Citations
- 140 F. Supp. 3d 1123
Full opinion text
MEMORANDUM OPINION AND ORDER
JAMES 0. BROWNING, District Judge.
THIS MATTER comes before the Court on the Federal Defendants’ Motion and Memorandum to Dismiss Plaintiffs’ Remaining Claims, filed February 10, 2015 (Doc. 144) (“MTD”). The Court held a hearing on May 21, 2015. The primary issues are: (i) whether the Plaintiffs who suffer no economic injury can establish standing; ‘ (it) whether the Plaintiffs’ alleged injuries fall within the “zone of interests” of the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4331-4370 (“NEPA”); (iii) whether the Plaintiffs properly exhausted their administrative remedies; (iv) whether the Plaintiffs’ claim that the Forest Service violated the National Forest Management Act of 1976, Pub.L. No. 94-588, 90 Stat. 2949 (codified in scattered sections of 16 U.S.C.)(“NFMA”), by failing to remove wild horses is a judicially cognizable claim; (v) whether the Forest Service’s guidance document is judicially enforceable; and (vi) whether the Sustained Yield Forest Management Act of 1944, 16 U.S.C. §§ 583, 583a-583i (“SYFMA”), governs the Forest Service’s issuance of livestock grazing permits.
The Court concludes that the Plaintiffs who suffer no economic injury nonetheless have standing to redress their environmental, aesthetic, cultural, and recreational injuries. The Plaintiffs’ injuries also fall within the zone of interests that the NEPA seeks to protect, although they may not pursue all of the remedies which they seek in the Complaint, filed January 20, 2012 (Doc. 1). Next, the Court concludes that the Plaintiffs have exhausted only some of their administrative remedies. The Court dismisses the unexhausted claims without prejudice to allow the Plaintiffs to exhaust their remaining claims before pursuing them in federal, court. Even if the Plaintiffs had exhausted their remaining claims, however, the Court concludes that: (i) the Plaintiffs’ claim that the Defendants violated the NFMA by. failing, to remove wild horses, Count Seven, is not judicially cognizable; (ii) the Forest Service’s guidance document is not judicially enforceable under the Administrative Procedure Act, 5 U.S.C. §§ 702-706, Pub.L. No. 79-404, 60 Stat. 237 (“APA”), making Count Nine .unenforceable; and (iii) the Plaintiffs’ claim that the Defendants violated the SYFMA, Count Eight, fails to, state a claim on which relief can be granted pursuant to Federal Rule of. Civil Procedure 12(b)(6). The Court , grants the Motion as to the Complaint’s Counts Three, Four, Six, Seven, Eight, and Nine. The Motion is denied as to the Complaint’s Counts Two and Five.
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 that they say are inextricably intertwined with the Plaintiffs’ cattle grazing within the Carson National Forest in northern New Mexico. The Plaintiffs also allege a history of tension between the Forest Service and the Plaintiffs’ ancestors, 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-eonclusory 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 January 20, 2012 (Doc. l)(“Complaint”).
1. The Parties to the Litigation.
“The Plaintiffs and their ancestors are Hispanic' stockmen whose families have been grazing livestock” in northern New Mexico for many generations. Complaint ¶3, at 2-3. Most of the natural-person Plaintiffs’ families were grazing livestock in the area that is now the Valleeitos Federal Sustained Yield Unit (“the Unit”) before the Forest Service existed. Complaint ¶ 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 Complaint ¶ 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.” Complaint ¶ 3, at 3.
The Jarita Mesa Allotment and the Ala-mosa Allotment are areas within the Unit where cattle grazing is allowed. See Complaint ¶ 2, at 2. Plaintiffs Sebedeo Chacon, Michael Pena, Juan Giron, Gabriel Aldaz, Arturo Rodarte, Thomas Griego, Donald Griego, Joe Gurule, Jr., Lorenzo Jaramillo, Jeffrey Chacon, and Gloria Valdez (collectively, “the Jarita Mesa Permittees”) have permits that the Forest Service issued, which allow them to graze cattle on the Jarita Mesa Allotment. Complaint ¶ 3, at 2. T. Griego, D. Griego, Plaintiffs Carlos Ortega, Leon Ortega, Daniel Rael, Horacio Martinez, Ronald Martinez, Fernando Gu-rule, Jerry Vasquez, and Alfonso Chacon (collectively, “the Alamosa Permittees”) have permits that the Forest Service issued, which allow them to graze cattle on the Alamosa Allotment. Complaint ¶ 3, at 2. Plaintiff Steve Chavez is a former per-mittee on the Alamosa Allotment and now lives within the Unit with his wife, Plaintiff Vangie Chavez. See Complaint ¶ 3, at 2. J. Valdez is a former permittee on the Jarita Mesa Allotment and now resides within the Unit. See Complaint ¶ 3, at 2-3. The Jarita Mesa Grazing Association and the Alamosa 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 Allotments; (ii) manage and share the costs of handling livestock, range improve: ments, and other programs for the benefit of the Allotments and their resources; (iii) express the Associations’ members’ wishes; and (iv) meet with and work with the Forest Service to ensure proper management of livestock and range resources on the allotments. See Complaint ¶ 13, at 6. S. Chacon was president of the Jarita Mesa Grazing Association throughout the events set forth in the Complaint. See Complaint ¶ 14, at 6. T. Griego was president of the Alamosa Grazing Association throughout the events set forth in the Complaint. See Complaint ¶ 15, at 7.
