1/8/2011 4:58:00 PM
Ely man's wolf delisting case first court appearance Monday in Duluth
by Nick Wognum
An Ely man's lawsuit involving delisting the gray wolf will start at the federal courthouse in Duluth Monday.
"What we want to show is the real reason the wolf should be taken off the list is because they have recovered," said Gerald Tyler of Ely. "The government has declared three or four times that they've recovered and with all the problem wolves, even the International Wolf Center says we can't have these wolves running around downtown Ely. Someday something awful is going to happen and we don't want that to happen."
Wolf reports in Ely have increased in the last five years, including wolves reported near the Ely city hall, near school buildings and the hospital and on the sidewalk in front of an apartment building.
The ramifications of this case have attracted the attention of the state attorney general, the National Rifle Association and Safari Club International.
And despite the U.S. Fish and Wildlife Service telling Sen. Amy Klobuchar it will proceed with delisting, the case moves forward.
Tyler pointed to the state of Minnesota's position that the wolf will not be successfully delisted without court intervention.
"The (Fish and Wildlife) Service has spent most of the past 10 years trying to delist portions of the two wolf species under the ESA," wrote Minnesota Attorney General Lori Swanson. "All of these efforts have failed, as various organizations have taken the Service to court and won."
Swanson cites four court cases dating back to 2005 where the USFWS actions have kept the wolf from becoming delisted.
In a suit brought by Defenders of Wildlife, the FWS was cited for making "arbitrary and capricious decisions." That same year, 2005, the National Wildlife Federation won when the FWS "failed in its basic administrative duty to provide the public with adequate notice and opportunity to comment on a Final Rule."
In 2008, the FWS lost in a case brought by the Humane Society when it relied on a "plain meaning" that did not exist.
The Humane Society won again in 2008 when the FWS did not provide proper notice and an opportunity for public comment.
"The state has become increasingly frustrated by the apparent lack of ability of defendants to successfully delist the wolf in a manner that allows for the state to manage its recovered wolf population, as well as the tedious pace with which defendants have proceeded in their past and current delisting efforts," Swanson wrote in a brief filed by state DNR head Mark Holsten.
The beginning
Wolf populations across the United States dropped to precipitous levels in the early 1970s. The gray wolf was given federal protection through the Endangered Species Act in 1974.
At that time, Minnesota had the only known reproducing wolf population in the lower 48 states with the exception of Isle Royal.
By 1978, the gray wolf population in northern Minnesota had improved and the classification changed from endangered to threatened.
Over the next 20 years, the state's wolf population grew and the range expanded. Today there are over 3,000 wolves in Minnesota, nearly double the 1,600 required by the Endangered Species Act.
Ely: Wolf ground zero?
Already the home of the International Wolf Center, Ely also hosted a wolf conference in December of 2009.
Put together by Tyler, it included a panel of experts who spoke and answered questions on wolves.
One of the participants was Aitkin resident Dale Lueck of the Minnesota State Cattlemen's Association. He would later join Tyler in his lawsuit against the FWS.
The intent to sue the federal government was filed on Jan. 15, 2010.
"We sent the lawsuit to the Secretary of the Interior," said Tyler. "And we closed with if no action is taken by the agency to delist the gray wolf within the Western Lake Distinct Population Segment within 60 days, we intend to sue. We are seeking declaratory relief and a court order compelling the Secretary to remove the gray wolf from the list of endangered and threatened species."
In June the FWS brought a motion to dismiss the case. Shortly thereafter, the state of Minnesota joined Tyler and Lueck's fight to delist the gray wolf.
Holsten's brief to the court contained this statement, "The gray wolf now thrives in Minnesota with a population that has greatly exceeded for over a decade the recovery goal set by the Defendant."
The state of Minnesota has been very critical of the FWS and pulled no punches in its filings made in support of the Tyler/Lueck case. The frustration includes the agency's failure to respond to the state's petition for delisting. A response is required by rule within 90 days, the state had at one point not received a response after 150 days.
