A federal judge narrowed but did not end a grazing lawsuit, dismissing some claims on procedural grounds while allowing some Endangered Species Act (ESA) allegations to proceed.
Judge Laura Fashing of the U.S. District Court for the District of New Mexico largely dismissed claims brought by WildEarth Guardians, Western Watersheds Project and Caldera Action, concluding that their 60-day notice of intent to sue wrongly represented the scope of their complaint and that some claims were filed too late.
Still, the court allowed the groups to proceed on two issues: whether the U.S. Forest Service (USFS) must reinitiate consultation under the ESA and whether ongoing grazing and cattle trespass amount to illegal “take” of protected species.
Background
The dispute centers on the Valles Caldera National Preserve, a dormant volcanic crater in the Jemez Mountains of New Mexico. While USFS does not authorize livestock grazing inside the preserve itself, a dozen grazing allotments on the surrounding Santa Fe National Forest abut its boundary.
The groups alleged that poor fencing and enforcement have allowed hundreds of cattle to wander into the preserve each summer, where they trample wetlands, congregate around streams and damage habitat used by the Jemez Mountains salamander, the Mexican spotted owl and the New Mexico meadow jumping mouse. According to their filings, cattle trespass has been a recurring problem since at least 2017 and continues to undermine the recovery of these species.
The lawsuit followed years of warnings and meetings. Beginning in 2022, the environmental organizations sent USFS, U.S. Fish and Wildlife Services (USFWS) and National Park Service formal notices of intent to sue, as required by the ESA.
They contended that USFS failed to consult adequately with the USFWS about the impacts of grazing on endangered species, did not take effective steps to prevent harm and was improperly relying on outdated biological opinions issued in 2018 and 2020. Dissatisfied with the agencies’ responses, they filed suit in June 2024 and later amended their petition to broaden their claims.
Ruling
Fashing issued a mixed decision, dismissing several claims but allowing others to move forward. In her opinion, she wrote that ESA litigation hinges not only on substance but on careful adherence to procedural rules.
Fashing found that challenges to the validity of the 2018 biological opinion on the salamander were barred by the six-year statute of limitations, since the opinion was issued in July 2018 but was not challenged until October 2024.
“Petitioners did not challenge its validity until more than six years later,” Fashing said, adding that relation-back principles for amended pleadings did not apply.
She also held that the groups’ claims about USFS’ reliance on allegedly invalid opinions and its failure to conserve listed species had to be dismissed because they were not properly included in the 60-day notices. The ESA’s citizen-suit provision requires anyone intending to sue to notify the relevant agencies in writing of the exact violations at least 60 days before filing.
The court further dismissed the plaintiffs’ claim under ESA Section 7(d), which prevents agencies from committing resources once consultation has begun but before it is complete. Fashing explained that Section 7(d) “imposes substantive requirements on action agencies only after initiation of consultation,” and because no consultation was active, the claim could not stand.
Surviving claims
At the same time, the court concluded that two claims could move forward. First, the groups’ allegation that the USFS must reinitiate consultation with the USFWS under Section 7 of the ESA will move forward. The groups argue that ongoing cattle trespass constitutes “new information” requiring fresh consultation. Fashing agreed that, at the pleading stage, their allegations were sufficient.
“Petitioners satisfy this standard,” she wrote, rejecting USFS’ argument that plaintiffs must trace each cow to a specific allotment. Such detail, she said, was not required before an administrative record is developed.
Second, the court allowed the ESA Section 9 claim to proceed. That provision prohibits any “take” of listed species, broadly defined to include harassing, harming or significantly modifying habitat. The groups allege that USFS records show salamanders and jumping mice have been taken beyond permitted levels and that spotted owl habitat has been seriously harmed by cattle trespass. Fashing determined these allegations, if proven, could establish violations of Section 9.
The ruling narrows but does not end the litigation. While challenges to biological opinions and broader conservation duties were dismissed, the court left open the possibility that USFS could be forced to revisit its grazing program if the plaintiffs prevail on their surviving claims. — Charles Wallace, WLJ contributing editor
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