Timothy J. Preso (Montana Bar No. 5255) 

Earthjustice 

313 East Main Street 

Bozeman, MT 59715 

tpreso@earthjustice.org 

Fax: (406) 586-9695 

Phone: (406) 586-9699 

Heidi McIntosh (Utah Bar No. 6277) 

Earthjustice 

633 17th Street, Suite 1600 

Denver, CO 80202 

hmcintosh@earthjustice.org 

Fax: (303) 623-8083 

Phone: (303) 623-9466 

Attorneys for Plaintiffs Center for Biological 

Diversity and Defenders of Wildlife 

Andrea Santarsiere (Idaho Bar No. 8818) 

Center for Biological Diversity 

P.O. Box 469 

Victor, ID 83455 

asantarsiere@biologicaldiversity.org 

Phone: (303) 854-7748 

Attorney for Plaintiff Center for Biological Diversity 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Center for Biological Diversity; Defenders of 

Wildlife, 

 Plaintiffs, 

 vs. 

Ryan Zinke, Secretary of the Interior; United 

States Fish and Wildlife Service, 

 Defendants. 

______________________________________

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No. 15-cv-00019-TUC-JGZ 

(lead); 

No. 15-cv-00179-TUC-JGZ (c); 

No. 15-cv-00285-TUC-JGZ (c). 

MOTION TO TRANSFER

No. 18-cv-00047-TUC-JAS 

(BGM) 

Case 4:18-cv-00047-JGZ Document 13 Filed 03/02/18 Page 1 of 12
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I. Introduction 

Pursuant to Local Civil Rule 42.1, plaintiffs Center for Biological Diversity and 

Defenders of Wildlife in case No. 15-cv-00019-TUC-JGZ hereby respectfully move to 

transfer their recently filed case, Center for Biological Diversity, et al. v. Ryan Zinke, et 

al., No. 18-cv-00047-TUC-JAS (BGM) (“Mexican Wolf Recovery Plan Case”), to the 

Honorable Judge Jennifer G. Zipps. 

The case proposed for transfer challenges the U.S. Fish and Wildlife Service’s 

November 2017 recovery plan for the Mexican gray wolf, and is related to three 

consolidated cases challenging the Service’s rule governing the Mexican gray wolf 

experimental population currently pending before Judge Zipps: Center for Biological 

Diversity, et al. v. Sally Jewell, et al., No. 15-cv-00019-TUC-JGZ; WildEarth Guardians, 

et al., v. Daniel Ashe, et al., No. 15-cv-00285-TUC-JGZ; and Arizona and New Mexico 

Coalition of Counties for Economic Growth, et al. v. United States Fish and Wildlife 

Service, et al., No. 15-cv-00179-TUC-JGZ, as well as a fourth case pending before Judge 

Zipps that also challenges the same rule but has not been consolidated: Safari Club 

International v. Sally Jewell, et al., No. 16-cv-00094-TUC-JGZ (the “Mexican Wolf 10(j) 

Rule Cases”). The Mexican Wolf Recovery Plan Case and Mexican Wolf 10(j) Rule 

Cases share substantially similar facts, law, and parties, and it is in the interest of judicial 

economy for them to be heard in front of Judge Zipps, who is familiar with the issues 

involved in the cases. 

Case 4:18-cv-00047-JGZ Document 13 Filed 03/02/18 Page 2 of 12
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Plaintiffs have contacted counsel for the other parties regarding the relief 

requested in this motion. Counsel for Federal Defendants advised that they will reserve 

their position pending a review of this motion. Plaintiffs did not receive a response from 

defendant-intervenors before filing this motion. 

II. Background 

The Mexican gray wolf (Canis lupus baileyi) is one of the most imperiled 

mammals in North America and has been listed as an endangered species under the 

Endangered Species Act (“ESA”) since 1976. Like wolves elsewhere across the United 

States, this subspecies of wolf of the American Southwest and Mexico was driven to near 

extinction as a result of government predator killing in the early to mid-20th century. The 

species was reduced to only seven individuals in captivity before a captive breeding 

program allowed the Fish and Wildlife Service to begin reintroducing Mexican gray 

wolves into the wild as an experimental population under the ESA in 1998. Nevertheless, 

as of 2017, only 114 wolves could be counted in the wild in the United States in a single, 

genetically-depressed population in a small area of eastern Arizona and western New 

Mexico. Wolf numbers in the reintroduced population remain far below the numbers that 

experts recommend as necessary to ensure the wolf’s survival and successful recovery, 

and the genetic status of the U.S. wild population has deteriorated markedly since 

reintroduction 20 years ago. 

