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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Center for Biological Diversity, et al.,

Plaintiffs,

vs.

Deb Haaland, et al.,

Defendants,

and

New Mexico Department of Game and Fish,

Defendant-Intervenor.

No: 4:18-CV-00047-TUC-JGZ (Lead)

ORDER

WildEarth Guardians, et al.,

Plaintiffs,

vs.

Deb Haaland, et al., et al.,

Defendants,

and

New Mexico Department of Game and Fish,

Defendant-Intervenor. 

No. 4:18-CV-00048-TUC-JGZ (Member)

In November 2017, the United States Fish and Wildlife Service (“FWS” or “the 

Service”) issued a revised recovery plan for the Mexican gray wolf, pursuant to Section 

4(f) of the Endangered Species Act (“ESA” or “the Act”), 16 U.S.C § 1533(f). The 

“Mexican Wolf Recovery Plan First Revision” (“Plan” or “Revised Plan”) is meant to serve 

as the Service’s roadmap for the conservation and survival of the Mexican wolf, a 

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subspecies of the gray wolf. In the litigation presently before the Court, seven Plaintiffs1

allege that, in developing the Plan, the Service violated Section 4(f) of the Endangered 

Species Act, 16 U.S.C § 1533(f)(1)(B), by failing to include (1) site-specific management 

actions necessary for conservation, and (2) objective, measurable criteria necessary for 

delisting the Mexican wolf. Plaintiffs ask the Court to remand the Plan to the Service for 

amendment in compliance with the ESA.

Pending before the Court are the parties’ cross-motions for summary judgment, 

which are fully briefed.

2 The parties have also filed notices of supplemental authority and 

responses to the notices. (CV-18-47 Docs. 71, 74, 75; CV-18-48 Docs. 54, 55.) After 

consideration of the parties’ briefing and the administrative record, the Court will grant, in 

part, Plaintiff Center for Biological Diversity’s motion for summary judgment, deny 

Plaintiff WildEarth Guardians’s motion for summary judgment, and deny, in part,

Defendants’ cross-motions for summary judgment. 

I. STATUTORY BACKGROUND

Passed in 1973, Congress enacted the Endangered Species Act, 16 U.S.C. § 1531, 

to protect and conserve endangered species. Described by the Supreme Court as “the most 

comprehensive legislation for the preservation of endangered species ever enacted by any 

nation,” the ESA reflects Congress’s desire “to halt and reverse the trend toward species 

extinction, whatever the cost.” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180, 184 (1978).

1

In this consolidated case, Plaintiffs include the Center for Biological Diversity, 

Defenders of Wildlife, Endangered Wolf Center, David R. Parsons, Wolf Conservation 

Center, WildEarth Guardians, and Western Watersheds Project (collectively “the 

Plaintiffs”). The Defendants include the Secretary of the Interior, Deb Haaland; United 

States Fish and Wildlife Service; FWS’s Southwest Regional Director, Amy Leuders; 

United States Department of the Interior, Acting Director of FWS, Martha Williams; and 

Intervenor-Defendant New Mexico Department of Game and Fish (collectively “the 

Defendants”). The named public officials are the current holders of the offices. See Fed. R. 

Civ. P. 25(d) (providing for automatic substitution of public official’s successor).

2 The cross-motions for summary judgment, memoranda, and statements of facts in 

Case No. 18-CV-00047-TUC-JGZ are filed at Docs. 48, 56, 64 (Plaintiff CBD); 58, 59, 67 

(Federal Defendants); and 61, 62, 69 (Intervenor-Defendant New Mexico Department of 

Game and Fish). The cross-motions for summary judgment, memoranda and statement of 

facts in case No. 18-CV-00048-TUC-JGZ are filed at Docs. 41, 42, 43, 50 (WildEarth 

Guardians); 44, 45, 52 (Federal Defendants); and 47, 48 (Defendant-Intervenor New 

Mexico Department of Game and Fish). 

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“Under the ESA, the Secretary of the Interior[] must identify endangered species, designate 

their ‘critical habitats,’ and develop and implement recovery plans.” Nat. Res. Def. 

Council, Inc. v. U.S. Dept. of Interior, 13 Fed. App’x 612, 615 (9th Cir. July 5, 2001)

(citation omitted). The Secretary's duties under the ESA are delegated to the Service

pursuant to 50 C.F.R. § 402.01(b).

Congress pronounced the purpose of the ESA to be the conservation of listed species 

and the ecosystems upon which they depend, 16 U.S.C. § 1531(b), and declared a policy 

that all federal agencies “shall utilize their authorities in furtherance” of this purpose. Id. § 

1531(c)(1). Conservation is defined 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 [by the ESA] are no longer necessary.” Sierra Club v. U.S. Fish & 

Wildlife Serv., 245 F.3d 434, 438 (5th Cir. 2001) (citing 16 U.S.C. § 1532(3)). 

Reflecting this conservation mandate, Section 4(f) of the ESA directs the Secretary 

to “develop and implement [recovery] plans . . . for the conservation and survival” of a 

species listed as endangered. 16 U.S.C. § 1533(f)(1). In doing so, the Secretary “may 

procure the services of appropriate public and private agencies and institutions, and other 

qualified persons.” Id. § 1533(f)(2). The 1998 amendments to the ESA further require that 

the Secretary, in developing and implementing recovery plans, incorporate in each plan,

“to the maximum extent practicable”:

(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 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. 

Id. § 1533(f)(1)(B)(i)–(iii). Further, the Secretary must “provide public notice and an 

opportunity for public review and comment on such plan,” and then “consider all 

information presented during the public comment period prior to approval of the plan.” Id.

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§ 1533(f)(4), (5).

