New Mexico Cattle Growers v. U.S. Fish & Wildlife, No. 98-0275 LH/DJS-ACE.

• Court: United States District Courts. 10th Circuit. District of New Mexico
• Writing for the Court: Hansen
• Citation: 81 F.Supp.2d 1141
• Parties: NEW MEXICO CATTLE GROWERS ASSOCIATION, a nonprofit organization on behalf of itself and its members, New Mexico Public Lands Council, a nonprofit corporation on behalf of itself and its members, New Mexico Wool Growers, Inc., a nonprofit corporation on behalf of itself and its members, New Mexico Farm & Livestock Bureau, a nonprofit corporation on behalf of itself and its members, New Mexico Wheat Growers Association, a nonprofit corporation on behalf of itself and its members, Production Credit Association of New Mexico, Coalition of Arizona, and New Mexico Counties for Stable Economic Growth, a nonprofit organization on behalf of itself and its members, and Hidalgo County Cattle Growers Association, a nonprofit organization on behalf of itself and its members, Plaintiffs, v. UNITED STATES FISH AND WILDLIFE SERVICE, an agency of the United States Department of the Interior, Bruce Babbitt, Secretary of the United States Department of the Interior, John Rogers, United States Fish and Wildlife Service Director, and Fish and Wildlife Service Regional Director, and Nancy Kaufman, Southwest Regional Director, United States Fish and Wildlife Service, Defendants.
• Docket Number: No. 98-0275 LH/DJS-ACE.
• Decision Date: 21 December 1999

81 F.Supp.2d 1141 NEW MEXICO CATTLE GROWERS ASSOCIATION, a nonprofit organization on behalf of itself and its members, New Mexico Public Lands Council, a nonprofit corporation on behalf of itself and its members, New Mexico Wool Growers, Inc., a nonprofit corporation on behalf of itself and its members, New Mexico Farm & Livestock Bureau, a nonprofit corporation on behalf of itself and its members, New Mexico Wheat Growers Association, a nonprofit corporation on behalf of itself and its members, Production Credit Association of New Mexico, Coalition

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of Arizona, and New Mexico Counties for Stable Economic Growth, a nonprofit organization on behalf of itself and its members, and Hidalgo County Cattle Growers Association, a nonprofit organization on behalf of itself and its members, Plaintiffs,
v.
UNITED STATES FISH AND WILDLIFE SERVICE, an agency of the United States Department of the Interior, Bruce Babbitt, Secretary of the United States Department of the Interior, John Rogers, United States Fish and Wildlife Service Director, and Fish and Wildlife Service Regional Director, and Nancy Kaufman, Southwest Regional Director, United States Fish and Wildlife Service, Defendants. No. 98-0275 LH/DJS-ACE. United States District Court, D. New Mexico. December 21, 1999.

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Lee E. Peters, Hubert & Hernandez, Las Cruces, NM, Karen Budd-Falen, Budd Falen & Associates, Cheyenne, WY, for plaintiffs.

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John W. Zavitz, U.S. Attorney's Office, Albuquerque, NM, John J. Kelly, U.S. Attorney's Office, Albuquerque, NM, Richard A. Monikowski, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, Andrea Berlowe, U.S. Department of Justice, Environmental & Natural Resources Div, Washington, DC, Janet Spaulding, U.S. Department of Interior, Office of Regional Solicitor, Albuquerque, NM, Stephanie M Parent, U.S. Department of Justice, Environmental Natural Resources Division, Washington, DC, Lois J. Schiffer, U.S. Department of Justice, Environmental Enforcement Section, Washington, DC, Andrew A Smith, U.S. Department of Justice, Land & Natural Resources Div, Denver, CO, Ben Jesup, Department of the Interior, Office of Solicitor, Washington, DC, for defendants.

MEMORANDUM OPINION AND ORDER

HANSEN, District Judge.

THIS MATTER comes before the Court on Plaintiffs' Motion to Strike Standing Argument, or in the Alternative, Plaintiffs' Opposition to Defendants' Motion to Dismiss for Lack of Standing¹ (Docket No. 46). The Court, having considered the briefs of the parties and the relevant case-law, and being fully advised in the premises, for the reasons that follow, concludes that Plaintiffs have standing and that their motion shall be granted.

Further, as set forth below, two related motions, Federal Defendants' Motion and Memorandum to Strike Plaintiffs' April 15, 1999 Extraneous Legal Argument and Exhibits Thereto (Docket No. 65) and Plaintiff's Motion to Strike Declaration of Jamie Rappaport Clark and Attachments Thereto (Docket No. 48), shall be denied.

Finally, the Court has considered Plaintiffs' Opening Brief (Docket No. 25) and all related briefs, caselaw and exhibits. For the reasons that follow, I conclude that, on the merits, the actions of the United States Fish and Wildlife Service do not violate the Endangered Species Act, the National Environmental Policy Act or the Administrative Procedures Act, and that these actions shall be upheld and affirmed. A Final Judgment will be filed contemporaneously and in conformity with this Memorandum Opinion and Order.

