NM Dept. of Game and Fish v. DOI, et al

Filing

[10462025] Reversed/Vacated and Remanded; Terminated on the merits after oral hearing; Written, signed, published; Judges Holmes, Matheson (concurring) and McHugh (authoring). Mandate to issue. --[Edited 04/25/2017 by GH to replace PDF originally attached to entry with updated PDF containing Judge Matheson's concurrence]. [16-2189, 16-2202]

Appellate Case: 16-2189

Document: 01019799804

Date Filed: 04/25/2017

PUBLISH

Page: 1
FILED
United States Court of Appeals
Tenth Circuit

UNITED STATES COURT OF APPEALS

April 25, 2017

FOR THE TENTH CIRCUIT
_________________________________

Elisabeth A. Shumaker
Clerk of Court

NEW MEXICO DEPARTMENT OF
GAME AND FISH,
Petitioner - Appellee,
v.
Nos. 16-2189 & 16-2202
UNITED STATES DEPARTMENT OF
THE INTERIOR; RYAN ZINKE,* in his
official capacity as Secretary of the United
States Department of the Interior; UNITED
STATES FISH AND WILDLIFE
SERVICE; JIM KURTH,† in his official
capacity as Acting Director of the United
States Fish and Wildlife Service;
DR. BENJAMIN TUGGLE, in his official
capacity as Southwest Regional Director
for the United States Fish and Wildlife
Service,
Respondents,
and
DEFENDERS OF WILDLIFE; CENTER
FOR BIOLOGICAL DIVERSITY;
WILDEARTH GUARDIANS; NEW
MEXICO WILDERNESS ALLIANCE,
Defendants
Intervenors - Appellants,
*

Ryan Zinke is substituted for Sally Jewell as Secretary of the United States
Department of the Interior pursuant to Fed. R. App. P. 43(c)(2).
†
Jim Kurth, Acting Director for the United States Fish and Wildlife Service, is
substituted for Daniel M. Ashe pursuant to Fed. R. App. P. 43(c)(2).

Appellate Case: 16-2189

Document: 01019799804

Date Filed: 04/25/2017

Page: 2

and
_________________
FOUNDATION TO PROTECT NEW
MEXICO WILDLIFE; NEW MEXICO
FARM AND LIVESTOCK BUREAU;
NEW MEXICO CATTLE GROWERS
ASSOCIATION, SPUR RANCH CATTLE
CO. LLC; MOUNTAIN STATES LEGAL
FOUNDATION; ASSOCIATION OF
FISH AND WILDLIFE AGENCIES;
STATE OF COLORADO; STATE OF
ALABAMA; STATE OF ALASKA;
STATE OF ARIZONA; STATE OF
ARKANSAS; STATE OF IDAHO;
STATE OF KANSAS; STATE OF
MICHIGAN; STATE OF MONTANA;
STATE OF NEBRASKA; STATE OF
NEVADA; STATE OF NEW
HAMPSHIRE; STATE OF OKLAHOMA;
STATE OF SOUTH DAKOTA; STATE
OF TEXAS; STATE OF UTAH; STATE
OF WISCONSIN; STATE OF
WYOMING; ROCKY MOUNTAIN ELK
FOUNDATION; SAFARI CLUB
INTERNATIONAL,
Amici Curiae.
________________________________
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 1:16-CV-00462-WJ-KBM)
_________________________________
McCrystie Adams (James Jay Tutchton with her on the briefs), Defenders of Wildlife,
Denver, Colorado, for Defendants Intervenors-Appellants.
Rachel Heron, Attorney, United States Department of Justice, Environment and Natural
Resources Division, Washington, D.C. (John C. Cruden, Assistant Attorney General;
Andrew Mergen, Ellen Durkee, Meredith L. Flax, Bridget Kennedy McNeil, Clifford E.
Stevens, Jr., and Andrew A. Smith, Attorneys, United States Department of Justice,
2

Appellate Case: 16-2189

Document: 01019799804

Date Filed: 04/25/2017

Page: 3

Environment and Natural Resources Division, Washington, D.C.; and Ann Navarro and
Justin Tade, Office of the Solicitor, United States Department of the Interior, with her on
the briefs), for Respondents.
Matthias L. Sayer, New Mexico Department of Game and Fish, Santa Fe, New Mexico
(Paul S. Weiland, Benjamin Z. Rubin, Ashley J. Remillard, Nossaman LLP, Irvine,
California, with him on the briefs), for Petitioner-Appellee.
Kate Ferlic and Kristina Caffrey, Egolf + Ferlic + Harwood, LLC, Santa Fe, New
Mexico, filed an amicus brief on behalf of Foundation to Protect New Mexico Wildlife.
Kent Holsinger, Holsinger Law, LLC, Denver, Colorado, filed an amicus brief on behalf
of New Mexico Farm and Livestock Bureau.
M. Reed Hopper, Pacific Legal Foundation, Sacramento, California, filed an amicus brief
on behalf of New Mexico Cattle Growers Association.
Carol Bambery, Association of Fish and Wildlife Agencies, Washington, D.C., filed an
amicus brief on behalf of Association of Fish and Wildlife Agencies.
John I. Kittel, Mazur and Kittel, PLLC, Farmington Hills, Michigan, filed an amicus brief
on behalf of Rocky Mountain Elk Foundation.
Anna M. Seidman and Douglas S. Burdin, Safari Club International, Washington, D.C.,
filed an amicus brief on behalf of Safari Club International.
Gina Cannan and Steven J. Lechner, Mountain States Legal Foundation, Lakewood,
Colorado, filed an amicus brief on behalf of Spur Ranch Cattle Co. LLC and Mountain
States Legal Foundation.
Lisa A. Reynolds, Assistant Attorney General, Office of the Colorado Attorney General,
Denver, Colorado (Cynthia Coffman, Attorney General; Frederick R. Yarger, Solicitor
General; with her on the briefs) (together with Luther Strange, Attorney General of
Alabama, Montgomery, Alabama; Jahna Lindemuth, Attorney General of Alaska, Juneau,
Alaska; Mark Brnovich, Attorney General of Arizona, Phoenix, Arizona; Leslie
Rutledge, Attorney General of Arkansas, Little Rock, Arkansas; Lawrence G. Wasden,
Attorney General of Idaho, Boise, Idaho; Derek Schmidt, Attorney General of Kansas,
Topeka, Kansas; Bill Schuette, Attorney General of Michigan, Lansing, Michigan; Tim
Fox, Attorney General of Montana, Helena, Montana; Douglas J. Peterson, Attorney
General of Nebraska, Lincoln, Nebraska; Adam Paul Laxalt, Attorney General of
Nevada, Carson City, Nevada; Joseph A. Foster, Attorney General of New Hampshire,
Concord, New Hampshire; E. Scott Pruitt, Attorney General of Oklahoma, Oklahoma
City, Oklahoma; Marty J. Jackley, Attorney General of South Dakota, Pierre, South
3

Appellate Case: 16-2189

Document: 01019799804

Date Filed: 04/25/2017

Page: 4

Dakota; Ken Paxton, Attorney General of Texas, Austin, Texas; Sean D. Reyes, Attorney
General of Utah, Salt Lake City, Utah; Brad D. Schimel, Attorney General of Wisconsin,
Madison, Wisconsin; Peter K. Michael, Attorney General of Wyoming, Cheyenne,
Wyoming) filed an amicus brief on behalf of the States of Colorado, Alabama, Alaska,
Arizona, Arkansas, Idaho, Kansas, Michigan, Montana, Nebraska, Nevada, New
Hampshire, Oklahoma, South Dakota, Texas, Utah, Wisconsin and Wyoming.
_________________________________
Before HOLMES, MATHESON, and McHUGH, Circuit Judges.
_________________________________
McHUGH, Circuit Judge.
_________________________________
These consolidated appeals arise from the district court’s grant of a
preliminary injunction to the New Mexico Department of Game and Fish (the
“Department”). The injunction followed the release, without a state permit, of two
Mexican gray wolf pups on federal land located in New Mexico by the United States
Fish and Wildlife Service (“FWS”), an agency within the United States Department
of the Interior (“Interior”). The district court’s order enjoins Interior, FWS, and
certain individuals in their official capacities from importing or releasing: (1) any
Mexican gray wolves into the State without first obtaining the requisite state permits;
and (2) any Mexican gray wolf offspring into the State in violation of prior state
permits. Interior, FWS, Ryan Zinke, in his official capacity as Secretary of the
Interior, Jim Kurth, in his official capacity as Acting Director of FWS, Dr. Benjamin
Tuggle, in his official capacity as Southwest Regional Director for FWS (collectively
“Federal Appellants”), and intervening defendants Defenders of Wildlife, Center for
Biological Diversity, WildEarth Guardians, and New Mexico Wilderness Alliance
4

Appellate Case: 16-2189

Document: 01019799804

Date Filed: 04/25/2017

Page: 5

(collectively “Intervenor Appellants”) separately filed timely appeals contending the
district court abused its discretion in granting the Department a preliminary
injunction.
Exercising jurisdiction under 28 U.S.C. § 1292, we reverse and vacate the
district court’s entry of a preliminary injunction.
I.

