Friends of Animals v. U.S. Bureau of Land Mgmt.

• Citation: 548 F.Supp.3d 39
• Decision Date: 13 July 2021
• Docket Number: Civil Action No. 18-2029 (RDM)
• Parties: FRIENDS OF ANIMALS, Plaintiff, v. UNITED STATES BUREAU OF LAND MANAGEMENT, Defendant.
• Court: U.S. District Court — District of Columbia

548 F.Supp.3d 39

FRIENDS OF ANIMALS, Plaintiff,

v.UNITED STATES BUREAU OF LAND MANAGEMENT, Defendant.

Civil Action No. 18-2029 (RDM)

United States District Court, District of Columbia.

Signed July 13, 2021

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

Davis Aaron Backer, Lucinda J. Bach, Nicole Marie Smith, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, for Defendant.

MEMORANDUM OPINION AND ORDER

RANDOLPH D. MOSS, United States District Judge

In 2018, the Bureau of Land Management ("BLM" or "Bureau") decided to gather wild horses inside and adjacent to the Onaqui Mountain Herd Management Area ("Onaqui Mountain HMA") to reduce the number of horses to the low end of the appropriate management level ("AML") of 121–210 horses. Under that plan, the Bureau would conduct an initial gather and would then return periodically over a period of ten years to maintain AML by removing excess wild horses and administering a fertility control vaccine. The Bureau started its initial gather on September 11, 2019, and continued the gather through August 2020, but, following the gathers, the wild horse population remained more than "two times ... the specified AML." Dkt. 64-10 at 2 (Gates Decl. ¶ 4). Although the Bureau did not plan to conduct a further gather at the Onaqui Mountain HMA until 2022, it has accelerated its efforts due to the historic drought that has gripped the American West. In a typical year, the Onaqui Mountain HMA receives about 10 inches of annual precipitation; from April through June 2021, the area received less than an inch of rain, roughly five percent of typical rainfall. As a result, little-to-no vegetation has grown, and, according to the Bureau, the wild horses are facing a perilous year.

To alleviate pressure on the herd and public land in the area, the BLM plans to round up approximately 400 horses, to return approximately 100 (about half of which will receive the fertility control vaccine) to the range, and to remove about 300 permanently from the range, beginning on July 13, 2021. Dkt. 62-6 (Best Decl. Ex. 1); Dkt. 64 at 32–33; Dkt. 66. Plaintiff Friends of Animals ("FOA") seeks a preliminary injunction to block that gather, alleging violations of the Wild Free-Roaming Horses and Burros Act ("WHA" or "the Act"), 16 U.S.C. § 1331 et seq. ; the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq. ; and the Administrative Procedure Act ("APA"), 5 U.S.C. § 706. Dkt. 62. Each side contends that its approach will protect the horses and that horses will suffer (and die) unnecessarily if the opposing side prevails.

For the reasons explained below, the Court concludes that FOA has not carried its burden to justify the extraordinary relief that it seeks and will, accordingly, DENY the pending motion for a preliminary injunction.

I. BACKGROUND

A. Wild Free-Roaming Horses and Burros Act

The WHA, enacted in 1971, "declares that wild free-roaming horses and burros are living symbols of the historic and pioneer spirit of the West ... that ... contribute to the diversity of life forms within the [n]ation and enrich the lives of the American people ... as an integral part of the natural system of the public lands." 16 U.S.C. § 1331 ; see also H.R. Rep. No. 92-681, at 7 (1971). Notwithstanding the importance of these animals, however, they constitute only a fraction of the wildlife on public land, which in turn serves uses beyond the conservation of wildlife. 43 C.F.R. § 4700.0-6 ; see, e.g. , Dkt. 46-2 at 283–84 (discussing migratory birds, the greater sage-grouse, and endangered species in the Onaqui Mountain HMA); id. at 463 (listing forage distribution for livestock). The WHA, therefore, tasks the Secretary of the Interior (acting through BLM) with "manag[ing] wild free-roaming horses and burros in a manner that is designed to achieve and maintain a thriving natural ecological balance on" such lands. 16 U.S.C. § 1333(a) ; see also id. § 1332(a) (" ‘Secretary’ means the Secretary of the Interior when used in connection with public lands administered by [her] through the Bureau of Land Management.").

