Full opinion text
MEMORANDUM OPINION AND ORDER ALAN B. JOHNSON, Chief Judge. The above-entitled matter comes before the Court on plaintiffs State of Wyoming, et al.’s Opening Briefs. The Court, having reviewed the briefs, administrative record and materials filed in support thereof and in opposition thereto, having heard oral arguments on February 4, 2005, and being otherwise fully advised in the premises, FINDS and ORDERS as follows: Factual and Procedural Background By the early 1900s the demographic collapse of the gray wolf in the western portion of the United States was at its apex. Nearly the entire population of gray wolves had disappeared. The near extermination of the gray wolf had many causes, including westward expansion of the population of the United States, rampant hunting and anti-wolf government policies. It is generally accepted that the cause of the wolfs demise in the coterminous United States was a direct result of human depredation. In 1973, United States Fish and Wildlife Services (FWS) listed the Northern Rocky Mountain Wolf (Canis lupus irremotus) as an endangered species pursuant to its authority under the Endangered Species Act, 16 U.S.C. §§ 1531, et seq. (ESA). In 1978, the Secretary revised the gray wolf listing to include the entire species canus lupus. 43 Fed.Reg. 9,607 (March 9, 1978). In 1980 the FWS developed a plan (the Recovery Plan) to recover the gray wolf population in the northern Rocky Mountain area, encompassing Yellowstone Park north to the Canadian border, including areas of central Idaho. The Recovery Plan envisioned gray wolf reintroduction in Yellowstone National Park. The goal of the Recovery Plan was to coordinate recovery of two viable gray wolf populations in the lower forty-eight states. No action was taken on this plan. In 1982 Congress amended the ESA to include Section 10(j). This section of the ESA authorizes the Secretary of the Interior to relocate and “release... any population ... of an endangered species or a threatened species outside the current range of such species if the Secretary determines that such a release will further the conservation of such species.” 16 U.S.C. § 1539(j)(2)(A). Before any authorization of a release of an endangered species the Secretary must determine if the released population “is essential to the continued existence of an endangered species or a threatened species.” 16 U.S.C. § 1539®(2)(B). In 1987, FWS revised the 1980 Recovery Plan (the Revised Plan). In the Revised Plan the FWS proposed steps to remove the gray wolf from the endangered and threatened species list. The Revised Plan covered three major geographic areas: northwest Montana, central Idaho, and the Greater Yellowstone Area. The Revised Plan further recommended the introduction of at least ten breeding pairs of gray wolves for three consecutive years into those areas. The Revised Plan proposed a metric by which the Recovery Plan could be evaluated as a success, namely the establishment of 10 breeding pairs of wolves for at least three years in the three outlined recovery areas. The Revised Plan also recommended that once the gray wolf population recovered, the recovery area should be split into three management zones to be administered by the respective states, Montana, Idaho and Wyoming. In 1991, based on the Revised Plan, Congress directed the FWS, in cooperation with the National Park Service and the United States Forest Service, to prepare an environmental impact statement discussing the impact of introducing gray wolf populations into Yellowstone Park and central Idaho, in accordance with the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (NEPA). See 42 U.S.C. § 4332(C)(i). On May 4, 1994, FWS filed the final environmental impact statement (FEIS) regarding the reintroduction of gray wolf populations into the two recovery areas. No supplemental environmental impact statement was filed. In November 1994, the United States Department of Interior (Interior) promulgated a rule, 50 C.F.R. § 17.84(i)(the Final Rule), authorizing the introduction of experimental, non-essential gray wolf populations into Yellowstone Park and central Idaho. The term non-essential refers to the fact that the released population was not essential to the survival of the species as a whole. Two reintroduction areas were specified in the Code of Federal Regulations. See Figure 1. Management of the reintroduced gray wolf populations is controlled under 50 C.F.R. § 17.84(i). This section provides a comprehensive management strategy regarding the reintroduced gray wolves. Included in the regulation are rules regarding controlling gray wolves that attack or deprecate livestock and the wild ungulate population. See 50 C.F.R. §§ 17.84(i)(3),(7), and (8). The management plan provides for both self-help management of wolf depredation, federal agency action, and action by the states and affected tribes. The self-help provisions refer to livestock producers on both public lands and private lands, and approves methods for the harassment and taking of gray wolves that are depredating livestock. Figure 1. The Yellowstone Management Area. (50 C.F.R. § 17.84(7)(ii) In 1995, the FWS began the reintroduction of the gray wolf into Yellowstone Park and the surrounding environs. The FWS’ initial release included fourteen western Canadian gray wolves. FWS released seventeen additional western Canadian gray wolves one year later. Concomitant with the reintroduction of the gray wolves, the FWS announced that the gray wolf would be a candidate for delisting or downlisting when the population met or exceeded the recovery goals outlined in their Revised Plan. See 50 C.F.R. § 17.84(i)(9). In fact, in 2003 the FWS downlisted the gray wolf within the western Distinct Population Segment (DPS) from endangered to threatened. See 68 Fed.Reg. 15,806-15,-875. The FWS, looking to the eventual delisting of the gray wolf in light of its remarkable recovery, requested that Idaho, Montana and Wyoming each develop a wolf management plan that would assure further success and advance the goals of the Revised Plan and comport with the ESA’s mandates regarding the delisting of the gray wolf and the existence of a sustainable gray wolf population. See 16 U.S.C. § 1533(a)(1). To this end, each state began to develop a wolf management plan. This process included input and suggestions from FWS along the way. On July 16, 2002, FWS sent a letter to then acting director of the Wyoming Game and Fish Department (WGFD) outlining issues FWS considered necessary to be addressed before delisting could occur. These issues included concern about Wyoming’s classification of the gray wolf as a predator. FWS explained that the law would have to change in order to pass muster under the ESA’s delisting regulations. On September 11, 2002, the WGFD wrote the FWS a letter inquiring whether a dual status approach to wolf management would satisfy the requirements, as FWS saw them, for delisting. The dual status proposal would regulate the gray wolf, under Wyoming law, as both a predator and a trophy game animal. On September 26, 2002, FWS replied to WGFD inquiry regarding a dual status approach to regulation of the gray wolf. FWS wrote that it did not believe that the dual status approach would satisfy their requirements for maintaining a viable gray wolf population. The FWS suggested that Wyoming contact Montana and Idaho to help develop