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

### FEB 25 2003 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

STEPHEN M. GORDON; DIAMOND G RANCH, INC., a Wyoming corporation, Plaintiffs - Appellants,

v. GALE NORTON, Secretary of the Interior; UNITED STATES DEPARTMENT OF INTERIOR; UNITED STATES FISH AND WILDLIFE SERVICE,

Defendants - Appellees. No. 01-8102

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF WYOMING (D.C. No. 98-CV-1025-D)
John C. Martin, Patton Boggs LLP, Washington, D.C., (Susan M. Mathiascheck, Alexandra V. Butler, Patton Boggs LLP, Washington, D.C.; Richard E. Day, Williams, Porter, Day & Neville, Casper, Wyoming, w ith him on the briefs), for Plaintiffs-Appellants. Katherine J. Barton, U.S. Department of Justice, Wa shington, D.C., (Margot Zallen, Of Counsel, U.S. Department of the Interior , Denver, Colorado; Thomas L. Sansonetti, Assistant Attorney General, W ashington, D.C.; David C. Shilton, U.S. Department of Justice, Washington, D. C., with her on the brief), for Defendants-Appellees.-2-

Before MURPHY , ANDERSON , and O’BRIEN , Circuit Judges.

MURPHY , Circuit Judge.

I. INTRODUCTION Appellants Stephen Gordon (“Gordon”) and the Diamon d G Ranch, Inc. (“Diamond G”) challenge the Fish and Wildlife Servi ce’s (“FWS”) control of gray wolves introduced under the Northern Rocky MountainWolf Recovery Plan (“Recovery Plan”) near the Diamond G in the Dunoir Valley of northwestern Wyoming. Seeking declaratory and injunctive relief , they filed this action in federal district court alleging violations of the F ifth Amendment Takings Clause and the regulations promulgated under the Endangere d Species Act (“ESA”). The district court dismissed the takings claims for lac k of subject matter jurisdiction and the ESA claims as not yet ripe for review. Thi s court has jurisdiction under 28 U.S.C. § 1291 and affirms

