Jarita Mesa Livestock Grazing Ass'n v. United States Forest Service (921 F. Supp. 2d 1137, 2013)

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Defendants’ Memorandum in Support of Motion to Dismiss, filed May 23, 2012 (Doc. 17). The Court held a hearing on November 9, 2012. The primary issues are: (i) whether the Court should extend a cause of action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971)(hereinafter “Bivens ”) to cover the claims of the Plaintiffs — Sebedeo Chacon, Thomas Griego, Donald Griego, Michael Pena, Juan Giron, Joe Gurule, Jr., Fernando Gurule, Diego Jaramillo, Lorenzo Jaramillo, Gabriel Aldaz, Arturo Rodarte, Jeffrey Chacon, Gloria Valdez, Jerry Vasquez, Carlos Ortega, Leon Ortega, Horacio Martinez, Ronald Martinez, Steve Chavez, Vangie Chavez, Alfonso Chacon, Daniel Rael, John Valdez, Jarifa Mesa Livestock Grazing Association, Alamosa Livestock Grazing Association, and Board of County Commissions of the County of Rio Arriba, (collectively, “the Plaintiffs”) — against Defendant Diana Trujillo, District Ranger for the El Rito District in the Carson National Forest in New Mexico, in her personal capacity for damages; (ii) whether the Plaintiffs have stated a claim that the United States Forest Service (“USFS”) and Trujillo (collectively, “the Defendants”) violated the Plaintiffs’ First Amendment rights to speech and petition the government for redress; and (iii) whether the Court should entertain the Plaintiffs’ requests for equitable relief against the Defendants. The Court concludes that it should not extend a cause of action to the Plaintiffs under Bivens for the alleged violation of their First Amendment rights, because Congress created an adequate, alternative remedy in the Administrative Procedure Act, 5 U.S.C. §§ 701-706 (“APA”), for the Plaintiffs to bring their claim that Trujillo’s actions violated the Plaintiffs’ constitutional rights. The Court concludes that the Plaintiffs have sufficiently alleged that the Defendants plausibly violated the Plaintiffs’ First Amendment rights. The Plaintiffs have alleged sufficient facts for the Court to plausibly conclude that Trujillo’s decision in 2010 to reduce grazing permits by eighteen-percent was retaliation for the Plaintiffs’ repeated public criticism of Trujillo’s and the USFS’ management of the Carson National Forest. The Plaintiffs seek both declaratory and injunctive relief from Trujillo’s actions, requests which the Court may properly entertain, because the Plaintiffs seek to resolve an actual controversy regarding Trujillo’s and the USFS’ rights and obligations with respect to their future conduct towards the Plaintiffs, specifically, the enforcement of Trujillo’s 2010 decision to reduce certain Plaintiffs’ grazing permits by eighteen-percent through the 2015 grazing season.

FACTUAL BACKGROUND

The history of the Plaintiffs’ case predates the parties before the Court. The Plaintiffs set forth a backdrop of social, cultural, and economic factors, which are inextricably intertwined to the Plaintiffs’ cattle grazing within the Carson National Forest. The Plaintiffs also allege a history of tension between the USFS and the Plaintiffs’ ancestors, tension which bears on the legality of the Defendants’ actions managing national forestland in northern New Mexico over the last three years. The Court takes as true all non-conclusory factual statements in the Complaint for Declaratory and Injunctive Relief (First Amendment to the United States Constitution, National Environmental Policy Act; National Forest Management Act, Sustain Yield Forest Management Act; Administrative Procedure Act) filed Jan. 20, 2012 (Doc. l)(“Complaint”).

1. The Parties.

“The Plaintiffs and their ancestors are Hispanic stockmen whose families have been grazing livestock” in northern New Mexico for many generations. Id. ¶ 3, at 2-3. Most of the Individual Plaintiffs’ families were grazing livestock in the area of the Vallecitos Federal Sustained Yield Unit (“the Unit”) before the USFS existed. Id. ¶ 3, at 3. The Unit is an area of the Carson National Forest that Congress set aside to be managed for the economic benefit of the communities located in the Unit. Congress specifically provided that these local communities should have access to the timber and other forest products within the Unit, as needed for the communities’ economic stability. See id. ¶ 39, at 14. Grazing livestock is an “integral part of their existence and is a central part of life in the villages they reside in ... all of Northern New Mexico.” Id. ¶ 3, at 3.

The Jarita Mesa Allotment and the Alamosa Allotment are areas within the Unit on which cattle grazing is allowed. Complaint ¶ 2, at 2. S. Chacon, Pena, Giron, ALdaz, Rodarte, T. Griego, D. Griego, J. Gurule, Jaramillo, J. Chacon, and G. Valdez (collectively, “the Jarita Mesa Permit-tees”) have permits issued by the USFS which allow them to graze cattle on the Jarita Mesa Allotment. Id. ¶ 3, at 2. T. Griego, D. Griego, C. Ortega, L. Ortega, Rael, H. Martinez, R. Martinez, F. Gurule, J. Vasquez, J. Vasquez, Jr., and A. Chacon (collectively, “the Mamosa Permittees”) have permits, issued by the USFS, which allow them to graze cattle on the Mamosa Mlotment. Id. ¶ 3, at 2. S. Chavez is a former permittee on the Mamosa Mlotment, and now lives within the Unit with his wife, V. Chavez. See id. ¶ 3, at 2. J. Valdez is a former permittee on the Jarita Mesa Mlotment and now resides within the Unit. See id. ¶ 3, at 2-3. The Jarita Mesa Grazing Association and the Mamosa Grazing Association (collectively, “the Associations”) are “local livestock associations made up exclusively of grazing permittees on the respective allotments.” Complaint ¶ 13, at 5. The Associations were established to: (i) protect and promote the permittees’ livestock grazing on the Mlotments; (ii) manage and share the costs of handling livestock, range improvements, and other programs for the benefit of the Mlotments and their resources; (iii) express the Associations’ members’ wishes; and (iv) meet with and work with the USFS to ensure proper management of livestock and range resources on the allotments. See id. ¶ 13, at 6. S. Chacon was president of the Jarita Mesa Grazing Association throughout the events set forth in the Complaint. See id. ¶ 14, at 6. T. Griego was president of the Mamosa Grazing Association throughout the events set forth in the Complaint. See id. ¶ 15, at 7.

Board of County Commissioners of the County of Rio Arriba (“Rio Arriba County”) is a political subdivision in northern New Mexico, in which a large portion óf the Carson National Forest, including the Mlotments and the El Rito Ranger District, is located. Id. ¶ 16, at 7. The Individual Plaintiffs are all residents of Rio Arriba County. Rio Arriba County and local school districts receive payment derived from the grazing fees, in lieu of taxes, from the USFS. This payment is derived, in part, from grazing fees. Rio Arriba County is thus interested in ensuring that the “grazing permits on land administered by the Forest Service within Rio Arriba County are not unlawfully reduced.” Complaint ¶ 16, at 7. Rio Arriba County is also interested in protecting the social fabric, customs, traditions, and cultural integrity of the traditional communities within the county. Rio Arriba County is interested in the economic betterment of its citizens. Rio Arriba County is also interested in “making sure federal laws are followed and that its citizens are not punished by federal officials for expressing their views on federal agency policy to elected officials and others.” Id. ¶ 16, at 7.