a unified approach to state wolf management. On December 2, 2002, FWS sent WGFD comments on the proposed Wyoming wolf management plan. In his comments, Ed Bangs, FWS Wolf Recovery Coordinator, reiterated FWS’s concern regarding the dual status approach. Mr. Bangs, however, thought that the plan otherwise had a sound biological basis. On February 21, 2003, DOI sent Governor Freudenthal a letter discussing Wyoming’s wolf management plan and how it needed to fit within the ESA’s requirements for delisting. In that correspondence, DOI highlighted the number of packs required to be sustained outside of Yellowstone National Park and the need for a regulated harvest of gray wolves. On July 2, 2003, FWS, through Ed Bangs, made comments on the final draft of Wyoming’s wolf management plan. Mr. Bangs reiterated FWS and DOFs mutual concern regarding the classification of gray wolves as predators. In July 2003, the Wyoming Legislature enacted Wyo. Stat. § 23-1-304. This legislation established a wolf management plan for Wyoming (the Wyoming Plan). The Wyoming Plan becomes effective upon the removal of the gray wolf from the list of experimental nonessential population, endangered species or threatened species in Wyoming. Wyo. Stat. § 23 — 1—304(f); see also Wyo. Stat. § 23-1-108. The goal of the legislation was to have a management plan in place to facilitate the de-listing of the gray wolf. A statement of legislative intent provided: (a) It is the purpose of this act, unless the introduction of the gray wolf into Wyoming is determined by lawful authorities not to have been in accordance with federal law, to provide appropriate state management and control of gray wolves in order to facilitate the removal of the gray wolf from its listing as an experimental nonessential population, endangered species or threatened species in Wyoming and to prevent future listing of the gray wolf as an experimental nonessential population, endangered species or threatened species. (b) In providing appropriate state management and control of gray wolves, the state acknowledges the need to fill the current vacuum of management of this species within the state. The state retains all rights to investigate and, if determined by state officials to be appropriate, take legal actions against the federal government relating to the introduction of the gray wolf into the boundaries of this state. (c) In order to accomplish the purposes of this act, the game and fish commission shall enter into a memorandum of understanding with appropriate federal agencies under which the commission and federal agencies shall endeavor to manage the prey base for gray wolves in a manner to maintain a sufficient prey base in Yellowstone National Park, Grand Teton National Park and John D. Rockefeller, Jr. Memorial Parkway within the state for at least eight (8) packs of wolves. The game and fish commission shall endeavor to manage big game populations providing a prey base for seven (7) packs of gray wolves in all other areas of the state in such a manner as to mitigate to the greatest extent possible, adverse effects on opportunities for licensed hunters to take big game. Laws 2003, ch. 115, § 3. The Wyoming Plan is a comprehensive management strategy, with several key provisions. The Wyoming Plan classifies gray wolves as both predatory and trophy game animals. See Wyo. Stat. §§ 23-1-101(a)(viii) and (xii)(B)(I & II). Wyoming Statute § 23 — 1—101 (a)(viii)(B) provides: (B) Until the date gray wolves are removed from the list of experimental nonessential population endangered species or threatened species in Wyoming as provided by W.S. 23-1-108, “predatory animal” includes wolves. After that date, “predatory animal” shall include any gray wolf not within an area of the state in which the gray wolf is: (I) Designated as a trophy game animal under subdivision (xii)(B)(I) of this subsection; (II) Classified as a trophy game animal by the commission pursuant to W.S. 23 — 1—304(b)(i)(A). Classification as a predatory animal is significant because the management is less regulated than other game classifications. For instance, Wyoming Statute § 23-3-103 provides: (a) Predatory animals and predacious birds may be taken without a license in any manner and at any time except as provided by W.S. 23-2-303(d), 23-3-112, 23-3-304(b), 23-3-305 and 23-3-307. The department shall report annually to the Wyoming department of agriculture the number of predatory animals and predacious birds taken by the department’s animal damage control agents, and include in the report the area where taken and the control method used. The classification of the gray wolf as a predatory animal is premised on there being “at least seven [ ] packs of gray wolves located in this state and primarily outside of Yellowstone National Park, Grand Te-ton National Park and John D. Rockefeller, Jr. Memorial Parkway or at least fifteen [] packs within this state, including Yellowstone National Park, Grand Teton National Park and John D. Rockefeller, Jr. Memorial Parkway as of the end of the preceding calendar quarter.” Wyo. Stat. § 23 — 1—304(b)(ii). However, under the Wyoming Plan gray wolves would also be managed under a “trophy game animal” classification. Wyoming Statute § 23-1-101(a)(xii)(B) provides: (B) From and after the date gray wolves are removed from the list of experimental nonessential population, endangered species or threatened species in Wyoming as provided by W.S. 23-1-108: (I) “Trophy game animal” shall include any gray wolf within those tracts of land within the boundaries of Wyoming designated as Yellowstone National Park, Grand Teton National Park, the John D. Rockefeller, Jr. Memorial Parkway, and those federally designated wilderness areas contiguous to these national parks and this parkway as defined by the United States Congress as of January 1, 2003; and (II) “Trophy game animal” shall include any gray wolf within any area of the state where gray wolves are classified as trophy game animals by the commission pursuant to W.S. 23-1-304(b)(i)(A). Management of trophy game animals is more regulated than predatory animals. For instance, Wyoming Statute § 23-3-102(b) and (c) provides: (b) Any person who takes any bighorn sheep, mountain goat, mountain lion, grizzly bear or, gray wolf where classified as a trophy game animal, without the proper license except as otherwise permitted by this act is guilty of a 4th degree misdemeanor. (c) Any person who takes any big or trophy game animals not specified in subsections (a) and (b) without a proper license except as otherwise permitted by this act is guilty of an 8th degree misdemeanor. The principal difference between the classification between predatory animal and trophy game animal is that an animal classified as a predatory animal may be taken at any time without a license or coupon, whereas the taking of an animal classified as a trophy game animal without a license is subject to criminal sanction. However, the Wyoming Plan specifically calls for the commission to prohibit the taking of gray wolves except when the gray wolves are damaging private property, “within the area of the state the commission determines is necessary to reasonably ensure seven [ ] packs of gray wolves are located in this state and primarily outside of Yellowstone National Park, Grand Teton National Park and John D. Rockefeller, Jr. Memorial Parkway at the end of