Litigators Line Up Again to Protect Wolves

Rebecca K. Smith
P.O. Box 7584
Missoula, Montana 59807
Ph: (406) 531-8133
Fax: (406) 830-3085
Email: publicdefense@gmail.com
James Jay Tutchton
Tutchton Law Office, LLC
6439 E. Maplewood Ave.
Centennial, CO 80111
Ph: (720) 301-3843
Email: jtutchtontlo@gmail.com
(Pending approval of pro hac vice motion)
Attorneys for Plaintiffs
UNI T ED ST A T ES DISTRI C T C OURT
F OR DISTRI C T O F MONT ANA
MISSOUL A DI VISION
ALLIANCE FOR THE WILD ROCKIES, )
FRIENDS OF THE CLEARWATER, and )
WILDEARTH GUARDIANS, ) Case No.
)
Plaintiffs, )
)
vs. ) C OMPL AINT F OR
) DE C L ARA T ORY AND
KEN SALAZAR, in his official capacity as ) INJUNC T I V E RE L I E F
United States Secretary of the Interior, )
ROWAN GOULD, in his official capacity as)
Acting Director of the United States Fish )
and Wildlife Service, and )
UNITED STATES FISH AND WILDLIFE )
SERVICE, )
)
Defendants. )
)
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INTRODUC T ION
1. Through this suit, Plaintiffs challenge the Federal Defendants’
action re-instituting the rule removing gray wolves in all areas of the
Northern Rocky Mountains Distinct Population Segment (“DPS”) outside of
Wyoming from the list of species protected under the Endangered Species
Act (“ESA”). See 74 Fed. Reg. 15123 (April 2, 2009) (delisting rule). This
Court previously struck down this delisting rule because the Court
concluded that delisting less than an entire DPS exceeded Defendants’
statutory authority under the ESA. See Defenders of Wildlife, et al. v.
Salazar, et al., 729 F.Supp.2d 1207 (D. Mont. 2010). Subsequently, while
this Court’s decision striking down the delisting rule remains pending on
appeal, Congress passed and the President signed H.R. 1473, the Department
of Defense and Full Year Continuing Appropriations Act of 2011. Section
1713 of this Act directed the Federal Defendants to take the challenged
action re-instituting the delisting rule previously struck down by this Court.
P.L. 112-10 § 1713, 125 Stat. 38 (April 15, 2011) (hereinafter the “Budget
Rider”). The Budget Rider did not amend the ESA in any manner and is
simply a legislative and executive effort to reverse this Court’s holding in
Defenders of Wildlife, 729 F.Supp.2d 1207. As a legislative enactment
designed to affect the outcome of a particular pending case, without
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amending the underlying statute involved, the Budget Rider violates the
Separation of Powers Doctrine contained in the U.S. Constitution and is
therefore unconstitutional. See U.S. v. Klein, 80 U.S. 128 (1871).
Accordingly, Plaintiffs seek a declaratory judgment that the Budget Rider is
unconstitutional and injunctive relief prohibiting its implementation.
JURISDI C T ION AND V ENUE
2. This Court has jurisdiction over Plaintiffs’ claim pursuant to 28
U.S.C. § 1331 (federal question) and may issue a declaratory judgment and
injunctive relief pursuant to 28 U.S.C. §§ 2201-02.
3. Venue is proper in this District under 28 U.S.C. § 1391 because
lead Plaintiff Alliance for the Wild Rockies resides in the District of
Montana; land affected by the challenged action is within the District of
Montana? and a substantial part of the events giving rise to Plaintiffs’ claim
occurred in this District. Venue is proper in the Missoula Division because
every county within the Missoula Division is also within the Northern
Rocky Mountain gray wolf DPS and is affected by the challenged action. In
addition, the case which the Budget Rider attempts to reverse, Defenders of
Wildlife, 729 F.Supp.2d 1207 arose in the Missoula Division.
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PART I ES
4. Plaintiff ALLIANCE FOR THE WILD ROCKIES (“AWR”) is
a tax-exempt, non-profit, public-interest organization dedicated to the
protection and preservation of the native biodiversity or the Northern
Rockies Bioregion, its native plants, fish and animal life, and its naturally
functioning ecosystems. AWR has over 2,000 individual members and more
than 500 member businesses and organizations. AWR is a plaintiff in
Defenders of Wildlife, et al. v. Salazar, et al. , 729 F.Supp.2d 1207 (D. Mont.
2010).
5. Plaintiff FRIENDS OF THE CLEARWATER (“FOC”), a
recognized non-profit organization since 1987, defends the Idaho Clearwater
Bioregion’s wildlands and biodiversity through a Forest Watch program,
litigation, grassroots public involvement, outreach and education. The Wild
Clearwater Country, the northern half of central Idaho’s Big Wild, contains
many unprotected roadless areas and wild rivers, and provides crucial habitat
for countless rare plant and animal species. FOC strives to protect these
areas, restore degraded habitats preserve viable populations of native
species, recognize national and international wildlife corridors, and to
protect public lands. FOC is a plaintiff in Defenders of Wildlife, et al. v.
Salazar, et al., 729 F.Supp.2d 1207 (D. Mont. 2010).
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6. Plaintiff WILDEARTH GUARDIANS (“Guardians”) is a
relatively new conservation organization created on January 28, 2008 from
the merger of three older organizations: Forest Guardians, Sinapu (the Ute
word for wolf), and the Sagebrush Sea Campaign. Guardians continues the
work of these three predecessor organizations. Guardians’ mission is to
protect and restore wildlife, wild rivers, and wildlands throughout the
American West. Headquartered in Santa Fe, New Mexico, Guardians also
maintains offices in Denver, Colorado and Phoenix, Arizona. The
organization has approximately 4,500 members who live throughout the
country, including within the range of the wolf in the Northern Rocky
Mountains.
