New Mexico Cattle Growers Association et al v. United States Forest Service et al
Filing
70
MEMORANDUM OPINION AND ORDER by District Judge James O. Browning GRANTING 26 Opposed MOTION to Intervene ; SEE ORDER re 50 Brief. (cmm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
NEW MEXICO CATTLE GROWERS’
ASSOCIATION; SPUR LAKE CATTLE
COMPANY; NELSON SHIRLEY,
individually; ALLEN CAMPBELL,
individually and HUMANE FARMING
ASSOCIATION,
Petitioners,
vs.
No. CIV 23-0150 JB/GBW
UNITED STATES FOREST SERVICE;
ANIMAL AND PLANT HEALTH
INSPECTION SERVICE; CAMILLE
HOWES, in her official capacity as Supervisor
of the Gila National Forest; TOM VILSACK,
in his official capacity as Secretary of the
United States Department of Agriculture;
RANDY MOORE, in his official capacity as
Chief of the U.S. Forest Service; MICHIKO
MARTIN, in her official capacity as
Southwestern Regional Forester; HENRY
PROVENCIO, in his official capacity as
District Ranger for the Wilderness Ranger
District, Gila National Forest; JANET
BUCKNALL, in her official capacity as
Deputy Administrator of the Animal and Plant
Health Inspection Service; and KEITH
WEHNER, in his official capacity as Western
Regional Director, Animal and Plant Health
Inspection Service,
Respondents,
CENTER FOR BIOLOGICAL DIVERSITY,
Respondent-Intervenor.
MEMORANDUM OPINION AND ORDER 1
THIS MATTER comes before the Court on: (i) the proposed-intervenor’s Motion to
Intervene, filed February 28, 2023 (Doc. 26)(“Motion to Intervene”); and (ii) the Petitioners’
Opening Brief on the Merits, filed August 31, 2023 (Doc. 50)(“Petitioners’ Merits Brief”). The
Court held hearings on May 22, 2023, see Clerk’s Minutes at 1, filed May 22, 2023
(Doc. 42)(“May 22, 2023, Hearing Minutes”), and on February 1, 2024, see Clerk’s Minutes at 1,
filed February 1, 2024 (Doc. 65)(“February 1, 2024, Meeting Minutes”). The primary issues are:
(i) whether the Court should allow proposed-intervenor Center for Biological Diversity
(“Biological Center”) to intervene in this lawsuit concerning the United States Forest Service
(“Forest Service”) and United States Animal Plant and Health Inspection Service’s February,
2023, operations in New Mexico’s Gila Wilderness involving the shooting of the forest’s wild
cows (“Gila Cows”) from a helicopter (“Aerial Shooting”), where the Biological Center and the
United States both support the Aerial Shooting; (ii) whether the Petitioners have standing to pursue
their claims, where the Petitioners are a cattle ranchers association, a private ranching company,
an individual cattle rancher, a campground owner, and an animal rights group; (iii) whether the
Respondents violate the terms of A Stipulation of Dismissal, filed June 30, 2022 (Doc. 39 in No.
CIV 22-0086-JB/CG (D.N.M.))(“June, 2022, Stipulation”), which requires seventy-five days of
notice before beginning the Aerial Shooting; (iv) whether the Respondents violate the National
Environmental Policy Act, 42 U.S.C. §§ 4321-4370, (“NEPA”), because the Forest Service did
On September, 28, 2023 the Court entered an Order granting the Motion to Intervene, filed
February 28, 2023 (Doc. 26). See Order at 1-11, filed September 28, 2023 (Doc. 57)(“Order”). In
the Order, the Court stated that it would “issue . . . a Memorandum Opinion at a later date more
fully detailing its rationale for this decision.” Order at 1 n.1. This Memorandum Opinion is the
promised opinion.
1
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not prepare an Environmental Assessment (“EA”) or an Environmental Impact Statement (“EIS”)
to evaluate the Aerial Shooting’s environmental effects; (v) whether the Respondents violate the
Administrative Procedure Act, 5 U.S.C. § 706 (“APA”), by exceeding their statutory authority in
conducting the Aerial Shooting, where other statutes limit helicopter use in Congressionally
designated wilderness areas, see Wilderness Act, 16 U.S.C. § 1133(c), and Forest Service
regulations require the Forest Service to impound “unauthorized livestock” before killing them,
36 C.F.R. § 262.10; and (vi) whether the Respondents violate the Forest Service’s impoundment
procedures in 36 C.F.R. § 262.10, and thus violate the APA -- by conducting an agency action that
is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” or
“without observance of procedure required by law, 5 U.S.C. § 706 -- where the targeted cows are
not raised for human use or pleasure. The Court concludes that: (i) the Biological Center may
intervene, because its interest in this case -- promotion and protection of the Gila Wilderness’
biological diversity -- may be impaired if it is not allowed to intervene and the government parties - the Forest Service and the Animal and Plant Health Inspection Service (“Animal Inspection
Service”) -- will not represent adequately the Biological Center’s interest; (ii) Petitioners New
Mexico Cattle Growers’ Association (“Cattle Growers”) and Spur Lake Cattle Company (“Spur
Lake”) have standing to pursue the First Cause of Action for Violation of Court Stipulation
(“Count I”), see Plaintiffs’ Complaint for Declaratory and Injunctive Relief ¶¶ 76-82, at 20-21,
filed February 21, 2023 (Doc. 1)(“Complaint”), because those three Petitioners are parties to the
June, 2022, Stipulation; (iii) Petitioners Nelson Shirley, Humane Farming Association (“Humane
Farming”), and Allen Campbell do not have standing to pursue Count I, because those two
Petitioners are not parties to the June, 2022, Stipulation; (iv) Petitioners Cattle Growers, Spur
Lake, Shirley, and Campbell have standing to pursue the Fourth Cause of Action for Failure to
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Prepare EA or EIS (APA and NEPA Violation), see Complaint ¶¶ 97-113, at 24-29, because the
Cattle Growers, Spur Lake, Shirley, and Campbell allege cognizable environmental injuries and
the organizational Petitioners’ injuries are germane to their organizational purposes; (v) Humane
Farming does not have standing to pursue Count IV, because its cognizable injuries are not
germane to its organizational purpose; (vi) all Petitioners have standing to pursue the Second
Cause of Action for Acting in Excess of Statutory Authority (APA Violation)(“Count II”), see
Complaint ¶¶ 83-88, at 21-23, and the Third Cause of Action for Acting in Violation of Regulation
(APA Violation)(“Count III”), see Complaint ¶¶ 89-96, at 23-24, because each Petitioner alleges
cognizable injuries that are within the relevant provisions’ zones-of-interests; (vii) the
Respondents do not violate the terms of the June, 2022, Stipulation, because they notified the
Cattle Growers, Spur Lake, and Shirley about the Aerial Shooting by November 22, 2022, which
is more than seventy-five days before the Aerial Shooting began; (viii) the Respondents do not
violate the NEPA, because the Aerial Shooting is excluded categorically from NEPA’s
requirements to prepare an EA or and EIS; (ix) the Aerial Shooting does not exceed the
Respondents’ statutory authority, because the Respondents are authorized to make rules and
regulations to preserve the Gila Wilderness; and (x) the Aerial Shooting does not violate Forest
Service’s impoundment regulations under 36 C.F.R. § 262.10, because the Gila Cows are not
unauthorized livestock.
FACTUAL BACKGROUND
The Court divides its factual background into three sections. First, the Court introduces
the parties. Second, the Court describes how the Respondents developed the Aerial Shooting.
Third, the Court discusses the Petitioners’ alleged injuries.
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1.
The Parties.
Petitioner Cattle Growers “is a member-driven organization with more than 1,200
members” that
has several objectives, including (a) to advance and protect the interests of the New
Mexico cattle industry; (b) solve problems facing the cattle industry; (c) promote
the well-being of the industry; (d) provide an official and united voice on issues of
importance to cattle ranchers, producers, and feeders; and (e) to create and maintain
a legal and regulatory environment that allows ranchers, producers, and feeders to
prosper economically.
Declaration of Loren Patterson ¶ 3, at 1 (dated February 21, 2023), filed August 31, 2023 (Doc. 501)(“Patterson Decl.”). With members in Grant and Catron Counties, the Cattle Growers “strongly
supports environmental policies that protect the environment and the wise use of natural resources,
including national forest areas such as the Gila Wilderness and the Gila River.” Patterson Decl.
¶¶ 3-4, at 1-2. Petitioner Spur Lake “is a cow, calf, and yearling operation” that “owns and/or
operates several ranches along the New Mexico and Arizona Border,” and has Forest Service
permits on three Ranger Districts in the Gila and Apache Sitgreaves National Forests. Declaration
of Nelson Shirley ¶ 2, at 1 (dated February 20, 2023), filed August 31, 2023 (Doc. 50-2)(“Shirley
Decl.”). Petitioner Nelson Shirley owns and operates Spur Lake, manages a ranch that shares an
eleven-mile border with the Gila Wilderness, has a grazing permit in the Gila Forest, and is a Cattle
Growers member. See Shirley Decl. ¶¶ 2-4, at 1. Petitioner Allen Campbell owns and operates
the Gila Hot Springs Campground, which “provides tourists, hikers, campers, and many other
people who enjoy nature and the outdoors, with a place to sleep, eat, and rest before, during, and
after their recreational activities in the Gila Wilderness.” Declaration of Allen Campbell ¶ 2, at 1
(dated February 20, 2023), filed August 31, 2023 (Doc. 50-3)(“Campbell Decl.”). Petitioner
Humane Farming “is a registered, non-profit organization headquartered in San Rafael,
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California,” whose “280,000 members and supporters, including those living in New Mexico,
work to protect farmed animals through their support of groundbreaking legislation, anti-cruelty
investigations, legal action, and direct care for abused animals.” Declaration of Bradley Miller ¶ 4,
at 1 (dated August 29, 2023), filed August 31, 2023 (Doc. 50-5)(“Miller Decl.”). Humane Farming
also owns and operates the Suwanna Ranch, which is “the world’s largest farmed animal refuge
[that] provides more than seven square miles of land for rescued victims of animal cruelty from
various states, primarily in the Western region of the United States.” Miller Decl. ¶ 4, at 1-2.
Respondent Forest Service “is an agency of the U.S. Department of Agriculture that
administers the Nation’s national forests and grasslands” and “issued the Decision Memo
authorizing the aerial shooting of cattle beginning on February 23, 2023.” Complaint ¶ 12, at 6.
Respondent Animal Inspection Service “is an agency of the U.S. Department of Agriculture that
purports to, among other things, protect the health of U.S. agriculture and natural resources against
invasive pests and diseases, regulate[] genetically engineered crops, [and] administer[] the Animal
Welfare Act[, 7 U.S.C. §§ 1231-2160].” Complaint ¶ 13, at 6. The Animal Inspection Service
“has been directed by the USFS to carry out the Aerial Shooting.” Complaint ¶ 13, at 6.
Respondent Camille Howes “is the Forest Supervisor for the Gila National Forest and an employee
of the United States Forest Service,” and she “is responsible for issuing the applicable agency
decision at issue in this lawsuit.” Complaint ¶ 14, at 6. Respondent Tom Vilsack is the Secretary
of the United States Department of Agriculture, and, “[i]n that capacity, he oversees the” Forest
Service and Animal Inspection Service. Complaint ¶ 15, at 6. Respondent Michiko Martin is the
Forest Service Regional Forester for the Southwest Region, who “oversees the activities on the
Gila National Forest, including in the Wilderness District.” Complaint ¶ 16, at 6. Respondent
Henry Provencio is the District Ranger for the Wilderness Ranger District, where the Aerial
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Shooting took place. See Complaint ¶ 17, at 6. Respondent Janet Bucknall is the Administrator
of the Animal Inspection Service, and Respondent Keith Wehner is the Western Regional
Administrator of the Animal Inspection Service. See Complaint ¶¶ 18-19, at 6-7. Respondents
Howes, Vilsack, Martin, Provencio, Bucknall, and Wehner are each sued in their official
capacities. See Complaint ¶¶ 14-19, at 6-7.
Proposed respondent-intervenor Biological Center “is a non-profit 501(c)(3) publicinterest, conservation organization with more than 1.7 million members and online activists, based
in Tucson, Arizona, and dedicated to the protection of endangered species and wild places.”
Declaration of Todd Schulke ¶ 4, at 2 (dated February 27, 2023), filed February 28, 2023 (Doc. 261)(“Schulke Decl.”). Founded in Silver City, New Mexico, in 1989 and originally called the
Greater Gila Biodiversity Project, see Schulke Decl. ¶¶ 3,5, at 2, the Biological Center “work[s]
to secure a future for all species, great and small, hovering on the brink of extinction” through
“science, law and creative media, with a focus on protecting the lands, waters and climate that
species need to survive,” Schulke Decl. ¶ 4, at 1. “The [Biological] Center is actively involved in
species and habitat protection and, as of December 2022, has 84,324 members including 1,473
members in New Mexico.” Motion to Intervene at 2-3, filed February 28, 2023 (Doc. 26)(“Motion
to Intervene”).
2.
The Aerial Shooting.
The Court first describes the Gila Cows’ history in the Gila Wilderness and the Forest
Service’s efforts to remove the Gila Cows over the last several decades before the Aerial Shooting.
Second, the Court summarizes prior litigation related to the Forest Service’s efforts to remove the
Gila Cows. Third, the Court details the Aerial Shooting’s scoping process. Fourth, the Court
describes the Forest Service’s final decision and supporting materials related to the Aerial
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Shooting. Fifth, the Court summarizes the Animal Inspection Service’s involvement in the Aerial
Shooting.
a.
The Gila Wilderness and the Gila Cows.
Comprising approximately 560,000 acres within New Mexico’s Gila National Forest, the
Gila Wilderness traces its official roots back to June 3, 1924, when Aldo Leopold, a Forest Service
employee, encouraged the Forest Service to make the area the nation’s first designated wilderness
in the National Forest System. See U.S. Forest Service, History of the Gila Wilderness, available
at https://www.fs.usda.gov/detail/gila/learning/history-culture/?cid=stelprdb5038907 (last visited
October 2, 2024)(“Gila Wilderness History”). In 1964, President Lyndon B. Johnson signed the
Wilderness Act, 16 U.S.C. §§ 1131-36, into law and established the Gila Wilderness as a federally
designated wilderness area. See National Park Service, Gila Wilderness History: Law and Policy,
available at https://www.nps.gov/subjects/wilderness/law-and-policy.htm (last visited October 2,
2024). The Wilderness Act establishes a National Wilderness Preservation System, which:
shall be administered for the use and enjoyment of the American people in such
manner as will leave them unimpaired for future use and enjoyment as wilderness,
and so as to provide for the protection of these areas, the preservation of their
wilderness character, and for the gathering and dissemination of information
regarding their use and enjoyment as wilderness.
16 U.S.C. § 1131(a). Defining “wilderness,” the Wilderness Act provides:
A wilderness, in contrast with those areas where man and his own works
dominate the landscape, is hereby recognized as an area where the earth and its
community of life are untrammeled by man, where man himself is a visitor who
does not remain. An area of wilderness is further defined to mean in this Act an
area of undeveloped Federal land retaining its primeval character and influence,
without permanent improvements or human habitation, which is protected and
managed so as to preserve its natural conditions and which (1) generally appears to
have been affected primarily by the forces of nature, with the imprint of man’s work
substantially unnoticeable; (2) has outstanding opportunities for solitude or a
primitive and unconfined type of recreation; (3) has at least five thousand acres of
land or is of sufficient size as to make practicable its preservation and use in an
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unimpaired condition; and (4) may also contain ecological, geological, or other
features of scientific, educational, scenic, or historical value.
16 U.S.C. § 1131(c).
In the mid-1970s, a grazing permittee 2 abandoned his cattle on a plot of land -- the
Redstone Allotment -- in the Gila Wilderness. See Gila National Forest Wilderness Ranger
District, U.S. Forest Service Decision Memo: Gila Wilderness Feral Cattle Removal at 1 (dated
February 16, 2023)(AR 3 005899)(“Decision Memo.”); Gila National Forest, U.S. Forest Service,
Gila Wilderness Livestock Removal at 1 (dated November, 2022)(AR 004262)(“November, 2022,
Fact Sheet”). The Redstone Allotment lies at the northern edge of the Silver City Ranger District,
along the border of the Wilderness Ranger District:
“Grazing permitees [sic] are individuals or organizations who have acquired the privilege
to graze livestock on National Forest or National Grasslands. The USDA Forest Service supports
livestock grazing on National Forest System lands. We believe that grazing on these lands, if
responsibly done, provides a valuable resource to the livestock owners, as well as the American
people.”
U.S.
Forest
Service,
Resource
Management,
available
at
https://www.fs.usda.gov/resources/gila/landmanagement/resourcemanagement
(last
visited
October 2, 2024).
2
“AR” denotes citations to the Administrative Records, which the Respondents lodged on
July 14, 2023. See Federal Respondents’ Notice of Lodging Administrative Records, filed July
14, 2023 (Doc. 44).
3
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Gila National Forest Grazing Allotment Map, U.S. Forest Service, available at
https://www.fs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb5035820.pdf (last visited October
2, 2024).
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Silver City Ranger District Map with Range Allotments, U.S. Forest Service, available at
https://www.fs.usda.gov/Internet/FSE_DOCUMENTS/fseprd952855.pdf (last visited October 2,
2024). The abandoned cows “have not been husbanded, cared for by private owners, or kept or
raised on a ranch for several generations, and are thus not domesticated.” Decision Memo. at 1
(AR 005899). In the 1990s, the Gila Forest issued a new grazing permit on the Redstone Allotment
to manage the abandoned cows’ progeny. See Decision Memo. at 1 (AR 005899). In 1996, after
the Forest Service suspended his grazing permit, the new permittee removed several hundred cattle
from the Gila Wilderness. By 1998, “even after those efforts, a population of cattle remained and
were left unclaimed, roaming freely in the Wilderness.” Decision Memo. at 1 (AR 005899).
b.
Prior Relevant Litigation.
In February, 2022, the Forest Service contracted the Animal Inspection Service to remove
the Gila Cows with “a sharpshooter in a hovering helicopter.” Federal Respondents’ Response
Brief on the Merits at 1, filed October 19, 2023 (Doc. 58)(“Respondents’ Merits Response”). The
Cattle Growers, New Mexico Federal Lands Council, Spur Lake, and Double Spring Ranch, LLC
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(“2022 Litigation Petitioners”) filed a lawsuit and moved for a temporary restraining order and a
preliminary injunction to stop the February, 2022 shoot. See New Mexico Cattle Growers’
Association v. Vilsack, No. CIV 22-0086-JB/CG (D.N.M.), Plaintiffs’ Motion for Temporary
Restraining Order and Preliminary Injunction, filed February 9, 2022 (Doc. 7)(“First TRO
Motion”). The Court denied the First TRO Motion, see Order at 1, filed February 23, 2022
(Doc. 15 in No. CIV 22-0086-JB/CG (D.N.M.)), and Animal Inspection Service shot and killed
sixty-five Gila Cows during several flights over the Gila Wilderness (“February, 2022, Aerial
Shooting”). See Email from Kraig Glazer to Jeffrey Shearer, Re: Monday check-in at Gila NF
officer at 1 (dated February 14, 2022)(AR 003985). The June, 2022, Stipulation”), agrees that
“any [] aerial lethal removal operations on or before March 1, 2024 would be preceded by at least
75 days’ notice to the Petitioners and also to the public.” June, 2022, Stipulation at 1.
c.
The February, 2023, Aerial Shooting Scoping Period.
After the June, 2022, Stipulation, the Forest Service begins planning another shoot in the
Gila Wilderness. During this planning process, the Forest Service notifies the public about the
agency’s plan and receives comments about that plan.
The Court first discusses the Forest
Service’s public notice process. Next, the Court describes some of the public comments.
i.
The Scoping Letter.
Despite the June, 2022, Stipulation’s indication that “[n]o further operations are planned,”
June, 2022, Stipulation at 1, between November 17-22, 2022, the Forest Service disseminates a
scoping 4 letter to the public and to the 2022 Litigation Petitioners that details plans for a similar
4
43 C.F.R. § 46.235 provides:
Scoping is a process that continues throughout the planning and early stages
of preparation of an environmental impact statement. Scoping is required for an
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shooting operation in February, 2023.
See Declaration of Camille Howes ¶¶ 13-14 at 4-5
(executed February 22, 2023), filed February 22, 2023 (Doc. 17)(“First Howes Decl.”); Letter
from Camille Howes to Karen Budd-Falen, cc’d Andrew Smith, Emma Hamilton, Sean Duffy, at
1 (dated November 22, 2022)(AR 004350)(“Petitioners Notification Letter”); November 17, 2022
Scoping Letter at 1-3 (AR 004288-90)(“Scoping Letter”). Providing context for the second
shooting, the Forest Service states: “From 1998 to [November, 2022], the [Gila] Forest has issued
nine gather contracts that resulted in the removal of an additional 211 cattle,” Scoping Letter at 1
(AR 004288), which cost the Gila National Forest approximately $335,000 compared to the
approximately $35,000 February, 2022 aerial shooting contract with the Animal Inspection
Service. Gila National Forest, U.S. Forest Service, Gila Wilderness Livestock Removal Fact Sheet
at 1 (AR 004262)(“Fact Sheet”). Only one branded cow was captured pursuant to the Forest
Service’s removal efforts during the previous several decades, November, 2022, Scoping Letter at
1 (AR 004288), and, as of November, 2022, there were “no active allotments in the Gila
environmental impact statement; scoping may be helpful during preparation of an
environmental assessment, but is not required (see paragraph 46.305(a) Public
involvement in the environmental assessment process). For an environmental
impact statement, bureaus must use scoping to engage State, local and tribal
governments and the public in the early identification of concerns, potential
impacts, relevant effects of past actions and possible alternative actions. Scoping is
an opportunity to introduce and explain the interdisciplinary approach and solicit
information as to additional disciplines that should be included. Scoping also
provides an opportunity to bring agencies and applicants together to lay the
groundwork for setting time limits, expediting reviews where possible, integrating
other environmental reviews, and identifying any major obstacles that could delay
the process.
43 C.F.R. §46.235.
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Wilderness on the Wilderness Ranger District where [the Gila Cows] are located,” Fact Sheet at 1
(AR 004262).
The November, 2022, Scoping Letter describes a “proposed action” using “a combination
of lethal and non-lethal methods to remove the remaining population unbranded and unauthorized
cattle from the Gila Wilderness,” during which the Forest Service “would work with a private
contractor to gather . . . and herd [the Gila Cows] to a corral located outside the
wilderness . . . [where] the cattle would be inspected by a livestock brand inspector and delivered
to the livestock auction in Belen, New Mexico.” Scoping Letter at 2 (AR 004289).
The
November, 2022, Scoping Letter further provides:
Based on experience, it should be noted that during attempts to remove
cattle alive, a number[5] of cattle often need to be humanely euthanized before
removal due to stress and injury sustained during gathering efforts. Cattle are
herded using helicopter and riders on horseback with dogs. Some aggressive
animals may be partially sedated. During lethal removal efforts, the Forest would
work with USDA APHIS to conduct aerial shooting of cattle from a helicopter and
shooting from the ground, very similar to operations conducted earlier in 2022.
November, 2022, Scoping Letter at 2 (AR 004289). The Forest Service identifies “several
measures [that] would be implemented to address public safety and other considerations,”
including posting a public notice in accordance with Forest Service regulations
(36 C.F.R § 262.10) requesting that individuals should remove their livestock 6 that may have
The Forest Service estimates that fifty percent of these captured cattle “had to be
euthanized before they could be herded or led out of the wilderness.” November, 2022, Scoping
Letter at 1 (AR 004288).
5
Despite requesting that individuals remove their wandering livestock, the Forest Service
notes: “No grazing is authorized within the area identified for the proposed action.” November,
2022, Scoping Letter at 2.
6
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wandered into the project area, 7 closing the project area during the proposed action, removing any
carcasses left “within or adjacent to any waterbody or spring,” and completing and approving a
“minimum requirements decision guide . . . before using any methods otherwise prohibited under
the 1964 Wilderness Act” before commencing the proposed action. November, 2022, Scoping
Letter at 2 (AR 004289).
To justify the proposed action, the Forest Service asserts that the Gila Cows cause
“resource damage, especially to riparian areas,” 8 that “Forest staff have documented occurrences
of over-grazing and stream bank tramping (and subsequent erosion),” and that the Gila Cows “have
negatively impacted fish and wildlife habitats including habitats for several federally threatened
The Forest Service identifies the project area as “the general area bounded by the
confluence of the Gila River and Turkey Creek, upstream along the Gila River to Alum Mountain,
west to Miller Spring Cabin. And continuing west down the Turkey Creek drainage to the
confluence with the Gila River.” November, 2022, Scoping Letter at 1 (AR 004288). The
November 2022, Scoping Letter also provides a map that identifies the “Cattle Removal Area”
with a bright red line. November, 2022, Scoping Letter at 4 (AR 004291).
7
8
The United States Fish & Wildlife Service Glossary provides:
Riparian areas are plant communities contiguous to and affected by surface and
subsurface hydrologic features of perennial or intermittent lotic and lentic water
bodies (rivers, streams, lakes, or drainage ways). Riparian areas are usually
transitional between wetland and upland. Riparian areas have one or both of the
following characteristics:
1. distinctly different vegetative species than adjacent areas.
2. species similar to adjacent areas but exhibiting more vigorous or robust
growth forms.
Riparian, U.S. Fish & Wildlife Service, available at https://www.fws.gov/glossary/riparian (last
visited October 4, 2024). While lotic systems are “[a]quatic systems that consist of flowing fresh
water,” lentic systems are “[s]tanding freshwater systems.” Lentic v. Lotic: Aquatic Systems in
the Park, U.S. National Park Service, available at https://www.nps.gov/blri/learn/nature/lenticlotic.htm (last visited October 4, 2024).
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and endangered species.” Scoping Letter at 1-2 (AR 004288-89). The Forest Service identifies
three desired outcomes for the proposed action:
1.
Protect the habitat of aquatic and terrestrial wildlife, especially within riparian
areas where resource degradation is occurring, to comply with the Endangered
Species Act [of 1973, 16 U.S.C. §§ 1531-44] and the 1986 Forest Plan[9]
standards related to threatened and endangered wildlife habitat;
Pursuant to 36 C.F.R. § 219, Gila National Forest is revising the 1986 Forest Plan, and, in
July 2024, it published a final draft, which describes the role of the Gila National Forest’s Forest
Plan and its revision process:
9
There are three levels of planning for National Forest System lands. The
first and broadest level of planning occurs at the national level through the United
Stated Department of Agriculture Forest Service Strategic Plan. This is a 5-year
plan that allows public transparency of the agency’s goals, objectives, and
accomplishments.
The second level of planning occurs at the level of the national forest and
grassland administrative units through forest plans. Every national forest and
grassland is required to have a forest plan by the National Forest Management Act
of 1976, consistent with the provisions in the Act, the most current planning
regulations, and agency policy direction. The Regional Forester approved the
original Gila National Forest Plan in 1986. The 1986 plan was written following
the guidance in the 1982 forest planning regulations and was amended 11 times to
adjust for situations in specific projects or to reflect changes in economic, social,
and ecological conditions, scientific information, and agency and public
understanding. This plan revision follows the 2012 Planning Rule (36 Code of
Federal Regulations [CFR] 219) and the associated 2015 agency directives (Forest
Service Manual 1920 and Forest Service Handbook 1909.12).
This forest plan contains information and guidance for the third level of
planning and decision making, which occurs at the project or activity level. All
projects and activities must be consistent with the forest plan. With the direction
laid out in this plan, it is anticipated that management can better adapt to changing
conditions and achieve the vision for the Gila National Forest. It does not compel
any agency action or guarantee specific outcomes. It does not list specific projects
or prioritize the program of work, although it can inform priorities based on the
direction it provides. An accompanying monitoring plan provides the feedback
necessary to evaluate management effectiveness and identify future needs to
change plan direction.
A forest plan guides and constrains Forest Service personnel, not the public.
Any constraint on the public must be imposed by law, regulation, or through an
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2.
Protect stream banks and spring areas from further trampling, erosion and
sedimentation to comply with the Clean Water Act[, 33 U.S.C. §§ 1151, 12511387,] and the 1986 Forest Plan standards related to riparian areas;
3.
Restore the wilderness character of the Gila Wilderness by removing non-native
species and alleviating the damage caused by over-grazing to comply with the
Wilderness Act and the 1986 Forest Plan management direction related to the
wilderness.
November, 2022, Scoping Letter at 2 (AR 004289).
Finally, the Forest Service requests
“comments and ideas on this proposal,” noting that “[t]he information you provide during this
scoping period will also help determine extraordinary circumstances that would preclude
excluding categorically the project from documentation in an environmental assessment or
environmental impact statement.” November, 2022, Scoping Letter at 3 (AR 004290).
i.
The Scoping Comments.
Between November, 2022, and February, 2023, the public did what it was told to do: it
provided “comments and ideas” on the aerial shooting proposal. November, 2022, Scoping Letter
at 3 (AR 004290). The Cattle Growers and Petitioner Nelson Shirley, on behalf of himself and
Spur Cattle (together, the “Commenting Petitioners”), 10 opposed the aerial shooting and submitted
lengthy comments with arguments much like those that the Petitioners’ Merits Brief offers. These
order issued under 36 CFR part 261, subpart B. In addition to forest plans,
management of National Forest System lands is guided and constrained by laws,
regulations, and the policies, practices, and procedures that are in the Forest Service
Directive System, which are not required to be repeated in the forest plan.
Gila National Forest: Land Management Plan at 1, U.S. Forest Service, available at
https://www.fs.usda.gov/Internet/FSE_DOCUMENTS/fseprd1194081.pdf (last visited
October 9, 2024)(brackets in original).
Petitioners Allen Campbell and Humane Farming Association (“HFA”) did not submit
any comments, nor did any of HFA’s members.
10
- 17 -
scoping comments, which largely mirror each other, establish their writers’ “strong opposition to
shooting cattle, either from a helicopter or on the ground,” and allege “that the Forest Service is
not only precluded by law from engaging in such a practice, but also that doing so would be
arbitrary and capricious.” Letter from Loren Patterson to Gila National Forest, cc’d Anthony
Romero, Belinda Garland, Re: Gila Wilderness Feral Cattle Removal at 1 (dated January 5,
2023)(AR 005245)(“Cattle Growers Comments”); Letter from Nelson Shirley to Gila National
Forest,
Re:
Gila
Wilderness
Feral
Cattle
Removal
at
1
(dated
January
9,
2023)(AR 005316)(“Shirley Comments”).
(1)
The Commenting Petitioners Allege That the Aerial
Shooting Is Unlawful and Inhumane.
The Commenting Petitioners assert that the aerial shooting proposal is unlawful and
inhumane. See Cattle Growers Comments at 2-3 (AR 005246-27); Shirley Comments at 2-3
(AR 005317-18). The Commenting Petitioners allege that aerial shooting proposal is unlawful
because it violates Forest Service regulations by failing to first impound the Gila Cows, identify
their owners, if any, and try to sell them before killing them. See Cattle Growers Comments at 2
(AR 005246); Shirley Comments at 2 (AR 005317). The Commenting Petitioners also allege that
the Forest Service fails to comply with NEPA because the scoping letter does not identify a
categorical exclusion (“CE”) on which the Forest Service intends to rely if it chooses to not
produce an EA or an EIS. See Cattle Growers Comments at 2-3 (AR 005246-27); Shirley
Comments at 2-3 (AR 005317-18). The Commenting Petitioners also allege that the Aerial
Shooting violates the Clean Water Act, because the Gila Cows’ rotting carcasses will contaminate
the Gila Wilderness’ waterways. See Cattle Growers Comments at 8 (AR 004991); Shirley
Comments at 9 (AR 005324).
- 18 -
To support their assertion regarding the aerial shooting proposal’s cruelness, the
Commenting Petitioners attach the New Mexico Livestock Board’s Decision and Findings of Fact
relating to the aerial shooting proposal. See Aerial Gunning of Cattle in the Gila National Forest:
Decision and Findings of Fact at 1-3 (dated January 3, 2023)(AR 005266-68)(“New Mexico
Livestock Board Decision”). 11 The New Mexico Livestock Board Decision concludes that the
February, 2022 Aerial Shooting is “NOT in accordance with commonly accepted agricultural
animal husbandry practices and [the February, 2022, Aerial Shooting] constitutes acts of animal
cruelty.” New Mexico Livestock Board Decision at 1 (AR 005266). At a December 13, 2022,
New Mexico Livestock Board open hearing -- held pursuant to N.M.S.A. § 30-18-1(J) -- Shawn
Davis and Justin Gray, New Mexico Livestock Board employees and certified law enforcement
officers, testified that they examined several gunned-down Gila Cow in the days after the February,
2022, Aerial Shooting and opined that the animals suffered inhumane deaths. See New Mexico
Livestock Board Decision at 2 (AR 005267). Specifically, Gray and Davis found: (i) two dead
bulls in the Gila River, one with a broken hind leg, who both appeared to have been shot multiples
times; and (ii) other Gila Cows who had multiple wounds in the head, neck, back, and sides. See
New Mexico Livestock Board Decision at 2 (AR 005267). Davis also said that “federal employees
knowledgeable of the matter” told him that the two dead bulls were not shot near waterways and
that, in his professional opinion, the bulls “sought low ground of the waterway,” implying that the
wounded animals ran to the river to escape the gunfire. New Mexico Livestock Board Decision
at 2 (AR 005267). Both Davis and Gray testified that they believe the animals they examined “did
While both the Cattle Growers’ Comments and Shirley Comments attach the New Mexico
Livestock Board Decision, the Court cites only to the Cattle Growers Comments’ attachment. The
analogous Shirley Comments attachment is found at AR 005338-40.
11
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not die a good death.” New Mexico Livestock Board Decision at 2 (AR 005267). Dr. Alexandra
Eckhoff, DVM, 12 also testified regarding the American Veterinary Medical Association guidelines
for euthanizing livestock and advised that any approach should strive to achieve instantaneous
death and avoid negative added stress. See New Mexico Livestock Board Decision at 2-3
(AR 005267-68). “After hearing the testimony of the three witnesses and reviewing the evidence,
the Board of the NMLB deliberated in public and reached a unanimous decision” that the February,
2022, Aerial Shooting “was contrary to commonly accepted agricultural animal husbandry
practices and thus in violation of [N.M.S.A.] § 30-18-1 (J), constituting Cruelty to Animals.”
AR 005268; AR 005340. Citing the New Mexico Livestock Board Decision, the Commenting
Petitioners allege that Gila Cows “were found with their legs shot off and several wandered into
waterways where they died, indicating that the cattle were subject to prolonged suffering,”
although it is unclear whether the Gila Cows allegedly “found with their legs shot off” are the same
cows that Davis and Gray observed, or if Shirley or another NMCGA member observed those Gila
Cows. Cattle Growers Comments at 4 (AR 005248); Shirley Comments at 4 (AR 005319). The
Commenting Petitioners also provide a photograph of two dead Gila Cows -- neither of whom
appear to be missing legs -- in the Gila River, and allege: “Calves were orphaned when APHIS
shot their mothers, leaving the calves to die from predators or starvation.” Cattle Growers
Comments at 4 (AR 005248); Shirley Comments at 4-5 (AR 005319-20).
“A Doctor of Veterinary Medicine (DVM) is a highly educated medical professional who
is licensed to practice veterinary medicine. Doctor of Veterinary Medicine, Purdue University
College of Veterinary Medicine, available at https://www.vet.purdue.edu/dvm/ (last visited
October 9, 2024).
12
- 20 -
(2)
The Commenting Petitioners Allege That the Aerial
Shooting Injures Them.
Regarding their alleged injuries, the Commenting Petitioners allege that the aerial shooting
proposal threatens to “inadvertently kill[]” their cattle and “deprives [them] of an opportunity to
purchase [] cattle” because the Forest Service must first impound stray cattle and offer them for
public sale before killing them. Cattle Growers Comments at 4-5 (AR 005248-49); Shirley
Comments at 5-6 (AR 005320-21). The Commenting Petitioners also allege that leaving the Gila
Cow carcasses to rot may damage riparian areas and habituate wolves, including the endangered
Mexican gray wolf, 13 to feed on livestock. See Cattle Growers Comments at 5, 9 (AR 005249;
AR 005253); Shirley Comments at 6, 10 (AR 005321; AR 005325). Shirley asserts that: (i) he
“suffered distress from viewing and learning about the dead cattle and will suffer distress if more
cattle are shot and left to die”; (ii) he “personally viewed cattle that had been shot during the 2022
aerial operations -- cattle that suffered and were left to bleed out and die”; and (iii) “[g]iven the
ties I have with the cattle and proximity of my allotment to the lands upon which the cattle live,
this distress is distinct from that suffered by the public at large.” Shirley Comments at 5
(AR 005320). The Cattle Growers similarly assert that their members suffer the same distress of
viewing and learning about the dead Gila Cows, and that their members’ ties with the animals and
the lands upon which the animals live renders that distress “distinct from that suffered by the public
at large.”
Cattle Growers Comments at 5 (AR 005249).
To drive home their point, the
The Mexican gray wolf is “the rarest subspecies of gray wolf in North America” that
“Was all but eliminated from the wild by the 1970s.” U.S. Fish & Wildlife Service, Conserving
the Mexican Wolf, available at https://www.fws.gov/program/conserving-mexican-wolf (last
visited October 15, 2024)(“Mexican Gray Wolf Background”). In the late 1970s, the U.S. Fish
and Wildlife Service initiated a conservation effort, which is still active today. See Mexican Gray
Wolf Background.
13
- 21 -
Commenting Petitioners note that the aerial shooting proposal “would lead to more carnivorelivestock conflict.”
Cattle Growers Comments at 5 (AR 005249); Shirley Comments at 5
(AR 005320). Shirley alleges that, two days after the February, 2022, shooting, he spoke with a
United States Fish & Wildlife Service Interagency Field Team leader, John Oakleaf, who identified
one wolf within half a mile of a dead Gila Cow. See AR 005321. Shirley also asserts that Oakleaf
“confirmed that the [] pack has grown substantially over the past year in this area,” and that, in
Shirley’s opinion, the “huge amount of beef left to rot and to be scavenged” causes this increase.
AR 005322.
(3)
The Commenting Petitioners Propose Alternative Ways
of Removing the Gila Cows.
In addition to identifying the aerial shooting proposal’s alleged legal violations and their
resulting injuries, the Commenting Petitioners propose alternative solutions to the Gila Cow
problem. See Cattle Growers Comments at 1 (AR 005245); Shirley Comments at 2 (AR 005316).
In the short term,
the Forest Service should repair corrals and traps it has allowed to deteriorate;
authorize neighboring permittees (who may have cattle interspersed with the
unbranded cattle) to gather the cattle on the vacant allotments to those corrals and
traps, feed, water and salt the cattle to acclimate them to those facilities before
moving them out of the Wilderness; move them slowly to a road whether they can
be trailered out; and, subject to New Mexico Livestock Board (“NMLB”)
inspection, returned to the owner if branded or marked or otherwise sold at a fixed,
pre-set price to the cowboys who gathered them.
Cattle Growers Comments at 1 (AR 005245); Shirley Comments at 2 (AR 005316). In the long
term, “the Forest Service should reactivate vacant grazing allotments with sustainable stocking
rates so that ranchers are on the ground managing the allotments and removing unauthorized cattle
from them.” Cattle Growers Comments at 1 (AR 005245); Shirley Comments at 2 (AR 005316).
This proposal is similar to one raised at a November 15, 2022, meeting among Forest Service
- 22 -
employees (Camille Howes, Henry Provencio, Jeff Shearer, and Anthony Madrid), grazing
permittees (Nelson Shirley and Tom Paterson), New Mexico Livestock Board representatives
(Shawn Davis, Belinda Garland, Molly Manzanares), and Loren Patterson, the Cattle Growers’
president. See Memorandum for Record -- Meeting Notes, Gila National Forest Supervisor’s
Office, at 1-2 (dated November 29, 2022)(AR 004285-86)(“November 15, 2022 Meeting Notes”).
Based on Shearer’s November 29, 2022 notes memorializing the meeting, Shirley and Paterson
“felt that [their proposal] would be a long-term effort to removing cattle and would take multiple
years,” and Provencio asked Nelson and Paterson to “write up the details of their proposed
alternative and submit it for consideration when the Gila National Forest requests public feedback
during the scoping period.” November 15, 2022 Meeting Notes at 1-2 (AR 004285-86). The
Forest Service did not respond to either Commenting Petitioners when they requested feedback on
their comments. See Email from Taylor Riggins to Gila National Forest, Re: NMCGA: Inquiry
regarding status of scoping comments (dated January 26, 2023)(AR 005543-45); Email from
Nelson Shirley to Gila National Forest, Re: Spur Lake Cattle Co.; comments inquiry (dated
January 27, 2023)(AR 005546-47).
(4)
The Biological Center Submits Comments Supporting
the Aerial Shooting.
The Biological Center, proposed intervenor in this lawsuit, also submitted comments in
support of the Aerial Shooting. See Email from Todd Schulke to FS-comments-southwestern-Gila
Re: Gila Wilderness Feral Cow Removal at 1-8 (dated January 9, 2023)(AR 00530411)(“Biological Center Comments”). The Biological Center Comments urge the Forest Service to
conduct the Aerial Shooting, because the Gila Cows’ presence threatens the Gila Wilderness’
- 23 -
wilderness character and environmental integrity. See Biological Center Comments at 1. To
support their contention that the Gila Cows threaten the environment, the Biological Center states:
Several years of ecological monitoring with photo documentation have
shown significant and long-lasting damage caused by the feral cows in the Gila
Wilderness, including trampling, denuding vegetation, and feces and urine in the
water, particularly where cattle have concentrated near water sources such as the
Gila River and springs. Monitoring reports, showing extreme damage, from 2017,
‘18, ‘19, ‘21, ‘22 have been made available to the Gila National Forest (GNF).
Biological Center Comments at 1. The Biological Center Comments also discuss how the Aerial
Shooting is not likely to disrupt the Gila Wilderness’ ecology, because: (i) “[e]xtensive surveys
were done 60-90 days after the” February, 2022, Aerial Shooting and no carcasses were found;
(ii) “the electronic wolf tracking program showed no influx of wolves into the [project] area and
post-operation ecological monitoring did not detect an unusual number of black bears or other
carnivores in the [project] area” after the February, 2022, Aerial Shooting; and (iii) the two Gila
Cows who died in the Gila River during the February, 2022, Aerial Shooting were “promptly
removed.” Biological Center Comments at 7. On February 1, 2023, pursuant to Forest Service
regulation 36 C.F.R. § 262.10, a public impound notice alerting the public and permittees to
remove their livestock from the project area was signed and mailed to all Gila National Forest
grazing permittees, and posted in a local newspaper, at local courthouses and post offices, and on
the Gila National Forest public website. See Decision Memo. at 7 (AR 005906).
d.
The February, 2023, Aerial Shooting Decision Memorandum.
On February 16, 2023, the Forest Service finalizes a decision memorandum that outlines
the Aerial Shooting’s substance, motivation, and legality.
See Decision Memo. at 1-17
(AR 005899-915). The Forest Service also includes, as an appendix, detailed responses to thirdparty comments raised during the scoping process. See U.S. Forest Service, Decision Memo: Gila
- 24 -
Wilderness Feral Cattle Removal -- Appendix B at 1-17 (AR 00005917-33)(“Scoping
Responses”).
i.
The Aerial Shooting’s Substance.
The Decision Memo. indicates that the Gila Cows may be removed “utilizing a
combination of lethal and non-lethal methods.” Decision Memo. at 5 (AR 005903). The Decision
Memo. states that lethal removal includes both “aerial and ground-based operations,” and the aerial
operation is “expected to take place over one or more 7-day periods annually until objectives are
met.” Decision Memo. at 6 (AR 005904). The Decision Memo. also states: “All lethally removed
or euthanized cattle would be left on site to naturally decompose, unless within or adjacent to a
waterbody, designated hiking trail, or culturally sensitive location.” 14 Decision Memo. at 6
(AR 005904). The Forest Service also notes that a “wilderness minimum requirements analysis
has been completed and approved allowing for the treatments including the low-level helicopter
flights.” Decision Memo. at 6 (AR 005904). To remove the Gila Cows non-lethally, the Forest
Service states that they “may work with private contractors or individuals” to gather and impound
the Gila Cows as the Forest Service regulations, see 36 C.F.R. § 262.10-- i.e., the Forest Service
would impound the animals, a livestock brand inspector would inspect them, and the Forest
14
The Decision Memo describes this scenario:
Cattle would not be intentionally killed within or immediately adjacent to
any waterbody, designated hiking trail, or known culturally sensitive area. If a
carcass is identified within or immediately adjacent to one of these areas, Forest
staff will move the carcass away from that location to a great enough distance that
the carcass is no longer a concern. During any aerial removal operations, APHIS
will aerially survey the waterways at the end of each day to inspect for carcasses in
the water.
Decision Memo. at 8 (AR 005906).
- 25 -
Service would deliver unbranded animals to an auction facility, Decision Memo. at 6 (AR 005904).
Ahead of the Aerial Shooting, the Forest Service estimates that “50 to 150 feral cattle remain” in
the Gila Wilderness. Decision Memo. at 2 (AR 005900).
In addition to removing Gila Cow carcasses adjacent to waterways, hiking trails, or
culturally sensitive areas, the Forest Service identifies several other actions intended to mitigate
the Aerial Shooting’s potential environmental, economic, and social impacts. See Decision Memo.
at 8 (AR 005906). To protect wildlife, flood plains, and wilderness character: (i) the Forest Service
will not construct any corrals or temporary gather structures within critical habitats, flood plains,
or designated critical habitat; (ii) aerial operations will not take place within one-half mile of
known Mexican spotted owl protected activity centers (“PACs”) 15 between March 1st and
September 30th; and (iii) ground operations will not take place within one mile of any known
A Mexican spotted owl protected activity center (PAC) is an area where Mexican spotted
owls are known to roost and nest, and disruptive activities, like timber harvesting, are limited. See
Joseph L. Ganey, James P. Ward, Jr., Jeffrey S. Jenness, William M. Block, Shaula Hedwall, Ryan
S. Jonnes, Darrell L. Apprill, Todd A. Rawlinson, Sean C. Kyle, Steven L. Spangle, Use of
protected activity centers by Mexican Spotted Owls in the Sacramento Mountains, New Mexico,
48 J. Raptor Rsch. 210, 211-12 (2014). The Forest Service notes:
15
Protected Activity Centers (PACs) have been established at all [Mexican
spotted owl] sites located during surveys and around all management territories
since 1989 . . . . These PACs are 600 acres or more in size and have been digitized
using mapped vegetation polygons that are centered around nest sites, roost sites,
quality nesting habitat and appropriate topographic features.
Gila National Forest Wilderness Ranger District, U.S. Forest Service, Biological Assessment for
Gila National Forest Feral Cattle Removal Project: No Effect Determinations at 8 (dated January
2023), (AR 005687)(“Miscellaneous Biological Assessment”)(brackets and ellipses added).
- 26 -
Mexican gray wolf denning 16 or rendezvous 17 site. See Decision Memo. at 8 (AR 005906). To
protect scavengers from lead contamination, Animal Inspection Service will use only non-toxic
ammunition, e.g., copper, to shoot the Gila Cows. See Decision Memo. at 8 (AR 005906). To
protect local cattle ranchers’ economic interests, the Decision Memo provides that, although the
Forest Service already notified grazing permittees about the Aerial Shooting through both personal
mail service and public postings, any “[o]wned livestock gathered and removed by the Forest
Service may be redeemed by submitting proof of ownership and paying for all expenses incurred
by the United States in gathering, impounding, and feeding the livestock.” Decision Memo. at 8
(AR 005906). Further, the Forest Service will record location coordinates for each carcass “to
allow for follow-up inspection if needed,” and, “[i]f branded cattle are lethally removed during
gathering or aerial operations, the owner may request compensation” accordingly. Decision
Memo. at 7 (AR 005906). Finally, to promote public safety, the Aerial Shooting will take place
in winter or early spring, when there are few visitors in the Gila Wilderness, and the Forest Service
Shortly before giving birth, a female Mexican gray wolf digs a small hole or den where
she will birth and nurse her pups for approximately six weeks until they emerge from the den and
begin acclimating to the wild. See U.S. Fish & Wildlife Service, How Mexican Wolves Find and
Prepare a Den for Pups (dated May 2, 2023), available at https://www.fws.gov/story/202405/100th-mexican-wolf-pup-fostered-wild (last visited October 15, 2024)(“Denning
Background”). While the mother nurses the pups, other pack members hunt and bring back food
to the den, which serves as a home base for the pups until they are about three months old. See
Denning Background. In 2023, 23 Mexican grey wolf packs exhibited denning behavior in New
Mexico. See U.S. Fish & Wildlife Service, Mexican Wolf Recovery Program Progress Report #26
at 23 (dated August 30, 2024).
16
“In the summer, 8-20 weeks after wolf pups are born, reproductive packs localize to areas
called rendezvous sites, where the pups are kept while they are too young to travel with the pack.”
Jennifer L. Stenglein, Lisette P. Waits, David E. Ausband, Peter Zager &Curt M. Mack, Estimating
gray wolf pack size and family relationships using noninvasive genetic sampling at rendezvous
sites, 92 J. Mammalogy 784, 785 (2011).
17
- 27 -
will issue a closure order to prohibit the public from entering the project area immediately before
and during the operation. See Decision Memo. at 8 (AR 005906).
ii.
The Aerial Shooting’s Motivation.
The Forest Service summarizes the Aerial Shooting’s rationales:
1.
Meet the intent of 36 CFR 261.7 which prohibits placing or allowing
unauthorized livestock to enter or be in the National Forest System or
other lands under Forest Service control.
2.
Protect the habitat of aquatic and terrestrial wildlife, especially within
riparian areas where resource degradation is occurring, to be consistent
with the Endangered Species Act and the 1986 Forest Plan standards
related to threatened and endangered wildlife habitat.
3.
Protect stream banks and spring areas from further trampling, erosion,
and sedimentation to be consistent with the Clean Water Act and the
1986 Forest Plan standards related to riparian areas.
4.
Restore the wilderness character of the Gila Wilderness by removing
non-native species and alleviating the damage caused by over-grazing
to be consistent with the Wilderness Act.
5.
Ensure invasive and exotic species capable of reproducing in native
habitats are not allowed to invade National Forest System lands to be
consistent with the 1986 Forest Plan standards related to wildlife.
Decision Memo. at 5 (AR 005903). Regarding (1) and (5), the Forest Service notes that the Gila
Cow population can reproduce, no grazing has been authorized within the project area since 1998,
and hikers “report being charged by feral bulls.” Decision Memo. at 2 (AR 005900). Regarding
(2) and(3), the Forest Service identifies several ways the Gila Cows threaten the Gila Wilderness’
delicate ecology. See Decision Memo. at 2-4, 11 (AR 005900-2; AR 005909). First, documented
over-grazing and stream-bank trampling may damage “a riparian area’s vegetative health and
subsequent ability to provide for stream shading.” Decision Memo. at 3 (AR 005901). Water
temperature may rise without proper stream shading, and “[b]oth the Gila River and Turkey Creek,
- 28 -
the two primary waterways within the project area, are listed as being in a state of non-attainment, 18
with water temperature listed as the probable cause for impairment.” Decision Memo. at 3
(AR 005901)(citing New Mexico Environment Department Surface Water Quality Bureau, 20222024 State of New Mexico Clean Water Act § 303(d)/§305(b) Integrated Report, available at
https://cloud.env.nm.gov/resources/_translator.php/MjQ5NzMxZWFkMjgyMmEzMmVlYzFlM
TI4Nl82NDQwOQ~~.pdf (last visited October 9, 2024)(“CWA Report”)). The Forest Service
provides three photographs documenting the alleged overgrazing and trampling:
A waterway is in a state of non-attainment if it cannot support an associated use. See
New Mexico Environment Department Surface Water Quality Bureau, 2022-2024 State of New
Mexico Clean Water Act § 303(d)/§305(b) Integrated Report Appendix A at ii (dated April 26,
2022),
available
at
https://www.env.nm.gov/surface-water-quality/wpcontent/uploads/sites/18/2022/03/2022-2024-IR-Appendix-A-303d-305b-Integrated-List.pdf (last
visited October 9, 2024)(“CWA Report Appendix A”). For example, based on 2022 assessments,
some Gila River and Turkey Creek segments cannot support uses like “HQColdWAL” -- high
quality coldwater aquatic life -- “MCWAL” -- marginal coldwater aquatic life -- “WWAL” - warmwater aquatic life -- “MWWL” -- marginal warmwater aquatic life -- or “PC” -- primary
contact -- because of their temperatures, nutrients, or E. coli presence. CWA Report at 347, 34950, 352, 354-55. See CWA Report Appendix A at 11.
18
- 29 -
- 30 -
Decision Memo. at 3-4 (AR 005901-02). Second, the Forest Service contends that the Gila Cows’
concentrated presence around waterways threatens the Gila Wilderness’ riparian areas, “because
animal waste has the potential to contaminate water.” Decision Memo. at 11 (AR 005909). The
Administrative Records contain a study observing that higher fecal matter concentrations in
Chilean freshwater bodies located near urban and agricultural sites are associated with higher rates
of antibacterial-resistant and zoonotic 19 bacteria in those waterways, which poses public health
risks because those waterways are used to irrigate crops. See Constanza Díaz-Gavidia, Carla
Barría, Daniel L. Weller, Marilia Salgado-Caxito, Erika M. Estrada, Aníbal Araya, Leonardo Vera,
Woutrina Smith, Minji Kim, Andrea I. Moreno-Switt, Jorge Olivares-Pacheco, & Aiko D. Adell,
Humans and Hoofed Livestock Are the Main Sources of Fecal Contamination of Rivers Used for
Crop Irrigation: A Microbial Source Tracking Approach, Frontiers in Microbiology June 30, 2022,
at 1-2, 13-14 (AR 004149-50, AR 004161-62). Third, the Forest Service alleges that the Gila
Cows’ over-grazing has “negatively impacted fish and wildlife habitats including habitats for
several federally threatened and endangered species,” including the “southwest willow flycatcher,
19
The World Health Organization provides:
A zoonosis is an infectious disease that has jumped from a nonhuman animal to humans. Zoonotic pathogens may be bacterial, viral or
parasitic, or may involve unconventional agents and can spread to humans
through direct contact or through food, water or the environment. They
represent a major public health problem around the world due to our close
relationship with animals in agriculture, as companions and in the natural
environment. Zoonoses can also cause disruptions in the production and
trade of animal products for food and other uses.
World Health Organization Zoonoses, available at https://www.who.int/news-room/factsheets/detail/zoonoses (last visited October 9, 2024).
- 31 -
narrow-headed garter snake, Gila chub, loach minnow, spikedace, and Mexican spotted owl,” each
of whose habitat is in the Aerial Shooting’s project area. Decision Memo. at 2 (AR 005900).
Regarding (4) -- i.e., restoring wilderness character -- the Forest Service asserts that the
Gila Cows’ presence in the Gila Wilderness undermines the Forest Service’s duty to preserve
wilderness character, as the Wilderness Act and Forest Service regulations mandate. See Decision
Memo. at 4 (AR 005902). The Wilderness Act states that
each agency administering any area designated as wilderness shall be responsible
for preserving the wilderness character of the area and shall so administer such area
for such other purposes for which it may have been established as also to preserve
its wilderness character. Except as otherwise provided in this Act, wilderness areas
shall be devoted to the public purposes of recreational, scenic, scientific,
educational, conservation, and historical use.
16 U.S.C. § 1133(b). Relevant Forest Service regulations provide:
National Forest Wilderness shall be so administered as to meet the public purposes
of recreational, scenic, scientific, educational, conservation, and historical uses; and
it shall also be administered for such other purposes for which it may have been
established in such a manner as to preserve and protect its wilderness character. In
carrying out such purposes, National Forest Wilderness resources shall be managed
to promote, perpetuate, and, where necessary, restore the wilderness character of
the land and its specific values of solitude, physical and mental challenge, scientific
study, inspiration, and primitive recreation. To that end:
(a)
Natural ecological succession will be allowed to operate
freely to the extent feasible.
(b)
Wilderness will be made available for human use to the
optimum extent consistent with the maintenance of primitive
conditions.
(c)
In resolving conflicts in resource use, wilderness values will
be dominant to the extent not limited by the Wilderness Act,
subsequent establishing legislation, or the regulations in this
part.
36 C.F.R. § 293.2. The Forest Service acknowledges that livestock grazing “was considered a
historical use when the Gila Wilderness was designated” and permitted livestock to continue to
- 32 -
graze in the Gila Wilderness. Decision Memo. at 4 (AR 005902). The Forest Service maintains
that, because the Gila Cows are not permitted livestock, however, their “presence . . . and their
associated impacts to resources are detrimental to the wilderness character that the U.S. Forest
Service has the responsibility to protect.” Decision Memo. at 4-5 (AR 005902-03).
iii.
The Aerial Shooting’s Legality.
The Decision Memo. details how the Aerial Shooting complies with Forest Service
regulations and the NEPA. See Decision Memo. at 6-12, 14-16 (AR 005904-10; AR 00591214). 20 The Court discusses each argument in turn.
(1)
The Forest Service Argues That the Aerial Shooting
Complies With Forest Service Regulations, Because the
Gila Cows Are Not Unauthorized Livestock, and the
Forest Service Has the Authority to Manage Invasive
Species.
