In Defense of Animals et al v. United States Department of the Interior et al

Filing 121

MEMORANDU and ORDER signed by Chief Judge Morrison C. England, Jr on 11/15/12; DENYING 104 Motion for Summary Judgment; GRANTING 109 and 111 Cross Motions for Summary Judgment. The Clerk of Court is DIRECTED to enter judgment accordingly and to close this file. (Meuleman, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 IN DEFENSE OF ANIMALS; DREAMCATCHER WILD HORSE AND BURRO SANCTUARY; BARBARA CLARKE; CHAD HANSON; LINDA HAY, 14 15 16 No. 2:10-cv-01852-MCE-DAD Plaintiffs, v. MEMORANDUM AND ORDER 20 UNITED STATES DEPARTMENT OF THE INTERIOR; BUREAU OF LAND MANAGEMENT; KEN SALAZAR, Secretary of the United States Department of the Interior; ROBERT ABBEY, Director of the Bureau of Land Management; KEN COLLUM, Acting Field Manager of Eagle Lake Field Office, 21 Defendants. 17 18 19 22 23 ----oo0oo---Plaintiffs in this action, which consist of an animal rights 24 group along with a wild horse and burro sanctuary and other 25 concerned individuals, filed this action on July 15, 2010, to 26 halt a planned “gather,” or round-up, of wild horses and burros 27 scheduled to commence on August 9, 2010, at the Twin Peaks Herd 28 Management Area (“HMA”). 1 1 Plaintiffs argued that the planned gather ran counter to the 2 congressional mandate for preserving wild horses and burros as 3 set forth in Wild Free-Roaming Horses and Burros Act, 16 U.S.C. 4 § 1331, et seq. (“Act”). 5 provisions of the National Environmental Policy Act (“NEPA”) had 6 been violated because the Environmental Assessment (“EA”) for the 7 gather failed to adequately analyze a reasonable range of 8 alternatives, failed to ensure scientific integrity and 9 dissenting opinion, and consequently failed to take the requisite Plaintiffs also contended that the 10 “hard look” at the proposed action for NEPA purposes. 11 the cumulative impacts occasioned by the gather and its 12 unprecedented scope, Plaintiffs asked that the Court require the 13 preparation of a comprehensive Environmental Impact Statement 14 (“EIS”) before moving forward with the gather. 15 Because of Plaintiffs initially moved for preliminary injunctive relief 16 on July 22, 2010 given the impending August 9, 2010, gather. 17 Following the August 5, 2010, hearing on the Motion, the Court 18 denied Plaintiffs request from the bench on grounds, inter alia, 19 that Plaintiffs were not likely to prevail on the merits. 20 ruling was followed by a Memorandum and Order filed August 9, 21 2010. 22 appeal. 23 denied by the Ninth Circuit, and the gather proceeded. 24 Plaintiffs’ appeal was ultimately denied by the appeals panel on 25 August 15, 2011, on grounds that because the gather had already 26 occurred, the injunctive relief sought had become moot. That Plaintiffs immediately filed a notice of interlocutory Plaintiffs’ request for emergency injunctive relief was 27 Defendants thereafter filed a motion to dismiss in this 28 court, requesting that the entire lawsuit be thrown out as moot. 2 1 Because Plaintiff’s complaint raised issues that remained 2 justiciable, particularly since they could potentially resurface 3 in future gathers, the Court denied the motion to dismiss by 4 Memorandum and Order filed April 20, 2011. 5 government and Defendant-Intervenor Safari Club International 6 (“Safari Club”) have now filed motions for summary judgment. 7 parties agreed at the time of oral argument on those motions that 8 the case should be resolved on summary judgment. 9 Both Plaintiffs, the The As set forth below, the Court will grant the summary 10 judgment requests made on behalf of the government and the Safari 11 Club and will deny Plaintiff’s concurrent request for summary 12 judgment. 13 track the arguments already made in connection with the earlier 14 filed motion to dismiss, this Memorandum and Order closely 15 follows the Court’s previous April 20, 2011 ruling. Because the argument proffered by the parties closely 16 BACKGROUND 17 18 19 The Twin Peaks HMA comprises some 789,852 acres of public 20 and private lands on either side of the border between California 21 and Nevada. 22 south, and 35 miles wide, slightly more than half of the HMA is 23 located within Lassen County, California. 24 Washoe County, Nevada. 25 designated the Twin Peaks HMA as suitable for the long-term 26 maintenance of wild horses and burros in 1981. 27 Management Framework Plan established a multiple use balance 28 between livestock, wild horses and wildlife in 1982. AR 15443. Approximately 55 miles long from north to The remainder is in The Bureau of Land Management (“BLM”) 3 The Cal Neva 1 The BLM’s stewardship of public lands, including the oversight 2 and management of wildhorses and burros, is predicated on 3 principles of multiple use and sustained yield. 4 43 U.S.C. § 173; see also AR 15450. 5 AR 15443, citing This case arises from the Bureau’s decision, in 2010, to 6 remove excess horses and burros from the Twin Peaks HMA. A 158- 7 page Final Environmental Assessment for the Twin Peaks Herd 8 Management Area Wild Horse and Burro Gather Plan (“Gather EA”) 9 was released in May of 2010, and a Finding of No Significant 10 Impact (“FONSI”) was thereafter issued in July of 2010. 11 15439, 15741, 15737. 12 to restore a thriving ecological balance and to prevent further 13 degradation of habitat caused by an overpopulation of wild 14 horses. 15 a year of study, as aided by a 30-day scoping period as well as a 16 30-day period for public comment followed by a public meetings 17 and a field tour. 18 received more than 2,000 comments during this process and 19 published in its decisions both a summary by subject matter as 20 well as responses in each category. 21 AR 15442. AR BLM’s goal in proposing the Gather EA was The EA represented the culmination of nearly AR 15550, 15746-47, 15750-51. The BLM AR 15746-47, 15750-83. The population of wild horses and burros within the HMA has 22 increased sharply since the first aerial population inventory was 23 conducted in 1973. 24 recorded. 25 approximately 3,000 horses. 26 predators and are a long-lived species, and since documented foal 27 survival rates exceed 95 percent, their population levels rise 28 quickly. At that time, 835 horses and 104 burros were By 1977, the population was estimated to be at Because wild horses have few natural 4 1 Even though nine gathers within the Twin Peaks HMA have taken 2 place since 1998, the estimated horse population has nonetheless 3 almost doubled since 2004. 4 rose from 74 to more than 280 animals. During the same period, burro numbers 5 A direct count aerial population inventory taken in 6 September of 2008 revealed some 1,599 horses and 210 burros. 7 the time the EA at issue in these proceedings was prepared in 8 July of 2010, the current population was estimated to be 2,303 9 horses and 282 burros, based on a twenty percent horse foal crop AR 15472. At 10 per year and a sixteen percent burro foal yield. This 11 was close to 4.5 times more wild horses and 4 times more burros 12 than the low range of the appropriate management level. 13 AR 15448. 14 been determined as constituting between 448 and 758 wild horses, 15 and 72 and 116 burros, as established through prior agency 16 decision, including the applicable resource management plan.1 17 See Court’s August 9, 2010 previous Memorandum and Order denying 18 preliminary injunction, ECF No. 53: 13-15. 