Leigh et al v. United States Department of Interior, Bureau of Land Management

Filing 79

ORDER. It is therefore ordered that Plaintiffs' motion for summary judgment (ECF No. 50 ) and Defendants' motion for summary judgment (ECF No. 60 ) are granted in part and denied in part as discussed herein. The Court denies both Moti ons as to whether BLM's selection of observations site and restriction of access to the Axtell Corrals violated the First Amendment. Thus, this is the only claim remaining for trial. The Court grants Defendants' Motion and denies Plainti ffs' Motion as to whether BLM restrictions on accessing private holding corrals violated the First Amendment. The Court grants Plaintiff's Motion and denies Defendants' Motion as to the claim under the Wild Free-Roaming Horses and Burros Act that BLM unreasonably delayed preparing an HMAP but otherwise denied. Under 5 U.S.C. § 706(1), the Court compels Defendants to prepare and approve HMAP(s) covering the Pancake Complex HMAs within one year of the date of this order. < p>The Court grants Defendants' Motion and denies Plaintiffs Motion as to all claims arising under the National Environmental Policy Act. It is further ordered that Plaintiffs' first request for judicial notice (ECF No. 51 ) is denied as to the spreadsheets and veterinary reports (ECF No. 51 -2 at 9 -36) but granted as to the other documents (id. at 5-8). It is further ordered that Plaintiffs' second request for judicial notice (ECF No. 65 ) is granted. It is further ordered that the Court finds it appropriate to refer this case to United States Magistrate Judge Brenda Weksler to conduct a settlement conference under LR 16-5. The case is so referred. If the parties do not settle at the settlement conference, a j oint proposed pretrial order on the First Amendment claims (sixth cause of action) is due within 30 days of the date the settlement conference is held. Signed by Chief Judge Miranda M. Du on 9/23/2024. (Copies have been distributed pursuant to the NEF - RJDG)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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LAURA LEIGH, et al.,
Plaintiffs,

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ORDER

v.

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Case No. 2:22-cv-01200-MMD-BNW

UNITED STATES DEPARTMENT OF THE
INTERIOR, et al.,

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Defendants.
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I.

SUMMARY

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Animal rights plaintiffs1 have filed suit against the U.S. Bureau of Land

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Management (“BLM”), U.S. Department of the Interior, and Nevada BLM Director Jon

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Raby on the grounds that a recent roundup of wild horses in northwestern Nevada

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violated the First Amendment, the Wild Free-Roaming Horses and Burros Act (“WHA”),

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and the National Environmental Policy Act of 1969 (“NEPA”). Before the Court are the

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parties’ cross-motions for summary judgment (ECF Nos. 50, 60 (“Motions”)) and

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Plaintiffs’ requests for judicial notice of several documents (ECF Nos. 51, 65

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(“Requests”)).2 As explained in further detail below, the Court finds that BLM must be

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compelled to prepare a herd management area plan (“HMAP”) but that the agency did

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not violate NEPA and that summary judgment is inappropriate as to the First

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Amendment claims. The Court will accordingly grant in part and deny in part both

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Motions and Requests.

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1Plaintiffs

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Foundation.

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2The

71, 73, 75.)

are Laura Leigh, Wild Horse Education (“WHE”), and the CANA

Court has reviewed the parties’ responses and replies. (ECF Nos. 61-64,

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II.

BACKGROUND
The following facts are undisputed and primarily derived from the administrative

record (“AR”).

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The Blue Wing Complex is a 2.2-million-acre area northeast of Reno, Nevada,

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that contains five herd management areas (“HMAs”). (ECF No. 60 at 17.) The five

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HMAs in the Pancake Complex are the Kamma Mountains, Seven Troughs Range,

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Lava Beds, Blue Wing Mountains, and Shawave Mountains HMAs. (Id. at 17 n.2.)

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BLM set the appropriate management level3 (“AML”) for the Blue Wing Complex

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at a range of 333 to 553 wild horses and 55 to 90 wild burros. (Id. at 17.) This AML was

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affirmed in the Winnemucca District Resource Management Plan (“RMP”) that BLM

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issued in May 2015. (Id. at 17-18.)

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BLM conducted a preliminary environmental assessment (“EA”) of its gather plan

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(“the Gather Plan”). (Preliminary EA at AR 3054-3255.) Thousands of comments on the

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preliminary EA were submitted during its 30-day public comment period. (ECF No. 60 at

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7.) These public comments notified BLM of concerns about livestock grazing levels and

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AMLs. (Final EA at 3513-36.) BLM responded to the comments, edited the Gather Plan,

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then released the Final EA. (Id. at AR 3404, 3513-36.)

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The Final EA considered five alternatives: (1) the no-action alternative; (2)

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Alternative A, which implemented a fertility control vaccine with or without gathers; (3)

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preferred Alternative B, which combined multiple gathers and removals with a fertility

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control vaccine and/or spaying and gelding; (4) Alternative C, which combined one

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removal with multiple gathers and the fertility control vaccine; and (5) Alternative D,

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defines the AML as the “‘optimum number’ of wild horses which results in a
thriving natural eco-logical balance and avoids a deterioration of the range.” (Blue Wing
Complex Gather Environmental Assessment (“Final EA”) at AR 3286.) See also Dahl v.
Clark, 600 F. Supp. 585, 595 (D. Nev. 1984) (“[T]he test as to appropriate wild horse
population levels is whether such levels will achieve and maintain a thriving, ecological
balance on the public lands.”). Wild horse and burro management should seek to
balance wild horse and burro populations, wildlife, livestock, and vegetation, and to
“protect the range from the deterioration associated with overpopulation of wild horses
and burros.” Animal Prot. Inst. of Am., 109 IBLA 112, 115 (1989).
3BLM

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which implemented only one gather and removal to the low AML. (Id. at 3273-74.) BLM

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signed its finding of no significant impact (“FONSI”) and issued a Decision Record on

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May 4, 2021, adopting Alternative B without spaying and gelding. (FONSI at AR 3543-

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45; Decision Record at AR 3537-42.)

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BLM has conducted multiple gathers under this Gather Plan. (ECF Nos. 50 at 10;

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60 at 20.) One such gather of 218 wild horses and 804 wild burros ran from August 1 to

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12, 2022 (“the 2022 Gather”). (Final Blue Wing Gather Report at AR 3880-81.) Laurie

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Ford, a member of WHE, attended this gather and sought to document it by taking

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photographs and videos. (ECF No. 50-2.) The BLM-established observation sites for the

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gather ranged from 0.7 to 1.8 miles away from the relevant trap sites. (ECF No. 60-1.)

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After trapping was completed, the gathered burros were taken to the Axtell Off-Range

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Corrals in Utah. (ECF No. 50 at 23-24.)

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Plaintiffs brought this suit in July 2022 (ECF No. 1) and filed an amended

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complaint two months later (ECF No. 24 (“FAC”)). Now that discovery is complete, the

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parties have both moved for summary judgment. (ECF Nos. 50, 60.) Plaintiffs also seek

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to supplement the AR. (ECF Nos. 51, 65.)

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III.

MOTIONS FOR SUMMARY JUDGMENT

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The parties seek summary judgment on Plaintiffs’ claims that BLM violated the

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First Amendment, WHA, and NEPA.4 (ECF Nos. 50, 60.) The Court will address each of

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these claims in turn.

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A. Article III Standing

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Standing is a threshold issue, so the Court will address these arguments first.

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See Food & Drug Admin. v. All. for Hippocratic Med., 602 U.S. 367, 378 (2024); Lance

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v. Coffman, 549 U.S. 437, 439 (2007) (“Federal courts must determine that they have

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4“Because

neither NEPA nor the [WHA] contain[s] an internal standard of judicial
review, the Administrative Procedure Act [(“APA”)] governs this court’s review of the
BLM’s actions” under those acts. In Def. of Animals, Dreamcatcher Wild Horse & Burro
Sanctuary v. U.S. Dep’t of Interior, 751 F.3d 1054, 1061 (9th Cir. 2014); see also 5
U.S.C. § 702.
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jurisdiction before proceeding to the merits.”). “[T]he irreducible constitutional minimum

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of standing contains three elements.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560

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(1992). Plaintiffs must show that (1) they have suffered an actual or imminent concrete

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and particularized injury-in-fact, (2) the injury is “fairly traceable to the challenged action

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of the defendant,” and (3) it is likely, rather than speculative, that the injury will be

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redressed by a favorable decision. Id. at 560-61. Defendants contest only the first and

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third prongs as they pertain to Plaintiffs’ First Amendment claim.5 (ECF No. 60 at 50.)

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1.

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Plaintiffs allege that BLM’s designated observation sites for the 2022 gather

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operations were located such that they could not meaningfully observe the gather;6

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however, they have requested only prospective injunctive relief for this past harm. (ECF

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Nos. 24 at 31; 50 at 41-42; 50-2 at 2-3.). “Past exposure to harmful or illegal conduct

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does not necessarily confer standing to seek injunctive relief if the plaintiff does not

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continue to suffer adverse effects.” Mayfield v. United States, 599 F.3d 964, 970 (9th

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Cir. 2010). Thus, to obtain an injunction, Plaintiffs must demonstrate that they have

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suffered a concrete and particularized legal harm “coupled with ‘a sufficient likelihood

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that [they] will again be wronged in a similar way.’” Bates v. United Parcel Serv., 511

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F.3d 974, 985 (9th Cir. 2007) (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 111

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(1983)); accord DZ Rsrv. v. Meta Platforms, Inc., 96 F.4th 1223, 1240 (9th Cir. 2024).

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Plaintiffs have satisfied both prongs.

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///

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Injury in Fact

5Plaintiffs

make arguments regarding their standing to bring WHA and NEPA
claims that the Court does not address in detail here. (ECF No. 50 at 18-22.)
Defendants do not dispute Plaintiffs’ standing to bring these claims, and the Court finds
that Plaintiffs have met the threshold requirements. It is undisputed that BLM gathered
horses from the Pancake Complex, which caused the injury and deaths of wild horses.
Plaintiffs, who are wild horse enthusiasts and animal rights groups, were harmed or
have members whose aesthetic interests and interests in the wellbeing of horses were
harmed as a result. Plaintiffs’ requested relief could remedy those harms moving
forward.
6Defendants

submit as contradictory evidence a blog post from WHE containing
various photographs and videos of the gather. (ECF No. 60 at 50 n.18.)
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a.

Past Harm

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At summary judgment, it is sufficient for Plaintiffs to establish their injury by

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setting forth in an affidavit or other evidence “specific facts, which for purposes of

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summary judgment motion will be taken to be true.” Lujan, 504 U.S. at 561 (internal

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quotation marks and citation omitted); see also FED. R. CIV. PROC. 56(c)(1)(A). Plaintiffs

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have submitted the affidavit of WHE member and 2022 gather attendee Laurie Ford.

