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New Mexico Farm & Livestock Bureau v. United States Department of Interior

United States District Court, D. New Mexico

October 25, 2017

NEW MEXICO FARM & LIVESTOCK BUREAU; NEW MEXICO CATTLE GROWERS' ASSOCIATION; and NEW MEXICO FEDERAL LANDS COUNCIL, Plaintiffs,
v.
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

         This 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.

         I. Procedural History

         On 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.[1] (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).

         II. Factual Background

         The 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.

         The Service listed the jaguar as endangered under the ESA in 1972.[2] 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.

         On 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.

         Unit 5 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.

         III. Legal Standard: Review of a Final Administrative Decision

         Plaintiffs 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)[3]; and the Administrative Procedure Act (APA), 5 U.S.C. § 551, et seq.

         A. Administrative Procedure Act

         Under 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).

         B. The Endangered Species Act

         The ESA 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 imposes ...


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