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

Filing 92

ORDER signed by Judge Morrison C. England, Jr on 4/19/2011 ORDERING that Defendant's 68 Motion to Dismiss Plaintiff's Complaint is DENIED as to all ten counts. (Duong, D)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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IN DEFENSE OF ANIMALS;
DREAMCATCHER WILD HORSE AND
BURRO SANCTUARY; BARBARA
CLARKE; CHAD HANSON; LINDA HAY,

No. 2:10-cv-01852-MCE-DAD

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Plaintiffs,
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MEMORANDUM AND ORDER

v.
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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, Field Manager of
Eagle Lake Field Office,

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Defendants.
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----oo0oo----

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Plaintiffs In Defense of Animals, Dreamcatcher Wild Horse

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and Burro Sanctuary, Barbara Clarke, Chad Hanson and Linda Hay

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(“Plaintiffs”) bring suit pursuant to 16 U.S.C. § 1331 et seq.

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and 42 U.S.C. § 4321 et seq.

(ECF. No. 1.)
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Plaintiffs allege Defendants United States Department of the

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Interior, Bureau of Land Management, Ken Salazar, Robert Abbey,

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and Ken Collum (“Defendants”) have violated provisions of the

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Wild and Free-Roaming Horses and Burros Act, National

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Environmental Policy Act, and Administrative Procedures Act.

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Plaintiffs are seeking injunctive and declaratory relief.

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Defendants have filed a Motion to Dismiss the Complaint for lack

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of standing and mootness pursuant to Federal Rule of Civil

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Procedure Rule 12(b)(1).1 (ECF. No. 68.)

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For the reasons stated

below, Defendants’ Motion is DENIED as to all claims.2

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BACKGROUND3

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This action arises out of Defendants’ roundup, gather and

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removal (“roundup”) of wild horses and burros from the Twin Peaks

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Herd Management Area (“Twin Peaks HMA”) in northeast California

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and northwest Nevada.

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789,852 acres, and the United States Bureau of Land Management

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(“BLM”) estimated that before the roundup, a total of

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approximately 2,300 wild horses and over 200 burros lived on the

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Twin Peaks range

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The Twin Peaks HMA encompasses around

(Mot. to Dismiss at 6, 7.)

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All further references to “Rule” or “Rules” are to the
Federal Rules of Civil Procedure unless otherwise noted.

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2

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Because oral argument will not be of material assistance,
the Court deemed this matter suitable for decision without oral
argument. E.D. Cal. Local Rule 230(g).
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The factual assertions in this section are based on the
allegations in Plaintiffs’ Complaint unless otherwise specified.
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The roundup took place on September 19, 2010 and resulted in the

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gathering of 1,637 horses and 160 burros. (Sec. Decl. of Nancy

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Haug at ¶¶4-5.)

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returned to the range and the remainder were transferred to

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corrals where they will be either housed in short-term holding

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facilities where they will be available for adoption, or

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transferred to long-term pastures on private lands.

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9, 10-11.)

After the roundup, 58 horses and one burro were

(Id. at 7,

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A.

Statutory Framework
1.

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Wild Free-Roaming Horses and Burros Act

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The roundup occurred pursuant to the Wild Free-Roaming

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Horses and Burros Act, 16 U.S.C. § 1331 et seq. (“Wild Horses

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Act”), which directs the Secretary of the Interior to manage all

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wild free-roaming horses and burros on federal lands to maintain

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a thriving and natural ecological balance.

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Further, 16 U.S.C. § 1331(b) directs the Secretary to determine

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when an overpopulation exists, and to restore the appropriate

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management levels (“AML”) by removal or destruction of the excess

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animals.

16 U.S.C. § 1331(a).

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While the Secretary is granted significant discretion in

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maintaining the AML for each HMA, Congress has placed several

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restrictions on methodology that may be used.

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determinations of overpopulation, the Secretary must first

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consult several government agencies enumerated in the statute and

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others to be determined by the National Academy of Sciences.

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16 U.S.C. § 1333(b)(1).
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In making

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Once an overpopulation has been determined, and action is to be

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taken, the Secretary is given specific procedures in 16 U.S.C.

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§ 1333(b)(2)-(e) to follow in managing the animals.

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the Secretary must use the most humane methods possible to

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destroy the old, sick, lame, or additional excess animals that

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cannot be adopted. 16 U.S.C. § 1333(b)(2)(A)-(C).

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must be taken in the order and priority described in 16 U.S.C.

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§ 1333(b)(2) until all excess animals are removed.

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16 U.S.C. § 1339 expressly states that it does not authorize the

For example,

All actions

Additionally,

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Secretary to relocate wild horses or burros to areas of public

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lands where they do not presently exist.

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The underlying purpose of the Wild Horse Act is to protect

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wild horses and burros from capture, branding, harassment or

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death.

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that the Secretary is to manage wild horses and burros with the

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“goal of maintaining free-roaming behavior.”

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Further, management of wild horses and burros shall be at the

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minimum level necessary to attain objectives and shall be

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“undertaken with the objective of limiting the animals’

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distribution to herd areas.”

16 U.S.C. § 1331.

The Code of Federal Regulations states

43 CFR 4700.0-6(c).

43 C.F.R. § 4710.4.

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2.

