Jarita Mesa Livestock Grazing Ass'n v. U.S. Forest Serv., CIV 12–0069 JB/KBM.

• Citation: 140 F.Supp.3d 1123
• Decision Date: 30 September 2015
• Docket Number: No. CIV 12–0069 JB/KBM.,CIV 12–0069 JB/KBM.
• Parties: JARITA MESA LIVESTOCK GRAZING ASSOCIATION; Alamosa Livestock Grazing Association; Sebedeo Chacon; Thomas Griego; Donald Griego; Michael Pena ; Juan Giron ; Joe Gurule, Jr.; Fernando Gurule; Diego Jaramillo; Lorenzo Jaramillo; Gabriel Aldaz; Arturo Rodarte; Jeffrey Chacon; Gloria Valdez; Jerry Vasquez ; Carlos Ortega ; Leon Ortega; Horacio Martinez; Ronald Martinez; Steve Chavez ; Vangie Chavez; Alfonso Chacon ; Daniel Rael; John Valdez and Board of County Commissioners of the County of Rio Arriba, Plaintiffs, v. UNITED STATES FOREST SERVICE and Diana Trujillo, in her official and individual capacities, Defendants.
• Court: U.S. District Court — District of New Mexico

140 F.Supp.3d 1123

JARITA MESA LIVESTOCK GRAZING ASSOCIATION; Alamosa Livestock Grazing Association; Sebedeo Chacon; Thomas Griego; Donald Griego; Michael Pena ; Juan Giron ; Joe Gurule, Jr.; Fernando Gurule; Diego Jaramillo; Lorenzo Jaramillo; Gabriel Aldaz; Arturo Rodarte; Jeffrey Chacon; Gloria Valdez; Jerry Vasquez ; Carlos Ortega ; Leon Ortega; Horacio Martinez; Ronald Martinez; Steve Chavez ; Vangie Chavez; Alfonso Chacon ; Daniel Rael; John Valdez and Board of County Commissioners of the County of Rio Arriba, Plaintiffs,
v.
UNITED STATES FOREST SERVICE and Diana Trujillo, in her official and individual capacities, Defendants.

No. CIV 12–0069 JB/KBM.

United States District Court, D. New Mexico.

Filed Sept. 30, 2015.

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Simeon Herskovits, Iris A. Thornton, Michelle T. Miano, Advocates for Community and Environment, El Prado, NM,

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Richard Rosenstock, Richard Rosenstock Esq., Santa Fe, NM, for Plaintiffs.

Damon P. Martinez, United States Attorney, Ruth F. Keegan, Assistant United States Attorney, United States Attorney's Office, Albuquerque, NM, Andrew A. Smith, John C. Cruden, Environment & Natural Resources Division, United States Department of Justice, Albuquerque, NM, for Defendants.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Federal Defendants' Motion and Memorandum to Dismiss Plaintiffs' Remaining Claims, filed February 10, 2015 (Doc. 144) ("MTD"). The Court held a hearing on May 21, 2015. The primary issues are: (i) whether the Plaintiffs who suffer no economic injury can establish standing; (ii) whether the Plaintiffs' alleged injuries fall within the "zone of interests" of the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4331 –4370 ("NEPA"); (iii) whether the Plaintiffs properly exhausted their administrative remedies; (iv) whether the Plaintiffs' claim that the Forest Service violated the National Forest Management Act of 1976, Pub.L. No. 94–588, 90 Stat. 2949 (codified in scattered sections of 16 U.S.C.)("NFMA"), by failing to remove wild horses is a judicially cognizable claim; (v) whether the Forest Service's guidance document is judicially enforceable; and (vi) whether the Sustained Yield Forest Management Act of 1944, 16 U.S.C. §§ 583, 583a –583i ("SYFMA"), governs the Forest Service's issuance of livestock grazing permits.

The Court concludes that the Plaintiffs who suffer no economic injury nonetheless have standing to redress their environmental, aesthetic, cultural, and recreational injuries. The Plaintiffs' injuries also fall within the zone of interests that the NEPA seeks to protect, although they may not pursue all of the remedies which they seek in the Complaint, filed January 20, 2012 (Doc. 1). Next, the Court concludes that the Plaintiffs have exhausted only some of their administrative remedies. The Court dismisses the unexhausted claims without prejudice to allow the Plaintiffs to exhaust their remaining claims before pursuing them in federal court. Even if the Plaintiffs had exhausted their remaining claims, however, the Court concludes that: (i) the Plaintiffs' claim that the Defendants violated the NFMA by failing to remove wild horses, Count Seven, is not judicially cognizable; (ii) the Forest Service's guidance document is not judicially enforceable under the Administrative Procedure Act, 5 U.S.C. §§ 702 –706, Pub.L. No. 79–404, 60 Stat. 237 ("APA"), making Count Nine unenforceable; and (iii) the Plaintiffs' claim that the Defendants violated the SYFMA, Count Eight, fails to state a claim on which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). The Court grants the Motion as to the Complaint's Counts Three, Four, Six, Seven, Eight, and Nine. The Motion is denied as to the Complaint's Counts Two and Five.

