Cascadia Wildlands et al v. Usda-Aphis Wildlife Services et al

Cross Motion for Summary Judgment and Response to Plaintiffs' Motion for Summary Judgment.

D. Or.October 31, 2016

BILLY J. WILLIAMS, OSB # 901366 United States Attorney District of Oregon SEAN E. MARTIN, OSB # 054338 Assistant United States Attorney 1000 SW Third Ave., Suite 600 Portland, Oregon 97204-2902 sean.martin@usdoj.gov (503) 727-1010 JOHN C. CRUDEN Assistant Attorney General Environment and Natural Resources Division JARED S. PETTINATO, MT Bar # 7434 Trial Attorney Natural Resources Section Environment and Natural Resources Division United States Department of Justice P.O. Box 7611 Washington, D.C. 20044-7611 Jared.Pettinato@usdoj.gov (202) 305-0203 (202) 353-0506 (fax) Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON EUGENE DIVISION CASCADIA WILDLANDS, et al., Plaintiffs, v. DAVID WILLIAMS, et al., Federal Defendants. Case No. 6:16-cv-00177-MC FEDERAL DEFENDANTS’ CROSS- MOTION FOR SUMMARY JUDGMENT AND COMBINED BRIEF IN SUPPORT OF CROSS- MOTION AND RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 1 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC ii TABLE OF CONTENTS MOTION ............................................................................................................... 1 MEMORANDUM ................................................................................................. 1 INTRODUCTION ................................................................................................ 1 LEGAL BACKGROUND ..................................................................................... 3 I. The National Environmental Policy Act of 1969 ...................................... 3 II. USDA Wildlife Services Authorities .......................................................... 4 FACTUAL BACKGROUND ................................................................................ 6 I. Oregon manages gray wolves in eastern Oregon under its inherent police power and to advance its sovereign interest in wildlife. ............... 6 II. USDA Wildlife Services concluded that assisting Oregon in implementing Oregon’s Plan would not cause significant impacts on the environment. ...................................................................................... 11 III. Oregon has managed its gray wolves without USDA Wildlife Services. .................................................................................................... 13 IV. The Confederated Tribes of the Umatilla Indian Reservation also exercise sovereign authority to manage gray wolves. ............................ 13 STANDARD OF REVIEW ................................................................................. 14 ARGUMENT ...................................................................................................... 15 I. Cascadia lacks the injury and the redressability necessary for Article III standing. .............................................................................................. 15 II. Congress did not waive sovereign immunity from this lawsuit because Cascadia has an independent and adequate state ground for challenging Oregon’s Plan. ...................................................................... 21 III. NEPA required no analysis of Oregon’s Plan because Oregon makes the decisions and controls the program. ................................................. 23 A. Oregon’s Plan does not qualify as a major federal action. .................. 23 B. Oregon is the only legally relevant cause of killing wolves, so NEPA does not require USDA Wildlife Services to analyze those impacts. . 25 Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 2 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC iii IV. USDA Wildlife Services took a hard look at the incremental impact of its actions on gray wolves. ................................................................... 28 A. USDA Wildlife Services took a hard look at the impacts on gray wolf populations. ................................................................................... 28 B. The APA requires the Court to defer to USDA Wildlife Services’ conclusion that, even if it did not assist Oregon, Oregon would lethally remove wolves. ......................................................................... 31 C. USDA Wildlife Services took a hard look at the impacts on non- target species. ........................................................................................ 33 V. USDA Wildlife Services reasonably concluded that gray wolf management activities will not significantly impact the environment. ............................................................................................. 36 A. USDA Wildlife Services reasonably concluded that the environmental effects of assisting Oregon would not cause significant impacts. ............................................................................... 38 B. Assisting Oregon with its Plan will not significantly affect public safety. ..................................................................................................... 40 C. Unique characteristics of the geographic area did not mandate an EIS. ......................................................................................................... 42 D. USDA Wildlife Services reasonably concluded that the Decision would not cause highly controversial, highly uncertain environmental effects, or unique or unknown risks............................ 44 E. USDA Wildlife Services rationally concluded that assisting Oregon would no significantly impact endangered or threatened species. ..... 48 CONCLUSION ................................................................................................... 49 Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 3 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC iv TABLE OF AUTHORITIES Cases Baldwin v. Fish & Game Comm’n, 436 U.S. 371 (1978) .............................................................................. 1, 4, 5, 6 Bark v. Northrup, No. 3:13-cv-828-AA, 2016 WL 1181672 (D. Or. March 25. 2016) ................ 49 Bicycle Trails Council v. Babbitt, 82 F.3d 1445 (9th Cir. 1996) .......................................................................... 41 California v. Block, 690 F.2d 753 (9th Cir. 1982) ............................................................................ 4 Coker v. Sullivan, 902 F.2d 84 (D.C. Cir. 1990) .......................................................................... 22 Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752 (2004) ................................................................................. passim Dickerson, 345 P.3d 447 (Or. 2015) ................................................................................ 7, 8 El Rio Santa Cruz Neighborhood Health Ctr., Inc v. U.S. Dep’t of Health and Human Servs., 396 F.3d 1265 (D.C. Cir. 2005) ...................................................................... 22 Enos v. Marsh, 769 F.2d 1363 (9th Cir. 1985) ........................................................................ 25 Envtl. Prot. Info. Ctr. v. U.S. Forest Serv., 451 F.3d 1005 (9th Cir. 2006) ........................................................................ 49 Forest Guardians v. U.S. Forest Serv., 329 F.3d 1089 (9th Cir. 2003) ........................................................................ 15 Friends of the Earth, Inc. v. Coleman, 518 F.2d 323 (9th Cir. 1975) .............................................................. 23, 24, 25 Garcia v. McCarthy, No. 13-cv-3939-WHO, 2014 WL 187386 (N.D. Cal. Jan. 16, 2014) .............. 22 George v. Bay Area Rapid Transit, 577 F.3d 1005 (9th Cir. 2009) ........................................................................ 14 Goat Ranchers v. Williams, 379 Fed. App’x 662 (9th Cir. 2010) .......................................................... 19, 20 Greenpeace Action v. Franklin, 14 F.3d 1324 (9th Cir. 1993) .................................................................... 45, 46 Interstate Commerce Comm’n v. Jersey City, 322 U.S. 503 (1944) ........................................................................................ 31 Ka Makani ‘O Kohala Ohana Inc. v. Dep’t of Water Supply, 295 F.3d 955 (9th Cir. 2002) .................................................................... 24, 26 Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 4 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC v Lacoste v. Dep’t of Conservation, 263 U.S. 545 (1924) .......................................................................................... 1 Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008) .......................................................................... 36 Lane v. Pena, 518 U.S. 187 (1996) ........................................................................................ 21 Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) .................................................................................. 15, 40 Marsh v. Or. Nat. Res. Council, 490 U.S. 360 (1989) ...................................................................... 36, 37, 38, 47 Metro. Edison Co. v. People Against Nuclear Energy, 460 U.S. 766 (1983) .................................................................................. 26, 41 Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) ................................................................................... passim Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233 (9th Cir. 2005) .................................................................. 39, 48 Nat’l Audubon Soc’y, Inc. v. Davis, 307 F.3d 835 .................................................................................................... 16 Nat’l Parks & Conservation Ass’n v. DOT, 222 F.3d 677 (9th Cir. 2000) .................................................................... 30, 31 Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058 (9th Cir. 2008) ........................................................................ 41 Neighbors of Cuddy Mountain v. U.S. Forest Serv., 137 F.3d 1372 (9th Cir. 1998) ........................................................................ 35 North Carolina v. FAA, 957 F.2d 1125 (4th Cir. 1992) ........................................................................ 45 Nuclear Info. and Res. Serv. v. Nuclear Regulatory Comm’n, 457 F.3d 941 (9th Cir. 2006) .......................................................................... 19 Nw. Ecosystem All. v. U.S. Fish & Wildlife Serv., 475 F.3d 1136 (9th Cir. 2007) ........................................................................ 14 Nw. Envtl. Def. Ctr. v. Bonneville Power Admin., 117 F.3d 1520 (9th Cir. 1997) ........................................................................ 17 Presidio Golf Club v. Nat’l Park Serv., 155 F.3d 1153 (9th Cir. 1998) ........................................................................ 44 Pritikin v. Dep’t of Energy, 254 F.3d 791 (9th Cir. 2001) .......................................................................... 18 River Runners for Wilderness v. Martin, 593 F.3d 1064 (9th Cir. 2010) ........................................................................ 14 Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) ...................................................................................... 3, 4 Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 5 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC vi Rybachek v. EPA, 904 F.2d 1276 (9th Cir. 1990) ........................................................................ 46 Salmon Spawning & Recovery All. v. Gutierrez, 545 F.3d 1220 (9th Cir. 2008) ........................................................................ 18 San Luis & Delta-Mendota Water Auth. v. Locke, 776 F.3d 971 (9th Cir. 2014) .......................................................................... 38 Shell Oil Co. v. Train, 585 F.2d 408 (9th Cir. 1978) .......................................................................... 22 Snoqualmie Indian Tribe v. Fed. Energy Regulatory Comm’n, 545 F.3d 1207 (9th Cir. 2008) ........................................................................ 40 Spiller v. White, 352 F.3d 235 (5th Cir. 2003) .................................................................... 37, 38 Summers v. Earth Island Inst., 555 U.S. 488 (2009) ........................................................................................ 16 Tri-Valley CAREs v. U.S. Dep’t of Energy, 671 F.3d 1113 (9th Cir. 2012) .......................................................................... 4 United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33 (1952) .......................................................................................... 42 United States v. Mottaz, 476 U.S. 834 (1986) ........................................................................................ 21 United States v. Park Place Assocs., Ltd., 563 F.3d 907 (9th Cir. 2009) .......................................................................... 21 Vill. of Los Ranchos v. Barnhart, 906 F.2d 1477 (10th Cir. 1990) .......................................................... 27, 29, 30 Vt. Yankee Nuclear Power Corp v. NRDC, 435 U.S. 519 (1978) ........................................................................................ 32 Wasco Prods., Inc. v. Southwall Techs., Inc., 435 F.3d 989 (9th Cir. 2006) .......................................................................... 41 White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980) ........................................................................................ 13 WildEarth Guardians v. USDA, 795 F.3d 1148 (9th Cir. 2015) ............................................................ 16, 20, 32 Younger v. Harris, 401 U.S. 37 (1971) .......................................................................................... 27 Statutes Act of Mar. 3, 1885, 23 Stat. 353, 354 ................................................................. 5 Act of June 30, 1886, ch. 575, 24 Stat. 101 ......................................................... 5 Act of Mar. 2, 1895, ch. 169 28 Stat. 727, 728, 730 ............................................ 5 Act of Apr. 14, 1896, ch. 140, 29 Stat. 99, 102.................................................... 5 Act of May 25, 1900, ch. 553, §§ 1, 5, 31 Stat. 187-89 ........................................ 5 Act of Mar. 2, 1931, Pub. L. No. 71-776, ch. 370, 46 Stat. 1468 ........................ 6 Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 6 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC vii 16 U.S.C. §§ 1531-1544 ........................................................................................ 1 42 U.S.C. § 4332(C) ............................................................................................ 23 42 U.S.C. § 4342 ................................................................................................... 3 42 U.S.C. §§ 4321-4347 ........................................................................................ 2 5 U.S.C. § 704 ..................................................................................................... 21 5 U.S.C. § 706 ..................................................................................................... 46 5 U.S.C. § 706(2)(A) ........................................................................................... 14 5 U.S.C. §§ 701-706 ........................................................................................ 3, 14 7 U.S.C. 426-426c ................................................................................................. 6 Rules Federal Rule of Civil Procedure 56 ..................................................................... 3 Regulations 40 C.F.R. § 1508.13 .............................................................................................. 4 40 C.F.R. § 1508.27(b)(3) ................................................................................... 42 40 C.F.R. § 1508.27(b)(4) ................................................................................... 44 40 C.F.R. § 1508.27(b)(9) ................................................................................... 49 40 C.F.R. §§ 1501.4 .............................................................................................. 4 40 C.F.R. §§ 1502.9 .............................................................................................. 3 40 C.F.R. §§ 1508.27(b)(1) ................................................................................. 38 76 Fed. Reg. 25590-01 (May 5, 2011) ................................................................ 10 C.F.R. §§ 1500.1-1517.7 ....................................................................................... 3 OAR 635-110-0010(8) ........................................................................................... 8 OAR 635-110-0020 ............................................................................................... 9 OAR 635-110-0030 ............................................................................................... 9 Other Authorities 16 Cong. Rec. 1938 (Feb. 20, 1885) ..................................................................... 5 41 Cong. Rec. 1749-51 (Jan. 26, 1907) ................................................................ 5 42 Cong. Rec. 78-79 (Dec. 3, 1907) ...................................................................... 5 74 Cong. Rec. 3817-19 (Feb. 2, 1931) .................................................................. 6 Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 7 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC viii TABLE OF ACRONYMS APA Administrative Procedure Act, 5 U.S.C. §§ 701-706 AR Administrative Record CEQ Council on Environmental Quality Decision Decision and Finding of No Significant Impact, AR1 FONSI Finding of no significant impact EA Environmental assessment EIS Environmental impact statement ESA Endangered Species Act (ESA), 16 U.S.C. §§ 1531- 1544 Fish and Wildlife United States Department of the Interior Fish and Wildlife Service NEPA The National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4347 Oregon’s Plan Oregon’s Wolf Conservation and Management Plan, AR7563 USDA Wildlife Services United States Department of Agriculture, Animal and Plant Health Inspection Service, Wildlife Services Washington’s Wolf Plan Washington’s Wolf Conservation and Management Plan (December 2011), ECF No. 20-2. Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 8 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC ix Admin. R. 20 Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 9 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC 1 MOTION Federal Defendants cross-move for summary judgment on all claims against Cascadia Wildlands, Center for Biological Diversity; WildEarth Guardians; Predator Defense; and Project Coyote (collectively, Cascadia), supported by the accompanying memorandum and USDA Wildlife Services’ Administrative Record. Under LR 7-1, the Parties conferred but could not resolve this cross-motion. MEMORANDUM INTRODUCTION Oregon manages the wildlife within its borders as a sovereign state exercising its police powers, except for species listed under the Endangered Species Act (ESA), 16 U.S.C. §§ 1531-1544. See Admin. R. (AR) 7569-70, 7579-81. The Supreme Court has recognized that “[p]rotection of the wild life of the state is peculiarly within the police power, and the state has great latitude in determining what means are appropriate for its protection.” Lacoste v. Dep’t of Conservation, 263 U.S. 545, 55 (1924); Baldwin v. Fish & Game Comm’n, 436 U.S. 371, 391 (1978). While the ESA still extends federal protection to gray wolves in western Oregon, Oregon exercises sole jurisdiction over gray wolves in eastern Oregon. AR2, 13. Here, Oregon requested USDA Wildlife Services to act as Oregon’s agent in implementing aspects of Oregon’s Wolf Conservation and Management Plan (Oregon’s Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 10 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC 2 Plan). USDA Wildlife Services agreed to assist in lethal and non-lethal gray wolf management consistent with Oregon’s Plan and administrative rules. Decision and Finding of No Significant Impact (the Decision), AR1; AR181. Cascadia claims that USDA Wildlife Services violated the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321-4347, because the agency failed to take a hard look at the impacts of its Decision to assist Oregon in lethally removing some wolves who chronically attack and kill livestock. Cascadia also argues that USDA Wildlife Services inaccurately concluded that its assistance to Oregon would not cause significant environmental impacts. Cascadia’s claims have no legal merit. Indeed, this Court lacks Article III jurisdiction. Oregon decides in its sole discretion whether to remove a wolf that chronically attacks or kills livestock, AR7, so USDA Wildlife Services is not causing any harms Cascadia alleges. Moreover, Oregon would complete this work even if USDA Wildlife Services did not assist, AR313, so the Court cannot redress Cascadia’s claims. Cascadia lacks Article III standing. Even if this Court had jurisdiction, NEPA does not apply because this Decision does not qualify as a major federal action. Because Oregon makes all relevant decisions, USDA Wildlife Services has no control over any potential environmental impacts. NEPA does not require USDA Wildlife Services to analyze Oregon’s actions. Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 11 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC 3 Finally, even if this Court had jurisdiction and even if NEPA applied, USDA Wildlife Services satisfied NEPA by taking a hard look at the impacts of the Decision and by making the factual finding that the Decision would not cause any significant environmental impacts. Federal Rule of Civil Procedure 56 and the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706, entitle Federal Defendants to summary judgment. LEGAL BACKGROUND I. The National Environmental Policy Act of 1969 Congress enacted NEPA to ensure (1) that agencies consider “detailed information concerning significant environmental impacts” of “major federal actions” and (2) that they make that information available to the public, so the public “may also play a role in both the decisionmaking process” and in implementing the resulting decision. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989). NEPA established the Council on Environmental Quality (CEQ), which promulgated regulations to govern NEPA compliance. 