National Environmental Policy Act

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The National Environmental Policy Act, 42 U.S.C. § 4321 et

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seq. (“NEPA”) was enacted with the purpose of promoting efforts

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to prevent or eliminate damage to the environment, to “stimulate

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health and welfare of man,” and to enrich the understanding of

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natural resources important to this nation.
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NEPA is a recognition of the fact that nearly all federal

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activities impact the environment in some way and mandates that

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all government agencies consider the effects of their actions on

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the quality of the environment.

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environment to be considered includes ecological, aesthetic,

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historic, cultural, economic, social, and health.

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indirect or cumulative effects on the environment must be

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analyzed.

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The affected aspects of the

All direct,

40 C.F.R. 1508.8

Before an agency takes any action, it must define the

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purpose and need of the proposed action, and look at various

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options for achieving that purpose and the effects of each option

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on the human environment.

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consider comments and concerns raised by interested parties and

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make a justifiable and fully explained decision.

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essence, NEPA only requires that agencies make a justifiable and

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fully explained decision after a thorough investigation of any

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environmental impact.

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42 U.S.C. § 4332.

An agency must also

Id.

In

To fulfill NEPA’s purposes, an agency may prepare an

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Environmental Assessment (“EA”) to determine whether its planned

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action will have a significant environmental impact.

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Mot. to Dismiss at 5.)

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is found, the agency may issue a Finding of No Significant

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Impact.

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results of the EA, NEPA will require the agency to prepare an

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Environmental Impact Statement (“EIS”) before proceeding.

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(Def.s’

Where no significant environmental impact

Where an environmental impact is anticipated from the

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Id.

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Other factors besides anticipated environmental impact that

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trigger the need to prepare an EIS include actions that would set

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a precedent, cause unknown risks, implement a future program that

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has not yet been analyzed and controversial actions.

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B.

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Plaintiff’s Suit

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BLM routinely conducts population inventories of wild horses

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in the Twin Peaks HMA pursuant to the Wild Horse Act to determine

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whether action is needed to maintain the AML for wild horses and

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burros.

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conducted a population inventory and determined that Twin Peaks

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exceeded its ALM by approximately 1,800 wild horses and 200

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burros.

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Significant Impact, and Decision Record constituting its final

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decision to conduct a roundup of the wild horses and burros to

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bring the population back down to its AML.

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recent evaluation in 2001, the AML range for the Twin Peaks HMA

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is 448-758 wild horses and 72-116 burros.

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2,236 wild horses and 205 burros as of July 26, 2010, BLM

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determined that, if left alone, the population ultimately would

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become unsustainable and crash leaving behind seriously degraded

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soil, vegetation, water sources, and wildlife habitat.

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Given these statistics, BLM proceeded with its planned roundup

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under the authority of the Wild Horse Act.

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(Def.s’ Mot to Dismiss at 6.)

Id.

In September, 2008, BLM

On July 8, 2010, BLM issued an EA, a Finding of No

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Id.

Id.

As of the most

Having counted

Id. at 7.

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The roundup at issue took place over the span of six days.

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(Decl. of Rachel Fazio, Ex. A at 2.)

The roundup was effected by

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use of a helicopter, which, with both its physical presence and

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loud acoustics, would scare the wild horses and burros and drive

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them in the direction of the trap so that they could be gathered.

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Id. at 4.

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these animals indiscriminately and does not track demographics

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such as age and disability, or familial bands between the animals

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unless a foal is nursing.

According to Plaintiffs, BLM captures and releases

Id. at 6, 9.

Once captured,

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approximately 180 horses were returned to the Twin Peaks to

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effect a ratio of 60:40 studs to mares.

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at 8.)

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with the remaining “excess” horses either adopted or transferred

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to long-term pastures on private lands.

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in their EA that they intended to leave 448 wild horses and 72

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burros on the Twin Peaks HMA after the proposed action was

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completed.

(Def.s’ Mot. to Dismiss

The released mares received fertility control treatment,

Id.

Defendants stated

Id.

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According to the October 2008 Government Accountability

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Office report on BLM, 1.2% of the horses removed from other HMAs

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across the United States were euthanized or died during the

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gather process.

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over 5% of the wild horses subjected to the roundup were killed

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in the process.

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animals were killed out of the 1,799 rounded up, two of which

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were euthanized, amounting to less than 1%.4

In a recent roundup conducted in another HMA,

In the Twin Peaks roundup at issue, fifteen

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Statistics retrieved from the Gather Reports on the Twin
Peaks Wild Horse and Burro Roundup found at http://www.blm.gov/ca/
st/en/fo/eaglelake/wildhorseandburro/twinpeaksgather/gatreports.html
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Plaintiffs explain that once wild horses realize they have been

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trapped, they are known to attempt to jump the six-foot panels of

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the corrals to escape, or run head long into the barriers

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breaking their necks in the process.

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and shot as a result.

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animals will suffer “capture myopathy,” a negative reaction to

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confinement which has been known to cause death in wild horses.

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Plaintiffs allege that roundups ultimately lead to the inhumane

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maiming and death of the young, old, sick and lame horses.

Others are severely injured

Plaintiffs further maintain that wild

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Plaintiffs further claim that scientific studies show serious

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harm to wild horses from anti-fertility drugs given to mares

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before release.

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(Pl.s’ Opp. to Mot. to Dismiss at 2.)

Plaintiffs allege that Defendants violated several

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provisions of the Wild Horse Act and NEPA in the resulting

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roundup.

