New Mexico Farm & Livestock Bureau, et al. v. United States Department of the Interior, et al.

Filing 76

MEMORANDUM OPINION AND ORDER by District Judge Kenneth J. Gonzales denying 69 Plaintiffs' petition to overturn the final agency rule and affirming the Service's final decision. (tah)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
NEW MEXICO FARM & LIVESTOCK BUREAU;
NEW MEXICO CATTLE GROWERS’
ASSOCIATION; and NEW MEXICO FEDERAL
LANDS COUNCIL,
Plaintiffs,
v.

No. 2:15-cv-00428-KG-CG

UNITED STATES DEPARTMENT OF THE
INTERIOR; SALLY JEWELL, in her official capacity
as Secretary of the United States Department of the
Interior; UNITED STATES FISH AND WILDLIFE
SERVICE; and DANIEL M. ASHE, in his official
capacity as Director of the United States Fish and
Wildlife Service,
Defendants,
CENTER FOR BIOLOGICAL DIVERSITY, INC. and
DEFENDERS OF WILDLIFE, INC.,
Defendant - Intervenors.

MEMORANDUM OPINION AND ORDER
This matter is before the Court on Plaintiffs New Mexico Farm & Livestock Bureau,
New Mexico Cattle Growers’ Association, and New Mexico Federal Lands Council’s (Plaintiffs)
petition for judicial review of the United States Fish and Wildlife Service’s (Service) final
agency action designating critical habitat for the jaguar in portions of Arizona and New Mexico.
See (Docs. 1, 69). Having reviewed the briefing and being fully advised, the Court denies
Plaintiffs’ petition for injunctive relief and affirms the Service’s final agency action.

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I.

Procedural History
On March 5, 2014, the Service published its final agency rule designating approximately

764,207 acres of land in New Mexico and Arizona as critical habitat for the jaguar under the
Endangered Species Act (ESA). 79 Fed. Red. 12,571. Plaintiffs initiated suit in this Court on
May 20, 2015, by filing a petition seeking declaratory judgment and injunctive relief. (Doc. 1).
On October 31, 2016, Plaintiffs filed their opening brief in support of their petition.1 (Doc. 69).
Defendants and Defendant-Intervenors each filed their own response on December 12 and
December 19, 2016, respectively. (Docs. 70, 71). Plaintiffs filed their reply on January 13,
2017, and submitted a notice of completed briefing on February 3, 2017. (Docs. 73, 75).
II.

Factual Background
The jaguar (Panthera oncus) is a large, territorial predatory cat with a camouflaged

appearance of either pale yellow, tan, or reddish yellow with prominent dark rosettes or blotches.
See R003476; 79 Fed. Reg. at 12,581. The core habitat, which most jaguar occupy, consists of
the tropical rain forests of Central and South America. See Administrative Record (AR)
F000373. However, at the northernmost portion of the jaguar’s range, a small population has
adapted to occupy more arid forest and open grass ecosystems. 79 Fed. Reg. at 12,573. This
includes a breeding population of resident jaguars in Sonora, Mexico as well as individual
jaguars in the southwestern United States. The ecosystems in the United States are considered
suitable only as a secondary habitat, which has little to no evidence of reproduction but which
may provide important dispersal habitat for the species. AR R003492-93.