The USFS is an agency of the United States Department of Agriculture and is charged with the “administration of lands within the United States that have been designated as National Forest Lands.” Id. ¶ 17, at 8. The USFS is charged with the management of the Unit. Throughout the events set forth in the Complaint, Trujillo was employed by the USFS as the El Rito District Ranger. Id. ¶ 19, at 8. Both Mlotments are located in the El Rito District of the Carson National Forest. See Complaint ¶ 1, at 2. Trujillo is charged with “managing the natural resources in her district, including the range resource.” Id. ¶ 19, at 8.

2. The Events.

“[A]ll or a substantial part of the events or omissions giving rise to the [Plaintiffs’] claims ... occurred within this judicial district.” Id. ¶ 12, at 5. The Hispanic people in northern New Mexico have lived in the area for hundreds of years, long before the USFS was created. See id. ¶ 37, at 13. They have a unique culture, shaped by and dependent on their relationship with the land. See id. ¶ 37, at 13. The Hispanic people living in villages nearby the Carson National Forests have historically relied on the resources of the national forests of northern New Mexico for sustenance. See Complaint ¶ 37, at 13. These Hispanics rely upon the “fodder, including grasses and other forage, like the marsh hay, mushrooms, nuts, and seeds” within the Unit for their sustenance. Id. ¶ 39, at 14. Livestock grazing is central to their cultural, social, and economic fabric, and has been since at least the 1690s. See id. ¶ 40, at 14. The Associations represent the communities “that have historically relied on, and continue to rely on, grazing on these ancient community ... lands.” Id. ¶ 40, at 15.

Beginning in the 1920s, the USFS’s management practices led to a reduction of the number of Hispanic residents near the Carson National Forest who were allowed to graze in the forest under permit. See id. ¶ 43, at 16-17. The USFS gradually eliminated milk cow and draft horse permits. See Complaint ¶ 43, at 17. The reduction in these permits has destabilized the Plaintiffs’ cultural and social fabric. See id. ¶ 43, at 17. The Plaintiffs have “repeatedly voiced opposition to and have been highly critical of various actions taken by the Defendants,” especially Trujillo’s actions in recent years. Id. ¶ 57, at 22-23. The Plaintiffs have written letters, spoken at public meetings, and contacted their congressional representatives about the Defendants’ actions. See id. ¶ 57, at 23.

Under the USFS’ management, the population of wild horses and elk on the Unit has grown to the point that the vegetative cover, upon which the Plaintiffs rely for grazing their cattle, has degraded. See id. ¶ 58, at 23. In 2002, the USFS found that the wild horses on Jarita Mesa were competing with the cattle for forage. See Complaint ¶ 59, at 23. In 2002, the USFS issued a Decision Notice (“2002 Decision Notice”) which authorized the number of wild horses to increase from between twelve and fourteen, to between twenty and seventy. Id. ¶ 60, at 24. The 2002 Decision Notice provided certain measures to be taken in case that the wild horse herd size grew above seventy horses. See id. ¶ 60, at 24.

On or about April 8, 2006, S. Chacon, as the President of the Jarita Mesa Grazing Association, sent a letter to New Mexico Governor Bill Richardson and to the New Mexico Congressional delegation, signed by over eighty residents of the Unit, in which S. Chacon complained about the USFS’ management of the El Rito Ranger District. The letter specifically complained about the USFS’ failure to reduce the number of wild horse herds and to control the number of elk herds on the Unit. See id. ¶ 62, at 25. On May 24, 2006, the Plaintiffs wrote to Trujillo’s supervisor, Carson National Forest Supervisor Martin Chavez, and alleged that Trujillo was acting “in an abusive manner towards the Jarita Mesa permittees, was dealing with them in a less than honest manner, was arbitrarily and capriciously reducing the grazing time allowed under their permits, and was otherwise impairing their grazing rights” under the permits. Id. ¶ 63, at 25. In June, 2006, an USFS employee admitted that the wild horse herd exceeded the number that the 2002 Decision Notice allowed and was numbering at least 150. See Complaint ¶ 64, at 25.

On July 5, 2006, Trujillo ordered all cattle removed from the Jarita Mesa Allotment by July 31, 2006. See id. ¶ 66, at 26. Some of the Plaintiffs, including S. Chacon and Aldaz, appealed Trujillo’s order. See id. ¶ 66, at 27. On July 25, 2006, Trujillo wrote to the Jarita Mesa Grazing Association and stated that the range conditions had not improved significantly, and thus she would not change her July 5, 2006 order to remove cattle by July 31, 2006. See id. ¶ 68, at 27. On July 28,-2006, acting Carson Forest Supervisor Kendall Clark ruled that, because of recent rains and soil moisture levels, Trujillo’s order would be delayed two weeks. A report by the Range Improvement Task Force (“RITF”), associated with New Mexico State University (“NMSU”), subsequently found that the past grazing of the permit-tees’ cattle had not damaged grazing resources, and that there was sufficient grass to complete the grazing season as the permits authorized. The Jarita Mesa Permittees were eventually allowed to complete their grazing season as their permits specified. See id. ¶ 69, at 28.

In 2006, David Correia, a scholar who had been researching the history of the Unit over several years, began assisting the Plaintiffs with their interactions with Trujillo. Correia attended a meeting in the El Rito area regarding grazing issues, at which Trujillo made statements to the effect that residents of the Unit caused most or all of the problems facing the Unit. See Complaint ¶ 72, at 28. Correia responded publicly at the meeting that the USFS’ mismanagement of the Unit over the years was the actual source of the Unit’s problems. Correia had been previously granted full access to the USFS’ records at the El Rito District Office for his research on the Unit. Subsequent to the 2006 meeting, Trujillo refused to allow Correia access to any records at the El Rito District Office and informed him that this change of policy was because of his statements at the meeting. See id. ¶ 72, at 29.

Trujillo then announced that she would end the 2006 grazing season in September, 2006 instead of on October 31, 2006 as set forth in the Plaintiffs’ permits. Trujillo stated that this change was because the Plaintiffs failed to meet certain conditions she had imposed which allowed the season to end on October 31, 2006. S. Chacon, as President of the Jarita Mesa Grazing Association, proposed a compromise end date of October 15, 2006. See id. ¶ 73, at 29. Trujillo responded that she would view S. Chacon’s request as that of his alone and that individual permittees would need to address their needs to her individually. Trujillo stated that if the conditions she imposed were not met, she would suspend or cancel the permits, and charge fines for any cattle not removed by October 2, 2006. See id. ¶ 74, at 30.

