Attorney General of Montana
215 North Sanders
PO Box 201401
Helena, MT 59620-1401
ph: (406) 444-2026
fax: (406) 444-3549
Robert N. Lane
Chief Legal Counsel
Agency Legal Counsel
Special Assistant Attorneys General
Montana Department of Fish, Wildlife and Parks
1420 East Sixth Avenue
PO Box 200701
Helena, MT 59620-0701
ph: (406) 444-4045; 444-2551
fax: (406) 444-7456
Attorneys for Defendant-Intervenor State of Montana
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA
DEFENDERS OF WILDLIFE, et al., )
) Case No. CV-09-77-M-DWM
Plaintiffs, ) CV-09-82-M-DWM
KEN SALAZAR, et al. ) DEFENDANT-INTERVENOR
) STATE OF MONTANA AND
) MONTANA DEPARTMENT OF
GREATER YELLOWSTONE COALITION, ) FISH, WILDLIFE AND PARKS'
) CONSOLIDATED BRIEF IN
Plaintiffs, ) SUPPORT OF CROSS-
) MOTION FOR SUMMARY
v. ) JUDGMENT AND OPPOSITION
) TO PLAINTIFFS' MOTION FOR
KEN SALAZAR, et al., ) SUMMARY JUDGMENT
TABLE OF CONTENTS
TABLE OF AUTHORITIES ii
TABLE OF ABBREVIATIONS vi
I. MONTANA'S MANAGEMENT OF WOLVES IS PROVEN AND MEETS
THE TEST OF ADEQUATE EXISTING REGULATORY MECHANISMS 3
A. Analysis of how Montana's existing regulatory mechanisms protect a
recovered wolf population. 3
B. State regulations are enforceable in contrast to guidelines, monitoring or
C. Montana's existing framework of laws are not future actions, speculative,
or unproven 14
II. LEAVING WOLVES LISTED IN WYOMING
COMPLIES WITH THE ESA 17
III. THE RECOVERY REQUIREMENT OF GENETIC EXCHANGE AMONG
THE THREE CORE POPULATIONS OF THE NORTHERN ROCKY
MOUNTAIN WOLVES HAS BEEN MET AND WILL BE MET INTO THE
CERTIFICATE OF COMPLIANCE 29
CERTIFICATE OF SERVICE 29
TABLE OF AUTHORITIES
Alsea Valley Alliance v. Evans,
161 F.Supp. 2d 1154, 1162 20
Biodiversity Legal Foundation v. Babbitt,
943 F.Supp. 23, 25-26 (D.D.C. 1996) 16
Defenders of Wildlife v. Hall,
565 F.Supp. 2d 1160, 1170-1172 (D. Mont. 2008) 24
Defenders of Wildlife v. Norton,
258 F.2d 1136, 1144 19, 22
Defenders of Wildlife v. Secretary of the United States Department of Interior,
354 F.Supp. 2d 1156, 1171 (D. Ore. 2005) 21
Ecological Center, Inc. v. United States Forest Service,
192 F.3d 922, 924-6, n. 6 (9th Cir. 2005) 14
Federation of Fly Fishers v. Daley,
131 F.Supp. 2d, 1158, 1169 (N.D. Cal. 2000) 13, 15
Friends of the Wild Swan, Inc. v. United States Fish and Wildlife Service,
945 F.Supp. 1388-9 (D. Or. 1996) 15
Greater Yellowstone Coalition v. Servheeen,
2009 WL 3775085 (D. Mont. 2008) 4, 13, 14, 27
Miller v. United States,
163 F.3d 591, 594, n.1 (9th Cir. 1998) 14
Montana Trout Unlimited v. Montana Dept. of Natural Resources and Conservation,
2006 MT 72, 133 P.3d 224, 232 (MT 2006) 6
Natural Resources Defense Council v. United States Department of Interior,
113 F.3d 1121, 1127, n.1 (9th Cir. 1997) 18
National Association of Home Builders v. Norton,
340 F.3d 835, 842 21
National Wildlife Federation v. Norton,
386 F.Supp. 553, 564 (D. Vt. 2005) 21
Oregon Natural Resources Council v. Daley,
6 F.Supp. 2d 1139, 1154 (D. Or. 1998) 14, 15
Save Our Springs, et al v. Babbitt,
27 F.Supp. 2d 739 (W.D. Tex. 1997) 16
Southwest Center for Biological Diversity v. Babbitt,
939 F.Supp. 49, 51-52 (D.D.S. 1996) 16
Trout Unlimited v. Lohn,
559 F.3d 946, 961-2 (9th Cir. 2009) 21
15 U.S.C. §1533(b)(1)(A) 18
16 U.S.C. §1531(b) 5, 17
16 U.S.C. §1532(3) 5, 27
16 U.S.C. §1532(16) 20
16 U.S.C. §1533(a)(1)(D) 1, 14, 17, 18
16 U.S.C. §1533(b)(1)(A) 3
16 U.S.C. §1533(d) 21
16 U.S.C. §1535(a), (b), (c) (1) 3, 18
Uniform Declaratory Judgments Act - Mont. Code Ann. §27-8-101, et seq. 6
Mont. Code Ann. §27-26-102 10
Mont. Code Ann. §75-1-201, et seq. 11
Mont. Code Ann. §87-1-201 6
Mont. Code Ann. §87-1-201(9) 4, 5, 8
Mont. Code Ann. §87-1-201(9)(a)(i) 6
Mont. Code Ann. §87-1-201(9)(a)(ii) 6
Mont. Code Ann. §87-1-241 5
Mont. Code Ann. §87-1-272 5
Mont. Code Ann. §87-1-301 6
Mont. Code Ann. §87-3-130 10
Mont. Code Ann. §87-5-101 et seq. 4, 7
Mont. Code Ann. §87-5-102(5) 7, 8
Mont. Code Ann. §87-5-103 7
Mont. Code Ann. §87-5-103(1) 7
Mont. Code Ann. §87-5-105 7, 8
Mont. Code Ann. §87-5-106 8
Mont. Code Ann. §87-5-131 7
Mont. Code Ann. §87-5-131(1) 8
73 Fed. Reg. 4720 (commonly referred to as 10(j)) 9, 10
74 Fed. Reg. 15128 25
74 Fed. Reg. 15131 28
74 Fed. Reg. 15133 25
74 Fed. Reg. 15133-35 28
74 Fed. Reg. 15135 2, 27
74 Fed. Reg. 15136 2
74 Fed. Reg. 15136 and 15160 2
74 Fed. Reg. 15137 27
74 Fed. Reg. 15140 2, 27
74 Fed. Reg. 15161 24
74 Fed. Reg. 15165-6 2
74 Fed. Reg. 15175-76 2
74 Fed. Reg. 15176 25
Administrative Rules of Montana
Mont. Admin. R. 12.2.501 7, 8
