The following is the preliminary injunction decision in its entirety:
Case 9:08-cv-00056-DWM Document 104 Filed 07/18/2008 Page 1 of 40
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
DEFENDERS OF WILDLIFE, NATURAL ) CV 08-56-M-DWM
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 PROJECT, )
WESTERN WATERSHEDS PROJECT, and )
WILDLANDS PROJECT, )
)
Plaintiffs, )
)
vs. ) ORDER
)
H. DALE HALL, U.S. Fish and )
Wildlife Service Director; DIRK )
KEMPTHORNE, Secretary of the )
Interior; and UNITED STATES FISH )
AND WILDLIFE SERVICE, )
)
Defendants. )
)
and )
)
SAFARI CLUB INTERNATIONAL; SAFARI )
CLUB INTERNATIONAL FOUNDATION; THE )
NATIONAL RIFLE ASSOCIATION OF )
AMERICA; STATE OF MONTANA; MONTANA )
DEPARTMENT OF FISH, WILDLIFE, AND )
PARKS; STATE OF IDAHO; GOVERNOR )
C.L. “BUTCH” OTTER; IDAHO FISH AND )
-1
Case 9:08-cv-00056-DWM Document 104 Filed 07/18/2008 Page 2 of 40
GAME COMMISSION; IDAHO DEPARTMENT )
OF FISH AND GAME; IDAHO OFFICE OF )
SPECIES CONSERVATION; STATE OF )
WYOMING; SPORTSMEN FOR FISH AND )
WILDLIFE; MONTANA STOCKGROWERS )
ASSOCIATION, INC.; MONTANA FARM )
BUREAU FEDERATION; WESTERN MONTANA )
FISH AND GAME ASSOCIATION, INC.; )
MONTANA SHOOTING SPORTS )
ASSOCIATION, INC.; FRIENDS OF THE )
NORTHERN YELLOWSTONE ELK HERD; )
WYOMING STOCK GROWERS ASSOCIATION, )
INC., )
)
Defendant-Intervenors. )
___________________________________)
I. Introduction
This case, like a cloud larger than a man’s hand, will hang
over the northwest states of Montana, Idaho, and Wyoming until
there has been a final determination of the complex issues
presented. Those issues must be answered in accordance with the
intent of Congress as stated in the Endangered Species Act and
its implementing regulations. Here, Plaintiffs challenge the
U.S. Fish & Wildlife Service’s decision to designate and delist a
northern Rocky Mountain gray wolf distinct population segment
under the Endangered Species Act (“ESA”), 16 U.S.C. § 1536. In
seeking to alter the course of that decision, Plaintiffs move for
a preliminary injunction. They ask the Court to reinstate ESA
protections for the wolf, at least while this lawsuit is pending.
In support of their motion, Plaintiffs argue (1) even though the
environmental impact statement on wolf reintroduction
-2
Case 9:08-cv-00056-DWM Document 104 Filed 07/18/2008 Page 3 of 40
specifically conditions the delisting decision on a Finding of
Subpopulation Genetic Exchange, the Fish & Wildlife Service
delisted the wolf when there is no plausible showing of that
genetic exchange between the Greater Yellowstone core recovery
area and the northwestern Montana and central Idaho core recovery
areas; (2) the Service approved Wyoming’s 2007 wolf management
plan even though the Wyoming plan still contains provisions that
the Service earlier deemed inadequate; and (3) the Fish &
Wildlife Service did not consider the several states’ liberal
defense of property laws in concluding the states’ wolf
management plans were adequate. The argument concludes with the
claim that a preliminary injunction is necessary because wolves
are not likely to survive the increased incidents of human-caused
mortality that will occur under state management.
In my view, Plaintiffs are likely to succeed on the
majority of the claims relied upon in their request for a
preliminary injunction. In particular, (1) the Fish & Wildlife
Service acted arbitrarily in delisting the wolf despite a lack of
evidence of genetic exchange between subpopulations; and (2) it
acted arbitrarily and capriciously when it approved Wyoming’s
2007 plan despite the State’s failure to commit to managing for
15 breeding pairs and the plan’s malleable trophy game area. In
both instances, the Fish & Wildlife Service altered its earlier
position without providing a reasoned decision for the change
-3
Case 9:08-cv-00056-DWM Document 104 Filed 07/18/2008 Page 4 of 40
based on identified new information.
As recently as 2002, the Service determined genetic exchange
between wolves in the Greater Yellowstone, northwestern Montana,
and central Idaho core recovery areas was necessary to maintain a
viable northern Rocky Mountain wolf population in the face of
environmental variability and stochastic events. The Fish &
Wildlife Service nevertheless delisted the wolf without any
evidence of genetic exchange between wolves in the Greater
Yellowstone core recovery area and the other two core recovery
areas. To justify its decision, the Service relied on the same
information that was available to it when it determined genetic
exchange was necessary in 2002.
In 2004, the Fish & Wildlife Service rejected Wyoming’s 2003
wolf management plan. The Service determined the 2003 plan was
inadequate to protect wolves because it permitted Wyoming state
officials to classify the wolf as a predatory animal throughout
the state and then failed to clearly commit the state to managing
for 15 breeding pairs within its borders. Before delisting the
wolf, the Fish & Wildlife Service approved Wyoming’s revised 2007
plan. This revised plan suffers from the same deficiencies as
the 2003 plan: it classifies the wolf as a predatory animal in
almost 90 percent of the state and only commits the state to
managing for 7 breeding pairs outside the national parks. In
supporting its decision to approve Wyoming’s 2007 plan, the
-4
Case 9:08-cv-00056-DWM Document 104 Filed 07/18/2008 Page 5 of 40
Service does not offer any information not available to it when
it rejected the 2003 plan. Armed with the same information, the
agency flip-flopped without explanation. While the Fish &
Wildlife Service can change its recovery criteria, it must
nevertheless provide a reasoned analysis for the change of
position and if it does so, its decision is entitled to
deference. The Service has failed to do so here. Thus, in my
view, Plaintiffs are likely to succeed on several of their
claims.
Plaintiffs have also shown a significant possibility of
irreparable injury. More wolves will be killed under state
management than were killed when ESA protections were in place.
Idaho, Montana, and Wyoming each have public wolf hunts scheduled
for this fall. Additionally, the states’ defense of property
laws permit the killing of wolves in more circumstances than
defense of property regulations under the ESA. The killing of
wolves during the pendency of this lawsuit will further reduce
opportunities for genetic exchange among subpopulations. Genetic
exchange that did not take place between larger subpopulations
under ESA protections is not likely to occur with fewer wolves
under state management. Absent genetic exchange, the viability
of the wolf will be threatened by future environmental
variability and stochastic events.
