Svend Brandt-Erichsen Noted for Work with New Mexico Department of Game & Fish

Svend Brandt-Erichsen was quoted in the Tucson Sentinel article “Feds defend Mexican wolf recovery plan before 9th Circuit panel.” The article provides an overview of recent arguments in front of a Ninth Circuit panel over whether the U.S. Fish and Wildlife Service (FWS) should once again be required to rewrite its Endangered Species Act (ESA) recovery plan for the endangered Mexican wolf.

The appeal concerned a FWS revision to its Mexican wolf recovery plan that was adopted in 2017. FWS issued the first Mexican wolf recovery plan in 1982, which described captive breeding efforts that had started with the seven known remaining members of the species. Wolves from that breeding program were reintroduced into the wild in 1998. Only 46 wolves were recorded in the wild in 2010. However, the practice of fostering pups born in captivity with wild wolves has been increasingly successful. The most recent count of Mexican wolves found a minimum of 241 in the wild, and the population numbers have increased each of the last seven years.

Conservation groups appealed the 2017 recovery plan. In 2019, U.S. District Judge Jennifer Zipps ruled that the conservation groups could challenge whether a recovery plan includes required elements, but that the ESA does not allow them dispute what a recovery plan determines is needed for conservation of the species. In 2021, the court issued summary judgment in favor of the FWS as to most contested elements of the recovery plan but ruled that the plan did not include required specific actions to achieve its goals. The agency has since reissued the recovery plan to address those issues. The conservation groups appealed the district court’s 2019 ruling regarding the scope of recovery plan challenges allowed under the ESA, which led to the recent 9th Circuit hearing.

The article notes that during the hearing, Svend, as counsel for intervening defendant New Mexico Department of Game and Fish in the matter, explained that because recovery plans aren’t final agency actions, parties can only challenge non-discretionary actions, and because the challenge goes to the substance of the recovery plan rather than just the existence of one, it must be dismissed.