Case 9:09-cv-00077-DWM Document 210 Filed 04/09/11 Page 1 of 24
Case 9:09-cv-00077-DWM Document 210 Filed 04/09/11 Page 1 of 24
DEFENDERS OF WILDLIFE, )
NATURAL RESOURCES DEFENSE )
COUNCIL, SIERRA CLUB, HUMANE )
SOCIETY OF THE UNITED STATES, )
CENTER FOR BIOLOGICAL )
DIVERSITY, JACKSON HOLE )
CONSERVATION ALLIANCE, ) CV 09-77-M-DWM
FRIENDS OF THE CLEARWATER, ) CV 09-82-M-DWM
ALLIANCE FOR THE WILD ROCKIES, ) (consolidated)
OREGON WILD, CASCADIA )
WILDLANDS, WESTERN ) ORDER
WATERSHEDS PROJECT, WILDLANDS )
NETWORK, and HELLS CANYON )
PRESERVATION COUNCIL, )
)
Plaintiffs, )
)
v. )
)
KEN SALAZAR, Secretary of the Interior, )
ROWAN GOULD, Acting U.S. Fish and )
Wildlife Service Director, and UNITED )
STATES FISH AND WILDLIFE )
SERVICE, )
)
Defendants, )
)
v. )
)
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I. Introduction
The ordinary rule applied to any case on appeal is that the District Court that
rendered the order to be examined on appeal, has no authority to make any legal
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ruling in the case while the appeal is pending. The Federal Rules of Civil
Procedure recognize that in some circumstances it can be helpful to the parties and
to the court of appeals to know what the District Court might do if given the
chance to consider some aspect of the appealed case. Federal Rule of Civil
Procedure 62.1 allows such indicative rulings when authorized by the court of
The procedure that must be followed under Rule 62.1 first involves asking
the District Court to indicate what it would do with the question, or at least
consider whether there is a serious issue raised. The indicative ruling procedure
has at least four steps. First, the appealing parties must be motivated by some
concern or issue and specifically ask for an indicative ruling. Second, the District
Court is then obliged to indicate its view of the request. If the request is denied,
that ends the inquiry. If the District Court is inclined to grant the request for an
indicative ruling, the third step is to tell the parties and the Circuit Court of its
intent. Finally, it is up to the Circuit Court to decide whether it will send the case
back to the District Court and empower the lower court to rule. This case is now
at step two.
Even when the Rule 62.1 procedure is invoked it is not a carte blanche
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of policy. Rather the District Court is still constrained by the “rule of law.” No
matter how useful a course of conduct might be to achieve a certain end, no matter
how beneficial or noble the end, the limit of power granted to the District Court
must abide by the responsibilities that flow from past political decisions made by
The rule of law does not afford the District Court the power to decide a legal issue
but then at the behest of some of the litigants to reverse course and permit what the
Congress has forbidden because some of those interested have sensibly, or for
a preferable and favored principle when all the parties are in agreement.
Settlement gives control to the parties and it provides a rationale for achieving
parties, deplored by others, and protracts the dilemma for all who have been
On August 5, 2010, the Court ruled in this case that the U.S. Fish &
Wildlife Service’s (the “Service’s”) 2009 Final Rule violated the express terms of
the Endangered Species Act (the “ESA”). The challenged Final Rule was vacated,
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restoring ESA protections for the wolves in Idaho and Montana. That decision is
now before the Ninth Circuit on appeal. In that case the Federal Defendants and
agreement, however, is contingent upon the Court partially staying its invalidation
The Settling Parties seek an indicative ruling on whether this court would
stay operation of its Order setting aside the Final Rule as to the States of Idaho and
Montana only. The proposed stay is predicated on the idea that the Court can and
should enter the limited stay under Rule 60(b) of the Federal Rules of Civil
Procedure, because to do so would promote recovery of the gray wolf while at the
same time resolving this and other related wolf litigation. Many parties to the
appeal, and the related litigation, object to any stay because they are opposed to
settlement.
Because the Court lacks discretion to provide the relief sought, and because
a stay would not comply with the ESA for the duration of the stay, its entry would
come at the expense of the Non-Settling Intervenors and Plaintiffs, and the
proposed settlement agreement would not resolve the issues surrounding the
(“DPS”). Equity does not warrant granting the Rule 60(b) motion as requested. If
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all parties involved in the appeal and in the related litigation agreed with the
answer to this contentious legal problem would be easy. But it ill behooves any
court to force a party to take medicine it does not want, except by a determination
on the merits.
