873 F.3d 914
D.C. Cir.2017Background
- Since 1975 the Forest Service managed the Devil’s Garden Wild Horse Territory; the original 1975 plan described two noncontiguous tracts (~236,000 acres) that did not include a ~23,000-acre "Middle Section."
- In the 1980s a Forest Service map began showing the Territory as a single contiguous unit of ~258,000 acres by incorporating the Middle Section; the 1991 Modoc Forest Plan described the Forest as having "one wild horse territory of about 258,000 acres" and incorporated the Wild Horse plan by reference.
- For roughly two decades thereafter the Service’s inventory reports and management actions treated portions of the Middle Section (e.g., Big Sage, Boles Meadow, Avanzino) as inside the Wild Horse Territory and set herd management figures for them.
- In 2012–2013 the Service concluded the Middle Section’s inclusion was an "administrative error," issued a Final Environmental Assessment and a Finding of No Significant Impact, and adopted a 2013 Wild Horse Territory Plan reverting to the 1975 boundaries (excising the Middle Section).
- Plaintiffs (American Wild Horse Preservation Campaign, Return to Freedom, Carla Bowers) sued under the APA, the Wild and Free-Roaming Horses and Burros Act, the National Forest Management Act, and NEPA; the district court granted summary judgment to the Service, and the D.C. Circuit reversed in part and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Service’s 2013 removal of the Middle Section was arbitrary and capricious for failing to acknowledge and explain departure from prior policy | The Service had a longstanding, formal practice and plan recognizing a single 258,000-acre territory; changing course without acknowledging/explaining is arbitrary | The Middle Section was never legally part of the Territory—its depiction reflected an administrative error or convenience, so no change occurred | Court: Held arbitrary and capricious; agency must acknowledge change and provide reasoned explanation before reverting to 1975 lines |
| Whether the Forest Plan amendment (excising ~23,000 acres) was a "significant" change under the National Forest Management Act requiring heightened procedures | The excision materially altered wild-horse management and triggered the Act’s formal amendment procedures | The change affected only ~1.5% of the 1.6M-acre Forest Plan and did not materially alter long-term multiple-use goals; thus non-significant | Court: Not a "significant" amendment to the 1991 Forest Plan (no heightened process required) |
| Whether the Service erred under NEPA by issuing a Finding of No Significant Impact instead of an Environmental Impact Statement | The Service ignored the real-world consequences of changing a two-decade management practice and thus failed to take a "hard look" at environmental effects on the horse population | The change was a correction of administrative convenience/error and would have no effect on-the-ground; FONSI appropriate | Court: NEPA analysis arbitrary and capricious—Service failed to identify relevant environmental concerns and take a hard look; remand for further NEPA consideration |
| Whether prior procedural or legal defects in the 1980s inclusion of the Middle Section nullify its later legal effect | Past procedural defects (if any) do not erase the subsequent formal recognition in the 1991 Forest Plan and decades of management; agency must still reckon with that history | Any past inclusion was unauthorized/error, so the 2013 correction simply fixed that mistake | Court: Even if original inclusion was unlawful, the Service could not ignore its subsequent formal recognition and long practice without reasoned analysis; cannot correct one procedural error by committing another |
Key Cases Cited
- Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016) (agency must provide reasoned explanation when changing longstanding practices)
- Fox Television Stations, Inc. v. FCC, 556 U.S. 502 (2009) (agency may not depart from prior policy sub silentio)
- Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (arbitrary-and-capricious standard and requirements for reasoned decisionmaking)
- Myersville Citizens for a Rural Cmty., Inc. v. FERC, 783 F.3d 1301 (D.C. Cir. 2015) (standard for reviewing agency decisions not to prepare an EIS)
- TOMAC v. Norton, 433 F.3d 852 (D.C. Cir. 2006) (review of agency FONSI requires ensuring no significant consequences were ignored)
- Northwest Envtl. Def. Ctr. v. Bonneville Power Admin., 477 F.3d 668 (9th Cir. 2007) (invalidating agency action for departing from long-standing practice without reasoned analysis)
- United States Telecom Ass'n v. FCC, 825 F.3d 674 (D.C. Cir. 2016) (agency may not change course without articulating reasons)