Friends Animals v. Pendley

Decision Date28 February 2021
Docket NumberCivil Action No. 19-3506 (CKK)
Citation523 F.Supp.3d 39
Parties FRIENDS OF ANIMALS, Plaintiff, v. William Perry PENDLEY, in his official capacity as the Deputy Director of the United States Bureau of Land Management, and the United States Bureau of Land Management, Defendants.
CourtU.S. District Court — District of Columbia

Courtney Renee McVean, Louisville, CO, Jennifer Best, Friends of Animals, Centennial, CO, for Plaintiff.

Davis Aaron Backer, Lucinda J. Bach, United States Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, United States District Judge

The Secretary of the Interior and the United States Bureau of Land Management ("BLM") are responsible for managing wild horse and burro populations on public lands throughout the country. In this case, the animal-rights organization Friends of Animals ("Plaintiff") argues that BLM exceeded the bounds of its authority when managing these animals. Plaintiff specifically challenges two distinct BLM actions: a 2019 BLM instruction memorandum (the "2019 Instruction Memorandum") and a 2019 BLM decision to remove wild horses and burros over a ten-year period from the Twin Peaks Herd Management Area, a range along the California-Nevada border (the "2019 Gather Plan"). Based on the record before the Court and publicly available information, BLM has not yet carried out or scheduled any animal round ups under the 2019 Gather Plan, as of the present date.

Plaintiff's complaint raises seven counts. In Counts I, II, III, IV, and V, Plaintiff challenges the 2019 Gather Plan by asserting that the plan violates both the Wild Free-Roaming Horses and Burros Act ("WHBA") and the National Environmental Policy Act ("NEPA"). In Counts VI and VII, Plaintiff challenges the 2019 Instruction Memorandum, arguing that BLM issued the instruction memorandum in violation of the Administrative Procedure Act ("APA"). Now pending before the Court is Plaintiff's motion for summary judgment, seeking judgment on each of these seven counts. Also pending before the Court is Defendantscross-motion for summary judgment, which requests judgment in favor of Defendants on each of Plaintiff's seven counts.

Upon consideration of the briefing, the relevant authorities, and the record as a whole,1 the Court first concludes that the 2019 Instruction Memorandum does not violate the APA. Therefore, the Court will GRANT summary judgment in favor of Defendants, as to Counts VI and VII, and DISMISS WITH PREJUDICE those two counts. The Court, however, will not reach the merits of the remaining Counts I, II, III, IV, and V, at this time. The Court has identified sua sponte a threshold problem with the justiciability of these five counts, which each pertain to the 2019 Gather Plan. Because the parties did not address this question of justiciability in their briefs, the Court will HOLD IN ABEYANCE the partiescross-motions for summary judgment on Counts I, II, III, IV, and V, and permit the parties an opportunity to respond to the Court's justiciability analysis presented herein.

I. BACKGROUND
A. Statutory Framework

In 1971, Congress enacted the Wild Free-Roaming Horses and Burros Act ("WHBA"), a law which identified wild horses and burros "as an integral part of the natural system of the public lands" and called for their protection "from capture, branding, harassment, or death." 16 U.S.C. § 1331. "By 1978, however, Congress recognized that circumstances had changed," as wild horse and burro populations increased to the point of threatening natural habitats and resources. Am. Horse Prot. Ass'n, Inc. v. Watt , 694 F.2d 1310, 1316 (D.C. Cir. 1982) (Ginsburg, Ruth B., J.). Accordingly, Congress amended the WHBA in 1978 to strike "a new balance ... between protecting wild horses and competing interests in the resources of the public ranges." Id. "The main thrust of the 1978 amendments is to cut back on the protection the [WHBA] affords wild horses, and to reemphasize other uses of the natural resources wild horses consume." Id.

As amended, the WHBA places "[a]ll wild free-roaming horses and burros ... under the jurisdiction of the Secretary [of the Interior] for the purpose of management and protection." 16 U.S.C. § 1333(a). The WHBA now requires the Secretary, acting through the Bureau of Land Management ("BLM"), "to 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. But in doing so, BLM must conduct wild horse and burro " ‘management activities’ ‘at the minimal feasible level,’ i.e., with as little disruption in the horses’ [and burros’] lives as possible." Am. Wild Horse Campaign v. Bernhardt , 442 F. Supp. 3d 127, 139 (D.D.C. 2020) (quoting 16 U.S.C. § 1333(a) ).