BACKGROUND

A. Factual History1
1. Mexican Gray Wolf Status and Recovery Efforts
The Mexican gray wolf (Canis lupus baileyi) is the smallest, rarest, and
southernmost occurring subspecies of the North American gray wolf (Canis lupus).
See Endangered and Threatened Wildlife and Plants; Revision to the Regulations for
the Nonessential Experimental Population of the Mexican Wolf, 80 Fed. Reg. 2512–

1

Although the parties and amici curiae present or refer, in varying degrees, to
extra-record evidence to support their arguments, we focus only on the record before
the district court. See Regan-Touhy v. Walgreen Co., 526 F.3d 641, 648 (10th Cir.
2008) (“We generally limit our review on appeal to the record that was before the
district court when it made its decision . . . .”); see also Verlo v. Martinez, 820 F.3d
1113, 1125–26 (10th Cir. 2016) (determining that “[w]e will not hold that the district
court abused its discretion based on evidence not before it when it ruled,” and further
holding that “our review is limited to the evidence before the district court at the time
of the preliminary injunction hearing, and we will not consider post-injunction
events”). It is well-established that parties cannot build a new record on appeal. See
United States v. Kennedy, 225 F.3d 1187, 1191 (10th Cir. 2000) (“Federal Rule of
Appellate Procedure 10(e) authorizes modification of the record only to the extent it
is necessary to ‘truly disclose what occurred in the district court.’” (quoting Fed. R.
App. P. 10(e)) (internal alterations omitted)); id. (“This court will not consider
material outside the record before the district court.”); Anthony v. United States, 667
F.2d 870, 875 (10th Cir. 1981) (finding Federal Rule of Appellate Procedure 10(e)
“allows a party to supplement the record on appeal,” but “does not grant a license to
build a new record”).
5

Appellate Case: 16-2189

Document: 01019799804

Date Filed: 04/25/2017

Page: 6

01, 2514 (Jan. 16, 2015) (to be codified at 50 C.F.R. pt. 17). “The gray wolf . . . has
been at the forefront of the movement to conserve endangered species for many
years” because “[b]y the 1930s, wolves were nearly erased from the lower 48 states
as a result of one of the most effective eradication campaigns in modern history.”
Humane Soc’y of the United States v. Jewell, 76 F. Supp. 3d 69, 81 (D.D.C. 2014)
(quoting Hope M. Babcock, The Sad Story of the Northern Rocky Mountain Gray
Wolf Reintroduction Program, 24 Fordham Envtl. L. Rev. 25, 38 (2013)). These
eradication efforts, initiated primarily to decrease the loss of livestock to wolf
predation, included the trapping, shooting, and poisoning of wolves, and had a
significant impact on the population of Mexican gray wolves in the United States.
Largely as a result of these efforts, the Mexican gray wolf was thought to have been
extirpated from its historic range by the 1970s.2 WildEarth Guardians v. Ashe, No.
CV-15-00019, 2016 WL 3919464, at *1 (D. Ariz. May 16, 2016) (citing 80 Fed. Reg.
2512–01).
In an effort to preserve and restore the Mexican gray wolf population, the
subspecies was first listed as endangered in 1976, under the Endangered Species Act
of 1973 (the “Act”). Determination That Two Species of Butterflies Are Threatened
Species & Two Species of Mammals Are Endangered Species, 41 Fed. Reg. 17,736–
01, 17,737–40 (Apr. 28, 1976) (to be codified at 50 C.F.R. pt. 17). The 1976 listing
2

“In 1975, it was believed that fewer than 200 members of [the Mexican] gray
wolf subspecies remained in Mexico and in the United States.” Humane Soc’y of the
United States v. Jewell, 76 F. Supp. 3d 69, 82 (D.D.C. 2014) (citing Lists of
Endangered and Threatened Fauna, 40 Fed. Reg. 17,590–01, 17,590 (Apr. 21, 1975)).
6

Appellate Case: 16-2189

Document: 01019799804

Date Filed: 04/25/2017

Page: 7

was later subsumed by a final rule promulgated by FWS in 1978, which listed the
entire gray wolf species in North America, south of Canada and excepting Minnesota,
as endangered under the Act.3 Reclassification of the Gray Wolf in the United States
and Mexico, With Determination of Critical Habitat in Michigan and Minnesota, 43
Fed. Reg. 9607–01, 9607–615 (Mar. 9, 1978) (to be codified at 50 C.F.R pt. 17); see
also 50 C.F.R. § 17.11(h) (2016). Between 1977 and 1980, the United States and
Mexico worked in partnership to capture the last remaining wild Mexican gray
wolves in order to initiate a captive breeding program referred to as the Mexican
Wolf Species Survival Plan. 80 Fed. Reg. 2512–01 at 2515. As its name suggests, the
two nations established the breeding program to prevent the extinction of the
subspecies and to reestablish the Mexican wolf in the wild by breeding the wolves in
captivity and eventually releasing them or their offspring into the wild. Id.
In 1982, FWS developed and adopted the first Mexican Wolf Recovery Plan to
assist in the conservation and survival of the Mexican gray wolf, as required by 16
U.S.C. § 1533(f)(1).4 This plan provides detailed information regarding the history
and status of the Mexican gray wolf, and sets forth numerous recommendations and
steps to be taken to enhance the prospect of the wolves’ recovery. In detailing the
3

The species was listed as threatened only in Minnesota. Reclassification of
the Gray Wolf in the United States and Mexico, With Determination of Critical
Habitat in Michigan and Minnesota, 43 Fed. Reg. 9607–01, 9612 (Mar. 9, 1978) (to
be codified at 50 C.F.R pt. 17); see also 50 C.F.R. § 17.11(h) (2016).
4

FWS has initiated various efforts to revise this recovery plan, but it has yet to
issue a finalized revision. Until FWS completes a revised recovery plan, which is
expected by November 2017, the 1982 Mexican Wolf Recovery Plan remains the
only completed recovery plan for the subspecies.
7

Appellate Case: 16-2189

Document: 01019799804

Date Filed: 04/25/2017

Page: 8

objectives of the plan, FWS did not include criteria for defining when the subspecies’
recovery would be sufficient to merit delisting, as is generally required by 16 U.S.C.
§ 1533(f)(1)(B)(ii). Instead, FWS indicated it foresaw “no possibility for [a]
complete delisting of the Mexican wolf” due to the depressed state of its population.
Accordingly, FWS focused its efforts on the conservation and survival of the
subspecies, and the eventual reintroduction of the subspecies into the wild.
To that end, FWS determined its primary objectives to be “maintaining a
captive breeding program and re-establishing a viable, self-sustaining population of
at least 100 Mexican wolves in the middle to high elevations of a 5,000-square-mile
area within the Mexican wolf’s historic range.”5 In keeping with these stated
objectives, FWS promulgated a final rule under Section 10(j) of the Act in 1998
(“1998 10(j) Rule”) establishing an experimental wild population of the Mexican
gray wolf. Endangered and Threatened Wildlife and Plants; Establishment of a
Nonessential Experimental Population of the Mexican Gray Wolf in Arizona and
New Mexico, 63 Fed. Reg. 1752–01, 1752 (Jan. 12 1998) (to be codified at 50 C.F.R.
pt. 17). FWS designated this population as “nonessential” to the continued existence
of the species.6 Id. In addition to specifying population management guidelines, and

5

The Mexican wolf’s historic range generally includes present-day Arizona,
New Mexico, southwestern Texas, and much of Mexico. See 40 Fed. Reg. 17,590–01
at 17,590.
6