the current calendar year.” Wyo. Stat. § 23-1-304(b)(i)(A); see also Wyo. Stat. § 23-3-115(e)(dealing with the management of gray wolves that destroy private property). Another key feature of the Wyoming Plan is how it defines pack. The Wyoming Plan defines “pack” as meaning: five (5) or more gray wolves traveling together. If a group of gray wolves consists of more than ten (10) animals known to be traveling together, the commission may, at its discretion, recognize the number of packs within such a group to be equal to the number of reproductively mature females bearing young found within that group of wolves. Wyo. Stat. § 23-l-304(c). In September 2003, Wyoming submitted the Wyoming Plan to FWS for approval. Idaho and Montana each submitted proposed wolf management plans as well. In January 2004, after peer review, the FWS approved the proposals from Idaho and Montana, however, rejected the Wyoming Plan. In a letter sent to the WGFD, the DOI wrote: Based on our review of the state management plans, peer review comments, and the states’ response to those comments, the [FWS] is confident that both the Montana and Idaho wolf management plans are adequate to maintain their share of the tri-state wolf population above recovery levels. Nonetheless, the [FWS] must consider the three state management plans in their totality because the wolf populations of the three states comprise the Western Distinct Population Segment, the listed entity in question. As a result, delisting cannot be proposed as this time due to some significant concerns about portions of Wyoming’s state law and wolf management plan. Several points of contention emerged between FWS, DOI and the State of Wyoming. Chief among them was Wyoming insistence on maintaining a “predatory animal” classification for gray wolves. In the January 13, 2004 letter the DOI commented: [t]he ‘predatory animal’ status for wolves must be changed. The unregulated harvest and inadequate monitoring plan, and unit boundaries proposed by the state’s management plan do not provide sufficient management controls to assure [FWS] that the wolf population will remain above recovery levels. The DOI suggested in that same letter that “[t]he designation of wolves as ‘trophy game’ statewide would allow Wyoming to devise a management strategy that provides for self-sustaining populations above recovery goals, regulated harvest and adequate monitoring of that harvest.” FWS and Interior were also concerned about Wyoming’s commitment to managing at least fifteen wolf packs in Wyoming. In the January 13, 2004 letter the DOI noted: The Wyoming state law must clearly commit to managing for at least 15 wolf packs in Wyoming. [DOI] believe[s] that wolf population management as trophy game would provide adequate controls to ensure that wolves remain above recovery goals with well distributed packs in suitable habitat. DOI also took issue with Wyoming’s definition of pack. The DOI explained its position in the letter, stating: The Wyoming definition of a pack must be consistent among the three states and should be biologically based... If pack size must be established by law...the state law must define pack size as at least 6 wolves traveling together in the winter. At the current time, biological monitoring and analyses indicate that this pack size is expected to include at least one breeding pair. Since having wolf management plans in place was a prerequisite to delisting the gray wolf from the ESA, Interior and FWS have not yet proposed a rule to delist the gray wolf. However in April 2003, the FWS did propose and promulgate a rule that downlisted the gray wolf in the Western and Eastern Distinct Population Segments. See 68 Fed. Register 15,804. On May 3, 2004, the State of Wyoming filed suit in the United States District Court for the District of Wyoming against Gale Norton in her official capacity as the Secretary of the United States Department of Interior and Steven Williams in his official capacity as the Director of FWS. On July 22, 2004, Timothy Morrison, Marie French and Tim French moved to intervene on behalf of the State of Wyoming in their official capacities as the Board of County Commissioners of the County of Park, State of Wyoming-the motion was granted on July 26, 2004. On August 5, 2004, the Greater Yellowstone Coalition, the National Wildlife Federation, the Jackson Hole Conservation Alliance, the Predator Conservation Alliance and the Wyoming Outdoor Council moved to intervene on behalf of the U.S. Department of Interior-this motion was granted on the same day it was filed. The State of Wyoming and the Plaintiff-Intervenors alleged several causes of action, including: (1) that the Defendants have violated the ESA and the Administrative Procedure Act, 5 U.S.C. § 551 et seq. (APA), in their rejection of the Wyoming Plan by ignoring the best scientific and commercial data available, and by relying instead upon “litigation risk management” and political concerns; (2) that the Defendants violated the FWS’ own mandates by failing to properly manage and control depredating wolves in Wyoming; and (3) that Defendants have violated the Commerce Clause, the Tenth Amendment, and the Guarantee clause of the United States Constitution. On September 28, 2004 this Court issued a pretrial order establishing briefing schedules and deadlines. On September 21, 2004, the Wolf Coalition filed suit in the United States District Court for the District of Wyoming naming the Department of the Interior and FWS as defendants in the United States District Court, District of Wyoming. The Wolf Coalition consists of several groups including state and local governmental bodies, agricultural advocates, environmental groups and outdoor sporting groups. On November 8, 2004, the Sierra Club and Natural Resources Defense Council moved to intervene on behalf of the Defendants-their motion was granted the same day. The Wolf Coalition asserts, based on the facts enumerated above, several claims: (1) that the Defendants have violated the ESA and APA in their rejection of the Wyoming Plan by failing to consider the best scientific and commercial data available; (2) that Defendants violated the ESA, APA and NEPA by failing to manage and control the gray wolf population in Wyoming; (3) that the Defendants have violated NEPA by failing to prepare a Supplemental Environmental Impact Statement to address the impact of wolf populations outside of the Greater Yellowstone Area, and by requiring the State of Wyoming to adopt a wolf management plan that would require, encourage, support or manage gray wolves in areas located outside of the recovery area defined and studied in the Revised Plan, the FEIS and the Final Rule. The Wolf Coalition claims that it is entitled to declaratory and injunctive relief on all counts alleged, including a mandate that the Defendants comply with the ESA, NEPA and APA. On October 21, 2004, the Wolf Coalition moved pursuant to Fed.R.Civ.P. 42(a) and U.S.D.C.L.R. 42.1 to consolidate the case of Wyoming Wool Growers Assoc. et al. (Wolf Coalition) v. United States Dept. of the Interior et al. and Sierra Club, et al, Docket No. 04-CV-0253J with State of Wyoming et al. v. United States Dept. of Interior et al. and Greater Yellowstone Coalition et al, Docket No. 04-CV-0123-J. On November 18, 2004, this Court consolidated the two cases, and bifurcated the action into two distinct phases. The first round of briefing, with which we are now confronted, was limited to the Plaintiffs’ claims arising under the APA, and the Constitution of the United States. The Court also directed the Defendants to raise any jurisdictional claims in the first round of briefing. The second round of briefing, if needed, will address the merits of the Plaintiffs’ claims that the federal Defendants have failed to manage livestock and wild ungulate depredations attributed to the gray wolf population. Standard of Review The APA governs the review of the Plaintiffs’ and Plaintiff-Intervenors’ causes of action arising under the ESA. Under the APA, the reviewing court must set aside agency actions that are “ ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law* or if the action failed to meet statutory, procedural, or constitutional requirements.