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Matthew K. Bishop, admitted pro hac vice

Montana Bar No. 9968

Western Environmental Law Center

103 Reeder’s Alley

Helena, Montana 59601

Tel: 406-324-8011

bishop@westernlaw.org

Counsel for Plaintiffs in No. 18-00048

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

WildEarth Guardians, a non-profit 

organization, et al.,

 

 Plaintiffs,

vs.

 

David Bernhardt, as Secretary of the 

Department of the Interior, et al.,

 Federal-Defendants.

No.CV-18-00048-JGZ

(member case: consolidated 

with No. CV-18-00047-JGZ)

MEMORANDUM IN 

SUPPORT OF MOTION 

FOR SUMMARY 

JUDGMENT

(Hearing Requested)

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TABLE OF CONTENTS

TABLE OF AUTHORITIES................................................................................ ii

LIST OF EXHIBITS ........................................................................................... iv

INTRODUCTION .................................................................................................1

BACKGROUND....................................................................................................2

I. The ESA, recovery plans, and delisting criteria..........................................2

II. Recovery planning for the Mexican wolf......................................................5

III. Guardians’ challenge to the 2017 recovery plan..........................................8

STANDARD OF REVIEW....................................................................................9

ARGUMENT .........................................................................................................9

I. The recovery plan does not include delisting criteria addressing all 

threats to Mexican wolves ............................................................................9

A. No delisting criteria to address genetic threats................................ 10

1. Only effort, not results are required ........................................... 12

2. No accounting of the genetic status of Mexican wolves at 

the time of recovery..................................................................... 14

3. No connectivity criteria............................................................... 15

B. No delisting criteria to address the threat from human-caused 

losses.................................................................................................... 17

C. No delisting criteria to address the threat from inadequate 

regulatory mechanisms ...................................................................... 19

D. No habitat-based delisting criteria.................................................... 23

CONCLUSION................................................................................................... 25

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TABLE OF AUTHORITIES

CASES:

Center for Biological Diversity v. Jewell, 

2018 WL 1586651 (D. Ariz. 2018) ...................................................... 5, 17, 20

Citizens to Preserve Overton Park, Inc. v. Volpe, 

401 U.S. 402 (1971)..........................................................................................9

Defenders of Wildlife v. Babbitt, 

130 F. Supp.2d 121 (D.D.C. 2001).............................................. 3, 4, 5, 18, 25

Defenders of Wildlife v. Jewell, 

No. CV-14-02472-JGZ (D. Ariz. 2015).............................................................6

Fund for Animals v. Babbitt, 

903 F. Supp. 96 (D.D.C. 1995)........................................ 3, 4, 5, 18, 22, 23, 25

Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv., 

378 F.3d 1059 (9th Cir. 2004)..........................................................................2

Greater Yellowstone Coalition. v. Servheen, 

665 F. 3d 1015 (9th Cir. 2011).........................................................................9

League of Wilderness Defenders v. U.S. Forest Serv., 

549 F.3d 1211 (9th Cir. 2008)..........................................................................9

NEC v. Dombeck, 

304 F.3d 886 (9th Cir. 2002)............................................................................9

Oregon Natural Resources Council v. Daley, 

6 F. Supp.2d 1139 (D. Or. 1998)................................................................... 22

Southwest Center for Biological Diversity v. Babbitt, 

1999 WL 33438081 (D. Ariz. 1999) ............................................................ 3, 5

TVA v. Hill, 

437 U.S. 153 (1978)..........................................................................................2

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STATUTES:

5 U.S.C. § 706(2)(A) ..............................................................................................9

16 U.S.C. § 1533(a)(1)...........................................................................................4

16 U.S.C. §1553(f) .................................................................................................1

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

16 U.S.C. § 1533(f)(1)(B)(ii) ....................................................................... 3, 4, 13

16 U.S.C. § 1540(g)(1)(C)......................................................................................8

FEDERAL REGISTER:

80 Fed. Reg. 2488 (January 16, 2015) .................................................................5

85 Fed. Reg. 20967 (April 15, 2020).....................................................................2

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LIST OF EXHIBITS1

Exhibit A Declaration of Kim Crumbo

Exhibit B Declaration of Greta Anderson

Exhibit C Declaration of Nathan Newcomer

Exhibit D Declaration of Madeline Carey

Exhibit E Declaration of John Horning 

 1 These Exhibits are properly before this Court because they are provided for 

the sole purpose of demonstrating Plaintiffs in No. 18-00048, WildEarth 

Guardians et al., meet the minimum requirements for organizational and 

individual Article III standing.

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INTRODUCTION

The Mexican wolf is one of the most endangered species in North 

America despite over twenty years of captive breeding and reintroduction 

efforts. Today, there are less than 200 individuals in the wild and their 

ability to survive and fully “recover” as envisioned by the Endangered Species 

Act (“ESA”) remains uncertain. This is due to the population’s low genetic 

diversity and small population size, excessive human-caused losses (including 

illegal killings and agency removals), inadequate regulations, and other 

threats. 

The experts say recovery of Mexican wolves is still possible within the 

next several decades but only if the U.S. Fish and Wildlife Service (“the 

Service”) moves quickly to alleviate the threats. The best way to do this is by 

ensuring: (a) there are adequately sized and genetically diverse populations 

in the wild (the genetic health of the captive population continues to decline, 

so time is of the essence); (b) populations are separated but connected to one 

another through effective natural migration; (c) wolves are protected from 

human-caused losses; and (d) sufficient habitat remains available. 

The recovery plans required by section 4(f) of the ESA, 16 U.S.C. 

