Urbigkit v. Babbitt

Louis R. Cohen, James R. Wrathall, Matthew A. Brill, and Susan A. MacIntyre, of Wilmer, Cutler & Pickering, and Elizabeth Fayad, of Counsel, National Parks and Conservation Association, Washington, D.C., filed an amicus curiae brief on behalf of National Parks and Conservation Association, in support of the Department of the Interior.

Michael J. Bean, Environmental Defense Fund, Washington, D.C., and James B. Martin, Boulder, Colorado, Environmental Defense Fund, filed an amici curiae brief on behalf of Environmental Defense Fund, World Wildlife Fund, Wildlife Conservation Society, Izaak Walton League of America, Idaho Conservation League, Wolf Recovery Foundation, and Center for Marine Conservation.

Herman Kaufman, Old Greenwich, Connecticut, filed an amicus curiae brief on behalf of Friends of Animals, Inc.

David J. Cummings, Lapwai, Idaho, filed an amicus curiae brief on behalf of Nez Perce Tribe.

James C. Hill, Washington, D.C., filed an amicus curiae brief, pro se, in support of Plaintiffs-Appellees.

Before BRORBY, HOLLOWAY and HENRY, Circuit Judges.

BRORBY, Circuit Judge.

These consolidated appeals stem from three separate challenges to the Department of Interior's ("Department") final rules governing the reintroduction of a nonessential experimental population of gray wolves in Yellowstone National Park ("Yellowstone") and central Idaho. The district court consolidated the challenges and struck down the wolf reintroduction rules, concluding they (1) are contrary to Congress' clear intent under section 10(j) of the Endangered Species Act, 16 U.S.C. 1539(j), to prevent lessening the protection afforded to naturally occurring, individual members of the same species; (2) are contrary to the Department's own regulations extending Endangered Species Act protections to all individual animals within an area where experimental and nonexperimental populations may overlap; and (3) conflict with section 4 of the Endangered Species Act, 16 U.S.C. 1533, by operating as a de facto "delisting" of naturally occurring wolves. Wyoming Farm Bureau Fed'n v. Babbitt, 987 F. Supp. 1349, 1372-76 (D. Wyo. 1997). The district court ordered the reintroduced non-native wolves and their offspring removed from the identified experimental population areas, but stayed its own judgment pending this appeal. Id. at 1376. Discerning no conflict between the challenged experimental population rules and the Endangered Species Act, we reverse the district court's order and judgment.

Detailed facts underlying this appeal are set forth in Wyoming Farm Bureau Fed'n v. Babbitt, 987 F. Supp. 1349 (D. Wyo. 1997); hence, we provide only a summary of salient facts.

The Secretary of Interior ("Secretary") listed the Northern Rocky Mountain Wolf, an alleged subspecies of the gray wolf, as an endangered species under the Endangered Species Act of 1973. 43 Fed. Reg. 9607 (March 9, 1978) ("Reclassification of the Gray Wolf in the United States and Mexico, with Determination of Critical Habitat in Michigan and Minnesota"). In 1978, the Secretary listed the entire gray wolf species as endangered in the lower forty-eight states, except Minnesota.1 Id. at 9610, 9612. In 1980, a team organized by the Department of Interior completed its Northern Rocky Mountain Wolf Recovery Plan ("Recovery Plan"), pursuant to the Endangered Species Act. The Department updated the Recovery Plan in 1987 to recommend the introduction of at least ten breeding pairs of wolves for three consecutive years in each of three identified recovery areas (Yellowstone National Park, central Idaho and northwestern Montana).

Based on the 1987 recommendation, and at Congress' direction, the Fish and Wildlife Service, in cooperation with the National Park Service and the United States Forest Service ("Forest Service"), prepared an environmental impact statement in accordance with the National Environmental Policy Act, 43 U.S.C. 4332(2)(C). The final environmental impact statement analyzed the environmental effects of five wolf recovery alternatives. The proposed action alternative the Fish and Wildlife Service adopted called for the annual reintroduction of fifteen wolves in two nonessential experimental population areas Yellowstone National Park and central Idaho beginning in 1994. Section 10(j) of the Endangered Species Act, 16 U.S.C. 1539(j), expressly authorizes the establishment of such nonessential experimental populations.

