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The Humane Society of United States v. Kienzle

United States District Court, D. New Mexico

January 9, 2017

PAUL M. KIENZLE III, WILLIAM MONTOYA, ROBERT ESPINOZA SR., RALPH RAMOS, BOB RICKLEFS, ELIZABETH ATKINSON RYAN, and THOMAS SALOPEK, in their official capacities as Commissioners of the New Mexico State Game Commission; and ALEXANDRA SANDOVAL, in her official capacity as Director of the New Mexico Department of Game and Fish, Defendants.



         THIS MATTER is before the Court on Defendants' Motion to Dismiss Plaintiffs' Complaint and Memorandum in Support Thereof (Doc. 17), filed July 26, 2016. On August 23, 2016, Plaintiffs filed Plaintiffs' Response Opposing Defendants' Motion to Dismiss (Doc. 24), and on September 8, 2016 Defendants filed Reply in Support of Defendants' Motion to Dismiss (Doc. 25). The parties have consented to the undersigned conducting dispositive proceedings in this matter. [Docs. 20 and 21]. Having considered the motion, response, reply, record of the case, and relevant law, the Court concludes that the motion shall be DENIED as to Counts One and Two of the Complaint, and shall be GRANTED as to Count Three of the Complaint.

         I. Background

         The Humane Society of the United States (hereinafter “HSUS”), Animal Protection of New Mexico (hereinafter “APNM” and, collectively with HSUS, “Plaintiff Organizations”), Peter Ossorio, and Jean Ossorio filed this action against Defendants Kienzle, Montoya, Espinoza, Ramos, Ricklefs, Ryan, and Salopek, in their official capacities as Commissioners of the New Mexico State Game Commission (hereinafter, collectively, “the Commission”) and against Defendant Sandoval, in her official capacity as Director of the New Mexico Department of Game and Fish (hereinafter “the Director”). [Doc. 1 at 10-11, ¶¶ 32-41]. Plaintiffs claim that Defendants' decision to permit cougar hunting in areas of the state of New Mexico that are within reintroduction zones for Mexican gray wolves, as well as within critical habitat area for jaguars, [1] constitutes a violation of the Endangered Species Act, 16 U.S.C. §§ 1531-1544 (hereinafter the “ESA”) and federal regulations enacted pursuant thereto.

         The ESA was enacted in 1973, and has been described as “the most comprehensive legislation for the preservation of endangered species ever enacted by any nation.” Tennessee Valley Authority v. Hill, 437 U.S. 153, 180 (1978). The ESA provides three protective categories of wildlife species: “endangered” (16 U.S.C. § 1532(6)), “threatened” (16 U.S.C. § 1532(20)), and “experimental populations, ” designated as either “essential” or “nonessential, ” (16 U.S.C. § 1539(j)).[2]

         A. The Mexican Wolf

         The Mexican wolf “is the smallest, southern-most occurring, rarest, and most genetically distinct subspecies of gray wolf in North America.” See U.S. Fish and Wildlife Service, Southwest Region, “The Mexican Wolf Recovery Program, ” General Description, available at (site last visited January 6, 2017). It is considered to be “one of the nation's rarest mammals.” See U.S. Fish and Wildlife Service, Southwest Region, News Release dated January 12, 2015, available at'service-finalizes-changes-to-mexican-wolf-experimental-population-rule&ID=34787 (site last visited January 6, 2017). The Mexican wolf has been listed as endangered under the ESA since 1976.[3] It is native to the forested and mountainous terrain of the American Southwest and Mexico, where it once numbered in the thousands. See Endangered and Threatened Wildlife and Plants; Establishment of a Nonessential Experimental Population of the Mexican Gray Wolf in Arizona and New Mexico, 63 Fed. Reg. 1752-01, 1752 (Jan. 12, 1998) (to be codified at 50 C.F.R. pt. 17). However, eradication efforts taken, in part, for the benefit of domestic livestock, resulted in near extinction of the subspecies. See 63 Fed. Reg. 1752-01 at 1752-1753. In 1982, the United States and Mexico adopted the Mexican Wolf Recovery Plan, with the goal of ensuring the wolves' survival through a captive breeding program from which a self-sustaining population could be reestablished. Id. at 1753. Five wild Mexican wolves were captured in Mexico to initiate the captive breeding program, and two populations of wolves already in captivity were determined to be pure Mexican wolves, as well. Id. The wild Mexican wolf was considered extinct in the United States by 1998, when the U.S. Fish and Wildlife Service (hereinafter “FWS”) created a rule, pursuant to ESA § 10(j), [4] for the release of an experimental nonessential (ENE) population of Mexican wolves into specifically designated areas of Arizona and New Mexico that were within the historic range of the subspecies. See 63 Fed. Reg. 1752-01 at 1753-1754 and 1763-1772. Because it is designated as “nonessential, ”[5] the Mexican wolf experimental population is not treated by the ESA as “endangered.” See § 10(j)(2)(C)(i). Instead, wolves that have been released into the Mexican Wolf Experimental Population Area (hereinafter “wolf recovery area”) are treated “as a species proposed to be listed under [16 U.S.C.] section 1533.”[6] Id. Thus, designation of an experimental population as “nonessential” allows for greater flexibility in species management. 63 Fed. Reg. 1752-01 at 1752.

