Endangered Species Law & Policy

The United States District Court for the District of Arizona entered summary judgment (pdf) for the United States Forest Service in a case filed by Defenders of Wildlife and other plaintiffs alleging the Forest Service failed to fulfill its duty to conserve under section 7(a)(1) of the Endangered Species Act (ESA).  The case focused on efforts to conserve the Mexican gray wolf (Canis lupus baileyi) by reintroducing an experimental population of the species into the Blue Range Wolf Recovery Area, which includes portions of east-central Arizona and west-central New Mexico.  Plaintiffs complained that too often wolves reintroduced into the Recovery Area were removed by the Forest Service for preying on livestock, arguing that the Forest Service's livestock permitting program is interfering with Mexican wolf recovery efforts.

Plaintiffs pursued two specific claims against the Forest Service under section 7(a)(1).  First, they argued that the Forest Service violated section 7(a)(1) by failing to develop and implement its own Mexican wolf conservation program.  In response, the Forest Service argued that it fulfilled its obligation under section 7(a)(1) by carrying out a conservation program, namely the Mexican wolf recovery plan (pdf), developed by the Fish and Wildlife Service.  The court interpreted section 7(a)(1) to impose a requirement on the Forest Service to "carry out a substantive conservation program for the Mexican gray wolf."  But the court went on to hold that Plaintiffs' position that the Forest Service must develop its own program and may not implement a program developed by the Fish and Wildlife Service "puts form over substance" and is not supported by the statute or relevant caselaw.

Second, Plaintiffs argued that the Forest Service has not contributed to the conservation of the Mexican wolf and, instead, demonstrated a preference for wolf removal to protect domestic livestock.  The court opined that, to the extent that the Forest Service took no action to conserve the species, such inaction would plainly violate the section 7(a)(1) duty to conserve.  But, in this case, the court held that the record demonstrates affirmative action to carry out the Fish and Wildlife Service wolf conservation program.

The court's holdings are consistent with the balance of the jurisprudence interpreting section 7(a)(1) of the ESA, which support the proposition that federal agencies "have substantial discretion in determining how best to fulfill their section 7(a)(1) obligations."  As a result, the decision reiterates the difficulty would-be plaintiffs will face if they pursue a claim under section 7(a)(1) of the ESA.