"To carry out its duty to manage the wild horses [and burros] on the public lands under its control," BLM administers "herd management areas" ("HMAs"). Am. Wild Horse Campaign , 442 F. Supp. 3d at 139. In each HMA, BLM "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), in conjunction with the agency's broader land use plan for the area, see 43 C.F.R. §§ 4710.1, 4710.3-1. 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." Fund for Animals, Inc. , 460 F.3d at 16.

Once the agency sets an AML for a given HMA, the WHBA directs BLM to "determin[e] where wild horse ... overpopulations exist." Am. Horse Prot. Ass'n, Inc. , 694 F.2d at 1317 (citing 16 U.S.C. § 1333(b)(1) ). Where BLM determines that "an overpopulation exists on a given area of the public lands and that action is necessary to remove excess animals, [BLM] shall immediately remove excess animals from the range so as to achieve appropriate management levels." 16 U.S.C. § 1333(b)(2). The WHBA requires the BLM to determine the "necessity" of a removal on the basis of "current" information. Id. But within this framework, " ‘the agency has wide discretion in how it addresses [an identified] overpopulation.’ " Am. Wild Horse Campaign , 442 F. Supp. 3d at 154 (quoting W. Rangeland Conservation Ass'n v. Zinke , 265 F. Supp. 3d 1267, 1282 (D. Utah 2017) ). For example, BLM may initiate a gather of excess animals or employ other population control measures, such as fertility controls and sterilization. See Fund for Animals, Inc. , 460 F.3d at 23 ; TP 1, 443. BLM has developed an agency handbook and instruction memoranda, which provide guidance on how agency personnel should manage HMAs and carry out necessary animal removals. See TP 12862–65; TP 12895–98; TP 12906.

In its effort to manage wild horse and burro populations, BLM must also comply with the requirements of the National Environmental Policy Act ("NEPA"). See 42 U.S.C. § 4331. NEPA requires federal agencies to "identify and assess in advance the likely environmental impact of [their] proposed actions, including its authorization or permitting of private actions." Sierra Club v. U.S. Army Corps of Engineers , 803 F.3d 31, 36 (D.C. Cir. 2015) (citing Dep't of Transp. v. Pub. Citizen , 541 U.S. 752, 756–57, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004) ). NEPA "serves the twin purposes of ensuring that (1) agency decisions include informed and careful consideration of environmental impact, and (2) agencies inform the public of that impact and enable interested persons to participate in deciding what projects agencies should approve and under what terms." Id. at 36–37 (citing Pub. Citizen , 541 U.S. at 768, 124 S.Ct. 2204 ). NEPA accomplishes these purposes by requiring agencies to take a " ‘hard look’ at their proposed actions’ environmental consequences in advance of deciding whether and how to proceed." Id. at 37 (citing Robertson v. Methow Valley Citizens Council , 490 U.S. 332, 350–51, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989) ).

NEPA's "major action-forcing provision ... is the requirement that all agencies of the Federal government prepare a detailed environmental analysis"—an Environmental Impact Statement ("EIS")—for "major Federal actions significantly affecting the quality of the human environment." Found. on Econ. Trends v. Heckler , 756 F.2d 143, 146 (D.C. Cir. 1985) (quoting 42 U.S.C. § 4332(C) (internal quotation marks omitted)). An EIS must assess the action's anticipated "direct and indirect environmental effects," and consider "alternatives that might lessen any adverse environmental impact." Sierra Club , 803 F.3d at 37 (citing 42 U.S.C. § 4332(C) ; 40 C.F.R. § 1508.11 ). "If any significant environmental impacts might result from the proposed agency action, then an EIS must be prepared before the agency action is taken." Grand Canyon Trust v. FAA , 290 F. 3d 339, 340 (D.C. Cir. 2002) (quoting Sierra Club v. Peterson , 717 F.2d 1409, 1415 (D.C. Cir. 1983) ).

If, however, it is unclear whether an action will "significantly affect[ ] the quality of the human environment," the federal agency "may first prepare an Environmental Assessment ("EA")." Theodore Roosevelt Conservation P'ship v. Salazar , 616 F.3d 497, 503 (D.C. Cir. 2010) (internal citations and quotation marks omitted). An EA is "essentially, a preliminary consideration of potential environmental effects in a concise public document, designed to provide sufficient evidence and analysis for determining whether an EIS is needed." Sierra Club , 803 F.3d at 37 (internal citations and quotation marks omitted). The EA must discuss the "purpose and need for the proposed action, alternatives ... and the environmental impacts of the proposed action and alternatives." 40 C.F.R. § 1501.5(c)(2). If the agency determines based on its EA that an EIS is not required, then the agency must issue a "finding of...

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