United States District Court, D. Columbia
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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.
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,
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.
BERMAN JACKSON, United States District Judge.
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.
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.
first set of challenges to the Forest Service's actions
are premised upon
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.
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.
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. ¶
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.
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.
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.
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).
History of the Devil's Garden WHT
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. 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."
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
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" ).
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
1991, the Forest Service revised the forest plan for Modoc
National Forest. AR02838 (the " 1991 Forest Plan"
). 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,"  which had " identifie[d] a
population objective of 275-335 animals to manage."
Id. at 3-18 to 3-19.
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.
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
the draft EA, and prepare the notice of decision and any
finding of no significant impact. AR04714.
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."
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.
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).
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.
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
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.
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" ).
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.
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. ¶
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.'
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
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).
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.
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).
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,
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
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.
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.
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.
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.
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.
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
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 ...