Mont. Admin. R. 12.9.1301 et seq. 4, 8
Mont. Admin. R. 12.9.1301 9, 11
Mont. Admin. R. 12.9.1301(1) 9, 10
Mont. Admin. R. 12.9.1302 9
Mont. Admin. R. 12.9.1302(1) 9
Mont. Admin. R. 12.9.1302(13) 10
Mont. Admin. R. 12.9.1303 9
Mont. Admin. R. 12.9.1303(2) 10
Mont. Admin. R. 12.9.1303-1305 9
Mont. Admin. R. 12.9.1304(2) 9
Mont. Admin. R. 12.9.1305 9
Mont. Admin. R. 12.9.1305(11) 10
H.R. Rep. No. 93-412 (1973) 18
S. Rep. No. 93-307 (1973) 19
S. Rep. No. 96-151 (1979) 19
119 Cong. Rec. 25, 662, 69 (July 24, 1973) 19
Mont Const. art. II §3 3, 5
Mont. Const. art. IX 5
TABLE OF ABBREVIATIONS
AR Administrative Record
Commission Montana Fish, Wildlife and Parks Commission
Department Montana Department of Fish, Wildlife and Parks
DPS Distinct Population Segment
ESA Endangered Species Act
ESU Evolutionary Significant Unit
FWS United States Fish and Wildlife Service
GYA Greater Yellowstone Area
Plaintiff GYC Plaintiff Greater Yellowstone Coalition
MEPA Montana Environmental Policy Act
Montana Department of Fish, Wildlife and Parks
and the State of Montana
Montana's ESA Montana Nongame and Endangered Species Act,
Mont. Code Ann. §87-1-501, et. seq.
Montana's Plan The Montana Gray Wolf Conservation
and Management Plan
MOU Memorandum of Understanding
NMFS National Marine Fisheries Service
NRM Northern Rocky Mountain
Plaintiffs Defenders Plaintiffs and GYC Plaintiff
SOF Statement of Facts
The NRM population of gray wolves is biologically recovered. The delisting of this population in Montana is a well-deserved victory for the ESA. The delisting accomplished the two fundamental goals of the ESA, to recover a species and transfer the care of the wolf from federal oversight to state management.
Montana's Constitution, statutes, rules, and Montana's Plan (AR2009-031264 through 031702), are existing regulatory mechanisms. In fact, Montana has been managing wolves in Montana under the ESA for 5 years pursuant to a cooperative agreement with the FWS. AR2009-031708 through 031716. Montana is committed to its present management by existing rules and statutes that mirror, for all practical purposes, Montana's prior management under the ESA with one exception. Part of Montana's management will include hunting, an effective management tool for other species. Montana has just completed a conservative wolf hunt that demonstrated Montana's management capabilities and underscores the commitment to maintaining its wolf population.
The FWS's decision to continue to protect the wolves in Wyoming under the ESA was drawn along political not biological grounds. Wyoming's management could not meet the test of adequate "existing regulatory mechanisms" as required by the ESA. 16 U.S.C. §1533(a)(1)(D). The legislative history of the ESA and the nature of the existing regulatory mechanisms test as a judgment of a state's statutes, rules, and plans justify leaving wolves listed in Wyoming. A state's boundaries define the reach of that state's jurisdiction to manage a species.
The NRM wolf population, including the wolves in Montana, has exceeded or met every recovery goal. The wolf census in December 2008 recorded a minimum of 1639 wolves in the NRM population with 491 wolves in Montana. 74 Fed. Reg. 15135. Montana's management and conservative hunt demonstrates that the number of wolves in Montana will remain around the present population.
Genetic exchange has been established and documented among all three NRM core recovery populations and with the much larger population in Canada. 74 Fed. Reg. 15136 and 15160. The large wolf population in Canada is connected to the central Idaho wolves and northwestern Montana wolves that are in turn connected to each other and both are genetically connected to the Greater Yellowstone Area subpopulation. 74 Fed. Reg. 15175-76.
Wolves are natural colonizers. 74 Fed. Reg. 15136. Where there is suitable habitat, the NRM wolves will find it. 74 Fed. Reg. 15140. When part of the prey-base includes livestock, a government hand is necessary for control. 74 Fed. Reg. 15165-6.
The FWS's decision to turn management of Montana's wolves over to Montana was made at the right time and for the right reasons. The ESA recognizes and promotes the goals and advantages of state management. 16 U.S.C. §1533(b)(1)(A); 16 U.S.C. §1535(a), (b), (c)(1). This includes local management attuned to local conditions, which most effectively builds public support as wolves are managed as an integral and natural part of Montana's rich wildlife populations.