. II. BACKGROUND A. The Northern Rocky Mountain Wolf Recovery Plan The ESA is designed to protect and conserve endange red and threatened species and the ecosystems upon which they may be c onserved. 16 U.S.C. § 1531(b). To accomplish this, the ESA authorizes FW S, acting as proxy for the Secretary of the Interior, to identify endangered o r threatened species and issue3 -3- regulations to conserve such species. Id . § 1533(a), (d). The ESA also authorizes the designation of nonessential, experimental popul ations of threatened species and the promulgation of rules concerning the manage ment of such populations. Id. § 1539(j); Wyo. Farm Bureau Fed’n v. Babbitt , 199 F.3d 1224, 1229 (10th Cir. 2000). The gray wolf has been listed as an endangered spec ies in the lower fortyeight states, except Minnesota, since 1978. 50 C.F .R. § 17.11; Wyo. Farm
Bureau , 199 F.3d at 1228. In 1994, the Secretary of the Interior adopted an updated Recovery Plan which called for the annual r eintroduction of fifteen gray wolves in Yellowstone National Park and central Idaho, two nonessential, experimental population areas. Wyo. Farm Bureau , 199 F.3d at 1228-29. The Department of the Interior also adopted regulations to manage these populations. 50 C.F.R. § 17.84. These regulations authorize FWS to designate as problem wolves those animals that attack livestock once within a calendar year or attack domestic animals twice within a calendar year and t o “take” such wolves. Id . § 17.84(i)(3)(vii). Authorized “takes” include: aver sive tactics, nonlethal control, relocation, and lethal control. Id.
B. Reintroduced Wolves on the Diamond G Ranch In 1997, two reintroduced wolves and their five pup s, a pack known as the Washakie Pack, traveled to the Diamond G in the Dun oir Valley. On October 84 -4- and 11, 1997, the Diamond G reported potential wolf depredation of cattle to Wyoming Game and Fish personnel. None of the kills were confirmed as wolf kills. While no wolf depredation had been confirme d, FWS personnel joined Wyoming Wildlife Services (“WS”) personnel to assis t in controlling the Washakie Pack on October 16 because the adult male wolf had been observed chasing Diamond G cattle. FWS decided to try to tr ap the pack and move them to a pen in Yellowstone National Park. FWS and WS per sonnel also monitored and harassed the wolves in an attempt to deter them fro m Diamond G cattle. On October 19, another calf killing was discovered, an d it was determined that wolves were responsible. FWS decided to kill the a dult male wolf after observing it actively hunting cattle and determining that it had been involved in prior depredations in Montana. FWS also recommended, how ever, to observe the adult female wolf and the pups before making a decision r egarding further control actions. The adult female wolf and her pups remained togethe r and were reportedly chasing cattle in November. No new depredations we re reported and the cattle were moved to a lower elevation for winter. FWS co ntinued to monitor the adult female wolf and the pups throughout the winter of 1 997-98. In a letter to FWS dated March 16, 1998, Gordon’s attorney expressed his client’s concern regarding the management of wolves on the Diamond G. Jaime5 -5- Rappaport Clark (“Clark”), Director of FWS, respond ed in a letter dated April 24, 1998 (“Clark Letter”). In this letter, Clark descr ibed the objectives of the Recovery Plan and FWS’ efforts in minimizing wolf d epredation of livestock; summarized the wolf depredation that occurred on th e Diamond G in October 1997; described compensation plans; and described f uture plans for wolf management on the Diamond G. The Diamond G Ranch Manager reported that a guard d og was attacked in April 1998. This attack was not confirmed as a wol f attack. Two other dogs, however, were confirmed to have been killed by a wo lf in late April 1998. Gordon and Diamond G filed this action on June 2, 1 998. Three cattle kills were reported in June 1998, one of which was confirmed as a wolf kill and the other two were determined to be “highly probable” wolf kills. FWS decided to take further action to contr ol the Washakie Pack and on June 21 killed the adult female wolf and one yearli ng pup. The Diamond G Ranch Manager reported additional cattle losses in July and August. No investigation occurred, however, because the carcas ses were not reported for several days after they were found. By August 25, 1998, the remaining wolf pups moved to the Yellowstone National Park about 25-30 miles from Diamond G.6 -6- After the remaining wolves of the Washakie Pack dis persed, other wolves moved into the area near Diamond G. It is expected that these wolves may also depredate on Diamond G livestock.
III. ANALYSIS A. Takings Claims This court reviews de novo the district court’s decision that it lacked subject matter jurisdiction over plaintiffs’ taking s claims. See Madsen v. United States ex rel. United States Army Corps of Eng’rs , 841 F.2d 1011, 1012 (10th Cir. 1987). The Takings Clause of the Fifth Amendment provides that “private property [shall not] be taken for public use, without just c ompensation.” U.S. C ONST
. amend. V. It is clear from this text that governme ntal interference with private property rights is not limited per se . First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 314-15 (198 7). Rather, the Takings Clause is understood only to require compensation for a “proper interference amounting to a taking.” Id . at 315. Accordingly, equitable relief is not ava ilable to enjoin a lawful taking when a property owner cansubsequently sue the government for compensation. Ruckelshaus v. Monsanto Co. , 467 U.S. 986, 1016 (1984).7 -7- Generally, compensation for a taking may be obtaine d under the Tucker Act, which confers jurisdiction on the United State s Court of Claims. 28 U.S.C. § 1491; Preseault v. Interstate Commerce Comm’n , 494 U.S. 1, 11-12 (1990). Thus, if a Tucker Act remedy is available, plaintif fs must first avail themselves of the process provided by the Tucker Act and file sui t in the Court of Claims for compensation. Preseault , 494 U.S. at 11-12; E. Enters. v. Apfel , 524 U.S. 498, 520 (1998). A remedy is available under the TuckerAct unless Congress expresses an “unambiguous intention to withdraw the Tucker Act remedy.” Preseault , 494 U.S. at 12. The ESA contains no language to indicate a Congressional intention to withdraw a Tucker Act re medy. Accordingly, the Court of Claims retains jurisdiction over takings c laims that arise under the ESA. See id

