Friends of Animals v. Sparks et al
Filing
45
ORDER granting in part and denying in part 27 FOA's Motion for Summary Judgment and 35 BLM's Motion for Summary Judgment. FOA shall prepare an appropriate Judgment consistent with this Opinion, and after conferring with counsel for BLM, shall submit it to the Court for signature. Signed by Judge Susan P. Watters on 7/29/2016. (JDR, )
FILED
JUL 2 9 201&
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
Clerk, U S District Court
District Of Montana
Billings
FRIENDS OF ANIMALS,
CV 15-59-BLG-SPW
Plaintiff,
ORDER
vs.
JAMES SPARKS, in his official
capacity as Billings Field Officer
Manager; THE UNITED STATES
BUREAU OF LAND
MANAGEMENT, an agency of the
United States,
Defendants.
Plaintiffs Friends of Animals ("FOA") filed this action on June 26, 2015, to
stop a planned round-up of wild horses scheduled for August 3, 2015, at the Pryor
Mountain Wild Horse Range ("the Horse Range"). FOA argued that the planned
gather violated the Wild Free-Roaming Horses and Burros Act ("Wild Horse
Act"), 16 U.S.C. § 1331 et seq., and the National Environmental Policy Act
("NEPA"), 42 U.S.C. § 4331 et seq.
Given the impending gather, FOA moved for preliminary injunctive relief on
July 10, 2015. (Doc. 11). Following briefing and a hearing on FOA's motion, the
Court found that FOA was unlikely to succeed on the merits of its claim and issued
a written order denying the request for injunctive relief. (Doc. 18). On August 20,
2015, this Court issued a scheduling order in this matter. (Doc. 21 ). In accordance
with the deadlines in that order, Defendants filed the administrative record on
September 28, 2015. (Doc. 23). Defendants supplemented the administrative
record on November 20, 2015. (Doc. 24). FOA filed its motion for summary
judgment on December 18, 2015, (Doc. 27), and Defendants filed their crossmotion for summary judgment on January 29, 2016. (Doc. 35).
As set forth below, the Court will grant in part FOA's motion for summary
judgment, and deny in part the government's motion for summary judgment, and
set aside BLM's decision. Because the arguments made by the parties are very
similar to the arguments made in connection with the earlier request for injunctive
relief, this Order closely follows the Court's previous July 30, 2015, order.
I.
Legal Framework
A.
National Environmental Policy Act
The National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 43214370, "the broadest and perhaps most important of federal environmental
legislation," was enacted to protect the environment by requiring that a federal
agency "consider every significant aspect of the environmental impact of a
proposed action ... [and] inform the public that it has indeed considered
environmental concerns in its decisionmaking process." Earth Island Inst. v. U.S.
2
Forest Serv., 351 F.3d 1291, 1300 (9th Cir. 2003) (quoting Kern v. U.S. Bureau of
Land Mgmt., 284 F.3d 1062, 1066 (9th Cir. 2002). The policy behind NEPA is to
ensure that an agency has at its disposal all relevant information about
environmental impacts of a project before the agency embarks on the project.
Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1355 (9th Cir.
1994 ). It is also intended to assure that the evidence on which an agency bases its
decision is made available to the public. Robertson v. Methow Valley Citizens
Council, 490 U.S. 332, 349 (1989).
Accordingly, NEPA "ensure[s] a process, not[] any result." Blue Mountains
Biodiversity Project v. Blackwood, 161 F.3d 1208, 1212 (9th Cir.1998). NEPA
does not set out substantive environmental standards, but instead establishes
"action-forcing" procedures that require agencies to take a "hard look" at
environmental consequences. Metcalf v. Daley, 214 F.3d 1135, 1141-42 (9th Cir.
2000) (quoting Robertson, 490 U.S. at 348). Under these procedures, an agency
must identify those actions which normally require an environmental impact
statement ("EIS"). See 40 C.F.R. § l 501.4(a)(l ). In order to determine whether a
particular proposed action requires the preparation of an EIS, agencies perform an
environmental assessment ("EA").
An EA is a public document (shorter than an EIS) that contains information
pertaining to the need for the proposed action, other alternatives, the environmental
3
impact of the proposal and its alternatives, and other relevant information. See 40
C.F.R. § 1501.4 (Council on Environmental Quality ("CEQ") regulations
implementing NEPA); Metcalf, 214 F.3d at 1142.
An agency may prepare an EA for one of several reasons: ( 1) to provide
evidence and analysis that establish whether or not an EIS or a Finding of No
Significant Impact ("FONSI") should be prepared; (2) to help the agency comply
with NEPA when no EIS is necessary; and (3) to facilitate preparation of an EIS
when one is necessary. See 40 C.F.R. § 1508.9(a).
NEPA requires federal agencies to "study, develop, and describe appropriate
alternatives to recommended courses of action in any proposal which involves
unresolved conflicts concerning alternative uses of available resources." 42 U.S.C.
