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JEFFREY H. WOOD,

Acting Assistant Attorney General

Environment & Natural Resources Division

SETH M. BARSKY, Chief

MEREDITH L. FLAX, Assistant Chief

SARAH J. SHEFFIELD, Trial Attorney

HI Bar Number 10415

U.S. Department of Justice

Environment & Natural Resources Division

Wildlife & Marine Resources Section

Ben Franklin Station, P.O. Box 7611

Washington, D.C. 20044-7611

Telephone: (202) 305-0211

Facsimile: (202) 305-0275

Email: sarah.sheffield@usdoj.gov

Attorneys for Defendants

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

WildEarth Guardians, et al.,

Plaintiffs,

v.

Ryan Zinke, et al.,

Defendants.

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CASE NO. 4:18-cv-00048-JGZ

MOTION TO DISMISS PLAINTIFFS’ 

AMENDED COMPLAINT

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TABLE OF CONTENTS

PAGE

I. INTRODUCTION ....................................................................................................... 1

II. BACKGROUND ......................................................................................................... 2

A. Endangered Species Act........................................................................................... 2

B. Mexican Wolf........................................................................................................... 3

III. STANDARDS OF REVIEW....................................................................................... 5

IV. ARGUMENT............................................................................................................... 6

A. Plaintiffs’ Claims That Allege Violations of The ESA Should 

be Dismissed Because They Challenge Only Discretionary 

Aspects of the Plan................................................................................................... 6

B. Plaintiffs’ Claims That Allege Violations of The APA Should 

be Dismissed Because They are Unreviewable...................................................... 11

V. CONCLUSION.......................................................................................................... 15

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TABLE OF AUTHORITIES

CASES PAGE

Bennett v. Spear,

520 U.S. 154 (1997)............................................................................................... 3, 7, 12

Cascadia Wildlands v. Bureau of Indian Affairs,

801 F.3d 1105 (9th Cir. 2015) ....................................................................................... 12

Citizens to Pres. Overton Park v. Volpe,

401 U.S. 402 (1971)....................................................................................................... 14

Cmty. Fin. Servs. Ass’n of Am., Ltd. v. FDIC,

132 F. Supp. 3d 98 (D.D.C. 2015)........................................................................... 12, 13

Conservation Cong. v. Finley,

774 F.3d 611 (9th Cir. 2014) ......................................................................................... 12

Conservation Nw. v. Kempthorne,

2007 WL 1847143 (W.D. Wash. June 25, 2007) .......................................................... 14

Coos Cty. Bd. of Cty. Comm’rs v. Kempthorne,

531 F.3d 792 (9th Cir. 2008) ........................................................................................... 3

Ctr. for Biological Diversity v. Jewell,

2018 WL 1586651 (D. Ariz. Mar. 31, 2018)......................................................... 7, 8, 13

Defs. of Wildlife v. Jewell,

 2015 WL 11182029 (D. Ariz. Sept. 30, 2015).............................................................. 6, 7, 9, 12

Friends of Blackwater v. Salazar,

691 F.3d 428 (D.C. Cir. 2012)................................................................................. 12, 13

Friends of the Wild Swan v. Thorson,

260 F. Supp. 3d 1338 (D. Or. 2017)............................................................................ 7, 8

Friends of the Wild Swan v. Thorson,

2017 WL 7310641 (D. Or. Jan. 5, 2017)................................................................... 8, 10

Fund for Animals v. Rice,

85 F.3d 535 (11th Cir. 1996) ..................................................................................... 7, 13

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Gallo Cattle Co. v. U.S. Dep’t of Agric.,

159 F.3d 1194 (9th Cir. 1998) ....................................................................................... 11

Grand Canyon Trust v. Norton,

2006 WL 167560 (D. Ariz. Jan 18, 2006)..............................................................passim

Hanger v. Dep’t of Labor,

569 F.3d 898 (9th Cir. 2009) ......................................................................................... 11

Heckler v. Cheney,

470 U.S. 821 (1985)....................................................................................................... 14

Kennecott Copper Corp. v. Costle,

572 F.2d 1349 (9th Cir. 1978) ............................................................................... 7, 9, 11

Leite v. Crane Co.,

749 F.3d 1117 (9th Cir. 2014) ......................................................................................... 6

Mortensen v. First Fed. Sav. & Loan Ass’n,

549 F.2d 884 (3d Cir. 1977) ............................................................................................ 5

Nat’l Ass’n of Home Builders v. Defs. of Wildlife,

551 U.S. 644 (2007)......................................................................................................... 8

Or. Nat. Desert Ass’n v. U.S. Forest Serv.,

465 F.3d 977 (9th Cir. 2006) ................................................................................... 11, 12

Safe Air for Everyone v. Meyer,

373 F.3d 1035 (9th Cir. 2004) ................................................................................. 5, 6, 9

Strahan v. Linnon,

967 F. Supp. 581 (D. Mass. 1997)................................................................................... 7

Strickland v. Morton,

519 F.2d 467 (9th Cir. 1975) ......................................................................................... 13