As of October 5, 2006, S. Chacon had seventeen cows unaccounted for in the Carson National Forest. Locating cattle at the end of a grazing season is often difficult for the permittees, given the size of the Allotments. On October 6, 2006, Trujillo reduced S. Chacon’s grazing permit by twenty-percent over the next two years, because he had not retrieved all of his cattle by the deadline she imposed. This decision was upheld on appeal. See id. ¶ 75, at 30-31. A Riparian Specialist and Natural Resource Specialist from NMSU wrote to Trujillo regarding S. Chacon’s permit reduction, and expressed that her standards were “unreasonable and unyielding,” and that the USFS was aware that S. Chacon was not given enough time to recover his cattle. Complaint ¶ 77, at 31-32.

Moving ahead three years, the Plaintiffs complained to Trujillo and her staff in the spring of 2009 regarding the USFS’ management of the Allotments. Trujillo responded with a certified letter in which she outlined the repercussions that the Plaintiffs would face if they did not comply with their grazing permits’ terms. See id. ¶ 79, at 32. On June 1, 2009, S. Chacon and T. Griego sent Trujillo a letter, that twenty-six permittees signed, in which the Plaintiffs criticized Trujillo’s management of the Allotments. The Plaintiffs also sent the letter to the New Mexico Congressional delegation, Governor Richardson, and Trujillo’s immediate supervisor, Carson Forest Supervisor Clark. The Plaintiffs stated in the letter that Trujillo’s certified letter insulted them, and the Plaintiffs accused Trujillo of attempting to intimidate them. The Plaintiffs also alleged the Trujillo had failed to “install needed cattle guards or to fix plugged ones,” and that Trujillo would sanction the permittees when their cattle then drifted from one allotment to another. Id. ¶ 80, at 32-33. The Plaintiffs also complained in the letter that they believed Trujillo was attempting to end grazing on the Allotments. See id. ¶ 80, at 33.

In 2009 and 2010, the USFS began preparing an Environmental Assessment (“EA”), that would determine the amount of grazing allowed on the Allotments for 2011 and subsequent years. See id. ¶ 78, at 32. On August 20, 2009, the USFS made public three alternative courses of action for the El Rito District: (i) no grazing; (ii) grazing at the same level as the previous ten years, but with a minor reduction and improved management; and (iii) an eighteen-percent reduction in the number of permits with improved management. The EA did not propose a reduction to the wild horse or elk population. See Complaint ¶ 81, at 33.

The USFS requested comments from the RITF regarding the EA’s proposals. The RITF had been studying the socioeconomic and environmental effects and implications of USFS decisions regarding the Allotments for many years. See id. ¶ 82, at 33. The RITF sent a letter to Trujillo expressing concern over the EA’s scientific methodology, and the RITF noted that the permittees “feel discouraged and powerless vis-a-vis” the USFS, as evidenced by the strained relationship of the two over recent years. Id. ¶ 82, at 34. The RITF recommended that Trujillo adopt the second proposal in the EA, which would allow grazing to remain at the same level as the previous years. See id. ¶ 84, at 34. The RITF also recommended a longer grazing season. See id. ¶ 84, at 34.

Rio Arriba County submitted a letter to the Defendants on September 17, 2009, in which it expressed concern of what it viewed as a “historical pattern of unjustified Forest Service action to reduce grazing opportunities for villagers that has chipped away and eroded the culture in the area and the way of life integral to that culture.” Complaint ¶ 85, at 35. The Associations also submitted comments on September 17, 2009, in which they stated that the USFS should, as part of the upcoming EA, consider managing the wild horse and elk populations. See id. ¶ 86, at 35. On September 18, 2009, the New Mexico Department of Agriculture submitted comments in which it recommended that Trujillo adopt the EA’s second proposal and stated its belief that proper management of the Carson National Forest would obviate the need to reduce the number of permits. See id. ¶ 87, at 35.

On January 11, 2010, at a public meeting, Trujillo expressed her view that the current level of permits was an eighteen-percent temporary increase above the correct level, an increase which occurred in 1980 and had improperly not since been reduced to the correct level. See id. ¶ 89, at 36. Trujillo also stated that she had been working with outside groups regarding the possibility of purchasing the Plaintiffs’ permits. See id. ¶ 89, at 36. Trujillo further stated that she would seek an eighteen-percent reduction in the number of permits, regardless of the EA’s proposals. See Complaint ¶ 89, at 37. That month, Trujillo contacted outside groups later in January and suggested that they purchase the Plaintiffs’ permits. See id. ¶ 90, at 37.

In March, 2010, the Plaintiffs submitted a petition to Carson National Forest Supervisor Clark, and Corbin Newman, the Regional Forester, signed by over 200 residents of the Unit, in which they requested that Trujillo be transferred from the El Rito District Ranger position. Trujillo was “extremely upset and angered by” the Plaintiffs’ request. Id. ¶ 92, at 38.

On September 30, 2010, the USFS issued its EA. Id. ¶ 4, at 3. The EA contains approximately one page describing the socioeconomic and cultural impact which the proposed actions may have. See id. ¶ 93, at 38. The EA did not contain any recommendations regarding reducing the wild horse and elk population on the Allotments. See Complaint ¶ 94, at 39. The EA noted that, if the second alternative was adopted, which would allow the permittees to remain at the same number but with better management, the overall environmental impact would be positive, and the economic impact on the permittees would be less harsh than if the third alternative, an eighteen-percent reduction in the number of permittees, was adopted. See id. ¶ 97, at 40. The EA thus designated the second alternative as the Proposed Action. See id. ¶ 98, at 41.

The 2010 EA’s Proposed Action would have allowed the Plaintiffs to “continue grazing on both allotments with approximately the same number of cows as Plaintiffs have grazed on those allotments since 1980.” Id. ¶ 4, at 3; id. ¶ 98, at 41. Normally, the District Range for the Carson and Santa Fe National Forests adopts the Proposed Action set forth in an EA. See Complaint ¶ 4, at 3; id. ¶ 99, at 41. Rather than adopting the 2010 EA’s Proposed Action, Trujillo adopted the third alternative set forth in the 2010 EA, which imposed an eighteen-percent reduction in the Plaintiffs’ grazing permits. See id. ¶ 5, at 3. Trujillo stated that she took this action because the current number of permitted livestock on the Unit was unsustainable. See id. ¶ 5, at 3-4; id. ¶ 100, at 42. The EA had not concluded that the current grazing numbers were unsustainable. See Complaint ¶ 100, at 42.

On November 29, 2010, the Associations and Rio Arriba County appealed Trujillo’s 2010 Decision Notice. See id. ¶ 105, at 44. In 2011, Trujillo’s’ supervisors ruled on the appeal and announced that they are upholding her decision. See id. ¶ 106, at 44.