Before the Secretary of the Interior may authorize the establishment of an
experimental population of an endangered or threatened species, Section 10(j) of the
Act requires the Secretary to determine “on the basis of the best available
information, whether or not such population is essential to the continued existence of
8

Appellate Case: 16-2189

Document: 01019799804

Date Filed: 04/25/2017

Page: 9

procedures for the “take” of individual wolves, the 1998 10(j) Rule allowed FWS to
reintroduce Mexican wolves to the Blue Range Wolf Recovery Area—an area
consisting of the entire Apache and Gila National Forests in east-central Arizona and
west-central New Mexico.7 Id. at 1752–54, 1764–65. The 1998 10(j) Rule also
“authorized the release of 14 family groups of wolves [into the recovery area] over a
period of five years.” WildEarth Guardians, 2016 WL 3919464 at *1.
Since adoption of the rule, FWS has released a number of Mexican wolves into
the Blue Range Wolf Recovery Area. But progress in meeting the wild population
objective was slower than projected. See 80 Fed. Reg. 2512–01 at 2516, 2551. By
year-end 2015, FWS estimated there were only ninety-seven Mexican wolves in the
wild population. And the recovery program has run into barriers to increasing that
number, including decreased genetic diversity and inbreeding—which Appellants
an endangered species.” 16 U.S.C. § 1539(j)(2)(B). An “essential experimental
population” is defined as a “population whose loss would be likely to appreciably
reduce the likelihood of the survival of the species in the wild. All other experimental
populations are to be classified as nonessential.” 50 C.F.R. § 17.80(b). When an
experimental population is deemed nonessential, it is treated as a species proposed to
be listed under the Act and is not afforded designated critical habitat. 16 U.S.C.
§ 1539(j)(2)(C).
7

The 1998 10(j) Rule also indicated FWS would reintroduce wolves into the
White Sands Wolf Recovery Area, “the designated back-up area,” if it determined “it
to be both necessary for recovery and feasible.” Endangered and Threatened Wildlife
and Plants; Establishment of a Nonessential Experimental Population of the Mexican
Gray Wolf in Arizona and New Mexico, 63 Fed. Reg. 1752, 1752–53, 1756–58, 1767
(Jan. 12 1998) (to be codified at 50 C.F.R. pt. 17). Both recovery areas are part of the
larger Mexican Wolf Experimental Population Area (“MWEPA”). See Endangered
and Threatened Wildlife and Plants; Revision to the Regulations for the Nonessential
Experimental Population of the Mexican Wolf, 80 Fed. Reg. 2512–01, 2515 Figure 1
(Jan. 16, 2015) (to be codified at 50 C.F.R. pt. 17).
9

Appellate Case: 16-2189

Document: 01019799804

Date Filed: 04/25/2017

Page: 10

allege has decreased the reproduction rate of the wolves and may compromise the
health of the wild population.
To address these and other issues, in June 2013, FWS proposed to delist the
gray wolf, list the Mexican gray wolf subspecies as endangered, and revise the 1998
10(j) Rule. Id. at 2513. After it issued an Environmental Impact Statement for the
proposed revisions, and the requisite notice and comment periods concluded, FWS
promulgated its finalized revision to the 1998 10(j) Rule (“Revised 10(j) Rule”) on
January 16, 2015. See id. at 2512–13. The Revised 10(j) Rule, like the 1982 Mexican
Wolf Recovery Plan and the 1998 10(j) Rule, does not purport to establish a plan to
bring the Mexican gray wolf population to full recovery. Rather, it aims to increase
the nonessential experimental wild population in order “to contribute to the future
population goal . . . for the range-wide recovery of the Mexican wolf,” once a
comprehensive recovery goal is established and delisting is foreseeable.8 Id. at 2517.
However, among other changes, the Revised 10(j) Rule triples the population
objective for the experimental population, from 100 to between 300 and 325 wolves.
Id. at 2514–17, 2548–49. It also increases the Mexican Wolf Experimental
Population Area (“MWEPA”) and substantially expands the boundaries in New
Mexico and Arizona where Mexican gray wolves are permitted to inhabit and be
released. In addition, it eliminates the Blue Range Wolf Recovery Area and replaces
8

As previously noted, the 1982 Mexican Wolf Recovery Plan does not include
criteria for determining when the species population would be sufficient to merit
delisting. FWS intends to include such criteria in its November 2017 revision to the
recovery plan.
10

Appellate Case: 16-2189

Document: 01019799804

Date Filed: 04/25/2017

Page: 11

it with three distinct zones, each with separate guidelines governing the release,
translocation, and occupancy of Mexican gray wolves within the zone. Id. at 2520,
2522–23. Finally, the Revised 10(j) Rule modifies procedures for New Mexico and
Arizona to obtain authorization to remove Mexican wolves from the MWEPA where
wolf predation is determined to have an unacceptable impact9 on a wild ungulate
herd.10 Id. at 2516–25, 2561; see also 50 C.F.R. § 17.84(k).
2. New Mexico Release and Importation Permits
Federal Appellants allege the State and the Department worked collaboratively
with FWS to conserve the Mexican gray wolf until 2011. At that time, the
Department formally suspended its participation in the Mexican Wolf Recovery
Program and withdrew as a partner agency and signatory of the Mexican Wolf
Memorandum of Understanding, which it had signed in both 2003 and 2010.
Thereafter, the Department requested FWS to apply for and receive a state permit, in
accordance with state regulations, before releasing or importing any wolves within

9

The Revised 10(j) Rule explains that an “[u]nacceptable impact to a wild
ungulate herd will be determined by a State game and fish agency based upon
ungulate management goals, or a 15 percent decline in an ungulate herd as
documented by a State game and fish agency, using their preferred methodology.” 50
C.F.R. § 17.84(k)(3).
10

Ungulates are hoofed mammals, and in this case refer primarily to the
State’s elk and deer populations. See Wyoming v. United States, 279 F.3d 1214,
1218–19 n.2 (10th Cir. 2002) (“An ungulate is defined as a ‘hoofed mammal.’”
(quoting Random House Dictionary 2069 (2d ed. 1987))).
11

Appellate Case: 16-2189

Document: 01019799804

Date Filed: 04/25/2017

Page: 12

the State’s borders.11 New Mexico law prohibits the importation and release of nondomesticated animals, including Mexican gray wolves, without a permit from the
Department. See N.M. Code R. § 19.35.7.8; id. § 19.35.7.19; id. § 19.31.10.11.
In accordance with 43 C.F.R. § 24.4(i)(5),12 which directs federal agencies
within Interior to comply with state permitting requirements when reintroducing
wildlife except in certain instances, FWS filed two separate permit applications with
the Department—one on April 1, 2015, and the other on May 6, 2015. In its permit
applications, FWS sought authorization to release no more than twelve wolves within
the State. FWS also sought a waiver from conditions set forth in an importation
permit issued by the Department in January 2015, which allowed FWS to import two
Mexican gray wolves into the State, but “prohibited [FWS] from releasing these
wolves and any offspring and/or associated pups without prior written permission
from the New Mexico Department of Game and Fish.” On June 2, 2015, the Director
of the Department denied both permit applications. As grounds for the denials, the
Director indicated FWS had not demonstrated that the intended releases were

11

FWS made numerous releases and importations between 2002 and 2014
without applying for or obtaining a state permit. FWS appears to have obtained the
Department’s approval for these releases and importations through “less formal”
means than a state permit, including “exchanges of e-mails.” Tr. of Prelim. Inj. Hr’g
11–12, New Mexico Dep’t of Game and Fish v. United States Dep’t of Interior, No.
16-cv-00462-WJ-KBM (D.N.M. 2016) (Dkt. No. 50).
12

43 C.F.R. § 24.4(i)(5) requires FWS to “[c]onsult with the States and
comply with State permit requirements [when reintroducing wildlife], except in
instances where the Secretary of the Interior determines that such compliance would
prevent him from carrying out his statutory responsibilities.”
12