7. All Plaintiffs file suit on behalf of themselves and their
adversely affected members. All Plaintiffs have long-standing interests in
the preservation and recovery of gray wolves in the northern Rockies,
because Plaintiffs and their members place a high value on preserving
wolves and their critical role in the functioning of healthy ecosystems.
Plaintiffs seek to protect and recover the gray wolf through a wide array of
actions including public education, scientific analysis, and legal advocacy
promoting healthy ecosystems in the region.
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8. Members of each of the Plaintiff conservation groups use public
land in the northern Rocky Mountains for recreational pursuits, including
hiking, camping, backpacking, hunting, fishing, skiing, wildlife viewing, and
aesthetic enjoyment. Members of the Plaintiff groups seek to view wolves
and signs of wolf presence in the wild throughout the northern Rockies, and
Defendants’ challenged action will reduce their opportunity to do so. The
removal of Endangered Species Act protection for gray wolves in most of
the northern Rockies will also cause irreparable ecological harm to the
ecosystems where wolves are now found. The legal violation alleged in this
Complaint causes direct injury to the aesthetic, conservation, recreational,
scientific, educational and wildlife preservation interests of Plaintiff
organizations and their members.
9. Plaintiffs’ aesthetic, conservation, recreational, scientific,
educational and wildlife preservation interests have been, are being, and,
unless their requested relief is granted, will continue to be adversely and
irreparably injured by the Federal Defendants’ unconstitutional conduct.
Additionally, Plaintiffs AWR and FOC have been, are being, and unless
their requested relief is granted, will continue to be adversely and irreparably
injured by the deprivation of the successful judicial relief they obtained from
this Court in Defenders of Wildlife, et al. v. Salazar, et al., 729 F.Supp.2d
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1207 (D. Mont. 2010). These are actual, concrete injuries traceable to
Defendants’ conduct that would be redressed by the requested relief.
Plaintiffs have no adequate remedy at law.
10. Defendant KEN SALAZAR is the U.S. Secretary of the
Interior. In that capacity, Secretary Salazar has supervisory authority over
the U.S. Fish and Wildlife Service. Defendant Salazar is sued in his official
capacity.
11. Defendant ROWAN GOULD is the Acting Director of the U.S.
Fish and Wildlife Service. Defendant Gould is sued in his official capacity.
12. Defendant UNITED STATES FISH AND WILDLIFE
SERVICE (“FWS” or the “Service”) is a federal agency within the U.S.
Department of the Interior. FWS is responsible for administering the ESA
with respect to terrestrial wildlife such as gray wolves.
13. Defendants Salazar, Gould, and FWS (collectively the “Federal
Defendants”) are responsible for implementing the unconstitutional Budget
Rider challenged in this suit.
T H E SEPARA T ION O F POWERS DO C TRINE
14. The Separation of Powers Doctrine, setting apart the executive,
legislative, and judicial functions of government is one of the basic
constitutional “checks and balances” contained in the Constitution. As Chief
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Justice Marshall wrote nearly two hundred years ago, “[t]he difference
between the departments undoubtedly is, that the legislature makes, the
executive executes, and the judiciary construes the law.” Wayman v.
Southard, 23 U.S. 1 (1825). See also Marbury v. Madison, 5 U.S. 137
(1803) (establishing authority of judicial branch, including authority to order
executive to comply with law and to overrule acts of Congress).
15. By incorporating the Separation of Powers Doctrine into the
basic checks and balances of the Constitution, the framers paid heed to the
political philosopher Montesquieu’s warning that “[w]hen the legislative and
executive powers are united in the same person, or in the same body of
magistrates, there can be no liberty. . . . [T]here is no liberty, if the judiciary
power is not separated from the legislative and executive.” Baron de
Montesquieu, The Spirit of the Laws, bk. XI, ch. 6.
16. Defending the Constitution in the Federalist Papers, James
Madison agreed with Montesquieu describing the Separation of Powers
Doctrine as “essential to a free government.” The Federalist No. 48 at 308,
James Madison, New American Library ed., 1861.
17. In keeping with the framers’ intent, the Supreme Court has
stated:
The doctrine of separation of powers is fundamental in our system. It
arises, however, not from Art. III nor any other single provision of the
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Constitution, but because “[b]ehind the words of the constitutional
provisions are postulates which limit and control.”
National Mut. Ins. Co. of the Dist. of Col. v. Tidewater Transfer Co., 337
U.S. 582, 590-91 (1949), quoting Principality of Monaco v. Mississippi, 292
U.S. 313, 322 (1934).
18. In interpreting the Constitution’s Separation of Powers
Doctrine, the Supreme Court has held that Congress has authority to make
prospective changes in the law, and that even if it does so in a manner
intended to impact the outcome of pending litigation its exercise of its
prospective law-making authority is not unconstitutional. Robertson v.
Seattle Audubon Soc., 503 U.S. 429 (1992).
19. On the other hand, if Congress passes a law directing the
judiciary to reach a particular outcome in a pending case under existing law
– yet does not amend the existing law — Congress exceeds its Constitutional
authority and treads on the judiciary’s authority to construe existing law.
U.S. v. Klein, 80 U.S. 128 (1871).
20. Accordingly, the question of whether a law which influences
the outcome of a pending case is unconstitutional in violation of the
Separation of Powers Doctrine depends on whether Congress amends
existing law, and thus behaves constitutionally under Robertson, or whether
Congress directs the judiciary as to its construction of law and decision-
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making in a pending case, and thus behaves unconstitutionally under Klein.