The Hispanic people in northern New Mexico have lived in the area for hundreds of years, long before Congress created the Forest Service. See Complaint ¶ 37, at 13; The Hispanic people living in villages near 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. Complaint ¶39, at 14. Livestock grazing has been central to them cultural, social, and economic fabric since at least the 1690s. See Complaint ¶40, at 14. The Associations represent the communities “that have historically relied on, and continue to rely on, grazing on these ancient community ... lands.” Complaint ¶ 40, at 15.
Plaintiff 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 of the Carson National Forest, including the Allotments and the El Rito Ranger District, is located. See Complaint ¶ 16, at 7. The Individual Plaintiffs are all residents of Rio Arriba County. Rio Arri-ba County and local school districts receive payments derived from the grazing fees, in lieu of taxes, from the Forest Service. 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, and in the economic betterment of its citizens. Rio Arriba County is further 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.” Complaint ¶ 16, at 7.
The Forest Service 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.” Complaint ¶ 17, at 8. The Forest Service is charged with the Unit’s management. Throughout the events set forth in the Complaint, the Forest Service employed Defendant Diana Trujillo as the El Rito District Ranger. Complaint ¶ 19, at 8. Both Allotments 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.” Complaint ¶ 19, at 8.
2. The Events Giving Rise to the Litigation.
“[A]ll or a substantial part of the events or omissions giving rise to the [Plaintiffs’] claims ... occurred within this judicial district.” 'Complaint ¶ 12, at 5. Beginning in the 1920s, the Forest Service’s management practices led to a reduction in the number of Hispanic residents near the Carson National Forest who were allowed to graze in the forest under permit.' See Complaint ¶ 43, at 16-17. The Forest Service 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 Complaint ¶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. Complaint f57,.at 22-23. The Plaintiffs have written letters, spoken at public meetings, and contacted their congressional representatives about the Defendants’ actions. See Complaint ¶ 57, at 23.
Under the Forest Service’s management, the population of wild horses and elk on- the Unit has grown to the point that the vegetative cover, which the Plaintiffs rely on to graze their cattle, has degraded. See Complaint ¶ 58, at 23. In 2002, the Forest Service concluded that the wild horses on Jarita Mesa were competing with the cattle for fox-age. See Complaint -¶ 59, at 23. In 2002, the Forest Service, issued a Decision Notice (“2002 Decision Notice”), which authorizes the number of wild horses to increase from between twelve and fourteen, to between twenty and seventy. Complaint ¶ 60, at 24. The 2002 Decision Notice provides certain measures to be taken if the wild horse herd size grows above seventy horses. See Complaint ¶ 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’s then-Governor Bill Richardson and :to the New Mexico Congressional delegation, which over eighty residents .of the Unit signed, and in which S. .Chacon complained about the Forest Service’s management of the El Rito Ranger. District. The letter specifically complained about the Forest Service’s failure to reduce the number of wild horse herds and to, control the number of elk herds on the. Unit. See Complaint ¶ 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 gx-azing time allowed under their permits, and was otherwise impairing their grazing rights” under the permits. Complaint ¶ 63, at 25. In June, 2006, a Forest Sex-vice employee, admitted that the wild horse herd, exceeded the number that the 2002 Decision Notice allowed and! numbered 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 Complaint ¶ 66, at 26. Some of the Plaintiffs, including S: Chacon and Aldaz, appealed Trujillo’s order. See Complaint ¶ 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 Complaint ¶ 68, at 27. On July 28, 2006, acting Carson Forest Supervisor Kendall Clark decided to delay Trujillo’s order for two weeks, because of recent rains and soil moisture levels. A report by the Range Improvement Task Force (“RI Task Force”), associated with New Mexico State University (“NMSU”), subsequently found that the past grazing of the permittees’ 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' Complaint ¶ 69, at 28.
