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Center for Biological Diversity v. Jewell

United States District Court, D. Arizona

March 31, 2018

Center for Biological Diversity, et al., Plaintiffs,
v.
Sally Jewell, et al., Defendants. Safari Club International, et al. Plaintiffs,
v.
Sally Jewell, et al., Defendants.

          ORDER

          Honorable Jennifer G. Zipps United States District Judge.

         On January 16, 2015, the United States Fish and Wildlife Service (FWS) published a final agency action entitled “Revision to the Regulations for the Nonessential Experimental Population of the Mexican Wolf, ” pursuant to Section 10(j) of the Endangered Species Act, 16 U.S.C. § 1539. The 2015 “10(j) rule” sets forth FWS's procedures for the release, dispersal, and management of the only existing wild population of Mexican gray wolves in the United States. In the litigation presently before this Court, four sets of Plaintiffs seek to set aside the 10(j) rule and related agency actions as arbitrary and capricious under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A).[1] Plaintiffs each allege that, in promulgating the 10(j) rule, Federal Defendants violated the Endangered Species Act, 16 U.S.C. § 1531, et seq., and the National Environmental Policy Act, 42 U.S.C. § 4321, et seq.

         Currently pending before the Court are twelve related cross-motions for summary judgment, filed by the Plaintiffs, Federal Defendants, and Defendants-Intervenors in the above captioned consolidated cases and in related case No. CV-16-00094-TUC-JGZ.[2]The motions are fully briefed. Oral argument was held on April 26, 2017. After consideration of the parties' arguments and the administrative record in this case, and for the reasons discussed herein, the Court will grant the motions in part, deny the motions in part, and remand this matter to FWS for further consideration consistent with this Order.

         STANDARDS OF REVIEW

         I. Summary Judgment

         Summary judgment is appropriate if the pleadings and supporting documents “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A court presented with cross-motions for summary judgment should review each motion separately, giving the nonmoving party for each motion the benefit of all reasonable inferences from the record. Ctr. for Bio-Ethical Reform, Inc. v. Los Angeles Cnty. Sheriff Dep't, 533 F.3d 780, 786 (9th Cir. 2008). “Summary judgment is a particularly appropriate tool for resolving claims challenging agency action.” Defenders of Wildlife v. Salazar, 729 F.Supp.2d 1207, 1215 (D. Mont. 2010). In such cases the Court's role is not to resolve facts, but to “determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.” Occidental Eng'g Co. v. INS, 753 F.2d 766, 769 (9th Cir. 1985).[3]

         II. The Administrative Procedure Act

         Judicial review of agency actions under the Endangered Species Act and the National Environmental Policy Act is governed by the Administrative Procedure Act (APA). Native Ecosystems Council v. Dombeck, 304 F.3d 886, 891 (9th Cir. 2002). Under APA Section 706(2), the court may set aside agency action where it is found to be arbitrary, capricious, an abuse of discretion or otherwise not in accordance with applicable law. 5 U.S.C. § 706(2)(A). “Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass'n of United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).

         In order to determine whether an agency action is arbitrary and capricious, a reviewing court looks to the evidence the agency has provided to support its conclusions, along with other materials in the record, to ensure the agency made no clear error of judgment. See Judulang v. Holder, 565 U.S. 42, 52-53 (2011); Lands Council v. McNair, 537 F.3d 981, 993 (9th Cir. 2008), overruled on other grounds by Am. Trucking Assns., Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009). That task involves examining the reasons for agency decisions, which must be based on non-arbitrary, relevant factors that are tied to the purpose of the underlying statute. See Judulang, 565 U.S. at 53, 55. The agency must articulate a rational connection between the facts found and the choice made. Forest Guardians v. United States Forest Serv., 329 F.3d 1089, 1099 (9th Cir. 2003). Post hoc explanations of agency action by appellate counsel cannot substitute for the agency's own articulation of the basis for its decision. Arrington v. Daniels, 516 F.3d 1106, 1113 (9th Cir. 2008) (citing Fed. Power Comm'n v. Texaco, Inc., 417 U.S. 380, 397 (1974)). Similarly, the reviewing court “may not supply a reasoned basis for the agency's action that the agency itself has not given.” Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43. Rather, the court's review is “limited to the explanations offered by the agency in the administrative record.” Arrington, 516 F.3d at 1113.

