Case 9:09-cv DWM Document 188 Filed 03/18/11 Page 1 of 32

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1 Case 9:09-cv DWM Document 188 Filed 03/18/11 Page 1 of 32 BRIAN K. GALLIK Goetz, Gallik & Baldwin, P.C. 35 North Grand P.O. Box 6580 Bozeman, MT Telephone: ( Facsimile: ( bgallik@goetzlawfirm.com MICHAEL P. SENATORE Of Counsel, Defenders of Wildlife th Street, N.W (phone (fax D.C. Bar No msenatore@defenders.org WILLIAM J. SNAPE, III Of Counsel, Center for Biological Diversity 5268 Watson Street, NW Washington, D.C D.C. Bar No bsnape@biologicaldiversity.org MICHAEL R. EITEL, Trial Attorney United States Department of Justice Environment & Natural Resources Division Wildlife & Marine Resources Section 1961 Stout Street, 8th Floor, Room 812 Denver, Colorado Tel. ( / Fax ( Michael.Eitel@usdoj.gov 1

2 Case 9:09-cv DWM Document 188 Filed 03/18/11 Page 2 of 32 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA MISSOULA DIVISION DEFENDERS OF WILDLIFE, et al., v. Plaintiffs, KEN SALAZAR, et al., Defendants. GREATER YELLOWSTONE COALITION, v. Plaintiff, KEN SALAZAR, et al., Defendants Case No. cv m-dwm (Lead cv m-dwm (consolidated cases MEMORANDUM IN SUPPORT OF JOINT MOTION FOR AN INDICATIVE RULING ON A JOINT MOTION TO PARTIALLY STAY THE COURT S AUGUST 5, 2010 JUDGMENT 2

3 Case 9:09-cv DWM Document 188 Filed 03/18/11 Page 3 of 32 INTRODUCTION On August 5, 2010, this Court entered an order and final judgment in this matter, involving challenges to a Fish and Wildlife Service rule that removed a portion of the Northern Rocky Mountain distinct population segment of gray wolves from the federal list of threatened and endangered wildlife. See Docket No. 164, 165. The Court s order was subsequently appealed. 1 On February 23, 2011, the Ninth Circuit granted Federal Defendants motion to stay all proceedings in the appeal until March 24, 2011, to allow further settlement negotiations between the parties. Order, Docket No. 21, Defenders of Wildlife v. Salazar, Case No (9 th Cir.. As a result of negotiations that have occurred since the Ninth Circuit granted this stay, Federal Defendants and ten of the fourteen plaintiffs in this matter ( Settling Plaintiffs have reached a settlement that could resolve all issues in the Federal Defendants pending appeal. 1 The State of Idaho filed a Notice of Appeal on September 30, 2010 (Docket No. 166; the Idaho Farm Bureau, et al., filed a Notice of Appeal on September 30, 2010 (Docket No. 167; the State of Montana filed a Notice of Appeal on October 1, 2010 (Docket No. 168; Federal Defendants filed a Notice of Appeal on October 1, 2010 (Docket No. 172; the National Rifle Association and the Safari Club International filed a Notice of Appeal on October 1, 2010 (Docket No. 173; and the Sportsman for Fish and Wildlife, et al., filed a Notice of Appeal on October 13, 2010 (Docket No The Ninth Circuit Court of Appeals has consolidated these pending appeals (Case Nos , , , , , of the District Court s August 5, 2010 Order and Judgment. 1

4 Case 9:09-cv DWM Document 188 Filed 03/18/11 Page 4 of 32 This settlement could also resolve another matter pending before this Court, Defenders of Wildlife v. Gould, 08-cv-14-DWM (D. Mont., which involves a challenge to a rule promulgated under Section 10(j of the Endangered Species Act ( ESA for the nonessential experimental population of grey wolves in the Northern Rocky Mountains region. The remaining four of the fourteen plaintiffs have not joined the settlement. 2 Briefly, the settlement would: commit the Federal Defendants to withdraw the Interior Department Solicitor s opinion interpreting significant portion of its range which formed the basis of the 2009 delisting rule; commit plaintiffs to dismiss their challenge to the Section 10(j regulations and to forgo additional wolf-related litigation for a period of time; reinstate delisted status for wolves in Idaho and Montana while retaining protections for wolves in Oregon, Washington and Utah; require Federal Defendants to monitor the status of wolves and to secure an independent scientific assessment of the viability of the species in the northern Rockies; require Federal Defendants to consider designating a different Distinct 2 Settling Plaintiffs are: Defenders of Wildlife, Natural Resources Defense Council, Sierra Club, Center for Biological Diversity, Hells Canyon Preservation Council, Greater Yellowstone Coalition, Jackson Hole Conservation Alliance, Oregon Wild, Cascadia Wildlands Project, and Wildlands Network (formerly the Wildlands Project. Non-settling Plaintiffs are: Humane Society of the United States, Friends of the Clearwater, Alliance for the Wild Rockies, and Western Watersheds Project. 2