Regarding compliance with Forest Service regulations that govern impounding
unauthorized livestock, 21 the Decision Memo. states:
While the agency intends to follow the procedures set forth in 36 CFR 262.10 for
animals successfully gathered as part of this proposed action, it is not required to
follow those procedures in this instance because the feral cattle are not “livestock”
The Respondents make similar arguments in the Federal Respondents’ Response Brief on
the Merits at 17-51, filed October 19, 2023 (Doc. 58)(“Respondents’ Merits Response”).
20
36 C.F.R. § 262.10 requires the Forest Service to notify the public of its intent to impound
unauthorized livestock and post a notice of sale of any impounded unauthorized livestock. See 36
C.F.R. § 262.10(a)-(d). Unauthorized livestock owners may then submit proof of ownership and
redeem the livestock based on the impoundment cost. See 36 C.F.R. § 262.10(e). If the
impoundment cost, including gathering, impounding, feeding, and pasturing, exceeds the
livestock’s fair market value, the owner may redeem their livestock for a “minimum acceptable
redemption price at fair market value.” 36 C.F.R. § 262.10(e). If no owner redeems the
impounded unauthorized livestock, the Forest Service ten shall sell the unauthorized livestock at
public sale. See 36 C.F.R. § 262.10(f). If the public sale is unsuccessful, the unauthorized
livestock may then be sold at private sale, reoffered at public sale, condemned and destroyed, or
otherwise disposed of. See 36 C.F.R. § 262.10(f).
21
- 33 -
as “animals of any kind kept or raised for use or pleasure,” because they are no
longer domesticated animals being “kept or raised” by any individual.
Decision Memo. at 6 (AR 005904)(quoting 36 C.F.R. § 221(b)). The Decision Memo. also asserts
that the Forest Service has authority to manage invasive and exotic species like the Gila Cows:
The authority to manage for invasive species on National Forest System
lands and other lands under Forest Service control is delegated from the Secretary
of Agriculture to the Under Secretary for Natural Resources and Environment at
Title 7, Code of Federal Regulations (CFR), section 2.20 (7 CFR 2.20). This
authority has been delegated in turn from the Under Secretary for Natural
Resources and Environment to the Chief of the Forest Service at Title 7, Code of
Federal Regulations, section 2.60 (7 CFR 2.60). Title 36, Code of Federal
Regulations (including Parts 221, 222, 228, 241, 251, 261, 290, 292, 293, 296, and
297) provides additional authorities to manage and regulate invasive species across
the National Forest System, including establishing requirements and prohibitions
to prevent and control aquatic and terrestrial invasive species.
Decision Memo. at 6 (AR 005904)(quoting Forest Service Manual § 2901.02). 22
The Decision Memo also states that the 1986 Forest Plan, as amended, and Executive
Order 13112, 64 Fed. Reg. 125 (February 8, 1999), grant the Forest Service similar authority to
remove invasive species. The 1986 Forest Plan directs the Forest Service to “[m]anage for
indigenous species,” and notes that “exotic species capable of reproducing in native habitats will
not be introduced or allowed to invade National Forest System lands.” U.S. Forest Service, Gila
National
Forest
Plan
at
27
(dated
September
1986),
available
at
https://www.fs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb5275452.pdf (last visited October
15, 2024). Executive Order 13112 provides:
22
Sec. 2. Federal Agency Duties. (a) Each Federal agency whose actions
may affect the status of invasive species shall, to the extent practicable and
permitted by law,
(1)
identify such actions;
(2)
subject to the availability of appropriations, and within
Administration budgetary limits, use relevant programs and
authorities to: (i) prevent the introduction of invasive
species; (ii) detect and respond rapidly to and control
populations of such species in a cost-effective and
environmentally sound manner; (iii) monitor invasive
species populations accurately and reliably; (iv) provide for
restoration of native species and habitat conditions in
ecosystems that have been invaded; (v) conduct research on
- 34 -
(2)
The Forest Service Argues That the Aerial Shooting
Complies With the NEPA, Because At Least One
Categorical Exclusion Applies, and There Are No
Extraordinary Circumstances.
Regarding NEPA compliance, 23 the Decision Memo. contends that the Aerial Shooting “is
categorically excluded from documentation in an environmental impact statement (EIS) or an
invasive species and develop technologies to prevent
introduction and provide for environmentally sound control
of invasive species; and (vi) promote public education on
invasive species and the means to address them; and
(3)
not authorize, fund, or carry out actions that it believes are
likely to cause or promote the introduction or spread of
invasive species in the United States or elsewhere unless,
pursuant to guidelines that it has prescribed, the agency has
determined and made public its determination that the
benefits of such actions clearly outweigh the potential harm
caused by invasive species; and that all feasible and prudent
measures to minimize risk of harm will be taken in
conjunction with the actions.
Executive Order No. 13112, 64 Fed. Reg. 125 (February 8, 1999).
As discussed in more detail below, see infra, at 166-70, the NEPA is a procedural statute
that prevents federal agencies from making decisions without evaluating environmental
ramifications. See Park Cty. Res. Council, Inc. v. U.S. Dep’t of Agric., 817 F.2d 609, 620 (10th
Cir. 1987). There are three ways an agency can comply with the NEPA’s requirement for a
“detailed statement” regarding “major Federal actions significantly affecting the quality of the
human environment.” 42 U.S.C. § 4332(C). First, an agency can prepare a detailed statement,
called an EIS, that conforms to regulations regarding its format, content, and methodology. See
40 C.F.R. §§ 1502, 1508.11. Second, if an agency is unsure whether an EIS is required for a
proposed action, i.e., whether the action qualifies as a “major Federal action[] significantly
affecting the quality of the human environment,” 42 U.S.C. § 4332(C), the agency may prepare an
EA, see 40 C.F.R. §§ 1503(a), 1501.4(b). An EA “provide[s] sufficient evidence and analysis for
determining whether to prepare” an EIS or, alternatively, “a finding of no significant impact,”
40 C.F.R. § 1508.9(a)(1), which is “a document . . . briefly presenting the reasons why an
action . . . will not have a significant effect on the human environment [such that an EIS] therefore
will not be prepared,” 40 C.F.R. § 1508.13. See 40 C.F.R. § 1502.2. Third, an agency can
determine that an EIS is not required without needing to prepare an EA when the proposed action
falls within a categorical exclusion (“CE”). See 40 C.F.R. § 1508.4. A CE is “a category of actions
which do not individually or cumulatively have a significant effect on the human environment and
23
- 35 -
environmental assessment (EA).” Decision Memo. at 8 (AR 05906). The Forest Service argues
that the Aerial Shooting is excluded categorically from EIS or EA documentation, because at least
one categorical exclusion applies, and there are no extraordinary circumstances. The Court
discusses each argument in turn.
The Decision Memo. identifies three categorical exclusions (CEs): (i) civil and criminal
enforcement and investigative activities under 7 C.F.R. § 1b.3(a)(5); (ii) timber stand and/or
wildlife habitat improvement activities under 36 C.F.R. § 220.6(e)(6); and (iii) short-term resource
or public health and safety protection under 36 C.F.R. § 220.6(d)(1). See Decision Memo. at 8-9
(AR 005906-07). The Decision Memo. states that: (i) the Aerial Shooting is an enforcement or
investigative activity, because the Forest Service is authorized to investigate and remove
unauthorized cattle under 36 C.F.R. § 261, 262.10; (ii) the Aerial Shooting is a wildlife habitat
improvement activity, because it will address over-grazing and over-use in uplands and riparian
areas and promote natural re-vegetation; and (iii) the Aerial Shooting’s closure order and
which have been found to have no such effect in [NEPA] procedures adopted by a Federal agency.”
40 C.F.R. § 1508.4. If a CE applies, the agency then evaluates whether “extraordinary
circumstances” exist such that the “normally excluded action may have a significant effect.”
40 C.F.R. § 1501.4(b).
If an extraordinary circumstance exists, the agency nevertheless may apply
the categorical exclusion if the agency conducts an analysis and determines that the
proposed action does not in fact have the potential to result in significant effects
notwithstanding the extraordinary circumstance, or the agency modifies the action
to avoid the potential to result in significant effects. In these cases, the agency shall
document such determination and should publish it on the agency's website or
otherwise make it publicly available.
40 C.F.R. § 1501.4(b)(1). If an agency cannot apply a CE, the agency shall prepare an EA
or EIS, “as appropriate.” 40 C.F.R. § 1501.4(b)(2).
- 36 -
impoundment notice is a public safety and resource protection activity. See Decision Memo. at 89 (AR 005906-07).
Having identified three applicable CEs, the Forest Service contends that, although there
are several resource conditions that “should be considered in determining whether extraordinary
circumstances” exist, “there are no extraordinary circumstances that would warrant further
analysis and documentation in an EA or EIS.” Decision Memo. at 9 (AR 005907).
Importantly, the mere presence of one or more of these resource conditions does
not preclude the use of a categorical exclusion. It is the existence of a cause-effect
relationship between a proposed action and the potential effect on these resource
conditions, and if such a relationship exists, the degree of the potential effect of a
proposed action on these resource conditions determines whether extraordinary
circumstances exist.
Decision Memo. at 9 (AR 005907). The Forest Service evaluates each of the seven requisite 24
resource conditions and concludes that none of them constitute extraordinary circumstances:
(i) threatened, endangered, or sensitive species, and/or designated or proposed critical habitats;
(ii) flood plains, wetlands, or municipal watersheds; (iii) Congressionally designated areas such as
wilderness, wilderness study areas, or national recreation areas; (iv) inventoried roadless areas or
potential wilderness areas; (v) research natural areas; (vi) American Indians and Alaska Native
religious or cultural sites; and (vii) archaeological sites, or historic properties or areas. See
Decision Memo. at 9-12 (AR 005907-10).
24
36 C.F.R. § 220.6(b)(1) provides that these seven resource conditions “should be
considered in determining whether extraordinary circumstances related to a proposed
action warrant further analysis and documentation in an EA or an EIS.” 36
C.F.R. § 220.6(b)(1)
- 37 -
Regarding (i), the Forest Service prepares two biological assessments: 25 one for the
Mexican gray wolf, and one for all other species on the Aerial Shooting’s official species list.26
Under the Endangered Species Act and 50 C.F.R. § 402, an agency may prepare a
biological assessment while it evaluates a federal action’s viability:
25
A biological assessment shall evaluate the potential effects of the action on
listed and proposed species and designated and proposed critical habitat and
determine whether any such species or habitat are likely to be adversely affected
by the action and is used in determining whether formal consultation or a
conference is necessary.
50 C.F.R. § 402.12(a). Depending on the circumstances, a biological assessment, as well
as formal or informal concurrence from partner agencies like the United States Fish and
Wildlife Service, may be either required or optional:
- 38 -
Biological Assessment Guidebook, Version 3.1 at 8, (dated September 2018), U.S. Forest
Service,
available
at
https://www.fs.usda.gov/Internet/FSE_DOCUMENTS/fseprd639466.pdf (last visited
October 18, 2024)(“Biological Assessment Guidebook”). A biological assessment’s
contents are “at the discretion of the Federal agency and will depend on the nature of the
Federal action,” although the following “may be considered for inclusion:”
(1)
The results of an on-site inspection of the area affected by the action to
determine if listed or proposed species are present or occur seasonally.
(2)
The views of recognized experts on the species at issue.
- 39 -
See Decision Memo. at 9-11 (AR 005907-09); Gila National Forest Wilderness Ranger District,
U.S. Forest Service, Biological Assessment for Gila National Forest Feral Cattle Removal Project
at 1-10 (dated January 29, 2023)(AR 005548-57)(“Mexican Gray Wolf Biological Assessment”);
Gila National Forest Wilderness Ranger District, U.S. Forest Service Biological Assessment for
Gila National Forest Feral Cattle Removal Project: No Effect Determinations at 1-57 (dated
February 8, 2023)(AR 005680-736)(“Miscellaneous Biological Assessment”). The Forest Service
provides a table that summarizes the biological assessments’ findings:
(3)
A review of the literature and other information.
(4)
An analysis of the effects of the action on the species and habitat, including
consideration of cumulative effects, and the results of any related studies.
(5)
An analysis of alternate actions considered by the Federal agency for the
proposed action.
50 C.F.R. § 402.12(f).
The Endangered Species Act requires that an agency obtain from the Fish and Wildlife
Service or the National Marine Fisheries Service a current “official species list” that identifies all
threatened and endangered species that may occur in the action area. Biological Assessment
Guidebook at 19.
26
- 40 -
Miscellaneous Biological Assessment at 4 (AR 005683). 27 In addition to preparing the two
biological assessments for the Mexican gray wolf and each threatened or endangered species that
“ESA” refers to the Endangered Species Act, which categorizes species as either
“endangered,” which “means a species is in danger of extinction throughout all or a significant
portion of its range,” or “threatened,” which “means a species is likely to become endangered
within the foreseeable future.” U.S. Fish and Wildlife Service, ESA Basics: 40 Years of
Conserving Endangered Species at 1 (dated February 2017), available at
https://www.fws.gov/sites/default/files/documents/endangered-species-act-basics.pdf (last visited
October 18, 2024)(“Endangered Species Act Basics”). The Endangered Species Act also provides
for the categorization of species as experimental and non-essential:
27
One conservation tool to help a threatened or endangered species recover is
to re-introduce them into their habitat. To relieve landowner concerns that
reintroductions may result in restrictions on the use of private, tribal, or public land,
Congress added the provision for experimental populations under section 10(j) of
the [Endangered Species Act, 16 U.S.C. § 1539(j)]. Under section 10(j) the [Fish
- 41 -
and Wildlife Service] may designate a population of a listed species as experimental
if it will be released into suitable natural habitat outside the species’ current range.
An experimental population is a special designation for a group of plants or animals
that will be reintroduced in an area that is geographically isolated from other
populations of the species. With the experimental population designation, the
specified population is treated as threatened under the ESA, regardless of the
species’ designation elsewhere in its range. Treating the experimental population
as threatened allows the FWS the discretion to devise management programs and
special regulations for that population.
An experimental population may be considered essential or nonessential.
An essential population is one that is considered essential to the continued existence
of an endangered or threatened species. Under a 10(j) designation as “nonessential,
experimental,” both the take prohibitions and consultation requirements of the ESA
are relaxed, easing regulatory burden associated with endangered species. For
example, the 10(j) rules for black-footed ferrets makes certain incidental harm to
ferrets legal when it happens as a result of otherwise lawful activities including
traditional management or land use. This flexibility has allowed FWS biologists to
introduce ferrets into a number of sites on public and private lands from Mexico to
Canada. With the special allowances afforded under the 10(j) rule, landowners can
continue to manage their lands without concern about violating the ESA by
inadvertently harming a ferret.
U.S. Fish and Wildlife Service, What is a (j) Rule? at 1 (dated October 2018), available at
https://www.fws.gov/sites/default/https://www.fws.gov/sites/default/files/documents/ESAsection10%28j%29-fact-sheet.pdf/documents/endangered-species-act-basics.pdf (last visited
October 18, 2024). “Take prohibitions” refer to limitations on interactions with listed animals:
The ESA makes it unlawful for a person to take a listed animal without a permit.
Take is defined as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture,
or collect or attempt to engage in any such conduct.” Through regulations, the term
“harm” is defined as “an act which actually kills or injures wildlife. Such an act
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.”
Endangered Species Act Basics at 1-2 (first quoting 16 U.S.C. § 1532(19); and then
quoting 50 C.F.R. § 17.3).
- 42 -
may occur in the project area, the Forest Service prepares a biological evaluation, 28 which provides
a summary table indicating that “the authorized action will have no adverse impacts on sensitive 29
or management indicator 30 species.” Decision Memo. at 11 (AR 005909). See Gila National
Forest Wilderness Ranger District, U.S. Forest Service, Biological Evaluation, at 3-11 (dated
February 9, 2023)(AR 005790-98)(“Biological Evaluation”).
The Biological Evaluation
concludes, without providing more information, that each sensitive or management indicator
A biological evaluation is a “documented Forest Service review of Forest Service
programs or activities in sufficient detail to determine how an action or proposed action may affect
any threatened, endangered, proposed, or sensitive species.” Forest Service Manual § 2670.5.
29
Sensitive species are:
28
Those plant and animal species identified by a Regional Forester for which
population viability is a concern, as evidenced by:
a.
Significant current or predicted downward trends in population numbers or
density.
b.
Significant current or predicted downward trends in habitat capability that
would reduce a species’ existing distribution.
Forest Service Manual § 2670.5. “A regional forester oversees forest supervisors,” forest
supervisors “direct the work of district rangers,” and a “district ranger and his or her staff is often
your first point of contact with the Forest Service.” Agency Organization, U.S. Forest Service,
available
at
https://www.fs.usda.gov/aboutagency/organization#:~:text=A%20regional%20forester%20oversees%20forest%20supervisors.
%20Regional%20office,forest%20plans%2C%20and%20allocates%20budgets%20to%20the%2
0forests (last visited October 25, 2024)(“Forest Service Organization”). There are nine geographic
regions in the Forest Service, each with its own Regional Forester. See Forest Service
Organization.
Management Indicators are “plant and animal species, communities, or special habitats
selected for emphasis in planning, and which are monitored during forest plan implementation in
order to assess the effects of management activities on their populations and the populations of
other species with similar habitat needs which they may represent.” Forest Service
Manual § 2620.5-1. A Management Indicator Species is a species that the Forest Service selects
“because their population changes are believed to indicate the effects of management.” U.S. Forest
Service, Region 3 Management Indicator Species Selection Process and Criteria at 1, available at
https://www.fs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb5181244.pdf (last visited October
25, 2024).
30
- 43 -
species either does not occur in the project area, or, if they do, the Aerial Shooting does not alter
the species’ habitats. See Biological Evaluation at 1-11 (AR 005788-98).
In sum, the Forest Service concludes Aerial Shooting will not affect the first resource
condition -- threatened, endangered, or sensitive species, and/or designated or proposed critical
habitats – in a way that warrants a finding of extraordinary circumstances. See Decision Memo.
at 9-11 (AR 005907-09). To support this conclusion, the Forest Service compiles nearly seventy
pages of biological assessment materials for the sixteen species identified in the Aerial Shooting’s
official species list. See Mexican Gray Wolf Biological Assessment at 1-12 (AR 005548-59);
Miscellaneous Biological Assessment at 1-57 (AR 005680-736). Of the sixteen identified species,
ten occur or likely occur in the project area, and, of those ten, six have critical habitat in the project
area. See Miscellaneous Biological Assessment at 4 (AR 005683). The Forest Service determines
that the Aerial Shooting will have no effect on nine of the ten occurring species. See Miscellaneous
Biological Assessment at 4 (AR 005683). The Forest Service bases this conclusion on its detailed
cataloguing of each species’ presence in the Gila Wilderness. See Mexican Gray Wolf Biological
Assessment at 1-12 (AR 005548-59); Miscellaneous Biological Assessment at 1-57 (AR 005680736). The Forest Service concludes that the Aerial Shooting may affect only one identified
species -- the Mexican gray wolf, which is an experimental, non-essential population. See
Mexican Gray Wolf Biological Assessment at 1-12 (AR 005548-59). The Forest Service finds - and the Fish and Wildlife Service concurs -- that the Aerial Shooting is not likely to jeopardize
the Mexican gray wolf population, because there is no compelling evidence that scavenging on
cattle carcasses increases wolf/livestock conflicts, and, after the February, 2022, Aerial Shooting,
only two wolves lingered in the project area for a few months afterwards. See Mexican Gray Wolf
Biological Assessment at 8-10 (AR 005906-08); Fish and Wildlife Concurrence at 3 (AR 005800).
- 44 -
For the six species who have critical habitat in the project area, the Forest Service anticipates that
the Aerial Shooting will improve and not damage habitat conditions by decreasing the Gila Cows’
destructive over-grazing. See Miscellaneous Biological Assessment at 12, 19, 28, 37, 41, 57
(AR 005691; AR 005698; AR 005707; AR 005716; AR 005720; AR 005736).
The Court
discusses the Forest Service’s conclusions related to each species in turn.
The Decision Memo. states that the Mexican Gray Wolf Biological Assessment “concluded
the proposed action is not likely to jeopardize the wolf” and that the Fish and Wildlife Service
“concurred with this finding.” Decision Memo. at 9 (AR 005907)(citing U.S. Fish and Wildlife
Service, Concurrence No. 2023-0036459 (dated February 10, 2023)(AR 005799-803)(“Fish and
Wildlife Service Concurrence”). The Decision Memo. says that, although “[s]coping comments
raised concern over the proposed action having a detrimental effect on Mexican wolf behavior and
potentially increasing future wolf/livestock depredation . . . no supporting evidence or
documentation was provided for the Forest to consider.” Decision Memo. at 10 (AR 005908).
The Forest Service contends, instead, that “[n]o relationship between the presence of Mexican
wolves and a change in feeding behavior from the proposed action has been established.” Decision
Memo. at 9 (AR 005908). To support its conclusion that the Aerial Shooting does not impact the
Mexican gray wolves’ feeding patterns, the Forest Service notes that the Mexican gray wolf
interagency field team “does not have any evidence that wolf scavenging on cattle carcasses has
any known effect on wolf depredation rates on livestock.” Decision Memo. at 10 (AR 005908).
The Decision Memo also contends that, because the carcasses will only be in the Gila Wilderness
for several weeks, they will not be a “reliable, year-round food source,” which mitigates the
depredation concern. Decision Memo. at 10 (AR 005908).
- 45 -
The Mexican Gray Wolf Biological Assessment acknowledges that the Mexican gray
wolves, like other scavengers such as coyotes, foxes, bobcats, raccoons, scavenging birds, and
insects, may feed on the Gila Cow carcasses. See Mexican Gray Wolf Biological Assessment at
8 (AR 005555). This dynamic is not, however, a paradigm shift:
Wolves and other predators are exposed to livestock carcasses as well as other large
ungulate[31] carcasses throughout their entire range in New Mexico and Arizona on
Forest Service lands, Bureau of Land Management lands, Fish and Wildlife Service
Lands, and State game agency lands as none of these agencies have a policy
requiring livestock carcasses to be removed or disposed of.
Mexican Gray Wolf Biological Assessment at 8 (AR 005555)(citing internal emails).
The
Mexican Gray Wolf Biological Assessment also contends that “the whole subject of carcass
disposal as a factor predisposing cattle to wolf depredations remains open,” given that “[r]eviews
at the continental and global scales show that wolves tend to prefer wild over domestic ungulates
where both are available.” Mexican Gray Wolf Biological Assessment at 9 (AR 005556)(first
citing Diane Zlatanova., Atidzhe Ahmed, Albena Valasseva, & Peter Genov, Adaptive Diet
Strategy of the Wolf (Canis lupus L.) in Europe: A Review, 66 Acta Zoologica Bulgarica 439
(2014); and then citing Thomas M. Newsome, Luigi Boitani, Guillaume Chapron, Paolo Ciucci,
Christopher R. Dickman, Justin A. Dellinger, José Vicente López-Bao, Rolf O. Peterson, Carolyn
Shores, Aaron J. Wirsing, William J. Ripple, Food Habits of the World’s Gray Wolves, 46
Mammal Rev. 255 (2016)). The Decision Memo. also quotes the Fish and Wildlife Service
Concurrence at length, noting that, after the February, 2022, Aerial Shooting, “two wolves were
attracted to the carcasses, stayed in the area for several months, then moved back into their normal
An ungulate is a hoofed animal. See Ungulata, The Oxford English Dictionary Vol. 19,
at 40 (2d ed. 1998).
31
- 46 -
areas without preying on live cattle.” Decision Memo. at 10 (AR 005908); Fish and Wildlife
Service Concurrence at 3 (AR 005800).
The Mexican Gray Wolf Biological Assessment also acknowledges that the Aerial
Shooting’s helicopter use may disturb Mexican gray wolves in the project area. See Mexican Gray
Wolf Biological Assessment at 8 (AR 005555). According to the Mexican Gray Wolf Biological
Assessment, the Aerial Shooting’s precautions are sufficient, however, because no operations are
planned during denning season, and if any operations occur during denning season, the helicopter
will observe a one-mile buffer around known dens and rendezvous sites. See Mexican Gray Wolf
Biological Assessment at 8 (AR 005555). On this point, the Mexican Gray Wolf Biological
Assessment concludes that the Aerial Shooting “will not adversely affect reproductive success,
natural behavior, or survival of wolves.” Mexican Gray Wolf Biological Assessment at 8
(AR 005555). The Mexican Gray Wolf Biological Assessment separately notes that, because the
Mexican gray wolves are a nonessential population, which is “not essential to the continued
existence of the species,” no proposed action “could lead to a jeopardy determination for the entire
species.” Mexican Gray Wolf Biological Assessment at 10 (AR 005557). Overall, the Mexican
Gray Wolf Biological Assessment concludes that the Aerial Shooting Project is “Not Likely to
Jeopardize” the Mexican gray wolf.
Mexican Gray Wolf Biological Assessment at 10
(AR 005555)(emphasis and capitalization in original).
The Decision Memo. states that “a determination of no effect was made for all other
federally endangered and threatened species found within the project area,” because: (i): the Aerial
Shooting “would have no impact on the species or its habitat”; or (ii) the Aerial Shooting would
not “overlap spatially or temporally with known habitat.” Decision Memo. at 10-11 (AR 00590809). The Forest Service identifies one concerning area: there is one Mexican spotted owl PAC
- 47 -
within the project area. See Decision Memo. at 11 (AR 005909). The Decision Memo. notes,
however, that the Aerial Shooting will not occur within one-half mile of that PAC during breeding
season -- March 1st through September 30th. See Decision Memo. at 11 (AR 005909). The fiftyseven page Miscellaneous Biological Assessment provides more detail 32 on the no effect
determinations: only the Mexican spotted owl, Southwestern willow flycatcher, narrow-headed
gartersnake, Gila chub, loach minnow, and spikedace have critical habitats 33 within the project
area. See Miscellaneous Biological Assessment at 4 (AR 005683). The Miscellaneous Biological
Assessment also determines that each of those six species, as well as the Gila trout, yellow-billed
cuckoo, and monarch butterfly, occurs or possibly occurs within the project area.
See
Miscellaneous Biological Assessment at 4 (AR 005683).
The project area contains a large swath of critical habitat, as well as one PAC, for the
Mexican spotted owl:
The Miscellaneous Biological Assessment’s granularity is notable, e.g., the Forest
Service includes a map of the 106 Mexican spotted owl PACs throughout the Gila Wilderness, and
identifies specifically which one is located within the project area. See Miscellaneous Biological
Assessment at 9-10 (AR 005688-89).
32
33
The Fish and Wildlife Service provides:
When a species is proposed for listing as endangered or threatened under
the Endangered Species Act (ESA), we identify specific areas that are essential to
its conservation. These are the species’ critical habitat.
Critical habitat is a tool that supports the continued conservation of
imperiled species by guiding cooperation within the federal government.
Designations affect only federal agency actions or federally funded or permitted
activities.
U.S.
Fish
and
Wildlife
Service,
Critical
Habitat,
available
https://www.fws.gov/project/critical-habitat (last visited October 21, 2024).
- 48 -
at
Miscellaneous Biological Assessment at 10 (AR 005689). In finding that the Aerial Shooting will
have no effect on the Mexican spotted owl, a threatened species, the Forest Service notes that any
operations taking place during breeding season will not occur within one-quarter mile of the known
PAC within the project area, and that no holding facilities will be constructed that “would have
any effect on the species or critical habitat.”
Miscellaneous Biological Assessment at 12
(AR 005691). Moreover, over-grazing threatens the Mexican spotted owl in two ways: (i) by
altering “food and cover resources needed by the owl’s prey species”; and (ii) altering or
eliminating vegetation that may develop into Mexican spotted owl habitat.
- 49 -
Miscellaneous
Biological Assessment at 10 (AR 005689). Accordingly, the Aerial Shooting may help protect the
Mexican spotted owl, because “[r]emoval of feral cattle from the action area will allow for
improved riparian, aquatic, and upland vegetation conditions.”
Miscellaneous Biological
Assessment at 12 (AR 005691).
While the Miscellaneous Biological Assessment identifies each Mexican spotted owl PAC
individually, see supra at 45 n.29, the Forest Service acknowledges that the Southwestern willow
flycatcher, an endangered species, is not catalogued so easily. See Miscellaneous Biological
Assessment at 14 (AR 005693).
Because riparian vegetation typically occurs in flood plain areas that are prone to
periodic natural disturbance, suitable habitats will be ephemeral and their
distribution dynamic in nature. Therefore, it is not realistic to assume that any given
suitable habitat patch (occupied or unoccupied) will remain continually occupied
and/or suitable over the long-term. Unoccupied suitable habitat will therefore play
a vital role in the recovery of the SWWF, because it will provide suitable breeding
areas for SWWFs to: a) colonize as populations expands (numerically and
geographically), and b) move to, following loss or degradation of existing breeding
sites.
Miscellaneous Biological Assessment at 14 (AR 005693). The Forest Service notes, however,
that, as of 2019, there were three known Southwestern willow flycatcher sites in the Gila National
Forest, none of which is within the Gila Wilderness or the project area:
- 50 -
- 51 -
Miscellaneous Biological Assessment at 15 (AR 005694)(identifying Southwestern willow
flycatcher sites in red). See also Miscellaneous Biological Assessment at 14 (AR 005693). The
Miscellaneous Biological Assessment states that the Gila River Bird Area and the Fort West Ditch
sites “have been consistently occupied for over 25 years along the Gila River,” and that, in 2007,
the Forest Service discovered the WS Dam, located along the San Francisco River. Miscellaneous
Biological Assessment at 13-15 (AR 005693-95).
Further, the Miscellaneous Biological
Assessment notes that the Forest Service excludes “livestock grazing from large portion [sic] of
the San Francisco and Gila Rivers to improve riparian function.” Miscellaneous Biological
Assessment at 16 (AR 005695). Given these conditions, the Forest Service determines that overgrazing is one of several environmental conditions that threaten the Southwestern willow
flycatcher’s habitat:
Reasons for the decline and lack of recovery for the SWWF are numerous,
complex, interrelated, and are predominantly due to loss and modification of
riparian habitat. The loss and modification of riparian habitat occurs due to dams
and reservoirs, which alters natural stream flow patterns; groundwater pumping and
surface water diversion, which may lower water tables and reduce riparian
potential; stream channelization and bank stabilization, which separate the stream
from its floodplain; removal of riparian vegetation; improper livestock grazing;
recreation; fire; and cultural and urban development.
Miscellaneous Biological Assessment at 19 (AR 005698). It is notable that over-grazing threatens
the Southwestern willow flycatcher’s habit, because, although the project area does not contain
any known Southwestern willow flycatcher sites, the Forest Service identifies a small portion of
critical habitat along the Gila River in the project area’s Southwest corner:
- 52 -
Miscellaneous Biological Assessment at 19 (AR 005698). Overall, the Forest Service finds that
the Aerial Shooting will have no effect on the Southwestern willow flycatcher; the project area has
no known sites: “For gathering operations no temporary holding facility for feral cattle will be
constructed within critical habitat if construction of that temporary facility would adversely affect
the primary constituent elements of critical habitat (i.e. riparian vegetation removal).”
Miscellaneous Biological Assessment at 20 (AR 005699).
The Miscellaneous Biological Assessment states that the narrow-headed gartersnake, a
threatened species, has been observed in two locations within the Project Area: Little Creek and
- 53 -
Turkey Creek. 34 Miscellaneous Biological Assessment at 53. The project area contains some
narrow-headed gartersnake critical habitat along Little Creek:
Miscellaneous Biological Assessment at 56 (AR 005735). The Forest Service states that, although
it has not observed the Gila Cows using Little Creek, it has observed the Gila Cows grazing along
Turkey Creek, and “[the Gila Cows] are responsible for riparian and aquatic habitat degradation”
there.” Miscellaneous Biological Assessment at 57 (AR 005736).
During the warmer parts of the year feral cattle utilize Turkey Creek extensively.
One can find deep holes pawed in the sand by the cattle where they sand bathe to
The Forest Service last recorded the narrow-headed gartersnake’s presence in Turkey
Creek in 1985, and that area’s population status is “not likely viable.” Miscellaneous Biological
Assessment at 53 (AR 005732). Similarly, the Forest Service last recorded the species’ presence
in Little Creek in 2010, and that area’s population status is also “not likely viable.” Miscellaneous
Biological Assessment at 53 (AR 005732).
34
- 54 -
try and reduce insects that they attract. Feral cattle sign (tracks, feces) has been
observed in a prehistoric site consisting of a masonary [sic] and rock wall enclosing
the opening of a shallow cave, the feral cattle have damaged the wall where they
enter and exit the structure.
Miscellaneous Biological Assessment at 57 (AR 005736). The Forest Service also notes that
“[h]igh stream-side recreation levels” can contaminate streams, which harms native fish and
lowers the narrow-headed gartersnake’s prey base. Miscellaneous Biological Assessment at 55
(AR 005734). Although the Miscellaneous Biological Assessment does not make explicit this
connection, the Court notes that the Gila Cows’ observed activity near Turkey Creek may threaten
the narrow-headed gartersnake by contaminating the water and killing the fish that the narrowheaded gartersnake eats.
The Commenting Petitioners argue, on the other hand, that a
decomposing Gila Cow carcass may contaminate these same waterways and upset the ecological
balance. See Cattle Growers Comments at 8 (AR 004991); Shirley Comments at 9 (AR 005324).
The Forest Service asserts, however, that “[l]arge animals such as elk, deer, cattle, and horses often
succumb to natural causes of death in these same streams,” and, accordingly, any Gila Cow
carcasses that rot in or near waterways will have “no more of an impact” than another large animal
“naturally succumbing in the same place.” 35
Miscellaneous Biological Assessment at 57
(AR 005736). Given these dynamics, the Miscellaneous Biological Assessment concludes that the
Aerial Shooting will have no effect on the narrow-headed gartersnake. See Miscellaneous
Biological Assessment at 57 (AR 005735).
The Decision Memo. and the Scoping Letter state that the Forest Service will remove any
Gila Cow carcass located in or near a waterway, although Miscellaneous Biological Assessment’s
section on the narrow-headed gartersnake, loach minnow, or spikedace does not mention this fact .
See Decision Memo. at 6, 8 (AR 005904, AR 005906); Scoping Letter at 2 (AR 004289).
35
- 55 -
The Gila chub, an endangered species, “is known to occur only in perennial 36 portions of
Turkey Creek,” Miscellaneous Biological Assessment at 28 (AR 005707), in the project area,
which also contains designated critical habitat
A perennial stream is one that typically has water flowing in it year-round. See U.S.
Environmental Protection Agency, Learn About Streams, (last updated October 10, 2024),
available at https://www.epa.gov/cwa-404/learn-about-streams (last visited October 21, 2024).
36
- 56 -
Miscellaneous Biological Assessment at 29 (AR 005708).
See Miscellaneous Biological
Assessment at 30 (AR 005709)(“The entire [Turkey Creek segment where the Gila chub occupy]
occurs within the action area”). Although the Turkey Creek Gila chub population is “robust and
stable,” the Forest Service observes:
Approximately 85-90 percent of the Gila chubs’ habitat has been degraded or
destroyed, and much of it is unrecoverable. Today, much of the remaining Gila
chub habitat across its range is still extensively grazed, current mining operations
still operate in its watersheds, increased recreation use adds to habitat alteration,
and the introduction of nonnatives adds to habitat degradation.
Miscellaneous Biological Assessment at 28 (AR 005707). In evaluating the Aerial Shooting’s
effect on the Gila chub, the Forest Service suggests that, because the Gila chub occupy a Turkey
Creek segment that is “very narrow and consists of bedrock outcrops and large boulders,” Gila
Cows are not likely to be in the area. 37 Accordingly, the Miscellaneous Biological Assessment
concludes that the Aerial Shooting will have no effect on the Gila chub. See MBA at 30
(AR 005709).
The loach minnow, an endangered species, occurs in Gila River segments within the project
area; “the entire reach of the Gila River within the action area is designated critical habitat”:
37
There is a word missing from the Miscellaneous Biological Assessment here:
Aerial shooting operations may take place within Turkey creek [sic] and gathering
may occur in the upper reaches of Turkey Creek where feral cattle use has been
observed in the past. The occupied reach of stream is very narrow and consists of
bedrock outcrops and large boulders, making access for both feral cattle and
horseback riders.
Miscellaneous Biological Assessment at 30 (AR 005709). Based on the context, the Court
concludes that the Forest Service meant to include the word “difficult” -- or a synonym -- at the
end of the second sentence.
- 57 -
Miscellaneous Biological Assessment at 36-37 (AR 005715-16). The Miscellaneous Biological
Assessment asserts that activities like “domestic livestock grazing, mining, agriculture, timber
harvest, recreation, development, or impoundments . . . degrade loach minnow habitats by altering
flow regimes, increasing watershed and channel erosion and thus sedimentation, and adding
contaminants to streams and rivers.” Miscellaneous Biological Assessment at 37 (AR 005716).
Although Gila Cows “are present within the reaches of the Gila River” that the loach minnow
occupies, the Miscellaneous Biological Assessment concludes that the Aerial Shooting will have
no effect on the loach minnow, because (i) Gila Cow carcasses decomposing in or near the Gila
River pose no higher contamination risk than naturally decomposing large animals like cattle, elk,
- 58 -
deer, and horse; and (ii) the Forest Service will not construct any holding facilities that impact the
loach minnow’s critical habitat. See Miscellaneous Biological Assessment at 38 (AR 005717).
Like the loach minnow, the spikedace, an endangered species, occurs in Gila River
segments within the project area, and “designated critical habitat is present along the entire reach
of the Gila River within the action area”:
- 59 -
Miscellaneous Biological Assessment at 40-41 (AR 005719-20)(showing critical habitat in red).
The Miscellaneous Biological Assessment asserts: “Resource activities that affect water quality,
such as removal of riparian vegetation, sedimentation, or control of water levels, can affect
spikedace habitat quality and should be avoided or corrected.”
Miscellaneous Biological
Assessment at 41 (AR 005720). The Forest Service’s no-effect analysis for the spikedace is almost
identical to its loach minnow analysis: there is no anticipated effect, because decomposing Gila
Cows are no different than other large, decomposing animals, and the Forest Service will not
construct any facilities that impact critical habitat. See Miscellaneous Biological Assessment at
42 (AR 005721).
The Miscellaneous Biological Assessment also determines that, although the Gila trout,
yellow-billed cuckoo, and monarch butterfly do not have critical habitat in the project area, each
of these three species occurs or possibly occurs there. See Miscellaneous Biological Assessment
at 4 (AR 005681). The Gila trout, a threatened species, occupies a portion of Little Creek within
the project area, and, because the Gila Cows “have not been observed within Little Creek itself,”
MBA at 34 (AR 005713), the Forest Service determines that the Aerial Shooting will have no
effect on the Gila trout in Little Creek, see Miscellaneous Biological Assessment at 32-34
(AR 005711-13). In a 2002 survey, two yellow-billed cuckoos, a threatened species, are detected
in the project area. See Miscellaneous Biological Assessment at 23 (AR 005702). The Forest
Service notes, however, that the species is not known currently to occupy the project area. See
Miscellaneous Biological Assessment at 26 (AR 005705). The Forest Service asserts that, not
only will the Aerial Shooting not damage any riparian vegetation within the yellow-billed cuckoos’
critical habitat, but also that removing the Gila Cows “will allow for riparian community
enhancement and improve any habitat in the action area for the species.” Miscellaneous Biological
- 60 -
Assessment at 26 (AR 005705). The Forest Service also states that no temporary holding facilities
will be constructed near either the Gila trout or the yellow-billed cuckoo’s habitats.
See
Miscellaneous Biological Assessment at 26, 34 (AR 005705; AR 005713). Although the Forest
Service identifies the monarch butterfly as a candidate 38 species, the Miscellaneous Biological
Assessment provides no analysis regarding the Aerial Shooting’s effects on its ecological viability.
See Miscellaneous Biological Assessment at 1-57 (AR 005680-736).
The Forest Service next concludes that the Aerial Shooting’s impact on the second
identified resource condition-- flood plains, 39 wetlands, or municipal watersheds 40 -- also does not
“A species that we find warrants a proposal to list as endangered or threatened, but listing
is precluded by higher priority listing activities, is referred to as a candidate species.” U.S. Fish
and
Wildlife
Service,
Candidate
Conservation,
available
at
https://www.fws.gov/program/candidateconservation#:~:text=A%20species%20that%20we%20find%20warrants%20a%20proposal,acti
vities%2C%20is%20referred%20to%20as%20a%20candidate%20species. (last visited October
23, 2024). See also Forest Service Manual § 2670.5 (defining candidate species as “plant and
animal species that, in the opinion of the [Fish and Wildlife Service], may become endangered or
threatened.”)
39
According to the United States Department of the Interior, United States Geological
Survey:
38
Flood plains are lands bordering rivers and streams that normally are dry
but are covered with water during floods. Buildings or other structures placed in
flood plains can be damaged by floods. They also can change the pattern of water
flow and increase flooding and flood damage on adjacent property by blocking the
flow of water and increasing the width, depth, or velocity of flood waters.
U.S. Department of the Interior, Floods and Flood Plains (last modified January 11, 2013),
available at https://pubs.usgs.gov/of/1993/ofr93-641/ (last visited October 23. 2024) (emphasis
omitted).
“A watershed is an area of land that drains all the streams and rainfall to a common outlet
such as the outflow of a reservoir, mouth of a bay, or any point along a stream channel.” U.S.
Department of the Interior, Watersheds and Drainage Basis (Dated June 8. 2019), available at
https://www.usgs.gov/special-topics/water-science-school/science/watersheds-and-drainagebasins (last visited October 23, 2024).
40
- 61 -
constitute extraordinary circumstances. See Decision Memo. at 11 (AR 005909). According to
the Forest Service, there are no municipal watersheds within or downstream of the project area,
and the Aerial Shooting will not disturb flood plains, because the Forest Service would not
construct any temporary gathering structures within flood plains. See Decision Memo. at 11
(AR 005909). Regarding the possibility that the Gila Cow carcasses may contaminate water
quality and damage the project area’s wetlands, the Forest Service references a water resources
specialist report, see Carolyn Koury, Gila National Forest, U.S. Forest Service, Watershed & Air
Specialist Report at 1-11 (dated January 31, 2023)(AR 005562-72)(“Water Specialist Report”),
that “concluded the long-term benefits of removing feral cattle from riparian areas and allowing
for natural vegetation recovery greatly outweigh any short-term negative impacts a cow carcass
may have on water quality,” Decision Memo. at 11 (AR 005909). The Decision Memo. states that
two factors support the Water Specialist Report’s conclusion: (i) over-grazing lasts much longer
than rotting carcasses (months/years vs. days/weeks); and (ii) the Forest Service will remove any
carcass left in or near a waterway. Decision Memo. at 11 (AR 005909). 41 Crystallizing the water
damage that over-grazing causes, the Decision Memo. states that the Gila Wilderness’ two primary
waterways are in a state of non-attainment because of their water temperature, and that
“[r]emoving unauthorized grazing impacts from stream banks along the Gila River and Turkey
Creek will contribute to long-term benefits towards achieving water temperature attainment
standards.” Decision Memo. at 11 (AR 005909).
The Forest Service also notes that large animals die in the Gila Wilderness, and, “in most
cases, it is likely the carcass, especially wildlife, naturally decompose without any intervention.”
Decision Memo. at 11 (AR 005909). To extrapolate, large animals that die naturally near Gila
Wilderness waterways will often decompose and possibly contaminate the water.
41
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The Water Specialist Report details how over-grazing damages streams, raises water
temperatures, and threatens riparian ecosystems. See Water Specialist Report at 7-8 (AR 00556869). Surveying scientific research regarding over-grazing’s physical impact on waterways and the
resulting ecological damage, the Water Specialist Report states:
Researchers estimate that 80 percent of the damage incurred by streams and
riparian systems in arid environments is from grazing livestock [Bureau of Land
Management, U.S. Department of the Interior, Rangeland Reform: 1994 Draft
Environmental Impact Statement]. Stream and riparian damage resulting from
livestock grazing includes alterations in watershed hydrology, changes to stream
channel morphology, soil compaction and erosion, riparian vegetation destruction,
and water quality impairment [A.J. Belsky, A. Matzke, & S. Uselman, Survey of
Livestock Influences on Stream and Riparian Ecosystems in the Western United
States, 54 J. Soil & Water Conservation; 419 (1999)]. Livestock trampling of
stream banks can widen channels, channelize streams, and vertically erode
banks. [S. M. Wondzell, The influence of forest health and protection treatments
on erosion and stream sedimentation in forested watersheds of eastern Oregon and
Washington. 75 Nw. Sci., 128 (2001)]. This widening and trenching affect both
aquatic and terrestrial life forms as trenching subsequently lowers the water table,
which reduces water availability to streambank vegetation, and stream shallowing
degrades native fish habitats. [Phillip J. Howell, Effects of Disturbance and
Management of Forest Health on Fish and Fish Habitat in Eastern Oregon and
Washington. 75 Nw. Science 157 (2001); S. M. Wondzell, The Influence of Forest
Health and Protection Treatments On Erosion and Stream Sedimentation In
Forested Watersheds of Eastern Oregon and Washington 75 Nw. Sci. 128 (2001)].
Widening of the channel also results in an increase of stream surface area which
also leads to an increase in temperature.
Water Specialist Report at 7 (AR 005568)(brackets added). The Water Specialist Report provides
information on how the Gila Cows, in particular, over-graze and damage the Gila Wilderness’
waterways:
Negative impacts to riparian areas in the project area due to livestock
grazing have been documented. The persistence of livestock would result in
continued long-term resource damage to riparian resources where they congregate,
similar to the 2020 observations by Forest personnel. Bank trampling, trailing,
wallowing, and browsing of riparian woody and herbaceous[42] vegetation would
42
ground.”
“Herbaceous plants are vascular plants that have no persistent woody stems above
Herbaceous
plant,
Wikipedia,
available
at
- 63 -
continue along the Gila River and its riparian corridor, particularly during hotter
and drier months, as this may be their only water source. Loss of deeply rooted
riparian species often results in accelerated bank erosion during high flow events.
Upland herbaceous vegetation on benches adjacent to the Gila River would
continue to see high use from unauthorized livestock.
Water Specialist Report at 7-8 (AR 005568-69). The Water Specialist Report documents the
“2020 observations by Forest personnel” with a series of photographs from the field visit:
https://en.wikipedia.org/wiki/Herbaceous_plant (last visited November 4, 2024). Vascular plants
are plants with specialized tissues that conduct water, minerals, and organic materials throughout
the
plant.
See
Vascular
plant,
Wikipedia,
available
at
https://en.wikipedia.org/wiki/Vascular_plant (last visited November 4, 2024).
- 64 -
The Water Specialist Report also describes the current state of the Gila Wilderness’ waterways
and how removal of riparian vegetation would exacerbate the situation:
Water quality in the Gila River and Turkey Creek within the project area is
currently temperature impaired. Water temperature is an important physical
parameter, which can determine the overall health of aquatic ecosystems. Research
has shown that shading of streams by riparian vegetation can reduce stream
temperatures by as much as 18°F as well as reducing the daily and seasonal
variation in temperature that would occur if the stream were unshaded. This
variation is particularly important during low flows in summer, because unshaded
streams can become so warm that many invertebrates and fish are badly stressed or
killed . . . . In wider rivers, riparian shading is less significant, but water
temperatures may be governed by runoff and by warming on exposed floodplains.
The most effective known method to reduce surface water temperature is to
increase effective shade in areas where trees have been removed . . . .
Water Specialist Report at 8 (AR 00556)(citations omitted and ellipses added). The Water
Specialist Report separately notes that riparian vegetation filters sediment before it enters the
water, further protecting water quality. See Water Specialist Report at 8 (AR 00556). In sum, the
Water Specialist Report details extensively how over-grazing upsets the delicate balance of the
Gila Wilderness’ riparian systems, because grazing cattle physically damage stream banks and
remove shading vegetation, thereby increasing water temperature and threatening aquatic wildlife.
See Water Specialist Report at 7-8 (AR 005568-69).
The Water Specialist Report also does not ignore the threat that rotting carcasses pose to
the Gila Wilderness’ waterways. See Water Specialist Report at 9 (AR 005570). These carcasses,
if left near waterways, increase nitrogen and phosphorus levels, and decrease dissolved oxygen in
the immediate vicinity as bacteria and other microorganism that decompose the carcasses consume
extra oxygen. See Water Specialist Report at 9 (AR 005570). Additionally, a cow carcass may
increase the presence of cryptosporidium -- a parasite that, when consumed, causes diarrhea,
vomiting, and nausea -- in the water. See Water Specialist Report at 9 (AR 005570). The Water
- 65 -
Specialist Report concludes, however, that these negative impacts would be short-lived while the
carcass decomposes and diluted over time and distance in running waterways. See Water
Specialist Report at 9 (AR 005570). Moreover, removing any carcasses from waterways would
mitigate these health and ecological risks. See Water Specialist Report at 9 (AR 005570).
The Water Specialist Report concludes that the Aerial Shooting “poses a higher benefit
over the long-term for riparian resources and water quality versus” not removing the Gila Cows at
all. Water Specialist Report at 10 (AR 005571). In short, removing the Gila Cows en masse
improves the Gila Wilderness’ riparian conditions: absent severe over-grazing and hoof trampling,
riparian vegetation flourishes, stream channel conditions recover, and floodplains stabilize. See
Water Specialist Report at 8-9 (AR 005669-70). Vigorous riparian vegetation and well-maintained
stream channels and floodplains improve the shading and filtration of the Gila Wilderness’
waterways, which lowers water temperature, protects water quality, and, ultimately, benefits the
diverse species that inhabit these waterways. See Water Specialist Report at 8-9 (AR 005669-70).
Accordingly, the Water Specialist Report states that the Aerial Shooting will improve the project
area’s wetlands, rather than damaging them. See Water Specialist Report at 9 (AR 00570). The
Water Specialist Report concludes that, given that “there are no anticipated changes to floodplain
function,” and that “there are no designated municipal watersheds associated with” the project
area, “[t]here are no extraordinary circumstances regarding floodplains, wetlands, or municipal
watersheds.” Water Specialist Report at 9-10 (AR 00570-71).
Regarding the third identified resource condition -- Congressionally designated areas such
as wilderness, wilderness study areas, or national recreation areas -- the Forest Service
acknowledges that the scoping comments identify the Aerial Shooting’s helicopter use as an
extraordinary circumstance. See Decision Memo. at 12 (AR 005910); Cattle Growers Comments
- 66 -
at 17 (AR 005000)(“Congress has already determined that use of motorized or mechanical
equipment negatively impact wilderness areas and has prohibited their use.”)(citing
16 U.S.C. § 1133(c)); 43 Shirley Comments at 18 (AR 005333)(same). The Decision Memo.
implies that, because the Aerial Shooting does not involve a helicopter landing in the Gila
Wilderness, the action does not violate the Wilderness Act’s provisions barring helicopter use:
The use of helicopters in wilderness was cited in scoping comments as an
extraordinary
circumstance.
Section
4(c)
of
the
Wilderness
Act[, 16 U.S.C. § 1133(c),] prohibits the landing of aircraft within designated
wilderness, whether helicopter or fixed wing. The proposed action does not include
nor does this decision authorize the landing of helicopters in wilderness.
Decision Memo. at 12 (AR 00510). The Forest Service states that it conducted a minimum
requirements analysis, 44 which: (i) analyzes sufficiently the helicopter’s impact; and (ii) concludes
that the Aerial Shooting is the “minimum tool necessary to protect wilderness character and
43
16 U.S.C. § 1133(c) provides:
Except as specifically provided for in this chapter, and subject to existing private
rights, there shall be no commercial enterprise and no permanent road within any
wilderness area designated by this chapter and, except as necessary to meet
minimum requirements for the administration of the area for the purpose of this
chapter (including measures required in emergencies involving the health and
safety of persons within the area), there shall be no temporary road, no use of motor
vehicles, motorized equipment or motorboats, no landing of aircraft, no other form
of mechanical transport, and no structure or installation within any such area.
16 U.S.C. § 1133(c).
An agency may conduct a minimum requirements analysis to “evaluate actions proposed
in wilderness involving a use otherwise prohibited by the Wilderness Act, [Section 4(c),
16 U.S.C. § 1133(c)].” Minimum Requirements Analysis Framework: Gila Wilderness - Unauthorized Cattle Removal at 1 (dated January 9. 2023), Gila National Forest
(AR 005966)(“Minimum Requirements Analysis”). A minimum requirements analysis is
“designed to examine whether a project truly needs to occur in wilderness, and if so, how to
accomplish it with the least impact to the wilderness resource.” Minimum Requirements Analysis
at 1 (AR 005934).
44
- 67 -
address the feral cattle issue.” Decision Memo. at 12 (AR 005910). See Minimum Requirements
Analysis Framework: Gila Wilderness -- Unauthorized Cattle Removal at 33 (dated January 9.
2023), Gila National Forest (AR 005966)(“Minimum Requirements Analysis”). The Minimum
Requirements Analysis has two sections.
See Minimum Requirements Analysis at 1-36
(AR 005934-69). First, the Minimum Requirements Analysis evaluates whether removing the
Gila Cows is necessary. See Minimum Requirements Analysis at 2-8. Here, the Forest Service
concludes that they must remove the Gila Cows to maintain two of the five wilderness
qualities: 45Natural Quality, and Outstanding Opportunities for Solitude or Primitive and
Unconfined Recreation Quality. Regarding the first quality, the Minimum Requirements Analysis
45
The Forest Service defines the five wilderness character qualities:
(1) The Untrammeled Quality of wilderness character monitors authorized actions
that intentionally manipulate or control ecological systems, (2) The Natural Quality
of wilderness character encompasses all naturally occurring biological and physical
elements of wilderness: plant and animal species and communities, soil, air, and
water. This quality also includes the interactions among these elements and the
resulting ecological processes or functions that occur in wilderness, (3) The
Undeveloped Quality of wilderness character means wilderness retains its primeval
character and influence and is essentially without permanent improvement or
modern human occupation, such as structures and installations, as well as the use
of motor vehicles, motorized equipment, and mechanical transport, (4) The
Outstanding Opportunities for Solitude and Primitive and Unconfined Recreation
Quality means that visitors are free from encountering other visitors, and free from
the sights and sounds of modern civilization, and that visitors require self-reliance,
and skills in wilderness travel. It encompasses the sense of discovery, adventure,
and mental challenge where one can travel and explore unique and unknown
environments on one’s own, (5) The Other Features of Value Quality centers on
unique and tangible features of a wilderness that are integral to the wilderness
character of that place.
Phillip Walrod and Kyle Grambley, Feral Livestock Removal Gila National Forest:
Wilderness Resource Report at 3, Gila National Forest, Wilderness Ranger District
(AR 005741)(“Wilderness Resource Report”).
- 68 -
asserts that the Gila Cows’ over-grazing and trampling near waterways degrades riparian habitats
and damages federally listed species’ habitats, including those of the narrow-headed gartersnake,
Gila trout, Mexican spotted owl, and Mexican gray wolf. See Minimum Requirements Analysis
at 5 (AR 005938). Regarding the second quality, the Minimum Requirements Analysis states:
“Feral Cattle presence in wilderness affects visitors [sic] experience by their mere existence. A
reminder for modern civilization, feral cattle hinder the visitors sense of discovery. In addition,
where cattle are present, they produce trails in and out of riparian zones creating multiple trail
braiding along system trails, and piles of manure.” Minimum Requirements Analysis at 5
(AR 005938). The Minimum Requirements Analysis also asserts that the Gila Cows must be
removed, because the Endangered Species Act requires it, given that the Gila Cows’ damage to
riparian areas threatens several endangered or threatened species, including the narrow-headed
gartersnake, Gila Trout, Gila chub, loach minnow, spikedace, and Southwestern willow flycatcher.
See Minimum Requirements Analysis at 7 (AR 005940).
In the second section, the Minimum Requirements Analysis evaluates three 46 ways to
remove the Gila Cows: (i) using horse mounted livestock handlers -- after scouting the areas with
The Minimum Requirements Analysis also identifies three additional alternatives that are
“considered but dismissed,” Minimum Requirements Analysis at 31 (AR 005964), and explains
why the Forest Service dismissed each option. These three options are: (i) helicopter herding, with
horse mounted livestock handlers assisting; (ii) public hunting; and (iii) sterilizing the Gila Cows.
See Minimum Requirements Analysis at 31 (AR 005964). The Forest Service’s prior attempt at
helicopter herding was not successful, because “the horse mounted livestock handlers were unable
to keep up with the speed of the helicopter,” and “the helicopter spooked the feral cattle[,] causing
a stampede.” Minimum Requirements Analysis at 31 (AR 005964). The public hunt option “was
not analyzed because Forest Service policy dictates that the state agency has jurisdiction over the
implementation of public hunts on federal land.” Minimum Requirements Analysis at 31
(AR 005964). The sterilization option, which involves injecting female Gila Cows with an
immunocontraceptive or “castrating the bulls through banding” is “deemed ineffective,” because
the Forest Service would have to capture all the Gila Cows of one gender before sterilizing them.
Minimum Requirements Analysis at 31 (AR 005964).
46
- 69 -
a low-flying helicopter -- to wrangle the Gila Cows and euthanize as needed; (ii) shooting the Gila
Cows from a low-flying helicopter -- i.e., the Aerial Shooting; and (iii) using a system of corrals
to contain and herd the Gila Cows after scouting the areas with a low-flying helicopter. See
Minimum Requirements Analysis at 16-30 (AR 005949-63). For each option, the Forest Service
describes how it intends to perform the action and how the action will impact each of the five
wilderness qualities. See Minimum Requirements Analysis at 16-30 (AR 005949-63). Regarding
the Aerial Shooting’s impact, the Minimum Requirements Analysis notes that the helicopter may
harm: (i) the Undeveloped Quality if it needs to land in the wilderness “for some unforeseen issue”;
(ii) the Natural Quality if it “negatively affect[s] behavior of elk, deer, or other wildlife due to
disturbance”; and (iii) the Outstanding Opportunities for Solitude and Primitive and Unconfined
Recreation Quality, because the Forest Service would close the project area, and anyone near the
project area may hear the “sights and sounds of the low flying helicopters.”
