United States District Court, District of Columbia
CHRISTOPHER R. COOPER, United States District Judge
Bureau of Land Management (“BLM”) is entrusted
with managing the population of wild horses that roam public
rangeland in the western United States. To fulfill this
statutory responsibility, BLM must periodically remove horses
from the range. One such removal operation-also known as a
“gather”-is scheduled to begin tomorrow, February
8, 2017, in Utah's Cedar Mountains. The operation has
been challenged, however, by the animal welfare organization,
Friends of Animals. The organization seeks a preliminary
injunction halting the gather on the grounds that BLM has not
adequately considered the environmental consequences of the
operation and has not properly determined that an
overpopulation of horses exists. Having considered the
parties' arguments and evidentiary submissions on an
expedited basis, the Court finds that Friends of Animals has
not demonstrated that its challenges are likely to succeed,
that it would suffer irreparable harm as a result of the
gather, or that the balance of the equities and the public
interest weigh in its favor. The Court will, accordingly,
deny Plaintiff's preliminary injunction motion.
National Environmental Policy Act (“NEPA”), 42
U.S.C. § 4321 (2012), et seq., “requires
federal agencies to consider the environmental impact of any
major federal action.” Baltimore Gas & Elec.
Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 89
(1983). Generally, when such an action is contemplated, the
agency must prepare an Environmental Assessment
(“EA”) to determine if the action's expected
effects are “significant.” See 40 C.F.R.
§ 1501.4. If they are, then the proposed action calls
for a more thorough Environmental Impact Statement
(“EIS”). See 42 U.S.C. § 4332(C);
40 C.F.R. § 1508.11. If the likely effects are not
considered significant, then the agency must make a Finding
of No Significant Impact (“FONSI”) before
carrying out the action. See 40 C.F.R. §
recognizes that proposed horse gathers are subject to NEPA.
See BLM, Removal Manual, 4720.3 (2010). However, the
Bureau has also determined that sometimes a proposed gather
is so similar to a previous one that no new NEPA
analysis is warranted. Accordingly, BLM has instructed its
officials to “use existing environmental analyses to
analyze effects associated with a proposed action . . . when
doing so would build on work that has already been done [and
would] avoid redundancy[.]” BLM, NEPA Handbook,
H-1790-1 at 21 (2008). In those circumstances, BLM officials
are to prepare a Determination of NEPA Adequacy
(“DNA”), confirming “that an action is
adequately analyzed in existing NEPA document(s)[.]”
Id. at 22. To issue a DNA, officials must complete
an accompanying “worksheet” by answering a list
of questions, such as: whether “the [relevant]
geographic and resource conditions are sufficiently similar
to those analyzed in the existing NEPA documents, ” and
whether “the existing analysis [is] valid in light of
any new information or circumstances[.]” Id.
at 23. If the answer to even one of these questions is
“no, ” then “a new EA or EIS must be
prepared.” Id. Otherwise, no further NEPA
analysis is necessary before carrying out the proposed
action. But because a DNA is “not [a] new NEPA
analys[is], ” the fate of any action justified by a DNA
“must rise or fall on the contents of the previously
issued NEPA documents.” S. Utah Wilderness All. v.
Norton, 457 F.Supp.2d 1253, 1264 (D. Utah 2006).
governing the challenged removal decision is the Wild
Free-Roaming Horses and Burros Act (“Wild Horses
Act”), 16 U.S.C. §§ 1331-40, which was
enacted in 1971 to protect wild horses on public lands
“from capture, branding, harassment, or death.”
Kleppe v. New Mexico, 426 U.S. 529, 531 (1976)
(quoting 16 U.S.C. § 1331). But because wild horses are
only one ingredient in the lands' ecological makeup,
Congress amended the Act in 1978 “to cut back on the
protection the Act affords wild horses, and to reemphasize
other uses of the natural resources wild horses
consume.” Am. Horse Prot. Ass'n v. Watt,
694 F.2d 1310, 1316 (D.C. Cir. 1982). In keeping with these
twin goals, the Act directs the Secretary of the Interior to
“maintain a current inventory of wild free-roaming
horses and burros” in designated herd management areas
(“HMAs”), and to define “appropriate
management [population] levels” (“AMLs”)
for those areas based on site-specific environmental
analysis. 16 U.S.C. § 1333(b)(1); see also BLM,
Wild Horses and Burros Management Handbook, H-4700-1 at 17-18
(2010) (explaining that the AML should be “expressed as
a population range, ” and should be based on an
“in-depth evaluation of intensive monitoring data or
land health assessment”). Furthermore, when the
Secretary determines that a herd management area is
overpopulated and that corrective action is necessary, the
statute provides that “he shall immediately remove
excess animals from the range . . . so as to restore a
thriving natural ecological balance to the range, and protect
the range from the deterioration associated with
overpopulation[.]” 16 U.S.C. § 1333(b)(2).
Cedar Mountains are nestled in Tooele County, Utah,
approximately 45 miles west of Salt Lake City. Pl.'s Mot.
Prelim. Inj. (“MPI”), Ex. E (“2003 Decision
and EA”) at 5. Early settlers and cavalry introduced wild
horses to the region as early as the late 1800s. Id.
at 17. With few natural predators and ample vegetation, the
wild horse population has flourished since then. Unchecked,
the population is capable of doubling every three years.
Id. at 5. Pursuant to the Wild Horses Act, the Cedar
Mountain Herd Management Area was established in 1971 to
protect the herd of wild horses that roamed within it.
