United States District Court, D. New Mexico
NEW MEXICO FARM & LIVESTOCK BUREAU; NEW MEXICO CATTLE GROWERS' ASSOCIATION; and NEW MEXICO FEDERAL LANDS COUNCIL, Plaintiffs,
UNITED STATES DEPARTMENT OF THE INTERIOR; SALLY JEWELL, in her official capacity as Secretary of the United States Department of the Interior; UNITED STATES FISH AND WILDLIFE SERVICE; and DANIEL M. ASHE, in his official capacity as Director of the United States Fish and Wildlife Service, Defendants, CENTER FOR BIOLOGICAL DIVERSITY, INC. and DEFENDERS OF WILDLIFE, INC., Defendant - Intervenors.
MEMORANDUM OPINION AND ORDER
matter is before the Court on Plaintiffs New Mexico Farm
& Livestock Bureau, New Mexico Cattle Growers'
Association, and New Mexico Federal Lands Council's
(Plaintiffs) petition for judicial review of the United
States Fish and Wildlife Service's (Service) final agency
action designating critical habitat for the jaguar in
portions of Arizona and New Mexico. See (Docs. 1,
69). Having reviewed the briefing and being fully advised,
the Court denies Plaintiffs' petition for injunctive
relief and affirms the Service's final agency action.
March 5, 2014, the Service published its final agency rule
designating approximately 764, 207 acres of land in New
Mexico and Arizona as critical habitat for the jaguar under
the Endangered Species Act (ESA). 79 Fed. Red. 12, 571.
Plaintiffs initiated suit in this Court on May 20, 2015, by
filing a petition seeking declaratory judgment and injunctive
relief. (Doc. 1). On October 31, 2016, Plaintiffs filed their
opening brief in support of their petition. (Doc. 69).
Defendants and Defendant-Intervenors each filed their own
response on December 12 and December 19, 2016, respectively.
(Docs. 70, 71). Plaintiffs filed their reply on January 13,
2017, and submitted a notice of completed briefing on
February 3, 2017. (Docs. 73, 75).
jaguar (Panthera oncus) is a large, territorial
predatory cat with a camouflaged appearance of either pale
yellow, tan, or reddish yellow with prominent dark rosettes
or blotches. See R003476; 79 Fed. Reg. at 12, 581.
The core habitat, which most jaguar occupy, consists of the
tropical rain forests of Central and South America.
See Administrative Record (AR) F000373. However, at
the northernmost portion of the jaguar's range, a small
population has adapted to occupy more arid forest and open
grass ecosystems. 79 Fed. Reg. at 12, 573. This includes a
breeding population of resident jaguars in Sonora, Mexico as
well as individual jaguars in the southwestern United States.
The ecosystems in the United States are considered suitable
only as a secondary habitat, which has little to no evidence
of reproduction but which may provide important dispersal
habitat for the species. AR R003492-93.
Service listed the jaguar as endangered under the ESA in
1972. 37 Fed. Reg. 6, 476 (Mar. 30, 1972); AR
F000001. The Service recognized in 1980 that it was
“unlikely that a jaguar will wander into the United
States in the near future” and “even more
unlikely that a population could become established in the
American southwest, ” due to the fact that a jaguar had
not been seen in New Mexico since 1937. See 45 Fed.
Reg. 49, 845; 59 Fed. Reg. 35, 674, 35, 676 (July 13, 1994);
AR F000004, AR F000009. However, between 1996 and 2006, two
jaguars were sighted in portions of Hidalgo County, New
Mexico. AR F000379-80; 79 Fed. Reg. at 12, 594, 12, 580-81.
August 20, 2012, the Service solicited public comments on a
proposed rule to designate approximately 838, 232 acres of
land as jaguar critical habitat in New Mexico and Arizona. 77
Fed. Reg. 50, 214. The Service published its Final Rule on
March 5, 2014, designating approximately 764, 207 acres of
land in New Mexico and Arizona as critical habitat for the
jaguar. 79 Fed. Reg. 12, 571. Of the six designated units,
Units 5 and 6, the subjects of this lawsuit, cover areas
within the state of New Mexico and part of Arizona.
stretches across 102, 724 acres in Hidalgo County, New
Mexico, and Cochise County, Arizona, including portions of
the Coronado National Forest, and 13, 138 acres of privately
owned land. 79 Fed. Reg. at 12, 592. One jaguar track was
photographed within this Unit near the New Mexico-Arizona
state border in 1995, and a jaguar was sighted in this Unit
in 1996. Id.; 79 Fed. Reg. at 12, 580, Table 1
(entries for 1995 and 1996). Unit 6 includes 7, 714 acres of
entirely private property in Hidalgo County, New Mexico. 79
Fed. Reg. at 12, 594, AR F000394. One jaguar was photographed
in this Unit in 2006. 79 Fed. Reg. at 12, 580, Table 1 (entry
for 2006), AR F000380.
Legal Standard: Review of a Final Administrative Decision
seek review of the Service's final agency decision,
asserting that the Service exceeded its authority in
designating thousands of acres of arid land in New Mexico as
critical habitat for the jaguar. Accordingly, Plaintiffs
request declaratory judgment and injunctive relief against
Defendants for violating the ESA, 16 U.S.C. § 1531,
et seq.; 50 C.F.R. § 424.12(e); and the
Administrative Procedure Act (APA), 5 U.S.C. § 551,
Administrative Procedure Act
the APA, a reviewing district court must set aside an agency
action that (a) fails to meet statutory, procedural, or
constitutional requirements, or (b) is arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with
law. 5 U.S.C. § 706(2)(A)-(D). The Court possesses
jurisdiction over an “[a]gency action made reviewable
by statute and final agency action for which there is no
other adequate remedy in a court are subject to judicial
review.” 5 U.S.C. § 704. This review functions as
an appeal and should be based on the administrative record
before the agency at the time the agency made its decision. 5
U.S.C. § 706(2)(A); see also Olenhouse v. Commodity
Credit Corp., 42 F.3d 1560, 1579-80 (10th Cir. 1994).
(determining that reviewing court may not rely on evidence
outside the record under APA). An agency's decision is
entitled to a “presumption of validity, ” and
will be upheld if the agency considered the relevant factors
and provided a reasoned basis for its decision.
Citizens' Comm. to Save Our Canyons v. Krueger,
513 F.3d 1169, 1176 (10th Cir. 2008); Colo. Envtl. Coal.
v. Dombeck, 185 F.3d 1162, 1167 (10th Cir. 1999).
Endangered Species Act
was enacted “to provide a means whereby the ecosystems
upon which endangered species and threatened species depend
may be conserved, [and] to provide a program for the
conservation” of such species. 16 U.S.C. §
1531(b); see N.M. Cattle Growers Ass'n v. U.S. Fish
and Wildlife Serv., 248 F.3d 1277, 1282 (10th Cir. 2001)
(same). The first step in protecting a species is for the
Secretary of the Interior (Secretary), who has responsibility
to list a species in need of protection as either
“threatened” or “endangered.” 16
U.S.C. § 1533(a). The ESA also requires the Secretary to
designate critical habitat for all listed species, to the
extent prudent and determinable, as a means of conserving the
species. 16 U.S.C. § 1533(a)(3)(A). The designation must
be based on “the best scientific data available”
and may only be made after the Secretary considers and weighs
the cost of all relevant impacts, including economic impacts.
16 U.S.C. 1533(b)(2); 50 C.F.R. § 424.12(a). Under this
standard, the Secretary may designate both occupied and
unoccupied territories as critical habitat, but the standard