Because Plaintiffs have demonstrated a likelihood of success
-5
Case 9:08-cv-00056-DWM Document 104 Filed 07/18/2008 Page 6 of 40
on the merits of several of their claims and the possibility of
irreparable injury, their motion for a preliminary injunction is
granted. The limited preliminary relief will reinstate ESA
protections for the northern Rocky Mountain gray wolf to ensure
the species is not imperiled during the pendency of this lawsuit.
II. Factual Background
The gray wolf is the largest wild member of the dog family.
72 Fed. Reg. 6106 (Feb. 8, 2007). Wolves generally live in packs
of 2 to 12 animals and have strong social bonds. Id. at 6107.
Wolf packs consist of a breeding pair (the alpha male and alpha
female), their offspring from previous years, and an occasional
unrelated wolf. Id. Generally, only the alpha male and alpha
female of a pack breed. Id. Litters are born in April and
average around 5 pups. Id. All pack members help feed and
protect the pups as they grow. Pups are weaned at 5 to 6 weeks
and then are mature enough to travel with the pack by around
October. Packs typically occupy territories from 200 to 500
square miles. Each pack will defend its territory against other
wolves and wolf packs. Id.
Wolves were once abundant throughout most of North America.
Id. at 6106. Wolf hunting and an active, government-sponsored
eradication program resulted in the extirpation of wolves from
more than 95 percent of their range in the lower 48 states. Id.
at 6106, 6125. They were exterminated in Idaho, Montana,
-6
Case 9:08-cv-00056-DWM Document 104 Filed 07/18/2008 Page 7 of 40
Wyoming, and adjacent southwestern Canada by the 1930s. Id. at
6107.
The Northern Rocky Mountain gray wolf was listed under the
ESA in 1974. 39 Fed. Reg. 1171 (Jan. 4, 1974). In 1987, the
Fish & Wildlife Service developed a wolf recovery plan. 72 Fed.
Reg. at 6107. This plan established a recovery goal of at least
10 breeding pairs and at least 100 wolves for three consecutive
years in each of three core recovery areas: northwestern Montana,
central Idaho, and the Greater Yellowstone area. Id.
In 1994, the Fish & Wildlife Service proposed designating
portions of Idaho, Montana, and Wyoming as two nonessential
experimental population areas for the gray wolf under § 10(j) of
the ESA. 59 Fed. Reg. 60,252 (November 22, 1994); 59 Fed. Reg.
60,266 (November 22, 1994). Before introducing the experimental
wolf populations, the Service prepared an Environmental Impact
Statement on the Reintroduction of Gray Wolves to Yellowstone
National Park and Central Idaho (the “1994 EIS”). 72 Fed. Reg.
at 6107. Northwestern Montana was not included because the
wolves had moved naturally into that part of the state. The 1994
EIS evaluated whether the population goals for delisting wolves
contained in the 1987 recovery plan would result in a viable wolf
population. 1994 EIS, App. 9. The same EIS concluded that the
plan goal of 10 breeding pairs and 100 wolves in three separate
recovery areas for a period of three consecutive years was
-7
Case 9:08-cv-00056-DWM Document 104 Filed 07/18/2008 Page 8 of 40
“somewhat conservative . . . and should be considered minimal.”
1994 EIS, App. 9, at 42. It noted “[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
should have a high probability of long-term persistence.” 1994
EIS, App. 9, at 42. Over the next two years, in 1995 and 1996,
the Service reintroduced wolves captured in southwestern Canada
into central Idaho and into the Greater Yellowstone Area. 72
Fed. Reg. at 6108.
The northern Rocky Mountain wolf population met the Fish &
Wildlife Services’ numeric recovery goal of 30 breeding pairs and
300 wolves for the first time in 2000. Id. In late 2001 and
early 2002, the Service conducted another evaluation of what
constitutes a recovered wolf population and reaffirmed the
recovery criteria set forth in the 1994 EIS. Id. at 6107. The
criteria included genetic exchange between the three
subpopulations. By the end of 2007, the northern Rocky Mountain
wolf population had achieved the Service’s numerical recovery
goal for eight consecutive years. Id. at 6108. It had not
achieved genetic exchange between the three subpopulations.
The Service then asked the states of Idaho, Montana, and
Wyoming to prepare wolf management plans, specifying how each
state would manage wolves after delisting. The Service approved
-8
Case 9:08-cv-00056-DWM Document 104 Filed 07/18/2008 Page 9 of 40
the Idaho and Montana wolf management plans in January 2004, but
it rejected Wyoming’s plan. Id. at 6127; First Harbine Decl. Ex.
11. In early 2007, the Service proposed designating a northern
Rocky Mountain gray wolf distinct population segment and removing
it from the ESA’s threatened and endangered species list. 72
Fed. Reg. 6106. Even so, the Service stated unless and until
Wyoming developed an adequate wolf management plan, wolves in
Wyoming outside the national parks would remain on the endangered
species list. Id. at 6117. Wyoming subsequently revised its
management plan, and the Service announced it was satisfied with
Wyoming’s new plan. First Harbine Decl. Ex. 12.
On February 27, 2008, the Fish & Wildlife Service issued a
final rule designating a northern Rocky Mountain gray wolf
distinct population segment and removing it from the list of
threatened and endangered species. 73 Fed. Reg. 10,514 (Feb. 27,
2008). The distinct population segment takes in all of Idaho,
Montana, and Wyoming. It also includes eastern Washington,
eastern Oregon, and northern Utah. Id. at 10,518. Wolf packs
are known to occupy only a portion of this area. The areas with
known wolf packs include northwestern Montana, central Idaho, and
the Greater Yellowstone Area. Id.
III. Statutory Background
A. Endangered Species Act
The ESA is meant to conserve the ecosystems upon which
-9
Case 9:08-cv-00056-DWM Document 104 Filed 07/18/2008 Page 10 of 40
endangered and threatened species depend and to provide a program
for the conservation of such species. 16 U.S.C. § 1531(b). To
this end, Congress enacted Section 4 of the Act which requires
species that are in danger of extinction to be listed as
endangered or threatened after public notice and comment. Id. §
1533. The ESA defines “species” to include “any distinct
population segment of any species of vertebrate fish or wildlife
which interbreeds when mature.” Id. § 1532(16). An endangered
species is “any species which is in danger of extinction
throughout all or a significant portion of its range.” Id. §
1532(6). A threatened species is “any species which is likely to
become an endangered species within the foreseeable future
throughout all or a significant portion of its range.” Id. §
1532(20).
