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Friends of Animals v. Bureau of Land Management

United States District Court, D. Oregon

April 2, 2018


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

          Lucinda J. Bach, United States Department of Justice. Of Attorney for Defendants.


          Michael H. Simon United States District Judge.

         Plaintiff Friends of Animals (“FOA”) sues the United States Bureau of Land Management (“BLM”) alleging that BLM's actions in gathering and removing horses from the Three Fingers Herd Management Area (“HMA”) in response to a fire in August 2016 violated the National Environmental Policy Act (“NEPA”) and the Wild Free-Roaming Horses and Burros Act (“WHBA”). Before the Court are the parties' cross-motions for summary judgment (ECF 50, 55) and BLM's motion to strike several exhibits submitted by FOA and to defer briefing on the issue of remedy in the event this Court finds in favor of FOA. For the reasons discussed, each party's motion for summary judgment is granted in part and denied in part, and BLM's motion to strike is granted.


         A. Standard of Review under the APA

         The Administrative Procedure Act (“APA”) provides for judicial review of final agency action. 5 U.S.C. §§ 701-706. Under the APA, a court may set aside agency actions only if such actions are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Further, an “agency must examine the relevant data and articulate a satisfactory explanation for its action.” Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). An agency's action is “arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Id. Although a court's “inquiry must be thorough, the standard of review is highly deferential; the agency's decision is ‘entitled to a presumption of regularity, ' and [a court] may not substitute [its] judgment for that of the agency.” San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 601 (9th Cir. 2014) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-16 (1971)).

         B. Summary Judgment

         A party is entitled to summary judgment if the “movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party has the burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view the evidence in the light most favorable to the non-movant and draw all reasonable inferences in the non-movant's favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th Cir. 2001). Although “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment, ” the “mere existence of a scintilla of evidence in support of the plaintiff's position [is] insufficient . . . .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 255 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted).

         When parties file cross-motions for summary judgment, the court “evaluate[s] each motion separately, giving the non-moving party in each instance the benefit of all reasonable inferences.” A.C.L.U. of Nev. v. City of Las Vegas, 466 F.3d 784, 790-91 (9th Cir. 2006) (quotation marks and citation omitted); see also Pintos v. Pac. Creditors Ass'n, 605 F.3d 665, 674 (9th Cir. 2010) (“Cross-motions for summary judgment are evaluated separately under [the] same standard.”). In evaluating the motions, “the court must consider each party's evidence, regardless under which motion the evidence is offered.” Las Vegas Sands, LLC v. Nehme, 632 F.3d 526, 532 (9th Cir. 2011). “Where the non-moving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party's case.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010). Thereafter, the non-moving party bears the burden of designating “specific facts demonstrating the existence of genuine issues for trial.” Id. “This burden is not a light one.” Id. The Supreme Court has directed that in such a situation, the non-moving party must do more than raise a “metaphysical doubt” as to the material facts at issue. Matsushita, 475 U.S. at 586.


         A. National Environmental Policy Act (“NEPA”)

         NEPA requires that a federal agency “consider every significant aspect of the environmental impact of a proposed action and inform the public that it has indeed considered environmental concerns in its decisionmaking process.” Earth Island Inst. v. U.S. Forest Serv., 351 F.3d 1291, 1300 (9th Cir. 2003) (quoting Kern v. U.S. Bureau of Land Mgmt., 284 F.3d 1062, 1066 (9th Cir. 2002)) (alterations omitted). NEPA's procedural requirements “force agencies to take a ‘hard look' at the environmental consequences of their actions. Id. (quoting Kern, 284 F.3d at 1066). NEPA also established the Council on Environmental Quality (“CEQ”). “Regulations governing how NEPA is implemented have been promulgated by the Council of Environmental Quality, at 40 C.F.R. §§ 1505.1-1508.28.” N. Plains Res. Council, Inc. v. Surface Transp. Bd., 668 F.3d 1067, 1072 (9th Cir. 2011).

