WildEarth Guardians v. U.S. Dep't of Justice

• Decision Date: 27 July 2015
• Docket Number: CV-13-392-TUC DCB
• Citation: 181 F.Supp.3d 651
• Parties: WildEarth Guardians, et al, Plaintiffs, v. United States Department of Justice, Defendant.
• Court: U.S. District Court — District of Arizona

181 F.Supp.3d 651

WildEarth Guardians, et al, Plaintiffs,

v.United States Department of Justice, Defendant.

CV-13-392-TUC DCB

United States District Court, D. Arizona.

Signed July 27, 2015

Judith Bella Calman, Attorney at Law, Albuquerque, NM, Steven Charles Sugarman, Steven Sugarman, Cerrillos, NM, for Plaintiffs.

Kevin William McArdle, U.S. Dept of Justice, Washington, DC, for Defendant.

ORDER

David C. Bury, United States District Judge

The Court denies the Motion to Dismiss and allows Plaintiffs to file a Second Amended Complaint to conform the pleading to the evidence, with Defendant to answer thereafter.

Plaintiffs, WildEarth Guardians and New Mexico Wilderness Alliance, challenge a United States Department of Justice (DOJ) litigation policy: the "McKittrick Policy." In United States v . McKittrick , 142 F.3d 1170, 1177 (9th Cir.1998), the Ninth Circuit Court of Appeals determined that the knowledge element for the criminal misdemeanor offense of "taking" an endangered species was: the defendant knew he was shooting an animal, and the animal shot was a Mexican gray wolf; "McKittrick need not have known he was shooting a wolf to ‘knowingly violate[ ]’ the regulation protecting the experimental population" Id. According to the court, Congress changed the wording of 16 U.S.C. 1540(b)(1) in 1978 from "willfully" to "knowingly," making the offense a general rather than a specific intent crime. Id.

McKittrick, convicted on this instruction, petitioned for a writ of certiorari and the Government responded that it would no longer use the general knowledge instruction. The Supreme Court denied certiorari, and on February 12, 1999, the Defendant distributed to all Assistant United States Attorneys a policy statement that it would no longer use the mens rea knowledge instruction approved in McKittrick. Instead, federal prosecutors request a specific intent instruction requiring the Government to prove beyond a reasonable doubt that the alleged shooter knew the biological identity of the animal at the time of the shooting.

It is undisputed that McKittrick remains good law. In 2000, the Ninth Circuit distinguished between the jury instruction for the general intent crime for illegally "taking" a Mexican gray wolf and mens rea required for the specific intent crime of removing an archeological resource. States v. Lynch , 233 F.3d 1139 (9th Cir.2000). The court described the difference as hinging on Congressional intent to halt and reverse extinction of the Mexican gray wolf and because the offense was a misdemeanor as compared to Congressional concern that only defendants who know or have reason to know that they are removing an archeological resource be found guilty of a felony violation of the Archeological Resources Protection Act (ARPA). Id.see also United States v. Kapp , 2003 WL 23162408 *9 (N.D.Ill. November 6, 2003) (finding Government met its burden where jury instruction allowed for presumption of knowledge where Government proved defendant knew animal he shot looked like a tiger or leopard), United States v. Zak , 486 F.Supp.2d 208, 218 n. 10 (D.Mass.2007) (finding reason obscure why government chose to focus on charge of shooting bald eagle in "wanton disregard for the consequence of his act" instead of simpler theory of "knowingly" taking eagle; where government charged both, the court is not bound by government's choice and may find defendant guilty of both where evidence satisfied McKittrick definition of knowingly).

Plaintiffs allege the McKittrick policy constitutes a violation of DOJ's responsibility under the Endangered Species Act (ESA) to take no action which may adversely affect a threatened species without first consulting with the Fish and Wildlife Service (FWS). Plaintiffs allege the McKittrick policy violates the Administrative Procedures Act (APA) because it is arbitrary, irrational, and an express policy that completely abdicates DOJ's responsibility to enforce the criminal penalties provision of the ESA. Plaintiffs allege that DOJ's ESA and APA violations adversely impact the sustainability of Mexican gray wolves because illegal killings are the biggest risk facing the reintroduction of the Mexican gray wolf.

