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New Mexico Department of Game and Fish v. United States Department of Interior

United States Court of Appeals, Tenth Circuit

April 25, 2017

NEW MEXICO DEPARTMENT OF GAME AND FISH, Petitioner - Appellee,
v.
UNITED STATES DEPARTMENT OF THE INTERIOR; RYAN ZINKE, [*] in his official capacity as Secretary of the United States Department of the Interior; UNITED STATES FISH AND WILDLIFE SERVICE; JIM KURTH, [†] in his official capacity as Acting Director of the United States Fish and Wildlife Service; DR. BENJAMIN TUGGLE, in his official capacity as Southwest Regional Director for the United States Fish and Wildlife Service, Respondents, and DEFENDERS OF WILDLIFE; CENTER FOR BIOLOGICAL DIVERSITY; WILDEARTH GUARDIANS; NEW MEXICO WILDERNESS ALLIANCE, Defendants Intervenors - Appellants, and FOUNDATION TO PROTECT NEW MEXICO WILDLIFE; NEW MEXICO FARM AND LIVESTOCK BUREAU; NEW MEXICO CATTLE GROWERS ASSOCIATION, SPUR RANCH CATTLE CO. LLC; MOUNTAIN STATES LEGAL FOUNDATION; ASSOCIATION OF FISH AND WILDLIFE AGENCIES; STATE OF COLORADO; STATE OF ALABAMA; STATE OF ALASKA; STATE OF ARIZONA; STATE OF ARKANSAS; STATE OF IDAHO; STATE OF KANSAS; STATE OF MICHIGAN; STATE OF MONTANA; STATE OF NEBRASKA; STATE OF NEVADA; STATE OF NEW HAMPSHIRE; STATE OF OKLAHOMA; STATE OF SOUTH DAKOTA; STATE OF TEXAS; STATE OF UTAH; STATE OF WISCONSIN; STATE OF WYOMING; ROCKY MOUNTAIN ELK FOUNDATION; SAFARI CLUB INTERNATIONAL, Amici Curiae.

         Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:16-CV-00462-WJ-KBM)

          McCrystie Adams (James Jay Tutchton with her on the briefs), Defenders of Wildlife, Denver, Colorado, for Defendants Intervenors-Appellants.

          Rachel Heron, Attorney, United States Department of Justice, Environment and Natural Resources Division, Washington, D.C. (John C. Cruden, Assistant Attorney General; Andrew Mergen, Ellen Durkee, Meredith L. Flax, Bridget Kennedy McNeil, Clifford E. Stevens, Jr., and Andrew A. Smith, Attorneys, United States Department of Justice, Environment and Natural Resources Division, Washington, D.C.; and Ann Navarro and Justin Tade, Office of the Solicitor, United States Department of the Interior, with her on the briefs), for Respondents.

          Matthias L. Sayer, New Mexico Department of Game and Fish, Santa Fe, New Mexico (Paul S. Weiland, Benjamin Z. Rubin, Ashley J. Remillard, Nossaman LLP, Irvine, California, with him on the briefs), for Petitioner-Appellee.

          Kate Ferlic and Kristina Caffrey, Egolf Ferlic Harwood, LLC, Santa Fe, New Mexico, filed an amicus brief on behalf of Foundation to Protect New Mexico Wildlife.

          Kent Holsinger, Holsinger Law, LLC, Denver, Colorado, filed an amicus brief on behalf of New Mexico Farm and Livestock Bureau.

          M. Reed Hopper, Pacific Legal Foundation, Sacramento, California, filed an amicus brief on behalf of New Mexico Cattle Growers Association.

          Carol Bambery, Association of Fish and Wildlife Agencies, Washington, D.C., filed an amicus brief on behalf of Association of Fish and Wildlife Agencies.

          John I. Kittel, Mazur and Kittel, PLLC, Farmington Hills, Michigan, filed an amicus brief on behalf of Rocky Mountain Elk Foundation.

          Anna M. Seidman and Douglas S. Burdin, Safari Club International, Washington, D.C., filed an amicus brief on behalf of Safari Club International.