19 ensure a thriving natural ecological balance consistent with 20 multiple use objectives for the HMA. 21 to wild horses and burros, the AML is defined as the number of 22 animals within an HMA which achieves and maintains a thriving 23 natural ecological balance. 24 animals from the HMA, or take other remediation measures as 25 necessary, when population numbers exceed the established AML. (“AML”). The AML range for the Twin Peaks area had previously AMLs are designed to AR 15445. Specifically, with respect The BLM strives to remove 26 27 28 1 The BLM last revised the applicable resource management plan (“RMP”) in 2008, after more than four years of public input and analysis. See AR 15448, 3867-69. 5 1 Absent a gather of excess animals, the Bureau estimated that 2 in ten years, given similar growth predictions utilizing a median 3 rate of approximately 23 percent, the wild horse population would 4 exceed 6,000 to 8,000 head. 5 indicated that figure could increase to as much as 19,264 head, 6 depending on what variables were used. 7 the BLM, such population increases would cause serious 8 degradation of the range’s soils, vegetation, water sources, 9 riparian areas, cultural resources and wildlife habitat. AR 15532. Population modeling AR 15523. According to AR 10 15532, 15536-37, 15540-42; 15545, 15547-48. Moreover, even aside 11 from the potential environmental degradation caused by too many 12 animals, the Bureau went on to predict that once the habitat 13 could no longer support such anticipated population growth, the 14 horses would likely “crash” and experience a “substantial death 15 loss.” AR 15532, 15534. 16 Since the EA was prepared, an in preparation for the 17 anticipated gather of excess horses and burros to begin on 18 August 9, 2010, the BLM conducted another aerial population 19 inventory on July 26, 2010. 20 2,236 wild horses and 205 burros, numbers slightly less, but not 21 appreciably lower, than the projected figures, particularly with 22 respect to the horses. 23 That inventory yielded a count of Based on the above numbers, the EA estimated, “based on an 24 aerial direct count population inventory,” that there were some 25 1,855 horses in excess of the AML lower limit in 2010, as well as 26 205 excess wild burros. 27 /// 28 /// 6 1 Compounding the situation, according to the BLM, is the fact that 2 wild horses exceed the forage allocated to their use by 3 to 5 3 times, since they graze constantly throughout the year. 4 Livestock, on the other hand, which are moved from place to 5 place, average only some 59 percent for cattle and 32 percent for 6 sheep of their allocated usage. 7 water sources and vegetation) still remain fairly good, the BLM 8 believes that decreasing the numbers of horses and burros is 9 essential to avoid unduly depleting available resources in the 10 long run, especially since their numbers increase so rapidly if 11 left unchecked. 12 While range conditions (both In order to trim current horse and burro populations to 13 appropriate levels, the BLM proposed that an attempt be made to 14 gather the entire population of horses and burros within the HMA. 15 As indicated above, on July 8, 2010, after preparing its EA, a 16 FONSI was issued with respect to another gather of excess 17 animals. 18 2010. 19 The present lawsuit was thereafter filed on July 15, Since previous gathers have typically rounded up only 80 to 20 90 percent of the animals, depending on the numbers actually 21 retrieved, the EA estimated that about 180 horses will be 22 released after the gather, leaving a total of some 450 horses and 23 72 burros in the HMA post-gather. 24 consistent with the established AMLs. 25 /// 26 /// 27 /// 28 /// 7 AR 15542. Those numbers are 1 The released horses would have a sex ratio of 60:40 studs to 2 mares in order to help curb future population increases (AR 3 14457); in addition, some or all of the released mares (depending 4 on the capture rates) would receive fertility control treatments 5 (an immunocontraceptive known as Porcine Zona Pellucida, or PZP) 6 designed to reduce their fecundity over the following two-year 7 period. 8 9 See AR 155457-58. Before the gather was scheduled to commence, and after the EA in this matter was issued, the BLM conducted another aerial 10 population inventory to get a more exact count closer to the 11 start of the gather. 12 July 26, 2010, showed a total of 2236 excess horses and 205 13 burros. 14 That second inventory, completed on The gather took place in August and September of 2010 using 15 the helicopter drive method of capture. Veterans were on site 16 during the gather to examine animals and to make recommendations 17 to BLM regarding the care and humane treatment of the animals. 18 See AR 15460. 19 short-term holding facilities, and from there they were made 20 available for adoption or sale to qualified individuals, or 21 placed in long-term pastures. 22 rates as a result of the capture were much lower than expected. 23 Plaintiffs object to the proposed gather as a direct After capture, BLM transported the wild horses to Despite dire warnings, mortality 24 contravention of the Act. They claim that the EA does not 25 properly identify and categorize excess animals prior to capture. 26 They further contend that the BLM has not adequately shown that 27 HMA resources are being overtaxed by the current population of 28 horses to the extent that there are indeed excess animals. 8 1 In addition, Plaintiffs allege that the EA does not properly 2 analyze the combined effect of so many animals being gathered, 3 along with the impact that widespread contraception will have on 4 the animals and their social characteristics. 5 adequately address those issues, Plaintiffs claim that the EA 6 runs afoul of NEPA’s mandate that a “hard look” be taken prior to 7 any significant environmental action. 8 Safari Club, on the other hand, argue that the EA was adequate 9 and that no violations of either the Act or NEPA have been 10 By failing to The government and the established. 11 PROCEDURAL FRAMEWORK 12 13 14 Congress enacted NEPA in 1969 to protect the environment by 15 requiring certain procedural safeguards before an agency takes 16 action affecting the environment. 17 to “ensure that the agency ... will have detailed information 18 concerning significant environmental impacts; it also guarantees 19 that the relevant information will be made available to the 20 larger [public] audience.” 21 Project v. Blackwood, 171 F.3d 1208, 121 (9th Cir. 1998). 22 purpose of NEPA is to “ensure a process, not to ensure any 23 result.” 24 comprehensive up-front environmental analysis to ensure informed 25 decision-making to the end that the agency will not act on 26 incomplete information, only to regret its decision after is it 27 too late to correct.” 28 Forest Serv., 349 F.3d 1157, 1166 (9th Cir. 2003). Id. The NEPA process is designed Blue Mountains Biodiversity The “NEPA emphasizes the importance of coherent and Center for Biological Diversity v. U.S. 9 1 Complete analysis under NEPA also assures that the public has 2 sufficient information to challenge the agency’s decision. 3 Robertson v. Methow Valley Citizens, 490 U.S. 332, 349 (1989); 4 Idaho Sporting Cong. v. Thomas, 137 F.3d 1146, 1151 (9th Cir. 5 1998). 