Humane Society of the United States et al v. Kienzle et al

Filing 28

ORDER by Magistrate Judge Lourdes A. Martinez GRANTING in part and DENYING in part 17 Motion to Dismiss. (atc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

THE HUMANE SOCIETY OF THE
UNITED STATES, ANIMAL PROTECTION
OF NEW MEXICO, JEAN OSSORIO, and
PETER OSSORIO,
Plaintiffs,

vs.

No. CIV-16-0724 LAM-SMV

PAUL M. KIENZLE III, WILLIAM
MONTOYA, ROBERT ESPINOZA SR.,
RALPH RAMOS, BOB RICKLEFS,
ELIZABETH ATKINSON RYAN, and
THOMAS SALOPEK, in their official
capacities as Commissioners of the New
Mexico State Game Commission; and
ALEXANDRA SANDOVAL, in her official
capacity as Director of the New Mexico
Department of Game and Fish,
Defendants.

MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Defendants’ Motion to Dismiss Plaintiffs’
Complaint and Memorandum in Support Thereof (Doc. 17), filed July 26, 2016.

On

August 23, 2016, Plaintiffs filed Plaintiffs’ Response Opposing Defendants’ Motion to Dismiss
(Doc. 24), and on September 8, 2016 Defendants filed Reply in Support of Defendants’ Motion
to Dismiss (Doc. 25). The parties have consented to the undersigned conducting dispositive
proceedings in this matter. [Docs. 20 and 21]. Having considered the motion, response, reply,
record of the case, and relevant law, the Court concludes that the motion shall be DENIED as to

Counts One and Two of the Complaint, and shall be GRANTED as to Count Three of the
Complaint.

I. Background
The Humane Society of the United States (hereinafter “HSUS”), Animal Protection of
New Mexico (hereinafter “APNM” and, collectively with HSUS, “Plaintiff Organizations”),
Peter Ossorio, and Jean Ossorio filed this action against Defendants Kienzle, Montoya, Espinoza,
Ramos, Ricklefs, Ryan, and Salopek, in their official capacities as Commissioners of the
New Mexico State Game Commission (hereinafter, collectively, “the Commission”) and against
Defendant Sandoval, in her official capacity as Director of the New Mexico Department of
Game and Fish (hereinafter “the Director”). [Doc. 1 at 10-11, ¶¶ 32-41]. Plaintiffs claim that
Defendants’ decision to permit cougar hunting in areas of the state of New Mexico that are
within reintroduction zones for Mexican gray wolves, as well as within critical habitat area for
jaguars,1 constitutes a violation of the Endangered Species Act, 16 U.S.C. §§ 1531-1544
(hereinafter the “ESA”) and federal regulations enacted pursuant thereto.
The ESA was enacted in 1973, and has been described as “the most comprehensive
legislation for the preservation of endangered species ever enacted by any nation.” Tennessee
Valley Authority v. Hill, 437 U.S. 153, 180 (1978). The ESA provides three protective categories
of wildlife species: “endangered” (16 U.S.C. § 1532(6)), “threatened” (16 U.S.C. § 1532(20)),

1

All of the parties refer to the expansion of the areas in which hunters may trap cougar as the “Cougar
Rule” so, for clarity, the Court will, as well. However, it should be noted that a “Cougar Rule” (see N.M. Admin.
Code 19.31.11) detailing when, where, and how cougar may lawfully be hunted in this state, was in effect prior to
Defendants’ conduct of which Plaintiffs complain. It is actually Defendants’ amendment of that rule, which
expanded the areas in which cougar may be hunted, that is alleged to be actionable. See 2016 N.M. Reg.
Text 419886 (“The State Game Commission at its meeting on 8-27-2015, repealed its rule 19.31.11 NMAC, Bear
and Cougar, filed 2-22-2011 and replaced it with 19.31.11 NMAC, Bear and Cougar, effective 4-1-2016”). See also
“Cougar trapping” (April 11, 2016), http://www.wildlife.state.nm.us/new-hunting-fishing-rules-take-effect-thismonth/ (site last visited January 6, 2017).

2

and “experimental populations,” designated as either “essential” or “nonessential,”
(16 U.S.C. § 1539(j)).2
A. The Mexican Wolf
The Mexican wolf “is the smallest, southern-most occurring, rarest, and most genetically
distinct subspecies of gray wolf in North America.”

See U.S. Fish and Wildlife Service,

Southwest Region, “The Mexican Wolf Recovery Program,” General Description, available at
https://www.fws.gov/southwest/es/mexicanwolf/natural_history.cfm

(site

last

visited

January 6, 2017). It is considered to be “one of the nation’s rarest mammals.” See U.S. Fish and
Wildlife Service, Southwest Region, News Release dated January 12, 2015, available at
https://www.fws.gov/news/ShowNews.cfm?ref=service-finalizes-changes-to-mexican-wolfexperimental-population-rule&_ID=34787 (site last visited January 6, 2017). The Mexican wolf
has been listed as endangered under the ESA since 1976.3 It is native to the forested and
mountainous terrain of the American Southwest and Mexico, where it once numbered in the
thousands. See Endangered and Threatened Wildlife and Plants; Establishment of a Nonessential
Experimental Population of the Mexican Gray Wolf in Arizona and New Mexico, 63 Fed.
Reg. 1752-01, 1752 (Jan. 12, 1998) (to be codified at 50 C.F.R. pt. 17). However, eradication
efforts taken, in part, for the benefit of domestic livestock, resulted in near extinction of the

2

Certain provisions of the ESA have been discussed extensively in both case law and legal publications.
In particular, § 1538, which is the enforcement provision of the Act, and § 1539(j), which describes experimental
populations, are frequently referred to simply as “Section 9” and “Section 10(j)” of the ESA, respectively.
Therefore, for clarity, this Court will refer to those provisions as § 9 and § 10(j).
3

The 1976 listing of the Mexican wolf was superseded in 1978 by the listing as endangered of the entire
gray wolf species. See Endangered and Threatened Wildlife and Plants; Revision to the Regulations for the
Nonessential Experimental Population of the Mexican Wolf, 80 Fed. Reg. 2512, 2513 (Jan. 7, 2015) (to be codified
at 50 C.F.R. pt. 17). In 2015, following federal delisting of the gray wolf, the Mexican gray wolf was relisted as an
endangered subspecies. Id. at 2512.

3

subspecies. See 63 Fed. Reg. 1752-01 at 1752-1753. In 1982, the United States and Mexico
adopted the Mexican Wolf Recovery Plan, with the goal of ensuring the wolves’ survival
through a captive breeding program from which a self-sustaining population could be reestablished. Id. at 1753. Five wild Mexican wolves were captured in Mexico to initiate the
captive breeding program, and two populations of wolves already in captivity were determined to
be pure Mexican wolves, as well. Id. The wild Mexican wolf was considered extinct in the
United States by 1998, when the U.S. Fish and Wildlife Service (hereinafter “FWS”) created a
rule, pursuant to ESA § 10(j),4 for the release of an experimental nonessential (ENE) population
of Mexican wolves into specifically designated areas of Arizona and New Mexico that were
within the historic range of the subspecies.

See 63 Fed. Reg. 1752-01 at 1753-1754

and 1763-1772. Because it is designated as “nonessential,”5 the Mexican wolf experimental
population is not treated by the ESA as “endangered.” See § 10(j)(2)(C)(i). Instead, wolves that
have been released into the Mexican Wolf Experimental Population Area (hereinafter “wolf
recovery area”) are treated “as a species proposed to be listed under [16 U.S.C.] section 1533.”6

4

ESA § 10(j) defines “experimental populations,” authorizes their release, and directs the Secretary [of the
Interior or of Commerce (see 16 U.S.C. § 1532(16))] to identify such populations by regulation, and to determine
whether or not they are “essential to the continued existence of an endangered or a threatened species.”
§ 10(j)(2)(B). Special rules relating to vertebrate experimental populations are codified at 50 C.F.R. Pt. 17,
Subpt. H, § 17.84.
5

Designation of the Mexican wolf experimental population as “nonessential” may appear to be at odds
with the Mexican wolf’s extinction in North America in 1998. However, both Congress and the FWS consider that
“an essential population will be a special case and not the general rule.” 80 Fed. Reg. 2512 at 2550. Moreover,
when the ENE wolf population was established in 1998, the FWS specifically found that “even if the entire
experimental [wolf] population died, this would not appreciably reduce the prospects for future survival of the
subspecies in the wild,” because “the captive population could produce more surplus wolves and future
reintroductions still would be feasible.” Id.
6

“[N]onessential experimental populations located outside national wildlife refuge or national park lands
are treated as if they are proposed for listing. This means that Federal agencies are under an obligation to confer, as
opposed to consult (required for a listed species), on any actions authorized, funded, or carried out by them that are
likely to jeopardize the continued existence of the species. Nonessential experimental populations located on
national wildlife refuge or national park lands are treated as threatened, and formal consultation may be required.”

4

Id.