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Plaintiff-Intervenors Arizona and New Mexico Coalition of Counties for Stable Economic
Growth, Jim Chilton, Pima Natural Resource Conservation District, and Southern Arizona
Cattlemen's Protective Association filed a notice of voluntary dismissal of their intervenor
complaint on October 27, 2016. See (Doc. 66).
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The Service listed the jaguar as endangered under the ESA in 1972.2 37 Fed. Reg. 6,476
(Mar. 30, 1972); AR F000001. The Service recognized in 1980 that it was “unlikely that a
jaguar will wander into the United States in the near future” and “even more unlikely that a
population could become established in the American southwest,” due to the fact that a jaguar
had not been seen in New Mexico since 1937. See 45 Fed. Reg. 49,845; 59 Fed. Reg. 35,674,
35,676 (July 13, 1994); AR F000004, AR F000009. However, between 1996 and 2006, two
jaguars were sighted in portions of Hidalgo County, New Mexico. AR F000379-80; 79 Fed. Reg.
at 12,594, 12,580-81.
On August 20, 2012, the Service solicited public comments on a proposed rule to
designate approximately 838,232 acres of land as jaguar critical habitat in New Mexico and
Arizona. 77 Fed. Reg. 50,214. The Service published its Final Rule on March 5, 2014,
designating approximately 764,207 acres of land in New Mexico and Arizona as critical habitat
for the jaguar. 79 Fed. Reg. 12,571. Of the six designated units, Units 5 and 6, the subjects of this
lawsuit, cover areas within the state of New Mexico and part of Arizona.
Unit 5 stretches across 102,724 acres in Hidalgo County, New Mexico, and Cochise
County, Arizona, including portions of the Coronado National Forest, and 13,138 acres of
privately owned land. 79 Fed. Reg. at 12,592. One jaguar track was photographed within this
Unit near the New Mexico-Arizona state border in 1995, and a jaguar was sighted in this Unit in
1996. Id.; 79 Fed. Reg. at 12,580, Table 1 (entries for 1995 and 1996). Unit 6 includes 7,714

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Intervenor-Defendants argue that, while the 1972 listing covered endangered populations in
Mexico and Central/South America, jaguars were not listed as endangered within the United
States until 1997. (Doc. 71) at 7. However, both Plaintiffs and Defendants agree with the
Service’s determination that the 1972 listing was intended to cover Jaguars across their entire
range, including the portion extending into the United States. See (Doc. 69) at 13; (Doc. 70) at
11; 79 Fed. Reg. at 12,578-82. Accordingly, the Court will treat 1972 as the relevant date of
listing.
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acres of entirely private property in Hidalgo County, New Mexico. 79 Fed. Reg. at 12,594, AR
F000394. One jaguar was photographed in this Unit in 2006. 79 Fed. Reg. at 12,580, Table 1
(entry for 2006), AR F000380.
III.

Legal Standard: Review of a Final Administrative Decision
Plaintiffs seek review of the Service’s final agency decision, asserting that the Service

exceeded its authority in designating thousands of acres of arid land in New Mexico as critical
habitat for the jaguar. Accordingly, Plaintiffs request declaratory judgment and injunctive relief
against Defendants for violating the ESA, 16 U.S.C. § 1531, et seq.; 50 C.F.R. § 424.12(e)3; and
the Administrative Procedure Act (APA), 5 U.S.C. § 551, et seq.
A. Administrative Procedure Act
Under the APA, a reviewing district court must set aside an agency action that (a) fails to
meet statutory, procedural, or constitutional requirements, or (b) is arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law. 5 U.S.C. § 706(2)(A)-(D). The Court
possesses jurisdiction over an “[a]gency action made reviewable by statute and final agency
action for which there is no other adequate remedy in a court are subject to judicial review.” 5
U.S.C. § 704. This review functions as an appeal and should be based on the administrative
record before the agency at the time the agency made its decision. 5 U.S.C. § 706(2)(A); see
also Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1579-80 (10th Cir. 1994).
(determining that reviewing court may not rely on evidence outside the record under APA). An
agency’s decision is entitled to a “presumption of validity,” and will be upheld if the agency
considered the relevant factors and provided a reasoned basis for its decision. Citizens’ Comm.

