Friends of Animals v. U.S. Bureau of Land Management ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
FRIENDS OF ANIMALS,
Plaintiff,
Civil Action No. 18-2029 (RDM)
v.
UNITED STATES BUREAU OF LAND
MANAGEMENT,
Defendant.
MEMORANDUM OPINION AND ORDER
The Wild Free-Roaming Horses and Burros Act (“WHA”), 16 U.S.C. § 1331 et seq., was
enacted in 1971 to protect dwindling equine populations on public lands. Since the law’s
passage, the numbers of wild horses and burros have rebounded, requiring the Bureau of Land
Management (“BLM” or the “Bureau”) to balance the animals’ conservation against other public
land uses. This balance requires the Bureau to manage herd size through a variety of means,
including, if necessary, gathering and removing horses to be adopted or killed. Friends of
Animals (“FOA”), an animal advocacy organization, challenges four herd management decisions
the Bureau made in 2017 and 2018 approving removals and other control measures. FOA moves
for summary judgment, Dkt. 37, arguing that the decisions violated the WHA and the National
Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq. The Bureau opposes FOA’s
motion, Dkt. 40, and cross-moves for summary judgment, Dkt. 39.
For the reasons explained below, the Court will deny both motions for summary
judgment without prejudice because genuine issues of material facts remain as to whether this
case presents a live controversy ripe for resolution.
I. BACKGROUND
A. Statutory and Factual Background
1. Wild Free-Roaming Horses and Burros Act
In 1971, “few remaining wild free-roaming horses and burros” existed in the United
States. H.R. Rep. No. 92-681, at 7 (1971). Although these animals were neither the first nor the
last to face “depredation” in the American wilds, they awakened a special solicitude on the part
of Congress, id., which deemed them “living symbols of the historic and pioneer spirit of the
West,” 16 U.S.C. § 1331. Against this backdrop, Congress enacted the WHA “to [e]nsure the
[creatures’] preservation and protection . . . in order to enhance and enrich the dreams and
enjoyment of future generations of Americans.” H.R. Rep. No. 92-681, at 7 (1971).
By 1978, Congress determined that Americans’ dreams and enjoyment had been
enhanced a bit too much, to the tune of “20,000–30,000 excess animals.” H.R. Rep. No. 95-
1122, at 21 (1978). Overgrazing had ravaged public lands, and the excess horses and burros, in
Congress’s estimation, threatened other “wildlife, livestock, the improvement of range
conditions, and ultimately [the horses’ and burros’] own survival.” Id. at 21; see also id. at 10.
Congress therefore amended the WHA. See Public Grazing Land Improvement Act of 1978,
H.R. 10587, 95th Cong. (1978).
The amended WHA retains many of the original law’s protective provisions. The statute
still requires the Bureau “to protect and manage wild free-roaming horses and burros as
components of the public lands” “in a manner that is designed to achieve and maintain a thriving
natural ecological balance” through management “at the minimal feasible level” after
“consider[ing] the recommendations of qualified scientists in the field of biology and ecology,
some of whom shall be independent of both [f]ederal and [s]tate agencies.” 16 U.S.C.
2
§ 1333(a).1 But Congress also made important changes, some relevant to this case. In particular,
the amended WHA requires the Bureau to “maintain a current inventory of wild free-roaming
horses and burros on given areas of the public lands” for the purpose of: (1) setting “appropriate
management levels [(“AMLs”)] of wild free-roaming horses and burros on these areas;” (2)
determining “whether and where an overpopulation exists and whether action should be taken to
remove excess animals;” and (3) deciding “whether [AMLs] 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). In reaching these determinations, the Bureau must consult
with the U.S. Fish and Wildlife Service, relevant state wildlife agencies, “such individuals
independent of [f]ederal and [s]tate government as have been recommended by the National
Academy of Sciences,” and other individuals with “scientific expertise and special knowledge of
wild horse and burro protection, wildlife management and animal husbandry as related to
rangeland management.” Id.
The statute further defines when and how the Bureau should remove excess wild horses
and burros in order to achieve AMLs:
Where the Secretary determines on the basis of (i) the current inventory of lands
within [its] jurisdiction; (ii) information contained in any land[-]use planning
completed pursuant to [the Federal Land Policy and Management Act of 1976];
(iii) information contained in court ordered environmental impact statements .
. . and (iv) such additional information as becomes available to [it] from time to
time, including that information developed in the research study mandated by
this section, or in the absence of the information contained in (i-iv) above on the
basis of all information currently available to him, 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.
1
The statute grants authority to the Secretary of the Department of the Interior and the Secretary
of Agriculture, 16 U.S.C. § 1332(a), but for simplicity’s sake, the Court refers throughout the
opinion to the Bureau, to which the pertinent authority has been delegated. See Fund for
Animals, Inc. v. BLM, 460 F.3d 13, 15 (D.C. Cir. 2006); see also 43 C.F.R. § 4710.3-1.
3
Id. § 1333(b)(2). The Bureau shall take the prescribed “action . . . 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.”
Id.
Finally, the statute prescribes in descending order of “priority” the relevant actions the
Bureau is required to take to restore the range: First, the Bureau “shall order old, sick, or lame
animals to be destroyed in the most humane manner possible.” Id. § 1333(b)(2)(A). Second, if
overpopulation still exists, the Bureau shall humanely capture and remove animals and maintain
them separately to be adopted by members of the public. Id. § 1333(b)(2)(B). Finally, if
overpopulation persists, the Bureau shall “destroy” the excess horses and burros “in the most
humane and cost[-]efficient manner possible.” Id. § 1333(b)(2)(C). The Bureau has
promulgated regulations to implement the WHA through the designation of “herd management
areas” (“HMAs”). 43 C.F.R. § 4710.3-1. To determine high-level goals and standards for
resource management of a region, the Bureau also establishes resource management plans
(“RMPs”)—that is, land[-]use plans that govern multiple HMAs. Fund for Animals, 460 F.3d at
15; see also 43 C.F.R. § 4710.1; Dkt. 46-3 at 320–21. The Bureau implements RMPs through
narrower activity plans called, in the case of wild horse management, “herd management area
plans” (“HMAPs”). 43 C.F.R. § 4710.3-1; see also Dkt. 46-3 at 322.
