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; THOMAS SALOPEK; and ALEXANDRA SANDOVAL; Defendants.
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFFS'
MOTION FOR SUMMARY JUDGMENT
MATTER comes before the Court upon the following motions
following oral argument:
Defendants' Motion for Summary Judgment, filed October
27, 2017 (Doc. 79); and
Plaintiffs' Motion for Summary Judgment, filed December
8, 2017 (Doc. 88).
reviewed and considered the parties' cross-motions and
the applicable law, the Court is denying Plaintiffs'
motion and granting Defendants' motion.
relevant entities in this lawsuit are:
Plaintiffs:Humane Society of the United States
Animal Protection of New Mexico Jean Ossorio Peter Ossorio
Defendants:Individual Commissioners of the New
Mexico State Game Commission;
New Mexico State Game
New Mexico Department Of Game and Fish
United States Fish And Wildlife
in this case allege that the Defendants, who are the
Commissioners of the New Mexico State Game Commission, have
adopted regulations that authorize trapping of cougars and
that by so doing, will cause “take” of Mexican
gray wolves in violation of the Endangered Species Act
(“ESA”), 16 U.S.C. §§1531-1544
(“ESA”), in particular, §9 and §10(j),
and its relevant federal regulations. Plaintiffs seek a Court
order enjoining the state trapping regulations.
Mexico Department of Game and Fish (“Department)
reviews and proposes updates to hunting and trapping
regulations, including those that apply to trapping of
cougars. The New Mexico State Game Commission
(“Commission”) has ultimate authority to adopt
such hunting and trapping regulations. N.M.A.C. §
220.127.116.11. In 2016, Defendants authorized recreational
trapping and snaring for cougars on state trust land and
private deeded lands throughout the state, making New Mexico
the only state that authorizes the recreational trapping and
snaring of cougars. (Hereinafter, the rules and regulations
relating to the trapping and snaring of cougars will be
referred to as the “Cougar Rule”). 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.
Plaintiffs contend that because the state has licensed the
trapping activity, it is liable for the conduct of the
anticipate that this case can be resolved at the summary
judgment stage, based on their cross-motions. Doc. 108,
¶2. Both sides have presented voluminous amounts of
material as evidence, including numerous Declarations by
individuals who have not been designated as experts,
according to the parties' own representations. Doc. 108,
¶6. The Court considers all of these statements and
weighs them as opinion testimony based solely on the personal
experience of these individuals. See Fed.R.Evid.
The Endangered Species Act
enacted the ESA in 1973 to “provide for the
conservation, protection, restoration, and propagation of
species of fish, wildlife, and plants facing
extinction.” Wyo. Farm Bureau Fed'n v.
Babbitt, 199 F.3d 1224, 1231 (10th Cir. 2000)
(“Wyo. Farm Bureau”) (quoting S. Rep.
No. 93-307, at 1 (1973), reprinted in 1982 U.S.C.C.A.N.
2989). The ESA provides various levels of protection
depending upon how a species is classified. The three ESA
classifications are: (1) endangered, (2) threatened, and (3)
experimental populations. See 16 U.S.C. §§
1538(a), 1539(j). “Endangered” species are
entitled to the highest level of protection. See Animal
Welfare Inst. v. Martin, 588 F.Supp.2d 70, 97-98 (D. Me.
2008) (internal citation omitted).
species is listed as endangered, ESA § 9(a)(1)(B)
prohibits all take of the species. 16 U.S.C. §
1538(a)(1)(B). The ESA defines “take” as
“to harass, harm, pursue, hunt, shoot, wound, kill,
trap, capture, or collect, or attempt to engage in any such
conduct.” Id. § 1532(19The ESA does not
expressly prohibit take of threatened species although it
allows the United States Fish and Wildlife Service
(“FWS”) to promulgate protective regulations for
threatened species. Id. 16 U.S.C. § 1533(d).
Plaintiffs emphasize the broad scope of activities included
in the ESA's definition of “take, ” arguing
that even if no wolf has been caught in traps set for
cougars, Defendants' conduct still constitutes a take
because it is an “attempt” at a
“take.” However, an “attempt to take”
implies an intent that is directed at wolves and would not
include those instances where wolves may be caught in traps
that were meant for cougars. There is no evidence in this
case of any specific intent to trap Mexican wolves, and so
the Court finds the use of “attempt”
has promulgated a rule applying the ESA § 9 take
prohibition to all threatened species, subject to certain
exceptions. 50 C.F.R. §§ 17.31, 17.40-17.48.
