As backdrop, it is important to understand that the National Audubon Society plaintiffs did not challenge the appropriateness of the FWS utilizing ESA section 10(j) for the translocation of wolves to either Yellowstone or Idaho. Instead, National Audubon Society plaintiffs challenged only FWS's proposal that the natural wolves recolonizing the wildlands of Idaho be stripped of their legal and habitat protections afforded them as endangered species. FWS had proposed that all wolves in the ESA section 10(j) experimental population area be treated as a delisted species, with vastly decreased habitat and legal protections.
In contrast to challenging the impacts of the "reintroduction" program on naturally occurring wolves, the Farm Bureau Federations challenged the legality of translocating Canadian wolves to Yellowstone and Idaho. In other words, the Farm Bureau challenged FWS's bringing additional wolves to Yellowstone and Idaho, while we challenged the de facto delisting of naturally occurring wolves in Idaho.
Another important distinction between the two cases was that the Farm Bureau Federations challenged the legality of the FWS wolf program at its inception--they argued that it was illegal to commence a wolf experimental population in Wyoming or Idaho. In contrast, our challenge focused not on whether the wolf experimental population designation in Idaho was legitimate or not at its inception, but what would happen to the legal status of Idaho's naturally occurring wolves as the program was implemented. Put another way, the Farm Bureau Federations' case involved whether Fish and Wildlife Service could put Canadian wolves on the ground in Yellowstone and Idaho, and the National Audubon Society case involved what happened to naturally occurring wolves in Idaho after Fish and Wildlife Service put experimental wolves on the ground in Idaho.
These important distinctions between the Farm Bureau case and the National Audubon Society case were recognized by Judge Downes. Judge Downes described the Farm Bureaus' key legal claims as follows: 1) "Defendants failed to introduce the experimental population outside the current range of the species in violation of section 10(j)"; and 2) "Defendants have introduced an experimental population which is not 'wholly separate geographically' from nonexperimental wolf populations in violation of section 10(j)(2) of the ESA." Opinion at 6-7.
Judge Downes described the National Audubon Society legal claims as follows: 1) "Defendants adoption of the central Idaho reintroduction plan and rules violates the ESA by withdrawing full ESA legal protection to wolves that have, and will migrate naturally into the central Idaho experimental population area"; and 2) "Defendants central Idaho experimental population plan and rules treat the offspring of all wolves within the experimental area as members of the nonessential experimental population, regardless of whether they are the offspring of artificially introduced and naturally colonizing wolves, or of naturally occurring wolves alone, in violation of the ESA, 16 U.S.C. § 1539(j)(1)." Opinion at 12.
Almost the entire discussion of the ESA issues appears in the last 12 pages of the opinion, pages 38-49. After quoting the statute, Judge Downes addresses the argument raised by the Farm Bureaus and the Urbigkits (plaintiffs in a third lawsuit), that "Defendants have violated § 10(j)(2)(A) by introducing a population of an endangered species within that species' current range," opinion at 38, and the Farm Bureaus and Urbigkits argument that the experimental population zones are "within the current range of the naturally occurring Montana wolf populations." Id. In response to these claims, Judge Downes first described FWS's response that there are no known wolf "populations" in either reintroduction area and that the "wholly separate geographic" requirement applies only to populations and not individual animals. Id. at 39. After first concluding that FWS's population definition is entitled to deference, Judge Downes then turns to the critical issues for resolution of these arguments.
The heart of the analysis for ordering the removal of wolves transplanted by FWS lies in but a few pages of Judge Downes' opinion, pages 42-48. First, Judge Downes held that "Congress, in enacting § 10(j), did not intend to lessen the protections afforded to naturally occurring, or non-introduced, individual members of the same species." Opinion at 43. Judge Downes observed that "Congress limited the definition of experimental population to such times as when the experimental populations are wholly separate geographically from nonexperimental populations of the same species," id., and then concluded that "[i]n the event that an experimental population overlaps, in whole or in part, with natural populations of the same species, the introduced specimens can no longer be treated as an 'experimental population.'" Id. at 44.
Based on this reasoning, Judge Downes found that geographic overlap exists between the transplanted Canadian wolves and naturally occurring wolves in Yellowstone and Idaho, and that the FWS illegally declared the translocated wolves as an experimental population. Id. at 44-47. In doing so, Judge Downes took a giant leap from the exceedingly limited evidence of recent natural wolf presence in the Yellowstone reintroduction area, and read that episodic wolf presence in a few areas to extend to the entire reintroduction zone. In addition, Judge Downes appears to have erred in combining the analysis of when FWS can initially invoke the experimental population rule (which does not involve the "wholly separate geographically" requirement), with the analysis of when a population must lose its status as experimental (which does involve the "wholly separate geographically" requirement).
Judge Downes next examined the Farm Bureau argument that the Yellowstone and Idaho experimental population areas "are not outside the current range of the gray wolf." Opinion at 47. Judge Downes rejected FWS's argument that the ESA's language requiring that experimental reintroduction programs occur outside the "current range of such species" could be interpreted as outside the "current territory of naturally occurring packs of such species." Id. at 47-48.
Finally, Judge Downes addressed the legal claims raised by the National Audubon Society plaintiffs and found that naturally occurring wolves and their offspring could not fit within the ESA's definition of an "experimental population" as wolves authorized for release by the Secretary and "offspring arising solely therefrom." Opinion at 48-49.
Then, in the most startling part of the opinion, Judge Downes concluded that the FWS's final rules for establishing an experimental population of gray wolves in Yellowstone and Idaho are "unlawful and set aside." Opinion at 50. "[B]y virtue of the plan being set aside," Judge Downes ruled, "Defendants must remove reintroduced non-native wolves and their offspring" from the Yellowstone and Idaho experimental population areas. This breath-taking result was reached without any analysis of why this result should obtain, and over the objection of the National Audubon Society plaintiffs and the FWS.
While the appeals will result in the 10th Circuit Court of Appeals taking a second crack at interpreting ESA § 10(j), the basic thrust of Judge Downes' opinion flows ineluctably from the ESA. A guiding principal of the experimental population provision is Congress' clear desire to retain full legal protection for naturally occurring threatened and endangered species. If any trading away of habitat and legal protections is to occur, Congress required that it not be at the expense of naturally occurring threatened and endangered species already on the ground. With other species such as sea otters, California condors, lynx, and grizzly bears, this ruling should make Fish and Wildlife Service think twice about taking actions that diminish protections for naturally occurring threatened and endangered species.