FACTUAL BACKGROUND

The history of the Plaintiffs' case predates the parties before the Court. The Plaintiffs set forth a backdrop of social, cultural, and economic factors that they say are inextricably intertwined with the Plaintiffs' cattle grazing within the Carson National Forest in northern New Mexico. The Plaintiffs also allege a history of tension between the Forest Service and the Plaintiffs' ancestors, which bears on the legality of the Defendants' actions managing national forestland in northern New

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Mexico over the last three years.¹ The Court takes as true all non-conclusory factual statements in the Complaint for Declaratory and Injunctive Relief (First Amendment to the United States Constitution, National Environmental Policy Act; National Forest Management Act, Sustain Yield Forest Management Act; Administrative Procedure Act), filed January 20, 2012 (Doc. 1)("Complaint").

1. The Parties to the Litigation.

"The Plaintiffs and their ancestors are Hispanic stockmen whose families have been grazing livestock" in northern New Mexico for many generations. Complaint ¶ 3, at 2–3. Most of the natural-person Plaintiffs' families were grazing livestock in the area that is now the Vallecitos Federal Sustained Yield Unit ("the Unit") before the Forest Service existed. Complaint ¶ 3, at 3. The Unit is an area of the Carson National Forest that Congress set aside to be managed for the economic benefit of the communities located in the Unit. Congress specifically provided that these local communities should have access to the timber and other forest products within the Unit, as needed for the communities' economic stability. See Complaint ¶ 39, at 14. Grazing livestock is an "integral part of their existence and is a central part of life in the villages they reside in ... all of Northern New Mexico." Complaint ¶ 3, at 3.

The Jarita Mesa Allotment and the Alamosa Allotment are areas within the Unit where cattle grazing is allowed. See Complaint ¶ 2, at 2. Plaintiffs Sebedeo Chacon, Michael Pena, Juan Giron, Gabriel Aldaz, Arturo Rodarte, Thomas Griego, Donald Griego, Joe Gurule, Jr., Lorenzo Jaramillo, Jeffrey Chacon, and Gloria Valdez (collectively, "the Jarita Mesa Permittees") have permits that the Forest Service issued, which allow them to graze cattle on the Jarita Mesa Allotment. Complaint ¶ 3, at 2. T. Griego, D. Griego, Plaintiffs Carlos Ortega, Leon Ortega, Daniel Rael, Horacio Martinez, Ronald Martinez, Fernando Gurule, Jerry Vasquez, and Alfonso Chacon (collectively, "the Alamosa Permittees") have permits that the Forest Service issued, which allow them to graze cattle on the Alamosa Allotment. Complaint ¶ 3, at 2. Plaintiff Steve Chavez is a former permittee on the Alamosa Allotment and now lives within the Unit with his wife, Plaintiff Vangie Chavez. See Complaint ¶ 3, at 2. J. Valdez is a former permittee on the Jarita Mesa Allotment and now resides within the Unit. See Complaint ¶ 3, at 2–3. The Jarita Mesa Grazing Association and the Alamosa Grazing Association (collectively, "the Associations") are "local livestock associations made up exclusively of grazing permittees on the respective allotments." Complaint ¶ 13, at 5. The Associations were established to: (i) protect and promote the permittees' livestock grazing on the Allotments; (ii) manage and share the costs of handling livestock, range improvements, and other programs for the benefit of the Allotments and their resources; (iii) express the Associations' members' wishes; and (iv) meet with and work with the Forest Service to ensure proper management of livestock and range resources on the allotments. See Complaint ¶ 13, at 6. S. Chacon was president of the Jarita Mesa Grazing Association throughout the events set forth in the Complaint. See Complaint ¶ 14, at 6. T. Griego was president of the Alamosa Grazing Association

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throughout the events set forth in the Complaint. See Complaint ¶ 15, at 7.

The Hispanic people in northern New Mexico have lived in the area for hundreds of years, long before Congress created the Forest Service. See Complaint ¶ 37, at 13. The Hispanic people living in villages near the Carson National Forests have historically relied on the resources of the national forests of northern New Mexico for sustenance. See Complaint ¶ 37, at 13. These Hispanics rely upon the "fodder, including grasses and other forage, like the marsh hay, mushrooms, nuts, and seeds" within the Unit for their sustenance. Complaint ¶ 39, at 14. Livestock grazing has been central to their cultural, social, and economic fabric since at least the 1690s. See Complaint ¶ 40, at 14. The Associations represent the communities "that have historically relied on, and continue to rely on, grazing on these ancient community ... lands." Complaint ¶ 40, at 15.

Plaintiff Board of County Commissioners of the County of Rio Arriba ("Rio Arriba County") is a political subdivision in northern New Mexico, in which a large portion of the Carson National Forest, including the Allotments and the El Rito Ranger District, is located. See Complaint ¶ 16, at 7. The Individual Plaintiffs are all residents of Rio Arriba County. Rio Arriba County and local school districts receive payments derived from the grazing fees,...