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 413-414, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)(quoting 5 U.S.C. § 706(2)(A)). The Tenth Circuit has held: the essential function of judicial review is a determination of (1) whether the agency acted within the scope of its authority, (2) whether the agency complied with prescribed procedures, and (3) whether the action is otherwise arbitrary, capricious or an abuse of discretion. CF & I Steel Corp. v. Economic Dev. Admin., 624 F.2d 136, 139 (10th Cir.1980); American Petroleum Inst. v. EPA, 540 F.2d 1023, 1029 (10th Cir.1976) (citing Overton Park, 401 U.S. at 415-17, 91 S.Ct. 814). Legal principles applicable in the first two determinations are straightforward. Determination of whether the agency acted within the scope of its authority requires a delineation of the scope of the agency’s authority and discretion, and consideration of whether on the facts, the agency’s action can reasonably be said to be within that range. Overton Park, 401 U.S. at 415-16, 91 S.Ct. 814. Determination of whether the agency complied with prescribed procedures requires a plenary review of the record and consideration of applicable law. See id. at 416-17, 91 S.Ct. 814. Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1574 (10th Cir., 1994). Discussion a. Plaintiffs’ APA Claims Plaintiffs allege that the Federal Defendants acted arbitrarily and capriciously when they rejected the Wyoming Plan. See 5 U.S.C. § 706(2)(A). Specifically, the Plaintiffs argue that the Federal Defendants violated mandates within the ESA that the Defendants rely solely on the “best science available.” See 16 U.S.C. § 1533(b)(1)(A); and 50 C.F.R. § 424.11(b). Plaintiffs allege standing under the ESA’s citizen-suit provision. See 16 U.S.C. § 1540(g)(1)(C). Namely the Plaintiffs argue that the Federal Defendants have failed to perform a non-discretionary act by rejecting the Wyoming Plan on the basis other than the “best science available.” As such the Plaintiffs claim that the Court has jurisdiction to review the Federal Defendants’ actions pursuant to the APA’s judicial review provision § 706, alleging that the Federal Defendants have both acted arbitrarily and capriciously and have “unlawfully withheld or unreasonably delayed” agency action. The Federal Defendants argue that the Court does not have jurisdiction under the APA, thus there is no basis for the Court to set aside and/or compel agency action. Specifically, the Federal Defendants point out that there has not been a “final agency action” to review. See 5 U.S.C. § 551(13). Furthermore, the Federal Defendants contend that the Court is not presented with a failure of the agency to take a discrete, required action. The Federal Defendants also argue that the Plaintiffs have not availed themselves of the statutory mechanisms by which to petition the DOI and FWS to delist the gray wolf. See 16 U.S.C § 1533(b)(3)(A)-(C); 50 C.F.R. § 424.14. The Federal Defendants further assert that the purported “rejection” of the Wyoming Plan was not an agency action, under the legal definition of the concept. See generally Norton et al. v. Southern Utah Wilderness Alliance et al., 542 U.S. 55, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004) [hereinafter SUWA ]. Plaintiffs allege that the letter sent by FWS to Wyoming on January 13, 2004, notifying the Plaintiffs of the deficiencies within the Wyoming Plan constituted final agency action for purposes of the APA. The Plaintiffs claim that the Defendants’ letter presented them with a “Hobson’s choice-make the demanded changes or [] seek legal redress for the illegal rejection of the Wyoming Plan.” The Plaintiffs also claim that the Federal Defendants’ rejection of the Wyoming Plan will have “permanent and significant effects on Wyoming’s other wildlife resources.” Furthermore, the Plaintiffs claim that the letter marked the consummation of the decision making process because it was neither tentative nor interlocutory in nature. The Plaintiffs further argue that the mandatory nature of the letter’s language compelling Wyoming to amend certain aspects of the Wyoming Plan demonstrates that the Defendants’ decision on the matter was foreclosed to further deliberation. The Plaintiffs also argue that the rejection determines its legal rights and obligations insofar as the delay caused by not delisting infringes upon Wyoming’s sovereignty by preventing Wyoming from assuming management authority over the gray wolves living within the frontiers of Wyoming itself. The Defendants counter that the letter was simply one step in a multi-faceted decision of whether to propose delisting or not, thus it cannot be considered final. The Defendants also note that the letter has not determined the “rights and obligations” of the Plaintiffs. The Defendants argue that the letter simply provides recommendations to address the concerns of FWS regarding the adequacy of the Wyoming Plan. Furthermore, the Defendants claim that the letter did not change the status quo, thus cannot be properly characterized as final agency action. The Defendants also assert that the only action in a determination not to delist a species under the ESA would come after a petition had been filed pursuant to 50 C.F.R. § 424.14. The Defendants argue that the letter is properly characterized as an interlocutory decision bearing on only one aspect of the delisting process. To satisfy the statutory requirements for judicial review under the APA, a plaintiff must establish that the challenged action is “final agency action.” Colorado Farm Bureau Fed’n v. United States Forest Serv., 220 F.3d 1171, 1173 (10th Cir.2000). The APA defines “agency action” as: “including] the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to aet[.]” 5 U.S.C. § 551(13). To be considered final agency action, for the purposes of the APA, “two conditions must be satisfied for an agency action to be ‘final’: First, the action must mark the ‘consummation’ of the agency’s decisionmaking process.. .it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which ‘rights and obligations have been determined,’ or from which ‘legal consequences will flow[.]’ ” Bennett v. Spear, 520 U.S. 154, 177-78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). Plaintiffs have the burden of identifying specific federal conduct and explaining how it is “final agency action” within the meaning of 5 U.S.C. § 551(13). Colorado Farm Bureau Fed’n, 220 F.3d at 1173 (citations omitted). In determining whether the letter in question is final agency action, for purposes of the APA, the text of the letter is quite instructive. The letter contains the following: “If requested, the [FWS] will assist the [Wyoming] Department [of Fish & Game] in implementing the three changes noted above.” This sentence obviously contemplates more cooperation between Wyoming and the Federal Defendants. The language is interlocutory in nature, and not the culmination of a decision-making process-such as whether to delist the wolf. See Colorado Farm Bureau Fed’n, 220 F.3d at 1174. The letter also contemplates Wyoming working with FWS biologists “to prepare a proposal to delist wolves when adequate management plans are approved.” Thus demonstrating that the approval, or rejection of the Wyoming Plan was not the penultimate decision or action to be made for delisting the gray wolf. It is well settled that the decision to de-list includes five categories-the January 13 letter covers only one of those categories. See 16 U.S.C. §§ 1533(a)(l)(A-E). The Plaintiffs and Plaintiff-Intervenors argue that the Federal Defendants failed to apply the “best science available” mandate when they rejected the Wyoming Plan. The Plaintiffs and Plaintiff-Interve-nors point to the January 13, 2003 letter as establishing the Federal Defendants’ illegal determination that the Wyoming Plan was inadequate to preserve the recovered population of gray wolves within the borders of Wyoming. The Plaintiffs and Plaintiff-Intervenors assert that the Federal Defendants’ failure to use the best science available standard was arbitrary and capricious under 5 U.S.C. § 706(2)(A). The Plaintiffs ask this Court to reverse the determination of the Federal Defendants and to force them, through an injunction, to propose a delisting of the gray wolf. The Federal Defendants deny that they were under a mandatory duty to apply the best science available mandate to the decision contained in the letter. The Federal Defendants argue that the decision did not come under the guise of a status review, or as an agency response to a petition to delist the species. Thus, the mandate contained within the statute does not apply to the decision reached by the agency in the letter. The best science available standard is not a general mandate to the Federal Defendants. In fact, the standard only applies to discrete statutory and regulatory decisions entrusted to the Federal Defendants. See 50 C.F.R. § 424.14 (petition); and 50 C.F.R. § 424.21. The mandate itself provides: The Secretary shall make determinations required by subsection (a)(1) solely on the basis of the best scientific and commercial data available to him after conducting a review of the status of the species and after taking into account those efforts, if any, being made by any State or foreign nation, or any political subdivision of a State or foreign nation, to protect such species, whether by predator control, protection of habitat and food supply, or other conservation practices, within any area under its jurisdiction, or on the high seas. 16 U.S.C. § 1533(b)(1)(A). The determinations that the Secretary is required to make are: The Secretary shall by regulation promulgated in accordance with subsection (b) determine whether any species is an endangered species or a threatened species 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 (E) other natural or manmade factors affecting its continued existence. 16 U.S.C. § 1533(a)(1). The regulations promulgated by the Secretary include two basic mechanisms that trigger a determination to change the status of a species: petition or status review. Thus, the “best science available” mandate would only attach to the Federal Defendants’ decision contained in the January 13, 2004 letter as a result of a status review or petition to delist. Both parties agree that neither the Plaintiffs nor the Plaintiff-Intervenors filed a petition to delist the gray wolf. Indeed, at oral argument the Plaintiffs were adamant that such a requirement would elevate form over function. The Plaintiff-Intervenors argued that filing a petition would be futile because they already knew what determination the Federal Agencies involved would make. These arguments fail to recognize the significance of the petition process. The petition process strikes a delicate balance between judicial review, agency expertise and the public’s right to a healthy, sustainable ecosystem which fosters biological diversity. The petition process sets up mandatory bright lines of both timing and behavior that are readily open to judicial review. See 16 U.S.C. § 1633(b)(3)(C)(ii). The Plaintiffs or the Defendants cannot create a defacto petition process that ignores the legislative mandates found in the ESA. This attempt circumvents important safeguards, such as “best science available,” timetables for agency action, and judicial review. The Plaintiffs did not avail themselves of the petition process, and thus cannot now claim the protections provided therein. This is a necessary result of this Court’s limited jurisdiction under § 706(2)(A). The other legislative mechanism that triggers the best science available mandate is the status review, contemplated by 50 C.F.R. § 424.21, which provides: At least once every 5 years, the Secretary shall conduct a review of each listed species to determine whether it should be delisted or reclassified. Each such determination shall be made in accordance with §§ 424.11, 424.16, and 424.17 of this part, as appropriate. A notice announcing those species under active review will be published in the Federal Register. Notwithstanding this section’s provisions, the Secretary may review the status of any species at any time based upon a petition (see § 424.14) or upon other data available to the Service. 50 C.F.R. § 424.21. The Plaintiffs argue that the Secretary was conducting this type of review, and thus triggered the “best science available” mandate. They claim that the decision rejecting the Wyoming Plan was part of a status review as reflected in the January 13, 2004 letter. The Federal Defendants point out that a status review, as contemplated by the statutes and regulations, was conducted in 2003 and led to the eventual downlisting of the gray wolf from endangered to threatened. 68 Fed.Reg. 15,806-15,875. Thus, the Federal Defendants argue, the next status review mandated by statute is due to occur in 2008. The Court is satisfied that the decision contained in the letter did not come in conjunction with a status review as mandated by the regulations. Throughout the lengthy administrative record there is no mention of such a review taking place, and absolutely no citation to the regulation or statute which governs status reviews. The Plaintiffs’ attempt to paint the Federal Agencies’ actions as coming under a status review is unsupported by the record. Simply put, the letter and the decision contained therein do not rest on a statutory or regulatory foundation. The letter is not the full determination of a status review. -Nor is the letter an action taken pursuant to a petition to delist. Without such a basis, this Court cannot attach conditions or legal significance to the letter or the opinion it contains. That is not to say that the Plaintiffs did not have expectations regarding the effect that promulgating the Wyoming Plan would have on the Federal Defendants’ decision to delist the gray wolf. However, these expectations are irrelevant for the