`Case 2:22-cv-01200-CDS-BNW Document 1 Filed 07/26/22 Page 1 of 25
`
`DANIELLE M. HOLT
`(Nevada Bar No. 13152)
`DE CASTROVERDE LAW GROUP
`1149 S Maryland Pkwy
`Las Vegas, NV 89104
`Ph (702) 222-9999
`Fax (702) 383-8741
`danielle@decastroverdelaw.com
`
`JESSICA L. BLOME
`(Cal. Bar No. 314898, pro hac vice application forthcoming)
`ALEXANDRA J. MONSON
`(Cal. Bar No. 324794, pro hac vice application forthcoming)
`GREENFIRE LAW, PC
`P.O. Box 8055
`Berkeley, CA 94707
`(510) 900-9502
`jblome@greenfirelaw.com
`amonson@greenfirelaw.com
`
`Attorneys for Plaintiffs
`
`
`UNITED STATES DISTRICT COURT
` DISTRICT OF NEVADA
`
`
`
`
`
`
`
`
`
`
`
`
`CASE NO.
`
`PLAINTIFFS’ COMPLAINT FOR
`INJUNCTIVE AND DECLARATORY
`RELIEF
`
`
`CANA FOUNDATION, a non-profit
`corporation, LAURA LEIGH, individually,
`and WILD HORSE EDUCATION, a non-
`profit corporation,
`
`
`Plaintiffs,
`
`v.
`
`
`UNITED STATES DEPARTMENT OF
`INTERIOR, BUREAU OF LAND
`MANAGEMENT, and JON RABY, Nevada
`State Director of the Bureau of Land
`Management,
`
`
`Defendants.
`
`
`
`
`
`
`
`
`
`
`Page 1 of 25
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`Case 2:22-cv-01200-CDS-BNW Document 1 Filed 07/26/22 Page 2 of 25
`
`1.
`Plaintiffs respectfully bring this case to challenge a decision by the United States
`Department of Interior, Bureau of Land Management (BLM) to remove wild, free-roaming horses
`and burros from Herd Management Areas in violation of the Wild Free-Roaming Horses and
`Burros Act, 16 U.S.C. § 1331, et seq., which, as implemented through federal regulations, requires
`that such plans be carried out pursuant to a Herd Management Area Plan, or “HMAP.” See 43
`C.F.R. § 4710.4. The BLM has not yet adopted an HMAP for the area in question. Nonetheless,
`beginning on August 1, 2022, BLM plans to gather and remove hundreds of horses and burros by
`helicopter in the Blue Wing Complex of Herd Management Areas, located in Nevada, with the
`stated goal of removing approximately 1,000 animals from the land. The BLM developed its plan
`to remove these wild horses and burros in violation of the Wild Free-Roaming Horses and Burros
`Act, which, through its regulations, requires that such plans be carried out pursuant to an HMAP.
`43 C.F.R. § 4710.4. An HMAP does not yet exist for the Blue Wing Complex or any of its Herd
`Management Areas. The BLM’s gather plan was finalized in 2017 and BLM’s decision to conduct
`a 2022 gather of wild horses and burros pursuant to that plan also violates the mandate that BLM
`immediately remove excess animals based on current information. 16 U.S.C. § 1333(b)(2).
`Plaintiffs file this Complaint for Injunctive and Declaratory Relief (Complaint) to prevent the BLM
`from implementing further herd management activities until Defendants have complied with the
`Wild Free-Roaming Horses and Burros Act, National Environmental Policy Act (NEPA), and
`Administrative Procedure Act (APA).
`JURISDICTION AND VENUE
`2.
`This Court has jurisdiction over the subject matter of this action pursuant to 5
`U.S.C. § 706, 28 U.S.C § 1331, and 28 U.S.C. § 1361.
`3.
`Venue is proper in this district court pursuant to 28. U.S.C. § 1391. The BLM has
`sufficient contacts to subject it to personal jurisdiction in this district.
`THE PARTIES
`4.
`Plaintiff CANA FOUNDATION is a non-profit corporation that works with
`science-backed information to create rewilding initiatives for wild horses and environments.