Through the ESA, Congress requires the Secretary to examine
five factors when determining whether a species is threatened or
endangered. Id. § 1533(a)(1). The factors include:
(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;
[and]
(E) other natural or manmade factors affecting its
continued existence.
-10
Case 9:08-cv-00056-DWM Document 104 Filed 07/18/2008 Page 11 of 40
Id. Any one of the factors is sufficient to support a listing
determination if that factor causes the species to be in danger
of extinction or likely to become an endangered species in the
foreseeable future throughout all or a significant portion of its
range. See id. Listing decisions must be made “solely on the
basis of the best scientific and commercial data available.” Id.
§ 1533(b)(1)(A); 50 C.F.R. § 424.11(b). Listings must be made
without reference to possible economic or other impacts of such a
determination. 16 U.S.C. § 1533(b)(1)(A); 50 C.F.R. § 424.11(b).
If a species is listed as endangered or threatened, all
Federal departments and agencies must seek to conserve the
species. 16 U.S.C. § 1531(c).
B. Administrative Procedure Act
Judicial review of an agency’s compliance with the ESA is
governed by the judicial review provisions of the APA. Or.
Natural Res. Council v. Allen, 476 F.3d 1031, 1035 (9th Cir.
2007). Agency decisions can only be set aside under the APA if
they are “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” Citizens to Pres. Overton
Park, Inc. v. Volpe, 401 U.S. 402 (1971) (quoting 5 U.S.C. §
706(2)(A), overruled on other grounds by Califano v. Sanders, 430
U.S. 99 (1977)). Review under the arbitrary and capricious
standard is “narrow,” but “searching and careful.” Marsh v. Or.
Natural Res. Council, 490 U.S. 360, 378 (1989). Agency action
-11
Case 9:08-cv-00056-DWM Document 104 Filed 07/18/2008 Page 12 of 40
can be set aside “if the agency has relied on factors which
Congress has not intended it to consider, entirely failed to
consider an important aspect of the problem, offered an
explanation for its decision that runs counter to the evidence
before the agency, or is so implausible that it could not be
ascribed to a difference in view or the product of agency
expertise.” Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43 (1983). When an agency action is
challenged, a court must ask “whether the [agency’s] decision was
based on a consideration of the relevant factors and whether
there has been a clear error of judgment . . . [The court] also
must determine whether the [agency] articulated a rational
connection between the facts found and the choice made. [The]
review must not rubber-stamp . . . administrative decisions that
[the court deems] inconsistent with a statutory mandate or that
frustrate the congressional policy underlying a statute.” Ocean
Advocates v. U.S. Army Corps of Eng’rs, 402 F.3d 846, 859 (9th
Cir. 2005) (internal citations and quotations omitted). Although
the court’s review must be searching, the court may not
substitute its judgment for that of the agency or merely
determine it would have decided an issue differently. Or.
Natural Res. Council, 476 F.3d at 1035.
IV. Preliminary Injunction Standard
The parties disagree about which standard the Court should
-12
Case 9:08-cv-00056-DWM Document 104 Filed 07/18/2008 Page 13 of 40
apply in ruling on Plaintiffs’ motion for a preliminary
injunction. The Ninth Circuit has articulated three different
standards for issuance of a preliminary injunction. “Under the
traditional test, a plaintiff must show: (1) a strong likelihood
of success on the merits, (2) the possibility of irreparable
injury to plaintiff if preliminary relief is not granted, (3) a
balance of hardships favoring the plaintiff, and (4) advancement
of the public interest (in certain cases).” Ranchers Cattleman
Action Legal Fund v. USDA, 415 F.3d 1078, 1092 (9th Cir. 2005)
(quotation omitted). “The alternative test requires that a
plaintiff demonstrate either a combination of probable success on
the merits and the possibility of irreparable injury or that
serious questions are raised and the balance of hardships tips
sharply in his favor.” Id. “The[] two formulations [in the
alternative test] represent two points on a sliding scale in
which the required degree of irreparable harm increases as the
probability of success decreases.” Id. at 1092–93; see also
Lands Council v. McNair, F.3d , 2008 WL 2640001, *3 (9th
Cir. July 2, 2008).
The third test applies to ESA injunctions. Applying this
test, the court must still measure the likelihood of success on
the merits as well as the possibility of irreparable injury. See
Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 422 F.3d
782, 795 (9th Cir. 2005). Unlike the two standards previously
-13
Case 9:08-cv-00056-DWM Document 104 Filed 07/18/2008 Page 14 of 40
described, however, once likelihood of success and irreparable
injury are shown, the court may not fine-tune its analysis by
weighing the hardships of the parties. Id. at 793–94. This
legal principal is a direct acknowledgment of congressional
intent. Under the ESA, “Congress has spoken in the plainest of
words, making it abundantly clear that the balance [of hardships]
has been struck in favor of affording endangered species the
highest of priorities,” and courts “may not use equity’s scales
to strike a different balance.” Id. at 794. What this means is
that if a plaintiff is likely to succeed on its ESA claim and
irreparable injury is possible, then the court should issue an
injunction when it is necessary to effectuate the purpose of the
ESA.1 Id. at 796.
The Intervenors in this case claim the third test only
applies when a species is listed as threatened or endangered at
the time a preliminary injunction is sought. The minor premise
of this syllogism is that because the northern Rocky Mountain
gray wolf is no longer listed, the traditional or alternative
1Plaintiffs interpret the third test as requiring only a showingof likely success on the merits. In National Wildlife Federation v.
National Marine Fisheries Service, 422 F.3d 782, 795 (9th Cir. 2005),
however, the Ninth Circuit assessed both the likelihood of success andthe possibility of irreparable harm. Thus, the third test requires a
showing of possible irreparable harm. Nat’l Wildlife Fed’n v.
Burlington N. R.R., 23 F.3d 1508, 1511 (9th Cir. 1994) (“[T]hese casesdo not stand for the proposition that courts no longer must look atthe likelihood of future harm before deciding whether to grant aninjunction under the ESA”). What the test prevents is the court’sconsideration of hardships to the Fish & Wildlife Service and the
Intervenors in determining whether to issue a preliminary injunction.
