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New Mexico Department of Game & Fish v. United States Department of Interior

ELR Citation: 46 ELR 20112
Nos. CV 16-00462, (D.N.M., 06/10/2016) (Johnson, J.)

A district court preliminarily enjoined FWS from releasing endangered Mexican wolves in New Mexico without first obtaining the necessary permits from the state's game and wildlife agency. New Mexico law requires all persons who import and release non-domesticated animals to obtain a permit before doing so. In addition, federal law requires FWS to comply with state permit requirements except in instances where the DOI Secretary determines that such compliance would prevent him from carrying out his statutory duties. Here, FWS applied for the applicable permits, but the state denied the request. FWS nevertheless released the wolves. The state then filed suit to prevent future releases of wolves. FWS argued it may comply with state permit requirements by simply applying for a state permit, even if it is denied. But the clear meaning of compliance with state permit requirements entails actually receiving a permit, not merely applying for one. FWS also claimed that the state's denial of the permits prevents the Secretary from carrying out his statutory duties regarding experimental populations of wolves. But the applicable ESA language provides that the Secretary "may authorize the release" of endangered populations. The language does not require or obligate the Secretary to do so. Nor does the permit denial violate the intergovernmental immunity doctrine. The court therefore held that the state demonstrated likelihood of success on the merits. Likewise, the state met the irreparable injury requirement. The release of the wolf—an apex predator—without the state's knowledge of the time, location, or number of releases, presents a serious enough risk of harm to the state’s management of wild ungulate herds. The balance of equities also weighs in favor of the preliminary injunction. Whereas a relatively short-term delay in the release of captive wolves will result in little harm to FWS, release of wolves in violation of the state permitting process will result in irreparable injury. Finally, the issuance of the injunction would not be adverse to the public interest. FWS must therefore obtain the requisite importation and release permits before releasing any more wolves. But the court stopped short of requiring FWS to capture and remove those wolves already released.