                                                              F I L E D
                                                        United States Court of Appeals
                                                                Tenth Circuit

                                                               JAN 13 2000
                                 PUBLISH

                UNITED STATES COURT OF APPEALS             PATRICK FISHER
                                                                    Clerk
                             TENTH CIRCUIT



WYOMING FARM BUREAU FEDERATION;
MONTANA FARM BUREAU FEDERATION;
AMERICAN FARM BUREAU FEDERATION;
MOUNTAIN STATES LEGAL FOUNDATION; IDAHO
FARM BUREAU FEDERATION; NATIONAL
AUDUBON SOCIETY, a nonprofit corporation;
PREDATOR PROJECT, a nonprofit corporation;
SINAPU, a nonprofit corporation; GRAY WOLF
COMMITTEE, a conservation group,

     Plaintiffs-Appellees,

CAT D. URBIGKIT; JAMES R. URBIGKIT,

     Plaintiffs-Appellees and Cross-Appellants,

v.                                                      Nos. 97-8127
                                                             98-8000
BRUCE BABBITT, Secretary of Department of Interior;          98-8007
GEORGE T. FRAMPTON, Assistant Secretary of Fish              98-8008
and Wildlife and Parks, Department of Interior; JAMIE        98-8009
CLARK, Director of United States Fish and Wildlife           98-8011
Service; RALPH O. MORGENWECK, Regional Director
of United States Fish and Wildlife Service; EDWARD E.
BANGS, Project Leader of Gray Wolf EIS; ROGER
KENNEDY, Director of National Park Service; DANIEL
GLICKMAN, Secretary of Department of Agriculture;
MICHAEL DOMBECK, Chief Forester of United States
Forest Service, in their official capacities;
DEPARTMENT OF INTERIOR; UNITED STATES
FISH AND WILDLIFE SERVICE;
 NATIONAL PARK SERVICE; DEPARTMENT OF
 AGRICULTURE; UNITED STATES FOREST
 SERVICE; UNITED STATES OF AMERICA,

        Defendants-Appellants and Cross-Appellees,

 -------------------

 NATIONAL WILDLIFE FEDERATION; WYOMING
 WILDLIFE FEDERATION; IDAHO WILDLIFE
 FEDERATION; WOLF EDUCATION AND RESEARCH
 CENTER; DEFENDERS OF WILDLIFE,

        Intervenors-Appellants,

 NEZ PERCE TRIBE,

        Intervenors.


                   Appeals from the United States District Court
                            for the District of Wyoming
                               (D.C. No. 94-CV-286)


Timothy S. Bishop (Todd S. Welch and William Perry Pendley of Mountain States
Legal Foundation, Denver, Colorado; John J. Rademacher and Richard L. Krause
of American Farm Bureau Federation, Park Ridge, Illinois, on the briefs),
Chicago, Illinois, for Plaintiffs-Appellees.

James R. Urbigkit, pro se, for Plaintiffs-Appellees and Cross-Appellants.

M. Alice Thurston (Lois J. Schiffer, Assistant Attorney General, James C.
Kilbourne, Ellen Durkee, and Christiana P. Perry, Department of Justice,
Washington, D.C.; Margot Zallen, Denver, Colorado, and David Gayer,
Washington, D.C., of counsel, Department of Interior, with her on the briefs) of
Department of Justice, Washington, D.C., for Defendants-Appellants and Cross-
Appellees.



                                        -2-
Brian B. O’Neill (Richard A. Duncan and Jonathan W. Dettmann of Faegre &
Benson LLP, Minneapolis, Minnesota; Russell O. Stewart and Colin C. Deihl of
Faegre & Benson LLP, Denver, Colorado, with him on the briefs for Defenders of
Wildlife; Thomas France and Thomas Lustig of National Wildlife Federation,
Missoula, Montana, with him on the briefs for National Wildlife Federation,
Wyoming Wildlife Federation, Idaho Wildlife Federation, and Wolf Education
and Research Center) of Faegre & Benson LLP, Minneapolis, Minnesota, for
Intervenors-Appellants.