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process used to effect the roundup, and the decision itself to

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instigate a roundup.

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These allegations include violations both in the

Plaintiffs’ individual claims are as follows: (1) violation

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of 16 U.S.C. § 1333(b)(2), which prohibits BLM from capturing and

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removing old, sick or lame horses, and instead culling them on

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the range, and additionally permits only removal of excess

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adoptable horses; (2) violations of §§ 1331 and 1339, which

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prohibit BLM from relocating horses to public lands where horses

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do not presently exist, and did not exist in 1971; (3) violations

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of §§ 1333(b)(2) and 1339 for roundup of non-excess, non-

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adoptable horses;

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(4) violations of § 1333(a), which prohibits extensive

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interference with wild herds without considering other options,

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and that HMAs be “devoted principally” to the welfare of wild

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herds; (5) violation of 42 U.S.C. § 4332, which requires an EIS

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to be prepared where there exists the possibility of significant

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environmental impact including uncertain or controversial

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effects; (6) failure to consider all reasonable alternatives to

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the roundup pursuant to 42 U.S.C. § 4332(E) and 40 C.F.R.

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§ 1502.14; (7) failure to ensure scientific accuracy and

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integrity of NEPA documents pursuant to 40 C.F.R. § 1502.24, and

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failure to adequately disclose environmental impacts pursuant to

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40 C.F.R. § 1508.9; (8) failure to respond to dissenting

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scientific opinion; (9) failure to consider impacts and effects

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on the environment; and (10) failure to prepare an organized and

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readily understandable EA.

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STANDARD

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Under Article III of the United States Constitution, a

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federal court can only adjudicate an actual live “case or

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controversy,” which requires a plaintiff to demonstrate standing,

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Summers v. Earth Island Inst., 129 S. Ct. 1142, 1149-50 (2009)

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and that the matter is not moot, Powell v. McCormack, 395 U.S.

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486, 496 n.7 (1969).

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plaintiff must demonstrate (1) an injury in fact, which is

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defined as a concrete and particularized invasion of a legally

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protected interest;

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In order to establish standing, the

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(2) causation which is fairly traceable between the alleged

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injury in fact and alleged conduct of the defendant; and

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(3) redressability.

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Serv.’s, Inc., 554 U.S. 269, 273-74 (2008).

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Sprint Communications Co., L.P. v. APCC

A court does not have jurisdiction “to give opinions upon

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moot questions or abstract propositions, or to declare principles

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or rules of law which cannot affect the matter in issue in the

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case before it.”

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9, 12 (1992).

Church of Scientology of CA v. U.S., 506 U.S.

A claim is moot if “...changes in the

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circumstances that prevailed at the beginning of litigation have

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forestalled any occasion for meaningful relief.”

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v. L.L. Bean, Inc., 398 F.3d 1125, 1129 (9th Cir. 2005) (en

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banc).

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any effective relief to remedy the alleged violations.

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Defense Ctr. v. Gordon, 849 F.2d 1241, 1244-45 (9th Cir. 1988).

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If any remedy could help alleviate the adverse effects of the

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injury suffered by a plaintiff, the claim is not moot.

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Cuomo, 236 F.3d 1124, 1137 (9th Cir. 2000).

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Gator.com Corp

The focus of a mootness inquiry is whether there can be
NW Envtl.

Tyler v.

Where a claim is found to be moot, dismissal may still be

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unwarranted where the claim falls within a recognized exception

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to the mootness doctrine.

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has voluntarily ceased the initial portion of the challenged

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activity prior to its completion, but the activity could resume

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without judicial intervention.

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440 U.S. 625, 631 (1979).

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One exception lies where the defendant

County of Los Angeles v. Davis,

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Another exception applies where the action is capable of

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repetition yet evades review; the duration of the action is too

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short to allow full litigation before it ceases, and there is a

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reasonable expectation that plaintiffs will be subjected to the

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action again.

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(9th Cir. 1993).

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be too remote or speculative.

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416 U.S. 115, 122-23 (1974).

Greenpeace Action v. Franklin, 14 F.3d 1324, 1329
Recurrence of the challenged activity must not
Super Tire Eng’g Co. v. McCorkle,

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ANALYSIS

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A.

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Standing

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Plaintiffs bring four claims against Defendants for

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violations of the Wild Horse Act regarding both the manner of

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Defendants’ roundup of the wild horses and burros on the Twin

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Peaks HMA, and the act itself.

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claims for lack of standing.

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Plaintiffs’ four claims implicating the Wild Horse Act into two

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basic categories.

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Four essentially challenge the legality of the roundup, and Claim

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Three challenges the potential relocation of excess horses to

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long-term holding facilities.

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cannot demonstrate standing as to either set of claims.

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Defendants attack these four
Defendants group each of

Defendants maintain that Claims One, Two, and

Defendants contend that Plaintiffs

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In order to demonstrate standing Plaintiffs must “establish:

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(1) an injury in fact (i.e., a concrete and particularized

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invasion of a legally protected interest); (2) causation (i.e., a

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fairly trace[able] connection between the alleged injury in fact

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and the alleged conduct of the defendant); and

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(3) redressability....“ Sprint Communications Co., 554 U.S. at

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273-74 (internal citations omitted).