Thornhill Publ’g Co. v. Gen. Tel. & Elec. Corp.,

594 F.2d 730 (9th Cir. 1979) ........................................................................................... 5

Turtle Island Restoration Network v. Nat’l Marine Fisheries Serv.,

340 F.3d 969 (9th Cir. 2003) ........................................................................................... 1

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White v. Lee,

227 F.3d 1214 (9th Cir. 2000) ......................................................................................... 5

STATUTES

5 U.S.C. §§ 701(a)............................................................................................................. 14

5 U.S.C. § 706(2)................................................................................................................. 6

16 U.S.C. § 1532(15)........................................................................................................... 1

16 U.S.C. § 1533 ................................................................................................................. 4

16 U.S.C. § 1533(a)(1) ........................................................................................................ 2

16 U.S.C. § 1533(b)(1)(A) ................................................................................................ 10

16 U.S.C. § 1533(f) ........................................................................................................... 10

16 U.S.C. § 1533(f)(1)............................................................................................... 3, 6, 13

16 U.S.C. § 1533(f)(1)(B) ........................................................................................... 5, 6, 9

16 U.S.C. § 1533(f)(4)....................................................................................................... 13

16 U.S.C. § 1539(j).............................................................................................................. 4

16 U.S.C. § 1540(g)(1)(C)............................................................................................... 3, 7

42 U.S.C. § 7604(a)(2) ........................................................................................................ 7

Pub. L. No. 100-478 (1988) ................................................................................................ 4

FEDERAL REGULATIONS

41 Fed. Reg. 17,736 (Apr. 28, 1976)................................................................................... 3

63 Fed. Reg. 1752 (Jan. 12, 1998).................................................................................................. 4

80 Fed. Reg. 2488 (Jan. 16, 2015)................................................................................... 3, 4

82 Fed. Reg. 29,918 (June 30, 2017).............................................................................................. 4

82 Fed. Reg. 57,288 (Dec, 4, 2017).......................................................................................... 4, 13

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MOTION TO DISMISS PLAINTIFFS’ AMENDED COMPLAINT

Ryan Zinke, in his official capacity as Secretary of the Department of the Interior,

the Department of the Interior, Greg Sheehan, Principal Deputy Director of the U.S. Fish 

and Wildlife Service (“FWS”), and FWS (collectively, “Defendants”) hereby move to 

dismiss the Amended Complaint (ECF No. 22) of WildEarth Guardians, Western 

Watersheds Project, New Mexico Wilderness Alliance, and the Wildlands Network 

Alliance (collectively, “Plaintiffs”) for lack of subject-matter jurisdiction pursuant to 

Rule 12(b)(1) of the Federal Rules of Civil Procedure.

SUPPORTING MEMORANDUM

I. INTRODUCTION

Plaintiffs’ challenge to the 2017 Mexican Wolf Recovery Plan (“Plan”)1should be 

dismissed for lack of subject-matter jurisdiction because neither the citizen suit provision 

of the Endangered Species Act (“ESA”) nor the Administrative Procedure Act (“APA”) 

provide a basis for jurisdiction. 

In order to bring a viable claim under the narrow waiver of sovereign immunity 

provided in the ESA’s citizen suit provision, a plaintiff must allege that the Secretary2

failed to perform a non-discretionary duty. The development and implementation of a 

recovery plan for a listed species is a non-discretionary duty, and each recovery plan 

 

1 The Plan and supporting documents are available at 

https://www.fws.gov/southwest/es/mexicanwolf/planning.html (last visited May 15, 

2018). The Plan is also included as an attachment to this motion (Exhibit A). The page 

numbers cited herein for the Plan and supporting documents refer to the PDF’s 

pagination, not the Plan’s pagination. 

2 Under the ESA, “Secretary” generally refers to the Secretaries of the Interior and 

Commerce. 16 U.S.C. § 1532(15). The Secretaries of the Interior and Commerce 

delegated their ESA responsibilities to FWS and the National Marine Fisheries Service, 

respectively. Turtle Island Restoration Network v. Nat’l Marine Fisheries Serv., 340 F.3d 

969, 973-74 (9th Cir. 2003). Because the Mexican wolf is a terrestrial species, FWS and 

the Secretary of the Interior are the applicable entities in this case. 

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must incorporate three mandatory aspects: site-specific management activities, recovery 

criteria, and estimates of costs and time required to carry out the recovery plan’s goal. 

