Case 1:12-cv ABJ Document 69 Filed 09/24/14 Page 1 of 5 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

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1 Case 1:12-cv ABJ Document 69 Filed 09/24/14 Page 1 of 5 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA DEFENDERS OF WILDLIFE, et al., Plaintiffs, v. Civil Action No (ABJ S.M.R. JEWELL, et al., Defendants. THE HUMANE SOCIETY OF THE UNITED STATES, et al., Plaintiffs, v. Civil Action No (ABJ U.S. FISH AND WILDLIFE SERVICE, et al., Defendants. RULE 59(e MOTION TO ALTER OR AMEND JUDGMENT by Defendant-Intervenor State of Wyoming Defendant-Intervenor State of Wyoming moves this Court under Rule 59(e of the Federal Rules of Civil Procedure to reconsider the Order (and Memorandum Opinion it issued in this case on September 23, The State bases this motion on new evidence that was not previously available. In support of this motion, the State alleges and argues as follows: 1. On September 24, 2014, undersigned counsel conferred via telephone with all counsel of record as required by LCvR 7(m. The Defenders of Wildlife Plaintiffs oppose the motion. The Humane Society Plaintiffs need to see the content of the emergency rule before taking a position on the motion. Defendant-Intervenors Safari Club International and the Rocky

2 Case 1:12-cv ABJ Document 69 Filed 09/24/14 Page 2 of 5 Mountain Elk Foundation and Amicus Curiae the Wyoming Wolf Coalition support the motion. The Federal Defendants will review the motion and file a response. Undersigned counsel left a voice mail with counsel for Defendant-Intervenor National Rifle Association but has not heard back. 2. On September 30, 2012, the United States Fish and Wildlife Service removed the gray wolf population in Wyoming from the list of endangered and threatened species. 77 Fed. Reg. 55,530-55,603 (Sept. 10, The State exercised management authority over wolves within Wyoming in areas subject to state jurisdiction from September 30, 2012, to September 23, On September 23, 2014, this Court set aside and vacated the 2012 Wyoming delisting rule and reinstated the gray wolf population in Wyoming to the list of endangered and threatened species, thereby divesting the State of management authority over the gray wolf population in Wyoming and re-vesting that management authority with the Service. (See Doc. 67 at 1-2; 68 at This Court set aside and vacated the 2012 Wyoming delisting rule based upon one finding that the Service improperly relied on unenforceable statements of intent and mere assurances in the Wyoming Gray Wolf Management Plan and the Addendum to that Plan in determining that the State s wolf management scheme satisfied the adequate regulatory mechanisms requirement for delisting in the Endangered Species Act. (Doc. 68 at 23, 26 This finding notwithstanding, this Court affirmed the Service s conclusions that the gray wolf population in Wyoming has recovered and is not endangered or threatened within a significant portion of its range. (Doc. 68 at 2, 32, 39 2

3 Case 1:12-cv ABJ Document 69 Filed 09/24/14 Page 3 of 5 5. On September 24, 2014, the Wyoming Game and Fish Commission adopted an emergency rule to give the Gray Wolf Management Plan and the Addendum the status of Commission rules with the force and effect of law. (See Choma Aff. Ex. 1 This emergency rule took effect when it was filed with the Wyoming Secretary of State on September 24, See Wyo. Stat. Ann (b. 6. In Wyoming, an emergency rule remains in effect for 120 days and can be renewed once for another 120 days. Wyo. Stat. Ann (b. Thus, an emergency rule can remain in effect for no more than 240 days. (Id. Given this legal limitation in the Wyoming Administrative Procedure Act, the Commission has started the process of adopting a permanent rule to give the Gray Wolf Management Plan and the Addendum the status of Commission rules with the force and effect of law. (Choma Aff. 3 The Commission expects to have the permanent rule in place by mid-november before the emergency rule expires. (Id. 7. In light of the emergency rule and its legal effect on the Gray Wolf Management Plan and the Addendum, the State moves this Court to reconsider the September 23 Order as permitted by Rule 59(e, to hold that the State s existing wolf management scheme satisfies the requirements for delisting under the Endangered Species Act, and to affirm the 2012 Wyoming delisting rule. Legal Standard 8. To prevail on a Rule 59(e motion, the State must present new evidence to this Court that: (1 was not previously available, see Metro. Life Ins. Co. v. Blyther, 964 F.Supp.2d 61, 69 (D.D.C. 2013; and (2 impacts this Court s analysis of the adequate regulatory mechanisms issue, see Moffett v. Prudential Life Ins. Co. of Am., 2012 WL , *2 (D.D.C. Nov. 30, The emergency rule satisfies both of these criteria. 3

4 Case 1:12-cv ABJ Document 69 Filed 09/24/14 Page 4 of 5 Argument 9. The emergency rule to make the Wolf Management Plan and the Addendum Commission rules with the force and effect of law did not exist until September 24, 2014, the day the rule was filed with the Wyoming Secretary of State. See Wyo. Stat. Ann (b, (c. Thus, the emergency rule is new evidence for purposes of Rule 59(e because it was not available to the State until now. 10. The emergency rule also impacts this Court s analysis of the adequate regulatory mechanisms issue. This Court set aside and vacated the 2012 Wyoming delisting rule because this Court believes the Wolf Management Plan and the Addendum are not legally enforceable. (Doc. 68 at 23, 26 The emergency rule makes the Wolf Management Plan and the Addendum Commission rules and, as such, they have the force and effect of law. See Johnson v. City of Laramie, 2008 WY 73, 7, 187 P.3d 355, 357 (Wyo (in Wyoming, [p]roperly promulgated rules and regulations have the force and effect of law. As a result, the legal basis for this Court s decision to set aside and vacate the 2012 Wyoming delisting rule no longer exists. [Intentionally Left Blank] 4

5 Case 1:12-cv ABJ Document 69 Filed 09/24/14 Page 5 of Since the Wolf Management Plan and the Addendum now are Commission rules having the force and effect of law, the State asks this Court to alter or amend the September 23 Order (and Memorandum Opinion: (a to hold that the State s wolf management scheme satisfies the requirements for delisting under the Endangered Species Act; and (b to affirm the 2012 Wyoming delisting rule. Submitted this 24th day of September, ATTORNEY FOR DEFENDANT- INTERVENOR STATE OF WYOMING /s/ Jay Jerde Jay Jerde (Wyo. State Bar No Special Assistant Attorney General 123 State Capitol Cheyenne, WY Tel: Fax: jay.jerde@wyo.gov Certificate of Service I hereby certify that a copy of the foregoing was served today via the Court s CM/ECF system on all counsel of record. /s/ Jay Jerde Jay Jerde 5

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13 Case 1:12-cv ABJ Document 69-2 Filed 09/24/14 Page 1 of 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA DEFENDERS OF WILDLIFE, et al., Plaintiffs, v. Civil Action No (ABJ S.M.R. JEWELL, et al., Defendants. THE HUMANE SOCIETY OF THE UNITED STATES, et al., Plaintiffs, v. Civil Action No (ABJ U.S. FISH AND WILDLIFE SERVICE, et al., Defendants. ORDER GRANTING RULE 59(e MOTION TO ALTER OR AMEND JUDGMENT THIS MATTER having come before this Court on the Rule 59(e Motion to Alter or Amend Judgment filed by the State of Wyoming, and this Court having reviewed the Motion and being fully apprised in this matter, IT IS ORDERED that the Motion is GRANTED. DATED this day of, AMY BERMAN JACKSON United States District Judge