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(ECF No. 50-2.) Ford claims that, even with cameras, she “could hardly observe or

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document the gather operations” from the observation sites due to their distance from

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trapping operations and the presence of BLM trucks and stock trailers that obstructed

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her view. (Id. at 2-3.) Photographs and videos of the gather shared on WHE’s website

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raise genuine questions as to the accuracy of Ford’s statements, but many of those

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images are sufficiently blurry that a reasonable jury could find Ford was unable to see

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the gather operations clearly. (ECF No. 60 at 50 n.18.) See Blue Wing Roundup, 2022,

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WILD HORSE EDUC. (Aug. 5, 2022), https://perma.cc/3GSL-S3NX; cf. Scott v. Harris, 550

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U.S. 372, 380 (2007) (holding that courts ruling on a motion for summary judgment

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should not adopt a version of the facts that is “blatantly contradicted by the record, so

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that no reasonable jury could believe it”). Plaintiffs have adequately shown that one of

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their members suffered a particularized injury when she was unable to observe the

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2022 gather from the BLM-established viewing locations.

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b.

Future Injury

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Plaintiffs’ likelihood of repeated future harm depends upon whether (1) BLM will

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gather horses in the Blue Wing Complex, (2) BLM will impair observers’ ability to watch

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these gathers, and (3) Plaintiffs have concrete plans to observe these gathers. The

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record establishes that, when the FAC was filed, there was a “real possibility” of more

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gathers in the Blue Wing Complex. Leigh v. Salazar, 677 F.3d 892, 896 (9th Cir. 2012)

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[hereinafter Salazar I] (discussing mootness of a similar claim); see also Skaff v.

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Meridien N. Am. Beverly Hills, LLC, 506 F.3d 832, 838 (9th Cir. 2007) (“The existence of

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standing turns on the facts as they existed at the time the plaintiff filed the complaint.”).
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BLM estimated in July 2022 that there was an excess of 1,360 wild horses and 1,272

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wild burros on the Complex and, by September 2022, had removed only 218 horses

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and 804 burros. (Gather Request at AR 3826; Final Gather Report at AR 3880-81.)

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These numbers, combined with the Gather Plan’s authorization to conduct phased

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gathers through 2037 and BLM’s mandate to remove excess horses, indicated that BLM

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would imminently gather more horses and burros in the Blue Wing Complex. See also

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16 U.S.C. 1333(b)(2).

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Plaintiffs have likewise alleged that there is a substantial risk BLM will impair their

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ability to observe these future Blue Wing Complex gathers. It is “standard practice” for

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WHE to send its members to observe and document gathers throughout the country,

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including in the Blue Wing Complex. (ECF Nos. 50-1 at 3; 50-2.) Though herd

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management decisions are highly fact-specific, access issues for gather observers have

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been “commonplace” in the Winnemucca District. (ECF No. 50-1 at 6.) See also Fund

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for Animals, Inc. v. BLM, 460 F.3d 13, 22-23 (D.C. Cir. 2006). Taking these allegations

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as true, Plaintiffs face a “realistic danger” that they will be directly harmed by BLM’s

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selection of observation sites for future gathers in the Blue Wing Complex. Pennell v.

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City of San Jose, 485 U.S. 1, 8 (1988) (quoting Babbitt v. United Farm Workers Nat’l

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Union, 442 U.S. 289, 298 (1979)).

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2.

Causation

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There is little question that these injuries are traceable to BLM’s challenged

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actions. Ford stated in her affidavit that BLM escorted her to the public observation sites

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and would not grant her access to the temporary holding corrals. (ECF No. 50-2 at 2-3.)

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See Lujan, 504 U.S. at 560. The causation requirement has been met.

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3.

Redressability and Mootness

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As relief for their First Amendment claim, Plaintiffs request that the Court compel

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Defendants to provide them “meaningful viewing access” to the holding corrals

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containing the animals gathered in 2022 and to “each phase of future gather and

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removal efforts of horses and burros living in the Blue Wing Complex.” (ECF No. 24 at
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31.) The Court will assess Plaintiffs’ standing for each type of relief sought. See

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Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009).

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a.

Access to Holding Corrals

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To the extent any animals gathered from the Blue Wing Complex in 2022 are still

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held by BLM in the Midwest or elsewhere, the Court could grant effective relief by

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ensuring that Plaintiffs have access to those animals, wherever they may be. (ECF No.

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60-1 at 7.)

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For any animals that are no longer in BLM’s possession, Plaintiffs’ request is

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moot. The Court cannot effectively remedy a present controversy between the parties

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where a plaintiff seeks an injunction regarding an activity that has already concluded, as

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the Court “cannot undo that action’s allegedly harmful effects.” Protectmarriage.com-

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Yes on 8 v. Bowen, 752 F.3d 827, 834 (9th Cir. 2014) (quotation marks omitted). Such

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claims would not fall within the mootness exception for cases that are ‘capable of

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repetition yet evading review’ either because it was not clear at the inception of BLM’s

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plan that any controversies regarding the holding of gathered animals would be of

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“inherently limited duration.” Id. at 836; see also Dep’t of Fish & Game v. Fed.

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Subsistence Bd., 62 F.4th 1177, 1181 (9th Cir. 2023) (“The plaintiff has the burden of

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showing that the exception applies.”). In other words, this is not part of the “classes of

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cases that, absent an exception, would always evade judicial review.” Bowen, 752 F.3d

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at 836; cf. Roe v. Wade, 410 U.S. 113, 125 (1973), overruled on other grounds by

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Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022) (exception applied to

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abortion access because pregnancy usually lasts only 266 days); Enyart v. Nat’l Conf.

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of Bar Examiners, Inc., 630 F.3d 1153, 1160 (9th Cir. 2011) (exception applied to

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month-long injunctions); Dep’t of Fish & Game, 62 F.4th at 1181-82 (exception applied

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to 60-day emergency hunt).

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b.

Meaningful Viewing Access to Future Gathers

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Plaintiffs’ concerns about access to future gathers are redressable and are not

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moot. Though the gather had ended by September 2022—meaning any injuries arising
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from an inability to observe the gather operations ceased to exist by the time Plaintiffs

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filed their FAC—Plaintiffs request prospective injunctive relief to prevent similar future

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injuries. See Arcamone-Makinano v. Haaland, No. 2:22-CV-00621-JAD-NJK, 2022 WL

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4585298, at *3 (D. Nev. Sept. 29, 2022). Plaintiffs have properly shown that there was a

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substantial risk they would be similarly harmed again at the time they filed their FAC.

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Thus, their injuries were redressable in September 2022.

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Nor has this case become moot since its filing, as the Court can still provide

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effective relief for Plaintiffs’ alleged future injuries. See Bowen, 752 F.3d at 834 (“An

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actual controversy must exist at all stages of federal court proceedings.”). Since

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Plaintiffs filed their initial complaint, the 2022 gather has fully concluded, and BLM

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conducted another gather in the Complex. But even after this additional gather, the

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AMLs have not been achieved for the Complex.7 BLM is required to “immediately

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remove” the remaining excess animals, meaning the probability of a future gather is

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almost guaranteed. See Salazar I, 677 F.3d at 896 (quoting 16 U.S.C. § 1333(b)(2)).

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Plaintiffs’ request for prospective injunctive relief is not moot because it is highly likely,

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given these circumstances, that the Court can redress Plaintiffs’ injuries when BLM

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gathers and removes the excess animals currently present in the Blue Wing Complex.

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Plaintiffs’ request for injunctive relief is not moot as applied to future gathers.

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B. First Amendment

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The First Amendment grants a “qualified right of access for the press and public

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to observe government activities.” Salazar I, 677 F.3d at 898. Whether this right of

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access applies to wild horse and burro gathers is governed by a two-step test. See id.

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(citing Press-Enter. Co. v. Sup. Ct. of Cal. for Riverside Cnty., 478 U.S. 1 (1986)). The

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7Under

Federal Rule of Evidence 201, the Court takes judicial notice of a BLM
publication stating that the Blue Wing Complex contained approximately 1,912 wild
horses and 476 burros before it conducted a gather in 2024. See 2024 Blue Wing
Complex Wild Horse and Burro Gather, BLM, https://perma.cc/PCA3-NFH4. BLM
reported that it gathered only 1,305 horses and 360 burros in 2024, leaving an
approximate 607 horses and 116 burros in the Complex. See id. These reported
populations exceed the AMLs of 333 to 555 horses and 55 to 90 burros. See id.
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court must first determine whether a right of access attaches to the government activity

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by assessing “whether the place and process have historically been open to the press

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and general public” and “whether public access plays a significant positive role in the

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functioning of the particular process in question.” Id. (quoting Press-Enter., 478 U.S. at

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8). If a qualified right exists, then the government may abridge that right only if it

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demonstrates “an overriding interest based on findings that closure is essential to

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preserve higher values and is narrowly tailored to serve that interest.” Id. (quoting

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Press-Enter., 478 U.S. at 9). Plaintiffs challenge BLM’s restrictions on their ability to

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observe the gather and the post-gather holding facilities.

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1.

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The public has a qualified right of access to view wild horse gather operations,

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like the 2022 gather. (ECF No. 60 at 56.) See Leigh v. Salazar, 954 F. Supp. 2d 1090,

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1101 (D. Nev. 2013) [hereinafter Salazar II]; Wild Horse Educ. v. U.S. Dep’t of the

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Interior, No. 3:23-CV-00372-LRH-CLB, 2024 WL 2060272, at *2 (D. Nev. May 8, 2024).

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Defendants have identified two important overriding interests served by the selected

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observation sites: carrying out their statutory duty to gather excess horses and burros in

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an effective and efficient manner and protecting the safety of the public, wranglers, and

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animals themselves. (ECF No. 60 at 56-57.) See Wild Horse Educ., 2024 WL 2060272,

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at *2. Keeping proper space between public observers and gather operations is

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essential to public safety and the efficiency of the gather—especially where, like here,

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helicopters are being used to round up over 1,000 animals.8 (Final EA at 3333, 3455

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(discussing how having the public too close to helicopters during a gather can be

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dangerous for observers, wranglers, and the animals); Final Blue Wing Gather Report at

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AR 3880-81; ECF No. 71 at 30.)

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Trapping Sites on Public Land

The primary question, then, is whether BLM’s restrictions on public observation
8Plaintiffs

do not contest that putting a sufficient distance between observers and
gather operations was essential to these governmental interests. (ECF Nos. 50 at 4143; 63 at 29-30.) But the Court “cannot rubber-stamp an access restriction simply
because the government says it is necessary.” Salazar I, 677 F.3d at 900.
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for the 2022 gather were narrowly tailored to its interests in efficiency and safety. In

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determining whether a burden imposed on a constitutional right is narrowly tailored, the

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Court may consider whether other jurisdictions have effectively addressed the problem

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at hand with less intrusive tools and the existence of reasonable alternatives. See

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United States v. Allen, 34 F.4th 789, 797-98 (9th Cir. 2022).