§1533(f), are critical to this effort because they are the agency’s “roadmap” to 

recovery. An important component of these roadmaps are the “objective, 

measurable criteria” that – when met – result in a determination that the 

species is fully recovered and can be delisted. These criteria must address the 

threats to the species and must be expressed quantitatively, whenever 

possible because they are the thresholds that establish what needs to occur 

before a species can be delisted. The importance of having science-based 

criteria in recovery plans that address all threats and inform all recovery 

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actions, therefore, cannot be overstated. 

In this case, WildEarth Guardians et al. (“Guardians”), challenge the 

Service’s November, 2017 recovery plan for the Mexican wolf (“recovery 

plan”) which serves as the Service’s “roadmap for the long-term conservation 

and recovery” of the subspecies. 85 Fed. Reg. 20967, 20968 (April 15, 2020).

As outlined below, this recovery plan violates the ESA because it fails to 

include delisting criteria addressing all threats to Mexican wolves. 

BACKGROUND

I. The ESA, recovery plans, and delisting criteria. 

The ESA is “the most comprehensive legislation for the preservation of 

endangered species ever enacted by any nation.” TVA v. Hill, 437 U.S. 153, 

179 (1978). The ESA was enacted to forestall the extinction of species, 

whatever the cost, and allow species to recover to the point where the 

protections afforded by the ESA are no longer necessary. Gifford Pinchot 

Task Force v. U.S. Fish & Wildlife Serv., 378 F.3d 1059, 1070 (9th Cir. 2004). 

Survival and recovery are two different (though complementary) goals of the 

ESA. Id. To achieve these objectives, the ESA directs the Service to develop 

and implement recovery plans for listed species.16 U.S.C. § 1533(f)(1). 

Recovery plans are considered “one of the most important tools” 

required by the ESA because they are a “roadmap” that lays out where the 

Service needs to go and how best to get there. D014124. Though largely 

guidance (not regulatory) documents, Congress nonetheless directed that all 

recovery plans include, to the maximum extent practicable, certain 

provisions, including “site-specific management actions” necessary to achieve 

recovery, an estimate of time and costs, and “objective, measurable criteria 

which, when met” would result in a determination that the species is 

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recovered and qualifies for delisting. 16 U.S.C. § 1533(f)(1)(B)(ii). 

The directive to include delisting criteria in recovery plans is nondiscretionary. The “word ‘shall’ is an imperative denoting a definite 

obligation,” Southwest Center for Biological Diversity v. Babbitt, 1999 WL 

33438081 at *5 (D. Ariz. 1999), and the ESA’s use of the phrase “to the 

maximum extent practicable” does “not permit an agency unbridled 

discretion.” Defenders of Wildlife v. Babbitt, 130 F. Supp.2d 121, 131 (D.D.C. 

2001). The phrase indicates, rather, “a strong congressional preference that 

the agency fulfill its obligation to the extent that it is possible or feasible.” 

Fund for Animals v. Babbitt, 903 F. Supp. 96, 111 (D.D.C. 1995). The plain 

language of the ESA thus demonstrates Congress’ intention that recovery 

plans “incorporate delisting criteria where possible or feasible,” Southwest 

Center for Biological Diversity, 1999 WL 33438081 at *5, and these criteria 

“must be directed towards the goal of removing the endangered or threatened 

species from the list.” Fund for Animals, 903 F. Supp. at 111. 

Relevant here, the delisting criteria required in recovery plans must be 

“objective and measurable” and “address threats to the species in terms of 

each of [the ESA’s five listing and delisting] factors outlined in section 4(a)(1) 

of the ESA.” D014198 (emphasis added). As explained by the Service, 

delisting criteria must include “an explicit analysis of threats under the five 

listing factors in addition to evaluation of population or demographic 

parameters.” D014199. “By establishing criteria for each of the five 

listing/delisting factors that are currently relevant to the species . . . [the 

recovery plan] is “more likely to ensure that the underlying causes of decline 

have been addressed and mitigated prior to considering a species for 

delisting.” Id. 

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This approach – the Service explains – should greatly simplify the 

delisting process: because the ESA directs that a species change in status 

should only occur when the recovery plan’s criteria are met, see 16 U.S.C. § 

1533(f)(1)(B)(ii), and a “change in status [is only] driven by a threats 

assessment, threats based recovery criteria are the best way to satisfy this 

goal.” D002701. “Thus, every factor seen as a threat should include a 

corresponding recovery criterion.” Id. “[H]abitat destruction might be 

addressed by the permanent protection of habitat; stochastic events might be 

addressed through redundancy; etc.” Id.; see also E000606 (email 

emphasizing need to “develop recovery criteria based on specific threats 

relevant to the 5 listing factors.”). 

The five ESA threat factors that must be addressed in delisting criteria 

include: (1) the present or threatened destruction of habitat or range; (2) 

overutilization for various purposes; (3) disease or predation; (4) the 

inadequacy of existing regulatory mechanisms; or (5) other natural or 

manmade factors. 16 U.S.C. § 1533(a)(1). “Since the same five statutory 

factors must be considered in delisting as in listing . . . [the Service], in 

designing objective, measurable criteria, must address each of the five 

statutory delisting factors and measure whether threats . . . have been 

ameliorated.” Fund for Animals, 903 F. Supp. at 111 (citations omitted); see

also Defenders of Wildlife, 130 F. Supp.2d at 133 (same); D014198 (guidance 

explaining the same); D014200 (same). A recovery plan, therefore, that 

“recognizes specific threats to the conservation and survival of a threatened 

or endangered species, but fails to recommend corrective action or explain 

why it is impracticable or unnecessary to recommend such action, would not 

meet the ESA’s standard.” Fund for Animals, 903 F. Supp. at 108. “Nor 

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would a [recovery plan] that completely ignores threats to [the] conservation 

and survival of a species.” Id.; see also Defenders of Wildlife, 130 F. Supp.2d 

at 133 (setting aside recovery plan that failed to include criteria addressing

all threats); Southwest Center for Biological Diversity, 1999 WL 33438081 at 

*6 (same). 

