`
`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
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`County Commissioners of the
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`County of Sierra; the
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`Hillsboro Pitchfork Ranch L.L.C.; the
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`Salopek Ranch; William R. Lindsey;
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`and the High Seven Ranch
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`Petitioners,
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`v.
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`THE UNITED STATES DEPARTMENT
`OF THE INTERIOR, DEB HAALAND,
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`in her official capacity as Interior Secretary;
`UNITED STATES FISH and WILDLIFE SERVICE,
`an agency of the Department of the Interior;
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`MARTHA WILLIAMS, in her official capacity as
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`Principal Deputy Director, United States Fish
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`and Wildlife Service; AMY LUEDERS,
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`in her official capacity as Regional Director,
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`Region 2 of the United States Fish and Wildlife Service;
`and Brady McGee, in his official capacity as the
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` Mexican Wolf Recovery Coordinator.
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`Respondents.
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`1
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`Case 2:21-cv-00611-GBW-CG Document 1 Filed 07/01/21 Page 2 of 19
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`PETITION FOR REVIEW OF FINAL AGENCY ACTION
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`Petitioners County Commissioners of the County of Sierra, New Mexico; the Hillsboro
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`Pitchfork Ranch L.L.C.; the Salopek Ranch; William R. Lindsey; and the High Seven
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`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
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`Interior Secretary, Martha Williams as Principal Deputy Director of the U.S. Fish and
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`Wildlife Service, Amy Lueders as Regional Director for Region 2 of the U.S. Fish and
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`Wildlife Service and Brady McGee as Mexican Wolf Recovery Coordinator, all in their
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`official capacities (collectively Respondents), related to the final decision authorizing the
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`2021 release and translocation of “known problem” Mexican wolves in Sierra County,
`
`New Mexico. This decision and subsequent action was completed without any analysis
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`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
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`Secretary Deb Haaland, Martha Williams, Amy Lueders, and Brady McGee in
`
`their official capacities. Respondents violated the NEPA, as well as the
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`Administrative Procedure Act (“APA”) (5 U.S.C. § 702 et seq.) by failing to
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`complete any analysis pursuant to the National Environmental Policy Act
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`regarding the proposed translocation of male wolf (M 1693) and female wolf (F
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`2
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`Case 2:21-cv-00611-GBW-CG Document 1 Filed 07/01/21 Page 3 of 19
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`1728) (collectively “problem wolves”) onto private property in Sierra County, New
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`Mexico, a mere five (5) miles from the closest ranching operation. Male wolf M
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`1693 is designated a “problem wolf” by Respondents because he has seven (7)
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`documented and confirmed livestock depredations and one (1) documented
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`adverse human interaction in a neighboring New Mexico county. Female wolf F
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`1728 is also designated a problem wolf by Respondents because she has three (3)
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`documented and confirmed livestock depredations in a neighboring New Mexico
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`county.
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`2. Respondents further violated agency requirements and policy by either failing to
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`provide adequate notice to landowners and permittees within a 10-mile radius or
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`failing to provide any notice at all to landowners within a 10-mile radius prior to
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`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
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`letter was emailed “To Whom it May Concern:” on or about May 3, 2021, this
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`letter failed to include any notification that the wolves to be released in Sierra
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`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-
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`captive environment. By withholding this vital information, the May 3, 2021,
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`notification letter is wholly inadequate and the request for public comment
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`contained in the letter was a violation of law and policy. Additionally, at least one
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`landowner who fit the Respondents’ criteria for receiving the notification
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`received no notification at all, again in violation of FWS policy and procedure.
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`JURISDICTION
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`3
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`Case 2:21-cv-00611-GBW-CG Document 1 Filed 07/01/21 Page 4 of 19
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`3. This Court has jurisdiction over this action pursuant 5 U.S.C. § 702 et seq.
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`(Administrative Procedure Act).
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`4. Petitioners have suffered a legal wrong and are adversely affected or aggrieved by
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`the Respondents’ final agency actions and inactions and are entitled to seek
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`judicial review pursuant to 5 U.S.C. §§ 702 and 704.