I. MONTANA'S MANAGEMENT OF WOLVES IS PROVEN AND MEETS THE TEST OF ADEQUATE EXISTING REGULATORY MECHANISMS.
A. Analysis of how Montana's existing regulatory mechanisms protect a recovered wolf population.
The Plaintiffs argue that Montana does not have mechanisms or standards to ensure that the wolf population stays above the federal recovery standards citing what they deem to be aspirational goals of the Montana's Plan and the genetics MOU Montana entered with Idaho and the FWS. (AR2009-031264 through 031702 and AR2009-037222 through 037225). But Plaintiffs ignore existing Montana laws that buttress its wolf management plan and the genetics MOU. Indeed, through this cascade of laws, even Montana's Plan and the genetics MOU are enforceable.
Montana's framework of laws have been guiding wolf management decisions for years. Each law builds on the other, starting with Montana's Constitution that protects each Montanan's right to a clean and healthful environment, Mont. Const. art. II, § 3; to statutes requiring that the state manage for a recovered wolf population and in a manner that prevents the need for future listing, Mont. Code Ann. §87-1-201(9); to a state endangered species act that prescribes what management actions may take place for wolves as wildlife in need of management, Mont. Code Ann. §87-5-101 et seq.; to administrative rules that, predicated on wolf population numbers, dictate what lethal action may take place and when, Mont. Admin R. 12.9.1301 et seq.; to Montana's Plan that sets out an adaptive management regulatory scheme that tiers management actions to population numbers, AR 2009-031408. Management of the gray wolf under Montana law practically mirrors management that took place while the wolf was listed, with the exception of a regulated hunting season. Regarding the hunting season, Montana demonstrated how it applies its laws to require that management decisions protect a recovered wolf population. AR2008-026410; AR2009-031248; Mont.'s Response to Plaintiffs' Motion for Preliminary Injunction, Exhibit 1 (Document 80-4).
As this Court has noted, in the context of a petition to remove a species from the threatened or endangered list, the question is whether the existing regulatory mechanisms, without the protections of the ESA, are adequate to maintain a population at a recovered level, sufficient to prevent the need for future listing. Greater Yellowstone Coalition v. Servheen, 2009 WL 3775085, at *5-*9 (D. Mont. 2008).
The central purpose of the ESA is to "provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, [and] to provide a program for the conservation of such endangered species and threatened species." 16 U.S.C. §1531(b). The ESA defines conservation as:
the use of all methods and procedures that are necessary to bring any endangered or threatened species to the point at which the measures provided pursuant to [the ESA] are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation.
16 U.S.C. §1532(3).
Montana's framework of laws that guide wolf conservation and management do just what the ESA intends; they provide programs for conservation of wolves through scientific resource management such as research, monitoring, law enforcement, work with landowners, education, habitat acquisition, and regulated taking. Montana's framework of laws that protect a recovered wolf population begin with Montana's Constitution that charges the state with the duty to maintain and improve a clean and healthful environment and establishes the inalienable right to a clean and healthful environment. Mont. Const. art. II, §3 and art. IX. Montana's legislature and executive branch have recognized that the right to a clean and healthful environment requires conservation of both wildlife habitat and the wildlife itself. See, e.g. Mont. Code Ann. §87-1-201(9); see also Mont. Code Ann. §§87-1-241and 87-1-272.
Building on each Montanan's right to a clean and healthful environment, Mont. Code Ann. §87-1-201(9)(a)(i), sets out the clear legal duty of the Department to "manage wildlife, fish, game, and nongame animals in a manner that prevents the need for listing under" the state or federal ESAs. Mont. Code Ann. §87-1-201(9)(a)(ii) requires the state to manage species in a manner that assists in the maintenance or recovery of species. These are clear legal duties for which a party could seek a writ of mandate or a declaratory injunction to enforce. See Uniform Declaratory Judgments Act, Mont. Code Ann. §27-8-101, et seq. and Montana Trout Unlimited v. Montana Dept. of Natural Resources and Conservation, 2006 MT 72, 133 P.3d 224, 232 (MT 2006)(holding a state agency erred in its interpretation of its own statute).
It is with these clear legal duties in mind, that the Department and Commission oversee land acquisition and conservation for protection of the NRM wolf, adopt hunting regulations, and set policies for all of Montana's wildlife, lands, and waters. See Mont. Code Ann. §§87-1-201 and 87-1-301. For example, under Montana's ESA (modeled after the federal ESA and enacted the same year) the state has established programs for the acquisition of habitat considered necessary for management of endangered species and species in need of management, which to date have protected almost 1,000,000 acres in fee title, conservation easement, or leases for wildlife habitat. AR2009-034404 (Declaration of M. Jeff Hagener). Under the purview of Montana's ESA, the NRM wolf is classified as nongame wildlife in need of management. See Mont. Admin. R. 12.2.501 and Mont. Code Ann. §87-5-105. Mirroring the federal ESA's definition of "conservation" Montana's ESA defines management as:
the collection and application of biological information for the purposes of conserving populations of wildlife consistent with other uses of land and habitat. The term includes the entire range of activities that constitute a modern scientific resource program, including but not limited to research, census, law enforcement, habitat improvement, control, and education. The term also includes the periodic protection of species or populations as well as regulated taking.
Mont. Code Ann. §87-5-102(5)
Montana's ESA provides "adequate remedies for the protection of the environmental life support system from degradation and provide adequate remedies to prevent unreasonable depletion and degradation of natural resources." Mont. Code Ann. §87-5-103(1). Like the ESA, Montana's ESA sets out a tiered approach to wildlife conservation, classifying species as 1) endangered, 2) in need of management, and 3) managed as other wildlife. Mont. Code Ann. §87-5-103, see also Mont. Code Ann. §87-5-101, et seq.
