United States District Court, D. Oregon
Scott Jerger, Field Jerger LLP, Michael Ray Harris, Friends
of Animals, Of Attorneys for Plaintiff.
C. Cruden, Assistant Attorney General, and Lucinda J. Bach,
Trial Attorney, U.S. Department of Justice, Of Attorneys for
OPINION AND ORDER
Michael H. Simon United States District Judge.
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.
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)).
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)).
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.
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.
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.
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
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 ...