Experimental populations authorized for release under ESA
section 10(j) are “treated as if . . . listed as a
threatened species for purposes of establishing protective
regulations under section 4(d). . . .” 50 C.F.R. §
17.82; see also 16 U.S.C. § 1539(j).
designation of an animal is pertinent to any analysis where
the Department is being challenged on its regulations and
policies relative to the ESA. Special rules have been
promulgated relating to experimental populations, such as the
Mexican wolf population, which provide an exception to
§9's take prohibition under the ESA. One of these
rules is 50 CFR §17.84(k) which addresses
“unavoidable and unintentional take.” The
regulation states that a violation of the ESA does not occur
when take is incidental to a legal activity and is not a
result of negligent conduct lacking reasonable due care, and
when due care was exercised to avoid the taking. In a fairly
recent unpublished District of New Mexico case, the court
contrasted the taking of an animal under the special rules
applied to experimental populations, with taking of an animal
on the endangered species list:
Under the special rules applied to experimental populations,
the taking of a wolf with a trap or other type of capture
device within occupied wolf range would not be considered
unavoidable, accidental, or unintentional, but no violation
occurs if “due care was exercised to avoid taking a
wolf.” Id. Thus, a trapper engaged in lawful
trapping of furbearer animals, who was careful and sought to
avoid capturing a wolf, would not violate the law. In
contrast, under the § 9 prohibition on taking, it
matters not if a trapper exercised due care to avoid taking a
listed animal. Any taking of a listed animal under § 9
is a violation of law, and indeed, ESA § 9 does not
contemplate any type of trapping of a threatened or
endangered species that is not an experimental population.
WildEarth Guardians v. Lane, No. CIV 12-118 LFG/KBM,
2012 WL 6019306, at *21 (D.N.M. Dec. 3, 2012), as
amended (Dec. 4, 2012). Thus, the designation of the
Mexican gray wolf is not altogether irrelevant when
considering measures taken by the Department in trying to
minimize risk of injury to wolves when enacting the Cougar
promulgated a rule relating to the experimental population of
the Mexican gray wolf in 1998, designating the population as
“nonessential” under the ESA. 50 C.F.R. §
17.84(k). The rule was amended in 2015 to modify the
geographic boundaries in which Mexican gray wolves are
managed, to modify certain other provisions to facilitate
management activities, and to revise the “due
care” criteria to “allow for trapping to occur in
a way that reduces harm to Mexican wolves.” Revision to
the Regulations for the Nonessential Experimental Population
of the Mexican gray wolf, 80 Fed. Reg. 2512, 2534, 2548 (Jan.
16, 2015) (“10(j) Rule”).
The Cougar Rule
the Cougar Rule, hunters who possess both a valid cougar
license and a valid furbearer license may use traps or foot
snares to harvest cougars on state trust land, or private
deeded land with written permission from the landowner. N.M.
Admin. Code § 18.104.22.168(O). Hunters must comply with
the “regulations on methods, trap specification, trap
inspection, and cougar removal as defined in 22.214.171.124 NMAC
(Manner and Method of Taking Furbearers), and 126.96.36.199 NMAC
(Trap Inspection and Furbearer Removal”). Id.
These provisions include limitations on the size and type of
traps. See, e.g., N.M. Admin. Code §
188.8.131.52.B(2). Further, it is unlawful to hunt cougars
without completing a mandatory cougar identification course.
N.M. Admin. Code § 184.108.40.206(G). The extent to which
cougar trapping in New Mexico is authorized is limited in a
number of other respects. For example, trapping is only
permitted on certain lands, N.M. Admin. Code §
220.127.116.11(O)-(P), and where trapping is authorized, the
season is limited from November 1 through March 31, or until
the total mortality limit, or female sub-limit, is met,
whichever comes first. N.M. Admin. Code §
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 was
dismissed by the Court on standing grounds, Doc. 28 at 28-29,
and so the only remaining claims for relief are Counts I and
II which allege take of Mexican wolves. Plaintiffs seek
declaratory and injunctive relief to bar Defendants from
implementing those parts of the Cougar Rule that authorize
cougar trapping or snaring, and specifically preventing the
Department from authorizing the opening of a cougar trapping
and snaring season. The Court recently denied Defendants'
motion to dismiss under Fed.R.Civ.P.12(c) and found that
Plaintiffs had sufficiently alleged that the regulations that
authorize cougar trapping by state-licensed trappers increase
the risk of harm to Mexican wolves. Doc. 86. There is now a
more complete record upon which the Court can resolve the
issues in this case.
