throbber
Case 2:21-cv-00611-GBW-CG Document 1 Filed 07/01/21 Page 1 of 19
`
`Karen Budd-Falen (N.M Bar 148401)
`Katherine Merck (Pro hac vice pending)
`BUDD-FALEN LAW OFFICES, LLC
`300 East 18th Street
`Post Office Box 346
`Cheyenne, WY 82003
`(307)632-5105 Telephone
`(307)637-3891 Telefax
`Karen@buddfalen.com
`Katherine@buddfalen.com
`
`David M. Pato (N.M. Bar 15622)
`Adren Nance (N.M. Bar 15617)
`NANCE, PATO AND STOUT LLC
`Post Office Box 772
`Socorro, NM 87801-0772
`(575) 838-0911 Telephone
`(866) 808-1165 Telefax
`Dave@npslawfirm.com
`Adren@npslawfirm.com
`
`
`
`
`IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
`NEW MEXICO
`
`
`
`
`
`County Commissioners of the
`
`
`
`County of Sierra; the
`
`
`
`
`Hillsboro Pitchfork Ranch L.L.C.; the
`
`
`Salopek Ranch; William R. Lindsey;
`
`
`and the High Seven Ranch
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Petitioners,
`
`
`
`
`
`
`
`
`
`
`
`
`v.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`THE UNITED STATES DEPARTMENT
`OF THE INTERIOR, DEB HAALAND,
`
`
`
`
`in her official capacity as Interior Secretary;
`UNITED STATES FISH and WILDLIFE SERVICE,
`an agency of the Department of the Interior;
`
`
`MARTHA WILLIAMS, in her official capacity as
`
`Principal Deputy Director, United States Fish
`
`
`and Wildlife Service; AMY LUEDERS,
`
`
`in her official capacity as Regional Director,
`
`
`Region 2 of the United States Fish and Wildlife Service;
`and Brady McGee, in his official capacity as the
`
` Mexican Wolf Recovery Coordinator.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Respondents.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`) Civil No. ____
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`1
`
`
`

`

`Case 2:21-cv-00611-GBW-CG Document 1 Filed 07/01/21 Page 2 of 19
`
`
`
`
`
`
`PETITION FOR REVIEW OF FINAL AGENCY ACTION
`
`Petitioners County Commissioners of the County of Sierra, New Mexico; the Hillsboro
`
`Pitchfork Ranch L.L.C.; the Salopek Ranch; William R. Lindsey; and the High Seven
`
`Ranch (“Petitioners”) files this Petition for Review against the Respondents, U.S.
`
`Department of the Interior and the U.S. Fish and Wildlife Service, and Deb Haaland as
`
`Interior Secretary, Martha Williams as Principal Deputy Director of the U.S. Fish and
`
`Wildlife Service, Amy Lueders as Regional Director for Region 2 of the U.S. Fish and
`
`Wildlife Service and Brady McGee as Mexican Wolf Recovery Coordinator, all in their
`
`official capacities (collectively Respondents), related to the final decision authorizing the
`
`2021 release and translocation of “known problem” Mexican wolves in Sierra County,
`
`New Mexico. This decision and subsequent action was completed without any analysis
`
`and without adequate public notice or input as required by the National Environmental
`
`Policy Act (NEPA).
`
`INTRODUCTION
`
`1. This is a petition for review of agency action by Petitioners against the U.S.
`
`Department of the Interior and U.S. Fish and Wildlife Service as well as Interior
`
`Secretary Deb Haaland, Martha Williams, Amy Lueders, and Brady McGee in
`
`their official capacities. Respondents violated the NEPA, as well as the
`
`Administrative Procedure Act (“APA”) (5 U.S.C. § 702 et seq.) by failing to
`
`complete any analysis pursuant to the National Environmental Policy Act
`
`regarding the proposed translocation of male wolf (M 1693) and female wolf (F
`
`2
`
`
`