“The recovery plan, once prepared, provides [a] ‘basic road map to recovery, i.e., 

the process that stops or reverses the decline of a species and neutralizes threats to its 

existence.’” Ctr. for Biological Diversity v. Kempthorne, 607 F. Supp. 2d 1078, 1088 (D. 

Ariz. 2009) (quoting Defs. of Wildlife v. Babbitt, 130 F. Supp. 2d 121, 131 (D.D.C. 2001)).

“Any such plan is supposed to . . . provide a means for achieving the species’ long-term 

survival in nature.” Fund for Animals v. Babbitt, 903 F. Supp. 96, 103 (D.D.C. 1995). Yet, 

despite the requirements of Section 4(f), the recommendations contained within a recovery 

plan are not binding upon the agency, and the Secretary retains discretion over the methods 

to use in species conservation. Conservation Congress v. Finley, 774 F.3d 611, 620 (9th 

Cir. 2014).

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). 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 non-discretionary duty mandated by Section 4. 

Bennett v. Spear, 520 U.S. 154, 173 (1997); Coos Cnty. Bd. of Cnty. Comm’rs v. 

Kempthorne, 531 F.3d 792, 809 (9th Cir. 2008). 

II. FACTUAL AND PROCEDURAL BACKGROUND

The Mexican gray wolf is native to the American Southwest. (AR D008960.) 

Although the Mexican wolf population once hovered in the thousands, by the 1970s, the 

wolves were believed to be extinct in the wild. (AR D008957-58.) In 1976, the Mexican 

gray wolf was listed as an endangered subspecies under the ESA and, in 1982, the Service

released a “recovery plan” for the wolf. (Id.; AR D015046.) At that time, the recovery team 

could not foresee full recovery and eventual delisting of the species due to its dire status. 

(CV 18-47 Doc. 59 at ¶ 16; CV-18-48 Doc. 51 at ¶ 16.)

In 2010, the Service appointed a Mexican Wolf Recovery Team with a Science and 

Planning Subgroup to draft an updated draft recovery plan. (AR D001234-35.) This 

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proposed plan was never finalized under Section 4(f) of the ESA. (AR D014103.)

In 2014, Plaintiffs sued the Service, alleging it had failed to complete a recovery 

plan for the Mexican gray wolf that complied with the requirements of Section 4(f). See 

Defs. of Wildlife v. Jewell, No. CV-14-02472-TUC-JGZ, 2015 WL 11182029, at *1 (D. 

Ariz. Sept. 30, 2015). The Court determined that Plaintiffs stated a claim that the Service

failed to issue a revised plan that complied with the post-1988 requirements of Section 4(f), 

16 U.S.C § 1533(f). Defs. of Wildlife, 2015 WL 11182029, at *9. The parties ultimately 

settled the case, and the Service agreed to produce a revised plan. Defs. of Wildlife v. Jewell, 

No. CV-14-02472-TUC-JGZ, 2016 WL 7852469 (D. Ariz. Oct. 18, 2016).

The revised plan, “Mexican Wolf Recovery Plan, First Revision,” was completed 

in November 2017. (AR D009169.) In 2018, in this consolidated case, Plaintiffs filed suit

challenging the Plan on various grounds. The Court dismissed the counts that were, “in 

essence, disagreements with the Service’s determination as to how to best provide for the 

conservation and survival of the Mexican gray wolf,” reasoning that these were 

“determinations within the agency’s discretion and therefore unreviewable under the 

ESA’s citizen-suit provision.” Ctr. for Biological Diversity v. Zinke, 399 F. Supp. 3d 940, 

946-949 (D. Ariz. 2019). The Court allowed the Plaintiffs to proceed with the counts that 

alleged the Service failed to include in the Plan, objective, measurable criteria and sitespecific-management actions to address threats, or otherwise failed to offer a reason why 

it was not practicable for the agency to do so. Id. at 949-50. 

III. STANDARDS OF REVIEW

A. Summary Judgment

Summary judgment is appropriate if the pleadings and supporting documents “show 

that there is no genuine issue as to any material fact and that the moving party is entitled 

to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 

317, 322 (1986). A court presented with cross-motions for summary judgment should 

review each motion separately, giving the nonmoving party for each motion the benefit of 

all reasonable inferences from the record. Ctr. for Bio-Ethical Reform, Inc. v. Los Angeles 

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Cnty. Sheriff Dep’t, 533 F.3d 780, 786 (9th Cir. 2008). “Summary judgment is a 

particularly appropriate tool for resolving claims challenging agency action.” Defs. of 

Wildlife v. Salazar, 729 F. Supp. 2d 1207, 1215 (D. Mont. 2010). In such cases the district 

court’s role is not to resolve facts, but to “determine whether or not as a matter of law the 

evidence in the administrative record permitted the agency to make the decision it did.” 

Occidental Eng’g Co. v. INS, 753 F.2d 766, 769 (9th Cir. 1985).

3

B. ESA Citizen-Suit Provision and APA Standard of Review

The district court’s review of the Plan is limited under the ESA’s citizen-suit 

provision, to claims that the Service did not fulfill its non-discretionary duties. 16 U.S.C. 

§ 1540(g)(1)(C). Allegations that are, “in essence, disagreements with the Service’s 

determination as to how to best provide for the conservation and survival of the Mexican 

gray wolf . . . are determinations within the agency’s discretion and therefore unreviewable 

under the ESA’s citizen-suit provision.” Ctr. for Biological Diversity, 399 F. Supp. 3d at

946-949. The Service is not necessarily obligated “to include any one particular suggestion 

that any given person deems important for species conservation.” Id. at 949. Further, the 

Service’s duty to satisfy the requirements of § 1533(f) in developing a recovery plan need 

not be based on the “best available science.” Id. 