Summary Judgment Standard
parties have moved for summary judgment. A motion for summary
judgment is appropriate when there is no genuine issue of
material fact, and the moving party is entitled to judgment
as a matter of law. Fed.R.Civ.P. 56(a); see also Celotex
Corp. v. Catrett, 477 U.S. 317, 330 (1986). “[T]he
mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be
no genuine issue of material fact.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). As the
Tenth Circuit has explained, “mere assertions and
conjecture are not enough to survive summary judgment.”
York v. AT&T, 95 F.3d 948, 955 (10th Cir. 1996).
To avoid summary judgment, a party “must produce
specific facts showing that there remains a genuine issue for
trial and evidence significantly probative as to any
[material] fact claimed to be disputed.” Branson v.
Price River Coal Co., 853 F.2d 768, 771-72 (10th Cir.
1988) (quotation marks and citations omitted).
fact that both parties have moved for summary judgment does
not permit the entry of a summary judgment if disputes remain
as to material facts. See Buell Cabinet Co. v.
Sudduth, 608 F.2d 431, 433 (10th Cir.1979).
Cross-motions for summary judgments, however, do authorize a
court to assume that there is no evidence which needs to be
considered other than that which has been filed by the
parties. See Harrison W. Corp. v. Gulf Oil Co., 662
F.2d 690, 692 (10th Cir.1981) (citations omitted).
Mexican Gray Wolf Experimental Population Area
(“MWEPA”) includes the area south of Interstate
40 in New Mexico and establishes special protections for
Mexican wolves in that area. 80 Fed. Reg. 2, 512 (Jan. 16,
2015); 50 C.F.R. § 17.84(k). Within the MWEPA, federal
law prohibits “[t]aking a Mexican gray wolf with a
trap, snare, or other type of capture device . . . unless due
care was exercised to avoid injury or death to a wolf.”
Id. §17.84(k)(5)(iii) (emphases added). Mexican
wolves outside the MWEPA are treated as endangered
species, meaning that the take of a wolf through trapping or
snaring is per se unlawful. Id. §§ 17.11,
to FWS, Mexican wolves currently occupy an area identified in
the “Mexican gray wolf Occupied Range Map, ”
which is updated biweekly based on the location of
radio-collared Mexican wolves. In other words, much of the
land open to cougar trapping overlaps with the MWEPA, and
much of the land classified by the Defendants as prime cougar
habitat within New Mexico also lies in key Mexican gray wolf
habitat all within the MWEPA. See Arrivo Decl. (Doc.
97) & att. Exs. B & P (under seal) (maps showing
occupied Mexican wolf range).
Cougar Rule allows trapping and snaring within the MWEPA and
the known current range of Mexican wolves in New Mexico.
Individuals with a Cougar License and Trapping Permit may set
an unlimited number of traps and snares for cougars.
Department's “Cougar Density Model” from 2010
represents Defendants' official estimate of the location
and abundance of cougars in the state. Arrivo Dec, Ex. C
(Department Cougar Zone Map and Habitat Model). The Cougar Rule
relied on this model to develop recreational hunting and
trapping harvest limits or “quotas, ” such that
areas of higher estimated density correspond to higher
quotas. Arrivo Dec. (Doc. 97), Ex. D (Department Cougar
Population and Harvest Management Matrix).
Cougar Rule has now been in effect for two full trapping
seasons, from November 1, 2016 to March 31, 2017. Goldstein
Decl., (Doc. 79-1), ¶ 4; Goldstein Decl. (Doc. 111),
Reply, ¶¶4 & 5. There are records of Mexican
wolves being caught in traps, but there is not a single
record evidencing that a Mexican gray wolf has ever been
caught in a trap set for cougars. Ngo Decl. & Exs. A-R;
Pachelli Decl. (Docs. 79-3 and 79-22); Goldstein Decl. (Doc.