In June 1994, Secretary Bruce Babbitt adopted the proposed action alternative subject to certain conditions intended to "minimize or avoid the environmental impacts and public concerns identified during the environmental review process." One condition was the promulgation of nonessential experimental population rules to implement a wolf management program under section 10(j). The Department published its final experimental population rules in November 1994. 59 Fed. Reg. 60252 (Nov. 22, 1994). The Recovery Plan and final rules prescribe the release of 90-150 wolves from Canada into designated areas of Yellowstone and central Idaho over a three- to five-year period, id. at 60254-255, 60266, 60269, notwithstanding the Department's acknowledgment (1) a colony of naturally occurring wolves exists in Montana which, as the number of wolves increases, eventually will recolonize areas of Yellowstone and Idaho; and (2) lone wolves have been confirmed to exist in or near the designated experimental population areas in Yellowstone and Idaho. The final experimental population rules expressly authorize persons coming into contact with wolves to take actions otherwise prohibited under the Endangered Species Act. For example, a livestock producer can "take" any wolf caught in the act of killing, wounding or biting livestock on his land so long as the incident is reported within twenty-four hours. Id. at 60264, 60279. The rules also provide a framework within which the Fish and Wildlife Service can manage "problem" wolves. Id. at 60265, 60279.

Appearing as Defendants/Appellants in this matter are the various governmental departments, agencies and their officials responsible for wolf and wolf habitat management, including the Department of Interior, its agencies the Fish and Wildlife Service and National Park Service, and the Department of Agriculture and its agency the Forest Service (hereafter the "Agencies"). On appeal, the National Audubon Society, which originally appeared as a plaintiff, realigns itself and joins in the Agencies' briefs. The National Wildlife Federation, Defenders of Wildlife, Wyoming Wildlife Federation, Idaho Wildlife Federation, and the Wolf Education and Research Center appear as Intervenors on behalf of the Agencies. Collectively, these parties advocate the legal validity of the wolf reintroduction rules, and any reference to the Agencies' arguments or contentions generally reflects those of the Intervenors.

Plaintiffs/Appellees include: the Wyoming Farm Bureau Federation, the Montana Farm Bureau Federation, the Idaho Farm Bureau Federation, the American Farm Bureau Federation, James R. and Cat D. Urbigkit, the Predator Project, Sinapu, and the Gray Wolf Committee. The Urbigkits and the Predator Project also raise issues on cross-appeal. Collectively, these parties represent the educational, economic, and social interests of individuals who reside, recreate, farm, and/or ranch in or near the designated experimental population areas. All participated in the administrative proceedings related to the wolf recovery/reintroduction program. For different reasons, all dispute the legal validity of the wolf reintroduction rules.

The following individuals and entities filed amicus briefs: the Environmental Defense Fund, World Wildlife Fund, Wildlife Conservation Society, Izaak Walton League, Idaho Conservation League, Wolf Recovery Foundation, and the Center for Marine Conservation (collectively referred to as "Environmental Defense Fund and others"); the National Parks and Conservation Association; James C. Hill; the Friends of Animals, Inc.; and the Nez Perce Tribe. With the exception of Mr. Hill and the Friends of Animals, Inc., all amicus parties support the Agencies' position. The Friends of Animals, Inc. and Mr. Hill assert issues and arguments against the wolf recovery program not previously raised or addressed by the named parties or the district court.2

The parties filed a number of preliminary motions, which were referred to this panel for resolution. We conclude none is dispositive and rule as follows: All motions to dismiss are denied. The Agencies' motion to file missing administrative record documents is granted. The National Audubon Society's motions to dismiss, realign, and join defendants' and amici briefs are granted. The Wyoming Farm Bureau's Second Motion to Strike is denied. The Farm Bureaus' motion to expedite is denied as moot.

