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ESAblawg is an educational effort by Keith W. Rizzardi. Correspondence with this site does not create a lawyer-client relationship. Photos or links may be copyrighted (but used with permission, or as fair use). ESA blawg is published with a Creative Commons License.

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florida gators... never threatened!

If you ain't a Gator, you should be! Alligators (and endangered crocs) are important indicator species atop their food chains, with sensitivity to pollution and pesticides akin to humans. See ESA blawg. Gator blood could be our pharmaceutical future, too. See ESA musing.

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Follow the truth.

"This institution will be based on the illimitable freedom of the human mind. For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it." -- Thomas Jefferson to William Roscoe, December 27, 1820.

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Thanks, Kevin.

KEVIN S. PETTITT helped found this blawg. A D.C.-based IT consultant specializing in Lotus Notes & Domino, he also maintains Lotus Guru blog.

« ESA news emerging in Florida... | Main| FWS considering delisting of marbled murrelet »

Federal judge rejects FWS delisting of Minnesota's gray wolves: Humane Society v. Kempthorne (D.D.C.)

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Humane- Society v. Kempthorne, Civil Action No. 07-0677 (PLF), --- F.Supp.2d ----, 2008 WL 4378080 (D.D.C. Sept. 29, 2008)(Paul L. Friedman, District Judge).

INTRO: In 1978, the gray wolf (Canis lupus ) was listed as threatened in Minnesota and endangered throughout the rest of the conterminous United States. On February 8, 2007, the United States Fish and Wildlife Service ("FWS"), an agency within the Department of the Interior, promulgated a final rule revising the wolf's listing status. See 72 Fed.Reg. 6052 (Feb. 8, 2007) (the "Final Rule"). The Final Rule did not affect the listing status of the gray wolf everywhere. Rather, it designated a cluster of gray wolves in the western Great Lakes region as a "distinct population segment," or DPS. It then removed the wolves within the western Great Lakes DPS from the endangered species list. See id., 72 Fed.Reg. at 6066. The Final Rule did not change the listing status of gray wolves outside the boundaries of the western Great Lakes DPS...  See summary and Q&A pages by FWS.

Soon thereafter, plaintiffs The Humane Society (and others) brought this suit. They challenge the Final Rule under the Endangered Species Act of 1973, 16 U.S.C. §§ 1531 et seq. ("ESA" or "the Act"), and the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq., claiming that FWS violated the ESA and acted arbitrarily and capriciously by simultaneously designating and "delisting" the western Great Lakes DPS…  the Court concludes that FWS failed to acknowledge and address crucial statutory ambiguities in the course of promulgating the Final Rule. The Court therefore vacates the Final Rule and remands to the agency for further proceedings consistent with this Opinion...

RULING: In sum, the ESA could be construed in the way urged by FWS. But it is one thing to say that the statute could bear FWS' interpretation; it is another thing to say that it could bear no others and therefore is unambiguous on the precise question at issue. See, e.g., Air Transport Ass'n of America v. FAA, 169 F.3d 1, 4 (D.C.Cir.1999)...  Therefore, the Court cannot endorse FWS' "plain meaning" reading...

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Photo by Minnesota DNR available from Minnesota NPR.

KEITHINKING:  Though coincidentally timed with the recent emergence of data suggesting that wolf hunting was causing serious population declines in the Northern Rockies, see ESAblawg.com (Sept. 29, 2008), this case addresses a wholly separate legal dispute.  The court disagreed with the FWS on a matter of statutory interpretation, and remanded the issue back to the agency for further consideration.  However, the Court took the additional step of wholly vacating the rule delisting the wolf in the Great Lakes, and thus, reinstated the previous federal regime of wolf management pursuant to the Endangered Species Act.

A statement by the Minnesota Department of Natural Resources explains the decision as follows: "This was a technical legal decision that focused on federal rule-making procedures and will require the federal government to revisit its processes," Stark said. "The ruling had nothing to do with the status of Minnesota's wolf population or the adequacy of state management."

EXCERPT RE: PLAINTIFFS' ARGUMENT: According to plaintiffs, Congress added the term "distinct population segment" to the ESA's definition of "species" for a specific and exclusive purpose: to permit FWS to list a struggling sub-population of an organism that is not endangered or threatened on a broader taxonomic level. See Pls.' Opp. at 16 (arguing that "through this definition Congress extended the protections of the ESA to locally-vulnerable populations of vertebrate fish or wildlife in circumstances where the species as a whole is not endangered or threatened"). Plaintiffs acknowledge that the authority to list DPSs in this manner implies the authority to reclassify or delist DPSs once they have recovered. See Pls.' Opp. at 17. But they argue that Congress did not intend to authorize FWS to simultaneously designate and delist DPSs within broader listings--that is, to "carve out" healthy sub-populations of otherwise endangered or threatened species and remove from those sub-populations the protections of the Act...

EXCERPT RE: FWS ARGUMENT: According to FWS, by revising the definition of "species" to include "distinct population segments," Congress authorized FWS to designate and list a struggling population of an unlisted species (as contemplated by plaintiffs) and to designate and delist a healthy sub-population of a listed species without delisting the species as a whole. See Defs.' Opp. at 3-4. Importantly, FWS contends that this interpretation of the statute is compelled by the plain meaning of the ESA.

EXCERPT RE: ANALYSIS: the ESA could be construed in the way urged by FWS. But it is one thing to say that the statute could bear FWS' interpretation; it is another thing to say that it could bear no others and therefore is unambiguous on the precise question at issue. See, e.g., Air Transport Ass'n of America v. FAA, 169 F.3d 1, 4 (D.C.Cir.1999) ("Although the inference petitioner would draw as to the statute's meaning is not by any means unreasonable, it is also not inevitable" and thus not mandatory). For the reasons stated above, the Court concludes that the ESA is "silent or ambiguous with respect to the specific issue" before the Court. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. at 843. Therefore, the Court cannot endorse FWS' "plain meaning" reading under Chevron step one. See Peter Pan Bus Lines, Inc. v. Federal Motor Carrier Safety Admin., 471 F.3d at 1354.  Furthermore... there is no permissible construction to which the Court can defer. The Final Rule and FWS' papers rely exclusively on a "plain meaning" reading of the ESA which the Court already has rejected. And even assuming that the Court could look elsewhere for an interpretation to which it could defer, there is none in sight....  Thus, the Court will remand the Final Rule to FWS so that the agency can provide a reasonable explanation for the interpretation of the Act which underlies the Final Rule.

EXCERPT RE: REMAND WITH VACATUR: Little confusion or inefficiency will result from reinstating a regulatory regime that was in place from 1978 to 2007, particularly given the fact that state and federal wolf management authorities have been working in tandem for years. Finally, the Court agrees with plaintiffs that the ESA's preference for protecting endangered species counsels strongly in favor of vacating the Final Rule while FWS revisits its statutory interpretation. See NRDC v. U.S. Dep't of the Interior, 275 F.Supp.2d 1136, 1145 (C.D.Cal.2002). The Court therefore will vacate the Final Rule and remand it to the agency for further proceedings.

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