Douglas L. Honnold (James S. Angell with him on the briefs) of Earthjustice
Legal Defense Fund, Bozeman, Montana, for Predator Project, Sinapu, and Gray
Wolf Committee.

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.


                                        -3-
      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.




                                        -4-
                                   I. Background

A.    Factual Summary

      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


      1
         During this time the United States Fish and Wildlife Service (“Fish and
Wildlife Service”) considered the Northern Rocky Mountain Wolf a distinct
subspecies of the gray wolf. As more fully discussed infra, taxonomists have
since tended to recognize fewer subspecies of wolves.


                                         -5-
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


                                         -6-
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.



B.    The Parties

      Appearing as Defendants/Appellants in this matter are the various

governmental departments, agencies and their officials responsible for wolf and


                                         -7-
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


                                         -8-
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




      2
         We note the Friends of Animals, Inc. and Mr. Hill present issues and
arguments in their amici briefs. We will not consider those arguments or resolve
those issues here, as the parties did not adopt them by reference, they do not
involve jurisdictional questions or touch on issues of federalism or comity we
might consider sua sponte, and we perceive no other exceptional circumstance to
justify our consideration of issues raised solely by amicus. See Tyler v. City of
Manhattan, 118 F.3d 1400, 1403-04 (10th Cir. 1997) (court of appeals should
exercise discretion to consider new issues and arguments advanced by amicus
only in exceptional circumstances).


                                             -9-
C.    Pending Motions

      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.



D.    The Issues

      Standing

      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


                                        -10-
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.



      Statutory Notice and Procedural Rights

      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 Wolf Reintroduction Rules

      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


                                          -11-
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).



                                 II. Legal Analysis

A.    Standard of Review

      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


                                        -12-
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)).



B.    Statutory Context

      Congress enacted the Endangered Species Act in 1973 to “provide for the

conservation, protection, restoration, and propagation of species of fish, wildlife,


                                        -13-
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


                                          -14-
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:

      Experimental populations

             (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;

                                        -15-
      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

                                        -16-
      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.



C.    Alleged Violations

      1. Geographic Separation

      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


                                         -17-
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.

                                        -18-
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,


                                         -19-
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


                                         -20-
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.




      3
         The Department generally defines “population” as “a group of fish or
wildlife ... in common spatial arrangement that interbreed when mature.” 50
C.F.R. § 17.3. It refined that definition in the context of the wolf reintroduction
regulations to mean “at least two breeding pairs of gray wolves that each
successfully raise at least two young” yearly for two consecutive years. 59 Fed.
Reg. at 60256.


                                        -21-
      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 à 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


      4
          As amici, Environmental Defense Fund and others aptly summarize:

      The line dividing protected and unprotected (or differently protected)
      populations is sometimes an international boundary (e.g., grizzly
      bears, which south of the US-Canada border are threatened, but north
      of the border are unlisted [40 Fed. Reg. 31376 (July 28, 1975),
      codified at 50 C.F.R. § 17.11(h) (1977)]), a state boundary (e.g.,
      brown pelicans, which west of the Mississippi-Alabama state line are
      listed as endangered, while east of that line are unlisted [50 Fed.
      Reg. 4938 (Feb. 4, 1985), codified at 50 C.F.R. § 17.11(h) (1997)]),
      a county boundary (e.g., American alligators which were once listed
      as endangered everywhere other than in three Louisiana parishes [40
      Fed. Reg. 44412 (Sept. 26, 1975)]), a measure of latitude (e.g., bald
      eagles, which until 1978 were listed as endangered south of 40
      degrees north latitude, while those to the north were unlisted [50

                                         -22-
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


      C.F.R. § 17.11(i)(1977), revised at 43 Fed. Reg. 6233 (Feb. 14,
      1978)]), a point on the coast (e.g., coho salmon, which, if they spawn
      south of Cape Henry Blanco in Oregon are threatened, but which, if
      they spawn north of the cape are unlisted [62 Fed. Reg. 24588 (May
      6, 1997)]), a distance from the coastline (e.g., western snowy
      plovers, which are threatened within 50 miles of the Pacific coast,
      but unlisted beyond that distance [58 Fed. Reg. 12864 (March 5,
      1993)]), or even a point on a river (e.g., least terns, which are
      endangered along the Mississippi River and its tributaries north of
      Baton Rouge, but south of Baton Rouge lack any ... protection [50
      Fed. Reg. 21784, 21789 (May 28, 1995)]).