Mont. Code Ann. §87-5-131 sets out a process for delisting of the gray wolf from Montana's ESA and management following delisting from the federal ESA. Once the FWS removed the gray wolf from its list of threatened or endangered species, Montana removed the gray wolf from the state list of endangered species and placed it on the list of nongame wildlife in need of management. See Mont. Code Ann. §87-5-131(1), Mont. Admin. R. 12.2.501 and 12.9.1301 et seq. As wildlife in need of management, the definition of "management" under Montana's ESA applies to the NRM wolf within the state. It prescribes the same methods and procedures that the ESA's definition of "conservation" includes. Mont. Code Ann. §87-5-102(5).
Thus statute prescribes what management actions may take place for wolves as wildlife in need of management. Mont. Code Ann. §87-5-106 prohibits any person from taking, possessing, transporting, exporting, or selling wildlife deemed in need of management, except as provided in regulations. Mont. Code Ann. §87-5-105 mandates that Montana issue management regulations for a species of wildlife that it deems in need of management to establish limitations on the take, possession, and transportation of that species. Montana's ESA combined with Mont. Code Ann. §87-1-201(9) charge the Department and Commission with a clear legal duty to keep the gray wolf population recovered.
Montana promulgated administrative rules that require it to preserve the gray wolf as resident wildlife in need of management and to regulate take of wolves. See Mont. Admin. R. 12.2.501 and 12.9.1301, et seq. For example, the rules direct Montana to "implement management and conservation strategies to make sure that wolves continue to thrive and are integrated as a valuable part of Montana's wildlife heritage. The department will manage wolves to assure that the recovery criteria are met or exceeded." Mont. Admin. R. 12.9.1301(1). The rules tier what lethal control may take place to the wolf population at the time. Mont. Admin. R. 12.9.1301, 12.9.1302(1), 12.9.1303, and 12.9.1305. The rules also define adaptive management to establish resource objectives of a recovered population, monitor progress toward maintaining that objective through wolf numbers, distribution, dispersal, genetic diversity, and adjust management decisions to meet those resource objectives of a recovered population. Mont. Admin. R. 12.9.1302.
The administrative rules mirror the 10(j) regulations that were in place in southwestern Montana prior to delisting. They set out all allowable lethal and nonlethal control of wolves and ensure that all control actions fall within adaptive management framework requirement that Montana manage for 15 breeding pair and if the population falls below this number, human caused mortality be limited accordingly. 73 Fed. Reg. 4720 and Mont. Admin. R. 12.9.1303-12.9.1305. The administrative rules also include nonlethal management activities and "work[ing] with others to better understand the effectiveness of nonlethal activities to prevent or decrease the likelihood of livestock conflicts." Mont. Admin. R. 12.9.1304(2). They clarify that Montana has management authority over the gray wolf, other governmental entities such as counties or the Montana Department of Livestock do not. Mont. Admin. R. 12.9.1303(2) and 12.9.1301(1). These administrative rules set out the kind of numeric population standards that if not adhered to give rise to a writ of mandate or declaratory judgment. See Mont. Code Ann. §27-26-102.
Mont. Code Ann. §87-3-130 allows a private citizen in defense of property to take wildlife that is attacking, killing, or threatening to kill a person or livestock. This defense of property statute allows for the same defense of property as the 10(j) regulations that applied to southwest Montana but did not apply to northwestern Montana. The same defense of property standard as provided for in the 10(j) regulations now applies throughout the state. The definition of threatening to kill includes chasing, testing, molesting, and harassing because this language describes the behavior wolves exhibit as they initiate hunting with the intent to kill their prey. Mont. Admin. R. 12.9.1302(13) and AR2008-026415. Montana administrative rule and statute still regulate this defense of property and require a witness to the threatening or killing, physical evidence, and report the incident. Mont. Admin. R. 12.9.1305(11). The number of wolves killed in defense of livestock has ranged from 4 to 6 since 2005. (AR2009-024995). Were the numbers of wolves taken under this statute to rise, under its adaptive management requirement, Montana would limit other regulated forms of lethal control.
Montana's Plan is enforceable as a document that dictates what management decisions may take place when. The Plaintiffs mistakenly claim that because Montana adopted its Plan through a MEPA process, it is not enforceable. Mont. Code Ann. §75-1-201, et seq. MEPA dictates the process by which Montana takes state actions such as adopting a species management plan. The final state action, the adopted Plan, is not procedural but is instead a binding document that guides Department management decisions and whether or not and under what circumstances the Commission may adopt a hunting season. Mont. Admin. R. 12.9.1301, AR2009-031264 through 031702.
Montana's Plan and administrative rules focus on breeding pairs not packs or number of wolves because the Department believed the federal recovery definition would provide a measure of security and margin for error. AR2008-026406. Research suggests that number of breeding pairs is a more biologically relevant metric to document achievement of recovery goals than the number of packs or population size. AR2008-026635 (Mitchell et al. p. 890). Ninety-five percent of packs that qualify as breeding pair have 10 wolves or more. Added to the number of wolves needed to form a breeding pair are the wolves that are in packs that do not qualify as a breeding pair. AR2008-026634-35 (Mitchell et al, 2008, p. 889-890). To date, in Montana there are more than 10 wolves per every breeding pair. AR2009-026409.
Under administrative rule and Montana's Plan, licensed public hunting can't occur unless there are at least 15 breeding pairs statewide. If the number of breeding pairs falls below 15, Montana will terminate hunting opportunities. AR2008-026410 and AR2009-031239.