. Plaintiffs argue, however, that the district court has jurisdiction over a takings claim when a plaintiff alleges irreparable harm from a continuing violation and seeks only equitable relief. Plainti ffs argue that the United States Supreme Court decision in Eastern Enterprises is dispositive of this issue. In Eastern Enterprises , the Supreme Court addressed the constitutionalityof the Coal Industry Retiree Health Benefit Act of 1992 (“ Coal Act”), 26 U.S.C. §§ 9701-9722, which mandated the contribution of moneyto a benefit fund established for retirees and their dependants. 524 U.S. at 503-04. Seeking1 The Plaintiffs did not raise a due process claim. 8 -8- declaratory and injunctive relief, the claimant company in Eastern Enterprises filed a complaint in a federal district court alleg ing due process and takings claims. Id . at 517. A majority of the Court held that the Co al Act was unconstitutional. Id . at 538 (plurality opinion); id . at 539 (Kennedy, J., concurring in the judgment and dissenting in part). A different majority, however, concluded that the Takings Clause was not implicated by the Coal Act and that, instead, the controlling question was whe ther the Coal Act violated the substantive component of the Due Process Clause. See id. at 539-47 (Kennedy, J., concurring in the judgment and dissenting in part); id . at 554-58 (Breyer, J., dissenting). Accordingly, plaintiffs’ argument that Eastern Enterprises is dispositive of their takings claims is unavailing. 1 Moreover, plaintiffs’ takings claims fail even unde r the plurality’s analysis in Eastern Enterprises . The plurality in Eastern Enterprises noted that a claim for compensation under the Takings Clause must be b rought first in the Court of Claims unless Congress expresses a clear intention to “withdraw[] the Tucker Act grant of jurisdiction.” Id . at 520. The plurality reasoned, however, that th e presumption of Tucker Act applicability is “reverse d where the challenged statute, rather than burdening real or physical property, re quires a direct transfer of funds mandated by the Government.” Id . at 521 (quotation omitted). The plurality9 -9- reasoned that Congress could not have contemplated providing Tucker Act compensation for liability under the Coal Act becau se such a compensation scheme would require a dollar for dollar return of actual funds paid under the Coal Act. Id . By permitting claimants to seek a declaration of the constitutionality of the governmental activity prio r to the taking, the plurality reasoned, an “utterly pointless set of activities” is avoided. Id . (quotation omitted). Accordingly, the plurality held that “[b ]ased on the nature of the taking alleged” the district court had jurisdiction over t he takings claim and the power to award declaratory and injunctive relief. Id . at 522. The nature of the taking as discussed by the plural ity in Eastern Enterprises is clearly distinguishable from the alleged taking at issue in this case. Unlike the claimant company in Eastern Enterprises , the lawfulness of the government action is not at issue. See Wyo. Farm Bureau , 199 F.3d at 1241 (holding that the Wolf Recovery Plan neither violated the ESA nor the National Environmental Policy Act). Cf. Ramirez de Arellano v. Weinberger , 745 F.2d 1500 (D.C. Cir. 1984) (holding that because the alleged taking was not lawful, the plaintiff was entitled to equitable relief and, moreover, the fed eral district court had jurisdiction over the plaintiff’s claim), vacated on other grounds , 471 U.S. 1113, 1522-23 (1985).10 -10- Furthermore, the alleged taking in this case is notsimilar to the alleged statutory taking discussed by the plurality in Eastern Enterprises . Plaintiffs allege takings of physical property, such as cattle , dogs, and horses. The plurality in Eastern Enterprises distinguished takings of physical property and rec ognized that a Tucker Act remedy is available for such taki ngs. 524 U.S. at 521. Accordingly, there is no reason to reverse the pres umption of Tucker Act applicability to plaintiffs’ takings claims for the loss of physical property. Plaintiffs also allege the taking of their business and lifestyle and argue that these takings are similar to the taking discussed by the plurality in Eastern Enterprises

