Colorado WH& B Coalition. et. al., v. Salazar, et. al.; Complaint and Decision & Order

Case 1:06-cv-01609-RMC Complaint Filed 09/15/2006

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ________________________________________________________________________

COLORADO WILD HORSE ) AND BURRO COALITION, INC. ) 2406 15th Avenue Court ) Greeley, CO 81521 ) )

AMERICAN MUSTANG ) AND BURRO ASSOCIATION, INC. ) 2406 15th Avenue Court ) Greeley, CO 81521 ) )

THE CLOUD FOUNDATION, INC. ) a Colorado, non-profit organization ) 107 South 7th Street ) Colorado Springs, CO ) )

FRONT RANGE EQUINE RESCUE, INC. ) Civil No. ________ 2200 Twylby Road ) Larkspur, CO 80118 ) )

DR. DON MOORE ) 1787 K 6/10 Road ) Fruita, CO 81521 ) )

v.

DIRK KEMPTHORNE, ) in his official capacity as Secretary, ) United States Department of Interior ) 1849 C Street, N.W. ) Washington, D.C. 20240 )

KATHLEEN CLARKE, in her ) official capacity as Director, Bureau of Land ) Management, ) 1849 C Street, N.W. ) Washington, D.C. 20240 ) ) and ) ) ) KENT E. WALTER, in his ) official capacity as ) Field Manager, BLM, ) White River Field Office ) 73544 Highway 64 ) Meeker, CO 81641 )


VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Introduction

1. This is an action to declare illegal and set aside the Bureau of Land Management’s (BLM) imminent actions to eradicate two herds of wild mustangs from their ranges -- the Piceance-East Douglas Herd and the West Douglas Herd. These horses currently and lawfully occupy public lands in northwest Colorado and are protected under the Wild Free-Roaming Horses and Burros Act (WFHBA), 16 U.S.C. § 1331 et seq. The White River Field Office (WRFO) of the BLM is taking these actions at the direction and with the consent of the Washington Field Office (WFO) of the BLM, which approved of these actions and funded this activity before 1) the WRFO issued any documentation of its plans under the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq.,; 2) notified persons interested in these herds of wild horses or 3) sought public comment on any of its planned actions.

2. BLM plans to begin rounding up and removing wild horses from the Piceance-East Douglas Herd Management Area immediately, and plans to adopt or sell removed animals to private parties beginning as soon as September 20, 2006. In addition to rounding up the wild horses to permanently remove them from the range and place them in holding for adoption, in Piceance/East Douglas, BLM plans to administer a controversial, experimental contraceptive drug, Porcine Zona Pellucida (PZP), for the first time to the mares it will release back to the range. BLM is administering this experimental drug to these wild horse mares, and releasing them back into the wild, without knowing whether they are appropriate candidates for the drug, and without conducting any follow up or monitoring of these mares to determine whether they will develop adverse reactions to the drug or how its release may otherwise affect the environment. Plaintiffs will be moving for a preliminary injunction promptly to halt these actions unless defendants will agree to suspend this activity until the matter can be resolved on cross-motions for summary judgment.

3. In addition, defendants plan to begin rounding up and removing wild horses from the West Douglas Herd Area shortly thereafter, despite the fact that plaintiffs and others have pending protests before the Secretary of Interior, to BLM’s 2005 Amendment to its Revised Management Plan, and have been advised that protests operate to stay any activity that would be taken to pursuant to the plan. Because all of the actions BLM will undertake are contrary to law and will result in irreparable injury to plaintiffs, plaintiffs are seeking injunctive relief.

JURISDICTION AND VENUE

4. This case concerns a federal question and, therefore, jurisdiction is proper under 28 U.S.C. §1331. Venue is also proper under 28 U.S.C. § 1391(e). This Court may review defendants’ actions and order appropriate relief under the Administrative Procedure Act, 5 U.S.C. §§701 et seq.

PLAINTIFFS

5. The Colorado Wild Horse and Burro Coalition (CWHBC) is a non-profit Colorado corporation, organized to educate the public and wild horse and burro adopters about wild horse issues and to protect wild horses and burros, primarily in Colorado, but also in other states. CWHBC brings this suit on behalf of its members, who are interested in and affected by the Bureau of Land Management (“BLM’”) activities regarding management of all the natural resources, and specifically the wild horses, in this area. The Colorado Wild Horse and Burro Coalition (CWHBC) members and supporters recreate, photograph, and enjoy viewing wild horses on public lands in Colorado. This is because they visit the area often, appreciate its natural beauty, enjoy its scenery and all of its wildlife, including wild horses, and because they are aware of its historical and archeological significance. CWHBC has participated in public land reviews and decisions regarding both Piceance-East Douglas and the West Douglas Herd Areas.

6. The American Mustang and Burro Association, Inc. (AMBA) is a national organization, dedicated to the protection and preservation of America’s wild equines, service to adopters and to public and adopter education. AMBA sues on behalf of its members, some of whom are Colorado residents or visitors and who enjoy visiting Colorado’s wild horse areas to enjoy viewing wild horses and burros. AMBA has participated in public land reviews and decisions regarding both Piceance-East Douglas and the West Douglas Herd Areas.

7. The Cloud Foundation is dedicated to preventing the extinction of the Pryor Mountain Wild Horse herd and other wild horse herds on public lands, especially isolated herds with unique characteristics and historical significance. TCF was organized by Ginger Kathrens, its Executive Director. TCF sues on behalf of its supporters.

8. Front Range Equine Rescue (FRER) is a Colorado non-profit corporation established in 1997, which is dedicated to stopping the abuse and neglect of both domestic and wild horses. It is FRER’s belief that ignorance is often the main cause for equine abuse rather than outright cruelty. A primary goal of FRER is to educate new, potential, and existing horse owners on basic horse care topics such as equine nutrition, first aid, farrier care, alternative therapies, and natural horsemanship training techniques. In addition, FRER has assisted hundreds of horses, including wild horses through direct rescue and its educational programs. While some horses are donated by their owners or are rescued when abandoned, many are rescued from livestock auctions to save them from slaughter. Once rescued, FRER then provides for the direct care and rehabilitation of these horses in need.

9. FRER represents its supporters’ interests in protecting wild horses on the range and those who have been adopted and need to be rescued from improper adoptive homes. FRER does this by commenting on BLM actions to remove wild horses from their range and urging BLM and other responsible federal agencies to ensure that removals and any other federal actions taken with regard to wild horses are based on a legitimate need to undertake those actions and that the horses’ safety and welfare will be assured during those actions. FRER has had extensive experience preparing wild horses for adoption to private homes. FRER has found that when older wild horses are removed from the range, they have difficulty adjusting to being domesticated and therefore, there is a less of an adoption demand for these horses. TCF sues on behalf of its supporters.

10. Toni Moore and Barb Flores are residents of Colorado. Ms. Moore and Ms. Flores, and CWHBC and AMBA participated in the environmental review process for the actions challenged herein with respect to the Piceance-East Douglas herd and the West Douglas herd. These plaintiffs have the sincere desire to have BLM comply with NEPA, and not just “go through the motions,” with its desired outcome already pre-determined, which violates the letter and spirit of NEPA. These individuals and organizations have been the primary advocates for and protectors of wild horses in this area. They have routinely and conscientiously commented on every proposed action by BLM affecting resources in the area, attended countless meetings where the public’s input was sought and supposedly considered, kept in regular contact with local and federal agency officials and instituted administrative and federal litigation, all for the purpose of maintaining wild horses in the Piceance-East Douglas and West Douglas Herd Areas.