The Plaintiffs assert that they “will be significantly injured as a result of the imposition of the 18% reduction in permitted cow/calf numbers.” Id. ¶ 17, at 8. The Plaintiffs assert that the loss of grazing permits “causes not only severe economic harm to Plaintiffs but also grave damage to viability of the unique cultural and social fabric of their families and communities.” Id. ¶ 17, at 8. The Plaintiffs assert that the importance of their social and cultural fabric “has been recognized by Defendant Forest Service as essential not just to the residents of northern New Mexico but to the entire nation.” Complaint ¶ 17, at 8.

PROCEDURAL BACKGROUND

All of the Plaintiffs’ alleged injuries are related to Trujillo’s 2010 decision to reduce grazing on the Jarita Mesa and Alamosa Grazing Allotments, both of which lie within the El Rito Ranger District of the Carson National Forest. The Plaintiffs allege that the eighteen-percent reduction in their permits violated the Plaintiffs’ First Amendment right to free speech and to petition for redress of their grievances. The Plaintiffs bring this action under the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4331-4370 (“NEPA”), the National Forest Management Act of 1976, Pub. L. No. 94-588, 90 Stat. 2949 (codified in scattered section of 16 U.S.C.)(“NFMA”), the Federal Sustained Yield Forest Management Act of 1944, 16 U.S.C. §§ 583, 583a-583i (“FSYMA”), and the APA. Complaint ¶ 9, at 4-5. The Plaintiffs assert that the Court has jurisdiction over this action under 28 U.S.C. §§ 1331, 1343(a)(3), 1346, 2201, and 2202. See Complaint ¶ 10, at 5.

The Plaintiffs assert that, under NEPA, all federal agencies are required to prepare an environmental impact statement (“EIS”) regarding proposed actions which will significantly affect the quality of a human environment. Complaint ¶ 23, at 9 (citing 42 U.S.C. § 4332(2)(C)). The Plaintiffs assert that agencies must prepare an EA when a proposed action’s effect is uncertain. See Complaint ¶ 24, at 10 (citing 40 C.F.R. §§ 1501.4(b), 1508.9). As part of the EIS and EAs prepared under NEPA, the Plaintiffs assert that an agency “must consider a reasonable range of alternatives and analyze both the direct and indirect impacts of all proposed major federal actions significantly affecting the human environment.” Complaint ¶ 26, at 10 (citing 40 C.F.R. § 1502.14). The Plaintiffs assert that, when a range of proposed actions are available and an EA is prepared, the EA “is considered the functional equivalent of the preferred alternative” in an EIS. Complaint ¶ 26, at 10. The Plaintiffs assert that an agency is required to “insure the professional integrity, including scientific integrity,” of the environmental analyses underlying an EIS and EA. Complaint ¶ 28, at 10 (citing Natural Res. Def. Council v. Morton, 458 F.2d 827, 838 (D.C.Cir.1972); 40 C.F.R. § 1502.24). The Plaintiffs assert that the environmental review process which NEPA requires is subject to public comment, and agencies must respond to public comments with thorough modifications, or with a thorough explanation for why no modification is necessary. See Complaint ¶29, at 10-11 (citing 40 C.F.R. § 1503.4).

The Plaintiffs assert that, under the NFMA, the USFS is required to develop land resource management plans (“Forest Plans”) for each national forest, and must implement the plan on a site-specific level. Complaint ¶¶ 30-32, at 11 (citing Pub. L. No. 94-588; 16 U.S.C. § 1604(a); 36 C.F.R. § 219.10). The Plaintiffs assert that the implementation of a Forest Plan must be consistent with the Forest Plan. See Complaint ¶ 32, at 11 (citing 16 U.S.C. § 1604(i)). The Plaintiffs assert that, under the SYFMA, the USFS must use timber and non-timber forest products within a sustained unit for the “benefit of and to stabilize the communities within each sustained yield unit.” Complaint ¶ 33, at 12 (citing 16 U.S.C. §§ 583(b), 583(a)).

The Plaintiffs assert that the USFS 1972 Region 3 Policy (“the Policy”) recognizes that northern New Mexico communities are dependent upon forest resources, declares the Spanish-American/Hispanic culture of the area to be a “resource,” and that the USFS’ “objectives and policies must be altered to the extent possible to recognize and be responsive to the culture and peoples.” Complaint ¶ 34, at 12 (citing the Policy at 3). The Plaintiffs assert that the Policy “ ‘explicitly recognized the intimate relationship that the Native American and Hispanic residents of Northern New Mexico had with the land’ ... and that ‘their economic well-being is often tied closely to the resources of the National Forests and the manner in which they are utilized.” Complaint ¶ 49, at 19-20 (quoting from the Policy at 2). The Plaintiffs assert that the Policy requires the USFS to take actions for the preservation of Spanish-American/Hispanic culture in the region, including authorizing livestock permits. See Complaint ¶¶ 35-36, at 12-13.

The Plaintiffs assert that the USFS reduced their grazing permits out of racial animus. See Complaint ¶¶ 43-44, at 17. The Plaintiffs assert that the Unit was created in 1948 “to address some of the economic and social afflictions” harming the Plaintiffs’ communities, and resulting from the reduction in their grazing permits over the years. Complaint ¶¶ 45^46, at 18. The Plaintiffs assert that, contrary to the Policy, the USFS “has, for the most part, dealt with the Hispanic communities within the Unit ..., by continuing to pursue ... a reduction in grazing permits, that have worked to further destabilize and impair the cultural, social, and economic fabric” of the Plaintiffs’ communities. Complaint ¶ 54, at 22. The Plaintiffs assert that, instead of “managing the [Ujnit to provide stability to the communities within the Unit as required by law,” the USFS’ conduct has “resulted in an increase in economic and cultural instability for the communities in the Unit.” Complaint ¶ 56, at 22.

The Plaintiffs assert that Trujillo has responded to their public criticism “by engaging in a continuing and ongoing campaign of retaliation, misusing her position to harass and punish Plaintiffs for their constitutionally protected conduct.” Complaint ¶ 57, at 23. The Plaintiffs assert that swelling of the wild horse and elk on the Unit has contributed to the destabilization of the Plaintiffs’ grazing tradition and culture. See Complaint ¶ 58, at 23. The Plaintiffs assert that, rather than reducing the number of wild horses on the Unit, as outlined in the 2002 Decision Notice, the Defendants have used the damaged forage as an “excuse to harass” the Plaintiffs about foraging conditions and to restrict their grazing rights. Complaint ¶ 61, at 25.

The Plaintiffs assert that Trujillo’s July 5, 2006 order that the Plaintiffs remove their cattle from Jarita Mesa by July 31, 2006, and her refusal to lift that order, were “motivated, in whole or in part, by a desire to retaliate against Plaintiffs for the exercise of their First Amendment rights to free speech and to petition for redress of grievances.” Complaint ¶ 70, at 28. The Plaintiffs assert that Trujillo’s actions were part of an “ongoing pattern and practice of retaliatory conduct.” Complaint ¶ 71, at 28. The Plaintiffs assert that Trujillo’s decision in 2006 to reduce S. Chacon’s grazing permit by twenty-percent had a profound economic impact on him, “costing him tens of thousands of dollars,” and also damaged the social and cultural fabric of his community and extended family. Complaint ¶ 75, at 31. The Plaintiffs assert that S. Chacon was “singled out for disparately harsh punishment by Defendant Trujillo because she perceived him as a leader of the Jarita Mesa Grazing Association,” and because the Jarita Mesa Permittees had criticized her to the government. Complaint ¶ 76, at 31. The Plaintiffs assert that Trujillo acted as she did so as to chill the Plaintiffs’ speech. See Complaint ¶76, at 31.

