United States District Court, D. Arizona
ORDER
Honorable Jennifer G. Zipps United States District Judge.
Plaintiffs
have filed the instant action pursuant to the Endangered
Species Act (ESA), 16 U.S.C. § 1534, and the
Administrative Procedure Act (APA), 5 U.S.C. § 706, to
challenge the November 2017 Final Mexican Wolf Recovery Plan
(Plan) issued by the U.S. Fish and Wildlife Service (USFWS).
(Doc. 22.) Plaintiffs allege the Plan is arbitrary and
capricious and not in accordance with the ESA and APA because
USFWS did not provide a reasonable explanation as to why the
findings and criteria included in the Plan “differ[]
significantly from the 2012 draft recovery plan for Mexican
wolves.” (Doc. 22 at ¶ 56.) Plaintiffs also allege
that the Plan is unlawful because it fails to incorporate a
description of site-specific management action necessary to
conserve the Mexican wolves; lacks objective measurable
criteria necessary for delisting (recovery); and does not
rely on the best available science. (Id. at
¶¶ 61-80.) Plaintiffs seek declaratory judgment
that the Plan violates the law. (Id. at ¶ A.)
Plaintiffs also seek to have the Plan remanded to USFWS with
instructions for the agency to develop a new recovery plan
that complies with the ESA and APA. (Id. at ¶
B)
Now
pending before the Court is a Motion to Intervene in Support
of Defendants (Doc. 23) and Memorandum in Support of Motion
to Intervene (Doc. 23-1) filed by the New Mexico Department
of Game and Fish (Department). The Department seeks to
intervene as a matter of right under Rule 24(a)(2) of the
Federal Rules of Civil Procedure. Alternatively, the
Department seeks permissive intervention under Rule
24(b)(1)(B) “to defend the validity and adequacy of the
. . . Plan.”[1] (Doc. 23-1 at 14.) The Department
indicates in its Motion that Plaintiffs and Defendants
“take no position on the Department's Motion
pending review of the Motion once it is filed. (Docs. 23 at
2.) Defendants subsequently responded that they “take
no position regarding whether [the Department] . . . should
be granted intervention in this matter.” (Doc. 26.) The
time for filing a response has expired. Plaintiffs did not
file a response. For the following reasons, the Court will
grant the Department's Motion.
Background
Historically,
the Mexican wolf inhabited areas in southern Arizona, New
Mexico, and parts of northern Mexico. (Doc. 23-1 at 1 (citing
80 Fed. Reg. 2488, 2489 (Jan. 16, 2015).) In the United
States, the Mexican wolf preys primarily on elk, deer, and
other ungulate species. (Id. at 2 (citing 80 Fed.
Reg. at 2492).) “As of 2015, roughly half of all of the
Mexican wolves in the wild were found in New Mexico.”
(Doc. 23-1 at 5 (citing N.M. Dep't of Game and Fish
Wildlife Mgmt. and Fisheries Mgmt. Div., Threatened and
Endangered Species of New Mexico, 11 (Oct. 5, 2016).)
In
support of its Motion, the Department submits the Declaration
of Alexandra Sandoval, the Department's Director since
2014 and an employee of the Department since 1994. (Doc. 23-2
at ¶¶ 2, 4.) As Director of the Department,
Sandoval also serves as Secretary to the New Mexico State
Game Commission. (Id. at ¶ 3.) Sandoval states
that the Department has been contributing time and funds to
the wolf recovery effort since the latter part of 1998.
(Id. at ¶ 7.) “The various wolf-focused
projects have cost in excess of $1.2 million dollars since
that time. This amount includes salaries for personnel
working on wolf issues, helicopter rentals to assist in
capture and collaring of wolves, and hiring horses to
translocate wolves in wilderness areas.” (Id.
at ¶ 9.) Although the Department withdrew from recovery
program in 2011, “the Department continued to have
employees working on the rule issued by USFWS in January 2015
that revised the experimental population areas, as well as
some of the regulations guiding the management of the
experimental population ([]10(j) Rule[]).”
(Id. at ¶ 11; see also Doc. 23-1 at
4.) Additionally, Department employees assisted in preparing
the environmental impact statement associated with the 10(j)
Rule from 2013-2015. (Id.)
Three
Department employees also worked with the USFWS to help
develop the Plan at issue in this action. (Id. at
¶ 12.) “The Department has aided in providing the
science necessary for developing the recovery plan, including
authoring and peer reviewing studies and articles on the
Mexican wolf, and permitting the capture, relocation and
release of wolves on New Mexico Land.” (Id. at
¶ 13.) Law enforcement officers from the Department have
also pursued and assisted other agencies in pursuing criminal
charges for the illegal killing of Mexican wolves.
(Id.)
In
December 2017, the New Mexico State Game Commission
(Commission) voted to approve the Plan. (Id. at
¶ 14.) The Commission also voted “to allow all the
wolf pups that USFWS originally sought to cross-foster in
Arizona or New Mexico, to be placed in New Mexico if it was
in the best interest of the species.” (Id. at
¶ 15.) The Department has also supported the Plan by
working with USFWS to allow for introduction of pups and
issuing permits for moving problem wolves in and out of New
Mexico, as well as issuing other permits required to manage
the wild population. (Id. at ¶ 16.)
Sandoval
stresses that “[t]he management of the Mexican wolf
does not occur in a vacuum.” (Id. at ¶
18.) The Department must manage the wolf population “in
conjunction with the ungulate population that constitute the
wolf's prey base to ensure the health of both
populations.” (Id.) Further, “[u]ngulate
populations must also be sustainably managed to allow for
recreational harvest opportunities for hunters, which provide
an important revenue stream to the Department.”
(Id.) “Funds from hunting and fishing licenses
are, in turn, used in part to support conservation
activities, including habitat restoration and habitat
management, for a variety of species, including the Mexican
wolf.” (Id.)
According
to Sandoval, “decisions relating to recreational
harvest opportunities in the wolf habitat, as well as other
ungulate population management measures, are impacted by the
[P]lan.” (Id. at ¶ 19.) Thus,
“[t]he Department's ability to manage its
properties and wildlife is greatly impacted by the . . .
[P]lan.” (Id.)
Discussion
Intervention
as of right
Rule 24
of the Federal Rules of Civil Procedure is construed broadly
in favor of intervention. Donnelly v. Glickman, 159
F.3d 405, 409 (9th Cir. 1998). An applicant seeking to
intervene as a matter of right under Rule 24(a)(2) must
satisfy the following four-part test:
(1) the motion must be timely; (2) the applicant must claim a
“significantly protectable” interest relating to
the property or transaction which is the subject of the
action; (3) the applicant must be so situated that the
disposition of the action may as a practical matter impair or
impede its ability to protect that interest; and (4) the
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