(CN) — Two New Mexico cattle groups told a 10th Circuit panel Friday the federal government failed to consider the economic impacts on ranchers when designating land critical habitat for the endangered New Mexico meadow jumping mouse.
The mouse was listed under the Endangered Species Act in 2014. In March 2016, the U.S. Fish and Wildlife Service issued a final rule designating critical habitat for the rodent across 14,000 acres and 170 miles of streams in Arizona, Colorado, and New Mexico.
The Northern New Mexico Stockman’s Association and others sued Fish and Wildlife in 2018, claiming it designated critical habitat for the jumping mouse without proper economic analysis. A federal judge dismissed the complaint in 2020, finding the agency properly considered economic impacts as part of the designation and upholding the protections for the mouse. The ranchers appealed.
“It’s undisputed that these are costs of critical habitat because they’re defined by the critical habitat,” attorney Jeffrey McCoy of Pacific Legal Foundation told the three-judge panel Friday. “Now Fish and Wildlife assumes, without explanation, that these costs would also be attributable absent any critical habitat.”
The ranchers trace their lineage on the land back centuries, according to legal documents, before the establishment of the Fish and Wildlife Service as well as the Santa Fe and Lincoln national forests at issue.
Based on a contractors’ estimate, the federal government estimated the designation would amount to $20 million in regulatory costs for the ranchers.
In its brief, Fish and Wildlife emphasized a ceiling of $100 million in costs and broke down its $20 million mark: $15 million would go toward authorizing and regulating grazing while $24,000 would be borne by the ranchers in three locations.
The ranching organizations not only considered this a gross underestimate, but worried existing water rights were not being adequately protected.
“My question is how does the designation injure those water rights?” said Chief U.S. Circuit Judge Timothy Tymkovich, a George W. Bush appointee. “What’s the injury?”
McCoy said how water rights diminished depended on where water rights were relocated, and that the whole issue needed further exploration.
“That whole aspect of the problem was ignored rather than evaluated, and that was the essential problem,” McCoy said.
U.S. Attorney Rachel Heron pointed out that the land at issue added up to about 1% of the overall land protected under the critical habitat designation.
Additionally, Heron said the agency considered the impact on water rights but found it to be minimal.
“There were some comments where there could be potential impacts to ranchers simply from having to change water sources,” Heron said. “It’s in the record, the Forest Service simply found the costs here were not disproportioned given the designated habitat for a species that is on the brink of not surviving the decade.”
More than 450 people tuned in to the oral arguments, broadcast remotely on YouTube.
U.S. Circuit Judges Gregory Phillips and Carolyn McHugh, both appointed by Barack Obama, rounded out the panel. The court did not say when or how it would decide the case.
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