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Defenders of Wildlife v. Zinke

United States Court of Appeals, District of Columbia Circuit

March 3, 2017

Defenders of Wildlife, et al., Appellees
v.
Ryan Zinke, in his official capacity as Secretary of the United States Department of the Interior, et al., Appellants State of Wyoming, et al., Appellees

          Argued September 23, 2016

         Appeals from the United States District Court for the District of Columbia (No. 1:12-cv-01833)

          Joan M. Pepin, Attorney, U.S. Department of Justice, argued the cause for Federal Appellants. With her on the briefs were John C. Cruden, Assistant Attorney General, and David C. Shilton, Attorney.

          Jay Jerde, Special Assistant Attorney General, Office of the Attorney General for the State of Wyoming, argued the cause for appellant State of Wyoming. Jeremiah I. Williamson, Assistant Attorney General, entered an appearance.

          John A. Sheehan was on the brief for amicus curiae Wyoming Wolf Coalition-2013's in support of appellant State of Wyoming.

          Timothy J. Preso argued the cause for appellees/cross-appellants Defenders of Wildlife, et al. With him on the brief was Ralph E. Henry, Jr.

          Anna M. Seidman, Douglas S. Burdin, Jeremy S. Clare, Michael T. Jean, and John I. Kittel were on the briefs for the non-governmental defendant-intervenor-appellants/cross-appellees. Christopher A. Conte entered an appearance.

          Before: Rogers, Brown and Pillard, Circuit Judges.

          OPINION

          ROGERS, CIRCUIT JUDGE

         Rogers, Circuit Judge: The gray wolf in Wyoming has been a protected species since 1973 pursuant to the Endangered Species Act ("ESA") and its predecessor. In 2011, the Secretary of the Interior proposed to delist the wolf on the basis of the recovery of the Northern Rocky Mountain gray wolf population and the conservation management plan of the State of Wyoming. Environmental groups opposed the delisting, and thereafter Wyoming made statutory and regulatory changes and created an Addendum to its management plan. Upon consideration of these changes and other data, the Fish and Wildlife Service, acting on the Secretary's behalf, delisted the wolf in Wyoming as it had in the adjacent states of Montana and Idaho. Removal of the Gray Wolf in Wyoming From the Federal List of Endangered and Threatened Wildlife and Removal of the Wyoming Wolf Population's Status as an Experimental Population, 77 Fed. Reg. 55, 530 (Sept. 10, 2012) (the "Rule"). Environmental groups sued, and the district court vacated the Rule, agreeing that the Service had arbitrarily determined that Wyoming had put into place adequate "regulatory mechanisms." 16 U.S.C. § 1533(a)(1)(D). The court rejected the environmental groups' other challenges to the Rule.

         The Secretary and the State of Wyoming appeal, principally on the ground that the district court erred by failing to defer to the Service's reasonable interpretation of "regulatory mechanisms" to include the State's management plan for a wolf population buffer, which although not itself legally binding, is a practical entailment of the State's statutory population minima. Environmental groups cross-appeal the district court's conclusions that the Rule includes adequate provisions on genetic connectivity between wolf subpopulations and does not imperil the wolves in a "significant portion" of their range. For the following reasons, we reverse the judgment vacating the Rule and otherwise affirm.

         I.

         Section 4(a)(1) of the ESA provides that the Secretary is to determine whether a species is endangered or threatened because of one or more of the following factors:

(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; or (E) other natural or manmade factors affecting its continued existence.

16 U.S.C. § 1533(a)(1). This determination is to be made "solely on the basis of the best scientific and commercial data available . . . after taking into account those efforts, if any, being made by any State . . . to protect such species, whether by predator control, protection of habitat and food supply, or other conservation practices, within any area under its jurisdiction." Id. § 1533(b)(1)(A). A species - defined to include "any distinct population segment . . . which interbreeds when mature, " id. § 1532(16) - must be listed if its survival is threatened or endangered "throughout all or a significant portion of its range, " id. § 1532(6), (20). Section 4(f) requires the Secretary to develop and implement recovery plans for all listed species, id. § 1533(f)(1), incorporating "objective, measurable criteria which, when met, would result in a determination . . . that the species be removed from the list, " id. § 1533(f)(1)(B)(ii). Once the species has recovered sufficiently to be delisted, Section 4(g) requires the Secretary, in cooperation with the States, to monitor the species' status "for not less than five years." Id. § 1533(g)(1). Additionally, the Secretary is instructed to "make prompt use of the authority . . . to prevent a significant risk to the well being of any such recovered species." Id. § 1533(g)(2). By regulation, the Secretary has instructed that upon listing a species the Fish and Wildlife Service (hereinafter, "the Service") shall develop and implement recovery plans calling for "improvement in the status of listed species to the point at which listing is no longer appropriate under the criteria set out in section 4(a)(1) of the [ESA]." 50 C.F.R. § 402.02.