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a.

Other Gathers and Other Jurisdictions

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Plaintiffs first argue that another BLM gather in the Silver King HMA employed

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much closer observation sites, which indicates that BLM could have done the same in

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the Blue Wing Complex. The 2010 Silver King gather also used helicopters but had two

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designated viewing areas that were one-quarter mile from one trap location and 35 feet

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from the other. See Salazar II, 954 F. Supp. 2d at 1094. The location of each of those

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observation sites, “the first on the ridge overlooking the jute wings and the second

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overlooking the trap itself, naturally arose from the trap’s placement.” Id. at 1102. And

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both were placed “above the gather path and away from the helicopter’s flight path”

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such that BLM could avoid “the danger of flying debris that can be picked up by the

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helicopter’s draft.” Id.

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Opportunities for such proximity were precluded by the terrain in the Blue Wing

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Complex. Unlike the Silver King gather site which sat below a ridge, the trap site used

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during the first three days of the 2022 Blue Wing Complex gather was in a “flat and

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open” area with “limited geographical features to hide vehicles and members of the

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public.” (ECF No. 60-1 at 4.) BLM thus selected an observation site 1.8 miles away from

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the trap site that had tree cover and fencing—and was not in the burros’ path of travel.

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(Id. at 4-5.) Each successive observation site used during the 2022 Blue Wing gather

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was similarly chosen for having terrain that would hide observers while remaining within

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viewing distance of the trap site. (Id. at 5-6.)

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“[A]ll wild horse gather locations are different and present unique challenges to []

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BLM and its contractors based on the natural topography and terrain of the location.”

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Salazar II, 954 F. Supp. 2d at 1103. So, while the Silver King gather observation sites
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are helpful in explaining that observers may not inherently have to be quite so far from a

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helicopter-based gather, they ultimately do little to undermine BLM’s reasoning in

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choosing the Blue Wing gather sites. The fundamental differences in the topography of

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the Silver King and Blue Wing trap sites fully explain the disparities in the placement of

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their observation sites. (Final EA at AR 3277 (“[T]here may be circumstances (flat

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terrain, limited vegetative cover, private lands, etc.) that require viewing locations to be

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at greater distances from the gather site due to public visitor access or to ensure safe

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gather operations.”).)

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b.

Reasonable Alternatives

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Plaintiffs also present three potential alternative observation protocols that they

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argue BLM should have adopted. They first argue that closer observation sites were

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available. (ECF No. 63 at 29 (citing ECF No. 60-1 at 4-6).) But the alternative sites they

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reference were specifically rejected by BLM because, if observers had been there, “they

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would have been run over by the animals, and the helicopter would have had to avoid

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the area and would not have been able to make any correction to the burros[’] traveling

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paths.” (ECF No. 60-1 at 5.) Plaintiffs offer no evidence to the contrary. Any alternative

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that put observers in danger of being trampled by burros was not a viable option.

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Plaintiffs’ next suggestion—that BLM could have placed observers in an

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abandoned fenced cattle pen located approximately 200 feet from the first trap site—is

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similarly unavailing. BLM used the pen as a helicopter refueling site. (ECF Nos. 71 at

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30; 71-1 at 2.) Placing members of the public near working helicopters would have been

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unsafe due to flying debris and the possibility of helicopter crashes or emergency

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landings. (Final EA at 3333, 3455; ECF No. 71-1 at 3.) Depending on the size of the

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pen, using it as an observation site may have also violated Federal Aviation

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Administration aircraft safety regulations. See 14 C.F.R. § 91.119(c) (mandating that

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“aircraft may not be operated closer than 500 feet to any person”). The cattle pen

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therefore posed too many safety risks to be a reasonable alternative.

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Nor is the Court fully convinced by Plaintiffs’ contention that BLM could have
11

1

allowed the public to be closer to trap locations by requiring them to observe the gather

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from their vehicles. BLM did not close the road but did limit vehicular access to the

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gather areas because having vehicles on the roads would create safety risks for

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observers and wranglers alike and affect the efficiency of the gather. (ECF No. 71-1 at

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2.) However, whether the limitations on vehicles were narrowly tailored is not entirely

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clear. Questions remain as to where observers could have parked their vehicles, how

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close these sites were to gather operations, and what levels of viewing access and

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safety concerns were present. Summary judgment is therefore denied as to whether

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allowing the public to access closer observation sites in their vehicles was a reasonable

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alternative.

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Given the triable questions of fact regarding Plaintiffs’ suggested vehicular

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alternative, the Court denies both Motions as to whether BLM’s selected observation

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sites were narrowly tailored to serve its interests in public safety and an effective and

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efficient gather.

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2.

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a.

Holding Corrals on Private Land
Qualified Right of Access

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BLM cites to Salazar II in arguing that “[t]he law in this District is clear” that “no

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qualified right of access arises” for post-gather holding corrals on privately owned land.

19

(ECF No. 63 at 55.) See Salazar II, 954 F. Supp. 2d at 1103 (noting the “important

20

distinction between gathers conducted upon public property where the public ordinarily

21

enjoys full access and follow-up activities conducted by private contractors on private

22

property”). But a decision by one district judge does not bind another, let alone

23

constitute the law of the district. This Court disagrees with BLM’s sweeping contention

24

that “there is no qualified right of access” to holding corrals that would otherwise be

25

available for public viewing simply because BLM contracted with a private company to

26

run the facilities, rather than establishing and managing the corrals itself.

27

Public access to post-gather holding corrals plays a positive role in managing

28

gathered animals, particularly with regard to adopting out the animals and protecting
12

1

their interests. See Salazar II, 954 F. Supp. 2d at 1101 (discussing benefits of public

2

access to gathers). Without public access, it is difficult for the press and concerned

3

observers to report on the government’s activities and the health and wellbeing of

4

gathered animals. See id.

5

Moreover, Plaintiffs have provided evidence that they have historically been

6

given access to post-gather holding facilities, albeit subject to a variety of restrictions, to

7

observe how the government is caring for gathered animals. (ECF Nos. 50-1 at 6; 63-1

8

at 2-3.) Drawing a hard line between privately and publicly owned facilities construes

9

the meaning of ‘place and process’ too narrowly; instead, the Court looks at the process

10

and place (i.e., holding gathered animals in off-range corrals) more broadly and

11

considers the difficulties of contracting with private vendors in determining whether

12

restrictions were narrowly tailored. Here, the factual record shows that Plaintiffs have

13

been able to visit post-gather off-range holding facilities, including the Axtell Corrals.

14

(ECF Nos. 50-1 at 6; 63-1 at 2-3.) BLM even opened up its publicly operated facility, the

15

Palomino Valley Off-Range Corrals, for the public to observe horses that were removed

16

from the Blue Wing Complex during the 2022 gather. (ECF No. 60 at 24.)

17

The Court accordingly finds that corrals holding gathered animals have

18

historically been open to the press and general public, with some limitations. The public

19

has a qualified right of access to post-gather holding corrals.

20
21
22

b.

Narrowly Tailored

BLM appears to cite its overriding interests in private property rights and public
safety, given past fires at holding corrals. (ECF No. 60 at 54-55.)

23

Factual questions remain, however, as to whether the outright ban on viewing

24

burros held at the Axtell Corrals was narrowly tailored to BLM’s public safety and

25

property rights concerns. The Court understands that the means of holding the burros

26

may have made public access more difficult and that private landowners often have

27

discretion as to who may enter their property. (ECF No. 71 at 29.) It is unclear, though,

28

what alternative holding facilities were available, what level of access was available at
13

1

those alternatives, and whether BLM could have negotiated greater public access at the

2

Axtell Corrals. Especially given BLM’s ability to accommodate safety concerns at other

3

facilities without fully prohibiting public visitation, the Court finds that summary judgment

4

is inappropriate as to whether the access restrictions on the Axtell Corrals after the

5

2022 gather were narrowly tailored to BLM’s overriding interests.

6

In sum, triable issues of fact exist as to whether BLM’s restrictions on public

7

access to post-gather holding facilities were narrowly tailored to serve its interests in

8

public safety and an effective and efficient gather. The Court denies both Motions as to

9

Plaintiffs’ First Amendment claim for access to the Axtell Corrals.

10

C. APA Section 706(1) and the Mandamus and Venue Act

11

“District courts have jurisdiction ‘to compel an officer or employee of the United

12

States or any agency thereof to perform a duty owed to the plaintiff,’ pursuant to the

13

Mandamus Act, 28 U.S.C. § 1361, and a similar provision of the APA, 5 U.S.C. §

14

706(1), which allows courts to compel ‘agency action unlawfully withheld or

15

unreasonably delayed.’” Agua Caliente Tribe of Cupeño Indians of Pala Rsrv. v.

16

Sweeney, 932 F.3d 1207, 1216 (9th Cir. 2019). The Court will consider Plaintiffs’

17

causes of action under both statutes together “because the relief sought is essentially

18

the same.” Id. (quoting Indep. Mining Co. v. Babbitt, 105 F.3d 502, 507 (9th Cir. 1997))

19

(brackets omitted).

20

1.

Preparing an HMAP

21

Plaintiffs first allege that BLM has unlawfully withheld, or alternatively

22

unreasonably delayed, preparing HMAPs for the Blue Wing Complex. See 5 U.S.C. §

23

706(1). Under the APA, courts may compel withheld or delayed agency action only if

24

that action is both discrete and legally required. See Norton v. S. Utah Wilderness All.,

25

542 U.S. 55, 62-64 (2004) [hereinafter SUWA].

26

Preparing an HMAP is indisputably a discrete action. See Vietnam Veterans of

27

Am. v. Cent. Intel. Agency, 811 F.3d 1068, 1079 (9th Cir. 2016) (noting that an action

28

can still be discrete when the agency retains discretion over the way its duty may be
14

1

carried out); cf. SUWA, 542 U.S. at 64 (describing the discreteness requirement as

2

precluding a “broad programmatic attack”). At issue here are the circumstances under

3

which developing an HMAP is also mandatory. The Court’s analysis accordingly turns

4

on whether the deadline for preparing an HMAP is firm or discretionary—that is,

5

whether the HMAP is being unlawfully withheld or unreasonably delayed, respectively.

6

See Biodiversity Legal Found. v. Badgely, 309 F.3d 1166, 1177 n.11 (9th Cir. 2002).

7

a.

Unlawfully Withheld HMAP

8

Defendants assert that issue preclusion, or collateral estoppel, applies to whether

9

a firm deadline exists by which BLM must complete an HMAP. The Court agrees.

