N.M. Farm & Livestock Bureau v. U.S. Dep't of Interior

Decision Date27 January 2021
Docket NumberCiv. No. 15-428 KG/CG
PartiesNEW MEXICO FARM & LIVESTOCK BUREAU; NEW MEXICO CATTLE GROWERS' ASSOCIATION; and NEW MEXICO FEDERAL LANDS COUNCIL, Plaintiffs, 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; and DANIEL M. ASHE, in his official capacity as Director of the United States Fish and Wildlife Service, Defendants, CENTER FOR BIOLOGICAL DIVERSITY and DEFENDERS OF WILDLIFE, Defendant-Intervenors.
CourtU.S. District Court — District of New Mexico
MEMORANDUM OPINION AND ORDER

This administrative review case involves Defendant United States Fish and Wildlife Service's (Service) Final Rule designating critical habitats for the jaguar in New Mexico under the Endangered Species Act (ESA). Plaintiffs filed this lawsuit in 2015, asserting that the Service's New Mexico critical habitat designations were arbitrary and capricious. The Court has jurisdiction over this action pursuant to 5 U.S.C. § 702 (judicial review of agency action); 16 U.S.C. § 1540(c) (ESA actions); 16 U.S.C. § 1540(g) (citizen suits arising under ESA); and 28 U.S.C. § 1331 (federal question jurisdiction).

In October 2017, the Court ruled in favor of the Service. (Docs. 76 and 77). Plaintiffs appealed that decision in December 2018. (Doc. 78). In March 2020, the Tenth Circuit Court of Appeals reversed the Court's ruling and remanded the case to the Court "for proceedings consistent with this decision." New Mexico Farm and Livestock Bureau v. United States Dept. of Interior, 952 F.3d 1216, 1233 (10th Cir. 2020). The Court, therefore, invited the parties to submit a Stipulated Judgment. (Doc. 87). If the parties could not agree on a Stipulated Judgment, the Court ordered the parties to submit briefing on the issue of an appropriate remedy. Id. In fact, the parties could not agree to a Stipulated Judgment.

The parties have now timely briefed the issue of an appropriate remedy. (Docs. 88, 89, 90, 91, 92, 93, and 94). Having considered the briefing, the controlling law, and for the following reasons, the Court grants Plaintiffs' request to vacate the New Mexico critical habitat designations for the jaguar.

I. Background
A. The Jaguar Critical Habitat

Jaguar habitat extends from South America north to the United States/Mexico borderlands area. 79 Fed. Reg. 12,573 (Mar. 5, 2014). "[J]aguars show a high affinity for lowland wet communities, including swampy savannas or tropical rain forests toward and at middle latitudes," which occur in Central and South America. Id. Hence, "the most robust jaguar populations have been associated with tropical climates in areas of low elevation with dense cover and year-round water sources." Id. Jaguars "are rarely found in extensive arid areas" like those found in the United States/Mexico borderlands area. Id.

In 1972, the Service listed the jaguar as an endangered species. New Mexico Farm and Livestock Bureau, 952 F.3d at 1225. "In 2014, the Service published a final rule designating764,207 acres in New Mexico and Arizona as critical jaguar habitat." Id. at 1220. "The area was divided into six units." Id. Unit 5, the Peloncillo Unit, and Unit 6, the San Luis Unit, "are the subject of this litigation." Id. Unit 5 covers 102,724 acres in both New Mexico and Arizona while Unit 6 covers 7,714 acres in New Mexico. Id. Units 5 and 6 are part of the larger Northwestern Recovery Unit that "include[s] jaguar habitat in the United States and northwestern Mexico." Id. at 1232.

"The Northwestern Recovery Unit comprises only a small portion of the jaguar's range and is divided into so-called 'core' and 'secondary' areas." Id. Core areas contain "evidence of consistent jaguar presence and recent reproduction, whereas secondary areas are characterized by recent records of jaguar presence but little evidence of reproduction." Id. Units 5 and 6 are "part of the Borderlands Secondary Area; the nearest core area-the Sonora Core Area-is about 130 miles south of the U.S.-Mexico border." Id.

In the Final Rule, the Service described the Borderlands Secondary Area as a "more open, dry habitat ... [that] has been characterized as marginal habitat for jaguars in terms of water, cover, and prey densities." Id. (citation omitted). Significantly, "there is no evidence that jaguars were present in Units 5 and 6 at any time before 1995." Id. at 1227. The Service "list[ed] three jaguar sightings in Units 5 and 6: a jaguar track in Unit 5 in 1995, a photograph of a jaguar in Unit 5 in 1996, and a photograph of a jaguar in Unit 6 in 2006." Id. at 1226. In fact, the Service stated that "researchers anticipate that recovery of the entire species will rely primarily on actions that occur outside of the United States" since "such a small portion" of the jaguar's range "occurs in the United States...." 79 Fed. Reg. at 12,574.