The Plaintiffs also assert that what Trujillo stated was an eighteen-percent increase in permits was the result of an agreement in which the Plaintiffs agreed to a shorter grazing permit, but an eighteen-percent increase in the number of permits. See Complaint ¶ 89, at 36. The Plaintiffs assert that Trujillo’s attempts to orchestrate the purchase of their permits was “completely outrageous” and beyond the scope of her duties, in addition to being in violation of the “letter and spirit” of the Policy. Complaint ¶ 91, at 37. The Plaintiffs assert that this “shocking” conduct demonstrates her “deep animosity towards the needs and aspirations of the permit-tees.” Complaint ¶ 91, at 37.

The Plaintiffs also assert that Trujillo’s 2010 Decision Notice, in which she chose to reduce the available permits by eighteen-percent, was done out of her anger towards the Plaintiffs, and because she had “determined to retaliate against the Plaintiffs for having the temerity to point out her errors and criticize her mismanagement of the two allotments and the entire Sustained Yield Unit.” Complaint ¶ 99, at 42. The Plaintiffs assert that Trujillo decided to reduce their permits by eighteen-percent “long before the Final EA was issued.” Complaint ¶ 103, at 43. The Plaintiffs assert that Trujillo’s statements regarding the current level of permittees being unsustainable “was a pretext to conceal her retaliatory motive ... to punish Plaintiffs and the other permittees for having complaint to other government officials about Defendant Trujillo’s conduct.” Complaint ¶ 104, at 44.

The Plaintiffs assert that the economic loss they have suffered and will continue to suffer because of the 2010 Decision Notice is far greater than the $32,000.00 which the USFS estimates will be their economic loss. The Plaintiffs assert that their economic injuries are “compounded by permanent, irreparable damage to the social and cultural fabric” of their communities. Complaint ¶ 107, at 45. The Plaintiffs point out that their “large extended families” share the beef they acquire from cattle raising, providing “the larger population of local residents with healthy and inexpensive meat on which they depend for a vital part of their diet,” and the Plaintiffs will now have twenty-percent less beef available for their needs. Complaint ¶ 109, at 46.

The Plaintiffs’ first count in the Complaint is alleged against Trujillo. The Plaintiffs assert that the Trujillo violated their right to free speech, “the related right to petition for redress of grievances,” and their right to freedom of association, as the First Amendment guarantees. Complaint ¶ 112, at 47. The Plaintiffs assert that they did not have an opportunity during the EA process, and during their appeal of Trujillo’s July 5, 2006, “to discover and present evidence of disparate treatment, violation of normal procedure or practice, or other evidence from which retaliatory animus may be inferred,” including the evidence that district rangers normally adhere to the proposed actions in EAs. Complaint ¶ 12, at 47. The Plaintiffs assert that they have “no remedy other than an action under the First Amendment” to remedy this asserted constitutional violation, “which resulted in a reduction in their permits for the 2011 grazing season,” a reduction which continues through the 2015 grazing season, “and to compensate them for the losses already accrued as a result of Defendant Trujillo’s retaliatory conduct.” Complaint ¶ 112, at 47-48. The Plaintiffs assert that Trujillo acted in an “arbitrary and capricious manner,” and “intentionally and/or with deliberate indifference to the First Amendment rights of Plaintiffs.” Complaint ¶ 113, at 48. The Plaintiffs also assert that Trujillo’s actions violated the APA. See Complaint ¶ 114, at 48 (citing 5 U.S.C. §§ 702, 706(2)(B)). The Plaintiffs assert that they “will suffer irreparable harm if these reductions are allowed to proceed,” and they assert that they “have no adequate remedy at law to stop them.” Complaint ¶ 115, at 48.

As their second cause of action, the Plaintiffs allege that the Defendants failed to properly analyze environmental impact in the 2010 EA, and by failing to take a “hard look” at the social, economic, and environmental justice impact each alternative would have, in violation of the APA. Complaint ¶¶ 116-119, at 48-49 (citing Natural Resources Def. Council v. Morton, 458 F.2d at 838; 5 U.S.C. §§ 702, 706(2)). The Plaintiffs allege as their third cause of action that the Defendants failed to properly analyze environmental impact in the 2010 EA by failing to develop a proper baseline with the best available science for their study, in violation of the APA. See Complaint ¶¶ 120-123, at 49 (citing 40 C.F.R. § 1502.24; 5 U.S.C. §§ 702, 706(2)). The Plaintiffs allege as their fourth cause of action that the Defendants failed to properly consider and respond to comments, and failed to consider a reasonable range of alternatives in the 2010 EA, in violation of NEPA and the APA. See Complaint ¶¶ 124-127, at 49-50 (citing 40 C.F.R. 1503.4; 36 C.F.R. § 220.4(c); 5 U.S.C. §§ 702, 706(2)(B)). As their fifth cause of action the Plaintiffs allege that Trujillo failed to consider the findings in the 2010 EA when she made her 2010 Decision Notice, in violation of NEPA and the APA. See Complaint ¶¶ 128-131 (citing 36 C.F.R. § 220.4(c)(4); 5 U.S.C. §§ 702, 706(2)). As their sixth cause of action, the Plaintiffs allege that the Defendants failed to follow the Carson National Forest Plan range standards and guidelines related to grazing numbers, in violation of the NFMA and the APA. See Complaint ¶¶ 132-136, at 50-51 (citing 16 U.S.C. § 1604(f); 5 U.S.C. §§ 702, 706(2)(B)). As their seventh cause of action, the Plaintiffs allege that the Defendants failed to follow the Carson National Forest Plan’s range standards and guidelines related to the management of wild horses on the Jarita Mesa Allotment, in violation of the NFMA and the APA. See Complaint ¶¶ 137-140, at 51-52 (citing 5 U.S.C. §§ 702, 706(2)). As their eighth cause of action, the Plaintiffs allege that the Defendants violated the SYFMA and the APA, by failing to use the Carson National Forest for the benefit of the communities within the Unit. See Complaint ¶¶ 141-143, at 52 (citing 5 U.S.C. §§ 702, 706(2)). As their ninth cause of action, the Plaintiffs allege that the Defendants violated the Policy and the APA, by failing to manage the Allotments in a manner that is responsive to and compatible with the well-being of the local resource-dependent communities, and did so without a reasonable explanation. See Complaint ¶¶ 144-146, at 52-53 (citing 5 U.S.C. §§ 702, 706(2)).