F A C TUA L A L L E G A T IONS
I. The Court’s Prior Ruling Construing Existing Law
21. On August 5, 2010, this Court vacated and set aside the Federal
Defendants’ April 2, 2009 Final Rule to Identify the Northern Rocky
Mountain Population of Gray Wolf as a District Population Segment, 74
Fed. Reg. 15,123. Defenders of Wildlife, et al. v. Salazar, et al., 729
F.Supp.2d 1207, 1229 (D. Mont. 2010). The Court reached this conclusion
by construing the Endangered Species Act (ESA) and determining that the
challenged Final Rule violated the plain language of the statute by taking delisting
action at a level below that allowed by the ESA – i.e. treating
different portions of a unified DPS differently. Id. at 1221-22 (“By listing
and/or protecting something less than a DPS, the Service violated the plain
terms of the ESA”)? see also id. at 1228 (“The northern Rocky Mountains
DPS must be listed, or delisted, as a district population and protected
accordingly”).
22. The Federal Defendants and Defendant-Intervenors in
Defenders of Wildlife v. Salazar appealed the Court’s ruling. These appeals
remain pending. Nos. 10-35885, 10-35886, 10-35894, 10-35897, 10-35898,
and 10-35926 (9th Circuit).
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I I. The Budget Rider
23. On April 15, 2011, the President signed into law H.R. 1473, the
Department of Defense and Full-Year Continuing Appropriations Act of
2011. P.L. 112-10 § 1713, 125 Stat. 38 (April 15, 2011). Section 1713 of
this Act states in its entirety:
Before the end of the 60-day period beginning on the date of
enactment of this Act, the Secretary of the Interior shall reissue the
final rule published on April 2, 2009 (74 Fed. Reg. 15213 et seq.)
without regard to any other provision of statute or regulation that
applies to issuance of such rule. Such reissuance (including this
section) shall not be subject to judicial review and shall not abrogate
or otherwise have any effect on the order and judgment issued by the
United States District Court for the District of Wyoming in Case
Numbers 09-CV-118J and 09-CV-138J on November 18, 2010.
Id. On May 5, 2011, pursuant to the Congressional direction above, the
Secretary reissued the April 2, 2009 Final Rule that was previously vacated
and set aside by this Court as contrary to the plain language of the ESA. 76
Fed. Reg. 25590 (May 5, 2011).
24. Section 1713 of H.R. 1473 is the only section of the
approximately 459-page budget bill discussing the wolf-delisting rule.
I I I. The Budget Rider Does Not Amend the ESA
25. Because Section 1713 of H.R. 1473 was a “rider” embedded in
an approximately 459-page budget bill its legislative history is sparse.
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26. Section 1713 of H.R. 1473 apparently grew out of a bill
introduced by Senators Max Baucus and Jon Tester of Montana on February
10, 2011. S. 321. See Cong. Rec. Vol. 157, No. 21 (February 10, 2011) at
S642. This bill, the “Delisting Gray Wolves to Restore State Management
Act of 2011,” provided:
Notwithstanding any other provision of law (including regulations),
effective beginning on the date of enactment of this Act, the final rule,
entitled ‘Endangered and Threatened Wildlife and Plants; Final Rule
To Identify the Northern Rocky Mountain Population of Gray Wolf as
a Distinct Population Segment and To Revise the List of Endangered
and Threatened Wildlife’ (74 Fed. Reg. 15123 (April 2, 2009)), shall
have the full force and effect of law.
Id.
27. A provision similar to S. 321 also appears as Section 1713 in
H.R. 1, the House’s initial budget bill for Fiscal Year 2011.
Before the end of the 60-day period beginning on the date of
enactment of this division, the Secretary of the Interior shall reissue
the final rule published on April 2, 2009 (74 Fed. Reg. 15123 et seq.)
without regard to any other provision of statute or regulation that
applies to issuance of such a rule. Such reissuance (including this
section) shall not be subject to judicial review.
H.R. 1 at 266. On February 16, 2011, Rep. Cynthia Lummis of Wyoming
attempted to amend Section 1713 of H.R. 1 to change the reference to the
April 2, 2009 delisting rule to the February 27, 2008 delisting rule, 73 Fed.
Reg. 10514, that included Wyoming. Her amendment failed. Cong. Rec.
Vol. 157, No. 25 (February 16, 2011), at H984.
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28. The next discussion of Section 1713 in the Congressional
Record took place on March 9, 2011 when Senator Cardin stated:
And finally, the Senate bill is a dramatic improvement over H.R. 1 in
terms of environmental policy. The other body approved legislative
riders that would stop EPA from being able to protect the air
Americans breathe every day and it would stop dead in its tracks the
Chesapeake Bay restoration effort. The Senate bill, to its credit,
eliminates these terrible policy directives. The Senate bill, however,
does include a provision that would legislatively de-list the gray wolf
from the endangered species list. I continue to oppose legislative
efforts to delist endangered species. We have a regulatory process that
is based on scientific data, and we should use it. All that is needed is
for the States in the Northern Rockies to submit appropriate
management plans to the Department of Interior so that the law can
work the way Congress intended.
Cong. Rec. Vol. 157, No. 35 (March 9, 2011), p. S1477. H.R. 1 failed in the
Senate on March 9, 2011. Id.
