jumping mouse

This undated photo provided by the New Mexico Game and Fish Department shows a New Mexican meadow jumping mouse at a marsh near Espanola, N.M. Conservationists want the federal government to take notice of the mouse, saying climate change and unchecked livestock grazing are pushing the rare rodent closer to extinction. Considered endangered by the New Mexico Game and Fish Department, the mouse was recently added to the U.S. Fish and Wildlife Service's list of plants and animals that are candidates for protection under the federal Endangered Species Act. (AP Photo/Courtesy of New Mexico Department of Game and Fish)

It sounds like something out of an Aesop’s fable, where a tiny mouse prevents a huge cow from grazing on land that’s been grazed for generations.

Only it’s not a fable. U.S. District Judge James Browning abetted the mouse by dismissing a lawsuit brought by the two cattlemen’s associations seeking to overturn the critical habitat designation for the New Mexico meadow jumping mouse.

The Northern New Mexico Stockman’s Association and the Otero County Cattlemen’s Association argued the U.S. Fish and Wildlife Service (USFWS) did not conduct a full economic analysis prior to the designation. The groups stated the economic costs did not consider the compensation of its members regarding the reduction of the value of their water rights within the designation and a reduction in property value, thus violating the Fifth Amendment of the U.S. Constitution.  

“We are disappointed in the district court’s ruling. Our clients and their members have been ranching in New Mexico for generations,” Jeffrey McCoy, attorney at the Pacific Legal Foundation, told WLJ. “Some of the ranchers in the Northern New Mexico Stockman’s Association descend from ranching families that trace back to the late 1500s. The Fish and Wildlife Service’s critical habitat designation imposed significant costs and threatens these ranchers’ way of life. Yet, the Service [USFWS] failed to follow the requirements of the ESA [Endangered Species Act] and properly evaluate the consequences of its decision.”

The Pacific Legal Foundation represented the groups and argued the Supreme Court’s decision

in the case of Weyerhauser v. USFWS was applicable in this case. The decision stated the USFWS can only include the species’ habitat when designating critical habitat under the ESA and should consider the economic costs and benefits before deciding whether to exclude an area from critical habitat or to proceed with the designation.

Mouse and area occupied

The New Mexico meadow jumping mouse measures 7-9 inches, including a long tail more than half its length. New Mexico meadow jumping mice are excellent jumpers aided by their inch-long back feet. They are nocturnal and active during the summer months and hibernate from November until April. The mice live in riparian habitats with dense, tall herbaceous plants and overwinter in drier grassy or wooded areas, such as adjacent uplands.

The jumping mouse became a candidate for listing under the ESA in December 2007 and was listed in June 2014.

In March 2016, the USFWS designated approximately 13,970 acres of critical habitat within Colfax, Mora, Otero, Sandoval, and Socorro counties in New Mexico; Las Animas, Archuleta, and La Plata counties in southern Colorado; and Greenlee and Apache counties in eastern Arizona.

The USFWS divided their habitat into eight units. Of those eight units, USFWS found the jumping mouse occupies five of the units and the three remaining as partially occupied or unoccupied. The areas designated as unoccupied lie in the Sacramento and Jemez Mountains in New Mexico. USFWS included these areas as critical habitat because they “contain perennial flowing water with saturated soils, making these units highly restorable and essential for the conservation of the species,” according to the final designation.

Ruling in suit

During the public comment period regarding the unoccupied area, some commenters said the USFWS “lacked a scientific basis for designating the units.” Still, the associations and its members did not comment on excluding these areas during the comment period. In Browning’s ruling, he stated: “The Stockman’s Associations administratively waived their claims challenging USFWS’ decision not to exclude units 3 and 4 (the unoccupied units) from the designation because no member of the Stockman’s Associations raised any challenge to the inclusion of these units.”

Secondly, Browning wrote in his opinion USFWS “provided a sufficiently reasoned explanation” for its decision to include the unoccupied units under Section 4(b)(2) of the ESA. This section has been under contention for some time and is currently being revised by the agency due to the Supreme Court ruling in the Weyerhauser v. USFWS case. The revision under consideration allows the Secretary of the Interior to exclude any area from critical habitat if the “benefits of exclusion outweigh the benefits of inclusion.”

In 2014, USFWS contracted with the private consulting firm, Industrial Economics, Inc., on the economic effects of the proposed habitat designation. The firm found that costs “over and above” those usually incurred with “baseline costs” would be $20 million “in addition to those attributable to the mouse’s listing or other causes,” according to the plaintiffs.

The $20 million figure was below the $100 million threshold USFWS used in its decision-making process. The figure included reducing animal unit months (AUMs) and reduced water rights due to USFWS building fences along the streams, thus reducing the amount of land accessed by grazing.

Industrial Economics also acknowledged that incremental impacts to grazing allotments on federal land might impact the value of private land because “the ranching community may perceive that the designation of certain parcels as critical habitat will limit future grazing activities in those areas,” and because “private landowners hold renewable leases that are both inheritable and transferable with the sale of the land . . . [or] the transfer of livestock,” according to the ruling.

Browning found USFWS “did not abuse its discretion by failing to consider other designation costs, such as compensating the members of the Stockman’s Associations for reducing the value of their water rights, “and therefore, did not violate the Fifth Amendment.”

Browning wrote if the court ruled in favor of the cattlemen group’s assertions, the court would not overturn the critical habitat designation in its entirety but would tailor the manner to only include the areas in which the plaintiffs “show concrete damage” —units 3 and 4, the unoccupied areas.

Browning ordered the suit dismissed with prejudice, and the plaintiffs can appeal the decision. Collin Callahan, media relations manager for Pacific Legal Foundation, told WLJ a decision had not been made whether to appeal as of Oct. 15, but they have 60 days to decide. — Charles Wallace, WLJ editor

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