IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
The Humane Society of the United States
2100 L Street NW
Washington, DC 20037;
Born Free, USA
1122 S Street
Sacramento, CA 95811;
Help Our Wolves Live (“HOWL”)
4901 Second Ave. South
Minneapolis, MN 55419;
Friends of Animals and Their Environment (“FATE”)
3333 Alabama Ave.
St. Louis Park, MN 55415,
Plaintiffs,
v.
Sally Jewell, Secretary of the Interior,
United States Department of the Interior
1849 C Street, NW
Washington, DC 20240;
United States Department of the Interior
1849 C Street, NW
Washington, DC 20240;
United States Fish and Wildlife Service
1849 C Street, NW
Washington, DC 20240,
Defendants.
Civil Action No. 13-00186-BAH
PLAINTIFFS’ REPLY
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
PLAINTIFFS’ MOTION FOR
SUMMARY JUDGMENT AND IN
OPPOSITION TO FEDERAL
DEFENDANTS’ AND HUNTER
CONSERVATION COALITION’S
CROSS-MOTIONS FOR
SUMMARY JUDGMENT
[ORAL ARGUMENT REQUESTED]
Case 1:13-cv-00186-BAH Document 41 Filed 01/12/14 Page 1 of 61
TABLE OF CONTENTS
Page
-i-
TABLE OF AUTHORITIES .......................................................................................................... i
I. INTRODUCTION ............................................................................................................. 1
II. ARGUMENT ..................................................................................................................... 3
A. The FWS Cannot Delist Wolves as a Western Great Lakes DPS .......................... 3
1. The Final Rule Improperly Modifies the Listing Status of the
Entire Lower 48 Wolf Population .............................................................. 3
2. The FWS Failed to Explain the Biological Relevance of its Newly
Designated Minnesota Population ............................................................. 6
3. The FWS’s Final Rule Creates a DPS In Order to Delist, Contrary
to the ESA and to the DPS Policy .............................................................. 8
4. The Solicitor’s Opinion Is Self-Serving, and Not Entitled to
Deference ................................................................................................. 12
5. Even if the FWS Could Use the DPS as a Delisting Tool, the
Boundaries of the Western Great Lakes DPS Are Arbitrary and
Capricious ................................................................................................ 14
6. Any DPS Designation Must Apply to A Single Identifiable
Species, But There is None for the Great Lakes DPS .............................. 16
B. The Gray Wolf Cannot Be Delisted Because It Remains in Danger of
Extinction Throughout a Significant Part of Its Range ........................................ 18
1. The FWS’s Interpretation of “Significant Portion of Its Range” Is
Unreasonable............................................................................................ 21
a) The ESA Mandates Consideration of Historical “Range” ........... 22
b) The FWS Cannot Render the Statutory Phrase “Significant
Portion” of the Range Superfluous .............................................. 26
2. The Case Law Does Not Support the FWS’s Interpretation that
Focuses on Current Range Only .............................................................. 27
3. The FWS Failed to Explain its Decision to Ignore the Gray Wolf’s
Lost Range As a Significant Portion of Its Range ................................... 30
4. The FWS Cannot Ignore the Requirement to Recover Wolves
Throughout a Significant Portion of Their Range By Carving Up
the Wolf’s Range into DPSs .................................................................... 34
C. The WGL DPS Does Not Satisfy the ESA’s Criteria for Delisting ..................... 38
1. The FWS Cannot Delist Wolves in the Great Lakes to Appease
Political Interests and in the Face of Taxonomic Uncertainty ................. 39
Case 1:13-cv-00186-BAH Document 41 Filed 01/12/14 Page 2 of 61
TABLE OF CONTENTS
(continued)
Page
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a) The FWS’s Delisting Decision is Based on Politics, Not
Science ......................................................................................... 39
b) The FWS Cannot Delist When It Does Not Know What
Species It Is Delisting .................................................................. 41
2. Wolves Remain Threatened by Inadequate Regulatory
Mechanisms to Protect them from Human-caused Mortality .................. 46
III. CONCLUSION ................................................................................................................ 52
Case 1:13-cv-00186-BAH Document 41 Filed 01/12/14 Page 3 of 61
i
TABLE OF AUTHORITIES
CASES
Am. Wildlands v. Norton,
193 F. Supp. 2d 244 (D.D.C. 2002) .......................................................................................... 17
Babbitt v. Sweet Home Chapter of Comys. for a Great Or.,
515 U.S. 687 (1995) ................................................................................................................. 21
Bennett v. Spear,
520 U.S. 154 (1997) .................................................................................................................. 18
Center for Auto Safety v. Peck,
751 F.2d 1336 (D.C. Cir. 1985) ................................................................................................ 43
Christensen v. Harris Cnty.,
529 U.S. 576 (2000) ................................................................................................................. 12
Colorado River Cutthroat Trout v. Salazar,
898 F. Supp. 2d 191 (D.D.C. 2012) .......................................................................................... 27
Conner v. Burford,
848 F.2d 1441 (9th Cir. 1986) .................................................................................................. 45
Ctr. for Biological Diversity v. Lubcheno,
758 F. Supp. 2d 945 (N.D. Cal. 2010) ...................................................................................... 32
Davis County Solid Waste Mgmt. v. EPA,
101 F.3d 1395 (D.C.Cir.1996) .................................................................................................. 24
Defenders of Wildlife v. Babbitt,
No. 1:97-CV-02122-GK (D.D.C. Dec. 22, 1997) .................................................................... 40
Defenders of Wildlife v. Hall,
807 F. Supp. 2d 972 (D. Mont. 2011)....................................................................................... 50
Defenders of Wildlife v. Kempthorne,
Civ. No. 04–1230 (GK), 2006 WL 2844232 (D.D.C. Sept. 29, 2006) ..................................... 33
* Defenders of Wildlife v. Norton,
239 F. Supp. 2d 9 (D.D.C. 2002) ....................................................................................... passim
* Defenders of Wildlife v. Norton,
258 F.3d 1136 (9th Cir. 2001) ........................................................................................... passim
Defenders of Wildlife v. Norton,
89 Fed. Appx. 273, 2004 U.S. App. LEXIS 7502 (D.C. Cir. 2004) ......................................... 19
Defenders of Wildlife v. Salazar,
729 F. Supp. 2d 1207 (D. Mont. 2010).............................................................................. passim
* Defenders of Wildlife v. Sec'y, U.S. Dep't of the Interior,
354 F. Supp. 2d 1156 (D. Or. 2005) .................................................................................. passim
Defenders of Wildlife, et al. v. Salazar, et al.,
No. 1:12-cv-01833-ABJ (D.D.C. Nov. 13, 2012) .................................................................... 48
Friends of Blackwater v. Salazar,
691 F.3d 428 (D.C. Cir. 2012) ...................................................................................... 10, 28, 45
Friends of the Earth v. Laidlaw Envtl. Serv.,
528 U.S. 167 (2000) ................................................................................................................. 50
* Friends of Wild Swan, Inc. v. U.S. Fish & Wildlife Serv.,
12 F. Supp. 2d 1121 (D. Or. 1997) .................................................................................... passim
Case 1:13-cv-00186-BAH Document 41 Filed 01/12/14 Page 4 of 61
ii
Fund For Animals, Inc. v. Hogan,
428 F.3d 1059 (D.C. Cir. 2005) ................................................................................................ 40
Greater Yellowstone Coal. v. Servheen,
672 F. Supp. 2d 1105 (D. Mont. 2009) aff’d in part, rev’d in part, and remanded, 665
F.3d 1015 (9th Cir. 2011) ................................................................................................... 37, 43
Greater Yellowstone Coal., Inc. v. Servheen,
665 F.3d 1015 (9th Cir. 2011) ................................................................................ 18, 37, 46, 47
* Humane Soc’y of the United States v. Kempthorne,
579 F. Supp. 2d 7 (D.D.C. 2008) ....................................................................................... passim
Humane Soc’y of U.S. v. Kempthorne,
481 F. Supp. 2d 53 (D.D.C. 2006) vacated sub nom. Humane Soc. of U.S. v.
Kempthorne, 527 F.3d 181 (D.C. Cir. 2008) ...................................................................... 49, 51
Humane Soc’y v. Dep’t of Commerce,
432 F. Supp. 2d 4 (D.D.C. 2006) .............................................................................................. 42
In re Polar Bear Endangered Species Act Listing & Section 4(d) Rule Litig.--MDL No.
1993,
709 F.3d 1 (D.C. Cir. 2013) cert. denied, 134 S. Ct. 310 (U.S. 2013) ..................................... 51
Int’l Bhd. of Elec. Workers v. NLRB,
814 F.2d 697 (D.C. Cir. 1987) .................................................................................................. 25
Konstantinidis v. Chen,
626 F.2d 933 (D.C. Cir.1980) ................................................................................................... 29
Lands Council v. McNair,
537 F.3d 981 (9th Cir.2008) ..................................................................................................... 43
Moses v. Howard Univ. Hosp.,
567 F. Supp. 2d 62 (D.D.C. 2008) amended, 601 F. Supp. 2d 1 (D.D.C. 2009) and
aff'd, 606 F.3d 789 (D.C. Cir. 2010) ......................................................................................... 29
Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29 (1983) ......................................................................................................... 8, 21, 43
Nat’l Ass’n of Home Builders v. Norton,
340 F.3d 835 (9th Cir. 2003) ................................................................................................ 9, 30
Nat’l Wildlife Fed’n v. Norton,
386 F. Supp. 2d 553 (D. Vt. 2005) ......................................................................... 14, 21, 32, 39
Nat'l Ass'n of Home Builders v. Norton,
325 F.3d 1165 (9th Cir. 2003) .................................................................................................. 30
Natural Res. Def. Council v. Kempthorne,
506 F. Supp. 2d 322 (E.D. Cal.2007) ....................................................................................... 47
New Hampshire v. Maine,
532 U.S. 742 (2001) ........................................................................................................... 29, 30
NW Coalition v. EPA,
544 F.3d 1043 (9th Cir. 2008) .................................................................................................. 43
Presley v. Etowah County Comm'n,
502 U.S. 491 (U.S. 1992) ......................................................................................................... 44
Royal Foods Co. v. RJR Holdings, Inc.,
252 F.3d 1102 (9th Cir. 2001) .................................................................................................. 12
Safari Club Int’l v. Jewell,
11-CV-01564 BAH, 2013 WL 4041541 (D.D.C. Aug. 9, 2013) ............................................. 40
Case 1:13-cv-00186-BAH Document 41 Filed 01/12/14 Page 5 of 61
iii
Save Our Springs Alliance v. Norton,
361 F. Supp. 2d 643 (W.D. Tex. 2005) .................................................................................... 11
Save Our Springs v. Babbitt,
27 F. Supp. 2d 739 (W.D. Tex.1997) ....................................................................................... 41
Tenn. Valley Auth. v. Hill,
437 U.S. 153 (1978) .......................................................................................................... passim
Tucson Herpetological Soc’y. v. Salazar,
566 F.3d 870 (9th Cir. 2009) .............................................................................................. 19, 32
United Gas Imp. Co. v. Continental Oil Co.,
381 U.S. 392 (1965) ................................................................................................................... 3
W. Watersheds Project v. Ashe,
4:11-CV-00462-EJL, 2013 WL 2433370 (D. Idaho June 4, 2013) .......................................... 27
WildEarth Guardians v. Salazar,
741 F. Supp. 2d 89 (D.D.C. 2010) ................................................................................ 32, 49, 50
Wildearth Guardians v. U.S. Sec’y of the Interior,
4:08-CV-00508-EJL-LM, 2011 WL 1225558 (D. Idaho Feb. 11, 2011), report and
recommendation adopted, 4:08-CV-00508-EJL-LM, 2011 WL 1225547 (D. Idaho
Mar. 28, 2011) .................................................................................................................... 11, 32
Wildlife Federation v. Nat’l Marine Fisheries Serv.,
524 F.3d 917 (9th Cir.2008) ..................................................................................................... 31
STATUTORY AUTHORITIES
16 U.S.C. § 1531(b) ...................................................................................................................... 24
16 U.S.C. § 1532 ............................................................................................................................. 6
16 U.S.C. § 1532(16) .......................................................................................................... 1, 11, 34
16 U.S.C. § 1532(20) .................................................................................................... 1, 22, 24, 35
16 U.S.C. § 1532(5)(A)................................................................................................................. 24
16 U.S.C. § 1532(6) ............................................................................................................... passim
16 U.S.C. § 1533(a) ........................................................................................................................ 1
16 U.S.C. § 1533(a)(1) ........................................................................................................... passim
16 U.S.C. § 1533(a)(1)(D) ............................................................................................................. 46
16 U.S.C. § 1533(a)(1)(E) ............................................................................................................. 46
16 U.S.C. § 1533(a)(3)(A) .............................................................................................................. 5
16 U.S.C. § 1533(b)(1)(A) ............................................................................................. 1, 18, 39, 41
16 U.S.C. § 1533(b)(3)(A) ...................................................................................................... 11, 40
16 U.S.C. § 1533(b)(3)(B) ...................................................................................................... 11, 40
16 U.S.C. § 1533(c) ....................................................................................................................... 39
16 U.S.C. § 1533(c)(2)(B) ...................................................................................................... 4, 6, 9
16 U.S.C. § 1539(j) ....................................................................................................................... 13
16 U.S.C. § 1539(j)(2)(A) ............................................................................................................. 23
Public Law 81-135 § 3(a) (1969) .................................................................................................. 25
Public Law 89-669 § l(c) (1966) ................................................................................................... 25
REGULATIONS
43 Fed. Reg. 9,607 ................................................................................................................. passim
43 Fed. Reg. 9,608 ........................................................................................................................... 7
43 Fed. Reg. 9,610 ........................................................................................................................... 7
Case 1:13-cv-00186-BAH Document 41 Filed 01/12/14 Page 6 of 61
iv
43 Fed. Reg. 9,612 .......................................................................................................................... 5
50 C.F.R. § 424.11(b) .................................................................................................................... 39
50 C.F.R. § 424.11(c) .............................................................................................................. 39, 49
50 C.F.R. § 424.11(d) .................................................................................................................... 39
50 C.F.R. § 424.14 ........................................................................................................................ 11
50 C.F.R. § 424.14(b)(1) ............................................................................................................... 11
51 Fed. Reg. 6,686 ........................................................................................................................ 25
51 Fed. Reg. 6,688 ........................................................................................................................ 25
58 Fed. Reg. 34,926 ...................................................................................................................... 25
58 Fed. Reg. 34,928 ...................................................................................................................... 25
* 61 Fed. Reg. 4,722 .......................................................................................................................... 9
* 61 Fed. Reg. 4,725 .............................................................................................................. 7, 10, 13
68 Fed. Reg. 15,804 ................................................................................................................ 27, 44
68 Fed. Reg. 15,805 ................................................................................................................ 27, 44
68 Fed. Reg. 15806 ....................................................................................................................... 44
72 Fed. Reg. 6,052 .......................................................................................................................... 4
72 Fed. Reg. 6,073 ........................................................................................................................ 34
74 Fed. Reg. 15,070 ........................................................................................................................ 4
74 Fed. Reg. 15,075 ........................................................................................................................ 4
76 Fed. Reg. 26,090 ....................................................................................................................... 41
76 Fed. Reg. 61,782 ...................................................................................................................... 48
76 Fed. Reg. 61,802 ...................................................................................................................... 48
76 Fed. Reg. 66,255 ...................................................................................................................... 11
76 Fed. Reg. 76,987 ...................................................................................................................... 22
76 Fed. Reg. 76,988 ...................................................................................................................... 22
76 Fed. Reg. 81,666 .............................................................................................................. 4, 7, 31
76 Fed. Reg. 81,669 ................................................................................................................ 18, 42
76 Fed. Reg. 81,671 ................................................................................................................. 15, 33
76 Fed. Reg. 81,672 ................................................................................................................ 27, 31
76 Fed. Reg. 81,673 ...................................................................................................................... 15
76 Fed. Reg. 81,674 ................................................................................................................... 8, 15
76 Fed. Reg. 81,677 ...................................................................................................................... 45
76 Fed. Reg. 81,679 ...................................................................................................................... 45
76 Fed. Reg. 81,682 ............................................................................................................... passim
76 Fed. Reg. 81,683 .......................................................................................................... 31, 33, 47
76 Fed. Reg. 81,686 ................................................................................................................ 36, 47
76 Fed. Reg. 81,687 ...................................................................................................................... 17
76 Fed. Reg. 81,688 ...................................................................................................................... 17
76 Fed. Reg. 81,690 ...................................................................................................................... 15
76 Fed. Reg. 81,692 ...................................................................................................................... 36
76 Fed. Reg. 81,700 ....................................................................................................................... 51
76 Fed. Reg. 81,709 ................................................................................................................ 47, 48
76 Fed. Reg. 81,713 ...................................................................................................................... 47
76 Fed. Reg. 81,721 ................................................................................................................ 17, 28
76 Fed. Reg. 81,722 ................................................................................................................ 23, 26
78 Fed. Reg. 35,664 ........................................................................................................................ 8
Case 1:13-cv-00186-BAH Document 41 Filed 01/12/14 Page 7 of 61
v
78 Fed. Reg. 35,670 ...................................................................................................................... 42
OTHER
H.R. Rep. No. 412, 93rd Cong., 1 Sess. (1973) ...................................................................... 19, 25
H.R. Rep. No. 95-1625, 95th Cong., 2d Sess. at 5 (Sept. 25, 1978), reprinted in 1978
U.S.C.C.A.N. 9455 ............................................................................................................. 24, 25
H.R. Rep. No. 97-567 at 17 (May 17, 1982), reprinted in 1982 U.S.C.C.A.N. 2807 ................... 23
Merriam-Webster Collegiate Dictionary, 11th Ed. ....................................................................... 35
Case 1:13-cv-00186-BAH Document 41 Filed 01/12/14 Page 8 of 61
1
I. INTRODUCTION
Try as they might, Federal Defendants simply cannot escape the reality that the U.S. Fish
and Wildlife Service’s (“FWS” or “Agency”) decision to strip wolves in the Western Great
Lakes (“WGL”) of their federal Endangered Species Act (“ESA”) protections was driven by
politics. This reality, reflected in numerous documents in the record, colored every step along
the delisting process, from the FWS thumbing its nose at this Court’s remand order, to its
decision to delist wolves in the Great Lakes without first determining what species actually exist
inside and outside the boundary lines it created. But the ESA does not allow the FWS to avoid
hard questions for the sake of political convenience. Indeed, the ESA clearly mandates that the
FWS base its delisting decision “solely” on the basis of the best available science, 16 U.S.C. §
1533(b)(1)(A), and prohibits the FWS from using the distinct population segment (“DPS”)
provision of the statute as a tool to reduce protections for the wolf, especially when the wolf
remains imperiled throughout a significant portion of its range. Id. §§ 1533(a); 1532(6), (16),
(20). The FWS’s decision to delist the wolf in the Great Lakes contradicts each of these bedrock
ESA principles.
