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In Defense of Animals v. United States Dept. of Interior

United States District Court, E.D. California

November 15, 2012

IN DEFENSE OF ANIMALS; Dreamcatcher Wild Horse and Burro Sanctuary; Barbara Clarke; Chad Hanson; Linda Hay, Plaintiffs,
v.
UNITED STATES DEPARTMENT OF the INTERIOR; Bureau of Land Management; Ken Salazar, Secretary of the United States Department of the Interior; Robert Abbey, Director of the Bureau Of Land Management; Ken Collum, Acting Field Manager of Eagle Lake Field Office, Defendants.

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Rachel Marie Fazio, John Muir Project, Cedar Ridge, CA, for Plaintiffs.

Ayako Sato, Erik Edward Petersen, John S. Most, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM AND ORDER

MORRISON C. ENGLAND, JR., 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, filed this action on July 15, 2010, 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 argued that the planned gather ran 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 contended that the provisions of the National Environmental Policy Act (" NEPA" ) had been violated because the Environmental Assessment (" EA" ) for the gather failed to adequately analyze a reasonable range of alternatives, failed to ensure scientific integrity and dissenting opinion, and consequently failed to take the requisite " hard look" at the proposed action for NEPA purposes. Because of the cumulative impacts occasioned by the gather and its unprecedented scope, Plaintiffs asked that the Court require the preparation of a comprehensive Environmental Impact Statement (" EIS" ) before moving forward with the gather.

Plaintiffs initially moved for preliminary injunctive relief on July 22, 2010 given the impending August 9, 2010, gather. Following the August 5, 2010, hearing on the Motion, the Court denied Plaintiffs request from the bench on grounds, inter alia, that Plaintiffs were not likely to prevail on the merits. That ruling was followed by a Memorandum and Order filed August 9, 2010, 737 F.Supp.2d 1125 (E.D.Cal.2010). Plaintiffs immediately filed a notice of interlocutory appeal. Plaintiffs' request for emergency injunctive relief was denied by the Ninth Circuit, and the gather proceeded. Plaintiffs' appeal was ultimately denied by the appeals panel on August 15, 2011, 648 F.3d 1012 (9th Cir.2011), on grounds that because the gather had already occurred, the injunctive relief sought had become moot.

Defendants thereafter filed a motion to dismiss in this court, requesting that the entire lawsuit be thrown out as moot. Because Plaintiff's complaint raised issues that remained justiciable, particularly since they could potentially resurface in future gathers, the Court denied the motion to dismiss by Memorandum and Order filed April 20, 2011, 808 F.Supp.2d 1254 (E.D.Cal.2011). Both Plaintiffs, the government and Defendant-Intervenor Safari Club International (" Safari Club" ) have now filed motions for summary judgment. The parties agreed at the time of oral argument on those motions that the case should be resolved on summary judgment.

As set forth below, the Court will grant the summary judgment requests made on behalf of the government and the Safari Club and will deny Plaintiff's concurrent request for summary judgment. Because the argument proffered by the parties closely track the arguments already made in connection with the earlier filed motion

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to dismiss, this Memorandum and Order closely follows the Court's previous April 20, 2011 ruling.

BACKGROUND

The Twin Peaks HMA comprises some 789,852 acres of public and private lands on either side of the border between California and Nevada. AR 15443. 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 BLM's stewardship of public lands, including the oversight and management of wildhorses and burros, is predicated on principles of multiple use and sustained yield. AR 15443, citing 43 U.S.C. § 173; see also AR 15450.

This case arises from the Bureau's decision, in 2010, to remove excess horses and burros from the Twin Peaks HMA. A 158-page Final Environmental Assessment for the Twin Peaks Herd Management Area Wild Horses and Burros Gather Plan (" Gather EA" ) was released in May of 2010, and a Finding of No Significant Impact (" FONSI" ) was thereafter issued in July of 2010. AR 15439, 15741, 15737. BLM's goal in proposing the Gather EA was to restore a thriving ecological balance and to prevent further degradation of habitat caused by an overpopulation of wild horses. AR 15442. The EA represented the culmination of nearly a year of study, as aided by a 30-day scoping period as well as a 30-day period for public comment followed by a public meetings and a field tour. AR 15550, 15746-47, 15750-51. The BLM received more than 2,000 comments during this process and published in its decisions both a summary by subject matter as well as responses in each category. AR 15746-47, 15750-83.

