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

• Decision Date: 15 April 2022
• Docket Number: 21-2019
• Citation: 30 F.4th 1210
• Parties: NORTHERN NEW MEXICO STOCKMAN'S ASSOCIATION; Otero County Cattleman's Association, Plaintiffs - Appellants, v. UNITED STATES FISH AND WILDLIFE SERVICE ; Greg Sheehan, Principal Deputy Director & Acting Director of the United States Fish & Wildlife Service, in his official capacity, Defendants - Appellees. Center for Biological Diversity ; Wildearth Guardians, Intervenors - Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

30 F.4th 1210

NORTHERN NEW MEXICO STOCKMAN'S ASSOCIATION; Otero County Cattleman's Association, Plaintiffs - Appellants,

v. UNITED STATES FISH AND WILDLIFE SERVICE ; Greg Sheehan, Principal Deputy Director & Acting Director of the United States Fish & Wildlife Service, in his official capacity, Defendants - Appellees.Center for Biological Diversity ; Wildearth Guardians, Intervenors - Appellees.

No. 21-2019

United States Court of Appeals, Tenth Circuit.

FILED April 15, 2022

Jeffrey W. McCoy, Pacific Legal Foundation, Sacramento, California (Damien M. Schiff and Anthony L. Francois, Pacific Legal Foundation, Sacramento, California; A. Blair Dunn, Western Agriculture, Resource and Business Advocates, LLP, Albuquerque, New Mexico, with him on the briefs), for Plaintiffs-Appellants.

Ryan Adair Shannon, Center for Biological Diversity, Portland, Oregon (Samantha Ruscavage-Barz, WildEarth Guardians, Santa Fe, New Mexico, with him on the brief), for Intervenors-Appellees.

Rachel Heron, Attorney, U.S. Department of Justice, Environment and Natural Resources Division, Washington, D.C. (Todd Kim, Assistant Attorney General, Andrew C. Mergen, Kevin McArdle, and Devon Lea Flanagan, Attorneys, United States Department of Justice, Environment and Natural Resources Division, Washington, D.C.; Justin Tade, Of Counsel, Senior Attorney, Office of the Solicitor, United States Department of the Interior, Washington, D.C., with her on the brief), for Defendants-Appellees.

Before TYMKOVICH, Chief Judge, PHILLIPS, and McHUGH, Circuit Judges.

TYMKOVICH, Chief Judge.

This appeal arises from the U.S. Fish and Wildlife Service's designation of critical habitat for the endangered New Mexico Meadow Jumping Mouse. In 2016, the Service exercised its authority under the Endangered Species Act (ESA) to designate nearly 14,000 acres of riparian land in New Mexico, Colorado, and Arizona as critical habitat for the Jumping Mouse.

Two New Mexico ranching associations whose members graze cattle on the designated land challenged the Service's critical habitat determination. The associations contend (1) the Service's methodology for analyzing economic impacts of critical habitat designation violated the ESA and Tenth Circuit precedent; (2) the Service failed to consider the impact of designation on ranchers’ water rights on federal lands; and (3) the Service provided inadequate reasoning for its decision to not exclude certain areas from the habitat designation. The district court rejected each argument and upheld the Service's critical habitat designation.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. We conclude (1) the Service's method for assessing the economic impacts of critical habitat designation complied with the ESA; (2) the Service adequately considered the effects of designation on the ranching association members’ water rights; and (3) the Service reasonably supported its decision not to exclude certain areas from the critical habitat designation.

I. Background

The purpose of the ESA is to conserve threatened and endangered species and their ecosystems. 16 U.S.C. § 1531(b). To accomplish that goal, the ESA "directs the Secretaries of Commerce and the Interior to list threatened and endangered species and to designate their critical habitats."¹ Nat'l Ass'n of Home Builders v. Defs. of Wildlife , 551 U.S. 644, 651, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007) ; 16 U.S.C. § 1533.

A. The Jumping Mouse

The New Mexico Meadow Jumping Mouse is a tiny brown mammal with a long tail that accounts for over half its length. As its name suggests, the mouse is a highly skilled jumper—wildlife biologists have observed adult mice jumping as high as three feet, which is over ten times the length of the Jumping Mouse's body. The majority of New Mexico Meadow Jumping Mice can be found in New Mexico, but nearby Arizona and Colorado also contain several populations.

