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Friends of Animals v. Bureau of Land Management

United States District Court, D. Oregon

August 9, 2018

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

          R. Scott Jerger, Field Jerger LLP, 621 SW Morrison Street, Suite 510, Portland, OR 97205; Michael Ray Harris, Friends of Animals, Western Region Office, Of Attorneys for Plaintiff.

          Jeffrey H. Wood, Acting Assistant Attorney General, Lucinda J. Bach, Trial Attorney, United States Department of Justice, Environment & Natural Resources Division, Natural Resources Section, Of Attorney for Defendant.

          OPINION AND ORDER

          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 (the “HMA”) in response to an August 2016 wildfire violated the National Environmental Policy Act (“NEPA”) and the Wild Free-Roaming Horses and Burros Act (“WHBA”). FOA and BLM cross-moved for summary judgment (ECF 50, 55). In an Opinion and Order dated April 2, 2018 (ECF 60), the Court granted in part and denied in part each party's motion for summary judgment. The Court found that BLM's action violated NEPA but not the WHBA. The Court deferred deciding on the proper remedy for BLM's NEPA violation. Before the Court now are the parties' supplemental briefs on the issue of remedy. For the reasons discussed, BLM's Emergency Gather Decision is remanded, but the Court declines to vacate the decision.

         BACKGROUND[1]

         A. Cherry Road Fire and Emergency Gather

         On August 21, 2016, a wildfire broke out in the Three Fingers HMA. AR 3F-1642. In response to the fire, BLM conducted an emergency gather of horses in the Three Fingers HMA (“Emergency Gather”), issuing an Emergency Wild Horse Fire Gather Decision Record (“Emergency Gather Decision”). In the Emergency Gather Decision, BLM planned to remove 150 horses from the HMA. AR 3F-1642-43. The Emergency Gather Decision estimated the population of horses in the HMA to be 202 adult wild horses and 77 foals. AR 3F-1642. The Appropriate Management Level (AML) for the Three Fingers HMA-the optimal population range for horses on the HMA-is between 75 and 150 horses. BLM estimated that after the Emergency Gather, between 80 and 120 wild horses would remain on the HMA (albeit in a different pasture, the Riverside Pasture). AR 3F-1643.

         The Emergency Gather Decision stated that the Cherry Road Fire “removed forage necessary to maintain wild horse herds in a thriving natural ecological balance” in the Wildhorse Basin Pasture. AR 3F-1642. The rationales for the Emergency Gather were several. BLM determined that the gather was necessary “to ensure survival of the wild horses through the remainder of the summer and upcoming winter, and to ensure the recovery of the rangelands and habitat in the Wildhorse Basin Pasture.” AR 3F-1643. A combination of factors caused by the fire, including “a lack of forage and limited access to unburned forage with adjacent water sources, ” would “begin to negatively affect wild horse health.” Id. Protecting the Wildhorse Basin Pasture was “essential . . . to allow adequate recovery of the rangelands and to meet objectives for the management of the HMA.” Id.

         B. Previous Gather Decisions and NEPA Analyses

         In June 2016, before the Cherry Road Fire broke out, BLM had concluded that the removal of excess horses from the HMA was necessary to prevent damage to natural resources (“June 2016 Gather Decision”). AR 3F-1596. BLM decided to gather approximately 100 horses within the Three Fingers HMA, remove 50 of those horses permanently, and return 50 after treating the mares (female horses) with a contraceptive. AR 3F-1595, 3F-1625. BLM concluded that the proposed gather conformed with two applicable Land Use Plans, and with two preexisting NEPA documents: an Environmental Assessment (“EA”) from 2011 (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. The 2011 EA analyzed the environmental impact of conducting a gather on the Three Fingers HMA by comparing five alternative courses of action, including taking no action at all. AR 3F-0602. The Vale District Fire Plan streamlines emergency stabilization and rehabilitation procedures for the region.

         The June 2016 Gather Decision concluded that the gather proposed was “essentially the same as that described in the [2011 EA].” AR 3F-1599. In fact, BLM concluded, the 2016 Gather would have less of an environmental impact than the action taken after the 2011 EA, because only some, rather than all, of the horses above AML would be removed. AR 3F-1599. BLM therefore determined “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, and that no new information or change in circumstance required the preparation of a new or supplemental NEPA document. AR 3F-1600.

         Two days before the June 2016 Gather was scheduled to begin, the Cherry Road Fire broke out, and BLM withdrew the June 2016 Gather Decision. The Emergency Gather Decision stated that “[a]ctions regarding impacts to gathering and returning horses will be the same as analyzed in the [2011 EA].” AR 3F-1643. An internal request for approval of the Emergency Gather noted that the Vale District previously had been approved to gather 50 horses, 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. The request also noted that the proposed Emergency Gather would leave the horse population still within AML, and predicted that none of the removed horses would need to be returned after the range recovered (which takes about two active growing seasons), because the horse population was projected to be more than 100 by 2018. AR 3F-1643, 1678.

         C. The Court's Decision

         FOA challenged the Emergency Gather Decision, arguing that it failed to comply with NEPA procedural requirements and with the WHBA. On April 2, 2018, the Court agreed with FOA with respect to its NEPA claim. The Court held that the Emergency Gather Decision failed to comply with NEPA because it did not comply with NEPA provisions relating to emergency actions, and the BLM did not either conduct a full ...


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