Campaign v. Bernhardt, Civil Action No. 18-1529 (BAH)

• Court: United States District Courts. United States District Court (Columbia)
• Writing for the Court: BERYL A. HOWELL, Chief Judge
• Citation: 442 F.Supp.3d 127
• Parties: AMERICAN WILD HORSE CAMPAIGN, et al., Plaintiffs, v. David BERNHARDT, et al., Defendants.
• Docket Number: Civil Action No. 18-1529 (BAH)
• Decision Date: 13 February 2020

442 F.Supp.3d 127

AMERICAN WILD HORSE CAMPAIGN, et al., Plaintiffs,
v.
David BERNHARDT, et al., Defendants.

Civil Action No. 18-1529 (BAH)

United States District Court, District of Columbia.

Signed February 13, 2020

442 F.Supp.3d 136

Elizabeth Leigh Lewis, Pro Hac Vice, William N. Lawton, Eubanks & Associates, LLC, Washington, DC, William Stewart Eubanks, II, Eubanks & Associates, LLC, Fort Collins, CO, for Plaintiffs.

Sarah Jane Sheffield, U.S. Department of Justice, Washington, DC, David W. Gehlert, U.S. Department of Justice Environment and Natural Resources Natural Resources Section, Denver, CO, for Defendants.

MEMORANDUM OPINION

BERYL A. HOWELL, Chief Judge

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When adopting the Wild Free-Roaming Horses and Burros Act ("WHBA") in 1971, Congress recognized that "wild free-roaming horses ... are living symbols of the historic and pioneer spirit of the West" and that these animals "contribute to the diversity of life forms within the Nation and enrich the lives of the American people." 16 U.S.C. § 1331. Yet, if not properly managed, wild horses can be destructive to the public lands they now inhabit. Wild free-roaming horses can consume resources necessary to the survival of native, including endangered, species, and can trample whatever is found underfoot, including indigenous plants and cultural artifacts. Unconcerned by the boundary lines drawn on maps, wild horses can stumble onto highways and into other dangerous areas, causing sometimes fatal injury to themselves or others. Additionally, when herds reach unsustainable population levels, wild horses may become malnourished and vulnerable to disease, especially during increasingly common periods of drought on Western public lands. These competing considerations frequently require removal of wild horses from parts of the public lands so that the horses may be, inter alia , adopted or relocated to pastures in the Midwest.¹

The Bureau of Land Management ("BLM") believes that removal of wild horses from an area of public lands in Nevada known as the "Caliente Complex" is currently necessary. BLM's position is not new. In 2008, BLM issued a land use plan that determined the Caliente Complex would not be managed for wild horses. Then, in 2009, BLM conducted a gather (i.e. , an effort to round-up, capture, and relocate wild horses) intended to remove all wild horses from the Complex. That effort, however, was not entirely successful, and today an estimated 1,744 wild horses are found in the Complex. Thus, in 2018 BLM determined that additional gathers are necessary.

The plaintiffs, three non-profit organizations and an individual concerned about

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the health and welfare of these wild horses, see Compl. ¶¶ 6–20, ECF No. 1, object to the new proposed gathers of wild horses in the Caliente Complex. Yet, the plaintiffs never challenged the 2008 decision to manage the Caliente Complex for no horses nor the gather conducted in 2009. Even now, the plaintiffs do not argue that the current wild horse population is sustainable or that agency action is unnecessary. See Pls.' Combined Opp'n Defs.' Cross-Mot. & Reply Supp. Pls.' Mot. ("Pls.' Opp'n") at 2–3, ECF No. 25. Nonetheless, the plaintiffs challenge BLM's 2018 decision that removal of all wild horses from the Caliente Complex is currently necessary, and belatedly challenge BLM's 2008 decision to manage the Caliente Complex for no horses. Put another way, the plaintiffs have initiated this lawsuit ten years after BLM made the key determination that the Caliente Complex cannot support wild horses. They assert violations of the WHBA, the National Environmental Policy Act ("NEPA"), and the Administrative Procedure Act ("APA").

Pending before the Court is the plaintiffs' motion for summary judgment, Mot. Summ. J. ("Pls.' Mot."), ECF No. 18, as well as the defendants' cross-motion, Defs.' Cross-Mot. Summ. J. & Opp'n Pls.' Mot. ("Defs.' Opp'n"), ECF No. 20. The plaintiffs' concern for wild horses appears to be heartfelt, but the time limit for challenging BLM's 2008 decision expired years ago, and in 2018, BLM complied with the WHBA and NEPA in determining that removal of all horses in the Caliente Complex is currently necessary. Thus, for the reasons detailed below, the plaintiffs' motion for summary judgment is denied, and the defendants' cross-motion is granted.²

I. BACKGROUND

The statutory framework governing the plaintiffs' claims is discussed first, followed by the details of the BLM actions at issue in this case.