. This argument lacks merit. The nature of the alleg ed taking in Eastern Enterprises was noteworthy because it was clear that Congress had not contemplated that a plaintiff who alleged the takin g of a sum of money would be required to sue the government under the Tucker Actfor the return of the sum of
money. Id . The plurality reasoned that in such a circumstan ce it was appropriate to permit the claimant company to forego the futile process of seeking Tucker Act compensation and to challenge the constitutionalityof the government action directly. Id . By contrast, no such “utterly pointless set of a ctivities” is created by requiring plaintiffs to seek Tucker Act compensatio n for the taking of business and lifestyle. See id

.11 -11- Plaintiffs also argue that the district court has j urisdiction over takings claims when compensatory relief is inadequate. Pla intiffs, however, fail to present any persuasive support for this argument. They rely on Southeast Kansas Community Action Program Inc. v. Secretary of Agric ulture , 967 F.2d 1452 (10th Cir. 1992), and Hamilton Stores, Inc. v. Hodel , 925 F.2d 1272 (10th Cir. 1991). No takings claims, however, were raised in those ca ses. Plaintiffs also cite United States Fidelity & Guaranty v. McKeithen , 226 F.3d 412 (5th Cir. 2000), cert. denied, 532 U.S. 922 (2001); and Washington Legal Foundation v. Texas Equal Access to Justice Foundation , 270 F.3d 180 (5th Cir. 2001), rehearing en banc denied, 293 F.3d 242 (5th Cir. 2002). Those cases are al so easily distinguished. Id . The challenged takings in United States Fidelity & Guaranty and Washington Legal Foundation , similar to the alleged taking in Eastern Enterprises , involved the statutory taking of monetary assets. United States Fid.
& Guar. , 226 F.3d at 417 (alleged taking arose from a stat ute under which insurers were charged based on benefits paid under insurance policies written before the statute’s effective date); Washington Legal Found. , 270 F.3d at 184 (alleged taking arose from IOLTA program under whic h the state seized the interest earned on client-funds in IOLTA accounts). The nature of the property allegedly taken in this case is decidedly differentfrom the liquid funds in Eastern12 -12- Enterprises , United States Fidelity & Guaranty , and Washington Legal Foundation

. Therefore, because a Tucker Act remedy is available , the district court lacked subject matter jurisdiction over plaintiffs’ takings claims. Plaintiffs must file their claims in the Court of Claims for compen satory relief.
B. ESA Claims 1. The administrative record As a preliminary matter, the plaintiffs argue that the district court erred in denying their motion to supplement the administrati ve record with the following: the government’s Wolf Control Plan concerning endan gered wolves; videotape of its investigation of a calf kill; evidence relating to attacks on Diamond G dogs in April 1998; information on a meeting between FWS pe rsonnel and ranchers in April 1998; verbal information provided to the gove rnment; evidence of depredations prior to the fall of 1997 and after th e April 24, 1998 letter; and evidence of harm to the Diamond G. While the plain tiffs argue that this evidence is pertinent to a review of the merits of their cla ims, they do not argue that it is relevant to determining whether this case presents issues ripe for review. Accordingly, because this court holds that it lacks subject matter jurisdiction over the plaintiffs’ ESA claims on the grounds of ripene ss, this issue need not be resolved.13 -13- 2. Ripeness Under the ESA citizen-suit provision, “any person m ay commence a civil suit . . . to enjoin any person, including the Unit ed States and any other governmental instrumentality or agency . . . who is alleged to be in violation of” the ESA “or regulation issued under” the ESA. 16 U .S.C. § 1540(g)(1)(A). The APA governs judicial review of agency action challe nged through the ESA citizen-suit provision. Coalition for Sustainable Res., Inc. v. United Stat es Forest Serv. , 259 F.3d 1244, 1249 (10th Cir. 2001). A claim, h owever, must be ripe for a federal court to maintain subject matter jurisdic tion. Park Lake Res. Ltd Liab. Co. v. United States Dep’t of Agric. , 197 F.3d 448, 450 (10th Cir. 1999). In determining whether a case is ripe for review underthe APA, the following factors are considered: (1) whether the issues in the case are purely legal ; (2) whether the agency action involved is “final agency action” within the meaning of the Administrative Procedure Act, 5 U.S.C. § 704; (3) w hether the action has or will have a direct and immediate impact upon the pl aintiff and (4) whether the resolution of the issues will promote effective enforcement and administration by the agency. Ash Creek Mining Co. v. Lujan , 934 F.2d 240, 243 (10th Cir. 1991). The district court applied the Ash Creek factors and determined that the plaintiffs’ ESA cl aims were not ripe. This court reviews the district court’s dismissal o f the plaintiffs’ ESA claims for lack of jurisdiction on ripeness grounds de novo and “findings of14 -14- jurisdictional fact for clear error.” Coalition for Sustainable Res. , 259 F.3d at 1249. The plaintiffs bear the burden of providing evidence of ripeness. Id . If a party challenges the factual basis for jurisdiction , the truthfulness of the factual allegations contained in the complaint are not pres umed. Id . This court may consider evidence not contained in the pleadings an d may resolve jurisdictional questions which do not also resolve substantive iss ues. Id

