N. N.M. Stockman's Ass'n v. U.S. Fish & Wildlife Serv.

• Court: United States District Courts. 10th Circuit. District of New Mexico
• Citation: 494 F.Supp.3d 850
• Docket Number: No. CIV 18-1138 JB\JFR,CIV 18-1138 JB\JFR
• Parties: NORTHERN NEW MEXICO STOCKMAN'S ASSOCIATION and Otero County Cattleman's Association, Plaintiffs, v. UNITED STATES FISH & WILDLIFE SERVICE and Greg Sheehan, Principal Deputy Director & Acting Director of the United States Fish & Wildlife Service, in his official capacity, Defendants, and Center for Biological Diversity and WildEarth Guardians, Intervenors.
• Decision Date: 13 October 2020

494 F.Supp.3d 850

NORTHERN NEW MEXICO STOCKMAN'S ASSOCIATION and Otero County Cattleman's Association, Plaintiffs,
v.
UNITED STATES FISH & WILDLIFE SERVICE and Greg Sheehan, Principal Deputy Director & Acting Director of the United States Fish & Wildlife Service, in his official capacity, Defendants,
and
Center for Biological Diversity and WildEarth Guardians, Intervenors.

No. CIV 18-1138 JB\JFR

United States District Court, D. New Mexico.

Filed October 13, 2020

Anthony L. Franco, Damien M. Schiff, Jeffrey M. McCoy, Pacific Legal Foundation, Sacramento, California --and-- A. Blair Dunn, Wester Agriculture, Resource and Business Advocates, LLP, Albuquerque, New Mexico, Attorneys for the Plaintiffs.

John C. Anderson, United States Attorney, Manuel Lucero, United States Assistant Attorney, United States Attorney's Office for the District of New Mexico, Albuquerque, New Mexico --and-- William Barr, United States Attorney General, Jean E. Williams, United States Deputy Assistant Attorney General, Seth M. Barsky, Wildlife and Marine Resources Section Chief, Meredith L. Flax, Wildlife and Marine Resources Section Assistant Chief, Washington, D.C., Devon L. Flanagan, U.S. Department of Justice, Environment & Natural Resources Division-Appellate Section, Washington, DC, Attorneys for the Defendants.

John Buse, Center for Biological Diversity, Oakland, California --and-- Ryan Shannon, Center for Biological Diversity, Portland, Oregon, Attorneys for Intervenors.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on: (i) the Plaintiffs’ Opening Brief in Support of Petition for Review, filed August 8, 2019 (Doc. 26)("Petition"); (ii) Petitioners’ Brief on Remedy, filed December 6, 2019 (Doc. 40)("P. Remedy Brief"); (iii) Federal Respondents’ Brief on Remedy, filed December 6, 2019 (Doc. 41)("D. Remedy Brief"); and (iv) Respondent-Intervenors’ Brief on Remedy, filed December 6, 2019 (Doc. 42)("I. Remedy Brief"). The Court held a hearing on October 31, 2019. The primary issues are: (i) whether Plaintiffs Northern NM Stockman's Association

494 F.Supp.3d 859

("Northern NM Stockman's Association") and Otero Cattleman's Association ("Otero Cattleman's Association")(collectively, "the Stockman's Associations") suffer economic injury to establish associational standing under Article III of the Constitution of the United States of America to challenge the decision made by Defendants United States Fish & Wildlife Service and its Principal Deputy director and acting director, Greg Sheehan (collectively, "Fish & Wildlife"), to designate land on which members of the Stockman's Associations graze cattle as critical habitat designation¹ ("the designation") for the New Mexico Meadow Jumping Mouse ("Jumping Mouse"); (ii) whether Fish & Wildlife's use of the "incremental effects" approach² -- which the United States Court of Appeals for the Tenth Circuit explicitly rejected in 2001, see New Mexico Cattle Growers Ass'n v. U.S. Fish and Wildlife Service, 248 F.3d 1277, 1285-86 (10th Cir. 2001)³ -- when Fish & Wildlife considered economic impacts associated with the designation, violates Section 4(b)(2) of the Endangered

