On August 25, 2011, the Ninth Circuit denied an emergency motion for an injunction pending appeal to re-instate Endangered Species Act protections for gray wolves in Montana, Idaho, Oregon, Washington, and Utah. For the order, go here. Environmental groups appealed the case to the Ninth Circuit on August 13, after a federal district court upheld legislation directing the U.S. Fish & Wildlife Service to reissue a 2009 rule that removed ESA restrictions on the gray wolf. Decision here. The same rule was determined by a district court to be illegal in 2010, here.
The environmental groups asserted, among other things, that the legislation violated separation-of-powers doctrine because Congress had ordered an outcome in ongoing litigation without amending the underlying law, thereby blocking judicial review. Brief here. The Service asserted that the environmental groups were not likely to succeed on the merits given controlling case law, and that no evidence had been produced showing that the viability of the gray wolf population would be irreparably harmed by the transfer of management authority over the wolves to the states. Opposition brief here.
The Court set an expedited briefing schedule for the merits of the appeal, and expects to hear the case in November 2011. In the meantime, Idaho opened its wolf-hunting season on August 30, 2011 and Montana is scheduled to open its season on September 30, 2011.
I previously discussed the wolf delisting rider to the budget compromise bill. I think it would be useful to summarize recent court opinions concerning the wolf, and consider the effects of the rider on those opinions.
The rider never mentions “wolf” or “delisting.” It simply requires the Fish & Wildlife Service (FWS) to reissue its April 2009 final rule (74 Fed. Reg. 15,123). That rule effectively delisted the “Rocky Mountain Population” of gray wolves from the endangered species listing. This delisting includes parts of Washington, Oregon and Utah, and all of Montana and Idaho. The population in Wyoming, however, was not delisted because Wyoming lacked “adequate regulatory mechanisms” to protect the wolf. After a District of Montana court order, FWS reversed its April 2009 final rule on October 26, 2010.
FWS also delisted the “Western Great Lakes Populations” of gray wolves in a separate rule (74 Fed. Reg. 15,070), also issued in April 2009. This second rule encompasses all of Minnesota, Wisconsin and Michigan, as well as parts of North Dakota, South Dakota, Illinois, Indiana and Ohio. Prior to this rule, FWS issued a similar delisting rule for the Western Great Lakes Populations of gray wolves in 2007 (72 Fed. Reg. 6,052), but that rule was struck by the District Court of D.C. in 2008.
In this litigation, environmental groups challenged the 2007 FWS rule that delisted the Western Great Lakes gray wolf populations. The court held that the statutory language is ambiguous. The court then refused to defer to the FWS interpretation: that FWS can designate and delist a distinct population segment within a broader listing. The court vacated and remanded the rule back to FWS. This opinion shares many parallels with the Defenders of Wildlife opinion, discussed below. Both opinions reject FWS’s interpretation as impermissible given the statutory language and legislative history of the ESA. Nevertheless, FWS issued a new delisting rule for the “Western Great Lakes” populations in April 2009, and it remains to be seen if that rule can overcome the hurdles posed by this opinion.
This opinion found that FWS violated the ESA by partially removing Endangered Species Act (ESA) protections for distinct population segments of the gray wolf. The court vacated the FWS’s Rocky Mountain delisting rule. The court determined that the legislative history of the ESA did not support the agency’s attempt to partially delist the wolf and therefore is not a permissible interpretation of the ESA. More importantly, the court held that the ESA unambiguously prohibits FWS from listing or delisting only part of a distinct population segment. (For you Chevron fans out there, that means the FWS rule failed both Chevron step 1 and 2.)
Because Congress did not amend the ESA with its wolf delisting rider, it is difficult to argue that the Defenders of Wildlife opinion is now invalid. And so Congress has, in effect, ordered FWS to reissue a final rule in violation of both the ESA and a direct court order. One could argue that Congress has implicitly delisted the wolf (and thus amended the ESA) with this rider (although I think that is a difficult argument to make). But the fact remains that it looks like Congress is ordering FWS to act in contempt of a direct court order.
Wyoming v. Dep’t of Interior, 2010 WL 4814950 (D. Wyo. Nov. 18, 2010)
This opinion goes the opposite direction of the District of Montana. The District of Wyoming declared that FWS acted arbitrarily and capriciously by not delisting the wolf in Wyoming. Weirdly, the opinion begins by quoting at length from A Sand County Almanac (Thinking Like a Mountain).