§ 4332(2)(E). This "alternatives provision" applies whether an agency is preparing
an EIS or an EA and requires the agency to give full and meaningful consideration
to all reasonable alternatives. Native Ecosystems Council v. US. Forest Serv., 428
F.3d 1233, 1245 (9th Cir. 2005). However, "an agency's obligation to consider
alternatives under an EA is a lesser one than under an EIS." Id.at 1246. When an
agency prepares an EIS, the agency must "[r]igorously explore and objectively
evaluate all reasonable alternatives," 40 C.F.R. § 1502.14(a), while in an EA, an
agency "only is required to include a brief discussion of reasonable
alternatives." N. Idaho Cmty. Action Network v. US. Dep 't of Transp., 545 F.3d
4
1147, 1153 (9th Cir. 2008) (citing 40 C.F.R. § 1508.9(b)). NEPA does not require
federal agencies to assess, consider and respond to public comments on an EA to
the same degree as it does for an EIS. In Def ofAnimals, Dreamcatcher Wild
Horse & Burro Sanctuary v. U.S. Dep't ofInterior, 751F.3d1054, 1073 (9th Cir.
2014).
Because NEPA is essentially a procedural statute, judicial "review of agency
decision-making under NEPA is limited to the question of whether the agency took
a 'hard look' at the proposed action as required by a strict reading ofNEPA's
procedural requirements." Bering Strait Citizens for Resp. Dev. v. U.S. Army Corps
ofEng'rs, 524 F.3d 938, 947 (9th Cir. 2008). "An agency's decision can be set
aside only ifthe agency relied on factors Congress did not intend it to consider,
entirely failed to consider an important aspect of the problem, or offered an
explanation that runs counter to the evidence before the agency or is so implausible
that it could not be ascribed to a difference in view or the product of agency
expertise." Earth Island Institute, 697 F.3d at 1013.
B.
The Wild Horse Act
Congress passed the Wild Horse Act, Pub. L. No. 92-195, 85 Stat. 649
( 1971 ), to protect wild free-roaming horses from "capture, branding, harassment,
or death." 16 U.S.C. § 1331; see also Kleppe v. New Mexico, 426 U.S. 529, 535-36
( 1976) (citing legislative history). The Act grants the Secretary of the Interior
5
jurisdiction over all wild free-roaming horses and burros on federal lands and
directs the Secretary to manage them "in a manner that is designed to achieve and
maintain a thriving natural ecological balance on the public lands." 16 U.S.C. §
l 333(a).
Section 1333(a) provides that "[t]he Secretary shall manage wild freeroaming horses and burros in a manner that is designed to achieve and maintain a
thriving natural ecological balance on the public lands" and that "[a]ll management
activities shall be at the minimal feasible level ... in order to protect the natural
ecological balance of all wildlife species which inhabit such lands, particularly
endangered wildlife species." Id. The BLM uses localized "herd management
areas" ("HMAs"), id. § 1332(c); 43 C.F.R. § 4710.3-1, established in accordance
with broader land use plans, to carry out this plan. Id. § 4710.1.
As the Secretary's delegate, the BLM manages the wild horses in
accordance with 16 U.S.C. 1333, et seq. Accordingly, BLM must maintain a
current inventory of wild horses so that it can "make determinations as to whether
and where an overpopulation exists and whether action should be taken to remove
excess animals; determine appropriate management levels [("AML")] of wild freeroaming horses [] on these areas of public lands; and determine whether
appropriate management levels should be achieved by the removal or destruction
6
of excess animals, or other options (such as sterilization, or natural controls on
population levels)." Id. § 1333(b)(l).
The BLM defines the AML as "the number of wild horses that can be
sustained within a designated HMA which achieves and maintains a thriving
natural ecological balance in keeping with the multiple-use management concept
for the area." In Def ofAnimals, 751 F.3d at 1072. The Ninth Circuit describes the
AML as "a vehicle used [by the BLM] to move towards a thriving natural
ecological balance by which the BLM is alerted to address population imbalance."
Id.
When the BLM determines "that an overpopulation exists on a given area of
the public lands and that action is necessary to remove excess animals," the Wild
Horse Act requires the BLM to "immediately remove excess animals from the
range so as to achieve the [AML]." 16 U.S.C. § 1333(b)(2). The term "excess
animals" is defined as "wild free-roaming horses or burros ( 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." Id. § 1332(f). Before
taking such action, the BLM prepares a detailed "gather" plan, including a NEPA
compliant EA. Fund for Animals, Inc. v. US. Bureau ofLand Mgmt., 460 F.3d 13,
16 (D.C. Cir. 2006).
7
II.
Factual Background
This case arises from the BLM's 2015 decision to remove excess horses
from the Horse Range, which spreads over 38,000 acres in Montana and Wyoming.
As part of its management obligations, BLM issued a herd management area plan
("HMAP") in 1984 establishing an AML for the Horse Range at 115-127 wild
horses. (Doc. 24 at BLM002717). In 1992, the BLM modified the 1984 HMAP
and reestablished the AML at 85 to 105 wild horses. (Id. at BLM002718,
BLM00272 l ). The 1992 HMAP governed wild horse management in the Horse
Range until 2009. (Id. at BLM002718). BLM's objective during this period was to
manage for a slight upward trend in range health. (Id.)
