Tillett v. Bureau of Land Management et al
Filing
41
FINDINGS AND RECOMMENDATIONS re 25 MOTION for Summary Judgment filed by Interior Board of Land Appeals, Bureau of Land Management, Department of Interior. IT IS RECOMMENDED that BLMs combined motion for summary judgment on consolidated cases (ECF No. 25) be GRANTED. Signed by Magistrate Judge Carolyn S Ostby on 4/4/2016. (JDR, )(Hard copy mailed to J. Tillett)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
JERRI JOETTE TILLETT,
CV-15-48-BLG-SPW-CSO
and
CV-15-61-BLG-SPW-CSO
Plaintiff,
vs.
FINDINGS AND
RECOMMENDATION OF
U.S. MAGISTRATE JUDGE
BUREAU OF LAND
MANAGEMENT, INTERIOR
BOARD OF LAND APPEALS,
and DEPARTMENT OF
INTERIOR,
Defendants.
I.
Introduction
Plaintiff Jerri Joette Tillett (“Tillett”), proceeding pro se, brought
the two actions listed above against Defendants Bureau of Land
Management, Interior Board of Land Appeals, and U.S. Department of
Interior (collectively “BLM”), challenging BLM’s management of wild
horses on the Pryor Mountain Wild Horse Range (“PMWHR”).
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In CV 15-48-BLG, Tillett challenges BLM’s fertility control
program (“fertility control case”), and in CV 15-61-BLG she challenges
BLM’s gather program (“gather case”). BLM uses both programs to
manage the wild horse population on the PMWHR under its authority
under Wild Free-Roaming Horses and Burros Act, 16 U.S.C. §§ 13311340 (1971) (“the Wild Horses Act”). On August 26, 2015, with the
parties’ agreement, the Court consolidated the two cases, designating
CV 15-48-BLG the lead action for purposes of filing in the cases. Order
Consolidating Cases and Setting Case Management Plan (ECF No. 16).1
Now pending is BLM’s summary judgment motion addressed to
both cases. BLM’s Combined Mtn. for Summary Judgment on
Consolidated Cases (ECF No. 25). The administrative records for both
cases have been filed with the Court.2 Having reviewed the parties’
arguments and submissions together with the administrative records,
the Court recommends that BLM’s motion be granted.
1
“ECF No.” refers to the document as numbered in the Court’s
Electronic Case Files. See The Bluebook, A Uniform System of Citation,
§ 10.8.3. Any references to page numbers are to those assigned by the
electronic filing system.
2
The Court cites herein to the administrative record in the
fertility control case as “FAR” and to the administrative record in the
gather case as “GAR.”
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II.
Background
A.
The PMWHR
As this Court has noted in other cases,3 Congress declared in 1971
that wild free-roaming horses and burros are living symbols of the
historic and pioneer spirit of the West, and that they enrich the lives of
the American people. The Ninth Circuit Court of Appeals, too, has
noted Congress’ recognition of wild horses’ value to our nation’s
heritage and its efforts to preserve them. See In Defense of Animals v.
U.S. Dept. of the Interior, 751 F.3d 1054, 1058 (9th Cir. 2014). But the
court has also noted the challenges inherent in managing wild horses
and the areas they occupy. As the Ninth Circuit observed recently:
Wild horses – mustangs – and burros are part of our nation’s
heritage from the American West; a heritage Congress has
sought to preserve. That these animals should roam the
Western spaces appeals to the nature lover and historian in
each of us.
But these animals eat and trample. Even in the wide
open West of our nation, there is just so much forage; there
are also many vulnerable cultural artifacts underfoot.
These animals also multiply. And when too many of
them abound in limited land, the congressionally-appointed
3
See Friends of Animals v. BLM, et al., CV 15-59-BLG-SPW (ECF
No. 18 at 2-4); Tillett v. BLM, et al., CV 14-73-BLG-SPW (ECF No. 35 at
2-5); Tillett, et al. v. BLM, CV 12-87-BLG-RFC (ECF No. 21); Cloud
Foundation, Inc. v. Kempthorne, 2008 WL 1794741 (D. Mont., July 16,
2008).
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stewards of that land must act to protect the environment.
Id.
The Secretary of the Interior established the PMWHR to provide
a home for free roaming horses. It spreads over more than 38,000 acres
in Carbon County, Montana, and Bighorn County, Wyoming. “The
PMWHR is an extremely diverse and complex area topographically,
geologically, and ecologically. Environment and elevation in the
PMWHR vary from a sagebrush/salt-shrub dominated desert at 3,850
feet at the southern end of the range in Wyoming to subalpine habitat
at 8,750 feet in Montana at the high point of the range. The PMWHR
was established to protect a population of wild horses of Spanish
ancestry, wildlife, watershed and recreational, archeological, and scenic
values.” Cloud Foundation, Inc. v. Kempthorne, 2008 WL 2794741, *3
(D. Mont., July 16, 2008) (citations omitted).
BLM has management responsibilities for the PMWHR.
Management of a wild horse range requires maintaining a horse
population that will ensure a thriving ecological balance attained by
keeping the horse herd at an appropriate management level (“AML”).
16 U.S.C. § 1333(b)(1). As part of its management obligations, in 1984
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BLM issued a herd management area plan (“HMAP”) establishing an
AML at 121 horses.