Indeed, the protection afforded the gray wolf itself depends on the geographic
location (if an “endangered” wolf in Wisconsin crosses the border into Minnesota
it becomes “threatened,” and therefore has fewer Endangered Species Act
protections, 43 Fed. Reg. at 9611-12, codified at 50 C.F.R. § 17.11(h)(1997)).

      5
         This conclusion represents our major departure from the district court’s
reasoning, and eliminates the premise on which the district court held the
Department had violated its own regulations. Wyoming Farm Bureau Fed’n, 987
F. Supp. at 1373-74. As explained more fully in section II.C.2 of this opinion, we
hold the Department may, consistent with the plain language of section 10(j) and
the context of the Endangered Species Act as a whole, treat all wolves found
within the boundaries of the designated experimental population areas, including
any lone dispersing wolves that may enter those areas, as nonessential
experimental animals. Moreover, we hold the district court erred to the extent it
suggested there is a temporal constraint on when and how long the Department
may maintain an experimental population. While the regulations require an
analysis of the degree to which experimental and natural populations might
overlap at predictable periodic times in order to determine when an introduced
population is experimental, they do not require experimental and natural
populations be forever kept distinct. To hold otherwise would be to undermine
the recovery objective of section 10(j) altogether. See 59 Fed. Reg. at 60261,
60276 (the Department designed the reintroduction program in part to expedite
gray wolf recovery by encouraging interbreeding between experimental and native

                                        -23-
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


populations).

      6
         59 Fed. Reg. at 60256. We discuss and uphold this factual determination
in section II.C.4.


                                          -24-
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.



      2. Protection of Naturally Occurring Wolves

      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


      7
         We note the Predator Project largely supports the government’s
interpretation and implementation of the Endangered Species Act through the
wolf reintroduction program. Its point of contention on appeal concerns “the
management of Idaho’s naturally occurring wolves, and ... not ... the status of the
released wolves in Idaho, and still less the treatment of released wolves in
Yellowstone.”


                                        -25-
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


      8
        59 Fed. Reg. at 60266 (50 C.F.R. § 17.84(i)(7)(iii)); see also id. at 60261
(response to Comment 16).


                                         -26-
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


                                         -27-
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




                                        -28-
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

       9
         See H.R. Conf. Rep. No. 97-835, 97th Cong., 2d Sess. at 30 (1982),
reprinted in 1982 U.S.C.C.A.N. 2860, 2871 (“In enacting the Endangered Species
Act, Congress recognized that individual species should not be viewed in
isolation, but must be viewed in terms of their relationship to the ecosystem of
which they form a constituent element. Although the regulatory mechanisms of
the Act focus on species that are formally listed as endangered or threatened, the
purposes and policies of the Act are far broader than simply providing for the
conservation of individual species or individual members of listed species.”
(Emphasis added.)).

       10
            As amici Environmental Defense Fund and others aptly point out:

              The wolf reintroduction is unusual only in that the source
       animals came from Canada, where the wolf is unprotected by the
       [Endangered Species Act]. In every other instance in which
       experimental populations have been established pursuant to section
       10(j), the source animals were [Endangered Species Act]-protected

                                         -29-
      3. Protection of Distinct Subspecies

      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 adequately consider the impacts of the

reintroduced “Canadian” wolves on that naturally occurring subspecies, in

violation of section 7 of the Endangered Species Act, 16 U.S.C. § 1536.

