Case 4:21-cv-00561-JSW Document 118 Filed 02/10/22 Page 1 of 26
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
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`Case No. 21-cv-00344-JSW
` 21-cv-00349-JSW
` 21-cv-00561-JSW
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`ORDER RESOLVING CROSS-
`MOTIONS FOR SUMMARY
`JUDGMENT
`Re: Dkt. Nos. 74, 107, 109, 111
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`DEFENDERS OF WILDLIFE, et al.,
`Plaintiffs,
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`v.
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`U.S. FISH AND WILDLIFE SERVICE, et
`al.,
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`Defendants.
`WILDEARTH GUARDIANS, et al.,
`Plaintiffs,
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`v.
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`UNITED STATES DEPARTMENT OF
`THE INTERIOR, et al.,
`Defendants.
`NATURAL RESOURCES DEFENSE
`COUNCIL, INC.,
`Plaintiff,
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`v.
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`UNITED STATES DEPARTMENT OF
`THE INTERIOR, et al.,
`Defendants.
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`Case 4:21-cv-00561-JSW Document 118 Filed 02/10/22 Page 2 of 26
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`Now before the Court for consideration are: (1) Plaintiffs’ motion for summary judgment,
`filed by the plaintiffs in these related cases (collectively “Plaintiffs”)1 (Dkt. No. 74, “Plaintiffs’
`MSJ) 2; (2) Defendants’ cross-motion for summary judgment, filed by the United States Fish and
`Wildlife Service, et. al., (collectively “Federal Defendants”) (Dkt. No. 107, “Federal Defendants’
`Cross-MSJ”); (3) Intervenor-Defendants’ cross-motion for summary judgment filed by the State of
`Utah (“Utah”) (Dkt. No. 109); and (4) Intervenor-Defendants’ cross-motion for summary
`judgment filed by the National Rifle Association of America and Safari Club International
`(collectively, “NRA”) (Dkt. No. 111). The Court has considered the parties’ papers, relevant legal
`authority, the record in this case, and had the benefit of oral argument.3 For the reasons below, the
`Court GRANTS, IN PART, and DENIES, IN PART, Plaintiffs’ motion for summary judgment
`and therefore GRANTS, IN PART, and DENIES, IN PART, the Federal Defendants and
`Intervenor-Defendants’ motions.
`
`BACKGROUND
`These three related cases challenge the recent rule enacted by the Department of the
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`Interior and the National Fish and Wildlife Service (the “Service”), which removes federal
`protections for the gray wolf population. Plaintiffs challenge the rule as a violation of the
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`The plaintiffs in the three related cases are as follows: In case number 4:21-cv-344-JSW,
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`Defenders of Wildlife, Center for Biological Diversity, Sierra Club, National Parks Conservation
`Association, Oregon Wild, and Humane Society of the United States (collectively “Defenders
`plaintiffs”); in case number 4:21-cv-349-JSW, WildEarth Guardians, Western Watersheds Project,
`Cascadia Wildlands, Environmental Protection Information Center, Kettle Range Conservation
`Group, Klamath Forest Alliance, Klamath-Sisikyou Wildlands Center, The Lands Council, and
`Wildlands Network (collectively “Guardians plaintiffs”); in case number 4:21-cv-561-JSW, the
`National Resources Defense Council (“NRDC”).
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`All citations to the docket are to the docket in case number 4:21-cv-344 unless otherwise
`noted.
`The Court also received and considered three amicus briefs supporting Plaintiffs from, the
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`people of the State of Michigan and the State of Oregon (Dkt. No. 83-2), several federally
`recognized Indian tribes with reservations in Minnesota, Wisconsin, and Michigan (Dkt. No. 87-
`1), and the Sault Ste. Marie Tribe of Chippewa Indians and several animal welfare and
`environmental organizations. (Dkt. No. 116.) The Court also received and considered four
`amicus briefs supporting Defendants from the Oregon Farm Bureau, Oregon Cattleman’s
`Association, and Klamath County (Dkt. No. 113-2), the Gray Wolf Agricultural Coalition (Dkt.
