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Defenders of Wildlife V. Salazar, 729 F. Supp. 1207 (D. Mont.)

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Defenders of Wildlife V. Salazar, 729 F. Supp. 1207 (D. Mont.) Page 1 DEFENDERS OF WILDLIFE, NATURAL RESOURCES DEFENSE COUNCIL, SIERRA CLUB, HUMANE SOCIETY OF THE UNITED STATES, CENTER FOR BIOLOGICAL DIVERSITY, JACKSON HOLE CONSERVATION ALLIANCE, FRIENDS OF THE CLEARWATER, AL- LIANCE FOR THE WILD ROCKIES, OREGON WILD, CASCADIA WILDLANDS, WESTERN WATERSHEDS PROJECT, WILDLANDS NETWORK, and HELLS CANYON PRESERVATION COUNCIL, Plain- tiffs, v. KEN SALAZAR, Secretary of the Interior, ROWAN GOULD, Act- ing U.S. Fish and Wildlife Service Director, and UNITED STATES FISH AND WILDLIFE SERVICE, Defendants, v. STATE OF IDAHO, SAFARI CLUB INTERNATIONAL, SPORTSMEN FOR FISH AND WILDLIFE, MONTANA FARM BUREAU FEDERATION, IDAHO FARM BUREAU FEDERATION, MOUNTAIN STATES LEGAL FOUNDATION, STATE OF MONTANA, MONTANA DEPARTMENT OF FISH, WILDLIFE AND PARKS, IDAHO GOVERNOR C.L. "BUTCH" OTTER, NATIONAL RIFLE ASSOCIATION OF AMERICA, Intervenor-Defendants. GREATER YELLOWSTONE COALITION, Plaintiff, v. KEN SALAZAR, Secretary of the Interior, ROWAN GOULD, Acting U.S. Fish and Wildlife Service Direc- tor, and UNITED STATES FISH AND WILDLIFE SERVICE, Defendants. CV 09-77-M-DWM, CV 09-82-M-DWM (consolidated) UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MON- TANA, MISSOULA DIVISION 2010 U.S. Dist. LEXIS 80851 August 5, 2010, Decided August 5, 2010, Filed COUNSEL: [*1] For Defenders of Wildlife, Nat- ford, CA; Douglas L. Honnold, LEAD ATTOR- ural Resources Defense Council, Sierra Club, Hu- NEY, EARTHJUSTICE LEGAL DEFENSE mane Society of The United States, Center for Bio- FUND, Bozeman, MT. logical Diversity, Jackson Hole Conservation Al- liance, Friends Of The Clearwater, Alliance for the For Ken Salazar, Secretary of the Interior, United Wild Rockies, Oregon Wild, Cascadia Wildlands, States Fish and Wildlife Service, Defendants: Mi- Western Watersheds Project, Wildlands Network, chael Richard Eitel, LEAD ATTORNEY, U.S. Hells Canyon Preservation Council, Plaintiffs: DEPARTMENT OF JUSTICE, Environment and Douglas L. Honnold, Jenny K. Harbine, Timothy J. Natural Resources Division, Denver, CO; Victoria Preso, LEAD ATTORNEYS, EARTHJUSTICE L. Francis, OFFICE OF THE U.S. ATTORNEY, LEGAL DEFENSE FUND, Bozeman, MT. Billings, MT. For Greater Yellowstone Coalition, Plaintiff: Brian For Rowan Gould, Acting U.S. Fish and Wildlife K. Gallik, LEAD ATTORNEY, GOETZ GALLIK Service Director, Defendant: Michael Richard Eitel, & BALDWIN, Bozeman, MT; Deborah A. Sivas, [*2] LEAD ATTORNEY, U.S. DEPARTMENT Robb W. Kapla, PRO HAC VICE, LEAD AT- OF JUSTICE, Environment and Natural Resources TORNEYS, ENVIRONMENTAL LAW CLINIC, Division, Denver, CO. Mills Legal Clinic at Stanford Law School, Stan- Page 2 2010 U.S. Dist. LEXIS 80851, * For State of Idaho, Intervenor Defendant: Clive J. ATTORNEY, GOUGH SHANAHAN JOHNSON Strong, LEAD ATTORNEY, OFFICE OF THE & WATERMAN, Helena, MT. ATTORNEY GENERAL, Boise, ID; James David Johnson, LEAD ATTORNEY, WILLIAMS LAW For Rocky Mountain Elk Foundation, Amicus: FIRM, Missoula, MT; Lawrence G. Wasden, LEAD Grant D. Parker, LEAD ATTORNEY, ROCKY ATTORNEY, IDAHO STATE ATTORNEY MOUNTAIN ELK FOUNDATION, Missoula, MT; GENERAL, Boise, ID; Steven W. Strack, LEAD John I. Kittel, LEAD ATTORNEY, Mazur and ATTORNEY, State of Idaho, Boise, ID. Kittel, PLLC, Farmington Hills, MI; Lon J. Dale, MILODRAGOVICH DALE STEINBRENNER & For Safari Club International, Intervenor Defendant: BINNEY, Missoula, MT. Anna M. Seidman, LEAD ATTORNEY, PRO HAC VICE, SAFARI CLUB INTERNATIONAL, JUDGES: Donald W. Molloy, District Judge. Washington, DC; Robert Thomas Cameron, LEAD ATTORNEY, GOUGH SHANAHAN JOHNSON OPINION BY: Donald W. Molloy & WATERMAN, Helena, MT. OPINION For Sportsmen for Fish and Wildlife, Intervenor Defendant: Paul A. Turcke, LEAD ATTORNEY, OPINION PRO HAC VICE, MOORE SMITH BUXTON & TURCKE, Boise, ID; Robert T. Bell, LEAD AT- I. Introduction TORNEY, REEP, BELL & LAIRD, P.C., Missou- When Congress enacted the Endangered Spe- la, MT. cies Act (the "ESA") what it envisioned was an or- derly process beginning with a determination of For Montana Farm Bureau Federation, Mountain when a species is at risk of extinction and ending States Legal Foundation, Idaho Farm Bureau Fed- when that risk is reduced to an acceptable level. eration, Intervenor Defendants: Ronald W. Opsahl, [*4] The Act was not intended to sow the dragon's LEAD ATTORNEY, MOUNTAIN STATES LE- teeth of strife or to plant the seeds of future con- GAL FOUNDATION, Lakewood, CO. flicts that have given rise to this case. The fight about wolves, steeped in stentorian agitprop, ig- For State of Montana, Montana Department of Fish, nores the two different mandates of the act: the risk Wildlife and Parks, Intervenor Defendants: Martha assessments, whether listing or delisting, are