From the pages of
Sublette Examiner
Volume 4, Number 52 - March 24, 2005
brought to you online by Pinedale Online

Wolf lawsuit tossed

by Cat Urbigkit

Last week, a federal court judge dismissed the lawsuit challenging the U.S. Fish and Wildlife Service's rejection of Wyoming's wolf management plan. The case was filed by state officials and was joined with a similar case filed by the Wyoming Wolf Coalition.

Each claim made in the case was denied, with U.S. District Court Judge Alan Johnson noting that the court lacked jurisdiction because the January 2004 letter from FWS rejecting the wolf plan did not constitute final agency action to be reviewed under the Administrative Procedures Act.

The court noted: "Wyoming is under no mandate to regulate gray wolves. The letter sent to Wyoming critiquing the Wyoming plan does not carry the force of law with it - Wyoming is free to ignore it. But such an action is not without consequences. If Wyoming chooses to ignore the letter and the critiques contained therein, the state simply will find itself perpetually pre-empted from regulating the gray wolf."

Johnson noted that state officials had argued that any delay in delisting of the gray wolf infringes upon Wyoming's sovereignty by preventing Wyoming from assuming management authority over the gray wolves in Wyoming. Johnson called this argument "problematic," noting: "The most obvious deficiency is that Wyoming's purported sovereignty in this area has been unmistakably pre-empted by Congress. Therefore, Wyoming's claim to sovereignty as to threatened or endangered species lacks legal foundation."

Johnson continued: "Moreover, if there was some type of injury to Wyoming's sovereignty, it occurred on the date that the wolves traversed onto Wyoming land, not upon receipt of the letter in question. Thus, the injury complained of flows not from the FWS's letter, but rather from the initial decision to release wolves back into the ecosystem - a valid exercise of Congress' power under the commerce clause."

In addition, the court declined to review the plaintiffs claims regarding any Endangered Species Act violations, "because they have failed to establish that the federal defendants have a mandatory duty to delist the gray wolf, or lack discretion as to management of the wolf depredations. ... Neither the plaintiffs nor the plaintiff-intervenors have succeeded on the merits of any of their claims in this litigation."

The lawsuit also challenged the FWS's failure to control wolf depredations. FWS argued that it has no mandatory duty to control gray wolf depredations, to which the federal court agreed.

Johnson wrote: "The plaintiff-intervenors have failed to demonstrate that the federal defendants have a mandatory duty to control wolf depredations. The court has examined the plaintiff-intervenors' reply brief very carefully and it is unable to find a reference to any regulation or statute that would create a non-discretionary duty requiring FWS to control depredations. In fact, a review of the relevant regulations clearly demonstrates that the federal defendants are not mandated to control wolf depredations.

Johnson continued: "Frankly put, the plaintiff-intervenors have not demonstrated that the federal defendants are under a discrete non-ministerial duty to control the depredations. The only arguably mandatory actions that FWS must take are related to chronic problem wolves."

Johnson noted: That is not to say that the federal defendants do not have the authority to control wolf depredations. However, the authority granted to the federal defendants is discretionary in nature. The regulations clearly demonstrate a legislative choice to create discretion on how to deal with the gray wolf depredation and human-wolf conflicts."

Johnson added: "By their very nature, the gray wolf preys on other animals for survival, and at times the gray wolf preys on livestock. This result is fully contemplated by the regulations, namely that there will be depredations. How these depredations are mitigated, however, is left to the expertise and sound discretion of the FWS."

Johnson's 68-page opinion concluded: "The court is at a loss to explain the actions of the State of Wyoming. The statutory mechanisms, namely the petition process, are in place for the state to create a reviewable record. This action, if it had been taken, would have forced the federal defendants to make choices under hard deadlines set by congress. It would have also triggered the 'best science available' mandate, and much of the federal defendants' arguments presented here would have melted away, allowing this court to reach the merits of many of Wyoming's claims. The statutory requirements are not mere bureaucratic hoops to jump through, but rather are the stated will of congress, and the people, and as such should be adhered to with great care.

"This case touches the heart of federalism. The complaints filed here are not cognizable under the limited jurisdiction of this court. This does not mean that the court is not sympathetic to the claims being made, however, the arguments brought to this court are more appropriately laid at the feet of the Wyoming congressional delegation. This court is not in the position to step into the shoes of the Secretary of the Interior and begin administrating the Endangered Species Act. Nor is this court in a position to micromanage the Fish and Wildlife Service's authority to manage the gray wolf population," Johnson continued.

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