November 23, 2010
As I am reading through and studying State of Wyoming v. U.S. Fish and Wildlife Service, already it appears a breath of legal fresh air to see the skills put forth from a private law agency as compared to that of the federal government, i.e. the U.S. Fish and Wildlife Service, when they do cowardly battle in the court of law. In the many court battles dealing with gray wolves and the Endangered Species Act, one’s frustration level grows as legal representatives of the U.S. Fish and Wildlife Service (USFWS)/Department of Interior, appear inept, unprepared and unwilling to make the strong representation for which it is their jobs to do.
The Wyoming Wolf Coalition, represented in court by Harriet Hageman of Hageman and Brighton Law Office, did a masterful job in many ways to notch a victory for the Coalition.
The 104-page court ruling takes awhile to get through and contains information that can and will be used in potential appeals and future court cases concerning the gray wolf and Endangered Species Act; as surely there will be.
Obviously the opening statement by Hageman got through to Judge Alan Johnson as the ruling clarifies for all of us that which has been lied about for so long; that Wyoming was right to stand up to USFWS. The ruling’s explanation of what took place in attempts to delist gray wolves in Wyoming is clear and concise.
“In this case, the petitioners assert that the FWS has chosen to ignore the prior history of this case, has caved in to political pressures, ignoring the requirements of the Endangered Species Act and has relied on information other that the best scientific and commercial data available in making its decision not to approve Wyoming’s wolf management plan providing for a dual classification (trophy and predator) within certain areas of the state of Wyoming. The petitioners contend that the FWS allowed political and public relations considerations and speculative concerns about post-delisting lawsuits to influence its decision, even though the FWS’s own biologists and an independent panel of peer review biologists believed that classifying wolves as predators throughout most of Wyoming would not threaten the viability of the gray wolf population in the Northern Rocky Mountain region, as long as the state classified wolves as trophy game in Northwestern Wyoming.
On December 12, 2007, FWS approved a Wyoming wolf management scheme. On February 27, 2008, FWS issued a final rule recognizing NRM DPS and delisting the NRM wolf population in all of the DPS. 73 Fed. Reg. 10514 (2008 rule).
Wyoming’s then-approved wolf management scheme classified wolves as trophy game in a designated area of northwestern Wyoming and as predators throughout the remainder of Wyoming. After the delisting decision, the United States District Court for the District of Montana issued a preliminary injunction which relisted the NRM wolf population pending final resolution in that matter. Petitioners state that the Montana District Court chastised FWS for not explaining why this dual classification in Wyoming was approved in 2007 when it had been rejected in 2004 and 2006. The petitioners state: ‘This rebuke from the court left the Service with only one option if it wanted to save the delisting rule — the Service had to admit that it was wrong to demand the statewide trophy game classification in 2004 and 2006. Rather than admit this, the Service instead rescinded the delisting rule and eventually revoked it’s previous approval of the state’s wolf management scheme.’ State/Park County Brief, Docket entry 26 at 2. FWS ‘now again refuses to delist wolves in Wyoming unless the state adopts a statewide trophy game classification for wolves’ and has ‘chosen pride over its legal obligation to follow the unambiguous requirements of the ESA[.] Id.”
At this point in time during the background information of Johnson’s ruling, the judge explains Defenders of Wildlife v. Hall and how it pertains to Wyoming’s attempts at getting approval of a wolf management plan and being reject after pressure from environmentalists to do so.
Judge Johnson finishes his explanation:
“Thereafter, FWS met with Wyoming representatives, notified them of shortcomings in the Wyoming scheme and requested revisions. Wyoming declined to do so. At FWS request, on October 14, 2008, the 2008 rule was vacated and remanded to the agency for further consideration. Docket Entry 31 at 7-8; Exhibit B, Docket Entry 27 at 15125.
After this ruling on the preliminary injunction in Montana, Wyoming prepared emergency regulations and a draft revised wolf management plan on October 27, 2008. Attachment C to Document 26 (Emergency Chapter 21 Rule) and Attachment D to Docket Entry 26 (Chapter 21 Rule). The FWS notified the governor on January 15, 2009 that Wyoming no longer had an FWS approved wolf management plan.”
And there you have it. For months news media and environmentalists, along with the uninformed spouted off that Wyoming was the problem with the delisting effort of wolves. They also stated that Wyoming refused to draft a wolf plan that the USFWS would approve. The information contained in this court ruling clearly lays out the events and time line of how Wyoming did have an approved plan that for no explained reason was rejected.
This of course was the basis of the case, that the USFWS acted arbitrarily and capriciously in yanking out from under Wyoming its approved wolf plan.
I believe there is some crow eating going on.
Tom Remington
Judge Rules USFWS Was “Arbitrary and Capricious” In Rejecting Wyoming’s Wolf Plan
November 18, 2010
Editor’s Note: The following is a press release sent out by the Wyoming Wolf Coalition. The Wyoming Wolf Coalition is a petitioner-intervenor in the case of the State of Wyoming v. United States Fish and Wildlife Service. This court ruling should fly in the face of those who chastised the state of Wyoming for holding out on their belief that the U.S. Fish and Wildlife Service was wrong to first approve the Wyoming Wolf Plan and then reject it once under pressure from environmental groups.
CHEYENNE, Nov. 18, 2010–In a Nov. 18, 2010 ruling, United States District Judge Alan Johnson ruled that the United States Fish and Wildlife Service’s (USFWS) rejection of the Wyoming Wolf Management plan was arbitrary and capricious. The court remanded the issue back to the USFWS to fix.
“We are pleased with the decision,” Harriet Hageman, attorney for the Wyoming Wolf Coalition, stated. “We have felt all along the USFWS actions weren’t based on science.”
The Wyoming Wolf Coalition is a petitioner-intervenor in the case of the State of Wyoming v. United States Fish and Wildlife Service.
“The deal from the beginning was that the gray wolf would be introduced into and managed in the Yellowstone area,” Hageman continued. “The FWS rejection of the Wyoming Wolf Management plan was an effort to force Wyoming to adopt a management plan that ensures that the wolves move throughout the State. That is directly contrary to everything that the FWS told us when they brought the wolves into Yellowstone.”
Judge Johnson wrote in his ruling: “There is no scientific or commercial data that suggest the state’s dual classification of wolves, in and of itself, cannot meet, accomplish, and maintain the identified recovery goals in the GYA, including northwestern Wyoming.”
He continued in his writing: “….the agency’s requirement that the trophy game management area, rather than that portion of northwestern Wyoming (including the GYA recovery area) necessary to facilitate movement and ensure dispersal of wolves so as to preserve genetic connectivity and to ensure that self sustaining populations will be maintained above recovery goals, is arbitrary and capricious and should be set aside.”
In the order Judge Johnson remanded the matter back to the USFWS saying the agency should determine: “…whether the proposed regulatory framework ensures the conservation and protection of gray wolves in an approved trophy game area in northwestern Wyoming as required by the Endangered Species Act, and to analyze in this context the defense of property and wolf depredation laws in considering whether the management plan is an adequate regulatory mechanism.”
It is now up to the USFWS to determine if they will appeal the decision. If they appeal, the case would go before the 10th Circuit Court of Appeals.
In 2004, 27 different associations, including agriculture, wildlife interests and county government joined together to form the “Wolf Coalition.”
“Wildlife interests, county governments and agriculture have come together recognizing the need to protect livestock and the depleted wildlife populations,” Hageman stated. “This broad diversity of organizations shows the significant impacts wolf introduction is having on Wyoming citizens.”
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