TRO BRIEF

7/31/2019 TRO BRIEF

1/41

THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

AMERICAN WILD HORSE PRESERVATION )

CAMPAIGN, et al., )

)

Plaintiffs, )

)

v. ) Civ. No. 11-01352 (ABJ)

)

KEN SALAZAR, Secretary )

Department of the Interior, et al., )

)

Defendants. )

_______________________________

MEMORANDUM IN SUPPORT OF PLAINTIFFS

MOTION FOR A TEMPORARY RESTRAINING ORDER

AND PRELIMINARY INJUNCTION

_______________________________

Katherine A. Meyer

Jessica Almy

MEYER GLITZENSTEIN & CRYSTAL

1601 Connecticut Ave., N.W.

Suite 700

Washington, D.C. 20009

(202) 588-5206

Counsel for Plaintiffs

July 29, 2011

Case 1:11-cv-01352-ABJ Document 5-1 Filed 07/29/11 Page 1 of 41

7/31/2019 TRO BRIEF

2/41

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................................................................................

INTRODUCTION ................................................................................................................

BACKGROUND ..................................................................................................................

I. The Relevant Statutory and Regulatory Scheme ..

A. The Wild Free-Roaming Horses and Burros Act ..

B. The National Environmental Policy Act ...

II. The BLMs Decision At Issue In This Case .

A. The BLMs Preliminary EA ..

B. The BLMs Final EA, Decision and FONSI .

C. The BLMs Modified Decision Record .

III. Proceedings To Date .

ARGUMENT

I. PLAINTIFFS HAVE RAISED SERIOUS ISSUES ON THEMERITS A. The BLM Has Violated NEPA .

1. The BLM Failed To Provide The Public AnOpportunity To Comment On Its Chosen Management

Action

2. The BLM Failed To Consider Several Major

Environmental Impacts Of Its Chosen Action ..

a) The BLM Failed To Consider The ImpactsOnThe Individual Horses and the Herds

Social Structures ...

iii

1

1

1

1

5

7

7

11

13

15

15

15

16

17

18

18


7/31/2019 TRO BRIEF

3/41

ii

b) The BLM Failed To Analyze The ImpactsOf Its Action On The Genetic Viability Of

The Herds ..

c) The BLM Did Not Analyze Whether Its

Chosen Management Approach WouldActually Meet TheAgencys StatedObjectives.

3. The BLM Failed To Prepare An EIS Even Though

Many Of The Significance Factors Are Present Here ...

B. The BLM Has Also Violated Its Obligations Under TheWFRHBA .

II. ALL OF THE EQUITIES WEIGH IN FAVOR OF GRANTING

THE REQUESTED RELIEF.

CONCLUSION .

21

22

24

28

29

35


7/31/2019 TRO BRIEF

4/41

iii

TABLE OF AUTHORITIES

FEDERAL CASES

Am. Farm Bureau Fed'n v. EPA,

559 F.3d 512 (D.C. Cir. 2009) ..................................................................................................... 17

American Horse Protection Assoc. v. Watt,

694 F. 2d 1310 (D.C. Cir. 1982) .................................................................................................. 29

Amoco Prod. Co. v. Village of Gambrell,

480 U.S. 531 (1987) .................................................................................................................... 30

Anderson v. Evans,314 F.3d 1006 (9th Cir. 2002) ......................................................................................... 25, 26, 27

Public Serv. Co. of Colo. v. Andrus,

825 F.Supp 1483 (D. Idaho 1993). .............................................................................................. 24

Animal Legal Def. Fund v. Glickman,154 F.3d 426 (D.C. Cir. 1998) .................................................................................................... 30

Blue Mnt. Biodiversity Project v. Blackwood,

161 F.3d 1208 (9th Cir. 1998) ..................................................................................................... 25

Brady Campaign to Prevent Gun Violence v. Salazar,612 F. Supp. 2d 1 (D.D.C. 2009) ........................................................................................... 33, 34

City of Waukesha v. EPA,

320 F.3d 228 (D.C. Cir. 2003) ..................................................................................................... 17

Colo. Wild Horse and Burro Coal. v. Salazar,

639 F. Supp. 2d 87 (D.D.C. 2009) ........................................................................................... 3, 25

Cuomo v. United States Nuclear Regulatory Comm'n,

772 F.2d 972 (D.C. Cir. 1985) ..................................................................................................... 16

Fund for Animals v. Clark,27 F. Supp. 2d 8 (D.D.C. 1998) ................................................................................................... 34

Fund for Animals v. Norton,

281 F. Supp. 2d 209 (D.D.C. 2003) ...................................................................................... passim

Fund for Animals v. Norton,374 F. Supp. 2d 91 (D.D.C. 2005) ............................................................................................... 33

Garvey v. Nat'l Transp. Safety Bd.,190 F.3d 571 (D.C. Cir. 1999) ..................................................................................................... 16


7/31/2019 TRO BRIEF

5/41

iv

Habitat for Horses v. Salazar,745 F. Supp. 2d 438 (S.D.N.Y. 2010) ......................................................................................... 32

Humane Soc'y of the U.S. v. Johanns,

520 F. Supp.2d 8 (D.D.C. 2007) ........................................................................................... passim

In Defense of Animals v. Salazar,675 F. Supp. 2d 89 (D.D.C. 2009) ............................................................................................... 33

Japan Whaling Assoc. v. Am. Cetacean Soc'y,

478 U.S. 221 (1986) .................................................................................................................... 30

Lead Indus. Ass'n v. EPA,

647 F.2d 1130 (D.C. Cir. 1980) ................................................................................................... 17

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) .................................................................................................................... 30

Motor Vehicle Mfrs. Ass'n v. State Farm Mutual Auto. Ins. Co.,

463 U.S. 29 (1983) .......................................................................................................... 17, 24, 28

Patriot Inc. v. U.S. Dep't of Housing and Urban Dev't.,

963 F. Supp. 1 (D.D.C. 1997) ...................................................................................................... 34

Public Citizen v. Dep't of Transp,316 F.3d 1002 (9th Cir. 2003) ..................................................................................................... 25

Robertson v. Methow Valley Citizens Council,490 U.S. 332 (1989) .................................................................................................................... 24

Save Our Ecosystems v. Clark,747 F.2d 1240 (9th Cir. 1984) ..................................................................................................... 18

Town of Cave Creek, Arizona v. FAA,

325 F.3d 320 (D.C. Cir. 2003) ............................................................................................... 17, 18

Wash. Metro. Area Transit Comm'n v. Holiday Tours,

559 F.2d 841 (D.C. Cir. 1977) ............................................................................................... 16, 30

FEDERAL STATUTES

16 U.S.C. 1331 et seq.,................................................................................................. 2, 19, 25, 3416 U.S.C. 1333 ..................................................................................................................... 2, 3, 26

16 U.S.C. 1533 ............................................................................................................................. 28

42 U.S.C. 4321 et seq.,................................................................................................................... 5

42 U.S.C. 4332(C) ............................................................................................................... 5, 6, 245 U.S.C. 706(2)(A), (D) ............................................................................................................. 16


7/31/2019 TRO BRIEF

6/41

v

REGULATIONS

40 C.F.R. 1500.1 ........................................................................................................................ 5, 6

40 C.F.R. 1500.2(d) ..................................................................................................................... 1840 C.F.R. 1500.3 ............................................................................................................................ 6

40 C.F.R. 1508.13 .......................................................................................................................... 740 C.F.R. 1508.27 .................................................................................................. 7, 24, 25, 26, 2843 C.F.R. 4700.0-2 ......................................................................................................................... 4

43 C.F.R. 4700.0-6 ....................................................................................................................... 19

43 C.F.R. Part 4700........................................................................................................................... 4


7/31/2019 TRO BRIEF

7/41

INTRODUCTION

This case involves a challenge to a recent decision by the Bureau of Land Management

(BLM) to round-up hundreds of wild, free-roaming horses from public lands in Wyoming, and to

castrate most of the male horses and then return them to the range, in a purported effort to control

further degradation of this land that is also used by private livestock owners to graze thousands of

cattle and sheep. However, because the BLMs action is completely unprecedented, and will only

serve to undermine the will of Congress to preserve and protect these horses as wild, free-

roaming components of the public land, and because the BLM failed to consider any of the

various devastating environmental impacts of this action and failed to prepare an Environmental

Impact Statement before embarking on its new management experiment, its proposed action is

unlawful under both the Wild Free-Roaming Horses and Burros Act and the National Environmental

Policy Act. Therefore, because the plaintiffs aesthetic interests in continuing to enjoy these animals

in their wild, free-roaming state will forever be destroyed if the BLM goes forward with its

radical management plan, they have asked the Court to enter a temporary and preliminary injunction

to halt this extremely controversial action until the Court has an opportunity to review and resolve

plaintiffs claims on the merits.

