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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 59603

Tel: 406-324-8011

bishop@westernlaw.org

John R. Mellgren, admitted pro hac vice

Oregon Bar No. 114620

Western Environmental Law Center

1216 Lincoln Street

Eugene, Oregon 97401

Tel: 541-359-0990

mellgren@westernlaw.org

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

WildEarth Guardians, a non-profit 

organization; Western Watersheds 

Project, a non-profit organization; New 

Mexico Wilderness Alliance, a nonprofit organization; and the Wildlands 

Network, a non-profit organization, 

 

 Plaintiffs,

vs.

 

Ryan Zinke, as Secretary of the 

Department of the Interior; the U.S. 

Department of the Interior, a federal 

department; Greg Sheehan, as Acting 

Director of the U.S. Fish and Wildlife 

Service; and the U.S. Fish and Wildlife 

Service, a federal agency,

 Federal-Defendants.

No. CV-18-00048-JGZ

RESPONSE IN 

OPPOSITION TO 

FEDERAL-DEFENDANTS’ 

MOTION TO DISMISS

(Oral Argument Requested) 

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TABLE OF CONTENTS

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

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

STANDARD OF REVIEW................................................................................................. 2

ARGUMENT ...................................................................................................................... 3

I. The Service’s recovery plan is challengeable under the ESA......................................... 3

A. The Service has a non-discretionary duty to include actions necessary for 

conservation and objective delisting criteria in recovery plans................................. 4

B. The Service has a non-discretionary duty to utilize the best available science in 

developing recovery plans. ...................................................................................... 10

II.The Service’s recovery plan is challengeable under the APA. ..................................... 13

CONCLUSION ................................................................................................................. 17

CERTIFICATE OF SERVICE.......................................................................................... 18

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TABLE OF AUTHORITIES

CASES

Alaska v. Lubchenco,

 723 F.3d 1043 (9th Cir. 2013) .................................................................. 15

Bennett v. Spear,

 520 U.S. 154 (1997) ......................................................................... passim

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

 132 F. Supp. 3d 98 (D.D.C. 2015) ........................................................... 16

Coos County Board of County Com’rs v. Kempthorne,

 531 F.3d 792 (9th Cir. 2008) ................................................................... 11

Center for Biological Diversity v. Jewell,

 15-cv-00019-JGZ .................................................................................. 3,15

Ctr. for Biological Diversity v. Norton,

 254 F.3d 833 (9th Cir. 2001) .................................................................. 3,5

Defenders of Wildlife v. Babbitt,

 130 F. Supp. 2d 121 (D.D.C. 2001)................................................. passim

Defenders of Wildlife v. Hall,

 565 F.Supp.2d 1160 (D. Mont. 2008) ..................................................... 14

Defenders of Wildlife v. Jewell,

 2016 WL 7852469 (D. Ariz. Oct. 18, 2016) ............................................ 10

Friends of the Wild Swan v. Thorson,

 260 F.Supp.3d 1338 (D. Or. 2017) ..................................................... 8,9,16

Fund for the Animals v. Babbitt,

 903 F. Supp. 96 (D.D.C. 1995) ....................................................... passim

Grand Canyon Trust v. Norton,

 2006 WL 167560*5 (D. Ariz. 2006) (D. Ariz. 2006) ....................... 6,8,9,11

Greater Yellowstone Coalition v. Servheen,

 665 F.3d 1015 (9th Cir. 2011) .............................................................. 3,15

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Havasupai Tribe v. Provencio,

