United States District Court, D. Idaho
Honorable Edward J. Lodge
before the Court in the above-entitled matter are the
Cross-Motions for Summary Judgment filed by the parties in
this case. The Motions are fully briefed and ripe for the
Court's consideration. The Court finds that the facts and
legal arguments are adequately presented in the briefs and
record. In the interest of avoiding further delay, and
because the decisional process would not be significantly
aided by oral argument, the Motions are decided on the record
without a hearing. For the reasons stated below, the Court
grants in part the parties' Motions for Summary Judgment.
AND PROCEDURAL BACKGROUND
Plaintiffs have brought this action
against the Defendants challenging the Bureau of Land
Management's (BLM) August 22, 2014 Final Environmental
Impact Statement (FEIS) and September 2, 2015 Record of
Decision (ROD) revising the Jarbidge Resource Management Plan
(JRMP), consistent with the Federal Land Policy and
Management Act (FLPMA). (Dkt. 1.) Specifically, Plaintiffs
oppose the BLM's decision adopting Alternative VI which
proposes that the Saylor Creek wild horse herd be managed as
a non-reproducing herd.
claims are brought under the Administrative Procedure Act
(APA), 5 U.S.C. § 701 et seq., alleging
violations of the National Environmental Policy Act (NEPA),
42 U.S.C. § 4321 et seq., and the Wild
Free-Roaming Horses and Burros Act (WHA), 16 U.S.C. §
1331-1340. (Dkt. 1.) On the first claim, Plaintiffs allege
the BLM violated NEPA by failing to take a hard look at and
consider the significant impacts of its decision, a relevant
scientific report, and a viable alternative. (Dkt. 1 at
¶¶ 74-84.) Plaintiffs further allege the BLM failed
to properly respond to public comments thereby failing to
engage in informed decision making and provide for meaningful
public input as required by NEPA. Plaintiffs' next claim
alleges the BLM violated the WHA and the APA by failing to
consider how its decision conflicts with its duties under the
WHA. (Dkt. 1 at ¶¶ 85-88.) Defendants counter that
the BLM's decision was in accord and fully complied with
the applicable standards and requirements of these statutes.
(Dkt. 10, 26, 30.) The parties filed Cross-Motions for
Summary Judgment. (Dkt. 20, 26.) The Court finds as follows.
National Environmental Policy Act
NEPA, federal agencies are required to “assess the
environmental consequences of their actions before those
actions are undertaken.” Klamath-Siskiyou Wildlands
Ctr. v. United States Bureau of Land Mgmt., 387 F.3d
989, 993 (9th Cir. 2004). NEPA serves two fundamental
purposes: (1) to require agency consideration of detailed
information concerning significant environmental impacts of a
proposed action and (2) to inform the public that the agency
has considered the environmental concerns in its
decisionmaking process while ensuring that the public can
both access and contribute to that body of information via
comments. San Luis Obispo Mothers for Peace v. Nuclear
Regulatory Comm'n, 449 F.3d 1016, 1034 (9th Cir.
2006) (citation omitted).
imposes procedural rather than substantive requirements to
ensure the agency took a “hard look” at how its
decision will affect the environment by considering the
relevant evidence and information before it and then placing
its decision, its explanation for reaching its decision, and
the basis for its decision before the public. Oregon Nat.
Desert Assn. v. United States Bureau of Land Mgmt., 625
F.3d 1092, 1099-1100 (9th Cir. 2010); see also Winter v.
Natural Res. Def. Council, Inc., 555 U.S. 7, 23 (2008).
Taking a “hard look” requires the agency to
consider “all foreseeable direct and indirect
impacts” as well as discuss “adverse impacts that
do not improperly minimize negative side effects.”
N. Alaska Envtl. Ctr. v. Kempthorne, 457 F.3d 969,
975 (9th Cir. 2006) (internal quotation marks and citations
omitted); see also Or. Natural Res. Council Fund v.