BACKGROUND

To put this case in context, it is important to review the relevant statutory and regulatory

framework, as well as the events that have precipitated the need for emergency injunctive relief.

I. The Relevant Statutory and Regulatory Scheme

A. The Wild Free-Roaming Horses and Burros Act

Finding that wild free-roaming horses and burros are living symbols of the

historic and pioneer spirit of the West, and that they contribute to the diversity of life forms


7/31/2019 TRO BRIEF

8/41

-2-

within the Nation and enrich the lives of the American people, Congress enacted the Wild Free-

Roaming Horses and Burros Act (WFRHBA or Act), 16 U.S.C. 1331 et seq., to ensure that

wild free-roaming horses and burros shall be protected from capture, branding, harassment,

[and] death, and be considered in the area where presently found, as an integral part of the

natural system of the public lands. Id. 1331 (emphasis added); see also Senate Rep. No. 92-242

(June 25, 1971) at 1 (identifying wild horses as a national esthetic treasure and living symbols of

the rugged independence and tireless energy of our pioneer heritage). The Act was enacted as a

result of [w]idespread concern for the continued survival of these animals and their protection from

continuing depredation, and to protect the remaining wild horses from extermination. Senate Rep.

No. 92-242 (June 25, 1971) at 2 (emphasis added).

The Act directs the Secretary of the Department of Interior to protect and manage

wild free-roaming horses . . . as components of the public lands, and, towards that end, provides that

the Secretary may designate and maintain specific ranges on public lands as sanctuaries for their

protection and preservation. 16 U.S.C. 1333(a) (emphasis added). It further provides that the

Secretary shall manage wild free-roaming horses . . . in a manner that is designed to achieve and

maintain a thriving natural ecological balance on the public lands, and that for purpose of carrying

out these duties he shall consider the recommendations of qualified scientists in the field of biology

and ecology. Id. (emphasis added). The Secretarys duties have been delegated to the BLM with

respect to the public lands at issue in this case. See Colo. Wild Horse and Burro Coal. v. Salazar, 639

F. Supp. 2d 87, 93 n.12 (D.D.C. 2009).

To further ensure the objectives of the statute, the Act provides that [a]ll management

activities employed by the BLM shall be at the minimal feasible level. 16 U.S.C. 1333(a)


7/31/2019 TRO BRIEF

9/41

1 However, Congressional appropriations language currently prohibits the destruction of

healthy, unadopted wild horses and burros in the care of the Bureau of Land Management . . . or

for the sale of wild horses and burros that results in their destruction for processing into

commercial products. Interior Dept. and Further Continuing Appropriations, Fiscal Year 2010,

Pub. L. No. 111-88, 123 Stat. 2907 (2009).

-3-

(emphasis added).

The Act further provides that the BLM shall maintain a current inventory of

wild horses on public lands to determine whether and where an overpopulation exists and whether

action should be taken to remove excess animals, and to determine appropriate management levels

of wild free-roaming horses and burros on these areas of the public lands. Id. 1333(b)(1). This

inventory also allows the BLM to determine whether such levels should be achieved by the removal

or destruction of excess animals, or through other options (such as sterilization, or natural controls

on population levels). Id. When the BLM determines that an overpopulation of wild horses exists

on a particular area of public lands, and that it is necessary to remove excess animals, for the

purpose of restor[ing] a thriving natural ecological balance to the range, and [to] protect the range

from deterioration associated with over population, it must remove excess animals from the range

so as to achieve appropriate management levels. Id. 1333(b)(2). The term excess animals is

defined to mean those wild free-roaming horses or burros 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). Once the agency determines that there are excess animals that must be

removed, it may place those animals for adoption by members of the public, humanely euthanize the

animals, or, in certain circumstances, offer the animals for sale. Id. 1333(b)(2); 1333(e).1

To further ensure that the agency is obtaining sound information upon which to base its

decisions to remove wild horses from the public lands, the Act directs the BLM and United States


7/31/2019 TRO BRIEF

10/41

-4-

Department of Agriculture to appoint a joint advisory board to advise them on any matter relating

to wild free-roaming horses . . . and their management and protection. Id. 1337.

The BLM has promulgated implementing regulations for the statute, see 43 C.F.R. Part 4700,

for the purpose of managing wild horses as an integral part of the natural system of the public lands

under the principle of multiple use; to protect[] . . .wild horses . . . from unauthorized capture,

branding, harassment or death; and to provide for the humane care and treatment of wild horses.

43 C.F.R. 4700.0-2 (emphasis added). Toward those ends, the regulations provide that [w]ild

horses . . . shall be managed as self-sustaining populations of healthy animals in balance with other

uses and the productive capacity of their habitat, and that [m]anagement activities affecting wild

horses . . . shall be undertaken with the goal or maintaining free-roaming behavior. Id. 4700.0-6

(a), (c) (emphasis added).

The regulations provide that for purposes of managing wild horses, the BLM shall establish

herd management areas (HMAs) based on the geographic areas that were used by these wild

animals in 1971 when the WFRHBA was enacted, see id. 4700.0-5(d), 4710.3-1. in keeping with

the statutes intent that, in the words of the BLM, the wild horses are considered an integral part of

the national system of public lands in the areas where they were found in 1971. See BLM Wild

Horses and Burros Management Handbook at 6, Plaintiffs Exhibit (Pl. Ex.) A (emphasis added).

The BLM then sets an appropriate management level (AML) for each such HMA. Id. at 17.

As explained by the BLMs own manual, the AML shall be a population range within

which the wild horses in a particular HMA can be managed for the long term. Id. Thus, [t]he

AML upper limit shall be established as the maximum number of wild horses which results in a

[thriving natural ecological balance] and avoids a deterioration of the range, and the AML lower


7/31/2019 TRO BRIEF

11/41

-5-

limit shall normally be established at a number that allows the population to grow (at the annual

population growth rate) to the upper limit over a 4-5 year period, without any interim gathers to

remove excess [wild horses]. Id. The BLMs manual further explains that in setting the AMLs, the

agency must take into consideration (1) whether the four essential habitat components (forage,

water, cover and space) are present in sufficient amounts to sustain healthy [wild horse] populations

and healthy rangelands over the long-term; (2) the amount of sustainable forage available for wild

horse use; and (3) whether or not the projected [wild horse] herd size is sufficient to maintain

genetically diverse [wild horse] populations (i.e. avoid inbreeding depression. Id. at 67 (emphasis

added); see also id. at 21-22 (stressing the importance of maintaining genetic diversity in each of

the herds).

B. The National Environmental Policy Act

The National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq., is the nations

basic national charter for the protection of the environment. 40 C.F.R. 1500.1. It provides that,

for all major Federal actions significantly affecting the quality of the human environment, federal

agencies shall prepare a detailed statement, called an Environmental Impact Statement (EIS).

42 U.S.C. 4332(C). The EIS must consider (1) the environmental impact of the proposed action;

(2) any adverse environmental effects which cannot be avoided; (3) alternatives to the proposed

action; (4) the relationship between local short-term use of mans environment and the maintenance

of long-term productivity; and (5) any irreversible and irretrievable commitment of resources

involved in the proposal. Id. at 4332(c)(I)-(v).

The Council on Environmental Quality (CEQ) an agency within the Executive Office of

the President has promulgated regulations implementing NEPAs requirements that are binding


7/31/2019 TRO BRIEF

12/41

-6-

on all Federal agencies. 40 C.F.R. 1500.3. Those regulations provide that, where the agency has

not determined whether an EIS is required, it must generally prepare an Environmental Assessment

(EA) to determine whether the environmental effects of its proposed action are significant,

thereby requiring preparation of an EIS. Id. 1501.4(b). The EA must analyze both direct impacts

of the proposed action, i.e., those that result immediately from the proposed management action, as

well as the indirect impacts, which are those caused by the action later in time but still reasonably

foreseeable. Id. 1508.8(a)-(b).

The CEQ regulations further provide that NEPA procedures must ensure that environmental

information is available to public officials and citizens before decisions are made and before actions

are taken. 40 C.F.R. 1500.1(b) (emphasis added). Indeed, recognizing that public scrutiny [is]

essential to implementing NEPA, id., the regulations provide that Federal agencies shall to the

fullest extent possible . . . encourage and facilitate public involvement in decisions which affect the

quality of the human environment. Id. 1500.2(d) (emphasis added).

In determining whether a proposed action may have a significant impact on the environment

and hence require the preparation of an EIS the agency is to consider a list of enumerated factors,

including the degree to which the effects on the environment are likely to be highly controversial;

the degree to which the possible effects are highly uncertain or involve unique or unknown risks;

the degree to which the action may establish a precedent for future actions with significant effects;

the degree to which the action may cause loss or destruction of significant scientific, cultural, or

historical resources; and whether the action threatens a violation of federal law. 40 C.F.R.