11. Don Moore is an equine and small animal veterinarian and has lived in or near the WRFO almost his entire life. Dr. Moore has a personal interest in viewing and enjoying wild horses in the WRRA. Having lived and worked in the area for decades, he is intimately familiar with the WRRA, its history and the presence of wild horses there. He frequently visits the public lands to see and enjoy the wild horses who live there.

12. Ms. Moore, Ms. Flores and Ms. Kathrens and other supporters of the organizations they direct have witnessed other roundups of wild horses taken off the range and the horses’ reactions to the loss of their freedom. They often have the memories of those events return to haunt them. They fear for the wellbeing and safety of the horses BLM plans to capture over the next few weeks.

13. Defendant BLM’s actions pursuant to the DRs issued on August 1, 2006 will harm and injure the interests and aesthetic enjoyment of plaintiffs in the wild horses of the Piceance/East Douglas Herd Management Area and the West Douglas herd area by causing or threatening irreversible adverse effects to these horses.

DEFENDANTS

14. Dirk Kempthorne is the Secretary of the Department of the Interior. Pursuant to the WFHBA, he is responsible for the oversight of BLM’s management of wild horses on the Nation’s public lands, including the public lands of Colorado.

15. Kathleen Clarke is the Director of the Bureau of Land Management and is responsible for implementing management decisions for wild horses in accordance with the WFHBA.

16. Kent Walter is the Field Manager for the White River Field Office (WRRA) of BLM, and is responsible for managing the wild horses of the Piceance-East Douglas Herd Management Area and the West Douglas Herd Area in compliance with the Wild Free Roaming Horses and Burros Act and its implementing regulations.

BLM’s MANAGEMENT OF WILD HORSES AND OTHER RESOURCES IN THE WRRA

17. Although the WFHBA requires BLM to protect and manage wild horses where they were found at the passage of the Act in 1971 – and BLM has acknowledged that wild horses have lived in the West Douglas Herd Area (HA) since at least the 1880s -- BLM has slated wild horses in this area for total removal (zeroing out) in various land use planning documents issued pursuant to the Federal Land Policy Management Act (FLPMA), 43 U.S.C. §1701 et seq. since 1980. BLM states that the increase in oil and gas activities in the area warrants complete eradication of a population of wild horses in this area. As early as 1975, at least one BLM employee, and more recently, as evidenced by documents obtained under FOIA, counsel for BLM, have expressed concern that zeroing out a wild horse herd area was illegal.

18. The 1980 land use planning document established that the area east of State Highway 139 would be the “preferred habitat” for the management of wild horses. This area became known as the Piceance-East Douglas Herd Management Area (HMA). At the time, the Piceance-East Douglas HMA was not slated for heavy oil/gas development, and the BLM determined that it was more convenient to manage for wild horses there. A 1981 Grazing Management Plan and EIS carried forward these earlier decisions.

19. In July, 1997, BLM issued its Revised Management Plan (RMP) for the WRRA. In a 400 + page document, BLM devoted less than a full page to wild horses. BLM states that it plans to manage for a population of zero to 50 horses in the West Douglas Herd Area for 0 to 10 years and the long term objective would be to remove all wild horses from this area. The RMP called for BLM to manage a population of 95-140
horses on the Piceance-East Douglas HMA. 1997 RMP at 2-26. No discussion was devoted to the minimum population of wild horses needed to maintain genetic diversity, nor for whether BLM would seek to use fertility control on any of the wild horses there. The 1997 RMP did not discuss the interrelationship between the Piceance-East Douglas Herd Area and the West Douglas Herd Area.

20. In large part because the 1997 RMP did not adequately address management of wild horses --- and BLM knew that its actions were subject to being set aside for this reason --- BLM began a process in 2002 of amending the RMP. The first revision to the 1997 RMP, which sought to address wild horse use of the area, was issued in 2004. The 2004 EA stated that without oil and gas stipulations --- agreements by oil and gas companies to preserve wild horse areas --- “critical wild horse habitat would be lost.” The 2004 RMP Amendment was protested by numerous groups and was withdrawn by BLM.

21. In 2005, BLM issued a second Amendment to its 1997 RMP. This amendment reaffirmed the decision BLM made in its 1997 RMP to zero out wild horses from the WDHA.

22. Currently, the WRFO is gathering ”scoping” comments on an Environmental Impact Statement (EIS) on a proposed amendment to its 1997 Resource Management Plan (RMP). The plan amendment and associated EIS will address the potential impacts of significant increases in oil and gas development within the 1.5 million acre field office over the next 20 years. The scoping comment period has been extended until September 30, 2006 to ensure the public has sufficient opportunity to provide comments.

23. BLM’s notice about the scoping comment period for this Oil and Gas EIS provides, “The lifestyles and concerns of area residents, including the activities of grazing and hunting, will be recognized in the RMPA/EIS.” While BLM’s RMPA/EIS recognizes and will provide for how oil and gas development will impact grazing and hunting, BLM’s current actions challenged herein with regard to wild horses threaten to eliminate wild horses from consideration as BLM analyzes oil and gas use in these areas.

24. BLM states that a second public comment period will follow the release of the Draft Plan/EIS, currently anticipated to be in 2007 and that it anticipates a final decision record in 2008. Unless BLM is restrained from undertaking the challenged activities herein, there will be no wild horses in the WDHA as early as this fall, 2006 and there could be no wild horses in the Piceance-East Douglas HMA by 2007.

25. BLM, itself, as well as wild horse population experts have determined that to remain viable, a wild horse population must have a minimum of 150 individuals, which generally guarantees a Ne of 50, i.e. (those individuals who are actively passing their genes on to the next generation).

26. After the roundups and removals of wild horses BLM could begin as early as September 17, 2006 --- unless restrained by this court --- wild horses will remain in such low numbers in Piceance-East Douglas Herd Management Area and the West Douglas Herd Area that their populations will not be viable. Because of this, the wild horse populations in these areas will suffer irreparable genetic harm which will jeopardize their ability to survive.

27. In 2005, the WRRA submitted its annual budget request for conducting roundups of wild horses during Fiscal Year 2006 in the Piceance-East Douglas herd management area. When it submitted its request to the Washington office, the WRFO listed the number of wild horses it wanted to gather in Piceance-East Douglas as 175 and the number of wild horses it wanted to remove as 155, leaving 20 wild horses in the area. The WRRA has received its requested budget from BLM headquarters in Washington, D.C. to complete this roundup. On June 5, 2006, BLM issued for a 30 day comment period, its Environmental Assessment (EA), purporting to elicit comment on its contemplated roundup of these wild horses and whether it should administer PZP to the wild horse mares it planned to round up.

28. In 2005, the WRRA submitted its annual budget request for conducting roundups of wild horses during Fiscal Year 2006 in the West Douglas Herd Area. When it submitted its request to the Washington office, the WRFO listed the number of wild horses it wanted to gather in the West Douglas Herd Area as 116 and the number of wild horses it wanted to remove as 110, leaving 5 wild horses in the area. The WRFO has received its requested budget from BLM headquarters in Washington, D.C. to complete this roundup.