However, the substance of the recovery plan is left to the discretion of the Secretary and 

is thus unreviewable under the ESA. Here, the Secretary developed and implemented a 

recovery plan for the Mexican wolf and incorporated the three mandatory aspects, thus 

satisfying the requirements of Section 4(f)(1) of the ESA. Because Plaintiffs challenge 

the discretionary substance of the Plan, the ESA citizen suit provision does not provide 

jurisdiction for their claim.

Plaintiffs likewise cannot avail themselves of the APA to confer jurisdiction. To 

seek judicial review under the APA, a plaintiff must challenge a final agency action. 

Here, the Plan is not final because it is a non-binding guidance document from which no 

legal consequences flow. 

For these reasons, Defendants respectfully request that Plaintiffs’ complaint be 

dismissed pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.

II. BACKGROUND

A. Endangered Species Act

Under Section 4(a) of the ESA, the Secretary is responsible for listing species as 

threatened or endangered. 16 U.S.C. § 1533(a)(1). Section 4(f)(1) of the ESA directs the 

Secretary to develop and implement a recovery plan “for the conservation and survival 

of” each species listed “unless he finds that such a plan will not promote the conservation 

of the species.” Id. § 1533(f)(1). The ESA defines “conservation” as “the use of all 

methods and procedures which are necessary to bring any endangered species or 

threatened species to the point at which the measures provided pursuant to this chapter 

are no longer necessary.” Id. § 1532(3). Section 4(f)(1) further provides that

[t]he Secretary, in developing and implementing recovery plans, shall, to 

the maximum extent practicable--

. . . 

(B) incorporate in each plan—

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(i) a description of such site-specific management actions as may be 

necessary to achieve the plan’s goal for the conservation and 

survival of the species;

(ii) objective, measurable criteria which, when met, would result in a 

determination, in accordance with the provisions of this section, that 

the species be removed from the list; and 

(iii) estimates of the time required and the cost to carry out those 

measures needed to achieve the plan's goal and to achieve 

intermediate steps toward that goal. 

16 U.S.C. § 1533(f)(1).

In relevant part, Section 11 of the ESA authorizes citizen suits “against the 

Secretary where there is alleged a failure of the Secretary to perform any act or duty 

under [Section 4] of this title which is not discretionary with the Secretary.” 16 U.S.C. § 

1540(g)(1)(C). Thus, in order to raise a viable claim under this section of the ESA citizen 

suit provision, a plaintiff must allege that the Secretary failed to perform a nondiscretionary duty mandated by Section 4. Bennett v. Spear, 520 U.S. 154, 173 (1997); 

Coos Cty. Bd. of Cty. Comm’rs v. Kempthorne, 531 F.3d 792, 809 (9th Cir. 2008).

B. Mexican Wolf

Since 1976, the Mexican wolf (Canis lupus baileyi) has been protected as an 

endangered species under the ESA. 41 Fed. Reg. 17,736 (Apr. 28, 1976); 80 Fed. Reg. 

2488 (Jan. 16, 2015). The Mexican wolf is a distinct subspecies of the southwestern gray 

wolf and historically inhabited the southwestern United States (New Mexico, Arizona, 

and Texas) and Mexico. 80 Fed. Reg. 2488. In the early and mid-1900s, Mexican wolf 

populations declined rapidly due to predator eradication. Id. By the time the Mexican 

wolf was listed as an endangered species in 1976, no wild populations were known to 

remain in either the United States or Mexico. Id.

In 1982, FWS issued its first Mexican Wolf Recovery Plan (“1982 Plan”). Plan at 

14. It did not contain all of the recovery plan elements as required by Section 4(f)(1) 

because, at that time, the recovery team could not foresee full recovery and eventual 

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delisting of the species due to its dire status. Id. The 1982 Plan, instead of providing 

recovery criteria, 3 included a “prime objective” of maintaining a captive breeding 

program and re-establishing a viable, self-sustaining population in the Mexican wolf’s 

historic range. Id. The recovery actions and time and cost estimates were developed to 

support this prime objective. Id. at 14-15.

In 1998, FWS released eleven Mexican wolves from a captive-breeding program 

into the wild in Arizona and New Mexico pursuant to ESA Section 10(j), 16 U.S.C. § 

1539(j), which established the Mexican Wolf Experimental Population Area 

(“MWEPA”). 63 Fed. Reg. 1752 (Jan. 12, 1998); 80 Fed. Reg. 2488. Since then, FWS, 

in conjunction with officials in Mexico, has conducted additional releases of captive 

wolves into the wild, and a population of Mexican wolves continues to inhabit portions of 

the MWEPA and Mexico. Id.

FWS reinitiated recovery planning in December of 2015, and hosted a series of 

workshops that were attended by FWS and Forest Service staff, the states of Arizona, 

Colorado, New Mexico, and Utah, officials from the Mexican government, and 

independent scientists from the United States and Mexico with expertise in wolves. Plan 

at 15. On June 29, 2017, FWS released the Mexican Wolf Draft Revised Recovery Plan 

(“Draft Plan”), and sought public input and independent peer review from scientists, 

states, and tribal governments.4 82 Fed. Reg. 29,918 (June 30, 2017). 