Montana adopts its hunting season and quotas through annual rule as hunting regulations. Demonstrating its charge to maintain a recovered population of wolves, the Commission adopted a harvest quota for 2009 of up to 75 wolves and closed the season at 72 wolves to make sure harvest did not go over the quota. Mont.'s Response to Plaintiffs' Motion for Preliminary Injunction, Exhibit 1 (Document 80-4). The documents and minutes show that the Commission very carefully and deliberately set a conservative quota so that the current population of gray wolves would be maintained or increased.
As further evidence of the effectiveness of Montana law requiring a recovered population, Montana has moved well beyond the population of wolves in the federal recovery standards and is still learning how high the carrying capacity in the state may be. AR2008-026402 through 026520. Outside of the present case, Montana is not discussing 15 breeding pair. Instead, as evidenced by numerous documents and state actions, Montana has committed to keeping the population level where it is, at approximately 400 to 500 wolves. AR2008-026409 through 026414, Mont.'s Response to Plaintiffs' Motion for Preliminary Injunction, Exhibit 1 (Document 80-4), Declaration of Kenneth P. McDonald (Document 80-2) pp. 8-10. The only thing that has changed in the transition from the ESA to Montana's ESA is a regulated harvest. In adopting and implementing its 2009 harvest, Montana demonstrated its commitment to keep the population at its current numbers. Mont.'s Response to Plaintiffs' Motion for Preliminary Injunction, Exhibit 1 (Document 80-4)
B. State regulations are enforceable in contrast to guidelines,
monitoring or promises.
Montana's management is based on statutes and rules that are regulatory and therefore enforceable if Montana does not carry out its regulatory duties. In contrast, this Court has found that discretionary elements of plans, such as "guidelines, monitoring, and promises" do not qualify as adequate regulatory mechanisms. See, Greater Yellowstone Coalition v. Servheen, 2009 WL 3775085, at *9 (D.Mont. 2009). The cases this Court relied on support the clear distinction between statutes and regulations, which Montana calls its framework of laws, versus guidelines, monitoring or promises. A supplemented Oregon habitat plan for future conservation efforts was not an existing regulatory mechanism; the court made the distinction that the plan "operates not like a regulatory scheme, but rather like a voluntary-based incentive program." Federation of Fly Fishers v. Daley, 131 F.Supp. 2d, 1158, 1169 (N.D. Cal. 2000). Monitoring and reporting under a Forest Service plan are not enforceable because they are merely interim advisory steps, not a final agency action, although a claim pertaining to inadequate monitoring would be actionable as an "APA challenge to a final decision." Ecological Center, Inc. v. United States Forest Service, 192 F.3d 922, 924-6, n.6 (9th Cir. 2005). As this Court observed forest plan standards are mandatory in contrast to discretionary guidelines. Greater Yellowstone Coalition v. Servheen, 2009 WL 3775085, at *6 (D.Mont. 2009), citing Miller v. United States, 163 F.3d 591, 594, n.1 (9th Cir. 1998). State regulations to protect species can properly be considered regulatory mechanisms under 16 U.S.C. §1533(a)(1)(D), as opposed to future voluntary actions that cannot be considered. Oregon Natural Resources Council v. Daley, 6 F.Supp. 2d 1139, 1154 (D. Or. 1998).
C. Montana's existing framework of laws are not future actions,
speculative, or unproven.
Montana's regulatory framework is fully existing and proven in its capability to successfully manage wolves in Montana. Plaintiff GYC attempts to characterize Montana's Plan, statutes, regulations, and track record as only future, speculative, and unproven so they can rely on a number of cases. Courts generally have not found that plans or agreements for various types for future, untried, untested, and uncertain to occur activities meet the test of adequate existing regulatory mechanisms. However, these holdings are typically for failure to list or appropriately consider listing a species that agency biologists have determined meets the criteria for listing and that is presently declining, because the FWS opines that a recently executed cooperative agreement will reverse the species' decline and plight when and if future commitments actually work.
For example, in Oregon Natural Resources Council v. Daley, 6 F.Supp. 2d 1139 (D. Or. 1998), NMFS determined that an ESU of coho salmon did not warrant listing "while the State of Oregon attempts to provide adequate habitat protections." Id. at 1151. Agency staff had recommended the ESU be listed as threatened, but the NMFS decided not to list relying on the future implementation of an Oregon initiative to improve habitat. The court found the final rule arbitrary and capricious because "... NMFS cannot possibly judge the effectiveness of any voluntary measures that Oregon does implement because they have not been tested." Id. at 1158. This is because "...the final rule is premised upon promises of future, as well as voluntary actions, the ability of which to protect and restore the Oregon Coast ESU is necessarily speculative and uncertain." Id. at 1159.
Similar circumstances framed the decision in Federation of Fly Fishers v. Daley, 131 F.Supp. 2d 1158 (N.D. CA.). The biological review teams concluded an ESU of steelhead, "are likely to become endangered in the foreseeable future." Id. at 1167. NMFS relied upon a MOU with California and a "steelhead supplement" to an Oregon Plan both completed a week before the final rule declining not to list the ESU. Id. at 1168. The court found NMFS could not rely exclusively on proposals for future action "despite its finding in the Proposed Rule that past conservation efforts were inadequate." Id. at 1169. Friends of the Wild Swan, Inc. v. United States Fish and Wildlife Service, 945 F.Supp. 1388-9 (D. Or. 1996), held the FWS "cannot rely upon its own speculations as to the future efforts of another agency's management plans to put off listing a species...".