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This federal regulation details the authority and criteria used by the Secretary in designating
critical habitat for an endangered species under the ESA.
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to Save Our Canyons v. Krueger, 513 F.3d 1169, 1176 (10th Cir. 2008); Colo. Envtl. Coal. v.
Dombeck, 185 F.3d 1162, 1167 (10th Cir. 1999).
B. The Endangered Species Act
The ESA was enacted “to provide a means whereby the ecosystems upon which
endangered species and threatened species depend may be conserved, [and] to provide a program
for the conservation” of such species. 16 U.S.C. § 1531(b); see N.M. Cattle Growers Ass’n v.
U.S. Fish and Wildlife Serv., 248 F.3d 1277, 1282 (10th Cir. 2001) (same). The first step in
protecting a species is for the Secretary of the Interior (Secretary), who has responsibility to list a
species in need of protection as either “threatened” or “endangered.” 16 U.S.C. § 1533(a). The
ESA also requires the Secretary to designate critical habitat for all listed species, to the extent
prudent and determinable, as a means of conserving the species. 16 U.S.C. § 1533(a)(3)(A).
The designation must be based on “the best scientific data available” and may only be made after
the Secretary considers and weighs the cost of all relevant impacts, including economic impacts.
16 U.S.C. 1533(b)(2); 50 C.F.R. § 424.12(a). Under this standard, the Secretary may designate
both occupied and unoccupied territories as critical habitat, but the standard imposes “a more
onerous procedure on the designation of unoccupied areas by requiring the Secretary to make a
showing that unoccupied areas are essential for the conservation of the species.” Ariz. Cattle
Growers’ Ass’n v. Salazar, 606 F.3d 1160, 1163 (9th Cir. 2010); see 16 U.S.C. § 1532(5)(A).
IV.

Standing
Before a federal court may declare legal rights and grant requested relief, the party

invoking the court’s authority must demonstrate all elements of Article III standing. Valley
Forge Christian Coll. v. Americans United for Separation of Church & State, 454 U.S. 464, 471
(1982). Article III standing is established by showing an injury in fact which is fairly traceable
to defendants with a likelihood that the requested relief will redress the alleged injury. See Steel
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Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102-03 (1998); Lujan v. Defs. of Wildlife, 504
U.S. 555, 560 (1992) (explaining requirements for justiciable case and controversy). “[A]n
association has standing to bring suit on behalf of its members when: (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). Standing may be established by affidavits
demonstrating particularized injury to individual members of an organization. See, e.g.,
Riverkeeper v. Taylor Energy Co., LLC, 113 F. Supp. 3d 870, 875 (E.D. La. 2015) (finding
evidence of associational standing based on affidavits of individual organization members).
Here, each of the Plaintiff organizations assert standing on the basis that individual
members have suffered or will suffer an injury in fact from the Service’s final action declaring
Units 5 and 6 as critical habitat for the jaguar. In support of this assertion, Plaintiffs have
provided sworn declarations from Chad Smith, the CEO of New Mexico Farm & Livestock
Bureau, and Caren Cowan, the Executive Director of Cattle Growers and an Authorized
Representative of the New Mexico Federal Lands Council. (Doc. 69-2); (Doc. 69-3). These
declarations state that members of each organization are property owners, cattle ranchers, and
business operators within Units 5 and 6 who will be subject to costly and time consuming
compliance procedures as a result of the regulatory action. (Doc. 69-2) at 2-3; (Doc. 69-3) at 2.
Further, Plaintiffs have provided specific declarations of individual members who claim
personal injury in fact as a result of the Service’s designation of Units 5 and 6 as critical habitat
for the jaguar. Meira Gault, a member of two of the Plaintiff organizations, is a trustee of a
revocable trust that owns Midbar Ranch and property adjacent to land designated as jaguar

