ELR Citation: ELR 20444
No(s). 99-8089 (10th Cir. Feb 7, 2002)

The court affirms in part and reverses in part the dismissal of the state of Wyoming's claim against the U.S. Fish and Wildlife Service (FWS) for interfering with the state's "sovereign right" to manage wildlife within its borders, including its right to vaccinate elk from brucellosis in the National Elk Refuge (NER). The state argued that FWS acted outside its "statutory powers" under the National Wildlife Refuge System Improvement Act (NWRSIA), as constrained by the Tenth Amendment, when it refused to permit the state to vaccinate elk on the NER to protect its own wildlife and domestic livestock. The court first holds that the doctrine of sovereign immunity barred the state's Tenth Amendment complaint. The Tenth Amendment does not reserve to Wyoming the right to manage wildlife or, more specifically, vaccinate elk on the NER, regardless of the circumstances. The court next holds that FWS' decision to refuse to permit the state to vaccinate elk on the NER based on efficacy and biosafety concerns was not, in itself, ultra vires. The state argued that FWS acted beyond its authority or ultra vires in refusing to permit it to vaccinate elk on the NER based on a saving clause in the NWRSIA that reserves to the states the right to manage wildlife on refuge lands within their borders. However, Congress undoubtedly intended a preeminentfederal role for FWS in the care and management of the National Wildlife Refuge System, and the authority of a government agency to make a decision or resolve a conflict does not disappear simply because that decision or resolution might be erroneous. The district court, therefore, properly dismissed this claim. Nevertheless, the court holds that if, as the state suggests, the vaccine is a safe and effective means of containing brucellosis in free-ranging elk, and FWS has no viable alternative means of reducing the high rate of brucellosis-infected elk on the NER, FWS' decision to deny the state's request to vaccinate elk may very well be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. The district court, therefore, erred in dismissing this claim for failure to state a claim upon which relief may be granted.

Counsel for Plaintiffs
Lynda G. Cook, Ass't Attorney General
Attorney General's Office
123 State Capitol, Cheyenne WY 82002
(307) 777-7841

Counsel for Defendants
Lisa E. Jones
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Baldock, J. Before Lucero and Politz,^* JJ.

* The Honorable Henry A. Politz, United States Senior Circuit Judge for the Fifth Circuit Court of Appeals, sitting by designation.