`
`5. The Respondents’ final agency actions and inactions are also reviewable in
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`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
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`Respondents have translocated the problem wolves and their pups into pens on
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`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
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`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
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`release pens on the Ladder Ranch in Sierra County, New Mexico on or about
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`June 17, 2021.
`
`PARTIES
`
`8. Petitioner, Sierra County, New Mexico, was established by the New Mexico
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`Legislature in 1917, and its boundaries defined by NMSA 1978, Section 4-27-2
`
`(1917).
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`9. The Board of County Commissioners of the County of Sierra exercises the powers
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`of the County as a body politic and corporate pursuant to NMSA 1978, Section 4-
`
`38-1(1884).
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`4
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`Case 2:21-cv-00611-GBW-CG Document 1 Filed 07/01/21 Page 5 of 19
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`10. The New Mexico Legislature has granted the Counties those powers to provide
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`for the safety, preserve the health, promote the prosperity and improve the
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`morals, order, comfort and convenience of any county or its inhabitants. NMSA
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`1978 § 4-37-1 (1975).
`
`11. On June 29, 2021, the Board of County Commissioners for Sierra County
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`authorized this litigation on their behalf.
`
`12. Petitioner Hillsboro Pitchfork Ranch L.L.C. is located adjacent to and north of the
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`community of Hillsboro, Sierra County, New Mexico. The Ranch is owned by
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`fourth-generation ranchers Kathy McKinney and Robert Cunningham. The north
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`boundary of the Pitchfork Ranch is adjacent to the Ladder Ranch and
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`approximately 9.2 miles from the Mexican wolf release site. The Pitchfork Ranch
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`shares a common boundary with the Ladder Ranch of approximately four miles.
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`The Pitchfork Ranch is a 225 head cow/calf operation, meaning that Petitioner
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`has a permanent herd of livestock to produce and raise calves for sale.
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`13. Petitioner Salopek Ranch is a ranch of approximately 50 sections of private land,
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`with a small portion of State land that is directly adjacent to the Ladder Ranch.
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`The Salopek Ranch is a working cattle ranch that maintains approximately 300
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`heard of cattle on their private property and State leased land. David Salopek
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`and his wife raised their children on the ranch. Despite being directly adjacent to
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`the Ladder Ranch and even though Petitioner Salopek Ranch’s livestock graze
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`less than three miles from the release site, the owner of the Salopek Ranch did
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`not receive notification of the proposed release of problem wolves from the
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`Respondents. Currently, Petitioner Salopek’s livestock are grazing adjacent to
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`5
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`Case 2:21-cv-00611-GBW-CG Document 1 Filed 07/01/21 Page 6 of 19
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`the release site and based on the grazing rotation for the Salopek Ranch, are
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`scheduled to remain in that pasture until the fall.
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`14. William R. Lindsey is the lessee and operator of a ranch that includes the Forest
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`Service Kingston allotment. He and his wife raised their children on the ranch
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`and his grandchildren come to gather cattle, check water, repair fences and
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`perform other ranch work. Petitioner’s property abuts the Ladder Ranch and
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`Petitioner is currently grazing between 130 and 150 head of livestock within ¼
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`mile of the Ladder Ranch and 4 miles from the wolf release site.
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`15. Petitioner High Seven Ranch consists of private land and the North Palomas
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`Forest Service grazing allotment and provides income for 3 (three) families.
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`Petitioner grazes approximately 132 head of cattle and 4 (four) horses/mules on
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`his ranch. Petitioner borders the Ladder Ranch and the High Seven Ranch is
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`located approximately 5 (five) miles from the wolf release site.
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`16. Respondent Department of the Interior is an agency of the United States.
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`Congress has charged the Department with administering the Endangered
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`Species Act (ESA) for terrestrial species. The Department of the Interior is
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`responsible for the Mexican wolf experimental nonessential population including
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`the translocation of Mexican wolves.
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`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
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`translocation of Mexican wolves and is sued in her official capacity.