29. On June 5, 2006, BLM issued for a 30 day comment period, its Environmental Assessment, purporting to elicit comment on its decision to roundup these wild horses.

30. After receiving authorization to leave 20 wild horses in the Piceance-East Douglas Area and 6 wild horses in the West Douglas area after its roundups were completed, and after public opposition to these actions became known, BLM conducted an aerial survey of the wild horse populations in these areas. According to this survey, the Piceance-East Douglas area has counted 300 more wild horses than BLM thought it had originally and in West Douglas Creek, has counted 90 more wild horses than BLM thought it had originally. Despite repeated requests from plaintiff representatives of CWHBC and AMBA to accompany BLM on these census missions, and to corroborate BLM’s wild horse numbers, BLM has refused to allow plaintiffs’ representatives to do so.

31. The actions of BLM in seeking, securing and using these funds to conduct the roundups in Piceance/East Douglas and West Douglas are in furtherance of the approach set forth in BLM’s Instruction [M]emorandum, which BLM has admitted, “continues to serve as guidance to the field for the conduct of specific gather and removal decisions," Fund for Animals v. BLM, 2006 WL 2381022 (D.C.Cir. 2006).

32. Pursuant to the Instruction Memo, the WRRA Field Office submitted its request for funds to remove 155 wild horses from the Piceance-East Douglas Herd Management Area and 110 wild horses from the West Douglas Herd Area and these requests were approved. The White River Field Office will remove at least this number of wild horses.

33. When BLM conducts removals of wild horses from public lands, it continues its removal operations until at least the targeted number of animals are removed. BLM does not count the number of wild horses it has left in the area, after its removal actions are completed, nor in any way seeks to ensure that it has left a certain number of wild horses so as to ensure the genetic viability of the herd that remains.

34. The West Douglas Herd Area is denominated as such because it is the area that wild horses used as their historical range in 1971, at the passage of the Act.

35. The Piceance-East Douglas Herd Management Area, is a smaller subset of the original herd area wild horses used as their historical range in 1971. Typically, and in this case, herd management areas are areas in which BLM has decided it will manage wild horses. The decision to manage horses in areas smaller than their geographic range leads to the setting of smaller “appropriate management levels (AML)” of horses for these areas. The Piceance-East Douglas Herd Management Area does not represent the HA identified as being used by the horses when the Act was passed. It has been reduced to an arbitrary and capricious "preferred habitat" by BLM officials. Therefore, any wild horses "outside the HMA" are inside the HA, and under the law and according to the implementing regulations are not subject to removal for that reason.

36. Since wild horses’ herd areas are those areas that horses were historically occupying at the passage of the Act, wild horses do not necessarily respect the artificial boundaries created by BLM when it establishes “herd management areas’ and seeks to curtail wild horse presence in or travel within these artificially created “herd management areas.”

37. BLM often seeks to justify a roundup and removal of wild horses due to the fact that the horses have roamed outside of the herd management area. The roundup and removal of wild horses from West Douglas and Piceance East Douglas are such removals.

38. When BLM conducts its helicopter gathering of wild horses, the noise associated with this action, often forces wild horses out of their normal grazing areas, into areas outside of the herd management area boundaries. When plaintiffs CWHBC and AMBA challenged a removal of wild horses from West Douglas in 2002, the Field Manager of the WRRA, James Cagney, stated in an internal memo, that BLM would conduct the roundup in any event and classify it as an “outside the HMA” roundup.

39. If BLM’s planned roundups and removals of wild horses from Piceance-East Douglas and West Douglas, will add these wild horses to the current population of removed wild horses awaiting adoption to approximately 22,000 wild horses. This will be despite the Act’s mandate that BLM only remove wild horses for which an adoption demand exists.

40. Pursuant to the Instruction Memo, the WRFO is required to remove wild horses in the category of age 10 and older. Pursuant to the “Burns” Rider, an appropriations Rider from December, 2004, wild horses age 10 and older removed from the public lands must be sold. The predominant market for wild horses this age is for slaughter. The Burns Rider states that BLM is to sell wild horses 10 years of age and older without reservation, meaning that BLM may sell horses in this age category directly to slaughter.

41. Upon realizing that they have been caught, wild horses have been known to jump or attempt to jump the six foot panels of corrals in which they are held and/or throw themselves against the panels out of fear or in a desperate attempt to escape the restrictions on their movement imposed by the corrals. Some of these horses run head long into the barriers that restrict their escape, break their necks and die. Others severely injure themselves in the process or are shot due to their injuries. Still other trapped wild horses suffer from what is called “capture myopathy,” in which they become depressed and despondent over being captured and/or being separated from their family members.

IV. Porcine Zona Pellucida (PZP)

42. Porcine Zona Pellucida (PZP) is an immunocontraceptive agent obtained from pigs. It is administered using Freund’s Complete Adjuvant (FCA), which has been
noted to cause a false positive tuberculosis test and can cause granulomas at the site of injection in a percentage of treated mares.

43. BLM has admitted that significant questions remain concerning the effects of PZP application at the population level as well as the effects on behavior, social structure, and harem dynamics of free-ranging animals. BLM has thus concluded that these questions are “best answered with field trials on wild horse herds under a research protocol,” FTP at 2.

44. BLM has stated that ovarian function needs to be assessed for a large sample of mares treated for four years and that the effects of PZP and the adjuvant, FCA, on any clinical health problems (e.g. possible abscesses, ovarian damage) “need to be observed under tightly controlled conditions.” BLM has also stated that PZP application may influence the seasonality of birth of foals.

45. Under BLM’s FTP, the prime time of year in which to administer PZP is noted to be October through February. Pursuant to BLM’s DR for Piceance-East Douglas, PZP will be administered to mares in this herd, for the first time ever. On information and belief, BLM has failed to secure prior approval to use this drug on this herd.

46. The last time BLM removed wild horses from Piceance-East Douglas was in 2002; at that time, BLM rounded up 101 horses including foals and yearlings. BLM returned 12 mares and 6 stallions to that area. BLM has waited four years to express its need to remove wild horses from the area. Its determination that it must place its decision to remove wild horses in “full force and effect,” meaning that it has an urgent need to remove these wild horses, is pretextual.

STATUTORY AND REGULATORY BACKGROUND GIVING RISE TO PLAINTIFFS’ CAUSES OF ACTION

The Wild Free-Roaming Horses and Burros Act

47. Through the 1971 Wild Free-Roaming Horses and Burros Act (WFHBA), 16 U.S.C. §§ 1331 et seq., Congress found and declared that, “wild free-roaming horses and burros are living symbols of the historic and pioneer spirit of the West; that they contribute to the diversity of life forms within the Nation and enrich the lives of the American people; and that these horses and burros are fast disappearing from the American scene.” Upon finding this, Congress stated that its policy was that “wild free-roaming horses and burros shall be protected from capture, branding, harassment, or death, and to accomplish this they are to be considered in the area where presently found as an integral part of the natural system of public lands,” 16 U.S.C. § 1331.

