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American Wild Horse Preservation Campaign, et al., Plaintiffs v. Ken Salazar

May 9, 2012

AMERICAN WILD HORSE PRESERVATION CAMPAIGN, ET AL., PLAINTIFFS,
v.
KEN SALAZAR, SECRETARY OF THE DEPARTMENT OF THE INTERIOR, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Beryl A. Howell

MEMORANDUM OPINION AND ORDER

This case involves a challenge by nonprofit groups and individual citizens to administrative decisions made by the Interior Department's Bureau of Land Management ("BLM") in 2008 and 2011, which, inter alia, authorize the rounding up, castrating, and returning of gelded (or castrated) wild horses to public land in Nevada. See Complaint ("Compl."), ECF No. 1, ¶ 1. The Plaintiffs*fn1 allege that these administrative decisions violate the Wild Free-Roaming Horses and Burros Act ("WHA"), 16 U.S.C. §§ 1331-1340, the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4370f, the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551-706, and BLM's regulations. Compl. ¶¶ 1-2. On March 16, 2012, the Plaintiffs filed a Motion for Summary Judgment. ECF No. 18. In that Motion, the Plaintiffs relied, inter alia, on the declarations of four leading wild horse experts: (1) Dr. Anne Perkins (Ex. A), (2) Dr. Bruce Nock (Ex. B), (3) Dr. Jay Kirkpatrick (Ex. C), and (4) Dr. Allen Rutberg (Ex. D) (collectively, the "Expert Declarations"). Id., Ex. A-D. The Defendants now seek to strike the portions of the Plaintiffs' Motion for Summary Judgment and supporting memorandum that rely on the Expert Declarations. Pending before the Court is the Defendants' Expedited Motion to Strike Extra-Record Evidence and Memorandum in Support, ECF No. 19 ("Motion to Strike"), in which the Defendants seek to bar consideration of the Expert Declarations on grounds that (1) these declarations are not part of the Administrative Record ("AR"), and (2) the Plaintiffs erred in not seeking leave of the Court to supplement the AR with the Expert Declarations in accordance with the scheduling order, see Minute Order (Dec. 22, 2011) ("The plaintiffs shall file any motion to compel completion or supplementation of the Administrative Records or for review of extra-record documents by February 28, 2012."). For the reasons explained below, the Court denies the Defendants' Motion. The Court concludes that the Expert Declarations are part of the AR, so the Court also denies Defendants' request, see Motion to Strike at 2, for "leave to file responsive evidence" and for an adjustment of the summary judgment briefing schedule.

I. BACKGROUND

A. OVERVIEW OF PLAINTIFFS' CLAIMS

This case arises from a challenge to BLM's administrative decisions related to the management of wild horse populations on public lands, and particularly BLM's decision to round up horses, castrate the males, and then return the gelded (or castrated) horses ("geldings") to public land. Although the Plaintiffs' claims relate particularly to BLM's 2008 and 2011 administrative decisions affecting wild horses in an area known as Pancake Complex*fn2 located in central Nevada, the Plaintiffs argue that BLM's approach in Nevada is a "prototype for BLM wild horse management across the West . . . ." Pls.' Mem. in Opp. to Fed. Defs.' Mot. to Strike, ECF No. 22 ("Pls.' Mem."), at 2.

In 2011, two of the Plaintiffs in this case (AWHPC and WWP) were involved in a related lawsuit against BLM, challenging BLM's plans for the management of wild horses in the White Mountain and Little Colorado HMAs in Wyoming. BLM's plans for those two HMAs in Wyoming called for the round-up and removal of female horses and the castration of male horses, which would then be returned to the range. See Am. Wild Horse Preservation Campaign v. Salazar, 800 F. Supp. 2d 270, 271 (D.D.C. 2011) (Jackson, J.). The Plaintiffs relied on the same four Expert Declarations that are the subject of the pending Motion. Id. at 273 (noting that "all of the Declarations attached to plaintiffs' motion for preliminary injunction addressed the environmental, behavioral, genetic, physiological, aesthetic, social, and/or ecological effects of the particular population management approach embodied in the modified decision: castration."). Before a decision on the merits of Plaintiffs' challenges was released, however, BLM abandoned its rounding up and gelding plan while the lawsuit was pending. Despite the Plaintiffs' requests to proceed with the lawsuit because BLM had other proposed actions pending that included a gelding program, see id., the Plaintiffs' claims were dismissed as moot. Id. at 271. Following dismissal of that case, the Plaintiffs claim that BLM has considered using the gelding approach in other areas in both Wyoming and Nevada, including the Tri-State-Calico Complex in Nevada, the Great Divide Basin HMA in Wyoming, and the Red Desert Complex in Wyoming, but in the face of opposition has withdrawn this method in each of these locations. Pls.' Mem. at 5; see also Declaration of Suzanne Roy, ECF No. 22, Ex. A (dated Apr. 9, 2012) ("Roy Decl.") ¶ 7.

Notably, in each of the prior Wyoming and Nevada proceedings in which the gelding approach was considered by BLM, AWHPC submitted statements by the same experts whose declarations are at issue here. Roy Decl. ¶¶ 6-7; Pls.' Mem at 5. As AWHPC points out, "all of these declarations had been submitted to the [BLM] on several occasions long before BLM issued the decision that is challenged in this case, and specifically with reference to the agency's failure to consider the environmental impacts of its proposed strategy of returning gelded male horses to the range." Roy Decl. ¶ 1.

On November 28, 2011, BLM again announced plans to "pilot" a gelding program. BLM's Egan Field Office in Ely, Nevada released the Pancake Complex Final Decision ("Pancake Complex Decision") announcing that the BLM Egan and Tonopah Field Offices in Nevada had determined that there were "excess wild horses . . . present within and outside the boundaries" of the Pancake Complex, and proposing a "pilot" program involving the gelding approach to manage the horse population. See Decision Record, AR 11. BLM explained that the proposed action "is a pilot management alternative that calls for a phased-in approach [involving] gradually removing excess animals, implementing fertility control, adjusting sex ratios, and managing a portion of the herd as a non-breeding population of geldings." Id.

On December 14, 2011, following BLM's announcement about the Pancake Complex Decision, the Plaintiffs filed a Complaint challenging two decisions of BLM: (1) the 2008 Ely Resource Management Plan ("RMP"), and its accompanying Final Environmental Impact Statement ("FEIS"), in which the Plaintiffs claim that BLM authorized the removal of all wild horses in the "Jakes Wash" area of Nevada and a substantial reduction in the wild horse population in the Pancake Complex, and (2) BLM's November 28, 2011 Pancake Complex Decision, in which BLM sought to implement the Ely RMP with, inter alia, a "pilot" management program of castrating wild horses and returning these "geldings" to the range, without considering the various environmental impacts of this approach, and without preparing an Environmental Impact Statement ("EIS"). See Compl.; Pls.' Summ. J. Mem. at 1.

In their Complaint, Plaintiffs allege that BLM has (1) "violated its obligations under the WHA to 'protect and manage' these 'wild and free-roaming' horses as 'living symbols of the historic and pioneer spirit of the West' and to ensure that 'all management activities shall be at the minimal feasible level,'" Compl. ¶ 1 (quoting 16 U.S.C. §§ 1331, 1333(a)); (2) "violated its obligations under the [NEPA] by failing to adequately analyze the environmental consequences of its decision on the individual wild horses or the herds as a whole; failing to consider reasonable alternatives such as reducing the amount of livestock permitted on these lands; and failing to prepare an [EIS]," id. ¶ 1; (3) "violate[d] its own resource management plan for this area of public lands which requires it to 'protect' and 'maintain' viable, 'self-sustaining' herds of 'wild' horses while retaining their 'free-roaming' nature . . . ," id. ¶ 2, and (4) "violated its obligations under the [APA] by failing to consider the impacts of its actions on both the individual horses and wild populations as a whole; failing to explain the basis for its management choices; and failing to respond to significant comments in opposition to these management actions, including sworn declarations from biologists and others concerning the significant adverse [e]ffects such actions will have on these wild horses," id. The Plaintiffs ask that the Court enjoin the Defendants "from taking any further actions to roundup and remove any wild horses from the Pancake Complex, including Jakes Wash, until they have fully complied with the provisions of [the WHA, NEPA, and the APA]." Id. at 34.

The Plaintiffs have moved for Summary Judgment on their claims, relying in part on the Expert Declarations, which raise concerns about the management of wild horse populations using the method of gelding male horses. See ECF No. 18, Exs. A-D.

B. MOTION TO STRIKE

Before responding to the Plaintiffs' Motion for Summary Judgment, the Defendants moved to strike the Expert Declarations and any reference to them in the Plaintiffs' Motion for Summary Judgment. ECF No. 19. The Defendants claim that these Expert Declarations are not part of the AR because the comments submitted by the Plaintiffs in 2011 during the 30-day public comment period on the Preliminary Environmental Assessment ("PEA") for the Pancake Complex Decision did not include the four Expert Declarations. A brief overview of the circumstances surrounding this comment period, and leading up to the Plaintiffs' filing of their Motion for Summary Judgment, is helpful to understanding the Defendants' pending Motion, and why this Court must deny the Motion.

On September 28, 2011, less than one month after the August 8, 2011 dismissal of the lawsuit against BLM over its proposed gelding plan for two HMAs in Wyoming, BLM through its Egan Field Office announced its plans to include a gelding component in a horse roundup in the Pancake Complex. See AR 151. The Pancake Complex proposal called for the gathering of approximately 65 to 70% of the wild horses every two to three years with the goal of removing approximately 800 to 1,000 excess horses per gather for a period of six to ten years. See AR 162. The proposal said that "[a]pproximately 200 stallions would be gelded (castrated) and released back into the HMA's representing a non-reproductive component in the HMA." Id. at 163. According to BLM's proposal, the "targeted number of geldings would also be phased-in over two to three gather cycles in order to observe how the geldings are transitioning into the overall population as well as ...


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