Wolf Brief

Case: 22-15532, 09/13/2024, ID: 12906866, DktEntry: 31, Page 1 of 87
Nos. 22-15529, 22-15532, 22-15534, 22-15535, 22-15536,

22-15537, 22-15626, 22-15627, 22-15628
UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
DEFENDERS OF WILDLIFE, et al.,

Plaintiffs/Appellees,
v.
UNITED STATES FISH AND WILDLIFE SERVICE, et al.,

Defendants/Appellants
and
STATE OF UTAH, et al.,
Intervenor Defendants/Appellants.
Appeal from the United States District Court for the Northern District of California
Nos. 4:21-cv-344, 4:21-cv-349, and 4:21-cv-561 (Hon. Jeffrey S. White)
FEDERAL APPELLANTS’ OPENING BRIEF
TODD KIM
Assistant Attorney General
JOAN M. PEPIN
MICHAEL R. EITEL
ASTRID CEVALLOS
Of Counsel: AMELIA G. YOWELL
Attorneys
KRISTEN BYRNES FLOOM Environment and Natural Resources Division
Attorney U.S. Department of Justice
U.S. Department of the Interior Post Office Box 7415
Office of the Solicitor Washington, D.C. 20044
(202) 514-5580
[email protected]
TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................................................................... iii
GLOSSARY..............................................................................................................ix
INTRODUCTION ..................................................................................................... 1
STATEMENT OF JURISDICTION.......................................................................... 4
STATEMENT OF THE ISSUES............................................................................... 4
PERTINENT STATUTES AND REGULATIONS .................................................. 5
STATEMENT OF THE CASE .................................................................................. 5
A. The Endangered Species Act................................................................. 5
1. The definition of species ............................................................. 6
2. The five factors for determining a species’ status ...................... 6
B. The Recovery and Delisting of the Gray Wolves ................................. 8
1. Gray wolf biology ....................................................................... 8
2. The listing and recovery of gray wolves ..................................... 9
3. The Service’s previous regulatory efforts and

related litigation ........................................................................ 14
4. The 2020 delisting rule ............................................................. 17
C. Proceedings below............................................................................... 19
SUMMARY OF ARGUMENT ............................................................................... 21
STANDARD OF REVIEW ..................................................................................... 24
i
ARGUMENT ........................................................................................................... 25
I. The district court’s decision rests on the incorrect assumption

that the ESA requires restoration of a species throughout its
historical range............................................................................................... 25
A. The Service carefully analyzed all listed wolves, not just

segments of the entities. ...................................................................... 28
1. The Service’s biological decision to focus on core

metapopulations does not mean it overlooked other
gray wolves. .............................................................................. 30
2. The Service’s approach is consistent with Humane

Society. ...................................................................................... 32
B. The Service appropriately considered lost historical

range. ................................................................................................... 34
II. The district court erred in rejecting the Rule’s evaluation of

“significant portion of its range.” .................................................................. 40
A. The ESA delegates to the Service the task of judging

“significant” on a species-by-species basis. ........................................ 41
B. The Service’s application of “significant” was not

arbitrary or capricious. ........................................................................ 45
III. The district court improperly substituted its understanding of

the genetics of Western wolves for that of the Service. ................................ 52
IV. The Service rationally concluded that regulatory mechanisms

were adequate. ............................................................................................... 57
CONCLUSION ........................................................................................................ 61
CERTIFICATE OF COMPLIANCE
ADDENDUM
ii
TABLE OF AUTHORITIES
Cases
Alaska Dep’t of Env’t Conservation v. Env’t Prot. Agency,

540 U.S. 461 (2004)....................................................................................... 48
Am. Elec. Power Co. v. Connecticut,

564 U.S. 410 (2011)....................................................................................... 44
Bonnichsen v. United States,

367 F.3d 864 (9th Cir. 2004) ......................................................................... 35
Bostock v. Clayton Cnty.,

590 U.S. 644 (2020)....................................................................................... 43
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,

467 U.S. 837 (1984).................................................................................36, 41
City of Arlington v. Fed. Commc’ns Comm’n,

569 U.S. 290 (2013)....................................................................................... 47
Crow Indian Tribe v. United States,

965 F.3d 662 (9th Cir. 2020) .................................................16, 29, 32, 33, 34
Ctr. for Biological Diversity v. Jewell,

248 F. Supp. 3d 946 (D. Ariz. 2017) ............................................................. 40
Ctr. for Biological Diversity v. Zinke,

900 F.3d 1053 (9th Cir. 2018) ...........................................................35, 36, 56
Defs. of Wildlife v. Norton,

258 F.3d 1136 (9th Cir. 2001) .....................................................25, 26, 43, 48
Defs. of Wildlife v. Zinke,

849 F.3d 1077 (D.C. Cir. 2017)...............................................................15, 49
Desert Survivors v. U.S. Dep’t of Interior,

321 F. Supp. 3d 1011 (N.D. Cal. 2018) ......................................................... 40
iii
Forest Guardians v. U.S. Forest Serv.,

329 F.3d 1089 (9th Cir. 2003) ....................................................................... 25
Friends of Blackwater v. Salazar,

691 F.3d 428 (D.C. Cir. 2012) .................................................................58, 59
Halliburton Co. v. Erica P. John Fund, Inc.,

573 U.S. 258 (2014)....................................................................................... 36
Humane Soc’y of the U.S. v. Pritzker,

548 F. App’x 355 (9th Cir. 2013) .................................................................. 48
Humane Soc'y of the U.S. v. Zinke,

865 F.3d 585 (D.C. Cir. 2017) .................................. 16, 29, 32, 33, 34, 35, 36
Kisor v. Wilkie,
588 U.S. 558 (2019)....................................................................................... 43
Loper Bright Enters. v. Raimondo,

144 S. Ct. 2244 (2024).................................................... 36, 41, 42, 43, 44, 45
Lotus Vaping Techs., LLC v. U.S. Food & Drug Admin.,

73 F.4th 657 (9th Cir. 2023) ..............................................................45, 47, 49
Marsh v. Or. Nat. Res. Council,

490 U.S. 360 (1989).................................................................................44, 56
Motor Vehicle Mfs. Ass’n v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29 (1983)......................................................................................... 24
Native Ecosystems Council v. Weldon,

697 F.3d 1043 (9th Cir. 2012) ....................................................................... 24
Nw. Ecosystem All. v. U.S. Fish & Wildlife Serv.,

475 F.3d 1136 (9th Cir. 2007) ...........................................................31, 53, 57
Pac. Gas & Elec. Co. v. Fed. Energy Regul. Comm’n,

---- F.4th ----, 2024 WL 3908398
(D.C. Cir. Aug. 23, 2024) .............................................................................. 41
iv
Protect Our Cmtys. Found. v. Jewell,

825 F.3d 571 (9th Cir. 2016) ......................................................................... 52
Ranchers Cattlemen Action Legal Fund

United Stockgrowers of Am. v. U.S. Dep’t of Agric.,
415 F.3d 1078 (9th Cir. 2005) ....................................................................... 48
River Runners for Wilderness v. Martin,

593 F.3d 1064 (9th Cir. 2010) ....................................................................... 44
San Luis & Delta-Mendota Water Auth. v. Jewell,

747 F.3d 581 (9th Cir. 2014) ......................................................................... 52
San Luis & Delta-Mendota Water Auth. v. Locke,

776 F.3d 971 (9th Cir. 2014) ......................................................................... 24
The Lands Council v. McNair,

537 F.3d 981 (9th Cir. 2008) ......................................................................... 49
Tenn. Valley Auth. v. Hill,

437 U.S. 153 (1978)....................................................................................... 25
Trout Unlimited v. Lohn,

559 F.3d 946 (9th Cir. 2009) ................................................................... 52, 56
Trump v. Hawaii,
585 U.S. 667 (2018)....................................................................................... 47
W. Watersheds Project v. Ashe,

948 F. Supp. 2d 1166 (D. Idaho 2013) .......................................................... 49
Statutes and Court Rules
Administrative Procedure Act
5 U.S.C. § 706(2) ............................................................................................. 4
5 U.S.C. § 706(2)(A) ...............................................................................24, 44
v
Marine Mammal Protection Act
16 U.S.C. § 1389(b)(1) .................................................................................. 48
Endangered Species Act
16 U.S.C. § 1531(b) ...................................................................................5, 25
16 U.S.C. § 1532(3) ...................................................................................5, 25
16 U.S.C. § 1532(6) .................................................................5, 25, 34, 40, 42
16 U.S.C. § 1532(15) ....................................................................................... 5
16 U.S.C. § 1532(16) .................................................................................6, 11
16 U.S.C. § 1532(20) .....................................................................5, 25, 34, 40
16 U.S.C. § 1533(a)(1) ........................................... 5, 7, 19, 27, 32, 34, 42, 57
16 U.S.C. § 1533(a)(1)(D) .......................................................................57, 58
16 U.S.C. § 1533(a)(2) .................................................................................... 5
16 U.S.C. § 1533(b)(1)(A)............................................................................... 7
16 U.S.C. § 1533(b)(3) .................................................................................... 7
16 U.S.C. § 1533(c) .............................................................................7, 14, 32
16 U.S.C. § 1533(c)(1) .................................................................................... 5
16 U.S.C. § 1533(g) ......................................................................................... 7
16 U.S.C. § 1533(g)(2) .................................................................................... 8
16 U.S.C. § 1540(g) ......................................................................................... 4
28 U.S.C. § 1291 ........................................................................................................ 4
28 U.S.C. § 1331 ........................................................................................................ 4
vi
Pub. L. No. 93-205, 87 Stat. 884 .........................................................................6, 11
Pub. L. No. 112-10, 125 Stat. 38 ............................................................................. 15
Fed. R. App. P. 4(a)(3) ............................................................................................... 4
Regulations
50 C.F.R. § 402.01(b) (2019) ..................................................................................... 5
50 C.F.R. § 402.02 (2019) ......................................................................................... 7
50 C.F.R. § 424.11(e)(2) (2019) ..........................................................................7, 25
32 Fed. Reg. 4001 (Mar. 11, 1967) .......................................................................... 10
38 Fed. Reg. 14678 (June 4, 1973) .......................................................................... 10
39 Fed. Reg. 1171 (Jan. 4, 1974) ............................................................................. 10
43 Fed. Reg. 9607 (Mar. 9, 1978) ................................................................10, 11, 12
74 Fed. Reg. 15123 (Apr. 2, 2009) .......................................................................... 15
76 Fed. Reg. 25590 (May 5, 2011) .......................................................................... 15
76 Fed. Reg. 81666 (Dec. 28, 2011) ........................................................................ 16
77 Fed. Reg. 55530 (Sept. 10, 2012) ....................................................................... 15
79 Fed. Reg. 37578 (July 1, 2014) .........................................................35, 36, 37, 40
80 Fed. Reg. 2488 (Jan. 16, 2015) ........................................................................... 12
82 Fed. Reg. 20284 (May 1, 2017) .......................................................................... 15
85 Fed. Reg. 69778 (Nov. 3, 2020)............................................................................ 2
87 Fed. Reg. 76882 (Dec. 15, 2022) ........................................................................ 26
88 Fed. Reg. 11600 (Feb. 23, 2023) ........................................................................ 26
vii
89 Fed. Reg. 8391 (Feb. 7, 2024) ............................................................................ 19
Other Authorities
Oxford English Dictionary (1978) ........................................................................... 43
Webster’s Third New International Dictionary (1976) ........................................... 43
Brian K. Scheick & Walter McCown,

Geographic Distribution of American
Black Bears in North America, 25 Ursus, no. 2, 2014 .................................. 26
viii
GLOSSARY
APA Administrative Procedure Act
DPS Distinct Population Segment
ESA Endangered Species Act
SPR Significant Portion of its Range
ix
INTRODUCTION
In 1978, gray wolves largely existed in the lower United States in one small,
but tenacious population in Minnesota. Government-sponsored eradication
programs and western settlers had nearly eliminated wolves everywhere else. The
U.S. Fish and Wildlife Service (the Service) thus listed gray wolves under the
Endangered Species Act (ESA) as threatened in Minnesota and endangered in the
lower 48 states and Mexico.
In the many decades since then, the Service has focused on recovering gray
wolves in three geographic regions: the Northern Rocky Mountains, the Eastern
United States including the Great Lakes region, and the Southwest subspecies of
Mexican wolves (which are not at issue here). Thanks to the conservation and
management efforts of the Service, other federal agencies, states, Tribes, and private
conservation partners, gray wolves now exist in the lower United States in two large,
thriving metapopulations in the Northern Rocky Mountains and the Great Lakes.
Both metapopulations are also connected to large networks of wolves in Canada,
boosting their long-term security.
Despite this achievement, the Service’s efforts to recognize the recovery of
gray wolves have been controversial. After several attempted rulemakings and years
of litigation, the Service successfully delisted the Northern Rocky Mountain wolves
1
in 2011. That left the gray wolf listed as threatened in Minnesota and endangered in
44 states and Mexico (the 44-state entity).
In 2020, the Service found that the best available science continued to show
that the listed gray wolf entities were no longer threatened or endangered under the
ESA. It thus embarked on a rulemaking that dealt with the unique listing history and
navigated the complicated regulatory and judicial background. The Service
ultimately published a 117-page Rule delisting the 44-state entity and the Minnesota
entity. 85 Fed. Reg. 69778 (Nov. 3, 2020) (3-ER-304–421). This appeal is about
the validity of that Rule based on its administrative record.
Heeding its obligations under the ESA and intervening judicial precedent, the
Service carefully evaluated the listed entities and other gray wolf configurations to
ensure that it did not remove protections for any wolves that might qualify as an
endangered or threatened species. To do so, the Service analyzed the ESA’s five
factors and applied them to three configurations of wolves: each listed entity
separately, the listed entities together, and all wolves in the lower 48 states, including
the listed entities and the previously delisted Northern Rocky Mountain wolves.
After that thorough analysis, the Service concluded that no configuration of gray
wolves was threatened or endangered in all or a significant portion of its range. That
analysis was well-reasoned and well-supported by the administrative record. Of
course, if the Court disagrees, it can remand to the Service. But the Court should
2
correct the district court’s misunderstanding of both the ESA and the role of a
reviewing court under the Administrative Procedure Act (APA).
At its core, this appeal is about whether the purpose of the ESA is to recover
endangered and threatened species to the point where they are no longer in danger
of extinction, or whether it goes beyond that objective to require that a species be
restored to its historical range before delisting. The ESA is clear: its goal is to
prevent extinction, not to restore species to their pre-western settlement numbers and
range. Only species that are in danger of extinction or likely to become endangered
in the foreseeable future may be listed and protected under the ESA. Species that
have recovered are removed from the list and management returned to the states or
other appropriate entities. After delisting, the Service monitors species to ensure
their recovery is sustained. Indeed, in this case, the Service has commenced a
nationwide dialogue to encourage wolf conservation after delisting. But Congress
has not authorized the federal government to indefinitely retain the extraordinary
protections of the ESA for species that are no longer threatened or endangered.
The district court misunderstood the ESA’s clear mandate and compounded
that error by imposing its own views of the science. Its decision invalidating the
Rule should be reversed.
3
STATEMENT OF JURISDICTION
The district court had subject-matter jurisdiction under 28 U.S.C. § 1331
because Plaintiffs’ claims arose under the ESA, 16 U.S.C. § 1540(g), and the APA,
5 U.S.C. § 706(2). 2-ER-292–300.
The district court entered final judgment for the Plaintiffs on February 10,
2022. 1-ER-2–3. Intervenor defendants filed notices of appeal on April 11, 2022.
The Service filed timely notices of appeal on April 25, 2022. See Fed. R. App. P.
4(a)(3); 4-ER-592–93. This Court has jurisdiction under 28 U.S.C. § 1291.
STATEMENT OF THE ISSUES
1. Whether the district court misunderstood the ESA to require restoration
of a species in all areas of its historical range by holding that:
a. the Service should have focused more on lone and dispersing
wolves outside the two core populations; and
b. the Service should have directly analyzed threats to wolves in
areas where wolves no longer exist.
2. Whether the district court erred by rejecting the Service’s “significant
portion of its range” analysis.
3. Whether the district court inappropriately substituted its own scientific
judgment about the genetic makeup of West Coast wolves for that of the agency.
4
4. Whether the district court improperly discounted the Service’s
evaluation of existing regulatory mechanisms.
PERTINENT STATUTES AND REGULATIONS
All pertinent statutes and regulations are in the attached Addendum.
STATEMENT OF THE CASE
A. The Endangered Species Act
Congress enacted the ESA to “provide a program for the conservation of . . .
endangered species and threatened species” and to conserve “the ecosystems upon
which [such] species depend.” 16 U.S.C. § 1531(b). The Act’s primary goal is “to
bring any endangered species or threatened species to the point at which the
measures provided pursuant to [the ESA] are no longer necessary.” Id. § 1532(3).
The ESA directs the Secretary of the U.S. Department of the Interior1 to
maintain a list of threatened and endangered species. Id. § 1533(a)(1), (c)(1). An
endangered species is one that “is in danger of extinction throughout all or a
significant portion of its range.” Id. § 1532(6). A threatened species is one “which
is likely to become an endangered species within the foreseeable future throughout
all or a significant portion of its range.” Id. § 1532(20).
1
The Secretaries of the Interior and the U.S. Department of Commerce share
responsibilities for administering the ESA. 16 U.S.C. §§ 1532(15), 1533(a)(2).
Those responsibilities have been delegated to the Fish & Wildlife Service, under
Interior, and the National Marine Fisheries Service, under Commerce. 50 C.F.R.
§ 402.01(b). The Fish & Wildlife Service is responsible for wolves. Id.
5
1. The definition of species
As originally enacted, the ESA defined “species” to include species,
subspecies, and “any other group of fish or wildlife of the same species or smaller
taxa in common spatial arrangement that interbreed when mature.” Pub. L. No. 93-
205, 87 Stat. 884, 886 (1973). The Service listed the gray wolf (Canis lupus) in
1978 under this definition.
Later that same year, Congress amended the definition of “species,” replacing
the words “any other group of fish or wildlife of the same species or smaller taxa in
common spatial arrangement that interbreed when mature” with the words “any
distinct population segment of any species of vertebrate fish or wildlife which
interbreeds when mature.” 16 U.S.C. § 1532(16). This amended category is
commonly known as “distinct population segment” or “DPS.”
2. The five factors for determining a species’ status
Congress directed the Service to determine whether a species is endangered
or threatened because of any of the following factors:
(A) the present or threatened destruction, modification, or

curtailment of its habitat or range;
(B) overutilization for commercial, recreational, scientific, or

educational purposes;
(C) disease or predation;
(D) the inadequacy of existing regulatory mechanisms; or
6
(E) other natural or manmade factors affecting its continued

