Volume 5, Number 28 - October 6, 2005
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FWS low on wolf number estimate, case argues
The fight over the U.S. Fish and Wildlife Service rejection of Wyoming's wolf plan continues in the federal court system and now the parties involved are even fighting over what information the appeals court should consider.
State officials and the Wyoming Wolf Coalition filed motions asking the Tenth Circuit Court of Appeals to strike all references to materials outside of the case's existing administrative record that the Sierra Club and Natural Resources Defense Council included in briefs to the court.
The wolf coalition noted that the Sierra Club and NRDC "neither requested nor received permission from the court to supplement the administrative record. Their opposition to the wolf coalition's motion to strike only confirms that they should be prohibited from surreptitiously supplementing the administrative record, and that the related extraneous references and materials should be stricken."
The wolf coalition not only questioned, but flat-out disputed, the accuracy of the information that the Sierra Club and NRDC presented to the court. The information at issue included reports prepared by FWS and the Wyoming Game and Fish Department in regard to wolf and big game population numbers.
Noting that FWS's inability to properly manage and control the wolves is the very issue at dispute in the case, the wolf coalition argued that FWS has consistently under estimated wolf numbers.
The Sierra Club and NRDC, which are intervenors in the wolf litigation, told the court that the wolf coalition's "apparent position is that it is proper to make unsupported factual allegations, but improper to rebut these allegations with citations to reliable agency data. The court should not embrace this view."
The brief said, "Moreover, Sierra Club does not cite this data to defend the challenged agency actions on the merits, but rather to ensure that the court is not misled by the wolf coalition's wholly unsupported claims regarding alleged harms caused by wolves in Wyoming."
The Sierra Club wrote that the court "should reject the wolf coalition's attempt to suppress facts that discredit its prejudicial allegations of harm, which were made without citation to any source, much less the administrative record filed in the district court."
The Sierra Club and NRDC argued that the wolf coalition sought to keep the court from considering agency data "regarding the current Wyoming elk over-population, increased state hunting revenues, and the high number of wolf control actions taken by FWS in Wyoming in recent years. In short, the wolf coalition seeks to prevent the court from reviewing reliable factual materials that contradict the coalition's own unsupported and shrill assertions of a wolf management crisis in Wyoming."
The coalition brief insisted that the information cited by the Sierra Club and NRDC is unreliable.
"Wolves kill and eat livestock and wildlife," the coalition noted. "Sometimes they kill livestock and wildlife for sport. The numbers of dead livestock and wildlife is directly correlated to the number of wolves inthe Northern Rocky Mountain area. The more wolves in an area the more animalsthey have killed and will kill in the future. Simple math demonstrates that, by underestimating the wolf population, the federal defendants have also underestimated the impact of the wolves. As such, the impact analyses that they have done are inaccurate."
The information and materials that the Sierra Club and NRDC are relying on are inaccurate and are neither of the type nor of the caliberthat is subject to judicial notice, the coalition argued.
"To put it more bluntly, the wolf coalition members believe that the data gathered by the federal defendants is so in accurate that it is often meaningless," the brief stated, pointing to the Farson sheep killing incident earlier this year for an example. While one of the 30 dead sheep was confirmed as a wolf kill, 14 others were classified as "probable" wolf kills, the remaining 15 dead lambs and ewes, which were lying next to the "confirmed" and "probable" kills and had met the same fate, weren't eligible for classification. The coalition argued that FWS, "by defying common sense, underestimated the wolf kills in this one circumstance by 50 percent."
The wolf coalition is suing FWS because it had failed and refused to properly manage and control the wolf population.
"Their failure to carry out their responsibilities has resulted in substantially higher livestock and wildlife kills than were anticipated and than have ever been acknowledged," the coalition noted. FWS, Sierra Club and NRDC "have every incentive to paint a rosy picture regarding the predator that they brought into the state. They have every incentive tominimize the fact that wolves have killed more livestock and wildlife, and have moved farther afield geographically, than was either anticipated or analyzed pursuant to the National Environmental Policy Act."
"Apparently concerned that the wolf coalition has identified the real life consequences of the federal defendants' decisions to introduce a foreign predator into our midst, and that such predator is being allowed to kill livestock and wildlife essentially unchecked, they now seek to introduce inaccurate and disputed information, arguing that it is subject to judicial notice by this court," the coalition brief stated. "The intervenors' positionis that they are entitled to submit extraneous data to support their arguments, while the wolf coalition must be summarily and forever foreclosed from pointing out why such data is worthless. The intervenors argue that, based upon the data that suits their purpose here, this court is required to declare that wolf coalition members - the people and entities most impacted by the federal defendants' wolf introduction and management decisions - have no voice, have no judicial remedy, have no redress for the wrongs that have been committed, and have no right to challenge the Sierra Club's and NRDC's rosy picture regarding how wonderful the wolves have been."
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