Home » Case Summaries » 2015 » In Defense of Animals, Dreamcatcher Wild Horse & Burro Sanctuary v. United States Department of the Interior, 751 F.3d 1054 (9th Cir. 2014)

 
 

In Defense of Animals, Dreamcatcher Wild Horse & Burro Sanctuary v. United States Department of the Interior, 751 F.3d 1054 (9th Cir. 2014)

 

In Defense of Animals (IDA),[1] a nonprofit dedicated to advocating for animals, filed a claim against the Bureau of Land Management (BLM)[2] in the United States District Court for the Eastern District of California. IDA alleged that BLM violated the Wild Free-Roaming Horses and Burros Act (WFRHBA)[3] and the National Environmental Policy Act (NEPA)[4] when it conducted a roundup of wild horses and burros in the Twin Peaks Herd Management Area (Twin Peaks HMA) in order to thin the herd. The district court held that the roundup did not violate either statute and therefore granted summary judgment to BLM. On appeal, the Ninth Circuit affirmed the district court’s ruling.

The WFRHBA was passed in 1971 to preserve wild, free-roaming horses and protect them from “capture, branding, harassment, or death.”[5] Under the WFRHBA, BLM is responsible for maintaining a “thriving natural ecological balance” in the herd management areas (HMAs).[6] In order to achieve this purpose, BLM must determine the horse and burro population that constitutes an appropriate management level for any given HMA.[7] If the herd population comes to exceed the appropriate management level, the WFRHBA directs BLM to reduce the herd population in a specific order of priority: first by destroying old, sick or lame animals; then by capturing horses and burros for private maintenance; and finally by destroying any remaining excess animals.[8]

In 2010, the appropriate management levels for the Twin Peaks HMA were 448–758 horses and 72–116 burros. Notwithstanding these limits, the herd consisted of approximately 2,303 horses and 282 burros. With such an excess quantity of animals, BLM expressed concern about the degree of foraging conducted by the animals and the resulting effects on the Twin Peaks HMA ecosystem and cultural sites.

Before proceeding with the 2010 roundup—or “gather”—BLM conducted an Environmental Assessment (EA), which resulted in a Finding of No Significant Impact (FONSI). However, IDA sought to enjoin BLM from conducting the gather and filed suit. The district court denied IDA’s motion for a preliminary injunction, and the Ninth Circuit affirmed that denial. The roundup took place in August and September of 2010.

During the roundup, BLM gathered 1,639 horses and 160 burros. Afterwards, 793 horses and 160 burros were permitted to remain in the Twin Peaks HMA and the remaining animals were either made available for private adoption or sale, or placed in holding facilities. Of those horses returned to the wild, all of the mares were injected with an immunocontraceptive, Porcine Zona Pellucida (PZP), to reduce fertility. The horses were also returned at a 60:40 male-to-female ratio to reduce fertility.

After the denial of the preliminary injunction by the Ninth Circuit, the parties resumed the pursuit of their claims in district court. The district court subsequently granted BLM’s motion for summary judgment, and IDA appealed. On appeal, the Ninth Circuit reviewed BLM’s actions to determine whether they were arbitrary or capricious.

IDA’s claims against BLM fell into two general categories: WFRHBA violations and NEPA violations. The WFRHBA claim, in turn, broke down into five distinct arguments. First, IDA argued that BLM failed to determine whether there were excess wild horses and burros in the Twin Peaks HMA. IDA argued that “excess” should not be based on the number of animals present, but instead on whether the animal population is too high to maintain a “thriving natural ecological balance.”[9] Because BLM did not show that the horse and burro population was negatively affecting the ecosystem, IDA claimed that BLM did not demonstrate that there was an excess population. However, the Ninth Circuit rejected this argument, holding that the WFRHBA determines the existence of an excess population through the appropriate management level standards, not through any actual effect on the ecosystem. IDA’s interpretation would require the destruction of an ecosystem before BLM could interfere to preserve the ecosystem.

Second, IDA argued that BLM had violated the order and priority of removal specified under the WFRHBA. IDA asserted that the order and priority provision in the WFRHBA required the removal of old, sick, or lame animals before other animals could be captured or removed, while BLM had captured all of the animals simultaneously. BLM responded that a temporary gather to determine which animals should be removed comported with the WFRHBA. The Ninth Circuit agreed, holding that the temporary roundup did not fall under the order and priority provision of the WFRHBA, and that this procedure was the most effective way to adhere to the WFRHBA’s instructions.

Third, IDA asserted that BLM violated the WFRHBA by holding the needs of grazing livestock above the interests of the wild horses and burros. The WFRHBA requires that an HMA be maintained for the welfare of wild horses and burros and that “ranges” be designated as “sanctuaries for their protection and preservation.”[10] IDA read this language as requiring BLM to promote the welfare of the horses and burros ahead of other animal interests. However, the Ninth Circuit held that the Twin Peaks HMA had never been designated as a “range,” making any argument that BLM violated its duties under that provision inapplicable.

