From the pages of
Sublette Examiner
Volume 5, Number 50 - March 9, 2006
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Court questions wolf Lawsuits

by Cat Urbigkit

If the line of questioning by a three-judge panel is any indication, the State of Wyoming’s appeal of the U.S. Fish and Wildlife Service’s rejection of its state wolf management plan is doomed, as is the appeal filed concurrently by the Wyoming Wolf Coalition.

Oral arguments in the appeals were heard by the Tenth Circuit Court of Appeals panel in Salt Lake City on Monday. A federal judge in Wyoming had rejected the lawsuits, but his decision was appealed to the higher court.

The state’s case focuses on FWS’s January 2004 letter to the state rejecting the wolf management plan and insisting that the plan eliminate “predator” status for wolves before it would be accepted.

The wolf coalition’s case also argued over the rejection of the wolf management plan but also claimed that FWS’ insistence that wolves must be protected throughout Wyoming represents a major modification to wolf management that must be subject to an environmental impact statement pursuant to the National Environmental Policy Act.

The panel keyed in on the 2004 letter by FWS, indicating that the letter was not “final agency action” for which judicial review is appropriate.

Jay Jerde of the Wyoming Attorney General’s Office was first to make his case, and had just started discussing the FWS rejection of the state’s plan when he was interrupted by Judge David Ebel, who questioned whether FWS had actually rejected the plan or simply indicated that it didn’t like the plan. He also noted that the state is continuing to work its way through the administrative process by its filing a petition to delist wolves in Wyoming.

“I don’t understand why you’re not satisfied with the administrative process as it is now proceeding under your petition,” Ebel said.

Jerde said the state is not satisfied and that a decision on the state’s petition is due in mid-July. He predicted that FWS would respond with a decision declining to proceed with delisting until the state corrects three provisions of the state’s plan that FWS doesn’t agree with.

Ebel said, “If they do, you’ve got final agency action. ”Ebel said he saw “no legal significance to that letter at all.” Ebel said the letter, in his view, is not a final decision “from which rights and obligations flow.” Jerde attempted to argue that common sense indicates that FWS won’t change its mind, but Ebel interjected, “How do you know they won’t change their mind?”

Jerde pointed to the FWS’ advanced rule making concerningde-listing wolves that emphasizes that FWS has no intentions of proceeding with delisting until Wyoming changes its plan. Jerde argued that the 2004 letter was final agency action.

Ebel pointed out that the rulemaking and de-listing processes provide more opportunity for the state to influence FWS’s decision, which does constitute final agency action.

Jerde questioned, “What more input do they need?” He pointed to FWS’ 11 wolf biologists reviewing Wyoming’s plan and added, “Public comment isn’t going to trump peer review.”

Judge Paul Cassell commented, “We can’t say for certain these processes will be irrelevant,” and suggested FWS could change its mind.

Although the state continued to argue that the letter constituted final agency action, Judge Deanell Reece Tacha asked, “Don’t we have to have a clear answer by those in authority?”

Jerde said that although the state filed a petition for de-listing, FWS has conducted a status review of wolves, to which the court disagreed.

Ebel said, “They never said it was a status review. It never sounds like a duck, looks like a duck, or walks like a duck, why are you calling it a duck?”

Jerde said FWS went through the steps in a status review, and the last step was addressing adequacy of Wyoming’s wolf plan. Jerde said,“They are telling us we have to change our plan.”

Cassell listened to Jerde’s statement that FWS is to issue the decision on de-listing in a few months and suggested the state is in court “to get court review, a year or two ahead of time.”

Jerde responded, “We’re entitled to that review,” pointing to the letter as “clearly established final action.” He questioned, “What are they going to do, another peer review?”

Tacha answered, “Counsel, we don’t know what they are going to do, that’s the problem.”

The appeals court panel had already been fully briefed on the wolf lawsuit, so oral arguments are very limited and serve as the final action before a decision is issued. With the state being the lead on appeal, Jerde was given 15 minutes to argue, but he reserved about five minutes of his time for the Wyoming Wolf Coalition attorney to make her case.

Harriet Hageman, attorney for the Wyoming Wolf Coalition, attempted to argue the NEPA claims of her clients, but she also had to face the skepticism of the court. Ebel said she still “has the procedural hurdle of final agency action.” He suggested the hurdle might be “lethal.” Hageman used her remaining three minutes to summarize the case that an environmental impact statement should be required because of changes to the impacts from reintroduction.

Next was a rebuttal by David Shilton, representing the federal government. He explained de-listing, noting that FWS can either propose de-listing or can be petitioned to begin the process, which concludes with a decision.

Tacha pointed to the state’s argument that nothing is going to change since FWS has said it doesn’t like Wyoming’s wolf plan, so “why isn’t that final for the purposes of the state?”

Shilton responded, “First of all, it’s not final as a matter of law,” in addition to the fact that as the decision-making process moves forward, “the department can change its mind.”

Shilton said that in providing input regarding state management plans, FWS was “trying to be helpful to the three states” about whether their plans would be good enough for delisting. He suggested the states would be better off knowing that now, rather than later in the de-listing process.

Shilton said FWS input was an advisory capacity only and held “no legal consequences.”

Shilton said “it’s impossible to say what (FWS) will do at the end of the day,” insisting “you can’t prejudge that.”

When Shilton insisted that FWS hadn’t conducted a status review but had the 11 wolf biologists review the state plans “just to be helpful to the states,” Tacha laughed that the State of Wyoming was “so pleased” with FWS’ help, causing a ripple of laughter throughout the courtroom.

Earthjustice attorney Abigail Dillen, representing environmental intervenors, spoke briefly, insisting the 2004 letter was not final agency action and that the Wolf Coalition’s NEPA claim was not ripe for review.

Dillen said the court needs to let the delisting process play out. She noted that FWS has also been making bold statements about the impending delisting of the Yellowstone grizzly bear.

“Does that mean the Sierra Club can seek review?” Dillen asked, calling it a “chilling prospect” for all involved.

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