48. BLM and the FS have exclusive authority under the WFHBA for the protection of wild horses and burros on the public lands administered by those agencies, 16 U.S.C. § 1331(a). The WFHBA requires that BLM’s and FS’s management activities be at “the minimal feasible level,” Id. According to BLM’s own regulations, BLM must protect wild horses and burros from unauthorized capture, branding, harassment or death and provide these animals with humane care and treatment,” 43 C.F.R.§ 4700.0-2.

49. Under the WFHBA, wild horses are “to be considered in the area” where they were found in 1971 “as an integral part of the natural system of the public lands,” 16 U.S.C. § 1331. These legally protected areas are known as “herd areas,” (HAs) and are
defined as “the geographic area identified as having been used by a herd as its habitat in 1971,” 43 C.F.R. § 4710.3-1.

50. Under the WFHBA, “range,” means “the amount of land necessary to sustain an existing herd or herds of wild free-roaming horses and burros, which does not exceed their known territorial limits, and which is devoted principally but not necessarily exclusively to their welfare in keeping with the multiple-use management concept for the public lands,” 16 U.S.C. §1332 (c).

51. The Act requires the Secretary to “protect and manage wild free-roaming horses and burros as components of the public lands. . .The Secretary shall manage wild free-roaming horses and burros in a manner that is designed to achieve and maintain a thriving, natural ecological balance on the public lands,” 16 U.S.C. §1333(a). The Act provides that, “The Secretary shall maintain a current inventory of wild free-roaming horses and burros on given areas of the public lands. The purpose of such inventory shall be to: make determinations as to whether and where an overpopulation exists and whether action should be taken to remove excess animals, determine appropriate management levels and determine whether appropriate management levels should be achieved by the 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). The Act also provides that, “Where the Secretary determines. . . that an overpopulation exists on a given area of the public lands and that action is necessary to remove excess animals, he shall immediately remove excess animals from the range so as to achieve appropriate management levels,” 16 U.S.C. §1333(b)(2).

52. In the 1971 WHBA, “Congress finds and declares that wild free-roaming horses and burros are living symbols of the historic and pioneer spirit of the West; that they contribute to the diversity of life forms within the Nation and enrich the lives of the American people…” 16 U.S.C. § 1331.

53. In the Senate Committee report accompanying the bill that became law the Senate noted, “The committee wishes to emphasize that the management of the wild free-roaming horses and burros be kept to a minimum both from the aspect of reducing costs of such a program as well as to deter the possibility of “zoo like” developments,” S. Rep. 92-242, 92nd Cong., 1st Sess. 1971 at 2152. An intensive management program of breeding, branding, and physical care would destroy the very concept that this legislation seeks to preserve…leaving the animals alone to fend for themselves and placing primary emphasis on protecting the animals from continued slaughter and harassment by man,” Id.

II. National Environmental Policy Act

54. Under the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., any major federal actions that significantly affects the quality of the human environment requires the preparation of an environmental impact statement. (EIS), NEPA §102(2) (C). The language and spirit of NEPA is aimed at ensuring that an agency’s single-minded approach to a proposed action is tempered by consideration of a reasonable range of alternatives, including those with fewer adverse environmental impacts than the proposed action.

55. Agencies may decide instead of preparing an EIS, to prepare an environmental analysis (EA) first. An EA serves three purposes: it assists in agency
decision-making on whether to prepare an EIS or Finding of No Significant Impact (FONSI); it independently ensures compliance with NEPA even when no EIS is required; and it facilitates the preparation of an EIS if one is required. 40 C.F.R. § 1508.9(a).

56. NEPA requires BLM to analyze in an EA alternatives which involve unresolved conflicts concerning alternative uses of available resources even when an EIS is not required. NEPA §102(2) (C)(iii).

57. Although an EA is a “concise, public document,” it must include a discussion of the need for the proposal, alternatives, environmental impacts of the proposed action and the alternatives and a listing of the persons and agencies consulted. 40 C.F.R. §§ 1508.9(a), 1508.9(b).

58. An EA’s FONSI is only considered adequate if the agency took a “hard look” at the problem, the agency identified the relevant areas of environmental concern, the agency made a convincing case that the environmental impacts were insignificant as to the problems studied and identified; and if there were significant impacts, the agency convincingly established changes that reduced the impacts to a minimum.

59. The Council on Environmental Quality (“CEQ”), the agency responsible for implementing NEPA, and BLM’s regulations under NEPA, requires that BLM analyze the direct, indirect and cumulative impacts on the environment under the proposed action and each alternative to determine if the impacts are significant. BLM’s regulations require that this analysis be based on the best available information and should be objective, i.e. should not reflect subjective value judgments.

60. An EA may contain mitigation measures to avoid significant impacts that would otherwise require the preparation of an EIS. BLM regulations require that an EA
must identify and analyze mitigation measures which may be taken to avoid or reduce environmental harm.

61. An EA serves an important statutory purpose beyond being an initial step toward the preparation of an EIS or a FONSI. Independent of this requirement, an EA must discuss, in adequate detail, a reasonable range of alternatives.

62. An agency must take a “hard look” at the alternatives and the environmental impacts of each. An agency must consider a full range of alternatives that cover a full spectrum of possibilities and demonstrate reasoned decision-making. It must also give a reasoned explanation for rejecting each alternative.

63. BLM regulations also require that a No-Action alternative be analyzed at the same level of detail as the proposed action.

III. FEDERAL LAND POLICY MANAGEMENT ACT

64. BLM must manage public lands under concepts of multiple use and sustained yield pursuant to the Federal Land Policy Management Act (FLPMA), 43 U.S.C. §1701 et seq, FLPMA requires that the public lands planning process be accomplished through land use plans, FLPMA § 202(a). FLPMA recognizes, however, that a land use plan does not trump the statutory command of other laws, such as the WFHBA, which requires BLM to consider wild horses as an integral part of the public lands. FLPMA § 102(b)

65. FLPMA thus requires the BLM to manage the public lands for many purposes and for many members of the public.

CLAIMS FOR RELIEF

COUNT ONE (Violations of NEPA, NEPA Regulations and the APA)

66. Plaintiffs incorporate by reference here the allegations of the preceding paragraphs of this Complaint.

67. BLM failed to prepare an EIS for its proposed actions in both Piceance-East Douglas and West Douglas even though they each, separately, and cumulatively, constitute a major federal action that will significantly affect the quality of the human environment.

68. BLM’s EA failed to provide sufficient information to decision-makers and the public, in violation of NEPA.

69. BLM’s EA and DR failed to take a hard look at the environmental consequences of its actions.

70. BLM’S EA and DR did not properly analyze nor address alternatives to administering PZP on the Piceance-East Douglas herd, including but not limited to allowing the herd to regulate its population itself or via natural controls on population.

71. BLM’s EA and DR did not properly analyze nor address alternatives to the removal of the wild horses.

72. BLM’s EA and DR did not properly analyze nor address significant gaps and uncertainty in the scientific data relating to the effects of PZP on the individual horses and the population as a whole, including, but not limited to, causes of site injection lumps and/or abscesses, whether the drug would cause out of season births which could lead to deaths of foals born out of season, whether infertility from the drug could last for years longer than anticipated, whether administration of the drug would cause the population to drop to levels which threaten the herd’s genetic diversity and ability to survive catastrophic events, whether administration of the drug disrupted social and behavior activity of the bands and herd and/or whether additional funding would be needed for monitoring those horses to whom PZP had been administered.

