Leigh v. Raby

• Decision Date: 28 January 2022
• Docket Number: 3:22-cv-00034-MMD-CLB
• Parties: LAURA LEIGH, et al., Plaintiffs, v. JON RABY, et al., Defendants.
• Court: U.S. District Court — District of Nevada

LAURA LEIGH, et al., Plaintiffs,
v.
JON RABY, et al., Defendants.

No. 3:22-cv-00034-MMD-CLB

United States District Court, D. Nevada

January 28, 2022

ORDER

MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE

I. SUMMARY

This action arises from a U.S. Bureau of Land Management gather of wild horses in eastern Nevada. Plaintiffs Laura Leigh, Wild Horse Education, Animal Wellness Action, and CANA Foundation have filed a motion for temporary restraining order and preliminary injunction to stop the gather (ECF Nos. 4, 6 (“Motion”)), ^[1] arguing that the government's actions violated the Wild Free-Roaming Horses and Burros Act (“Wild Horse Act”), 16 U.S.C. § 1331, et seq., and the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. § 432, et seq., and must be enjoined pending compliance. Plaintiffs further argue that the government has infringed their First Amendment right to observe the gather by unlawfully obstructing their access.^[2] Because the Court finds Plaintiffs are unlikely to

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succeed on the merits of their claims and that the balance of equities and the public interest weigh against enjoining the Gather, the Court will deny the Motion.

II. BACKGROUND

On January 11, 2022, the U.S. Bureau of Land Management initiated a gather of wild horses on the Pancake Complex in eastern Nevada (the “Gather” or “2022 Gather”). (ECF No. 4 at 10.) Plaintiffs are three non-profits and one individual who work to protect wild horses and Defendants are the U.S. Department of Interior, the Bureau of Land Management (“BLM”), and Nevada BLM Director Jon Raby.

A. The Pancake Complex Herds

The Pancake Complex is an area west-southwest of Ely, Nevada. (Exh. B, ECF No. 4-2 at 16.) It consists of two Herd Management Areas (“HMAs”), one Herd Area (“HA”), and one Wild Horse Territory. (ECF No. 18 at 5.) Before the beginning of the 2022 Gather, the population estimate for the entire Pancake Complex was 3, 244 wild horses. (ECF No. 18-1 at 3.) This number is far in excess of the established cumulative appropriate management level (“AML”) range for the Pancake Complex, which is only 361-638 wild horses. (Exh. B, ECF No. 4-2 at 17; ECF No. 18-1 at 3.) The Pancake Complex AML range was established in 2008 through the decision-making process of the Ely District Resource Management Plan (“RMP”). (Exh. B, ECF No. 4-2 at 17.)

The BLM reports that conditions on the Pancake Complex are dire. The birth rate of foals is substantially down, which the BLM attributes to lack of resources mares need to feed. (ECF No. 18-1 at 3.) Horses observed in the area in the past two weeks have shown extremely low “body condition scores, ” indicating poor health. (Id.) Severe drought from the past two years has deprived the area of needed water and forage, for horses and other animals on the range alike. (Id. at 2; Exh. 3, ECF No. 18-2 at 11-12; Exh. 5, ECF No. 18-2 at 2.) As a result of these conditions, the BLM conducted an emergency horse gather in 2020. (ECF No. 18-1 at 2.) The BLM predicts that without another gather, “[w]ild horse populations would remain over appropriate management levels[, ] [t]he impacts to vegetation by grazing or trampling would increase more exponentially[, ] . . .

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[o]ver time forage resources would become less available, impacting wild horse herd health, and wild horses would be more susceptible to disease and drought.” (Exh. B, ECF No. 4-2 at 65.) Due to ongoing drought conditions and animals leaving the Pancake Complex in search of better conditions, a wild horse gather has become “an Ely District priority.” (ECF No. 18-1 at 2.)

B. The Environmental Assessment

The BLM published its final Environmental Assessment (“EA”) of the planned Pancake Complex Wild Horse Gather on May 5, 2021. (Exh. B, ECF No. 4-2 at 13-208.) The EA included a description of the BLM's intended action, or “Proposed Action, ” justifications for the Proposed Action, and considered alternatives. (Id.) Per the EA, the BLM's Proposed Action is:

Over a 10 year period, use phased gathers to removed excess animals in order to achieve and maintain the population within AML range, apply fertility control methods (vaccines and/or IUDs) to released mares, maintain a sex ratio adjustment of 60% male and 40% female, and release a small non-reproducing component of males (up to 138 geldings) that brings the population to mid-AML

(Id. at 22.) The stated purpose of the Proposed Action “is to gather and remove excess wild horses from within and outside the Pancake Complex and reduce the wild horse growth rates to achieve and maintain established AML ranges.” (Id. at 19.) More specifically, the Proposed Action “would be to gather and remove approximately 2, 342 excess wild horses within the Complex to achieve and maintain AML and administer or booster population control measures to gathered and released horses over a period of ten years from the initial gather.” (Id. at 22.) Such action would ostensibly meet the BLM's goal of “attaining a herd size that is at the low range of AML, reducing population growth rates, and achieving a thriving natural ecological balance on the range.” (Id.) Because “[i]t is expected that gather efficiencies and holding space during the initial gather would not allow for the removal of sufficient excess animals during the initial gather to reach or maintain low AML, ” the BLM anticipated needing to conduct “follow-up gathers” “on a periodic basis.” (Id. at 22-23.)

