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

Filing 12

MEMORANDUM DECISION AND ORDER denying 8 Motion for TRO. Signed by Judge Clark Waddoups on 2/25/15 (alt)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION

FRIENDS OF ANIMALS, and PROTECT
MUSTANGS,

MEMORANDUM DECISION AND
ORDER

Plaintiffs,
v.
Case No. 2:15-cv-00118-CW
THE UNITED STATES BUREAU OF
LAND MANAGEMENT, an agency of the
United States,

Judge Clark Waddoups

Defendant.

INTRODUCTION
This matter is before the court on Plaintiffs Friends of Animals and Protect Mustangs’
Motion for Preliminary Injunction and/or Temporary Restraining Order. (Dkt. No. 8). A hearing
on Plaintiffs’ motion was held before the Honorable Clark Waddoups on February 24, 2015. Joel
Ban and Michael Harris appeared on behalf of Plaintiffs, and Jared Bennett and Luther Hajek
appeared on behalf of Defendant. For the reasons stated below, Plaintiffs’ motion is DENIED.
BACKGROUND
The Bureau of Land Management (“BLM”) has jurisdiction over all wild free-roaming
horses and burros for the purpose of management and protection under the Wild Free-Roaming
Horses and Burros Act of 1971. See 16 U.S.C. § 1333 (2012); 43 C.F.R. 4700.0-1 (2015). The
BLM’s Cedar City Field Office is responsible for certain public lands in Iron and Beaver Counties
in Utah, which include the Sulphur Herd Management Area (“SHMA”). The Pinyon Management

Framework Plan of 1983, one of the applicable Land Use Plans governing management of that
area, allows for “the removal of horses as required to maintain horse numbers at or below 1982
inventory levels, but no less than 1971 levels.” (Dkt. No. 8, p. 32). This serves as the basis for the
herd’s Appropriate Management Level (“AML”) of not less than 135 and no more than 180
horses. (Dkt. No. 8, p. 44). As a practical matter and for purposes of correctly counting animals
eligible to be removed, the BLM’s goal is to maintain the herd at 250 animals.
In order to stay within those limits, the BLM has conducted periodic removals on a two to
three year cycle from 1987 to 2006. More recently, the BLM conducted an Environmental
Assessment (“EA”) in 2008 analyzing the removal of 350 horses, and in 2010 analyzing the
capture of 250 horses, the application of fertility control, and subsequent re-release of 220 horses.
To achieve the objective of the Plan, regular removal is necessary because the size of the herd
will double every three to four years due to survivability rates above 95%. Wild horses appear to
have few, if any, natural predators. Despite the removals, the herd is presently considerably above
the AML, with approximately 830 horses in the SHMA.
The BLM has been experiencing issues with horses leaving the SHMA and going onto
Highway 21. There are currently around 80 horses within a quarter of a mile of the highway,
which constitute a potential threat to oncoming vehicles. In fact, since December 2013, the BLM
has discovered three horses that have been hit and killed by vehicles on the highway. BLM’s
attempts to divert the horses from the area by means other than removal have been unsuccessful.
To address the safety issue, the BLM posted a notice and information on its online Environmental
Notice Bulletin Board about its plan to gather SHMA horses on December 3, 2014. Then, on
January 12, 2015, it issued a Decision Record authorizing the removal of approximately 100 wild
horses from a part of the SHMA adjacent to Highway 21. The Decision Record noted that the

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public could file any appeals with the Interior Board of Land Appeals within 30 days from the
date it was issued.
The BLM issued a press release about the upcoming gather on February 13, 2015, noting
that it was scheduled to begin on February 26, 2015. Because of inclement weather concerns,
including high winds that would make the flying of helicopters unsafe, the BLM rescheduled the
roundup operations to start on February 25 instead. They will take approximately two days to
complete. As the BLM does not conduct gathers during the wild horse foaling period (from
March to July), if they are unable to proceed as scheduled, the horse gathering would be faced
with a six month delay.
Plaintiffs state that they only learned about the roundup on February 21, 2015. They filed
a complaint on February 24, 2015, challenging the agency’s decision to round up the horses as a
violation of the National Environmental Policy Act (“NEPA”) and the Administrative Procedure
Act (“APA”). They also seek a preliminary injunction and/or temporary restraining order against
the BLM. They contend that if the BLM proceeds with the removal, they would lose their
intimate connection with horses that are removed, that they would be devastated by the loss of
100 horses, and that their recreational, aesthetic, and professional interest would be permanently
injured and significantly lessened by their removal. In addition, they cite concerns with the
potential trauma and physical harm that horses would suffer from the roundup.
ANALYSIS
The standard for preliminary injunctions and temporary restraining orders is the same.
Bachman ex rel. Bachman v. W. High Sch., 900 F. Supp. 248, 250 (D. Utah 1995) aff’d, 132 F.3d
542 (10th Cir. 1997).To obtain a preliminary injunction, the movant must show: “(1) a substantial
likelihood of success on the merits; (2) irreparable harm to the movant if the injunction is denied;