The Plaintiffs request various forms of relief. The Plaintiffs request that the Court: (i) declare that the “acts complained of herein violated the First Amendment rights” of the Plaintiffs, Complaint ¶ 1, at 53; (ii) declare that any future reductions to the number of cattle permitted on the Allotments for the 2012-2015 grazing seasons, based on Trujillo’s 2010 Decision Notice, would be contrary to the Constitution, see Complaint ¶ 2, at 53; (iii) declare that the Defendants violated NEPA by failing to analyze adequately, or to “take a hard look” at the social, economic, and environmental impacts which would result from the 2010 EA and 2010 Decision Notice for the Allotments, Complaint ¶ 3, at 53; (iv) declare that the Defendants violated NEPA by “failing to properly analyze impacts insofar as they failed to develop or use a proper baseline based on the best available science,” Complaint ¶ 4, at 53; (v) declare that the Defendants violated NEPA by failing to properly consider and respond to comments and by failing to consider a reasonable range of alternatives, see Complaint ¶ 5, at 54; (vi) declare that Trujillo violated NEPA by failing to consider the alternatives the EA analyzed before issuing the 2010 Decision Notice, see Complaint ¶ 6, at 54; (vii) declare that the Defendants violated NFMA by failing to act in accordance with the Carson National Forest Plan’s range standards and guidelines regarding grazing numbers, see Complaint ¶ 7, at 54; (viii) declare that the Defendants violated NFMA by failing to act consistently with the Carson National Forest Plan’s range standards and guidelines regarding wild horse management, see Complaint ¶ 8, at 54; (ix) declare that the Defendants violated the Plaintiffs’ rights under the SYFMA, by failing to manage the forest for the benefit of the communities within the Unit, see Complaint ¶ 9, at 54; (x) declare that the Defendants violated the Policy by failing to be responsive to the needs of the local, resource-dependent communities and failing to act in a way that supports their future well-being, see Complaint ¶ 10, at 54; (xi) declare that the Defendants’ actions violated the APA by not observing the procedures required by law, and were arbitrary and capricious “and/or unconstitutional,” Complaint ¶ 11, at 55; (xii) issue a judgment and injunction which voids the 2010 Decision Notice and orders the Defendants to adhere to the second alternative the 2010 EA which would allow the Plaintiffs to keep their permits at approximately the same levels as before the 2010 EA was issued, see Complaint ¶ 12, at 55; (xiii) issue an injunction that compels the USFS to comply with NEPA, NFMA, SYFMA, and the APA, so as to prevent irreparable harm and satisfy the public interest, see Complaint ¶ 13, at 55; (xiv) issue an injunction which requires the Defendants to adhere to the second alternative in the 2010 EA, see Complaint ¶ 14, at 55; (xv) award compensatory damages, against Trujillo, to the Plaintiffs who had their permits reduced in the 2011 grazing season and any subsequent grazing season, see Complaint ¶ 15, at 55; (xvi) award punitive damages against Trujillo, see Complaint ¶ 16, at 56; (xvii) award the Plaintiffs their “costs, expenses, expert witness fees, and reasonable attorney fees under applicable law,” Complaint ¶ 17, at 56; and (xviii) grant the Plaintiffs “such other and further relief as the Court deems proper,” Complaint ¶ 18, at 56.

Trujillo and USFS move to dismiss Count I and the corresponding relief requested in paragraphs 1, 2, 15, and 16 of the Complaint, at 53-56. See MTD at 1. The Defendants argue that the Court should dismiss Count I, because: (i) Bivens does not provide a remedy for purported violations of the Plaintiffs’ First Amended rights; (ii) the Plaintiffs have failed to plead sufficient facts to support a retaliatory motive; and (iii) Trujillo is entitled to qualified immunity. See MTD at 1. The Defendants also argue that the Court should dismiss the Plaintiffs request for declaratory relief against Trujillo because it is not appropriate to declare that a plaintiffs constitutional rights were violated. See MTD at 1-2.

The Defendants first allege that the Plaintiffs alleged violation of their First Amendment rights is not a cause of action available against federal officials under Bivens. The Defendants assert that a Bivens suit is not available for all constitutional torts that federal officials may commit. See MTD at 5 (citing Corr. Servs. Corp v. Malesko, 534 U.S. 61, 76, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001)). The Defendants assert that the Supreme Court has “cautioned that a damages remedy should not be inferred from the Constitution where’ special factors counsel hesitation in the absence of affirmative action by Congress.’ ” MTD at 5 (quoting Bivens, 403 U.S. at 396-97, 91 S.Ct. 1999). The Defendants assert that “the Supreme Court has repeatedly recognized that the availability of other remedies created by Congress as part of a comprehensive remedial scheme may constitute a’ special factor’ counseling against a Bivens remedy even where those remedies provide less than complete relief to an injured plaintiff.” MTD at 5 (quoting Bush v. Lucas, 462 U.S. 367, 390, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983)).

The Defendants assert that, in Wilkie v. Robbins, 551 U.S. 537, 550, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007), the Supreme Court of the United States held that a Bivens remedy should only be inferred if: (i) no alternative process for protecting a constitutional interest exists; and (ii) there are no special factors counseling hesitation against a judicially created remedy. See MTD at 5. The Defendants assert that the Supreme Court has only twice implied a damages remedy under Bivens, and has, since its decision in Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980), “refused to extend Bivens liability to any new context or new category of defendants.” MTD at 5-6 (quoting Wilkie v. Robbins, 551 U.S. at 549-550, 127 S.Ct. 2588). The Defendants assert that, in Wilkie v. Robbins, the Supreme Court declined to recognize a Bivens remedy for claims of First Amendment violations by federal officials or employees. See MTD at 6.

The Defendants further argue that, under the United States Court of Appeals for the Tenth Circuit’s precedent, courts should defer to a congressional remedy scheme where one exists, even if incomplete, if “indications exist that Congress’ inaction in creating a damages remedy for constitutional violations was not inadvertent.” MTD at 6 (citing Robbins v. Wilkie, 300 F.3d 1208, 1212 (10th Cir.2002)). The Defendants assert that the APA is a “comprehensive statutory scheme for review of improper agency action, including unconstitutional agency action, such as Plaintiffs allege here.” MTD at 7 (citing 5 U.S.C. § 706). The Defendants assert that, under La Compania Ocho v. U.S. Forest Serv., 874 F.Supp. 1242, 1246-47 (D.N.M.1995), the remedies provided under the APA preclude the availability of a Bivens remedy, where the alleged violation is an agency action that the APA covered. See MTD at 7. The Defendants assert that La Compania Ocho v. U.S. Forest Serv. raised issues factually and legally similar to the Plaintiffs claim in Count I, and that the court found that the APA precluded a Bivens action against Forest Service officials and employees’ whose actions were covered by the APA. See MTD at 8-9.

The Defendants assert that, because the Plaintiffs do not dispute that the 2010 Decision Notice is an “agency action” subject to judicial review under the APA, and because the Plaintiffs seek review of the 2010 Decision Notice in their Complaint, the Court should dismiss their Bivens action. See MTD at 10.

