In Defense of Animals v. Salazar

• Decision Date: 23 December 2009
• Docket Number: Civil Action No. 09-2222 (PLF).
• Citation: 675 F.Supp.2d 89
• Parties: IN DEFENSE OF ANIMALS, et al., Plaintiffs, v. Ken SALAZAR, et al., Defendants.
• Court: U.S. District Court — District of Columbia

675 F.Supp.2d 89

IN DEFENSE OF ANIMALS, et al., Plaintiffs, v. Ken SALAZAR, et al., Defendants.

Civil Action No. 09-2222 (PLF).

United States District Court, District of Columbia.

December 23, 2009.

COPYRIGHT MATERIAL OMITTED

William James Spriggs, Buchanan Ingersoll & Rooney, PC, Washington, DC, for Plaintiffs.

John B. Grosko, U.S. Department of Justice, Environment and Natural Resource, Washington, DC, for Defendants.

OPINION

PAUL L. FRIEDMAN, District Judge.

Plaintiffs, In Defense of Animals, Craig C. Downer, and Terri Farley, move for a preliminary injunction that would bar the defendants, Secretary of the Interior Ken Salazar and various administrators and employees of the Interior Department's Bureau of Land Management ("BLM"), from implementing a plan to capture or gather approximately 2,700 wild horses located in western Nevada ("gather plan"). The plaintiffs contend that the gather plan must be set aside pursuant to the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq., because BLM lacks the statutory authority to carry out the actions proposed, and because those actions contravene the terms of the Wild Free-Roaming Horses and Burros Act ("Wild Horse Act"), 16 U.S.C. §§ 1331 et seq. The Court heard oral argument on December 16, 2009. Upon consideration of the relevant legal authorities, the parties' arguments, and the entire record in this case, the Court will deny the plaintiffs' motion.¹

I. FACTS

According to BLM, approximately 3,040 wild horses currently inhabit the Calico Mountains Complex ("Complex"), a 550,000 acre expanse of land located in Nevada's Humboldt and Washoe counties. EA at 1. A mix of government-owned and privately-held tracts of land, the Complex includes mountainous and desert regions and is home to a variety of wildlife species, including coyotes, mule deer, and pronghorn antelope. Id. at 45. BLM also allows several private entities to graze herds of domestic cattle on public lands in the area. Id. at 29.

In 1982 BLM established a "multiple use balance between livestock, wild horses, and wildlife" in the Complex, allocating a certain amount of available forage resources in the area to wild horses and earmarking the rest for other uses. EA at 2. Based on that initial assessment, the agency set target population levels for wild horses in the Complex in the early 1990s and then, in subsequent years, adjusted those levels intermittently in response to, among other factors, reassessments of available resources in the Complex. Id. According to BLM, these target population levels— known as "appropriate management levels" or "AMLs," id. at 1—represent the maximum number of wild horses that may inhabit the Complex without threatening the area's "thriving natural ecological balance and multiple-use" character. Id. at 2. Currently, the AML for wild horses in the Complex is between 572 and 952 horses. Id. at 3.

The 3,040 horses currently estimated to live within the Complex exceed the minimum AML of 572 by 2,468, and the maximum AML of 952 by 2,088. To bring the horse population below the maximum AML, BLM has developed a plan to capture most of the Complex's horses and take them from the range. EA at 4. Under this gather plan, BLM will use helicopters to herd up to 2,736 wild horses into temporary corrals located within or just outside the Complex. EA at 13; Transcript of Oral Argument, Dec. 16, 2009 ("Trans.") at 34. The horses then will be transported to a larger temporary holding facility nearby. Trans. at 33. If the total number of horses captured by BLM exceeds 2,432, then a fraction of the horses— up to 268—will be released back into the Complex. EA at 13. To minimize population growth, BLM will choose the group of horses to be released so that its composition is sixty percent male, and will also treat mares to be released with a contraceptive vaccination. Id.

Of those horses that are not released, any with "[c]onditions requiring humane euthanasia"—old, sick, or lame horses— will be destroyed after examination by a veterinarian. EA at 12. All remaining horses will "be transported to BLM facilities for adoption, sale, or long-term holding." Id. BLM's long-term holding facilities are located in Kansas, Oklahoma, and South Dakota. Reply at 7.²

BLM's Preliminary Environmental Assessment, which outlined the proposed gather plan, was released on October 23, 2009. Believing that implementation of the gather plan was "to begin directly on December 1, 2009," see Compl. ¶ 3, plaintiffs filed this suit on November 23, 2009, and their motion for a preliminary injunction two days later. BLM, however, decided to delay the initiation of the gather process. Opp. at 13. The Bureau's Final Environmental Assessment, Decision Record, and Finding of No Significant Impact ("FONSI") were issued on December 8 2009. Opp., Ex. B (FONSI) at 4; Opp., Ex. C (Decision Record) at 17. Plaintiffs filed an amended complaint on December 14, 2009. The gathering of horses from the Complex is now scheduled to begin on December 28, 2009. Am. Compl. ¶ 4.

