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holding that the Service is not required to include any particular suggestion that one might deem necessary for conservation of a species
Summary of this case from Ctr. for Biological Diversity v. HaalandOpinion
No. CV-18-00047-TUC-JGZ
2019-03-30
CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs, v. Ryan ZINKE, et al., Defendants.
Edward B. Zukoski, Earthjustice, Denver, CO, Elizabeth B. Forsyth, Earthjustice, Los Angeles, CA, Timothy J. Preso, Earthjustice, Bozeman, MT, John R. Mellgren, Western Environmental Law Center, Eugene, OR, Matthew K. Bishop, Western Environmental Law Center, Helena, MT, for Plaintiffs. Sarah Jane Sheffield, U.S. Department of Justice, Washington, DC, for Defendants.
Edward B. Zukoski, Earthjustice, Denver, CO, Elizabeth B. Forsyth, Earthjustice, Los Angeles, CA, Timothy J. Preso, Earthjustice, Bozeman, MT, John R. Mellgren, Western Environmental Law Center, Eugene, OR, Matthew K. Bishop, Western Environmental Law Center, Helena, MT, for Plaintiffs.
Sarah Jane Sheffield, U.S. Department of Justice, Washington, DC, for Defendants.
ORDER
Honorable Jennifer G. Zipps, United States District Judge
Plaintiffs challenge the adequacy of a recovery plan for the Mexican grey wolf issued by the Fish and Wildlife Service ("FWS") in 2017, pursuant to Section 4(f) of the Endangered Species Act ("ESA"), 16 U.S.C § 1533(f). Specifically, Plaintiffs allege that the recovery plan fails to satisfy the ESA's requirements because the plan is not based on the best available science, fails to include objective, measurable criteria that if followed would result in the delisting of the Mexican grey wolf as endangered, and fails to include site-specific management actions necessary for the conservation of the species. (Complaint, ¶¶ 67-76.) In the alternative, Plaintiffs argue that defendants violated the Administrative Procedure Act (APA), 5 U.S.C. § 706(2) by drafting a plan not rationally based on facts. (Id. at ¶¶ 77-79)
The Fish and Wildlife Service, on behalf of all defendants, brings a motion to dismiss Plaintiffs' complaint for lack of subject matter jurisdiction. (Doc. 24.) FWS asserts that Plaintiffs lack jurisdiction under either the APA or the citizen suit provision of the ESA. 16 U.S.C. § 1540(g)(1)(C). For the reasons stated herein, the 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, 98 S.Ct. 2279, 57 L.Ed.2d 117 (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, 98 S.Ct. 2279. "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." 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 and Mexico. (Complaint ¶ 31.) Although the Mexican wolf population once hovered in the thousands, by the 1970s, the wolves were believed to be extinct in the wild. (Complaint ¶¶ 31-32.) In 1976, the Mexican grey wolf was listed as an endangered species under the ESA, and in 1982, the FWS released what was titled a "Recovery Plan." (Complaint ¶¶ 49, 50.) Since 1982, the FWS has convened various recovery teams to develop an updated recovery plan. (Complaint ¶ 51.) The latest of these teams, the Science and Planning Subgroup, met in 2010 and after a few years drafted a "2013 Proposed Recovery Criteria" for the Mexican Wolf. (Complaint ¶¶ 54, 55.) This proposed plan was never finalized under Section 4(f). (Complaint ¶ 56.)
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 ¶ 56.) 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 the 2017 recovery plan "arbitrarily and unlawfully sets population and management targets that are inadequate to ensure the wolf's conservation and survival." (Complaint ¶ 4.) Although the plan recognizes the primary threats to the wolves' recovery, Plaintiffs state that the plan fails to adequately address those threats through objective, measurable criteria or site-specific management as called for under Section 4(f), and that the plan is not based on the best available science. (Complaint ¶¶ 4, 74.)
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. 2003). "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
Defendants argue that the court lacks jurisdiction to hear Plaintiffs' claims under either of Plaintiffs' asserted bases: the citizen suit provision of the ESA, and the APA. Plaintiffs respond that Defendants are barred from making this argument by the doctrine of collateral estoppel, and that, in any event, this Court does have jurisdiction to review the 2017 recovery plan under either statute.
A. Collateral Estoppel
Defendants' motion to dismiss is not barred by collateral estoppel. The collateral estoppel doctrine, or issue preclusion, is appropriate if (1) the parties had a full and fair opportunity to litigate the identical issue in a prior action, (2) the issue was actually litigated in the prior action, (3) the issue was decided by a final judgment, and (4) the party against whom issue preclusion is asserted was a party to that action. E.g. , Shaffer v. R.J. Reynolds Tobacco Co. , 860 F. Supp. 2d 991, 995 (D. Ariz. 2012). Collateral estoppel operates to bar "successive litigation of an issue of fact or law ... whether or not the issue arises on the same or a different claim." New Hampshire v. Maine , 532 U.S. 742, 748-49, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001). The party seeking to apply collateral estoppel bears the burden of proving all necessary elements. Taylor v. Sturgell , 553 U.S. 880, 907, 128 S.Ct. 2161, 171 L.Ed.2d 155 (2008).