On November 28, 2017, FWS issued the Mexican Wolf Recovery Plan, First 

Revision. 82 Fed. Reg. 57,288 (Dec. 4, 2017) (Exhibit A). The Plan identifies and 

 

3 At the time the 1982 Plan was drafted, the ESA did not require that recovery plans 

incorporate “objective, measurable” recovery criteria. Section 1533(f) was amended in 

1988 to include these criteria. 16 U.S.C. § 1533, Pub. L. No. 100-478 (1988), 102 Stat. 

2306 (current version at 16 U.S.C. § 1533 (2003)).

4 The Draft Plan is available at 

https://www.fws.gov/news/ShowNews.cfm?ref=mexican-wolf-draft-revised-recoveryplan-released-for-public-comment-&_ID=36065 (last visited May 15, 2018).

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addresses threats to the species, including human-caused mortality and loss of gene 

diversity, and explains that its “recovery strategy for the Mexican wolf is to establish and 

maintain a minimum of two resilient, genetically diverse Mexican wolf populations 

distributed across ecologically and geographically diverse areas in the subspecies’ range 

in the United States and Mexico.” Plan at 10. In order to achieve the recovery goal of 

long-term survival of the species, and in compliance with the requirements of 16 U.S.C. § 

1533(f)(1)(B), the Plan incorporates downlisting and delisting recovery criteria, sitespecific management activities, and estimated costs and time. Id. at 12. In addition to the 

Plan, FWS issued two supporting documents: 1) a species Biological Report, which 

provides background, life-history, and threat assessment information, and 2) a Recovery 

Implementation Strategy (“Implementation Strategy”), which is a working document that 

details the near-term, specific activities needed to implement the recovery plan. Plan at 

5.

III. STANDARDS OF REVIEW

A motion to dismiss for lack of subject-matter jurisdiction may be brought 

pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. The plaintiff has “the 

burden of proof that jurisdiction does in fact exist.” Thornhill Publ’g Co. v. Gen. Tel. & 

Elec. Corp., 594 F.2d 730, 733 (9th Cir. 1979) (quoting Mortensen v. First Fed. Sav. & 

Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977)). 

“A Rule 12(b)(1) jurisdictional attack may be facial or factual. In a facial attack, 

the challenger asserts that the allegations contained in a complaint are insufficient on 

their face to invoke federal jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 

1039 (9th Cir. 2004) (citation omitted). When evaluating a facial attack, the court’s 

analysis is confined to the allegations in the complaint and any exhibits attached to the 

complaint. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). “By contrast, in a factual 

attack, the challenger disputes the truth of the allegations that, by themselves, would 

otherwise invoke federal jurisdiction.” Safe Air for Everyone, 373 F.3d at 1039. When 

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evaluating a factual attack, the court need not presume the truthfulness of the plaintiff’s 

allegations, and can review evidence beyond the complaint. Id. A Rule 12(b)(1) motion 

to dismiss should be granted if the complaint fails to allege facts sufficient to establish 

subject-matter jurisdiction. Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014).

IV. ARGUMENT

Plaintiffs allege that the Plan fails to comply with the ESA, and allege that this 

Court has jurisdiction under both Section 11(g)(1)(C) of the ESA and the APA, 5 U.S.C. 

§ 706(2). ECF No. 22 at 19-26.

5

 For the following reasons, neither the ESA nor the 

APA confer jurisdiction on the Court to evaluate Plaintiffs’ claims.

A. Plaintiffs’ claims that allege violations of the ESA should be dismissed 

because they challenge only discretionary aspects of the Plan.

Section 4(f)(1) of the ESA requires the Secretary to develop and implement plans 

“for the conservation and survival” of listed species. 16 U.S.C. § 1533(f)(1). To this 

end, the Secretary shall, to the maximum extent practicable, incorporate into each 

recovery plan three aspects: 1) a description of site-specific management actions as may 

be necessary to achieve the plan’s goal for the conservation and survival of the species, 2) 

objective, measurable criteria which, when met, result in a determination that the species 

be removed from the list, and 3) estimates of time and cost required to achieve the plan’s 

goal. 16 U.S.C. § 1533(f)(1)(B). Beyond these statutory requirements, the substance of 

a recovery plan is discretionary. Defs. of Wildlife v. Jewell, No. CV-14-02472-TUC-JGZ, 

2015 WL 11182029, at *6 (D. Ariz. Sept. 30, 2015) (distinguishing between the statutory 

requirements of Section 4(f), which are mandatory, and the substance of a recovery plan, 

which is discretionary)6; Grand Canyon Trust v. Norton, No. 04-cv-636PHXFJM, 2006 

 

5 The page numbers cited herein for Plaintiffs’ complaint refer to the PDF’s 

pagination, not the complaint’s pagination.

