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Friends of Animals v. Haugrud

United States District Court, District of Columbia

February 21, 2017

KEVIN HAUGRUD, Acting Secretary of the Interior, et al.[1] Defendants.


          CHRISTOPHER R. COOPER United States District Judge.

         The Bureau of Land Management (“BLM”) is authorized to remove wild horses from public rangeland when it makes a determination that there is an overpopulation. Plaintiff Friends of Animals, a non-profit animal advocacy organization, challenges a July 2015 BLM decision authorizing the removal of all excess wild horses in Colorado's West Douglas Herd Area (“WDHA”), “beginning September 14, 2015 with 167 [horses].” A.R. 7964-70 (Decision Record for the 2015 WDHA Wild Horse Gather and Removal) (“WDHA Decision Record”). That initial 167-horse “gather” occurred nearly a year-and-a-half ago, but Plaintiff points to language in the decision appearing to authorize future WDHA gathers in contending that its challenge is not moot. Before conducting any further gathers, however, BLM will necessarily conduct at least some level of environmental analysis, issue public notice of the impending gather, and permit challenges to the decision administratively or in court, in accordance with its own agency guidance. This means Plaintiff will have an opportunity at a later date to bring its challenge when the issues are better fit for judicial consideration. In short, because Plaintiff's challenge to the completed WDHA gather is moot, and its challenge to future WDHA gathers is not yet ripe, the Court will dismiss this case for lack of jurisdiction.

         I. Background

         A. Statutory Background

         BLM is entrusted with managing the population of wild horses that roam public rangeland in the western United States. Wild Free-Roaming Horses and Burros Act, 16 U.S.C. §§ 1331-40. The Act provides that, when the Secretary determines that a designated herd management area is overpopulated and corrective action is necessary, “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).

         Separately, 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). BLM recognizes that proposed horse gathers are subject to NEPA. See BLM, Removal Manual, 4720.3 (2010). Accordingly, when a gather is contemplated, the agency must examine, at least to some extent, the gather's expected environmental effects. That examination can take on numerous forms. When BLM is unable to identify any prior, relevant environmental analysis, it must prepare an Environmental Assessment (“EA”) to determine if the action's expected effects are “significant.” See 40 C.F.R. § 1501.4.[2] However, if the Bureau determines that a proposed gather is similar to a previous gather, BLM officials may prepare a Determination of NEPA Adequacy (“DNA”), confirming “that an action is adequately analyzed in existing NEPA document(s).” BLM, NEPA Handbook, H-1790-1 at 22 (2008). To issue a DNA, officials must complete an accompanying worksheet, answering a list of questions, such as: whether “the 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.

         BLM guidance further requires that, in addition to the above environmental analyses, certain notice and public comment procedures, as well as opportunities for administrative and judicial challenge, must accompany every planned gather. For instance, the public is afforded a 30-day period to review and comment on any EA or DNA issued for a particular gather plan. BLM, Removal Manual, 4720.35 (2010); see also A.R. 6331 (BLM Instruction Memorandum). And absent an emergency, “the authorized officer's [gather] decision shall be issued 31 to 76 days prior to the proposed gather start to provide an opportunity for administrative review of the decision.” BLM, Removal Manual, 4720.36; see also A.R. 6408 (BLM Wild Horses Handbook, H-4700-1 at 48). Any party adversely affected by that decision may then challenge it administratively or in court. See A.R. 6410 (BLM Wild Horses Handbook, H-4700-1 at 50); 43 C.F.R. §§ 4.21, 4.410 & 4770.3.

         B. Factual Background

         The Wild River Resource Area, a large swath of public land located in northwest Colorado, includes the WDHA and the Piceance-East Douglas Herd Management Area (“PEDHMA”). See A.R. 8092 (BLM Map of Current Area Boundaries).[3] Although the PEDHMA has been designated for wild horse management over the long term, with a current target population range of 135-235 horses, BLM has chosen not to maintain wild horses in the WDHA. See A.R. 8091. In February 2012, BLM conducted an aerial survey, and determined that there were a significant number of excess wild horses in both areas. A.R. 3713-19. In January 2015, BLM publicly proposed gathering 167 wild horses from the WDHA, and in April, BLM published a preliminary EA for that action. See A.R. 7981-82. A 30-day comment period followed, and over 10, 000 comments were received. A.R. 7982.

         After considering all comments, on July 28, 2015, BLM issued a final EA, a Finding of No New Significant Impact (“FONNSI”), and a Decision Record for the WDHA gather. A.R. 7964-70, 8195-99.[4] The Decision Record specifically authorized a removal “beginning September 14, 2015 with 167 animals, ” but also indicated that BLM “would begin utilizing bait and water trapping gather methods to gather and remove excess wild horses from the WDHA as soon as funding is allocated and space is available at short and long-term holding facilities.” A.R. 7964. The Decision Record further noted that BLM's Wild River Field Office “may also utilize helicopter gather methods in subsequent fiscal years to remove excess wild horses, [which] would likely be scheduled for a similar duration between July 1 and February 28.” A.R. 7964-65. However, later in its discussion, the Decision Record characterized the relevant decision as one “to implement a gather to remove excess wild horses from within and immediately adjacent to the WDHA on approximately September 14, 2015.” A.R. 7968.

         Friends of Animals challenges the WDHA Decision Record primarily on the grounds that BLM did not adequately evaluate or disclose relevant information regarding the gather's long-term impacts on the horses, making its Decision Record noncompliant with NEPA. See Pl.'s Mem. Supp. Mot. Summ. J. (“Pl.'s MSJ”) 10-15. BLM disputes that assertion on the merits, but it also argues that the claim is not ripe for adjudication. See Def.'s Mem. Supp. Cross-Mot. Summ. J. (“Def.'s Cross-MSJ”) 14-16. In particular, BLM maintains that any future gather would be subject to additional notice, comment, analysis, and judicial review procedures, meaning that Plaintiff would suffer no harm, and that the Court would benefit from a sharper, fuller development of the issues. See id.; Def.'s Reply Supp. Cross-MSJ (“Def.'s Reply”) 3-8.

         II. Legal Standard

         This Court cannot reach the merits of a claim unless it is “constitutionally and prudentially ripe.” Wyoming Outdoor Council v. U.S. Forest Service, 165 F.3d 43, 48 (D.C. Cir. 1999) (quoting Louisiana Envtl. Action Network v. Browner, 87 F.3d 1379, 1381 (D.C. Cir. 1996)). As for the constitutional component, just as “Article III jurisdiction bars disputes not involving injury-in-fact, the ripeness requirement excludes cases not involving present injury.” Wyoming Outdoor Council, 165 F.3d at 48.[5] As a prudential matter, determining ripeness “requir[es] [a court] to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967). In Ohio Forestry Ass'n, Inc. v. Sierra Club, 523 U.S. 726 (1998), the Supreme Court articulated a three-factor framework for evaluating whether claims are prudentially ripe: Courts are to consider “(1) whether delayed review would cause hardship to the plaintiffs; (2) whether judicial intervention would inappropriately interfere with further administrative action; and (3) whether the courts would benefit from further factual development of the issues presented.” Id. at 733.

         III. ...

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