10

Collateral estoppel applies when four conditions are met: “(1) the issue at stake was

11

identical in both proceedings; (2) the issue was actually litigated and decided in the prior

12

proceedings; (3) there was a full and fair opportunity to litigate the issue; and (4) the

13

issue was necessary to decide the merits.” Oyeniran v. Holder, 672 F.3d 800, 806 (9th

14

Cir. 2012), as amended (May 3, 2012). Each of these factors has been met here. The

15

Court recently addressed a similar challenge to a BLM roundup in eastern Nevada. See

16

Leigh v. Raby, __ F. Supp. 3d __, No. 3:22-CV-00034-MMD-CLB, 2024 WL 1345297

17

(D. Nev. Mar. 28, 2024) [hereinafter Leigh I]. While the facts of this case and Leigh I are

18

different, they raise identical questions about whether the WHA and its implementing

19

regulations require BLM to prepare an HMAP before conducting a gather. See id. at *3-

20

4. This issue was litigated and decided in Leigh I, and the parties in had a full and fair

21

opportunity to litigate this question; the Court even ordered supplemental briefing and

22

heard oral argument. See id. at *1 n.2, *5. Finally, resolution of the issue was necessary

23

to the merits. See id. at *3-*4. Collateral estoppel bars the re-litigation of this question.9

24
25
26
27
28

9When

deciding this issue in Leigh I, the Court relied heavily on the Supreme
Court’s opinion in Kisor v. Wilkie, 588 U.S. 558 (2019). See 2024 WL 1345297, at *3-4.
Though the Supreme Court has since overruled Chevron, U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984), the Court “did not call Kisor into
question . . . (and in fact cited it), and as the concurrence acknowledges did not overrule
it, so [the Ninth Circuit] continue[s] to apply it.” United States v. Trumbull, ___ F.4th ___,
15

1

The Blue Wing Complex HMAPs have not been unlawfully withheld because there is no

2

firm deadline for preparing an HMAP.
b.

3

Unreasonably Delayed HMAP

4

In the absence of a firm deadline for preparing HMAPs, the Court will assess

5

whether BLM has unreasonably delayed creating an HMAP for the Blue Wing Complex

6

HMAs. BLM has bound itself to create HMAPs for each HMA, and, given the

7

circumstances at hand, its 38-year delay in doing so for the Blue Wing Complex has

8

been unreasonable. The Court will therefore compel BLM to prepare one or more

9

HMAPs covering each HMA in the Blue Wing Complex.
i.

10

Legally Required

11

Section 4710.3-1 of BLM’s WHA implementing regulations provides that HMAs

12

“shall be established for the maintenance of wild horse and burro herds” and that BLM

13

“shall prepare a [HMAP], which may cover one or more [HMAs].” 43 C.F.R. § 4710.3-1.

14

These are mandatory duties with which BLM must comply. See Leigh I, 2024 WL

15

1345297, at *4; Animal Prot. Inst. of Am., 109 IBLA at 127 (“43 CFR 4710.3-1 requires

16

preparation of an HMAP.”); Me. Cmty. Health Options v. United States, 590 U.S. 296,

17

310 (2020) (“The first sign that the statute imposed an obligation is its mandatory

18

language: ‘shall.’”). Regardless of the discretion the agency was originally granted

19

under the WHA, BLM “has chosen to constrain its own discretion via regulations that

20

carry the force of law.” Trout Unlimited v. Pirzadeh, 1 F.4th 738, 751 (9th Cir. 2021);

21

accord Flores v. Bowen, 790 F.2d 740, 742 (9th Cir. 1986). BLM must comply with

22

Section 4710.3-1 and develop one or more HMAPs for the Blue Wing HMAs. See

23

Flores, 790 F.3d at 742; Vietnam Veterans of Am., 811 F.3d at 1079.

24

///

25

///

26
27
28

No. 23-912, 2024 WL 3894526, at *3 n.2 (9th Cir. Aug. 22, 2024) (discussing Loper
Bright Enters. v. Raimondo, 144 S. Ct. 2244 (2024)) (citation omitted).
16

1

ii.

TRAC Factors

2

Defendants concede that they have not prepared HMAPs for the HMAs. 10 The

3

issue, then, is whether BLM’s delay in preparing HMAPs has been unreasonable. To

4

answer that question, the Ninth Circuit uses the six-factor balancing test announced by

5

the D.C. Circuit in Telecommunications Research & Action Center v. FCC (“TRAC”),

6

750 F.2d 70, 80 (D.C. Cir. 1984). See Vaz v. Neal, 33 F.4th 1131, 1137 (9th Cir. 2022).

7

The first TRAC factor considers “whether the time for agency action has been

8

reasonable.” Id. at 1138 (quoting In re Nat. Res. Def. Council, Inc., 956 F.3d 1134, 1139

9

(9th Cir. 2020) [hereinafter In re NRDC]). Though not determinative, it is “the most

10

important factor.” Id. (quotation marks omitted). “Repeatedly, courts in this and other

11

circuits have concluded that a reasonable time for agency action is typically counted in

12

weeks or months, not years.” Id. (quoting In re NRDC, 956 F.3d at 1139) (quotation

13

marks omitted).

14

By these standards, BLM has taken more than a reasonable amount of time to

15

prepare HMAPs for the HMAs. Each of the five HMAs at issue predates the regulation

16

compelling BLM to prepare HMAPs, meaning BLM’s duty to prepare HMAPs for these

17

HMAs arose when BLM promulgated the regulation 38 years ago in 1986. (Preliminary

18

EA at AR 3133 (noting that gathers were conducted in each HMA in 1985); Final EA at

19

AR 3316 (same).) See also Revision of Existing Regulations on Protection,

20

Management, and Control of Wild Free-Roaming Horses and Burros, 51 Fed. Reg.

21

7410, 7416 (Mar. 3, 1986) (to be codified at 43 C.F.R. pt. 4710.3-1). BLM’s almost four-

22

decade-long delay in developing and approving HMAPs has been “nothing short of

23

egregious” and clearly violates the rule of reason. In re NRDC, 956 F.3d at 1142; see

24

also In re Pesticide Action Network N. Am., 798 F.3d 809, 814 (9th Cir. 2015) (eight-

25

year delay with no concrete timeline to reach a final ruling was a “roadmap for further

26
27
28

10Although

BLM has prepared gather plans and RMPs, these documents cannot
meet the Section 4710.3-1 mandate to prepare an HMAP. See Leigh I, 2024 WL
1345297 at *5-6.
17

1

delay” that “stretched the ‘rule of reason’ beyond its limits”); All. for Wild Rockies v.

2

Cooley, 661 F. Supp. 3d 1025, 1039 (D. Mont. 2023) (20-year delay in grizzly bear

3

management was “clearly” unreasonable). The first TRAC factor strongly favors

4

Plaintiffs.

5
6

The second factor is not applicable because Congress has not supplied a
timeframe in which HMAPs should be prepared. See In re NRDC, 956 F.3d at 1140-41.

7

The third factor indicates that delay is less likely to be reasonable when the

8

regulation at issue affects human health and welfare than when it is an economic

9

regulation, and the fifth factor looks more broadly at the nature and extent of the

10

interests that have been prejudiced by the agency’s delay. See Vaz, 33 F.4th at 1137.

11

The Court will analyze these factors together, as they often overlap. See Indep. Mining,

12

105 F.3d at 509. The consequences of BLM’s failure to prepare an HMAP “fall neither

13

into the economic realm nor specifically into the realm of human health and welfare.” Or.

14

Nat. Desert Ass’n v. Bushue, 644 F. Supp. 3d 813, 842 (D. Or. 2022), appeal dismissed

15

sub nom. Or. Nat. Desert Ass’n v. BLM, No. 23-35101, 2023 WL 5012123 (9th Cir. June

16

5, 2023). The third factor is thus neutral.

17

But “the public can still have a significant interest in agency management that

18

promotes such important values as wildlife, scenery, cultural resources, and

19

recreational opportunities.” Id. (quotation marks omitted). Congress enacted the WHA to

20

protect wild horses and burros—which are “an integral part of the natural system of the

21

public lands” and symbols of American history and culture—and the ecology of the

22

public lands they inhabit. 16 U.S.C. §§ 1331, 1333(a). Defendants contend that the

23

Winnemucca RMP, Blue Wing Complex EA, and Comprehensive Animal Welfare

24

Program all ensure that management activities are conducted at the ‘minimal feasible

25

level,’ and thus none of these interests were prejudiced by BLM’s delay in developing

26

an HMAP. (ECF No. 60 at 35.) The Court will assume, without deciding, that this is

27
28
18

1

true11 and that the fifth factor weighs in Defendants’ favor.

2

The fourth factor looks to “whether compelling the agency to act would detract

3

from its higher or competing priorities.” Vaz, 33 F.4th at 1138. Preparing an HMAP may

4

take personnel and funding away from other BLM activities, like gathering excess wild

5

horses and burros to protect their health and the health of range. (ECF No. 60 at 35.)

6

The Court is sympathetic to the fact that BLM, like most public agencies, has multiple

7

resource-intensive mandates and limited resources with which to fulfill them. See Vaz,

8

33 F.4th at 1138. But it would be overly generous to say that BLM gets a free pass on

9

the fourth factor because all its activities to some extent touch on the important values

10

of wildlife, recreation, and the multiple use of public lands. See In re NRDC, 956 F.3d at

11

1141. Preparing an HMAP should have a limited impact on BLM’s other priorities. The

12

agency can conduct gathers in the meantime to maintain the health of herds and

13

rangelands. This factor therefore favors Plaintiffs.

14
15

Finally, the sixth factor is irrelevant because there is no evidence that BLM has
acted improperly. (ECF Nos. 64 at 32; 78 at 14.) See also Vaz, 33 F.4th at 1138 n.6.

16

Only the fifth factor has weighed in Defendants’ favor, leaving little question that

17

BLM’s delay in preparing HMAPs for the Kamma Mountains, Seven Troughs Range,

18

Lava Beds, Blue Wing Mountains, and Shawave HMAs has been unreasonable. BLM

19

must develop and approve one or more HMAPs for the Blue Wing Complex HMAs

20

within the next year.12 See 43 C.F.R. § 4710.3-1 (noting that HMAPs may cover one or

21
22
23
24
25
26
27
28

11Before

the gather, an overpopulation of wild horses was severely harming
riparian vegetation and springs in the Blue Wing Complex. (Final EA at AR 3265-66.)
These are issues that HMAPs are meant to address, leaving the Court not entirely
convinced that no interests have been prejudiced by the decades-long delays in
preparing HMAPs. (Handbook at AR 90.) Regardless, this factor is not dispositive, and
the Court still finds that BLM’s delay is unreasonable, as explained below.
12Defendants

have informed the Court that BLM recently began the process for
developing a HMAP for the Blue Wing Complex and “intends on completing the process
and adopting an HMAP for the Blue Wing Complex within approximately one year.”
Heather O’Hanlon, Humboldt River Field Office Has Initiated a Public Scoping Period on
the Blue Wing Complex Herd Management Area Plan, BLM (May 2, 2024),
https://perma.cc/GJ97-76X8. Because BLM’s commitment to completing the HMAP
19

1

multiple HMAs). Because an adequate remedy is available under the APA, Plaintiffs’

2

Motion is denied and Defendants’ Motion is granted as to Plaintiffs’ motion to compel

3

BLM to prepare HMAPs under the Mandamus and Venue Act. See Patel v. Reno, 134

4

F.3d 929, 931 (9th Cir. 1997) (“Mandamus is an extraordinary remedy and is available

5

to compel a federal official to perform a duty only if . . . no other adequate remedy is

6

available.”).