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 rose 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 July of 2010, the current population was estimated to be 2,303 horses and 282 burros, based on a twenty percent horse foal crop per year and a sixteen percent burro foal yield. AR 15472. This was close to 4.5 times more wild horses and 4 times more burros than the low range of the appropriate management level. (" AML" ). AR 15448. The AML range for the Twin Peaks area had previously been determined as constituting between 448 and 758 wild horses, and 72 and 116 burros, as established through prior agency decision, including the applicable resource management plan.[1] See

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Court's August 9, 2010 previous Memorandum and Order denying preliminary injunction, ECF No. 53: 13-15. AMLs are designed to ensure a thriving natural ecological balance consistent with multiple use objectives for the HMA. Specifically, with respect to wild horses and burros, the AML is defined as the number of animals within an HMA which achieves and maintains a thriving natural ecological balance. AR 15445. The BLM strives to remove animals from the HMA, or take other remediation measures as necessary, when population numbers exceed the established AML.

Absent a gather of excess animals, the Bureau estimated that in ten years, given similar growth predictions utilizing a median rate of approximately 23 percent, the wild horse population would exceed 6,000 to 8,000 head. AR 15532. Population modeling indicated that figure could increase to as much as 19,264 head, depending on what variables were used. AR 15523. According to the BLM, such population increases would cause serious degradation of the range's soils, vegetation, water sources, riparian areas, cultural resources and wildlife habitat. AR 15532, 15536-37, 15540-42; 15545, 15547-48. Moreover, even aside from the potential environmental degradation caused by too many animals, the Bureau went on to predict that once the habitat could no longer support such anticipated population growth, the horses would likely " crash" and experience a " substantial death loss." AR 15532, 15534.

Since the EA was prepared, an in preparation for the anticipated gather of excess horses and burros to begin on August 9, 2010, 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.

Based on the above numbers, the EA estimated, " based on an aerial direct count population inventory," that there were some 1,855 horses in excess of the AML lower limit in 2010, as well as 205 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 fairly good, 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 proposed that an attempt be made to gather the entire population of horses and burros within the HMA. As indicated above, on July 8, 2010, after preparing its EA, a FONSI was issued with respect to another gather of excess animals. The present lawsuit was thereafter filed on July 15, 2010.

Since previous gathers have typically rounded up only 80 to 90 percent of the animals, depending on the numbers actually retrieved, the EA estimated that about 180 horses will be released after the gather, leaving a total of some 450 horses and 72 burros in the HMA post-gather. AR 15542. Those numbers are consistent with the established AMLs.

The released horses would have a sex ratio of 60:40 studs to mares in order to help curb future population increases (AR

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14457); 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. See AR 155457-58.

Before the gather was scheduled to commence, and after the EA in this matter was issued, the BLM conducted another aerial population inventory to get a more exact count closer to the start of the gather. That second inventory, completed on July 26, 2010, showed a total of 2236 excess horses and 205 burros.

The gather took place in August and September of 2010 using the helicopter drive method of capture. Veterans were on site during the gather to examine animals and to make recommendations to BLM regarding the care and humane treatment of the animals. See AR 15460. After capture, BLM transported the wild horses to short-term holding facilities, and from there they were made available for adoption or sale to qualified individuals, or placed in long-term pastures. Despite dire warnings, mortality rates as a result of the capture were much lower than expected.

Plaintiffs object to the proposed gather as a direct contravention of the Act. They claim that the EA does not properly identify and categorize excess animals prior to capture. 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 NEPA's mandate that a " hard look" be taken prior to any ...


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