Brong, 492 F.3d 1120, 1133 (9th Cir. 2007)
(“[G]eneral statements about possible effects and some
risk do not constitute a hard look absent a justification
regarding why more definitive information could not be
provided.”) (internal quotation marks omitted). As
such, NEPA “does not mandate particular results, but
simply describes the necessary process” that an agency
must follow in issuing an EIS. Kettle Range Conservation
Grp. v. United States Forest Serv., 148 F.Supp.2d 1107,
1116 (E.D. Wash. 2001) (citing Robertson v. Methow Valley
Citizens Council, 490 U.S. 332, 349 (1989)); Kern v.
United States Bureau of Land Mgmt., 284 F.3d 1062
1070-71 (9th Cir. 2002) (NEPA “‘simply guarantees
a particular procedure, '” rather than a
reviewing an EIS, courts apply a rule of reason standard to
“determine whether the EIS contains a reasonably
through discussion of the significant aspects of the probable
environmental consequences.” League of Wilderness
Defenders-Blue Mnts. Biodiversity Proj. v. United States
Forest Serv., 689 F.3d 1060, 1076 (9th Cir. 2012)
(citation omitted). “This standard ‘requires a
pragmatic judgment whether the EIS's form, content[, ]
and preparation foster both informed decision-making and
informed public participation.'” Id.
(quoting Native Ecosystems Council v. United States
Forest Serv., 418 F.3d 953, 960 (9th Cir. 2005)). The
Court's role under NEPA is not to determine whether the
BLM's decision is correct but is, instead, to simply
ensure that the agency undertook the requisite “hard
look” at the relevant evidence in making its decision
and disclosed the basis for its decision and environmental
impact of its actions to the public. Assn. of Pub. Agency
Customers, Inc. v. Bonneville Power Admin., 126 F.3d
1158, 1183 (9th Cir. 1997); Oregon Nat. Resources Council
v. Lowe, 109 F.3d 521, 527 (9th Cir. 1997)).
Wild Free-Roaming Horses and Burros Act
in 1971, the Wild Free-Roaming Horses and Burros Act (WHA)
mandates that wild horses, as “living symbols of the
historic and pioneer spirit of the West, ” are
“protected from capture, branding, harassment or death,
” and as such are considered an “integral
part” of public lands in areas where they were
presently found. 16 U.S.C. § 1331; see also Kleppe
v. New Mexico, 426 U.S. 529, 535-36 (1976) (citing
legislative history). The statute requires the Secretary of
the Interior, through the BLM as its delegate, to
“manage wild freeroaming horses and burros in a manner
that is designed to achieve and maintain a thriving natural
ecological balance on the public lands.” Fund for
Animals v. United States Bureau of Land Mgmt., 460 F.3d
13, 15 (D.C. Cir. 2006) (quoting 16 U.S.C. § 1333(a)).
The BLM uses localized “herd management areas”
(HMAs) established in accordance with broader land use plans,
to manage wild horse herds. 16 U.S.C. § 1332(c); 43
C.F.R. § 4710.3-1; see also 16 U.S.C. §
1332(a) (the BLM maintains “specific ranges on public
lands as sanctuaries for their protection and
must maintain a current inventory of wild horses so that it
can “make determinations as to whether and where an
overpopulation exists and whether action should be taken to
remove excess animals; [and] determine appropriate management
levels [(AML)] of wild free-roaming horses [ ] on these areas
of public lands….” 16 U.S.C. § 1333(b)(1).
The BLM determines an AML for each HMA, based upon the number
of adult wild horses or burros consistent with
“achieving and maintaining a thriving ecological
balance and multiple-use relationship in a particular herd
area.” Fund for Animals, 460 F.3d at 15. The
BLM defines the AML as “the number of wild horses that
can be sustained within a designated HMA which achieves and
maintains a thriving natural ecological balance in keeping
with the multiple-use management concept for the area.”