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critical habitat. (Doc. 73-2). Levi Klump, a member of all three Plaintiff organizations, owns a
ranch and holds a federal grazing permit on federal land designated as jaguar critical habitat.
(Doc. 73-1). According to their declarations, the renewal of federal grazing permits will be
subject to consultation under the ESA, as will any future planned improvements to their land,
such as corrals, stock ponds, additional fencing or other structures. Id.
The threat of direct regulation constitutes sufficient harm to confer standing to challenge
government action. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561-62 (1992) (holding
that standing to challenge government action depends upon whether plaintiff is himself object of
regulation). Further, the ESA contains specific provisions allowing any party to challenge the
manner in which the ESA is enforced, even if plaintiffs seek to limit the scope of the regulation.
See 16 U.S.C. § 1540 (g); Bennett v. Spear, 520 U.S. 154, 166 (1997) (allowing ranch operators
to bring ESA citizen-suit even though they sought to prevent regulation). Accordingly, the
declarations describe with adequate specificity the injuries of individual members necessary to
confer associate standing to Plaintiff organizations. The Court, thus, turns to the merits of
Plaintiffs’ petition.
V.

Analysis: Designation of Critical Habitat
A. Whether Jaguars Occupied Units 5 and 6
The first step of the review is to determine whether the designated critical habitat was

occupied by the species which the designation was meant to protect. 16 U.S.C. § 1532(5)(A).
This inquiry focuses on whether the habitat was occupied at the time of listing. See 16 U.S.C. §
1532(5)(A)(i); 79 Fed. Reg. at 12,581. As an initial matter, the parties disagree as to the
definition of the term “occupied” under the ESA. Plaintiffs contend that the mere presence of
solitary, individual jaguars does not render an area occupied without evidence of a resident
population. (Doc. 69) at 11, 22; (Doc. 73) at 19. By contrast, the Service asserts that the term
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“occupied” varies on a case-by-case basis and, in this instance, is satisfied if the designated area
is one where jaguar are likely to be present. (Doc. 70) at 23-24, 27. The term “occupied” as used
in the ESA has been found to be ambiguous and not plainly defined thus granting deference to
the Service’s definition of the term. See Babbitt v. Sweet Home Chapter of Cmtys. for a Great
Or., 515 U.S. 687, 708 (1995); Cape Hatteras Access Pres. All. v. U.S. Dep’t of Interior, 344 F.
Supp. 2d 108, 119-20 (D.D.C. 2004) (applying Chevron deference to Service definition of
“occupied” habitat). Further, Courts have upheld the Service’s definition of “occupied” as an
area where a species is likely to be found. See Ariz. Cattle Growers’ Ass’n, 606 F.3d at 1165,
1167 (holding that Service has “authority to designate as ‘occupied’ areas that [a species] uses
with sufficient regularity that it is likely to be present during any reasonable span of time” but
“may not determine that areas unused by [a species] are occupied merely because those areas are
suitable for future occupancy”). Hence, a designated area may be considered “occupied” if
individual members of the protected species are likely to be found there, whether or not the area
holds a resident breeding population.
As noted above, the Service’s listing of jaguars under the ESA occurred in 1972. The
Service used the jaguar’s ten-year average lifespan to conclude that the observance of a jaguar
any time within a ten-year period of the designation would constitute evidence that the habitat
was occupied at the time of listing. 79 Fed. Reg. at 12,581, AR 000381. However, the only
evidence in the record of jaguar sightings in the relevant areas are: one historical sighting in Unit
5; one sighting in Unit 5 in 1996; and one sighting in Unit 6 in 2006. (AR R002258-60, 00226364 (Robinson et al., 2006 report detailing historical jaguar observations in New Mexico); (AR
F000380 and 79 Fed. Reg. at 12,594, 12,581, citing 1996 jaguar sighting in Peloncillo Mountains
located in Unit 5); (AR F000379 and 79 Fed. Reg. at 12,594, 12,580, citing 2006 sighting in