`
`
`
`
`
`Page 2 of 25
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`Case 2:22-cv-01200-CDS-BNW Document 1 Filed 07/26/22 Page 3 of 25
`
`CANA Foundation’s principal place of business is at 6150 Northern Boulevard, East Norwich,
`N.Y., 11732. CANA Foundation’s rewilding initiatives foster community empowerment, land
`conservation, and the sustainable management and preservation of America’s wild horse
`populations. CANA Foundation rescues, re-wilds, and re-homes wild horses in order to improve
`their quality of life and ensure that they can live with dignity in protected habitats. CANA
`Foundation actively monitors for any Herd Management Area Plans that are available for public
`comment in the United States and routinely submits comments throughout the public commenting
`process. The Blue Wing Complex is one of the wild horse herds that CANA Foundation monitors
`and advocates for. The further gathering and removal of wild horses and burros in the Blue Wing
`Complex due to the challenged actions will adversely affect the substantial recreational, aesthetic,
`scientific, and conservational interests of CANA Foundation and its staff, volunteers, members,
`and supporters.
`5.
`Defendants’ failure to comply with the requirements of the Wild Free-Roaming
`Horses and Burros Act injured the CANA Foundation because Defendants’ failure to prepare the
`required HMAP thwarted their organizational mission to advance rewilding as an alternative
`management strategy for wild horses and burros. Because the BLM failed to prepare an HMAP
`(and refused to entertain comments it considered outside the scope of its NEPA review that would
`have been appropriate in the context of an HMAP review), the CANA Foundation has been and
`continues to be injured by Defendants’ violations of the law.
`6.
`Plaintiff WILD HORSE EDUCATION is a national non-profit corporation
`dedicated to research, journalism, and public education concerning the activities and operations of
`federal and state management of the free-roaming wild horse and burro populations. Wild Horse
`Education’s principal place of business is 216 Lemmon Drive, # 316, Reno, N.V., 89506. Wild
`Horse Education has more than 150,000 members and educates and informs the public about wild
`horses and burros through articles, photographs, videos, and sharing data and other information.
`Wild Horse Education also frequently submits comments on Herd Management Area Plans,
`Environmental Assessments, and other wild horse management documents and hearings made
`
`
`
`
`
`Page 3 of 25
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`Case 2:22-cv-01200-CDS-BNW Document 1 Filed 07/26/22 Page 4 of 25
`
`available for public comment. Advocating for the wild horses and burros in the Blue Wing
`Complex is a past, present, and future important issue for Wild Horse Education. Wild Horse
`Education attended Bureau of Land Management’s public tour of the Blue Wing Complex in
`March 2016 and actively participated in the public commenting process of the Environmental
`Assessment for the Blue Wing Complex Gather Plan, which was finalized on October 23, 2017.
`Wild Horse Education has actively participated in the review of wild horse and burro management
`and gather plans, and their members and supporters regularly attend and observe wild horse and
`burro roundups, removals, and holding pens. The further gathering and removal of wild horses and
`burros in the Blue Wing Complex due to the challenged actions will adversely affect the substantial
`recreational, aesthetic, and conservational interests of Wild Horse Education and its staff,
`volunteers, members, and supporters.
`7.
`Plaintiff LAURA LEIGH is the Founder and President of Plaintiff WILD HORSE
`EDUCATION. In addition, Ms. Leigh works with multiple non-profit organizations engaged in
`public land issues and provides in-field documentation and commentary on public land issues such
`as wild horse and burro gathers and removals. Ms. Leigh is also a free-lance photojournalist, whose
`work has appeared internationally in media broadcast outlets, such as CNN, BBC/ITV, ABC,
`Common Dreams, and CounterPunch. Ms. Leigh has visited, observed, and photographed the wild
`horses and burros at the Blue Wing Complex at least once a year since 2009. Ms. Leigh experiences
`great enjoyment from watching and monitoring individual horses and burros in the Blue Wing
`Complex. Of particular interest, Ms. Leigh commonly seeks out and photographs paint burros at
`the Blue Wing Complex as this is one of the only areas where there are wild paint burros. Ms.
`Leigh has also attended several wild horse and burro roundups throughout the United States, and
`frequently reviews photographs and videos from any roundups she is not able to attend in person.
`When Ms. Leigh recognizes individual horses and burros that she has previously observed as wild,
`free-roaming horses and burros, she experiences great sadness, but feels it is her responsibility to
`the animals to observe their treatment and capture and share it with others to educate them on the
`plight of wild horses and burros. The further gathering and removal of wild horses and burros in
`
`
`
`
`
`Page 4 of 25
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`Case 2:22-cv-01200-CDS-BNW Document 1 Filed 07/26/22 Page 5 of 25
`
`the Blue Wing Complex due to the challenged actions will adversely affect the substantial
`recreational, aesthetic, and conservational interests of Ms. Leigh.
