Fund for Animals v. U.S. Bureau of Land Management, 01-CV-1903 (RJL).

• Decision Date: 07 September 2004
• Docket Number: No. 01-CV-1903 (RJL).,01-CV-1903 (RJL).
• Citation: 357 F.Supp.2d 225
• Parties: FUND FOR ANIMALS, et al. Plaintiffs, v. U.S. BUREAU OF LAND MANAGEMENT, et al. Defendants.
• Court: U.S. District Court — District of Columbia

357 F.Supp.2d 225

FUND FOR ANIMALS, et al. Plaintiffs, v. U.S. BUREAU OF LAND MANAGEMENT, et al. Defendants.

No. 01-CV-1903 (RJL).

United States District Court, District of Columbia.

September 7, 2004.

Howard Mesnikoff Crystal, Meyer & Glitzenstein, Washington, DC, for Plaintiffs.

Ann D. Navaro, Kristen L. Gustafson, United States Department of Justice, Environment and Natural Resources, Paul A. Mussenden, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION & ORDER

LEON, District Judge.

The plaintiffs in this case include two nonprofit organizations dedicated to protecting animals in captivity and in the wild, including wild horses, and four individuals with interest in wild horses. Am. Compl. ¶¶ 3, 7, 12-15. They brought this lawsuit against the Department of the Interior ("DOI"), the Secretary of the Interior (the "Secretary"), the Bureau of Land Management ("BLM"), and the Director of BLM, to challenge the BLM's preparation and implementation of a "Restoration Strategy" regarding wild horses and burros ("wild horses") on public lands. Currently before the Court are plaintiffs' Motion for Summary Judgment and defendants' Cross-Motion for Summary Judgment, or in the Alternative to Dismiss. Upon consideration of the parties' motions, oral argument made by counsel, and the remaining record before the Court, the Court GRANTS the government's Motion to Dismiss for lack of subject matter jurisdiction and hereby dismisses this case with prejudice.

BACKGROUND

In 1971, Congress enacted the Wild Free Roaming Horses and Burros Act ("WHBA"), 16 U.S.C. § 1331, et seq., to protect wild horses and burros in the Western United States. Am. Compl. ¶ 28. The WHBA requires that the Secretary maintain an inventory of the wild horse population for the purpose of, inter alia, determining "whether and where an overpopulation exists and whether action should be taken to remove excess animals." 16 U.S.C. § 1333(b)(1). The methods of removal contemplated by the WHBA include natural controls on population levels (e.g., adoption and sterilization) in addition to destruction. Id. When the Secretary determines that the herds have become overpopulated,¹ she is authorized under the WHBA to remove enough of the horses so as to "restore a thriving neutral ecological balance to the range, and protect the range from the deterioration associated with overpopulation." 16 U.S.C. § 1333(b)(2); Am. Compl. ¶ 37.

The BLM, through its field offices in ten states, has responsibility for managing the wild horse and burro herds in their historical ranges, called Herd Management Areas ("HMA"). Am. Compl. ¶ 38; Def. Mot. for Summ. J. or Dismissal at 1. For some of the HMAs, BLM has identified the number of wild horses that can be sustained in a particular herd area. This figure is referred to as an Appropriate Management Level ("AML"). Am. Compl. ¶ 38. BLM determined that, by the Spring of 2000, 159 of the 192 HMAs were above their AMLs, and that as a result, the wild horses were damaging the rangelands and posing a threat to watershed health. Am. Compl. ¶ 43. In response, BLM developed a strategy to manage the wild horse and burro herds entitled "Restoration of Threatened Watersheds, Living Legends in Balance with the Land: A Strategy to Achieve Healthy Rangelands and Viable Herds" (the "Restoration Strategy" or the "Strategy"). Am. Compl. ¶ 44. The Restoration Strategy included a four-year gather and removal schedule designed to remove 12,000 wild horses in the first year across all of the HMAs, an increase from the prior year's removal. Am. Compl. ¶ 46. The Strategy also called for increased numbers of adoptions and the creation of more facilities for holding the wild horses being removed from the HMAs. Am. Compl. ¶ 47. In 2000, BLM received an initial appropriation from Congress to fund the Restoration Strategy. Am. Compl. ¶ 49.

The plaintiffs brought this suit to challenge several aspects of the Restoration Strategy. First, the plaintiffs argue that the actions taken by the government run afoul of the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321, et seq., because BLM failed to prepare an Environmental Impact Statement or an Environmental Assessment on the Restoration Strategy, or to otherwise analyze the environmental impacts of the Strategy as required by the statute.² Am. Compl. ¶¶ 50, 90. In addition, the plaintiffs argue BLM also violated NEPA by failing to consider alternatives to the Restoration Strategy or to its methods of quantifying AML. Am. Compl. ¶¶ 51-52.