Decisions in other circuits have not allowed FWS to avoid a listing decision on a conclusion that future actions will reverse the present, declining status of a species. See, Southwest Center for Biological Diversity v. Babbitt, 939 F.Supp. 49, 51-52 (D.D.S. 1996) (decision not to list the Queen Charlotte goshawk "that may be seriously imperiled" based on the promises of proposed future action. Id. at 51, emphasis added by the court.); Biodiversity Legal Foundation v. Babbitt, 943 F.Supp. 23, 25-26 (D.D.C. 1996) (FWS acknowledged the "Alexander Archipelago wolf is seriously imperiled" but relied on revisions to a management plan to reverse the declining population trend. Id. at 25. The court found a listing determination must be made on the existing record, not on promises of proposed future action, and, if the revised management plan does protect the wolf, the FWS can then remove it from the list. Id. at 26.); Save Our Springs, et al. v. Babbitt, 27 F.Supp. 2d 739 (W.D. Tex. 1997) The court held "promises of proposed future actions" in a conservation agreement cannot be "an excuse for not making a determination on the existing record") Id. at 747.
In sharp and complete contrast to the above-cited cases, the FWS decided to delist a biologically recovered species as opposed to a decision to not list a species admittedly in peril.
Plaintiffs' only challenge to the full recovery of wolves in Montana is that Montana's capability and commitment to manage wolves will not meet the test of adequate "existing regulatory mechanisms" required by 16 U.S.C. §1533(a)(1)(D). (emphasis added). Under FWS oversight, Montana has had full and independent responsibility for wolf management and conservation statewide since 2004. During this time, wolf populations have increased from 152 to 491 wolves.
II. LEAVING WOLVES LISTED IN WYOMING COMPLIES WITH
The FWS retained the endangered species status for wolves in Wyoming based on a failure of the State of Wyoming to adopt adequate existing regulatory mechanisms for the management of wolves within its jurisdictional borders. The text and legislative history of the ESA provides FWS with the flexibility to make listing decisions on a state-by-state basis when it accomplishes the ESA goal of restoring an imperiled species.
A primary purpose of the ESA is "to provide a program for the conservation of such endangered species and threatened species". 16 U.S.C. §1531(b). Further, the text of the ESA states the important role of states in the ultimate goal of saving species. The Secretary must make listing decisions:
"...after taking into account those efforts, if any, being made by any state or foreign nation, or any political subdivision of a state or foreign nation, to protect such species, whether by predator control, protection of habitat and food supply, or other conservation practices, within any area under its jurisdiction..."
15 U.S.C. §1533(b)(1)(A); see, Natural Resources Defense Council v. United States Department of Interior, 113 F.3d 1121, 1127 n.1 (9th Cir. 1997)
The Secretary "shall cooperate to the maximum extent practicable with the states", "may enter into agreements with any State" for management of habitat, and "is authorized to enter into a cooperative agreement... with any State which establishes and maintains an adequate and active program for the conservation of endangered species and threatened species." 16 U.S.C. §1535(a), (b), and (c)(1), respectively. The delisting of the NRM wolf population depends again on the states because the wolf population would continue to be endangered if a state does not have adequate "existing regulatory mechanisms". 16 U.S.C. §1533(a)(1)(D).
The legislative history demonstrates Congress' understanding and commitment to the key role of states and to the flexibility of the ESA. FWS can protect a species in places where the species is not doing well while staying the strong hand of the ESA's prohibitions where a species is prospering.
In enacting the ESA in 1973, Congress expanded its protection of endangered or threatened species by defining endangered or threatened animals as those "in trouble in any significant portion of their range". Congress recognized this as a "significant shift" because prior law only recognized species "threatened with worldwide extinction". H.R. Rep. No. 93-412 (1973).
In its report on the Endangered Species Act of 1973, the Senate Committee on Commerce acknowledged: "[F]lexibility in regulation is enhanced by a provision which allows for listing if the animal is endangered over a 'substantial portion of its range'" S. Rep. No. 93-307 (1973).
In Senate floor debate and action, Senator Tunney in introducing the bill described what he considered as "perhaps the most important section of this bill":
The plan for Federal-State cooperation provides for much more extensive discretionary action on the part of the Secretary and the State agencies. Under existing laws, a species must be declared "endangered" even if in a certain portion of its range, the species has experienced a population boom, or is otherwise threatening to destroy the life support capacity of its habitat. Such a broad listing prevents local authorities from taking steps to insure healthy population levels.
Under S. 1983, however, the Secretary may list an animal as "endangered" thorough all or portion of its range. An animal might be "endangered" in most States but overpopulated in some. In a State in which a species is overpopulated, the Secretary would have the discretion to list that animal as merely threatened or to remove it from the endangered species listing entirely while still providing protection in areas where it was threatened with extinction. In that portion of its range where it was not threatened with extinction, the States would have full authority to use their management skills to insure the proper conservation of the species.
119 Cong. Rec. 25, 662, 69 (July 24, 1973); Federal Defendant Exhibit F (Document 117-6), see, Defenders of Wildlife v. Norton, 258 F.3d 1136, 1144.
In 1979, the Senate Committee on Environment and Public Works considered an amendment to the ESA recommended by the General Accounting Office (GAO). The GAO proposed to amend the definition of Species to "prevent the FWS from listing geographically limited population of vertebrates as threatened or endangered." S. Rep. No. 96-151 (1979) (Montana's Exhibit A). Both the FWS and NMFS opposed "...such a change on the basis that it would severely limit their ability to require the appropriate level of protection for a species based on its actual biological status." Id. The committee rejected this proposal reasoning:
One of the weaknesses of the 1969 act which was corrected in the 1973 amendments was the inability of the FWS to adopt different management practices for healthy, threatened or endangered populations.
The committee agrees that there may be instances in which FWS should provide for different levels of protection for populations of the same species.