"The state of Minnesota is left wondering whether a 'hold' pile is exactly where its petition sits," Swanson wrote to the court.
Multiple judges, venues
Monday's case will be heard in Duluth by Magistrate Judge Leo I. Brisbois, who will then report to the presiding judge in the case, Joan Ericksen. The case was originally assigned to Raymond Erickson, but he recused himself in June. Brisbois became a magistrate judge on August 30, 2010. He was raised in Hibbing, and his family are also members of the White Earth Band of Ojibwe Indians. Brisbois, 48, was born in Aurora, Minnesota, graduated from Hibbing High School, and received his undergraduate and law school degrees from Hamline University in St. Paul.
"Brisbois will prepare a report that goes to the honorable Judge Joan N. Ericksen that will hear our motion for summary judgement on Jan. 20 at the U.S. District Courthouse in Minneapolis," said Tyler.
Past precedent?
Tyler acknowledged the wolf delisting case has been partly based on a 2006 decision where the court ruled against the government over the delisting of the bald eagle.
"The facts were very similar in that case. The FWS failed to remove the bald eagle from the federal protection granted by the Endangered Species Act and a Minnesota resident brought a lawsuit in 2006 and the judge ordered that the bald eagle be delisted," said Tyler.
The FWS attorney disagrees with Tyler's argument and in a brief filed with the court, argues that the bald eagle case supports dismissal of the suit.
Michael R. Eitel, trial attorney for the government, wrote that the bald eagle case was based on the FWS failing to issue a final regulation within 12 months of publishing a proposed rule to delist the bald eagle. Eitel said that was not the case in the wolf lawsuit.
Politicians join in
Tyler knew Klobuchar was aware of his intentions to see the wolf delisted since a representative from the senator's office was at the 2009 wolf meeting in Ely. A letter was signed by Klobuchar and Rep. Jim Oberstar on May 19 asking the FWS to revisit delisting the gray wolf. A similar letter followed on May 20, this one signed by Sen. Al Franken along with Reps. Tim Walz, Colin Peterson, Erik Paulsen, Michele Bachman and John Kline.
"The Endangered Species Act has helped bring numerous species back from the brink of extinction. Like the Bald Eagle, the Gray Wolf has been able to reestablish itself and increase its range," said Klobuchar in May. "Now that the wolf range in Minnesota is coming close to farms, homes, and businesses delisting would give the Minnesota Department of Natural Resources the ability to implement its own management plan."
Klobuchar sent another letter to the Department of the Interior on Dec. 7, 2010, this time upping the ante.
"I write again to urge you to expedite the delisting of the gray wolf in the Great Lakes and inform you that I will be introducing legislation to help speed-up this process... I am confident that the ESA has served its purpose and that the Minnesota DNR is ready and capable of ensuring the continued viability of the western Great Lakes wolf."
Next steps
Tyler said he hopes the court will approve he and Lueck's claim for summary judgment on Jan. 20.
"If the courts were to dismiss our action, it's going to lead to more delay, more depredation and more taxpayers money spent in depredation claims," said Tyler.
Swanson's office has argued Tyler's case needs to be heard and the federal government needs to follow the Endangered Species Act.
"The recovery of the wolf population in Minnesota has been accompanied by an increase in wolf-human conflicts... a delayed delisting has the potential to harm the wolf population because of this growing frustration by the public and the possibility of more wolves being killed illegally as a result...the remedies plaintiffs seek in their complaint are likely to bring this years-long process to its inevitable conclusion without any further damage to the state and its citizens as a result of the services's failure to properly administer the statute," Swanson wrote.
Tyler and Lueck proposed court order will require the FWS to remove the gray wolf from the threatened and endangered species list under the Endangered Species Act as soon as reasonably possible but not later than 120 days following the court's order.
"Our case is on four square with the facts and the law," said Tyler. "The wolf depredation on cattle and domestic animals continues and we are hopeful the court will order the federal government to delist the species in Minnesota, Wisconsin and Michigan."
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