1508.27(b). Further, [b]oth short- and long-term effects are relevant to the significance analysis,

id. 1508.27(a), as are [i]mpacts that may be both beneficial and adverse. Id. at 1508.27(b)(1)


7/31/2019 TRO BRIEF

13/41

-7-

(A significant effect may exist even if the Federal agency believes that on balance the effect will be

beneficial). The presence of any one of these facts should result in an agency decision to prepare

an EIS. Humane Socy of the U.S. v. Johanns, 520 F. Supp.2d 8, 20 (D.D.C. 2007), quoting Fund

for Animals v. Norton, 281 F. Supp. 2d 209, 218 (D.D.C. 2003) (courts have found that the presence

of one or more of [the CEQ significance] factors should result in an agency decision to prepare an

EIS) (other citations omitted).

When an agency determines that an EIS is not required, it issues a Finding of No Significant

Impact (FONSI), which must explain why the agencys chosen action will not have a significant

effect on the environment. 40 C.F.R. 1508.13.

II. The BLMs Decision At Issue In This Case

A. The BLMs Preliminary EA

In April 2011, the BLMs Rock Springs Wyoming Field Office issued a preliminary EA on

its proposed action to remove excess horses from the White Mountain and Little Colorado HMAs in

Wyoming, which are geographically adjacent to each other. See BLM EA for the White Mountain

& Little Colorado HMAs Wild Horse Gather (April 2011) (Preliminary EA), Pl. Ex. B; see also

id. at 2 (Map of the Affected Area). The BLM stated that this action was needed to remove excess

animals in order to achieve a thriving natural ecological balance between wild horse populations,

wildlife, livestock, vegetation, and water resources and to protect the range from deterioration, and

to assure that wild horses are managed at the minimum feasible level of management. Id. at 4. The

two HMAs comprise over a million acres, including 726,000 acres of public lands managed by the

BLM. See id. at 1.

The BLM further explained that its proposed action was intended to be in conformance with


7/31/2019 TRO BRIEF

14/41

-8-

the Green River Resource Management Plan of 1997 (Green River RMP or RMP), id. at 5, which

in turn emphasizes that the BLMs management of wild horses in these areas must (1) protect,

maintain, and control viable healthy herds of wild horses while retaining their free-roaming nature;

(2) provide adequate habitat for free-roaming wild horses through management consistent with

principles of multiple use and environmental protection; (3) provide [the] opportunity for the public

to view wild horses. SeeGreen River RMP (1997), Pl. Ex. C at 23 (emphasis added).

The BLM stated that it had determined the number of wild horses in both the White Mountain

and Little Colorado HMAs was in excess of the AML established by the agency for the horses, and

that, accordingly, it proposed removing the excess animals to the low AML for each of these areas.

Preliminary EA at 1. The preliminary EA indicated that there were approximately 660 wild horses

in the White Mountain HMA and 310 wild horses in the Little Colorado HMA, id. at 3, and that these

numbers exceeded the low AMLs for these areas by an estimated 455 wild horses in the White

Mountain HMA and 241 wild horses in the Lower Colorado HMA. Id. at 4.

The BLM explained that its Proposed Action for dealing with these excess horses was

Alternative A, which involved the roundup of approximately 90 percent (or

about 873) of the wild horses in both HMAs, and permanent removal of 696 wild horses from the

range for shipment to short-term holding facilities and eventual disposition through adoption,

sale, or maintenance in government long-term holding facilities. Id. at 8. It further explained that

under this alternative, the projected wild horse populations remaining on the range following the

roundup would be 205 wild horses in the White Mountain HMA, which was the low AML for that

area. Id. This number would include 66 horses that would be left untouched and 139 horses that

would be returned after the round-up. Id. Of the 139 to be returned, 89 would be stallions and 50


7/31/2019 TRO BRIEF

15/41

2 See also BLM EA for High Rock Complex (June 2011), Pl. Ex. E at 129 (explaining

that PZP contraception is relatively inexpensive, meets BLM requirements for safety to mares

and the environment . . . [and] appears to be completely reversible) (emphasis added).

-9-

would be females vaccinated with a temporary, reversible fertility-control vaccine called Porcine

Zona Pellucida (PZP). Id.; see also Final EA, Pl. Ex. D, at 43 (explaining that the PZP is a short-

term birth control agent).2

As to the Little Colorado HMA, the BLM asserted that, after the proposed round-up 69 wild

horses would remain the low AML for that HMA which would include 38 animals that had been

rounded up and returned, including approximately 28 studs and 10 females treated with PZP.

Preliminary EA at 8. The BLM further explained that based on the number of wild horses left

untouched in the HMAs, plus the number that would be returned, the sex ratios for the remaining wild

populations in both HMAs would be 60 percent stallions to 40 percent mares, which, according to

the agency, would reduce reproduction in the HMAs over the long-term. Id. at 8.

The BLMs preliminary EA identified three alternatives in addition to the Proposed

Action: Alternative B, which was the same as Alternative A except that there would be no

fertility control of the mares that were returned to the HMAs; Alternative C, which was taking no

action at all; and Alternative D which was to remove 100 percent of the wild horses from both HMAs

and return only castrated males (called geldings) and spayed female horses to the range. Id. at 8-9.

Thus, as explained by the BLM, under Alternative D, [t]he populations in the White Mountain and

Little Colorado HMAs would be managed as non-reproducing herds. Id. at 9.

The BLM received massive public opposition to its proposal, see Comments of American

Wild Horse Preservation Campaign (AWHPC) (May 6, 2011), Pl. Ex. F, at 4 (citing 2,000

comments that the BLM Rock Springs field office received in opposition to the Proposed Action),


7/31/2019 TRO BRIEF

16/41

-10-

including detailed comments from plaintiffs AWHPC and Western Watersheds Project (WWP),

as well as the Wyoming Wild Horse Coalition, which noted that the BLM had failed to provide

adequate scientific justification or rationale for the proposed round-up, particularly when a much

greater threat to the thriving natural ecological balance of these public lands is posed by cattle

grazing and yet the agency authorizes more than ten times more forage for thousands of livestock

than for wild horses in these HMAs. AWHPC Comments at 1-2. AWHPC further asserted that

[a]n EIS is needed to adequately assess the significant and negative impacts that the Proposed

Action will have on the affected regions; on wildlife and the natural environment, on the wild horses

that inhabit this public lands area; on those individuals with interests in the region, including

recreational users who enjoy watching and visiting the wild horses and burros . . . Id.

AWHPC also pointed out that the EA was devoid of monitoring data, including data that

support the claim that horses are overpopulating the range and/or causing damage to the range, as

well as monitoring data that clearly separate the impacts of livestock and wild horse use, id. at 4,

and AWHPC complained that the agency fail[ed] to consider a reasonable range of alternative

actions, including on-the-range management of horses with PZP fertility control (and no removals)

and increasing forage and water available to wild horses by decreasing livestock grazing. Id. at 4-5.

AWHPC further complained that the preliminary EA [f]ails to adequately analyze the impacts of

the proposed action on the genetic viability of these herds, and [f]ails to evaluate the impacts of the

proposed action on recreational users of this public lands area, particularly those who enjoy wild

horse viewing and photography. Id. at 5.

As to BLMs proposed Alternative D under which 100 percent of the herds would be non-

producing animals AWHPC complained that this was an extreme alternative that violated the


7/31/2019 TRO BRIEF

17/41

-11-

Wild Free-Roaming Horse and Burro Acts mandate that the wild and free-roaming behavior of

these species be preserved. Id. at 2; see also id. at 5 (complaining that although BLM dismissed

reasonable, cost-effective and humane methods for managing the horses, it included an extreme

and unacceptable measure that would violate the Wild Free-Roaming Horse and Burro Acts

mandate).

B. The BLMs Final EA, Decision and FONSI

In June 2011, the BLM issued a Final EA, which is barely distinguishable from the

preliminary EA, and in which the Proposed Action continued to be Alternative A. Pl. Ex. D.

Like the preliminary EA, the Final EA explained that the agency did population modeling

to identify if Alternatives A, B, and C could crash the population or cause extremely low

population numbers or growth rates, Final EA at 13, however, the agency did no such population

modeling for Alternative D. Id. at 77 (No population modeling was done for Alternative D because

it would be a non-reproducing herd.).

The Final EA also informed the public that, according to Dr. Gus Cothran, a geneticist with

whom the agency consulted, as long as the White Mountain population is maintained at a level

greater than 100 adult animals capable of reproduction, there should be little concern over the next

few years with respect to genetic diversity. Final EA at 13. As to the Little Colorado herd, Dr.