In 2004, the National Resource Conservation Service (NRCS) completed a
survey and assessment of the Horse Range. (Id. at BLM0027 l 7). According to the
survey and assessment, the horses were affecting the land and management
practices needed adjusting. (Id.) This prompted the BLM to evaluate the Horse
Range and analyze data points to determine if it was meeting its management
objectives and rangeland health standards. (Id; see also 2008 Horse Range
Evaluation Doc. 11-8, 1-86). Based on its evaluation, the NRCS Survey and
Assessment, and public comments, BLM determined that it needed to shift its
focus from trying to improve the range condition to managing for stabilization of
the ecological conditions. (Doc. 24 at BLM002717). This new management
8
objective included "maximizing the number of wild horses" that BLM could
managed on the range. (Id.)
In its evaluation, BLM noted that for the past several years, the wild horse
population on the range had substantially exceeded the then-existing AML of 85105. (Id. at BLM002784). BLM determined that increasing the AML would
"result in a higher level of genetic exchange and variation," and that realigning the
population with the new AML would assist in regaining management objectives.
(Id. at BLM002783-84). BLM issued the Pryor Mountain Wild Horse
Range/Territory EA and HMAP ("2009 EA") which authorized an increase in the
AML to 90 to 120 horses. (Id. at BLM002715). In the 2009 Record of Decision
("ROD"), BLM stated that, "[ m]onitoring data will continue to be collected and the
AML will be recalculated within five years or after the revision to the Billings
RMP [Resource Management Plan], whichever comes first." (Id. at BLM002722).
In 2012, BLM conducted another wild horse gather. BLM tracked the
range's forage utilization rate, noting that it was closer to meeting the management
objectives when the horse populations were kept at the established AML of90-120
horses. (See id. at BLM003212). Based on that determination, in its 2012 NonHelicopter Gather EA ("2012 EA"), BLM reaffirmed the AML established during
the 2009 EA/HMAP process. (See id.)
9
BLM monitored the horse population in 2013, 2014, and 2015. (Id. at
BLMOOOOl 7). In 2015, BLM's monitoring data showed that use levels were closer
to the objective in 2010 and 2013 when the wild horse population was closer to the
2009 AML. (Id. at BLMOOOO 17). According to BLM, "this data reaffirm[ ed] the
current AML as determined in the 2009 EA." (Id.) BLM again determined that the
range's population of 170 horses was "beyond the capacity of the range in order to
protect it from deterioration," and that measures were needed to protect the range
from deterioration. (Id.) BLM again reaffirmed the AML because utilization levels
were closer to the objective when wild horse population was closer to the AML.
(See id.) BLM noted that even with the use of fertility control, heavy and severe
use of vegetation was occurring. (Id. at BLM000018). BLM stated the proposed
action would "help protect rangelands from deterioration from an overpopulation
of wild horses and help maintain a thriving natural ecological balance and multiple
use relationships." (Id).
Accordingly, BLM drafted the 2015 PMWHR Bait/Water Trapping Gather
Preliminary EA, considering three alternative management actions: (1) a "no
action" plan where it would conduct only fertility control but take no other action;
(2) its proposed action of gathering twenty-five (25) horses in addition to fertility
control; and (3) "Alternative A," introduced based on public comments proposing
smaller, incremental gathers. (Id. at BLM000023-25).
10
BLM stated its purpose for the 2015 Proposed Action "[was] to help meet
the goals and objectives of the [2009 HMAP] by helping to maintain the wild horse
AML. ... The [2009] HMAP identified the AML at 90-120 wild horses as the
carrying capacity in order to maintain ecological stability of the range and protect
the range from deterioration. The Proposed Action and Alternative in th[e 2015]
EA is needed to help maintain wild horse herd numbers at levels consistent with
the AML, to make progress toward standards of rangeland health and to achieve
objectives and decisions authorized in the 2009 EA and HMAP." (Id. at
BLM000020).
After considering public comments and the EA's analysis, BLM decided to
implement Alternative A and issued its Decision Record, Finding Of No
Significant Impact and Final Environmental Assessment ("2015 EA") on June 16,
2015. (Id. at BLM000003). Under that action, BLM would gather fifteen (15) to
twenty (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.
(Id. at BLM000023-25).
III.
Judicial review of agency action occurs under the APA
Because neither NEPA nor the Wild Horse Act contains provisions allowing
a private right of action, see Lujan v. National Wildlife Federation, 497 U.S. 871,
882 (1990), a party can obtain judicial review of alleged violations of those acts
11
only under the waiver of sovereign immunity contained within the Administrative
Procedure Act ("APA"), 5 U.S.C. §§ 701-706. Under the APA, the court must
determine ifthe agency action was "arbitrary and capricious," outside the scope of
the agency's statutory authority, or otherwise not in accordance with the law.
Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1356 (9th Cir.
1994). An agency's action is arbitrary and capricious ifit fails to consider
important aspects of the issues before it, if it supports its decisions with
explanations contrary to the evidence, or if its decision is either inherently
implausible or contrary to governing law. The Lands Council v. Powell, 395 F.3d
1019, 1026 (9th Cir. 2005).
Review under this standard is narrow, and the court may not substitute its
judgment for the judgment of the agency. Lands Council v. McNair, 629 F.3d
1070, 1074 (9th Cir. 2010). Although the scope of review for agency action is
limited, agency action is not unimpeachable. The reviewing court must determine
whether there is a rational connection between the facts and resulting judgment so
as to support the agency's determination. Baltimore Gas and Elec. v. NRDC, 462
U.S. 87, 105-06 (1983).
To be reviewable under the AP A, the agency action at issue must be "final."
To be a "final agency action," the challenged agency action must represent the
consummation of the agency's decision making process. Oregon Natural Desert
12
Ass 'n v. United States Forest Service, 465 F.3d 977, 984 (9th Cir. 2006); see also
Bennett v. Spear, 520 U.S. 154 (1997) (final agency action is an action "from
which legal consequences will flow.") The action "must not be of a merely
tentative or interlocutory nature." Id. Rather, the court must look to see whether the
agency has "rendered its last word on the matter" to determine whether an action is
"final and ripe for judicial review." Id.
IV.
Discussion
FOA first argues that the AML on which BLM relied for its 2015 Removal
Decision had expired. As a result, FOA contends that BLM's excess animal
determination, which was premised in part on the AML, was wrong, thereby
rendering BLM's gather decision arbitrary and capricious under the Wild Horse
Act. (Doc. 28 at 14-15). BLM admits that it relied on the 2009 AML, in part, to
make its excess animal determination, but that its reliance was proper because the
promise to recalculate the 2009 AML was made in a land use plan, which BLM is
not obligated to follow. (Doc. 40 at 3). BLM also argues that it made its excess
determination based on a number of factors, not just the AML. (Doc. 36 at 23-25).
Because it is undisputed that BLM relied on the 2009 AML when making its
"excess" wild horse determination, the Court must determine whether BLM's
reliance on the 2009 AML to make the "excess" animal determination for the 2015
gather was contrary to governing law.
13
A.
The 2009 AML
FOA argues that BLM committed in its 2009 Record of Decision to
recalculate the AML before the 2015 Removal Decision. (Doc. 24 at
BLM002722). Because BLM did not meet this commitment, FOA argues that the
AML the BLM used to establish the existence of"excess animals" for the 2015
gather decision was outdated and therefore invalid. BLM argues that the 2009
AML was not outdated because (I) BLM reaffirmed the AML in 2012, (2) nothing
in the Wild Horse Act requires it to recalculate the AML prior to each gather
decision, and (3) it was not bound to its commitment in the 2009 ROD to
recalculate the AML within five years because the commitment was made in a land
use plan. The Court addresses these arguments in tum.
i.
Reaffirming the AML is not the same as recalculating the
AML.
BLM argues that its failure to recalculate the 2009 AML before 2015 is
absolved because it reaffirmed the 2009 AML in its 2012 EA and its 2015 EA.
(Doc. 36 at 18). In the 2009 ROD, however, BLM stated "the AML will be recalculated within five years or after the revision to the Billings RMP whichever
comes first." (Doc. 24 at BLM002722) (emphasis added). BLM's handbook does
not specifically distinguish between "reaffirming" and "recalculating" the AML.
BLM's handbook does note, however, that a separate decision process is required
to establish or adjust an AML:
14
"AML is not generally established or adjusted as part of the gather
planning (NEPA) process due to the in-depth and complex nature of
the analysis required .... If the authorized officer elects to formally
review AML as part of the same environmental document which
evaluates the proposed removal, the AML decision should be
separated from the gather/removal decision. This may be
accomplished by issuing separate Decision Records[.]"
(Doc. 11-12, ELM Wild Horses and Burros Handbook, H-4700 (July 2010), 18,
47). According to the handbook, establishing or adjusting the AML is a "multitiered analysis process" that desires a minimum of three to five years data. (Id. at
18, 67). BLM documents the results of this analysis in an HMA Evaluation Report
which is provided to the public for a 30 day review and comment period. (Id. at
75). In comparison, reaffirming or re-evaluating the AML occurs "when review of
resource monitoring and population inventory data indicates the AML may no
longer be appropriate." (Id. at 18.) No separate record of decision is necessary.
(Id.)
BLM conceded during oral argument that establishing or adjusting the AML
is equivalent to recalculating the AML, and is a much more involved process than
reaffirming the AML. BLM explained that compared to recalculation, which
requires more rigorous, in-depth evaluation of intensive monitoring data or land
health assessment, reaffirming the AML considers less information over a shorter
period of time. BLM also conceded at oral argument that it reaffirmed, and did not
recalculate, the 2009 AML prior to its 2015 decision. Accordingly, in the event
15
BLM is bound to its commitment in the 2009 ROD to recalculate the AML, simply
reaffirming the 2009 AML in 2012 and 2015 did not absolve BLM of its duty to
recalculate the AML.
ii.