`

`Case 2:21-cv-00611-GBW-CG Document 1 Filed 07/01/21 Page 3 of 19
`
`1728) (collectively “problem wolves”) onto private property in Sierra County, New
`
`Mexico, a mere five (5) miles from the closest ranching operation. Male wolf M
`
`1693 is designated a “problem wolf” by Respondents because he has seven (7)
`
`documented and confirmed livestock depredations and one (1) documented
`
`adverse human interaction in a neighboring New Mexico county. Female wolf F
`
`1728 is also designated a problem wolf by Respondents because she has three (3)
`
`documented and confirmed livestock depredations in a neighboring New Mexico
`
`county.
`
`2. Respondents further violated agency requirements and policy by either failing to
`
`provide adequate notice to landowners and permittees within a 10-mile radius or
`
`failing to provide any notice at all to landowners within a 10-mile radius prior to
`
`conducting the translocation of these problem Mexican wolves who are known to
`
`kill livestock and who have had one adverse human interaction. While a form
`
`letter was emailed “To Whom it May Concern:” on or about May 3, 2021, this
`
`letter failed to include any notification that the wolves to be released in Sierra
`
`County, New Mexico, had a known and documented behavior of livestock kills
`
`and that the male wolf (M 1693) had previously threatened one human in a non-
`
`captive environment. By withholding this vital information, the May 3, 2021,
`
`notification letter is wholly inadequate and the request for public comment
`
`contained in the letter was a violation of law and policy. Additionally, at least one
`
`landowner who fit the Respondents’ criteria for receiving the notification
`
`received no notification at all, again in violation of FWS policy and procedure.
`
`JURISDICTION
`
`3
`
`
`

`

`Case 2:21-cv-00611-GBW-CG Document 1 Filed 07/01/21 Page 4 of 19
`
`3. This Court has jurisdiction over this action pursuant 5 U.S.C. § 702 et seq.
`
`(Administrative Procedure Act).
`
`4. Petitioners have suffered a legal wrong and are adversely affected or aggrieved by
`
`the Respondents’ final agency actions and inactions and are entitled to seek
`
`judicial review pursuant to 5 U.S.C. §§ 702 and 704.
`
`5. The Respondents’ final agency actions and inactions are also reviewable in
`
`accordance with Olenhouse v. Commodity Credit Corp., 42 F.3d 1560 (1994).
`
`6. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(e)(2) as the
`
`Respondents have translocated the problem wolves and their pups into pens on
`
`private land on the Ladder Ranch located in Sierra County, New Mexico.
`
`7. This case is ripe for judicial review. According to the Ladder Ranch Reserve 2021
`
`Wolf Translocation Plan, “In March 2021, the U.S. Fish and Wildlife Service
`
`authorized the translocation of M 1693 and F 1728 and their dependent pups . . .
`
`.” This “authorization is a “final agency action” as required by 5 U.S.C. §§ 702,
`
`704. Upon information and belief, the problem wolves were transported to the
`
`release pens on the Ladder Ranch in Sierra County, New Mexico on or about
`
`June 17, 2021.
`
`PARTIES
`
`8. Petitioner, Sierra County, New Mexico, was established by the New Mexico
`
`Legislature in 1917, and its boundaries defined by NMSA 1978, Section 4-27-2
`
`(1917).
`
`9. The Board of County Commissioners of the County of Sierra exercises the powers
`
`of the County as a body politic and corporate pursuant to NMSA 1978, Section 4-
`
`38-1(1884).
`
`4
`
`
`

`

`Case 2:21-cv-00611-GBW-CG Document 1 Filed 07/01/21 Page 5 of 19
`
`10. The New Mexico Legislature has granted the Counties those powers to provide
`
`for the safety, preserve the health, promote the prosperity and improve the
`
`morals, order, comfort and convenience of any county or its inhabitants. NMSA
`
`1978 § 4-37-1 (1975).
`
`11. On June 29, 2021, the Board of County Commissioners for Sierra County
`
`authorized this litigation on their behalf.
`
`12. Petitioner Hillsboro Pitchfork Ranch L.L.C. is located adjacent to and north of the
`
`community of Hillsboro, Sierra County, New Mexico. The Ranch is owned by
`
`fourth-generation ranchers Kathy McKinney and Robert Cunningham. The north
`
`boundary of the Pitchfork Ranch is adjacent to the Ladder Ranch and
`
`approximately 9.2 miles from the Mexican wolf release site. The Pitchfork Ranch
`
`shares a common boundary with the Ladder Ranch of approximately four miles.
`
`The Pitchfork Ranch is a 225 head cow/calf operation, meaning that Petitioner
`
`has a permanent herd of livestock to produce and raise calves for sale.
`
`13. Petitioner Salopek Ranch is a ranch of approximately 50 sections of private land,
`
`with a small portion of State land that is directly adjacent to the Ladder Ranch.
`
`The Salopek Ranch is a working cattle ranch that maintains approximately 300
`
`heard of cattle on their private property and State leased land. David Salopek
`
`and his wife raised their children on the ranch. Despite being directly adjacent to
`
`the Ladder Ranch and even though Petitioner Salopek Ranch’s livestock graze
`
`less than three miles from the release site, the owner of the Salopek Ranch did
`
`not receive notification of the proposed release of problem wolves from the
`
`Respondents. Currently, Petitioner Salopek’s livestock are grazing adjacent to
`
`5
`
`
`