In 1992, BLM modified the 1984 HMAP and established an AML
at 85 to 105 horses. The 1992 HMAP governed horse management in
the PMWHR until 2009. Between 1992 and 2009, the PMWHR
averaged a population of approximately 156 horses.
B.
The 2009 Herd Management Area Plan (“2009 HMAP”)
In 2008, BLM evaluated the range to determine if the 1992
HMAP management objectives were being met. 170 horses were found.
The evaluation found that, at that number of horses, certain areas of
range were overused due to grazing and drought. The evaluation also
determined, however, that the PMWHR could accommodate more
horses than the prior AML. BLM ultimately determined in its
PMWHR/Territory EA [environmental assessment] and HMAP (“2009
HMAP”) that an increase in the AML to 90 to 120 horses was
warranted.
The 2009 HMAP stated: “The population will not be taken to the
low range of the Appropriate Management Level (AML) when fertility
control is utilized.” FAR 17; GAR 18. The 2009 HMAP found “The
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population would be managed using a combination of population control
techniques including gathers, fertility control, natural means or a
combination of prescriptions” to maintain the AML. FAR 682-83; GAR
2749-50.
The 2009 HMAP also: (1) provided for continued detailed
monitoring of horses, range, and genetics to determine the AML’s
impact as it related to achieving and maintaining a thriving natural
ecological balance on the public lands and maintaining Spanish
phenotype characteristics, genetics, bloodlines, age classes, and band
structure, FAR 654-55; GAR 2721-22; (2) included selective removal
considerations when a gather is used to ensure the Spanish phenotype
and less common horse genetics are retained, FAR 690-91; GAR 275758; (3) required compliance monitoring to continue after its adoption, to
include a required monitoring log to track habitat monitoring,
population monitoring, and project implementations to assist the public
and BLM to track implementation and to help determine when
adjustments may be needed, FAR 655; GAR 2722; (4) provided that
implementation is necessary to work towards the established AML, to
ensure wild horse health, to limit wild horses to the PMWHR
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boundaries, and to protect the range from deterioration linked to
overpopulation, FAR 658; GAR 2725; and (5) noted the downward trend
in the PMWHR’s ecological condition in low elevation areas likely
caused by an excess of wild horses during drought years beyond the
habitat’s capacity, prompting the AML of 90 to 120 horses to help
promote a thriving natural ecological balance thus maintaining or
increasing vegetation density, vigor, reproduction, productivity,
diversity, and forage availability, FAR 724; GAR 2791.
The 2009 HMAP determination of the AML at 90 to 120 horses,
not including foals, was challenged and upheld in the U.S. District
Court for the District of Columbia in Cloud Foundation, Inc., et al. v.
Ken Salazar, et al., 999 F.Supp.2d 117, 121 (D. D.C. 2013), appeal
dismissed sub nom., Cloud Foundation v. Jewell, 2015 WL 1606931
(D.C. Cir., Mar. 16, 2015).
C.
2015 Fertility Control EA and Decision Record and
2015 Gather EA and Decision Record
As noted above, in early 2015, the horse population was 170
horses. FAR 48; GAR 62. The 170 horses exceeded the 2009 HMAP’s
AML of 90 to 120 horses (excluding foals). BLM thus sought to analyze
the need to take action to bring the PMWHR horse population closer to
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the approved AML of 90 to 120 horses to protect the range from
deterioration and to achieve the ecological balance addressed in the
2009 HMAP. FAR 4; GAR 17.
BLM issued two separate EAs. One EA analyzed the use of
fertility control to maintain the horse population within the AML and
to reduce the need for gather and removal operations. FAR 20. The
other EA analyzed the use of a gather to help reach the AML and to
prevent degradation of the PMWHR. GAR 17.
Both EAs tier to and rely on the analysis set forth in the 2009
HMAP. FAR 17; GAR 16. And both EAs proposed action designed to
prevent rangelands deterioration and help maintain a thriving natural
ecological balance and multiple-use relationships, as described in the
2009 HMAP. FAR 18; GAR 18.
1.
Fertility Control
On March 18, 2015, after considering public comments, BLM
notified interested parties that it was issuing a Finding of No
Significant Impact (“FONSI”) and Decision Record (“DR”) for the
PMWHR fertility control EA, DOI-BLM-0010-2015-006-EA (“Fertility
Control DR”). See FAR 1-48. The notice provided that the Fertility
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Control DR is tiered to the PMWHR/Territory EA (MT-010-08-24) and
2009 HMAP. FAR 1, 3, 10, 646-807.
The 2015 Fertility Control DR modified the fertility control
protocols to provide for administration of the fertility control vaccine
during any season. It also modified which horses would receive the
fertility control vaccine in efforts aimed at achieving a balance between
births and deaths such that, if successful, the need for removing horses
through gathers would be reduced. FAR 25-28.
2.
Gathers
On June 16, 2015, after considering public comments, BLM
notified interested parties that it had issued a FONSI and DR for the
PMWHR Bait/Water Trapping Gather Environmental Assessment DOIBLM-0010-2015-0018-EA (“Gather DR”). It reflects that BLM
considered prior gather and monitoring results and reaffirmed the
continued application of the 2009 HMAP AML of 90 to 120 horses.