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“north end of San Luis Mountains” in Unit 6). None of these sightings occurred within a tenyear period before or after the 1972 jaguar listing date under the ESA. Despite this lack of direct
evidence, the Service proffered that, given the lack of survey effort around the time of listing, as
well as the difficulty in detecting jaguars generally, lack of detection in a particular area did not
indicate that jaguars were necessarily absent from a particular area at the time of listing. 79 Fed.
Reg. at 12,582. Nevertheless, the Service explicitly acknowledged its uncertainty regarding
whether Units 5 and 6 were “occupied.” See (Doc. 70) at 30. Indeed, the Service expressed
skepticism at such occupation shortly after the listing, concluding that it was unlikely that a
jaguar population would become established in the American southwest or even that individual
transitory jaguars “will wander into the United States in the near future.” 45 Fed. Reg. 49,845;
AR 000004. This opinion was based on the fact that, between 1937 and 1996, there were no
jaguar sightings anywhere within New Mexico. See 59 Fed. Reg. 35,674, 35,676 (July 13,
1994); AR F000009. Despite the deference owed to the Service on matters of scientific
expertise, the reviewing court cannot simply accept the truism that a particular species is elusive
by nature as a substitute for concrete evidence to conclude that the relevant habitat was occupied
at the time of listing. See, e.g, Ariz. Cattle Growers’ Ass’n v. U.S. Fish & Wildlife, Bureau of
Land Mgmt., 273 F.3d 1229, 1244 (9th Cir. 2001) (finding arbitrary and capricious Service’s
determination that area was occupied based on speculation rather than direct evidence of species’
presence). Consequently, the Court must turn to the standard for determining whether an
unoccupied area may nevertheless be designated a critical habitat.
B. Whether Unoccupied Units Are Essential to Conservation
As noted above, the ESA allows designation of a critical habitat even if the area is not
occupied by the listed species if the land is considered “essential for the conservation of the

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species.” Ariz. Cattle Growers’ Ass’n, 606 F.3d at 1163. This critical habitat designation can
apply to the protection of a species’ population which occupies the area at present, even if the
area was considered unoccupied at the time of listing. See Otay Mesa Prop., L.P. v. United
States Dep't of the Interior, 144 F. Supp. 3d 35, 60 (D.D.C. 2015) (upholding critical habitat
determination for stock pond which supports fairy shrimp reproduction). However, with limited
exceptions, a critical habitat designation may not include the entire geographical area which can
be occupied by the threatened or endangered species. 16 U.S.C. § 1532(5)(c).
Here, Defendants contend that, even in the event that the designated area was unoccupied
at the time of listing, that area remains essential to the conservation of the jaguar and, thus,
constitutes a critical habitat. (Doc. 70) at 30-34. Defendants concede that the biomes of the
designated New Mexico Units are not a part of the jaguars’ core habitat and are suitable only as
secondary habitat, which has little to no evidence of reproduction but can provide important
dispersal habitat for the jaguar. Id. at 31. However, Defendants contend that the preservation of
secondary habitats as part of the conservation plan contributes to the jaguars’ persistence by
supporting range expansion and genetic exchange. Id. at 31-32. Specifically, Defendants claim
that populations at the outer periphery of the jaguars’ range possess genetic and demographic
diversity which allow them to inhabit the distinct arid environments of its secondary habitat, a
key component for adaptability which ensures the species’ survival. Id. In essence, Defendants
assert that the small populations capable of inhabiting the arid environments of northern Mexico
and the American southwest are critical to the species survival precisely because they are
adapted to exist outside the jaguars’ core habitat. Id. at 33-34.
In support of its critical habitat designation, the Service relied on jaguar sightings in 1996
and 2006 to demonstrate that Units 5 and 6 are habitable and presently in use by the species. See