II. Background
On February 23, 2011, the Ninth Circuit granted the parties’ joint motion to
stay the appeal of the delisting Rule until March 24, 2011. Since then, Federal
Defendants and ten of the fourteen Plaintiffs in this case have reached a contingent
Resources Defense Council, Sierra Club, Center for Biological Diversity, Hells
Network (formerly the Wildlands Project). The four “Non-Settling Plaintiffs” are:
Humane Society of the United States, Friends of the Clearwater, Alliance for the
Wild Rockies, and Western Watersheds Project. The states of Idaho and Montana
as well as none of the other Defendant Intervenors are a party to the settlement.
The terms of the proposed settlement are set forth in the document (dkt
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#187-1). Notably, the agreement does not require Federal Defendants to dismiss
their appeal of the underlying judgment in this action. Nor does it require
dismissal of the appeals filed by the five sets of Defendant Intervenors in this case.
The agreement does not require Federal Defendants to withdraw the challenged §
10(j) Rule, or otherwise explain how the settlement would moot the Non-Settling
Plaintiffs’ § 10(j) action. It does not answer the question of the Non-Settling
The Settling Parties want to know, if this Court had jurisdiction over this
matter, would it “stay operation of its order vacating and setting aside the
[Service’s] 2009 delisting rule . . . in the States of Idaho and Montana only, until
the Service issues a new delisting rule governing the protected status of the [DPS]
under the [ESA].” Mot. (dkt #189-1). In the absence of all parties agreeing to this
idea its effect would be to go forward in violation of the ESA. The moving parties
argue the Court could enter such a stay under Rule 60(b) through its equitable
powers because (a) the Court has discretion to modify its remedy as sought, (b) the
settlement agreement will protect wolves by state control for the duration of the
stay and (c) the stay will promote the laudable goal settlement.
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An Order was entered on March 21, 2011 noting the Motion “appears to
raise a substantial issue but” that the Court had “not heard from all interested
parties.” Order 3 (dkt #193). An opportunity was given to any party wanting to
be heard to file a brief by March 22, 2011. Oral argument on the Motion took
Their principle argument insists that a legal stay would sacrifice the relief they
obtained, and it would do so against their will. As a matter of policy they take the
position that a stay would fail to promote the interests of finality or judicial
economy. The State of Montana urges the Court to make an indicative ruling in
“significant breakthrough” over the heated and protracted decision to delist the
region’s gray wolf population. Such a characterization may be accurate but does
not account for its impact on Intervenors or Plaintiffs who are unwilling to settle.
In support of its position Montana argues the wolf population will continue to
meet or exceed federal recovery criteria under its management. While the
proposition may be accurate, it has a utilitarian ring about it when it comes to the
interests of those who object to the settlement. The Safari Club International and
the National Rifle Association of America also advised the Court of their
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positions. They do not support the settlement agreement but say they will not
actively challenge it in this litigation. They also inform the Court that they will
decide whether to continue to pursue their appeal of the judgment in this case
On March 25, 2011, Federal Defendants filed a Notice informing the Court
that the appeals of the dispositive Order and Judgment in this matter have been
selected for inclusion in the Ninth Circuit’s mediation program and the appeals are
stayed until whichever occurs later: April 25, 2011 or the date of the Court’s
ruling on the Motion at hand. If everyone agrees to a settlement the matter will
end. If they cannot agree the case will continue on its legal odyssey.
judgment, it lacks the power to grant a Rule 60(b) motion without a remand from
the court of appeals. See Davis v. Yageo Corp., 481 F.3d 661, 685 (9th Cir.
2007). The Rule provides that "[i]f a timely motion is made for relief that the
court lacks authority to grant because of an appeal that has been docketed and is
pending, the court may: (1) defer considering the motion; (2) deny the motion; or
(3) state either that it would grant the motion if the court of appeals remands for
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that purpose or that the motion raises a substantial issue.” Fed. R. Civ. P. 62.1.
Even if the court states that the motion raises a substantial issue it is not bound to
grant the motion on remand. Advisory Committee’s Note on Fed. R. Civ. P. 62.1.
Upon “just terms, the court may relieve a party . . . from a final judgment,
that justifies relief.” Fed. R. Civ. P. 60(b)(5), (6). Rule 60(b) “does not
particularize the factors that justify relief; [instead] it provides courts with
1163 (9th Cir. 1996) (quoting Klapprott v. United States, 335 U.S. 601, 614-15
(1949)). A motion seeking such relief must be made “within a reasonable time.”