New Mexico Meadow Jumping Mouse

The Jumping Mouse's struggle to persist can be traced to its unique hibernation cycle and "exceptionally specialized habitat requirements." Intervenors’ Supp. App. (Int.-App.) at 110. Unlike most other mammals, the Jumping Mouse is only active in the summer months—it spends the rest of the year in hibernation. Because of this atypical hibernation cycle, the Jumping Mouse's survival hinges on its ability to quickly gather enough nutrients and nest materials from its surrounding habitat, which is generally comprised of dense vegetation alongside perennial flowing water. Jumping Mouse populations are highly vulnerable in part due to habitat loss and degradation, which can be caused by a variety of factors, including drought, wildfires, flooding, and animals such as cattle and beavers that modify the surrounding habitat. The Jumping Mouse's relatively short lifespan and low fecundity also affect its ability to thrive. The mice typically live up to three years and give birth to one small litter of young each year.

In 2013, the Service proposed listing the Jumping Mouse as an endangered species. 78 Fed. Reg. 37363 (2013). In its proposed rule, the Service noted that since 2005, researchers have only documented 29 geographically distinct populations of the Jumping Mouse, though the Service suspected that 11 of those populations may already have been extirpated. Id. at 37365. The Service also expressed concern that seven populations in Arizona may have been compromised due to flooding after several recent wildfires. Id. Based on these precarious circumstances, the Service surmised that the Jumping Mouse faced an immediate and substantial risk of extinction. Id. at 37367.

On the same day it published its proposed rule for listing the Jumping Mouse as endangered, the Service issued a proposed rule designating the Jumping Mouse's critical habitat. 78 Fed. Reg. 37328 (2013). Because the Service must consider economic impacts when designating critical habitat, the Service solicited comments concerning "[a]ny foreseeable economic ... impacts that may result from designating any area." Id. at 37329. The Service later provided a draft economic analysis to the public and requested additional comments on the analysis. In total, the Service received 63 comment letters addressing the proposed critical habitat designation during the public comment period.

In March 2016, the Service published a final rule designating about 14,000 acres in New Mexico, Arizona, and Colorado as critical habitat for the Jumping Mouse.² 81 Fed. Reg. 14264 (2016). The designated habitat consists of riparian areas with thick vegetation and flowing water that are either currently occupied by the Jumping Mouse or unoccupied but essential to the conservation of the species.³ The Service divided the critical habitat into eight units, three of which include subunits. Many of the units contain a mix of land owned by the federal government, state government, or private citizens.

In its final rule, the Service responded to each public comment. Many of the comments encouraged the Service to designate more land as critical habitat, while other comments raised doubts about whether the proposed areas satisfied the definition of critical habitat and questioned why the Service did not account for certain costs of designation.

Along with the final rule designating critical habitat, the Service published its final analysis of the economic impacts of the habitat designation. The analysis, which was performed by a private contractor, Industrial Economics, Inc. (IEc), included an assessment of the costs and benefits of designating critical habitat for the Jumping Mouse. Based on guidance from the U.S. Office of Management and Budget (OMB), IEc utilized a methodology known as the "baseline approach" to determine which costs must be included in the economic analysis. Under the baseline approach, the Service only considers costs that are "solely attributable to the designation of critical habitat" and ignores costs that would exist regardless of the habitat designation. App., Vol. 1 at 127. Thus, for example, if a cost is attributable to both the listing of a species as endangered and the designation of its critical habitat, then the Service would not consider the cost in its economic impact analysis. In accordance with this approach, IEc did not consider "any existing regulatory and socio-economic burden imposed on landowners, managers, or other resource users absent the designation of critical habitat" for the Jumping Mouse. Id.

The Service estimated the costs associated with critical habitat designation at $23 million. The Service attributed a minor portion of those costs to future federal agency consultations, which the ESA requires for any federal action likely to destroy or adversely modify the critical habitat of an endangered or threatened species. 16 U.S.C. § 1536(a)(2). The Service determined that most costs would arise from efforts to reduce the impact of livestock grazing on the Jumping Mouse's habitat. During the rulemaking process, the Service recognized that livestock grazing presents a unique threat to the Jumping Mouse and its habitat because "cattle tend to concentrate their activity in riparian habitat." Int.-App. at 195. According to the Service, poorly managed grazing harms the Jumping Mouse by causing "trampling of streambanks, burrow collapse, loss of riparian cover, soil compaction, modification of riparian plant communities, lower[ ] water tables ... a decline in herbaceous plant diversity, and a loss of riparian shrubs." Id. To combat these harms, the Service anticipated costs for constructing cattle fences to steer livestock away from the Jumping Mouse's habitat, as well as the potential costs of reducing animal unit months⁴ on U.S. Forest Service grazing allotments. IEc also contemplated that ranchers who graze livestock in the critical habitat areas may need to shift their cattle rotation patterns or develop alternative water sources to minimize the degradation of the Jumping Mouse's riparian habitat.

The...