29. H.R. 1473 was introduced on April 11, 2011. Between April
11th and April 15th 2011, when H.R. 1473 became law, Section 1713 was
mentioned only three times in the Congressional Record. On April 13, 2011
Senator Cardin criticized Section 1713:
I will make it clear, Mr. President. I am very disappointed by many of
the provisions included in this compromise. It is a true compromise. It
is not what the Democrats would have written, I can assure you of
that, and it is not what the Republicans would have written. It is a true
compromise, and that is what we had to go through, I understand, but
I feel compelled to at least let the people of Maryland know the cost
of the compromises… There is a rider that was attached that did
survive that deals with the delisting of the great wolf under the
Endangered Species Act. That is not how we should be acting. There
is a remedy for dealing with the delisting. There is a process we go
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through. We shouldn’t go down a dangerous precedent that starts
congressional or political action on delisting species that are included
under the Endangered Species Act.
Cong. Rec. Vol. 157, No. 54, at S2421. On April 14, 2011, Senator Cardin
again criticized Section 1713:
I pointed out yesterday that on the environmental front regarding the
Endangered Species Act, there is a provision that delists the great
wolf. That shouldn’t be targeted for congressional action. That is a
dangerous precedent for us to set.
Cong. Rec. Vol. 157, No. 55, at S2473. Finally, on April 14, 2011, the text
of Section 1713 of H.R. 1473 as passed appears in the Congressional
Record. Cong. Rec. Vol. 157, No. 55, at H2720.
30. Though sparse, this legislative history makes clear that at no
time in its consideration of Section 1713 of H.R. 1473, or its predecessors,
did Congress consider actually amending the ESA. Rather, Congress was
merely trying to return the April 2, 2009 delisting rule to force without
amending the governing Statute.
31. The statements of the proponents of Section 1713 outside of the
sparse Congressional debates makes it abundantly clear that Congress
designed Section 1713 to overturn this Court’s decision in Defenders of
Wildlife v. Salazar, 729 F.Supp.2d 1207, and not to amend the ESA.
32. On February 10, 2011, Senator Jon Tester of Montana posted
an entry on his Facebook page, announcing the filing of his bill, S. 321, with
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Senator Max Baucus, stating: “[t]he Baucus-Tester bill would restore
management practices as they were before the 2010 court ruling that resulted
in the return of the gray wolf to federal management under the endangered
species act.”
33. On February 15, 2011, Idaho Congressman Mike Simpson
issued a press release stating he was “spearheading an effort to undo the
August 2010 ruling by Judge Molloy that put wolves back on the
endangered species list.”
34. On March 18, 2011 Representative Mike Simpson of Idaho
issued a press release stating that he had included language in H.R. 1,
legislation continuing operations for the federal government for the
remainder of the fiscal year, “to overturn Judge Molloy’s decision and return
management of wolf populations in the region to states with approved
management plans ….” (emphasis added).
35. On April 12, 2011 Representative Mike Simpson of Idaho
issued a press release stating that his language in H.R. 1473 “overturns the
August 2010 decision by a district court in Montana to put wolves in Idaho,
Montana, Oregon, Washington, and Utah back on the endangered species list
….” (emphasis added).
36. Also on April 12, 2011, the Associated Press wrote an article on
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the H.R. 1473, quoting Jon Tester, and stating: “[l]awmakers said they
inserted the rider to circumvent a federal judge who repeatedly blocked
proposals to hunt [wolves].”
37. On April 13, 2011, the New York Times published an article on
Section 1713 of H.R. 1473 describing it as a proposal from Senator Jon
Tester of Montana and Representative Mike Simpson of Idaho and quoting
Senator Tester as saying “[w]e didn’t amend the Endangered Species Act”
(emphasis added).
38. On April 14, 2011, Senator Jon Tester issued a press release
stating that Congress had approved his plan to remove gray wolves in
Montana from the endangered species list. Tester’s press release also
thanked Representative Mike Simpson for his leadership on the issue in the
House of Representatives and stated: “[a]fter a judge’s ruling against
Montana’s wolf management plan last year, Tester has fought hard to put
wolves back under the management of the state.”
39. The Solicitor of the U.S. Department of the Interior is in
agreement with Plaintiffs that Section 1713 of H.R. 1473 did not amend the
Endangered Species Act. On May 4, 2011, the Solicitor issued a
Memorandum, M-37024, withdrawing her predecessor’s March 16, 2007,
Opinion, M-37013, on the Meaning of “In Danger of Extinction Throughout
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All or a Significant Portion of its Range” previously rejected by this Court in
Defenders of Wildlife, et al. v. Salazar, et al. , 729 F.Supp.2d 1207, 1229 (D.
Mont. 2010). The Solicitor’s May 4, 2011 Memorandum, M-37024, states:
As noted above Sec. 1713 of P.L. 112-10 directed reissuance of the
2009 Northern Rocky Mountain wolf rule. Nothing in that section
affects my authority to withdraw Opinion M-37013. The statute is
applicable only to the issuance of this single rule; it makes no
reference to Opinion M-37013 nor does it amend the Endangered
Species Act generally.
Memorandum M-37024 at n. 4.
C L AIM F OR RE L I E F
40. Plaintiffs incorporate by reference all proceeding paragraphs of
this Complaint into their claim for relief.
41. Section 1713 of H.R. 1473 does not amend the Endangered
Species Act. Rather Section 1713 of H.R. 1473 merely directs the Federal
Defendants to reissue the Final Rule delisting wolves throughout all of the
northern Rocky Mountains DPS outside of Wyoming in order to reverse this
Court’s ruling setting aside and vacating the Final Rule as contrary to the
plain language of the ESA. Defenders of Wildlife, et al. v. Salazar, et al.,
729 F.Supp.2d 1207, 1229 (D. Mont. 2010). In so doing, Congress
impermissibly trespassed on the judiciary’s power to construe existing law
and thereby violated the Separation of Powers Doctrine contained in the
United States Constitution. U.S. v. Klein, 80 U.S. 128 (1871).