Fed. R. Civ. P. 60(c). “What constitutes ‘reasonable time’ depends upon the facts
of each case, taking into consideration the interest in finality, the reason for delay,
the practical ability of the litigant to learn earlier of the grounds relied upon, and
prejudice to other parties.”1 Ashford v. Steuart, 657 F.2d 1053, 1055 (9th Cir.
1
Non-Settling Plaintiffs argue the Rule 60(b) motion is untimely considering the prejudice
the motion causes them. This prejudice, however, would occur regardless of when the motion
was filed and as such will be deemed an equitable consideration and not a factor towards
timeliness.
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1981).
Rule 60(b) empowers a district court to vacate its own judgment “when the
equities so demand.” Am. Games, Inc. v. Trade Prods., Inc., 142 F.3d 1164, 1168
(9th Cir. 1998); see also U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S.
18, 29 (1994) (noting an appellate court should vacate a lower court’s judgment
only under “exceptional circumstances” but a district court may vacate its own
condition of settlement, the district court may refuse to vacate the judgment.”
Bates v. Union Oil Co. of Cal., 944 F.2d 647, 650 (9th Cir. 1991). In making its
ruling the district court should apply an equitable balancing test prior to vacating
renders his appeal moot by [settlement] . . . the district court can decide whether to
1370-71 (9th Cir. 1995) (quoting Ringsby Truck Lines, Inc. v. W. Conference of
Teamsters, 686 F.2d 720, 722 (9th Cir. 1982)). The purpose of this balancing test
allows a district court to consider the consequences of the requested vacatur. Id.;
see also Allard v. DeLorean, 884 F.2d 464, 467 (9th Cir. 1989) (“[T]he district
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court should balance the competing interests of the parties in order to determine
whether the judgment below should be vacated.”).2 Notably, the appeal is not
mooted in the absence of all interested parties joining in the settlement and
IV. Analysis
The Settling Parties maintain that the equities justify the Court staying its
remedy Order for wolves in Idaho and Montana. In doing so, they frame this
remedy the agency’s “erroneous interpretation of the ESA” while promoting the
Significant Portion of Its Range’” (the “M-Opinion”), and at the same time
ensuring the recovery and long-term sustainability of the wolf population. Br. 18
Settling Parties acknowledge, at least for the sake of the request for an
indicative ruling, that the Service’s delisting Rule was based on “an erroneous
2
The Settling Parties do not ask the Court to vacate its judgment but instead to partially
stay the judgment. The authority to vacate a judgment by implication includes the authority to
take the less drastic modification of a partial stay of the judgment.
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interpretation” of the statute. Br. 18 (dkt #189-2). This error was not a technical
endangered species. They now ask the Court if the wolf in Montana and Idaho–an
provisions. This proposition presents a legal conundrum that goes directly to the
ideas behind the rule of law. The policy about listing is a political decision made
before reaching the equity analysis under Rule 60(b), it is first necessary to
determine whether the Court even has the power to issue the requested stay.
The Administrative Procedure Act (the “APA”) sets forth the standards by
which a court reviews an agency action. Under the APA, “[t]he reviewing court
shall . . . hold unlawful and set aside agency action . . . found to be,” inter alia,
the rule previously in force.” Paulsen v. Daniels, 413 F.3d 999, 1008 (9th Cir.
2005). Here, that means because the species in Idaho and Montana were
unlawfully delisted, that Agency Rule is invalid and the wolves must be placed
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back under the protections of the ESA pursuant to the Rule previously in force.
The Settling Parties argue that such an outcome is not mandatary, but
instead the Court can exercise its discretion and stay its earlier remedy as to
wolves in Idaho and Montana. However, such a determination places the animals
in a status which would authorize a “taking” contrary to the ESA. The Court does
In the past the Ninth Circuit has held there are circumstances where vacatur
Dep't of Commerce , 358 F.3d 1181, 1185 (9th Cir. 2004) ("Although not without
In Idaho Farm Bureau Fed’n v. Babbitt, the Circuit found the listing of the
required by law” when the Service failed to offer a government report central to
the agency’s decision for public comment. 58 F.3d 1392, 1404 (9th Cir. 1995).
The court then noted “when equity demands” the invalid rule can be left in place
“while the agency follows the necessary procedures.” Id. at 405. Due to concern
leaving the listing rule in place while the [Service] remedie[d] its procedural error
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and considered anew whether to list” the species. Id.; see also W. Oil & Gas
Ass’n v. EPA, 633 F.2d 803, 813 (9th Cir. 1980) (leaving in effect challenged
of the Clean Air Act). The principle inferred is that if the invalid rule provides
protection within the meaning of the ESA equity can authorize keeping it in place.
