Wyoming v. United States Department of Interior

                                                       F I L E D
                                                 United States Court of Appeals
                                                         Tenth Circuit
                        PUBLISH
                                                        April 3, 2006
            UNITED STATES COURT OF APPEALS          Elisabeth A. Shumaker
                                                        Clerk of Court
                     TENTH CIRCUIT



STATE OF WYOMING and WYOMING
WOOL GROWERS, WYOMING STOCK
GROWERS ASSOCIATION; WYOMING
FARM BUREAU FEDERATION;
WYOMING ASSOCIATION OF
CONSERVATION DISTRICTS; ROCKY
MOUNTAIN FARMERS UNION;
WYOMING COUNTY COMMISSIONERS
ASSOCIATION; BOARD OF COUNTY
COMMISSIONERS OF THE COUNTY OF
CAMPBELL; BOARD OF COUNTY
COMMISSIONERS OF THE COUNTY OF
SUBLETTE; BOARD OF COUNTY
COMMISSIONERS OF THE COUNTY OF    Nos. 05-8026, 05-8027, 05-8035
WASHAKIE; WYOMING ASSOCIATION
OF COUNTY PREDATORY ANIMAL
BOARDS; FREMONT COUNTY
PREDATORY ANIMAL BOARD; TETON
COUNTY PREDATORY ANIMAL
BOARD; CONVERSE COUNTY
PREDATORY ANIMAL BOARD;
WYOMING OUTFITTERS AND GUIDES
ASSOCIATION; GREEN RIVER VALLEY
CATTLEMEN'S ASSOCIATION; UPPER
GREEN RIVER CATTLE ASSOCIATION;
WYOMING BUSINESS ALLIANCE;
CODY COUNTY OUTFITTERS AND
GUIDES ASSOCIATION; FOUNDATION
FOR NORTH AMERICAN WILD SHEEP;
JACKSON HOLE OUTFITTERS AND
GUIDES; ROCK SPRINGS DISTRICT 4
GRAZING BOARD; SPORTSMEN FOR
FISH & WILDLIFE, WYOMING;
SPORTSMEN FOR FISH & WILDLIFE,
PARK COUNTY; SPORTSMEN FOR FISH
& WILDLIFE, TETON COUNTY;
SPORTSMEN FOR FISH & WILDLIFE,
LINCOLN COUNTY; SPORTSMEN FOR
FISH & WILDLIFE, UTAH,

            Plaintiffs - Appellants,

      and

TIMOTHY J. MORRISON; MARIE A.
FONTAINE; TIM A. FRENCH, in their
official capacity as the Board of County
Commissioners of Park County, State of
Wyoming,

            Plaintiffs - Intervenors -
            Appellants,

      v.

UNITED STATES DEPARTMENT OF
INTERIOR; UNITED STATES FISH AND
WILDLIFE SERVICE; GALE NORTON, in
her capacity as the Secretary of the United
States Department of Interior; STEVEN A.
WILLIAMS, in his official capacity as the
Director of the United States Fish &
Wildlife Service;

            Defendants - Appellees,

GREATER YELLOWSTONE COALITION;
NATIONAL WILDLIFE FEDERATION;
JACKSON HOLE CONSERVATION
ALLIANCE; PREDATOR
CONSERVATION ALLIANCE;
WYOMING OUTDOOR COUNCIL;


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 SIERRA CLUB; NATURAL RESOURCES
 DEFENSE COUNCIL,

             Defendants - Intervenors -
             Appellees.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF WYOMING
                    (D. Ct. No. 04-CV-0123-J)


Jay Arthur Jerde, Deputy Attorney General (Patrick J. Crank, Attorney General,
with him on the briefs), Office of the Attorney General for the State of Wyoming,
appearing for Appellant State of Wyoming.

Harriett M. Hageman (Kara Brighton, with her on the briefs), Hageman &
Brighton, P.C., Cheyenne, Wyoming, appearing for Appellant Wyoming Wool
Growers, et al.

Bryan A. Skoric, Park County Attorney, James Fred Davis, Deputy Park County
Attorney, Cody, Wyoming, on the briefs for Plaintiff-Intervenor-Appellant Park
County.

David C. Shilton, Attorney, United States Department of Justice (Kelly A.
Johnson, Acting Assistant Attorney General, Environmental and Natural
Resources Division; Kristen L. Gustafson, Jimmy A. Rodriguez, and M. Alice
Thurston, Attorneys, United States Department of Justice; and David Gayer and
Margot Zallen, Office of the Solicitor, United States Department of Justice, with
him on the brief), appearing for the Federal Appellees.

