Am. Wild Horse Campaign v. Zinke

• Decision Date: 18 December 2018
• Docket Number: Case No. 3:18-cv-00059-LRH-CBC
• Citation: 353 F.Supp.3d 971
• Parties: AMERICAN WILD HORSE CAMPAIGN and Kimerlee Curyl, Plaintiffs, v. Ryan ZINKE, Secretary of the Department of the Interior, Michael D. Nedd, Acting Deputy Director of Operations of the Bureau of Land Management, and Jill Silvey, District Manager Elko District Office of the Bureau of Land Management, Defendants.
• Court: U.S. District Court — District of Nevada

353 F.Supp.3d 971

AMERICAN WILD HORSE CAMPAIGN and Kimerlee Curyl, Plaintiffs,

v.Ryan ZINKE, Secretary of the Department of the Interior, Michael D. Nedd, Acting Deputy Director of Operations of the Bureau of Land Management, and Jill Silvey, District Manager Elko District Office of the Bureau of Land Management, Defendants.

Case No. 3:18-cv-00059-LRH-CBC

United States District Court, D. Nevada.

Signed December 18, 2018

Katherine Anne Meyer, William Nicholson Lawton, Meyer Glitzenstein & Crystal, Washington, DC, Christopher D. Phipps, Jon M. Ludwig, Wilson Elser Moskowitz Edelman & Dicker LLP, Las Vegas, NV, Julie Cavanaugh-Bill, Cavanaugh-Bill Law Offices, LLC, Elko, NV, for Plaintiff.

Andrea L. Berlowe, Daniela A. Arregui, Devon Lea Flanagan, U.S. Department of Justice, Washington, DC, Holly A. Vance, U.S. Attorney's Office, Reno, NV, for Defendant.

AMENDED ORDER

(Caption correction)

LARRY R. HICKS, UNITED STATES DISTRICT JUDGE

Plaintiffs (collectively American Wild Horse Campaign or "AWHC")¹ have filed a motion for summary judgment on all their claims against defendants (collectively Bureau of Land Management or "BLM"). (ECF No 32). BLM responded with its own motion for summary judgment on July 31, 2018. (ECF No. 34). On October 29, 2018, the Court held oral arguments on both AWHC's motion for summary judgment and a similar motion in a companion case.² Following oral arguments, AWHC filed an unopposed motion for the Court to take notice of supplemental authority. (ECF No. 42). For the reasons stated below, the Court will deny AWHC's motion for summary judgment and grant BLM's motion for summary judgment.

I. Factual Background and Procedural History

This action concerns BLM's approved plan to gather, round-up, and permanently remove approximately 9,000 wild horses from the Antelope and Triple B wild horse complexes ("Antelope and Triple B Complexes") located in southeastern Elko County and northern White Pine County, Nevada, pursuant to the Wild Free-Roaming Horses and Burros Act ("WHBA"), 16 U.S.C. §§ 1331 et seq. BLM oversees and administers the Antelope and Triple B Complexes alongside the wild horses that call the complexes home. The Antelope Complex is composed of the Antelope Herd Management Area ("HMA"),³ the Antelope Valley HMA, the Goshute HMA, and the Spruce-Pequop HMA. The Triple B Complex is composed of the Triple B HMA, the Maverick-Medicine HMA, and the Cherry Springs Wild Horse Territory. Together, the Antelope and Triple B Complexes comprise over 2.8 million acres of public land managed by BLM.

In February 2016 and March 2017, BLM conducted wild horse population inventories throughout the Antelope and Triple B Complexes. (Administrative Record ("AR") at 365). Following the inventories, BLM discovered that there were roughly 9,525 wild horses residing in the complexes and that wild horses were beginning to migrate outside of designated HMAs, encroaching upon private land to forage for food and water. (Id. ) The previously-determined Appropriate Management Levels ("AML")⁴ for wild horse populations in the Antelope and Triple B Complexes is between 899 horses on the low range and 1,678 horses on the high range. (AR at 11). Thus, at the time of the inventories, the total wild horse population on the complexes was eleven times greater than the low AML and nearly six times greater than the high AML. Based on this information, in Spring 2017, BLM determined that there were over 9,000 excess wild horses living in the complexes and that a gather to remove them was required under the WHBA to bring the wild horse population back within the appropriate AML range.