Minimum
Requirements Analysis at 23-24 (AR 00596-97). The Minimum Requirements Analysis also
asserts, however, that the other two options -- using horse mounted livestock wranglers or building
corral systems -- also will require a helicopter to scout the locations. See Minimum Requirements
Analysis at 18-19 (AR 005951-52). For the first option, the wranglers may also need to install
temporary installations to contain the Gila Cows as they are captured, further diminishing the Gila
Wilderness’ Undeveloped Quality.
See Minimum Requirements Analysis at 18-19; 28-29
(AR 005951-52; AR 005961-62). For the third option, the corral systems would also further
diminish the Gila Wilderness’ Undeveloped Quality, because the corrals last many decades and
“make it easier for people in the future to impose their will on the environment,” and would require
“user created path[s] to the stream[s]” so that the captured cattle could access water while they are
impounded. Minimum Requirements Analysis at 29 (AR 005962).
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The Minimum Requirements Analysis concludes that the Aerial Shooting is the “minimum
action necessary to accomplish the removal of feral cattle,” because it is the shortest and most
effective option. Minimum Requirements Analysis at 33 (AR 005966). Although the Aerial
Shooting’s impact on the Undeveloped and Outstanding Opportunities for Solitude and Primitive
and Unconfined Recreation Qualities is “severe,” Minimum Requirements Analysis at 33
(AR 005966), it is short-lived, see Minimum Requirements Analysis at 33 (AR 005966). While
the other two options may take six months, the Aerial Shooting is expected to last only a few
weeks, including both reconnaissance and shooting flights. See Minimum Requirements Analysis
at 33 (AR 005966).
Moreover, the Forest Service expects that the Aerial Shooting will
successfully remove enough Gila Cows in one event, whereas the other two options “would have
to be repeated year after year for several years until fully successful.” Minimum Requirements
Analysis at 33 (AR 005966). In sum, the Forest Service considers the project area’s wilderness
designation as a possible extraordinary circumstance, and, after conducting a Minimum
Requirements Analysis, concludes that there are no extraordinary circumstances related to this
third resource condition because: (i) removing the Gila Cows improves the project area’s
wilderness character; and (ii) the Aerial Shooting is the minimal tool to achieve this goal. See
Decision Memo. at 12 (AR 005910); Minimum Requirements Analysis at 1-36 (AR 005934-69).
The Decision Memo. moots the fourth resource condition -- inventoried roadless areas or
potential wilderness areas -- by noting that no inventoried roadless areas or potential wilderness
areas are found within the project area. See Decision Memo. at 12 (AR 005910). The fifth
resource condition -- research natural areas -- also does not concern the Forest Service, because
only the Turkey Creek Research Natural Area is within the project area. See Decision Memo. at
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12 (AR 005910). The Forest Service asserts that removing the Gila Cows improves rather than
degrades the area. See Decision Memo. at 12 (AR 005910).
Regarding the sixth resource condition -- American Indians and Alaska Native religious or
cultural sites, the Decision Memo. states that the Forest Service mailed a government-togovernment consultation 47 letter to fourteen tribal governments, and that the responses received
indicate that the “proposed action would have no adverse effect on the tribe’s cultural heritage
resources and/or historic properties.” Decision Memo. at 12 (AR 005910). The Forest Service
mailed nearly identical letters to the Alamo Navajo Chapter, Comanche Nation of Oklahoma, Fort
Sill Apache Tribe, Pueblo of Acoma, Pueblo of Isleta, Pueblo of Laguna, Pueblo of Zuni, Ramah
Navajo Chapter, San Carlos Apache Tribe, Hopi Tribe, Navajo Nation, White Mountain Apache
Tribe, and Ysleta del Sur Pueblo. See Gila National Forest, U.S. Forest Service, Scoping Mailing
List -- Tribal at 1 (dated November 8, 2022)(AR 004268); Letter from Camille Howes to President
Robert Aguilar, Mescalero Apache Tribe Re: at 1-4 (dated November 18, 2022)(AR 004298-
47
The Interior Department states:
A Tribal consultation is a formal, two-way, government-to-government
dialogue between official representatives of Tribes and Federal agencies to discuss
Federal proposals before the Federal agency makes decisions on those proposals.
The Federal agency provides sufficient advance notice to appropriate Tribal leaders
of upcoming consultation sessions and, following the consultation sessions,
explains to those Tribal leaders how the final agency decision incorporates Tribal
input.
What is Tribal Consultation?, U.S. Department of the Interior, Bureau of Indian Affairs,
available
at
https://www.bia.gov/service/tribal-consultations/what-tribalconsultation#:~:text=A%20Tribal%20consultation%20is%20a%20formal%2C%20twoway%2C%20government-togovernment,the%20Federal%20agency%20makes%20decisions%20on%20those%20pro
posals (last visited October 29, 2024).
- 72 -
301)(“Mescalero Apache Tribe Consultation Letter”). Much like the Scoping Letter, these letters
outline the Aerial Shooting’s motivations and scope, reference the Forest Service’s legal authority
to conduct the shoot, and provide a map that defines the project area. See Mescalero Apache Tribe
Consultation Letter at 1-4 (AR 004298-301). The letters also contextualize the correspondence by
referencing several regulations, including 36 C.F.R. § 800, 48 Executive Orders 13175 49 and
13007, 50 Forest Service Manual § 1560, 51 and Forest Service Handbook § 1509.13, 52 that compel
the Forest Service to evaluate its actions’ cultural resource impacts and engage in formal tribal
consultation. See Mescalero Apache Tribe Consultation Letter at 1 (AR 004298). Of the fourteen
consulted tribes, three of them responded. See Letter from Mark T. Altaha to Camille Howes Re:
The regulation provides, in relevant part, that “Indian tribes and Native Hawaiian
organizations,” 36 C.F.R. § 800.1(c)(2), have “consultive roles,” 36 C.F.R. § 800.1(c), when
agencies evaluate “the effects of their undertakings on historic properties,” 36 C.F.R. § 800.1(a).
48
The Executive Order details an “accountable process to ensure meaningful and timely
input by tribal officials in the development of regulatory polices,” where agencies must consult
with tribal before promulgating rules that affect tribal resources and sovereignty. Executive Order
No. 13175 § 5, 65 Fed. Reg. 67249 (November 6, 2000).
49
To “accommodate access to and ceremonial use of Indian sacred sites by Indian religious
practitioners and [] avoid adversely affecting the physical integrity of such sacred sites,” federal
agencies must, inter alia, implement “procedures to ensure reasonable notice is provided of
proposed actions or land management policies that may restrict future access to or ceremonial use
of, or adversely affect the physical integrity of, sacred sites.” Executive Order No. 13007 §§ 1-2,
61 Fed. Reg. 26771 (May 24, 1996).
50
The Forest Service Manual says that “determinations as to when a Federal action may
have a substantial direct effect on an Indian tribe’s interests may be defined by the Indian tribe’s
perspective,” and that a federal agency should consult with potentially affected Indian tribes if
there are questions whether the agency’s policy will have a substantial direct effect. Forest Service
Manual § 1563.01c. In this same section, the Forest Service Manual also identifies twelve laws
and regulations that govern agency consultation with Indian Tribes. See Forest Service Manual
§ 1563.01c.
51
The Forest Service Handbook outlines consultation protocols, including which Forest
Service employees may consult with tribes, when the consultation should occur, and what forms
it can take. See Forest Service Handbook § 1509.13.
52
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Proposed Removal of Feral Cattle on the Gila Wilderness -- Gila National Forest at 1 (dated
December 13, 2022)(AR 004575)(“White Mountain Apache Tribe Response”); Tribal
Consultation Response Letter at 1 (dated November 29, 2022)(signed December 8 and 22, 2022),
San Carlos Apache Tribe (AR 004682)(“San Carlos Apache Tribe Response”) Email from Omar
Villanueva to Belinda Mollard Re: Proposal to Conduct Feral Cattle Removal from Gila
Wilderness at 1-2 (dated January 5, 2024)(AR 004977-78)(“Ysleta del Sur Pueblo Response”).
Both the White Mountain Apache Tribe and the San Carlos Apache Tribe say that the Aerial
Shooting will have no adverse effect on cultural and historic resources. See White Mountain
Apache Tribe Response at 1 (AR 004575); San Carlos Apache Tribe Response at 1 (AR 004682).
Although the Ysleta del Sur Pueblo does not oppose the Aerial Shooting, they say that they are
“hopeful that this proposal is handled in the best humanly [sic] way possible,” and request that
“some of the tribes be able to maybe go collect any hides or parts of the downed cattle.” Ysleta
del Sur Pueblo Response at 1 (AR 004977). The Ysleta del Sur Pueblo also asserts that they
“would not like to consult Government-to-Government.” Ysleta del Sur Pueblo at 1 (AR 004977).
Regarding the seventh resource condition -- archaeological sites, or historic properties or
areas -- the Decision Memo. states that the Aerial Shooting does not involve any ground-disturbing
activities and that any temporary corrals will be located outside designated wildness in consultation
with an archaeologist. See Decision Memo. at 12 (AR 005910). The Forest Service also asserts
that the district archaeologist determined that the Aerial Shooting will have no adverse effect on
cultural resources and that the Animal Inspection Service will avoid shooting Gila Cows near
known culturally sensitive locations. See Decision Memo. at 12 (AR 005910). See also Email
from Chris Adams to Jeffrey Shearer, cc’ed Aimee Oliver Re: Archaeological Clearance for the
Removal
of
Livestock
From
the
Gila
Wilderness
- 74 -
at
1
(dated
January
30,
2023)(AR 005560)(“District
Archaeologist
Clearance
Email”)(Forest
Service
archaeologist)(explaining that there is “no impact to cultural resources when shooting from a fixed
aircraft” and granting archaeological clearance for the Aerial Shooting); Letter from Geoff Cunnar
to Henry Provencio Re: HPD Log 118508, Gila National Forest Proposal to Conduct Feral Cattle
Removal from the Gila Wilderness at 2 (dated December 5, 2022)(AR 004519)(“SHPO Comment
Letter”)(New Mexico Cultural Affairs Department staff archaeologist)(thanking the Forest Service
for “asking the State Historic Preservation Office (SHPO) to comment” on the Aerial Shooting
proposal and requesting that the Forest Service consult with SHPO “[i]f there is a need for any offroad staging areas that could possibly result in disturbance to cultural resources”).
To summarize, the Decision Memo. concludes that the Aerial Shooting is excluded
categorically from the NEPA’s requirement that the Forest Service produce an EA or an EIS,
because at least one categorical exclusion applies, and there are no extraordinary circumstances.
See Decision Memo. at 8-12 (AR 005906-10). The Forest Service identifies three applicable CEs:
(i) civil and criminal enforcement and investigative activities under 7 C.F.R. § 1b.3(a)(5);
(ii) timber stand and/or wildlife habitat improvement activities under 36 C.F.R. § 220.6(e)(6); and
(iii) short-term resource or public health and safety protection under 36 C.F.R. § 220.6(d)(1). See
Decision Memo. at 8-9 (AR 005906-07). The Forest Service then evaluates the seven requisite
resource conditions to determine that no extraordinary circumstances exist. See Decision Memo.
at 9-12 (AR 005907-10). These resource conditions are: (i) threatened, endangered, or sensitive
species, and/or designated or proposed critical habitats; (ii) flood plains, wetlands, or municipal
watersheds; (iii) Congressionally designated areas such as wilderness, wilderness study areas, or
national recreation areas; (iv) inventoried roadless areas or potential wilderness areas; (v) research
natural areas; (vi) American Indians and Alaska Native religious or cultural sites; and
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(vii) archaeological sites, or historic properties or areas. See Decision Memo. at 9-12 (AR 00590710). The Forest Service analyzes each condition and prepares supplemental materials to conclude
that the Aerial Shooting does not affect the resource condition enough such that extraordinary
circumstances exist.
See Decision Memo. at 9-12 (AR 005907-10); Mexican Gray Wolf
Biological Assessment at 1-10 (AR 005548-57); Miscellaneous Biological Assessment at 1-57
(AR 005680-736); Water Specialist Report at 1-11 (AR 005562-72); Minimum Requirements
Analysis at 1-36 (AR 005934-69); Mescalero Apache Tribe Consultation Letter at 1-4
(AR 004298-301); White Mountain Apache Tribe Response at 1 (AR 004575); San Carlos Apache
Tribe Response at 1 (AR 004682); Ysleta del Sur Pueblo Response at 1-2 (AR 004977-78); District
Archaeologist Clearance Email at 1 (AR 005560); SHPO Comment Letter at 1-3 (AR 004518-20).
iv.
The Scoping Responses.
The Forest Service includes, attached as Appendix B to the Decision Memo., seventeen
pages of responses to comments it received during the public scoping for the Aerial Shooting. See
Scoping Responses at 1-17 (AR 005917-33). First, the Scoping Responses consider and dismiss
several alternative operations that commenters proposed.
See Scoping Responses at 1-4
(AR 005917-20). Next, the Scoping Responses evaluate concerns that the commenters raise
regarding the Aerial Shooting. See Scoping Responses at 4-17 (AR 005920-33). The Court
discusses each set of responses in turn.
(1)
The Forest Service Addresses Comments Proposing
Alternative Removal Operations.
Responding to many comments asking the Gila Forest to donate “edible portions of cattle
that are lethally removed to a local food bank, charity, or family support services,” the Forest
Service asserts that: (i) the logistics of removing thousands of pounds of meat from the Gila
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Wilderness in a way that adheres to safe food handling standards are “daunting,” Scoping
Responses at 1 (AR 005917); and (ii) because it is not feasible to have a licensed meat inspector
on site during the Aerial Shooting, the Gila Cow meat, even if recovered safely and quickly, would
not meet the Federal Meat Inspection Act, 21 U.S.C. §§ 601 -- 695 (“FMIA”), safety standards,
which require federal inspection personnel to be “‘present at all times during livestock slaughter
operations,’” Scoping Responses at 2 (AR 005918)(quoting 53 Inspection of Meat Products, U.S
Department
of
Agriculture,
Food
Safety
and
Inspection
Service,
available
at
https://www.fsis.usda.gov/inspection/inspection-programs/inspection-meat-products (last visited
October 31, 2024)), for meat that is “donated to non-profit organizations, such as charitable
institutions, food banks, and government-supported facilities,” Scoping Responses at 2
(AR 005918)(citing 21 U.S.C. § 673(a)(5)(A) 54 and 21 U.S.C. § 467b(a)(5)(A) 55).
Some
commenters also request that the Forest Service permit the public to salvage the Gila Cow meat
themselves. See Scoping Responses at 2 (AR 005918). The Forest Service rejects this proposal
because, given that the project area will be closed during the Aerial Shooting, the public would
not be able to recover the carcass meat quickly enough to ensure safe consumption, even on an
individual basis. See Scoping Responses at 2 (AR 005918). Many commenters also propose a
Although this quotation in the Scoping Responses is uncited, it is identical to language
found on the Agriculture Department website.
53
21 U.S.C. § 673(a)(5)(A) says that the United States may condemn and donate any meat
product derived from cattle sheep, swine, goats, horses, mules, or other equines that violates the
FMIA’s safety standards, provided that the product: (i) “has been inspected under this chapter and
found to be wholesome and not to be adulterated”; and (ii) “is plainly marked ‘Not for Sale.’”
21 U.S.C. § 673(a)(5)(A).
54
21 U.S.C. § 467b(a)(5)(A)
has
the
same
inspection
requirements
21 U.S.C. § 673(a)(5)(A), but for donated poultry products. See 21 U.S.C. § 467b(a)(5)(A).
55
- 77 -
as
public hunt of the Gila Cows. See Scoping Responses at 2 (AR 005918). The Forest Service
dismisses this alternative because the New Mexico Department of Game and Fish -- rather than
the Forest Service -- has the authority to “designate limited seasons and harvest for wildlife
classified as game animals, nongame animals, furbearers, and unprotected wildlife.” Scoping
Responses at 2 (AR 005918). Moreover, the Forest Service asserts that the Gila Cows do not fall
into any of those categories. See Scoping Responses at 2 (AR 005918). Other commenters
propose restocking vacant allotments within and adjacent to the Gila Wilderness so that grazing
permittees can handle the Gila Cow situation. See Scoping Responses at 2 (AR 005918). The
Forest Service dismisses this alternative as too challenging and ineffective.
See Scoping
Responses at 2-3 (AR 005918-19). Most of the Gila Cows inhabit areas that have not been
authorized for grazing since the 1950s, and other vacant allotments within and adjacent to the Gila
Wilderness may not be suitable for grazing. See Scoping Responses at 3 (AR 005919). Managing
a grazing allotment requires a permittee to maintain range infrastructure, which floods and fires
can damage. See Scoping Responses at 3 (AR 005919). A grazing allotment in the remote areas
where the Gila Cows roam is much more difficult to maintain, and the Forest Service already
dedicates significant resources to repairing range infrastructure that the 2022 Black Fire 56
damaged. See Scoping Responses at 3 (AR 005919). The Forest Service also dismisses a proposal
to construct permanent corrals at the confluence of Sapillo Creek and the Gila River, and at Fall
River Canyon, to use contractors to herd cattle to those corrals, hold the cattle until they acclimate
The 2022 Black Fire was a massive wildfire that began in May, 2022, and blackened over
325,000 acres of state, private, and Gila National Forest lands in 2022. See On the road to Black
Fire recovery (dated October 24, 2023), U.S. Forest Service, available at
https://www.fs.usda.gov/detail/gila/news-events/?cid=FSEPRD1148051 (last visited October 31,
2024).
56
- 78 -
to human presence, and then herd the now-trained Gila Cows out of the Gila Wilderness. See
Scoping Responses at 3 (AR 005919). The Forest Service says that it considered this alternative
in the Minimum Requirements Analysis, and concluded that permanent corrals are more impactful
on the area’s wilderness character than the Aerial Shooting. See Scoping Responses at 3-4
(AR 005919-20). Although corrals may have been located at these locations many decades ago
(prior to the 1970s), their construction as permanent installations would also require an EIS. See
Scoping Responses at 4 (AR 005920). The Forest Service also dismisses the less impactful corral
construction alternative -- building temporary corrals at the proposed locations and tearing them
down at the end of each gather effort. See Scoping Responses at 4 (AR 005920). While this
alternative might remove some Gila Cows along the Gila River, it does not address all the Gila
Cows in the rest of the project area. See Scoping Responses at 4 (AR 005920). Finally, the Forest
Service dismisses a proposal to sterilize the Gila Cows, because this operation would not remove
Gila Cows currently in the Gila Wilderness who are actively damaging riparian ecosystems. See
Scoping Responses at 4-5 (AR 005920-21).
(2)
The Forest Service Defends the Aerial Shooting.
In analyzing public concerns about the Aerial Shooting, the Forest Service repeats many
of its arguments in the Decision Memo and in other supporting materials, as this Memorandum
Opinion already discusses. The Forest Service says it is authorized to shoot and kill the Gila Cows,
because: (i) the animals are not “unauthorized livestock,” 36 C.F.R. § 262.10, which can be
gathered and impounded only in accordance with 36 C.F.R. § 262.10; and (ii) the Forest Service
is authorized to manage and remove invasive species. See Scoping Responses at 4-7 (AR 00592023). The Scoping Responses assert that the Aerial Shooting does not violate the June, 2022,
Stipulation, because the Forest Service notified the relevant parties of the Aerial Shooting as early
- 79 -
as November 22, 2022, which was more than seventy-five days before the operation was set to
begin. See Scoping Responses at 7-8 (AR 005923-24). The Forest Service states that the Aerial
Shooting does not violate the NEPA any of the four ways that the commenters allege: (i) not
identifying an applicable CE; (ii) not providing information on the Animal Inspection Service’s
decision-making process; (iii) not providing information on population estimates and resource
damage; and (iv) presupposing that the Aerial Shooting will proceed under a CE regardless of
public comment. See Scoping Responses at 8-10 (AR 005924-26). Regarding the first alleged
NEPA violation, the Scoping Responses say that, under 36 C.F.R. § 220.6(f)(2), the Forest Service
must identify an applicable CE in its decision memo, not in the scoping letter. See Scoping
Responses at 8 (AR 005924). The Scoping Letter says that a CE might be used, and the Decision
Memo. identifies three CEs. See Scoping Responses at 8 (AR 005924); Decision Memo. at 8-9
(AR005906-07). The Forest Service asserts that, accordingly, the Scoping Letter’s failure to
identify any specific CE does not violate the NEPA. See Scoping Responses at 8 (AR 005924).
Regarding the second alleged NEPA violation, the Forest Service says that the Animal Inspection
Service “will determine the appropriate level of NEPA analysis” based on its own procedures after
“all of the required documentation and authorization from the U.S. Forest Service and other
Cooperating Agencies has been received.” Scoping Responses at 9 (AR 005925). The Scoping
Responses also include a link to the Animal Inspection Service’s NEPA compliance procedures,
which are codified under 7 C.F.R. § 372. See 7 C.F.R. § 372. Regarding the third alleged NEPA
violation, the Forest Service says that the Scoping Letter provides sufficient background
information on the Gila Cow situation. See Scoping Responses at 9 (AR 005924). The Scoping
Responses also provide more information related to the Gila Cows’ resource damage -- and
reference supporting materials in the project file -- and describe how the Forest Service has
- 80 -
estimated the Gila Cow population by conducting aerial reconnaissance and private gather
operations between October, 2021, and December, 2022.
See Scoping Responses at 9
(AR 005924).
Regarding the fourth alleged NEPA violation, the Forest Service asserts that it “was not
pre-decisional in its determination that categorical exclusion would likely be used” and that
preparing a signed decision memo with supporting documentation was a necessary precondition
for any final action related to Gila Cow removal. Scoping Responses at 10 (AR 005925). The
Scoping Responses also address separately an allegation that the “Forest Service cannot proceed
under a CE because extraordinary circumstances exist,” Scoping Responses at 12 (AR 005928),
based on several resource conditions, including the presence of endangered species, flood plains
and wetlands, and Congressionally designated wilderness areas in the project area, see Scoping
Responses at 12-13 (AR 005928-29). Without a cause-effect relationship between a proposed
agency action and an effect on the identified resource conditions, the Forest Service may determine
that no extraordinary resource circumstances exist. See Scoping Responses at 13 (AR 005929).
The Scoping Responses assert that the Forest Service analyzed several resource conditions and
determined that “the no action alternative (i.e. not removing feral cattle) has a greater impact on
water quality and wilderness character than the proposed action and [that] no cause-effect
relationship exists.” Scoping Responses at 13 (AR 005928).
The Scoping Responses also address concerns related to the Aerial Shooting’s impacts on
the Mexican gray wolf -- i.e., the Aerial Shooting may increase wolf-livestock conflict -- and the
Gila Wilderness’ water quality -- i.e., rotting cattle carcasses may contaminate riparian areas. See
Scoping Responses at 10-12 AR 005926-28). These sections also mirror many of the Forest
Service’s arguments made in the Decision Memo. and its supporting materials. See Scoping
- 81 -
Responses at 10-12 AR 005926-28). Regarding the Mexican gray wolf issue, the Scoping
Responses assert that no relationship between the Aerial Shooting and a change in Mexican gray
wolf feeding behavior has been established, the Aerial Shooting’s short duration mitigates
concerns regarding wolf-livestock conflicts, and the Fish and Wildlife Service -- which the
Scoping Responses quote at length -- found that the Aerial Shooting is unlikely to jeopardize the
Mexican gray wolf’s continued existence. See Scoping Responses at 10-11 (AR 005926-27).
Regarding the water quality issue, the Scoping Responses state that the Water Specialist Report
finds that the “the long-term detrimental impacts of feral cattle to the riparian areas of the Gila
Wilderness greatly outweighs any short-term potential concerns over carcasses contaminating
water quality,” Scoping Responses at 11 (AR 005927), and that the Forest Service will remove
any cattle carcasses in or near a waterway, see Scoping Responses at 11-12 (AR 005927-28).
The Scoping Responses also address concerns that the Aerial Shooting is otherwise
unlawful, because the Forest Service violates: (i) the Freedom of Information Act, 5 U.S.C. § 552
(“FOIA”), because the Forest Service has not produced documents in response to a FOIA request
that the Cattle Growers filed on February 22, 2022; (ii) the Wilderness Act, because the Forest
Service may not use helicopters in the Gila Wilderness; and (iii) New Mexico animal cruelty law,
N.M.S.A. § 30-18-1 (J), because the Aerial Shooting will cause inhumane deaths and is contrary
to commonly accepted agricultural animal husbandry practices. See Scoping Responses at 10
(AR 005926), id. at 12, (AR 005928), id. at 13-14 (AR 005930). Regarding the alleged FOIA
violation, the Scoping Responses acknowledge that, on February 22, 2022, the Cattle Growers
filed a FOIA request with both the Forest Service and the Animal Inspection Service, requesting
“all documentation related to the decision memo authorizing the 2022 aerial livestock gunning.”
Scoping Responses at 10 AR 005926). The Scoping Responses note, however, that, on April 5,
- 82 -
2022, the Forest Service informed counsel that the “request was in the queue awaiting processing”
and that the Cattle Growers responded to the Forest Service’s suggestion that the Cattle Growers
“reduce the scope of the request to shorten the processing time.” Scoping Responses at 10
AR 005926). Regarding the alleged Wilderness Act violation, the Scoping Responses point to the
Minimum Requirements Analysis, which finds that the Aerial Shooting does not violate the
Wilderness Act, because the Forest Service will not land the helicopter in the Gila Wilderness, and
the alternative actions -- including no action -- are more invasive than the Aerial Shooting. See
Scoping Responses at 12 (AR 005928). Regarding the animal cruelty issue, New Mexico law
prohibits “negligently mistreating, injuring, killing without lawful justification or tormenting an
animal.” N.M.S.A. § 30-18-1(B). “Lawful justification” means “humanely destroying a sick or
injured animal,” or “protecting a person or animal from death or injury due to an attack by another
animal.” N.M.S.A. § 30-18-1(C).
N.M.S.A. § 30-18-1 does not apply to “the treatment of
livestock and other animals used on farms and ranches for the production of food, fiber or other
agricultural products, when the treatment is in accordance with commonly accepted agricultural
animal husbandry practices,” N.M.S.A. § 30-18-1 (I)(4) and, “[i]f there is a dispute as to what
constitutes commonly accepted agricultural animal husbandry practices or commonly accepted
rodeo practices, the New Mexico livestock board shall hold a hearing to determine if the practice
in question is a commonly accepted agricultural animal husbandry practice or commonly accepted
rodeo practice,” N.M.S.A. § 30-18-1 (J). The Scoping Responses conclude that the Livestock
Board’s animal cruelty finding, which “pertains to commonly accepted agricultural animal
husbandry practices,” is not relevant to the Aerial Shooting, which is “a land management action
carried out to address resource impacts” rather than an animal husbandry practice. Scoping
Responses at 13 (AR 005929). The Scoping Responses also assert that the American Veterinary
- 83 -
Medical Association (“AVMA”) “distinguishes between euthanasia, typically conducted on a
restrained animal, and methods that are more accurately characterized as humane killing of
unrestrained animals under field conditions.” Scoping Responses at 14 (AR 005930). The
Scoping Responses state that, under AVMA guidelines, personnel tasked with killing wildlife
should be proficient, and use proper firearms, ammunition, and traps. See Scoping Responses at
14 (AR 005930). In sum, the Forest Service argues that, although “there may be a distinction
between clinical euthanasia and field practices for humane killing, [] field practices are still
considered an acceptable form of euthanasia.”
Scoping Responses at 14 (AR 005930).
Accordingly, the Forest Service concludes that, because the Animal Inspection Service’s
procedures fully comply with AVMA guidelines for field practices, the Aerial Shooting is
acceptable. See Scoping Responses at 14 (AR 005930).
Regarding a concern that branded cattle may be shot during the Aerial Shooting, the
Scoping Responses state that the Forest Service will notify directly all grazing permittees before
conducting the Aerial Shooting, and that, if any branded cattle are killed, their owners may request
compensation from the Forest Service or file a claim under the Federal Torts Claims Act,
28 U.S.C. §§ 1291, 1346, 1402, 2401-02, 2411, 2412, 2671-80. See Scoping Responses at 14-15
(AR 005930-31). To assist in processing claims, the Forest Service says that it will document “kill
locations so interested parties can inspect the animals.” Scoping Responses at 15 (AR 005931).
Addressing concerns that cultural resources may be disturbed, the Forest Service indicates that it
will consult with the SHPO as needed. See Scoping Responses at 15 (AR 005931).
Finally, the Scoping Responses reject the contention that the Gila Cows are “estray
livestock and thus fall under the jurisdiction of the New Mexico Livestock Board.” Scoping
Responses at 15 (AR 005931). Under New Mexico law, “estray” means
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livestock found running at large upon public or private lands, either fenced
or unfenced, whose owner is unknown, or that is branded with a brand that is not
on record in the office of the board or is a freshly branded or marked offspring not
with its branded or marked mother, unless other proof of ownership is produced.
N.M.S.A. § 77-2-1.1(O). “Livestock” means “all domestic or domesticated animals that are used
or raised on a farm or ranch, including the carcasses thereof, and exotic animals in captivity and
includes equines, cattle, sheep, goats, swine, bison, poultry, ostriches, emus, rheas, camelids and
farmed cervidae upon any land in New Mexico.” N.M.S.A. § 77-2-1.1(A). The Livestock Board
has jurisdiction over the impoundment of estray livestock. See N.M.S.A. § 77-13-2. The Scoping
Responses assert that, under New Mexico law, the Gila Cows are not estray livestock, because
they are several generations removed from the abandoned Redstone Allotment cattle, the Gila
Cows were born in the Gila Wilderness, and were never domesticated or otherwise raised on a
farm or ranch. See Scoping Responses at 16 (AR 005932). The Scoping Responses argue further
that, even if the Gila Cows were estray livestock that are under the Livestock Board’s jurisdiction,
the Forest Service’s power to remove the Gila Cows preempts any State laws “that give the New
Mexico Livestock Board authority over these animals -- at least to the extent they require the
Forest Service to take or to not take certain actions.” Scoping Responses at 17 (AR 005933).
e.
The Animal Inspection Service’s Categorical Exclusion Record.
On February 16, 2023, the Animal Inspection Service finalizes a document that
summarizes the Animal Inspection Service’s involvement in the Aerial Shooting. See Animal
Plant Health and Inspection Service, U.S. Agriculture Department, Categorical Exclusion Record
Operational Wildlife Damage Management USDA APHIS Wildlife Services at 1-5 (dated
February 16, 2023)(AR 005893-97)(“Animal Inspection Service CE Record”).
The Animal
Inspection Service CE Record states that the Forest Service requested the Animal Inspection
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Service “to assist with lethally removing feral cattle that are causing habitat damage in designated
reads of the Gila National Forest.” Animal Inspection Service CE Record at 1 (AR 005893). The
Animal Inspection Service CE Record then describes how the Gila Cows, which are “born in the
wild and never domesticated,” Animal Inspection Service CE Record at 1 (AR 005893), have been
damaging the Gila Wilderness and how the Aerial Shooting will be conducted in a way that
complies with relevant safety and humaneness standards for euthanizing wild animals. See Animal
Inspection Service CE Record at 1-3 (AR 005893-95). The Animal Inspection Service CE Record
also summarizes and references relevant parts of the Decision Memo. and the Miscellaneous
Biological Assessment, insofar as those materials describe the Gila Cows’ environmental threat,
and how the Aerial Shooting will not impact adversely threatened and endangered species,
historical cultural archaeological, or specially managed natural resources or wilderness areas, or
other environmental resources. See Animal Inspection Service CE Record at 2-3 (AR 00589495).
Regarding the Animal Inspection Service’s NEPA compliance procedures, the Animal
Inspection Service CE Record asserts that the Aerial Shooting is “categorically excluded from
further NEPA analysis and does not require the preparation of an environmental assessment or
environmental impact statement.” Animal Inspection Service CE Record at 3 (AR 005895). The
Animal Inspection Service CE Record supports this conclusion by pointing to how the “analysis
above indicates the proposed action will not adversely impact target or nontarget species including
threatened and endangered species or critical habitat, or human health and safety,” and that,
accordingly, “[t]here are no extraordinary circumstances anticipated which might result in a
significant effect on the human environment even when considered along with other past, present
and reasonably foreseeable future actions.”
Animal Inspection Service CE Record at 3
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(AR 005895). In addition to concluding that there are no extraordinary circumstances, the Animal
Inspection Service CE Record asserts that the Aerial Shooting falls within the Animal Inspection
Service’s “routine measures” categorical exclusion, which excludes categorically from further
NEPA review:
Routine measures, such as . . . sampling that does not cause physical alteration of
the environment, . . . removals, (and) control, and monitoring . . . (This) may
include the (lawful) use . . . of chemicals, pesticides, or other potentially hazardous
or harmful substances, materials, and target-specific devices or remedies, provided
that such use . . . (A) . . . is localized or contained in areas where humans are not
likely to be exposed, and is limited in terms of quantity . . . B) [sic] . . . will not
cause contaminants to enter water bodies, including wetlands; . . . (C) . . . does not
adversely affect any federally protected species or critical habitat; and (D) . . . does
not cause bioaccumulation.
Animal Inspection Service CE Record at 3-4 (AR 005895-96)(ellipses, parentheticals, and
emphases in original)(brackets added). Finally, the Animal Inspection Service CE Record asserts
its determination regarding NEPA compliance “is based upon current environmental laws,
regulations, and policies, and made in consultation with” the Forest Service. Animal Inspection
Service CE Record at 4 (AR 005896).
3.
The Petitioners’ Alleged Injuries.
Loren Patterson represents that he is the President of the Cattle Growers, and that he is
responsible for “oversight over all activities, administration, policy objectives, and strategic
initiatives of the association.” Patterson Decl. ¶ 2, at 2. Patterson also represents that some Cattle
Growers members have grazing allotments “in and around the Gila National Forest and Gila
Wilderness,” and that these grazing permittees’ cattle “have entered, and do enter, vacant
allotments and graze in the Gila Wilderness” because the fences and gates between active grazing
allotments are often left open or knocked down by hikers, hunters, recreational users, wildlife, or
the cattle themselves. Patterson Decl. ¶ 6, at 3. Patterson concludes that, because these cattle have
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entered vacant allotments, some cattle “likely have entered” the project area, and, although they
are branded or tagged, such marks are difficult to identify without physical inspection, particularly
in the winter months when the cattle grow thicker winter coats. Patterson Decl. ¶ 7, at 3. Patterson
asserts that his members will not be able to discover if any of their cattle are killed during the
Aerial Shooting, because GPS data on where the shots are taken “will not identify the cattle that
are shot and do not die immediately but wander off, bleed out and die.” Patterson Decl. ¶ 6, at 3.
Patterson also asserts that the Gila Cows being shot “may not be branded,” but are still “the
progeny of cattle that were and that belonged to NMCGA Members.” Patterson Decl. ¶ 11, at 4.
Patterson describes a directive that the Cattle Growers developed with the Livestock Board,
whereby permittees adjacent to or in proximity to the Wilderness may gather unbranded cattle in
the Wilderness, and then purchase those cattle from the Livestock Board following inspection. See
Patterson Decl. ¶ 11-12, at 4. Patterson says that some of his members have taken advantage of
this directive, and that the Aerial Shooting denies his members the opportunity to continue, or start,
using the directive. See Patterson Decl. ¶ 12-13, at 4-5. Patterson thus alleges that his members’
lost opportunity “constitute[s] a financial loss to permittees who are NMCGA members.”
Patterson Decl. ¶ 14, at 6.
Patterson also says that his members “use the Gila National Forest and the Gila Wilderness
for aesthetic, recreational, and environmental interests that are ancillary, but related, to their role
as ranchers.”
Patterson Decl. ¶ 15, at 5.
Patterson represents that his members “consider
themselves to be intimately and regularly connected to the environment, which affects them
individually, as well as the cattle they raise and manage.” Patterson Decl. ¶ 16, at 5. Patterson
describes how his members seek to preserve the environmental integrity of the land adjacent and
near to the Gila National Forest and the culture that has arisen around the land, which includes
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raising, grazing, and managing cattle. See Patterson Decl. ¶ 16, at 5. Patterson thus concludes
that any environmental harm to the Gila Wilderness “will necessarily harm the operations of
[Cattle Growers] members adjacent to and surrounding the Gila National Forest.” Patterson
Decl. ¶ 16, at 5. Patterson also asserts that his members’ other interests in the Gila Wilderness - including recreation, horseback riding, and camping -- are part of the Cattle Growers’ mission of
“promoting and preserving the ability of ranchers of ranchers to not only prosper economically,
but to enjoy the natural beauty of New Mexico and its forest areas in connection with and alongside
their ranching operations.” Patterson Decl. ¶ 17, at 6. Patterson asserts that some Cattle Growers
members have made “firm arrangements” to “resume engaging in these outdoor activities in the
Gila Wilderness . . . as soon as the Gila Wilderness is reopened after the Aerial Shooting, but no
later than the second week of March, 2023, pending weather conditions.” Patterson Decl. ¶ 19, at
6. Patterson alleges that these members, who have plans to recreate in the Gila Wilderness shortly
after the Aerial Shooting, “will be irreparably harmed if they observe and encounter dozens, if not
hundreds, of mutilated cattle carcasses throughout the land,” and that this harm is “specific given
their background as cattle ranchers and the unique relationship they have with cattle and the
environment.” Patterson Decl. ¶ 20, at 6-7. Patterson also says that his members will be harmed
irreparably by the “putrid smell and repulsive visual image of cattle carcasses,” and he notes that
Cattle Growers members “suffered distress from viewing and learning about” the Gila Cows killed
during the February, 2022, Shooting. Patterson Decl. ¶¶ 20-21, at 7. Patterson also says that
carcasses rotting in the Gila River also will harm his members, who use the river as a personal
water source while recreating, because they either will lose access to the now contaminated river.
or will suffer aesthetic or physical harm if they consume the contaminated water. See Patterson
Decl. ¶¶ 20, 22, at 7.
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Nelson Shirley also represents that he is a Cattle Growers member, that his cattle -- both
those that he owns individually and through Spur Lake -- have wandered into the project area, and
that he has attempted to, and intends to continue to attempt to, take advantage of the Livestock
Board directive that allows him to gather and purchase unbranded cattle in the Gila Wilderness.
See Shirley Decl. ¶¶ 5, 7, 10, 16, at 2-3, 5. Accordingly, Shirley alleges that the Aerial Shooting
injures both him and Spur Lake, because: (i) he and Spur Lake will not be able to identify any of
his cattle that the Animal Inspection Service may kill; and (ii) he 57 will lose an opportunity to
purchase unbranded cattle under the Livestock Board initiative. See Shirley Decl. ¶¶ 12, 15-17, at
3-5. Shirley also alleges that he intends to recreate in the Gila Wilderness immediately after the
Aerial Shooting, “but no later than March 8, 2023, pending weather conditions.”
Shirley
Decl. ¶ 21, at 6. Accordingly, Shirley alleges that he 58 will suffer the aesthetic and physical harms
that Patterson describes in his declaration -- i.e., observing the mutilated carcasses, experiencing
the foul smell, and losing access to, or drinking from, the contaminated Gila River when recreating.
See Shirley Decl. ¶¶ 18-24, at 5-7. Shirley also asserts that he has “personally suffered distress
from viewing and learning about the” Gila Cows killed during the February, 2022, Shooting.
Shirley Decl. ¶ 23, at 7.
Allen Campbell owns and operates the Gila Hot Springs Campground, which “provides
tourists, hikers, campers, and many other people who enjoy nature and the outdoors, with a place
Shirley does not allege that Spur Lake will lose this financial opportunity. See Shirley
Decl. ¶¶ 13-17, at 4-5.
57
Although Shirley asserts that both he and his Spur Lake employees have personal
aesthetic and environmental interests in the Gila Wilderness and recreating therein, Shirley does
not represent that anyone besides him intends to resume recreating in the Gila Wilderness shortly
after the Aerial Shooting. See Shirley Decl. ¶¶ 18-21, at 5-6.
58
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to sleep, eat, and rest before, during, and after their recreational activities in the Gila Wilderness.”
Campbell Decl. ¶ 2, at 1. Campbell represents that, in March, 2022, he “had discussions with
many hikers and campers visiting the Campground about their experience in the Gila Wilderness
in which they expressed their concerns about having observed dead cattle throughout the forest.”
Campbell Decl. ¶ 6, at 1. Campbell alleges that these individuals told him that they observed dead
cattle, “including in or near the Gila River.” Campbell Decl. ¶ 6, at 1. Campbell also asserts that
one individual sent him a photograph of a dead Gila Cow on the banks of the Gila River that the
individual observed while hiking in the Gila Wilderness.
See Campbell Decl. ¶ 6, at 1-2.
Campbell alleges that “[m]any other hikers” told him “that the forest ‘smelled like hell,’ describing
a putrid and rancid smell caused by the decomposing carcasses of cattle that was present at various
points along the trails and the Gila River in the Gila Wilderness.” Campbell Decl. ¶ 7, at 2 (internal
quotations have no citation). Regarding concerns about the Gila River’s water quality, Campbell
says that some individuals told him that they “were afraid to drink the water in the Gila River
because they believed it was contaminated due to the numerous dead cattle in and around the
river,” and that one person told him that they believed they got sick after drinking water from the
Gila River. Campbell Decl. ¶ 8, at 2. Campbell alleges that the rotting carcasses made him lose
campground customers, because, by the end of March, 2022, “it seemed to be common
knowledge” that the Gila Wilderness was filled with dead Gila Cows “that would impact their
experience.” Campbell Decl. ¶ 9, at 3. Campbell insists that the Aerial Shooting’s timing
exacerbated the problem, because “mid-to-late March[] begins the busiest time of year” for his
business. Campbell Decl. ¶ 10, at 3. In sum, Campbell states:
12.
The Gila Wilderness, and my Campground as a launching point for hikers
and campers, were harmed during this timeframe because hikers and campers did
not want to experience the sights and smells of decomposing cattle along the trails
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and the Gila River in the Gila Wilderness. The Campground experienced a loss of
customers and a loss of goodwill caused by the dead cattle in the Gila Wilderness
during that timeframe. I am unable to calculate the actual harm to the Campground
because I do not know, and cannot know, how many customers would have visited
the Campground, but chose not to because of the dead cattle in the Gila Wilderness.
13.
I understand the USFS and APHIS intend to conduct another operation to
shoot cattle in the Gila Wilderness from a helicopter beginning February 23, 2023
(the “Aerial Shooting”). If the Aerial Shooting goes forward, the Campground will
again suffer a loss of customers and goodwill as it did in Spring 2022. As before, I
will be unable to calculate the actual harm to the Campground because I do not
know, and cannot know, how many customers would have visited the Campground,
but chose not to because of the dead cattle in the Gila Wilderness.
Campbell Decl. ¶¶ 12-13, at 3.
Jay Kinsella is a Grant County resident and Humane Farming member who lives less than
two miles from the Gila National Forest. See Declaration of Jean “Jay” Kinsella, Jr. ¶¶ 3, 5, 7, at
1-2 (dated August 31, 2023), filed August 31, 2023 (Doc. 50-4)(“Kinsella Decl.”). Kinsella
represents that he has an aesthetic interest in observing wild animals and in maintaining New
Mexico’s environmental resources. See Kinsella Decl. ¶¶ 5-6, at 1-2. Kinsella alleges that
“[k]nowing that cattle -- and all other wildlife -- within the Gila Wilderness are shot from
helicopters, scared by the noise of helicopters and rifles discharging, causes [him] severe emotional
disturbance.” Kinsella Decl. ¶ 11, at 3. Kinsella also asserts that he “fear[s] the environmental
harm caused by” the Aerial Shooting, because there will be more stampedes and rotting carcasses
in the river. Kinsella alleges that this environmental harm injures him, because: (i) he fears he will
“witness decomposing cattle wounded by gunshot;” (ii) he is distressed “at entering this peaceful
area only to anticipate the suffering of animals;” and (iii) the Aerial Shooting “undermines [his]
experience of solitude.” Kinsella Decl. ¶ 12, at 3. Kinsella is also “concerned about the very
principle of shooting cattle from a moving helicopter” because it is his understanding “that,
generally, shooting animals from a moving vehicle is prohibited conduct.” Kinsella Decl. ¶ 14, at
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3. Kinsella also alleges that he “will not be able to hike or enjoy those areas impacted by the
shootings,” and that his “interest is not only in experience the wilderness as a refuge for these
animals, but in protecting and supporting their humane treatment.” Kinsella Decl. ¶¶ 15, 18, at 4.
Kinsella says that the Forest Service’s alleged failure to comply with federal environmental and
procedural laws injures him, because: (i) the helicopter use within the Gila Wilderness offends him
by disrupting his “intention to listen to the natural sounds, birds, and the lull of the river,” Kinsella
Decl. ¶ 19, at 5; (ii) helicopter use within the Gila Wilderness will scare wildlife, and “[k]nowledge
of the animals’ fear and anxiety concerns [him] greatly,” Kinsella Decl. ¶ 20, at 5; and (iii) he does
not “have the information that [he] need[s] . . . to understand and explain the significant
environmental effects of the aerial shooting plan to others,” and it is “important to [him] to take
an educated position on a policy or action,” Kinsella Decl. ¶ 23, at 6. In sum, Kinsella says that
he is “harmed by the Defendants’ failure to comply with NEPA and appropriately consider the
environmental impact of,” Kinsella Decl. ¶ 24, at 7, the Aerial Shooting:
If Defendants were forced to comply with NEPA and the APA, this may
avert the possibility of them overlooking the significant environmental impact of
their Aerial Shooting plan. The cattle would not suffer cruel and inhumane
treatment, and I and other members of HFA would not face the increased risk of
environmental, emotional, aesthetic, and other risks of harm as detailed here. An
order from the Court demanding compliance with NEPA and the APA would
remedy these injuries.
Kinsella Decl. ¶ 25, at 7.
Barbara Thompson is an Albuquerque resident and Humane Farming member who visits
the Gila Wilderness with her family “as often as [they] can,” Declaration of Barbara
Thompson ¶ 6, at 2 (dated August 31, 2023), filed August 31, 2023 (Doc. 50-6)(“Thompson
Decl.”). See Thompson Decl. ¶¶ 3-4, at 1. Thompson alleges that her awareness of the Gila Cows’
inhumane deaths “causes [her] stress and anxiety.” Thompson Decl. ¶ 10, at 3. She also asserts
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that she is afraid “for the safety of [her] own family, as [they] enjoy hiking and relaxing throughout
the Gila National Forest and Gila Wilderness,” and she is “emotionally disturbed by the idea of
firearms being used in this untouched landscape.” Thompson Decl. ¶ 9, at 2. She also is
“concerned about having to explain [the Aerial Shooting] to [her] child, as this use of violence
against animals goes against our family values.” Thompson Decl. ¶ 9, at 3. Thompson says that
the Aerial Shooting changes her plans to visit the Gila Wilderness, because she “will not expose
[her]self or [her] family to disturbing scenes of wounded, dying animals,” Thompson Decl. ¶ 12,
at 3, and that she “will no longer be able to easily plan [her family’s] recreational activities in the
Gila,” because the Aerial Shooting “will not be one isolated event,” Thompson Decl. ¶ 13, at 4.
Thompson asserts that the Forest Service’s alleged failure to comply with federal environmental
and procedural laws injures her, because: (i) the use of helicopters in the Gila Wilderness “offends
[her] sense of the basic nature of this environment, free from human touch and impact,” Thompson
Decl. ¶ 17, at 5; (ii) the Forest Service “did not meaningfully consider less cruel measures to
manage the cattle population,” Thompson Decl. ¶ 11, at 3; (iii) the Aerial Shooting’s
environmental impact, which has not been considered fully, causes her to worry about other
animals in the Gila Forest and the Gila Wilderness, see Thompson Decl. ¶ 18, at 5; and (iv) the
Forest Service did not give her an opportunity to participate meaningfully in the public comment
and review process, which means that, in turn, she lacks sufficient information about the Aerial
Shooting to understand its environmental impacts, and explain those impacts to other Humane
Farming members and community members, see Thompson Decl. ¶¶ 19-20, at 5-6. In sum,
Thompson alleges:
The harm I suffer from Defendants’ failure to comply with NEPA and the
APA would be averted upon an order from the Court demanding compliance with
NEPA and the APA. The Aerial Shooting plan would be more fully
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comprehensive, having considered the significant environmental impact from this
activity. Importantly, cattle and other animals would not suffer an inhumane death.
I, and other members of HFA would not be at risk of the environmental and
emotional risks of harm I have described in this declaration.
Thompson Decl. ¶ 22, at 6.
PROCEDURAL BACKGROUND
This section outlines the litigation’s procedural context. The Court begins by discussing
the Petitioner’s Complaint and the Court’s Memorandum Opinion and Order, filed February 22,
2023 (Doc. 20)(“TRO MOO”), denying the Petitioners’ Application for Temporary Restraining
Order and Preliminary Injunction, filed February 21, 2023 (Doc. 6)(“2023 TRO”). Second, the
Court describes how the Respondents conducted the Aerial Shooting in February, 2023. Third,
the Court describes the arguments in the Motion to Intervene, in the Plaintiffs’ Opposition to
Motion to Intervene, filed March 13, 2023 (Doc. 31)(“Motion to Intervene Opposition”), in the
Reply Brief in Support of Motion to Intervene, filed March 21, 2023 (Doc. 34)(“Motion to
Intervene Reply”), and at the May 22, 2023, hearing. Fourth, the Court describes the arguments
in the Petitioners’ Merits Brief; in the Respondents’ Merits Response; in the RespondentIntervenor’s Response Brief, filed November 2, 2023 (Doc. 59)(“Biological Center Merits
Response”); in the Petitioners’ Reply in Support of Brief on the Merits, filed January 5, 2024
(Doc. 62)(“Petitioners’ Merits Reply ”); and at the February 1, 2024, hearing. Fifth, the Court
discusses the parties’ arguments related to the Petitioners’ Notice of Supplemental Authority and
Agency Interpretation, filed January 10, 2025 (Doc. 68)(“Supplemental Authority Brief”).
1.
The Complaint and the TRO MOO.
On February 21, 2023, the Petitioners file the Complaint, alleging that: (i) the Aerial
Shooting violates the June, 2022, Stipulation, because the Forest Service did not provide the Cattle
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Growers, Spur Lake, and the public with enough notice before commencing the Aerial Shooting;
(ii) the Forest Service lacks statutory authority to conduct the Aerial Shooting; (iii) the Aerial
Shooting is unlawful, because the Forest Service’s regulations prohibit such conduct; and (iv) the
Forest Service violates both the APA and the NEPA by not preparing an EIS, not identifying an
applicable CE, and concluding erroneously that there are no extraordinary circumstances that
warrant full NEPA review. See Complaint ¶¶ 1-5, at 2-4. The Petitioners bring four claims:
(i) Violation of Court Stipulation, because the Forest Service and the Animal Inspection Service
issued that Decision Memo. “only one week before the Aerial Shooting [was] set to begin,”
Complaint ¶ 78, at 21; (ii) Acting in Excess of Statutory Authority in violation of the APA, because
“[t]here is no statute that authorizes the destruction of cattle on wilderness lands,” and “the
Wilderness Act[] presumptively prohibits the use of ‘motorized equipment’ and ‘mechanical
transport,’ such as the aircraft intended to be used for shooting cattle here,” Complaint ¶ 86, at 22
(quoting 15 U.S.C. 1133(c))(emphasis in Complaint)(“Statutory Authority Claim”); (iii) Acting in
Violation of Regulation under the APA, because 36 C.F.R. § 262.10 “prescribes a specific process
of notice of impoundment, gathering and impoundment, notice of sale, and sale, all of which must
be followed before the cattle may be destroyed or otherwise disposed of,” Complaint ¶ 93, at 23
(explaining 36 C.F.R. § 262.10)(“Impoundment Regulation Claim”); and (iv) Failure to Prepare
an EA or EIS in violation of the APA and the NEPA, because the Aerial Shooting is a “major
federal action significantly affecting the quality of the human environment under NEPA,”
Complaint ¶ 100, at 25, none of the CEs that the Forest Service or Animal Inspection Service
identifies is applicable, see Complaint ¶ 104-107, at 26-27, and, “[e]ven if one or more categorical
exclusions applied, extraordinary circumstances would override them and dictate preparation of
an EIS, or at a minimum, an EA,” Complaint ¶ 111, at 28 (“NEPA Claim”). See Complaint ¶¶ 76-
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113, at 20-29. The Petitioners request: (i) a declaration, order, and judgment holding that the
Aerial Shooting is unlawful; (ii) temporary and injunctive relief enjoining the Forest Service and
the Animal Inspection Service from conducting the Aerial Shooting; (iii) an attorneys’ fees and
cost award; and (iv) all other relief, in law or in equity, to which the Petitioners may be entitled.
See Complaint ¶ 114, at 29-30.
On February 22, 2023, the Court denies the Petitioners’ 2023 TRO. See TRO MOO at 2.
In the TRO MOO, the Court determines that the Petitioners are not likely to succeed on the merits
of any of their claims. See TRO MOO at 21-24. For Count I, the Court concludes that the
Petitioners are not likely to show that the Respondents violate the June, 2022, Stipulation, because
the Scoping Letter provides sufficient notice, and is disseminated on November 22, 2022, which
is more than seventy-five days before the Aerial Shooting is set to commence. See TRO MOO at
22-23. For Counts II and III, the Court determines that the Gila Cows are not “livestock,” as
36 C.F.R. § 222.1 defines that word, and that the 36 C.F.R. § 222.1 definition applies to
36 C.F.R. § 262.10, which prescribes procedures for impounding and disposing of “unauthorized
livestock,”
36 C.F.R. § 262.10.
Accordingly,
the
Court
concludes
that,
because
36 C.F.R. § 262.10 does not apply to the Gila Cows, the Petitioners are not likely to show that the
Aerial Shooting violates the APA. See TRO MOO at 23-24. Regarding Count IV, the Court
concludes that the Petitioners are not likely to show that the Respondents violate the NEPA,
because the evidence in the record shows that the Respondents “have taken sufficient precautions
to avoid liability under NEPA” and “are exempt of the need for an environmental impact
statement.” TRO MOO at 24. The Court also concludes that the Petitioners have not shown that
they will suffer irreparable harm for which damages would be an inadequate remedy, because the
Petitioners’ asserted injuries -- the potential killing of an errant cattle or loss of consumer
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goodwill -- are too speculative or insufficient to justify granting injunctive relief. See TRO MOO
at 25. The Court finally concludes that the balance of equities does not favor the Petitioners,
because the Petitioners waited until two days before the Aerial Shooting’s planned commencement
to file their action, and that granting the 2023 TRO would be adverse to the public interest, because
the Court does not see a legal prohibition on the Aerial Shooting, and all parties agree that the Gila
Cows need to be removed. See TRO MOO at 25-26.
2.
The Aerial Shooting.
On February 24-25 and 27, 2023, the Animal Inspection Service conducts the Aerial
Shooting. See Second Declaration of Camille Howes ¶ 3, at 2, filed March 7, 2023 (Doc. 301)(“Second Howes Decl.”). During the Aerial Shooting, the Animal Inspection Service kills
nineteen Gila Cows, none of whom “ended up close to any waterways or trails.” Second Howes
Decl. ¶ 4, at 2.
3.
The Motion to Intervene Briefing and Hearing.
The motion to intervene briefing is comprised of three briefs. First is the Biological
Center’s Motion to Intervene, followed by the Petitioners’ Motion to Intervene Opposition, and
the Biological Center’s Motion to Intervene Reply. The Court held a hearing on May 22, 2023,
where the parties made oral arguments regarding the Motion to Intervene. See May 22, 2023,
Hearing Minutes at 1-2. The Court discusses each in turn.
a.
The Motion to Intervene.
On February 28, 2023, the Biological Center filed the Motion to Intervene in this lawsuit.
See Motion to Intervene at 1-15. The Biological Center moves, pursuant to rule 24(a) of the
Federal Rules of Civil Procedure, to intervene as a matter of right. See Motion to Intervene at 1.
In the alternative, the Biological Center moves, pursuant to rule 24(b) of the Federal Rules of Civil
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Procedure, for permissive intervention. See Motion to Intervene at 1. In the Motion to Intervene,
the Biological Center maintains that it “has a lengthy history of specifically working to address
the deleterious environmental impacts from both domesticated and feral cattle on the Gila National
Forest and other Southwestern Region National Forests,” and “has consistently sought the removal
of unauthorized cattle.” Motion to Intervene at 3 (citing Schulke Decl. ¶¶ 9-18, at 3-7). The
Motion to Intervene also notes that the Biological Center submitted comments during the Aerial
Shooting’s scoping period. See Motion to Intervene at 4.