6

In this case dealing with the 1982 Plan for the Mexican wolf, this Court held that it 

had jurisdiction over a claim that the 1982 Plan lacked the non-discretionary aspects 

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WL 167560, at *2 (D. Ariz. Jan 18, 2006) (“By stating that the Secretary ‘shall’ act, the 

ESA creates a non-discretionary duty to develop and implement plans for the 

conservation and survival of endangered species. However, the substance of the plan is 

left to the discretion of the Secretary.” (emphasis added)); Ctr. for Biological Diversity v. 

Jewell, No. CV-16-00094-TUC-JGZ, 2018 WL 1586651, at *15 (D. Ariz. Mar. 31, 2018)

(“[T]he provisions of a recovery plan are discretionary, not mandatory.”); Strahan v. 

Linnon, 967 F. Supp. 581, 597-98 (D. Mass. 1997) (“[T]he content of recovery plans is 

discretionary. . . . In fact, all that is required in a recovery plan is ‘the identification of 

management actions necessary to achieve the Plan’s goals for the conservation and 

survival of the species.’”) (quoting Fund for Animals v. Rice, 85 F.3d 535, 548 (11th Cir. 

1996)). 

Because the ESA citizen suit provision confers jurisdiction on courts only when a 

plaintiff challenges non-discretionary actions, Bennett, 520 U.S. at 172, a court does not 

have jurisdiction to hear challenges to the substance of recovery plans. Norton, 2006 WL 

167560, at *2-3 (“[N]o cause of action arises under 16 U.S.C. § 1540(g)(1)(C) for the 

failure to provide for the conservation and survival of the [species], in contrast to the 

development and implementation of a plan to conserve them.”); Friends of the Wild Swan 

v. Thorson, 260 F. Supp. 3d 1338, 1343 (D. Or. 2017) (concluding that “the way in which 

the Secretary incorporates § 1533(f)(1)(B)’s requirements into recovery plans is 

discretionary and thus not reviewable”), appeal filed, No. 17-35572 (9th Cir. July 13, 

2017); Kennecott Copper Corp. v. Costle, 572 F.2d 1349, 1354 (9th Cir. 1978) (holding 

that the Clean Air Act’s analogous citizen suit provision, 42 U.S.C. § 7604(a)(2), could 

be used to challenge the EPA Administrator’s failure to take “a non-discretionary” action 

 

required by Section 4(f). Defs. of Wildlife, 2015 WL 11182029, at *9. Specifically, this 

Court determined that the 1982 Plan did not include delisting criteria or specific cost 

estimates. Id. at *3. Here, by contrast, there seems to be no dispute that the current Plan 

contains the statutory requirements. 

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mandated by the Act, but that it could not be used to challenge “the content of that 

decision”). Here, Plaintiffs allege four substantive deficiencies in the Plan and, as such, 

the Court does not have jurisdiction to hear the case. 

First, Plaintiffs contend that the Plan violates the ESA because it fails to provide a 

reasonable explanation for an alleged “departure” from the 2012 draft recovery plan. 

ECF No. 22 at 19-20. Yet there is no legal requirement that a final recovery plan must 

mirror the draft recovery plan. See Friends of the Wild Swan v. Thorson, No. 3:16-cv681-AC, 2017 WL 7310641, at *10 (D. Or. Jan. 5, 2017) (declining to review an alleged 

inconsistency between an interim recovery plan and the final recovery plan, noting that 

the agencies’ interpretation and application of these documents was discretionary), aff’d, 

260 F. Supp. 3d 1338; Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 

658-59 (2007) (declining to review an alleged change in the agency’s position over time, 

noting that “the only ‘inconsistency’ respondents can point to is the fact that the agencies 

changed their minds – something that, as long as the proper procedures were followed, 

they were fully entitled to do”). Moreover, Plaintiffs challenge the content of the Plan, 

asserting that the Plan does not include aspects that were included in the draft plan and 

fails to explain the reason for this departure. ECF No. 22 at 19-20. Because the contents 

of recovery plans are discretionary, Ctr. for Biological Diversity, 2018 WL 1586651, at 

*15, Plaintiffs’ challenge here is unreviewable under the ESA citizen suit provision.

Plaintiffs’ second and third causes of action allege that the Plan violates the ESA 

for failing to provide site-specific management actions necessary for conservation, and 

for failing to provide objective, measurable criteria necessary for delisting. ECF No. 22

at 21-23. Notably, Plaintiffs recognize that the Plan does include site-specific 

management actions and recovery criteria. ECF No. 22 at 21 (alleging deficiencies in the 

site-specific actions included in the Plan); id. at 22-23 (alleging that the recovery criteria 

included in the Plan do not address all of the threats to Mexican wolves). Plaintiffs, then, 

are not alleging that the Plan lacks these non-discretionary elements. Rather, Plaintiffs’ 

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allegations are, at bottom, allegations that the Plan does not include enough of these nondiscretionary elements to provide for the conservation and survival of the species. 

