Friends of Animals v. Culver
| Decision Date | 28 June 2022 |
| Docket Number | Civil Action No. 19-3506 (CKK) |
| Citation | 610 F.Supp.3d 157 |
| Parties | FRIENDS OF ANIMALS, Plaintiff, v. Nada Wolff CULVER, in her official capacity as the Deputy Director of the United States Bureau of Land Management for Policy and Programs, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Jennifer Best, Friends of Animals, Centennial, CO, for Plaintiff.
Davis Aaron Backer, Lucinda J. Bach, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, for Defendants.
For the second time, this environmental matter is before the Court on cross-motions for summary judgment. This case concerns the United States Bureau of Land Management's ("BLM") 2019 decision to remove a number of wild horses and burros from the Twin Peaks Herd Management Area, a range located along the California-Nevada Border ("Decision"). Plaintiff, an animal-rights organization, argues that BLM's decision: (1) exceeds its discretion under its applicable enabling act, the Wild Free-Roaming Horses and Burros Act, and (2) unlawfully failed to account for and consider a number of environmental effects arising from the Decision. Because the Court agrees that the Decision exceeds statutory authority insofar as it permits removal of excess horses and burros up to ten years from its promulgation, the Court shall remand the Decision to BLM for further consideration in light of this Memorandum Opinion. However, as the Decision otherwise complies with BLM's relevant statutory obligations, the Court shall not vacate the Decision pending remand.
In sum, and upon consideration of the briefing, the relevant authorities, and the record as a whole,1 the Court will GRANT IN PART AND DENY IN PART Plaintiff's [23] Motion for Summary Judgment, GRANT IN PART AND DENY IN PART Defendants’ [24] Cross-Motion for Summary Judgment, and REMAND this matter to BLM for further consideration in light of this Memorandum Opinion.
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 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"). Id. 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, 16 (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 herd 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 "necess[ity]" 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, the agency must issue a "finding of no significant impact ("FONSI"), which "briefly presents the reasons why the proposed agency action will not have a significant impact on the human environment." Pub. Citizen , 541 U.S. at 757–58, 124 S.Ct. 2204 (internal citations omitted). "Each form of NEPA analysis—EA/FONSI or EIS—requires public notice and comment, ... and each is subject to judicial review." Sierra Club , 803 F.3d at 37–38 (citing Pub. Citizen , 541 U.S. at 763–64, 124 S.Ct. 2204 ; Grand Canyon Trust , 290 F.3d at 340–42 ).
Initially, this case involved a challenge to two BLM actions: BLM's Permanent Instruction Memorandum 2019-004 (the "2019 Instruction Memorandum") and the Decision. Friends of Animals v. Pendley , 523 F. Supp. 3d 39, 49 (D.D.C. 2021). Concluding that the 2019 Instruction Memorandum was not a "final agency action" within the meaning of the APA, the Court has since granted summary judgment in favor of Defendants on Plaintiff's APA claims, Counts VI and VII of the operative complaint. Id. at 47. Plaintiff's WHBA and NEPA claims remain as to the Decision.
The Decision, made in November 2019, approves the "phased" removal of...
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