`No. 117), the Sportsmen Conservation Coalition (Dkt. No. 118), and Hunter Nation Inc. (Dkt. No.
`123.)
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`Endangered Species Act of 1973 (“ESA”), 16 U.S.C. section 1531, et seq., and the Administrative
`Procedure Act (“APA”), 5 U.S.C. section 551 et seq.
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`The gray wolf once occupied a large portion of the United States. AR_52. After the
`arrival of Europeans, the range of the gray wolf began shrinking due to deliberate killings of
`wolves by humans and human agricultural and industrial development. Id. As a result, the range
`and population of gray wolves was substantially reduced by the 1970s. Id. Accordingly, regional
`subspecies of the “gray wolf” were declared endangered by the federal government between 1966
`and 1976. Id.
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`In 1978, the Service reclassified the gray wolf throughout the lower 48 United States and
`Mexico. The reclassification subsumed the previous regional listings into a single species listing
`divided into two entities: the gray wolf in Minnesota, which the Service determined was a
`threatened population; and the gray wolf in the remaining lower 48 United States and Mexico,
`which remained endangered. See Reclassification of the Gray Wolf in the United States and
`Mexico, with Determination of Critical Habitat in Michigan and Minnesota, 43 Fed. Reg. 9,607, 9,
`608, 9612 (March 9, 1978). As a result of the ESA’s protections, gray wolf populations began to
`rebound in several parts of their historic range. See AR_48.
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`In 2003, the Service issued a rule that divided the gray wolf listing into three distinct
`population segments (“DPS”): an Eastern segment, a Western segment, and a Southwestern
`segment. Final Rule to Reclassify and Remove the Gray Wolf From the List of Endangered and
`Threatened Wildlife in portions of the Conterminous United States; Establishment of Two Special
`Regulations for Threatened Gray Wolves, 68 Fed. Reg. 15,804, 15,818 (April 1, 2003) (“2003
`Rule”). The 2003 Rule designated wolves in Eastern and Western segments as threatened, rather
`than endangered. Two district courts invalidated the 2003 Rule. A district court in Oregon found
`that the Service effectively ignored the species’ status in its full range by downlisting the species
`based solely on the viability of a small population within that segment. See Defs. of Wildlife v.
`U.S. Dep’t of the Interior, 354 F. Supp. 2d 1156, 1170-72 (D. Or. 2005). A district court in
`Vermont invalidated the Service’s attempt to designate and delist the Eastern segment of gray
`wolves because it impermissibly “lumped” into the Eastern segment any gray wolves in the
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`Northeast region of the United States, without determining whether a gray wolf population existed
`in the Northeast. See Nat’l Fed’n v. Norton, 386 F. Supp. 2d 553, 564-65 (D. Vt. 2006)
`(“Norton”).
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`In 2007, the Service issued a new rule that created a “Western Great lakes gray wolf
`distinct population segment” and simultaneously delisted that segment. See Final Rule
`Designating the Western Great Lakes Populations of Gray Wolves as a Distinct Population
`Segment; Removing the Western Great Lakes Distinct Population Segment of the Gray Wolf
`From the List of Endangered and Threatened Wildlife, 72 Fed. Reg. 6,052 (Feb. 8, 2007) (“2007
`Rule”). A district court invalidated the 2007 Rule for “fail[ing] to acknowledge and address
`crucial statutory ambiguities” concerning the creation of distinct population segments for the
`purpose of delisting. Humane Soc’y of the U.S. v. Kempthorne, 579 F. Supp. 2d 7 (D.D.C. 2008).
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`In 2009, the Service published a new final rule without notice and comment, which added
`a section to the vacated 2007 Rule entitled “Issues on Remand.” Final Rule to Identify the
`Western Great Lakes Populations of Gray Wolves as a Distinct Population Segment and to Revise
`the List of Endangered and Threatened Wildlife, 74 Fed. Reg. 15,070 (Apr. 2, 2009) (“2009
`Rule”). The 2009 Rule was challenged in court on several grounds. Shortly after filing suit, the
`parties entered into a stipulated settlement and the Service conceded that it erred by publishing the
`2009 Rule without providing for notice and comment as required by the APA. Humane Soc’y of
`the U.S. v. Salazar, No. 09-1092 (D.D.C. July 2, 2009), Dkt. No. 27. The 2009 Rule was therefore
`vacated and remanded back to the Service and returned the wolves in the Western Great Lakes
`DPS to the listing status they had prior to the 2009 Rule.
