The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
Plaintiffs In Defense of Animals, Dreamcatcher Wild Horse and Burro Sanctuary, Barbara Clarke, Chad Hanson and Linda Hay ("Plaintiffs") bring suit pursuant to 16 U.S.C. § 1331 et seq. and 42 U.S.C. § 4321 et seq. (ECF. No. 1.)
Plaintiffs allege Defendants United States Department of the Interior, Bureau of Land Management, Ken Salazar, Robert Abbey, and Ken Collum ("Defendants") have violated provisions of the Wild and Free-Roaming Horses and Burros Act, National Environmental Policy Act, and Administrative Procedures Act. Plaintiffs are seeking injunctive and declaratory relief. Defendants have filed a Motion to Dismiss the Complaint for lack of standing and mootness pursuant to Federal Rule of Civil Procedure Rule 12(b)(1).*fn1 (ECF. No. 68.) For the reasons stated below, Defendants' Motion is DENIED as to all claims.*fn2
This action arises out of Defendants' roundup, gather and removal ("roundup") of wild horses and burros from the Twin Peaks Herd Management Area ("Twin Peaks HMA") in northeast California and northwest Nevada. The Twin Peaks HMA encompasses around 789,852 acres, and the United States Bureau of Land Management ("BLM") estimated that before the roundup, a total of approximately 2,300 wild horses and over 200 burros lived on the Twin Peaks range (Mot. to Dismiss at 6, 7.) ///
The roundup took place on September 19, 2010 and resulted in the gathering of 1,637 horses and 160 burros. (Sec. Decl. of Nancy Haug at ¶¶4-5.) After the roundup, 58 horses and one burro were returned to the range and the remainder were transferred to corrals where they will be either housed in short-term holding facilities where they will be available for adoption, or transferred to long-term pastures on private lands. (Id. at 7, 9, 10-11.)
1. Wild Free-Roaming Horses and Burros Act
The roundup occurred pursuant to the Wild Free-Roaming Horses and Burros Act, 16 U.S.C. § 1331 et seq. ("Wild Horses Act"), which directs the Secretary of the Interior to manage all wild free-roaming horses and burros on federal lands to maintain a thriving and natural ecological balance. 16 U.S.C. § 1331(a). Further, 16 U.S.C. § 1331(b) directs the Secretary to determine when an overpopulation exists, and to restore the appropriate management levels ("AML") by removal or destruction of the excess animals.
While the Secretary is granted significant discretion in maintaining the AML for each HMA, Congress has placed several restrictions on methodology that may be used. In making determinations of overpopulation, the Secretary must first consult several government agencies enumerated in the statute and others to be determined by the National Academy of Sciences.
Once an overpopulation has been determined, and action is to be taken, the Secretary is given specific procedures in 16 U.S.C. § 1333(b)(2)-(e) to follow in managing the animals. For example, the Secretary must use the most humane methods possible to destroy the old, sick, lame, or additional excess animals that cannot be adopted. 16 U.S.C. § 1333(b)(2)(A)-(C). All actions must be taken in the order and priority described in 16 U.S.C. § 1333(b)(2) until all excess animals are removed. Additionally, 16 U.S.C. § 1339 expressly states that it does not authorize the Secretary to relocate wild horses or burros to areas of public lands where they do not presently exist.
The underlying purpose of the Wild Horse Act is to protect wild horses and burros from capture, branding, harassment or death. 16 U.S.C. § 1331. The Code of Federal Regulations states that the Secretary is to manage wild horses and burros with the "goal of maintaining free-roaming behavior." 43 CFR 4700.0-6(c). Further, management of wild horses and burros shall be at the minimum level necessary to attain objectives and shall be "undertaken with the objective of limiting the animals' distribution to herd areas." 43 C.F.R. § 4710.4.
2. National Environmental Policy Act
The National Environmental Policy Act, 42 U.S.C. § 4321 et seq. ("NEPA") was enacted with the purpose of promoting efforts to prevent or eliminate damage to the environment, to "stimulate health and welfare of man," and to enrich the understanding of natural resources important to this nation.
NEPA is a recognition of the fact that nearly all federal activities impact the environment in some way and mandates that all government agencies consider the effects of their actions on the quality of the environment. The affected aspects of the environment to be considered includes ecological, aesthetic, historic, cultural, economic, social, and health. All direct, indirect or cumulative effects on the environment must be analyzed. 40 C.F.R. 1508.8
Before an agency takes any action, it must define the purpose and need of the proposed action, and look at various options for achieving that purpose and the effects of each option on the human environment. 42 U.S.C. § 4332. An agency must also consider comments and concerns raised by interested parties and make a justifiable and fully explained decision. Id. In essence, NEPA only requires that agencies make a justifiable and fully explained decision after a thorough investigation of any environmental impact.