GAR 9, 17, 33-35. It further confirmed that the population level of 170
horses was too high and that the established AML of a high of 120
horses was more appropriate over the long term. GAR 34.
BLM considered three alternative plans: (1) a “no action” plan
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under which it would conduct only fertility control but take no other
action; (2) its proposed action of gathering 25 horses in addition to
fertility control; and (3) “Alternative A,” introduced based on public
comments proposing smaller, incremental gathers. GAR 23-25. After
considering public comments and the EA’s analysis, BLM decided to
implement Alternative A. Under that action, BLM would gather 15 to
20 horses in the summer of 2015, and monitor the effects of fertility
control and other management activities in determining the need for
future gathers. GAR 32.
In implementing Alternative A, BLM would take into
consideration the Spanish Phenotype and detailed information of horse
relationships obtained through monitoring and as provided by the
Pryor Mountain Wild Mustang Center, The Cloud Foundation, and
others set forth in the Gather DR. GAR 27-29. BLM seeks to remove
only horses with well represented genetics and at ages that make
adoption viable. GAR 23-25, 31-31.
The Gather DR also analyzed the relationship between removal of
horses and the implementation of fertility control. It found that
fertility control has a minimum of a one-year lapse time until
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population results are realized. After administration of fertility
control, 15 to 18 foals were expected to be born in 2015 in addition to
the 170 horses on the PMWHR. GAR 22. Because of the fertility
control lapse, another 15 to 18 foals are expected to be born in 2016.
Thus, the outcomes of the 2015 Fertility Control DR could not be
expected to be realized until 2017 at the earliest, such that by 2017, the
PMWHR population could be 194 horses. Id. BLM found that a herd of
194 horses could not be sustained within the PMWHR and, even if a
large die-off of older animals were to occur and fertility control were
applied, the population level over the next several years would not be
sustainable. Id.
Thus, BLM decided to adopt Alternative A as action needed to
achieve a thriving natural ecological balance between wild horse
populations, wildlife, vegetation, water, and other multiple uses. GAR
10-11. BLM decided to conduct a smaller, non-helicopter bait and trap
removal of horses in 2015 of 15 to 20 horses, and to allow removals in
future years if the fertility control does not slow the population growth.
On June 8, 2015, Tillett filed the fertility control case, CV 15-48BLG. On July 6, 2015, Tillett filed the gather case, CV 15-61-BLG.
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III. Parties’ Arguments
BLM argues entitlement to summary judgment in both cases for
two principal reasons. BLM’s Amended Br. in Support of Summary
Judgment Mtn. (ECF No. 29) at 3-5, 12-17. First, BLM argues that
Tillett has not alleged any specific basis for the Court’s jurisdiction in
either case. Id. at 3. Rather, BLM argues, Tillett inadequately asserts
the following as a jurisdictional basis in both cases:
“Ongoing systemic malfeasance that is routinely utilized by
the Defendants with impunity. This is the lack of
accountability issue.”4
Id. (quoting CV 15-48-BLG, ECF No. 1; CV 15-61-BLG, ECF No. 1).
BLM notes that Tillett’s claims for relief in both cases seek: (1) a
stay/halt of all BLM actions in the PMWHR; (2) an investigation of
BLM’s methodology; and (3) $500,000 in restitution payable to Tillett,
tax-free. Id. at 3-4 (citing CV 15-48-BLG, ECF No. 1; CV 15-61-BLG,
ECF No. 1). BLM further notes that Tillett filed “legal briefs” with
each case’s Complaint in which she seeks to have the Court order an
investigation of alleged malfeasant behavior and payment of restitution
4
Throughout her filings, Tillett uses abundant emphasis in her
text, including boldface, italics, underlining, all capital letters,
brackets, parenthesis, and combinations of two or more of these. When
the Court quotes from Tillett’s filings herein, it omits such emphasis.
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to Tillett of $500,000, tax free. Id. at 4 (citing CV 15-48-BLG, ECF No.
2 at 3-5; CV 15-61-BLG, ECF No. 2 at 12-14).
Neither document, BLM argues, provides any jurisdictional
statute or references a statute waiving BLM’s sovereign immunity that
would allow the Court to order an investigation or a payment to Tillett.
Id. Thus, BLM argues, the Court should deny Tillett’s claims for an
investigation and restitution or money damages and should grant
judgment in BLM’s favor. Id.
BLM also notes that, although Tillett did not allege the
Administrative Procedure Act (“APA”), 5 U.S.C. § 701, et seq., as a basis
for the Court’s jurisdiction over these cases, BLM argues that the APA
appears to be the only applicable waiver of BLM’s sovereign immunity
for some of Tillett’s allegations. Id. at 5. But, BLM argues, even the
APA does not authorize the Court to order an investigation of BLM.
Thus, BLM argues, the Court should deny Tillett’s request for an
investigation and for money damages. Id.
Second, BLM argues, even assuming the APA provides a
jurisdictional basis for Tillett’s cases against BLM, the Court
nevertheless should grant BLM summary judgment. Id. at 12-17.
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BLM argues that the Court should uphold the 2015 Fertility Control
DR and Gather DR. Id. BLM argues that there exist no genuine issues
of material fact and that it is entitled to summary judgment as a
matter of law because its actions respecting the PMWHR challenged in
Tillett’s cases were neither arbitrary, capricious, an abuse of discretion,
nor otherwise contrary to the law. Id.