II. RELEVANT LEGAL STANDARDS

A. Preliminary Injunction Factors

A preliminary injunction is "an extraordinary remedy that should be granted only when the [parties] seeking the relief, by a clear showing, carr[y] the burden of persuasion." Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C.Cir.2006) (quoting Cobell v. Norton, 391 F.3d 251, 258 (D.C.Cir.2004)) (internal quotation marks omitted). To warrant preliminary injunctive relief, the moving parties must show: (1) that there is a substantial likelihood that they will succeed on the merits of their claim, (2) that they will suffer irreparable injury in the absence of an injunction, (3) that an injunction would not substantially harm the defendants or other interested parties (balance of harms), and (4) that the public interest would be furthered, or at least not adversely affected, by the injunction. See id.; Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1291 (D.C.Cir.2009); Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1317-18 (D.C.Cir.1998).

Plaintiffs are not required to prevail on each of these factors. Rather, these factors must be viewed as a continuum, with more of one factor compensating for less of another. Davis v. Pension Benefit Guar. Corp., 571 F.3d at 1291-92. "If the arguments for one factor are particularly strong, an injunction may issue even if the arguments in other areas are rather weak." CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C.Cir.1995). An injunction may be justified "where there is a particularly strong likelihood of success on the merits even if there is a relatively slight showing of irreparable injury." Id. Conversely, when the other three factors strongly favor interim relief, a court may grant injunctive relief when the moving party has merely made out a "substantial" case on the merits. The necessary level or degree of likelihood of success that must be shown will vary according to the Court's assessment of the other factors. Washington Metro. Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 843-45 (D.C.Cir.1977). An injunction may be issued "with either a high probability of success and some injury, or vice versa." Cuomo v. U.S. Nuclear Regulatory Comm'n, 772 F.2d 972, 974 (D.C.Cir.1985). "Despite this flexibility," however, "a movant must demonstrate at least some injury for a preliminary injunction to issue," and "a failure to show any irreparable harm" constitutes grounds for denying the motion for a preliminary injunction, "even if the other three factors entering the calculus merit such relief." Chaplaincy of Full Gospel Churches v. England, 454 F.3d at 297 (quoting CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C.Cir.1995) (internal quotation marks omitted), and citing Sea Containers Ltd. v. Stena AB, 890 F.2d 1205, 1210-11 (D.C.Cir.1989)) (emphasis added).

B. The Administrative Procedure Act

Under the Administrative Procedure Act, a reviewing court must hold unlawful and set aside "final agency action[s]" that are "not in accordance with law" or "in excess of statutory jurisdiction, authority, or limitations, or short of statutory right." 5 U.S.C. § 706(2)(A), (C); see id. § 704. Plaintiffs argue that BLM lacks statutory authority under the Wild Horse Act to institute the proposed gather plan and that the plan therefore must be set aside under the APA.³

When, as here, the action under review involves an agency's interpretation of a statute that the agency is charged with administering, courts apply the familiar analytical framework set forth in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). "Under step one of Chevron, [the court] ask[s] whether Congress has directly spoken to the precise question at issue, in which case [the court] must give effect to the unambiguously expressed intent of Congress." Secretary of Labor, Mine Safety and Health Admin. v. Nat'l Cement Co. of California, Inc., 494 F.3d 1066, 1073 (D.C.Cir.2007) (internal quotation marks and citation omitted); see also Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. at 842-43, 104 S.Ct. 2778. If, after employing the traditional tools of statutory construction, the court concludes that "the statute is silent or ambiguous with respect to the specific issue ..., [the court] move[s] to the second step and defer[s] to the agency's interpretation as long as it is `based on a permissible construction of the statute.'" Secretary of Labor, Mine Safety and Health Admin. v. Nat'l Cement Co. of California, Inc., 494 F.3d at 1074 (quoting Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. at 843, 104 S.Ct. 2778).

C. The Wild Horse Act

The Wild Horse Act places "[a]ll wild free-roaming horses and burros ... under the jurisdiction of the Secretary for the purpose of management and protection in...