The Biological Center argues that it satisfies all rule 24(a) elements for intervention as a
matter of right: (i) the Motion to Intervene is timely; (ii) the Biological Center has protectable
interests in the lawsuit’s subject; (iii) the lawsuit may impair the Biological Center’s interests; and
(iv) existing parties do not represent adequately the Biological Center’s interests. See Motion to
Intervene at 5-13. Regarding (i), the Biological Center maintains that its Motion to Intervene is
timely, because it was filed one week after the Petitioners filed the Complaint. See Motion to
Intervene at 5. Regarding (ii), the Biological Center insists that it has two protectable interests:
protecting riparian areas, and endangered and threatened species, and preserving the protections it
has achieved relating to cattle grazing in the Gila National Forest. See Motion to Intervene at 711. To support its contention that it has a protectable interest in protecting the Gila Wilderness’
environmental resources, the Biological Center catalogues its decades-long environmental
advocacy in the Gila Wilderness and the Gila National Forest, including petitioning and suing the
United States to protect several species -- the spikedace, loach minnow, Mexican spotted owl,
Chiricahua leopard frog, narrow-headed gartersnake, and yellow-billed cuckoo -- who either
occupy or have critical habitat in the project area. See Motion to Intervene at 7-9. To support its
contention that it has a protectable interest in preserving the protections it has achieved already,
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the Biological Center describes how, nearly three decades ago, the Biological Center sued the
Forest Service regarding its mismanagement of 158 grazing allotments across the Southwestern
United States. See Motion to Intervene at 9-10. That case’s settlement agreement obligated the
Forest Service to remove cattle from certain riparian habitats and to issue a biological opinion
regarding the grazing allotments. See Motion to Intervene at 10. Pursuant to those obligations,
the Forest Service developed grazing allotment criteria and “has generally committed to exclude
cattle from riparian streamside habitat and to regularly monitor riparian areas.” Motion to
Intervene at 10. Between 2017 and 2019, the Biological Center conducted field assessments in
the Gila Wilderness and the Gila National Forest to determine if livestock were grazing in areas
that the Forest Service excluded. See Motion to Intervene at 10. In these assessments, the
Biological Center observed widespread overgrazing and riparian damage. See Motion to Intervene
at 10. Based on those observations, the Biological Center sued the Forest Service in 2020 to
“enforce protections for the endangered and threatened species within the upper Gila River
watershed in relation to unauthorized cattle grazing.” Motion to Intervene at 10. The 2020 case
also settled, and the resulting settlement agreement (“August 2021 Settlement Agreement”)
obligates the Forest Service to monitor the excluded riparian areas, including those in the Gila
Wilderness, for unauthorized grazing. See Motion to Intervene at 11. The August 2021 Settlement
Agreement does not address the Gila Cows, but concerns only livestock who have wandered
outside of their permitted allotments to graze in excluded areas. See Motion to Intervene at 11.
The Biological Center argues, however, that the Gila Cows’ presence undermines the August 2021
Settlement Agreement’s goals, because they graze in the excluded areas, which the Biological
Center has fought to protect from over-grazing. See Motion to Intervene at 11. In sum, the
Biological Center asserts that they have protectible interests both in protecting riparian areas in the
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Gila Wilderness and in promoting the success of their settlement agreement, which obligates the
Forest Service to prevent over-grazing in the Gila Wilderness. See Motion to Intervene at 7-11.
Regarding (iii) -- i.e., whether the lawsuit impairs the Biological Center’s protectable interests - the Biological Center argues that the “Petitioners’ requested relief to allow the Gila feral cow
herd to remain within the Gila Wilderness” harms its protected interests, because the Gila Cows’
continued presence would damage the riparian areas that the Biological Center seeks to protect.
See Motion to Intervene at 11-12. Regarding (iv) -- i.e., whether existing parties adequately
represent the Biological Center’s interests -- the Biological Center argues that, because the
Biological Center sues the Forest Service to compel compliance with environmental law, the
Biological Center’s interests and the Respondents’ interests may diverge. See Motion to Intervene
at 12-13. The Biological Center concludes that, because all four rule 24(a) factors are satisfied, it
may intervene as a matter of right. See Motion to Intervene at 13. In the alternative, the Biological
Center argues that the Court should grant the Biological Center permission to intervene, because
the Biological Center “seeks to defend the validity of the agencies’ feral cow removal decision,”
Motion to Intervene at 13, which satisfies rule 24(b)’s requirement that a permissive intervenor’s
“claim or defense and the main action have a question of law or fact in common,” Fed. R. Civ. P.
24(b)(2).
b.
The Motion to Intervene Opposition.
On March 13, 2023, the Petitioners respond to the Motion to Intervene. See Motion to
Intervene Opposition at 1-14. The Petitioners argue that the Biological Center may not intervene
as a matter of right, because the Respondents adequately represent the Biological Center’s interests
and the action’s outcome will not impair those interests. See Motion to Intervene Opposition at 79. Regarding adequate representation, the Petitioners emphasize how the Biological Center’s
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interests and the Forest Service’s are identical, as both seek to protect riparian areas and limit overgrazing in the Gila Wilderness. See Motion to Intervene Opposition at 3-6. The Petitioners assert
that, because the Respondents and the Biological Center both seek to defend the Aerial Shooting,
the Respondents adequately represent the Biological Center’s interests. See Motion to Intervene
Opposition at 8-9. To support their contention that the Respondents adequately represent the
Biological Center, the Petitioners assert that “there is a ‘general presumption that “representation
is adequate when the objective of the applicant for intervention is identical to that of one of the
parties.”‘” Motion to Intervene Opposition at 9 (quoting San Juan Cnty v. United States, 503 F.3d
1163, 1204 (10th Cir. 2007)(en banc)(“San Juan County”)(quoting City of Stilwell v. Ozarks Rural
Elec. Co-op. Corp., 79 F.3d 1038, 1042 (10th Cir. 1996)). The Petitioners also dispute whether
the Biological Center’s prior litigation against the Forest Service impacts this analysis, arguing
that the fact that the Biological Center had different interests under previous circumstances does
not mean that their interests will diverge in this lawsuit. See Motion to Intervene at 9-10.
Regarding impairment of the Biological Center’s interests, the Petitioners say that the Biological
Center’s concern -- whether the Gila Cows are removed -- is not the lawsuit’s subject. See Motion
to Intervene Opposition at 10. Instead, the Petitioners characterize this lawsuit’s subject as “the
means by which the [Gila Cows] 59 must be removed.” Motion to Intervene at 10. The Petitioners
argue that, accordingly, “the end sought by both the CBD and the USFS -- the removal of these
cattle from the Gila Wilderness -- will be accomplished irrespective of the outcome of this case,”
The Petitioners use the word, “USFS” here, which is not a synonym for the Gila Cows.
See Motion to Intervene Opposition at 10. The Court concludes, however, that, based on the
context, this word is a typographical error. It is unlikely that the Petitioners suggest that this
lawsuit’s subject is the removal of the Forest Service itself, as much as they may disagree with the
Forest Service’s actions related to the Aerial Shooting.
59
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and thus the Biological Center cannot show that this outcome can impair its interests. See Motion
to Intervene Opposition at 10. Regarding permissive intervention, the Petitioners argue that the
Respondents represent adequately the Biological Center’s interests, and that intervention will
“‘only clutter the action unnecessarily.’” Motion to Intervene Opposition at 11 (quoting Arney v.
Finney, 967 F.2d 418, 421 (10th Cir. 1992)). Finally, the Motion to Intervene Opposition asserts
that the Motion to Intervene is procedurally defective, because it is not “‘accompanied by a
pleading that sets out the claim or defense for which intervention is sought.’” Motion to Intervene
Opposition at 11 (quoting Fed. R. Civ. P. 24(c)).
c.
The Motion to Intervene Reply.
On March 21, 2023, the Biological Center replies to the Petitioner’s Motion to Intervene
Opposition. See Motion to Intervene Reply at 1-8. In its Motion to Intervene Reply, the Biological
Center insists that the Respondents do not represent adequately its interests. See Motion to
Intervene Reply at 1-5. First, the Biological Center says that the Petitioners mischaracterize San
Juan County:
First, although San Juan County was an en banc decision denying
intervention, the Judges’ respective bases for that denial was fractured, with only
three judges joining that portion of the opinion holding that representation was
adequate. Indeed, Judge Hartz -- the same Judge who wrote the plurality opinion at
issue in San Juan County -- recognized the non-binding nature of the opinion in a
decision he authored two years later. WildEarth Guardians v. United States Forest
Serv., 573 F.3d 992, 997 (10th Cir. 2009)(“We are well aware that the lead opinion
in San Juan County stated that a presumption of adequate representation should
apply when the government is a party pursuing a single objective. But only three
members of the en banc court joined this portion of the opinion.”)(internal citations
and quotations omitted); id. at 996 (“We have held . . . that the intervenor’s
‘showing is easily made when the party upon which the intervenor must rely is the
government, whose obligation is to represent not only the interest of the intervenor
but the public interest generally, and who may not view that interest as coextensive
with the intervenor’s particular interest.’”)(quoting [Utah Ass’n of Ctys. v. Clinton,
255 F.3d 1246, 1254 (10th Cir. 2001)]).
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Motion to Intervene Reply at 2-3.
Second, the Biological Center insists that adequate
representation cannot be presumed solely because both the Respondents and the Biological Center
seek to defend the Aerial Shooting. See Motion to Intervene Reply at 3-4. The Biological Center
asserts that “‘the government’s representation of the public interest generally cannot be assumed
to be identical to the individual parochial interest of a particular member of the public merely
because both entities occupy the same position in litigation,’” where “the federal government’s
objectives ‘involve a much broader range of interests’ than a private intervenor applicant,
‘including competing policy, economic, political, legal, and environmental factors.’” Motion to
Intervene Reply at 3 (quoting Kane Cnty. v. United States, 928 F.3d 877, 894 (10th Cir. 2019)).
Applying Kane Cnty. v. United States, the Biological Center states that, because the Forest Service
considered these “competing interests” in crafting the Decision Memo., the Respondents cannot
represent it adequately. Motion to Intervene Reply at 3. The Biological Center also emphasizes
how its “long-standing and singular efforts to compel the Forest Service to protect endangered
species and riparian habitats” indicate further that, despite their present alignment, the
Respondents and the Biological Center do not share “identical” interests. Motion to Intervene
Reply at 4. In a footnote, the Biological Center also disputes the Petitioners’ framing whether the
action will impair its interests, arguing that the action concerns not only the means by which the
Gila Cows must be removed, but also whether they are removed. See Motion to Intervene Reply
at 5 n.1. Regarding permissive intervention, the Biological Center makes the same arguments: the
Petitioners are incorrect in alleging that the Respondents can represent adequately the Biological
Center’s interests. See Motion to Intervene Reply at 5. Finally, The Biological Center disputes
whether it is obligated to lodge a pleading with its Motion to Intervene, which was “filed well
before any responsive pleading is due in this case.” Motion to Intervene Reply at 6. The Biological
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Center attaches, nonetheless, a response to the Petitioner’s Complaint to its Motion to Intervene
Reply. See Motion to Intervene Reply at 6; Proposed Respondent-Intervenor’s Response to
Petitioners’ February 21, 2023 “Complaint for Declaratory and Injunctive Relief,” filed March 21,
2023 (Doc. 34-1).
d.
The May 22, 2023, Hearing.
On May 22, 2023, the Court holds a hearing on the Motion to Intervene. See May 22,
2023, Hearing Minutes at 1. At the hearing, the Biological Center highlights the briefing’s core
dispute: whether the Respondents represent adequately the Biological Center’s interest. See Draft
Transcript of May 22, 2023, Hearing at 6:18-7:2 (taken May 22, 2023)(Segee)(“May 22, 2023,
Tr.”). 60 Regarding this issue, the Biological Center argues that, given the “long history of pressure
and [the Respondents and the Biological Center] being at loggerheads,” the two parties do not
share identical interests. May 22, 2023, Tr. at 12:4-18 (Segee). Distinguishing San Juan County
-- where the Tenth Circuit denies intervention -- the Biological Center emphasizes how the
Respondents have “to meet a variety of governing laws and standards that are broader in scope”
than those at issue in San Juan County., which was not an APA action. May 22, 2023, Tr. at 13:517 (Segee). Moreover, the Biological Center argues that the Respondents must act on the public’s
behalf, and not just on a private group’s behalf, even if that private group agrees with the
Respondents’ particular position here. See May 22, 2023, Tr. at 13:18-14:1 (Segee).
The Petitioners admit that “there is a variety of case law” where courts recognize “that
often the Federal Government’s interests cannot adequately represent the interests of a private
The Court’s citations to the transcript of the hearing refer to the court reporter’s original,
unedited version. Any final transcript may contain slightly different page and/or line numbers.
60
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party.” May 22, 2023, Tr. at 16:1-4 (McGuire). The Petitioners argue, however, that the
Respondents and the Biological Center “are directly and unquestionably aligned, both in terms of
their position in the lawsuit but also in terms of their motivations,” May 22, 2023, Tr. at 17:7-9
(McGuire), regarding the method of cow removal, which -- as opposed to whether the cows are
removed -- is the relevant issue in this case, see May 22, 2023, Tr. at 16:24-17:9 (McGuire).
Regarding the case law, although the Petitioners do not rebut the Biological Center’s San Juan
County distinction, they cite Tri-State Generation & Transmission Ass’n, Inc. v. New Mexico
Public Regulatory Commission, 787 F.3d 1068 (10th Cir. 2015)(“Tri-State”) -- where the Tenth
Circuit denies intervention -- for the proposition that “those cases finding [] inadequate
representation between the Government and the proposed intervenor are inapplicable when the
objective of the applicant for intervention in a particular case is identical to that of one of the
parties.” May 22, 2023, Tr. at 18:1-5 (McGuire). In the Petitioners’ eyes, the Court must deny
the Motion to Intervene, because the Biological Center cannot identify a way their interests differ
from the Respondents’ interests. See May 22, 2023, Tr. at 18:22-20:10 (McGuire); id. at 22:1420 (McGuire). The Petitioners point to the August, 2021, Settlement Agreement as evidence that
the Respondents and the Biological Center have identical interests, because, “by virtue of [the
August 2021 Settlement Agreement],” the Forest Service cannot change its position and decide
not to remove [the Gila Cows].” May 22, 2023, Tr. at 21:10-13 (McGuire). The Petitioners warn
the Court: “And if the Court were to hold that[,] simply because it is the Federal Government, that
they are incapable of representing CBD’s interests adequately in this particular case, that would
effectively amount to a position that the Federal Government can never adequately represent the
interests of a private party.” May 22, 2023, Tr. at 20:10-17. Finally, the Petitioners assert that
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intervention will delay this action and increase litigation costs. See May 22, 2023, Tr. at 23:1224:9 (McGuire).
Before the Biological Center replies to the Petitioners’ response, the Court asks for the
Respondents’ input. See May 22, 2023, Tr. at 26:12-13 (Court). Although the Respondents say
that they do not oppose or support the Biological Center’s intervention, they expect the Biological
Center to make arguments that the Respondents do not support. See May 22, 2023, Tr. at 26:2127:4 (Smith, Court). Referencing prior litigation where either the Cattle Growers or the Biological
Center sues the United States, and then the non-suing party intervenes, the Respondents assert that
they do not believe that the Respondents and the Biological Center have identical interests. See
May 22, 2023, Tr. at 27:4-9 (Smith)(“[T]o say that the Center for Biological Diversity and the
Federal Government have identical position on anything is, I do not want to say laughable but, it
is interesting to say the least.”); id. at 27:11-13 (Smith)(“[I]n all of these cases, whether it is the
Cattle Growers suing or the CBD suing as plaintiff, we are inevitably in the middle”). The
Respondents note that, in the case that led to the August, 2021, Settlement Agreement, the Cattle
Growers intervened and made the same arguments that the Biological Center makes here. See
May 22, 2023, Tr. at 28:3-10 (Smith). Regarding which specific interests diverge, the Respondents
argue that the Biological Center is not concerned about how Forest Service impoundment
regulations work, which is a key issue in this case, or about the safety of the Cattle Growers’
permitted livestock that may wander in the project area, which the Forest Service considered in
crafting the Decision Memo. See May 22, 2023, Tr.29:19-30:1 (Smith). The Respondents argue
that the August, 2021, Settlement Agreement does not change this analysis, because that agreement
concerns only permitted livestock in riparian areas, which is distinct from the Gila Cow issue. See
May 22, 2023, Tr. at 33:14-24 (Smith). When the Court asks the Respondents why, if the Court
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grants the Biological Center’s Motion to Intervene, they favor permissive intervention over
intervention as a matter of right, the Respondents say that permissive intervention is easier,
because permissive intervention eliminates the complex analysis regarding how connected the
Respondents’ and the Biological Center’s interests are. See May 22, 2023, Tr. at 30:11-18 (Court,
Smith).
Replying to the Petitioners’ response, the Biological Center disputes the Petitioners’
characterization of this case’s core issue. See May 22, 2023, Tr. at 37:10-38:9. The Biological
Center maintains that it wants the Gila Cows gone and that it supports the Aerial Shooting as a
way to remove them. See May 22, 2023, Tr. at 37:10-38:9. Stated otherwise, the Biological Center
does not seek to defend the Aerial Shooting’s specifics, but rather supports the Aerial Shooting,
because it removes the Gila Cows. See May 22, 2023, Tr. at 37:10-38:9. Thus, in the Biological
Center’s eyes, the dispute is whether the Gila Cows can be removed, not about how they are
removed. See May 22, 2023, Tr. at 37:10-38:9. Regarding Tri-State, the Biological Center insists
that litigation posture does not determine identical interests. See May 22, 2023, Tr. at 38:10-21.
The Biological Center argues that, instead, whether the parties have the same universe of concerns
surrounding their respective positions determines if their interests are identical. See May 22, 2023,
Tr. at 38:22-39:17. The Biological Center disputes the Petitioners’ characterization of the August,
2021, Settlement Agreement and supports the Respondents’ framing: the August, 2021, Settlement
Agreement addresses how the Forest Service manages permitted livestock and is not relevant to a
dispute regarding the Gila Cows’ removal. See May 22, 2023, Tr. at 40:3-22 (Segee). When the
Court asks the Biological Center to identify the key interest that the Biological Center has that is
different from Respondents’ interests, the Biological Center responds:
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We do probably have a slightly different way of presenting it, just more focused on
our, again, singular interests in terms of discussing how that relates to the
Endangered Species Act, the riparian habitats, and that the CE, for example, is
appropriate in the circumstance like this where the action is going to benefit the
environment. And, that it is necessary to stop the degradation.
May 22, 2023, Tr. at 41:18-42:1 (McGuire).
At the hearing, the Court indicates that it is inclined to grant the Motion to Intervene. See
May 22, 2023, Tr. at 42:8-43:6 (Court); May 22, 2023 Hearing Minutes at 1-2. In response to the
Court’s inclination, the Petitioners ask the Court to order the Respondents and the Biological
Center to confer on their briefing, and identify areas where they disagree with each other “so as to
reduce the duplication of arguments and efforts.” May 22, 2023, Tr. at 43:25-44:2 (McGuire).
The Court denies this request, reasoning that it should not micromanage the parties and the
briefing, and that, even if the Biological Center supports the Respondents’ position, the Biological
Center ought to be able to explain that position in its own words. See May 22, 2023, Tr. at 44:1945:5 (Court).
4.
The Merits Briefing and Hearing.
The merits briefing is comprised of four briefs: the Petitioners’ Merits Brief, the
Respondents’ Merits Response, the Biological Center Merits Response, and the Petitioners’ Merits
Reply. The Court held a hearing on February 1, 2024, where the parties made oral arguments
regarding the merits briefing. See February 1, 2024, Hearing Minutes at 1-2. The Court discusses
each brief in turn.
a.
The Petitioners’ Merits Brief.
On August 31, 2023, the Petitioners file the Petitioners’ Merits Brief, which is fifty-eightpages long, and attaches seven exhibits, including six sworn declarations and a 185-page
Agriculture Department document regarding riparian area management. See Petitioners’ Merits
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Brief at 1-58; Patterson Decl. ¶¶ 1-24, at 1-10; Shirley Decl. ¶¶ 1-26, at 1-10; Campbell Decl. ¶¶ 118, at 1-6; Kinsella Decl. ¶¶ 1-25, at 1-8; Miller Decl. ¶¶ 1-20, at 1-7; Thompson Decl. ¶¶ 1-22,
at 1-7; U.S. Department of Agriculture, Proper Functioning Condition Assessment for Lotic Areas
at 1-185 (dated 2015), filed August 31, 2023 (Doc. 50-7)(“Riparian Technical Reference”). The
Petitioners make three primary arguments: (i) the Aerial Shooting violates the Forest Service’s
impoundment regulations; (ii) the Aerial shooting does not comply with the NEPA; and (iii) the
Petitioners have standing. The Court addresses each in turn. See Petitioners’ Merits Brief at 846.
i.
The Petitioners Argue That the Aerial Shooting Violates the
Forest Service’s Impoundment Regulations.
The Petitioners assert that, because the Forest Service failed to impound the Gila Cows
before killing them, the Aerial Shooting violates 36 C.F.R. § 262.10, which prescribes procedures
for removing unauthorized livestock from Forest Service lands. See Petitioners’ Merits Brief at 1.
The Petitioners insist that 36 C.F.R. § 262.10 applies to the Gila Cows, because they are cattle who
are not permitted to be where they are, and thus they are “unauthorized livestock,” as
36 C.F.R. § 261.2 defines that phrase:
Unauthorized livestock means any cattle, sheep, goat, hog, or equine not
defined as a wild free-roaming horse or burro by § 222.20(b)(13), which is not
authorized by permit to be upon the land on which the livestock is located and
which is not related to use authorized by a grazing permit.
36 C.F.R. § 261.2. See Petitioners’ Merits Brief at 10-11. To buttress their preferred definition,
the Petitioners catalogue dozens of instances where the Forest Service and other parties 61 refer to
While most of the examples that the Petitioners provide are Forest Service documents,
two of them are emails from Biological Center President Todd Schulke. See Petitioners’ Merits
Brief at 15.
61
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the Gila Cows as unauthorized cattle in fact sheets, internal emails, and meeting notes. See
Petitioners’ Merits Brief at 11-16. The Petitioners also suggest that the Forest Service admits that
the Gila Cows are unauthorized livestock in the Decision Memo by “stating that the need to remove
the Gila Cattle is intended to ‘[m]eet the intent of 36 CFR 261.7, which prohibits placing or
allowing unauthorized livestock to enter or be in the National Forest System.’” Petitioners’ Merits
Brief at 11 (quoting Decision Memo. at 5 (AR 005903))(brackets and emphasis added in
Petitioners’ Merits Brief). The Petitioners make a similar argument regarding how the Forest
Service notifies grazing permittees about the Aerial Shooting: because the Forest Service issued
an “Impound Notice,” which “is required pursuant to § 262.10 in connection with the physical
impoundment of ‘unauthorized livestock,’” the Forest Service “tacitly acknowledged” that the Gila
Cows are unauthorized livestock and that 36 C.F.R. § 262.10 applies. Petitioners’ Merits Brief at
16 (internal quotations have no citation).
The Petitioners also reject the Respondents’ preferred definition of “unauthorized
livestock” as “‘animals of any kind kept or raised for use or pleasure.’” Petitioners’ Merits Brief
at 17 (quoting 36 C.F.R. § 222.1). The Petitioners offer three supporting reasons. See Petitioners’
Merits Brief at 17-25. First, the Petitioners contend that 36 C.F.R. § 261.2’s plain language is not
limited to “animals of any kind kept for use or pleasure.” 36 C.F.R. § 222.1. See Petitioners’
Merits Brief at 17. Second, the Petitioners contend that the prohibition against unauthorized
livestock is in § 261, not § 222. Petitioners’ Merits Brief at 17. Thus, the § 261 definition, which
“‘appl[ies] to this part,’” should apply to the § 262.10 impoundment procedure, which is premised
on the § 261 prohibition against unauthorized livestock. Petitioners’ Merits Brief at 17 (quoting
36 C.F.R. § 261.2). The Petitioners argue that the § 222 “has no relationship to the prohibition on
‘unauthorized livestock’ found in § 261.7,” Petitioners’ Merits Brief at 18 (internal quotations have
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no citation), because: (i) the Forest Service promulgated § 222 more than 10 months after § 261;
(ii) § 222 is in a separate part of the Forest Service regulations; (iii) § 222 concerns different
subject matter -- grazing policy, rather removal of unauthorized livestock; and (iv) § 222 does not
reference § 261, see Petitioners’ Merits Brief at 18. Third, the Petitioners contend that the § 222
definition is a “post hoc rationalization” of the Forest Service’s actions, rather than a “good faith
attempt” to provide a reasonable definition of the word, because the Forest Service consistently
has referred to the Gila Cows as “unauthorized livestock.” Petitioners’ Merits Brief at 19. Finally,
the Petitioners maintain that, even if the § 222 definition controls, the Gila Cows are still “kept or
raised for use or pleasure,” 36 C.F.R. § 222.1, even though a private party does not own them
currently, because “livestock” commonly is understood to refer to cattle, regardless of ownership
status. Petitioners’ Merits Brief at 19-21.
To close out their argument regarding the Forest Service’s violation of its regulations, the
Petitioners dispute the Decision Memo.’s assertions that, because the Gila Cows are invasive and
are damaging riparian areas, the Forest Service may abandon its impoundment procedures. See
Petitioners’ Merits Brief at 21-22. The Petitioners assert that the Gila Cows are not invasive,
because they descend from “traditional cattle used for agricultural purposes.” Petitioners’ Merits
Brief at 21. The Petitioners argue, in the alternative, that, even if the Gila Cows are invasive, the
Forest Service does not have “carte blanche authority” to shoot the Gila Cows from a helicopter
to remove them. Petitioners’ Merits Brief at 21. Finally, the Petitioners dispute that the Forest
Service has sufficient evidence of environmental damage to justify the Aerial Shooting. See
Petitioners’ Merits Brief at 22-25. The Petitioners argue that the Decision Memo.’s photographs
of environmental damage are insufficient, because: (i) there are only a few photographs; and
(ii) they do not show that the Gila Cows, as opposed to another large grazing animal, caused the
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documented damage. See Petitioners’ Merits Brief at 22-25. The Petitioners allege that, by relying
on a sparse set of photographs, the Forest Service “failed to follow the recommendations in the
Riparian Technical Reference,” because it did not conduct controlled assessments over time to
evaluate the Gila Cows’ environmental impact. Petitioners’ Merits Brief at 24-25.
ii.
The Petitioners Argue That the Aerial Shooting Does Not
Comply With the NEPA.
Regarding the Respondents’ alleged NEPA violation, the Petitioners argue that the
Respondents violate the NEPA, because: (i) the Aerial Shooting is a major federal action that may
have significant adverse environmental effects, such that the Forest Service must prepare an EA
or an EIS; (ii) the Aerial Shooting does not qualify for a CE, which would absolve the Forest
Service from preparing an EA or an EIS; and (iii) even if a CE applies, there are extraordinary
circumstances that nonetheless compel the Forest Service to prepare an EA or an EIS. See
Petitioners’ Merits Brief at 25-41. Separately, the Petitioners argue that the Forest Service’s
scoping process violates the NEPA, because there was no formal public notice-and-comment
period after the Forest Service released the Scoping Letter. See Petitioners’ Merits Brief at 41-42.
Regarding whether a CE applies, the Petitioners argue that none of the CEs that the Decision
Memo. identifies is valid. See Petitioners’ Merits Brief at 35-39. The Petitioners insist that the
first
CE -- civil
and
criminal
enforcement,
and
investigative
activities,
under
7 C.F.R. § 1b.3(a)(5) -- does not apply, because the Aerial Shooting “is a resource management
measure aimed at protecting endangered species habitat from degradation, which is not a law
enforcement action.” Petitioners’ Merits Brief at 37 (citing Decision Memo. at 5-7 (AR 00590305)). The Petitioners also allege that the Respondents’ position that the Gila Cows are not
unauthorized livestock is inconsistent with the Respondents’ position that the civil and criminal
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enforcement CE applies. See Petitioners’ Merits Brief at 37. Stated otherwise, if the Gila Cows
are not unauthorized livestock, which are prohibited on federal lands, then there is nothing for the
Forest Service to enforce civilly or criminally. See Petitioners’ Merits Brief at 37. The Petitioners
assert that the second CE -- timber stand and wildlife habitat improvement activities -- does not
apply, because the Aerial Shooting is not an “established vegetation treatment or forestry practice”
similar to those practices that 36 C.F.R. § 220.6(e)(6) lists, including burning, thinning and brush
control, and girdling trees to create snags. 62 Petitioners’ Merits Brief at 37. The Petitioners argue
that it is unreasonable for the Forest Service to equate the Aerial Shooting, which is “a novel
practice,” with the § 220.6(e)(6) examples, which are “well-vetted, standard forestry practices for
reducing fire risk and/or maintaining forest lands.” Petitioners’ Merits Brief at 37. Finally, the
Petitioners argue that the Forest Service’s third CE -- short-term resource protection and public
safety -- applies only to the impoundment notice and closure order, and not to the Aerial Shooting
itself, which is neither an order, nor issued to provide short-term resource protection or protect
public safety. See Petitioners’ Merits Brief at 38. Regarding the Animal Inspection Service’s
purported CE -- routine, localized measures, including removals, that do not affect adversely
wetlands, protected species, or critical habitat -- the Petitioners argue that, because the Aerial
Shooting’s methods are unique and may result in damage to wetlands, protected species, and
critical habitats, it is not a “routine measure,” as 7 C.F.R. § 372.5(c)(1)(I) contemplates the phrase.
Petitioners’ Merits Brief at 38.
Girdling refers to a practice where forest managers create snags, or dead trees, by
stripping bark from live trees. See Snags, den trees, and coarse woody debris for wildlife habitat
at
7,
U.S.
Department
of
Agriculture,
available
at
https://www.nrcs.usda.gov/sites/default/files/2023-02/E666O_WA_020921.pdf (last visited
November 18, 2024).
62
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Finally, the Petitioners argue that, even if a CE applied, the Respondents are obligated to
prepare an EA or an EIS, because there are extraordinary circumstances. See Petitioners’ Merits
Brief at 39 (citing 36 C.F.R. § 220.6(b)(1)). The Petitioners maintain that the Aerial Shooting will
impact three identified resource conditions: (i) federally protected species or habitat; (ii) flood
plains and wetlands; and (iii) designated wilderness. Petitioners’ Merits Brief at 40. Regarding
(i), the Petitioners insist, without citations, that a low-flying helicopter will deter Mexican spotted
owls from using the project area, and that rotting carcasses may pollute waterways and harm
aquatic species. 63 See Petitioners’ Merits Brief at 40. Regarding (ii), the Petitioners allege that
rotting carcasses will pollute waterways, thereby damaging flood plains and wetlands. See
Petitioners’ Merits Brief at 40 (citing Water Specialist Report at 9 (AR 006041)). Regarding (iii),
the Petitioners argue that the Aerial Shooting undermines the Gila Wilderness’ wilderness
character, because the Aerial Shooting is not the most minimally invasive method of removing the
Gila Cows. See Petitioners’ Merits Brief at 40-41. The Petitioners note that Congress prohibits
helicopter use in wilderness areas “unless ‘necessary to meet minimum requirements for the
administration of the area for the purposes of [the Wilderness Act].’” Petitioners’ Merits Brief at
40-41 (quoting 16 U.S.C. 1133(c))(brackets in Petitioners’ Merits Brief, but not in
16 U.S.C. 1133(c)). In short, the Petitioners argue that, by “focusing almost exclusively on the
expected benefit” of the Aerial Shooting, the Respondents violate the NEPA, which “requires
agencies to consider the positive and negative impacts, as well as the short- and long-term benefits
of the proposed action.” Petitioners’ Merits Brief at 41. Separately, the Petitioners assert that the
The Petitioners’ Merits Brief does not identify which federally protected aquatic species
they allege will be damaged. See Petitioners’ Merits Brief at 40.
63
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Respondents violate the NEPA, notwithstanding the alleged failure to prepare an EA or an EIS,
because there was no formal notice-and-comment period following the Scoping Letter’s release.
See Petitioners’ Merits Brief at 41. Instead of providing the Court with authority 64 regarding the
NEPA’s notice-and-comment period requirements, the Petitioners allege that “many people
interpreted [the Scoping Letter] as a first step to share information and fully expected that a
proposed action, with a public notice and comment period would follow.” Petitioners’ Merits
Brief at 42 (citing Letter from Ty Bays, Chairman of Grant Soil and Water Conservation District,
to Camille Howes Re: Request Meeting to Reduce Duplication of Effort and Improve Coordination
in Resolving the Feral Cattle Problems at 1 (dated December 1, 2022)(AR 00444)(“Grant County
Coordination Letter”); Letter from Haydn Forward, Catron County Commissioner, to Camille
Howes and Henry Provencio Re: Request for Cooperating Status for Catron County, New Mexico
Related to the National Environmental Policy Act Compliance for the Gila National Forest at 1-2
(dated December 14, 2022)(AR 004554-55)(“Catron County Coordination Letter”)). While both
Bays and Forward express their desire to coordinate with the Forest Service regarding the Aerial
Shooting, neither says that they expect a formal notice-and-comment period. See Grant County
Coordination Letter at 1-3 (AR 004444-46); Catron County Coordination Letter at 1-2
(AR 004554-55).
The only regulation to which the Petitioners point is 40 C.F.R. § 1501.9, the relevant
language of which is now cabined in 40 C.F.R. 1502.4. Compare 40 C.F.R. 1502.4(a)(“Agencies
shall use scoping, an early and open process consistent with § 1501.9 of this subchapter, to
determine the scope of issues for analysis in an environmental impact statement, including
identifying the important issues and eliminating from further study unimportant issues.”), with
Petitioners’ Merits Brief at 41 (“‘Generally, [a]gencies shall use an early and open process to
determine the scope of issues for analysis in an environmental impact statement, including
identifying the significant issues and eliminating from further study non-significant
issues.’”)(quoting 40 C.F.R. § 1501.9)(brackets in Petitioners’ Merits Brief, but not in
40 C.F.R. § 1501.9).
64
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iii.
The Petitioners Argue That They Have Standing.
Regarding standing, the Petitioners argue that the Cattle Growers and Humane Farming
have standing to challenge the Aerial Shooting their members’ behalf. See Petitioners’ Merits
Brief at 43-44. The Cattle Growers’ members have standing in two ways: (i) their economic
interests in the possibility that their cattle may be killed in the Aerial Shooting; and (ii) their
“interests in nature, the environment, and the effects dead and decomposing cattle will have on
them as they go into the Gila Wilderness.” Petitioners’ Merits Brief at 43. Humane Farming
member Kinsella has standing, because he visits the Gila Wilderness “to enjoy open space and
wilderness, and to observe animals in their natural habitat,” and the Aerial Shooting impairs his
“aesthetic enjoyment of the wilderness and his interest in the humane treatment of animals by
disrupting the wilderness solitude with helicopter noise and other manifestations of cruelty to
animals, including gunfire and rotting carcasses, and by disturbing native wildlife.” Petitioners’
Merits Brief at 43-44. Humane Farming member Thompson has standing, because she “lives close
to the wilderness [and has] plans to return this year,” and she “support[s] animal protection and
campaigns against animal cruelty.” Petitioners’ Merits Brief at 43. The Petitioners also allege
that the Respondents’ alleged NEPA violation deprived Humane Farming members of an
opportunity to comment on the Aerial Shooting and of “the consolation of knowing that any harm
to animals was carefully evaluated.” Petitioners’ Merits Brief at 44. The Petitioners allege that
these interests are germane both to the Cattle Growers, which seeks “to advance the interests of
the New Mexico cattle industry, as well as to encourage sound environmental policies that benefit
cattle ranchers and their cattle,” and to the Humane Farming, which “is dedicated to the
organizational mission of protecting farmed animals, including cattle, which it furthers through
legislation, anti-cruelty investigations, legal action, education, and direct care for abused animals.”
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Petitioners’ Merits Brief at 44. Finally, the Petitioners assert that the requested relief -- preventing
the Aerial Shooting -- does not require either organization’s members to participate in the lawsuit.
See Petitioners’ Merits Brief at 44.
The Petitioners’ Merits Brief maintains that each individual petitioner -- Spur Lake,
Shirley, and Campbell -- has standing. See Petitioners’ Merits Brief at 44-45. The Petitioners
assert that because Spur Lake operates a ranch bordering the Gila Wilderness, its cattle may wander
into the project area, and the Forest Service may kill them during the Aerial Shooting. See
Petitioners’ Merits Brief at 44-45. The Petitioners maintain that Shirley, as Spur Lake’s owner,
has an interest in those wandering cattle, as well as in his own aesthetic and recreational enjoyment
of the Gila Wilderness, which the Aerial Shooting will undermine as “dead cattle rot and attract
various predators and scavengers.” Petitioners’ Merits Brief at 45. The Petitioners argue that
Campbell has standing, because he lost customers after “multiple campers and hikers who use his
campground expressly noted the presence of dead cattle in the forest as a reason for dissatisfaction
with their experience.” Petitioners’ Merits Brief at 45.
b.
The Respondents’ Merits Response.
On October 19, 2023, the Respondents file the Respondents’ Merits Response. See
Respondents Brief at 1. The Respondents argue: (i) the Petitioners do not have standing to pursue
the Statutory Authority Claim, the Impoundment Regulation Claim, or the NEPA Claim, see
Respondents’ Merits Response at 9-17; (ii) 36 C.F.R. § 262.10 does not require the Forest Service
to impound the Gila Cows before killing them, see Respondents’ Merits Response at 17-37; and
(iii) the Respondents comply with the NEPA, because they rely properly on applicable CEs and
determine reasonably that no extraordinary circumstances preclude CE use, see Respondents’
Merits Response at 37-51.
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i.
The Respondents Argue That the Petitioners Do Not Have
Standing.
Regarding standing for the Statutory Authority Claim and the Impoundment Claim, the
Respondents assert that Humane Farming and Campbell lack standing, because they do not “assert
any injury to their property interests in cattle as a result of the lethal removal operations.”
Respondents’ Merits Response at 11. Respondents also assert that the Cattle Growers, Spur Lake,
and Shirley lack standing because their allegations of future injury – i.e., that these Petitioners’
cattle may be gunned down in the Aerial Shooting – are too conclusory to satisfy Article III’s
injury-in-fact requirement. See Respondents’ Merits Response at 11-13.
Regarding standing for the NEPA Claim, the Respondents insist that neither the Cattle
Growers nor Humane Farming have organizational standing, because neither asserts that
environmental protection is their organization’s central purpose, and thus the alleged
environmental injuries are not germane to their organizations’ missions. See Respondents’ Merits
Response at 14-15. Further, the Respondents argue that Humane Farming also does not have
standing to pursue the NEPA Claim, because its members do not allege that they intend to spend
time in the project area immediately after the Aerial Shooting, such that they are likely to encounter
Gila Cow carcasses. See Respondents’ Merits Response at 15-16 (citing Fund for Animals, Inc.
v. Lujan, 962 F.2d 1391, 1396 (9th Cir. 1992); and Sw Env’t Ctr. V. Sessions, 355 F. Supp. 3d
1121, 1134 (D.N.M. 2018)(Johnson, C.J.)). In a footnote, the Respondents assert that Humane
Farming’s allegation that the Respondents’ failure to comply with the NEPA deprived its members
of the opportunity to comment on the Aerial Shooting is also not cognizable, because “‘deprivation
of a procedural right without some concrete interest that is affected by the deprivation . . . is
insufficient to create Article III standing.’” Respondents’ Merits Response at 16 n.3 (quoting
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Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009))(ellipses in Respondents’ Merits
Response, but not in Summers v. Earth Island Inst.). Regarding the individual Petitioners’
standing, the Respondents assert that Campbell’s injuries are too “hypothetical, conclusory, and
vague” to establish standing, because he cannot identify how many customers he lost. See
Respondents’ Merits Response at 16. The Respondents maintain that Shirley also does not have
standing, because he has not alleged sufficiently that he is likely to encounter rotting Gila Cow
carcasses after the Aerial Shooting, particularly given that he admits that “it would be ‘nearly
impossible’ to locate cattle carcasses across the Project [sic] area.” Respondents’ Merits Response
at 17 (quoting Shirley Decl. ¶ 12, at 3-4). In a footnote, the Respondents argue further that Spur
Lake does not have standing, because businesses “generally do not have aesthetic or recreational
interests, and they cannot support their standing by asserting the aesthetic or recreational interests
of their employees or customers.” Respondents’ Merits Response at 16 n.4 (quoting Triumvirate,
LLC v. Zinke, No. 3:18-cv-0091-HRH, 2018 WL 2027727, at *4 (D. Alaska May 1,
2018)(Holland, J.)).
ii.
The Respondents Argue That the Aerial Shooting Does Not
Violate the Forest Service’s Regulations.
Regarding the Statutory Authority Claim and the Impoundment Regulation Claim, the
Respondents insist that, because the 36 C.F.R. § 222.1 definition, and not the 36 C.F.R. § 261.2
definition, applies to the Gila Cows, 36 C.F.R. § 262.10 does not require the Forest Service to
impound the Gila Cows before killing them. See Respondents’ Merits Response at 17-34. First,
the Respondents argue that the § 261.2 definition incorporates implicitly an element of human
ownership, because that definition is used only twice in § 261, for prohibitions on: (i) placing
unauthorized livestock in the National Forest System; and (ii) ignoring a forest officer’s request to
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remove unauthorized livestock. See Respondents’ Merits Response at 20-21. Second, the
Respondents argue that the Forest Service regulations ought to be construed together and “given
harmonious effect” to actualize the regulatory scheme, such that the two definitions are consistent
with one another. Respondents’ Merits Response at 25-31. In a footnote, the Respondents also
note that the Petitioners’ argument that the § 222.1 definition does not apply to § 262.10, because
§ 261.2 says that its definitions “apply to this part,” 36 C.F.R. § 261.2, is inapposite because
§ 262.10 is not in § 261. See Respondents’ Merits Response at 26 n.7. Synthesizing these
positions, the Respondents argue that § 262.10 cannot apply to the Gila Cows, because: (i) the Gila
Cows are not unauthorized livestock; and (ii) § 262.10
applies to two categories of trespassing livestock: Prior to seizing an animal, the
Forest Service must give 5-days’ written notice to the owner if it “knows the name
and address of the owner[],” 36 C.F.R. § 262.10(a), or 15-days’ notice by
publication and posting “if the name of the owner is unknown,” id. § 262.10(b)
Respondents’ Merits Response at 31 (brackets in Respondents’ Merits Response).
Stated
otherwise, the Respondents argue that § 262.10 can apply only to animals that humans own,
because the regulation mandates that the Forest Service try to contact the unauthorized livestock’s
owner before dealing with it. See Respondents’ Merits Response at 31-32. In the alternative, the
Respondents assert that, even if § 262.10 applies to the Gila Cows, the Forest Service may still
conduct the Aerial Shooting, because the regulation is “drafted only in the permissive ‘may be
impounded,’” which does not prohibit the Forest Service from removing the Gila Cows in some
other way. Respondents’ Merits Response at 33-34 (quoting 36 C.F.R. § 262.10). Finally, the
Respondents assert separately that the Forest Service has ample evidence that the Gila Cows are
an invasive, exotic species that justifies the Aerial Shooting. See Respondents’ Merits Response
at 34-37.
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iii.
The Respondents Argue that the Aerial Shooting Complies With
the NEPA.
Regarding the NEPA Claim, the Respondents maintain that the three CEs apply, and that
no extraordinary circumstances preclude CE use. See Respondents’ Merits Response at 37-49.
The Respondents dispute the Petitioners’ characterization of 36 C.F.R. § 220.6(e)(6) as applying
only to “established vegetation treatment or forestry practices,” Petitioners’ Merits Brief at 37,
because the CE “plainly applies to both timber stand improvement and/or wildlife habitat
improvement activities,” Respondents’ Merits Response at 38 (emphasis in original).
The
Respondents contend that, because nothing in the regulation “suggests that the CE is limited to
vegetation treatment,” the CE applies properly to the Aerial Shooting, which is designed to
improve riparian habitats that the Gila Cows have damaged. Respondents’ Merits Response at 3839.
The Respondents argue also that 7 C.F.R. § 1b.3(a)(5) -- the law enforcement and
investigative activities CE -- applies to the Aerial Shooting, because it is consistent with other
authorized civil and criminal law enforcement activities, like removing unauthorized cattle under
36 C.F.R. § 262.10. See Respondents’ Merits Response at 41-42. The Respondents assert,
moreover, that, because the Gila Cows are not unauthorized cattle -- and thus the Forest Service is
not conducting a § 262.10 removal -- the Aerial Shooting shares a rationale with
36 C.F.R. § 262.10 and other regulations, like 36 C.F.R. § 261.7, that the law enforcement CE
contemplates. See Respondents’ Merits Response at 41-42. The Respondents’ Merits Response
mentions briefly the public health and safety CE as applicable only to the public closure order,
rather than to the Aerial Shooting writ large. See Respondents’ Merits Response at 41. Regarding
the Animal Inspection Service CE -- routine measures -- the Respondents maintain
that shooting, including by aircraft, is a routine management tool used by APHIS
and state game management agencies across the United States to address a variety
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of wildlife management issues involving many species, including feral swine and
other hoofed mammals. See [Animal Inspection Service CE Record at 1
(AR 005893); U.S. Department of Agriculture, The Use of Aircraft in Wildlife
Damage Management at 1 (dated September, 2019), (AR 003286)(“Wildlife Aerial
Shooting Assessment”)](“Aerial shooting . . . is the most common use of aircraft in
the [Wildlife Services] program. From FY11 to FY15, [Wildlife Services] annually
averaged the take of 41,747 animals during 7,066 work tasks associated with aerial
shooting.”); [U.S. Department of Agriculture, National Feral Swine Damage
Management Program: Five Year Report FY14-FY18 at 112-114 (undated),
(AR 003020-22)](5-year report indicating that 69 percent of feral swine removals
in New Mexico were conducted through aerial methods, and animals were removed
in Forest Service Wilderness areas).
Respondents’ Merits Response at 40 (brackets inside of parentheticals in Respondents’ Merits
Response). The Respondents also dispute the Petitioners’ assertion that the Aerial Shooting is
“‘highly controversial,’ because it is ‘likely’ to cause cattle carcasses to contaminate water bodies
and wetlands.” Respondents’ Merits Response at 40 (quoting Petitioners’ Merits Brief at 38). In
response, the Respondents emphasize how the Decision Memo. “specifically addresses this issue”
by prohibiting killing Gila Cows near waterways, and removing carcasses from waterways, if
necessary. Respondents’ Merits Response at 40.
Regarding the Petitioners’ challenge to the Forest Service’s determination that no
extraordinary circumstances preclude CE use, the Respondents challenge first, as a threshold
matter, the Petitioners’ analytical framework. See Respondents’ Merits Response at 43. The
Respondents assert that the initial question is not whether the Aerial Shooting is a major federal
action that may have significant environmental effects: this inquiry is reserved for assessing
whether an EIS is required after the agency prepares an EA. See Respondents’ Merits Response
at 43. Instead, the Respondents argue that the agency, after applying a CE, must evaluate seven
resource conditions to check if any rise to the level of extraordinary circumstances that preclude
CE use. See Respondents’ Merits Response at 43. Regarding the resource condition evaluation,
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the Respondents contend that none of the three conditions that the Petitioners identify -- federally
protected species or critical habitat; flood plains, wetlands, or municipal watersheds; and
Congressionally designated wilderness areas -- constitute extraordinary circumstances.
See
Respondents’ Merits Response at 43-49. Regarding the wildlife impact, the Respondents dispute
the Petitioners’ characterization of the Forest Service’s diligence, and argue that the Miscellaneous
Biological Assessment analyzes sufficiently the Aerial Shooting’s impact on all protected species
and critical habitats. See Respondents’ Merits Response at 45-46. Regarding the water quality
impact, the Respondents point to the Water Specialist Report as evidence that the Forest Service
researched thoroughly whether the Aerial Shooting would damage flood plains, wetlands, or
municipal watersheds. See Respondents’ Merits Response at 47-48. Finally, regarding the
wilderness area impact, the Respondents summarize the Minimum Requirements Analysis as
evidence that the Aerial Shooting is the most minimally invasive solution to the Gila Cow problem,
and assert that flying a helicopter over the Gila Wilderness does not violate the Wilderness Act,
which only prohibits landing aircraft within designated wilderness areas. See Respondents’ Merits
Response at 48-49. Addressing the Petitioners’ arguments regarding the Respondents’ allegedly
deficient scoping process, the Respondents argue that the Respondents did nothing to mislead the
Petitioners into thinking they would have more commenting opportunities beyond the scoping
process. See Respondents’ Merits Response at 49-50. Specifically, the Respondents note that,
because scoping is not reserved for agency actions that require an EIS, the Petitioners were not
duped into thinking, as Petitioners argue, , see Petitioners’ Merits Brief at 41-42, that that Scoping
Letter was the first step in the EIS process, see Respondents’ Merits Response at 50 (citing 36
C.F.R. § 220.4(e)(“Scoping is required for all Forest Service proposed actions, including those that
would appear to be categorically excluded from further analysis and documentation in an EA or
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an EIS.”)). The Respondents argue that, moreover, the Scoping Letter “expressly indicated that
the agency was contemplating proceeding under a CE” and that the Petitioners submitted detailed
comments that “expressly acknowledge” that the Forest Service intended to proceed under a CE.
Respondents’ Merits Response at 50.
c.
The Biological Center’s Merits Response.
On November 2, 2023, the Biological Center also responds to the Petitioners’ Merits Brief.
See Biological Center Merits Response at 1. The Biological Center Merits Response highlights
the Forest Service’ extensive ecological research that supports its conclusion that the Gila Cows
threaten the Gila Wilderness’ riparian systems. See Biological Center Merits Response at 6-9.
The Biological Center also argues that, in addition to complying with the NEPA, the Aerial
Shooting complies with other federal law and requirements, including: (i) the Endangered Species
Act, which requires the Forest Service to “use ‘all methods and procedures which are necessary’”
to conserve federally listed species, Biological Center’s Merits Brief at 10 (quoting 16 U.S.C. §
1532(3))(emphasis in Biological Center’s Merits Brief); (ii) the National Park Service Organic
Act, 16 U.S.C. §§ 551-580, which requires the Forest Service to protect national forests against
depredation; (iii) and the National Forest Management Act, 16 U.S.C. §§ 1600-1614, which
requires the Forest Service to manage national forests in accordance the applicable forest plan, see
Biological Center’s Merits Brief at 10-13.
d.
The Petitioners’ Merits Reply.
On reply, the Petitioners argue that: (i) they have standing for the Statutory Authority
Claim, the Impoundment Regulation Claim, and the NEPA Claim, see Petitioners’ Merits Reply
at 1-11; (ii) the Respondents’ interpretation of “unauthorized livestock” is wrong, Petitioners’
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Merits Reply at 11-24; and (iii) the Respondents and the Biological Center fail to rebut the
Petitioners’ NEPA claim, see Petitioners’ Merits Reply at 24-33.
i.
The Petitioners Argue That They Have Standing.
The Petitioners’ frame the standing issue in reference to the “zone of interests” test for
APA standing, where a claimant must show that his or her injury “falls within the ‘zone of
interests’ sought to be protected by the statutory provision whose violation forms the legal basis
for his complaint,” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 883 (1990)(internal quotations
have no citation). See Petitioners’ Merits Reply at 1-2. Regarding standing for the Statutory
Authority Claim and for the Impoundment Regulation Claim, the Petitioners insists that the Cattle
Growers, Spur Lake, and Shirley have standing, because their injuries -- an inability to retrieve
their cattle that may have wandered into the project area -- fall within the impoundment
regulation’s zone-of-interests, which include an assurance that ranchers will receive notice and
opportunity to reclaim cattle that stray into unauthorized areas. See Petitioners’ Merits Reply at
2-6. The Respondents also maintain that the Cattle Growers, Spur Lake, and Shirley allege
aesthetic injuries, but they do not explain how those aesthetic injuries fall within the impoundment
regulation’s zone-of-interests. See Petitioners’ Merits Reply at 6. The Petitioners argue that the
Campbell Decl. alleges sufficiently a concrete economic injury stemming from the Respondents’
alleged violation of the impoundment regulation, because he says that he experienced a decline in
business after his customers complained about the smell of rotting carcasses in the Gila Wilderness
after the February, 2022, Aerial Shooting. See Petitioners’ Merits Reply at 6-7. The Petitioners
do not identify explicitly how Campbell’s economic injury falls within the impoundment
regulation’s zone-of-interests. The Petitioners assert that Humane Farming has standing to
challenge the impoundment regulation violation, because Humane Farming missed out on an
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opportunity to, pursuant to 36 C.F.R. § 262.10’s procedures, acquire cattle to place in its animal
sanctuary, and that this potential acquisition falls squarely within Humane Farming’s core mission
of preventing animal cruelty. See Petitioners’ Merits Reply at 7-8. The Petitioners allege that
Humane Farming’s purchase of impounded cattle contributes to the impoundment regulation’s
“purposes of providing cost recovery for impoundment-related expenses.” Petitioners’ Merits
Reply at 7 (citing 36 C.F.R. § 262.10(e)-(f)). Regarding standing for the NEPA Claim, the
Petitioners assert that each Petitioner alleges sufficiently that they have at least recreational or
aesthetic interests in the Gila Wilderness, which fall within the NEPA’s zone-of-interests. See
Petitioners’ Merits Reply at 8-11.
Regarding whether those interests are germane to each
organization’s purpose, the Petitioners argue that: (i) the Cattle Growers’ “mission is focused on
advocating for the interests of cattle growers, which includes supporting environmental policies
that protect the environment and the wise use of natural resources”; and (ii) Humane Farming’s
“organizational mission is focused on protecting animals from cruelty and abuse, which includes
protecting the public and the environment from the impact of animal cruelty and abuse.”
Petitioners’ Merits Reply at 11.
ii.
The Petitioners Argue that the Aerial Shooting Violates the
Forest Service’s Regulations.
On the merits of the Statutory Authority Claim and the Impoundment Regulation Claim,
the Petitioners argue that the Respondents’ interpretation of 36 C.F.R. § 262.10 is not entitled to
deference under Auer v. Robbins, 519 U.S. 452 (1997), because the impoundment regulation
applies clearly and unambiguously to Gila Cow removal. See Petitioners’ Merits Reply at 11-15.
The Petitioners also dispute that 36 C.F.R. § 222 -- the Respondents’ proposed definition -- and
36 C.F.R. § 261 -- the Petitioners’ proposed definition -- should be read together, because those
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regulations do not concern the same subject matter. See Petitioners’ Merits Reply at 16. The
Petitioners also argue that the impoundment regulation does not condition cattle removal on active
ownership, and “[c]ourts have cautioned against accepting interpretations by policymakers that
‘imply language that simply does not exist.’” Petitioners’ Merits Reply at 17 (quoting Dir., Office
of Workers’ Comp. Programs, United States Dep’t of Labor v. Mangifest, 826 F.2d 1318, 1324
(3d Cir. 1987)). The Petitioners also reiterate their point that the § 222.1 definition applies to the
Gila Cows, because they fall within a category of animals that humans breed “for use or pleasure,”
regardless of their individual ownership status. Petitioners’ Merits Reply at 17. Finally, the
Petitioners allege that the Respondents’ interpretation disrupts the Petitioners’ expectations about
the impoundment regulation, because it creates a new, unworkable framework where an animal’s
ownership status determines whether it is unauthorized livestock. See Petitioners’ Merits Reply
at 18-20 (distinguishing Utah Native Plant Soc’y v. U.S. Forest Service, 923 F.3d 860 (10th Cir.
2019)).
i.
The Petitioners Argue That the Aerial Shooting Violates the
NEPA.
On the NEPA Claim, the Petitioners repeat their core arguments: the Aerial Shooting does
not fall within a CE, and, even if the Aerial Shooting falls within a CE, extraordinary circumstances
preclude CE use.
See Petitioners’ Merits Reply at 24-33.
Regarding CE application, the
Petitioners argue that: (i) the timber stand and/or wildlife habitat improvement CE does not apply,
because the Forest Service has not shown that the Aerial Shooting does not have a significant
environmental effect, see Petitioners’ Merits Reply at 30-31; (ii) the law enforcement and
investigative activities CE does not apply, because it is “nonsensical” for the Respondents to argue
that the Gila Cows are not unauthorized cattle, but that they may be removed under a CE that
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contemplates enforcement activities directed only at unauthorized cattle, Petitioners’ Merits Reply
at 32; and (iii) the Animal Inspection Service’s routine measures CE does not apply, because,
although shooting wild hogs from aircraft is accepted, shooting cattle from aircraft is not, see
Petitioners’ Merits Reply at 31-32. Regarding extraordinary circumstances, the Petitioners argue
that the Respondents’ determination is not supported, because the Respondents do not provide
enough information about how they reached their conclusions, and the Decision Memo. is not
based on actual data or valid assumptions. See Petitioners’ Merits Reply at 25-28. Finally, the
Petitioners repeat their assertion that the scoping process was inadequate, because it “held out
many possibilities, which generated genuine optimism that Respondents would comply with
NEPA, unlike in 2022.” Petitioners’ Merits Reply at 32-33. The Petitioners do not identify,
however, any law or regulation that the scoping process violates. See Petitioners’ Merits Reply at
32-33.
e.
The Merits Hearing.