The AML is not outdated under the Wild Horse Act
Next, BLM argues that it was not required to recalculate the 2009 AML
under the Wild Horse Act. (Doc. 36 at 18). BLM is correct. See In Def of
Animals, 751 F.3d at 1064 (nothing in the Act requires the BLM to determine new
AMLs based on current conditions every time the BLM decides to take action to
restore the already-established AMLs). Importantly, however, FOA relies on the
2009 ROD and BLM's commitment to recalculate the AML contained therein to
support its contention that BLM relied on an outdated AML, not the Wild Horse
Act.
iii.
The AML is outdated because the 2009 Record of Decision
committed BLM to recalculating the 2009 AML by 2014.
As noted above, BLM stated in its 2009 ROD that it would recalculate the
2009 AML within five years. The Court finds that federal regulations, case law,
and its own representations to the public bind BLM to this commitment.
The Code of Federal Regulations requires the BLM to follow through with
the commitments it makes in a record of decision. See 40 C.F.R. § 1505.3
("Mitigation and other conditions established in the environmental impact
statement or during its review and committed as part of the decision shall be
16
implemented by the lead agency or other appropriate consenting agency.")
(Emphasis added). "Regulations promulgated by administrative bodies ... are
usually given the force and effect of statutory law." K. Davis, Administrative Law
Treatise§ 7.13 (1979). This specifically includes Records of Decision. See e.g.,
Forty Most Asked Questions Concerning CEQ's National Environmental Policy
Act Regulations, 46 FR 18026-01(Mar.17, 1981) (CEQ statement that "the terms
of a Record of Decision are enforceable by agencies and private parties" and that a
"Record of Decision can be used to compel compliance with or execution of the
mitigation measures identified therein.").
Other courts that have analyzed this question agree that under § 1505.3, an
agency is bound to the commitments it makes in the ROD. See also Lee v. US. Air
Force, 220 F. Supp. 2d 1229, 1236 (D.N.M. 2002), affd, 354 F.3d 1229 (10th Cir.
2004) (agencies are "legally bound" by decision document and were "obligated" to
act as promised under 40 C.F.R. 1505.3 and are "subject to all recourse
contemplated by federal law and ... regulations" for failure to comply); see also
Sierra Club v. Jacobs, 2005 WL 6247793 at *7 (S.D. Tex., September 30, 2005)
(any mitigation measures set out in an environmental impact statement are
"directly binding" on Forest Service pursuant to 40 C.F .R. 1505 .3 ); Tyler v.
Cisneros, 136 F.3d 603, 308 (9th Cir. 1998) (agency must comply with mitigation
measures agreed to by agency in NEPA review process).
17
Perhaps most importantly, the BLM represents to the public that it
must comply with the decisions and commitments it makes in an ROD.
BLM's website (specifically its "NEPA Web Guide") 1 currently states that:
"Pursuant to generally recognized principles of federal administrative
law, agencies will be held accountable for preparing Records of
Decision that conform to the decisions actually made and for carrying
out the actions set forth in the Records of Decision. This is based on
the principle that an agency must comply with its own decisions and
regulations once they are adopted. Thus, the terms of a Record of
Decision are enforceable by agencies and private parties. A Record
of Decision can be used to compel compliance with or execution of
the mitigation measures identified therein."
NEPA Web Guide, CEQ 40 FAQs: Questions 30-40, http://www.blm.gov
/wo/ st/en/prog/planning/nepa/webguide/40_most_asked_questions/questions
_30-40.html (last accessed July 20, 2016) (emphasis added). BLM also
states in its NEPA Handbook:
The decision record on an EA may also impose requirements for
mitigation and related monitoring and enforcement activities.
Monitoring activities which are adopted in a decision record must be
implemented as specified.
ELM NEPA Manual, Handbook H-1790-1, 102, 105 (January 2008).
BLM argues that the commitment to recalculate the 2009 AML was made in
the 2009 Herd Management Area Plan, a land use plan, so under Norton v.
1
The Court takes judicial notice of BLM's public website. Fed. R. Evid.
20l(b),(c); see also Perkins v. Linkedln Corp., 53 F. Supp. 3d 1190, 1204 {N.D.
Cal. 2014).
18
Southern Utah Wilderness Alliance, 542 U.S. 55 (2004) (SUWA), BLM was not
bound to the commitment. BLM maintains that SUWA held that ordinarily the
goals set out in BLM management plans are not binding commitments that the
agency can be forced to follow via the AP A's grant of authority to the court
to "compel action unlawfully withheld or unreasonably delayed." 5 U.S.C. §
706(1).
In SUWA the Court explained that, "land use plans are a preliminary step in
the overall process of managing public lands ... [and are] not the ordinary medium
for affirmative decisions that implement the agency's projections." 542 U.S. at 56.