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(3) the threatened injury outweighs the harm that the preliminary injunction may cause the
opposing party; and (4) the injunction, if issued, will not adversely affect the public interest.”
General Motors Corp. v. Urban Gorilla, LLC, 500 F.3d 1222, 1226 (10th Cir. 2007). Because a
preliminary injunction is an extraordinary remedy, “it is the exception rather than the rule.” Id.
Accordingly, it should only be granted when the right to relief is “clear and unequivocal.” Nova
Health Sys. v. Edmondson, 460 F.3d 1295, 1298 (10th Cir. 2006).
I. Likelihood of Success on the Merits
Plaintiffs contend that the BLM’s January 12, 2015, decision to authorize the removal of
approximately 100 wild horses from the SHMA is in violation of NEPA. Specifically, they
contend that the agency erred in relying on past EAs from 2008 and 2010 instead of undertaking a
new or supplemental EA for the removal action in question. The BLM contends that no additional
EAs are necessary because the circumstances and impact of the present removal are substantially
the same as those analyzed in the earlier EAs.
Judicial review of agency action is governed by the APA, which states that a court shall
“hold unlawful and set aside agency action, findings, and conclusions” that are “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C. §
706(2)(A) (2012). The Supreme Court has identified the following four circumstances where an
agency decision is arbitrary and capricious:
[I]f the agency has [1] relied on factors which Congress has not intended it to
consider, [2] entirely failed to consider an important aspect of the problem, [3]
offered an explanation for its decision that runs counter to the evidence before the
agency, or [4] is so implausible that it could not be ascribed to a difference in view
or the product of agency expertise.

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Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins., 463 U.S. 29, 43 (1983).
A “presumption of validity attaches to the agency action,” with the burden of proof resting
on the party challenging such action. Colo. Health Care Ass’n v. Colo. Dep’t of Soc. Servs., 842
F.2d 1158, 1164 (10th Cir.). When reviewing an agency’s factual determinations, the court must
evaluate “whether the agency took a ‘hard look’ at information relevant to the decision.” New
Mexico ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 704 (10th Cir. 2009). Because
“[t]he NEPA process involves an almost endless series of judgment calls . . . . The line-drawing
decisions necessitated by this fact of life are vested in the agencies, not the courts.” Coal. On
Sensible Transp. v. Dole, 826 F.2d 60, 66 (D.C. Cir. 1987). Accordingly, the court’s task is not to
determine whether the BLM’s decision was ultimately correct, but whether the decision was made
in the right way.
NEPA is intended to foster (1) informed agency decision-making and (2) informed public
participation in the agency decision-making process. Citizens’ Comm. to Save Our Canyons v.
Krueger, 513 F.3d 1169, 1177–78 (10th Cir. 2008). Under NEPA, an agency’s factual
determinations must have been made after “the agency took a ‘hard look’ at information relevant
to the decision.” New Mexico ex rel. Richardson, 565 F.3d at 704. “When an agency takes the
requisite ‘hard look’ and ‘determines that the new impacts will not be significant (or not
significantly differently from those already considered), then the agency is in full compliance
with NEPA.’” Summit Lake Paiute Tribe of Nev. v. United States BLM, 496 Fed. Appx. 712, 715–
716 (9th Cir. 2012).
The BLM’s decision authorizing the removal of the horses includes a “Determination of
NEPA Adequacy” that the current proposed action is substantially the same as those previously
analyzed in the 2008 and 2010 EAs. The information contained in the 2008 and 2010 EAs

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supports a conclusion that the BLM took the requisite “hard look” at the relevant data. To begin
with, the scope of the 2008 EA is broad. In its identification of issues, it specifically notes that
“[w]ild horses have expanded outside of the HMA in search for forage, water, and cover.” (Dkt.
No. 8, p. 48). This is the exact concern that the BLM is addressing with the proposed gather,
given that the overpopulation of horses has resulted in overgrazing and reduced forage, which in
turn attracts horses to the grass growing on the side of the highway. Moreover, the 2008 EA
anticipates its information serving as the basis for “Reasonably Foreseeable Future Actions,”
noting that “[f]uture removals within the Sulphur HMA would utilize this information and
provide baseline data for future NEPA analysis.” (Dkt. No. 8, pp. 76–77).
The scenarios considered by the EAs are directly relevant to the present action. The
Determination notes that the 2008 and 2010 EAs analyzed the same gather and removal methods
that are going to be used in the proposed roundup. Both involved situations where more horses
(350 and 250 respectively) were to be removed. Since the current removal is only for 100 horses,
the agency states that it expects the impacts to fall well within the range described in the 2008 and
2010 EAs. This is because there is no new information or circumstances that would convey a
different picture of the affected environment. Notably, Plaintiffs have not alleged that there have
been any changes in the circumstances of the 2008 and 2010 EAs that would require additional
supplementation. The changes that have occurred since—including the continued increase in the
wild horse population, the accompanying increases in demand on rangeland resources, etc.—were
both anticipated and discussed in the EAs. As such, the alternatives analyzed in the EAs, as well
as the direct and indirect impacts they discussed, are fully applicable to the proposed action and
provide sufficient basis for a conclusion that the BLM has not acted arbitrarily or capriciously.
Accordingly, the court concludes that Plaintiffs are unlikely to succeed on the merits of their