Id. at 17. BLM's Salt Lake Field Office assumed
responsibility for the long-term management of the Cedar
Mountain HMA, which included setting an AML range for the
herd and conducting periodic censuses and removal operations
to prevent overpopulation. Id. The first such gather
and removal took place in 1975, and gathers have occurred at
fairly regular intervals since then. Id.
taking an aerial census and conducting an EA in 2003, BLM
expanded the HMA's boundaries and adjusted the AML from
85 to 273, with the aim of maintaining the wild horse
population between 190 and 390 depending on environmental
conditions. 2003 Decision and EA at 1-2, 5. The AML was
increased so that “[g]enetic defects, if present, would
be diluted by a reduction in inbreeding that may occur in
smaller populations.” Id. at 25. The 2003 EA
set the upper limit of the population range based on the
number of horses “the area would support in a thriving
ecological balance.” Id. The lower limit, by
contrast, was the number of horses “the area would
support under drought conditions . . . .” Id.
twice gathered and removed excess horses based on the AML
range established in 2003: In 2008, 573 wild horses were to
be gathered, 447 removed, and 126 released back into the HMA.
Pl.'s MPI, Ex. D (“2008 Decision and EA”) at
1. In 2012, 326 wild horses were to be gathered, 65 removed,
and 261 released. See Pl.'s MPI, Ex. C
(“2012 Decision and EA”) at 2. During the
gathers, breeding age mares were treated with the
contraceptive porcine zona pellucidae
(“PZP”)-which inhibits reproduction for two to
three breeding seasons-prior to being released. Id.
BLM conducted a supporting EA for both gathers and ultimately
concluded that neither would cause a significant
environmental impact. See 2008 Decision and EA; 2012
Decision and EA.
March 2016, BLM again surveyed the herd, estimating that it
had grown to approximately 800 horses. Pl.'s MPI, Ex. F
(“2016 Draft DNA”) at 5. The Bureau proposed an
action to remove the excess population by rounding up 600
horses from the HMA, removing 200, and releasing 400 after
first treating an estimated 200 mares with PZP. Id.
at 2. In a draft DNA, BLM found that the prior 2008 and 2012
EAs covered the proposed gather because “[they]
analyze[d] the same analysis area as the proposed action
[and] [t]here have been no changes to the HMA boundary, HMA
AML or use of [PZP] since the preparation of the previous
EAs.” Id. at 4. BLM determined that the
potential alternatives to the proposed action were the same
as those presented and rejected in previous EAs. Id.
(“There are no unique circumstances, concerns,
interests or resource values that would suggest a need for
other action alternatives.”).
draft DNA also specifically incorporated by reference the
environmental effects identified and analyzed by the 2012 EA.
Id. at 6.
Bureau presented the draft DNA to the public for a 30-day
comment period, and received eight comments-widely ranging in
their degree of support-from state and local governments,
individuals, and organizations, including Plaintiff.
Pl.'s MPI, Ex. B (“2016 DNA”) at 10.
Utah's Public Lands Policy Coordinating Office, for
example, urged BLM to expand the removal of excess horses
“to avoid degradation of public rangelands” and
questioned the effectiveness of PZP as a contraceptive.
Id. at 51. Plaintiff voiced different concerns: It
criticized BLM for failing to conduct a new analysis of
environmental effects, review recent studies on PZP
treatment, and consider the potential impact of the gather on
golden eagles nesting in the gather area. Id. at
58-65. BLM responded to the comments, revising the DNA to
address any potential impacts on golden eagle activity and
proposing a slightly larger gather and removal of horses, as
far as the budget allowed. See id. at 51-65
(BLM's responses to the comments). In December 2016, BLM
issued the final DNA, accompanied by an appealable Decision
Record, which authorized gathering 600-700 horses, removing
200-300 horses, and treating with PZP any mare above a year
old in the group of 400 horses (i.e., roughly 200 horses)
that would be returned to the HMA. Pl.'s MPI, Ex. A
(“2016 Decision Record”) at 2.
January 20, 2017, six weeks after BLM issued its final
decision authorizing the gather, Friends of Animals filed
suit against BLM. A week later, it filed a Motion for a
Preliminary Injunction to halt the gather, which is scheduled
to begin on February 8, 2017. Alternatively, Plaintiff
requests that the Court delay the gather for 30 days while
deciding the present motion. The practical effect of a 30-day
delay, however, would be to push back the gather by at least
five months because BLM policy prohibits gathers during peak
foaling season, which spans from March to July. The Court
held a telephonic conference on January 30, 2017, in which it
discussed with the parties the possibility of postponing the
gather to allow for more thorough briefing and consideration
of the issues. Given the proximity to foaling season, BLM
declined to postpone the operation, and the Court set an
expedited briefing schedule. Neither party has requested a
Standard of Review
preliminary injunction is “an extraordinary remedy
never awarded as of right.” Winter v. Nat. Res.
Def. Council, 555 U.S. 7, 24 (2008). In order to obtain
a preliminary injunction to prevent BLM from conducting its
planned gather, Plaintiff must establish that it is
“likely to succeed on the merits, that [it is] likely
to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in [its] favor, and
that an injunction is in the public interest.”
Id. at 20. The D.C. Circuit has indicated that, even
after the Supreme Court's decision in Winter,
“[a] district court must balance the strength of a
plaintiff's arguments in each of the four elements when
deciding whether to grant a preliminary injunction.”
Mills v. District of Columbia, 571 F.3d 1304, 1308
(D.C. Cir. 2009). Nonetheless, “it is especially
important for the movant to demonstrate a likelihood of
success on the merits.” Nat'l Head Start
Ass'n v. U.S. Dep't of Health & Human
Servs., 297 F.Supp.2d 242, 246 (D.D.C. 2004) (citing
Davenport v. Int'l Bhd. of Teamsters, 166 F.3d
356, 360, 366 (D.C. Cir. 1999)).
Likelihood of ...