Dr. David Correia, a professor of American Studies at the University of New Mexico, is a scholar who had been researching the Unit’s history over several years. Dr. Correia had been previously granted full access to the Forest Service records at the El Rito District Office for his research on the Unit. In 2006, he began assisting the Plaintiffs with their interactions with Trujillo. Dr. Correia attended , a meeting in the El Rito area regarding grazing issues, at which Trujillo made statements to the effect that Unit residents caused most or all of the problems facing the Unit. . Nee Complaint ¶72, at 28. Dr. Correia responded publicly at the meeting that the Forest Service’s mismanagement of the Unit over the years was the source of the Unit’s problems. Subsequent to the 2006 meeting, Trujillo refused to allow Dr. 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 Complaint ¶ 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 that she had imposed — conditions that, had they been met, would have 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 Complaint ¶ 73, at 29. Trujillo responded that she would view S. Chacon’s request as 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 Complaint ¶74, at 30.
As of October 5, 2006, S. Chacon had seventeen cows lost in the Carson National Forest. Given the size of the Allotments, locating cattle at the end of a grazing season is often difficult for the permittees. 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 Complaint ¶ 75, at 30-31. A Riparian Specialist and Natural Resource Specialist from New Mexico State University wrote to Trujillo regarding S. Chbcon’s permit reduction, and expressed’ that her standards were “unreasonable and unyielding,” and that the Forest Service was aware that S. Chacon was not given enough time to recover his cattle. Complaint ¶77, at 31-32.
Three years later, in the spring of 2009, the Plaintiffs complained to Trujillo and her staff regarding the Forest Service’s 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 Complaint ¶ 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 alleged that Trujillo had failed to “install needed cattle guards or to fix plugged ones,” and that Trujillo would sanction the permittees when their cattle drifted from one allotment to another. Complaint ¶ 80, at 32-33. The Plaintiffs complained that they believed Trujillo was attempting to end grazing on the Allotments. See Complaint ¶ 80, at 33.
In 2009 and 2010, the Forest Service began preparing an Environmental Assessment (“EA”) that would determine the amount of grazing allowed on the Allotments for 2011 and subsequent years. See Complaint ¶ 78, at 32. On August 20, 2009, the Forest Service 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 Forest Service requested comments from the RI Task Force regarding the EA’s proposals. The RI Task Force had been studying the socioeconomic and environmental effects and implications of Forest Service decisions regarding the Allotments for many years. See Complaint ¶82, at 33. The RI Task Force sent a letter to Trujillo expressing concern over the EA’s scientific methodology, and the RI Task Force noted that the permittees “feel discouraged and powerless vis-a-vis” the Forest Service, as the strained relationship of the two over recent years evidences. Complaint ¶ 82, at 34. The RI Task Force 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 Complaint ¶ 84, at 34. The RI Task Force also recommended a longer grazing season. See Complaint ¶ 84, at 34.
Rio Arriba County submitted a letter to' the Defendants on September 17, 2009, in which it expressed concern about 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 Forest Service should, as part of the upcoming EA, consider managing the wild horse and elk populations. See Complaint ¶ 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 Complaint ¶ 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, never been reduced to the correct level. See Complaint ¶89, at 86. Trujillo also stated that she had been working with outside groups regarding the possibility of purchasing the Plaintiffs’ permits. See Complaint ¶ 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. Trujillo contacted outside groups later in January and suggested that they purchase the Plaintiffs’ permits. See Complaint ¶ 90, at 37.
In March, 2010, the Plaintiffs submitted a petition to Carson National Forest Supervisor Clark, and Corbin Newman, the Regional Forester, which over 200 Unit residents signed, 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. Complaint ¶ 92, at 38.
On September 30, 2010, the Forest Service issued its EA. See Complaint ¶ 4,’ at 3. The EA contains approximately one page describing the socioeconomic and cultural impact that the proposed actions may have. See Complaint ¶ 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. It added that 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 Complaint ¶ 97, at 40. The EA thus designated the second alternative as. the Proposed Action. See Complaint ¶ 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.” Complaint ¶ 4, at 3; id. ¶ 98, at 41. Normally, the District Ranger for the Carson and Santa Fe National Forests in New Mexico 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 Complaint ¶ 5, at 3. Trujillo stated that she took this action because the current number of permitted .livestock on the Unit was unsustainable. See Complaint ¶ 6, at. 3-4; id. ¶ 100, at 42. The EA did not conclude 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 Complaint ¶ 105, at 44. In 2011, Trujillo’s’ supervisors ruled on the appeal and announced that they were upholding her decision. See Complaint ¶ 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.”- Complaint ¶ 17, at 8. The Plaintiffs state that the loss of grazing permits “causes not only severe economic harm to Plaintiffs but also grave damage to the viability of the unique cultural and social fabric of their families and communities.” Complaint ¶ 17, at 8. They 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.