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Article III, § 2 of the Constitution and “[t]he purpose of the

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case-or-controversy requirement is to limit the business of the

This test emanates from

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federal courts to questions presented in an adversary context and

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in a form historically viewed as capable of resolution through

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the judicial process.”

Id. (internal citations omitted).

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1.

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Standing to challenge legality of the gather

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Defendants argue that Plaintiffs’ claimed injury is merely

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an alleged personal sadness at the effects of Defendants’

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actions.

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right to view horses on the Twin Peaks range.

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maintain that neither of these assertions is a legally protected

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right that would give rise to a viable claim.

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Plaintiffs claim that they have a legally protected
Defendants

Diminished “aesthetic and environmental well-being,”

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however, is a well recognized cognizable injury for the purposes

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of standing.

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1396 (9th Cir. 1992) (citing Sierra Club v. Morton, 405 U.S. 727,

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734 (1972)).

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Fund for Animals, Inc. v. Lujan, 962 F.2d 1391,

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Plaintiffs need not establish the complete elimination of the

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animals they seek to conserve in order to have a recognized

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injury-in-fact in the lost ability to observe and enjoy those

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animals.

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437 (D.C. Cir. 1998)

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Animal Legal Def. Fund, Inc. v. Glickman, 154 F.3d 426,

Plaintiffs state that their concrete and particularized

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injury-in-fact stems from their diminished ability to interact

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with, view and enjoy wild horses and burros on Twin Peaks.

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Lujan, the court agreed that a diminished opportunity to view

In

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northern bison herds in Yellowstone was sufficient to establish

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plantiffs’ standing in challenging the defendants’ bison

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management plan, a plan that would remove more than two-thirds of

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the bison population.

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persuaded that Plaintiffs have established a concrete and

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particularized injury-in-fact for standing in their allegedly

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diminished ability to interact with and view wild horses and

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burros.

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962 F.2d at 1396.

Likewise, this Court is

Defendants argue that even if these harms were deemed

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cognizable, however, no injury can take place from the removal of

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wild horses Defendant BLM has determined to be “excess,” as the

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Wild Horse Act in fact requires Defendant BLM to remove those

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horses from the area.

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Plaintiffs may have a right to enjoy some wild horses and burros,

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but have no right to view “excess” wild horses and burros.

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an argument begs the question.

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very point of contention underlying Plaintiffs’ Complaint: the

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legality of Defendant BLM’s decision that the wild horses removed

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were in fact “excess.”

In essence, Defendants maintain that

Such

Defendants assume as true the

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Acceptance of this argument would require this Court to

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adjudicate the factual basis for the instant action.

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to dismiss, a court may not decide questions of fact, but,

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rather, must assume as true all allegations in Plaintiffs’

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Complaint.

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On a motion

In defense of its argument, Defendants maintain that

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Plaintiffs have not challenged Defendants’ calculation for

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determining the proper AML for Twin Peaks, and so Plaintiffs do

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not disagree that levels above 758 horses are in excess.

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Plaintiffs do not specifically contend with Defendants’

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established ALM for Twin Peaks, they do challenge other relevant

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factors that deflate Defendants’ standing argument.

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attack as “profoundly flawed” the data on which Defendant BLM

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based its determination that there were excess wild horses on

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Twin Peaks. (Compl. at ¶ 5.)

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Defendant BLM did not properly categorize the horses prior to the

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roundup to determine whether they were all excess.

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And finally, they allege that non-excess horses were rounded up

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from the range, which, according to Defendants’ argument,

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Plaintiffs would have a right to view and enjoy.

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48, and 95.

Though

Plaintiffs

Plaintiffs also contend that

Id. at ¶ 51.

Id. at ¶ 46,

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Further, were this Court to accept Defendants’ proposition

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that Plaintiffs have no right to view any “excess” wild horses,

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no plaintiff would ever have standing to challenge Defendant

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BLM’s removal of “excess” horses, regardless of how flagrant the

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violation in making that decision.

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authority for such a proposition.

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Defendants have provided no

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Plaintiffs have properly established a concrete and

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particularized injury-in-fact to challenge the legality of the

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gather.

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standing as to Claims One, Two, and Four is DENIED.

Defendants’ Motion to Dismiss the Complaint for lack of

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2.

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Standing to challenge the potential relocation of
excess horses to long-term holding facilities

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a.

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Injury Fairly Traceable to Defendants’ Actions

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Defendants contend that Plaintiffs’ stated injury of

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diminished enjoyment of wild horses is not fairly traceable to

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the Defendants’ placement of excess horses in long-term holding

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facilities.

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fact lawfully removed from Twin Peaks, Plaintiffs are not injured

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by the fate of those excess horses after removal.

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horses are relocated to a long-term holding facility, adopted,

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sold, or destroyed, Defendants maintain that the effect to

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Plaintiffs is the same.

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BLM will not return them to Twin Peaks where Plaintiffs wish to

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view them.

Defendants claim that, assuming the animals were in

Whether the

Wherever the horses end up, Defendant

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Plaintiffs respond that the roundups would have been far

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more limited, and less animals removed from Twin Peaks in the

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first place, if Defendant BLM had abided by the statutory

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restrictions, which they allege prohibit use of long-term holding

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facilities.

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establishes the scope permitted for Defendant BLM’s roundup of

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the animals.

