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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

WildEarth Guardians, et al., 

Plaintiffs, 

v. 

Ryan Zinke, et al., 

Defendants. 

No. CV-18-00048-TUC-JGZ 

ORDER 

This case is brought by WildEarth Guardians, Western Watersheds Project, New 

Mexico Wilderness Alliance, and Wildlands Network against Secretary of the Interior 

Ryan Zinke, the United States Department of the Interior, Acting Director of the United 

States Fish and Wildlife Service Greg Sheehan, and the United States Fish and Wildlife 

Service (“FWS”). Plaintiffs challenge the FWS’s 2017 recovery plan for the Mexican grey 

wolf on various grounds. The Amended Complaint requests that the Court declare (1) that 

the FWS has violated Section 4(f) of the Endangered Species Act (“ESA”), 16 U.S.C § 

1533(f), as well as the Administrative Procedure Act (APA), 5 U.S.C. § 706(2), by issuing 

the 2017 recovery plan without explaining why the plan substantively departs from a 

previous draft plan, and that the FWS further violated Section 4(f) by (2) failing to provide 

site-specific management actions necessary for conservation, (3) failing to provide 

objective, measurable criteria necessary for delisting the Mexican grey wolf, and by (4) 

failing overall to utilize the best available science to ensure conservation of the wolves. 

The Amended Complaint requests that the Court remand this matter back to the FWS to 

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amend the recovery plan in compliance with the ESA. 

Pending before the Court is Defendants’ motion to dismiss for lack of subject matter 

jurisdiction. (Doc. 24.) Defendants argue that neither the citizen suit provision of the ESA 

nor the APA provide a basis for jurisdiction over the claims alleged in the Amended 

Complaint. For the reasons stated herein, this Court will grant the motion in part. 

I. BACKGROUND 

Congress enacted the ESA to protect and conserve endangered species. 16 U.S.C. § 

1531(b). The ESA is “the most comprehensive legislation for the preservation of 

endangered species ever enacted by any nation.” Tennessee Valley Authority v. Hill, 437 

U.S. 153, 180 (1978). The Supreme Court has stated that “beyond doubt . . . Congress 

intended endangered species to be afforded the highest of priorities,” and the “plain intent 

of Congress in enacting [the] statute was to halt and reverse the trend toward species 

extinction, whatever the cost.” Id. at 174, 184. “Under the ESA, the Secretary of the 

Interior . . . must identify endangered species, designate their ‘critical habitats,’ and 

develop and implement recovery plans.” Natural Resources Defense Council, Inc. v. 

United States Dept. of Interior, 13 Fed. Appx. 612, 615 (9th Cir. 2001). The Secretary's 

duties under the ESA are delegated to the FWS pursuant to 50 C.F.R. § 402.01(b). 

Section 4(f) of the ESA lays out a directive for 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.” 

16 U.S.C. § 1533(f)(2). Each plan must include, “to the maximum extent practicable,” a 

(1) description of site-specific management actions necessary to achieve conservation, (2) 

objective, measurable criteria that would result in delisting if met, and (3) time and cost 

estimates to carry out the steps needed to achieve the plan’s goals. 16 U.S.C. § 

1533(f)(1)(B). Prior to approving a recovery plan, 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.” 

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16 U.S.C. §§ 1533(f)(4), (5). Finally, in considering whether to remove a species from the 

endangered list, the Secretary must make his determination solely “on the basis of the best 

scientific commercial data available to him, after conducting a review of the status of the 

species[.]” 16 U.S.C. § 1533(b). 

 At issue here is the FWS’s latest recovery plan for the Mexican grey wolf. The 

Mexican grey wolf is native to the American Southwest. (Complaint ¶ 22.) Although the 

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

believed to be extinct in the wild. (Complaint ¶¶ 22-23.) In 1976, the Mexican grey wolf 

was listed as an endangered subspecies under the ESA, and in 1982, the FWS released what 

was titled a “Recovery Plan.” (Complaint ¶¶ 24, 26.) In 2010, the FWS appointed a 

Mexican Wolf Recovery Team with a Science and Planning Subgroup, and the group 

ultimately drafted an updated draft recovery plan. (Complaint ¶¶ 35, 41.) This proposed 

plan was never finalized under Section 4(f). (Complaint ¶ 44.) 