Cothran had concluded that there was a possibility that herd size had already been reduced which

could lead to future loss of variation for purposes of the genetic health of the herd. Id.

Nevertheless, the Final EA stated that it is not expected that genetic health would be

negatively impacted by the Proposed Action, id. at 15 a determination that was not made with

respect to Alternative D, which again, if implemented, would result in the eventual die-off of the


7/31/2019 TRO BRIEF

18/41

-12-

herds.

Despite the fact that both EAs identified Alternative A ad the Proposed Action, and that the

BLM did not analyze many of the environmental impacts of Alternative D or explain its obvious

conflict with the WFRHBA, much to the publics surprise, on June 13, 2011, Lance Porter, Director

of the BLMs Rock Springs Field Office issued a Decision Recordexplaining that he had decided

to choose Alternative D as the proposed action i.e., removal of 100 percent of the wild horses from

these areas and the return of only castrated males and spayed females. See BLM Decision Record

(June 13, 2011), Pl. Ex. G; FONSI, Pl. Ex. H. Thus, the agency explained, [t]he populations in the

White Mountain and Little Colorado HMAs would be managed as non-reproducing herds, and

would be supplemented with wild horses from other HMAs as needed. Decision Record at 2. Mr.

Porter further explained that Alternative D was chosen because it will achieve the established AMLs

in the White Mountain and Little Colorado HMAs and will prevent the necessity to gather more

frequently due to lower population increases over time. Id.

On the same day, Mr. Porter also issued a generic FONSI that had obviously been written for

all three of the action alternatives, which summarily stated that [b]ased on the information contained

in the attached environmental assessment . . . and all other information available to [him] he had

determined that the implementation of Alternative A, B, or D will not have significant

environmental impacts, and that, accordingly, an EIS was not required. See FONSI. Not specific

to Alternative D, the FONSI did not explain why this extremely new and drastic course of action did

not meet any of the significance criteria set forth in the CEQ regulations that govern when an EIS

is required. Id. Nor, again, did either the Decision Record or the FONSI include any population

modeling for Alternative D or explain how implementation of this action would be sufficient to


7/31/2019 TRO BRIEF

19/41

-13-

maintain genetically diverse [wild horse] populations. See BLM Handbook, Pl. Ex. A, at 67.

C. The BLMs Modified Decision Record

Less than ten days later, on June 22, 2011, Mr. Porter issued what he called a Modified

Decision Record, explaining that the agency had decided to implement a new course of action,

which he characterized as Alternative D, except that instead of rounding up 100 percent of the wild

horses from these HMAs and sterilizing all of the returned males and females, it would roundup 90

percent of the wild horses and return no females and only surgically castrated males. See BLM,

Modified Decision Record (June 22, 2011), Pl. Ex. I. Thus, Mr. Porter explained that the two HMAs

would now be managed as minimally-reproducing herds. Id. at 2. No new FONSI was issued with

this decision, nor did the BLM solicit comment on this new management action that was revealed for

the first time in the agencys Modified Decision Record.

Nevertheless, on June 23, 2011, plaintiff AWHPC sent a letter to BLM headquarters in

Washington complaining of the Field Offices unprecedented management strategy in violation of

federal law and its own land use planning rules, and seeking immediate intervention. AWHPC

explained that the newly constituted management action was incompatible with the Green River

Resource Management Plan (RMP), which requires the agency to protect, maintain, and control

viable, healthy herds of wild horses while retaining their free-roaming nature, because castrating all

of the males in these HMAs will mean that the herd is no longer viable and the free-roaming

behavior will be inalterably damaged. See Letter to Ed Roberson, Associate Director, BLM from

Suzanne Roy (June 23, 2011), Pl. Ex. J, at 1 (emphasis added). AWHPC also pointed out that the

BLM had recently asked the National Academy of Sciences to evaluate the feasibility and

implications on the non-reproducing herd option . . . yet is proceeding to implement [this] untested


7/31/2019 TRO BRIEF

20/41

-14-

strategy before the NAS has the opportunity to review and answer the questions posed to it by the

BLM, id. at 2, and that the Field Office had ignored over 10,000 public comments by dismissing

viable alternatives to the current Proposed Action. Id.

On June 24, 2011, Dr. Allen Rutberg, an expert on fertility control for ungulates and a former

member of the BLMs statutorily mandated Advisory Board, sent a letter to Mr. Porter registering

his strong objections to the agencys decision to manage the wild horses in these HMAs as either

non-reproducing or minimally reproducing herds. See Letter to Lance Porter from Allen

Rutberg (June 24, 2011), Pl. Ex. K, at 1. Dr. Rutberg explained that either of these approaches

violates the RMPs objective to protect, maintain, and control viable, healthy herds of wild horses

while retaining their free-roaming nature, because [t]he horse herds described in the decision

records are not viable, and are not meant to be viable. Id. (emphasis added). He further explained

that [b]y sharply reducing or eliminating the reproductive capacity of the herd, it becomes unable

to respond to environmental challenges or the loss of membership through attrition, and without

intervention will go extinct. Id. (emphasis added). Dr. Rutberg also explained that [g]enetically,

gelding . . . removes the animal from the gene pool as effectively as if he [] had been removed from

the range, thus further reducing the number of animals available to maintain genetic diversity and

accelerating inbreeding. Id. at 1-2 (emphasis added).

Dr. Rutberg further explained that there were more cost-effective ways to control fertility on

the range, including the use of PZP, and that, in contrast, [t]o the individual wild horses, their bands

[social groups], and their populations, the reproductive interventions described in Alternative D and

Modified Alternative D are . . . highly invasive, intrusive, and disruptive [,] [y]et they have not been

exposed to serious evaluation by either the agency or the public. Id. at 3 (emphasis added).


7/31/2019 TRO BRIEF

21/41

-15-

III. Proceedings To Date

This action was filed on July 25, 2011. On the same day, plaintiffs sent a letter to counsel for

defendants suggesting that particularly in view of the fact that the BLM itself has stated that it has

until December 2011 to accomplish the removal of excess wild horses from these areas, Final EA

at 5 the agency agree to postpone the August 17, 2011 round-up until the parties and the court have

an opportunity to have this case resolved on expedited motions for summary judgment. However,

the government declined this suggestion. Accordingly, plaintiffs have no choice but to ask the Court

for emergency injunctive relief.

ARGUMENT

A temporary restraining order or preliminary injunction is appropriate when plaintiffs

demonstrate that: (1) they have raised questions going to the merits that are so serious, substantial,

difficult and doubtful, as to make the fair ground for litigation and thus for more deliberative

investigation; (2) they will suffer irreparable injury absent the requested relief, and the balance of

hardships weighs in their favor; and (3) injunctive relief will serve the public interest. See, e.g.,

Wash. Metro. Area Transit Commn v. Holiday Tours, 559 F.2d 841, 842-44 (D.C. Cir. 1977)

(internal citations omitted). The test is not a wooden one, and relief may be afforded with either a

high probability of success and some injury, or vice versa. Cuomo v. United States Nuclear

Regulatory Commn, 772 F.2d 972, 974 (D.C. Cir. 1985). However, here, as demonstrated below,

all of these factors weigh strongly in favor of granting plaintiffs the requested relief.

I. PLAINTIFFS HAVE RAISED SERIOUS ISSUES ON THE MERITS.

Under the Administrative Procedure Act (APA), the Court shall . . . set aside an agencys

decision if it is arbitrary, capricious, or otherwise not in accordance with law or if it was adopted


7/31/2019 TRO BRIEF

22/41

-16-

without observance of procedure required by law. 5 U.S.C. 706(2)(A), (D). Although this

standard is deferential, [d]eference, of course, does not mean blind obedience. Garvey v. Natl

Transp. Safety Bd., 190 F.3d 571, 580 (D.C. Cir. 1999). Rather, the Court must perform a

searching and careful inquiry into the facts underlying the agencys decision in an effort to

ensure that the [agency] has examined the relevant data and has articulated an adequate explanation

for its action. Am. Farm Bureau Fedn v. EPA, 559 F.3d 512, 519 (D.C. Cir. 2009) (quoting Lead

Indus. Assn v. EPA, 647 F.2d 1130, 1145 (D.C. Cir. 1980) and City of Waukesha v. EPA, 320 F.3d

228, 248 (D.C. Cir. 2003)). In addition, the Court must consider whether the decision was based

on a consideration of the relevant factors,and an agency decision is arbitrary and capricious if the

agency has relied on factors which Congress has not intended it to consider, entirely failed to

consider an important aspect of the problem, [or] offered an explanation for its decision that runs

counter to the evidence before the agency . . . Motor Vehicle Mfrs. Assn v. State Farm Mutual

Auto. Ins. Co., 463 U.S. 29, 43 (1983). Here, as demonstrated below, the BLM has violated many

of these well established tenets.