Appellate Case: 16-2189

Document: 01019799804

Date Filed: 04/25/2017

Page: 13

provided for in a state or federal resource or species management plan or strategy, as
required by Section 19.35.7.19(A)(3) of New Mexico’s Administrative Code, and
therefore the Director was unable to determine if such releases would conflict with
state conservation management efforts. See N.M. Code R. § 19.35.7.19(A)(3)
(indicating that in order to obtain a permit to release a non-domesticated animal, an
applicant must “demonstrate that the intended release is provided for in state or
federal resource or species management plans or strategies (CWCS)”); id.
§ 19.35.7.19(C) (“The director shall not approve any release permit that conflicts
with current conservation management.”). FWS appealed the decision to the New
Mexico Game Commission (“Commission”) on June 22, 2015, contending that:
(1) the Director had failed to cite any state conservation management plan with which
the requested release permits might conflict; (2) the intended releases were provided
for in FWS regulations and management plans, including the Revised 10(j) Rule; and
(3) FWS is not required to revise its recovery plan under the Act or State statutes or
regulations. The Commission rejected FWS’s arguments and upheld the Director’s
denial of the permits by issuing a Final Decision on September 29, 2015, in which it
concluded, among other things, that the Revised 10(j) Rule was not a sufficient
“management plan” under State regulations.
3. Release of Wolves Without a State Permit
In response to the Commission’s Final Decision, FWS informed the
Department on October 14, 2015, that it intended to move forward with its wolf
recovery efforts and continue the reintroduction and release of Mexican wolves
13

Appellate Case: 16-2189

Document: 01019799804

Date Filed: 04/25/2017

Page: 14

within the State. In its letter informing the Department of its decision, FWS indicated
that, consistent with 43 C.F.R. § 24.4(i)(5)(i), the Secretary of Interior had
determined that compliance with the state permitting requirements would prevent the
Secretary from carrying out his responsibilities under the Act.13 FWS thus concluded
it had independent legal authority under federal statutes and regulations to import,
export, hold, and transfer wolves within the State, and to release wolves onto federal
lands within the State without a state permit.
Sometime thereafter, FWS issued an Initial Release and Translocation Plan for
2016 under the Mexican Wolf Blue Range Reintroduction Project (“2016 Release
Plan”). This plan identified several specific steps to release, translocate, and crossfoster Mexican wolves in Arizona and New Mexico.14 FWS began implementing that
plan by cross-fostering two Mexican wolf pups on federal land within the State in
April or May 2016. It did so without first applying for or obtaining a state permit. As
a result of these unpermitted releases and FWS’s decision to continue the
reintroduction of wolves on federal lands within the State through implementation of
the 2016 Release Plan, the Department and Commission provided Federal Appellants
a 60-day notice of their intent to initiate litigation on April 20, 2016.
13

Recall that 43 C.F.R. § 24.4(i)(5)(i) provides, in pertinent part, that FWS
must “comply with State permit requirements [in reintroducing wildlife], except in
instances where the Secretary of the Interior determines that such compliance would
prevent him from carrying out his statutory responsibilities.”
14

The term “translocate” is defined as “the release of Mexican wolves into the
wild that have previously been in the wild.” 50 C.F.R. § 17.84(k)(3). This same
section defines “cross-foster” as “the removal of offspring from their biological
parents and placement with surrogate parents.” Id.
14

Appellate Case: 16-2189

Document: 01019799804

Date Filed: 04/25/2017

Page: 15

B. Procedural History
On May 20, 2016, the Department filed a Complaint for Declaratory Judgment
and Injunctive Relief against Federal Appellants, and simultaneously filed a Motion
for Preliminary Injunction and Temporary Restraining Order requesting the district
court to temporarily halt further releases of wolves by FWS within the State’s
borders. After conducting a hearing on the motion on May 26, 2016, the district court
issued a memorandum opinion and order on June 10, 2016, in which it determined
the Department was entitled to injunctive relief. Accordingly, the district court
entered an order enjoining Federal Appellants from importing or releasing any
Mexican wolves in the State without first obtaining permits from the Department.
The order also enjoined Federal Appellants from importing or releasing Mexican
wolf offspring in violation of previously issued state permits. But the district court
denied the Department’s request that Federal Appellants be required to capture and
remove any Mexican wolves that had previously been imported and released in
violation of state law.
On June 6, 2016, Intervenor Appellants filed a Motion to Intervene, which the
district court subsequently granted on July 13, 2016. On July 28, 2016, Intervenor
Appellants filed a Notice of Appeal and shortly thereafter Federal Appellants filed
their Notice of Appeal.
On appeal, Appellants collectively challenge the district court’s findings on all
four preliminary injunction factors. Appellants first contend the district court erred
by holding the Department had sufficiently established a significant risk of
15

Appellate Case: 16-2189

Document: 01019799804

Date Filed: 04/25/2017

Page: 16

irreparable injury. They argue this finding was an abuse of discretion because the
Department failed to provide any factual or legal basis establishing that its wildlife
management efforts would be irreparably harmed or that its sovereignty would be
threatened by FWS’s anticipated releases. Second, Appellants maintain the district
court made legal errors when determining the Department would likely succeed on
the merits of both its federal and state law claims, including (1) failing to accord
deference to Interior’s interpretation of its own regulation; (2) incorrectly interpreting
federal statutes and regulations; and (3) failing to bar the Department’s state law
claims on the basis of sovereign immunity, intergovernmental immunity, or
preemption. Finally, Appellants claim the district court erred on the two remaining
preliminary injunction factors by discounting the harm a preliminary injunction
would cause to the Mexican wolf population, and minimizing the public’s interest in
protecting that population.
We agree that the Department failed to establish that it will suffer irreparable
harm absent an injunction, and we reverse on that basis. We therefore do not consider
whether the Department satisfied the other preliminary injunction factors.
II.

LEGAL STANDARDS
A. Standard of Review

We review the district court’s decision to grant a preliminary injunction for
abuse of discretion. Diné Citizens Against Ruining Our Env’t v. Jewell, 839 F.3d
1276, 1281 (10th Cir. 2016). “An abuse of discretion occurs where a decision is
premised on an erroneous conclusion of law or where there is no rational basis in the
16

Appellate Case: 16-2189

Document: 01019799804

Date Filed: 04/25/2017

Page: 17

evidence for the ruling.” Fish v. Kobach, 840 F.3d 710, 723 (10th Cir. 2016) (internal
quotation marks omitted). In making this determination, “we review the district
court’s factual findings for clear error and its conclusions of law de novo.” Id.
B. Preliminary Injunction Standard
A preliminary injunction is “an extraordinary remedy that may only be
awarded upon a clear showing that the [movant] is entitled to such relief.” Winter v.
Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008); see also Dominion Video
Satellite, Inc. v. Echostar Satellite Corp., 356 F.3d 1256, 1261 (10th Cir. 2004)
(noting that “because a preliminary injunction is an extraordinary remedy, the right to
relief must be clear and unequivocal” (internal quotation marks omitted)). We have
often repeated the well-established standard that:
[f]our factors must be shown by the movant to obtain a preliminary
injunction: (1) the movant is substantially likely to succeed on the
merits; (2) the movant will suffer irreparable injury if the injunction is
denied; (3) the movant’s threatened injury outweighs the injury the
opposing party will suffer under the injunction; and (4) the injunction
would not be adverse to the public interest.15
15

We have indicated that three types of preliminary injunctions are disfavored
and require a movant to meet a heightened standard before a preliminary injunction
may issue. “They are ‘(1) preliminary injunctions that alter the status quo; (2)
mandatory preliminary injunctions; and (3) preliminary injunctions that afford the
movant all the relief that it could recover at the conclusion of a full trial on the
merits.’” Fish v. Kobach, 840 F.3d 710, 723–24 (10th Cir. 2016) (quoting Awad v.
Ziriax, 670 F.3d 1111, 1125 (10th Cir. 2012)). When “seeking such an injunction [the
movant] must make a strong showing both with regard to the likelihood of success on
the merits and with regard to the balance of the harms.” O Centro Espirita
Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 976 (10th Cir. 2004) (en
banc). Here, the district court found it did not need to determine whether the
injunction requested by the Department falls under any of these categories as the
parties did not address it in their briefs, and because it found the Department had
made a sufficiently strong showing to satisfy the heightened burden. We decline to
17