Federal Defendants do not contest – as they cannot – that wolves are largely absent from
ninety-five percent of their historical range. Instead, Federal Defendants myopically focus on a
population of wolves that exist in a portion of the Great Lakes region in an effort to defend the
FWS’s politically influenced decision to artificially shrink the wolf’s historical range to a tiny
fraction of what it was, draw a circle around that portion of the range, and remove federal ESA
protections from all wolves within that circle. But given the uncontested fact that the states within
that artificial circle are already executing plans to reduce current wolf populations in the region,
the Federal Defendants’ effort to carve out and delist a population of wolves from within the larger
Case 1:13-cv-00186-BAH Document 41 Filed 01/12/14 Page 9 of 61
2
area that wolves historically occupied, and in which they remain ESA-listed, will effectively halt
wolf recovery in its tracks.
The fact that wolves now exist in certain areas of Minnesota, Wisconsin, and Michigan,
and do not currently exist in other areas, does not mean that the FWS can lawfully strip wolves of
all federal protections at this time. There are legal considerations that must be satisfied, which go
beyond ticking off a box that a certain number of wolves has been reached. The Federal
Defendants broadly describe their inquiry in arriving at the Final Rule as “whether the Midwestern
populations of wolves met the recovery goals” of the Eastern wolf recovery plan to enable the
FWS to remove ESA protections from wolves in the Western Great Lakes. Federal Defs. Br.
(“Defs. Br.”), ECF No. 27 at 1 (emphasis added). But yet this simplistic and piecemeal approach
to the delisting determination formalized in the Final Rule demonstrates the problem with the
Agency’s decision making. Under a proper delisting analysis, the FWS must examine whether the
entire listed entity is threatened or endangered throughout a significant portion of its range,
including its historical range, and can only delist the species if it determines that all five categories
of threats set forth in Section 4(a)(1) of the ESA have been eliminated throughout that range. 16
U.S.C. §§ 1532(6); 1533(a)(1). But the Agency has not operated under the mandates of the ESA
or prior court decisions on these very same issues. Instead, the Agency has contravened the letter
and intent of the ESA by creating a DPS of a species for the sole purposes of delisting that portion
of the species from within a broader listing, and doing so in order to appease certain political
interests, in plain violation of the ESA’s language and guiding principles.
Apparently recognizing the vulnerability of the Agency’s decision in light of the relevant
law and facts, Federal Defendants attempt to distract this Court from the fundamental legal issues
at bar by trying to mask the true nature of the FWS’s action in semantics, and stating that Plaintiffs
Case 1:13-cv-00186-BAH Document 41 Filed 01/12/14 Page 10 of 61
3
have “suggest[ed] a preference for federal over state management” of wolves and that Plaintiffs
have sued Federal Defendants over “matter[s] of policy.” Defs. Br. at 1. Indeed, it is Federal
Defendants who as a matter of “policy” seem to be bound and determined to delist wolves in the
Great Lakes region, regardless of the legal contortions required to accomplish that end. E-mail
from Matthew C. Huggler, the FWS, to Dan Ashe, the FWS (Dec. 9, 2010, 9:10am), AR 79 at
002773A (“[The FWS] will always seek to remove wolves from ESA everywhere.”). Further, the
contention that Plaintiffs have a preference for federal over state management of wolf populations
both misstates Plaintiffs’ arguments and misses the point that Federal Defendants are the ultimate
responsible parties charged with carrying out and achieving the goals of the ESA, according to
congressional mandate. And as explained in Plaintiffs’ opening brief and here, the Agency has run
roughshod over the law and its obligations.
Based on the FWS’s multiple violations of its ESA mandates – any one of which requires
vacatur of the Final Rule – Plaintiffs request that this Court grant their request for summary
judgment and restore ESA protections to wolves in the Western Great Lakes.
II. ARGUMENT
A. The FWS Cannot Delist Wolves as a Western Great Lakes DPS
1. The Final Rule Improperly Modifies the Listing Status of the Entire
Lower 48 Wolf Population
The FWS’s Final Rule fails to comply with this Court’s remand order. But an agency
cannot ignore the directives of a court simply because it does not like the outcome. See, e.g.,
United Gas Imp. Co. v. Continental Oil Co., 381 U.S. 392, 406 (1965) (upon review of an
administrative decision, the court may “correct errors of law and on remand the [agency] is
bound to act upon the correction”) (citation omitted). In a thinly veiled attempt to avoid the ESA
Case 1:13-cv-00186-BAH Document 41 Filed 01/12/14 Page 11 of 61
4
construction proffered by this Court in Humane Soc’y of the United States v. Kempthorne, 579 F.
Supp. 2d 7, 17 (D.D.C. 2008) that “Section 1533(c)(2)(B) . . . quite strongly suggests –
consistent with common usage – that the listing of any species (such as the western Great Lakes
DPS) is a precondition to the delisting of that species,” Federal Defendants describe the Final
Rule not as a simultaneous listing and delisting of a DPS, but rather as a “revis[ion]” of the 1978
listing of the Minnesota population of gray wolves. Defs. Br. at 14, 15; 76 Fed. Reg. at 81,666.
This specious semantic trick should not detain the Court.
In 2007, the FWS attempted to simultaneously create and delist a Western Great Lakes
DPS. See Final Rule, 72 Fed. Reg. 6,052 (Feb. 8, 2007) (“establish[ing] the Western Great
Lakes (WGL) [DPS] . . . [and] remov[ing] the WGL DPS from the List of Endangered and
Threatened Wildlife”). This final rule was struck down in Kempthorne, 579 F. Supp. 2d at 14
n.8, 20. After the 2007 rule was struck down, in 2009 the FWS published a final rule again
identifying a Western Great Lakes DPS and simultaneously removing its ESA protections. See
Final Rule, 74 Fed. Reg. 15,070 (Apr. 2, 2009) (identifying WGL DPS and “removing gray
wolves within [that DPS]” from ESA protection). In the final rule for the 2009 delisting attempt,
the FWS took issue with the Kempthorne opinion and that court’s indication that the FWS had
delisted a previously unlisted species. The FWS responded that “[it] did not delist a previously
unlisted species; rather, [it] revised the existing listing of a species (the gray wolf in the lower 48
States) to reflect a determination that a sub-part of that species (the Western Great Lakes DPS)
was healthy enough that it no longer needed the ESA’s protections.” 74 Fed. Reg. 15,075. In
other words, in the 2009 delisting rule, the FWS recognized that designating the Western Great
Lakes DPS required it to revise the lower 48 States’ species listing. See id.
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5
In this Final Rule, the FWS now has taken the same old action that it attempted before
under the new guise of “revising” the 1978 Minnesota threatened wolf population listing. Defs.
Br. at 9, 14-16; see also Final Rule, 43 Fed. Reg. 9,607, 9,612 (Mar. 9, 1978) (designating
“Minnesota” population as threatened).
Even suspending disbelief and accepting at face value that the FWS is simply “revising”
an already listed entity with this Final Rule, nevertheless, because the “revised” Minnesota
population listing now also includes other parts of the Great Lakes, specifically Wisconsin and
Michigan and parts of North and South Dakota, Iowa, Illinois, Indiana, and Ohio, the Final Rule
necessarily modifies not only the Minnesota threatened species listing but also and again the
lower 48 States gray wolf listing. This presents an additional reason why the Final Rule is
unlawful. The ESA requires that revisions to the List of Endangered and Threatened Wildlife be
made in accordance with ESA section 4(a), which sets forth the listing factors and the
requirement to designate critical habitat. See 16 U.S.C. § 1533(a)(1), (a)(3)(A). Because the
FWS has not evaluated the gray wolf’s status in the lower 48 States in relation to the ESA listing
factors nor designated critical habitat, the FWS’s purported revision to the Minnesota “species”
listing was arbitrary and capricious agency action and a violation of the ESA. See Defenders of
Wildlife v. Sec'y, U.S. Dep't of the Interior, 354 F. Supp. 2d 1156, 1171 (D. Or. 2005)
(“Defenders (wolf)”) (2003 rule downlisting gray wolves was arbitrary and capricious because
the FWS “did not apply the downlisting factors outside the core areas” as required by section 4
of the ESA).
Of course, the FWS’s authority to revise a listing only extends to species that are already
listed. Kempthorne, 579 F. Supp. 2d at 17 (noting that section 4(c) “instruct[s] [the] FWS
periodically to conduct a review of all species “included in a list, . . . which is in effect at the
Case 1:13-cv-00186-BAH Document 41 Filed 01/12/14 Page 13 of 61
6
time of such review,” and to determine whether any particular species should be “removed from
such list”) (citing 16 U.S.C. § 1533(c)(2)(B), emphasis by court). In order to avoid that problem
with its actions, Federal Defendants claim that what the FWS did was permissible because it was
merely revising an already listed entity – the Minnesota population. Defs. Br. at 16. But wolves
protected by the lower 48 States listing were included in the listed entities that this Final Rule
altered (as the FWS previously recognized in its 2009 delisting attempt). Even accepting the
FWS’s explanation of its action, because the Final Rule both revises the Minnesota listing and
changes the status of only some wolves in the lower 48 States listing, the Final Rule and the
FWS’s justification for it fly in the face of case law holding that the FWS cannot list something
below the DPS level. Defenders of Wildlife v. Salazar, 729 F. Supp. 2d 1207, 1221-22 (D. Mont.
2010) (“The words used in the ESA make clear that “species” excludes distinctions below that of
a DPS. . . . By listing and/or protecting something less than a DPS, the Service violated the plain
terms of the ESA.”) (citing 16 U.S.C. § 1532).
Because the Final Rule alters the status of some of the wolves protected by the lower 48
States species listing, and does so without conducting the requisite section 4(a) threats analysis to
that portion of the population, it violates the ESA and must be vacated.
2. The FWS Failed to Explain the Biological Relevance of its Newly
Designated Minnesota Population
Even if the FWS’s purported “revision” to the Minnesota population was appropriate –
which for the reasons stated above it was not – the Final Rule is arbitrary and capricious because
the FWS failed to explain the biological significance of the revised Minnesota population. In the
early 1970s, the eastern timber wolf was listed as an endangered species. See 43 Fed. Reg. at
9,607. In 1978, the FWS published a rule reclassifying the gray wolf at the species level (Canis
lupus) as endangered throughout the conterminous 48 States and Mexico and as threatened in
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Minnesota. Id. In that rule, the FWS recognized the catastrophic loss of the gray wolf’s range,
finding that the wolf’s historical range, which spanned “from Georgia to Maine, and between the
Atlantic and the Great Plains” had been reduced to northern Minnesota and the adjacent Isle
Royale National Park. Id. at 9,608, 9,610. Pursuant to that rule, the Minnesota wolves were listed
as a separate “species” and classified as threatened. Id. at 9,607, 9,610 (“For purposes of this
rulemaking, the gray wolf (Canis lupus) group in Mexico and the 48 conterminous States of the
United States, other than Minnesota, is being considered as one ‘species,’ and the gray wolf group
in Minnesota is being considered as another ‘species.’”).