A. Statutory and Regulatory Framework

1. The Wild Free-Roaming Horses and Burros Act

In 1971, Congress enacted the WHBA to "protect[ ]" wild horses "from capture, branding, harassment, or death." 16 U.S.C. § 1331. To accomplish this goal, Congress declared that wild horses were "to be considered in the area where presently found, as an integral part of the natural system of the public lands." Id. Further, Congress tasked the Secretary of the Interior with "protect[ing] and manag[ing] wild free-roaming horses" found on public lands administered by BLM, authorizing the Secretary, inter alia , to "designate and maintain specific ranges on public lands as sanctuaries for their protection and preservation." Id. § 1333(a).

"By 1978, however, Congress recognized that circumstances had changed." Am. Horse Prot. Ass'n, Inc. v. Watt , 694 F.2d 1310, 1316 (D.C. Cir. 1982) (Ginsburg, Ruth B., J.). The 1971 act was so successful that "the situation ... appear[ed] to have reversed, and action [was] needed to prevent a successful program from exceeding its goals and causing animal habitat destruction." Id. (internal quotation mark omitted) (quoting H.R. REP. NO. 95-1122 (1978)). Therefore, "Congress struck a new balance ... between protecting wild horses and competing interests in the resources

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of the public ranges," and "judged that prompt action was needed to redress the imbalance that had developed." Id. As the D.C. Circuit has explained, "[t]he main thrust of the 1978 amendments [was] to cut back on the protection the Act affords wild horses, and to reemphasize other uses of the natural resources wild horses consume." Id.

The WHBA continues to require that the Secretary of the Interior—here, acting through BLM—to conduct wild horse "management activities" "at the minimal feasible level," i.e. , with as little disruption in the horses' lives as possible. 16 U.S.C. § 1333(a). The law also now provides, though, that "[t]he Secretary shall manage wild free-roaming horses and burros in a manner that is designed to achieve and maintain a thriving natural ecological balance on the public lands." Id. "Where the Secretary determines ... that an overpopulation exists on a given area of the public lands and that action is necessary to remove excess animals," the Secretary must "immediately remove excess animals from the range so as to achieve appropriate management levels." Id. § 1333(b)(2).

To carry out its duty to manage the wild horses on the public lands under its control, BLM has created two types of areas: "herd management areas" ("HMAs") and "herd areas" ("HAs"). HMAs are managed for wild horses. "In each [HMA], the Bureau determines an ‘appropriate management level’ (‘AML’) for the wild horse and burro populations." Fund for Animals, Inc. v. U.S. Bureau of Land Mgmt. , 460 F.3d 13, 15 (D.C. Cir. 2006). BLM defines AML "as ‘the median number of adult wild horses or burros determined through BLM's planning process to be consistent with the objective of achieving and maintaining a thriving ecological balance and multiple-use relationship in a particular area.’ " Id. By contrast, HAs are areas not managed for wild horses. See 43 C.F.R. § 4710.4 ("Management of wild horses and burros shall be undertaken with the objective of limiting the animals' distribution to herd areas."). Consequently, "[t]he AML of a given HA is typically zero." W. Rangeland Conservation Ass'n v. Zinke , 265 F. Supp. 3d 1267, 1274 n.5 (D. Utah 2017).

2. The National Environmental Policy Act

NEPA represents "a broad national commitment to protecting and promoting environmental quality." Robertson v. Methow Valley Citizens Council , 490 U.S. 332, 348, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989) (citing 42 U.S.C. § 4331 ). To this end, NEPA was created, in part, to "establish a set of ‘action forcing’ procedures requiring an environmental impact statement on any proposed major Federal action which could significantly affect the quality of the environment." S. REP. NO. 94-152, at 3 (1975) (recounting NEPA's "three major purposes" as part of discussion recommending NEPA amendment). Among these procedures, NEPA requires federal agencies, "to the fullest extent possible," to prepare and include an Environmental Impact Statement ("EIS") in "every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C) ; see also Winter v. NRDC , 555 U.S. 7, 15–16, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008).³ As part of this

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