Appellate Case: 16-2189

Document: 01019799804

Date Filed: 04/25/2017

Page: 18

Fish v. Kobach, 840 F.3d 710, 723 (10th Cir. 2016) (internal quotation marks
omitted).
The Department and a pair of amici curiae suggest that a modified preliminary
injunction standard applies in this case—that “[i]f the movant has satisfied the [last]
three requirements for a preliminary injunction, the movant may establish likelihood
of success by showing questions going to the merits so serious, substantial, difficult
and doubtful, as to make the issues ripe for litigation and deserving of more
deliberate investigation.” Walmer v. U.S. Dep’t of Def., 52 F.3d 851, 854 (10th Cir.
1995); see also N. Nat. Gas Co. v. L.D. Drilling, Inc., 697 F.3d 1259, 1266 (10th Cir.
2012) (finding that “generally, where the three latter harm factors weigh in favor of
the movant, the probability of success factor is relaxed” (internal quotation marks
omitted)). Although we have applied this modified approach in the past, our recent
decisions admonish that it is not available after the Supreme Court’s ruling in Winter
v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008). See Diné Citizens
Against Ruining Our Env’t v. Jewell, 839 F.3d 1276, 1287 (10th Cir. 2016)
(“However, as the district court correctly noted, our modified test is inconsistent with
the Supreme Court’s recent decision in [Winter] . . . . Under Winter’s rationale, any
modified test which relaxes one of the prongs for preliminary relief and thus deviates
from the standard test is impermissible”); see also Planned Parenthood Ass’n of Utah
reach this issue for two reasons: (1) the parties did not address it on appeal; and (2)
under either standard, the Department was required to, but did not, show it will suffer
irreparable injury if an injunction does not issue.
18

Appellate Case: 16-2189

Document: 01019799804

Date Filed: 04/25/2017

Page: 19

v. Herbert, 839 F.3d 1301, 1310 (10th Cir. 2016) (Gorsuch, J., dissenting from the
denial of rehearing en banc) (recognizing that although “this court once suggested
that the plaintiff’s burden on the likelihood of success factor may be relaxed when
the other preliminary injunction factors are satisfied . . . the Supreme Court has since
cast doubt on that judgment”). Accordingly, we reject the use of a modified test to
review whether the district court abused its discretion in issuing the preliminary
injunction.
C. New Mexico Regulations
Three provisions of the New Mexico Administrative Code prohibit the
importation and release of non-domesticated animals, including Mexican wolves,
without a permit from the Department. In relevant part, N.M. Code R. § 19.35.7.8
provides “[i]t shall be unlawful to import any live non-domesticated animal into New
Mexico without first obtaining appropriate permit(s) issued by the director.”16
Similarly, N.M. Code R. § 19.35.7.19 states “[n]o person shall release from captivity
an imported animal into New Mexico except by obtaining a release permit from the

16

As noted in the amicus curiae brief submitted by the Foundation to Protect
New Mexico Wildlife, this regulation was revised effective December 2014 to
include a provision requiring the Commission to review “any permit application for
the importation of any carnivore that will be held, possessed or released on private
property for the purpose of recovery, reintroduction, condition, establishment, or
reestablishment in New Mexico.” N.M. Code R. § 19.35.7.8; see also Vol. 25 N.M.
Reg. 755 (December 15, 2014). In addition, the provision allows the Director to issue
a permit only “in accordance with [C]ommission direction following their review of
an application.” N.M. Code R. § 19.35.7.8.
19

Appellate Case: 16-2189

Document: 01019799804

Date Filed: 04/25/2017

Page: 20

director.”17 Finally, N.M. Code R. § 19.31.10.11 makes it “unlawful for any person
. . . to release, intentionally or otherwise, or cause to be released in this state any
mammal . . . except domestic mammals . . . without first obtaining a permit from the
department of game and fish.” The Department contends these regulations allow the
State to protect and preserve wildlife populations by monitoring and managing the
importation and release of animals within the State.
D. Federal Statutes and Regulations
1. The Endangered Species Act and Implementing Regulations
“Congress enacted the [Act] in 1973 to provide for the conservation,
protection, restoration, and propagation of species of fish, wildlife, and plants facing
extinction.” Forest Guardians v. U.S. Fish & Wildlife Serv., 611 F.3d 692, 704 (10th
Cir. 2010) (internal quotation marks omitted). The Act’s scope is broad and affords
varying types of protections for species and subspecies based on their classification
by the Secretary of the Interior (“Secretary”) as endangered or threatened. See, e.g.,
16 U.S.C. § 1538(a). The Secretary is required “to promulgate regulations listing
those species of animals that are ‘threatened’ or ‘endangered’ under specified
criteria, and to designate their ‘critical habitat.’” Bennett v. Spear, 520 U.S. 154,
157–58 (1997). If a species is given either of those classifications, the Act requires
the Secretary to develop and implement “recovery plans” to aid those species’
conservation and survival, unless he finds that such plans will not promote the
17

This regulation similarly requires the Commission to review release permit
applications and allows the Director to issue permits only in accordance with the
Commission’s direction. N.M. Code R. § 19.35.7.19.
20

Appellate Case: 16-2189

Document: 01019799804

Date Filed: 04/25/2017

Page: 21

conservation of the species. 16 U.S.C. § 1533(f)(1). The recovery plans must include,
among other things, a description of necessary site-specific management actions and
“objective, measurable criteria which, when met, would result in a determination . . .
that the species be removed from the [endangered or threatened] list.” Id. §
1533(f)(1)(B)(i)–(ii). These plans also require a notice and comment period before
final approval may be given. Id. § 1533(f)(4).
In 1982, Congress amended the Act “to broaden the FWS’s discretion to
reintroduce endangered and threatened species into their historic ranges.” Forest
Guardians, 611 F.3d at 705. In particular, Congress added Section 10(j) to the Act,18
which allows the Secretary to “authorize the release (and the related transportation)
of any population . . . of an endangered species or a threatened species outside the
current range of such species if the Secretary determines that such release will further
the conservation of such species.” 16 U.S.C. § 1539(j)(2)(A). These populations are

18

We have previously explained:

Congress added section 10(j) to the Endangered Species Act in 1982 to
address the Fish and Wildlife Service's and other affected agencies’
frustration over political opposition to reintroduction efforts perceived
to conflict with human activity. Although the Secretary already had
authority to conserve a species by introducing it in areas outside its
current range, Congress hoped the provisions of section 10(j) would
mitigate industry’s fears experimental populations would halt
development projects, and, with the clarification of the legal
responsibilities incumbent with the experimental populations, actually
encourage private parties to host such populations on their lands.
Wyo. Farm Bureau Fed’n v. Babbit, 199 F.3d 1224, 1231–32 (10th Cir. 2000) (citing
16 U.S.C. § 1539(j); H.R. Rep. No. 97-567, at 8 (1982), reprinted in 1982
U.S.C.C.A.N. 2807, 2808, 2817).
21

Appellate Case: 16-2189

Document: 01019799804

Date Filed: 04/25/2017

Page: 22

referred to as experimental populations. See id. § 1539(j); 50 C.F.R. § 17.80. Under
16 U.S.C. § 1539(j), the Secretary has increased flexibility and managerial discretion
to establish special rules for each experimental population that are designed to better
conserve and recover the endangered or threatened species. See Forest Guardians,
611 F.3d at 705 (“Designation of a population as experimental also allows the
Secretary flexibility and discretion in managing the reintroduction of endangered
species.” (internal quotation marks omitted)); Wyo. Farm Bureau Fed’n v. Babbit,
199 F.3d 1224, 1234 (10th Cir. 2000). But before the Secretary may authorize the
release of an experimental population, he must “by regulation [often referred to as a
10(j) rule] identify the population and determine, on the basis of the best available
information, whether or not such population is essential to the continued existence of
an endangered species or a threatened species.” 16 U.S.C. § 1539(j)(2)(B). If the
Secretary determines that a population is not essential, for purposes of 16 U.S.C.
§ 1536 it is treated as a species proposed to be listed under the Act unless “in an area
within the National Wildlife Refuge System or the National Park System.” 16 U.S.C.
§ 1539(j)(2)(C)(i). In addition, nonessential populations are not afforded designated
critical habitat. Id. § 1539(j)(2)(C)(ii). But otherwise, a nonessential population is
entitled to the protections afforded threatened species under the Act. Id.
§ 1539(j)(2)(C).
Finally, recognizing the inherent potential for conflict between states and the
federal agencies operating under the Act’s authorizations, Congress included the
directive that “[i]n carrying out the program[s] authorized by this [Act], the Secretary
22

