Prairie Protection Colorado v. USDA Aphis Wildlife Services

          ORDER DENYING AS-CONSTRUED MOTION FOR APA § 705 STAY

          William J. Martinez United States District Judge

         Plaintiff Prairie Protection Colorado is an organization that “advocates for prairie dogs and for the conservation and restoration of prairie ecosystems throughout Colorado.” (ECF No. 12 ¶ 8.) Defendant USDA APHIS Wildlife Services is a division of the Animal and Plant Health Inspection Service within the United States Department of Agriculture. (Id. ¶ 5.) Defendant Janet L. Bucknall is the division’s deputy administrator, and is sued in her official capacity. (Id. ¶ 6.) For simplicity, the Court will refer to Bucknall and the division she administers collectively as “Defendant.” Plaintiff brings this action under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 500 et seq., asking the Court to declare that Defendant is statutorily barred from carrying out a contract to kill prairie dog colonies in Commerce City, Colorado. Currently before the Court is Plaintiff’s Motion for Temporary Restraining Order and Preliminary Injunction. (ECF No. 5.) The Court previously denied the TRO portion of this motion and called for further briefing on the preliminary injunction portion, which the Court construes as a motion for stay of agency action under 5 U.S.C. § 705. (See ECF No. 13.) After receiving full briefing, the Court announced that no evidentiary hearing was necessary and that it planned to deny a stay of agency action for reasons to be explained in a forthcoming order. (ECF No. 24.) This is that order.

         For the reasons explained below, the Court finds that Plaintiff lacks prudential standing to sue under the statute in question. Therefore, Plaintiff has not shown a likelihood of success on the merits and a stay of agency action would be inappropriate.

         I. LEGAL STANDARD

         Plaintiff explicitly moves for a preliminary injunction under Federal Rule of Civil Procedure 65. (See ECF No. 5 at 1.)^[1] Because this case seeks review of agency action under the APA, the proper authority for preliminary relief is 5 U.S.C. § 705:

When an agency finds that justice so requires, it may postpone the effective date of action taken by it, pending judicial review. On such conditions as may be required and to the extent necessary to prevent irreparable injury, the reviewing court . . . may issue all necessary and appropriate process to postpone the effective date of an agency action or to preserve status or rights pending conclusion of the review proceedings.

         But the distinction between Rule 65 and § 705 is mostly technical because a § 705 stay is a provisional remedy in the nature of a preliminary injunction, see Winkler v. Andrus, 614 F.2d 707, 709 (10th Cir. 1980), and its availability turns on the same four factors considered under a traditional Rule 65 analysis, see, e.g., Hill Dermaceuticals, Inc. v. U.S. Food & Drug Admin., 524 F.Supp.2d 5, 8 (D.D.C. 2007).^[2] Those factors are: (1) a likelihood of success on the merits, (2) a threat of irreparable harm, which (3) outweighs any harm to the non-moving party, and that (4) the injunction would not adversely affect the public interest. See, e.g., Awad v. Ziriax, 670 F.3d 1111, 1125 (10th Cir. 2012). A preliminary injunction is an extraordinary remedy; accordingly, the right to relief must be clear and unequivocal. See, e.g., Flood v. ClearOne Commc’ns, Inc., 618 F.3d 1110, 1117 (10th Cir. 2010).

         II. BACKGROUND

         In light of the parties’ submissions, the Court finds the following to be undisputed for present purposes.

         Within Commerce City is an open-space area sometimes called the “Second Creek Open Space, ” taking its name from Second Creek, a small watercourse running through it. Second Creek Open Space covers about 120 acres and is mostly bounded by residential neighborhoods.

         A prairie dog colony lives within the open space. The colony’s ability to expand geographically is limited by the boundaries of the open space, so the prairie dogs have overgrazed the area, creating various problems.

         In late August of this year, Commerce City contracted to pay Defendant $23, 300 to exterminate the Second Creek colony, and perhaps others. That contract is known as the “Cooperative Service Agreement” (ECF No. 5-1 at 14), although, for reasons that will become clear below, Plaintiff insists on calling it the “Urban Rodent Control Agreement.” The Cooperative Service Agreement obligates Defendant “to treat approximately 200 acres of prairie dog colonies throughout Commerce City.” (Id. at 18.)

         Again, Second Creek is 120 acres total. It is not clear how many of those 120 acres are covered by prairie dog colonies-in other words, how many of the 200 acres contemplated by the Agreement are within Second Creek Open Space-nor where the other colonies are located.

         Defendant, in a brief filed with this Court on September 16, 2019, said that “no prairie dog management will begin until September 24, 2019, at the earliest.” (ECF No. 20 at 4.) September 24 was six days ago. The parties have not informed the Court whether any extermination efforts have begun.

         III. ANALYSIS

         Plaintiff argues that an obscure statute prohibits Defendant from exterminating prairie dogs in urban areas. The statute reads as follows:

On and after December 22, 1987, the Secretary of Agriculture is authorized, except for urban rodent control, to conduct activities and to enter into agreements with States, local jurisdictions, individuals, and public and private agencies, organizations, and institutions in the control of nuisance mammals and birds and those mammal and bird species that are reservoirs for zoonotic diseases, and to deposit any money collected under any such agreement into the appropriation accounts that incur the costs to be available immediately and to remain available until expended for Animal Damage Control activities.

7 U.S.C. § 8353. Plaintiff argues that Commerce City is urban and a prairie dog is a rodent, so the “urban rodent control” exception obviously applies here. (ECF No. 5 at 5–7.) Defendant counters that “urban rodent control” does not refer to extermination of any member of the order Rodentia found within an urban area, but instead to extermination of “urban rodents, ” i.e., ...