II. Recovery planning for the Mexican wolf. 2

The first recovery plan produced for the Mexican wolf was released in 

1982, see D015046, though it was more of a “survival” plan because at the 

time the Service saw “no possibility for complete delisting of the Mexican 

wolf” and felt that ensuring the “survival of the Mexican wolf” was the most 

that could be achieved. D015070. Because the 1982 plan was “[w]ritten 

against the backdrop of near-extinction,” it did not provide any delisting 

criteria. Center for Biological Diversity, 2018 WL 1586651 at *7. The Service’s 

recommendations were thus made with the “caveat that future revisions to 

the plan would be necessary to fully implement reintroduction and recover 

the species.” Id. 

Over the next several decades, the Service continued to breed Mexican 

wolves in captivity and in 1998 began releasing wolves into the wild in New 

Mexico and Arizona. Id. With no updates or revisions to the 1982 recovery 

plan, however, the Service continued to implement the recovery program 

without a “roadmap” for recovery and without delisting criteria. See id. at *8. 

In the early 1990s and early 2000s the Service tried to revise and update the 

 2 For more background information, see Guardians’ statement of facts 

(“Facts”), the background section in Center for Biological Diversity v. Jewell, 

2018 WL 1586651 (D. Ariz. 2018), and the 2015 endangered subspecies 

listing, see D015940 (80 Fed. Reg. 2488 January 16, 2015). 

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1982 recovery plan and develop delisting criteria, but to no avail. See Facts at 

¶¶ 45-47. 

In 2010, the Service convened a team of the leading wolf scientists and 

experts known as the Mexican wolf recovery team’s “science and planning 

subgroup” or “SPS” (hereinafter “science team”) to prepare a new, revised 

recovery plan for the Mexican wolf that included science-based delisting 

criteria in accordance with the ESA. Facts at ¶¶ 56-58. After extensive 

research, modeling, and careful assessment of threats, the science team 

produced a complete (albeit draft) revised recovery plan for the Mexican wolf

with delisting criteria and presented its findings in March, 2013. See

D015865 (science team’s presentation). 

The delisting criteria developed by the science team included requiring: 

(a) at least three separate but connected populations of Mexican wolves in the 

wild (totaling at least 750 wolves); (b) natural Mexican wolf dispersal

between the populations of at least one “genetically effective migrant” every 

generation (breeding required); (c) human-caused losses of less than 20 

percent per year; and (d) approved and confirmed state management plans 

and regulatory protections after delisting. See D008078–79; see also Facts at 

¶¶ 60-76 (science team’s rationale for delisting criteria).

Following issuance of the science team’s draft recovery plan and its 

science-based delisting criteria, however, the team was disbanded and work 

on the recovery plan was stopped. See Facts at ¶¶ 77-78. Litigation over the 

Service’s failure to prepare a recovery plan subsequently ensued, see 

Defenders of Wildlife v. Jewell, No. CV-14-02472-JGZ (D. Ariz. 2015), and this 

case eventually settled when the agency agreed to produce a revised recovery 

plan by November 30, 2017. See id. In revising the plan, however, the Service 

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chose to start from square one, abandon the science team’s work (including 

its draft recovery plan and science-based delisting criteria), and not

reconvene the science team or otherwise consult the leading wolf scientists 

that had worked on (or contributed to) the earlier plan. See Facts at ¶ 78. Nor 

were many of the former members invited to participate in the formulation of 

a new recovery plan. See id. 

Instead, the Service chose to formulate a new recovery plan with input 

from the affected states and Mexico. The Service held a series of six closeddoor meetings and “workshops” limited to certain Service employees and 

representatives from the states of Arizona, New Mexico, Utah, Colorado, and 

Mexico from December, 2015 through February, 2017. See Facts at ¶¶ 79-90. 

During this time, the states took an active role in developing a new recovery 

plan and, in particular, formulating new delisting criteria. See id. 

In June, 2017, the Service announced the availability of an entirely

new draft recovery plan for public review and comment. See D009660. In 

response, the Service received numerous comments from the scientific 

community (including former science team members and wolf experts) and 

peer review members questioning the validity and adequacy of the new plan 

and, in particular, the plan’s delisting criteria. See Facts at ¶¶ 92-107. A final 

recovery plan was published in November, 2017, see D009169. 

The 2017 recovery plan’s new delisting criteria represented a 

significant departure from the science team’s previous criteria in the 2013 

draft recovery plan. Compare D009179 (new criteria) with D008078 (science 

team’s criteria). Mexican wolves will now be considered for delisting if: (a) 

there is only one population in the United States averaging 320 wolves; (b) 

one population in Mexico averaging 200 wolves; (c) a sufficient number of 

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Mexican wolves are released from captivity into the wild to result in 22 

Mexican wolves “surviving to breeding age” in the United States and 37 in 

Mexico (but breeding not required); and (d) a commitment from states, tribes, 

and Mexico that they “will” ensure regulatory mechanisms are in place in 

areas necessary for recovery. D009199–9200.