494 F.Supp.3d 860

Species Act, 16 U.S.C. § 1552(b)(2), and the Administrative Procedure Act, 5 U.S.C. § 706 ("APA"); (iii) whether Fish & Wildlife abused its discretion by not considering designation costs, such as compensating the members of the Stockman's Associations for reducing the value of their water rights with respect to property within the designation, an interference which the Stockman's Associations allege amounts to a taking under the Fifth Amendment to the Constitution of the United States of America; (iv) whether the Stockman's Associations administratively waived their claims challenging Fish & Wildlife's decision not to exclude particular units of land -- Units 3 and 4⁴ -- from the designation, because no Stockman's Associations members raised this issue for these units, except for subunit 3C, during the proposed designation's public comment period; (v) whether a sufficiently reasoned explanation supports Fish & Wildlife's conclusion not to exclude Units 3 and 4 from the designation, because it could not identify any disproportionate costs; and (vi) whether the Court should vacate the designation in its entirety, or tailor vacatur in a manner that leaves untouched critical habitat protections for the Jumping Mouse, should the Court remand to Fish & Wildlife to comply with its statutory obligations. The Court concludes that: (i) the Stockman's Associations show sufficient concrete economic injuries to establish Article III associational standing to challenge Fish & Wildlife's critical habitat designation for the Jumping Mouse species; (ii) Fish & Wildlife's decision to use the incremental effects approach to consider economic impacts associated with the designation is consistent with the Endangered Species Act's § 4(b)(2); (iii) Fish & Wildlife did not abuse its discretion by failing to consider other designation costs, such as compensating the members of the Stockman's Associations for reducing the value of their water rights, and the interference with members’ water rights does not amount to a taking under the Fifth Amendment; (iv) the Stockman's Associations administratively waived their claims challenging Fish & Wildlife's decision not to exclude Units 3 and 4 from the designation because no member of the Stockman's Associations raised any challenge to the inclusion of these units, except for subunit 3c, during the proposed designation's public comment period; (v) notwithstanding the waiver, however, Fish & Wildlife has provided a sufficiently reasoned explanation to support its conclusion not to exclude Units 3 and 4 from the designation pursuant to the Endangered Species Act's § 4(b)(2) and its internal Section 4(b)(2) Policy governing its decision-making standards regarding exclusion. Furthermore, because of the Court's rejection of the Stockman's Associations challenges here, it deems remedy unnecessary in this case. If the Court were to have ruled favorably on any one of the aforementioned questions, however, the Court would not still vacate the critical habitat designation in its entirety; rather, it would tailor vacatur in a narrow manner as to address only the units in which the Stockman's Associations’ members show concrete injuries. This tailored

494 F.Supp.3d 861

vacatur, therefore, would leave untouched remaining units of the critical habitat designation.

FACTUAL BACKGROUND

This case involves Fish & Wildlife's designation of critical habitat ("the designation") for the New Mexico Meadow Jumping Mouse ("the Jumping Mouse") pursuant to the Endangered Species Act, 16 U.S.C. §§ 1531 - 1544. The Northern NM Stockman's Association consists of individuals who are involved in the livestock industry in northern New Mexico, and the Otero Cattleman's Association consists of New Mexico ranchers whose families have been ranching for generations. See Petition for Review and Complaint for Declaratory and Injunctive Relief ¶¶ 8-9, at 3-4, filed December 6, 2018 (Doc. 1)("Complaint"); Petition at 8-9. Part of the designation encompasses land on which members of the Stockman's Associations hold grazing allotments and maintain water rights. See Complaint ¶¶ 35-38, at 9. The Court provides the following background information regarding: (i) the Jumping Mouse's habitat and characteristics; (ii) Fish & Wildlife's procedure to list the Jumping Mouse as an endangered species and to designate critical habitat for the Jumping Mouse; (iii) Fish & Wildlife's decision to list the Jumping Mouse as an endangered species; (iv) Fish & Wildlife's economic analysis of the designation's impact; (v) the designation's scope, size, and locations; (vi) Fish & Wildlife's decisions to exclude and not exclude certain areas from the designation; and (vii) the grazing allotments that members of the Stockman's Associations hold. The parties largely do not contest these facts.

1. The Jumping Mouse.

The Jumping Mouse is a small rodent that is found in wetlands and near streams in New Mexico, eastern Arizona, and southern Colorado. See NM Meadow Jumping Mouse: Home Page, United States Department of Agriculture, https://www.fs.usda.gov/detail/r3/home/?cid=STELPRD3809040 (last visited September 2, 2020)("Jumping Mouse Home Page"). The Jumping Mouse is approximately seven to nine inches in length, and its tail accounts for more than half its length. See New Mexico Meadow Jumping Mouse at 1, Colorado Parks & Wildlife (Feb. 2019), https://cpw.state.co.us/Documents/LandWater/WetlandsProgram/PrioritySpecies/Factsheet_and_Habitat_Scorecard_NMMeadowJumpingMouse.pdf (last visited September 2, 2020)("Jumping Mouse Fact Sheet"). People in the southwest United States refer to the Jumping Mouse as the kangaroo mouse or the kangaroo rat, because it "looks somewhat like a tiny kangaroo," and because it "can leap more than 2 feet into the air." Susan Montoya Bryan, "Endangered New Mexico meadow jumping mouse populations discovered," The Columbian (Nov. 2, 2016), https://www.columbian.com/news/2016/nov/02/endangered-new-mexico-meadow-jumping-mouse-populations-discovered/ (last visited September 2, 2020). The Jumping Mouse is primarily nocturnal, see Jumping Mouse Fact Sheet at 1,...