2. National Environmental Policy Act
NEPA requires federal agencies to take a “hard look” at the environmental consequences
of actions before acting. Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 374 (1989). The statute
does not impose substantive limits on agencies’ ultimate decisions, but rather establishes
procedural duties that serve “twin aims”: “First, [NEPA] ‘places upon an agency the obligation
4
to consider every significant aspect of the environmental impact of a proposed action;’ . . .
Second, it ensures that the agency will inform the public that it has indeed considered
environmental concerns in its decision[-]making process.” Balt. Gas & Elec. Co. v. Nat. Res.
Def. Council, Inc., 462 U.S. 87, 97 (1983) (quoting Vermont Yankee Nuclear Power Corp. v.
Nat. Res. Def. Council, Inc., 435 U.S. 519, 553 (1978)). For a “major Federal action[]
significantly affecting the quality of the human environment,” NEPA requires the lead agency to
prepare “a detailed statement” that describes the project’s environmental impact and considers
alternatives. 42 U.S.C. § 4332(2)(C).
To determine whether a proposed action will significantly affect the environment, the
governing regulations require agencies to prepare an environmental assessment (“EA”), a
“concise public document” that considers the action’s environmental impacts as well as
alternatives to the proposed action. 40 C.F.R. §§ 1508.9, 1501.4(b)(2).2 If the EA reveals that
the proposed action will significantly affect the environment, then the agency must prepare a
more comprehensive environmental impact statement (“EIS”). 43 C.F.R. §§ 1508.9, 1508.11.
Alternatively, if the EA shows that environmental impacts will not be significant, then the
agency need prepare only a “Finding of No Significant Impact” (“FONSI”) “briefly presenting
the reasons why an action . . . will not have a significant effect on the human environment.”
Id. § 1508.13. Regulations also require the agency to “[e]ncourage and facilitate public
involvement in decisions.” Id. § 1500.2.
2
The Council on Environmental Quality updated the regulations implementing NEPA on July
16, 2020. See Update to the Regulations Implementing the Procedural Provisions of the National
Environmental Policy Act, 85 Fed. Reg. 43,304 (July 16, 2020). In this opinion, citations to
regulations reflect the earlier regulatory language in place at the time the Bureau made the
decisions challenged in this lawsuit.
5
As outlined in the Bureau’s Wild Horses and Burros Management Handbook, HMAPs
require either an EA or EIS pursuant to NEPA. Dkt. 46 at 305–09. The handbook provides that
the AML for each HMA “shall be expressed as a population range within which” wild horses and
burros “can be managed for the long term.” Id. at 285. “The AML upper limit shall be
established as the maximum number of” horses and burros that “results in a [thriving natural
ecological balance] and avoids deterioration of the range,” and the “lower limit shall normally be
established at a number that allows the population to grow . . . to the upper limit over a 4-5 year
period, without any interim gathers to remove excess” wild horses and burros, although “[s]ome
HMAs may require more frequent removals to maintain population size within AML.” Id.Before the Bureau removes excess animals to achieve the AML, it must create a “[g]ather
[p]lan[]” that includes a “site-specific environmental analysis” that meets NEPA requirements.
Id. at 316. The “authorized [BLM] officer” is required to “provide the public 30 days to review
and comment on the NEPA document, typically an [e]nvironmental [a]ssessment that documents
and analyzes the environmental effects of [] BLM’s [p]roposed [a]ction.” Id. at 317. Then, the
Bureau must issue a final gather decision including a “decision record” summarizing and
responding to substantive comments and setting “gather decisions effective upon a date
established in the decision.” Id. at 316–18. “Unless an emergency situation exists,
gather/removal decisions shall be issued 31–76 days prior to the proposed gather start to provide
an opportunity for administrative review of the . . . decision to be completed.” Id. at 316.
3. Factual Background
Beginning in 2017, the Bureau issued a series of herd management decisions that gave
rise to the instant suit. The four decisions apply to the Pine Nut Mountains HMA, Dkt. 46-3, the
Muddy Creek HMA, Dkt. 46-1, the Eagle Complex (an amalgam of HMAs), Dkt. 46, and the
6
Onaqui HMA, Dkt. 46-2, together covering more than one million acres in Utah and Nevada, as
well as thousands of horses. See Dkt. 46-3 at 86 (estimating Pine Nut Mountains HMA
population); Dkt. 46-1 at 97 (same for Muddy Creek HMA); Dkt. 46 at 34 (same for Eagle
Complex); Dkt. 46-2 at 281 (same for Onaqui HMA); Dkt. 17 at 13, 24, 32, 39 (2d Am. Compl.
¶¶ 53, 139, 205–06, 269) (describing acreage of each HMA).3 The timing of the relevant
decisions are as follows: On November 28, 2017, the Bureau released the Pine Nut Mountains
HMAP, decision record, final EA, and FONSI. Dkt. 37 at 19. On July 30, 2018, the Bureau
issued the decision record, final EA, and FONSI for the Muddy Creek HMA. Id. On August 27,
2018, the BLM published the decision record, final EA, and FONSI for the Eagle Complex. Id.Finally, on December 14, 2018, the Bureau released the decision record, final EA, and FONSI
for the Onaqui HMA. Id. at 11–12. The Court will refer to these decisions collectively as the
“Gather Decisions” or “Decisions.” The Decisions implement relevant portions of the 2001
Carson City Field Office Consolidated Resource Management Plan (applicable to the Pine Nut
Mountains HMA), id. at 18; the Price Field Office Record of Decision and RMP (applicable to
the Muddy Creek HMA), id. at 20–21; the Ely District Record of Decision and RMP and the
1983 Pinyon Management Framework Plan (applicable to the Eagle Complex), id. at 23; and the
aptly named 1990 Pony Express Record of Decision and RMP (applicable to the Onaqui HMA),
id. at 25.