I. Background

The U.S. Fish and Wildlife Service ("FWS" or "the Service") published its Proposed Rule to List the Southwestern Willow Flycatcher As Endangered With Critical Habitat on July 23, 1993. (Administrative Record ("AR") at 367). That publication contained the first solicitation for data and comments regarding listing and critical habitat designation. Id. The FWS ultimately issued its Final Rule Determining Endangered Status for the Southwestern Willow Flycatcher on February 27, 1995. (AR at 3877). That rule deferred the designation of critical habitat. (AR at 3897). The FWS reopened the comment period for the critical habitat designation for a sixty (60) day period. Id.

The designation languished until March 20, 1997, when the United States District Court for the District of Arizona ordered the FWS to designate critical habitat for the Southwestern Willow Flycatcher ("SWF") within the next 120 days. (AR at 4447). The court subsequently clarified its order, noting that the time frame was provided for the FWS to decide whether or not to designate critical habitat. Id.

On July 22, 1997, the FWS published a final rule designating critical habitat for the SWF. See AR 4446. FWS designated eighteen (18) critical habitat units totaling 599 river miles in Arizona, California, and New Mexico (AR at 4454). In doing so, the FWS considered various physical and biological features as essential to the conservation

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of the SWF and potentially requiring special management considerations (AR at 4449). These features yielded a description of physical characteristics of critical habitat. (AR at 4450). The FWS selected the critical habitat areas because they contain the remaining known flycatcher nesting sites, and/or formerly supported nesting flycatchers, and/or have the potential to support nesting flycatchers. Id. The FWS identified activities that may adversely modify critical habitat (AR at 4452).²

In its attempt to address economic impacts under the Endangered Species Act, see 16 U.S.C. § 1533(b)(2), and ecological, aesthetic, historic, cultural, economic, social, and health effects under the National Environmental Policy Act, see 40 C.F.R. § 1508.8, the FWS adopted a "baseline" which attributed all impacts to the listing of the SWF. In its June 1997 economic analysis, FWS purportedly measured economic effects based on changes in national income, and regional jobs and household income (AR at 4466), and found that the critical habitat designation would have no incremental effect beyond that caused by listing. The FWS published an Environmental Assessment ("EA") of the designation for the SWF on July 3, 1997, (AR at 4486), analyzing 3 alternatives (AR 4492-4497). On October 16, 1997, the FWS issued its Finding Of No Significant Impact ("FONSI") (AR at 4522-4523).³

This lawsuit was filed on March 6, 1998, when Plaintiffs filed a complaint contending that Defendants violated the Endangered Species Act ("ESA" or "Act"), 16 U.S.C. § 1531, et seq., the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., and the Administrative Procedures Act ("APA"), 5 U.S.C. § 551, et seq., with regard to critical habitat designation ("CHD" or "designation") for the SWF. Plaintiffs specifically make two claims. They contend that the FWS did not follow proper procedures pursuant to the ESA in the consideration of economic impacts and the best scientific data available, and that it improperly designated nonessential areas when it made the critical habitat designation. Second, Plaintiffs allege that the Service's environmental assessment ("EA") pursuant to NEPA was inadequate because the Service did not take a "hard look" at the impacts of designation, that it did not address adequate alternatives, that it did not cooperate with state and local agencies, and that the FWS "finding of no significant impact" was erroneous.

Defendants contend, contrary to Plaintiffs' claims set forth above, that FWS properly evaluated economic impacts, taking an incremental approach that considers only impacts that would not occur but for the CHD. FWS also argues that it correctly determined that, for the SWF, there were no economic impacts solely attributable to designation of critical habitat, because the SWF's scarce habitat was already protected for the conservation and recovery of the species. Further, the FWS argues that the scope of the NEPA review was adequate, in consideration of the impact of the designation. FWS summarizes that the critical habitat designation was well-grounded in the record and supported by the best available information.

The FWS answered the complaint on May 22, 1998. On June 8, 1998, Magistrate Judge Svet issued an "Initial Scheduling

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Order." On August 20, 1998, the Court approved the briefing schedule proposed by the parties and issued an order mandating that the Federal Defendants file the administrative record by August 31, 1998

The Federal Defendants filed the administrative record on August 30, 1998. The Plaintiffs filed their objections to the administrative record on September 24, 1998, and the Federal Defendants filed their Response to Plaintiffs' Objection on October 2, 1998.⁴

On November 12, 1998, Plaintiffs filed their Opening Brief. The Federal Defendants filed a Response Brief on January 29, 1999, which included a Declaration of Jamie Rappaport Clark, Director of the Fish and Wildlife Service, and seven accompanying attachments. In addition, the Response Brief contained argument that the Plaintiffs lack standing to bring this case. On March 1, 1999, Plaintiffs filed their Reply Brief. Part II of this Reply Brief included Exhibits 2-5 in support of their arguments in favor of standing. Plaintiffs also filed a Motion to Strike Standing Argument, or in the Alternative, Plaintiffs' Opposition to Defendants' Motion to Dismiss for Lack of Standing (Docket No. 46), with accompanying attachments. Plaintiffs also filed a Motion to Strike the Declaration of Jamie Rappaport Clark (Docket No. 48).

On May 10, 1999, Defendants filed a motion to strike Plaintiffs' Exhibits 2-5 (Docket No. 65).⁵ The gist of Defendants' argument is that Plaintiffs' Reply Brief contains irrelevant material that was not previously raised in Plaintiffs' initial brief on standing....