At the outset of litigation, the Defendant Agencies challenged the Audubon Society's and the Urbigkits' standing to bring any claims. The Agencies also challenged the Farm Bureaus' standing to assert their Endangered Species Act and National Environmental Policy Act claims. The district court held both the Audubon Society and the Urbigkits have standing. Wyoming Farm Bureau Fed'n, 987 F. Supp. at 1361. The court further held the Farm Bureaus lack standing to assert a National Environmental Policy Act claim. Id. The court determined, sua sponte, that Mountain States Legal Foundation lacks standing to pursue its action altogether. Id. at 1355 n.10. Mountain States Legal Foundation did not submit briefs on appeal. The remaining parties do not raise the standing issue in their briefs. Accordingly, we do not address this issue, and the district court's rulings pertaining to standing remain unaffected.

The Agencies unsuccessfully sought dismissal of the first two counts of the Farm Bureaus' complaint for failure to provide sufficiently specific notice pursuant to the Endangered Species Act, 16 U.S.C. 1540(g). Id. at 1362-63. They do not challenge the district court's ruling on appeal; therefore, we do not address it and the district court's ruling on this issue stands.

The Farm Bureaus' contention the Agencies did not afford them certain Endangered Species Act procedural rights provided under 50 C.F.R. 17.81(d) was similarly unsuccessful in district court. Id. at 1365-66. Because the Farm Bureaus do not pursue this claim on appeal, the district court's ruling stands.

The crux of this case, and hence this opinion, is the validity of the final rules governing the introduction of a nonessential experimental population of gray wolves in the entirety of Yellowstone and in central Idaho. The district court struck down the challenged rules as violative of section 4(f) and section 10(j) of the Endangered Species Act, 16 U.S.C. 1533(f), 1539(j). Id. at 1373-76. However, the district court found no violation of the National Environmental Policy Act. Id. at 1369. We afford the district court's decision no particular deference, but rather, review the rules and administrative record independently. See City of Albuquerque v. Browner, 97 F.3d 415, 424 (10th Cir. 1996), cert. denied, 522 U.S. 965 (1997); Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1580 (10th Cir. 1994).

Our review of the rules and record is governed by the Administrative Procedure Act, 5 U.S.C. 706. Essentially, we must determine whether the Agencies: (1) acted within the scope of their authority, (2) complied with prescribed procedures, and (3) took action that was neither arbitrary and capricious, nor an abuse of discretion. Olenhouse, 42 F.3d at 1574. Within this context, we will set aside the Agencies' factual determinations only if they are unsupported by substantial evidence. "The substantial-evidence standard does not allow a court to displace the [Agencies'] choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo." Trimmer v. United States Dep't of Labor, 174 F.3d 1098, 1102 (10th Cir. 1999) (quotation marks and citations omitted).

We review matters of law de novo. Id. at 1102. When reviewing the Agencies' interpretation and implementation of the Endangered Species Act, we give strict effect to the unambiguous intent of Congress if Congress has clearly spoken to the issue before us. However, if Congress is silent on the issue and has delegated authority over the subject matter to the Agencies, we defer to the Agencies' construction, unless, in context of the Act, the Department's construction is unreasonable or impermissible. Hoyl v. Babbitt, 129 F.3d 1377, 1385 (10th Cir. 1997) (citing Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 845 (1984)). "[W]e must consider the language of the relevant statutory scheme as illuminated by 'the provisions of the whole law, and ... its object and policy.'" Arco Oil & Gas Co. v. EPA, 14 F.3d 1431 (10th Cir. 1993) (quoting Aulston v. United States, 915 F.2d 584, 589 (10th Cir. 1990), cert. denied, 500 U.S. 916 (1991)).