On February 1, 2024, the Court holds another hearing on the Petitioners’ standing and the
action’s merits. See February 1, 2024, Hearing Minutes at 1-2. In addition to reiterating many of
the arguments that the parties briefed, the Respondents provide further clarity on their standing
arguments. First, the Respondents contend that the possibility that branded cattle may be killed
during the Aerial Shooting is not an injury-in-fact and, even if one of the Petitioners’ cows are
killed, that Petitioner misses only the opportunity to re-purchase the Petitioner’s wandering cattle
under 36 C.F.R. § 262.10(e), which requires the Petitioner to reimburse the Forest Service for
impoundment and unauthorized grazing fees, rendering the re-purchase price higher than market
value,
see Transcript of February 1, 2024, Hearing at 102:13-24 (taken February 1,
2024)(McGuire), filed March 11, 2024 (Doc. 66)(“February 1, 2024, Tr.”); id. at 6:15-9:8
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(Hamilton). Second, the Respondents contend that neither the Livestock Board’s directive nor
36 C.F.R. § 262.10 give the public a right to purchase Gila Cows at an auction, and thus the Court
could not redress the alleged lost purchasing opportunity. See February 1, 2024, Tr. at 9:9-11:18
(Hamilton)(citing Baca v. King, 92 F.3d 1031 (10th Cir. 1996)). Regarding potential mootness
issues, the parties agree that some Gila Cows remain in the Gila Wilderness, even after the Aerial
Shooting, and that, accordingly, the Forest Service may authorize more aerial operations to remove
the remaining Gila Cows. See February 1, 2024, Tr. at 102:13-24 (McGuire); id. at 119:3-4
(Smith); id. at 122:9-17 (Smith). Regarding the merits of the Statutory Authority Claim and the
Impoundment Regulation Claim, the parties agree that the relevant provisions are unambiguous
and thus Auer deference does not apply. See February 1, 2024, Tr. at 62:24- 63:20 (Court, Smith,
McGuire). Regarding the NEPA Claim’s merits, the Petitioners argue the Forest Service’s field
work does not support its conclusions about the Aerial Shooting’s environmental impact, because
the Forest Service did not “analyze the issues in a controlled, scientific way.” February 1, 2024,
Tr. at 144:22-23 (McGuire). To support this assertion, the Petitioners point to the Riparian
Technical Reference, which, according to the Petitioners, “provides at least some guidance for
how to go about assessing riparian damage.” February 1, 2024, Tr. at 144:24-25 (McGuire). In
turn, the Petitioners assert that the Forest Service’s field work -- as summarized in the Decision
Memo. and its supporting materials -- does not support the Forest Service’s conclusions regarding
the Aerial Shooting’s environmental impact, because the Forest Service failed to follow the
Riparian Technical Reference’s recommendations for assessing riparian damage. See February 1,
2024, Tr. at 144:19-145:18 (McGuire). In response, the Respondents argue that “there is no
requirement in the law” that the Forest Service follow the Riparian Technical Reference’s
recommendations for assessing riparian damage. February 1, 2024, Tr. at 146:1-2 (Smith).
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5.
The Supplemental Authority Brief.
On January 10, 2025, the Petitioners file the Supplemental Authority Brief.
See
Supplemental Authority Brief at 1. The Petitioners attach and submit the Gila National Forest,
U.S. Forest Service, Land Management Plan: Catron, Grant Hidalgo, and Sierra Counties, New
Mexico (dated July 30, 2024), filed January 10, 2025 (Doc. 68-1)(“July 30, 2024, Forest Plan”).
The Petitioners argue that, because the Forest Service’s “Final Forest Plan” refers to the Gila Cows
as “feral domestic livestock,” the Court “should reject USFS’s position in this lawsuit” and
“conclude that the Gila Cattle fall within the definition of ‘unauthorized livestock’ that must be
impounded in accordance with 36 C.F.R. § 262.10.” Supplemental Authority Brief at 2-3 (internal
quotations have no citations)(citing July 30, 2024, Forest Plan at 140). The Petitioners highlight
a portion of the July 30, 2024, Forest Plan that discusses “Non-Native Invasive Species,” July 30,
2024, Forest Plan at 139, and states:
Feral domestic livestock have been or are a problem in some areas of the
forest. These animals are managed by the Forest Service with technical assistance
provided by other federal and state partners. While feral hogs are not documented
in the forest, there exists the potential for them to arrive and cause issues as they do
in other areas of the state. The State of New Mexico considers feral hogs
unprotected and is actively trying to eradicate them in several areas. Efforts will be
made to eradicate feral hogs if they are documented to occur within the forest. Feral
cattle are an ongoing issue arising from legacy non-compliance issues and are more
appropriately discussed in the Livestock Grazing section of this plan.
July 30, 2024, Forest Plan at 140. In addition to arguing that the July 30, 2024, Forest Plan’s use
of the phrase “feral domestic livestock” in this paragraph should persuade the Court to reject the
Forest Service’s interpretation of 36 C.F.R. § 262.10 in this case, the Petitioners assert that,
because the Forest Service “refers readers to a section of the Forest Plan entitled ‘Livestock
Grazing’” when “discussing how the Gila Cattle should be addressed or discussed,” the July 30,
2024, Forest Plan “underscores the reality that the Gila Cattle are livestock.” Supplemental
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Authority Brief at 2 (quoting July 30, 2024, Forest Plan at 140)(emphasis in Supplemental
Authority Brief, but not in July 30, 2024, Forest Plan).
On January 17, 2025, the Respondents respond to the Supplemental Authority Brief. See
Federal Respondents’ Response to Petitioners’ January 10, 2025 “Notice of Supplemental
Authority and Agency Interpretation,” ECF No. 68 [sic] at 1, filed January 17, 2025
(Doc. 69)(“Supplemental Authority Response”). The Respondents make four arguments. See
Supplemental Authority Response at 1-3. First, the Respondents insist that the Court “‘may not
consider materials outside of the administrative record’” for the challenged agency decision in
reviewing the Petitioners’ claims. Supplemental Authority Response at 1 (quoting Jarita Mesa
Livestock Grazing Ass’n v. U.S. Forest Serv., 58 F. Supp. 3d1191, 1224 (D.N.M.
2014)(Browning, J.)). The Respondents argue that, because the Forest Service issues the Decision
Memo. over a year before the July 30, 2025, Forest Plan, that July 30, 2024, “document [] is not
properly before the Court.” Supplemental Authority Response at 2. Second, the Respondents
argue that the “passage the Petitioners quote” neither interprets nor applies the term “livestock” in
36 C.F.R. § 262.10, and, instead, the “passage mostly discusses efforts ‘to eradicate feral hogs,’
not impound them.” Supplemental Authority Response at 2. Third, the Respondents argue that
the July 30, 2024, Forest Plan is “not a final authoritative statement by the Forest Service,” because
it is “subject to modification” while it is currently undergoing an “administrative objections
process,” after which the Forest Supervisor may approve it. Supplemental Authority Response at
2 (citing Gila National Forest; Revision of the Land Management Plan for the Gila National Forest,
89 Fed. Reg. 61059 (July 30, 2024)(“Forest Plan Federal Register Notice”). The Forest Plan
Federal Register Notice gives the public sixty days to “file objections for Forest Service review
prior to the approval” of the July 30, 2024, Forest Plan. Forest Plan Federal Register Notice at
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61058. Fourth, the Respondents argue that the phrase “‘feral domestic livestock’” means that the
Gila Cows are wild animals who are descended from domesticated animals, and, thus, the Gila
Cows are not subject to 36 C.F.R. § 262.10. Supplemental Authority Response at 1-3 (quoting
July 30, 2024, Forest Plan at 140). To support this last argument, the Respondents provide a 2022
dictionary definition of the word “‘feral,’” which means “‘[h]aving returned to an untamed state
from domestication.’” Supplemental Authority Response at 3 (quoting American Heritage
Dictionary (2022))(brackets in Supplemental Authority Brief, but not in the American Heritage
Dictionary).
LAW REGARDING INTERVENTION
Rule 24 provides for intervention of right or permissive intervention on timely motion:
(a)
(b)
Intervention of Right. On timely motion, the court must permit anyone to
intervene who:
(1)
is given an unconditional right to intervene by a federal
statute; or
(2)
claims an interest relating to the property or transaction that
is the subject of the action, and is so situated that disposing
of the action may as a practical matter impair or impede the
movant’s ability to protect its interest, unless existing parties
adequately represent that interest.
Permissive Intervention.
(1)
In General. On timely motion, the court may permit anyone
to intervene who:
(A)
is given a conditional right to intervene by a
federal statute; or
(B)
has a claim or defense that shares with the
main action a common question of law or
fact.
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(2)
(3)
By a Government Officer or Agency. On timely motion, the
court may permit a federal or state governmental officer or
agency to intervene if a party’s claim or defense is based on:
(A)
a statute or executive order administered by
the officer or agency; or
(B)
any regulation, order, requirement, or
agreement issued or made under the statute or
executive order.
Delay or Prejudice. In exercising its discretion, the court
must consider whether the intervention will unduly delay or
prejudice the adjudication of the original parties’ rights.
Fed. R. Civ. P. 24(a)-(b). “The movant bears the burden of establishing his or her right to
intervene.” Ortiz v. New Mexico, 550 F. Supp. 3d 1020, 1070 (D.N.M. 2021)(Browning, J.).
1.
Timeliness.
Before discussing the differences between the two procedural paths to intervention, the
Court addresses one common requirement: timeliness. Both intervention as a matter of right and
permissive intervention require that the motion to intervene be “timely.” Fed. R. Civ. P. 24. “The
timeliness of a motion to intervene is assessed ‘in light of all the circumstances, including the
length of time since the applicant knew of his interest in the case, prejudice to the existing parties,
prejudice to the applicant, and the existence of any unusual circumstances.’” Utah Ass’n of Cntys.
v. Clinton, 255 F.3d 1246, 1250 (10th Cir. 2007)(quoting Sanguine, Ltd. v. U.S. Dep’t of Interior,
736 F.2d 1416, 1418 (10th Cir. 1984)).
While rule 24 does not specify what makes a motion to intervene timely,
the Tenth Circuit has held that “[t]he timeliness of a motion to intervene is assessed
in light of all the circumstances, including the length of time since the applicant
knew of his interest in the case, prejudice to the existing parties, prejudice to the
applicant, and the existence of any unusual circumstances.”
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Am. Ass’n of People with Disabilities v. Herrera, 257 F.R.D. 236, 245 (D.N.M. 2008)(Browning,
J.)(quoting Utah Ass’n of Cntys. v. Clinton, 255 F.3d at 1250)(brackets in Am. Ass’n of People
with Disabilities v. Herrera, but not in Utah Ass’n of Cntys. v. Clinton). The United States Court
of Appeals for the Tenth Circuit has stated that the timeliness “analysis is contextual” and that
courts should not use “absolute measures of timeliness.” Utah Ass’n of Cntys. v. Clinton, 255
F.3d at 1250 (quoting Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th Cir. 1994)). A court properly
denies intervention where, for example, a case is near its end stage, and allowing a party to
intervene would cause undue prejudice and delay in the proceeding; on the other hand, intervention
is proper where, despite the passage of time, there has been limited activity in the case, and the
intervention will not prejudice the existing parties. See Am. Ass’n of People with Disabilities v.
Herrera, 257 F.R.D. at 245-46.
2.
Intervention of Right.
In the absence of an unconditional, federal statutory right to intervene, a movant must
satisfy the following three criteria to qualify for intervention of right: (i) the movant must have an
interest in the litigation’s subject matter; (ii) the movant’s interest will be impaired or impeded if
movant is not allowed to intervene; and (iii) the litigation’s existing parties will not represent
adequately the movant’s interest. See Fed. R. Civ. P. 24(a)(2). The Tenth Circuit “has historically
taken a ‘liberal’ approach to intervention and thus favors the granting of motions to intervene.”
W. Energy All. v. Zinke, 877 F.3d 1157, 1164 (10th Cir. 2017)(citing Coal. of Ariz./N.M. Cntys.
for Stable Econ. Growth v. Dep’t of Interior, 100 F.3d 837, 841 (10th Cir. 1996)).
The first element --“[t]he interest element” -- “is ‘a practical guide to disposing of lawsuits
by involving as many apparently concerned persons as is compatible with efficiency and due
process.’” WildEarth Guardians v. Nat’l Park Serv., 604 F.3d 1192, 1198 (10th Cir. 2010)(quoting
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San Juan County, 503 F.3d at 1195)(emphasis in WildEarth Guardians v. Nat’l Park Serv). An
interest that is direct, substantial, and legally protectable will likely justify intervention. See San
Juan County, 503 F.3d 1163, 1194 (“This is not to say that it is error for a court addressing an
application for intervention to consider whether the prospective intervenor’s interest is direct,
substantial, and legally protectable. As we previously stated, an interest that clearly satisfies all
these conditions would likely justify intervention.”)(citing 7C Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure, § 1908, at 272), abrogated on other grounds by
Hollingsworth v. Perry, 570 U.S. 693, 697-711 (2013). “The movant’s claimed interest is
measured in terms of its relationship to the property or transaction that is the subject of the action,
not in terms of the particular issue before the district court.” WildEarth Guardians v. Nat’l Park
Serv., 604 F.3d at 1198 (citing Utah Ass’n of Cntys. v. Clinton, 255 F.3d 1246, 1252 (10th Cir.
2001)).
The second element -- impairment or impediment to the intervenor’s interest -- presents “a
minimal burden.” WildEarth Guardians v. Nat’l Park Serv., 604 F.3d at 1199. “‘To satisfy [the
impairment] element of the intervention test, a would-be intervenor must show only that
impairment of its substantial legal interest is possible if intervention is denied.’” WildEarth
Guardians v. U.S. Forest Serv., 573 F.3d 992, 995 (10th Cir. 2009)(quoting Utah Ass’n of Cntys.
v. Clinton, 255 F.3d at 1253)(brackets in Utah Ass’n of Cntys. v. Clinton). “If an absentee would
be substantially affected in a practical sense by the determination made in an action, he should, as
a general rule, be entitled to intervene.” WildEarth Guardians v. U.S. Forest Serv., 573 F.3at 995
(quoting San Juan County, 503 F.3d at 1195). “Although the intervenor cannot rely on an interest
that is wholly remote and speculative, the intervention may be based on an interest that is
contingent upon the outcome of the litigation.” San Juan County, 503 F.3d at 1203 (quoting United
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States v. Union Elec. Co., 64 F.3d 1152, 1162 (8th Cir. 1995)). If a proposed intervenor’s “interest
will be prejudiced if it does not participate in the main action, the mere availability of alternative
forums is not sufficient to justify denial of a motion to intervene.” Utah Ass’n of Cntys. v. Clinton,
255 F.3d at 1254 (quoting Commodity Futures Trading Comm’n v. Heritage Cap. Advisory Servs.,
Ltd., 736 F.2d 384, 387 (7th Cir. 1984)). For rule 24(a)(2)’s purposes, “sufficient impairment may
result even from the ‘stare decisis effect’ of a district court’s judgment,” WildEarth Guardians v.
National Park Service, 604 F.3d at 1199 (quoting Utahns for Better Transportation v. United States
Department of Transportation, 295 F.3d 1111, 1116 (10th Cir. 2002)), and a court may consider
“any significant legal effect in the applicant’s interest and [is] not restricted to a rigid res judicata
test,” Coalition of Arizona/New Mexico Counties for Stable Economic Growth v. Department of
Interior, 100 F.3d at 844.
As for the third element, the would-be intervenor also has the “minimal” burden of showing
that the existing parties will not represent adequately its interest. WildEarth Guardians v. Nat’l
Park Serv., 604 F.3d at 1200. “The movant must show only the possibility that representation may
be inadequate.” WildEarth Guardians v. Nat’l Park Serv., 604 F.3d at 1200 (citing Utahns for
Better Transp. v. U.S. Dep’t of Transp., 295 F.3d at 1117). “The possibility that the interests of
the applicant and the parties may diverge need not be great in order to satisfy this minimal burden.”
WildEarth Guardians v. Nat’l Park Serv., 604 F.3d at 1200 (quoting Utah Ass’n of Cntys. v.
Clinton, 255 F.3d at 1254).
3.
Permissive Intervention.
“To permissively intervene, a party need not have a direct personal or pecuniary interest in
the subject of the litigation.” San Juan County, 503 F.3d at 1207. The court must consider whether
intervention will cause undue delay or prejudice when considering whether to grant permissive
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intervention. See Fed. R. Civ. P. 24(b)(3); DeJulius v. New England Health Care Emps. Pension
Fund, 429 F.3d 935, 943 (10th Cir. 2005)(noting that district courts must consider undue prejudice
or delay in deciding whether to grant permissive intervention). The Court interprets rule 24(b) to
allow permissive intervention when: “(i) the application to intervene is timely; (ii) the applicant’s
claim or defense and the main action have a question of law or fact in common; and
(iii) intervention will not unduly delay or prejudice the adjudication of the original parties’ rights.”
Wheeler Peak v. L.C.I.2, Inc., No. CIV-07-1117, 2009 WL 521799, at *3 (D.N.M. Oct. 27,
2009)(Browning, J.)(citing Forest Guardians v. U.S. Dep’t of Interior, No. CIV-02-1003, 2004
WL 3426413, at *10 (D.N.M. Jan. 12, 2004)(Browning, J.)). “The grant of permissive intervention
lies within the discretion of the district court.” Kane Cnty. v. United States, 597 F.3d 1129, 1135
(10th Cir. 2010)(citing City of Stilwell v. Ozarks Rural Elec. Coop., 79 F.3d at 1043). The Court
has previously concluded that class members may intervene permissively even after the named
plaintiffs settle their claims. See Payne v. Tri-State Careflight, LLC, No. CV 14-1044 JB/KBM,
2016 WL 9738302, at *25-26 (D.N.M. July 12, 2016)(Browning, J.).
LAW REGARDING STANDING
A federal court may hear cases only where the plaintiff has standing to sue. See Summers
v. Earth Island Institute, 555 U.S. at 492-93. The plaintiff bears the burden of establishing
standing. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 104 (1998). The plaintiffs
“must ‘allege . . . facts essential to show jurisdiction. If [they] fai[l] to make the necessary
allegations, [they have] no standing.’”
FW/PBS v. City of Dallas, 493 U.S. 215, 231
(1990)(quoting McNutt v. Gen. Motors Acceptance Corp. of Indiana, 298 U.S. 178, 189
(1936))(brackets in FW/PBS v. City of Dallas, but not in McNutt v. Gen. Motors Acceptance Corp.
of Indiana). Moreover, where the defendant challenges standing, a court must presume lack of
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jurisdiction “unless ‘the contrary appears affirmatively from the record.’” Renne v. Geary, 501
U.S. 312, 316 (1991)(quoting Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 546 (1986)).
“It is a long-settled principle that standing cannot be ‘inferred argumentatively from averments in
the pleadings,’ but rather ‘must affirmatively appear in the record.’” Phelps v. Hamilton, 122 F.3d
1309, 1326 (10th Cir. 1997)(quoting FW/PBS v. City of Dallas, 493 U.S. at 231).
“Article III of the Constitution limits the jurisdiction of federal courts to Cases and
Controversies.” San Juan County, 503 F.3d at 1171. See U.S. Const. art. III, § 2. “[A] suit does
not present a Case or Controversy unless the plaintiff satisfies the requirements of Article III
standing.” San Juan County, 503 F.3d at 1171. To establish standing, a plaintiff must show three
things: “(1) ‘an injury in fact that is both concrete and particularized as well as actual or imminent’;
(2) a causal relationship between the injury and the challenged conduct; and (3) a likelihood that
the injury would be redressed by a favorable decision.” Protocols, LLC v. Leavitt, 549 F.3d 1294,
1298 (10th Cir. 2008)(quoting Wyoming ex rel. Crank v. United States, 539 F.3d 1236, 1241 (10th
Cir. 2008)).
“Standing is determined as of the time the action is brought.” Smith v. U.S. Court of
Appeals, for the Tenth Circuit, 484 F.3d 1281, 1285 (10th Cir. 2007)(quoting Nova Health Sys. v.
Gandy, 416 F.3d 1149, 1154 (10th Cir. 2005)(Ebel, J.)). In Smith v. United States Court of
Appeals, for the Tenth Circuit, the Tenth Circuit rejects a plaintiff’s standing to challenge the
Colorado appellate courts’ practice of deciding cases in non-precedential, unpublished opinions,
which the plaintiff asserts allows courts to affirm incorrect decisions without interfering with
official, “published” law. 484 F.3d at 1285. The Tenth Circuit notes that the plaintiff recently has
taken his State appeal and, therefore,
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was in no position to challenge the adequacy of state appellate review in cases
culminating in unpublished opinions unless he could show that he would in fact
receive such review from the state court of appeals (and from the state supreme
court as well, if it took the case on certiorari).
Smith v. U.S. Court of Appeals, for the Tenth Circuit, 484 F.3d at 1285.
By contrast, in Nova Health Systems v. Gandy, the Tenth Circuit concludes that abortion
providers have standing to challenge an Oklahoma parental-notification law on the grounds that
they are in imminent danger of losing patients because of the new law. See 416 F.3d 1154.
Although it concludes that there is standing, the Tenth Circuit is careful to frame the issue as
whether, “as of June 2001 [the time the lawsuit was filed],” Nova Health faces any imminent
likelihood that it would lose some minor patients seeking abortions. Nova Health Sys. v. Gandy,
416 F.3d at 1155. Moreover, while focusing on the time of filing, the Tenth Circuit allows the use
of evidence from later events -- prospective patients lost because of the notification law after the
lawsuit began -- to demonstrate that the plaintiff faces an imminent threat as of the time of filing.
See Nova Health Sys. v. Gandy, 416 F.3d at 1155.
In construing the standing doctrine, the Court has determined that an attorney running for
the office of a Court of Appeals of New Mexico judge lacks standing when that attorney alleges
that the New Mexico attorney disciplinary counsel harmed his chances of election when the
counsel published a summary suspension petition about him. See League of United Latin Am.
Citizens v. Ferrera, 792 F. Supp. 2d 1222, 1233-39 (D.N.M. 2011)(Browning, J.). The Court so
concludes, because the suspension petition’s facts “were already known to voters” through the
aggressive campaign tactics of the attorney’s election rival, so the harm was not “fairly traceable
to the Defendant’s action.” League of United Latin Am. Citizens v. Ferrera, 792 F. Supp. 2d at
1238-39. The Court has determined, however, that a woman has standing to challenge a New
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Mexico criminal statute’s constitutionality, even though the State had not yet filed charges against
the woman, because the district attorney had not attested that he would not bring charges under
the challenged statute. See Payne v. Wilder, 2017 WL 2257390, at *38 (D.N.M. January 3,
2017)(Browning, J.). The Court reasons that an injury in fact exists, despite the lack of a charge,
because the district attorney’s refusal to foreswear a prosecution demonstrates a “credible threat
of prosecution.” Payne v. Wilder, 2017 WL 2257390, at *38. In addition to the cases listed above,
the Court has adjudicated standing issues many times. See, e.g., Friends of the Floridas v. U.S.
Bureau of Land Mgmt., No. CIV 20-0924 JB/GBW, 2024 WL 3952037, at *68-70 (D.N.M. Aug.
27, 2024)(concluding that five environmental groups have standing to challenge a mining project
that allegedly harms the recreational or aesthetic interests of each group’s members); Abraham v.
WPX Prod. Prods., LLC, 184 F. Supp. 3d 1150, 1197 (D.N.M. 2016)(Browning, J.)(concluding
that oil-well royalty owners have standing to assert a breach of the implied duty to market under
New Mexico and Colorado law); N. New Mexicans Protecting Land Water and Rights v. United
States, 161 F. Supp. 3d 1020, 1042 (D.N.M. 2016)(Browning, J.)(concluding that an association
lacks standing to sue on its members’ behalf, because the relief sought is damages); Jarita Mesa
Livestock Grazing Ass’n v. U.S. Forest Serv., 140 F. Supp. 3d 1123, 1170-75 (D.N.M.
2015)(Browning, J.)(concluding that livestock association whose members had ancestral ties to
grazing land in Northern New Mexico has standing to bring a NEPA claim); Alto Eldorado
Partners v. City of Santa Fe, 2009 WL 1312856, at *21, 25 (D.N.M. March 11,
2009)(Browning, J.)(concluding that a developer lacks standing to challenge a city ordinance,
because the ordinance would only affect him if he “lost his current permits,” which, at the time of
the lawsuit, he had not lost).
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1.
Organizational and APA Standing.
Organizational standing can be satisfied in two ways:
Either the organization can claim that it suffered an injury in its own right or,
alternatively, it can assert “standing solely as the representative of its members.”
Warth v. Seldin, 422 U.S. 490, 511, . . . (1975). The latter approach is known as
representational or organizational standing. Ibid.; [Summers v. Earth Island
Institute], 555 U.S. at 497-498 . . . . To invoke it, an organization must demonstrate
that “(a) its members would otherwise have standing to sue in their own right;
(b) the interests it seeks to protect are germane to the organization’s purpose; and
(c) neither the claim asserted nor the relief requested requires the participation of
individual members in the lawsuit.” Hunt v. Washington State Apple Advertising
Comm’n, 432 U.S. 333, 343 . . . (1977).
Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181, 199,
(2023)(brackets and ellipses added). “[I]n addition to the Article III standing requirements, [APA]
Plaintiffs must also meet the statutory standing requirements of the APA.” Utah v. Babbitt, 137
F.3d 1193, 1203 (10th Cir. 1998). To establish APA standing, a plaintiff must: (i) “identify some
‘agency action’ that affects him in the specific fashion;” and (ii) “show that he has ‘suffer[ed] legal
wrong’ because of the challenged agency action, or is ‘adversely affected or aggrieved’ by that
action ‘within the meaning of a relevant statute.’” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. at 882883 (quoting 5 U.S.C. § 702).
[W]e have said that to be “adversely affected or aggrieved . . . within the meaning”
of a statute, the plaintiff must establish that the injury he complains of (his
aggrievement, or the adverse effect upon him) falls within the “zone of interests”
sought to be protected by the statutory provision whose violation forms the legal
basis for his complaint. See Clarke v. Securities Industry Assn., 479 U.S. 388, 396397 . . . (1987). Thus, for example, the failure of an agency to comply with a
statutory provision requiring “on the record” hearings would assuredly have an
adverse effect upon the company that has the contract to record and transcribe the
agency’s proceedings; but since the provision was obviously enacted to protect the
interests of the parties to the proceedings and not those of the reporters, that
company would not be “adversely affected within the meaning” of the statute.
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Lujan v. Nat’l Wildlife Fed’n, 497 U.S. at 883.
LAW REGARDING MOOTNESS
Article III, Section 2 of the Constitution of the United States limits the federal courts’
jurisdiction to actual cases and controversies. See U.S. Const. art. III § 2. “Federal courts are
without authority to decide questions that cannot affect the rights of litigants in the case before
them.” Ford v. Sully, 773 F. Supp. 1457, 1464 (D. Kan. 1991)(O’Connor, C.J.)(citing North
Carolina v. Rice, 404 U.S. 244, 246 (1971)). See Johansen v. City of Bartlesville, 862 F.2d 1423,
1426 (10th Cir. 1988); Johnson v. Riveland, 855 F.2d 1477, 1480 (10th Cir. 1988)). “To qualify
as a case fit for federal-court adjudication, an actual controversy must be extant at all stages of
review, not merely at the time the complaint is filed.” Arizonians for Off. Eng. v. Arizona, 520
U.S. 43, 67 (1997). See Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096,
1121 (10th Cir. 2010). Accordingly, if a case is moot, or becomes moot during any stage of the
case, the court does not have jurisdiction to hear the case. A case becomes moot “when the issues
presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.”
County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)(citing Powell v. McCormack, 395 U.S.
486, 496 (1969)). “Before deciding that there is no jurisdiction, the district court must look at the
way the complaint is drawn to see if it is drawn so as to claim a right to recover under the
Constitution and the laws of the United States.” Bell v. Hood, 327 U.S. 678, 682 (1946).
Jurisdiction is not dependent on whether the plaintiff will succeed in his cause of action;
jurisdiction is determined before the cause of action’s details, both in law and fact, are considered.
See Bell v. Hood, 327 U.S. at 682.
The Tenth Circuit recognizes a distinction between mootness and standing in Lucero v.
Bureau of Collection Recovery, Inc.:
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Like Article III standing, mootness is oft-cited as a constitutional limitation on
federal court jurisdiction. E.g., Building & Constr. Dep’t v. Rockwell Int’l Corp.,
7 F.3d 1487, 1491 (10th Cir. 1993)(“Constitutional mootness doctrine is grounded
in the Article III requirement that federal courts only decide actual, ongoing cases
or controversies.”); see Matthew I. Hall, The Partially Prudential Doctrine of
Mootness, 77 Geo. Wash. L. Rev. 562, 571 (2009)(citing footnote 3 in Liner v.
Jafco, Inc., 375 U.S. 301 . . . (1964), as the first occasion in which the Supreme
Court expressly derived its lack of jurisdiction to review moot cases from Article
III). But although issues of mootness often bear resemblance to issues of standing,
their conceptual boundaries are not coterminous. See Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189-92 . . . (2000). Indeed, the
Supreme Court has historically recognized what are often called “exceptions” to
the general rule against consideration of moot cases, as where a plaintiff’s status is
“capable of repetition yet evading review,” S. Pac. Terminal Co. v. Interstate
Commerce Comm’n, 219 U.S. 498, 515 . . . (1911), or where a defendant has ceased
the challenged action but it is likely the defendant will “return to his old ways” - the latter often referred to as the voluntary cessation exception, United States v.
W.T. Grant Co., 345 U.S. 629, 632 . . . (1953); see also, e.g., City of Erie v. Pap’s
A.M., 529 U.S. 277 . . . (2000). These exceptions do not extend to the standing
inquiry, demonstrating the contours of Article III as it distinctly pertains to
mootness. Friends of the Earth, Inc., 528 U.S. at 191, 120 . . . .
Lucero v. Bureau of Collection Recovery, Inc., 639 F.3d 1239, 1242-43 (10th Cir. 2011).
Nevertheless, the doctrines are closely related. As the Supreme Court has recently explained, “[a]t
all stages of litigation, a plaintiff must maintain a personal interest in the dispute,” and “[t]he
doctrine of standing generally assesses whether that interest exists at the outset, while the doctrine
of mootness considers whether it exists throughout the proceedings.” Uzuegbunam v. Preczewski,
592 U.S. 279, 282 (2021)(Thomas, J.). See Henry P. Monaghan, Constitutional Adjudication: The
Who and When, 82 Yale L.J. 1363, 1384 (1973)(“Mootness is . . . the doctrine of standing set in a
time frame: The requisite personal interest that must exist at the commencement of the litigation
(standing) must continue throughout its existence (mootness).”).
A claim may become moot if “(i) it can be said with assurance that there is no reasonable
expectation that the alleged violation will recur, and (ii) interim relief or events have completely
and irrevocably eradicated the effects of the alleged violation.” County of Los Angeles v. Davis,
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440 U.S. at 631. Establishing mootness is a heavy burden. See County of Los Angeles v. Davis,
440 U.S. at 631. Courts may consider the relative likelihood of the events which a party asserts
keep the dispute from becoming moot. See Golden v. Zwickler, 394 U.S. 103, 109 (1969)(“We
think that under all the circumstances of the case the fact that it was most unlikely that the
Congressman would again be a candidate for Congress precluded a finding that there was
‘sufficient immediacy and reality’ here.”). A case can become moot based on intervening events,
such as settling the case, see United States Bancorp Mortgage Co. v. Bonner Mall Partnership, 513
U.S. 18, 25 (1994)(“Where mootness results from settlement, the losing party has voluntarily
forfeited his legal remedy by the ordinary processes of appeal . . . .”), or a plaintiff becoming a
resident of the State whose residency laws she is challenging, see Sosna v. Iowa, 419 U.S. 393,
399 (1975)(“If appellant had sued only on her own behalf, both the fact that she now satisfies the
one-year residency requirement and the fact that she has obtained a divorce elsewhere would make
this case moot and require dismissal.”).
In comparison, while mootness, a statute of limitations, or some other legal doctrine may
eventually bar a suit, one cannot lose standing once one has it. See Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. at 190-92 (“Furthermore, if mootness were simply
‘standing set in a time frame,’ the exception to mootness that arises when the defendant’s allegedly
unlawful activity is ‘capable of repetition, yet evading review,’ could not exist.”). In addition,
pursuant to Supreme Court and Tenth Circuit precedent, a case is not moot even if the only relief
available to the plaintiff is nominal damages for a past wrong. See Uzuegbunam v. Preczewski,
141 S. Ct. at 796. As the Honorable Michael W. McConnell, then-United States Circuit Judge for
the Tenth Circuit writes: “It may seem odd that a complaint for nominal damages could satisfy
Article III’s case or controversy requirements, when a functionally identical claim for declaratory
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relief will not. But this Court has squarely so held.” Utah Animal Rts. Coal. v. Salt Lake City
Corp., 371 F.3d 1248, 1257 (10th Cir. 2004)(citing Comm. for First Amend. v. Campbell, 962
F.2d 1517, 1526 (10th Cir. 1992)(Baldock, J.)). In short, “a claim for nominal damages precludes
dismissal of [a] case on mootness grounds.” Utah Animal Rts. Coal. v. Salt Lake City Corp., 371
F.3d at 1262 (McConnell, J., concurring). 65
Judge McConnell concurs in his own majority opinion to express his view that Tenth
Circuit precedent on this issue is incorrect, and to urge “that either an en banc [Tenth Circuit] court
or the Supreme Court should hold that a case that is otherwise nonjusticiable on account of
mootness is not saved by the mere presence of a prayer for nominal damages.” Utah Animal Rts.
Coal. v. Salt Lake City Corp., 371 F.3d at 1263. Judge McConnell acknowledges that his view is
contrary to Tenth Circuit precedent, as well as the “distinguished commentator[s]” Wright and
Miller, but states “that the proposition that a claim for nominal damages automatically precludes
mootness is inconsistent with fundamental principles of justiciability.” Utah Animal Rts. Coal. v.
Salt Lake City Corp., 371 F.3d at 1263. This issue did eventually reach the Supreme Court in the
aforementioned Uzuegbunam v. Preczewski, but an eight-Justice majority in that case held that an
award of nominal damages can, on its own, redress a completed injury and thus a plaintiff’s
Constitutional claim for nominal damages precludes dismissal of the case on mootness grounds.
See 141 S. Ct. at 796-97. Judge McConnell’s view has a prominent defender at the Supreme Court,
however; the Honorable John Roberts, Chief Justice of the United States, in his dissent in
Uzuegbunam v. Preczewski, calls Judge McConnell’s Utah Animal Rights Coalition v. Salt Lake
City Corp. concurrence “insightful,” and agrees with Judge McConnell’s position regarding the
incompatibility of the nominal-damages-saves-justiciability rule with Article III of the
Constitution. 141 S. Ct. at 808 (Roberts, C.J., dissenting). Chief Justice Roberts expresses his
concern that a rule holding that nominal damages alone can save a case from mootness “turn[s]
judges into advice columnists,” because those judges can decide cases in which they cannot grant
the plaintiff any effectual relief -- turning Hamilton’s “least dangerous branch” into “the least
expensive source of legal advice.” Uzuegbunam v. Preczewski, 41 S. Ct. at 804, 807 (Roberts,
C.J., dissenting). Chief Justice Roberts also states:
65
The best that can be said for the Court’s sweeping exception to the case-orcontroversy requirement is that it may itself admit of a sweeping exception: Where
a plaintiff asks only for a dollar, the defendant should be able to end the case by
giving him a dollar, without the court needing to pass on the merits of the plaintiff’s
claims. Although we recently reserved the question whether a defendant can moot
a case by depositing the full amount requested by the plaintiff, Campbell-Ewald
Co. v. Gomez, 577 U.S. 153, 166 . . . (2016), our cases have long suggested that he
can, see, e.g., California v. San Pablo & Tulare R. Co., 149 U.S. 308, 313314 . . . (1893). The United States agrees, arguing in its brief in “support” of the
petitioners that “the defendant should be able to end the litigation without a
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resolution of the constitutional merits, simply by accepting the entry of judgment
for nominal damages against him.” Brief for United States as Amicus Curiae 29.
The defendant can even file an offer of judgment for one dollar, rendering the
plaintiff liable for any subsequent costs if he receives only nominal damages.
See Fed. Rule Civ. Proc. 68(d). This is a welcome caveat, and it may ultimately
save federal courts from issuing reams of advisory opinions. But it also highlights
the flimsiness of the Court’s view of the separation of powers. The scope of our
jurisdiction should not depend on whether the defendant decides to fork over a
buck.
141 S. Ct. at 808 (Roberts, C.J., dissenting). The Court understands these criticisms, which the
Chief Justice powerfully expresses with some punchy turns of phrase. The Court, however, as an
inferior court, is bound to apply faithfully Supreme Court and Tenth Circuit precedent, which
indicates that nominal damages, on their own, can render a Constitutional claim justiciable even
in the absence of other forms of relief. See Uzuegbunam v. Preczewski, 141 S. Ct. at 796-97; Utah
Animal Rts. Coal. v. Salt Lake City Corp., 371 F.3d at 1257; Comm. for First Amend. v. Campbell,
962 F.2d at 1526.
Moreover, even writing on a clean slate, the Court would side with the views the eightJustice majority expresses in Uzuegbunam v. Preczewski. The Court agrees with Justice Thomas’
observations in the Uzuegbunam v. Preczewski majority, in which he notes that -- as a historical
matter -- common law courts before and after the ratification of the Constitution reasoned that
“every legal injury necessarily causes damage.” 141 S. Ct. at 798. It follows that nominal
damages, “[d]espite being small . . . are certainly concrete,” in part because they can “‘affec[t] the
behavior of the defendant towards the plaintiff.’” 141 S. Ct. at 801 (quoting Hewitt v. Helms, 482
U.S. 755, 761 (1987)). The Court agrees with these observations, which accord with the Court’s
more general sense that judicial vindication of Constitutional rights -- even when a violation of
those rights does not give rise to sizable compensatory damages -- is an important interest that is
central to the Constitutional function of the federal judiciary and our system of government. See
Carey v. Piphus, 435 U.S. 247, 266 (1978)(Powell, J.)(“By making the deprivation of such rights
actionable for nominal damages without proof of actual injury, the law recognizes the importance
to organized society that those rights be scrupulously observed.”). On this note, the Court observes
that the Civil Rights Act of 1871, 17 Stat. 13 -- the Act which contains 42 U.S.C. § 1983, the
general use civil rights enforcement statute -- contains a jurisdiction-conferring provision, 28
U.S.C. § 1343(3), which contains no amount in controversy requirement. Significantly, at the
time, the general federal-question jurisdiction statute contained an amount in controversy
requirement. See Erwin Chemerinsky, Federal Jurisdiction § 8.1, at 524-25 (8th ed. 2021)(“The
absence of any amount in controversy requirement in § 1343(3) made that statute important at a
time when the general federal question jurisdiction statute had a minimum amount requirement.”).
This history indicates that, at the time Congress enacted its first general-purpose civil rights statute,
Congress intended that civil rights litigants had a path to the federal courthouse, no matter how
small their claim. While this historical evidence is not conclusive on the question of justiciability,
it suggests -- albeit indirectly -- that Congress seeks to allow the federal judiciary to adjudicate
Constitutional claims without regard to their monetary value.
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The Court has concluded that a due process claim is not moot where the plaintiff does not
receive the precise remedy he has requested. See Salazar v. City of Albuquerque, 776 F. Supp. 2d
1217, 1235-36 (D.N.M. 2011)(Browning, J.). In Salazar v. City of Albuquerque, a city bus driver
brings a due process claim against the City of Albuquerque after being fired from his job. See 776
As for the question whether a defendant could end a nominal damages suit -- without a
merits resolution -- by accepting an entry of a judgment for nominal damages against it, the
Supreme Court has not ruled explicitly on this issue. See Campbell-Ewald Co. v. Gomez, 577
U.S. 153, 166 (2016), as revised (Feb. 9, 2016)(“We need not, and do not, now decide whether the
result would be different if a defendant deposits the full amount of the plaintiff’s individual claim
in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that
amount.”). In addition, Justice Thomas, in his Campbell-Ewald Co. v. Gomez concurrence, argues
that such a procedure would have been unavailable at the common law. See 577 U.S. at 171
(Thomas, J., concurring)(“At common law, a plaintiff was entitled to ‘deny that [the tender was]
sufficient to satisfy his demand’ and accordingly ‘go on to trial.’” (quoting Raiford v. Governor,
29 Ala. 382, 384 (1856))). The Court also agrees with the author of a recent Harvard Law Review
note on the topic, which observes that “it is not clear that there is a logical distinction between the
rejection of an offered payment, as occurred in Campbell-Ewald, and the rejection of a tendered
payment, as might occur in the hypothetical the Campbell-Ewald Court reserved.” Leading Case,
Article III -- Standing -- Nominal Damages -- Uzuegbunam v. Preczewski, 135 Harv. L. Rev. 323,
331-32 (2021).
While an interesting -- largely academic -- issue, at the retail, trial court level, there rarely
is any mootness in a common sense use of that term in any case for nominal damages. Most cases
are litigated vigorously, because the Defendant does not want -- for a host of reasons -- to settle
the claim or have judgment entered against it. By any definition, such claims are not moot.
Moreover, the Chief Justice and Professor McConnell’s proposed rule cannot be applied in a
principled, neutral manner. If one dollar presents a moot case, it is not clear whether a ten-dollar
case, a hundred-dollar case, or a thousand-dollar case presents a moot case. As Eubulides of
Miletus famously wondered, how many individual grains of sand make a heap? In the case of
nominal damages and mootness, the Court is concerned that a finding of mootness may depend on
whether the court likes or dislikes the plaintiff’s case.
Finally, the interesting hypothetical of a defendant mooting a plaintiff’s case by making an
offer of judgment or sending over a dollar does not happen much, and, in any case, requires
acceptance. Most defendants -- particularly public officials and entities -- do not want a judgment
entered against them and do not want to be seen as paying any money. Such actions may be seen
as an admission or concession of guilt. Moreover, the plaintiff does not have to accept the offer
of judgment or the payment, and if the plaintiff does not, the State official or entity takes a potential
hit without any benefit. Being cute comes with a risk and a cost. See Payne v. Tri-State Careflight,
LLC, CV 14-1044, 2016 WL 9738302, at *21-23 (D.N.M. July 12, 2016)(Browning, J.)(discussing
mootness and offers of judgment in the class action context).
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F. Supp. 2d at 1223. Although the employee later is reinstated, the Court determines that his due
process claim is not moot, because, in addition to reinstatement, he also asks for punitive and backpay damages. See 776 F. Supp. 2d at 1235-36. The Court has evaluated mootness in several other
contexts. See Voter Reference Found., LLC v. Torrez, No. CIV 22-0222 JB/KK, 2024 WL
4008163, at *34 n.33 (D.N.M. Aug. 30, 2024)(Browning, J.)(concluding that, even where the
Eleventh Amendment bars nominal damages, a plaintiff’s viewpoint discrimination claim is not
moot, because the Court had not yet provided the plaintiff with its requested injunctive relief);
ETP Rio Rancho Park, LLC v. Grisham, 564 F. Supp. 3d 1023, 1069 (D.N.M.
2021)(Browning, J.)(concluding that trampoline facility operators’ due process and equal
protection claims against State officials alleging that COVID-19-public-health orders requiring
closure of their facilities were not moot, because, even though the plaintiffs’ “arguments contain
multiple allegations from previous [public health orders], which are no longer in effect,” the
COVID-19 pandemic “remains ongoing and the State continues to issue” public health orders,
which “could create new restrictions that again bring the questioned restrictions back into place”);
Nieto v. Univ. of N.M., 727 F. Supp. 2d 1176, 1191 (D.N.M. 2010)(Browning, J.)(determining
that a claim is not moot even when a State court previously has dismissed the claim for lack of
prosecution and for failure to appear, because there is still time for the plaintiff to seek
reconsideration of the decision or an appeal).
LAW REGARDING JUDICIAL REVIEW OF AGENCY ACTION
The APA provides:
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
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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. The
United States may be named as a defendant in any such action, and a judgment or
decree may be entered against the United States: Provided, that any mandatory or
injunctive decree shall specify the Federal officer or officers (by name or by title),
and their successors in office, personally responsible for compliance. Nothing
herein (1) affects other limitations on judicial review or the power or duty of the
court to dismiss any action or deny relief on any other appropriate legal or equitable
ground; or (2) confers authority to grant relief if any other statute that grants consent
to suit expressly or impliedly forbids the relief which is sought.
5 U.S.C. § 702. The APA empowers reviewing courts, “[t]o the extent necessary to decision and
when presented,” to “decide all relevant questions of law, interpret constitutional and statutory
provisions, and determine the meaning or applicability of the terms of an agency action.” 5 U.S.C.
§ 706. Such a reviewing court “shall”:
(1)
compel agency action unlawfully withheld or unreasonably delayed; and
(2)
hold unlawful and set aside agency action, findings, and conclusions found
to be -(A)
arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law;
(B)
contrary to constitutional right, power, privilege, or
immunity;
(C)
in excess of statutory jurisdiction, authority, or limitations,
or short of statutory right;
(D)
without observance of procedure required by law;
(E)
unsupported by substantial evidence in a case subject to
sections 556 and 557 of this title or otherwise reviewed on the record
of an agency hearing provided by statute; or
(F)
unwarranted by the facts to the extent that the facts are
subject to trial de novo by the reviewing court.
5 U.S.C. § 706. This statutory provision provides the “default standard” of review under the APA,
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which applies unless the agency’s enabling act -- or another statute -- provides otherwise. See
Dickson v. Sec’y of Def., 68 F.3d 1396, 1404 (D.C. Cir. 1995)(“[T]he APA provides a default
standard of judicial review -- arbitrary or capricious -- precisely for situations, such as this one,
where a statute does not otherwise provide a standard of judicial review.”). Technically, § 706
provides standards -- not “a standard” -- of review, and different provisions in § 706 are used
according to the subject of the review: for example, the arbitrary-and-capricious standard is used
to review “[i]nformal agency action,” and informal (notice and comment) rulemaking, City of
Colorado Springs v. Solis, 589 F.3d 1121, 1131 (10th Cir. 2009), and that standard is “‘very
deferential’ to the agency’s determination,” Kobach v. U.S. Election Assistance Commission, 772
F.3d 1183, 1197 (10th Cir. 2014)(quoting Western Watersheds Project v. Bureau of Land
Management., 721 F.3d 1264, 1273 (10th Cir. 2013)). Section 706’s substantial evidence test, on
the other hand, “applies almost exclusively to formal adjudication,” Ass’n of Data Processing
Service Organizations, Inc. v. Board of Governors of Federal Reserve System, 745 F.2d 677, 686
n.6 (D.C. Cir. 1984)(Scalia, J.)., because “a case subject to sections 556 and 557 of this title” refers
to the APA’s formal adjudication and formal rulemaking provisions, 5 U.S.C. § 706(2)(E). De
novo review provided in 5 U.S.C. § 706(2)(F), the APA’s least deferential standard of review, is
limited to use in two instances: “(1) when the action is adjudicatory in nature and the agency’s
fact-finding procedures inadequate; and (2) when issues not previously before the agency are
raised in a proceeding to enforce a nonadjudicatory action.” Franklin Sav. Ass’n v. Dir., Off. of
Thrift Supervision, 934 F.2d 1127, 1142 n.7 (10th Cir. 1991)(emphasis in original)(citing Citizens
to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971), abrogated on other grounds by
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Califano v. Sanders, 430 U.S. 99 (1977)). 66 Importantly, § 706 also instructs the reviewing court,
“[i]n making the foregoing determinations,” to “review the whole record or those parts of it cited
by a party.” 5 U.S.C. § 706. See Pennaco Energy, Inc. v. U.S. Dep’t of Interior, 377 F.3d 1147,
1157 (10th Cir. 2004)(rejecting the notion that the reviewing court’s analysis “should be limited
to those passages expressly relied upon by the [agency]”).
In the Tenth Circuit, pursuant to Olenhouse v. Commodity Credit Corp., 42 F.3d 1560,
1580 (10th Cir. 1994)(“Olenhouse”), “[r]eviews of agency action in the district courts [under the
APA] must be processed as appeals. In such circumstances the district court should govern itself
by referring to the Federal Rules of Appellate Procedure.” Olenhouse, 42 F.3d at 1580 (emphasis
in original). See Wildearth Guardians v. U.S. Forest Serv., 668 F. Supp. 2d 1314, 1323 (D.N.M.
2009)(Browning, J.). “As a group, the devices appellate courts normally use are generally more
consistent with the APA’s judicial review scheme than the devices that trial courts generally use,
In 1947, shortly after the APA’s passage, President Truman’s Attorney General -- and
future Associate Justice of the Supreme Court -- Tom Clark published the Attorney General’s
Manual on the Administrative Procedure Act, which was prepared as a guide to the then-nascent
APA. See United States Department of Justice, Tom C. Clark, Attorney General, Attorney
General’s Manual on the Administrative Procedure Act (1947)(“AG’s Manual on the APA”).
Therein, Attorney General Clark remarks -- contrary to the Supreme Court’s later interpretation of
§ 706(2)(F) in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. at 415 -- that “to the
extent that the facts are subject to trial de novo by the reviewing court,” § 706(2)(F), “obviously
refers only to those existing situations in which judicial review has consisted of a trial de novo.”
AG’s Manual on the APA at 109. In essence, AG’s Manual on the APA indicates that it was the
Attorney General’s view -- in 1947 -- that § 706(2)(F) does not establish a standard by which
courts could apply the de novo standard of review to situations outside of those which existed at
the time of the APA’s passage. While this interpretation is not binding on any court, perhaps
owing to its temporal proximity to the APA’s passage, even the Supreme Court has acknowledged
that “some deference” should be afforded to the AG’s Manual on the APA: “[T]he Attorney
General’s Manual on the Administrative Procedure Act 31, 35 (1947), a contemporaneous
interpretation previously given some deference by this Court because of the role played by the
Department of Justice in drafting the legislation, further confirms that view.” Vermont Yankee
Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 546 (1978)(footnote removed).
66
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which presume nothing about the case’s merits and divide burdens of proof and production almost
equally between the plaintiff and defendant.” N. New Mexicans Protecting Land and Water Rights
v. United States, 2015 WL 8329509 at *9.
1.
Reviewing Agency Factual Determinations.
Under the APA, a reviewing court must accept an agency’s factual determinations in
informal proceedings unless they are “arbitrary [or] capricious,” 5 U.S.C. § 706(2)(A), and its
factual determinations in formal proceedings unless they are “unsupported by substantial
evidence,” 5 U.S.C. § 706(2)(E). The APA’s two linguistic formulations amount to a single
substantive standard of review. See Ass’n of Data Processing Serv. Orgs., Inc. v. Bd. of Govs. of
the Fed. Reserve Sys., 745 F.2d at 683-84 (explaining that, as to factual findings, “there is no
substantive difference between what [the arbitrary-or-capricious standard] requires and what
would be required by the substantial evidence test, since it is impossible to conceive of a
‘nonarbitrary’ factual judgment supported only by evidence that is not substantial in the APA
sense” (emphasis in original)). See also Ass’n of Data Processing Serv. Orgs., Inc. v. Bd. of Govs.
of the Fed. Reserve Sys., 745 F.2d at 684 (“[T]his does not consign paragraph (E) of the APA’s
judicial review section to pointlessness. The distinctive function of paragraph (E) -- what it
achieves that paragraph (A) does not -- is to require substantial evidence to be found within the
record of closed-record proceedings to which it exclusively applies.” (emphasis in original)).
Again, in reviewing agency action under the arbitrary-or-capricious standard, a court
considers the administrative record -- or at least those portions of the record that the parties
provide -- and not materials outside of the record. See 5 U.S.C. § 706 (“In making the foregoing
determinations, the court shall review the whole record or those parts of it cited by a party.”); Fed.
R. App. P. 16 (“The record on review or enforcement of an agency order consists of . . . the order
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involved; . . . any findings or report on which it is based; and . . . the pleadings, evidence, and other
parts of the proceedings before the agency.”); Ass’n of Data Processing Serv. Orgs., Inc. v. Bd. of
Govs. of the Fed. Reserve Sys., 745 F.2d at 684 (“[W]hether the administrator was arbitrary must
be determined on the basis of what he had before him when he acted.”). See also Franklin Sav.
Ass’n v. Dir., Office of Thrift Supervision, 934 F.2d 1127, 1137 (10th Cir. 1991)(“[W]here
Congress has provided for judicial review without setting forth . . . procedures to be followed in
conducting that review, [T]he Supreme Court [of the United States] has advised such review shall
be confined to the administrative record and, in most cases, no de novo proceedings may be had.”).
Tenth Circuit precedent indicates, however, that the ordinary evidentiary rules regarding judicial
notice apply when a court reviews agency action. See N.M. ex. rel. Richardson v. Bureau of Land
Mgmt., 565 F.3d 683, 702 n.21 (10th Cir. 2009)(citing rule 201(b) of the Federal Rules of
Evidence)(“We take judicial notice of this document, which is included in the record before us in
[another case].”); New Mexico ex. rel. Richardson v. Bureau of Land Mgmt., 565 F.3d at 702 n.22
(“We conclude that the occurrence of Falcon releases is not subject to reasonable factual dispute
and is capable of determination using sources whose accuracy cannot reasonably be questioned,
and we take judicial notice thereof.”). In contrast, the United States Courts of Appeals for the
Ninth and Eleventh Circuits -- as well as decisions from the United States District Court for the
District of Columbia -- have held that taking judicial notice is generally inappropriate in APA
review, subject to extraordinary circumstances or inadvertent omission from the administrative
record. See Fence Creek Cattle Co. v. U.S. Forest Serv., 602 F.3d 1125, 1131 (9th Cir. 2010);
National Min. Ass’n v. Sec’y U.S. Dep’t of Labor, 812 F.3d 843, 875 (11th Cir. 2016); Dist. Hosp.
Partners, L.P. v. Sebelius, 971 F. Supp. 2d 15, 32 (D.D.C. 2013)(Huvelle, J.)(“The Court, however,
notes that taking judicial notice is typically an inadequate mechanism for a court to consider extra-
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record evidence when reviewing an agency action.”), aff’d sub nom. Dist. Hosp. Partners, L.P. v.
Burwell, 786 F.3d 46 (D.C. Cir. 2015). Broadly, the Tenth Circuit has expressed that, “[w]hile
judicial review of agency action is normally restricted to the administrative record, we have
recognized that consideration of extra-record materials is appropriate in ‘extremely limited’
circumstances, such as where the agency ignored relevant factors it should have considered or
considered factors left out of the formal record.” Lee v. U.S. Air Force, 354 F.3d 1229, 1242 (10th
Cir. 2004)(quoting Am. Min. Cong. v. Thomas, 772 F.2d 617, 626 (10th Cir. 1985)).
To fulfill its function under the APA, a reviewing court should engage in a “thorough,
probing, in-depth review” of the whole record before it when determining whether an agency’s
decision survives arbitrary-or-capricious review. Wyoming v. United States, 279 F.3d 1214, 1238
(10th Cir. 2002)(citing Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971)).
The Tenth Circuit explains:
In determining whether the agency acted in an arbitrary and capricious manner, we
must ensure that the agency decision was based on a consideration of the relevant
factors and examine whether there has been a clear error of judgment. We consider
an agency decision arbitrary and capricious if the agency relied on factors which
Congress had not intended it to consider, entirely failed to consider an important
aspect of the problem, offered an explanation for its decision that runs counter to
the evidence before the agency, or is so implausible that it could not be ascribed to
a difference in view or the product of agency expertise.
Colo. Env’t Coal. v. Dombeck, 185 F.3d 1162, 1167 (10th Cir. 1999). Arbitrary-or-capricious
review requires a district court “to engage in a substantive review of the record to determine if the
agency considered relevant factors and articulated a reasoned basis for its conclusions,”
Olenhouse, 42 F.3d at 1580, but it is not to assess the wisdom or merits of the agency’s decision,
see Colorado Environmental Coalition v. Dombeck, 185 F.3d at 1172. The agency must articulate
the same rationale for its findings and conclusions on appeal upon which it relied in its internal
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proceedings. See SEC v. Chenery Corp., 318 U.S. 80, 94 (1943)(“[T]he orderly functioning of the
process of review requires that the grounds upon which the administrative agency acted by clearly
disclosed and adequately sustained.”). While the court may not supply a reasoned basis for the
agency’s action that the agency does not give itself, the court should “uphold a decision of less
than ideal clarity if the agency’s path may reasonably be discerned.” Bowman Transp., Inc. v.
Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974).
2.
Reviewing Agency Legal Interpretations.
In promulgating and enforcing regulations, agencies must interpret federal statutes, their
own regulations, and the Constitution, and Courts reviewing those interpretations apply three
different deference standards, depending on the law at issue. First, as it pertains to federal statutes,
between 1984 and 2024, courts had to defer to agency interpretations of ambiguous statutes that
the federal agency administered, and this deference was known as Chevron deference -- named
after the 1984 case of Chevron, U.S.A., Inc. v. Natural Resource Defense Council, Inc., 467 U.S.
837 (1984)(“Chevron”). Chevron deference was a two-step process 67 that first asked whether the
statutory provision in question is clear and, if it is not clear, then asks whether the agency’s
interpretation of the unclear statute is reasonable. Chevron, 467 U.S. at 843. The Supreme Court,
however, overturns this deferential approach during its October 2023 term in Loper Bright
Enterprises v. Raimondo, 603 U.S. 369 (2024)(“Loper Bright”).
In Loper Bright, in an opinion that the Honorable John Roberts, Chief Justice of the United
States, authors, the Supreme Court reviews the traditional understandings of the judicial function,
67
There was, additionally, a threshold step -- which Professor Cass Sunstein famously
called “step zero” -- which asked whether Chevron deference applies to the agency decision at
all. See Cass R. Sunstein, Chevron Step Zero, 92 Va. L. Rev. 187, 191 (2006).
