Volume 4, Number 5 - April 29, 2004
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Wyoming sues over wolves
Last Thursday, the State of Wyoming filed a civil suit in U.S. District Court that asserts the U.S. Department of the Interior exceeded its own authority and ignored the weight of science when it rejected Wyoming's wolf management plan in January.
Both Governor Dave Freudenthal and Attorney General Pat Crank said they had been reluctant to pursue litigation, but that little choice remained.
"I had frankly hoped it wouldn't come to this," Freudenthal said in a release. "I had hoped that the Department of the Interior would abide by the Endangered Species Act and make its decisions according to science, but the department has amply demonstrated that is not the case."
In January, when FWS rejected Wyoming's wolf management plan, it did so based on political considerations, fear of lawsuits by environmental organizations and speculation regarding future actions by Montana and Idaho to adopt plans similar to Wyoming's.
The state of Wyoming actually filed two documents Thursday. The first is a suit under the federal Administrative Procedures Act, which essentially argues that the U.S. Department of the Interior acted arbitrarily and capriciously when it did not approve Wyoming's wolf management plan.
The second is a notice of intent to sue under the Endangered Species Act. The ESA requires that defendants receive 60 days notice before they are sued under the act. In 60 days, the suit filed Thursday will be amended to include the ESA arguments.
Wyoming attorneys are pursuing five causes of action against the federal government. Causes of action are the grounds on which the plaintiff's case is based.
Four contend violations of the Administrative Procedures Act and maintain, among other things, that the Department of the Interior acted arbitrarily and capriciously when it put a legal-risk analysis above science in rejecting Wyoming's wolf management plan.
With its fifth cause of action, the state argued that the Department of the Interior usurped Wyoming's rights under the 10th Amendment of the U.S. Constitution, which guarantees state sovereignty. The Endangered Species Act permits the FWS to protect endangered or threatened species and to monitor a recovered species, but it does not give FWS authority to mandate a state's legislation.
In its complaint, the state argues some of the same issues contained in the Sublette County Farm Bureau notice of intent to sue, filed in February. The complaint states: "In developing its wolf reintroduction program, the FWS recognized that the reintroduced wolves would come into contact with livestock production and other human activities. From the outset of the program, the federal government assured ranchers that the FWS would control the wolves in order to limit the harm to landowners. In its environmental impact statement, FWS explained that the 'overriding goal of the wolf control program' is to minimize wolf depredation on livestock. FWS recognized that a responsive program to address conflicts between wolves and domestic livestock reduces the degree of livestock depredation by wolves."
The complaint continued: "Despite the formal declaration of a policy of preventing and responding to wolf depredation, the federal government has repeatedly neglected to fulfill its commitment to Wyoming residents. Wolves have killed a very large number of livestock in many parts of the state to the detriment of Wyoming residents and directly to the detriment of the state. Wolf predation of livestock causes income loss for Wyoming residents, which then results in a loss of expenditure within the Wyoming economy and a corresponding loss of sales tax income for Wyoming.
"Because ranches in Wyoming can be very large, and livestock often is scattered over a vast area, ranchers frequently do not find carcasses from wolf kills, if at all, until well after evidence of the cause of death is available. Ranchers are therefore unable to demonstrate, to the degree demanded by FWS, that wolves killed the animals at issue. As a consequence, FWS statistics grossly understate the number of cattle and sheep wolves have killed.
The state's complaint alleges harm to Wyoming's wildlife as well. It stated: "Wolf predation has caused a decrease in elk and moose herds in Wyoming. Calf-cow ratios and populations for both elk and moose in Wyoming have declined significantly where wolves have become established. Cow-calf ratios in elk herds not in close proximity to substantial wolf populations have maintained pre-wolf reintroduction levels, while cow-calf ratios in elk herds near Yellowstone National Park have decreased by up to 26 percent since the reintroduction of the gray wolf to Wyoming.
The reduction in wildlife herds means a reduction in revenue to the Wyoming Game and Fish Department, the complaint said, which classifies as harm to the state's resources. The complaint stated: "The elimination or significant reduction in the sources of revenue, which is the direct result of the FWS's unlawful refusal to approve the Wyoming Plan, causes an irreparable harm to Wyoming's sovereignty. Wyoming's ability to exercise its authority as a sovereign state in managing Wyoming's wildlife, both game and non-game species, is eroded by the unlawful withholding of agency action by the FWS.
"By unlawfully withholding agency action, the FWS is not only compelling Wyoming to forego revenue that could be used by Wyoming to manage game and non-game species, but also is compelling Wyoming to use other resources to address negative wolf impacts. These two results, caused by the FWS's unlawful withholding of agency action, cause an immediate and irreparable harm to Wyoming's sovereignty."