Federal Defendants try to justify the Final Rule as a revision to the Minnesota “species”
listing because they claim that listing operated to make the Minnesota wolves a functional DPS,
although the listing was never formally reclassified from a species-level listing to a DPS-level
listing. Defs. Br. at 14 n.6. While it may be the case that a species-level listing enacted prior to the
ESA amendment that added the DPS concept could be recognized to have functioned as a DPS,
that does not alleviate the FWS’s burden to demonstrate that the population is formally and
biologically a DPS. See 61 Fed. Reg. at 4,725 (the FWS’s DPS policy requiring a population to be
discrete and significant). Here, the Agency has not explained how its new DPS boundaries
compare biologically to the rest of the lower 48 States species listing on which there is still an open
status review. See, e.g., 76 Fed. Reg. at 81,666 (referencing ongoing status review for wolves
outside the WGL DPS). As discussed in detail below, there is continuing taxonomic uncertainty
regarding what wolf species and subspecies exist and where, but to enable the Final Rule, the FWS
has ignored that major problem and simply declared that all wolves inside the DPS boundaries
directly up until the boundaries’ edges are Canis lupus, while simultaneously conducting review of
the lower 48 species listing outside that line to determine what species are captured therein, and
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despite including some wolves from the lower 48 endangered listing in the now-delisted WGL
DPS. See Proposed Lower 48 Delisting Rule, 78 Fed. Reg. 35,664 (Jun. 13, 2013) (the FWS
proposing to remove ESA protection for the gray wolf (Canis lupus) throughout the lower 48
states, with the exception of the Mexican wolf subspecies (C.l. baileyi), and recognizing Canis
lycaon as a separate species historically occurring in the Western Great Lakes).
Even a “functional equivalent” of a DPS must be a biologically independent population,
and the FWS must rationally explain how all wolves inside the DPS boundaries are biologically
distinct from all the wolves directly outside that line. Yet the FWS has failed to do so. This
failure to provide a rational explanation is not surprising, considering there is an open review on
the status of wolves just outside the DPS boundaries the FWS created, and the Agency’s
acknowledgment in the Final Rule that wolves can and do travel back and forth across that line.
See, e.g., 76 Fed. Reg. at 81,674. While it may not be surprising, such a failure violates
fundamental principles of administrative law that an agency “must examine the relevant data and
articulate 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. v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 43 (1983).
3. The FWS’s Final Rule Creates a DPS In Order to Delist, Contrary to
the ESA and to the DPS Policy
Despite Federal Defendants’ attempt to disguise the FWS’s actions in semantics, the fact
of the matter is that the Final Rule yet again simultaneously creates and delists a Western Great
Lakes DPS. The Final Rule’s action to create and delist a DPS of an otherwise imperiled species
is contrary to the DPS Policy. The fundamental purpose of a DPS is to protect and conserve
locally vulnerable populations of otherwise non-threatened species. This has been recognized by
multiple federal courts. For instance, the District of Oregon said that “[t]he purpose of the DPS
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Policy is to allow the FWS to list a DPS as threatened or endangered, and thereby provide a level
of protection that is different from other populations within the same species.” Defenders (wolf),
354 F. Supp. 2d at 1160 (citing DPS Policy, 61 Fed. Reg. at 4,722) (emphases added); id. at 1169
(“[I]f a distinct and significant population of an unlisted species is struggling while other
populations are faring well, the FWS may designate the struggling population as a DPS and list it
as endangered.”).
Likewise, this Court said that “the ‘DPS tool’ . . . permits FWS to ‘protect and conserve
species and the ecosystems upon which they depend before large-scale decline occurs that would
necessitate listing a species or subspecies throughout its entire range.” Kempthorne, 579 F.
Supp. 2d at 11 (citing DPS Policy) (emphasis added). See also Nat’l Ass’n of Home Builders v.
Norton, 340 F.3d 835, 842 (9th Cir. 2003) (under the DPS Policy “[t]he FWS does not have to
list an entire species as endangered when only one of its populations faces extinction”); Friends
of Wild Swan, Inc. v. U.S. Fish & Wildlife Serv., 12 F. Supp. 2d 1121, 1133 (D. Or. 1997) (the
“listing of population segments is a proactive measure to prevent the need for listing a species
over a larger range”) (emphasis in original).
Importantly, the DPS Policy itself provides that “[a]ny interpretation [of the term ‘distinct
population segment’] should also be aimed at carrying out the purposes of the Act.” 61 Fed.
Reg. at 4,722. While Federal Defendants point to the DPS policy to claim that the FWS can use
it to delist species, Defs. Br. at 20, the language in the DPS Policy is more naturally read to mean
that an already listed DPS can be delisted once it has recovered, which is consistent with the
ESA. This Court already held that “Section 1533(c)(2)(B) . . . quite strongly suggests –
consistent with common usage – that the listing of any species (such as the western Great Lakes
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DPS) is a precondition to the delisting of that species.” Kempthorne, 579 F. Supp. 2d at 17.
Indeed, the intended “[e]ffects of [the DPS] Policy” itself are
Listing, delisting, or reclassifying distinct vertebrate population segments [that] may
allow the Services to protect and conserve species and the ecosystems upon which they
depend before large-scale decline occurs that would necessitate listing a species or
subspecies throughout its entire range. This may allow protection and recovery of
declining organisms in a more timely and less costly manner, and on a smaller scale than
the more costly and extensive efforts that might be needed to recover an entire species or
subspecies. The Services’ ability to address local issues (without the need to list, recover,
and consult rangewide) will result in a more effective program.
DPS Policy, 61 Fed. Reg. at 4,725. This excerpt underscores that the intent behind the DPS
Policy is conservation, protection, and listing of vulnerable populations, rather than the delisting
of pockets of species that remain endangered or threatened. Federal Defendants argue that
Plaintiffs are adding an additional requirement into the process. Defs. Br. at 16-17. Federal
Defendants’ citation to Friends of Blackwater v. Salazar, 691 F.3d 428, 434 (D.C. Cir. 2012), is
unhelpful. In that case, the Court of Appeals for the District of Columbia Circuit simply stated
that the FWS need not follow a non-binding species recovery plan if some step in the plan
becomes irrelevant. See id. In contrast, what Plaintiffs contend is that the language and purpose
of the DPS Policy, where ambiguous, may not be interpreted by the FWS unreasonably or in any
manner running afoul of the ESA.
Federal Defendants also bizarrely suggest that their statutory obligation to respond to a
citizen’s listing petition somehow places the Agency’s conduct in response to such petition
beyond challenge, so that the Final Rule is lawful simply because it arose in response to citizens’
petitions. Defs. Br. at 17, 34. The notion is not credible on its face, or the Agency would be
nothing more than a ministerial agent for every petitioner seeking a listing change. But the
statutory and regulatory procedure provide for far more discretion on the Agency’s part. Under
the plain language of the statute, any “interested person” may petition the Secretary of the
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Interior to list a “species” as endangered or threatened. 16 U.S.C. § 1533(b)(3)(A); 50 C.F.R. §
424.14; see also 16 U.S.C. § 1532(16) (“species” may be a “distinct population segment”). “To
the maximum extent practicable, within 90 days after receiving [a] petition,” the FWS must
“make a finding as to whether the petition presents substantial scientific or commercial
information indicating that the petitioned action may be warranted.” 16 U.S.C. § 1533(b)(3)(A);
50 C.F.R. § 424.14(b)(1). If the Agency concludes in its 90-day finding that the action requested
in the petition may be warranted, then it must “promptly commence a review of the status of the
species concerned.” 16 U.S.C. § 1533(b)(3)(A). Thus while the ESA mandates that the FWS
respond to such petitions, the ESA does not mandate that the FWS approve or grant such
petitions. In fact, the FWS may respond that a petition is not warranted, is warranted but
precluded, or may be warranted. See 16 U.S.C. § 1533(b)(3)(A). And even in situations in
which the agency begins a status review of a species in response to a citizen’s petition, the
agency still has the discretion to deny a petition in its final 12-month determination. See id. §
1533(b)(3)(B) (in its 12-month determination, the agency can find listing is “not warranted” or
“warranted but precluded”).
The FWS has discretion in determining how to respond to petitions and has exercised that
discretion to deny petitions. See, e.g., Wildearth Guardians v. U.S. Sec’y of the Interior, 4:08-
CV-00508-EJL-LM, 2011 WL 1225558, at *9 (D. Idaho Feb. 11, 2011), report and
recommendation adopted, 4:08-CV-00508-EJL-LM, 2011 WL 1225547 (D. Idaho Mar. 28,
2011) (the FWS’s “rejection of Plaintiff’s petition was within the bounds of the APA and ESA”);
Save Our Springs Alliance v. Norton, 361 F. Supp. 2d 643, 649 (W.D. Tex. 2005) (finding the
FWS had set reasonable timetable to respond to petition and could delay issuance of its 12-
month findings); 76 Fed. Reg. 66,255 (Oct. 26, 2011) (the FWS’s 90-day finding that denied a
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petition to delist the coastal California gnatcatcher and declining to reclassify it as a DPS). The
obligation to respond to a citizen petition clearly does not lead to an obligation to grant a citizen
petition.
4. The Solicitor’s Opinion Is Self-Serving, and Not Entitled to Deference
In response to this Court’s opinion in Kempthorne, the Solicitor General wrote its
opposing views into an opinion on which the Agency relies here. Defs. Br. at 18-20. Federal
Defendants claim that the Court should defer to the Solicitor’s Opinion, but the document is not
deserving of deference. In Kempthorne, this Court found the ESA “ambiguous” with respect to
the issue of whether simultaneous listing and delisting of a DPS was permissible. 579 F. Supp.
2d at 17-18. The Court remanded the issue to the FWS to adopt an interpretation consistent with
the ESA. Id. at 20. The FWS claims that the 2008 Solicitor's Opinion provides such an
interpretation. Defs. Br. at 18-20. However, that Opinion does not address the FWS’s authority
to simultaneously list and delist species. Instead, it rejects the Court’s characterization of the
agency action at issue in Kempthorne and proceeds to analyze an entirely different question. See
Solicitor Op. at 2, AR 8 at 000492A (“While the Department acknowledges that the ESA is
arguably ambiguous on the ‘precise question’ posed by the court, it notes that the court’s
question does not accurately describe what the FWS did in the Final Rule.”) (emphasis added).
“An agency’s interpretation or regulation is given deference if . . . it is an opinion
expressed when the agency is regulating the precise question at issue.” Royal Foods Co. v. RJR
Holdings, Inc., 252 F.3d 1102, 1109 (9th Cir. 2001) (citing Christensen v. Harris Cnty., 529 U.S.
576, 586-88 (2000)). Federal Defendants’ suggestion that this Court must defer to the 2008
Solicitor’s Opinion, even though that memorandum does not address the issue in this case, is
unfounded. See id. (“[A] strong statement made in the course of discussing a wholly different
issue . . . does not constitute an agency interpretation that is entitled to deference in this setting.”)
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(emphasis in original). The Solicitor’s Opinion arguably only attempts to address the FWS’s use
of the DPS Policy to determine whether gray wolves in the Western Great Lakes area constitute a
DPS and then to revise the listing of the gray wolf in the lower 48 States based on its
determination that that DPS no longer met the definition of a threatened or endangered species.
Solicitor Op. at 2, AR 8 at 000492A. Therefore, the Solicitor’s Opinion does not address the
FWS’s actions in this Final Rule, which Federal Defendants assert is merely revising the listing
of the Minnesota population of gray wolves, and which ignores the lower 48 listed population.
Further, a review of the Solicitor’s Opinion reveals that it is not entitled to deference
because it is an unreasonable interpretation of the ESA. See, e.g., Defenders of Wildlife v.
Salazar, 729 F. Supp. 2d at 1226 (rejecting as unreasonable FWS’s interpretation of the ESA
because it “render[ed] the DPS concept superfluous and would allow the Service to protect
invertebrates and plants at a level Congress did not intend”). For instance, it relies on the
experimental population provisions of the ESA to support its position. Defs. Br. at 19. Under
those provisions, the FWS can introduce experimental populations “outside the current range of
the species if the Secretary determines that such release will further the conservation of such
species.” 16 U.S.C. § 1539(j). But these provisions are intended to recover a species, not to
offer a mechanism to delist isolated pockets of species – and they are wholly inapposite to the
issues here.
Moreover, the DPS Policy provides that a vertebrate population must be both
“significant” and “discrete” to be designated as a DPS. 61 Fed. Reg. at 4,725. Thus the DPS
Policy instructs that a DPS be designated only if the population segment is important enough to
warrant protection. Like the ESA’s restriction of the DPS tool to vertebrates, the DPS Policy’s
restriction of DPSs to “significant” populations makes no sense if this tool could be used, as
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Federal Defendants insist, to remove protections from a population already protected by a
species-level listing. Under such a theory, the DPS Policy would allow the removal of federal
protections from a “significant” population of an endangered species, while forbidding this
option for insignificant populations. This would create an absurd result, and the FWS’s contrary
claim highlights why the Solicitor’s Opinion is an unreasonable interpretation under the ESA.
Federal Defendants also claim that their authority to delist healthy populations allows
them to deploy scarce agency resources to address the threatened or endangered species
members. Defs. Br. at 20. But as the healthy populations are crucial to the entire species’
recovery, if the sole healthy populations lose their federal protections, the remnant species may
be further jeopardized, thus failing to achieve the ESA’s important objectives.
Lastly, there is no case law in support of the Agency’s claims embodied in the Solicitor’s
Opinion, despite Federal Defendants’ assertion to the contrary. Defs. Br. at 20. The Oregon and
Vermont District Courts both vacated the FWS’s prior gray wolf delisting attempts as violations
of the ESA. See Defenders (wolf), 354 F. Supp. 2d at 1169, and Nat’l Wildlife Fed’n v. Norton,
386 F. Supp. 2d 553, 565 (D. Vt. 2005). The Vermont District Court specifically stated that “the
FWS simply cannot downlist or delist an area that it previously determined warrants an
endangered listing because it ‘lumps together’ a core population with a low to non-existent
population outside the core area.” Id. Therefore, the Solicitor’s Opinion’s position finds no
support in these rulings.
5. Even if the FWS Could Use the DPS as a Delisting Tool, the Boundaries
of the Western Great Lakes DPS Are Arbitrary and Capricious
The FWS’s Final Rule is also unlawful for another reason – the boundaries of the WGL
DPS are inconsistent with promoting wolf recovery. Federal Defendants do not seriously contest
this charge but rather fall back on the FWS’s discretion to set these boundaries. Defs. Br. at 22.
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Once again, this discretion does not extend as far as actions that would hamper the purpose and
language of the ESA.
Federal Defendants argue with Plaintiffs’ claim that the boundaries of the DPS extend far
beyond the wolf’s current distribution, Defs. Br. at 23, but they cannot seriously contest this
point, since the Final Rule recognizes that the core concentrations of wolves are only in parts of
Minnesota, Michigan, and Wisconsin. See, e.g., 76 Fed. Reg. at 81,673 (“This DPS has been
delineated to include the core recovered wolf metapopulation plus a wolf movement zone around
the core wolf metapopulation[,]” including the “primary range and the peripheral range”); id. at
81,690 (“There are five national forests in Minnesota, Wisconsin, and Michigan (Superior,
Chippewa, Chequamegon-Nicolet, Ottawa, and Hiawatha National Forests) with wolf packs that
exclusively or partially reside on them.”).