7

2.

Removing Excess Animals

8

Plaintiffs further attest that BLM failed to “immediately” remove excess horses

9

and burros in violation of the WHA when it adopted a 20-year-long phased approach to

10

managing horse and burro populations in the Blue Wing Complex. (ECF No. 50 at 34

11

(quoting 16 U.S.C. § 1333(b)(2)).) However, the Court cannot reach the merits of this

12

claim because the Mandamus and Venue Act and APA Section 706(1) do not permit

13

Plaintiffs’ requested relief. Each of Plaintiff’s relevant requested remedies would prohibit

14

the gathering of wild horses and burros. (ECF No. 24 at 31 (requesting that the Court

15

issue “a writ of prohibition preventing Defendants from gathering wild horses and

16

burros” and “an order and injunction compelling Defendants to immediately stop

17

implementation of the Blue Wing Complex Environmental Assessment”).) In contrast,

18

the Mandamus and Venue Act and APA Section 706(1) only allow the Court to compel

19

BLM to gather excess horses and burros more quickly. See 5 U.S.C. § 706(1); 28

20

U.S.C. § 1361. While this could fall within Plaintiffs’ blanket request that the Court

21

“[g]rant such additional and further relief to which Plaintiffs may be entitled,” compelling

22

the immediate removal of wild horses and burros would be obviously inconsistent with

23

Plaintiffs’ objectives. (ECF No. 24 at 31.) The Court declines to exercise its discretion to

24
25
26
27
28

within one year is not binding, the Court declines to find that Plaintiffs’ motion to compel
the production of an HMAP under the APA is prudentially moot. See Deutsche Bank
Nat’l Tr. Co. v. Fed. Deposit Ins. Corp., 744 F.3d 1124, 1135 (9th Cir. 2014) (noting that
a finding of prudential mootness is permissive). BLM’s voluntary commitment to
completing the HMAP by early May 2025 leads the Court to find that September 20,
2025, is a reasonable deadline.
20

1

grant such relief and thus denies Plaintiffs’ Motion and grants Defendants’ Motion as to

2

the Mandamus and Venue Act and APA Section 706(1) claims regarding the delay in

3

removing excess animals.

4

D. APA Section 706(2)(A)

5

The Court may also set aside agency action that is “arbitrary, capricious, an

6

abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).

7

Plaintiff challenges the BLM gathers in the Blue Wing Complex under APA Section

8

706(2)(A) because they were conducted without an HMAP in place, are not immediate,

9

and relied on stale population data.

10

1.

Failure to Prepare HMAP Before Gathering Animals

11

Plaintiffs do not argue that BLM’s decision to gather excess horses and burros in

12

the Blue Wing Complex without first approving and preparing an HMAP was arbitrary,

13

capricious, or an abuse of discretion; rather, they challenge this decision solely on the

14

basis that it was not in accordance with the WHA and its implementing regulations. As

15

the Court has already found that BLM may gather excess horses and burros even if no

16

HMAP is in place, Plaintiffs have not shown that BLM acted out of accordance with the

17

WHA or its implementing regulations. See Leigh I, 2024 WL 1345297, at *7.

18

2.

19

Plaintiffs next challenge BLM’s phased approach to gathering excess horses and

20

burros in the Blue Wing Complex as being inadequately justified and in violation of the

21

WHA’s immediacy requirement.

22

a.

Immediate Removal of Excess Animals

Arbitrary and Capricious Phased Gather

23

“An agency action qualifies as arbitrary or capricious if it is not reasonable and

24

reasonably explained.” Ohio v. Env’t Prot. Agency, 144 S. Ct. 2040, 2053 (2024)

25

(internal quotation marks omitted). In reviewing agency action under this standard, the

26

Court cannot “substitute its judgment for that of the agency,” id., but must still ensure

27

that, among other things, BLM has “articulate[d] a satisfactory explanation for its action

28

including a rational connection between the facts found and the choice made,” Motor
21

1

Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43

2

(1983); accord Ohio, 144 S. Ct. at 2053. BLM’s action may be arbitrary and capricious

3

“if the agency has relied on factors which Congress has not intended it to consider,

4

entirely failed to consider an important aspect of the problem, offered an explanation for

5

its decision that runs counter to the evidence before the agency, or is so implausible

6

that it could not be ascribed to a difference in view or the product of agency expertise.”

7

State Farm, 463 U.S. at 43.

8

Plaintiffs have not pointed to any specific reasons why BLM’s explanation for its

9

phased approach to gathers was inadequate. (ECF No. 50 at 37 (generally alleging,

10

without more, that “[n]othing in the Gather EA shows a rational connection between the

11

facts found and the plan that was adopted”).) Nor does the Court see any glaring issues

12

with the justification for the phased approach. “As Defendants explain, multiple round

13

ups may be a practical necessity where a single gather decision implicates hundreds or

14

even thousands of wild horses and burros, which cannot realistically be removed all at

15

once.” Friends of Animals v. Pendley, 523 F. Supp. 3d 39, 57 (D.D.C. 2021); accord

16

(ECF No. 60 at 37). BLM even noted in its Final EA that the selection of an alternative

17

would be influenced by “space and funding on a national level,” as “holding space

18

fluctuates depending on births/deaths and [BLM’s] ability to secure contracts for holding

19

space and/or establish new BLM facilities.” (Final EA at AR 3269.) BLM also explained

20

that it ultimately selected Alternative B because it would achieve the agency’s objectives

21

by reducing the likelihood of vehicular collisions with wild horses and burros, decreasing

22

resource competition, improving vegetation, removing excess wild horses and burros,

23

preserving the health and well-being of animals removed from the range, and achieving

24

the established AML. (ROD at AR 3538-39; Final EA at 3269 (stating the purpose and

25

need for the Gather Plan).) Finally, “BLM’s use of a single gather plan and a single [EA]

26

to cover a period of years and a series of individual gather operations is not a departure

27

from the agency’s past practice.” Friends of Animals v. Silvey, 820 F. App’x 513, 516

28

(9th Cir. 2020) (citing Leigh v. Salazar, No. 3:13-cv-00006-MMD-VPC, 2014 WL
22

1
2
3
4

4700016 (D. Nev. Sept. 22, 2014)); see also Pendley, 523 F. Supp. 3d at 57-58.
Plaintiffs have not established that BLM acted arbitrarily and capriciously by
selecting a phased gather alternative.
b.

Phased Gather in Violation of WHA’s Immediacy Requirement

5

Plaintiff argues that BLM’s phased approach to achieving the AML in the Blue

6

Wing Complex is not in accordance with law because it violates the WHA’s mandate to

7

“immediately remove excess animals from the range so as to achieve [AMLs]” once it

8

has been determined that “that an overpopulation exists on a given area of the public

9

lands and that action is necessary to remove excess animals.” 16 U.S.C. § 1333(b)(2).

10

The only agency action they have asked the Court to set aside, however, is the Final

11

EA, rather than the actual decision to implement a phased gather.13 (ECF Nos. 24 at 31;

12

50 at 37.) Cf. Friends of Animals v. Culver, 610 F. Supp. 3d 157, 162, 168-71 (D.D.C.

13

2022) (assessing BLM’s decision to implement a ten-year phased gather under APA

14

Section 706(2)(A)). Though Plaintiffs have included a blanket request for any other relief

15

they may be entitled, the Court declines to exercise its discretion to cure this deficiency

16

in Plaintiffs’ claim. See 16 U.S.C. § 1333(b)(2). As the EA simply analyzes the potential

17

environmental effects of different proposed alternatives, it does not violate the WHA’s

18

immediacy requirement. Plaintiffs’ request to set aside the EA for alleged

19

inconsistencies with the WHA is denied.

20

3.

21

Plaintiffs also argue that BLM violated WHA Section 1333(b)(1) by failing to use a

22

“current inventory” of wild horses and burros in finding that excess animals were present

23

on the Blue Wing Complex. (ECF No. 50 at 39.) The WHA is not so restrictive. The

24

Secretary of the Interior may use “(i) the current inventory of lands within [her]

25

jurisdiction; (ii) information contained in any land use planning completed pursuant to

26
27
28

Using Stale Population Inventory Data in Violation of the WHA

13The

Court later discusses Plaintiffs’ requested relief and construes their
complaint as requesting that the Court set aside both the EA and the FONSI. Including
the FONSI here does not affect the success of Plaintiffs’ claim and thus the Court will
refer only to the EA for simplicity.
23

1

section 1712 of Title 43; (iii) information contained in court ordered environmental

2

impact statements as defined in section 1902 of Title 43; and (iv) such additional

3

information as becomes available to [her] from time to time” to determine that an

4

overpopulation exists on public lands and that action is necessary to remove excess

5

animals. 16 U.S.C. § 1333(b)(1). But “in the absence of the information contained in (i-

6

iv) above,” the Secretary can instead rely upon “all information currently available” to

7

her in reaching these conclusions. Id. Plaintiffs do not argue that BLM relied upon only a

8

subset of available information but rather that BLM did not acquire new information in

9

reaching its removal decision. To the extent Plaintiffs challenge the recency of the data

10

BLM used in determining that excess wild horses and burros were present on the Blue

11

Wing Complex, their Motion is denied.

12
13
14

Plaintiffs’ Motion is denied and Defendants’ Motion is granted as to Plaintiffs’
third cause of action.
E. APA Section 706(2)(C)

15

BLM likewise did not act in excess of statutory jurisdiction, authority, or limitations

16

by gathering horses before preparing an HMAP for the Pancake Complex. See 5 U.S.C.

17

§ 706(2)(C). Again, the gather was congruent with the WHA and its implementing

18

regulations, and conducting a gather for an area which did not yet have an HMAP was

19

within BLM’s authority. Nor was the Final EA—the only agency action Plaintiffs have

20

asked the Court to set aside—issued in excess of BLM’s authority under the WHA.

21
22
23

Plaintiffs’ Motion is denied and Defendants’ Motion is granted as to Plaintiffs’
fourth cause of action.
F. NEPA Claims

24

The Court will now turn to whether the Final EA complies with NEPA. Although

25

NEPA lacks a substantive mandate, its “action-forcing” procedural requirements help

26

carry out a “national commitment to protecting and promoting environmental quality.”