Second, the plaintiffs argue that the Restoration Strategy violates the WHBA because it calls for removing wild horses to below AML, which the plaintiffs allege is a violation of the WHBA. Am. Compl. ¶¶ 48, 92. Additionally, the plaintiffs allege that BLM is reducing herd sizes to the point that they will not remain viable. Am. Compl. ¶ 93. Because neither WHBA nor NEPA provides for a private right of action, the plaintiffs bring suit under the Administrative Procedure Act ("APA"), 5 U.S.C. § 706, alleging that the government's failure to comply with WHBA and NEPA was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(a); Am. Compl. ¶¶ 89, 92.

Finally, the plaintiffs challenge the legality of six individual removals of wild horses that occurred in 2001 and one removal that was implemented in early 2002.³ Am. Compl. ¶¶ 54-76, 95-101; Def. Mot. for Summ. J. or Dismissal at 17. The relief sought by plaintiffs includes, inter alia, declarations that the defendants are violating WHBA, NEPA, and the APA and an injunction preventing the defendants from further implementing the Restoration Strategy. Am. Compl. Prayer for Relief ¶¶ 1-2. Plaintiffs do not seek any specific relief with regard to the specific gather and removal actions identified in their complaint.

The defendants argue that this Court lacks subject matter jurisdiction to review the Restoration Strategy under the APA because it is not a final agency action. Defendants further argue that this Court lacks jurisdiction to review the individual gather and removal decisions because they have already been completed and as a result are moot. For the following reasons, the Court agrees with the defendants that the claims presented by the plaintiffs are nonjusticiable and dismisses the case for lack of subject matter jurisdiction.

DISCUSSION

The APA provides for judicial review of agency actions that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."⁴ 5 U.S.C. § 706(2)(A). The plaintiffs must identify a particular "agency action" that caused them harm. "Agency action" is defined by the APA as "the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act." 5 U.S.C. § 551(13). Furthermore, the agency action must be final. 5 U.S.C. § 704. "Whether there is a final agency action is ... a jurisdictional question. With a few exceptions, if there is no final agency action, there is no basis for review of the government's decision or policy." Cobell v. Norton, 240 F.3d 1081, 1095 (D.C.Cir.2001). In determining whether a particular agency action was final, this Court must look to "whether the agency has completed its decisionmaking process, and whether the result of that process is one that will directly affect the parties." Franklin v. Mass., 505 U.S. 788, 797, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992).

The defendants argue that there has been no "`agency action,' much less a `final agency action,' within the meaning of the APA" because the BLM's Restoration Strategy is merely a "planning and budgetary framework — a vehicle used by the agency to pursue successful implementation of past and future wild horse and burro management decisions." Def. Mot. for Summ. J. or Dismissal at 19. The Restoration Strategy merely sets forth: (1) criteria for implementing gathers and removals (e.g., the age of the horses eligible for removal, provisions to train and geld wild horses that are otherwise difficult to adopt, and provisions for long-term pasturing of unadoptable wild horses); (2) a proposed removal schedule; and (3) certain funding requirements necessary to implement that schedule. Id. at 13-14. Under the Strategy, each state office then creates its own population models and decides how many wild horses need to be removed from each herd in order to manage AML assuming gathers are conducted at four-year intervals. Id. at 14-15. In short, the defendants argue that the Restoration Strategy is a generally applicable planning framework and that the state office decisions as to individual herds would be the proper final agency decisions to challenge under the APA.

The plaintiffs insist, to the contrary, that the Restoration Strategy is a final agency action susceptible to review by this Court because the Strategy is of "general ... applicability and future effect." Pl. Opp. to Def. Mot. for Summ. J. or Dismissal at 6 (citing 5 U.S.C. § 551(4)). They argue that, by its plain terms, it is binding on all of the state office HMA decisions and is properly reviewed by the Court as the final agency action governing the BLM gather and removal decisions.

The Supreme Court made clear in Lujan v. National Wildlife Federation, 497 U.S. 871, 891, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990), that the final agency action requirement of the APA bars federal jurisdiction over suits for broad programmatic relief.⁵ See also Cobell, 240 F.3d at 1095; Sierra Club v. Peterson, 228 F.3d 559, 567-70 (5th Cir.2000) (en banc), cert. denied, 532 U.S. 1051, 121 S.Ct. 2192, 149 L.Ed.2d 1024 (2001). Despite the fact that plaintiffs identify and challenge several individual gather and removal decisions,⁶ the Court concludes that what the plaintiffs are primarily seeking is exactly the type of "wholesale improvement" that Lujan proscribes. Because...