The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
Plaintiffs in this action, which consist of an animal rights group along with a wild horse and burro sanctuary and other concerned individuals, seek though this Motion to halt a planned "gather", or round-up, of wild horses and burros scheduled to commence on August 9, 2010 at the Twin Peaks Herd Management Area ("HMA").
Plaintiffs argue that the planned gather runs counter to the congressional mandate for preserving wild horses and burros as set forth in Wild Free-Roaming Horses and Burros Act, 16 U.S.C. § 1331, et seq. ("Act"). Plaintiffs also contend that the provisions of the National Environmental Policy Act ("NEPA") have been violated because the Environmental Assessment ("EA") for the gather fails to adequately analyze a reasonable range of alternatives, fails to ensure scientific integrity and dissenting opinion, and consequently fails to take the requisite "hard look" at the proposed action for NEPA purposes. Instead, according to Plaintiffs, because of the cumulative impacts occasioned by the gather and its unprecedented scope, at a minimum the Court should require that a comprehensive Environmental Impact Statement ("EIS") be prepared before the gather moves forward.
While Plaintiffs' Motion is styled as a request for both a temporary restraining order and a preliminary injunction, because the Motion has been fully briefed and since extensive oral argument was heard on the matter at the time of the August 5, 2010 hearing, the Court believes it is appropriate to consider the matter as a preliminary injunction and analyze the instant Motion under that standard.*fn1
At the close of the August 5, 2010 hearing, the Court denied Plaintiffs' request for injunctive relief from the bench. This Memorandum and Order, as promised following the hearing, reiterates that denial in further detail.
The Twin Peaks HMA comprises some 789,852 acres of public and private lands on either side of the border between California and Nevada. Approximately 55 miles long from north to south, and 35 miles wide, slightly more than half of the HMA is located within Lassen County, California. The remainder is in Washoe County, Nevada. The Bureau of Land Management ("BLM") designated the Twin Peaks HMA as suitable for the long-term maintenance of wild horses and burros in 1981. The Cal Neva Management Framework Plan established a multiple use balance between livestock, wild horses, and wildlife in 1982. The population of wild horses and burros within the HMA has increased sharply since the first aerial population inventory was conducted in 1973. At that time, 835 horses and 104 burros were recorded. By 1977, the population was estimated to be at approximately 3,000 horses. Because wild horses have few natural predators and are a long-lived species, and since documented foal survival rates exceed 95 percent, their population levels rise quickly. Even though nine gathers within the Twin Peaks HMA have taken place since 1998, the estimated horse population has nonetheless almost doubled since 2004. During the same period, burro numbers have risen from 74 to more than 280 animals.
A direct count aerial population inventory taken in September of 2008 revealed some 1,599 horses and 210 burros. At the time the EA at issue in these proceedings was prepared in 2010, the current population was estimated to be 2,303 horses and 282 burros, based on a 20 percent horse foal crop per year and a 16 percent burro foal yield. Since the EA was prepared, and in preparation for the anticipated gather of excess horses and burros to begin on August 9, the BLM conducted another aerial population inventory on July 26, 2010. That inventory yielded a count of 2,236 wild horses and 205 burros, numbers slightly less, but not appreciably lower, than the projected figures, particularly with respect to the horses.
The appropriate management level ("AML") for the Twin Peaks HMA has been established as a population range of between 448 and 758 wild horses and between 72 and 116 burros. The AMLs are designed to ensure a thriving natural ecological balance consistent with multiple use objectives for the HMA. The BLM strives to remove animals from the HMA population if numbers exceed the established AML range. Based on the above numbers, the EA estimated that there were some 1,855 horses in excess of the AML lower limit, and 210 excess wild burros. Compounding the situation, according to the BLM, is the fact that wild horses exceed the forage allocated to their use by 3 to 5 times, since they graze constantly throughout the year. Livestock, on the other hand, which are moved from place to place, average only some 59 percent for cattle and 32 percent for sheep of their allocated usage.