5 Case 9:09-cv DWM Document 188 Filed 03/18/11 Page 5 of 32 Population Segment of wolves after they approve a Wyoming state management plan and proposes a new northern Rockies wolf delisting rule; and require Settling Plaintiffs to refrain from submitting listing petitions regarding wolves for a period of time. See Exhibit 1. To effectuate this settlement and promote the cooperation and concessions negotiated between the Federal Defendants and Settling Plaintiffs ( Settling Parties, the settlement agreement is contingent upon this Court -- utilizing its traditional equitable authorities and those recognized in Rule 60(b of the Federal Rules of Civil Procedure -- staying operation of the remedial aspects of the Court s Judgment (vacatur and setting aside of the 2009 Rule as applied to the States of Idaho and Montana, until the U.S. Fish and Wildlife Service ( FWS promulgates a new regulation regarding the listed status of the Northern Rocky Mountain ( NRM gray wolf population. 3 This relief is uniquely necessary and warranted in this case in order to allow for a settlement that could resolve long-running and contentious litigation and to create an atmosphere conducive to the collective desire of the Settling Parties to work, in cooperation, to address the status of the gray wolves. 3 The Motion does not seek to modify or vacate the Court s underlying opinion or conclusions of law. It seeks only a stay of the remedial aspects of the Court s Judgment that vacates and sets aside the 2009 Rule as applied in Montana and Idaho. 3

6 Case 9:09-cv DWM Document 188 Filed 03/18/11 Page 6 of 32 Accordingly, the Settling Parties jointly move this Court for an indicative ruling pursuant to Rule 62.1 of the Federal Rules of Civil Procedure to ascertain whether the Court would, upon a remand of this case from the Ninth Circuit Court of Appeals, partially stay the remedial aspects of its Judgment, as applied to the States of Idaho and Montana, to allow for implementation of the settlement agreement developed between the Settling Parties in this case. Upon receipt of the Court s ruling, the Settling Parties can then ascertain whether to ask the Ninth Circuit to issue a limited remand to this Court to execute the partial stay of its Judgment. 4 The Settling Parties respectfully request that the Court expedite consideration of this motion. The stay in the Ninth Circuit expires on March 24, 2011, and litigation in the related Section 10(j matter is ongoing. An expeditious ruling on the instant motion would benefit the parties in all of these related cases and could avoid the unnecessary continuation of litigation in this Court and in the Ninth Circuit. 4 The Settling Parties will be apprising the Ninth Circuit of the filing of the instant motion and will ask that Court to stay further briefing on that appeal until this Court has an opportunity to act on this motion. 4

7 Case 9:09-cv DWM Document 188 Filed 03/18/11 Page 7 of 32 BACKGROUND This case arises out of a controversy regarding the protection of wolves in the Northern Rocky Mountains under the ESA and the validity of the Federal Defendants interpretation of a critical statutory term in the ESA. Plaintiffappellees challenged a 2009 final rule issued by FWS that identified a distinct population segment ( DPS of gray wolves in the NRM region, and which relied on a U.S. Department of the Interior s Solicitor Opinion entitled The Meaning of In Danger of Extinction Throughout All or a Significant Portion of Its Range (M (March 16, 2007 ( M-Opinion to remove ESA protections for the DPS, except in the State of Wyoming. See Final Rule, 74 Fed. Reg (Apr. 2, The States of Idaho and Montana intervened in support of the Rule, as did groups representing sportsmen and others who supported the delistings. On August 5, 2010, this Court ruled that the M-Opinion was not a reasonable interpretation of the term significant portion of its range and accordingly that the ESA did not permit FWS to protect an ESA-listed species or DPS only in one portion of its range and, on that basis, vacated the 2009 Rule. See Defenders of Wildlife v. Salazar, 729 F. Supp. 2d 1207 (D. Mont Appeals from the final judgment of the district court were filed by the federal government and by several intervenors, and all appeals from the final judgment were consolidated. The appeals were placed in the Ninth Circuit Mediation Program 5

8 Case 9:09-cv DWM Document 188 Filed 03/18/11 Page 8 of 32 and, while mediation telephonic conferences were held in November and December 2010, those efforts did not result in a settlement. On February 23, 2011, the Ninth Circuit stayed the appeals until March 24, 2011, pursuant to the parties joint motion for a stay pending settlement negotiations. Before and following the Ninth Circuit s stay, the parties have repeatedly met and discussed resolving this case to achieve a prompt and acceptable result. As a result of those discussions, the parties were able to reach an agreement, with this requested partial vacatur being one of the requirements. Granting this request hopefully would bring finality to not only this litigation, but also the separate litigation currently pending before this Court challenging FWS s promulgation of a 10(j rule for the NRM experimental populations, Defenders of Wildlife v. Gould, 08-cv-14-DWM (D. Mont.. This motion requests that the Court partially vacate its order so as to effectuate the Settling Parties agreement and thus help resolve this case in a prompt and fair manner. STANDARD OF REVIEW I. RULE 62.1 OF THE FEDERAL RULES OF CIVIL PROCEDURE Rule 62.1 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 6

