States contends that Chantell and Michael Sackett, Idaho landowners who filled a half-acre of wetlands on their Priest Lake property with dirt and rock in preparation for building a home, "have no constitutional right to immediate judicial review" of EPA's 2007 compliance order requiring them to remove the fill and restore the wetlands to their original state.

"Petitioners cannot be subjected to civil penalties for violating the order unless and until a court determines that a CWA violation has occurred and considers the statutory factors bearing on the appropriate penalty amount," the government brief says. "Although the risk of civil-penalty liability might deter some persons from engaging in discharges that would not actually violate the CWA, that potential deterrent effect would exist even if EPA had not issued a compliance order because the Act itself imposes liability for unlawful discharges. Petitioners have no generalized constitutional entitlement to an advisory opinion assessing the legality of conduct in which they wish to engage. Petitioners, moreover, face a choice between complying with the order and defending against a possible enforcement action only because they discharged fill on their property without first seeking a permit or consulting with EPA or the Corps. If petitioners had sought a permit, they could have obtained a final agency determination on the question of CWA coverage, and immediate judicial review of that determination, without exposing themselves to potential penalties."

Compliance orders "fall within the broad range of communications that agencies use to in­form regulated parties of governing legal requirements and existing violations, to encourage voluntary compli­ance or remedial measures, and to initiate consultation between the agency and the regulated person," the government said. "Courts have widely recognized that, when agencies issue such communications, a recipient who disagrees with the gov­ernment’s legal or factual assessments generally has no right to immediate judicial resolution of the disagree­ment. A rule that broadly authorized immediate judicial review of such agency communications would ultimately disserve the interests of both the government and regu­lated parties, by discouraging interactive processes that can obviate the need for judicial action."

In addition, the compliance order is not "final agency action," the brief said. Here's the excerpt from that section of the government's summary of its argument:

The compliance order is not “final agency action.” See 5 U.S.C. 704. A Section 309(a)(3) order marks only a step in EPA’s decision-making process, not its consum­mation.  The order invited petitioners to contact EPA if they believed that the allegations in the order were inac­curate or that the specified compliance measures were infeasible. Even if petitioners failed to implement the specified measures, moreover, they could be subjected to monetary sanctions for violating the order only if (a) EPA commenced a Section 309(b) enforcement action against petitioners, and (b) the court in that suit deter­mined that petitioners had violated the CWA as well as the order.  The order therefore did not have the kind of concrete legal consequences that generally are neces­sary to constitute “final agency action.” See Bennett v. Spear, 520 U.S. 154, 177-178 (1997); FTC v. Standard Oil Co. of Cal., 449 U.S. 232, 239-243 (1980) (Standard Oil).


Pacific Legal Foundation (representing the Sacketts)

Google search results with more