6 NEPA requires that all federal agencies, including the 7 Forest Service, prepare a “detailed statement” that discusses the 8 environmental ramifications, and alternatives, to all “major 9 Federal Actions significantly affecting the quality of the human 10 environment.” 42 U.S.C. § 4332(2)(c). An agency must take a 11 “hard look” at the consequences, environmental impacts, and 12 adverse environmental effects of a proposed action within an 13 environmental impact statement (“EIS”), when required. 14 Sierra Club, 427 U.S. 390, 410, n.21 (1976). 15 whether an EIS is required, an agency may first prepare an 16 environmental assessment (“EA”). 17 “[b]riefly provide sufficient evidence and analysis to 18 determining whether to prepare” an EIS. 19 § 1508.9(a)(1). 20 significantly affect the quality of the human environment, the 21 agency must prepare an EIS. 22 § 4332(2)(C). Kleppe v. To determine The objective of an EA is to 40 C.F.R. If the EA indicates that the federal action may 40 C.F.R. § 1501.4; 42 U.S.C. 23 In the event an agency determines that an EIS is not 24 required, it must, as the BLM did here, issue a FONSI detailing 25 why the action “will not have a significant effect on the human 26 environment.” 27 in this case is contained within the project EA. 28 /// 40 C.F.R. § 1508.13. 10 As is customary, the FONSI 1 The EA must support the agency’s position that a FONSI is 2 indicated. Blue Mountains, 161 F.3d as 1214. 3 NEPA does not mandate that an EIS be based on a particular 4 scientific methodology, nor does it require a reviewing court to 5 weigh conflicting scientific data. 6 Species, Inc. v. Jantzen, 760 F.2d 976, 986 (9th Cir. 1985). 7 An agency must be permitted discretion in relying on the 8 reasonable opinions of its own qualified experts, even if the 9 court might find contrary views more persuasive. See, e.g., Friends of Endangered 10 Kleppe, 427 U.S. at 420, n. 21. 11 rely on the conclusions and opinions of its staff, however, 12 without providing both supporting analysis and data. 13 Sporting Cong., 137 F.3d at 1150. 14 that contraindicates a proposed action must be evaluated and 15 disclosed. 16 discloses effects, NEPA’s goal is satisfied. 17 Lands Council v. U.S. Forest Serv., 88 F.3d 754, 758 (9th Cir. 18 1996) (emphasis in original). 19 NEPA does not allow an agency to 40 C.F.R. § 1502.9(b). Idaho Credible scientific evidence If an EA or EIS adequately Inland Empire Pub. In addition to arguing that the Forest Service violated NEPA 20 in this case, Plaintiffs also contend that the gather violated 21 the Wild Free-Roaming Horses and Burro Act, 16 U.S.C. § 1331, 22 et seq. 23 to designate and maintain specific ranges on public lands as 24 sanctuaries for the horses’ protection and preservation. 25 § 1333(a). 26 /// 27 /// 28 /// The Act, as discussed in more detail below, was enacted 11 Id. at 1 Because neither NEPA nor the Act contains provisions 2 allowing a private right of action (see Lujan v. National 3 Wildlife Federation, 497 U.S. 871, 882 (1990) and Ecology Center 4 Inc. v. United States, 192 F.3d 922, 924 (9th Cir. 1999) for this 5 proposition under NEPA and NFMA, respectively), a party can 6 obtain judicial review of alleged violations of NEPA only under 7 the waiver of sovereign immunity contained within the 8 Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706. 9 Island Institute v. U.S. Forest Serv., 351 F.3d 1291, 1300 10 11 Earth (9th Cir. 2005). Under the APA, the court must determine whether, based on a 12 review of the agency’s administrative record, agency action was 13 “arbitrary and capricious,” outside the scope of the agency’s 14 statutory authority, or otherwise not in accordance with the law. 15 Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1356 16 (9th Cir. 1994). 17 careful.” 18 may not substitute its own judgment for that of the agency. 19 (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 20 401 U.S. 402 (1971), overruled on other grounds by Califano v. 21 Sanders, 430 U.S. 99 (1977)). 22 Review under the APA is “searching and Ocean Advocates, 361 F.3d at 1118. However, the court Id. In reviewing an agency’s actions, then, the standard to be 23 employed is decidedly deferential to the agency’s expertise. 24 Salmon River, 32 F.3d at 1356. 25 agency action is accordingly limited, such action is not 26 unimpeachable. 27 is a rational connection between the facts and resulting judgment 28 so as to support the agency’s determination. Although the scope of review for The reviewing court must determine whether there 12 1 Baltimore Gas and Elec. v. NRDC, 462 U.S. 87, 105-06 (1983), 2 citing Bowman Trans. Inc. v. Arkansas-Best Freight Sys. Inc., 3 419 U.S. 281, 285-86 (1974). 4 capricious if it fails to consider important aspects of the 5 issues before it, if it supports its decisions with explanations 6 contrary to the evidence, or if its decision is either inherently 7 implausible or contrary to governing law. 8 Powell, 395 F.3d 1019, 1026 (9th Cir. 2005). An agency’s review is arbitrary and The Lands Council v. 9 STANDARD 10 11 12 Summary judgment is an appropriate procedure in reviewing 13 agency decisions under the dictates of the APA. 14 Northwest Motorcycle Assn. v. U.S. Dept. Of Agric., 18 F.3d 1468, 15 1471-72 (9th Cir. 1994). 16 56, summary judgment may accordingly be had where, viewing the 17 evidence and the inferences arising therefrom in favor of the 18 nonmovant, there are no genuine issues of material fact in 19 dispute.” 20 however, the court’s task “is not to resolve contested facts 21 questions which may exist in the underlying administrative 22 record,” but rather to determine whether the agency decision was 23 arbitrary and capricious as defined by the APA and discussed 24 above. 25 1071, 1077 (S.D. Ala. 1989); aff’d, Gilbert Equipment Co. Inc. v. 26 Higgins, 894 F.2d 412 (11th Cir. 1990); see also Occidental Eng’g 27 Co. v. INS, 753 F.2d 766, 769 (9th Cir. 1985). 28 /// Id. at 1472. See, e.g., Under Federal Rule of Civil Procedure In cases involving agency action, Gilbert Equipment Co., Inc. v. Higgins, 709 F. Supp. 13 1 Consequently, in reviewing an agency decision, the court must be 2 “searching and careful” in ensuring that the agency has taken a 3 “hard look” at the environmental consequences of its proposed 4 action. 5 402 F.3d 846, 858-59 (9th Cir. 2005); 6 Council v. Lowe, 109 F.3d 521, 526 (9th Cir. 1997). Ocean Advocates v. U.S. Army Corps of Engineers, Or. Natural Res. 7 Because neither NEPA or the Wild Horse Act contain an 8 internal standard of review, both statutory provisions and 9 applicable case law confirm that the APA’s “arbitrary and 10 capricious” standard applies. See 5 U.S.C. § 706(2)(A); 11 Am. Horse Prot. Ass’n v. Frizzell, 403 F. Supp. 1206, 1217 12 (D. Nev. 1975). 13 ANALYSIS 14 15 16 A. Violations of the Act 17 18 In enacting the Wild Free-Roaming Horses and Burros Act 19 (“Act”) in 1971, Congress mandated that wild horses, as “living 20 symbols of the historic and pioneer spirit of the West,” were to 21 be “protected from capture, branding, harassment or death,” and 22 as such were to be considered an “integral part” of public lands 23 in areas where they were presently found. 24 BLM, as the designate of the Secretary of Interior, is directed 25 to accomplish this by maintaining “specific ranges on public 26 lands as sanctuaries for their protection and preservation.” 27 at § 1333(a). 