Regarding the Defendant’s argument that the Plaintiffs have failed to state sufficient facts to show that Trujillo plausibly acted with a retaliatory motive, the Defendants assert that the Plaintiffs must establish that: (i) the Plaintiffs were engaged in a constitutionally protected activity; (ii) Trujillo’s actions caused the Plaintiffs to suffer an injury that would “chill a person of ordinary firmness from continuing to engage in the activity;” and (iii) Trujillo’s action was “ ‘substantially motivated as a response to the plaintiffs exercise of constitutionally protected conduct.’ ” MTD at 10 (quoting Worrell v. Henry, 219 F.3d 1197, 1212 (10th Cir.2000)). The Defendants contend that the Plaintiffs’ Complaint contains only “labels and conclusions” in support of their allegation that Trujillo acted with a retaliatory motive. MTD at 10. The Defendants assert that the only motive which the Plaintiffs have alleged is that Trujillo was “motivated by the desire to end grazing on the allotments,” and that her actions “ ‘reflect the Forest Service’s long-standing failure to properly manage and balance’ the numbers of elk, wild horses and livestock.” MTD at 11 (quoting Complaint ¶ 67, at 27). The Defendants contend that these facts do not support a retaliatory motive and, on that basis, the Court should dismiss Count I for failure to state a claim. See MTD at 11.

The Defendants also argue that the Plaintiffs are not entitled to declaratory relief that their constitutional rights were violated. The Defendants assert that, if a federal court were to grant a declaratory judgment that Trujillo violated their First Amendment Rights in the past it would be an improper declaratory judgment, in that the judgment would not resolve a dispute, and would “not help to redress the harm Plaintiffs claim to have suffered.” MTD at 11-12 (citing Wilton v. Seven Falls, Co., 515 U.S. 277, 286, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995); Exxon Shipping Co. v. Airport Depot Diner, Inc., 120 F.3d 166, 168 (9th Cir.1997); Gerlich v. United States Dep’t of Justice, 659 F.Supp.2d 1, 19 (D.D.C.2009)).

Lastly, the Defendants assert that Trujillo is entitled to qualified immunity, because the Plaintiffs have failed to set forth a plausible claim for relief in Count I. The Defendants assert that “the sufficiency of [the Plaintiffs] pleadings is both ‘inextricably intertwined with’ ... and ‘directly implicated by’ ... the qualified immunity defense.” MTD at 12 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 672, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)(internal quotations omitted)). The Defendants assert that the Plaintiffs do not have a Bivens action against Trujillo, have not alleged sufficient facts to state a plausible claim for First Amendment retaliation, and are not entitled to declaratory judgment against Trujillo, and thus the Defendants assert that Trujillo is entitled to qualified immunity from the Plaintiffs’ claims in Count I. See MTD at 12.

The Plaintiffs respond that, to establish a violation of the First Amendment right to free speech for retaliatory conduct, they need demonstrate only: (i) that the Plaintiffs engaged in constitutionally protected activity; (ii) “that Defendants’ actions caused Plaintiffs to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity;” and (iii) that the Defendants’ “adverse action was substantially motived as a response to Plaintiffs’ exercise of constitutionally protected conduct.” Plaintiffs’ Memorandum in Response to Defendants’ Motion to Dismiss Count I, filed June 21, 2012 (Doc. 22)(“Response”). The Plaintiffs assert that they “need only present sufficient facts from which the jury may infer that their protected conduct was a motivating, not the sole or even the primary, reason for the challenged action.” Response at 15 (citing Vill. of Arlington Hts. v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977)). The Plaintiffs assert that retaliatory or discriminatory intent or animus, sufficient to demonstrate causation and defeat a motion to dismiss, “may be established through evidence of disparate treatment and through evidence that a defendant’s proffered explanation is a pretext.” Response at 15 (citing Randle v. City of Aurora, 69 F.3d 441 (10th Cir.1995)). The Plaintiffs assert that the factfinder may infer an improper motive from “evidence of pretext.” Response at 15 (citing St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)). The Plaintiffs thus assert that they need only allege sufficient circumstantial evidence of pretext to survive a motion to dismiss. See Response at 16 (citing Randle v. City of Aurora, 69 F.3d at 451).

The Plaintiffs also assert that retaliatory intent is rarely supported by direct evidence, and thus, where circumstantial evidence is used to show improper intent, the factfinder “may view each piece of evidence in combination with one another ... and dismissal of a claim is improper where the jury could find the proffered explanation was a pretext from the totality of the evidence.” Response at 16 (citing Bisbee v. Bey, 39 F.3d 1096, 1101 (10th Cir.1994)). The Plaintiffs assert that the Tenth Circuit has “emphasized that: ‘Judgments about intent are best left for trial and are within the provision of the jury.’ ” Response at 16 (quoting Randle v. City of Aurora, 69 F.3d at 453). The Plaintiffs also assert that pretext may be established through “weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the defendant’s proffered explanation” which are of a sufficient gravity that a factfinder could reasonably find that the defendant’s explanation is unworthy of credence. Response at 16 (citing EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1198 (10th Cir.2000)). The Plaintiffs assert that the Complaint “includes sufficient allegations of specific facts which under the established methods of alleging and proving unconstitutional motive or intent constitute sufficient allegations of improper motive.” Response at 17.

The Plaintiffs assert that the Complaint “is replete with allegations of specific facts that constitute indirect, circumstantial evidence of pretext sufficient to allow a reasonable trier of fact to find retaliatory animas [sic].” Response at 17. The Plaintiffs specifically assert that the following facts demonstrate Trujillo’s retaliatory motive towards the Plaintiffs:

1. Defendant Trujillo’s decision to disregard the Proposed Action recommended in the EA was a departure from and violated established practice and policy by the District Rangers within the various ranger districts in the Carson and Santa Fe National Forests to adopt the proposed actions recommended in an EA. [ (citing Complaint ¶¶ 97-99, at 40-42) ].

2. Defendant Trujillo’s decision to implement that 18% reduction rather than adopt the EA Proposed Action was a departure from and violated the mandatory procedures required by Defendant Forest Service’s 2002 Decision Notice to be implemented before reducing grazing permits when the size of the wild horse herd exceeded 20-70 horses. [ (citing Complaint ¶¶ 59-60, at 23-24; id. ¶¶ 100-101, at 42-43) ].

3. The proffered explanations put forward by Defendant Trujillo to justify her decision to disregard the Proposed Action recommended by the Interdisciplinary Team in the EA were implausible because they were false, and a reasonable trier of fact could rationally find her explanations unworthy of credence. [ (citing Complaint ¶¶ 100-102, at 42^13) ].

4. Defendant Trujillo’s decision to disregard the Proposed Action in the EA and to implement an 18% reduction in grazing permits was a departure from and violated numerous provisions of the Forest Service’s 1972 Region 3 Policy. [ (citing Complaint ¶¶ 49-53, at 19-21; id. ¶¶ 107-109, at 45-46) ].