The Gather Decisions share several relevant features. In all cases, the Bureau determined
that the number of horses on the range significantly exceeded the AML for the relevant HMA;
that this overpopulation was contributing to range deterioration; and that it was necessary to curb
3
Although the WHA regulates horses and burros, the challenged decisions appear to involve
only wild horses.
7
the herds’ sizes. Dkt. 46-3 at 16, 18, 20; Dkt. 46-1 at 97–98; Dkt. 46 at 33, 59; Dkt. 46-2 at 11,
31, 262. The Bureau published notices of the proposed action for each HMA or complex and
allowed time for public comment. See Dkt. 46-3 at 8; Dkt. 46-1 at 229; Dkt. 46 at 174; Dkt. 46-2
at 262. Substantively, the Decisions consist of three different actions. First, the Bureau
announced its plan to conduct an initial gather (or series of roundups) to remove horses and to
bring the populations down to the low end of the AML in each HMA or complex. Dkt. 46-3 at
24 (aiming to remove approximately 338 horses from within the Pine Nut HMA through an
initial gather to reach AML and to remove more than 200 outside the HMA); Dkt. 46-1 at 97,
106 (calling for the removal of 148 or 149 horses to reach AML in the Muddy Creek HMA);
Dkt. 46 at 33, 59–60 (aiming to remove 2,075 horses to reach AML in the Eagle Complex); Dkt.
46-2 at 281 (planning to remove approximately 465 horses from the Onaqui HMA). Second, the
Bureau indicated that it will make use of fertility controls, such as administering contraceptives
and adjusting sex ratios, to maintain AML. As part of this effort, the Bureau contemplates
conducting subsequent gathers after the initial gather to collect animals, administer fertility
controls, and release the animals back on the range. Dkt. 46-3 at 28–29; 46-1 at 106–07; Dkt. 46
at 61; Dkt. 46-2 at 281–82. Finally, the Bureau authorized future maintenance gathers to remove
horses from the range to maintain the AML. Dkt. 46-3 at 25, 109; Dkt. 46-1 at 106–07; Dkt. 46
at 61; Dkt. 46-2 at 281–82. The Gather Decisions authorize the contemplated activities for ten
years. Dkt. 46-3 at 15, 25; Dkt. 46-1 at 95; Dkt. 46 at 41; 46-2 at 10. None of the plans commit
to further NEPA analyses or opportunities for comment prior to conducting subsequent gathers.
Dkt. 37 at 20, 22, 24, 26. At oral argument, however, the Bureau represented that the public will
receive “notice of at least up to 30 days” before any future gathers but that “no additional
8
environmental analysis [would be] required,” nor further opportunity to comment afforded. Nov.
18, 2020 Hrg. Tr. (Rough at 51–54).
Both parties agree that the Bureau has completed the initial gathers in each of the four
HMAs. Dkt. 52 at 2 & nn.1–6 (providing the dates of each initial gather as well as links to BLM
websites). Of these initial gathers, the Muddy Creek gather apparently achieved its target of
reaching low AML. Compare Dkt. 46-1 at 97, 106 (setting a removal target of 149 horses to
reach AML in the Muddy Creek HMA), with BLM, 2018 Muddy Creek Wild Horse Gather,
https://www.blm.gov/programs/wild-horse-and-burro/herd-management-areas/gathers-and-
removals/utah/2018-muddy-creek-wild-horse-gather (last visited Jan. 19, 2021) (explaining that
cumulatively 153 animals had been gathered from the Muddy Creek HMA and four returned to
the range). The other initial gathers, however, did not collect enough horses to achieve the
targeted AML. Compare BLM, 2019 Pine Nut Mountains Wild Horse Gather,
https://www.blm.gov/programs/herd-management/gathers-and-removals/nevada/2019-Pine-Nut-
Mountains-Wild-Horse-Gather (last visited Jan. 19, 2021) (reporting 383 animals gathered from
within and surrounding the Pine Nut HMA), with Dkt. 46-3 at 24 (aiming to remove
approximately 338 horses from within the Pine Nut HMA and more than 200 from outside the
HMA); BLM, 2020 Eagle Complex Wild Horse Gather, https://www.blm.gov/programs/wild-
horse-and-burro/herd-management/gathers-and-removals/nevada/2020-eagle-complex-wild-
horse-gather (last visited Jan. 19, 2021) (reporting 1,716 animals gathered from the Eagle
Complex), with Dkt. 46 at 33, 59–60 (aiming to remove 2,075 horses to reach AML in the Eagle
Complex); BLM, 2019 Onaqui Wild Horse Gather, https://www.blm.gov/programs/wild-horse-
and-burro/gathers-and-removals/utah/2019-onaqui-wild-horse-gather (last visited Jan. 19, 2021)
(reporting 241 animals gathered from the Onaqui HMA), with Dkt. 46-2 at 281 (aiming to
9
remove 465 horses from the Onaqui HMA). All but the Muddy Creek initial gather, moreover,
began more than 76 days after the applicable HMA decision. Compare Dkt. 37 at 11 (providing
the dates of each HMA decision), with Dkt. 52 at 2 (providing the date of each initial gather).
Because the Decisions authorize further gathers over ten years, future gathers and removals
could continue for the better part of the upcoming decade.
B. Procedural Background
Plaintiff FOA, “a nonprofit, international animal advocacy organization,” Dkt. 17 at 4 (2d
Am. Compl. ¶ 13), filed this lawsuit on August 29, 2018, Dkt. 1. It alleges that the four Gather
Decisions violate the WHA (Count I) by departing from applicable land-use plans and eliding
necessary determinations prior to removal. Dkt. 17 at 50 (2d Am. Compl. ¶¶ 352–54). FOA
further contends that the Decisions violate the Administrative Procedure Act (“APA”), 5 U.S.C.