III. Guardians’ challenge to the 2017 recovery plan.

In 2018, Guardians – a coalition of organizations dedicated to ensuring 

the recovery of Mexican wolves with members who have Article III standing,

see Exhibits A-E – challenged the Service’s recovery plan, including the 

delisting criteria. See Doc. 22. The Service subsequently moved to dismiss 

this case for lack of jurisdiction (Doc. 24) and in March, 2019 this Court 

issued an order granting in part and denying in part this motion (Doc. 34). 

Following this order, the sole issue remaining in this case is whether 

the recovery plan’s delisting criteria address all threats to the Mexican wolf. 

Specifically, Guardians alleges a “recovery plan’s criteria for delisting must 

address the threats to the listed species” and the “Service’s criteria in the 

2017 recovery plan does not address all threats to the Mexican wolves.” Doc. 

22 at 22. This Court agreed that this claim can proceed under the ESA’s 

citizen suit provision, 16 U.S.C. § 1540(g)(1)(C), noting that jurisdiction 

under the ESA is proper to the extent Guardians’ alleges the Service “failed 

to address all threats to Mexican wolves in its recovery plan” and “the agency 

failed to address problems that the agency itself identified, without offering 

an explanation as to why it was not practicable for the agency to do so . . .” 

Doc. 34 at 10–11. Here, the Service’s recovery plan fails to include delisting 

criteria to address significant threats to Mexican wolves that the agency 

itself identified.

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STANDARD OF REVIEW

ESA claims are reviewed under the Administrative Procedures Act 

(“APA”). NEC v. Dombeck, 304 F.3d 886, 891 (9th Cir. 2002). The APA directs 

courts to hold unlawful and set aside agency action found to be “arbitrary, 

capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 

U.S.C. § 706(2)(A). A court must not substitute its judgment for that of the 

agency but it must nonetheless engage in a “thorough, probing, in depth 

review,” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 

(1971), and “ensure the agency considered the relevant factors and 

articulated a rational connection between the facts found and the choices 

made.” Greater Yellowstone Coalition. v. Servheen, 665 F. 3d 1015, 1023 (9th 

Cir. 2011). An agency’s action is arbitrary if it relied “on factors which 

Congress has not intended it to consider, entirely failed to consider an 

important aspect of the problem, offered an explanation for its decision that 

runs counter to evidence before the agency, or is so implausible that it could 

not be ascribed to a difference in view or the product of agency expertise.” Id. 

Courts must also reject agency decisions based on an “erroneous 

interpretation of law.” League of Wilderness Defenders v. U.S. Forest Serv., 

549 F.3d 1211, 1215 (9th Cir. 2008).

ARGUMENT

I. The recovery plan does not include delisting criteria 

addressing all threats to Mexican wolves.

The Service’s recovery plan includes delisting criteria tied to population 

size and trend and includes a promise that states (and Mexico) will 

eventually invoke regulatory protections. But that is all. See D009179–80. 

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The recovery plan is devoid of delisting criteria to address: (A) genetic 

threats; (B) the threat from human-caused losses; (C) the threat from existing 

inadequate regulatory mechanisms; and (D) the threat from loss of suitable 

habitat, as required by the ESA. 

A. No delisting criteria to address genetic threats. 

The genetic threats facing Mexican wolves are serious. See Facts at ¶¶

14-22. Carroll (2014) explains that the genetic threats “are greater for the 

Mexican wolf than for other wolf subspecies because [seven] wild founder 

individuals were the source for all wolves in both the captive and 

reintroduced populations.” R001482. 

The genetic challenges facing Mexican wolves include inbreeding 

(mating of close relatives), loss of heterozygosity (loss of genetic diversity or 

decrease in the proportion of individuals that have different alleles for a 

specific gene), and the loss of adaptive potential. See Facts at ¶¶ 14-22

(describing genetic threats). Many of these negative effects are already 

evident in the captive and wild populations of Mexican wolves, see id., and 

need to be addressed quickly. As explained by the science team: “The genetic 

health of the captive populations continues to decline each year – inbreeding 

is increasing and heterozygosity is decreasing. We need to quickly establish 

and grow new populations in the wild.” D015875.

The best available science reveals addressing the genetic threat to 

Mexican wolves requires a multi-faceted approach that includes establishing 

“adequately sized and genetically diverse core populations,” as well as 

ensuring the populations are separated but “connected to one another 

through effective migration.” D015867. For this reason, the science team 

concluded that multiple separate (but connected) population need to be 

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established in the wild: in order to “address extinction risk and genetic health 

. . . [three] populations for a total of [approximately] 750 wolves with the 

possibility of one additional population in Mexico” would be required and 

there must be “[e]ffective dispersal between populations.” D015875. The 

science team also expressed the need to “quickly establish and grow new 

populations in the wild” in response to the declining health of the captive 

population. Id. 

This is why the science team’s 2012 draft recovery plan explicitly

incorporated criteria to address genetic threats, including criteria: (1) on 

population size and configuration, i.e., a meta-population of at least three

separate subpopulations; and (2) effective migration and connectivity 

between the subpopulations via natural dispersal at “a rate of at least [one] 

genetically effective migrant every generation . . .” D008079; see also

D008083 (criteria); D015869 (same). As defined by the science team, a 

“genetically effective migrant” is “a wolf that breeds in a non-natal population 

and produces at least [one] pup that survives to at least December 31 of the 

year of its birth,” i.e., a wolf that actually contributes genetic material and 

breeds in the wild. Id. “Dispersal of even a single migrant into such inbred 

populations can dramatically affect genetic structure and population 

performance.” R001482. 