111), Reply, ¶¶4 & 5). Plaintiffs admit that
they are “unaware of any instance” in which a
Mexican gray wolf has been caught in “a trap or snare
set for cougars” either inside or outside the MWEPA
after the Cougar Rule went into effect. Plaintiffs minimize
this statement by noting that in the 2016-17 cougar trapping
season, only four cougar trappings were reported. Ngo
Declaration (Doc. 79-3). Exs. A-D. In a number of instances,
the records of Mexican wolves being caught in traps specify
the species that was targeted by the trapper, and in every
instance where records specify the species that was targeted
by a trapper who caught a Mexican gray wolf, the species
targeted was not a cougar. Ngo Declaration (Doc. 79-3) Exs.
F-K; see also Pachelli Declaration, ¶ 6.
Department has supplied staff time and contracted with
persons to trap cougars in order to protect and manage
bighorn sheep (Ovis canadensis) populations. This program is
referred to as the “Bighorn Sheep Restoration
Program.” Pursuant to direction from the Department,
contractors hired for the course of the program have set
traps for cougars on more than 60, 000 trap nights (defined
as the number of traps set multiplied by the number of nights
during which they were set) for 420, 000 hours over the past
15 years, from July 2002 to June 2017. These individuals have
trapped 156 cougars, but they have never caught a Mexican
gray wolf. Declaration of Elise Goldstein (“Goldstein
Declaration”), ¶ 5.
Department has applied for and received federal grants to
perform big game surveys, inventories, and management,
including the Department's cougar trapping program.
Pursuant to section 7 of the ESA, the FWS has evaluated
whether the cougar trapping program will adversely affect
Mexican wolves. It has concluded that the Department's
cougar trapping program is not likely to adversely affect
Mexican wolves. Deft's Fact 3; Goldstein Declaration
(Doc. 79-1), ¶ 6; Ex. A.; see also WS and
National Marine Fisheries Service, Consultation Handbook
(1998) at 3-12, Doc. 79-2 at 5; (explaining that an action
that “is not likely to adversely affect” a
species means that “effects on listed species are
expected to be discountable, or insignificant, or completely
beneficial”). Plaintiffs do not dispute the fact that
the FWS came to the “not likely to adversely
affect” conclusion, but nevertheless object to it
because it purportedly pertains to professional cougar
removal outside of the MWEPA and because it is not based on
an independent FWS analysis of the Cougar Rule. Plaintiffs
may not like the conclusions made by the Department regarding
the Bighorn Sheep Restoration Program, but their objections
do not create a material issue of fact about this
5, Plaintiffs claim that under the Cougar Rule, the same
rules that apply to the types of traps permitted for the
trapping of other furbearers also apply to the setting of
traps or snares for cougars within the MWEPA or currently
occupied Mexican gray wolf range. They contend that these
rules allow trappers to use laminated leghold traps with an
inside jaw spread of up to seven inches, and nonlaminated
leghold traps of any jaw spread, for trapping
cougars. N.M. Admin. Code § 18.104.22.168. Pltffs' Fact
5. Plaintiffs' Fact 8 states that Mexican wolves caught
in leghold traps or snares of the size authorized by the
Cougar Rule may suffer injury or death. Arrivo Dec., Exs. G,
H & K; Niemeyer Dec., ¶¶ 29-39; Hopkins Dec.,
dispute Plaintiffs' Fact 5 and 8 because under the New
Mexico Administrative Code, all traps which have an outside
jaw spread greater than seven (7) inches (including possible
lamination) are not legal in New Mexico. NMAC
§22.214.171.124. If the inside jaw spread is greater than
five and on-half (5.5) inches, the trap jaws must be offset
and padded. Id., Griego Decl., Doc. 99-1,
¶¶4-8. The actual language of the regulation
No foot-hold trap with an outside spread larger than 7 inches
if laminated above the jaw surfaces or tooth-jawed traps,
shall be used in making a land set. All foot-hold traps with
an inside jaw spread equal to or greater than 5.5 inches
shall be offset unless they have padded jaws.
NMAC §§126.96.36.199(B)(2). Plaintiffs claim that the
provision, by its express language, prohibits the use only of
laminated traps with jaw spreads larger than seven
inches and by default allows the use of nonlaminated
traps that are over seven inches of jaw spread. See
Niemeyer Decl., ¶15; Arrivo Decl., Exs. L & O (traps
available for purchase generally). Based solely on his own
review of the regulation, and without any other evidentiary
support, Mr. Niemeyer stated that traps with jaw spreads that
exceed 7 inches may be used for trapping cougars, and that
these traps would meet the New Mexico trapping regulation
requirements “because their jaws are not
laminated.” Doc. 89, ¶15. At the hearing, the
Court questioned the basis for Plaintiffs' reading of the
rule because it just did not make sense to prohibit the use
of smaller laminated traps while allowing larger nonlaminated
ones. In his Declaration, Mr. Griego stated:
The intent of the rule, as well as how it has historically
been enforced, is that even if one or both of the jaws are
laminated, the outside jaw spread cannot exceed seven (7)
inches. If the inside jaw spread is greater than five and
one-half (5.5) inches, the trap jaws shall be offset or
padded. The maximum outside jaw spread size of seven (7)
inches includes any possible lamination. Therefore, all traps
which have an outside jaw spread greater than seven (7)
inches are not legal in New Mexico.