Thus, designation of an experimental population as “nonessential” allows for greater

flexibility in species management. 63 Fed. Reg. 1752-01 at 1752.
The rule that specifically governs the Mexican wolf population in Arizona and
New Mexico (hereinafter “special wolf rule”) is codified at 50 C.F.R. § 17.84(k).7 The special
wolf rule prohibits “take” of any Mexican wolf in the ENE population, except as specifically
provided, and incorporates the ESA’s definition of “take,” which is “to harass, harm, pursue,
hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct”
(16 U.S.C. § 1532(19)), as well.

50 C.F.R. § 17.84(k)(3), (5).

Unlike the ESA § 9 take

provision, however, the special wolf rule specifically allows for certain “unintentional” takes of
Mexican

wolves

that

§ 17.84(k)(7)(viii)(A).8

occur

during

“an

otherwise

lawful

activity.”

50

C.F.R.

In addition, the 2015 amendment to the special wolf rule added

provisions that more fully define “due care” under the rule:
Taking a Mexican wolf with a trap, snare, or other type of capture device within
occupied Mexican wolf range is prohibited (except as authorized in paragraph
(k)(7)(iv) of this section) and will not be considered unintentional take, unless due
care was exercised to avoid injury or death to a wolf. With regard to trapping
activities, due care includes:

________________________
63 Fed. Reg. 1752-01 at 1752 (emphasis added). Therefore, to the extent that there are national wildlife refuges or
national park lands within the wolf recovery area, the ENE wolves will be treated as “threatened” when they are
located there. Id.
7

The special wolf rule was amended in 2015 in order to improve the effectiveness of the project by
extending the boundaries of the wolf recovery area, modifying some of the wolf management provisions, and
issuance of permits that allow otherwise prohibited acts that are “necessary for the establishment and maintenance of
experimental populations,” as provided in ESA § 10(a)(1)(A). See 80 Fed. Reg. 2512 at 2517.
8

The special wolf rule defines “unintentional take” as “the take of a Mexican wolf by any person if the take
is unintentional and occurs while engaging in an otherwise lawful activity, occurs despite the use of due care, is
coincidental to an otherwise lawful activity, and is not done on purpose.” 50 C.F.R. § 17.84(k)(3). Both poisoning
and shooting of Mexican wolves are specifically excluded from the definition of “unintentional take.”
50 C.F.R. § 17.84(k)(3) and (7)(viii)(A).

5

(A) Following the regulations, proclamations, recommendations,
guidelines, and/or laws within the State or tribal trust lands where the
trapping takes place.
(B) Modifying or using appropriately sized traps, chains, drags, and stakes
that provide a reasonable expectation that the wolf will be prevented from
either breaking the chain or escaping with the trap on the wolf, or using
sufficiently small traps (less than or equal to a Victor #2 trap) that allow a
reasonable expectation that the wolf will either immediately pull free from
the trap or span the jaw spread when stepping on the trap.
50 C.F.R. § 17.84(k)(5)(iii) (emphasis added).
In their Complaint, Plaintiffs contend that violations of wildlife regulations promulgated
by the Secretary of the Interior, such as the special wolf rule, also constitute violations of
§ 9(a)(1)(G) of the ESA. See [Doc. 1 at 22, ¶ 99]. Plaintiffs’ first claim is that Defendants will
be allowing trapping activities in the recovery area of the ENE Mexican wolf population that will
result in takes of Mexican wolves without due care, both because it is impossible to modify a
trap that will catch a cougar but not catch a wolf, and because Defendants have not imposed any
special trap rules for the cougar hunt. Id. at 17-18, ¶¶ 68-70; 19-20, ¶¶ 81-87. Therefore, in
Count One of the Complaint, Plaintiffs allege that the Defendants’ allowance of cougar hunting
within the Mexican wolf recovery area will result in violations of both the special wolf rule and
§ 9 of the ESA. Id. at 22-23, ¶¶ 98-105. In Count Two, Plaintiffs allege that Defendants’
allowance of cougar hunting outside of the Mexican wolf recovery area will directly violate § 9
of the ESA, because, when outside the wolf recovery area, Mexican wolves receive the full range
of ESA protections and are not subject to the take exceptions in the special wolf rule. Id. at 23,
¶¶ 106-110 (stating at ¶ 108 that “Mexican wolves located outside the [wolf recovery area] are
treated as endangered species”).

6

B. The Jaguar
The jaguar is the largest cat in the Western Hemisphere.9 The jaguar’s historical range
within the United States includes portions of New Mexico. See Endangered and Threatened
Wildlife and Plants; Final Rule To Extend Endangered Status for the Jaguar in the United States,
62 Fed. Reg. 39147-01, 39147 (July 22, 1997) (to be codified at 50 C.F.R. pt. 17). In 1972, the
jaguar was listed in the United States as endangered foreign wildlife in Mexico and Central and
South America. Id. at 39148. In the 1970s through the mid-1990s, efforts were made to list the
jaguar in the United States. Id. at 39148-49. However, the jaguar was not listed as endangered
under the ESA until 1997. Id. at 39156-57. At that time, there was “no known resident
population of jaguars in the United States, though they still occur[red] in northern Mexico.” Id.
at 39147. There are currently no known breeding populations within the United States, though
individual jaguars from Mexico may occasionally cross into Texas, New Mexico, and Arizona.10
In 2014, the FWS included two small areas in southwest New Mexico as part of a larger, newly
designated, jaguar critical habitat.11 The Court notes that the designation of the jaguar’s critical
habitat in New Mexico is currently being challenged in New Mexico Farm and Livestock Bureau,
et al. v. United States Dept. of the Interior, et al., No. CIV-15-428 KG/CEG.
Count Three of Plaintiffs’ Complaint alleges that Defendants “will cause the unlawful
take of jaguars to be committed by authorizing cougar trapping within federally designated

9

See JAGUAR (Panthera onca) Status and Listing, General Species Information, available at https://www.f
ws.gov/southwest/es/arizona/Jaguar.htm (site last visited January 6, 2017).
10

See JAGUAR General Species Information, available at https://www.fws.gov/southwest/es/arizona/Jaguar
.htm (site last visited January 6, 2017).
11

See map titled “General Location of Critical Habitat for Jaguar, Units: 5 and 6” at 50 C.F.R.
§ 17.95-a-Mammals, Jaguar. See also, U.S. Fish and Wildlife Service, Southwest Region, News Release dated
March 4, 2014, available at https://www.fws.gov/southwest/es/arizona/Jaguar.htm (site last visited January 6, 2017).

7

jaguar critical habitat.” [Doc. 1 at 23-24, ¶114]. Plaintiffs further allege that “substantial
portions of designated jaguar critical habitat are held privately or by the New Mexico State Land
Trust, and thus will be open to cougar trapping using leg-hold traps,” which has been authorized
by Defendants (id. at 21, ¶93), and that “leg-hold traps of the size and type used for trapping
cougars are highly likely to also trap jaguars because of similarities in size, weight, and
physiology between the species” (id. ¶95).

II. Analysis
Defendants’ motion to dismiss seeks dismissal of all counts of Plaintiffs’ Complaint on
the ground that Plaintiffs lack standing and, therefore, this Court is without subject-matter
jurisdiction over the action. See [Doc. 17 at 2 and 9-18]. Additionally, Defendants assert that
the doctrine of legislative immunity bars Plaintiffs’ claims against the individual members of the
New Mexico State Game Commission. Id. at 2 and 18-21. Finally, Defendants contend that
Plaintiffs fail to state a claim as a matter of law as to any of their claims and, therefore, that their
Complaint should be dismissed pursuant to Fed. R. Civ. P. 12(b)(1) and (6).

Id. at 2.

Specifically, Defendants contend that Plaintiffs fail to state a claim as to Count One because:
(1) in the wolf recovery area, “the ‘due care’ standard applies to the act of trapping, and not to
the regulation of trapping;” and (2) because “a trapper can exercise due care when setting traps
for cougar, and the Complaint does not contain factual allegations to the contrary.” Id. at 2; see
also id. at 21-24. With respect to Count Two, Defendants assert that Plaintiffs have not alleged
facts that support their claim that trapping outside of the wolf recovery area “has resulted or will
imminently result in the illegal take of Mexican wolves.” Id. at 2; see also id. at 24-25. With
respect to Count Three, Defendants argue that Plaintiffs’ claims regarding illegal take of jaguars

8

are “only conclusory allegations unsupported by the requisite factual allegations.” Id. at 2; see
also id. at 26.
In response, Plaintiffs contend that the allegations of their Complaint sufficiently
establish all three elements of Article III standing, which are injury-in-fact, causation, and
redressability (see Doc. 24 at 6), and that they also adequately state facts in support of each of
their three claims for relief (id. at 15). Plaintiffs deny that the individual members of the
New Mexico State Game Commission are protected by legislative immunity, and contend that
those parties’ challenged actions “are in the nature of an administrative, rather than legislative,
activity.” Id. at 25-26.
In reply, Defendants argue that Plaintiffs lack standing to bring their Count One claim
because, in the wolf recovery area, unintentional harm that occurs due to trapping where “due
care” is exercised does not qualify as a “take.” [Doc. 25 at 4.]. Defendants further contend that
Plaintiffs’ Count One claims are “speculative” and “identical to the baseless allegation advanced
by plaintiffs in WildEarth Guardians v. Lane, 2012 WL 6019306 (D. N.M. Dec. 4, 2012)
(unpublished) and rejected by the court due to a paucity of evidence.” Id. at 6. Defendants
assert that Plaintiffs lack standing to bring their Count Two claim because they fail to allege facts
sufficient to establish actual or imminent injury. Id. at 8 (stating “Plaintiffs do not allege that
any trapping or snaring of Mexican wolves has ever occurred outside the [wolf recovery
area].”). Defendants argue that Plaintiffs lack standing as to Count Three because standing under
the ESA requires injury-in-fact that is connected to the species at issue, and Plaintiffs fail to
make such allegations with respect to jaguars. Id. at 9-11.12 Defendants maintain that Plaintiffs’