Because a land use plan is generally a statement of priorities, guiding and
constraining actions as opposed to prescribing them, agencies are not typically
legally bound to the projections of agency action contained therein. Id. Under
most circumstances agencies "issue management decisions to implement land use
plans - the decisions, that is, are distinct from the plan itself." Id. at 69; see also
Stout v. US. Forest Service, 869 F.Supp.2d 1271, 1280 (D. Or. 2012) (finding that
a standard which left a measure of discretion to the United States Forest Service in
determining how to manage livestock was not a "clear indication of a binding
commitment.")
Here, as a threshold matter, SUWA interprets claims brought under 5 U.S.C
§ 706(1), but FOA seeks relief under§ 706(2)(A). In SUWA the plaintiffs were
19
seeking to compel agency action which they asserted was "unlawfully withheld or
unreasonably delayed." 542 U.S. at 62-63. Here, BLM has taken a final agency
action which is independently reviewable under a separate section of the APA
requiring the court to "hold unlawful and set aside agency action, findings, and
conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law." 5 U.S.C. § 706(2)(A). The analysis in SUWA does not
apply to § 706(2)(A) claims.
BLM argues that FOA's cause of action under§ 706(2)(A) is really an
attempt to compel agency action by making an end run around§ 706(l)'s statute of
limitations. The court disagrees. As FOA noted in oral argument, FOA did not
dispute the 2009 ROD or BLM's commitment therein to recalculate the AML
within five years. So, FOA had no interest in challenging the 2009 ROD because
FOA agreed with the action. FOA's current action is appropriate under§
706(2)(A), because FOA argues that BLM acted in contradiction with the 2009
ROD when it went ahead with the 2015 Gather Plan before recalculating the AML.
Accordingly, FOA's § 706(2)(A) claim is proper and SUWA does not apply.
Second, according to the administrative record before this Court, the phrase,
"the AML will be recalculated within five years or after the revision to the Billings
RMP, whichever comes first" is found in the Finding of No Significant Impact and
Decision Record for the Pryor Mountain Wild Horse Range 2009 Gather Plan and
20
Environmental Assessment (EA). BLM002722. The commitment was plainly
made in the decision record, not the land use plan, so again, SUWA lacks any
application here.
Even if SUWA did apply, however, the Court finds that BLM is still bound
to its commitment to recalculate the AML within five years. In SUWA, the Court
was reviewing an action brought by environmental plaintiffs who sought to compel
the BLM to better manage wilderness study areas in compliance with goals set out
in the land use plan for that area. 542 U.S. 55. The Court made it clear that
although broad statutory mandates are unenforceable under§ 706(1) of the APA,
language in a plan creating a commitment binding on the agency is a different
matter. Id. at 71. The Court explained that to enforce broad statutory measures
would interfere with agency discretion by substituting the judgment of the court
with that of the expert agency. Id. An agency action specifically called for in a
plan could be compelled, however "when language in the plan itself creates a
commitment binding on the agency." Id. at 71.
Here, even assuming BLM's 2009 commitment to recalculate the AML
within five years was found in the land use plan, the commitment cannot be
construed as a broad statutory mandate. The commitment language specifies that,
"the AML will be re-calculated within five years or after the revision to the
Billings RMP whichever comes first." BLM-002722. If this language does not
21
constitute a commitment, then no language would suffice. BLM recalculated the
AML for the Wild Horse Range only once between 1985 and 2009. In 2009, BLM
revamped the applicable land use plan and apparently made a concerted decision to
recalculate the 2009 AML within five years of that revision, presumably to see
how the revisions impacted the range. It seems clear that BLM went out of its way
to make clear it was committing to a certain process, not simply restating broad
statutory mandates. Withdrawing from that commitment seems to violate§ 706(1)
underSUWA.
In summary, according to federal regulation, case law interpreting the same,
and BLM's representations to the public, the Court finds that BLM made a binding
commitment in the 2009 ROD to recalculate the 2009 AML within five years.
BLM's failure to adhere to this commitment is a violation of process prohibited by
NEPA. See 40 C.F.R. 1505.3; Tyler, 136 F.3d at 608 (agency must comply with
measures agreed to by agency in NEPA review process). Accordingly, the 2009
AML is outdated per the 2009 ROD.
B.
Because the AML was outdated, BLM's excess horse
determination under the Wild Horse Act was arbitrary and
capricious.
FOA argues that since the AML was no longer valid, BLM's reliance on it
for the 2015 Removal Decision was flawed. Specifically, FOA points out that
BLM stated that the purpose of its 2015 Gather was to "maintain the 2009 wild
22
horse AML." (Doc. 28 at 18, quoting BLM000020). BLM argues that it evaluated
the AML in 2012 and 2015. (Doc. 40 at 2). BLM also argues that its reliance on
the AML was minimal for determining the existence of excess animals on the
range. (Doc. 40 at 6). As explained below, because BLM failed to recalculate the
2009 AML as required under NEPA, the 2009 AML was outdated and BLM' s
reliance upon it to make its "excess horse" determination, which formed the basis
for the 2015 Removal Decision, was arbitrary and capricious.