`In 2009, the Service recognized and delisted the Northern Rocky Mountain population of
`gray wolves (“NRM wolves”). Final Rule to Identify the Northern Rocky Mountain Gray Wolf
`DPS and Revise the List of Endangered and Threatened Wildlife, 74 Fed. Reg. 15,123 (Apr. 2,
`2009). Although a district court invalidated the delisting, it was reinstated by Congress. See Defs.
`of Wildlife v. Salazar, 729 F. Supp. 2d 1207, 1228 (D. Mont. Aug. 5, 2010); Section 1713, Pub. L.
`112-10, 125 Stat. 38 (Apr. 15, 2011). The Service’s delisting of wolves in Wyoming was
`challenged but was upheld by the D.C. Circuit Court of Appeals. 77 Fed. Reg. 55,530 (Sept. 10,
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`2012); Defs. of Wildlife v. Zinke, 849 F.3d 1077, 1093 (D.C. Cir. 2017).
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`In 2011, the Service issued another rule seeking to divide and delist gray wolves in the
`broader Western Great Lakes region. Revising the Listing of the Gray Wolf (Canis lupus) in the
`Western Great Lakes, 76 Fed. Reg. 81,666 (Dec. 28, 2011) (“2011 Rule”). The 2011 Rule
`designated the wolves previously listed as “threatened” in Minnesota as part of a new Western
`Great Lakes DPS that included Minnesota, Wisconsin, and Michigan, and portions of North
`Dakota, South Dakota, Iowa, Illinois, Indiana, and Ohio, and it simultaneously delisted that
`segment. The 2011 Rule was vacated by a district court, and the D.C. Circuit Court of Appeals
`affirmed the decision on the basis that the Service failed to adequately analyze and consider the
`impacts of partial delisting and of historical range loss on the already-listed species. Humane
`Soc’y v. Zinke, 865 F.3d 585, 589 (D.C. Cir. 2017).
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`Following these delisting efforts, two gray wolf entities remained protected under the ESA:
`the Minnesota gray wolf entity, listed as threatened; and the gray wolf entity in all or portions of
`44 lower United States and Mexico, which excludes the NRM wolves, listed as endangered.
`In March 2019, the Service proposed eliminating protections for the gray wolf throughout the
`contiguous United States. AR_20097; Endangered and Threatened Wildlife and Plants; Removing
`the Gray Wolf (Canis lupus) from the List of Endangered and Threatened Wildlife, 84 Fed. Reg.
`9648 (Mar. 15, 2019). The Service provided 120 days of public comment on the proposed rule.
`AR_40. On November 3, 2020, the Service issued its final rule, which removed ESA protections
`for the two previously listed entities—the Minnesota entity and 44-state entity. AR_38;
`Endangered and Threatened Wildlife and Plants; Removing the Gray Wolf (Canis lupus) From the
`List of Endangered and Threatened Wildlife, 85 Fed. Reg. 69,778 (Nov. 3, 2020) (“Final Rule”).
`The Final Rule asserts that delisting is appropriate because neither the Minnesota entity nor
`the 44-state entity qualify as a species, subspecies, or DPS under the ESA, and delisting is
`warranted for that reason alone. The Final Rule goes on to evaluate the conservation status of the
`currently listed entities under three different configurations: the two currently listed entities
`separately, the two currently listed entities combined into a single entity, and a single gray wolf
`entity that includes all gray wolves in the lower 48 states and Mexico except for the Mexican wolf.