Plaintiffs argue that this Court already decided the jurisdictional issues presented here in Defs. of Wildlife v. Jewell , No. CV-14-02472, 2015 WL 11182029 (D. Ariz. Sept. 30, 2015). In that case, Plaintiffs sought to compel the FWS to issue a new recovery plan compliant with 1988 amendments to the ESA. In response to Plaintiffs' complaint, Defendants argued, as they do now, that the Court did not have jurisdiction under either the APA or citizen suit provision of the ESA to review the claims asserted. Specifically, Defendants characterized the complaint as a challenge to the sufficiency of the content of the 1982 recovery plan, and argued that the substance of a recovery plan was within the agency's discretion, and was therefore unreviewable. The Court dismissed this characterization, stating, "[t]he Court rejects the argument that Plaintiffs' claims are actually a challenge to the sufficiency of an existing recovery plan, rather than a claim for failure to act." Id. at *6. The Court further concluded that, given the 1988 amended requirements for recovery plans, and the FWS's own admission that the 1982 recovery plan was only intended to ensure the survival of, rather than conservation of, the Mexican grey wolf, Plaintiffs could proceed with their claim that the agency had failed to act in accordance with its statutory mandate to enact a recovery plan. Id. at *8.
Because the Court previously found that the substance of the recovery plan was not at issue, and thus did not decide that issue in a final judgment, Defendants are not collaterally estopped from arguing that the citizen suit provision of the ESA and the APA do not provide subject matter jurisdiction for the claims asserted here. Pike v. Hester , 891 F.3d 1131, 1139 (9th Cir. 2018) ("If the deciding court could have reached its conclusion without resolving the disputed issue, the issue was not necessary to the judgment.").
B. Jurisdiction Under the ESA's Citizen Suit Provision
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, 117 S.Ct. 1154, 137 L.Ed.2d 281 (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, 117 S.Ct. 1154. 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, 117 S.Ct. 1154.
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 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. Two factors inform this Court's review of § 1533(f) —the nature of recovery plans, and the language of the statute.
The court in Friends of the Wild Swan, Inc. v. Thorson , 260 F. Supp. 3d 1338, 1343 n.5 (D. Or. 2017) recognized the "confusing interplay ... between lack of subject matter jurisdiction and failure to state a claim," before concluding that "when addressing this ‘hybrid’ area of Rule 12(b), the standard procedure is to determine whether a plaintiff has properly stated a claim in order to determine whether the district court has subject-matter jurisdiction."
To begin, many cases in this jurisdiction and elsewhere have emphasized the non-binding 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 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."). 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 long-term 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.
Fund for Animals v. Babbitt , 903 F. Supp. 96, 107-08 (D.D.C. 1995) acknowledged the logic driving some of these cases when it recognized that the FWS was entitled to "some flexibility as it implements [a] recovery plan," in large part because "[b]y the time an exhaustively detailed recovery plan is completed and ready for publication, science or circumstances could have changed and the plan might no longer be suitable."
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 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 (D.Ariz. Jan. 18, 2006) ("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 degree of consideration. See Bennett v. Spear , 520 U.S. at 172, 117 S.Ct. 1154 ("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. , ––– U.S. ––––, 139 S.Ct. 361, 371, 202 L.Ed.2d 269 (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. 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 allegations in Plaintiffs' Complaint largely dispute the substance of the recovery plan by disagreeing with the FWS's conclusions and scientific underpinnings. In their first count, Plaintiffs allege that the recovery plan fails to meet the ESA's requirements because the plan fails to provide for the conservation and survival of the Mexican gray wolf in two primary respects: by "(1) failing to base its population and genetic goals on the best available science, and setting population and genetic goals that are unlikely to provide for species' conservation and survival," and by "(2) disregarding the best available science identifying suitable Mexican wolf recovery habitat in the United States, and unreasonably relying on recovery efforts in Mexico, despite the evidence that Mexico lacks suitable habitat and management to ensure a self-sustaining population." (Complaint, ¶ 74.) Plaintiffs similarly allege that the plan violates the ESA's requirements "because the Plan's criterion to address genetic diversity arbitrarily and capriciously allows for continued decline in genetic diversity." (Complaint, ¶ 76.) 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 also allege, however, that the agency's recovery plan "identifies illegal killing as a primary threat affecting recovery," but that the plan nonetheless "fails to identify objective measurable criteria or include site-specific management actions to address illegal killings." (Complaint, ¶ 75.) This claim is different in that the Plaintiffs do not merely disagree with a conclusion drawn by the agency, but argue that the agency failed to address a problem that the agency itself identified, without offering an explanation as to why it was not practicable for the agency to do so. See Fund for Animals v. Babbitt , 903 F. Supp. at 108 ("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."); 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 alleged failure to include this item.
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, 117 S.Ct. 1154, 137 L.Ed.2d 281 (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, 117 S.Ct. 1154.
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, 721 (9th Cir. 2018). Although this Court recognizes that the analysis in that decision reached the same conclusion, this Court is unable to rely on this unpublished authority. 9th Cir. R. 36-3.
Conclusion
For the foregoing reasons, Defendants' motion to dismiss (Doc. 24) is GRANTED in part and DENIED in part.