Congress enacted the Endangered Species Act in 1973 to "provide for the conservation, protection, restoration, and propagation of species of fish, wildlife, and plants facing extinction." S. Rep. No. 93-307, at 1 (1973), reprinted in 1982 U.S.C.C.A.N. 2989 (emphasis added); see also 16 U.S.C. 1531(b). Toward that end, the Endangered Species Act authorizes the Secretary of the Interior to list domestic or foreign species as endangered or threatened. 16 U.S.C. 1533(a) - (b). Once a species is so listed, it is afforded certain protections, and federal agencies assume special obligations to conserve, recover and protect that species. For example, section 4(f), 16 U.S.C. 1533(f), directs the Secretary to develop and implement recovery plans for the "conservation and survival" of listed species "unless he finds that such a plan will not promote the conservation of the species." In addition, section 7(a)(1) authorizes the Secretary to "live" trap and "transplant" (reintroduce) rare species, if necessary, to bring an endangered or threatened species to the point at which the protective measures of the Endangered Species Act are no longer necessary. See 16 U.S.C. 1536(a)(1) and 1532(3) (definition of "conservation").

Congress added section 10(j) to the Endangered Species Act in 1982 to address the Fish and Wildlife Service's and other affected agencies' frustration over political opposition to reintroduction efforts perceived to conflict with human activity. Although the Secretary already had authority to conserve a species by introducing it in areas outside its current range, Congress hoped the provisions of section 10(j) would mitigate industry's fears experimental populations would halt development projects, and, with the clarification of the legal responsibilities incumbent with the experimental populations, actually encourage private parties to host such populations on their lands. H.R. Rep. No. 97-567, at 8 (1982), reprinted in 1982 U.S.C.C.A.N. 2807, 2808, 2817; see also 16 U.S.C. 1539(j).

Section 10(j), 16 U.S.C. 1539(j), provides:

(1) For purposes of this subsection, the term "experimental population" means any population (including any offspring arising solely therefrom) authorized by the Secretary for release under paragraph (2), but only when, and at such times as, the population is wholly separate geographically from nonexperimental populations of the same species.

(2)(A) The Secretary may authorize the release (and the related transportation) of any population (including eggs, propagules, or individuals) of an endangered species or a threatened species outside the current range of such species if the Secretary determines that such release will further the conservation of such species.

(B) Before authorizing the release of any population under subparagraph (A), the Secretary shall by regulation identify the population and determine, on the basis of the best available information, whether or not such population is essential to the continued existence of an endangered species or a threatened species.

(C) For the purposes of this chapter, each member of an experimental population shall be treated as a threatened species; except that

(i) solely for purposes of [section 7, 16 U.S.C. 1536] (other than subsection (a)(1) thereof), an experimental population determined under subparagraph (B) to be not essential to the continued existence of a species shall be treated, except when it occurs in an area within the National Wildlife Refuge System or the National Park System, as a species proposed to be listed under [section 4, 16 U.S.C. 1533]; and

(ii) critical habitat shall not be designated under this chapter for any experimental population determined under subparagraph (B) to be not essential to the continued existence of a species.

(3) The Secretary, with respect to populations of endangered species or threatened species that the Secretary authorized, before October 13, 1982 [the date of the enactment of this subsection], for release in geographical areas separate from the other populations of such species, shall determine by regulation which of such populations are an experimental population for the purposes of this subsection and whether or not each is essential to the continued existence of an endangered species or a threatened species.

(Emphasis added).

As the language of this provision makes clear, Congress contemplated the Secretary would promulgate special rules to identify each experimental population. As Congress explained:

The purpose of requiring the Secretary to proceed by regulation, apart from ensuring that he will receive the benefit of public comment on such determinations, is to provide a vehicle for the development of special regulations for each experimental population that will address the particular needs of that population. Among the regulations that must be promulgated are regulations to provide for the identification of experimental populations. Such regulations may identify a population on the basis of location, migration pattern, or any other criteria that would provide notice as to which populations of endangered or threatened species are experimental.

H.R. Conf. Rep. No. 97-835 (1982), reprinted in 1982 U.S.C.C.A.N. 2860, 2875. In other words, Congress purposely designed section 10(j) to provide the Secretary flexibility and discretion in managing the reintroduction of endangered species. By regulation, the Secretary can identify experimental populations, determine whether such populations are essential or nonessential, and, consistent with that determination, provide control mechanisms (i.e., controlled takings) where the Act would not otherwise permit the exercise of such control measures against listed species.