         Among NEPA's procedural requirements is a requirement that agencies considering “major Federal actions significantly affecting the quality of the human environment” prepare an Environmental Impact Statement (“EIS”). 42 U.S.C. § 4332(C); W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 486-87 (9th Cir. 2011). The purpose of an EIS is primarily “to serve as an action-forcing device to insure that the policies and goals defined in the Act are infused into the ongoing programs and actions of the Federal Government.” 40 C.F.R. § 1502.1. The EIS “shall provide full and fair discussion of significant environmental impacts and shall inform decisionmakers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment.” 40 C.F.R. § 1502.1.

         To determine whether an EIS is necessary, an agency may first prepare an Environmental Assessment (“EA”).[1] An EA serves to: (1) “Briefly provide sufficient evidence and analysis for determining whether to prepare an [EIS] or a finding of no significant impact”; (2) “[a]id an agency's compliance with [NEPA] when no [EIS] is necessary”; and (3) “[f]acilitate preparation of a statement when one is necessary.” 40 C.F.R. § 1508.9. An EA “[s]hall include brief discussions of the need for the proposal, of alternatives as required by section 102(2)(E), of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted.” 40 C.F.R. § 1508.9. If, based on an EA, an agency determines that the contemplated federal action will not significantly affect the environment, “the federal agency may issue a finding of no significant impact (‘FONSI') in lieu of preparing an EIS.” Native Ecosystems Council v. Tidwell, 599 F.3d 926, 937 (9th Cir. 2010) (quoting Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1239 (9th Cir. 2005)). If the agency does not make a FONSI, an EIS is required. Where an agency does not “prepare an EIS, it must supply a convincing statement of reasons to explain why a project's impacts are insignificant.” Tidwell, 599 F.3d at 937. This statement is “crucial to determining whether the agency took a hard look at the potential environmental impact of a project.” Id.

         Whether a federal agency prepares either an EIS or an EA, NEPA mandates that federal agencies “study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.” 42 U.S.C. § 4332(E); Native Ecosystems Council, 428 F.3d at 1245 (“The alternatives provision of NEPA applies whether an agency is preparing an EIS or an EA.”).

         B. Wild Free-Roaming and Burros Act (“WHBA”)

         The Wild Free-Roaming Horses and Burros Act (“WHBA”), 16 U.S.C. §§ 1331 et seq., governs the management and treatment of wild horses and burros across the nation. Concerned that wild horses and burros were “fast disappearing from the American scene, ” Congress enacted WHBA to protect the “wild free-roaming horses and burros [that] are living symbols of the historic and pioneer spirit of the West.” 16 U.S.C. § 1331. WHBA requires that wild horses and burros “be considered . . . an integral part of the natural system of the public lands” in places where they were found at the time of WHBA's passage. Id. Congress enacted WHBA to provide that these animals “be protected from capture, branding, harassment, [and] death.” Id.

         WHBA directs that the Secretary of the Interior-through BLM-“manage wild free-roaming horses and burros” “as components of the public lands” and “in a manner that is designed to achieve and maintain a thriving natural ecological balance [(“TNEB”)] on the public lands.” 16 U.S.C. § 1333(a); 16 U.S.C. § 1332(a) (defining “Secretary”). To accomplish this, BLM establishes Herd Management Areas (“HMAs”) “for the long-term maintenance of [wild horse and burro] herds.” United States Department of Interior, Bureau of Land Management, Wild Horses and Burros Management Handbook (“WHBA Handbook”) at § 1. BLM also establishes an Appropriate Management Level (“AML”) for each HMA, which sets the “optimal population range[]” of horses that can live on the HMA while maintaining a TNEB. Colo. Wild Horse v. Jewell, 130 F.Supp.3d 205, 209 (D.D.C. 2015); 16 U.S.C. § 1333(b)(1). BLM may consider various site-specific factors such as the availability of forage, water, cover, and space- the necessities of a wild horse habitat-to calculate the AML. WHBA Handbook at §§ 3.1-3.3,