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PRA Y ER F OR RE L I E F
THEREFORE, Plaintiffs respectfully request this Court:
A. Declare Section 1713 of H.R. 1473, the Department of Defense
and Full-Year Continuing Appropriations Act of 2011, P.L. 112-10 § 1713,
125 Stat. 38 (April 15, 2011), unconstitutional in violation of the Separation
of Powers Doctrine contained in the Constitution.
B. Declare the Federal Defendants’ reissuance of the Final Rule
delisting the northern Rocky Mountains gray wolf Distinct Population
Segment outside of the State of Wyoming unconstitutional and void in
violation of the Separation of Powers Doctrine contained in the Constitution.
C. Order the Federal Defendants’ to return the northern Rocky
Mountains gray wolf Distinct Population Segment to the protection of the
ESA until such DPS is delisted in accordance with law.
D. Award Plaintiffs their reasonable attorneys’ fees, costs, and
expenses associated with this litigation consistent with the Equal Access to
Justice Act, 28 U.S.C. § 2412, or other applicable authority, and
E. Grant Plaintiffs such further and additional relief as the Court
may deem just and proper.
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Respectfully submitted,
Dated: May 5, 2011
/s/ Rebecca K. Smith
Rebecca K. Smith
P.O. Box 7584
Missoula, Montana 59807
Ph: (406) 531-8133
Fax: (406) 830-3085
Email: publicdefense@gmail.com
James Jay Tutchton
Tutchton Law Office, LLC
6439 E. Maplewood Ave.
Centennial, CO 80111
Ph: (720) 301-3843
Email: jtutchtontlo@gmail.com
(Pending approval of pro hac vice motion)
Attorneys for Plaintiffs

===

Christopher Karr
Karr Law Firm, PLLC
517 E. Spruce Street
Missoula, Montana 59802
608-213-4921
karrlawfirm@gmail.com
Attorney for Plaintiff
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
CENTER FOR BIOLOGICAL
DIVERSITY,
Plaintiff,
vs.
KEN SALAZAR, Secretary of the
Interior; ROWAN GOULD, Acting
U.S. Fish and Wildlife Service Director;
and UNITED STATES FISH AND
WILDLIFE SERVICE,
Defendants.
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CASE NO.
COMPLAINT FOR
DECLARATORY
AND INJUNCTIVE RELIEF
INTRODUCTION
1. In this case, plaintiff Center for Biological Diversity challenges the
constitutionality of Section 1713 of the Department of Defense and Full-Year
Continuing Appropriations Act of 2011, P.L. 112-10 (“Section 1713” or the
“Rider”), as applied by the U.S. Department of the Interior and the U.S. Fish and
Case 9:11-cv-00071-DWM Document 1 Filed 05/05/11 Page 1 of 16
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Wildlife Service (“FWS”) in their May 5, 2011 reissuance of the April 2, 2009
final rule delisting the gray wolf (“Delisting Rule”) under the Endangered Species
Act, 16 U.S.C. §§ 1531-1544 (“ESA” or “Act”). See 74 Fed. Reg. 15,123 (Apr. 2,
2009); 76 Fed. Reg. 25,590 (May 5, 2011).
2. Section 1713, enacted as a rider to the government’s appropriations
bill, is a response to this Court’s August 2010 declaration that the Delisting Rule’s
removal of ESA protections for the gray wolf in the northern Rocky Mountains
violated the ESA. Defenders of Wildlife et al. v. Salazar et al., 729 F.Supp.2d
1207 (D. Mont. 2010) (“DOW v. Salazar”); see 75 Fed. Reg. 65,574 (Oct. 26,
2010) (reinstating ESA protections for the gray wolf in the northern Rockies).
This Court’s Order is currently pending on appeal before the Ninth Circuit Court of
Appeals. Without amending the ESA, Section 1713 directs FWS to reissue the
Delisting Rule and purports to remove the courts’ ability to adjudicate the
lawfulness of the Delisting Rule. It is the only time, in the ESA’s nearly 40-year
history, that Congress has legislatively delisted a species.
3. Even as it directs a legislative outcome to a matter pending before the
federal courts, Section 1713 provided no new circumstances or substantive law,
and did not amend the ESA. As such, Section 1713 is in violation of the separation
of powers that must be maintained between the legislative and judicial branches
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under the U.S. Constitution. Accordingly, the reissued Delisting Rule is unlawful
and must be set aside.
JURISDICTION
4. Judicial review of agency action is provided by the Administrative
Procedure Act, 5 U.S.C. §§ 701-706 (“APA”). This Court has jurisdiction over
Plaintiff’s claims pursuant to 28 U.S.C. § 1331 (federal question), 1346 (United
States as a defendant), and § 1361 (Action to compel an officer of the United
States to perform his duty).
5. The Court may issue a declaratory judgment and further relief
pursuant to 28 U.S.C. §§ 2201-02.
VENUE
6. Venue is proper in this District under 28 U.S.C. § 1391 because one or
more of Plaintiff’s members reside in the District of Montana; land affected by the
challenged action is within the District of Montana; and a substantial part of the
events or omissions giving rise to Plaintiff’s claims occurred in this District.
Venue is proper in the Missoula Division because every county within the
Missoula Division is also within the northern Rocky Mountain gray wolf’s range
that is affected by the challenged action.