Plaintiffs filed suit in 2014 to compel the Secretary of the Interior and FWS to 

replace the 1982 recovery plan with a new one that would comply with new recovery plan 

requirements enacted in 1988. (Complaint ¶ 44.) Congress amended 16 U.S.C. § 1533(f) 

in 1988 to require that recovery plans incorporate “objective, measurable” delisting criteria. 

Endangered Species Act Amendments of 1988, Pub. L. No. 100-478, 102 Stat. 2306, 2306-

07 (1988). The Court denied the FWS’s motion to dismiss the complaint, concluding that 

Plaintiffs stated a valid claim alleging that the FWS failed to issue a revised plan that 

complied with the post-1988 requirements in Section 4(f) of the ESA, 16 U.S.C § 1533(f). 

Defs. of Wildlife v. Jewell, No. CV-14-02472, 2015 WL 11182029 (D. Ariz. Sept. 30, 

2015). As part of the ensuing settlement negotiations, the FWS agreed to prepare the 

recovery plan now subject to dispute. Defs. of Wildlife v. Jewell, No. CV-14-02472, 2016 

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

Plaintiffs allege that Defendants acted in an arbitrary and capricious manner by 

failing to provide any explanation for its decision not to adopt in the 2017 recovery plan 

some of the specific criteria set forth in the earlier draft recovery plan created by the 

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Mexican Wolf Recovery Team. (Complaint ¶¶ 55-59.) Plaintiffs further allege that 

Defendants have not included a description of site-specific management action necessary 

to conserve the wolf population or objective, measurable criteria that if met would result 

in a delisting of the species, and that the recovery plan fails to incorporate the best available 

science. (Complaint ¶¶ 61-80.) 

II. LEGAL STANDARD

 A motion to dismiss for subject matter jurisdiction is governed by Federal Rule of 

Civil Procedure 12(b)(1). Savage v. Glendale Union High Sch. Dist. No. 205, Maricopa 

Cty, 343 F.3d 1036, 1039-40 (9th Cir. 2001). “In a facial attack, the challenger asserts that 

the allegations contained in a complaint are insufficient on their face to invoke federal 

jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (citation 

omitted). The Court accepts all factual allegations as true and draws all inferences in 

plaintiffs’ favor. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). 

III. DISCUSSION 

 The parties dispute whether the court has jurisdiction to hear Plaintiffs’ claims 

under either of Plaintiffs’ asserted bases: the citizen suit provision of the ESA, and the 

APA. 

A. Differences Between the 2017 and Earlier Draft Plan

Plaintiffs first allege that Defendants violated the ESA by failing to provide a 

reasoned explanation for departing from a 2012 draft plan produced by the Mexican Wolf 

Recovery Team in the 2017 recovery plan produced by the FWS under Section 4’s 

procedural guidelines. (Complaint ¶¶ 55-59). As Defendants note, however, and Plaintiffs 

do not meaningfully appear to challenge,1

 there is no requirement under Section 4 that a 

recovery plan must conform to a prior draft, or even consider such a draft. See 16 U.S.C § 

1533(f) (specifying the required content and procedure for recovery plans under the ESA). 

This claim is therefore not cognizable under either the ESA or APA. 

 1

 In their response to Defendants’ motion to dismiss, Plaintiffs do not specifically respond to Defendants’ argument on this claim with any analysis. (Doc. 28.) 

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B. Jurisdiction Under the ESA’s Citizen Suit Provision for Remaining Claims 

Defendants argue that the citizen suit provision of the ESA does not confer 

jurisdiction for Plaintiffs’ challenge to the recovery plan. Section 11 of the ESA provides 

that a person may commence a civil suit “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). The “purpose of the 

particular provision in question is to encourage enforcement [of the ESA] by so-called 

‘private attorneys general,’” out of a recognition “that the overall subject matter of this 

legislation is the environment,” in which “it is common to think all persons have an 

interest.” Bennett v. Spear, 520 U.S. 154, 165 (1997). Although various environmental 

statutes contain a comparable citizen suit provision, the ESA permits “any person” to 

commence suit—“an authorization of remarkable breadth when compared with the 

language Congress ordinarily uses.” Id. at 164-65. The provision applies both to “actions 

against the Secretary asserting overenforcement under § 1533” and to “actions against the 

Secretary asserting underenforcement under § 1533,” but is cabined to challenges to the 

Secretary’s nondiscretionary duties. Id. at 166, 173. 