In Def. of Animals v. United States Dept. of
Interior, 751 F.3d 1054, 1072 (9th Cir. 2014). The Ninth
Circuit describes the AML as “a vehicle used [by the
BLM] to move towards a thriving natural ecological balance by
which the BLM is alerted to address population
the BLM determines “that an overpopulation exists on a
given area of the public lands and that action is necessary
to remove excess animals, ” the WHA requires the BLM to
“immediately remove excess animals from the range so as
to achieve the [AML].” 16 U.S.C. § 1333(b)(2). The
term “excess animals” is defined as “wild
free-roaming horses or burros (1) which have been removed
from an area by the Secretary pursuant to applicable law or,
(2) which must be removed from an area in order to preserve
and maintain a thriving natural ecological balance and
multiple-use relationship in that area.” Id.
§ 1332(f). Before taking such action, the BLM prepares a
detailed “gather” plan and prepares an
appropriate NEPA document. Fund for Animals, 460
F.3d at 16. The BLM must “determine whether [AMLs]
should be achieved by removal or destruction of excess
animals, or other options (such as sterilization or natural
controls on population levels).” 16 U.S.C. §
the WHA was amended to provide the BLM with greater authority
and discretion to manage and remove excess horses from the
rangeland so that BLM could “maintain a current
inventory of the animals.” 16 U.S.C. § 1333(b);
American Horse Prot. Assn. v. Watt, 694 F.2d 1310,
1316-18 (D.C. Cir. 1982). The WHA gives the Secretary of
Interior, and thus the BLM, a high degree of discretionary
authority in managing wild horses on public lands.
American Horse Protection Assn. v. Frizzell, 403
F.Supp. 1206, 1217 (D. Nev. 1975). That discretion, however,
has limits. For example, the BLM may not choose inhumane
management options, and must “protect and manage wild
free-roaming horses and burros as components of the public
lands.” 16 U.S.C. § 1333(a) and (b)(2)(A), (C).
Federal Land Policy and Management Act
purpose is to manage public lands for “multiple use, [
] with an increased emphasis on the management of the public
lands ‘in a manner that will protect the quality of
scientific, scenic, historical, ecological, environmental,
air and atmospheric, water resource, and archeological
values.'” W. Watersheds Project v.
Kraayenbrink, 632 F.3d 472, 478 (9th Cir. 2011) (citing
43 U.S.C. § 1701(a)(8)). FLPMA also provides that the
“public lands be managed in a manner that...will
provide food and habitat for fish and wildlife and domestic
animals; and that will provide for outdoor recreation and
human occupancy and use.” 43 U.S.C. § 1701(a)(8).
review of administrative agency decisions is made under the
APA. 5 U.S.C. § 702. Such review is based on the
administrative record compiled by the agency - not on
independent fact-finding by the district court. Camp v.
Pitts, 411 U.S. 138, 142 (1973). APA claims may be
resolved via summary judgment pursuant to the standard set
forth in Rule 56. See Nw. Motorcycle Assn. v. United
States Dept. Agric., 18 F.3d 1468, 1472 (9th Cir. 1994).
Summary judgment is appropriate where “there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” See
Fed. R. Civ. P. 56(a). The APA requires that the agency
action be upheld unless it is “arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with
law.” League of Wilderness Defs. Blue Mnts.
Biodiversity Proj. v. Allen, 615 F.3d 1122, 1130 (9th
Cir. 2010) (quoting 5 U.S.C. § 706(2)(A)).
are two standards governing review of agency actions under
the APA. See Price Rd. Neighborhood Assn., Inc. v. United
States Dept. of Transp., 113 F.3d 1505, 1508 (9th Cir.
1997); Alaska Wilderness Rec. & Tour. v.