`

`Case 2:21-cv-00611-GBW-CG Document 1 Filed 07/01/21 Page 6 of 19
`
`the release site and based on the grazing rotation for the Salopek Ranch, are
`
`scheduled to remain in that pasture until the fall.
`
`14. William R. Lindsey is the lessee and operator of a ranch that includes the Forest
`
`Service Kingston allotment. He and his wife raised their children on the ranch
`
`and his grandchildren come to gather cattle, check water, repair fences and
`
`perform other ranch work. Petitioner’s property abuts the Ladder Ranch and
`
`Petitioner is currently grazing between 130 and 150 head of livestock within ¼
`
`mile of the Ladder Ranch and 4 miles from the wolf release site.
`
`15. Petitioner High Seven Ranch consists of private land and the North Palomas
`
`Forest Service grazing allotment and provides income for 3 (three) families.
`
`Petitioner grazes approximately 132 head of cattle and 4 (four) horses/mules on
`
`his ranch. Petitioner borders the Ladder Ranch and the High Seven Ranch is
`
`located approximately 5 (five) miles from the wolf release site.
`
`16. Respondent Department of the Interior is an agency of the United States.
`
`Congress has charged the Department with administering the Endangered
`
`Species Act (ESA) for terrestrial species. The Department of the Interior is
`
`responsible for the Mexican wolf experimental nonessential population including
`
`the translocation of Mexican wolves.
`
`17. Respondent Deb Haaland is the Secretary of the United States Department of the
`
`Interior. She oversees the Department’s administration of the ESA, including the
`
`translocation of Mexican wolves and is sued in her official capacity.
`
`18. Respondent United States Fish and Wildlife Service (FWS) is an agency of the
`
`Department of the Interior. The FWS has been delegated responsibility by the
`
`Secretary of the Interior for the day-to-day administration of the ESA, including
`
`6
`
`
`

`

`Case 2:21-cv-00611-GBW-CG Document 1 Filed 07/01/21 Page 7 of 19
`
`management of threatened and endangered terrestrial species. The FWS is
`
`specifically responsible for the Mexican wolf experimental nonessential
`
`population and the translocation of Mexican wolves.
`
`19. Respondent Amy Lueders is the Southwest Regional Director of the FWS. She
`
`oversees the FWS’s administration of the ESA within Region 2, which includes
`
`the State of New Mexico, and is sued in her official capacity.
`
`20. Respondent Brady McGee is the Mexican Wolf Recovery Coordinator for the
`
`FWS. He oversees the FWS’s administration of the Mexican Grey Wolf Recovery
`
`Program, including the translocation of Mexican wolves and is sued in his official
`
`capacity.
`
`STATEMENT OF FACTS
`
`21. The Mexican wolf was originally listed as an endangered species in New Mexico,
`
`Arizona and Texas pursuant to the ESA on April 28, 1976. 41 Fed. Reg. 17736 –
`
`17740 (April 28, 1976).
`
`22. Region 2 of the FWS was responsible for implementing the Mexican Gray Wolf
`
`Recovery Program based upon that listing.
`
`23. In 1978, the FWS listed the entire gray wolf species as endangered under the
`
`species name Canis lupus. That endangered species listing completely subsumed
`
`the 1976 Mexican wolf listing into the larger listing. 43 Fed. Reg. 9607 (March 9,
`
`1978). As stated by the FWS, "the grey wolf (Canis lupus) group in Mexico and
`
`the coterminous States of the United States other than Minnesota, is being
`
`considered as one 'species,' and the grey wolf group in Minnesota is being
`
`considered as another group." Id. at 9610.
`
`7
`
`
`