         The rule that specifically governs the Mexican wolf population in Arizona and New Mexico (hereinafter “special wolf rule”) is codified at 50 C.F.R. § 17.84(k).[7] The special wolf rule prohibits “take” of any Mexican wolf in the ENE population, except as specifically provided, and incorporates the ESA's definition of “take, ” which is “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct” (16 U.S.C. § 1532(19)), as well. 50 C.F.R. § 17.84(k)(3), (5). Unlike the ESA § 9 take provision, however, the special wolf rule specifically allows for certain “unintentional” takes of Mexican wolves that occur during “an otherwise lawful activity.” 50 C.F.R. § 17.84(k)(7)(viii)(A).[8] In addition, the 2015 amendment to the special wolf rule added provisions that more fully define “due care” under the rule:

Taking a Mexican wolf with a trap, snare, or other type of capture device within occupied Mexican wolf range is prohibited (except as authorized in paragraph (k)(7)(iv) of this section) and will not be considered unintentional take, unless due care was exercised to avoid injury or death to a wolf. With regard to trapping activities, due care includes:
(A) Following the regulations, proclamations, recommendations, guidelines, and/or laws within the State or tribal trust lands where the trapping takes place.
(B) Modifying or using appropriately sized traps, chains, drags, and stakes that provide a reasonable expectation that the wolf will be prevented from either breaking the chain or escaping with the trap on the wolf, or using sufficiently small traps (less than or equal to a Victor #2 trap) that allow a reasonable expectation that the wolf will either immediately pull free from the trap or span the jaw spread when stepping on the trap.

50 C.F.R. § 17.84(k)(5)(iii) (emphasis added).

         In their Complaint, Plaintiffs contend that violations of wildlife regulations promulgated by the Secretary of the Interior, such as the special wolf rule, also constitute violations of § 9(a)(1)(G) of the ESA. See [Doc. 1 at 22, ¶ 99]. Plaintiffs' first claim is that Defendants will be allowing trapping activities in the recovery area of the ENE Mexican wolf population that will result in takes of Mexican wolves without due care, both because it is impossible to modify a trap that will catch a cougar but not catch a wolf, and because Defendants have not imposed any special trap rules for the cougar hunt. Id. at 17-18, ¶¶ 68-70; 19-20, ¶¶ 81-87. Therefore, in Count One of the Complaint, Plaintiffs allege that the Defendants' allowance of cougar hunting within the Mexican wolf recovery area will result in violations of both the special wolf rule and § 9 of the ESA. Id. at 22-23, ¶¶ 98-105. In Count Two, Plaintiffs allege that Defendants' allowance of cougar hunting outside of the Mexican wolf recovery area will directly violate § 9 of the ESA, because, when outside the wolf recovery area, Mexican wolves receive the full range of ESA protections and are not subject to the take exceptions in the special wolf rule. Id. at 23, ¶¶ 106-110 (stating at ¶ 108 that “Mexican wolves located outside the [wolf recovery area] are treated as endangered species”).

         B. The Jaguar

         The jaguar is the largest cat in the Western Hemisphere.[9] The jaguar's historical range within the United States includes portions of New Mexico. See Endangered and Threatened Wildlife and Plants; Final Rule To Extend Endangered Status for the Jaguar in the United States, 62 Fed. Reg. 39147-01, 39147 (July 22, 1997) (to be codified at 50 C.F.R. pt. 17). In 1972, the jaguar was listed in the United States as endangered foreign wildlife in Mexico and Central and South America. Id. at 39148. In the 1970s through the mid-1990s, efforts were made to list the jaguar in the United States. Id. at 39148-49. However, the jaguar was not listed as endangered under the ESA until 1997. Id. at 39156-57. At that time, there was “no known resident population of jaguars in the United States, though they still occur[red] in northern Mexico.” Id. at 39147. There are currently no known breeding populations within the United States, though individual jaguars from Mexico may occasionally cross into Texas, New Mexico, and Arizona.[10]In 2014, the FWS included two small areas in southwest New Mexico as part of a larger, newly designated, jaguar critical habitat.[11] The Court notes that the designation of the jaguar's critical habitat in New Mexico is currently being challenged in New Mexico Farm and Livestock Bureau, et al. v. United States Dept. of the Interior, et al., No. CIV-15-428 KG/CEG.

