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American Wild Horse Preservation Campaign v. Vilsack

United States District Court, D. Columbia

September 30, 2015

AMERICAN WILD HORSE PRESERVATION CAMPAIGN, et al., Plaintiffs,
v.
TOM VILSACK, Secretary, U.S. Department of Agriculture, et al., Defendants

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          For AMERICAN WILD HORSE PRESERVATION CAMPAIGN, CARLA BOWERS, RETURN TO FREEDOM, Plaintiffs: William Stewart Eubanks, II, LEAD ATTORNEY, MEYER GLITZENSTEIN & EUBANKS LLP, Fort Collins, CO; David Lawerence Zaft, Matthew W. O'Brien, PRO HAC VICES, CALDWELL LESLIE & PROCTOR, PC, Los Angeles, CA; Jeffrey D. Pierce, PRO HAC VICE, ANIMAL LEGAL DEFENSE FUND, Cotati, CA.

         For THOMAS J. VILSACK, Secretary, U.S. Department of Agriculture, THOMAS L. TIDWELL, Chief, U.S. Forest Service, ANN D. CARLSON, Acting Supervisor, Modoc National Forest, U.S. Forest Service, Defendants: Meredith L. Flax, Stuart Campbell Gillespie, LEAD ATTORNEYS, U.S. DEPARTMENT OF JUSTICE, Washington, DC.

         For CALIFORNIA CATTLEMEN'S ASSOCIATION, CALIFORNIA FARM BUREAU FEDERATION, PUBLIC LANDS COUNCIL, NATIONAL CATTLEMEN'S BEEF ASSOCIATION, MODOC COUNTY, WILLIAM FLOURNOY, CAROLYN CAREY, JAMES PETER CAREY, MIKE BYRNE, Intervenor Defendants: Paul Burton Smyth, LEAD ATTORNEY, PERKINS COIE LLP, Washington, DC; Caroline M. Lobdell, PRO HAC VICE, WESTERN RESOURCES LEGAL CENTER, Portland, OR.

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         MEMORANDUM OPINION

         AMY BERMAN JACKSON, United States District Judge.

         Plaintiffs the American Wild Horse Preservation Campaign, Carla Bowers, and Return to Freedom have brought this action against the Secretary of the United States Department of Agriculture, Thomas J. Vilsack; the Chief of the United States Forest Service, Thomas Tidwell; and the Acting Director of the Modoc National Forest, Ann Carlson. Compl. [Dkt. # 1]. The case arises out of the Forest Service's 2013 management plan for the Devil's Garden Wild Horse Territory (" WHT" ). Id.

         The Devil's Garden WHT is a wild horse territory located in the Modoc National Forest in California. Id. ¶ 1. Plaintiffs acknowledge that the territory consisted of two separate, non-contiguous parcels when it was established in 1975. Id. ¶ 39. However, they allege that at some point in the 1980s, the Forest Service adjusted the borders of the WHT to create a larger, unified territory, and that these more expansive borders were also recognized in a 1991 forest plan. Id. ¶ ¶ 39-40. In this lawsuit, they claim that the Forest Service acted improperly in 2013, when it adopted a new management plan which delineated the territory's borders in accordance with the original 1975 layout and explained that any previous references to one contiguous territory were the result of " administrative error." Id. ¶ ¶ 3-4, 48-49. The Forest Service also adjusted the territory's minimum wild horse population threshold, called the appropriate management level (" AML" ). Id. ¶ ¶ 5-6, 51-52. Plaintiffs allege that these decisions are contrary to multiple statutes and reflect arbitrary and capricious agency action in violation of the Administrative Procedure Act (" APA" ), 5 U.S.C. § 706(2). Id. ¶ ¶ 58-91.

         Plaintiffs' first set of challenges to the Forest Service's actions are premised upon

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their assertion that the disputed 25,000-acre parcel -- which lies between the two original non-contiguous portions of the Devil's Garden WHT -- was made an official part of the WHT at some point prior to 2013. In its 2013 environmental assessment, the Forest Service explained that any previous drawings or plans that appeared to incorporate the parcel -- and unite the territory's two non-contiguous halves -- had done so in error. The Court does not find this action to have been unreasonable or unlawful. Plaintiffs have failed to demonstrate that the disputed parcel was ever formally incorporated into the Devil's Garden WHT through the required public process or that it could have been. So they are unable to meet their burden to show that the record does not support the agency's 2013 decision to correct and clarify the boundaries.