§ 706, (Count II) by departing from preexisting agency policy without explanation. Dkt. 17 at
50–51 (2d Am. Compl. ¶¶ 355–60). Finally, FOA maintains that the Decisions violate NEPA in
two ways: For each decision, the Bureau failed to prepare an EIS (Count III), and it failed to
scrutinize environmental impacts with the “hard look” that NEPA requires (Count IV). Id. at
51–52 (2d Am. Compl. ¶¶ 361–68). Because of these violations, FOA asserts that the Decisions
must be set aside pursuant to the APA, 5 U.S.C. § 706, as “arbitrary, capricious, an abuse of
discretion, and not in accordance with law or required procedure,” id. at 50–51 (2d Am.
Compl. ¶¶ 354, 360); see also id. at 51–52 (2d Am. Compl. ¶¶ 364, 368).
FOA moves for summary judgment, Dkt. 37, and the Bureau opposes FOA’s motion and
cross-moves for summary judgment, Dkt. 39; Dkt. 40. At the direction of the Court, the parties
provided a joint status report addressing whether the Bureau has completed the initial gathers and
10
whether any of FOA’s claims are now moot. Dkt. 52. The Court heard oral argument on
November 18, 2020.
II. ANALYSIS
FOA challenges the Gather Decisions on multiple grounds. But before considering any
of those contentions, the Court must determine whether FOA’s claims are justiciable as currently
framed. If the initial gathers have been completed and future gathers remain uncertain, then
mootness may block FOA’s challenge to the former, and a lack of ripeness may block its
challenge to the latter. “To prevail on a Federal Rule of Civil Procedure 56 motion for summary
judgment[,] as opposed to a motion to dismiss,” the moving party “must establish that there
exists no genuine issue of material fact as to justiciability . . . .” Dep’t of Com. v. U.S. House of
Representatives, 525 U.S. 316, 329 (1999); accord. Pub. Citizen, Inc. v. Trump, 361 F. Supp. 3d
60, 83 (D.D.C. 2019). A fact is “material” if it is capable of affecting the outcome of a dispute,
see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and a dispute is “genuine” if the
evidence is such that a reasonable factfinder—here, the Court—could find in favor of the
nonmoving party, see Scott. v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby, 477 U.S. at 248.
If the Court finds that a genuine issue of material fact exists as to justiciability, it must deny both
cross-motions for summary judgment because the Court cannot reach the merits of a case in
which justiciability remains substantially in doubt.
A. Mootness
“Under Article III of the Constitution,” federal courts “may only adjudicate actual,
ongoing controversies.” Honig v. Doe, 484 U.S. 305, 317 (1988). The required “case or
controversy,” moreover, “must remain ‘extant at all stages of review, not merely at the time the
complaint is filed.’” United States v. Juvenile Male, 564 U.S. 932, 936 (2011) (per curiam)
11
(quoting Arizonans for Off. Eng. v. Arizona, 520 U.S. 43, 67 (1997)). Accordingly, at each stage
of the litigation, the Court must assess whether the plaintiff has suffered or is likely to suffer “an
actual injury traceable to the defendant” that is “likely to be “redressed by a favorable judicial
decision.” Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990). “If events outrun the
controversy such that the [C]ourt can grant no meaningful relief, the case must be dismissed as
moot.” McBryde v. Comm. to Rev. Cir. Council Conduct & Disability Orders of the Jud. Conf.
of the U.S., 264 F.3d 52, 55 (D.C. Cir. 2001).
Here, the parties agree that the Bureau completed its initial gathers long ago and, indeed,
it completed most of those gathers months before the first summary judgment brief was filed in
this case. Dkt. 52 at 2 (listing dates of completion of initial gathers, ranging from September 18,
2018 to February 25, 2020). But because neither party addressed mootness in their briefs, the
Court issued an order on November 3, 2020, directing that the parties “file a joint status report
addressing (1) when the initial gathers in each of the relevant HMAs commenced, (2) when each
such initial gather was completed or is likely to be completed, and (3) whether any of Plaintiff’s
challenges to the initial (as opposed to any future) gathers is now moot.” Minute Order (Nov. 3,
2020). In response, the Bureau took the position that FOA’s challenge to the initial gathers is
moot, while FOA argued that the challenge remains justiciable. Dkt. 52.
Although “the party asserting mootness—here, the [Bureau]—generally bears the burden
of establishing that a case is moot in the first instance,” Cierco v. Lew, 190 F. Supp. 3d 16, 23
(D.D.C. 2016), the Court has an obligation to assess its jurisdiction—and thus to address the
question of mootness—sua sponte, id. (citing Mine Reclamation Corp. v. FERC, 30 F.3d 1519,
1522 (D.C. Cir. 1994)); see also Fort Bend County v. Davis, 139 S. Ct. 1843, 1849 (2019) (a
court “must consider” its subject-matter jurisdiction sua sponte “at any point in the litigation”)
12
(citation omitted). The Court cannot, in short, proceed to adjudicate a case on the merits in the
face of serious, unresolved questions about whether FOA’s claims are moot, regardless of which
party bears the burden of proof.
Under the present circumstances, the Court is left with substantial doubt about whether
FOA’s challenges to the initial gathers remain live. According to the parties’ joint status report,
the Muddy Creek HMA initial gather was completed over two years ago, on September 18,
2018; the Onqaui HMA and Pine Nut Mountains HMA initial gathers were completed about a
year after that, in September and October 2019, respectively; and the Eagle Complex initial
gather was completed on February 25, 2020, the day before the parties filed the joint appendix in
this case. Dkt. 52 at 2. Thus, to the extent FOA challenges the lawfulness of those gathers under
NEPA and the APA, the challenged conduct has already occurred. And, to the extent “[i]t is
‘impossible for the court to grant any effectual relief whatever’ with respect to the challenged
gathers,” FOA’s challenge is non-justiciable. Fund for Animals, 460 F.3d at 22 (quoting
Beethoven.com LLC v. Libr. of Cong., 394 F.3d 939, 950 (D.C. Cir. 2005)).
