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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 IN DEFENSE OF ANIMALS; DREAMCATCHER WILD HORSE AND BURRO SANCTUARY; BARBARA CLARKE; CHAD HANSON; LINDA HAY, No. 2:10-cv-01852-MCE-DAD 13 Plaintiffs, 14 MEMORANDUM AND ORDER v. 15 16 17 18 19 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, 20 Defendants. 21 22 23 ----oo0oo---- 24 25 Plaintiffs In Defense of Animals, Dreamcatcher Wild Horse 26 and Burro Sanctuary, Barbara Clarke, Chad Hanson and Linda Hay 27 (“Plaintiffs”) bring suit pursuant to 16 U.S.C. § 1331 et seq. 28 and 42 U.S.C. § 4321 et seq. (ECF. No. 1.) 1 1 Plaintiffs allege Defendants United States Department of the 2 Interior, Bureau of Land Management, Ken Salazar, Robert Abbey, 3 and Ken Collum (“Defendants”) have violated provisions of the 4 Wild and Free-Roaming Horses and Burros Act, National 5 Environmental Policy Act, and Administrative Procedures Act. 6 Plaintiffs are seeking injunctive and declaratory relief. 7 Defendants have filed a Motion to Dismiss the Complaint for lack 8 of standing and mootness pursuant to Federal Rule of Civil 9 Procedure Rule 12(b)(1).1 (ECF. No. 68.) 10 For the reasons stated below, Defendants’ Motion is DENIED as to all claims.2 11 BACKGROUND3 12 13 14 This action arises out of Defendants’ roundup, gather and 15 removal (“roundup”) of wild horses and burros from the Twin Peaks 16 Herd Management Area (“Twin Peaks HMA”) in northeast California 17 and northwest Nevada. 18 789,852 acres, and the United States Bureau of Land Management 19 (“BLM”) estimated that before the roundup, a total of 20 approximately 2,300 wild horses and over 200 burros lived on the 21 Twin Peaks range 22 /// The Twin Peaks HMA encompasses around (Mot. to Dismiss at 6, 7.) 23 24 1 All further references to “Rule” or “Rules” are to the Federal Rules of Civil Procedure unless otherwise noted. 25 2 26 27 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). 3 28 The factual assertions in this section are based on the allegations in Plaintiffs’ Complaint unless otherwise specified. 2 1 The roundup took place on September 19, 2010 and resulted in the 2 gathering of 1,637 horses and 160 burros. (Sec. Decl. of Nancy 3 Haug at ¶¶4-5.) 4 returned to the range and the remainder were transferred to 5 corrals where they will be either housed in short-term holding 6 facilities where they will be available for adoption, or 7 transferred to long-term pastures on private lands. 8 9, 10-11.) After the roundup, 58 horses and one burro were (Id. at 7, 9 10 A. Statutory Framework 1. 11 Wild Free-Roaming Horses and Burros Act 12 13 The roundup occurred pursuant to the Wild Free-Roaming 14 Horses and Burros Act, 16 U.S.C. § 1331 et seq. (“Wild Horses 15 Act”), which directs the Secretary of the Interior to manage all 16 wild free-roaming horses and burros on federal lands to maintain 17 a thriving and natural ecological balance. 18 Further, 16 U.S.C. § 1331(b) directs the Secretary to determine 19 when an overpopulation exists, and to restore the appropriate 20 management levels (“AML”) by removal or destruction of the excess 21 animals. 16 U.S.C. § 1331(a). 22 While the Secretary is granted significant discretion in 23 maintaining the AML for each HMA, Congress has placed several 24 restrictions on methodology that may be used. 25 determinations of overpopulation, the Secretary must first 26 consult several government agencies enumerated in the statute and 27 others to be determined by the National Academy of Sciences. 28 16 U.S.C. § 1333(b)(1). 3 In making 1 Once an overpopulation has been determined, and action is to be 2 taken, the Secretary is given specific procedures in 16 U.S.C. 3 § 1333(b)(2)-(e) to follow in managing the animals. 4 the Secretary must use the most humane methods possible to 5 destroy the old, sick, lame, or additional excess animals that 6 cannot be adopted. 16 U.S.C. § 1333(b)(2)(A)-(C). 7 must be taken in the order and priority described in 16 U.S.C. 8 § 1333(b)(2) until all excess animals are removed. 