ELR Citation: ELR 20391
No(s). s. 84-5042, -5134 (8th Cir. Feb 19, 1985)

The court holds that the Endangered Species Act (ESA) prohibits the Secretary of Interior from issuing regulations permitting the sport trapping of eastern timber wolves, a threatened species, unless the Secretary determines that population pressures within the wolves' ecosystem cannot otherwise be controlled. The court first rules that the language of the ESA grants the Secretary discretion to allow the taking of threatened species only when necessary to alleviate overpopulation. The Secretary's authority to regulate threatened species, provided in §4(d), is limited by the requirement that such regulations provide for the "conservation" of threatened species. When read in conjunction with the definition of "conservation" in §3(3), §4(d) authorizes the Secretary to allow the taking of threatened species only when population pressures cannot be otherwise relieved. The court rejects the argument that its interpretation eliminates the distinction between threatened and endangered species. When the relevant provisions are read in light of their statutorily defined terms, two levels of protection remain. In addition, both prior and subsequent legislative history support these conclusions. Although the subsequent addition of §10(j) to the ESA may authorize the taking of experimental populations of threatened species, it does not authorize the sport taking of threatened species.

The court next holds that the district court did not apply the proper standard of review when it found that regulations expanding the predation control program were illegal because they were made without agency explanation. Since the Fish and Wildlife Service in fact made statements purporting to explain the regulations, the adequacy of the statements should have been tested under the arbitrary and capricious standard.

Finally, the court holds that the district court did not abuse its discretion in awarding plaintiffs attorneys fees, including a 30 percent upward adjustment to the lodestar figures, pursuant to ESA §11(g)(4).

A dissent reads the "plain language" of the statute and concludes that the Secretary's authority to allow the taking to threatened species is not limited to alleviating overpopulation, but is limited only by the requirement that the taking must further the effort to bring the threatened species to the point at which it can survive without the protections of the ESA. The dissent would also substantially reduce or eliminate the attorney fees award.

[The opinion below appears at 14 ELR 20269.]

Counsel are listed at 14 ELR 20269.

Before ROSS, McMILLIAN, and JOHN R. GIBSON, Circuit Judges.