Although “FWS has discretion as to the content of recovery plans, that does not 

necessarily mean that there are no circumstances under which review of a plan might be 

appropriate.” Id. at 948. “A citizen may still bring suit under § 1540(g) when the [the 

Service] fails to incorporate, to the maximum extent possible, one of the requirements from 

§ 1533(f)(1)(B) in a given recovery plan.” Id. (citation omitted). A challenge to a recovery 

plan is, therefore, reviewable if the challenge asserts that the agency failed to include sitespecific management actions and objective criteria “to address a problem the agency itself 

3 Several parties filed controverting statements of facts. (See Docs. 60, 63, 65, and 

66 in 18-CV-00047-TUC-JGZ, and Docs. 46, 49, and 51 in 17-CV-00048-TUC-JGZ.) 

Upon review, the Court concludes that, although the parties disagree about the legal 

significance, the underlying content and accuracy of the administrative record is not in 

dispute. Thus, this case is appropriate for resolution by summary judgment. See Occidental 

Eng’g Co., 753 F.2d at 769-70 (noting that in its review of an administrative proceeding 

the district court decides legal question of whether the agency could reasonably have found 

the facts as it did).

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identified, without offering an explanation as to why it was not practicable for the agency 

to do so.” Id. at 950. 

Here, Plaintiffs’ allegations that the Service failed to satisfy the requirements of § 

1533(f)(1)(B) are reviewable. The arguments raised by the Plaintiffs necessarily require 

the Court to determine whether, as a matter of law, the proposed actions and criteria 

constitute “site-specific management actions” and “objective, measurable criteria,” and 

whether, based on the record, the actions and criteria address the threats recognized by the 

Service. If the required elements are omitted, the Court must further determine whether 

the Service has provided a reason for the omissions, explaining why it is impractical to 

include the statutory requirements. 

“Because ESA contains no internal standard of review,” the APA standard of review 

governs. W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 496 (9th Cir. 2011) 

(applying APA to failure to consult claim brought under ESA citizen-suit provision)

(citation omitted); 5 U.S.C. § 706(2)(A). (Doc. 48-1 at 19-20; Doc. 58-1 at 18; Doc. 61 at 

6.) The core inquiry is whether there is a rational connection between the site-specific 

actions and criteria chosen and the threats they are intended to address. See Forest 

Guardians v. U.S. Forest Serv., 329 F.3d 1089, 1099 (9th Cir. 2003) (requiring rational 

connection between facts found and choice made). Further, if a reasonable basis exists, the 

court must accept a agency’s explanation on why it was impracticable to include sitespecific actions and criteria. See Kern Cty. Farm Bureau v. Allen, 450 F.3d 1072, 1076 (9th 

Cir. 2006) (affirming agency action if reasonable basis exists). A court’s review is “limited 

to the explanations offered by the agency in the administrative record.” Arrington v. 

Daniels, 516 F.3d 1106, 1113 (9th Cir. 2008).

IV. DISCUSSION

A. Plaintiffs Have Article III Standing

The ESA’s citizen suit provision permits “any person” to commence a civil suit—

“an authorization of remarkable breadth when compared with the language Congress 

ordinarily uses.” Bennett v. Spear, 520 U.S. 154, 164-65 (1987). This provision allows 

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standing to the fullest extent permitted by Article III. Id. at 164-66; Amer. Soc. for 

Prevention of Cruelty to Animals v. Feld Entm’t, Inc., 659 F.3d 13, 19 (D.C. Cir. 2011). 

An organization has Article III standing to bring suit on behalf of its members when 

“its members would otherwise have standing to sue in their own right.”4 Hunt v. Wash.

State Apple Advert. Comm., 432 U.S. 333, 343 (1977). To have standing to sue in one’s

own right, a member “must have (1) suffered an injury in fact, (2) that is fairly traceable to 

the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable 

judicial decision.” Sierra Club v. Trump, 963 F.3d 874, 883 (9th Cir. 2020). Here the 

Service challenges only the first requirement. Thus, the Court must determine whether the 

members of WEG and CBD have suffered an injury in fact. 

Plaintiffs are asserting that the Service violated the ESA’s procedural requirement 

that a recovery plan include site-specific management actions and objective, measurable 

criteria; Plaintiffs are not permitted by law to challenge the substance of the plan. See 16 

U.S.C § 1540(g)(1)(C); see also Ctr. for Biological Diversity, 399 F. Supp. 3d at 946-949. 

Plaintiffs allege the Service’s alleged error is a procedural one. Therefore, Plaintiffs must 

prove a procedural injury. (CV-18-48 Doc. 52 at 6; Doc. 50 at 7; CV-18-47 Doc. 48-1 at 

16.) 

“In order to establish an injury in fact in the context of a claimed procedural error 

4 An organizational plaintiff must also show that the interests it seeks to protect are 

germane to the organization’s purpose, and neither the claim asserted nor the relief 

requested requires the participation of individual members in the lawsuit. Hunt, 432 U.S.

at 343. Although these two requirements are not challenged in this action, “it is well 

established that the court has an independent obligation to assure that standing exists, 

regardless of whether it is challenged by any of the parties.” See Summers v. Earth Island 

Institute, 555 U.S. 488, 499 (2009). Here, Plaintiffs have set forth sufficient facts by 

declaration to establish both requirements. Plaintiffs are organizations that are committed 

to conserving, protecting, and restoring the Mexican wolf and other imperiled species. 

Some of the Plaintiffs have been dedicated, through legal action and otherwise, to 

conserving the Mexican wolf since the 1990s. Plaintiffs’ interest in ensuring the Mexican 

wolf recovery plan complies with the ESA is therefore germane to their purpose. Plaintiffs 

seek relief in the form of a remand of the recovery plan to the FWS for the purpose of 

incorporating the statutory requirements under the ESA. Other than drafting declarations 

in support of their respective organization’s standing, neither the claim that FWS violated 

the ESA, nor the relief requested, requires the participation of any of the members.