To fulfill NEPA's purposes, an agency may prepare an Environmental Assessment ("EA") to determine whether its planned action will have a significant environmental impact. (Def.s'
Mot. to Dismiss at 5.) Where no significant environmental impact is found, the agency may issue a Finding of No Significant Impact. Where an environmental impact is anticipated from the results of the EA, NEPA will require the agency to prepare an Environmental Impact Statement ("EIS") before proceeding. Id.
Other factors besides anticipated environmental impact that trigger the need to prepare an EIS include actions that would set a precedent, cause unknown risks, implement a future program that has not yet been analyzed and controversial actions.
BLM routinely conducts population inventories of wild horses in the Twin Peaks HMA pursuant to the Wild Horse Act to determine whether action is needed to maintain the AML for wild horses and burros. (Def.s' Mot to Dismiss at 6.) In September, 2008, BLM conducted a population inventory and determined that Twin Peaks exceeded its ALM by approximately 1,800 wild horses and 200 burros. Id. On July 8, 2010, BLM issued an EA, a Finding of No Significant Impact, and Decision Record constituting its final decision to conduct a roundup of the wild horses and burros to bring the population back down to its AML. Id. As of the most recent evaluation in 2001, the AML range for the Twin Peaks HMA is 448-758 wild horses and 72-116 burros. Id. Having counted 2,236 wild horses and 205 burros as of July 26, 2010, BLM determined that, if left alone, the population ultimately would become unsustainable and crash leaving behind seriously degraded soil, vegetation, water sources, and wildlife habitat. Id. at 7. Given these statistics, BLM proceeded with its planned roundup under the authority of the Wild Horse Act.
The roundup at issue took place over the span of six days. (Decl. of Rachel Fazio, Ex. A at 2.) The roundup was effected by use of a helicopter, which, with both its physical presence and loud acoustics, would scare the wild horses and burros and drive them in the direction of the trap so that they could be gathered. Id. at 4. According to Plaintiffs, BLM captures and releases these animals indiscriminately and does not track demographics such as age and disability, or familial bands between the animals unless a foal is nursing. Id. at 6, 9. Once captured, approximately 180 horses were returned to the Twin Peaks to effect a ratio of 60:40 studs to mares. (Def.s' Mot. to Dismiss at 8.) The released mares received fertility control treatment, with the remaining "excess" horses either adopted or transferred to long-term pastures on private lands. Id. Defendants stated in their EA that they intended to leave 448 wild horses and 72 burros on the Twin Peaks HMA after the proposed action was completed. Id.
According to the October 2008 Government Accountability Office report on BLM, 1.2% of the horses removed from other HMAs across the United States were euthanized or died during the gather process. In a recent roundup conducted in another HMA, over 5% of the wild horses subjected to the roundup were killed in the process. In the Twin Peaks roundup at issue, fifteen animals were killed out of the 1,799 rounded up, two of which were euthanized, amounting to less than 1%.*fn4
Plaintiffs explain that once wild horses realize they have been trapped, they are known to attempt to jump the six-foot panels of the corrals to escape, or run head long into the barriers breaking their necks in the process. Others are severely injured and shot as a result. Plaintiffs further maintain that wild animals will suffer "capture myopathy," a negative reaction to confinement which has been known to cause death in wild horses. Plaintiffs allege that roundups ultimately lead to the inhumane maiming and death of the young, old, sick and lame horses. Plaintiffs further claim that scientific studies show serious harm to wild horses from anti-fertility drugs given to mares before release. (Pl.s' Opp. to Mot. to Dismiss at 2.)
Plaintiffs allege that Defendants violated several provisions of the Wild Horse Act and NEPA in the resulting roundup. These allegations include violations both in the process used to effect the roundup, and the decision itself to instigate a roundup.
Plaintiffs' individual claims are as follows: (1) violation of 16 U.S.C. § 1333(b)(2), which prohibits BLM from capturing and removing old, sick or lame horses, and instead culling them on the range, and additionally permits only removal of excess adoptable horses; (2) violations of §§ 1331 and 1339, which prohibit BLM from relocating horses to public lands where horses do not presently exist, and did not exist in 1971; (3) violations of §§ 1333(b)(2) and 1339 for roundup of non-excess, nonadoptable horses; (4) violations of § 1333(a), which prohibits extensive interference with wild herds without considering other options, and that HMAs be "devoted principally" to the welfare of wild herds; (5) violation of 42 U.S.C. § 4332, which requires an EIS to be prepared where there exists the possibility of significant environmental impact including uncertain or controversial effects; (6) failure to consider all reasonable alternatives to the roundup pursuant to 42 U.S.C. § 4332(E) and 40 C.F.R. § 1502.14; (7) failure to ensure scientific accuracy and integrity of NEPA documents pursuant to 40 C.F.R. § 1502.24, and failure to adequately disclose environmental impacts pursuant to
40 C.F.R. § 1508.9; (8) failure to respond to dissenting scientific opinion; (9) failure to consider impacts and effects on the environment; and (10) failure to ...