         With respect to the second issue raised in the complaint, the Forest Service has articulated a rational connection between the facts it found and its choice to broaden the AML range for the Devil's Garden WHT. Thus, the Court finds that the challenged actions were not arbitrary and capricious or contrary to law, and it will grant defendants' cross-motion for summary judgment.

         BACKGROUND

         The complaint recognizes that the Devil's Garden WHT consisted of two separate, non-contiguous parcels, totaling an estimated 236,000 acres, when it was established in 1975. Compl. ¶ 39. Plaintiffs allege that at some point in the 1980s, the Forest Service adjusted the borders of the WHT to create one contiguous territory of roughly 258,000 acres. Id. Plaintiffs further claim that the Forest Service improperly revised those borders in 2013. Id. ¶ ¶ 3-4. They seek to vacate the Forest Service's clarification of the territorial borders and its simultaneous adjustment of the AML as arbitrary and capricious under the APA, and on the grounds that the agency's actions violated all of the applicable statutes. Id. ¶ 8.

         I. Statutory Framework

         Three statutory schemes control the Forest Service's management of the Devil's Garden WHT and form the basis for plaintiffs' challenges to the decisions embodied in the 2013 environmental assessment and management plan: the Wild Free-Roaming Horses and Burros Act (" Wild Horses Act" ), 16 U.S.C. § § 1331-1340, the National Forest Management Act (" NFMA" ), 16 U.S.C. § § 1600-1687, and the National Environmental Policy Act (" NEPA" ), 42 U.S.C. § § 4321-4370.

         The Wild Horses Act, passed in 1971, states that wild horses and burros " shall be protected from capture, branding, harassment, or death; and to accomplish this they are to be considered in the area where presently found, as an integral part of the natural system of the public lands." 16 U.S.C. § 1331. The Act requires the Forest Service to " protect and manage" wild horse populations on lands under its administration in order to " achieve and maintain a thriving natural ecological balance." Id. § 1333(a). To manage the wild horses, the Forest Service has established wild horse and burro territories on " lands which were territorial habitat of wild free-roaming horses and/or burros at the time of the passage of the Act," and it develops and maintains a " management plan" for each territory. 36 C.F.R. § § 222.60(b)(15), 222.61(a)(3)-(4). Each unit or subunit of a wild horse territory is assigned an appropriate management level, or AML, which represents the number of animals the territory can sustainably support. 16 U.S.C. § 1333(b)(1).

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          The National Forest Management Act requires the Forest Service to " develop, maintain, and, as appropriate, revise" a Land and Resource Management Plan (herein, a " forest plan" ) for all sections of the National Forest System. Id. § 1604(a). While a management plan under the Wild Horses Act applies to a specific wild horse and burro territory, a forest plan under the NFMA governs a particular unit of the National Forest System. The Forest Service may make non-significant amendments to a forest plan " in any manner whatsoever" after giving public notice. Id. § 1604(f)(4). However, significant amendments to a forest plan must undergo more extensive approval procedures and require greater public involvement. Id.

         The National Environmental Policy Act requires all federal agencies to analyze the impact of any agency action " significantly affecting the quality of the human environment." 42 U.S.C. § 4332(C); see also 40 C.F.R. § 1508.27 (listing factors to be considered in reaching a determination of significance). Under NEPA, an agency must first prepare an environmental assessment (" EA" ), which briefly discusses the environmental impacts of the proposed agency action and sets out " sufficient evidence and analysis for determining whether to prepare" one of two additional documents: an environmental impact statement (" EIS" ) or a finding of no significant impact (" FONSI" ). 40 C.F.R. § § 1501.4(b), 1508.9. If the agency finds, on the basis of the EA, that the proposed action will have a significant impact on the quality of the human environment, it must prepare an EIS, which examines five factors relevant to the cumulative environmental impact of the action. 42 U.S.C. § 4332(C). If, however, the agency finds that the action does not significantly affect the environment, it need only prepare a FONSI setting forth the reasons " why an action . . . will not have a significant effect on the human environment and for which an [EIS] therefore will not be prepared." 40 C.F.R. § 1508.13; see also id. § 1501.4(b), (e).