existence.
Id. § 1533(a)(1). The Service bases its decisions about a species’ status on these five
factors, regardless of whether or how the species is already listed and regardless of
whether the resulting determination leads to listing, delisting, uplisting, or
downlisting the species. The Service will delist a species if it does not meet the
statutory definition of an endangered or threatened species because of these
factors—i.e., when it is “recovered.” 50 C.F.R. § 424.11(e)(2) (2019); accord id.
§ 402.02 (“Recovery means improvement in the status of listed species to the point
at which listing is no longer appropriate under the criteria set out in section 4(a)(1)
of the Act.”). To make these decisions, the Service relies on the best scientific and
commercial data available. 16 U.S.C. § 1533(b)(1)(A).
The ESA requires the Service to periodically re-evaluate listed species to see
if they should be removed (delisted), reclassified from threatened to endangered
(uplisted), or reclassified from endangered to threatened (downlisted). Id. § 1533(c).
People may also petition the agency to list, delist, uplist, or downlist a species. Id.
§ 1533(b)(3).
If after evaluating these factors the Service determines that a listed species is
no longer endangered or threatened and delists it, the Service must monitor the
species for at least five years. Id. § 1533(g). If that monitoring reveals a significant
7
risk to the recovered species, the ESA requires the Service to “make prompt use” of
its emergency procedures to protect the species. Id. § 1533(g)(2).
B. The Recovery and Delisting of the Gray Wolves
1. Gray wolf biology
The gray wolf (Canis lupus) is the largest wild member of the canid (dog)
family. 3-ER-312. They are highly adaptable and resilient animals—they reproduce
easily, survive in many different habitats, and switch their diet to exploit available
food resources. 3-ER-312–13; 3-ER-428–31. Gray wolves have a circumpolar
range that includes North America, Europe, and Asia. 3-ER-428.
As social animals, gray wolves normally live and hunt in packs of about 7
wolves. 3-ER-312; 3-ER-428. Packs are family groups that consist of a breeding
pair, their pups, offspring from previous years, and occasionally an unrelated wolf.
3-ER-428. Litters are typically born every spring and generally produce 5 to 6 pups.
3-ER-428. Offspring usually remain with their parents for a year or two before
dispersing. 3-ER-428.
Pack structure is very adaptable. 3-ER-312; 3-ER-429. Breeding members
can be quickly replaced either from within or outside the pack, and pups can be
reared by another pack member if their parents die. 3-ER-312–13; 3-ER-429. As a
result, wolf populations can increase rapidly and survive severe disruptions if the
source of mortality is reduced. 3-ER-429.
8
Wolves (male and female) often disperse to join another pack or find a mate
to form a new pack. 3-ER-429. Dispersing wolves can travel long distances to find
mates or vacant habitat. 3-ER-429. In North America, dispersing wolves typically
travel around 40 to 96 miles, although some wolves have traveled more than 500
miles. 3-ER-429. These dispersals allow wolf populations to quickly expand and
colonize new areas, so long as there is enough food and sufficient regulation of
human-caused mortality. 3-ER-312; 3-ER-429.
Human-caused mortality is the greatest threat to gray wolves. 3-ER-320; 3-
ER-432–33. But because of their high reproductive rate and mobility, established
wolf populations can sustain annual mortality rates between 17% to 48% without
experiencing population declines. 3-ER-430. For example, from 1999 to 2008, the
wolf population in the Northern Rocky Mountain region rose at an average rate of
24% a year, even though total wolf mortality averaged roughly 16% of the
population each year. 3-ER-323. From 2009 to 2015, total wolf mortality of
Northern Rocky Mountain wolves increased to about 29% a year (mostly from
regulated public harvest), yet that population continued to grow by around 1%
annually. 3-ER-323.
2. The listing and recovery of gray wolves
Gray wolves once ranged throughout most of North America. 3-ER-313; 3-
ER-431. Western expansion brought a pervasive and determined effort to poison,
9
trap, and shoot wolves, which were seen as a threat to humans and livestock. These
government-sponsored eradication programs decimated gray wolves in the United
States. 3-ER-318. By the mid-20th century, gray wolves were largely nonexistent
in most of their historical range south of the Canadian border. Only one population
of wolves persisted in the remote woods of Northeastern Minnesota. 3-ER-434.
Wolf populations in Canada and Alaska, however, remained sizeable and healthy.
In the 1960s and 70s, the Service listed the Eastern Timber Wolf (Canis lupus
lycaon) and the Northern Rocky Mountain Wolf (Canis lupus irremotus) as
endangered species under a predecessor statute to the ESA. 32 Fed. Reg. 4001 (Mar.
11, 1967); 38 Fed. Reg. 14678 (June 4, 1973). After the ESA became law in 1973,
the Service relisted the Eastern Timber Wolf and the Northern Rocky Mountain
Wolf under that statute. 39 Fed. Reg. 1171, 1175 (Jan. 4, 1974). The Service also
listed two other gray wolf subspecies. 3-ER-309.
In 1978, the Service issued a new rule superseding these listings. 43 Fed. Reg.
9607 (Mar. 9, 1978) (the “original listing”). The 1978 rule explained that the older
listings, which focused on wolf subspecies and regional populations, were based on
out-of-date taxonomic information.2 Id. at 9607. Because the Service considered
all subspecies and populations of Canis lupus south of Canada to be endangered or
2
The Service has acknowledged the scientific uncertainty about whether
Canis lupis lycaon is a separate subspecies and recognized that these wolves are
instead part of the Canis lupis species. 3-ER-312.
10
threatened, it determined that “this matter can be handled most conveniently by
listing only the species name.” Id. Although the rule protected all members of Canis
lupus in the lower 48 states, it explained that it considered the gray wolf group in
Minnesota to be one “species” (threatened) and the wolves in the rest of the lower
48 states and Mexico to be another “species” (endangered). Id. at 9610. Those two
geographic entities included large areas where wolves no longer lived and areas
outside their historical range. 3-ER-308.
Congress amended the ESA to include the DPS language in 16 U.S.C.
§ 1532(16) (see supra p. 6) later that same year. The original definition of “species”
contained similar language that authorized the Service to treat as a species “any other
group of fish or wildlife of the same species or smaller taxa in common spatial
arrangement that interbreed when mature.” 87 Stat. at 886. Under that original
definition, the Service listed the Minnesota population as a separate species from the
wolves in the other 47 contiguous states and Mexico. 43 Fed. Reg. at 9610.
The Service never intended to recover or establish wolves everywhere in the
other 47 states. 3-ER-381 (“It was never our intent to recover wolves throughout
the entire geographic area encompassed by the 1978 listing.”). Instead, it developed
and implemented regional recovery plans in the Northern Rocky Mountains, the
Eastern United States (including the Great Lakes region), and the Southwestern
United States (Mexican wolves). 3-ER-305–09.
11
In the Southwestern United States, the Service removed the Mexican
subspecies from the original listing and separately listed it as endangered in 2015.
80 Fed. Reg. 2488 (Jan. 16, 2015). It now manages that subspecies separately from
other gray wolves in the lower 48 states. 3-ER-311.
For the other two regions, the Service’s recovery efforts were very successful,
3-ER-437–51, although it at times faced stiff state and local resistance. Before the
1978 listing, Minnesota contained the only significant wolf population in the lower
48 states. In that listing, the remaining states and Mexico were combined into one
entity because a blanket listing was a way to “conveniently” extend ESA protection
to any wolves existing outside the Minnesota population. 43 Fed. Reg. at 9607. In
the 1990s, the Service reintroduced 66 individual gray wolves into central Idaho and
Yellowstone National Park. 3-ER-437. Since that reintroduction, the population
has expanded, and continues to expand, outward into the greater Western United
States. 3-ER-437. By the end of 2015, there were over 1,700 wolves in the Northern
Rocky Mountain region. 3-ER-450. These wolves are also connected to over 15,000
wolves in Canada. 3-ER-450.
The population of gray wolves in the Great Lakes area also prospered with
ESA protections. In Minnesota alone, the wolves expanded their range by nearly
300% and population numbers have fluctuated between 2,000 and 3,000 wolves
since the early 2000s. 3-ER-443. As the Minnesota wolf population grew,
12
dispersing wolves colonized and established packs in Wisconsin and Michigan, and
those populations multiplied and thrived. 3-ER-443–46. Combined, Minnesota,
Wisconsin, and Michigan now regularly contain over 4,000 wolves. 3-ER-449.
These wolves are connected to about 12,000–14,000 wolves in Canada. 3-ER-314.
As illustrated by the below graph (3-ER-436), gray wolf populations have
greatly exceeded the Service’s demographic recovery goals in both the Great Lakes
and Northern Rocky Mountain regions. 3-ER-436–46; 3-ER-449–51. Gray wolves
also continue to disperse throughout those regions and beyond. 3-ER-436–46; 3-
ER-449–51.
13
3. The Service’s previous regulatory efforts and related

litigation
Recognizing the biological recovery of gray wolves, the Service embarked on
a series of rulemakings to carry out its responsibility under the ESA to review the
lists of endangered and threatened species and determine whether any species should
be delisted, uplisted, or downlisted based on the Act’s five factors. 16 U.S.C.
§ 1533(c). But those efforts have been repeatedly challenged in court. 3-ER-306–
07 (table listing regulatory actions and litigation history). And states have
14
sometimes made controversial management decisions after the Service’s regulatory
actions, changing the factual landscape and heightening public disagreement. There
are too many past rules and related cases to discuss them all here. What is relevant
is that, by 2019, decades of regulatory and judicial actions had left a patchwork of
protections applied to gray wolves in the lower 48 states. 3-ER-306–08.
In the Northern Rocky Mountain region, the Service designated the wolves in
that area as a DPS in 2009 and delisted those wolves, except in Wyoming, where the
Service determined that state regulatory mechanisms were inadequate to ameliorate
the threat of human-caused mortality. 74 Fed. Reg. 15123 (Apr. 2, 2009). After a
court invalidated that rule, Congress instructed the Service to republish the 2009 rule
and shielded it from judicial review. Pub. L. No. 112-10, 125 Stat. 38, 150 (Apr. 15,
2011); 76 Fed. Reg. 25590 (May 5, 2011) (reinstating the 2009 rule). Three years
later, after Wyoming improved its regulatory mechanisms, the Service delisted
wolves in Wyoming too. 77 Fed. Reg. 55530 (Sept. 10, 2012). The D.C. Circuit
upheld that rule, reversing a lower court decision. Defs. of Wildlife v. Zinke, 849
F.3d 1077 (D.C. Cir. 2017); 82 Fed. Reg. 20284 (May 1, 2017) (reinstating the 2012
rule). Since then, wolves in the recovered Northern Rocky Mountain region (Idaho,
Montana, Wyoming, Eastern Oregon, Eastern Washington, and North-Central Utah)
are not listed as threatened or endangered under the ESA. 3-ER-308.
15
In the Great Lakes region, the Service revised the gray wolf listings by
identifying a Western Great Lakes DPS, determining that those wolves were
recovered, and delisting that DPS in 2011. 76 Fed. Reg. 81666 (Dec. 28, 2011). The
rule left the remaining listed wolves outside the Great Lakes protected as
endangered. But the D.C. Circuit affirmed a district court decision invalidating that
rule in Humane Society of the United States v. Zinke, 865 F.3d 585, 600–03 (D.C.
Cir. 2017). The D.C. Circuit confirmed that the Service had the authority under the
ESA to recognize a recovered segment of a listed species as a DPS and to delist it.
Id. at 597–600. But when the Service does so, the Court held it must also address
whether the rest of the listed species, if endangered or threatened, remains
protectable under the Act. Id. at 602. Because the Service’s Great Lakes DPS rule
did not explain whether the rest of the listed wolves qualified as a species under the
Act or whether they were endangered or threatened, the Court held that the rule was
unlawful and affirmed the district court’s vacatur of the rule. Id. at 600–03; accord
Crow Indian Tribe v. United States, 965 F.3d 662, 677 (9th Cir. 2020) (holding that
when the Service delists a DPS, it need only evaluate whether the rest of the species
remains a protectable entity so that no de facto delisting occurs).
16
4. The 2020 delisting rule
By 2019, gray wolves were listed in two entities in the lower 48 states: (1)
threatened in Minnesota and (2) endangered in the rest of the United States except
in the Northern Rocky Mountain and Southwest regions (44 states in total):
3-ER-308 (enhanced for clarity). After an extensive evaluation of the best available
science and commercial data, as well as independent peer reviews and public
comments received during a 120-day public comment period, the Service issued a
117-page Rule removing those gray wolf entities from the list of endangered and
threatened species. 3-ER-304–421.
17
Given the unique listing history, the Service’s previous rules, and the
intervening court decisions, the Service adopted a “conservative approach” in its
Rule. 3-ER-310. Instead of looking at portions of the listed entities as DPSs or
taxonomic units, as it had done previously (see supra pp. 14–16), the Service focused
on the entities as they were listed—threatened in Minnesota and endangered in 44
states. 3-ER-310.
The Service first concluded that neither listed entity constituted a protectable
“species” as defined by Congress. 3-ER-309–10. Although in the Service’s view,
that conclusion could provide an “independent basis for delisting,” 3-ER-310, it
declined to “remov[e] the listed entities solely because they do not meet the statutory
definition of a ‘species.’” 3-ER-310. Instead, the Service exercised its discretion to
“consider whether any populations of gray wolves covered by the listed entities meet
the definition of a threatened species or endangered species” before delisting the
wolves. 3-ER-310.
Considering the unique listing history, the Service analyzed gray wolves in
three different configurations: (1) each listed entity separately; (2) the two listed
entities combined; and (3) a single gray wolf entity including all gray wolves in the
lower 48 states (except for the Mexican wolf subspecies). 3-ER-310–11. The
Service extensively analyzed these configurations and concluded that none were
endangered or threatened in all or a significant portion of their range under any of
18
the five factors governing listing determinations. 16 U.S.C. § 1533(a)(1). The
Service thus delisted the current wolf entities and did not list any new or different
wolf entity.3
C. Proceedings below
Environmental organizations challenged the Rule in three related cases in the
Northern District of California. 1-ER-5. The State of Utah, Safari Club, and
National Rifle Association intervened as defendants.4 1-ER-5.
3
As discussed above (pp. 14–16), the Service’s decisions about gray wolves
are often controversial and subject to litigation. On February 7, 2024, the Service
denied petitions to relist the Northern Rocky Mountain wolves, concluding that
listing those wolves or a larger DPS of wolves in the Western United States is not
warranted. 89 Fed. Reg. 8391 (Feb. 7, 2024). That finding, which did not change
the listing status of wolves, is currently in litigation. Ctr. for Biological Diversity v.
U.S. Fish & Wildlife Serv., No. 9:24-cv-86 (D. Mont.). The Service also committed
in other litigation “to develop and post on its website a draft recovery plan for listed
gray wolves, unless the Service finds that such a plan will not promote the
conservation of the species and posts the finding on its website.” ECF No. 25-1,
Stipulated Settlement Agreement, Ctr. for Biological Diversity v. Haaland, No.
1:22-cv-03588 (D.D.C. Dec. 13, 2023). These actions and related cases are not
relevant to this appeal, but highlight the difficulties faced by the Service every time
it acts regarding gray wolves. See also Press Release, U.S. Fish & Wildlife, National
Dialogue Initiated on Working Landscapes and Gray Wolves (Dec. 13, 2023),
https://www.fws.gov/press-release/2023-12/national-dialogue-initiated-working-
landscapes-and-gray-wolves.
4
The district court denied motions to intervene by various sportsmen and
agricultural groups. The agricultural groups appealed, and this Court reversed,
allowing them to participate as intervenors in this appeal. Order, Defs. of Wildlife v.
U.S. Fish & Wildlife Serv., No. 21-16382 (9th Cir. Aug. 24, 2022).
19
The district court granted summary judgment for Plaintiffs on most of their
claims and vacated and remanded the Rule. 1-ER-10–29. Relevant to this appeal,
the court identified several purported errors with the Service’s scientific
determination that the listed gray wolves are no longer endangered or threatened. 1-
ER-13–29.
First, the court concluded that the Service did not adequately consider threats
to lone and dispersing wolves outside the two metapopulations. 1-ER-13–14.
Second, in the court’s view, the Service overlooked science showing that West Coast
wolves are distinct from the Northern Rocky Mountain wolves. 1-ER-14–17. Third,
the court determined that the Rule’s definition of “significant” was unreasonable at
Chevron Step Two. 1-ER-17–21. Fourth, the court held that the Service did not
sufficiently analyze the effects of the wolf’s lost historical range. 1-ER-21–22. And
finally, while the court determined that the Service reasonably concluded that
existing state regulatory mechanisms were adequate to ensure protection of wolves
after delisting, 1-ER-22–26, the court ruled that the Service failed to consider
whether federal land management regimes also would protect the wolves. 1-ER-26.
The district court also rejected the Service’s and Intervenors’ threshold
argument that the Rule could be independently upheld because the listed entities do
not meet the ESA’s definition of “species.” 1-ER-10–13. It explained that it could
not uphold the Rule on this basis because the Service itself expressly declined to rely
20
solely on its species determination. 1-ER-12–13. The Service does not challenge
this holding on appeal.
SUMMARY OF ARGUMENT
The Rule removing the gray wolf entities from the list of endangered and
threatened species should be upheld. The gray wolf is one of the ESA’s biggest
success stories: it has made a remarkable recovery and now thrives in the continental
United States in two large, expanding metapopulations that are also connected to
large populations of wolves in Canada. The district court’s decision faulting the
Service’s extensive recovery analysis fundamentally misunderstands the ESA, the
relevant science, and the role of a reviewing court under the APA.
1. The district court’s decision rests on its mistaken belief that the ESA
requires the Service to protect individual members of a healthy species and to restore
that species throughout its historical range.
a. The district court ruled that the Service should have focused more on
lone dispersers and peripheral wolves in its analysis. But the record shows that the
Service carefully analyzed wolves in three different configurations and concluded
that none of those entities were endangered or threatened because of any of the five
factors. The district court implied that the Service’s analysis improperly left lone
wolves and dispersers without protection. But the ESA requires the conservation
21
and recovery of species; it does not require the protection of individual animals that
are part of a healthy, viable species.
b. Similarly, the district court held that the Service erred by failing to
consider threats to wolves in areas of the United States where wolf populations no
longer exist. As a practical matter, however, the Service cannot evaluate the threat
of humans to wolves in places where wolves do not exist. Besides, that type of
analysis would matter only if the ESA required the Service to restore each listed
species to every place it existed historically. But the statute imposes no such
obligation. Because the Service determined based on the best available science that
wolves are not endangered or threatened in their current range, even considering the
loss of their historical range, the Service’s analysis should be upheld.
2. The district court also wrongly rejected the Service’s analysis of which
portions of the wolf’s range were “significant.” The court determined that the
Service’s interpretation of “significant” was unreasonable because it did not provide
any objective guideposts. But the ESA does not direct the Service to use quantitative
measurements. Congress instead used the term “significant,” which in this context
is best read to leave the Service with flexibility to consider the best available science
and specific biology of each species. The Service’s application of that standard to
this case was not arbitrary or capricious. It carefully explained that it evaluated
significance based on “any reasonable definition” of the term, and provided rational,
22
fact-based reasons for its conclusion that the wolf is not imperiled in any significant
portion of its range.
3. Next, the district court improperly substituted its understanding of the
genetic makeup of gray wolves in the Western United States for that of the Service.
The Service analyzed the best available science and concluded that wolves in
Washington, Oregon, and California (the West Coast wolves) were genetic
descendants of the population of wolves in the Northern Rocky Mountain region.
Citing to a single sentence in one of the scientific studies the Service evaluated, the
district court rejected the Service’s conclusion and suggested that West Coast wolves
are, in fact, genetically distinct from Northern Rocky Mountain wolves. But the
court misread the science and, in any event, should have respected the Service’s
expert judgment.
4. The district court also erred in holding that the Service failed to
consider the adequacy of existing regulatory mechanisms to protect wolves after
delisting. The court credited the Service’s conclusion that state regulatory
mechanisms will protect wolves after delisting, once management of wolves returns
to the states. Yet the court held that the Service should have said more about federal
regulatory mechanisms, including that some land management plans lack specific
guidelines for wolves. But under the ESA the Service is only required to examine
regulatory mechanisms that will apply after delisting and determine whether those
23
mechanisms will be inadequate to protect the species. Contrary to the district court’s
suggestion, the Service need not conclude that the mechanisms are the best or most
protective. Here, the Service appropriately examined existing state regulations,
combined with existing federal regulatory mechanisms, and concluded that those
regimes were adequate to protect wolves after delisting. Nothing else is required.
STANDARD OF REVIEW
This Court reviews the district court’s summary-judgment decision de novo.
San Luis & Delta-Mendota Water Auth. v. Locke, 776 F.3d 971, 991 (9th Cir. 2014).
It conducts its “own review of the administrative record,” without deference to the
district court. Id.
The rulemaking here is reviewed under the highly deferential standard of the
APA, 5 U.S.C. § 706(2)(A). An agency action is arbitrary and capricious only if
“the agency has relied on factors which Congress has not intended it to consider,
entirely failed to consider an important aspect of the problem, offered an explanation
for its decision 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.” Motor Vehicle Mfs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463
U.S. 29, 43 (1983); accord Native Ecosystems Council v. Weldon, 697 F.3d 1043,
1050–51 (9th Cir. 2012). Under this standard, courts are the most deferential
“[w]hen the agency is making predictions, within its [area of] special expertise, at
24
the frontiers of science.” Forest Guardians v. U.S. Forest Serv., 329 F.3d 1089,
1099 (9th Cir. 2003) (citation omitted).
ARGUMENT
I. The district court’s decision rests on the incorrect assumption that