. Application of the Ash Creek factors to this case requires dismissal for lack of jurisdiction over plaintiffs’ ESA claims. 1. Purely legal issues If an issue is not purely legal, the court must exe rcise “greater caution . . . prior to concluding that [it] is ripe for review.” Coalition for Sustainable Res. , 259 F.3d at 1250 (quotation omitted). Several issu es involved in the review of plaintiffs’ ESA claims require the interpretation o f ESA regulations. For example, the parties dispute whether FWS is require d under ESA regulations to relocate wolves that attack domestic animals twice within one year and remove chronic “problem” wolves that attack livestock. 50 C.F.R. § 17.84(i)(3)(vii). If this court were to conclude that the FWS has unfett ered discretion to determine issues related to the control of wolves, plaintiffs ’ claims would fail as a matter of law. Coalition for Sustainable Res. , 259 F.3d at 1250. If, however, this court were to conclude as a matter of law that 50 C.F.R. § 17.84(i)(3)(vii) imposes15 -15- substantive requirements on the FWS, this court wou ld then be required to examine related issues which require further factua l development, i.e. what constitutes a chronic problem wolf and satisfactoryremoval of a wolf. See id

. Accordingly, this case does not involve purely lega l issues. 2. Finality of agency action To determine whether an agency action is final, thi s court examines “whether its impact is ‘direct and immediate,’ whet her the action ‘mark[s] the consummation of the agency’s decisionmaking process ,’ and whether the action is one by which ‘rights or obligations have been determined, or from which legal consequences will flow.’” Colo. Farm Bureau Fed’n v. United States Forest
Serv. , 220 F.3d 1171, 1173-74 (10th Cir. 2000) (citationomitted) (quoting
Bennett v. Spear , 520 U.S. 154, 178 (1997) andFranklin v. Massachusetts , 505 U.S. 788, 796-97 (1992)). The FWS has not yet form ally interpreted its regulations pertaining to the control of depredatin g wolves. See 50 C.F.R. § 17.84(i)(3)(vii). Because this court defers to an agency’s interpretation of its own regulations and the FWS has not finalized its interpretation of such regulations, consideration of this factor suggests the controver sy is not ripe and the federal courts lack jurisdiction over plaintiffs’ ESA claim s. See Roberts v. Colo. State Bd. of Agric. , 998 F.3d 824, 828-29 (10th Cir. 1993) (holding th at the agency’s16 -16- interpretation of its own regulations are accorded substantial deference especially when the regulations are “effectively legislative”)