Tillett first responds that the Court has jurisdiction. Tillett’s
Resp. Br. (ECF 37) at 1. She argues that she has alleged malfeasance
and corruption by BLM and that the Court has jurisdiction over all
issues of malfeasance and corruption. Id. Tillett further argues that
this Court’s jurisdiction is also rooted in her First Amendment right to
petition the government for a redress of grievances and her Fifth
Amendment right to due process. Id. She argues that all parties’
“evasion of review” of Constitutional issues amounts to additional
violations of her Fifth Amendment right to due process. Id. And, she
argues that BLM “routinely violate[s] the Constitution of the United
States[.]” Id.
Second, Tillett claims that BLM violated her First Amendment
rights when it “illegally darted the nine mares over a span of years &
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with multiple warnings of the illegality of it all – i.e., not a mistake as
[BLM] claim[s] – it’s general policy.” Id. at 2. Tillett further claims
that BLM violated her Fifth Amendment right to due process when it
“failed to follow proper procedures, the law, & [its] own rules &
regulations[,]” and because it is “utilizing an evasion of review of
Constitutional issues – basically a series of cover-ups to suppress these
facts.” Id.
Third, Tillett argues that BLM’s actions respecting the PMWHR
were “arbitrary and capricious” under the APA because: (1) BLM
committed perjury, which amounted to both a clear error in judgment
and arbitrary and capricious behavior; (2) BLM engaged in malfeasance
and corruption, including: (a) withholding evidence; (b) fraud; ©)
“cook’n-the-books”; (d) “tampering with evidence/data after the fact”; (e)
routine violations of the Constitution, including evasions of review of
Constitutional issues – i.e., cover-ups; (f) violating BLM’s own rules and
regulations; and (g) lying to this Court; and (3) BLM has engaged in
“felonious behavior patterns that [Tillett has] been tracking and
presenting to all and sundry for years.” Id. at 3. Tillett argues that she
thinks “it’s time this Court quits defending and protecting the
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malfeasant status quo and starts defending and protecting the
Constitution – its mandate.” Id.
Fourth, Tillett argues that BLM has not been in compliance with
the Wild Horse Act “for decades[ ]” and has “systematically & actively
violated this Act, with impunity.” Id. at 4.
Fifth, Tillett argues that BLM scientists have concluded that the
best way to maintain variation in genetics of the herd is to increase
current population size rather than decrease it. Id. She also argues
that she believes that the PMWHR is in good condition and that the
horses are not the principal cause of variability in vegetation dynamics
but rather fluctuation in precipitation has been, a fact the BLM “has
known . . . for the past two decades, and has ignored this important
scientific fact – more lying & cook’n-the-books by [BLM] in order to
push [its] agenda [to] zero out the wild horses on the PMWHR . . . in
their own sanctuary.” Id. at 4-5.
Sixth, Tillett argues that BLM’s “ongoing illegal darting of the
mares with total foreknowledge & warnings” was not a mistake as BLM
claims, but rather was its general policy. Id. at 5. She argues that this
illegal darting amounts to arbitrary and capricious behavior and
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violates the First and Fifth Amendments to the Constitution. Id.
Seventh, Tillett argues “reasonable doubt exists as to the validity
of the data sets admitted in the Administrative Record in support of the
illegal & unnecessary 2015 Gather.” Id. She further argues that “the
data sets were proved to be purely BLM subjective and unscientific at
best.” Id.
Finally, in her “Disputed Facts Brief” filed with her response
brief, Tillett modifies that portion of her request for relief in which she
seeks restitution. First, she amends her request for restitution by
adding to the amount she originally claimed in her Complaints.
Second, she amends her request to add some conditions, including her
offer to hold any restitution award “in abeyance” until the investigation
she requests is complete. ECF No. 38 at 8-10.
In reply, BLM argues that: (1) Tillett failed in her response brief
to provide any authority for her claimed entitlement to money damages
or restitution, BLM’s Reply Br. (ECF No. 39) at 1; (2) Tillett failed to
assert a jurisdictional basis for the Court to order an investigation, id.;
(3) although Tillett now asserts constitutional claims not raised in her
Complaints, BLM has not waived its sovereign immunity for a claim
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against it seeking money damages, id. at 1-2; (4) to the extent Tillett
asserts claims against the Interior Board of Land Appeals, such claims
would be barred by judicial immunity, id. at 2; (5) Tillett has not been
denied any constitutional rights and has been afforded due process
through these proceedings, id.; (6) Tillett’s only avenue for review is
under the APA’s limited waiver of sovereign immunity, but such APA
review does not allow for money damages or a court-ordered
investigation, id.; (7) BLM took the requisite “hard look” at the need for
a gather, did not misrepresent information concerning the 2015 gather,
did not tamper with evidence, and did not inappropriately fail to
consider the impacts of other grazing species upon the PMWHR, id. at
3-10; (8) BLM properly exercised its discretion in observing range usage
to protect both the PMWHR and the horses by conducting a gather to
move the herd population closer to the existing AML, id. at 10-11; (9)
BLM appropriately considered genetic diversity in both the Gather DR
and Fertility Control DR, even though the Wild Horses Act does not
require such consideration, id. at 11-12; and (10) BLM properly
considered and implemented the Fertility Control DR, id. at 12-14.