The Plaintiffs also assert that Trujillo stated that the eighteen-percent increase in permits was the result of an agreement in which-the Plaintiffs agreed to a shorter grazing permit term, 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 Policy’s “letter and spirit.” Complaint ¶ 91, at 37. The Plaintiffs assert that this “shocking” conduct demonstrates her “deep animosity towards the needs and aspirations, of the permittees.” 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 complainfed] 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 Forest Service’s $32,000.00 estimate. 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.
PROCEDURAL BACKGROUND
The Plaintiffs filed suit in federal court on January 20, 2012. See Complaint at 1. They assert nine causes of action. They request declaratory, injunctive, and monetary relief. See Complaint at 53-56.
1. The Claims in the Complaint.
- All of the Plaintiffs’ alleged injuries are related to Trujillo’s 2010 decision to reduce grazing on the Jarita Mesa and Ala-mosa Grazing Allotments, both of which lie within the El Rito Ranger District of the Carson National Forest. The Plaintiffs initially alleged that the eighteen-percent reduction, in their permits violated their First Amendment right to free speech and to petition for redress of their grievances, but the Court dismissed these claims for failure to exhaust administrative remedies. See Amended Memorandum .Opinion, filed November 18, 2014 (Doc. 135). The Plaintiffs bring their remaining claims under the NEPA, the NFMA, the SYFMA, and the APA. Complaint ¶ 9, at 4r5, 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 the NEPA, all federal agencies are required to prepare an environmental impact statement (“EIS”) regarding proposed actions that 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). The Plaintiffs contend that, as part of the EIS and EAs prepared under the NEPA, 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 argue 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 allege that the environmental review process that the NEPA requires is subject to public comment, and that agencies must respond to public comments with thorough modifications or thorough explanations for why no modification is necessary. See Complaint ¶ 29, at 10-11 (citing 40 C.F.R. § 1503.4).
The Plaintiffs assert that the NFMA requires the Forest Service 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 Forest Service 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 *83, at 12 (citing 16 U-.S.C. §§ 583(b), 583(a)).
The Plaintiffs assert that the Forest Service’s 1972 Region 3 Policy on Managing National Forest Land in Northern New Mexico (“the Policy”) recognizes that northérn New Mexico communities are dependent upon forest resources, declares the Spanish-American/Hispanic culture of the area to be a “resource;” and acknowledges that the Forest Service’s “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 the Policy at 2). The Plaintiffs assert that the Policy requires the Forest Service'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 argue that the Forest Service reduced their grazing permits out of racial -animus. See Complaint ¶¶,43-44, at 17. They allege 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 contend that, contrary to the Policy, the Forest Service “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 Forest Service’s conduct has “resulted in an increase in economic and cultural instability for the communities in the Unit.” Complaint ¶ 56, at 22.
The Plaintiffs allege 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 the swelling of the wild horse and elk populations 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 the 2002 Decision Notice outlines, the Defendants have used the damaged forage as an “excuse to harass” the Plaintiffs about foraging conditions and 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. Cha-con’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 Per-mittees had criticized her to the state government. Complaint ¶ 76, at- 31. The Plaintiffs assert that Trujillo acted as she did to chill the Plaintiffs’ speech. See Complaint ¶ 76, at 31.