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Plaintiffs cite to 16 U.S.C. § 1333(b)(2), which

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Where the need for a roundup is determined by the Secretary, such

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an action “shall be taken” in accordance with 16 U.S.C.

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§ 1333(b)(2)(A)-(C).

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shall capture and remove only the number of excess animals for

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which “he determines an adoption demand exists by qualified

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individuals....”

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the only expressly permitted means by which Defendants may

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dispose of the excess animals under the Wild Horse Act is to have

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them destroyed or sold.

This section states that the Secretary

16 U.S.C. § 1333(b)(2)(B).

Outside adoption,

16 U.S.C. § 1333(b)(2), (e).

Thus,

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Plaintiffs argue, without use of long-term holding facilities,

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Defendants would not have removed more animals than they could

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have feasibly succeeded in placing for adoption.

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In support of their argument, Defendants cite to a D.C.

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Circuit case where the court found no reason to believe that BLM

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would cease to remove excess horses if long-term holding was an

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impermissible option.

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Supp. 2d 20, 28 (D.D.C. 2010).

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suggests that, rather than move them to long-term holding, BLM

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could “redouble its efforts” to effect more adoptions of the

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animals, and euthanize any remaining unadoptable horses.

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However, in the instant case, Defendants themselves acknowledge

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that the only animals which end up in long-term holding

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facilities are those that cannot be sold or adopted.

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Dismiss at 16.)

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destruction of horses under existing appropriations law.

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In Def. of Animals v. Salazar, 713 F.
The court in In Def. of Animals

Id.

(Mot. to

They further note that Congress has prohibited

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Id.

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Since the animals which will be sent to long-term holding

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facilities are those which cannot be adopted, sold, or destroyed,

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it stands to reason that Defendants would have removed fewer

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animals from Twin Peaks if long-term holding were not an option.

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This Court need not decide at the motion to dismiss stage

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whether long-term holding is in fact prohibited under the Wild

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Horse Act.

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correct in their allegation that long-term holding is statutorily

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prohibited, Plaintiffs have established the injury-in-fact and

Assuming, as this Court must, that Plaintiffs are

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causation elements of standing.

The stated injury of diminished

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ability to enjoy the wild horses and burros is fairly traceable

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to Defendants’ removal of those animals to long-term holding.

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b.

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Redressability

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Defendants contend that any cognizable injuries to

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Plaintiffs are not redressable because the Wild Horse Act does

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not permit Defendant BLM or this Court to reintroduce excess

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horses to an overpopulated range.

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to Defendants, the only possible way to comply with an order

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prohibiting use of long-term holding facilities is to return

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these excess horses back to Twin Peaks in contravention of the

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Wild Horse Act.

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to returning horses to Twin Peaks.

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would be satisfied with relocation to public lands in the West as

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opposed to long-term holding facilities in Oklahoma or Kansas so

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that Plaintiffs can continue to view and enjoy these wild horses.

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16 U.S.C. § 1333.

According

Plaintiffs respond by providing an alternative

17

Plaintiffs claim that they

1

Plaintiffs cite to 16 U.S.C. § 1333(a), which authorizes

2

Defendant BLM to designate additional ranges on public lands as

3

sanctuaries for the protection and preservation of wild horses

4

and burros.

5

returned to Twin Peaks, at least they can still live in the West

6

as Defendant BLM has the authority and discretion to designate

7

additional ranges for horses and burros.

8

their reply brief denied possessing this authority to relocate

9

the horses to a newly designated range in the West.

Plaintiffs argue that even if the animals cannot be

Defendants have not in

Thus,

10

regardless of the likelihood of Defendant BLM taking such an

11

action, the Wild Horse Act does indeed provide an opportunity for

12

redress of Plaintiffs’ claims.

13

elements required to establish standing have been met for each of

14

Plaintiffs’ four claims under the Wild Horse Act.

15

Motion to Dismiss Claim Three for lack of standing is DENIED.

This Court finds that all three

Defendants’

16
B.

17

Mootness

18
19

Defendants challenge Plaintiffs’ Complaint (except for the

20

allegations contained in Claim Two) as moot and, therefore, not

21

justiciable.

22

lacks jurisdiction to hear the matter.

23

Horse Act Claims and NEPA Claims separately, arguing the claims

24

are moot, and do not meet either of the two exceptions for

25

mootness.

26

///

27

///

28

///

Defendants, therefore, contend that this Court

18

They attack the Wild

1

A matter is moot and must be dismissed for lack of

2

jurisdiction if an injury no longer exists or a change in

3

circumstances during the litigation deprives a court of the

4

ability to provide any meaningful or effective relief for the

5

alleged violation.

6

“A case might become moot if subsequent events made it absolutely

7

clear that the allegedly wrongful behavior could not reasonably

8

be expected to recur.” Friends of the Earth, Inc. v. Laidlaw

9

Envtl. Services (TOC), Inc., 528 U.S. 167, 189 (2000) (quoting

10

U.S. v. Concentrated Phosphate Export Assn., 393 U.S. 199, 203

11

(1968)).

12

challenged conduct cannot reasonably be expected to start up

13

again lies with the party asserting mootness. Id.

14

mootness inquiry is whether there can be any effective relief to

15

remedy the alleged violations.

16

at 1245.

17

of the injury suffered by a plaintiff, the claim is not moot.

18

Tyler, 236 F.3d at 1137.