12

Also in their reply, Defendants point out that Plaintiffs’ inclusion of several declarations in support of
their standing claims is inconsistent with their argument “that only allegations within the four corners of [the]

9

claims against members of the New Mexico State Game Commission named as Defendants in
their individual capacities are barred by the doctrine of legislative immunity, noting that the act
challenged by Plaintiffs is the promulgation of the Cougar Rule, which is a legislative act. Id.
at 11-12.
“[W]hen ruling on a defendant’s motion to dismiss, a judge must accept as true all of the
factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007).
“When there are well-pleaded factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009). Thus,
[u]nder Federal Rule of Civil Procedure 8(a)(2), a Complaint must contain a
“short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2). This obligation “requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will
not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted).
To survive dismissal, the factual allegations must be “plausible” and “must be
enough to raise a right to relief above the speculative level.” Id. at 555. See also
Edwards v. Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010). This requires
“more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).
Florida Panthers v. Collier County, Florida, 2016 WL 1394328, at *13 (M.D. Fla. Apr. 8, 2016)
(unpublished).
A. Plaintiffs’ Standing
Defendants argue that Plaintiffs’ have failed “to allege facts substantiating a current or
imminent injury, and that Defendants’ actions are the cause of Plaintiffs’ claimed injury,” and
that Plaintiffs have, therefore, failed to establish their standing to make their claims. [Doc. 17
________________________
complaint may be considered.” [Doc. 25 at 2]. See also [Doc. 24 at 6]. The Court need not determine the effect of
Plaintiffs’ submission of declarations (Doc. 24-1 at 1-42) with their response brief, however, because the
declarations submitted are not considered by the Court with respect to Defendant’s motion to dismiss.

10

at 13].

Specifically, with respect to Count One of the Complaint, Defendants assert that

Plaintiffs “cannot establish that Defendants’ enactment of the Cougar Rule will cause the illegal
take of Mexican wolves within the [wolf recovery area].” Id. at 14. With respect to Count Two,
Defendants argue that Plaintiffs’ allegation “that wolves have traveled outside the [wolf recovery
area] does not establish that harm to any such wolves is imminent” and, in any event, “Plaintiffs
do not allege that, if the Cougar Rule is invalidated, that action by this Court would redress their
injuries.” Id. at 15. With respect to Count Three, Defendants assert that the Ossorios have not
alleged “any facts whatsoever relating to jaguars,” and thereby fail to establish all three
requirements of standing as to the jaguar. Id. at 16. Finally, Defendants assert both that the
Plaintiff Organizations “generally lack associational and organizational standing,” and also fail
to establish the three elements of standing with respect to jaguars. Id. at 16-17.
Plaintiffs respond that they met their burden “[a]t the motion to dismiss stage . . . by
making ‘general factual allegations of injury resulting from the defendant’s conduct,’” and that
“‘on a motion to dismiss [the Court] presume[s] that general allegations embrace those specific
facts that are necessary to support the claim.’” [Doc. 24 at 7] (quoting Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561 (1992)). Plaintiffs assert that the Ossorios have standing to assert all
three claims because their “aesthetic and recreational harms are ‘imminent’ as pled” (id. at 9),
and because they are not required to allege “an injury-in-fact that is connected to the species at
issue” (id. at 11) (citing Bennett v. Spear, 520 U.S. 154, 163-64 (1997)). Plaintiffs also assert
that the Plaintiff Organizations have both standing to sue on behalf of their members (id. at 12),
as well as “in their organizational capacity,” because they have been forced to “devote
significant resources” to opposition of Defendants’ illegal activity (id. at 15).

11

In reply, Defendants contend that, with regard to their first claim, Plaintiffs mistakenly
conflate harm to wolves with unlawful “take” of wolves, and, thus, ignore that trapping of a wolf
in the wolf recovery area can be lawful under the ESA and § 10(j). See [Doc. 25 at 2 and 4-8].
Defendants further contend that Plaintiffs lack standing to pursue their second and third claims
because they cannot allege the requisite injury, causation, and redressability as to the wolves
outside of the wolf recovery area and as to jaguars. See id. at 3 and 8-11.
Article III of the United States Constitution limits judicial power to “Cases” and
“Controversies,” which has been interpreted to require that Plaintiffs have a sufficient personal
stake in the outcome of their lawsuits to warrant invocation of federal court jurisdiction. See
Summers v. Earth Island Institute, 555 U.S. 488, 493 (2009). A plaintiff pursuing an action in
federal court bears the burden of establishing the elements of standing. Lujan, 504 U.S. at 560.
Those elements have been described by the Tenth Circuit Court of Appeals as “injury in fact,
causation, and redressability.” Cressman v. Thompson, 719 F.3d 1139, 1144 (10th Cir. 2013)
(citation and internal quotation marks omitted).
An injury in fact is “an invasion of a legally protected interest” that is concrete,
particularized, either actual or imminent, and not conjectural or hypothetical. Lujan, 504 U.S.
at 560. A “particularized” injury “must affect the plaintiff in a personal and individual way.”
Id., n.1. With respect to the claims asserted in this case, it has long been acknowledged that “the
desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a
cognizable interest for purpose[s] of standing.”

Id. at 562-63.

See also, Southern Utah

Wilderness Alliance v. Office of Surface Mining Reclamation and Enforcement, 620 F.3d 1227,
1233 (10th Cir. 2010). “But the ‘injury in fact’ test requires more than an injury to a cognizable
interest. It requires that the party seeking review be himself among the injured.” Sierra Club v.

12

Morton, 405 U.S. 727, 734-35 (1972). “[E]nvironmental 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.” Friends of the Earth,
Inc. v. Laidlaw Environmental Services, 528 U.S. 167, 183 (2000) (citations and internal
quotation marks omitted). With respect to wildlife, “[i]t is clear that the person who observes or
works with a particular animal threatened by a federal decision is facing perceptible harm, since
the very subject of his interest will no longer exist.” Lujan, 504 U.S. at 566. However, Lujan
specifically rejected an “animal nexus” claim to standing, which it described as “anyone who
observes or works with an endangered species, anywhere in the world, is appreciably harmed by
a single project affecting some portion of that species with which he has no more specific
connection,” as crossing the line “into pure speculation and fantasy.” Id. at 567 (emphasis added)
(footnote omitted). Applying these principles, the Tenth Circuit held that an environmental
group’s complaint that contained statements to the effect that “its members use the land affected
by [challenged mining] permits for various purposes—scientific study, hunting, aesthetic
appreciation, sightseeing, and solitude,” sufficiently demonstrated the existence of actual injury,
which meets the first prong of the standing inquiry.

Southern Utah Wilderness Alliance,

620 F.3d at 1234.
1. Jean and Peter Ossorio’s Standing With Respect to Mexican Wolf Claims
Defendants argue that none of the Plaintiffs has standing to assert their Mexican wolf
claims because the Complaint does not sufficiently allege either imminent injury or that
Defendants are the cause of Plaintiffs’ “claimed injury.” [Doc. 17 at 13]. Defendants do not
specifically address the Ossorios’ standing with respect to the Mexican wolf claims, but assert

13

that the Ossorios’ jaguar claims are invalid for the additional reason that “not one of the
Ossorios’ allegations relates to jaguars.” Id. at 16.13
In response, Plaintiffs contend that the Ossorios have standing to bring the Mexican wolf
claims because those claims contain “precisely the type of allegations of harm that regularly
satisfy Article III standing.” [Doc. 24 at 7]. Specifically, Plaintiffs argue that the Ossorios have
a deep personal interest in Mexican wolves, which will be harmed if wolves are trapped, and that
the Cougar Rule, by allowing more trapping and by allowing trapping that is more likely to harm
wolves, reduces the likelihood that the Ossorios will be able to recreationally enjoy the wolves in
the wolf recovery area. Id. at 8-9. Plaintiffs also contend that Defendants’ “intervening cause”
argument “misreads the complaint and misstates the law,” and that the Complaint does allege a
causal relationship between Defendants’ conduct and harm to the wolves. Id. at 10.
a.