Next, essentially conceding that the DPS boundaries extend beyond wolves’ current
areas, Federal Defendants assert that the DPS boundaries are sufficient because “dispersal of
wolves from their natal packs and territories is a normal and important behavioral attribute of the
species.” Defs. Br. at 23. But if the dispersing young wolves are going out into unprotected
territory, this admission simply proves Plaintiffs’ point: dispersing wolves need protection to
help reestablish other populations or expand the limited, core existing ones, and the Final Rule
robs them of that protection.
As stated in the Final Rule, there is a distance of approximately 400 miles between the
western boundary of the Great Lakes DPS and the nearest known gray wolf packs in Wyoming and
Montana. 76 Fed. Reg. at 81,671. That territory contains “scattered islands of possibly suitable
habitat.” Id. Wolves have been known to disperse distances greater than 500 miles. 76 Fed. Reg.
at 81,674. And the FWS recognizes that dispersal is important and natural behavior. Defs. Br. at
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23 (citing 76 Fed. Reg. at 81,673). But in violation of the ESA mandate, the Final Rule removes
protection across those crucial dispersal corridors that are part of the gray wolf’s historical range.
Federal Defendants claim that Plaintiffs have inconsistently argued for expansive DPS
boundaries. Defs. Br. at 22. But Plaintiffs’ position is consistent with the ESA and DPS Policy:
listing of DPSs should draw boundaries that provide the necessary protections to achieve the
purpose of the DPS listing in the first place. And ESA protections should not be removed in any
areas beyond where the population has fully recovered from its imperiled state.1
Beyond violating the purpose of the ESA and DPS Policy, drawing wide DPS boundaries
also runs afoul of the same problem previously identified with the FWS’s method. Specifically,
one of the problems with the 2003 downlisting rule was that “the conservation status of
populations within each DPS varies dramatically.” Defenders (wolf), 354 F. Supp. 2d at 1171.
By extending the boundaries of the WGL DPS far beyond the existing wolf populations, the
FWS has repeated the error identified by the Oregon District Court.
6. Any DPS Designation Must Apply to A Single Identifiable Species, But
There is None for the Great Lakes DPS
Even if this Court accepts the FWS’s actions as a valid use of the DPS tool, the Final
Rule is still unlawful because the record reveals that the FWS does not even know what species
it delisted as a DPS. Contrary to Federal Defendants’ assertions, see e.g., Defs. Br. at 37,
Plaintiffs do not contend that the ESA demands taxonomic or other scientific certainty prior to
the FWS making listing or delisting actions. Plaintiffs do, however, assert that the FWS
improperly ignored serious taxonomic uncertainty raised in the rulemaking process and took
1 The FWS may have other intentions for drawing a wide boundary around the WGL DPS. By
drawing the DPS boundaries so widely, the FWS sets itself up for a third phase in its gray wolf
delisting campaign – to delist the remaining, non-DPS areas as extinct and to get out of the wolf
recovery business entirely. See 2007 AR Doc. 35 at 159 (stating that a possible future step for
Option 2 is to “[d]elist remaining states as extinct”).
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final action that was not based on sufficient science because the FWS faced substantial political
pressure to reach its predetermined delisting outcome.
As this Court has held, the FWS “may not base its [listing decisions] on speculation or
surmise or disregard superior data.” Am. Wildlands v. Norton, 193 F. Supp. 2d 244, 251 (D.D.C.
2002) (internal quotation omitted). “[O]ccasional imperfections” in data do not violate ESA’s
requirement that the FWS list and delist based on the best available science. Id. But the rampant
uncertainty evident in the record does render the Final Rule arbitrary and capricious, given the
Agency’s cavalier decision about the basic unit of measure – the identifiable species – required
for ESA action. The Final Rule and record establish that several conflicting studies find that the
wolves in the Great Lakes may be gray wolves, eastern wolves, some hybrids thereof, and/or
some hybrids with coyotes, see Final Rule, 76 Fed. Reg. at 81,687 – 81,689, 81,721 – doubts that
go to the core of which species are being delisted – and these cannot reasonably be considered
“occasional imperfections” in the data on which the FWS relied. Am. Wildlands, 193 F. Supp.
2d at 251.
Moreover, in this case where “the best available scientific data is not sufficient to allow
[the FWS] to clearly identify the intended population subject to review,” the FWS must “explain
how hybridized [species and subspecies] might contribute to the viability of the [species and
demonstrate] that some degree of hybridization is benign.” Id. at 255 (listing determination was
arbitrary and capricious where the FWS did not explain how hybrid trout stock included in
listing determination might affect the genetically pure trout species). Here as in Wildlands, the
FWS failed to distinguish “between hybridization that is a threat to a population, and
hybridization that is benign.” Id. at 256.
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Four years ago, the FWS recognized that any delisting of this DPS required “new
taxonomic information.” AR 14 at 000823A. It still has not obtained that vital information, yet
it decided to delist anyway. The FWS admits in the Final Rule that there is ongoing confusion
and uncertainty regarding taxonomy based on current science for wolves across the United
States. 76 Fed. Reg. at 81,669. And the FWS certainly was not required to grant the citizen
petitions seeking gray wolf delisting. What the FWS is required to do, though, is to make listing
determinations “solely on the basis of the best scientific and commercial data available.” 16
U.S.C. § 1533(b)(1)(A). “The obvious purpose of the requirement . . . is to ensure that the ESA not
be implemented haphazardly, on the basis of speculation or surmise.” Bennett v. Spear, 520 U.S.
154, 176-77 (1997). The FWS reviewed the gray wolf listings and resolved in the Final Rule that
it would call all Great Lakes wolves Canis lupus, despite the FWS’s obvious confusion regarding
that conclusion. When agencies rely on dubious information to expedite a decision, the courts
have “a responsibility to ensure that an agency’s decision is not arbitrary,” and invoking
“scientific uncertainty” to justify agency action is unacceptable. Greater Yellowstone Coal., Inc.
v. Servheen, 665 F.3d 1015, 1028 (9th Cir. 2011) (the FWS had to explain why scientific
uncertainty counseled in favor of delisting rather than continuing to study the issue).
B. The Gray Wolf Cannot Be Delisted Because It Remains in Danger of
Extinction Throughout a Significant Part of Its Range
As an entirely separate basis for vacatur and a return to protection for the Western Great
Lakes Wolves, the Final Rule violates the ESA and is arbitrary and capricious for the
fundamental reason that the gray wolf (Canis lupus) remains threatened or in danger of
extinction throughout a significant portion of its range. The FWS’s attempt to avoid this reality,
by cordoning off wolves as a distinct population segment in the Great Lakes region and ignoring
the severe range constriction suffered by gray wolves, is contrary to the ESA.
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In similar situations, this Court has made clear that the “the FWS’s exclusive focus on
one region where the [species] is more prevalent, despite its historical presence in [other]
additional regions, is contrary to the expansive protection intended by the ESA,” and arbitrary
and capricious agency action in violation of the APA. Defenders of Wildlife v. Norton, 239 F.
Supp. 2d 9, 19, 21 (D.D.C. 2002) (“Defenders (lynx)”), remedy vacated on other grounds by
Defenders of Wildlife v. Norton, 89 Fed. Appx. 273, 2004 U.S. App. LEXIS 7502 (D.C. Cir.
2004). Similarly, the Ninth Circuit has concluded that “a species can be extinct ‘throughout . . .
a significant portion of its range’ if there are major geographical areas in which it is no longer
viable but once was.” Defenders of Wildlife v. Norton, 258 F.3d 1136, 1145 (9th Cir. 2001)
(“Defenders (lizard)”). The Ninth Circuit in Defenders recognized that Congress consciously
expanded the definition of endangered species “to include species in danger of extinction ‘in any
portion of its range.’” Id. at 1144 (quoting H.R. Rep. No. 412, 93rd Cong., 1 Sess. (1973)
(emphasis in original). In other words, the case law demonstrates that the Agency’s
interpretation of the phrase “significant portion of the range” in the Final Rule is unreasonable
and violates the ESA.
Moreover, because the gray wolf here is absent from major geographical areas in which it
was once viable, “the Secretary must at least explain her conclusion that the area in which the
species can no longer live is not a ‘significant portion of its range.’” Defenders (lizard), 258
F.3d at 1145; see also Tucson Herpetological Soc’y v. Salazar, 566 F.3d 870, 877 (9th Cir. 2009)
(“It is insufficient . . . to point to one area or class of areas where lizard populations persist to
support a finding that threats to the species elsewhere are not significant; the ESA requires a
more thorough explanation.”). Yet in the Final Rule, the FWS failed to explain why these areas
no longer constitute a “significant portion of its range.” In fact, the Agency here cannot provide
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a satisfactory explanation for ignoring most of the gray wolf’s historical range, and should be
estopped from doing so, since the FWS already determined that the lower 48 States constituted a
significant portion of the wolf’s range when it listed the wolf across this area in 1978.
Reclassification of the Gray Wolf in the United States and Mexico, 43 Fed. Reg. 9,607, 9,608
(Mar. 9, 1978) (listing gray wolves in the lower 48 States, noting that the “rulemaking clearly
indicates that the gray wolf is listed everywhere to the south of the Canadian border, but nowhere
to the north”).
Rather than taking the required approach of considering the entire historical range
established by multiple federal courts, the FWS instead, illogically, created the fiction that the
core recovery area in the Western Great Lakes where wolves currently exist constitutes a
significant portion of the wolves’ range. The unlawful assumption that the Western Great Lakes
wolves’ current range equates to a significant portion of the gray wolves’ entire range paved the
way for the FWS to carve off the Western Great Lakes population as a DPS. Creating a DPS
enabled the FWS to limit its consideration and assessment of threats to the wolf to only those
areas where recognized populations currently exist. This practice is improper and contrary to the
ESA. See Friends of Wild Swan, 12 F. Supp. 2d at 1133-34 (rejecting the FWS’s attempt to
divide a species’ range into five DPSs without scientific explanation of why a species-wide
listing was not merited).
Nevertheless, Federal Defendants contend that the FWS satisfied the significant portion
of the range requirement in the Final Rule. First, they argue that the FWS applied an acceptable
definition of “significant portion of its range” because the “range” referred to is a species’
current range. Defs. Br. at 27. Second, they claim that, irrespective of the “range” to which the
statute refers, the Final Rule is lawful because the FWS designated this portion of the range as a
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DPS before conducting the section 4(a)(1) threats analysis. Defs. Br. at 25-26, 29. Neither
contention has merit. Had the FWS properly assessed the status of the gray wolf across all
significant portions of its range, it would have determined that delisting is prohibited by the
ESA.
Federal Defendants also attempt to recast the agency’s actions “to redefine the boundaries
of the Minnesota population as a WGL DPS” as “[p]olicy choices.” Defs. Br. at 14. The Court
should not be so misled. Plaintiffs’ challenge presents pure questions of law, not policy, and the
FWS may not invoke Chevron deference to escape scrutiny of its actions. State Farm, 463 U.S.
at 43.
1. The FWS’s Interpretation of “Significant Portion of Its Range” Is
Unreasonable
Federal Defendants claim that because the phrase “significant portion of its range” is
ambiguous, the FWS has the statutory authority to fill in the gaps left by Congress. Defs. Br. at
26. But the FWS’s interpretive authority does not extend so far. Any interpretation must be
consistent with statutory text, purpose, and legislative history. See Nat’l Wildlife Fed’n v.
Norton, 386 F. Supp. 2d at 565 (the FWS’s interpretation of the phrase “significant portion of its
range” entitled to deference only if reasonable in light of the governing statute). Here, Federal
Defendants’ interpretation of the term “significant portion of its range” is unreasonable and
contrary to the ESA’s core purpose and the “plain intent of Congress in enacting this statute [ ] to
halt and reverse the trend toward species extinction, whatever the cost.” Tenn. Valley Auth. v.
Hill, 437 U.S. 153, 184 (1978). Such intent is reflected “not only in the stated policies of the
Act, but in literally every section of the statute.” Babbitt v. Sweet Home Chapter of Cmtys. for a
Great Or., 515 U.S. 687, 699 (1995) (internal quotation omitted).
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a) The ESA Mandates Consideration of Historical “Range”
The FWS’s interpretation of the term “range” as referring to a species’ current range as
opposed to a species’ historical range is unreasonable and not entitled to deference by this Court
because the interpretation is inconsistent with the ESA. The ESA defines the phrase
“endangered species” as “any species which is in danger of extinction throughout all or a
significant portion of its range.” 16 U.S.C. § 1532(6). And a threatened species is defined in the
ESA as one “which is likely to become an endangered species within the foreseeable future
throughout all or a significant portion of its range.” Id. § 1532(20). If a species is threatened or
endangered in a significant portion of the species’ range, then the entire species must be listed
and protected under the ESA. Defenders of Wildlife v. Salazar, 729 F. Supp. 2d at 1219
(“[L]isting depends on when a species is endangered in all or in a significant portion of its
range.”); 16 U.S.C. § 1532(6), (20).
Consistent with the FWS’s historical practice, courts have found that a species is
endangered “‘throughout . . . a significant portion of its range’ if there are major geographical
areas in which it is no longer viable but once was.” Defenders (lizard), 258 F.3d at 1145.2
Similarly, in Defenders (lynx), this Court held that the “FWS’s exclusive focus on one region
where the [species] is more prevalent, despite its historical presence in [other] additional regions,
is contrary to the expansive protection intended by the ESA,” and arbitrary and capricious
agency action in violation of the APA. Defenders (lynx), 239 F. Supp. 2d at 19, 21. In
2 The Solicitor of the Department of the Interior issued a legal opinion in 2007 addressing several
issues regarding the meaning of the “significant portion of its range” (SPR) phrase (referred to as
the “M-Opinion”) (DOI 2007). The M-Opinion’s conclusion regarding the interpretation of the
phrase that provided for applying the Act’s protections to a listed species in only a portion of its
range was rejected by subsequent court rulings, so the M-Opinion was withdrawn on May 4,
2011 (DOI 2011). The FWS is currently drafting a new policy regarding its interpretation of the
“significant portion of its range” phrase. See 76 Fed. Reg. 76,987, 76,988 (Dec. 9, 2011). The
Final Rule appears to be based on the FWS’s interpretation of the term according to the now-
withdrawn M-Opinion.
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Defenders (lynx), the FWS was prohibited from focusing on only one region of the lynx’s
population — the Northern Rockies — to the exclusion of three-quarters of the lynx’s historical
range. Id. Federal Defendants admit they are doing just that here, and make a meager attempt to
try to justify it.