The case law does not specifically address listing decisions by geographic populations or by state boundaries. In Alsea Valley Alliance v. Evans, 161 F.Supp. 2d 1154, 1162, the court said, "NMFS may consider listing only as entire species, subspecies or distinct population segment (DPS) of any species." 16 U.S.C. §1532(16). The court would not allow a listing distinction between hatchery spawned salmon and naturally spawned coho classified in the same ESU and swimming side-by-side. In contrast and in the part of its decision applicable to the NRM wolf delisting, the court opined that the ESA "...allows agencies to differentiate its listings among the same species based, in part, on the degree of threat that species face in different geographic regions... as a degree of harm experienced 'throughout all or a significant portion of its range...'" Id. at 1162.
When this same issue, but now with anadromous steelhead trout, eventually reached the 9th Circuit, the court affirmed that the entire ESU, containing both hatchery and natural steelhead must be listed; however, the court also held that NMFS can consider separately the contributions of hatchery and natural spawned fish for purposes of a downlisting decision and issuing protective take regulations pursuant to 16 U.S.C. §1533(d). Trout Unlimited v. Lohn, 559 F.3d 946, 961-2 (9th Cir. 2009). Montana asserts these two cases affirm the Congressional intent that the ESA be administered flexibly to address the actual status and circumstances of a species when making listing decisions. This is what the FWS did in continuing the endangered status of wolves in Wyoming.
FWS's downlisting of the gray wolf was rejected by two courts. However, each court recognized FWS' flexibility inherent in the ESA to treat populations of the same species differently. The Vermont Court said, "[T]he FWS does not have to list an entire species as endangered when only one of its populations faces extinction." National Wildlife Federation v. Norton, 386 F.Supp. 2d 553, 564 (D.Vt. 2005), quoting National Association of Home Builders v. Norton, 340 F.3d 835, 842. The Oregon Court suggested that, "[I]nstead of drawing a line around the distinct populations in the Western Great Lakes and the Northern Rockies, the FWS [impermissibly] extended the boundaries from these core areas to encompass the wolf's entire historical range". Defenders of Wildlife v. Secretary of the United States Department of the Interior, 354 F.Supp. 2d 1156, 1171 (D. Ore. 2005).
The phrase "significant portion of the range" is often ambiguous, see, Defenders of Wildlife v. Norton, 258 F.3d 1136, 1141 (9th Cir. 2001), in the circumstances of considering whether to list or not list a whole species. This is not the case here where the application of the phrase has concrete meaning in determining how geographically or politically encircled populations should be listed.
The ESA, as supported by its legislative history, has the practical wisdom of flexibility to protect populations of a species as needed rather than forcing unnecessary, wasteful, and counter intuitive all-or-nothing choices for an entire species. Nothing in ESA requires such difficult and impractical decisions. In contrast, the FWS has the latitude to make listing decisions for geographically or politically defined populations.
The NRM wolf population is recovered biologically and can be delisted anywhere NRM wolves will be protected by adequate existing regulatory mechanisms. Montana and Idaho meet this latter, critical criterion, but Wyoming does not. Unless Wyoming's population can remain listed, the flexibility of the ESA evaporates, as does a fundamental purpose of the ESA to establish Federal-State cooperation.
Gray wolves are a species. The gray wolves in Wyoming are therefore not an entity below a DPS or a subspecies. Delisting in the two qualifying states but not in the state that does not qualify, does not, and cannot, be a scientific, biological separation of a single taxon. It does not create two different subspecies or two entities below subspecies. The gray wolf is a listed species in Wyoming and a delisted species in Montana and Idaho, not two different taxonomic classifications. Treating subpopulations with different listing status does not create different species, thus does not create an entity below a DPS but instead two concurrent classifications of the same DPS.
The border of Wyoming defines the significant portion of the range of the NRM gray wolf population that does not meet the adequate existing regulatory mechanisms protection needed for delisting. There is no doubt that Wyoming's wolf population is a significant portion of the NRM wolf's range. This significant portion of the range is separated and distinguished by a political boundary, rather than a biological boundary, because the inadequate regulatory mechanism threat is one based on the jurisdictional coverage and limit of Wyoming's wolf management plan, its regulation, and its statutes, all of which define political choices, not assessments of the status of a species' health and habitat. It is allowed under the ESA, if not required, to continue to classify wolves in Wyoming as endangered while recognizing the full biological and political recovery of the remainder of the NRM gray wolf population.
III. THE RECOVERY REQUIREMENT OF GENETIC EXCHANGE
AMONG THE THREE CORE POPULATIONS OF THE NORTHERN
ROCKY MOUNTAIN WOLVES HAS BEEN MET AND WILL BE
MET INTO THE FUTURE.
This Court in its 2008 preliminary injunction decision held that the FWS was unlikely to prevail on the merits of its 2008 decision to delist the NRM wolf population because the delisting criteria of genetic exchange with the GYA core recovery area had not been documented and there was "strong evidence that genetic exchange has not occurred." Defenders of Wildlife v. Hall, 565 F.Supp. 2d 1160, 1170-1172 (D. Mont. 2008). The Court did find, as expressed in footnote 3: "[t]he northwestern Montana and central Idaho core recovery areas are well connected to each other, and to wolf populations in Canada, through regular dispersals. These subpopulations have established genetic and demographic linkages." Id. at 1169.
In the 2009 delisting rule, the FWS has documented genetic exchange with and dispersal of wolves to the GYA wolf population. The critical documentation is summarized in the final delisting rule:
"While the GYA is the most isolated core recovery area within the NRM DPS ..., radio telemetry data demonstrate that the GYA is not isolated as at least one wolf naturally disperses into the GYA each year and at least 4 radio-collared non-GYA wolves have bred and produced offspring in the GYA in the past 12 years (1996-2008).