42 U.S.C. § 4342; see 40 C.F.R. §§ 1500.1-1517.7; Robertson, 490 U.S. at 354. If an agency expects significant impacts, it can issue an environmental impact statement (EIS) directly. 40 C.F.R. §§ 1502.9, 1503.1(a). If, however, the agency cannot predict whether a federal action may cause a significant impact, it may prepare an environmental assessment (EA) to help it reach a Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 12 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC 4 conclusion on the significance of the impacts. 40 C.F.R. §§ 1501.4, 1508.9. Courts describe an EA as a “workable public document that briefly provides evidence and analysis for an agency’s finding regarding an environmental impact.” Tri-Valley CAREs v. U.S. Dep’t of Energy, 671 F.3d 1113, 1129 (9th Cir. 2012). NEPA does not require an agency to “compile an exhaustive examination of each and every tangential event that potentially could impact the local environment. Such a task is impossible, and never-ending.” Id. If upon reviewing the EA, the agency determines that the effects will not be significant, it can issue a “finding of no significant impact” (FONSI) and proceed. 40 C.F.R. § 1508.13. Although NEPA requires agencies to analyze and disclose publicly any significant environmental effects of proposed major federal actions, it does not require agencies to choose the environmentally preferable alternative. See Robertson, 490 U.S. at 350. “NEPA merely prohibits uninformed—rather than unwise—agency action.” Id. at 351. “Once satisfied that a proposing agency has taken a ‘hard look’ at a decision’s environmental consequences, the review is at an end.” California v. Block, 690 F.2d 753, 761 (9th Cir. 1982). II. USDA Wildlife Services Authorities Historically, Congress did not regulate wildlife and left that authority entirely to the states. See Baldwin, 436 U.S. at 384 (“the States had complete Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 13 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC 5 ownership over wildlife within their boundaries.”). In the mid-1880s, Congress created the predecessor to USDA Wildlife Services, the USDA Division of Economic Ornithology and Mammalogy, to study “the interrelation of birds and agriculture.” Act of Mar. 3, 1885, 23 Stat. 353, 354; 16 Cong. Rec. 1938 (Feb. 20, 1885); Act of June 30, 1886, ch. 575, 24 Stat. 101. As Congress expanded that agency’s authority, however, it consistently deferred to the states’ exercise of their inherent police powers. About a decade later, Congress renamed the agency the Biological Survey. Compare Act of Mar. 2, 1895, ch. 169 28 Stat. 727, 728, 730, with Act of Apr. 14, 1896, ch. 140, 29 Stat. 99, 102. It later expanded the Survey’s authority to interstate wild game and allowed it to enforce the wild game laws of the destination states that “exercise[d]” their “police powers.” Act of May 25, 1900, ch. 553, §§ 1, 5, 31 Stat. 187-89; see 41 Cong. Rec. 1749-51 (Jan. 26, 1907). In his December 1907 State of the Union message, President Theodore Roosevelt applauded the work of the USDA Division of Biological Survey. He commended it for researching and discovering relationships among birds, insects, forests, weeds, rodents, and invasive species. 42 Cong. Rec. 78-79 (Dec. 3, 1907). He recognized that the Survey “cooperated with local officials in every State in the Union,” and regulated interstate traffic in game. Id. Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 14 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC 6 Later, during the Great Depression and in part to prevent “the damage to crops,” Congress sought to “secure control of the predatory animals and rodents that are causing great damage to the livestock, agricultural, and horticultural industries in this country.” 74 Cong. Rec. 3817-19 (Feb. 2, 1931). After debating over federalism concerns, id., Congress authorized the Biological Survey to manage wildlife that injured those industries. Act of Mar. 2, 1931, Pub. L. No. 71-776, ch. 370, 46 Stat. 1468. While authorizing “campaigns for the destruction or control of such animals,” it proposed “cooperat[ing] with States . . . .” Id. Today, USDA Wildlife Services continues to respond to requests for assistance in implementing wildlife damage management necessary to protect agricultural and public resources, as well as human health and safety. 7 U.S.C. 426-426c. AR32. FACTUAL BACKGROUND I. Oregon manages gray wolves in eastern Oregon under its inherent police power and to advance its sovereign interest in wildlife. In its Decision, USDA Wildlife Services concluded that assisting Oregon in implementing Oregon’s Plan in eastern Oregon would not cause significant environmental impacts. AR1, 8, 20 (map). USDA Wildlife Services limited its assistance to that area because the United States Department of the Interior Fish and Wildlife Service (Fish and Wildlife) removed that distinct Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 15 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC 7 population segment of gray wolves from the list of endangered and threatened species under the ESA. AR13, 22, 150. Therefore, Oregon exercises complete jurisdiction over the gray wolves there. AR14, 18, 20 (map), 26, 32. Oregon manages wildlife within its borders as trustees on behalf of all Oregonians. Oregon v. Dickerson, 345 P.3d 447, 455 (Or. 2015) (en banc). In the “public interest,” it aims to “benefit of the wildlife resource” and to “allow for the best social, economic and recreational utilization of wildlife resources by all user groups.” ORS 496.012. Gray wolves returned to Oregon in 1999, after an absence of nearly 60 years. AR7569; AR13. Gray wolves’ return sparked interest throughout Oregon, and Oregon initiated an extensive public involvement process for deciding how to manage them. AR73. That process culminated in 2005 when Oregon adopted the first version of its plan. AR19, 7569-70, 7579-81. In 2011, plaintiffs sued Oregon over its plan, AR13, and in 2014, Oregon amended its administrative rules that implement its plan. AR13-14. In the initial version of Oregon’s Plan, Oregon aimed both to ensure the conservation of gray wolves and to protect the social and economic interests of all Oregonians. AR7570. When they attack cattle, gray wolves often kill only one cow, but when they attack sheep, they typically kill about fourteen sheep. AR23. In one confirmed attack, gray wolves killed ninety-eight sheep. Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 16 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC 8 Id. In Oregon, the same wolves killed twenty-two lambs in one day, and additional lambs and a goat in the days and months that followed. Id. Oregon’s Plan recognizes that wolf-livestock conflict “continues to be a major problem associated with wolf conservation efforts throughout the world.” AR7609. It finds that livestock seasonally occupies a “significant portion of potential wolf habitats in Oregon,” and that situation has resulted “and will continue to result in conflict, with wolves choosing livestock as prey.” AR7593. Oregon’s Plan manages conflict through a combination of strategies that include “lethal controls on packs and/or individual wolves that [attack or kill] livestock.” AR7612.1 Oregon’s Plan recognizes that Oregon intended to ask USDA Wildlife Services to help it implement its plan. AR7602-03. Oregon’s Plan allows different actions depending on whether Oregon classifies gray wolves under the Oregon Endangered Species Act, ORS 496.171-192. Under Phase I, while listed as a state endangered species, Oregon’s Plan 1 USDA Wildlife Services’ Administrative Record commonly uses the term “depredation.” OAR 635-110-0010(8) defines an “incident of depredation” as “a single event resulting in the injury or death of one or more lawfully present livestock that is reported to [Oregon] for investigation, and upon investigation by [Oregon] or its agent(s), [Oregon] confirms to have been caused by a wolf or group of wolves.” Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 17 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC 9  Allowed livestock producers to “distract a wolf from a livestock operation or area of human activity,” by shouting, for example, or by firing a shot in the air;  Allowed livestock producers to obtain a permit for injuring a wolf, without killing it, to prevent it from injuring or killing livestock, or to kill a wolf “in the act” of attacking livestock;  Allowed Oregon and USDA Wildlife Services to relocate wolves “to resolve an immediate localized problem,”  Allowed Oregon or USDA Wildlife Services to first employ non-lethal methods to address wolves that chronically attack or kill livestock, and to employ lethal methods only if necessary. AR7566, 7611-19. Oregon’s administrative rules allowed Oregon to remove particular wolves lethally only if it “reasonably believe[d] . . . the same wolf or wolves” attacked or killed livestock in four confirmed incidents within seven days. OAR 635-110-0010(11)(a); AR118. Oregon’s Plan expanded options for addressing “wolf-livestock conflict” as populations expanded and as Oregon delisted gray wolves. AR7566, 7611- 19. Under Phase II, Oregon allows livestock producers to obtain a permit to kill wolves who chronically attack or kill livestock. See AR7566, 7617-18; OAR 635-110-0020.2 2 Oregon delisted gray wolves in November 2015, so it is implementing Phase II. Wolf Program Updates, dfw.state.or.us/wolves/wolf_program_updates.asp (last visited Oct. 31, 2016). If populations expand further, Oregon’s Plan Phase III would allow Oregon to conduct a controlled hunt to decrease wolves who chronically attack or kill livestock, or to reduce pressure on wild ungulate (primarily deer or elk) populations. AR7566, 7618-19; AR68; OAR 635-110-0030. USDA Wildlife Services only analyzed its participation in Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 18 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC 10 Oregon amended its Plan after some of these Plaintiffs challenged it in state court. In 2011, Fish and Wildlife removed gray wolves from the federal list of threatened and endangered species. Reissuance of Final Rule to Identify the N. Rocky Mountain Population of Gray Wolf as a Distinct Population Segment, 76 Fed. Reg. 25590-01 (May 5, 2011). Later that month, Oregon lethally removed two wolves in eastern Oregon under Oregon’s Plan. AR64, 12778. Later that year, two of the Plaintiffs here challenged Oregon’s Plan in Oregon court. AR19. They argued that Oregon’s Plan violated the Oregon Endangered Species Act and otherwise exceeded the Oregon wildlife agency’s statutory authority by allowing lethal removal of wolves. Pets.’ Mot.-Other-Stay Pending Judicial Review of Agency Rule, No. CA A 149672 (Or. Ct. App. Oct. 5, 2011), Ex. A. Following negotiations, in 2013, Oregon and the state-court plaintiffs settled and Oregon amended its administrative rules. AR19. Under the new rules, for example, while Oregon listed gray wolves as endangered, it increased from two to four the number of confirmed events of attacking or killing livestock before allowing lethal removal. Compare OAR 635-110- 0010(6)(a)(A)(i) (2011) with OAR 635-110-0010(7)(e); AR7862. Thus, two of Phases I and II. See AR7 (approving assistance only for activities “as defined by” Phases I and II). Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 19 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC 11 the Plaintiffs here participated closely with Oregon in defining those objectives and thereby ratified Oregon’s policy. II. USDA Wildlife Services concluded that assisting Oregon in implementing Oregon’s Plan would not cause significant impacts on the environment. After issuing a draft EA for public comment and other-agency comment, and after responding to the comments it received, USDA Wildlife Services issued the Decision in July 2014. AR1. It predicted the number of gray wolves in Oregon would increase for “the foreseeable future.” AR22. As those numbers increased, it expected that wolves would attack or kill more livestock. Id. Therefore, it decided to accept Oregon’s request for non-lethal and lethal assistance. AR22. USDA Wildlife Services premised its analysis on Oregon retaining absolute control over implementing Oregon’s Plan. AR39. USDA Wildlife Services acknowledged that it lacked “regulatory authority or latitude to implement other approaches” and lacked authority to require Oregon to take “alternative actions.” AR38. It decided to use lethal methods only “if ordered and directed by [Oregon] or as an agent to an [Oregon-]authorized permit holder” as Oregon’s Plan and OAR 635-110 allowed. AR47 (emphasis removed). USDA Wildlife Services analyzed three alternatives in detail. AR10-180. Under Alternative 1, the “no action” alternative, USDA Wildlife Services Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 20 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC 12 would only provide technical assistance to Oregon. See AR38-41. Under Alternative 2, it would assist Oregon only with non-lethal methods for wolf damage management. See AR41-46. Under Alternative 3, it would assist Oregon with both non-lethal and lethal methods. See AR46-52. USDA Wildlife Services also considered several other action alternatives, like birth control, eradication, and live-capture and relocation. AR52-54. It rejected those alternatives from detailed analysis because they exceeded the agency’s authority, because they contradicted Oregon’s Plan, because they interfered with Oregon and federal policy, or because they were not practical. Id. In the EA, USDA Wildlife Services explained that even Alternative 3, allowing non-lethal and lethal actions, “would result in a similar level of mortality as the No Action Alternative.” AR87. USDA Wildlife Services emphasized that, even if it did not participate in Oregon’s Plan, Oregon intended to act under Oregon’s Plan to remove wolves that chronically attack or kill livestock. AR39, 70, 87. Leaving Oregon to its own devices, however, would “divert [Oregon’s] resources from other wolf management actions that are necessary to ensure wolf conservation in Oregon.” AR70. USDA Wildlife Services ultimately adopted Alternative 3 and decided to use non-lethal and lethal methods to assist Oregon. AR5. Nonetheless, it expected that, under Oregon’s “cautious and conservative approach to Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 21 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC 13 reducing wolf depredation,” wolves would continue expanding in Oregon. AR88. Oregon and USDA Wildlife Services signed an Intergovernmental Agreement over gray wolf damage management. AR181, 187. Oregon and USDA Wildlife Services agreed that USDA Wildlife Services would act as Oregon’s agent, and Oregon would reimburse USDA Wildlife Services with funds the Oregon Legislature would appropriate. Id. III. Oregon has managed its gray wolves without USDA Wildlife Services. By the end of 2013, Oregon had confirmed sixty-four individual wolves in eight wolf packs in eastern Oregon. AR61. In March 2016 under Oregon’s Plan and OAR 635-110, Oregon lethally removed wolves in Wallowa County under Oregon’s Plan because those wolves were chronically attacking or killing livestock. Press Release, Oregon Dep’t of Fish and Wildlife, Depredations lead to lethal control for wolves in Wallowa County (Mar. 31, 2016), Ex. B. IV. The Confederated Tribes of the Umatilla Indian Reservation also exercise sovereign authority to manage gray wolves. USDA Wildlife Services remains open to responding to requests from the Confederated Tribes of the Umatilla Indian Reservation (the Tribes). AR1. Just as Oregon retains sovereign authority over wolves within its territory, so do the Tribes within theirs. See White Mountain Apache Tribe v. Bracker, 448 Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 22 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC 14 U.S. 136, 142 (1980). If or when the Tribes request assistance, USDA Wildlife Services intends to follow the same procedures on tribal lands as on non- tribal lands in Oregon. AR57, 47 (“mirror[ing] procedures and restrictions on non-tribal lands”). STANDARD OF REVIEW Cascadia brought this case under the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706. Compl. ¶¶ 1, 8, ECF No. 1. Under the APA’s “highly deferential” standard, courts “presum[e] the agency action to be valid . . . .” Nw. Ecosystem All. v. U.S. Fish & Wildlife Serv., 475 F.3d 1136, 1140 (9th Cir. 2007). A reviewing court may set aside an agency action only if a plaintiff carries its burden of establishing the action is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); George v. Bay Area Rapid Transit, 577 F.3d 1005, 1010-11 (9th Cir. 2009). Therefore, courts have one role in reviewing an agency’s NEPA analysis: to determine whether the agency “examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (State Farm) (quotations omitted). The agency’s decision “need only be a reasonable, not the best or most reasonable, decision.” River Runners for Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 23 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC 15 Wilderness v. Martin, 593 F.3d 1064, 1070 (9th Cir. 2010) (per curiam) (citations omitted). Indeed, “[a]n agency’s actions need not be perfect; [courts] may only set aside decisions that have no basis in fact, and not those with which [courts] disagree.” Forest Guardians v. U.S. Forest Serv., 329 F.3d 1089, 1099 (9th Cir. 2003). ARGUMENT I. Cascadia lacks the injury and the redressability necessary for Article III standing. Cascadia fails to demonstrate that USDA Wildlife Services’ Decision—and not Oregon’s program—are causing its alleged injury. Moreover, Cascadia fails to demonstrate that a favorable ruling could conceivably redress its injury: even if Cascadia prevailed here, and USDA Wildlife Services ultimately chose a different alternative, Oregon would remove the wolves that USDA Wildlife Services did not. AR16; AR313. Without Article III standing, this Court lacks jurisdiction. The United States Constitution limits courts’ jurisdiction to cases or controversies, and it requires plaintiffs to carry the burden of demonstrating standing. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). Article III requires a plaintiff to demonstrate (1) injury-in-fact, (2) a “causal connection between the[] injury and the conduct complained of,” and (3) that a favorable decision would likely redress that injury. Id. at 561. Procedural injuries do Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 24 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC 16 not qualify unless requiring that procedure could conceivably result in alleviating a concrete injury. Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009). References to a “relaxed” standard for causation and redressability refer to this test: a plaintiff need not demonstrate that requiring that procedure would certainly result in alleviating a concrete injury. See WildEarth Guardians v. USDA, 795 F.3d 1148, 1154 (9th Cir. 2015). Cascadia fails to establish how USDA Wildlife Services caused its alleged injuries or how the Court can redress this alleged injury when Oregon controls its gray wolf damage management program. See Nat’l Audubon Soc’y, Inc. v. Davis, 307 F.3d 835, 849, amended by, 312 F.3d 416 (9th Cir. 2002) (“when ‘causation . . . hinge[s] on response of the regulated (or regulable) third party to the government action,’ more particular facts are needed to show standing.”). Cascadia’s brief describes no particular injury. Pls.’ Mot. for Summ. J. and Mem. in Supp. 2-3 (Pls.’ Br.), ECF No. 20. Cascadia’s declarants allege injury from a decreased likelihood of seeing or hearing wolves if USDA Wildlife Services implements the Decision. See, e.g., Decl. of John Laughlin ¶¶ 7, 13, ECF No. 21; Decl. of Greg Dyson ¶¶ 11, 12, 15, ECF No. 22. Mr. Laughlin, for example, asserts his interest in the Imnaha Pack wolves in northeastern Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 25 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC 17 Oregon, but he has not seen nor heard these wolves. Laughlin Decl. ¶¶ 7, 13. In the end, USDA Wildlife Services will not cause Plaintiffs’ injury. Only Oregon may authorize “the lethal take of wolves under their management authority.” AR7. Only Oregon may determine under the OAR 635-110 standard whether a wolf is chronically attacking or killing wildlife. Id. Only Oregon may request USDA Wildlife Services to remove a gray wolf. Id. Cascadia’s claim that USDA Wildlife Services has caused Cascadia’s injury is incorrect. Cascadia’s alleged injury arises from Oregon’s Plan, and nothing prevents Cascadia from challenging that plan in state court as it did already. In Plaintiffs’ earlier, state-court challenge to Oregon’s Plan, declarants claimed Oregon caused their alleged injury. The declarants swore that “the killing of even a single wolf puts wolf recovery in Oregon in serious jeopardy, and it causes a direct injury to me.” Decl. of Walter Sykes ¶ 7, No. CA A 14972, Ex. A at 43.3 John Laughlin alleged that Oregon harmed him by issuing “kill permits” against gray wolves, and that a state-court invalidation of OAR 635-110 would remedy this harm. Decl. ¶ 13, No. CA A 14972, Ex. A 3 The Court may consider these extra-record declarations to analyze Article III standing. See Nw. Envtl. Def. Ctr. v. Bonneville Power Admin., 117 F.3d 1520, 1527-28 (9th Cir. 1997) (“We therefore consider the affidavits not in order to supplement the administrative record on the merits, but rather to determine whether petitioners can satisfy a prerequisite to this court’s jurisdiction.”). Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 26 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC 18 at 34. David Noah Greenwald declared that his “interests will be harmed if wolf recovery is stymied by the killing of wolves by [Oregon].” Decl. ¶ 5, No. CA A 14972. Ex. A at 38. Now, the same declarants assert instead that USDA Wildlife Services is causing their harm. Plaintiffs fail to explain their sudden switch. The alleged cause of irreparable injury—Oregon—has now become USDA Wildlife Services. In their new, federal case, Plaintiffs rely on new declarations from Mr. Sykes, Mr. Laughlin, and Mr. Greenwald, but the new declarations curiously omit their prior testimony that OAR 635-110 and the killing of wolves under Oregon’s Plan causes their harm. USDA Wildlife Services is only assisting Oregon in implementing Oregon’s Plan. Plaintiffs fail to establish that the Decision causes any injury. Cascadia also fails to demonstrate this Court can redress its alleged injury. “[T]he redressability requirement is not toothless in procedural injury cases.” Salmon Spawning & Recovery All. v. Gutierrez, 545 F.3d 1220, 1227 (9th Cir. 2008); Pritikin v. Dep’t of Energy, 254 F.3d 791, 799 (9th Cir. 2001) (explaining that a court can redress injury only if a new, possible decision on remand could produce “tangible, meaningful results in the real world”). The facts demonstrate that setting aside USDA Wildlife Services’ Decision would not increase any injury to Plaintiffs. Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 27 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC 19 Even if this Court set aside USDA Wildlife Services’ Decision, Oregon would still lethally remove the wolves it determined were chronically attacking or killing livestock. See AR6, 70, 92, 123-24. Thus, this Court cannot redress the declarants’ alleged harms. See Nuclear Info. and Res. Serv. v. Nuclear Regulatory Comm’n, 457 F.3d 941, 955 (9th Cir. 2006) (dismissing a NEPA case where setting aside one agency’s rule would not redress the asserted injury because another agency’s controlling rule would still cause it). This Court need not trust USDA Wildlife Services’ assertions that Oregon would likely take over lethal removal. Oregon has actually done so. In March 2016, for example, without USDA Wildlife Services’ assistance, Oregon lethally removed wolves in Wallowa County because those wolves were chronically attacking or killing livestock. Depredations lead to lethal control for wolves in Wallowa County, Ex. B. One declarant even complains of Oregon’s independent action. Decl. of Brooks Fahy ¶14, ECF No. 25. This evidence demonstrates that Oregon would remove gray wolves that chronically attacked or killed livestock even if USDA Wildlife Services did not. The Ninth Circuit has issued two cases on this issue. In the Oregon case, it examined USDA Wildlife Services’ assistance with Oregon’s state-run cougar management. Goat Ranchers v. Williams, 379 Fed. App’x 662 (9th Cir. Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 28 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC 20 2010) (unpublished). The Ninth Circuit concluded that, even if it set aside USDA Wildlife Services’ decision, Oregon would remove the cougars that USDA Wildlife Services would not. Id. at 664. The Ninth Circuit held that the plaintiff made “no showing that whatever small probability [plaintiffs] have of seeing a cougar in the wild will be reduced materially if the state does all rather than some of the cullings.” Id. Therefore, the court held it could not redress the plaintiffs’ alleged injury. Id. That analysis extends here because setting aside the Decision would not materially decrease the likelihood that the declarants would see or hear a gray wolf. In a second case, Nevada and USDA Wildlife Services “share[d] responsibility for predator damage control in Nevada.” WildEarth Guardians, 795 F.3d at 1152. The court found standing because Nevada had no “independent program,” so it was speculative to predict that “Nevada would replace everything” USDA Wildlife Services did. Id. at 1159. In contrast to Nevada in WildEarth Guardians, Oregon has its independent program and has actually removed wolves. This situation requires no speculation. Cascadia fails to demonstrate that if USDA Wildlife Services does not assist Oregon in removing wolves, any member will have a materially greater likelihood of seeing a wolf in the wild. This Court has no power to redress Cascadia’s alleged injury. Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 29 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC 21 Cascadia fails to establish that the Decision caused any alleged injury, or that a different Decision could conceivably redress its injury. Because it lacks Article III standing, this Court lacks jurisdiction. II. Congress did not waive sovereign immunity from this lawsuit because Cascadia has an independent and adequate state ground for challenging Oregon’s Plan. Several of the Plaintiffs here already sued Oregon in state court to stop Oregon’s Plan. Here, they are seeking to stop Oregon’s Plan through a backdoor by stopping USDA Wildlife Services’ Decision. The APA grants no jurisdiction for its claims because Cascadia can pursue further relief in state court. “When the United States consents to be sued, the terms of its waiver of sovereign immunity define the extent of the court’s jurisdiction.” United States v. Mottaz, 476 U.S. 834, 841 (1986). Congress waived sovereign immunity in the APA for various challenges to final agency actions, but not if “an adequate remedy” is “available elsewhere.” United States v. Park Place Assocs., Ltd., 563 F.3d 907, 929 (9th Cir. 2009). The APA allows review only if “there is no other adequate remedy in a court . . . .” 5 U.S.C. § 704. Courts construe waivers of sovereign immunity “strictly . . . in favor of the sovereign.” Lane v. Pena, 518 U.S. 187, 192 (1996). The APA does not extend this Court’s jurisdiction to this case because Cascadia can raise their concerns with Oregon’s Plan in state court. Cascadia Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 30 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC 22 cited ORS 183.400 in its lawsuit against Oregon. Pet’rs’ Mot.-Other-Stay, Ex. A. It could do so again. Courts recognize that a state-court remedy may be adequate and therefore strip APA jurisdiction over a purported federal action. “The existence of a state judicial forum for the review [of an action] forecloses the availability of the federal forum under the terms of the Administrative Procedure Act.” Shell Oil Co. v. Train, 585 F.2d 408, 414 (9th Cir. 1978) (interpreting 5 U.S.C. § 704). See also Garcia v. McCarthy, No. 13-cv-3939-WHO, 2014 WL 187386 at *11-*14 (N.D. Cal. Jan. 16, 2014) (concluding that a state law cause of action provided an adequate alternative remedy and that the APA provided no jurisdiction for an action against a federal agency); Coker v. Sullivan, 902 F.2d 84, 90 (D.C. Cir. 1990) (finding that the states were the “immediate cause” of the alleged injuries and that “the APA should not be interpreted to permit plaintiffs to bypass direct relief against the states”); El Rio Santa Cruz Neighborhood Health Ctr., Inc v. U.S. Dep’t of Health and Human Servs., 396 F.3d 1265, 1270-71 (D.C. Cir. 2005) (“APA review is unavailable where there is a private cause of action against a third party otherwise subject to agency regulation.”). Plaintiffs’ case is a thinly disguised challenge to Oregon’s lethal wolf removal. Plaintiffs’ standing declarants state that they oppose Oregon’s Plan, push to bar lethal wolf management, and opposed lethal removal of wolves Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 31 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC 23 earlier this year. See, e.g., Decl. of Brooks Fahy ¶¶ 14-15, ECF No. 25. Plaintiffs admit they seek to use this lawsuit to advance their preferences for wolf management. See Decl. of David Noah Greenwald ¶ 5, ECF No. 23. Cascadia has adequate remedies in another court, so the APA does not waive sovereign immunity. This Court lacks jurisdiction under the APA, and Rule 56 entitles Federal Defendants to summary judgment. III. NEPA required no analysis of Oregon’s Plan because Oregon makes the decisions and controls the program. Even if this Court had jurisdiction to determine whether USDA Wildlife Services complied with NEPA, NEPA does not apply. Cascadia claims the agency violated NEPA in failing to analyze “the effects of killing wolves on wolf populations and ecosystems.” Pls.’ Br. 15. But NEPA only applies to “major Federal actions.” 42 U.S.C. § 4332(C). USDA Wildlife Services took no major federal action for gray wolf damage management. It only decided to assist Oregon as Oregon’s agent. A. Oregon’s Plan does not qualify as a major federal action. Cascadia essentially seeks analysis of the impacts of Oregon’s Plan. See Pls.’ Br. 15-22. But Oregon’s Plan does not qualify as a major federal action for which NEPA requires any analysis. The United States Court of Appeals for the Ninth Circuit has made clear that “the plain language of NEPA limit[s] the act’s scope to major ‘federal’ actions.” Friends of the Earth, Inc. v. Coleman, 518 F.2d 323, 328 (9th Cir. Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 32 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC 24 1975). In particular, “[m]arginal federal action will not render otherwise local action federal.” Ka Makani ‘O Kohala Ohana Inc. v. Dep’t of Water Supply, 295 F.3d 955, 960 (9th Cir. 2002) (quotations and citation omitted). In Friends of the Earth, for example, the Ninth Circuit dismissed a NEPA claim when the state was acting and the United States was just assisting. There, the state was remodeling an airport and the United States had contributed less than ten percent of the remodeling costs. 518 F.2d at 329. The Ninth Circuit concluded that “the only relevant decision makers here are local officials.” Id. It dismissed the claim because a contrary conclusion “would let the tail wag the dog.” Id. The Ninth Circuit rejected the possibility that “as soon as federal funds were sought or awarded for related but distinct projects,” NEPA removes all “autonomy left . . . to state and local officials.” Id. USDA Wildlife Services has contributed about eight percent of the costs of implementing Oregon’s Plan. Because it does not cross the Ninth Circuit’s ten percent threshold, the Decision does not qualify as a major federal action. In 2012, Oregon did not reimburse USDA Wildlife Services for $26,502 that USDA Wildlife Services spent on wolf-related work in Oregon. AR12053. That same year, Oregon spent approximately $293,224. AR7845 ($586,447 / 2 years). Thus, USDA Wildlife Services paid unreimbursed costs of about eight percent of Oregon’s program ($26,502 / ($293,224 + $26,502)). Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 33 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC 25 Again, the next calendar year, USDA Wildlife Services spent net $25,591, and Oregon spent approximately $306,863, so USDA Wildlife Services spent approximately eight percent of the cost of Oregon’s Plan ($25,591 / ($306,863 + $25,591)).4 AR12065; AR7845; AR7864. Because USDA Wildlife Services spent less than ten percent of the total cost of Oregon’s Plan, the Decision does not qualify as a major federal action. NEPA does not apply. B. Oregon is the only legally relevant cause of killing wolves, so NEPA does not require USDA Wildlife Services to analyze those impacts. Moreover, NEPA requires no analysis of Oregon’s Plan because USDA Wildlife Services is not the legally relevant cause of removing wolves. To determine whether a project qualifies as a major federal action, courts analyze whether the non-federal officials would proceed without federal support and whether “the function and utility of the challenged projects is substantially less dependent on the projects for which federal” support has been or is being sought. Friends of the Earth, 518 F.2d at 329; Enos v. Marsh, 769 F.2d 1363, 1372 (9th Cir. 1985). To qualify as a major federal action, “a federal agency’s authority to influence must be more than the power to give 4 USDA Wildlife Services counts calendar years, but Oregon counts in two- year fiscal years that start on July 1. See AR12053; ORS 291.002(5). Calendar year 2013 spans one-quarter of Oregon’s July 2011-June 2013 biennium, and one-quarter of Oregon’s July 2013-June 2015 biennium. Therefore, Oregon spent approximately $306,863 in calendar year 2013. AR7845; AR7864 (1/4 * 586,447 + 1/4 * 641,004). Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 34 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC 26 nonbinding advice to the nonfederal actor[;] the federal agency must possess actual power to control the nonfederal activity.” Ka Makani, 295 F.3d at 961 (quotations omitted). Indeed, “courts must look to the underlying policies or legislative intent in order to draw a manageable line between those causal changes that may make an actor responsible for an effect and those that do not.” Metro. Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 774 n.7 (1983). NEPA draws that manageable line as “the usefulness of any new potential information to the decision making process,” and information is useful only if the agency has “power to act on [that] information . . . .” Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 767-68 (2004). In other words, “control” over the projects the agency could analyze. Id. at 772-73. If an agency has no control over a project, analysis of the project “would serve no purpose,” and “no rule of reason worthy of that title would require an agency” to analyze its effects. Id. at 767 (quotations omitted). An agency need not analyze environmental impacts in a NEPA document if the agency is not the “legally relevant cause” of those impacts. Id. at 769. USDA Wildlife Services is not causing the removal of gray wolves under the “reasonably close causal relationship between the environmental effect and the alleged cause” that NEPA requires. Id. at 767. It has “no decision making authority for where or when to remove problem wolves.” AR28. Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 35 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC 27 Instead, USDA Wildlife Services “can only decide if it will accept” a request “to remove problem wolves.” Id. But even if USDA Wildlife Services did not accept Oregon’s request to act, Oregon would act, anyway. AR87; AR313. Because Oregon exercises its sovereign police powers over wolves in eastern Oregon, and because Oregon controls whether and when to implement Oregon’s Plan, USDA Wildlife Services’ Decision does not cause Oregon’s Plan’s effects. The Decision does not qualify as a major federal action under NEPA. Cf. Younger v. Harris, 401 U.S. 37, 44 (1971) (describing “the notion of ‘comity,’ that is, a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways.”). NEPA did not require USDA Wildlife Services to analyze Oregon’s Plan. See Vill. of Los Ranchos v. Barnhart, 906 F.2d 1477, 1481-82 (10th Cir. 1990) (recognizing that even if an agency analyzed a project, the project may still not qualify as a major federal action). Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 36 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC 28 IV. USDA Wildlife Services took a hard look at the incremental impact of its actions on gray wolves. Cascadia contends that USDA Wildlife Services failed to take a hard look at the impacts of the Decision. Pls.’ Br. 15-22. To the contrary, the agency’s Administrative Record demonstrates the agency took a hard look. In the EA, USDA Wildlife Services sought to “anticipate[] all substantive environmental issues that are likely to exist where wolf damage management may occur.” AR27 (emphasis removed). In analyzing the Decision’s environmental impacts, it focused on the impacts on gray wolf populations, on non-target animals, on humaneness, on human safety, and on effectiveness. AR55. Cascadia claims the analysis of the first two impacts did not satisfy NEPA, but the record demonstrates that USDA Wildlife Services took hard looks at both. A. USDA Wildlife Services took a hard look at the impacts on gray wolf populations. In analyzing the impacts on gray wolf populations, USDA Wildlife Services identified a conflict between two human forces, and it analyzed the incremental effect the Decision would have against the backdrop of Oregon’s Plan. On one hand, USDA Wildlife Services recognized that people oppose removing wildlife based on “emotional or spiritual ties to the animals.” AR79. It acknowledged that those people “generally believe that individual animals Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 37 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC 29 have inherent value and should not be killed to meet the desires of man- kind.” Id. On the other hand, USDA Wildlife Services also found that human tolerance ultimately limits where wolves can survive. Id. People kill wolves illegally, and they generally do so when they “feel they have no legal access” for resolving their problems. AR63. Illegal killings of wolves are less effective at stopping wolves from attacking or killing livestock because private individuals lack the training to target the specific wolves that attack or kill livestock. AR64. To reconcile these views, USDA Wildlife Services considered the impacts on gray wolf populations. It foresaw numerous circumstances leading them to increase in Oregon. AR67. First, gray wolf populations in other areas like Canada, Montana, Wyoming, and Idaho will “continue to produce a large number of ‘surplus’ wolves” that may disperse. Id. Second, wolves have “high reproductive capabilities.” Id. Third, wolves have abundant prey in eastern Oregon, like deer, elk, bighorn sheep, and mountain goats. AR68. Fourth, the Oregon wolf population has grown after returning to Oregon. AR70. USDA Wildlife Services considered its proposed action in the context of Oregon’s Plan. It described Oregon as taking “a cautious and conservative approach to managing wolf” livestock attacks and killings. Id. After considering Oregon’s approach, “the abundant source population in Idaho,” Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 38 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC 30 and the sufficient suitable habitat and prey availability in Oregon,” USDA Wildlife Services concluded that “wolves will continue to expand in range and in number within the foreseeable future . . . .” AR70-71. In analyzing its proposed action, USDA Wildlife Services concluded that, although assisting Oregon with both non-lethal and lethal removal “may expedite removals,” it would not “likely . . . result in more wolves removed since [Oregon] and [the Tribes] would respond” if USDA Wildlife Services could not. AR87; AR123-125. Therefore, USDA Wildlife Services found that its proposed action would not have any significant, incremental, direct effect. Id.; AR8. The APA entitles it to deference in that prediction. See Nat’l Parks & Conservation Ass’n v. DOT, 222 F.3d 677, 682 n.5 (9th Cir. 2000) (“[P]redictions about the future are, of necessity, speculative,” and courts defer “to the agency’s own determination about the likely reliability of those prognostications.”). For the same reason, USDA Wildlife Services found no significant, cumulative effects. AR87; AR8. Cascadia argues that USDA Wildlife Services failed to analyze the impacts of removing large predators from the ecosystem and food chain. Pls.’ Br. 16- 17. USDA Wildlife Services concluded that “the proposal is not likely to result in a net decrease in wolves so either way,” so it would not significantly impact any ecosystem. AR176. That analysis satisfies NEPA. Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 39 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC 31 Thus, USDA Wildlife Services’ Administrative Record demonstrates that the agency took a hard look at the impacts on gray wolf populations and related ecosystems from assisting Oregon, and it reasonably found no significant impacts. B. The APA requires the Court to defer to USDA Wildlife Services’ conclusion that, even if it did not assist Oregon, Oregon would lethally remove wolves. Cascadia argues that “there is considerable doubt whether [Oregon] . . . can perform all of the killing and non-lethal management” that USDA Wildlife Services agreed to perform. Pls.’ Br. 20-21. Cascadia’s argument does not demonstrate any arbitrary or capricious fact-finding. Cascadia is just speculating that Oregon would not implement its plan without USDA Wildlife Services. Id. Its speculation does not carry its burden of demonstrating arbitrary and capricious decision-making. Predicting a hypothetical future is not “a mathematical problem to which there could only be one correct answer.” See Interstate Commerce Comm’n v. Jersey City, 322 U.S. 503, 512-13 (1944). Here, USDA Wildlife Services relied on Oregon’s stated intention to lethally remove wolves if USDA Wildlife Services did not. AR313; AR79. It exercised its judgment in predicting that Oregon would be able to do so. AR79. The APA entitles it to deference in that factual prediction. See Jersey City, 322 U.S. at 512-13; Nat’l Parks & Conservation, 222 F.3d at 682 n.5. “Neither [NEPA] nor its legislative history Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 40 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC 32 contemplates that a court should substitute its judgment for that of the agency as to the environmental consequences of its actions.” Vt. Yankee Nuclear Power Corp v. NRDC, 435 U.S. 519, 555 (1978); State Farm, 463 U.S. at 30. Cascadia quotes the Ninth Circuit’s statements in WildEarth Guardians for the proposition that “[t]he notion that Nevada would replace everything [USDA Wildlife Services] currently does is therefore speculative at best.” 795 F.3d at 1158-59 (quoted by Pls.’ Br. 21). The WildEarth Guardians court applied different law to different operative facts. On the law, that court analyzed Article III standing, so it did not apply the APA arbitrary or capricious standard of review. See id. at 1154. And in contrast to these facts, in WildEarth Guardians, Nevada lacked an “independent program” for predator damage management and relied on USDA Wildlife Services for “significant funding, staffing, and supervision.” 795 F.3d at 1151-53. The court found that, without USDA Wildlife Services, Nevada may have had difficulty managing predator damage. Id. Here, in contrast, USDA Wildlife Services made a factual conclusion that Oregon would implement its plan without USDA Wildlife Services and would use the same methods. AR79, 91. Applying the correct legal standard to the operative facts here compels a different outcome. Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 41 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC 33 Cascadia argues that “the record states” that Oregon and the Tribes “may kill fewer wolves, or [may] have less capacity to kill wolves, or [may] do so in a different manner than [USDA] Wildlife Services . . . .” Pls.’ Br. 21-22. Cascadia is wrong. USDA Wildlife Services relied on its expertise in concluding that Oregon “would continue to implement [Oregon’s Plan], including lethal take, and the tribes would implement their management responsibilities without additional assistance from” USDA Wildlife Services. AR6; AR38-39, 42, 83. Oregon and the Tribes confirmed that they would do so. AR123-26. Thus, USDA Wildlife Services “explain[ed] the evidence which is available, and . . . offer[ed] a rational connection between the facts found and the choice made.” State Farm, 463 U.S. at 52 (quotations omitted). Rule 56 and the APA entitle Federal Defendants to summary judgment. See id. C. USDA Wildlife Services took a hard look at the impacts on non-target species. Cascadia argues that NEPA required USDA Wildlife Services to analyze in more detail the Decision’s indirect impacts on non-target species. Pls.’ Br. 23-26. To the contrary, USDA Wildlife Services took a hard look at the Decision’s incremental impact on non-target species. Cascadia focuses on a letter from the American Society of Mammalogists for the proposition that USDA Wildlife Services unintentionally kills non- Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 42 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC 34 target species in taking other actions across the United States. Pls.’ Br. 24- 25. That letter’s general analysis does not apply to this specific situation. The agency took a hard look the impacts on non-target species. USDA Wildlife Services explained that it builds into its wildlife damage management activities “standard operating procedures” for “minimiz[ing] the potential for negative effects,” which includes potential harm to “non-target wildlife.” AR50. It uses pan-tension devices, so it can set foot/leg snares and foot-hold traps at high enough tension that smaller animals will not trigger them. Id. It releases non-target animals immediately at the site of capture, unless it determines those non-target animals will not survive, and it coordinates with Oregon and Fish and Wildlife, so it can know where those other agencies have spotted threatened and endangered species. Id. USDA Wildlife Services expected that it could use those pan-tension devices to reduce substantially the number of animals smaller than wolves, like coyotes and foxes, that foot-hold traps or foot snares would otherwise catch. AR72. USDA Wildlife Services recognized that even if it inadvertently caught coyotes or foxes, those species are abundant and widespread, and some low level of capture would have “negligible” impacts on their populations. Id. For animals larger than a wolf, like bears or cougars, USDA Wildlife Services found that, in Idaho, it has never captured bears or cougars in traps Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 43 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC 35 set for wolves. Id. Here, it found that catching those animals would be similarly unlikely, and even if it did, they are abundant, as well. Id. Moreover, it expects that it and Oregon could likely use their experience, training, and immobilization drugs to release unharmed any cougar or bear caught in a trap. Id. USDA Wildlife Services found Canada lynx so rare, with no known populations occurring in Oregon, that it found any possible impact to Canada lynx “extremely unlikely.” AR72-73; AR298-99. In the end, USDA Wildlife Services concluded that it expected to impact a similar number of non-target animals as Oregon would impact if USDA Wildlife did not assist Oregon. AR88. See Pub. Citizen, 541 U.S. at 769 (“It would not, therefore, satisfy NEPA’s ‘rule of reason’ to require an agency to prepare a full EIS due to the environmental impact of an action it could not refuse to perform.”). Cascadia argues that a USDA Wildlife Services’ leg-hold trap caught a male wolf in 2012, and NEPA requires the agency to quantify environmental impacts like that. Pls.’ Br. 25-26. USDA Wildlife Services did more than did make “[g]eneral statements about possible effects and some risk.” See Neighbors of Cuddy Mountain v. U.S. Forest Serv., 137 F.3d 1372, 1380 (9th Cir. 1998) (quotations omitted). It provided quantified data by predicting Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 44 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC 36 “negligible” or zero additional, incremental impacts. AR50, 72, 88. Thus, it satisfied NEPA. Cascadia’s dispute over the facts fails to carry its burden of demonstrating an arbitrary or capricious factual finding. The APA requires the Court to uphold the agency’s finding because it “based [that finding] on a consideration of the relevant factors,” and USDA Wildlife Services’ Administrative Record reveals no “clear error of judgment.” See Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 378 (1989) (quotations omitted). V. USDA Wildlife Services reasonably concluded that gray wolf management activities will not significantly impact the environment. In reaching its Decision, USDA Wildlife Services concluded that assisting Oregon would not “significantly affect[] . . . the quality of the human environment.” See AR8. But because USDA Wildlife Services took a hard look at the impacts and came to a factual conclusion on significance within its expertise, the APA entitles it to deference in that conclusion. As the Ninth Circuit has recognized, courts “conduct a particularly deferential review of an agency’s predictive judgments about areas that are within the agency’s field of discretion and expertise . . . as long as they are reasonable.” Lands Council v. McNair, 537 F.3d 981, 993 (9th Cir. 2008) (en banc) (quotations omitted), overruled on other grounds by Winter v. NRDC, 555 U.S. 7 (2008). Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 45 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC 37 Cascadia argues that USDA Wildlife Services irrationally concluded that the Decision would not cause significant impacts because several “significance factors” in the NEPA regulations demonstrate that the Decision would cause a significant impact, and NEPA therefore required USDA Wildlife Services to complete an EIS. Pls.’ Br. 27-35. But Cascadia fails to carry its burden of demonstrating that USDA Wildlife Services reached an arbitrary or capricious factual determination on significance. NEPA required no EIS. A NEPA significance determination reflects “a classic example of a factual dispute the resolution of which implicates substantial agency expertise.” Marsh, 490 U.S. at 376. Courts defer to agencies’ significance determinations because “determining whether significance exists inherently involves some sort of a subjective judgment call.” Spiller v. White, 352 F.3d 235, 244 n.5 (5th Cir. 2003). Throughout its NEPA significance arguments, Cascadia invites this Court to treat “significance” as a legal standard, isolates some significance factors, and claims that the Court can replace the agency’s factual findings with its own. Cascadia’s line of argument has no legal force. CEQ did not intend the significance factors to “determine by themselves whether an impact is significant;” rather, it simply listed “relevant factors” for agencies to “consider[] in gauging whether an impact is ‘intense’ and, Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 46 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC 38 therefore, significant.” Spiller, 352 F.3d at 243. NEPA does not require agencies to address them factor-by-factor. Id. See San Luis & Delta-Mendota Water Auth. v. Locke, 776 F.3d 971, 1003 (9th Cir. 2014) (recognizing that it overturns district courts that require agencies to “document [their] compliance” with a statute by analyzing every factor). Here, USDA Wildlife Services reached factual conclusions on insignificance. In the end, Cascadia’s arguments contravene fundamental administrative law principles. The APA does not authorize this Court to overturn agencies’ factual determinations unless Cascadia demonstrates those determinations were arbitrary and capricious. Marsh, 490 U.S. at 376. Cascadia has not done so. A. USDA Wildlife Services reasonably concluded that the environmental effects of assisting Oregon would not cause significant impacts. USDA Wildlife Services rationally found its Decision would not cause significant impacts, and therefore NEPA required no EIS. 40 C.F.R. §§ 1508.27(b)(1) and (b)(9). AR8-9. USDA Wildlife Services accounted for the possibility of both beneficial and adverse effects, and for cumulative effects. As shown above, the EA took a hard look at the impacts of the Decision. AR61-93. Based on those facts and circumstances, USDA Wildlife Services determined that assisting Oregon would present “no significant cumulative effects . . . .” AR9. See also AR62-66, 83, 87-88. Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 47 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC 39 Cascadia argues that NEPA required USDA Wildlife Services to issue an EIS because, under the ESA, it concluded that assisting Oregon “may affect” gray wolves and the Canada lynx. Pls.’ Br. 28. Cascadia is wrong on the law. The Ninth Circuit has “decline[d] to interpret NEPA as requiring the preparation of an EIS any time that a federal agency discloses adverse impacts on wildlife species or their habitat . . . .” Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1240 (9th Cir. 2005). Deciding that the Decision may affect gray wolves or Canada lynx did not demonstrate a significant impact. See id. Putting the ESA aside, Cascadia argues that the Decision will significantly impact gray wolves. Pls.’ Br. 28. But Cascadia’s argument overlooks Oregon’s role. USDA Wildlife Services will only act at Oregon’s request. See, e.g., AR7. It found that assisting Oregon would have only a “negligible” effect on the wolf populations because Oregon would lethally remove any gray wolves that USDA Wildlife Services does not. AR206. Moreover, USDA Wildlife Services found, and Fish and Wildlife concurred, that the gray wolf population in eastern Oregon will “continue to grow rapidly, easily overcoming the small loss of individuals.” Id. It did not act arbitrarily or capriciously by concluding that the Decision would not significantly impact gray wolves. Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 48 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC 40 Cascadia argues that USDA Wildlife Services’ assistance to Oregon may have significant beneficial effects on social tolerance and wolf recovery. Pls.’ Br. 28. Cascadia is just disagreeing with USDA Wildlife Services’ factual finding on significance. It fails to demonstrate a significant impact. Even “[i]f the evidence is susceptible to more than one rational interpretation, the court may not substitute its judgment for that of the agency.” Snoqualmie Indian Tribe v. Fed. Energy Regulatory Comm’n, 545 F.3d 1207, 1212 (9th Cir. 2008). USDA Wildlife Services reached a reasonable conclusion, based on the evidence before it, that the Decision would not cause significant impacts. B. Assisting Oregon with its Plan will not significantly affect public safety. Cascadia argues that the Decision will significantly impact public safety because helicopters could crash while removing gray wolves. Pls.’ Br. 29. USDA Wildlife Services’ Administrative Record demonstrates that the agency rationally concluded that it would not cause a significant impact. Cascadia lacks standing for this claim because it fails to identify how this alleged impact could injure its members any differently from any other member of the public. No one has Article III standing to raise “generalized grievance[s]” when “the impact on plaintiff is plainly undifferentiated and common to all members of the public.” Lujan, 504 U.S. at 575 (quotations and alteration omitted). Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 49 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC 41 Further, Cascadia’s complaint does not raise public safety issues, so Cascadia has no right to raise this issue now. Compl. ¶ 57, ECF No. 1. See Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1080 (9th Cir. 2008) (en banc) (“[W]here, as here, the complaint does not include the necessary factual allegations to state a claim, raising such claim in a summary judgment motion is insufficient to present the claim to the district court.”); Wasco Prods., Inc. v. Southwall Techs., Inc., 435 F.3d 989, 992 (9th Cir. 2006). Case law also forecloses Cascadia’s argument. Cascadia claims that USDA Wildlife Services’ planes and pilots bring a higher risk for accidents. Pls.’ Br. 29. But NEPA does not consider that risk an environmental effect. “[A] risk of an accident is not an effect on the physical environment. A risk is, by definition, unrealized in the physical world.” Metro. Edison, 460 U.S. at 775. See also Bicycle Trails Council v. Babbitt, 82 F.3d 1445, 1466-67 (9th Cir. 1996), as amended (June 17, 1996). And even if Cascadia could advance this claim, USDA Wildlife Services’ Administrative Record demonstrates that it rationally concluded that assisting Oregon with implementing Oregon’s Plan would not cause significant public safety impacts. It concluded that the accident rates for its pilots and planes does not significantly differ from general aviation rates, and that the risk of harming any member of the public is “exceedingly low.” AR89. USDA Wildlife Services provided a rational basis for its finding that the Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 50 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC 42 Decision would cause no significant impact on public safety. Rule 56 and the APA entitle Federal Defendants to summary judgment. See State Farm, 463 U.S. at 52. C. Unique characteristics of the geographic area did not mandate an EIS. Cascadia argues that the Decision will impact areas with “‘unique characteristics” like areas near park lands, farm lands, and ecologically critical areas. Pls.’ Br. 30. In assessing significance, the NEPA regulations suggest an agency consider “[u]nique characteristics of the geographic area such as proximity to historic or cultural resources, park lands, prime farmlands, wetlands, wild and scenic rivers, or ecologically critical areas.” 40 C.F.R. § 1508.27(b)(3). USDA Wildlife Services analyzed that possibility and found no significant impacts. As a threshold matter, Cascadia did not assert in its comments that the Decision would impact “unique characteristics” of lands. They waived this argument. The Supreme Court has cautioned courts against “toppl[ing] over administrative decisions unless the administrative body not only has erred but has erred against objection made at the time appropriate under its practice.” United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37 (1952) (emphasis added); Pub. Citizen, 541 U.S. at 764. Even if Cascadia could raise this claim, it fails to identify any significant impact. USDA Wildlife Services is not removing wolves in National Parks or Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 51 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC 43 in National Monuments. AR57-58. It acknowledged a “slight temporary effect on users . . . by reducing the opportunity to view or hear a wolf that may have otherwise traveled into the protected area,” but it concluded that effect would be “insignificant because wolf populations would . . . continue to grow.” Id. USDA Wildlife Services recognized that it may remove wolves from wilderness areas, from wilderness study areas, or from lands under wilderness review. Id. Some livestock still grazes on historic grazing allotments within those areas. Id. But USDA Wildlife Services would only act with the Forest Service’s or Bureau of Land Management’s approval, and only if “removing the offending animal would not diminish wilderness value.” Id. USDA Wildlife Services reasonably concluded the Decision “would have almost no effect on wilderness characteristics or management objectives.” Id. Cascadia quotes the Forest Service’s comment stating it “do[es] not believe that the proposed wolf removal activities are consistent with [Forest Service] wilderness management policy.” AR550 (quoted by Pls.’ Br. 30). The Forest Service, however, was commenting on language in a March 2012, draft EA. AR1314-15. The Final EA resolves the Forest Service’s concerns. USDA Wildlife Services confirmed that it would only act with Forest Service approval, so it could ensure its actions would neither “conflict” with Forest Service policy nor “impair the wilderness designation.” AR57-58. Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 52 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC 44 USDA Wildlife Services considered the relevant facts and found that assisting Oregon would not significantly affect unique characteristics of lands. Id. The APA entitles Federal Defendants to summary judgment. See Presidio Golf Club v. Nat’l Park Serv., 155 F.3d 1153, 1162 (9th Cir. 1998) (upholding a finding that a project near a historic resource did not cause any significant impact). D. USDA Wildlife Services reasonably concluded that the Decision would not cause highly controversial, highly uncertain environmental effects, or unique or unknown risks. Cascadia argues that “significant controversy exists as to the efficacy and effects of killing wolves to reduce livestock depredation, and highly uncertain effects are anticipated as a result of implementation of the [Decision].” Pls.’ Br. 31-32. As a factual conclusion, USDA Wildlife Services rejected those possible impacts. It found that assisting Oregon would not likely cause highly controversial or highly uncertain environmental effects. AR8-9. The APA entitles it to deference in this factual conclusion. The NEPA regulations suggest that, in determining significance, agencies consider the “degree to which the effects on the quality of the human environment are likely to be highly controversial” and the “degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks.” 40 C.F.R. § 1508.27(b)(4), (5). Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 53 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC 45 Cascadia argues that “killing wolves can have serious negative consequences, and little practical effect,” and it contends that “[m]ultiple commenters . . . questioned Wildlife Services[’] conclusion that killing wolves to reduce livestock depredations as being contrary to the scientific literature.” Pls.’ Br. 32. Cascadia is using the wrong metric. The phrase “highly controversial” in the NEPA regulations does not refer to opposition to a project. If it did, “opposition, and not the reasoned analysis set forth in an [EA], would determine whether an [EIS] would have to be prepared. The outcome would be governed by a ‘heckler’s veto.’” North Carolina v. FAA, 957 F.2d 1125, 1133-34 (4th Cir. 1992) (quotations and citations omitted). Instead, a controversy requires a “substantial dispute . . . [about the] size, nature, or effect of a major Federal action.” Greenpeace Action v. Franklin, 14 F.3d 1324, 1333 (9th Cir. 1993). USDA Wildlife Services recognized that some members of the public oppose aspects of the Decision, such as wolf removal, but “the methods and impacts are not controversial among experts.” AR8. USDA Wildlife Services explained that some professional wildlife biologists support removing wolves that prey on livestock. AR75. It relied on surveys that showed increased tolerance to gray wolves if governments remove wolves that kill livestock or pets. AR75-77. USDA Wildlife Services acknowledged that some groups would “likely . . . oppose[] . . . any agency control of wolves, regardless of the beneficial role it plays in the conservation Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 54 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC 46 of wolves.” AR90. But that opposition does not establish any controversy on the size, nature, or effect of the Decision. See Greenpeace Action, 14 F.3d at 1335 (“If this type of disagreement were all that was necessary to mandate an EIS, the environmental assessment process would be meaningless.”). Cascadia seeks to generate scientific controversy by quoting Washington’s Wolf Conservation and Management Plan (December 2011) (Washington’s Wolf Plan). Pls.’ Br. 32-33; ECF No. 20-2. This Court cannot consider that document because it is not in USDA Wildlife Services’ Administrative Record. 5 U.S.C. § 706; Rybachek v. EPA, 904 F.2d 1276, 1296 n.25 (9th Cir. 1990) (excluding extra-record evidence because “[t]he [agency] did not rely on the information contained in the [plaintiff’s] proffered documents . . . .”). This Court’s case management order even provided Cascadia an opportunity to seek to supplement the record, ECF No. 16, but Cascadia did not do so. It may not ignore this Court’s order and rely on that extra-record document. Even if the Court could consider Washington’s Wolf Plan, it presents no controversy about the size, nature, or effect of the Decision. Cascadia quotes it as recognizing uncertainty “whether the wolves killed were the offending animals.” Pls.’ Br. 33. But the Decision recognizes a particular action may not always remove the correct wolf because Oregon need only “reasonably believe[] . . . the same wolf or wolves” chronically attacked or killed livestock. AR118. USDA Wildlife Services knew about that effect. Cascadia has not Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 55 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC 47 demonstrated that USDA Wildlife Services arbitrarily or capriciously concluded that no controversy exists on the Decision’s size, nature, or effect.5 USDA Wildlife Services is not experimenting with new science by assisting Oregon with Oregon’s Plan. Along with non-lethal methods, according to Oregon’s Plan, lethal methods are “consistent with the conservation of wolves” and are “expected to promote delisting efforts.” AR7612. Therefore, even if the Court could weigh Washington’s Wolf Plan as opposing science, it would not advance Cascadia’s argument. USDA Wildlife Services has reached the factual finding that no significant controversy exists on the size, nature, or effect. The APA entitles it to deference in that factual finding. See Marsh, 490 U.S. at 378 (recognizing that the APA gives agencies discretion to rely on their own experts to decide controversies). Cascadia argues that the Decision would cause unique or unknown impacts because USDA Wildlife Services “routinely kills non-target animal when it seeks to kill target animals.” Pls.’ Br. 33-34. Cascadia is wrong on the facts. The agency’s Administrative Record shows that aerial and ground shooting are “virtually 100% selective for target species,” because the target 5 Moreover, Cascadia mischaracterizes the Washington Wolf Plan. It fails to acknowledge that the plan recognizes that “lethal control is a necessary tool for reducing wolf depredation on livestock.” ECF No. 20-3 at 86. Cascadia also fails to acknowledge key aspects of its analysis. It recognizes that lethal removal “is performed to remove problem animals that jeopardize public tolerance for overall wolf recovery.” Id. at 85, 86. Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 56 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC 48 animal is “observed and verified” by trained personnel prior to shooting. AR72. The EA also explained, for a variety of wildlife species, why wolf traps and snares would not likely significantly impact non-target species. AR72-73, 88, 92. In addition, USDA Wildlife Services relied on its standard operating procedures that include precautionary measures for protecting non-target wildlife. AR50-51. The agency’s candid discussion demonstrates it took a hard look, and it reasonably found no unique or unknown circumstances. See Native Ecosystems Council, 428 F.3d at 1240. Cascadia fails to demonstrate that USDA Wildlife Services acted arbitrarily or capriciously in concluding that the Decision does not cause highly controversial impacts, does not cause highly uncertain impacts, and does not present unique or unknown risks. The APA entitles Federal Defendants to summary judgment. E. USDA Wildlife Services rationally concluded that assisting Oregon would no significantly impact endangered or threatened species. Cascadia argues that, under the Decision, USDA Wildlife Services may affect gray wolves and Canada lynx, and therefore the Decision causes a significant environmental impact. Pls.’ Br. 34-35. The NEPA regulations identify as a possibly relevant significance factor, “[t]he degree to which the action may adversely affect an endangered or threatened species or its Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 57 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC 49 habitat that has been determined to be critical under the [ESA]. 40 C.F.R. § 1508.27(b)(9). Again, Cascadia is focusing on the wrong metric. Cascadia argues that removing gray wolves may incidentally impact an individual Canada lynx. But courts focus on the “degree of adverse effect on a species, not the impact on individuals of that species.” Envtl. Prot. Info. Ctr. v. U.S. Forest Serv., 451 F.3d 1005, 1010 (9th Cir. 2006). See Bark v. Northrup, No. 3:13-cv-828-AA, 2016 WL 1181672 at *15 (D. Or. March 25. 2016). As shown earlier, gray wolves are reproducing quickly enough that removing a few will not impact the species. See AR63-71, 87. USDA Wildlife Services found Canada lynx so rare that it did not expect the Decision to impact any individuals. AR72-73; AR289-90. USDA Wildlife Services reasonably concluded that the Decision would not cause significant impacts on gray wolves or Canada lynx. CONCLUSION For the foregoing reasons, Rule 56 and the APA entitle Federal Defendants to summary judgment. Respectfully submitted, October 31, 2016, BILLY J. WILLIAMS, OSB # 901366 United States Attorney District of Oregon SEAN E. MARTIN, OSB # 054338 Assistant United States Attorney Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 58 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC 50 1000 SW Third Ave., Suite 600 Portland, Oregon 97204-2902 sean.martin@usdoj.gov (503) 727-1010 JOHN C. CRUDEN Assistant Attorney General Environment and Natural Resources Division /s/ Jared S. Pettinato JARED S. PETTINATO, MT Bar # 7434 Trial Attorney Natural Resources Section Environment and Natural Resources Division United States Department of Justice P.O. Box 7611 Washington, D.C. 20044-7611 Jared.Pettinato@usdoj.gov (202) 305-0203 (202) 353-0506 (fax) Attorneys for Defendants Of Counsel: Tracy McGowan Leah Battaglioli Tracey Manoff United States Department of Agriculture Office of the General Counsel Washington, D.C. 20250 Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 59 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC 51 CERTIFICATE OF SERVICE I hereby certify that on October 31, 2016, I served the foregoing electronically via the CM/ECF system on the following counsel: John R. Mellgren (OSB # 114620) Western Environmental Law Center 1216 Lincoln Street Eugene, Oregon 97405 Ph. (541) 359-0990 Fax (541) 485-2457 mellgren@westernlaw.org Attorney for Plaintiffs Nicholas S. Cady (OSB # 114363) Cascadia Wildlands P.O. Box 10455 Eugene, Oregon 97440 Ph: (541) 434-1463 Fax: (541) 434-6494 nick@cascwild.org Attorney for Plaintiff Cascadia Wildlands Signed October 31, 2016, /s/ Jared S. Pettinato Trial Attorney Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 60 of 61 Fed. Defs.’ Cross-Mot. For Summ. J. and Br. in Supp. Cascadia Wildlands v. Williams, 6:16-CV-00177-MC 52 CERTIFICATE OF COMPLIANCE The preceding document complies with the applicable word-count limitation under LR 7-2(b), because it contains 10,884 words, including headings, footnotes, and quotations, but excluding the caption, table of contents, table of authorities, signature block, exhibits, and any certificates of counsel. Dated this 31 October 2016. /s/ Jared S. Pettinato Trial Attorney Case 6:16-cv-00177-MC Document 27 Filed 10/31/16 Page 61 of 61 EXHIBIT A Case 6:16-cv-00177-MC Document 27-1 Filed 10/31/16 Page 1 of 51 Verified ~cb rrect copy of original made under court administrator's direction 10/5/2011 ~ `. 4 . '~ • ~ I L APPELL.ATE COURT AL1MSN1STRATOR 0 C'f 0 5 2~: 11 . SUPREME COURT COURT OF APPEALS IN THE COURT OF APPEALS OF THE STATE OF OREGON CASCADIA WILDLANDS an Oregon non-profit corporation; CENTER FOR - BIOLOGICAL DIVERSITY, a New Mexico non-profit corporation; and OREGON WILD, an Oregon non-profit corporation, Petitioners, vs. OREGON FISH AND WILDLIFE COMMISSION, an agency of the State of Oregon; and OREGON DEPARTMENT OF FISH AND WILDLIFE, an agency of the State of Oregon, , CA A JTq(o -7 Z PETITIONERS' MOTION-- OTHER - STAY PENDING JUDICIAL REVIEW OF AGENCY RULE EMERGENCY MOTION UNDER ORAP 7.35 Respondents. MOTION Petitioners hereby move the Court for a stay of the implementation of OAR 635-110-0010(6)-(8). Petitioners further request, pursuant to ORAP 7.05(3) that the Court grant immediate and temporary relief pending the filing of a response to this motion. Respondent Oregon Department of Fish and Wildlife ("ODFW") is in the process of using the challenged rule to kill two endangered gray wolves in northeastern Oregon, out of a statewide population of only fourteen. These wolves may be killed at any moment, and such action would cause irreparable injury to the targeted wolves, to the fledgling and imperiled statewide population, and to Petitioners' substantial interests in the targeted wolves and in the health and recovery PETITIONERS' MOTION—OTHER - STAY PENDING JUDICIAL REVIEW OF AGENCY RULE Page 1 of 22 C se 6:16- v-00177-MC Document 27-1 Filed 10/31/16 Page 2 of 51 ' r • • of wolves in the state. This motion is supported by the Points and Authorities below , and by the attached declarations and exhibits. Pursuant to ORAP 7.35(2), Respondents have been notified of this motion, and will be served with copies of all related documents within an hour of filing with the Court. DATED this 5 th day of October, 2011. aniel R. Kruse (OSB # 064023) 130 South Park Street Eugene, Oregon 97401 Phone: (541) 870-0605 Fax: (541) 484-4996 dkruse@cldc.org Timothy J. Ream (OSB # 106538) 351 California Street, Suite 600 San Francisco, CA 94104 Phone: (415) 436-9682 ext.315 Fax: (415) 436-9683 _ tream@biologicaldiversity.org Attorneys for Petitioners PETITIONERS' MOTION—OTHER - STAY PENDING JUDICIAL REVIEW OF AGENCY RULE Page 2 of 22 Case 6:16-cv-00177-MC Document 27-1 Filed 10/31/16 Page 3 of 51 ,- .` • • POINTS AND AUTHORITIES I. INTRODUCTION There are fourteen known wolves in the entire State of Oregon. Klavins Decl., ¶ 8. According to Oregon's Wolf Conservation and Management Plan, which was developed and approved by the Respondents, there need to be four breeding pairs of wolves in eastern Oregon for at least three consecutive years to ensure that "the natural reproductive potential of the wolf population is not in danger of failure" and that "a naturally self-sustaining population of wolves would continue to exist in Oregon." Petitioners' Exhibit I at 4. The Plan further establishes a goal of seven breeding pairs three years in a row "to ensure maintenance of the wolf population." Id. A breeding pair is a pack of wolves with an adult male and an adult female with at least two pups surviving to the end of December. Id. at 3. Only one pack of wolves in Oregon was confirmed to have two or more pups in 2011. Laughlin Decl., ¶ 5. On September 22, 2011, ODFW determined that wolves in the Imnaha Pack were involved in the death of a calf on private land near Joseph, Oregon. Laughlin Decl., ¶ 6. The next day, ODFW announced that it was going to kill two wolves from the Imnaha pack, including the alpha male, under the authority of OAR 635-110- 0010(6)-(8). Id. Hunting for the wolves is currently underway. Id. If successful, this action will reduce the Ininaha pack to only two non-breeding wolves (a mother and pup) and the number of known wolves in the entire state to only twelve. Id. PETITIONERS' MOTION—OTHER - STAY PENDING JUDICIAL REVIEW OF AGENCY RULE Page 3 of 22 Case 6:16-cv-00177-MC Document 27-1 Filed 10/31/16 Page 4 of 51 • • Petitioners seek a stay of ODFW's action and any further enforcement of OAR 635-110-0010(6)-(8) to prevent irreparable injury from occurring to the targeted wolves, to Oregon's fledgling and imperiled wolf population, and to Petitioners' substantial interests in the health and recovery of wolves in the state. OAR 635-110- 0010(6)-(8), which allows ODFW to kill wolves in response to livestock depredation, violates Oregon's Endangered Species Act ("ESA"), ORS 498.026(1), exceeds the statutory authority given to the agency to address livestock depredation, ORS 498.012, and is therefore facially invalid. A stay against killing any more wolves should be granted until the petition for review can be decided fully on its merits: II. LEGAL BACKGROUND The Oregon Administrative Procedure Act grants jurisdiction to the Court of Appeals to review the validity of any administrative rule. ORS 183.400(1). The Court shall declare a rule invalid if it finds that the rule exceeds the statutory authority of the agency authorizing the rule. ORS 183.400(4)(b). The primary administrative rule at issue in this litigation, OAR 635-110-0010(6), states, in its entirely: (6) Lethal take to deal with chronic depredation: (a) ODFW may authorize its personnel, authorized agents, or Wildlife Services, to use lethal force on wolves at a property owner or permittee's request if: (A) ODFW confirms either: (i) Two confirmed depredations by wolves on livestock in the area; or (ii) One confirmed depredation followed by three attempted depredations (testing or stalking) in the area; (B) The requester documents unsuccessful attempts to solve the situation through non-lethal means; I (C) No identified circumstance exists that attracts wolf-livestock conflict; and (D) The requester has complied with applicable laws and the conditions of any harassment or take permit. PETITIONERS' MOTION—OTHER - STAY PENDING JUDICIAL REVIEW OF AGENCY RULE Page 4 of 22 Case 6:16-cv-00177-MC Document 27-1 Filed 10/31/16 Page 5 of 51 • • (b) When authorized, lethal take under this paragraph will be taken only by ODFW, authorized ODFW agents, or Wildlife Services personnel. "In the area" is defined as "where ODFW has determined the presence of the depredating wolves." OAR 635-110-0010(8). Wolves are listed as an endangered species under Oregon's Endangered Species Act ("ESA"), ORS 496.171 – 496.192. Respondents are responsible under the ESA for protecting endangered wildlife in the state and recovering their populations to the point where the ESA's measures are no longer necessary. ORS 496.171(1) (defining "conservation" as "the use of inethods and procedures necessary to bring a species to the point at which the procedures provided under [the ESA] are no longer necessary"); ORS 496.182 (requiring the Fish and Wildlife Commission to "establish by rule quantifiable and measurable guidelines that it cons'iders necessary to ensure the survival of individual members of the species.") Respondents are further required to "maintain all species of wildlife at optimum levels," and to manage wildlife "to prevent serious depletion of any indigenous species and to provide the optimum recreational and aesthetic benefits for the preserit and future generations of the citizens of this state." ORS 496.012. "Optimum level" means wildlife population levels that provide self-sustaining species as well as taking, nonconsumptive and recreational opportunities. ORS 496.004(12) With few enumerated exceptions, the Endangered Species Act ("ESA") prohibits any person from "taking" an endangered species. ORS 498.026(1). "Take" means to kill or obtain possession or control of any wildlife. ORS 496.004(16). The PETI.TIONERS' MOTION—OTHER - STAY PENDING JUDICIAL REVIEW OF AGENCY RULE Page.5 of 22 Case 6:16-cv-00177-MC Document 27-1 Filed 10/31/16 Page 6 of 51 J • • exceptions to the "take" prohibition include takings for scientific and incidental purposes, but do not include direct takings in response to past livestock depredation. ORS 498.026(2). ORS 498.012 is Oregon's "animal damages statute," and states, "nothing in the wildlife laws is intended to prevent any person from taking wildlife that is causirig damage, is a public nuisance or poses a public health risk on land that the person owns or lawfully occupies." For reasons described fully below, OAR 635-110-0010(6)-(8) violates the take prohibition of ORS 498.026(1) and exceeds the statutory authority given to the agency under ORS 498.012. III. STANDARD FOR ISSUANCE OF A STAY This Court has inherent authority to issue a stay to preserve the status quo in an administrative rule review proceeding. Northwestern Title Loans, LLC v. Division of Finance and Corporate Securities, Div., 180 Or. App. 1, 10, 42 P.3d 313 (2002)("the issuance of a stay in a rule review proceeding is within the court's inherent authority.") The Court has not yet articulated a specif c standard for issuance of a stay pursuant to its inherent authority, but it has suggested that the" statutory standard under ORS 183.482(3) may be appropriate to apply. Northwestern Title Loans, 180 Or. App. at 13, n.7 ("Arguably, we could apply a standard analogous to that used in reviewing requests for stays under ORS 183.482 in order to determine if a stay is PETITIONERS' MOTION—OTHER - - STAY PENDING JUDICIAL REVIEW OF AGENCY RULE Page 6 of 22 Case 6:16-cv-00177-MC Document 27-1 Filed 10/31/16 Page 7 of 51 • • appropriate in ORS 183.400 rule review proceedings.") Under ORS 183.482, a stay should be granted where (1) there will be irreparable injury to the petitioner, (2) petitioner has raised a colorable claim, and (3) the stay will not cause substantial public harm. To demonstrate their injury, petitioners are allowed to reference facts that are not involved in the rule challenge itself. NorthwesteYn Title Loans, 180 Or. App. at 12. Federal courts have articulated a similar standard. Winter v. NRDC, 129 S. Ct. 365, 374 (2008). A plaintiff seeking a temporary stay in federal court "must establish that he' is likely to succeed on themerits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Id. The Court has further authority to grant temporary relief pending the filing of a response to this motion to stay. ORAP 7.05(3). IV. PETITIONERS WILL SUFFER IRREPERABLE HARM IN THE ABSENSE OF AN IMMEDIATE STAY Petitioners' injury from the lethal removal of inembers of Oregon endangered wolf population would be irreparable. Irreparable injury is injury for which there is no adequate remedy at law. Levasseur v. Armon, 240 Or. App. 250, 259, 246 P.3d 1171 (2010). "Environmental injury, by its nature; can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i. e., irreparable. If such injury is sufficiently likely, therefore, the balance of harms will PETITIONERS' MOTION—OTHER - STAY PENDING JUDICIAL REVIEW OF AGENCY RULE Page 7 of 22 Case 6:16-cv-00177-MC Document 27-1 Filed 10/31/16 Page 8 of 51 • • usually favor the issuance of an injunction to protect the environment." Amoco Production Co. v. Village ofGambell, 480 U.S. 531, 545 (1987). Petitioners will be irreparably harmed by the loss of the endangered wolves in two ways. First, Petitioners have a particular interest in the specific wolves that are being targeted by ODFW. Klavins Decl., ¶ 6. Petitioners' staff and members have traveled to the Imnaha area to see these wolves, and have in fact seen the wolves that are currently being hunted by ODFW: Id. The experience of seeing these wolves in the wild – the first time that Petitioners have ever seen wild wolves in Oregon – was a profound and exhilarating experience for Petitioners. Id. Petitioners' staffs and members have definite plans to return to the Imnaha area with the hope of seeing these wolves again, and will obviously be unable to do so if they are killed. Id. The loss by deliberate killing of inembers of an endangered species – members that Petitioners have seen in the wild and enjoyed – cannot be remedied by money damages and is certainly "irreparable." Second, Petitioners have a substantial interest in the recovery of wolves throughout the state. Laughlin Decl., ¶ 2; Greenwald Decl., ¶ 2. Petitioners are all registered non-profit corporations with charitable missions that include protecting and restoring Oregon's environment, wildlife, and biological diversity. Laughlin Decl., ¶ 2; Greenwald Decl., ¶ 2; Klavins Decl., ¶ 2. Petitioners have a specific and particular interest in the recovery of Oregon's endangered gray wolves for several reasons. First, because wolves, as top predators, play a unique and important role in restoring PETITIONERS' MOTION—OTHER - STAY PENDING JUDICIAL REVIEW OF AGENCY RULE Page 8 of 22 Case 6:16-cv-00177-MC Document 27-1 Filed 10/31/16 Page 9 of 51 • • and maintaining the balance and health of Oregon's natural environment. Greenwald Decl., ¶ 3; Klavins Decl., ¶ 7. Second, because wolves contribute to Oregon's biological diversity. Id. Third, because wolves are extremely rare in Oregon, even in comparison to other endangered species, and their tiny population suffers from a high risk of failure. Klavins Decl. ; ¶ 8. Fourth, because wolves are icons of the wilderness values that Petitioners advocate for, and Petitioners use wolves to promote these values and to educate and inspire the public about larger environmental issues. Klavins Decl., ¶ 3; Petitioners represent their thousands of inembers throughout Oregon who wish to see the state's wolf population recover. Laughlin Decl., ¶ 2. Harm, even to one or two members of a species, is severe and irreparable when there are as few members of the species as there are here. See Defenders of Wildlife v. Martin, 2007 WL 641439 at *7 (E.D. Wash. 2007)(holding that "the evidence clearly supports a finding that interaction between snowmobiles and caribou is harmful to the animals. At this population level [35-45 animals], any harm even to a single animal could place the entire population in jeopardy"); see also Earth Island Institute v. Mosbacher, 746 F.Supp. 964, 975 (N.D. Cal. 1990), affd, 929 F.2d 1449 (9th Cir.1991) ("for those species now threatened with extinction, the harm may be irreparable in the most extreme sense of that overused term") In Humane Society of U.S. v. Kempthorne, 481 F.Supp.2d 53 (D.D.C.2006), the court found irreparable harm where 43 wolves would be exterminated by a PETITIONERS' MOTION—OTHER - STAY PENDING JUDICIAL REVIEW OF AGENCY RULE Page 9 of 22 Case 6:16-cv-00177-MC Document 27-1 Filed 10/31/16 Page 10 of 51 • ❑ Wisconsin program aimed at eliminating depredating wolves. The 43 wolves amounted to ten percent of the total population of wolves in Wisconsin. Id. The Oregon Wolf Conservation and Management Plan, which was developed and approved by Respondents, establishes that there need to be at least four breeding pairs of wolves in eastern Oregon for three consecutive years before "the natural reproductive potential of the wolf population is not in danger of failure." Petitioners' Exhibit 1 at 4:' If ODFW kills two more wolves, including the alpha male of the Imnaha pack, there will only be twelve wolves and one breeding pair in the entire state, which is not even close the point where "a naturally self-sustaining population of wolves would continue to exist." Id. The two targeted wolves in this case make up more than ten percent of the statewide wolf population, which was the percent of wolves at issue in Humane Society. Killing these wolves before this Court can rule in Petitioners' favor - when there are so few wolves already and where the population is still very much in danger of failure by Respondents' own standards - cannot be remedied by money damages and will cause irreparable harm. See LeVasseur at 259. V. PETITIONERS I-IAVE RAISED COLORABLE CLAIMS AND ARE LIKELY TO SUCCEED ON THE MERITS A colorable claim is one which is "seemingly valid and genuine: having an appearance of truth, right, or justice: plausible." Bergerson v. Salem-Keizer School Dist., 185 Or. App. 649, 659, 60 P.3d 1126 (2003) (citing Webster's Third New Int'l Dictionary, 449 (unabridged ed. 1993)). In Von Weidlein/N. W. Bottling v. OLCC, 16 Or. App. 81, 89, 515 P.2d 936 (1973) the court chatacterized "colorable claims" as PETITIONERS' MOTION—OTHER - STAY PENDING JUDICIAL REVIEW OF AGENCY RULE Page 10 of 22 Case 6:16-cv-00177-MC Document 27-1 Filed 10/31/16 Page 11 of 51 . . • • contentions that "appear to be substantial" or "non-frivolous." "A `colorable claim of error' is something less than a showing that the petitioner is reasonably likely to prevail on appeal." Bergerson, 185 Or. App. at 659. "If disposition of a case turns on [an agency's] interpretation or application of a statute, and a petitioner on judicial review plausibly argues that the agency misinterpreted the statute or misapplied it under the circumstances of the case, then the argument constitutes a colorable claim of error." Id. A. OAR 635-110-0010(6)-(8) violates the "take" prohibition of the Endangered Species Act. ORS 498.026 states, "no person shall take, import, export, transport, purchase or sell, or attempt to take, import, export, transport, purchase or sell, any threateried species or endangered species." Killing an endangered species constitutes "take." ORS 496.004(16). OAR 635-110-0010(6) authorizes ODFW and its agents to kill endangered wolves in response to livestock depredation. Wolves are an endangered species under Oregon Law, and are therefore protected by the "take" prohibition of the Endangered