9 Case 9:09-cv DWM Document 188 Filed 03/18/11 Page 9 of 32 that purpose or that the motion raises a substantial issue. Fed. R. Civ. P. 62.1(a; Davis v. Yageo Corp., 481 F.3d 661, 685 (9th Cir. 2007; Crateo, Inc. v. Intermark, Inc., 536 F.2d 862, 869 (9th Cir (discussing similar procedure for an indicative ruling that is now codified by Rule In conducting the inquiry, the 2009 Advisory Committee Notes explains: Often it will be wise for the district court to determine whether it in fact would grant the motion if the court of appeals remands for that purpose. But a motion may present complex issues that require extensive litigation and that may either be mooted or be presented in a different context by decision of the issues raised on appeal. In such circumstances the district court may prefer to state that the motion raises a substantial issue, and to state the reasons why it prefers to decide only if the court of appeals agrees that it would be useful to decide the motion before decision of the pending appeal. The district court is not bound to grant the motion after stating that the motion raises a substantial issue; further proceedings on remand may show that the motion ought not be granted. Fed. R. Civ. Pro (advisory committee notes (2009. II. RULE 60(B OF THE FEDERAL RULES OF CIVIL PROCEDURE Upon regaining jurisdiction over this matter through a remand from the Ninth Circuit Court of Appeals, this Court has authority to modify or vacate its judgment 5 under the Federal Rules of Civil Procedure and Ninth Circuit law. Rule 60(b of the Federal Rules of Civil Procedure allows the Court to relieve a party 5 The word judgment includes a decree and any order from which an appeal lies and encompasses both final judgments and appealable interlocutory orders. Balla v. Idaho State Bd. of Corrections, 869 F.2d 461, 466 (9th Cir

10 Case 9:09-cv DWM Document 188 Filed 03/18/11 Page 10 of 32 from a final judgment, order, or proceeding if it (5 is no longer equitable; or (6 any other reason that justifies relief. Fed. R. Civ. P. 60(b(5, (6. 6 [A] Rule 60(b motion is addressed to the sound discretion of the [district] court [and] gives the court a grand reservoir of equitable power to do justice in a particular case. Pierce v. Cook & Co., 518 F.2d 720, 722 (10th Cir (citations and internal quotations omitted; United States v. State of Washington, 98 F.3d 1159, 1163 (9 th Cir ("Rule 60(b(6 does not particularize the factors that justify relief, but we have previously noted that it provides courts with authority adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice (citation omitted; Mayes v. City of Hammond, 631 F. Supp. 2d 1082, 1086 (N.D. Ind ( [T]he discretion to make case-by-case assessments concerning the justice of granting a requested vacatur is squarely committed to the sound discretion of the district court. (citations omitted. In U.S. Bancorp Mortg. Co. v. Bonner Mall P ship, 513 U.S. 18, 29 (1994, the court explained that even in the absence of extraordinary circumstances, a court of appeals presented with a request for vacatur of a district court judgment may remand the case with instructions that the district court consider the request, 6 A party seeking relief from an order must make a motion 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. Ashford v. Steuart, 657 F.2d 1053, 1055 (9th Cir This factor is satisfied here, as the motion is predicated on the parties settlement negotiated, in good faith, over the past several months. 8

11 Case 9:09-cv DWM Document 188 Filed 03/18/11 Page 11 of 32 which it may do pursuant to Federal Rule of Civil Procedure 60(b. Id. at 29. Noting that a district court s power to vacate its own judgment in aid of settlement is vastly different from a court of appeal s power to vacate a judgment while an appeal is pending, the Ninth Circuit has held that an equitable balancing test, rather than the extraordinary circumstances test of Bonner Mall, applies to Rule 60(b motions at the district court level. See American Games v. Trade Prods, 142 F.3d 1164, (9th Cir ( Given the fact-intensive nature of the inquiry required, it seems appropriate that a district court should enjoy greater equitable discretion when reviewing its own judgments. ; Savarese v. Edrick Transfer & Storage, 513 F.2d 140, 146 (9th Cir ( [T]he granting or denial of [60(b] motions is left largely to the discretion of the district court.. Under Ninth Circuit law, this balancing test requires consideration of two equitable factors: the district court can decide whether to vacate its judgment in light of [(1] the consequences and attendant hardships of dismissal or refusal to dismiss' and [(2] the competing values of finality of judgment and right to relitigation of unreviewed disputes. Dilley v. Gunn, 64 F.3d 1365, 1371 (9th Cir.1995 (citation omitted. The Court should also consider the policy in favor of settlement, which weighs in favor of vacatur of a court s judgment under Rule 60(b. Bates v. Union Oil Co., 944 F.2d 647, (9 th Cir The purpose of this balancing process is to enable a district court to consider fully the 9

