United States District Court, E.D. North Carolina, Northern Division
TERRENCE W. BOYLE, District Judge.
This cause comes before the Court on defendants' motion to dismiss and plaintiffs' motion for preliminary injunction. A hearing was held on the preliminary injunction motion before the undersigned on February 11, 2014, at Raleigh, North Carolina. Following the hearing, the Court appointed its own expert to consider questions related to the preliminary injunction and the issues raised by the parties. The Court has received the reports of its expert and has incorporated them into the record of this case. A second hearing was held on May 7, 2014, at Elizabeth City, North Carolina to permit the parties an opportunity to examine the Court's expert.
Having considered defendants' motion to dismiss, the Court grants in part and denies in part the motion. Having further considered the filings of the parties, the amicus brief filed by Safari Club International, and the reports of the Court's expert, the Court grants plaintiffs' motion for preliminary injunction.
Plaintiffs, three groups of animal advocacy or welfare organizations, filed this action against the North Carolina Wildlife Resources Commission, its executive director, and its members in their official capacities (the Commission) regarding the Commission's actions related to authorizing, licensing, and permitting the hunting of coyotes within the State of North Carolina. Plaintiffs contend that the Commission's actions have and will continue to cause the illegal take of endangered red wolves in violation of the Endangered Species Act, 16 U.S.C. § 1531, et seq., and its implementing regulations. Plaintiffs seek a preliminary injunction under Rule 65 of the Federal Rules of Civil Procedure to enjoin the Commission from authorizing coyote hunting in the area designated for the restoration of red wolves within Dare, Tyrrell, Hyde, Washington, and Beaufort counties, North Carolina. With the exception of defendant Gordon S. Myers, Executive Director of the North Carolina Wildlife Resources Commission, defendants move to dismiss the complaint against them, asserting Eleventh Amendment and legislative immunity.
History and Reintroduction of Red Wolves
The red wolf was once common throughout the eastern and south-central United States, but its populations were all but destroyed by the early twentieth century due to predator control programs and degradation of habitat. Wheeler Decl. Ex. H. In 1967, red wolves were first listed as an endangered species under the precursor to the Endangered Species Act. Id. ; Waits Decl. Ex. M. In 1980, red wolves were thought be extinct in the wild, and the United States Fish and Wildlife Service (USFWS) determined that, in order to save the species from complete extinction, a secured captive breeding program would be required. Wheeler Decl. Ex. B. Once the species was determined to be "safeguarded in captivity, program emphasis shifted to a strategy of reintroduction." Id. at 12. In 1987, USFWS reintroduced the red wolf into the Alligator River National Wildlife refuge in eastern North Carolina through the introduction of four pairs that had been bred in captivity. Id. at 14.
The red wolf recovery area now encompasses roughly 1. 7 million acres of land in five eastern North Carolina counties - Dare, Tyrell, Hyde, Beaufort, and Washington. Wheeler Decl. Ex. H. Over the course of twenty years, the wild red wolf population present in North Carolina's five-county red wolf recovery area increased to approximately one hundred and thirty animals, but in the last decade the population of red wolves has stalled or declined, with the current population estimate between ninety and one hundred and ten in the wild. Wheeler Decl. ¶ 17; http://www.fws.gov/redwolf/. The stated objective of the red wolf recovery program is the establishment of two hundred and twenty red wolves in the wild. Wheeler Decl. Ex. B.
Coyotes in North Carolina
Coyotes are not native to North Carolina and their absence in North Carolina was noted when USFWS selected the Alligator River Wildlife Refuge as an appropriate location for the red wolf recovery program. Wheeler Decl. Ex. B at 15. North Carolina classifies coyotes as nongame animals, and under this classification the Commission is authorized to set bag and season limits for hunting coyotes as well as trapping limits. Wheeler Decl. Ex. E. In 2012, there were no bag limits or season limits on coyote hunting, but hunting was limited to daylight hours. 15A NCAC 10B.0219 (2012). In July 2013, a permanent rule went into effect which permits coyote hunting on private land anytime during the day or night, on public lands during the day without a permit and at night with a permit, and further permits the use of artificial lights in hunting coyotes at night. 15A NCAC 10B.0219 (2013). There remains no bag or season limit on coyote hunting. Id.
A 2012 report by the Commission notes that coyotes can be useful in keeping prey species in balance, but also prey on livestock, deer, and domestic pets. Wheeler Decl. Ex. F. The report further notes that the use of bounties in other states to control coyote populations "has been an ineffective and inefficient tool for controlling coyote populations." Id. at 15. The number of coyotes in the red wolf recovery area is currently unknown, but coyotes are thought to outnumber red wolves by at least three to one. Chamberlain Rep. 31 March 2014 at 1.
Red Wolves & Coyotes in the Red Wolf Recovery Area
Red wolves prey primarily on white-tailed deer, raccoon, rabbits, and rodents, while coyote diet consists of a wide variety of food sources, including small mammals, rabbits, birds, snakes, frogs, domestic pets, fruit, and berries. Wheeler Decl. Ex. H; Wheeler Decl. Ex. F. Adult red wolves weigh an average of fifty pounds, stand a little over two feet tall at the shoulder, and are roughly four and a half feet long with their tail. Chamberlain Rep. 22 April 2014 at 3. Coyotes located in the recovery area weigh about thirty pounds, are roughly two feet tall at the shoulder, and are about four feet long with their tail. Id. Red wolf pups and adolescents may be quite similar in size to coyotes. Wheeler Decl. Ex. C. Both species may appear to be buff, tan, grey, or reddish brown in color. Id. Due to their similarity in size and coloring, coyotes may readily be mistaken for red wolves. Wheeler Decl. Ex. F; Chamberlain Rep. 22 April 2014 at 3.
Stable red wolf territories are achieved through the presence of two breeding adults and their offspring, and the presence of stable red wolf territories prevents infiltration of coyotes into an area. Chamberlain Rep. 31 March 2014 at 2-3. Between January 1 and November 21, 2013, nine red wolves were killed by confirmed or suspected gunshots. Wheeler Dec. Ex. H. At least two red wolf gunshot mortalities in 2013 were admitted to have been caused by a hunter or landowner shooting what he believed to be a coyote. Wheeler Decl. Ex. G. In 2014, two red wolves have been killed by suspected or confirmed gunshot. http://www.fws.gov/redwolf/index.html (table last updated March 31, 2014). "Currently, mortality from gunshots is the primary cause of death for [red] wolf breeders, [and] such mortality can contribute to instability in [red] wolf packs and influence hybridization [with coyotes]." Chamberlain Rep. 31 March 2014 at 3.
USFWS has adopted an adaptive management plan in order to address the interbreeding between coyotes and red wolves which produces hybrids and erodes the red wolf gene pool. Waits Decl. Ex. Mat 10. This plan utilizes a "placeholder" theory, wherein coyotes are sterilized and returned to their territories until they are replaced or displaced by red wolves. Id. These placeholder coyotes cannot breed with other coyotes or with red wolves, and further serve to exclude other coyotes or hybrids from their territory. Id. Recently, USFWS and the Commission have agreed to conduct further research into the management of all canids on the Albemarle Peninsula, and such research could include testing the efficacy and necessity of continuing the sterilization of coyotes for use as placeholders in the red wolf recovery area. Myers Aff. ¶ 8; Myers Aff. Ex. B at Attach. A.
MOTION TO ...