According to the Urbigkits, the Agencies ignored their own expert, Dr. Ron

Nowak, a Fish and Wildlife Service taxonomist, who commented that “[a] big part

of the conservation of a full species is to insure that its component subspecies and




      individuals taken either directly from the wild or from captivity.
      [Delmarva fox squirrel, southern sea otter, yellowfin madtom,
      Colorado squawfish and woundfin, red wolf, whooping crane.]
      Moreover, in at least three instances, every last individual of an
      endangered species has been captured and placed in a captive
      breeding program, and some of them or their endangered progeny
      were later reintroduced into the wild as part of a “threatened”
      experimental population. [Guam rail, black-footed ferret, California
      condor.] Thus, in each case, the protection afforded some
      “endangered” individuals has been diminished. The absence of any
      non-endangered individuals of these (and most other) endangered
      species makes that a practical necessity, and one that Congress
      clearly understood. Moreover, that Congress intended that some
      individual animals could lose their former “endangered” status as a
      result of action taken under section 10(j) is also apparent from
      section 10(j)(3), 16 U.S.C. § 1539(j)(3), which authorizes the
      Secretary retroactively to designate previously introduced
      populations as “experimental” and thus to change their status – and
      the concomitant protection – from “endangered” to “threatened.”


                                        -30-
populations remain intact and in place,” that there is a “subspecific distinction”

between the original Yellowstone wolf and the reintroduced wolves, and that “[i]f

there were actually a surviving population of the original Yellowstone wolf, every

effort should be made to maintain its purity and to avoid bringing in other

wolves.” The Urbigkits contend that because the subspecies irremotus was

originally listed in 1973 and not specifically delisted or declared extinct in 1978

when Endangered Species Act protection was extended to all wolf subspecies,

irremotus is still a legally listed endangered species entitled to full protection

under the Act, like Canis lupus baileyi, the Mexican wolf subspecies. 11 After

careful analysis, we conclude these claims lack both factual and legal support.


      11
          The Northern Rocky Mountain Wolf, Canis lupus irremotus, was listed
as an endangered subspecies of gray wolf, together with three other gray wolf
subspecies, in June 1973. 43 Fed. Reg. at 9607. In 1977, the Fish and Wildlife
Service proposed to combine those subspecies, and instead list the entire species,
Canis lupus, as endangered in the lower forty-eight states, except Minnesota. The
proposed reclassification became final in 1978. Id. at 9607-08, 9610-12. The
Urbigkits reason that because the Canis lupus irremotus subspecies was originally
listed and never formally delisted, it is entitled to full Endangered Species Act
protection separate and apart from the broader gray wolf recovery program.
Given that premise, they further reason the reintroduction of gray wolves from
Canada amounts to a de facto delisting of the irremotus subspecies.

       The Mexican gray wolf was listed as an endangered subspecies in April
1976. (63 Fed. Reg. 1752 (January 12, 1998)). Like the irremotus listing, this
listing was superceded by the 1978 reclassification designating the entire species
of gray wolf as endangered. However, unlike irremotus, identifiable, captive
populations of the Mexican gray wolf exist and are the subject of an independent
reintroduction program in east-central Arizona and west-central New Mexico.
See 63 Fed. Reg. 1752, 1753 (January 12, 1998); 50 C.F.R. § 17.84(k).

                                          -31-
      The Agencies decided to reintroduce gray wolves from Canada without

reference to subspecific differences. They based this decision on (1) the lack of

evidence any wolf population existed in the reintroduction areas at the time of

reintroduction; (2) scientific evidence that most of the historically recognized

subspecies of Canis lupus (including irremotus) do not warrant recognition under

modern taxonomic classification methods; and (3) the likelihood that even if there

had been a distinct subspecies found in the middle to northern United States, as

wolves are known to disperse and interbreed over hundreds of miles, its range

would have overlapped with a more northern subspecies in southwestern Canada

and the border states. Accordingly, the Agencies concluded:

      The original genetic stock cannot be restored to the area, as it no
      longer exists. However, if taken from southwestern Canada,
      reintroduced wolves will be of the same genetic stock from which
      natural dispersers no doubt immigrated into the original Yellowstone
      population, the same stock as those currently recolonizing Montana
      and Idaho, and the same stock that likely will get to Yellowstone
      through natural dispersal .... In other words, since we can not bring
      back the Northern Rocky Mountain Wolf, regardless of whether it
      deserved to be a separate subspecies, we can do the next best thing
      and assist nature in restoring the wolf to the northern Rockies.