Douglas L. Honnold, Abigail Dillen, and Timothy J. Preso, EARTHJUSTICE,
Bozeman, Montana, on the briefs for Intervenor-Appellees Sierra Club and
Natural Resources Defense Council.

Jack R. Tuholske, Tuholske Law Office, P.C., Missoula, Montana, and Thomas
M. France, Montana Wildlife Federation, Missoula, Montana, on the briefs for
Defendants-Intervenors Greater Yellowstone Coalition, National Wildlife
Federation, and Predator Conservation Alliance.

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Before TACHA, Chief Circuit Judge, EBEL, Circuit Judge, and CASSELL,
District Judge. †


PER CURIAM.


      The State of Wyoming filed this suit in the District of Wyoming against

Gale A. Norton in her official capacity as the Secretary of the United States

Department of the Interior (“DOI”) 1 and Steven A. Williams in his official

capacity as the Director of the United States Fish and Wildlife Service (“FWS”). 2

The District Court consolidated this case with a similar suit brought against the

DOI and the FWS by a group of organizations known collectively as the Wolf

Coalition. The District Court also granted several motions to intervene submitted

by parties on both sides of this matter. The facts of this case are fully set forth in

the District Court’s opinion. See Wyoming v. U.S. Dept. of Interior, 360 F. Supp.

2d 1214, 1245 (D. Wyo. 2005).

      The Plaintiffs alleged various constitutional claims under Article IV’s



      †
       The Honorable Paul G. Cassell, District Judge of the United States District
Court for the District of Utah, sitting by designation.
      1
       Secretary Norton resigned from the DOI in March 2006. President Bush
recently nominated Governor Dirk Kempthorne to succeed her as Secretary. His
nomination is currently awaiting confirmation in the Senate.
      2
       Director Steven A. Williams resigned from the FWS in March 2005 and
was replaced by H. Dale Hall in October 2005.

                                          -4-
Guarantee Clause and the Tenth Amendment, as well as violations of the

Endangered Species Act, 16 U.S.C. § 1531 et seq., the National Environmental

Policy Act of 1969 (“NEPA”), 42 U.S.C. § 4321 et seq., and the Administrative

Procedure Act (“APA”), 5 U.S.C. § 551 et seq., in connection with the DOI’s and

the FWS’s alleged failure to manage and control the gray wolf population in

Wyoming and their failure to initiate delisting of the gray wolf as an endangered

species. After reviewing the briefs and the administrative record, and after

hearing oral argument, the District Court issued a thorough Memorandum Opinion

and Order denying relief on all causes of action and dismissing the case.

Wyoming, 360 F. Supp. 2d at 1245.

      With respect to the statutory claims, the District Court concluded that the

Plaintiffs neither identified a “final agency action” nor demonstrated that the

Defendants “unlawfully withheld or unreasonably delayed” statutorily required

action necessary for judicial review under the APA. See Wyoming, 360 F. Supp.

2d at 1231–34, 1236 (citing Colo. Farm Bureau Fed’n v. U.S. Forest Serv., 220

F.3d 1171 (10th Cir.2000) and Norton v. S. Utah Wilderness Alliance, 542 U.S.

55 (2004)). Accordingly, the District Court dismissed the statutory causes of

action. With respect to the Plaintiffs’ constitutional claims, the District Court

concluded that the Defendants’ actions “are consistent with the powers delegated

to them by Congress through the ESA via the Commerce Clause, and these actions


                                          -5-
do not invade any province of Wyoming’s state sovereignty reserved by the Tenth

Amendment.” Id. at 1244. Accordingly, the District Court denied relief on these

claims.

      We take jurisdiction under 28 U.S.C. § 1291 and AFFIRM the judgment of

the District Court for substantially the same reasons given in its opinion. See

Wyoming, 360 F. Supp. 2d at 1214–36, 1238–45. Because we hold, however, that

the Plaintiffs have failed to identify a final agency action which is necessary to

satisfy the statutory standing requirements under the APA, see Utah v. Babbit,

137 F.3d 1193, 1203 (10th Cir. 1998) (stating that without agency action

plaintiffs have no standing to sue under the APA), unlike the District Court, we

express no opinion on the merits of the Plaintiffs’ ESA and NEPA claims, see

Wyoming, 360 F. Supp. 2d at 1236–38 (holding in the alternative that Plaintiffs’

NEPA claim fails on the merits). Finally, we DENY all outstanding motions.




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