the ESA requires restoration of a species throughout its historical
range.
The ESA’s goal is the recovery of species from the risk of extinction. 16
U.S.C. §§ 1531(b), 1532(3); Tenn. Valley Auth. v. Hill, 437 U.S. 153, 184 (1978)
(“The plain intent of Congress in enacting this statute was to halt and reverse the
trend toward species, extinction . . . .”). So it makes sense that the statute and its
protections apply to only species that are “in danger of extinction” or in danger of
becoming so in the foreseeable future. 16 U.S.C. § 1532(6), 1532(20). Likewise,
recovery under the ESA is the absence of the threat of extinction. When the Service
determines, based on the best available science, that a species is no longer threatened
or endangered—i.e., recovered—it will delist the species. 50 C.F.R. § 424.11(e)(2).
Congress deliberately used broad terms denoting the status of entire “species,”
like “endangered” and “threatened,” rather than providing specific benchmarks like
the presence of a species in a certain percentage of its former range or an increase in
population to a certain percentage of its peak numbers. See Defs. of Wildlife v.
Norton, 258 F.3d 1136, 1143 (9th Cir. 2001) (“[W]ere a brightline percentage
appropriate for determining when listing was necessary, Congress could simply have
25
included that percentage in the text of the ESA.”). This allows the Service, in its
expert judgment, to perform a species-by-species inquiry. See id. As this Court has
recognized, “it simply does not make sense to assume that the loss of a
predetermined percentage of habitat or range would necessarily qualify a species for
listing. A species with an exceptionally large historical range may continue to enjoy
healthy population levels despite the loss of a substantial amount of suitable
habitat.”5 Id.
Take, for example, the American black bear. Black bears have been
eradicated from many parts of their historical range, including many states. Brian
K. Scheick & Walter McCown, Geographic Distribution of American Black Bears
in North America, 25 Ursus, no. 2, 2014, at 29. Yet hundreds of thousands of black
bears remain in the United States in stable and increasing populations, see id., even
though in some states they are subject to hunting. Listing the American black bear
would not only impose unnecessary protective measures for a healthy, viable
species, it would also take away limited government resources from genuinely
endangered and threatened species. Defs. of Wildlife, 258 F.3d at 1143 n.9.
Just as a species does not qualify for listing simply because it no longer
occupies all or even most of its historical range, a species may not remain on the list
5
On the flip side, the Service has listed other species as endangered or
threatened, even though they still inhabit a large part of their historical range. E.g.,
88 Fed. Reg. 11600 (Feb. 23, 2023) (proposed); 87 Fed. Reg. 76882 (Dec. 15, 2022).
26
simply because it has not repopulated everywhere it used to be. Instead, Congress
directed the Service to make listing and delisting decisions based on the best
available science as to five statutory factors. 16 U.S.C. § 1533(a)(1). And while the
contraction and expansion of a species’ range is relevant to the Service’s analysis of
those factors (see infra pp. 35–37), none mandate that a species occupy the entirety
or even a certain percentage of its historical range to be considered recovered.
Despite this textual evidence that the ESA does not require restoration of a
species throughout its historical range, the district court presumed that the Service
could not delist the gray wolf entities until it could prove that wolves outside the
core populations and current range were not at risk. This underlying assumption is
evident in two of the court’s conclusions: (1) that the Service did not adequately
consider wolves outside the two core populations, 1-ER-13–14; and (2) that the
Service did not sufficiently consider the wolf’s lost historical range, 1-ER-21–22.
In both instances, the district court overlooked sizeable evidence in the
administrative record showing that the Service did the required analysis. Rather than
credit this analysis, as the APA requires, the district court reprimanded the Service
for not focusing more on lone wolves and areas without wolf populations. But those
concerns go to the restoration of the wolves’ historical range and whether wolves
could become more widespread or abundant in the United States. They do not speak
27
to whether the listed entities are endangered or threatened, which is the relevant
standard established by the text of the ESA.
A. The Service carefully analyzed all listed wolves, not just

segments of the entities.
As discussed above (pp. 9–16), when making listing decisions for the gray
wolf, the Service must navigate a complicated background of past regulatory actions
and court decisions. That context informed the Service’s conservative approach in
the Rule. The agency noted that its past regulatory actions had focused on portions
of the listed entities as DPSs and taxonomic units. 3-ER-310. By contrast, in this
Rule, the Service intentionally chose to “focus on the currently listed entities.” 3-
ER-310. It first analyzed the listed entities separately. 3-ER-310–13; 3-ER-406–
12. It then also applied the ESA’s five factors to other configurations of wolves,
including the combined listed entities and “a single gray wolf entity that includes all
gray wolves in the lower 48 state[s] and Mexico except for the Mexican wolf
[subspecies].” 3-ER-310; 3-ER-412–15; 3-ER-415–19.
The Service undertook this extensive analysis because of “the unique listing
history of the gray wolf.” 3-ER-310. As the Service recognized, the two listed
entities were “largely vestiges of a 42-year-old action” that pre-dated the Service’s
current DPS policy. 3-ER-310. Moreover, the original listing had been modified by
other rules, including the separate Mexican wolf subspecies listing and the Northern
Rocky Mountain delisting rule that Congress reinstated. See supra pp. 9–16; 3-ER-
28
308–11. Given that background and the intervening court decisions in Crow Tribe
and Humane Society, the Service was careful to ensure that it addressed the status of
any reasonable configuration of the wolf entities in the lower 48 states, whether
listed or not. 3-ER-310–13.
Ultimately, the Service concluded that none of the wolf configurations were
endangered or threatened, and therefore delisted the currently listed gray wolf
entities. Key to its conclusion was that wolves now exist in the lower 48 states in
two large metapopulations that are stable or growing. 3-ER-416. These populations
are broadly distributed and contain high levels of genetic diversity. 3-ER-416. They
can also withstand many threats, including higher levels of mortality, because
wolves can disperse long distances, recolonize, and quickly reproduce. 3-ER-416.
These two populations are also connected to large populations of wolves in
Canada. 3-ER-416. As the Service recognized, “[p]opulations that are connected to
and interact with other populations of the same species (metapopulations) are widely
recognized as being more secure over the long term than are several isolated
populations that contain the same total number of packs and individuals.” 3-ER-
408.
Based on these thriving metapopulations, the Service concluded that wolves
outside those areas “are not necessary for the recovered status” of gray wolves in
any of the three configurations. 3-ER-409; 3-ER-412–13; 3-ER-417. Of course, the
29
agency recognized that these individual wolves add value and further enhance the
viability of the species. But the Service ultimately determined that “the[se other
wolves] are not necessary in order to conserve wolves to the point that they no longer
meet the definitions of endangered or threatened.” 3-ER-409; 3-ER-412–13; 3-ER-
417.
1. The Service’s biological decision to focus on core

metapopulations does not mean it overlooked other
gray wolves.
The district court criticized the Service’s conclusion and described its analysis
of threats to wolves outside the metapopulations as “dismiss[ive]” and “cursory.” 1-
ER-14. Not so. Even though the Service recognized the biological importance of
metapopulations, the Service still carefully acknowledged lone and dispersing
wolves in its threats analysis. For instance, it recognized that gray wolves in the
periphery of occupied range could be at higher risk of inbreeding “as wolves
continue to disperse and recolonize areas within their historical range.” 3-ER-347.
But it determined that these effects “would not likely be widespread or impact the
larger population.” 3-ER-347. Thus, this increased risk “is not likely to be of such
a magnitude . . . to pose a significant threat to the species.” 3-ER-347.
Likewise, the Service acknowledged that the risk of human-caused mortality
“is not uniform” and “tends to be highest for dispersing animals” and wolves “on the
peripheries of occupied wolf range.” 3-ER-320; 3-ER-414; 3-ER-418. And
30
although the Service expected mortality to rise slightly post-delisting, it concluded
that mortality would be adequately regulated and would not threaten the species
overall. 3-ER-338–39. The Service explained that the heightened risk to peripheral
wolves was not a concern for the species because those wolves descended from the
core populations, are lone dispersers, or have few (if any) breeding pairs. 3-ER-417.
The Service also addressed the small number of wolves in Colorado, and
specifically concluded that human-caused mortality did not and would not threaten
those wolves or their ability to recolonize and expand. 3-ER-338; see also 3-ER-
373 (noting that there is no empirical evidence indicating that increased human-
caused mortality would affect or has affected peripheral wolves).
The district court overlooked this thorough analysis. Instead of crediting the
agency’s scientific determination about the species as a whole, the court blamed the
Service for not placing greater emphasis on threats to individual wolves. 1-ER-14.
It is not the court’s job, however, to weigh that evidence. See Nw. Ecosystem All. v.
U.S. Fish & Wildlife Serv., 475 F.3d 1136, 1140 (9th Cir. 2007) (a court must affirm
agency action “if a reasonable basis exists for its decision”). Besides, any evidence
that peripheral or lone wolves are at greater risk is not evidence that the species
overall, in any reasonable configuration, is imperiled.
The court’s conclusion also misunderstands the science of species
vulnerability. All species are affected to some degree by threats like disease,
31
predation, and human-caused mortality. So putting a spotlight on the most
vulnerable individuals of a species will always lead to the conclusion that those
individuals are at risk. But that does not mean that every species is in danger of
extinction throughout all or a significant portion of its range now or in the
foreseeable future. The ESA directs the Service to list a species, and keep it listed,
only if the very existence of that species is endangered or threatened by any of the
five statutory factors. 16 U.S.C. § 1533(a)(1), (c). The Act is not meant to protect
individual members of a species that is not threatened or endangered.
2. The Service’s approach is consistent with Humane

Society.
In the district court’s view, the Service’s analysis also conflicted with Humane
Society because it “fail[ed] to address the status of wolves outside core populations.”
1-ER-14. But the court misinterpreted that case. Humane Society addressed a
previous rule that designated and delisted a segment of the listed wolves without
considering whether the remaining listed wolves were still protectable as a “species”
under the ESA. 865 F.3d at 602; see supra p. 16 (providing a summary of the case).
The D.C. Circuit explained that because the Service did not examine the status of
the remaining remnant wolves, it could lead to a “de facto delisting of already-listed
species” by “sidestepping the process Congress has plainly prescribed for delisting.”
Humane Soc’y, 865 F.3d at 602 (cleaned up); accord Crow Tribe, 965 F.3d at 678.
32
By contrast, the Service here examined all listed gray wolf entities, leaving no
remnant with uncertain status. The agency was upfront that it was delisting the
entirety of both listed entities, not just a segment. But before it did so, the Service
exhaustively analyzed the listed wolves in three configurations under the ESA’s five
statutory factors. 3-ER-405–19. And for each configuration, the Service concluded
that none of the factors indicated that the wolves were threatened or endangered. 3-
ER-405–19. In other words, there was nothing “de facto” about this delisting. The
Service did exactly what Humane Society—and this Court in Crow Tribe—
instructed it to do: it considered all listed gray wolf entities and delisted them only
after considering the ESA’s “specifically enumerated requirements for delisting.”
Humane Society, 865 F.3d at 602; accord Crow Tribe, 965 F.3d at 678.
The district court nonetheless suggested that Humane Society requires the
Service to keep a species on the list whenever some individual members of that
species are susceptible to threats. See 1-ER-14. There is no basis for that expansive
reading. Humane Society addressed a narrow question: could the Service designate
and delist a segment of a listed species? The D.C. Circuit said yes, but held that
when the Service does so, it must determine that the remnant of the listed species “if
still endangered or threatened” remains protectable. 865 F.3d at 602 (emphasis
added). The Service did not leave a listed remnant here. And, in any event, the
Service carefully applied the statutory five factors to the listed entities as well as to
33
all gray wolves in the lower 48 states (minus the Mexican wolf subspecies) and
concluded that none were endangered or threatened. Thus, the Rule left no remnant
implicating the concerns raised in Humane Society or Crow Tribe.
If the district court’s interpretation of Humane Society were correct, it would
be impossible for the Service to ever delist gray wolves. A healthy, recovered
population of gray wolves will often be growing. This means that there will often
be dispersers or other individual animals on and outside the edges of existing
populations. If those peripheral individuals are always considered a “remnant” that
must survive independently outside of the larger metapopulations, as alluded to by
the district court, then gray wolves cannot be delisted until no population can expand
further. But as discussed above (pp. 25–28), and reaffirmed in Humane Society, 865
F.3d at 606, the ESA does not require that federal protection of a species continue
unless and until it is repopulated in all suitable habitat.
B. The Service appropriately considered lost historical range.
The ESA tasks the Service with determining whether a species “is in danger
of extinction throughout all or a significant portion of its range,” or likely to become
so in the foreseeable future, based on the five factors. 16 U.S.C. §§ 1532(6),
1532(20), 1533(a)(1). No party has disputed that the term “range” means “current,”
34
not historical, range. ECF 74, Pls’ S.J. Mot. at 28–30 (July 16, 2021); ECF 129, Pls’
Reply at 19 (Sept. 15, 2021).6
As the Service has recognized, the present-tense phrase “is in danger” is best
read as referring to presently existing—not past—conditions. 79 Fed. Reg. 37578,
37583–84 (July 1, 2014) (hereinafter “SPR Policy”); cf. Bonnichsen v. United States,
367 F.3d 864, 875 (9th Cir. 2004) (interpreting the statutory phrase “a tribe, people,
or culture that is indigenous” to mean “presently existing Indian tribes”). “[T]o say
a species ‘is in danger’ in an area where it no longer exists—i.e., in its historical
range where it has been extirpated—is inconsistent with common usage.” SPR
Policy, 79 Fed. Reg. at 37583; see also Humane Soc’y, 865 F.3d at 605 (“[F]ocusing
on the species’ survival in the range it currently occupies is consonant with the
purposes of the [ESA], because the threats that a species confronts where it currently
lives often affect its continued survival the most and thus bear influentially on
whether it should be listed.”).
Not only is the Service’s interpretation of “range” the most natural reading of
the statute’s text, this Court has upheld it. Ctr. for Biological Diversity v. Zinke, 900
F.3d 1053, 1066–67 (9th Cir. 2018). That holding is entitled to statutory stare
decisis, even though it relied on the then-prevailing framework of Chevron, U.S.A.,
6
Nor did the district court. In fact, the court recognized that the Service’s
understanding of range was lawful. 1-ER-21.
35
Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). Loper Bright Enters. v.
Raimondo, 144 S. Ct. 2244, 2273 (2024) (“[W]e do not call into question prior cases
that relied on the Chevron framework.”); see infra pp. 41–45 (discussing Loper
Bright). Overruling this precedent would require action from this Court sitting en
banc because “to say a precedent relied on Chevron is, at best, ‘just an argument that
the precedent was wrongly decided.’” Loper Bright, 144 S. Ct. at 2273 (quoting
Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258, 266 (2014)).
It is therefore settled for present purposes that lost historical range is not a
separate inquiry or a stand-alone reason for listing. Of course, the Service must still
consider the historical range of a species, including any lost historical range, when
it evaluates the five factors. Ctr. for Biological Diversity, 900 F.3d 1064 (“FWS
must at least explain why the lost and threatened portions of a species’ range are
insignificant before disregarding historical range”); Humane Soc’y, 865 F.3d at 606
(the Service “needs to consider the scope of the species’ historical range, and the
impact that material contraction or relocation might indicate for survival within a
currently constricted or confined range”). Indeed, “evaluating the effects of lost
historical range on the viability of the species is an important component of
evaluating the current status of the species.” SPR Policy, 79 Fed. Reg. at 37584.
Range contraction may be relevant to the Service’s five-factor analysis in
several ways. Most typically, the effects of range contraction may increase a
36
species’ vulnerability to various threats. Id.; see 3-ER-318. This is true when a
species requires a broader range than it currently occupies for long-term viability—
either because of specific biological needs or because a broader range would insulate
the species against other threats. For instance, “a species with a reduced range is at
greater risk of all or most of its populations being affected by a catastrophic event
such as a hurricane or fire.” SPR Policy, 79 Fed. Reg. at 37584.
In some cases, lost historical range may also be relevant as evidence of the
effects of an ongoing or future threat. Id. For example, if an invasive predator
species eradicated another species from its historical range, the Service would look
at whether that invasive species is spreading (or likely to spread) to the native
species’ current range and, if so, whether that spread is still a threat. By contrast, if
range contraction is not ongoing because the threats that caused that original
contraction have subsided, then past range contraction may not shed much light on
the current or future status of a species.
The only question for this Court is whether the Service rationally took the
gray wolf’s historical range into account when applying the five factors. It did.
Although wolves have lost substantial historical range in the lower 48 states, 3-ER-
318, the Service rationally concluded that the listed entities do not presently meet
the definition of a threatened or endangered species despite this range contraction.
3-ER-410–19.
37
First, the Service explained that “human-caused mortality” was “the main
factor responsible for the decline of gray wolves.” 3-ER-320. Likewise, “[a]n active
eradication program [wa]s the sole reason that wolves were extirpated from much of
their historical range in the United States.” 3-ER-320 (emphasis added). But those
eradication programs have ended, and human-caused mortality of wolves is highly
regulated throughout most of its suitable habitat (and, as the Service determined at
the time of the Rule, human-caused mortality would remain adequately regulated
post-delisting). 3-ER-320–39; 3-ER-347–69.
Second, the Service considered the ongoing effects of that range contraction
in its analysis. For instance, the Service noted that a contracted range slightly
impaired genetic diversity. 3-ER-346 (noting study examining historical genetic
diversity and concluding that a significant amount had likely been lost). And the
agency recognized that the decreased number of wolves made the overall species
more vulnerable to threats. 3-ER-318. But ultimately, the Service concluded that
the causes of the contraction and its effects “have been ameliorated or reduced” and
do not threaten the viability of the species. 3-ER-412; 3-ER-415; 3-ER-419.
For example, the Service observed that the risk of human-caused mortality
“tends to be highest for dispersing [wolves]” and for wolves at the outside
peripheries of the current range, 3-ER-320, but it determined that human-caused
mortality did not imperil the species because of the thriving metapopulations and the
38
ability of wolves to reproduce, disperse, and find vacant habitat. 3-ER-322. Based
on evidence of wolves post-delisting in the Northern Rocky Mountain region, the
Service concluded that wolves would continue to disperse from the core populations,
moving out and recolonizing vacant suitable habitat in the West. 3-ER-385; 3-ER-
320–39.
The district court did not acknowledge any of this analysis. Instead, the court
faulted the Service for failing to analyze the threat of human-caused mortality in
areas outside the wolf’s current range in the United States. 1-ER-22. But, putting
aside the question how to even get the relevant data, it makes no sense to require the
Service to directly analyze the threat humans pose to wolves in areas where wolves
do not exist. In short, it is pointless to separately consider whether the wolves are
“in danger of extinction” in areas where there are no wolves.
The district court’s decision effectively changes “current range” to “historical
range,” by requiring the Service to analyze threats to wolves in all areas of its
historical range in the United States. 1-ER-22. But, again, the ESA does not require
the Service to restore wolves to all areas where they used to be. Particularly in this
case, such a requirement is impossible to meet, given how widespread wolves used
to be and the significant development in many of those areas. See, e.g., 3-ER-339
(“While it is also possible for wolves to recolonize other non-forested portions of
their historical range in the Midwest, relatively high densities of livestock and
39
limited hiding cover for wolves (forests) in this region are likely reasons that wolves
have failed to recolonize in this area.”). The practical consequence of the district
court’s holding is that the gray wolf can never be delisted.
II. The district court erred in rejecting the Rule’s evaluation of