Appellate Case: 16-2189

Document: 01019799804

Date Filed: 04/25/2017

Page: 23

shall cooperate to the maximum extent practicable with the States.” 16 U.S.C.
§ 1535(a). Consistent with this provision, and in an attempt to promote comity, the
Secretary issued one of the regulations at issue in this case, which provides as
follows:
(i) Federal agencies of the Department of the Interior shall:
....
(5) Consult with the States and comply with State permit
requirements in connection with the activities listed below,
except in instances where the Secretary of the Interior determines
that such compliance would prevent him from carrying out his
statutory responsibilities:
(i) In carrying out . . . programs involving
reintroduction of fish and wildlife.
43 C.F.R. § 24.4(i)(5)(i) (emphasis added). The Act also provides specific guidance
for instances where state and federal laws conflict:
Any State law or regulation which applies with respect to the
importation or exportation of . . . endangered species or threatened
species is void to the extent that it may effectively (1) permit what is
prohibited by this chapter or by any regulation which implements this
chapter, or (2) prohibit what is authorized pursuant to an exemption or
permit provided for in this chapter or in any regulation which
implements this chapter. This chapter shall not otherwise be construed
to void any State law or regulation which is intended to conserve
migratory, resident, or introduced fish or wildlife, or to permit or
prohibit sale of such fish or wildlife.
16 U.S.C. § 1535(f).

23

Appellate Case: 16-2189

Document: 01019799804

Date Filed: 04/25/2017

Page: 24

2. Applicable Provisions of the Administrative Procedure Act
The Administrative Procedure Act (“APA”) permits parties to challenge the
actions of federal agencies, provided that the suit is not one for money damages.
Section 702 of the APA provides that:
A person suffering legal wrong because of agency action, or adversely
affected or aggrieved by agency action within the meaning of a relevant
statute, is entitled to judicial review thereof. An action in a court of the
United States seeking relief other than money damages and stating a
claim that an agency or an officer or employee thereof acted or failed to
act in an official capacity or under color of legal authority shall not be
dismissed nor relief therein be denied on the ground that it is against the
United States or that the United States is an indispensable party.
5 U.S.C. § 702. In addition to obtaining judicial review of agency action under § 702,
parties may challenge agency action directly under § 706, which permits courts to
“hold unlawful and set aside agency action, findings, and conclusions found to be . . .
arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law.” 5 U.S.C. § 706(2)(A); see also Wyo. Farm Bureau Fed’n, 199 F.3d at 1231
(noting that under § 706 of the APA, we must essentially determine whether an
agency: “(1) acted within the scope of their authority, (2) complied with prescribed
procedures, and (3) took action that was neither arbitrary and capricious, nor an
abuse of discretion”).
III.

DISCUSSION

A. Irreparable Injury
“[A] showing of probable irreparable harm is the single most important
prerequisite for the issuance of a preliminary injunction, [and therefore] the moving
24

Appellate Case: 16-2189

Document: 01019799804

Date Filed: 04/25/2017

Page: 25

party must first demonstrate that such injury is likely before the other requirements
for the issuance of an injunction will be considered.” Dominion Video Satellite, Inc.
v. Echostar Satellite Corp., 356 F.3d 1256, 1260 (10th Cir. 2004) (internal quotation
marks omitted); see also Port City Props. v. Union Pac. R. Co., 518 F.3d 1186, 1190
(10th Cir. 2008). We therefore begin our review by examining the district court’s
determination that the Department satisfied the irreparable injury requirement for
injunctive relief. Because we ultimately find the Department failed to meet its burden
of showing a significant risk of irreparable injury, we need not address the remaining
preliminary injunction factors.
To obtain a preliminary injunction, a movant “must establish . . . that he is
likely to suffer irreparable harm in the absence of preliminary relief.” Winter v. Nat.
Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Although irreparable harm “does not
readily lend itself to definition,” “a plaintiff must demonstrate a significant risk that
he or she will experience harm that cannot be compensated after the fact by money
damages.” Fish v. Kobach, 840 F.3d 710, 751–52 (10th Cir. 2016) (internal
quotations marks omitted). That harm “must be both certain and great,” and not
“merely serious or substantial.” Prairie Band of Potawatomi Indians v. Pierce, 253
F.3d 1234, 1250 (10th Cir. 2001); see also RoDa Drilling Co., v. Siegal, 552 F.3d
1203, 1210 (10th Cir. 2009) (holding “[p]urely speculative harm will not suffice” to
satisfy the burden of showing irreparable injury). Moreover, the injury must be
“likely to occur before the district court rules on the merits.” Greater Yellowstone
Coal. v. Flowers, 321 F.3d 1250, 1260 (10th Cir. 2003); see also Heideman v. S. Salt
25

Appellate Case: 16-2189

Document: 01019799804

Date Filed: 04/25/2017

Page: 26

Lake City, 348 F.3d 1182, 1189 (10th Cir. 2003) (holding that the movant “must
show that the injury complained of is of such imminence that there is a clear and
present need for equitable relief”). “While not an easy burden to fulfill . . . a plaintiff
who can show a significant risk of irreparable harm has demonstrated that the harm is
not speculative.” Greater Yellowstone Coal., 321 F.3d at 1258.
Before the district court, the Department argued it would be irreparably
harmed in two distinct ways absent the grant of a preliminary injunction. First, it
alleged the unpermitted release of wolves would “threaten to disrupt the State’s
comprehensive management effort[s] by introducing an apex predator in numbers, at
locations, and at times not known” to the State, thereby threatening the State’s wild
ungulate herds. Second, it alleged the unpermitted releases would significantly
interfere with the State’s self-governance and invade State sovereignty. In response,
Federal Appellants contended that the Department could not show the anticipated
releases and translocations were likely to result in actual injury to the Department or
to the State’s management of wild ungulate herds. They further argued that legal
precedents reject the notion that federal actions regarding federally protected wildlife
on federal land interferes with a state’s sovereign interests.
In weighing these arguments, the district court first determined that the release
of wolves in violation of the State’s permitting process, and any potential disruption
to the Department’s wildlife management efforts, could not be compensated after the
fact by monetary damages. The district court then found that the Department had
satisfied its burden with respect to irreparable injury by showing that the release of
26

Appellate Case: 16-2189

Document: 01019799804

Date Filed: 04/25/2017

Page: 27

Mexican wolves within the State, without providing the Department knowledge of
the time, location, or number of releases, presented a sufficiently serious risk of harm
to the State’s comprehensive wildlife management efforts. The district court did not
address the Department’s assertions regarding harm to the State’s sovereignty. We
address each ground of irreparable injury advanced by the Department and conclude
it has failed to establish a significant risk of irreparable injury in the absence of an
injunction.
1. The Department failed to establish FWS’s anticipated releases pose a
significant risk of irreparable injury to its wildlife management efforts.
According to Federal Appellants, the Department presented no evidence to the
district court connecting FWS’s planned releases and importations to any significant
adverse effect on the Department’s wildlife management efforts. Given the absence
of such evidence, Federal Appellants claim the district court abused its discretion
when finding the Department had made a sufficient showing of irreparable harm. We
agree.
The party seeking a preliminary injunction faces a high bar—“[t]o constitute
irreparable harm, an injury must be certain, great, actual and not theoretical.”
Heideman, 348 F.3d at 1189 (internal quotation marks omitted). A review of the
relevant evidence presented before the district court shows conclusively that the
Department failed to meet that burden. The only evidence the Department presented
below to support its claim of harm to the State’s wildlife management efforts was the

27

Appellate Case: 16-2189

Document: 01019799804

Date Filed: 04/25/2017

Page: 28

Declaration of Alexandra J. Sandoval, Director of the Department.19 In her
declaration, Director Sandoval explained that the Commission establishes population
management objectives for various species within the State, and that the Department
actively manages a number of these species, including ungulate herds. The Director
also noted that because Mexican wolves prey primarily on ungulate species, the
“predator and prey species must be managed together rather than in isolation from
one another.” Additionally, Director Sandoval stated the population objectives
established by the Commission are generally created through use of an equation that
takes into account several variables, including threats to the existing ungulate
populations, and that the Department’s lack of credible information regarding FWS’s
short- and long-term wolf recovery plans undermines the Department’s ability to
develop accurate species management objectives. Finally, Director Sandoval stated
that the Department’s management of the State’s wildlife could only be successful
when based on accurate data.
But to satisfy the irreparable harm factor, the Department “must establish both
that harm will occur, and that, when it does, such harm will be irreparable.” Vega v.
Wiley, 259 F. App’x 104, 106 (10th Cir. 2007) (unpublished). Director Sandoval’s
declaration suffers from notable omissions in this regard. For example, Director
Sandoval did not identify or address the type, likelihood, imminence, or degree of

