United States District Court, D. Idaho
CENTER FOR BIOLOGICAL DIVERSITY, WESTERN WATERSHEDS PROJECT, FRIENDS OF THE CLEARWATER, and WILDEARTH GUARDIANS, Plaintiffs,
C.L. “BUTCH” OTTER, Governor of Idaho, in his official capacity; VIRGIL MOORE, Director of the Idaho Department of Fish and Game, in his official capacity; BRAD CORKILL, FRED TREVEY, BOB BAROWSKY, MARK DOERR, RANDY BUDGE, KENNY ANDERSON, and WILL NAILLON, members of the Idaho Fish and Game Commission, in their official capacities, Defendants.
MEMORANDUM DECISION AND ORDER
Lynn Winmill Chief U.S. District Court Judge.
Court has before it a second motion to reconsider based on
new evidence. The motion is fully briefed and at issue. For
the reasons expressed below, the Court will grant the motion
to reconsider, and reverse its rulings on the cross-motions
for summary judgment.
plaintiffs - four environmental groups - sued officials of
the State of Idaho, alleging that the State's trapping
regulations fail to sufficiently protect the Canada Lynx, a
species that is listed as threatened under the Endangered
Species Act (ESA). Plaintiffs point out that trappers,
licensed by the State, have captured four lynx in traps meant
for other species. They urge the Court to impose specific
regulatory changes on trapping in lynx habitat that would
reduce the chance that lynx would be caught in traps intended
to lure other species.
side filed a motion for summary judgment. Plaintiffs sought
to impose regulatory changes on trapping throughout the
State, while the State argued that no changes were required.
To resolve these motions, the Court reviewed the status of
the lynx in each of the seven Regions defined by the Idaho
Department of Fish and Game to determine if it was likely
that lynx would be inadvertently trapped in those Regions.
of those Regions, the Court concluded that it was not likely
that lynx would be inadvertently trapped in the future and
denied plaintiffs' request for injunctive and declaratory
relief. But in two of the Regions - the northern-most Regions
- the Court did find it likely that lynx would be
inadvertently trapped, and directed the parties to submit a
proposed remedy to address this conclusion.
State responded by filing a motion to reconsider supported by
a new Declaration of a key witness, Bridget Fahey, the
Division Chief for Conservation and Classification for the
Fish and Wildlife Service (FWS). Fahey had filed a
Declaration in the first round of summary judgment motions
stating that an FWS document known by its acronym as the
“CITES ITS” allowed licensed trappers targeting
bobcats to take a certain number of lynx in their traps
without violating the ESA. It was not clear, however, whether
Fahey was speaking officially for the FWS. Thus, the Court
did not accord to her the deference that might otherwise be
due to an agency official interpreting agency-issued
ambiguity is clarified in Fahey's new Declaration: She
describes in detail the official authorization she received
from the FWS to testify in this case. See Fahey
Declaration (Dkt. No. 105-2). It is now clear that
Fahey's testimony is the official position of the FWS.
responded by complaining that they had not been able to take
discovery regarding Fahey's opinions. The Court granted
plaintiffs an opportunity to take discovery, and denied the
State's motion to reconsider without prejudice to the
rights of the State to refile the motion upon completion of
parties have now completed that discovery and the State
refiled its motion for reconsideration. To resolve this
motion, the Court will not repeat its extensive discussion
contained in two prior decisions but will incorporate them by
reference. See Memorandum Decisions (Dkt. Nos. 103 &
Fahey is the Division Chief for Conservation and
Classification in the Headquarters Office of the Fish and
Wildlife Service (FWS). In her new submission, she testifies
that her interpretation of the CITES ITS was authorized by
the Department of Interior and made “in her official
capacity pursuant to 43 CFR § 2.280 et seq.”
See Fahey Declaration (Dkt. No. 120-2) at ¶ 4. This
establishes Fahey's authority to speak on behalf of the
FWS. The agency interprets the CITES ITS to exempt from the
ESA the “take of Canada lynx that are incidentally
taken during state-licensed trapping targeting bobcats in
Idaho.” Id. at ¶ 7. This exemption
includes lynx that are captured and released unharmed.
See Fahey Deposition (Dkt. No. 126-3) at pp. 78-79.
While there are ...