963 F.3d 1001
9th Cir.2020Background
- The Wild Free-Roaming Horses and Burros Act charges BLM with maintaining a thriving natural ecological balance on public lands and removing excess horses; BLM has broad discretion in management choices.
- In 2017 BLM found an overpopulation (~8,600 excess) in the Antelope and Triple B Complexes (NE Nevada) and adopted a ten‑year Gather Plan to reduce the breeding herd to appropriate management levels.
- To minimize permanent removals to long‑term holding, the Gather Plan authorizes gelding some males and releasing them to the range while also using sex‑ratio adjustments and fertility control for mares.
- The NAS 2013 report found limited data and was inconclusive about behavioral impacts of gelding; BLM began a separate Gelding Study in 2016 but results were not available when the Gather Plan received a Finding of No Significant Impact (FONSI).
- Plaintiffs (American Wild Horse Campaign and an individual) challenged only the geld‑and‑release component under NEPA, the APA, and the Act; the district court granted summary judgment to defendants and the Ninth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BLM had to prepare an EIS for the Gather Plan under NEPA | Gelding-and-release may significantly affect the environment; five NEPA intensity factors require an EIS | BLM analyzed context and intensity in an EA, addressed comments, and reasonably concluded impacts are not significant (FONSI adequate) | Court held no EIS required; FONSI upheld |
| Whether effects of gelding are "highly uncertain" or "highly controversial" under NEPA | Scientific uncertainty and expert objections create substantial questions about significant impacts | Available literature, NAS conclusions, and BLM’s analysis support reasonable predictions; uncertainty not "highly" so as to require EIS | Court held effects are not highly uncertain or controversial; NEPA threshold not met |
| Whether BLM acted arbitrarily by authorizing gelding before Gelding Study results or by failing to address expert comments | BLM should have waited for the Gelding Study and should have explicitly engaged all expert criticisms | BLM took the required "hard look," explained study timing, responded to comments, and need not address every expert opinion in detail | Court held BLM’s process was not arbitrary or capricious; procedural challenges fail |
| Whether BLM violated the Wild Free‑Roaming Horses and Burros Act or ignored alternatives (e.g., vasectomy) | Gelding could contravene the Act’s mandates or BLM failed to adequately consider less‑impactful alternatives | BLM consulted NAS, considered alternatives, and provided reasoned rejection of vasectomy given uncertainty and risks | Court held BLM complied with the Act; choice of gelding permissible |
Key Cases Cited
- In Def. of Animals v. U.S. Dep’t of Interior, 751 F.3d 1054 (9th Cir. 2014) (BLM has broad discretion in wild‑horse management and NEPA review standards)
- Ctr. for Biological Diversity v. Kempthorne, 588 F.3d 701 (9th Cir. 2009) (agency scientific predictions may be upheld despite uncertainty)
- Envtl. Prot. Info. Ctr. v. U.S. Forest Serv., 451 F.3d 1005 (9th Cir. 2006) (agency must take a "hard look" but minor predicted effects may obviate an EIS)
- Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208 (9th Cir. 1998) (EA raises EIS requirement when substantial questions exist about significance)
- Ctr. for Biological Diversity v. Nat’l Highway Traffic Safety Admin., 538 F.3d 1172 (9th Cir. 2008) (any single NEPA intensity factor can render an action significant)
- Bark v. United States Forest Service, 958 F.3d 865 (9th Cir. 2020) (agency must engage with conflicting expert evidence or risk arbitrariness)
- Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644 (2007) (courts may uphold agency decisions of less‑than‑ideal clarity if the path is reasonably discernible)
- Ocean Advocates v. United States Army Corps of Engineers, 402 F.3d 846 (9th Cir. 2005) (agency arbitrary where available data not collected and severe effects evident)
- Natl. Parks & Conservation Ass’n v. Babbitt, 241 F.3d 722 (9th Cir. 2001) (uncertainty plus evidence of definite adverse effects can require an EIS)