Necessarily then, if the rule places the species at risk, equity would not prevail, the
law would.
Thus, despite the APA requirement that an invalid rule be vacated, see 5
U.S.C. § 706, Idaho Farm Bureau provides a reviewing court discretion to leave
ESA protections in place pending a remand.3 Even when the rule suffers from
than strip them away–while the agency revisits the issue makes sense given
“Congress has spoken in the plainest of words, making it abundantly clear that the
balance has been struck in favor of affording endangered species the highest of
3
This Court has entered a similar equitable remedy. In Alliance for the Wild Rockies v.
Lyder, the Court found the Service’s determination of lynx critical habitat to be arbitrary and
capricious. The Court then noted to invalidate the rule would reinstate the prior one that
designated much less critical habitat. The Court thus left the arbitrary rule, with its greater
protections, in place while the agency revisited the issue. Order 44-45, CV 09-73-M-DWM (dkt
#59).
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caution.’ ” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 194 (1978).
determination: that the wolves of Idaho and Montana are legally endangered but it
would be more equitable to not protect them as such so that they could be taken
under the states’ management plans. In essence, the Settling Parties are asking the
Court to shape a remedy “that accords with some modicum of common sense and
the public weal,” and ignore Congress’ instruction on how an endangered species
must be protected. Id. This course seems to run roughshod over Congress’
The Supreme Court has assessed the providence of the courts to evade what
“The law, Roper, the law. I know what's legal, not what's right. And I'll
stick to what's legal. . . . I'm not God. The currents and eddies of right and
wrong, which you find such plain-sailing, I can't navigate, I'm no voyager.
But in the thickets of the law, oh there I'm a forester. . . . What would you
do? Cut a great road through the law to get after the Devil? . . . And when
the last law was down, and the Devil turned round on you–where would you
hide, Roper, the laws all being flat? . . . This country's planted thick with
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laws from coast to coast–Man's laws, not God's–and if you cut them down . .
. d'you really think you could stand upright in the winds that would blow
then? . . . Yes, I'd give the Devil benefit of law, for my own safety's sake.”
R. Bolt, A Man for All Seasons, Act I, p. 147 (Three Plays, Heinemann ed.
1967).
endangered species. The substantive and procedural provisions of the ESA are the
substantial compliance with the [ESA]’s procedures can [the Court] effectuate the
intent of the legislature.” Sierra Club v. Marsh, 816 F.2d 1376, 1384 (9th Cir.
1987). To craft a remedy that would expose the endangered species in Idaho and
Montana to taking while the agency revisits the DPS’s listing status would permit
a substantial violation of the ESA’s substantive provision that “it is unlawful for
This Court has no power to equitably lift the ESA’s prohibition on takes of
provision. As discussed below, even if that was not the case, the equities do not
There is no question that the Settling Parties are seeking in good faith to lay
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the wolf cases to rest. They maintain that the settlement, a product of months of
Idaho and Montana. They argue that due to the monitoring, the status reviews and
the independent assessment called for in the proposed settlement agreement, the
wolves will not suffer “great harm” if the Court stays its judgment and allows
wolves in Idaho and Montana to be managed by the states. The state management
plans are identical to the ones the Service relied upon in issuing its delisting Rule.
each state to manage for only 150 wolves. The complaint also argued the current
number of wolves is too low for delisting and to eliminate ESA protections will
cause irreparable harm to the species. Compl. ¶¶ 22, 43, 61 (dkt #1). These
claims were not reviewed because the Rule’s unlawful delisting of part of a DPS
subsumed those issues. The requested stay would short circuit the legal finding
all the other challenges raised by the Plaintiffs that have not yet been decided.
settlement agreement as ensuring the endangered species’ viability for the duration
of the stay. The agreement requires the Service to monitor the status of the DPS
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pursuant to its requirement under § 4(g) of the ESA and within four years to
the ESA. The independent assessment, which will not commence for at least three
years, might assist in assessing the soundness of a some future delisting decision
but it does not translate into tangible protections for the species in the interim.
Considering the interests of the Non-Settling Parties, the agreement does not
provide a firm deadline for how long the stay would remain in place;4 nor does it
set a floor for the species viability numbers or provide a threshold at which point
the wolves would return to federal management. Because the length of the stay is
indefinite, because the management requirements are indefinite, and because there
are limited added protections, the settlement agreement does not safeguard the
4
The closest the agreement comes to providing a deadline is the allowance of the Settling
Parties to petition the Service to list the DPS three years after the stay was entered. Settlement
Agreement ¶ 11 (dkt #187-1).