FWS repeatedly acknowledged that the reason for rejecting the Wyoming wolf plan was more political than biological, according to the state complaint. The complaint quoted FWS Wolf Recovery Coordinator Ed Bangs as stating while is agency "is mandated to focus on science and biology, public attitudes and comments will influence subsequent litigation." This fear of litigation was a driving force in rejecting the wolf plan, according to the complaint.
FWS Director Steve Williams told state officials that FWS would approve the Wyoming plan only if three changes were made: eliminate the "predatory animal" status and classify the gray wolf as a "trophy game animal" only; amend the law to unambiguously commit to managing for at least 15 wolf packs in Wyoming; and; Wyoming's definition of the term "pack" must be consistent with the definitions in Idaho and Montana state plans, and, if the pack size must be established by law, the state law must define pack size as at least six wolves traveling together in the winter.
The Wyoming complaint notes that under the Administrative Procedures Act, "a reviewing court shall compel agency action unlawfully withheld or unreasonably delayed." Wyoming argued that the FWS rejection of the Wyoming wolf plan is unlawful. Rather than complying with the Endangered Species Act mandate to use the "best scientific and commercial data" in making decisions, FWS "disregarded the best scientific and commercial data available regarding the Wyoming Plan and rejected the Wyoming Plan based upon political considerations, fear of litigation by environmental groups, and speculation regarding Montana and Idaho adopting plans similar to the Wyoming Plan".
The state argues that FWS will not propose a rule to delist the gray wolf until Wyoming changes its statutes and the Wyoming Plan, even though the gray wolf population in the northern Rocky Mountain region satisfies all of the legal requirements for delisting under the ESA, and the Wyoming plan satisfies the "adequate existing regulatory mechanism" requirement for delisting.
According to the complaint: "Unless Wyoming capitulates to the Defendants' unlawful and unconstitutional political demands, Wyoming's wildlife resources will continue to be harmed, Wyoming's economy will continue to be harmed, and Wyoming's sovereignty will be compromised."
Thus, according to the complaint, Wyoming is entitled to an injunction ordering FWS to immediately approve the Wyoming plan and to proceed forthwith to propose a rule to delist the gray wolf in this region.
The second cause of action cited in the state complaint notes that wolves in Wyoming are killing significant numbers of livestock and wildlife, and FWS has not taken adequate steps to control this depredation by wolves in Wyoming as required by federal regulations.
"The Defendants have neglected to fulfill their commitments or abide by their own regulations that mandate control of depredating wolves," the complaint stated. "The Defendants have exclusive authority to control depredating wolves and have failed to properly manage wolves in Wyoming pursuant to their own regulations."
This failure to properly manage the gray wolf population in Wyoming means FWS has unreasonably delayed or unlawfully withheld agency action, the complaint stated. Thus, Wyoming is entitled to an injunction ordering FWS to control wolf depredation of livestock and wildlife in Wyoming in accordance with existing federal regulations until the state is authorized to assume management responsibility for wolves in Wyoming.
By rejecting the Wyoming plan because of the "predatory animal" classification, FWS acted arbitrarily, capriciously, and not in accordance with law, according to the complaint, so Wyoming is entitled to an injunction ordering FWS to immediately approve the Wyoming plan and to delist wolves in this region.
In its fourth cause of action, the state complained: "FWS has offered Wyoming a choice between two coercive alternatives: either the gray wolf will remain 'protected' under the ESA and Wyoming will thereby lose its authority to manage the species in a way that limits harmful impacts on livestock and wild game and permits control of the wolf population consistent with Wyoming's management of other species; or Wyoming succumbs to FWS's mandate that the Legislature enact a statute of FWS's choosing.
" Under FWS's interpretation, the ESA would commandeer the Wyoming Legislature into federal regulatory service. Thus, the interpretation would work an unconstitutional application of the ESA on Wyoming.
The complaint asks the federal court to declare the U.S. Constitution prohibits FWS from imposing its will upon the Wyoming Legislature and declare that the FWS's mandate is unconstitutional.
The state's final cause of action serves as a catchall, in which the state seeks a declaration from the court that FWS acted illegally on five issues: 1) Rejecting the Wyoming plan. 2) Failing to properly manage the gray wolf population in Wyoming. 3) Considering other than best scientific and commercial data available. 4) Considering an alleged ambiguity in the language of existing state law after previously approving the language. 5) Rejecting the Wyomng plan because of the "predatory animal" classification.
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