The Fish and Wildlife Service is tasked with ensuring the conservation and 

survival of the Mexican gray wolf under the ESA. Over the past four years, the agency’s 

Case 4:18-cv-00047-JGZ Document 13 Filed 03/02/18 Page 3 of 12
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actions and inaction with respect to Mexican wolf management have generated 

substantial litigation before this Court. 

In 2014, plaintiffs Center for Biological Diversity and Defenders of Wildlife, 

joined by the Endangered Wolf Center, David R. Parsons, and the Wolf Conservation 

Center, filed suit against the Secretary of Interior and the Fish and Wildlife Service for 

failing to prepare a recovery plan for the Mexican gray wolf. That case, Defenders of 

Wildlife v. Jewell, No. 14-cv-02472-TUC-JGZ, was initially assigned to Judge Zapata. 

Beginning in January 2015, the Mexican Wolf 10(j) Rule Cases were filed in this 

Court, where they were assigned to Judge Zipps. Following those filings, Judge Zapata 

reassigned the then-pending case challenging the lack of a recovery plan, No. 14-cv2472-TUC-JGZ, to Judge Zipps pursuant to Local Civil Rule 42.1(e)(1) and (2). See 

Order, Defs. of Wildlife v. Jewell, No. 14-cv-02472-TUC-JGZ (D. Ariz. July 13, 2015) 

(ECF No. 30) (attached). Thereafter, as a result of a settlement negotiated to resolve that 

recovery plan lawsuit and approved by Judge Zipps in 2016, the Service agreed to 

prepare a recovery plan for the Mexican wolf by November 2017. Defs. of Wildlife v. 

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

The Mexican Wolf 10(j) Rule Cases remain pending before Judge Zipps. These 

cases challenge the Fish and Wildlife Service’s January 16, 2015, revised rule, 

promulgated under section 10(j) of the ESA, 16 U.S.C. § 1539(j), governing the 

management of the Mexican gray wolf as an experimental population and an associated 

ESA section 10(a)(1)(A) research and recovery permit. In case No. 15-cv-00019-TUCCase 4:18-cv-00047-JGZ Document 13 Filed 03/02/18 Page 4 of 12
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JGZ, plaintiffs Center for Biological Diversity and Defenders of Wildlife challenge the 

rule’s imposition of limitations on both the size of the experimental population and the 

geographic range of the Mexican gray wolf and assert that these limitations conflict with 

the best available scientific information on wolf survival and recovery. Plaintiffs allege 

that the 10(a)(1)(A) permit would unlawfully implement the rule’s geographic restriction, 

authorizing the removal of Mexican gray wolves that stray outside an administrative 

boundary, and that the revised rule also unlawfully loosens provisions governing the 

removal or killing of Mexican gray wolves, which would both depress wolf numbers and 

threaten genetic diversity. 

As adjudication of the Mexican Wolf 10(j) Rule Cases has proceeded, the Fish and 

Wildlife Service has moved forward with the recovery planning process required by the 

2016 settlement agreement in case No. 14-cv-02472-TUC-JGZ. On November 29, 2017, 

the Fish and Wildlife Service issued its Final Mexican Wolf Recovery Plan. Because the 

Plan fails to comply with the Endangered Species Act’s requirements for recovery plans, 

plaintiffs Center for Biological Diversity and Defenders of Wildlife, joined by the 

Endangered Wolf Center, David R. Parsons, and the Wolf Conservation Center, filed the 

Mexican Wolf Recovery Plan Case on January 30, 2018. Center for Biological Diversity, 

et al. v. Ryan Zinke, et al., No. 18-cv-00047-TUC-JAS. Plaintiffs allege that the recovery 

plan—like the 10(j) rule—arbitrarily and unlawfully sets population and geographic 

management targets that are inadequate to ensure the wolf’s conservation and survival 

and defy the best available scientific information. This case has been assigned to Judge 

Case 4:18-cv-00047-JGZ Document 13 Filed 03/02/18 Page 5 of 12
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Soto, who has referred the case to Magistrate Judge Macdonald for pretrial proceedings 

and a report and recommendation.1

III. Argument 

Plaintiffs’ Mexican Wolf Recovery Plan Case should be reassigned to Judge 

Zipps. Local Civil Rule 42.1 provides that a party may file a motion to transfer cases 

pending before different judges to a single judge on the grounds that the cases: 

(1) arise from substantially the same transaction or event; (2) involve 

substantially the same parties or property; (3) involve the same patent, 

trademark, or copyright; (4) call for determination of substantially the 

same questions of law; or (5) for any other reason would entail

substantial duplication of labor if heard by different Judges. 