27

Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348 (1989); accord 42

28

U.S.C. § 4331. One such means by which NEPA forces action is its requirement that
24

1

agencies take a “hard look” at the environmental consequences of their proposed

2

actions. See Kern v. BLM, 284 F.3d 1062, 1066 (9th Cir. 2002). This ‘hard look’ includes

3

conducting an environmental assessment (“EA”) in certain circumstances to inform

4

whether the agency prepares an environmental impact statement (“EIS”) or instead

5

issues a finding of no significant impact (“FONSI”). See 40 C.F.R. §§ 1501.5(c)(1),

6

1501.6(a).

7

Courts may examine an EA “to determine whether it has adequately considered

8

and elaborated the possible consequences of the proposed agency action when

9

concluding that it will have no significant impact on the environment.” 350 Montana v.

10

Haaland, 50 F.4th 1254, 1265 (9th Cir. 2022) (quoting Ctr. for Biological Diversity v.

11

Nat’l Highway Traffic Safety Admin., 538 F.3d 1172, 1215 (9th Cir. 2008)). Plaintiffs

12

challenge both whether BLM took the requisite “hard look” at its Gather Plan in its

13

assessment of potential impacts and alternatives, as well as whether BLM needed to

14

prepare a supplemental EA (“SEA”).

15

1.

Hard Look at Environmental Impacts

16

To satisfy NEPA’s ‘hard look’ requirement, agencies preparing an EA must

17

provide “a reasonably thorough discussion of the significant aspects of the probable

18

environmental consequences.” 350 Montana, 50 F.4th at 1265 (quoting Nat’l Highway

19

Traffic Safety Admin., 538 F.3d at 1194). Compiling an “exhaustive examination of each

20

and every tangential event that potentially could impact the local environment,”

21

however, would be an “impossible, and never-ending,” task. Tri-Valley CAREs v. U.S.

22

Dep’t of Energy, 671 F.3d 1113, 1129 (9th Cir. 2012). As a result, EAs are designed

23

“not to amass and disclose all possible details regarding a proposal but to . . . briefly

24

provide sufficient evidence and analysis for determining whether to prepare an [EIS] or

25

a [FONSI].” Id. at 1128 (cleaned up); accord 40 C.F.R. § 1508.1(j) (defining EAs as

26

“concise” documents). The agency’s analysis must include a “satisfactory explanation”

27

for its action so that the Court may assess “whether the process employed by the

28

agency to reach its decision took into consideration all the relevant factors.” Asarco, Inc.
25

1

v. U.S. Env’t Prot. Agency, 616 F.2d 1153, 1159 (1980).

2

Plaintiffs argue that BLM did not take a ‘hard look’ at the impacts of the Gather

3

Plan because the agency relied on stale data and did not adequately assess the

4

impacts of removing such a large portion of the horse and burro population. The Court

5

will conduct “a searching and careful inquiry into the facts” in reviewing these claims.

6

Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994).

7

a.

Reliance on Stale Data

8

The Final EA relies on animal population estimates from December 2014. (Final

9

EA at AR 3267.) Plaintiffs argue that BLM did not take a ‘hard look’ at the effects of the

10

Gather Plan on wild horses and burros in the Blue Wing Complex because the agency

11

used this ‘stale’ data.14

12

Relying on stale data can render an environmental review inadequate. See N.

13

Plains Res. Council, Inc. v. Surface Transp. Bd., 668 F.3d 1067, 1086-87 (9th Cir. 2011)

14

(holding that an agency’s reliance on stale data in preparing an EIS did “not constitute a

15

‘hard look’ under NEPA”); Lands Council v. Powell, 395 F.3d 1019, 1031 (9th Cir. 2005)

16

(same). NEPA’s ‘hard look’ standard therefore requires agencies to “conduct new

17

scientific studies in order to fully and fairly analyze the impacts of a particular project” in

18

some circumstances. League of Wilderness Defs./Blue Mountains Biodiversity Project v.

19

Connaughton, 752 F.3d 755, 763 (9th Cir. 2014) (citing N. Plains Res. Council, 668

20

F.3d at 1085-87 and Lands Council, 395 F.3d at 1030-31) (brackets and quotation

21

marks omitted). But Plaintiff has identified no cases, and the Court is not aware of any,

22

in which an otherwise sufficient EA violated NEPA for failing to conduct new population

23

surveys. See Idaho Conservation League v. Bonneville Power Admin., 667 F. App’x

24
25
26
27
28

14Plaintiffs

also challenged the recency of the AMLs, which were established in or
before 1999; however, as explained below, BLM provided appropriate reasons for
declining to increase the AML: available data showed that there was “insufficient water
and forage within the Complex to support an increase in the [] AML.” (Final EA at AR
3287.) Because this reasoning underscores the lack of evidence that the Blue Wing
Complex AMLs were no longer accurate, it was not arbitrary or capricious for BLM to
continue relying upon the existing AMLs.
26

1

214, 215-16 (9th Cir. 2016); cf. N. Plains Res. Council, 668 F.3d at 1085-87 (assessing

2

an EIS); Lands Council, 395 F.3d at 1030-31 (same).

3

Even if this standard does apply to the preparation of an EA, BLM did not violate

4

it. Plaintiffs’ argument “appears to misconstrue the contents of the administrative

5

record.” Friends of Rapid River v. Probert, 427 F. Supp. 3d 1239, 1258 (D. Idaho 2019),

6

aff’d in part, dismissed in part on other grounds, 816 F. App’x 59 (9th Cir. 2020) (looking

7

at compliance with National Forest Management Act (“NFMA”)). BLM relied on a

8

December 2014 aerial census in estimating the July 2017 wild horse and burro

9

population in the Blue Wing Complex. (Final EA at AR 3276-77.) But the agency also

10

updated the 2014 population estimate by incorporating estimations of the foal crops

11

from 2015, 2016, and 2017. (Id.) One of these updates took place in the six-month

12

period between the publication of the Preliminary EA in January 2017 and the Final EA

13

in July 2017, when BLM added in the 2017 foal crop. (Id.; Preliminary EA at AR 3072.)

14

Thus, even if the two-and-a-half-year-old aerial survey estimates were “stale” when

15

BLM issued the Final EA, those population estimates were updated three times, with the

16

most recent estimate occurring less than six months before the EA was published. Such

17

data was by no means stale. See N. Plains Res. Council Inc. v. BLM, No. CV 14-60-

18

BLG-SPW, 2016 WL 1270983, at *9-10 (D. Mont. Mar. 31, 2016), aff’d sub nom., 725 F.

19

App’x 527 (9th Cir. 2018) (BLM did not rely on stale data in preparing EA where it

20

supplemented 20-year-old EISes with recent observations); Hells Canyon Pres. Council

21

v. Connaughton, No. 3:11-CV-00023-PK, 2012 WL 13047991, at *5 (D. Or. Aug. 10,

22

2012), report and recommendation adopted as modified, No. 3:11-CV-00023-PK, 2013

23

WL 665134 (D. Or. Feb. 22, 2013) (holding, in the context of the NFMA, that “the Forest

24

Service may not rely exclusively on ‘stale’ monitoring information dating from decades

25

before the challenged decision” but “older data in conjunction with newer information

26

can suffice”); Friends of Rapid River, 427 F. Supp. 3d at 1258-59 (same).

27

Moreover, just because data is ‘old’—and again, this data is not—does not

28

necessarily mean it is unreliable. See Friends of Rapid River, 427 F. Supp. 3d at 125827

1

59. The traditional deference to agencies under the arbitrary and capricious standard is

2

“at its highest” where, like here, “a court is reviewing an agency action that required a

3

high level of technical expertise.” San Luis & Delta-Mendota Water Auth. v. Locke, 776

4

F.3d 971, 994 (9th Cir. 2014) (citing Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 377

5

(1989)). BLM theoretically could have conducted a new aerial survey but instead chose

6

to account for population growth by incorporating foal crop estimates. “Because there is

7

no evidence that the choice to use [the 2014] data rendered its findings unreasonable or

8

inaccurate,” the Court will defer to BLM’s technical expertise in calculating population

9

estimates for the Blue Wing Complex as of July 2017. Save the Colorado v. U.S. Dep’t

10

of the Interior, No. 23-15247, 2024 WL 1756103, at *3 (9th Cir. Apr. 24, 2024).

11

BLM did not violate NEPA by using the 2014 aerial survey data.

12

b.

Impacts of Removing Animals

13

Plaintiffs also generally argue that BLM failed to consider the impact of removing

14

such a large portion of the wild horse and burro population from the Blue Wing Complex

15

without specifying what specific impacts of that removal BLM ignored. (ECF Nos. 50 at

16

39 (citing almost 300 pages of the administrative record); 63 at 25.) BLM extensively

17

discussed numerous impacts of the chosen alternative in the Final EA, including its

18

effects on cultural resources, invasive and nonnative species, migratory birds, Native

19

American religious concerns, water quality, wetlands and riparian zones, wilderness,

20

recreation, soils, vegetation, and even wild horses and burros themselves—as well as

21

the cumulative impacts to all considered factors. (Final EA at AR 3328-3402.) On their

22

face, these analyses appear to be sufficient, and the Court will not engage in a fishing

23

expedition to identify deficiencies in the EA just because Plaintiffs have made vague

24

claims that they exist. It Plaintiffs’ burden, not the Court’s, to show that BLM violated the

25

law. See Protect Our Communities Found. v. Black, 240 F. Supp. 3d 1055, 1062 (S.D.

26

Cal. 2017), aff’d sub nom., Protect Our Communities Found. v. LaCounte, 939 F.3d

27

1029 (9th Cir. 2019) (“Plaintiffs bear the burden of showing that agency action violated

28

the APA.”).
28

1
2

Plaintiffs’ Motion is denied and Defendants’ Motion is granted as to whether BLM
failed to take a ‘hard look’ at the consequences of the Gather Plan.

3

2.

Consideration of Range of Alternatives

4

In addition to thoroughly assessing the Gather Plan’s environmental impacts,

5

BLM must have also considered a reasonable range of alternatives. Agencies

6

developing an EA for a proposal involving unresolved conflicts over how to use

7

available resources must consider “appropriate” alternatives to the proposed action,

8

including a ‘no action’ alternative. 42 U.S.C. §§ 4332(2)(C)(iii), (H); see also 40 C.F.R. §

9

1501.5(c)(2)(ii). Of course, not every possible alternative is appropriate or reasonable.

10

Agencies need not consider alternatives that do not advance the purpose of a project or

11

are otherwise infeasible or impractical. See Native Ecosystems Council v. U.S. Forest

12

Serv., 428 F.3d 1233, 1247 (9th Cir. 2005); Env’t Def. Ctr. v. Bureau of Ocean Energy

13

Mgmt., 36 F.4th 850, 877 (9th Cir. 2022), cert. denied sub nom. Am. Petroleum Inst. v.