Injury-In-Fact

First, the Court must determine whether the Ossorios have established an injury in fact by
addressing whether they allege (a) a concrete and particularized injury, and (b) whether that
injury is actual or imminent. In the Complaint, Plaintiff Jean Ossorio alleges that she lives in
Doña Ana County, New Mexico and is an active and regular hiker and camper “in New Mexico
wild lands, including the territory of the Mexican wolf, in order to observe Mexican wolves and
their sign” (Doc. 1 at 6-7, ¶ 21); that she has publicly advocated for Mexican wolves (id. at 7,
¶ 22); that she is “deeply and personally involved with the federal Mexican wolf recovery
program, volunteering as a pen sitter in 2013 for captive wolves identified as the Coronado pack
of Mexican wolves for reintroduction into the wild;” (id. at 7, ¶ 23); that she has attended

13

Plaintiffs’ jaguar claims will be discussed separately hereinafter.

14

“virtually every state and federal public meeting pertaining to Mexican wolf recovery from 1998
to the present;” (id.); that she has submitted comments on state and federal actions and
environmental assessments pertaining to Mexican wolves (id.); and that she is “vitally invested
in the health and survival of Mexican wolves,” and is “gravely concerned that the expansion of
cougar trapping . . . will cause the death and injury of Mexican wolves,” which “will harm her
deep and personal interest in viewing and listening to Mexican wolves in the wild during her
frequent and ongoing visits to their habitat” (id. at 8, ¶ 26). Similarly, Plaintiff Peter Ossorio
also alleges that he “is an active hiker and camper” who frequents Mexican wolf territory “to
observe Mexican wolves and their sign” (id. at 8, ¶ 27); that he “has personally been involved in
advocacy for Mexican wolves for over eighteen years” (id. at 8, ¶ 28); that he is a Vietnam
veteran and “has actively sought and experienced the calming and healing impact of natural
landscapes like the [wolf recovery area] (id. at 9, ¶ 30); and that he shares his wife’s concerns
about the expansion of cougar trapping, which he fears will result in death or injury of Mexican
wolves, which will thereby “prevent him from experiencing the restorative psychological effects
of his time in Mexican wolf territory” (id. at 9-10, ¶ 31).
Taking these factual allegations as true, as the Court must on a motion to dismiss, the
Court finds that the Ossorios have alleged facts that are sufficient to establish a particularized
injury that would affect them in a personal and individual way as to their claims regarding the
Mexican wolf.14 This finding is based on the Ossorio’s assertions in the Complaint that they live
in Doña Ana County, New Mexico, spend significant time hiking and camping in the Mexican
wolf recovery area in order to observe the wolves and their sign, have been active advocates of

14

As further discussed below, the Ossorios allege no such interest in the jaguar, nor does the Complaint
allege that either of them is a member of either Plaintiff Organization.

15

Mexican wolves for many years, and have recently visited the wolf recovery area, and intend to
continue doing so. See [Doc. 1 at 7-9]. In addition, the Court relies on Ms. Ossorio’s assertions
that she has been personally involved with captive Mexican wolves and has been active in public
efforts to protect the species, including as one of five conservation members on the New Mexico
Governor’s Catron County Mexican Wolf Task Force in 2005 and giving more than thirty public
presentations on Mexican wolves, and on Mr. Ossorio’s assertions that he has made
approximately 74 trips to the Mexican wolf recovery area since 1998 primarily because of the
presence of Mexican wolves there. Id.
Next, the Court considers Defendants’ contention that Plaintiffs have failed to sufficiently
allege an actual or imminent injury in the Complaint. See [Doc. 17 at 13 and 15]. With regard to
the wolves in the wolf recovery area, Defendants contend that Plaintiffs must allege that a
trapper has failed or will fail to exercise due care when trapping in the wolf recovery area in
order to establish an imminent injury. See id. at 13. As to wolves outside of the wolf recovery
area, Defendants contend that Plaintiffs do not allege that any trapping or snaring of Mexican
wolves has ever occurred outside the wolf recovery area, and that Plaintiffs’ allegations that
Mexican wolves have traveled outside of the wolf recovery area are too speculative to show that
an injury is actual or imminent. Id. at 14-15.
The Court finds that Defendants’ contentions are without merit. In their Complaint,
Plaintiffs allege that Defendants’ authorization, beginning on November 1, 2016, of recreational
cougar trapping on state trust and privately-owned lands within New Mexico, including such
lands within the Mexican wolf recovery area, is “a massive expansion [of] the geographical area
where cougars may be trapped in the state” (Doc. 1 at 18, ¶ 71) that “will result in significantly
more trapping and snaring activity” in the Mexican wolf recovery area (id. at 17, ¶ 67). Plaintiffs

16

also allege that “virtually the entire Mexican wolf population” (id. at 19, ¶ 80) will potentially be
exposed to cougar traps, which are “highly likely to also trap Mexican wolves because of
similarities in size, weight, and physiology between the species.” Id. at 19, ¶ 81. Moreover,
Plaintiffs allege that the Cougar Rule does not require any special precautions to protect Mexican
wolves (id. at 17-18, ¶ 70), such as modifications of traps, chains, drags, stakes, or cables “in a
manner that would provide a reasonable expectation that any Mexican wolf caught in such a trap
would be prevented from either breaking the chain or escaping with the trap on the wolf” (id.
at 20, ¶¶ 83, 84), and that it would be “impossible” for trappers “to take precautions sufficient to
avoid death or injury to Mexican wolves while setting traps for cougar” (id. at 20, ¶ 86).
Plaintiffs allege that “[m]onthly reports from the Mexican Wolf Reintroduction Project and other
sources have recorded numerous accounts of Mexican wolves ranging either outside the
MWEPA or very close to its northernmost border,” so “[t]he Cougar Rule will also cause the
death, injury, and harassment of Mexican wolves that range outside the MWEPA by exposing
them to leghold traps and snares.” Id. at ¶ 88; see also id. at 15, ¶ 58 (“[U.S. Fish and Wildlife
Service] has acknowledged that Mexican wolves travel outside of the MWEPA.”). Finally,
Plaintiffs allege that “[t]here have already been at least thirty-seven documented instances of
Mexican wolves being caught in traps -- including several mortalities and severe injuries -- since
reintroduction began in 1998” (id. at ¶ 89), and that “[t]he Cougar Rule will cause a dramatic
increase in incidents like these because traps used for cougars are much more likely to take
Mexican wolves than the traps used for smaller furbearers” (id. at 21, ¶ 89).
Taking Plaintiffs’ factual allegations as true, the Court concludes that Plaintiffs have
sufficiently alleged that harm to Mexican wolves by cougar traps is imminent both inside and
outside the wolf recovery area.

Plaintiffs have alleged that the Cougar Rule expands the

17

geographical area where cougars may be trapped in the state, that the Cougar Rule will increase
trapping and snaring activity in areas where Mexican wolves either currently exist or are able to
move to, that cougar traps are likely to also trap Mexican wolves because they are similar in size
to cougar, and that the Cougar Rule does not require special precautions to protect Mexican
wolves. Therefore, the Court finds that these allegations establish an imminent injury to the
Mexican wolf that is not “pure speculation or fantasy.” See Lujan, 504 U.S. at 567. In addition,
the Court finds that the Ossorios have demonstrated that harm to Mexican wolves will produce
imminent injury to them, based, again, on their efforts to protect the wolves, their repeated and
frequent visits to the wolf recovery area to observe and study the wolves, and their physical
involvement with the wolves in the form of feeding and caring for those in captivity. See id.
at 564 (explaining that injury to a species is insufficient for standing purposes unless a plaintiff
also establishes that his or her own harm is also imminent, and stating that plaintiffs must allege
facts that show “how damage to the species will produce ‘imminent’ injury to [them]”). The
Court, therefore, concludes that the Ossorios have alleged facts that are sufficient to satisfy the
first prong of Article III standing (i.e., injury-in-fact) with respect to the Plaintiffs’ First and
Second causes of action, alleging harm to Mexican wolves.15
b.

Causation

Next, the Court considers Defendants’ contention that Plaintiffs have failed to establish
that Defendants’ actions are the cause of Plaintiffs’ claimed injury.

15

See [Doc. 17 at 13].

The Court notes that the parties dispute whether or not the Ossorios have enjoyed the Mexican wolves
outside of the wolf recovery area, and that this dispute appears to be based on the parties’ competing contentions
regarding whether or not the Mexican wolves have left the wolf recovery area, and whether or not there has been
trapping or snaring of Mexican wolves outside of the wolf recovery area. Compare, e.g., [Doc. 17 at 14-15] with
[Doc. 24 at 9-10]. Because the Court finds that Plaintiffs have sufficiently alleged in their Complaint that some
Mexican wolves have ranged outside of the wolf recovery area, the Court does not reach this issue. Moreover, this
factual dispute is better resolved in a summary judgment proceeding and not upon a motion to dismiss.

18

Defendants claim that Plaintiffs have failed to establish causation within the wolf recovery area
because trapping is not considered unlawful in that area unless there is a lack of due care, and
Plaintiffs cannot establish that the Cougar Rule will cause a trapper to fail to exercise due care.
Id. at 14. With regard to wolves outside the wolf recovery area, Defendants contend that
Plaintiffs fail to allege that Defendants have caused any injury to wolves that are outside that
area. Id. at 15. Under the causation prong of Article III standing, the harm alleged must be
“fairly traceable to the challenged action of the defendant.” WildEarth Guardians v. U.S.
Environmental Protection Agency, 759 F.3d 1196, 1205 (10th Cir. 2014) (citing Laidlaw,
528 U.S. at 180-81). Here, Plaintiffs allege that the Commissioner Defendants, in their official
capacities, are responsible for “promulgating regulations[,] setting quotas and specifying the
allowable means and manner of hunting and trapping game species in [New Mexico].” [Doc. 1
at 10 ¶ 32].