This delisting criteria (and the science team’s draft recovery plan that 

included it), however, was ultimately abandoned by the Service at the 

bequest of the states. See E015804; Facts at ¶¶ 87-89. The 2017 recovery plan 

removed the genetic criteria (discussed above) and replaced them with 

nothing comparable, see id. The new criteria only require: (a) the 

establishment of two isolated populations of wolves, one in the United States 

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and one in Mexico that reach certain population targets (320 and 200, 

respectively); and (b) releases from the captive Mexican wolf population “of a 

sufficient number of wolves to result in 22 released Mexican wolves surviving 

to breeding age in the United States population” and 37 released wolves 

“surviving to breeding age” in Mexico. D009199. But the term “surviving to 

breeding age” does not mean what it says, i.e., no actual breeding or 

improvement in the genetic status of wolves in the wild is required. The term 

means “a pup that lives two years to the age of breeding or an adult or subadult that lives for a year following its release.” Id. This delisting criteria 

does not address the genetic threat facing Mexican wolves for three reasons. 

1. Only effort, not results are required.

First, even though the Service concedes that released Mexican wolves 

are only able to influence the gene diversity of the population if they “survive 

and breed” in the wild, D0009203 (emphasis added), and even though the 

Service knows that released wolves “only contribute their gene diversity to 

the recipient population when they breed and produce offspring,” D009194

(emphasis added), its delisting criteria requires no evidence of breeding or 

new offspring. 

The focus, rather, is solely on the effort the Service undertakes to 

improve the genetic status of Mexican wolves in the wild (by releasing 

wolves), not the results of those efforts. See D009199. The criteria only 

requires the release of a certain number of wolves that “live two years to the 

age of breeding” or an adult or sub-adult “that lives for a year following its 

release.” D009179. As the Service admits: “We did not require that a released 

or translocated wolf survive and produce offspring in the population, as the 

basis for recovery criteria.” D0009203. The Service thus assumes that by 

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releasing “x” number of pups or sub-adults or adults that they will achieve “y” 

number of wolves who produce a litter and contribute their genes to the wild 

population. But no breeding or actual exchange of genetic material is 

required. Nor is any improvement in the genetic status of the wild 

population. This is thus an arbitrary approach that violates the ESA. See 16 

U.S.C. § 1533(f)(1)(B)(ii) (recovery plan must include criteria that “when met” 

would result in delisting decision). 

Indeed, the Service’s own recovery guidance explains that recovery plan 

criteria are results oriented, i.e., “values” or “standards” by which “it is 

determined that an objective has been reached.” D014196. The purpose of 

establishing criteria in the recovery plan is to set a standard that must be 

achieved before delisting. The criteria include “measurable thresholds . . . 

needed to achieve the recovery vision.” D016981; see also D014197 (same). 

“All actions should feed achievement of the criterion.” D002701. A recovery 

plan “identifies the threats, identifies the criterion at which point . . . the 

threat will be sufficiently minimized, and all of the actions necessary to 

achieve said criterion . . . .” Id. As such, simply agreeing to release a certain 

number of wolves that survive to a certain age (the effort) – as required by 

the recovery plan’s delisting criteria – is insufficient. It fails to ensure the 

achievement of any real, on-the-ground results when it comes to addressing 

genetic threats. As explained by the biologists, the recovery plan’s criteria

does not include any “requirement[] that the released wolves contribute 

genetically to the wild population via successful reproduction.” C009239; see 

also E024999 (peer review comment noting and questioning the same).

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2. No accounting of the genetic status of Mexican 

wolves at the time of recovery. 

Second, because the Service focused solely effort (not results), the 

delisting criteria do not account for the actual genetic status of Mexican 

wolves at the time of recovery. 

As the Service is well-aware, there are a number of ways to objectively 

measure the genetic health of the Mexican wolf population in the wild. These 

include founder genome equivalents (“FGEs”), the amount of gene diversity 

retained, the mean inbreeding (co-efficient), population mean kinship, and 

effective migration. See Facts at ¶¶ 17-22. These are practicable, objective 

measures of the genetic health of the wild population that are already being 

measured and tracked by the Service, see R006152, and can easily be 

converted into delisting criteria to address genetic threats. 

In fact, every year the Service receives objective information about the 

genetics of the wild population, including the FGE, gene diversity, population 

mean kinship, inbreeding coefficient, and information on effective migration, 

see, e.g., R006152, R006154, so the “genetic status of the wild population can 

now be directly and economically assessed using modern genetic techniques.” 

C001951. But none of this is incorporated into the delisting criteria and the 

actual genetic health of the Mexican wolf population is not taken into account 

– at all. As explained during the peer review: the criterion requiring released 

wolves “surviv[e] to breeding age is no guarantee that a wolf will actually 

incorporate its genes to a population . . . So although this criterion is 

measurable, I am not sure it’s the best measurement to make even with 

estimates of post-release survival and reproduction. If genetic diversity is the 

key metric here, why not define a target based directly on it and not an 

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indirect measure that may or may not reflect population status?” E024999 

(emphasis in original). It makes “more sense to define a population target 

(e.g., observed heterozygosity), then adjust the releases accordingly instead of 

relying on assumptions about how well released animals integrate their 

genes into the population.” Id. 