`8.
`CANA Foundation and Wild Horse Education (collectively, the Nonprofit
`Plaintiffs) and their members, supporters, and staff have a long-standing interest in wild, free-
`roaming horses and burros and routinely advocate for wild horses and burros in Nevada. If they
`had been given the opportunity, Nonprofit Plaintiffs would have submitted comments to the
`Bureau of Land Management regarding a Herd Management Area Plan for the Blue Wing
`Complex.
`9.
`Wild Horse Education’s members, supporters, and staff visit the Blue Wing
`Complex for photography, observing wildlife, and other recreational and professional pursuits.
`Nonprofit Plaintiffs’ members, supporters, and staff gain aesthetic enjoyment from observing,
`attempting to observe, hearing, seeing evidence of, and studying wild horses and burros. The
`opportunity to possibly view wild horses and burros, or signs of them, in these areas is of
`significant interest and value to Nonprofit Plaintiffs’ members, supporters, and staff, and increases
`their use and enjoyment of Nevada’s public lands. Nonprofit Plaintiffs’ members, supporters, and
`staff have engaged in these activities in the past and have specific plans to do so again in the future.
`10.
`Nonprofit Plaintiffs’ members and supporters are adversely impacted by the
`gathering and removal of wild horses and burros from the Blue Wing Complex. Nonprofit
`Plaintiffs’ members also have an interest in the health and humane treatment of animals, and work
`to rehabilitate sick and injured wildlife, including horses and burros. Nonprofit Plaintiffs’
`members, staff, volunteers, and supporters have engaged in these activities in the past and intend
`to do so again soon.
`11.
`Nonprofit Plaintiffs, as well as their members, supporters, and staff, are dedicated
`to ensuring the long-term survival of the wild, free-roaming horses and burros throughout the
`contiguous United States, and specifically in Nevada, and to ensuring that Defendants comply with
`all applicable state and federal laws related to the survival and humane treatment of wild horses
`and burros in Nevada. In furtherance of these interests, Nonprofit Plaintiffs’ members, supporters,
`
`
`
`
`
`Page 5 of 25
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`Case 2:22-cv-01200-CDS-BNW Document 1 Filed 07/26/22 Page 6 of 25
`
`and staff have worked, and continue to work, to protect and advocate for wild horses and burros
`in Nevada and throughout the contiguous United States.
`12.
`The interests of Nonprofit Plaintiffs’ members, supporters, and staff have been, and
`will continue to be, injured by Defendants’ improper and inhumane gather and removal of wild
`horses and burros in the Blue Wing Complex. The interests of Nonprofit Plaintiffs’ members,
`supporters, and staff have been, and will continue to be, injured by Defendants’ failure to comply
`with their obligations under the Wild Free-Roaming Horses and Burros Act (Wild Horse Act),
`National Environmental Policy (NEPA), and Administrative Procedure Act (APA) in gathering
`and removing wild, free-roaming horses and burros in gruesome and inhumane ways in the Blue
`Wing Complex without a Herd Management Area Plan.
`13.
`The injunctive relief requested provides the only remedy that can redress the
`injuries of Nonprofit Plaintiffs, including of their members, supporters, volunteers, and staff. The
`relief requested by Plaintiffs, if granted, would require Defendants to comply with the
`requirements of the Wild Horse Act, NEPA, and APA before further gathering and removing wild,
`free-roaming horses and burros from the Blue Wing Complex. The relief requested by Plaintiffs,
`if granted, would reduce the number of wild, free-roaming horses and burros needlessly injured,
`killed, or removed by Defendants.
`14.
`Defendant JON RABY is Nevada State Director of the BLM, and is charged by
`federal statute with managing, administering, and protecting the wild horses and burros in the State
`of Nevada, including the Blue Wing Complex, pursuant to the Wild Horse Act.
`15.
`Defendant DEPARTMENT OF INTERIOR, BUREAU OF LAND MANAGE-
`MENT is charged by federal statute to manage administer and protect the wild horses and burros
`in the State of Nevada, including the Blue Wing Complex, pursuant to the Wild Free-Roaming
`Horses and Burros Act, 16 U.S.C. §§ 1331-1340.