The District of Arizona has already rejected this exact argument. In Norton, 

plaintiffs challenged the recovery plan for the humpback chub, alleging, inter alia, that 

the plan failed to provide for the conservation and survival of the chub. 2006 WL 

167560, at *1. Plaintiffs argued that, even if the ESA grants the Secretary discretion as to 

how to conserve the chub, “there is still a non-discretionary duty to ensure, at minimum, 

the chub’s survival.” Id. at *3. The court disagreed, explaining that “[d]etermining how 

to provide for the conservation and survival of the humpback chub ‘requires the fusion of 

technical knowledge and skills with judgment which is the hallmark of duties which are 

discretionary.’” Id. at *2 (quoting Kennecott Copper, 572 F.2d at 1354). As such, the 

court held that it lacked jurisdiction to hear this claim because there is no cause of action

that arises under the ESA citizen suit for the failure to provide for the conservation and 

survival of a species. Id. at *3; see also Defs. of Wildlife, 2015 WL 11182029, at *6

(noting that “the Secretary retains discretion over the methods to use in species 

conservation”). Instead, the only content requirements for recovery plans are that they 

include three aspects: delisting criteria, site-specific management activities, and cost and 

time estimates. 16 U.S.C. § 1533(f)(1)(B); Norton, 2006 WL 167560, at * 3 (noting that 

the development and implementation of recovery plans is non-discretionary). 

There is no question that the Plan here includes all of the requirements that 

Congress intended FWS to incorporate.

7

 See Plan at 30-37 (detailing recovery criteria); 

 

7 To the extent that Plaintiffs are asserting that the Plan does not include the three 

mandatory aspects, Defendants dispute the truth of these allegations and attach the Plan 

as evidence that it is in compliance with the ESA statutory requirements. Safe Air for 

Everyone, 373 F.3d at 1039 (“In resolving a factual attack on jurisdiction, the district 

court may review evidence beyond the complaint without converting the motion to 

dismiss into a motion for summary judgment. . . . The court need not presume the 

truthfulness of the plaintiff’s allegations.”).

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Plan at 40-41, 43-46 (detailing site-specific activities and estimated cost and timing of 

recovery). Plaintiffs’ challenge, then, can only be viewed as a challenge to the substance 

of the Plan, which is left to the discretion of FWS and is unreviewable by a court. As the 

District of Arizona noted when it held that the substance of recovery plans was 

unreviewable, “[a]ny person would be able to challenge the substance of recovery plans 

by merely alleging that the Secretary’s plan is not only poor, but likely to lead to the 

extinction of a species.” Norton, 2006 WL 167560, at *3. Such challenges to the 

substance of a recovery plan would “substantially expand the scope of the citizen suit 

provision,” when, instead, waivers of federal sovereign immunity like the ESA citizen 

suit provision “must be strictly construed.” Id. 

Finally, Plaintiffs allege that the Plan violates the ESA for failing to use the best 

available science. ECF No. 22 at 24-26. But these allegations do not satisfy Plaintiffs’ 

burden to plead an alleged failure to comply with a non-discretionary duty because, 

unlike other subsections of Section 4,8 Section 4(f)(1) does not impose a best available 

science requirement for the development and implementation of recovery plans. See 

Norton, 2006 WL 167560, at *2 n.1 (explaining that plaintiffs’ ESA claim for failure to 

use the best scientific evidence in a recovery plan would “likely fail” because 16 U.S.C. §

1533(f) does not explicitly require that determinations in recovery plans be based on the 

best scientific and commercial data available); Friends of the Wild Swan, 2017 WL 

7310641, at *10 (“The language of § 1533(f) does not impose a [best scientific and 

commercial data requirement] with regard to the development and implementation of 

recovery plans and the court will not impose one.”). It is clear that these allegations are 

simply another attack on the substance of the Plan by questioning the science and data 

underlying FWS’s conservation and recovery decisions, actions that fall within FWS’s 

 

8 For instance, 16 U.S.C. § 1533(b)(1)(A) & (2) expressly provide that the Secretary 

shall use the best available science and commercial data for listing determinations and 

critical habitat designations. 

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discretion in developing recovery plans. Norton, 2006 WL 167560, at *2 (“Determining 

how to provide for the conservation and survival of the [listed species] ‘requires the 

fusion of technical knowledge and skills with judgment which is the hallmark of duties 

which are discretionary.’” (quoting Kennecott Copper, 572 F.2d at 1354)). Because this 

claim attacks the substance of the Plan, and because there is no best available science 

requirement for recovery plans, it is unreviewable.