In opposing dismissal of those challenges on grounds of mootness, FOA makes several
arguments, none of which is persuasive on the current record. First, FOA argues that its
“interests and claims are not limited to any individual roundups that occur pursuant to th[e]
Decisions” but, rather, extend to the Bureau’s “plans to continue implementing the Decisions at
least through 2027.” Dkt. 52 at 5. That is true, but it is non-responsive to the contention that
FOA’s challenge to the completed gathers—as opposed to its challenge to future actions the
Bureau may take, which are addressed below—is moot. Second, FOA maintains that its
challenge to the completed gathers is not moot because the Court could order that the Bureau
return some or all of the gathered horses to the range. Id. at 7. At oral argument, however, FOA
13
acknowledged that it does not know whether the removed horses remain available to be returned
or whether, for example, they have already been adopted by members of the public. Nov. 18,
2020 Hrg. Tr. (Rough at 3). This fact-based uncertainty bears on whether the case is still live,
and thus constitutes a “genuine issue of material fact as to justiciability” that prevents the Court
from granting summary judgment to either party on the merits at this time. Dep’t of Commerce,
525 U.S. at 329. Although FOA alludes to exceptions to the mootness doctrine for (1)
controversies that are capable of repetition yet evade review, and (2) cases where the defendant
voluntarily ceases engaging in the challenged conduct, Dkt. 52 at 3, it does not develop either
contention in a manner sufficient to support justiciability; other than reciting the elements of
these exceptions, FOA fails to explain why either applies here.
The Bureau, for its part, disclaims any authority to return excess horses to the range, a
proposition that, if true, would moot any controversy with respect to the initial gathers,
regardless of the horses’ whereabouts. Id. at 9–10. Although the Bureau contends that it is
legally foreclosed from doing so, the Court is unpersuaded that a federal district court would lack
equitable authority under appropriate circumstances to remediate a violation of law by requiring
the return of horses that were recently gathered.4 For present purposes, it is enough to conclude
that the relevant legal arguments are undeveloped and the relevant factual record is nonexistent.
The Court will, accordingly, deny without prejudice both pending motions for summary
judgment with respect to the completed gathers.
4
Such a remedy does not become unavailable merely because FOA failed to identify this form
of relief in its complaint. A “final judgment should grant the relief to which each party is
entitled, even if the party has not demanded that relief in its pleadings.” Fed. R. Civ. P. 54(c).
14
B. Ripeness
While the completed initial gathers raise the specter of mootness, any future actions the
Bureau might take pursuant to the challenged Decisions raise questions of ripeness. “The
ripeness doctrine is ‘drawn both from Article III limitations on judicial power and from
prudential reasons for refusing to exercise jurisdiction.’” Nat’l Park Hosp. Ass’n v. Dep’t of
Interior, 538 U.S. 803, 808 (2003) (quoting Reno v. Cath. Soc. Servs., Inc., 509 U.S. 43, 57 n.18
(1993)). It “‘prevent[s] the courts, through avoidance of premature adjudication, from
entangling themselves in abstract disagreements over administrative policies, and also . . .
protect[s] . . . agencies from judicial interference until an administrative decision has been
formalized and its effects felt in a concrete way by the challenging parties.’” Id. at 807–08
(quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148–49 (1967)). When, as here, the parties do
not raise ripeness, the Court may consider the issue sua sponte. Id. at 808.
“The ripeness doctrine subsumes two inquiries: first, ‘the Article III requirement of
standing, which requires a [plaintiff] to allege inter alia an injury-in-fact that is ‘imminent’ or
‘certainly impending,’” Garcia v. Acosta, 393 F. Supp. 3d 93, 105 (D.D.C. 2019) (alteration in
original) (quoting Am. Petrol. Inst. v. EPA, 683 F.3d 382, 387 (D.C. Cir. 2012)), and second, two
prudential requirements, “‘the fitness of the issue for judicial decision and the hardship to the
parties of withholding court consideration,’” id. (quoting Abbott Labs., 387 U.S. at 149); see also
Nat’l Park Hosp. Ass’n, 538 U.S. at 808; Wyo. Outdoor Council v. U.S. Forest Serv., 165 F.3d
43, 48 (D.C. Cir. 1999) (quoting La. Env’t Action Network v. Browner, 87 F.3d 1379, 1381 (D.C.
Cir. 1996)).5
5
In Susan B. Anthony List v. Driehaus, the Supreme Court questioned whether prudential
ripeness factors can render a claim nonjusticiable if constitutional ripeness is satisfied. 573 U.S.
149, 167 (2014). But the Court stopped short of deciding that question, see id. at 167–68, and
15
The inquiries into constitutional and prudential ripeness may overlap. For example, a
case with no “certainly impending” injury for the purposes of a constitutional inquiry is also
likely to fail the fitness inquiry for prudential ripeness. See Atl. States Legal Found. v. EPA, 325
F.3d 281, 284 (D.C. Cir. 2003) (noting that the fitness inquiry in APA cases turns in part on
whether the case at hand provides a sufficiently “concrete setting” to decide the case). Perhaps
for this reason, courts sometimes conduct the ripeness analysis without parsing which elements
of the analysis are constitutional, prudential, or both. See, e.g., Ohio Forestry Ass’n, Inc. v.
Sierra Club, 523 U.S. 726, 732–33 (1998) (beginning the justiciability analysis by considering
three factors to evaluate the fitness and hardship elements of ripeness, without deeming them
prudential); Lujan v. Nat’l Wildlife Fed., 497 U.S. 871, 891 (1990) (explaining, without labeling
the requirement constitutional or prudential, that an APA claim is usually not ripe “until the
scope of the controversy has been reduced to more manageable proportions, and its factual
components fleshed out, by some concrete action applying the regulation to the claimant’s
situation in a fashion that harms or threatens to harm him”); Alcoa Power Generating Inc. v.