19

See Mills v. Green, 159 U.S. 651, 653 (1895).

The heavy burden of persua[ding]” the court that the

The focus of a

NW Envtl. Defense Ctr., 849 F.2d

If any remedy could help alleviate the adverse effects

Where a claim is found to be moot, dismissal may still be

20

unwarranted where the claim falls within a recognized exception

21

to the mootness doctrine.

22

is capable of repetition yet evades review.

23

484 U.S. 305, 318-20 (1988).

24

controversy must meet two requirements: “(1) the challenged

25

action was in its duration too short to be fully litigated prior

26

to its cessation or expiration, and (2) there was a reasonable

27

expectation that the same complaining party would be subjected to

28

the same action again.” Murphy v. Hunt, 455 U.S. 478, 482 (1982).

One exception applies where the action
Honig v. Doe,

To fall within this exception, the

19

1

And finally, recurrence of the challenged activity must not be

2

too remote or speculative.

3

123.

Super Tire Eng’g Co., 416 U.S. at

4
1.

5

Wild Horses Act Violations

6
7

Defendants argue that Claims One, Three, and Four are moot

8

because the roundup is completed and this Court can no longer

9

provide the Plaintiffs with meaningful relief.

Defendants

10

maintain that none of Plaintiffs’ claims meet the requirements

11

for an exception to mootness.

12

Defendant BLM’s Decision and EA to demonstrate that several main

13

components of the 2010 Gather Plan have yet to be completed, and

14

that many of Plaintiffs’ claims are therefore not moot.

15

the Gather Plan is not yet complete, Plaintiffs contend,

16

effective relief for the alleged violations of the Wild Horse Act

17

can still be granted.

18

even should their claims be denied as moot, an exception to the

19

mootness requirements shall exist.

20

Plaintiffs, in response, refer to

Because

Plaintiffs argue in the alternative that

Claim One alleges that the Wild Horse Act requires old, sick

21

and lame horses to be culled on the range rather than captured,

22

and prevents Defendants from removing non-excess and non-

23

adoptable horses from the range.

24

(B).

25

capture and roundup non-excess horses only to release them back

26

on the range.

27

///

28

///

16 U.S.C. § 1333(b)(2)(A) and

Claim Three alleges that Defendants were not permitted to

16 U.S.C. § 1333(b)(2).

20

1

Claim Four cites to violations of 16 U.S.C. § 1333(a) by

2

extensively interfering in management of the horses, using

3

inhumane methods of chasing the horses with helicopters, and for

4

not principally devoting herd management to the welfare of the

5

horses and burros.

6

relief: return captured horses to the range or another range in

7

the West, enjoin the sterilization of horses, enjoin further

8

implementation of the 2010 Twin Peaks Gather Plan, reduce

9

livestock grazing, require completion of an EIS, require public

10

disclosure of hard data and methodologies, and issue declaratory

11

relief regarding legal requirements of Wild Horse Act.

12

Plaintiffs list several forms of possible

Though the last day of the actual roundup and removal of

13

wild horses and burros took place on September 19, 2010,

14

Plaintiffs contend that Defendants have not yet completed all

15

actions for their 2010 Gather Plan and, therefore, relief may

16

still be granted.

17

they have not yet adopted out all the animals in short-term

18

holding, and that the adoption schedule extends until September

19

2011.

20

the remaining animals to long-term holding facilities.

Plaintiffs note, and Defendants concede, that

Additionally, Defendants concede they have not yet shipped

21

Though Defendants acknowledge that these two aspects of

22

their 2010 Gather Plan have in fact not been completed, they

23

argue that the matter is still moot because Plaintiffs “are not

24

experiencing an ongoing harm,” and effective relief is no longer

25

available to them.

26

at 6.)

27

experiencing an ongoing harm on their insistence that the roundup

28

of wild horses and burros is complete.

(Def.’s Reply in Supp. of Mot. to Dismiss

Defendants base their claim that Plaintiffs are not

21

1

The asserted injury, as mentioned above, is Plaintiffs diminished

2

ability to enjoy wild horses and burros on the Twin Peaks HMA.

3

Because the wild horses and burros removed from the range have

4

not been returned, this Court finds that Plaintiffs do in fact

5

continue to suffer the lost enjoyment of those animals.

6

have sufficiently claimed an ongoing injury.

7

can be granted adequate relief requires a separate analysis

8

continued below.

9

requested forms of relief as it is sufficient to have one

10

available form of relief to withstand a mootness defense.

They

Whether that injury

This Court need not analyze all Plaintiffs’

11
a.

12

Claims One and Four

13
14

Defendants maintain that the Wild Horse Act at § 1333(b)(2)

15

forbids them from reintroducing animals to an overpopulated

16

range, and so relief cannot be granted in this form.

17

further assert that they cannot destroy the horses, as opposed to

18

sending them to long-term holding facilities, because the Fiscal

19

Year 2011 appropriations bill prohibits such an action.

20

No. 111/188, 123 Stat. 2904, 2907 (2009).

21

assert that they have already completed the anti-fertility

22

treatments of mares, and all gelding operations were completed by

23

April 4, 2011.

24

Defendants contend that this Court is unable to grant any of the

25

requested relief to effectively redress Plaintiffs’ injury.

26

///

27

///

28

///

Defendants

Pub. L.