         “The arbitrary and capricious standard is ‘highly deferential, presuming the agency action to be valid and [requires] affirming the agency action if a reasonable basis exists for its decision.'” Kern Cty. Farm Bureau v. Allen, 450 F.3d 1072, 1076 (9th Cir. 2006) (quoting Indep. Acceptance Co. v. California, 204 F.3d 1247, 1251 (9th Cir. 2000)). When examining scientific determinations, as opposed to simple findings of fact, a reviewing court must generally be at its most deferential. Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 103 (1983). This is particularly true when the scientific findings are within the agency's area of expertise. See Lands Council, 537 F.3d at 993. Moreover, “[w]hen not dictated by statute or regulation, the manner in which an agency resolves conflicting evidence is entitled to deference so long as it is not arbitrary and capricious.” Trout Unlimited v. Lohn, 559 F.3d 946, 958 (9th Cir. 2009).

         Nevertheless, the APA requires a “substantial inquiry” to determine whether the agency acted within the scope of its authority. Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977). Thus, although the agency is entitled to a “presumption of regularity, ” the effect of that presumption is not to shield the agency's action from a “thorough, probing, in-depth review, ” and the court's inquiry into facts should be “searching and careful.” Id.

         STATUTORY BACKGROUND

         I. The Endangered Species Act

         Passed in 1973, the Endangered Species Act (ESA or “the Act”), 16 U.S.C. § 1531, et seq., sets forth a comprehensive scheme for the protection of endangered and threatened species in the United States. Cal. ex rel. Lockyer v. United States Dep't of Agric., 575 F.3d 999, 1018 (9th Cir. 2009). Under the ESA, the Secretary of the Interior must identify endangered species, designate their critical habitats, and develop and implement recovery plans. Natural Res. Def. Council, Inc. v. United States Dept. of Interior, 13 Fed.Appx. 612, 615 (9th Cir. 2001). An “endangered species” is a species or subspecies which is “in danger of extinction throughout all or a significant portion of its range.” 16 U.S.C. § 1532(6), (16). A “threatened species” is a species or subspecies that “is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Id. § 1532(20). The Secretary's duties under the ESA are delegated to FWS pursuant to 50 C.F.R. § 402.01(b).

         Described by the Supreme Court as “the most comprehensive legislation for the preservation of endangered species ever enacted by any nation, ” the ESA reflects Congress's desire “to halt and reverse the trend toward species extinction, whatever the cost.” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180 (1978). Congress pronounced the purpose of the ESA to be the conservation of listed species and the ecosystems upon which they depend, 16 U.S.C. § 1531(b), and declared a policy that all federal agencies shall utilize their authorities in furtherance of this purpose. 16 U.S.C. § 1531(c)(1). Thus, the ESA “reflects a conscious decision by Congress” to give listed species primacy over the primary missions of federal agencies, Lockyer, 575 F.3d at 1018, and to afford those species “the highest of priorities.” Or. Natural Res. Council v. Allen, 476 F.3d 1031, 1033 (9th Cir. 2007).

         “Conservation, ” also referred to as “recovery, ” is at the heart of the ESA. Conservation is defined as “the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided [by the ESA] are no longer necessary.” Sierra Club v. United States Fish & Wildlife Serv., 245 F.3d at 438 (citing 16 U.S.C. § 1532(3)). It is the “process that stops or reverses the decline of a species and neutralizes threats to its existence.” Ctr. for Biological Diversity v. Kempthorne, 607 F.Supp.2d 1078, 1088 (D. Ariz. 2009) (quoting Defenders of Wildlife v. Babbitt, 130 F.Supp.2d 121, 131 (D.D.C. 2001)).[4] The ESA's conservation purpose “is reflected not only in the stated policies of the Act, but in literally every section of the statute.” Babbitt v. Sweet Home Chapter of Cmties. for a Great Or., 515 U.S. 687, 699 (1995) (quoting Hill, 437 U.S. at 184); see also Red Wolf Coal. v. United States Fish & Wildlife Serv., 210 F.Supp.3d 796, 803 (E.D. N.C. 2016).