         II. History of the Devil's Garden WHT

         After the passage of the Wild Horses Act in 1971, the Forest Service established a wild horse territory at Devil's Garden, a large, flat plateau located within the Modoc National Forest in northeastern California. See AR02969-70.[1] The first formal Devil's Garden WHT management plan was issued in 1975. AR02965-97 (the " 1975 Management Plan" ). It provided for a wild horse territory " broken into two large units which encompasses a gross acreage estimated at 236,000 acres." AR02970-71.

         The two ranges were separated by a strip of land that was not incorporated into the Devil's Garden WHT when it was established. See, e.g., AR00157 (depicting the " 1975 Wild Horse Territory" ). This strip, which the Court will refer to as the " disputed territory," consisted of the Triangle Ranch and Avanzino Ranch grazing lands, some of which were privately-owned. See, e.g., AR00156 (" The Avanzino and Triangle private ranch lands which lay in between the West and East home ranges were not included in the WHT." ). It also included portions of the Carr, Big

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Sage, and Timbered Mountain livestock grazing allotments. See, e.g., AR03927 (showing boundaries of grazing allotments in red and boundaries of Devil's Garden WHT in yellow). In 1976, the Forest Service acquired the Triangle Ranch lands through a land exchange and incorporated them into the Modoc National Forest. AR03965; AR03968. However, the Forest Service did not make the Triangle Ranch lands part of the Devil's Garden WHT at that time. See AR03998 (1979 Decision Notice stating that " Triangle is not part of a designated horse management unit" ).

         The Forest Service revised the Devil's Garden WHT management plan in 1980, AR02949-64 (the " 1980 Management Plan" ), and again described the Devil's Garden WHT as a territory " broken into two large units which encompasses a gross acreage estimated at 236,000 acres." AR02953. In 1982, the Forest Service issued another management plan, AR02839-51 (the " 1982 Management Plan" ), which again characterized the Devil's Garden WHT as a territory " broken into two large units which encompasses a gross acreage estimated at 236,000 acres." AR02843.[2]

         In 1991, the Forest Service revised the forest plan for Modoc National Forest. AR02838 (the " 1991 Forest Plan" ).[3] It incorporated by reference all existing resource management plans that it found to be consistent with, and appropriate for, the 1991 Forest Plan, which included the existing Wild Horse Management Plan. Id. at 1-1. But this time, the 1991 Forest Plan stated that the Modoc National Forest " has one wild horse territory of about 258,000 acres," id. at 3-18, and it observed that " [u]nder the Wild Horses and Burros Act, the Forest is legally obligated to manage horses within [that] 258,000-acre wild horse territory." Id. at 3-17. The plan included a statement that the Forest Service " prepared the Wild Horse Management Plan in 1985," [4] which had " identifie[d] a population objective of 275-335 animals to manage." Id. at 3-18 to 3-19.

         In July 2011, the Forest Service issued a scoping notice, seeking comments on proposed updates to the existing Devil's Garden WHT management plan, including an adjustment to the AML range of 275 to 335 animals established in the 1991 Forest Plan. AR03911-20. The scoping notice stated that the Devil's Garden WHT " is approximately 268,750 acres in size," AR03911, and it included a map depicting one contiguous territory. AR03919-20.

         In August 2012, the Forest Service entered into a cost-sharing agreement with the Modoc County Farm Bureau (" Farm Bureau" ) for the development of the new Devil's Garden WHT management plan. AR04700-23. The Farm Bureau agreed to collect, summarize, and evaluate all data, prepare the draft EA and the final EA, and provide support for any appeal. AR04713. The Forest Service was to supervise the Farm Bureau's specialists, employ its own specialist to review the specialists' reports, review and comment on

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the draft EA, and prepare the notice of decision and any finding of no significant impact. AR04714.