12 Case 9:09-cv DWM Document 188 Filed 03/18/11 Page 12 of 32 consequences of vacatur. Id. at 650; Allard v. DeLorean, 884 F.2d 464, 467 (9th Cir ( [T]he district court should balance the competing interests of the parties in order to determine whether the judgment below should be vacated.. This authority necessarily includes the authority to do as requested here and take more circumscribed actions short of vacatur in its entirety, such as partially vacating or modifying the Court s judgment. See, e.g., Bear Valley Mut. Water Co. v. R.A. Riddell, 493 F.2d 948, 650 (9th Cir (Rule 60(b(6 relief must be that which could have been appropriately granted in the original judgment; Kirby Forest Indus. Inc. v. United States, 467 U.S. 1, 18 (1984 (Rule 60(b(6 vests the Federal Courts with substantial discretion to amend a final order for any... reason justifying relief from the operation of the judgment. (quoting Fed. R. Civ. P. Rule 60(b(6; Bellevue Manor Assocs. v. United States, 165 F.3d 1249, 1252 (9th Cir (rule codifies the courts traditional authority to modify or vacate the prospective effect of their decrees ; cf. Wright & Miller, 13C Fed. Prac. & Proc. Juris (3d ed. ( Settlement on terms that call for entry of a new judgment, not simply vacation of the original judgment, has justified vacatur.. Accordingly, using this equitable balancing test, the Court may vacate or modify its own judgment where, for instance, the circumstances have changed by way of a settlement. See American Games, 142 F.3d at 1169 (affirming district 10

13 Case 9:09-cv DWM Document 188 Filed 03/18/11 Page 13 of 32 court s vacatur of its own judgment; see also Ringsby Truck Lines, Inc. v. W. Conference of Teamsters, 686 F.2d 720, 722 (9 th Cir (remanding to district court to vacate judgment if the balance of equities so requires, where the parties agreed to vacatur in settlement. See also Wal-Mart Stores v. Rodriquez, 322 F.3d 747, (1st Cir (granting vacatur of the district court s preliminary injunction and associated opinion and orders upon a joint request from the parties and in order to effectuate an amicable settlement of the litigation; Motta v. INS, 61 F.3d 117 (1st Cir (per curiam (vacating district court s judgment upon a settlement and request of the parties because, inter alia, all the parties had a significant interest in vacating the district court's opinion and that interest outweighed the social value of the precedent. TERMS OF THE PROPOSED SETTLEMENT As explained above, over the course of the last several months, many of the litigants have worked diligently towards a settlement of this matter. Various parties pursued settlement both in informal mediation sessions and through the formal Ninth Circuit mediation program. In the last several weeks, Federal Defendants and representatives of all of the plaintiff groups met several times to discuss various proposals for resolving the Federal Defendants appeal of this matter, while simultaneously resolving the challenge to the Fish and Wildlife Service 10(j rule that is currently pending before this Court. Defenders of 11

14 Case 9:09-cv DWM Document 188 Filed 03/18/11 Page 14 of 32 Wildlife v. Gould, 08-cv-14-DWM (D. Mont.. As a result of these recent conversations, the Settling Parties have reached an agreement. The terms of the agreement are summarized below. First, the terms of the Agreement are effective if, and only if, the Court enters an order as requested herein that partially stays the effect of that portion of the Court s August 5, 2010, Order vacating and setting aside FWS s 2009 delisting rule (74 Fed. Reg in the States of Idaho and Montana. If the Court enters such an order the following terms then are effective. Second, in acknowledgement of this Court s order and final judgment, Federal Defendants will withdraw the Solicitor s 2007 M-Opinion setting forth the interpretation of the phrase significant portion of the range, as used in the definition of threatened and endangered species, 16 U.S.C. 1532(6, (20. Should the Court approve this settlement, the Federal Defendants would promptly withdraw the M-Opinion. Federal Defendants would, within 60 days of withdrawing the M-Opinion, publish in the Federal Register for public notice and an opportunity to comment a proposed interpretation of the statutory term, throughout all or a significant portion of its range, 16 U.S.C. 1532(6, (20. Additionally, while no final decision regarding appeal of the district court s judgment by the United States has been made at this time, if this settlement is approved by the district court it is the Settling Plaintiffs expectation that the 12

15 Case 9:09-cv DWM Document 188 Filed 03/18/11 Page 15 of 32 federal government will file a motion to voluntarily dismiss its appeal and it is expected that this issue will be resolved prior to finalizing the settlement agreement. Third, Federal Defendants will pursue a new rule or rules regarding the status of wolves in the NRM Region. Specifically, with respect to the future of wolf management in the NRM Region, Federal Defendants will propose a new rule for public notice and comment to delist wolves in the NRM Region once two conditions are met. First, FWS must receive from the State of Wyoming a submission describing regulatory mechanisms, including but not limited to a wolf management plan, that FWS deems to be satisfactory. Second, the States of Idaho and Montana must continue to implement the wolf management plans that were in effect at the time FWS issued the 2009 delisting rule or must implement alternative wolf management plans that FWS deems to be satisfactory. As part of this rulemaking process, Federal Defendants commit to also consider a DPS that is limited to the three recovery areas (northwestern Montana, central Idaho, and the Yellowstone National Park area identified in FWS s NRM Wolf Recovery Plan (approved August 3, Nothing in the Agreement modifies or alters the Federal Defendants discretion afforded under law as to the substance of any final rule or rules addressing the status of wolves in the NRM. However, Federal Defendants have committed to not simply reissuing its 2009 delisting rule without 13