Morrison, 67 F.3d 723 (9th Cir. 1995). Factual disputes
implicating substantial agency expertise are reviewed under
the arbitrary and capricious standard and legal issues are
reviewed under the reasonableness standard. Idaho
Sporting Congress, Inc. v. Rittenhouse, 305 F.3d 957,
964 (9th Cir. 2002) (citations omitted). These standards
reflect the axiomatic distinction between “the strong
level of deference we accord an agency in deciding factual or
technical matters [and] that to be accorded in disputes
involving predominantly legal questions.” Price
Rd., 113 F.3d at 1508.). Both standards may be applied
in the same case to different issues.
agency's factual decision will be deemed arbitrary and
only if the agency relied on factors Congress did not intend
it to consider, entirely failed to consider an important
aspect of the problem, or offered an explanation 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.
Wildland CPR, Inc. v. United States Forest Serv.,
872 F.Supp.2d 1064, 1074-75 (D. Mont. 2012) (quoting
Gardner v. United States Bureau of Land Mgmt., 638
F.3d 1217, 1224 (9th Cir. 2011) (quoting Lands Council v.
McNair, 537 F.3d 981, 987 (9th Cir. 2008)). That is to
say, when an agency reaches a decision based on its expert
review of the facts, a reviewing court should determine only
whether the decision was “arbitrary or
capricious.” Price Rd., 113 F.3d at 1508.
scope of review under the arbitrary and capricious standard
is narrow and courts do not substitute their judgment for
that of the agency. MotorVehicle Mfrs. Assn. v. State
Farm Mutual Auto. Ins. Co., 463 U.S. 29, 43 (1983);
Western Watersheds Proj. v. United States Bureau of Land
Mgmt., 181 F.Supp.3d 673, 677 (D. Ariz. 2016) (citation
omitted). The arbitrary and capricious standard is
“highly deferential, presuming the agency action to be
valid and [requires] affirming the agency action if a
reasonable basis exists for its decision.” Indep.
Acceptance Co. v. California, 204 F.3d 1247, 1251 (9th
Cir. 2000) (quotations and citations omitted). When applying
this standard, courts grant substantial deference to the
decisions and actions of federal agency defendants in
adopting and implementing certain agency activities. See
Trout Unlimited v. Lohn, 559 F.3d 946, 958 (9th Cir.
2009) (quoting Nat. Wildlife Fed'n v. United States
Army Corps of Eng'rs, 384 F.3d 1163, 1174 (9th Cir.
2004) (“Where scientific and technical expertise is
necessarily involved in agency decision-making, ... a
reviewing court must be highly deferential to the judgment of
the agency.”)). “Where the question presented for
review is a factual dispute which implicates ‘a high
level of technical expertise' we defer to ‘the
informed discretion of the responsible federal
agencies.'” Bahr v. United States Environ.
Prot. Agency, 836 F.3d 1218, 1229 (9th Cir. 2016)
(quoting Kleppe v. Sierra Club, 427 U.S. 390, 412
(1976)). The APA's “highly deferential
standard” of review “is highest when reviewing an
agency's technical analyses and judgments involving the
evaluation of complex scientific data within the agency's
technical expertise.” League of Wilderness
Defs., 615 F.3d at 1130.
agency has wide discretion to determine the best scientific
and commercial data available for its decision-making.
See Southwest Ctr. for Biological Diversity v. United
States Bureau of Rec., 143 F.3d 515, 523 n. 5 (9th Cir.
1998). What constitutes the “best” available
science implicates core agency judgment and a high level of
technical expertise to which courts must defer so long as
that determination was not arbitrary and capricious.
Marsh v. Or. Nat. Resources Council, 490 U.S. 360,
377 (1989) (citations and quotations omitted); Baltimore
Gas & Elec. Co. v. Nat'l Res. Defense Council,
462 U.S. 87, 103 (1983) (a court must be “at its most
deferential” when an agency is “making
predictions within its area of special expertise, at the
frontiers of science”). In this regard, the Court does
not substitute its judgment for that of the agency.