The Complaint’s first count is a retaliation claim under the First Amendment to the Constitution of the United States against Trujillo, which the Court has dismissed for failure to exhaust administrative remedies. As their second cause of action, the Plaintiffs allege that the Defendants failed to properly analyze the 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, violated the APA. Complaint ¶¶ 116-119, at 48-49 (citing Natural Res. 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 analyze properly the 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 the 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(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 the NEPA and the. APA. See Complaint ¶¶ 128-131, at 50 (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 (“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(i); 5 U.S.C. §§ 702, 706(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 that they 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 Defendants violated NEPA by failing to adequately aná-lyze, or to “take a hard look” at, the social, economic, and environmental impacts that would result from the 2010 EA and the 2010 Decision Notice for the Allotments, Complaint ¶ 3, at 53; (ii) 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; (iii) 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; (iv) declare that Trujillo violated NEPA by failing to consider the alternatives that the EA analyzed before issuing the 2010 Decision Notice, see Complaint ¶ 6, at 54; (v) declare that the Defendants violated the 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; (vi) declare that the Defendants violated the 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; (vii) declare that the Defendants violated the Plaintiffs’ rights under the SYF-MA by failing to manage the forest for the benefit of the communities within the Unit, see Complaint ¶9, at 54; (viii) 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; (ix) declare that the Defendants’ actions violated the APA by not observing the procedures the law requires, and were arbitrary and capricious “and/or unconstitutional,” Complaint ¶ 11, at 55; (x) issue a judgment and injunction that voids the 2010 Decision Notice, and orders the Defendants to adhere to the second alternative in 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; (xi) issue an injunction that compels the Forest Service to comply with NEPA, the NFMA, the SYFMA, and the APA, so as to prevent irreparable harm and satisfy the public interest, see Complaint ¶ 13, at 55; (xii) issue an injunction, which requires the Defendants to adhere to the second alternative in the 2010 EA, see Complaint ¶ 14, at 55;. (xiii) 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; (xiv) award punitive damages against Trujillo, see Complaint ¶ 16, at 56; (xv) award the Plaintiffs their “costs, expenses, expert witness fees, and reasonable attorney fees under applicable law,” Complaint ¶ 17, at 56; and (xvi) grant the Plaintiffs “such other and further relief as the Court deems proper,” Complaint ¶ 18, at 56.
2. The Motion to Dismiss. ‘
The Defendants filed two previous Motions to Dismiss. They, first moved to dismiss the First Amendment retaliation claim on May 23, 2012, on the.grounds that it failed to state a plausible claim. See Defendants’ Memorandum in Support of Motion to Dismiss, filed May 23, 2012 (Doc. 17)(“First MTD”). The Defendants moved the Court to dismiss: (i) the claim under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (“Bivens ”), 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971); (ii) the First Amendment, retaliation claim; and (iii) the claims for declaratory relief. See First MTD at 1. The Court granted the First MTD as to (i) and (iii), and denied it as to (ii). See Memorandum Opinion and Order, 921 F.Supp.2d 1137, 1141-43, 1205 (D.N.M.2013). The Defendants filed a second Motion to Dismiss arguing that the Plaintiffs failed- to exhaust their administrative remedies. See Federal Defendants’ Motion to Dismiss Count -1 for Failure to Exhaust Administrative Remedies, filed February 18, 2013 (Doc. 55)(“Second MTD”).
On November 18, 2014, the Court granted the Defendant’s Second MTD and dismissed the Plaintiffs’ First Amendment retaliation claim. See Second MTD at 105 (Doc. 135). The Court dismissed this claim because the Plaintiffs did not satisfy the issue-exhaustion requirements in the proceedings before the Forest Service, because they did not specifically raise their First Amendment retaliation issue in a way that the Forest Service could respond to it. See Second MTÍ) at 74. The Court dismissed the claim without prejudice to allow the Plaintiffs to exhaust their claim and renew it later. See Second MTD at 104.
The Defendants filed their third motion — the MTD — to dismiss on February 10, 2015. They now seek to dismiss all of the Plaintiffs’ remaining claims. First, the Defendants assert that some of the Plaintiffs do not hold permits subject to the eighteen-percent reduction in permitted livestock numbers, or did not hold permits at the time of the Forest' Service decision. See MTD at 8. Because these Plaintiffs were not, or are not how, subject to the eighteen-percent reduction in permitted numbers, the Defendants assert that they cannot establish standing. See MTD at 9.
Second, the Defendants argue that, because “the Court dismissed Plaintiffs’ First Amendment claim for Plaintiffs’ failure to allege retaliation in any- administrative appeal, it necessarily follows that-the Court must dismiss Plaintiffs’ remaining claims to the extent that they rely on those same unexhausted allegations.” MTD at 3. The Defendants assert that the Plaintiffs failed to raise their remaining claims in any administrative appeal. See MTD at 3. For example, the Plaintiffs allege violations of the NFMA, the SYFMA, and the Policy. Yet the Defendants claim that the “Plaintiffs’ Administrative Appeal does not so much as mention SYFMA or the Policy; and its single reference to NFMA is with regard to coordinating with State and local governments, which has nothing to do with the NFMA claims raised in the Complaint.” MTD at 3-4. Third, the Defendants assert that the Plaintiffs did riot property exhaust their NEPA claims on administrative appeal. The Defendants argue that “there is a lack of congruence between the allegations in the Complaint and the arguments raised in Plaintiffs’ Administrative Appeal.” MTD at 4.