16 Case 9:09-cv DWM Document 188 Filed 03/18/11 Page 16 of 32 further consideration. Rather, in issuing any rule regarding wolves in the NRM Region, Federal Defendants commit to also consider a DPS that is different than the three recovery areas (northwestern Montana, central Idaho, and the Yellowstone National Park area identified in FWS s NRM Wolf Recovery Plan (approved August 3, Fourth, the Settling Parties have agreed that, during the period between now and the issuance of a new final rule regarding the status of wolves in the NRM Region, management of wolves in the States of Montana and Idaho would be returned to the States. The status of wolves in portions of Oregon, Washington, Wyoming and Utah that are within the DPS as defined in 2009 would be unchanged. To achieve this end, the Settling Parties respectfully request that this court stay its remedial order for wolves in Idaho and Montana until FWS issues a new rule regarding wolves in the NRM Region. While the Federal Defendants and Settling Parties still disagree about the precise status of wolves in these states, both sides have concluded that wolf populations are healthy enough that they can be managed appropriately by the States, particularly in light of the extensive monitoring, review, and study that Federal Defendants are committing to as part of this settlement agreement, described below. As part of the settlement, FWS would reaffirm that it issued the 2009 delisting rule in reliance on information, including management goals, predicted wolf population levels, and other elements provided 14

17 Case 9:09-cv DWM Document 188 Filed 03/18/11 Page 17 of 32 for in the State of Montana s 2003 Final Gray Wolf Conservation and Management Plan and the State of Idaho s 2002 Wolf Conservation and Management Plan, and the State of Idaho s 2008 step-down Wolf Population Management Plan. Fifth, Federal Defendants have agreed to conduct extensive monitoring of any delisted population of wolves. 7 Federal Defendants will publish an annual evaluation of the status and trends of wolves in the NRM Region. Federal Defendants also will work with state officials to acquire data regarding wolf losses and all relevant wolf population data on a timely basis. Finally, Federal Defendants will collect relevant data on the status of the population from other sources, as such data are available, and solicit input from independent scientists as part of its monitoring and assessment efforts. Further, after state management plans supporting a delisting rule have been in place and operational for at least three years, Federal Defendants have agreed to secure from independent scientists an assessment of whether, according to what those scientists determine to be the best available scientific information and with the consideration of the monitoring data gathered under ESA 4(g, wolves in the NRM Region are being managed in a way that reasonably assures the continued 7 FWS must engage in certain mandatory monitoring of any newly delisted population of wolves under ESA Section 4(g for five years. 16 U.S.C. 1533(g. As described below, as part of this settlement, Federal Defendants also have agreed to take several actions over and above the requirements of ESA Section 4(g. 15

18 Case 9:09-cv DWM Document 188 Filed 03/18/11 Page 18 of 32 presence of a sustainable, genetically integrated population of wolves within the NRM Region for the foreseeable future. Additionally, for any delisted population, Federal Defendants agree to consider whether, in light of the data gathered by Federal Defendants as part of the ESA Section 4(g monitoring, any substantial changes in the wolf management plans by the States, referenced in paragraph 4, above, may constitute a significant risk to the well being of the NRM wolves within the meaning of the emergency delisting provisions of ESA Section 4, 16 U.S.C. 1533(b(7. In consideration of these commitments by the Federal Defendants, the Settling Plaintiffs agree to the following terms. First, Settling Plaintiffs agree to stipulate to the dismissal with prejudice of their claims challenging FWS s (j Rule in Defenders of Wildlife v. Hall, 08-cv-14-DWM (D. Mont., pursuant to Fed. R. Civ. Pro. 41(a(1(A(ii. Settling Plaintiffs agree that they will not, either collectively or individually, file a lawsuit, raise claims against, or otherwise challenge in court before March 31, 2016, any final delisting or reclassification rule issued pursuant to the Settlement Agreement. Finally, Settling Plaintiffs agree that they will not, either collectively or individually, petition Federal Defendants to list either the NRM DPS of gray wolves (as defined by the 2009 Rule, or any wolf population or subpopulation located within the NRM Region for a period of three years after this Agreement becomes operative. This petition-free and litigation- 16

19 Case 9:09-cv DWM Document 188 Filed 03/18/11 Page 19 of 32 free window will allow the Federal Defendants to focus their efforts on monitoring and developing a new rule regarding the status of wolves in the Region in coordination with the States of Wyoming, Montana, and Idaho. Settling Plaintiffs believe that such a period will allow them to assess whether they believe the States have demonstrated sustainable and responsible management of wolf populations in accordance with the requirements of the ESA. The Agreement will not be an order of the Court or considered a consent decree. To the extent there is a dispute concerning implementation of the Agreement prior to the issuance of a new Rule addressing the status of the wolves, the Settling Parties agree to a dispute resolution process, and if that fails then the sole remedy for either party is to file a motion with the Court seeking to lift the stay of the Court s judgment. To the extent there is a dispute concerning implementation of the Agreement after the issuance of a new Rule addressing the status of the wolves, the Settling Parties agree to a dispute resolution process and if that fails, then the sole remedy is that the Settling Plaintiffs may seek to file a new lawsuit challenging any new action. ARGUMENT After years of litigation over the status of wolves in the NRM Region, the Settling Parties have reached an agreement that provides a path forward for Federal Defendants to remedy an erroneous interpretation of the ESA through a public 17