          Gina Cannan and Steven J. Lechner, Mountain States Legal Foundation, Lakewood, Colorado, filed an amicus brief on behalf of Spur Ranch Cattle Co. LLC and Mountain States Legal Foundation.

          Lisa A. Reynolds, Assistant Attorney General, Office of the Colorado Attorney General, Denver, Colorado (Cynthia Coffman, Attorney General; Frederick R. Yarger, Solicitor General; with her on the briefs) (together with Luther Strange, Attorney General of Alabama, Montgomery, Alabama; Jahna Lindemuth, Attorney General of Alaska, Juneau, Alaska; Mark Brnovich, Attorney General of Arizona, Phoenix, Arizona; Leslie Rutledge, Attorney General of Arkansas, Little Rock, Arkansas; Lawrence G. Wasden, Attorney General of Idaho, Boise, Idaho; Derek Schmidt, Attorney General of Kansas, Topeka, Kansas; Bill Schuette, Attorney General of Michigan, Lansing, Michigan; Tim Fox, Attorney General of Montana, Helena, Montana; Douglas J. Peterson, Attorney General of Nebraska, Lincoln, Nebraska; Adam Paul Laxalt, Attorney General of Nevada, Carson City, Nevada; Joseph A. Foster, Attorney General of New Hampshire, Concord, New Hampshire; E. Scott Pruitt, Attorney General of Oklahoma, Oklahoma City, Oklahoma; Marty J. Jackley, Attorney General of South Dakota, Pierre, South Dakota; Ken Paxton, Attorney General of Texas, Austin, Texas; Sean D. Reyes, Attorney General of Utah, Salt Lake City, Utah; Brad D. Schimel, Attorney General of Wisconsin, Madison, Wisconsin; Peter K. Michael, Attorney General of Wyoming, Cheyenne, Wyoming) filed an amicus brief on behalf of the States of Colorado, Alabama, Alaska, Arizona, Arkansas, Idaho, Kansas, Michigan, Montana, Nebraska, Nevada, New Hampshire, Oklahoma, South Dakota, Texas, Utah, Wisconsin and Wyoming.

          Before HOLMES, MATHESON, and McHUGH, Circuit Judges.

          McHUGH, Circuit Judge.

         These consolidated appeals arise from the district court's grant of a preliminary injunction to the New Mexico Department of Game and Fish (the "Department"). The injunction followed the release, without a state permit, of two Mexican gray wolf pups on federal land located in New Mexico by the United States Fish and Wildlife Service ("FWS"), an agency within the United States Department of the Interior ("Interior"). The district court's order enjoins Interior, FWS, and certain individuals in their official capacities from importing or releasing: (1) any Mexican gray wolves into the State without first obtaining the requisite state permits; and (2) any Mexican gray wolf offspring into the State in violation of prior state permits. Interior, FWS, Ryan Zinke, in his official capacity as Secretary of the Interior, Jim Kurth, in his official capacity as Acting Director of FWS, Dr. Benjamin Tuggle, in his official capacity as Southwest Regional Director for FWS (collectively "Federal Appellants"), and intervening defendants Defenders of Wildlife, Center for Biological Diversity, WildEarth Guardians, and New Mexico Wilderness Alliance (collectively "Intervenor Appellants") separately filed timely appeals contending the district court abused its discretion in granting the Department a preliminary injunction.

         Exercising jurisdiction under 28 U.S.C. § 1292, we reverse and vacate the district court's entry of a preliminary injunction.