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quoting Alexander Hamilton for the proposition that “[t]he Framers . . . envisioned that the final
‘interpretation of the laws’ would be ‘the proper and peculiar province of the courts,’” Loper
Bright, 603 U.S. at 385 (quoting The Federalist no. 78 (Hamilton)), and the Honorable John
Marshall, former Chief Justice of the United States, for the oft-cited principle that “‘[i]t is
emphatically the province and duty of the judicial department to say what the law is,’” Loper
Bright, 603 U.S. at 385 (quoting Marbury v. Madison, 1 Cranch 137, 177 (1803)). The Supreme
Court describes that, although the New Deal “ushered in a ‘rapid expansion of the administrative
process,’” the Supreme Court continued to “adhere to the traditional understanding that questions
of law were for courts to decide, exercising independent judgment.” Loper Bright, 603 U.S. at
387 (quoting United States v. Morton Salt Co., 338 U.S. 632, 644 (1950)). The Supreme Court
then reads and analyzes the plain language of the APA’s § 706 -- which states at the outset that,
“[t]o the extent necessary to decision and when presented, the reviewing court shall decide all
relevant questions of law, interpret constitutional and statutory provisions, and determine the
meaning or applicability of the terms of an agency action,” 5 U.S.C. § 706 -- and concludes that
the APA “codifies for agency cases the unremarkable, yet elemental proposition reflected by
judicial practice dating back to Marbury: that courts decide legal questions by applying their own
judgment.” Loper Bright, 603 U.S. at 391.
The Supreme Court then explains that “[t]he deference that Chevron requires of courts
reviewing agency action cannot be squared with the APA,” Loper Bright, 603 U.S. at 396, largely
because “[t]he ‘law of deference’ . . . built on the foundation laid in Chevron [is] ‘[h]eedless of the
original design’ of the APA,” Loper Bright, 603 U.S. at 398 (quoting Perez v. Mortgage Bankers
Ass’n, 575 U.S. 92, 109 (2015)(Scalia, J., concurring in the judgment)). Moreover, according to
the Supreme Court, “agencies have no special competence in resolving statutory ambiguities.
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Courts do.” Loper Bright, 603 U.S. at 400-01. In lieu of Chevron’s presumption, the Supreme
Court observes that “[t]he better presumption is . . . that Congress expects courts to do their
ordinary job of interpreting statutes, with due respect for the views of the Executive Branch.”
Loper Bright, 603 U.S. at 403. This statement’s rule, therefore, is what takes the place of Chevron
deference: ordinary judicial interpretation of statutes, and courts are free to review and reject
statutory interpretations that federal agencies offer. 68
Second, despite Chevron’s demise, when agencies interpret their regulations -- to, for
example, adjudicate whether a regulated party is in compliance with them -- courts accord agencies
what is known as Auer or Seminole Rock deference. See Auer v. Robbins, 519 U.S. 452
(1997)(“Auer”); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945). This deference is
applied in the same manner as the erstwhile Chevron deference and is substantively identical.
There would be little reason to have a separate name for this doctrine, except that its logical
The Supreme Court notes, however, that its holding does not forbid Congress from
conferring some degree of statutory authority on agencies:
68
That is not to say that Congress cannot or does not confer discretionary
authority on agencies. Congress may do so, subject to constitutional limits, and it
often has. But to stay out of discretionary policymaking left to the political
branches, judges need only fulfill their obligations under the APA to independently
identify and respect such delegations of authority, police the outer statutory
boundaries of those delegations, and ensure that agencies exercise their discretion
consistent with the APA. By forcing courts to instead pretend that ambiguities are
necessarily delegations, Chevron does not prevent judges from making policy. It
prevents them from judging.
Loper Bright, 603 U.S. at 404. In addition, Loper Bright affirms that deference under Skidmore
v. Swift & Co., 323 U.S. 134,139-40 (1944), continues to apply. See Loper Bright, 603 U.S. at
393-96. Under this species of deference, “‘interpretations and opinions’ of the relevant agency,
‘made in pursuance of official duty’ and ‘based upon . . . specialized experience,’ ‘constitute[d] a
body of experience and informed judgment to which courts and litigants [could] properly resort
for guidance,’ even on legal questions.” Loper Bright, 603 U.S. at 388 (quoting Skidmore v. Swift
& Co., 323 U.S. at 139-40)(ellipses in Loper Bright and brackets in Loper Bright).
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underpinnings are much shakier, and its future is, accordingly, uncertain. Justice Scalia, after years
of applying the doctrine followed by years of questioning its soundness, finally denounced Auer
deference in 2013 in his dissent in Decker v. Northwest Environmental Defense Center, 568 U.S.
597 (2013). The Court cannot describe the reasons for Justice Scalia’s abandonment of the
doctrine better than the Justice himself:
For decades, and for no good reason, we have been giving agencies the
authority to say what their rules mean, under the harmless-sounding banner of
“defer[ring] to an agency’s interpretation of its own regulations.” Talk America,
Inc. v. Michigan Bell Telephone Co., [564] U.S. [50, 67] . . . (2011) (Scalia, J.,
concurring). This is generally called Seminole Rock or Auer deference. See
Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 65 S. Ct. 1215, 89 L. Ed.
1700 (1945); Auer v. Robbins, 519 U.S. 452, 117 S. Ct. 905, 137 L. Ed. 2d 79
(1997).
....
The canonical formulation of Auer deference is that we will enforce an
agency’s interpretation of its own rules unless that interpretation is “plainly
erroneous or inconsistent with the regulation.” Seminole Rock, supra, at 414, 65
S. Ct. 1215, 89 L. Ed. 1700. But of course whenever the agency’s interpretation of
the regulation is different from the fairest reading, it is in that sense “inconsistent”
with the regulation. Obviously, that is not enough, or there would be nothing for
Auer to do. In practice, Auer deference is Chevron deference applied to regulations
rather than statutes. See Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984). The agency’s
interpretation will be accepted if, though not the fairest reading of the regulation, it
is a plausible reading -- within the scope of the ambiguity that the regulation
contains.
Our cases have not put forward a persuasive justification for Auer
deference. The first case to apply it, Seminole Rock, offered no justification
whatever -- just the ipse dixit that “the administrative interpretation . . . becomes of
controlling weight unless it is plainly erroneous or inconsistent with the regulation.”
325 U.S., at 414, 65 S. Ct. 1215, 89 L. Ed. 1700. Our later cases provide two
principal explanations, neither of which has much to be said for it. See generally
Stephenson & Pogoriler, Seminole Rock’s Domain, 79 Geo. Wash. L. Rev. 1449,
1454-1458 (2011). First, some cases say that the agency, as the drafter of the rule,
will have some special insight into its intent when enacting it. E.g., Martin v.
Occupational Safety and Health Review Comm’n, 499 U.S. 144, 150-153, 111 S.
Ct. 1171, 113 L. Ed. 2d 117 (1991). The implied premise of this argument -- that
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what we are looking for is the agency’s intent in adopting the rule -- is false. There
is true of regulations what is true of statutes. As Justice Holmes put it: “[w]e do
not inquire what the legislature meant; we ask only what the statute means.” The
Theory of Legal Interpretation, 12 Harv. L. Rev. 417, 419 (1899). Whether
governing rules are made by the national legislature or an administrative agency,
we are bound by what they say, not by the unexpressed intention of those who made
them.
The other rationale our cases provide is that the agency possesses special
expertise in administering its “‘complex and highly technical regulatory program.’”
See, e.g., Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 S. Ct. 2381,
129 L. Ed. 2d 405 (1994). That is true enough, and it leads to the conclusion that
agencies and not courts should make regulations. But it has nothing to do with who
should interpret regulations -- unless one believes that the purpose of interpretation
is to make the regulatory program work in a fashion that the current leadership of
the agency deems effective. Making regulatory programs effective is the purpose
of rulemaking, in which the agency uses its “special expertise” to formulate the best
rule. But the purpose of interpretation is to determine the fair meaning of the rule - to “say what the law is.” Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 177, 2
L. Ed. 60 (1803). Not to make policy, but to determine what policy has been made
and promulgated by the agency, to which the public owes obedience. Indeed, since
the leadership of agencies (and hence the policy preferences of agencies) changes
with Presidential administrations, an agency head can only be sure that the
application of his “special expertise” to the issue addressed by a regulation will be
given effect if we adhere to predictable principles of textual interpretation rather
than defer to the “special expertise” of his successors. If we take agency enactments
as written, the Executive has a stable background against which to write its rules
and achieve the policy ends it thinks best.
Another conceivable justification for Auer deference, though not one that is
to be found in our cases, is this: If it is reasonable to defer to agencies regarding the
meaning of statutes that Congress enacted, as we do per Chevron, it is a fortiori
reasonable to defer to them regarding the meaning of regulations that they
themselves crafted. To give an agency less control over the meaning of its own
regulations than it has over the meaning of a congressionally enacted statute seems
quite odd.
But it is not odd at all. The theory of Chevron (take it or leave it) is that
when Congress gives an agency authority to administer a statute, including
authority to issue interpretive regulations, it implicitly accords the agency a degree
of discretion, which the courts must respect, regarding the meaning of the statute.
See Smiley v. Citibank (South Dakota), N.A., 517 U.S. 735, 740-741, 116 S. Ct.
1730, 135 L. Ed. 2d 25 (1996). While the implication of an agency power to clarify
the statute is reasonable enough, there is surely no congressional implication that
the agency can resolve ambiguities in its own regulations. For that would violate a
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fundamental principle of separation of powers -- that the power to write a law and
the power to interpret it cannot rest in the same hands. “When the legislative and
executive powers are united in the same person . . . there can be no liberty; because
apprehensions may arise, lest the same monarch or senate should enact tyrannical
laws, to execute them in a tyrannical manner.” Montesquieu, Spirit of the Laws bk.
XI, at 151-152 (O. Piest ed., T. Nugent transl. 1949). Congress cannot enlarge its
own power through Chevron -- whatever it leaves vague in the statute will be
worked out by someone else. Chevron represents a presumption about who, as
between the Executive and the Judiciary, that someone else will be. (The
Executive, by the way -- the competing political branch -- is the less congenial
repository of the power as far as Congress is concerned.) So Congress’s incentive
is to speak as clearly as possible on the matters it regards as important.
But when an agency interprets its own rules -- that is something else. Then
the power to prescribe is augmented by the power to interpret; and the incentive is
to speak vaguely and broadly, so as to retain a “flexibility” that will enable
“clarification” with retroactive effect. “It is perfectly understandable” for an
agency to “issue vague regulations” if doing so will “maximiz[e] agency power.”
Thomas Jefferson Univ., supra, at 525, 114 S. Ct. 2381, 129 L. Ed. 2d 405 (Thomas,
J., dissenting). Combining the power to prescribe with the power to interpret is not
a new evil: Blackstone condemned the practice of resolving doubts about “the
construction of the Roman laws” by “stat[ing] the case to the emperor in writing,
and tak[ing] his opinion upon it.” 1 W. Blackstone, Commentaries on the Laws of
England 58 (1765). And our Constitution did not mirror the British practice of
using the House of Lords as a court of last resort, due in part to the fear that he who
has “agency in passing bad laws” might operate in the “same spirit” in their
interpretation. The Federalist No. 81, at 543-544 (Alexander Hamilton)(J. Cooke
ed. 1961). Auer deference encourages agencies to be “vague in framing
regulations, with the plan of issuing ‘interpretations’ to create the intended new law
without observance of notice and comment procedures.” Anthony, The Supreme
Court and the APA: Sometimes They Just Don’t Get It, 10 Admin. L. J. Am. U. 1,
11-12 (1996). Auer is not a logical corollary to Chevron but a dangerous
permission slip for the arrogation of power. See Talk America, 564 U.S., at 68-69,
131 S. Ct. 2254, 180 L. Ed. 2d 96 Scalia, J., concurring); Manning, Constitutional
Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96
Colum. L. Rev. 612 (1996).
It is true enough that Auer deference has the same beneficial pragmatic
effect as Chevron deference: The country need not endure the uncertainty produced
by divergent views of numerous district courts and courts of appeals as to what is
the fairest reading of the regulation, until a definitive answer is finally provided,
years later, by this Court. The agency’s view can be relied upon, unless it is, so to
speak, beyond the pale. But the duration of the uncertainty produced by a vague
regulation need not be as long as the uncertainty produced by a vague statute. For
as soon as an interpretation uncongenial to the agency is pronounced by a district
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court, the agency can begin the process of amending the regulation to make its
meaning entirely clear. The circumstances of this case demonstrate the point.
While these cases were being briefed before us, EPA issued a rule designed to
respond to the Court of Appeals judgment we are reviewing. See 77 Fed. Reg.
72974 (2012) (to be codified in 40 C.F.R. pt. 122, subpt. B). It did so (by the
standards of such things) relatively quickly: The decision below was handed down
in May 2011, and in December 2012 the EPA published an amended rule setting
forth in unmistakable terms the position it argues here. And there is another respect
in which a lack of Chevron-type deference has less severe pragmatic consequences
for rules than for statutes. In many cases, when an agency believes that its rule
permits conduct that the text arguably forbids, it can simply exercise its discretion
not to prosecute. That is not possible, of course, when, as here, a party harmed by
the violation has standing to compel enforcement.
In any case, however great may be the efficiency gains derived from Auer
deference, beneficial effect cannot justify a rule that not only has no principled basis
but contravenes one of the great rules of separation of powers: He who writes a law
must not adjudge its violation.
Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597, 616-21 (Scalia, J., dissenting). Although the Court
shares Justice Scalia’s concerns about Auer deference, it is, for the time being, the law of the land,
and, as a federal district court, the Court must apply it. 69
Moreover, courts afford agencies no deference in interpreting the Constitution. See U.S.
West, Inc. v. FCC, 182 F.3d 1224, 1231 (10th Cir. 1999)(“[A]n unconstitutional interpretation is
not entitled to Chevron deference. . . . [D]eference to an agency interpretation is inappropriate not
only when it is conclusively unconstitutional, but also when it raises serious constitutional
questions.” (citing, e.g., Rust v. Sullivan, 500 U.S. 173, 190-91 (1991))). Courts have superior
competence in interpreting -- and Constitutionally vested authority and responsibility to
interpret -- the Constitution’s content. The presence of a Constitutional claim does not take a
Clarence Thomas, Associate Justice of the Supreme Court, and Neil Gorsuch, Associate
Justice of the Supreme Court, recently have echoed Justice Scalia’s concerns with Auer deference,
and have called on the Supreme Court to reconsider and overrule Auer. See Garco Construction,
Inc. v. Speer, 583 U.S. 1193, 1193-1195 (2018)(dissenting from denial of certiorari).
69
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court’s review outside of the APA, however -- § 706(2)(B) specifically contemplates adjudication
of Constitutional issues -- and courts still must respect agency fact-finding and the administrative
record when reviewing agency action for Constitutional infirmities; they just should not defer to
the agency on issues of substantive legal interpretation. See, e.g., Robbins v. U.S. Bureau of Land
Mgmt., 438 F.3d 1074, 1085 (10th Cir. 2006)(“We review Robbins’ [Constitutional] due process
claim against the [agency] under the framework set forth in the APA.”).
Last, the most recent development in Chevron-adjacent jurisprudence is the rise of the
“major questions doctrine.” 70
W. Virginia v. Env’t Prot. Agency, 597 U.S. 697, 724
(2022)(Roberts, C.J.)(“West Virginia v. EPA”). Concisely put, under this doctrine, a court should
not sustain an agency action that involves regulation of “major questions” -- those of great
The novelty -- or, alternatively, the historical basis -- of this doctrine is a source of debate,
even among the Justices. Compare West. Virginia v. EPA, 597 U.S. 697, 766 (2022)(Kagan, J.,
dissenting)(stating that the majority opinion “announces the arrival of the ‘major questions
doctrine’” (quoting Majority Op. at 724)), with West Virginia v. EPA, 597 U.S. at 740 (Gorsuch,
J., concurring)(stating that “[s]ome version” of the major questions doctrine “can be traced to at
least 1897”). See Thomas W. Merrill, The Major Questions Doctrine: Right Diagnosis, Wrong
Remedy at 2, Hoover Inst., Legitimacy of Administrative Law Essay Series, available at
https://www.hoover.org/sites/default/files/research/docs/ Merrill_WebReadyPDF.pdf (last visited
November 16, 2024)(arguing that West Virginia v. EPA crystalized previous expressions of
skepticism about “agency assertions of ‘broad and unusual authority through an implicit
delegation,’” into a distinct “doctrine” (quoting Gonzalez v. Oregon, 546 U.S. 243, 267 (2006));
Kevin O. Leske, Major Questions About the “Major Questions” Doctrine, 5 Mich. J. Env’t &
Admin. L. 479, 480 (2016)(“After over a decade of hibernation, the United States Supreme Court
has awoken the ‘major questions’ doctrine, which has re-emerged in an expanded form.” (source
of quoted material not cited)). Nevertheless, the Court is comfortable saying that West Virginia
v. EPA marks the “rise” of the major questions doctrine, because that case is the first time that the
Supreme Court states that it is applying something called the “major questions doctrine.” West
Virginia v. EPA, 597 U.S. at 724. Justice Kavanaugh, when serving as a Judge on the United
States Court of Appeals for the District of Columbia Circuit, once referred to something called the
“major rules doctrine” -- which he defined by quoting Justice Scalia’s observation that “[w]e
expect Congress to speak clearly if it wishes to assign to an agency decisions of vast economic and
political significance.” United States Telecom Ass’n v. Fed. Commc’ns Comm’n, 855 F.3d 381,
417 (D.C. Cir. 2017)( Kavanaugh, J., dissenting)(quoting Util. Air Regul. Grp. v. E.P.A., 573 U.S.
302, 324 (2014)).
70
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“‘economic and political significance,’” West Virginia v. EPA, 597 U.S. at 721 (quoting Food &
Drug Administration v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 147
(2000)(O’Connor, J.)) -- unless the agency can point to clear Congressional authorization for such
an action, see West Virginia v. EPA, 597 U.S. at 720-24. Although the majority opinion in
Supreme Court in West Virginia v. EPA never mentions the erstwhile Chevron doctrine, many
academic commentators have conceptualized the major questions doctrine as a “exception” or
“carve-out” to Chevron analysis. See Merrill, The Major Questions Doctrine: Right Diagnosis,
Wrong Remedy, supra, at 2 (“[T]he major questions doctrine should be seen as a carve-out from
the Chevron doctrine, one that all six justices in the conservative majority could agree on as a
partial corrective to some of the most frequently cited failings of the Chevron regime.”); William
N. Eskridge, Jr. et. al., Textualism’s Defining Moment, 123 Colum. L. Rev. 1611, 1675
(2023)(“Recently, the Major Questions Doctrine (MQD) has become a prominent textualistfavored, policy-based exception to Chevron[.]”); Daniel T. Deacon & Leah M. Litman, The New
Major Questions Doctrine, 109 Va. L. Rev. 1009, 1020-21 (2023)(“In a set of cases, the [Supreme]
Court has suggested either that an issue should not be analyzed using the Chevron framework
because Congress did not authorize agencies to resolve the issue due to its majorness, or that the
Chevron analysis operates differently because the agency policy is a major one.”); Mila Sohoni,
The Major Questions Quartet, 136 Harv. L. Rev. 262, 263-64 (2022)(arguing that West Virginia
v. EPA and its companion cases “unhitched the major questions exception from Chevron, which
has been silently ousted from its position as the starting point for evaluating whether an agency
can exert regulatory authority”). While many questions remain about the application of the major
questions doctrine, it is clear that -- at least for “major” questions -- an agency will be presumed
to have no authority to act unless Congress has “clearly” conferred on that agency the authority to
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act, regardless of Chevron deference. West Virginia v. EPA, 597 U.S. at 716.
3.
Waiving Sovereign Immunity.
The APA waives sovereign immunity with respect to non-monetary claims. See 5 U.S.C.
§ 702. The statute provides:
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. The United States may be named as a
defendant in any such action, and a judgment or decree may be entered against the
United States:
5 U.S.C. § 702. Claims for money damages seek monetary relief “to substitute for a suffered loss.”
Normandy Apartments, Ltd. v. U.S. Dep’t of Hous. & Urban Dev., 554 F.3d 1290, 1298 (10th Cir.
2009)(emphasis in original). Claims that do not seek monetary relief or that seek “specific
remedies that have the effect of compelling monetary relief” are not claims for monetary damages.
Normandy Apartments, Ltd. v. U.S. Dep’t of Hous. & Urban Dev., 554 F.3d at 1298. See, e.g.,
Aero Tech, Inc., v. United States Department of the Interior, No. CIV 23-0726 JB/JHR, 2024 WL
4581545 at n. 6 (D.N.M. October 25, 2024)(Browning, J.)(stating that the APA “waives sovereign
immunity for all actions that seek ‘relief other than money damages,’ 5 U.S.C. § 702, which
includes nonparty subpoenas” (citing Exxon Shipping Co. v. U.S. Dept. of the Interior, 34 F.3d
774, 778-79 n.9 (9th Cir. 1994)). To determine whether a claim seeks monetary relief, a court
must “look beyond the face of the complaint” and assess the plaintiff’s prime object or essential
purpose; “[a] plaintiff’s prime objective or essential purpose is monetary unless the non-monetary
relief sought has significant prospective effect or considerable value apart from the claim for
monetary relief.” Normandy Apartments, Ltd. v. U.S. Dep’t of Hous. & Urban Dev., 554 F.3d at
1296 (quoting Burkins v. United States, 112 F.3d 444, 449 (10th Cir. 1997)).
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The APA’s sovereign immunity waiver for claims “seeking relief other than money
damages” does not apply, however, “if any other statute that grants consent to suit expressly or
impliedly forbids the relief which is sought.” 5 U.S.C. § 702. The Tucker Act, 28 U.S.C. §§ 1346,
1491, permits district courts to hear some claims against the United States, but it also states that
“district courts shall not have jurisdiction of any civil action or claim against the United States
founded upon any express or implied contract with the United States.” 28 U.S.C. § 1346(a)(2). It
follows that the APA does not waive the United States’ sovereign immunity as to contract claims
even when those claims seek relief other than money damages, such as declaratory or injunctive
relief. See Normandy Apartments, Ltd. v. U.S. Dep’t of Hous. & Urban Dev., 554 F.3d at 1295.
Consequently, two questions determine whether the APA waives the United States’ sovereign
immunity as to a particular claim: “First, does [the] claim seek ‘relief other than money damages,’
such that the APA’s general waiver of sovereign immunity is even implicated? Second, does the
Tucker Act expressly or impliedly forbid the relief that Normandy seeks, such that the APA’s
waiver does not apply?” Normandy Apartments, Ltd. v. U.S. Dep’t of Hous. & Urban Dev., 554
F.3d at 1296 (quoting 5 U.S.C. § 702).
LAW REGARDING THE NEPA
The NEPA requires federal agencies to
include in every recommendation or report on proposals for legislation and other
major Federal actions significantly affecting the quality of the human environment,
a detailed statement by the responsible official on -(i)
the environmental impact of the proposed action,
(ii)
any adverse environmental effects which cannot be avoided
should the proposal be implemented,
(iii)
alternatives to the proposed action,
(iv)
the relationship between local short-term uses of man’s
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environment and the maintenance and enhancement of long-term
productivity, and
(v)
any irreversible and irretrievable commitments of resources
which would be involved in the proposed action should it be
implemented.
42 U.S.C. § 4332(C). “Although labeled an ‘environmental’ statute, NEPA is in essence a
procedural statute; it does ‘not require agencies to elevate environmental concerns over other
appropriate considerations.’” Park Cty. Res. Council, Inc. v. U.S. Dep’t of Agric., 817 F.2d 609,
620 (10th Cir. 1987)(emphasis in original)(quoting Baltimore Gas & Elec. Co. v. Nat. Res. Def.
Council, Inc., 462 U.S. 87, 97 (1983)). The NEPA’s procedural requirements exist to prevent
“precipitous federal decision making at the agency level which may fail to adequately consider the
environmental ramifications of agency actions.” Park Cty. Res. Council, Inc. v. U.S. Dep’t of
Agric., 817 F.2d at 620. The “NEPA merely prohibits uninformed -- rather than unwise -- agency
action.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351 (1989)(Stevens, J.).
When conducting NEPA review, the Tenth Circuit applies “a ‘rule of reason standard’ to determine
whether claimed NEPA violations ‘are merely flyspecks, or are significant enough to defeat the
goals of informed decision making and informed public comment.’” Dine Citizens Against
Ruining Our Env’t v. Bernhardt, 923 F.3d 831, 852 (10th Cir. 2019)(quoting Utahns for Better
Transp. v. U.S. Dep’t of Transp., 305 F.3d 1152, 1163 (10th Cir. 2002)).
Regulations provide guidance on the NEPA’s implementation. See 40 C.F.R. §§ 1500-08.
Those regulations are entitled to substantial deference. See Robertson v. Methow Valley Citizens
Council, 490 U.S. 332, 355-56 (1989); Andrus v. Sierra Club, 442 U.S. 347, 358 (1979). Council
on Environmental Quality (“CEQ”) regulations set out three ways that agencies can comply with
§ 4332(C)’s “detailed statement” requirement for “major Federal actions significantly affecting
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the quality of the human environment.” 42 U.S.C. § 4332(C). First, an agency can satisfy that
statutory requirement by preparing a detailed statement, called an EIS, that conforms to regulations
regarding its format, content, and methodology. See 40 C.F.R. §§ 1502, 1508.11.
Second, if an agency is unsure whether an EIS is required for a proposed action, i.e.,
whether the action qualifies as a “major Federal action[] significantly affecting the quality of the
human environment,” 42 U.S.C. § 4332(C), the agency may prepare an EA, see 40 C.F.R.
§§ 1503(a), 1501.4(b). An EA “provide[s] sufficient evidence and analysis for determining
whether to prepare” an EIS or, alternatively, “a finding of no significant impact,” 40 C.F.R.
§ 1508.9(a)(1), which is “a document . . . briefly presenting the reasons why an action . . . will not
have a significant effect on the human environment [such that an EIS] therefore will not be
prepared,” 40 C.F.R. § 1508.13. See 40 C.F.R. § 1502.2 (stating that, “[a]s in a finding of no
significant impact,” in an EIS’ treatment of “other than significant issues[,] . . . there should be
only enough discussion to show why more study is not warranted”). EAs also facilitate the
preparation of an EIS when one is necessary, and they help agencies comply with the NEPA when
an EIS is not necessary. See 40 C.F.R. § 1508.9(a)(2)-(3). An EA needs to include “brief
discussions of the need for the proposal, of alternatives as required by [42 U.S.C. § 4332(E), and]
of the environmental impacts of the proposed action and alternatives.” 40 C.F.R. § 1508.9(b).
Section 4332(E) requires agencies to “study, develop, and describe appropriate alternatives to
recommended courses of action in any proposal which involves unresolved conflicts concerning
alternative uses of available resources.” 42 U.S.C. § 4332(E).
Third, an agency can determine that an EIS is not required without needing to prepare an
EA when the proposed action falls within a CE. See 40 C.F.R. § 1508.4. A CE is “a category of
actions which do not individually or cumulatively have a significant effect on the human
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environment and which have been found to have no such effect in [NEPA] procedures adopted by
a Federal agency.” 40 C.F.R. § 1508.4. See Utah Env’t Cong. v. Russell, 518 F.3d 817, 821 (10th
Cir. 2008); WildEarth Guardians v. U.S. Forest Serv., 668 F. Supp. 2d at 1321-22.
1.
Extraordinary Circumstances.
If an agency determines that its action falls within a CE, it still may have to prepare an EA
or an EIS if the agency determines that there are extraordinary circumstances:
(b)
If an agency determines that a categorical exclusion identified in its agency
NEPA procedures covers a proposed action, the agency shall evaluate the
action for extraordinary circumstances in which a normally excluded action
may have a significant effect.
(1)
If an extraordinary circumstance exists, the agency
nevertheless may apply the categorical exclusion if the
agency conducts an analysis and determines that the
proposed action does not in fact have the potential to result
in significant effects notwithstanding the extraordinary
circumstance, or the agency modifies the action to avoid the
potential to result in significant effects. In these cases, the
agency shall document such determination and should
publish it on the agency’s website or otherwise make it
publicly available.
(2)
If the agency cannot categorically exclude the proposed
action, the agency shall prepare an environmental
assessment or environmental impact statement, as
appropriate.
40 C.F.R. § 1501.4(b). To determine “whether extraordinary circumstances related to a proposed
action warrant further analysis and documentation in an EA or an EIS,” an agency “should []
consider[]” seven resource conditions:
(i)
Federally listed threatened or endangered species or designated critical
habitat, species proposed for Federal listing or proposed critical habitat, or
Forest Service sensitive species;
(ii)
Flood plains, wetlands, or municipal watersheds;
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(iii)
Congressionally designated areas, such as wilderness, wilderness study
areas, or national recreation areas;
(iv)
Inventoried roadless area or potential wilderness area;
(iv)
Research natural areas;
(v)
American Indians and Alaska Native religious or cultural sites; and
(vi)
Archaeological sites, or historic properties or areas.
36 C.F.R. § 220.6(b)(1).
The mere presence of one or more of these resource conditions does not
preclude use of a categorical exclusion (CE). It is the existence of a cause-effect
relationship between a proposed action and the potential effect on these resource
conditions, and if such a relationship exists, the degree of the potential effect of a
proposed action on these resource conditions that determines whether extraordinary
circumstances exist.
36 C.F.R. § 220.6(b)(2). “[A]n extraordinary circumstance is found only when there exists a
potential for a significant effect on a resource condition.” Utah Env’t Cong. v. Dale Bosworth,
443 F.3d 732, 743 (10th Cir. 2006)(emphasis in original). An agency does not need to conduct
extensive analysis when evaluating resource conditions for extraordinary circumstances:
Reading the regulation to require detailed written analysis from the agency before
rejecting each extraordinary circumstance would seem to defeat the purpose of a
categorical exclusion -- “a streamlined process allowing minor projects to be
quickly implemented” -- and fly in the face of Tenth Circuit precedent that an
environmental effect must be “significant” before an agency wishing to rely on a
categorical exclusion must “engage in further analysis.”
Rocky Mountain Peace & Just. Ctr. v. United States Fish & Wildlife Serv., 548 F. Supp. 3d 1042,
1062 (D. Colo. 2021)(Brimmer, C.J.), aff’d, 40 F.4th 1133 (10th Cir. 2022)(quoting Utah Env’t
Cong. v. Dale Bosworth, 443 F.3d at 735, 742).
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ANALYSIS
The Court undertakes its analysis in three sections. First, the Court determines that the
Biological Center may intervene as of right or, in the alternative, permissively. Second, the Court
evaluates the Petitioners’ standing arguments, and concludes that: (i) only the Cattle Growers and
Spur Lake have standing for the Stipulation Claim; (ii) only the Cattle Growers, Spur Lake,
Shirley, and Campbell have standing to bring the NEPA Claim; and (iii) all the Petitioners have
standing to bring the Statutory Authority Claim and the Impoundment Regulation Claim. Third,
the Court turns to the merits. The Court dismisses the Stipulation Claim, because the Respondents
notified the Petitioners more than seventy-five days before commencing the Aerial Shooting. The
Court also dismisses the NEPA Claim and concludes that the Respondents do not violate the APA,
because the Respondents determined reasonably that: (i) at least one CE applies to the Aerial
Shooting; and (ii) there are no extraordinary circumstances that preclude CE use. Finally, the
Court dismisses the Statutory Authority Claim and the Impoundment Regulation Claim and
concludes that the Respondents do not violate the APA, because: (i) the Respondents are
authorized to preserve the Gila Wilderness and remove injurious animals; and (ii) Forest Service
regulations do not require the Respondents to impound the Gila Cows, which are not unauthorized
livestock, before killing them.
I.
THE BIOLOGICAL CENTER MAY INTERVENE.
The Court concludes that the Biological Center may intervene as of right, because the
Respondents cannot represent adequately the Biological Center’s interests in this lawsuit. In the
alternative, the Court concludes that the Biological Center may intervene permissively, because
the Biological Center’s intervention will not unduly delay or prejudice the adjudication of the
original parties’ rights. The Court addresses each intervention basis in turn.
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A.
THE BIOLOGICAL CENTER MAY INTERVENE AS OF RIGHT.
In addition to filing a timely motion to intervene, see Fed. R. Civ. P. 24, a movant who
lacks an unconditional statutory right to intervene must satisfy the following three criteria to
qualify for intervention of right: (i) the movant must have an interest in the litigation’s subject
matter; (ii) the movant’s interest will be impaired or impeded if the movant is not allowed to
intervene; and (iii) the litigation’s existing parties will not represent adequately the movant’s
interest, see Fed. R. Civ. P. 24(a)(2). The Court concludes that the Biological Center may
intervene as of right, because the Motion to Intervene is timely and the Biological Center satisfies
the three rule 24(a)(2) elements.
1.
The Motion to Intervene is Timely, and the Biological Center Has
Protectible Interests in This Litigation.
Although the Petitioners do not concede any rule 24(a) elements, see Motion to Intervene
Response at 7 n.6, the Petitioners do not dispute seriously whether the Biological Center’s Motion
to Intervene is timely or whether the Biological Center has protectible interests in this litigation’s
subject matter. See generally Motion to Intervene at 1-14. The Biological Center moved to
intervene on February 28, 2023, only one week after the Petitioners filed their Complaint. See
Motion to Intervene at 1; Complaint ¶ 1, at 1. The Biological Center asserted interests in protecting
riparian areas and preserving the protections it achieved in the August, 2021, Settlement
Agreement satisfy rule 24(a). See WildEarth Guardians v. Nat’l Park Serv., 604 F.3d at 1198
(“With respect to Rule 24(a)(2), we have declared it ‘indisputable’ that a prospective intervenor’s
environmental concern is a legally protectable interest.”)(quoting San Juan County, 503 F.3d at
1199); W. Energy All. v. Zinke, 877 F.3d 1157, 1165-67 (10th Cir. 2017)(concluding not only that
conservation groups’ “interests in reducing the instances and effects of oil and gas drilling on
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public lands alone would satisfy” rule 24(a), but also that their interest in “preserving” an
agreement with the federal government “that they worked to develop and implement” supports
intervention, where the conservation groups “spent years negotiating and litigating” the agreement,
and the petitioners’ requested relief would undermine the agreement’s goals). Accordingly, the
Court concludes that the Motion to Intervene is timely, and the Biological Center has protectible
interests in this litigation.
2.
The Respondents Do Not Represent Adequately the Biological Center’s
Interests.
Regarding adequate representation, the Court concludes that the Respondents do not
represent adequately the Biological Center’s interests. “[W]here there is evidence that the
government has multiple objectives, [the Tenth Circuit has] declined to find that it could
adequately represent intervenors’ interests.” W. Energy All. v. Zinke, 877 F.3d at 1169. Even
where “both the Forest Service and the environmental groups would defend the [challenged agency
action], we cannot assume that the environmental groups’ interests . . . wholly align with those of
the Forest Service.” New Mexico Off-Highway Vehicle All. v. U.S. Forest Serv., 540 F. App’x
877, 881 (10th Cir. 2013)(unpublished)(“New Mexico Off-Highway Vehicle Alliance”) 71. In New
New Mexico Off-Highway Vehicle Alliance v. United States Forest Service, 540
F. App’x 877 (10th Cir. 2013), is an unpublished opinion, but the Court can rely on an unpublished
opinion to the extent its reasoned analysis is persuasive in the case before it. See 10th Cir. R.
32.1(A) (“Unpublished decisions are not precedential, but may be cited for their persuasive
value.”). The Tenth Circuit states:
71
In this circuit, unpublished orders are not binding precedent, . . . and we have
generally determined that citation to unpublished opinions is not favored.
However, if an unpublished opinion or order and judgment has persuasive value
with respect to a material issue in a case and would assist the court in its disposition,
we allow a citation to that decision.
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Mexico Off-Highway Vehicle Alliance, environmental groups move to intervene as of right in an
APA case challenging the Forest Service’s reduction of roads and trails available for motorized
vehicle use. See New Mexico Off-Highway Vehicle Alliance, 540 F. App’x at 879. The Tenth
Circuit reverses the district court’s denial of intervention, reasoning that the Forest Service cannot
not represent adequately the environmental groups’ interests, because “there is no guarantee that
the Forest Service will make all of the environmental groups’ arguments in litigation.” New
Mexico Off-Highway Vehicle Alliance, 540 F. App’x at 881. During the challenged action’s
comment period, the New Mexico Off-Highway Vehicle Alliance proposed intervenors identify
specific environmental factors that concern them, and the Tenth Circuit determines that the Forest
Service’s final agency action “balance[ed] various interests,” including, but not limited to, those
of the proposed intervenors. See New Mexico Off-Highway Vehicle Alliance, 540 F. App’x at
881. Similarly, the Biological Center informed the Forest Service of several ecological concerns
that are tailored to its organizational mission as it relates to the Aerial Shooting. Compare
Biological Center Comments at 1-4 (flagging the Gila Cows’ impacts on protected wildlife, critical
habitat, and water quality), with New Mexico Off-Highway Vehicle Alliance, 540 F. App’x at 881
(summarizing proposed intervenors’ recommendations, including, among other things, that the
Forest Service “consider the impacts of motorized dispersed camping and motorized big game
retrieval, address the fact that the route system is greater than the Forest Service can afford,
decrease route density, consider water quality impacts, further consider noise impact, and analyze
cumulative impacts”). Also, like the challenged action in New Mexico Off-Highway Vehicle
United States v. Austin, 426 F.3d 1266, 1274 (10th Cir. 2005). The Court concludes that New
Mexico Off-Highway Vehicle Alliance v. United States Forest Service has persuasive value with
respect to a material issue, and will assist the Court in its disposition of this Memorandum Opinion
and Order.
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Alliance, the Aerial Shooting balances divergent interests, including those that the Biological
Center and the Cattle Growers do not share. See Decision Memo. at 7-8 (AR 005906-07). For
example, the Cattle Growers have an interest in protecting their branded cattle from being killed
during the Aerial Shooting. The Biological Center does not share that interest, because the
Biological Center has no branded cattle in the Gila National Forest. The Forest Service designed
the Aerial Shooting with this unshared interest in mind: the Forest Service provided notice to all
grazing permittees to ensure they tracked down any wandering cattle before the Aerial Shooting,
and the Forest Service promised to compensate any permittees whose cows are killed during the
Aerial Shooting. See Decision Memo. at 7-8 (AR 005906-07). The fact that the Forest Service
designed the Aerial Shooting to protect an interest that the Cattle Growers and the Biological
Center do not share demonstrates that the Forest Service and the Biological Center do not have the
same objectives, because the Forest Service wants to remove the Gila Cows in a way that considers
and protects the Cattle Growers’ interests, whereas the Biological Center wants to remove Gila
Cows, generally, without consideration of the Cattle Growers’ interests. Thus, contrary to the
Petitioners’ position, this situation is not one of “those cases . . . [where] the objective of the
applicant for intervention in a particular case is identical to that of one of the parties.” May 22,
2023, Tr. at 18:1-5 (McGuire). 72 Accordingly, the Court concludes that the Respondents cannot
In that line of cases, “even though a party seeking intervention may have different
‘ultimate motivation[s]’ from the governmental agency, where its objectives are the same, we
presume representation is adequate.” Tri-State, 787 F.3d at 1072-73 (quoting City of Stilwell, Okl.
v. Ozarks Rural Elec. Co-op. Corp., 79 F.3d at 1042). Tri-State also summarizes how San Juan
County does not undermine these cases:
72
In San Juan County, this court addressed en banc whether several
conservation groups were entitled to intervene in a federal quiet-title action brought
by San Juan County against the United States. 503 F.3d at 1167. Six judges
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represent adequately the Biological Center’s interests. See W. Energy All. v. Zinke, 877 F.3d at
1169.
3.
This Litigation May Adversely Affect the Biological Center’s Interests.
Regarding interest impairment, the Court concludes that this litigation may adversely affect
the Biological Center’s interests. “Establishing the potential impairment of such an interest
‘presents a minimal burden,’ and such an impairment may be ‘contingent upon the outcome of [ ]
litigation.’” Kane Cnty. v. United States, 928 F.3d at 891 (first quoting WildEarth Guardians v.
Nat’l Park Serv., 604 F.3d at 1199; and then quoting San Juan County, 503 F.3d at 1203). As it
relates to interest impairment, the parties disagree about what this case involves. See Motion to
Intervene Opposition at 10 (Petitioners)(arguing that this case is about how the Gila Cows must be
removed); Motion to Intervene Reply at 5 n.1 (Biological Center)(arguing that this case is about
whether the Gila Cows will be removed). And, although the Petitioners assert that the Gila Cows
will be removed “irrespective of the outcome of this case,” Motion to Intervene Opposition at 10,
that removal will look different if the Petitioners win. See Complaint ¶ 114), at 29-30 (requesting
injunctive relief to enjoin the Aerial Shooting).
Should the Petitioners prevail on their
Impoundment Regulation Claim, the Forest Service could remove the Gila Cows only after
concluded that the conservation groups did not have a sufficient “interest” under
Rule 24(a), id. at 1207 (Kelly, J., concurring), and thus had no occasion to address
whether the conservation groups' interests would be adequately represented by the
United States. Of the judges to address the adequate representation prong, all
seven -- Judge Hartz writing for three judges and Judge Ebel writing for four - agreed that a presumption of adequate representation applied where an applicant
for intervention had objectives “identical” to a party to the suit. Id. at 1204 (opinion
of Hartz, J.); id. at 1227 & n. 1 (Ebel, J., dissenting).
Tri-State, 787 F.3d at 1072 n.1.
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impounding them and putting them up for sale. Should the Petitioners prevail on their NEPA
claim, the Forest Service could remove the Gila Cows only after conducting a more thorough
environmental review. Either way, the Gila Cows remain in the Gila Wilderness for a longer
period and continue to damage the Gila Wilderness, which impairs the Biological Center’s unique
interests in protecting riparian areas. Cf. WildEarth Guardians v. U.S. Forest Serv., 573 F.3d at
995 (concluding that a suit challenging the Forest Service’s approval of mining expansion may
impair a mining company’s interests, because, “[i]f [the petitioners are] successful in this litigation,
operation of the [mining company’s mining project] will be impaired, or even halted”). Having
determined that the Biological Center satisfies all rule 24(a) elements, the Court concludes that the
Biological Center may intervene as of right.
B.
IN THE ALTERNATIVE, THE
INTERVENE PERMISSIVELY.
BIOLOGICAL
CENTER
MAY
In the alternative, the Court concludes that the Biological Center may intervene
permissively. A party may intervene permissively when: “(i) the application to intervene is timely;
(ii) the applicant’s claim or defense and the main action have a question of law or fact in common;
and (iii) intervention will not unduly delay or prejudice the adjudication of the original parties’
rights.” Wheeler Peak v. L.C.I.2, Inc., No. CIV-07-1117, 2009 WL 521799, at *3. See Fed. R.
Civ. P. 24(b). “While [the rule 24(b)] standard is, aptly, ‘permissive,’ it is also ‘a matter within
the district court’s discretion, and we will not reverse the district court’s ruling absent a clear abuse
of discretion.’” City of Stilwell v. Ozarks Rural Elec. Co-op. Corp., 79 F.3d at 1043 (quoting
Kiamichi R. Co. v. Nat’l Mediation Bd., 986 F.2d 1341, 1345 (10th Cir. 1993)). The Petitioners
do not argue that the Motion to Intervene is untimely, or that the Biological Center’s defenses do
not share a common factual or legal question with the main action. See Motion to Intervene
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Opposition at 10-11. Instead, the Petitioners assert that the Biological Center may not intervene
permissively, because the Forest Service represents adequately the Biological Center’s interests,
and intervention “will unnecessarily clutter the action and cause undue delay.” Motion to
Intervene Opposition at 10. Regarding the Petitioners’ first argument, the Court concludes again,
for the reasons outlined above, that the Respondents cannot represent the Biological Center
adequately. See supra at 173-76. Moreover, lack of adequate representation is not required for
permissive intervention, pursuant to rule 24(b). See Fed. R. Civ. P. 24(b). Regarding the
Petitioners’ second argument, the Petitioners do not identify any way that the Biological Center’s
intervention delays or clutters the action beyond forcing the Petitioners to respond to whatever
potentially duplicative arguments the Biological Center makes.
See Motion to Intervene
Opposition at 10-11. Neither of the Tenth Circuit cases that the Petitioners cite holds that
additional briefing and marginal legal costs preclude, or even weigh against, granting permissive
intervention. See City of Stilwell. v. Ozarks Rural Elec. Co-op. Corp., 79 F.3d at 1043 (affirming
district court’s denial of permissive intervention, where proposed intervenor “attempts to interject
additional issues in its proposed answer related to a determination of damages it has, or will,
incur”); Arney v. Finney, 967 F.2d 418, 421-22 (10th Cir. 1992)(affirming district court’s denial
of permissive intervention, where proposed intervenor who “remains a member of the class and is
similarly situated with other members of the class,” and whose “intervention would not aid the
class in its attempt to” litigate its case). Accordingly, the Court concludes that the Biological
Center may intervene permissively.
II.
AT LEAST ONE PETITIONER HAS STANDING TO BRING EACH CLAIM.
First, the Court analyzes which of the Petitioners have standing for: (i) the Stipulation
Claim; and (ii) the NEPA Claim; (iii) the Statutory Authority Claim; and (iv) the Impoundment
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Regulation Claim. The Court concludes: (i) only the Cattle Growers and Spur Lake have standing
to bring the Stipulation Claim; (ii) only the Cattle Growers, Spur Lake, Shirley, and Campbell
have standing to bring the NEPA Claim; (iii) all Petitioners have standing to bring the Statutory
Authority Claim and the Impoundment Regulation Claim; and (iv) no claims are moot.
Accordingly, at least one Petitioner has standing to bring each claim.
A.
ONLY THE CATTLE GROWERS AND SPUR LAKE HAVE STANDING
TO BRING THE STIPULATION CLAIM.
The Cattle Growers and Spur Lake (together, the “Stipulation Petitioners”) are the only
Petitioners who are parties to the June, 2022, Stipulation. See Complaint ¶ 77, at 21. Only
contracting parties and third-party beneficiaries may pursue contract claims. See Restatement
(Second) of Contracts §§ 304, 315 (1981); Colony Ins. Co. v. Burke, 698 F.3d 1222, 1230 (10th
Cir. 2012). To the extent that the June, 2022, Stipulation is a “valid and enforceable agreement,”
Complaint ¶ 77, at 21, it binds only the contracting parties, because it does not identify any
intended third-party beneficiary. Accordingly, the Court concludes that only the Cattle Growers
and Spur Lake have standing to bring the Stipulation Claims.
B.
ONLY THE CATTLE GROWERS, SPUR LAKE, SHIRLEY, AND
CAMPBELL HAVE STANDING TO BRING THE NEPA CLAIM.
Only the Cattle Growers, Spur Lake, Shirley, and Campbell have standing to bring the
NEPA Claim, because, although each Petitioner alleges an injury-in-fact within the NEPA’s zoneof-interests, Humane Farming’s cognizable injury is not germane to its organizational purpose.
Accordingly, Humane Farming does not have standing to bring the NEPA Claim. In addition to
the three Constitutional standing requirements -- injury, traceability, and redressability -- the
Petitioners also must show that their injuries “fall within the zone of interest to be protected or
regulated by the statute or constitutional guarantee in question.” Wyoming v. U.S. Dep’t of
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Interior, 674 F.3d 1220, 1230-31 (10th Cir. 2012). The Tenth Circuit holds that courts should
analyze whether a claim falls within a statute’s zone-of-interests only if “Article III standing
requirements are met.” Wyoming v. U.S. Dep’t of Interior, 674 F.3d at 1230-31. 73 Accordingly,
the Court first analyzes whether each Petitioner satisfies traditional Article III standing and then
analyzes whether each Petitioner’s cognizable injuries are within the NEPA’s zone-of-interests.
Within the traditional Article III standing inquiry, the Court evaluates separately whether the Cattle
Growers or Humane Farming have standing either by suffering an injury in its own right, or by
asserting organizational standing by demonstrating that: (i) its members would otherwise have
standing to sue in their own right; (ii) it seeks to protect interests that are germane to the
organization’s purpose; and (iii) neither the claim asserted nor the relief requested requires
In Wyoming v. U.S. Dep’t of Interior, the Tenth Circuit categorizes the zone-of-interests
inquiry as one of prudential standing. See Wyoming v. U.S. Dep't of Interior, 674 F.3d at 123031. Two years later, however, the Supreme Court clarifies that zone-of-interests analysis is not
about prudential standing, because zone-of-interests analysis addresses whether Congress has
authorized the suit at issue, and not whether Courts should, as a matter of prudence, deny standing
to a plaintiff who otherwise satisfies Article III’s requirements. See Lexmark Int’l, Inc. v. Static
Control Components, Inc., 572 U.S. 118, 125-28 (2014)(“Lexmark”). In Lexmark, the Supreme
Court concludes that, although it “admittedly [has] placed that test under the ‘prudential’ rubric in
the past,” zone-of-interests analysis “does not belong there,” given that “[w]hether a plaintiff
comes within the zone of interests is an issue that requires us to determine, using traditional tools
of statutory interpretation, whether a legislatively conferred cause of action encompasses a
particular plaintiff's claim.” Lexmark, 572 U.S. at 127 (citing Steel Co. v. Citizens for Better
Env’t, 523 U.S. 83, 97, and n. 2, (1998); Clarke v. Sec. Indus. Assn., 479 U.S. 388, 394-395,
(1987); Holmes v. Sec. Inv. Prot. Corp., 503 U.S. 258, 288 (1992)(Scalia, J., concurring in
judgment))(internal quotations have no citations). The Court interprets Lexmark’s clarification to
mean that zone-of-interests analysis concerns statutory rather than prudential issues -- even though
Lexmark also rejects referring to zone-of-interests analysis as a matter of “statutory standing.”
Lexmark, 572 U.S. at 128 n.4. Regardless, Lexmark does not hold that the zone-of-interests test
belongs to any of the traditional Article III inquiries -- injury, traceability, and redressability -- and
the Court will apply the zone-of-interests test only to those claims that already have met those
three requirements. See Lexmark, 572 U.S. at 129-132, Wyoming v. U.S. Dep’t of Interior,
567F.3d at 1230-31.
73
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participation of the organization’s members in the lawsuit. See Students for Fair Admissions, Inc.
v. President & Fellows of Harvard Coll., 600 U.S. at 199.
1. Only the Cattle Growers, Spur Lake, Shirley, and Campbell Have
Traditional Article III Standing to Bring the NEPA Claim.
Regarding Article III standing, the Court agrees with the Respondents, and focuses only
on whether the Petitioners establish an injury-in-fact and whether the Cattle Growers and Humane
Farming allege injuries that are germane to their organizational purposes. See Respondents’
Merits Response at 14-17 (declining to address traceability and redressability). The aesthetic and
recreational injuries that the Cattle Growers, Shirley, and Humane Farming allege -- i.e., loss of
enjoyment of a serene wilderness that the Aerial Shooting has damaged environmentally, see
Patterson Decl. ¶¶ 15-22, at 5-7; Shirley Decl. ¶¶ 18-24, at 5-7; Kinsella Decl. ¶¶ 5-25, at 1-7;
Thompson Decl. ¶¶ 9-22, at 2-6 -- are bona fide injuries-in-fact, see Citizens for Constitutional
Integrity v. United States, 57 F.4th 750, 760 (10th Cir. 2023), cert. denied, 144 S. Ct. 94
(2023)(“The Supreme Court and [the Tenth Circuit] have repeatedly ‘held that environmental
plaintiffs adequately allege injury in fact when they aver that they use the affected area and are
persons [“]for whom the aesthetic and recreational values of the area will be lessened[”] by the
challenged activity.’”)(quoting Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528
U.S. 167, 183 (2000)(quoting Sierra Club v. Morton, 405 U.S. 727, 735 (1972)))(quotations in
brackets added). The economic injuries that the Cattle Growers, Shirley, Spur Lake, and Campbell
allege -- i.e., environmental degradation that damages their businesses, see Patterson Decl. ¶ 16,
at 5 (“The operations of NMCGA members are highly intertwined with the outdoors and the
environment, and thus harm to the environment, and particularly the Gila Wilderness, will
necessarily harm the operations of NMCGA members adjacent to and surrounding the Gila
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National Forest.”); Shirley Decl. ¶ 19, at 6 (similar); Campbell Decl. ¶ 6-12, at 1-3 (alleging that
he lost campground customers after several campers and hikers experienced foul odors and drank
potentially contaminated water from the rotting Gila Cow carcasses in March, 2022) -- also are
sufficiently concrete. See Ass’n of Data Processing Serv. Organizations, Inc. v. Camp, 397 U.S.
150, 152 (1970)(Douglas, J.)(holding that a data processing service provider alleges injury-in-fact,
where the provider asserts that the respondent’s ruling allowing national banks to make data
processing services available to other banks and bank customers “might entail some future loss of
profits”); Catron Cnty. Bd. of Comm’rs v. U.S. Fish & Wildlife Serv., 75 F.3d 1429, 1433 (10th
Cir. 1996)(“Catron County”)(concluding that a municipality alleges injury-in-fact under the
NEPA, where the municipality asserts that “designation of critical habitat would prevent the
diversion and impoundment of water by the [municipality], thereby causing flood damage to
county-owned property”); Foremaster v. City of St. George, 882 F.2d 1485, 1487 (10th Cir.
1989)(concluding that the plaintiff alleges injury-in-fact, where the plaintiff asserts that the
defendant municipality’ electric subsidy for a church causes him to pay higher rates for electricity,
where “[t]o the extent that this subsidy diminished total revenues for the City’s Utility Department,
the Utility Department and the purchasers of municipal electricity are less well off and those
purchasers may very well pay higher rates”); The Navajo Nation v. Urb. Outfitters, Inc., No. 12195 BB/LAM, 2015 WL 11089523, at *3 (D.N.M. Dec. 21, 2015)(Black, J.)(“Injury to
commercial reputation is sufficient to establish an injury in fact under Article III.”)(citing Meese
v. Keene, 481 U.S. 465, 473-77 (1987)).
Humane Farming’s psychological injuries -- i.e.,
psychological distress at learning about or possibly viewing the dead Gila Cows, see Kinsella
Decl. ¶¶ 11-25, at 2-7; Thompson Decl. ¶¶ 6-22, at 2-6 -- are not sufficiently concrete, however,
because there is no indication that any of its members have, or will, observe any Gila Cow
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carcasses directly, see Kinsella Decl. ¶ 18, at 4 (alleging that he visits the Gila Wilderness “at least
monthly”); Thompson Decl. ¶ 16, at 4 (alleging that she and her family visit the Gila Wilderness
“as often as we can”). No Humane Farming member alleges that they intend to visit the project
area shortly after the Aerial Shooting, such that they might stumble upon a rotting Gila Cow
carcass. A general interest in returning to an area that exhibits psychologically distressing
environmental damage is not enough to show an actual or imminent injury:
And the affiants’ profession of an “inten[t]” to return to the places they had visited
before -- where they will presumably, this time, be deprived of the opportunity to
observe animals of the endangered species -- is simply not enough. Such “some
day” intentions -- without any description of concrete plans, or indeed even any
specification of when the some day will be -- do not support a finding of the “actual
or imminent” injury that our cases require.
Lujan v. Defs. of Wildlife, 504 U.S. 555, 564 (1992)(emphasis in original)(internal quotations
have no citation). See Metro. Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 779
(1983)(Brennan, J., concurring)(noting that a plaintiff’s psychological injury borne “out of a
perception of risk” of a nuclear accident, rather than from a “direct sensory impact of a change in
the physical environment,” is not cognizable). Although an organization’s injury is concrete if its
members observe an inhumane killing directly, see Fund for Animals, Inc. v. Lujan, 962 F.2d
1391, 1396 (9th Cir. 1992)(concluding that animal protection organization alleged a cognizable
psychological injury based on its members’ witnessing bison being shot and killed, given that this
“injury ar[ose] from
a ‘direct sensory
impact of a change in [their] physical
environment’”)(quoting Animal Lovers Volunteer Ass’n Inc., (A.L.V.A.) v. Weinberger, 765 F.2d
937, 938 (9th Cir. 1985)(brackets in Fund for Animals, Inc. v. Lujan, but not in Animal Lovers
Volunteer Ass’n Inc., (A.L.V.A.) v. Weinberger), Humane Farming does not and cannot allege
that they observed directly the Animal Inspecting Service shooting the Gila Cows, because the
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Forest Service closed the project area during the Aerial Shooting. See Decision Memo. at 8
(AR 005906). Accordingly, the Court concludes that: (i) the Cattle Growers’, Shirley’s, and
Humane Farming’s recreational and aesthetic, non-psychological injuries are cognizable; (ii) the
Cattle Growers’, Shirley’s, Spur Lake’s, and Campbell’s economic injuries are cognizable; and
(iii) Humane Farming’s psychological aesthetic injuries are not cognizable. 74
Having also
determined that the Petitioners have established traceability and redressability, the Court concludes
that the non-organizational Petitioners -- i.e., Shirley, Spur Lake, and Campbell -- have Article III
standing to pursue the NEPA claims.
Turning to organizational standing -- which is also an Article III issue, see Students for
Fair Admissions, Inc. v. President & Fellows of Harvard College, 600 U.S at 199 -- the Court
concludes that the Cattle Growers -- but not Humane Farming -- have organizational standing,
because the Cattle Growers’ cognizable injuries are germane to their organization’s purpose,
whereas Humane Farming’s cognizable injuries are not. To invoke organizational standing, an
organization must demonstrate that: (i) its members have standing to sue in their own right; (ii) the
interests that the organization seeks to protect are germane to the organization’s purpose; and
(iii) neither the claim asserted nor the relief requested requires individual members to participate
in the lawsuit. See Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll.,
600 U.S at 199. Here, each organization’s cognizable injuries are based on injuries to their
The Petitioners also allege that Humane Farming members were deprived of an
opportunity to comment on the Aerial Shooting. Notwithstanding that nothing stopped Humane
Farming members from participating in the scoping process, this alleged procedural harm, without
more, does not confer Article III standing. See Summers v. Earth Island Inst., 555 U.S. at 496
(rejecting a party’s argument that it has standing based on alleged denial of “the ability to file
comments on some Forest Service actions,” because “deprivation of a procedural right without
some concrete interest that is affected by the deprivation -- a procedural right in vacuo -- is
insufficient to create Article III standing”).