20 Case 9:09-cv DWM Document 188 Filed 03/18/11 Page 20 of 32 process and to work with the States to achieve a long-term solution to wolf management in the Northern Rocky Mountains. The States of Idaho and Montana, who have adopted wolf management plans FWS has long considered adequate, will be able to assume management control of the wolf populations in their states, and the State of Wyoming will have a renewed opportunity to submit a management plan for FWS approval. Plaintiffs interests in challenging the legal validity of the M-Opinion and preventing its application to other endangered and threatened species will be vindicated by Federal Defendants agreement to withdraw the opinion. Moreover, Plaintiffs interest in the recovery and long-term sustainability of the wolf population will be protected through the Federal Defendants commitments to undertake enhanced monitoring, issue annual status reports, and obtain independent scientific review of the status and trends of wolves in the NRM Region. This agreement will also preserve the Settling Plaintiffs right to take subsequent actions, such as filing a new listing petition after a three-year cooling off period, if, in their view, wolf populations are in jeopardy. In order for the agreement to become effective, the Settling Parties respectfully request that this Court stay its remedy order for wolves in Idaho and Montana, and return these wolves to a delisted status pending further rulemaking by FWS on the wolves in the NRM Region. 18

21 Case 9:09-cv DWM Document 188 Filed 03/18/11 Page 21 of 32 A. The Court Has Discretion to Modify Its Remedy Order As the Court acknowledged in its Opinion, vacatur of an unlawful final rule is not mandatory. See Idaho Farm Bureau Fed n v. Babbitt, 58 F.3d 1392, 1405 (9th Cir ( [W]hen equity demands, the regulation can be left in place while the agency follows the necessary procedures.. The APA grants the courts discretion in crafting a remedy after invalidating a regulatory action. Pacific Bell v. Pac-West Telecomm, Inc., 325 F.3d 1114, (9th Cir (permitting invalid agency order to stay in effect pending proceedings on remand. 8 In accord, the Court has ample discretion to stay vacatur of a remedy order under applicable law. See, e.g., Leyva v. Certified Grocers of California, 593 F.2d 857, (9th Cir ( A trial court may, with propriety, find it is efficient for its own docket and the fairest course for the parties to enter a stay of an action before it, pending resolution of independent proceedings which bear upon the case. This rule applies whether the separate proceedings are judicial, administrative, or 8 See also Western Oil and Gas Ass n v. EPA, 633 F.2d 803, 813 (9th Cir (recognizing that court has discretion to shape an equitable remedy in leaving a Clean Air Act regulation in place during remand; ASARCO, Inc. v. OSHA, 647 F.2d 1, 2 (9th Cir ( [W]hile (we must act within the bounds of the statute and without intruding upon the administrative province, (we may adjust (our relief to the exigencies of the case in accordance with the equitable principles governing judicial action. (citing Ford Motor Co. v. NLRB, 305 U.S. 364, 373 (1939; Idaho Farm Bureau, 58 F.3d at 1405 (leaving an ESA listing determination in place, despite significant errors in the determination because when equity demands, the regulation can be left in place while the agency follows the necessary procedures ; Allied-Signal v. U.S. Nuclear Reg. Comm n, 988 F.2d 146, (D.C. Cir (explaining that remand without vacatur is preferable when an agency might be able to support a rule through further explanation and the consequences of vacating may be quite disruptive.. 19

22 Case 9:09-cv DWM Document 188 Filed 03/18/11 Page 22 of 32 arbitral in character, and does not require that the issues in such proceedings are necessarily controlling of the action before the court.. Likewise, Fed. R. Civ. Pro. 60(b provides the Court with ample discretion to modify its original remedy order. It is important to note that the Settling Parties do not seek to modify or vacate the Court s opinion or conclusions of law. Nor do the Settling Parties seek an endorsement by the Court of the 2009 listing rule. In fact, by settling, the Federal Defendants will be effectuating the Court s legal ruling by withdrawing the 2007 M-Opinion interpreting significant portion of the range and beginning the process of issuing a final rule for wolves across the Region based on state management plans that address wolf management in all three recovery areas. Finally, the Settling Parties are not seeking a complete vacatur of the Court s remedy. Rather, the Settling Parties seek a stay of the remedy only for wolves in Idaho and Montana while the State of Wyoming amends it wolf management plan and FWS considers issuing any new delisting rules. B. The Settling Parties Agree that the Settlement Will Provide Protection for Delisted Wolves in Idaho and Montana and Ensure the Integrity of the Endangered Species Act This Settlement is the product of many months of negotiations and represents a carefully balanced compromise on the part of the Settling Parties and is, on-balance, in the best short- and long-term interest of wolves in the northern 20

