WildEarth Guardians v. Lane

WILDEARTH GUARDIANS, Plaintiff, v. JAMES LANE, Director of the New Mexico Department of Game and Fish, sued in his official capacity and JIM McCLINTIC, Chairman of the New Mexico State Game Commission, sued in his official capacity, Defendants and NEW MEXICO TRAPPERS ASSOCIATION, NEW MEXICO COUNCIL OF OUTFITTERS & GUIDES, INC NEW MEXICO FARM & LIVESTOCK BUREAU, COALITION OF ARIZONA/NEW MEXICO COUNTIES FOR STABLE ECONOMIC GROWTH, UNITED SPORTSMEN FOR FISH AND WILDLIFE, INC. NEW MEXICO CATTLE GROWERS' ASSOCIATION, NEW MEXICO WOOL GROWERS, INC., AND NEW MEXICO FEDERAL LANDS COUNCIL, Defendant-Intervenors, and ARIZONA GAME AND FISH COMMISSION, Amicus Curiae.

No. CIV 12-118 LFG/KBM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

Dated: December 4, 2012

AMENDED MEMORANDUM OPINION AND ORDER¹,²

THIS MATTER is before the Court on Defendants' motion to dismiss³ [Doc. 19] and the parties' and intervenors' cross motions for summary judgment [Doc. Nos. 11, 71, 72.] The motions are fully briefed. [Doc. Nos. 47, 49, 58, 60, 83, 89.] The Court determines that oral argument is not necessary. After careful consideration of the pertinent law, pleadings and attachments, intervenors' pleadings,⁴ the parties' errata and additional declarations, along with the amicus curiae briefing, the Court concludes that Defendants' motion to dismiss should be granted. Additionally, the Court concludes that summary judgment should be granted in favor of Defendants.

Procedural Summary

On February 7, 2012, Guardians filed its Complaint for Declaratory and Injunctive Relief ("complaint") against Defendant James Lane, Director of the New Mexico Department of Game and Fish, and Jim McClintic, Chairman of the New Mexico State Game Commission ("Defendants" or "Defendant Lane" or "Defendant McClintic"). [Doc. 1.] Guardians challenges Defendants'"continued authorization of trapping within the occupied range of the critically endangered Mexican gray wolf . . . without exercising due care to avoid trapping these wolves." [Id., at 1.] Guardians alleges that Defendants are in violation of specific sections of the Endangered Species Act ("ESA") and seeks a declaratory judgment to this effect and an injunction requiring Defendants to comply with the law. [Id., at 1-2.]

Specifically, Guardians' Complaint seeks declarations that Defendants Lane and McClintic violated and continue to violate 16 U.S.C. § 1538(a)(1)(B) (or ESA § 9) and 50 C.F.R. § 17.84(k) (or special rule) by authorizing trapping within occupied wolf range without first exercising due care to avoid taking a Mexican gray wolf. Guardians also requests an injunctive order requiring that Defendants exercise due care to avoid taking Mexican gray wolves before authorizing any trapping within occupied wolf range. [Doc. 1, at 15-16.]

On April 6, 2012, Guardians filed a motion for summary judgment. That motion is fully briefed. [Doc. Nos. 11, 31, 32, 43, 44, 45, 46, 58, 59.] On April 23, 2012, in lieu of filing an answer, Defendants filed a motion to dismiss. [Doc. Nos. 19, 23, 29, 33, 48, 49.] On July 23, 2012, the Court directed Defendants to file a cross motion for summary judgment, in accordance with Defendants' statement that they planned to file their own cross motion. [Doc. 31, n.1.] That motion also is fully briefed. [Doc. Nos. 65, 71, 77, 82, 88.] Proposed intervenors were allowed to participate and filed a separate cross motion. [Doc. Nos. 72, 78, 85.] The Arizona Game and Fish Commission was allowed to file an amicus curiae brief. [Doc. Nos. 76, 81, 88.] The Court considered all of the pleadings, with attachments, for purposes of summary judgment.

Mexican Gray Wolf (Canis lupus baileyi)

The Mexican gray wolf or "lobo," is "the smallest, rarest, and most genetically distinct subspecies of gray wolf." Wildearth Guardians v. U.S. Forest Serv., 668 F. Supp. 2d 1314, 1319(D.N.M. 2009). The Mexican gray wolf once numbered in the thousands across much of New Mexico, Arizona, Texas, and northern Mexico until "federal eradication efforts undertaken to benefit the livestock indirectly drove the subspecies to near extinction." Id. (citation omitted).

In April 1976, the Mexican gray wolf was listed as an endangered subspecies. Wyo. Farm Bureau Fed'n v. Babbitt, 199 F.3d 1224, 1238 n. 11 (10th Cir. 2000) (citing 63 Fed. Reg. 1752 (Jan. 12, 1998)).