Plaintiffs assert that Congress designed the offense as a general intent crime to preclude a defense of mistake to ensure vigorous enforcement, which is necessary to ensure that " ‘[h]unters (and others) who might shoot a wolf are responsible to identify their targets before shooting.’ " (Second Amended Complaint (SAC) (Doc. 23) ¶ 18) (quoting Final Rule, 63 Fed. Reg. 1758, 1759 (Jan 12, 1998) ). The Final Rule adopted by the Fish and Wildlife Service (FWS) for the wolf reintroduction program provides: "Taking a wolf by shooting will not be considered unavoidable, accidental, or an unintentional take" that is immune from criminal prosecution under the ESA." 50 C.F.R. § 17.84(k)(15). Laws of the United States include both federal statutes and federal regulations. Reid v. Johnson & Johnson , 780 F.3d 952, 963–964 (2015). An agency, like FWS, charged with making such rules carrying the force of law is afforded deference in its interpretation of the statute it is charged with administering. United States v. Smith , 740 F.Supp.2d 1111, 1122 (D.Ariz.2010). Plaintiffs argue that the DOJ McKittrick policy violates the law passed by Congress and interpreted by FWS in the Final Rule for the Mexican gray wolf reintroduction and conservation program.

Defendant seeks dismissal, pursuant to Fed. R. Civ. P. 12(b), for three reasons: lack of jurisdictional standing, the claims are time barred, and the Second Amended Complaint (SAC) fails to state a claim.

Defendant's motion to dismiss asserts Plaintiffs lack Article III standing because a private citizen lacks standing to contest the prosecution or non-prosecution of another person. Defendant argues that the APA and ESA claims are barred by a six-year statute of limitations period because the challenged policy was adopted in 1999, with suit brought in 2013. Defendant argues Plaintiffs fail to state an APA claim because enforcement is a matter committed to agency discretion by law, especially non-enforcement decisions. Defendant argues Plaintiffs fail to state an ESA claim because ESA consultation provisions govern only agency action, not inaction.

A. Rule 12(b)(1) and (6) Motion to Dismiss

Defendant's Motion to Dismiss for lack of jurisdictional standing, pursuant to Rule 12(b)(1), attacks the SAC on its face. Plaintiff bears the burden to establish jurisdiction by a preponderance of the evidence. Lujan v. Defenders of Wildlife , 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). But unlike a motion to dismiss under Rule 12(b)(6), the Court is not limited under Rule 12(b)(1) to the allegations of the complaint, but may consider evidence outside the pleadings to resolve the question of whether it has jurisdiction to hear the case. McCarthy v. United States , 850 F.2d 558, 560 (9th Cir.1988).

Pursuant to Rule 12(b)(6), Defendant charges that the SAC fails to allege sufficient facts to state a claim for relief that is plausible on its face. To survive this motion, the SAC must contain "factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true even if doubtful in fact."

Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citations and internal quotations omitted). All factual allegations are taken as true and construed in the light most favorable to the nonmoving party, Iolab Corp. v. Seaboard Sur. Co. , 15 F.3d 1500, 1504 (9th Cir.1994), and all reasonable inferences are to be drawn in favor of that party as well. Jacobs o n v. Hughes Aircraft , 105 F.3d 1288, 1296 (9th Cir.1997). Dismissal is appropriate if the facts alleged do not state a claim that is " ‘plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ). Plausibility is not attained if the facts are merely consistent with his claims. Twombly , 550 U.S. at 545, 557, 127 S.Ct. 1955. "Where a complaint pleads facts that are ‘merely consistent with’ a defendant's liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.’ " Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly , 550 U.S. at 557, 127 S.Ct. 1955 ).

B. Article III Standing

Article III of the United States Constitution includes perhaps the most important jurisdictional doctrine: the "case" or "controversy" provision. M – S – R Pub. Power Agency v. Bonneville Power Admin. , 297 F.3d 833, 843 (9th Cir.2002). Federal jurisdiction hinges on there being an irreducible constitutional minimum of standing for all federal court plaintiffs, which requires a showing that (1) the plaintiff suffered an injury in fact, i.e., one that is sufficiently concrete and particularized and actual or imminent, not conjectural or hypothetical, (2) the injury is fairly traceable to the challenged conduct, and (3) the injury is likely to be redressed by a favorable decision. Lujan , 504 U.S. at 560–61, 112 S.Ct. 2130, M o nsanto Co. v. Seed Farms , 561 U.S. 139, 130 S.Ct. 2743, 177 L.Ed.2d 461 (2010), see also Bates v. United Parcel Serv. , 511 F.3d 974, 985 (9th Cir.2007).

The doctrine limits the role of the judiciary in our dual system of government. It ensures the separation of powers by keeping the judiciary from usurping the powers of the other two branches of the federal government: the legislative and executive branches. Defendant argues that these citizen-plaintiffs lack standing as a matter of law to contest the policies of the prosecuting authority, the DOJ, because they are neither prosecuted nor threatened with prosecution. Linda R.S. v. Richard D. , 410 U.S. 614, 619, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973) ; Leeke v. Timmerman , 454 U.S. 83, 86–87, 102 S.Ct. 69, 70...