United States District Court, D. New Mexico
THE HUMANE SOCIETY OF THE UNITED STATES, ANIMAL PROTECTION OF NEW MEXICO, JEAN OSSORIO, and PETER OSSORIO, Plaintiffs,
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.
MEMORANDUM OPINION AND ORDER
LOURDES A. MARTÍNEZ, UNITED STATES MAGISTRATE JUDGE
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
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,  constitutes a
violation of the Endangered Species Act, 16 U.S.C.
§§ 1531-1544 (hereinafter the “ESA”)
and federal regulations enacted pursuant thereto.
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. §
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
(site last visited January 6, 2017). The Mexican wolf has
been listed as endangered under the ESA since
1976. 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),  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,
” 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.” Id. Thus, designation of
an experimental population as “nonessential”
allows for greater flexibility in species management. 63 Fed.
Reg. 1752-01 at 1752.
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). 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). 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
(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).
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”).
jaguar is the largest cat in the Western
Hemisphere. 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.In 2014, the FWS included
two small areas in southwest New Mexico as part of a larger,
newly designated, jaguar critical habitat. 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
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).
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.
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.
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. 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.
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,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
Florida Panthers v. Collier County, Florida, 2016 WL
1394328, at *13 (M.D. Fla. Apr. 8, 2016) (unpublished).
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.
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).
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
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).
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 ...