FERC, 643 F.3d 963, 967 (D.C. Cir. 2011) (discussing the fitness and hardship determinations
without classifying such considerations prudential or constitutional); La. Pub. Serv. Comm’n v.
FERC, 522 F.3d 378, 397 (D.C. Cir. 2008) (noting that ripeness has both constitutional and
prudential roots, and then addressing the fitness and hardship factors without labeling those
factors strictly “prudential”). Here, the Court will focus on the factors required to establish
prudential ripeness, but, for similar reasons, much of this analysis will overlap with
corresponding constitutional considerations.
the D.C. Circuit has continued to require prudential ripeness even when constitutional ripeness is
established, see, e.g., Perry Cap. LLC v. Mnuchin, 864 F.3d 591, 632–33 (D.C. Cir. 2017).
16
1. Fitness
The fitness requirement promotes two important interests: first, “the agency’s interest in
crystallizing its policy before that policy is subjected to judicial review,” and, second, “the
court's interests in avoiding unnecessary adjudication and in deciding issues in a concrete
setting.” Wyo. Outdoor Council, 165 F.3d at 49 (quoting Eagle-Picher Indus. v. EPA, 759 F.2d
905, 915 (D.C. Cir. 1985)). The Court must, accordingly, consider whether the issue presented
“is purely legal, whether consideration of the issue would benefit from a more concrete setting,
and whether the agency’s action is sufficiently final.” Her Majesty the Queen in Right of
Ontario v. EPA, 912 F.2d 1525, 1532 (D.C. Cir. 1990). Even if the issue is ‘“a purely legal
one,”’ it is not “fit” for judicial review if “further factual development would ‘significantly
advance [the Court’s] ability to deal with the legal issues presented.’” Nat’l Park Hosp. Ass’n,
538 U.S. at 812 (quoting Duke Power Co. v. Carolina Env’t Study Grp., Inc., 438 U.S. 59, 82
(1978)); see also Atl. States Legal Found., 325 F.3d at 284 (“[E]ven purely legal issues may be
unfit for review.”).
Here, FOA raises a host of issues, some of which are purely legal and some of which turn
on the facts. It maintains (1) that to the extent the four Gather Decisions purport to authorize
future roundup over the next ten years, they represent an unexplained and arbitrary departure
from past agency policies, litigation positions, and land-use plans requiring the issuance of a
NEPA assessment for each wild horse management decision, including each roundup and
removal action, Dkt. 37 at 27–35; (2) that the WHA “prohibits the [Bureau] from continually
rounding up wild horses for ten years into the future based on an older determination” and from
basing “its decision on outdated information” or “on information that is not yet available, such as
the wild horse population two, five, or ten years from now,” id. at 36–37; and (3) that the Bureau
17
should have prepared an EIS for each of the Decisions and failed to take a “hard look” at the
environmental consequences of each individual roundup, including the changes in environmental
conditions that will occur over the next several years, uncertainty about the long-term effect of
fertility measures, and the cumulative impacts of “continually removing wild horses for ten-years
and applying fertility controls” over that same period, id. at 38–51.
Beyond the completed gathers, which are addressed above, the challenged Decisions
contemplate future, discrete agency actions—administering contraceptives to horses or removing
them through future gathers—over the course of ten years. But when and under what
circumstances those actions will occur remains to be determined. See, e.g., Dkt. 37 at 19, 26; id.
at 41 (referring to the Decisions as “authoriz[ing] an undisclosed number of wild horse roundups
over the next ten years”). The Decisions themselves set no timetables and, indeed, only include
vague descriptions of the criteria for conducting future gathers. The Pine Nut Decision, for
example, explains that “it is anticipated that subsequent gathers and removals to maintain AML
[will] be necessary” and that, “[a]fter the initial gather[,] subsequent gathers and removals [will]
occur to maintain AML and vaccinate and revaccinate the mares with contraceptives.” Dkt. 46-3
at 109. Likewise, the Muddy Creek Decision explains that the Bureau will “return periodically
to gather excess wild horses to maintain AML and administer or booster population control
measures to the other gathered horses over a period of ten years from the date of the initial gather
operation,” Dkt. 46-1 at 106; the Eagle Complex Decision merely specifies that, if the Bureau
fails to remove a sufficient number of horses to achieve low AML, it will “return . . . to remove
excess horses above low AML and [will] conduct follow-up gathers over a [ten-]year period after
the initial gather to remove [and administer contraceptives to] any additional wild horses
necessary to achieve and maintain the low range of AML,” Dkt. 46 at 42; and the Onaqui
18
Decision authorizes “follow-up gathers, as frequently as needed, [to] be conducted over a [ten]-
year period to remove any additional wild horses necessary to maintain the wild horse population
at AML,” Dkt. 46-2 at 282. In all of the Decisions, the Bureau stipulates that “[p]opulation
inventories and routine resource/habitat monitoring [will] be completed between gather cycles to
document current population levels, growth rates, and areas of continued resource concern . . .
prior to any follow-up gather.” Dkt. 46 at 42; see also Dkt. 46-3 at 279 (similar); Dkt. 46-1 at
107 (same); Dkt. 46-2 at 441 (same). In short, future gathers are not planned for set intervals
but, rather, require ongoing “monitoring” and “track[ing] of the[] [wild horse] populations and
the . . . health” of those populations. Nov. 18, 2020 Hrg. Tr. (Rough at 35).