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IV.
Legal Standards
A.
Summary Judgment Standard
“The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A
party seeking summary judgment always bears the initial
responsibility of informing the court of the basis for its motion, and
identifying those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if
any, which it believes demonstrate the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Material facts are those which may affect the outcome of the case.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as
to a material fact is genuine if there is sufficient evidence for a
reasonable fact-finder to return a verdict for the nonmoving party. Id.
If the moving party meets its initial responsibility, the burden then
shifts to the opposing party to establish that a genuine issue of fact
exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986).
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“In reviewing an administrative agency decision, summary
judgment is an appropriate mechanism for deciding the legal question
of whether the agency could reasonably have found the facts as it did.”
City & Cty. of San Francisco v. United States, 130 F.3d 873, 877 (9th
Cir. 1997) (internal citation omitted).
B.
The APA
The Wild Horses Act does not provide a standard for judicial
review. Thus, the APA governs the Court’s review of BLM’s actions. In
Defense of Animals, 751 F.3d at 1061 (citing Ocean Advocates v. U.S.
Army Corps of Eng’rs, 402 F.3d 846, 858-59 (9th Cir. 2005)). Under the
APA, the Court “must set aside the BLM’s actions, findings, or
conclusions if they are ‘arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.’” Id. (quoting 5 U.S.C. §
706(2)(A)). Courts must engage in a “searching and careful” review, but
“the arbitrary and capricious standard is narrow, and [a] court cannot
substitute its own judgment for that of the agency.” Id. (quoting Ocean
Advocates, 402 F.3d at 858 (citation omitted)). “An agency’s decision is
arbitrary and capricious if it fails to consider important aspects of the
issue before it, if it supports its decisions with explanations contrary to
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the evidence, or if its decision is either inherently implausible or
contrary to governing law.” Id. (quoting The Lands Council v. Powell,
395 F.3d 1019, 1026 (9th Cir. 2005)).
Review is highly deferential to the agency’s expertise, and
presumes the agency action to be valid. Arkansas v. Oklahoma, 503
U.S. 91, 112 (1992). The agency, however, must articulate a rational
connection between the relevant data and articulate a satisfactory
explanation for its action including a “rational connection between the
facts found and the choice made.” Id.; see also Midwater Trawlers Coop v. Dep’t of Commerce, 282 F.3d 710, 716 (9th Cir. 2002).
V.
Discussion
A.
Court Lacks Jurisdiction Respecting Tillett’s Claims
for Restitution and Investigation
As an initial matter, the Court concludes that it lacks subject
matter jurisdiction to entertain Tillett’s claims for restitution or for the
ordering of an investigation. Tillett has failed to provide any legal
authority or jurisdictional basis for either remedy. The Court is
mindful that Tillett relies on the First, Fifth, and Fourteenth
Amendments to the U.S. Constitution in invoking this Court’s subject
matter jurisdiction, as well as a general allegation of “evasion of
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review” of Constitutional issues that she claims amounts to a violation
of her Fifth Amendment right to due process. See ECF No. 37 at 1. But
her reliance is misplaced.
First, respecting Tillett’s claims for restitution which, in the cases
at hand, are in the nature of claims for money damages, “[i]t is
axiomatic that the United States may not be sued without its consent
and that the existence of consent is a prerequisite for jurisdiction.”
Jachetta v. United States, 653 F.3d 898, 903 (9th Cir. 2011) (quoting
United States v. Mitchell, 463 U.S. 206, 212 (1983)). Waiver of
sovereign immunity cannot be implied, but “must be unequivocally
expressed in statutory text.” Jachetta, 653 F.3d at 903 (quoting Lane v.
Pena, 518 U.S. 187, 192 (1996)). Absent waiver, sovereign immunity
shields the United States and its agencies from suit. Meyer, 510 U.S. at
475.
The United States – in this case BLM – has not waived its
sovereign immunity for actions seeking damages for constitutional
violations. See Holloman v. Watt, 708 F.2d 1399, 1401-02 (9th Cir. 1983)
(sovereign immunity not waived for claim under the Constitution for
damages against the United States); Arnsberg v. U.S., 757 F.2d 971,
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980 (9th Cir. 1984) (same). As discussed below, the APA provides a
limited waiver of BLM's sovereign immunity respecting some of
Tillett's allegations. But the APA does not provide a waiver of
sovereign immunity for money damages claims. See Tucson Airport
Authority v. General Dynamics Corp., 136 F.3d 641, 644 (9th Cir. 1998).
Thus, sovereign immunity applies here. The Court lacks subject matter
jurisdiction over Tillett’s claim for restitution against BLM.
Second, respecting Tillett’s claim for an investigation, the same
conclusion is reached. BLM has not waived sovereign immunity for
actions against it seeking an independent investigation as a remedy.
BLM has sovereign immunity respecting this claim, and the Court
lacks subject matter jurisdiction over it.
For the foregoing reasons, the Court will recommend that BLM’s
summary judgment motion be granted to the extent it relates to
Tillett’s claims for restitution and an investigation.
B.