In sum, the Plan complies with the non-discretionary aspects of Section 4(f)(1) by 

including delisting criteria, site-specific management actions, and time and cost 

estimates. Because Plaintiffs challenge only discretionary aspects of the Plan, which are 

unreviewable under the ESA citizen suit provision, Plaintiffs’ first cause of action should 

be dismissed for lack of subject-matter jurisdiction.

B. Plaintiffs’ claims that allege violations of the APA should be dismissed 

because they are unreviewable.

Plaintiffs’ cause of action under the APA should likewise be dismissed for lack of 

subject-matter jurisdiction because the Plan is not a final agency action and is thus 

unreviewable. Alternatively, the cause of action should be dismissed because the APA 

does not allow for judicial review where, as here, the challenged action is committed to 

agency discretion by law. 

The APA provides a “waiver of sovereign immunity in suits seeking judicial 

review of a federal agency action[.]” Gallo Cattle Co. v. U.S. Dep’t of Agric., 159 F.3d 

1194, 1198 (9th Cir. 1998). Such a waiver “will be strictly construed, in terms of its 

scope, in favor of the sovereign.” Hanger v. Dep’t of Labor, 569 F.3d 898, 903 (9th Cir. 

2009) (citation omitted). To obtain judicial review under the APA, a plaintiff must 

challenge a final agency action. Or. Nat. Desert Ass’n v. U.S. Forest Serv., 465 F.3d 977, 

987 (9th Cir. 2006). “For an agency action to be final, the action must (1) ‘mark the 

consummation of the agency’s decisionmaking process’ and (2) ‘be one by which rights 

or obligations have been determined, or from which legal consequences will flow.’” Id.

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at 982 (quoting Bennett, 520 U.S. at 178). In determining whether the second prong has 

been met, courts look to the “practical and legal effects of the agency action” and 

“whether the [action] has the status of law or comparable legal force, and whether 

immediate compliance with its terms is expected.” Id. at 987 (citation omitted).

In Bennett, the Supreme Court determined that a biological opinion constitutes 

final agency action under the second prong because it, along with an accompanying 

incidental take statement, “alter[s] the legal regime to which the action agency is subject, 

authorizing it to take the endangered species if (but only if) it complies with the 

prescribed conditions,” and thus had “direct and appreciable consequences.” 520 U.S. at 

178. In contrast, non-final agency actions “carried no direct consequences,” were “in no 

way binding,” and “in no way affected the legal rights of the relevant actors.” Id.; see 

also Cmty. Fin. Servs. Ass’n of Am., Ltd. v. FDIC, 132 F. Supp. 3d 98, 118 (D.D.C. 2015) 

(explaining that one line of analysis for evaluating whether legal consequences flow from 

an action is by inquiring whether the agency has “imposed any rights and obligations” or 

“genuinely left the agency and its decisionmakers free to exercise discretion” (citation 

omitted)). 

Here, the Plan is not a final agency action because it does not have “direct and 

appreciable legal consequences” and therefore cannot satisfy the requirements of the 

second prong. Bennett, 520 U.S. at 178. The Ninth Circuit and other jurisdictions have

repeatedly held that recovery plans provide guidance for the conservation of endangered 

and threatened species, and are not legally binding authorities. See Conservation Cong. 

v. Finley, 774 F.3d 611, 614 (9th Cir. 2014); Cascadia Wildlands v. Bureau of Indian 

Affairs, 801 F.3d 1105, 1114 n.8 (9th Cir. 2015) (“The Endangered Species Act does not 

mandate compliance with recovery plans for endangered species.”); Friends of 

Blackwater v. Salazar, 691 F.3d 428, 432-34 (D.C. Cir. 2012) (describing a recovery plan 

as a non-binding “statement of intention”). This Court has reached the same conclusion. 

Defs. of Wildlife, 2015 WL 11182029, at *6 (describing a recovery plan as a “basic road 

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map to recovery” for a species that is “not binding upon the agency”); Ctr. for Biological 

Diversity, 2018 WL 1586651, at *15 n.14 (“Recovery plans do not govern all aspects of 

recovery under the ESA, but rather are non-binding statements of intention with regards 

to the agency’s long-term goal of conservation.”).

The non-binding nature of recovery plans is further highlighted by the fact that the 

ESA does not provide a timeframe for implementation (16 U.S.C. § 1533(f)(1)), and the 

ESA also affords FWS the discretion to revise recovery plans as necessary over time. 16 

U.S.C. § 1533(f)(4). Additionally, FWS may deviate from the actions outlined in the 

recovery plan when presented with new information, and is not required by statute or 

regulation to amend the plan in order to do so. Friends of Blackwater, 691 F.3d at 434 

(“A [recovery] plan is a statement of intention, not a contract. If the plan is overtaken by 

events, then there is no need to change the plan; it may simply be irrelevant.”); Fund for 

Animals, 85 F.3d at 547 (“By providing general guidance as to what is required in a 

recovery plan, the ESA ‘breathe[s] discretion at every pore.’”) (quoting Strickland v. 