         WHBA directs BLM to maintain an inventory of wild free-roaming horses and burros on public lands, which is used to determine whether AML levels are appropriate, whether an “overpopulation” exists in any area, and whether any action should be taken to remove excess animals or to maintain AML levels. 16 U.S.C. § 1333(b)(1). When the Secretary determines “that an overpopulation exists on a given area of the public lands and that action is necessary to remove excess animals, he shall immediately remove excess animals from the range so as to achieve appropriate management levels.” 16 U.S.C. § 1333(b)(2). BLM is afforded wide discretion in managing public lands and effectuating management action. 16 U.S.C. § 1333(b)(1); United States v. Mead Corp., 533 U.S. 218, 220 (2001) (noting that agencies benefit from “specialized experience and broader investigations and information”) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 139 (2001)); Kleppe v. Sierra Club, 427 U.S. 390, 412 (1976) (an environmental impact statement “requires a high level of technical expertise and is properly left to the informed discretion of the responsible federal agencies”); In Def. of Animals v. U.S. Dep't of Interior, 751 F.3d 1054, 1065 n. 16 (9th Cir. 2014) (noting BLM's wide discretion in protecting, managing, and controlling horses and burros on public lands); Am. Horse Prot. Ass'n v. Watt, 694 F.2d 1310, 1318 (D.C. Cir. 1982) (1978 amendments to WHBA indicate congressional intent to insulate BLM management decisions from intensive judicial review and institute a deferential standard).

         Courts defer to BLM's expertise in making excess and action determinations. In Def. of Animals, 751 F.3d at 1066 (finding that agency expertise deserves deference as to when an overpopulation exists and action is warranted); see also Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1356 (9th Cir. 1994) (the standard of review of land management actions is “decidedly deferential to the agency's expertise”).


         This dispute concerns wild horses in the Three Fingers HMA, which spans 62, 508 acres in Malheur County, Oregon. AR 3F-0599. The Three Fingers HMA is divided into two pastures-the Wildhorse Basin Pasture in the north and the Riverside Pasture, which includes the Shadscale Flat area, in the south. AR 3F-0604. The AML for wild horses in the Three Fingers HMA, established in 1975, is between 75 and 150. AR 3F-0599.

         A. The 2011 Environmental Assessment

         In May 2011, BLM, operating through the Malheur Field Office, determined that excess wild horses were present within and outside the boundaries of the Three Fingers HMA, and proposed to gather and remove excess horses to “ensure that wild horses in the HMA are managed in conjunction with other resource values and uses to provide for a thriving natural ecological balance.” AR 3F-0592. BLM prepared an Environmental Assessment (“2011 EA”) to analyze the environmental impacts associated with the proposed gather and removal. AR 3F-0599-0645. BLM reported in the 2011 EA that approximately 255 wild horses resided within the Three Fingers HMA-105 horses above the maximum limit of the AML. AR 3F-0599. BLM also found that the horses were using more than the amount of forage allocated for their use by between 25 and 30 percent. AR 3F-0599. BLM reported “heavy to severe utilization of riparian and upland vegetation in and adjacent to perennial streams, springs, and reservoirs.” AR 3F-0599. According to BLM, horse overpopulation caused areas of the HMA to experience resource damage, which was likely to continue if action was not taken. AR 3F-0599. BLM concluded that it needed to act to protect the land from deterioration and to meet the established objectives and goals of the 2002 Southeastern Oregon Resource Management Plan (“SEORMP”), which set the AML for Three Fingers HMA and provides guidance on management of the HMA. AR 3F-0599.

         To return the number of horses to within the AML range for the Three Fingers HMA, the 2011 EA proposed five alternative courses of action, including taking no action. AR 3F-0602. BLM adopted the fourth alternative. AR 3F-0592. This involved gathering 250 wild horses and transporting 175 of those horses to the Burns Wild Horse Corrals, from where they would be put into an adoption program or sent to a sanctuary. The remaining 75 horses would be gathered, sorted, and returned to the HMA. AR 3F-0592. BLM would adjust the sex ratio of the returned horses to slow population growth. AR 3F-0592. BLM released a preliminary version of the 2011 EA for public comment. AR 3F-0593-94. BLM received over four thousand responsive comments, which it reviewed and considered when finalizing the EA. AR 3F-0641-44.

