Am. Wild Horse Pres. Campaign v. Zinke

• Decision Date: 29 September 2017
• Docket Number: Case No. 1:16-cv-00001-EJL
• Parties: AMERICAN WILD HORSE PRESERVATION CAMPAIGN, et al., Plaintiffs v. RYAN ZINKE, et al., Defendants.
• Court: U.S. District Court — District of Idaho

AMERICAN WILD HORSE PRESERVATION CAMPAIGN, et al., Plaintiffs v. RYAN ZINKE, et al., Defendants.

Case No. 1:16-cv-00001-EJL

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

September 29, 2017

MEMORANDUM ORDER

INTRODUCTION

Pending before the Court in the above-entitled matter are the Cross-Motions for Summary Judgment filed by the parties in this case. The Motions are fully briefed and ripe for the Court's consideration. The Court finds that the facts and legal arguments are adequately presented in the briefs and record. In the interest of avoiding further delay, and because the decisional process would not be significantly aided by oral argument, the Motions are decided on the record without a hearing. For the reasons stated below, the Court grants in part the parties' Motions for Summary Judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs¹ have brought this action against the Defendants² challenging the Bureau of Land Management's (BLM) August 22, 2014 Final Environmental Impact Statement (FEIS) and September 2, 2015 Record of Decision (ROD) revising the Jarbidge Resource Management Plan (JRMP), consistent with the Federal Land Policy and Management Act (FLPMA). (Dkt. 1.) Specifically, Plaintiffs oppose the BLM's decision adopting Alternative VI which proposes that the Saylor Creek wild horse herd be managed as a non-reproducing herd.

Plaintiffs' claims are brought under the Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq., alleging violations of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., and the Wild Free-Roaming Horses and Burros Act (WHA), 16 U.S.C. § 1331-1340. (Dkt. 1.) On the first claim, Plaintiffs allege the BLM violated NEPA by failing to take a hard look at and consider the significant impacts of its decision, a relevant scientific report, and a viable alternative. (Dkt. 1 at ¶¶ 74-84.) Plaintiffs further allege the BLM failed to properly respond to public comments thereby failing to engage in informed decision making and provide for meaningful public input as required by NEPA. Plaintiffs' next claim alleges the BLM violated the WHA and the APA by failing toconsider how its decision conflicts with its duties under the WHA. (Dkt. 1 at ¶¶ 85-88.) Defendants counter that the BLM's decision was in accord and fully complied with the applicable standards and requirements of these statutes. (Dkt. 10, 26, 30.) The parties filed Cross-Motions for Summary Judgment. (Dkt. 20, 26.) The Court finds as follows.

STATUTORY FRAMEWORK

1. National Environmental Policy Act

Under NEPA, federal agencies are required to "assess the environmental consequences of their actions before those actions are undertaken." Klamath-Siskiyou Wildlands Ctr. v. United States Bureau of Land Mgmt., 387 F.3d 989, 993 (9th Cir. 2004). NEPA serves two fundamental purposes: (1) to require agency consideration of detailed information concerning significant environmental impacts of a proposed action and (2) to inform the public that the agency has considered the environmental concerns in its decisionmaking process while ensuring that the public can both access and contribute to that body of information via comments. San Luis Obispo Mothers for Peace v. Nuclear Regulatory Comm'n, 449 F.3d 1016, 1034 (9th Cir. 2006) (citation omitted).

NEPA imposes procedural rather than substantive requirements to ensure the agency took a "hard look" at how its decision will affect the environment by considering the relevant evidence and information before it and then placing its decision, its explanation for reaching its decision, and the basis for its decision before the public. Oregon Nat. Desert Assn. v. United States Bureau of Land Mgmt., 625 F.3d 1092, 1099-1100 (9th Cir. 2010); see also Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 23 (2008). Taking a "hard look" requires the agency to consider "all foreseeable direct and indirect impacts" as wellas discuss "adverse impacts that do[] not improperly minimize negative side effects." N. Alaska Envtl. Ctr. v. Kempthorne, 457 F.3d 969, 975 (9th Cir. 2006) (internal quotation marks and citations omitted); see also Or. Natural Res. Council Fund v. Brong, 492 F.3d 1120, 1133 (9th Cir. 2007) ("[G]eneral statements about possible effects and some risk do not constitute a hard look absent a justification regarding why more definitive information could not be provided.") (internal quotation marks omitted). As such, NEPA "does not mandate particular results, but simply describes the necessary process" that an agency must follow in issuing an EIS. Kettle Range Conservation Grp. v. United States Forest Serv., 148 F.Supp.2d 1107, 1116 (E.D. Wash. 2001) (citing Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989)); Kern v. United States Bureau of Land Mgmt., 284 F.3d 1062 1070-71 (9th Cir. 2002) (NEPA "'simply guarantees a particular procedure,'" rather than a substantive result.).

