From the pages of
Sublette Examiner
Volume 6, Number 2 - April 6, 2006
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Appeals court tosses wolf lawsuits

by Cat Urbigkit

A federal appeals court has tossed out the two lawsuits challenging the U.S. Fish and Wildlife Service rejection of the state’s wolf management plan and contesting FWS’ management of depredating wolves in the state.

A three-judge panel of the Tenth Circuit Court of Appeals held oral arguments in the cases filed by the State of Wyoming and the Wyoming Wolf Coalition. A lower court decision issued last year sided with federal officials and this week’s decision upheld the lower court’s ruling.

The wolf lawsuits focused on FWS’ 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 rejection of the wolf management plan in addition to claiming 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.

Like the lower court, 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 under the Administrative Procedures Act.

The short appeals court decision issued Monday noted it affirmed “the judgment of the district court for substantially the same reasons given in its opinion.”

The court held, “ ... that the plaintiffs have failed to identify a final agency action which is necessary to satisfy the statutory standing requirements under the APA ... unlike the district court, we express no opinion on the merits of the plaintiffs’ ESA and NEPA claims.”

In the lower court decision that was upheld by the appeals panel, Judge Alan Johnson 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.”

The lawsuit also challenged the FWS’ failure to control wolfdepredations. 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 discretenon-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 decision now stands.

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