purposes of determining jurisdiction under the APA. This becomes evident when examined in light of the Supreme Court’s jurisprudence related to estopping the government. See Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed. 10 (1947) (announcing the doctrine that the Government may not be estopped); and Schism v. U.S., 316 F.3d 1259 (Fed.Cir.2002), cert. denied 539 U.S. 910, 123 S.Ct. 2246, 156 L.Ed.2d 125 (2003). The State may have had expectations but they were not based on a legislative obligation to delist nor were they based on the affirmative misconduct of the agencies involved. See generally Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 110 S.Ct. 2465, 110 L.Ed.2d 387 (1990) (holding that the Government could be estopped with a showing of “affirmative misconduct”). This Court cannot review the actions of the Federal Defendants under § 706(2)(A) for failing to apply the best science available because the decision made by the agency did not implicate that statutory prerogative. Furthermore, Wyoming argues that any delay in delisting of the gray wolf infringes upon Wyoming’s sovereignty by preventing Wyoming from assuming management authority over the gray wolves in Wyoming. This argument is problematic on several levels. The most obvious deficiency is that Wyoming’s purported sovereignty in this area has been unmistakably preempted by Congress. See Gibbs v. Babbitt, 214 F.3d 483, 493 (4th Cir.2000), cert. denied 531 U.S. 1145, 121 S.Ct. 1081, 148 L.Ed.2d 957 (2001). Therefore, Wyoming’s claim to sovereignty as to threatened or endangered species lacks legal foundation. Moreover, if there was some type of injury to Wyoming’s sovereignty, it occurred on the date that the wolves traversed onto Wyoming land not upon receipt of the letter in question. Thus, the injury complained of flows not from the FWS’s letter, but rather from the initial decision to release wolves back into the ecosystem-a valid exercise of Congress’ power under the Commerce Clause. The Plaintiff-Intervenors also argue that the delay of not delisting causes serious harm to the wild ungulate population and livestock because the Federal Defendants have failed to manage the gray wolf. This argument was also advanced by the State of Wyoming. This argument suffers from the same causation problem noted above; namely that the letter did not create the legal consequence complained of. See discussion below. Nor could the letter be considered a consummation of the agency’s decision making process. The Federal Defendants’ decision making processes are clearly delineated in statute and regulation. See 50 C.F.R. § 424.14. The letter is not in response to a petition by the Plaintiffs, nor does it purport to establish a likely outcome of such a petition. The decision complained of by the Plaintiffs, while a product of deliberation, does not rise to the level of decision making that is contemplated by the APA, and thus renewable as final agency action. See City of Arcadia v. U.S. Environmental Protection Agency, 265 F.Supp.2d 1142 (N.D.Cal.2003). The Plaintiffs have failed to show that the January 13, 2004 letter constituted final agency action and the Court does not have jurisdiction over the Plaintiffs’ and Plaintiff-Intervenors’ claims purportedly arising under the APA. See Chemical Weapons Working Group, Inc. v. U.S. Dep’t of the Army, 111 F.3d 1485, 1494 (10th Cir.1997) (dismissal for lack of APA standing was correct since plaintiffs failed to explain how agency conduct was “agency action” under section 551(13)). (а) Agency Action Unreasonably Delayed or Unlawfully Withheld (i) Mandatory Duty to Delist the Gray Wolf The Defendants claim that this Court does not have jurisdiction to hear the Plaintiffs’ claims arising under the APA, specifically § 706(1), because the Defendants were not required to propose de-listing of the gray wolves or control wolf depredation. The Defendants argue that § 706(1) can only be employed to enforce mandatory, nondiscretionary duties. That being the case, the Defendants argue that the ESA does not require the Defendants to approve the Wyoming Plan nor to propose delisting a species. The Defendants point out that they have complied with regulations requiring them to downlist or delist the gray wolf after three years of recovery. See 68 Fed. Register 15,804. The Plaintiffs contend that the Defendants were under a mandatory duty to base their decision on delisting of the gray wolf, and thus their evaluation of the Wyoming Plan, on the “best scientific evidence” available. In order to invoke jurisdiction under § 706(1), the Plaintiffs must demonstrate that the agency failed to perform an act that was legally required. SUWA, 124 S.Ct. at 2379. Section 706(1) “empowers a court to compel an agency to perform a ministerial or nondiscretionary act, or to take action upon a matter, without directing how it shall act.” Id. (citations and internal quotation marks omitted). Thus, predicate to any action by this Court to compel agency action must be the Plaintiffs’ establishment that the agency has unlawfully failed to act. As the Court remarked: [The] principal purpose of the APA limitations we have discussed — and of the traditional limitations upon mandamus from which they were derived — is to protect agencies from undue judicial interference with their lawful discretion, and to avoid judicial entanglement in abstract policy disagreements which courts lack both expertise and information to resolve. If courts were empowered to enter general orders compelling compliance with broad statutory mandates, they would necessarily be empowered, as well, to determine whether compliance was achieved — which would mean that it would ultimately become the task of the supervising court, rather than the agency, to work out compliance with the broad statutory mandate, injecting the judge into day-to-day agency management. SUWA, 124 S.Ct. at 2381. Thus, “failure to act” means “that an agency has failed to take a discrete agency action that it is required to take.” Id. at 2379. The policy behind this is clear, namely: “To protect agencies from undue judicial interference with their lawful discretion and to avoid judicial entanglement.” Id. at 2381. It is not the role of the courts to conduct a “general judicial review” of agency actions. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 899, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). The Plaintiffs’ arguments misinterpret the mechanisms by which a species can be listed, delisted, or downlisted under the ESA. The letter sent by the FWS, indeed the entire process engaged in between the respective parties, does not have a coordinate statutory regime. The ESA provides for, essentially, three processes by which a species may have its status changed. The first and most obvious way is for the responsible agency to propose, through rule-making procedures, that a species’ status under the ESA be changed. See 50 C.F.R. § 424.10 (“The Secretary may add.... ”). Furthermore, an interested person may petition the responsible agency to add a species to the lists, delete a species from the lists or change the listed status of a species. See 50 C.F.R. § 424.14; and 5 U.S.C. § 553(e); see also generally Hill v. Tennessee Valley Authority, 549 F.2d 1064 (6th Cir.1977), aff'd 437 U.S. 153, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978) (superseded by statute as stated in Board of Governors of Federal Reserve System v. Dimension Financial Corp., 474 U.S. 361, 106 S.Ct. 681, 88 L.Ed.2d 691 (1986)) and (superseded by statute on other grounds as stated in Pyramid Lake Paiute Tribe of Indians v. United States Dep’t of Navy 898 F.2d 1410 (9th Cir.1990)) and (superseded by statute on other grounds as stated in Pacific Rivers Council v. Thomas 30 F.3d 1050 (9th Cir.1994)). Third, the Secretary must conduct a review of the status of species 'on the lists every five years pursuant to 16 U.S.C. § 1533(c)(2). See e.g. 68 Fed. Register 15,804. As discussed above, the Federal Defendants have not proposed a change in status for the gray wolves, nor have the Plaintiffs petitioned for a change in status. Simply put, there is no categorical imperative that commands the Secretary to propose that the gray wolf be delisted. Without a mandate to delist, the Court simply does not have jurisdiction to review the agency action in this case. See generally SUWA. Nor can this Court force the Federal Defendants to apply the “best science available” to actions that are not within the ESA’s statutory scheme. The “best science available” mandate written into the ESA does not control decisions of the Secretary until a change in status is proposed, either by the Secretary, or through the statutory petition meeha-nism-an action which has not been taken in this case. It seems that in this situation, the Defendants were simply investigating the possibility of proposing a rule that would eventually delist the gray wolf. In that scenario, 50 C.F.R. § 424.13 controls, which provides: When considering any revision of the lists, the Secretary shall consult as appropriate with affected States, interested persons and organizations, other affected Federal agencies, and, in cooperation with the Secretary of State, with the country or countries in which the species concerned are normally found or whose citizens harvest such species from the high seas. Data reviewed by the Secretary may include, but are not limited to scientific or commercial publications, administrative reports, maps or other graphic materials, information received from experts on the subject, and comments from interested parties. Under this regulation, the Defendants should not be limited to the “best science available” when reviewing the data relevant to revising the lists. Nor does this regulation provide that the Secretary must approve a state’s management strategy. Alternatively, the Plaintiffs argue that the Defendants have not complied with the ESA requirement to review the status of listed species, pursuant to 16 U.S.C. § 1533(c). The Plaintiffs argue that this review is mandatory, and thus a discrete action that the Defendants were required to take by law. This argument is not well taken. As discussed above, by all accounts, such a review was taken, and the Defendants did indeed change the status of the gray wolf in the western DPS from endangered to threatened. 68 Fed. Register 15,804 (April 1, 2003). A claim based on a status review would only become ripe in 2008, given the statutory mandate to review the status of listed species every five years. The Federal Defendant’s were not compelled by statute or regulation to approve the Wyoming Plan, nor did the “best science available” mandate attach to their decision making process. (ii) Mandatory Duty to Control Wolf Depredations The Plaintiff-Intervenors claim that jurisdiction over the Federal Defendants’ alleged failure to manage wolf depredations is proper under § 706(1). The Federal Defendants claim that they are not under a mandatory duty to control gray wolf depredations. In order to invoke jurisdiction under § 706(1), the Plaintiffs must demonstrate that the agency failed to perform an act that was legally required. SUWA, 124 S.Ct. at 2379. Section 706(1) “empowers a court to compel an agency to perform a ministerial or non-discretionary act, or to take action upon a matter, without directing how it shall act.” Id. (citations and internal quotation marks omitted). Thus, predicate to any action by this Court to compel agency action must be the Plaintiffs’ establishment that the agency has unlawfully failed to act. As the Court remarked: [The] principal purpose of the APA limitations we have discussed — and of the traditional limitations upon mandamus from which they were derived — is to protect agencies from undue judicial interference with their lawful discretion, and to avoid judicial entanglement in abstract policy disagreements which courts lack both expertise and information to resolve. If courts were empowered to enter general orders compelling compliance with broad statutory mandates, they would necessarily be empowered, as well, to determine whether compliance was achieved — which would mean that it would ultimately become the task of the supervising court, rather than the agency, to work out compliance with the broad statutory mandate, injecting the judge into day-to-day agency management. SUWA 124 S.Ct. at 2381. Thus, “failure to act” means “that an agency has failed to take a discrete agency action that it is required to take.” Id. at 2379. The policy behind this is clear, namely: “To protect agencies from undue judicial interference with their lawful discretion and to avoid judicial entanglement.” Id. at 2381. It is not the role of the courts to conduct a “general judicial review” of agency actions. Lujan, 497 U.S. at 899, 110 S.Ct. 3177. The Plaintiff-Intervenors have failed to demonstrate that the Federal Defendants have a mandatory duty to control wolf depredations. The Court has examined the Plaintiff-Intervenors’ reply brief very carefully and it is unable to find a reference to any regulation or statute that would create a non-discretionary duty requiring FWS to control depredations. In fact a review of the relevant regulations clearly demonstrates that the Federal Defendants are not mandated to control wolf depredations: (v) The Service, or agencies authorized by the Service, may promptly remove (place in captivity or kill) any wolf the Service or agency authorized by the Service determines to present a threat to human life or safety. * * * -l- * * (vii) The Service or agencies designated by the Service may take wolves that are determined to be “problem” wolves. * * * * * * (ix) Service or other Federal, State, or tribal personnel may receive written authorization from the Service to take animals under special circumstances. Wolves may be live captured and tran-slocated to resolve demonstrated conflicts with ungulate populations or with other species listed under the Act, or when they are found outside of the designated experimental population area. Take procedures in such instances would involve live capture and release to a remote area or placement in a captive facility, if the animal is clearly unfit to remain in the wild. Killing of wolves will be a last resort and is only authorized when live capture attempts have failed or there is clear endangerment to human life. (xi) Any employee or agent of the Service or appropriate Federal, State, or tribal agency, who is designated in writing for such purposes by the Service, when acting in the course of official duties, may take a wolf from the wild within the experimental population area... 50 C.F.R. §§ 17.84(i)(3)(v), (vii), (ix) and (xi)(emphasis added). Frankly put, the Plaintiff-Intervenors have not demonstrated