      The factual, scientific determination that the subspecies irremotus no

longer exists is supported by evidence in the record comparing older taxonomic

studies to more recent and sophisticated studies. The more recent studies

conclude there is very little differentiation between the many subspecies of gray


                                         -32-
wolf previously recognized. This determination is further supported by a lack of

physical evidence demonstrating the presence of any wolf population, let alone a

genetically distinct wolf population, in either the Yellowstone or central Idaho

reintroduction areas. In rebuttal, the Urbigkits proffer the statements of Dr.

Nowak, who opined there is “a subspecific distinction” between the original

Yellowstone wolf and the reintroduced wolves that would be worthy of protection

“[i]f there were actually a surviving population of the original Yellowstone wolf.”

While we appreciate the relevance of Dr. Nowak’s opinion on the issue of genetic

variation and the importance of subspecies conservation where an identifiable

subspecies exists, we fail to see how it refutes the Agencies’ conclusion the

subspecies irremotus does not exist. Applying the arbitrary and capricious

standard of review, we cannot displace the Defendants’ choice between two fairly

conflicting views, and must defer to the agencies’ view on scientific matters

within their realm of expertise. Trimmer, 174 F.3d at 1102; National Cattlemen’s

Ass’n v. EPA, 773 F.2d 268, 271 (10th Cir. 1985). Because this is a scientific

matter within the Agencies’ expertise, and because there is ample evidence in the

administrative record to support the Defendants’ position, we uphold their

subspecies conclusions. 12


      12
         In any event, we do not believe the Endangered Species Act mandates
the protection of the irremotus subspecies to the exclusion of reintroducing the
gray wolf species into Yellowstone and central Idaho. While the Urbigkits

                                        -33-
      4. National Environmental Policy Act

      The Urbigkits further argue on cross-appeal the district court erred in

rejecting their claim the Defendants violated the National Environmental Policy

Act by failing to adequately analyze the impacts of wolf reintroduction on

naturally occurring wolf populations, including distinct subspecies, or to



correctly point out the Act permits subspecific protection vis à vis defining
“species” broadly to include subspecies, see 16 U.S.C. § 1532(16), they
erroneously assert it mandates such protection. Nowhere does the Endangered
Species Act require the Secretary to designate experimental populations at the
subspecies level. To the contrary, section 10(j) expressly authorizes the Secretary
to make experimental population determinations at the species level:

            (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.

16 U.S.C. § 1539(j)(2)(B). The only legal impediment this provision creates to
the reintroduction of a listed species (or subspecies) is if there is an existing
subspecies population within the experimental area. As discussed above, the
Agencies reasonably determined there was no such existing population.

       For these same reasons, we do not believe the Agencies’ actions operate as
a de facto delisting of the subspecies irremotus. As discussed above, the 1978
ruling extending Endangered Species Act protections to all gray wolves does not
diminish the protection afforded a subspecies, generally, or under a section 10(j)
reintroduction program, if a subspecies population is present within the proposed
reintroduction area. Indeed, the Fish and Wildlife Service expressly noted in the
1978 ruling it would continue to recognize “valid biological subspecies” for
purposes of research and conservation. 43 Fed. Reg. at 9610. The fact remains,
however, the Agencies reasonably determined there is no irremotus population
within the designated reintroduction area.


                                        -34-
investigate the need for additional research. Having studied the arguments and

administrative record, we agree with the district court the Urbigkits’ National

Environmental Quality Act claims boil down to a disagreement over scientific

opinions and conclusions. The fact the Urbigkits disagree with the Defendants

concerning the existence of a distinct subspecies of wolf in Yellowstone National

Park and the impacts of the reintroduction program on that subspecies and other

naturally occurring wolves, and cite evidence in the record they believe supports

their position, simply does not constitute a National Environmental Policy Act

violation.



      We have long acknowledged the National Environmental Policy Act

“‘prescribes the necessary process,’” but “‘does not mandate particular results.’”