de- M. Williams, LEAD ATTORNEY, MONTANA signed to prevent extinction of a species and se- FISH [*3] WILDLIFE AND PARKS, Helena, condly they are intended to promote recovery of MT; Robert N. Lane, LEAD ATTORNEY, FISH, that species. Even though the focus is different, WILDLIFE & PARKS - LEGAL UNIT, Helena, both contribute to the principal goal of the Act, MT; Stephen C. Bullock, LEAD ATTORNEY, conserving a listed species and its habitat. It does so OFFICE OF THE MONTANA ATTORNEY by using scientific evidence and efforts to stabilize GENERAL, Helena, MT. the species but also by ameliorating threats the spe- cies faces to the point that the species is no longer For Idaho Governor Butch Otter, Intervenor De- unacceptably at risk of extinction. Dale D. Goble, fendant: David F. Hensley, LEAD ATTORNEY, Recovery, in ENDANGERED SPECIES ACT: PRO HAC VICE, Office of the Governor, Boise, LAW, POLICY, AND PERSPECTIVES 71, 71 ID; James David Johnson, LEAD ATTORNEY, (Donald C. Baur & Wm. Robert Irvin eds., 2010). WILLIAMS LAW FIRM, Missoula, MT; Thomas "[I]t is clear that Congress intended that conserva- C. Perry, LEAD ATTORNEY, PRO HAC VICE, tion and survival be two different (though compli- Species Conservation, Boise, ID. mentary) goals of the ESA." Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv. 378 F.3d 1059, For National Rifle Association of America, Inter- 1070 (9th Cir. 2004). venor Defendant: Robert Thomas Cameron, LEAD Page 3 2010 U.S. Dist. LEXIS 80851, * The Talmudic disagreement in this case is to the arguments submitted by the parties, [*7] the some degree a product of the fact that the Congress statutes and relevant case law, the Court finds: [*5] does not explicitly define "recovery" in the Act. Consequently there are different views about o The Endangered Species Act how that status is to be measured or achieved. Con- does not allow the U.S. Fish & Wild- gress did, however, define "conservation" as an af- life Service to list only part of a "spe- firmative obligation to "use . all methods and cies" as endangered, or to protect a procedures which are necessary to bring any [listed] listed distinct population segment on- species to the point at which the measures provided ly in part as the Final Rule here does; pursuant to this Act are no longer necessary." 16 and U.S.C. § 1532(3). While the statute is bare, the im- o the legislative history of the plementing regulations define "recovered" to mean Endangered Species Act does not "no longer in need of the Act's protection." It is the support the Service's new interpreta- Act's definitions of "endangered" and "threatened" tion of the phrase "significant portion that provide the applicable standards for determin- of its range." To the contrary it sup- ing whether a species is recovered. Goble, Recovery ports the historical view that the Ser- at 72. Despite this reality, it is not necessarily the vice has always held, the Endangered case that threatened or endangered status can be Species Act does not allow a distinct determined solely on the basis of scientific evidence population segment to be subdivided. alone. Beyond the question of risk is the issue of the acceptability of risk. Id. at 73. The decision that a risk is acceptable regarding a specific species is, in turn, an ethical and policy judgment. That means, in Accordingly, the rule delisting the gray wolf many respects, the complications are political. Even must be set aside because, though it may be a so, such judgments must be made within the context pragmatic solution to a difficult biological issue, it of the law, [*6] and the mandate of Congress is not a legal one. Because the Rule does not comp- cannot be altered or diminished to satisfy political ly with the ESA, it is unnecessary to resolve all of or other purposes that are contrary to the plain the issues raised by the parties. meaning of the ESA. II. Case Background When a species is delisted it creates additional legal concerns: will "removal of the ESA's 'existing The Defenders of Wildlife, et al. ("Defenders of regulatory mechanisms' again place the species at Wildlife") and the Greater Yellowstone Coalition risk by removing its legal protection?" Id. at 74. ("Greater Yellowstone") challenge the U.S. Fish & The delisting decision, which must consider the Wildlife Service's (the "Service's") decision to de- same five factors as the listing decision, focuses on signate and partially remove protections for the two separate issues. First, there is the question of northern Rocky Mountain gray wolf distinct popu- whether the species has recovered biologically. The lation [*8] segment ("DPS") under the ESA, 16 resolution of this question depends upon the popu- U.S.C. § 1536. They seek judicial review under the lation size and distribution and whether its numbers Administrative Procedure Act, 5 U.S.C. §§ 701-706 have increased sufficiently
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