-14
Case 9:08-cv-00056-DWM Document 104 Filed 07/18/2008 Page 15 of 40
test should be applied. Even though the third test has only been
applied in cases involving species that were listed at the time a
preliminary injunction was sought, the cases, nonetheless, speak
of the ESA and its purposes in broad terms and thus do not
preclude applying the third test to delisting decisions. If this
were not the case, the intent of Congress to grant listed species
the highest priority in the balance of concerns could be readily
circumvented. Moreover, a mistaken decision to delist a species
that still qualifies for protection under the ESA is no less
harmful to the species than a decision to implement a project
without consideration of its effects on an already listed
species. In the context of requests for permanent injunctive
relief in ESA cases, the Ninth Circuit instructs district courts
may not balance the hardships regardless of whether a plaintiff’s
challenge involves Section 7 (formal consultation) or Section 4
(listing/delisting) of the ESA. Biodiversity Legal Found. v.
Badgley, 309 F.3d 1166, 1177 (9th Cir. 2002) (refusing to balance
hardships in case challenging government’s failure to timely rule
on petitions to list certain species as threatened or
endangered). The same reasoning applies in the context of a
preliminary injunction. Because Congress has, in the plainest of
words, made a policy determination to give endangered or
threatened species the highest priority, the third test will be
applied in this case.
-15
Case 9:08-cv-00056-DWM Document 104 Filed 07/18/2008 Page 16 of 40
V. Analysis
A. Lack of Connectivity
Plaintiffs claim the Fish & Wildlife Service violated the
Endangered Species Act by delisting the wolf while knowing there
was a lack of genetic exchange between populations in the three
northern Rocky Mountain core recovery areas. The legal
deficiency claimed is that in doing so the Service ignored its
own recovery criteria and ignored the best science available. In
the 1994 EIS, the Fish & Wildlife Service identified specific
recovery criteria of “[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.” 1994 EIS, App. 9, at 42; 73 Fed. Reg.
at 10,521. Plaintiffs point to a 2007 genetics study
commissioned by the Fish & Wildlife Service (the “VonHoldt
Study”) that confirmed a metapopulation does not yet exist
because wolves in Yellowstone National Park have remained
genetically isolated from wolves in the northwestern Montana and
central Idaho core recovery areas since their reintroduction in
1995. First Harbine Decl. Ex. 9.
The argument is that without genetic exchange between core
recovery areas, wolves faces serious threats to survival. In
support of this claim, Plaintiffs rely on the VonHoldt Study as
well as the Fish & Wildlife Service’s own observations. The
-16
Case 9:08-cv-00056-DWM Document 104 Filed 07/18/2008 Page 17 of 40
VonHoldt Study concluded “if the Yellowstone wolf population
remains relatively constant at 170 individuals (estimated to be
Yellowstone’s carrying capacity), the population will demonstrate
substantial inbreeding effects within 60 years,” resulting in an
“increase in juvenile mortality from an average of 23 to 40%, an
effect equivalent to losing an additional pup in each litter.”2
First Harbine Decl. Ex. 9, at 19. The contention is bolstered by
Plaintiffs’ reasoning that the Fish & Wildlife Service itself
observed that without ongoing genetic exchange, isolated
subpopulations of merely 100 individuals and 10 breeding pairs
will not exhibit genetic diversity sufficient to withstand
environmental variability and stochastic events.
The Fish & Wildlife Service acknowledges there is no
evidence of genetic exchange between wolves in Yellowstone
National Park and the northwestern Montana or central Idaho core
recovery areas.3 Nevertheless, the Service now takes the
position that documented proof of DNA exchange is not required to
achieve a metapopulation under the 1994 EIS. According to the
Service and its recent interpretation, the 1994 EIS emphasizes
spacial distribution of wolves and the potential for genetic
2The Delisting Rule identified 100 years as the appropriate timeframe for assessing genetic threats. 73 Fed. Reg. 10,531.
3The northwestern Montana and central Idaho core recovery areasare well connected to each other, and to wolf populations in Canada,
through regular dispersals. These subpopulations have establishedgenetic and demographic linkages.
-17
Case 9:08-cv-00056-DWM Document 104 Filed 07/18/2008 Page 18 of 40
exchange. The Fish & Wildlife Service argues that the 1994 EIS
does not define the term “genetic exchange” and it does not
discuss the need for proof of DNA exchange. The Service
concludes the potential for genetic exchange contemplated by the
1994 EIS has been achieved because of documented cases of
dispersal between the Greater Yellowstone core recovery area and
the other two core recovery areas.
Even if the 1994 EIS requires documented proof of DNA
exchange, the Fish & Wildlife Service maintains its decision to
delist the wolf was not arbitrary and capricious. The Service
now claims that meeting the criteria in a recovery plan is not
dispositive of whether a species should be delisted. This
argument is in turn predicated on the proposition that the
Service’s decision was properly based on its consideration of the
five criteria set forth in the ESA regardless of the 1994 EIS’s
goals. See 16 U.S.C. § 1533(a)(1). In particular, the Service
stresses its determination that the lack of genetic connectivity
between wolves in Yellowstone National Park and the wolves in the
rest of the northern Rocky Mountains is not a threat to survival
of the species because there is a high level of genetic diversity
within the Yellowstone National Park population and evidence of
documented wolf dispersals. The Service refers to much smaller
wolf populations with lower levels of genetic diversity where the
wolves have still persisted for decades. The Service takes the
-18
Case 9:08-cv-00056-DWM Document 104 Filed 07/18/2008 Page 19 of 40
view that the VonHoldt Study’s dire predictions of inbreeding and
increased juvenile mortality are not based on the best available
science. If this determination is accurate, the balance of the
argument is that the Service’s experts were justified in
rejecting the Study’s predictions.4
The Fish & Wildlife Service’s assertion that the 1994 EIS
requires only the potential for genetic exchange, not actual
genetic exchange, is disingenuous. The 1994 EIS clearly requires
“a metapopulation . . . with genetic exchange between
subpopulations.” 1994 EIS, App. 9, at 42. The 1994 EIS does not
define the term “genetic exchange” because the term can only mean
one thing: exchange of genetic material between subpopulations.
Realizing the weakness of its argument regarding the
interpretation of the term “genetic exchange,” the Service next
suggests genetic exchange has occurred, but it was not detected
by the VonHoldt Study because of the Study’s limitations. The
Study sampled 30 percent of the wolves in Yellowstone National
Park and only conducted sampling until 2004. Bangs Decl. ¶ 18C.
In the absence of proof, the Service surmises wolves not sampled,
or wolves born after 2004, may have a genetic link with wolves in
other core recovery areas. Bangs Decl. ¶ 18C. The argument
continues with the observation that the VonHoldt Study looked
4The Intervenors raise arguments similar to those asserted by theService. They focus particularly on the deference owed to the Serviceand its decision.
