Ctr. for Biological Diversity v. Haaland

• Decision Date: 14 October 2021
• Docket Number: 4:18-CV-00047-TUC-JGZ (Lead), 4:18-CV-00048-TUC-JGZ (Member)
• Citation: 562 F.Supp.3d 68
• Parties: CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs, v. Deb HAALAND, et al., Defendants, and New Mexico Department of Game and Fish, Defendant-Intervenor. WildEarth Guardians, et al., Plaintiffs, v. Deb Haaland, et al., et al., Defendants, and New Mexico Department of Game and Fish, Defendant-Intervenor.
• Court: U.S. District Court — District of Arizona

562 F.Supp.3d 68

CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs,

v.Deb HAALAND, et al., Defendants,andNew Mexico Department of Game and Fish, Defendant-Intervenor.

WildEarth Guardians, et al., Plaintiffs,

v.Deb Haaland, et al., et al., Defendants,andNew Mexico Department of Game and Fish, Defendant-Intervenor.

4:18-CV-00047-TUC-JGZ (Lead), 4:18-CV-00048-TUC-JGZ (Member)

United States District Court, D. Arizona.

Signed October 14, 2021

Elizabeth B. Forsyth, Pro Hac Vice, Earthjustice, Seattle, WA, Timothy J. Preso, Pro Hac Vice, Earthjustice, Bozeman, MT, for Plaintiffs Center for Biological Diversity, Defenders of Wildlife, Endangered Wolf Center, David R. Parsons, Wolf Conservation Center.

John R. Mellgren, Pro Hac Vice, Western Environmental Law Center, Eugene, OR, Matthew K. Bishop, Pro Hac Vice, Western Environmental Law Center, Helena, MT, for Plaintiffs WildEarth Guardians in 4:18-CV-00047-TUC-JGZ, 4:18-CV-00048-TUC-JGZ, Western Watersheds Project in 4:18-CV-00047-TUC-JGZ, 4:18-CV-00048-TUC-JGZ.

Anthony Dolendo Ortiz, US Dept. of Justice, Washington, DC, for Defendants Ryan Zinke in 4:18-CV-00048-TUC-JGZ, 4:18-CV-00047-TUC-JGZ, United States Fish and Wildlife Service in 4:18-CV-00048-TUC-JGZ, 4:18-CV-00047-TUC-JGZ, Amy Lueders in 4:18-CV-00047-TUC-JGZ, United States Department of the Interior in 4:18-CV-00048-TUC-JGZ, 4:18-CV-00047-TUC-JGZ, Greg Sheehan in 4:18-CV-00047-TUC-JGZ, 4:18-CV-00048-TUC-JGZ.

Michael J. Thomas, Pro Hac Vice, New Mexico Department of Game and Fish, Santa Fe, NM, Paul S. Weiland, Pro Hac Vice, Nossaman LLP, Irvine, CA, for Defendant-Intervenor in 4:18-CV-00047-TUC-JGZ.

Jacob Payne, Pro Hac Vice, New Mexico Department of Game and Fish, Santa Fe, NM, Paul S. Weiland, Pro Hac Vice, Nossaman LLP, Irvine, CA, for Defendant-Intervenor in 4:18-CV-00048-TUC-JGZ.

ORDER

Jennifer G. Zipps, United States District Judge

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 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, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). "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. 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. § 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, 117 S.Ct. 1154, 137 L.Ed.2d 281 (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 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 site-specific-management actions to address threats, or otherwise failed to offer a reason why it...