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in an agency’s decisionmaking process, a plaintiff must show that ‘(1) the [agency] violated 

certain procedural rules; (2) these rules protect [a plaintiff’s] concrete interests; and (3) it 

is reasonably probable that the challenged action will threaten their concrete interests.’” 

Friends of Santa Clara River v. U.S. Army Corps of Eng’rs., 887 F.3d 906, 918 (9th Cir. 

2018) (citation omitted) (alterations in original). “That is, for Article III purposes, [a court] 

may recognize a ‘procedural injury’ when a procedural requirement has not been met, so 

long as the plaintiff also asserts a ‘concrete interest’ that is threatened by the failure to 

comply with that requirement.” City of Sausalito v. O’Neill, 386 F.3d 1186, 1197 (9th Cir. 

2004). In the environmental context, “the desire to use or observe an animal species, even 

for purely esthetic purposes, is undeniably a cognizable interest for the purpose of 

standing.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 562-63 (1992); see also Friends of 

Earth, Inc. v. Laidlaw Envir. Servs. (TOC), Inc., 528 U.S. 167, 183 (2000) (“We have held 

that environmental plaintiffs adequately allege injury in fact when they aver that they use 

the affected area and are persons ‘for whom the aesthetic and recreational values of the 

area will be lessened’ by the challenged activity.” (quoting Sierra Club v. Morton, 405 U.S. 

727, 735 (1972))). 

Applying these standards, the Court concludes Plaintiffs have Article III standing 

to challenge the Service’s failure to incorporate into the Plan the required site-specific 

management actions and objective, measurable criteria.5 First, Plaintiffs adequately assert 

a violation of a procedural rule. Second, the requirement that site-specific actions and 

objective, measurable criteria be included in a recovery plan was created to assist the 

agency in ameliorating the threats to the Mexican wolf, thereby protecting Plaintiffs’ 

aesthetic interests in viewing the wolf. See Kempthorne, 607 F. Supp. 2d at 1088 (noting 

that a recovery plan is a roadmap for the Service to use to neutralize threats to a species’ 

existence); see also Fund for Animals, 903 F. Supp. at 103 (“It is supposed to provide a 

5

 Because the organizational Plaintiffs have associational standing to sue on behalf 

of their members, the Court need not also consider whether Plaintiff David R. Parsons has 

standing, although it appears from his declaration that he does. See Friends of Santa Clara 

River, 887 F.3d at 918 (stating when there are multiple plaintiffs, only one plaintiff must 

have standing).

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means for achieving the species’ long-term survival in nature.”) Third, because the 

recovery plan is supposed to be the process that neutralizes the recognized threats to the 

wolf’s existence, the Service’s alleged failure to identify actions and criteria in response to 

those threats creates a reasonable probability that Plaintiffs’ interests in viewing the wolf 

in the future are threatened. 

The Service does not cite any authority in support of its assertion that there can be 

no injury from a procedurally deficient plan because recovery plans are non-binding 

statements of intention and there is no assurance that any of the sought-after elements will 

actually be implemented.

6 A plaintiff is not required to demonstrate that a procedurallyproper recovery plan will necessarily protect their concrete interest in the species. See City 

of Sausalito, 386 F.3d at 1197 (plaintiffs are not required to show a procedurally proper 

EIS would protect their interests in the area); Cantrell v. City of Long Beach, 241 F.3d 674, 

682 (9th Cir. 2001) (“[P]laintiffs asserting procedural standing need not demonstrate that 

the ultimate outcome following proper procedures will benefit them.”); Seattle Audubon 

Soc. v. Espy, 998 F.2d 699, 703 (9th Cir. 1993) (“Speculation that . . . redrafting the EIS 

might not change the Secretary’s decision . . . is not relevant to standing.”). Indeed this 

Court has previously held that a plaintiff has “standing to challenge the Secretary’s failure 

to comply with ESA in developing the recovery plan although the incorporation of delisting 

objectives and criteria into the recovery plan may not necessarily result in . . . full 

recovery.” Sw. Ctr. for Biological Diversity v. Babbitt, 1999 WL 33438081, *3-4 (D. Ariz. 

Sept. 3, 1999); see also Ctr. for Biological Diversity v. Bernhardt, 480 F. Supp. 3d 69, 74-

75 (D.D.C. 2020) (finding Center of Biological Diversity had standing to challenge 

recovery plan).

//

6 Plaintiffs assert that Defendants’ argument may be a redressability argument. To 

the extent it is a redressability argument, it is misplaced. Redressability is satisfied when 

“the relief requested—that the agency follow the correct procedures—may influence the 

agency’s ultimate decision.” Salmon Spawning & Recovery All. v. Gutierrez, 545 F.3d 

1220, 1226 (9th Cir. 2008) (emphasis added). Although the ESA does not mandate 

compliance with recovery plans, FWS looks to the Plan as an advisory document, which 

may influence their decisions in conserving the Mexican wolf. 

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B. Site-Specific Management Actions to Address Human-Caused Mortality

Plaintiffs assert that the Service’s Plan violates the ESA because it does not contain 

site-specific management actions to address the recognized threat of illegal killing of 

Mexican wolves. Plaintiffs argue that the Plan provides only the vague goal that the 

Service, state agencies, and Mexico “[r]educe human-caused mortality of Mexican 

wolves.” Plaintiffs assert that the Plan leaves out any specifics of how to meet this goal, 

any practical steps for how these agencies might reduce human-caused mortality, and fails 

to explain why it is impracticable or unnecessary to recommend such action. The Court 

agrees. 

Having recognized human-caused mortality as a threat to the wolf, the Service 

acknowledges that it was required to incorporate in the Plan, to “the maximum extent 

practicable,” a description of site-specific management actions as may be necessary to

address the threat and achieve the goal of conservation and survival of the wolf. (CV-18-

47 Doc. 58-1 at 27.) The Service claims that the Plan provides numerous site-specific 

management as may be necessary to achieve the Plan’s goal, in the Recovery Action Table 

at the end of the Plan. (Id. at 23, 27.) 