 876 F.3d 1242 (9th Cir. 2017) ................................................................. 13

Leite v. Crane Co.,

 749 F.3d 1117 (9th Cir. 2014) .................................................................. 2

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

 465 F.3d 977 (9th Cir. 2006) .................................................................. 16

Organized Village of Kake v. U.S. Dept. of Ag.,

 795 F.3d (9th Cir. 2015) ........................................................................... 2

Sackett v. EPA,

 132 S.Ct. 1367 (2012) ............................................................................. 16

Southwest Ctr. for Biological Diversity v. Babbitt,

 1999 WL 33438081*6 (D. Ariz. 1999) (D. Ariz. 1999) ...................... 6,7,9

Strahan v. Linnon,

 967 F. Supp. 581 (D. Mass. 1997) ........................................................... 8

U.S. Army Corps of Engineers v. Hawkes,

 136 S.Ct. 1807 (2016) ............................................................................. 16

STATUTES

5 U.S.C. § 704 ............................................................................................... 13

5 U.S.C. § 706 ................................................................................................. 1

16 U.S.C. § 1532 ............................................................................................. 3

16 U.S.C. § 1533 ...................................................................................... passim

16 U.S.C. § 1540 ........................................................................................... 1,3

Pub. L. 95-632 (1978) ..................................................................................... 5

Pub. L. 100-478 (1988).................................................................................... 5

FEDERAL REGULATIONS

50 C.F.R. § 401.01 .......................................................................................... 3

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50 C.F.R. § 402.02 .......................................................................................... 3

50 C.F.R. § 424.11 ........................................................................................ 12

59 Fed. Reg. 34,270 (July 1, 1994) .............................................................. 10

82 Fed. Reg. 30,502, 30,553 (June 30, 2017) .............................................. 14

OTHER

H.R. Rep. No. 95-1805 (1978) ....................................................................... 5

Sen. Rep. No. 100-240 (1988) ....................................................................... 5

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INTRODUCTION

This Court should deny Federal-Defendants’ (“the Service’s”) Rule 

12(b)(1) motion to dismiss WildEarth Guardians’ (“Guardians’”) amended 

complaint for lack of subject-matter jurisdiction. This case challenges the 

Service’s 2017 Mexican wolf recovery plan (“2017 recovery plan” or “recovery 

plan”). See Doc. 24-2. Guardians alleges the recovery plan is arbitrary, 

unlawful, and should be set aside and remanded to the Service. Doc. 22 at 26. 

Guardians is pursuing four causes of action under the Endangered 

Species Act (“ESA’”), 16 U.S.C. § 1540(g)(1)(C), and the Administrative 

Procedures Act (“APA”), 5 U.S.C. § 706(2)(A). Specifically, Guardians’ alleges

the Service’s recovery plan fails to include two of the three mandatory aspects 

required by section 4(f)(1)(B) of the ESA: (1) site-specific management actions 

necessary to achieve the conservation goals for Mexican wolves; and (2) 

objective, measureable criteria for delisting. See 16 U.S.C. §§ 1533(f)(1)(b)(i), 

(ii); Doc. 22 at 21–23. Evidence in the record will reveal that while the

Service’s recovery plan includes “actions” and “criteria” it does not include 

actions necessary for the recovery or objective, measureable criteria for 

delisting as required by the ESA. The Service’s recovery plan also fails to 

utilize the best available science on the recovery needs of Mexican wolves, as 

revealed by the published, peer reviewed literature. See Doc. 22 at 24–26. 

The “unexplained inconsistency” between the Service’s 2012 draft recovery 

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plan – which was produced by scientific experts – and the Service’s 2017 

recovery plan is also grounds for declaring the recovery plan arbitrary and 

unlawful under the APA. See Organized Village of Kake v. U.S. Dept. of Ag., 

795 F.3d 966, 966 (9th Cir. 2015).

The Service’s Rule 12(b)(1) motion asks this Court to dismiss this case 

for allegedly failing to identify the violation of a “non-discretionary duty”

under the ESA or “final agency action” under the APA. The Service’s motion

is without merit and should be denied.

STANDARD OF REVIEW

The district court reviews a facial attack to subject matter jurisdiction 

in a Rule 12(b)(1) motion “[a]ccepting the plaintiff's allegations as true and 

drawing all reasonable inferences in the plaintiff's favor, [and] the court 

determines whether the allegations are sufficient as a legal matter to invoke 

the court's jurisdiction.” Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 

2014). The Service asserts this “court need not presume the truthfulness of 

the plaintiff’s allegations” because this is a “factual” attack. Doc. 24 at 10–11,

14 n.7. But the evidence relied on (the 2017 recovery plan) does not contradict 

Guardians’ factual allegations, which are sufficient for subject-matter 

jurisdiction. This Court should therefore treat the motion as a facial attack 

and accept all allegations as true. Leite, 749 F.3d at 1121.

