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Friends of Animals v. United States Bureau of Land Management

United States District Court, District of Columbia

February 7, 2017

FRIENDS OF ANIMALS, Plaintiff,
v.
THE UNITED STATES BUREAU OF LAND MANAGEMENT, Defendant

          MEMORANDUM OPINION

          CHRISTOPHER R. COOPER, United States District Judge

         The 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.

         I. Background

         A. Statutory Background

         The 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. § 1508.13.

         BLM 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).

         Also 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).

         B. Factual Background

         The 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.[1] 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.

         After 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. at 26.[2]

         BLM has 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.

         In 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.”).

         The draft DNA also specifically incorporated by reference the environmental effects identified and analyzed by the 2012 EA. Id. at 6.

         The 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.

         On 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 hearing.

         II. Standard of Review

         A 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)).

         III. Analysis

         A. Likelihood of ...


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