         In carrying out its conservation mandate, FWS must consider the long term viability of the species. To this end, the agency may not ignore recovery needs and focus entirely on survival. See Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 524 F.3d 917, 932 (9th Cir. 2008). Rather, recovery envisions self-sustaining populations that no longer require the protections or support of the Act. Gifford Pinchot Task Force v. United States Fish and Wildlife Serv., 378 F.3d 1059, 1070 (“[T]he ESA was enacted not merely to forestall the extinction of species (i.e., promote a species survival), amended, 387 F.3d 968 (9th Cir. 2004), but to allow a species to recover to the point where it may be delisted.”); Sierra Club v. United States Fish & Wildlife Serv., 245 F.3d 434, 438 (5th Cir. 2001) (“[T]he objective of the ESA is to enable listed species not merely to survive, but to recover from their endangered or threatened status.”).

         In addition, the agency must determine recovery based on the viability of species, not in captivity but in the wild. “In enacting the Endangered Species Act, Congress recognized that individual species should not be viewed in isolation, but must be viewed in terms of their relationship to the ecosystem of which they form a constituent element.” H.R. Conf. Rep. No. 97-835, at 30 (1982), reprinted in 1982 U.S.C.C.A.N. 2860, 2871; H.R. Rep. 95-1625, at 5 (1978), reprinted in 1978 U.S.C.C.A.N. 9453, 9455 (purpose of ESA is not only to reduce threats to the species' existence, but “to return the species to the point where they are viable components of their ecosystems.”). Or, as the Ninth Circuit explained, “the ESA's primary goal is to preserve the ability of natural populations to survive in the wild.” Trout Unlimited, 559 F.3d at 957; accord Cal. State Grange v. Nat. Marine Fisheries Serv., 620 F.Supp.2d 1111, 1156-57 (E.D. Cal 2008). Thus, while the agency may rely on captive populations to reestablish a species in the wild, the goal of recovery is “to promote populations that are self-sustaining without human interference.” Trout Unlimited, 559 F.3d at 957.

         The ESA contains multiple sections, each governing a piece of the Act's comprehensive scheme for the listing, management, and protection of endangered species. Sections 10(j) and 10(a)(1) are relevant to the Court's conclusions herein and are summarized below.

         A. Section 10(j): Experimental Populations

         In 1982, Congress amended the ESA to include Section 10(j), 16 U.S.C. § 1539(j), which established procedures for the designation and management of “experimental populations.” 49 Fed. Reg. 33, 885, 33, 885 (Aug. 27, 1984). Under Section 10(j), the Secretary of the Interior may authorize the release of an experimental population of an endangered species outside the species' current range if the Secretary determines that the release will further the conservation of that species. See 16 U.S.C. § 1539(j). An “experimental population” is defined as “any population (including any offspring arising solely therefrom) authorized by the Secretary for release . . ., but only when, and at such times as, the population is wholly separate geographically from nonexperimental populations of the same species.” Id. § 1539(j)(1). Once designated, an experimental population is treated as “threatened” under the Act, irrespective of the species' designation elsewhere. 50 C.F.R. § 17.82; see 49 Fed. Reg. at 33, 885.

         A Section 10(j) rule is issued in accordance with the APA, which affords the benefit of public comment and serves to address the needs of each particular population proposed for designation. Wyo. Farm Bureau Fed'n v. Babbitt, 199 F.3d 1224, 1232 (10th Cir. 2000) (citing H.R. Conf. Rep. No. 97-835 (1982), reprinted in 1982 U.S.C.C.A.N. 2860, 2875); 49 Fed. Reg. at 33, 886. Before releasing an experimental population under Section 10(j), the Secretary must also develop regulations identifying the experimental population, 16 U.S.C. § 1539(j)(2)(B), the geographic area where the regulations apply, 50 C.F.R. § 17.81(c)(1), and the specific management restrictions that apply to the population. Id. § 17.81(c)(3). The regulations are species-specific and are developed on a case-by-case basis. 49 Fed. Reg. at 33, 886. Once the regulations are finalized and published, the management and conservation of the population is then carried out by FWS in conjunction with other management agencies, including county, state, tribal, and federal entities, often pursuant to a memorandum of understanding signed by all parties. Id.

         Before designating an experimental population, the Secretary must make two specific findings. United States v. McKittrick, 142 F.3d 1170, 1176 (9th Cir. 1998). First, an experimental population may only be released if the Secretary finds the release will “further the conservation of [the] species.” 16 U.S.C. § 1539(j)(2)(A). Factors that must be considered by the Secretary in making this finding include:

(1) Any possible adverse effects on extant populations of a species as a result of removal of individuals, eggs, or propagules for introduction elsewhere;
(2) The likelihood that any such experimental population will become established and survive in the foreseeable future;
(3) The relative effects that establishment of an experimental population will have on the recovery of the species; and
(4) The extent to which the introduced population may be affected by existing or anticipated Federal or State actions or private activities within or adjacent to the experimental population area.

