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American Wild Horse Preservation Campaign v. Zinke

United States District Court, D. Idaho

September 29, 2017

RYAN ZINKE, et al., Defendants.


          Honorable Edward J. Lodge


         Pending 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.


         Plaintiffs[1] have brought this action against the Defendants[2] 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.

         Plaintiffs' 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.


         1. National Environmental Policy Act

         Under 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).

         NEPA 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 substantive result.).

         In 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)).

         2. Wild Free-Roaming Horses and Burros Act

         Enacted 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 preservation”).

         BLM 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 imbalance.” Id.

         When 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. § 1333(b)(1).

         In 1978 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).

         3. Federal Land Policy and Management Act

         FLPMA's 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).


         Judicial 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)).

         There 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.

         An agency's factual decision will be deemed arbitrary and capricious:

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.

         The 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.

         An 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.

         The 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, decision.” Id.

         When a 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).


         1. Jarbidge Resource Management Plan and the Saylor Creek Wild Horse Herd

         The 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.

         In 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.)

         The 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.

         The 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.)

         2. Ripeness

         As a 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.)

         “Determining 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.

         In this 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.

         Judicial 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 ...

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