Griego Decl., ¶¶6-7 (citing N.M. Admin. Code
§§ 188.8.131.52(B)(2)). The Court clarified this
issue at the hearing, where defense counsel explained that
laminated traps were “more humane, ” and meant to
trap rather than kill, but the rule ensures that the
thickness of the lamination is taken into account and
included in the total size of the jaw so that larger traps
are not used simply by disregarding the width of the
lamination. Based on the Court's reading of this
administrative code provision and the other evidence on this
point presented at the hearing, the Court is convinced that
Plaintiffs' gloss of the provision is incorrect and that
Defendants' reading of the rule is more in line with the
purpose behind the administrative code. The only reasonable
interpretation of the provision is that the New Mexico
Administrative Code (and by extension, the Cougar Rule) does
not allow use of foot-hold traps that are larger than 7
inches in diameter, taking into account the thickness of
lamination. The Court therefore considers Plaintiffs'
Facts 5 and 8 to be disputed as well as unsupported by
contend that Plaintiffs can neither establish standing nor
succeed on the merits because since the Cougar Rule took
effect, there is no evidence that a single Mexican gray wolf
has been caught in a trap set for cougars. Further, since the
Cougar Rule took effect, there are only two instances of a
Mexican gray wolf being caught in any trap and in both
instances, the traps were set for coyotes. Defendants also
point out that even prior to the effective date of the Cougar
Rule, there is no record of a Mexican gray wolf ever
being caught in a trap set for cougars. Plaintiffs respond
that a one-year season provides insufficient statistical
evidence that wolves will not be caught in cougar traps; and
that because there is no way to modify these traps to
minimize or avoid capturing wolves, Mexican gray wolves will
be harmed by the Cougar Rule.
contend that Plaintiffs have failed to establish
injury-in-fact as part of the requirements for standing. For
standing purposes, a plaintiff must meet three elements.
First, the plaintiff must have suffered an
“injury-in-fact” that is both: (a)
“concrete and particularized”; and (b)
“actual or imminent, not conjectural or
hypothetical.” Lujan v. Defenders of Wildlife,
504 U.S. 555, 560 (1992). Second, the plaintiff must
establish a “causal connection” between the
injury and the defendant's acts. Third, the injury must
be “likely to be redressed by a favorable
decision.” Id.. A failure to meet any one of
these three criteria constitutes a lack of Article III
standing and requires dismissal for lack of subject matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1).
See League of United Latin Am. Citizens, N.M. (LULAC) v.
Ferrera, 792 F.Supp.2d 1222, 1229 (D.N.M. 2011).
argue that Plaintiffs fail to show evidence of
injury-in-fact. They contend that at this summary judgment
juncture, Plaintiffs offer only bare assertions of perceived
injury to Mexican wolves which are insufficient to confer
standing. See Amigos Bravos v. U.S. Bureau of Land
Mgmt., 816 F.Supp.2d 1118, 1128 (D.N.M. 2011) (no
standing where plaintiffs' allegations were conjectural
and hypothetical and where plaintiffs offered only
inadmissible non-expert opinions as a basis for their
standing in case). Defendants rely on the lack of any
evidence that Mexican wolves have been trapped in traps
intended for cougars either within or outside of the MWEPA.
Court has addressed the standing issue once before in the
context of Defendants' motion to dismiss, and finds it
unnecessary to do so again. Doc. 28 at 20 (finding that
Plaintiffs had “adequately pled that imminent harm to
the wolves . . . is “fairly traceable” to
Defendants' actions”). It is true that something
more is expected in a summary judgment context in that
Plaintiffs must now present sufficient evidence-not
just allegations-in order to survive the standing inquiry.
