Fund for Animals v. U.S. Bureau of Land Manag.

• Decision Date: 18 August 2006
• Docket Number: No. 04-5359.,04-5359.
• Citation: 460 F.3d 13
• Parties: The FUND FOR ANIMALS, INC., et al., Appellants v. U.S. BUREAU OF LAND MANAGEMENT, et al., Appellees
• Court: U.S. Court of Appeals — District of Columbia Circuit

460 F.3d 13

The FUND FOR ANIMALS, INC., et al., Appellants v. U.S. BUREAU OF LAND MANAGEMENT, et al., Appellees

No. 04-5359.

United States Court of Appeals, District of Columbia Circuit.

Argued September 26, 2005.

Decided August 18, 2006.

COPYRIGHT MATERIAL OMITTED

Appeal from the United States District Court for the District of Columbia (No. 01cv01903).

Howard M. Crystal argued the cause for appellants. With him on the briefs was Eric R. Glitzenstein.

Todd S. Aagaard, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief was Katherine J. Barton, Attorney. Andrew C. Mergen, Attorney, entered an appearance.

Before: HENDERSON, RANDOLPH, and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge RANDOLPH.

Opinion concurring in part and dissenting in part filed by Circuit Judge GRIFFITH.

RANDOLPH, Circuit Judge.

The Wild Free-Roaming Horses and Burros Act, 16 U.S.C. §§ 1331-1340, directs the Secretary of the Interior to "protect and manage wild free-roaming horses and burros as components of the public lands." Id. § 1333(a). The Fund for Animals and others challenge the Bureau of Land Management's "strategy" for achieving this statutory goal.

I.

The Bureau of Land Management ("BLM" or the "Bureau") "manage[s] the public lands under principles of multiple use and sustained yield." 43 U.S.C. § 1732(a). Since 1971, this responsibility has included oversight and management of wild horses and burros on public lands. Congress passed the Wild Free-Roaming Horses and Burros Act, Pub.L. No. 92-195, 85 Stat. 649 (1971) (the "Act" or the "Wild Horses and Burros Act"), to protect those animals from "capture, branding, harassment, or death." 16 U.S.C. § 1331; see also Kleppe v. New Mexico, 426 U.S. 529, 535-36, 96 S.Ct. 2285, 49 L.Ed.2d 34 (1976) (citing legislative history). The Act grants the Secretary of the Interior jurisdiction over all wild free-roaming horses and burros on federal lands and directs the Secretary 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." 16 U.S.C. § 1333(a). The Bureau (as the Secretary's delegate) carries out this function in localized "herd management areas" ("HMAs"), 16 U.S.C. § 1332(c); 43 C.F.R. § 4710.3-1, established in accordance with broader land use plans. Id. § 4710.1. There are currently 210 herd management areas in ten western states. Responsibility for a particular herd management area rests with the Bureau's local field and state offices.

In each herd management area, the Bureau determines an "appropriate management level" ("AML") for the wild horse and burro populations. 16 U.S.C. § 1333(b)(1). The Bureau describes the appropriate management level 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." Local Bureau offices have significant discretion to determine their own methods of computing AML for the herds they manage. Some treat it as the midpoint of a sustainable range, while others treat it as a single number.

When the Bureau determines "that an overpopulation exists on a given area of the public lands and that action is necessary to remove excess animals," the Wild Horses and Burros Act requires it "immediately [to] remove excess animals from the range so as to achieve appropriate management levels." 16 U.S.C. § 1333(b)(2).¹ Before taking such action, the Bureau prepares a detailed "gather" plan, including an environmental assessment in compliance with the National Environmental Policy Act. Gather decisions are subject to administrative appeal. 43 C.F.R. § 4770.3; id. pt. 4.

In early 1999, the Bureau recognized that a population explosion among wild horses and burros had rendered it incapable of achieving its statutory goals at then-current funding levels. The nationwide wild horse and burro population was at least 46,000 animals or approximately 19,500 animals above nationwide AML. In the face of "mounting distrust and discontent with the BLM's management of the Wild Horse and Burro Program," the Bureau developed a strategy to achieve nationwide AML and justify increased funding for the program. After soliciting advice from state Bureau offices about their specific needs and reviewing several options, the national office settled on a plan that would, if implemented, achieve nationwide AML in five years at a cost of an additional $9 million per fiscal year from 2001 through 2005.

