in Def. Animals v. U.S. Dep't of the Interior, No. 12–17804.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: BEA
• Citation: 751 F.3d 1054
• Parties: IN DEFENSE OF ANIMALS; DREAMCATCHER WILD HORSE AND BURRO SANCTUARY; Barbara Clarke; Chad Hanson; Linda Hay, Plaintiffs–Appellants, v. U.S. DEPARTMENT OF the INTERIOR; Bureau of Land Management; Sally Jewell, Secretary of the U.S. Department of the Interior; Neil Kornze, Director of the Bureau of Land Management; Ken Collum, Field Manager of Eagle Lake Field Office, Defendants–Appellees, Safari Club International; Safari Club International Foundation, Intervenor–Defendants–Appellees.
• Docket Number: No. 12–17804.
• Decision Date: 12 May 2014

751 F.3d 1054

IN DEFENSE OF ANIMALS; DREAMCATCHER WILD HORSE AND BURRO SANCTUARY; Barbara Clarke; Chad Hanson; Linda Hay, Plaintiffs–Appellants,
v.
U.S. DEPARTMENT OF the INTERIOR; Bureau of Land Management; Sally Jewell,^* Secretary of the U.S. Department of the Interior; Neil Kornze,^** Director of the Bureau of Land Management; Ken Collum, ^***Field Manager of Eagle Lake Field Office, Defendants–Appellees,
Safari Club International; Safari Club International Foundation, Intervenor–Defendants–Appellees.

No. 12–17804.

United States Court of Appeals,
Ninth Circuit.

Argued and Submitted Aug. 29, 2013.
Filed May 12, 2014.

[751 F.3d 1058]

Rachel M. Fazio, Cedar Ridge, CA, for Plaintiffs–Appellants.

Ignacia S. Moreno, Assistant Attorney General; Nancy Zahedi, United States Department of the Interior, Office of Regional Solicitor; Erik E. Petersen, Ayako Sato, and Mark R. Haag, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C., for Defendants–Appellees.

Douglas Scott Burdin and Anna Seidman, Safari Club International, Washington, D.C., for Intervenor–Defendants–Appellees.

Appeal from the United States District Court for the Eastern District of California, Morrison C. England, Chief District Judge, Presiding. D.C. No. 2:10–cv–01852–MCE–DAD.
Before: MARY M. SCHROEDER, JOHNNIE B. RAWLINSON, and CARLOS T. BEA, Circuit Judges.

OPINION
BEA, Circuit Judge:

Wild horses—mustangs—and burros are part of our nation's heritage from the American West; a heritage Congress has sought to preserve. That these animals should roam the Western spaces appeals to the nature lover and historian in each of us.

But these animals eat and trample. Even in the wide open West of our nation, there is just so much forage; there are also many vulnerable cultural artifacts underfoot.

These animals also multiply. And when too many of them abound in limited land, the congressionally-appointed stewards of that land must act to protect the environment.

This case is about whether those stewards have followed Congress's rules and their own agency's regulations in acting to thin the herds of these sympathetic, even inspiring, but voracious, animals.

Plaintiffs—two non-profit organizations dedicated to protecting wild horses and burros, and members of these organizations—appeal the district court's grant of summary judgment to the United States Department of the Interior and the Bureau of Land Management (“BLM”) (collectively “Defendants”) regarding the roundup, or “gather,” of approximately 1,600 wild horses and 160 burros from the Twin Peaks Herd Management Area (“HMA”) on the California–Nevada border. Plaintiffs claim the gather violated the Wild Free–Roaming Horses and Burros Act (“the Act”) and the National Environmental Policy Act (“NEPA”). The district court found no violation of either statute. We AFFIRM.

Background

This case arises out of a roundup of wild horses and burros by the BLM. The roundup took place in August and September 2010 on the Twin Peaks HMA. In 1981, the BLM designated the Twin Peaks HMA—nearly 800,000 acres of public and private land on either side of the California–Nevada border—as suitable for the long-term maintenance of wild horses and burros. Pursuant to its authority under the Act,¹ the BLM is charged with managing the Twin Peaks HMA to “achieve and maintain a thriving natural ecological balance.” 16 U.S.C. § 1333(a). The BLM accomplishes this goal, in part, by establishing

[751 F.3d 1059]

Appropriate Management Levels (“AMLs”) for populations of both native species—including wild horses, burros, and other wildlife—and introduced animals, such as livestock (including cattle and sheep).²43 C.F.R. § 4710.3–1. The BLM removes animals from an HMA when the population exceeds the established AML. Under the Act, the BLM must remove these excess animals in the following “order and priority”: first, the BLM “shall order old, sick, or lame animals to be destroyed in the most humane manner possible”; second, the BLM “shall ... capture[ ] and remove[ ]” additional excess animals “for private maintenance,” including adoption; third, the BLM “shall ... destroy [ ]” additional excess animals.³§ 1333(b)(2).