that the Federal Defendants are under a discrete non-ministerial duty to control the depredations. The only arguably mandatory actions that FWS must take are related to “chronic problem wolves.” See 50 C.F.R. § 17.84(i)(3)(vii). That is not to say that the Federal Defendants do not have the authority to control wolf depredations. However, the authority granted to the Federal Defendants is discretionary in nature. The regulations clearly demonstrate a legislative choice to create discretion on how to deal with the gray wolf depredation and human-wolf conflicts. As such, this Court lacks jurisdiction over these claims pursuant to the APA. See SUWA; and 5 U.S.C. § 706(1). The Plaintiffs’ and Plaintiff-Intervenors’ complaint are really broad programmatic attacks on how the Federal Defendants are exercising their discretionary authority. This type of claim is not cognizable under the APA. See SUWA, 124 S.Ct. at 2379-2380 (“The limitation to discrete agency action precludes the kind of broad programmatic attack we rejected in Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990).”). As the Court noted in SUWA: The limitation to required agency action rules out judicial direction of even discrete agency action that is not demanded by law (which includes, of course, agency regulations that have the force of law). Thus, when an agency is compelled by law to act within a certain time period, but the manner of its action is left to the agency’s discretion, a court can compel the agency to act, but has no power to specify what the action must be. For example, 47 U.S.C. § 251(d)(1) [47 USCS § 251(d)(1) ], which required the Federal Communications Commission “to establish regulations to implement” interconnection requirements “[wjithin 6 months” of the date of enactment of the Telecommunications Act of 1996, would have supported a judicial decree under the APA requiring the prompt issuance of regulations, but not a judicial decree setting forth the content of those regulations. SUWA, 124 S.Ct. at 2380. Without a mandate the Plaintiff-Inter-venors cannot assert a renewable claim under 5 U.S.C. § 706(1). b. NEPA Claims The Plaintiff-Intervenors argue that the Federal Defendants have violated their duties under NEPA to supplement the environmental impact statement (EIS) for the original agency action analyzed in the final EIS (FEIS) pertaining to the 1994 rule which adopted the Western Recovery Plan for the gray wolf. The Plaintiff-Intervenors assert that the Federal Defendants have never taken the requisite “hard look” at the environmental consequences of their demand that the gray wolf be protected throughout the State of Wyoming. The Federal Defendants argue that they completed the FEIS as part of the 1994 Rule and that is all that is required under NEPA. The Defendants contend that there is no ongoing obligation for the Federal Government to supplement an FEIS every time new information emerges. The Defendants assert that the federal regulations related to NEPA simply require that an FEIS be available before decisions are made and before actions are taken. Thus, the Defendants argue that after reintroduction of the gray wolf has taken place, no other federal action is left to occur. The Defendants urge the Court to follow SUWA. In SUWA the Court held that supplementation under NEPA is “necessary only if there remains major Federal action to occur[.]” SUWA, 124 S.Ct. at 2385 (internal quotations marks omit-tedXquoting Marsh v. Oregon Natural Resources Council et al., 490 U.S. 360, 374, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989)). The Federal Defendants conclude that after the 1994 Rule was promulgated, there remains no more “major federal action” to take place. The Court agrees. Those seeking to enforce procedural requirements under NEPA must rely on the APA; NEPA (unlike the ESA) confers no private right of action. Committee to Save the Rio Hondo v. Lucero, 102 F.3d 445, 447. (10th Cir.1996). The Plaintiff-Intervenors must therefore satisfy the “statutory standing” requirements of the APA. Utah v. Babbitt, 137 F.3d 1193, 1203 (10th Cir.1998). Specifically, they must establish that Defendants took “final agency action for which there is no other adequate remedy in court.” 5 U.S.C. § 704; Lujan, 497 U.S. at 882, 110 S.Ct. 3177; and Colorado Farm Bureau Fed’n, 220 F.3d at 1173. The Plaintiff-Intervenors have failed to establish that the there has been a final agency action in this case which would implicate NEPA. As discussed above, the January IS, 2004 letter does not constitute final agency action for the purposes of the APA. The Plaintiff-Intervenors’ additional claim that the “[Federal] Defendants’ demand that the State of Wyoming adopt a plan for the purpose of protecting the gray wolf population outside of the Yellowstone Recovery Area” is not supported by the record. The Plaintiff-Intervenors are attempting to manipulate the actions of the Federal Defendants into a NEPA claim. The only action taken by the Federal Defendants was to inform the State of Wyoming that the Wyoming Plan was insufficient, in then- opinion, to sustain the recovered gray wolf population. Plaintiff-Intervenors have failed to meet their burden of identifying a “final agency action” as defined in section 551(13) for us to review. They therefore lack the statutory standing required to bring this claim under the APA. See, e.g., Chemical Weapons Working Group, Inc., 111 F.3d at 1494 (dismissal for lack of APA standing was correct since plaintiffs failed to explain how agency conduct was “agency action” under section 551(13)). Assuming, ar-guendo, that the Plaintiff-Intervenors have alleged a final agency action under the APA, their claim still fails under the rule announced in SUWA. NEPA requires a federal agency to prepare an initial environmental impact statement as part of any “proposals for legislation and other major Federal actions significantly affecting the quality of the human environment.” See 42 U.S.C. § 4332(2)(C). As the Court cited in SUWA: Often an initial EIS is sufficient, but in certain circumstances an EIS must be supplemented. See Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 370-374, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). A regulation of the Council on Environmental Quality requires supplementation where “[t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.” 40 CFR § 1502.9(c)(l)(ii) (2003). In Marsh, we interpreted § 4332 in light of this regulation to require an agency to take a “hard look” at the new information to assess whether supplementation might be necessary. SUWA, 124 S.Ct. at 2384 (citations partially omitted). As the Court intimates above, requirements for a supplemental EIS are controlled by 40 C.F.R. § 1502.9(c)(l)(i)-(ii), which provides: (c) Agencies: (1) Shall prepare supplements to either draft or final environmental impact statements if: (i) The agency makes substantial changes in the proposed action that are relevant to environmental concerns; or (ii) There are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts. The Plaintiffs-Intervenors’ contentions that the Federal Defendants need to supplement the EIS because the range of the wolf is being increased does not implicate the types of major actions contemplated by NEPA. Compare Marsh (building a dam). Nor does their assertion comport with the regulation promulgated for wolf reintroduction, Section 17.84(i