Beyond this technical uncertainty, the Decisions condition future actions on available
funding, facility capacity, and Bureau priorities. See Dkt. 46-3 (contemplating that “BLM [could
be] unable to conduct limited or targeted follow-up gathers over the next [ten] years . . . due to
lack of funding or available holding capacity”); Dkt. 46-1 at 107 (“Funding limitations and
competing priorities might impact the timing of maintenance gather and population control
components . . . .”); Dkt. 46 at 42 (same); Dkt. 46-2 at 282 (“All gathers . . . [would] be
dependent on funding and available space for the horses in adoption and/or sale programs or
holding facilities.”). As counsel for the Bureau explained at oral argument, “there are time
periods where the agency cannot continue to gather,” such as “during the foaling season,” Nov.
18, 2020 Hrg. Tr. (Rough at 22); it is “only so often the agency has enough budget to take
action,” id.; see also id. at 26; weather conditions can “preclude gathering,” id.; and the
contractors, including helicopter operators used in the gathers, are not always available, id. at 26;
see also id. at 38.
19
Moreover, although the Gather Decisions contemplate that future gathers may occur
without a further environmental assessment and without public comment, that is a decision that
Bureau officials will have to make in the future—perhaps weeks from now or perhaps years from
now. Significantly, counsel for the Bureau represented at oral argument that, “[t]o the extent
conditions on the ranges change over time and require different management activities, there will
be new NEPA” assessments. Id. at 55. To be sure, counsel for both parties seem to anticipate
that the Bureau is likely to conduct some future gathers without conducting additional
environmental assessments. But that anticipation must be tempered by (1) the prospect that
future policymakers (and future administrations) may conclude otherwise over the many years at
issue and (2) the Court’s obligation to avoid placing itself in the shoes of those policymakers
before they have had the opportunity to evaluate all of the relevant facts—including facts that
have yet to occur—and have decided how to proceed. Cf. Pub. Citizen, Inc. v. Trump, 297 F.
Supp. 3d 6, 22–23 (D.D.C. 2018) (“Court[s] should avoid speculating about how governmental
entities will exercise their discretion.”) (citation and quotation marks omitted).
Against this backdrop, the Court cannot conclude—at least on the present record—that
the issues in dispute are fit for judicial determination. FOA challenges the four Decisions on the
ground that the agency has failed to offer a reasoned explanation for its alleged departure from
past policies, litigation positions, and land-use plans, but that concern would dissipate if the
Bureau were to offer the missing rationale at any time before conducting a future gather. The
nature and extent of the alleged departure (and the prospect of prejudicial error), moreover, may
depend at least in part on how much time passes before the gather occurs, whether any material
conditions have changed, and whether any additional opportunity for public comment is
provided.
20
The same is true of FOA’s statutory argument. FOA posits that the WHA precludes the
Bureau from conducting gathers based on stale information and analyses. Yet the strength of
that argument may turn on the passage of time and intervening conditions. A gather conducted
next month that merely completes (or attempts to complete) the Bureau’s prior effort to achieve
AML in the first instance poses different questions than a gather conducted years from now, after
the Bureau has achieved AML and the herd size has re-grown to levels that strain the then-
exiting conditions on the range.
And questions of this sort apply with even greater force to FOA’s NEPA arguments. The
length of time that passes between an agency’s conduct of a NEPA analysis and the
contemplated action may bear on the adequacy of that analysis, particularly if conditions have
changed in material respects. See Marsh, 490 U.S. at 373–74 (explaining that the decision to
prepare a supplemental EIS “turns on the value of the new information to the still pending
decision[-]making process”). Indeed, as counsel acknowledged at oral argument, such a change
might well prompt the Bureau to conduct the type of NEPA analysis that FOA claims is missing
here. Nov. 18, 2020 Hrg. Tr. (Rough at 54–55).
“In the context of agency decision making, letting the administrative process run its
course before binding parties to a judicial decision prevents courts from ‘entangling themselves
in abstract disagreements over administrative policies, and . . . protect[s] the agencies from
judicial interference’ in an ongoing decision-making process.” Am. Petrol. Inst., 683 F.3d at 386
(alteration in original) (quoting Abbott Labs., 387 U.S. at 148). On the present record, the Court
is unpersuaded that it can reach the merits of FOA’s various challenges without knowing when
the further gathers will occur, whether conditions will have changed by that time, and whether
the Bureau might decide to conduct further environmental analyses before acting. These
21
uncertainties amount to “genuine issue[s] of material fact as to justiciability,” Dep’t of
Commerce, 525 U.S. at 329, and counsel against granting summary judgment on the merits to
either party. Waiting for further administrative developments, moreover, will provide FOA and
others with time to convince the Bureau to alter its position or to correct its mistakes, and will
“as least solidify or simplify the factual context and narrow the legal issues at play, allowing for
more intelligent resolution of any remaining claims.” Am. Petrol. Inst., 683 F.3d at 387.
In Friends of Animals v. Haugrud, the Court confronted a similar set of facts. 236 F.
Supp. 3d 131 (D.D.C. 2017). The challenged decision in that case authorized the removal of 167
horses beginning on September 14, 2015, but also contemplated future gathers in subsequent
fiscal years, subject to funding and space at holding facilities. Id. at 134. In response to FOA’s
challenge in that case, the Bureau argued that any challenge to future gathers was unripe
“because the BLM [had] yet to authorize or plan an additional gather of wild horses.” Federal
Defendants’ Reply in Support of Cross-Motion for Summary Judgment at 7, Haugrud, (No. 15-
cv-1500). The Bureau explained its obligation as follows:
[B]efore gathering any additional wild horses from the [HMA], the BLM will
have to make a determination about whether additional environmental review or
NEPA analysis is warranted. . . . Even if [the BLM] confirms that an action is
adequately analyzed in an existing NEPA document, the BLM would still
normally prepare a new decision document before implementing another wild
horse gather. . . . The second option is to prepare additional NEPA analysis in
the form of an EA if the BLM determines that rangeland or other conditions have
changed significantly. Either way, the BLM would have to determine the
method of removal and how many horses it can attempt to remove.
Id. at 8. The Bureau also explained that it would have to secure funding prior to any new gather
and that any decision would be issued 31–76 days prior to the proposed gather to allow plaintiffs
like FOA to pursue administrative appeals or legal challenges in district court. Id. at 9.