McNair, 537 F.3d at 987.
Court instead looks only to whether the agency's decision
must be based on a consideration of the relevant factors,
whether there has been a clear error in judgment, and whether
the agency examined the relevant data and articulated a
satisfactory explanation for its action including a
“rational connection between the facts found and the
choice made.” MotorVehicle, 463 U.S. at 43
(citation omitted); see also Marsh, 490 U.S. at 378;
Center for Biological Diversity v. Nat. Hwy. Traffic
Safety Admin., 538 F.3d 1172, 1193 (9th Cir. 2013);
City of Sausalito v. O'Neill, 386 F.3d 1186,
1206 (9th Cir. 2004). The court may not overturn an agency
decision simply because it disagrees with the decision or
with the agency's conclusions about environmental
impacts. River Runners for Wilderness v. Martin, 593
F.3d 1064, 1070 (9th Cir. 2010) (The “court may not
substitute its judgment for that of the agency concerning the
wisdom or prudence of the agency's action.”)
(citation omitted). Under the arbitrary and capricious
standard of review, an agency's decision “need only
be reasonable, not the best or most reasonable,
dispute is primarily legal in nature, or concerns a threshold
question of law, this Court applies the more lenient, but
less deferential, “reasonableness” standard.
San Luis Obispo Mothers for Peace, 449 F.3d at 1028
(reviewing predominately legal issue for reasonableness
because “it makes sense to distinguish the strong level
of deference we accord an agency in deciding factual or
technical matters from that to be accorded in disputes
involving predominately legal questions”); Ka
Makani‘O Kohala Ohana, Inc. v. Dept. of Water
Supply, 295 F.3d 955, 959 (9th Cir. 2002)
(“Because this case involved primarily legal
issues...based on undisputed historical facts, we conclude
that the ‘reasonableness' standard should apply to
this case.”)). The “reasonableness”
standard of review, applies only to those “rare”
cases in which the agency's decision raises legal, not
factual, questions. Kettle Range, 148 F.Supp.2d at
1116 (citation omitted). Under this standard, the Court will
uphold the agency's decision unless it is unreasonable.
Friends of the Earth v. Hintz, 800 F.3d 822, 836
(9th Cir. 1986).
Jarbidge Resource Management Plan and the Saylor Creek Wild
JRMP guides land and resource management decisions for the
public lands and resources managed by the BLM Twin Falls
District, Jarbidge Field Office in south-central Idaho and
northern Nevada. (AR024676) (AR027311.) Within the planning
area, the BLM owns and manages approximately 1, 371, 000
acres of public land surface and 1, 463, 000 acres of
livestock grazing. The Saylor Creek Wild Horse Herd
Management Area is a 102, 000 acre area (95, 000 acres of
which are BLM-managed) located in the northern portion of the
JRMP area. (AR025065.) The HMA was established pursuant to
the WHA. It contains portions of eight livestock grazing
allotments. (AR025252.) Wild horses have occupied the HMA
throughout the past 50 plus years since the 1960's.
(AR028990.) Over time, the wild horses in the HMA have lost
access to natural water at the Snake River due to human
presence associated with the development of private lands.
(AR025253.) As a result, the herd is totally dependent on a
developed pipeline water systems in the HMA. (AR028991.)
Maintenance of the pipeline is shared by permittees and the
BLM and is vital to the wild horses' survival.
2009, the Saylor Creek Herd had an estimated population of
168 with an average annual growth rate of 18% between 2006
and 2010. (AR025254.) In the summer of 2010, several wildland
fires forced the emergency gather of the herd, then totaling
194 wild horses. In September of 2011, 30 wild horses were
released back into the HMA. (AR025254.)
original JRMP was prepared in 1987 and was amended in 1990,
1998, and 2005. (AR024678) (AR027311.) The BLM has determined
the JRMP needs to be revised and updated in accordance with
FLPMA in order to address new issues and changes in
circumstances that have arisen since the original JRMP was
prepared. As a result, the BLM undertook the process of
preparing the revised JRMP and, in doing so, issued the FEIS
and ROD that are at issue in this case.