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C. Plaintiffs' Challenge and Agency Review

Plaintiff Leigh (as an individual and as president of Wild Horse Education) submitted comments on the preliminary EA draft on November 23, 2020. (Exh. A, ECF No. 4-2 at 6-10.) Specifically, Leigh objected to the BLM's combination of proposed gather plans and broader BLM goals of herd population management. (Id. at 7.) Leigh argued that if the BLM sought to enact broader goals, they should develop a Herd Management Area Plan (“HMAP”). (Id.) Leigh also argued that the preliminary EA relied on data from the 2008 Ely District RMP, which she claimed is now outdated and lacks in-depth area analysis. (Id.)

The BLM noted that it received and considered over 3, 600 public comments before issuing the final EA.^[3] (Exh. B, ECF No. 4-2 at 73.) These comments and the BLM's responses were summarized in Appendix XIII of the final EA. (Id. at 169-207.) Twelve of the comments were expressly attributed to Leigh, including comments arguing that the EA was an improper form to proceed with a gather plan absent an HMAP and that the data relied on in the EA was out of date. (Id. at 173-176, 182-184, 202.) The Bristlecone and Tonopah BLM Field Office Managers reviewed the final EA and issued a Finding Of No. Significant Impact (“FONSI”) on May 4, 2021. (Exh. D, ECF No. 4-2 at 216-218.)

After the final EA was issued, Plaintiffs appealed its adoption with the United States Interior Board of Land Appeals (“IBLA”) and petitioned for a stay of the EA's implementation pending review. (Exh. E, ECF No. 4-2 at 220-231.) The IBLA denied Plaintiffs' petition for stay on July 7, 2021. (ECF No. 4 at 10.)

The Gather was publicly announced on January 6, 2022. (ECF No. 4 at 10.) Plaintiffs filed a motion to reconsider the denial of the stay with the IBLA on January 10, 2022, citing changed circumstances. (Id.) The IBLA denied Plaintiffs' reconsideration motion on January 14, 2022, after the Gather had begun. (Id.)

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D. The Gather

The 2022 Gather that began on January 11, 2022, is ongoing today. As of January 24, the BLM had gathered 987 and shipped 917 wild horses. (ECF No. 18-1.) The target number of removed horses for the 2022 Gather is 2, 030, or 63% of the estimated current population. (Id. at 3.) If the BLM succeeds at removing their 2022 Gather target, there would still be approximately 1, 214 wild horses in the Pancake Complex. (Id.) In other words, even assuming an effective 2022 Gather, the number of horses in the Pancake Complex would be almost double the high-end of the established AML, and more than triple its low-end.

There have already been incidents of injury and death during the Gather. Collette Kaluza, a volunteer for Plaintiff Wild Horse Education, observed the first day of the Gather. (ECF No. 4-1 at 2.) While the BLM pursued a band of horses with a low-flying helicopter, Kaluza observed that three horses had fallen behind the group. (Id.) One of the horses, a colt, was limping, and Kaluza reports that it appeared the colt had broken its leg. (Id. at 3.) The colt continued to struggle while the helicopter drove the band of horses into the holding pens. (Id.) Kaluza timed the duration of the process and reports that it took 29 minutes for BLM personnel to arrive at the range and another 30 minutes to rope the colt and put it in the trailer. (Id.) BLM Wild Horse and Burro Specialist Benjamin Noyes submitted a declaration in which he states that as of January 24, a total of 11 horses had died during the Gather. (ECF No. 18-1 at 3.) Of those 11 deaths, three were “acute, ” or directly attributable to the Gather, and 8 were euthanized due to preexisting conditions. (Id.) Noyes reports that the death rate for this Gather (1% overall and 0.3% acute) is within the expected mortality rate for BLM horse gathers (1.1%). (Id. at 3-4; Exh. 7, ECF No. 18-3 at 12-13.)

Kaluza observed that the ground was very muddy and slippery during the Gather. (ECF No. 4-1 at 3.) She attributes these conditions to the changing daily temperatures, in which the ground freezes overnight and thaws during the day. (Id.) The ground was difficult for Kaluza to walk, drive, or move on as she observed the Gather, and she reports

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witnessing several horses struggling to run. (Id.) Despite these conditions, the BLM has not stopped operations. (Id.) Noyes confirms that the conditions in this area are variable, but states that the horses are used to them and regularly run across the valleys up to 10-15 miles per...