         I. BACKGROUND

         A. Factual History[1]

         1. Mexican Gray Wolf Status and Recovery Efforts

         The Mexican gray wolf (Canis lupus baileyi) is the smallest, rarest, and southernmost occurring subspecies of the North American gray wolf (Canis lupus). See Endangered and Threatened Wildlife and Plants; Revision to the Regulations for the Nonessential Experimental Population of the Mexican Wolf, 80 Fed. Reg. 2512-01, 2514 (Jan. 16, 2015) (to be codified at 50 C.F.R. pt. 17). "The gray wolf . . . has been at the forefront of the movement to conserve endangered species for many years" because "[b]y the 1930s, wolves were nearly erased from the lower 48 states as a result of one of the most effective eradication campaigns in modern history." Humane Soc'y of the United States v. Jewell, 76 F.Supp.3d 69, 81 (D.D.C. 2014) (quoting Hope M. Babcock, The Sad Story of the Northern Rocky Mountain Gray Wolf Reintroduction Program, 24 Fordham Envtl. L. Rev. 25, 38 (2013)). These eradication efforts, initiated primarily to decrease the loss of livestock to wolf predation, included the trapping, shooting, and poisoning of wolves, and had a significant impact on the population of Mexican gray wolves in the United States. Largely as a result of these efforts, the Mexican gray wolf was thought to have been extirpated from its historic range by the 1970s.[2] WildEarth Guardians v. Ashe, No. CV-15-00019, 2016 WL 3919464, at *1 (D. Ariz. May 16, 2016) (citing 80 Fed. Reg. 2512-01).

         In an effort to preserve and restore the Mexican gray wolf population, the subspecies was first listed as endangered in 1976, under the Endangered Species Act of 1973 (the "Act"). Determination That Two Species of Butterflies Are Threatened Species & Two Species of Mammals Are Endangered Species, 41 Fed. Reg. 17, 736- 01, 17, 737-40 (Apr. 28, 1976) (to be codified at 50 C.F.R. pt. 17). The 1976 listing was later subsumed by a final rule promulgated by FWS in 1978, which listed the entire gray wolf species in North America, south of Canada and excepting Minnesota, as endangered under the Act.[3] Reclassification of the Gray Wolf in the United States and Mexico, With Determination of Critical Habitat in Michigan and Minnesota, 43 Fed. Reg. 9607-01, 9607-615 (Mar. 9, 1978) (to be codified at 50 C.F.R pt. 17); see also 50 C.F.R. § 17.11(h) (2016). Between 1977 and 1980, the United States and Mexico worked in partnership to capture the last remaining wild Mexican gray wolves in order to initiate a captive breeding program referred to as the Mexican Wolf Species Survival Plan. 80 Fed. Reg. 2512-01 at 2515. As its name suggests, the two nations established the breeding program to prevent the extinction of the subspecies and to reestablish the Mexican wolf in the wild by breeding the wolves in captivity and eventually releasing them or their offspring into the wild. Id.

         In 1982, FWS developed and adopted the first Mexican Wolf Recovery Plan to assist in the conservation and survival of the Mexican gray wolf, as required by 16 U.S.C. § 1533(f)(1).[4] This plan provides detailed information regarding the history and status of the Mexican gray wolf, and sets forth numerous recommendations and steps to be taken to enhance the prospect of the wolves' recovery. In detailing the objectives of the plan, FWS did not include criteria for defining when the subspecies' recovery would be sufficient to merit delisting, as is generally required by 16 U.S.C. § 1533(f)(1)(B)(ii). Instead, FWS indicated it foresaw "no possibility for [a] complete delisting of the Mexican wolf" due to the depressed state of its population. Accordingly, FWS focused its efforts on the conservation and survival of the subspecies, and the eventual reintroduction of the subspecies into the wild.

         To that end, FWS determined its primary objectives to be "maintaining a captive breeding program and re-establishing a viable, self-sustaining population of at least 100 Mexican wolves in the middle to high elevations of a 5, 000-square-mile area within the Mexican wolf's historic range."[5] In keeping with these stated objectives, FWS promulgated a final rule under Section 10(j) of the Act in 1998 ("1998 10(j) Rule") establishing an experimental wild population of the Mexican gray wolf. Endangered and Threatened Wildlife and Plants; Establishment of a Nonessential Experimental Population of the Mexican Gray Wolf in Arizona and New Mexico, 63 Fed. Reg. 1752-01, 1752 (Jan. 12 1998) (to be codified at 50 C.F.R. pt. 17). FWS designated this population as "nonessential" to the continued existence of the species.[6] Id. In addition to specifying population management guidelines, and procedures for the "take" of individual wolves, the 1998 10(j) Rule allowed FWS to reintroduce Mexican wolves to the Blue Range Wolf Recovery Area-an area consisting of the entire Apache and Gila National Forests in east-central Arizona and west-central New Mexico.[7] Id. at 1752-54, 1764-65. The 1998 10(j) Rule also "authorized the release of 14 family groups of wolves [into the recovery area] over a period of five years." WildEarth Guardians, 2016 WL 3919464 at *1.

