United States District Court, D. New Mexico
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 DENYING JUDGMENT ON THE
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.
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. 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§184.108.40.206(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.
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.
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.
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).
Court rejects Plaintiffs' threshold arguments. They are
worth mentioning for the record, but not worth much
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.
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).
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.
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. 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