In a preliminary injunction issued Friday, Judge Molloy of the District Montana, in Defenders of Wildlife v. Hall (D. Mont. Doc. No. CV-08-56) ordered the wolf DPS put back on the ESA threatened list, pending resolution of the plaintiffs' NEPA and ESA claims. (See the NYT treatment here). The court's decision hinged upon its view that the Service had failed adequately to explain what appeared to be a reversal in wolf delisting protocols.
In my view, Plaintiffs are likely to succeed on the majority of the claims relied upon in their request for a preliminary injunction. In particular, (1) the Fish & Wildlife Service acted arbitrarily in delisting the wolf despite a lack of evidence of genetic exchange between subpopulations; and (2) it acted arbitrarily and capriciously when it approved Wyoming’s 2007 plan despite the State’s failure to commit to managing for 15 breeding pairs and the plan’s malleable trophy game area. In both instances, the Fish & Wildlife Service altered its earlier position without providing a reasoned decision for the change based on identified new information.
Perhaps the most interesting part of the decision is the court's treatment of the Service's position that, in order to delist the DPS, the Service need not establish that all the criteria set forth in the wolf's 1994 Recovery Plan have been met. The court agreed that the Service can delist notwithstanding the Recovery Plan's recommendations, but if the delisting is inconsistent with the triggering criteria found within the Plan, then the Service must articulate reasons as to why the change in criteria is proper.
Here, the court found no such reasons, because "the Service provide[d] no new evidence or research that did not exist when the recovery criteria were established." But this leads one to ask perhaps the obvious question, What if the Recovery Plan was wrong (at least pro tanto) when originally published? In other words, why must the Service provide new evidence justifying a change in position, if it can show that the old evidence didn't justify the old position when taken (at least to the exclusion of every other position)?
The court seemed to adopt the position that, if at Time X the agency has before it sufficient evidence to justify Policy Alpha or Policy Gamma, and selects Policy Alpha, the agency is thereby precluded from switching to Policy Gamma at Time X + 1.
Although the Service now says genetic exchange is unnecessary, it provides no persuasive reasons for this change of course that were not known in 1994, when the new criteria were established, or in 2001 and 2002, when the criteria were reaffirmed.
The court builds its argument on the fact that the reasons now proffered to justify delisting (whether or not persuasive) are the same that were available to the Service at earlier points in time. The court's reasoning therefore assigns an irrevocability of sorts to agency decisionmaking which, whether consistent with the APA or not, is certainly indifferent to the realities of the political process and changes in administration.