Humane Soc'y of the United States v. Kienzle
| Decision Date | 16 July 2018 |
| Docket Number | No. 16-cv-0724 WJ/SMV,16-cv-0724 WJ/SMV |
| Citation | 333 F.Supp.3d 1236 |
| Parties | HUMANE SOCIETY OF the UNITED STATES, Animal Protection of New Mexico, Jean Ossorio, and Peter Ossorio, Plaintiffs, v. Paul M. KIENZLE, III; William Montoya; Robert Espinoza, Sr.; Ralph Ramos; Bob Ricklefs; Elizabeth Atkinson Ryan; Thomas Salopek; and Alexandra Sandoval, Defendants. |
| Court | U.S. District Court — District of New Mexico |
Nicholas Arrivo, The Humane Society of the United States, Washington, DC, Samuel C. Wolf, Jones Snead Wertheim & Clifford PA, Santa Fe, NM, Bruce A. Wagman, Schiff Hardin LLP, San Francisco, CA, for Plaintiffs.
Matthias L. Sayer, New Mexico Department of Game and Fish, Santa Fe, NM, Paul S. Weiland, Nossaman LLP, Irvine, CA, for Defendants.
THIS MATTER comes before the Court upon the following motions following oral argument:
Having reviewed and considered the parties' cross-motions and the applicable law, the Court is denying Plaintiffs' motion and granting Defendants' motion.
The relevant entities in this lawsuit are:
Plaintiffs: Humane Society of the United States
Animal Protection of New Mexico
Jean Ossorio
Peter Ossorio
Defendants: Individual Commissioners of the New Mexico State Game
Commission
New Mexico State Game "Commission"
Commission
New Mexico Department "Department"
Of Game and Fish
United States Fish "FWS"
And Wildlife
Plaintiffs in this case allege that the Defendants, who are the Commissioners of the New Mexico State Game Commission, have adopted regulations that authorize trapping of cougars and that by so doing, will cause "take" of Mexican gray wolves in violation of the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531 - 1544 ("ESA"), in particular, § 9 and § 10(j), and its relevant federal regulations. Plaintiffs seek a Court order enjoining the state trapping regulations.1
The New Mexico Department of Game and Fish ("Department") reviews and proposes updates to hunting and trapping regulations, including those that apply to trapping of cougars. The New Mexico State Game Commission ("Commission") has ultimate authority to adopt such hunting and trapping regulations. N.M.A.C. § 19.31.11.3. In 2016, Defendants authorized recreational trapping and snaring for cougars on state trust land and private deeded lands throughout the state, making New Mexico the only state that authorizes the recreational trapping and snaring of cougars. (Hereinafter, the rules and regulations relating to the trapping and snaring of cougars will be referred to as the "Cougar Rule"). Plaintiffs allege the adoption of the Cougar Rule threatens Mexican wolves and that it will cause cougar trappers to trap and snare Mexican wolves without due care because it is impossible to modify cougar traps to avoid harming wolves. Plaintiffs contend that because the state has licensed the trapping activity, it is liable for the conduct of the trappers.
Parties anticipate that this case can be resolved at the summary judgment stage, based on their cross-motions. Doc. 108, ¶ 2. Both sides have presented voluminous amounts of material as evidence, including numerous Declarations by individuals who have not been designated as experts, according to the parties' own representations. Doc. 108, ¶ 6. The Court considers all of these statements and weighs them as opinion testimony based solely on the personal experience of these individuals. See Fed.R.Evid. 701.
Congress enacted the ESA in 1973 to "provide for the conservation, protection, restoration, and propagation of species of fish, wildlife, and plants facing extinction." Wyo. Farm Bureau Fed'n v. Babbitt , 199 F.3d 1224, 1231 (10th Cir. 2000) (" Wyo. Farm Bureau ") (quoting S. Rep. No. 93-307, at 1 (1973), reprinted in 1982 U.S.C.C.A.N. 2989). The ESA provides various levels of protection depending upon how a species is classified. The three ESA classifications are: (1) endangered, (2) threatened, and (3) experimental populations. See 16 U.S.C. §§ 1538(a), 1539(j). "Endangered" species are entitled to the highest level of protection. See Animal Welfare Inst. v. Martin , 588 F.Supp.2d 70, 97-98 (D. Me. 2008) (internal citation omitted).
When a species is listed as endangered, ESA § 9(a)(1)(B) prohibits all take of the species. 16 U.S.C. § 1538(a)(1)(B). 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." Id. § 1532(19). The ESA does not expressly prohibit take of threatened species although it allows the United States Fish and Wildlife Service ("FWS") to promulgate protective regulations for threatened species. Id. 16 U.S.C. § 1533(d). Plaintiffs emphasize the broad scope of activities included in the ESA's definition of "take," arguing that even if no wolf has been caught in traps set for cougars, Defendants' conduct still constitutes a take because it is an "attempt" at a "take." However, an "attempt to take" implies an intent that is directed at wolves and would not include those instances where wolves may be caught in traps that were meant for cougars. There is no evidence in this case of any specific intent to trap Mexican wolves, and so the Court finds the use of "attempt" inapplicable.