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ARGUMENT1

I. The Service’s recovery plan is challengeable under the ESA.

The ESA provides a cause of action against the Service where there is 

an alleged failure to comply with a “non-discretionary” duty. 16 U.S.C. § 

1540(g)(1)(C).2 A non-discretionary duty is one of obligation, not discretion, 

identified by Congress’s use of “shall.” Bennett v. Spear, 520 U.S. 154, 172 

(1997). Congress’s use of “shall” in section 4 of the ESA, for example, imposes 

a non-discretionary duty on the Service to designate critical habitat, id., 

respond to listing petitions, Ctr. for Biological Diversity v. Norton, 254 F.3d 

833, 837 (9th Cir. 2001), and utilize the best available science, Greater 

Yellowstone Coalition v. Servheen, 665 F.3d 1015, 1024 (9th Cir. 2011).

Pursuant to section 4(f) of the ESA – at issue here – Congress directed 

that the Service “shall” develop and implement recovery plans for the 

conservation of listed species. See 16 U.S.C. § 1533(f)(1).3 Congress also 

directed that these recovery plans “shall” contain “to the maximum extent 

 1 Please see this Court’s related 10(j) decision, Center for Biological Diversity 

v. Jewell, 15-cv-00019-JGZ (Doc. 200), for background information on 

Mexican wolves, listing under the ESA, and previous recovery efforts.

2 The Secretary of the Interior is responsible for implementing the ESA but 

delegated that duty to the Service. 50 C.F.R. § 402.01(b). Where the ESA uses 

“Secretary” Guardians substitutes “Service” to reflect this delegation.

3 “Conservation” is synonymous with “recovery” in the ESA. 50 C.F.R. § 

402.02; 16 U.S.C. § 1532(3). The terms are thus used interchangeably.

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practicable,” three mandatory aspects: (1) site-specific management actions 

necessary to achieve the plan’s conservation goals; (2) criteria that when met, 

would result in the removal of a species from the ESA’s list; and (3) time and 

cost estimates. 16 U.S.C. §§ 1533(f)(1)(B)(i)–(iii).4

Notably, the Service concedes these statutory directives are “nondiscretionary” and subject to review under the ESA. See Doc. 24 at 6, 11, 20. 

The Service also admits there is a non-discretionary duty “to incorporate 

three mandatory aspects” into recovery plans. Id. The Service nonetheless 

asserts there is no cause of action under the ESA because “the substance” of a 

recovery plan is discretionary. Id. According to the Service, once it develops a 

plan that purportedly includes the “three mandatory aspects,” the court is 

powerless to review the legal challenge. Doc. 24 at 13. The Service also 

maintains there is no duty to utilize the best available science in recovery 

planning. The Service is wrong on both accounts.

A. The Service has a non-discretionary duty to include 

actions necessary for conservation and objective delisting 

criteria in recovery plans.

Guardians’ challenges the Service’s development of a recovery plan that 

 4 The phrase “to the maximum extent practicable” does not permit “unbridled 

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

2001). “It imposes a clear duty on the agency to fulfill the statutory command 

to the extent that it is feasible or possible.” Id. Here, the Service never 

demonstrated that providing site-specific management actions necessary for 

recovery and criteria for delisting “would be impracticable.” Doc. 22 at 21, 23.

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fails to include two of the “three mandatory aspects” required by the ESA: (1) 

actions necessary for the conservation of Mexican wolves; and (2) criteria 

that, when met, supports delisting. Doc. 22 at 21, 22. 