`

`Case 2:21-cv-00611-GBW-CG Document 1 Filed 07/01/21 Page 8 of 19
`
`24. The FWS approved a Recovery Program for the species Canis lupus in 1982,
`
`which included a captive breeding component for the wolves in Arizona and New
`
`Mexico. The Recovery Plan established a prime objective “to conserve and ensure
`
`survival of the Mexican gray wolves by maintaining a captive breeding program
`
`and reestablishing a viable, self-sustaining population of at least 100 Mexican
`
`wolves in a 5,000 square mile area within the subspecies’ historic range.”
`
`25. The first release of those captive-bred wolves into the wild occurred in 1998 as
`
`an experimental nonessential ("ENE") population pursuant to the ESA § 10(j)
`
`(ENE 10(j) rule). 63 Fed. Reg. 1752 (Jan. 12, 1998).
`
`26. The ENE designation for the Mexican wolf contained a component allowing for
`
`the release of captive born Mexican wolves into an area known as the Blue Range
`
`Wolf Recovery Area (“BRWRA”). The original BRWRA contained a "primary"
`
`and "secondary" recovery zone. 63 Fed. Reg. 1752 (January 12, 1998). Under the
`
`original program, Mexican wolves were only released into the primary recovery
`
`zone of the BRWRA in Arizona, an area of 737,857 acres. No Mexican wolves
`
`were released in New Mexico.
`
`27. Under the original program, Mexican wolves were only allowed to disperse into
`
`the BRWRA. If wolves traveled outside the BRWRA, they were trapped or
`
`captured and returned to the BRWRA. 63 Fed. Reg. 1752, 1754, 1758 (January 12,
`
`1998).
`
`28. In 2000, the FWS issued a Final Environmental Assessment (EA) and Finding
`
`of No Significant Impact (FONSI) of the Translocation of Mexican Wolves
`
`Throughout the Blue Range Wolf Recovery Area in Arizona and New Mexico.
`
`February 10, 2000 (USFWS 2000). As noted in the title, this NEPA document
`
`8
`
`
`

`

`Case 2:21-cv-00611-GBW-CG Document 1 Filed 07/01/21 Page 9 of 19
`
`solely analyzed the translocation of Mexican wolves on Forest Service land within
`
`the Blue Range Wolf Recovery Area.
`
`29. According to that EA, “When there are persistent, unresolvable problems, FWS
`
`has some discretion in designating a “problem wolf,” within the parameters
`
`defined within the nonessential experimental rule and interagency management
`
`plan. Under certain circumstances, those animals repeatedly involved in
`
`livestock depredation would be considered “problem wolves” and would be
`
`permanently removed from the wild population in accordance with the rule and
`
`plan.” Id. p. 14.
`
`30. There is no other mention of “problem wolves” in that document or appendices.
`
`31. According to the FONSI supporting the decision dated March 17, 2000,
`
`translocated wolves would also be released in the Gila Wilderness.
`
`32. In 2012, the FWS issued an ESA "12-month finding" stating that listing the
`
`Mexican wolf as a subspecies or a distinct population segment ("DPS") was not
`
`warranted because the species was already being protected as endangered. 77
`
`Fed. Reg. 61375 – 61381 (October 9, 2012).
`
`33. On June 13, 2013, the FWS announced its intent to amend the 1998 ENE 10(j)
`
`rule for the Mexican wolf; that amendment would be accompanied by an analysis
`
`pursuant to the NEPA. 78 Fed. Reg. 35719 (June 13, 2013).
`
`34. Such NEPA analysis, in this case an Environmental Impact Statement (EIS), was
`
`completed and released in November 2014.
`
`35. According to the 2014 Final EIS, “problem wolves mean Mexican wolves that,
`
`for purposes of management and control by the Service or its designated agent(s),
`
`are: (i) Individuals or members of a group or pack (including adults, yearlings,
`
`9
`
`
`