A. The BLM Has Violated NEPA

The D.C. Circuit has adopted a four part test to guide judicial review of an agencys finding

that a proposed action will not significantly affect the environment and hence does not require the

preparation of an EIS as required by NEPA. Town of Cave Creek, Arizona v. FAA, 325 F.3d 320,

327 (D.C. Cir. 2003). The court must determine whether the agency (1) accurately identified the

relevant environmental concern; (2) has taken a hard look at the problem; (3) has made a

convincing case for its finding; and (4) if there was an impact of true significance, properly

concluded that changes or safeguards in project sufficiently reduce the impact to a minimum. Id.


7/31/2019 TRO BRIEF

23/41

3 Nor did the publics opportunity to comment on the original version of Alternative D

cure this problem. Alternative D as originally proposed was completely illegal on its face, since

it called for the sterilization of all of the wild horses in these two HMAs, both males and

females, and, accordingly, if implemented would completely eliminate the wild horses in these

areas in clear contravention of the WFRHBA. See Comments of AWPHC, Pl. Ex. F (explaining

that Alternative D would violate the WFRHBA because it would eliminate all of the wild free-

roaming horses). While the actual chosen management action, which would leave a small

percentage of wild horses intact in these areas, presents some of these same concerns, it also

presents additional environmental consequences, including the effect this particular action will

have on the genetic diversity of these herds one of many issues that the BLM simply failed to

-17-

Applying that test here, it is evident that the BLM has violated NEPA in several respects.

1. The BLM Failed To Provide The Public An Opportunity

To Comment On Its Chosen Management Action.

To begin with, the BLM obviously failed to take a hard look at the problem when it denied

the public any opportunity to comment on the chosen management action, which was not revealed

until June 22, 2011, when the agency issued its final decision on this matter. See Modified

Decision Record, supra at 13-14. Thus, the agency clearly violated its obligation to encourage and

facilitate public involvement in its decision to the fullest extent possible as required by the CEQ

regulations. 40 C.F.R. 1500.2(d) (emphasis added). Indeed, courts have readily held that agencies

fail to undertake the requisite hard look at a problem when the public is provided only a short time

to comment on a particular proposal. See, e.g., Fund for Animals v. Norton, 281 F. Supp.2d 209, 226

(D.D.C. 2003) (agency violated NEPA when it provided public only two weeks to comment on the

agencys proposed action); Save Our Ecosystems v. Clark, 747 F.2d 1240, 1247 (9th Cir. 1984)

(agency violated NEPA by providing only five days of comment before announcing its final

decision). Here, however, the public was given no opportunity to comment on the course of action

ultimately chosen by the agency. For this reason alone, plaintiffs have shown a likelihood of success

on the merits.3


7/31/2019 TRO BRIEF

24/41

analyze. See, e.g., Declarations of Dr. Lori Eggert, Pl. Ex. S; Dr. Allen Rutberg, Pl. Ex. L; see

also Anderson v. Evans, 314 F.3d 1006, 1014-15 (9th Cir. 2002) (noting with disapproval that

there was no opportunity for public comment on [] important amendments to the management

plan that was the subject of the EA).

-18-

2. The BLM Failed To Consider Several Major Environmental

Impacts Of Its Chosen Action.

The agency also failed to take the requisite hard look and to identif[y] the relevant areas

of environmental concern, Town of Cave Creek, supra, because it failed to consider at all several

obvious, clearly important, environmental impacts of its decision.

a) The BLM Failed To Consider The Impacts On

The Individual Horses and the Herds Social Structures.

The agency completely failed to examine the environmental impacts on both the individual

animals and the wild horse herds of turning large numbers of fully functioning wild stallions into

castrated geldings, and whether this approach was consistent with the agencys obligation under the

WFRHBA to protect these wild-free roaming horses as an integral part of the natural system

of the public lands, 16 U.S.C. 1331, and its obligations under its own regulations, to manage these

horses as self-sustaining populations of healthy animals, 43 C.F.R. 4700.0-6 (a) (emphasis

added), and with the goal of maintaining free-roaming behavior. Id. 4700.0-6(c) (emphasis

added).

As plaintiffs experts explain, these are serious environmental concerns. Dr. Rutberg explains

that returning large numbers of castrated males to these herds would create a semi-free- roaming

herd of domestic horses on public lands, rather than the true wild, free-roaming horses that are

required by the WFRHBA. Declaration of Dr. Allen Rutberg, Pl. Ex. L, 13. As Dr Rutberg further

explains, [t]he proposed herds will no longer be wild horses from a conservation, population


7/31/2019 TRO BRIEF

25/41

-19-

ecology, or behavioral viewpoint, because the geldings will simply not participate in [the]

fundamental processes of wild horse behavior, such as trying to protect mares from harassment by

other stallions to secure exclusive reproductive access to the mares for themselves. Id. 17

(emphasis added). He further explains that [t]he castrated males will also not retain their free-

roaming nature, because these horses will not be hormonally prompted to protect their mares,

compete with other stallions for reproductive mates, or cover as much geographical distance as they

would in their natural state. Id. 18. Thus, he explains, [t]he castrated horses will behave much

more like domesticate horses, with diminished aggressiveness and competitiveness. Id. (emphasis

added).

Other experts agree with this assessment:

See Declaration of Dr. Anne Perkins, Pl. Ex. M, at 5 (BLMs proposed management

approach will harm individual horses and completely alter the natural social structure of wild

and free roaming horses ); id. 6 ([t]here is no doubt that castrating stallions and releasing

them back into the herd as geldings (castrated males) will change the behavior of both the

individual horses and the herd itself . . . A castrated male will not exhibit the wild or free-

roaming nature that is evidence in fully-intact stallions) (emphasis added); id. 7

([c]astrated male horses will lose their masculine behavior . . . altering their natural behavior

and changing their social standing within the herd); 10 (If you castrate stallions andrelease them back into a wild herd, they will behave much like domesticated animals because

their physiology will be irreparably altered.);

Declaration of Dr. Bruck Nock, Pl. Ex. N, at 11 ([r]emoving a horses testes will have

irreversible effects on both the individual horse and the herd. A gelded horse does not behave

the same as a wild or free-roaming horse) (emphasis added); id. 13 (this unnatural

physiology will undoubtedly affect the horses ability to survive and compete in the wild);

18 (Returning castrated males to the White Mountain and Little Colorado Herd HMAs will

change the natural order within the herd and will disrupt the herds viability. There is no

reason to believe a herd of such an artificial composition will be stable or self-sustaining.)

(emphasis added);

Declaration of Dr. Jay Kirkpatrick, Pl. Ex. O, at 6 (explaining that BLMs chosen course

of action is extremely intrusive for the individual horses and not viable for the herds as a

whole) (emphasis added); id. 8 ([t]he very essence of the wild horse . . . is the social

organization and social behaviors. Geldings (castrated male horses) no longer exhibit the


7/31/2019 TRO BRIEF

26/41

-20-

natural behaviors of non-castrated stallions, and gelded stallions will not keep their bands

together, which is an integral part of a viable herd. These social dynamics were molded by

millions of years of evolution, and will be destroyed if the BLM returns castrated horses to

the HMAs) (emphasis added).

Declaration of Neda DeMayo, Pl. Ex. P, at 8 (Castrating stallions completely changestheir behaviors. In their natural state, stallions challenge each other, protect their mares,

procreate, educate other horses and are nomadic. They keep their bands moving forward,

driving from behind. The horse, which was originally a browser and developed into a grazer

over millions of years, needs to move to maintain a healthy bone density, digestion, and hoof.

Movement is critical for their health and well being. Movement is not only generated by their

need to travel from food to water. It is also driven, as exhibited in their fighting, playing,

courting, and education of their young. A healthy stallion is a very active animal. After

gelding, however, these fundamental behaviors are lost, or, at best, significantly decreased.)

(emphasis added).

In fact, the BLM itself has acknowledged in other recent EAs that castration would change

the individual behavior of each male horse. See BLM Beatys Butte EA (September 2009), Pl. Ex.

Q at 22; BLM South Steens EA (November 2009), Pl. Ex. R, at 32. Yet, it failed to take this rather

significant impact into account in reaching its decision in this case.

Moreover, because the agency did not consider the adverse impacts of its decision on the

wild and free-roaming nature of these horses, it also necessarily failed to take into consideration

the negative consequences its action will have on the publics ability to observe, photograph, and

otherwise enjoy these animals in their natural state one of the other overriding purposes of the

WFRHBA, and a stated objective of the agencys own RMP that the BLM claims governs its actions

here. See, e.g., 117 Cong. Rec. S 22669 (June 29, 1971) (identifying wild horses as a national

esthetic treasure); Green River RMP at 23 (requiring BLM to protect the wild horses in a manner

that will provide opportunity for the public to view wild horses) (emphasis added). Indeed, the

legislative history for the WFRHBA stresses Congress concern that these wild horses not be

managed in a way that would create zoo-like developments, H.R. Rep. No. 92-681 (1971) (Conf.