Morton, 519 F.2d 467, 469 (9th Cir. 1975)). 

Another test for determining whether legal consequences flow from an action 

looks to the “agency’s expressed intentions.” Cmty. Fin. Servs., 132 F. Supp. 3d at 118. 

Under this analysis, there are three factors for consideration: “(1) the agency’s own 

characterization of the action; (2) whether the action was published in the Federal 

Register or the Code of Federal Regulations; and (3) whether the action has binding 

effects on private parties or on the agency.” Id. (citation omitted). Application of this 

approach likewise shows that the Plan is not final agency action.

First, FWS clearly characterizes the Plan as a non-binding guidance document, 

describing it as “an effective roadmap for the recovery of a species,” and an “advisory 

document, not [a] regulatory document.” Plan at 5. Second, while a “notice of 

availability” of the Plan was published in the Federal Register, 82 Fed. Reg. 57,288, the 

Plan itself is not published there, and is instead available on the FWS website. See

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https://www.fws.gov/southwest/es/mexicanwolf/planning.html. Finally, and as explained 

in the preceding paragraphs, the Plan has no binding effects on private parties or on the 

agency. See also Plan at 5 (“A recovery plan does not commit any entity to implement 

the recommended strategies or actions contained within it for a particular species, but 

rather provides guidance for ameliorating threats and implementing proactive 

conservation measures, as well as providing context for implementation of other sections 

of the [ESA].” (emphasis added)). 

Whether evaluating the “direct and appreciable legal consequences” or the 

“agency’s expressed intentions,” under either analysis, the Plan does not satisfy the 

second prong for final agency action. This is because recovery plans are non-binding 

guidance documents, which an agency may freely revise or even deviate from, and which 

carry no direct legal consequences. As such, the Plan cannot be considered a final 

agency action and is thus unreviewable under the APA.

Alternatively, Plaintiffs’ second cause of action should be dismissed because the 

substance of the Plan is committed to agency discretion by law and therefore 

unreviewable. A challenged agency action is not reviewable under the APA if the action 

is committed to agency discretion by law. 5 U.S.C. §§ 701(a), 704. Agency action is 

deemed to be committed to agency discretion when “statutes are drawn in such broad 

terms that in a given case there is no law to apply.” Citizens to Pres. Overton Park v. 

Volpe, 401 U.S. 402, 410 (1971) (citation omitted); see also Heckler v. Cheney, 470 U.S. 

821, 830 (1985) (explaining that agency action is deemed committed to agency discretion 

when there is “no meaningful standard against which to judge the agency’s exercise of 

discretion”).

Here, Plaintiffs’ challenge to the contents of the Plan is unreviewable because it 

challenges discretionary aspects of the Plan. See, e.g., Conservation Nw. v. Kempthorne, 

No. 04-1331-JCC, 2007 WL 1847143, at *4 (W.D. Wash. June 25, 2007) (holding that an 

agency’s timeline for the implementation of a recovery plan is committed to agency 

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discretion by law and thus unreviewable under the APA). Instead of challenging nondiscretionary aspects of the Plan that have clear standards with which to measure 

compliance (for example, whether the Plan included the three mandatory aspects the 

Secretary shall incorporate into a recovery plan), Plaintiffs challenge the substance of the 

Plan, which has no meaningful standard against which to judge FWS’s exercise of 

discretion and is thus unreviewable under the APA. 

V. CONCLUSION

For the foregoing reasons, Defendants respectfully request that the Court dismiss 

Plaintiffs’ Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1). 

Dated: June 4, 2018

Respectfully submitted,

JEFFREY H. WOOD,

Acting Assistant Attorney General

Environment & Natural Resources Division

SETH M. BARSKY, Chief

MEREDITH L. FLAX, Assistant Chief

/s/ Sarah J. Sheffield 

SARAH J. SHEFFIELD

Trial Attorney HI Bar Number 10415

U.S. Department of Justice

Environment & Natural Resources Division

Wildlife & Marine Resources Section

Ben Franklin Station 

P.O. Box 7611

Washington, DC 20044-7611

Phone: (202) 305-0211

Fax: (202) 305-0275

Attorneys for Federal Defendants

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CERTIFICATE OF SERVICE

I hereby certify that on June 4, 2018, I electronically filed the foregoing with the 

Clerk of the Court using the CM/ECF system, which will send notification of such to the 

attorneys of record.

/s/ Sarah J. Sheffield

Sarah J. Sheffield

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