9 16 U.S.C. § 1339 expressly states that it does not authorize the For example, All actions Additionally, 10 Secretary to relocate wild horses or burros to areas of public 11 lands where they do not presently exist. 12 The underlying purpose of the Wild Horse Act is to protect 13 wild horses and burros from capture, branding, harassment or 14 death. 15 that the Secretary is to manage wild horses and burros with the 16 “goal of maintaining free-roaming behavior.” 17 Further, management of wild horses and burros shall be at the 18 minimum level necessary to attain objectives and shall be 19 “undertaken with the objective of limiting the animals’ 20 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. 21 22 2. National Environmental Policy Act 23 24 The National Environmental Policy Act, 42 U.S.C. § 4321 et 25 seq. (“NEPA”) was enacted with the purpose of promoting efforts 26 to prevent or eliminate damage to the environment, to “stimulate 27 health and welfare of man,” and to enrich the understanding of 28 natural resources important to this nation. 4 1 NEPA is a recognition of the fact that nearly all federal 2 activities impact the environment in some way and mandates that 3 all government agencies consider the effects of their actions on 4 the quality of the environment. 5 environment to be considered includes ecological, aesthetic, 6 historic, cultural, economic, social, and health. 7 indirect or cumulative effects on the environment must be 8 analyzed. 9 The affected aspects of the All direct, 40 C.F.R. 1508.8 Before an agency takes any action, it must define the 10 purpose and need of the proposed action, and look at various 11 options for achieving that purpose and the effects of each option 12 on the human environment. 13 consider comments and concerns raised by interested parties and 14 make a justifiable and fully explained decision. 15 essence, NEPA only requires that agencies make a justifiable and 16 fully explained decision after a thorough investigation of any 17 environmental impact. 18 42 U.S.C. § 4332. An agency must also Id. In To fulfill NEPA’s purposes, an agency may prepare an 19 Environmental Assessment (“EA”) to determine whether its planned 20 action will have a significant environmental impact. 21 Mot. to Dismiss at 5.) 22 is found, the agency may issue a Finding of No Significant 23 Impact. 24 results of the EA, NEPA will require the agency to prepare an 25 Environmental Impact Statement (“EIS”) before proceeding. 26 /// 27 /// 28 /// (Def.s’ Where no significant environmental impact Where an environmental impact is anticipated from the 5 Id. 1 Other factors besides anticipated environmental impact that 2 trigger the need to prepare an EIS include actions that would set 3 a precedent, cause unknown risks, implement a future program that 4 has not yet been analyzed and controversial actions. 5 B. 6 Plaintiff’s Suit 7 8 BLM routinely conducts population inventories of wild horses 9 in the Twin Peaks HMA pursuant to the Wild Horse Act to determine 10 whether action is needed to maintain the AML for wild horses and 11 burros. 12 conducted a population inventory and determined that Twin Peaks 13 exceeded its ALM by approximately 1,800 wild horses and 200 14 burros. 15 Significant Impact, and Decision Record constituting its final 16 decision to conduct a roundup of the wild horses and burros to 17 bring the population back down to its AML. 18 recent evaluation in 2001, the AML range for the Twin Peaks HMA 19 is 448-758 wild horses and 72-116 burros. 20 2,236 wild horses and 205 burros as of July 26, 2010, BLM 21 determined that, if left alone, the population ultimately would 22 become unsustainable and crash leaving behind seriously degraded 23 soil, vegetation, water sources, and wildlife habitat. 24 Given these statistics, BLM proceeded with its planned roundup 25 under the authority of the Wild Horse Act. 26 /// 27 /// 28 /// (Def.s’ Mot to Dismiss at 6.) Id. In September, 2008, BLM On July 8, 2010, BLM issued an EA, a Finding of No 6 Id. Id. As of the most Having counted Id. at 7. 