50 C.F.R. § 17.81(b). The Secretary is required to make this determination using the best scientific and commercial data available. Id.

         Second, prior to releasing an experimental population, the Secretary must determine whether the population is essential to the continued existence of the species in the wild. 16 U.S.C. § 1539(j)(2)(B); see also 50 C.F.R. § 17.81(c)(2). “Essential” means the experimental population's loss “would be likely to appreciably reduce the likelihood of the survival of the species in the wild.” 50 C.F.R. § 17.80(b). All other populations are to be classified as “nonessential.” Id. The essentiality finding must be “based solely on the best scientific and commercial data available, and the supporting factual basis[.]” Id. § 17.81(c)(2). Congress anticipated that in most cases experimental populations would be nonessential. S. Rep. No. 97-418, at 9 (1982). This is because the loss of a single experimental population will rarely appreciably reduce the likelihood of the entire species' or parent populations' survival in the wild. See 49 Fed. Reg. at 33, 888. Whether a population is designated “essential” or “nonessential” affects whether federal agencies have a duty to consult with FWS on certain federal actions under ESA Section 7(a)(2). Where a population is designated “nonessential, ” federal agencies are not required to formally consult with FWS on actions likely to jeopardize the continued existence of the species. 16 U.S.C. § 1536(a)(2). Instead, federal agencies must engage in a conferral process that results in conservation recommendations that are not binding upon the agency. Id. § 1536(a)(4). Additionally, the Secretary may not designate critical habitat for an experimental population designated as nonessential. Id. § 1539(j)(2)(C)(ii). To date, the “essential” designation has never been applied to an experimental population of any species. See 50 C.F.R. §§ 17.11, 17.84.

         As with the other provisions of the ESA, conservation and recovery are at the heart of Section 10(j). See Defs. of Wildlife v. Tuggle, 607 F.Supp.2d 1095, 1117 (D. Ariz. 2009) (“USFWS has a non-discretionary duty to ensure that the Final Rule for the Reintroduction Program, 50 C.F.R. § 17.84(k), provides for conservation of the Mexican Wolf.”). Congress enacted Section 10(j) in 1982 as a means of giving greater administrative flexibility to the Secretary in managing reintroduced species. Although Section 10(j) permits the Secretary to treat the species as threatened, irrespective of the species' designation elsewhere, 49 Fed. Reg. at 33, 886, 33, 889, Congress believed that this flexibility would facilitate the reintroduction effort and enhance recovery efforts. See H.R. Rep. No. 97-567, at 33 (1982), reprinted in 1982 U.S.C.C.A.N. 2807, 2833; 49 Fed. Reg. at 33, 887-88; McKittrick, 142 F.3d at 1174 (management flexibility afforded under Section 10(j) “allows the Secretary to better conserve and recover endangered species”). The use of Section 10(j) was accordingly limited to “those instances where the involved parties are reluctant to accept the reintroduction of an endangered or threatened species without the opportunity to exercise greater management flexibility on the introduced population.” 49 Fed. Reg. at 33, 888-89. Even in such cases, the experimental designation would only be applied when “necessitated by the conservation and recovery needs of a listed species, ” and an experimental designation based on nonconservation purposes would not be supported. Id. at 33, 889.

         B. Section 10(a)(1): Permits

         Under Section 10(a)(1)(A) of the ESA, the Secretary may permit actions otherwise prohibited by Section 9 of the Act for scientific purposes or to enhance the propagation or survival of the affected species. 16 U.S.C. § 1539(a)(1)(A). The Secretary's authority includes issuing permits for actions necessary for the establishment and maintenance of experimental populations. Id. The permits may authorize lethal or nonlethal “take, ” which means to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C. § 1532(19). As with the other provisions of the Act, the issuance of individual permits must not conflict with recovery of the species as a whole. “[T]he Secretary is subject to the requirement of Section 10(d) that issuance will not operate to the disadvantage of the listed species, ” and the permit issued must be consistent with the ESA's conservation purpose and policy. S. Rep. No. 97-418 at 8; 16 U.S.C. § 1539(d).

