WildEarth Guardians v. Zinke

          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 ...