LRCiv 42.1(a). Each of these factors provides an independently sufficient basis for 

moving to transfer a case. See, e.g., Smith v. Sperling, No. 11-cv-00722-PHX-PGR, 2011 

WL 4101508, at *1 (D. Ariz. Sept. 14, 2011). If a motion to transfer a case is granted, 

assignment to a judge is based on: 

(1) whether substantive matters have been considered in a case; (2) which 

Judge has the most familiarity with the issues involved in the cases; 

(3) whether a case is reasonably viewed as the lead or principal case; or 

(4) any other factor serving the interest of judicial economy. 

LRCiv 42.1(d). 

 

1 Separately, another group of plaintiffs, WildEarth Guardians and Western Watersheds 

Project, independently filed their own complaint challenging the Mexican wolf recovery 

plan on January 30, similarly alleging that the recovery plan fails to comply with the 

ESA. WildEarth Guardians, et al. v. Ryan Zinke, et al., No. 18-cv-00048-TUC-RCC. 

Their case has been assigned to Chief Judge Collins. Thus, there are two separate 

challenges to the Mexican Wolf Recovery Plan pending before two different judges of 

this Court in addition to the Mexican Wolf 10(j) Rule Cases pending before Judge Zipps. 

Case 4:18-cv-00047-JGZ Document 13 Filed 03/02/18 Page 6 of 12
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 Here, this Court has already determined that application of this rule supports 

adjudication of Mexican wolf recovery planning issues and 10(j) issues before the same 

district judge. As discussed, Judge Zapata in 2015 voluntarily transferred the plaintiffs’ 

case challenging the Fish and Wildlife Service’s failure to prepare a Mexican wolf 

recovery plan to Judge Zipps following the assignment of the Mexican Wolf 10(j) Rule 

Cases to Judge Zipps. See Order, Defs. of Wildlife v. Jewell, No. 14-cv-02472-TUC-JGZ

(D. Ariz. July 13, 2015) (ECF No. 30) (attached). Parallel circumstances support an 

identical result under Rule 42.1 here. 

First, the Mexican Wolf Recovery Plan Case shares substantial factual 

underpinnings with the Mexican Wolf 10(j) Rule Cases now pending before Judge Zipps. 

Both the Mexican Wolf Recovery Plan Case and the Mexican Wolf 10(j) Rule Cases 

involve the same factual circumstances concerning the status, survival, and recovery of 

the Mexican wolf, and both challenge the Fish and Wildlife Service’s management of the 

Mexican wolf. Both raise similar questions concerning the application of the best 

available scientific information concerning Mexican wolf survival and recovery. Thus, 

many of the factual underpinnings of the cases are the same, satisfying Local Civil Rule 

42.1(a)(1). See, e.g., Smith, 2011 WL 4101508, at *3 (transferring a case under Rule 

42.1(a)(1) that was based on “substantially the same facts” as another case). 

Second, the cases “involve substantially the same parties,” satisfying Local Civil 

Rule 42.1(a)(2). The defendants in both sets of cases are substantially similar, as the Fish 

and Wildlife Service and Secretary of Interior are defendants in both the Mexican Wolf 

Case 4:18-cv-00047-JGZ Document 13 Filed 03/02/18 Page 7 of 12
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10(j) Rule Cases and Mexican Wolf Recovery Plan Case. The plaintiffs in the two sets of 

cases also share substantial overlap: Center for Biological Diversity and Defenders of 

Wildlife have challenged both the 10(j) rule in case No. 15-cv-00019-TUC-JGZ and the 

recovery plan in case No. 18-cv-00047-TUC-JAS (BGM). 

Third, the Mexican Wolf 10(j) Rule Cases and the Mexican Wolf Recovery Plan 

Case call for determination of substantially overlapping questions of law concerning 

whether the Fish and Wildlife Service has complied with the Endangered Species Act in 

its management of the Mexican gray wolf. Although the Mexican Wolf 10(j) Rule Cases 

and the Mexican Wolf Recovery Plan Case challenge separate actions and implicate 

separate requirements of the Endangered Species Act, “exactness” of legal claims “is not 

the standard.” Parra v. Bashas’ Inc., No. 02-cv-00591-PHX-RCB, 2009 WL 1024615, at 

*5 (D. Ariz. Apr. 15, 2009). Rather, even when the legal issues “may vary somewhat,” 

Local Civil Rule 42.1(a)(4) promotes transfer when there is similarity in the claims. Id.