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`AR_44. The Final Rule concludes that wolves, under any of the three different configurations, no
`longer meet the ESA’s requirements to be protected under the ESA. The Final Rule bases its
`conclusion on the existence and purported recovery of two large metapopulations of gray wolves
`in the Northern Rocky Mountains and Great Lakes. AR_150. The Service concluded that while
`these metapopulations occupy a fraction of their historical range, they are capable of sustaining
`viable wolf populations in the lower 48 states over time. As a result, the Final Rule removes the
`remaining ESA protections for the gray wolf throughout the contiguous United States.
`The Court will address additional facts as necessary in the analysis.
`ANALYSIS
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`A.
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`Standard of Review.
`Review of an agency’s compliance with the ESA is governed by the APA. Greater
`Yellowstone Coalition, Inc. vv. Servheen, 665 F.3d 1015, 1023 (9th Cir. 2017). Under the APA,
`courts are required to hold unlawful and set aside only those agency actions found to be “arbitrary,
`capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. §
`706(2)(A).
`In evaluating agency actions under the “arbitrary and capricious” standard, courts “must
`consider whether the [agency’s] decision was based on a consideration of the relevant factors and
`whether there has been a clear error of judgment.” Marsh v. Ore. Natural Res. Council, 490 U.S.
`360, 378 (1989) (citation and internal quotation marks omitted). The scope of review under this
`standard is “narrow and a court is not to substitute its judgment for that of the agency.” Motor
`Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). An agency’s
`decision can be set aside only if the agency relied on factors Congress did not intend it to consider,
`entirely failed to consider an important aspect of the problem,…offered an explanation that runs
`counter to the evidence before the agency[,] or is so implausible that it could not be ascribed to a
`difference in view or the product of agency expertise.” Earth Island Inst. v. U.S. Forest Serv., 697
`F.3d 1010, 1013 (9th Cir. 2012) (emphasis removed) (citations and internal quotation marks
`omitted).
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`B.
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`Statutory Requirements Under the ESA.
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`The ESA is “the most comprehensive legislation for the preservation of endangered species
`ever enacted by any nation.” Tenn. Valley Auth. v. Hills, 437 U.S. 153, 180 (1978). Under the
`ESA, the Service must “identify and list species that are ‘endangered’ or ‘threatened.’” Center for
`Biological Diversity v. Zinke, 868 F.3d 1054, 1057 (9th Cir. 2017) (quoting 16 U.S.C. § 1533). A
`threatened species “is likely to become an endangered species within the foreseeable future
`throughout all or a significant portion of its range,” 16 U.S.C. § 1532(20), while an endangered
`species is “in danger of extinction throughout all or a significant portion of its range,” id. §
`1532(6).
`The Service must make listing and delisting determinations according to a five-factor
`analysis of potential threats, considering:
`(A) the present or threatened destruction, modification, or curtailment of [a species’]
`habitat or range;
`(B) overutilization for commercial, recreational, scientific, or educational purposes;
`(C) disease or predation;
`(D) the inadequacy of existing regulatory mechanisms; or
`(E) other natural or manmade factors affecting its continued existence.
`16 U.S.C § 1533(a)(1). The agency must make any determination “solely on the basis of the best
`scientific and commercial data available.” Id. § 1533(b)(1)(A). The Secretary of the Interior has
`delegated the authority to determine whether a species is endangered or threated to the Fish and
`Wildlife Service. 50 C.F.R. § 402.01(b).
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`C.
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`The Service Cannot Rely on the Definition of “Species” As an Independent Basis for
`Delisting Gray Wolves.
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`The Service first argues that the Minnesota entity and the 44-state entity do not meet the
`statutory definition of a “species,” which bars their protection as “threatened” or “endangered”
`under the ESA. The Service argues that the Court should uphold the Final Rule on this basis
`alone.
`In 1978, the Service listed the gray wolf as two entities, which it defined geographically.
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`AR_43. These entities were treated as distinct “species” under the statutory definition of the term
`that was in effect at the time. Id. The ESA was later amended to introduce the concept of a DPS.
`Id. Since the concept of a DPS was introduced, the Service has attempted to revise the listed gray
`wolf entities by enacting rules that designated new population segments and simultaneously
`delisted those segments. As discussed above, the Service was successful in designating and
`delisting a DPS of NRM wolves, but its attempts to designate and delist a Western Great Lakes
`DPS have been unsuccessful.