28 /// 14 16 U.S.C. § 1331. The Id. 1 Within only a few years of the Act’s passage, however, 2 action became necessary “to prevent a successful program from 3 exceeding its goals and causing animal habitat destruction.” 4 American Horse Prot. Ass’n v. Watt, 694 F.2d 1310, 1316 (D.C. Cir 5 1982) (quoting H.R. Rep No. 95-1122, at 23 (1978j); see also 6 Blake v. Babbitt, 837 F. Supp. 458, 459 (D.D.C. 1993)(“[e]xcess 7 numbers of horses and burros pose a threat to wildlife, 8 livestock, the improvement of range conditions, and ultimately 9 [the horses themselves]”) (citation omitted). Accordingly, in 10 1978, Congress amended the Act to provide BLM with greater 11 authority and discretion to manage and remove excess horses from 12 the rangeland. Id. Excess animals are defined as animals “which 13 must be removed from an area in order to preserve and maintain a 14 thriving natural ecological balance and multiple-use relationship 15 in that area” as well as horses that have been removed from an 16 area pursuant to applicable law. 17 16 U.S.C. § 1333(b)(2). To this end, the 1978 Amendments require that the BLM 18 “maintain a current inventory of the animals”. 19 § 1333(b). 20 21 22 23 24 Id. at As Congress explained, “The purpose of such inventory shall be to: make determinations as to whether and where an overpopulation exists and whether action should be taken to remove excess animals; determine appropriate management levels of free-roaming horses and burros on these areas of the public lands; and determine whether appropriate management levels should be achieved by the removal or destruction of excess animals, or other options (such as sterilization, or natural controls on population).” 25 26 Id. (emphasis added). 27 /// 28 /// 15 1 Although “all management activities shall be at the minimal 2 feasible level,” the Act goes on to unequivocally provide that if 3 the current population inventory for an HMA reveals that 4 overpopulation exists, and if the BLM determines that “action is 5 necessary to remove excess animals,” it “shall immediately remove 6 excess animals from the range so as to achieve appropriate 7 management levels.” 8 Id. at § 1333(b)(2). In its Watt decision, the District of Columbia Circuit 9 recognizes the importance of permitting the BLM to quickly act in 10 order to address overpopulation issues, based on whatever 11 information to that effect becomes available: 12 13 14 15 16 17 18 19 20 21 “The most important 1978 amendment, for our purposes, is section 1333(b)(2). That section addresses in detail the information upon which BLM may rest its determination that a horse overpopulation exists in a particular area. The Agency is exhorted to consider (i) the inventory of federal public land, (ii) land use plans, (iii) information from environmental impact statements, [and] (iv) the inventory of wild horses, But the Agency is explicitly authorized to proceed with the removal of horses “in the absence of the information contained in (i-iv).” Clauses (i-iv) are therefore precatory; in the final analysis, the law directs that horses “shall be removed “immediately” once the Secretary determines, on the basis of whatever information he has at the time of his decision, that an overpopulation exists. The statute thus clearly conveys Congress’s view that BLM’s findings of wild horse overpopulations should not be overturned quickly on the ground that they are predicated on insufficient information.” 22 23 Watt, 694 F.2d at 1318 (emphasis in original). 24 /// 25 /// 26 /// 27 /// 28 /// 16 1 In removing excess animals, the Act proceeds to prescribe an 2 order in which removal of the animals should be addressed, 3 starting with old, sick or lame animals (which should be 4 destroyed in the most humane manner possible), then proceeding to 5 adoptable horses and burros which can be removed for “private 6 maintenance and care.” Id. at § 1333(b)(2)(A-B). Although the 7 terms of the Act actually provide that excess animals for which 8 an adoption demand does not exist should be “destroyed in the 9 most humane and cost efficient manner possible,” in fact Congress 10 has never appropriated funds for extermination, as opposed to 11 ongoing maintenance, of excess horses even if not adopted. 12 Plaintiffs initially argue that BLM’s proposed gather 13 violates the Act because the animals are not removed according to 14 the priority established by § 1333(b). By rounding up all horses 15 and burros, according to Plaintiffs, BLM ignores the statutory 16 mandate that old, sick and lame animals be eliminated first 17 before determining if the number of remaining healthy animals 18 exceeds viable limits. A careful reading of the Act, however, 19 indicates only that “[t]he Secretary shall order old, sick, and 20 lame animals to be destroyed in the most humane manner possible. 21 16 U.S.C. § 133(b)(2)(A) (emphasis added). The operative verb 22 used is “order,” not “destroy,” with the directive to destroy 23 preceding any action that actually effectuates that directive. 24 The Gather Plan complies with the statutory framework by ordering 25 that old, sick or lame horses be destroyed after they are 26 determined to be in that condition after being removed from the 27 range. 28 /// 17 1 AR 15526, 15556 (following roundup, inspectors are to “determine 2 if animals must be euthanized and provide for the destruction of 3 such animals”).2 The Court agrees with the government that making 4 a determination with respect to the health of the animals on the 5 range is impracticable. While Plaintiffs argue that the 6 selection process in that regard could be accomplished by simply 7 using a pair of binoculars, making a definitive health assessment 8 absent close-up examination would appear all but impossible. 9 See, e.g., In Defense of Animals v. Salazar, 675 F. Supp. 2d 89, 10 97-98 (D.D.C. 2009). Moreover, euthanizing animals on the range 11 on the basis of only cursory inspection would ignore the active 12 use of the word “order” in the statute by calling for actual 13 destruction before any gather is even attempted.3 14 It should also be emphasized that an agency like BLM has 15 considerable discretion on how to carry out the directives of the 16 Act in any event. 17 /// 18 /// 19 2 20 21 22 23 24 25 26 27 28 The Court rejects Plaintiffs’ reliance on a piece of legislative history that omits the word “order” as an attempt to inappropriately rewrite the statutory language based on legislative history that offers no definitive interpretive guidance and amounts to little more than speculation. See Howell-Robinson v. Albert, 384 B.R. 19, 24 (D.D.C. 2008). 3 At the very least, the statutory use of the word “order” as the operative verb makes it ambiguous whether the Bureau has to destroy infirm horses before gathering them for other disposition, and given that ambiguity the Bureau’s interpretation is entitled to so-called Chevron deference. Chevron v. N.R.D.C., 467 U.S. 837, 843 (1984) (“[I]f the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”) Because the Court concludes that the Bureau’s reading of the statute is a reasonable one it will accordingly defer to that interpretation. 18 1 Watt, 694 F. 2d at 1318; Am. Horse Prot. Ass’n v. Frizzell, 2 403 F. Supp. 1206, 1217 (D. Nev. 1975) (noting that BLM must be 3 afforded a “high degree of discretionary authority” in managing 4 herds). This discretion extends to BLM officials being allowed 5 to develop their own methodology for computing the “appropriate 6 management levels” (“AMLs”) for the wild horse and burro 7 populations they are entrusted to protect. 