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Center for Biological Diversity v. Otter

United States District Court, D. Idaho

January 24, 2018

CENTER FOR BIOLOGICAL DIVERSITY, WESTERN WATERSHEDS PROJECT, FRIENDS OF THE CLEARWATER, and WILDEARTH GUARDIANS, Plaintiffs,
v.
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

          B. Lynn Winmill Chief U.S. District Court Judge.

         INTRODUCTION

         The 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.

         ANALYSIS

         The 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.

         Each 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.

         In five 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.

         The 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 materials.

         That 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.

         Plaintiffs 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 that discovery.

         The 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 & 116).

         ANALYSIS

         Bridget Fahey Testimony

         Bridget 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 ...


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