“significant portion of its range.”
In analyzing whether gray wolves are endangered or threatened throughout a
significant portion of their range, the Service must consider whether portions of the
wolf’s current range are “significant.” 16 U.S.C. § 1532(6), (20). The Service’s
2014 SPR Policy set forth a definition of “significant,” 79 Fed. Reg. at 37583, which
was challenged and overturned.7 Given that litigation, the Service explained in its
Proposed Rule that it had “not yet determined the best way to interpret ‘significant,’”
but it applied the term “in a way that is consistent with . . . relevant case law.” 3-
ER-530. The Service then explained that it looked for portions “that could be
significant under any reasonable definition of ‘significant.’” 3-ER-530. For the gray
wolf, that meant that the Service examined “any portions that may be biologically
important in terms of the resiliency, redundancy, or representation of the species.”
3-ER-530. The Service made clear that this approach was “limited to this analysis,
and is not precedent for any future determinations.” 3-ER-530.
7
Desert Survivors v. U.S. Dep’t of Interior, 321 F. Supp. 3d 1011 (N.D. Cal.
2018); Ctr. for Biological Diversity v. Jewell, 248 F. Supp. 3d 946, 956 (D. Ariz.
2017).
40
In the Rule, the Service again stated that it “evaluated whether any portions
[of the wolf’s range] could be considered significant under any reasonable definition
of ‘significant.’” 3-ER-404. It thus “asked whether any portions of the range may
be biologically meaningful in terms of the resiliency, redundancy, or representation
of the entity being evaluated.” 3-ER-380; 3-ER-404.
In the district court, the Service argued that the Rule’s definition of
“significant” should receive deference under the then-prevailing Chevron
framework. ECF No 107, Fed. S.J. Mot. at 33 (August 20, 2021). The district court
agreed that the Chevron framework applied but held that the Service’s interpretation
was unreasonable because it “lacks objective guideposts or factors against which the
Court can judge the exercise of discretion.” 1-ER-20.
On June 18, 2024, the Supreme Court issued Loper Bright Enterprises v.
Raimondo, 144 S. Ct. 2244 (2024), which overruled the Chevron deference
framework. But putting Chevron aside, the Rule should be upheld.
A. The ESA delegates to the Service the task of judging

“significant” on a species-by-species basis.
While the judiciary’s role under Loper Bright is to independently determine
the best interpretation of a statute when called on, it does not follow that courts must
always themselves definitively resolve the meaning of a statutory term or phrase.
Cf. Pac. Gas & Elec. Co. v. Fed. Energy Regul. Comm’n, ---- F.4th ----, 2024 WL
3908398, *6 (D.C. Cir. Aug. 23, 2024). Here, there is no need to decide what
41
possible interpretation of “significant” may be best, because the Service provided a
rational explanation for its action under any reasonable candidate for best
interpretation.8
Moreover, the best reading of the statute is that it delegates to the Service the
scientific task of assessing whether a particular portion of an individual species’
range is “significant,” within the term’s broad outer boundaries. Congress directed
that “[t]he Secretary shall by regulation . . . determine whether any species is an
endangered species or a threatened species because of any of the [five] factors,” 16
U.S.C. § 1533(a)(1), and Congress broadly defined “endangered” as “any species
which is in danger of extinction throughout all or a significant portion of its range,”
id. § 1532(6). Read together, that text “expressly delegate[s]” to the Service the task
of judging significance for each species. Loper Bright, 144 S. Ct. at 2263 (citation
omitted).
The role of the Court is limited to “recognizing” the delegation, “fixing the
boundaries of the delegated authority,” and “ensuring the agency has engaged in
‘reasoned decisionmaking’ within those boundaries.” Id. (cleaned up). Here, the
8
For the same reason, the Court need not decide whether the Rule’s proffered
definition of “significant”—portions of the range that contribute meaningfully to the
resiliency, redundancy, or representation of the gray wolf entity—is the best
interpretation of that term. The Service did not adopt an all-purpose definition of
“significant” in the Rule, and the agency is considering options for an interpretation
that could be broadly applied to all species.
42
outer boundaries are broad, because the word “significant” itself “leaves [the
Service] with flexibility.” Id. (citation omitted); see Kisor v. Wilkie, 588 U.S. 558,
632 (2019) (Kavanaugh, J., concurring in the judgment) (“‘[O]pen-ended terms’ like
‘reasonable,’ ‘appropriate,’ ‘feasible’ and ‘practicable’” “afford agencies broad
policy discretion”). Under the ordinary meaning of the term at the time of
enactment, Bostock v. Clayton Cnty., 590 U.S. 644, 654 (2020), “significant” refers
to more than geographical size: it means sufficiently great or important to be worthy
of attention; noteworthy; consequential; influential. Oxford English Dictionary 37
(1978) (“full of meaning or import;” “important, notable”); Webster’s Third New
International Dictionary 2116 (1976) (“having meaning;” “having or likely to have
influence or effect: deserving to be considered;” “important, weighty, notable”).
This open-ended term thus hinges on its context: Congress’s direction that the
Service make an expert biological determination about whether a particular species
is endangered throughout all or a significant portion of its range. Loper Bright, 144
S. Ct. at 2263 (words like “appropriate” and “reasonable” leave agencies with
flexibility).
Indeed, as this Court has recognized, Congress deliberately used the broad
phrase “significant portion of its range” to “allow the Secretary more flexibility in
her approach to wildlife management.” Defs. of Wildlife, 258 F.3d at 1144. As a
result, “[t]he Secretary necessarily has a wide degree of discretion,” id. at 1145, in
43
determining what is “significant” for each species, based on the best available
science relevant to that particular species.
Because the ESA “delegates authority to an agency,” “courts must respect the
delegation, while ensuring that the agency acts within it.” Loper Bright, 144 S. Ct.
at 2273. A court may not decide for itself what portions of a species’ range are
significant. See River Runners for Wilderness v. Martin, 593 F.3d 1064, 1070 (9th
Cir. 2010). Congress instead entrusted those decisions to the Service, subject to
judicial review only to ensure against action “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see
generally Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 376–77 (1989) (agency
determination that new information was not “significant” enough to warrant
supplemental environmental analysis was not a legal question about the meaning of
significance but instead involved “primarily issues of fact” that “require[d] a high
level of technical expertise” (citation omitted)). That allocation of authority is
“altogether fitting,” because courts lack the “scientific” and “technological”
expertise needed for “coping with issues of this order.” Am. Elec. Power Co. v.
Connecticut, 564 U.S. 410, 428 (2011).
As explained below, the Service’s application of the term “significant” was
sound and should be sustained under the arbitrary-and-capricious standard of review.
If the Court disagrees, it should remand for the Service to reinterpret the term in the
44
first instance because its application to gray wolves may “rest[] on factual premises
within the agency’s expertise.” Loper Bright, 144 S. Ct. at 2267 (cleaned up).
B. The Service’s application of “significant” was not arbitrary

or capricious.
As discussed above (p. 24), the APA’s arbitrary-and-capricious standard of
review is narrow and requires only that the agency’s exercise of discretion within
the statutory framework “be reasonable and reasonably explained.” Lotus Vaping
Techs., LLC v. U.S. Food & Drug Admin., 73 F.4th 657, 668 (9th Cir. 2023) (citation
omitted). That standard is satisfied here.
For each configuration of gray wolves, the Service asked whether those
entities were in danger of extinction or likely to become so in the foreseeable future
throughout all their range. 3-ER-406 (Minnesota entity); 3-ER-408–09 (44-state
entity); 3-ER-412–14 (combined listed entity); 3-ER-415–18 (lower 48-state entity).
After answering “no” to that question, the Service evaluated whether there were any
significant portions of each configuration’s range where wolves may be in danger of
extinction or likely to become so in the foreseeable future. 3-ER-406. The Service
ultimately determined that none of the configurations showed that wolves were
endangered or threatened in any significant portions of their range. 3-ER-407–08
(Minnesota entity); 3-ER-410–11 (44-state entity); 3-ER-414–15 (combined listed
entity); 3-ER-418–19 (lower 48-state entity).
45
Specifically, the Service identified portions of each entity’s range where gray
wolves face greater threats and determined that none of those portions were
significant. E.g., 3-ER-418–19. For example, the Service acknowledged that
portions peripheral to the Great Lakes metapopulation contained a few wolves that
may be at greater risk, but the agency determined that wolves in those portions were
not significant to any configuration of wolves. 3-ER-408; 3-ER-411; 3-ER-418.
The Service explained that those portions were not meaningful to the resiliency or
redundancy of the entities because they contained few wolves or few breeding pairs.
3-ER-408; 3-ER-411; 3-ER-418. Those portions also do not contribute to the
representation of the species, because they descended from the metapopulation or,
in the case of wolves on Isle Royale, are genetically isolated. 3-ER-408; 3-ER-411;
3-ER-418.
Likewise, the Service determined that portions peripheral to the Northern
Rocky Mountain metapopulation were not biologically significant in part because
they contained “extremely small numbers” and few breeding pairs. 3-ER-411; 3-
ER-415; 3-ER-418. And because these wolves represent the expanding edge of the
stable Northern Rocky Mountain population, the Service determined that the small
numbers of wolves “do not contribute meaningfully to the ability of any population
to withstand stochastic events,” or to the entity’s “ability to withstand catastrophic
events.” 3-ER-411; 3-ER-415. These decisions—which rested on many pages of
46
analysis in the Rule itself and hundreds of pages of analysis elsewhere in the
administrative record—were reasonable and reasonably explained. See Lotus
Vaping, 73 F.4th at 668.
The district court nonetheless faulted the Service’s analysis for two reasons:
(1) it did not provide “objective guideposts” by which the district court could assess
the agency’s analysis, 1-ER-20, and (2) in the court’s view, the Service did not offer
enough explanation of its standard, 1-ER-20–21. Neither criticism establishes that
the Service’s analysis was unreasonable or otherwise arbitrary and capricious.
First, the ESA does not require the Service to establish objective guideposts
for determining what portions of a species’ range are significant. If such a bright-
line approach were what Congress intended, it could have either established one in
the statute or required the Service to establish one. See City of Arlington v. Fed.
Commc’ns Comm’n, 569 U.S. 290, 296 (2013) (“Congress knows to speak in plain
terms when it wishes to circumscribe, and in capacious terms when it wishes to
enlarge, agency discretion.”); Trump v. Hawaii, 585 U.S. 667, 692 (2018) (“When
Congress wishes to condition an exercise of executive authority on the President’s
finding of an exigency or crisis, it knows how to say just that.”). Instead, Congress
used the open-ended term “significant,” recognizing that factors like “the percentage
of habitat loss that will render a species in danger of extinction or threatened with
47
extinction” will depend on the particular species and the interplay of other factors.
Defs. of Wildlife, 258 F.3d at 1143; see supra pp. 41–45.
This Court has rejected similar attempts to impose quantifiable, bright-line
standards—which the governing statute does not require—as a measuring stick for
agency action. For example, this Court reversed a district court’s conclusion that it
could not adequately assess an agency’s qualitative analysis, including terms like
“low” or “very low,” without a quantitative standard. Ranchers Cattlemen Action
Legal Fund United Stockgrowers of Am. v. U.S. Dep’t of Agric., 415 F.3d 1078, 1091
(9th Cir. 2005). In reversing, this Court noted that the governing statute did not
require the agency to quantify its assessment, id. at 1097, and it reiterated that “courts
should not upset agency decisions, even those announced with ‘less than ideal
clarity,’ if ‘the agency’s path may reasonably be discerned,” id. (quoting Alaska
Dep’t of Env’t Conservation v. Env’t Prot. Agency, 540 U.S. 461, 496 (2004)).
Similarly, this Court rejected the argument that the National Marine Fisheries
Service needed to adopt a quantitative or objective standard for determining
“significant” under the Marine Mammal Protection Act, 16 U.S.C. § 1389(b)(1).
Humane Soc’y of the U.S. v. Pritzker, 548 F. App’x 355, 358 (9th Cir. 2013). As
non-scientists, courts should decline to create or impose bright-line rules on expert
agencies as a way to interrogate an agency’s scientific determination under
purposefully broad statutory language. See The Lands Council v. McNair, 537 F.3d
48
981, 993–94 (9th Cir. 2008), overruled in part on other grounds by Winter v. Nat.
Res. Def. Council, 555 U.S. 7 (2008).
Nor do courts require objective guideposts to determine whether an agency
has acted arbitrarily or capriciously under the APA. The district court
underestimated its ability to conduct a proper APA review—reading the statute and
the agency’s decision and discerning whether the agency applied the relevant factors
and satisfactorily explained its conclusions. Lotus Vaping, 73 F.4th at 668. In fact,
other courts have judged the Service’s listing and delisting determinations under the
same understanding of “significant” as in this Rule without requiring an objective
threshold. See, e.g., Defs. of Wildlife, 849 F.3d at 1093 (“The Service has offered
ample rationale for determining that the predator area was never ‘envisioned to
meaningfully contribute to wolf recovery in the region’ and is thus not a ‘significant
portion of its range’” (emphasis added)); W. Watersheds Project v. Ashe, 948 F.
Supp. 2d 1166, 1184–89 (D. Idaho 2013) (upholding significant-portion-of-its-range
analysis that similarly evaluated whether a portion of the range contributed
meaningfully to the representation, resiliency, or redundancy of the species). There
is no reason to impose a new, atextual requirement here. Cf. Lands Council, 537
F.3d at 993 (courts may not impose procedural requirements not explicitly
enumerated in the relevant statute).
49
Second, the Service adequately explained both its understanding of
significance and its application of that standard in the Rule. To start, the Service did
not create the concept of “resiliency, redundancy, or representation” (“the three Rs”)
in this Rule. That concept is based on peer-reviewed scientific literature, and the
Service has applied the same or similar principles in other listing determinations. 3-
ER-568–70. Nor did the Service merely repeat the phrase without explaining what
it meant. On a broad level, the Service explained that “[t]o sustain populations over
time, a species must have a sufficient number and distribution of healthy populations
to withstand annual variation in its environment (resiliency), novel changes in its
biological and physical environment (representation), and catastrophes
(redundancy).” 3-ER-406 (citing 3-ER-587; 3-ER-590; 3-ER-568). And specific to
this Rule, the Service elaborated that the gray wolf recovery criteria align with the
“conservation biology principles of representation (conserving the adaptive diversity
of a taxon), resiliency (ability to withstand demographic and environmental
variation), and redundancy (sufficient populations to provide a margin of safety).”
3-ER-317.
The Service then reasonably explained how it applied those concepts. In
evaluating resiliency, for example, the Service observed that wolves quickly
reproduce and have adequate genetic diversity. 3-ER-412 (“Those factors provide
resiliency in the face of stochastic variability (annual environmental fluctuations,
50
periodic disturbances, and impacts of anthropogenic stressors).”). The Service also
defined “representation” as “the ability of a species to adapt to changing
environmental conditions over time,” 3-ER-380, and explained that the “[l]ife-
history characteristics of the wolf, including high dispersal capability and
adaptability, along with the high genetic diversity . . . provides sufficient adaptive
capacity such that their long-term survival is assured.” 3-ER-412. For redundancy,
the Service evaluated the number of wolves in the portion of the range and asked
whether, without that portion, catastrophic events would impact the long-term
survival of the species. 3-ER-411.
Despite this analysis, the district court questioned the Service’s conclusion
that portions of the wolf’s peripheral range are not significant because they do not
meaningfully contribute to the representation, resiliency, or redundancy of the listed
44-state entity. 1-ER-20–21. In the court’s view, this conclusion conflicted with the
Service’s recognition that peripheral wolves in the central Rocky Mountains and
West Coast states could still add to the resiliency, redundancy, and representation of
the species. 1-ER-21.
The court misunderstood the Service’s analysis. Although the Service
recognized that these expanding portions of the range contribute to the viability of
the species overall, it also determined that wolves in those portions were not
biologically meaningful to any of the entities’ resiliency, redundancy, or
51
representation. 3-ER-410–19. For the West Coast, the Service concluded that those
portions were not significant to the listed 44-state entity under “any reasonable
definition” of the term because there were few wolves in those areas and they
descended from the recovered Northern Rocky Mountain metapopulation. 3-ER-
411. And portions peripheral to the Great Lakes population that contain lone
dispersing wolves were also not significant because those wolves do not contribute
to the overall demographic or genetic diversity of the population, and they are not
genetically or ecologically unique. 3-ER-410. As discussed above (pp. 45–47),
those determinations are rational, adequately explained, and well within the bounds
of the Service’s mandate to determine which species are threatened or endangered.
To conclude otherwise would effectively penalize the Service for ensuring the
species’ success beyond what is required for recovery under the ESA.
III. The district court improperly substituted its understanding of the