1 The roundup at issue took place over the span of six days. 2 (Decl. of Rachel Fazio, Ex. A at 2.) The roundup was effected by 3 use of a helicopter, which, with both its physical presence and 4 loud acoustics, would scare the wild horses and burros and drive 5 them in the direction of the trap so that they could be gathered. 6 Id. at 4. 7 these animals indiscriminately and does not track demographics 8 such as age and disability, or familial bands between the animals 9 unless a foal is nursing. According to Plaintiffs, BLM captures and releases Id. at 6, 9. Once captured, 10 approximately 180 horses were returned to the Twin Peaks to 11 effect a ratio of 60:40 studs to mares. 12 at 8.) 13 with the remaining “excess” horses either adopted or transferred 14 to long-term pastures on private lands. 15 in their EA that they intended to leave 448 wild horses and 72 16 burros on the Twin Peaks HMA after the proposed action was 17 completed. (Def.s’ Mot. to Dismiss The released mares received fertility control treatment, Id. Defendants stated Id. 18 According to the October 2008 Government Accountability 19 Office report on BLM, 1.2% of the horses removed from other HMAs 20 across the United States were euthanized or died during the 21 gather process. 22 over 5% of the wild horses subjected to the roundup were killed 23 in the process. 24 animals were killed out of the 1,799 rounded up, two of which 25 were euthanized, amounting to less than 1%.4 In a recent roundup conducted in another HMA, In the Twin Peaks roundup at issue, fifteen 26 27 28 4 Statistics retrieved from the Gather Reports on the Twin Peaks Wild Horse and Burro Roundup found at st/en/fo/eaglelake/wildhorseandburro/twinpeaksgather/gatreports.html 7 1 Plaintiffs explain that once wild horses realize they have been 2 trapped, they are known to attempt to jump the six-foot panels of 3 the corrals to escape, or run head long into the barriers 4 breaking their necks in the process. 5 and shot as a result. 6 animals will suffer “capture myopathy,” a negative reaction to 7 confinement which has been known to cause death in wild horses. 8 Plaintiffs allege that roundups ultimately lead to the inhumane 9 maiming and death of the young, old, sick and lame horses. Others are severely injured Plaintiffs further maintain that wild 10 Plaintiffs further claim that scientific studies show serious 11 harm to wild horses from anti-fertility drugs given to mares 12 before release. 13 (Pl.s’ Opp. to Mot. to Dismiss at 2.) Plaintiffs allege that Defendants violated several 14 provisions of the Wild Horse Act and NEPA in the resulting 15 roundup. 16 process used to effect the roundup, and the decision itself to 17 instigate a roundup. 18 These allegations include violations both in the Plaintiffs’ individual claims are as follows: (1) violation 19 of 16 U.S.C. § 1333(b)(2), which prohibits BLM from capturing and 20 removing old, sick or lame horses, and instead culling them on 21 the range, and additionally permits only removal of excess 22 adoptable horses; (2) violations of §§ 1331 and 1339, which 23 prohibit BLM from relocating horses to public lands where horses 24 do not presently exist, and did not exist in 1971; (3) violations 25 of §§ 1333(b)(2) and 1339 for roundup of non-excess, non- 26 adoptable horses; 27 /// 28 /// 8 1 (4) violations of § 1333(a), which prohibits extensive 2 interference with wild herds without considering other options, 3 and that HMAs be “devoted principally” to the welfare of wild 4 herds; (5) violation of 42 U.S.C. § 4332, which requires an EIS 5 to be prepared where there exists the possibility of significant 6 environmental impact including uncertain or controversial 7 effects; (6) failure to consider all reasonable alternatives to 8 the roundup pursuant to 42 U.S.C. § 4332(E) and 40 C.F.R. 9 § 1502.14; (7) failure to ensure scientific accuracy and 10 integrity of NEPA documents pursuant to 40 C.F.R. § 1502.24, and 11 failure to adequately disclose environmental impacts pursuant to 12 40 C.F.R. § 1508.9; (8) failure to respond to dissenting 13 scientific opinion; (9) failure to consider impacts and effects 14 on the environment; and (10) failure to prepare an organized and 15 readily understandable EA. 16 STANDARD 17 18 19 Under Article III of the United States Constitution, a 20 federal court can only adjudicate an actual live “case or 21 controversy,” which requires a plaintiff to demonstrate standing, 22 Summers v. Earth Island Inst., 129 S. Ct. 1142, 1149-50 (2009) 23 and that the matter is not moot, Powell v. McCormack, 395 U.S. 24 486, 496 n.7 (1969). 