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`18. Respondent United States Fish and Wildlife Service (FWS) is an agency of the
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`Department of the Interior. The FWS has been delegated responsibility by the
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`Secretary of the Interior for the day-to-day administration of the ESA, including
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`6
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`Case 2:21-cv-00611-GBW-CG Document 1 Filed 07/01/21 Page 7 of 19
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`management of threatened and endangered terrestrial species. The FWS is
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`specifically responsible for the Mexican wolf experimental nonessential
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`population and the translocation of Mexican wolves.
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`19. Respondent Amy Lueders is the Southwest Regional Director of the FWS. She
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`oversees the FWS’s administration of the ESA within Region 2, which includes
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`the State of New Mexico, and is sued in her official capacity.
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`20. Respondent Brady McGee is the Mexican Wolf Recovery Coordinator for the
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`FWS. He oversees the FWS’s administration of the Mexican Grey Wolf Recovery
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`Program, including the translocation of Mexican wolves and is sued in his official
`
`capacity.
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`STATEMENT OF FACTS
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`21. The Mexican wolf was originally listed as an endangered species in New Mexico,
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`Arizona and Texas pursuant to the ESA on April 28, 1976. 41 Fed. Reg. 17736 –
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`17740 (April 28, 1976).
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`22. Region 2 of the FWS was responsible for implementing the Mexican Gray Wolf
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`Recovery Program based upon that listing.
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`23. In 1978, the FWS listed the entire gray wolf species as endangered under the
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`species name Canis lupus. That endangered species listing completely subsumed
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`the 1976 Mexican wolf listing into the larger listing. 43 Fed. Reg. 9607 (March 9,
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`1978). As stated by the FWS, "the grey wolf (Canis lupus) group in Mexico and
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`the coterminous States of the United States other than Minnesota, is being
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`considered as one 'species,' and the grey wolf group in Minnesota is being
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`considered as another group." Id. at 9610.
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`7
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`Case 2:21-cv-00611-GBW-CG Document 1 Filed 07/01/21 Page 8 of 19
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`24. The FWS approved a Recovery Program for the species Canis lupus in 1982,
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`which included a captive breeding component for the wolves in Arizona and New
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`Mexico. The Recovery Plan established a prime objective “to conserve and ensure
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`survival of the Mexican gray wolves by maintaining a captive breeding program
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`and reestablishing a viable, self-sustaining population of at least 100 Mexican
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`wolves in a 5,000 square mile area within the subspecies’ historic range.”
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`25. The first release of those captive-bred wolves into the wild occurred in 1998 as
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`an experimental nonessential ("ENE") population pursuant to the ESA § 10(j)
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`(ENE 10(j) rule). 63 Fed. Reg. 1752 (Jan. 12, 1998).
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`26. The ENE designation for the Mexican wolf contained a component allowing for
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`the release of captive born Mexican wolves into an area known as the Blue Range
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`Wolf Recovery Area (“BRWRA”). The original BRWRA contained a "primary"
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`and "secondary" recovery zone. 63 Fed. Reg. 1752 (January 12, 1998). Under the
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`original program, Mexican wolves were only released into the primary recovery
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`zone of the BRWRA in Arizona, an area of 737,857 acres. No Mexican wolves
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`were released in New Mexico.
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`27. Under the original program, Mexican wolves were only allowed to disperse into
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`the BRWRA. If wolves traveled outside the BRWRA, they were trapped or
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`captured and returned to the BRWRA. 63 Fed. Reg. 1752, 1754, 1758 (January 12,
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`1998).
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`28. In 2000, the FWS issued a Final Environmental Assessment (EA) and Finding
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`of No Significant Impact (FONSI) of the Translocation of Mexican Wolves
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`Throughout the Blue Range Wolf Recovery Area in Arizona and New Mexico.
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`February 10, 2000 (USFWS 2000). As noted in the title, this NEPA document
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`8
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`Case 2:21-cv-00611-GBW-CG Document 1 Filed 07/01/21 Page 9 of 19
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`solely analyzed the translocation of Mexican wolves on Forest Service land within
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`the Blue Range Wolf Recovery Area.