73. BLM’s EA and DR did not properly analyze nor address the cumulative impacts of the past and future planned administration of PZP with the past and future planned removals of wild horses from the range.

74. BLM’s EA and DR did not properly disclose, address and meaningfully respond to contrary scientific opinion and evidence that BLM had itself gathered and that was presented to it by outside researchers, including but not limited to other scientific studies which contravene and do not support the selected alternative.

75. BLM’s EAs and DRs are improperly tiered to the 1997 RMP.

76. In sum, Defendant BLM’s EAs and DRs are major federal actions approved contrary to NEPA, 42 U.S.C. §4332(2)(C), and its implementing regulations. BLM failed to take the requisite hard look at the foreseeable consequences of their actions. BLM failures to comply fully with NEPA and its regulations were arbitrary, capricious, and an abuse of discretion, or otherwise not in accordance with law, and without observance of procedure required by law, thereby subject to reversal under the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq. (APA). 22

COUNT TWO
(Violations of the WFHBA, WFHBA Regulations and APA)

77. Plaintiffs incorporate by reference here the allegations of the preceding paragraphs of this Complaint.

78. BLM is not authorized to “zero out” a herd area, either directly by removing all wild horses present, or indirectly by leaving wild horses in such few numbers that they are genetically unviable.

79. BLM’s plans to zero out the West Douglas herd and to remove a significant percentage of the wild horse population of the Piceance-East Douglas Herd Management Area, leaving wild horses in numbers so few that their genetic viability is threatened, and its reliance on its 1997 RMP to take these actions violates the WFHBA.

80. These actions are arbitrary, capricious, and an abuse of discretion, or otherwise not in accordance with law, and without observance of procedure required by law, and are thereby subject to reversal under the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq. (APA).

COUNT THREE
(Violations of FLPMA, the WFHBA and the APA)

81. BLM has refused to acknowledge the historical use of the wild horses living in the Piceance-East Douglas HMA and the West Douglas HA.

82. This refusal has limited the horses’ range to those areas where BLM has determined it is convenient to manage them.

83. BLM is not authorized to “zero out” a herd area, either directly by removing all wild horses present, or indirectly by leaving wild horses in such few numbers that they are genetically unviable.

84. BLM’s reliance on the 1997 RMP to eradicate wild horses from the West Douglas HA and to remove wild horses from the Piceance-East Douglas HMA violates FLPMA and the WFHBA.

85. These actions are arbitrary, capricious, and an abuse of discretion, or otherwise not in accordance with law, and without observance of procedure required by law, and are thereby subject to reversal under the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq. (APA).

PRAYER FOR RELIEF

WHEREFORE, plaintiffs respectfully request that this Court enter judgment in favor of plaintiffs and grant the following relief:

A. Issue a declaratory judgment that:

1. Defendant BLM’s EAs and DRs for the West Douglas HA and Piceance-East Douglas Herd Area violate the National Environmental Policy Act, its implementing regulations, and the APA;

2. Defendant BLM’s EA and associated DRs and the actions planned therein violate the Wild Free Roaming Horses and Burros Act, and its implementing regulations, and are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, and without observance of procedure required by law, contrary to the APA, 5 U.S.C. §706(2)(A)-(F).

DECISION AND ORDER Aug. 5, 2009

Case 1:06-cv-01609-RMC Document 105 Filed 08/05/2009 Page 1 of 18

The facts are mostly taken from the Second Declaration of Kent E. Walter, Field Manager for BLM’s White River Field Office. See Defs.’ Status Report on West Douglas Herd Area [Dkt.# 47].

BLM counted 45 wild horses in the Douglas Creek herd unit but 36 were located east of 5 the highway on land that is presently included in the Piceance-East Douglas Herd Management Area.A Management Framework Plan is the equivalent of what is now known as a Resource 6 Management Plan.
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I. FACTS

The West Douglas Herd Area encompasses 123,387 acres of federal land managed
by BLM and 4,754 acres of private land in Northwestern Colorado, southwest of the town of Rangely and approximately 50 miles north of Grand Junction. It is located within the White River Resource Area.

In the first census conducted by BLM in 1974, it counted 9 wild horses in the West Douglas Herd Area. BLM estimates that there are now 147 wild horses in the herd area.

In 1975, BLM drafted a White River Resource Area Management Framework Plan6
that provided a framework for managing multiple uses in the area, including the management of the wild horses. In 1980, BLM issued an updated Management Framework Plan which recommended that all horses west of Douglas Creek (later designated as the West Douglas Herd Area) be removed because other resource activities in this area (namely, energy exploration) were causing the horses to disperse into areas where they did not roam in 1971, when the Wild Horse Act was enacted. In
1985, for reasons not fully explained, BLM unsuccessfully attempted to completely remove wild horses from the West Douglas Herd Area.

On July 1,1997, the Colorado State Director of BLM signed a Record of Decision for
the White River Resource Area Management Plan that called for the total removal of wild horses in the West Douglas Herd Area by 2007. However, BLM decided to reconsider its decision and to conduct further analysis before commencing the removal of the West Douglas Herd.

On April 28, 2005, BLM published an environmental assessment that considered two
alternatives: Alternative A, removing all wild horses from the West Douglas Herd Area by 2007;and Alternative B, managing a small herd of 29-60 wild horses in this area. On August 29, 2005,Kent E. Walter, Field Manager for BLM’s White River Field Office, issued a proposed Decision Record and a Finding of No Significant Impact with respect to his decision to implement Alternative A, removing all wild horses from the West Douglas Herd Area. Mr. Walter’s proposed decision was
protested by five parties, including counsel for Plaintiffs in this case.

By letters dated October 10, 2007, Bud Cribley, BLM’s Acting Assistant Director for
Renewable Resources and Planning, denied each of the five protests to Mr. Walter’s proposed decision to remove all wild horses from the West Douglas Herd Area. Mr. Cribley concluded that the White River Field Office and the Colorado State Director followed the appropriate planning procedures and complied with applicable laws in reaching their decisions. Thereafter, but also on October 10, 2007, the Colorado State Director issued a Decision Record approving Mr. Walter’s
proposed decision to remove all of the wild horses in the West Douglas Herd Area “at the earliest date.”

On July 14, 2008, BLM released its 2008 West Douglas Herd Area Wild Horse
Removal Final Decision Record and Environmental Assessment (“2008 Gather Plan”), authored by Mr. Walter, which provided that “[a]ll wild horses will be removed from within and outside the [West Douglas Herd Area] beginning no sooner than October 1, 2008” and that “[t]he gather methods used will include helicopter drive trapping, helicopter assisted roping, water trapping, or bait trapping.” See Defs.’ Combined Mem. in Opp’n to Pls.’ Mot. for Summ. J. & in Supp. of Cross-Case.

Defendants admit that the 2008 Gather Plan is a “final agency action” within the meaning 7 of the APA. Because “the requirement of ‘final agency action’ is not
jurisdictional[,]” the Court treats the admission as a waiver. John Doe, Inc. v. DEA, 484 F.3d 561,565 (D.C. Cir. 2007). However, the gather never occurred due to a lack of funding. See Defs.’ Notice of Postponement of West Douglas Gather [Dkt. # 87].