74
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members. See supra, at 181-83 (concluding that the Cattle Growers’ members allege cognizable
recreational, aesthetic, and economic injuries, and Humane Farming members allege cognizable
aesthetic injuries). Thus, the Court concludes that the Cattle Growers’ members and Humane
Farming’ members have standing to sue in their own right. The Court also agrees with the
Respondents that this lawsuit does not require the participation of either organization’s members.
See Respondents’ Merits Response at 14-16. Accordingly, the Court focuses only on whether the
alleged injuries are germane to each organization’s purpose. On this point, the Petitioners argue
that: (i) the Cattle Growers’ “mission is focused on advocating for the interests of cattle growers,
which includes supporting environmental policies that protect the environment and the wise use
of natural resources”; and (ii) Humane Farming’s “organizational mission is focused on protecting
animals from cruelty and abuse, which includes protecting the public and the environment from
the impact of animal cruelty and abuse.” Petitioners’ Merits Reply at 11. The Court concludes
that the Cattle Growers’ cognizable NEPA injuries -- which include recreational, aesthetic, and
economic harm which environmental degradation causes -- inhibit its members’ ability to make
full use of the Gila Wilderness. Promoting a sustainable, productive, and positive relationship
between its members and the Gila Wilderness is within the Cattle Growers’ organizational mission.
Accordingly, the Cattle Growers’ cognizable NEPA injuries are germane to the organization’s
purpose and the Cattle Growers have organizational standing to bring the NEPA claim. Humane
Farming’s cognizable NEPA injuries are limited to its members’ inhibited aesthetic enjoyment of
the Gila Wilderness that environmental degradation causes. Those injuries do not fall within
Humane Farming’s organizational mission, which concerns preventing animal cruelty, and not
promoting environmental health and recreation. Accordingly, the Court concludes that Humane
Farming does not have organizational standing to bring the NEPA Claim.
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2.
The Cattle Growers, Spur Lake, Shirley, and Campbell Allege Injuries
That Fall Within the NEPA’s Zone-of-Interests.
In addition to having Article III standing, the Cattle Growers, Shirley, Spur Lake, and
Campbell (together, the “NEPA Petitioners”) satisfy the NEPA’s zone-of-interests test. The Cattle
Growers and Shirley allege recreational, aesthetic, and economic injuries related to their interests
in the Gila Wilderness. See Patterson Decl. ¶¶ 15-22, at 5-7; Shirley Decl. ¶¶ 18-24, at 5-7;
Kinsella Decl. ¶¶ 5-25, at 1-7; Thompson Decl. ¶¶ 9-22, at 2-6. These injuries fall within the
NEPA’s zone-of-interests. See Comm. to Save the Rio Hondo v. Lucero, 102 F.3d 445, 448 (10th
Cir. 1996)(“[W]e hold that because the [plaintiff] seeks to protect its recreational, aesthetic, and
consumptive interests in the land and water surrounding their village, their alleged injuries fall
within the ‘zone of interests’ that the National Environmental Policy Act was designed to
protect.”)(quoting Lujan v. Nat’l Wildlife Fed’n, 497 U.S.at 883). Spur Lake and Campbell also
allege economic injuries related to their interests in the Gila Wilderness. See Shirley Decl. ¶ 19,
at 6; Campbell Decl. ¶ 8, at 2. Although “[p]urely economic harm does not fall within the NEPA’s
zone of interests,” Jarita Mesa Livestock Grazing Ass’n v. U.S. Forest Serv., 140 F. Supp. 3d 1123,
1180 (D.N.M. 2015)(Browning, J.), a plaintiff alleging economic injuries that are “perceptible and
environmental, not merely speculative or purely economic,” satisfies the zone-of-interests test,
Catron County, 75 F.3d at 1433. For example, in Catron County, the Tenth Circuit concludes that
a municipality’s “threatened injury to its property” from flood damage that may result from a
federal agency’s decision falls within the NEPA’s zone-of-interests, because the threatened injury
stems from perceptible future environmental harm. Catron County, 75 F.3d at 1433-34. Similarly,
the Cattle Growers, Shirley, Spur Lake, and Campbell allege that the Respondents’ NEPA
violation may cause perceptible environmental harm -- e.g., contaminating a river from which their
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cows or customers drink -- that may damage their property. See Patterson Decl. ¶ 16, at 5; Shirley
Decl. ¶ 19, at 6; Campbell Decl. ¶¶ 6-12, at 1-3. Accordingly, the Court concludes that the NEPA
Petitioners’ injuries fall within the NEPA’s zone-of-interests, and, thus, the NEPA Petitioners have
standing to bring the NEPA Claim.
C.
ALL PETITIONERS HAVE STANDING TO BRING THE STATUTORY
AUTHORITY CLAIM AND THE IMPOUNDMENT REGULATION
CLAIM.
While the NEPA Claim alleges that the Aerial Shooting is unlawful, because the
Respondents fail to investigate adequately the Aerial Shooting’s environmental impacts, the
Statutory Authority Claim and the Impoundment Regulation Claim allege that the Aerial Shooting
is unlawful, no matter how the Respondents develop it, because the Respondents either lack
authority to conduct it or they violate their own regulations in conducting it. See Complaint ¶¶ 83113, at 21-29. The Statutory Authority Claim and the Impoundment Regulation Claim allege that
the fact that the Respondents shot the Gila Cows from a helicopter instead of impounding them,
and not the environmental damage that arises from that action, injures the Petitioners. Compare
Complaint ¶¶ 83-113, at 21-29, with id. ¶¶ 97-113, at 24-29. Accordingly, the Court analyzes the
Statutory Authority Claim and the Impoundment Regulation Claim standing issues in reference to
the injuries that are traceable to those the violations that those claims allege -- i.e., whatever
injuries stem from the Respondents’ decision to shoot the Gila Cows en masse instead of
impounding and selling them -- and not in reference to those injuries that stem from environmental
degradation that the Aerial Shooting allegedly causes. See Lexmark Int’l, Inc. v. Static Control
Components, Inc., 572 U.S. 118, 125, (2014)(“The plaintiff must have suffered or be imminently
threatened with a concrete and particularized ‘injury in fact’ that is fairly traceable to the
challenged action of the defendant and likely to be redressed by a favorable judicial
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decision.”)(quoting Lujan v. Defs. of Wildlife, 504 U.S. at 560). As in its NEPA Claim standing
analysis, the Court first evaluates whether each Petitioner has traditional Article III standing, and
then evaluates whether each Petitioner’s injuries fall within the relevant statute’s zone-of-interests.
1.
All Petitioners Have Traditional Article III Standing for the Statutory
Authority Claim and the Impoundment Regulation Claim.
Each Petitioner has traditional Article II standing for the Statutory Authority Claim and for
the Impoundment Regulation Claim, because they each allege cognizable economic injuries
arising from the Aerial Shooting. The Cattle Growers, Spur Lake, and Shirley allege that:
(i) because their cattle have entered vacant allotments in the Gila Wilderness, they likely have
entered the project area; and (ii) if their cattle are killed during the Aerial Shooting -- instead of
impounded, as 36 C.F.R. § 262.10 requires -- they will not be able to recover their dead cattle’s
value from the Respondents, because they likely cannot discover the carcasses quickly enough to
identify them before they rot in a vast project area that spans over 100,000 acres. See Patterson
Decl. ¶¶ 6-10, at 2-3; Shirley Decl. ¶¶ 8-12, at 2-4. The Cattle Growers, Spur Lake, and Shirley
also allege that the Aerial Shooting denies them the opportunity to take advantage of the Livestock
Board directive that allows them to gather and purchase unbranded cattle in the Gila Wilderness.
See Patterson Decl. ¶¶ 11-14, at 4-5; Shirley Decl. ¶¶ 13-17, at 4-5. The Respondents argue that
neither of these allegations establish standing. First, they contend that the possibility that branded
cattle may be killed during the Aerial Shooting is not an injury-in-fact, see Respondents’ Merits
Response at 11-13 (citing Clapper v. Amnesty International USA, 568 U.S. at 409), and, even if
one of the Petitioners’ cows are killed, that Petitioner misses only the opportunity to re-purchase
the Petitioner’s wandering cattle under 36 C.F.R. § 262.10(e), which requires the Petitioner to
reimburse the Forest Service for impoundment and unauthorized grazing fees, rendering the re-
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purchase price higher than market value, see February 1, 2024, Tr. at 102:13-24 (McGuire); id. at
6:15-9:8 (Hamilton). Second, they contend that neither the Livestock Board’s directive nor
36 C.F.R. § 262.10 give the public a right to purchase Gila Cows at an auction, and thus the Court
could not redress the alleged lost purchasing opportunity. See February 1, 2024, Tr. at 9:9-11:18
(Hamilton)(citing Baca v. King, 92 F.3d 1031).
The Court agrees with the Petitioners, and concludes that both standing theories allege
cognizable injuries fairly traceable to the Respondents’ decision to kill the Gila Cows instead of
impounding them, and that the Court can redress those injuries. Regarding the first standing
theory -- i.e., that the Cattle Growers’, Spur Lake’s, and Shirley’s cattle may be killed during the
Aerial Shooting -- the Court concludes that these three Petitioners allege cognizable imminent
injuries, because there is a substantial risk that the Forest Service will kill their cows and that they
will not be able to redeem them successfully. 75 See Rocky Mountain Gun Owners v. Polis, 121
F.4th 96, 109 (10th Cir. 2024)(“[A] plaintiff need not wait for the harm to occur to satisfy the
injury-in-fact requirement.”); Kane Cnty. v. United States, 928 F.3d at 888 (“Imminence is ‘a
somewhat elastic concept,’ and ‘[a]n allegation of future injury may suffice if the threatened injury
is “certainly impending,” or there is a “substantial risk that the harm will occur.”‘”)(first quoting
Lujan v. Defenders of Wildlife, 504 U.S. at 564; and then quoting Susan B. Anthony List v.
Driehaus, 573 U.S. 149, 158 (2014)(quoting Clapper v. Amnesty Int’l USA, 568 U.S. at 414 n.5));
The Court acknowledges that no Petitioner alleges that the Forest Service killed any
branded cattle during the Aerial Shooting. Standing, however, “is determined as of the time the
action is brought.” Smith v. U.S. Court of Appeals, for the Tenth Circuit, 484 F.3d 1281, 1285
(10th Cir. 2007)(quoting Nova Health Sys. v. Gandy, 416 F.3d 1149, 1154 (10th Cir.
2005)(Ebel, J.)). Accordingly, whether the Forest Service actually killed any of the Cattle
Growers’, Spur Lake’s, or Shirley’s cattle does not impact whether those petitioners had standing
when they filed the Complaint.
75
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Blum v. Yaretsky, 457 U.S. 991, 1001, (1982)(concluding that nursing home residents alleging
that nursing homes do not provide adequate notice before transferring them to lower levels of care
have standing, because “the threat of facility-initiated discharges or transfers to lower levels of
care is sufficiently substantial”). The Tenth Circuit has found injuries to be sufficiently imminent,
even where those injuries depend on a chain of reasonable inferences:
Under this standard, we conclude that SUWA has established an imminent
injury. Kane County and the State of Utah seek to double the width of Swallow
Park and North Swag roads, which are both dirt roads, and to more than double the
width of Skutumpah Road. Wider roads will likely require realignments or
improvements, such as grading or paving. See generally, [Sierra Club v. Hodel,
848 F.2d 1068, 1084-86 (10th Cir. 1988)]; [Kane Cnty. v. United States, No. 2:08CV-00315, 2013 WL 1180764 (D. Utah Mar. 20, 2013)(Waddoups, J.)]. Such
widening and improvement of the roads in a scenic area would almost inevitably
increase traffic, diminishing the enjoyment of the nearby natural wilderness. See
Hodel, 848 F.2d at 1092 (noting that a project involving “realignments,
widening, . . . [and] a significant improvement in the quality of the road surface”
would accommodate “large increases in future traffic” on the road); [S. Utah
Wilderness All. v. Bureau of Land Mgmt.], 425 F.3d 735, 748 (10th Cir.
2005)](noting that improvements may “change the character of the roadway”).
Kane Cnty. v. United States, 928 F.3d at 888. Similarly, the Cattle Growers, Spur Lake, and
Shirley describe circumstances from which the Court concludes there is a substantial risk that their
branded cows will be killed during the Aerial Shooting. Shirley, who is a Cattle Growers member,
alleges that his cattle have wandered into the project area and that, during the winter months, his
cattle grow thick coats that cover their brands. See Shirley Decl. ¶ 10, at 3. Shirley and Patterson
also observe that the project area spans over 100,000 acres and that it would be “nearly impossible”
to discover their killed cattle before they rot in the wilderness. Shirley Decl. ¶ 12, at 3-4.; Patterson
Decl. ¶ 9, at 3. Although, the Forest Service says it will record location coordinates for each
carcass “to allow for follow-up inspection if needed,” the Forest Service does not say it will
provide those location coordinates to the public or follow up on each carcass to make sure it is
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unbranded. Decision Memo. at 7 (AR 005906). Accordingly, the Cattle Growers, Spur Lake, and
Shirley’s fear that the Animal Inspection Service will kill their cattle, and that the Cattle Growers,
Spur Lake and Shirley will be unable to discover any accidentally killed cows -- so that they may
request compensation from the Forest Service, see Decision Memo at 7 (AR 005905) -- have
support. The Respondents’ citation to Clapper v. Amnesty International USA does not persuade
the Court otherwise. See Respondents’ Merits Response at 11-12. In Clapper v. Amnesty
International USA, the Supreme Court concludes that the plaintiffs challenging a provision of the
Foreign Intelligence Surveillance Act, 50 U.S.C. §§ 1801-1885c (“FISA”), that allows
surveillance of foreign citizens, do not have standing, because their injuries are too speculative.
See 568 U.S. at 410-14. The Supreme Court provides five reasons: (i) the challenged provision
cannot be used to surveil the plaintiffs, who are United States persons; (ii) even if the United States
surveils the plaintiffs’ foreign contacts, rather than the plaintiffs themselves, the plaintiffs only can
speculate whether the United States will use the challenged provision, instead of some other law,
to surveil; (iii) even if the United States uses the challenged provision to target the plaintiffs’
foreign contacts, the plaintiffs only can speculate whether the FISA Court would authorize the
requested surveillance; (iv) even if the FISA Court approves surveillance of the plaintiffs’ foreign
contacts, the plaintiffs only can speculate that the United States will acquire any of those contacts’
communications successfully; and (v) even if the United States were to acquire the plaintiffs’
foreign contacts’ communications successfully, the plaintiffs only can speculate whether the
United States will acquire the plaintiffs’ communications with those foreign contacts. See Clapper
v. Amnesty Int’l USA, 568 U.S. at 411-14. “In sum, respondents’ speculative chain of possibilities
does not establish that injury based on potential future surveillance is certainly impending or is
fairly traceable to” the challenged provision. Clapper v. Amnesty Int’l USA, 568 U.S. at 414. The
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Cattle Growers, Spur Lake, and Shirley’s reasonable fear that the Animal Inspection Service - while shooting shaggy cows in the middle of winter from a moving helicopter -- may kill their
cattle accidentally is more compelling than the “speculative chain of possibilities” that the
Supreme Court rejects in Clapper v. Amnesty International USA. 568 U.S. at 414. Accordingly,
the Cattle Growers, Spur Lake, and Shirley allege cognizable injuries under the first standing
theory.
Regarding the second standing theory -- i.e., that the Cattle Growers, Spur Lake, and
Shirley are deprived of the opportunity to exploit the Gila Cows for their own economic benefit - the Court concludes that the Cattle Growers, Spur Lake and Shirley allege cognizable economic
injuries, because each Petitioner alleges, at least, that they intend to gather and purchase the Gila
Cows. See Patterson Decl. ¶ 13, at 4-5 (alleging that some Cattle Growers members have gathered
Gila Cows successfully and subsequently purchased them from the Livestock Board); Shirley
Decl. ¶ 16, at 5 (alleging that, although his initial efforts have been unsuccessful, he “intend[s] to
continue to attempt to gather and purchased unbranded cattle in accordance with” the Livestock
Board directive) “A plaintiff is required only to allege concrete plans; [Lujan v. Defenders of
Wildlife, 504 U.S. at 564], he is not required to successfully execute those plans.” Roe No. 2 v.
Ogden, 253 F.3d 1225, 1229 (10th Cir. 2001). See Rocky Mountain Gun Owners v. Polis, 121
F.4th at 109 (concluding that a plaintiff’s “stated intention [to purchase a gun before he turns
twenty-one] is sufficient to establish a concrete and particularized future injury” in his challenge
to Colorado’s law raising the minimum age to purchase firearms). In Roe No. 2 v. Ogden, the
Tenth Circuit concludes that a plaintiff challenging bar admission questions regarding drug and
alcohol dependency faces imminent injury, because he plans to sit for the bar examination,
invested three years in completing law school, and will likely pass it. See 253 F.3d at 1229-30.
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The Tenth Circuit reasons that the bar applicant’s injury is “more compelling” than a similarly
predicted, yet uncertain, injury that the Supreme Court held to be sufficient for standing purposes
in Bryant v. Yellen, 447 U.S. 352 (1980)(White, J.). Roe No. 2 v. Ogden, 253 F.3d at 1229. In
Bryant v. Yellen, rural community residents seek to intervene and appeal a district court’s decision
holding that privately owned farmlands were not subject to a federal law that, if applied, would
lower the price of the lands. See 447 U.S. at 367-68. The residents “could not with certainty
establish that they would be able to purchase” the farmlands, because it is uncertain whether the
owners would sell, whether the residents have enough money to buy the lands, or whether the
residents would be outbid by other potential purchasers. 447 U.S. at 367. See 447 U.S. at 367
n.17. The Supreme Court holds, however, that the residents have standing, because it is “likely”
that the lands “would become available at less than market prices” if the federal law applies. 447
U.S. at 368. Similarly, the Cattle Growers, Spur Lake, and Shirley assert that they intend to gather
and purchase the Gila Cows, even though it is possible that other purchasers might outbid them at
auction or that the sale price would be prohibitively expensive. See Patterson Decl. ¶ 13, at 4-5;
Shirley Decl. ¶ 16, at 5. Moreover, like the Roe No. 2 v. Ogden plaintiff and the Bryant v. Yellen
residents, it is likely that the Cattle Growers, Spur Lake, and Shirley would execute this plan
successfully on at least some occasions, given that the Cattle Growers’ president attests that some
of his organization’s members successfully gathered and purchased Gila Cows. See Patterson
Decl. ¶ 13, at 4-5.
The Respondents’ Baca v. King citation does not persuade the Court otherwise.
See
February 1, 2024, Tr. at 9:9-11:18 (Hamilton). In Baca v. King, the issue is not whether a
plaintiff’s allegation that a lost business opportunity is a cognizable injury, but whether the court
can redress that injury. See 92 F.2d at 1036-37. In Baca v. King, Baca, a cattle rancher, challenges
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the BLM’s sale of federal land for which he holds a grazing permit. See 92 F.2d at 1034. Baca
alleges that, if the BLM sells the land, he will lose his grazing rights and thus suffer economic loss.
See 92 F.2d at 1036. The Tenth Circuit observes that “only the renewal of Mr. Baca’s grazing
permit or the sale of the land to him would likely redress his claimed injuries.” 92 F.2d at 1037.
On this point, the Tenth Circuit holds that: (i) the court cannot compel the BLM to grant Baca
another grazing lease, because the relevant statute gives the Interior Secretary discretion over
renewing grazing permits and designating public lands for grazing; and (ii) the court cannot
compel the BLM to sell the land to Baca, because neither his permit nor the relevant statute grants
Baca a first right of purchase. See 92 F.2d at 1037. Accordingly, the Tenth Circuit concludes that
Baca does not have standing, because the Court does not have the power to grant the relief that
would redress his injuries. See 92 F.2d at 1037. The Cattle Growers, Spur Lake, and Shirley’s
economic injuries do not have similar redressability issues. The Respondents’ assertion that “there
is no statutory or regulatory authority that would grant the Court jurisdiction to compel [] the Forest
Service to provide an opportunity for petitioners or members of the public to purchase cattle” is
incorrect. February 1, 2024, Tr. at 10:14-18 (Hamilton). The Court may declare the Aerial
Shooting unlawful and order the Respondents to comply with 36 C.F.R. § 262.10 if they want to
remove the Gila Cows, which would, according to the Petitioners’ interpretation, require the Forest
Service to impound the Gila Cows, look for any possible owners, and put the Gila Cows up for
sale. See 5 U.S.C. § 706; 36 C.F.R. § 262.10. If the Forest Service followed those procedures,
which, as both parties agree, necessitate a long, arduous process of herding wild animals out of the
Gila Wilderness, the Cattle Growers, Spur Lake, and Shirley would have the opportunity
simultaneously to gather the Gila Cows themselves and purchase them from the Livestock Board.
Accordingly, the Court concludes that it could redress the Cattle Growers, Spur Lake, and
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Shirley’s economic injuries if their statutory and regulatory interpretations are correct, and, thus,
those three Petitioners have alleged concrete, redressable injuries under the second standing
theory.
Both standing theories also establish organizational standing for the Cattle Growers to
bring the Statutory Authority Claim and the Impoundment Regulation Claim. The alleged injuries
-- substantial risk that the Animal Inspection Service will kill its members’ cattle and lost
opportunity to take advantage of the Livestock Board initiative -- are germane to the Cattle
Growers’ organizational purpose of protecting its members’ livestock and promoting its members’
ability to gather and purchase livestock. The Cattle Growers’ members would have standing to
bring the Statutory Authority Claim and the Impoundment Regulation Claim in their own right,
see supra, at 188-93 (concluding that the Cattle Growers has standing based on its members’
cognizable injuries), and the lawsuit does not require the participation of either organization’s
members. Accordingly, the Cattle Growers have organizational standing. In sum, the Cattle
Growers, Spur Lake, and Shirley establish traditional Article III standing to bring the Statutory
Authority Claim and the Impoundment Regulation Claim under both standing theories.
Both remaining Petitioners -- Humane Farming and Campbell -- also have traditional
Article III standing to bring the Statutory Authority Claim. Humane Farming owns Suwanna
Ranch, which is “the world’s largest animal refuge.” Miller Decl. ¶ 4, at 1. Humane Farming
alleges that the Forest Service’s decision to kill the Gila Cows instead of impounding them
deprives Humane Farming of the opportunity to purchase the Gila Cows “through public auction
for relocation to a farm animal sanctuary such as Suwanna Ranch.” Petitioners’ Merits Reply at
7. Like the Cattle Growers’ second standing theory injury -- i.e., that Aerial Shooting deprives the
Cattle Growers’ members of the opportunity to gather and purchase the Gila Cows -- Humane
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Farming’s lost opportunity to rescue the Gila Cows is a concrete injury, regardless whether they
would have rescued the Gila Cows successfully. See Miller Decl. ¶ 7, 12; Roe No. 2 v. Ogden,
253 F.3d at 1229-30; Bryant v. Yellen, 447 U.S. at 366-68. The Court can redress this injury by
ordering the Forest Service to impound the Gila Cows instead of killing them, which would give
Humane Farming the opportunity to purchase the Gila Cows for refuge. This standing theory
alleges, moreover, that Humane Farming suffers “an injury in its own right,” which satisfies
organizational standing requirements. Students for Fair Admissions, Inc. v. President & Fellows
of Harvard Coll., 600 U.S.at 199. Accordingly, Humane Farming establishes traditional Article
III standing to bring the Statutory Authority Claim and the Impoundment Regulation Claim.
Campbell also alleges a cognizable injury, insofar as he alleges that the Forest Service’s decision
to shoot the Gila Cows instead of impounding them produces rotting carcasses in the Gila
Wilderness that scares away his customers. See Campbell Decl. ¶¶ 6-12, at 1-3. The Court can
redress this injury by ordering the Forest Service to impound the Gila Cows instead of killing them,
which would prevent large numbers of rotting carcasses from inhibiting the wilderness experience
of Campbell’s customers. Accordingly, Campbell has established traditional Article III standing
to bring the Statutory Authority Claim and the Impoundment Regulation Claim.
2.
All Petitioners Allege Injuries That Satisfy the Zone-of-Interests Test
for the Statutory Authority Claim and the Impoundment Regulation
Claim.
All Petitioners allege injuries based on the Forest Service’s decision to shoot the Gila Cows
instead of impounding them; these injuries fall within the relevant statutory provision’s zone of
interests. To establish APA standing, a plaintiff must: (i) identify a specific agency action that
affects him; and (ii) show that his injury “falls within the ‘zone of interests’ sought to be protected
by the statutory provision whose violation forms the legal basis for his complaint.” Lujan v. Nat’l
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Wildlife Fed’n, 497 U.S. at 882-883 (internal quotations have no citation). By challenging the
Aerial Shooting’s lawfulness, the Petitioners satisfy the first prong of APA standing. The Court
thus focuses its analysis on whether the Petitioners’ satisfy the zone-of-interests test. The zoneof-interests test for APA claims is a low bar:
We have said, in the APA context, that the test is not “‘especially
demanding,’” Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v.
Patchak, 567 U.S. [209, 225] . . . (2012). In that context we have often
“conspicuously included the word ‘arguably‘ in the test to indicate that the benefit
of any doubt goes to the plaintiff,” and have said that the test “forecloses suit only
when a plaintiff’s ‘interests are so marginally related to or inconsistent with the
purposes implicit in the statute that it cannot reasonably be assumed that’” Congress
authorized that plaintiff to sue. Id., at [225]. That lenient approach is an appropriate
means of preserving the flexibility of the APA’s omnibus judicial-review provision,
which permits suit for violations of numerous statutes of varying character that do
not themselves include causes of action for judicial review.
Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. at 130-31. Although the briefing
focuses on the Impoundment Regulation Claim rather than on the Statutory Authority Claim, see
Petitioners’ Merits Brief at 8-25; Petitioners’ Merits Reply at 11-24, the Complaint identifies one
statutory provision and one regulation that relate to how the Aerial Shooting allegedly exceeds the
Respondents’ statutory authority: (i) 16 U.S.C. § 1133(c); and (ii) 36 C.F.R. § 262.10.
See
Complaint ¶¶ 86-87, at 22. 16 U.S.C. § 1133(c) is part of the Wilderness Act. The Wilderness
Act’s policy declaration provides:
In order to assure that an increasing population, accompanied by expanding
settlement and growing mechanization, does not occupy and modify all areas within
the United States and its possessions, leaving no lands designated for preservation
and protection in their natural condition, it is hereby declared to be the policy of
the Congress to secure for the American people of present and future generations
the benefits of an enduring resource of wilderness.
16 U.S.C. § 1131(a). To the extent that the Statutory Authority Claim alleges that the Aerial
Shooting exceeds the Respondents’ statutory authority under the Wilderness Act, the Petitioners’
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interests fall squarely within that statute’s purposes. The Cattle Growers, Spur Lake, and Shirley’s
allege that the Aerial Shooting deprives them of “the benefits of an enduring resource of
wilderness,” because it threatens their cattle or stops them from gathering and purchasing the Gila
Cows. 16 U.S.C. § 1131(a). See Patterson Decl. ¶¶ 6-14, at 2-5; Shirley Decl. ¶¶ 8-17, at 2-5.
Humane Farming similarly alleges that the Aerial Shooting deprives it of the benefit of rescuing
wild animals, and Campbell alleges that the Aerial Shooting inhibits his ability to run his
campground for campers and hikers seeking to enjoy the Gila Wilderness. See Miller Decl. ¶¶ 7,
12; Campbell Decl. ¶¶ 6-12, at 1-3. These injuries fall within the Wilderness Act’s zone-ofinterests, which includes managing wilderness access to promote many public benefits. See
16 U.S.C. § 1131(a)(“[I]t is hereby declared to be the policy of the Congress to secure for the
American people of present and future generations the benefits of an enduring resource
of wilderness.”); 16 U.S.C. § 1133(d)(4)(“[T]he grazing of livestock, where established prior
to September 3, 1964, shall be permitted to continue subject to such reasonable regulations as are
deemed necessary by the Secretary of Agriculture.”); 16 U.S.C. § 1133(d)(5)(“Commercial
services may be performed within the wilderness areas designated by this chapter to the extent
necessary for activities which are proper for realizing the recreational or other wilderness purposes
of the areas.”).
To the extent that the Statutory Authority Claim alleges that the Aerial Shooting exceeds
the Respondents’ statutory authority under the Forest Service Organic Act, the Petitioners’
interests also fall within the Forest Service Organic Act’s purposes, 16 U.S.C. §§ 471-583, under
which 36 C.F.R. § 262.10 is promulgated. See Respondents’ Merits Response. The Forest Service
Organic Act is designed to manage how the public occupies and uses public and national forests.
See 16 U.S.C. § 551. The Forest Service Organic Act provides that the Agriculture Secretary
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“shall make provisions for the protection against destruction by fire and depredations upon the
public forests and national forests,” and that “he may make such rules and regulations and establish
such service as will insure the objects of such reservations, namely, to regulate their occupancy
and use and to preserve the forests thereon from destruction.” 16 U.S.C. § 551. The Petitioners’
Statutory Authority Claim injuries relate to how the Aerial Shooting impacts their ability to occupy
and use the Gila National Forest and Gila Wilderness. Accordingly, the Court concludes that the
Petitioners’ Statutory Authority Claim injuries fall within the Forest Service Organic Act’s zoneof-interests.
The Petitioners’ injuries also fall within the zone-of-interests of the regulation that the
Impoundment Regulation Claim alleges the Respondents violated -- 36 C.F.R. § 262.10. See
Complaint ¶¶ 93-94, at 23-24. 36 C.F.R. § 262.10 regulates how the Forest Service may remove
unauthorized livestock from the National Forest System. See 36 C.F.R. § 262.10. The Cattle
Growers, Spur Lake, and Shirley’s interests in protecting their cattle, and in gathering and
purchasing the Gila Cows, are within the scope of this regulation’s purposes. Humane Farming’s
and Campbell’s interests are also at least arguably within this regulation’s purposes, because the
regulation balances the Forest Service’s ability to manage animals on public land with the property
interests of those who use that land. How the Forest Service removes unauthorized livestock
impacts: (i) Humane Farming’s ability to rescue those animals; and (ii) Campbell’s ability to
provide a positive recreational experience for his campground customers. Accordingly, the Court
concludes that the Petitioners’ Impoundment Regulation Claim injuries fall within
36 C.F.R. § 262.10’s zone of interests. In sum, the Court concludes that all Petitioners have
standing to bring the Statutory Authority Claim and the Impoundment Regulation Claim, because
all of the Petitioners establish Article III standing for those claims, and the Petitioners’ cognizable
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injuries are within the Wilderness Act’s, Forest Service Organic Act’s, or 36 C.F.R. § 262.10’s
zone-of-interests.
D.
THE PETITIONERS’ CLAIMS ARE NOT MOOT.
The Court concludes that this case is not moot, because, even though some of the
Petitioners’ injuries are no longer cognizable, the Aerial Shooting is capable of repetition, yet
evading review. At first glance, because some “‘issues presented are no longer ‘live,’” the case
appears to be moot. County of Los Angeles v. Davis, 440 U.S. at 631 (quoting Powell v.
McCormack, 395 U.S. at 496)(internal quotations have no citation). For example, the Cattle
Growers, Spur Lake, and Shirley’s injuries stemming from the possibility that the Respondents
may kill their cattle accidentally is no longer cognizable, because the Respondents do not have
concrete plans to conduct similar aerial operations this year. This case falls, however, within the
“established exception to mootness for disputes capable of repetition, yet evading review.” FEC
v. Wis. Right To Life, Inc., 551 U.S. 449, 462 (2007). This exception “applies where ‘(1) the
challenged action is in its duration too short to be fully litigated prior to cessation or expiration,
and (2) there is a reasonable expectation that the same complaining party will be subject to the
same action again.’” FEC v. Wis. Right To Life, Inc., 551 U.S. at 462 (2007)(quoting Spencer v.
Kemna, 523 U.S. 1, 17 (1998)). The Petitioners satisfy both prongs of this exception.
Regarding the first prong, the Court concludes that the Aerial Shooting is too short to be
fully litigated prior to cessation. The Petitioners cannot challenge the Aerial Shooting -- or any
similar operation -- under the APA until the Forest Service makes a “final agency action.”
5 U.S.C. § 704. To be “final,” an agency action: (i) “must mark the ‘consummation’ of the
agency’s decisionmaking process”; and (ii) “must be one by which ‘rights or obligations have been
determined,’ or from which ‘legal consequences will flow.’” Bennett v. Spear, 520 U.S. 154, 178
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(1997)(first quoting Chicago & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113
(1948); and then quoting Port of Boston Marine Terminal Assn. v. Rederiaktiebolaget
Transatlantic, 400 U.S. 62, 71 (1970)). The final agency action related to the Aerial Shooting is
the Decision Memo., which was released on February 16, 2023 -- less than two weeks before the
Aerial Shooting. See Decision Memo. at 16 (AR 005914); Second Howes Decl. ¶ 3, at 2.
Accordingly, the Petitioners could not have filed their APA claim more than two weeks before the
Aerial Shooting. Two weeks is not enough time to adjudicate the Petitioners’ claims. See
Kingdomware Techs., Inc. v. United States, 579 U.S. 162, 170 (2016)(“We have previously held
that a period of two years is too short to complete judicial review of the lawfulness of the
procurement.”). Accordingly, the Petitioners’ claims satisfy first the first prong of the “capable of
repetition, yet evading review” mootness exception. FEC v. Wisconsin Right To Life, Inc., 551
U.S. at 462.
Regarding the second prong, the Court concludes that “there is a reasonable expectation”
that the Forest Service will conduct similar aerial removal operations again. FEC v. Wisconsin
Right To Life, Inc., 551 U.S. at 462. The parties agree that some Gila Cows remain in the Gila
Wilderness, even after the Aerial Shooting. See February 1, 2024, Tr. at 102:13-24 (McGuire);
id. at 119:3-4 (Smith). In February, 2024, the Forest Service estimated that between ten and twenty
Gila Cows remain. See February, 1, 2024, Tr. at 119:3-4 (Smith). Although the Forest Service
intends to conduct ground removals for the remaining Gila Cows, the Forest Service also
acknowledges that it may authorize more aerial operations if ground removal is not feasible. See
February 1, 2024, Tr. at 122:9-17 (Smith). The Respondents also admit that, because there may
be more aerial operations, this case is not moot. See February 1, 2024, Tr. at 122:9-11 (Smith).
The Court agrees with the Respondents: because the Forest Service may authorize similar aerial
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operations, the Respondents’ allegedly unlawful activity is capable of repetition, yet evading
review. See ETP Rio Rancho Park, LLC v. Grisham, 564 F. Supp. 3d at 1069 (concluding that a
trampoline facility operators’ claims related to COVID-19 public health orders that are no longer
in effect are not moot, because the COVID-19 pandemic “remains ongoing and the State continues
to issue” public health orders, which “could create new restrictions that again bring the questioned
restrictions back into place”). Cf. Audubon of Kan., Inc. v. U.S. Dep’t of Interior, 67 F.4th 1093,
1104 (10th Cir. 2023)(concluding that the “capable of repetition but evading review” mootness
exception does not apply, where the Fish and Wildlife Service represents that it would not repeat
the challenged action). Accordingly, the Court concludes that the Petitioners’ claims are not moot.
III.
THE RESPONDENTS DO NOT VIOLATE THE JUNE, 2022, STIPULATION.
The Court concludes that the Respondents do not violate the June, 2022, Stipulation,
because the Respondents notified the Cattle Growers, Spur Lake, and Shirley about the Aerial
Shooting no later than November 22, 2022, which is more than seventy-five days before the Aerial
Shooting began. The June, 2022, Stipulation states: “[A]ny such aerial lethal removal operations
on or before March 1, 2025 would be preceded by at least 75 days’ notice to the Petitioners and
also to the public.” June, 2022, Stipulation at 1. The June, 2022, Stipulation does not provide any
more detail regarding this notification obligation. See June, 2022, Stipulation at 1. For example,
the June, 2022, Stipulation does not require the Forest Service to notify the Cattle Growers, Spur
Lake, and Shirley in writing, or to publish a decision memorandum regarding aerial removal
operations at least seventy-five days before conducting those operations.
See June, 2022,
Stipulation at 1. On November 17, 2022, the Respondents notify the public about their intention
to conduct aerial removal operations. See Scoping Letter at 1 (AR 004288)(“This scoping notice
and proposal is intended to cover any ongoing live gather and removal efforts, as well as any lethal
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removal efforts through either aerial shooting from a helicopter or shooting on the ground.”). On
November 22, 2022, the Respondents notify the Cattle Growers, Spur Lake, and Shirley, through
counsel, about their intention to conduct aerial removal operations. See Petitioners Notification
Letter at 1 (AR 004350)(attaching the Scoping Letter). The Notification Letter also references the
June, 2022, Stipulation:
On June 30, 2022, the U.S. District Court for the District of New Mexico
approved the stipulation for dismissal for case no. 2:22-cv-00086-JB-CG, New
Mexico Cattle Growers’ Association, et al. v. the United States Department of
Agriculture, et al. The stipulation for dismissal included the acknowledgment that
in future proposals by USDA involving the lethal removal of unbranded and
unauthorized cattle from the Gila Wilderness that “any such removal operations on
or before March 1, 2025 would be preceded by at least 75 days’ notice to the
Petitioners and also to the public.”
....
Plaintiffs in the above referenced lawsuit are being sent the scoping notice along
with nearby permittees, neighbors, other stakeholders, and members of the general
public that have expressed interest in receiving such notices. However, to be sure
that you and your clients receive the notice as outlined in the stipulation for
dismissal, we include it here and request that you forward it if needed to anyone
that did not receive it for some reason through the scoping notice process.
Petitioners Notification Letter at 1 (AR 004350). The Court concludes that these two letters serve
as sufficient notice to the Cattle Growers, Spur Lake, and Shirley, and, thus, the Respondents do
not violate the June, 2022, Stipulation.
IV.
THE RESPONDENTS DO NOT VIOLATE THE NEPA.
The NEPA Petitioners argue that the Respondents violate the NEPA, because the
Respondents did not prepare an EA or an EIS for the Aerial Shooting and the Aerial Shooting is
not excluded categorically under either the Forest Service’s or the Animal Inspection Service’s
NEPA implementing procedures. See Petitioners’ Merits Brief at 25-41. The Court concludes
that the Respondents do not violate the NEPA, because the Aerial Shooting is excluded
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categorically from further documentation in an EA or an EIS. Both the Forest Service and the
Animal Inspection Service have NEPA-implementing procedures that govern whether the agency
must prepare an EA or an EIS before conducting a proposed action. See 36 C.F.R. § 220.6
(describing Forest Service NEPA-implementing procedures); 7 C.F.R. § 372 (describing Animal
Inspection Service NEPA-implementing procedures). Both implementing procedures allow the
agency the exclude categorically an action from further documentation in an EA or an EIS if: (i)
the action falls within one of the agency’s CEs; and (ii) there are no extraordinary circumstances.
See 36 C.F.R. § 220.6; 7 C.F.R. § 372. The Court first evaluates whether the Forest Service’s use
of either of its chosen CE’s is arbitrary or capricious. Second, the Court evaluates whether the
Animal Inspection Service’s use of its chosen CE is arbitrary or capricious. Third, the Court
evaluates whether either agency’s determination that there are no extraordinary circumstances is
arbitrary or capricious.
A.
THE FOREST SERVICE’S APPLICATION OF 36 C.F.R. § 220.6(E)(6) TO
THE AERIAL SHOOTING IS NOT ARBITRARY OR CAPRICIOUS.
The Forest Service’s NEPA implementing procedures provide:
(a)
General. A proposed action may be categorically excluded from further
analysis and documentation in an EIS or EA only if there are no
extraordinary circumstances related to the proposed action and if:
(1)
The proposed action is within one of the categories
established by the Secretary at 7 CFR part 1b.3; or
(2)
The proposed action is within a category listed in § 220.6(d)
and (e).
36 C.F.R. § 220.6(a).
Accordingly, if the Respondents satisfy 36 C.F.R. § 220.6(a)’s
conditions -- i.e., if the Aerial Shooting is “within a category listed in § 220.6(d) and (e),” or
“within one of the categories established by the Secretary at 7 CFR part 1b.3,” and “there are no
extraordinary circumstances related to the proposed action” -- the Respondents do not need to
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prepare an EA or an EIS under the NEPA. 36 C.F.R. § 220.6(a). The Respondents argue that the
Aerial Shooting falls within two Forest Service CEs: 7 C.F.R. § 1b.3(a)(5) (“CE 5”) and
36 C.F.R. § 220.6(e)(6) (“CE 6”). 76
First, the Court concludes that the Aerial Shooting does not fall within CE 5, which
excludes from further NEPA review “[c]ivil and criminal law enforcement and investigative
activities.” 7 C.F.R. § 1b.3(a)(5). The Court agrees with the Petitioners’ argument that the
Respondents’ position that the Gila Cows are not unauthorized livestock is inconsistent with the
Respondents’ position that the civil and criminal enforcement CE applies. See supra, at 113-14;
Petitioners’ Merits Brief at 37. One of the Respondents’ main arguments is that the Gila Cows are
not unauthorized livestock. See Respondents’ Merits Response at 18-31. If the Respondents are
correct in this regard, then removing the Gila Cows is not a civil or criminal enforcement activity,
because the Gila Cows’ presence in the Gila Wilderness does not constitute a civil or criminal
violation. Later in this memorandum opinion, the Court concludes that the Gila Cows are not
unauthorized livestock. See infra, at 226-37. Accordingly, CE 5 does not apply to the Gila Cows’
removal, and the Forest Service may not rely on it to preclude the Aerial Shooting from further
NEPA review.
Next, having concluded that CE 5 does not apply to the Aerial Shooting, the Court moves
on to evaluating whether CE 6 applies. CE 6 applies to:
The Respondents also mention a third CE -- 36 C.F.R. § 220.6(d)(1) -- but they admit that
the Forest Service does not rely on this CE to preclude the Aerial Shooting from further NEPA
analysis. See Respondents’ Merits Response at 41. Instead, the Forest Service used this CE to
preclude its decision to close the project area during the Aerial Shooting from further NEPA
analysis. See Respondents’ Merits Response at 41. Because the NEPA Petitioners challenge only
the Aerial Shooting, and not the area closure order, the Court does not evaluate whether
36 C.F.R. § 220.6(d)(1) applies to the area closure order.
76
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(6)
Timber stand and/or wildlife habitat improvement activities that do not
include the use of herbicides or do not require more than 1 mile of low
standard road construction. Examples include, but are not limited to:
(i)
Girdling trees to create snags;
(ii)
Thinning or brush control to improve growth or to reduce
fire hazard including the opening of an existing road to a
dense timber stand;
(iii)
Prescribed burning to control understory hardwoods in
stands of southern pine; and
(iv)
Prescribed burning to reduce natural fuel build-up and
improve plant vigor.
The Court concludes that the Aerial Shooting falls within CE 6, and thus the Forest Service’s
application of CE 6 to the Aerial Shooting is not arbitrary or capricious, because the Aerial
Shooting is a wildlife improvement activity that does not use herbicides or involve road-building.
The Court considers the parties’ competing interpretations of CE 6 and concludes that CE 6 is
unambiguous 77 and applies to the Aerial Shooting. To determine whether this regulation is
The Court’s conclusion that CE 6 is not ambiguous on this question precludes Auer or
Seminole Rock deference to the agency’s interpretation of the regulation. Although neither party
in this case discusses whether the Court should apply deference to the Respondents’ interpretation
of CE 6’s scope, the Court concludes that the regulation is not “genuinely ambiguous” whether the
Forest Service may conduct targeted shootings to, and thus the regulation “just means what it
means -- and the court must give it effect, as the court would any law.” Kisor v. Wilkie, 588 U.S.
558, 575 (2019). See id. (noting that “the core theory of Auer deference is that sometimes the law
runs out, and policy-laden choice is what is left over,” but “if the law gives an answer -- if there is
only one reasonable construction of a regulation -- then a court has no business deferring to any
other reading, no matter how much the agency insists it would make more sense”). This
conclusion, however, is of limited consequence here, because the Court reaches the same
conclusion on the meaning of the regulation that the Respondents hold. See Respondents’ Merits
Response at 37-39. Moreover, the Court is wary of the staying power of Auer deference following
Loper Bright, in which the Supreme Court “places a tombstone on Chevron no one can miss.”
Loper Bright, 603 U.S. at 417 (Gorsuch, J., concurring). Although the Supreme Court did not
overrule or alter Auer deference in Loper Bright, and the Supreme Court declined to overrule Auer
just five years ago, see Kisor v. Wilkie, 588 U.S. at 563, the basic principles that purport to underlie
Auer and -- formerly -- Chevron deference are conceptually similar in that both involve
administrative law’s judicial deference to agency interpretations of law and agency regulations,
77
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ambiguous, the Court looks to “the traditional tools of construction, such as the regulatory ‘text,
structure, history, and purpose.’” Sierra Club v. U.S. Env’t Prot. Agency, 964 F.3d 882, 891 (10th
Cir. 2020)(quoting Kisor v. Wilkie, 588 U.S. 558, 559 (2019)(Kagan, J.)).
Regarding the text, CE 6’s plain text does not preclude its application to a targeted animalremoval operation. 36 C.F.R. § 220.6(e)(6). There are only two timber stand or wildlife habitat
improvement activities that CE 6 does not apply to: those that use herbicides and those that require
over one mile of road construction.
See 36 C.F.R. § 220.6(e)(6).
Accordingly, the Court
concludes that CE 6 is not ambiguous, because it means “just means what it means,” Kisor v.
Wilkie, 588 U.S. at 575, and applies to agency actions that are designed to improve wildlife
habitats if those activities do not use herbicides or require over one mile of road construction. The
Administrative Records are replete with evidence that the Forest Service designed the Aerial
Shooting to improve wildlife habitats by removing the Gila Cows, whose overgrazing and stream
trampling damages delicate riparian systems, and threatens several endangered or protected
species. See supra, at 12-76. The Court does not need to determine whether the Aerial Shooting
will improve wildlife habitats -- although the Court notes that the Forest Service’s materials are
persuasive on this point -- to conclude that the Forest Service’s decision to apply CE 6 to the Aerial
Shooting is reasonable. See WildEarth Guardians v. U.S. Forest Serv., 668 F. Supp. at 1329 (“It
is not the Court’s place to pass judgment on the wisdom or merits of these reports . . . but rather to
determine whether the reports evidence consideration of relevant factors and articulate reasoned
and thus both are susceptible to constitutional criticisms. In any event, the Court has made no
secret of its skepticism of Auer deference in the past, see Mohon v. Agentra LLC, 400 F. Supp. 3d
1189, 1218-24 (D.N.M. 2019)(Browning, J.), and would welcome a standard more in line with
basic separation-of-powers principles.
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bases for [the Forest Service’s] conclusions [that a categorical exclusion applies to a proposed
action.]”)(first citing Colo. Env’t Coal. v. Dombeck, 185 F.3d at 1172; and then citing Olenhouse,
42 F.3d at 1580). The Miscellaneous Biological Assessment, Mexican Gray Wolf Biological
Assessment, and Water Specialist Report illustrate how the Forest Service considered carefully
“relevant factors and articulated reasoned bases” for concluding that the Aerial Shooting will
improve wildlife habitats in the Gila Wilderness. WildEarth Guardians v. U.S. Forest Serv., 668
F. Supp. at 1329. See supra, at 35-76. Accordingly, the Court concludes that the Forest Service’s
application of CE 6 to the Aerial Shooting is neither arbitrary nor capricious.
The Court also does not find sound the NEPA Petitioners’ argument that the Aerial
Shooting fails to fit into CE 6, because it is not an “established vegetation treatment or forestry
practice,” like the four examples that CE 6 provides. Petitioners’ Merits Brief. Those examples
are neither exclusive nor fully illustrative. See 36 C.F.R. § 220.6(e)(6)(“Examples include, but
are not limited to”). Importantly, those examples do not limit the plain meaning of CE 6’s text,
which describes “wildlife improvement activities” that do not involve using herbicides or building
roads longer than one mile. 36 C.F.R. § 220.6(e)(6). The Forest Service designs the Aerial
Shooting to improve wildlife habitats in the Gila Wilderness, and the Aerial Shooting does not
involve using herbicides or buildings roads. Accordingly, the Court concludes that CE 6 applies
to the Aerial Shooting, and the Forest Service’s application of CE 6 to the Aerial Shooting is
neither arbitrary or capricious.
B.
THE ANIMAL INSPECTION SERVICE’S APPLICATION OF
7 C.F.R. § 372.5(C)(1)(I) TO THE AERIAL SHOOTING IS NOT
ARBITRARY OR CAPRICIOUS.
Like the Forest Service, the Animal Inspection Service may exclude categorically an action
from further NEPA review the action falls within one of the agency’s CEs and there are no
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extraordinary circumstances. See 40 C.F.R. § 1501.4(b).
Regarding the Animal Inspection
Service’s NEPA compliance, the Respondents argue that the Aerial Shooting falls within
7 C.F.R. § 732.5(c)(1)(i) (“Routine Measures CE”). See Respondents’ Merits Response at 39-41.
The Court concludes that the Animal Inspection Service’s application of the Routine
Measures CE is not arbitrary or capricious, because the Aerial Shooting satisfies each of the
Routine Measures CE’s requirements. The Routine Measures CE excludes from further NEPA
review:
Routine measures, such as identifications, inspections, surveys, sampling that does
not cause physical alteration of the environment, testing, seizures, quarantines,
removals, sanitizing, inoculations, control, and monitoring employed by agency
programs to pursue their missions and functions. Such measures may include the
use -- according to any label instructions or other lawful requirements and
consistent with standard, published program practices and precautions -- of
chemicals, pesticides, or other potentially hazardous or harmful substances,
materials, and target-specific devices or remedies, provided that such use meets all
of the following criteria (insofar as they may pertain to a particular action):
(A)
The use is localized or contained in areas where humans are not likely to be
exposed, and is limited in terms of quantity, i.e., individualized dosages and
remedies;
(B)
The use will not cause contaminants to enter water bodies, including
wetlands;
(C)
The use does not adversely affect any federally protected species or critical
habitat; and
(D)
The use does not cause bioaccumulation.[78]
7 C.F.R. § 372.5(c)(1)(i). The Routine Measures CE’s plain text applies to the Aerial Shooting.
The Administrative Records establish that the Animal Inspection Service routinely conducts aerial
“Bioaccumulation is the uptake of substances and contaminants from the environment
into the tissues” of an organism. Sara M. Crayton, Petra B. Wood, Donald J. Brown, Alice R.
Millikin, Terence J. McManus, Tyler J. Simpson, Kang-Mo Ku, & Yong-Lake Park,
Bioaccumulation of the Pesticide Imidacloprid in Stream Organism and Sublethal Effects on
Salamanders, Global Ecology and Conservation at 2, Volume 24 (2020).
78
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shootings to remove wild animals. See Animal Inspection Service CE Record at 1 (AR 005893);
Wildlife Aerial Shooting Assessment at 1 (AR 003286)(indicating that, between FY11 and FY15,
the Animal Inspection Service killed over 41,000 animals via aerial shootings). The Court
disagrees with the Petitioners’ argument that the Aerial Shooting is not a routine measure, because
the Animal Inspection Service targeted cows, instead of feral swine or another more commonly
targeted wild animal. See Petitioners’ Merits Reply at 31-32. Nothing in the Routine Measures
CE’s text suggests that it is limited to certain species. See 7 C.F.R. § 372.5(c)(1)(i). Instead, the
Routine
Measures
CE
is
limited
to
certain
actions,
including
“removals.”
7 C.F.R. § 372.5(c)(1)(i). The Aerial Shooting is a removal, and it is routine, insofar as the Animal
Inspection Service commonly removes wild animals by shooting them from aircraft.
The Aerial Shooting also meets all four criteria in the Routine Measures CE. Regarding
the first criterion, the Aerial Shooting “is localized or contained in areas where humans are not
likely to be exposed, and is limited in terms of quantity.” 7 C.F.R. § 372.5(c)(1)(i)(A). See
Decision Memo at 7 (AR 005905)(describing how the project area will be closed to the public
during the Aerial Shooting); id. at 2 (AR 005900)(estimating that the Animal Inspection Service
will target no more than fifty to 150 Gila Cows); Second Howes Decl. § 4, at 2 (indicating that the
Animal Inspection Service killed nineteen Gila Cows during the Aerial Shooting). Regarding the
second criterion, the Animal Inspection Service is not arbitrary or capricious in concluding that
the Aerial Shooting will not “cause contaminants to enter water bodies, including wetlands.”
7 C.F.R. § 372.5(c)(1)(i)(B). The Forest Service designed the Aerial Shooting to protect wetlands,
and, accordingly, Forest Service staff are required to remove any rotting Gila Cow carcasses that
were left in or near waterways. See Decision Memo at 8 (AR 005906); Animal Inspection Service
CE Record at 3 (AR 005895). Moreover, the Respondents establish that the Petitioners’ fears
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about rotting cattle carcasses contaminating wetlands are overblown and that removing the Gila
Cows will benefit, rather than damage, the Gila Wilderness’ riparian systems. See Water Specialist
Report at 7 (AR 005568). Regarding the third criterion -- whether the action will “adversely affect
any federally protected species or critical habitat,” 7 C.F.R. § 372.5(c)(1)(i)(C) -- the Animal
Inspection Service relies on the Forest Service’s extensive research and conclusions regarding the
Aerial Shooting’s ecological impact.
See Animal Inspection Service CE Record at 2-4
(AR 005893-95). Those materials conclude that the Aerial Shooting will have no effect on any
threatened or endangered species or habitat in the Gila Wilderness. See Miscellaneous Biological
Assessment at 4 (AR 005683). “It is not the Court’s place to pass judgment on the wisdom or
merits of these reports . . . but rather to determine whether the reports evidence consideration of
relevant factors and articulate reasoned bases for [the agency’s] conclusions [that a categorical
exclusion applies to a proposed action.]” WildEarth Guardians v. U.S. Forest Serv., 668 F. Supp.
at 1329 (first citing Colo. Env’t Coal. v. Dombeck, 185 F.3d at 1172; and then citing Olenhouse,
42 F.3d at 1580). Accordingly, the Animal Inspection Services’ determination, based on the Forest
Service’s materials, that the Aerial Shooting will not affect adversely any threatened or endangered
species is not arbitrary or capricious. Regarding the fourth criterion, no party alleges or could
allege plausibly that the Aerial Shooting causes bioaccumulation.
Accordingly, the Court
concludes that all four criteria are met, and the Aerial Shooting falls within the Routine Measures
CE.
C.
THE RESPONDENTS’ DETERMINATION THAT THERE ARE NO
EXTRAORDINARY CIRCUMSTANCES RELATED TO THE AERIAL
SHOOTING IS NOT ARBITRARY OR CAPRICIOUS.
The Court concludes that the Respondents’ determination that there are no extraordinary
circumstances related to the Aerial Shooting is not arbitrary or capricious, because the
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Respondents analyzed each requisite resource condition and concluded reasonably that there is no
potential for “a significant effect” on those resource conditions. Utah Env’t Cong. v. Dale
Bosworth, 443 F.3d at 743 (emphasis in original). Even if a CE applies to a proposed agency
action, the agency may not use that CE to preclude the proposed action from further NEPA review
if the agency determines that there are extraordinary circumstances. See 40 C.F.R. § 1501.4(b);
Utah Env’t Cong. v. Dale Bosworth, 443 F.3d at 742 (“[T]he presence of an extraordinary
circumstance precludes the application of a categorical exclusion.”). To determine “whether
extraordinary circumstances related to a proposed action warrant further analysis and
documentation in an EA or an EIS,” an agency “should [] consider[]” seven resource conditions:
(i)
Federally listed threatened or endangered species or designated critical
habitat, species proposed for Federal listing or proposed critical habitat, or
Forest Service sensitive species;
(ii)
Flood plains, wetlands, or municipal watersheds;
(iii)
Congressionally designated areas, such as wilderness, wilderness study
areas, or national recreation areas;
(iv)
Inventoried roadless area or potential wilderness area;
(v)
Research natural areas;
(vi)
American Indians and Alaska Native religious or cultural sites; and
(vii)
Archaeological sites, or historic properties or areas.
36 C.F.R. § 220.6(b)(1).
The mere presence of one or more of these resource conditions does not
preclude use of a categorical exclusion (CE). It is the existence of a cause-effect
relationship between a proposed action and the potential effect on these resource
conditions, and if such a relationship exists, the degree of the potential effect of a
proposed action on these resource conditions that determines whether extraordinary
circumstances exist.
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36 C.F.R. § 220.6(b)(2). “[A]n extraordinary circumstance is found only when there exists a
potential for a significant effect on a resource condition.” Utah Env’t Cong. v. Dale Bosworth,
443 F.3d at 743. An agency does not need to conduct extensive analysis, moreover, when
evaluating resource conditions for extraordinary circumstances:
Reading the regulation to require detailed written analysis from the agency before
rejecting each extraordinary circumstance would seem to defeat the purpose of a
categorical exclusion -- “a streamlined process allowing minor projects to be
quickly implemented” -- and fly in the face of Tenth Circuit precedent that an
environmental effect must be “significant” before an agency wishing to rely on a
categorical exclusion must “engage in further analysis.”
Rocky Mountain Peace & Just. Ctr. v. United States Fish & Wildlife Serv., 548 F. Supp. 3d at
1062, aff’d, 40 F.4th 1133 (10th Cir. 2022)(quoting Utah Env’t Cong. v. Dale Bosworth, 443 F.3d
at 735, 742).