         BLM determined, based on the 2011 EA, that the proposed gather would not have a significant impact on the environment, and issued a FONSI. AR 3F-0596. The 2011 EA predicted that in the 10-20 years following the 2011 EA, gathers to remove excess wild horses were reasonably foreseeable at approximately four-year intervals. AR 3F-0619. It noted that “[a]ny future wild horse management would be analyzed in appropriate environmental documents following site-specific planning with public involvement.” AR 3F-0619.

         B. The Planned 2016 Gather

         Between the 2011 gather and May 2016, the population of adult horses in the Three Fingers HMA grew to approximately 156. AR 3F-1595. Land within and adjacent to the HMA also experienced extended droughts. Some areas adjacent to the HMA experienced severe wildfires in 2013 and 2015, from which they were still recovering in May 2016. According to BLM, although those fires did not reach land within the Three Fingers HMA, the combination of drought and excess horses in the HMA forced horses to move outside of the HMA, and horse grazing outside the HMA impaired fire rehabilitation efforts in those areas. BLM concluded that this combination of factors was jeopardizing the health of the rangelands, wetlands, wildlife habitats, and wild horses. AR 3F-1595.

         In June 2016, the BLM Vale District Office proposed, and decided, to gather approximately 100 horses within the Three Fingers HMA, remove 50 of those horses permanently, and return 50 of the horses after treating the mares (female horses) with Porcine Zona Pellucida (“PZP-22”), a contraceptive. AR 3F-1595, 3F-1625. In conjunction with this proposed action and decision, BLM released a Determination of Land Use Plan Conformance and NEPA Adequacy (“June 2016 DNA”), AR 3F-1595-1605, and a corresponding Decision Record, AR 3F-1623-29. BLM concluded that the removal of excess horses was necessary to prevent further damage to natural resources. AR 3F-1596.

         BLM concluded that the gather conformed with two applicable Land Use Plans: the SEORMP and the Oregon Greater Sage-Grouse Proposed Resource Management Plan (“Sage-Grouse Plan”). AR 3F-1598. According to BLM, the proposed gather would aid efforts to attain the goals of these two Land Use Plans. BLM also concluded that two NEPA documents covered the proposed gather: the 2011 EA, and the Vale District Normal Fire Year Emergency Stabilization and Rehabilitation Plan and Environmental Assessment (“Vale District Fire Plan”). AR 3F-1598-99.

         BLM concluded that the proposed action was “essentially the same as that described in the [2011 EA].” AR 3F-1599. The difference between the action proposed and analyzed in the 2011 EA and the 2016 gather was that in the proposed 2016 gather, only a part, rather than all, of the excess horses would be removed. As such, BLM explained, the 2016 gather would have less of an environmental impact than the action chosen after the 2011 EA. AR 3F-1599. BLM therefore concluded “that the proposed action ha[d] been adequately analyzed in the [2011 EA].” AR 3F-1624. BLM further reported that it had reviewed monitoring data, modeling outputs, recent research, and new management guidance, and had concluded that these new analyses supported the existing analyses and conclusions in the 2011 EA. Thus, BLM concluded, no new information or change in circumstance required the preparation of a new or supplemental NEPA document. AR 3F-1600.

         The roundup was scheduled to begin on August 23, 2016. AR 3F-1705. On June 28, BLM conducted an aerial population inventory of the Three Fingers HMA. BLM counted 202 adult horses and 44 foals-higher than BLM's original estimate. AR 3F-1630-35.[2] On August 17, 2016, FOA filed a complaint (ECF 1) challenging the June 2016 gather Decision Record and DNA and seeking, among other things, an injunction preventing BLM from carrying out the planned gather.