Fourth, IDA argued that BLM failed to manage the herd at a “minimal feasible level” as required by the WFRHBA.[11] IDA based this argument on the fact that BLM pursued the animals with helicopters, captured 100% of the wild horses, removed 80% of the herd, injected the mares with PZP, and skewed the sex ratio of the horses that were returned to the Twin Peaks HMA. Nonetheless, the Ninth Circuit rejected this argument, deferring to BLM’s expertise in its determination that its actions were necessary to protect the Twin Peaks HMA ecosystem.

Finally, IDA alleged that maintaining captured horses at a long-term private holding facility violated the WFRHBA. IDA argued that the holding facilities constituted “public lands” under the WFRHBA because they were administered by BLM, and the WFRHBA prohibits the relocation of burros to public lands where they did not then exist.[12] The Ninth Circuit held that the facilities did not fall under the definition of “public land” because they were primarily administered by private entities. Therefore, the Ninth Circuit held that the relocation was permitted under the WFRHBA.

IDA also brought two claims under NEPA. First, IDA alleged that BLM violated NEPA by failing to prepare an environmental impact statement (EIS), which NEPA requires for federal actions “significantly affecting the quality of the human environment.”[13] However, the Ninth Circuit held that BLM did not need to issue an EIS in this situation because the thorough EA was sufficient to address the environmental concerns, and the FONSI was accurate. Furthermore, the Ninth Circuit held that BLM appropriately considered the relevant intensity factors, which indicated the roundup was not a significant government action.[14] IDA had claimed the intensity factors did support the issuance of an EIS because the gather was “highly controversial”[15] due to its large scope; the effects on the herd were “highly uncertain or involve[d] unique or unknown risks”[16] due to conflicting research on the use of PZP; and the gather would “establish a precedent for future actions with significant effects” by allowing for similar large-scale future gathers.[17] The Ninth Circuit rejected each of these arguments, holding that IDA did not demonstrate that the gather was “highly controversial,”[18] but rather that it was simply opposed; that the effects of PZP, although not certain, were not highly uncertain, as they had been used similarly since 1992 and were supported by scientific studies; and that there was no risk of setting a precedent because, under Ninth Circuit law, EAs cannot set binding precedent.

IDA’s final argument was that BLM violated NEPA by failing to respond to contrary evidence regarding PZP. Two studies cited by IDA indicated that the use of immunocontraceptives like PZP in wild horse populations could have negative effects on herd behavior and genetic diversity. However, the Ninth Circuit held that BLM addressed those concerns in the EA by citing to scientific evidence that demonstrated that PZP did not pose any risk to the herd. BLM did not reference the particular studies cited by IDA, but the Ninth Circuit held that the failure did not violate NEPA because BLM addressed the underlying factor and was not required to address every piece of evidence relating to that factor.

Accordingly, the Ninth Circuit held that there was no violation of either the WFRHBA or NEPA in BLM’s gather and removal of wild horses and burros in the Twin Peak HMA. Consequently, the Ninth Circuit affirmed the district court’s grant of summary judgment to BLM.

In dissent, Judge Rawlinson objected to the majority’s holding that BLM did not violate the WFRHBA. The dissent would have held that the WFRHBA did not authorize a capture of the entire herd and that that action violated the “minimal feasible level” as well as the order and priority provisions of the WFRHBA.[19] In fact, the dissent determined that this action violated the entire purpose of the WFRHBA by allowing for the capture and harassment of wild horses. Consequently, the dissent concluded that BLM abused its discretion in interpreting the WFRHBA and conducting the gather as it did.

 

 

Footnotes    (↵ returns to text)

  1. In addition to IDA, plaintiffs-appellants also included Dreamcatcher Wild Horse and Burro Sanctuary (Dreamcatcher), a non-profit dedicated to protecting the wild horses and burros, and members of IDA and Dreamcatcher: Barbara Clarke, Chad Hanson, and Linda Hay.
  2. Along with the BLM, defendants-appellees included the United States Department of the Interior (DOI), Sally Jewell in her capacity as the Secretary of DOI, Neil Kornze in his capacity as Director of the BLM, and Ken Collum in his capacity as Field Manager of Eagle Lake Field Office. The Safari Club International and the Safari Club International Foundation also intervened as defendants-appellees.
  3. 16 U.S.C. §§ 1331–1340 (2012).
  4. National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321–4370h (2012).
  5. 16 U.S.C. § 1331 (2012).
  6. Id. § 1333(a).
  7. Id. § 1333(b)(1).
  8. Id. § 1333(b)(2).
  9. 16 U.S.C. § 1333(a) (2012).
  10. Id.
  11. Id.
  12. Id. § 1339.
  13. 42 U.S.C. § 4332(2)(C) (2012).
  14. See 40 C.F.R. § 1508.27(b) (2014) (listing intensity factors).
  15. Id. § 1508.27(b)(4).
  16. Id. § 1508.27(b)(5).
  17. Id. § 1508.27(b)(6).
  18. Id. § 1508.27(b)(4).
  19. Wild Free-Roaming Horses and Burros Act, 16 U.S.C. § 1333(a), (b)(2) (2012).
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