The plain language of the ESA is clear: the Service “shall” prepare a 

recovery plan for the “conservation” of Mexican wolves, see 16 U.S.C. § 

1533(f)(1), and “shall, to the maximum extent practicable,” include “sitespecific management actions” necessary “to achieve the plan’s conservation” 

goals and criteria that “when met, would result” in the removal of a species 

from the ESA’s list, 16 U.S.C. §§ 1533(f)(1)(B)(i), (ii). “Shall means shall.” Ctr. 

for Biological Diversity, 254 F.3d at 837 (quotation omitted).

The text of the ESA is supported by its legislative history. Congress 

amended the ESA to add recovery plans to the Service’s non-discretionary 

duties in 1978. Pub. L. 95-632 (1978). The intent of these amendments was to 

“require the Secretary to develop and implement recovery plans . . . designed 

to ensure the conservation or survival of each listed species.” H.R. Rep. No. 

95-1805, at 28 (1978). Congress amended the ESA again in 1988 to add nondiscretionary components to recovery plans, see Pub. L. 100-478 (1988), 

including the two aspects at issue here. The “[i]ncorporation of this 

information will ensure that plans are as explicit as possible in describing the 

steps to be taken in the recovery of a species.” Sen. Rep. 100-240, at 9 (1988). 

The Service’s statement, therefore, that there is “no question” the 

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recovery plan “includes all of the requirements that Congress intended,” Doc. 

24 at 14, because it includes generic “actions” and “criteria” is misleading. 

Congress directed that recovery plans include more than generic actions or 

criteria – they shall include “actions” necessary “to achieve the plan’s 

conservation” goals and criteria that “when met, would result” in the removal 

of a species from the ESA’s list. 16 U.S.C. §§ 1533(f)(1)(B)(i), (ii). These

duties, like other section 4 obligations, are thus “non-discretionary” and 

properly reviewed under the ESA. See Fund for the Animals v. Babbitt, 903 F. 

Supp. 96, 104 (D.D.C. 1995) (reviewing contents of recovery plan to evaluate 

compliance with non-discretionary ESA duties); Southwest Ctr. for Biological 

Diversity v. Babbitt, 1999 WL 33438081, *6 (D. Ariz. 1999) (same); Defenders 

of Wildlife, 130 F. Supp. 2d 121, 131-132 (D.D.C. 2001) (same); see also Grand 

Canyon Trust v. Norton, 2006 WL 167560, *5 (D. Ariz. 2006) (recognizing 

section 4(f)’s content requirements as non-discretionary duties).

As explained in Fund for the Animals, the ESA requires more than the 

identification of garden-variety “actions.” The actions identified must be 

necessary to achieve a recovery plan’s goals for conservation, and a plan that 

“recognizes specific threats to the conservation [of a listed species] . . . but 

fails to recommend corrective action . . . would not meet the ESA’s standard.” 

903 F. Supp. at 108; see also Defenders of Wildlife, 130 F. Supp. 2d at 132 

(same). “Nor would a [recovery] plan that completely ignores threats to [the] 

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conservation and survival of a species.” Id. A recovery plan that fails to 

include criteria “directed towards the goal of removing” a species from the list

must also fail. Id. at 111; see also Southwest Ctr. for Biological Diversity, 

1999 WL 33438081 at *6 (evaluating whether recovery plan includes 

adequate delisting criteria); Defenders of Wildlife, 130 F. Supp. 2d at 134 

(setting aside recovery plan for lack of adequate delisting criteria).

These cases are consistent with the Service’s own recovery policy. See 

Exhibit (“Ex.”) A. The Service’s policy explains that while recovery plans are 

guidance, not regulatory, documents there are “statutory requirements” or 

“sideboards” that must be incorporated into recovery plans. Id. at 1.2-3. 

These include the ESA’s directive to include “actions” necessary to conserve 

the species and delisting criteria. See id. at 1.2-1. In the Service’s own words: 

“The ESA requires that recovery plans include the actions that may be 

necessary to achieve recovery,” id. at 5.1-4, and “[d]eveloping recovery 

criteria that are both objective and measurable is a statutory requirement in 

the ESA for recovery plans,” id. at 5.1-14.