25 plaintiff must demonstrate (1) an injury in fact, which is 26 defined as a concrete and particularized invasion of a legally 27 protected interest; 28 /// In order to establish standing, the 9 1 (2) causation which is fairly traceable between the alleged 2 injury in fact and alleged conduct of the defendant; and 3 (3) redressability. 4 Serv.’s, Inc., 554 U.S. 269, 273-74 (2008). 5 Sprint Communications Co., L.P. v. APCC A court does not have jurisdiction “to give opinions upon 6 moot questions or abstract propositions, or to declare principles 7 or rules of law which cannot affect the matter in issue in the 8 case before it.” 9 9, 12 (1992). Church of Scientology of CA v. U.S., 506 U.S. A claim is moot if “...changes in the 10 circumstances that prevailed at the beginning of litigation have 11 forestalled any occasion for meaningful relief.” 12 v. L.L. Bean, Inc., 398 F.3d 1125, 1129 (9th Cir. 2005) (en 13 banc). 14 any effective relief to remedy the alleged violations. 15 Defense Ctr. v. Gordon, 849 F.2d 1241, 1244-45 (9th Cir. 1988). 16 If any remedy could help alleviate the adverse effects of the 17 injury suffered by a plaintiff, the claim is not moot. 18 Cuomo, 236 F.3d 1124, 1137 (9th Cir. 2000). 19 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 20 unwarranted where the claim falls within a recognized exception 21 to the mootness doctrine. 22 has voluntarily ceased the initial portion of the challenged 23 activity prior to its completion, but the activity could resume 24 without judicial intervention. 25 440 U.S. 625, 631 (1979). 26 /// 27 /// 28 /// One exception lies where the defendant County of Los Angeles v. Davis, 10 1 Another exception applies where the action is capable of 2 repetition yet evades review; the duration of the action is too 3 short to allow full litigation before it ceases, and there is a 4 reasonable expectation that plaintiffs will be subjected to the 5 action again. 6 (9th Cir. 1993). 7 be too remote or speculative. 8 416 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, 9 ANALYSIS 10 A. 11 Standing 12 13 Plaintiffs bring four claims against Defendants for 14 violations of the Wild Horse Act regarding both the manner of 15 Defendants’ roundup of the wild horses and burros on the Twin 16 Peaks HMA, and the act itself. 17 claims for lack of standing. 18 Plaintiffs’ four claims implicating the Wild Horse Act into two 19 basic categories. 20 Four essentially challenge the legality of the roundup, and Claim 21 Three challenges the potential relocation of excess horses to 22 long-term holding facilities. 23 cannot demonstrate standing as to either set of claims. 24 /// 25 /// 26 /// 27 /// 28 /// Defendants attack these four Defendants group each of Defendants maintain that Claims One, Two, and Defendants contend that Plaintiffs 11 1 In order to demonstrate standing Plaintiffs must “establish: 2 (1) an injury in fact (i.e., a concrete and particularized 3 invasion of a legally protected interest); (2) causation (i.e., a 4 fairly trace[able] connection between the alleged injury in fact 5 and the alleged conduct of the defendant); and 6 (3) redressability....“ Sprint Communications Co., 554 U.S. at 7 273-74 (internal citations omitted). 8 Article III, § 2 of the Constitution and “[t]he purpose of the 9 case-or-controversy requirement is to limit the business of the This test emanates from 10 federal courts to questions presented in an adversary context and 11 in a form historically viewed as capable of resolution through 12 the judicial process.” Id. (internal citations omitted). 13 1. 14 Standing to challenge legality of the gather 15 16 Defendants argue that Plaintiffs’ claimed injury is merely 17 an alleged personal sadness at the effects of Defendants’ 18 actions. 19 right to view horses on the Twin Peaks range. 