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`29. According to that EA, “When there are persistent, unresolvable problems, FWS
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`has some discretion in designating a “problem wolf,” within the parameters
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`defined within the nonessential experimental rule and interagency management
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`plan. Under certain circumstances, those animals repeatedly involved in
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`livestock depredation would be considered “problem wolves” and would be
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`permanently removed from the wild population in accordance with the rule and
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`plan.” Id. p. 14.
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`30. There is no other mention of “problem wolves” in that document or appendices.
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`31. According to the FONSI supporting the decision dated March 17, 2000,
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`translocated wolves would also be released in the Gila Wilderness.
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`32. In 2012, the FWS issued an ESA "12-month finding" stating that listing the
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`Mexican wolf as a subspecies or a distinct population segment ("DPS") was not
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`warranted because the species was already being protected as endangered. 77
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`Fed. Reg. 61375 – 61381 (October 9, 2012).
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`33. On June 13, 2013, the FWS announced its intent to amend the 1998 ENE 10(j)
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`rule for the Mexican wolf; that amendment would be accompanied by an analysis
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`pursuant to the NEPA. 78 Fed. Reg. 35719 (June 13, 2013).
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`34. Such NEPA analysis, in this case an Environmental Impact Statement (EIS), was
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`completed and released in November 2014.
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`35. According to the 2014 Final EIS, “problem wolves mean Mexican wolves that,
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`for purposes of management and control by the Service or its designated agent(s),
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`are: (i) Individuals or members of a group or pack (including adults, yearlings,
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`9
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`Case 2:21-cv-00611-GBW-CG Document 1 Filed 07/01/21 Page 10 of 19
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`and pups greater than 4 months of age) that were directly involved in a
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`depredation on lawfully present domestic animals; (ii) Habituated to humans,
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`human residents, or other facilities regularly occupied by humans; or (iii)
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`Unprovoked and aggressive towards humans.” 2014 Final Environmental Impact
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`Statement at p. xiv.
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`36. The Final EIS refers to “problem wolves” 23 times. The Final EIS does not refer
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`to the translocation of “problem wolves” such as those that were directly involved
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`in numerous depredation incidents of lawfully protected domestic animals or
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`who displayed unprovoked and aggressive behavior towards humans.
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`37. Based on the 2014 Final EIS, a Record of Decision supporting the Revisions to
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`the Regulations for the Nonessential Experimental Population of the Mexican
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`Wolf was signed on January 6, 2015.
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`38. The Record of Decision does not discuss translocating “problem wolves.”
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`39. On January 16, 2015, the Respondents released the Final Revision to the
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`Regulations for the Nonessential Experimental Population of the Mexican Wolf.
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`80 Fed. Reg. 2512 (January 16, 2015).
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`40. According to the 2015 final rule, Mexican wolves can be released on private land
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`“under a Service- and State-approved management agreement with private
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`landowners.” Id. at 2520, 2525, 2559.
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`41. Out of the 23 times “problem wolves” are mentioned in the 2015 Final 10(j) Rule,
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`the final rule only uses the words translocation and problem wolves together in
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`one place. Id. at 2562.
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`42. The final rule states that the management of problem wolves will be addressed
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`in a manner consistent with a Service-approved management plan. Id. at 2530.
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`10
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`Case 2:21-cv-00611-GBW-CG Document 1 Filed 07/01/21 Page 11 of 19
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`43. Upon information and belief, the “service-approved management plan” was not
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`analyzed as required by NEPA, nor was the public given the opportunity to
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`comment on the “management plan.”
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`44. With regard to the specific wolves proposed to be translocated, male wolf M
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`1693 was not born into the wild but was a cross-fostered pup put into the Elk
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`Horn Pack that was denning in Arizona. The Elk Horn Pack came from Arizona
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`to New Mexico and onto the Sometime Creek Ranch in late 2018 or early 2019.
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`On March 14, 2019, the first livestock depredation was assigned to Elk Horn Pack
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`in New Mexico, that included M 1693 who was uncollared at the time. In total,
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`depredations on the Sometime Creek Ranch included four (4) confirmed Mexican
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`wolf depredations assigned to uncollared wolves in the Elk Horn Creek Pack
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`which included M 1693. The Elk Horn Pack was assigned to 11 confirmed and
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`probable wolf depredations.