8 BLM, 460 F.3d 13, 15 (D.C. Cir. 2006). Fund for Animals v. Given that discretion, 9 culling disabled animals from a more comprehensively captured 10 group of horses and burros is a method falling within the BLM’s 11 discretion. While Plaintiffs urge that this vetting process 12 should occur on the range, as indicated above from a pragmatic 13 viewpoint it is difficult to see how effective selection could 14 occur absent some capture process. In its Defense of Animals v. 15 Salazar opinion, the District of Columbia Court of Appeals 16 rejected an argument similar to Plaintiffs’, stating as follows: 17 18 19 20 21 22 23 24 25 26 27 “The plaintiffs’ interpretation of the Wild Horse Act is also unpersuasive as a matter of logic. Under the plaintiff’s reading, no healthy horse may be captured before all old and infirm horses are destroyed. This interpretation creates an impossible Catch-22 for the agency: To evaluate the age and health of a horse, a veterinarian must presumably be close to it for a significant period of time. A wild horse is unlikely to submit to such an inspection voluntarily; it would have to be restrained or, more likely, confined– in other words, captured. But if, as the plaintiffs contend, the Bureau cannot capture a healthy horse before euthanizing all unhealthy ones, and cannot determine whether a horse is healthy or unhealthy without capturing it, the agency cannot begin the removal process, despite its statutory mandate to do so. A statute should not be construed to produce absurd results. (citation omitted). As a result, the Wild Horse Act cannot logically be read to forbid the capture of healthy horses prior to the euthanization of unhealthy ones.” 28 /// 19 1 In Defense of Animals v. Salazar, 675 F. Supp. 2d 89, 97-98 2 (D.D.C. 2009). Importantly, too, the Salazar case goes on to 3 find that rounding up the vast majority of a herd for sorting 4 does not “remove” all horses simultaneously from the range, since 5 some of the horses are ultimately returned to the wild. 6 97. Id. at Consequently, contrary to Plaintiffs’ argument, “removal” 7 does not occur before a determination is made of what horses are 8 in fact “excess.” Consequently, the Act’s mandate is not 9 contravened. 10 While Plaintiffs rely heavily on the decision in Colorado 11 Wild Horse and Burro Coalition v. Salazar, 639 F. Supp. 2d 87 12 (D.D.C. 2009), that case in inapposite since it involved removal 13 of all wild horses in the West Douglas Herd Area in Colorado, and 14 because the BLM in that case had not made an excess determination 15 due to an overpopulation of horses. Here, on the other hand, the 16 BLM made a specific determination of just how many animals in the 17 Twin Rivers HMA were excess, based upon established “appropriate 18 management levels” (“AMLs”) and other considerations in promoting 19 multiple uses of the federal lands in question. 20 With respect to what constitutes an appropriate AML, as 21 already indicated BLM officials are also afforded significant 22 discretion with respect to the wild horse and burro populations 23 they manage. See 16 U.S.C. § 1333(b). According to the BLM, the 24 AMLs in question here have been developed over the course of many 25 years. Moreover, and in any event, the BLM has discretion in 26 determining whether an excess population in fact exists, since 27 the Secretary can make that determination “on the basis of 28 whatever information he has at the time of his decision.” 20 1 Am. Horse Prot. Ass’n v. Watt, 694 F.2d 1310, 1318, (D.C. Cir. 2 1982). The Bureau’s determinations in that regard are entitled 3 to deference. 4 Although Plaintiffs contend that population levels under the 5 Act should be determined solely with reference to a “thriving 6 natural ecological balance” (“TNEB”),4 that argument appears 7 misplaced since the statute, as stated above, specifically 8 equates excess animals with AML levels. See 16 U.S.C. 9 § 1333(b)(2) (if overpopulation exists, the BLM “must immediately 10 remove excess animals from the range so as to achieve appropriate 11 management levels.”). 12 AMLs are determined though revisions to the applicable 13 Resource Management Plan, or RMP. As the Gather EA notes, AMLs 14 are established in order to ensure both a thriving natural 15 ecological balance and a multiple use relationship in the HMA. 16 AR 15448. The BLM works to achieve AML guidelines on the range 17 in order to achieve a TNEB. AML is a vehicle used to move 18 towards a TNEB, and a trigger by which the BLM is alerted to 19 address population imbalance. Despite Plaintiffs’ argument to 20 the contrary, TNEB represents an overall objective rather than 21 the means to accomplish it. 22 /// 23 /// 24 /// 25 4 26 27 28 Plaintiffs rely on a 1978 amendment to the act which defined “excess” horses as applying only to animals that “must be removed from an area in order to preserve and maintain a thriving natural ecological balance. 16 U.S.C. § 1332(f). The argument appears to be circular, however, since TNEB is otherwise linked to AML determinations. 21 1 That means, in the form of AML (as well as other factors the BLM 2 has the discretion to consider in determining overpopulation) has 3 already been determined and, as indicated above, no challenge to 4 the operative RMP and its AML determination is presently being 5 made. 6 Here, as discussed above, the wild horse population in the 7 Twin Peaks HMA well exceeded the high end of the AML, therefore 8 compromising the preservation and maintenance of a thriving 9 natural ecological balance in the preserve. See, e.g., AR 15442 10 (excess determination); AR 15442-15443 (noting insufficient 11 forage to sustain growing herd, impaired riparian and wetland 12 habitats, and impaired cultural resource cites); see also 1549413 15502 (discussing condition of riparian and wetland sites). 14 These determinations suffice in meeting the requirements of the 15 Act for determining that an excess population existed. 16 While Plaintiffs claim that horse and burro populations 17 should be given priority within the HMA, and that a greater share 18 of available resources (and presumably different AMLs) should be 19 allocated to them as opposed to cattle or other livestock, that 20 argument fails. First, to the extent that Plaintiffs propose 21 that the multi-use parameters for the HMA be changed, such a 22 change cannot be made within the confines of this action. 23 Rangeland stewardship is established through periodically 24 prepared resource management plans. 25 43 C.F.R. Part 1600. See 43 U.S.C. § 1712; The resource management plan applicable to 26 the Twin Rivers HMA was last revised in 2008, after more than 27 four years of public input and analysis. 28 /// 22 1 Any challenge to how range use is allocated must be made 2 administratively through the Federal Land Policy and Management 3 Act, 43 U.S.C. § 1701, et seq., and not through the Wild Free4 Roaming Horses and Burros Act. Allowing Plaintiff to litigate 5 the propriety of AMLs in this case outside the RMP process (as 6 they ostensibly attempt to do since no formal RMP challenge is 7 present here) would amount to an end-run around the proper 8 procedures for effectuating revisions to the applicable RMP. 9 Plaintiffs’ argument that the HMA must be managed 10 “principally” for wild horse and burro use is also unpersuasive. 