The relevant statute, § 16 U.S.C. § 1332(±)(2), requires that an "excess
animals," determination be made through the use of AML levels. In Def of
Animals, 751 F.3d at 1063 (quoting 16 U.S.C. § 1333(b)(2) (if"an overpopulation
exists," and ifthe BLM determines that "action is necessary to remove excess
animals," the BLM "shall immediately remove excess animals from the range so as
to achieve appropriate management levels.") (emphasis in original). The statute
also provides that "[s]uch action shall be taken ... until all excess animals have
been removed so as to restore a thriving natural ecological balance." Id. In In Def
ofAnimals, the Ninth Circuit held that the most logical reading of those two
phrases together is that the BLM must achieve a "thriving natural ecological
balance" by maintaining the relevant AMLs. § 1333(b)(2). The Court explained,
"[i]n this way, AML is a vehicle used to move towards a thriving natural
ecological balance, and a trigger by which the BLM is alerted to address
23
population imbalance." Id. (citing In Defense ofAnimals, 909 F.Supp.2d at 1192)
(internal quotations omitted).
Here, BLM failed to maintain the relevant AML when it failed to follow its
own commitment to recalculate the 2009 AML within five years. By operating
with an outdated AML when it made its 2015 decision, BLM's excess animal
determination was based, at least in part, on pure guesswork. Regardless of
BLM's reliance on range information, BLM had no accurate AML off of which to
work. Without an accurate AML, BLM's duty to remove could not be triggered
because BLM could not properly determine that an overpopulation existed, which
is the prerequisite for removal. See In Def ofAnimals, 751 F.3d at 1063
(distinguishing Colorado Wild Horse and Burro Coalition v. Salazar, 639
F.Supp.2d 87 (D.D.C.2009), where the BLM did not have the authority to remove
horses because it had not established an overpopulation existed and had not
established the appropriate AML).
Accordingly, BLM's reliance on an outdated AML in making the "excess
horse" determination that formed the basis for its 2015 Removal Decision was
arbitrary and capricious. Therefore, the Court grants summary judgment to FOA
on this claim.
24
C.
NEPA violations
FOA argues that BLM violated NEPA by ( 1) failing to consider the impact
of the 2015 Removal Decision on the genetic health of the Pryor Mountain wild
horse population, and (2) by failing to adequately consider known alternatives to
roundup and removal.
i.
Genetic impacts
FOA argues that BLM failed to consider the effects of the gather on the wild
horses' genetic diversity and simply copied its analysis from the 2012 EA. (Doc.
28 at 20). According to BLM, the findings in the 2010 and 2013 genetic reports it
relied upon were substantially similar but, ultimately both reports showed genetic
variability measures above average. (Doc. 36 at 27). FOA argues that BLM failed
to analyze Dr. Gus Cothran's most recent assessment of the genetic health of the
herd and "disregarded the reasonable opinion of its own expert" without
explanation. (Doc. 37 at 10). The record demonstrates otherwise.
According to the EA, BLM found Dr. Cothran's report "lacking information
about the herd demographics and kinship," because it was based on a small (seven
horses) selection of horses that were related (mothers and siblings). (Doc. 24 at
000022). BLM determined that the Pryor Mountain Wild Mustang Center's
information on kinship and lineage was more accurate with respect to lineage. (Id.
at 7, 37) Not only does BLM have "the discretion to rely on the reasonable
25
opinion of its own experts," In Def ofAnimals, 737 F. Supp. 2d at 1137, even the
"most recent report on genetics of the Pryor Mountain wild horses" provided by
FOA fails to refute the BLM's determinations that loss of genetic material is
minimal. (See Doc 24 at 000022, 000045, Gus Cothran, Genetic Analysis ofthe
Pryor Mountain Wild Horse Range, MT (2013) (stating "He is slightly higher than
Ho which could indicate the very beginning evidence of inbreeding. However, the
difference at this point is not statistically significant.) (emphasis added). BLM is
entitled to "particular deference with respect to scientific issues within [its] area of
expertise. In Def ofAnimals, 737 F. Supp. 2d at 1137. Even ifBLM cut and pasted
its genetic analysis from the 2012 EA to the 2015 EA because the determination
was the same, FOA has not provided the Court with any evidence that the analysis
has changed or is otherwise incorrect.
FOA also argues that Dr. Cothran recommends increasing the herd size to
ensure genetic viability, but fails to acknowledge that even Dr. Cothran suggests
doing so only when the range conditions allow it. (Doc. 11-10 at 5). The 2015 EA
states the range conditions do not allow it.
By tiering to the 2009 EA, BLM incorporated the population management
actions to ensure maximum genetic variation. Further, BLM's proposed adaptive
management to monitor and mitigate the effects of management actions on genetic
diversity in the 2015 EA demonstrates reasoned decision making. Because BLM
26
took a hard look at the genetic impacts of the gather, BLM's actions were not
arbitrary and capricious.
ii.