7/31/2019 TRO BRIEF

27/41

4 According to the BLM, 205 horses will remain in the White Mountain HMA, which

includes 139 of the castrated males that will be returned. This means that only the remaining

animals 66 will be capable of reproduction. As to the Little Colorado HMA, the BLM

expects 69 horses to remain, which includes 48 castrated males meaning there will only be 31

-21-

Rep.) at 2159 precisely what is at stake here by turning these wild free-roaming horses into

much more docile animals. See, e.g., Perkins Decl. 10 (castrated horses will behave much like

domesticated animals because their physiology will be irreparably altered).

b) The BLM Failed To Analyze The Impacts

Of Its Action On The Genetic Viability Of The Herds.

Incredibly, although the BLM acknowledges throughout its EA the importance of maintaining

the genetic diversity of these wild horse herds in order to meet its obligations under the WFRHBA,

see, e.g., Final EA at 13-15, 31, 60, the agency also failed to include any analysis at all of this

potential impact from its chosen course of action. Thus, as explained supra at 12, although the

agency conducted population modeling for the express purpose of determining whether

Alternatives A, B, and C could crash the population or cause extremely low population numbers

or growth rates, Final EA at 13, it did no such modeling for either Alternative D or its ultimate

management choice. As also explained, Dr. Cothran, the geneticist consulted by the agency, had

already concluded that the White Mountain population must be maintained at a level greater than

100 adult animals capable of reproduction to avoid concern about genetic diversity, and that, due

to its small population size, the Little Colorado herd is already at risk of a future loss of [genetic]

variation. See id. Yet, the agency included no analysis at all of the impact of its decision on this

extremely important environmental factor, even though its action will result in there being only about

66 horses capable of reproduction in the White Mountain HMA and approximately 31 such animals

remaining in the Little Colorado HMA.4


7/31/2019 TRO BRIEF

28/41

horses in this HMA that are capable of reproduction, for a total of 97 reproductive animals in

both HMAs combined. See Final EA at 3; Modified Decision Record.

-22-

Thus, as explained by geneticist Dr. Lori Eggert, see Pl. Ex. S, the BLMs action will result

in only about 100 reproductive individuals combined between the two populations, which takes

both herd populations below the minimum number that Gus Cothran felt was necessary to maintain

genetic diversity in the White Mountain population alone . . . Eggert Decl. 8-9 (emphasis added).

As correctly observed by Dr. Eggert, [i]t does not appear that the BLM has analyzed the impact of

its chosen course of action on the genetic viability of these herds, which . . . could be detrimental to

their ability to survive over the long term. Id. at 10 (emphasis added); see also Rutberg Decl.

28 ([t]he number projected to be left on the range under BLMs chosen action . . . is far less than the

designation outlined in the genetics analysis. Thus, according to the agencys own EA, this approach

will not ensure a self-sustaining population) (emphasis added); Perkins Decl. 10 (Geldings are

unable to contribute to the genetic diversity of the herd. Removing this natural mechanism will

diminish the bands role in maintaining a sustainable, healthy, and viable herd) (emphasis added);

Nock Decl. 17 (A castrated male should not be counted in the same manner as a stallion because

they cannot contribute to genetic diversity or sustainability of the herd).

c) The BLM Did Not Analyze Whether Its Chosen

Management Approach Would Actually Meet The

Agencys Stated Objectives.

Nor, for that matter, did BLM analyze at all whether its chosen action would actually

accomplish its own stated goal of remov[ing] excess animals in order to achieve a thriving natural

ecological balance between wild horse populations, wildlife, livestock, vegetation, and water

resources and to protect the range from deterioration associated with overpopulation of wild horses


7/31/2019 TRO BRIEF

29/41

-23-

as authorized by the WFRHBA. See Final EA at 4. Indeed, less than three years ago, the BLM

concluded that there was no benefit from addressing fertility control from the male side of the

equation because it seems unlikely this technique will significantly slow population growth rates.

See BLM Wild Horse and Burro Program, Alternative Management Options (October 2008), Pl. Ex.

T at 57 (emphasis added).

Further, as Dr. Rutberg observes, BLMs course of action is particularly ineffective to

accomplish the agencys stated objectives because the castrated males will continue to use limited

resources while contributing nothing to the demographic or genetic viability of the herd, Rutberg

Decl. 27 (emphasis added); see also Nock Decl. 15 (because geldings will not be able to roam as

far as stallions, [a] limited geographical home range is also likely to deplete local resources and

negatively impact the ecological system as a whole) (emphasis added). Indeed, the BLM itself has

recognized this rather salient point in at least one other recent EA. See South Steens EA at 32

(finding that geldings would have a negative impact on water quality and riparian areas because

geldings tend to congregate in large numbers than stallion/mare bands, and, accordingly, it could

be expected [that] gelding bands may create a situation in which more localized impacts may be seen

in riparian areas) (emphasis added).

Therefore, it could not be clearer that not only did the BLM fail to take the hard look at

environmental consequences that NEPA requires it took no look at all at these myriad adverse

environmental impacts of its chosen course of action. Accordingly, its decision simply cannot stand.

See Robertson v. Methow Valley Citizens, 490 U.S. 332, 351 (1989) (NEPAs hard look

requirement prohibits uninformed agency action); see also State Farm, 463 U.S. at 31, 43 (courts

should set aside agency action that was not based on a consideration of the relevant factors and that


7/31/2019 TRO BRIEF

30/41

-24-

runs counter to the evidence before the agency ) (emphasis added).

3. The BLM Failed To Prepare An EIS Even Though Many

Of The Significance Factors Are Present Here.

The BLM also has not explained and under the circumstances of this case simply cannot

justify its failure to prepare an EIS on this highly controversial, first of its kind, management

approach that will have major impacts on the ability of these herds to maintain their wild and free-

roaming status, as intended by the WFRHBA. As explained above, NEPA requires agencies to

prepare an EIS regarding all major Federal actions significantly affecting the environment, 42

U.S.C. 4332(C), and the CEQ implementing regulations set forth a number of criteria governing

when an action is to be considered significant for this purpose. 40 C.F.R. 1508.27. As also

explained, the presence of any one of these factors should normally result in an agency decision to

prepare an EIS. Andrus, 825 F.Supp. at 1495; see also Public Citizen v. Dept of Transp, 316 F.3d

1002, 1023 (9th Cir. 2003) (If [the agencys] action is environmentally significant according to

any of these criteria, then [the agency] erred in failing to prepare an EIS).

Further, to demonstrate that an EIS is required, a plaintiff need not demonstrate that

significant effects will occur. Anderson v. Evans, 314 F.3d at 1017 (emphasis in original). Rather,

it is enough for the plaintiff to raise substantial questions whether [an action] may have a significant

effect on the environment. Blue Mnt. Biodiversity Project v. Blackwood, 161 F.3d 1208, 1212 (9th

Cir. 1998) (other citations omitted). Here, given all of the circumstances of this case, there can be

no legitimate doubt that, at the very least, there is certainly a substantial question regarding many

of the CEQ significancefactors. Accordingly, the BLM was required to prepare an EIS on the

extreme management approach that it has chosen.

First, in light of the statements from the many experts quoted above, there can be no question


7/31/2019 TRO BRIEF

31/41

-25-

that the BLMs management plan to return a large number of geldings to these wild horse herds

may cause loss or destruction of significant scientific, cultural, or historical resources, 40 C.F.R.

1508.27(b) i.e., the very wild and free-roaming horses that Congress has declared are living

symbols of the historic and pioneer spirit of the West, that are to be considered an integral part of

the natural system of the public lands. 16 U.S.C. 1331; see also Colorado Wild Horse and Burro

Coal. v. Salazar, 639 F. Supp. 2d 87, 96 (D.D.C. 2009) (recognizing that Congress made BLM the

custodian of these animals on behalf of the public).

Second, in light of the publics opposition to this management approach and the experts

consistent concerns about the dire environmental impacts it may have on the viability of the

individual horses as well as their herds, there can also be no doubt that the environmental effects of

the BLMs action are also highly controversial. 40 C.F.R. 1508.27(b); see also Atlantic (July 28,

2011, Pl. Ex. U (describing the public controversy over this particular decision by the BLM).

Indeed, it is well settled that the requisite controversy under this factor includes not only public

opposition to the proposal, but whether substantial questions are raised as to whether a project . .