`

`Case 2:21-cv-00611-GBW-CG Document 1 Filed 07/01/21 Page 10 of 19
`
`and pups greater than 4 months of age) that were directly involved in a
`
`depredation on lawfully present domestic animals; (ii) Habituated to humans,
`
`human residents, or other facilities regularly occupied by humans; or (iii)
`
`Unprovoked and aggressive towards humans.” 2014 Final Environmental Impact
`
`Statement at p. xiv.
`
`36. The Final EIS refers to “problem wolves” 23 times. The Final EIS does not refer
`
`to the translocation of “problem wolves” such as those that were directly involved
`
`in numerous depredation incidents of lawfully protected domestic animals or
`
`who displayed unprovoked and aggressive behavior towards humans.
`
`37. Based on the 2014 Final EIS, a Record of Decision supporting the Revisions to
`
`the Regulations for the Nonessential Experimental Population of the Mexican
`
`Wolf was signed on January 6, 2015.
`
`38. The Record of Decision does not discuss translocating “problem wolves.”
`
`39. On January 16, 2015, the Respondents released the Final Revision to the
`
`Regulations for the Nonessential Experimental Population of the Mexican Wolf.
`
`80 Fed. Reg. 2512 (January 16, 2015).
`
`40. According to the 2015 final rule, Mexican wolves can be released on private land
`
`“under a Service- and State-approved management agreement with private
`
`landowners.” Id. at 2520, 2525, 2559.
`
`41. Out of the 23 times “problem wolves” are mentioned in the 2015 Final 10(j) Rule,
`
`the final rule only uses the words translocation and problem wolves together in
`
`one place. Id. at 2562.
`
`42. The final rule states that the management of problem wolves will be addressed
`
`in a manner consistent with a Service-approved management plan. Id. at 2530.
`
`10
`
`
`

`

`Case 2:21-cv-00611-GBW-CG Document 1 Filed 07/01/21 Page 11 of 19
`
`43. Upon information and belief, the “service-approved management plan” was not
`
`analyzed as required by NEPA, nor was the public given the opportunity to
`
`comment on the “management plan.”
`
`44. With regard to the specific wolves proposed to be translocated, male wolf M
`
`1693 was not born into the wild but was a cross-fostered pup put into the Elk
`
`Horn Pack that was denning in Arizona. The Elk Horn Pack came from Arizona
`
`to New Mexico and onto the Sometime Creek Ranch in late 2018 or early 2019.
`
`On March 14, 2019, the first livestock depredation was assigned to Elk Horn Pack
`
`in New Mexico, that included M 1693 who was uncollared at the time. In total,
`
`depredations on the Sometime Creek Ranch included four (4) confirmed Mexican
`
`wolf depredations assigned to uncollared wolves in the Elk Horn Creek Pack
`
`which included M 1693. The Elk Horn Pack was assigned to 11 confirmed and
`
`probable wolf depredations.
`
`45. On or about April 25, 2019, M 1693 was trapped by the United States
`
`Department of Agriculture/Animal and Plant Health Inspection Service and
`
`collared by the FWS as M 1693.
`
`46. Once captured and collared, M 1693 was put in confinement until Respondents
`
`again released the wolf into the southern end of Catron County, New Mexico on
`
`the Gila Flat on June 14, 2019.
`
`47. Since its second release into the wild, M 1693 and its uncollared mate were
`
`determined to have been involved in at least seven (7) additional depredation
`
`incidents with livestock between February, 2021 and the end of March 2021 when
`
`the Respondents captured M 1693 and his mate, which is now collared and
`
`known as F 1728.
`
`11
`
`
`