Fourth, the Defendants assert that the Plaintiffs’ remaining claims fail on their face, because they do not present claims subject to judicial review under the APA. See MTD at 4. The Defendants state that the Plaintiffs fail to allege that the reduction in permitted livestock numbers causes environmental impacts that injure the Plaintiffs’ interests. Rather, the Defendants state that the Plaintiffs allege only “economic, social, and cultural injuries.” MTD at 4. These injuries, the Defendants argue, do not fall within NEPA’s “zone of interests” the APA requires for judicial review. MTD at 4. Similarly, the Defendants assert that the Plaintiffs’ NFMA “wild horse” claim, faulting the Defendants for failing to meet the Carson National Forest Plan’s population objectives, does not present a cognizable claim under the APA, because such planning goals are not judicially enforceable. MTD at 4 (citing Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004) (“SUWA ”)). Next, the Defendants contend that the Plaintiffs’ SYFMA claim's fail because SYFMA contains “no law to apply” to gauge the Forest Service’s'compliance, as the APA requires. MTD at 5: Finally, the Defendants assert that the Plaintiffs’ claim that the Forest Service violated its Policy is not a cognizable cause' of action' under the APA, because “such internal agency policies are nonbinding, and therefore not enforceable in Court.” MTD at 5 (citing Schweiker v. Hansen, 450 U.S. 785, 789-90, 101 S.Ct. 1468, 67 L.Ed.2d 685 (1981)).
3. The Plaintiffs Respond to the MTD.
The Plaintiffs responded to the MTD on April 17, 2015. See Plaintiffs’ Response to Federal Defendants’ Motion to Dismiss Plaintiffs’ Remaining Claims, filed April 17, 2015 (Doc. 155)(“Response”). They first argue that the non-permittee Plaintiffs, iricluding Rio Arriba County, meet the constitutional standing requirements of injury-in-fact, causation, and redressa-bility. See Response at 8. The Plaintiffs contend that the non-permittee Plaintiffs suffer a concrete injury to their cultural, recreational, aesthetic, and spiritual interests. See_ Response at 8-9. They argue that the Defendants’ failure to follow procedural requirements caused the Defendants to improperly analyze the environmental consequences of their decision. The Plaintiffs contend' that the Defendants’ failure to analyze the environmental consequences thereby damages range resources, which injures the Plaintiffs’ interests. See Response at 8-15. Furthermore, they argue that the Associations have associational standing, and that Rio Arriba County has - standing in its own right. See Respónse at 13-14.
Second, the Plaintiffs argue that they raised “the substance of their claims during the administrative review and appeals process with sufficient clarity to put the Defendants on notice of and provide the Defendants with an opportunity to consider the issues raised.” Response at 18. They assert that they discussed the applicable facts and law in their appeals in a way that, put the Defendants on notice of the issues they now raise. See Response at 19. Further, the Plaintiffs contend that their remaining. claims “are not based on the allegations of bad faith retaliatory animus that underlie the First Amendment claim.” Response at 26. Instead, they argue that their remaining claims are based on “specific enumerated failures to fulfill legally binding obligations.” Response at 26.
Third, the Plaintiffs assert that their interests fall within .the “zone of interests” NEPA seeks to protect. They contend that they suffer a “mix of environmental, cultural and socioeconomic” injuries from “the Defendants’ mismanagement of lands and resources that play a central role in the Plaintiffs’ culture and way of life.” Response at 29.' They argue that NEPA seeks to protect not only environmental interests, but also aesthetic and environmental well-being.' See Response at 30.
Fourth, the Plaintiffs argue that the Defendants violated the NFMA by taking action inconsistent with the Carson National Forest Management Plan, without providing a reasoned justification for deviating from those standards. See Response at 32. They argue that the Carson Forest Land and Resource Management Plan (“CFLRMP”) and the Wild Horse Management Plan incorporates enforceable governing standards, and not mere policy statements. Rather, the Plaintiffs argue they are.“concrete, mandatory directive[s] imposed by the Forest Service on its employees in. managing these lands.” Response at 33.
Fifth, the' Plaintiffs assert that the Defendants violated NEPA by taking action inconsistent with the Forest Plan' standards without providing a reasoned justification, as the Forest Plan requires. See Response at 34. Doing so, the Plaintiffs assert, was arbitrary and capricious and violated the NFMA and the APA. See Response at 34. Sixth, the Plaintiffs contend that the SYFMA provides “law to apply” and a reasonable standard against which the Court can judge the Defendants’ challenged action. Response at 35. The Plaintiffs argue that “a proper construction of the SYFMA’s language in conjunction with the, necessary context of other applicable laws ... provide a set of constraints on the Defendants’ exercise of discretion.” Response at 40. Finally,, the. Plaintiffs argue that Count Nine states a cognizable claim for relief based on the Defendants’ violations of the Policy’s directives. See Response at 41.
