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Friends of Animals v. United States Bureau of Land Management

United States District Court, D. Oregon

March 16, 2017

FRIENDS OF ANIMALS, Plaintiff,
v.
UNITED STATES BUREAU OF LAND MANAGEMENT, Defendant.

          R. Scott Jerger, Field Jerger LLP, Michael Ray Harris, Friends of Animals, Of Attorneys for Plaintiff.

          John C. Cruden, Assistant Attorney General, and Lucinda J. Bach, Trial Attorney, U.S. Department of Justice, Of Attorneys for Defendant.

          OPINION AND ORDER

          Michael H. Simon United States District Judge.

         Plaintiff, Friends of Animals (“FOA”), challenges the August 28, 2016 emergency decision of the U.S. Bureau of Land Management (“BLM”) to remove wild horses from the Three Fingers Herd Management Area (“HMA”) and its subsequent round-up and removal of 155 horses. FOA alleges that BLM's actions violate both the 1971 Wild Free-Roaming Horses and Burros Act (“WFRHBA”), 16 U.S.C. §§ 1331, et seq., and the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321, et seq. After BLM filed a motion to dismiss based in part on mootness (ECF 24), FOA filed a motion for leave to take limited discovery. FOA seeks leave to serve interrogatories, requests for production, and requests for admissions limited to the issue of whether BLM is able to return some or all of the removed horses to the HMA. For the reasons explained below, the Court grants FOA leave to take limited discovery as requested.

         STANDARDS

         A federal court does not have jurisdiction “to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.” Church of Scientology of CA v. U.S., 506 U.S. 9, 12 (1992) (quoting Mills v. Green, 159 U.S. 651, 653 (1895)). “A claim is moot if it has lost its character as a present, live controversy.” Rosemere Neighborhood Ass'n v. U.S. Envtl. Prot. Agency, 581 F.3d 1169, 1172-73 (9th Cir. 2009) (quoting Am. Rivers v. Nat'l Marine Fisheries Serv., 126 F.3d 1118, 1123 (9th Cir. 1997)). To determine mootness, “the question is not whether the precise relief sought at the time the application for an injunction was filed is still available. The question is whether there can be any effective relief.” NW Envtl. Def. Ctr. v. Gordon, 849 F.2d 1241, 1244-45 (9th Cir. 1988) (quoting Garcia v. Lawn, 805 F.2d 1400, 1403 (9th Cir. 1986)) (emphasis in original). If a course of action is mostly completed but modifications can be made that could alleviate the harm suffered by plaintiff's injury, the issue is not moot. Tyler v. Cuomo, 236 F.3d 1124, 1137 (9th Cir. 2000). A case becomes moot “only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.” Chafin v. Chafin, 133 S.Ct. 1017, 1023 (2013) (emphasis added) (citation omitted). The party alleging mootness bears a “heavy” burden to establish that this Court can provide no effective relief. Karuk Tribe of Cal. v. U.S. Forest Service, 681 F.3d 1006, 1017 (9th Cir. 2012) (quoting Forest Guardians v. Johanns, 450 F.3d 455, 461 (9th Cir. 2006)).

         When a party requests discovery to respond to a motion to dismiss on jurisdictional grounds, a court ordinarily should grant discovery “where pertinent facts bearing on the question of jurisdiction are controverted or where a more satisfactory showing of the facts is necessary.” Laub v. U.S. Dep't of the Interior, 342 F.3d 1080, 1093 (9th Cir. 2003) (quoting Butcher's Union Local No. 498 v. SDC Inv., Inc., 788 F.2d 535, 540 (9th Cir. 1986)) (discussing discovery in the context of standing). On the other hand, “a refusal to grant discovery to establish jurisdiction is not an abuse of discretion when ‘it is clear that further discovery would not demonstrate facts sufficient to constitute a basis for jurisdiction.'” Id. (quoting Wells Fargo & Co. v. Wells Fargo Express Co., 556 F.2d 406, 430 n.24 (9th Cir. 1977)).

         BACKGROUND

         On August 17, 2016, FOA filed it complaint in this case, challenging BLM's June 2016 Decision Record supporting a round-up of approximately 100 wild horses from the Three Fingers HMA. ECF 1. BLM scheduled the round-up to begin on August 23, 2016. First Am. Compl. (ECF 22) ¶ 44. On or about August 21, 2016, the Cherry Road wildfire erupted along the Oregon-Idaho border, near the town of Homedale, Idaho. Id. ¶ 55. According to BLM, the fire “burned 90% of the Wildhorse Basin Pasture in the Three Fingers HMA, which represents approximately 50% of the range used by wild horses within the HMA.” ECF 24 at 9. Because the fire burned the area where BLM planned to conduct the round-up, BLM withdrew its June Decision Record and abandoned its plans for the August 23 round-up. Id.

         During the Cherry Road wildfire, BLM conducted “daily monitoring” of the fire, which BLM claims uncovered the need for an emergency gather of approximately 150 horses from the Three Fingers HMA. Id. BLM asserts that its monitoring revealed the following four observations that led to the emergency gather: (1) only a few islands of forage with nearby sources of water remained; (2) horses searched for unburned grass, ate burnt grass, and heavily grazed on remaining vegetation “until nothing edible remained”; (3) horses returned to their preferred grazing areas even though those areas were entirely burnt; and (4) horses travelled long distances in search of food. Id. On August 28, 2016, BLM posted a Full Force and Effect Decision on its website, authorizing an emergency gather. The gather began the next day, August 29, and was completed by September 1, 2016. A total of 155 horses were removed as a part of this emergency gather and were entered into BLM's Adopt-A-Horse program.

         FOA filed its First Amended Complaint on September 1, 2016, challenging BLM's emergency gather. ECF 22. FOA alleges that BLM, through its emergency Full Force and Effect Decision and associated gather, violated the WFRHBA and NEPA. BLM responded by filing a motion to dismiss, arguing, in part, that FOA's First Amended Complaint is moot because the challenged gather had already taken place and cannot be undone. On November 15, 2016, FOA filed its pending motion for limited discovery before being required to respond to BLM's motion to dismiss.

         DISCUSSION

         BLM argues that FOA's claims are moot because all actions approved by the emergency Full Force and Effect Decision are completed and cannot be reversed. FOA responds that limited discovery is needed to dispute BLM's assertion that the August 28, 2016, emergency gather cannot be undone or redressed. FOA argues that it needs to know if any legitimate obstacles preclude BLM from using management methods other than permanent removal of the horses from the HMA to meet its statutory obligations. Specifically, FOA seeks to discover whether BLM could, if ordered by the Court, return horses back to the HMA pending NEPA compliance. FOA argues that the facts needed to answer this question lie peculiarly within BLM.

         BLM notes that the August 28, 2016, emergency Full Force and Effect Decision merely authorized a one-time removal in response to the Cherry Road fire and that the removal has been completed. BLM argues that the Full Force and Effect Decision makes no mention of potentially returning any of the removed horses to the HMA; therefore, no amount of discovery regarding alternatives or the possibility of returning ...


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