Section VI of the Plan, titled “Actions Needed,” addresses “[r]ecovery actions, 

which were developed for each objective, [to] guide site-specific activities to address 

threats and achieve the recovery criteria.” (AR D009208.) Section VI directs the reader to 

the Recovery Action Table for “[r]ecovery actions, organized by recovery objective.” 

(AR D009208.) The Recovery Action Table lists 24 “site-specific management actions,” 

organized under the applicable recovery objective. (AR D009211-14.) Each site-specific 

action also identifies which of three threats to the species the management action is meant 

to address.

7

 (Id.) According to the Service, 16 of the 24 management actions listed in the 

Table address the threat of mortality of the species. But review of the recovery actions 

7 The threat numbering system is: 1) loss of gene diversity; 2) extinction 

risk/demographic stochasticity; and 3) exceeding threshold mortality rate. Each action is 

assigned a numerical priority (1, 2, or 3) to highlight the relative contribution the action 

makes toward species recovery. (AR D009214.) 

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shows that few relate to human-caused mortality. Further, many of the listed actions are 

so vague as to not constitute an action at all. 

Under the umbrella of the Plan Objective to increase the size of the wolf 

populations, site-specific actions 1.1 and 1.2 call for surveying and monitoring the wolves

to determine their population status. (AR D009211.) The Plan does not relate how this 

action is tied to or will address human-caused killings. Similarly, actions 1.3 and 1.4 call 

only for monitoring the wolves on certain tribal lands. (Id.)

Site-specific actions 1.6 and 1.7, which call for reduction of human-caused 

mortality, do not identify any particular action that management intends to take to address 

the threat. (Id.) The “action”—reducing human-caused mortality—is identical to the

objective—reducing human-caused mortality. Restatement of the threat does not 

constitute a management action which will address the threat. Similarly, site-specific 

action numbers 1.8 and 1.9 call for a reduction in Mexican wolf-livestock conflicts in the 

U.S. and Mexico, but fail to identify any management action which might be employed to 

reduce such conflicts. (AR D009211-12.)

Under the umbrella of the Plan Objective to ensure adequate habitat, site-specific 

action 3.4 pertains to maintaining or improving the status of native prey populations of 

Mexican wolves. (AR D009213.) Any link between this action and human threats is 

unstated. More importantly, no specific management actions are specified that would 

improve the status of native prey. Likewise, site-specific action 2.4 falls under the Plan 

Objective of improving gene diversity and maintaining the health of Mexican wolves. 

Action 2.4 calls for monitoring and managing Mexican wolf health. (AR D009212.) It 

does not identify an action which would address the threat of illegal killing.

Specific-site actions 5.1, 5.2 and 6.4 are the closest that the Plan gets to including 

management actions to address the threat of human-caused mortality. Action 6.4 calls for 

developing adequate regulations and management and monitoring plans to maintain viable 

Mexican wolf populations after delisting. (AR D009214.) Actions 5.1 and 5.2 call for 

conducting education and outreach programs on Mexican wolf conservation in the U.S. 

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and Mexico. (AR D009213.) The stated actions are so vague, however, that one must 

speculate and guess what educational action or regulatory development might be taken 

which would pertain to reducing human-caused mortality. 

The Court acknowledges that “[i]t is not necessary for a recovery plan to be an 

exhaustively detailed document.” See Fund for Animals, 903 F. Supp. at 106 (noting that 

the term “specific” modifies the term site, not the term “actions”). Nonetheless, “[a]

recovery plan 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.” Id. at 108. Here, the Service does not assert that it would be impracticable to 

include site-specific management actions addressing human-caused killing in the Plan. 

Rather, the Service claims that the actions included in the Plan are sufficient, and asserts 

that the ESA provides neither a definition nor parameters for “site-specific management 

actions.” (CV 18-47 Doc. 52 at 12.) But the ESA requires inclusion of site-specific 

management actions “to the maximum extent practicable.” 16 U.S.C. § 1533(f)(4). “[T]he 

phrase ‘to the maximum extent practicable’ does not permit an agency unbridled 

discretion.” Fund for Animals, 903 F. Supp. at 107. Under the statute, the agency has a 

“clear duty . . . to fulfill the statutory command to the extent that it is feasible or possible.” 

Id. 

The Service’s separate Recovery Implementation Strategy demonstrates that sitespecific actions can be included in the Plan. The Strategy “provides additional detailed, 

site-specific near-term activities needed to implement the actions identified in the recovery 

plan.” (AR D009208.) It lists actions specifically tied to the threat of human-caused 

mortality, including actions listed under a category specifically addressed to reducing this 

threat. For example, site-specific action 1.6.1 proposes to conduct education and outreach 

“to improve public tolerance of wolves,” including education on techniques to reduce 

conflicts with livestock for school children, communities, landowners, livestock producers, 

and the general public. (AR D009235.) Site-specific action 1.6.2 is similarly identified as 

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a management action to reduce human-caused mortality. Action 1.6.2 provides for 

increasing law enforcement presence by hiring Conservation Law Enforcement Officers to 

assist in educating the public, in particular hunters and recreationists, to assist with 

investigations of wolf mortalities, and to coordinate with law enforcement from other 

agencies. (Id.) The Implementation Strategy identifies several other concrete actions to 

address the threat of human-killings, including the installation of enhancements to facilitate 

Mexican wolf movement across existing and new roads to help reduce vehicle collisions 

with Mexican wolves (action 1.6.4); reducing wolf-livestock conflicts with proactive 

measures, increased monitoring, hazing, translocations and removal (action 1.8.3);

compensating livestock producers for losses due to wolves (action 1.8.4); and providing 

funding for wolf presence on or near livestock operations (action 1.8.5). (AR D009235, 

D009237.)