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`45. On or about April 25, 2019, M 1693 was trapped by the United States
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`Department of Agriculture/Animal and Plant Health Inspection Service and
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`collared by the FWS as M 1693.
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`46. Once captured and collared, M 1693 was put in confinement until Respondents
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`again released the wolf into the southern end of Catron County, New Mexico on
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`the Gila Flat on June 14, 2019.
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`47. Since its second release into the wild, M 1693 and its uncollared mate were
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`determined to have been involved in at least seven (7) additional depredation
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`incidents with livestock between February, 2021 and the end of March 2021 when
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`the Respondents captured M 1693 and his mate, which is now collared and
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`known as F 1728.
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`11
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`Case 2:21-cv-00611-GBW-CG Document 1 Filed 07/01/21 Page 12 of 19
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`48. M 1693 has also been involved in one (1) confirmed and documented case of
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`charging towards a human. On March 13, 2021, M 1693 charged a person who
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`shot at the wolf to stop the charge. M 1693 turned and went back up the hill to
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`his mate, at that time an uncollared wolf (F 1728) who was up in the trees. This
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`incident was recorded by FWS satellite tracking.
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`49. On or about May 3, 2021, the FWS issued a letter “To Whom it May Concern:”
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`requesting public comment on the proposal to translocation a Mexican wolf male
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`(M 1693) and a Mexican wolf female (F 1728) onto the private lands within Sierra
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`County, specifically on the Ladder Ranch near Caballo, New Mexico.
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`
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`50. The letter does NOT state that M 1693 and F 1728 are known “problem wolves”
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`based on their significant and long history of depredation on lawfully grazing
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`livestock and involvement in at least one (1) incident of aggressive behavior
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`toward humans.
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`51. The letter states that the release site for these wolves was chosen because of its
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`distance from grazing on the Gila National Forest, but it does not discuss the
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`release site distance from lawfully allowed livestock grazing on any private,
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`Bureau of Land Management or State managed lands near the Ladder Ranch
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`release site in Sierra County, New Mexico.
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`52. Sierra County, New Mexico, shares a common boundary with Catron County,
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`New Mexico where the wolf kills occurred early 2021.
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`53. Even though the letter was not transmitted to the general public but was only
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`emailed to certain individuals hand selected by Respondents, it requested “public
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`comment.”
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`12
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`Case 2:21-cv-00611-GBW-CG Document 1 Filed 07/01/21 Page 13 of 19
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`54. The request for “public comment” was not listed in the Federal Register or
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`placed in any media or other publicly available source.
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`55. The Respondents did not request a list of names from the Sierra County Assessor
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`of those who live adjacent to or near the release site.
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`56. According to the Mexican Wolf Conservation Assessment, prepared in 2010 by
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`Region 2 of the FWS, wolf packs can travel over 40 miles in a 24-hour period.
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`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
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`acknowledged.
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`58. At least one landowner who fit the criteria stated by the FWS for notification and
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`public comment did not receive any notification of the Respondents’ proposed
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`release even though they are located less than ten (10) miles from the release site.
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`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
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`mexicanwolfcomments@fws.gov
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`60. The letter was digitally signed by Brady McGee, Mexican Wolf Recovery
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`Coordinator.
`
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`61. On or about June 16, 2021, the New Mexico Department of Fish and Game gave a
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`one-line concurrence “with the proposed action.” Such email one-line
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`concurrence was not shared with Petitioners including the Sierra County
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`Commission until June 17, 2021, and then it was only shared specifically at the
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`request of Sierra County Commission Chairman, Jim Paxon.
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`13
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`Case 2:21-cv-00611-GBW-CG Document 1 Filed 07/01/21 Page 14 of 19
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`62. On or about June 17, 2021, Jim Paxon, Sierra County Commissioner, received a
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`phone call from Maggie Dwire, FWS wolf biologist, reporting that the FWS placed
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`the problem wolves and their pups in a pen on the Ladder Ranch private property
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`in Sierra County, New Mexico and that the gates would be opened within 2 (two)
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`to 3 (three) weeks to allow the wolves free access to the Ladder Ranch and other
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`lands outside the Ladder Ranch.