In other words, the delisting criteria should actually address genetic 

threats “on a metric related to the actual genetic status of the wild population 

at the time of recovery, not a criterion that only records the history of 

recovery efforts (such as the number of individuals released).” C001951; see 

also C009239 (comment from biologists questioning criterion that fails to 

require actual contributions of genetic material to wild population). 3

3. No connectivity criteria.

Third, as the Service is well-aware, restoring “connectivity between 

fragmented populations is an important tool for alleviating genetic threats to 

endangered species.” R001481; see also Facts at ¶¶ 24-28. “[I]ncreased 

dispersal between wild populations would help address the severe genetic 

threats evidenced in Mexican wolf populations.” C001954; see also E000866 

(explaining that connectivity reduces extinction risk by mitigating inbreeding 

depression (fitness) and slowing the loss of heterozygosity and adaptive 

 3 The Service insists the number of releases is a sufficient metric to “achieve 

gene diversity in the wild population of approximately 90 percent of that 

retained in the captive population.” D009203. But this is simply an 

assumption tied to a level of effort that ignores the key metric needed to 

address the genetic threat. See E024999. Wolves must survive and breed in 

order to influence genetic diversity. D009194. Further, aiming to achieve a 

gene diversity of 90 percent of the captive population (which is already 

experiencing genetic decline) sets the wrong baseline standard against which 

the genetic health of the population should be measured. See C001951-

001952.

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potential). 

The Service itself recognized that Mexican wolves are threatened by 

their small population size and isolation and require multiple, separate

populations with some level of effective migration or connectivity between 

them to address genetic threats, lower the risk of extinction, and ensure 

recovery. D015960; see also R001481 (Carroll (2014) explaining how 

increased dispersal rates among small populations greatly lowered extinction 

risk). Restoring connectivity between subpopulations is thus critical to 

recovery. As explained by the science team, “[e]nsuring [Mexican wolf] 

populations are connected to one another through effective natural 

migration” is needed to alleviate the threats to the subspecies. D015867; see 

also Facts at ¶¶ 24-28 (importance of connectivity). This is why the science 

team put together a comprehensive memo on the need for connectivity 

criteria, see D004114, and why the team explicitly insisted on connectivity 

criteria being included in the recovery plan. See E000866–67 (explaining 

rationale for connectivity criteria). But the 2017 recovery plan is devoid of

any connectivity criteria because the states objected it. See Facts at ¶¶ 87-90.

In the recovery plan, therefore, the Service recognizes the importance 

of restoring connectivity and its influence on gene diversity, see D009194, and 

acknowledges the “benefits of habitat connectivity” and says it will “work to 

maintain and enhance connectivity within and between Mexican wolf 

populations to improve gene diversity of Mexican wolves,” D009195, but no 

connectivity criteria is included. This was a political decision that generated 

much criticism from the scientific community. See Facts at ¶¶ 104-106.

In lieu of connectivity criteria, the Service’s recovery plan relies solely 

on its releases of captive wolves and translocations to address genetic threats 

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of the wild populations. D009194. The Service considers this “genetic 

management” to be an effective alternative to natural dispersal and 

connectivity. See id. But as previously explained, this approach which is 

premised solely on the amount of releases (the effort) is a fallacy that does 

not address genetic threats. See supra sections II.A.1, II.A.2.4

B. No delisting criteria to address the threat from humancaused losses.

The Service has long recognized that human-caused losses are a 

“significant” threat and “the biggest source of Mexican wolf mortalities since 

the reintroduction began in 1998.” D015954; see also Facts at ¶¶ 29-34. 

Human-caused losses are any “events that function as mortalities to the 

population,” D016936, including illegal killings, the intentional killing and 

removal of Mexican wolves in the wild in response to livestock conflicts, 

removals due to dispersal outside designated boundaries, vehicular collisions, 

accidental shooting and misidentification (from coyote hunters), and 

incidental trapping. See D015954, D015956-15957. 

For this reason, the Service explains that “[m]ortality rates will need to 

be sufficiently low to achieve recovery criteria because they are the primary 

indicator of wolf population trajectory.” D009200. “Mexican wolf populations 

are highly sensitive to adult mortality . . . [so] [f]or populations to grow or 

maintain themselves at demographic recovery targets, mortality rates will 

 4 The Service’s reliance human intervention after delisting also conflicts with 

the ESA. As this Court previously noted, relying on artificial humanintervention in the form of releases and translocations post de-listing 

conflicts with the ESA’s definition of “recovery,” which is designed to promote 

populations that are “self-sustaining without human interference.” See Center 

for Biological Diversity, 2018 WL 1586651 at *4 (citation omitted).

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need to stay below threshold levels” identified in Miller (2017), D008981, 

which is roughly 25 percent, see D009050. 

To address this threat, the science team recognized the need to include 

delisting criteria in the recovery plan that specifically targets human-caused 

losses (from sources such as vehicular collision, illegal killing, and 

management removals) because ensuring such losses are not excessive is 

critical to alleviating extinction risk. D015858. Criterion three in the draft 

recovery plan was designed with this goal in mind: “The estimated annual 

rate of human-caused losses averaged over an 8-year period [must be] . . . less 

than 20% as measured by a statistically reliable monitoring effort.” D008079. 

The science team explained this is “the greatest rate of anthropogenic 

mortality and removal that a Mexican wolf population could have and still be 

expected to have approximately 75% or greater chance of being stable or 

increasing.” Id. 

In the 2017 recovery plan, however, the Service arbitrarily chose to 

abandon the recommendations of its own science team and remove this 

criterion. In its place, the Service relies solely on demographic criteria 

(population size and trend) as a surrogate for assessing human-caused losses. 

This is a major oversight and violation of the ESA. See, e.g., Defenders of 

Wildlife, 130 F. Supp.2d at 133 (rejecting Service’s use of population numbers 

as a surrogate for addressing ESA’s threat factors); Fund for Animals, 903 F. 