         The Northern Rocky Mountain gray wolf had by the 1930s been extirpated from Montana, Idaho, and Wyoming by western settlers who aggressively poisoned, trapped, and shot them. In the 1980s, gray wolves from Canada began to colonize northwestern Montana. In 1995 and 1996, 35 wolves from Alberta and British Columbia were reintroduced in Central Idaho, and 31 more were reintroduced in Yellowstone National Park, virtually all of which is in northwestern Wyoming. The Service set recovery goals for Montana, Idaho, and Wyoming of at least 10 breeding pairs and 100 wolves, for a total Northern Rocky Mountain population of at least 30 breeding pairs and 300 wolves, with adequate genetic connectivity between the three subpopulations (i.e., at least one migrant per generation that disperses from one subpopulation to another and successfully breeds). 76 Fed. Reg. 61, 782, 61, 791, 61, 814 (Oct. 5, 2011) ("NPRM").

         The Service designated the Northern Rocky Mountain gray wolf as a distinct population segment in 2008, and proposed in 2009 to delist the wolf in Montana and Idaho. Following various court challenges and intervention by Congress, that delisting occurred in 2011. Reissuance of Final Rule to Identify the Northern Rocky Mountain Population of Gray Wolf as a Distinct Population Segment and to Revise the List of Endangered and Threatened Wildlife, 76 Fed. Reg. 25, 590 (May 5, 2011); see also All. for the Wild Rockies v. Salazar, 672 F.3d 1170, 1171-72 (9th Cir. 2012). In proposing delisting in Wyoming in 2011, the Service recounted the characteristics and history of the gray wolf. NPRM, 76 Fed. Reg. at 61, 788-89. These characteristics include adaptability, resiliency, territoriality, an ability to reproduce quickly, and a tendency to live in family packs of two to twelve, although sometimes significantly larger. From 1995 to 2008, the Northern Rocky Mountain gray wolf population grew an average of 20% annually despite an average human-caused mortality rate of 23%. By 2002, the recovery goal had been met for three consecutive years. At the end of 2011, the Northern Rocky Mountain gray wolf population consisted of a minimum of 1, 774 wolves and 109 breeding pairs, thus far exceeding the Service's recovery goals. Rule, 77 Fed. Reg. at 55, 539. This population represented a 400-mile "southern range extension of a vast contiguous wolf population that number[ed] over 12, 000 wolves in western Canada and about 65, 000 wolves across all of Canada and Alaska." Id. at 55, 547.

         The Service's proposal to delist the remaining Northern Rocky Mountain gray wolves in Wyoming was based on federal-state cooperative efforts to develop an adequate state regulatory framework, taking into account court decisions that had found prior state plans deficient. First, because a significant part of the Wyoming gray wolf subpopulation lives beyond Wyoming's jurisdiction on tribal and federal lands - the Wind River Indian Reservation and Yellowstone National Park - the Service concluded that it would suffice for Wyoming to maintain a wolf population of "at least" 10 breeding pairs and 100 wolves in the parts of the State over which Wyoming has jurisdiction. NPRM, 76 Fed. Reg. at 61, 788. The wolves on tribal and federal lands, in turn, would provide an "additional buffer" above minimum recovery goals, id., thus roughly aligning Wyoming with the existing management requirements of 15/150 in Montana and Idaho, id. at 61, 791. To meet these obligations, Wyoming agreed to repeal a regulatory requirement that it aggressively manage the wolf population down to the bare minimum required by law. In addition, it stated in its management plan that it intended "to maintain an adequate buffer above the minimum recovery goals" to ensure that unexpected mortality did not jeopardize its compliance with the 10/100 minima. Id. at 61, 788. Next, Wyoming would manage wolves as game animals in a permanent trophy area that comprises 15.2% of the State, in which the vast majority of Wyoming wolves live. During the peak ...


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