Alternatives
FOA argues that BLM violated NEPA by failing to consider viable
alternatives to the August gather. Specifically, FOA argues that BLM did not
consider "reasonable" alternatives to the removal including: "(1) allowing the
horses to roam free on public lands with no roundup or removal actions and no
fertility control; (2) adjusting current AMLs; and/or (3) expanding the herd
management area to more adequately reflect the needs of a healthy self-sustaining
population." (Doc. 19 at 28).
a.
No action alternative
BLM argues that it considered FOA's first alternative, but after appropriate
consideration it reasonably rejected the alternative. (Doc. 36 at 24). The record
supports BLM's argument. In a brief summary, BLM explained that it looked
seriously at the alternative but determined that without population management
through fertility treatment and gathers, the horses would be allowed to exhaust all
resources, multiple use relationships would be ignored, and the horses' numbers
would increase until a population crash occurred. (Doc. 24 at BLM000025).
BLM' s response was reasonable and adequate. See Or. Natural Desert Ass 'n v.
ELM, 625 F.3d 1092, 1100 (9th Cir. 2010) (holding that if an agency opts not to
27
make changes, it must, at least explain why the comments do not warrant further
response citing []reasons which support the agency's position.) In fact, BLM
need not have considered this alternative at all because it does not advance the
purpose of the project. See Friends of Se. Future v. Morrison, 153 F.3d at 1247.
As Congress realized in 1978, failing to manage the wild horses does not help
maintain the wild horse AML or benefit the land. Accordingly, the Court grants
summary judgment to BLM on this claim.
b.
Recalculating the AML
Next, FOA argues that BLM failed to consider recalculating the AML as an
alternative. Specifically, FOA argues that BLM failed to offer "reliable data or
support for its decision to rely on the outdated AML" and failed to "consider
reevaluating the AML." (Doc. 37 at 8). BLM contends that FOA ignores evidence
in the record that BLM reevaluated the AML in 2012 and 2015. (Doc. 40 at 9).
BLM states "[e]ven though BLM had not considered reevaluating the AML as a
specific alternative, BLM gave due consideration to the AML." (Id.).
Although NEPA does not require the BLM to "consider every possible
alternative to a proposed action, nor[] alternatives that are unlikely to be
implemented or those inconsistent with its basic policy objectives," BLM cannot
fail to consider an alternative more consistent with its policy objectives than the
other alternatives it considered. See Muckleshoot Indian Tribe v. US. Forest Serv.,
28
177 F.3d 800, 813 (9th Cir. 1999) (holding that the Forest Service should have
considered alternatives "more consistent with [the agency's] basic policy
objectives than the alternatives that were the subject of final consideration.")
Here, BLM adequately considered the alternative of expanding the range and
the no alternative action, yet it failed to discuss reevaluating the AML altogether.
This is troubling because, as noted above, BLM made a specific commitment to
recalculate the AML before 2015 in its 2009 ROD. Obviously reevaluating or
recalculating the AML was consistent with the agency's basic policy objectives
because in 2009 BLM committed to doing just that. Yet, BLM did not bother to
discuss this fact or its reasoning for ignoring this commitment when it rejected this
alternative. By failing to give any meaningful consideration to the fact that BLM
had committed to recalculating the 2009 AML within five years, presumably for a
particular reason, and instead rejecting reevaluating the AML out of hand, BLM
acted arbitrarily and capriciously. Accordingly, the Court grants summary
judgment to FOA on this claim.
c.
Expanding the Herd Management Area
Finally, FOA argues that the BLM failed to consider expanding the Herd
Management Area or provide an explanation for why the alternative was not a
reasonable one. (Doc. 28 at 23). BLM explained that it did not address comments
about expanding the Horse Range because they were "outside the scope of the
29
analysis" of the EA. (Doc. 36 at 33 (quoting Doc. 24 at BLM000045)). At least
two district courts in this circuit have determined that where a proposed action
would result in a change in the scope of resource uses, the change must occur
through a Resource Management Plan amendment, not an EA. See Cloud Found.,
Inc. v. Salazar, 999 F. Supp. 2d 117, 125 (D.D.C. 2013); Cloud Found. v. ELM,
802 F. Supp. 2d 1192, 1206-07 (D. Nev. 2011). Here, as in those cases, range
expansion onto National Forest System lands raises numerous conflicts with other
BLM management goals. Suggesting the range be expanded to some unknown area
is not a reasonable alternative, so the BLM was not required to consider it.
Accordingly, the Court grants summary judgment to BLM on this claim.
V.
Conclusion
FOA's motion for summary judgment (Doc. 28), and BLM's motion for
summary judgment (Doc. 35) are granted in part and denied in part. FOA shall
prepare an appropriate Judgment consistent with this Opinion, and after conferring
with counsel for BLM, shall submit it to the Court for signature.
IT IS SO ORDERED.
DATED this
~-__jff_ day of July, 2015.
United States District Judge
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