Friends of Animals et al v. United States Bureau of Land Management

Filing 17

ORDER granting 8 Motion for Preliminary Injunction. Signed by Judge Larry R. Hicks on 2/11/15. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***
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FRIENDS OF ANIMALS, and
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PROTECT MUSTANGS,
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Plaintiffs,
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v.
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THE UNITED STATES BUREAU OF LAND )
MANAGEMENT, an agency of the United
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States,
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Defendant.
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3:15-CV-0057-LRH-WGC
ORDER

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Before the court is plaintiffs Friends of Animals and Protect Mustangs’ (collectively

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“plaintiffs”) motion for a preliminary injunction. Doc. #8.1 Defendant the United States Bureau of

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Land Management (“BLM”) filed an opposition to the motion (Doc. #13) to which plaintiffs

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replied (Doc. #15).

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I.

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Facts and Background
Plaintiffs move for a preliminary injunction to enjoin the BLM from implementing its

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December 19, 2014 decision to gather and remove 332 wild horses from the Pine Nut Herd

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Management Area ("Pine Nut HMA"), permanently removing 200 of them, and administering the

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fertility control drug porcine zone pellucide ("PZP") to all mares one-year and older in the

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remaining 132 horses before they are released back into the Pine Nut HMA.

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Refers to the court’s docketing number.

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The Pine Nut HMA covers approximately 98,000 acres of land located in Carson, Lyon, and

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Douglas counties. The BLM previously determined that the appropriate herd management level

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("APL") for the Pine Nut herd is between 119-179 horses.2 In 2010, the BLM found that the Pine

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Nut herd had grown to approximately 215 horses. At that time, the BLM proposed a roundup of

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approximately 199 horses of which 67 were to be removed permanently, while 45 mares were to be

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dosed with PZP and then released back into the Pine Nut HMA with the remaining horses.

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Concurrently with the 2010 proposal, the BLM conducted an 80-plus page environmental

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assessment pursuant to the National Environmental Policy Act ("NEPA"), which examined the

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environmental impacts associated with wild horse management activities within multiple herd

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management areas under the jurisdiction of BLM's Carson City office (“2010 EA”).3 This initial

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Pine Nut roundup was completed at the projected level by the BLM in November 2010.

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On December 19, 2014, the BLM announced its plan for the current gather and PZP dosing

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of wild horses in the Pine Nut HMA. See Doc. #8, Exhibit E, Pine Nut Wild Horse Gather Decision

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Record. The proposed roundup is expected to last ten (10) days beginning on February 17, 2015, so

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that the gather will be finished before sage grouse breeding season which generally starts on March

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1st of each year. The BLM reached its gather decision based upon its estimate that the Pine Nut

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HMA currently contains approximately 332 wild horses, an amount well above the 119-179 APL.

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In contrast to the 2010 gather, the BLM's December 19, 2014 gather decision was not accompanied

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by any environmental assessment. Instead, the BLM relied on the 2010 EA and prepared a

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Determination of NEPA Adequacy ("DNA") to support its decision.4 In the DNA, the BLM

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The plaintiffs do not challenge the BLM’s APL finding in this action and there is no evidence before
the court that the Pine Nut HMA can sustainably support a larger number of wild horses.
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A complete copy of the Final Environmental Assessment: Clan Alpine, Pilot Mountain and Pine Nut
Herd Management Areas Gather Plan is attached as Attachment C to plaintiffs’ motion for a preliminary
injunction. See Doc. #8, Attachment C.
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A copy of the BLM’s Determination of NEPA Adequacy is attached as Attachment D to plaintiffs’
motion for a preliminary injunction. See Doc. #8, Attachment D.

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determined that the proposed gather plan was the same as the gather plan described in the 2010 EA

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as it related to the Pine Nut HMA, and thus, no new or supplemental NEPA analysis (either through

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an EA or an Environmental Impact Statement (“EIS”)) was required.

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On January 26, 2015, and in response to the BLM's December 19, 2014 gather decision,

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plaintiffs filed a complaint for declaratory and injunctive relief against BLM alleging two causes of

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action: (1) violation of the Administrative Procedures Act ("APA"); and (2) violation of NEPA.

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Doc. #1. Thereafter, on January 29, 2015, plaintiffs filed the present motion for a preliminary

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injunction. Doc. #8. The court held a hearing on plaintiffs’ motion on Monday, February 9, 2015.

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This order follows that hearing.

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II.

Legal Standard

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A. Preliminary Injunction Standard

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A court may grant a preliminary injunction upon a showing of: (1) irreparable harm to the

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petitioning party; (2) the balance of equities weighs in petitioner's favor; (3) an injunction is in the

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public's interest; and (4) the likelihood of petitioner's success on the merits. See Winter v. Natural

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Res. Def. Council, Inc., 129 S. Ct. 365, 376 (2008) (citations omitted). In Winter, the Supreme

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Court stated that a "likelihood" is required as to all four factors. See 555 U.S. at 22. The Ninth

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Circuit has since interpreted the Winter decision as being compatible with a sliding scale, under

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which a party may satisfy the requirements for an injunction with a lower showing under one factor

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if there is a very strong showing under another. See Alliance for the Wild Rockies v. Cottrell, 632

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F.3d 1127, 1131 (9th Cir. 2011). Under the sliding scale approach, the Ninth Circuit has

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determined that "serious questions" as to the merits would satisfy the "likelihood of success"

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requirement in the event of a strong showing of irreparable harm. Id.

