Cnty. Comm'rs of Sierra v. United States Dep't of Interior, Civ. 21-611 GBW/CG

CourtUnited States District Courts. 10th Circuit. District of New Mexico
Writing for the CourtGREGORY B. WORMUTH UNITEDSTATES MAGISTRATE JUDGE
PartiesCOUNTY COMMISSIONERS OF THE COUNTY OF SIERRA, et al., Petitioners, v. UNITED STATES DEPARTMENT OF THE INTERIOR, et al., Respondents.
Docket NumberCiv. 21-611 GBW/CG
Decision Date14 July 2022

COUNTY COMMISSIONERS OF THE COUNTY OF SIERRA, et al., Petitioners,
v.

UNITED STATES DEPARTMENT OF THE INTERIOR, et al., Respondents.

Civ. No. 21-611 GBW/CG

United States District Court, D. New Mexico

July 14, 2022


ORDER GRANTING MOTION TO DISMISS

GREGORY B. WORMUTH UNITEDSTATES MAGISTRATE JUDGE

THIS MATTER comes before the Court on Respondents' Motion to Dismiss and Memorandum in Support (doc. 37) and Petitioners' Motion to Complete or Supplement the Administrative Record or Complete Discovery (doc. 48). Having considered the Motions and their briefing (see docs. 44, 46, 58; docs. 54, 60) and conducted a hearing on Petitioners' Motion, see doc. 65, and being otherwise fully advised, the Court GRANTS Respondents' Motion to Dismiss and DENIES Petitioners' Motion to Complete or Supplement the Administrative Record as MOOT.

I. Background

Mexican wolves, the smallest surviving subspecies of gray wolf in North America, have been listed as an endangered subspecies pursuant to the Endangered Species Act (ESA), 16 U.S.C. § 1531, et seq., since 1976. See Determination that Two Species of Butterflies are Threatened Species and Two Species of Mammals are

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Endangered Species, 41 Fed.Reg. 17736, 17738 (Apr. 28, 1976); Endangered Status for the Mexican Wolf, 80 Fed.Reg. 2488, 2488 (Jan. 16, 2015). Mexican wolves' historic range included “portions of the southwestern United States and northern and central Mexico,” but they were extirpated in the United States by the early 1970s. Revision to the Regulations for the Nonessential Experimental Population of the Mexican Wolf, 80 Fed.Reg. 2512-01, 2514 (Jan. 16, 2015) (“Revised 10(j) Rule”) (codified as 50 C.F.R. § 17.84(k)). Recovery efforts have been ongoing in the United States and Mexico pursuant to a binational Mexican Wolf Recovery Plan since the Mexican wolf's listing as an endangered subspecies. Id.

In the United States, the United States Fish and Wildlife Service (FWS) is charged with ensuring the recovery and continued survival of Mexican wolves. See id. at 2512; 16 U.S.C. § 1533(d). A primary component of FWS's Mexican wolf conservation efforts is its maintenance-in collaboration with other federal and state agencies and the White Mountain Apache Tribe-of an experimental population of Mexican wolves in the Mexican Wolf Experimental Population Area (MWEPA), which includes portions of Arizona and New Mexico. See Revised 10(j) Rule, 80 Fed.Reg. at 2515. The objective for FWS's management activities in the MWEPA is to establish a single, experimental population of 300 to 325 Mexican wolves, which will in turn serve as a stepping-stone toward FWS's ultimate goal of reestablishing the Mexican wolf across the entirety of its range. 50 C.F.R. § 17.84(k)(9)(iii); Revised 10(j) Rule, 80 Fed.Reg. at 2516-17.

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FWS's current authority for its Mexican wolf conservation efforts is the Revised 10(j) Rule, codified at 50 C.F.R. § 17.84(k). The Rule authorizes FWS to maintain a captive breeding program; undertake initial releases and translocations; and remove and take[1] Mexican wolves, among other activities. See Revised 10(j) Rule, 80 Fed.Reg. at 2512-13; 50 C.F.R. § 17.84(k). Relevant here, the Rule defines “problem wolves” as

Mexican wolves that, for the purposes of management and control by [FWS] or its designated agent(s), are:

(A) Individuals or members of a group or pack (including adults, yearlings, and pups greater than 4 months of age) that were involved in a depredation on lawfully present domestic animals
(B) Habituated to humans, human residences, or other facilities regularly occupied by humans; or
(C) Aggressive when unprovoked towards humans

50 C.F.R. § 17.84(k)(3). The Rule authorizes FWS to translocate problem wolves, see id. § 17.84(k)(7)(vii)(C), and translocate wolves to private land within the Zones 1 and 2 of the MWEPA “in cooperation with willing private landowners, ... and with the concurrence of the State game and fish agency,” see id. § 17.84(k)(9)(i). The Rule, though, does “not include a set of specific criteria for removal of problem wolves .. in order to maximize ... flexibility in effectively managing Mexican wolves.” Revised 10(j) Rule, 80 Fed.Reg. at 2530. Instead, it provides that “[t]hese criteria will be developed in a management plan.” Id.