The Service recognizes the Implementation Strategy is not a substitute for the Plan

itself, but suggests that the Court consider the Strategy as further evidence that the Plan 

addresses the threat of human-caused mortality to the species through site-specific actions.

(CV-18-48 Doc. 52 at 14.) However, the Service does not claim that it would be 

impracticable to include the management actions contained in the Implementation Strategy 

in the Plan. While the Service states that it is impracticable to include in the Plan “specific 

sites” for proposed management actions, the Service does not argue that, and the record 

does not provide any rationale to explain why, the management actions contained in the 

Implementation Strategy could not be included in the Plan. (See AR D009208) (noting 

that “[p]lan does not provide more specific locations for actions for which locations cannot 

be determined until future conditions are known” and that the Service anticipates “being 

able to provide a greater degree of site-specificity in the implementation strategy than the 

recovery actions in the recovery plan” (emphasis added)). 

Because the Court concludes that the Plan does not include site-specific actions and 

the Service has failed to offer an explanation as to why it was impracticable to include such 

actions in the Plan, the Court will remand this matter to the Service for a recovery plan that 

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complies with 16 U.S.C. § 1533(f)(1)(B).

C. Objective and Measurable Criteria

Plaintiffs assert that the Revised Plan fails to include objective, measurable criteria 

to assess the threat of human-caused mortality; the threat from inadequate regulatory 

mechanisms; genetic threats; and threats to habitat. Plaintiffs argue that, because the 

Service failed to address a problem that the agency itself identified, without offering an 

explanation as to why it was not practicable for the agency to do so, the Plan violates the 

ESA. (CV-18-47 Doc. 64 at 18 (citing Ctr. for Biological Diversity, 399 F. Supp. 3d at 

950)). 

1. Human-Caused Mortality Criteria

The Service has recognized that human-caused mortality, including illegal killings, 

is a continuing threat to the Mexican wolf. (AR D009189.) Thus, the ESA requires the 

Service, in developing and implementing the Recovery Plan, to include objective, 

measurable criteria which, when met, would measure the extent of human-caused mortality 

and whether that threat is being ameliorated. See Ctr. for Biological Diversity, 399 F. Supp. 

3d at 949-50. The Court concludes that the Service fulfilled its statutory duty to address in 

the Plan the threat of human-caused mortality and that there is a rational connection 

between the Plan criteria and the threat of human killing. 

The Recovery Plan addresses the threat of human-caused mortality in its objective 

and measurable criteria pertaining to abundance and the adequacy of regulatory 

mechanisms. With respect to criteria pertaining to abundance, the Plan provides that the 

Mexican wolf will be considered for delisting when:

(1) a minimum of two populations meet all abundance [] criteria as follows: 

(a) The population average over an 8-year period is greater than or 

equal to 320 wolves (e.g., annual wolf abundance of 200, 240, 288, 344, 412, 

380, 355, and 342 averages 320 wolves);

(b) The population must exceed 320 wolves each of the last 3 years of 

the 8-year period; [and]

(c) The annual population growth rate averaged over the 8-year period 

is stable or increasing (e.g., annual averages of 1.2, 1.2, 1.2, 1.2, 1.2, 0.9, 0.9, 

and 1.0 averages 1.1). 

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(AR D009199.) The Service explained in the section of the Plan entitled “Rationale for 

Recovery Criteria,” that the Service adopted the population abundance criteria to “ensure 

that populations are resilient and the threats . . . of human-caused mortality have been 

ameliorated.” (AR D009200.) According to the Plan, “[m]ortality rates will need to be 

sufficiently low to achieve recovery criteria because they are a primary indicator of wolf 

population trajectory.” (Id.) The Plan cites a population viability analysis for the Mexican 

wolf showing that “population performance is highly sensitive to relatively small changes 

in adult mortality rate.” (AR D009201.) The analysis concludes that mean adult mortality 

rates would need to be “less than 25%, combined with mean sub-adult mortality rates less 

than 33% and mean pup mortality . . . less than 13%” for there to be an “increasing 

population that meet[s] the population abundance recovery criteria.” (Id.) Based, in part, 

on the population viability analysis, the Service considers these mortality rates to be 

acceptable and an appropriate measurement of whether, based on the population criteria, 

the human-caused mortality threat has been ameliorated. (Id.)

Plaintiffs assert the Service must create criteria that directly measure the appropriate 

rate of human-caused mortality and state that the population criteria does not adequately

measure success in alleviating the threat of human-caused mortality. Plaintiffs assert that 

using population abundance criteria as a substitute violates the ESA.

8 The Plaintiffs cite to 

the Service’s Recovery Planning Guidance, which provides that population parameters 

may not have been accurate in assessing threats in some cases. (AR D014199.) 

The Court concludes that these arguments challenge the Service’s determination of 

how to best provide for conservation of the Mexican wolf, which is a determination within 

the agency’s discretion, and therefore unreviewable. See Ctr. for Biological Diversity, 399 

F. Supp. 3d at 949. In addition, the fact that population criteria sometimes do not 

8

 In support, Plaintiffs cite Fund for Animals, 903 F. Supp. at 112, and Defs. of 

Wildlife v. Babbitt, 130 F. Supp. 2d 121, 133 (D.D.C. 2001). However, in these cases the 

Service failed to explain how the population abundance criteria addressed the threats to the 

species. In contrast, in the case at bar, the Service clearly explained how the population 

abundance criteria and human-caused moralities are directly related, and how the 

abundance criteria consider and measure the human-caused mortality rate the Service

deems appropriate. 