-19
Case 9:08-cv-00056-DWM Document 104 Filed 07/18/2008 Page 20 of 40
only at wolves in Yellowstone National Park, not wolves in the
Greater Yellowstone core recovery area. Bangs Decl. ¶ 18C. The
Service then opines genetic exchange is more likely to have
occurred among wolves in the Greater Yellowstone core recovery
area because of documented dispersals into that area of wolves
from northwestern Montana and central Idaho. Mech Decl. ¶ 17;
Bangs Decl. ¶ 18C.
The Fish & Wildlife Service’s speculation about genetic
exchange is not convincing. The VonHoldt Study did not collect
DNA samples from every wolf in Yellowstone National Park. This
fact, however, does not render the Study, or its findings,
useless. There is no question about the adequacy of the Study’s
sample size or its statistical significance. Nor does the
Service contend the testing methods used in the Study were
flawed. None of the wolves tested in the Study showed a genetic
link to wolves in northwestern Montana or to wolves in central
Idaho. Additionally, in the thirteen years since wolves were
reintroduced in Yellowstone National Park, there have been only
four to twelve documented cases of wolves dispersing from or into
other core recovery areas. 73 Fed. Reg. 10,553. This limited
number of dispersals, along with the VonHoldt Study’s finding
that a sample of 30 percent of the wolves in Yellowstone National
Park showed no genetic connection with wolves in the other core
recovery areas, is strong evidence that genetic exchange has not
-20
Case 9:08-cv-00056-DWM Document 104 Filed 07/18/2008 Page 21 of 40
occurred.
In a final attempt to justify its decision to delist the
wolf, the Fish & Wildlife Service rejects its own recovery
criteria. The Service argues, even if the 1994 EIS recovery
criteria required genetic exchange and such exchange has not
occurred, the Service is entitled to change course and conclude
the continued existence of the species is not threatened by a
lack of genetic connectivity. The road less traveled may make
all the difference but the difference must be measured against
the law’s requirements.
While the Service is entitled to change its recovery
criteria, it must provide a “reasoned analysis” for doing so.
See Motor Vehicle Mfrs. Ass’n, 463 U.S. at 42 (1983). In this
case, the Service has not sufficiently justified or explained its
change of course. The obvious shift focuses exclusively on the
wolves’ success in meeting the recovery criterion of 30 breeding
pairs and 300 wolves. The genetic diversity requirement for
viability is pushed to the back burner of consideration with no
explanation of its precipitous drop in importance. The Service
instead suggests the 30/300 criterion is the magic tipping point
at which the wolves will no longer be endangered. Yet, in 1994,
the Service expressly rejected this numerical criterion in favor
of recovery criteria that required not only numerical abundance,
but also genetic exchange. The Service’s original conclusion
-21
Case 9:08-cv-00056-DWM Document 104 Filed 07/18/2008 Page 22 of 40
that “[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 should have a high probability of long-term
persistence” is created in a way left unexplained. 1994 EIS,
App. 9, at 42; see also id. (“It is fairly clear that ten
breeding pairs in isolation will not comprise a ‘viable’
population (i.e., have a high probability of survival for a long
period without human intervention)”); id. (“The importance of
movement of individuals between sub-populations cannot be
overemphasized.”). Although the Service now says genetic
exchange is unnecessary, it provides no persuasive reasons for
this change of course that were not known in 1994, when the new
criteria were established, or in 2001 and 2002, when the criteria
were reaffirmed.
In an effort to justify its change of course, the Service
focuses on the likelihood that genetic exchange will occur in the
near future. The Service points to evidence of wolf dispersals,
73 Fed. Reg. at 10,552—10,554; Bangs Decl. ¶ 18C, and the
inherent mobility of wolves, Mech Decl. ¶¶ 17, 19. Evidence of
four to twelve dispersers between Yellowstone National Park and
the northwestern Montana and central Idaho core recovery areas in
the last thirteen years is left hanging as a promising predictor
of future genetic exchange. Moreover, as the Service itself
-22
Case 9:08-cv-00056-DWM Document 104 Filed 07/18/2008 Page 23 of 40
acknowledges, the chance of future genetic exchange is lessened
considerably because more wolves will be killed under state
management plans than under the ESA. It stands to reason that
fewer wolves means less opportunity for dispersal and hence less
chance for genetic exchange, further undermining the argument
that the switch is not arbitrary.
The argument boils down to a contention that the original
requirement for genetic exchange now makes no difference for wolf
viability. The Service now argues wolves are not likely to
become endangered absent genetic exchange. In rejecting the
VonHoldt Study’s predictions of inbreeding and increased juvenile
mortality among Yellowstone National Park wolves, the Service
contends the Yellowstone National Park wolf population was
founded with high genetic diversity and its diversity continues
to be high. 73 Fed. Reg. at 10,552—10,554; Mech Decl. ¶ 14. It
resorts to the observation that much smaller, more isolated wolf
populations with lower levels of genetic diversity have persisted
for decades. 73 Fed. Reg. at 10,552—10,554; Mech Decl. ¶ 14.
For example, the Service points to a wolf population on Isle
Royale National Park in Michigan that began with two founders in
1949 and has remained very small (less than 50 wolves) and
isolated, but persisted until the present time. 73 Fed. Reg. at
10,552—10,554; Mech Decl. ¶ 14.
The rationale for rejecting the VonHoldt Study’s predictions
-23
Case 9:08-cv-00056-DWM Document 104 Filed 07/18/2008 Page 24 of 40
is not convincing nor well explained. When the Service
established the recovery criteria in the 1994 EIS, it knew that
the Yellowstone National Park population would be founded with
high genetic diversity. It also knew, or should have known, of
other isolated wolf populations that had survived despite lower
levels of genetic diversity. The Isle Royale National Park
population, for example, had been in existence since 1949.
Nevertheless, despite this knowledge, the Service concluded
genetic exchange was necessary to maintain a viable wolf
population. The Service provides no new evidence or research to
support its change of course. Congress does not intend agency
decision making to be fickle. When it is, the line separating
rationality from arbitrariness and capriciousness is crossed.
Although the Service’s recovery criteria are not binding,
the Service must provide adequate reasons for rejecting those
criteria. Here, the Service continues to stand behind one
component of the recovery criteria—30 breeding pairs and 300
wolves—but rejects another component—genetic exchange—as
unnecessary. In doing so, the Service provides no new evidence
or research that did not exist when the recovery criteria were
established. The Service cannot change course without reason.