See Utah Ass'n of Ctys. v. Bush, 455 F.3d 1094,
1100 (10th Cir. 2006) (plaintiff must “set forth”
by affidavit or other evidence “specific facts, ”
which for purposes of the summary judgment motion will be
taken to be true”) (citing Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561 (1992)); Comm. to Save
the Rio Hondo v. Lucero, 102 F.3d 445, 449 (10th Cir.
1996) (“Rio Hondo”) (at the summary
judgment stage, injury in fact requires “a factual
showing of perceptible harm) (citing Defenders of
Wildlife, 504 U.S. at 566). However, as it turns out,
the standard for showing an injury-in-fact for a standing
analysis mirrors the inquiry used later on the merits
question when determining whether Plaintiffs have shown the
existence of the “harm” required for injunctive
relief. The Court sees no need to do the same thing twice,
and will not venture further into the standing question
because (1) it has already been determined favorably to
Plaintiffs and (2) the Court will take up the issue of
whether injury or harm occurred when discussing the causation
issue within the merits analysis.
Liability of State Agencies
their cross-motion for summary judgment, Plaintiffs argue
that state agencies are liable for authorizing and permitting
conduct that is likely to cause take of endangered species.
See Doc. 88 at 7. The Court has already passed on
this issue, concluding that “a state licensing scheme
can be a proximate cause of a taking in violation of the
ESA.” Doc. 86 at 12 (Mem. Opin. & Order on
Defts' Judgment on Pleadings). The Court need not make
further findings on the issue.
Standard for Showing of Harm: “Actual” or
relief is available for a violation Section 9 of ESA.
Defenders of Wildlife, 882 F.2d 1294, 1301 (8th Cir.
2015); Strahan v. Coxe, 127 F.3d 155, 166 (1st Cir.
1997); 16 U.S.C. § 1540(g)(1). However, parties disagree
on the appropriate standard for an injunction to ensue.
Defendants insist that in order to obtain injunctive relief,
Plaintiffs must show that actual harm to Mexican wolves has
already occurred in violation of §9 and the
10(j) Rule; but Plaintiffs claim that harm need not have
actually occurred and the correct standard is whether the
authorization of cougar trapping under the Cougar Rule causes
“a reasonable likelihood of actual future harm”
to the Mexican gray wolf. Based on an analysis of the
available case law, the Court finds that Plaintiffs are
correct on the standard to be used.
starting point is the complaint, which alleges a violation of
ESA Section 9. ¶¶98-110. Plaintiffs specifically
allege that Defendants will cause the unlawful take of
Mexican wolves to be committed by authorizing cougar trapping
and snaring within the MWEPA through the Cougar Rule and
subsequent licensing and implementation, in violation of the
Revised 10(j) Rule and Section 9 of the ESA. 16 U.S.C. §
1538(a)(1)(G), (g). Compl., ¶104. The term
“take” is defined in Section 3(19) of the ESA to
mean “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). The
statute does not further define any of the terms found in
this definition, but through regulation the FWS has further
defined the terms “harass” and
“harm.” “Harm” in the definition of
“take” in the Act means an act which actually
kills or injures wildlife. Such acts may include significant
habitat modification or degradation where it actually kills
or injures wildlife by significantly impairing essential
behavioral patterns, including breeding, feeding or
sheltering. 50 C.F.R. § 17.3. The FWS has defined the
term “harass” to mean “an
intentional or negligent act or omission which creates the
likelihood of injury to wildlife by annoying it to such an
extent as to significantly disrupt normal behavioral patterns
which include, but are not limited to, breeding, feeding or
sheltering.” 50 C.F.R. § 17.3
rely on two First Circuit cases: Am. Bald Eagle v.
Bhatti and Strahan v. Linnon, which cites
Bhatti. Relying on the ESA's definition of a
“taking, ” the court in Bhatti concluded
that the standard for establishing taking of species under
the Act required showing of actual harm,
rather than any numerical probability of harm:
Clearly, then, for there to be “harm” under the
ESA, there must be actual injury to the listed species.
Accordingly, courts have granted injunctive relief
only where petitioners have shown that the alleged activity
has actually harmed the species or if continued will
actually, as opposed to potentially, cause harm to the
species.See Defenders of Wildlife v.
Administrators,882 F.2d 1294 (8th Cir.1988) (enjoining
the EPA from continuing its registration of strychnine after
finding that continued registration of the substance resulted
in poisonings of protected species); Sierra Club v.
Yeutter,926 F.2d 429 (5th Cir.1991) (enjoining the
United States Forest Service from even-aged lumbering