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adequately measure success, does not mean that use of such criteria in the present case is 

arbitrary or capricious. That fact that more accurate measurements may be available is not 

a factor the Court can consider. The Court concludes that the Service has established a 

rational connection between the population criteria and the threat of human-caused 

mortality, and thus has fulfilled its statutory obligation.

2. Inadequate Regulatory Mechanisms Criteria

The Service states that its criteria addressing inadequate regulatory mechanisms 

address not only that threat but also the threat of human-caused mortality. (CV-18-47 Doc. 

58-1 at 29.) That delisting criterion provides: 

States and Tribes will ensure regulatory mechanisms are in place to prohibit 

or regulate human-caused mortality of Mexican wolves in those areas 

necessary for recovery such that the Service determines that at least 320 

Mexican wolves are likely to be maintained in the United States in the 

absence of Federal ESA protection.

(AR D009199-9200.) 

Plaintiffs argue that the criterion is neither objective nor measurable, as it relies on 

the Service’s subjective determination as to the adequacy of unspecified regulatory 

mechanisms. In addition, Plaintiffs argue that the criterion is insufficient because the 

measure responds only to the threat of inadequate regulatory mechanisms to limit postdelisting mortality under listing factor 4(a)(1)(D), and therefore fails to address the 

Service’s finding that the Mexican wolf is threatened (under ESA listing factor 4(a)(1)(C)), 

“[b]ased on the continuous occurrence of illegal shooting taking place while the Mexican 

wolf is protected by the Act.” (Doc. 64 at 24.) Plaintiffs conclude that the regulatory 

criterion violates the ESA because it is based on future plans that States and Tribes will 

take after delisting. Plaintiffs cite Fund for Animals, 903 F. Supp. at 113, and Oregon 

Natural Resources Council v. Daley, 6 F. Supp. 2d 1139, 1154-55 (D. Or. 1998), in support. 

The Court disagrees with Plaintiffs’ characterization of the criterion. The criterion 

is objective and measurable because it requires regulations to be implemented that will 

maintain a wolf population of 320 wolves. (AR D009200.) The Plan also requires that 

regulations be in place so that the population abundance criteria is retained. (AR D009204.) 

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In fact, Plaintiffs acknowledge that the Service can objectively measure the success of 

regulations by looking to population data.9(CV-18-48 Doc. 42 at 26.) Further, the 

regulations, although providing a general directive, are not completely lacking in 

specificity as Plaintiffs suggest. The criterion requires that the proposed regulations 

“prohibit or regulate human-caused mortality of Mexican wolves.” (AR D009200.) Lastly, 

the criterion does not provide that States and Tribes may ignore the current threat of 

inadequate regulations by developing regulations after delisting. The criterion requires that 

States and Tribes “will ensure regulatory mechanisms are in place to prohibit or regulate 

human-caused mortality of Mexican Wolves in those areas necessary for recovery.” (AR 

D009200.) And the Plan’s Rationale for Recovery states that “[p]rior to delisting, [the 

Service] will ensure that the state and tribal agencies that will be responsible for 

maintaining the recovered status of the Mexican wolf have adequate regulations in place 

to ensure levels of human-caused mortality will enable the population to retain the 

population abundance specified by the abundance criterion.” (AR D009204 (emphasis 

added).) 

Plaintiffs’ reliance on Oregon Natural Resources Council and Fund for Animals, 

for the proposition that recovery actions cannot be based on future actions, is misplaced. 

In Oregon Natural Resources Council, the court held that “the Secretary may not rely on 

plans for future actions to reduce threats and protect a species as a basis for deciding that 

listing is not currently warranted.” 6 F. Supp. 2d at 1154. Future actions are not relevant to 

the determination of whether a species should be listed. In that context, the Service is 

required to consider the present status of a species. In contrast, in the context of recovery 

plans, a plan’s purpose is to identify future actions and criteria that would result in delisting, 

9

 The Court acknowledges that there are inherent difficulties in developing 

objective and measurable criteria to evaluate whether regulations implemented by other 

governmental bodies will successfully address the threat of illegal killings of wolves after 

the protections of the ESA are lifted, as the specific threat is inadequate regulations, absent 

the ESA. As explained in the Service’s Recovery Planning Guidance: “[A] measurable and 

objective criterion may be for a state to have a management plan in place that . . . will 

manage the species effectively after the species is delisted. This criterion is measurable and 

objective (although there’s some subjectivity with regard to whether the plan will be 

effective), without having a numerical component.” (AR D014198.) 

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if met. Fund for Animals is inapplicable because it is factually dissimilar from the present 

case. The Fund for Animals court found that a recovery plan did not satisfy the “objective, 

measurable criteria” requirement because the plan did not include criteria to address the 

inadequacy of existing regulatory mechanisms, despite having identified that inadequacy 

as a threat. 903 F. Supp at 113. There, the Service said that it would include the criteria in 

a yet to be developed Conservation Strategy. Id. In contrast, in the present case, the Service 

included criteria to address inadequate regulatory mechanisms in the recovery plan. 

3. Genetic Criteria

Loss of gene diversity is identified by the Service as a threat to the Mexican wolf in 

the listing and in the Plan. (AR D015961, D009189.) The Plan includes one criterion to 

address genetic threats. The Plan provides that the Mexican wolf will be considered for 

delisting when a minimum of two populations meet (in addition to all abundance criteria)

the following genetic criterion:

Gene diversity available from the captive population has been incorporated 

into the United States population through scheduled releases of a sufficient 

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

breeding age in the United States population. 

(AR D009199.) “Surviving to breeding age” is defined as a pup that lives 2 years to the 

age of breeding or an adult or subadult that lives for a year following its release. (Id.) 

“Scheduled releases” means captive releases and translocations that achieve genetic 

representation, as described in the Plan’s “Rationale for Recovery Criteria.” (Id.) 

