Federal Evidence Review

In environmental action brought by environmental groups, Tenth Circuit takes judicial notice of federal agency web sites concerning the release of birds, which was considered on the issue of whether the action was moot, in New Mexico ex rel. Richardson v. Bureau of Land Management, 563 F.3d 683 (10th Cir. April 28, 2009) (No. 06-2352, 06-2353, 06-2354)

A recent Tenth Circuit case demonstrates the impact on a claim of taking judicial notice for the first time on appeal. Some of the information was taken from federal agency web sites.

In the case, the Bureau of Land Management decided to permit development of the majority of the Otero Mesa in New Mexico, which includes “the largest publicly-owned expanse of undisturbed Chihuahuan Desert grassland in the United States.” An environmental action was filed by the New Mexico Wilderness challenging the procedures used in the agency decision and the agency’s decision not to consult with the Fish and Wildlife Service as required under the Endangered Species Act concerning the impact of the development on the Northern Aplomado Falcon. The district court denied most of the challenges but found the agency failed to comply with some environmental requirements.

On appeal, the Tenth Circuit considered whether the Endangered Species Act claim was moot since the Fish and Wildlife Service (FWS) had decided “to release Falcons into the plan area that led to the Falcon’s change in regulatory status. Based on that decision, FWS granted $295,793 to nonprofit organization the Peregrine Fund to begin releasing birds on BLM lands in New Mexico in 2007.” In reaching this result, the circuit took judicial notice of several matters, including information on the internet:

• Judicial notice of federal agency web sites of the Bureau of Land Management and the Fish and Wildlife Service concerning the release of birds, which was considered on the issue of whether the action was moot; Bureau of Land Mgmt., New Mexico Resource Advisory Council, Minutes, http://www.blm.gov/nm/st/en/info/resource_advisory.html (last visited March 18, 2009) (follow links for March 2008 and December 2006)
• Judicial notice of the minutes of the New Mexico State Resource Advisory Council concerning the release of birds
• Judicial notice of grant agreement between the Fish and Wildlife Service and nonprofit organization concerning the release of birds on Bureau of Land Management property

New Mexico ex rel. Richardson, 563 F.3d at 702 n.23. With judicial notice of these matters, the circuit concluded the claim was moot.

The case demonstrates application of the principle that judicial notice, while usually considered by the district court, may be taken for the first time on appeal. FRE 201(f) provides: “Judicial notice may be taken at any stage of the proceeding.”

The case also highlights the taking of judicial notice of information on the internet. In this instance, the information concerning agency information about the release of the Falcon. There are limits to taking judicial notice in general, and the internet in particular. For other posts noting the Limits To Relying On Internet Materials and Information In Court (Part I), (Part II). For more on judicial notice, see FRE 201 Blogs.