This plan was presented to Congress in February 2000 as a Presidential Budget Initiative. Entitled "The `Restoration of Threatened Watersheds' Initiative" and subtitled "Living Legends in Balance with the Land: A Strategy to Achieve Healthy Rangelands and Viable Herds," the five-page document informed Congress that "[o]ne of the major threats to watershed health is an overabundance of wild horses and burros on rangelands" and that "at current funding capability and adoption demand" the populations of these animals "will increase at a rate faster than our ability to remove excess animals." The Bureau explained that the additional appropriation would enable the field offices to meet removal targets based on an initial four-year gather schedule. This would result in a large number of removals in the early years of implementation and a gradual decline to maintenance levels. The plan also contemplated eliminating age restrictions on removals,² enhanced marketing of animals and adoption events, and an expanded program of training and gelding for difficult-to-adopt animals.

Congress approved the needed funding for the program and the various field offices began implementing individual gathers on a herd-by-herd basis. The field offices used a common population model to determine how many animals to remove based on an initial four-year gather schedule. This number was just a starting point. The final determinations concerning the number of animals to remove and the timing of such removals was left to the field offices to determine based on the particular characteristics of each herd and geography.

In September 2001, the Fund for Animals, the Animal Legal Defense Fund, and others (collectively the "Fund for Animals" or the "Fund") filed suit in the district court to enjoin the Bureau from continuing to implement the strategy. The complaint alleged that the Bureau violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4347, by implementing the strategy without first preparing an environmental impact statement, Am. Compl. ¶¶ 89-91, and that the Bureau violated the Wild Horses and Burros Act by adopting a strategy that would reduce herd populations to below their appropriate management levels. Id. ¶¶ 92-94.³ The complaint also objected to seven specific gathers of wild horses and burros carried out after Congress appropriated the funds. Id. ¶¶ 95-102.

In February 2002, while the complaint was pending, an assistant director of the Bureau issued an "Instruction Memorandum" to the field offices "to communicate guidance and policy" regarding how the Bureau would achieve AML in herd management areas by 2005. The memorandum included a chart containing an "estimate" for each state of the number of horses to be removed; stated that horses five years and younger would be removed first, those ten years and older next, followed by horses six to nine years of age; and outlined the data field offices must collect on each herd in order to prepare "Population Management Plans," which "will detail the population objectives for the herd(s) and the rationale for those objectives." The instruction memorandum stated that it would be "effective for all gathers beginning upon receipt and will expire on September 30, 2003." The Bureau's Manual specifies that instruction memoranda "are of a short-term, temporary nature" and are "in effect for a short period of time." The February 2002 memorandum explained that the Bureau's policy regarding the removal of wild horses is "reviewed and revised each year in an effort to balance the need to achieve AML, minimize the time excess animals are held in BLM facilities awaiting adoption and enhance our ability to place those animals into private maintenance and care."

After the Instruction Memorandum issued, the Fund filed a "Supplemental Complaint" alleging that before the memorandum became effective the Bureau was bound to issue an environmental impact statement or an environmental assessment. The supplemental complaint sought a preliminary and permanent injunction ordering the Bureau not to take any steps to implement the memorandum and directing it to prepare an environmental impact statement pursuant to NEPA.

Insofar as the action dealt with the strategy, the district court dismissed for lack of subject matter jurisdiction, finding that the strategy was not a reviewable "final agency action." Fund for Animals v. Bureau of Land Mgmt., 357 F.Supp.2d 225, 229 (D.D.C.2004). As to the specific removal actions, the district court found that the Fund's challenges were moot. Id. at 230.

II.

The Fund takes exception to several of the Bureau's policies for carrying out its wild horse and burro management duties. The federal courts are not authorized to review agency policy choices in the abstract. In the absence of a specific statutory review provision—neither the Wild Horses and Burros Act nor NEPA contains one—the Administrative Procedure Act provides a generic cause of action to "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action." 5 U.S.C. § 702 (emphasis added). Review under the APA is further limited to "final agency action for which there is no other adequate remedy in a court." Id. § 704 (emphasis added). Whether there has been "agency...