Jarita Mesa Livestock Grazing Ass'n v. U.S. Forest Serv. & Diana Trujillo

• Decision Date: 13 October 2017
• Docket Number: No. CIV 12–0069 JB/KBM,CIV 12–0069 JB/KBM
• Citation: 301 F.Supp.3d 1010
• 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

301 F.Supp.3d 1010

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 October 13, 2017

Richard Rosenstock, Richard Rosenstock Esq., Santa Fe, New Mexico and Simeon Herskovits, Iris A. Thornton, Advocates for Community and Environment, El Prado, New Mexico, Attorneys for the Plaintiffs.

James D. Tierney, Acting United States Attorney, Ruth F. Keegan, Assistant United States Attorney, United States Attorney's Office, Albuquerque, New Mexico and Andrew A. Smith, Environment & Natural Resources Division, United States Department of Justice, Albuquerque, New Mexico, Attorneys for the Defendants.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on the Plaintiffs' Amended Opening Brief, filed October 18, 2016 (Doc. 181–1)("Opening Brief"). The Court held a hearing on January 26, 2017. The primary issues are: (i) whether the National Environmental Policy Act of 1969, Pub. L. No. 91–190, 83 Stat. 852 [ ] ("NEPA") requires the Defendant United States Forest Service ("the Forest Service") to consider the social and economic impacts of a proposed action—reducing grazing permits for the Alamosa and Jarita Mesa Grazing Allotments—before deciding to take it; and (ii) whether Defendant Diana Trujillo, former El Rito District Ranger,¹ decided to reduce grazing permits for the Alamosa and Jarita Mesa Grazing Districts before considering the Environmental Assessment for Jarita Mesa and Alamosa Grazing Allotments (dated September, 2010)(AR 011351–487)("EA"). The Court concludes that NEPA requires agencies to consider the environmental impacts of agency action, which may—depending on a particular case's circumstances—extend to secondary social and economic effects that flow from an action's impact on the physical environment. NEPA does not, however, require agencies to consider social and economic impacts that flow directly from an action and not from the action's effect on the physical environment. Because the Plaintiffs allege that the Defendants failed to consider an agency action's direct social and economic impacts, the Court concludes that the Plaintiffs' allegations do not amount to a NEPA violation. After examining the Administrative Record ("AR"), the Court also concludes that Trujillo did not violate NEPA by deciding to take a particular agency action before considering the EA's findings. Accordingly, the Court will affirm the administrative appeal's decision.

FACTUAL BACKGROUND

The historical background surrounding this case predates both the parties before the Court and the Court itself. The individual Plaintiffs raise cattle in northern New Mexico and hold permits that allow their livestock to graze in either the Jarita Mesa Grazing Allotment ("Jarita Mesa Allotment") or the Alamosa Grazing Allotment ("Alamosa Allotment"), depending on the permit. Complaint for Declaratory and Injunctive Relief ¶ 3, at 2–3, filed January 20, 2012 (Doc. 1)("Complaint").² The Jarita Mesa Allotment and the Alamosa Allotment are both within the El Rito Ranger District of Carson National Forest. See Complaint ¶ 1, at 2. They are also part of the Vallecitos Federal Sustained Yield Unit. See Complaint ¶ 2, at 2. In the Federally Sustained Yield Forest Management Act of 1944, Pub. L. No. 78–273, 58 Stat. 132(codified at 16 U.S.C. §§ 583 – 583i ), Congress authorized the Secretary of Agriculture to establish co-operative sustained-yield units like the Vallecitos Federal Sustained Yield Unit in federally owned or administered forest land under the Secretary's jurisdiction. See 16 U.S.C. § 583.