Holy Cross Wilderness Fund v. Madigan, 960 F.2d 1515, 1522 (10th Cir. 1992)

(quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350

(1989)). In other words, the Act “prohibits uninformed – rather than unwise –

agency action.” Robertson, 490 U.S. at 351. Accordingly, so long as the record

demonstrates the Agencies took a “hard look” at the environmental consequences

of the wolf reintroduction program, we will not second-guess the wisdom of their

ultimate decision or conclusions concerning the need for additional research or

the impacts of wolf reintroduction on naturally occurring populations or


                                        -35-
subspecies. See Colorado Envtl. Coalition v. Dombeck, 185 F.3d 1162, 1171-72

(10th Cir. 1999). 13



       The administrative record establishes that the Agencies analyzed the

alleged existence of naturally occurring wolves in the experimental population

areas, studied the arguments pertaining to subspecies identification and

recognition, and catalogued the research studies and scientific sources on which

they relied. Because of the lack of evidence of wolf populations (pack activity) in

Yellowstone or central Idaho, and the scientific evidence supporting a reduction


       13
          The Urbigkits attempt to recharacterize their claim challenging the
adequacy of the Final Environmental Impact Statement into one of statutory
construction deserving of de novo, non-deferential review. To the extent they
assert statutory construction arguments, we fully considered and addressed those
arguments in the context of our discussion of the merits of their Endangered
Species Act claims. As noted above, the standards under which we review
National Environmental Policy Act issues are well established and embody
deference to the administrative agency. Specifically,

       [i]n reviewing the adequacy of a final environmental impact
       statement we merely examine whether there is a reasonable, good
       faith, objective presentation of the topics the National Environmental
       Policy Act requires an environmental impact statement to cover. Our
       objective is not to “fly speck” the environmental impact statement,
       but rather, to make a pragmatic judgment whether the environmental
       impact statement’s form, content and preparation foster both
       informed decision-making and informed public participation.

Colorado Envtl. Coalition, 185 F.3d at 1172 (alterations, quotation marks and
citations omitted).


                                        -36-
in the number of recognized subspecies, the Agencies determined to forego

additional analysis of these specific issues in the Draft Environmental Impact

Statement or Final Environmental Impact Statement. The Agencies further

concluded that these issues, which were identified during the public scoping

process, would not be impacted significantly by any of the wolf reintroduction

alternatives being considered since none of the reintroduction alternatives would

hinder ongoing efforts to monitor wolf activity, preclude further study of the

number and distribution of wolf subspecies in North America, or otherwise

negatively impact wolf research. It is apparent the Agencies based these

conclusions on the reasoned opinions of and data gathered by Fish and Wildlife

Service and National Park Service experts. “[A]gencies are entitled to rely on

their own experts so long as their decisions are not arbitrary and capricious.”

Colorado Envtl. Coalition, 185 F.3d at 1173 n.12 (citing Marsh v. Oregon

Natural Resources Council, 490 U.S. 360, 378 (1989)).



      We appreciate that the Urbigkits patently disagree with the Agencies’

conclusions concerning (1) the existence of naturally occurring wolf populations,

(2) the existence of an alleged subspecies of wolf unique to Yellowstone National

Park, and (3) the significance of any impact the wolf reintroduction program

would have on naturally occurring wolves. We also recognize the Urbigkits cite


                                        -37-
evidence in the administrative record they believe supports their position.

However, the mere presence of contradictory evidence does not invalidate the

Agencies’ actions or decisions. See Trimmer, 174 F.3d at 1102. The Urbigkits

fail to show a lack of substantial evidence in the administrative record to support

the Agencies’ conclusions, or that the Final Environmental Impact Statement was

otherwise inadequate to foster informed public participation or informed decision-

making. Consequently, we hold the Agencies did not violate the National

Environmental Policy Act.



                                  III. Conclusion

      After setting aside the final wolf reintroduction rules as unlawful, the

district court ordered Agencies to remove all Canadian wolves and their progeny

from both experimental population areas. The Predator Project, Sinapu and the

Gray Wolf Committee argue on appeal this remedy is inappropriate and represents

an abuse of the district court’s discretion. Because we uphold the challenged

wolf reintroduction rules as lawful under the Endangered Species Act and the

National Environmental Policy Act, we need not address the propriety of the

district court’s remedy. We REVERSE the order and judgment of the district

court, VACATE the district court’s stay order, and REMAND with instructions

to the district court to enter an order upholding the challenged wolf reintroduction


                                         -38-
rules.




         -39-