         C. The Cherry Road Fire and Subsequent Actions Taken by BLM

         On August 21, two days before the scheduled roundup and while Plaintiff's motion was still pending before the Court, a wildfire broke out in the Three Fingers HMA. AR 3F-1642. On August 23, while the fire was still burning, BLM responded by withdrawing its June 2016 decision. AR 3F-1706. The Cherry Road fire burned approximately 14, 893 acres of the Wildhorse Basin Pasture. This constitutes 87 percent of the pasture, or about 24 percent of the entire Three Fingers HMA. AR 3F-1678.

         On August 28, BLM decided to conduct an emergency gather of horses in the Three Fingers HMA (“Emergency Gather”), issuing an Emergency Wild Horse Fire Gather Decision Record (“Emergency Gather Decision”). According to BLM, the Wildhorse Basin Pasture, of which approximately 90 percent was burned, represented approximately 50 percent of the range utilized by while horses in the HMA. AR 3F-1642. Portions of the pasture that were unburned had “limited perennial water sources with any adjacent available forage.” AR 3F-1642. The Emergency Gather Decision estimated the population of horses in the Three Fingers HMA to be 202 adult wild horses and 77 foals. AR 3F-1642. According to BLM, over half of that population resided in the northern 25 percent of the HMA, within the Wildhorse Basin Pasture. BLM noted that the Riverside Pasture was of limited use to the horses. According to BLM, wild horses did not reside in the middle 25 percent of the HMA due to a lack of water and steep, rugged terrain. AR 3F-1642. Wild horses no longer resided in the eastern 25 percent of the HMA. Id. The horses not residing in the Wildhorse Basin Pasture generally resided in the southern 25 percent of the HMA, on limited upland water sources and a few canyons that provided access to the Owyhee Reservoir. AR 3F-1642. In short, the Cherry Road fire removed available forage within 90 percent of the Wildhorse Basin Pasture, which itself constituted a large percentage of the range utilized by wild horses within the Three Fingers HMA.

         BLM planned to move 150 horses to another location and prepare them for adoption. AR 3F-1642-43. Ron Dunton, Acting Director for Oregon and Washington, wrote to the Chief of the Wild Horse and Burro Division on August 26 requesting approval for the Emergency Gather. AR 3F-1676. The request noted that the Vale District previously had secured approval to gather 50 horses from the area burned in the Cherry Road fire, and that “the same issues addressed in the previous gather approval [were] still present and further amplified as a result of” the Cherry Road fire. AR 3F-1678.

         According to BLM's estimates, the Emergency Gather would leave between 80 and 120 horses in the Riverside Pasture, on the southern end of the HMA. AR 3F-1642-43. This would result in a population at the low range of the AML for the Three Fingers HMA. BLM predicted that, most likely, none of the removed horses would need to be returned to the burned areas after the terrain recovered (which, BLM noted, takes about two active growing seasons), because the population of horses within the Three Fingers HMA was predicted to be over 100 by 2018. AR 3F-1643, 1678. BLM also concluded that “[a]ctions regarding impacts to gathering and returning horses will be the same as analyzed in the [2011 EA].” AR 3F-1643. According to BLM, both Dunton and BLM's Washington, D.C. office approved the gather request. AR 3F-1673, 1676. BLM posted the Emergency Gather Decision on August 29. AR 3F-1707.

         D. Procedural Background

         After BLM withdrew the June 2016 Decision Record, Plaintiff withdrew its pending motion for a preliminary injunction or temporary restraining order (ECF 20) and the Court denied the motion as moot (ECF 21). On September 1, Plaintiff filed a First Amended Complaint challenging the Emergency Gather. ECF 22. On May 8, 2017, Plaintiff filed a Second Amended Complaint (“Complaint”). ECF 35. Plaintiff asks the Court to: (1) declare that BLM's Emergency Gather Decision violated the Free-Roaming Wild Horses and Burros Act and the Administrative Procedure Act; (2) declare that BLM's Emergency Gather Decision violated NEPA; (3) enjoin any action authorized by the Emergency Gather ...

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