Plaintiffs allege that the Director, in her official capacity, is responsible for

“implementing and enforcing the fish and game regulations promulgated by the Commission[,]”
including “issuance of hunting and trapping permits,” investigating and prosecuting game
violations, and closing hunting and trapping seasons based on filling of quotas or in an
emergency. Id. at 11 ¶ 40. Plaintiffs also allege that Defendants’ enactment of the Cougar Rule
will result in significantly more trapping and snaring activity in the Mexican wolf recovery area
(id. at 17, ¶¶ 65, 67), that Defendants failed to require any special precautions to protect Mexican
wolves (id. at 17-18, ¶ 70), such as modifications of traps, chains, drags, stakes, or cables “in a
manner that would provide a reasonable expectation that any Mexican wolf caught in such a trap
would be prevented from either breaking the chain or escaping with the trap on the wolf” (id.
at 20, ¶¶ 83, 84), and that it would be “impossible” for trappers “to take precautions sufficient to
avoid death or injury to Mexican wolves while setting traps for cougar” (id. ¶ 86). Considering

19

these allegations as true for purposes of determining the merits of Defendants’ motion to dismiss,
the Court concludes that Plaintiffs have adequately pled that imminent harm to the wolves, and
therefore to the Ossorios, is “fairly traceable” to Defendants’ actions. Thus, Plaintiffs have
satisfied the causation prong of Article III standing, as well.
c.

Redressability

Finally, Plaintiffs must allege sufficient facts from which it may be determined that “it is
likely, as opposed to merely speculative, that the alleged injury will be redressed by a favorable
decision” from the Court. Laidlaw, 528 U.S. at 180-81. Here, Plaintiffs allege that Defendants’
permitting of the use of cougar traps and snares on land where Mexican wolves roam will result
in hunting and trapping activity that violates provisions of the ESA and its attendant regulations.
See [Doc. 1 at 22-23]. Since the ESA provides that Plaintiffs’ claims may be brought in the
United States district courts, which may enjoin activity that violates its provisions (see
16 U.S.C. § 1540(g)), this Court has authority to enjoin Defendants from issuing permits to trap
cougars in areas where Mexican wolves are known to roam. Moreover, because Defendants are
the entities who have enacted the Cougar Rule, they can also revoke it. Therefore, the Court
finds that Plaintiffs have adequately pled the third prong of Article III standing--redressability.
2. Plaintiff Organizations’ Standing With Respect to Mexican Wolf Claims
In their motion to dismiss, Defendants contend that the Plaintiff Organizations have
failed to properly allege associational standing that would allow them to bring claims on behalf
of their members because they “have not identified specific members that have standing to sue in
their own right.” [Doc. 17 at 10-11]. Defendants also claim that the Plaintiff Organizations have
failed to properly allege “organizational” standing on their own behalf, because these Plaintiffs’
alleged organizational purposes are too broad, and their organizational harms are too speculative.

20

Id. at 11-13. Plaintiffs respond that the Plaintiff Organizations have standing to sue on behalf of
their members (Doc. 24 at 12),16 and that the issue of organizational harm need not be reached
because the Ossorios and the Plaintiff Organizations “possess standing on other grounds, only
one of which is necessary for jurisdiction to issue” (id. at 14-15).

Plaintiff Organizations

additionally contend that they have standing as organizations based on having to redirect
resources “to combat the Defendants’ illegal activity” that would otherwise be used for “other
wildlife protection projects.” Id. at 15.
In their Complaint, Plaintiffs allege that Plaintiff HSUS “strives to protect and improve
the management of threatened and endangered species throughout the country and to eliminate
inhumane methods of hunting and trapping” (Doc. 1 at 3-4, ¶ 11); that its “members and staff
rely on cougars, Mexican wolves, and jaguars for recreational, aesthetic, and professional
purposes” (id. at 4, ¶ 13); and that, due to Defendants’ expansion of cougar hunting, HSUS “has
been forced to redirect programmatic resources and finances to combat the Defendants’ illegal
activity affecting Mexican wolves and jaguars” (id. at 4, ¶ 14). Similarly, Plaintiff APNM
alleges that it has “worked extensively to advocate for the reintroduction of Mexican gray wolves
into New Mexico and the Southwestern United States” (id. at 5, ¶ 16); that its members
“regularly visit wild areas in New Mexico to recreate . . . and to observe wildlife,” and have
“oppos[ed] the Cougar Rule” (id. at 6, ¶ 19); and that it “has been forced to spend time, money,
and other institutional resources researching and advocating for protection of Mexican wolves
and jaguars, including those that are adversely affected by the Department [of Game and Fish]’s
failure to protect these animals” (id. ¶ 20).

16

As to this argument, Plaintiffs rely heavily on several declarations submitted as exhibits to their response
brief. See [Doc. 24-1 at 1-42]. However, those declarations were not considered by the Court with respect to the
motion to dismiss because they contain factual assertions that were not alleged in the Complaint.

21

Although it is not entirely clear from the Complaint, it appears that the Plaintiff
Organizations seek to assert the claims in the Complaint based on both their own interests and
the interests of their members. It is well-established that an organization has standing to bring an
action on behalf of its members if “its members would otherwise have standing to sue in their
own right, the interests at stake are germane to the organization’s purpose, and neither the claim
asserted nor the relief requested requires the participation of individual members in the lawsuit.”
Laidlaw, 528 U.S. at 181. Here, the Complaint asserts that:
HSUS members and staff rely on cougars, Mexican wolves, and jaguars for
recreational, aesthetic, and professional purposes. HSUS members regularly visit
wild areas in New Mexico to recreate by themselves and with their companion
animals, and to observe wildlife. They are distressed when animals are subjected
to what they believe is cruel and unnecessary suffering in leg-hold traps and
snares, and they are deterred from recreating in wild lands when traps that present
a threat to their companion animals are present. Furthermore, they will not be able
to view cougars, jaguars and Mexican wolves in New Mexico if these species are
not properly protected from threats to their individual and collective survival.
Doc. 1 at 4, ¶ 13. With respect to APNM, the Complaint asserts that its members have “actively
campaigned against killing contests and the trapping and poisoning of wildlife on public lands in
New Mexico (id. at 5, ¶ 17), and have submitted written comments and oral testimony opposing
the Cougar Rule (id. at 6, ¶ 19).17 However, the Ossorios are not identified as members of either
Plaintiff Organization and, in order for the Plaintiff Organizations to establish organizational
standing, they must “make specific allegations establishing that at least one identified member

17

Again, Plaintiffs submitted several affidavits from non-party members and employees of the Plaintiff
Organizations with their response to the motion to dismiss. See [Doc. 24-1 at 1-42]. The Court declines to consider
those affidavits in connection with Defendants’ motion to dismiss, since the Complaint itself must state sufficient
facts that, when considered to be true, establish subject matter jurisdiction. Given the Court’s decision on standing
in this case, along with the dismissal of certain claims without prejudice, it would be premature to consider the
motion to dismiss as a motion for summary judgment, since the claims have not yet been fully developed. The
Court expresses no opinion regarding the adequacy of the statements in the affidavits to establish standing for the
Plaintiff Organizations.

22

had suffered or would suffer harm.”

Summers, 555 U.S. at 498 (emphasis added).

The

Complaint in this case does not specifically identify any member of either Plaintiff Organization,
much less any facts establishing that person’s individual standing to bring the claims set forth.
As such, the Complaint fails to satisfy the standard set forth in Summers for organizational
standing.
In addition, the Court finds that the Complaint fails to allege sufficient facts to establish
the Plaintiff Organizations’ standing in their own right. Plaintiffs claim that the Organizations,
which are in the business of animal advocacy, have advocated against Defendants’ decision to
allow cougar hunting, and that they have had to dedicate resources to the opposition of cougar
hunting that would otherwise have been available for other projects. See, e.g., [Doc. 1 at 4-6,
¶¶ 14, 18, 20]. These factual allegations, which are over-broad and vague in any event, fail to
sufficiently identify what actual harm will be suffered by the Organizations if this Court does not
grant the relief they seek. Moreover, although the relief sought in the Complaint is prospective,
the only organizational harm alleged in the Complaint has already occurred, since it consists of
the redirection of resources to opposition of Defendants’ proposal to expand the cougar hunt.
Nonetheless, this Court has determined that the Ossorios have Article III standing to
assert claims related to the Mexican wolf, and “the presence of one party with standing is
sufficient to satisfy Article III’s case-or-controversy requirement.”