Species Act. By authorizing the take of endangered wolves, the challenged rule is inconsistent with ORS 498.026 and therefore exceeds Respondents' statutory authority. , ORS 498.026(2) includes a specific and exclusive list of statutory sections that allow for the taking of endangered species. None of the exceptions to the take prohibition in ORS 498.026(2) apply. ORS 496.172 allows for scientific and incidental take of endangered species. ORS 496.172(4). OAR 635-110-0010(6) does PETITIONERS' MOTION—OTHER - STAY PENDING JUDICIAL REVIEW OF AGENCY RULE Page 11 of 22 Case 6:16-cv-00177-MC Document 27-1 Filed 10/31/16 Page 12 of 51 0 ~ not provide any scientific rationale for killing wolves. Further, ORS 497.298 requires any person seeking to take an endangered species for scientific purposes first to receive a permit to do so from the State Fish and Wildlife Commission. It is Plaintiffs' beliefs that.ODFW has not sought and does not.hold such a permit. The wolves at issue in this litigation are not targeted for scientific purposes and cannot be killed under this exception. Likewise, the hunting of these wolves is not incidental to any other action. These targeted wolves are not the possible collateral damage of some other state- approved action. The killing of these wolves is ODFW's goal, not incidental to some other goal. Incidental take requires an incidental take permit, ORS 496.172(4), which to the best knowledge of Plaintiffs, ODFW has not obtained. The incidental take provision does not apply. Additional exceptions found in ORS 497.218, 497.228, and 497.238 address fur dealers, animal propagators, and taxidermists respectively and are inapplicable to the challenged rule. ORS 497.308 deals with removal of live endangered animals from their natural habitat and is equally inapplicable to the challenged rule. The above-listed reasons represent the only exceptions to the prohibition on taking endangered species, none of which apply here. B. OAR 635-110=0010(6) exceeds the authority to take wolves under the animal damages statute. ORS 498.012 is Oregon's "animal damages statute," and though not enumerated in the list of exceptions to the take prohibition in ORS 498.026(2), could PETITIONERS' MOTION—OTHER - STAY PENDING JUDICIAL REVIEW OF. AGENCY RULE Page 12 of 22 Case 6:16-cv-00177-MC Document 27-1 Filed 10/31/16 Page 13 of 51 • • arguably give authority to take endangered wildlife under limited circumstances. ORS 498.012 states, "nothing in the wildlife laws is intended to prevent any person from taking wildlife that is causing damage... on land that the person owns or lawfully occupies."' The plain language of ORS 498.012 provides at least two explicit limitations to taking wildlife in response to animal damages. First, the wildlife must be one that "is causing" damage. ORS 498.012. Second, the damage inust occur "on land that the person owns or lawfully occupies." Id. In adopting OAR 635-110-0010(6)-(8), Respondents have ignored these - explicit limitations and given themselves broad authority to kill endangered wolves that are not and have never caused "damage" to any livestock or other property. OAR 635-110-0010(6)-(8) allows ODFW to kill any wolf or wolves "in the area" of livestock depredation, regardless of whether the wolves caused the damage. OAR 635-110-0010(6). Wolves that have never killed livestock can be taken under the rule for merely being "in the area" of livestock depredation. Allowing ODFW to kill any wolf in the area, regardless of whether it was in any way responsible for the damage, clearly violates the ESA and the requirement in ORS 498.012 that wildlife may only be taken if it "is causing damage." Second, OAR 635-110-0010(6) allows ODFW to kill wolves at any time after two depredations have been confirmed, whether it is moments, weeks, or years after ' The statute also allows take of wildlife that is a"public nuisance" or "public health risk," but livestock depredations is specifically covered by the "damage" clause. ORS 498.012(6). PETITIONERS' MOTION—OTHER - STAY PENDING JUDICIAL REVIEW OF AGENCY RULE Page 13 of 22 Case 6:16-cv-00177-MC Document 27-1 Filed 10/31/16 Page 14 of 51 • • the depredations have occurred, and regardless of whether there. is any evidence that the wolves will attack livestock again. 2 The rule thus ignores the temporal limitation of the animal damages statute – that wildlife may be taken only when it "is" causing damage. The phrase "causing damage" is specifically framed in the present tense, and the statute does not allow Respondents to give themselves authority to kill all endangered species in the area for damage that was caused at any indefinite time in the past. Third, OAR 635-110-0010(8) defnes the term "in the area" as "where ODFW has determined the presence of depredating wolves," and does not account for property boundaries or land occupancy. The rule thus ignores the statute's explicit spatial limitation – that a person may only take wildlife that is causing damage "on land that the person owns or lawfully occupies." ORS 498.012. In these three respects ; OAR 635-110-0010(6)-(8) far exceeds the authority given to ODFW under ORS 498.012. The animal damages statute authorizes a person to take wildlife only on his or her property and only when the wildlife is actively causing damage. OAR 635-110-0010(6) allows ODFW to kill any wolf at any time and anywhere, so long as there. have been two depredations "in the area" at any point in the past, and regardless of whether the wolves caused the damage. The challenged rule clearly exceeds the statutory authority given to Respondents and should be invalidated. Z The latest confirmed livestock depredation occurred nearly two weeks ago. PETITIONERS' MOTION—OTHER - STAY PENDING JUDICIAL REVIEW OF AGENCY RULE Page 14 of 22 Case 6:16-cv-00177-MC Document 27-1 Filed 10/31/16 Page 15 of 51 • • Additionally, the standards in OAR 635-110-0010(6)-(8), having failed to set forth any measurable guidelines for when arid where wolves can be killed in response to livestock depredation, are neither "quantifiable" nor "measurable" as required by ORS 496.182 (requiring the Fish and Wildlife Commission to "establish by rule quantifiable and measurable guidelines that it considers necessary to ensure the survival of individual members of the species.") Further, a person may not take an endangered species under the animal damages statue unless the person first obtains a permit from the Oregon Fish and Wildlife Commission. ORS 498.012. OAR 635-110-0010(6)-(8) authorizes ODFW to take wolves without a permit from the Commission, and therefore exceeds the statutory given to the agency by law. Alternatively, the text and history of the animal damages statute and the take prohibition statute suggest that ORS 498.012 should not apply to endangered species. ORS 498.012, which allows take of any wildlife that is causing damage, appears to be in direct conflict with ORS 498.026, which prohibits take except by specific enumerated exceptions that do not include livestock damage. For several reasons, the court should resolve the difference in favor of a plain reading of ORS 498.026 prohibiting take of endangered species. First, had the legislature intended for the take prohibition in ORS 498.026 to exclude takings under ORS 498.012, it could have, and would have, included ORS 498.012 in the list of exceptions under ORS 498.026(2). That the legislature has PETITIONERS' MOTION—OTHER - STAY PENDING JUDICIAL REVIEW OF AGENCY RULE Page 15 of 22 Case 6:16-cv-00177-MC Document 27-1 Filed 10/31/16 Page 16 of 51 • • specifically -listed the exceptions to the take prohibition, and that take under 498.012 in not on the list, strongly indicates that the take prohibition (which applies specifically to endangered species) trumps the animal damages statute (which applies to wildlife in general). Additionally, the animal damages statute was enacted for the purpose of letting individual private landowners protect their own private property from animals caught in the act of causing damage. ORS 498.012 (allowing take of wildlife only "on land that the person owns or lawfully occupies.") It was not written to be a tool for state control of endangered species. Applying ORS 498.012 to private landowners, and not state agencies (perhaps except in cases where the agency owns or is the lawful occupant of land where depredations occur) is consistent with the requirement that any person taking wildlife under ORS 498.012(3) report to ODFW after having done so. ORS 498.012 fits into the legislative scheme as a narrow exception to the take prohibition that protects private property rights that existed before the creation of the take prohibition. ORS 498.012 should be understood as a private landowner's caught in-the-act exception to the take prohibition, not an opening for ODFW to conduct roaming hunts for endangered wolves in violation of ORS 498.026. VI. A STAY IS IN THE PUBLIC INTEREST AND WILL NOT CAUSE SUBSTANTIAL PUBLIC HARM A stay is in the public interest and will not cause substantial public harm. The Oregon Wolf Conservation and Management Plan explains: Human attitudes toward wolves in North America have undergone significant PETITIONERS' MOTION—OTHER - STAY PENDING JUDICIAL REVIEW OF AGENCY RULE Page 16 of 22 Case 6:16-cv-00177-MC Document 27-1 Filed 10/31/16 Page 17 of 51 • • changes during the second half of the 20` h century. Strong support for wolf conservation has been documented throughout the United States (Mech and Boitani 2003). Cultural influences such as popular literature, the work of researchers, and the voice of conservationists such as Aldo Leopold have provided information and support for conservation. A 1999 poll of Oregonians showed a 70 percent support rate for the return of wolves to the state. Petitioners' Exhibit 1 at 2(emphasis added). ORS 496.012 declares that Respondents "shall represent the public interest," by, among other things, "maintain[ing] all species of wildlife at optimum levels." "It is the policy of the State of Oregon that wildlife shall be maintained to prevent serious depletion of any indigenous species and to provide the optimum recreational and aesthetic benefits for the present and future generations of the citizens of this state." \ ORS 496.012. "Optimum level" means wildlife population levels that provide self- sustaining species as well as taking, nonconsumptive and recreational opportunities. ORS 496.004(12). Oregon law further requires the "conservation" of threatened and endangered wildlife, which is defined by the goal of bringing such species "to the point at which measures under [the Oregon ESA] are no longer necessary." ORS 496.171(1); see also OAR 630-100-0080 ("The commission's long-term goal for species listed as threatened or endangered under the state Endangered Species Act is to manage the species.and their habitats so that the status of the species improves to a point where listing is no longer necessary.") A stay of ODFW's attempts to kill two of Oregon's only fourteen wolves will not cause any public harm. At most, it may increase the chances, but in no way PETITIONERS' MOTION—OTHER - STAY PENDING JUDICIAL REVIEW OF AGENCY RULE Page 17 of 22 Case 6:16-cv-00177-MC Document 27-1 Filed 10/31/16 Page 18 of 51 • ~ guarantee, that another livestock depredation will occur. The harm to landowners from potential livestock depredation is economic harm, for which there is a remedy at law and which is not irreparable. See Northern Alaska Envtl. Ctr. V. Hodel, 803 F. 2d 466, 471 (9th Cir. 1986)("more than pecuniary harm must be demonstrated" to prevent issuance of injunctive relief); Los Angeles Mem. Coliseum v. National Football League, 634 F.2d 1197, 1202 (9th Cir. 1980) (citing Sampson v. Murray, 415 U.S. 61, 90 (1974) ("it is well established... that such monetary injury is not normally considered irreparable.") Loss of an endangered species outweighs economic harm. See Sierra Club v. Marsh, 816 F.2d 1376, 1386 n. 13 (9th Cir. 1987) ("Although we do not denigrate the court's concern with the expense and inconvenience to the public an injunction would cause, Congress has decided that these losses cannot equal the potential loss from extinction.") Moreover, under state law, livestock producers are reimbursed at taxpayer expense when wolves are confirmed to be the cause of livestock loss. HB 3560 (2011). While the loss of any livestock is real for that individual rancher, death is a very regular part of raising cattle, and the economic harm from wolf depredation is a tiny fraction of the loss that ranchers manage every year. In 2006, when the last survey was published by the U.S. Department of Agriculture, there were approximately 65,000 cattle and calf deaths in Oregon. Petitioners' Exhibit 2. Of those deaths, approximately 61,000 (nearly 94%) were from non-predator causes, including digestive and respiratory problems, calving problems,'weather, theft, and - PETITIONERS' MOTION—OTHER - STAY PENDING JUDICIAL REVIEW OF AGENCY RULE Page 18 of 22 Case 6:16-cv-00177-MC Document 27-1 Filed 10/31/16 Page 19 of 51 • • poisoning. Petitioners' Exhibit 2 at 2. Of the 4,500 cattle and calf deaths attributed to predators, 2,300 were attributed to coyotes, 1,500 were attributed to mountain lions, and the rest are unknown. Petitioners' Exhibit 2 at 2. In 2011, there have been less than twenty confirmed cattle deaths attributed to wolves in Oregon. VII. CONCLUSION For all of the reasons above, Petitioners' emergency motion for a temporary stay should be granted and implementation of OAR 635-110-0010(6)-(8) should be stayed pending the outcome of this case. Further, the court should grant immediate temporary relief under ORAP 7.05(3) to preserve the status quo until this motion can be ruled on. DATED this .5 th Day of October, 2011 ; Daniel Kruse (OSB # 064023) 130 South Park Street Eugene, Oregon 97401 Phone: (541) 870-0605 dkruse@cldc.org Timothy J. Ream (OSB # 106538) 351 California Street, Suite 600 San Francisco, CA 94104 Phone: (415) 436-9682 ext. 315 tream@biologicaldiversity.org Attorneys for Petitioners PETITIONERS' MOTION—OTHER - STAY PENDING JUDICIAL REVIEW OF AGENCY RULE Page 19 of 22 Case 6:16-cv-00177-MC Document 27-1 Filed 10/31/16 Page 20 of 51 • • CERTIFICATE OF SERVICE I certify that on October 5, 2011,1 served a true copy of this motion for stay and the attached declarations and exhibits by hand delivery on: Oregon Fish and Wildlife Commission 3406 Cherry Avenue N.E. Salem, OR 97303 Oregon Department of Fish and Wildlife 3406 Cherry Avenue N.E. Salem, OR 97303 Attorney Generat of the State of Oregon Office of tlie Solicitor , General 400 Justice Building 1162 Court Street N.E. Salem, OR 97301-4096 D 'drKruse (OSB # 064023) Attorney for Petitioners PETITIONERS' MOTION—OTHER - STAY PENDING JUDICIAL REVIEW OF AGENCY RULE Page 20 of 22 Case 6:16-cv-00177-MC Document 27-1 Filed 10/31/16 Page 21 of 51 • ~ CERTIFICATE OF FILING I certify that on October 5, 2011, I filed the original of this motion for stay and the attached declarations and exhibits with the Appellate Court Administrator by hand delivery at this address: Appellate Court Administrator, Appellate Court Records Section 1163 State Street Salem, OR 97301-2563 Danie Kruse (OSB # 064023) Attorney for Petitioners PETITIONERS' MOTION—OTHER - STAY PENDING JUDICIAL REVIEW OF AGENCY RULE Page 21 of 22 Case 6:16-cv-00177-MC Document 27-1 Filed 10/31/16 Page 22 of 51 0 9 CERTIFICATE OF COlVIPLIANCE I certify that this motion is proportionately typed with 13-point font and contains 4,707 words. ~–~- - Daniel Kruse (OSB # 064023) Attorney for Petitioners PETITI.ONERS' MOTION—OTHER - STAY PENDING JUDICIAL REVIEW OF AGENCY RULE Page 22 of 22 Case 6:16-cv-00177-MC Document 27-1 Filed 10/31/16 Page 23 of 51 • ~ IN THE COURT OF APPEALS OF THE STATE OF OREGON CASCADIA WILDLANDS an Ore on non-profit co oration; CENTER F~R BIOLOGICA DIVERSITY, a New Mexico non-profit co oration; and OREGON WILD, an~regon non-profit corporation, CA A Petitioners, DECLARATION OF vs. ROBERT KLAVINS OREGON FISH AND WILDLIFE COMMISSION, an agenc of the State of Oregon; and ORECiONy DEPARTMENT OF FISH AND WILDLIFE, an agency of the State of Oregon, Respondents. I, ROBERT KLAVINS, declare as follows: 1. I am the Wildlife and Wildlands Advocate and a member in good standing of Oregon Wild, formerly Oregon Natural Resources Council. I reside in Multnomah County, Oregon and I have been involved with Oregon Wild as an employee or supporter since 2008. I have also been a member of Cascadia Wildlands. 2. Founded in 1974, Oregon Wild is a non-profit corporation with approximately 8,000 members and supporters. Oregon Wild has offices in Portland, Eugene, and Bend, Oregon. Oregon Wild is dedicated to protection DECLARATION OF ROBERT KLAVINS Page 1 of 7 Case 6:16-cv-00177-MC Document 27-1 Filed 10/31/16 Page 24 of 51 • • and restoration of Oregon's wild lands, wildlife, and waters—including the state's remaining old-growth and roadless areas—and restoring Oregon's forest ecosystems to a naturally functioning state that includes a full complement of native species, including top predators like the gray wolf. 3. Oregon Wild members regularly enjoy and will continue to enjoy educational, recreational, and scientific activities, including hiking, camping, and observing wildlife, in wolf habitat. For the last two years, Oregon Wild has led an annual "Wolf Rendezvous." The trips bring supporters to Oregon's wolf habitat to learn about - and perhaps encounter – wolves. The events have received significant media attention and demonstrated the positive impacts of wolves for our members, other citizens, and the communities near wolf populations. They have increased visibility of Oregon Wild's mission, work, and activities and helped build important connections between the organization and its members. In both years, interest in attending the trips has exceeded capacity and many have followed with inquiries on how they can independently visit Oregon's wolf country. The interests of Oregon Wild along with its members and supporters, have been harmed by Defendant's issuance of kill permits and will continue to be harmed unless the Court grants Petitioners' requested relief. DECLARATION OF ROBERT KLAVINS Page 2 of 7 Case 6:16-cv-00177-MC Document 27-1 Filed 10/31/16 Page 25 of 51 . ~ 4. I have a personal commitment to protect habitat for native wildlife. I have on many occasions visited, and intend to continue to visit, the forests and rangelands of Oregon that provide, have provided, and/or could again provide habitat for the gray wol£ I hope to do so many more times in the future. I have visited wolf habitat (and potential wolf habitat) in the Wallowa-Whitman National Forest, Hells Canyon National Recreation Area, Umpqua National Forest, Umatilla National Forest, Deschutes National Forest, Mount Hood National Forest, Winema Fremont National Forest, Rogue River National Forest, as well as a number of other private and public lands in Oregon and elsewhere. I have visited many of these places more than once. In these areas I enjoy camping, hiking, backpacking, photography, nature observation, wildlife viewing, swimming, and other pursuits. As part of my work I also participate in reviewing, commenting on, and participating in forest and wildlife management efforts on public and private lands all across Oregon, and assist others in engaging in multi-faceted advocacy for practices that improve habitat for wolves and their prey. 5. I have seen wolves, heard them howl, and observed their sign in personal travels in Oregon, Wisconsin, Minnesota, Ontario, and the upper peninsula of Michigan. I have also visited other parts of the country such as Wyoming, Montana, and Idaho, in the hopes of seeing wolves. The presence and DECLARATION OF ROBERT KLAVINS Page 3 of 7 Case 6:16-cv-00177-MC Document 27-1 Filed 10/31/16 Page 26 of 51 • • possibility of encountering wolves enriched these experiences greatly. In addition to regularly visiting, and at times living in, current and potential wolf habitat in Oregon in my professional capacity (as an advocate at Oregon Wild and previously as an educator with the Oregon Museum of Science and Industry), I have also done so extensively in a personal capacity for the last 4 years. 6. I have recently visited the currently occupied wolf habitat of both the Imnaha and Wenaha packs in Northeast Oregon with the hope of seeing or hearing wolves or signs of wolves. In the fall of 2010, I personally observed and photographed the Imnaha Pack of wolves in the Eagle Cap Wilderness. Seeing the Imnaha wolves in the wild — the first and only wolves in Oregon that I have ever seen — had a profound impact on me and my experience in the Eagle Cap Wilderness. In the next month alone, I have definite plans to return twice to the same area with the specific hope of observing the Imnaha wolves or their sign. The presence and potential presence of wolves in these areas provides a strong incentive for my visits to the wildlands of Oregon, and greatly enriches my experience in the wild. 7. As a top predator, wolves play a vital role in ecosystem functioning. Wolves contribute to a dynamic and healthy ecosystem by, among other things, culling weak members from ungulate herds which helps maintain healthy DECLARATION OF ROBERT KLAVINS Page 4 of 7 Case 6:16-cv-00177-MC Document 27-1 Filed 10/31/16 Page 27 of 51 • • ungulate populations, and dispersing elk herds to prevent them from congregating in sensitive meadows and wetlands. I consider the extirpation of wolves from Oregon one of our greatest environmental tragedies and believe their return and sustainable recovery has the potential to be one of our greatest achievements toward the restoration of our healthy, functional, intact, native ecosystems. 8. My interests in a healthy, sustainable recovery of the Oregon wolf population and in seeing wolves in the wild are harmed by the decision by Oregon to lethally remove wolves. With a recently confirmed population of merely 14, Oregon's wolves are rightfully an endangered species. The killing of even a single wolf puts wolf recovery in Oregon in serious jeopardy, and it causes a direct injury to me. 9. Oregon Wild and its supporters have actively participated in many facets of Oregon Wolf management and decision making. 