BLM currently plans to remove 100 horses from the West Douglas Herd Area pursuant to the 2008 Gather Plan beginning on September 27, 2009. See Defs.’ Notice of Intent to Conduct Partial Removal [Dkt.# 97].

Plaintiffs are four associations organized to protect wild horses and one equine
veterinarian, a former contract veterinarian for BLM, who frequently visits the West Douglas Herd Area to see and enjoy the wild horses. Plaintiffs filed their Third Amended Complaint on March 24, 2009, seeking, inter alia, a declaration that the 2008 Gather Plan exceeds BLM’s discretion in the Wild Horse Act and an order setting aside the 2008 Gather Plan as ultra vires. Pending before the Court are cross motions for summary judgment.

II. LEGAL STANDARDS
A. Standard of Review

Under the Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq., “[a]gency
action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review.” Id. § 704. The APA provides that the reviewing court shall “hold unlawful and set aside agency action . . . found to be . . . in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” Id. § 706(2)(C). “To determine if the Secretary has exceeded his statutory authority under 5 U.S.C. § 706(2)(C), the Court must engage in the two-step inquiry required by Chevron.” Anna Jacques Hosp. v. Leavitt, 537 F. Supp. 2d 24, 29-30 (D.D.C. 2008). “If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.”
Chevron, 467 U.S. at 842-43. “[I]f the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Id. at 843.

B. Summary Judgment Standard

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must be
granted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56 (c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). Moreover, summary judgment is properly granted against a party that “after adequate time for discovery and upon motion . . . fails to make a showing sufficient to establish the existence of an element essential to that party’s case,and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.

To determine which facts are “material,” a court must look to the substantive law on which each claim rests. Anderson, 477 U.S. at 248 (1986). A “genuine issue” is one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action. Celotex, 477 U.S.at 322; Anderson, 477 U.S. at 248.

While Defendants do not argue that Plaintiffs lack standing, the Court reaches the issue sua sponte (on its own initiative) because it is jurisdictional. E.g., Lee’s Summit, MO. v. Surface Transp. Bd., 231 F.3d 39, 41 (D.C. Cir. 2000) (“When there is doubt about a party’s constitutional standing, the court must resolve
the doubt, sua sponte if need be.”).

In ruling on a motion for summary judgment, the court must draw all justifiable
inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true.Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than “the mere existence of a scintilla of evidence” in support of its position. Id. at 252.

To prevail on a motion for summary judgment, the moving party must show that the nonmoving party “fail[ed] to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.

By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id. In addition, the nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999); Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Greene, 164 F.3d at 675. If the evidence “is merely colorable,
or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50
.
III. ANALYSIS

A. Standing

Associational Plaintiffs Colorado Wild Horse and Burro Coalition, Inc., American
Mustang and Burro Association, Inc., the Cloud Foundation, Inc., and Front Range Equine Rescue,Inc. “have representational standing if: (1) at least one of their members has standing to sue.One purpose of each of the associational Plaintiffs is to protect wild horses and burros, and the Court finds that neither the claims asserted nor the relief requested require the participation of an individual member.

To the extent BLM’s removal of the West Douglas Herd constitutes an injury in fact, the injury is caused by BLM’s decision to remove the herd and is redressable by an order setting aside that decision. Plaintiffs have prudential standing
because the removal of the West Douglas Herd clearly falls within the zone of interests protected or regulated by the Wild Horse Act.
(2) the interests the association seeks to protect are germane to its purpose, and (3)neither the claim asserted nor the relief requested requires the participation of an individual member in the lawsuit.” Am. Library Ass’n v. FCC, 401 F.3d 489, 492 (D.C. Cir. 2005).

Individual Plaintiff Dr. Don Moore and the associational Plaintiffs’ members have constitutional standing to sue if “(1)[they] ha[ve] suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action
of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 180-81 (2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). They have prudential standing if their injury “arguably falls within the zone of interests protected or regulated
by the statutory provision or constitutional guarantee invoked in the suit.” Bennett v. Spear, 520 U.S. 154, 162 (1997).

The only real issue is whether Plaintiffs will suffer an injury in fact if the West
Douglas Herd is removed. “It is clear that the person who observes . . . a particular animal threatened by a federal decision is facing perceptible harm, since the very subject of his interest will no longer exist.” Lujan, 504 U.S. at 566. Such is the case here with respect to individual Plaintiff Dr. Don Moore and associational Plaintiffs Colorado Wild Horse and Burro Coalition, Inc., and
American Mustang and Burro Association, Inc. The Court need not decide whether associational Plaintiffs the Cloud Foundation, Inc. and Front Range Equine Rescue, Inc. also have standing. See Mountain States Legal Found. v.Glickman, 92 F.3d 1228, 1232 (D.C. Cir. 1996) (“if constitutional and prudential standing can be
shown for at least one plaintiff, [the court] need not consider the standing of the other plaintiffs to raise that claim”).
Donald E. Moore (“Seeing [the West Douglas Herd] in their natural surroundings and running free is essential to the aesthetic enjoyment of these [horseback] trips, which I have been taking for the past 55 years.”); id., Ex. 3 (Decl. of Toni Hutcheson Moore on behalf of Colorado Wild Horse and Burro Coalition, Inc.) (“Further removals will have a significant impact on me and my
family to observe wild horses in the White River Field Office.”); id., Ex. 4 (Decl. of Barbara Flores on behalf of American Mustang and Burro Association, Inc.) ¶ 1 (“An area so rich in wild horse and native American history in such a beautiful setting makes my spirit soar to visit it and catch the now isolated glimpse of the last remaining wild horses in West Douglas.”). Therefore, Plaintiffs have
standing to challenge the 2008 Gather Plan.

B. The Wild Horse Act

The Wild Horse Act provides that “Congress finds and declares that wild freeroaming
horses and burros are living symbols of the historic and pioneer spirit of the West; that they contribute to the diversity of life forms within the Nation and enrich the lives of the American people; and that these horses and burros are fast disappearing from the American scene.” 16 U.S.C. § 1331. The Act further provides that “[i]t is the policy of Congress that wild free-roaming horses and burros shall be protected from capture, branding, harassment, or death; and to accomplish this they are to be considered in the area where presently found, as an integral part of the natural system. BLM has interpreted the term “where presently found” to mean “the geographic area identified as having been used by a herd as its habitat in 1971.” 43 C.F.R. § 4700.0-5(d) (definition of “herd area”).

As used in the Wild Horse Act, “Secretary” “means the Secretary of the Interior when used in connection with public lands administered by him through the BLM and the Secretary of Agriculture in connection with public lands administered by him through the Forest Service.” U.S.C. § 1332(a). In this case the public lands are administered by the Secretary of the Interior through BLM.

It is a federal crime to remove a wild free-roaming horse or burro from
public lands, convert a wild free-roaming horse or burro to private use, or kill or harass a wild freeroaming horse or burro. See id. § 1338(a)(1)-(3).