`According to the Service, the currently listed gray wolf entities, which were defined in
`1978 prior to the concept of the DPS, no longer qualify as species under the amended ESA. Under
`the ESA, “[t]he term “species” includes any subspecies of fish or wildlife or plants, and any
`distinct population segment of any species of vertebrate fish or wildlife which interbreeds when
`mature.” 16 U.S.C. § 1532(16). The Service argues that neither the Minnesota entity nor the 44-
`state entity constitutes an entire taxonomic species or subspecies because gray wolves are widely
`distributed across the globe. Moreover, neither entity constitutes a DPS because Minnesota
`wolves are spatially, biologically, and genetically connected to wolves in Wisconsin, Michigan,
`and the surrounding states and are thus not distinct from the 44-state entity. As a result, the
`Service argues that because the ESA precludes the Service from recognizing something other than
`a “species” as threatened and endangered and because neither the Minnesota entity nor the 44-state
`entity meet that statutory requirement, the Court should uphold the delisting decision on this basis
`alone.
`The Court disagrees. As Plaintiffs note, there is nothing in the statute that suggests that
`Congress intended the 1978 amendments to the ESA to remove protections for already-listed
`entities.4 Moreover, upholding the Final Rule solely on this basis would amount to an
`impermissible “backdoor route to the de facto delisting of already-listed species.” Humane Soc’y,
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`4 If the 1978 statutory change rendered the gray wolf entities incompatible with the ESA’s
`amended definition of species, it is not clear why the Service has not attempted to pursue delisting
`based solely on this reason in the intervening four decades. Although the removal of the NRM
`wolves and Mexican subspecies have altered the originally listed 48-state entity, the Minnesota
`entity has remained consistently defined since its 1978 listing. However, the Service has not
`attempted to delist the Minnesota entity based solely on this theory until now.
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`865 F.3d at 602. In Humane Society, the Service proposed a rule that created a Western Great
`Lakes DPS. After carving out the DPS, the Service concluded that the remaining wolf population
`was no longer a protectable “species” and sought to delist the remnant for that reason alone. 5 Id.
`at 602. The D.C. Circuit criticized the Service’s approach proposal finding that:
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`“The Service’s power is to designate genuinely discrete population
`segments; it is not to delist an already-protected species by
`balkanization. The Service cannot circumvent the Endangered
`Species Act’s explicit delisting standards by riving an existing listing
`into a recovered sub-group and a leftover group that becomes an
`orphan to law.”
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`Id. at 603.
`The Service argues that here, unlike in Humane Society, it has not impermissibly created a
`remnant entity that is no longer protectable; instead, it seeks to delist already existing entities that
`no longer qualify for listing because of intervening statutory and regulatory changes. The Court
`finds the Service’s efforts to distinguish Humane Society unpersuasive. As the Ninth Circuit
`explained in Crow Indian Tribe v. United States, the overarching concern in Humane Society was
`the “practical outcome” of the rule, which “result[ed] in a ‘backdoor route to the de facto
`delisting’ of the entirety of the species.” 965 F.3d 662, 677 (9th Cir. 2020) (quoting Humane
`Soc’y, 865. F.3d at 601-02). The practical outcome of the Service’s attempt to delist the gray wolf
`based solely on the statutory definition of “species” is the same: the Service would effectively
`remove federal protections for the listed gray wolf entities without addressing the ESA’s
`requirements for making such a determination. This is the type of “statutory dodge” that
`concerned the D.C. Circuit in Humane Society. 965 F.3d at 603.
`Furthermore, the Final Rule itself contradicts the Service’s position that the Court should
`uphold the Final Rule on this basis alone. Although the Service states that it believes it can delist
`gray wolves based solely on the statutory definition of “species,” it chose not to do so in the Final
`Rule. Instead, the Service went on to consider the status of the gray wolf in several configurations
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`5 The central dispute in Humane Society was whether the ESA permits the Service to carve out of
`an already-listed species a “distinct population segment” for the purpose of delisting that segment
`and withdrawing it from the ESA’s protection. 865 F.3d at 595. The Court concluded that the
`ESA permits such a designation but only when the Service makes proper findings.