14

Env’t Def. Ctr., 143 S. Ct. 2582 (2023); 40 C.F.R. § 1508.1(hh).15 Nor must agencies

15

engage in duplicative work by considering alternatives that are “substantially similar” to

16

other alternatives. Native Ecosystems Council, 428 F.3d at 1249. However, the

17

“existence of a viable but unexamined alternative renders an EA inadequate.” Env’t Def.

18

Ctr., 36 F.4th at 876 (brackets omitted).

19

This examination need not be extensive. Agencies’ “obligation to consider

20

alternatives under an EA is a lesser one than under an EIS,” and they may reject an

21

alternative without detailed discussion if they considered the alternative and provided

22

“an appropriate explanation . . . as to why [it] was eliminated.” Native Ecosystems

23
24
25
26
27
28

15Though

the NEPA implementing regulations have since been amended, the
purpose and need of the Gather Plan still determined the scope of reasonable
alternatives in 2017. See ’Ilio’ulaokalani Coal. v. Rumsfeld, 464 F.3d 1083, 1097 (9th
Cir. 2006) (“The scope of reasonable alternatives that an agency must consider is
shaped by the purpose and need statement articulated by that agency.”); Nw. Coal. for
Alternatives to Pesticides v. Lyng, 844 F.2d 588, 592 (9th Cir. 1988) (“[I]t is the scope of
the program that influences any determination of what alternatives are viable and
reasonable.”); Env’t Def. Ctr., 36 F.4th at 879 (“The NEPA regulations in effect at the
time the agencies issued the EA set forth criteria for the agencies to consider when
determining whether an action . . . requires a full EIS.”).
29

1

Council, 428 F.3d at 1246. The Court will now determine whether BLM insufficiently

2

considered three alternatives that would have increased the number of wild horses

3

remaining on the Blue Wing Complex: raising AMLs, limiting livestock use, and

4

implementing range improvements.

5

a.

Raising AMLs

6

BLM had no statutory or self-imposed requirements to assess the AML. The

7

WHA does not require BLM to determine new AMLs based on current conditions each

8

time the agency decides to restore an already-established AML. See In Def. of Animals,

9

751 F.3d at 1064 n.13. Nor must BLM show that an AML range remains valid before

10

relying upon it. See Friends of Animals v. BLM, 2018 WL 1612836, at *18 (D. Or. Apr. 2,

11

2018). Existing management plans likewise do not commit BLM to recalculating the

12

AML in any particular timeframe. (Winnemucca District RMP at AR 1828-29.16) See also

13

Friends of Animals v. Sparks, 200 F. Supp. 3d 1114, 1125 (D. Mont. 2016). So long as

14

the RMPs setting AMLs were in place, BLM was bound to manage the HMAs in

15

conformance with them. See 43 C.F.R. § 4710.1.

16

BLM also properly considered and rejected suggestions to increase the AML for

17

the Blue Wing Complex. (Final EA at AR 3287, 3517-19.) The agency found available

18

data did not indicate AMLs should be increased but instead showed that excess animals

19

were present and there was “insufficient water and forage within the Complex to support

20

an increase in the [] AML.” (Id. at 3287.) Plaintiffs have presented no evidence to the

21

contrary. Though commenters were concerned that AMLs were low for the size of the

22

Complex given BLM guidelines, BLM noted that the “AML is not a calculation of how

23

many acres per animal” but, again, “is based on many factors such as forage and water

24

availability, animal movement patterns, productivity and limitations of the range, trend,

25

RMP does state that when “monitoring data indicate that adverse impacts
on resources are occurring as a result of livestock, wild horses, or burros, appropriate
management actions (e.g., adjust AUMs or AMLs, fence, season of use) will be made to
the specific class of use (i.e., livestock, wild horses, burros) causing the impacts.”
(Winnemucca District RMP at AR 1829.) But, as discussed below, monitoring data did
not support increasing the AML.

26
27
28

16The

30

1

climate and actual use.” (Id. at 3518.) The Court will defer to BLM’s expert opinion that

2

the resource monitoring and population inventory data did not indicate that the AML

3

needed to be re-evaluated. (Handbook at AR 69 (recommending that BLM evaluate

4

AMLs when “resource monitoring and population inventory data indicates the AML may

5

no longer be appropriate”).) See N. Plains Res. Council, 668 F.3d at 1075.

6

As Plaintiffs have “failed to provide any support to show how adjusting AMLs

7

would reduce . . . or in any way promote the health of existing wild horse populations,”

8

BLM reasonably eliminated this alternative from analysis as contrary to the principles of

9

the WHA. Friends of Animals v. Silvey, 353 F. Supp. 3d 991, 1015 (D. Nev. 2018).

10

b.

Reductions in Livestock Grazing

11

According to Plaintiffs, BLM improperly eliminated from further consideration a

12

suggestion to reduce livestock grazing so that Blue Wing Complex could support more

13

wild horses. (ECF No. 50 at 39.) But BLM provided an “appropriate explanation as to

14

why it rejected the livestock reduction alternative: it simply could not reduce livestock

15

grazing allotments through the gather process.” Cloud Found. v. BLM, 802 F. Supp. 2d

16

1192, 1206 (D. Nev. 2011); accord Silvey, 353 F. Supp. 3d at 1016. As BLM noted in its

17

response to this suggestion, gather plans are “not the appropriate mechanism for

18

adjusting the authorized livestock use”; livestock allotments may only be changed

19

through the official amendment of an RMP, which requires public involvement,

20

preparation of an EA or EIS, interagency coordination, and other analysis. (Final EA at

21

AR 3287-88.) See Cloud Found., 802 F. Supp. 2d at 1206-07 (citing 43 C.F.R. §

22

1610.5-5). Lowering livestock grazing allotments was therefore outside the scope of the

23

Final EA.

24

Reducing livestock grazing to increase wild horse AMLs also was not a

25

reasonable alternative because it would have undermined the Gather Plan’s stated

26

purpose to “prevent undue or unnecessary degradation of . . . and to restore a thriving

27

natural ecological balance and multiple use relationship on the public lands.” (Final EA

28

at AR 3269, 3288.) See also Native Ecosystems Council, 428 F.3d at 1247. Due to the
31

1

differences in how livestock and wild horses and burros graze, BLM concluded that “re-

2

allocation of livestock AUMs to increase . . . AMLs would not achieve a thriving natural

3

ecological balance,” and that impacts from wild horses and burros could “only be

4

addressed by limiting their numbers to a level that does not adversely impact rangeland

5

resources and other multiple uses.” (Final EA at AR 3288.) “It is not [the Court’s] role to

6

question that informed scientific judgment.” Audubon Soc’y of Portland v. Haaland, 40

7

F.4th 967, 991 (9th Cir. 2022). BLM had no obligation to consider this alternative that

8

conflicted with the purpose of the Gather Plan. See Native Ecosystems Council, 428

9

F.3d at 1247-48. The livestock reduction alternative was properly considered and

10

eliminated.

11

c.

Range Improvements

12

BLM likewise did not abuse its discretion in deeming Plaintiffs’ suggested range

13

improvements to be outside the scope of the EA. Commenters recommended that BLM

14

develop more stable water sources to limit the migration of wild horses and burros.

15

(Final EA at AR 3530.) BLM responded that wild horses and burros often travel between

16

water sources that are as far as 20 miles apart, so additional stable sources of drinking

17

water would have little impact on their roaming. (Id.) Moreover, the Winnemucca District

18

was already developing a programmatic EA for the management and restoration of

19

riparian areas, which included developing off-site water sources. (Id.) Creating

20

additional water sources was therefore properly rejected as being both duplicative of

21

another BLM initiative and not advancing the purpose of the Gather Plan. See Native

22

Ecosystems Council, 428 F.3d at 1247.

23

Removing fencing was likewise properly rejected as not advancing the purpose

24

of the Gather Plan. See id. The contested fences only separated HMAs from HAs,

25

which have AMLs of zero. (Final EA at AR 3530.) See also 43 C.F.R. § 4710.4

26

(“Management of wild horses and burros shall be undertaken with the objective of

27

limiting the animals' distribution to herd areas.”). Wild horses could roam freely between

28

all the HMAs in the Complex and were not fenced off from areas they needed to access.
32

1

Taking out the fences, then, would do nothing to advance the Gather Plan’s purpose

2

and need.

3
4

BLM has fulfilled its duty to prepare appropriate alternatives for the EA and gave
those alternatives due consideration.

5

3.

6

Plaintiffs finally argue that BLM violated NEPA regulations when it did not issue a

7
8

Failure to Prepare a Supplemental EA

new or supplemental Gather Plan EA. (ECF No. 64 at 43, 45.) The Court disagrees.
a. Adequately Pled

9

As a threshold matter, Defendants object that Plaintiffs’ supplemental EA (“SEA”)

10

claim was not adequately raised in the FAC. The Federal Rules of Civil Procedure

11

require only that a complaint include “a short and plain statement of the claim showing

12

that the pleader is entitled to relief.” FED. R. CIVIL PROC. 8(a)(2). Though plaintiffs must

13

state a demand for the relief they seek, that demand “may include relief in the

14

alternative.” Id. at (a)(3). “This simplified notice pleading standard relies on liberal

15

discovery rules and summary judgment motions to define disputed facts and issues,”

16

rather than requiring plaintiffs to define all their claims perfectly before further

17

proceedings are conducted. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002).

18

The FAC meets these notice pleading requirements because Defendants have

19

received fair notice of Plaintiffs’ claims and the grounds upon which they rest. See id. at

20

514; Updike v. Multnomah Cnty., 870 F.3d 939, 952 (9th Cir. 2017). Plaintiffs did not

21

mention their request for a SEA in alleging their fifth cause of action, which seeks to

22

enforce NEPA through APA Section 706(2)(C). (ECF No. 24 at 29.) They instead

23

challenged BLM’s failure to prepare a SEA in their first through fourth causes of action

24

under the Mandamus and Venue Act and APA. (Id. at 25-29.) Although these causes of

25

action specifically mentioned the WHA and its implementing regulations, they were not

26

explicitly limited to the WHA. Plaintiffs even “incorporate[d] all previous allegations” and

27

alleged that Defendants’ actions injured them “in the manner described in this

28

Complaint” in their NEPA cause of action. (Id. at 29.) Construing the complaint liberally,
33

1

Defendants had fair notice that Plaintiffs’ SEA claims may arise under NEPA.
The liberal notice pleading standard has been met. The Court will proceed with

2
3

reviewing the claim on its merits.
b. Standard of Review

4
5

The Council on Environmental Quality recently updated its NEPA implementing

6

regulations as they pertain to SEAs. See National Environmental Policy Act

7

Implementing Regulations Revisions Phase 2, 89 Fed. Reg. 35442, 35477 (May 1,

8

2024). Previously, NEPA regulations only required supplemental environmental review

9

for EISes, and the Ninth Circuit extended this requirement to EAs as well. See COUNCIL
ENV’T QUAL., NATIONAL ENVIRONMENTAL POLICY ACT IMPLEMENTING REGULATIONS

10

ON

11

(2020), https://perma.cc/6YH2-F3QP; Earth Island Inst. v. U.S. Forest Serv., 87 F.4th

12

1054, 1069 (9th Cir. 2023) [hereinafter Earth Island v. USFS] (discussing the 2020

13

NEPA regulations). The currently operative regulations, however, now include specific

14

instructions for preparing SEAs. See 89 Fed. Reg. at 35477. Unlike the supplemental

15

EIS (“SEIS”) provisions which dictate when an agency ‘shall’ prepare a supplemental

16

review, see 40 C.F.R. § 1502.9(d)(1), the SEA regulation provides only the

17

circumstances under which agencies ‘should’ prepare a SEA, see 40 C.F.R. §

18

1501.5(h)(1). The use of ‘should’—especially when contrasted with the use of ‘shall’ for

19

SEISes—indicates that agencies are not obligated to prepare SEAs. See Est. of Gould

20

v. United States, No. CV 20-177-M-DWM, 2022 WL 2451377, at *5 (D. Mont. July 6,

21

2022), aff’d, No. 22-35563, 2023 WL 5453122 (9th Cir. Aug. 24, 2023) (finding that

22

‘should’ is “discretionary terminology”). The SEA regulation simply recommends that

23

agencies prepare SEAs in certain circumstances while leaving the ultimate choice of

24

whether to do so up to the agency.

