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Am. Wild Horse Preservation Campaign v. Salazar

United States District Court, D. Columbia.

September 11, 2012

AMERICAN WILD HORSE PRESERVATION CAMPAIGN, et al., Plaintiffs,
v.
KENNETH L. SALAZAR, Secretary of the Department of the Interior, et al., Defendants

For AMERICAN WILD HORSE PRESERVATION CAMPAIGN, WESTERN WATERSHEDS PROJECT, CLOUD FOUNDATION, CRAIG C. DOWNER, ARLA RUGGLES, Plaintiffs: William Stewart Eubanks, II, LEAD ATTORNEY, MEYER GLITZENSTEIN & EUBANKS LLP, Fort Collins, CO; Katherine A. Meyer, MEYER GLITZENSTEIN & EUBANKS LLP, Washington, DC.

For KENNETH LEE SALAZAR, Secretary of the Department of the Interior, BOB ABBEY, Director of the Bureau of Land Management, GARY MEDLYN, Field Manager for Egan Field Office, Bureau of Land Management, THOMAS SEELEY, Field Manager for Tonopah Field Office, Bureau of Land Management, JOHN RUHS, District Manager of the Ely District Office, Bureau of Land Management, Defendants: Joseph Thomas Mathews, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, ENRD Natural Resources Section, Washington, DC; Andrea Gelatt, U.S. DEPARTMENT OF JUSTICE, Environment & Natural Resources Division, Washington, DC.

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ORDER

BERYL A. HOWELL, Judge.

This case concerns a challenge by nonprofit groups and individual citizens of two administrative decisions made by the Interior Department's Bureau of Land Management (" BLM" ) in 2008 (" 2008 Ely Resource Management Plan" ) and 2011 (" 2011 Pancake Complex Gather Decision" ). Complaint (" Compl." ), ECF No. 1, ¶ ¶ 76-104; Pls.' Response to Federal Defs.' Mot. for Voluntary Remand, ECF No. 31 (" Pls.' Response" ), at 1. The plaintiffs 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 own regulations. Compl. ¶ ¶ 1-2, 76-104.[1]

After the plaintiffs filed a Motion for Summary Judgment, ECF No. 18, the defendants filed an Expedited Motion to Strike Extra-Record Evidence, ECF No. 19, seeking to exclude the plaintiffs' reference to and admission of four declarations from horse experts (" expert declarations" ). The Court denied the defendants' motion, see Memorandum Opinion and Order, ECF No. 26, and concluded that the expert declarations should have been considered as part of the Administrative Record when BLM made the 2011 Pancake Complex Gather Decision. Am. Wild Horse Preservation Campaign v. Salazar, No. 11-cv-02222, 859 F.Supp.2d 33, at *25-26 (D.D.C. May 9, 2012). The Court also denied the defendants leave to file evidence responsive to the expert declarations, noting that " [i]f the Defendants would like to consider and respond to the Expert Declarations as part of the [Administrative Record], BLM should seek a remand of its Pancake Complex Decision for reconsideration in light of the Expert Declarations." Id. at *41. Following the Court's denial of the Motion to Strike, the parties sought a stay of the case. See Consent Motion for Stay of Briefing, ECF No. 28. They then filed the Defendants' Motion for Voluntary Remand of the Pancake Complex Gather Decision (" Defs.' Mot. for Remand" ). See ECF No. 29. That motion is now pending before the Court. For the reasons explained below, the Court will grant in part and deny in part the defendants' motion.

I. Motion for Voluntary Remand

As noted, in the instant motion, the defendants seek a voluntary remand of the 2011 Pancake Complex Gather Decision. They do so " [i]n order to consider the declarations from specialists regarding proposed gathers involving gelding in the Little Colorado and White Mountain Herd Management Areas (HMAs) in Wyoming." Defs.' Mot. for Remand at 1 (" Defendants . . . move for a voluntary remand of the

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2011 Pancake Complex wild horse gather decision . . . ." ). The plaintiffs " generally consent to the relief requested" by the defendants. Pls.' Response at 2 (" Plaintiffs agree that a voluntary remand is the appropriate mechanism for Defendants to reconsider the Pancake Complex Gather Decision . . . ." ); Defs.' Mot. for Remand at 1.

The parties also agree that the Court should retain jurisdiction over this matter as a whole while the 2011 Pancake Complex Gather Decision is remanded to BLM. See Defs.' Mot. for Remand at 4; Pls.' Response at 2. The plaintiffs indicate that a reconsideration of the 2011 Pancake Complex Gather Decision will not directly implicate the plaintiffs' challenge to the 2008 Ely Resource Management Plan. See Pls.' Response at 2. Therefore, the plaintiffs suggest deferring summary judgment briefing on the 2008 Ely Resource Management Plan claim until BLM reconsiders the 2011 Pancake Complex Gather Decision. Id. at 2-3.[2] The plaintiffs argue that concurrent briefing is in the interests of " efficiency and economy." Id. at 3.

The parties differ in their positions on the instant motion slightly with respect to the timing of the stay they request. While the defendants request that the Court temporarily stay proceedings until June 20, 2014 " or until the parties resume litigation," Defs.' Mot. for Remand at 4, and that the case be " dismissed in its entirety" if the parties have not resumed litigation before June 20, 2014, see Defs.' Proposed Order, ECF No. 29-1, at 2, the plaintiffs request that the Court not dismiss the case until June 20, 2015 if the parties have not resumed litigation by then. Pls.' Response at 3. The plaintiffs also request that the Court order that BLM take no " management action" regarding any new Pancake Complex Gather Decision until at least 180 days after issuance of the decision. Id.

II. Discussion

The Court will grant in part and deny in part the ...


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