20 maintain that neither of these assertions is a legally protected 21 right that would give rise to a viable claim. 22 Plaintiffs claim that they have a legally protected Defendants Diminished “aesthetic and environmental well-being,” 23 however, is a well recognized cognizable injury for the purposes 24 of standing. 25 1396 (9th Cir. 1992) (citing Sierra Club v. Morton, 405 U.S. 727, 26 734 (1972)). 27 /// 28 /// Fund for Animals, Inc. v. Lujan, 962 F.2d 1391, 12 1 Plaintiffs need not establish the complete elimination of the 2 animals they seek to conserve in order to have a recognized 3 injury-in-fact in the lost ability to observe and enjoy those 4 animals. 5 437 (D.C. Cir. 1998) 6 Animal Legal Def. Fund, Inc. v. Glickman, 154 F.3d 426, Plaintiffs state that their concrete and particularized 7 injury-in-fact stems from their diminished ability to interact 8 with, view and enjoy wild horses and burros on Twin Peaks. 9 Lujan, the court agreed that a diminished opportunity to view In 10 northern bison herds in Yellowstone was sufficient to establish 11 plantiffs’ standing in challenging the defendants’ bison 12 management plan, a plan that would remove more than two-thirds of 13 the bison population. 14 persuaded that Plaintiffs have established a concrete and 15 particularized injury-in-fact for standing in their allegedly 16 diminished ability to interact with and view wild horses and 17 burros. 18 962 F.2d at 1396. Likewise, this Court is Defendants argue that even if these harms were deemed 19 cognizable, however, no injury can take place from the removal of 20 wild horses Defendant BLM has determined to be “excess,” as the 21 Wild Horse Act in fact requires Defendant BLM to remove those 22 horses from the area. 23 Plaintiffs may have a right to enjoy some wild horses and burros, 24 but have no right to view “excess” wild horses and burros. 25 an argument begs the question. 26 very point of contention underlying Plaintiffs’ Complaint: the 27 legality of Defendant BLM’s decision that the wild horses removed 28 were in fact “excess.” In essence, Defendants maintain that Such Defendants assume as true the 13 1 Acceptance of this argument would require this Court to 2 adjudicate the factual basis for the instant action. 3 to dismiss, a court may not decide questions of fact, but, 4 rather, must assume as true all allegations in Plaintiffs’ 5 Complaint. 6 On a motion In defense of its argument, Defendants maintain that 7 Plaintiffs have not challenged Defendants’ calculation for 8 determining the proper AML for Twin Peaks, and so Plaintiffs do 9 not disagree that levels above 758 horses are in excess. 10 Plaintiffs do not specifically contend with Defendants’ 11 established ALM for Twin Peaks, they do challenge other relevant 12 factors that deflate Defendants’ standing argument. 13 attack as “profoundly flawed” the data on which Defendant BLM 14 based its determination that there were excess wild horses on 15 Twin Peaks. (Compl. at ¶ 5.) 16 Defendant BLM did not properly categorize the horses prior to the 17 roundup to determine whether they were all excess. 18 And finally, they allege that non-excess horses were rounded up 19 from the range, which, according to Defendants’ argument, 20 Plaintiffs would have a right to view and enjoy. 21 48, and 95. Though Plaintiffs Plaintiffs also contend that Id. at ¶ 51. Id. at ¶ 46, 22 Further, were this Court to accept Defendants’ proposition 23 that Plaintiffs have no right to view any “excess” wild horses, 24 no plaintiff would ever have standing to challenge Defendant 25 BLM’s removal of “excess” horses, regardless of how flagrant the 26 violation in making that decision. 27 authority for such a proposition. 28 /// 14 Defendants have provided no 1 Plaintiffs have properly established a concrete and 2 particularized injury-in-fact to challenge the legality of the 3 gather. 4 standing as to Claims One, Two, and Four is DENIED. Defendants’ Motion to Dismiss the Complaint for lack of 5 2. 6 Standing to challenge the potential relocation of excess horses to long-term holding facilities 7 a. 8 Injury Fairly Traceable to Defendants’ Actions 9 10 Defendants contend that Plaintiffs’ stated injury of 11 diminished enjoyment of wild horses is not fairly traceable to 12 the Defendants’ placement of excess horses in long-term holding 13 facilities. 