`GENERAL ALLEGATIONS OF FACTS
`A. Wild Free-Roaming Horses and Burros Act
`16.
`Finding that “wild free-roaming horses and burros are living symbols of the historic
`
`
`
`
`
`Page 6 of 25
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`Case 2:22-cv-01200-CDS-BNW Document 1 Filed 07/26/22 Page 7 of 25
`
`and pioneer spirit of the West,” and that “they contribute to the diversity of life forms within the
`Nation and enrich the lives of the American people,” Congress enacted the Wild Free-Roaming
`Horses and Burros Act (Wild Horse Act) to ensure that “wild-free roaming horses and burros shall
`be protected from capture, branding, harassment, [and] death,” and will “be considered in the area
`where presently found, as an integral part of the natural system of the public lands.” 16 U.S.C. §
`1331.
`
`17.
`“Wild free-roaming horses and burros” are defined under the Wild Horse Act as
`“all unbranded and unclaimed horses and burros on public lands of the United States,” which
`include lands “administered by the Secretary of the Interior through the Bureau of Land
`Management or by the Secretary of Agriculture through the Forest Service.” Id. §§ 1332(b), (e);
`see also 36 C.F.R. § 222.60(b)(13).
`18.
`The Wild Horse Act directs the Secretary of the Interior to “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 on the public lands.” 16 U.S.C. § 1331.
`To further ensure this objective, the statute provides that “[a]ll management activities shall be at
`the minimal feasible level.” 16 U.S.C. § 1333(a).
`19.
`The Wild Horse Act also gives the Secretary the ability to remove “excess” wild
`free-roaming horses and burros from the public range. “[E]xcess animals” are defined in the statute
`as wild free-roaming horses and 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.” 16
`U.S.C. § 1332(f).
`20.
`The Secretary must first make a determination that 1) an overpopulation of animals
`exists and 2) that action is necessary to remove excess animals, before immediately removing the
`excess animals. 16 U.S.C. § 1333(b)(2). The Secretary must determine both of those requirements
`on the basis of the current inventory of lands, information contained in any land use planning
`documents, information contained in court ordered environmental impact statements, and any
`additional information currently available to him/her. Id.
`
`
`
`
`
`Page 7 of 25
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`Case 2:22-cv-01200-CDS-BNW Document 1 Filed 07/26/22 Page 8 of 25
`
`21.
`A wild horse gather plan violates the immediate removal mandate of the Wild Horse
`Act when it permits the removal of excess animals up to ten years from its promulgation. Friends
`of Animals v. Culver, No. 19-3506 (D.D.C. Jun. 28, 2022).
`22.
`Excess horses must be “humanely captured and removed” per the Wild Horse Act’s
`mandates. 16 U.S.C § 1333(b)(2)(B).
`23.
`“[H]umane treatment” is defined as “handling compatible with animal husbandry
`practices accepted in the veterinary community, without causing unnecessary stress or suffering to
`a wild horse or burro.” 43 C.F.R. § 4700.0-5(e). “Inhumane treatment” is defined as “any
`intentional or negligent action or failure to act that causes stress, injury, or undue suffering to a
`wild horse or burro and is not compatible with animal husbandry practices accepted in the
`veterinary community.” 43 C.F.R. § 4700.0-5(f).
`24.
`The Secretary delegated responsibility to administer the Wild Horse Act to the
`BLM. 43 C.F.R. § 4700.0-3.
`25.
`The BLM’s regulations require that the Secretary establish Herd Management
`Areas for the maintenance of wild horse and burro herds. 43 C.F.R. § 4710.3-1. In delineating each
`herd management area, the BLM must consider the appropriate management level for the herd, the
`habitat requirements of the animals, the relationships with other uses of the public and adjacent
`private lands, and the constraints contained in § 4710.4, which limits management of wild horses
`and burros to “the minimum level necessary to attain the objective identified in approved land use
`plans and herd management area plans.” 43 C.F.R. § 4710.4.
`26.
`Once a Herd Management Area is established, the BLM “shall prepare a herd
`management area plan, which may cover one or more herd management areas.” 43 C.F.R. § 4710.4
`(emphasis added).
`27.