11 The Act is a land and resource management statute which requires 12 the BLM to “manage wild free-roaming horses and burros as 13 components of the public lands. 14 added). 16 U.S.C. § 1333 (a) (emphasis As enacted in 1971, the Act states only that ranges 15 should be “devoted principally but not necessarily exclusively to 16 horse and burro welfare in keeping with the multiple-use 17 management concept for the public lands.” Id. at § 1333(c). 18 Although even this language does not mandate that only horse and 19 burro interests be considered, in 1978 Congress amended the act 20 to make it clear that BLM must strive for a balance that meets 21 the needs of all range users. 22 23 24 25 As the D.C. Circuit explained, “The main thrust of the 1978 amendments is to cut back on the protection the Act affords wild horses, and to reemphasize other uses of the natural resources wild horses consume. The amendments introduce a definition of “excess” horses: horses are in “excess” if they “must be removed from an area in order to preserve and maintain a thriving natural ecological balance and multiple-use relationship in that area.” 26 27 /// 28 /// 23 1 Am. Horse Prot. Ass’n Inc. v. Watt, 694 F.2d 1310, 1316 (D.C. 2 Cir. 1982) (citing 16 U.S.C. § 1332(f); see also Blake v. 3 Babbitt, 837 F. Supp. 458, 459 (D.D.C. 1993) (“[t]he amendments 4 make it clear the importance of management of the public range 5 for multiple uses, rather than emphasizing wild horse needs.”) 6 The legislative history underlying the 1978 amendments 7 further illuminates Congress’ intent: 8 9 10 11 “The goal of wild horse and burro management, as with all range management programs, should be to maintain a thriving ecological balance between wild horse and burro populations, wildlife, livestock and vegetation, and to protect the range from the deterioration associated with overpopulation of wild horses and burros.” 12 Conference Report 95-1737, October 6, 1978 to accompany H.R. 13 10587, Public Rangelands Improvement Act of 1978. The Act should 14 consequently not be viewed as requiring that the BLM increase the 15 numbers of horses, or give wild horses priority over other users. 16 See Fallini v. Hodel, 725 F. Supp. 1113, 1118 (D. Nev. 1989) 17 (holding that the Act does not give horses higher status than 18 cattle on public lands). Instead, the focus of the Act is 19 rightly viewed as protecting wild horse herds as one component of 20 multiple species, and many users, sharing a common environment. 21 Plaintiffs also point to the Act’s mandate that the BLM’s 22 management of horses and burros be at a “minimal feasible level” 23 in arguing that the gather proposed here be enjoined. That 24 language, however, taken from § 1333(a), must be read in 25 conjunction with the equally clear directive that the Bureau 26 adopt a multiple-use management program, as set forth in 27 § 1332(c). 28 /// 24 1 As already noted above, horse populations in the HMA have 2 increased dramatically in recent years, and has approximately 3 doubled since 2004, despite numerous gathers. Left unchecked, it 4 appears the horse population could increase as much as 25 percent 5 annually.5 The BLM has already established that current 6 populations within the HMA exceed appropriate management levels 7 by more than five fold at the low range and by more than three 8 times at the high end of the spectrum. Given the clear statutory 9 mandate that “excess” horses be removed, the proposed gather does 10 not run afoul of the requirement that only “minimal” management 11 be employed. Moreover, given the burgeoning population, efforts 12 to slow reproduction (and the need to remove excess horses in the 13 future) through immunocontraceptives administered to released 14 mares, and through a skewed sex ratio of mares to stallions, is 15 also within the Act’s purview given the circumstances of this 16 case. 17 Plaintiffs claim that removal of horses from the range, 18 particularly when combined with immunocontraceptive use and 19 unnatural sex skewing, is hardly management at the requisite 20 “minimum feasible level.” Plaintiffs fail to appreciate, 21 however, that such treatments are specifically designed to slow 22 the growth rate and consequently decrease the need to remove 23 horses and burros from the range in the future. 24 25 26 27 28 5 The EA estimates that populations are likely to increase at between 23 and 25 percent a year. AR 15532. This means, as the EA also points out, that wild horse population in the Twin Peaks HMA, absent any gather and removal, would exceed 6,000 to 8,000 head within ten years, based on application population increase estimates. This is significantly in excess of the AML range for the horse population, at between 448 and 758. 25 1 In that sense, the BLM’s actions are clearly designed to minimize 2 intervention in the long run. 3 Plaintiffs fare no better in arguing that the planned 4 storage and transport of wild horses to BLM long-term holding 5 facilities is illegal under the Act. While 16 U.S.C. § 1339 does 6 prohibit BLM from relocating wild horses and burros “to areas of 7 the public lands where they do not presently exist,” the Act is 8 silent with respect to private lands. Since the BLM has been 9 barred by an appropriations statute from euthanizing health 10 excess horses (see AR 15529), relocation to private facilities is 11 necessary given the Act’s mandate that excess horses be removed. 12 Significantly, as the government points out, Congress has 13 repeatedly provided funding to BLM for the operation of 14 facilities to house excess animals on private lands.6 By making 15 those appropriations, Congress has expressly acknowledged and 16 approved the Bureau’s use of private facilities for the long-term 17 holding of excess horses.7 18 19 20 21 22 23 6 Since Congress prohibited the destruction of health excess horses, while retaining the statutory mandate to immediately remove excess horses from the range if necessary to achieve a thriving natural ecological balance, it created a “gap” for the agency to fill pursuant to an express or implied delegation of authority to the agency. Action given that gap is entitled to so-called Chevron deference. Railway Labor Execs’ Ass’n v. Nat’l Mediation Bd., 29 F.3d 655, 671 (D.C. Cir. 1994 (en banc) (quoting Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837, 843-44 (1984)). 24 7 25 26 27 28 According to the Gather EA, these private facilities consist of long-term holding grassland pastures in Oklahoma, Kansas, and South Dakota “large enough to allow free-roaming behavior and with the forage, water, and shelter necessary to sustain [the animals] in good condition.” AR 15528-29. Interestingly, while Plaintiffs argue that relocation to holding facilities forever alters the animals’ wild and free-roaming (continued...) 