         Since adoption of the rule, FWS has released a number of Mexican wolves into the Blue Range Wolf Recovery Area. But progress in meeting the wild population objective was slower than projected. See 80 Fed. Reg. 2512-01 at 2516, 2551. By year-end 2015, FWS estimated there were only ninety-seven Mexican wolves in the wild population. And the recovery program has run into barriers to increasing that number, including decreased genetic diversity and inbreeding-which Appellants allege has decreased the reproduction rate of the wolves and may compromise the health of the wild population.

         To address these and other issues, in June 2013, FWS proposed to delist the gray wolf, list the Mexican gray wolf subspecies as endangered, and revise the 1998 10(j) Rule. Id. at 2513. After it issued an Environmental Impact Statement for the proposed revisions, and the requisite notice and comment periods concluded, FWS promulgated its finalized revision to the 1998 10(j) Rule ("Revised 10(j) Rule") on January 16, 2015. See id. at 2512-13. The Revised 10(j) Rule, like the 1982 Mexican Wolf Recovery Plan and the 1998 10(j) Rule, does not purport to establish a plan to bring the Mexican gray wolf population to full recovery. Rather, it aims to increase the nonessential experimental wild population in order "to contribute to the future population goal . . . for the range-wide recovery of the Mexican wolf, " once a comprehensive recovery goal is established and delisting is foreseeable.[8] Id. at 2517. However, among other changes, the Revised 10(j) Rule triples the population objective for the experimental population, from 100 to between 300 and 325 wolves. Id. at 2514-17, 2548-49. It also increases the Mexican Wolf Experimental Population Area ("MWEPA") and substantially expands the boundaries in New Mexico and Arizona where Mexican gray wolves are permitted to inhabit and be released. In addition, it eliminates the Blue Range Wolf Recovery Area and replaces it with three distinct zones, each with separate guidelines governing the release, translocation, and occupancy of Mexican gray wolves within the zone. Id. at 2520, 2522-23. Finally, the Revised 10(j) Rule modifies procedures for New Mexico and Arizona to obtain authorization to remove Mexican wolves from the MWEPA where wolf predation is determined to have an unacceptable impact[9] on a wild ungulate herd.[10] Id. at 2516-25, 2561; see also 50 C.F.R. § 17.84(k).

         2. New Mexico Release and Importation Permits

         Federal Appellants allege the State and the Department worked collaboratively with FWS to conserve the Mexican gray wolf until 2011. At that time, the Department formally suspended its participation in the Mexican Wolf Recovery Program and withdrew as a partner agency and signatory of the Mexican Wolf Memorandum of Understanding, which it had signed in both 2003 and 2010. Thereafter, the Department requested FWS to apply for and receive a state permit, in accordance with state regulations, before releasing or importing any wolves within the State's borders.[11] New Mexico law prohibits the importation and release of non-domesticated animals, including Mexican gray wolves, without a permit from the Department. See N.M. Code R. § 19.35.7.8; id. § 19.35.7.19; id. § 19.31.10.11.

         In accordance with 43 C.F.R. § 24.4(i)(5), [12] which directs federal agencies within Interior to comply with state permitting requirements when reintroducing wildlife except in certain instances, FWS filed two separate permit applications with the Department-one on April 1, 2015, and the other on May 6, 2015. In its permit applications, FWS sought authorization to release no more than twelve wolves within the State. FWS also sought a waiver from conditions set forth in an importation permit issued by the Department in January 2015, which allowed FWS to import two Mexican gray wolves into the State, but "prohibited [FWS] from releasing these wolves and any offspring and/or associated pups without prior written permission from the New Mexico Department of Game and Fish." On June 2, 2015, the Director of the Department denied both permit applications. As grounds for the denials, the Director indicated FWS had not demonstrated that the intended releases were provided for in a state or federal resource or species management plan or strategy, as required by Section 19.35.7.19(A)(3) of New Mexico's Administrative Code, and therefore the Director was unable to determine if such releases would conflict with state conservation management efforts. See N.M. Code R. § 19.35.7.19(A)(3) (indicating that in order to obtain a permit to release a non-domesticated animal, an applicant must "demonstrate that the intended release is provided for in state or federal resource or species management plans or strategies (CWCS)"); id. § 19.35.7.19(C) ("The director shall not approve any release permit that conflicts with current conservation management."). FWS appealed the decision to the New Mexico Game Commission ("Commission") on June 22, 2015, contending that: (1) the Director had failed to cite any state conservation management plan with which the requested release permits might conflict; (2) the intended releases were provided for in FWS regulations and management plans, including the Revised 10(j) Rule; and (3) FWS is not required to revise its recovery plan under the Act or State statutes or regulations. The Commission rejected FWS's arguments and upheld the Director's denial of the permits by issuing a Final Decision on September 29, 2015, in which it concluded, among other things, that the Revised 10(j) Rule was not a sufficient "management plan" under State regulations.