Congress delegated to the Secretary of Agriculture and the Secretary of the Interior
jurisdiction over all wild free-roaming horses and burros “for the purpose of management and protection in accordance with the provisions of this chapter.” Id. § 1333(a). Section 1333(a) 12 provides that “[t]he Secretary is authorized and directed to protect and manage wild free-roaming horses and burros as components of the public lands, and he may designate and maintain specific ranges on public lands as sanctuaries for their protection and preservation . . . .” Id. It further
provides that “[t]he Secretary shall manage wild free-roaming horses and burros in a manner that is designed to achieve and maintain a thriving natural ecological balance on the public lands” and that “[a]ll management activities shall be at the minimal feasible level . . . in order to protect the natural ecological balance of all wildlife species which inhabit such lands, particularly endangered wildlife
species.” Id. Section 1333(b)(1) requires BLM to maintain a current inventory of wild horses and burros so that it can “make determinations as to whether and where an overpopulation exists and whether action should be taken to remove excess animals; determine appropriate management levels

The term “range” is defined as “the amount of land necessary to sustain an existing herd or herds of wild free-roaming horses and burros, which does not exceed their known territorial limits, and which is devoted principally but not necessarily exclusively to their welfare in keeping with the multiple-use management concept for the public lands.” 16 U.S.C. § 1332(c).

Section 1333(b)(2) provides that when BLM determines “that an overpopulation exists on a given area of the public lands and that action is necessary to remove excess animals, [the Secretary] shall immediately remove excess animals from the range so as to achieve appropriate management levels.” Id. § 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).
Section 1333(b)(2) specifically provides an “order and priority” for removal of excess animals “until all excess animals have been removed so as to restore a thriving natural ecological balance to the range, and protect the range from the deterioration associated with overpopulation.”13 Id. § 1333(b)(2). Specifically, it first provides that BLM “shall order old, sick, or lame animals to
be destroyed in the most humane manner possible.” Id. § 1333(b)(2)(A). Second, BLM “shall cause such number of additional excess wild free-roaming horses and burros to be humanely captured and removed for private maintenance and care for which [the Secretary] determines an adoption demand exists by qualified individuals . . . .” Id. § 1333(b)(2)(B). Third, and as a last resort, BLM “shall
cause additional excess wild free-roaming horses and burros for which an adoption demand by does not exist. While the statute does not define “program” or even reference it elsewhere in § 1333, the only plausible “program” that is “authorized” in the section is the removal of excess animals. It cannot be said that § 1333 authorizes a “program” to remove non-excess animals.

Congress also gave BLM authority to sell any excess animal that is more than 10 years old or that has been offered unsuccessfully for adoption at least
three times. See id. § 1333(e)(1). Congress stipulated five conditions upon which the animals “shall lose their status as wild free-roaming horses or burros and shall no longer be considered as falling within the purview of this chapter.” Id. § 1333(d). The first is if title to an excess animal has passed to a qualified
individual for adoption or private maintenance. See id. § 1333(d)(1). The second is if an excess animal has been transferred for private maintenance or adoption and “die[s] of natural causes before passage of tile.” Id. § 1333(d)(2). The third is if an excess animal is destroyed by BLM “pursuant to subsection (b) of this section.” Id. § 1333(d)(3). The fourth is if a wild free-roaming horse or burro dies of natural causes on public lands or private lands where the animal was maintained and
BLM has authorized disposal of the animal. See id. § 1333(d)(4). And the fifth is if a wild freeroaming horse or burro is destroyed or dies “for purposes of or incident to the program authorized in this section.” Id. § 1333(d)(5). Any excess animal that is sold by BLM pursuant to § 1333(e) 14 also is no longer “considered to be a wild free-roaming horse or burro for the purposes of this chapter.” Id. § 1333(e)(4).
Finally, § 1339, entitled “Limitation of authority,” provides that “[n]othing in this
chapter shall be construed to authorize the Secretary to relocate wild free-roaming horses or burros to areas of the public lands where they do not presently exist.” Id.

Defendants initially took the position that BLM had determined that the horses in West Douglas were “excess animals.” See Defs.’ Memorandum at 21. However, Defendants conceded the point by abandoning it at oral argument. See Tr. at 6-7. Further, the record reflects that “[t]he principal problem in maintaining wild horses in the West Douglas Herd Area is a major shift in wild horse grazing use patterns that has occurred since the early 1980’s.” A.R. Vol. 4, p. 14. “It is probable that intense energy exploration and development occurring in the northern part of the herd
area has concentrated use in the south.” Id. “This change of use has resulted in overgrazing the Texas Creek drainage, and horse use in Missouri and Evacuation Creeks that are not a part of the 1971 herd area.” Id. Accordingly, it is this shift in the West Douglas Herd’s grazing patterns, likely caused by human development, and not overpopulation, that formed the basis for BLM’s decision to remove the West Douglas Herd.

B. BLM’s Authority to “Manage” Wild Free-Roaming Horses and Burros

Against this backdrop, Defendants take the extreme position that it is within BLM’s
discretion to remove the entire West Douglas Herd, a herd comprised of wild free-roaming horses that Defendants conceded at oral argument BLM has not determined to be “excess animals.” Tr. at 6 (“THE COURT: Well, are you saying that the 147 horses in the West Douglas area are excess? MS. FLOOM: No, Your Honor. BLM has – our position is that BLM is not required to make a determination that those horses are excess before removing them from the herd area.”).

Defendants assert that implicit in BLM’s authority to “manage” wild free-roaming horses and burros in § 1333(a) is the discretion to remove the very animals that Congress intended to protect in the Wild Horse Act. See id. at 6-7 (“THE COURT: Where do you find authority to remove horses that are not excess? MS. FLOOM: Your Honor, that authority is inherent within BLM’s broad authority
to manage horses. . . . Under Section 1333 of the statute, BLM is given broad authority to manage wild horses.”). The Court declines to afford BLM’s interpretation deference. E.g., Am. Horse Prot.
Ass’n, Inc. v. Watt, 694 F.2d 1310, 1319 (D.C. Cir. 1982) (noting that under the Wild Horse Act “the Secretary’s discretion remains bounded” and that “[h]is orders are subject to review and may be overturned if his action is arbitrary”).

The Court expresses no opinion about whether BLM has the authority to remove an entire herd that it has determined, in accordance with the Wild Horse Act, to be “excess animals.” Alternatively, and for the same reasons, the Court finds that BLM’s decision to remove an entire herd of concededly non-excess wild free-roaming horses and burros is an impermissible construction of the of the Wild Horse Act under step two of Chevron.

The initial inquiry under Chevron is “whether Congress has directly spoken to the
precise question at issue.” Chevron, 467 U.S. at 842. “If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. at 842-43. However, “if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on
a permissible construction of the statute.” Id. at 843. The “specific issue” here is not whether BLM may remove an entire herd of wild free-roaming horses and burros, as Defendants assert; the “specific issue” is whether BLM may remove an entire herd of wild free-roaming horses and burros that BLM concededly has not determined to be “excess animals” within the meaning of the Wild Horse Act. For the following reasons, the Court finds that Congress clearly intended to protect 16
non-excess wild free-roaming horses and burros from removal, and that BLM’s removal authority is limited to those wild free-roaming horses and burros that it determines to be “excess animals” within the meaning of the Wild Horse Act.

BLM’s authority to “manage” wild free-roaming horses and burros is expressly made
subject to “the provisions of this chapter[,]” 16 U.S.C. § 1333(a), including the provision that “[i]t is the policy of Congress that wild free-roaming horses and burros shall be protected from capture . . . .” Id. § 1331. It would be anomalous to infer that by authorizing the custodian of the wild freeroaming
horses and burros to “manage” them, Congress intended to permit the animals’ custodian to subvert the primary policy of the statute by capturing and removing from the wild the very animals that Congress sought to protect from being captured and removed from the wild.