22
Applying the test for prudential ripeness, the Haugrud court concluded that (1) no
hardship would result to FOA from delayed review because the organization would have an
opportunity to challenge any future, date-specific gather once the BLM announced a decision
authorizing that action; (2) judicial review before such specific decisions would inappropriately
interfere with the BLM’s future decisions; and (3) the Court would benefit from further factual
development of the issues, because the Bureau’s analyses for future gathers might remedy the
alleged shortcomings FOA cited in the challenged decision at hand. Haugrud, 236 F. Supp. 3d at
135. After rejecting FOA’s counterarguments, the Court dismissed the case as unripe. Id. at
136.
The Bureau contends that this case differs from Haugrud because the agency decision at
issue in Haugrud merely contemplated possible future gathers, while the Decisions at issue here
“are explicit about the need for long-term planning and execution.” Dkt. 47-1 at 12. But that
distinction is far from clear. The decision at issue in Haugrud contemplated future gathers
subject to funding and logistical limitations; the same is true here. In Haugrud, counsel
explained that before gathering additional horses, the Bureau would need to decide whether to
conduct additional environmental review or NEPA analysis; the same is true here. And, in
Haugrud the challenged decision did not address when or how to remove additional horses or
how many horses to remove; once again, the same is true here. Ultimately, the difference
between this case and Haugrud may be more in degree than in kind. It may be that future
gathers—for at least some of the HMAs—are more likely here, while the prospect that the
Bureau will conduct further environmental assessments is less likely. But the existing record
does not show that these differences are as pronounced as Bureau assumes, and, more
23
importantly, it does not establish when, how, and under what circumstances the Bureau will
conduct the additional, contemplated gathers.
At least on the current record, the Court is, accordingly, unpersuaded that FOA’s
challenges are fit for judicial review.
2. Hardship
When, as here, a court has “doubts about the fitness of [an] issue for judicial resolution,”
it must “balance the institutional interests in postponing review against the hardship to the parties
that will result from delay.” Consol. Rail Corp. v. United States, 896 F.2d 574, 577 (D.C. Cir.
1990); see also Nat’l Ass’n of Home Builders v. U.S. Army Corps of Engineers, 440 F.3d 459,
465 (D.C. Cir. 2006) (quoting same). “[M]ere uncertainty as to the validity of a legal rule” does
not “constitute[] a hardship for purposes of the ripeness analysis.” Nat’l Park Hosp. Ass’n, 538
U.S. at 811. The focus of the hardship prong, moreover, “is not [on] whether [the plaintiff has]
suffered any ‘direct hardship,’ but rather [on] whether postponing judicial review would impose
an undue burden on them or would benefit the court.” Harris v. FAA, 353 F.3d 1006, 1012 (D.C.
Cir. 2004) (emphasis omitted).
If FOA faced the risk that the Bureau would conduct further gathers without providing
advance public notice, it might well suffer undue prejudice if judicial review were postponed;
under those circumstances, its ability to bring a challenge could be mooted before it even learns
of the suspect agency action. But, here, the Bureau has represented that the “the public will get
notice of at least up to 30 days” before future gather occurs. Nov. 18, 2020 Hrg. Tr. (Rough at
51). Although this assurance includes contradictory language—“at least” implies 30 or more
days, while “up to” implies 30 or fewer days—the Court assumes that counsel meant that the
24
public will receive notice 30 days or more in advance of any future gather.6 With that
understanding, the Court concludes that FOA can avoid any hardship by seeking judicial review
before the action occurs. The Bureau, in turn, runs the risk that if it provides notice of only 30
days (or even 60 or 90 days) it may face a motion for a preliminary injunction. But, at least on
the current record, the Court is unconvinced that the burden that FOA might face in seeking
preliminary relief and the burden the Bureau might face in opposing such a motion are sufficient
to outweigh the substantial “institutional interests in postponing review.” Consol. Rail Corp.,
896 F.2d at 577.
The Court is accordingly unpersuaded, at least on the existing record, that any burden to
the parties that might result from postponing review outweighs the institutional interest in
postponing review.
* * *
All that is currently before the Court are the parties’ cross-motions for summary
judgment, neither of which seeks dismissal on grounds of justiciability. As a result, the Court’s
decision is a limited one: The Court merely concludes that its doubt about the justiciability of
FOA’s claims precludes it from reaching the merits of the parties’ dispute on the present record.
The Court has not concluded that FOA’s complaint should be dismissed at this time. In light of
this decision, the Bureau is free to seek dismissal of some or all of FOA’s claims as non-
justiciable, and the parties are free to renew their cross-motions for summary judgment in whole
or in part. If either party elects to take the latter course, however, it must demonstrate that the
6
If the Court’s assumption is incorrect, counsel for the Bureau shall promptly clarify its position
regarding the public notice it will offer in advance of any future gathers.
25
issues raised in such a motion are ripe for judicial consideration and have not been mooted by
intervening events.7
CONCLUSION
For the reasons above, the Court will DENY FOA’s motion for summary judgment and
will DENY the Bureau’s cross-motion for summary judgment. The Court will set a status
conference to address further proceedings in this matter.
SO ORDERED.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: January 22, 2021
7
Among other things, the parties will need to address whether the public will receive advance
notice of future administrations of contraceptives. Although some language in the Decisions
suggests that the Bureau will administer contraceptives to horses that have been gathered, Dkt.
46-3 at 109, 246; Dkt. 46-1 at 106, 137–38; Dkt. 46 at 41–42, 132, other language in some of the
Decisions suggests that long-range darting may be used, Dkt. 46-3 at 174; Dkt. 46 at 132; Dkt.
46-2 at 375. As a result, it is unclear whether gathering is needed to administer contraceptives
and whether the Bureau’s undertaking to provide notice prior to gathers extends to the
administration of birth control.
26