Tuesday, December 11, 2012

Budd-Fallen Agency (NMTA Lawyers) Assement of Court Ruling:

Budd-Fallen Agency (NMTA Lawyers) Assement of Court Ruling:

This memorandum describes the significant victory we achieved in WildEarth Guardians v. Lane and NMTA, et al. Because the New Mexico Federal District Court ruled so strongly in our favor by refusing to elevate “Experimental, NonEssential”(“ENE”) populations to the status of threatened or endangered species for purposes of liability for take, I believe the WildEarth Guardians will appeal this decision to the Tenth Circuit Court of Appeals. If this decision is affirmed, it is not precedent to protect state officials acting within the flexibility afforded by the special rules accompanying an ENE population, but it protects third parties such as trappers who are fully complying with state law, from prosecution under the Endangered Species Act (“ESA”). The major ruling by the New Mexico Federal District Court in this case include:

1. In essence, WildEarth Guardians (“WEG”) tried to eliminate the legal distinction set forth in the ESA between an ENE species, a threatened species and an endangered species. Thus, for purposes of liability for “take,” WEG claimed that take of an endangered species was prohibited by statute, and the take prohibitions applied to endangered species were applied to threatened species by regulation. This is a correct analysis of the law. However, WEG then tried to go a step further and convince the court that the strict Section 9 take provisions should apply to ENE species,such as the Mexican wolf. The court strongly rejected that argument. Rather, the court recognized that Congress amended the ESA to include Section 10(j) to give the Fish and Wildlife Service (“FWS”) the flexibility to adopt rules for ENE species to try to get more cooperation from state and local governments in introducing species back into the wild. That is exactly what happened with the ENE Mexican wolf 10(j) rule. Among other things, that rule allows the states, such as New Mexico, to license trapping of fur bearers so long as “due care” is exercised. The New Mexico Game Commission and Director followed those rules and issued trapping licences, citing over and over the fact that the Mexican wolf was introduced in New Mexico as an ENE. The court refused to ignore the 10(j) special rule and refused to elevate the species to the level of threatened or endangered status for liability of a “take.” Although a wolf may be caught in a trap, as long as the trapper has complied with New Mexico trapping regulations, it is not an unlawful take under the ESA.

2. WildEarth Guardians also argued that the act of issuing rules, or a trapping license by Director Lane and Chairman McClintic, essentially starts a “chain reaction” that authorizes take of Mexican wolves. The court also rejected this argument, again noting the distinction between the ENE species and a threatened or endangered species. The court also noted that under the 10(j) special rule for the Mexican wolf, take (i.e. trapping) is prohibited only if third parties (the trappers themselves) fail to follow the proper licensing requirements (if they exist) and fail to exercise due care. The WEG brought forward evidence that wolves had been trapped, but there was no evidence that the trappers were not following New Mexico law, or were failing to exercise due care.

In sum, this is a very strong opinion recognizing important differences in take of ENE species, threatened or endangered species across the board. For that reason, I believe WEG will appeal this decision to the Tenth Circuit Court of Appeals. While this is certainly a “win” and should be enjoyed as one, this is not a case the environmental groups will drop at this stage.

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