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PARTIES
7. Plaintiff Center for Biological Diversity is a nonprofit organization
dedicated to the preservation, protection, and restoration of biodiversity, native
species, and ecosystems. The Center was founded in 1989, and is based in Tucson,
Arizona with offices in California, Minnesota, New Mexico, Oregon, Washington,
and Washington, D.C. The Center has more than 42,000 members, including many
who reside in, explore, and enjoy the northern Rockies and the gray wolf.
8. The Center has advocated for gray wolf recovery since the 1990s.
The Center and its members wish to see healthy gray wolf populations in all
suitable habitat throughout the species’ historic range in the conterminous U.S.
including the northern Rockies. To realize that vision, the Center has participated
in countless rulemakings for wolf management and has halted multiple unlawful
downlisting and delisting attempts by FWS through litigation. The Center also
runs conservation programs in all regions of the United States, including in regions
where efforts are needed to conserve the species and its habitats.
9. Members of the Center hike, camp, backpack, ski, and view and
photograph wildlife and plants in the northern Rockies. Members of the Center
seek to view wolves and signs of wolf presence in the wild. The reissued Delisting
Rule will reduce their opportunity to do so. The legal violations alleged in this
complaint cause direct injury to the aesthetic, conservation, recreational, scientific,
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educational, and wildlife preservation interests of the Center and its members.
Elimination of ESA protections for gray wolves in the northern Rockies will also
cause irreparable harm to Plaintiff’s recreational and aesthetic interests.
10. Defendant Ken Salazar is the United States Secretary of the Interior.
In that capacity, Secretary Salazar has supervisory responsibility over the U.S. Fish
and Wildlife Service. Defendant Salazar is sued in his official capacity.
11. Defendant Rowan Gould is the Acting Director of the U.S. Fish and
Wildlife Service. Defendant Gould is sued in his official capacity.
12. Defendant United States Fish and Wildlife Service is a federal agency
within the Department of Interior. FWS is responsible for administering the ESA
with respect to terrestrial wildlife such as gray wolves.
LEGAL BACKGROUND
A. THE SEPARATION OF POWERS IN THE U.S. CONSTITUTION
13. Article III of the U.S. Constitution establishes that the judicial power
of the United States, encompassing cases and controversies, lies in the federal
courts and not in Congress. The separation between the judiciary and legislative
branches is part of the constitutional principle known as “separation of powers.”
14. Congress, which is established under Article I of the U.S.
Constitution, violates the separation of powers where it impermissibly directs
certain findings in pending litigation without changing the underlying law. U.S. v.
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Klein, 80 U.S. (13 Wall.) 128 (1871); Robertson v. Seattle Audubon Soc’y, 503
U.S. 429 (1992).
B. THE ENDANGERED SPECIES ACT
15. The Endangered Species Act was enacted, in part, to provide a
“means whereby the ecosystems upon which endangered species and threatened
species depend may be conserved” and “a program for the conservation of such
endangered species and threatened species.” 16 U.S.C. § 1531(b). Section 2(c) of
the Endangered Species Act establishes that it is “the policy of Congress that all
Federal departments and agencies shall seek to conserve endangered species and
threatened species and shall utilize their authorities in furtherance of the purposes
of this Act.” 16 U.S.C. § 1531(c)(1). The Act defines “conservation” to mean “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 pursuant
to this Act are no longer necessary.” 16 U.S.C. § 1532(3).
16. The ESA provides substantive protections to “species” listed as
“endangered” or “threatened” by FWS.
17. The ESA defines a “species” to mean “any distinct population
segment of any species of vertebrate fish or wildlife which interbreeds when
mature.” Id. § 1532(16). A “distinct population segment” is the smallest-possible
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taxonomic distinction provided by the ESA and allows FWS to provide differing
levels of protection to different populations of a species.
18. The ESA defines as “endangered” a species that is “in danger of
extinction throughout all or a significant portion of its range.” Id. § 1532(6).
19. The ESA defines as “threatened” a species “which is likely to become
an endangered species within the foreseeable future throughout all or a significant
portion of its range.” Id. § 1532(20).
20. When listing or delisting a species, the ESA requires FWS to consider
five categories of threats to a species. These criteria are:
(A) the present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) overutilization for commercial, recreational, scientific, or
educational purposes;
(C) disease or predation;
(D) the inadequacy of existing regulatory mechanisms; [and]
(E) other natural or manmade factors affecting its continued
existence.
16 U.S.C. § 1533(a)(1); 50 C.F.R. § 424.11(c). If any one of these factors causes
the species to be in danger of extinction or likely to become an endangered species
in the foreseeable future throughout all or a significant portion of its range, the
species must be listed, and cannot be delisted until none of these factors are
present.
21. Listing decisions must be made “solely on the basis of the best
scientific and commercial data available,” and without reference to possible
Case 9:11-cv-00071-DWM Document 1 Filed 05/05/11 Page 7 of 16
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economic or other impacts of such a determination. 16 U.S.C. § 1533(b)(1)(A); 50
C.F.R. § 424.11(b); 50 C.F.R. § 424.13.
22. “A species may be delisted only if [the best scientific and commercial
data available] substantiate that it is neither endangered nor threatened,” because it
is extinct, recovered, or the original data for classification was in error. 50 C.F.R.
§ 424.11.
23. A species reaches “recovery” when there is “improvement in the
status of listed species to the point at which listing is no longer appropriate under
the criteria set out in [16 U.S.C. § 1533(a)(1)].” 50 C.F.R. § 402.02.
24. The ESA provides a specific process for delisting a species, including
opportunities for public notice and comment and a review by FWS of the status of
the species. 50 C.F.R. Part 424.