Specifically, they attempt to explain why an analysis focused solely on a species’ current
range is a reasonable interpretation of the term “significant portion of its range” by claiming that
“the FWS is focusing on threats to the long-term health of the species where they currently exist
by focusing on threats arising out of areas of current range.” Defs. Br. at 27 (citing 76 Fed. Reg.
at 81,722). The logic of this position is dubious if not completely lacking. While it makes sense
for the FWS to “focus[ ]” on present threats in the areas where the wolves currently exist in order
to assess the wolves’ long-term survival prospects, this does not explain why this focus should
change the definition of “significant portion of its range,” a term that carries with it the import of
the ESA’s mission to protect and promote the recovery of endangered and threatened species.
The FWS’s myopic focus on the wolf’s current range – particularly for a species that it already
has determined warrants protection across the lower 48 states – is contrary to the ESA.
For example, section 10(j) of the ESA gives the FWS the authority to reintroduce wolves
in areas “outside the current range” if doing so would promote the species’ conservation. 16
U.S.C. § 1539(j)(2)(A). Section 10(j) was added to the ESA in 1982. Pub. L. 97-304, § 6(6)
(1982). The House Report explained that the provision was added to correct the FWS’s
“tendency to discourage voluntary introduction of species in areas of their historical range.”
H.R. Rep. No. 97-567, at 17 (May 17, 1982), reprinted in 1982 U.S.C.C.A.N. 2807, 2817
(emphasis added). If the ESA defines endangerment only in terms of a species’ current range, as
the FWS argues, the statutory authority to establish experimental populations outside of the
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current range under section 10(j) would be meaningless. See Davis County Solid Waste Mgmt. v.
EPA, 101 F.3d 1395, 1404 (D.C. Cir. 1996) (“[I]t is of course a well-established maxim of
statutory construction that courts should avoid interpretations that render a statutory provision
superfluous.”).
Similarly, in designating the critical habitat of a species, the ESA directs the FWS to limit
critical habitat to “areas within the geographical area occupied by the species,” unless it is
essential that critical habitat be designated in “areas outside the geographical area occupied by
the species.” 16 U.S.C. § 1532(5)(A). In other words, Congress’s direct reference to “current
range” and careful distinction between areas inside and outside “the geographical area occupied
by the species” demonstrate that when Congress intended to refer to a species’ current range, it
did so explicitly. See id. In contrast, in defining the terms endangered and threatened species,
Congress used the more general term “range.” See 16 U.S.C. § 1532(6), (20).
The FWS's interpretation of “range” as referring to current range only is also inconsistent
with the ESA’s purpose. By ignoring and failing to analyze threats to the wolf across its
historical range and the wolf’s extirpation across portions of its historical range, the FWS rejects
a primary purpose of the ESA: ecosystem conservation. 16 U.S.C. § 1531(b) (ESA enacted “to
provide a means whereby the ecosystems upon which endangered species and threatened species
depend may be conserved”); see also H.R. Rep. No. 95-1625, 95th Cong., 2d Sess. at 5 (Sept. 25,
1978), reprinted in 1978 U.S.C.C.A.N. 9455 (Congress realized “the loss of habitat for many
species is universally cited as the major cause for the extinction of species worldwide.”).
Moreover, the FWS’s interpretation of “range” contradicts the ESA’s legislative history.
Prior to 1973, weaker predecessor statutes allowed listing and protection of an endangered
species only “when it [was] threatened with worldwide extinction.” H.R. Rep. 93–412, at 11; see
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also Defenders (lizard), 258 F.3d at 1144; Endangered Species Conservation Act, Pub. L. 81-135
§ 3(a) (1969); Endangered Species Preservation Act, Pub. L. 89-669 § l(c), 80 Stat. 926 (1966).
Rather than continuing with this approach, Congress made clear in enacting the ESA in 1973
that:
The term “Endangered Species” means any species of fish or wildlife which is in danger
of extinction throughout its entire range, or in any portion of its range. This definition is
a significant shift in the definition in existing law….
H.R. Rep. No. 412, 93rd Cong., 1st Sess. (1973) (emphasis added); id. at 4-5 (“[S]heer self-
interest impels us to be cautious,” and “the institutionalization of that caution lies at the heart of
the [ESA].”). When Congress enacted this phrase, it unequivocally declared that “[t]he term
‘range’ . . . refers to the historical range of the species.” H.R. Rep. 95-1625 (Nov. 25, 1978),
reprinted in ESA Legislative History at 742 (1982); see also Int’l Bhd. of Elec. Workers v.
NLRB, 814 F.2d 697, 712 (D.C. Cir. 1987) (observing that “a committee report may ordinarily be
used to interpret unclear language contained in a statute”).
In short, Federal Defendants’ interpretation of the word “range” to mean the species’
current range is unreasonable and in violation of the ESA because it contravenes the statutory
text, purpose, and directly relevant legislative history. Indeed, this legislative history is why the
FWS has consistently – at least until its various attempts to delist the gray wolf – adhered its
interpretation and understanding of the “significant portion of its range” phrase to mean the
species’ historical range. See, e.g., 58 Fed. Reg. 34,926, 34,928 (June 30, 1993) (Carolina
heelsplitter listed as endangered because it had “been eliminated from a significant portion of its
historical range”); 51 Fed. Reg. 6,686, 6,688 (Feb. 25, 1986) (listing northern aplomado falcon
after finding it was “endangered throughout its historical range”).
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b) The FWS Cannot Render the Statutory Phrase “Significant
Portion” of the Range Superfluous
In addition to subverting the purpose and legislative history of the ESA by ignoring the
wolf’s historical range, the Agency’s definition of “significant portion of its range” is
unreasonable for yet another reason. In the Final Rule, the FWS considers a portion of a range to
be a “significant portion” if “its loss would result in a decrease in the ability to conserve the
species.” 76 Fed. Reg. at 81,722. This definition fails to give full meaning to each term in the
statutory definition of an endangered species. The ESA requires listing a species as endangered
when it is “in danger of extinction throughout all or a significant portion of its range.” 16 U.S.C.
§ 1532(6) (emphasis added). There is no difference between the danger of extinction throughout
“all” and “a significant portion” of the species’ range if “significant portion of its range” is
defined only in terms of survival of the entire species, as it is under the FWS’s reading.
By its definition of a “significant portion of its range,” the FWS is committing the exact
error stuck down by the Ninth Circuit in Defenders (lizard). In that case, the FWS argued that “a
species is eligible for protection under the ESA if it ‘faces threats in enough key portions of its
range that the entire species is in danger of extinction, or will be within the foreseeable future.’”
Id. at 1141. The court rejected this construction:
If, however, the effect of extinction throughout “a significant portion of its range” is the
threat of extinction everywhere, then the threat of extinction throughout “a significant
portion of its range” is equivalent to the threat of extinction throughout all its range.
Because the statute already defines “endangered species” as those that are “in danger of
extinction throughout all . . . of [their] range,” the Secretary’s interpretation of “a
significant portion of its range” has the effect of rendering the phrase superfluous. Such a
redundant reading of a significant statutory phrase is unacceptable.
Id. at 1141-42. The FWS’s interpretation of “significant portion of its range” here is similarly
unreasonable and not owed deference by this Court since it contravenes the statutory intent of the
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ESA and renders superfluous other statutory terms, violating ordinary rules of statutory
construction.
2. The Case Law Does Not Support the FWS’s Interpretation that Focuses
on Current Range Only
Contrary to Federal Defendants’ suggestion, Defs. Br. at 27-28, no court has found that
the FWS’s “current range” interpretation is a generally permissible definition of “range.”
Indeed, in W. Watersheds Project v. Ashe, 4:11-CV-00462-EJL, 2013 WL 2433370 (D. Idaho
June 4, 2013), the court specifically found that evidence in the record demonstrated that the
species at issue was currently “distributed throughout its historical range, as well as in new areas
where it was not historically located.” Id., 2013 WL 2433370 at *22 (emphasis added).3 Here,
in contrast, there is no dispute that gray wolves have suffered severe range contraction. Answer
¶¶ 50, 58; AR 651 at 019743A; 76 Fed. Reg. at 81,672; 68 Fed. Reg. 15,804, 15,805 (Apr. 1,
2003).
Similarly, Colorado River Cutthroat Trout v. Salazar, 898 F. Supp. 2d 191 (D.D.C. 2012)
is unhelpful to Federal Defendants’ claim that “range” reasonably refers to current range. In that
case, the court, without much analysis, upheld the FWS’s determination to focus on current
range because it found that the FWS had offered a reasonable explanation for this decision. Id.
at 201. Moreover, the court cited the FWS’s explanation “detailing the cessation of the primary
cause of past reduction [in the species’ range].” Id. at 203. The facts in that case stand in
contraposition to those here. First, as addressed in detail below, the FWS has not offered a
reasonable explanation for its decision to ignore the wolf’s historical range. And second, under
3 The parts of the Watersheds opinion to which the Federal Defendants refer to supposedly
bolster their interpretation of “significant portion of its range” are actually not relevant to what is
meant by “range” but rather to how the FWS analyzes what is “significant.” Id., 2013 WL
2433370 at *21 (finding action was not arbitrary and capricious where the FWS relied upon
specific test to evaluate significance).
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the Final Rule, which strips wolves throughout the Western Great Lakes of federal protections,
the causes of reduction of the gray wolf’s range have, and will continue to, increase following
federal delisting. See, e.g., 76 Fed. Reg. at 81,721 (“[A] troubling finding for managers in the
Great Lakes region is the most recent research showing declining [public] support for wolves and
an increasing inclination to kill wolves illegally.”) (internal parentheses omitted); 76 Fed. Reg. at
81,682 (“[FWS’s] detailed review of the past, current, and likely future threats to wolves within
the WGL DPS identified human-caused mortality of all forms to constitute the majority of
documented wolf deaths.”). Lastly, the Agency’s reliance on Friends of Blackwater is misplaced
and supports Plaintiffs’ contention that “range” refers to historical range. See id., 691 F.3d at
432 (data analyzed “show[ed] persistence across 80 percent of the squirrel’s historical range”)
(emphasis added). As Federal Defendants state in their brief, the species at issue in Friends of
Blackwater had a current range that closely matched the extent of its historical range. Defs. Br.
at 28. The same is, without any dispute, not true for gray wolves.
Federal Defendants’ attempts to distinguish the cases on which Plaintiffs rely to define
range with respect to the species’ historical range also fall far short. Federal Defendants try to
dismiss the importance of Defenders (lynx) by claiming that the court’s decision was based on
the FWS’s decision to follow the “plain meaning” of the “significant portion of its range” phrase
rather than define it. Defs. Br. at 31-32. Federal Defendants argue that Defenders (lynx) does
not matter here because the FWS defined the term “significant portion of the range” for purposes
of the Final Rule. Id. at 32. However, even if the phrase is ambiguous and the FWS sets out an
interpretation of it, that interpretation must be reasonable and cannot run afoul of the ESA’s
overarching purpose and congressional intent. Tenn. Valley Auth., 437 U.S. at 183-85. The
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court in Defenders (lynx) unequivocally stated that excluding three-fourths of a species’ range
from a listing analysis is antithetical to the purposes of the ESA. 239 F. Supp. 2d at 20.
Federal Defendants also misrepresent the findings in Friends of Wild Swan. Defs. Br. at
32. The court in that case did find that the FWS’s approach at looking solely at DPSs was
inadequate to address the full scope of the listing petition that it received. 12 F. Supp. 2d at
1133. However, the court also recognized that listing DPSs “is a proactive measure to prevent
the need for listing a species over a larger range — not a tactic for subdividing a larger
population that the FWS has already determined, on the same information, warrants listing
throughout a larger range.” Id. The court also chastised the FWS because it apparently “ignored
its own conclusion that fragmentation, isolation, and loss of the migratory forms . . .
contribute[d] to the decline of the entire population of [the subject species.]” Id.
The FWS’s interpretation of “significant portion of the range” also should be rejected on
the basis of judicial estoppel, because the Agency has made contradictory arguments in other
settings, blithely switching course to support its particular litigation strategy. The purpose of
judicial estoppel is to “protect the integrity of the judicial process by prohibiting parties from
deliberately changing positions according to the exigencies of the moment.” New Hampshire v.
Maine, 532 U.S. 742, 749-50 (2001) (internal citations and punctuation omitted); see also
Konstantinidis v. Chen, 626 F.2d 933, 938 (D.C. Cir.1980) (purpose of the doctrine is to prevent
“improper use of judicial machinery”).4
4 Courts generally apply three factors in determining whether to invoke judicial estoppel: (1)
whether a party’s position is clearly inconsistent with its former position, (2) whether the party
succeeded in persuading a court to accept its former position, and (3) whether the party would
obtain an unfair advantage in the litigation if not estopped. However, “the factors identified by
the Supreme Court in New Hampshire v. Maine are not intended to be ‘inflexible prerequisites’
to application of the doctrine.” Moses v. Howard Univ. Hosp., 567 F. Supp. 2d 62, 67 (D.D.C.
2008) amended, 601 F. Supp. 2d 1 (D.D.C. 2009) and aff'd, 606 F.3d 789 (D.C. Cir. 2010).
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The FWS has previously argued to the Ninth Circuit that a DPS was properly classified
and listed as “endangered” because it had been eliminated from large parts of its historical range.
See J. Br. Federal Appellees, Nat'l Ass'n of Home Builders v. Norton, 325 F.3d 1165 (9th Cir.
2003), 2002 WL 32102866, at *33-*36 (“Norton Br.”). The FWS was sued in NAHB v. Norton
for listing a DPS of Arizona pygmy owls as an endangered species, and the FWS argued that the
DPS was properly listed as an endangered species as evidenced by the “parallel declines of both
the pygmy-owl population and its habitat in Arizona over the last century.” Norton Br., at *34.
The FWS defended its listing decision because of “a significant change from the pygmy-owl’s
former status as a common bird . . . in southern Arizona, even in its northern range which
extended thirty-five miles north of Phoenix. . . . [ ] 100 years ago, the pygmy-owl was abundant
in riparian habitats, but [ ] now, . . . both the habitat type and the owls are rare.” Id. at *35-*36.
Here, the FWS should be judicially estopped from arguing that it need not consider the gray
wolf’s historical range when determining whether the Great Lakes DPS is an endangered species
because it has previously defended a DPS listing decision on this very basis. The FWS should
not be permitted to “deliberately chang[e] positions according to the exigencies of the moment.”
New Hampshire, 532 U.S. at 750.5 This Court should “protect the integrity of the judicial
process” by disregarding the FWS’s self-serving litigation position. See id. at 749.
3. The FWS Failed to Explain its Decision to Ignore the Gray Wolf’s Lost
Range As a Significant Portion of Its Range
Even if the FWS’s interpretation of “significant portion of its range” could somehow be
considered reasonable – which, for the reasons stated above, it cannot – because there are major
5 The Ninth Circuit Court of Appeals initially remanded to the Arizona District Court on a
procedural issue, Nat’l Ass’n of Home Builders v. Norton, 325 F.3d 1165 (9th Cir. 2003), and
subsequently held that FWS had not properly explained its determination that the pygmy owl
constituted a DPS. See Nat’l Ass'n of Home Builders v. Norton, 340 F.3d 835, 847 (9th Cir.
2003). Thus, the question of whether that DPS was endangered was never reached.