At issue is whether the allegations in Plaintiffs’ complaint challenge a discretionary 

action or a nondiscretionary duty under Section 4(f). As previously stated, Section 4(f), 

governing recovery plans, instructs that “[t]he Secretary shall develop and implement plans 

. . . for the conservation and survival of endangered species and threatened species listed 

pursuant to this section, unless he finds that such a plan will not promote the conservation 

of the species.” 16 U.S.C. § 1533(f)(1). Moreover, “[t]he Secretary, in developing and 

implementing recovery plans, shall, to the maximum extent practicable . . . incorporate in 

each plan” three elements: 

(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 

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

species be removed from the list; and 

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

needed to achieve the plan's goal and to achieve intermediate steps toward 

that goal. 

16 U.S.C. § 1533(f)(1)(B). Neither side disputes that the Secretary must implement a plan 

once a species is listed as endangered. See, e.g., Center for Biological Diversity v. Bureau 

of Land Mgmt., 35 F. Supp. 3d 1137, 1151 (N.D. Cal. 2014). The FWS argues, however, 

that as long as the recovery plan includes information relevant to the three elements listed 

in § 1533(f)(1)(B), the substance of the recovery plan is within the agency’s discretion and 

is therefore unreviewable. Plaintiffs respond that a challenge to a recovery plan is 

reviewable insofar as the plan fails to include site-specific management actions that will 

actually “achieve the plan’s goal for the conservation and survival of the species,” or 

“objective, measurable criteria” that will actually “result in a determination . . . that the 

species be removed from the list”—both of which plaintiffs allege are nondiscretionary 

duties. 

 Few cases address the issue presented here. See Friends of the Wild Swan, Inc. v. 

Thorson, 260 F. Supp. 3d 1338, 1342-43 (D. Or. 2017) (“binding authority on this issue is 

scant”). For the following reasons, however, the Court is not persuaded that Plaintiffs 

allege facts maintaining that the FWS has failed to perform a nondiscretionary duty.2

 Two 

factors inform this Court’s review of § 1533(f)—the nature of recovery plans, and the 

language of the statute. 

To begin, many cases in this jurisdiction and elsewhere have emphasized the nonbinding nature of recovery plans. As stated by the Ninth Circuit, “Recovery Plans are 

prepared in accordance with section 1533(f) of the Endangered Species Act for all 

 2

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endangered and threatened species, and while they provide guidance for the conservation 

of those species, they are not binding authorities.” Conservation Congress v. Finley, 774 

F.3d 611, 614 (9th Cir. 2014). The thrust of this case and others is that the FWS has a duty 

to put together a recovery plan for an endangered species where doing so would further the 

conservation of that species, but that the agency is not bound, from that point forward, to 

follow the recovery plan to the letter should unforeseen circumstances arise. See Cascadia 

Wildlands v. Bureau of Indian Affairs, 801 F.3d 1105, 1141 n.8 (9th Cir. 2015) (“The 

Endangered Species Act does not mandate compliance with recovery plans for endangered 

species.”); see also Fund for Animals, Inc. v. Rice, 85 F.3d 535, 547 (11th Cir. 1996) 

(“Section 1533(f) makes it plain that recovery plans are for guidance purposes only.”); 

Friends of Blackwater v. Salazar, 691 F.3d 428, 434 (D.C. Cir. 2012) (“A plan is a 

statement of intention, not a contract. If the plan is overtaken by events, then there is no 

need to change the plan; it may simply be irrelevant.”).3

 Relying on these cases, this Court 

previously found that “[r]ecovery plans do not govern all aspects of recovery under the 

ESA, but rather are non-binding statements of intention with regards to the agency’s longterm goal of conservation.” Ctr. for Biological Diversity v. Jewell, No. 15-cv-19, 2018 

WL 1586651, at *15 n. 14 (D. Ariz. Mar. 31, 2018). “Thus, even if Plaintiffs are correct 

as a policy matter that citizens should be allowed to challenge the way in which the 

Secretary incorporates the requirements from § 1533(f)(1)(B) into a recovery plan,” 

Friends of the Wild Swan, Inc. v. Thorson, 260 F. Supp. 3d 1338, 1342 (D. Or. 2017), this 

line of cases undercuts the legal force of recovery plans as well as the purpose of a detailed, 

substantive review of a plan’s content. 