Indeed, any interpretation to the contrary would undermine the ESA’s 

conservation objective. The Service could develop “recovery plans” in name 

only and plans that are void of meaningful “actions” and “criteria” to conserve 

listed species. While the Service certainly has “discretion as to the substance 

of the ultimate decision” it does not have the discretion “to ignore the 

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required procedures of decision making.” Bennett, 520 U.S. at 1166. 

For support, the Service relies heavily on Grand Canyon Trust, 2006 

WL 167560 at *2–3. But the allegations in that case were different. There, 

the plaintiffs made a more general argument that the humpback chub plan 

failed to conserve the species. Id. at *2. The court rejected this broad attack 

on summary judgment and concluded there was no cause of action “for a 

failure to provide for the conservation” of the species (unlike a specific

challenge to the development of a recovery plan at issue here). Id. at *3. 

Relevant here, in Grand Canyon Trust, the court ultimately set aside the 

Service’s recovery plan for failing to include the requisite time and costs 

estimates (the third “mandatory aspect” required by section 4(f) of the ESA). 

See id. at *5. In so doing, the court recognized jurisdiction under the ESA

because the Service had failed to “comply with [its] non-discretionary duty” 

under section 4(f) of the ESA. Id. This is precisely the situation here.5

In Friends of the Wild Swan v. Thorson, 260 F.Supp.3d 1338 (D. Or. 

2017), appeal docketed, No. 17-35572 (9th Cir. July 13, 2017), the district 

 5 The Service’s reliance on Strahan v. Linnon, 967 F. Supp. 581, 597–98 (D. 

Mass. 1997), is also misplaced. There, the court rejected the plaintiff’s 

insistence that certain, specific measures be included in a recovery plan. Id. 

at 597. The Court agreed, however, with Fund for the Animals and held that 

a recovery plan is required to include actions necessary to achieve the plan’s 

conservation goal. Id. The Court also assumed jurisdiction and evaluated 

whether the requisite conservation actions and delisting criteria were 

included in the challenged recovery plan. See id. at 597–99. 

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court did find that a plaintiff’s challenge to a bull trout recovery plan failed to 

qualify as a “non-discretionary” duty. See id. at 1343. In so doing, however, 

the court recognized a citizen’s ability to challenge a recovery plan if it fails to 

incorporate “one of the [three] requirements” listed in section 4(f)(1)(B) of the 

ESA – the very allegation here – but noted that the only deficiencies alleged 

in that case related to areas within the Service’s discretion. Id. at 1341. The 

district court in Friends of the Wild Swan also recognized the plaintiff’s 

ability to amend the complaint and “assert additional facts” to show a 

violation of a non-discretionary duty. Id. at 1343. The allegations in this case, 

by contrast, are properly pled and targeted at two of the “three mandatory 

aspects” required for all recovery plans. See Doc. 22 at 21, 22. 

Further, even if one assumes, arguendo, that the underlying 

allegations in Friends of the Wild Swan are analogous, the holding in that 

case – which is currently up on appeal and pending before the Ninth Circuit –

is in tension with the majority of district court cases recognizing that section 

4(f)(1)(B) of the ESA imposes non-discretionary obligations on the Service

that are reviewable under the ESA. See Fund for the Animals, 903 F. Supp. 

at 104–07, 111–12; Southwest Ctr. for Biological Diversity, 1999 WL 

33438081 at *6; Defenders of Wildlife, 130 F. Supp. 2d at 131–32; Grand 

Canyon Trust, 2006 WL 167560 at *5.

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B. The Service has a non-discretionary duty to utilize the best 

available science in developing recovery plans.