`

`Case 2:21-cv-00611-GBW-CG Document 1 Filed 07/01/21 Page 12 of 19
`
`48. M 1693 has also been involved in one (1) confirmed and documented case of
`
`charging towards a human. On March 13, 2021, M 1693 charged a person who
`
`shot at the wolf to stop the charge. M 1693 turned and went back up the hill to
`
`his mate, at that time an uncollared wolf (F 1728) who was up in the trees. This
`
`incident was recorded by FWS satellite tracking.
`
`49. On or about May 3, 2021, the FWS issued a letter “To Whom it May Concern:”
`
`requesting public comment on the proposal to translocation a Mexican wolf male
`
`(M 1693) and a Mexican wolf female (F 1728) onto the private lands within Sierra
`
`County, specifically on the Ladder Ranch near Caballo, New Mexico.
`
`
`
`50. The letter does NOT state that M 1693 and F 1728 are known “problem wolves”
`
`based on their significant and long history of depredation on lawfully grazing
`
`livestock and involvement in at least one (1) incident of aggressive behavior
`
`toward humans.
`
`51. The letter states that the release site for these wolves was chosen because of its
`
`distance from grazing on the Gila National Forest, but it does not discuss the
`
`release site distance from lawfully allowed livestock grazing on any private,
`
`Bureau of Land Management or State managed lands near the Ladder Ranch
`
`release site in Sierra County, New Mexico.
`
`52. Sierra County, New Mexico, shares a common boundary with Catron County,
`
`New Mexico where the wolf kills occurred early 2021.
`
`53. Even though the letter was not transmitted to the general public but was only
`
`emailed to certain individuals hand selected by Respondents, it requested “public
`
`comment.”
`
`12
`
`
`

`

`Case 2:21-cv-00611-GBW-CG Document 1 Filed 07/01/21 Page 13 of 19
`
`54. The request for “public comment” was not listed in the Federal Register or
`
`placed in any media or other publicly available source.
`
`55. The Respondents did not request a list of names from the Sierra County Assessor
`
`of those who live adjacent to or near the release site.
`
`56. According to the Mexican Wolf Conservation Assessment, prepared in 2010 by
`
`Region 2 of the FWS, wolf packs can travel over 40 miles in a 24-hour period.
`
`57. Upon information and belief, the letter was transmitted by email and it is not
`
`known to whom such letter was sent, or whether the letter was received or
`
`acknowledged.
`
`58. At least one landowner who fit the criteria stated by the FWS for notification and
`
`public comment did not receive any notification of the Respondents’ proposed
`
`release even though they are located less than ten (10) miles from the release site.
`
`59. The letter gave notice that a “public comment period” of 20 days would be
`
`available to take public comment. Comments were to be sent to
`
`mexicanwolfcomments@fws.gov
`
`60. The letter was digitally signed by Brady McGee, Mexican Wolf Recovery
`
`Coordinator.
`
`
`61. On or about June 16, 2021, the New Mexico Department of Fish and Game gave a
`
`one-line concurrence “with the proposed action.” Such email one-line
`
`concurrence was not shared with Petitioners including the Sierra County
`
`Commission until June 17, 2021, and then it was only shared specifically at the
`
`request of Sierra County Commission Chairman, Jim Paxon.
`
`13
`
`
`

`

`Case 2:21-cv-00611-GBW-CG Document 1 Filed 07/01/21 Page 14 of 19
`
`62. On or about June 17, 2021, Jim Paxon, Sierra County Commissioner, received a
`
`phone call from Maggie Dwire, FWS wolf biologist, reporting that the FWS placed
`
`the problem wolves and their pups in a pen on the Ladder Ranch private property
`
`in Sierra County, New Mexico and that the gates would be opened within 2 (two)
`
`to 3 (three) weeks to allow the wolves free access to the Ladder Ranch and other
`
`lands outside the Ladder Ranch.
`
`63. Upon information and belief, there is no barrier or other method in place to keep
`
`the wolves on the Ladder Ranch once the gates to the pens are opened.
`
`64. No NEPA analysis accompanied the decision to translocate the problem wolves
`
`onto the Ladder Ranch in a location that is only a few miles from other private
`
`lands, State lands and other federal lands where livestock are lawfully present.
`
`65. No NEPA analysis accompanied the decision to translocate the problem wolves
`
`onto the Ladder Ranch in a location that is near private homes with full-time
`
`residents with pets and livestock.
`
`GROUNDS FOR RELIEF
`
`66. NEPA, 42 U.S.C. § 4332, requires that major Federal actions significantly
`
`affecting the quality of the human environment must include a detailed
`
`statement about the environmental impact of the proposed action, the adverse
`
`environmental effects that cannot be avoided, alternatives to the proposed action,
`
`the relationship between local short-term uses of man’s environment and the
`
`maintenance and enhancement of long-term productivity and an irreversible and
`
`irretrievable commitment of resources which would be involved in the proposed
`
`action should it be implemented.
`
`
`
`14
`
`
`