The Court has reviewed and summarized the Forest Service’s detailed evaluation of each
resource condition. See supra, at 37-76. These evaluations demonstrate that the Respondents
consider sufficiently how the Aerial Shooting affects each resource condition and that the
Respondents conclude fairly that the Aerial Shooting will not significantly impact each condition.
Regarding the first resource condition -- threatened or endangered species or habitats -- the Forest
Service compiles sixty-seven pages of biological assessments, which include maps and surveys of
each potentially impacted endangered or threatened species and these species’ critical habitats.
See supra, at 38-61. Incorporating this extensive field work -- which identifies the location of each
species and habitat and how an uptick in dead Gila Cows in the project area may impact that
species and habitat -- the assessments conclude that the Aerial Shooting either will not affect, or
is not likely to jeopardize, each species or critical habitat. See supra, at 38-61. The Tenth Circuit
holds that similar field work supports sufficiently the Forest Service’s determination that there are
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no extraordinary circumstances, where a petitioner alleges that an agency action may significantly
affect threatened or endangered species. See Utah Env’t Cong. v. Dale Bosworth, 443 F.3d. at 744
(concluding that “species monitoring performed by the Forest Service, although not consistently
conducted on an annual basis, was more than ample to determine whether extraordinary
circumstances existed,” where the Forest Service conducted several surveys of the two species that
the petitioners allege the challenged agency action would affect significantly).
The same logic applies to the Forest Service’s determinations regarding the other six
resource conditions.
Regarding the second resource condition -- flood plains, wetlands, or
municipal watersheds -- the Forest Service provides the Water Specialist Report, which, surveying
scientific research and Gila Wilderness field studies, concludes that the water quality benefits of
removing the destructive Gila Cows outweigh any negative effects stemming from a short-lived
uptick in decomposing carcasses. See supra, at 62-67. Regarding the third resource condition - Congressionally designated areas, such as wilderness, wilderness study areas, or national
recreation areas -- the Forest Service provides the Minimum Requirements Analysis, which
evaluates how three different removal techniques likely will impact the Gila Wilderness’ five
wilderness qualities. See supra, at 67-72. Using this analysis, the Forest Service concludes that
the Aerial Shooting is the least intrusive method of removing the Gila Cows. See supra, at 67-72.
Regarding the fourth resource condition -- inventoried roadless area or potential wilderness area - the Forest Service notes correctly that no inventoried roadless areas or potential wilderness areas
are within the project area. See Decision Memo. at 12 (AR 005910).
Regarding the fifth resource condition -- research natural areas -- the Forest Service
concludes that the Aerial Shooting will improve rather than degrade the one research natural area - the Turkey Creek Research Natural Area -- found within the project area. See Decision Memo.
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at 12 (AR 005910). Although the Decision Memo. does not state explicitly upon which materials
this determination relies, the Court concludes that the Forest Service’s other research -- which
includes the Water Specialist Report, the Miscellaneous Biological Assessment, and the Mexican
Gray Wolf Biological Assessment -- supports sufficiently the Forest Service’s conclusion that the
Aerial Shooting will improve rather than degrade the Turkey Creek Research Natural Area. See
supra, at 38-72. Regarding the sixth resource condition -- American Indians and Alaska Native
religious or cultural sites -- the Forest Service provides several correspondences between the
agency and nearby tribes, none of which identify any cultural sites that the Aerial Shooting will
impact. See supra, at 73-75. Finally, regarding the seventh resource condition -- archaeological
sites, or historic properties or areas -- the Forest Service provides its consultation with the district
archaeologist, who determines that the Aerial Shooting will have no effect on cultural or historic
resources. See supra, at 75-76. In sum, the Court concludes that these materials 79 are “more than
ample to determine whether extraordinary circumstances exist” and, thus, that the Forest Service
is not arbitrary or capricious in determining that there are no extraordinary circumstances related
to the Aerial Shooting. Utah Env’t Cong. v. Dale Bosworth, 443 F.3d. at 744.
The Court also concludes that the Animal Inspection Service’s determination that there are
no extraordinary circumstances is not arbitrary or capricious. The Animal Inspection Service relies
on and references specifically the Forest Service’s Decision Memo. and supporting materials,
79
That the Forest Service does not follow the Riparian Technical Reference’s
recommendations does not change this conclusion. The Court agrees with the Respondents; there
is no law that requires the Forest Service to follow the Riparian Technical Reference’s
recommendations for assessing riparian damage. See February 1, 2024, Tr. at 146:1-2 (Smith).
The Decision Memo. and its supporting materials demonstrate that the Forest Service’s
conclusions related to riparian damage in the Gila Wilderness are reasonable, notwithstanding that
the Forest Service does not follow the Riparian Technical Reference’s recommendations.
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including the Miscellaneous Biological Assessment and the Minimum Requirements Analysis in
the Animal Inspection Service CE Record. See Animal Inspection Service CE Record at 2-3
(AR 005894-95); id. at 4 (AR 005896)(“This [NEPA compliance] determination is based upon
current environmental laws, regulations, and policies, and made in consultation with [the Forest
Service].”). Accordingly, the Court concludes that the Respondents’ determination that there are
no extraordinary circumstances is not arbitrary or capricious, and, thus, the Respondents’ decision
categorically to exclude the Aerial Shooting from further NEPA review is not arbitrary or
capricious. 80
The Court also does not find sound the Petitioners’ NEPA arguments regarding the
Respondents’ scoping process. See Petitioners’ Merits Brief at 41-42. The Petitioners argue that
the Respondents “misused the scoping process,” which, according to the Petitioners, “is normally
the first step in preparation of an EIS.” Petitioners’ Merits Brief at 41. To support this contention,
the Petitioners point to 40 C.F.R. § 1501.9, the relevant language of which is now cabined in
40 C.F.R. § 1502.4. Compare 40 C.F.R. § 1502.4(a)(“Agencies shall use scoping, an early and
open process consistent with § 1501.9 of this subchapter, to determine the scope of issues for
analysis in an environmental impact statement, including identifying the important issues and
eliminating from further study unimportant issues.”), with Petitioners’ Merits Brief at 41
(“Generally, [a]gencies shall use an early and open process to determine the scope of issues for
analysis in an environmental impact statement, including identifying the significant issues and
eliminating from further study non-significant issues.”)(quoting 40 C.F.R. § 1501.9)(brackets in
Petitioners’ Merits Brief, but not in 40 C.F.R. § 1501.9). The Petitioners assert that, because the
Respondents exclude categorically the Aerial Shooting, and, thus, do not engage in a formal public
notice-and-comment period, the Respondents “abandon[] their obligations to conduct an open
public process.” Petitioners’ Merits Brief at 42. In response, the Respondents insist that, contrary
to the Petitioners’ assertions, the scoping process is not reserved for actions that require an EIS
and a formal notice-and-comment period. See Respondents’ Merits Response at 50. To support
their contention, the Respondents point to 36 C.F.R. § 220.4, which provides that “[s]coping is
required for all Forest Service proposed actions, including those that would appear to be
categorically excluded from further analysis and documentation in an EA or and EIS.”
36 C.F.R. § 220.4(e)(1).
The Court agrees with the Respondents. Nothing in 36 C.F.R. § 220.4 requires a formal
notice-and-comment period for actions which are excluded categorically from further NEPA
review, or implies that an agency that conducts a scoping process must later produce an EIS. See
36 C.F.R. § 220.4(e). Rather, 36 C.F.R. § 220.4 provides that scoping “shall be carried out in
accordance with the requirements of 40 C.F.R. 1501.7.” 36 C.F.R. § 220.4(e)(1). The Petitioners
do not allege that the Aerial Shooting’s scoping process does not comply with 40 C.F.R § 1501.7,
80
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IV.
THE AERIAL SHOOTING DOES NOT EXCEED THE RESPONDENTS’
STATUTORY AUTHORITY.
The Court concludes that the Aerial Shooting does not exceed the Respondents’ statutory
authority. Although the briefing focuses on the Impoundment Regulation Claim rather than on the
Statutory Authority Claim, see Petitioners’ Merits Brief at 8-25; Petitioners’ Merits Reply at 1124, the Complaint identifies one statutory provision and one regulation that relate to how the Aerial
Shooting allegedly exceeds the Respondents’ statutory authority: (i) 16 U.S.C. § 1133(c), which
is part of the Wilderness Act; and (ii) 36 C.F.R. § 262.10, which is promulgated under the Organic
Act, see Complaint ¶¶ 86-87, at 22. Regarding (i), the Petitioners allege that the Aerial Shooting
exceeds the Respondents’ statutory authority, because “the Wilderness Act[] presumptively
prohibits the use of ‘motorized equipment’ and ‘mechanical transport,’ such as the aircraft
intended to be used for shooting cattle here.”
Complaint ¶ 86, at 22 (emphasis in
Complaint)(quoting 16 U.S.C. § 1133(c)). Regarding (ii), the Petitioners allege:
The absence of statutory authority is further evidenced by the specific
regulation to control for and manage unauthorized livestock, 36 C.F.R. § 262.10.
That regulation sets forth the procedures that USFS must follow when removing
unauthorized livestock -- including the cattle targeted in the Aerial Shooting -- from
the wilderness. This regulation is consistent with the legal principle that unclaimed,
unauthorized, and unmanaged cattle are the property of New Mexico. The
regulation makes no allowance for the on-site destruction of such cattle. USFS
cannot skirt this regulatory limitation on how it removes unauthorized cattle on
which outlines how agencies must coordinate with one another if more than one agency is involved
in the same action. See 40 C.F.R § 1501.7. 36 C.F.R. § 220.4 also provides: “Because the nature
of complexity of a proposed action determine the scope and intensity of analysis, no single scoping
technique is required or prescribed.” 36 C.F.R. § 220.4(e)(2). The Respondents’ scoping process - providing several months of notice to various stakeholders and coordinating agencies, soliciting
public comments, and providing detailed responses in an appendix to the Decision Memo., see
supra, at 12-24, 76-85-- complies with the Forest Service’s scoping obligations pursuant to 36
C.F.R. § 220.4, and the Respondents do not misuse the scoping process by failing to produce an
EIS. Accordingly, the Court concludes that the Respondents’ scoping process does not violate the
NEPA.
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wilderness lands by deputizing another agency (APHIS) to unlawfully remove
cattle by Aerial Shooting.
Complaint ¶ 87, at 22-23. The Court addresses each argument in turn.
Regarding the Petitioners’ Wilderness Act argument, the Court concludes that: (i) the
Respondents’ helicopter use does not violate the 16 U.S.C. § 1133(c); and (ii) even if there is a
statutory violation, this violation does not mean that the Respondents exceed their statutory
authority. 16 U.S.C. § 1133(c) provides:
Except as specifically provided for in this chapter, and subject to existing private
rights, there shall be no commercial enterprise and no permanent road within
any wilderness area designated by this chapter and, except as necessary to meet
minimum requirements for the administration of the area for the purpose of this
chapter (including measures required in emergencies involving the health and
safety of persons within the area), there shall be no temporary road, no use of motor
vehicles, motorized equipment or motorboats, no landing of aircraft, no other form
of mechanical transport, and no structure or installation within any such area.
16 U.S.C. § 1133(c).
Reading
the
statute’s
plain
text,
the Court
concludes
that
16 U.S.C. § 1133(c) prohibits only the landing of aircraft in wilderness areas and not the operation
of aircraft above wilderness areas. In making this conclusion, the Court does not find sound the
Petitioners’ argument that, because 16 U.S.C. § 1133(c) limits the use of “motor vehicles,
motorized equipment or motorboats,” and “other form[s] of mechanical transport,” the
Respondents may not fly a helicopter over the Gila Wilderness. 16 U.S.C. § 1133(c). See
Complaint ¶ 86, at 22; Petitioners’ Merits Brief at 31-32; Petitioners’ Merits Reply at 26-27.
Principles of statutory interpretation affirm the Court’s reading.
The Supreme Court first
recognizes a presumption against rendering language superfluous Marbury v. Madison, 5 U.S. (1
Cranch) 137, 174 (1803)(“It cannot be presumed that any clause in the constitution is intended to
be without effect; and therefore such a construction is inadmissible, unless the words require it.”).
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This presumption against superfluity, also known as the “Surplusage Canon,” requires that, “if
possible, every word and every provision is to be given effect. None should be ignored. None
should needlessly be given an interpretation that causes it to duplicate another provision or to have
no consequence.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal
Texts at 174 (2012)(“Scalia & Garner”). Further, “because legal drafters should not include words
that have no effect, courts avoid a reading that renders some words altogether redundant.” Scalia
& Garner, supra at 176. Here, under the presumption of superfluity, the Court accords legal
significance to every phrase in 16 U.S.C. § 1133(c). The Petitioners’ position that flying a
helicopter is a motor vehicle, a piece of motorized equipment, a motorboat, or some other form of
mechanical transport within the meaning of 16 U.S.C. § 1133(c), would render the statute’s phrase,
“landing of aircraft,” redundant, because landing an aircraft is a way of using that aircraft.
16 U.S.C. § 1133(c). See Scalia & Garner, supra at 174. Stated otherwise, the Court accords
meaning to the word “aircraft” by recognizing that an “aircraft” -- e.g., a helicopter -- is not any
of the other machines listed in 16 U.S.C. § 1133(c).
Accordingly, the Court, reading the
provision’s plain text, concludes that 16 U.S.C. § 1133(c) only limits the landing of helicopters in
wilderness areas, and not the flying of helicopters over wilderness areas and, thus, the
Respondents’ helicopter use does not violate the 16 U.S.C. § 1133(c).
Even if a helicopter is a statutory motor vehicle, a piece of motorized equipment, a
motorboat, or some other form of mechanical transport under 16 U.S.C. § 1133(c), the
Respondents’
helicopter
use
still
would
not
violate
16 U.S.C. § 1133(c),
because
16 U.S.C. § 1133(c) allows agencies to use these machines “as necessary to meet minimum
requirements for the administration of the area for the purpose of this chapter.”
6 U.S.C. § 1133(c). The Court agrees with the Forest Service’s Minimum Requirements Analysis,
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which concludes: (i) removing the Gila Cows is necessary to preserve the wilderness character of
the Gila Wilderness, see Minimum Requirements Analysis at 2-8; and (ii) the Aerial Shooting is
the “minimal action necessary to accomplish the removal of feral cattle,” Minimum Requirements
Analysis at 33. Accordingly, the Court concludes that the Respondents’ helicopter use does not
violate 16 U.S.C. § 1133(c), because the helicopter use is “necessary to meet minimum
requirements for the administration of the area for the purpose” of the Wilderness Act.
16 U.S.C. § 1133(c).
Although the Court concludes -- for two separate reasons -- that the Respondents’
helicopter use does not violate 16 U.S.C. § 1133(c), the Court also concludes that, even if there is
a violation, that violation does not mean that the Respondents exceed their statutory authority. The
Petitioners do not allege, and could not allege plausibly, that the Forest Service or the Animal
Inspection Service derive their statutory authority from the Wilderness Act. One of the statutes
that grants the Forest Service authority to conduct the Aerial Shooting is the Organic Act, which
provides that the Agriculture Secretary “shall make provisions for the protection against
destruction by fire and depredations upon the public forests and national forests,” and that “he may
make such rules and regulations and establish such service as will insure the objects of such
reservations, namely, to regulate their occupancy and use and to preserve the forests thereon from
destruction.” 16 U.S.C. § 551. One of the statutes that grants the Animal Inspection Service
authority to conduct the Aerial Shooting is the Animal Damage Control Act, 7 U.S.C. § 8351-56,
which provides that the Agriculture Secretary “may conduct a program of wildlife services with
respect to injurious animal species and take any action the Secretary considers necessary in
conducting the program.” 7 U.S.C. § 8351. The Aerial Shooting falls within these grants of
authority, because the Aerial Shooting is designed to preserve the Gila National Forest and the
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Gila Wilderness, and to remove the injurious Gila Cows.
Thus, potentially violating the
Wilderness Act does not exceed either agency’s statutory authority. Accordingly, the Court
concludes that, even if the Respondents violate 16 U.S.C. § 1133(c), the Respondents do not
exceed their statutory authority in conducting the Aerial Shooting.
Regarding (ii) -- i.e., the Petitioners’ statutory authority arguments related to the
Respondents’ alleged 36 C.F.R. § 262.10 violations -- the Court concludes similarly that: (i) the
Respondents do not violate 36 C.F.R. § 262.10; and (ii) even if there is a violation, that violation
does not mean that the Respondents exceed their statutory authority. The Court analyzes fully
whether the Respondents violate 36 C.F.R. § 262.10 in the following section, when it evaluates
the Impoundment Regulation Claim’s merits. See infra, at 221-37. Based on this analysis, the
Court concludes that the Respondents do not violate 36 C.F.R. § 262.10, because the Gila Cows
are not unauthorized cattle, as the Forest Service regulations define that term. See infra, at 22637. The Court also concludes that, even if the Aerial Shooting violates 36 C.F.R. § 262.10, that
violation does not mean that the Respondents exceed their statutory authority, because 36 C.F.R.
§ 262.10 is a regulation that governs the Forest Service’s activities, and not a law that grants either
the Forest Service or the Animal Inspection Service statutory authority to conduct those activities.
The allegation that the Respondents violate 36 C.F.R. § 262.10 is just that: an allegation that the
Respondents violate a regulation, and not an allegation that the Respondents exceed their statutory
authority. To challenge the Respondents’ statutory authority, the Petitioners would have to
identify how the Aerial Shooting contravenes one of the laws that grants the Respondents’
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statutory authority. Accordingly, the Court concludes that the Aerial Shooting does not exceed
the Respondents’ statutory authority. 81
V.
THE AERIAL SHOOTING DOES NOT VIOLATE THE FOREST SERVICE’S
REGULATIONS.
The Court concludes that the Aerial Shooting does not violate the Forest Service’s
regulations, because the Gila Cows are not unauthorized livestock, as the Forest Service
regulations define that term, and, thus, the Forest Service does not need to impound the Gila Cows
before killing them. The thrust of the Petitioners’ argument is that the Aerial Shooting violates
36 C.F.R. § 262.10, which provides: “Unauthorized livestock or livestock in excess of those
authorized by a grazing permit on the National Forest System, which are not removed therefrom
within the periods prescribed by this regulation, may be impounded and disposed of by a forest
officer as provided herein.” 36 C.F.R. § 262.10. 36 C.F.R. § 262.10 then prescribes procedures
for removing unauthorized livestock. See 36 C.F.R. § 262.10(a)-(f). When a Forest Service
officer discovers unauthorized livestock, the officer “may” impound the animal five days after
notifying the animal’s owner, 36 C.F.R. § 262.10(a), or, if the officer does not know who the
owner is, the officer “may” impound the animal fifteen days after providing public notice -- in the
form of publishing in a local newspaper, and posting at the county courthouse and one or more
local post offices -- of the Forest Service’s intent to impound the livestock, 36 C.F.R. § 262.10(b).
Either of these impoundment processes “may” be initiated, without further private or public notice,
at any time within twelve months of the initial notice. 36 C.F.R. § 262.10(c). After the Forest
The Petitioners’ reference to the Forest Service’s 2019 Draft Revised Forest Plan for the
Gila National Forest, see Complaint ¶ 86, at 22, does not change this conclusion. The 2019 Draft
Revised Forest Plan for the Gila National Forest is not a law that grants either the Forest Service
or the Animal Inspection Service statutory authority.
81
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Service impounds the livestock, “a notice of sale of impounded livestock will be published in a
local newspaper and posted at the county courthouse and in one or more local post offices,” and
that public notice will specify the time, date, and location of the sale, which “shall be at least five
days after” the public notice. 36 C.F.R. § 262.10(d). If the impounded livestock has an owner,
the owner “may redeem the livestock any time before” the public sale “by submitting proof of
ownership and paying for all expenses incurred” by the Forest Service in impounding the animal.
36 C.F.R. § 262.10(e). If the impoundment costs exceed the livestock’s fair market value, then a
“minimum acceptable redemption price at fair market value may be established.”
36 C.F.R. § 262.10(e). If no owner redeems the impounded livestock, the livestock “shall be sold
at public sale to the highest bidder, provided this bid is at or above the minimum amount set by
the Forest Service.” 36 C.F.R. § 262.10(f). If there is no acceptable bid, the livestock “may be
sold at a private sale at or above the minimum amount, reoffered at public sale, condemned and
destroyed, or otherwise disposed of.” 36 C.F.R. § 262.10(f).
The Petitioners argue that, because the Forest Service did not follow these steps when
removing the Gila Cows, the Aerial Shooting violates 36 C.F.R. § 262.10. See Petitioners’ Merits
Brief at 8-25; Petitioners’ Merits Reply at 11-21. The Petitioners insist that the Forest Service
must follow 36 C.F.R. § 262.10 when removing the Gila Cows, because the Gila Cows are
unauthorized livestock, as 36 C.F.R. § 261.2 defines that term:
Unauthorized livestock means any cattle, sheep, goat, hog, or equine not defined as
a wild free-roaming horse or burro by § 222.20(b)(13), which is not authorized by
permit to be upon the land on which the livestock is located and which is not related
to use authorized by a grazing permit; provided, that noncommercial pack and
saddle stock used by recreationists, travelers, other Forest visitors for occasional
trips, as well as livestock to be trailed over an established driveway when there is
no overnight stop on Forest Service administered land do not fall under this
definition.
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36 C.F.R. § 261.2. The Respondents argue that 36 C.F.R. § 262.10 does not apply to the Gila
Cows, because the Gila Cows are not unauthorized livestock. See Respondents’ Merits Response
at 17-37. In asserting that the Gila Cows are not unauthorized livestock, the Respondents urge the
Court not to read 36 C.F.R. § 261.2 in a vacuum and to incorporate other Forest Service regulations
to harmonize the regulatory scheme. See Respondents’ Merits Response at 17-31. Specifically,
the Respondents argue that the 36 C.F.R. § 261.2 definition does not apply to the Gila Cows,
because the Gila Cows are not “livestock” at all, as 36 C.F.R. § 222.1 defines that term: “Livestock
means animals of any kind kept or raised for use or pleasure.” Stated otherwise, the Respondents
construe 36 C.F.R. § 261.2, 36 C.F.R. § 262.10, and 36 C.F.R. § 222.1 together, so that
“unauthorized livestock,” as 36 C.F.R. § 261.2 defines and 36 C.F.R. § 262.10 references, applies
only to animals “kept for use or pleasure,” and not to the Gila Cows, who do not have owners.
Respondents’ Merits Response at 17-31.
The Court undertakes its analysis whether the Aerial Shooting violates Forest Service
regulations in two parts. First, the Court considers and rejects the Respondents’ argument that the
Forest Service’s impoundment procedures are discretionary.
Next, the Court evaluates
36 C.F.R. § 261.2, 36 C.F.R. § 262.10, and 36 C.F.R. § 222.1, and concludes that, based on the
regulations’ text, history, structure, and purpose, 36 C.F.R. § 262.10 applies only to domesticated
animals, and, thus, that the Forest Service does not violate its own regulations by killing the Gila
Cows without impounding them first.
A.
36 C.F.R. § 262.10 IS MANDATORY.
As a threshold issue, the Court does not find sound the Respondents’ alternative defense
that 36 C.F.R. § 262.10’s impoundment procedures are discretionary and not mandatory. See
Respondents’ Merits Response at 34 (“The regulation is drafted only in the permissive ‘may be
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impounded,’ preserving the agency’s discretion to not take any removal action at all, or to remove
the animals using other methods.”)(internal quotations have no citation). This argument is not
persuasive. At a high level, it is unlikely that the Forest Service would promulgate a regulation
that the agency can choose to ignore, particularly when that regulation describes specific
procedures for the agency to follow. The text confirms this notion. 36 C.F.R. § 262.10 states that
unauthorized livestock or livestock in excess of those authorized by a grazing permit “may be
impounded and disposed of by a forest officer as provided herein.” 36 C.F.R. § 262.10. In context,
“as provided herein” indicates that the provision’s procedures are mandatory if the Forest Service
chooses to impound and dispose of any animals to which the regulation applies.
36 C.F.R. § 262.10. The phrase “may be impounded,” 36 C.F.R. § 262.10, means that the Forest
Service has discretion whether to impound and dispose of the animals, but does not mean that the
Forest Service has discretion “to remove the animals using other methods,” Respondents’ Merits
Response at 34.
36 C.F.R. § 262.10’s sub-sections -- i.e., the impoundment procedures
themselves -- reinforce these conclusions. 36 C.F.R. § 262.10(a) provides that livestock “may be
impounded any time five days after written notice of intent to impound such livestock is mailed
by certified or registered mail or personally delivered to such owners.” 36 C.F.R. § 262.10(a).
This clause’s first part indicates that the decision to impound an animal -- whose owner is known - is discretionary, see 36 C.F.R. § 262.10(a) (“may be impounded”), and the second part of this
clause indicates that, if the Forest Service exercises that discretion, the agency must notify the
animal’s owner in a specific way, see 36 C.F.R. § 262.10(a) (“any time five days after written
notice of intent to impound such livestock is mailed”).
The same analysis applies to
36 C.F.R. § 262.10(b), which provides similarly that livestock “may be impounded any time 15
days after the date a notice of intent to impound livestock is first published in a local newspaper
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and posted at the county courthouse and in one or more local post offices.” 36 C.F.R. § 262.10(b).
Importantly, other sub-sections include mandatory language. 36 C.F.R. § 262.10(d) provides:
“Following the impoundment of livestock, a notice of sale of impounded livestock will be
published in a local newspaper and posted at the county courthouse and in one or more local post
offices.” 36 C.F.R. § 262.10(d). This sub-section describes a mandatory procedure for publishing
the notice of sale if the Forest Service impounds livestock under 36 C.F.R. § 262.10. See Nat.
Res. Def. Council, Inc. v. James R. Perry, 940 F.3d 1072, 1078 (9th Cir. 2019)(“The word ‘will,’
like the word ‘shall,’ is a mandatory term, see Washington v. Harper, 494 U.S. 210, 221 . . . (1990),
unless something about the context in which the word is used indicates otherwise.”)(ellipses
added)(internal quotations have no citation). 36 C.F.R. § 262.10(f) provides that, if livestock are
not redeemed on or before the public sale, “they shall be sold at public sale to the highest bidder.”
36 C.F.R. § 262.10(f). Again, this language indicates that, if the Forest Service impounds an
animal under 36 C.F.R. § 262.10 and no owner claims the animal in time, the Forest Service must
put up the animal for public sale. See United States v. Myers, 106 F.3d 936, 941 (10th Cir.
1997)(“It is a basic canon of statutory construction that use of the word ‘shall’ indicates a
mandatory intent.”)(internal quotation has no citation). Accordingly, the Court concludes that
36 C.F.R. § 262.10 is not a discretionary regulation. If 36 C.F.R. § 262.10 applies to the Gila
Cows, the Forest Service must follow 36 C.F.R. § 262.10’s procedures if the agency wants to
remove the Gila Cows.
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B.
36 C.F.R. § 262.10 IS UNAMBIGUOUS AND APPLIES ONLY TO
DOMESTICATED ANIMALS.
The Court agrees with the parties and concludes that the relevant provisions are
unambiguous and thus Auer deference does not apply. 82 See February 1, 2024, Tr. at 62:24- 63:20
Like the Court’s conclusion regarding CE 6’s unambiguity in the foregoing NEPA
analysis, the Court’s conclusion regarding the impoundment regulations is of limited consequence,
because the Court reaches the same conclusion on the meaning of these regulations as the Forest
Service. See supra, at 206 n.77; Respondents’ Merits Response at 17-31.
The Court’s conclusion that the provisions are unambiguous and thus Auer deference does
not apply, also takes care of the Petitioner’s arguments related to the Forest Service’s historic
practice of referring to the Gila Cows as unauthorized livestock, which is relevant only to whether
an agency’s interpretation of an ambiguous regulation is entitled to Auer deference, and not what
an unambiguous regulation means. See Kisor v. Wilkie, 588 U.S. at 579 (“We have [] only rarely
given Auer deference to an agency construction ‘conflict[ing] with a prior’ one.”)(quoting Thomas
Jefferson Univ. v. Shalala, 512 U.S. 504, 515, (1994)(Kennedy, J.)). Even if there were an Auer
issue, the Forest Service’s practice of referring to the Gila Cows as unauthorized livestock would
not make their present interpretation -- that the Gila Cows are not unauthorized livestock - unreasonable and not entitled to Auer deference, because the Forest Service’s past use of the term
is not an official or authoritative position on the term’s meaning:
82
[W]e have laid out some especially important markers for identifying when Auer
deference is and is not appropriate.
To begin with, the regulatory interpretation must be one actually made by
the agency. In other words, it must be the agency's “authoritative” or “official
position,” rather than any more ad hoc statement not reflecting the agency's views.
[United States v. ]Mead[ Corp.], 533 U.S. [218,] 257-259, and
n.6 . . . [(2001)](Scalia, J., dissenting)]. That constraint follows from the logic of
Auer deference -- because Congress has delegated rulemaking power, and all that
typically goes with it, to the agency alone. Of course, the requirement of
“authoritative” action must recognize a reality of bureaucratic life: Not everything
the agency does comes from, or is even in the name of, the Secretary or his chief
advisers. So, for example, we have deferred to “official staff memoranda” that were
“published in the Federal Register,” even though never approved by the agency
head. Ford Motor Credit[ Co. v. Milhollin], 444 U.S. [555,] 566, n.9, 567,
n.10 . . . [(1980)(Brennan, J.)](declining to “draw a radical distinction between”
agency heads and staff for Auer deference). But there are limits. The interpretation
must at the least emanate from those actors, using those vehicles, understood to
make authoritative policy in the relevant context. See, e.g., Paralyzed Veterans[ of
Am. v. D.C. Arena L.P.], 117 F.3d [579,] 587 [(D.C. Cir. 1997)](refusing to
consider a “speech of a mid-level official” as an “authoritative departmental
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position”); N. Y. State Dept. of Social Servs. v. Bowen, 835 F.2d 360, 365-366
([D.C. Cir.] 1987)(rejecting the idea that an “informal memorandum” recounting a
telephone conversation between employees could count as an “authoritative
pronouncement”); Exelon Generation Co. v. Local 15, Int’l Brotherhood of Elec.
Workers, AFL-CIO, 676 F.3d 566, 576-578 ([7th Cir.] 2012)(declining deference
when the agency had itself “disclaimed the use of regulatory guides as
authoritative”). If the interpretation does not do so, a court may not defer.
Kisor v. Wilkie, 588 U.S. at 576-77 (ellipses and brackets added by this Court). The same
logic applies to the Petitioners’ argument that, because the Forest Service’s proposed forest plan
refers to the Gila Cows as “feral domestic livestock,” the Court “should reject USFS’s position in
this lawsuit” and “conclude that the Gila Cattle fall within the definition of ‘unauthorized
livestock’ that must be impounded in accordance with 36 C.F.R. § 262.10.” Supplemental
Authority Brief at 2-3 (internal quotations have no citations)(citing Gila National Forest, U.S.
Forest Service, Land Management Plan: Catron, Grant Hidalgo, and Sierra Counties, New Mexico
at 140 (dated July 30, 2024), filed January 10, 2025 (Doc. 68-1)(“July 30, 2024, Forest Plan”)).
In response, the Respondents make four arguments: (i) the July 30, 2024, Forest Plan is not
properly before the Court, because the Court “‘may not consider materials outside of the
administrative record’” for the challenged agency decision, Supplemental Authority Response at
1 (quoting Jarita Mesa Livestock Grazing Ass’n v. U.S. Forest Serv., 58 F. Supp. 3d at 1224);
(ii) the Petitioners’ quoted passage neither interprets nor applies the term “livestock” in
36 C.F.R § 262.10, and, instead, the “passage mostly discusses efforts ‘to eradicate feral hogs,’
not impound them,” Supplemental Authority Response at 2; (iii) the July 30, 2024, Forest Plan is
“not a final authoritative statement by the Forest Service,” because it is “subject to modification”
while it is currently undergoing an “administrative objections process,” after which the Forest
Supervisor may approve it, Supplemental Authority Response at 2 (citing Forest Plan Federal
Register Notice at 61059); and (iv) 2022 dictionary definitions suggest that the phrase “‘feral
domestic livestock’” means that the Gila Cows are wild animals who are descended from
domesticated animals, and, thus, the Gila Cows are not subject to 36 C.F.R. § 262.10.
Supplemental Authority Response at 1-3 (quoting July 30, 2024, Forest Plan at 140).
As a threshold matter, the Court concludes that the July 30, 2024, Forest Plan is not
properly before the Court, because it is not an authoritative regulatory interpretation that may be
submitted as supplemental authority pursuant to the Federal Rules of Appellate Procedure. The
July 30, 2024, Forest Plan is not a “regulatory interpretation” that reflects the Forest Service’s
official interpretation of 36 C.F.R. § 262.10. Kisor v. Wilkie, 588 U.S. at 576-77. See
Supplemental Authority Response at 2 (asserting that the July 30, 2024, Forest Plan is “is not a
final authoritative statement by the Forest Service,” because the July 30, 2024, Forest Plan is
“subject to modification” while undergoing an “administrative objections process,” after which
the Forest Supervisor may approve it); Forest Plan Federal Register Notice at 61058 (stating that
the public has sixty days to “file objections for Forest Service review prior to the approval” of the
July 30, 2024, Forest Plan). The Court thus agrees with the Respondents’ second and third
arguments, and concludes that the July 30, 2024, Forest Plan is neither an interpretation of the
relevant provisions, nor a final, authoritative interpretation by the Forest Service. Rule 28(j) allows
a party to submit supplemental authority “[i]f pertinent and significant authorities come to a party’s
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(Court, Smith, McGuire).
The Court also concludes, however, that the Forest Service’s
interpretation is correct, and that 36 C.F.R. § 262.10 applies only to domesticated animals. In
concluding that the provisions are unambiguous and that 36 C.F.R. § 262.10 applies only to
domesticated animals, the Court looks to “the traditional tools of construction, such as the
regulatory ‘text, structure, history, and purpose.’” Sierra Club v. U.S. Env’t Prot. Agency, 964
F.3d at 891 (quoting Kisor v. Wilkie, 588 U.S. at 559). Beginning with the text, the Court
concludes that the Forest Service’s “unauthorized livestock” definition -- which the Forest Service
promulgated on January 14, 1977, see 36 C.F.R. § 261.2 -- does not include wild animals, because
relevant 1976 dictionary definitions of the provision’s undefined terms indicate that the provision
refers only to domestic animals. See Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 566
(2012)(“When a term goes undefined in a statute, we give the term its ordinary meaning.”); Utah
v. Evans, 536 U.S. 452, 455 (2002)(Scalia, J.)(using contemporaneous dictionary definitions to
attention after the party’s brief has been filed.” Fed. R. App. P. 28(j). See Olenhouse, 42 F.3d at
1580 (holding that “the district court should govern itself by referring to the Federal Rules of
Appellate Procedure” when reviewing agency action). Because the July 30, 2024, Forest Plan is
not an authoritative regulatory interpretation, the July 30, 2024, Forest Plan is not a “pertinent” or
“significant” authority that may be submitted pursuant to rule 28(j). Fed. R. App. P. 28(j).
Accordingly, the Court concludes that the July 30, 2024, Forest Plan is not properly before the
Court.
Next, the Court concludes that, even if the July 30, 2024, Forest Plan is an authoritative
regulatory interpretation, and thus the July 30, 2024, Forest Plan is properly before the Court, the
Court’s conclusion that 36 C.F.R. § 262.10 is unambiguous means that the Court does not defer to
the Forest Service’s interpretation under Auer. Accordingly, the July 30, 2024, Forest Plan’s
statements about feral domestic livestock are not relevant to what 36 C.F.R. § 262.10’s
unambiguous language means. Cf. Kisor v. Wilkie, 588 U.S. at 579. Finally, even if there is an
Auer issue and the July 30, 2024, Forest Plan is an authoritative regulatory interpretation, the Court
agrees with the Respondents’ fourth argument, and concludes that the term “feral domestic
livestock” means that the Gila Cows are wild animals that are descended from animals that were
once domesticated, and, accordingly, the Gila Cows are not subject to 36 C.F.R. § 262.10, even
using the July 30, 2024, Forest Plan’s language. July 30, 2024, Forest Plan at 140. Accordingly,
the Court determines that the July 30, 2024, Forest Plan does not change the Court’s conclusions
regarding what 36 C.F.R. § 262.10 means and whether the regulation applies to the Gila Cows.
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evaluate Constitutional language); Hibbs v. Winn, 542 U.S. 88, 117 (2004)(Ginsburg, J.,
dissenting)(using contemporaneous dictionary definitions to evaluate undefined statutory terms);
Garland v. Cargill, 602 U.S. 406, 437 (2024)(Sotomayor, J., dissenting)(using contemporaneous
dictionary definitions to evaluate undefined statutory terms and observing that contemporaneous
dictionary definitions are “some of the best evidence of contemporaneous understanding”); In re
Mallo, 774 F.3d 1313, 1321 (10th Cir. 2014)(“Dictionary definitions are useful touchstones to
determine the ‘ordinary meaning’ of an undefined statutory term.”)(internal quotation has no
citation). First, although 36 C.F.R. § 261.2 defines “unauthorized livestock,” it does not define
“livestock.” 36 C.F.R. § 261.2. 83 Accordingly, the Court gives the undefined word “livestock” its
ordinary meaning, which, as contemporaneous dictionary definitions indicate, does not include
wild animals. See The American Heritage Dictionary of the English Language: New College
Edition at 764 (1976)(defining “livestock” as “[d]omestic animals such as cattle, horses, sheep,
hogs, or goats, raised for home use or for profit”). 84 The Court applies the same logic to each
undefined animal listed in the 36 C.F.R. § 262.1 “unauthorized livestock” definition.
36 C.F.R. § 262.1. The 1976 dictionary definitions of each animal, other than equines, indicate
Although the Forest Service defines “livestock” in 36 C.F.R. § 222.1, the Forest Service
promulgated 36 C.F.R. § 222.1 ten months after it promulgated 36 C.F.R. § 261.2. See
36 C.F.R. § 222.1 (indicating that it was promulgated on October 28, 1977); 36 C.F.R. § 261.2
(indicating that it was promulgated on January 14, 1977). Because 36 C.F.R. § 222.1 did not exist
when the Forest Service promulgated 36 C.F.R. § 261.2, the term, “livestock,” was undefined in
36 C.F.R. § 261.2 when it was drafted, and the Court uses contemporaneous dictionary definitions
to glean that undefined term’s ordinary meaning.
83
The 1976 dictionary’s examples of domestic animals are the same animals that the Forest
Service lists in its “unauthorized livestock” definition, which further supports the Court’s
conclusion that 36 C.F.R. § 262.1 refers only to domesticated animals. 36 C.F.R. § 262.1
(“Unauthorized livestock means any cattle, sheep, goat, hog, or equine not defined as a wild freeroaming horse or burro . . . .”)
84
- 230 -
that each word “especially” refers to domesticated animals. The American Heritage Dictionary of
the English Language: New College Edition at 213 (defining “cattle” as “[v]arious animals of the
genus Bos, especially those of the domesticated species B. taurus, raised in many breeds for meat
and dairy products); 85 id. at 1192 (defining “sheep” as “[a]ny of the various usually horned,
ruminant mammals of the genus Ovis; especially, the domesticated species O. aries, raised in many
breeds for its wool, edible flesh, or skin”); id. at 564 (defining “goat” as “[a]ny of the various
horned, bearded ruminant mammals of the genus Capra, originally of mountainous regions of the
Old World; especially, one of the domesticated forms of C. hircus”); id. at 627 (defining “hog” as
“[a] domesticated pig, especially one weighing over 120 pounds”). 86 The same 1976 dictionary
Interestingly, this entry also includes an obsolete definition that defines “cattle” as simply
“[d]omestic animals.” The American Heritage Dictionary of the English Language: New College
Edition (1976) at 213.
85
This entry also includes a definition, which comes before the definition that the Court
uses above, that defines “hog” as “[a]ny of the various mammals of the family Suidae, which
includes the domesticated pig as well as wild species, such as the boar and the wart hog.” The
American Heritage Dictionary of the English Language: New College Edition at 627. The
dictionary editors explain that, where an entry has multiple definitions, the first definition is not
any more correct than subsequently listed definitions:
86
Numerous English words have a spread of more than three or four distinct meanings
or shades of meaning that must be identified and distinguished as separate semantic
aspects and presented in a meaningful and useful order. The editors of this
Dictionary have taken the position that the most useful order for the general user is
neither historical nor by statistical frequency, even if sufficient evidence were
available for either of those schemes. The order used here is an effort to arrange a
complex word in a psychologically meaningful order, with one subgroup leading
into another, so that the word can to some extent be perceived as a structured unit
rather than a string of unrelated senses.
Guide to the Dictionary: Order of Definitions, The American Heritage Dictionary of the English
Language: New College Edition at xlvi. Accordingly, the Court concludes that the fact that the
Court’s definition appears after another definition that includes wild animals does not mean that
the Court’s definition is less appropriate than the preceding definition. In any event, the fact that
one of the animals listed in the Forest Service’s “unauthorized livestock” definition has an
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defines “equine” as “[o]f or belonging to the family Equidae, which includes the horses, asses, and
zebras.” The American Heritage Dictionary of the English Language: New College Edition at
442. That the 1976 dictionary definition of “equine” is the only definition which does not state
that the defined word “especially” refers to domesticated animals reinforces the Court’s reading
of the Forest Service’s “unauthorized livestock” definition, which carves out “wild free-roaming
horse[s] or burro[s]” from the “equine” category, and not from the other animal categories.
36 C.F.R. § 261.2 (“Unauthorized livestock means any cattle, sheep, goat, hog, or equine not
defined as a wild free-roaming horse or burro by § 222.20(b)(13), which is not authorized by
permit . . . .”). In sum, the ordinary meanings of the provision’s undefined terms demonstrate that
the Forest Service’s 36 C.F.R. § 261.2 “unauthorized livestock” definition is unambiguous and
refers only to domesticated animals and not to wild animals. Accordingly, the Court concludes
that, based on the Court’s reading of 36 C.F.R. § 261.2’s plain text, the Forest Service’s
impoundment procedures -- 36 C.F.R. § 261.10 -- apply only to domesticated animals and not to
wild animals, like the Gila Cows. See Decision Memo. at 1 (AR 005899)(noting that the Gila
Cows “have not been husbanded, cared for by private owners, or kept or raised on a ranch for
several generations, and are thus not domesticated”); Petitioners’ Merits Brief at 20
(acknowledging that the Gila Cows are not privately owned);
Principles of statutory interpretation affirm the Court’s reading. “Under the in pari materia
canon, statutes addressing the same subject matter generally should be read ‘as if they were one
law.’” Wachovia Bank v. Schmidt, 546 U.S. 303, 316 (2006)(Ginsburg, J.)(quoting Erlenbaugh
alternative dictionary definition which includes wild animals does not change the Court’s
conclusion that the Forest Service’s “unauthorized livestock” definition does not refer to wild
animals. 36 C.F.R. § 261.2.
- 232 -
v. United States, 409 U.S. 239, 243 (1972))(quoting United States v. Freeman, 44 U.S. 556, 564
(1845)). See Navajo Health Found.-Sage Mem’l Hosp., Inc v. Burwell, 220 F. Supp. 3d 1190,
1261 (D.N.M. 2016)(Browning J.)(holding that, pursuant to the in pari materia canon, “regulations
on the same subject matter are to be construed together if possible”)(citing Erlenbaugh v. United
States, 409 U.S. at 243-44); Scalia & Garner, supra, at 252 (“Several acts in pari materia, and
relating to the same subject, are to be taken together, and compared in the construction of them,
because they are considered as having one object in view, and as acting
upon one
system.”)(quoting 1 James Kent, Commentaries on American Law 433 (1826)).
The canon is [] based upon a realistic assessment of what the legislature ought to
have meant. It rests on two sound principles: (1) that the body of the law should
make sense, and (2) that it is the responsibility of the courts, within the permissible
meanings of the texts, to make it so.
Scalia & Garner, supra, at 252. In applying the in pari materia canon, the “critical questions” are:
(i) “[j]ust how affiliated” must the separate statutes or regulations be; and (ii) “what purposes are
the same?” Scalia & Garner, supra, at 253.
The Court concludes that the relevant regulations in this case -- 36 C.F.R. § 261.2,
36 C.F.R. § 262.10, and 36 C.F.R. § 222.1 -- should be construed in pari materia.
All three
regulations are in Chapter II of the Code of Federal Regulations -- titled, “Forest Service,
Department of Agriculture” -- and the Forest Service promulgated them in the same year.
36 C.F.R. § 261.2; 36 C.F.R. § 262.10; and 36 C.F.R. § 222.1.
promulgated
36 C.F.R. § 222.1
ten
months
after
That the Forest Service
promulgating
36 C.F.R. § 261.2;
36 C.F.R. § 262.10 does not counsel against construing the three regulations in pari materia. 87 See
Although the Court concludes that 36 C.F.R. § 261.2 and 36 C.F.R. § 262.10 are not
ambiguous, the Forest Service’s subsequent promulgation of 36 C.F.R. § 222.1 would, if anything,
clarify ambiguities in favor of the Forest Service’s interpretation. See Scalia & Garner, supra, at
87
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36 C.F.R. § 222.1 (indicating that it was promulgated on October 28, 1977); 36 C.F.R. § 261.2
(indicating that it was promulgated on January 14, 1977); 36 C.F.R. § 262.10 (indicating that it
was promulgated on January 14, 1977); In re Meyer, 355 B.R. 837, 847 (Bankr. D.N.M.
2006)(Starzynski, B.J.)(“[S]tatutes must all be construed in pari materia if possible, regardless of
the differing dates of enactment.”)(citing Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U.S.
437, 444 (1987)(Rehnquist, C.J.)). All three regulations are promulgated under the same statutory
authority: the Organic Act. See 36 C.F.R. § 261.2; 36 C.F.R. § 262.10; and 36 C.F.R. § 222.1.
Although the three regulations appear in different parts of the Code of Federal Regulations, each
part contributes to a regulatory framework that governs how the Forest Service may control
activities -- including livestock grazing -- on national forests. 36 C.F.R. § 261.2 -- i.e., the Forest
Service’s “unauthorized livestock” definition -- appears in part 261, which is titled “Prohibitions.”
36 C.F.R. § 261.2. 36 C.F.R. § 261.1 -- titled “Scope” -- provides that the “prohibitions in this
part apply” when an “act or omission” occurs in the National Forest System or affects, threatens,
or endangers Forest Service property or people using Forest Service lands. 36 C.F.R. § 261.1.
Part 261’s subsections describe prohibitions related to, among other things, disorderly conduct,
fire use, timber gathering, livestock management, hunting, motor vehicle use, and recreation in
national forests. See 36 C.F.R. §§ 261.4-261.8, 261.13, 261.16-17. 36 C.F.R. § 262.10 -- i.e., the
Forest Service’s unauthorized livestock impoundment procedures -- appears in part 262, which is
titled “Law Enforcement Support Activities.”
Part 262’s subsections describe how law
252 (“It is a logical consequence of [the principle of in pari materia] that the meaning of an
ambiguous provision may change in light of a subsequent enactment.”)(citing United States v.
Stewart, 311 U.S. 60, 64 (1940), and including a parenthetical which states: “construing Revenue
Acts of 1916 and 1928 in pari materia to resolve ‘ambiguities and doubts’ about meaning of
language of earlier statute”).
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enforcement may reward individuals who provide information related to unlawful activities on
Forest Service land, including stealing property and starting dangerous fires, see
36 C.F.R. §§ 262.2-3, as well as how the Forest Service may impound loose dogs, unauthorized
livestock, and other unauthorized property found on Forest Service lands, see 36 C.F.R. §§ 262.1012. 36 C.F.R. § 222.1 -- i.e., the Forest Service’s “livestock” definition -- appears in part 222,
which is titled “Range Management.” Part 222’s subsections describe how the Forest Service:
(i) issues, changes, and otherwise manages grazing and livestock use allotments, permits and
permittees, see 36 C.F.R. §§ 222.1-11; (ii) mediates grazing permit disputes, 36 C.F.R. §§ 222.2026; (iii) charges fees for grazing and livestock use on Forest Service lands, see
36 C.F.R. §§ 222.50-54; and (iv) manages wild free-roaming horses and burros, see
36 C.F.R. §§ 222.60-76. The Court concludes that parts 261, 262, and 222 concern the same
subject matter and contribute to the same purpose, insofar as each part describes how the Forest
Service manages a variety of private activities on national forests. Accordingly, the Court
concludes that 36 C.F.R. § 261.2, 36 C.F.R. § 262.10, and 36 C.F.R. § 222.1 should be construed
in pari materia. See United States v. Ressam, 553 U.S. 272, 276-77 (2008)(Steven, J.)(construing
together 18 U.S.C. § 924(c)(1)(A) and 18 U.S.C. § 844(h)(2), where the former enhances the
criminal penalty for carrying a firearm in connection with a drug trafficking crime, and the latter
enhances the penalty for carrying an explosive while committing any felony).
Construing 36 C.F.R. § 261.2, 36 C.F.R. § 262.10, and 36 C.F.R. § 222.1 in pari materia
reinforces the Court’s reading of 36 C.F.R. § 261.2’s plain text and subsequent conclusion that
36 C.F.R. § 262.10 applies only to domesticated animals. 36 C.F.R. § 222.1 defines a term - “livestock” -- that 36 C.F.R. § 261.2 uses, but does not define.
36 C.F.R. § 222.1.
See
36 C.F.R. § 261.2. Reading the two provisions in pari materia, the Court interprets the two
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provisions so that they are consistent with one another and concludes that 36 C.F.R. § 261.2’s
“unauthorized livestock” definition refers to “livestock” as 36 C.F.R. § 222.1 defines that term.
Because 36 C.F.R. § 222.1 defines livestock as “animals of any kind kept or raised for use or
pleasure,” the Court’s in pari materia reading of the two provisions aligns with 36 C.F.R. § 261.2’s
plain meaning -- i.e., that “unauthorized livestock” refers only to domesticated animals. Using
this consistent definition to interpret 36 C.F.R. § 262.10, the Court concludes that
36 C.F.R. § 262.10 applies only to domesticated animals and not to wild animals, like the Gila
Cows.
The
presumption
against
superfluity
also
reinforces
the
Court’s
reading.
36 C.F.R. § 262.10(e) provides that, after the Forest Service impounds unauthorized livestock and
provides public notice that the impounded animal will be sold publicly, “[t]he owner may redeem
the livestock any time before the date and time set for the sale by submitting proof of ownership
and paying for all expenses incurred by the United States in gathering, impounding, and feeding
or pasturing the livestock.”
36 C.F.R. § 262.10(e).
If 36 C.F.R. § 262.10 applies to non-
domesticated animals like the Gila Cows, then 36 C.F.R. § 262.10(e) is meaningless, because these
wild animals do not have owners who could redeem them, pursuant to 36 C.F.R. § 262.10(e). See
Scalia & Garner, supra, at 174 (“[I]f possible, every word and every provision is to be given effect.
None should be ignored. None should needlessly be given an interpretation that causes it to
duplicate another provision or to have no consequence.”). Accordingly, the Court concludes that
the
presumption
against
superfluity
also
supports
the
Court’s
interpretation
that
36 C.F.R. § 262.10 applies only to domesticated animals.
The structure and purpose of 36 C.F.R. § 261.2, 36 C.F.R. § 262.10, and 36 C.F.R. § 222.1
also affirm the Court’s reading. As discussed, the overall regulatory scheme at issue governs how
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the Forest Service manages private actions and property interests on national forests. See supra,
at 197-200, 217-221. The Petitioners propose interpreting certain provisions within that scheme
in a way that produces absurd results. The Petitioners argue that 36 C.F.R. § 262.10 applies to the
Gila Cows, because 36 C.F.R. § 261.2’s “unauthorized livestock” definition includes wild animals
that are biologically the same as the animals in 36 C.F.R. § 261.2. Petitioners’ Merits Brief at 821; Petitioners’ Merits Reply at 11-24. Using that interpretation, the Forest Service would have to
post, pursuant to 36 C.F.R. § 262.10(b), a notice of intent to impound a wild animal and wait
fifteen days before impounding that wild animal. See 36 C.F.R. § 262.10(b). After waiting for
fifteen days and impounding the wild animal, the Forest Service would then, pursuant to
36 C.F.R. § 262.10(d), post a notice of sale for the impounded wild animal and wait five more
days, during which time “the owner may redeem the [impounded] livestock” before the public sale
occurs. 36 C.F.R. § 262.10(e). See 36 C.F.R. § 262.10(d). 36 C.F.R. § 262.10 should not be
construed to require the Forest Service to pretend that a wild animal has an owner, wait fifteen
days before impounding it, and then wait another five days to allow an owner -- who does not
exist -- to redeem the impounded animal before the Forest Service sells or kills the animal. Such
a reading would produce an absurd result, and the fairer reading of the regulatory scheme creates
a more sensible outcome.
See Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575
(1982)(Rehnquist, J.)(“[I]nterpretations of a statute which would produce absurd results are to be
avoided if alternative interpretations consistent with the legislative purpose are available.”). In
sum, all indicators point in the same direction: 36 C.F.R. § 262.10 does not apply to the Gila Cows,
because the Gila Cows are not domesticated animals. Accordingly, the Court concludes that the
Aerial Shooting does not violate 36 C.F.R. § 262.10 and, thus, that the Respondents do not violate
the APA.
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IT IS ORDERED that: (i) proposed-intervenor Center for Biological Diversity’s Motion
to Intervene, filed February 28, 2023 (Doc. 26) is granted; (ii) the Center for Biological Diversity
may intervene; (iii) Petitioners Nelson Shirley, Humane Farming Association, and Allen Campbell
are dismissed from the First Cause of Action for Violation of Court Stipulation (“Count I”), see
Plaintiffs’ Complaint for Declaratory and Injunctive Relief ¶¶ 76-82, at 20-21 filed February 21,
2023 (Doc. 1)(“Complaint”); (iv) Petitioners New Mexico Cattle Growers Association and Spur
Lake Cattle Company have standing to pursue Count I; (v) Humane Farming Association is
dismissed from the Fourth Cause of Action for Failure to Prepare EA or EIS (APA and NEPA
Violation)(“Count IV”), see Complaint ¶¶ 97-113, at 24-29; (vi) the Cattle Growers, Spur Lake,
Nelson, and Campbell have standing to pursue Count IV; (vii) all Petitioners have standing to
pursue the Second Cause of Action for Acting in Excess of Statutory Authority (APA
Violation)(“Count II”), see Complaint ¶¶ 83-88, at 21-23, and the Third Cause of Action for
Acting in Violation of Regulation (APA Violation)(“Count III”), see Complaint ¶¶ 89-96, at 2324; (viii) the Respondents United States Forest Service, Animal and Plant Health Inspection
Service, Camille Howes, Tom Vilsack, Randy Moore, Michicko Martin, Henry Provencio, Janet
Bucknall, and Keith Wehner (“Respondents”) do not violate A Stipulation of Dismissal, filed June
30, 2022 (Doc. 39 in No. CIV 22-0086-JB/CG (D.N.M.)); (ix) the Respondents do not violate the
Administrative Procedure Act, 5 U.S.C. § 706, in shooting wild cows in the Gila Wilderness from
a low-flying helicopter (“Aerial Shooting”); (x) pursuant to 5 U.S.C. § 706(2), the Aerial Shooting
is not: (a) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(b) in excess of statutory jurisdiction, authority, or limitation, or short of statutory right; or
(c) without observance of procedure required by law; (xi) the Aerial Shooting does not violate the
National Environmental Policy Act, 42 U.S.C. §§ 4321-4370; (xii) the Plaintiffs’ Complaint for
- 238 -
Declaratory and Injunctive Relief, filed February 21, 2023 (Doc. 1), is dismissed with prejudice;
(xiii) the Respondents United States Forest Service’s and Animal and Plant Health Inspection
Service’s compliance with all applicable laws and regulations is affirmed; (xiv) the decision of the
administrative appeal is affirmed; and (xv) a separate, Final Judgment will be entered.
________________________________
UNITED STATES DISTRICT JUDGE
Counsel:
Deana M. Bennett
Spencer L. Edelman
Modrall, Sperling, Roehl, Harris & Sisk, PA
Albuquerque, New Mexico
-- and -Daniel D. McGuire
Pierson Ferdinand LLP
Coppell, Texas
Attorneys for Petitioners New Mexico Cattle Growers Association,
Spur Lake Cattle Company, and Nelson Shirley
Steven S. Scholl
Dixon Scholl Carrillo P.A.
Albuquerque, New Mexico
-- and -Daniel D. McGuire
Pierson Ferdinand LLP
Coppell, Texas
Attorneys for Petitioner Allen Campbell
- 239 -
Jessica L. Blome
Greenfire Law, PC
Berkeley, California
-- and -Gretchen Mary Elsner
Elsner Law & Policy, LLC
Santa Fe, New Mexico
-- and -Daniel D. McGuire
Pierson Ferdinand LLP
Coppell, Texas
Attorneys for Petitioner Humane Farming Association
Sean C. Duffy
Trial Attorney
United States Department of Justice
Washington, D.C.
--and-Andrew A. Smith
Senior Trial Attorney
Emma L. Hamilton
Trial Attorney
United States Department of Justice
Albuquerque, New Mexico
Attorneys for the Respondents
Marc Fink
Center for Biological Diversity
Duluth, Minnesota
--and--
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Brian Segee
Center for Biological Diversity
Ojai, California
--and-Douglas W. Wolf
Santa Fe, New Mexico
Attorneys for Intervenor Center for Biological Diversity
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