June 5, 2008

D.C. Circuit vacates district court judgment that struck down flexible approach to endangered species management

By D.C. Circuit vacates district court judgment that struck down flexible approach to endangered species management

Those favoring a balanced approach towards the Endangered Species Act scored a small, albeit important, victory on Tuesday when the United States Court of Appeals for the District of Columbia Circuit vacated a district court opinion that had held that section 10 of the ESA does not authorize the U.S. Fish and Wildlife Service to issue a permit for a lethal depredation control program for an endangered species.  The decision is available here .

The litigation in Humane Society v. Kempthorne arose after FWS authorized the Wisconsin Department of Natural Resources to euthanize up 43 gray wolves.  Although at the time of the authorization (2006) the gray wolf was an endangered species, FWS had determined that recovery of the species would be impeded if the problem of wolf depredation of livestock and domestic animals continued.  In FWS's view, this depradation further threatened the gray wolf's recovery as a species because "[i]f the State or Federal government does not act, livestock owners likely will act and their actions could lead to the indiscriminate killing of wolves."

For that reason, FWS used its authority under section 10(a) of the ESA to permit the otherwise prohibited taking of an endangered species because the permit would "enhance the propagation or survival of the affected species."  The FWS permit made it clear that the lethal taking of a wolf was not to occur randomly, ensuring that " [l]ethal wolf control is preceded by verification that wolves were involved in the depredation," "depredation occurred on lawfully present domestic animals, including livestock," and "depradation is likely to continue in the immediate future if the depredating wolf or wolves are not removed."

The Humane Society sued, claiming that prevention of indiscriminate killing of wolves was not a sufficient reason for the lethal take permit.  The U.S. District Court for the District of Columbia agreed and enjoined the depredation control program.  The district court decision is available here.  FWS and the Safari Club (as intervenors) appealed.

In the meantime, the gray wolf population located in the Western Great Lakes region (which includes Wisconsin) was removed from the endangered species list.  This meant that Wisconsin did not need a federal permit to undertake a lethal depradation program and the appeal on the legality of such a permit was thus moot.

As the D.C. Circuit noted, "[w]hen a civil case becomes moot pending appellate adjudication, '[t]he established practice . . . in the federal system . . . is to reverse or vacate the judgment below and remand with a direction to dismiss.'" Arizonans for Official English v. Arizona, 520 U.S. 43, 71 (1997) (additional citation omitted).  The Humane Society argued that vacactur was not warranted in this case, but the court did not accept the Humane Society's arguments and vacated the decision of the district court.

The important result for property rights advocates and those arguing for a more balanced approach to ESA issues is that environmental groups will not be able to cite to the persuasive D.C. district court for the claim that sec. 10 of the ESA does not authorize FWS to issue a permit for a lethal depredation control program for an endangered species.  The D.C. circuit court judgment tosses out, an thus prevents environmental groups from citing to, a judicial decision which included the following views:

The Court agrees with Plaintiffs' [(the Humane Society and other parties)] assessment that "The ESA is congressional recognition that the value of species trumps the social tolerance that a person or group of people may have for a particular species." . . . The legislative history of the ESA clearly demonstrates that Congress did not intend to authorize a lethal depridation control program of an endangered species. . . .

The language "propogation or survival of the affected species" is, on its face, antiethical to the killing of 43 members of an endangered species barring some direct and immediate danger imposed by the individual animals killed to otehr members of the species. . . .

Congressional intent behind the adoption of the ESA and iterated throughout the language of the Act itself makes crystal clear that the "public interest" lies in the protection of the endangered gray wolf-not in the lethal taking of "problem" gray wolves in the hopes of created a selected-for gray wolf population that never interferes with livestock or hunters' kills.  Simply put, the recovery of the gray wolf is not supported by killing 43 gray wolves.

The district court submitted such assertions in invalidating a program meant to protect landowners and their families and to in addition head off the indiscriminate killing of wolves.  The inability to cite and/or quote the above analysis, thanks to the D.C. Circuit's grant of vacatur, will better able the FWS and states to engage in a flexible, long-run approach to endangered species management and will make the fight against ESA abuse a little easier to bear.

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