Rumsfeld v. Forum for

Academic & Institutional Rights, Inc. 547 U.S. 47, 52 n.2 (2006). Indeed, it is particularly
appropriate to decline to require every plaintiff to establish standing where, as here, they are all
“represented by the same counsel and jointly raise the same substantive arguments.” Campbell
v. Buckley, 203 F.3d 738, 740 n.1 (10th Cir. 2000) (“[W]e decline to address the standing issue
[of the institutional plaintiffs] . . . where, as here, these plaintiffs have not obtained relief

23

different from that of the plaintiffs who do have standing.”) (citations omitted). Accord Taylor v.
Roswell Independent School District, 713 F.3d 25, 29 n.1 (10th Cir. 2013) (finding that the case
was not moot because at least one student was still enrolled in school and, therefore, “[a]s long
as one plaintiff meets the requirements of Article III, the court can adjudicate the issues raised in
the complaint”) (citations and internal quotation marks omitted).

Therefore, even though

Plaintiffs have failed to establish standing as to the Plaintiff Organizations, because Plaintiffs
have established standing as to the Ossorios regarding the Mexican wolf claims, the Court will
deny Defendants’ motion to dismiss as to Counts One and Two.
3. Plaintiffs’ Standing With Respect to Jaguar Claim
Defendants contend that none of the Plaintiffs has standing to assert claims based on
harm to jaguars. [Doc. 17 at 16-18]. Defendants contend that, because Plaintiffs’ allegations are
so vague, and the existence of jaguars in New Mexico is so speculative, Plaintiffs’ jaguar claim
does not meet the “actual or imminent injury” standard for standing. Id. In addition, Defendants
contend the Ossorios “do not allege any facts whatsoever relating to jaguars.” Id. at 16.
In response, Plaintiffs contend: that their “Complaint alleges that jaguars’ range includes
areas in southwestern New Mexico, where ‘it is likely that several jaguars move through this area
every year and several may have taken up permanent residence there,’” (Doc. 24 at 24, citing
Doc. 1 at 21, ¶¶ 90-91); that FWS has determined that land within New Mexico is “critical
habitat” for jaguars;18 and that Defendants “appeared to recognize the threat posed” to jaguars by
prohibiting snaring in jaguar critical habitat. Id. Plaintiffs also assert that “standing for citizen

18

The Court again notes that the designation of the jaguar’s critical habitat in New Mexico is currently
being challenged in New Mexico Farm and Livestock Bureau, et al. v. United States Dept. of the Interior, et al., No.
CIV-15-428 KG/CEG.

24

suits under the ESA does not require an injury-in-fact that is connected to the species at issue.”
Id. at 11.
To demonstrate standing as to their jaguar claim, Plaintiffs must establish a “personal
stake” in the outcome of the claim. See Summers, 555 U.S. at 493. See also Davis v. Federal
Election Commission, 554 U.S. 724, 734 (2008) (“plaintiff must demonstrate standing for each
claim he seeks to press”, quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006)).
Thus, Plaintiffs must establish an injury in fact, causation, and redressability with respect to their
jaguar claim in Count Three. See Cressman, 719 F.3d at 1144. To establish injury-in-fact,
Plaintiffs, or at least one of them, must show a concrete, “particularized” injury that affects them
“in a personal and individual way.” Lujan, 504 U.S. at 560, n.1. As with the Plaintiffs’ Mexican
wolf claim, a desire to use or observe an animal species is a cognizable interest for the purpose
of Article III standing. Id. at 562-63. However, Plaintiffs have failed to sufficiently allege a
desire to observe, study, or spend time near the jaguar. The Ossorios clearly established such
desires with respect to the Mexican wolf, but there is no allegation in the Complaint that the
Ossorios have such an interest in the jaguar. Aside from general allegations regarding the jaguar
species, Plaintiffs’ allegations regarding the jaguar are infrequent and superficial. For example,
in allegations regarding HSUS members and staff, jaguars are simply included along with
cougars and Mexican wolves as a species that those individuals will not be able to view. See
[Doc. 1 at 4, ¶ 13]. Similarly, HSUS includes jaguars with wolves and cougars as species to
which it has been forced to divert resources due to the Cougar Rule (id. at 4-5, ¶ 14), and APNM
alleges that jaguars are one of three species that it has had to divert resources to, and that its
members will no longer be able to view, due to Defendants’ expansion of cougar hunting (id.
at 6, ¶¶ 19, 20).

The Complaint also fails to identify a single member of either Plaintiff

25

Organization who has a particularized interest in the jaguar, which means that Plaintiff
Organizations do not have associational standing to assert claims based on potential harm to
jaguars, and the consequent harm to an individual, as their basis. Summers, 555 U.S. at 498.
In addition, the Plaintiff Organizations fail to establish a particularized interest on their
own behalf. Although redirecting institutional resources to the cause of opposing cougar hunting
may ultimately benefit any number of species besides the cougar, as well as the aesthetic,
scientific, and recreational pursuits of many of the people who live in or visit New Mexico, it
does not demonstrate that the Plaintiff Organizations will suffer an imminent and particularized
injury by virtue of “take” of jaguars in the course of legalized cougar hunting. “[A] mere
[organizational] ‘interest in a problem,’ no matter how longstanding the interest and no matter
how qualified the organization is in evaluating the problem, is not sufficient by itself to render
the organization ‘adversely affected’ or ‘aggrieved’” for standing purposes.
405 U.S. at 738.

Sierra Club,

If such an interest were enough to extend standing to the Plaintiff

Organizations, there would be virtually no limit to the number of individuals and organizations
with standing to bring actions based on potential harm to species or environments all across the
country. Instead, injury in fact “requires more than an injury to a cognizable interest. It requires
that the party seeking review be himself among the injured.” Id. at 734-35. Thus, although a
“person who observes or works with a particular animal threatened by a federal decision is
facing perceptible harm,” that does not mean that “anyone who observes or works with an
endangered species, anywhere in the world, is appreciably harmed by a single project affecting
some portion of that species with which he has no more specific connection.” Lujan, 504 U.S.
at 566-67.

26

In their response to Defendants’ motion to dismiss, Plaintiffs contend that the Supreme
Court case of Bennett v. Spear, 520 U.S. 154 (1997), “squarely held that standing for citizen suits
under the ESA does not require an injury-in-fact that is connected to the species at issue.”
[Doc. 24 at 11] (citing Bennett at 163-64). Plaintiffs misinterpret the Bennett decision. In
Bennett, the petitioners were irrigation districts and ranchers who used water from the Klamath
Irrigation Project, which is a series of lakes, rivers, dams, and irrigation canals in California and
Oregon.

Id. at 158.

The petitioners brought suit under the ESA and the Administrative

Procedure Act (“APA”), challenging a FWS biological opinion, which concluded that the
Klamath Project was “likely to jeopardize the continued existence” of two species of endangered
fish, unless minimum water levels were maintained in Clear Lake and Gerber reservoirs. Id.
at 159. The petitioners alleged that there was no scientific evidence either that the endangered
fish populations had declined or that the lake levels imposed by the FWS would have any
beneficial effect on the fish. Id. at 159-60. Petitioners also claimed to use the reservoirs and
waterways for “recreational, aesthetic and commercial purposes, as well as for their primary
sources of irrigation water.” Id. at 160 (citation omitted).
The district court dismissed the complaint on the ground that petitioners lacked standing
because “their [alleged interests] do not fall within the zone of interests sought to be protected by
ESA.” Id. at 160-61 (citation omitted). The Ninth Circuit affirmed, holding that “only plaintiffs
who allege an interest in the preservation of endangered species fall within the zone of interests
protected by the ESA.” Id. at 161 (citation omitted). The Supreme Court reversed, holding that
the ESA’s “citizen suit provision,” which provides that “any person may commence a civil suit,”
(ESA § 11(g)), was broad enough to negate the zone of interests test. Id. at 164. The Court
reasoned:

27

It is true that the plaintiffs here are seeking to prevent application of
environmental restrictions rather than to implement them. But the “any person”
formulation applies to all the causes of action authorized by § 1540(g)—not only
to actions against private violators of environmental restrictions, and not only to
actions against the Secretary asserting under[-]enforcement under § 1533, but also
to actions against the Secretary asserting over[-]enforcement under § 1533. As
we shall discuss below, the citizen-suit provision does favor environmentalists in
that it covers all private violations of the ESA but not all failures of the Secretary
to meet his administrative responsibilities; but there is no textual basis for saying
that its expansion of standing requirements applies to environmentalists alone.
The Court of Appeals therefore erred in concluding that petitioners lacked
standing under the zone-of-interests test to bring their claims under the ESA’s
citizen-suit provision.
Id. at 166. Significantly, Bennett did not eliminate the requirement, reiterated in later Supreme
Court decisions, that Article III standing requires a plaintiff to establish a particularized injury
for each claim asserted. See, e.g., Summers, 555 U.S. at 493; Davis, 554 U.S. at 733. Bennett
also did not hold, as Plaintiffs assert here (Doc. 24 at 11), that claim- or species-specific standing
is no longer required. Moreover, even if the zone of interests test still applied to ESA claims
after Bennett, this Court is not suggesting that Plaintiffs’ claims are not within the zone of
interests of the ESA. Indeed, as Plaintiffs are asserting claims under the ESA to the effect that
Defendants’ actions will result in harm to endangered species, their grievances are clearly within
that statute’s zone of interests. However, the zone of interest requirement was “[i]n addition to
Article III standing requirements,” rather than an alternate basis for those requirements. See
Catron County Board of Commissioners v. U.S. Fish & Wildlife Services, 75 F.3d 1429, 1434
(10th Cir. 1996).
Applying these principles, the Court finds that Plaintiffs have not stated a viable claim for
relief with respect to the jaguar. The Ossorios have not alleged any interest at all in the jaguar,
and the Plaintiff Organizations’ jaguar allegations are insufficient, both because no member of
either organization with individual standing is identified in their Complaint, and because their

