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Environmental Law

: ESA Blawg

10th Circuit finds ESA challenge to BLM project moot because of reintroduction of Aplomado falcons in New Mexico

By Keith Rizzardi

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State of New Mexico v. Bureau of Land Management, 565 F.3d 683 (10th Cir., April 28, 2009).

SUMMARY: The Bureau of Land Management argues that the U.S. Fish & Wildlife Service's summer 2006 decision to reintroduce the Aplomado Falcon into the plan area moots a challenge under the ESA. The 10th Circuit agreed and vacated the portion of the district court's order addressing this issue.

BACKGROUND: State of New Mexico and a coalition of environmental organizations brought actions challenging the procedures by which Bureau of Land Management (BLM) adopted a Resource Management Plan Amendment (RMPA) opening publicly-owned desert grassland to oil and gas development. They challenged BLM's decision not to consult with the Fish and Wildlife Service ("FWS") under the Endangered Species Act ("ESA") regarding possible impacts of the planned development on the Northern Aplomado Falcon. The lower court held that BLM violated NEPA when it failed to conduct a site-specific environmental analysis of the likely impacts of leasing the Parcel and ordered BLM to prepare such an analysis, and Plaintiffs appealed other issues, including the ESA claims. However, in summer 2006, FWS issued a formal ruling in which it decided to reintroducethe Falcons into New Mexico and Arizona. See Establishment of a Nonessential Experimental Population of Northern Aplomado Falcons in New Mexico and Arizona, 71 Fed.Reg. 42298 (July 26, 2006).

Within Sierra and Otero counties in southern New Mexico lie the northern reaches of the richly biodiverse Chihuahuan Desert. Among the several habitats comprising this desert ecosystem is the Chihuahuan Desert grassland, much of which has depleted to scrubland over the past century and a half. A New Mexico State University biology professor identifies this grassland as the most endangered ecosystem type in the United States. The Otero Mesa, which BLM seeks to open to oil and gas development upon conclusion of the planning process that is the subject of this litigation, is home to the endangered Northern Aplomado Falcon, along with a host of other threatened, endangered, and rare species. Lying beneath it is the Salt Basin Aquifer, which contains an estimated 15 million acre-feet of untapped potable water. Recognizing the importance of this valuable resource, the state of New Mexico and many citizens and environmental groups have sought to prevent development. Photo of aplomado falcon in Chihuahuan desert by Kent Winchester from The Fat Finch Bird Brain Blog.

EXCERPT: New Mexico Wilderness Association (NWMA) argues that BLM failed to comply with ? 7(a)(2) of the ESA, which requires all federal agencies to formally consult with the federal wildlife agencies to "insure that any gency actionis not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species." 16 U.S.C. ? 1536(a)(2) … At the time of BLM's issuance of the Final EIS, the Falcon was listed as an endangered species, to which ? 7(a)(2) applied. See Determination of Northern Aplomado Falcon to Be an Endangered Species, 51 Fed.Reg. at 6686-88; see also 16 U.S.C. ? 1532(6) (defining the term "endangered species"), ? 1533(a) (empowering the Secretary of the Interior to "determine whether any species is an endangered species"). Since the promulgation of the reintroduction rule, the Falcon population in the plan area falls under ? 10(j) of the ESA, applicable to populations which are artificially introduced into an area outside the naturally existing range of a species. These populations are classified as "experimental." 16 U.S.C. ? 1539(j); Establishment of Nonessential Experimental Population of Northern Aplomado Falcons in New Mexico and Arizona, 71 Fed.Reg. at 42298. The ESA provides that nonessential experimental populations outside the National Park and National Wildlife Refuge system are treated as "proposed to be listed" rather than endangered or threatened. ? 1539(j)(2)(C); 50 C.F.R. ? 17.83(a). As discussed, the ? 7(a)(2) formal consultation process applies only to species listed as threatened or endangered and not to species that are merely proposed for listing….

In order for the federal courts to exercise jurisdiction, Article III of the Constitution requires that the controversy between the parties remain live throughout all stages of litigation. United States v. Seminole Nation of Okla., 321 F.3d 939, 943 (10th Cir.2002). "A federal court has no power to give opinions upon moot questions or declare principles of law which cannot affect the matter in issue in the case before it." S. Utah Wilderness Alliance v. Smith, 110 F.3d 724, 727 (10th Cir.1997)...

The presence of these birds makes it a practical impossibility for FWS to reverse reintroduction because an actual experimental population of Falcons now exists in the area at issue. Thus, FWS cannot voluntarily reclassify the Falcon population in the area as "endangered" and thus revive plaintiffs' ESA challenge. We have before us an example of the rare case where it is "absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." Laidlaw, 528 U.S. at 189, 120 S.Ct. 693.

Accordingly, NMWA's ESA challenge to the consultation process between BLM and FWS regarding the Northern Aplomado Falcon is moot.

KEITHINKING: Although BLM won the battle over the ESA issue, it lost the case, and the 10th Circuit invalidated the NEPA analysis. P.S. Sorry, don't know why it took me so long to post this one.

Full post as published by ESA Blawg on June 11, 2009 (boomark / email).