N.M. Dep't of Game & Fish v. U.S. Dep't of the Interior

• Citation: 854 F.3d 1236
• Decision Date: 25 April 2017
• Docket Number: Nos. 16-2189 & 16-2202,s. 16-2189 & 16-2202
• Parties: NEW MEXICO DEPARTMENT OF GAME AND FISH, Petitioner–Appellee, v. UNITED STATES DEPARTMENT OF THE INTERIOR; Ryan Zinke, in his official capacity as Secretary of the United States Department of the Interior; United States Fish and Wildlife Service; Jim Kurth, in his official capacity as Acting Director of the United States Fish and Wildlife Service; Dr. Benjamin Tuggle, in his official capacity as Southwest Regional Director for the United States Fish and Wildlife Service, Respondents, and Defenders of Wildlife; Center for Biological Diversity; WildEarth Guardians; New Mexico Wilderness Alliance, Defendants Intervenors–Appellants, and Foundation to Protect New Mexico Wildlife; New Mexico Farm and Livestock Bureau; New Mexico Cattle Growers Association, Spur Ranch Cattle Co. LLC; Mountain States Legal Foundation ; Association of Fish and Wildlife Agencies; State of Colorado; State of Alabama; State of Alaska; State of Arizona; State of Arkansas; State of Idaho; State of Kansas; State of Michigan; State of Montana; State of Nebraska; State of Nevada; State of New Hampshire; State of Oklahoma; State of South Dakota; State of Texas; State of Utah; State of Wisconsin; State of Wyoming; Rocky Mountain Elk Foundation; Safari Club International, Amici Curiae.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

854 F.3d 1236

NEW MEXICO DEPARTMENT OF GAME AND FISH, Petitioner–Appellee,
v.
UNITED STATES DEPARTMENT OF THE INTERIOR; Ryan Zinke,^* in his official capacity as Secretary of the United States Department of the Interior; United States Fish and Wildlife Service; Jim Kurth,^† in his official capacity as Acting Director of the United States Fish and Wildlife Service; Dr. Benjamin Tuggle, in his official capacity as Southwest Regional Director for the United States Fish and Wildlife Service, Respondents,
and
Defenders of Wildlife; Center for Biological Diversity; WildEarth Guardians; New Mexico Wilderness Alliance, Defendants Intervenors–Appellants,
and
Foundation to Protect New Mexico Wildlife; New Mexico Farm and Livestock Bureau; New Mexico Cattle Growers Association, Spur Ranch Cattle Co. LLC; Mountain States Legal Foundation ; Association of Fish and Wildlife Agencies; State of Colorado; State of Alabama; State of Alaska; State of Arizona; State of Arkansas; State of Idaho; State of Kansas; State of Michigan; State of Montana; State of Nebraska; State of Nevada; State of New Hampshire; State of Oklahoma; State of South Dakota; State of Texas; State of Utah; State of Wisconsin; State of Wyoming; Rocky Mountain Elk Foundation; Safari Club International, Amici Curiae.

Nos. 16-2189 & 16-2202

United States Court of Appeals, Tenth Circuit.

FILED April 25, 2017

McCrystie Adams (James Jay Tutchton with her on the briefs), Defenders of Wildlife, Denver, Colorado, for Defendants Intervenors–Appellants.

Rachel Heron, Attorney, United States Department of Justice, Environment and Natural Resources Division, Washington, D.C. (John C. Cruden, Assistant Attorney General; Andrew Mergen, Ellen Durkee, Meredith L. Flax, Bridget Kennedy McNeil, Clifford E. Stevens, Jr., and Andrew A. Smith, Attorneys, United States Department of Justice, Environment and Natural Resources Division, Washington, D.C.; and Ann Navarro and Justin Tade, Office of the Solicitor, United States Department of the Interior, with her on the briefs), for Respondents.

Matthias L. Sayer, New Mexico Department of Game and Fish, Santa Fe, New Mexico (Paul S. Weiland, Benjamin Z. Rubin, Ashley J. Remillard, Nossaman LLP, Irvine, California, with him on the briefs), for Petitioner–Appellee.

Kate Ferlic and Kristina Caffrey, Egolf + Ferlic + Harwood, LLC, Santa Fe, New Mexico, filed an amicus brief on behalf of Foundation to Protect New Mexico Wildlife.

Kent Holsinger, Holsinger Law, LLC, Denver, Colorado, filed an amicus brief on behalf of New Mexico Farm and Livestock Bureau.

854 F.3d 1239

M. Reed Hopper, Pacific Legal Foundation, Sacramento, California, filed an amicus brief on behalf of New Mexico Cattle Growers Association.

Carol Bambery, Association of Fish and Wildlife Agencies, Washington, D.C., filed an amicus brief on behalf of Association of Fish and Wildlife Agencies.

John I. Kittel, Mazur and Kittel, PLLC, Farmington Hills, Michigan, filed an amicus brief on behalf of Rocky Mountain Elk Foundation.

Anna M. Seidman and Douglas S. Burdin, Safari Club International, Washington, D.C., filed an amicus brief on behalf of Safari Club International.

Gina Cannan and Steven J. Lechner, Mountain States Legal Foundation, Lakewood, Colorado, filed an amicus brief on behalf of Spur Ranch Cattle Co. LLC and Mountain States Legal Foundation.