28

factual allegations regarding potential harm to the jaguar are far too broad and vague to satisfy
the standards already addressed with respect to Article III. Therefore, the Court will dismiss
without prejudice Count Three of the Complaint. See WildEarth Guardians v. Bidegain, 555 F.
App’x 815, 817 (10th Cir. Mar. 7, 2014) (unpublished) (dismissal for lack of Article III standing
should be without prejudice) (citation omitted).
B. Legislative Immunity
The Commissioner Defendants have also moved to dismiss Plaintiffs’ Complaint on the
ground that it is barred by legislative immunity. See [Doc. 17 at 18-21]. These Defendants
assert that “individuals who are not members of legislative bodies may nonetheless claim
[legislative] immunity when they have been delegated legislative powers” (id. at 19), and that
“[t]here is no question that the Commission was acting in its legislative capacity in establishing
the Cougar Rule” (id. at 20). Plaintiffs respond that “the Cougar Rule is . . . an instance of a
routine, administrative update to hunting and trapping details” and, therefore, is an “executive or
administrative” action (Doc. 24 at 26) that is not protected by legislative immunity (id. at 25).
Plaintiffs also assert that, “even if legislative immunity did apply so as to bar suit against the
Commissioners in their official capacity [sic], Defendants do not allege that [Defendant] Director
Sandoval is entitled to immunity,” and, therefore, “this case should proceed against [Defendant
Sandoval] even if the Commissioners are dismissed.” Id. at 26. Defendants reply that Plaintiffs’
failure to specifically allege that the Commissioner Defendants have some duty to enforce the
law means that those Defendants “are entitled to absolute legislative immunity.” [Doc. 25 at 12]
(citation omitted).
In its most basic form, the doctrine of legislative immunity provides “that legislators are
absolutely immune from liability for their legislative activities.”

29

Bogan v. Scott-Harris,

523 U.S. 44, 48 (1998).

This “privilege” arose from Sixteenth and Seventeenth Century

Parliamentary struggles, and was incorporated from the common law into the federal
Constitution, via the Speech and Debate Clause of Article I, § 6. Id. at 48-49; see also Kilbourn
v. Thompson, 103 U.S. 168, 202-04 (1880) (Speech and Debate Clause provides immunity to
members of Congress). In 1951, the Supreme Court in Tenney v. Brandhove, 341 U.S. 367, 376
(1951), held that legislative immunity extends to state legislators who were “acting in the sphere
of legitimate legislative activity.” The Tenney court also held that, whether or not it had the
power to do so, Congress did not intend to limit traditional legislative freedoms by creating a
cause of action for civil rights violations against persons acting under color of state law.19 Id.
In 1998, the Supreme Court held that absolute immunity from § 1983 suits applies to local
legislators, as well, “[b]ecause the common law accorded local legislators the same absolute
immunity it accorded legislators at other levels of government, and because the rationales for
such immunity are fully applicable to local legislators.” Bogan, 523 U.S. at 49. The Supreme
Court in Bogan further “recognized that officials outside the legislative branch are entitled to
legislative immunity when they perform legislative functions.” Id. at 55 (citing Supreme Court
of Va. v. Consumers Union of United States, Inc., 446 U.S.719, 731-34 (1980)).
Thus, legislative immunity is based on important and historic principles, the cornerstone
of which is that “[l]egislators are immune from deterrents to the uninhibited discharge of their
legislative duty, not for their private indulgence but for the public good. One must not expect
uncommon courage even in legislators.” Tenney, 341 U.S. at 377. The majority of cases that
have addressed the scope of legislative immunity have done so in the context of state or local

19

Although the specific provision at issue in Tenney was 8 U.S.C. § 43, it has since been referred to as
“§ 1983” (42 U.S.C. § 1983). See Bogan, 523 U.S. at 49.

30

government liability for civil rights violations. See, e.g., Tenney; Bogan; Monell v. Dept. of
Social Services, 436 U.S. 658 (1978); and Lake Country Estates, Inc. v. Tahoe Regional
Planning Agency, 440 U.S. 391 (1979).

Those cases uniformly hold that state and local

governmental units, including commissions, departments, and boards, are not legislatively
immune to civil rights actions.
On the other hand, individual members of such governmental organizations are immune
from personal liability for actions they took that are within the sphere of legislative activity.
Tenney, 341 U.S. at 376-77. If individual members of a legislative body enact unconstitutional
legislation, “there is no reason why relief against [the legislative body] itself should not
adequately vindicate petitioners’ interests.” Lake Country, 440 U.S. at 405, n.29. In other
words:
Official immunities (judicial, legislative, absolute, qualified, quasi, and so on) are
personal defenses designed to protect the finances of public officials whose
salaries do not compensate them for the risks of liability under vague and hard-toforesee constitutional doctrines. That justification does not apply to suits against
units of state or local government, which can tap the public fisc.
Hernandez v. Sheahan, 455 F.3d 772, 776 (7th Cir. 2006) (citation omitted and emphasis added).
Additionally, since claims against individuals in their official capacities “generally represent
only another way of pleading an action against an entity of which an officer is an agent,” such
claims are considered to be against the entity itself, to which personal immunities do not apply.
Monell, 436 U.S. at 690, n.55; see also Owen v. City of Independence, Mo., 445 U.S. 622, 638
n.18 (1980) (official immunities only apply when government officials are sued in their
individual capacities).
Here, all of the Defendants have been sued in their official capacities as officials of the
State of New Mexico. Therefore, this Court need not determine whether the conduct that is at

31

issue in this case is “within the sphere of legitimate legislative activity,” as Defendants are not
facing personal liability, and the privilege of legislative immunity does not apply. Moreover, the
burden is on the government officials asserting that immunity to show that it is applicable. See
Forrester v. White, 484 U.S. 219, 224 (1988) (“[o]fficials who seek exemption from personal
liability have the burden of showing that such an exemption is justified”); see also Borde v.
Board of County Commissioners of Luna County, N.M., 423 F. App’x 798, 802 (10th Cir.
May 18, 2011) (unpublished) (defendant officials must “explain how their participation . . . [in
the alleged conduct] qualifies as legislative activity”). Defendants have not explained how the
doctrine of legislative immunity prohibits Plaintiffs’ claims against them.

Accordingly,

Defendants’ defense of legislative immunity is denied.
C. Rule 12(b)(6) Claims
Finally, Defendants assert that the claims made in Plaintiffs’ Complaint cannot withstand
scrutiny under Fed. R. Civ. P. 12(b)(6) because: (1) in the wolf recovery area, “the ‘due care’
standard applies to the act of trapping, and not to the regulation of trapping,” and “trapper[s] can
exercise ‘due care’ when setting traps for cougar;” (2) the Complaint fails to allege “that cougar
trapping or snaring outside the [wolf recovery area] has resulted or will imminently result in the
illegal take of Mexican wolves”; and (3) Plaintiffs’ allegations regarding the jaguar are
“conclusory” and “unsupported by the requisite factual allegations.” [Doc. 17 at 2]. Defendants
also contend that the “key factual issue” in this case is “not whether a trap would capture or kill a
Mexican wolf,” but “whether a trapper could exercise ‘due care,’ as defined by the [special wolf]
[r]ule, when setting a cougar trap.” Id. at 23. Plaintiffs respond that Defendants’ argument
“misreads” the Complaint, in which Plaintiffs allege that “by authorizing cougar trapping and
opening a cougar trapping season, Defendants will cause the death, injury, and harassment of

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Mexican wolves and jaguars by allowing trappers to set cougar traps and snares – which pose an
unavoidable risk of capturing a non-target Mexican wolf – throughout the [wolf recovery area].”
[Doc. 24 at 10] (quoting Doc. 1 at 3, 20, ¶¶ 6, 87) (internal quotation marks omitted).20 Plaintiffs
explain that their Complaint “does not allege” that Defendants “exhibit[ed] a lack of due care in
promulgating the Cougar Rule,” but instead, that “government agencies that enact regulations
that result in ESA violation [sic] by private individuals . . . have violated the ESA.” Id. at 20.
Plaintiffs also assert that the “due care”-in-trapping issue presents a mixed question of fact and
law that is not properly subject to a motion to dismiss. Id. at 11, n.1. In their reply, Defendants
assert that, since trapping that results in unintentional harm to a wolf can lawfully be conducted
under the special wolf rule, such harm does not constitute unlawful take. [Doc. 25 at 2].
Rule 12(b)(6) provides for dismissal of claims based on a plaintiff’s “failure to state a
claim upon which relief can be granted.” To survive a motion to dismiss under Rule 12(b)(6), a
plaintiff’s “complaint must plead sufficient facts, taken as true, to provide ‘plausible grounds’
that discovery will reveal evidence to support the plaintiff’s allegations.” Archuleta v. Wagner,
523 F.3d 1278, 1283 (10th Cir. 2008) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 556 (2007)). Defendants claim that the special wolf rule (50 C.F.R. § 17.84) does
not apply to their conduct.