genetics of Western wolves for that of the Service.
On issues of fact, a reviewing court may not “substitute its judgment for that
of the agency.” Protect Our Cmtys. Found. v. Jewell, 825 F.3d 571, 583 (9th Cir.
2016). A court also must “be at its most deferential” when reviewing scientific
determinations within the agency’s area of expertise. San Luis & Delta-Mendota
Water Auth. v. Jewell, 747 F.3d 581, 602 (9th Cir. 2014) (citation omitted); accord
Trout Unlimited v. Lohn, 559 F.3d 946, 958 (9th Cir. 2009) (“Where scientific and
technical expertise is necessarily involved . . . a reviewing court must be highly
52
deferential to the judgment of the agency.” (citation omitted)). Applying these
principles to a challenge to the Service’s genetic analysis of gray squirrels, this Court
emphasized that “we must defer to the agency’s interpretation of complex scientific
data.” Nw. Ecosystem All., 475 F.3d at 1150.
The district court acknowledged these fundamental principles, 1-ER-9, but
failed to follow them. Based on its own reading of the best available science, the
court held that the Service arbitrarily concluded that wolves in the West Coast states
(Washington, Oregon, and California) descended from, and are not genetically
distinct from, Northern Rocky Mountain wolves. 1-ER-16–17. The court suggested
that the Service overlooked findings “indicating that [West Coast] wolves have
distinct genetic traits that could distinguish them from N[orthern] R[ocky]
M[ountain] wolves.” 1-ER-17. But the Service correctly interpreted those studies,
and the record supports its scientific judgment that West Coast wolves are not
genetically distinct from Northern Rocky Mountain wolves.
By the time of the Rule, the Service recognized that the Northern Rocky
Mountain population of wolves “has continued to expand and wolves from that
population have now dispersed and become established in parts of the West Coast
States.” 3-ER-310; 3-ER-313; 3-ER-381. Analyzing several studies, the Service
concluded that gray wolves in Oregon descended from Northern Rocky Mountain
wolves and then expanded into California. 3-ER-310. Likewise, wolves in
53
Washington descended from Northern Rocky Mountain wolves and Canadian
wolves. 3-ER-310. Based on this and other evidence, the Service concluded that
the colonizing wolves in the West Coast states are a western expansion of the
Northern Rocky Mountain population, not a genetically separate population of
wolves protectable as its own species (i.e., as a DPS). 3-ER-310; 3-ER-369; 3-ER-
381.
The record supports this conclusion. For instance, a 2018 study by Sarah
Hendricks and others concluded that all Oregon wolves contained genes from
Northern Rocky Mountain dispersers. 3-ER-487 (“We find that OR individuals are
of NRM ancestry only”). Wolves in California descended from these Oregon wolves
and thus also contained genes from the original Northern Rocky Mountain wolves.
3-ER-474. And although wolves in Washington “have more complex ancestry,” the
authors ultimately concluded that “[t]he P[acific] N[orth] W[est] likely represents
an admixture zone between distinct ecotypes” of coastal and inland wolves. 3-ER-
487. These results demonstrate the species’ ability to disperse, inhabit, breed, and
survive in various habitats. 3-ER-381.
The district court faulted the Service for its conclusion about Washington
wolves. 1-ER-16. It pointed to the Hendricks study’s suggestion that the addition
of coastal Canadian genes “may enhance adaptation to coastal habitats and enable
persistence of wolf populations along the coastal areas.” 3-ER-560; 1-ER-16. And
54
it highlighted the authors’ view that “packs with a dominant coastal ancestry should
be considered a priority for conservation” because of “their unique evolutionary
heritage and adaptations.”9 1-ER-16 (citing 3-ER-560) (emphasis added). Based on
this sentence, the court concluded that the Service failed to “thoughtful[ly]” engage
with this allegedly conflicting data. 1-ER-17.
But, contrary to the district court’s ruling, the Service considered and
thoughtfully explained its views on this subject. 3-ER-381. It noted that of the
wolves Hendricks sampled from Washington and Oregon, just two individuals (both
from Washington) possessed “mitochondrial DNA haplotypes only known from
wolf populations in coastal British Columbia.” 3-ER-381. And only one of those
two wolves resided in part of the 44-state entity. 3-ER-381. The other wolf resided
within the boundary of the delisted Northern Rocky Mountain DPS. 3-ER-381.
The Service also recognized nuclear DNA analysis results showing that three
wolves sampled from Washington fell “intermediate between [Northern Rocky
Mountain] wolves and coastal wolves, indicating that Washington was an admixture
zone.” 3-ER-381. Given this evidence, the agency ultimately concluded that these
wolves “originate[d] primarily from the interior forest ecotype,” not the coastal
ecotype highlighted by the district court. 3-ER-381; cf. 1-ER-16; 3-ER-560.
9
The district court cited page 3-ER-560, which appears to be identical to page
3-ER-488 in the study cited in the Rule. The court also cited to the same sentence
that appeared in another article by the same author. 3-ER-543.
55
Put another way, even if Hendrick’s (and the district court’s) policy views
about the prioritization of wolf conservation are creditable,10 the Service scrutinized
the genetic makeup of West Coast wolves and concluded that there were no packs
with dominant coastal ancestry. See 3-ER-381. The district court’s “difference of
opinion” about how to interpret the studies “does not warrant a contrary conclusion.”
Ctr. for Biological Diversity, 900 F.3d at 1074. “When specialists express
conflicting views, an agency must have discretion to rely on the reasonable opinions
of its own qualified experts even if, as an original matter, a court might find contrary
views more persuasive.” Marsh, 490 U.S. at 378; accord Trout Unlimited, 559 F.3d
at 959.
The district court inferred that the Service’s scientific decision about the
genetic history of West Coast wolves meant that the Service did not analyze any
threats to those wolves. 1-ER-15–17. Not so. As explained in the Rule, the Service
analyzed threats to wolves inhabiting the Pacific coast in the lower United States,
see supra pp. 28–32, and found that gray wolves are not in danger of extinction or
likely to become so in the foreseeable future. 3-ER-381. Indeed, the Service
evaluated these wolves under all three configurations: West Coast wolves were
10
Contrary to the district court’s suggestion, an article’s conclusion that
certain wolves should be considered for conservation does not mean that these
wolves are threatened or endangered under the ESA.
56
included as part of the separate listed 44-state entity, combined with the Minnesota
entity, and part of the lower 48-state entity. See supra p. 18.
In short, the Service provided a reasoned explanation for its conclusion that
West Coast wolves are not genetically distinct. In fact, the agency specifically
addressed the data about coastal wolves, and explained how it resolved that issue in
a reasonable manner. “Because the Service has articulated reasoned connections
between the record and its conclusion, its genetic analysis was not arbitrary or
capricious.” Nw. Ecosystem All., 475 F.3d at 1150.
IV. The Service rationally concluded that regulatory mechanisms were

adequate.
The ESA’s five-factor framework requires the Service to assess the overall
effect certain stressors have on a species now and in the foreseeable future. 16
U.S.C. § 1533(a)(1). Because these stressors can be ameliorated or exacerbated by
existing regulatory mechanisms or conservation efforts, the Service considers those
regimes in its analysis. Id. § 1533(a)(1)(D). The Service ultimately concluded that
state and Tribal regulatory mechanisms would sufficiently ameliorate the threat of
human-caused mortality to gray wolves post-delisting (after which management of
the species would return to the states). 3-ER-347–369. The district court upheld
that conclusion, determining that the Service rationally concluded that existing state
mechanisms would “provide adequate protection for the gray wolf.” 1-ER-23–26.
57
Despite the Service’s extensive analysis of state and Tribal regulatory
mechanisms, the district court held that the Service should have more thoroughly
examined whether federal mechanisms would also protect wolves after delisting. 1-
ER-26. In particular, the district court was troubled by the fact that some Forest
Service land management plans in the West Coast “do not contain standards and
guidelines specific to wolf management.” 1-ER-26 (quoting 3-ER-368). The court
also criticized the Service for “not explain[ing] how [federal] mechanisms will
ensure a sustainable wolf population post-delisting.” 1-ER-26. The district court’s
ruling is wrong, both as a legal and factual matter.
The plain language of the ESA requires the Service to consider whether a
species would be imperiled by “the inadequacy of existing regulatory mechanisms”
after delisting. 16 U.S.C. § 1533(a)(1)(D). Nowhere does the Act state that the
Service must consider whether other, non-existent regulatory mechanisms would
offer better or additional protection for the species. The Service must simply decide
whether existing mechanisms are inadequate to address any threats and maintain the
species in a recovered condition. Id.
The Service does not make this decision “in isolation.” Friends of Blackwater
v. Salazar, 691 F.3d 428, 436 (D.C. Cir. 2012). Rather, the Service considers the
adequacy of regulatory mechanisms against the threat that the regulation is designed
to meet. Id. Put simply, a regulation can be “inadequate” only if there is something
58
needing regulation—i.e., an actual threat to the species. “If the adequacy or
‘inadequacy of existing regulat[ion]’ is to be judged without considering the level,
or even the existence, of any threat the regulation is designed to meet, then it would
follow that the Service could never delist a species unless some regulatory
mechanism was in place to protect it—whether needed or not.” Id.
Humans are the primary threat to wolves. 3-ER-347. The Service therefore
extensively evaluated state hunting regulations and other state and Tribal protections
in place at the time of its review that were intended to ameliorate the threat of human-
caused mortality. 3-ER-347–69. Those laws and regulations would also apply to
gray wolves on federal lands in those states after delisting, as states are the main
regulators of hunting on most federal land. See, e.g., 3-ER-351; 3-ER-367. Thus,
the Service’s conclusion that state regulatory mechanisms are adequate to protect
wolves post-delisting applies with equal force to wolves on federal lands.
Indeed, the Service recognized that various land management agencies “will
provide protections to wolves in the areas they manage that will match, and in some
cases exceed, the protections provided by State wolf-management plans and State
regulations.” 3-ER-369. For example, hunting is prohibited on national park and
wildlife refuge land, and many national forests intentionally protect wolf den sites
and rendezvous sites, and carefully manage road densities in existing and potential
wolf habitat. 3-ER-367; see also 3-ER-368 (noting that management plans for
59
wolves in West Coast states similarly “provide for the conservation of natural and
cultural resources and wildlife” and “the gray wolf and its habitat are expected to
persist on these lands once federally delisted”).
The district court overlooked that important context and instead focused on
the Service’s observation that some land management plans in the West “do not
contain standards and guidelines specific to wolf management.” 1-ER-26. But there
is nothing in the record suggesting that any specific standards or guidelines were
needed to address a particular threat to wolves in those areas at the time of the Rule.
3-ER-368. And, again, the relevant question under the ESA is whether the existing
regulations are inadequate, not whether they are the best or most protective.
The district court also reprimanded the Service for not explaining how federal
land management agencies (the Forest Service and Bureau of Land Management)
“will ensure a sustainable wolf population post-delisting.” 1-ER-26. But the Service
included that explanation in the Rule. 3-ER-368. For example, it explained that,
once delisted, the gray wolf will be considered a “sensitive species” under existing
federal regulations for at least five years. 3-ER-368. Federal agencies implement
special measures to conserve sensitive species and their habitats, “to promote their
conservation and minimize the likelihood and need for [ESA] listing.” 3-ER-368.
That means, the Service explained, that federal agencies will consider “conservation
objectives for the gray wolf and its habitat” during the planning and implementation
60
of all projects on those lands. 3-ER-368. As a result, the Service rationally
concluded that, together with state and Tribal regulatory mechanisms, existing
federal mechanisms were adequate to ensure the long-term, recovered status of
wolves. 3-ER-368–69. The Court should respect that decision.
CONCLUSION
For these reasons, the district court’s judgment should be reversed.
Respectfully submitted,
s/ Amelia G. Yowell
TODD KIM
Assistant Attorney General
JOAN M. PEPIN
MICHAEL R. EITEL
Of Counsel: ASTRID CEVALLOS
AMELIA G. YOWELL
KRISTEN BYRNES FLOOM Attorneys
Attorney Environment and Natural Resources Division
U.S. Department of the Interior U.S. Department of Justice
Office of the Solicitor Post Office Box 7415
Washington, D.C. 20044
(202) 514-5580
[email protected]
September 13, 2024

90-8-6-08427
61
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22-15537, 22-15626, 22-15627, 22-15628
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Signature s/ Amelia G. Yowell
Date SEPTEMBER 13, 2024

ADDENDUM
Administrative Procedure Act
5 U.S.C. § 706......................................................................................... Add-1
Endangered Species Act
16 U.S.C. § 1531..................................................................................... Add-2
16 U.S.C. § 1532..................................................................................... Add-5
16 U.S.C. § 1533..................................................................................... Add-7
50 C.F.R. § 424.11 (2019) .............................................................................. Add-13