`The Herd Management Area Plans assist the BLM in meeting the regulatory policy
`requirements to manage wild horses and burros “in balance with other uses and the productive
`capacity of their habitat” and to ensure that wild horses and burros are “considered comparably
`with other resource values[.]” 43 C.F.R. §§ 4700.0-6(a)-(b).
`
`
`
`
`
`Page 8 of 25
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`Case 2:22-cv-01200-CDS-BNW Document 1 Filed 07/26/22 Page 9 of 25
`
`28.
`A Herd Management Area Plan is the only wild horse and burro management
`document that is expressly identified and required by the Wild Horse Act regulations.
`29.
`The BLM implements its regulations through a policy document referred to as the
`“Wild Horses and Burros Management Handbook H-4700-1,” (BLM Handbook).
`30.
`The BLM Handbook is not an agency rule; it was not subject to notice and comment
`rulemaking and does not have the force and effect of law, like the Wild Horse Act and BLM
`Regulations. The BLM Handbook is a policy document that presents guidance to BLM staff for
`implementing BLM’s statutory and regulatory obligations in a uniform matter.
`31.
`Nevertheless, the BLM Handbook mirrors the BLM Regulations and requires that
`all wild horse herd management activities be carried out “at the minimum feasible level of
`management necessary to attain the objectives identified in approved land use plans (LUPs) and
`Herd Management Area Plans (HMAPs).” BLM Handbook, Chap. 1, p. 6 (emphasis added).
`32.
`Nothing in the BLM Handbook gives BLM authority to ignore its statutory and
`regulatory mandate to conduct herd management activities in a way that maintains the minimum
`feasible level required pursuant to a LUP and HMAP. See 43 C.F.R. § 4710.4 (“Management shall
`be at the minimum level necessary to attain the objectives identified in approved land use plans
`and herd management area plans.”)
`33.
`The BLM Handbook goes on to clarify that HMAPs, rather than LUPs, must be
`used to identify and document habitat and population management and monitoring objectives for
`specific complexes of HMAs. Id. at Chap. 2, p. 10. In fact, the BLM Handbook dictates that
`HMAPs must tier to and be in conformance with applicable LUPs. Id.
`34.
`To achieve statutory goals, HMAPs must also include a plan for monitoring and
`evaluating management actions and decisions and require the collection of data/information
`necessary to evaluate the effectiveness of those decisions. Id. at Chap. 6.2, p. 43. The BLM
`Handbook further emphasizes that “[a]s required in 43 C.F.R. § 4710.4, management shall be at
`the minimum level necessary to attain the objectives identified in approved LUPs and HMAPs.”
`Id.
`
`
`
`
`
`Page 9 of 25
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`Case 2:22-cv-01200-CDS-BNW Document 1 Filed 07/26/22 Page 10 of 25
`
`35.
`Importantly, in evaluating and selecting the wild horse management plan
`authorized by an HMAP, the BLM must consider a range of alternatives, including taking no
`action. Id. at p. 38. The BLM Handbook provides the example of “consider[ing] differing gather
`seasons or methods, various tools to slow population growth, or various habitat tools, projects, or
`techniques” as possible considerations for an alternatives analysis. Id. The alternative management
`strategies identified in an HMAP are intended to be broader and more long-term than just single
`and one-time management tools, projects, or methods.
`36.
`HMAPs may be prepared for a single HMA or a complex of adjacent HMAs where
`animal interchange occurs and must “identify and set objectives for [wild horse and burro] herds
`and their habitat.” Id. at Chap. 6, p. 11, 36.
`37.
`Habitat management and monitoring consists of analyzing the forage, water, cover,
`and space available for wild horses. Id. at Chap. 3, p. 12-13.
`38.
`Examples of habitat management projects include seeding, emergency fire
`rehabilitation, constructing and maintaining fencing, rewilding, and water developments. Id. at p.
`13-15. Examples of population control methods include gathers and removals, fertility control, and
`adjusting male/female sex ratios. Id. at p. 23-17.
`39.
`The BLM makes clear that the public participation process for an HMAP involves
`public review and comment to allow for public scoping of the key issues identified and the range
`of alternatives to be considered in the HMAP. Id. at p. 37.
`40.
`Figure 6.1 of the BLM Handbook demonstrates the separate and important
`decision-making process undertaken by agency officials when developing required HMAPs,
`
`
`
`
`
`Page 10 of 25
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`Case 2:22-cv-01200-CDS-BNW Document 1 Filed 07/26/22 Page 11 of 25
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`including public participation. See BLM Handbook, Figure 6.1, p. 36.