5
Federal Defendants also highlight that the overall population number is healthy and has
only declined slightly over the past year. The Non-settling Plaintiffs argue this consideration
provides no assurance that the population will continue to be managed to maintain this healthy
number.
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The parties that have reached a proposed settlement also note the agreement
calls for the withdrawal of the M-Opinion. They justifiably believe the agreement
will diminish the public controversy surrounding the issue of wolf management in
the northen Rocky Mountain region. However, the withdrawal of the M-Opinion
is of little consequence because its legal conclusions are invalid, and its
withdrawal offers no added protections for the species. Moreover, while the
does not commit them to replace it by a time certain. Because the agreement does
not account for the interests of all of the Plaintiffs or Intervenors it will only
minimally impact any controversy about wolf management. To the extent that it
does so–it accomplishes its end through the means of species “taking” so any
gains in public sentiment come in spite of the law and at the expense of the Non-
Settling Parties. When many of the parties do not want settlement it would be
Finally, the argument is made that the Court can promote the laudable goal
accord with Ninth Circuit policy that “favors and encourages compromise
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settlements.” Ahern v. Cent. Pac. Freight lines, 846 F.2d 47, 48 (9th Cir. 1988).
interest in settling and quieting litigation.” Id. (quoting United States v. McInnes,
556 F.2d 436, 441 (9th Cir. 1977)). “It is well recognized that settlement
agreements conserve judicial time and limit expensive litigation.” Id. (quoting
Speed Shore Corp. v. Denda, 605 F.2d 469, 473 (9th Cir. 1979)).
The policy of promoting settlement does not apply when it is at the expense
of the Non-Settling Litigants’ legal positions in this case. Given the legal posture
of the case, the onus is on the Federal Defendants and Settling Plaintiffs to
convince all of the Plaintiffs and Intervenors to settle the dispute. If they cannot
convince all parties that settlement is the best policy, then they cannot settle with
a stay would moot the appeal of this case. Despite Federal Defendants
their appeal, neither have any of the Defendant Intervenors who also filed a notice
of appeal. To the extent the appeal is dismissed, the legal issue of whether the
ESA allows for a DPS to be protected in only part of its range remains, and will
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likely be raised in a future case.6 Even if the current appeal was dismissed, more
litigation would be likely, such as challenges to any take based on the ESA’s
net result is that a partial settlement is likely to displace rather than “limit”
litigation.
resolve the separate wolf litigation pending before the Court, CV 08-14-M-DWM,
“challenging the Service’s promulgation of a § 10(j) rule for the [northern Rocky
agreement effectively negated this policy position. The ten Settling Plaintiffs
agree to stipulate to the dismissal with prejudice of their 10(j) claims. Settlement
Agreement ¶ 9 (dkt #187-1). Such a dismissal, however, has no effect on the four
Non-Settling Plaintiffs’ claims or any of the Intervenors’ claims in the case. Nor
is there any reason to believe that there would no longer be a case or controversy if
the settlement agreement was approved and executed. Wyoming would continue
6
Two Intervenors, Safari Club International and National Rifle Association of America,
have indicated their belief that the settlement agreement does not invalidate or moot the appeal.
They also reiterate their support for the withdrawn M-Opinion, suggesting the issue addressed in
that opinion will be raised one way or another in a future challenge to a delisting decision.
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V. Conclusion
The Court ruled in this case–and for the sake of this Motion the parties do
not dispute–that the Final Rule unlawfully delisted wolves in Idaho and Montana.
This legal mistake was remedied by invalidating the Rule, which had the effect of
putting those wolves back under the protection of the ESA. Congress has clearly
determined that animals on the ESA must be protected as such. Because the Court
cannot exercise its discretion to allow what Congress forbids, there is no legal
authority to grant a Rule 60(b) motion that would put part of an endangered
species under state management, exposing the animals to a take. Even if that was
not the case, in the absence of an agreement by all parties, a stay of the vacatur of
the Final Rule as to Idaho and Montana in combination with the settlement
agreement would not comport with the law’s mandate and it would prejudice Non-
Settling Parties’ legal interests in the case. Nor would a stay be likely to
encourage a global settlement in light of the stated positions of the litigants. The
equities are not persuasive enough to compel the relief the parties seek from the
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Motion for an Indicative Ruling on a Joint Motion to Partially Stay the Court’s
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