United States District Court, D. Colorado
PRAIRIE PROTECTION COLORADO, a Colorado non-profit corporation, Plaintiff,
v.
USDA APHIS WILDLIFE SERVICES, a federal agency; and JANET L. BUCKNALL, Deputy Administrator, USDA APHIS Wildlife Services; Defendants.
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., ...