While range conditions (both water sources and vegetation) still remain acceptable, the BLM believes that decreasing the numbers of horses and burros is essential to avoid unduly depleting available resources in the long run, especially since their numbers increase so rapidly if left unchecked.
In order to trim current horse and burro populations to appropriate levels, the BLM has proposed that an attempt be made to gather the entire population of horses and burros within the HMA. Since previous gathers have typically rounded up only 80 to 90 percent of the animals, depending on the numbers actually retrieved, the EA estimates that about 180 horses will be released after the gather. The released horses would have a sex ration of 60:40 studs to mares in order to help curb future population increases, in addition, some or all of the released mares (depending on the capture rates) would receive fertility control treatments (an immunocontraceptive known as Porcine Zona Pellucida, or PZP) designed to reduce their fecundity over the following two-year period. The BLM's goal, consistent with the low range of the established ALMs, is to ultimately leave approximately 450 horses and 72 burros in the HMA.
The proposed gather, originally set to commence on August 9, 2010, is expected to take approximately 45 to 60 days to complete. A helicopter drive method of capture is envisioned, whereby low flying helicopters steer the animals into capture sites, where they will be kept for up to one hour before being transported to temporary holding facilities. Some roping from horseback is also expected.
According to the EA, the gather would proceed at a slow pace, with animals moving at either a walk or slow trot.*fn2 Depending on temperature conditions, if heat stress is deemed to be a risk factor, gather operations would be conducted during the cooler parts of the day. Electrolytes would be added to the drinking water in holding areas in order to combat dehydration, and the horses would be provided "good quality" hay.
Once gathered, the horses would be segregated so that any removed animals would be younger, and hence more adoptable in the long run. Sick or disabled horses would be euthanized, and horses selected for release back on the range would be evaluated for sex and other desired herd characteristics like body condition class, color, size and disposition.
Ultimately, the excess animals will be transferred to BLM-managed holding facilities in the Midwest, from which adoption may occur. By all indications, those storage facilities are spacious with ample room for the animals. They are located on private land.
Plaintiffs object to the proposed gather as both inhumane and in direct contravention of the Act. They claim that the EA does not properly identify and categorize excess animals prior to capture, and further allege that herding horses and burros during the summer August heat imposes an unacceptable strain on the animals.
They further contend that the BLM has not adequately shown that HMA resources are being overtaxed by the current population of horses to the extent that there are indeed excess animals. In addition, Plaintiffs allege that the EA does not properly analyze the combined effect of so many animals being gathered, along with the impact that widespread contraception will have on the animals and their social characteristics. By failing to adequately address those issues, Plaintiffs claim that the EA runs afoul of APA's mandate that a "hard look" be taken prior to any significant environmental action. Absent that hard look, and given the claimed violations of the Act, Plaintiffs ask that the Court prevent the August 9, 2010 gather from proceeding.
The issuance of a preliminary injunctive relief is an extraordinary remedy, and Plaintiffs have the burden of proving the propriety of such a remedy by clear and convincing evidence. See Mazurek v. Armstrong, 520 U.S. 968, 972 (1997); Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423, 442 (1974). Following the Supreme Court's decision in Winter v. Natural Resources Defense Council, 129 S.Ct. 365 (2008), the party requesting such relief must show that "he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (quoting Winter, 129 S.Ct. at 374.
Alternatively, under the so-called sliding scale approach, as long as the Plaintiffs demonstrate the requisite likelihood of irreparable harm and show that an injunction is in the public interest, a preliminary injunction can still issue so long as serious questions going to the merits are raised and the balance of hardships tips sharply in Plaintiffs' favor. Alliance for Wild Rockies v. Cottrell, 2010 WL 2926463 at *4-7 (9th Cir. July 28, 2010) (finding that sliding scale test for issuance of preliminary injunctive relief remains viable after Winter).
A. Likelihood of Success on ...