         The Forest Service issued another scoping notice in December 2012, AR03809, and attached a proposed action to that notice. AR03810-24 (the " Proposed Action" ). In the Proposed Action, the Forest Service described the Devil's Garden WHT as consisting of " approximately 232,520 acres of federal land." AR03810. It also stated that " [t]he territory comprised West and East home ranges in the areas where it was known that wild free-roaming horses ranged in 1971," and that " [t]he Avanzino and Triangle private ranch lands which lay in between the West and East home ranges were not included in the WHT." AR03811.

         The Proposed Action also recognized that " [d]uring the mid-1980's, the [Forest Service] appears to have adjusted the WHT boundary for administrative convenience," incorporating the disputed territory into the WHT, " including Triangle Ranch lands acquired in 1976 and the Avanzino Ranch (41 percent of which remains in private ownership)." Id. It stated that " [a]n administrative error was made in expanding the WHT beyond the herd's known territorial limits," and it added that the " [i]nclusion of the Triangle Ranch lands . . . was clearly in error." AR03812. The Forest Service therefore " propose[d] to return to the management of wild horses within the WHT boundary established in 1975," which did not include the disputed territory. Id. The Proposed Action also included a proposal to amend the 1991 Forest Plan to remove the fixed AML range of 275 to 335 animals and to establish the AML range in the WHT management plan instead, which would be updated as necessary when wild horse population and resource monitoring data suggested the existing AML range was no longer appropriate. AR03815.

         Also in December 2012, the Forest Service released the Resource Monitoring Report for the Devil's Garden WHT, AR00622-95, in which it again characterized the territory as consisting of two non-contiguous parcels. See AR00627 (discussing " the approximately 232,521 acre Devil's Garden Plateau Wild Horse Territory" with map depicting two separate territories).

         One month later, in January 2013, the Forest Service published a report evaluating the monitoring data collected to establish a new AML range for the Devil's Garden WHT. AR00542-621 (the " AML Evaluation" ). This document also stated that the inclusion of the disputed territory in the Devil's Garden WHT was the " result of an administrative error," and it noted that " the AML was established as 0 wild horses" for the disputed territory. AR00547. The AML Evaluation went on to recommend an AML of 206 to 402 horses for the two-unit WHT, with an AML range of 105 to 183 horses on the Western portion and 101 to 219 horses on the Eastern portion. AR00552.

         In April 2013, the Forest Service released the draft EA for the proposed changes to the management of the Devil's Garden WHT. AR03453-658 (the " Draft EA" ). The Draft EA stated that the Devil's Garden WHT " comprises approximately 232,520 acres of federal land," AR03459, and like the Proposed Action, it recognized that the boundary of the Devil's Garden WHT appeared to have been adjusted " for administrative convenience" during the 1980s as a result of " an administrative error." AR03462; AR03465. It proposed " to return to the management of wild horses within the WHT boundary established in 1971." AR03465.

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          After a notice and comment period, in which plaintiffs participated, see AR03333-54, the Forest Service published its final EA in August 2013. AR00146-386 (the " Final EA" ). The Final EA once again stated that the inclusion of the disputed territory in the Devil's Garden WHT had been " [a]n administrative error," and it described the total acreage of the Devil's Garden WHT as 232,520 acres of federal land, and not the larger 258,000 acres that would include the disputed territory. AR00154-59. It proposed establishing an AML of 206 to 402 wild horses for the Devil's Garden WHT, and " return[ing] to the management of wild horses within the WHT boundary established in 1971." AR00153; AR00159. The Final EA also responded to plaintiffs' comments opposing the boundary correction, explaining that " the 1991 Forest Plan erroneously included" the disputed territory as within the boundaries of the Devil's Garden WHT. AR00373-74.

         Incorporating the Final EA by reference, the Forest Service published its Decision Notice and FONSI in August 2013, AR00100-13 (" Decision Notice & FONSI" ), in which it found that the boundary correction and the AML adjustment would " not have a significant effect on the quality of the human environment." AR00106. It formally adopted the proposed action set forth in the Final EA, AR00100, which delineated the boundary of the Devil's Garden WHT to be consistent with its original form, with two non-contiguous territories totaling approximately 232,520 acres, and which revised the AML range to 206 to 402 horses. See AR00153; AR00159. Along with the Decision Notice and FONSI, the Forest Service issued a new management plan, which incorporated the new AML range and adopted the territorial boundary as it was established in the 1975 Management Plan. AR00114-45 (the " 2013 Management Plan" ).