23 Case 9:09-cv DWM Document 188 Filed 03/18/11 Page 23 of 32 Rockies, as well as the ESA. First, while the plaintiffs previously opposed the Federal and State position that keeping the delisting rule in place pending remand would not occasion great harm to the wolf populations in Idaho and Montana now, with the addition of meaningful protections such as monitoring, status reviews, independent scientific assessments of the status of delisted wolves, and preservation of protections for wolves in parts of the original NRM DPS, the Settling Plaintiffs are reasonably confident that wolves will remain viable in the northern Rockies pending a new delisting determination by FWS. Second, Settling Plaintiffs all of which have major institutional interests in upholding the integrity of the ESA and its effectiveness in protecting many other endangered and threatened species considered the Federal Defendants commitment under this agreement to withdraw the M-Opinion. The Settling Plaintiffs are also motivated by a desire to help resolve or at least diminish the ongoing public controversy surrounding the issue of wolf management in the northern Rockies. For their part, Federal Defendants believe that recent wolf data confirms healthy wolf populations in Idaho and Montana. According to the recently released Rocky Mountain Wolf Recovery 2010 Interagency Annual Report, the 2010 wolf population within the NRM Region (Idaho, Montana, Wyoming, eastern one-third of Washington and Oregon, and a small part of north central Utah is 21

24 Case 9:09-cv DWM Document 188 Filed 03/18/11 Page 24 of 32 roughly the same as it was in 2009 with at least 1,651 wolves in 244 packs and 111 breeding pairs. Wolf packs and especially breeding pairs largely remain within the core recovery areas, but breeding pairs were again confirmed in eastern Washington and Oregon. Agency control, hunting, other causes of mortality, and the natural territorial behavior of wolves appeared to maintain the wolf population at about 2009 levels. While breeding pairs and pack numbers were virtually identical, total numbers were down from an estimate of at least 1,733 wolves in 2009 to at least 1,651 wolves in The apparent decline was solely due to a lower minimum population estimate in Idaho. Rocky Mountain Wolf Recovery2010 Interagency Annual Report, at 1. (available at mary_and_background_3_9_11.pdf (last visited Mar. 17, The authorized sport hunt in Montana in 2009 resulted in the take of 72 of an authorized 75 wolves. In Idaho, the hunting season resulted in the take of 186 wolves out of the total authorized number of 220. See Montana 2010 Annual Report at 19 ( ort_ pdf (last visited Mar. 17, 2011; Idaho 2010 Annual Report at 13 ( ID-NPT-WOLF-CONSERVATION-AND-MANAGEMENT pdf (last visited Mar. 17,

25 Case 9:09-cv DWM Document 188 Filed 03/18/11 Page 25 of 32 Under the state management plans that were in effect at the time of the 2009 delisting rule, after delisting, the Montana plan predicted that, under State management, the wolf population would be between 328 and 657 wolves (74 Fed. Reg. at 15167, while the Idaho plan calls for maintaining the population at or above 2005 levels, or approximately 520 wolves (74 Fed. Reg. at While the Settling Plaintiffs would like to see more wolves maintained in Montana and Idaho, they believe that maintaining these numbers of wolves, combined with the interim protections provided for in other portions of the NRM DPS, enhanced monitoring and scientific surveys, as well as preservation of their rights under the ESA, is a desirable outcome under the circumstances. Federal Defendants believe that allowing this state-managed take under the conditions of the settlement will support rather than interfere with long-term maintenance of a recovered wolf population in the Northern Rocky Mountains. C. Modifying the Remedy Order Promotes the Laudable Goal of Settlement The Settling Parties requested relief serves laudable goals and will protect the parties from ill effects, and any negative consequences do not outweigh the propriety of the relief sought. Therefore, the Settling Parties respectfully submit that the requested relief is warranted in this case. 23

26 Case 9:09-cv DWM Document 188 Filed 03/18/11 Page 26 of 32 The principal factor in favor of a limited stay of the Court s judgment is the interest in promoting settlement, which requires giving effect to the terms of a negotiated resolution wherever possible. Granting relief to a judgment where the parties have agreed that such relief is acceptable, as here, adds predictability to settlement discussions and increases the likelihood of settlement. See, e.g., Wright & Miller, 13C Fed. Prac. & Proc. Juris (3d ed. ( The Judgment narrows the range of uncertainty, often substantially, but settlement continues to be important not only to reduce cost and delay but also to achieve an outcome that may better address the needs of all parties.. Moreover, the policy of this Circuit is to favor and encourage settlement. See Ahern v. Central Pac. Freight Lines, 846 F.2d 47, 48 (9th Cir.1988 ( The Ninth Circuit is firmly committed to the rule that the law favors and encourage compromise settlements. (citation omitted; In re Syncor ERISA Litig., 516 F.3d 1095, 1101 (9th Cir ( there is a strong judicial policy that favors settlements ; Officers for Justice v. Civil Service Comm'n, 688 F.2d 615, 625 (9th Cir ( [I]t must not be overlooked that voluntary conciliation and settlement are the preferred means of dispute resolution.. By all accounts, the settlement agreement upon which this motion is based is a fair one, entered into in good faith by all settling parties, and factors strongly in support of the instant motion. In fact, the relief requested herein is sought by 24