26 1 In 1990, for example, the Appropriations Committee stated that it 2 “continues to support the use of private sanctuaries as a method 3 of removing unadopted wild horses and burros,” and directs BLM to 4 “continue to investigate private sanctuary proposals that are 5 found to be humane and cost effective.” S. Rep. No. 534, 101st 6 Cong., 2nd Sess., 6, 1990 WL 201783 (1990).8 7 In sum, for all the above reasons, the Court finds that the 8 BLM’s conduct of the 2010 Twin Peaks Gather did not run afoul of 9 the provisions of Wild Free-Roaming Horses and Burros Act, and 10 that the government and the Safari Club are accordingly entitled 11 to judgment as a matter of law as to Plaintiffs’ allegations that 12 the 2010 Gather violated the Act. 13 /// 14 /// 15 /// 16 /// 17 /// 18 19 7 20 21 22 23 24 25 26 27 28 (...continued) behavior, transfer to the private facilities enumerated above would appear to be far more consistent with that behavior than the other options for disposing of excess horses and burros contemplated by the Act; namely, adoption, euthanasia or commercial sale. 8 The Court specifically rejects Plaintiffs’ argument that the holding facilities where the excess animals are housed, while privately owned, are nonetheless “administered” by BLM and should accordingly qualify as public lands upon which the animals did not previously exist (the use of which is barred under the Act). The administrative record shows that the BLM, at the most, simply periodically checks to ensure than the long-term holding contractors are complying with the terms of their housing agreements. See, e.g., AR 28575, 28842, 29233., Plaintiffs’ suggestion that this responsible oversight on the BLM’s part transforms private land into public land is without merit. 27 1 B. NEPA Violations 2 3 In addition to arguing that the proposed gather violates the 4 Wild Horses Act, Plaintiff also claims that the gather’s 5 underlying EA runs counter to the provisions of NEPA, since it 6 failed to take the requisite “hard look” at the environmental 7 impact of the action. 8 410 n.21 (1976). See Kleppe v. Sierra Club, 427 U.S. 390, Not every action, however, requires a 9 comprehensive EIS, however; rather, if the agency concludes that 10 there will be no significant environmental impact on the basis of 11 a less detailed EA, it can issue a Finding of No Significant 12 Impact, as the BLM did here on the basis of the 158-page EA that 13 was prepared. The Court’s review of the EA under NEPA should be 14 limited to whether the BLM took a hard look at the environmental 15 consequences of the gather; it must not substitute its own 16 judgment for that of the agency. See Okanogan Highlands 17 Alliance v. Williams, 236 F.3d 468, 473 (9th Cir. 2000) (citing 18 Kleppe, supra). 19 Despite the BLM’s preparation of a lengthy EIS in this 20 matter, Plaintiffs argue that it was still error to have not 21 prepared a full EIS given the 2010 Twin Peak Gather’s combination 22 of both a significant roundup (some 80 to 90 percent of the herd) 23 and the additional herd manipulations that were approved, 24 including the immunocontraceptive use and sex skewing designed to 25 curb further population growth. According to Plaintiffs, this 26 combination creates a dangerous “precedent” for additional wide27 ranging roundups that made preparation of an EIS even more 28 imperative. 28 1 Plaintiffs’ argument in this regards ignores the fact that EAs 2 are “usually highly specific to the project and the locale, thus 3 creating no binding precedent.” Barnes v. U.S. Dept. Of Transp., 4 655 F.3d 1124, 1140 (9th Cir. 2011), citing Town of Cave Creek v. 5 FAA, 325 F.3d 320, 332 (D.C. Cir. 2003). This Court accordingly 6 rejects Plaintiffs’ argument that the scope of the project in 7 itself required a full EIS. 8 Plaintiffs go on to claim that the EA failed to consider 9 sufficient alternatives to its proposed gather plan. A review as 10 to the adequacy of such alternatives, however, is governed by a 11 “rule of reason” commensurate with the EA’s statement of purpose 12 and need. See City of Carmel-By-The-Sea v. U.S. Dep’t of 13 Transp., 123 F.3d 1142, 1156 (9th Cir. 1997). As set forth 14 above, given the rapidly increasing horse and wild burro 15 population and the BLM’s obligation to consider other range users 16 in addition to the horses and burros, it appears clear that given 17 the established ALM range for the animals, wild horses and burros 18 exceeded recommended levels by between three and five times. The 19 EA indicates that the agency thoroughly examined the direct, 20 indirect, and cumulative impacts of the proposed gather, of 21 taking no action, and of two alternative actions. 22 (impacts), AR 15456-15462 (alternatives). AR 15520-15550 While the agency did 23 eliminate from serious consideration another fourteen options (as 24 suggested by the public) that did nothing to decrease horse and 25 burro population, since that corresponded neither with their 26 objective or the statutory mandate that excess animals be removed 27 (AR 15462-15468) it did look seriously at the above-described 28 four different alternatives before settling on the proposed action. 29 1 Plaintiffs’ reliance on a NEPA alternatives claim to attack the 2 EA is misplaced under these circumstances. 3 Plaintiffs argue that the BLM should have considered 4 alternatives short of its decision to relocate a large part of 5 the Twin Peaks herd, and allege that BLM’s decision to limit 6 consideration of other potential measures was “arbitrarily 7 narrow.” As the government points out, Plaintiff’s suggestion 8 that the BLM should have reduced livestock grazing levels and 9 fenced off sensitive riparian sites and springs simply does not 10 address the Act’s requirement that overpopulation be kept in 11 check. The EA explained, for example, how reduced livestock 12 grazing would have done nothing to decrease the rapidly 13 burgeoning wild horse and burro population. AR 15462-63. Nor 14 was Plaintiffs’ suggestion that excess population be controlled 15 through natural predators like mountain lions any more realistic. 16 The EA noted that, based on decades of monitoring, the number of 17 instances where lions have killed horses is “extremely low” and 18 “cannot be considered a viable factor in population control.” 19 AR 15471. 20 The alternatives advanced by Plaintiffs were inadequate 21 because they did not reduce population and therefore accomplish 22 BLM’s objective and the requirements of the Act. NEPA does not 23 compel an agency to consider alternatives that would not fulfill 24 the objectives of a proposed project. See, e.g., Laguna 25 Greenbelt, Inc., v. U.S. Dep’t of Transp., 42 F.3d 517, 524 26 (9th Cir. 1994) (agencies need not “consider alternatives which 27 are infeasible, ineffective, or inconsistent with the basic 28 policy objectives for the management of the area”). 30 1 Under the so-called “rule of reason” articulated by the Ninth 2 Circuit in its City of Carmel case, then, the BLM analyzed an 3 adequate range of alternatives in the EA it prepared in advance 4 of the 2010 Twin Peaks Gather. 5 Plaintiffs also claim that the subject EA is lacking 6 scientifically and fails to adequately respond to dissenting 7 scientific opinion. Examination of the lengthy EA, however, 8 indicates that all aspects of the proposed gather were carefully 9 considered. While Plaintiffs take particular aim at the plan to 10 skew the sex ratio of released animals to 60 percent male, and 11 inject some mares with immunocontraceptives, those actions will 12 not apply to animals not gathered (typically a capture rate of 13 only about 80 percent is achieved). Moreover, the EA explains in 14 detail why those measures were necessary to help curb further 15 population increase. The EA determined, for example, that the 16 PZP contraception is completely reversible, meets BLM 17 requirements for safety to mares and to the environment, and can 18 be easily administered in the field. AR 15530. It also 19 disclosed the impacts of the PZP contraceptive vaccine. 