19

The Department did submit evidence detailing the number of Mexican wolf
depredations on livestock or pets from 1998 to 2014. But because the Department’s
claims of irreparable injury relate to its ability to manage wild populations of
ungulate species, this information is irrelevant to the present inquiry.
28

Appellate Case: 16-2189

Document: 01019799804

Date Filed: 04/25/2017

Page: 29

harm that the anticipated releases or importations would have on the State’s ungulate
species or the Department’s ability to manage the species’ populations. Rather,
Director Sandoval simply asserted that “[i]ncreasing the population of wolves has the
potential to affect predator-prey dynamics, and may affect other attributes of the
ecosystem.” The Department does not attempt to explain how Director Sandoval’s
statements are sufficient to establish that the anticipated releases are likely to affect
that balance, or that any effect they may have on the balance would be irreparably
harmful to its management efforts. And although the Director’s declaration includes a
conclusory statement that the Department lacks sufficient credible information to
make accurate management objectives, it does not identify the type or level of harm
this alleged deficiency causes to the Department’s ability to manage the State’s
ungulate species. Ultimately, the Director’s statements do not demonstrate that
changes to predator-prey dynamics, other attributes of the ecosystem, or factors
influencing the accuracy of the Department’s management objectives would be at all
harmful to the Department’s management efforts, let alone indicate that any potential
harm would be certain, imminent, and serious.
The district court and Department both assert that harm to the Department’s
wildlife management efforts is likely as a result of the Department’s lack of
“knowledge of the time, location, or number of releases” contemplated by FWS. But
we find this assertion unavailing for two reasons. First, the Department’s claim of
insufficient information regarding the anticipated releases appears unsupported and at
least partially contradicted by the record. The Revised 10(j) Rule details FWS’s
29

Appellate Case: 16-2189

Document: 01019799804

Date Filed: 04/25/2017

Page: 30

intention to release one or two packs of wolves, consisting of two adult wolves and
several pups, every four years for the next eight years, and one or two packs during
the following three successive generations until year twenty of the program.20 80 Fed.
Reg. 2512–01 at 2524. It also identifies seven potential release sites in Zone 1 of the
Mexican Wolf Experimental Population Area. Id. Additionally, after informing the
Department that it intended to proceed with its recovery efforts without state permits,
FWS issued its 2016 Release Plan, in which it outlined plans for releases in 2016—
including efforts to cross-foster pups and release a pack of wolves in New Mexico in
June or July 2016.21
Second, the Department provided no evidence that the lack of any additional
information regarding the time, location, or number of releases, beyond the
documents or materials previously provided to it by FWS, was likely to subject it to
irreparable harm. As previously noted, Director Sandoval’s declaration included
conclusory statements indicating that the Department’s lack of credible information
regarding FWS’s anticipated releases undermines its ability to create accurate
management objectives. Director Sandoval also asserted that the Department’s
20

The Revised 10(j) Rule also indicates FWS “may conduct several additional
releases in the immediate future in excess of 2 effective migrants per generation to
specifically address the high degree of relatedness of wolves in the current” Blue
Range Wolf Recovery Area. 80 Fed. Reg. 2512–01 at 2524.
21

Nearly one month after oral argument, the Department submitted
supplemental authorities pursuant to Federal Rule of Appellate Procedure 28(j),
including FWS’s Initial Release and Translocation Plan for 2017 for the Mexican
Wolf Blue Range Reintroduction Project (“2017 Release Plan”). This evidence was
not presented to the district court, and we do not consider it here. See Verlo, 820 F.3d
at 1126.
30

Appellate Case: 16-2189

Document: 01019799804

Date Filed: 04/25/2017

Page: 31

management of state wildlife species could only be successful when based on
accurate data. But these sweeping assertions were unsupported by any explanation or
evidence for how—or to what extent—this lack of information would adversely
affect the State’s comprehensive wildlife management efforts. And Director Sandoval
could only speculate on whether the planned releases would have any effect on
predator-prey dynamics or other attributes of the ecosystem, irrespective of when and
where they occur.
Finally, the Department notes that its management of the State’s ungulate
species involves, among other things, establishing objectives for and controlling the
populations of the State’s ungulate herds. In addition to claiming FWS’s anticipated
releases affect the Department’s ability to establish accurate population objectives,
Director Sandoval indicated the releases also have the potential to affect predatoryprey dynamics within the State. On appeal, the Department goes one step further by
asserting the releases threaten to disrupt the predator-prey balance it has established
through its permitting and licensing programs because, in part, the releases could
reduce ungulate populations by hundreds or thousands. But Director Sandoval’s
declaration offers no support for these contentions. And even when making the
reasonable assumption that an increase in wolves would lead to increased predation,
nothing in the record before the district court indicates that the FWS releases would
disrupt the predator-prey balance or harm the Department’s ability to manage the
ungulate herd populations. For example, assuming arguendo that the Department is
correct in asserting, for the first time on appeal, that a Mexican wolf may kill over
31

Appellate Case: 16-2189

Document: 01019799804

Date Filed: 04/25/2017

Page: 32

twenty elk and deer per year, the Department offered no evidence that the release of
one, ten, fifty, or even one hundred additional wolves would affect the overall
populations of the State’s ungulate herds or necessitate action from the Department in
order to manage and maintain those populations.22
The significance of the Department’s failure to provide such evidence is
highlighted by the information contained in the Revised 10(j) Rule, which indicates
that between the years 1998 and 2013, FWS’s initial release success rate was only
twenty-one percent. This means that for every one hundred wolves released, only
twenty-one survived, bred, and produced pups. 80 Fed. Reg. 2512–01 at 2524.
Additionally, Federal Appellants presented the declaration of Sheryl L. Barrett, the
Mexican Wolf Recovery Coordinator for Region 2 of FWS. In her declaration, Ms.
Barrett indicated that as of 2014, FWS had detected “no impacts to wild ungulates in
the Blue Range Recovery Area” and predicted the anticipated releases would have a
“less than significant direct and indirect adverse impact[] on wild ungulate prey
species.” Ms. Barrett specified that she reached this conclusion primarily because of
the low wolf-to-elk ratio estimates (2.56 wolves per 1,000 elk in 2014 and an

22

Moreover, the Department cannot establish irreparable injury by asserting
the loss of individual elk or deer. Fund for Animals v. Frizzell, 530 F.2d 982, 987
(D.C. Cir. 1975) (“To equate the death of a small percentage of a reasonably
abundant game species with irreparable injury without any attempt to show that the
well-being of that species may be jeopardized is to ignore the plain meaning of the
word.”); see also Greater Yellowstone Coal. v. Flowers, 321 F.3d 1250, 1256–57
(10th Cir. 2003) (quoting Frizzell, but distinguishing the case before it because “the
animals likely to be harmed . . . belong[ed] to a threatened species, not a ‘reasonably
abundant game species’”).
32

Appellate Case: 16-2189

Document: 01019799804

Date Filed: 04/25/2017

Page: 33

estimated 3.9 wolves per 1,000 elk were the wolf population to reach 300 to 325
wolves), as well as provisions in the Revised 10(j) Rule allowing New Mexico to
request authorization to remove wolves from areas where unacceptable impacts to
wild ungulate herds are occurring. In light of this evidence, the Department’s silence
with respect to any specific effects or adverse impacts to ungulate herds within the
State undercuts its claim of irreparable harm
Ultimately, Director Sandoval’s declaration is insufficient to support the
district court’s finding of irreparable harm. At most, the Director alleges the mere
possibility of an unidentified class and degree of harm. Such speculative assertions
are insufficient to carry the Department’s burden, as “[i]ssuing a preliminary
injunction based only on a possibility of irreparable harm is inconsistent with our
characterization of injunctive relief as an extraordinary remedy that may only be
awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter, 555
U.S. at 22. Standing alone, Director Sandoval’s declaration does not provide any
evidence that FWS’s anticipated releases and importations will impact the State’s
ungulate herds, as opposed to individual members of those herds, or harm the
Department’s management efforts with respect to those populations. Nor does it give
us any reason to depart from the “general rule, [that] a preliminary injunction should
not issue on the basis of affidavits alone.” Lane v. Buckley, 643 F. App’x 686, 689
(10th Cir. 2016) (unpublished) (internal quotation marks omitted). Yet this
declaration is all the district court had before it when it found the State had