         Count Three of Plaintiffs' Complaint alleges that Defendants “will cause the unlawful take of jaguars to be committed by authorizing cougar trapping within federally designated jaguar critical habitat.” [Doc. 1 at 23-24, ¶114]. Plaintiffs further allege that “substantial portions of designated jaguar critical habitat are held privately or by the New Mexico State Land Trust, and thus will be open to cougar trapping using leg-hold traps, ” which has been authorized by Defendants (id. at 21, ¶93), and that “leg-hold traps of the size and type used for trapping cougars are highly likely to also trap jaguars because of similarities in size, weight, and physiology between the species” (id. ¶95).

         II. Analysis

         Defendants' motion to dismiss seeks dismissal of all counts of Plaintiffs' Complaint on the ground that Plaintiffs lack standing and, therefore, this Court is without subject-matter jurisdiction over the action. See [Doc. 17 at 2 and 9-18]. Additionally, Defendants assert that the doctrine of legislative immunity bars Plaintiffs' claims against the individual members of the New Mexico State Game Commission. Id. at 2 and 18-21. Finally, Defendants contend that Plaintiffs fail to state a claim as a matter of law as to any of their claims and, therefore, that their Complaint should be dismissed pursuant to Fed.R.Civ.P. 12(b)(1) and (6). Id. at 2. Specifically, Defendants contend that Plaintiffs fail to state a claim as to Count One because: (1) in the wolf recovery area, “the ‘due care' standard applies to the act of trapping, and not to the regulation of trapping;” and (2) because “a trapper can exercise due care when setting traps for cougar, and the Complaint does not contain factual allegations to the contrary.” Id. at 2; see also Id. at 21-24. With respect to Count Two, Defendants assert that Plaintiffs have not alleged facts that support their claim that trapping outside of the wolf recovery area “has resulted or will imminently result in the illegal take of Mexican wolves.” Id. at 2; see also Id. at 24-25. With respect to Count Three, Defendants argue that Plaintiffs' claims regarding illegal take of jaguars are “only conclusory allegations unsupported by the requisite factual allegations.” Id. at 2; see also Id. at 26.

         In response, Plaintiffs contend that the allegations of their Complaint sufficiently establish all three elements of Article III standing, which are injury-in-fact, causation, and redressability (see Doc. 24 at 6), and that they also adequately state facts in support of each of their three claims for relief (id. at 15). Plaintiffs deny that the individual members of the New Mexico State Game Commission are protected by legislative immunity, and contend that those parties' challenged actions “are in the nature of an administrative, rather than legislative, activity.” Id. at 25-26.

         In reply, Defendants argue that Plaintiffs lack standing to bring their Count One claim because, in the wolf recovery area, unintentional harm that occurs due to trapping where “due care” is exercised does not qualify as a “take.” [Doc. 25 at 4.]. Defendants further contend that Plaintiffs' Count One claims are “speculative” and “identical to the baseless allegation advanced by plaintiffs in WildEarth Guardians v. Lane, 2012 WL 6019306 (D. N.M. Dec. 4, 2012) (unpublished) and rejected by the court due to a paucity of evidence.” Id. at 6. Defendants assert that Plaintiffs lack standing to bring their Count Two claim because they fail to allege facts sufficient to establish actual or imminent injury. Id. at 8 (stating “Plaintiffs do not allege that any trapping or snaring of Mexican wolves has ever occurred outside the [wolf recovery area].”). Defendants argue that Plaintiffs lack standing as to Count Three because standing under the ESA requires injury-in-fact that is connected to the species at issue, and Plaintiffs fail to make such allegations with respect to jaguars. Id. at 9-11.[12] Defendants maintain that Plaintiffs' claims against members of the New Mexico State Game Commission named as Defendants in their individual capacities are barred by the doctrine of legislative immunity, noting that the act challenged by Plaintiffs is the promulgation of the Cougar Rule, which is a legislative act. Id. at 11-12.

         “[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). “When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Thus,

[u]nder Federal Rule of Civil Procedure 8(a)(2), a Complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). This obligation “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). To survive dismissal, the factual allegations must be “plausible” and “must be enough to raise a right to relief above the speculative level.” Id. at 555. See also Edwards v. Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010). This requires “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).

Florida Panthers v. Collier County, Florida, 2016 WL 1394328, at *13 (M.D. Fla. Apr. 8, 2016) (unpublished).

