Mon, 25 Sep 2023

(CN) - A Ninth Circuit panel heard arguments Monday over whether the U.S. Fish and Wildlife Service must once again rewrite its recovery plan for the endangered Mexican wolf. 

Having been nearly wiped out in the 20th century, Mexican wolves, a subspecies of the North American gray wolf, were listed as endangered in 1976, when only seven captive wolves made up the entire population. All living Mexican wolves are descendants of those seven. Recovery programs grew the population, but illegal human killings kept the numbers low, with only 46 recorded in 2010.

The FWS's 2012 recovery plan called for three wild populations: two in Arizona and one along the Colorado-New Mexico border. The states took issue with that plan and sued. The subsequent settlement resulted in a new 2017 recovery plan with only two populations: one in the U.S. and one in Mexico. 

Conservation groups WildEarth Guardians and the Western Watersheds Project sued the FWS in 2018 over the new plan, saying it violated the Endangered Species Act by failing to provide site-specific management actions and objective, measurable criteria for eventual delisting, or utilize the "best available science." The Center for Biological Diversity filed a similar lawsuit in 2018, and the two were consolidated the following year. 

U.S. District Judge Jennifer Zipps issued summary judgment in October 2021 in favor of the FWS on WildEarth's claims, but agreed with the Center for Biological Diversity that the plan didn't include site-specific management data and ordered the agency to reissue the plan after addressing those problems. 

Both sides appealed the decision in January 2022, leading to Monday's hearing in the Ninth Circuit.

The FWS argues the case is moot because the new plan replaced the 2017 plan. Not only does the challenged plan no longer exist, the agency's attorney Dina Mishra told the panel, but the 2022 plan has already increased the Mexican wolf population to 241, more than double the number at the time of the 2017 plan. 

"A fact that should give this court some comfort about the direction that things are going here," Mishra said. 

Attorney Elizabeth Forsyth, on behalf of the Center for Biological Diversity, argued the case isn't moot because the new plan is so similar to the old one. Aside from adding elements to address the illegal human killings of wolves and how that affects site-specific management, the criteria used in the recovery plan remain the same.

If the panel were to decide the case is moot, Forsyth said, the environmental groups would have to go back through the district court just to end up back before the Ninth Circuit on the exact same issues, wasting precious time that endangered species don't have the luxury of.

"That is more wasteful than frugal here," she said. 

Even if the judges decide the case isn't moot, Mishra said they should still rule in the government's favor because the remaining issues are discretionary actions.

Svend Brandt-Erichsen, an attorney for intervening defendant New Mexico Department of Fish and Game, explained that because recovery plans aren't final agency actions, parties can only challenge non-discretionary actions. Because the challenge goes to the substance of the recovery plan rather than just the existence of one, he said, it must be dismissed. 

Forsyth said what the groups are challenging isn't discretionary because creating a recovery plan for endangered animals is required by law, not something the agency can decide whether to do.

Attorney Matthew Bishop, representing WildEarth Guardians, said the FWS ignored the rules governing the selection of criteria for a recovery plan, which aren't discretionary in nature.

"Having discretion over the substance of the decision does not give the agency discretion to ignore the required procedures," Bishop said.

One of those procedures is using the best available science to make decisions, which the groups argue the FWS didn't use while creating its recovery plan. Bishop said it's impossible to come to a determination to remove a species from the endangered list based on the best available evidence if the recovery plan to do so wasn't also based on that science. 

U.S. Circuit Judge Lucy Koh, an appointee of President Joe Biden, agreed.

"It just seems illogical that the criteria would not be based on the best available science but the result has to be," she said. 

Mishra disagreed. She told the panel that the agency must only use "objective and measurable criteria" in a recovery plan, which represents the preliminary phase of the process. 

"How do you get a result?" Koh asked, still unconvinced. "You accidentally get to a result based on the best available science but you don't use it?"

U.S. Circuit Judge Eric Miller, a Donald Trump appointee, and Senior U.S. District Judge Donald Molloy, sitting by designation from the District of Montana, rounded out the panel. 

It's unclear when the panel will issue a decision.

Source: Courthouse News Service

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