33

Appellate Case: 16-2189

Document: 01019799804

Date Filed: 04/25/2017

Page: 34

established it would suffer irreparable harm.23 For these reasons, we conclude the
record before the district court did not provide a rational basis for finding the State’s
comprehensive wildlife management efforts would suffer certain, great, and actual
harm if Federal Appellants continue their Mexican Wolf recovery efforts without
state permits. As a result, we hold the district court abused its discretion in finding on
that basis that the Department had met its burden to show it will suffer irreparable
harm absent an injunction.
2. The Department failed to establish that FWS’s anticipated releases pose a
significant risk of harm to New Mexico’s sovereignty.
As an alternative basis for affirming the district court’s finding of irreparable
harm, the Department contends that unpermitted releases of Mexican wolves by FWS
will harm the sovereign interests of the State, and that such harm constitutes
irreparable injury. The Department did little to raise this argument before the district
court in its motion for a preliminary injunction. And not surprisingly, given the
parties’ focus on the alleged harm to the State’s wildlife management efforts, the
district court did not address whether FWS’s unpermitted releases would irreparably
harm the State’s sovereignty.
On appeal, in response to Federal Appellant’s contention that FWS’s
contemplated releases do not threaten the State’s sovereignty, the Department
23

On appeal, the Department adds a weighty addendum full of extra-record
material that it asks this court to consider. But because none of this evidence was
presented to the district court, we do not consider it. See Verlo v. Martinez, 820 F.3d
1113, 1126 (10th Cir. 2016) (limiting review to the evidence before the district court
at the time of the preliminary injunction hearing).
34

Appellate Case: 16-2189

Document: 01019799804

Date Filed: 04/25/2017

Page: 35

significantly expands its arguments on this issue. Analogizing the present case to one
in which a state has been enjoined from enforcing or effectuating its own statutes, the
Department contends the State “faces significant interference with its core
government functions to establish and enforce laws within its borders” as a result of
FWS’s unpermitted releases, and that it “is being pressured to change its laws to bend
to the demands of [FWS].” The Department argues these allegations are sufficient to
demonstrate a likelihood of irreparable harm because “it is well established that
interference with a State’s sovereign . . . authority is sufficient to establish
irreparable injury.” Id. at 30–31. We disagree and therefore decline the Department’s
invitation to affirm based on this alternative claim of irreparable harm.
In rejecting this argument, we need not resolve the threshold issue of whether
the State has a valid sovereignty interest in creating and enforcing laws related to the
management of wildlife on federal lands. This is because, even assuming the
presence of such an interest, the Department has again failed to meet its burden.
Specifically, the Department has not presented any factual or legal basis for finding
that FWS’s anticipated releases would interfere with the State’s ability to establish or
enforce its laws, or that the releases would pressure the State to change its laws.
It is true, as the Department observes, that “‘[a]ny time a State is enjoined by a
court from effectuating statutes enacted by representatives of its people, it suffers a
form of irreparable injury.’” Maryland v. King, 133 S. Ct. 1, 3 (Roberts, Circuit
Justice 2012) (quoting New Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 1345,
1351 (Rehnquist, Circuit Justice 1977)); see also Planned Parenthood of Greater
35

Appellate Case: 16-2189

Document: 01019799804

Date Filed: 04/25/2017

Page: 36

Texas Surgical Health Servs v. Abbott, 734 F.3d 406, 419 (5th Cir. 2013) (“When a
statute is enjoined, the State necessarily suffers the irreparable harm of denying the
public interest in the enforcement of its laws.”). But these holdings contemplate a
starkly different situation than the one presented in this case.24 Here, New Mexico
has not been enjoined from establishing, enforcing, or effectuating any of its statutes.
Rather, Federal Appellants have been enjoined from effectuating their interpretation
of the Act and their internal regulations. In addition, the Department has offered no
factual or legal support, other than conclusory allegations, that Federal Appellants’
wolf recovery efforts, including releases of wolves without state permits, interfere
with the Department’s ability to establish or effectuate laws, or pressure the State to
change its permitting laws. Instead, Federal Appellants contend that federal law
exempts them from such requirements only where the state permitting requirements
prevent them from complying with their congressionally-mandated responsibility to
recover the species. The Department presents no legal authority that suggests such a
limited exemption invades or harms the State’s sovereign interests.
Absent a legal or factual basis supporting its contention that the anticipated
releases interfere with its core governmental functions, or pressure the State to
change its permitting laws, we find the Department’s allegations of harm to the

24

Moreover, the Department’s reliance on Texas v. United States, 787 F.3d
733 (5th Cir. 2015), and New Mexico ex rel. Richardson v. BLM, 565 F.3d 683, 697
(10th Cir. 2009), is misplaced, as both cases analyze whether states’ sovereignty
interests are sufficient to confer standing.
36

Appellate Case: 16-2189

Document: 01019799804

Date Filed: 04/25/2017

Page: 37

State’s sovereignty unavailing and insufficient to provide a proper basis for a finding
of irreparable harm.
B. The Remaining Preliminary Injunction Factors
Because the district court abused its discretion in finding the Department had
satisfied its burden of showing a significant risk of irreparable injury, we need not
address the remaining preliminary injunction factors. See People for the Ethical
Treatment of Prop. Owners v. U.S. Fish and Wildlife Serv., --- F.3d ---, 2017 WL
1160873, at *12 (10th Cir. 2017) (“If it is not necessary to decide more, it is
necessary not to decide more.” (quoting PDK Labs, Inc. v. DEA, 362 F.3d 786, 799
(D.C. Cir. 2004))). In the absence of that showing, the State is not entitled to the
extraordinary remedy of a preliminary injunction. Dominion Video Satellite, Inc. v.
Echostar Satellite Corp., 356 F.3d 1256, 1260 (10th Cir. 2004) (noting “the moving
party must first demonstrate that such [irreparable] injury is likely before the other
requirements for the issuance of an injunction will be considered”); see also Vega v.
Wiley, 259 F. App’x 104, 105–06 (10th Cir. 2007) (unpublished) (agreeing with the
district court that “a showing of an irreparable injury is a necessary condition for the
issuance of a preliminary injunction . . . [and] the absence of this factor required
denial”); Glenwood Bridge, Inc. v. Minneapolis, 940 F.2d 367, 371 (8th Cir. 1991)
(“[I]n any case the threshold inquiry is whether the movant has shown the threat of
irreparable injury. Thus, we have held that the movant’s failure to sustain its burden
of proving irreparable harm ends the inquiry and the denial of the injunctive request
is warranted.” (internal quotation marks omitted)); Faulkner v. Jones, 10 F.3d 226,
37

Appellate Case: 16-2189

Document: 01019799804

Date Filed: 04/25/2017

Page: 38

235 (4th Cir. 1993) (“A failure to establish irreparable harm is by itself a sufficient
ground upon which to deny a preliminary injunction.” (internal quotation marks
omitted)).
IV. CONCLUSION
The Department failed to present sufficient evidence to support a finding that it
is likely to suffer irreparable harm absent a preliminary injunction. As a result, the
district court abused its discretion in granting the Department’s request for injunctive
relief. We therefore REVERSE and VACATE the district court’s order enjoining
Federal Appellants from importing and releasing (1) any Mexican gray wolves into
the State without first obtaining the requisite state permits, and (2) any Mexican gray
wolf offspring into the State in violation of prior state permits, and REMAND to the
district court for further proceedings not inconsistent with this Opinion.

38

Appellate Case: 16-2189

Document: 01019799804

Date Filed: 04/25/2017

Page: 39

16-2189, 16-2202, New Mexico Dept. of Game & Fish v. DOI, et al.
MATHESON, J., concurring

I join the majority opinion with the exception of section III.A.2., which addresses

an issue the district court did not rely on to issue its preliminary injunction and therefore
is one that we need not address.