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geographical areas in which the wolf is no longer viable but once was, the FWS must at least
explain why the areas in which the species can no longer live do not constitute a significant
portion of its range. Defenders (lizard), 258 F.3d at 1145. That is particularly important in this
case, where the FWS already determined that the lower 48 States were a significant portion of
the wolf’s range and listed the wolf across that range. See 76 Fed. Reg. at 81,672 (gray wolves
lived throughout North America, though now 70 per cent of gray wolves in U.S. are in the Great
Lakes region); 76 Fed. Reg. at 81,666 (citing 43 Fed. Reg. 9,607 (Mar. 9, 1978) listing the gray
wolf (Canis lupus) throughout the conterminous 48 States and Mexico). Yet the FWS provides
no such explanation and would have the Court accept an about-face in its policy interpretation
without further explanation. No such deference is warranted. See Nat’l Wildlife Federation v.
Nat’l Marine Fisheries Serv., 524 F.3d 917, 928 (9th Cir.2008) (noting that a novel approach
completely at odds with past approaches by the agency receives little deference); Defenders of
Wildlife v. Salazar, 729 F. Supp. 2d at 1223 (the agency’s explanation of its interpretation must
consist of explaining the change in interpretation of the statutory provision, not whether the
agency’s new interpretation is consistent with the statute); Friends of Wild Swan, 12 F. Supp. 2d
at 1133 (“[The FWS’s] prior conclusions are relevant in determining whether its current
decisions are arbitrary and capricious.”)
The Final Rule states that the FWS analyzed the “areas of potentially suitable habitat
[within the Western Great Lakes DPS boundaries] that are currently unoccupied [and] are
relatively small” and determined that even if wolves occupied those small areas, it “[would] not
make a significant contribution to the long-term viability of the gray wolf population in the DPS
or in the United States, and thus [those areas] are not considered to be a significant portion of the
species range,” 76 Fed. Reg. at 81,683. But the FWS did not go far enough in its analysis in the
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Final Rule, as established in multiple cases in which “significant portion of its range” was at
issue. As the Ninth Circuit has made perfectly clear, the Secretary must “analyze lost historical
range” and that “[i]t is insufficient . . . to point to one area or class of areas where lizard
populations persist to support a finding that threats to the species elsewhere are not significant;
the ESA requires a more thorough explanation.” Tucson Herpetological, 566 F.3d at 876, 877.
Applying Defenders (lizard) and Tucson Herpetological, courts reviewing ESA listing
decisions have similarly recognized that the FWS must evaluate the significance of a species’
lost historical range. See Wildearth Guardians, 2011 WL 1225547 at * 6 (“the reduction of the
historical range must be considered;” finding the FWS did so); Ctr. for Biological Diversity v.
Lubcheno, 758 F. Supp. 2d 945, 956 (N.D. Cal. 2010) (recognizing listing decisions “include[]
consideration of lost historical range”); Defenders (wolf), 354 F. Supp. 2d at 1168-69 (finding
the FWS illegally “ma[de] all other portions of the wolf’s historical or current range insignificant
and unworthy of stringent protection” by only evaluating areas where the species exists);
National Wildlife Federation v. Norton, 386 F. Supp. 2d at 566 (ruling the FWS cannot rely on
alleged viability of “core” populations while ignoring “historical or current range outside of the
core gray wolf populations”).
This Court has also found the reasoning of Defenders (lizard) and Tucson Herpetological
persuasive on numerous occasions. See Defenders (lynx), 239 F. Supp. 2d at 20 (rejecting the
FWS’s focus on “only one region of the Lynx’s population -- the Northern Rockies/Cascades --
to the exclusion of three-quarters of the Lynx’s historical regions” as contrary to ESA’s
purpose); WildEarth Guardians v. Salazar, 741 F. Supp. 2d 89, 98-101 (D.D.C. 2010) (finding
that the FWS arbitrarily failed to “explain in the first instance how the Utah prairie dog’s
reduction [in 87 percent] of its historical range does not” warrant reclassification from a
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threatened to endangered species); see also Defenders of Wildlife v. Kempthorne, Civ. No. 04–
1230 (GK), 2006 WL 2844232, at *5 (D.D.C. Sept. 29, 2006) (applying the Ninth Circuit’s
definition of “significant portion of its range” and holding the FWS’s decisions unlawful because
it failed to explain how a loss of three of a species’ four population regions did not constitute a
significant portion of the species’ range). In other words, when the FWS fails to evaluate a
species’ lost range to assess whether it constitutes a significant portion of the range, the agency
has failed to consider a relevant factor under the ESA.
The FWS’s approach in the Final Rule ignores the mandate of all of these cases by
focusing its range analysis only on the boundaries of the DPS that it created. In so doing, the
FWS entirely failed to consider lost habitat outside of the boundaries that it drew around the
Great Lakes wolves – excluding habitat that is recognized as the wolves’ historical range and
previously deemed a significant portion of the wolves’ range. See 43 Fed. Reg. 9,607 (Mar. 9,
1978). Indeed, the Final Rule itself identifies regions that were part of the gray wolves’
historical range but yet are excluded from the “significant portion of its range” analysis with no
explanation as to why they were excluded. See 76 Fed. Reg. at 81,671 (noting “scattered islands
of possibly suitable habitat, such as the Black Hills of eastern Wyoming and western South
Dakota”); Defs. Br. at 23 (“The DPS boundaries were not drawn to include the location of all
known dispersers or to extend the boundaries to the western-most borders of the Dakotas because
those dispersers were not known to contribute to the core populations.”) (citing 76 Fed. Reg. at
81,683) (emphasis added); 76 Fed. Reg. at 81,683 (“DPS delineation is appropriately based . . .
by being centered on the areas occupied by the core population, but also including a surrounding
area that encompasses a reasonable portion of the areas visited by core population wolves.”)
(emphasis added); see also Defenders (wolf), 354 F. Supp. 2d at 1167 n.8 (discussing wolf
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habitat and dispersing wolves in the Northeast, Pacific Northwest, and Dakotas); 2007 AR Doc.
468A at 14792 (noting that “the state of North Dakota can support a wolf population”); id. at
14791 (finding that “large areas of habitat exist within North Dakota in which human population
density and road density is low”); 72 Fed. Reg. at 6,073 (the FWS’s recognition that suitable
habitat exists in the Turtle Mountain region of North Dakota). The FWS’s failure to provide a
sufficient explanation as to why it chose to ignore lost historical range renders the Final Rule
invalid.
4. The FWS Cannot Ignore the Requirement to Recover Wolves
Throughout a Significant Portion of Their Range By Carving Up the
Wolf’s Range into DPSs
The ESA precludes the FWS from piecemeal delisting a species by divvying up the
species’ range into small portions and restricting the section 4(a)(1) threats analysis to those
areas. See Defenders (lynx), 239 F. Supp. 2d at 19; Friends of Wild Swan, 12 F. Supp. 2d at
1133. The Agency nevertheless argues that the Final Rule is lawful because it designated the
Western Great Lakes wolf population as a DPS before conducting the threats analysis. See Defs.
Br. at 25-26. In other words, Federal Defendants contend that the FWS need not conduct a
section 4(a)(1) threats analysis across a species’ entire range if the agency avoids that analysis by
first dividing that range into DPSs.
Federal Defendants point to the statutory definition of “species” in support of their claim
that the FWS can delist this select group. Defs. Br. at 25. The definition of “species”
“includes. . . any distinct population segment of any species of vertebrate fish or wildlife which
interbreeds when mature.” 16 U.S.C. § 1532(16). This definition authorizes the FWS to create a
DPS to protect a locally vulnerable population of a vertebrate species even though that species as
a whole is neither threatened nor endangered beyond the local population. As the District of
Oregon observed, if the FWS “legitimately concludes, after proper and sustainable analysis, that
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listing of the entire species” is unnecessary, the agency can “proceed[] on a population segment
basis.” Friends of Wild Swan, 12 F. Supp. 2d at 1134. This “two-tiered approach,” id., is
consistent with the ESA’s policy of “institutionalized caution.” Tenn. Valley Auth., 437 U.S. at
194.
Federal Defendants, however, want to flip this added protection on its head. They claim
that when Congress amended the statute in order that the FWS extend ESA protections to DPSs,
now the expanded “species” definition permits the FWS to skip the first analytical step (a section
4(a)(1) threats analysis across a species’ historical range) and proceed directly to the second step
(evaluating a potential DPS). But nothing in the Act directs or allows the agency to restrict its
scale of analysis to the DPS level before conducting a 4(a)(1) threats assessment for the species
as a whole.6 And allowing the FWS to skip that step, as it did here, would gut the definition of
an endangered or threatened species – one of the central provisions of the ESA – by eliminating
the need to consider the species’ status across a “significant portion of its range.” 16 U.S.C. §
1532(6), (20). The same analysis applies when the agency considers delisting, as opposed to
listing, a species. If the FWS could divvy up a species-level listing into DPSs, and then delist
those DPSs without considering the species as a whole (including the historical range of the
species as a whole), then the FWS would never have to explain why the unoccupied portions of
the range are not significant to the recovery of the species.
The case law does not support such a tortured reading of the ESA. In Defenders (wolf),
the court overturned the FWS’s 2003 gray wolf delisting rule in part because the FWS “limited
6 Indeed, one of the five categories of threats the agency must consider under section 4(a)(1) is
the “…curtailment of [the species’] habitat or range.” 16 U.S.C. § 1533(a)(1)(A). The plain
meaning of “curtail” means “to make less by or as if by cutting off or away some part.”
Merriam-Webster Collegiate Dictionary, 11th Ed. at 307. Accordingly, FWS must review
“curtailed” – or lost – “range” in deciding whether a species deserves listing as an endangered or
threatened species.
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the phrase ‘significant portion of its range’ to areas that ensure the viability of the DPS.” 354 F.
Supp. 2d at 1169; see also id. at 1171 (“[T]he wolf DPS appears to be a tactic for downlisting
areas the FWS has already determined warrant listing, despite the unabated threats and low to
nonexistent populations outside of the core areas.”). And that is precisely what the FWS did
again in the Final Rule delisting the Western Great Lakes DPS. See 76 Fed. Reg. at 81,682
(“The WGL gray wolf DPS no longer meets the definition of a threatened or endangered species,
as it has achieved long-standing recovery criteria by greatly expanding in numbers and
geographic range and threats to its long-term viability have been reduced or eliminated.”); 76
Fed. Reg. at 81,686 (“The WGL gray wolf DPS no longer meets the definition of a threatened or
endangered species, and has achieved the recovery criteria established in the Eastern Timber
Wolf Recovery Plan (Service 1992) by greatly expanding in numbers and geographic range.”);
76 Fed. Reg. at 81,692 (“The large areas of unsuitable habitat in the eastern Dakotas; the
northern portions of Iowa, Illinois, Indiana, and Ohio; and the southern areas of Minnesota,
Wisconsin, and Michigan; as well as the relatively small areas of unoccupied potentially suitable
habitat, will not contribute to the viability of wolves in the WGL DPS. . . . In summary, wolves
currently occupy the vast majority of the suitable habitat in the WGL DPS, and that habitat is
adequately protected for the foreseeable future.”). The text of the Final Rule makes clear that the
FWS did not analyze threats to wolves and their range beyond the boundaries of the Western
Great Lakes DPS, or outside the protected population pockets the FWS selected. Instead, they
ignored “significant portions” of the wolves’ range, and carved up the range in order to meet the
politically expedient delisting of the WGL DPS, in violation of the bedrock principles of the
ESA.
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Federal Defendants claim that “recent courts have criticized the FWS for looking outside
the relevant DPS when conducting delisting determinations.” Defs. Br. at 29 (citing Servheen,
665 F.3d at 1027). But this mischaracterizes the holding of Servheen. There, the Ninth Circuit
concluded that the FWS took arbitrary and capricious action when the agency found that
Yellowstone grizzlies, who the FWS determined were a DPS based on their unique dependence
on whitebark pine seeds for food, would not be threatened by a decline in whitebark pine
because a separate population of grizzly bears in Northern Montana (that the FWS found was not
uniquely dependent on whitebark pine) had continued to thrive despite a decline in whitebark
pine. Id. at 1027. The Ninth Circuit found that the FWS’s final decision was contrary to the
record evidence and at odds with the agency’s own conclusions. Id. The question was not even
presented to the Ninth Circuit, let alone resolved, whether the FWS must conduct a “significant
portion of its range” analysis for the whole species rather than only looking within a DPS’s
boundaries.
Notably, part of the Montana District Court opinion that was not overturned on appeal
stated that “[b]y defining ‘significant portion of range’ based on the DPS boundaries, the
Service’s definition potentially renders the phrase ‘superfluous.’” Greater Yellowstone Coal. v.
Servheen, 672 F. Supp. 2d 1105, 1124 (D. Mont. 2009) aff’d in part, rev’d in part, and
remanded, 665 F.3d 1015 (9th Cir. 2011) (citing Defenders (wolf), 354 F. Supp. 2d at 1168).
Moreover, the district court observed that it is “illogical to establish a DPS and state that the only
range significant to its survival is where it exists currently. Under such an interpretation, the
Service could remove virtually any species from the threatened and endangered list simply by
designating it a DPS.” Id. at 1125 n.9. The FWS’s use of the DPS tool in the Final Rule
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demonstrates this precise approach and why it takes the teeth out of the ESA’s species
protections.
Federal Defendants suggest that Defenders of Wildlife v. Salazar, 729 F. Supp. 2d 1207,
supports the proposition that the FWS may look only at a DPS’s range to determine whether the
species is threatened or endangered. Defs. Br. at 25. This suggestion is erroneous. That case
only stands for the proposition that the FWS cannot list something less than a DPS. Defenders of
Wildlife v. Salazar, 729 F. Supp. 2d at 1219 (“[A] species must be protected if it faces worldwide
extinction, or something less than that. The listing depends on when a species is endangered in
all or in a significant portion of its range.”); id. 1219 n.2 (rejecting defendants’ argument “that
the Service has the flexibility ‘to limit the listing of a species to that portion of the species range
in which it is actually endangered or threatened.’”).
If the Final Rule is upheld and Federal Defendants are permitted to delist a gray wolf
population that represents a principal hope for the species’ overall recovery despite the wolves’
present extirpation from vast portions of their historical range, the FWS will be free to delist
other imperiled species in any pockets where the species has been able to survive. Federal
Defendants are simply wrong when they claim that such a move is inconsistent with the FWS’s
past practice. Defs. Br. at 32. In fact, past practices with the gray wolf prove just the opposite –
that the FWS has consistently tried this tactic to remove species-wide protections from any
small, successful population instead of recognizing that under the ESA, the species must be
protected because it remains imperiled through a significant portion of its range.
C. The WGL DPS Does Not Satisfy the ESA’s Criteria for Delisting
The WGL DPS may not be delisted because the FWS improperly predetermined its
delisting decision in response to political pressures and failed to make the delisting determination
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based solely upon the best available science. In addition, the existing regulatory mechanisms are
inadequate to ensure the Great Lakes gray wolf’s existence in the face of human-caused mortality.