And finally, they

As all possible options are foreclosed,

22

1

Defendants’ assertion that the Wild Horse Act prevents the

2

return of wild horses to an overpopulated range may be supported

3

by a reading of the provision cited, but it is by no means

4

explicitly stated as such.

5

requires BLM to remove excess wild horses from the range, and is

6

silent on the return of horses to the range.

7

interpretation where a provision is not explicit requires further

8

analysis which this Court should avoid in the context of a motion

9

to dismiss.

10

Provision 16 U.S.C. § 1333(b)(2) only

Statutory

Assuming, as this Court must, that Plaintiffs’ allegations

11

are true, and that Defendants conducted the roundup in violation

12

of the Wild Horse Act, this Court would have to determine whether

13

Congressional intent behind the Act would support a return of

14

animals to an overpopulated range under these circumstances.

15

Further, as noted above, Plaintiffs have challenged Defendants’

16

foundational determination that Twin Peaks was overpopulated and

17

that the animals removed were in fact “excess.”

18

Court finds that it could provide effective relief in the form of

19

relocation of the animals to the West assuming Plaintiffs

20

allegations are proven true.

21

Claims One and Four for mootness is DENIED.

As such, this

Defendants’ Motion to Dismiss

22
b.

23

Claim Three

24
25

Unlike the prior two claims, Claim Three cannot be given

26

effective relief with a return of the horses to either Twin Peaks

27

or any other place in the West.

28

///
23

1

Claim Three seeks redress for Defendants’ removal of non-excess

2

and non-adoptable horses from the range, and their subsequent

3

return to the range in contravention of the Wild Horse Act.

4

Plaintiffs argue that this action violates §§ 1333(b)(2) and 1339

5

because non-excess, non-adoptable horses may not be rounded up,

6

and the action constitutes an illegal abuse of discretionary

7

management authority.

8

unclear as it does not diminish Plaintiffs’ ability to view and

9

enjoy wild horses.

The claimed injury for this allegation is

Those horses have already been returned and

10

are currently back on the range.

11

ongoing injury, though they may have in the interim before the

12

horses were returned, no effective relief can be granted and

13

Claim Three is moot.

14

Because Plaintiffs suffer no

Plaintiffs have argued in the alternative that their claim

15

in this regard still falls within an established exception to the

16

mootness doctrine.

17

where mootness applies is to prevent Defendants from committing

18

the alleged wrongful acts again.

19

repetition yet evading review if the challenged action was too

20

short in duration to be fully litigated prior to its cessation or

21

expiration, and there is a reasonable expectation that the same

22

plaintiff would be subjected to the same action.

23

455 U.S. at 482.

24

roundups are generally limited in duration, and maintain that

25

there is no reasonable expectation that BLM will effect another

26

wild horse and burro gather in the same vein as the 2010 Twin

27

Peaks Gather Plan.

28

///

The relief Plaintiffs seek in a circumstance

A claim is capable of

Murphy,

According to Defendants, wild horse and burro

24

1

Defendants acknowledge that a future gather is possible at some

2

undetermined date, however they claim that the exact means and

3

methods are speculative and do not satisfy this exception.

4

Defendants cite to Fund for Animals, Inc. v. BLM, 460 F.3d

5

13, 22-23 (D.C. Cir. 2006), which stated that the “capable of

6

repetition yet evading review” exception cannot be applied to

7

subsequent wild horse and burro gathers because such gathers are

8

“highly fact-specific.”

9

particularly unique in that BLM set out to achieve nationwide

Fund for Animals, Inc., however, was

10

AML; BLM presented the plan to Congress as a Presidential Budget

11

Initiative, and so individual field offices were acting pursuant

12

to a nationwide initiative.

13

case had determined it was a unique enough situation that it was

14

very unlikely to recur stating, “If there are to be more roundups

15

in the future-itself an open question-it remains to be seen

16

whether they will be of the same magnitude as those which have

17

come before, and whether the same criteria are applied.”

18

23.

19

sweeping initiative to reduce herd rates nationwide, it was

20

indeed difficult to say that situation would recur.

21

Id. at 16-17.

The court in that

Id. at

Because the roundup at issue in that case was a one-off

Here, however, individual roundups for Twin Peaks are not

22

unique events; three gathers have occurred in the last five

23

years.

24

above, herd levels at Twin Peaks are already above ALM for the

25

range.

26

numbers above ALM are excess, and, they maintain, the Wild Horse

27

Act requires them to remove those animals.

28

///

(Decl. Nancy Zahedi, Ex. 1 at 5.)

Further, as noted

Defendants have expressly stated their stance that herd

25

1

Accordingly, it is certainly a reasonable expectation that the

2

same plaintiffs would be subjected to the same injury in the

3

future.

4

timing and circumstances, such as topography, types of horses

5

gathered, and nature of any harms, which are all unknowable at

6

this point.

7

Defendants argue that future roundups would vary in

This Court does not find Defendants’ argument persuasive.

8

The “capable of repetition” exception to mootness was not

9

intended to be applied so rigidly.

The Supreme Court has

10

eschewed such rigidity in application of the mootness exception.

11

Fed. Election Comm'n v. Wisconsin Right To Life, Inc., 551 U.S.

12

449, 463 (2007).

13

future repeatable claim must share all characteristics with the

14

current claim in order to be capable of repetition, the Court

15

stated, “History repeats itself, but not at the level of

16

specificity demanded by the [defendant].”