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`63. Upon information and belief, there is no barrier or other method in place to keep
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`the wolves on the Ladder Ranch once the gates to the pens are opened.
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`64. No NEPA analysis accompanied the decision to translocate the problem wolves
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`onto the Ladder Ranch in a location that is only a few miles from other private
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`lands, State lands and other federal lands where livestock are lawfully present.
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`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
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`residents with pets and livestock.
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`GROUNDS FOR RELIEF
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`66. NEPA, 42 U.S.C. § 4332, requires that major Federal actions significantly
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`affecting the quality of the human environment must include a detailed
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`statement about the environmental impact of the proposed action, the adverse
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`environmental effects that cannot be avoided, alternatives to the proposed action,
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`the relationship between local short-term uses of man’s environment and the
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`maintenance and enhancement of long-term productivity and an irreversible and
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`irretrievable commitment of resources which would be involved in the proposed
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`action should it be implemented.
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`14
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`Case 2:21-cv-00611-GBW-CG Document 1 Filed 07/01/21 Page 15 of 19
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`67. One of the purposes of the NEPA process is to ensure (1) informed decision
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`making and (2) informed public comment. New Mexico ex rel. Richardson v.
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`Bureau of Lands Management, 565 F.3d 683 (10th Cir. 2009).
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`68. Because NEPA provides no private cause of action, NEPA challenges are brought
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`pursuant to the Administrative Procedures Act (APA). Under the APA, the Court
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`must determine whether the agency action is arbitrary, capricious, an abuse of
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`discretion or otherwise not in accordance with law. 5 U.S.C. § 706(2)(a).
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`69. An agency’s decision is arbitrary and capricious if the agency “entirely failed to
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`consider an important aspect of the problem” or “failed to base its decision on
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`consideration of relevant factors.” Utah Envtl. Cong. v. Troyer, 479 F.3d 1269
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`(10th Cir. 2007).
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`70. NEPA does not permit an agency to remain oblivious to differing environmental
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`impacts or to hide these from the public, simply because it understands the
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`general type of impact likely to occur. Such a state of affairs would be anathema
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`to NEPA's “twin aims” of informed agency decision making and public access to
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`information. See 565 F.3d at 707.
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`71. In this case, the Respondents have failed to consider an important aspect of the
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`problem and failed to provide public notice of that problem. With regarding to
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`Respondents’ failure to consider an important aspect of the problem:
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`a. While the Respondents have analyzed the translocation of Mexican wolves
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`as part of an EA in 2000 into the Gila Wilderness Area, there has been no
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`analysis of the translocation of “problem wolves” including one wolf with
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`at least one (1) incident of aggressive behavior toward humans.
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`Case 2:21-cv-00611-GBW-CG Document 1 Filed 07/01/21 Page 16 of 19
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`b. Out of the 23 times “problem wolves” is mentioned in the 2015 Final 10(j)
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`Rule, the final rule only uses the words translocation and problem wolves
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`together in one (1) place. Id. at 2562.
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`c. Neither the FEIS nor the Record of Decision mentions, let alone analyzes
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`the translocation of “problem wolves.”
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`d. The FEIS states that the management of problem wolves is most
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`appropriately addressed in a management plan. November 2014 FEIS at
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`10.
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`e. Upon information and belief, to date, no management plan for “problem
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`wolves” M 1693 and F 1728 has been released to the public for review.
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`f. Upon information and belief, the FWS did not consider the important
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`aspect of translocating “problem wolves” to private land, which is adjacent
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`to other private lands, State lands, other federal lands where livestock are
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`lawfully grazed. Additionally, the FWS did not consider the important
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`aspect of translocating a wolf with aggressive behavior towards humans
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`adjacent to private homes with full-time residents
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`72. With regard to NEPA’s requirement and FWS policy to provide adequate public
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`information:
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`a. Although the May 3, 2021 letter stating “To Whom it May Concern:”
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`discussed the translocation of a pair of wolves onto private land within
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`Sierra County, such notification did not specify that the wolves were
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`“problem wolves.”