20 Id. at 15529-30. Id. at At least one district court has found that the 21 PZP contraceptives in question are not so uncertain as to require 22 an EIS. Cloud Foundation v. Kempthorne, 2008 WL 2794741 at *9 23 (D. Mont. 2008). 24 /// 25 /// 26 /// 27 /// 28 /// 31 1 According to the previously submitted Declaration of Albert J. 2 Kane, a Senior Staff Veterinarian for the United States 3 Department of Agriculture who also serves as an adviser to the 4 BLM’s Wild Horse and Burro program on matters related to animal 5 care, PZP treatments have been administered to free roaming wild 6 horses since the 1990's, and since 2004, the BLM has safely 7 administered over 2,700 doses of the vaccine in over 75 herd 8 management areas, with no evidence of the treatment having any 9 effect on population ecology. Kane Decl., ¶ 28, ECF No. 31, as 10 cited in Gov’t’s Opening Papers, ECF No. 111, 30:13-16. 11 Although Plaintiffs appear to contend that the BLM failed to 12 adequately respond to scientific studies that show the 13 contraceptives to be more effective during their limited (up to 14 two year) period of efficacy (the BLM’s scientists estimated up 15 to 80 perfect effectiveness, whereas Plaintiffs point to studies 16 suggesting that the effectiveness might be closer to 100 17 percent), the fact that the BLM chose to stand by its own 18 estimates after acknowledging the information provided by 19 Plaintiffs does not make the EA insufficient. An agency has the 20 discretion to rely on the reasonable opinion of its own experts 21 (Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378 (1989)), 22 and agencies are accorded particular deference with respect to 23 scientific issues within their area of expertise. See Sw. Ctr. 24 for Biological Diversity v. Bureau of Reclamation, 143 F.3d 515, 25 523 (9th Cir. 1998). Because the EA has given a thorough and 26 reasoned explanation for its determinations, the expert analyses 27 contained therein are entitled to substantial weight. 28 /// 32 1 See, e.g., Native Ecosystems Council v. U.S. Forest Serv., 2 428 F.3d 1233, 1244 (9th Cir. 2005). 3 The BLM may nonetheless be vulnerable given the fact that 4 certain scientific studies (Cooper and Larsen (2006) and Nunez 5 et al. (2009)) questioned the long-term effects of PZP on herd 6 behavior, particularly when repeatedly administered. Chad Hanson 7 emphasized those studies in his own report, which the BLM largely 8 dismissed. The studies upon which Hanson relies, however, appear 9 to largely be concerned about “possible” effects, and therefore 10 can be distinguished on that basis since effects that are only 11 “possible” do not represent true “dissenting” views. Moreover, 12 the vaccine to be administered in the course of the 2010 Twin 13 Peaks Gather was a single, first time dose as opposed to the 14 Cooper and Larson and Nunez studies which assessed the effects on 15 horses of repeated doses of PZP. The studies, and Hanson’s 16 reliance on them, can be distinguished from the present case on 17 that ground as well. 18 Plaintiffs also claim that the scientific integrity of the 19 EA was compromised, and violated NEPA, because the BLM failed to 20 make available hard data (in the form of so-called Riparian 21 Functional Assessments, or “RFAs”) it used to conclude that some 22 riparian/spring sites were damaged and in a state of decline due 23 to damage caused primarily by wild horses and burros. Plaintiffs 24 further contend that methodology used for aerial population 25 inventories was not disclosed, also in contravention of NEPA’s 26 requirement that a reasoned analysis occur based on the evidence 27 being made “available to all concerned.” Friends of Endangered 28 Species, Inc. v. Jantzen, 760 F.2d 976, 986 (9th Cir. 1985). 33 1 Plaintiffs claim the allegedly withheld evidence undermined the 2 “informed decision making” that results from hard data being 3 provided for scrutiny by all concerned. 4 Pls.’ Reply, 46:20-25. The EA contains an extensive discussion on the effects of 5 wild horses and burros on riparian and wetland sites and explains 6 how the BLM determined that certain of those impacts were 7 attributable to wild horses and burros rather than livestock. 8 AR 15494-15502. The RFAs were expressly referred to in the body 9 of the EA, and the results of the assessments were duly 10 summarized. 11 As the government notes, NEPA’s implementing regulations 12 encourage agencies to incorporate material by reference, 13 particularly in an EIS. See 40 C.F.R. § 1500.4(j); § 1502.21 14 (“Agencies shall incorporate material into an [EIS] by reference 15 when the effect will be to cut down on bulk without impeding 16 agency and public review of the action”). 17 With respect to the BLM’s methodology for obtaining 18 population inventories of the animals, Plaintiffs’ argument that 19 the EA failed to provide adequate information also fails. First, 20 the EA describes the population data in adequate detail and 21 explains that the aerial inventory was done by direct counting. 22 AR 15472-74. In addition, there is no evidence suggesting that 23 the population data obtained through direct counting was 24 inaccurate in any event. 25 Finally, it must also be emphasized that in an EA, an agency 26 is not required to include the same level of detail, and the same 27 depth of response, as for a full EIS. 28 572 F.3d 1003, 1016 (9th Cir. 2009). 34 See Cal. Trout v. FERC, 1 Under 40 C.F.R. 1508.9, an EA is defined as a “concise public 2 document.... that serves to [b]riefly provide sufficient evidence 3 and analysis for determining whether to prepare an environmental 4 impact statement of a finding of no significant impact.” An 5 agency must go farther and prepare a full EIS only “if 6 substantial questions are raised as to whether a project may 7 cause significant degradation of some human environmental factor. 8 LaFlamme v. FERC, 852 F.2d 389, 397 (9th Cir. 1988). Here, 9 following careful consideration of the impacts of the proposed 10 action within a lengthy, 158-page EA, the BLM determined that an 11 EIS was not necessary inasmuch as the requisite “significant 12 impact” needed to trigger preparation of a full EIS was lacking. 13 That conclusion appears well-reasoned and entitled to deference 14 by this Court. 15 CONCLUSION 16 17 18 Having failed to meet the high standard necessary to 19 demonstrate that the BLM‘s actions, both in preparing the EA for 20 the 2010 Twin Peaks Gather and in conducting the gather, were 21 arbitrary and capricious either with respect to the Wild Free22 Roaming Horse and Burro Act or the National Environmental Policy 23 Act, Plaintiffs’ Motion for Summary Judgment (ECF No. 104) is 24 denied. Summary Judgment is therefore granted with respect to 25 the cross-motions filed by the government (ECF No. 111) and 26 Defendant-Intervenor Safari Club (ECF No. 109). 27 /// 28 /// 35 1 The Clerk of Court is directed to enter judgment accordingly and 2 to close this file. 3 4 IT IS SO ORDERED. Dated: November 15, 2012 5 6 7 _____________________________ MORRISON C. ENGLAND, JR. UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 36

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