14 fact lawfully removed from Twin Peaks, Plaintiffs are not injured 15 by the fate of those excess horses after removal. 16 horses are relocated to a long-term holding facility, adopted, 17 sold, or destroyed, Defendants maintain that the effect to 18 Plaintiffs is the same. 19 BLM will not return them to Twin Peaks where Plaintiffs wish to 20 view them. Defendants claim that, assuming the animals were in Whether the Wherever the horses end up, Defendant 21 Plaintiffs respond that the roundups would have been far 22 more limited, and less animals removed from Twin Peaks in the 23 first place, if Defendant BLM had abided by the statutory 24 restrictions, which they allege prohibit use of long-term holding 25 facilities. 26 establishes the scope permitted for Defendant BLM’s roundup of 27 the animals. 28 /// Plaintiffs cite to 16 U.S.C. § 1333(b)(2), which 15 1 Where the need for a roundup is determined by the Secretary, such 2 an action “shall be taken” in accordance with 16 U.S.C. 3 § 1333(b)(2)(A)-(C). 4 shall capture and remove only the number of excess animals for 5 which “he determines an adoption demand exists by qualified 6 individuals....” 7 the only expressly permitted means by which Defendants may 8 dispose of the excess animals under the Wild Horse Act is to have 9 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, 10 Plaintiffs argue, without use of long-term holding facilities, 11 Defendants would not have removed more animals than they could 12 have feasibly succeeded in placing for adoption. 13 In support of their argument, Defendants cite to a D.C. 14 Circuit case where the court found no reason to believe that BLM 15 would cease to remove excess horses if long-term holding was an 16 impermissible option. 17 Supp. 2d 20, 28 (D.D.C. 2010). 18 suggests that, rather than move them to long-term holding, BLM 19 could “redouble its efforts” to effect more adoptions of the 20 animals, and euthanize any remaining unadoptable horses. 21 However, in the instant case, Defendants themselves acknowledge 22 that the only animals which end up in long-term holding 23 facilities are those that cannot be sold or adopted. 24 Dismiss at 16.) 25 destruction of horses under existing appropriations law. 26 /// 27 /// 28 /// 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 16 Id. 1 Since the animals which will be sent to long-term holding 2 facilities are those which cannot be adopted, sold, or destroyed, 3 it stands to reason that Defendants would have removed fewer 4 animals from Twin Peaks if long-term holding were not an option. 5 This Court need not decide at the motion to dismiss stage 6 whether long-term holding is in fact prohibited under the Wild 7 Horse Act. 8 correct in their allegation that long-term holding is statutorily 9 prohibited, Plaintiffs have established the injury-in-fact and Assuming, as this Court must, that Plaintiffs are 10 causation elements of standing. The stated injury of diminished 11 ability to enjoy the wild horses and burros is fairly traceable 12 to Defendants’ removal of those animals to long-term holding. 13 b. 14 Redressability 15 16 Defendants contend that any cognizable injuries to 17 Plaintiffs are not redressable because the Wild Horse Act does 18 not permit Defendant BLM or this Court to reintroduce excess 19 horses to an overpopulated range. 20 to Defendants, the only possible way to comply with an order 21 prohibiting use of long-term holding facilities is to return 22 these excess horses back to Twin Peaks in contravention of the 23 Wild Horse Act. 24 to returning horses to Twin Peaks. 25 would be satisfied with relocation to public lands in the West as 26 opposed to long-term holding facilities in Oklahoma or Kansas so 27 that Plaintiffs can continue to view and enjoy these wild horses. 28 /// 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 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30

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