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B. Administrative Procedures Act

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All of the claims in this case are governed by the Administrative Procedures Act, 5 U.S.C.

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§§ 701-706. Under the APA, a federal court "shall . . . hold unlawful and set aside agency action,

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findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise
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not in accordance with law." 5 U.S.C. § 706(2)(A); Or. Natural Res. Council Fund v. Brong, 492

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F.3d 1120, 1124-25 (9th Cir. 2007).

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Review under the arbitrary and capricious standard is narrow, and the court must not

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substitute its own judgment for that of the agency. Lands Council v. McNair, 537 F.3d 981, 987

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(9th Cir. 2008), overruling in part on other grounds recognized by Friends of the Wild Swan v.

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Weber, 767 F.3d 936, 949 (9th Cir. 2014). Nonetheless, the court must engage in a substantial

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inquiry of the agency's action. Brong, 492 F.3d at 1125. To meet its burden under this standard, an

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agency must present a "rational connection between the facts found and the conclusions made." Id.

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An agency's decision is arbitrary and capricious if it was not "based on a consideration of the

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relevant factors" or if there was a "clear error of judgment." Citizens to Preserve Overton Park, Inc.

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v. Volpe, 401 U.S. 402, 416 (1971).

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III.

Discussion

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A. Likelihood of Success on the Merits

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The sine qua non of preliminary injunction inquiry is likelihood of success on the merits: “if

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the moving party cannot demonstrate that he is likely to succeed in his quest, the remaining factors

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become matters of idle curiosity." New Comm Wireless Services, Inc. v. SprintCom, Inc.,

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287 F.3d 1, 9 (1st Cir. 2002). However, a plaintiff may be awarded a preliminary injunction by

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establishing "that serious questions going to the merits were raised and the balance of hardships

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tips sharply in the plaintiff's favor" so long as the plaintiff satisfies the additional Winter factors

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including irreparable harm and that a preliminary injunction is in the public's interest. Alliance for

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Wild Rockies, 632 F.3d at 1131.

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In their motion for a preliminary injunction, plaintiffs argue that they are likely to succeed

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on the merits of their complaint on the basis that the BLM violated NEPA by authorizing the

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currently proposed gather in the Pine Nut HMA without conducting a new or supplemental EA. See

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Doc. #8. The court agrees.

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The role of the courts with respect to NEPA is to ensure that an agency has adequately

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considered the environmental consequence of its action. Balt. Gas & Electric Co. v. Nat'l Res. Def.

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Council, Inc., 462 U.S. 87, 97-98 (1983). NEPA does not require that agency officials be impartial,

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only that they objectively evaluate the proposed projects. Metcalf v. Daley, 214 F.3d 1135, 1142

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(9th Cir. 2000).

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Here, it is undisputed that the BLM did not prepare a separate EA before their December

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19, 2014 decision to gather horses in the Pine Nut HMA. Rather, the BLM issued a DNA that relies

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upon the 2010 EA and the 2010 Finding of No Significant Impact ("FONSI") to support their gather

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decision. In their DNA, the BLM notes that the present herd of 332 horses is well above the APL

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for that area and that the large number of excess horses is having a negative effect on certain

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grazing areas, causing a loss of other wildlife habitat, and is harming the herd itself. The court is

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aware of the dangerous conditions in the Pine Nut HMA and elsewhere throughout Nevada caused

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by long drought conditions and larger than sustainable herd sizes. And it is these dangers that have

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caused the BLM to seek permanent removal of 200 wild horses from the Pine Nut HMA as well as

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fertility dosing of returning females.

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These considerations being noted, however, the BLM made its roundup decision without

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conducting an adequate analysis under NEPA. The court finds an insufficient legal basis for the

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BLM to rely upon the 2010 EA and 2010 FONSI to support its current roundup decision.

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Initially, it was never the expressed intention of BLM to rely upon the 2010 EA to support

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further roundups likely to occur four and five years later. In its introduction relative to the purpose

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and need for the proposed 2010 plan, the BLM outlined its proposal to conduct gathers in the three

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HMAs, to treat mares with a two-year fertility control vaccine and “to return to these HMAs in 2-3

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years, if necessary, to gather and retreat the mares to maintain the appropriate management levels

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through fertility control measures.” There was no expressed intention by BLM to have its 2010 EA

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extend beyond that time and there was no suggestion that the 2010 EA met requirements beyond

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2013. Moreover, in its responses to consolidated public comments concerning the 2010 EA, the
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BLM responded:
Although BLM currently intends to return to the areas in 2-3 years in order to maintain the
population control protocols by gathering and retreating the mares, future gathers will be
subject to a separate NEPA analysis and decision making process.
(2010 EA at page 72.)
Insofar as the Pine Nut HMA was concerned, the 2010 EA was also far narrower in scope

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than the current proposed roundup. In the 2010 EA, the BLM analyzed the gathering of 199 horses

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from the Pine Nut HMA with the permanent removal of 67 horses. In fact, the 2010 gather was

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completed in November 2010 in conformance with the BLM’s proposal and 46 horses were

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permanently removed. In comparison, the current plan proposes to gather 332 horses and to

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permanently remove 200 of them. This proposed roundup far exceeds the intensity and scope of

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what was proposed under the 2010 EA. Thus, the 2010 Pine Nut roundup was not contemplated or

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considered as justification for other or greater roundups in subsequent years.