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AR F000389; 79 Fed. Reg. at 12,594, 12,580-81. Further, the Service relied on the scientific
opinion of a team of experts contained in the jaguar Recovery Outline to determine that
protection of core habitat is insufficient to the conservation of the species and to explain why
protection of the small populations located in the secondary habitat on the edge of the jaguars’
range was essential to the adaptability (and thus conservation) of the species. See 79 Fed. Reg. at
12,573; AR F000373-74; AR R002484 (conserving jaguars requires “at least, saving populations
of the species in all the significantly different ecological systems in which they occur. . . it is not
sufficient to pursue jaguar conservation efforts only in tropical forests”). Indeed, federal Courts
have previously upheld the determination of critical habitat based on a similar rationale. See,
e.g., Fisher v. Salazar, 656 F. Supp. 2d 1357, 1367 (N.D. Fla. 2009) (upholding designation of
critical habitat for area which allows dispersal movements and maintains genetic diversity in
isolated portions of species’ range).
Plaintiffs contend that this critical habitat designation serves as an overly-extensive
buffer. Plaintiffs further contend that the Service’s ends could be achieved simply by preserving
the breeding population 130 miles south of the United States-Mexico border, which has adapted
to surviving in an arid ecosystem similar to the Units in the American southwest. (Doc. 69) at
21; see also (Doc. 71) at 6 (describing similar ecological conditions in Sonora, Mexico). While
this breeding population arguably plays a larger part in the species’ adaptability to secondary
habitats, it is not the reviewing Court’s role to reevaluate de novo the importance of the
designated critical habitat. Rather, the Service’s designation of Units 5 and 6 is based on analysis
of relevant data and rationally connected to evidence demonstrating the importance of preserving
populations in the secondary habitat at the edge of the jaguars’ northern range. This Court
concludes the decision is neither arbitrary nor capricious and defers to the Service’s scientific

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determination that critical habitat designation in the American southwest is critical for range
connectivity to adjacent habitable land in Mexico. See AR R002441-82; AR R002430-40; (Doc.
70) at 39-40.
C. Whether the Service Failed to Make a Threshold Determination
Alternatively, Plaintiffs argue that the Service’s rationale for designating Units 5 and 6 as
critical habitat is incomplete because it fails to identify the point at which jaguars will no longer
be considered a threatened species in need of regulatory protections. (Doc. 69) at 25-27.
Plaintiffs contend that, as a result of this failure, the Service’s final rule is lacking a threshold
determination necessary to designate critical habitat under the ESA. Id.
The ESA defines critical habitat as those areas “essential to the conservation of the
species” and describes conservation as use of methods to bring a species to “the point” at which
protections are no longer required. 16 U.S.C. §§ 1532(3), 1532(5)(A)(i)-(ii). Plaintiff misread
the ESA. Indeed, the ESA does not impose a threshold requirement that the Service identify at
the time of critical-habitat designation a specific viable population size and minimum habitat
necessary to sustain that population. See, e.g., Markle Interests, L.L.C. v. U.S. Fish & Wildlife
Serv., 827 F. 3d 452, 469 (5th Cir. 2016) (“The ESA’s critical-habitat provisions do not require
the Service to know when a protected species will be conserved as a result of the designation”).
Rather, the statute instructs the Secretary to determine the point at which a species is conserved
during the development and implementation of a recovery plan, an action separate from the
critical habitat designation phase. See 16 U.S.C. § 1533(f)(1)(B)(ii). Because the statute does
not require knowing when a species is conserved during the critical habitat designation phase,
the final rule’s exclusion of this analysis does not invalidate the designation of Units 5 and 6 as
critical habitat for the jaguar.

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VI.

Conclusion
For the foregoing reasons, the Court finds that the Service’s determination that the

designated areas in Units 5 and 6 were essential to the conservation of the jaguar species was not
arbitrary and capricious under the APA. Consequently, the Court affirms the Service’s
determination to designate Units 5 and 6 as critical habitat for the jaguar.
IT IS THEREFORE ORDERED that Plaintiffs’ petition to overturn the final agency rule
(Doc. 69) is DENIED and the Service’s final decision is AFFIRMED.

_____________________________________
UNITED STATES DISTRICT JUDGE

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