The Agencies do not dispute individual wolves may leave (and, from time to time, have left) Canada and Montana and enter the experimental population areas in central Idaho and Yellowstone. The Farm Bureaus and the Urbigkits argue, and the district court agreed, that this possibility establishes an overlap of wolf "populations," or the overlap of the experimental areas and the "current range" of naturally occurring wolf populations in contravention of the requirement in section 10(j)(1) that experimental populations of an endangered species must be wholly separate geographically from nonexperimental populations of the same species. We do not accept that contention.

Plaintiffs base their argument on a single piece of legislative history they claim demonstrates Congress never intended section 10(j) to lessen the Endangered Species Act protections afforded individual members of a natural population of a listed species, or to create law enforcement problems. See Wyoming Farm Bureau Fed'n, 987 F. Supp. at 1372-73. The 1982 House Report they rely on states the House Committee:

carefully considered how to treat introduced populations that overlap, in whole or in part, natural populations of the same species. To protect natural populations and to avoid potentially complicated problems of law enforcement, the definition [of "experimental population"] is limited to those introduced populations that are wholly separate geographically from nonexperimental populations of the same species. Thus, for example, in the case of the introduction of individuals of a listed fish species into a portion of a stream where the same species already occurs, the introduced specimens would not be treated as an "experimental population" separate from the non-introduced specimens.... If an introduced population overlaps with natural populations of the same species during a portion of the year, but is wholly separate at other times, the introduced population is to be treated as an experimental population at such time as it is wholly separate. The Committee intends, however, that such a population be treated as experimental only when the times of geographic separation are reasonably predictable and not when separation occurs as a result of random and unpredictable events.

H.R. Rep. No. 97-567, at 33 (1982), reprinted in 1982 U.S.C.C.A.N. 2807, 2833. According to the Farm Bureaus, this passage "specifically prohibits the overlap of 'individuals' and/or 'specimens' of a species, not just the overlap of entire populations of a species," and demonstrates Congress' intent that an "experimental population" should exist "only when there is no possibility that members of the 'experimental population' could overlap with members of naturally occurring populations." They claim the Agencies erroneously fail to recognize that populations are necessarily made up of individuals; thus, the wolf reintroduction rules reflect an impermissible construction of section 10(j).

The Farm Bureaus further argue the reintroduction program creates law enforcement problems by characterizing naturally occurring individual wolves that wander into the experimental population as "experimental" rather than "endangered." According to the Farm Bureaus, naturally occurring individual wolves are entitled to full Endangered Species Act protection regardless of location, and because it is virtually impossible to differentiate between a naturally occurring wolf and a reintroduced wolf, officials will not be able to enforce those protections as Congress intended.

We begin our analysis by reviewing the statute itself, the extent to which Congress expressly defined relevant terms or otherwise clearly spoke to this issue, and conversely, the degree to which Congress delegated authority over the matter to the Agencies, in particular the Department of Interior. See Chevron U.S.A., 467 U.S. at 842-43; see also United States v. McKittrick, 142 F.3d 1170, 1173 (9th Cir. 1998), cert. denied, 119 S. Ct. 806 (1999). As the district court recognized, the Endangered Species Act does not define the relevant terms or otherwise address the precise question at issue whether the phrase "wholly separate geographically from nonexperimental populations" means that a reintroduced population of animals must be separate from every naturally occurring individual animal. Wyoming Farm Bureau Fed'n, 987 F. Supp. at 1371-74. Instead, as the statutory language and legislative history make clear, Congress deliberately left the resolution of this type management/conservation issue to the Department. See McKittrick, 142 F.3d at 1174 ("Congress' specific purpose in enacting section 10(j) was to give greater flexibility to the Secretary. Thus, each experimental population has its own set of special rules so that the Secretary has more managerial discretion. This flexibility allows the Secretary to better conserve and recover endangered species." (Quotation marks and citations omitted.)); see also H.R. Rep. No. 97-567 at 33 (1982), reprinted in 1982 U.S.C.C.A.N. 2807, 2833. We therefore defer to the Department's interpretation of the phrase "wholly separate geographically from nonexperimental populations," so long as its interpretation does not conflict with the plain language of the Endangered Species Act. See Hoyl, 129 F.3d at 1385. We perceive no conflict.