FACTUAL BACKGROUND
A. REMOVAL OF ESA PROTECTIONS FOR THE GRAY WOLF
UNDER THE ENDANGERED SPECIES ACT
25. The gray wolf (Canis lupus) historically inhabited most of North
America, except for portions of the driest deserts and today’s southeastern United
States. Some studies have estimated that historically, there may have been as
many as two million wolves in the western U.S. and Mexico, including more than
350,000 gray wolves in the American West. But today, wolves occupy only about
five percent of their historic range in the U.S., in three areas – the northern Rocky
Case 9:11-cv-00071-DWM Document 1 Filed 05/05/11 Page 8 of 16
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Mountains, Great Lakes region, and southwestern U.S. – with a combined total
population of approximately 5,000 to 6,000 wolves.
26. This severe reduction in wolf numbers was caused by widespread
habitat destruction as well as federal policies, implemented over the course of
many decades, to exterminate wolves from the landscape. With the European
settlement of North America, “superstition and fears … led to widespread
persecution of wolves.” 68 Fed. Reg. 15,804, 15,805 (Apr. 1, 2004). According to
FWS, “wolves were hunted and killed with more passion and zeal than any other
animal in U.S. history.” U.S. Fish and Wildlife Service, Gray Wolf,
http://training.fws.gov/library/Pubs/graywolf.pdf (last checked May 4, 2011). This
hunting, together with an active eradication program sponsored and carried out by
FWS and its predecessor agency, resulted in the extirpation of wolves from more
than 95 percent of their range in the lower 48 states. See 68 Fed. Reg. at 15,805;
72 Fed. Reg. 6,106, 6,125 (Feb. 8, 2007). In Montana, Idaho, Wyoming, and
adjacent southwestern Canada, wolves were exterminated by the 1930s. See 74
Fed. Reg. at 15,123.
27. Although the federal government no longer explicitly pursued such
policies when Congress enacted the ESA in 1973, wolf populations remained small
and isolated and continued to be threatened by genetic inbreeding and poaching, as
well as by ongoing federal and state predator control policies.
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28. In 1974, FWS listed four subspecies of gray wolf as endangered,
including: the northern Rocky Mountain gray wolf (Canis lupus irremotus); the
eastern timber wolf (C. l. lycaon) in the northern Great Lakes region; the Mexican
wolf (C. l. baileyi) in Mexico and the southwestern United States; and the Texas
gray wolf (C. l. monstrabilis) of Texas and Mexico. 39 Fed. Reg. 1171 (Jan. 4,
1974). In 1978, FWS relisted the gray wolf as endangered at the species level (C.
lupus) throughout the conterminous 48 States and Mexico, except for Minnesota,
where the gray wolf was reclassified as “threatened.” 43 Fed. Reg. 9607 (Mar. 9,
1978).
29. FWS established a recovery goal for gray wolves in the northern
Rockies, in its 1987 northern Rocky Mountain gray wolf recovery plan, of 10
breeding pairs living in each of three separate areas for at least three consecutive
years.
30. In 1994, FWS designated unoccupied portions of Idaho, Montana, and
Wyoming as two nonessential experimental population areas for the gray wolf
under section 10(j) of the Act. 15 U.S.C. § 1540(j); 59 Fed. Reg. 60,252 (Nov. 22,
1994); 59 Fed. Reg. 60,266 (Nov. 22, 1994). One of these populations, the
Yellowstone Experimental Population Area, consists of all of Wyoming and
portions of eastern Idaho, southeastern Montana. The second of these populations
was designated in central Idaho. FWS reintroduced 66 gray wolves from Canada
Case 9:11-cv-00071-DWM Document 1 Filed 05/05/11 Page 10 of 16
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into these two areas in 1995, thereby implementing its plan to recover wolves in
the northern Rockies. 59 Fed. Reg. 60,252; 72 Fed. Reg. 36,942, 36,943 (July 6,
2007).
31. When FWS reintroduced the gray wolf into the northern Rockies, it
prepared an environmental impact statement in which it reaffirmed the 1987
recovery goals. At that time, FWS determined that northern Rockies wolves must
also form a metapopulation, with genetic exchange between subpopulations and
acknowledged that then-current scientific literature showed that long-term viability
for wolf populations would require an effective population size (Ne) of at least 500
wolves.
32. Since returning to their native landscape, wolves have reproduced
and established packs, and have restored a more natural balance to northern
Rockies ecosystems. Wolves benefit the health of elk and deer populations by
virtue of their selection of prey animals, as they primarily take the old, the very
young, the injured, and the diseased, leaving the healthiest animals to produce the
next generation. In Yellowstone National Park, the renewed presence of wolves
has altered the behavior of elk, which now tend to avoid browsing in areas where
they are most vulnerable to predation, and in turn have reduced destruction of
young aspen and willow shoots. The restoration of shrubs and trees in riparian
areas controls stream erosion, and supports native bird communities, beavers, and
Case 9:11-cv-00071-DWM Document 1 Filed 05/05/11 Page 11 of 16
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other wildlife. Wolves aggressively prey on coyotes within wolves’ home
territories. By reducing the number of coyotes in the area, the presence of wolves
has also benefited populations of small rodents, birds of prey (who feed on the
rodents), and pronghorn antelopes (who are often preyed upon by coyotes).
33. There are now three sub-populations of gray wolves in the northern
Rockies. At the end of 2008, FWS estimated that in total, the northern Rockies
wolf population numbered approximately 1,650. See 74 Fed. Reg. at 15,137.
34. The northern Rocky Mountains population, even were it not
fragmented into three subpopulations, is well below levels that scientists consider
to be viable. A 2007 study estimated a median minimum viable population
(“MVP”) size of 4,169 individual wolves, while another study estimated a mean
MVP of 7,316 wolves. Even in the contracted area where it now occurs in the
northern Rockies, the wolf population there continues to be threatened by a
relatively small population size.