27 Case 9:09-cv DWM Document 188 Filed 03/18/11 Page 27 of 32 Settling Plaintiffs in order to effectuate a settlement of two lawsuits that advances wolf conservation overall in a legally viable manner. See Major League Baseball Props. v. Pacific Trading Cards, 150 F.3d 149, (2nd Cir (finding exceptional circumstances present where, inter alia, vacatur was a necessary condition of settlement and where the victor in the district court wanted a settlement as much as, or more than, the loser did ; Click Entertainment v. JYP Entertainment Co., 2009 WL , *3 (D. Haw. Sept. 22, 2009 ( [T]he Court is persuaded by the fact that it is the Parties jointly, and more specifically Plaintiff (the prevailing party, who seeks to vacate the Verdict and Amended Judgment.. The Settling Parties motion is also justified due to the effects of granting such relief on judicial economy. In considering a Rule 60(b motion, courts consider the implications of the request for vacatur on judicial resources. When the effect on precedent is limited and when judicial resources are not squandered, however, courts have found that the remedy is appropriate. Orlowski v. Eriksen, 2010 WL , *2 (N.D. Ill. June 10, 2010 (citation omitted. In this case, the Settling Parties requested relief may not only avoid further, protracted, and costly litigation in the court of appeals, but it will hopefully lead to resolving another case currently pending before the Court. In particular, an integral aspect of the settlement (and this motion is the dismissal of Defenders of Wildlife v. Gould, 08- cv-14-dwm (D. Mont., a case that has consumed the parties and court s 25

28 Case 9:09-cv DWM Document 188 Filed 03/18/11 Page 28 of 32 resources to varying degrees over the past three years and, if continued, would likely be subject to litigation for several years to come. Additionally, the terms of the settlement agreement would reach into the future to avoid likely litigation over future regulatory actions, further conserving judicial resources. All of these factors support the Settling Parties motion. Finally, the competing value of finality does not undermine, but rather supports, the Settling Parties motion. See Dilley v. Gunn, 64 F.3d 1365, 1371 (9th Cir (factoring in the court s equitable inquiry focus on the values of finality of judgment and right to relitigation of unreviewed disputes (citations omitted. Unlike many cases seeking vacatur of a judgment pursuant to a settlement, the Settling Parties here do not seek to disturb this Court s August 5, 2010 Order or undo any preclusive effect the Court s Judgment may have. To the contrary, the provisions of the settlement agreement and the requested relief herein accept the Court s order and, in fact, go further to effectuate the Court s finding than the Court s vacatur of the 2009 Rule. 26

29 Case 9:09-cv DWM Document 188 Filed 03/18/11 Page 29 of 32 DATED this 18 day of March, 2011 /s/ Brian K. Gallik Brian K. Gallik GOETZ, GALLIK & BALDWIN, P.C. 35 North Grand P.O. Box 6580 Bozeman, MT Telephone: ( Facsimile: ( /s/ Michael P. Senatore Michael P. Senatore (D.C. Bar # Of Counsel Defenders of Wildlife th Street, N.W (phone (fax msenatore@defenders.org /s/ William J. Snape, III William J. Snape, III Of Counsel Center for Biological Diversity 5268 Watson Street, NW Washington, D.C DC Bar No bsnape@biologicaldiversity.org Attorneys for the Moving Plaintiffs MICHAEL W. COTTER United States Attorney District of Montana 27

30 Case 9:09-cv DWM Document 188 Filed 03/18/11 Page 30 of 32 OF COUNSEL: MARGOT ZALLEN Department of the Interior Office of the Solicitor Rocky Mountain Region Lakewood, Colorado MARK SMITH Assistant United States Attorney rd Ave. North, Suite 400 Billings, MT Tel: ( / Fax ( IGNACIA S. MORENO Assistant Attorney General Environment & Natural Resources Division SETH M. BARSKY, Section Chief /s/ Michael R. Eitel MICHAEL R. EITEL, Trial Attorney United States Department of Justice Environment & Natural Resources Division Wildlife & Marine Resources Section 1961 Stout Street, 8th Floor, Room 812 Denver, Colorado Tel. ( / Fax ( Michael.Eitel@usdoj.gov Attorneys for Federal Defendants 28

31 Case 9:09-cv DWM Document 188 Filed 03/18/11 Page 31 of 32 CERTIFICATE OF COMPLIANCE Pursuant to Local Rule 7.1(d(2(A, the attached brief is proportionately spaced, has a typeface of 14 points, and contains 6,421 words, excluding the caption and certificates of service and compliance, as indicated by processor s word count function. DATED this 18 th day of March, /s/ Michael R. Eitel Trial Attorney 29

32 Case 9:09-cv DWM Document 188 Filed 03/18/11 Page 32 of 32 CERTIFICATE OF SERVICE I certify that on the 18th day of March, 2011, the Department of Justice served copies of the attached document by CM/ECF to counsel of record. I also certify that I sent the foregoing via overnight mail, postage prepaid, to the following counsel: Grant D. Parker Rocky Mountain Elk Foundation 5705 Grant Creek Missoula, Montana Tel: Clive J. Strong Office of the Attorney General 700 West State Street, 2 nd Floor Boise, Idaho Tel: /s/ Michael R. Eitel MICHAEL R. EITEL, Trial Attorney 30