Add-1
Add-2
§ 1531 TITLE 16—CONSERVATION Page 1906
(3) these species of fish, wildlife, and plants ter. For complete classification of this Act to the Code,
are of esthetic, ecological, educational, histor- see Short Title note set out below and Tables.
ical, recreational, and scientific value to the AMENDMENTS
Nation and its people;
1988—Subsec. (a)(4)(G). Pub. L. 100–478 substituted
(4) the United States has pledged itself as a ‘‘; and’’ for period at end.
sovereign state in the international commu- 1982—Subsec. (c). Pub. L. 97–304 designated existing
nity to conserve to the extent practicable the provisions as par. (1) and added par. (2).
various species of fish or wildlife and plants 1979—Subsec. (a)(5). Pub. L. 96–159 substituted ‘‘wild-
facing extinction, pursuant to— life, and plants’’ for ‘‘wildlife’’.
(A) migratory bird treaties with Canada
and Mexico; Statutory Notes and Related Subsidiaries
(B) the Migratory and Endangered Bird EFFECTIVE DATE
Treaty with Japan;
Pub. L. 93–205, § 16, Dec. 28, 1973, 87 Stat. 903, provided
(C) the Convention on Nature Protection that: ‘‘This Act [enacting this chapter, amending sec-
and Wildlife Preservation in the Western tions 460k–1, 460l–9, 668dd, 715i, 715s, 1362, 1371, 1372, and
Hemisphere; 1402 of this title and section 136 of Title 7, Agriculture,
(D) the International Convention for the repealing sections 668aa to 668cc–6 of this title, and en-
Northwest Atlantic Fisheries; acting provisions set out as notes under this section]
(E) the International Convention for the shall take effect on the date of its enactment [Dec. 28,
High Seas Fisheries of the North Pacific 1973].’’
Ocean; SHORT TITLE OF 1982 AMENDMENT
(F) the Convention on International Trade Pub. L. 97–304, § 1, Oct. 13, 1982, 96 Stat. 1411, provided:
in Endangered Species of Wild Fauna and ‘‘That this Act [amending this section and sections
Flora; and 1532, 1533, 1535, 1536, 1537a, 1538, 1539, 1540, and 1542 of
(G) other international agreements; and this title and enacting provisions set out as notes
under sections 1533, 1537a, and 1539 of this title] may be
(5) encouraging the States and other inter- cited as the ‘Endangered Species Act Amendments of
ested parties, through Federal financial assist- 1982’.’’
ance and a system of incentives, to develop
and maintain conservation programs which SHORT TITLE OF 1978 AMENDMENT
meet national and international standards is a Pub. L. 95–632, § 1, Nov. 10, 1978, 92 Stat. 3751, provided:
key to meeting the Nation’s international ‘‘That this Act [amending sections 1532 to 1536, 1538 to
commitments and to better safeguarding, for 1540, and 1542 of this title] may be cited as the ‘Endan-
the benefit of all citizens, the Nation’s herit- gered Species Act Amendments of 1978’.’’
age in fish, wildlife, and plants. SHORT TITLE
(b) Purposes Pub. L. 93–205, § 1, Dec. 28, 1973, 87 Stat. 884, provided:
The purposes of this chapter are to provide a ‘‘That this Act [enacting this chapter, amending sec-
tions 460k–1, 460l–9, 668dd, 715i, 715s, 1362, 1371, 1372, and
means whereby the ecosystems upon which en- 1402 of this title and section 136 of Title 7, Agriculture,
dangered species and threatened species depend repealing sections 668aa to 668cc–6 of this title, and en-
may be conserved, to provide a program for the acting provisions set out as notes under this section]
conservation of such endangered species and may be cited as the ‘Endangered Species Act of 1973’.’’
threatened species, and to take such steps as
WILDLIFE MANAGEMENT AND WORKING LANDS FOR
may be appropriate to achieve the purposes of WILDLIFE CONSERVATION MODEL
the treaties and conventions set forth in sub-
section (a) of this section. Pub. L. 115–334, title II, § 2407, Dec. 20, 2018, 132 Stat.
4573, provided that:
(c) Policy ‘‘(a) IN GENERAL.—The Secretary [of Agriculture] and
(1) It is further declared to be the policy of the Secretary of the Interior shall continue to carry
Congress that all Federal departments and agen- out the Working Lands for Wildlife model of conserva-
tion on working landscapes, as implemented on the day
cies shall seek to conserve endangered species before the date of enactment of this Act [Dec. 20, 2018],
and threatened species and shall utilize their au- in accordance with—
thorities in furtherance of the purposes of this ‘‘(1) the document entitled ‘Partnership Agreement
chapter. Between the United States Department of Agri-
(2) It is further declared to be the policy of culture Natural Resources Conservation Service and
Congress that Federal agencies shall cooperate the United States Department of the Interior Fish
with State and local agencies to resolve water and Wildlife Service’, numbered A–3A7516–937, and
resource issues in concert with conservation of formalized by the Chief of the Natural Resources Con-
servation Service on September 15, 2016, and by the
endangered species.
Director of the United States Fish and Wildlife Serv-
(Pub. L. 93–205, § 2, Dec. 28, 1973, 87 Stat. 884; Pub. ice on August 4, 2016, as in effect on September 15,
L. 96–159, § 1, Dec. 28, 1979, 93 Stat. 1225; Pub. L. 2016; and
97–304, § 9(a), Oct. 13, 1982, 96 Stat. 1426; Pub. L. ‘‘(2) United States Fish and Wildlife Service Direc-
tor’s Order No. 217, dated August 9, 2016, as in effect
100–478, title I, § 1013(a), Oct. 7, 1988, 102 Stat.
on August 9, 2016.
2315.) ‘‘(b) EXPANSION OF MODEL.—The Secretary and the
Secretary of the Interior may expand the conservation
Editorial Notes model described in subsection (a) through a new part-
nership agreement between the Farm Service Agency
REFERENCES IN TEXT
and the United States Fish and Wildlife Service for the
This chapter, referred to in subsecs. (b) and (c)(1), was purpose of carrying out conservation activities for spe-
in the original ‘‘this Act’’, meaning Pub. L. 93–205, Dec. cies conservation.
28, 1973, 81 Stat. 884, known as the Endangered Species ‘‘(c) EXTENSION OF PERIOD OF REGULATORY PREDICT-
Act of 1973, which is classified principally to this chap- ABILITY.—
Add-3
Page 1907 TITLE 16—CONSERVATION § 1531
‘‘(1) DEFINITION OF PERIOD OF REGULATORY PREDICT- activities when requested by foreign nations experi-
ABILITY.—In this subsection, the term ‘period of regu- encing trafficking of protected wildlife;
latory predictability’ means the period of regulatory (b) the United States shall promote and encourage
predictability under the Endangered Species Act of the development and enforcement by foreign nations of
1973 (16 U.S.C. 1531 et seq.) initially determined in ac- effective laws to prohibit the illegal taking of, and
cordance with the document and order described in trade in, these species and to prosecute those who en-
paragraphs (1) and (2), respectively, of subsection (a). gage in wildlife trafficking, including by building ca-
‘‘(2) EXTENSION.—After the period of regulatory pre- pacity;
dictability, on request of the Secretary, the Sec- (c) in concert with the international community and
retary of the Interior, acting through the Director of partner organizations, the United States shall seek to
the United States Fish and Wildlife Service, may pro- combat wildlife trafficking; and
vide additional consultation under section 7(a)(2) of (d) the United States shall seek to reduce the demand
the Endangered Species Act of 1973 (16 U.S.C. for illegally traded wildlife, both at home and abroad,
1536(a)(2)), or additional conference under section while allowing legal and legitimate commerce involv-
7(a)(4) of that Act (16 U.S.C. 1536(a)(4)), as applicable, ing wildlife.
with the Chief of the Natural Resources Conservation SEC. 2. Establishment. There is established a Presi-
Service or the Administrator of the Farm Service dential Task Force on Wildlife Trafficking (Task
Agency, as applicable, to extend the period of regu- Force), to be co-chaired by the Secretary of State, Sec-
latory predictability.’’ retary of the Interior, and the Attorney General (Co-
Chairs), or their designees, who shall report to the
RELATIONSHIP TO ENDANGERED SPECIES ACT OF 1973 President through the National Security Advisor. The
Pub. L. 102–251, title III, § 305, Mar. 9, 1992, 106 Stat. 66, Task Force shall develop and implement a National
as amended by Pub. L. 104–208, div. A, title I, § 101(a) Strategy for Combating Wildlife Trafficking in accord-
[title II, § 211(b)], Sept. 30, 1996, 110 Stat. 3009, 3009–41, ance with the objectives outlined in section 1 of this
provided that: ‘‘The special areas defined in section order, consistent with section 4 of this order.
3(24) of the Magnuson-Stevens Fishery Conservation SEC. 3. Membership. (a) In addition to the Co-Chairs,
and Management Act (16 U.S.C. 1802(24)) shall be con- the Task Force shall include designated senior-level
sidered places that are subject to the jurisdiction of the representatives from:
United States for the purposes of the Endangered Spe- (i) the Department of the Treasury;
cies Act of 1973 (16 U.S.C. 1531 et seq.).’’ (ii) the Department of Defense;
(iii) the Department of Agriculture;
Executive Documents (iv) the Department of Commerce;
(v) the Department of Transportation;
MINIMIZATION OF CONFLICTS WITH RECREATIONAL (vi) the Department of Homeland Security;
FISHERIES (vii) the United States Agency for International De-
velopment;
For provision that all Federal agencies minimize con- (viii) the Office of the Director of National Intel-
flicts between recreational fisheries and administration ligence;
of this chapter, see Ex. Ord. No. 12962, § 4, June 7, 1995, (ix) the National Security Staff;
60 F.R. 30770, set out as a note under section 1801 of this (x) the Domestic Policy Council;
title. (xi) the Council on Environmental Quality;
EX. ORD. NO. 13648. COMBATING WILDLIFE TRAFFICKING (xii) the Office of Science and Technology Policy;
(xiii) the Office of Management and Budget;
Ex. Ord. No. 13648, July 1, 2013, 78 F.R. 40621, provided: (xiv) the Office of the United States Trade Represent-
By the authority vested in me as President by the ative; and
Constitution and the laws of the United States of (xv) such agencies and offices as the Co-Chairs may,
America, and in order to address the significant effects from time to time, designate.
of wildlife trafficking on the national interests of the (b) The Task Force shall meet not later than 60 days
United States, I hereby order as follows: from the date of this order and periodically thereafter.
SECTION 1. Policy. The poaching of protected species SEC. 4. Functions. Consistent with the authorities and
and the illegal trade in wildlife and their derivative responsibilities of member agencies, the Task Force
parts and products (together known as ‘‘wildlife traf- shall perform the following functions:
ficking’’) represent an international crisis that con- (a) not later than 180 days after the date of this order,
tinues to escalate. Poaching operations have expanded produce a National Strategy for Combating Wildlife
beyond small-scale, opportunistic actions to coordi- Trafficking that shall include consideration of issues
nated slaughter commissioned by armed and organized relating to combating trafficking and curbing con-
criminal syndicates. The survival of protected wildlife sumer demand, including:
species such as elephants, rhinos, great apes, tigers, (i) effective support for anti-poaching activities;
sharks, tuna, and turtles has beneficial economic, so- (ii) coordinating regional law enforcement efforts;
cial, and environmental impacts that are important to (iii)developing and supporting effective legal enforce-
all nations. Wildlife trafficking reduces those benefits ment mechanisms; and
while generating billions of dollars in illicit revenues (iv) developing strategies to reduce illicit trade and
each year, contributing to the illegal economy, fueling reduce consumer demand for trade in protected species;
instability, and undermining security. Also, the pre- (b) not later than 90 days from the date of this order,
vention of trafficking of live animals helps us control review the Strategy to Combat Transnational Orga-
the spread of emerging infectious diseases. For these nized Crime of July 19, 2011, and, if appropriate, make
reasons, it is in the national interest of the United recommendations regarding the inclusion of crime re-
States to combat wildlife trafficking. lated to wildlife trafficking as an implementation ele-
In order to enhance domestic efforts to combat wild- ment for the Federal Government’s transnational orga-
life trafficking, to assist foreign nations in building ca- nized crime strategy;
pacity to combat wildlife trafficking, and to assist in (c) coordinate efforts among and consult with agen-
combating transnational organized crime, executive de- cies, as appropriate and consistent with the Depart-
partments and agencies (agencies) shall take all appro- ment of State’s foreign affairs role, regarding work
priate actions within their authority, including the with foreign nations and international bodies that
promulgation of rules and regulations and the provi- monitor and aid in enforcement against crime related
sion of technical and financial assistance, to combat to wildlife trafficking; and
wildlife trafficking in accordance with the following (d) carry out other functions necessary to implement
objectives: this order.
(a) in appropriate cases, the United States shall seek SEC. 5. Advisory Council on Wildlife Trafficking. Not
to assist those governments in anti-wildlife trafficking later than 180 days from the date of this order, the Sec-
Add-4
retary of the Interior (Secretary), in consultation with longer necessary. Such methods and proce-
the other Co-Chairs of the Task Force, shall establish dures include, but are not limited to, all ac-
an Advisory Council on Wildlife Trafficking (Advisory tivities associated with scientific resources
Council) that shall make recommendations to the Task
management such as research, census, law en-
Force and provide it with ongoing advice and assist-
ance. The Advisory Council shall have eight members,
forcement, habitat acquisition and mainte-
one of whom shall be designated by the Secretary as nance, propagation, live trapping, and trans-
the Chair. Members shall not be employees of the Fed- plantation, and, in the extraordinary case
eral Government and shall include knowledgeable indi- where population pressures within a given eco-
viduals from the private sector, former governmental system cannot be otherwise relieved, may in-
officials, representatives of nongovernmental organiza- clude regulated taking.
tions, and others who are in a position to provide ex- (4) The term ‘‘Convention’’ means the Con-
pertise and support to the Task Force. vention on International Trade in Endangered
SEC. 6. General Provisions. (a) This order shall be im- Species of Wild Fauna and Flora, signed on
plemented consistent with applicable domestic and
March 3, 1973, and the appendices thereto.
international law, and subject to the availability of ap-
propriations.
(5)(A) The term ‘‘critical habitat’’ for a
(b) Nothing in this order shall be construed to impair threatened or endangered species means—
or otherwise affect: (i) the specific areas within the geo-
(i) the authority granted by law to an executive de- graphical area occupied by the species, at
partment, agency, or the head thereof, or the status of the time it is listed in accordance with the
that department or agency within the Federal Govern- provisions of section 1533 of this title, on
ment; or which are found those physical or biological
(ii) the functions of the Director of the Office of Man- features (I) essential to the conservation of
agement and Budget relating to budgetary, administra- the species and (II) which may require spe-
tive, or legislative proposals. cial management considerations or protec-
(c) This order is not intended to, and does not, create
any right or benefit, substantive or procedural, enforce-
tion; and
able at law or in equity by any party against the (ii) specific areas outside the geographical
United States, its departments, agencies, or entities, area occupied by the species at the time it is
its officers, employees, or agents, or any other person. listed in accordance with the provisions of
(d) Insofar as the Federal Advisory Committee Act, section 1533 of this title, upon a determina-
as amended ([former] 5 U.S.C. App.) [see 5 U.S.C. 1001 et tion by the Secretary that such areas are es-
seq.] (the ‘‘Act’’), may apply to the Advisory Council, sential for the conservation of the species.
any functions of the President under the Act, except
for that of reporting to the Congress, shall be per- (B) Critical habitat may be established for
formed by the Secretary in accordance with the guide- those species now listed as threatened or en-
lines issued by the Administrator of General Services. dangered species for which no critical habitat
(e) The Department of the Interior shall provide fund- has heretofore been established as set forth in
ing and administrative support for the Task Force and subparagraph (A) of this paragraph.
Advisory Council to the extent permitted by law and (C) Except in those circumstances deter-
consistent with existing appropriations. mined by the Secretary, critical habitat shall
BARACK OBAMA. not include the entire geographical area which
[Reference to the National Security Staff to be un- can be occupied by the threatened or endan-
derstood to refer to the staff of the National Security gered species.
Council, see Ex. Ord. No. 13657, set out as a note under (6) The term ‘‘endangered species’’ means
section 3021 of Title 50, War and National Defense.]
any species which is in danger of extinction
EXTENSION OF TERM OF ADVISORY COUNCIL ON WILDLIFE throughout all or a significant portion of its
TRAFFICKING range other than a species of the Class Insecta
Term of Advisory Council on Wildlife Trafficking ex- determined by the Secretary to constitute a
tended until Sept. 30, 2017, by Ex. Ord. No. 13708, Sept. pest whose protection under the provisions of
30, 2015, 80 F.R. 60271, formerly set out as a note under this chapter would present an overwhelming
section 1013 of Title 5, Government Organization and and overriding risk to man.
Employees. (7) The term ‘‘Federal agency’’ means any
department, agency, or instrumentality of the
§ 1532. Definitions United States.
For the purposes of this chapter— (8) The term ‘‘fish or wildlife’’ means any
(1) The term ‘‘alternative courses of action’’ member of the animal kingdom, including
means all alternatives and thus is not limited without limitation any mammal, fish, bird (in-
cluding any migratory, nonmigratory, or en-
to original project objectives and agency juris-
dangered bird for which protection is also af-
diction.
forded by treaty or other international agree-
(2) The term ‘‘commercial activity’’ means
ment), amphibian, reptile, mollusk, crusta-
all activities of industry and trade, including,
cean, arthropod or other invertebrate, and in-
but not limited to, the buying or selling of
cludes any part, product, egg, or offspring
commodities and activities conducted for the
thereof, or the dead body or parts thereof.
purpose of facilitating such buying and sell- (9) The term ‘‘foreign commerce’’ includes,
ing: Provided, however, That it does not include among other things, any transaction—
exhibition of commodities by museums or (A) between persons within one foreign
similar cultural or historical organizations. country;
(3) The terms ‘‘conserve’’, ‘‘conserving’’, and (B) between persons in two or more foreign
‘‘conservation’’ mean to use and the use of all countries;
methods and procedures which are necessary (C) between a person within the United
to bring any endangered species or threatened States and a person in a foreign country; or
species to the point at which the measures (D) between persons within the United
provided pursuant to this chapter are no States, where the fish and wildlife in ques-
Add-5
tion are moving in any country or countries (Pub. L. 93–205, § 3, Dec. 28, 1973, 87 Stat. 885; Pub.
outside the United States. L. 94–359, § 5, July 12, 1976, 90 Stat. 913; Pub. L.
(10) The term ‘‘import’’ means to land on, 95–632, § 2, Nov. 10, 1978, 92 Stat. 3751; Pub. L.
bring into, or introduce into, or attempt to 96–159, § 2, Dec. 28, 1979, 93 Stat. 1225; Pub. L.
land on, bring into, or introduce into, any 97–304, § 4(b), Oct. 13, 1982, 96 Stat. 1420; Pub. L.
place subject to the jurisdiction of the United 100–478, title I, § 1001, Oct. 7, 1988, 102 Stat. 2306.)
States, whether or not such landing, bringing,
Editorial Notes
or introduction constitutes an importation
within the meaning of the customs laws of the REFERENCES IN TEXT
United States. This chapter, referred to in text, was in the original
(11) Repealed. Pub. L. 97–304, § 4(b), Oct. 13, ‘‘this Act’’, meaning Pub. L. 93–205, Dec. 28, 1973, 81
1982, 96 Stat. 1420. Stat. 884, known as the Endangered Species Act of 1973,
(12) The term ‘‘permit or license applicant’’ which is classified principally to this chapter. For com-
means, when used with respect to an action of plete classification of this Act to the Code, see Short
a Federal agency for which exemption is Title note set out under section 1531 of this title and
sought under section 1536 of this title, any per- Tables.
son whose application to such agency for a Reorganization Plan Numbered 4 of 1970, referred to
permit or license has been denied primarily in par. (15), is Reorg. Plan No. 4 of 1970, eff. Oct. 3, 1970,
35 F.R. 15627, 84 Stat. 2090, which is set out in the Ap-
because of the application of section 1536(a) of
pendix to Title 5, Government Organization and Em-
this title to such agency action. ployees.
(13) The term ‘‘person’’ means an individual,
corporation, partnership, trust, association, or AMENDMENTS
any other private entity; or any officer, em- 1988—Par. (13). Pub. L. 100–478, § 1001(a), amended par.
ployee, agent, department, or instrumentality (13) generally. Prior to amendment, par. (13) read as
of the Federal Government, of any State, mu- follows: ‘‘The term ‘person’ means an individual, cor-
nicipality, or political subdivision of a State, poration, partnership, trust, association, or any other
or of any foreign government; any State, mu- private entity, or any officer, employee, agent, depart-
nicipality, or political subdivision of a State; ment, or instrumentality of the Federal Government,
or any other entity subject to the jurisdiction of any State or political subdivision thereof, or of any
foreign government.’’
of the United States. Par. (15). Pub. L. 100–478, § 1001(b), inserted ‘‘also’’ be-
(14) The term ‘‘plant’’ means any member of fore ‘‘means the Secretary of Agriculture’’.
the plant kingdom, including seeds, roots and 1982—Par. (11). Pub. L. 97–304 struck out par. (11)
other parts thereof. which defined ‘‘irresolvable conflict’’ as, with respect
(15) The term ‘‘Secretary’’ means, except as to any action authorized, funded, or carried out by a
otherwise herein provided, the Secretary of Federal agency, a set of circumstances under which,
the Interior or the Secretary of Commerce as after consultation as required in section 1536(a) of this
program responsibilities are vested pursuant title, completion of such action would violate section
to the provisions of Reorganization Plan Num- 1536(a)(2) of this title.
1979—Par. (11). Pub. L. 96–159 substituted ‘‘action
bered 4 of 1970; except that with respect to the
would violate section 1536(a)(2) of this title’’ for ‘‘action
enforcement of the provisions of this chapter would (A) jeopardize the continued existence of an en-
and the Convention which pertain to the im- dangered or threatened species, or (B) result in the ad-
portation or exportation of terrestrial plants, verse modification or destruction of a critical habitat’’.
the term also means the Secretary of Agri- 1978—Pars. (1) to (4). Pub. L. 95–632, § 2(1), (7), added
culture. par. (1) and redesignated former pars. (1) to (3) as (2) to
(16) The term ‘‘species’’ includes any sub- (4), respectively. Former par. (4) redesignated (6).
species of fish or wildlife or plants, and any Par. (5). Pub. L. 95–632, § 2(2), (7), added par. (5).
distinct population segment of any species of Former par. (5) redesignated (8).
Par. (6). Pub. L. 95–632, § 2(7), redesignated former par.
vertebrate fish or wildlife which interbreeds (4) as (6). Former par. (6) redesignated (9).
when mature. Par. (7). Pub. L. 95–632, § 2(3), (7), added par. (7).
(17) The term ‘‘State’’ means any of the sev- Former par. (7) redesignated (10).
eral States, the District of Columbia, the Pars. (8) to (10). Pub. L. 95–632, § 2(7), redesignated
Commonwealth of Puerto Rico, American former pars. (5) to (7) as (8) to (10), respectively. Former
Samoa, the Virgin Islands, Guam, and the pars. (8) to (10) redesignated (13) to (15), respectively.
Trust Territory of the Pacific Islands. Pars. (11), (12). Pub. L. 95–632, § 2(4), (7), added pars.
(18) The term ‘‘State agency’’ means any (11) and (12). Former pars. (11) and (12) redesignated (16)
State agency, department, board, commission, and (17), respectively.
Pars. (13) to (15). Pub. L. 95–632, § 2(7), redesignated
or other governmental entity which is respon-
former pars. (8) to (10) as (13) to (15), respectively.
sible for the management and conservation of Former pars. (13) to (15) redesignated as (18) to (20), re-
fish, plant, or wildlife resources within a spectively.
State. Par. (16). Pub. L. 95–632, § 2(5), (7), redesignated former
(19) The term ‘‘take’’ means to harass, harm, par. (11) as (16) and substituted ‘‘and any distinct popu-
pursue, hunt, shoot, wound, kill, trap, capture, lation segment of any species of vertebrate fish or wild-
or collect, or to attempt to engage in any such life which interbreeds when mature’’ for ‘‘and any
conduct. other group of fish or wildlife of the same species or
(20) The term ‘‘threatened species’’ means smaller taxa in common spatial arrangement that
interbreed when mature’’. Former par. (16) redesignated
any species which is likely to become an en-
(21).
dangered species within the foreseeable future Par. (17). Pub. L. 95–632, § 2(7), redesignated former
throughout all or a significant portion of its par. (12) as (17).
range. Par. (18). Pub. L. 95–632, § 2(6), (7), redesignated former
(21) The term ‘‘United States’’, when used in par. (13) as (18) and substituted ‘‘fish, plant, or wildlife’’
a geographical context, includes all States. for ‘‘fish or wildlife’’.
Add-6
Pars. (19) to (21). Pub. L. 95–632, § 2(7), redesignated an endangered species or a threatened species,
pars. (14) to (16) as (19) to (21), respectively. designate any habitat of such species which is
1976—Par. (1). Pub. L. 94–359 inserted ‘‘: Provided,
then considered to be critical habitat; and
however, That it does not include exhibition of com-
modities by museums or similar cultural or historical (ii) may, from time-to-time thereafter as ap-
organizations.’’ after ‘‘facilitating such buying and propriate, revise such designation.
selling’’. (B)(i) The Secretary shall not designate as
critical habitat any lands or other geographical
Executive Documents
areas owned or controlled by the Department of
TERMINATION OF TRUST TERRITORY OF THE PACIFIC Defense, or designated for its use, that are sub-
ISLANDS ject to an integrated natural resources manage-
For termination of Trust Territory of the Pacific Is- ment plan prepared under section 670a of this
lands, see note set out preceding section 1681 of Title title, if the Secretary determines in writing that
48, Territories and Insular Possessions. such plan provides a benefit to the species for
which critical habitat is proposed for designa-
§ 1533. Determination of endangered species and
tion.
threatened species
(ii) Nothing in this paragraph affects the re-
(a) Generally quirement to consult under section 1536(a)(2) of
(1) The Secretary shall by regulation promul- this title with respect to an agency action (as
gated in accordance with subsection (b) deter- that term is defined in that section).
mine whether any species is an endangered spe- (iii) Nothing in this paragraph affects the obli-
cies or a threatened species because of any of gation of the Department of Defense to comply
the following factors: with section 1538 of this title, including the pro-
(A) the present or threatened destruction, hibition preventing extinction and taking of en-
modification, or curtailment of its habitat or dangered species and threatened species.
range; (b) Basis for determinations
(B) overutilization for commercial, rec-
reational, scientific, or educational purposes; (1)(A) The Secretary shall make determina-
(C) disease or predation; tions required by subsection (a)(1) solely on the
(D) the inadequacy of existing regulatory basis of the best scientific and commercial data
mechanisms; or available to him after conducting a review of
(E) other natural or manmade factors affect- the status of the species and after taking into
ing its continued existence. account those efforts, if any, being made by any
State or foreign nation, or any political subdivi-
(2) With respect to any species over which pro- sion of a State or foreign nation, to protect such
gram responsibilities have been vested in the species, whether by predator control, protection
Secretary of Commerce pursuant to Reorganiza- of habitat and food supply, or other conserva-
tion Plan Numbered 4 of 1970— tion practices, within any area under its juris-
(A) in any case in which the Secretary of
diction; or on the high seas.
Commerce determines that such species
(B) In carrying out this section, the Secretary
should—
shall give consideration to species which have
(i) be listed as an endangered species or a
been—
threatened species, or
(i) designated as requiring protection from
(ii) be changed in status from a threatened
unrestricted commerce by any foreign nation,
species to an endangered species,
or pursuant to any international agreement;
he shall so inform the Secretary of the Inte- or
rior; who shall list such species in accordance (ii) identified as in danger of extinction, or
with this section; likely to become so within the foreseeable fu-
(B) in any case in which the Secretary of ture, by any State agency or by any agency of
Commerce determines that such species a foreign nation that is responsible for the
should— conservation of fish or wildlife or plants.
(i) be removed from any list published pur-
suant to subsection (c) of this section, or (2) The Secretary shall designate critical habi-
(ii) be changed in status from an endan- tat, and make revisions thereto, under sub-
gered species to a threatened species, section (a)(3) on the basis of the best scientific
data available and after taking into consider-
he shall recommend such action to the Sec- ation the economic impact, the impact on na-
retary of the Interior, and the Secretary of the tional security, and any other relevant impact,
Interior, if he concurs in the recommendation, of specifying any particular area as critical
shall implement such action; and habitat. The Secretary may exclude any area
(C) the Secretary of the Interior may not from critical habitat if he determines that the
list or remove from any list any such species, benefits of such exclusion outweigh the benefits
and may not change the status of any such of specifying such area as part of the critical
species which are listed, without a prior favor- habitat, unless he determines, based on the best
able determination made pursuant to this sec- scientific and commercial data available, that
tion by the Secretary of Commerce. the failure to designate such area as critical
(3)(A) The Secretary, by regulation promul- habitat will result in the extinction of the spe-
gated in accordance with subsection (b) and to cies concerned.
the maximum extent prudent and deter- (3)(A) To the maximum extent practicable,
minable— within 90 days after receiving the petition of an
(i) shall, concurrently with making a deter- interested person under section 553(e) of title 5,
mination under paragraph (1) that a species is to add a species to, or to remove a species from,
Add-7
either of the lists published under subsection (c), ranted. The Secretary shall promptly publish
the Secretary shall make a finding as to wheth- such finding in the Federal Register.
er the petition presents substantial scientific or (ii) Within 12 months after receiving a petition
commercial information indicating that the pe- that is found under clause (i) to present substan-
titioned action may be warranted. If such a peti- tial information indicating that the requested
tion is found to present such information, the revision may be warranted, the Secretary shall
Secretary shall promptly commence a review of determine how he intends to proceed with the
the status of the species concerned. The Sec- requested revision, and shall promptly publish
retary shall promptly publish each finding made notice of such intention in the Federal Register.
under this subparagraph in the Federal Register. (4) Except as provided in paragraphs (5) and (6)
(B) Within 12 months after receiving a petition of this subsection, the provisions of section 553
that is found under subparagraph (A) to present of title 5 (relating to rulemaking procedures),
substantial information indicating that the pe- shall apply to any regulation promulgated to
titioned action may be warranted, the Secretary carry out the purposes of this chapter.
shall make one of the following findings: (5) With respect to any regulation proposed by
(i) The petitioned action is not warranted, in the Secretary to implement a determination,
which case the Secretary shall promptly pub- designation, or revision referred to in subsection
lish such finding in the Federal Register. (a)(1) or (3), the Secretary shall—
(ii) The petitioned action is warranted, in (A) not less than 90 days before the effective
which case the Secretary shall promptly pub- date of the regulation—
(i) publish a general notice and the com-
lish in the Federal Register a general notice
plete text of the proposed regulation in the
and the complete text of a proposed regulation
Federal Register, and
to implement such action in accordance with (ii) give actual notice of the proposed regu-
paragraph (5). lation (including the complete text of the
(iii) The petitioned action is warranted, but regulation) to the State agency in each
that— State in which the species is believed to
(I) the immediate proposal and timely pro-
occur, and to each county, or equivalent ju-
mulgation of a final regulation imple-
risdiction in which the species is believed to
menting the petitioned action in accordance occur, and invite the comment of such agen-
with paragraphs (5) and (6) is precluded by cy, and each such jurisdiction, thereon;
pending proposals to determine whether any
species is an endangered species or a threat- (B) insofar as practical, and in cooperation
ened species, and with the Secretary of State, give notice of the
(II) expeditious progress is being made to proposed regulation to each foreign nation in
add qualified species to either of the lists which the species is believed to occur or whose
published under subsection (c) and to remove citizens harvest the species on the high seas,
from such lists species for which the protec- and invite the comment of such nation there-
tions of this chapter are no longer necessary, on;
(C) give notice of the proposed regulation to
in which case the Secretary shall promptly such professional scientific organizations as
publish such finding in the Federal Register, he deems appropriate;
together with a description and evaluation of (D) publish a summary of the proposed regu-
the reasons and data on which the finding is lation in a newspaper of general circulation in
based. each area of the United States in which the
(C)(i) A petition with respect to which a find- species is believed to occur; and
ing is made under subparagraph (B)(iii) shall be (E) promptly hold one public hearing on the
treated as a petition that is resubmitted to the proposed regulation if any person files a re-
Secretary under subparagraph (A) on the date of quest for such a hearing within 45 days after
such finding and that presents substantial sci- the date of publication of general notice.
entific or commercial information that the peti- (6)(A) Within the one-year period beginning on
tioned action may be warranted. the date on which general notice is published in
(ii) Any negative finding described in subpara- accordance with paragraph (5)(A)(i) regarding a
graph (A) and any finding described in subpara- proposed regulation, the Secretary shall publish
graph (B)(i) or (iii) shall be subject to judicial in the Federal Register—
review. (i) if a determination as to whether a species
(iii) The Secretary shall implement a system is an endangered species or a threatened spe-
to monitor effectively the status of all species cies, or a revision of critical habitat, is in-
with respect to which a finding is made under volved, either—
subparagraph (B)(iii) and shall make prompt use (I) a final regulation to implement such
of the authority under paragraph 7 1 to prevent determination,
a significant risk to the well being of any such (II) a final regulation to implement such
species. revision or a finding that such revision
(D)(i) To the maximum extent practicable, should not be made,
within 90 days after receiving the petition of an (III) notice that such one-year period is
interested person under section 553(e) of title 5, being extended under subparagraph (B)(i), or
to revise a critical habitat designation, the Sec- (IV) notice that the proposed regulation is
retary shall make a finding as to whether the being withdrawn under subparagraph (B)(ii),
petition presents substantial scientific informa- together with the finding on which such
tion indicating that the revision may be war- withdrawal is based; or
(ii) subject to subparagraph (C), if a designa-
1 So in original. Probably should be paragraph ‘‘(7)’’. tion of critical habitat is involved, either—
Add-8
(I) a final regulation to implement such lation to the State agency in each State in
designation, or which such species is believed to occur.
(II) notice that such one-year period is Such regulation shall, at the discretion of the
being extended under such subparagraph. Secretary, take effect immediately upon the
(B)(i) If the Secretary finds with respect to a publication of the regulation in the Federal Reg-
proposed regulation referred to in subparagraph ister. Any regulation promulgated under the au-
(A)(i) that there is substantial disagreement re- thority of this paragraph shall cease to have
garding the sufficiency or accuracy of the avail- force and effect at the close of the 240-day period
able data relevant to the determination or revi- following the date of publication unless, during
sion concerned, the Secretary may extend the such 240-day period, the rulemaking procedures
one-year period specified in subparagraph (A) for which would apply to such regulation without
not more than six months for purposes of solic- regard to this paragraph are complied with. If at
iting additional data. any time after issuing an emergency regulation
(ii) If a proposed regulation referred to in sub- the Secretary determines, on the basis of the
paragraph (A)(i) is not promulgated as a final best appropriate data available to him, that sub-
regulation within such one-year period (or stantial evidence does not exist to warrant such
longer period if extension under clause (i) ap- regulation, he shall withdraw it.
plies) because the Secretary finds that there is (8) The publication in the Federal Register of
not sufficient evidence to justify the action pro- any proposed or final regulation which is nec-
posed by the regulation, the Secretary shall im- essary or appropriate to carry out the purposes
mediately withdraw the regulation. The finding of this chapter shall include a summary by the
on which a withdrawal is based shall be subject Secretary of the data on which such regulation
to judicial review. The Secretary may not pro- is based and shall show the relationship of such
pose a regulation that has previously been with- data to such regulation; and if such regulation
drawn under this clause unless he determines designates or revises critical habitat, such sum-
that sufficient new information is available to mary shall, to the maximum extent practicable,
warrant such proposal. also include a brief description and evaluation of
(iii) If the one-year period specified in sub- those activities (whether public or private)
paragraph (A) is extended under clause (i) with which, in the opinion of the Secretary, if under-
respect to a proposed regulation, then before the taken may adversely modify such habitat, or
close of such extended period the Secretary shall may be affected by such designation.
publish in the Federal Register either a final (c) Lists
regulation to implement the determination or
(1) The Secretary of the Interior shall publish
revision concerned, a finding that the revision
in the Federal Register a list of all species de-
should not be made, or a notice of withdrawal of
termined by him or the Secretary of Commerce
the regulation under clause (ii), together with
to be endangered species and a list of all species
the finding on which the withdrawal is based.
(C) A final regulation designating critical determined by him or the Secretary of Com-
habitat of an endangered species or a threatened merce to be threatened species. Each list shall
species shall be published concurrently with the refer to the species contained therein by sci-
final regulation implementing the determina- entific and common name or names, if any,
tion that such species is endangered or threat- specify with respect to each such species over
ened, unless the Secretary deems that— what portion of its range it is endangered or
(i) it is essential to the conservation of such threatened, and specify any critical habitat
species that the regulation implementing such within such range. The Secretary shall from
determination be promptly published; or time to time revise each list published under the
(ii) critical habitat of such species is not authority of this subsection to reflect recent de-
then determinable, in which case the Sec- terminations, designations, and revisions made
retary, with respect to the proposed regulation in accordance with subsections (a) and (b).
to designate such habitat, may extend the one- (2) The Secretary shall—
year period specified in subparagraph (A) by (A) conduct, at least once every five years, a
not more than one additional year, but not review of all species included in a list which is
later than the close of such additional year published pursuant to paragraph (1) and which
the Secretary must publish a final regulation, is in effect at the time of such review; and
(B) determine on the basis of such review
based on such data as may be available at that
whether any such species should—
time, designating, to the maximum extent
(i) be removed from such list;
prudent, such habitat.
(ii) be changed in status from an endan-
(7) Neither paragraph (4), (5), or (6) of this sub- gered species to a threatened species; or
section nor section 553 of title 5 shall apply to (iii) be changed in status from a threat-
any regulation issued by the Secretary in regard ened species to an endangered species.
to any emergency posing a significant risk to
Each determination under subparagraph (B)
the well-being of any species of fish or wildlife
shall be made in accordance with the provisions
or plants, but only if—
of subsections (a) and (b).
(A) at the time of publication of the regula-
tion in the Federal Register the Secretary (d) Protective regulations
publishes therein detailed reasons why such Whenever any species is listed as a threatened
regulation is necessary; and species pursuant to subsection (c) of this sec-
(B) in the case such regulation applies to tion, the Secretary shall issue such regulations
resident species of fish or wildlife, or plants, as he deems necessary and advisable to provide
the Secretary gives actual notice of such regu- for the conservation of such species. The Sec-
Add-9
retary may by regulation prohibit with respect Works of the Senate and the Committee on Mer-
to any threatened species any act prohibited chant Marine and Fisheries of the House of Rep-
under section 1538(a)(1) of this title, in the case resentatives on the status of efforts to develop
of fish or wildlife, or section 1538(a)(2) of this and implement recovery plans for all species
title, in the case of plants, with respect to en- listed pursuant to this section and on the status
dangered species; except that with respect to the of all species for which such plans have been de-
taking of resident species of fish or wildlife, veloped.
such regulations shall apply in any State which (4) The Secretary shall, prior to final approval
has entered into a cooperative agreement pursu- of a new or revised recovery plan, provide public
ant to section 1535(c) of this title only to the ex- notice and an opportunity for public review and
tent that such regulations have also been adopt- comment on such plan. The Secretary shall con-
ed by such State. sider all information presented during the public
(e) Similarity of appearance cases comment period prior to approval of the plan.
(5) Each Federal agency shall, prior to imple-
The Secretary may, by regulation of com-
mentation of a new or revised recovery plan,
merce or taking, and to the extent he deems ad-
consider all information presented during the
visable, treat any species as an endangered spe-
public comment period under paragraph (4).
cies or threatened species even though it is not
listed pursuant to this section if he finds that— (g) Monitoring
(A) such species so closely resembles in ap- (1) The Secretary shall implement a system in
pearance, at the point in question, a species cooperation with the States to monitor effec-
which has been listed pursuant to such section tively for not less than five years the status of
that enforcement personnel would have sub- all species which have recovered to the point at
stantial difficulty in attempting to differen- which the measures provided pursuant to this
tiate between the listed and unlisted species; chapter are no longer necessary and which, in
(B) the effect of this substantial difficulty is accordance with the provisions of this section,
an additional threat to an endangered or have been removed from either of the lists pub-
threatened species; and lished under subsection (c).
(C) such treatment of an unlisted species (2) The Secretary shall make prompt use of
will substantially facilitate the enforcement the authority under paragraph 7 1 of subsection
and further the policy of this chapter. (b) of this section to prevent a significant risk
(f) Recovery plans to the well being of any such recovered species.
(1) The Secretary shall develop and implement (h) Agency guidelines; publication in Federal
plans (hereinafter in this subsection referred to Register; scope; proposals and amendments:
as ‘‘recovery plans’’) for the conservation and notice and opportunity for comments
survival of endangered species and threatened The Secretary shall establish, and publish in
species listed pursuant to this section, unless he the Federal Register, agency guidelines to in-
finds that such a plan will not promote the con- sure that the purposes of this section are
servation of the species. The Secretary, in devel- achieved efficiently and effectively. Such guide-
oping and implementing recovery plans, shall, lines shall include, but are not limited to—
to the maximum extent practicable— (1) procedures for recording the receipt and
(A) give priority to those endangered species the disposition of petitions submitted under
or threatened species, without regard to taxo- subsection (b)(3) of this section;
nomic classification, that are most likely to (2) criteria for making the findings required
benefit from such plans, particularly those under such subsection with respect to peti-
species that are, or may be, in conflict with tions;
construction or other development projects or (3) a ranking system to assist in the identi-
other forms of economic activity; fication of species that should receive priority
(B) incorporate in each plan— review under subsection (a)(1) of this section;
(i) a description of such site-specific man- and
agement actions as may be necessary to (4) a system for developing and imple-
achieve the plan’s goal for the conservation menting, on a priority basis, recovery plans
and survival of the species; under subsection (f) of this section.
(ii) objective, measurable criteria which,
when met, would result in a determination, The Secretary shall provide to the public notice
in accordance with the provisions of this of, and opportunity to submit written comments
section, that the species be removed from on, any guideline (including any amendment
the list; and thereto) proposed to be established under this
(iii) estimates of the time required and the subsection.
cost to carry out those measures needed to (i) Submission to State agency of justification for
achieve the plan’s goal and to achieve inter- regulations inconsistent with State agency’s
mediate steps toward that goal. comments or petition
(2) The Secretary, in developing and imple- If, in the case of any regulation proposed by
menting recovery plans, may procure the serv- the Secretary under the authority of this sec-
ices of appropriate public and private agencies tion, a State agency to which notice thereof was
and institutions, and other qualified persons. given in accordance with subsection (b)(5)(A)(ii)
Recovery teams appointed pursuant to this sub- files comments disagreeing with all or part of
section shall not be subject to chapter 10 of title the proposed regulation, and the Secretary
5. issues a final regulation which is in conflict
(3) The Secretary shall report every two years with such comments, or if the Secretary fails to
to the Committee on Environment and Public adopt a regulation pursuant to an action peti-
Add-10
tioned by a State agency under subsection (b)(3), the time regulations were proposed, to specify any
the Secretary shall submit to the State agency habitat of a species considered to be a critical habitat
a written justification for his failure to adopt but that such specification of critical habitats not
apply to species listed prior to Nov. 10, 1978.
regulations consistent with the agency’s com- Subsec. (a)(1)(A). Pub. L. 97–304, § 2(a)(1)(A), redesig-
ments or petition. nated subpar. (1) as (A).
Subsec. (a)(1)(B). Pub. L. 97–304, § 2(a)(1)(A), (C), redes-
(Pub. L. 93–205, § 4, Dec. 28, 1973, 87 Stat. 886; Pub.
ignated subpar. (2) as (B) and substituted ‘‘rec-
L. 94–359, § 1, July 12, 1976, 90 Stat. 911; Pub. L. reational,’’ for ‘‘sporting,’’.
95–632, §§ 11, 13, Nov. 10, 1978, 92 Stat. 3764, 3766; Subsec. (a)(1)(C) to (E). Pub. L. 97–304, § 2(a)(1)(A), re-
Pub. L. 96–159, § 3, Dec. 28, 1979, 93 Stat. 1225; designated subpars. (3), (4), and (5) as (C), (D), and (E),
Pub. L. 97–304, § 2(a), Oct. 13, 1982, 96 Stat. 1411; respectively.
Pub. L. 100–478, title I, §§ 1002–1004, Oct. 7, 1988, Subsec. (a)(3). Pub. L. 97–304, § 2(a)(1)(E), added par.
(3).
102 Stat. 2306, 2307; Pub. L. 108–136, div. A, title Subsec. (b). Pub. L. 97–304, § 2(a)(2), completely re-
III, § 318, Nov. 24, 2003, 117 Stat. 1433; Pub. L. vised subsec. (b) by, among other changes, requiring
117–286, § 4(a)(113), Dec. 27, 2022, 136 Stat. 4318.) the Secretary to base determinations regarding the
listing or delisting of species ‘‘solely’’ on the basis of
Editorial Notes the best scientific and commercial data available,
streamlining the listing process by reducing the time
REFERENCES IN TEXT
periods for rulemaking, consolidating public meetings
Reorganization Plan Numbered 4 of 1970, referred to and hearing requirements, and establishing virtually
in subsec. (a)(2), is Reorg. Plan No. 4 of 1970, eff. Oct. 3, identical procedures for the listing and delisting of spe-
1970, 35 F.R. 15627, 84 Stat. 2090, which is set out in the cies and for the designation of critical habitat, and al-
Appendix to Title 5, Government Organization and Em- tering the evidentiary standard which petitioners must
ployees. satisfy to warrant a status review of the species pro-
This chapter, referred to in subsecs. (b)(4), (8), (e)(C), posed for listing or delisting.
and (g)(1), was in the original ‘‘this Act’’, meaning Pub. Subsec. (c)(1). Pub. L. 97–304, § 2(a)(3)(A), struck out
L. 93–205, Dec. 28, 1973, 81 Stat. 884, known as the En- ‘‘, and from time to time he may by regulation revise,’’
dangered Species Act of 1973, which is classified prin- after ‘‘Federal Register’’ and inserted at end ‘‘The Sec-
cipally to this chapter. This chapter, referred to in sub- retary shall from time to time revise each list pub-
sec. (b)(3)(B)(iii)(II), was in the original ‘‘the Act’’ and lished under the authority of this subsection to reflect
was translated as if it read ‘‘this Act’’, to reflect the recent determinations, designations, and revisions
probable intent of Congress. For complete classifica- made in accordance with subsections (a) and (b).’’
tion of this Act to the Code, see Short Title note set Subsec. (c)(2). Pub. L. 97–304, § 2(a)(3)(B), (C), redesig-
out under section 1531 of this title and Tables. nated par. (4) as (2). Former par. (2), directing the Sec-
retary, within 90 days of the receipt of the petition of
AMENDMENTS an interested person under section 553(e) of title 5, to
conduct and publish in the Federal Register a review of
2022—Subsec. (f)(2). Pub. L. 117–286 substituted ‘‘chap-
the status of any listed or unlisted species proposed to
ter 10 of title 5.’’ for ‘‘the Federal Advisory Committee
be removed from or added to either of the lists pub-
Act.’’
lished pursuant to paragraph (1) of this subsection, but
2003—Subsec. (a)(3). Pub. L. 108–136, § 318(a), des-
only if he made and published a finding that such per-
ignated existing provisions as subpar. (A), redesignated
son had presented substantial evidence which in his
former subpars. (A) and (B) as cls. (i) and (ii), respec-
judgment warranted such a review, was struck out.
tively, and added subpar. (B). Subsec. (c)(3). Pub. L. 97–304, § 2(a)(3)(B), struck out
Subsec. (b)(2). Pub. L. 108–136, § 318(b), inserted ‘‘the par. (3) which had provided that any list in effect on
impact on national security,’’ after ‘‘the economic im- Dec. 27, 1973, of species of fish or wildlife determined by
pact,’’. the Secretary of the Interior, pursuant to the Endan-
1988—Subsec. (b)(3)(C)(iii). Pub. L. 100–478, § 1002(a), gered Species Conservation Act of 1969, to be threat-
added subcl. (iii). ened with extinction be republished to conform to the
Subsec. (e). Pub. L. 100–478, § 1002(b), substituted ‘‘reg- classification for endangered species or threatened spe-
ulation of commerce or taking,’’ for ‘‘regulation,’’ in cies, as the case might be, provided for in this chapter,
introductory provisions. but until such republication, any such species so listed
Subsec. (f). Pub. L. 100–478, § 1003, amended subsec. (f) was to be deemed an endangered species within the
generally. Prior to amendment, subsec. (f) read as fol- meaning of this chapter, and that the republication of
lows: ‘‘The Secretary shall develop and implement any species pursuant to this paragraph did not require
plans (hereinafter in this subsection referred to as ‘re- public hearing or comment under section 553 of title 5.
covery plans’) for the conservation and survival of en- Subsec. (c)(4). Pub. L. 97–304, § 2(a)(3)(C), redesignated
dangered species and threatened species listed pursuant par. (4) as (2).
to this section, unless he finds that such a plan will not Subsec. (d). Pub. L. 97–304, § 2(a)(4)(A), substituted
promote the conservation of the species. The Secretary, ‘‘section 1535(c) of this title’’ for ‘‘section 1535(a) of this
in developing and implementing recovery plans (1) title’’.
shall, to the maximum extent practicable, give priority Subsec. (f). Pub. L. 97–304, § 2(a)(4)(B), (C), (D), redes-
to those endangered species or threatened species most ignated subsec. (g) as (f) and substituted ‘‘recovery
likely to benefit from such plans, particularly those plans (1) shall, to the maximum extent practicable,
species that are, or may be, in conflict with construc- give priority to those endangered species or threatened
tion or other developmental projects or other forms of species most likely to benefit from such plans, particu-
economic activity, and (2) may procure the services of larly those species that are, or may be, in conflict with
appropriate public and private agencies and institu- construction or other developmental projects or other
tions, and other qualified persons. Recovery teams ap- forms of economic activity, and (2)’’ for ‘‘recovery
pointed pursuant to this subsection shall not be subject plans,’’. Former subsec. (f), relating to the promulga-
to the Federal Advisory Committee Act.’’ tion of regulations, was struck out.
Subsecs. (g) to (i). Pub. L. 100–478, § 1004, added subsec. Subsec. (g). Pub. L. 97–304, § 2(a)(4)(C), (E), redesig-
(g) and redesignated former subsecs. (g) and (h) as (h) nated subsec. (h) as (g), substituted reference to sub-
and (i), respectively. section (b)(3) of this section for reference to subsection
1982—Subsec. (a)(1). Pub. L. 97–304, § 2(a)(1)(B), (D), in- (c)(2) of this section in par. (1), substituted ‘‘under sub-
serted ‘‘promulgated in accordance with subsection section (a)(1) of this section’’ for ‘‘for listing’’ in par.
(b)’’ after ‘‘shall by regulation’’ in introductory provi- (3), and substituted ‘‘subsection (f) of this section’’ for
sions preceding subpar. (A), and struck out provision ‘‘subsection (g) of this section’’ in par. (4). Former sub-
following subpar. (E), which directed the Secretary, at sec. (g) redesignated (f).
Add-11
Subsec. (h). Pub. L. 97–304, § 2(a)(4)(C), (F), added sub- garding such petition or proposed regulation shall be
sec. (h) and redesignated former subsec. (h) as (g). deemed to be complied with to the extent that like re-
1979—Subsec. (b)(1). Pub. L. 96–159, § 3(1), required the quirements under such section 4 [this section] (as in ef-
Secretary’s determinations to be preceded with a re- fect before the date of the enactment of this Act) were
view of the status of the species. complied with before such date of enactment.
Subsec. (f)(2)(B)(i). Pub. L. 96–159, § 3(2), required pub- ‘‘(2) Any regulation proposed after, or pending on, the
lication of summary of text rather than of the com- date of the enactment of this Act [Oct. 13, 1982] to des-
plete text of proposed regulation specifying any critical ignate critical habitat for a species that was deter-
habitat and inclusion of a map of the proposed critical mined before such date of enactment to be endangered
habitat. or threatened shall be subject to the procedures set
Subsec. (f)(2)(B)(iv)(II). Pub. L. 96–159, § 3(3), sub- forth in section 4 of such Act of 1973 [this section] (as
stituted ‘‘if requested within 15 days after the date on amended by subsection (a)) for regulations proposing
which the public meeting is conducted,’’ for ‘‘if re- revisions to critical habitat instead of those for regula-
quested,’’. tions proposing the designation of critical habitat.
Subsec. (f)(2)(C). Pub. L. 96–159, § 3(4), (5), inserted in ‘‘(3) Any list of endangered species or threatened spe-
introductory text ‘‘, subsection (b)(4) of this section,’’; cies (as in effect under section 4(c) of such Act of 1973
and in cl. (ii), included reference to significant risk to [subsec. (c) of this section] on the day before the date
wellbeing of any species of plants, inserted in item (II) of the enactment of this Act [Oct. 13, 1982]) shall re-
reference to regulation applicable to resident species of main in effect unless and until determinations regard-
plants, extended the statutory period to a ‘‘240-day pe- ing species and designations and revisions of critical
riod’’ from a ‘‘120-day period’’, and provided for with- habitats that require changes to such list are made in
drawal of an emergency regulation without substantial accordance with subsection (b)(5) of such Act of 1973
evidence to warrant it, respectively. [subsec. (b)(5) of this section] (as added by subsection
Subsec. (h). Pub. L. 96–159, § 3(6), added subsec. (h). (a)).
1978—Subsec. (a)(1). Pub. L. 95–632, § 11(1), inserted ‘‘(4) Section 4(a)(3)(A) of such Act of 1973 [subsec.
provision requiring the Secretary, at the time a regula- (a)(3)(A) of this section] (as added by subsection (a))
tion is proposed, to specify by regulation any habitat of shall not apply with respect to any species which was
the species involved which is considered a critical habi- listed as an endangered species or a threatened species
tat providing the species was listed subsequent to Nov. before November 10, 1978.’’
10, 1978.
Subsec. (b)(4). Pub. L. 95–632, § 11(7), added par. (4). ABOLITION OF HOUSE COMMITTEE ON MERCHANT MARINE
Subsec. (c)(1). Pub. L. 95–632, § 11(2), struck out ‘‘and AND FISHERIES
shall’’ after ‘‘if any’’ and inserted ‘‘, and specify any
critical habitat within such range’’ after ‘‘endangered Committee on Merchant Marine and Fisheries of
or threatened’’. House of Representatives abolished and its jurisdiction
Subsec. (c)(2). Pub. L. 95–632, § 11(6), substituted transferred by House Resolution No. 6, One Hundred
‘‘within 90 days of the receipt of’’ for ‘‘upon’’ and ‘‘con- Fourth Congress, Jan. 4, 1995. Committee on Merchant
duct and publish in the Federal Register a review of the Marine and Fisheries of House of Representatives treat-
status of’’ for ‘‘conduct a review of’’ and inserted a pro- ed as referring to Committee on Resources of House of
vision requiring that the review and findings be made Representatives in case of provisions relating to fish-
and published prior to initiation of any procedures eries, wildlife, international fishing agreements, ma-
under subsec. (b)(1) of this section. rine affairs (including coastal zone management) ex-
Subsec. (c)(4). Pub. L. 95–632, § 11(3), added par. (4). cept for measures relating to oil and other pollution of
Subsec. (f)(2)(A). Pub. L. 95–632, § 11(4)(A), substituted navigable waters, or oceanography by section 1(b)(3) of
‘‘Except as provided in subparagraph (B), in’’ for ‘‘In’’. Pub. L. 104–14, set out as a note preceding section 21 of
Subsec. (f)(2)(B), (C). Pub. L. 95–632, § 11(4)(B), (C), Title 2, The Congress. Committee on Resources of
added subpar. (B), redesignated former subpar. (B) as House of Representatives changed to Committee on
(C), and as so redesignated, substituted ‘‘Neither sub- Natural Resources of House of Representatives by
paragraph (A) or (B)’’ for ‘‘Neither subparagraph (A)’’. House Resolution No. 6, One Hundred Tenth Congress,
Subsec. (f)(3). Pub. L. 95–632, § 13, substituted ‘‘a sum- Jan. 5, 2007.
mary by the Secretary of the data on which such regu-
lation is based and shall show the relationship of such
data to such regulations’’ for ‘‘a statement by the Sec-
retary of the facts on which such regulation is based
and the relationship of such facts to such regulation’’.
Subsec. (f)(4), (5). Pub. L. 95–632, § 11(4)(D), added pars.
(4) and (5).
Subsec. (g). Pub. L. 95–632, § 11(5), added subsec. (g).
1976—Subsec. (f)(2)(B)(ii). Pub. L. 94–359 substituted
‘‘subsection (b)(1)(A)’’ for ‘‘subsection (b)(A), (B), and
(C)’’.
Statutory Notes and Related Subsidiaries