The instant case arises from FWS's decision in March 2021 to translocate two

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adult Mexican Wolves (M 1693 and F 1728) and their dependent pups to the privately-owned Ladder Ranch within Zone 2 of the MWEPA in Sierra County, New Mexico. See doc. 1 at ¶¶ 1, 6; 50 C.F.R. § 17.84(k)(3) (defining the boundaries of Zone 2); N.M. Stat. Ann. §§ 4-27-1, 4-27-2 (defining the borders of Sierra County). At the time of the translocation decision, M 1693 and F 1728 were “problem wolves” within the meaning of the Revised 10(j) Rule because they had been involved in multiple livestock depredations. See doc. 1 at ¶ 1; doc. 37 at 9.

Petitioners include the County Commissioners of Sierra County on behalf of Sierra County, several privately-owned ranches on private property and federal land adjacent to Ladder Ranch, and William R. Lindsay, a ranch operator whose property abuts Ladder Ranch. Doc. 1 at ¶¶ 11-15. They filed their Petition for Review of Final Agency Action in this Court on July 1, 2021, bringing four claims under the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (NEPA), and the Administrative Procedure Act, 5 U.S.C. § 500 et seq. (APA), based on Respondents' alleged failure to adequately analyze or notify the public of the March 2021 translocation decision. See Id. at ¶¶ 66-78 (claiming (i) the decision is arbitrary and capricious because FWS failed to consider the effects of translocating of a problem wolf “with aggressive behavior towards humans” to private land adjacent to land where livestock are lawfully grazed or on which there are private residences; (ii) the decision is arbitrary and capricious because FWS “failed to provide any reasoning for the decision to release problem

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wolves onto private land in Sierra County”; (iii) the decision is contrary to NEPA or otherwise noncompliant with its procedural requirements because FWS failed to assess the environmental impacts of decisions to translocate problem wolves within the MWEPA; and (iv) the decision is contrary to law and noncompliant with procedure required by law because FWS failed to provide adequate public notice of the decision, as required by NEPA and FWS policy). Petitioners seek a declaratory judgment that Respondents violated NEPA, agency procedure, and the APA, a vacatur of the March 2021 translocation decision, and to "enjoin ... Respondents' [sic] from releasing the problem wolves from their holding pens in Sierra County until the proper analysis and public comment period is completed.”[2] Id. at 18.

On October 15, 2021, Respondents filed the instant Motion to Dismiss and Memorandum in Support, seeking dismissal of Petitioners' Petition for Review under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) for lack of subject matter jurisdiction and failure to state a claim. See doc. 37 at 1, 4, 28. Petitioners filed a response on November 15, 2021. Doc. 44. The Motion was fully briefed on December 13, 2021, see doc. 59, with the filing of Respondents' reply, doc. 58.

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On November 19, 2021, four days after filing their response to the Motion to Dismiss, Petitioners filed their Motion to Complete or Supplement the Administrative Record or Complete Discovery. See doc. 48. Respondents filed their response on December 3, 2021. Doc. 54. The Motion was fully briefed on December 22, 2021, doc. 61, with the filing of Petitioners' reply, doc. 60. The Court held a hearing on this Motion on January 20, 2022. See doc. 65.

II. Legal Standards

A. NEPA and the APA

NEPA aims to protect the environment through procedural means-most notably, by requiring federal agencies to analyze the environmental consequences of their proposed actions. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989); 42 U.S.C. §§ 4321, 4332(C). At NEPA's “heart” is the “requirement that federal agencies ‘include in every recommendation or report on proposals for ... major Federal actions significantly affecting the quality of the human environment, a detailed statement'” including, inter alia, “the environmental impact of the proposed action,” any unavoidable adverse environmental impacts stemming from the proposed action, and “alternatives to the proposed action.” See Dep't of Transp. v. Pub. Citizen, 541 U.S. 752, 757 (2004) (quoting 42 U.S.C. § 4332(2)(C)). This requirement vindicates NEPA's twin goals of requiring agencies to “take a ‘hard look' at environmental consequences” and “provide for broad dissemination of relevant environmental information.” Methow Valley,

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490 U.S. at 350; see also Baltimore Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 97 (1983). NEPA does not create a private right of action, so a party alleging that an agency has not complied with its procedural requirements must rely on the APA. Colo. Farm Bureau Fed'n v. U.S. Forest Serv., 220 F.3d 1171, 1173 (10th Cir. 2000); Utah v. Babbitt, 137 F.3d 1193, 1203 (10th Cir. 1998).

The APA provides for judicial review of “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. Petitioners bring their claims under § 706(2)(A) and (D) of the APA, see doc. 1 at ¶¶ 76-78, which together provide that a reviewing court shall “hold unlawful and set aside agency action .. found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” or “without observance of procedure required by law,” 5 U.S.C. § 706(2).

The Tenth Circuit has instructed courts reviewing agency action under § 706(2)(A) to treat such actions as appeals, conduct their review based...

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