25

SEAs are never legally required, so the Court cannot compel the agency to

26

prepare a SEA as an unreasonably delayed agency action or duty owed to Plaintiffs.

27

See SUWA, 542 U.S. at 63-64 (discussing APA Section 706(1)); Agua Caliente, 932

28

F.3d at 1216 (discussing the Mandamus and Venue Act). Nor have Plaintiffs made any
34

1

showing that not preparing a SEA for the Blue Wing Complex Gather Plan overstepped

2

BLM’s statutory jurisdiction, authority, or limitations. See 5 U.S.C. § 706(2)(C). The most

3

appropriate standard of review for not engaging in this discretionary environmental

4

review—and the standard of review under which Plaintiffs sought summary judgment on

5

their NEPA claims—is APA Section 706(2)(A)’s arbitrary and capricious standard. See

6

id. at § 706(2)(A).

7

c. Arbitrary and Capricious

8

The Court may hold unlawful and set aside agency action, findings, and

9

conclusions found to be arbitrary or capricious. See 5 U.S.C. § 706(2)(A). Plaintiffs’

10

concern here is that new information about impacts on burros renders the Final EA

11

outdated and necessitates a SEA addressing burro-specific issues. Their brief thus

12

expounds upon why BLM abused its discretion in failing to prepare a burro-focused

13

SEA. But the agency action they wish to set aside is BLM’s issuance of the Final EA

14

and FONSI,17 not a decision to gather burros without conducting a SEA or a decision

15

that a SEA is unwarranted. Cf. Earth Island v. USFS, 87 F.4th at 1069 (reviewing an

16

agency’s affirmative decision not to supplement an EA under the arbitrary and

17

capricious standard). Their claim therefore turns on whether the Final EA and FONSI

18

were arbitrary and capricious when BLM took those final agency actions in 2017.

19

The crux of Plaintiffs’ argument challenging the Final EA—or, more specifically,

20

its lack of a SEA—is that new studies and data undermining conclusions in the EA have

21

become available since 2017. This new data might show that BLM made flawed

22

assumptions about burros, but it does not establish that BLM “relied on factors

23

Congress did not intend it to consider, entirely failed to consider an important aspect of

24

the problem, or offered an explanation that runs counter to the evidence before the

25
26
27
28

17“Final

NEPA documents constitute ‘final agency action’ under the APA, whether
they take the form of an EIS and Record of Decision or an EA and FONSI, because
they culminate the agencies’ environmental review process.” Env’t Def. Ctr., 36 F.4th at
868. Though Plaintiffs only ask the Court to set aside the EA, the NEPA review process
did not conclude until BLM issued its FONSI and thus the Court reads Plaintiffs request
as including the FONSI. See id.
35

1

agency or is so implausible that it could not be ascribed to a difference in view or the

2

product of agency expertise.” Env’t Def. Ctr., 36 F.4th at 871. A decision cannot

3

retroactively become arbitrary and capricious simply because new scientific discoveries

4

are made. In the absence of any evidence that BLM should have been aware of the

5

discrepancies in impacts on burros and horses before issuing the EA and FONSI, the

6

Court will not set those actions aside.

7

Greater focus on the lack of an SEA still leaves Plaintiffs’ arguments unavailing.

8

Unlike an affirmative agency decision to say no to a request, an omission of an action

9

cannot be set aside. See SUWA, 542 U.S. at 63 (distinguishing ‘denials’ from ‘failures to

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act’). The Court cannot afford Plaintiffs any relief under Section 706(2)(A) with regard to

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BLM’s failure to prepare a SEA.
The Court denies Plaintiffs’ Motion and grants Defendants’ Motion as to all NEPA

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claims.

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IV.

REQUESTS FOR JUDICIAL NOTICE

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Plaintiffs first requested that the Court take judicial notice of additional

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documents to supplement the AR: (1) photographs and videos taken of Blue Wing

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Complex gather operations; (2) burro autopsy data, consisting of spreadsheets and a

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veterinary report that BLM provided to Laurie Ford in response to her FOIA request; (3)

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notes for 43 C.F.R. Part 4700; (4) 43 C.F.R. Part 4700 itself; and (5) 1984, 1986, and

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1991 Federal Register notices of rulemakings for 43 C.F.R. Part 4700. (ECF No. 51

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(“First Request”).) They then also requested that the Court take judicial notice of several

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filings from Leigh I. (ECF No. 65 (“Second Request”).) While Defendants believe judicial

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notice is not warranted for most of these documents, they oppose only Plaintiffs’ ability

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to reference the burro autopsy data.

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A. Photographs and Videos of the Gather

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The Court has already given Plaintiffs the ability to supplement the record with

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photographs, videos, and audio submitted regarding the Gather, so long as those

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materials are offered for the limited purpose of resolving Plaintiffs’ First Amendment
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claim. (ECF Nos. 47 at 6; 48 at 2-3; 49.) Plaintiffs’ First Request is therefore granted as

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to any photographs and videos of the 2022 gather.

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B. Burro Autopsy Data

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“Judicial review of agency actions should generally be confined to the original

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record upon which the actions were based.” Rybachek v. U.S. Env’t Prot. Agency, 904

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F.2d 1276, 1296 n.25 (9th Cir. 1990). “The reviewing court may consider information

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supplemental to the record only exceptionally,” id. (quotation marks omitted), and

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“limited exceptions operate to identify and plug holes in the administrative record,”

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Lands Council, 395 F.3d at 1030. In these limited circumstances, which are “narrowly

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construed and applied,” “district courts are permitted to admit extra-record evidence: (1)

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if admission is necessary to determine whether the agency has considered all relevant

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factors and has explained its decision, (2) if the agency has relied on documents not in

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the record, (3) when supplementing the record is necessary to explain technical terms

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or complex subject matter, or (4) when plaintiffs make a showing of agency bad faith.”

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Id. (internal quotation marks omitted).

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As explained above, admission of the spreadsheets and veterinary reports is not

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necessary to determine whether the Final EA and FONSI should be set aside as

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arbitrary and capricious. The EA and FONSI predate all the data Plaintiffs seek to

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introduce, making the content of the data irrelevant to the specific NEPA claims that

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Plaintiffs have brought before the Court. The spreadsheets and veterinary reports are

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likewise not needed to resolve Plaintiff’s First Amendment claim. There is accordingly

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no need for the Court to reference the burro autopsy data, and Plaintiffs’ First Request

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is denied as to these documents.

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C. Federal Register and Code of Federal Regulations

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Defendants informed the Court that they agree that “Plaintiffs are free to cite the

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law and relevant rulemaking documents, including Federal Register rules and regulatory

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history, in their merits brief.” (ECF No. 62 at 9.) Although it may be superfluous, the

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Court grants the First Request as to these documents because they are properly
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subject to judicial review as part of “the original record upon which the actions were

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based.” Rybachek, 904 F.2d at 1296 n.25.

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D. Leigh I Filings and Orders

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Defendants submitted a notice of their non-opposition to judicial notice of the

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documents from Leigh I. (ECF No. 73 at 6 n.1.) Defendants have therefore consented to

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the Court granting Plaintiffs’ Second Request. See R.S. Coppola Tr. - Oct. 19, 1995 v.

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Nat’l Default Servs., No. 3:21-CV-00281-MMD-CSD, 2022 WL 2753512, at *1 (D. Nev.

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July 13, 2022), aff’d sub nom., Coppola v. Nat’l Default Servs., No. 22-16212, 2023 WL

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6566493 (9th Cir. Oct. 10, 2023). The Second Request is granted.

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V.

CONCLUSION

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The Court notes that the parties made several arguments and cited several

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cases not discussed above. The Court has reviewed these arguments and cases and

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determines that they do not warrant discussion because they do not affect the outcome

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of the issues before the Court.

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It is therefore ordered that Plaintiffs’ motion for summary judgment (ECF No. 50)

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and Defendants’ motion for summary judgment (ECF No. 60) are granted in part and

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denied in part as discussed herein.

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The Court denies both Motions as to whether BLM’s selection of observations

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site and restriction of access to the Axtell Corrals violated the First Amendment. Thus,

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this is the only claim remaining for trial.

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The Court grants Defendants’ Motion and denies Plaintiffs’ Motion as to whether
BLM restrictions on accessing private holding corrals violated the First Amendment.

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The Court grants Plaintiff’s Motion and denies Defendants’ Motion as to the claim

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under the Wild Free-Roaming Horses and Burros Act that BLM unreasonably delayed

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preparing an HMAP but otherwise denied. Under 5 U.S.C. § 706(1), the Court compels

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Defendants to prepare and approve HMAP(s) covering the Pancake Complex HMAs

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within one year of the date of this order.

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The Court grants Defendants’ Motion and denies Plaintiffs Motion as to all claims
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arising under the National Environmental Policy Act.

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It is further ordered that Plaintiffs’ first request for judicial notice (ECF No. 51) is

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denied as to the spreadsheets and veterinary reports (ECF No. 51-2 at 9-36) but

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granted as to the other documents (id. at 5-8).

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It is further ordered that Plaintiffs’ second request for judicial notice (ECF No. 65)
is granted.

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It is further ordered that the Court finds it appropriate to refer this case to United

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States Magistrate Judge Brenda Weksler to conduct a settlement conference under LR

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16-5. The case is so referred. If the parties do not settle at the settlement conference, a

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joint proposed pretrial order on the First Amendment claims (sixth cause of action) is

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due within 30 days of the date the settlement conference is held.

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DATED THIS 23rd Day of September 2024.

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MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE

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