68 F. Supp. 3d 193
D.D.C.2014Background
- Plaintiffs challenged the Fish and Wildlife Service’s (FWS) September 2012 rule delisting the gray wolf in Wyoming and transferring management to the State. The case consolidated multiple environmental plaintiffs against FWS and related defendants.
- FWS’s NRM recovery goal: 30+ breeding pairs and ~300 wolves across three recovery areas; distributed as 10 breeding pairs/100 wolves minimum per State. Montana and Idaho were required to maintain a 50% buffer (15/150); Wyoming was treated differently in 2012.
- Wyoming amended statutes and issued an Addendum to its wolf plan: created a permanent northwestern “trophy game area,” seasonal expansions to protect dispersers, and stated an intent to maintain a buffer above 10/100 (but the buffer was not numerically specified or legally enforceable).
- FWS relied on Wyoming’s statutory minima plus the State’s nonbinding Addendum commitments (and Yellowstone/Wind River populations) to conclude delisting was appropriate; peer reviewers were split over adequacy of the nonbinding buffer.
- The District Court concluded FWS’s reliance on Wyoming’s unenforceable promises (the Addendum buffer) was arbitrary and capricious, vacated the 2012 rule, but upheld FWS’s genetic-connectivity and significant-portion-of-range (SPR) analyses as reasonable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of Wyoming regulatory mechanisms under ESA Factor D | Wyoming’s scheme is inadequate because it lacks an enforceable numeric buffer above the 10/100 minimum and contains permissive lethal-take rules | FWS may consider state laws, plans, and nonbinding commitments; ESA does not require every element to be legally enforceable | Court: FWS required Wyoming to maintain a buffer above 10/100 and could not reasonably rely on unenforceable, nonbinding state promises as the basis for delisting; vacated the rule on this ground |
| Reliance on nonbinding state commitments | Nonbinding statements (Addendum) cannot substitute for regulatory mechanisms; voluntary measures are speculative | Agency may consider voluntary measures and adaptive management as part of the record; Polar Bear precedent supports consideration of such materials | Court: Reliance here was improper because the buffer was critical to delisting and the State’s commitments were not enforceable; agency action arbitrary and capricious |
| Genetic connectivity (sufficiency of gene flow into Greater Yellowstone Area) | Recorded estimates (e.g., 0.42 effective migrants/gen) are too low; extrapolation unsupported by some authors | FWS reasonably extrapolated from genetic and dispersal data and peer-reviewed studies to conclude ≥1 effective migrant/generation | Court: FWS’s genetic analysis was reasonable; evidence supports sufficient genetic exchange and Court will not disturb that finding |
| Significant Portion of Range (SPR) — treatment of Wyoming "predator area" | Predator area is significant because it affects dispersal routes and genetic connectivity; FWS reversed its prior position without scientific change | Predator area has little suitable habitat or wolves; trophy area (including seasonal expansion) and other routes make predator area peripheral | Court: FWS’s SPR analysis reasonable; predator area is not a significant portion of the species’ range |
Key Cases Cited
- In re Polar Bear Endangered Species Act Listing and Section 4(d) Rule Litigation, 709 F.3d 1 (D.C. Cir. 2013) (deference to agency scientific judgments; discussion of adaptive management)
- Defenders of Wildlife v. Salazar, 729 F. Supp. 2d 1207 (D. Mont. 2010) (agency cannot delist part of a DPS that is endangered or threatened)
- Greater Yellowstone Coal. v. Servheen, 665 F.3d 1015 (9th Cir. 2011) (consideration of voluntary measures in multi-state conservation plan addressed but not dispositive)
- Biodiversity Legal Found. v. Babbitt, 943 F. Supp. 23 (D.D.C. 1996) (agency cannot base determinations on promised future actions; existing mechanisms required)
- Oregon Natural Res. Council v. Daley, 6 F. Supp. 2d 1139 (D. Or. 1998) (unenforceable voluntary measures should not be relied upon in listing decisions)
- Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (arbitrary and capricious standard governs review of agency rulemaking)