         A. Plaintiffs' Standing

         Defendants argue that Plaintiffs' have failed “to allege facts substantiating a current or imminent injury, and that Defendants' actions are the cause of Plaintiffs' claimed injury, ” and that Plaintiffs have, therefore, failed to establish their standing to make their claims. [Doc. 17 at 13]. Specifically, with respect to Count One of the Complaint, Defendants assert that Plaintiffs “cannot establish that Defendants' enactment of the Cougar Rule will cause the illegal take of Mexican wolves within the [wolf recovery area].” Id. at 14. With respect to Count Two, Defendants argue that Plaintiffs' allegation “that wolves have traveled outside the [wolf recovery area] does not establish that harm to any such wolves is imminent” and, in any event, “Plaintiffs do not allege that, if the Cougar Rule is invalidated, that action by this Court would redress their injuries.” Id. at 15. With respect to Count Three, Defendants assert that the Ossorios have not alleged “any facts whatsoever relating to jaguars, ” and thereby fail to establish all three requirements of standing as to the jaguar. Id. at 16. Finally, Defendants assert both that the Plaintiff Organizations “generally lack associational and organizational standing, ” and also fail to establish the three elements of standing with respect to jaguars. Id. at 16-17.

         Plaintiffs respond that they met their burden “[a]t the motion to dismiss stage . . . by making ‘general factual allegations of injury resulting from the defendant's conduct, '” and that “‘on a motion to dismiss [the Court] presume[s] that general allegations embrace those specific facts that are necessary to support the claim.'” [Doc. 24 at 7] (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). Plaintiffs assert that the Ossorios have standing to assert all three claims because their “aesthetic and recreational harms are ‘imminent' as pled” (id. at 9), and because they are not required to allege “an injury-in-fact that is connected to the species at issue” (id. at 11) (citing Bennett v. Spear, 520 U.S. 154, 163-64 (1997)). Plaintiffs also assert that the Plaintiff Organizations have both standing to sue on behalf of their members (id. at 12), as well as “in their organizational capacity, ” because they have been forced to “devote significant resources” to opposition of Defendants' illegal activity (id. at 15).

         In reply, Defendants contend that, with regard to their first claim, Plaintiffs mistakenly conflate harm to wolves with unlawful “take” of wolves, and, thus, ignore that trapping of a wolf in the wolf recovery area can be lawful under the ESA and § 10(j). See [Doc. 25 at 2 and 4-8]. Defendants further contend that Plaintiffs lack standing to pursue their second and third claims because they cannot allege the requisite injury, causation, and redressability as to the wolves outside of the wolf recovery area and as to jaguars. See Id. at 3 and 8-11.

         Article III of the United States Constitution limits judicial power to “Cases” and “Controversies, ” which has been interpreted to require that Plaintiffs have a sufficient personal stake in the outcome of their lawsuits to warrant invocation of federal court jurisdiction. See Summers v. Earth Island Institute, 555 U.S. 488, 493 (2009). A plaintiff pursuing an action in federal court bears the burden of establishing the elements of standing. Lujan, 504 U.S. at 560. Those elements have been described by the Tenth Circuit Court of Appeals as “injury in fact, causation, and redressability.” Cressman v. Thompson, 719 F.3d 1139, 1144 (10th Cir. 2013) (citation and internal quotation marks omitted).

         An injury in fact is “an invasion of a legally protected interest” that is concrete, particularized, either actual or imminent, and not conjectural or hypothetical. Lujan, 504 U.S. at 560. A “particularized” injury “must affect the plaintiff in a personal and individual way.” Id., n.1. With respect to the claims asserted in this case, it has long been acknowledged that “the desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose[s] of standing.” Id. at 562-63. See also, Southern Utah Wilderness Alliance v. Office of Surface Mining Reclamation and Enforcement, 620 F.3d 1227, 1233 (10th Cir. 2010). “But the ‘injury in fact' test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured.” Sierra Club v. Morton, 405 U.S. 727, 734-35 (1972). “[E]nvironmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons for whom the aesthetic and recreational values of the area will be lessened by the challenged activity.” Friends of the Earth, Inc. v. Laidlaw Environmental Services,528 U.S. 167, 183 (2000) (citations and internal quotation marks omitted). With respect to wildlife, “[i]t is clear that the person who observes or works with a particular animal threatened by a federal decision is facing perceptible harm, since the very subject of his interest will no longer exist.” Lujan, 504 U.S. at 566. However, Lujan specifically rejected an “animal nexus” claim to standing, which it described as “anyone who observes or works with an endangered species, anywhere in the world, is appreciably harmed by a single project affecting some portion of that species with which he has no more specific connection, ” as crossing the line “into pure speculation and fantasy.” Id. at 567 ...

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