         3. Release of Wolves Without a State Permit

         In response to the Commission's Final Decision, FWS informed the Department on October 14, 2015, that it intended to move forward with its wolf recovery efforts and continue the reintroduction and release of Mexican wolves within the State. In its letter informing the Department of its decision, FWS indicated that, consistent with 43 C.F.R. § 24.4(i)(5)(i), the Secretary of Interior had determined that compliance with the state permitting requirements would prevent the Secretary from carrying out his responsibilities under the Act.[13] FWS thus concluded it had independent legal authority under federal statutes and regulations to import, export, hold, and transfer wolves within the State, and to release wolves onto federal lands within the State without a state permit.

         Sometime thereafter, FWS issued an Initial Release and Translocation Plan for 2016 under the Mexican Wolf Blue Range Reintroduction Project ("2016 Release Plan"). This plan identified several specific steps to release, translocate, and cross-foster Mexican wolves in Arizona and New Mexico.[14] FWS began implementing that plan by cross-fostering two Mexican wolf pups on federal land within the State in April or May 2016. It did so without first applying for or obtaining a state permit. As a result of these unpermitted releases and FWS's decision to continue the reintroduction of wolves on federal lands within the State through implementation of the 2016 Release Plan, the Department and Commission provided Federal Appellants a 60-day notice of their intent to initiate litigation on April 20, 2016.

         B. Procedural History

         On May 20, 2016, the Department filed a Complaint for Declaratory Judgment and Injunctive Relief against Federal Appellants, and simultaneously filed a Motion for Preliminary Injunction and Temporary Restraining Order requesting the district court to temporarily halt further releases of wolves by FWS within the State's borders. After conducting a hearing on the motion on May 26, 2016, the district court issued a memorandum opinion and order on June 10, 2016, in which it determined the Department was entitled to injunctive relief. Accordingly, the district court entered an order enjoining Federal Appellants from importing or releasing any Mexican wolves in the State without first obtaining permits from the Department. The order also enjoined Federal Appellants from importing or releasing Mexican wolf offspring in violation of previously issued state permits. But the district court denied the Department's request that Federal Appellants be required to capture and remove any Mexican wolves that had previously been imported and released in violation of state law.

         On June 6, 2016, Intervenor Appellants filed a Motion to Intervene, which the district court subsequently granted on July 13, 2016. On July 28, 2016, Intervenor Appellants filed a Notice of Appeal and shortly thereafter Federal Appellants filed their Notice of Appeal.

         On appeal, Appellants collectively challenge the district court's findings on all four preliminary injunction factors. Appellants first contend the district court erred by holding the Department had sufficiently established a significant risk of irreparable injury. They argue this finding was an abuse of discretion because the Department failed to provide any factual or legal basis establishing that its wildlife management efforts would be irreparably harmed or that its sovereignty would be threatened by FWS's anticipated releases. Second, Appellants maintain the district court made legal errors when determining the Department would likely succeed on the merits of both its federal and state law claims, including (1) failing to accord deference to Interior's interpretation of its own regulation; (2) incorrectly interpreting federal statutes and regulations; and (3) failing to bar the Department's state law claims on the basis of sovereign immunity, intergovernmental immunity, or preemption. ...


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