         FACTUAL BACKGROUND

         A subspecies of the gray wolf, the Mexican gray wolf or “Mexican wolf” (Canis lupus baileyi) is native to the forested and mountainous terrain of the American Southwest and northern Mexico. (Revision to the Regulations for the Nonessential Experimental Population of the Mexican Wolf (January 16, 2015), AR FR000136 at ¶ 000138 (hereinafter 2015 10(j) Rule).) The Mexican wolf is relatively small, weighing between 50 and 90 pounds and measuring up to six feet in length. It is patchy black, brown, cinnamon, and cream in color. (Id.) It is the rarest and most genetically distinct subspecies of all the North American gray wolves. (Final Environmental Impact Statement (Nov. 25, 2014), AR N042613 at ¶ 042617 (hereinafter FEIS).) A wanderer and a forager, Mexican wolves may roam across many square miles of available habitat. (1982 Mexican Wolf Recovery Plan, R000887 at ¶ 000894, R000905 (hereinafter 1982 RP).) The Mexican wolf preys principally on elk and other wild ungulates, but will also eat small mammals or birds and prey or scavenge on livestock. (Id. at R000894; 2015 10(j) Rule at ¶ 000138.)

         Though historically numbering in the thousands, by the 1970s the Mexican wolf hovered on the brink of extinction. (2015 10(j) Rule at ¶ 000138.) Like other North American wolves, the Mexican wolf was much maligned during the twentieth century, due to “its reputation as a livestock killer.” (Establishment of a Nonessential Experimental Population of the Mexican Wolf in Arizona and New Mexico (January 12, 1998), AR FR000001 at ¶ 000001 (hereinafter 1998 10(j) Rule).) In the American Southwest, concerted eradication efforts by both public and private entities commenced around the turn of the century, resulting in a rapid reduction in Mexican wolf numbers. (See 1982 RP at ¶ 000895-96; 2010 Conservation Assessment, AR N052264 at ¶ 052283 (hereinafter 2010 CA).) By the 1920s the Southwest's population of resident wolves had been reduced to “a very few scattered individual predators.” (1982 RP at ¶ 000896.) Though occasionally wolves reappeared in Arizona and New Mexico, the product of migration from Mexico, “increasingly effective poisons and trapping techniques during the 1950s and 1960s” effectively eliminated remaining wolves north of the Mexican border. (2010 CA at ¶ 052283-84; 1982 RP at ¶ 000896.) “No wild wolf has been confirmed since 1970, ” and the subspecies was thought to be completely extirpated from its historic range by the 1980s. (2015 10(j) Rule at ¶ 000138.)

         In the late 1970s and early 1980s, the United States and Mexico formally commenced efforts to save the Mexican wolf from extinction. (2014 FEIS at ¶ 042655- 56.) In 1976, the Mexican wolf was first listed under the ESA as an endangered subspecies.[5] (2015 10(j) Rule at ¶ 000137.) In 1977, a binational program aimed at growing and maintaining a captive population of Mexican wolves was initiated, and in 1981 captive breeding officially began. (See Id. at FR000139; 1998 10(j) Rule at ¶ 000002; 2010 CA at ¶ 052270.) All Mexican wolves alive today originated from the seven founding wolves that by 1980 constituted the last of the subspecies. (See FEIS at ¶ 042656.)

         1982 Recovery Plan

         In 1982, in accordance with Section 4(f) of the ESA, FWS published the first Mexican Wolf Recovery Plan, which created a five-part step-down plan for the implementation of the captive breeding program and the eventual reestablishment of wolf populations in the wild. (See 1982 RP at ¶ 000887, et seq.) Written against a backdrop of near-extinction, the 1982 Recovery Plan did not provide criteria for delisting the Mexican gray wolf. (Id. at R000913; 2010 CA at ¶ 052270; 2015 10(j) Rule at ¶ 000138.) Rather, the recovery team determined that the more “realistic” course of action was to set a limited goal of ensuring the wolf's survival by “re-establishing a viable, self-sustaining population of at least 100 Mexican wolves in the middle to high elevations of a 5, 000-square-mile area within the Mexican wolf's historic range.” (1982 RP at ¶ 000913; see also Mexican Wolf Blue Range Reintroduction Project 5-Year Review (Dec. 31, 2005), AR N000556 at ¶ 000574 (hereinafter 5-Yr Review).) At that time, the reintroduction of the subspecies to the wild was seen as a remote possibility, to be taken in the “unseeable future, ” and the recovery team's recommendations were accordingly made with the caveat that future revisions to the plan would be necessary to fully implement reintroduction and recover the species. (See 1982 RP at ¶ 000891.)