In 1989, the BLM first set AMLs for wild horses and burros on the Twin Peaks HMA. Since then, it has adjusted these AMLs several times to address the degradation of riparian and wetland sites.⁴ At the time of the 2010 gather, the AML amount for the Twin Peaks HMA was set at 448–758 wild horses and 72–116 burros. This amount was set in 2001 and was confirmed in the 2008 Eagle Lake Resource Management Plan.

Since 1998, the population of wild horses and burros on the Twin Peaks HMA has steadily increased despite nine BLM gathers and consequent removals. In May 2010, before the challenged gather, the HMA was home to approximately 2,303 wild horses and 282 burros, or close to 300% more wild horses and 240% more burros than the permissible highest number of their respective AMLs. At that time, the BLM projected that, if left unchecked, the wild horse population on the HMA could exceed 6,000 to 8,000 within ten years. Compounding this situation, according to the BLM, wild horses were consuming three to five times as much forage as was allocated for their use. The BLM predicted that, if left unchecked, this overpopulation of wild horses and burros would cause “serious impacts to soil stability, vegetation, water sources (springs and creeks), and wildlife habitat,” and “would not allow for sufficient availability of forage and water for either wild horses or other animals.” The BLM also noted that the “increased numbers of wild horses over the past five years appear[ed] to be having a significant adverse impact [on cultural] sites.” ⁵

In May 2010, after soliciting comments from 250 sources, and based in part on the BLM's stated predictions, the BLM released a 157–page Environmental Assessment (“EA”) for its Twin Peaks HMA Wild

[751 F.3d 1060]

Horse and Burro Gather Plan (“Gather Plan”). “To reduce the impacts associated with an overpopulation of wild horses [and to] ensure that rangeland and riparian resources are capable of meeting land health standards,” the EA proposed to remove excess wild horses and burros from the HMA. The EA noted that the proposed action was “needed at this time to balance wild horse and burro populations with other resources, including wildlife habitat, wilderness study area values, cultural resources, livestock grazing, and soil and vegetation resources.”

According to the proposed action analyzed by the EA, the BLM would attempt to gather up to 2,300 wild horses and 210 burros from the Twin Peaks HMA and would then return a certain number of both animals to the HMA such that the total remaining populations were within the designated AMLs. The BLM planned to use “a helicopter drive method of capture, with occasional helicopter assisted roping from horseback” to steer the animals into “trap sites” where the animals would be held until they could be transported to temporary holding facilities on the HMA. Once in the temporary holding facilities, the BLM would feed the animals, sort them based on sex, and examine the animals' conditions before deciding whether individual animals should be euthanized because of injury or age, put up for adoption, or returned to the HMA.⁶ To curb future population increases, the released wild horses would have a 60:40 studs-to-mares (male-to-female) ratio, and the released mares would be injected with an immunocontraceptive, Porcine Zona Pellucida (“PZP”), which would reduce their fertility for two years.

The EA described the actions the BLM would take to ensure the helicopter gather process would not unnecessarily stress the animals and maintained that the capture methods, traps, holding facilities, equipment, safety procedures, and administration of PZP would comply with the BLM's Standard Operating Procedures for such gathers. The EA also provided a detailed analysis of an alternative gather plan that would not involve any fertility control measures, an alternative that would use only fertility control measures but no herd thinning or relocation, and a no-action alternative.⁷ The EA examined the potential impacts of these alternatives on the HMA's environment, looking specifically at the impact on areas of critical environmental concern, cultural resources, livestock grazing, noxious weeds and invasive species, riparian and wetland sites, soil resources, special status plants, upland vegetation, native wildlife, and wilderness study areas.

In July 2010, based on its detailed consideration in the EA, the BLM issued a “Finding of No Significant Impact” (“FONSI”) on the environment for the proposed gather from the Gather Plan, and therefore did not prepare an environmental impact statement (“EIS”).⁸ On the same day, the BLM announced that it

[751 F.3d 1061]

would implement the proposed gather and also responded to comments it had received on the EA.

Before the BLM conducted the proposed gather, Plaintiffs filed suit against the Defendants to enjoin implementation of the proposed gather. Plaintiffs alleged the proposed gather would violate the Act and the EIS-requirement of NEPA. The district court denied Plaintiffs' motion for a preliminary injunction, and Plaintiffs appealed.

After a motions panel of this court denied an emergency motion for injunctive relief pending appeal on August 10, 2010, the gather took place during August and September of 2010. The BLM ultimately gathered approximately 1,639 wild horses and 160 burros. The parties agree that post-gather, 793 wild horses and 160 burros resided on the HMA.⁹ The remaining wild horses were made available for adoption or sale, or placed in long-term holding facilities.

On August 15, 2011, this panel denied Plaintiffs' preliminary injunction appeal because the injunctive relief sought had become moot. In Defense of Animals v. U.S. Dep't of Interior, 648 F.3d 1012 (9th Cir.2011). The parties then...