The legislative purpose to strike this balance—and, more importantly, to require the Secretary to strike this balance—pervades the WHA. Most notably for present purposes, the Act requires the Secretary to "maintain a current inventory of wild free-roaming horses and burros on given areas of the public lands" for the purpose of (1) setting "appropriate management levels of wild free-roaming horses and burros on these areas;" (2) determining "whether and where an overpopulation exists and whether action should be taken to remove excess animals;" and (3) deciding "whether [AMLs] should be achieved by the removal or destruction of excess animals, or other options (such as sterilization, or natural controls on population levels)." Id. § 1333(b)(1). To make these determinations, the Secretary must consult with the U.S. Fish and Wildlife Service, relevant state wildlife agencies, "such individuals independent of [f]ederal and [s]tate government as have been recommended by the National Academy of Sciences," and other individuals with "scientific expertise and special knowledge of wild horse and burro protection, wildlife management and animal husbandry as related to rangeland management." Id.

Although the statute grants the Secretary (and BLM) considerable discretion, several nondiscretionary parameters govern the removal of wild horses from the range:

Where the Secretary determines on the basis of (i) the current inventory of lands within [her] jurisdiction; (ii) information contained in any land use planning completed pursuant to [the Federal Land Policy and Management Act of 1976]; (iii) information contained in court ordered environmental impact statements ... and (iv) such additional information as becomes available to [her] from time to time, including that information developed in the research study mandated by this section, or in the absence of the information contained in (i-iv) above on the basis of all information currently available to [her], that an overpopulation exists on a given area of the public lands and that action is necessary to remove excess animals, [s]he shall immediately remove excess animals from the range so as to achieve appropriate management levels. Such action shall be taken ... until all excess animals have been removed so as to restore a thriving natural ecological balance to the range, and protect the range from the deterioration associated with overpopulation.

Id. § 1333(b)(2).

In the event the Secretary undertakes to remove wild horses from the range, she must do so through a prioritized list of methods prescribed by the WHA. First, she "shall order old, sick, or lame animals to be destroyed in the most humane manner possible." Id. § 1333(b)(2)(A). Second, if overpopulation still exists, she must "cause such number of additional excess wild free-roaming horses ... to be humanely captured and removed for private maintenance and care for which [s]he determines an adoption demand exists by qualified individuals, and for which [s]he determines [s]he can assure humane treatment and care." Id. § 1333(b)(2)(B). Finally, if overpopulation persists, "the Secretary shall cause additional excess wild free-roaming horses ... for which an adoption demand by qualified individuals does not exist to be destroyed in the most humane and cost efficient manner possible." Id. § 1333(b)(2)(C).

Pursuant to BLM regulations, the Bureau manages herds of wild horses and burros through "herd management areas" ("HMAs"). 43 C.F.R. § 4710.3-1. These HMAs are governed by broader "land use plans" ("LUPs") that set high-level goals for one or more HMAs. Id. § 4710.1; Fund for Animals, Inc. v. BLM , 460 F.3d 13, 15 (D.C. Cir. 2006). The Bureau implements LUPs through narrower activity plans called, in the case of wild horse management, "herd management area plans" ("HMAPs"), which "establish short- and long-term management and monitoring objectives for a specific ... herd and its habitat." Dkt. 46 at 279; see also 43 C.F.R. § 4710.3-1. "HMAPs also identify the actions to be taken to accomplish herd and habitat management objectives." Dkt. 46 at 279. The Bureau's Wild Horses and Burros Management Handbook ("WHA Handbook ") provides that the AML for each HMA "shall be expressed as a population range within which" wild horses and burros "can be managed for the long term." Id. at 285. "The AML upper limit shall be established as the maximum number of" horses that "results in a [thriving natural ecological balance] and avoids deterioration of the range," and the "lower limit shall normally be established at a number that allows the population to grow ... to the upper limit over a 4–5 year period, without any interim gathers to remove excess" wild horses and burros, although "[s]ome HMAs may require more frequent removals to maintain population size within AML." Id. The handbook also distinguishes between an HMAP decision setting the AML and a decision to gather and remove horses in order to "preserve or maintain a thriving ecological balance and [to] maintain a multiple use relationship." Id. at 313, 315. While the former takes effect only after a 30-day appeal period expires, the latter takes effect, for present purposes, "on a date specified in the decision," which must be 31–76 days prior to the proposed gather start date. Id. at 313, 315–16.

B. National Environmental Policy Act

A second statute, NEPA, also governs decisions to gather horses. NEPA requires federal agencies to take a "hard look" at the environmental consequences before carrying out federal actions. Marsh v. Or. Nat. Res. Council , 490 U.S. 360, 373–74, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). The statute accomplishes this by setting forth decision-making procedures that serve "twin aims": "First, [NEPA] ‘places upon an agency the obligation to consider every...