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claims.
II. Irreparable Harm
A plaintiff seeking preliminary relief must demonstrate that irreparable injury is likely in
the absence of an injunction. Winter v. NRDC, Inc., 555 U.S. 7, 22 (2008). In this case, Plaintiffs
contend that the loss of 100 horses in the SHMA will cause irreparable harm by preventing them
“from being able to continue to view, study, and photograph, horses and bands they have come to
know and enjoy.” (Dkt. No. 8, p. 12). This is highly unlikely because there are still going to be at
least 730 horses left after the roundup is completed. In fact, the 2008 and 2010 EAs specifically
note that the herd will remain the same, and will actually benefit by the reduction in size.1 (Dkt.
No. 8, pp. 68, 142, 149–50). They also argue that once the project is completed, the horses in the
SHMA will individually and collectively be different than those with which they have intimate
relationships today. The problem with this contention is that any harm suffered by Plaintiffs
would be for having 100 less horses, which does not constitute a cognizable harm. Insofar as the
Land Management Plan limits the herd to no more than 180 horses,2 and a reduction of 100
horses would not bring the herd below that limit, Plaintiffs can have no legal entitlement to those
horses.
Plaintiffs’ allegations that roundups cause severe damage and often lead to death of wild
horses are unsubstantiated and without evidence. They are also directly contradicted by the 2008
and 2010 EAs, which note that there are no indications that the impact from handling stress
persist beyond a short time following the stress event and is expected to completely dissipate
following release, and that the mortality rate averages only one half of one percent. (Dkt. No. 8,
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Specifically, the 2008 EA found that “A reduction of wild horses would result in protecting wild horses from their
own proliferation and consequently the associated habitat loss resulting from overpopulation. Reduced competition
for forage and water between livestock, wildlife and wild horses would help to result in an improved ecological
balance by avoiding range deterioration.” Id. at 68.
2
Plaintiffs have not challenged the validity of the Land Management Plan or the AML.

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pp. 66, 148). Indirect impacts such as spontaneous abortions in mares are also very rare. Id. In
fact the 2008 EA notes that “[w]ith the exception of changes to herd demographics, direct
population-wide impacts have proven, over the last 20 years, to be temporary in nature with most
if not all impacts disappearing within hours to several days of release.” (Dkt. No. 8, p. 66).
Plaintiffs have simply not demonstrated that substantial injury to the horses is likely.
III. Balance of the Injuries
Plaintiffs have not shown that they will suffer an irreparable injury as a result of the
removal. On the other hand, granting the preliminary injunction and/or temporary restraining
order would impose a significant hardship on the BLM, who would be forced to postpone the
removal until July. This is compounded by the fact that the BLM has already amassed expenses in
preparation for the roundup. Plaintiffs’ delay in filing their motion until the eve of the gathering
significantly exacerbated the potential harm the BLM would suffer in the event they were
enjoined and provides independent grounds for denying their motion. The egregiousness of the
delay becomes clear by the fact that the BLM provided notice of its intent to remove horses in the
SHMA as early as December 3, 2014. The BLM then published its Decision Record on January
12, 2015 and provided for the filing of appeals within thirty days. Finally, the BLM issued a press
release on February 13, 2015 specifying the actual date the removal was to take place. The court
concludes that the BLM provided adequate notice, and any threatened injury alleged by Plaintiffs
does not outweigh the harm that an injunction would have on the BLM.
IV. Public Interest
The public interest weighs heavily against granting the preliminary injunction and/or
temporary restraining order. The BLM has adequately shown that delaying the roundup until July
would lead to a worsening problem with horse overpopulation in the SHMA, an increased

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deterioration of the environment, and a greater potential for human accidents. The fact that
approximately 80 horses were recently observed within a quarter of a mile from the highway
underscores the severity of the problem. The public has an interest in the safety of highways and
the surrounding community. Since a reduction in horses is actually beneficial for the herd and
serves to preserve the area, the public interest will be best protected by the denial of Plaintiffs’
motion.
CONCLUSION
It is therefore ORDERED that Plaintiffs’ Motion for Preliminary Injunction and/or
Temporary Restraining Order (Dkt. No. 8) is DENIED.
DATED this 25th day of February, 2015.
BY THE COURT:

______________________________
Clark Waddoups
United States District Court Judge

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