4. The Hearing.
The Court held a hearing on the MTD on May 21, 2015. See Transcript of Hearing (taken May 21, 2015)(“Tr.”). The parties discussed the case’s procedural posture, what evidence the Court could consider, and whether the Court could decide the issues on a motion to dismiss. The Court asked the Defendants why they raised the issues in a motion to dismiss, rather than an appellate-style brief on the merits. See Tr. 37:3-8 (Court). The Defendants answered that primarily, they were trying to save time-and resources by raising threshold issues at this stage rather than on the merits. See Tr. 37:10-15. The Court questioned the Plaintiffs whether they were comfortable litigating the issues on a motion. See Tr. 41:8-12 (Court). The Plaintiffs responded that “the Court is obligated to rule on it.” Tr. 43:13-14 (Herskovitz).
The Plaintiffs conceded that it was appropriate for the Court to rule on the issues in the MTD because the Court could examine the entire administrative record, making the case more analogous to an appellate-style brief on the merits than a motion to dismiss. See Tr. 44:2-12 (Attorney 2). In reviewing a rule 12(b)(6) motion in an APA case, the court may examine the materials in the Administrative Record to determine the viability of the Plaintiffs’ claims. That § 6912(e) is not jurisdictional has a minimal impact on the MTD’s procedural posture. Generally, the Court’s latitude to pierce the pleadings and fact-find at the motion-to-dismiss stage is much greater regarding jurisdictional issues — analyzed under rule 12(b)(1) — than elements of the substantive claims — analyzed under rule 12(b)(6). Affirmative defenses, in particular, are difficult to establish at the motion-to-dismiss stage. See Anderson Living Trust v. WPX Energy Prod., LLC, 27 F.Supp.3d 1188, 1198-99, 1233-41 (D.N.M.2014) (Browning, J.).
This case, however, is an appeal, governed by the APA’s procedural provisions. As a group, the devices appellate courts normally use are generally more consistent with the APA’s judicial review scheme than the devices that trial courts normally use, which presume nothing about the merits of the case, and divide burdens of proof and production almost equally between the plaintiff and the defendant. The Court can see no reason, however, why the parties cannot use the familiar procedural devices of the Federal Rules of Civil Procedure if they wish, at least to the extent that they can be modified to comport with the APA. To comply with these principles, the Court will use the entire administrative record in determining whether the Defendants establish the failure-to-exhaust defense. To do otherwise — to cabin the court’s examination to the usual rules for looking outside the pleadings on a rule 12(b)(6) motion — would be to let the Federal Rules of Civil Procedure’s procedural forms trump the APA’s. Consequently, the parties agreed that the Court should rule on- the issues presented in the MTD at this stage. See Tr. 44:19 (Attorney 2).-
LAW REGARDING RULE 12(b)(1)
“Federal courts are courts of limited jurisdiction; they are empowered to hear only those cases authorized and defined ,in the Constitution which have been entrusted to them under a jurisdictional, grant by Congress.” Henry v. Office of Thrift Supervision, 43 F.3d 507, 511 (10th Cir.1994) (Barrett, J.) (citations omitted). A plaintiff generally bears the burden of demonstrating the court’s jurisdiction to hear his or her claims. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 104, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (“[T]he party invoking federal jurisdiction bears the burden of establishing its existence.”). Rule 12(b)(1) allows a party to raise the defense of the court’s “lack of jurisdiction over the subject matter” by motion. Fed.R.Civ.P. 12(b)(1). The United States Court of Appeals for the Tenth Circuit has held that motions to dismiss for lack of subject-matter jurisdiction “generally take one of two forms: (1) a facial attack on the sufficiency of the complaint’s allegations as to subject-matter jurisdiction; or (2) a challenge to the actual facts upon which subject matter jurisdiction is based.” Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir.2002) (VanBebber, J.).
On a facial attack, a plaintiff is afforded safeguards similar to those provided in opposing a rule 12(b)(6) motion: the court must consider the complaint’s allegations to be true. See Ruiz v. McDonnell, 299 F.3d at 1180; Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir.1981). But when the attack is aimed at the jurisdictional facts themselves, a district court may not presume the truthfulness of those allegations. A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). In such instances, a court’s reference to evidence outside the pleadings does not convert the motion to a Rule 56 [summary-judgment] motion.