35. FWS’s western gray wolf recovery coordinator, Ed Bangs, has said
about FWS’s updated recovery goal, “I, personally, think it is too low.” Virginia
Morell, Wolves at the Door of a More Dangerous World, Science, at 891 (Feb. 15,
2008).
36. Based on its recovery goal, FWS has attempted to reduce or remove
ESA protections for distinct population segments of the gray wolf in the northern
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Rockies. 68 Fed. Reg. 15,804 (Apr. 1, 2003); 73 Fed. Reg. at 10,517. These
attempts have been set aside by Article III courts. Defenders of Wildlife v. Sec’y,
U.S. Dep’t of Interior, 354 F.Supp.2d 1156 (D. Or. 2005); Defenders of Wildlife v.
Hall, 565 F.Supp.2d 1160 (D. Mont. 2008).
37. Most recently, this Court determined that the Delisting Rule was
unlawful under the ESA, because the ESA does not allow FWS to list only part of
a “species” as endangered, or to protect a listed distinct population segment only in
part, and because the ESA’s legislative history does not support FWS’s
interpretation of the phrase “significant portion of its range” but rather, supports
the historical view that FWS has always held, i.e., that the ESA does not allow a
distinct population segment to be subdivided. DOW v. Salazar, 729 F.Supp.2d at
1211.
38. After DOW v. Salazar was decided, on October 1, 2010, multiple
appeals were taken to the Ninth Circuit Court of Appeals. DOW et al. v. State of
Idaho et al., Civ. No. 10-35885; DOW, et al. v. Montana Farm Bureau Fed’n et al.,
Civ. No. 10-35886; DOW, et al. v. Ken Salazar, et al., Civ. No. 10-35894; DOW,
et al. v. Safari Club International, et al., Civ. No. 10-35897; DOW, et al. v. State of
Montana, et al., Civ. No. 10-35898; DOW, et al. v. Salazar, et al., Civ. No. 10-
35926. Those appeals have been consolidated and are still pending.
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39. On November 16, 2010, the U.S. District Court for the District of
Wyoming issued an order in consolidated cases setting aside FWS’s determination
that Wyoming’s management plan for the gray wolf was inadequate, and remanded
the determination to FWS. FWS initially appealed this decision, but has dismissed
its appeal.
B. THE RIDER
40. After DOW v. Salazar was decided, members of Congress began to
undertake various legislative efforts to delist the gray wolf in the northern Rockies
and other areas in the lower 48 states. These efforts resulted in the passage of the
Rider, Section 1713.
41. Senator John Tester of Montana attached Section 1713 to the
Department of Defense and Full-Year Continuing Appropriations Act of 2011, P.L.
112-10, which was passed by Congress on April 15, 2011. Section 1713 states as
follows:
SEC. 1713. Before the end of the 60-day period beginning on the date of
enactment of this Act [i.e., before June 14, 2011], the Secretary of the
Interior shall reissue the final rule published on April 2, 2009 (74 Fed. Reg.
15123 et seq.) without regard to any other provision of statute or regulation
that applies to issuance of such rule. Such reissuance (including this section)
shall not be subject to judicial review and shall not abrogate or otherwise
have any effect on the order and judgment issued by the United States
District Court for the District of Wyoming in Case Numbers 09–CV–118J
and 09–CV–138J on November 18, 2010.
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42. In response to Section 1713, FWS reissued the unlawful Delisting
Rule on May 5, 2011. 76 Fed. Reg. 25,590.
CAUSE OF ACTION
(Violation of the Separation of Powers of the U.S. Constitution)
43. Plaintiff hereby realleges and incorporates the preceding paragraphs.
44. Section 1713 was designed to and directed an outcome in the pending
appeals before the Ninth Circuit Court of Appeals in DOW v. Salazar. Section
1713 does not amend the ESA or otherwise provide new substantive law to apply.
Section 1713 therefore unconstitutionally infringes on the powers of the judicial
branch in violation of the separation of powers because it impermissibly directs a
result to pending litigation without changing underlying law. U.S. v. Klein, 80
U.S. (13 Wall.) 128 (1871); Robertson v. Seattle Audubon Soc’y, 503 U.S. 429
(1992).
45. Section 1713 provides that the Rider itself is not subject to judicial
review. However, this provision is also a violation of the separation of powers
because the U.S. Constitution provides that acts of Congress are reviewable by
Article III courts for constitutional questions.
46. Because the FWS’s reissuance of the Delisting Rule is not in
accordance with and contrary to the separation of powers in the U.S. Constitution,
it also violates the APA. 5 U.S.C. §§ 706(2)(A), 706(2)(B).
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PRAYER FOR RELIEF
THEREFORE, Plaintiff respectfully requests that this Court:
1. Declare that Section 1713 violates the separation of powers in the
U.S. Constitution;
3. Set aside FWS’s reissued Delisting Rule, as it is based on Section
1713 which is unconstitutional, and issue an injunction reinstating ESA protections
for gray wolves in the northern Rockies;
3. Award Plaintiff its reasonable fees, costs, and expenses, including
attorneys fees, associated with this litigation; and
4. Grant Plaintiff such further and additional relief as the Court may
deem just and proper.
Respectfully submitted this 5th day of May, 2011.
/s/ Christopher Karr
Christopher Karr
Karr Law Firm, PLLC
517 E. Spruce Street
Missoula, Montana 59802
608-213-4921
karrlawfirm@gmail.com
Attorney for Plaintiff