5. Defendant Trujillo’s concerted efforts to obtain buy-outs of the grazing permits of permittees on the Jarita Mesa and Alamosa Allotments who had not asked her to do so exceeded the scope of her duties as District Ranger as to give rise to an inference of retaliatory animus. [ (citing Complaint ¶¶ 89-91, at 36-37)].

6. Defendant Trujillo engaged in numerous acts of retaliation against Plaintiffs from 2006 through 2009 and 2010 sufficient to constitute an unwritten custom and practice of retaliation. [ (citing Complaint ¶ 61, at 24-25; id. ¶ 66, at 26-27; id. ¶ 68, at 27-28; id. ¶¶ 72-75, at 28-30; id. ¶ 79, at 32; Complaint ¶¶ 89-91, at 36-37; id. ¶¶ 97-104, at 40-44).]

Response at 17-18. The Plaintiffs assert that the Defendants have ignored the “numerous factual allegations in the Complaint set forth above which contain specific facts that constitute circumstantial evidence of pretext sufficient to allow the trier of fact to infer retaliatory animus.” Response at 18. The Plaintiffs also assert that “under well established case law Plaintiffs have alleged a plethora of circumstantial evidence of the type that courts have repeatedly held to be sufficient basis from which a reasonable trier of fact may infer that the conduct complained of was’ substantially motivated’ by retaliatory animus.” Response at 18.

The Plaintiffs assert that they need not allege that their protected conduct was a substantial motivating factor in the Trujillo’s decisions, nor do they need to establish that their conduct was the sole or primary reason for Trujillo’s violations. See Response at 19 (citing Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. at 265, 97 S.Ct. 555). The Plaintiffs further assert that Trujillo’s May, 21, 2009, letter was clearly set forth in the Complaint as containing retaliatory threats to the Plaintiffs’ protected speech in the form of complaint letter to Trujillo’s supervisor, Governor Richardson, and the New Mexico Congressional delegation. See Response at 19 (citing Complaint ¶¶ 79-80, at 32-33). The Plaintiffs further assert that the Complaint alleges that Trujillo attempted to buy out their permits to the Unit “to rid the Carson National Forest of Plaintiffs and their Cattle.” Response at 20 (citing Complaint ¶ 90, at 37). The Plaintiffs contend that these allegations are consistent with the Plaintiffs’ theory that Trujillo “was trying to retaliate against them.” Response at 20.

The Plaintiffs also assert that they are entitled to proceed against Trujillo in her individual capacity under Bivens. The Plaintiffs assert that the Defendants “misapprehend the nature of Plaintiffs claim for damages” and the adequacy of the APA to address those claims. Response at 20-21. The Plaintiffs assert that, although the Supreme Court held in Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983), that a federal employee could not bring a Bivens claim for a violation of his First Amendment rights, that decision was limited to the Supreme Court’s finding that the “[c]ongressionally created federal civil service procedures ... provided meaningful redress for civil service employees” through “an elaborate remedial system that has been constructed step by step, with careful attention to conflicting policy considerations.” Response at 22. The Plaintiffs assert that a Bivens suit is available to redress a First Amendment violation where Congress has not created such an ‘“elaborate remedies system.’” Response at 22 (quoting Nat'l Commodity and Barter Ass’n v. Archer, 31 F.3d 1521, 1527 (10th Cir.1994)). The Plaintiffs assert that, when “a plaintiff ... has set forth a clear ... claim alleging retaliation for the exercise of a clearly protected First Amendment conduct, a Bivens action will not be barred unless there is an alternative remedy available to the plaintiff that contains a sufficient deterrent effect for potential defendants.” Response at 24-25 (citing Minneci v. Pollard, — U.S. -, 132 S.Ct. 617, 181 L.Ed.2d 606 (2012); Carlson v. Green, 446 U.S. at 21, 100 S.Ct. 1468).

The Plaintiffs assert that they may bring their claims in Count I under Bivens against Trujillo, because the First Amendment violation they allege is a well-recognized constitutional action, because the APA does not provide an adequate remedy for persons who criticize federal officials and suffer retaliation from the officials in response, and because the APA does not provide an incentive to deter future unconstitutional conduct. See Response at 25. The Plaintiffs assert that Trujillo retaliated against them for the Plaintiffs’ criticism of her by sending the May, 2009, threatening letter, attempting to buyout their permits with outside groups, and adopting a plan to reduce the Plaintiffs’ permits by eighteen-percent in response to the 2010 Environmental Assessment. See Response at 25-26. The Plaintiffs contend that the APA’s remedies are “not an even remotely adequate or comparable alternative to the compensatory and punitive monetary damages that would be available [against] Defendant Trujillo [for her] unconstitutional retaliation under Plaintiffs’ Bivens claim.” Response at 26. The Plaintiffs contend that the APA is an inadequate remedy, because it does not provide for full compensatory and punitive damages. The Plaintiffs contend in the Complaint that the equitable relief available under the APA will not redress the monetary harms they allege they have suffered. See Response at 26 (citing Dep’t of the Army v. Blue Fox, Inc., 525 U.S. 255, 262, 119 S.Ct. 687, 142 L.Ed.2d 718 (1999); Bowen v. Massachusetts, 487 U.S. 879, 895, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988)). The Plaintiffs also assert that the APA will not serve a deterrent effect, because punitive damages are not available under the APA. See Response at 26. The Plaintiffs thus assert that their available relief under the APA is a stark contrast to the situations of other plaintiffs for whom the Supreme Court has denied a Bivens suit, because an alternative remedy “provided ‘roughly similar incentives for potential defendants to comply’ ” with the plaintiffs’ constitutional rights. Response at 26-27 (quoting Minneci v. Pollard, 132 S.Ct. at 625).

The Plaintiffs assert that “[although at this stage of the proceedings it is unclear what specific monetary relief may be available under the APA for past economic loss” caused by the Defendants’ allegedly unlawful conduct, they nonetheless contend that the relief available to them under the APA “will not be designed or able to fully compensate Plaintiffs’ for all the harms they claim to have suffered as a result of Defendant Trujillo’s alleged constitutional violation.” Response at 27. The Plaintiffs assert that, because the USFS, and not Trujillo, would pay any monetary relief awarded to the Plaintiffs under the APA, “Trujillo would face no consequences whatsoever for her unconstitutional conduct.” Response at 72. The Plaintiffs assert that the Supreme Court has found “precisely this lack of consequences to the offending individual employee” to be a proper basis for allowing a Bivens suit. Response at 27 (citing Carlson v. Green, 446 U.S. at 21-22, 100 S.Ct. 1468). The Plaintiffs assert that the defendants have not explained how, in light of the need to deter similar conduct by other federal officials, the APA is “an alternative remedy sufficient to bar a Bivens action.” Response at 28 (citing Minneci v. Pollard, 132 S.Ct. at 625). The Plaintiffs assert that district courts in other districts have similarly found that the APA is not a “congressional comprehensive