The APA
Construing Tillett’s pleadings and other submissions liberally, the
Court concludes that her remaining claims and associated allegations
mostly likely are intended to comprise a challenge to final agency
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action under the APA. As noted above, the APA governs the Court’s
review of BLM’s actions, which the Court must not disturb unless it
finds that they are “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” In Defense of Animals, 751 F.3d
at 1061 (quoting 5 U.S.C. § 706(2)(A)). For the reasons that follow, the
Court concludes that BLM’s actions are supported by the
administrative record, and should not be disturbed. Thus, the Court
recommends that summary judgment be granted in BLM’s favor.
The Wild Horses Act affords broad discretion to BLM to manage
wild horses and ranges to maintain a healthy ecological balance
between the horses, other species, and the range itself. It provides, in
relevant part, as follows:
All wild free-roaming horses . . . are hereby declared to be
under the jurisdiction of the Secretary for the purpose of
management and protection in accordance with the
provisions of this chapter. The Secretary is authorized and
directed to protect and manage wild free-roaming horses . . .
as components of the public lands, and he may designate
and maintain specific ranges on public lands as sanctuaries
for their protection and preservation, where the Secretary
after consultation with the wildlife agency of the State
wherein any such range is proposed and with the Advisory
Board established in section 1337 of this title deems such
action desirable. The Secretary shall manage wild
free-roaming horses . . . in a manner that is designed to
achieve and maintain a thriving natural ecological balance
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on the public lands. . . . All management activities shall be
at the minimal feasible level and shall be carried out in
consultation with the wildlife agency of the State wherein
such lands are located in order to protect the natural
ecological balance of all wildlife species which inhabit such
lands, particularly endangered wildlife species. Any
adjustments in forage allocations on any such lands shall
take into consideration the needs of other wildlife species
which inhabit such lands.
16 U.S.C. § 1333(a).
The Wild Horses Act also describes agency authority to determine
whether too many horses occupy a given area, and to take action as
necessary, as follows:
The Secretary shall maintain a current inventory of wild
free-roaming horses . . . on given areas of the public lands.
The purpose of such inventory shall be to: make
determinations as to whether and where an overpopulation
exists and whether action should be taken to remove excess
animals; determine appropriate management levels of wild
free-roaming horses . . . on these areas of the public lands;
and determine whether appropriate management levels
should be achieved by the removal or destruction of excess
animals, or other options (such as sterilization, or natural
controls on population levels).
16 U.S.C. § 1333(b)(1).
The Wild Horses Act further provides that management of wild
horses is to be accomplished within the “multiple-use management
concept for the public lands[.]” See 16 U.S.C. § 1332©) (defining “range”
as “the amount of land necessary to sustain an existing herd or herds of
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wild free-roaming horses . . ., which does not exceed their known
territorial limits, and which is devoted principally but not necessarily
exclusively to their welfare in keeping with the multiple-use
management concept for the public lands[.]”); 16 U.S.C. § 1332(f)
(defining “excess animals” as “wild free-roaming horses . . . (1) which
have been removed from an area by the Secretary pursuant to
applicable law or, (2) which must be removed from an area in order to
preserve and maintain a thriving natural ecological balance and
multiple-use relationship in that area.”).
The federal regulations promulgated in relation to the Wild
Horses Act also demonstrate the level of discretion that BLM enjoys in
managing wild horses and the ranges they occupy. They provide, in
relevant part, that “[w]ild horses . . . shall be managed as selfsustaining populations of healthy animals in balance with other uses
and the productive capacity of their habitat . . . [and] shall be
considered comparably with other resource values in the formulation of
land use plans.” 43 C.F.R. §§ 4700.0-6(a) and (b). And, the regulations
further provide that BLM, through its authorized officer, is to prepare a
herd management area plan and in it the authorized officer is to
“consider the appropriate management level for the herd, the habitat
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requirements of the animals, the relationships with other uses of the
public and adjacent private lands, and the constraints contained in [43
C.F.R.] § 4710.4.” That section provides that wild horse management
must “be undertaken with the objective of limiting the animals’
distribution to herd areas[ ]” and must be at the “minimum level
necessary to attain the objectives identified in approved land use plans
and herd management area plans.” 43 C.F.R. § 4710.4.
As noted above, and relevant to the cases at hand, the Court has
reviewed the administrative records. Having done so, it concludes that
BLM properly applied the foregoing statutes and regulations in
adopting the fertility control and gather decisions at issue to assist in
implementing the 2009 HMAP and its AML of 90 to 120 horses
(excluding the current year’s foals). In doing so, the Court concludes
that BLM’s decisions were not arbitrary, capricious, an abuse of its
discretion, or otherwise contrary to the law. And, the Court is not
persuaded by Tillett’s arguments, as discussed below.
Tillett first argues that BLM illegally darted nine mares over a
span of years and failed to follow proper procedures and its own rules
and regulations in doing so. CV 15-48, ECF No. 2 at 1-2; ECF No. 37 at
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2, 5. She argues that this illegal darting was not a mistake as BLM
claims, but rather was BLM’s general policy. ECF No. 37 at 2, 5. And,
she argues, the illegal darting violated her First Amendment rights and
her Fifth Amendment right to due process. Id.