FEIS considered seven management alternatives and ultimately
selected Alternative VI as the preferred alternative.
(AR024710) (AR027939.) The ROD is the final decision
approving adoption of Alternative VI for the revised JRMP.
(AR027939, 027941-42.) Alternative VI proposes the Saylor
Creek Herd be managed as a non-reproducing herd with a
management level range of 50 to 200 wild horses and an
allocation of 2, 400 animal unit months of forage to maintain
the herd within the HMA. (AR025065-66.) Plaintiffs'
Complaint in this case challenges that decision arguing the
decision to “permanently sterilize” the entire
Saylor Creek Herd violates NEPA and the WHA. (Dkt. 1.)
preliminary matter, Defendants argue the Plaintiffs'
claims are premature because the JRMP is programmatic in that
it only sets management goals and direction, it does not
authorize any project or approve implementation of any
specific future federal action. (Dkt. 26 at 14-15.) Instead,
Defendants' argue, the Plaintiffs' arguments should
be raised when the BLM develops a specific HMA plan for the
Saylor Creek herd wherein it would decide which population
management tools to use and considers the impacts of each
along with any new scientific research. Plaintiffs maintain
their claims are ripe as they have raised a procedural
violation of NEPA contesting the BLM's reasoning and
decision to manage the herd as non-reproducing, arguing the
BLM violated NEPA's procedural requirements by failing to
analyze the impacts of its decision to sterilize the herd
regardless of the methods it may later chose to use when
implementing that decision. (Dkt. 27 at 2, 5.)
whether administrative action is ripe for judicial review
requires us to evaluate (1) the fitness of the issues for
judicial decision and (2) the hardship to the parties of
withholding court consideration.” See National Park
Hospitality Assn v. Dept. of Interior, 538 U.S. 803, 808
(2003) (citation omitted). In resolving ripeness challenges,
the Supreme Court considers “(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.” Ohio Forestry Assn., Inc. v. Sierra
Club, 523 U.S. 726, 733 (1998). Before the Supreme Court
in Ohio Forestry was a NFMA challenge to the Forest
Service's forest plan for the Wayne Nation Forest located
in southern Ohio. Id. There the Supreme Court
determined that although the forest plan set logging goals,
selected areas of the forest suitable for timber production,
and articulated likely methods of appropriate timber harvest,
it did not itself authorize the cutting of any trees and the
plaintiffs failed to argue the plan caused any injury.
Id. at 729. As such, the Supreme Court determined
the suit in that case was not yet ripe for court review.
case, Plaintiffs' claims allege the Defendants violated
NEPA's procedural requirements in deciding to adopt
Alternative VI for the revised JRMP. The Court finds the
claims raised here are ripe as they challenge whether the BLM
complied with NEPA's procedural demands. Specifically,
Plaintiffs are contesting the Defendants' decision to
manage the Saylor Creek herd as a fully non-reproducing herd.
(AR027894.) Delaying consideration of these claims would
cause prejudice and hardship to Plaintiffs in their ability
to ensure the BLM's decision to sterilize the entire
Saylor Creek Herd was done in accordance with NEPA. If not
allowed to bring their claims now, Plaintiffs will be
foreclosed from contesting the decision that the herd be
managed as entirely non-reproducing and left with only the
ability to challenge the methods to be used to implement that
decision, but not the decision itself.
review is proper at this stage in order to ensure compliance
with NEPA's procedural requirements. Further factual
development would not significantly advance the Court's
consideration or ability to deal with the legal issues before
it. Moreover, the procedural challenges raised in this case
are distinct from the substantive statutory violations
present in Ohio Forestry. See Kern, 284
F.3d at 1071. Here, Plaintiffs' claims go to whether ...