EFFECTIVE DATE OF 1982 AMENDMENT
Pub. L. 97–304, § 2(b), Oct. 13, 1982, 96 Stat. 1416, pro-
vided that:
‘‘(1) Any petition filed under section 4(c)(2) of the En-
dangered Species Act of 1973 [subsec. (c)(2) of this sec-
tion] (as in effect on the day before the date of the en-
actment of this Act [Oct. 13, 1982]) and any regulation
proposed under section 4(f) of such Act of 1973 [subsec.
(f) of this section] (as in effect on such day) that is
pending on such date of enactment [Oct. 13, 1982] shall
be treated as having been filed or proposed on such date
of enactment under section 4(b) of such Act of 1973 [sub-
sec. (b) of this section] (as amended by subsection (a));
and the procedural requirements specified in such sec-
tion 4(b) [subsec. (b) of this section] (as so amended) re-
Add-12
Add-13
FWS, DOI, and NOAA, Commerce § 424.12
(2) Overutilization for commercial, threatened. The weight given such evi-
recreational, scientific, or educational dence will vary depending on the inter-
purposes; national agreement in question, the
(3) Disease or predation; criteria pursuant to which the species
(4) The inadequacy of existing regu- is eligible for protection under such au-
latory mechanisms; or thorities, and the degree of protection
(5) Other natural or manmade factors afforded the species. The Secretary
affecting its continued existence. shall give consideration to any species
(d) In determining whether a species protected under such an international
is a threatened species, the Services agreement, or by any State or foreign
must analyze whether the species is nation, to determine whether the spe-
likely to become an endangered species cies is endangered or threatened.
within the foreseeable future. The term (g) The Secretary shall take into ac-
foreseeable future extends only so far count, in making determinations under
into the future as the Services can rea- paragraph (c) or (e) of this section,
sonably determine that both the future those efforts, if any, being made by any
threats and the species’ responses to State or foreign nation, or any polit-
those threats are likely. The Services ical subdivision of a State or foreign
will describe the foreseeable future on nation, to protect such species, wheth-
a case-by-case basis, using the best er by predator control, protection of
available data and taking into account habitat and food supply, or other con-
considerations such as the species’ life- servation practices, within any area
history characteristics, threat-projec- under its jurisdiction, or on the high
tion timeframes, and environmental seas.
variability. The Services need not iden- [49 FR 38908, Oct. 1, 1984, as amended at 84 FR
tify the foreseeable future in terms of a 45052, Aug. 27, 2019]
specific period of time.
(e) The Secretary shall delist a spe-
cies if the Secretary finds that, after
conducting a status review based on
the best scientific and commercial data
available:
(1) The species is extinct;
(2) The species does not meet the def-
inition of an endangered species or a
threatened species. In making such a
determination, the Secretary shall
consider the same factors and apply
the same standards set forth in para-
graph (c) of this section regarding list-
ing and reclassification; or
(3) The listed entity does not meet
the statutory definition of a species.
(f) The fact that a species of fish,
wildlife, or plant is protected by the
Convention on International Trade in
Endangered Species of Wild Fauna and
Flora (see part 23 of this title) or a
similar international agreement on
such species, or has been identified as
requiring protection from unrestricted
commerce by any foreign nation, or to
be in danger of extinction or likely to
become so within the foreseeable fu-
ture by any State agency or by any
agency of a foreign nation that is re-
sponsible for the conservation of fish,
wildlife, or plants, may constitute evi-
dence that the species is endangered or
Add-14