17

controversy to be repeated need not be factually identical to the

18

last detail, but instead considered in terms of the legal

19

questions it presents and the identifying factors that are

20

essential to Plaintiffs’ theory of their claims.

21

Produce Co. v. U.S., 570 F.3d 316, 323 (D.C. Cir. 2009).

22

Plaintiffs’ underlying concern for Claim Three was Defendants’

23

indiscriminate capture and roundup of non-excess horses only to

24

release them back on the range.

25

to say that the precise contours of any future gather are

26

“unknowable” and “speculative,” this is not the proper test for

27

the “capable of repetition” exception.

28

///

In response to a defendant’s insistence that a

Id.

The case or

Del Monte Fresh

And though Defendants are right

26

1

Rather, Plaintiffs need only show that there is a reasonable

2

expectation that the same injury will befall them again.

3

Court finds that Plaintiffs have met that burden, and thus, Claim

4

Three under the Wild Horse Act is not moot.

5

to Dismiss Claim Three for mootness is DENIED.

This

Defendants’ Motion

6
2.

7

NEPA Violations

8
9

Defendants argue that Claims Five through Ten alleging NEPA

10

violations are all moot, and should be dismissed for lack of

11

justiciability.

12

must be used prior to taking action, Defendants argue that once

13

the proposed agency action is complete, the information can no

14

longer serve its purposes, and NEPA is no longer applicable.

15

Defendants maintain that no adequate remedy can be granted

16

because the gathers have been completed, and so preparation of an

17

EIS would not grant Plaintiffs any of the relief they seek.

18

Defendants cite to Feldman v. Bomar, where the plaintiffs alleged

19

only procedural violations under NEPA for defendants’ decision to

20

eradicate the feral pig population.

21

2008).

22

because the court could not “resurrect the pigs, nor take any

23

other action to prevent or undo the eradication.”

24

Defendants argue that the instant matter is analogous in that the

25

horses and burros have already been removed from the range, and

26

cannot be returned as it is prohibited by the Wild Horse Act.

27

///

28

///

Because NEPA only regulates the procedures that

518 F.3d 637 (9th Cir.

The court in Feldman held that the matter was moot

27

Id. at 643.

1

The Ninth Circuit has addressed the issue of mootness as it

2

pertains to NEPA claims, and has stated a policy that completion

3

of agency action does not necessarily moot a NEPA claim because

4

if that were the case, then agencies could “...merely ignore the

5

requirements of NEPA...and then hide behind the mootness

6

doctrine.”

7

920, 925 (9th Cir. 2000) (quoting Columbia Basin Land Protection

8

Ass’n v. Schlesinger, 643 F.2d 585, 591 n.1 (9th Cir. 1981)).

9

West, the court found that though the interchange project was

West v. Secretary of the Dept. of Transp., 206 F.3d

In

10

complete and even carrying traffic, the action was not moot

11

because there was a Stage 2 to the project which had not yet been

12

completed.

13

have remedial powers to correct NEPA violations, including

14

ordering additional environmental review, and even ordering the

15

interchange closed or taken down.

16

in NEPA cases face a particularly heavy burden in establishing

17

mootness.”

18

(9th Cir. 2001).

19

completion of agency action is insufficient to render a case

20

moot.

21

Id.

Further, the court in West stated that it would

Id.

“Accordingly, defendants

Cantrell v. City of Long Beach, 241 F.3d 674, 678
Where effective relief is still available,

Id. at 679.

As noted above, Defendants have yet to finish adopting out

22

the selected horses and sending the remainder to long-term

23

holding facilities.

24

the project was completed, the agency action was not considered

25

complete so long as further steps could be taken, Plaintiffs’

26

claims are not moot where effective relief can still be granted.

27

206 F.3d at 925.

28

///

In light of West where even when the bulk of

28

1

Plaintiffs’ claims allege six NEPA violations, including failures

2

to prepare an EIS, explore a reasonable range of alternatives,

3

ensure scientific accuracy, meaningfully respond to dissenting

4

scientific opinion, disclose methodology, provide detailed

5

analysis of environmental impacts, and prepare an organized and

6

readily understandable EA.

7

Assuming each of Plaintiffs allegations are true, this Court

8

could conceivably provide relief in the form of an order

9

returning all animals in short-term and long-term holding

10

facilities to either Twin Peaks or the West until all

11

requirements of NEPA are met.

12

order compelling Defendants to fully comply with NEPA

13

requirements for all future gathers.

14

Feldman to be apropos as the horses have not been killed, and, as

15

noted above, at this motion to dismiss stage, it is not proper to

16

begin an analysis of the Wild Horse Act to determine if it does

17

in fact prohibit a return of horses to the range.

18

Motion to Dismiss Claims Five, Six, Seven, Eight, Nine, and Ten

19

is DENIED.

20

///

21

///

22

///

23

///

24

///

25

///

26

///

27

///

28

///

Further, this Court could issue an

29

This Court does not find

Defendants’

CONCLUSION

1
2
3

As a matter of law, and for the reasons set forth above,

4

Defendant’s Motion to Dismiss Plaintiff’s Complaint (ECF No. 68)

5

is DENIED as to all ten counts.

6
7

IT IS SO ORDERED.
Dated: April 19, 2011

8
9
10

_____________________________
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE

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