Supp. at 112 (same).

As the Service’s own science team recognized, the threat from humancaused losses is “different than overall mortality” levels and cannot be 

captured by demographic criteria alone. See D015874. Research also 

demonstrates there is a “well-established relationship between [humanCase 4:18-cv-00048-JGZ Document 42 Filed 04/17/20 Page 23 of 30
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caused losses] and long term wolf population viability” and “extinction risk is 

highly sensitive to adult mortality (more so than census population size) and 

that controlling human-caused losses is the best way to promote dispersal 

which is critical (but difficult to achieve). D016501. 

For these reasons, using population numbers as a surrogate to address 

this threat – as the Service is attempting to do here – is inappropriate. 

Recovery plan criterion must specifically target the specific threat (humancaused losses) it identifies. See id. This comports with the Service’s own 

recovery guidance, which explicitly recognizes the need for each criterion to 

address each specific threat. See D014199. This same guidance also expressly 

recommends against doing what the Service did here, i.e., using population 

numbers as a surrogate for a species like Mexican wolves, which is heavily 

reliant on captive breeding programs. See id. Doing so is problematic because 

while population numbers may increase (due to captive releases), the threat 

from human-caused losses remains unabated. See id. 5

C. No delisting criteria to address the threat from 

inadequate regulatory mechanisms. 

The Service considers the lack of adequate regulatory mechanisms to 

be one of the most serious threats to Mexican wolves because – even with the 

ESA’s regulatory protections – wolves continue to be killed (and removed) in 

 5 The science team initially debated whether this threat should be addressed 

through recovery actions, criterion, or both. See E000492 (notes); D016928 

(additional “final” notes but ones that mistakenly confuse benefits/concern 

discussion); D014237 (notes on debate). The team ultimately chose to include 

it as a criterion, see D008079, to call human-caused losses out as a threat 

impacting population viability and because not doing so conflict with 

guidance from Fund for Animals that demographic criteria alone are 

insufficient to address specific threats. E00492; D016928 (same). 

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the United States and Mexico. D015955. This is likely to increase after 

delisting because any state regulations or penalties (assuming they exist) 

“would be less severe than current Federal penalties under the [ESA].” Id. 

“Thus, existing state penalties in Arizona and New Mexico would not serve as 

an adequate deterrent to illegal take.” Id. This is why Service concluded that 

absent the ESA’s regulatory protections “killing of wolves in the United 

States would increase, potentially drastically, because penalties are less 

severe than current Federal penalties.” Id. The lack of existing regulatory 

protections is also a threat to Mexican wolves in Mexico. See id. 

The Service’s recovery planning guidance emphasizes the importance of 

addressing this threat in the delisting criteria. See D014199. The Service 

explains that even if a species is recovered and the population(s) have 

rebounded, the threat from increased take of the species “could recur after 

delisting if adequate regulatory mechanisms have not been put in place.” Id. 

This is why, when preparing the recovery plan and brainstorming 

about how to address threats in the criteria, the Service explicitly recognized 

the importance of ensuring state management plans and regulations are 

“sufficient” for delisting. See D015861. There is also a need to evaluate the 

adequacy of other “existing” plans, regulations, actions, and policies that may 

(individually or in the aggregate) pose a threat to Mexican wolf recovery. See 

id. These include, but are not limited to, law enforcement policies, predator 

control, livestock depredation and protection policies, existing wolf 

management regulations and policies (including the restrictions on 

movement and natural dispersal in the existing 10(j) rule), lack of funding for 

reintroduction, and unlimited coyote hunting in occupied habitat. Id.; see also

Center for Biological Diversity, 2018 WL 1586651 at *13 (holding that the 

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Service’s 10(j) rule was inadequate and failed to further the conservation of 

the species). 

In order to address the threat from inadequate regulatory mechanisms, 

the science team insisted on criteria requiring “approved” state and tribal 

management plans and regulations, as well as an agreement with Mexico, be

in place prior to delisting. See D008079. The team explained that “Serviceapproved state and tribal management plans codified by local statutes, and 

an agreement with Mexico such as an MOU” would need to be in place “to 

ensure viable populations can be maintained and are highly unlikely to need 

the protection of the ESA again.” E019277; see also Facts at ¶¶ 72-74(plans 

and regulatory mechanisms must be “approved” and “confirmed”). 

The Service even outlined what would be required to comprise an 

adequate state management plan: “Components of an adequate plan will 

include assurances that: (1) the natural dispersal rate required for delisting 

is not precluded by [human-caused losses]; and, (2) management targets for 

population size are sufficiently large relative to delisting criteria and 

[human-caused loss] rates are sufficiently low to ensure that there is no 

greater than a 10% chance that the Mexican wolf will fall below the recovery 

criteria within a 10-year period. The best available science should be used to 

establish the long-term population target size and acceptable rates of 

[human-caused losses].” D007845; see also D008094 (same); D008079 (same).

This is typically how the threat from inadequate regulatory 

mechanisms are addressed recovery plan criteria, i.e., management plans and 

regulations for the species (after delisting) are reviewed and approved, 

confirmed, and demonstrated to be successful. See, e.g., D007734 (criteria for 

river minnow); D007735 (same for Florida manatee); D007738 (same for sea 

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turtle). 