. An agency’s failure to act, however, can also becom e a final agency action in three situations: 1) if the agency “affirmativel y reject[s] a proposed course of action”; 2) if the agency delays unreasonably in re sponding to a request for action; and 3) if the agency delays in responding u ntil the requested action would be ineffective. Coalition for Sustainable Res. , 259 F.3d at 1251. Plaintiffs argue the following instances of inactio n by FWS constitute final agency actions: 1) FWS’ decision, evidenced in the Clark Letter, not to remove problem wolves without further evidence of depredat ion; 2) FWS’ failure to uphold commitments made in the Clark Letter; and 3) FWS’ failure to confirm kills as wolf kills. Plaintiffs’ argument that FWS’ decision not to remo ve problem wolves, as evidenced in the Clark Letter, is a final agency ac tion lacks merit. There is no affirmative language in the Clark Letter indicating a decision by FWS not to remove problem wolves. Rather, the language of the Clark Letter supports FWS’ contention that it was still in the decision-making process and was continuing to gather information on wolf activity and depredation s. This is evidenced by the statement that FWS would “continue to . . . closely monitor[]” the wolves and by the inclusion of a list of possible future actions, including the removal of the17 -17- wolves. Moreover, the Clark Letter does not purport to support an interpretation of the ESA or relevant regulations. See Student Loan Mktg. Ass’n v. Riley , 104 F.3d 397, 405-06 (D.C. Cir. 1997) (holding that und er certain circumstances an agency letter that adopts an interpretation of law is a final agency action). Finally, FWS’ postponement of its decision to remov e the wolves did not create an unreasonable delay in agency action. FWS explai ned in the Clark Letter that the decision to continue monitoring the wolves prio r to making a decision about future action was based upon the recent removal of the adult male wolf and the uncertainty whether the adult female wolf and the p ups would continue to “localize activity near the [Diamond G] Ranch.” Ac cordingly, FWS’ failure to commit to removing the wolves in the Clark Letter w as not a final agency action. Plaintiffs’ argument that FWS’ failure to act on co mmitments made in the Clark Letter constituted a final agency action is s imilarly unavailing. FWS did not commit to any action in the Clark Letter, but r ather expressed an intention to continue to monitor the wolves and develop more inf ormation before deciding to act. Additionally, any delay in FWS’ decision-maki ng process after the issuance of the Clark Letter was not unreasonable. FWS cont inued to monitor the wolves after Diamond G cattle returned for grazing and did take active steps to stop the depredation including the lethal removal of the adu lt female wolf and one yearling.18 -18- Finally, plaintiffs’ argument that FWS’ failure to confirm specific kills as wolf kills constitutes final agency action also fai ls. While the decision to designate a kill as a wolf kill may factor into FWS ’ decision-making process regarding future control actions, it does not have any immediate impact standing alone. Plaintiffs also argue that FWS has a policyof using a 100% certainty standard to confirm wolf killings and that use of this policy is a final agency action. After reviewing the record and the materia ls that are the basis of plaintiffs’ motion to supplement, evidence of such a policy has not been presented. Accordingly, FWS’ failure to designate specific kills as wolf kills is not a final agency action. 3. Direct and immediate impact from the agency inac tion The district court found that the direct and immedi ate impact on the plaintiffs from any agency inaction was uncertain b ecause the Washakie Pack ceased to exist. Given the record before the court , the district court’s decision that the Washakie Pack ceased to exist after August1998 is not clearly erroneous. Plaintiffs, however, argue that because of FWS’ ref usal to remove problem wolves, they have suffered harm from wolf depredati ons and will continue to suffer harm from other reintroduced wolves. Given that the district court found that the Washakie Pack ceased to exist, it is uncle ar whether FWS’ delay in formulating a decision regarding the control of dep redating wolves on Diamond G19 -19- will immediately impact the plaintiffs. Because th ere is no immediate threat to the plaintiffs from the FWS’ delay, this case is no t ripe for review. See Coalition for Sustainable Res. , 259 F.3d at 1252.
4. Promotion of effective administration Addressing the merits of this case at this time wil l not promote efficacy in the administration of the Recovery Plan by FWS. As discussed above, FWS has continued to monitor the activities of the Washakie Pack on the Diamond G and to evaluate whether to take future action against t he wolves. FWS has specialized expertise in the conservation and reintroduction of the wolves and should be permitted to decide how to appropriately balance th e interests of the plaintiffs and the wolf recovery efforts. Id . at 1253. FWS has not yet formulated a definitive course of action will only undermine these efforts. Accordingly, addressing the merits of this case at this time will not increase the efficacy of the administration of the ESA.
IV. CONCLUSION For the foregoing reasons, this court affirms the district court’s dismissal of plaintiffs’ takings claims on the grounds that i t lacks subject matter jurisdiction and plaintiffs’ ESA claims as not yet ripe for revi ew.