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The court therefore concludes that the 2010 EA was not intended to serve as a viable NEPA

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analysis of a roundup of such a greater intensity and scope as the proposed 2015 roundup.

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Therefore, the court finds that plaintiffs have established that they are likely to proceed on their

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claim of a NEPA violation by the BLM.

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B. Irreparable Harm

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A plaintiff must show that an irreparable injury is likely, not merely possible, before a

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temporary restraining order may be issued. Am. Trucking Ass'ns v. City of Los Angeles, 559 F.3d

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1046, 1052 (9th Cir. 2009) (reversed on other grounds Am. Trucking Ass'ns v City of Los Angeles,

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596 F.3d 602 (9th Cir. 2010)) (emphasis added). "Issuing an [injunction] based only on a

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possibility of irreparable harm is . . . an extraordinary remedy that may only be awarded upon a

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clear showing that the plaintiff is entitled to such relief." Winter, 129 S. Ct. at 375-76.

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In this case, plaintiffs have established that there is a likelihood that if BLM implements its

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roundup, it will cause significant and irreparable harm to plaintiffs and their members. For

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example, plaintiffs have proffered several affidavits establishing that the roundup will cause
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plaintiffs to lose their positive personal connection with the wild horses in the Pine Nut HMA. See

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Doc. #8, Exhibit 1, Affidavit of Ms. Anne Novak; Exhibit 2, Affidavit of Mr. Craig Downer;

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Exhibit 4, Affidavit of Ms. Nicole Rivard. The proffered affidavits establish that plaintiffs and their

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members have visited, photographed, filmed, studied, and written about the Pine Nut herd in recent

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years and desire to do so in the future. The removal of 200 of these horses will adversely affect

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plaintiffs’ connection with this herd. Therefore, the court finds that plaintiffs have established a

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likelihood of irreparable harm absent an injunction.

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C. Balance of Equities

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In seeking a preliminary injunction, a plaintiff must demonstrate that his claim presents a

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serious question of law and that the current litigation has merit so as to avoid undue harm to the

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defendant. See Topanga Press, Inc. v. City of Los Angeles, 989 F.2d 1524, 1528 (9th Cir. 1993).

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Additionally, the plaintiff must suffer a degree of hardship that outweighs the hardship placed upon

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the defendants by the injunction. Id. Further, the primary goal of a preliminary injunction is simply

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to preserve the status quo until a trial on the merits can occur. RoDa Drilling Co. v. Siegal, 552

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F.3d 1203, 1208 (10th Cir. 2009).

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The court has reviewed the balance of equities and finds that the equities support an

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injunction. Although the BLM will be unable to gather the excess wild horses prior to the start of

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sage grouse breeding season, this delay will only last until the court has an opportunity to resolve

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the case on the merits, or until the BLM prepares an appropriate EA analyzing the proposed gather.

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Indeed, the BLM prepared an EA before conducting the 2010 gather in the Pine Nut HMA, and

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there is no reason it cannot prepare the required NEPA documentation in this case. Thus, the delay

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caused by the injunction is not enough to offset the BLM’s failure to comply with NEPA

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requirements.

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D. Public's Interest

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Before granting an injunction the court must determine that an injunction is in the public's

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interest. Winter, 129 S. Ct. at 375-76.
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Throughout the Wild Free-Roaming Horses and Burros Act, found at 16 U.S.C. §§ 1331

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et seq., Congress recognized that the public has a strong interest in maintaining a healthy and viable

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wild horse population for future use and enjoyment. Similarly, there is a substantial public interest

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in having government agencies comply with federal mandates and laws. See Fund for Animals v.

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Clark, 27 F. Supp. 2d 8, 15 (D.D.C. 1998) (holding that "the public has a general interest in the

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meticulous compliance with the law by public officials.").

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With the proposed Pine Nut roundup, the BLM is attempting to follow the policy of

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Congress that wild horses are to be protected at sustainable levels; however, it also appears to have

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failed to satisfy NEPA and other federal laws which are applicable. Accordingly, the court finds

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that the public interest will be best served by enjoining the BLM’s proposed gather, at least until

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the court has an opportunity to fully consider the merits of plaintiffs’ claims.

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IT IS THEREFORE ORDERED that plaintiffs’ motion for a preliminary injunction
(Doc. #8) is GRANTED.

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IT IS SO ORDERED.

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DATED this 11th day of February, 2015.

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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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