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`and apply the ESA’s five factor analysis to those configurations. AR_44. But the Service’s
`argument asks the Court to disregard this analysis as unnecessary to its determination. The Court
`rejects this argument and declines to uphold the Final Rule on this basis.
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`D.
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`The Service Failed to Evaluate the Full-Listed Gray Wolf Species.
`The Final Rule purports to evaluate three different configurations of gray wolves: (1) the
`Minnesota entity and the 44-state entity separately; (2) the Minnesota entity and the 44-state entity
`combined; and (3) a “lower 48 United States entity” that combines the combined listed entity with
`the delisted NRM wolf population. AR_44-45. Plaintiffs challenge the Service’s analysis of these
`configurations. According to Plaintiffs, the Service failed to analyze gray wolves across the entire
`lower 48 states and based its delisting decision on the purported recovery of wolves in the Great
`Lakes and Northern Rocky Mountains.
`Plaintiffs contend that the Service’s action here is no different than past attempts to delist
`the gray wolf, which courts deemed unlawful. In Humane Society, the D.C. Circuit rejected the
`Service’s attempt to designate and delist a Western Great Lakes DPS which left a remnant portion
`of the species unprotected. 865 F.3d at 602 (rejecting attempt to “delist an already-protected
`species by balkanization.”). Similarly, two district courts separately rejected the 2003 Rule, which
`created three DPSs and downlisted the gray wolf from “endangered” to “threatened” in two of
`those DPSs. The Service relied on the recovery of wolves in two core areas—the Western Great
`Lakes and Northern Rocky Mountains—to downlist wolves throughout the newly-created DPSs.
`The courts rejected this approach because it failed to consider the threats to wolves outside of the
`core areas. See Defs. of Wildlife, 354 F. Supp. 2d at 1171-73 (finding approach unlawful because
`it ignored that “the conservation status of populations within each DPS varie[d] dramatically,
`ranging from recovered populations in parts of Montana, to precarious populations in Washington,
`to extirpated populations in Nevada.”); Norton, 386 F. Supp. 2d at 565 (rejecting attempt to “delist
`an area that it previously determined warrants an endangered listing because it ‘lumps together’ a
`core population with a low to non-existent population outside of the core area.”).
`Here, the Final Rule relies on the recovery of core metapopulations of wolves in the Great
`Lakes and Northern Rocky Mountains to conclude that wolves across the entire lower 48 states no
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`longer qualify for federal protection. However, similar to its previous rulemaking, the Service did
`not adequately consider threats to wolves outside of these core populations.6 Instead, the Service
`avoids analyzing these wolves by concluding, with little explanation or analysis, that wolves
`outside of the core populations are not necessary to the recovery of the species. See, e.g., AR_143
`(concluding that “the relatively few wolves that occur within the 44-state entity outside of
`Wisconsin and Michigan, including those in the West Coast States and central Rocky Mountains,
`as well as lone dispersers in other States, are not necessary for the recovered status of the 44-state
`entity.”).
`In so concluding, the Service avoided assessing the impact of delisting on these wolves.
`But in Humane Society, the D.C. Circuit was clear that the Service must consider “the impact that
`extraction of the segment would have on the legal status of the remaining wolves in the already-
`listed species.” Humane Soc’y, 865 F.3d at 600. Although Humane Society dealt with the effect
`that delisting a DPS had on the remaining wolf population, the Court finds its reasoning applies
`here. In this case, the Service attempts to avoid the issue of the remnant wolf population by
`including, with little analysis or explanation, remnant wolves as part of the existing core
`populations, or by dismissing, in cursory manner, remnant wolves outside of core populations as
`lone dispersers that are not necessary to the viability of the species. See, e.g., AR_49 (assuming
`that groups of wolves in Colorado are related to NRM wolves). The Service has changed its tactic
`since Humane Society, but the flaw is the same as—the failure to address the status of wolves
`outside core populations under statutory listing criteria.