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`b. Although the “To Whom it May Concern:” letter gave the numbers of the
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`male and female wolf, and the problems with these specific wolves were
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`Case 2:21-cv-00611-GBW-CG Document 1 Filed 07/01/21 Page 17 of 19
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`known to the FWS, the letter did not inform the public of the specific
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`incidents of aggressive behavior toward a human and repeated confirmed
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`livestock depredation.
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`c. The May 3, 2021 letter provided a comment period until May 24, 2021 to
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`provide comments on this action.
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`d. The letter was digitally signed by Respondent Brady McGee, as Mexican
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`Wolf Recovery Coordinator.
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`e. The management plan, if one existed, for the problem Mexican wolves
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`M1693 and F1728 was not offered for public review.
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`f. The May 3, 2021 letter was not provided to all landowners within a ten
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`(10) mile radius of the release site.
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`73. The Respondents’ action is arbitrary and capricious because the Respondents’
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`failed to provide any reasoning for the decision to release problem wolves onto
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`private land in Sierra County. When an agency has not stated any reasons to
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`support a decision, it is arbitrary and capricious for failure to articulate a
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`satisfactory explanation. Motor Vehicles Mfrs. Ass’n v. State Farm Mut. Auto
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`Ins. Co., 463 U.S. 29, 43 (1983).
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`74. The Respondent’s action also violates NEPA by failing to assess the
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`environmental impacts of the action to translocate “problem” wolves into the
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`larger Mexican Wolf Experimental Population Area (MWEPA). NEPA requires
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`that Federal agencies take a “hard look” at the environmental impacts of major
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`federal actions. Robertson v. Methow Valley Citizens Council, 490 U.S. 332,
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`348-350 (1989).
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`Case 2:21-cv-00611-GBW-CG Document 1 Filed 07/01/21 Page 18 of 19
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`75. The Respondents’ decision to translocate problem wolves onto land within Sierra
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`County within five (5) miles from the nearest ranch without preparing an
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`adequate NEPA analysis fails to provide important information to the public,
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`thwarting their right to participate in informed decision making. See Western
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`Watersheds Project v. Zinke, 441 F. Supp.3d 1042, 1069-70 (D. Idaho 2020).
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`76. The APA requires courts to hold unlawful and set aside agency action that is
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`arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
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`law. 5 U.S.C. § 706(2)(A).
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`77. The Respondents’ action is arbitrary, capricious, an abuse of discretion or
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`otherwise not in accordance with law. 5 U.S.C. § 706(2)(A).
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`78. The Respondents’ action fails to observe procedure required by law. 5 U.S.C. §
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`706(2)(d).
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`79. For these reasons and those that will be more fully detailed in the merits briefs,
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`the Respondents’ action must be set aside.
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`WHEREFORE Petitioners request that this Court:
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`A.
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`Declare the Respondents’ action violated NEPA, agency procedure and the
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`APA.
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`B.
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`C.
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`Set aside and vacate the Respondents’ action.
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`Preliminarily and permanently enjoin the Respondents’ from releasing the
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`problem wolves from their holding pens in Sierra County until the proper analysis and
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`public comment period is completed.
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`Case 2:21-cv-00611-GBW-CG Document 1 Filed 07/01/21 Page 19 of 19
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`D.
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`Enter other preliminary or permanent injunctive relief as the Petitioners
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`may hereafter specifically seek;
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`E.
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`Grant Petitioners such additional relief as the Court deems just and proper
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`to remedy the Respondents’ violation of law and to protect the Petitioners interests.
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`F.
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`Award attorneys fees and costs to Petitioners as appropriate under the
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`Equal Access to Justice Act.
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`Submitted this 1st day of July, 2021
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`For the Petitioners:
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`/s/ Karen Budd Falen
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`Karen Budd-Falen (N.M Bar 148401)
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`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
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`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
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`Attorneys for the Petitioners
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