         III. Procedural History

         During the administrative process, plaintiffs the American Wild Horse Preservation Campaign (" AWHPC" ) and Bowers provided comments on both scoping notices and the Draft EA. See AR00315; AR00318-19; AR00353-54. In October 2013, after the release of the Decision Notice and FONSI, the Final EA, and the 2013 Management Plan, plaintiffs AWHPC and Bowers filed a timely administrative appeal. AR00068-94. In January 2014, the Appeal Deciding Officer affirmed the Forest Service's actions. AR00001-03. This decision constituted the final administrative determination in this matter. AR00003.

         Plaintiffs initiated this action on March 24, 2014. Compl. They bring six claims against defendants, all under the APA. In Counts I, II, and III, plaintiffs allege that the boundary clarification was arbitrary and capricious because it violated the Wild Horses Act, the NFMA, and NEPA, and in Counts IV, V, and VI, they claim that the adjustment to the AML range was arbitrary and capricious because it was contrary to the same three statutes. Id. ¶ ¶ 58-91.

         Plaintiffs filed the instant motion for summary judgment on November 17, 2014. Pls.' Mot. for Summ. J. [Dkt. # 20] (" Pls.' Mot." ); Mem. in Supp. of Pls.' Mot. [Dkt. # 20] (" Pls.' Mem." ). Defendants filed a cross-motion for summary judgment on January 12, 2015. Defs.' Mot. for Summ. J. [Dkt. # 22] (" Defs.' Mot." ); Mem. in Supp. of Defs.' Mot. [Dkt. # 22] (" Defs.' Mem." ). The same day, the intervenor-defendants -- private landowners with land near the Devil's Garden WHT and users of public land resources within the Modoc National Forest -- filed their cross-motion for summary judgment. Intervenor-Defs.'

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Mot. for Summ. J. (" Intervenor-Defs.' Mot." ) [Dkt. # 24]; Mem. in Supp. of Intervenor-Defs.' Mot. & in Opp. to Pls.' Mot. (" Intervenor-Defs.' Mem." ) [Dkt. # 24-1]. All motions have been fully briefed.

         STANDARD OF REVIEW

         Summary judgment is appropriate when the pleadings and evidence show that " there is no genuine dispute as to any material fact and [that] the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). However, in cases involving review of agency action under the APA, Rule 56 " does not apply because of the limited role of a court in reviewing the administrative record." Select Specialty Hosp.-Akron, LLC v. Sebelius, 820 F.Supp.2d 13, 21 (D.D.C. 2011).

         Under the APA, a court must " hold unlawful and set aside agency action, findings, and conclusions" that are " arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," in excess of statutory authority, or " without observance of procedure required by law." 5 U.S.C. § 706(2). However, the scope of review is narrow. See Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). The review is " [h]ighly deferential" and it " presumes the validity of agency action." AT& T Corp. v. FCC, 220 F.3d 607, 616, 343 U.S.App.D.C. 23 (D.C. Cir. 2000). A court must not " substitute its judgment for that of the agency." State Farm, 463 U.S. at 43. Thus, the action will be upheld if the agency " has considered the relevant factors and articulated a rational connection between the facts found and the choice made." Nat'l Ass'n of Clean Air Agencies v. EPA, 489 F.3d 1221, 1228, 376 U.S.App.D.C. 385 (D.C. Cir. 2007), quoting Allied Local & Reg'l Mfrs. Caucus v. EPA, 215 F.3d 61, 68, 342 U.S.App.D.C. 61 (D.C. Cir. 2000). Agency action will be overturned only if:

the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

State Farm, 463 U.S. at 43.