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Case: 22-15532, 09/13/2024, ID: 12906866, DktEntry: 31, Page 1 of 87

Nos. 22-15529, 22-15532, 22-15534, 22-15535, 22-15536,

UNITED STATES COURT OF APPEALS

DEFENDERS OF WILDLIFE, et al.,

UNITED STATES FISH AND WILDLIFE SERVICE, et al.,

FEDERAL APPELLANTS’ OPENING BRIEF

TABLE OF AUTHORITIES ................................................................................... iii

STATEMENT OF THE ISSUES............................................................................... 4

PERTINENT STATUTES AND REGULATIONS .................................................. 5

STATEMENT OF THE CASE .................................................................................. 5

A. The Endangered Species Act................................................................. 5

1. The definition of species ............................................................. 6

2. The five factors for determining a species’ status ...................... 6

B. The Recovery and Delisting of the Gray Wolves ................................. 8

1. Gray wolf biology ....................................................................... 8

2. The listing and recovery of gray wolves ..................................... 9

3. The Service’s previous regulatory efforts and

4. The 2020 delisting rule ............................................................. 17

SUMMARY OF ARGUMENT ............................................................................... 21

STANDARD OF REVIEW ..................................................................................... 24

I. The district court’s decision rests on the incorrect assumption

A. The Service carefully analyzed all listed wolves, not just

1. The Service’s biological decision to focus on core

2. The Service’s approach is consistent with Humane

B. The Service appropriately considered lost historical

II. The district court erred in rejecting the Rule’s evaluation of

A. The ESA delegates to the Service the task of judging

B. The Service’s application of “significant” was not

III. The district court improperly substituted its understanding of

IV. The Service rationally concluded that regulatory mechanisms

Alaska Dep’t of Env’t Conservation v. Env’t Prot. Agency,

Am. Elec. Power Co. v. Connecticut,

Bonnichsen v. United States,

Bostock v. Clayton Cnty.,

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,

City of Arlington v. Fed. Commc’ns Comm’n,

Crow Indian Tribe v. United States,

Ctr. for Biological Diversity v. Jewell,

Ctr. for Biological Diversity v. Zinke,

Defs. of Wildlife v. Norton,

Defs. of Wildlife v. Zinke,

Desert Survivors v. U.S. Dep’t of Interior,

Forest Guardians v. U.S. Forest Serv.,

Friends of Blackwater v. Salazar,

Halliburton Co. v. Erica P. John Fund, Inc.,

Humane Soc’y of the U.S. v. Pritzker,

Humane Soc'y of the U.S. v. Zinke,

Loper Bright Enters. v. Raimondo,

Lotus Vaping Techs., LLC v. U.S. Food & Drug Admin.,

Marsh v. Or. Nat. Res. Council,

Native Ecosystems Council v. Weldon,

Nw. Ecosystem All. v. U.S. Fish & Wildlife Serv.,

Pac. Gas & Elec. Co. v. Fed. Energy Regul. Comm’n,

Protect Our Cmtys. Found. v. Jewell,

Ranchers Cattlemen Action Legal Fund

River Runners for Wilderness v. Martin,

San Luis & Delta-Mendota Water Auth. v. Jewell,

San Luis & Delta-Mendota Water Auth. v. Locke,

The Lands Council v. McNair,

Tenn. Valley Auth. v. Hill,