The second wood bison suit was filed to compel a 12-month downlisting determination and to challenge the import permit denials. The 12-month period is a fixed, non-discretionary deadline set by Congress, so it is enforceable. The USF&WS has managed to delay the case and deter every effort we have made to move it to a fast conclusion. At this time we expect a late January or early February 12-month positive downlisting finding, but the briefing schedule, over our objection, extends the briefing into March. In short, we have multiple 50-page briefs due back and forth that will be mooted by the 12-month finding that will occur before all that briefing is done. The 12-month finding is two years past due and was already promised in September, then November of 2010. Now it is promised in late January 2011.
We tried several times to get the Court to separate the 12-month downlisting deadline case from the permit denial challenges, but the USF&WS opposed the bifurcation, obviously for delay. The administrative record that was finally produced is an absolute sham, but we waived our right to challenge the incompleteness of those records because that alone would have delayed the briefing for four or more additional months. The record was so incomplete one would suspect it was purposely done to lure us into filing motions that would add to the delay. It was not a complete record, though it was sworn to be. Instead, we accepted the record as submitted and argued to expedite the case.
Though the Court would not separate the downlisting and permit claims because of the Government’s objection, it did expedite some of the briefing. Our briefs and replies are due on an expedited basis, but the defendant government has the extended periods it asked for to file its briefs and replies. We have an expedited schedule but defendants do not! It is a disappointing but partial success. Wood Bison No. 2 will be fully briefed, both claims, by March. If the Service makes a 12-month finding in January, that related claim will be dismissed as moot, but we will still proceed with the permit denials with what little record we have. Even though the administration records that the government has produced is grossly incomplete, it is revealing.
The issue in the permits case is whether or not the permit denials were arbitrary, capricious, irrational or contrary to law. Though there is an inference in favor of the expert findings of the agency, which is a serious hurdle for us, if the record does not provide a rational reason for the denials it is deemed irrational and remarked to the agency. In this instance, the division published in the Federal Register internally and determined that the hunting did not jeopardize the wood bison in the Yukon and that it “enhanced” its survival. The division, including the Acting Director of USF&WS, was tweaking the wording of the findings of enhancement when a “special legal advisor” changed their course in a series of “privileged” meetings.
There is no factorial basis in the record for the denials. The specific reasons given for the denials were perfect contradictions of the findings in the record up to the date of the confidential meetings. To top it off, the senior biologist in the Division refused to participate and outright said the change in position was not based upon the best science, that it was something else that he did not have words to describe and did not agree with. The record produced does not have a fact-based rational reason for not finding enhancement. Instead, it has enhancement findings, then a complete reversal of that finding after “privileged” (withheld from the record on the basis of attorney-client communication) meetings with a special legal advisor over the top biologist’s written objection. The negative reasons for not finding enhancement point for point contradict the positive findings in the record. By late January, we will see how they defend such a record.