`41.
`During HMAP development, herd-specific and habitat-specific information and
`concerns may be raised during public participation. For example, the public could submit
`information and data regarding the foaling season of the particular herd or local weather conditions
`that effect the range and horse movement during certain months. BLM would then be required to
`consider and address these site-specific concerns in the HMAP and any management actions that
`result from the HMAP would be in conformance with these considerations. This leads to more
`tailored and humane management actions.
`42.
`In the few HMAPs that BLM has developed, the HMAP affirms that BLM uses the
`HMAP to attain the mandate in the Wild Horse Act to establish a “thriving ecological balance”
`between and among wild horses, burros, and their habitat.
`43.
`The BLM has identified no other mechanism to attain the goals specific to the Wild
`Horse Act, including ensuring the humane treatment and, if necessary, capture of wild horses.
`B. National Environmental Policy Act
`44.
`A second statute, NEPA, 42 U.S.C. § 4321 et seq., governs decisions by the BLM
`to gather horses. NEPA requires federal agencies to take a “hard look” at the environmental
`
`
`
`
`
`Page 11 of 25
`
`
`
`
`Case 2:22-cv-01200-CDS-BNW Document 1 Filed 07/26/22 Page 12 of 25
`
`consequences before carrying out federal actions. Marsh v. Or. Nat. Res. Council, 490 U.S. 360,
`373-74 (1989).
`45.
`NEPA serves the dual purpose of, first, informing agency decisionmakers of the
`significant environmental effects of proposed major federal actions and, second, ensuring that
`relevant information is made available to the public so that it “may also play a role in both the
`decision-making process and the implementation of that decision.” See Robertson v. Methow
`Valley Citizens Council, 490 U.S. 332, 349 (1989).
`46.
`To meet these goals, NEPA requires a comprehensive Environmental Impact
`Statement (EIS) for “major Federal actions significantly affecting the quality of the human
`environment.” 42 U.S.C. § 4332(2)(C); 40 C.F.R. § 1501.3.
`47.
`To determine whether a proposed action will have significant effects, an agency
`may prepare an Environmental Assessment (EA). 40 C.F.R. § 1501.54. An EA is a “concise public
`document” that “[b]riefly provide[s] sufficient evidence and analysis for determining whether to
`prepare an [EIS].’” Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 757 (2004) (quoting 40 C.F.R.
`§ 1508.9(a)).
`48.
`Unlike the Wild Horse Act, NEPA does not impose any substantive obligations
`upon an agency but requires that an agency take a “hard look” at the environmental consequences
`of its decision-making. Robertson, 490 U.S. at 350.
`49.
`If in its EA the agency finds that the proposed action will not significantly affect
`the human environment, it may issue a finding of no significant impact (FONSI) in lieu of an EIS.
`Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1239 (9th Cir. 2005) (citing 40
`C.F.R. § 1508.9(a)(1)); see also 40 C.F.R. § 1501.6(e).
`50.
`A FONSI “briefly present[s] the reasons why an action … will not have a
`significant effect on the human environment and for which an [EIS] therefore will not be
`prepared.” 40 C.F.R. § 1508.1(1).
`51. When preparing an EA, agencies are only required to conduct brief discussions of
`reasonably feasible alternatives that are reasonably related to the purpose of the project. See
`
`
`
`
`
`Page 12 of 25
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`Case 2:22-cv-01200-CDS-BNW Document 1 Filed 07/26/22 Page 13 of 25
`
`Westlands Water Dist. v. U.S. Dep’t of Interior, 376 F.3d 853, 868 (9th Cir. 2004). Agencies need
`not “consider alternatives which are infeasible, ineffective, or inconsistent with the basic policy
`objectives for the management of the area.” Headwaters, Inc. v. BLM, 914 F.2d 1174, 1180 (9th
`Cir. 1990) (citing California v. Block, 690 F.2d 753, 767 (9th Cir. 1982)).
`52.
`Critically, an agency’s “obligation to consider alternatives under an EA is a lesser
`one than under an EIS,” and so long as “‘reasonable alternatives’ have been considered,” there is
`no “minimum number of alternatives that an agency must consider.” Native Ecosystems Council,
`428 F.3d at 1246 (finding sufficient the consideration of two alternatives including the no-action
`alternative).