The FWS must determine whether a species should be listed as threatened or endangered
based solely upon the five statutorily prescribed listing factors. 16 U.S.C. § 1533(a)(1)
(collectively referred to as “listing factors”). The listing factors are: (1) the present or threatened
destruction, modification, or curtailment of its habitat or range; (2) overutilization for commercial,
recreational, scientific, or educational purposes; (3) disease or predation; (4) the inadequacy of
existing regulatory mechanisms; or (5) other natural or manmade factors affecting its continued
existence. Id. “Each factor is equally important and a finding by the Secretary that a species is
negatively affected by just one of the factors warrants a non-discretionary listing as either
endangered or threatened.” Nat’l Wildlife Fed’n v. Norton, 386 F. Supp. 2d 553, 558 (D. Vt. 2005)
(citing 50 C.F.R. § 424.11(c)) (emphasis added). Delisting requires a determination that none of
the above five factors threatens or endangers the species. 50 C.F.R. § 424.11(d). Both listing and
delisting determinations must be made “solely on the basis of the best available scientific and
commercial information regarding a species' status, without reference to possible economic or
other impacts of such determination.” Id. § 424.11(b); 16 U.S.C. § 1533(b)(1)(A), (c).
1. The FWS Cannot Delist Wolves in the Great Lakes to Appease Political
Interests and in the Face of Taxonomic Uncertainty
a) The FWS’s Delisting Decision is Based on Politics, Not Science
Federal Defendants make a weak attempt to minimize the role that politics played in the
development of the Final Rule. Defs. Br. at 33-37. Specifically, Federal Defendants claim that
the FWS’s actions were not based on politics, but were based on its mandatory duty to respond to
citizen petitions submitted under the ESA. Id. Yet there is nothing in the record that indicates
that the FWS at any time seriously considered that the citizen petitions were not warranted. The
question that the FWS asked itself from the beginning was not “What must we do?” but rather
“How should we do it?” And while the ESA requires that the FWS respond to petitions within a
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definite timeframe, it nowhere requires the FWS to grant such petitions. See 16 U.S.C. §
1533(b)(3)(A), (B).
In fact, the FWS denies listing and delisting petitions all the time, including petitions to
list or delist DPSs of already-listed species. See Safari Club Int’l v. Jewell, 11-CV-01564 BAH,
2013 WL 4041541, at *19 (D.D.C. Aug. 9, 2013) (citing the FWS’s denial of plaintiffs’ petition
after finding that captive or captive-bred specimens “d[id] not qualify as separate ‘species’ or
otherwise qualify for separate legal status under the [ESA]”); Fund For Animals, Inc. v. Hogan,
428 F.3d 1059, 1064 (D.C. Cir. 2005) (affirming judgment for the FWS after the FWS’s belated
90-day finding that concluded that plaintiffs’ petition failed to demonstrate that a group of tri-
state trumpeter swans was a distinct population segment). And the FWS also regularly delays or
misses deadlines. See, e.g., Defenders of Wildlife v. Babbitt, No. 1:97-CV-02122-GK (D.D.C.
Dec. 22, 1997) (interim order) (“[d]efendants’ own 12–month finding makes clear” that “total
extinction of the Lynx population is a distinct possibility,” and that “the government's failure to
have even raised the possibility of a preclusion finding – with its concomitant substantial delay
[in initiating the required rulemaking process] – is very troubling . . .”); FFA v. Hogan, 428 F.3d
at 1061.
Federal Defendants’ attempts to distinguish the political meddling cases cited by
Plaintiffs are unpersuasive. Defs. Br. at 36-37. For example, Federal Defendants argue that “no
decision was ‘undone’ or reversed at the behest of political meddling.” Defs. Br. at 37. But here
the FWS’s decision to delist the WGL DPS – and its entire delisting schedule – were driven by
politics from the outset. The discussions with Senator Klobuchar began before the FWS even
received the citizens’ petitions on which it claimed it based its decision and timeline. See Letter
from Amy Klobuchar (Dec. 7, 2010), AR 66 at 002732A (referencing December 2009 letter from
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Sen. Klobuchar and Congressman Oberstar to the FWS Director). And none of the documents
referenced by Plaintiffs even discuss the statutory deadlines which should control the Agency’s
conduct; instead, those documents all reference promises to politicians about the scheduled
delisting. See, e.g., AR 87 at 002822A (“Secretary Salazar agreed that we would have a . . . final
rule completed by the end of 2011 (that presumably would delist WGL wolves)” after Senator
Klobuchar planned to introduce delisting legislation); AR 451 at 011748A-0117449A (repeatedly
citing the FWS’s “commitment” to Senator Klobuchar to delist gray wolves). And perhaps most
telling is the fact that the FWS pushed ahead with a final decision to create and delist the DPS
even after it was confronted with new and conflicting taxonomic information. The
administrative record demonstrates that FWS failed “to disregard politics” in arriving at the Final
Rule and violated the clear requirement that it act “solely” on the basis of the best available
science. Save Our Springs v. Babbitt, 27 F. Supp. 2d 739, 747 (W.D. Tex.1997); 16 U.S.C. §
1533(b)(1)(A).
b) The FWS Cannot Delist When It Does Not Know What Species
It Is Delisting
Even if Federal Defendants could lawfully create and delist DPS, or revise a functional
DPS as they claim the FWS did in the Final Rule, the Agency cannot do so without, at the very
least, identifying the species subject to delisting or downlisting. Without the species identification,
the listing factors analysis mandated by the ESA cannot be undertaken and the process is a sham.
The Final Rule violates the ESA because it delists wolves despite the FWS’s substantial
uncertainty regarding the identity of the species that it has delisted.
It was only a matter of months between the Proposed WGL DPS Delisting Rule, in which
the FWS said “[w]ith regard to Canis lycaon, [we are] announcing a rangewide status review of
this species, which occurs in Canada and the western Great Lakes region,” 76 Fed. Reg. 26,090,
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and the Final Rule, in which the FWS said “[we are] at this time continuing to recognize C. lupus
as the only species that occurs in the Great Lakes.” 76 Fed. Reg. at 81,669. There is no plausible
explanation, other than pressure from the political side, for the driving forward to delist by a date
certain, given this complete reversal in the identification of the species at issue. The Court should
carefully scrutinize the timeline over which the FWS did an about-face on the species to be
delisted. Indeed, only months after the Final Rule, the FWS changed its mind about the
taxonomy of wolves in the WGL DPS yet again. See Proposed Lower 48 Delisting Rule, 78 Fed.
Reg. at 35,670 (stating that “[its] review of the best available taxonomic information indicates
that . . . the northeastern United States and portions of the upper Midwest (eastern and western
Great Lakes regions) were occupied by the eastern wolf (C. lycaon), now considered a separate
species of Canis rather than a subspecies of C. lupus. . .”).7 In other words, rather than actually
determining what species of wolf actually exists inside and outside the WGL DPS, the FWS just
picks whatever is the most convenient result to achieve its desired outcome – delisting the wolf,
nationwide, piecemeal.
Plaintiffs do not argue that the FWS must possess absolute taxonomic certainty before
acting. But the record in this case reveals that the taxonomic disagreements are substantial, and
given that the Final Rule removes all protections from the subject species, potentially putting the
species in jeopardy of extinction, that level of uncertainty is unacceptable. The Ninth Circuit has
7 Despite the Agency’s efforts at defending this arbitrary decision, the fact that the FWS changed
course from the proposed rule to the Final Rule is relevant. Plaintiffs do not cite the various
proposed wolf delisting rules for their legal or interpretive value but only to show that the FWS
has no idea what species it is delisting with the Final Rule. Moreover, contrary to Federal
Defendants’ assertion, this Court can consider the Proposed Lower 48 Delisting Rule. See
Humane Soc’y v. Dep’t of Commerce, 432 F. Supp. 2d 4, 14 (D.D.C. 2006) (While courts
typically can only consider the administrative record, “the D.C. Circuit, however, has recognized
a number of exceptions to this rule, indicating that additional evidence may be considered where
‘ . . . evidence arising after the agency action shows whether the decision was correct or not.’”
(citing Esch v. Yeutter, 876 F.2d 976, 991 (D.C. Cir.1989)).
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addressed a similar issue in the ESA context, where the administrative record makes clear that
the agency has substantial uncertainty about a critical piece of the delisting puzzle:
We recognize that scientific uncertainty generally calls for deference to agency expertise.
See Lands Council v. McNair, 537 F.3d 981, 993 (9th Cir.2008) (en banc) (“We are to be
most deferential when the agency is making predictions, within its area of special
expertise, at the frontiers of science.” (internal quotation marks and brackets omitted)).
But we nonetheless have a responsibility to ensure that an agency’s decision is not
arbitrary. See id. It is not enough for the Service to simply invoke “scientific
uncertainty” to justify its action. As the Supreme Court has explained, “[r]ecognizing
that policymaking in a complex society must account for uncertainty ... does not imply
that it is sufficient for an agency to merely recite the terms ‘substantial uncertainty’ as a
justification for its actions.” State Farm, 463 U.S. at 52, 103 S.Ct. 2856. The Service
must rationally explain why the uncertainty regarding the impact of whitebark pine loss
on the grizzly counsels in favor of delisting now, rather than, for example, more study.
See id. Otherwise, we might as well be deferring to a coin flip.
Servheen, 665 F.3d at 1028. The Final Rule is a shining example of a coin flip. When
confronted with new and divergent taxonomic classification options, the FWS decided – its
reasoning and justifications not clear from the record – to call all DPS wolves Canis lupus. The
Final Rule resulting from that coin flip is not a case of the “best available science” or agency
expertise entitled to deference – it is arbitrary and capricious decisionmaking.
To be sure, this Court’s authority extends to reviewing the FWS’s decision on this point.
“[T]here is “an important difference between the depth of [the court’s] review of an agency’s
action and the scope of that review.” NW Coalition v. EPA, 544 F.3d 1043, 1052 n.7 (9th Cir.
2008) (emphasis in original). “‘Although the ultimate scope may be narrow, the depth must be
sufficient for us to be able to comprehend’” the agency’s decision. . . . [W]here the agency’s
reasoning is irrational, unclear, or not supported by the data it purports to interpret, we must
disapprove the agency’s action.’” Id. (quoting Center for Auto Safety v. Peck, 751 F.2d 1336,
1373 (D.C. Cir. 1985) (Wright, J., dissenting)). See also Presley v. Etowah County Comm'n, 502
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U.S. 491, 508 (U.S. 1992) (“[T]he principle has its limits. Deference does not mean
acquiescence.”).
Notably, when faced with this same taxonomic uncertainty regarding wolf species and
subspecies, the FWS has previously recognized that it could not take the listing action that it had
proposed and wanted to take – because of these persistent taxonomic uncertainties. See, e.g.,
Final Rule to Reclassify and Remove the Gray Wolf from the List of Endangered and Threatened
Wildlife in Portions of the Conterminous United States, 68 Fed. Reg. 15804, 15805-06 (April 1,
2003) (describing significant, continuing scientific debate concerning both the species and
subspecies identity of the large canids that historically occupied the Northeast); Nat’l Wildlife
Fed’n v. Norton, 386 F. Supp. 2d 553, 559 (D. Vt. 2005) (“in light of new doubts about whether
the gray wolf historically occupied the Northeast, the FWS concluded, based upon its
interpretation of the ESA and its DPS policy, that it could not finalize its proposal to designate a
separate Northeastern DPS.” (quoting the FWS’s motion for summary judgment)).
Here, the Federal Defendants confronted the same taxonomic uncertainty regarding
which species or subspecies of wolves is present in Great Lakes region and in the newly created
“range” of those wolves as drawn by the Final Rule; indeed, the taxonomic uncertainty may be
even greater now than at the time of the 2003 downgrading attempt since Federal Defendants
reopened the comment period to address this very issue. See Defs. Br. at 8. Yet because of the
Agency’s political promises to delist wolves in the Great Lakes, the FWS decided in 2011 that it
could do what it recognized was contrary to the ESA and DPS Policy back in 2003. Delisting in
the face of the void of knowledge about the proper species violates the ESA because the FWS
cannot take action when its doubt could harm rather than benefit a species’ survival. See
Tennessee Valley Auth., 437 U.S. at 194 (“Congress has spoken in the plainest of words, making
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it abundantly clear that the balance has been struck in favor of affording endangered species the
highest of priorities, thereby adopting a policy which it described as ‘institutionalized
caution.’”); Conner v. Burford, 848 F.2d 1441, 1454 (9th Cir. 1986) (Congress “inten[ded] to
give the benefit of the doubt to the species.”). The basic ESA principles expressed in these cases
and the spirit of the ESA require the FWS to act with utmost caution to protect the species that it
may not have adequately identified, rather than delist it and ignore the consequences.
Finally, because of the unsettled taxonomic questions, the FWS cannot rely on the
Recovery Plan for Eastern Timber Wolf to delist the WGL DPS, because delisting in the face of
substantial taxonomic uncertainty and on the basis of a recovery plan drafted for what the FWS
now believes might be a different species than the wolves that exist in the Western Great Lakes
DPS violates the ESA. In the Final Rule, the FWS relied heavily on that Recovery Plan as
justification for its delisting decision. See e.g., Defs. Br. at 1 (noting the FWS’s inquiry was
“whether the Midwestern populations of wolves met the recovery goals” of the Eastern wolf
recovery plan). In contrast, in Friends of Blackwater, which Federal Defendants cite in their
defense, Defs. Br. at 38, the FWS defended its right not to rely on a recovery plan for the flying
squirrel at issue because recovery plans do not provide “explicit criteria” and are not binding on
the Agency. See Friends of Blackwater, 691 F.3d at 433-34. Here, the Agency treated a non-
binding recovery plan, for a different species, in a different habitat, as its leading principle. See,
e.g., 76 Fed. Reg. at 81,677 (“This methodology is consistent with the recovery criteria
established in the Revised Recovery Plan.”); id. at 81,679 (“[T]he combined wolf population for
Wisconsin and Michigan has exceeded the second recovery criterion of the 1992 Revised
Recovery Plan.”); id. at 81,679 (“The recovery of all wolves in the WGL was guided first by the
1978 Recovery Plan and then by the 1992 revised Recovery Plan for the Eastern Timber Wolf.”).
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The fact that the FWS looked to this unrelated plan for guidance further emphasizes the
precarious nature of its decision, contrary to indisputable ESA principles.
2. Wolves Remain Threatened by Inadequate Regulatory Mechanisms to
Protect them from Human-caused Mortality
The Final Rule violates the ESA because there are inadequate regulatory mechanisms to
protect wolves from human-caused mortality in the absence of federal protections. See16 U.S.C. §
1533(a)(1)(D), (E). Federal Defendants’ concern was not only meeting its political promises but
also creating a Final Rule that would accord with the States’ interests. See AR 451 at 011749A
(“A final delisting that is in effect by March will provide the States (particularly [Michigan and
Wisconsin]) a window of spring depredation control before any potential litigation.”).