That similarity exists here, where the overarching statutory framework is the same in both 

sets of cases, and where in both sets of cases plaintiffs allege that the Fish and Wildlife 

Service has breached its fundamental duty to provide for the survival and recovery of the 

endangered Mexican gray wolf. Compare, e.g., Amended Complaint, Center for 

Biological Diversity, et al. v. Sally Jewell, et al., No. 15-cv-00019-TUC-JGZ, ¶¶ 113-16 

(ECF No. 19) (plaintiffs’ 10(j) case alleging that the Fish and Wildlife Service failed to 

provide for the Mexican gray wolf’s recovery) with Complaint, Center for Biological 

Diversity, et al. v. Ryan Zinke, et al., No. 18-cv-00047-TUC-JAS (BGM) ¶¶ 2, 74 (ECF 

Case 4:18-cv-00047-JGZ Document 13 Filed 03/02/18 Page 8 of 12
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No. 1) (Mexican Wolf Recovery Plan Case alleging that the Fish and Wildlife Service 

failed to provide for the Mexican gray wolf’s recovery). Indeed, both cases present 

questions about the Fish and Wildlife Service’s compliance with the Endangered Species 

Act when imposing population limits and geographic restrictions on the scope of 

Mexican wolf recovery. Compare, e.g., Amended Complaint, Center for Biological 

Diversity, et al. v. Sally Jewell, et al., No. 15-cv-00019-TUC-JGZ, ¶¶ 40-74, 89-108 

(ECF No. 19) (10(j) case) with Complaint, Center for Biological Diversity, et al. v. Ryan 

Zinke, et al., No. 18-cv-00047-TUC-JAS (BGM) ¶¶ 31-66 (ECF No. 1) (Mexican Wolf 

Recovery Plan Case). The cases thus satisfy Local Civil Rule 42.1(a)(4). 

Finally, and most importantly, the Mexican Wolf Recovery Plan Case should be 

transferred to Judge Zipps because of the substantial duplication of labor that would be 

avoided by transfer. Judge Zipps has already presided over the Mexican Wolf 10(j) Rule 

Cases for the past three years. In addition, Judge Zipps presided over Defenders of 

Wildlife v. Jewell, No. 14-cv-02472-TUC-JGZ, which challenged the Fish and Wildlife 

Service’s initial failure to prepare a recovery plan and which was transferred to Judge 

Zipps pursuant to Local Civil Rule 42.1 based on the same considerations raised by this 

motion. Judge Zipps therefore “has the most familiarity with the issues involved in the 

cases,” including the legal and factual issues regarding Mexican gray wolf recovery 

planning. LRCiv 42.1(d). In contrast, because the Mexican Wolf Recovery Plan Case was 

filed only recently and is in its earliest stage, neither Judge Soto nor Magistrate Judge 

Macdonald has yet considered any substantive matters. Thus, the interest of judicial 

Case 4:18-cv-00047-JGZ Document 13 Filed 03/02/18 Page 9 of 12
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economy would best be served by transferring the case to Judge Zipps under Local Civil 

Rule 42.1(a)(5) and (d). See Parra, 2009 WL 1024615, at *6 (finding that transfer of case 

to judge who had heard earlier, related matter was in the interest of judicial economy 

when judge initially assigned to the case had issued only scheduling orders and had yet to 

consider any substantive matters). 

IV. Conclusion 

For the forgoing reasons, this Court should transfer Center for Biological 

Diversity, et al. v. Ryan Zinke, et al., No. 18-cv-00047-TUC-JAS (BGM) to the 

Honorable Judge Jennifer G. Zipps. 

 

DATED March 2, 2018 

 s/ Timothy J. Preso 

Timothy J. Preso (Montana Bar No. 5255) 

Earthjustice 

313 East Main Street 

Bozeman, MT 59715 

tpreso@earthjustice.org 

Fax: (406) 586-9695 

Phone: (406) 586-9699 

Heidi McIntosh (Utah Bar No. 6277) 

Earthjustice 

633 17th Street, Suite 1600 

Denver, CO 80202 

hmcintosh@earthjustice.org 

Fax: (303) 623-8083 

Phone: (303) 623-9466 

Attorneys for Plaintiffs Center for 

Biological Diversity and Defenders of 

Wildlife 

Case 4:18-cv-00047-JGZ Document 13 Filed 03/02/18 Page 10 of 12
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Andrea Santarsiere (Idaho Bar No. 8818) 

Center for Biological Diversity 

P.O. Box 469 

Victor, ID 83455 

asantarsiere@biologicaldiversity.org 

Phone: (303) 854-7748 

Attorney for Plaintiff Center for Biological 

Diversity 

Case 4:18-cv-00047-JGZ Document 13 Filed 03/02/18 Page 11 of 12
CERTIFICATE OF SERVICE 

 I hereby certify that on March 2, 2018, I electronically transmitted the attached 

document to the Clerk’s Office using 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/ Timothy J. Preso 

 Timothy J. Preso 

 

Case 4:18-cv-00047-JGZ Document 13 Filed 03/02/18 Page 12 of 12