`53.
`According to the BLM Handbook, if the BLM decides to implement the objectives
`of an HMAP by removing excess wild horses, it must prepare an environmental assessment to
`comply with NEPA for that specific gather plan. BLM Handbook, at p. 27-28; see id. at Chap. 7,
`p. 48 (the environmental analysis for gather plans should tier to HMAPs). (A gather plan that has
`gone through the NEPA process will be referred to as a “Gather-EA” throughout this Complaint.)
`54.
`BLM has determined that under NEPA, Gather-EAs are not required to solicit
`public scoping comments and are limited in scope to analyzing the proposed action’s effect on the
`human environment.
`55.
`Because the broad management of wild horses under an HMAP is also a federal
`action that may significantly affect the human environment, the BLM may prepare an HMAP-EA
`that analyzes herd management and the environmental impacts associated with a range of
`alternative herd management strategies for the herd and its habitat. Id. at Chap. 6, p. 38. (A
`finalized HMAP that has gone through the NEPA process will be referred to as an “HMAP-EA”
`throughout this Complaint.)
`56.
`Though the NEPA process may be used to analyze the HMAP’s potential impacts
`to the human environment, the NEPA process is one discreet part of the HMAP preparation process
`which, when completed, is intended to analyze the broad and long-term potential impacts to the
`wild horse herds and their habitats. See id. at Chap. 6, pp. 36-44 (Herd Management Area
`
`
`
`
`
`Page 13 of 25
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`Case 2:22-cv-01200-CDS-BNW Document 1 Filed 07/26/22 Page 14 of 25
`
`Planning).
`57.
`To further illustrate the distinction between an HMAP/HMAP-EA and a Gather-
`EA, the BLM Handbook indicates that the separate decision to gather and remove horses has a
`different appeal process than the appeals process for the HMAP generally. Id. at Chap. 7, p. 45.
`58.
`Additionally, a Gather-EA is not the proper analysis for the long-term management
`of wild horses and burros. Friends of Animals v. Culver, No. 19-3506 (D.D.C. Jun. 28, 2022)
`(holding that “BLM’s ten-year [phased gather-EA] exceeds its discretion, per statutory
`command”).
`59.
`Therefore, a Gather-EA simply cannot substitute an HMAP or an HMAP-EA.
`C. The Winnemucca District Resource Management Plan
`60.
`The Blue Wing Complex consists of 2,283,300 acres of land. The Blue Wing
`Complex is made up of five Herd Management Areas (HMAs), four Herd Areas (HAs), and other
`non-HMA areas. The HMAs are: Kamma Mountains, Seven Troughs Range, Lava Beds, Blue
`Wing Mountains, and Shawave. The HAs are: Antelope Range, Selenite Range, Trinity Range,
`and Truckee Range.
`61.
`The Blue Wing Complex is located in the Winnemucca District of Nevada and is
`therefore subject to the land use planning and management directives in the 2015 Winnemucca
`District Resource Management Plan (DOI-BLM-NV-W000-2004-0001-RMP-EIS).
`62.
`Appendix K of the Winnemucca District Resource Management Plan consists of
`Wild Horse and Burro Standards and Guidelines that were approved on August 30, 2007. The
`Standards and Guidelines state the following Implementation directives which require the
`development of HMAPs:
`Following adoption of the Standards and Guidelines for Wild
`Horses and Burros, subsequent planning decisions and management
`actions must be consistent with the Standards and Guidelines.
`Standards and Guidelines for Wild Horses and Burros as outlined
`above will be implemented through a multi-step process involving:
`
`1.
`Development of herd management area plans and
`establishment of long-term objectives for managing wild horses and
`burros and their habitat, initiation of the necessary management
`
`
`
`
`
`Page 14 of 25
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`Case 2:22-cv-01200-CDS-BNW Document 1 Filed 07/26/22 Page 15 of 25
`
`actions, monitoring to assess progress toward achievement of plan
`objectives; periodic adjustments of population levels to maintain
`AMLs; and periodic evaluation of management actions to assure
`they are being implemented and effective in achieving plan
`objectives.
`
`
`
`2.
`Herd management area plans (HMAPs) will be the vehicle
`for determining the management and objectives for the herds and
`their habitat. Assessments of wild horse and burro herds and
`individual animals will occur through periodic censuses of the
`animals as well as notatio