         Over the next several decades, FWS continued to breed wolves in facilities throughout the United States and Mexico. (See, e.g., 2015 10(j) Rule at ¶ 000139.) Though by 1997 the captive population had grown to 148 wolves, no wolves had been released back into the wild, due in large part to controversy surrounding reintroduction. (5-Yr Review at ¶ 000559.) As FWS noted, the Mexican wolf reintroduction was “prominent in the American public's eye” long before reintroduction plans formally commenced. (Id.) The questions of “[w]hether reintroduction and recovery should be allowed, and if so where and how, were hotly debated through the 1990s[.]” (Id.) Eventually, in response to litigation against FWS by seven environmental organizations for failure to implement provisions of the ESA, FWS finalized a Section 10(j) rule to reintroduce the Mexican wolf to the wild. (See 2010 CA at ¶ 052285.)

         1998 10(j) Rule

         Like the 1982 Recovery Plan, the 1998 10(j) rule did not purport to set forth criteria sufficient for the recovery of the Mexican wolf. Rather, consistent with the 1982 Recovery Plan, the goal of the 1998 rule was to restore a self-sustaining population of 100 Mexican wolves to the wild. (1998 10(j) Rule at ¶ 000001; 2010 CA at ¶ 052286; Mexican Wolf Recovery: Three-Year Program Review and Assessment (June 2001), AR N046730 at ¶ 046737 [hereinafter 3-Yr Review].) This number was deemed a “starting point to determine whether or not [FWS] could successfully establish a population of Mexican wolves in the wild that would conserve the species and lead to its recovery.” (2015 10(j) Rule at ¶ 000150.) As in years prior, FWS anticipated that recovery objectives, including a population goal sufficient for delisting, would be defined in a future, revised recovery plan. (Id. at FR000002.)

         In March 1998, pursuant to the 1998 10(j) rule, eleven wolves were released into the Blue Range Wolf Recovery Area (BRWRA), constituting the first reintroduction of the subspecies into the wild. (See 1998 10(j) Rule at ¶ 000003.) The rule designated the population as “nonessential experimental” and set forth management directives for the population. (Id.) The rule contemplated that 14 family groups of wolves would be released over the course of five years into the BRWRA, a 6, 854 square-mile stretch of primarily national forest land spanning central Arizona and New Mexico. (Id. at FR000003.) The BRWRA was contained within the larger Mexican Wolf Experimental Population Area (MWEPA), which was a geographic area used to identify members of the population; the MWEPA was not designated as an area for release or translocation of wolves. (Id. at FR000002.) Although the 1998 10(j) rule set a population goal of 100 wolves, authorized agencies could take, remove, or translocate wolves in specified circumstances, and private citizens were given “broad authority” to harass wolves for purposes of scaring them away from people, buildings, pets, and livestock. (Id. at FR000003-04.) Killing or injuring wolves was permitted in defense of human life or livestock. (Id.)

         In the 1998 rule, FWS designated the experimental population as “nonessential.” (Id. at FR000004.) FWS found that the nonessential designation was appropriate because only genetically “redundant” wolves from the captive breeding program would be released into the wild. FWS reasoned that the loss of the experimental population would not significantly affect the likelihood of the survival of the captive population, and that this was true, even though the total population of the subspecies would not constitute a minimum viable population under conservation biology principles. (Id. at FR000005-06; 2010 CA at ¶ 052286.) FWS also found that the “nonessential” designation was necessary to obtain needed state, tribal, local, and private cooperation and would allow for additional “management flexibility” in response to negative impacts, such as livestock depredation. (1998 10(j) rule at ¶ 000004; 2010 CA at ¶ 052286.) Without such flexibility, FWS reasoned, intentional illegal killing of wolves likely would harm the prospects for success. (Id.) FWS indicated that it did not intend to change the population's status to “essential” and could foresee “no likely situation which would result in such changes in the future.” (1998 10(j) rule at ¶ 000004; see also 2010 CA at ¶ 052286.)

         Identification of the Need for ...


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