. may cause significant degradation of the environment. Anderson, 314 F.3d at 1018 (additional

citations omitted). Here, such substantial questions are easily demonstrated by the many expert

declarations plaintiffs have submitted, including from the very qualified scientists in the field of

biology and ecology which the statute requires the BLM to consult about these matters. See 16

U.S.C. 1333(a). Indeed, the BLMs own recent request for research proposals concerning a study

of the science, methodology, and technical decision-making approaches of the Wild Horse and Burro

Program highlights the controversial nature of these issues. See BLM Wild Horse and Burro Study,

Presolicitation Notice (Feb. 7, 2011), Pl. Ex. V, at 2 (noting that the success of any [management]


7/31/2019 TRO BRIEF

32/41

-26-

strategy BLM develops hinges on our ability to bridge the many divergent and conflicting

perspectives about how the Wild Horse and Burro Program should be managed in the West)

(emphasis added).

Third, for similar reasons, the BLMs proposed action also involves possible effects that

are highly uncertain or involve unique or unknown risks. 40 C.F.R. 1508.27(b). Indeed, the

agency itself has admitted on several recent occasions that it has no idea whether gelding wild horses

is an effective management tool consistent with the purposes of the WFRHBA. See, e.g., BLM

Handbook (June 2010), Pl. Ex. A, at 26 (noting that more information is needed to determine

whether bachelor stallions or geldings interfere with breeding harems, and whether there is increased

competition for forage or water, and to determine if the bachelor geldings form bands or intermix

with the breeding population, and whether sex ratio adjustment is an effective population

management technique . . .); Beatys Butte EA, Pl. Ex. Q, at 21 (stating that it is unknown what

percentage of gelding dominant studs would be necessary to accomplish a reduction in

population growth of a herd); South Steens EA, Pl. Ex. R, at 32 (same). Plaintiffs experts agree that

there is substantial uncertainty about these issues. See, e.g. Rutberg Decl. 23 (the environmental

impacts of this approach are completely uncertain at this juncture); id. 25 ([n]o population

modeling was done for the chosen action and hence the BLM has no idea how it will impact these

populations of wild horses); Perkins Decl. 14 ([t]he environmental and ecological consequences

of this management approach have not been considered). This is precisely the kind of uncertainty

about environmental impacts that require preparation of an EIS. See Fund for Animals v. Norton,

281 F. Supp. 2d at 234 (uncertainty as to the impact of a proposed action on a local population of

a species, even where all parties acknowledge that the action will have little or no effect on broader


7/31/2019 TRO BRIEF

33/41

-27-

populations, is a basis for finding that there will be a significant impact and setting aside as

FONSI), quoting Anderson, 314 F.3d at 1018-21 (emphasis added).

Fourth, there can be no doubt that the agencys decision here may establish a precedent for

future actions with significant effects, since, as the agencys own public affairs specialist just

publicly admitted, this roundup would be the first time the BLM has castrated stallions before

releasing them back into the wild, see Associate Press (July 26, 2011), Pl. Ex.W, at 2 (emphasis

added), and the agency has several similar proposed actions waiting in the wings. See, e.g., BLM

EA for Great Divide Basin HMA Wild Horse Gather (May 2011) at 8 (EA completed and pending

final decision for action involving considering castration and return of hundreds of wild horses to

create a non-producing herd); BLM Tri-State Calico Complex EA (Fall/Winter 2011) (final EA

pending for proposed action that includes the possible castration and return of 181 wild horses); BLM

Preliminary EA Red Desert Complex HMAs (June 2011) (final EA pending that includes as

alternative castration and return of wild horses).

Finally, because the BLMs action here is completely at odds with its obligations under the

WFRHBA to protect these wild horses, to preserve them as an integral part of the natural system

of the public lands, to manage them in a manner that is designed to achieve and maintain a thriving

natural ecological balance on the public lands, and to employ management activities at the minimal

feasible level, 16 U.S.C. 1533, it also necessarily threatens a violation of federal law yet

another of the significance criteria. 40 C.F.R. 1508.27(b).

Therefore, because at least five of the significance factors are present here, and particularly

because the BLMs chosen management approach represents a radical departure from the way it has

dealt with these issues in the past, it should be axiomatic that the BLM is required to prepare an EIS


7/31/2019 TRO BRIEF

34/41

5 In addition, because the BLM failed even to explain to the public why its selected

action does not implicate any of these significance factors, its decision is also unlawful. See,

e.g., Fund for Animals v, Norton, 281 F. Supp. 2d at 235 (noting that plaintiffs demonstrate a

substantial likelihood of success on the merits when the agency has failed to make a

convincing case for its finding of no significant impact because it . . . has failed to consider some

of the relevant factors under the CEQ regulations) (emphasis added) (citation omitted). Indeed,

the BLM did not even issue a FONSI with respect to the actual action it chose.

-28-

before proceeding with this action. See Humane Socy of the U.S. v. Johanns, 520 F. Supp. 2d at 20;

Fund for Animals v. Norton, 281 F. Supp. 2d at 218.5

B. The BLM Has Also Violated Its Obligations Under The WFRHBA.

For all of the same reasons, plaintiffs can amply demonstrate that the BLM has also violated

its duties under the WFRHBA and failed to consider several obvious relevant factors as required

by the APA, State Farm, 463 U.S. at 31, including the failure to consider the impacts of its decision

on the wild and free-roaming nature of the horses it is charged with protecting; its failure to

consider the impact of its decision on the genetic integrity of these herds and their ability to maintain

self-sustaining populations as required by the BLMs own regulations; and the agencys failure to

explain to the public how this management approach is consistent with these obligations, as well as

the statutes command that [a]ll management activities employed by the agency shall be at the

minimal feasible level, particularly when there are far less intrusive ways to control the populations

of these herds. See, e.g., Rutberg Decl. 22 (explaining that the use of PZP to control the fertility

of mares is reversible, has no serious adverse health effects, has no major disruptive behavioral

effects, preserves genetic viability better than management by gather and removal, [] is cost

effective, and has also been proven to be effective in managing several populations of wild horse

on public lands) (emphasis added); id. 23 (the reproductive interventions entailed with the newly

designed approach adopted by the BLM are, by contrast with PZP, highly invasive, intrusive, and


7/31/2019 TRO BRIEF

35/41

-29-

disruptiveand the environmental impacts of this approach are completely uncertain at this

juncture) (emphasis added); see also Perkins Decl. 13 (Reversible fertility control is currently the

best method for maintaining natural herd structure while responsibly managing populations of wild

horses).

Accordingly, for this reason also, plaintiffs have made a strong showing of their likelihood

of success on the merits in this case. See also American Horse Protection Assoc. v. Watt, 694 F. 2d

1310, 1319 (D.C. Cir. 1982) (finding that the BLMs decisions under the WFRHBA may be

overturned if [the] action is arbitrary, and instructing the district court to determine whether in light

of the goals of the Act . . . the Agencys current plan to reduce the size of the wild horse herd . . . is

rationally grounded).

II. ALL OF THE EQUITIES WEIGH IN FAVOR OF GRANTING

THE REQUESTED RELIEF.

Where, as here, plaintiffs have shown a probable success on the merits, they need only

demonstrate the possibility of irreparable injury in order to obtain preliminary injunctive relief.

See Holiday Tours, 559 F.2d at 841 (other citations omitted). Nonetheless, because the BLM is

preparing to take actions that the agency itself concedes are both irreversible, see Beatys Butte

EA, at 21, and will also change the individual behavior of 90 percent of the male horses that will

remain in these two HMAs, id., it is evident that the plaintiffs will in fact suffer irreparable harm

unless the Court issues temporary and preliminary relief to maintain the status quo until the Court

has an opportunity to resolve this case on the merits.

Thus, it is well recognized that a plaintiffs diminished opportunity to observe and appreciate

wildlife constitutes a cognizable injury. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-

62 (1992); Japan Whaling Assoc. v. Am. Cetacean Socy, 478 U.S. 221, 230 n.4 (1986). Indeed, this


7/31/2019 TRO BRIEF

36/41

6 One of Ms. Walkers photographs of a stallion taken in the White Mountain HMA is

attached as Attachment A. See Walker Decl. 3 (this photograph is one of her better-known

fine art prints).

-30-

case involves a statute whose overriding objective is to ensure the protection of the publics ability

to enjoy wild and free-roaming horses on the lands where they have lived for many years, see

supra at 23 - 24 an objective with which the BLM admits it must comply. See Final EA at 4.