The Service maintains there is no mandatory duty to utilize the best

available science in recovery plans and thus no cause of action under the 

ESA. Doc. 24 at 15. This, however, contradicts the Service’s own statements 

and commitments to this Court about how the 2017 recovery plan for 

Mexican wolves would be prepared. See Defenders of Wildlife v. Jewell, 2016 

WL 7852469, at *7 (D. Ariz. Oct. 18, 2016). The Service agreed to prepare the 

recovery plan in accordance with its peer review policy, see id., and this policy 

expressly acknowledges and requires the Service to make “biological 

decisions,” including decisions that involve recovery planning, upon “the best 

scientific and commercial data available,” 59 Fed. Reg. 34,270 (July 1, 1994). 

The ESA “requires” that all biological decisions be based on the best available 

science and that recovery plans will utilize the “expertise of and actively 

solicit independent peer review” to obtain “all available scientific and 

commercial information.” Id.

Indeed, the 2017 recovery plan speaks for itself: “In accordance with 

section 4(f)(1) of the ESA and to the maximum extent practicable, recovery 

plans delineate actions which the best available science indicates are 

required to recover and protect listed species.” Doc. 24-2 at 3; see also Ex. A at 

5.1-2 (same), at 5.2-2 (Service must “ensure recovery plans are based on the 

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best scientific information and judgment”).

Relying on dictum in a footnote in Grand Canyon Trust, the Service 

maintains section 4(f)(1) of the ESA does not “explicitly” require recovery

plans use the best available science. Doc. 24 at 15. But this is misleading and

incorrect. Section 4(f)(1)(b)(ii) of the ESA requires the Service to incorporate 

objective, measurable delisting criteria into a recovery plan “in accordance 

with the provisions of this section,” i.e., in accordance with section 4 of the 

ESA which does require use of the best available science. 16 U.S.C. § 

1533(f)(1)(B)(ii). As explained by the Ninth Circuit, “in accordance with” in 

section 4(c) of the ESA refers to “the decision making process [of Section 4] in 

general” and the use of the best available science is critical to that process. 

Coos County Board of County Com’rs v. Kempthorne, 531 F.3d 792, 806–07 

(9th Cir. 2008). The district court in Grand Canyon Trust never addressed 

this argument and refused to “consider” the issue. See 2006 WL 167560 at *2.

Notably, the Service’s policy explains that the delisting criteria 

required in recovery plans “must address threats to the species” from the five 

factors outlined in section 4(a)(1) of the ESA. Ex. A at 5.1-16; see also Fund 

for the Animals, 903 F. Supp. at 111 (same); Defenders of Wildlife, 130 F. 

Supp. 2d at 133 (same). It is well established that consideration of these five 

factors must be done in accordance with the best available science. 16 U.S.C. 

§ 1533(b). As such, the Service cannot logically comply with its obligation to 

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incorporate objective delisting criteria into a recovery plan that addresses the 

five factors without first utilizing the best available science on those threats. 

See Defenders of Wildlife, 130 F. Supp. 2d at 133 (setting aside recovery plan

for failure to address five threat factors). The ESA’s requirement to utilize 

the best available science ensures the statute is not being “implemented 

haphazardly, on the basis of speculation or surmise.” Bennett, 520 U.S. at 176

Indeed, any attempt by the Service to read the best available science

requirement out of section 4(f) would trigger an absurd result. The ESA 

directs the Service to utilize the best available science when making 

“recovery” decisions for delisting. 16 U.S.C. § 1533(c)(2). “A species may be 

delisted on the basis of recovery only if the best scientific and commercial 

data available indicate that it is no longer endangered or threatened.” 50 

C.F.R. § 424.11(d)(2). Recovery plans, in turn, are the underlying documents 

the Service uses to support “recovery” decisions. A recovery plan “delineates, 

justifies, and schedules the research and management actions necessary to 

support recovery of a species.” Fund for the Animals, 903 F. Supp. at 104 

(citing Ex. A at 1.1-1). A recovery plan is thus “one of the most important 

tools to ensure sound scientific and logistical decision-making throughout the 

recovery process.” Ex. A at 1.1-1; see also Defenders of Wildlife, 130 F. Supp. 