10. Wolves were once numerous in Oregon but were extirpated in the early 20t" Century. The return of wolves to Oregon depends on maintaining and protecting a large population of wolves, their habitat, and their social structures in the state of Oregon and beyond. In July 2008, Oregon Department of Fish & Wildlife (ODFW) reported that a wolf pack, including adults and pups, was confirmed in a forested area of northern Union County. This was the first DECLARATION OF ROBERT KLAVINS Page 5 of 7 Case 6:16-cv-00177-MC Document 27-1 Filed 10/31/16 Page 28 of 51 • 0 evidence of multiple wolves and wolf reproduction in Oregon since wolves were extirpated from the state back in the mid-1940s. According to most recent reports from ODFW, Oregon is now home to 14 confirmed wolves. Oregon Wild members are very excited about this, however, the species is still endangered and its sustainable recovery is in the state is tenuous. The confirmed population of 14 animals is a significant reduction from populations in the 20's, and the Imnaha Pack represents the most consistently successful breeding pack in the state. The loss of any wolves in Oregon represents a serious setback to their recovery and may exacerbate conflict, which will diminish my opportunity to enjoy wolves and their effects in the wilds of Oregon. 11. If two wolves are killed, as planned, it will deprive me, Oregon Wild, and its other members of aesthetic, spiritual, ecological, economic, and recreational benefits derived from the species and its habitat. Following appropriate law and procedures and fully considering the environmental impacts of agency action will more likely ensure appropriate wolf conservation and management in the state of Oregon and provide relief for the harm suffered by Oregon Wild and its members including myself. I hereby declare that the above statement is true to the best of my knowledge and belief, and that I understand it is made for use as evidence in DECLARATION OF ROBERT KLAVINS Page 6 of 7 Case 6:16-cv-00177-MC Document 27-1 Filed 10/31/16 Page 29 of 51 • • court and is subject to penalty for perjury. Executed on October 4, 2011 in Portland, Oregon. ~- Robert Klavins DECLARATION OF ROBERT KLAVINS Page 7 of 7 Case 6:16-cv-00177-MC Document 27-1 Filed 10/31/16 Page 30 of 51 0 • IN THE COURT OF APPEALS OF THE STATE OF OREGON CASCADIA WILDLANDS an Oregon non-profit corporation; CENTER FOR BIOLOGICAL DIVERSITY, a New Mexico non-profit corp oration; and OREGON WILD, an Oregon non-profit corporation, .. Petitioners, vs. DECLARATION OF JOSH LAUGHLIN OREGON FISH AND WILDLIFE COMMISSION, an agenc of the State of Oregon; and OREUONy DEPARTMENT OF FISH AND WILDLIFE, an agency of the State of Oregon, Respondents. I, JOSH LAUGHLIN, declare as follows: 1. I am the Campaign Director of Cascadia Wildlands (Cascadia), a non- profit conservation organization based in Eugene, Oregon. I have worked with Cascadia Wildlands since 2001 in various conservation positions, including as the Executive Director. I,am also a member of the organization. 2. Cascadia Wildlands has approximately 6,000 supporters and members across the country who are interested in and support Cascadia Wildlands' work to protect and restore the ecosystems and species of the Cascadia Bioregion. The gray wolf is of particular interest to our membership as it is currently DECLARATION OF JOSH LAUGHLIN Page 1 of 7 Case 6:16-cv-00177-MC Document 27-1 Filed 10/31/16 Page 31 of 51 • • making a comeback in Oregon after being systematically exterminated from the state nearly 65 years ago. Cascadia Wildlands and its members derive substantial benefits from the existence of wolves. We appreciate the ecosystem balance the species is restoring with its return, as well as simply appreciating the intrinsic value of the species. Our members have expressed excitement about the prospect of seeing a wolf in Oregon or even hearing the howl of wolf in the backcountry. Some of our members live in northeast Oregon near where Oregon's gray wolves currently reside. Our members in western Oregon await the day that wolves cross into the Cascades. 3. Since its inception iri 1998, Cascadia Wildlands has advocated for wolf recovery in Oregon, as endangered species recovery is of paramount importance to our organization and membership. Recognizing that wolves would soon migrate into the state after being federally reintroduced in 1995 and 1996 into Yellowstone National Park and in central Idaho, we began campaign planning to help facilitate recovery in Oregon. 4. In 1999 and 2000, three wolves migrated into Oregon from Idaho. One was shot and killed. One was hit by a car and killed. And one was captured and returned to Idaho by state wildlife officials. These incidents helped compel the formation of the Oregon Wolf Plan, which was initiated by the Oregon Department of Fish and Wildlife in 2002 recognizing it had an ecological and DECLARATION OF JOSH LAUGHLIN Page 2 of 7 Case 6:16-cv-00177-MC Document 27-1 Filed 10/31/16 Page 32 of 51 • • legal duty to recover wolves in Oregon. The objective of the plan was to create a framework that would allow for recovery and management of the species once it returned to Oregon. Cascadia Wildlands and our membership actively participated in good faith in the formation of the plan by attending open houses, submitting comments, writing letters to the editor and opinion pieces for various publications, and providing testimony at hearings. Through a stakeholder process, the compromise plan was adopted by the Oregon Fish and Wildlife Commission in 2005 and supported by Cascadia Wildlands under the assumption the plan and its regulations would be followed. 5. Today, Oregon has three packs of confirmed wolves, the Imnaha Pack, the Wenaha Pack and the Walla Walla Pack, but only one of these packs was confirmed to have two or more pups this year. The Imnaha Pack has had periodic run-ins with livestock near Joseph, Oregon over the past few years. In May 2011, when wolves were removed from federal Endangered Species Act protections by a Congressional rider, the ODFW killed two wolves in response to a series of livestock depredations attributed to the Imnaha Pack. Following those killings and an apparent stress-related death of one of its members, some members of the pack dispersed, leaving four members in the pack. 6. On September 22, 2011, ODFW determined that wolves in the Imnaha Pack were involved in the death of a calf on private land near Joseph, Oregon. DECLARATION OF JOSH LAUGHLIN Page 3 of 7 Case 6:16-cv-00177-MC Document 27-1 Filed 10/31/16 Page 33 of 51 • ❑ a week backpack'ing through the Eagle Cap Wilderness in the hopes of catching a glimpse of a wolf or the howl in the backcountry. I plan to return to the wilderness soon to do the same, especially since the Imnaha Pack's territory overlaps this area. Killing two of the only four remaining wolves in the Imnaha pack will significantly reduce my chances of enjoying and experiencing wolves in the Eagle Cap area, and it will negatively affect my experience in the area. 12. In June of this year, my family went on a 6-day float trip on the John Day River with the hopes of seeing or hearing a wolf, as we understood there to be wolf sightings in that area. Shortly after the trip, the ODFW reported that one of the Imnaha Pack wolves had dispersed from the pack and was located near Fossil, OR, not far from where we put in on our river trip. I plan to return to the John Day to see or hear the wolves, and plan to continue to advocate for gray wolves in Oregon on behalf of myself and Cascadia Wildlands. 13. My future enjoyment of gray wolves and my experience in Oregon's backcounty is being, and will continue to be, irreparably harmed by ODFW's issuance of kill permits. If this Court were to invalidate the administrative rule that ODFW is using to kill wolves, the harm I would suffer from the agencies' unlawful activity would be remedied. I hereby declare that the above statement is true to the best of my knowledge and belief, and that I understand it is made for use as evidence in DECLARATION OF JOSH LAUGHLIN Page 6 of 7 Case 6:16-cv-00177-MC Document 27-1 Filed 10/31/16 Page 34 of 51 • i court and is subject to penalty for perjury. Executed in Eugene, Oregon this 4th day of October, 2011. 06t- t J H LAU IN DECLARATION OF JOSH LAUGHLIN Page 7 of 7 Case 6:16-cv-00177-MC Document 27-1 Filed 10/31/16 Page 35 of 51 n • • IN THE COURT OF APPEALS OF THE STATE OF OREGON non-profit co rporation; CENTER FOR BIOLOGICAL DIVERSITY, a New CASCADIA WILDLANDS an Ore gon Mexico non-profit corporation; and . .~ OREGON WILD, an Oregon non-profit corporation, Petitioners, vs. DECLARATION OF DAVID NOAH GREENWALD OREGON FISH AND WILDLIFE COMMISSION, an agenc of the State of Oregon; and OREGONy DEPARTMENT OF FISH AND WILDLIFE, an agency of the State of Oregon, Responden I, David Noah Greenwald, state and declare as follows: l. I have been a member, conservation biologist, and now endangered species program director, of the Center for Biological Diversity ("the Center") for nearly 15 years. In these capacities, I have been responsible for monitoring the status of North American species and the habitats they depend on, including the gray wolf. 2. The Center is a nonprofit corporation founded in 1989 with offices in Portland, Oregon; Phoenix and Tucson, Arizona; Silver City, New Mexico; San Diego, San Francisco, and Joshua Tree, California; and Washington, D.C. The DECLARATION OF DAVID NOAH GREENWALD Page 1 of 4 Case 6:16-cv-00177-MC Document 27-1 Filed 10/31/16 Page 36 of 51 • • Center is actively involved in species and habitat protection issues throughout North America, and has over 42,000 members throughout North America, including in Oregon. The Center's members and staff include area residents with biological, health, educational, scientific research, moral, spiritual, and aesthetic interests in the health of the natural environment and in the recovery of wolves in Oregon. 3. As part of my work at the Center, I have worked for the survival and recovery of the gray wolf in North America. Under my direction, the Center has been involved in several successful lawsuits to restore protections for gray wolves in both the northern Rocky Mountains and Great Lakes under the Endangered Species Act. A large part of our interest in this litigation has been to ensure that wolves remain protected until they have recovered in a larger part of their historic range where there remains suitable habitat, including Oregon. This interest is not just based on our overall concern for loss of biodiversity and the tragedy of extinction, but also on the recognition that wolves play a critical role in the function of ecosystems. Reintroduction of wolves to Yellowstone National Park, for example, has led to changes in the movement patterns of elk, which has subsequently led to recovery of streamside vegetation and in turn beaver and songbird populations that depend on this vegetation. DECLARATION OF DAVID NOAH GREENWALD Page 2 of 4 Case 6:16-cv-00177-MC Document 27-1 Filed 10/31/16 Page 37 of 51 • • 4. I have visited areas occupied by wolves in Oregon and elsewhere on numerous occasions in the hope that I would see a wolf, but as of yet I have not had the privilege. Most recently, I visited the Wallowa Mountains in Oregon, and Yellowstone National Park in August of this year and actively looked for wolves. Specifically, in early August I backpacked into the Eagle Cap Wilderness in the hope of hearing or seeing one of the Imnaha Pack wolves, as well as to appreciate this beautiful and wild landscape. Later in August, I twice visited the Lamar Valley in Yellowstone National Park in the hope of seeing or hearing a wolf, including waking up well before dawn in order to get to the Valley at the best time for observing wolves. 5. I derive scientific, aesthetic, professional, spiritual, and other benefits from the existence of wolves in Oregon—my home state—and the possibility that I may have the fortune in the future of observing a wolf in the wild, including members of the Imnaha Pack. I plan to return to the Wallowa Mountains this winter to backcountry ski and hopefully observe a wolf in the wild. My interests will be harmed if wolf recovery is stymied by the killing of wolves by Oregon Department of Fish and Wildlife and in particular killing of wolves in the Imnaha Pack. I believe that wolves and people can coexist if people take the necessary precautions to ensure wolves are not attracted to an area and their livestock are properly protected. DECLARATION OF DAVID NOAH GREENWALD Page 3 of 4 Case 6:16-cv-00177-MC Document 27-1 Filed 10/31/16 Page 38 of 51 • • I hereby declare that the above statement is true to the best of my knowledge and belief, and that I understand it is made for use as evidence in court and is subject to penalty for perjury. Executed on October 3, 2011 in Portland, Oregon. David Noah Greenwald (Original signature on file with counsel) DECLARATION OF DAVID NOAH GREENWALD Page 4 of 4 Case 6:16-cv-00177-MC Document 27-1 Filed 10/31/16 Page 39 of 51 • ~ IN THE COURT OF APPEALS OF THE STATE OF OREGON CASCADIA WILDLANDS an Ore gon non-profit co~rp oration; CENTER FOR BIOLOGICAL DIVERSITY, a New Mexico non~-pr~ ofit corp oration; and OREGON WILD, an Oregon non-profit corporation, .Petitioners, vs. OREGON FISH AND WILDLIFE COMMISSION, an agenc of the State of Oregon; and OREGONy D EPARTMENT OF FISH AND WILDLIFE, an agency of the State of Oregon, Respondents CA A DECLARATION OF WALTER SYKES I, Walter H. Sykes IV, declare as follows: I am a co-founder of NE Oregon Ecosytems and a member in good standing of Oregon Wild. I reside in Wallowa County, Oregon. 2. Created in late 2009, NE Oregon Ecosystems is an unincorporated group of concerned citizens who wish to encourage the coexistence of wolves and livestock operators in NE Oregon, to thereby improve the environmental qualities of our public and private lands and to encourage the development of a viable eco-tourism industry in NE Oregon. 3. Towards this end, I and other members of NE Oregon Ecosystems have DECLARATION OF WALTER SYKES Page 1 of 4 Case 6:16-cv-00177-MC Document 27-1 Filed 10/31/16 Page 40 of 51 • • arranged, advertised and shown in Baker and Wallowa Counties the documentary Lords of Nature, setting forth the various benefits wolves and other large predators bring to the environment through trophic cascades as described in Yellowstone and Zion National Parks. We included at these showings a discussion panel featuring representatives from the scientific community, ODFW, USFWS, Defenders of Wildlife, and the livestock industry, the latter being i.ndividuals who had experienced or claimed losses of livestock to wolves in Oregon. I and others have provided the funds and incentive to bring Timm Kaminski of Mountain Livestock Co-op to NE Oregon to present his livestock management techniques developed and successfully used by stockgrowers in Alberta and elsewhere to minimize wolf/livestock conflict. We have contributed to the 2010 range rider program and have provided advertising, advice, hosting, and liaison with organizations conducting or wishing to conduct eco-tours or wolf=oriented trips, including the arrangement of talks by local wildlife biologists, ranchers, business owners and wolf advocates. I and others of our group have given presentations to students, written opinion pieces and appeared on radio talk shows as part of our effort to provide public education on wolf-related issues. 4. I regularly enjoy and wish to continue to enjoy educational, recreational and scientific activities, including hiking, camping, and observing wildlife in DECLARATION OF WALTER SYKES Page 2 of 4 Case 6:16-cv-00177-MC Document 27-1 Filed 10/31/16 Page 41 of 51 • • wolf habitat. My interests will be harmed by Defendant's continued faiiure to comply with the intended spirit of the Oregon Wolf Plan and by its intention to issue and execute lethal removal orders on the Imnaha Pack wolves and others. 5. I have a personal commitment to protect habitat for native wildlife. I have on many occasions visited, and intend to continue to visit, the forests and rangelands of Oregon that provide, have provided, and/or could again provide habitat for the gray wolf. I hope to do so many more times in the future. I have visited wolf habitat (and potential wolf habitat) in the Wallowa-Whitman National Forest, Hells Canyon National Recreation Area, Umpqua National Forest, Umatilla National Forest, Deschutes National Forest, Winema Fremont National Forest, Rogue River National Forest, as well as a number of other private and public lands in Oregon and elsewhere. I have visited many of these places more than once. In these areas I enjoy camping, biking, backpacking, photography, nature observation, wildlife viewing, swimming, and other pursuits. 6. I have seen wolves, heard them howl, and observed their signs in Oregon. The presence and possibility of encountering wolves in Oregon has enriched my experience in the outdoors greatly. I regularly visit and currently live in actual and potential wolf habitat in Oregon. The presence and potential presence of wolves in these areas provides a strong incentive for my visits to the wildlands DECLARATION OF WALTER SYKES Page 3 of 4 Case 6:16-cv-00177-MC Document 27-1 Filed 10/31/16 Page 42 of 51 . . ` , • ~ of Oregon, and it greatly enriches my experience in the wild. 7. My interests in a healthy, sustainable recovery of the Oregon wolf population and in seeing wolves in the wild are harmed by the Oregon Departrnent of Fish and Wildlife's lethal wolf removal program. With a confirmed population of wolves in the low double digits, Oregon's wolves are rightfully a state endangered species. The killing of even a single wolf puts wolf recovery in Oregon in serious jeopardy, and it causes a direct injury to me. 8. The Imnaha pack itself has fallen from 16 wolves in 2010 to 4 today. The loss of any wolves in Oregon represents a serious setback to their recovery and may exacerbate conflict, which will diminish my opportunity to enjoy wolves and their effects in the wilds of Oregon. 9. If t.he ODFW kills two wolves as planned, it will deprive me, NE Oregon Ecosystem members, Oregon Wild and its other members of aesthetic, spiritual, ecological, and recreational benefits derived from the species and its habitat. I hereby declare that the above statement is true to the best of my knowledge and belief, and that I understand it is made for use as evidence in court and is subject to penalty for perjury. Executed on October 4, 2011 in Joseph, Oregon. Walter H. Svk'es IV DECLARATION OF WALTER SYKES Page 4 of 4 Case 6:16-cv-00177-MC Document 27-1 Filed 10/31/16 Page 43 of 51 • • IN THE COURT OF APPEALS OF THE STATE OF OREGON CASCADIA WILDLANDS an Ore on non-~profit co rp oration; CENTER F~R BIOLOGICAL DIVERSITY, a New Mexico non-profit co rp oration; and OREGON WILD, an Oregon non-profit corporation, Petitioners, vs. OREGON FISH AND WILDLIFE COMMISSION, an agenc of the State of Oregon; and OREGONy DEPARTMENT OF FISH AND WILDLIFE, an agency of the State of Oregon, Responden CA A DECLARATION OF DANIEL KRUSE I, DANIEL KRUSE, being an officer of this Court, declare as follows: 1. I am the Attorney for Petitioners in this case. I make this declaration based upon my own personal knowledge. 2. To the best of my knowledge, attached to this declaration are true and correct copies of the following documents: Exhibit No. Description Excerpts from the Oregon Wolf Conservation and Management Plan (ODFW 2005) 2 Cattle Death Loss, National Agricultural Statistics Service (USDA 2006) DECLARATION OF DANIEL KRUSE Page 1 of 2 Case 6:16-cv-00177-MC Document 27-1 Filed 10/31/16 Page 44 of 51 f •• 1 ~ • I hereby declare that the above statement is true to the best of my knowledge and belief, and that I understand it is inade for use as evidence in court and is subject to penalty for perjury. Executed in Eugene, Oregon this 5th day of October, 2011. DWIEL KRUSE DECLARATION OF DANIEL KRUSE Page 2 of 2 Case 6:16-cv-00177-MC Document 27-1 Filed 10/31/16 Page 45 of 51 ^:• ~ `.•' ~~ :.•.i -• ̀~•M~ •~ ~~. :.•> ~.. ^,.~.. t OREGON DEPARTMENT OF FIS]H AND WILDLIFE DECEMBER 2005 PETITIONERS' EXHIBIT 1 Page 1 Case 6:16-cv-00177-MC Document 27-1 Filed 10/31/16 Page 46 of 51 • • December 1, 2005 Human attitudes toward wolves in North American have undergone significant changes during the second half of the 20 t ' century. Strong support for wolf conservation has been documented throughout the United States (Mech and Boitani 2003). Cultural influences such as popular literature, the work of researchers, and the voice of conservationists such as Aldo Leopold have provided information and support for conservation. A 1999 poll of Oregonians showed a 70 percent support rate for the return of wolves to the state.'' These changes in wildlife values are embodied in the federal Endangered Species Act (ESA) of 1973 and the Oregon ESA enacted in 1979. However, values and attitudes in the United States are complex and not homogenous. They depend on area of residence (rural-urban), occupation (agriculture/ natural resource-technical/service), and many other factors. Native American History' Wolves and native tribes coexisted for untold generations, not competing with one another, but complementing one another and adapting to an ever-changing seasonal system of events. As with other natural resources, tribal people learned the value of the wolves and revered them to a spiritual level. In tribal legends passed down through the generations, wolf, coyote and fox are related to one another and to the tribal peoples. Individual experiences with the wolf more often than not resulted in life-changing lessons. These experiences strengthened the connection between all surrounding events occurring within the natural world and helped maintain an order that everyone understood and respected. This order was circular, involving everyone and everSTthing, with no one part being of greater importance than another. Following the influence of early Euro-American values in the late 1700s and early 1800s toward natural resources, the order began to change. As one part of the order after another began to fall out of place, it disrupted the whole. Soon there was an imbalance, causing the values and relationships to one another to be weakened. The tribal people as well as others suffer today because of this disorder. To be able to maintain and re-learn the value of one another, the t~. -ibal people believe the wolf should have its place without limits or restrictions so that future generations may have a complete circle once again. Euro-American History As the 6rst European immigrants arrived in North America they brought with them an aversion for the wolf This prejudice was founded either by direct contact Nvith wolves in their homelands or was ingrained by their culture or religion. In fact, by the time inu -nigrants departed their homelands, the wolf had been eradicated from some of those areas due to suspicion and dislike for the animal. Once in North America, the immigrants found wolves to be a threat to their domesticated animals. Domesticated animals were a necessary part of Euro-American 1ife, not only to provide the food and the fiber needed for sustenance, but to provide transportation and the energy needed for tilling 12 Poll by Davis & Hibbitts, t',pril 1999. The poll was commissioned by the Oregon Natural Desert Association (ONDA), and paid for by ONDA, Defenders of Wildlife, Oregon Natural Resources Council, and Predator Defense Institute. The poll consisted of 500 five-minute phone interviews with individuals randon -Ay selected from statewide voter registration. Accuracy estimate is +/- 5 percent. 