The language of § 1533(f) supports a more deferential approach to recovery plans 

as well. Under § 1533(f)(1), “[t]he Secretary, in developing and implementing recovery 

plans, shall, to the maximum extent practicable,” incorporate into the plan the three 

 3

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elements listed under § 1533(f)(1)(B) (emphasis added). Thus, the agency has an 

obligation to incorporate site-specific management actions, objective and measurable 

criteria, and time and costs estimates—but the qualification of “to the maximum extent 

practicable,” in conjunction with the recurring description of recovery plans as 

“roadmaps,” suggests that these three elements are not subject to the same level of scrutiny 

as they might be where an action is taken to put into effect portions of the plan, pursuant 

to another section of the ESA. See Friends of the Wild Swan, Inc. v. Thorson, 260 F. Supp. 

3d at 1342 (“That this understanding of § 1533(f)(1)(B) limits the public's ability to 

challenge the content of recovery plans is undeniable. But it is clear from the statutory text 

that Congress intended there to be such limitation, at least to some extent.”); Strahan v. 

Linnon, 967 F. Supp. 581, 597–98 (D. Mass. 1997) (“While it is true that § 4(f) ‘does not 

permit an agency unbridled discretion,’ and ‘imposes a clear duty on the agency to fulfill 

the statutory command to the extent it is feasible or possible’ . . . the requirement does not 

mean that the agency can be forced to include specific measures in its recovery plan.”); see 

also Ctr. for Biological Diversity v. Jewell, No. 15-cv-19, 2018 WL 1586651, at *15 (“even 

if the recovery plan contained all terms promised by Defendants here, there is no guarantee 

that those terms will protect against the harms that the Court finds presented by the 10(j) 

rule”). 

Although this Court is persuaded that the 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. “A citizen may still bring suit under § 1540(g) when 

the Secretary fails to incorporate, to the maximum extent possible, one of the requirements 

from § 1533(f)(1)(B) in a given recovery plan.” Friends of the Wild Swan, Inc. v. Thorson, 

260 F. Supp. 3d at 1342; see also Grand Canyon Trust v. Norton, 2006 WL 167560, at *5 

(“Defendants fail to argue that it was not ‘practicable’ to include the estimates in the 

Recovery Goals, and therefore, they are not excused from this requirement.”). Further, the 

agency is still bound to follow notice and comment and other requisite procedures in 

drafting a recovery plan, so as to establish that the agency has given its draft plan the proper 

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degree of consideration. See Bennett v. Spear, 520 U.S. at 172 (“It is rudimentary 

administrative law that discretion as to the substance of the ultimate decision does not 

confer discretion to ignore the required procedures of decisionmaking.”); Weyerhaeuser 

Co. v. U.S. Fish and Wildlife Serv., 139 S.Ct. 361, 371 (2018) ("The use of the word 'may' 

certainly confers discretion on the Secretary. That does not, however, segregate his 

discretionary decision not to exclude from the procedure mandated by Section 4(b)(2), 

which directs the Secretary to consider the economic and other impacts of designation 

when making his exclusion decisions."); Fund for Animals v. Babbitt, 903 F. Supp. 96, 108 

(D.D.C. 1995) (“A recovery plan that recognizes specific threats to conservation and 

survival of 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. Nor would a Plan that completely ignores threats to conservation and 

survival of a species.”). The Secretary is not necessarily obligated, however, to include any 

one particular suggestion that any given person deems important for species conservation. 

 The above understanding of a court’s proper review of § 1533(f)’s requirements also 

supports this Court’s conclusion that a recovery plan does not have to be based on the “best 

available science.” Section 4(a) lists the criteria that the Secretary shall consider when 

determining whether a species is endangered or threatened, and commands that the 

Secretary, concurrent with that decision, designate critical habitat of such species. 16 U.S.C 

§ 1533(a)(1), (3). In doing so, Section 4(b) instructs that the Secretary make such 

determinations on the basis of the best scientific data available. 16 U.S.C § 1533(b)(1), 

(2). Likewise, when the Secretary decides whether to remove a species from the 

endangered species list, the Secretary must use the best available science. 16 U.S.C § 

1533(c)(2). Plaintiffs argue that because recovery plans must include objective criteria that 

would result in the delisting of a species, and because delisting determinations must be 

based on the best available science, the criteria themselves must be based upon the best 

available science. Section 4(f), however, unlike its statutory counterparts, does not include 

a “best available science” mandate. See Stewart v. Ragland, 934 F.2d 1033, 1041 (9th Cir. 

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1991) (“When certain statutory provisions contain a requirement and others do not, we 

should assume that the legislature intended both the inclusion and the exclusion of the 

requirement.”); see also Friends of Blackwater v. Salazar, 691 F.3d 428, 432-34 

(distinguishing between delisting criteria and recovery plan criteria). Although the FWS 

might logically aim to incorporate the best available science where practicable, whether 

the agency does so or not is a separate inquiry from whether the agency has produced a 

recovery plan that satisfies Section 4(f). 