Here, however, the Service removed this delisting criterion to address 

this specific threat. In its place, the Service simply requires states, tribes and 

Mexico to ensure – at some future date – that they will have regulatory 

mechanisms in place to protect Mexican wolves in the wild in areas it deems 

“necessary for recovery.” See D009200.6 “[W]e will ensure that the state and 

tribal agencies . . . have adequate regulations in place to prohibit or regulate 

human-caused mortality of Mexican wolves in those areas necessary for 

recovery [and] . . .[w]e will collaborate with these agencies during the 

implementation of the recovery plan as needed to prepare for a change in 

management . . . .” D009204–05 (emphasis added). Mexico “will also ensure 

that regulations are in place . . . .” D009205. 

This approach is facially inadequate because it is premised entirely on 

what may occur in the future, i.e., what plans states, tribes, and Mexico will

eventually develop after delisting. There are no specifics or details – let alone 

any information – on what regulatory mechanisms would be required to 

ensure the recovery of the Mexican wolf in the wild once federal protections 

are removed. This is arbitrary. See Fund for Animals, 903 F. Supp. at 113 

(rejecting similar approach in grizzly bear recovery plan); see also cf. Oregon 

Natural Resources Council v. Daley, 6 F. Supp.2d 1139, 1154–55 (D. Or. 

1998)(rejecting Service’s attempt to rely on future plans and efforts that are 

not “currently operational”). 

As noted in Fund for Animals, the “promise” that future plans and 

 6 The Service added the qualifier “in areas necessary for recovery” at the last 

minute but never defines what it means. See E022841. 

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regulatory mechanisms will be developed “suggests that the [Service] still has 

not gathered sufficient data.” 903 F. Supp. at 113. To say, therefore, that 

future plans and regulatory mechanisms adequately address the threat from 

inadequate “existing” regulatory mechanisms “is paradoxical.” Id. The 

Service simply cannot address the threat of inadequate existing regulatory 

mechanisms by relying on state or Mexican management plans that have yet 

(if ever) to be developed. 7 

D. No habitat-based delisting criteria. 

“Wolves are not habitat specialists but do require adequate prey, large 

areas, and protections from humans.” D015866. The Service’s 2017 Biological 

Report found that one of the “most important stressors, or conditions, that 

may influence the recovery potential of the Mexican wolf” is the need for 

“adequate habitat availability and suitability.” D008979. 

Mexican wolf recovery, in particular, will require large areas of suitable 

habitat, which for wolves means “forested, montane terrain containing 

adequate biomass of wild prey (elk, white-tailed deer, mule deer, and other 

smaller prey) to support a wolf population.” D008979–80. Suitable habitat for 

wolves must also have “minimal roads and human development, as human 

access to areas inhabited by wolves can result in wolf mortality by facilitating 

 7 Concerns about the adequacy of regulatory mechanisms in Mexico were 

expressed throughout this process. See Facts at ¶¶ 92-93. Further, as noted 

during peer review, “the U.S. has no authority over how wolves are managed 

in Mexico, regardless of MOUs or a recent history of dedicated recovery 

efforts.” E025001. The Service’s reliance on Mexico for recovery efforts is thus 

misplaced. See, e.g., Fund for Animals, 903 F. Supp. at 115 (faulting the 

Service for failing to explain why Canadian grizzly bears were relevant to 

recovery in the United States). 

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illegal killing.” D008980; see also Facts at ¶¶ 43, 92-98 (expressing concerns 

about habitat availability due to climate change, poor conditions in Mexico,

and restrictions on dispersal north of Interstate-40). 

As explained in the Service’s 2017 biological report: “Successful 

Mexican wolf recovery will require that Mexican wolf populations occupy 

large areas of ecologically suitable habitat. Prey availability will need to be 

adequate to support populations, and land tenure and management . . . will 

need to support the occupancy and management of Mexican wolves across the 

landscape.” D008981. The future loss of “ecologically suitable” habitat for 

Mexican wolves in both the United States and Mexico is thus a specific threat 

that the Service itself has identified. See id. This is why ensuring “adequate 

habitat availability to support viable Mexican wolf populations” is an explicit 

recovery objective in the recovery plan. D009198.

The recovery plan, however, does not include any habitat-based 

delisting criteria. See D009198-009200. The recovery plan includes a number 

of “actions” needed to ensure adequate habitat availability exists to support 

Mexican wolf recovery, including a general need to “maintain and protect” 

habitat in the United States and Mexico, improve livestock management, and 

“maintain or improve” native prey populations. D009212–13; see also

D009242 (recovery implementation plan listing various actions). But such 

actions are not only vague and non-committal, they are untethered to the 

delisting criteria. 

Indeed, there are no delisting criteria pertaining to the size and 

location of areas and habitat needed to protect Mexican wolves in the United 

States or Mexico. Nor are there any delisting criteria to ensure adequate prey 

species exist or any prescriptive limits on human access and livestock 

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management within Mexican wolf habitat. This is a major oversight. See

Fund for Animals, 903 F. Supp. at 112–13 (setting aside recovery plan for 

failing to include habitat-based delisting criteria). 

CONCLUSION

For the forgoing reasons, Guardians respectfully requests this Court 

issue an order: (1) declaring the Service violated the ESA; and (2) remanding 

the matter back to the Service to develop and incorporate delisting criteria 

into the recovery plan that address all threats to the Mexican wolf (or, in the 

alternative, provide an adequate explanation as to why it is not practicable to 

do so). See, e.g., Defenders of Wildlife, 130 F. Supp. 2d. at 134 (ordering 

similar relief). 

Respectfully submitted this 17th day of April, 2020. 

/s/ Matthew K. Bishop

Matthew K. Bishop

Counsel for Plaintiffs in No. 18-00048

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