Therefore, because, as one expert explains, these castrated stallions that are released back into the

wild herd will behave much like domesticated animals because their physiology will be irreparably

harmed, Perkins Decl. at 10 (emphasis added), the plaintiffs and their members who enjoy

viewing, photographing, and otherwise appreciating the wild and free-roaming nature of these

wild horses, will be irreparably harmed should the BLM be able to carry out its new management

approach as currently scheduled. See Amoco Prod. Co. v. Village of Gambrell, 480 U.S. 531, 545

(1987) (Environmental injury, by its nature, can seldom be adequately remedied absent the issuance

of an injunction); Animal Legal Def. Fund v. Glickman, 154 F.3d 426, 438 (D.C. Cir. 1998) (en banc)

(individuals have protectable interests in federal activities that permit the inhumane treatment of

animals they enjoy observing); see also H.Rep. No. 92-681 at 2159 (Conf. Rep.), supra (making clear

Congress intent that the wild horses not be managed in a way that would create zoo-like

conditions for the viewing public).

Plaintiff Carol Walker is a photographer with a professional and personal interest in the

Little Colorado and White Mountain herds, who make[s] a living photographing the horses natural

behaviors, and has published a book of her wild horse photography. See Declaration of Carol

Walker, Pl. Ex. X, at 1.6 Ms. Walker explains that she has visited these horses several times over

the years and has found that the best opportunities for photographing the horses occur when the


7/31/2019 TRO BRIEF

37/41

7 Photographs taken in these HMAs of stallions engaging in wild behaviors, such as

fighting and sparring with each other i.e., the kinds of behavior that will be greatly diminished

under the BLMs plan are attached as Attachments B-D.

-31-

stallions are sparring, fighting, and running, id. 3 behaviors that the experts explain the castrated

horses will no longer exhibit. See supra at 20-21. Thus, Ms. Walker explains, she has an aesthetic,

occupational, and recreational interest in viewing these wild horses engaging in wild behaviors, id.

4, and that if the BLM is allowed to carry out its proposed action, her ability to photograph family

bands, stallions sparring, and horses engaging in other natural wild behaviors will so greatly impair

[her] enjoyment of these animals and the aesthetic value of [her] photography of them that [she] will

likely not go back to this area. Id. 7 (emphasis added).7

Plaintiff Donna Duckworth recounts that she and her husband moved to their present location

in Wyoming to view and photograph the wild horses that roam here, that she visits both the White

Mountain and Little Colorado HMAs on a regular basis to photograph the horses, and that she has

come to these areas so often that [she] now recognize[s] individual horses and their family groups,

and can accurately predict where the horses will be found based on the weather and the time of the

day. Declaration of Donna Duckworth, Pl. Ex. Y, 1-3. Ms. Duckworth further describes her

great aesthetic enjoyment in viewing the wild horses engaging in social behaviors in these HMAs,

and explains that [t]he BLMs decision to round up large numbers of horses from these herds and

return only geldings harms [those] aesthetic interests, because this may alter the horses behavior,

change their social dynamics, and harm the integrity of the herd. Id. at 4, 9 (emphasis added).

Thus, Ms. Duckworth explains, her experience in observing, photographing, and otherwise enjoying

these wild horses will be dramatically diminished if BLM is allowed to proceed with its roundup,

because the resulting horses may not, in fact, be truly wild at all if the population is comprised


7/31/2019 TRO BRIEF

38/41

8 For the same reasons, the plaintiffs can also demonstrate adequate Article III standing in

this case i.e., they will suffer undeniable aesthetic injuries caused by BLMs actions and likely

to be redressed if those actions are enjoined. See Defenders of Wildlife v. Lujan, 504 U.S. 560-

61.

-32-

primarily of geldings. Id. 10 (emphasis added).

Jonathan Ratner, a member of Plaintiff Western Watersheds Project and its Wyoming

Director, likewise explains that he has visited the White Mountain and Little Colorado HMAs

dozens of times over the years, and that he enjoys viewing and photographing the wild horses.

Declaration of Jonathan Ratner, Pl. Ex. Z, 8. Mr. Ratner further explains that [t]he BLMs

decision to round up large numbers of horses from these herds and return only castrated males

(geldings) harms [his] aesthetic, recreational, and scientific interests in the wild horses by

manipulating and degrading horses, and because the BLMs action may also cause the herd[s] to

decline, eventually eliminating horses in this location a concern that is heightened by the fact that

BLM did no population modeling for its chosen course of action. Id. 18.

All of these declarants have amply demonstrated that they will suffer irreparable harm to their

aesthetic, professional, and recreational interests if the BLM is allowed to go forward with its

precedent-setting management approach.8 See Habitat for Horses v. Salazar, 745 F. Supp. 2d 438,

448 (S.D.N.Y. 2010) (court found irreparable injury where all the horses in a herd would be removed

because plaintiffs regularly traveled to and experienced the wild horses of the herd, despite BLMs

argument that hundreds of wild horses would remain on the adjacent tract of land in a different herd);

see also Fund for Animals v. Norton, 374 F. Supp. 2d 91, (D.D.C. 2005) (plaintiffs suffer irreparable

harm when they have fewer opportunities to view, interact with, study and appreciate animals they

enjoy), affd 472 F.3d 872 (D.C. Cir. 2006).


7/31/2019 TRO BRIEF

39/41

-33-

In addition, as plaintiffs have demonstrated, supra at 2-3, the BLM has flagrantly violated the

requirements of NEPA, and [w]hen a procedural violation of NEPA is combined with a showing of

environmental or aesthetic injury as has occurred here courts have not hesitated to find a

likelihood of irreparable injury. Brady Campaign to Prevent Gun Violence v. Salazar, 612 F. Supp.

2d 1, 24 (D.D.C. 2009); see also Fund for Animals v. Norton, 281 F. Supp. 2d at 222 (noting that

when the procedural harm caused by a violation of NEPA is combined with the irreparable aesthetic

injuries alleged by plaintiffs, such procedural harm does bolster plaintiffs case for a preliminary

injunction).

On the other hand, the BLM cannot demonstrate that it will suffer any irreparable harm should

this particular round-up be delayed until this Court has an opportunity to resolve this case on the

merits. Indeed, according to its own EA, the BLM states that it has until December 2011 to conduct

this particular round-up, see Final EA at 5, and in the past the agency has insisted that the winter

months are the optimum time to conduct such activities. See, e.g., BLM Antelope Complex Capture

Plan (Nov. 2010), Pl. Ex. AA, at 40 ([w]inter is often the preferred time to gather horses)

(emphasis added); In Defense of Animals v. Salazar, 675 F. Supp. 2d 89, 97 (D.D.C. 2009) (the BLM

successfully defeated motion for preliminary injunction by arguing that winter is the best time to

gather horses in mountainous areas).

Nor can BLM legitimately complain that these horses need to be removed immediately in

order to protect the range from further deterioration when the BLM allows these same lands to be

used to a much greater extent by the private livestock industry, see AWHPC Comments, Pl. Ex. F

at 2, and, as also shown, supra at 23-24, BLMs proposed action may actually contribute to further

deterioration of these particular areas because geldings tend to congregate in large numbers than


7/31/2019 TRO BRIEF

40/41

-34-

stallion/mare bands, and, accordingly, it could be expected [that] gelding bands may create a

situation in which more localized impacts may be seen in riparian areas. South Steens EA at 32

(emphasis added).

Finally, because the BLM has committed numerous violations of both NEPA and the

WFRHBA here, the public interest will unquestionably be served by maintaining the status quo, since

the public interest has a general interest in the meticulous compliance with the law by public

officials. Fund for Animals v. Clark, 27 F. Supp. 2d 8, 15 (D.D.C. 1998) (additional citations

omitted); see also Patriot Inc. v. U.S. Dept of Housing and Urban Devt., 963 F. Supp. 1, 6 (D.D.C.

1997). Indeed, Congress has made clear that protection of these wild horses from capture, branding,

harassment, and death is a matter of great national importance, because these animals contribute

to the diversity of life forms within the Nation and enrich the lives of the American people. 16

U.S.C. 1331 (emphasis added). Accordingly, the public interest will be well served by preventing

the massive desecration of these animals by the BLM, at least until this Court has an opportunity to

consider the full merits of plaintiffs claims.


7/31/2019 TRO BRIEF

41/41

CONCLUSION

For all of these reasons, the plaintiffs respectfully request that the Court enter both a

temporary and preliminary injunction to prevent the BLM from taking any further actions to

conduct its planned round-up of wild horses from the White Mountain and Little Colorado

HMAs.

Respectfully submitted,

_/s/___________________________

Katherine A. Meyer

(D.C. Bar No. 244301)

Jessica Almy

(D.C. Bar No. 996921)

MEYER GLITZENSTEIN & CRYSTAL

1601 Connecticut Ave., N.W. Suite 700

Washington, D.C. 20009

(202) 588-5206

Counsel for Plaintiffs

Date: July 29, 2011


TRO BRIEF

Documents

Transcript of TRO BRIEF