Nevertheless, the Service stated in the Final Rule that areas within the Borderlands Secondary Area "support some individuals during dispersal movements, provide small patches ofhabitat (perhaps in some cases with a few resident jaguars), and provide areas for cyclic expansion and contraction of the nearest core area and breeding population ... south of the U.S.-Mexico border...." Id. The Service explained that an independent peer review stated individual jaguars "dispersing into the United States are important because they occupy habitat that serves as a buffer to zones of regular reproduction and are potential colonizers of vacant range, and that, as such, areas supporting them are important to maintaining normal demographics, as well as allowing for possible range expansion." Id.

B. The ESA

The ESA requires the Secretary of the United States Department of Interior (Secretary) to keep "a list of all species determined ... to be endangered species...." 16 U.S.C. § 1533(cc)(1). Once listed as an endangered species, the "ESA sets forth a procedure by which the Service designates critical habitat for endangered species." New Mexico Farm and Livestock Bureau, 952 F.3d at 1221. The ESA defines critical habitat for an endangered species in two ways: occupied critical habitat and unoccupied critical habitat. 16 U.S.C. § 1532(5)(A).

An occupied critical habitat exists in "specific areas within the geographical area occupied by the species, at the time it is listed ... on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection...." 16 U.S.C. § 1532(5)(A)(i).

An unoccupied critical habitat exists in "specific areas outside the geographic area occupied by the species at the time it is listed ... upon a determination by the Secretary that such areas are essential for the conservation of the species." 16 U.S.C. § 1532(5)(A)(ii). Before designating an area unoccupied critical habitat, the Service's regulation requires that the Service first "find designation of occupied critical habitat 'inadequate to ensure the conservation of thespecies.'" New Mexico Farm and Livestock Bureau, 952 F.3d at 1228 (quoting 50 C.F.R. § 424.12 (2013) (stating that "Secretary shall designate as critical habitat areas outside the geographical area presently occupied by a species only when a designation limited to its present range would be inadequate to ensure the conservation of the species")).

Conservation "mean[s] to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary." 16 U.S.C. § 1532(3). "[C]onservation encompasses recovery." New Mexico Farm and Livestock Bureau, 952 F.3d at 1227 (citation omitted).

C. The Service's Critical Habitat Designations

The Service found that jaguars occupied Units 5 and 6 at the time the Service listed the jaguar as an endangered species in 1972. New Mexico Farm and Livestock Bureau, 952 F.3d at 1221. Consequently, the Service "found the Units satisfied the ESA's requirements for occupied critical habitat but noted there was substantial uncertainty in the finding that the Units were occupied." Id. As a result of this substantial uncertainty, the Service "alternatively determined that the Units qualified as unoccupied critical habitat under the ESA." Id.

The critical habitat designations require that certain activities occurring on Unit 5 and Unit 6 "may require special management ..., for example, habitat clearing, the construction of facilities, expansion of linear projects that may fragment jaguar habitat, some fuels-management activities, and some prescribed fire." 79 Fed. Reg. at 12,594.

D. The Lawsuit

Plaintiffs challenged both the occupied and unoccupied critical habitat determinations for Unit 6 and the New Mexico portion of Unit 5 as arbitrary and capricious. Plaintiffs sued theUnited States Department of the Interior, the Secretary, the Service, and the Service's Director. The current intervenors are Defendant-Intervenors Center for Biological Diversity and Defenders of Wildlife.

In ruling in favor of the Service, this Court determined that the Service's occupied critical habitat determination was arbitrary and capricious but that its alternative unoccupied critical habitat determination was not arbitrary and capricious, and, thus, legally valid. On appeal, the Tenth Circuit "agree[d] with the district court that the Service's designation of Units 5 and 6 as occupied critical habitat was arbitrary and capricious." New Mexico Farm and Livestock Bureau, 952 F.3d at 1227. The Tenth Circuit, however, disagreed with this Court's ruling regarding the Service's unoccupied critical habitat determination.

In reversing the Court's decision as to the Service's unoccupied critical habitat determination, the Tenth Circuit observed that the Service acknowledged in its Final Rule "that the lack of jaguar sightings...

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