[Doc. 17 at 21].

In so asserting, Defendants rely heavily on

WildEarth Guardians v. Lane, CIV 12-118, 2012 WL 6019306 (D. N.M. Dec. 4, 2012)
(unpublished), reversed in part and remanded sub nom WildEarth Guardians v. Bidegain, 555 F.

20

Since Count Three of Plaintiffs’ Complaint (relating to jaguars) has been dismissed, the Court will not
repeat the parties’ arguments regarding that claim. Similarly, since the Court has ruled that the Ossorios have
standing to assert the Mexican wolf claims, thereby allowing this matter to proceed as to those claims, the Court
need not address the argument by Plaintiff Organizations that they have sufficiently asserted the Mexican wolf
claims in their own right, particularly since Plaintiffs rely on declarations submitted with their response to the
motion to dismiss that the Court did not consider.

33

App’x 815 (10th Cir. Mar. 7, 2014) (unpublished).21 In Lane, the plaintiff sought to end
“furbearer”22 trapping in the Mexican wolf recovery area, contending that “by authorizing
trapping within occupied wolf range without first exercising due care to avoid taking a Mexican
gray wolf,” the defendants violated ESA § 9 (16 U.S.C. § 1538) and the special wolf rule. Id.
at *1. The district court in Lane held that the due care provision of a previous version of the
special wolf rule “does not apply to the regulation or non-regulation of trapping, or to the
promulgation or enforcement of New Mexico’s state trapping regulations.”

Lane,

2012 WL 6019306, at *14. Not surprisingly, Defendants in the present case characterize the
current Plaintiffs’ claims as also asserting a direct violation of the special wolf rule’s due care
provision. See, e.g., [Doc. 17 at 22] (“Plaintiffs appear to allege that Defendants have violated
the [special wolf rule] by ‘exhibiting a lack of due care’ in promulgating the Cougar Rule”)
(referencing Doc. 1 at 22-23, ¶¶ 101-105). Once Plaintiffs’ claims are characterized as identical
to the ones asserted in Lane, Defendants can rely on the Lane holding that the special wolf rule
does not apply to regulation of trapping. Plaintiffs, however, contend that “Defendants contort
the straightforward allegations in the Complaint in an attempt to analogize them to the
distinguishable claims brought before this court in [Lane].” [Doc. 24 at 15]. Plaintiffs also
assert that their claims are distinguishable from the ones made in Lane, because they “are
challenging a brand-new cougar trapping scheme that presents new and unprecedented threats to

21

The district court decision will hereinafter be referred to as “Lane,” and the Circuit Court decision will be
referred to as “Bidegain.”
22

In New Mexico, “fur-bearing animals” (or, “furbearers”) are defined as “muskrat, mink, weasel, beaver,
otter, nutria, masked or blackfooted ferret, ringtail cat, raccoon, pine marten, coatimundi, badgers, bobcat and all
species of foxes.” N.M. Stat. § 17-5-2 (1978). It is uncontested that furbearer hunting and trapping were allowed
within the wolf recovery area prior to Defendants’ expansion of the cougar hunting area since, with limited
exceptions, furbearers may be hunted “statewide.” See N.M. Admin. Code § 19.3.2. Therefore, any wolves that
were previously trapped were most likely caught in traps set for furbearers. Unlike the plaintiff in Lane, however,
Plaintiffs here do not seek to end furbearer trapping in the wolf recovery area, only cougar trapping.

34

protected wildlife that exceed the trapping program [challenged in Lane].” Id. at 16 (citing
Doc. 1 at 19-21, ¶¶ 77-89).
Plaintiffs’ factual allegations in paragraphs 77-89 of the Complaint include: (1) prior to
Defendants’ adoption of the Cougar Rule, cougar trapping “was almost completely prohibited in
New Mexico” (Doc. 1 at 19, ¶¶ 77); (2) much of the new land now open to cougar trapping
includes “key Mexican wolf habitat” (id. at 19, ¶ 78); (3) “[l]eg-hold traps of the size and type
used for trapping cougars are highly likely to also trap Mexican wolves because of similarities in
size, weight, and physiology between the species. Indeed, companies that sell leg-hold traps
often advertise models that are meant to trap both cougars and wolves” (id. at 19, ¶ 81);
(4) “[g]iven the state of current trapping technology, it would be impossible to modify a leg-hold
trap or snare to make it selective enough to trap cougars but not trap Mexican wolves” (id. at 19,
¶ 82); (5) “[t]he Cougar Rule allows for the use of traps and snares that are likely to trap a
Mexican wolf and from which a Mexican wolf would not be able to immediately pull free,” and
does not “require that cougar trappers modify their traps, chains, drags, stakes, or cables in a
manner that would provide a reasonable expectation that any Mexican wolf caught in such a trap
would be prevented from either breaking the chain or escaping with the trap on the wolf” (id.
at 20, ¶¶ 83-84); (6) it is not possible to set cougar traps that will avoid causing death or injury to
wolves, and allowing cougar trapping in the wolf recovery area “pose[s] an unavoidable risk of
capturing a non-target Mexican wolf” (id., ¶¶ 86-87); (7) Mexican wolves are recorded as
“ranging either outside the [wolf recovery area] or very close to its northernmost border” (id,
¶ 88); and (9) since Mexican wolves began being released into the wolf recovery area in 1998,
there have been “at least thirty-seven documented instances” of wolves caught in traps set for
furbearers, resulting in “several mortalities and severe injuries,” and “traps used for cougars are

35

much more likely to take Mexican wolves than traps used for smaller furbearers” (id. at 20-21,
¶ 89).
This Court must assume that factual allegations in a complaint are true when considering
a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Moreover, “a well-pleaded
complaint may proceed even if it strikes a savvy judge that actual proof of those facts is
improbable, and ‘that a recovery is very remote and unlikely.’” Twombly, 550 U.S. at 556
(quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). Defendants argue that Plaintiffs have
pleaded a “bare conclusion that it is impossible for a trapper to exercise ‘due care.’” [Doc. 17
at 23-24]. This Court does not agree. Plaintiffs assert that Defendants’ amendment of the
Cougar Rule will cause cougar trappers to trap and snare Mexican wolves without due care,
because it is impossible to modify cougar traps to avoid harming wolves. See [Doc. 1 at 20,
¶¶ 83-87]. Thus, although the special wolf rule provides that “due care includes . . . [m]odifying
or using appropriately sized traps, chains, drags, and stakes that provide a reasonable expectation
that the wolf will be prevented from either breaking the chain or escaping with the trap on the
wolf, or using sufficiently small traps” (50 C.F.R. § 17.84(k)(5)(iii)(B)), Plaintiffs allege that the
Cougar Rule allows trapping with traps that cannot be so modified (see Doc. 1 at 20).23
Therefore, Plaintiffs allege that licensing cougar trapping in and adjacent to the wolf recovery
area will cause wolves to be subjected to taking that is specifically prohibited by the special wolf
rule because cougar traps cannot be used with “due care . . . to avoid injury or death to a wolf”
(50 C.F.R. § 17.84(k)(5)(iii)). See [Doc. 1 at 19-20, ¶¶ 81-89]. Taking these allegations as true,
the Court concludes that the factual allegations made in Plaintiffs’ Complaint are enough to

23

The Cougar Rule (N.M. Admin. Code § 19.31.11.10(O)) does not impose any special restrictions on traps
used in the wolf recovery area; instead, it simply refers to existing trapping standards set forth in N.M. Admin. Code
§§ 19.32.2.10 and 19.32.2.11.

36

“nudge[] their claims across the line from conceivable to plausible” (Twombly, 550 U.S. at 570),
and, therefore, Plaintiffs have sufficiently pleaded their wolf claims to withstand a motion to
dismiss.

III. Conclusion
For the reasons stated above, the Court FINDS that Plaintiffs’ “Third Claim for Relief
(Illegal Take of Jaguar)” (Doc. 1 at 23-24, ¶¶ 111-115) should be dismissed because the
Complaint fails to sufficiently plead facts that establish Plaintiffs’ standing to assert that claim.
As to the remaining two claims in the Complaint, the Court FINDS that Defendants’ motion to
dismiss should be denied.
IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss Plaintiffs’
Complaint and Memorandum in Support Thereof (Doc. 17) is GRANTED with respect to
Plaintiff’s Third Claim for Relief, and that claim is hereby DISMISSED, without prejudice. The
motion is DENIED with respect to Plaintiffs’ First and Second Claims for Relief.
IT IS SO ORDERED.

_____________________________________
LOURDES A. MARTÍNEZ
UNITED STATES MAGISTRATE JUDGE
Presiding by Consent

37