The FWS has promulgated a rule applying the ESA § 9 take prohibition to all threatened species, subject to certain exceptions. 50 C.F.R. §§ 17.31, 17.40 – 17.48. Experimental populations authorized for release under ESA section 10(j) are "treated as if ... listed as a threatened species for purposes of establishing protective regulations under section 4(d) ...." 50 C.F.R. § 17.82 ; see also 16 U.S.C. § 1539(j).
The designation of an animal is pertinent to any analysis where the Department is being challenged on its regulations and policies relative to the ESA. Special rules have been promulgated relating to experimental populations, such as the Mexican wolf population, which provide an exception to § 9's take prohibition under the ESA. One of these rules is 50 CFR § 17.84(k) which addresses "unavoidable and unintentional take." The regulation states that a violation of the ESA does not occur when take is incidental to a legal activity and is not a result of negligent conduct lacking reasonable due care, and when due care was exercised to avoid the taking. In a fairly recent unpublished District of New Mexico case, the court contrasted the taking of an animal under the special rules applied to experimental populations, with taking of an animal on the endangered species list:
Under the special rules applied to experimental populations, the taking of a wolf with a trap or other type of capture device within occupied wolf range would not be considered unavoidable, accidental, or unintentional, but no violation occurs if "due care was exercised to avoid taking a wolf." Id. Thus, a trapper engaged in lawful trapping of furbearer animals, who was careful and sought to avoid capturing a wolf, would not violate the law. In contrast, under the § 9 prohibition on taking, it matters not if a trapper exercised due care to avoid taking a listed animal. Any taking of a listed animal under § 9 is a violation of law, and indeed, ESA § 9 does not contemplate any type of trapping of a threatened or endangered species that is not an experimental population.
WildEarth Guardians v. Lane , No. CIV 12-118 LFG/KBM, 2012 WL 6019306, at *21 (D.N.M. Dec. 3, 2012), as amended (Dec. 4, 2012). Thus, the designation of the Mexican gray wolf is not altogether irrelevant when considering measures taken by the Department in trying to minimize risk of injury to wolves when enacting the Cougar Rule.
The FWS promulgated a rule relating to the experimental population of the Mexican gray wolf in 1998, designating the population as "nonessential" under the ESA. 50 C.F.R. § 17.84(k). The rule was amended in 2015 to modify the geographic boundaries in which Mexican gray wolves are managed, to modify certain other provisions to facilitate management activities, and to revise the "due care" criteria to "allow for trapping to occur in a way that reduces harm to Mexican wolves." Revision to the Regulations for the Nonessential Experimental Population of the Mexican gray wolf, 80 Fed. Reg. 2512, 2534, 2548 (Jan. 16, 2015) ("10(j) Rule").
Under the Cougar Rule, hunters who possess both a valid cougar license and a valid furbearer license may use traps or foot snares to harvest cougars on state trust land, or private deeded land with written permission from the landowner. N.M. Admin. Code § 19.31.11.10(O ). Hunters must comply with the "regulations on methods, trap specification, trap inspection, and cougar removal as defined in 19.32.2.10 NMAC (Manner and Method of Taking Furbearers), and 19.32.2.11 NMAC (Trap Inspection and Furbearer Removal"). Id. These provisions include limitations on the size and type of traps. See, e.g., N.M. Admin. Code § 19.32.2.10.B(2). Further, it is unlawful to hunt cougars without completing a mandatory cougar identification course. N.M. Admin. Code § 19.31.11.9(G). The extent to which cougar trapping in New Mexico is authorized is limited in a number of other respects. For example, trapping is only permitted on certain lands, N.M. Admin. Code § 19.31.11.10(O )-(P), and where trapping is authorized, the season is limited from November 1 through March 31, or until the total mortality limit, or female sub-limit, is met, whichever comes first. N.M. Admin. Code § 19.31.11.12(B).
The Complaint asserts three claims, with Counts...
To continue reading
Request your trial
-
DIFFERENT KIND OF "REGULATORY TAKING": WHEN DOES NONFEDERAL REGULATORY ACTION CAUSE TAKE OF LISTED SPECIES?
...U.S. v. Kienzle, No. 16-cv-0724 WJ/SMV, 2017 WL 5151305 (D.N.M. Nov. 2, 2017). [73] Id. at *1.[74] Humane Soc'y of U.S. v. Kienzle, 333 F. Supp. 3d 1236 (D.N.M. 2018), appeal docketed, No. 18-2122 (10th Cir. Aug. 15, 2018).[75] Id. at 1262.[76] Loggerhead Turtle v. County Council of Volusia......