The Court disagrees with Plaintiffs’ contention that the Service failed to include any 

delisting criteria in the Plan to address genetic threats. Plaintiffs’ argument is that the 

criterion that is included is so insufficient that it is arbitrary. Plaintiffs argue that measuring 

genetic diversity by the number of releases or survival to a certain age measures only the 

Service’s efforts, and not the results of those efforts. Plaintiffs assert that the delisting 

criterion does not measure the wolves’ actual genetic status. Finally, Plaintiffs argue that, 

although the Service recognizes that connectivity is an important tool for alleviating 

genetic threats and slowing the loss of adaptive potential, the Plan does not include any 

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connectivity criteria; it merely provides that the Service will work to maintain and enhance 

connectivity within and between wolf populations.

The Court concludes that the criterion is not arbitrary or capricious because the 

Service has provided a rational explanation as to how the recovery criterion addresses the 

genetic threat to the Mexican wolf. In the Plan, the Service explains that the gene diversity 

criterion is meant to “ensure[] that Mexican wolf populations have genetic representation 

and that genetic threats have been ameliorated.” (AR D009202.) The Service considers the 

degree to which wild populations contain the gene diversity available from the captive 

population to be an important indication of genetic representation for recovery. (Id.) The 

Service concluded “approximately 90% [gene diversity] to be reasonable for recovery 

because it ensures wild populations contain a high degree of the gene diversity available.”

(AR D009203.) The Service looked at several release scenarios and models that are able to 

achieve 90% gene diversity of the captive population in the wild by model year 20 (2035), 

even when not all released wolves incorporated into the population contribute offspring. 

The metric employed (number of animals that survive to breeding age), coupled model 

performance with performance of the wild populations. (Id.) Even including a low level 

of dispersal/connectivity (approximately 1 wolf every 12-16 years), the model predicts that 

at this level of release and at the predicted first year mortality rate, gene diversity will be 

achieved in the wild wolf population of approximately 90% of that retained in the captive 

population if the delisting criterion—survival of 22 wolves released—is met. (Id.) 10

The Court also disagrees with Plaintiffs’ assertion that “only effort, not results are 

required.” The criterion provides that the released wolves must survive to breeding age, 

and the models cited by the Service contemplate both the anticipated level of release and 

predicted mortality rate to achieve genetic representation. (AR D009200, D009202-04.) 

Moreover, as the Service explained, it is not able to control breeding events in the wild. 

The Court understands, but is not persuaded by, Plaintiffs’ argument that there are methods 

10 The Court disagrees with Plaintiffs’ argument that the 90% target is not 

incorporated in the Plan. The genetics criterion incorporates the 90% gene diversity goal

because the criterion contemplates needing to release 70 wolves in order to have 22 wolves 

survive to breeding age and reach the 90% target. 

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that could be employed to more directly measure the wolves’ genetic makeup. The Court 

is not authorized to determine whether the Service’s means of addressing genetic threats is 

the best. See Ctr. for Biological Diversity, 399 F. Supp. 3d at 946-949 (holding that the 

Service is not required to include any particular suggestion that one might deem necessary 

for conservation of a species). In sum, the Court finds that the Plan’s genetic criterion to 

address the threat of loss of gene diversity is not arbitrary or capricious and that the Service 

has fulfilled its obligation under the ESA to address this threat.

4. Habitat Criteria

Plaintiffs argue that the Service’s failure to identify objective, measurable criteria 

related to habitat violates the ESA. Plaintiffs highlight the importance of suitable habitat 

for wolf recovery and argue that the future loss of habitat is a specific threat to the Mexican 

wolf. 

In 2015, during the listing process, the Service did not identify habitat as a threat to 

the Mexican wolf. (AR D015951.) In the Plan, the Service explains that “habitat 

destruction, modification, or curtailment (Factor A) is not threatening or endangering the 

Mexican wolf, yet ensuring adequate habitat is available to support [the] recovered 

Mexican wolf population into the future is central to the recovery effort for the Mexican 

wolf (e.g., a potential stressor).” (AR D009189.) The Plan relies on the 2017 Biological 

Report, which cites a 2017 habitat suitability analysis stating, “results suggest that there is 

still sufficient habitat remaining . . . to support viable populations of the Mexican wolf in 

the wild.” (AR D009157.) Because the Service considered Factor A—“the present or 

threatened destruction, modification, or curtailment of its habitat range,” 16 U.S.C. § 

1533(a)(1)(A) —and found habitat was not a threat to the Mexican wolf, and because there 

is a rational basis for this conclusion, the Court concludes that the Service need not develop 

habitat criteria. Cf. Fund for Animals, 903 F. Supp. at 111 (recovery plan violated ESA 

because it identified habitat degradation to be a threat but failed to identify criteria to assess 

the present or threatened destruction of habitat).

//

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CONCLUSION

For the foregoing reasons, IT IS ORDERED:

1. The Motion for Summary Judgment filed by Plaintiffs Center for Biological 

Diversity et al. (Doc. 41 in 18-CV-00048-TUC-JGZ) is GRANTED IN PART AND 

DENIED IN PART; 

2. The Motion for Summary Judgment filed by Plaintiffs WildEarth Guardians et 

al. (Doc. 48 in 18-CV-00047-TUC-JGZ0) is DENIED;

3. Defendants’ Cross-Motions for Summary Judgment (Docs. 58 & 61 in 18-CV00047-TUC-JGZ and Docs. 44 & 47 in 18-CV-00048-TUC-JGZ) are GRANTED IN 

PART AND DENIED IN PART.

4. The Mexican Wolf Recovery Plan First Revision is REMANDED to the Service 

for further action consistent with this order. The Service must produce a draft recovery 

plan for public comment within six months that includes site-specific management actions, 

with a final plan to follow no later than six months thereafter.

Dated this 14th day of October, 2021.

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