The Department defines "population" as a potentially self-sustaining group "in common spatial arrangement,"3 and thus determined a "geographic separation" is any area outside the area in which a particular population sustains itself. See Wyoming Farm Bureau Fed'n, 987 F. Supp. at 1373; 59 Fed. Reg. at 60256. These definitions preclude the possibility of population overlap as a result of the presence of individual dispersing wolves by definition lone dispersers do not constitute a population or even part of a population, since they are not in "common spatial arrangement" sufficient to interbreed with other members of a population. Moreover, since it is highly unlikely a lone wolf will encounter another solitary wolf of the opposite sex and reproduce for two years running, the populations left behind by the lone wolves do not expand simply because they travel away.

This interpretation of the "geographic separation" requirement of section 10(j) is consistent with the language and objectives of the Endangered Species Act as a whole. Congress defined "species," as used throughout the Act, to represent subspecies or "any distinct population segment" of an interbreeding species. 16 U.S.C. 1532(16). This reference to species vis vis populations or population segments, as opposed to individual specimens, is repeated throughout the text of section 10(j), thus reflecting the paramount objective of the Endangered Species Act to conserve and recover species, not just individual animals. See McKittrick, 142 F.3d at 1174 (citing H.R. Conf. Rep. No. 97-835 at 30 (1982), reprinted in 1982 U.S.C.C.A.N. 2860, 2871). This broader objective is further evidenced by the well-established fact individual animals can and do lose Endangered Species Act protection simply by moving about the landscape.4 Moreover, we find nothing in the Endangered Species Act that precludes steps to conserve a species in order to protect isolated individuals.5 Nor are we convinced the challenged rules present complicated law enforcement obstacles. The Department specifically determined "the experimental population area does not currently support any reproducing pairs of wolves;"6 thus, the legal protection afforded any particular wolf is clearly known, depending entirely on where the wolf is, not where it might once have been. For these reasons, we hold the Department's interpretation of the "geographic separation" provision reflects the goals of the Endangered Species Act "to protect natural populations" and "to avoid potentially complicated problems of law enforcement," H. Rep. No. 97-567, 97th Cong., 2d Sess. at 33 (1982), reprinted in 1982 U.S.C.C.A.N. at 2833, and is well within the scope of agency discretion granted by Congress and licensed by the Supreme Court. See McKittrick, 142 F.3d at 1174-75.

Plaintiffs' argument the Agencies failed to release the Canadian wolves outside the "current range" of naturally occurring wolves is similarly flawed since Plaintiffs rigidly define "current range" as it is used in section 10(j) to be that territory occupied by an individual wolf. The plain language of the statute does not support their interpretation. Although the statute does not define "current range," section 10(j)(2)(A) requires that an "experimental population" must be established "outside the current range of such species." 16 U.S.C. 1539(j)(2)(A) (emphasis added). As discussed above, Congress defined "species," consistent with its broad conservation and recovery goals, to constitute distinct, interbreeding population segments or subspecies, not individual animals. By definition, then, an individual animal does not a species, population or population segment make. Therefore, the Department, exercising its discretion under section 10(j), reasonably interpreted the phrase "current range" to be the combined scope of territories defended by the breeding pairs of an identifiable wolf pack or population.