BLM does not dispute that some mares were given PZP doses that
may not have met the fertility control protocol. See BLM’s Stmt. of
Undisputed Facts (ECF No. 27) at ¶ 32. But BLM notes, with record
support, that Tillett did not raise this concern in her comments to the
EA, so BLM did not address it in its responses to comments. Id. at ¶
31. Also, BLM has presented evidence that approximately 277 doses of
PZP were applied between 2011 and May 2015 under the 2011 fertility
control decision. Id. Of those, 98 percent were applied correctly. Id.
And of the mares who were darted not in conformity with the protocol,
all have produced at least one foal. Id. at ¶ 32.
On this record, the Court concludes that Tillett’s allegation that
BLM “illegally darted” mares and has engaged in an “ongoing pattern
of cover-ups” in implementing the Fertility Control DR is not
supported. And, Tillett’s First and Fifth Amendment rights were not
violated. As noted, due process is not implicated because it is
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undisputed that Tillett did not raise these concerns in her comments to
the EA. In each instance in which a mare was darted when it should
not have been, BLM took corrective action and documented the
mistakes. This action, coupled with the 98 percent correctness rate in
adhering to darting protocols over approximately four years, and the
result that all misdarted mares produced foals, demonstrates that
BLM’s actions were not arbitrary, capricious, or an abuse of discretion.
Second, as detailed above, Tillett generally argues that BLM’s
actions respecting the PMWHR were arbitrary and capricious because
BLM committed perjury, engaged in malfeasance and corruption, and
engaged in “felonious behavior patterns[.]” ECF No. 37 at 3. Tillett’s
arguments are vague, speculative, and non-specific. Thus, the Court
finds them unpersuasive.
Third, Tillett argues that BLM has not complied with the Wild
Horses Act for decades. Id. at 3-4. Quoting from the Wild Horses Act
language, she argues that BLM is supposed: (1) to provide wild horses
with a sanctuary; (2) to protect the horses; and (3) to carry out all
management activities at the “minimal feasible level.” Id.
The Ninth Circuit, in In Defense of Animals, supra, addressed a
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similar argument when plaintiffs in that case argued that BLM failed
to manage horses and burros at a “minimal feasible level” when it
conducted a helicopter gather and capture and injected mares with
immunocontraceptives. 751 F.3d at 1066. The court acknowledged
that the Wild Horses Act does provide that “[a]ll management activities
shall be at the minimal feasible level.” But the court rejected plaintiffs’
argument noting “[p]laintiffs do not adequately take into account the
full statutory language, which provides that ‘[a]ll management
activities shall be at the minimal feasible level and shall be carried out
. . . in order to protect the natural ecological balance of all wildlife
species which inhabit such lands. . . .’” Id. (quoting 16 U.S.C. § 1333(a))
(emphasis in original). The Ninth Circuit further stated:
Given BLM’s determination that the overpopulation of wild
horses and burros threatened the natural ecological balance
on the HMA [herd management area], it reasonably
determined that the gather was necessary to restore the
AMLs and thereby protect the HMA’s natural ecological
balance.
Moreover, the BLM had simultaneous duties not only
“to achieve and maintain a thriving natural ecological
balance” on the HMA, § 1333(a), but also to remove excess
animals “immediately” when the BLM determined “that an
overpopulation exist[ed].” § 1333(b)(2). Congress could not
have intended that the “minimal” management requirement
would force the BLM to ignore these other statutory
mandates. Given that this court must defer to the BLM’s
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expertise under the APA, see Salmon River Concerned
Citizens v. Robertson, 32 F.3d 1346, 1356 (9th Cir. 1994), we
hold that the BLM reasonably interpreted its statutory
directive that management be at a “minimal feasible level”
when it decided to implement the Gather Plan in light of the
overpopulation at the time of the gather and the fact that
inaction would have led only to further detrimental
population increases.
Id. Precisely the same conclusion is appropriate in the cases at hand.
Tillett’s reliance on only select language from the Wild Horses Act fails
to capture the more comprehensive nature of the BLM’s responsibility
for management on the PMWHR. Consequently, her argument is not
persuasive.
Fourth, Tillett argues that the BLM failed to properly consider
genetic diversity in both the Gather DR and Fertility Control DR. ECF
No. 37 at 4. And, she argues, there is reason to dispute the data upon
which BLM relied for the 2015 Gather. Id. at 5-6. The Court is not
persuaded.
The 2015 Gather EA expressly provides:
BLM’s Most Recent Genetic Analysis Conducted by Dr. Gus
Cothran
This analysis is based upon samples provided from removed
horses in the summer of 2012. Dr. Cothran processes these
samples for the BLM and it is BLM data and information.
The horses removed during the 2012 gather were
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individuals from highly represented and interrelated
bloodlines. Removal was based upon kinship or “bloodlines”
as identified in the HMAP. Seven mare/foal pairs were
sampled along with numerous siblings and half siblings.
Only one mare and her foal from a rare line were removed in
2012 and that was due to health concerns. Although Dr.
Cothran’s report is very factual on the genetic analysis and
BLM does not dispute Dr. Cothrans [sic] expertise as an
equine geneticist the interpretation is lacking information
about the herd demographics and kinship. The organization
with the kinship expertise and information is the Pryor
Mountain Wild Mustang Center which provided much
advice on lineage. In contrast, the BLM believes the results
let us know we did in fact remove the correct horses in 2012.
