On November 4, 2018, the U.S. District Court for the Eastern District of North Carolina granted summary judgment in favor of conservation organizations Red Wolf Coalition, Defenders of Wildlife, and Animal Welfare Institute in a case challenging the U.S. Fish and Wildlife Service’s (FWS) administration of the recovery program for endangered red wolves (Canis rufus).
FWS began reintroducing red wolves in North Carolina in 1987. Red wolves were designated as a non-essential experimental population under section 10(j) of the Endangered Species Act (ESA). As such, FWS may only reintroduce red wolves into the Red Wolf Recovery Area, which encompasses 1.7 million acres of federal, state, and private lands. FWS has promulgated regulations (the red wolf rule) prohibiting the take of red wolves in the recovery area unless in defense of a person’s life; the animal is in the act of killing livestock or pets; or the take has been authorized by FWS project personnel after efforts by project personnel to capture such animals have been abandoned.
The plaintiffs alleged that FWS violated ESA section 9 by authorizing take of red wolves by private landowners without satisfying the requirements of the red wolf rule; that FWS violated ESA section 4 by administering the red wolf rule in a manner that failed to provide for the conservation of red wolves and by failing to conduct the mandatory five-year status review of the species; and that FWS violated ESA section 7 by failing to administer the red wolf recovery program in furtherance of the conservation purposes of the ESA and by failing to ensure that their administration of the program is not likely to jeopardize the red wolf’s continued existence. The lawsuit also alleged that FWS’ administration of the program violated the National Environmental Policy Act (NEPA).
The court held that the claim regarding FWS’ failure to conduct a mandatory five-year review was prudentially moot, because FWS completed a five-year review in early 2018. But the court granted summary judgment for the plaintiffs on all of the remaining claims. It enjoined FWS from taking red wolves without first demonstrating that such red wolves are a threat to human safety or the safety of livestock or pets, and declared that FWS’ administration of the program violated the ESA and NEPA.
The court emphasized that FWS is required to comply with its conservation mandate despite the substantial challenges presented by interactions between reintroduced red wolves and humans.
Specifically, the court found that the red wolf rule requires FWS to actually abandon efforts to capture specific red wolves before issuing a take authorization. The take authorizations challenged in the lawsuit, which were issued without confirming the presence of specific red wolves on the subject property and because the landowners had failed to give FWS trapping access, failed to satisfy these requirements. The court explained:
Abandonment of USFWS efforts based on a landowner’s refusal to grant USFWS access to their property cannot serve as a proper basis for issuing a lethal take authorization under [the red wolf rule], as doing so would impermissibly tip the scales in favor of public demand and away from USFWS’s congressionally mandated goal to recover and rehabilitate the red wolf in the wild.
The court additionally noted that FWS had apparently discontinued successful management strategies (e.g., wolf introductions, strict limits on take authorizations) in response to mounting public pressure against red wolf recovery efforts. These changes coincided with a drastic decrease in the red wolf population, and therefore violated ESA sections 4 and 7. The court rejected FWS’ argument that these changes were within its discretion:
Allowing the red wolf population to decline, while having access to methodologies which were previously successful in increasing or maintaining the wild population of the species, is an interpretation of the red wolf rule that is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.
Finally, the court held that FWS was required to comply with NEPA because its decision to cease wolf introductions while increasing the likelihood of authorized lethal takes by landowners may adversely affect red wolves.
Crescent Cheng is a member of Nossaman’s Environment & Land Use Group. She advises clients on a variety of land use and environmental matters, including those dealing with the California Environmental Quality Act, Endangered ...
Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.
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