Like the irremotus [Northern Rocky Mountain Wolf] listing, this listing was superceded by the 1978 reclassification designating the entire species of gray wolf as endangered. However, unlike irremotus, identifiable, captive populations of the Mexican gray wolf exist and are the subject of an independent reintroduction program in east-central Arizona and west-central New Mexico. . . .

Id. (citations omitted). The gray wolf species in North America, south of Canada, was listed as endangered in March 1978, except in Minnesota where it was listed as threatened. 63 Fed. Reg. 1752. The subspecies of the Mexico gray wolf "is now considered extirpated from its historic range in the south western United States because no wild wolf has been confirmed since 1970." Id. at 1753.

A "Mexican Wolf Recovery Plan" was adopted in 1982, with an objective "to conserve and ensure survival of the Mexican gray wolves by maintaining a captive breeding program and re-establishing a viable, self-sustaining population of at least 100 Mexican wolves in a 5,000 square mile area within the subspecies' historic range." Id. The captive breeding program was initiated between 1977 and 1980. (See additional discussion infra under "special rule".)

Endangered Species Act ("ESA")

"Congress enacted the Endangered Species Act in 1973 'to provide for the conservation, protection, restoration and propagation of species of wildlife facing extinction.'" Wyo. Farm BureauFed'n, 199 F.3d at 1231 (internal citation omitted) (emphasis in original). "When Congress passed the Act in 1973, it was not legislating on a clean slate." Tennessee Valley Authority v. Hill, 437 U.S. 153, 174-75 (1978). For example, in 1966 and 1969, Congress passed legislation intended to protect endangered species. Id.

Despite the fact that the 1966 and 1969 legislation represented "the most comprehensive of its type to be enacted by any nation" up to that time, Congress was soon persuaded that a more expansive approach was needed if the newly declared national policy of preserving endangered species was to be realized. By 1973, when Congress held hearings on what would later become the Endangered Species Act of 1973, it was informed that species were still being lost at the rate of about one per year, 1973 House Hearings 306 (statement of Stephen R. Seater, for Defenders of Wildlife), and "the pace of disappearance of species" appeared to be "accelerating." H.R.Rep.No.93-412, p. 4 (1973). Moreover, Congress was also told that the primary cause of this trend was something other than the normal process of natural selection:

"[M]an and his technology has [sic] continued at an ever-increasing rate to disrupt the natural ecosystem. This has resulted in a dramatic rise in the number and severity of the threats faced by the world's wildlife. The truth in this is apparent when one realizes that half of the recorded extinctions of mammals over the past 2,000 years have occurred in the most recent 50-year period." 1973 House Hearings 202 (statement of Assistant Secretary of the Interior).

Id. at 175-76. "As it was finally passed, the Endangered Species Act of 1973 represented the most comprehensive legislation for the preservation of endangered species ever enacted by any nation." Id. at 180.

The ESA protects 3 categories of species: 1) endangered (in danger of extinction throughout all or a significant portion of its range); 2) threatened (likely to become an endangered species within the foreseeable future, and (3) an essential or experimental, nonessential ("ENE") population (an endangered species or a threatened species outside of the current range of such species). Animal Welfare Inst. v. Martin, 588 F. Supp. 2d 70, 97-98 (D. Me. 2008) (citation omitted). "Endangeredspecies are entitled to the highest level of protection. Threatened species 'are afforded fewer protections than endangered species.'" Id. (internal citations omitted). "Experimental populations are treated similarly to threatened species with some defined exceptions." Id. at 98 n. 20 (citation omitted).

Once a species or subspecies is listed as endangered, the ESA prohibits "taking" the species. 16 U.S.C. § 1538(a)(1)(B) (or referred to as ESA § 9). The ESA defines "take" as: "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct." 16 U.S.C. § 1532(19). Although the ESA expressly prohibits taking an endangered species, the Act does not expressly prohibit taking a threatened species. Animal Welfare, 588 F. Supp. 2d at 98, n.21. However, the ESA allows the United States Fish and Wildlife Service ("FWS") to promulgate rules that "provide for the conservation" of threatened species. Id. (citing 16 U.S.C. § 1533(d)). With respect to experimental populations, the regulations provide that "[a]ny population determined by the Secretary to be an experimental population shall be treated as if it were listed as a threatened species for purposes of establishing protective regulations under section 4(d) of the Act with respect to such population." 50 C.F.R. § 17.82.

USFWS has issued a blanket regulation that applies all prohibitions applicable to endangered species to threatened species, unless the agency has issued a special rule, a § 4(d) Rule, for a specific species. 50 C.F.R. § 17.31. Whether the distinction between endangered and threatened species allows for distinctions in regulation is the source of some controversy. See Sierra Club v. Clark, 755 F.2d 608, 612-19 (8th Cir. 1985). . . .

Animal Welfare, 588 F. Supp. 2d at 98, n.21.

In 1982, Congress amended the ESA to broaden the FWS's discretion to reintroduce...