The crux of the problem for the court is that FWS wants Wyoming to designate the entire state as a managed trophy game area, even though most of the wolf habitat is in only part of the state (mainly northwestern Wyoming). FWS seeks to prevent excessive killing of the wolves, particularly under Wyoming’s defense of property law, which allows property owners to kill any wolf doing damage to private property. The court finds the FSA’s rejection of Wyoming’s proposed, more limited management area to be arbitrary and capricious.
The court remanded. It did not delist the wolf in Wyoming. This case is specifically protected by the wolf delisting rider, and in fact is the only case specifically mentioned in the rider language. But here the District of Wyoming remanded the final rule to the agency. FWS could choose not to delist the wolf and, in theory, still comply with this opinion.
Defenders of Wildlife v. Salazar, 2011 WL 1345670 (D. Mont. Apr. 9, 2011)
This case has gotten most of the recent press. This April 2011 opinion rejected a proposed settlement that would have delisted the wolves in Montana and Idaho. The court objected that it cannot approve a settlement that would, in effect, violate the ESA. The reasoning behind this case parallels the court’s earlier August 5, 2010 decision, and the rider will likely affect both decisions equally, if at all.
In short, the wolf delisting rider requires FWS to reissue a rule that was remanded by two courts: District of Wyoming and District of Montana. Republishing the rule without revision, as the rider seems to require, will be unresponsive to both court orders. And the rider protects at least one of those orders (the District of Wyoming). Perhaps FWS will determine that compliance with both the District of Wyoming and the Congressional rider requires it to revise the rule before re-publication. And we have yet to see a good argument for why Congress should be allowed to exclude this reissuance of the rule from all judicial review, or how reissuing this rule achieves the Congressional goal: delisting the wolf.
Eight members of Congress have introduced a bill called the State Sovereignty Wildlife Management Act. The sole purpose of HR 6485 is to render any listing of wolves as threatened or endangered under the Endangered Species Act legally irrelevant. While I have no reason to assume this bill will pass, the fact that officials elected to national office could propose such a thing underscores much of what’s wrong with, well, with everything.
Wolves are not a threat to people. In the history of the United States, there has never been a fatal wolf attack on a human. They do, however, sometimes eat livestock. Since their reintroduction into the Northern Rockies (emphasis on re- introduction because they used to live there until we exterminated them), ranchers have whined because they occasionally lose animals to wolves. Rather than treat this as a cost of doing business, ranchers argue that the wolves’ existence constitutes an unwelcome intrusion into the natural order of things. This despite the fact that the wolves used to inhabit the region in far greater numbers than the 1700 or so that currently exist there and that ranching (and the factory farming that it supports) has caused widespread damage to the region’s ecosystem.
Others complain about wolves preying on elk because it makes hunting (by humans) more challenging. Let’s think about that for a moment. First, there is no shortage of elk in the Northern Rockies. Second, wolves, as an alpha predator, help to control the herd in the way that is both natural and ecologically beneficial. Yet hunters complain that the wolves, who hunt without the benefit of anything except their bodies and who need the elk to survive, make it too hard (and consequently less fun) for recreational hunters to shoot the elk with high-powered rifles.
Then we have the recent court decision finding that Endangered Species Act requires that the wolf population be managed as an integrated whole rather than in a state-by state hodgepodge. Sensible though this might seem, it nonetheless has added to the outrage. Compounded by the entrenched bias against wolves that has existed since time immemorial, these complaints trigger unfortunate legislation such as HR 6485.
But the problem is not just with this bill and this animal. It has to do with rampant indifference to anthropogenic impacts on the natural world and a willingness to sacrifice animals, climate, ecosystems, oceans and most anything else for short-term human gain. The Endangered Species Act was and is one of the few outwardly directed laws ever enacted in this country. It explicitly subordinates human activity to the preservation of threatened and endangered species and their habitat. And that generosity of spirit has endangered the law itself almost from the moment of its passage.
We like to believe that society is evolving and becoming more sensitive to humanity’s role within the biosphere. We would like also to believe that lawmakers will respond to the increasingly urgent need to protect our threatened patrimony and strengthen rather than gut our environmental legal regime. But, sadly, neither belief seems accurate.