`For these reasons, the Court concludes the Service failed to adequately consider the threats
`to wolves outside of the core populations in the Great Lakes and Northern Rocky Mountains in
`delisting the entire species and GRANTS Plaintiffs’ motion on this basis.
`
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`6 In addition to groups of wolves in the West Coast states and central Rocky Mountains, the
`Service acknowledges that “wolves have been detected in all States within historical gray range
`west of the Mississippi River except Oklahoma and Texas” and that “confirmed records of
`individual gray wolves have been reported from Vermont, Massachusetts, New York, Indiana,
`Illinois, Iowa, Missouri, North Dakota, South Dakota, Nebraska, Kansas, Colorado, Utah,
`Arizona, and Nevada.” AR_49. The Service characterizes these wolves as “lone dispersers” and
`did not include these areas in the definition of current range because they do not “substantively
`contribute to the wolf’s viability.” AR_46.
`
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`Northern District of California
`United States District Court
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`

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`Case 4:21-cv-00561-JSW Document 118 Filed 02/10/22 Page 12 of 26
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`E.
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`The Service Failed to Consider the Status of West Coast Wolves.
`
`Plaintiffs also argue that the Final Rule violates the ESA because it arbitrarily and
`capriciously lumped wolves in western sections of Washington, Oregon, and California together
`with the already delisted NRM wolves for purposes of its analysis.7 Prior to the Final Rule, West
`Coast wolves were protected as endangered. In the Final Rule, however, the Service determined
`that West Coast wolves were not discrete from the NRM wolves. AR_145, 149. As a result of
`this determination, Plaintiffs argue that the Service did not analyze whether threats to the West
`Coast wolves warranted their continued listing under the ESA. Plaintiffs contend that the
`Service’s decision to treat the West Coast wolves as part of the NRM is arbitrary and capricious
`because it contradicts an earlier agency finding without a reasoned explanation and ignores the
`best available science.
`When changing a policy position, an agency must provide a reasoned explanation for
`disregarding the facts and circumstances that underlay the prior policy. Organized Vill. of Kake v.
`U.S. Dep’t of Agric., 795 F.3d 956, 966 (9th Cir. 2016). In its rule designating and delisting the
`NRM DPS, the Service concluded that NRM wolves were physically discrete from West Coast
`wolves. See 73 Fed. Reg. 10, 514, 10,518-19 (Feb. 27, 2008); 74 Fed. Reg. 15, 123, 15-128-29
`(Apr. 2, 2009). The Final Rule, however, takes the position that West Coast wolves “represent the
`expanding edge of a recovered and stable source population (the NRM DPS)” and thus, are “not
`an independent population within the 44-State entity” and “are an extension of a large population
`of wolves in the NRM.” AR_145.
`The Service does not dispute that the Final Rule’s characterization of West Coast wolves
`departs from its prior policy. However, the Service argues that it changed its position based on the
`development of new facts regarding the physical discreteness of West Coast wolves, specifically
`that the NRM wolf population expanded outward causing the distance between the NRM wolves
`and West Coast wolves to shrink. Although the Final Rule does not detail the reasons for the
`
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`7 Because the Final Rule refers to Washington, Oregon, and California as “West Coast States,” the
`Court will use the term “West Coast wolves” to refer to wolves in those states. Plaintiffs refer to
`these same wolves as “Pacific Coast” wolves.
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`Northern District of California
`United States District Court
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`Case 4:21-cv-00561-JSW Document 118 Filed 02/10/22 Page 13 of 26
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`change in position, the Service contends that it fully explained the underlying factual
`developments that led to its change in position in a 2013 status review. See 78 Fed. Reg. 35, 664
`(June 13, 2013). The Court agrees that the 2013 status review provides sufficient explanation for
`the Service’s change in position regarding the physical discreteness of West Coast wolves. See
`Ctr. for Biological Diversity v. Haaland, 998 F.3d 1061, 1068 (9th Cir. 2021) (“[I]f a published
`decision incorporates by reference a separate, fully reasoned document explaining why the agency
`changed positions, that may suffice.”).)
`Plaintiffs also argue that the Service failed to consider the best available science with
`regard to the genetic relationships between NRM w