The change of course is especially problematic in this case
because delisting will undeniably reduce the chances for future
genetic exchange. At oral argument, it was acknowledged that
-24
Case 9:08-cv-00056-DWM Document 104 Filed 07/18/2008 Page 25 of 40
once delisting takes place, it is nearly impossible to reverse
course. Although the Service finds comfort in the fact that
Idaho, Montana, and Wyoming have committed to managing for at
least 150 wolves in 15 breeding pairs, the record in the case
demonstrates genetic exchange is not likely to occur with these
numbers. At the time of delisting, there were approximately
1,513 wolves in 106 breeding pairs in the northern Rocky
Mountains. Jimenez Decl. ¶ 3. Genetic exchange that did not
occur under these conditions is not likely to occur with fewer
wolves and fewer breeding pairs. Because the wolf does not meet
the 1994 EIS recovery criteria and the Fish & Wildlife Service
has not provided adequate reasons for rejecting those criteria,
Plaintiffs are likely to succeed on their lack of connectivity
claim.
B. State Regulatory Mechanisms
1. Wyoming’s 2007 Wolf Management Plan
Plaintiffs allege the Fish & Wildlife Service also violated
the ESA by delisting the northern Rocky Mountain gray wolf even
though provisions in Wyoming’s 2007 wolf management plan that the
Service had earlier rejected and found to be inadequate to
protect wolves were still a part of the plan now approved. In
particular, the Service rejected Wyoming’s earlier 2003 wolf
management plan because, among other things, (1) the plan failed
to clearly commit to managing for at least 15 wolf packs in
-25
Case 9:08-cv-00056-DWM Document 104 Filed 07/18/2008 Page 26 of 40
Wyoming; and (2) the predatory status of wolves under the plan
did not “provide sufficient management controls to assure the
Service that the wolf population [would] remain above recovery
levels.” First Harbine Decl. Ex. 11. The argument here is that
Wyoming’s 2007 plan suffers from the same defects.
Plaintiffs maintain that just like the 2003 plan, the 2007
plan fails to clearly commit the State to managing for at least
15 breading pairs within the state. They claim Wyoming’s
commitment to maintaining only seven (7) breading pairs outside
the National Park Units is insufficient to sustain the wolf
population in Wyoming because it does not guarantee fifteen (15)
breeding pairs in the state if the National Park Units’
population drops below eight (8) breeding pairs. Plaintiffs
pointedly show that under the 2007 plan, wolves in ninety (90)
percent of the State of Wyoming remain classified as predators
and the remaining ten (10) percent of the geographical area of
the state is classified as trophy game area. That is a small,
malleable area.
The Fish & Wildlife Service deals with this contention by
asserting that the 2007 plan cures both deficiencies found in the
2003 plan. The Service maintains Wyoming has clearly committed
to maintaining 15 breeding pairs in the state regardless of the
number of breeding pairs in the National Parks Units. The
Service further contends the designated trophy game area in the
-26
Case 9:08-cv-00056-DWM Document 104 Filed 07/18/2008 Page 27 of 40
2007 plan is sufficient to sustain Wyoming’s share of the wolf
population. While the Service acknowledges Wyoming’s 2007 plan
still classifies the wolf as predatory in ninety (90) percent of
the state, it notes that even so the majority of this area is
unsuitable wolf habitat. In the Service’s view, the trophy game
area under the 2007 plan encompasses seventy (70) percent of the
suitable wolf habitat in Wyoming.
Wyoming argues Plaintiffs’ claims regarding the inadequacies
in the 2007 plan should fail because they are speculative.
Wyoming claims Plaintiffs, like Cassandra, are concerned about
issues that may only arise in the future. If this is the case,
Wyoming asserts, then such concerns are not relevant to this
analysis.
Plaintiffs are likely to succeed on this claim as well.
Wyoming’s 2003 plan classified wolves in the State as predatory
so long as there were seven (7) wolf packs outside the National
Park Units or fifteen (15) wolf packs in the entire state (the
“seven or fifteen criteria”). 71 Fed. Reg. 43,410, 43,428–43,430
(Aug. 1, 2006). If wolves failed to satisfy the seven or fifteen
criteria, they were reclassified as trophy game animals. Id.
The Fish & Wildlife Service rejected this plan because, under the
seven or fifteen criteria, the more protective trophy game animal
designation was not necessarily activated when the population of
wolves in the state dropped below 15 breeding pairs. Id. The
-27
Case 9:08-cv-00056-DWM Document 104 Filed 07/18/2008 Page 28 of 40
Service gave the example of a situation where there were 3 packs
inside the National Park Units and 10 packs outside the National
Park Units.5 Id. Although the seven or fifteen criteria would
be met in this example—thus allowing for predatory treatment of
wolves—there would be less than 15 packs in Wyoming. Id. The
Service found Wyoming’s reliance on the seven or fifteen criteria
unacceptable because it was unrealistic to expect the National
Park Units to consistently maintain 8 breeding pairs. Id. The
Service thus concluded, “Wyoming state law must clearly commit to
managing for at least 15 wolf packs in Wyoming.” First Harbine
Decl. Ex. 11.
The Service’s contention that the 2007 plan corrects this
deficiency by clearly committing the State of Wyoming to manage
for 15 breeding pairs is once again disingenuous. The Service
looks to the 2007 plan in support of its assertion. The 2007
plan states, “According to [Wyo. Stat. § 23-1-304] and
interpretation of said statute by the Wyoming Attorney Generals
Office, upon delisting, Wyoming will maintain a minimum of 15
breeding pairs within the State including [the National Park
Units]. Seven of the 15 breeding pairs will be maintained in
northwestern Wyoming but outside [the National Park Units].”
5The Service’s discussion of the 2003 plan spoke of packs becauseWyoming had not yet committed to managing for breeding pairs. In the
2007 plan, Wyoming made such a commitment and Plaintiffs do notchallenge this aspect of the plan.
-28
Case 9:08-cv-00056-DWM Document 104 Filed 07/18/2008 Page 29 of 40
Gustafson Decl. Ex. 21, at 10. Although this statement seems to
limply support the Service’s position, the next sentence of the
plan, and Wyo. Stat. § 23-1-304—which was enacted to implement
the plan under Wyoming state law—tell a different story. When
the entire statutory and regulatory scheme in Wyoming is
considered, the provisions demonstrate there is nothing clear
about Wyoming’s commitment to maintaining fifteen (15) breeding
pairs in its geographical area.
The 2007 Wyoming plan states “[s]ince the [Wyoming Fish &
Wildlife Commission] does not have the legal authority to
actively manage wolves within the National Parks, its management
emphasis will be applied to maintaining seven (7) breeding pairs
that inhabit primarily areas outside the Parks.” Gustafson Decl.