         In reaching its decision, the agency may rely on comments submitted during the notice and comment period as justification for the action, so long as they are examined critically. See Nat'l Ass'n of Regulatory Util. Comm'rs v. FCC, 737 F.2d 1095, 1124, 237 U.S.App.D.C. 390 (D.C. Cir. 1984). It " need not -- indeed cannot -- base its every action upon empirical data; depending upon the nature of the problem, an agency may be 'entitled to conduct . . . a general analysis based on informed conjecture.'" Chamber of Commerce of U.S. v. SEC, 412 F.3d 133, 142, 366 U.S.App.D.C. 351 (D.C. Cir. 2005), quoting Melcher v. FCC, 134 F.3d 1143, 1158, 328 U.S.App.D.C. 319 (D.C. Cir. 1998).

         ANALYSIS

         I. The Forest Service's decision to correct the boundaries of the Devil's Garden WHT was not arbitrary and capricious or in violation of the Wild Horses Act, the NFMA, or NEPA.

         In Count I, plaintiffs contend that when the Forest Service corrected the boundaries of the Devil's Garden WHT in the 2013 Management Plan, it disregarded the requirement in the Wild Horses Act that it protect and manage wild horses within the disputed territory. Compl. ¶ ¶ 58-63. In Count II, plaintiffs claim that the Forest Service violated the National Forest Management Act because it ignored a mandate in the 1991 Forest Plan that the Devil's

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Garden WHT consist of one single, contiguous wild horse territory. Id. ¶ ¶ 64-68. And in Count III, plaintiffs allege that the Forest Service failed to analyze the environmental impact of eliminating the disputed territory in developing the 2013 EA and the FONSI, in violation of the National Environmental Policy Act. Id. ¶ ¶ 69-74. They argue that the Forest Service's failure to comply with these statutes renders the 2013 decision to clarify the boundaries of the Devil's Garden WHT invalid under the APA.

         But all of these counts presuppose that the disputed territory was in fact incorporated into the Devil's Garden WHT at some point during the 1980s, or in the 1991 Forest Plan. This premise fails for two reasons, and in sections I.A.1 and I.A.2 below, the Court will take up this defect that is fatal to each of plaintiffs' three claims, before addressing the specific statutory claims individually in sections I.B, I.C, and I.D.

         First, as will be set out in more detail in section I.A.1, plaintiffs can point to nothing in the Administrative Record showing that an actual incorporation ever took place. No formal process was invoked, and there is no record of any official decision. To the extent that the 1980 Map or the 1991 Forest Plan did refer to a single, contiguous WHT that incorporated the disputed territory, there is nothing in the record that casts doubt on defendants' explanation that this was the result of an " administrative error" and that it did not affect the actual management of the Devil's Garden WHT.

         Second, as discussed in section I.A.2, it would not have been legally proper or possible to subsume the disputed central parcel into the Devil's Garden WHT and create a unified whole, because a significant portion of the disputed territory was, and remains, privately owned, and the Forest Service determined that it was not the territorial habitat of wild horses at the time the Wild Horses Act was passed. So the land could not lawfully have been deemed to be a part of the wild horse territory under the applicable statutes.

         For these reasons, the Court finds that it was not arbitrary and capricious for the Forest Service to address the administrative error in the 2013 EA and Management Plan, and it finds that the boundary correction was not contrary to any of the three statutes or the APA. In other words, in the absence of any indication that the creation of a map that failed to exclude the parcel in the 1980s, or the use of those boundaries in a forest plan in the 1990s, was the product of a deliberate decision to expand and unify the territory, it was reasonable for the agency entrusted with these matters to conclude that a mistake had been made that needed to be rectified. Therefore, defendant's cross-motion for summary judgment on Counts I, II, and III will be granted.

         A. The Forest Service reasonably concluded that the disputed territory was never formally incorporated into the Devil's Garden WHT and that any reference to a single, contiguous territory was the result of an administrative error.

         Plaintiffs concede that the disputed territory was not part of the Devil's Garden WHT when it was first created in 1975. Compl. ¶ 39; Pls.' Mem. at 5; see also AR00157. However, they claim that " [t]he Forest Service acted quickly to incorporate the [disputed territory] into the WHT," and that " [a]t some point in the early 1980s, the Forest ...


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