 The remaining allegations in Plaintiffs’ Amended Complaint largely dispute the 

substance of the recovery plan by disagreeing with the FWS’s conclusions and scientific 

underpinnings. In their second count, Plaintiffs allege that the site-specific management 

actions included in the recovery plan will not further the conservation of the Mexican 

wolves, and that the action items identified in the plan are inadequate and difficult to 

monitor. (Amended Complaint, ¶¶ 62-63.) In their third count, Plaintiffs allege that the 

FWS’s criteria “is not objective and is not adequately measurable,” and “would not result 

in a determination that Mexican wolves should be down listed or qualify for delisting due 

to recovery.” (Amended Complaint, ¶¶ 67-68) Finally, in their fourth count, Plaintiffs 

allege that the FWS failed to utilize the best available science throughout the recovery plan. 

(Amended Complaint, ¶¶ 75-79.) These allegations are, in essence, disagreements with the 

FWS’s determination as to how to best provide for the conservation and survival of the 

Mexican gray wolf—which are determinations within the agency’s discretion and therefore 

unreviewable under the ESA’s citizen-suit provision. 

 Plaintiffs further allege that the FWS failed to address all threats to Mexican wolves 

in its recovery plan. (Amended Complaint, ¶ 69.) To the extent that these allegations are 

not mere disagreements with conclusions drawn by the agency as to how best to address 

the threats, but are allegations that 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, these allegations are different from those in the remainder of the 

complaint. See Fund for Animals v. Babbitt, 903 F. Supp. At 108 (“A recovery plan that 

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recognizes specific threats to conservation and survival of 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.”); cf. Friends 

of the Wild Swan, Inc. v. Thorson, No. 3:16-cv-681, 2017 WL 7310641, at *10 (D. Or. Jan. 

5, 2017) (“While this claim references one or two of the items delineated in § 

1533(f)(1)(B), it does not allege such items were not addressed in the Plan”). Accepting 

all factual allegations as true and drawing all inferences in plaintiffs’ favor, Wolfe v. 

Strankman, 392 F.3d at 362, this Court has jurisdiction under § 1540(g)(1)(C) to consider 

challenges to the Secretary's failure to include these items. 

C. Jurisdiction under the APA

The Court also concludes that Plaintiffs have not stated a claim under the APA. The 

APA provides that “[a]gency action made reviewable by statute and final agency action for 

which there is no other adequate remedy in a court are subject to judicial review.” 5 U.S.C. 

§ 704. Plaintiffs argue that the recovery plan constitutes a “final agency action,” whereas 

Defendants emphasize again that a recovery plan is a guidance document without legal 

consequences, which may be modified over time. 

“For an agency action to be final, the action must (1) ‘mark the consummation of 

the agency’s decisionmaking process’ and (2) ‘be one by which rights or obligations have 

been determined, or from which legal consequences will flow.’” Or. Nat. Desert Ass’n v. 

U.S. Forest Serv., 465 F.3d 977, 982 (9th Cir. 2006) (quoting Bennett v. Spear, 520 U.S. 

154, 178 (1997)). As already stated, the Ninth Circuit has concluded that recovery plans 

“are not binding authorities.” Conservation Congress v. Finley, 774 F.3d at 614, and that 

“[t]he Endangered Species Act does not mandate compliance with recovery plans for 

endangered species.” Cascadia Wildlands v. Bureau of Indian Affairs, 801 F.3d at 1141 

n.8. Thus, this Court is not persuaded that recovery plans constitute an agency action “by 

which rights or obligations have been determined, or from which legal consequences will 

flow.” Bennett v. Spear, 520 U.S. at 170.4

 4

 Defendants provide as supplemental authority for this proposition Friends of the Wild Swan v. Inc. v. Director of the U.S. Fish and Wildlife Service, 745 Fed.Appx. 718, at 

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Conclusion 

 For the foregoing reasons, Defendants’ motion to dismiss (Doc. 24) is GRANTED 

in part and DENIED in part. 

 Dated this 30th day of March, 2019. 

 

*721 (9th Cir. 2018). Although this Court recognizes that the analysis in that court reached the same conclusion, this Court is unable to rely on this unpublished authority. 9th Cir. R. 36-3. 

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