Defendants argue that the horses will not be “eradicated” or “eliminated” inasmuch
as BLM intends to continue to manage the horses not in the wild but through private adoption or long-term care. See Answer to 3d Am. Compl. ¶ 2. But BLM’s directive is “to protect and manage wild free-roaming horses and burros as components of the public lands . . . .” 16 U.S.C. § 1333(a)(emphasis added). Congress did not authorize BLM to “manage” the wild horses by corralling them
for private maintenance or long-term care as non-wild free-roaming animals off of the public lands.

Upon removal for private adoption and/or long-term care, the West Douglas Herd would forever cease to be “wild free-roaming” horses “as components of the public lands” contrary to Congress’s intent to protect the horses from capture.

Moreover, the statute expressly provides that BLM’s “management activities shall
be at the minimal feasible level . . . .” Id. (emphasis added). It is difficult to think of a “management activity” that is farther from a “minimal feasible level” than removal. While Congress did not specifically define “manage,” it did provide a list of the “management activities” it envisioned. The management activities that Congress had in mind were for BLM to “make determinations as to whether and where an overpopulation exists and whether action should be taken to remove excess
animals; determine appropriate management levels of wild free-roaming horses and burros on these areas of public lands; and determine whether appropriate management levels should be achieved by the removal or destruction of excess animals, or other options (such as sterilization, or natural controls on population levels).” Id. § 1333(b)(1) (emphasis added). Conspicuously omitted from this list is any reference to a determination by BLM to remove non-excess animals.


While the Court is aware that the absence of an express limitation on BLM’s authority to remove non-excess animals could be interpreted to mean that Congress intended to allow BLM that authority, the Court rejects that statutory interpretation. See Am. Petroleum Inst. v. EPA, 52 F.3d 1113, 1120 (D.C. Cir. 1995) (“we will not presume a delegation of power based solely on the fact
that there is not an express withholding of such power”).
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Further, Congress prescribed a detailed statutory procedure for removing excess
animals. See id. § 1333(b)(2)(A)-(C). Congress “specified both the circumstances under which BLM may determine that an overpopulation of wild horses exists and the means the Agency may use to control horse populations.” Am. Horse Protection Ass’n, 694 F.2d at 1316. Yet there is no procedure in the statute for removing non-excess animals. While it is true, as Defendants argue, that nothing in the statute expressly precludes BLM from removing non-excess animals, it would make
no sense for Congress to provide detailed procedures for removing excess animals but no procedure at all for removing non-excess animals. For this reason, the Court rejects Defendants’ proposed construction that § 1333(b) requires the removal of excess animals whereas § 1333(a) permits the removal of non-excess animals. In light of the statute’s purpose to protect wild free-roaming horses and burros, the Court finds that the only plausible inference to be drawn from the omission of any
procedure for removing non-excess animals is that Congress did not intend for BLM’s management authority to be so broad.

This inference is bolstered by the fact that Congress specifically excluded from the
Act’s coverage those excess animals that are adopted, sold, or destroyed following removal by BLM pursuant to § 1333(b), see 16 U.S.C. § 1333(d) & (e)(4), but the Act contains no exclusion for the adoption, sale, or destruction of non-excess animals removed by BLM pursuant to § 1333(a), the provision of the statute authorizing BLM to “manage” wild free-roaming horses and burros. In Case 1:06-cv-01609-RMC Document 105 Filed 08/05/2009 Page 15 of 180 As already noted, Defendants aver that “the horses will be removed from West Douglas but BLM will manage the horses elsewhere, through adoption or long-term care.” Answer to 3d Am.
Compl. ¶ 2. However, given Defendants’ broad interpretation of BLM’s management authority, Defendants’ averment is of little comfort that BLM will not later decide to destroy the West Douglas Herd, should adoption prove unsuccessful and long-term care too expensive.
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Congress expressly limited BLM’s authority “to relocate wild free-roaming horses or
burros to areas of the public lands where they do not presently exist.” Id. § 1339. Given the policy expressed in the statute, it would make no sense to prohibit BLM from relocating wild horses to public lands where they did not historically exist but permit BLM to take the more drastic measure of removing non-excess animals from the public lands altogether.

Finally, the Court notes that the original 1971 Act contained a provision that
empowered the Secretary to destroy wild free-roaming horses or burros “when in his judgment such action is necessary to preserve and maintain the habitat in a suitable condition for continued use.” Pub. L. No. 92-195, § 3(c), 85 Stat. 649, 650 (Dec. 15, 1971). Congress repealed that provision in 1978 and replaced it with the current provision which speaks only to BLM’s authority to remove and destroy excess animals. See Pub. L. No. 95-514, § 14(a), 92 Stat. 1803, 1808 (Oct. 25, 1978); see
also H.R. Rep. No. 95-1737, at 14 (1978) (“The conferees further agreed to retain the House bill’s mandate to the Secretaries to remove excess wild horses and burros from the public lands.”) (emphasis in original). The Court infers from that repeal that Congress intended to eliminate BLM’s discretion to destroy non-excess animals. Insofar as BLM’s decision to remove the West Douglas Herd makes the horses eligible for eventual destruction, the decision is contrary to Congress’s intent in the 1978 amendments to preclude BLM from destroying non-excess animals in order to
maintain the habitat.


The Court expresses no opinion on the lawfulness of any other BLM action challenged by Plaintiffs. Nor does the Court opine on whether BLM violated the National Environmental Policy Act, 42 U.S.C. § 4321 et seq., or the Federal Land Policy Management Act, 43 U.S.C. § 1701 et seq.
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Defendants protest that because wild free-roaming horses will continue to inhabit the
Piceance-East Douglas Herd Management Area, BLM’s decision to remove the West Douglas Herd will not result in the removal of all of the horses historically found in the Douglas Creek wild horse herd unit. See Defs.’ Reply at 7 (Plaintiffs cannot state a claim under the Wild Horse Act “because the BLM is not removing all horses from this historical range”). The argument misses the point.
Defendants admit that “[t]he area of wild horse use at the passage of the Act was an area of 187,970 acres known as the ‘Douglas Creek wild horse herd unit,’” and that the herd unit encompassed the area that the West Douglas Herd now inhabits. Defs.’ Mem. at 14-15; see also Defs.’
(“Defendants do not dispute that the administrative record reflects that some wild horses were present in 1974 in the area now known as the West Douglas H[erd] A[rea].”). That “BLM will continue to manage horses in the Douglas Creek herd unit because wild horses will be maintained in the Piceance-East Douglas HMA,” Defs.’ Mem. at 15, does nothing to remedy BLM’s lack of statutory authority to remove non-excess animals historically found in the Douglas Creek herd unit,
including the West Douglas Herd Area.

IV. CONCLUSION

For the foregoing reasons, the Court finds that the 2008 Gather Plan was “in excess
of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2)(C). 20
A prerequisite to removal under the Wild Horse Act is that BLM first determine that an overpopulation exists and that the wild free-roaming horses and burros slated for removal are “excess animals.” BLM concededly has not made such a determination with respect to the horses

Case 1:06-cv-01609-RMC Document 105 Filed 08/05/2009 Page 17 of 18
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