Initially, BLM compiled a preliminary gather plan and Environmental Assessment ("EA") for gathering and removing the excess wild horses from the complexes known as The Preliminary Antelope and Triple B Complexes Gather Plan EA, DOI-BLM-NV-N030-2017-0010-EA. The preferred action under the preliminary plan was to gather and permanently remove approximately 6,700 wild horses from the complexes over a ten-year period, utilize population and fertility controls on a portion of the remaining wild horse population, adjust the sex ratio of the wild horse population within the HMAs, and manage a portion of the male wild horse population as castrated geldings. The preliminary gather plan was made available for public review and comment from July 21 through August 21, 2017. (AR at 196, 370). During this period, BLM received approximately 4,950 comment submissions,⁵ including a lengthy comment from AWHC. (AR at 507–41).

After the close of the public comment period, BLM prepared a final gather plan and EA in December 2017: The Antelope and Triple B Complexes Gather Plan EA, DOI-BLM-NV-E030-2017-0010-EA ("2017 Gather Plan" or "Final EA"). (AR at 1–364). On December 21, 2017, BLM issued a final Decision Record approving the proposed gather, removal, and fertility controls outlined in Alternative A of the 2017 Gather Plan.⁶ (AR at 365–73). Also on December 21, 2017, BLM issued a Finding of No Significant Impact ("FONSI") for the 2017 Gather Plan, finding that "implementation of [the 2017 Gather Plan] will not significantly affect the quality of the human environment" and, therefore, "preparation of an Environmental Impact Statement ("EIS") [was] not required as per Section 102(2)(C) of the National Environmental Policy Act ("NEPA")." (AR at 374–77). BLM conducted the first gather of the 2017 Gather Plan on January 31, 2018; it removed approximately 1,300 horses from the Triple B Complex. (ECF No. 34 at 15).

On February 6, 2018, AWHC filed its complaint against BLM, seeking injunctive and declaratory relief relating to BLM's decision to geld wild male horses and use GonaCon (an immunocontraceptive vaccine) on wild mares.⁷ (ECF No. 1).

II. Legal Standard

A. Summary Judgment

Summary judgment is appropriate only when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show "that there is no genuine issue as to any material fact and that the [moving party] is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). In assessing a motion for summary judgment, the evidence, together with all inferences that can reasonably be drawn therefrom, must be read in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ; Cnty of Tuolumne v. Sonora Cmty. Hosp. , 236 F.3d 1148, 1154 (9th Cir. 2001). The moving party bears the burden of informing the court of the basis for its motion, along with evidence showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). On those issues for which it bears the burden of proof, the moving party must make a showing that is "sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party." Calderone v. U.S. , 799 F.2d 254, 259 (6th Cir. 1986).

To successfully rebut a motion for summary judgment, the non-moving party must point to facts supported by the record which demonstrate a genuine issue of material fact. Reese v. Jefferson Sch. Dist. No. 14J , 208 F.3d 736 (9th Cir. 2000). A "material fact" is a fact "that might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Where reasonable minds could differ on the material facts at issue, summary judgment is not appropriate. See v. Durang , 711 F.2d 141, 143 (9th Cir. 1983). A dispute regarding a material fact is considered genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Liberty Lobby , 477 U.S. at 248, 106 S.Ct. 2505. However, the mere existence of a scintilla of evidence in support of the non-moving party's position will be insufficient to establish a genuine dispute; there must be evidence on which the jury could reasonably find for the nonmoving party. See id. at 252, 106 S.Ct. 2505.

Where, as here, the parties filed cross-motions for summary judgment on the same claims, the court must consider each party's motion separately and on its own merits, "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). Further, 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). See also Fair Hous. Council of Riverside County, Inc. v. Riverside Two , 249 F.3d 1132, 1134 (9th Cir. 2001) ("[T]he court must consider the appropriate evidentiary material identified and submitted in support of both motions, and opposition to both motions, before ruling on each of them.").

B. Administrative Review

Under the Administrative Procedures Act ("APA"), a District Court may set aside an agency decision only if the court finds it to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. § 706(2)(A). An agency decision is "arbitrary and capricious" if the agency (1) relied on a factor that Congress did not intend it to consider; (2) failed to consider an important factor or aspect of the problem; (3) failed to articulate a rational connection between the facts found and the conclusions made; (4) supported the decision with a rationale that runs counter to the evidence or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise; or (5) made a clear error in judgment. Cal. Energy Comm'n v. Dep't of Energy , 585 F.3d 1143, 1150–51 (9th Cir. 2009). At all times, the plaintiff carries the burden of showing that any decision or action made by the agency was arbitrary and capricious. Kleppe v. Sierra Club , 427 U.S. 390, 412, 96...