In reviewing an EIS, courts apply a rule of reason standard to "determine whether the EIS contains a reasonably through discussion of the significant aspects of the probable environmental consequences." League of Wilderness Defenders-Blue Mnts. Biodiversity Proj. v. United States Forest Serv., 689 F.3d 1060, 1076 (9th Cir. 2012) (citation omitted). "This standard 'requires a pragmatic judgment whether the EIS's form, content[,] and preparation foster both informed decision-making and informed public participation.'" Id. (quoting Native Ecosystems Council v. United States Forest Serv., 418 F.3d 953, 960 (9th Cir. 2005)). The Court's role under NEPA is not to determine whether the BLM's decision is correct but is, instead, to simply ensure that the agency undertook the requisite "hard look" at the relevant evidence in making its decision and disclosed the basis for its decisionand environmental impact of its actions to the public. Assn. of Pub. Agency Customers, Inc. v. Bonneville Power Admin., 126 F.3d 1158, 1183 (9th Cir. 1997); Oregon Nat. Resources Council v. Lowe, 109 F.3d 521, 527 (9th Cir. 1997)).

2. Wild Free-Roaming Horses and Burros Act

Enacted in 1971, the Wild Free-Roaming Horses and Burros Act (WHA) mandates that wild horses, as "living symbols of the historic and pioneer spirit of the West," are "protected from capture, branding, harassment or death," and as such are considered an "integral part" of public lands in areas where they were presently found. 16 U.S.C. § 1331; see also Kleppe v. New Mexico, 426 U.S. 529, 535-36 (1976) (citing legislative history). The statute requires the Secretary of the Interior, through the BLM as its delegate, to "manage wild freeroaming horses and burros in a manner that is designed to achieve and maintain a thriving natural ecological balance on the public lands." Fund for Animals v. United States Bureau of Land Mgmt., 460 F.3d 13, 15 (D.C. Cir. 2006) (quoting 16 U.S.C. § 1333(a)). The BLM uses localized "herd management areas" (HMAs) established in accordance with broader land use plans, to manage wild horse herds. 16 U.S.C. § 1332(c); 43 C.F.R. § 4710.3-1; see also 16 U.S.C. § 1332(a) (the BLM maintains "specific ranges on public lands as sanctuaries for their protection and preservation").

BLM must maintain a current inventory of wild horses so that it can "make determinations as to whether and where an overpopulation exists and whether action should be taken to remove excess animals; [and] determine appropriate management levels [(AML)] of wild free-roaming horses [ ] on these areas of public lands...." 16 U.S.C. § 1333(b)(1). The BLM determines an AML for each HMA, based upon the number of adultwild horses or burros consistent with "achieving and maintaining a thriving ecological balance and multiple-use relationship in a particular herd area." Fund for Animals, 460 F.3d at 15. The BLM defines the AML as "the number of wild horses that can be sustained within a designated HMA which achieves and maintains a thriving natural ecological balance in keeping with the multiple-use management concept for the area." In Def. of Animals v. United States Dept. of Interior, 751 F.3d 1054, 1072 (9th Cir. 2014). The Ninth Circuit describes the AML as "a vehicle used [by the BLM] to move towards a thriving natural ecological balance by which the BLM is alerted to address population imbalance." Id.

When the BLM determines "that an overpopulation exists on a given area of the public lands and that action is necessary to remove excess animals," the WHA requires the BLM to "immediately remove excess animals from the range so as to achieve the [AML]." 16 U.S.C. § 1333(b)(2). The term "excess animals" is defined as "wild free-roaming horses or burros (1) which have been removed from an area by the Secretary pursuant to applicable law or, (2) which must be removed from an area in order to preserve and maintain a thriving natural ecological balance and multiple-use relationship in that area." Id. § 1332(f). Before taking such action, the BLM prepares a detailed "gather" plan and prepares an appropriate NEPA document. Fund for Animals, 460 F.3d at 16. The BLM must "determine whether [AMLs] should be achieved by removal or destruction of excess animals, or other options (such as sterilization or natural controls on population levels)." 16 U.S.C. § 1333(b)(1).

In 1978 the WHA was amended to provide the BLM with greater authority and discretion to manage and remove excess horses from the rangeland so that BLM could"maintain a current inventory of the animals." 16 U.S.C. § 1333(b); American Horse Prot. Assn. v. Watt, 694 F.2d 1310, 1316-18 (D.C. Cir. 1982). The WHA gives the Secretary of Interior, and thus the BLM, a high degree of discretionary authority in managing wild horses on public lands. American Horse Protection Assn. v. Frizzell, 403 F.Supp. 1206, 1217 (D. Nev. 1975). That discretion, however, has limits. For example, the BLM may not choose inhumane management options, and must "protect and manage wild free-roaming horses and burros as...