74 Fed. Reg. 15161 (April 2, 2009); Federal Defendant's SOF ¶141.
Plaintiff GYC does not dispute this demonstration of genetic exchange, but argues instead that it is not enough. Plaintiff GYC Memorandum in Support of Motion for Summary Judgment (Document 106-1) at 12-13. However, the above proven average of one dispersing breeder every three years is not the whole story. Because only 30 percent of the NRM wolf population has been radio-collared, the FWS has concluded that "[u]ndoubtedly many other dispersal events have occurred but not been detected". 74 Fed. Reg. 15128. Further, subsequent analysis after the 2008 delisting rule was vacated shows "gene flow among the GYA and the other recovery areas". 74 Fed. Reg. 15133, AR2008-028305-6 (vonHoldt et al. 2008).
Thus, the FWS concluded that other noncollared wolves have dispersed into and bred in the GYA and, because a wolf generation is approximately four years, the genetic connection of two core areas with GYA exceeds the widely accepted rule of one breeding migrant per generation that is necessary to minimize genetic drift and inbreeding depression. 74 Fed. Reg. 15176; AR 2009-038062 (Mills 2008).
Although the FWS did not do this, there is some practical logic to interpreting the numbers. If 4 breeders are documented in 12 years for 1 per 3 years and this is based on 30% of the wolves (those radio-collared), then the actual number may be 3 times or 1 migrating breeder per year.
Plaintiff GYC argues in a different direction. First, the criteria should be one migrant breeder every two years and this success will not continue under state management of a delisted wolf population.
Plaintiff GYC recognizes Dr. Mills as the "agency expert". Plaintiff GYC Memorandum in Support of Motion for Summary Judgment (Document 106-1) at 13. It is important to underscore precisely the opinion of Mills. In his expert opinion the "...best available science would prescribe the well-studied. One Migrant Per Generation (OMPE) rule of thumb..." and "[o]ne immigrant per generation would be one breeding wolf every four years; doubling that to be conservative and allow for error would be two breeding wolves every four years, or one every other year on average." AR2009-038070 (Mills 2008). Even the doubly conservative Mills' average has been met or exceeded over the last twelve years.
Montana will continue to manage wolves as it has for five years now. Management actions will allow the population to remain stable or increase and, therefore, wolf dispersal into GYA will continue, likely at an increasing rate.
Both Plaintiffs speculate that in the future the wolf population will decrease in Montana although there is no support for this prediction. Such speculation as to the effect of a future event is generally given little credence in listing decisions. See, pages 15-19 of this brief for an analysis of case law.
Human-assisted genetic exchange with the GYA wolf population will be managed by Montana and Idaho but only in the unlikely circumstance that it is needed to solve a presently unanticipated problem. This is the commitment made by Montana and Idaho in a MOU signed by Montana, Idaho, and FWS. 74 Fed. Reg. 15135; AR2009-37222; Federal Defendants SOF ¶32. This is distinguished from future, speculative action to hopefully correct a present deficiency.
This Court has held that concerns about long-term genetic diversity "do not warrant a continued threatened listing for the Yellowstone DPS" of grizzly bears where the FWS provided a reasonable explanation for its conclusions. Greater Yellowstone Coalition v. Servheen, 2009 WL 3775085, at *14 (D. Mont. 2008). This Court also approved translocation of grizzly bears when needed to maintain genetic diversity in the future. Id. at *12-*14.
Further, genetic diversity is greatly enhanced by the connection to Canadian populations. The NRM gray wolf population represents a 400-mile southern range expansion of a vast contiguous wolf population that numbers 12,000 in western Canada and about 65,000 across all of Canada and Alaska. 74 Fed. Reg. 15140; Federal Defendant SOF ¶170.
The ESA requires "all methods and procedures" to the point at which "measures pursuant to this Act are no longer necessary." 16 U.S.C. §1532(3). Gray wolves were reintroduced into the Central Idaho recovery area and into Yellowstone National Park in 1995 and 1996. 74 Fed. Reg. 15137. Human-assisted genetic exchange is only a back up if future circumstances require it. The state wolf managers, Idaho and Montana, have a present commitment to this proven technique. AR2009-037223 (MOU); 74 Fed. Reg. 15133-35; AR2009-37872, 37950, 37973 (McDonald 2008). Human assisted genetic exchange has been a part of the recovery goal since 1994. 74 Fed. Reg. 15131; AR2009-42228 (1994 EIS, Appendix 9).
For the reasons cited in this brief and in Federal Defendants memorandum, the FWS fully complied with the requirements of the ESA in adopting the Final Rule for the NRM gray wolf population.
Montana respectfully request this Court to uphold the Final Rule, grant Montana's cross-motion for summary judgment, and deny the Plaintiffs' motions for summary judgment.
Respectfully submitted this 2nd day of December 2009.
State of Montana
/s/ Robert N. Lane
Chief Legal Counsel
Special Assistant Attorney General
Montana Department of Fish, Wildlife and Parks
/s/ Martha Williams
Agency Legal Counsel
Special Assistant Attorney General
Montana Department of Fish, Wildlife and Parks
Certificate of Compliance
Pursuant to Local Rule 7.1(d)(2)(A) the attached brief is double spaced, typeface of 14 point, and contains 6485 words, excluding the caption and certificates of services and compliance, as indicated by the word count of the word-processing system used to type this brief.
/s/ Robert N. Lane
Chief Legal Counsel
Special Assistant Attorney General
Montana Department of Fish, Wildlife and Parks
Certificate of Service
I certify that on 2nd day of December 2009, Montana served copies of the attached document by CM/ECF.
/s/ Robert N. Lane
Chief Legal Counsel
Special Assistant Attorney General
Montana Department of Fish, Wildlife and Parks