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Humane Society of United States v. Kienzle

United States District Court, D. New Mexico

November 2, 2017

HUMANE SOCIETY OF THE UNITED STATES, ANIMAL PROTECTION OF NEW MEXICO, JEAN OSSORIO, and PETER OSSORIO, Plaintiffs,
v.
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 DENYING JUDGMENT ON THE PLEADINGS

         THIS MATTER comes before the Court upon the State Defendants' Motion for Judgment on the Pleadings, filed March 7, 2017 (Doc. 33), following a hearing and oral argument. Having reviewed the parties' briefs and the applicable law, the Court finds that State Defendants' motion is not well-taken and, therefore, is denied.

         BACKGROUND

         Plaintiffs allege that State Defendants have adopted regulations that authorize trapping of cougars and that by so doing, will cause “take” of Mexican woes and jaguars in violation of the Endangered Species Act, 16 U.S.C. §§1531-1544 (“ESA”), in particular, §9 and §10(j), and its relevant federal regulations. Plaintiffs seek a Court order enjoining those regulations.[1] State Defendants argue that while the new regulations authorize trapping of cougars by state-licensed trappers (the “Cougar Rule”), they are immune from suit because state law clearly prohibits take of Mexican wolves. See N.M.S.A. §17-2-41(C)(1) (prohibiting take of wildlife determined by the state to be endangered; N.M.Admin. Code§19.33.6.8(a)(1)(f) (identifying the gray wolf as endangered.). State Defendants also claim they are entitled to judgment on the pleadings under Fed.R.Civ.P. 12(c) because they cannot be held liable for harm to Mexican wolves at the hands of a third party.

         This year, for the first time since 1971, the Department of Game and Fish and the New Mexico State Game Commission, i.e. State Defendants, authorized recreational trapping and snaring for cougars on state trust land and private deeded lands throughout the state. The stated intent of this newly-authorized “Cougar Rule” is to increase opportunities for recreational trapping and killing of cougars. Much of the land open to cougar trapping overlaps with the Mexican Wolf Experimental Population Area (“MWEPA”), and much of the land classified by State Defendants as prime cougar habitat within New Mexico also lies within key Mexican wolf habitat within the MWEPA. Plaintiffs allege the adoption of the Cougar Rule threatens Mexican wolves and that it will cause cougar trappers to trap and snare Mexican wolves without due care because it is impossible to modify cougar traps to avoid harming wolves.

         The Complaint asserts three claims, with Counts One and Two alleging claims for relief for illegal take of Mexican wolves and Count III for illegal take of jaguar. Count III has been dismissed by the Court on standing grounds, Doc. 28 at 28-29, so now the only remaining claims for relief are Counts I and II that allege take of Mexican wolves.

         DISCUSSION

         Rule 12(c) of the Federal Rules of Civil Procedure provides that “[a]fter the pleadings are closed” but early enough not to delay trial, a party may move for judgment on the pleadings. A motion under Rule 12(c) is generally treated in the same manner as a Rule 12(b)(6) motion to dismiss. Mock v. T.G.&Y Stores Co., 971 F.2d 522, 528 (10th Cir. 1992). In reviewing a motion to dismiss, the Court accepts all well-pleaded factual allegations in the complaint as true and then determines whether the complaint plausibly states a legal claim for relief. Gallagher v. Shelton, 587 F.3d 1063, 1068 (10th Cir. 2009).

         I. Threshold Arguments

         The Court rejects Plaintiffs' threshold arguments. They are worth mentioning for the record, but not worth much discussion.

         First, Plaintiffs claim that State Defendants deny that the wolf is an endangered species. This is simply a mischaracterization of State Defendants' representations in their Answer which is based on a literal reading of the complaint and the relevant New Mexico administrative code. See Doc. 42 at 3, n.1.

         Second, Plaintiffs contend that the state's wildlife conservation act does not explicitly include a prohibiting on “trapping, ” since state statutes and regulations relating to take of endangered species do not expressly include the term “take.” Doc. 38 at 8 n.2. However, as State Defendants note, Plaintiffs' interpretation of the term “take” as contrary to the plain meaning of that term, which is clearly set forth in the state statute, and expressly includes harassing, hunting, capturing or killing any wildlife-or an attempt to do so. See N.M.S.A. §17-2-38(L).

         Third, Plaintiffs contend that State Defendants continue to take the position that trappers will not be held criminally liable if a Mexican gray wolf is accidentally captured. Doc. 38 at 4. State Defendants explain that this informal policy statement constitutes a reasonable exercise of prosecutorial discretion and applies only where the trapping is accidental, that is, non-negligent or consistent with due care. The Court finds this to be a reasonable position, although Plaintiffs would appear to prefer adopting a strict liability theory against trappers which would be legally untenable. These collateral arguments are all without merit and have no relevance to the issue here, which is whether the Cougar Rule violates the ESA and whether State Defendants should be held liable for those violations if they are found to exist.

         Fourth, Plaintiffs argue that the Court has already considered State Defendants' arguments in their earlier motion to dismiss when the Court found that “Plaintiffs have adequately pled that imminent harm to the wolves . . . is “fairly traceable” to Defendants' actions.” Doc. 28 at 20.[2] This argument can be rejected as well. The Court has considered the injury-in-fact issue within the context of standing, but it has not considered the harm relative to the proximate causation question, which follows a different standard.

         II. Causation ...


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