The district court determined, at the behest of the Farm Bureaus and the Predator Project, that the Department must accord full endangered species protections to any naturally occurring wolf found within the experimental areas.7 Accordingly, the district court held the final reintroduction rules, which provide that "[a]ll wolves found in the wild within the boundaries of [the experimental areas] after the first releases will be considered nonessential experimental animals,"8 (1) constitute a "de facto 'delisting'" of naturally occurring lone dispersers, and (2) illegally deny full Endangered Species Act protections to offspring of naturally dispersing wolves, and to offspring of naturally dispersing and introduced wolves, within the designated experimental areas. Wyoming Farm Bureau Fed'n, 987 F. Supp. at 1374-76. We believe this holding unnecessarily limits the administrative discretion and flexibility Congress intentionally incorporated into section 10(j), ignores biological reality, and misconstrues the larger purpose of the Endangered Species Act.

Pursuant to section 10(j)(2)(B), 16 U.S.C. 1539(j)(2)(B), the Secretary must, prior to authorizing a release, identify by regulation the population to be deemed experimental. As discussed above, this statutory requirement confers broad discretion to the Secretary to manage populations to better conserve and recover endangered species. Based on the facts (1) there were no reproducing wolf pairs and no pack activity within the designated experimental areas, (2) wolves can and do roam for hundreds of miles, and (3) it would be virtually impossible to preclude naturally occurring individual gray wolves from intermingling with the experimental population, 59 Fed. Reg. at 60256, 60261, the Secretary intentionally identified the experimental population as all wolves found within the experimental areas, including imported wolves and any lone dispersers and their offspring. The Department determined it could best manage the wolf reintroduction program to achieve species recovery in this manner. Id. at 60261. We find nothing in the Act that invalidates this approach by requiring the protection of individuals to the exclusion or detriment of overall species recovery, or otherwise limiting the Department's flexibility and discretion to define and manage an experimental population pursuant to section 10(j).

In particular, we do not read section 10(j)(1) to restrict the Secretary's authority to identify an experimental population solely on the basis of animal origin as opposed to geographic location. While the language of section 10(j)(1), read in isolation, might suggest an experimental population can only be comprised of those particular animals physically relocated (and any offspring arising solely therefrom), such a narrow interpretation is not supported by the provision, or the Endangered Species Act, read as a whole. Indeed, section 10(j)(1) expressly references the Secretary's broad discretion to identify and authorize the release of an experimental population under section 10(j)(2). Moreover, as illustrated above, when drafting section 10(j) Congress deliberately provided the Secretary with the flexibility to address the specific circumstances of any given endangered population, including the authority to identify an experimental population "on the basis of location, migration pattern, or any other criteria that would provide notice as to which populations of endangered or threatened species are experimental." H.R. Conf. Rep. No. 97-835, 97th Cong., 2d Sess. at 34 (1982), reprinted in 1982 U.S.C.C.A.N. at 2875 (emphasis added). For these reasons, we interpret the plain language of section 10(j)(1) as an expression of Congress' intent to protect the Secretary's authority to designate when and where an experimental population may be established, not as a limitation on the Secretary's flexibility.

The restrictive interpretation the Predator Project and Farm Bureaus advocate could actually undermine the Department's ability to address biological reality (i.e., wolves can and do roam for hundreds of miles and cannot be precluded from intermingling with the released experimental population), and thus handicap its ability to effectuate species recovery. The Endangered Species Act simply does not countenance that result. To the contrary, Congress' overriding goal in enacting the Endangered Species Act is to promote the protection and, ultimately, the recovery of endangered and threatened species.9 While the protection of individual animals is one obvious means of achieving that goal, it is not the only means. It is not difficult to imagine that sound population management practices tailored to the biological circumstances of a particular species could facilitate a more effective and efficient species-wide recovery, even if the process renders some individual animals more vulnerable. However, neither Congress nor this court are equipped to make that type of species management decision. Recognizing that fact, Congress left such decisions to the Department. We conclude the Department reasonably exercised its management authority under section 10(j) in defining the experimental wolf population by location.10

The Urbigkits claim on cross-appeal there exists a genetically distinct subspecies of wolf in Yellowstone and Wyoming, Canis lupus irremotus. They further claim the Agencies failed to adequ