2d at 131 (same). If recovery findings for delisting must use the best available 

science and if recovery plans are the roadmap for such findings, then surely 

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the decision and the plan must be in sync and use the same science.

II. The Service’s recovery plan is challengeable under the APA.

The ESA does not provide the only cause of action against the Service. 

Bennett, 520 U.S. at 175. Nor does it supplant or preclude judicial review 

under the APA. Id. The APA provides a separate right to judicial review of all

“final agency actions” for which there is no other adequate remedy in a court. 

5 U.S.C. § 704. Two conditions must be satisfied for actions to be final. First, 

the action “must mark the ‘consummation’ of the agency’s decisionmaking 

process . . . it must not be of a merely tentative or interlocutory nature.” 

Bennett, 520 U.S. at 177-178. Second, the “action must be one by which 

‘rights or obligations have been determined,’ or from which ‘legal 

consequences will flow.’” Id. Courts consider the effects of the action and 

“define the finality requirement in a pragmatic and flexible manner.”

Havasupai Tribe v. Provencio, 876 F.3d 1242, 1250 (9th Cir. 2017).

Here, the Service does not contest that Bennett’s first requirement is

met. The Service’s focus, rather, is on Bennett’s second requirement and a 

theory that the recovery plan is not a final agency action because it “does not 

have ‘direct and appreciable legal consequences.’” Doc. 24 at 17. This new 

theory, however, is betrayed by the Service’s own policy where it expressly 

concedes recovery plans qualify as “final agency action” subject to review 

under the APA, see Ex. A at 2.3-10, and explains, in detail, the importance of 

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recovery planning and its determinative effect on the Service’s ESA 

obligations, see id. at 1.1-1. The Service’s policy explains that while recovery 

plans are guidance (not regulatory) documents, they are nonetheless “one of 

the most important tools to ensure sound scientific and logistical decisionmaking throughout the recovery process.” Id. Recovery plans serve as the 

“road map for species recovery – [they] lay[] out where we need to go and how 

best to get there” and the ESA “clearly envisions recovery plans as the 

central organizing tool for guiding each species’ recovery process.” Id.

As recently explained by the Service in its delisting rule for 

Yellowstone’s grizzly bears, while recovery plans are “not regulatory 

documents . . . they are intended to provide guidance to the Service and our 

partners on methods to ameliorate threats to listed species and on criteria 

that may be used to determine when recovery is achieved.” 82 Fed. Reg. 

30,502, 30,553 (June 30, 2017). Compliance with recovery plans is thus 

expected (if not required) for delisting. In fact, in the grizzly bear case, the 

Service was compelled to revise the criteria in the recovery plan as a 

prerequisite to delisting. See id. This was necessary because courts routinely 

evaluate compliance with recovery plan criteria when determining if delisting 

proposals are arbitrary and capricious. See, e.g., Defenders of Wildlife v. Hall, 

565 F.Supp.2d 1160, 1171–72 (D. Mont. 2008) (holding the gray wolf had not 

attained the recovery criteria and the Service had not, alternatively, provided 

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reasoning to reject the criteria); Greater Yellowstone Coalition, 665 F.3d at 

1021–30 (discussing importance of recovery criteria and considering criteria 

in overturning grizzly bear delisting proposal). 

Recovery plans also “guide Federal agencies in fulfilling” their section 7

consultation obligations, Ex. A at 1.1-1, and courts often look to attainment of 

recovery criteria when assessing compliance with section 7 consultations 

under the ESA, see, e.g., Alaska v. Lubchenco, 723 F.3d 1043, 1049–50 (9th 

Cir. 2013) (agency had to consider whether continued fishing could prevent 

the species from achieving the recovery plan's goals for delisting). In addition, 

recovery plans guide federal agencies in fulfilling a number of other ESA 

obligations, including the development of habitat conservation plans 

(“HCPs”) under section 10, special rules for threatened species under section 

4(d), and the creation and management of experimental populations – like 

the Mexican wolf at issue here – pursuant to section 10(j) of the ESA. Ex. A 

at 1.1-1. In this Court’s related 10(j) case, for example, the Service insisted 

that the 2017 recovery plan “will serve as a reference point” and be used as 

“guidance” for the revised 10(j) rule. Ctr. for Biological Diversity v. Jewell, 15-

cv-00019-JGZ (Doc. 207 at 4 of 8). The Service is keenly aware of the 

determinative effect recovery plans have on its ESA obligations.