1. Historical Background.

The Plaintiffs and their ancestors, however, began grazing livestock on the land that now comprises those Allotments long before the Secretary of Agriculture established the Vallecitos Federal Sustained Yield Unit. See Complaint ¶ 3, at 2–3. The Plaintiffs are the heirs to a "Hispano ranching tradition" that dates back to the colonization of New Mexico by the Spanish in 1598, Carol Raish & Alice M. McSweeney, United States Department of Agriculture, Economic, Social, and Cultural Aspects of Livestock Ranching on the Española and Canjilon Ranger Districts of the Santa Fe and Carson National Forests: A Pilot Study 3 (RMRS–GTR–133, 2003), available at http://doi.org/10.2737/RMRS-GTR-113. The Spanish colonists brought their domesticated plants and animals—including cattle, horses, sheep, and goats—with them and introduced intensive irrigation agriculture, whereas indigenous farming practices relied on "extensive floodwater farming and soil retention techniques." Raish & McSweeney at 3. The Spanish were forced out of northern New Mexico by the Pueblo Revolt of 1680, but Don Diego de Vargas reconquered the area twelve years later. See Raish & McSweeney at 3–4. After the reconquest, the new generation of Spanish colonists "generally worked their own land and maintained relatively cordial relations with the Pueblo Indian groups as both used the land in similar ways." Raish & McSweeney at 4. The modern-day Hispanic villagers and farmers of northern New Mexico are descended from those farmers and ranchers. See Raish & McSweeney at 4.

The Spanish Crown—between 1598 and 1821—and then the Mexican government—between 1821 and 1848—confirmed the settlers' use and ownership of the land by issuing land grants. See Raish & McSweeney at 4. One particular kind of land grant, the community grant, generated a land-ownership that persists even today. See Raish & McSweeney at 4. Community grants gave individual settlers ownership over a building site—for a homestead—as well as a small—five to ten acres—plot of land for farming. See Raish & McSweeney at 4. The lion's share of the land bestowed by a community grant, however, belonged not to any individual settler but, instead, to the settlers as a group, which permitted individuals to "use[ ] the village grazing lands, timberlands, and community pastures as common lands." Raish & McSweeney at 4. That allocation of land supported a small population of subsistence farmers and their animals for centuries with only scattered areas of land overuse near villages. See Raish & McSweeney at 4. Commercial sheep production increased while Mexico controlled the area, which in turn increased the amount of land overuse, but

[t]hroughout the 1800s, local Hispanic and Pueblo residents of the nearby valleys used the plateau as common property, bringing their small herds to the plateau for summer grazing. They also harvested from the abundant timber resources for personal use and small-scale business ventures and planted some summer crops. The small size and noncommercial nature of these operations ensured that sufficient grass and forest resources remained for all who needed them.

Raish & McSweeney at 4. "By the time of the United States occupation of New Mexico, over sixty such community grants were in existence." Christine A. Klein, Treaties of Conquest: Property Rights, Indian Treaties, and the Treaty of Guadalupe Hidalgo, 26 N.M. L. Rev. 201, 236 (1996).

The Mexican–American War drastically changed the way land in northern New Mexico was owned and used. When it signed the Treaty of Guadalupe Hidalgo in 1848, the United States agreed to recognize and protect the property rights of the people who resided in the territory that Mexico ceded to the United States. See Treaty of Peace, Friendship, Limits, and Settlement with the Republic of Mexico, Mex.–U.S., art. VII, February 2, 1948, 9 Stat. 922 (hereinafter "Treaty of Guadalupe Hidalgo")("Mexicans now established in territories previously belonging to Mexico ... shall be free to continue where they now reside, or to remove at any time to the Mexican republic, retaining the property which they possess in said territories...."); id. ("In the said territories, property of every kind, now belonging to Mexicans not established there, shall be inviolably respected."); id. art. IX ("Mexicans who, in the territories aforesaid, shall not preserve the character of citizens of the Mexican republic [i.e., who shall elect to become United States citizens] ... shall be maintained and protected in the free enjoyment of their liberty and property, and secured in the free exercise of their religion without restriction."). The devil was, of course, in the details, because the Treaty of Guadalupe Hidalgo did not provide a mechanism for the residents of New Mexico to prove and assert their property rights.

Congress acted to provide such a mechanism when, in 1854, it established the office of Surveyor–General for New Mexico. See Act of July 22, 1854, ch. 103, § 1, 10 Stat. 308. The Surveyor–General was charged with "ascertain[ing] the origin, nature, character, and extent of all claims to lands under the laws, usages, and customs of Spain and Mexico," as well as with "mak[ing] a full report on all such claims as originated before the cession of the territory to the United States by the treaty of Guadalupe Hidalgo ... with his decision as to the validity or invalidity of the same." Act of July 22, 1854 § 8, 10 Stat. at 309. Congress and not the Surveyor–General, however, was to make final decisions regarding the validity of New Mexican land claims. See Act of July 22, 1854 § 8, 10 Stat. at 309.

The Surveyor–General mechanism, however, was not up to the task of "determining title to some fifteen million square...