The regulatory mechanisms that the FWS evaluated prior to issuing the Final Rule are not
sufficient to ensure the gray wolves’ survival because they are piecemeal, non-binding promises
from states that have indicated their intention to ignore long-time wolf survival in response to
public pressure. This is in sharp contrast to the facts in Servheen, where the FWS reasonably
found adequate regulatory mechanisms to protect the Yellowstone grizzly bear in light of “an
impressive inter-agency, multi-state cooperative blueprint for long-term protection and
management of sustainable grizzly population” which was “legally binding . . . on 98% of the
critical [primary conservation area] (PCA) and are buffered by legal protections afforded by the
Wilderness Act on significant portion of grizzly habitat outside PCA”. 665 F.3d at 1019, 1032.
In this case, the mechanisms on which the FWS relied in delisting wolves in the Western
Great Lakes are Minnesota, Michigan, and Wisconsin’s wolf management plans. As stated in
the Final Rule, “[the FWS] reviewed the 2001 Minnesota Plan, the 1999 and 2006 Updated
Wisconsin Plan, and the 1997 and 2008 revised Michigan Plan . . . to determine if they will
provide sufficient protection and reduce threats. [The FWS is] primarily concerned with the
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outcome of the plan’s implementation.” 76 Fed. Reg. at 81,686. In other words, while the FWS
reviewed these States’ plans and found them adequate, there is no guarantee that the plans will
be implemented as drafted. Moreover, six of the states in the Western Great Lakes region in
which gray wolves are now partially delisted do not even have wolf management plans. See e.g.,
id. at 81,682 (noting that these states do not have wolf management plans); id. at 81,713 (noting
that wolves in Indiana and Ohio lack state protections and that wolves in the Dakotas are treated
the same as all other wildlife in the state). In other words, there is nothing coming even close to
the type of plan approved in Servheen. 665 F. 3d at 1019, 1032.
Instead, the only assurance that conservationists and gray wolf enthusiasts have is that the
FWS is obligated under the ESA to “continue to monitor the status of the species for a minimum
of 5 years after delisting, and [ ] can list it again if the monitoring results show that to be
necessary.” 76 Fed. Reg. at 81,683. And the FWS promises to “closely monitor any steps taken
by States and Tribes within the WGL DPS to establish any public harvest of wolves during our
post-delisting monitoring program.” Id. at 81,709. In other words, take a chance on wolf
survival, and come back later to see if it worked.
But this type of agency reassurance that the FWS will be “closely monitor[ing]” if the
States fail to protect delisted wolves has been found inadequate under the ESA. See Servheen,
665 F.3d at 1029 (rejecting “out of hand any suggestion that the future possibility of relisting a
species can operate as a reasonable justification for delisting” and requiring the FWS to detail its
“adaptive management” response plan, “tied to more specific triggering criteria” to explain why
those responses “would be reasonably likely to mitigate population declines caused by [the
identified potential threat]”) (citing Natural Res. Def. Council v. Kempthorne, 506 F. Supp. 2d
322, 341 (E.D. Cal.2007) (rejecting adaptive management plan under the ESA when it did not
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include “defined action criteria”)). The Final Rule does not provide any such specifics regarding
how the FWS will respond if its apprehensions regarding the States’ implementations of the
management plan are realized, beyond the mandatory minimum monitoring that the FWS must
do to avoid violating the ESA.
In opposing Plaintiffs’ regulatory-mechanisms argument, the FWS does not dispute that
adequate regulatory mechanisms are essential to address the threat of human-caused wolf
mortality once the Western Great Lakes DPS is no longer protected by the ESA. See Defs. Br. at
42-43. Rather, Federal Defendants try to dismiss their duty to analyze the potential effects of the
States’ hunts because at the time of the Final Rule, the States had not actually authorized public
wolf hunts. Defs. Br. at 42-43; 76 Fed. Reg. at 81,709 (“The possibility of a public harvest of
wolves is acknowledged in the Wisconsin Wolf Management Plan. . . . [W]e consider public
harvest of Wisconsin wolves to be highly speculative at this time.”). But the FWS cannot feign
ignorance in this area. The FWS is well acquainted with what can happen when it delists a
protected species such as the gray wolf. See, e.g., Defenders of Wildlife, et al. v. Salazar, et al.,
No. 1:12-cv-01833-ABJ (D.D.C. Nov. 13, 2012), ECF No. 1 ¶¶ 5-6 (after wolves in Montana
and Idaho were stripped of ESA protections, both states instituted aggressive state management
tactics and committed to minimum numbers of wolves that represented a substantial decrease in
current populations); 76 Fed. Reg. 61,782, 61,802 (Oct. 2011) (proposed rule to delist wolves in
Wyoming noting that in 2009, when wolves were briefly delisted in parts of the northern Rocky
Mountains both Montana and Idaho held public hunts, and that following the 2011 Congressional
delisting of wolves in those states, both states are “planning more aggressive hunts for fall 2011
to reduce the population below current levels”); Humane Soc’y of U.S. v. Kempthorne, 481 F.
Supp. 2d 53, 57 (D.D.C. 2006) vacated sub nom. Humane Soc. of U.S. v. Kempthorne, 527 F.3d
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181 (D.C. Cir. 2008) (following the vacatur of the FWS’s 2003 downlisting rule and the return of
gray wolves to endangered status, Wisconsin sought a permit from the FWS to kill wolves).
Notably here, the States have made it clear how important it is to begin hunting wolves as
soon as possible. See, e.g., Amicus Minn. Dep’t of Natural Res. Br., ECF No.31 at 7 (in 2011
the Minnesota Legislature “remov[ed] the requirement that a wolf hunting and trapping season
be delayed by five years after delisting. The removal of the five-year waiting period was
acknowledged by the USFWS in [the Final Rule].”) (internal citation omitted); Defendant-
Intervenor State of Mich. and Michigan Dep’t of Natural Res. (“MI DNR”) Br., ECF No. 30 at
24 (noting that Michigan’s 2008 wolf management plan that the FWS reviewed contemplated a
public hunt).
While inadequate regulatory mechanisms alone are a sufficient reason to prohibit the
delisting of the Western Great Lakes DPS, the Final Rule is also arbitrary and capricious because
it lacks an examination of how all of the threats to wolves in combination may affect species
survival. A species must be listed under and protected by the ESA if the best scientific and
commercial data available show “that the species is endangered or threatened because of any one
or a combination of the [five listing] factors.” 50 C.F.R. § 424.11(c) (emphasis added). Thus,
the threats to wolves must be analyzed cumulatively to determine if wolves are threatened or
endangered. See WildEarth Guardians v. Salazar, 741 F. Supp. 2d at 102. In the Final Rule,
Federal Defendants pay lip service to the FWS’s requirement to analyze the cumulative threats to
wolves by stating that the five listing factors do not individually “or in combination” threaten or
endanger wolves. 76 Fed. Reg. at 81,682, 81,722. However, a mere invocation of the words “in
combination” is not sufficient to discharge the FWS’s substantive duty to analyze the listing
factors’ cumulative effects, “because it does not explain how the individual factors combine to
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affect the [species].” WildEarth Guardians v. Salazar, 741 F. Supp. 2d at 102 (emphasis added).
Because this explanation regarding cumulative effects is lacking, the Final Rule is arbitrary and
capricious.
Finally, Defendant-Intervenors State of Michigan and Michigan Department of Natural
Resources and Defendant-Intervenor Hunter Conservation Coalition offer a series of inapt policy
arguments regarding delisting wolves to improve social tolerance and state management plans
contemplating “public harvest of wolves for the purpose of reducing wolf-related conflicts, and
also for recreational or utilitarian purposes.” MI DNR Br. at 24; see also Hunter Conservation
Coalition Br., ECF No. 33 at 31, 36.8 But their arguments are irrelevant given that the primary
existing threat to the wolf population – human-caused mortality – is not addressed by sport
hunting. See In re Polar Bear Endangered Species Act Listing & Section 4(d) Rule Litig.--MDL
8 Defendant-Intervenor Hunter Conservation Coalition is the only party that challenges
Plaintiffs’ standing to bring this action. Hunter Conservation Coalition Br. at 37-41. This
argument is easily dismissed, as standing was previously affirmed in Kempthorne, in which this
Court found that these Plaintiffs had standing because “(1) plaintiffs have submitted declarations
in support of their standing, (2) neither the FWS nor defendant-intervenors have identified any
deficiencies in those declarations, and (3) these declarations establish all of the elements of
constitutional and prudential standing.” 579 F. Supp. 2d at 10 n.4. The present action involves
the same Plaintiffs, challenging the same agency action, in the same court. Indeed, the
allegations in the declarations of Plaintiffs’ members, including the fact that their recreational
and aesthetic interests in observing wolves are impaired by the FWS’s delisting rule, see e.g.,
Warren Decl. ¶¶ 3, 5, 6, 9, 11, 18; Waligora Decl. ¶¶ 4, 5, 7, 8; Hatfield Decl. ¶¶ 7, 15, 16 ;
Goldman Decl. ¶¶ 6-9,10, 11, are precisely the types of allegations courts routinely find satisfy
Article III standing requirements. See, e.g., Friends of the Earth v. Laidlaw Envtl. Serv., 528
U.S. 167, 183 (2000) (“environmental plaintiffs adequately allege injury in fact when they aver
that they use the affected area and are persons for whom the aesthetic and recreational values of
the area will be lessened by the challenged activity”) (citations omitted); Defenders (wolf), 354
F. Supp. 2d at 1163 (finding plaintiffs who had members with aesthetic and recreational interests
in observing wolves had standing to challenge FWS rule issued under the ESA that decreased
protections for the gray wolf by allowing “takes” because “the decreased protection impairs the
members' ability to observe wolves”); Defenders of Wildlife v. Hall, 807 F. Supp. 2d 972, 981
(D. Mont. 2011) (finding plaintiffs had standing to challenge rule designating a particular gray
wolf population as nonessential experimental species under the ESA where their individual
members averred an interest in observing wolves and the rule “broaden[ed] the circumstances
under which wolves can be killed – making the killing of wolves more likely.”). Such injuries
would clearly be redressed by the requested relief. See e.g., id., 807 F. Supp. 2d at 981;
Goldman Decl. ¶ 12. Hunter Conservation Coalition’s half-hearted standing challenge should
not give the Court pause.
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No. 1993, 709 F.3d 1, 16-17 (D.C. Cir. 2013) cert. denied, 134 S. Ct. 310 (U.S. 2013) (upholding
the FWS’s determination that purported benefits of sport hunting “do not offset or reduce the
overall threat to polar bears from loss of sea ice habitat” and thus did not undermine ESA listing
determination). While Defendant-Intervenors also suggest that “wolf seasons” “provid[e]
essential conservation benefit to the species,” Hunter Conservation Coalition Br. at 36, their
position defies the North American Model of Wildlife Conservation that they themselves extol.
See id.; AR 630 at 017762A. (“[F]uture generations are deserving of wildlife undiminished by our
actions.”).9
In contrast with Defendant-Intervenors’ and Amici’s claims, sport hunting is a crucial
threat that the FWS must consider before it can delist, because human-caused mortality continues
to be the biggest wolf killer and is the primary threat to the wolf’s continued survival. AR 651 at
019763A; 76 Fed. Reg. at 81,682; id. at 81,700 (noting that human-caused mortality is “strongly
additive in total [wolf] mortality”). Hence, the FWS must make a reasonable analysis and
determination of the threat of state hunts, and consider those threats in a cumulative fashion, in
order to properly assess whether there are adequate regulatory mechanisms in place to lawfully
9 The “social tolerance” arguments advanced by Defendant-Intervenors in support of the Final
Rule have previously been rejected out of hand by this Court as irrelevant considerations under
the ESA. See Humane Soc'y of U.S. v. Kempthorne, 481 F. Supp. 2d at 71-72 (“Defendants state
that ‘the public interest in the long-term health and recovery of the gray wolf population in
Wisconsin will be best served by permitting the states to continue their depredation control
activities,’ and that ‘granting Plaintiffs’ request for a preliminary injunction will not further the
ESA's overarching purpose of recovering species,’ citing the allegedly increased public support
that will accompany lethal control of ‘problem’ wolves. The Court finds this argument
disingenuous, particularly in light of Defendants[’] focus in its Opposition just a page earlier
reflecting concerns about the ‘rapi[d]’ growth of the gray wolf population in Wisconsin.
Congressional intent behind the adoption of the ESA and iterated throughout the language of the
Act itself makes crystal clear that the ‘public interest’ lies in the protection of the endangered
gray wolf – not in the lethal taking of ‘problem’ gray wolves in the hopes of creating a selected-
for gray wolf population that never interferes with livestock or hunters’ kills. Simply put, the
recovery of the gray wolf is not supported by killing 43 gray wolves.”) (internal citations
omitted).
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permit a delisting decision. It has not done so here, and the Final Rule should be vacated as a
result.10
III. CONCLUSION
In its effort to reach a pre-determined and politically convenient result – that wolves in the
Great Lakes would be delisted either as a newly created DPS or a “revision” to the 1978 Minnesota
population listing – the FWS has violated the intent and letter of the ESA. The FWS’s application
of the ESA and the DPS Policy in the Final Rule are unreasonable interpretations of the ESA and
are arbitrary and capricious. Therefore, Plaintiffs respectfully request that this Court grant
Plaintiffs’ motion for summary judgment, deny Federal Defendants’ and Hunter Conservation
Coalition’s cross-motions for summary judgment, vacate the Final Rule, and restore federal ESA
protections to wolves in the Great Lakes region.
10 Because the Final Rule violates the ESA, it should be vacated. See Kempthorne, 579 F. Supp.
2d at 21 (vacating 2007 DPS delisting rule given rule’s “fundamental” deficiency of not being
obviously reconcilable with the ESA’s mandate and “the ESA’s preference for protecting
endangered species counsel[ing] strongly in favor of vacat[ur]”); Defenders (wolf), 354 F. Supp.
2d at 1174 (vacating the 2003 wolf downlisting rule); Defenders of Wildlife v. Salazar, 729 F.
Supp. 2d at 1212 (vacating the final rule delisting a northern Rocky Mountain gray wolf DPS
where FWS’s interpretation of the DPS Policy violated the ESA).
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Dated: January 10, 2014
By: /s/ Bruce A. Wagman
Bruce A. Wagman, Admitted pro hac vice
bwagman@schiffhardin.com
SCHIFF HARDIN LLP
One Market, Spear Street Tower
Thirty-Second Floor
San Francisco, CA 94105
(415) 901-8700
(415) 901-8701 (facsimile)
Ralph Henry, D.C. Bar No. 982586
rhenry@humanesociety.org
The Humane Society of the United States
2100 L Street, NW
Washington, DC 20037
(202) 452-1100
(202) 778-6132 (facsimile)
Attorneys for Plaintiffs The Humane Society of
the United States; Born Free, USA; Help Our
Wolves Live (“HOWL”); and Friends of Animals
and Their Environments (“FATE”)
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing was today served via the Court’s CM/ECF
system on all counsel of record.
/s/Bruce A. Wagman
Bruce A. Wagman, Admitted pro hac vice
Attorneys for Plaintiffs
Case 1:13-cv-00186-BAH Document 41 Filed 01/12/14 Page 61 of 61