Lisa A. Reynolds, Assistant Attorney General, Office of the Colorado Attorney General, Denver, Colorado (Cynthia Coffman, Attorney General; Frederick R. Yarger, Solicitor General; with her on the briefs) (together with Luther Strange, Attorney General of Alabama, Montgomery, Alabama; Jahna Lindemuth, Attorney General of Alaska, Juneau, Alaska; Mark Brnovich, Attorney General of Arizona, Phoenix, Arizona; Leslie Rutledge, Attorney General of Arkansas, Little Rock, Arkansas; Lawrence G. Wasden, Attorney General of Idaho, Boise, Idaho; Derek Schmidt, Attorney General of Kansas, Topeka, Kansas; Bill Schuette, Attorney General of Michigan, Lansing, Michigan; Tim Fox, Attorney General of Montana, Helena, Montana; Douglas J. Peterson, Attorney General of Nebraska, Lincoln, Nebraska; Adam Paul Laxalt, Attorney General of Nevada, Carson City, Nevada; Joseph A. Foster, Attorney General of New Hampshire, Concord, New Hampshire; E. Scott Pruitt, Attorney General of Oklahoma, Oklahoma City, Oklahoma; Marty J. Jackley, Attorney General of South Dakota, Pierre, South Dakota; Ken Paxton, Attorney General of Texas, Austin, Texas; Sean D. Reyes, Attorney General of Utah, Salt Lake City, Utah; Brad D. Schimel, Attorney General of Wisconsin, Madison, Wisconsin; Peter K. Michael, Attorney General of Wyoming, Cheyenne, Wyoming) filed an amicus brief on behalf of the States of Colorado, Alabama, Alaska, Arizona, Arkansas, Idaho, Kansas, Michigan, Montana, Nebraska, Nevada, New Hampshire, Oklahoma, South Dakota, Texas, Utah, Wisconsin and Wyoming.

Before HOLMES, MATHESON, and McHUGH, Circuit Judges.

McHUGH, Circuit Judge.

These consolidated appeals arise from the district court's grant of a preliminary injunction to the New Mexico Department of Game and Fish (the "Department"). The injunction followed the release, without a state permit, of two Mexican gray wolf pups on federal land located in New Mexico by the United States Fish and Wildlife Service ("FWS"), an agency within the United States Department of the Interior ("Interior"). The district court's order enjoins Interior, FWS, and certain individuals in their official capacities from importing or releasing: (1) any Mexican gray wolves into the State without first obtaining the requisite state permits; and (2) any Mexican gray wolf offspring into the State in violation of prior state permits. Interior, FWS, Ryan Zinke, in his official capacity as Secretary of the Interior, Jim Kurth, in his official capacity as Acting Director of FWS, Dr. Benjamin Tuggle, in his official capacity as Southwest Regional Director for FWS (collectively "Federal Appellants"), and intervening defendants Defenders of Wildlife, Center for Biological Diversity, WildEarth Guardians, and New

854 F.3d 1240

Mexico Wilderness Alliance (collectively "Intervenor Appellants") separately filed timely appeals contending the district court abused its discretion in granting the Department a preliminary injunction.

Exercising jurisdiction under 28 U.S.C. § 1292, we reverse and vacate the district court's entry of a preliminary injunction.

I. BACKGROUND

A. Factual History¹

1. Mexican Gray Wolf Status and Recovery Efforts

The Mexican gray wolf (Canis lupus baileyi ) is the smallest, rarest, and southernmost occurring subspecies of the North American gray wolf (Canis lupus ). See Endangered and Threatened Wildlife and Plants; Revision to the Regulations for the Nonessential Experimental Population of the Mexican Wolf, 80 Fed. Reg. 2512–01, 2514 (Jan. 16, 2015) (to be codified at 50 C.F.R. pt. 17). "The gray wolf ... has been at the forefront of the movement to conserve endangered species for many years" because "[b]y the 1930s, wolves were nearly erased from the lower 48 states as a result of one of the most effective eradication campaigns in modern history." Humane Soc'y of the United States v. Jewell , 76 F.Supp.3d 69, 81 (D.D.C. 2014) (quoting Hope M. Babcock, The Sad Story of the Northern Rocky Mountain Gray Wolf Reintroduction Program , 24 Fordham Envtl. L. Rev. 25, 38 (2013) ). These eradication efforts, initiated primarily to decrease the loss of livestock to wolf predation, included the trapping, shooting, and poisoning of wolves, and had a significant impact on the population of Mexican gray wolves in the United States. Largely as a result of these efforts, the Mexican gray wolf was thought to have been extirpated from its historic range by the 1970s.² WildEarth Guardians v. Ashe , No. CV-15-00019, 2016 WL 3919464, at *1 (D. Ariz. May 16, 2016) (citing 80 Fed. Reg. 2512–01 ).

In an effort to preserve and restore the Mexican gray wolf population, the subspecies was first listed as endangered in 1976, under the Endangered Species Act of 1973 (the "Act"). Determination That Two Species of Butterflies Are Threatened Species & Two Species of Mammals Are Endangered Species, 41 Fed. Reg. 17,736 –01, 17,737–40 (Apr. 28, 1976) (to be codified at

854 F.3d 1241

50 C.F.R. pt. 17). The 1976 listing was later subsumed by a final rule promulgated by FWS in 1978, which listed the entire gray wolf species in North America, south of Canada and excepting Minnesota, as endangered under the Act.³ Reclassification of the Gray Wolf in the United States and Mexico, With Determination of Critical Habitat in Michigan and Minnesota, 43 Fed. Reg. 9607–01, 9607–615 (Mar. 9, 1978) (to be codified at 50 C.F.R pt. 17); see also 50 C.F.R. § 17.11(h) (2016). Between 1977 and 1980, the United States and Mexico worked in partnership to capture the last remaining wild Mexican gray wolves in order to initiate a captive breeding program referred to as the Mexican Wolf Species Survival Plan. 80 Fed. Reg. 2512–01 at 2515. As its name suggests, the two nations established the breeding program to prevent the extinction of the subspecies and to reestablish the Mexican wolf in the wild by breeding the...