Hill v. Vanderbilt Capital Advisors, LLC, 834 F.Supp.2d 1228, 1241 (D.N.M.2011) (Browning, J.)(quoting Alto Eldorado Partners v. City of Santa Fe, 2009 WL 1312856, at *8-9 (D.N.M. Mar. 11, 2009) (Browning, J.)). The United States- Court of Appeals for-the Fifth Circuit has stated:
[T]he trial court may proceed as it never could under 12(b)(6) or Fed.R.Civ.P. 56. Because at issue in a factual 12(b)(1) motion is the trial court’s jurisdiction— its very power to hear the case — there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power tq hear the case. In short, no presumptive truthfulness attaches to plaintiffs allegations, and the existence of disputed material facts will not preclude' the trial court from evaluating for itself the merits of jurisdictional claims.
Williamson v. Tucker, 645 F.2d 404, 412-13 (5th Cir.1981) (Randall, J.)(quoting Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir.1977)).
When making a rule 12(b)(1) motion, a party may go beyond the allegations in the complaint to challenge the facts -upon which jurisdiction depends, and may do so by relying on affidavits or other evidence properly before the court. See New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1499 (10th Cir.1995) (Brorby, J.); Holt v. United States, 46 F.3d 1000, 1003 (10th Cir.1995) (Baldock, J.). In those instances, a court’s reference to evidence outside the pleadings does not necessarily convert the motion to a rule 56 motion for summary judgment. See Holt v. United States, 46 F.3d at 1003 (citing Wheeler v. Hurdman, 825 F.2d 257, 259 n. 5 (10th Cir.1987) (Anderson, J.)). Where, however, the court determines that jurisdictional issues raised in a rule 12(b)(1) motion are intertwined with the case’s merits, the court should resolve the motion either under rule 12(b)(6) or rule 56. See Franklin Sav. Corp. v. United States, 180 F.3d 1124, 1129 (10th Cir.1999) (Murphy, J.); Tippett v. United States, 108 F.3d 1194, 1196 (10th Cir.1997) (Briscoe, J.). “When deciding‘whether jurisdiction is intertwined with the merits of a particular dispute, ‘the underlying issue is whether resolution of the jurisdictiorial question requires resolution of an aspect of the substantive claim.’” Davis ex rel. Davis v. United States, 343 F.3d 1282, 1296 (10th Cir.2003) (Hartz, J.)(quoting Sizova v. Nat’l Inst. of Standards & Tech., 282 F.3d 1320, 1324 (10th Cir.2002) (Seymour, J.)).
LAW REGARDING RULE 12(b)(6)
Rule 12(b)(6) authorizes a court to dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir.1994) (Brorby, J.). The sufficiency of a complaint is a question of law, and when considering a rule 12(b)(6) motion, a court must accept as true all well-pled factual allegations in the complaint, view those allegations in the light most favorable to the non-moving party, and draw all reasonable inferences in the plaintiff’s favor. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007) (“[Ojnly if a reasonable person could not draw ... an inference [of plausibility] from the alleged facts would the defendant prevail on a motion to dismiss.”); Smith v. United States, 561 F.3d 1090, 1098 (10th Cir.2009) (Briscoe, J.)(“[F]or purposes of resolving a Rule 12(b)(6) motion, we accept as true all well-pled factual allegations in a complaint and view these allegations in the light most favorable to the plaintiff.”)(citing Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir.2006) (McKay, J.)).
A complaint need not set forth detailed factual allegations, yet a “pleading that offers labels and conclusions or a formulaic recitation of the .elements of a cause of action” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. “Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (evert if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted).
To survive a motion to dismiss, a plaintiffs complaint must contain sufficient- facts that, if assumed to be true, state a claim to relief that is plausible on its face’. See Bell Atl. Corp. v. Twombly, 550 U.S. at 570, 127 S.Ct. 1955; Mink v. Knox, 613 F.3d 995, 1000 (10th Cir.2010). “A claim has facial plausibility when the pleaded factual content allows the court to draw- the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 556, 127 S.Ct. 1955). “Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complainant must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir.2007) (Kelly, J.)(emphasis omitted). The Tenth Circuit has stated:
“[PJlausibility” in this context must refer to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs “have not nudged their claims across the line from conceivable to plausible.” The allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief.
Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.2008) (McConnell, J.) (citations omitted)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 570, 127 S.Ct. 1955).
Although affirmative defenses must generally be pled in the defendant’s answer, not argued on a motion to dismiss, see Fed.R.Civ.P. 8(c), there are exceptions. First, a defendant can argue an affirmative defense on a motion to dismiss where the defendant asserts an immunity defense— the courts handle these cases differently than other motions to dismiss. See Glover v. Gartman, 899 F.Supp.2d 1115, 1137-39, 1141 (D.N.M.2012) (Browning, J.)(citing Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)); Robbins v. Oklahoma, 519 F.3d 1242. Sec