The Service counters that this Court should adopt a more stringent test 

for Bennett’s second requirement, one that looks at other factors, including 

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publication in the Federal Register and whether the action is binding on 

private parties or the agency. Doc. 24 at 18 (citing Cmty. Fin. Servs. Ass’n of 

Am., Ltd. v. FDIC, 132 F. Supp. 3d 98, 118 (D.D.C. 2015)). But this is not the 

Bennett test. See 520 U.S. at 178. Bennett said the second requirement could 

be satisfied if the action is “one by which rights or obligations have been 

determined, or from which legal consequences will flow.” 520 U.S. at 178 

(emphasis added). Nor is the Service’s new test consistent with Ninth Circuit 

precedent recognizing “several avenues for meeting the second finality 

requirement.” Or. Natural Desert Ass’n v. U.S. Forest Serv., 465 F.3d 977, 987 

(9th Cir. 2006). Agency actions must “impose an obligation, deny a right, or

fix some legal relationship.” Id. (emphasis added and in original). “The legal 

relationship, [however], need not alter the legal regime to which the involved 

federal agency is subject,” and “Bennett’s second requirement can be met 

through different kinds of agency actions, not only one that alters an agency’s 

legal regime.” Id.; see also U.S. Army Corps of Engineers v. Hawkes, 136 S.Ct. 

1807, 1814 (2016) (considering the effect of action to determine finality); 

Sackett v. EPA, 132 S.Ct. 1367, 1372 (2012) (same).6

 6 In Friends of the Wild Swan, the court found that compliance with recovery 

plans is not even “expected.” 260 F. Supp. 3d at 1344 n.7. Little support for 

this finding, however, is provided and the court fails to acknowledge the 

critical role recovery plans play in delisting decisions, section 7 consultation, 

HCPs, special 4(d) rules, or 10(j) rules for experimental populations. 

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As discussed above, recovery plans meet this test. Though technically 

“non-binding,” recovery plans – as the name implies – are critical 

instruments in the Service’s efforts to recover listed species under the ESA

and there are practical, real-world, and legal consequences for noncompliance. See supra pp. 14-15. In this respect, a recovery plan is similar to 

the biological opinion at issue in Bennett. The Service is technically free to 

disregard the strategy, actions, and criteria included in a recovery plan –

much like it is “technically free to disregard [a] biological opinion and proceed 

with its proposed action,” Bennett, 520 U.S. at 170 – but the Service “does so 

at its own peril (and that of its employees).” Id. 

The Service’s final argument that recovery plans are not reviewable 

because they are “committed to agency discretion by law” deserves little 

attention. As described above, any contention that the provisions of section 

4(f)(1)(B) of the ESA are discretionary would fly in the face of its text – which 

uses the word “shall” – the ESA’s legislative history, the Service’s own policy, 

and the relevant caselaw. See supra pp. 4-13; cf. Bennett, 520 U.S. at 175. 

CONCLUSION

For the forgoing reasons, this Court should deny the Service’s Rule 

12(b)(1) motion to dismiss Guardians’ amended complaint. 

Respectfully submitted this 28th day of June, 2018. 

/s/ Matthew K. Bishop

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Matthew K. Bishop

admitted pro hac vice

/s/ John R. Mellgren

John R. Mellgren

admitted pro hac vice

CERTIFICATE OF SERVICE

I hereby certify that on this 28th day of June, 2018, I filed a copy of this 

document electronically through the CM/ECF system, which caused all ECF 

registered counsel to be served by electronic means, as more fully reflected on 

the Notice of Electronic Filing. 

/s/ Matthew Bishop 

Matthew Bishop

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