GAR 22.
This excerpt from the 2015 Gather EA shows that BLM did
consider Dr. Cothran’s report. As noted, although BLM found the
report factual respecting the genetic analysis, it concluded that the
report was not based on a sampling representing correct herd
demographics and kinship. As mentioned above, the Court must afford
the BLM’s expertise deference under the APA. See Salmon River
Concerned Citizens, 32 F.3d at 1356. In doing so, the Court cannot
conclude on this record that BLM’s consideration of Dr. Cothran’s
report was arbitrary, capricious, an abuse of discretion, or otherwise
contrary to law.
And, to the extent Tillett questions the fertility control data upon
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which BLM relied based on comments made by Ms. Devlin (ECF No. 37
at 5-6), the Court is not persuaded. The record reflects that the fertility
control administered on the PMWHR is no longer experimental and has
been approved by the Environmental Protection Agency as ZonaStat-H.
See FAR 24. Also, the record indicates that the Humane Society of the
United States supports use of fertility control on the PMWHR under
the 2015 Fertility Control DR. FAR 180-83. Finally, BLM considered
several different studies in concluding that fertility control was an
acceptable population-control method and Tillett has provided no
competent evidence to the contrary. See, e.g., FAR 5 (noting that the
2009 HMAP’s AML of 90-120 horses was based, in part, on the
condition of the PMWHR as found in a 2004 survey and assessment of
the PMWHR conducted by the Natural Resources Conservation Service
(“NRCS”). This NRCS survey and the use of fertility control was the
subject of prior litigation in a case in which this Court granted
judgment in favor of BLM’s decision to utilize fertility control. See
Cloud Foundation, Inc. v. Kempthorne, CV 06-111-BLG-RFC-CSO (ECF
Nos. 129, 131, and 133)).
Fifth, Tillett argues that the PMWHR is in good condition based
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on her own observations over many years and that there is “nothing
wrong with [it] & never was.” ECF No. 37 at 4-5. The Court cannot
conclude, however, that Tillett’s observations, even for a long period of
time, somehow render incorrect BLM’s conclusions respecting the
condition of the PMWHR. Tillett has not pointed to any record
evidence supporting her position. On the other hand, the 2009 HMAP
identified forage species and the utilization rate after monitoring and
range studies. FAR 684-88. The monitoring has continued, and BLM’s
data shows that damage to the PMWHR was occurring with a
population of 170 adult horses. GAR 17. Affording BLM discretion to
rely on its own experts and data, the Court cannot conclude that BLM
acted improperly in not accepting Tillett’s observation that there is
nothing wrong with the PMWHR.
Finally, as noted, Tillett argues that she is modifying her request
for restitution by adding to the amount she originally claimed in her
Complaints and adding some conditions. ECF No. 38 at 8-9. The Court
concludes that she should not be permitted to do so for two reasons.
First, the Court already has discussed above that it is without
jurisdiction over her claim for restitution.
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Second, Tillett cannot amend her Complaints in either a summary
judgment motion or in a response to such a motion. As this Court
recently observed in Elk Petroleum, Inc. v. Rocky Mountain Regional
Director, 2016 WL 676362, *5 (D. Mont., Feb. 18, 2016):
When a “complaint does not include the necessary factual
allegations to state a claim, raising such claim in a summary
judgment motion is insufficient to present the claim to the
district court.” Navajo Nation v. U.S. Forest Serv., 535 F.3d
1058, 1080 (9th Cir. 2008). A party may not effectively
amend a complaint by raising a new theory in a summary
judgment motion. La Asociacion de Trabajadores de Lake
Forest v. City of Lake Forest, 624 F.3d 1083, 1089 (9th Cir.
2010). “Simply put, summary judgment is not a procedural
second chance to flesh out inadequate pleadings.” Wasco
Products, Inc. v. Southwall Techs., Inc., 435 F.3d 989, 992
(9th Cir. 2006); see also Novoa v. City & Cty. of San
Francisco, 2015 WL 5169123, at *6 (N.D. Cal. Sept. 3, 2015)
(“Plaintiff failed to include any factual allegations related to
Defendant’s violation of his due process right and did not
identify it as a cause of action in the complaint. Plaintiff
also did not seek leave to amend his complaint to include
such allegations. For that reason alone, Defendants are
entitled to summary judgment on Plaintiff’s due process
claim”).
Here, Tillett cannot amend her Complaints simply by stating in
her response to BLM’s summary judgment motion that she is doing so.
VI.
Conclusion
Based on the foregoing, IT IS RECOMMENDED that BLM’s
combined motion for summary judgment on consolidated cases (ECF
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No. 25) be GRANTED.
NOW, THEREFORE, IT IS ORDERED that the Clerk shall
serve a copy of the Findings and Recommendation of United States
Magistrate Judge upon the parties. The parties are advised that,
pursuant to 28 U.S.C. § 636, any objections to the findings and
recommendations must be filed with the Clerk of Court, and copies
served on opposing counsel, within fourteen (14) days after entry
hereof, or objection is waived.
DATED this 4th day of April, 2016.
/s/ Carolyn S. Ostby
United States Magistrate Judge
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