`

`Case 2:21-cv-00611-GBW-CG Document 1 Filed 07/01/21 Page 15 of 19
`
`67. One of the purposes of the NEPA process is to ensure (1) informed decision
`
`making and (2) informed public comment. New Mexico ex rel. Richardson v.
`
`Bureau of Lands Management, 565 F.3d 683 (10th Cir. 2009).
`
`68. Because NEPA provides no private cause of action, NEPA challenges are brought
`
`pursuant to the Administrative Procedures Act (APA). Under the APA, the Court
`
`must determine whether the agency action is arbitrary, capricious, an abuse of
`
`discretion or otherwise not in accordance with law. 5 U.S.C. § 706(2)(a).
`
`69. An agency’s decision is arbitrary and capricious if the agency “entirely failed to
`
`consider an important aspect of the problem” or “failed to base its decision on
`
`consideration of relevant factors.” Utah Envtl. Cong. v. Troyer, 479 F.3d 1269
`
`(10th Cir. 2007).
`
`70. NEPA does not permit an agency to remain oblivious to differing environmental
`
`impacts or to hide these from the public, simply because it understands the
`
`general type of impact likely to occur. Such a state of affairs would be anathema
`
`to NEPA's “twin aims” of informed agency decision making and public access to
`
`information. See 565 F.3d at 707.
`
`71. In this case, the Respondents have failed to consider an important aspect of the
`
`problem and failed to provide public notice of that problem. With regarding to
`
`Respondents’ failure to consider an important aspect of the problem:
`
`a. While the Respondents have analyzed the translocation of Mexican wolves
`
`as part of an EA in 2000 into the Gila Wilderness Area, there has been no
`
`analysis of the translocation of “problem wolves” including one wolf with
`
`at least one (1) incident of aggressive behavior toward humans.
`
`15
`
`
`

`

`Case 2:21-cv-00611-GBW-CG Document 1 Filed 07/01/21 Page 16 of 19
`
`b. Out of the 23 times “problem wolves” is mentioned in the 2015 Final 10(j)
`
`Rule, the final rule only uses the words translocation and problem wolves
`
`together in one (1) place. Id. at 2562.
`
`c. Neither the FEIS nor the Record of Decision mentions, let alone analyzes
`
`the translocation of “problem wolves.”
`
`d. The FEIS states that the management of problem wolves is most
`
`appropriately addressed in a management plan. November 2014 FEIS at
`
`10.
`
`e. Upon information and belief, to date, no management plan for “problem
`
`wolves” M 1693 and F 1728 has been released to the public for review.
`
`f. Upon information and belief, the FWS did not consider the important
`
`aspect of translocating “problem wolves” to private land, which is adjacent
`
`to other private lands, State lands, other federal lands where livestock are
`
`lawfully grazed. Additionally, the FWS did not consider the important
`
`aspect of translocating a wolf with aggressive behavior towards humans
`
`adjacent to private homes with full-time residents
`
`72. With regard to NEPA’s requirement and FWS policy to provide adequate public
`
`information:
`
`a. Although the May 3, 2021 letter stating “To Whom it May Concern:”
`
`discussed the translocation of a pair of wolves onto private land within
`
`Sierra County, such notification did not specify that the wolves were
`
`“problem wolves.”
`
`b. Although the “To Whom it May Concern:” letter gave the numbers of the
`
`male and female wolf, and the problems with these specific wolves were
`
`16
`
`
`

`

`Case 2:21-cv-00611-GBW-CG Document 1 Filed 07/01/21 Page 17 of 19
`
`known to the FWS, the letter did not inform the public of the specific
`
`incidents of aggressive behavior toward a human and repeated confirmed
`
`livestock depredation.
`
`c. The May 3, 2021 letter provided a comment period until May 24, 2021 to
`
`provide comments on this action.
`
`d. The letter was digitally signed by Respondent Brady McGee, as Mexican
`
`Wolf Recovery Coordinator.
`
`e. The management plan, if one existed, for the problem Mexican wolves
`
`M1693 and F1728 was not offered for public review.
`
`f. The May 3, 2021 letter was not provided to all landowners within a ten
`
`(10) mile radius of the release site.
`
`73. The Respondents’ action is arbitrary and capricious because the Respondents’
`
`failed to provide any reasoning for the decision to release problem wolves onto
`
`private land in Sierra County. When an agency has not stated any reasons to
`
`support a decision, it is arbitrary and capricious for failure to articulate a
`
`satisfactory explanation. Motor Vehicles Mfrs. Ass’n v. State Farm Mut. Auto
`
`Ins. Co., 463 U.S. 29, 43 (1983).
`
`74. The Respondent’s action also violates NEPA by failing to assess the
`
`environmental impacts of the action to translocate “problem” wolves into the
`
`larger Mexican Wolf Experimental Population Area (MWEPA). NEPA requires
`
`that Federal agencies take a “hard look” at the environmental impacts of major
`
`federal actions. Robertson v. Methow Valley Citizens Council, 490 U.S. 332,
`
`348-350 (1989).
`
`17
`
`
`