Ex. 21, at 10. Further, Wyo. Stat. § 23-1-304(a) allows the
Wyoming Fish & Wildlife Commission to set seasons and bag limits
annually in areas where the wolf is classified as trophy game
“only as necessary to reasonably ensure at least seven (7)
breeding pairs of gray wolves are located in [the] state and
primarily outside of [the National Park Units].” Subsection (j)
of the statute provides the State with the authority to take any
action necessary to protect big and trophy game populations in
the state from predation by wolves, if the number of breeding
pairs exceeds seven (7) outside the National Park Units. Wyo.
Stat. § 23-1-304(j); see also id. § 23-1-304(n). What these
-29
Case 9:08-cv-00056-DWM Document 104 Filed 07/18/2008 Page 30 of 40
state laws show is that Wyoming is not committed to maintaining
fifteen (15) breeding pairs of wolves within the state; rather,
Wyoming intends to rely on the National Park Units’ ability to
maintain eight (8) breeding pairs of wolves to satisfy Wyoming’s
obligation to preserve fifteen (15) breeding pairs as its share
of the required wolf population. It was precisely this reliance
that was previously rejected by the Service as unrealistic. 71
Fed. Reg. at 43,429. Because the Fish & Wildlife Service
rejected Wyoming’s 2003 plan because it failed to clearly commit
Wyoming to managing for fifteen (15) breeding pairs, the
Service’s acceptance of the 2007 plan despite the same deficiency
was probably arbitrary and capricious.
The Fish & Wildlife Service’s approval of Wyoming’s 2007
plan despite its classification of the wolf as predatory
throughout much of the state is also problematic and once again
represents an agency change of course unsupported by adequate
reasoning. In rejecting Wyoming’s 2003 plan, the Service
indicated the wolf should be designated as trophy game statewide.
Gustafson Decl. Ex. 11. The Service stated:
[t]he designation of wolves as ‘trophy game’ statewide
would allow Wyoming to devise a management strategy
that provides for self-sustaining populations above
recovery goals, regulated harvest and adequate
monitoring of that harvest. As is the case with other
trophy game in Wyoming, the state could establish
management areas, season dates, and quota limits to
control populations in a regulated manner. In
addition, Wyoming could address wolf depredation
concerns through regulations that exist for currently
-30
Case 9:08-cv-00056-DWM Document 104 Filed 07/18/2008 Page 31 of 40
classified trophy game animals.
Gustafson Decl. Ex. 11. Now, in approving Wyoming’s 2007 plan,
the Service has compromised its earlier thinking and accepted
less than statewide trophy game designation for the wolf. The
Service seeks to justify this additional change of course by
arguing the area designated as predatory in the 2007 plan is
mostly unsuitable wolf habitat and Wyoming could maintain its
share of the wolf population in the trophy game area alone. 73
Fed. Reg. at 10,549–10,550. This reasoning is an unexplained
surrender of the agency’s rational rejection of the 2003 plan.
The Fish & Wildlife Service presumably knew of the areas of
suitable wolf habitat in Wyoming and the carrying capacity of
those areas in 2003. In spite of this knowledge, the Service
rejected Wyoming’s 2003 plan in favor of statewide trophy game
designation. The Service has failed to provide any rationale for
accepting something less now. Left unexplained, the capitulation
is arbitrary and capricious.
The Service’s approval of the 2007 plan despite the
malleable nature of the trophy game area is even more
problematic. This aspect of the Wyoming plan presents a
metaphorical moving target. In its briefing, the Fish & Wildlife
Service cited to a map in the 2007 plan to assure the Court that
the trophy game area is fixed. At oral argument, the Service
clarified that the trophy game area is “fixed, but not
-31
Case 9:08-cv-00056-DWM Document 104 Filed 07/18/2008 Page 32 of 40
permanent.” Clever wording aside, it is clear that Wyoming law
permits the Wyoming Fish & Wildlife Commission to alter the
parameters of the trophy game area. Specifically, the Wyoming
Fish & Wildlife Commission may diminish the trophy game area if
it “determines the diminution does not impede the delisting of
gray wolves and will facilitate Wyoming’s management of wolves.”
Wyo. Stat. § 23-1-101(xii)(B)(I). The Service here too decides
without explanation.
The State of Wyoming takes the position that the Court
should not consider speculative future actions. The authority
the State cites for this proposition, however, is not persuasive
here. See Arizona Cattle Growers’ Ass’n v. U.S. Fish & Wildlife
Serv., 273 F.3d 1229, 1244 (9th Cir. 2001) (addressing
speculation regarding whether an endangered species actually
occupies a particular area in addressing a Section 7 ESA claim).
States have flexibility to manage unlisted species within their
borders so long as that management does not threaten the
continued viability of the species. Here, however, Wyoming
submitted a plan that classifies the wolf as a predatory animal
in approximately 90 percent of the state. The Service
acknowledged wolves in this area will not likely persist because
wolves cannot survive unregulated human-caused mortality. 73
Fed. Reg. at 10,549–10,550. The remaining 10 percent of Wyoming,
which provides some protection for the wolf, can be altered by
-32
Case 9:08-cv-00056-DWM Document 104 Filed 07/18/2008 Page 33 of 40
the Wyoming Fish & Wildlife Commission at any time. These facts,
when coupled with Wyoming’s failure to firmly commit to managing
to preserve at least 15 breeding pairs in the state, show the
continued existence of the wolf in Wyoming and outside of the
National Park Units is in serious jeopardy. The Service’s
approval of the 2007 plan despite these deficiencies at this
stage appears to be arbitrary and capricious.
2. State Depredation Control Laws
Plaintiffs next argue the Fish & Wildlife Service failed to
consider an important aspect of delisting wolves because the
Service did not assess state laws in Idaho, Montana, and Wyoming
that authorize the unregulated killing of wolves in defense of
property. Plaintiffs claim the unregulated killing exacerbates a
threat to the wolves’ viability.
The Fish & Wildlife Service responds to the argument by
observing that the states’ depredation control laws are similar
to laws that authorized the removal of problem wolves under
federal management. The Service also notes lethal control of
wolves in the states will be stopped if recovery is ever at risk
because Idaho, Montana, and Wyoming have each committed to
maintaining at least 150 wolves and at least 15 breeding pairs.
Before delisting, the experimental wolf populations in the
Greater Yellowstone and central Idaho core recovery areas were
managed under § 10(j) of the ESA. The § 10(j) regulations
-33
Case 9:08-cv-00056-DWM Document 104 Filed 07/18/2008 Page 34 of 40
allowed individuals to kill wolves that were “in the act of
attacking.” 50 C.F.R. § 17.84(n)(4)(iii)(A). “In the act of
attacking” was defined as “actual biting, wounding, grasping, or
killing of livestock or dogs, or chasing, molesting, or harassing
by wolves that would indicate to a reasonable person that such
[activities] are likely to occur at any moment.” 50 C.F.R. §
17.84(n)(3). The specificity of this regulation is not repeated
in the state depredation laws.
Idaho law permits the killing of wolves without a permit
when they are “molesting or attacking livestock or domestic
animals.” Idaho Code § 36-1107(c). “Molesting” is defined as
“the actions of a wolf that are annoying, disturbing or
persecuting, especially with hostile intent or injurious effect,
or chasing, driving, flushing, worrying, following after or on
the trail of, or stalking or lying in wait for, livestock or
domestic animals.” Id. Unlike the Idaho depredation control
law, the § 10(j) regulations required a wolf’s molesting or
harassing to indicate to a reasonable person that the wolf was
likely to attack. Idaho law only requires “annoying . . .
especially with hostile intent or injurious effect.” Although
these two standards differ, Idaho law is sufficiently similar to
the § 10(j) regulations to provide assurance that Idaho’s
depredation control law will not likely threaten the continued
existence of the wolf in Idaho. The killing of wolves pursuant
-34
Case 9:08-cv-00056-DWM Document 104 Filed 07/18/2008 Page 35 of 40
to Idaho’s depredation control law must be reported to government
officials within seventy-two hours. Id. The number of wolves
killed will then become part of the mortality limit for each wolf
zone in Idaho, such that any wolf killed under Idaho’s
depredation control law will reduce the take allowed by hunters.
Nadeau Decl. ¶ 20. Once the total mortality limit for a zone or
the state has been reached, all wolf hunting in Idaho will be
closed. Nadeau Decl. ¶ 20. Because Idaho has committed to
managing for at least 15 breeding pairs, its depredation control
law is not likely to threaten the continued existence of the wolf
in Idaho. Additionally, the Fish & Wildlife Service considered
Idaho’s depredation control law in its delisting decision and
thus did not fail to address an important aspect of the problem.
See 73 Fed. Reg. at 10,548.
Montana’s depredation control law is not likely to threaten
the continued existence of the wolf for the same reasons.
Montana law permits the killing of wolves who are attacking,
killing, or threatening to kill a person or livestock or who are
attacking or killing a domestic dog. Mont. Code Ann. § 87-3130(
1). The statute requires notice to Montana Fish & Game of
any take within seventy-two hours. Id. The § 10(j) regulations
only applied to experimental wolf populations. Consequently,
they did not govern wolves in the northwestern Montana core
recovery area prior to delisting. Nevertheless, the Service
-35
Case 9:08-cv-00056-DWM Document 104 Filed 07/18/2008 Page 36 of 40
adequately considered Montana’s depredation control law, see 73
Fed. Reg. at 10,548, and concluded it is not likely to threaten
the continued existence of the wolf because the law is similar to
the § 10(j) regulations and those regulations did not threaten
the continued existence of the experimental wolf populations in
central Idaho and the Greater Yellowstone core recovery areas.
Additionally, Montana has committed to managing for at least
fifteen (15) breeding wolf pairs in the state and has indicated
licensed public hunting of wolves will not occur unless this
minimum standard is satisfied. Sime Decl. ¶ 35.
Wyoming’s depredation control law is more problematic. It
permits the killing of wolves “doing damage to private property.”
Wyo. Stat. § 23-3-115(a). Unlike the § 10(j) regulations,
Wyoming law does not limit its reach to wolves that are attacking
or harassing persons, livestock, or domestic animals. Instead,
it reaches wolves that are, in someone’s subjective view,
damaging property. Because Wyoming’s depredation control law is
significantly more expansive than the § 10(j) regulations, it is
unclear whether a viable wolf population can be sustained under
the law. This uncertainty is particularly problematic in light
of Wyoming’s failure to clearly commit to managing for fifteen
(15) breeding wolf pairs within its borders. Moreover, although
the Service noted Wyoming law permits killing wolves in defense
of property in the trophy game area, it did not discuss whether
-36
Case 9:08-cv-00056-DWM Document 104 Filed 07/18/2008 Page 37 of 40
Wyoming’s law was similar to the § 10(j) regulations. Thus, it
appears the Service did not consider this aspect of the delisting
issue. For these reasons, Plaintiffs have raised serious
questions on their claim regarding Wyoming’s depredation control
law.
C. Possibility of Irreparable Injury
Plaintiffs claim a preliminary injunction is necessary
because delisting has and will continue to result in irreparable
injury to individual wolves, wolf packs, the entire wolf
population in the northern Rocky Mountains, and members of
Plaintiff organizations. They show at least 37 wolves have been
killed since delisting on March 28, 2008. Some of the killings
are justified, others are not. The contention is that the
killing of even a small number of wolves that have been
unlawfully removed from the endangered species list is sufficient
to demonstrate irreparable harm.
The Fish & Wildlife Service acknowledges some individual
wolves will be killed under state management that would not have
otherwise been killed absent delisting. The Service nevertheless
takes the position such loss does not constitute irreparable
harm. Part of its position is based on the notion that lethal
take of wolves in the Greater Yellowstone and central Idaho core
recovery areas was authorized under the § 10(j) regulations. 73
Fed. Reg. at 10,545. Despite wolves being killed under these
-37
Case 9:08-cv-00056-DWM Document 104 Filed 07/18/2008 Page 38 of 40
regulations, the Service contends the wolf population in the
northern Rocky Mountains continued to grow at a rate of twenty-
four (24) percent annually. Id. The Service concludes human-
caused mortality could increase post-delisting to remove an
additional 24 percent of the wolf population without decreasing
the total population of wolves because holding a wolf population
static requires a total take of 28 to 50 percent each year. Id.
The Intervenors generally argue Plaintiffs’ showing of
irreparable injury cannot be based on the killing of individual
wolves. Instead, they claim Plaintiffs must show irreparable
harm to the species as a whole. This cannot be done, as the
syllogism goes, because wolves are an incredibly fecund species.
They note the northern Rocky Mountain wolf population has
increased at a rate of 24 percent annually even while
experiencing 26 percent mortality. Id. The Intervenors conclude
that the killing of individual wolves is not likely to threaten
the species during the pendency of this case.
Plaintiffs cite Humane Society of the United States v.
Kempthorne, 481 F. Supp. 2d 53 (D.C. Cir. 2006), for the
proposition that harm to a small number of animals is sufficient
to demonstrate irreparable harm to an endangered or threatened
species. Citing several cases in support of their position, the