13 This section provided by WAC member Ken Hall, member of the Confederated Tribes of the Umatilla Indian Reservation. Oregon Wolf Conservation and Management Plan /Chaf~terl — Background Page 6 PETITIONERS' EXHIBIT 1 Page 2 Case 6:16-cv-00177-MC Document 27-1 Filed 10/31/16 Page 47 of 51 ~ December 1, 2005 Conservation of the gray wolf will be achieved through an approach that establishes objectives for wolf clistribution, population management, and monitoring. The objectives are as follows: • Permit establishment of a naturally reproducing wolf population in suitable habitat" within Oregon, connected to a larger source population of wolves, which allows for expansion into other areas of the state. • Promote social tolerance for wolves by effectively and responsibly addressing conflict with competing human values through the use of management measures consistent with long- term wolf conservation in all phases of wolf management status under this plan. • Set separate population objectives for two regions of the state: east and west of a line defined by U.S. Highway 97, U.S. Highway 20, and U.S. Highway 395 (see Figure 1: Divide Between East and West Wolf Management Areas). • Set a conservation population objective for eastern Oregon of four breeding pairs of wolves present for three consecutive years (a breeding pair is a pack of wolves with an adult male and an adult female with at least two pups surviving to the end of December (see page 26). • Set a management population objective for eastern Oregon of seven breeding pairs of wolves present for three consecutive years. • Protect wolves entering western Oregon, following delisting, under a management regime that replicates Oregori ESA protections. • Set a conservation population objective for western Oregon of four breeding pairs of wolves present for three consecutive years. • Set a management population objective for western Oregon of seven breeding pairs of wolves present for three consecutive years. • Deteixnine the status of the wolf population in Oregon through a comprehensive monitoring program. • Develop and implement agreements with other agencies and/or organizations to help achieve wolf conservation. '-'- Suitable habitat (e.g., high, medium, low suitability) is defined by factors including availability of natural prey, level of human occupation, level of livestock activity, and density of open roads. As habitat generalists, wolves are able to survive in many places. Therefore, unsuitable habitat likely will be defined by human tolerance. Without specific data or experience with wolves on the Oregon landscape, defuiing the range of habitat suitability must be necessarily vague at this point in time. Oregon Wolf Conservation and Management Plan /Chapterll — Wolf Conreroation Page 16 PETITIOIVERS' EXHIBIT 1 Page 3 Case 6:16-cv-00177-MC Document 27-1 Filed 10/31/16 Page 48 of 51 . ~ . '• ~ ~ ~ Decemher >, 2005 Phase III management activities will be directed toward ensuring the wolf population does not decline below Phase II levels and that wolves do not climb to unmanageable levels that cause conflicts with other land uses. This phase provides for maintenance of wolf numbers. Setting a maximurn population level for wolves in Oregon during this initial wolf planning effort may be premature. The Phase III management level is not intended as a population cap. As wolves become established in the state, wolf managers will be collecting data on wolf movements, pack home ranges, and other population parameters. This information, coupled with data regarding wolf conflicts, could be used to set maxirnum population levels in the future, depending on the circumstances at the time. A new planning effort based on wolf information specific to Oregon could be undertaken at that time. Conservation Population Objective The conservation population objective for Oregon is defined as four breeding pairs of wolves present for three consecutive years in eastern Oregon. This population objective represents a sufficient number of wolves to ensure the natural reproductive potential of the wolf population is not in danger of failure. This number also represents the point at which the plan recommends iniriating the process to consider delisting. In order to ensure four breeding pairs for three consecutive years, additional wolves `vould need to be present to replace natural losses of breeding adults. ODFW will use the federal definition of a wolf breeding pair because it provides a higher level of certainty in assessing the population status and documenting successful reproduction. This conservation population objective is based on the prediction that, if the protections of the Oregon ESA are withdrawn when four breeding pairs have been present for three consecutive years in eastern Oregon, a naturally self-sustaining population of wolves would continue to exist in Oregon. This will support the necessary findings on the delisting criteria, justifying a Commission decision to delist the species. Management Population Objective Once the conservation population objective is met, management will be directed toward achieving the management population objective of seven breeding pairs present for three consecutive years. The management population objective is intended to ensure maintenance of the wolf population. Achieving this objective will provide a high level of assurance that the wolf population will not decline. Once this population objective has been achieved, further population goals (higher or lower) will be defined through ODFW's normal rule-making process based on available data and public input. The status of wolves in Oregon will be expressed as the nurnber of breeding pairs until the management population objective is met. After the management population objective is met, monitoring methods will transition to enumerating wolf packs rather than breeding pairs to reduce monitoring costs. General Discussion of Wolf Population Objectives One of the main challenges for wolf planners in Oregon has been estimating the number and distribution of wolves sufficient to achieve conservation of wolves in Oregon and satisfy state delisting criteria, while protecting the social and economic interests of all Oregonians. Setting Oregon Wolf Conservation and Management Plan /Chapterll — Wolf Conseivation Page 27 PETITIONERS' EXHIBIT 1 Page 4 Case 6:16-cv-00177-MC Document 27-1 Filed 10/31/16 Page 49 of 51 • • ,G UL2. Cattle Death Loss ~~ ~ NATIONAL < ~~~ *~ AGRICULTURAL STATISTICS ~ Q ~ ~ C' SERVICE May 8, 2006 USDA, NASS, Oregon Field Office PRESS RELEASE 1220 SW 3 °° Ave., Room 1735 Intemet-www.nass.usda.gov/or Portland, Oregon 97204 Email: nass-orfd;nass.usda. ov (503) 326-2131 or 1-800-338-2157 This report is excerpted from a National report on cattle death loss. These data were collected as part of a special component of NASS's January Cattle Sutvey. The effort is a cooperative agreement behveen NASS and the Animal and Plant Health [nspection Service - Wildlife Services. Losses of cattle and calves: Inventory, and total loss by category, Idaho, Oregon, Washine-ton, and United States, 1995, 2000, and 2005 January I t ILosses of cattle and calves State/year inventory Predators 2 Non-predators 3 All causes' Cattle Calves Cattle Calves Cattle Calc•es Cattle Calves Hrod H od Hcod Hcad H ad Head Heod Head ]daho 1995 1,595,OD0 225,000 300 1,300 25,700 50,700 26,000 52,000 2000 1,720,000 240,000 300 2,300 - 2005 1,835,000 285,000 500 2,000 41,500 61,000 42,000 63,000 Oregon 1995 1,365,000 225,000 300 4,400 27,700 45,600 28,000 50,000 2000 1,200,000 160,000 300 4,100 2005 1,270,000 170,000 400 4,100 22,600 37,9D0 23,000 42,000 Waslungton 1995 1,088,000 182,000 200 1,000 21,800 28,000 22,000 29,000 2000 1,026,000 154,000 600 1,600 - - 2005 969,000 151,000 900 1,600 20,100 21,400 ' 21,000 . 23,000 Pacific NW ' 1995 4,048,00D 632,000 800 6,700 75,200 124,300 76,000 131,000 2000 3,946,000 554,000 1,200 8,000 - 2005 4,074,000 606,000 1.S00 7,700 84,200 120,300 86,000 128,000 United States 1995 85,164,300 18,383,900 21,200 96,200 1,613,900 2,649,100 1,635,100 2,745,300 2000 81,081,500 16,216.000 21,000 126,000 2005 81,475,200 15,626,300 34,000 156,000 1,683,000 2,178,000 1,717,000 2•334,000 ' Inventory reference date is January 1 or the following year. '- The category ofunlrnown predators uas not included in totals prior to 2005. ' Non-predator loss and total loss categories not published in 2000. 4 PaciGc NW includes Idaho, Oregon, and Washinglon. Losses of cattle and calves: Value per head and total loss value by category, Idaho, Oreaon, WashinQton, and United States, 1995, 2000, and 2005 VaIue pcn cead Tota! value Predator losses Non-predator losses t Statc/year Cattle Calves' Cattle Calves Cattle Calves wrmrs o~uars r,no~darr s t,onndorran t,00ndorran f,000vllars ' Idaho 1995 655 273 197 355 16,834 13,841 2000 706 275 212 632 - 2005 985 378 493 756 40,878 23,058 Oregon 1995 620 305 186 1,342 17,174 13,908 2000 663 279 200 1,144 - 2005 966 357 386 1,464 21,832 13,530 Washingfon 1995 745 275 149 275 16,241 7,700 2000 720 290 432 465 - 2005 1.030 357 927 600 20,703 8,025 Pacific NW ~ 1995 - - 532 1,972 50,249 35,449 2000 844 2,241 2005 1,806 2,820 • 83,413 44,613 United Stales 5 1995 6 13,053 26,510 1•012,367 749,472 2000 644 302 13,524 38,113 2005 970 396 31,587 G1,o87 1,634,747 863,828 ' Non-predator loss data not published in 2000. ' Cattle value per head is based on a two-year stnight average of the value of beef cows reported in the January 1 Cattle survey from 2005 and 2006. 3 Calf value per head is based on the market year average calf price. An average weight of 300 pounds was used in all States. ' PaciFic tdW includes Idaho, Oregon, and Washington. 5 US value per head derived and rounded to the nearest doilar• 6 Value per head for the US not published in the 1995 release. PETITIONERS' EXHIBIT 2 Page 1 Case 6:16-cv-00177-MC Document 27-1 Filed 10/31/16 Page 50 of 51 Losses of cattle and calves: Head iost and percent of total by predator, Idaho, Oregon, Washington, and United States, 1995, 2000, and 2005 12 Type of predator All Coyotes Dogs A4ountain lier.s and bobcats Otheror 3 unlmown predators State/year predators Head % of all Head % of all Head % of all Head % of all Head lost predators lost predators lost predators lost predators lost All cattle over 500 pounds Idaho 1995 100 33.3 - - 100 333 300 2000 100 33.3 100 33.3 100 33.3 300 2005 - - - - - 500 100.0 500 Oregon 1995 100 33.3 - 100 33.3 100 33.3 300 2000 100 33.3 - 100 33.3 100 33.3 300 2005 100 25.0 200 50.0 - 400 Washington 1995 - - - 100 50.0 200 2000 l00 16.7 500 83.3 - 600 2005 - - 200 22.2 700 77.8 900 United States 1995 7,650 36.1 3,450 16.3 1,750 8.3 8,350 39.4 21,200 2000 8,000 38.1 5,000 23.8 3,000 14.3 5,000 23.8 21,000 2005 11,000 32.4 4,400 12.9 3,200 9.4 15,400 45.3 34,000 Calves under 500 pounds Idaho 1995 800 61.5 100 7•7 100 7.7 300 23.1 1,300 2000 1,600 69.6 100 4.3 300 13.0 300 13.0 2,300 2005 600 30.0 100 5.0 200 10.0 1,100 55.0 2,000 Oregon 1995 3,300 75.0 500 11.4 300 6.8 300 6.8 4,400 2000 3,200 78.0 200 4.9 500 12.2 200 4.9 4,100 2005 2,200 53.7 - 1,300 31.7 500 12.2 4,100 Washington 1995 800 80.0 100 10.0 - 100 10.0 1,000 2000 700 43.8 200 12.5 500 31.3 200 12.5 1,600 2005 600 37.5 - - 600 37.5 400 25.1 1,600 United States 1995 61,700 64.1 18,350 19.1 6,300 6.5 9,850 10.2 96,200 2000 87,000 69.0 21,000 16.7 8,000 6.3 10,000 7.9 126,000 2005 86,000 55.1 17,500 112 11,500 7•4 41,000 26.3 156,000 ~ Missing data for a State represents less than 100 head or is not published to avoid disclosure of individual operations. ' Totals may not add due to categories not published. 3 The category of un}:nown predators was not summarized or included in totals prior to 2005. Losses of cattle and calves: Head lost by non-predator catlOries, Idaho. Oregon. Washintrton. and United States. 2005 Non-predator catenory Idaho Oregon Washington United States Cattle Calves Cattle Calves Cattle Calves Cattle Calves , Head Heod Head Head Hend Head Heod Heed Digestive proble.-ns 3,200 20,000 1,600 9,700 4,000 5,200 186,000 462,000 Respiratoryproblems 6,900 19,600 7,500 12,600 3,000 8,500 418,000 692,000 Metabolicproblems 1,800 1,700 300 2,600 300 60,000 18,000 Mastitis 1,500 - 1,700 - 1,400 - 67,000 - Otherdiseases 2,100 2,500 1,600 900 1,200 400 97,000 77,000 Lameness/injury 2,600 500 1,600 1,200 2,400 300 90,000 42,000 Weatherrelated 200 1,100 200 1,400 300 S00 110,000 165,000 Calvingprobletns 3,300 5,900 1,400 6,900 1,300 3,200 187,000 385,000 Poisoning 500 300 400 600 100 23,000 16,000 Thefl 100 100 - 100 300 - 10,000 11,000 Other non-predator 2,000 1,000 27200 S00 1,400 700 211,000 60,000 Unknoum non-predator 17,300 10,000 2,700 3,500 2,100 2,000 224,000 250,000 Total non-predator 41,500 61,000 22,600 37,900 20,100 21,400 1 1,683,000 2,178,000 ' b4issing data are less than 100 head for the State or not pttblished to avoid disclosure of individual operations. For more details, please contact the Oregon Field OfFce ofUSDA, NASS at (503) 326-2131 or 1-800-338-2157 or via email at nass-0r@nass.usda.gov . Inforrnation is also available on our home page: t»vw.nass.usda gov/or. PETITIONERS' EXHIBIT 2 Page 2 Case 6:16-cv-00177-MC Document 27-1 Filed 10/31/16 Page 51 of 51 EXHIBIT B Case 6:16-cv-00177-MC Document 27-2 Filed 10/31/16 Page 1 of 3 Search UPDATE March 31, 2016: The four wolves of the Imnaha pack associated with recent depredations were shot and killed today by ODFW staff on private land in Wallowa County. Oregon Department of Fish and Wildlife » ODFW Home » ODFW News Releases Buy a License Hunter Reporting Maps News Releases ODFW Jobs Public Meetings Division Home Page Division Directory Fish Hatcheries Fish Programs Local Fisheries Division Home Page Division Directory Grants / Incentives Wildlife Areas Wildlife Habitat Wildlife Programs About ODFW Budget Commission Contact us Director's office Economic impact History Jobs Key Performance Measures ODFW policies OR Administrative Rules (OARs) Photo/video gallery Public record requests Social Media Volunteering Fishing Resources Angler education/events Columbia River Commercial Crabbing/clamming Fish counts Learn to fish Recreation Report Regulations/updates Saltwater Stocking schedule Salmon/steelhead Trout Warmwater Where & how Hunting Resources Big game Controlled hunts Furbearers/trapping Hunter education & events Opportunities for youth Recreation Report Regulations Reporting Upland Game Birds Waterfowl Wildlife management Where & how Viewing Resources Photo/video gallery Recreation Report Support wildlife Viewing Map Visitor's Guide Wildlife species Licenses & Regulations Buy online Commercial Controlled hunts Forms/applications/permits Licenses & fees License sales locations Regulations Reporting Youth Conservation Resources Conservation Newsletter Conservation Strategy Fish conservation & recovery Invasive species Marine reserves Nearshore Strategy Oregon Plan Sensitive species Threatened/endangered species Wildlife habitat Wildlife management Wildlife species Living with Oregon Wildlife Injured/young wildlife Wildlife control operators Wildlife diseases Wildlife rehabilitation Learn to fish Learn to hunt Calendar of classes / events Hunter education Shooting/archery ranges Trapper education About ODFW Outdoors ODFW RESOURCES News Releases Depredations lead to lethal control for wolves in Wallowa County Tweet March 31, 2016 SALEM, Ore.— ODFW has confirmed five livestock depredation incidents on private land within the past three weeks by some wolves in the Imnaha pack, despite continued efforts by ODFW, Wallowa County officials, and area livestock producers to deter wolf-livestock conflict with non-lethal measures. With the pack now involved in chronic livestock depredation and as part of implementation of Oregon Wolf Conservation and Management Plan provisions, ODFW will lethally remove depredating wolves to reduce the likelihood of further losses. Information from two collared wolves--OR4, the alpha male and OR39, the alpha female--indicate that they and another two younger wolves have regularly used an area of private land on the westernmost portion of their known home range. While infrequent visits were historically made to the area by this pack, the near continual use of the area at this time of year is a marked departure from the pack’s normal pattern. Coinciding with this changed pattern, ODFW documented livestock depredation by the pack in investigations on March 9, March 25, two more (see report 1 and 2) on March 28 and one more on March 30. ODFW received a lethal order request after the March 9 depredation, but did not authorize it. At that time, the Imnaha Pack had not been involved in depredation since the previous October and ODFW didn’t characterize the situation as chronic. That changed when the pack killed or injured livestock in four additional incidents over the past week, bringing the total to six separate incidents within five months. ODFW received another lethal order request after the March 25 depredation. “Unfortunately members of the Imnaha wolf pack are once again involved in chronic livestock depredation, and ODFW is adhering to the Plan and protecting the interests of area livestock producers,” said Russ Morgan, ODFW wolf coordinator. “Spring is typically the time when depredation increases. Even more cattle and sheep will be on these private lands soon as calving and lambing season continues, increasing the risk for even more losses from this group of depredating wolves.” Under the rules associated with the Wolf Plan in Phase II, ODFW can authorize lethal control of wolves at a property owner or permittee’s request if a) the agency confirms at least two depredations on livestock in the area; b) the requester has documented unsuccessful attempts to solve the situation through non-lethal means; c) no identified circumstance exists that attracts wolf-livestock conflict; and d) the requester has complied with applicable laws and the conditions of any permit. In the current Wallowa County situation, non-lethal measures were being used when the depredations occurred and there were no bone piles or other attractants present. The preventive measures for the sheep producer included midnight spotlighting, three livestock protection dogs with the sheep 24 hours per day, three-per-day checks of livestock and a range rider patrolling the area and hazing the wolves when found. For cattle, delayed pasture rotation to keep animals closer to a public road, pasturing yearlings with cows, frequent checks in association with calving cattle, and patrolling/hazing by a range rider were used. While ODFW documented eight wolves in the Imnaha Pack for 2015, the department believes the pack has grown and that four of the wolves (the alpha male and female and two younger wolves) have separated from the rest of the pack. These four have been travelling together in this area and are associated with the four recent depredations on private land. Meanwhile, other members of the pack have been spending time in an area separated from the four depredating wolves. They are not known to be involved in the chronic depredation patterns and are not subject to the lethal control order. ODFW will focus lethal control efforts on the wolves linked to the depredations. Morgan believes the Imnaha group of wolves could be splitting up and that age and physical condition may be playing a role in the depredation. The alpha male is nearly 10 years old and the alpha female has been known to limp since she first appeared a few years ago. “As wolves grow old, or if they are injured, they are unable to hunt traditional wild prey as they have in the past,” said Morgan. “This could be playing a role in the pack’s recent behavior.” This will be the third time ODFW has used lethal control for wolves since they returned to the state in the early 2000s. Two wolves were killed after a number of losses in Baker County in 2009, and two wolves from the Imnaha pack were removed in 2011 due to chronic livestock depredation. Like 182 Share Page 1 of 2Depredations lead to lethal control for wolves in Wallowa County 9/23/2016http://dfw.state.or.us/news/2016/03_march/033116.asp Case 6:16-cv-00177-MC Document 27-2 Filed 10/31/16 Page 2 of 3 Despite today’s announcement, Oregon’s wolf population as a whole is growing. ODFW documented 110 known wolves at the end of 2015, a 36 percent increase over 2014. “This is the tough part of the job, but we believe lethal control is the right decision in this situation,” continued Morgan. “Wildlife managers must strike a balance between conserving wolves and minimizing impacts on livestock. This action in response to this situation will not affect the continued positive wolf population growth we are seeing across Oregon.” For more information on wolves, visit www.dfw.state.or.us/wolves ### Contact: Michelle Dennehy or Richard Hargrave Oregon Fish and Wildlife Michelle.N.Dennehy@state.or.us or Richard.J.Hargrave@state.or.us (503) 947-6022 or (503) 947-6020 About Us | Fishing | Hunting | Wildlife Viewing | License / Regs | Conservation | Living with Wildlife | ODFW Outdoors ODFW Home | Driving Directions | Employee Directory | Social Media | Oregon.gov | File Formats | Employee Webmail 4034 Fairview Industrial Drive SE :: Salem, OR 97302 :: Main Phone (503) 947-6000 or (800) 720-ODFW [6339] Do you have a question or comment for ODFW? Contact ODFW's Public Service Representative at: odfw.info@state.or.us Do you want to enter your opinion about a specific issue into the public record? Contact: odfw.comments@state.or.us Select Language  Powered by Translate © ODFW. All rights reserved. This page was last updated: 03/31/2016 3:18 PM Page 2 of 2Depredations lead to lethal control for wolves in Wallowa County 9/23/2016http://dfw.state.or.us/news/2016/03_march/033116.asp Case 6:16-cv-00177-MC Document 27-2 Filed 10/31/16 Page 3 of 3