`

`Case 2:21-cv-00611-GBW-CG Document 1 Filed 07/01/21 Page 18 of 19
`
`75. The Respondents’ decision to translocate problem wolves onto land within Sierra
`
`County within five (5) miles from the nearest ranch without preparing an
`
`adequate NEPA analysis fails to provide important information to the public,
`
`thwarting their right to participate in informed decision making. See Western
`
`Watersheds Project v. Zinke, 441 F. Supp.3d 1042, 1069-70 (D. Idaho 2020).
`
`76. The APA requires courts to hold unlawful and set aside agency action that is
`
`arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
`
`law. 5 U.S.C. § 706(2)(A).
`
`77. The Respondents’ action is arbitrary, capricious, an abuse of discretion or
`
`otherwise not in accordance with law. 5 U.S.C. § 706(2)(A).
`
`78. The Respondents’ action fails to observe procedure required by law. 5 U.S.C. §
`
`706(2)(d).
`
`79. For these reasons and those that will be more fully detailed in the merits briefs,
`
`the Respondents’ action must be set aside.
`
`WHEREFORE Petitioners request that this Court:
`
`
`
`A.
`
`Declare the Respondents’ action violated NEPA, agency procedure and the
`
`APA.
`
`
`
`B.
`
`C.
`
`Set aside and vacate the Respondents’ action.
`
`
`
`Preliminarily and permanently enjoin the Respondents’ from releasing the
`
`problem wolves from their holding pens in Sierra County until the proper analysis and
`
`public comment period is completed.
`
`18
`
`
`

`

`Case 2:21-cv-00611-GBW-CG Document 1 Filed 07/01/21 Page 19 of 19
`
`
`
`D.
`
`Enter other preliminary or permanent injunctive relief as the Petitioners
`
`may hereafter specifically seek;
`
`E.
`
`Grant Petitioners such additional relief as the Court deems just and proper
`
`to remedy the Respondents’ violation of law and to protect the Petitioners interests.
`
`F.
`
`Award attorneys fees and costs to Petitioners as appropriate under the
`
`Equal Access to Justice Act.
`
`Submitted this 1st day of July, 2021
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`For the Petitioners:
`
`/s/ Karen Budd Falen
`
`Karen Budd-Falen (N.M Bar 148401)
`
`Katherine Merck (Pro hac vice pending)
`BUDD-FALEN LAW OFFICES, LLC
`300 East 18th Street
`Post Office Box 346
`Cheyenne, WY 82003
`(307)632-5105 Telephone
`(307)637-3891 Telefax
`Karen@buddfalen.com
`Katherine@buddfalen.com
`
`David M. Pato (N.M. Bar 15622)
`Adren Nance (N.M. Bar 15617)
`NANCE, PATO AND STOUT LLC
`Post Office Box 772
`Socorro, NM 87801-0772
`(575) 838-0911 Telephone
`(866) 808-1165 Telefax
`Dave@npslawfirm.com
`Adren@npslawfirm.com
`
`Attorneys for the Petitioners
`
`
`
`
`
`19
`
`
`

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge
throbber

Still Working On It

This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.

Give it another minute or two to complete, and then try the refresh button.

throbber

A few More Minutes ... Still Working

It can take up to 5 minutes for us to download a document if the court servers are running slowly.

Thank you for your continued patience.

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Your document is on its way!

If you do not receive the document in five minutes, contact support at support@docketalarm.com.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket