In Defense of Animals v. U.S. Department of the Interior

party Each shall bear its proceedings. appeal.

own costs on part;

AFFIRMED in REVERSED part.

and REMANDED in ANIMALS;

IN OF DREAM- DEFENSE AND

CATCHER WILD HORSE BUR SANCTUARY; Clarke; Barbara

RO Hanson; Hay, Linda

Chad Plaintiffs-

Appellants,

v. DEPARTMENT the INTERI

U.S. OF

OR; Management; Bureau of Land

Sally Jewell,* Secretary of the U.S.

Department Interior; Neil

Kornze,** Director of the Bureau of Management; Collum,***

Land Ken Manager Eagle

Field Lake Field

Office, Defendants-Appellees, International;

Safari Club Safari Club Foundation,

International Intervenor

Defendants-Appellees.

No. 12-17804.

United States Court of Appeals,

Ninth Circuit.

Argued Aug. and Submitted 2013. May

Filed * Sally predecessor, Jewell is substituted for Management. R.App. her of Land Fed. P. Salazar, 43(c)(2). Secretary Kenneth L. of the Interi- 43(c)(2). R.App. or. Fed. P. *** predeces- Ken Collum is substituted for his ** sor, Barron, predeces- Neil Kornze Dayne Manager Eagle is substituted for his as Field sor, Abbey, 43(c)(2). R.App. Robert as Director of the Bureau Lake Field Fed. P. Office. the environ- CA, protect must act to Fazio, for that land Ridge, Cedar

Rachel M. ment. Plaintiffs-Appellants. whether those stew- Attorney This case is about Moreno, Assistant

Ignacia S. rules and Congress’s followed Zahedi, De- ards have General; United States Nancy regulations acting Interior, agency’s their own Region- Office of partment of Sato, sympathetic, of these even Petersen, thin the herds Solicitor; Ayako Erik E. al voracious, animals. but Depart- inspiring, Haag, R. United States and Mark Justice, Environment & Natural ment of non-profit organizations Plaintiffs —two D.C., Division, for Washington, Resources wild horses and protecting dedicated Defendants-Appellees. burros, organiza- and members of these grant court’s appeal the district Anna Seid- Burdin and Douglas Scott tions— summary judgment to the United States International, man, Washing- Club Safari Bu- of the Interior and the Department ton, D.C., Intervenor-Defendants-Ap- (col- (“BLM”) Management Land reau of pellees. “Defendants”) regarding lectively roundup, “gather,” approximately or 1,600 horses and 160 burros from the Management Area Twin Peaks Herd (“HMA”) bor- on the California-Nevada violated Plaintiffs claim the der. Bur- Free-Roaming Horses and the Wild SCHROEDER, MARY M. Before: (“the Act”) the National ros Act and Envi- RAWLINSON, B. and JOHNNIE (“NEPA”). Policy Act The dis- ronmental BEA, Judges. T. CARLOS Circuit no violation of either trict court found AFFIRM. statute. We OPINION BEA, Judge: Circuit Background are mustangs—and burros Wild horses— roundup out of a of wild This case arises heritage nation’s from the part of our BLM. and burros The horses West; Congress heritage American has August Septem- in and roundup place took That these animals sought preserve. In 2010 on the Twin Peaks HMA. ber spaces appeals roam the Western should 1981, designated the Twin Peaks the BLM lover and historian in each of to the nature 800,000 nearly acres and HMA— us. land on either side of the Califor- private trample. But animals eat and these for the nia-Nevada border —as suitable nation, open in the wide West of our Even maintenance of wild horses and long-term are just forage; there is so much there authority to its under burros. Pursuant un- many also vulnerable cultural artifacts manag- Act,1 charged the BLM is with derfoot. to “achieve and ing the Twin Peaks HMA thriving ecological natural bal- multiply. And when maintain

These animals also 1383(a). land, The BLM 16 U.S.C. many them in limited ance.” too abound goal, part, by estab- accomplishes this eongressionally-appointed stewards death; they accomplish this are to be Free-Roaming and and to 1. The Wild Horses Burros 1331-1340, found, Act, presently enacted in 16 U.S.C. was area where considered in the general purpose pro- and states its system integral part the natural as an free-roaming tecting horses and burros "wild § 1331. public lands.” 16 U.S.C. harassment, branding, capture, or [] from steadily despite increased nine Management gath- Levels BLM lishing Appropriate (“AMLs”) consequent ers In populations May of both native and removals. horses, burros, challenged gather, wild before the species including — animals, 2,303 wildlife—and introduced HMA home to approximately other was (including burros, as livestock cattle and such wild horses and 282 or close to § 4710.3-1. The BLM sheep).2 43 C.F.R. 300% more wild horses and 240% more an HMA when the animals from permissible removes than the highest burros num- the established population exceeds AML. respective ber of their AMLs. At Act, the BLM must remove time, Under the that, projected the BLM if left un- following excess animals in the “or- these checked, wild population horse first, priority”: the BLM “shall der and 6,000 8,000 HMA could exceed within old, sick, or lame animals to be order years. situation, ten Compounding this destroyed in the most manner humane BLM, according to the wild horses were second, BLM possible”; ..cap- “shall consuming three to five times as much additional excess an- ture[ ] remove[ ]” forage as was allocated for their use. The maintenance,” private including imals “for that, unchecked, predicted if left this third, adoption; the BLM “shall ... de- overpopulation of wild horses and burros stroy[ additional excess animals.3 ]” impacts would cause “serious to soil stabili- 1333(b)(2). ty, vegetation, (springs water sources creeks), habitat,” and wildlife and “would the BLM first set AMLs for availability not allow for sufficient of for- horses and burros on the Twin Peaks age and water for either wild horses or then, adjusted HMA. Since it has these other animals.” The BLM also noted that degra- AMLs several times to address the the “increased of wild numbers wetland At riparian dation of sites.4 past years appear[ed] over the five to be gather, the time of the 2010 the AML having significant impact a adverse [on the Twin Peaks HMA set amount for was sites.”5 cultural] at 448-758 wild horses and 72-116 burros.

This amount was set 2001 and was 2010, In May soliciting after comments Eagle confirmed in the 2008 Lake Re- sources, in part from 250 and based Management Plan. source predictions, BLM BLM’s stated the re- 1998, 157-page Environmental Assess- population Since the of wild horses leased (“EA”) HMA and burros on the Twin Peaks HMA has ment for its Twin Peaks Wild species unadopted, separate There is a AMLfor each wild horses and burros in the care 2. given Management HMA. The AML for wild horses is Bureau of Land or its wild contractors.”). defined the BLM "as number of desig- that can be sustained within a nated HMA which achieves and maintains a BLM, According "riparian 4. to the and wet- thriving ecological keeping natural balance in and land sites” include both "lentic” "lotic” management concept multiple-use with the springs sites. Lentic sites consist of for the area.” creeks, streams, seeps. Lotic sites consist and reservoirs. noted, "Congress the district court has As extermination, appropriated never funds for 5. "Cultural sites” refer to areas and artifacts maintenance, opposed ongoing to of excess which reflect the Twin Peaks' American Indi- adopted.” horses even if not In Defense of history. that over The BLM has estimated Interior, Dep’t Animals v. U.S. 1,500 see, cultural exist within the Twin (E.D.Cal.2012); such sites F.Supp.2d HMA, 111-88, including quarries, tool-stone Peaks e.g., Pub.L. 123 Stat. rockshelters, (2009) prehistoric camp pe- sites and (“Appropriations herein made shall (rock drawings), healthy, troglyphs and trails. not be available for the destruction of (male-to-female) (“Gather ratio, and the re Plan mares Burro Gather Horse and Plan”). injected mares would be with an leased impacts associated “To reduce immunocontraceptive, Porcine Zona Pellu of wild horses overpopulation [and with (“PZP”), cida which would reduce their riparian re- rangeland that ensure to] fertility years. for two meeting health capable of land sources are standards,” to remove proposed the EA The EA described the actions the from the horses and burros excess wild helicopter gather take to would ensure proposed The EA noted HMA. unnecessarily process would not stress time to “needed at this balance action was capture animals and maintained that the with oth- populations and burro horse facilities, methods, traps, holding equip- habitat, resources, including wildlife wil- er ment, safety procedures, and administra- values, study cultural re- area derness comply tion of PZP would with the BLM’s sources, grazing, livestock and soil for such Operating Standard Procedures vegetation resources.” provided The EA a detailed gathers. also analysis gather plan of an alternative ana

According proposed to the action fertility any would not involve control EA, attempt the BLM would lyzed by the measures, an alternative that would use 2,300 gather up wild horses and 210 only fertility control measures but no herd HMA and burros from the Twin Peaks relocation, thinning or a no-action al- then return a certain number of would EA poten- ternative.7 The examined the both animals to the HMA such tial these alternatives on the impacts of remaining populations total were within environment, looking specifically HMA’s planned The BLM designated AMLs. impact on areas of critical environmen- helicopter cap “a drive method of use concern, resources, tal cultural livestock ture, helicopter with occasional assisted grazing, spe- noxious and invasive weeds roping from horseback” to steer the ani cies, sites, riparian and wetland soil re- “trap mals into sites” where the animals sources, special plants, upland vege- status they would be held until could be trans tation, wildlife, study native and wilderness ported temporary holding facilities on areas. temporary holding in the HMA. Once facilities, animals, the BLM would feed the July based on its detailed con- sex, sort them based on and examine the EA, sideration in the the BLM issued a deciding animals’ conditions before wheth “Finding Significant Impact” of No (“FONSI”) er individual animals should be euthanized on the environment for the injury age, put up adop Plan, gather because or proposed from the Gather tion, or returned to the HMA.6 To curb prepare and therefore did not an environ- (“EIS”).8 increases, population impact future the released mental statement On the day, it wild horses would have a 60:40 studs-to- same the BLM announced Remember, although impracticable the Act authorizes the BLM concluded were either or healthy wild “humane” destruction of excess unresponsive to the need to remove excess burros, Congress prohibited horses and has animals. spent the authorization of funds to be to do supra adopted, See n. 3. If not so. B, 8.As discussed in more detail Part infra healthy private transfers the excess animals to agency complete requires NEPA to an EIS facilities, long-term holding which consist of only questions when substantial are raised as grassland pastures averaging the. Midwest in proposed project "may to whether a cause approximately per 10-11 acres horse. significant degradation of some human envi- factor.” Pub. v. ronmental Nuclear Citizen gave 7. The EA brief also consideration Comm’n, (9th Regulatory 929 573 F.3d alternatives, additional which the fourteen gather and most favorable to the implement proposed nonmoving party, would whether the district court correctly applied to comments it had re- responded also EA. relevant substantive law and whether ceived on the any genuine there are issues of material pro- Before the BLM conducted City, fact.” Balint v. Carson 180 F.3d gather, against Plaintiffs filed suit posed (9th Cir.1999) (en banc). 1047, 1050 enjoin implementation the Defendants proposed gather. alleged of the Plaintiffs Because neither NEPA nor the gather would violate the Act proposed Act judicial contain an internal standard of EIS-requirement and the of NEPA. The review, the Administrative Procedure Act court denied Plaintiffs’ motion for district governs this court’s review of the BLM’s injunction, preliminary ap- and Plaintiffs actions. v. Army Ocean Advocates U.S. pealed. (9th Corps Eng’rs, F.3d 858-59 Cir.2005). This court must set aside the this court de- panel After a motions actions, findings, BLM’s or conclusions if emergency injunctive nied an motion for they “arbitrary, are capricious, abuse of 10, 2010, pending appeal August relief discretion, or otherwise not in accordance place during August took gather 706(2)(A). with Al law.” U.S.C. ultimately September of 2010. The BLM though “searching this review is and care 1,639 gathered approximately wild horses ful,” arbitrary capricious standard parties agree and 160 burros. The narrow, and this court cannot substitute post-gather, 793 wild horses and 160 bur- judgment agency. its own for that of the remaining ros resided on the HMA.9 The (citation Advocates, Ocean 402 F.3d adop- wild horses were made available for omitted). An agency’s decision is arbi sale, placed long-term holding tion or or trary capricious if it fails to consider facilities. it, important aspects of the issue before if 15, 2011, August panel On this denied it supports explanations its decisions with injunction preliminary appeal Plaintiffs’ evidence, contrary to the or if its decision injunctive sought because the relief had inherently contrary implausible is either or become moot. Animals v. Defense of governing law. The Lands Council v. Interior, Dep’t 648 F.3d 1012 U.S. (9th Cir.2005). Powell, Cir.2011). parties The then filed cross summary judgment motions for in the dis- Analysis granted trict court. The district court De- Free-Roaming A. Plaintiffs’ Wild summary judgment, holding fendants Horses and Burros Act claims did not violate the Act or timely appealed. NEPA. Plaintiffs Secretary Act of the The directs (“Secretary”) “protect Interior of Review Standard manage free-roaming horses and bur- ” grant components This court reviews de novo a lands.... ros 1333(a). BLM, summary judgment. Guatay Christian 16 U.S.C. The as the Fellowship Cnty. Diego, designate Secretary, manage v. San of the “shall Cir.2011). in a free-roaming We “must deter wild horses and burros mine, viewing light designed the evidence in the manner that to achieve and BLM, Cir.2009) (quoting Biological Diversity According fifty-eight and Ctr. to the horses Admin., one burro were returned to the Twin Peaks Highway Safety

v. Nat’l Traffic HMA after the and two horses were (9th Cir.2008)). F.3d pre-existing, euthanized on the HMA due to injuries. debilitating leg animals,” Act removing In “excess ecological bal- natural thriving a maintain to take action the BLM Id. The BLM instructs lands.” public ance inventory of a current also “maintain until following priority, must order and in the and burros on free-roaming horses so wild have been removed all excess animals lands.” public areas given ecologi- thriving natural as to restore 1383(b)(1). Congress explained: As § range, protect and to the cal balance inventory shall be the deterioration associated purpose range of such from

The as to whether overpopulation: make determinations to: with exists and overpopulation an and where sick, (A) old, order Secretary The shall taken to re- action should be whether in the destroyed to be or lame animals animals; appro- determine move excess possible; humane manner most levels of wild free- management priate (B) such Secretary The shall cause on these ar- roaming horses and burros free- of additional excess wild number lands; and determine public eas to be hu- roaming horses and burros management levels appropriate whether pri- removed for manely captured and by the removal or be achieved should he maintenance and care for which vate animals, or other of excess destruction demand exists adoption determines (such sterilization, or natural options levels). population controls on (C) Secretary shall cause additional The Id. and free-roaming wild horses excess manage- provided “[a]ll Congress adoption for which an demand burros be at the minimal ment activities shall does not exist to be qualified individuals 1333(a). ....”§ Act Yet the feasible level in the humane and cost destroyed most population if the current provides also possible. manner efficient overpopulation “an inventory reveals that added). 1333(b)(2)(emphasis § lands,” public area of the given exists on a arguments why make five Plaintiffs that “action is if the BLM determines by implementing Act BLM violated the animals,” excess necessary to remove argu- of these proposed gather, but none immediately remove excess BLM “shall prevail. ments achieve range from the so as to animals First, claim the Plaintiffs management levels.” appropriate determine, gather, that failed to before the 1333(b)(2). Act defines “excess ani- The and bur there were “excess” wild horses or bur- free-roaming “wild mals” as However, as ros on the Twin Peaks HMA. removed from an ros ... which must be noted, AMLs for earlier the BLM had set preserve and maintain area order HMA horses and burros on the thriving ecological natural balance through Eagle the 2008 Lake Resource relationship in that area.” multiple-use 72-116, Plan at Management 448-758 1332(f). Thus, overarching while the determined, prior to the respectively, and protect the Act is to wild horses purpose of vastly AMLs had been gather, these branding, “capture, burros from EA, specifical the BLM exceeded. death,” the BLM is harassment or 1,855 excess wild ly that there were found to remove wild horses and burros required within the horses and 210 excess burros lands when given from a area of undisputed fact that the HMA.10Given exists. overpopulation Burro Coalition Colorado Wild Horse and determination of AMLsfor the from 10. This careful burros, Salazar, (D.D.C.2009). F.Supp.2d and the calculation of wild horses and 87 v. distinguishes population, this case the excess Rather, populations greatly- phrase “preserve horse and burro the use of the wild respective at the and maintain” in the exceeded their AMLs definition of “excess carefully-docu- suggests and the animals” gather, may time of the that the BLM de- necessary mented concerns about the deterioration of termine removal is to ensure riparian thriving areas and cultural sites caused that the current ecological natural as well the likelihood of does overpopulation, balance not deteriorate in the future. forage growing insufficient to sustain the held, Additionally, as the district court herd,11 properly the BLM decided action the statute determines “excess animals” necessary to restore the AMLs.12 was through the use of AML levels. In De- that, Interior, Plaintiffs claim to find that there Dep’t Animals v. U.S. fense of animals,” F.Supp.2d (E.D.Cal.2012); were “excess the BLM was re- 1333(b)(2) (if quired to determine that there was not a overpopula- U.S.C. “an exists,” “thriving ecological natural balance” tion and if the BLM determines presence necessary HMA due to the of wild horses that “action is to remove excess animals,” gather. and burros at the time of the the BLM immediately “shall re- 1332(f)(2), Plaintiffs cite 16 U.S.C. which move range excess animals from the so as defines “excess animals” as appropriate management those animals to achieve lev- els.”) added). in (emphasis which “must be removed from an area Although the preserve thriving provides order to and maintain a statute also action “[s]uch ecological argu- natural balance....” This shall be taken ... until all excess animals ment fails. Preservation efforts can hard- have been removed so as to restore a ly balance,” require prior thriving ecological destruction of what is to natural preserved. Simply logical because removal is most reading phrases of those two necessary required “preserve together when is that the BLM must achieve a “thriving ecologi- “thriving maintain” such a natural ecological natural balance” cal maintaining balance” does not mean that removal relevant AMLs. 1333(b)(2). can only showing way, occur when there is a In this “AML is a vehi- longer [thriving such balance no exists. cle used to move towards a natu- Salazar, Indeed, proposed permanent implement the BLM 11. in its decision to Plan, predicted removal of the entire wild horse herd from Gather the BLM that if no Colorado, AMLs, Douglas the West Herd action were taken to restore the Area but population wild horse ... failed to establish an AML for the herd or to would “crash based water, forage on a lack of from demonstrate there were excess numbers competition extreme and stress to the ani- public of wild horses on the lands. Id. at 95. nonprofit organization challenged mals.” pro- A posed gather require- as violative of the Act's EA, keep inventory ment that the BLM an of wild According riparian/wet- to the some public horses on lands and determine that meeting [Riparian land areas were "not removing there are excess Proper animals before Functioning Condition] standard” in agreed them. Id. 89. The district court May "[h]igh 2010 because of utilization and proposed gather, and held that the which had trampling by excess numbers of wild horses.” Moreover, planned any been without determination that "many [riparian/wetland] ap- sites overpopulation existed or that pealed] there were to be in a trend and downward lands, excess wild horses on the violat- becoming severely [were] at risk of more de- Here, contrary, ed the Act. Id. at 98. to the graded if level of use from [the then-current] statutory duty by keeping Finally, the BLM fulfilled its [was] not curtailed.” inventory popula- of wild horse burro BLM determined that increased num- "[t]he making years tions on the Twin past Peaks HMA and five bers of wild horses over appear[ed] having significant detailed calculations of the excess animals on to be adverse impact the HMA. sites.” [cultural] balance], animals on HMA by porary gathering and a of the trigger ecological ral eu- to determine which animals should be is alerted to address the BLM which [] animals thanized and which should Ani- population imbalance.” Defense of adoption. made for The BLM available 1192; mals, Am. see also F.Supp.2d “the Gather Plan’s therefore claims that Watt, Ass’n, Inc. v. Horse Protection animals temporary gathering of (D.C.Cir.1982) (The Act F.2d itself a removal and is [HMA] is not ‘im- horses ‘shall’be removed “directs that by governed therefore not Section determines, Secretary mediately’ once 1333(b)(2)’s provision.” priority order and he on of whatever information the basis agree We the BLM. with decision, of his that an has at the time The as it Act does not define “remove” exists.”) (emphasis omit- overpopulation 1333(b)(2) prescribe § used in to ted). Thus, on correctly the BLM relied order for excess wild removal of that there excess the AMLs to decide were However, and the Act direct burros. does MA, wild burros on the I and horses and “immediately remove the BLM to excess natural “thriving assertion that Plaintiffs’ 1333(b)(2) § range.” animals from ecological being was maintained balance” added). Moreover, (emphasis none of the I MA on the Twin Peaks before the provided three methods for removal is irrelevant.13 (eu- provision priority” “order and old, sick, animals; thanization or lame Second, Plaintiffs contend the maintenance; private and destruction priority” BLM violated the “order and animals) additional contemplate excess Act, provision 16 U.S.C. “removal” animals temporarily 1333(b)(2),14 to by failing identify and capturing animals on the those HMA. “old, sick, or euthanize the lame” animals Therefore, interpret we the term “re- “capturing” on the HMA or “remov 1333(b)(2) before §in mean move” the trans- ing” adoptable horses burros. and fer of and burros wild horses from the responds The BLM the term “re public they once lands on which lived 1333(b)(2) interpret move” in should be maintenance, private private lands for or permanent ed to refer to the removal pursuant animals destruction of such HMA, 1333(b)(2)(A) (C).15 from the the tem- or Under this in- animals not (A) old, sick, rely- Although Secretary 13. fault the order Plaintiffs BLM for The shall or ing destroyed “decade-old” AMLs from without lame in animals to be the most conducting analysis, Eagle possible; a new the 2008 humane manner (B) Management Secretary Lake Resource Plan “validated" The shall cause such number Regardless, nothing free-roaming those AMLs. in the Act wild additional excess hors- requires humanely captured the BLM to determine new AMLs es burros to be every private current conditions based on time removed for maintenance and care adoption action BLM decides to take to restore the for which he determines an de- ...; already-established AMLs. mand exists (C) Secretary The shall cause additional ex- 1333(b)(2) provides, in Section relevant free-roaming cess horses and burros part: adoption by qualified for which an demand Secretary Where the determines ... destroyed to be individuals does not exist given overpopulation exists on area of the humane and cost efficient manner most necessary lands and that action is possible. animals, excess he remove shall immediate- added). (emphasis ly range animals so remove excess from the EA, appropriate management interpreted 15.In the to achieve lev- the BLM "remove” taken, permanent els. Such action shall be in the to refer to the removal of the HMA, priority, following animals while it used order until all excess from the the term temporary "gather” herding animals have been removed ... to describe gather’s temporary- Third, terpretation, argue Plaintiffs that because roundup nearly of all the wild gather likely horses and the will result in a level of on the HMA was not itself a “re- burros livestock grazing that is allegedly three governed by moval” that is the order and higher times than the level of wild horse Act, priority provision of the and there- grazing, and burro the gather violated the provi- fore the BLM did not violate this purported Act’s mandate that the Twin sion. In See Animals v. Sala- Peaks HMA managed be “principally but Defense of zar, (D.D.C.2009) 89, 675 F.Supp.2d necessarily not exclusively” for the welfare (holding rounding up majori- the vast of wild horses and rely burros. Plaintiffs ty sorting of a wild horse herd for in a on language the Act which defines nearby holding facility does not “remove” “ranges,” designated which are to be all public horses from the lands in viola- Secretary as “sanctuaries for pro priority tion of the Act’s order and provi- preservation” tection and of wild horses sion). burros, 1333(a), § see 16 U.S.C. “the amount of land ... which is devoted sum, the BLM’s actions fell within principally but not necessarily exclusively the discretion which courts have recog- welfare, to” wild horse and burro see nized the BLM has to remove excess ani- 1332(c). § We need not determine wheth mals from an HMA.16 faced with the When gather er the provisions violated these of having large percent- task of a remove the Act because the record is bereft of an age of the wild horse and population burro essential AMLs, designation foundational to maintain of the BLM reason- fact— the Twin ably “range” by Peaks HMA as a determined that the most effective 1333(a).18 way Secretary pursuant § to fulfill statutory its mandate Ac was to attempt cording to temporarily summary the BLM’s of public entire Plan, making herd before comments for the determinations as to Gather the Twin euthanized, which animals should be Peaks HMA has not designated which been a ” animals should permanently removed “wild horse and burro range the Sec adoption, via retary, and which animals presented should be nor have Plaintiffs any released back on to the HMA.17 suggesting evidence that the Twin Peaks holding purposes degree discretionary authority of the animals for pur- for the diagnosis. poses identification and protection, management, We need not and control what, any, determine if level free-roaming of deference this of wild horses and burros on the (citation lands”) omitted). determination is due because we have con- plain language cluded that the of the statute is See, Chevron, U.S.A., ambiguous. not Inc. v. argument related Plaintiffs’ that the BLM 17. Council, Inc., 837, Natural Res. 467 U.S. impermissibly removed non-excess wild hors- Def. 842, 2778, (1984) 104 S.Ct. 81 L.Ed.2d 694 temporarily gath- es from the HMA when it (“If clear, Congress the intent of nearly is is the ered all animals fails because we matter.”). end of the temporary roundup hold that the initial the HMA did not a constitute "removal” un- 16.See, Found., e.g., Kempthorne, der the Cloud Inc. v. Act. (D.Mont. July 2008 WL at *11 2008) ("The Agency regulations distinguish BLM has broad discretion under between Act, areas,” arbitrary capricious management and the stan "herd such as Twin HMA, highly dard managed of review from the APA is defer Peaks which need not be ential”); exclusively” Am. "principally necessarily Horse Protection Ass’n v. but not Friz zell, (D.Nev.1975) F.Supp. for the welfare of wild horses and burros and (denying preliminary injunction, ranges” motion for "wild horse and burro which must be 4710.3-1, permitting roundup go managed. of 400 wild horses to so See 43 C.F.R. forward, noting given "high the BLM 4710.3-2. Therefore, thriving ecological bal- maintain a natural designated. been so HMA has HMA, 1333(a), but also ance” from might stem any requirements “immediately” remove excess animals in the Act do not “range” definition “that an over- when the determined Twin HMA. apply to the Peaks 1333(b)(2). population exist[ed].” Con- Fourth, that the argue Plaintiffs not that the gress could have intended the mandate that the BLM violated Act’s management would requirement “minimal” at a “min manage BLM horses and burros ignore the BLM to other statu- force these level” BLM “decid imal feasible when the court must tory mandates. Given that this helicopters capture to chase with and ed BLM’s the expertise defer to the under of from the up to 100% the wild horses APA, Salmon Citi- see River Concerned HMA, Robertson, [of Peaks about 80% remove[ ] Twin 32 zens v. F.3d 1356 herd], Cir.1994), inject immunocon we hold that the BLM reason- the mares with interpreted its that ably statutory directive and the traceptives, unnaturally skew sex at a management be “minimal feasible lev- provide The Act that “[a]ll ratio.” does it the implement el” when decided to Gath- mini management activities shall be at the light overpopulation er Plan in at the 16 U.S.C. mal feasible level....” gather time of the the fact that the and 1333(a). adequate § But Plaintiffs do not only inaction would have to further led ly statutory into account full lan take the population detrimental increases.19 provides manage which guage, that “[a]ll activities shall at the minimal ment Fifth, incorrectly ar Plaintiffs ... level and carried out feasible shall be storage that the gue unadoptable excess protect ecological long-term facilities holding in order the natural wild horses by private the owned contractors violated balance all which inhab species of wildlife ” Act. the Act the prohibit While does 1333(a) (emphasis such lands.... it relocating wild “to from horses and burros added). Given that BLM’s determination they areas of the where do lands overpopulation the of wild horses and bur exist,” presently not Act not pro the does ecological threatened the natural bal ros relocation 16 private hibit such lands. HMA, reasonably the it ance on deter added). (emphasis U.S.C. 1339 Because gather necessary the mined that was nothing in the Act suggests Congress thereby the AMLs the protect restore unadopta intended to bar the relocation HMA’s natural ecological balance. private longterm ble horses to lands for Moreover, BLM had simulta the holding, prohibi we decline to read such a only neous duties not “to achieve and into Act.20 tion the soned, rapid population growth, 19. Given the BLM's chosen action constitutes management court also the BLM's district reasoned that at the level ''minimal” feasible reproduction through to slow im- "efforts ... because the was intended to reduce munocontraceptives administered to released frequency gathers. the size of future mares, Animals, through a skewed sex ratio F.Supp.2d at 1194. Defense stallions, pur- mares to within the Act’s [] Moreover, Circuit has ex- appeal, the D.C. Al- view. ...” On Plaintiffs claim that "[sjilence may permission plained, signal ... proposed gather plan, B to ternative suggest proscription,” than can rather removing which called for with- excess horses controls, Congress agency fertility “question has left out would have achieved EPA, However, Cnty., impact. but discretion.” Catawba N.C. v. same result with less (D.C.Cir.2009) (citations population and in- the EA concluded that without F.3d controls, Here, omitted). quotation population the wild would ternal marks horse grow interpretation at a faster animals would una- rate and more BLM’s of the statute —that may doptable private need to be removed the future to maintain be relocated to correctly long-term holding- the AMLs. As the court rea- lands for defer- district —deserves land-owners, BLM, contend that not private Plaintiffs also “ad- minister” the they lands because effectuate privately-owned holding housing facilities day-to-day operations direct “public animals are lands” because excess land.21 “any “public the Act defines lands” as therefore Secretary

lands administered of the We hold the BLM did not violate Act by implementing the 2010 through [the BLM].” Interior U.S.C. gather on the Twin Peaks HMA. 1332(e) added). (emphasis Plaintiffs claim the BLM “administers” these facili B. Plaintiffs’ NEPA claims lands, by exercising oversight over the ties appeal Plaintiffs also the district court’s thereby converting “pub the facilities into holding that the BLM did not violate the may lic to which excess animals not lands” National Environmental Policy Act argument be transferred. This fails. To (“NEPA”). Animals, In 909 Defense of manage “administer” means “to or con F.Supp.2d at 1198. Plaintiffs contend that (4th Dictionary duct.” Black’s Law 65 the BLM violated NEPA declining to ed.1968); Af-Cap, Inc. v. Chevron Over prepare an environmental impact state- (9th Ltd., 1080, 1088 (Congo) seas 475 F.3d (“EIS”) failing ment to respond ade- Cir.2007) (“When determining the plain quately to scientific regarding evidence the meaning may of language, we consult dic adverse effects of the immunocontracep- definitions.”). tionary Although Plaintiffs tive PZP. suggests cite a memo which that two BLM NEPA, 4321-4370, §§ 42 U.S.C. inspected officers the wild in one horses requires certain procedural safeguards be long-term holding facility by counting the agency may fore an takes an action that observing number of horses and their con significantly affect the environment. In ditions, such isolated references to the particular, requires agen NEPA federal oversight practices BLM’s do not establish prepare cies to an EIS discusses the “manages that the BLM or conducts” the environmental “major ramifications for land on which the animals reside. On the significantly affecting Federal actions 22 contrary, suggests quality the evidence human 42 environment.” precisely "gap” Congress trary Congress's ence because of the intent to allow these hors- free-roaming,” has left in the statute. See Schneider v. Cher- es to remain "wild and (9th Cir.2006). toff, point noting 450 F.3d 960 Con- district court rebutted this gress euthanizing private has barred the BLM from how to the ... "transfer facilities healthy appear excess horses for which there is no would to be far more consistent with adoption pursuant free-roaming] demand to 16 U.S.C. [wild behavior than 1333(b)(2)(C) by continually declining § options disposing the other of excess hors- Act; appropriate contemplated by funds for the destruction of these es and burros See, 111-88, euthanasia, e.g., namely, adoption, animals. Pub.L. No. 123 or commercial (2009) Animals, (“Appropriations Stat. F.Supp.2d 2907 sale.” In 909 Defense of Indeed, made herein shall not be available for the at 1194 n. 7. the record indicates that healthy, unadopted, grassland pastures private destruction of at the facilities average per and burros in the approximately care the Bureau of Land 10-11 acres ani- Thus, contractors.”). Management or its mal. properly determined that relocation of provides 22. 40 C.F.R. 1508.14 that the term private longterm these animals to facilities for interpreted “[h]uman environment shall be holding necessary because the Act simulta- comprehensively to include the natural and neously mandates that the BLM remove “ex- physical relationship environment and the immediately cess" horses to maintain the es- people with that environment.” In the con- 1333(b)(2). tablished AMLs. See 16 U.S.C. gathers, text of wild court has inter- horse this plaintiffs argue preted encompass 21. While that transfer of the "human environment” to long-term holding solely impact] horses to [the facilities is con- “not environmental 1068 4332(2)(C). ac- consequences whether ‘hard look’ at the of its To decide

U.S.C. agency’s required tions, an EIS is because based on a consider- [its decision] quality “significantly affect[s] action factors, provided ation of the relevant environment,” may agency an the human convincing to ex- a statement of reasons an Assess prepare first Environmental why project’s impacts insignifi- are plain (“EA”), “concise ment which is a Prot. For- cant.” Envtl. Ctr. v. U.S. Info. “[b]riefly provide that must document” (“EPIC”), 1005, 1009 est Serv. analysis for deter evidence and sufficient Cir.2006) (citation quota- and internal mining prepare [EIS].” whether omitted). making marks this as- tion 1508.9(a)(1); Mountains Blue C.F.R. sessment, our we must not “substitute Blackwood, Project Biodiversity v. for that of judgment agency.” Okano- (9th Cir.1998). 1208, 1212 sub When F.3d Williams, gan Highlands Alliance v. to whether questions stantial are raised as (9th Cir.2000). 468, 473 F.3d proposed project “may significant cause degradation of some human environmental Agencies fac consider two broad factor,” EIS is required. Pub. Citizen may tors to determine an action whether Comm’n, F.3d Regulatory v. Nuclear environment; “significantly affect” the (9th Cir.2009) (quoting Ctr. for “intensity.” “context” and 40 C.F.R. Biological Diversity Highway v. Nat’l 1508.27; § see also Nat’l Parks & Conser Admin., 1172, 1219 Safety 538 F.3d Traffic (9th Babbitt, 722, v. 241 vation Ass’n F.3d 731 Cir.2008)). (9th Cir.2001), abrogated grounds on other If an an determines agency Farms, by Monsanto Co. v. Geertson Seed must, required, EIS is not it as did 2743, 2757, 130 177 561 U.S. S.Ct. here, Finding Signifi BLM issue a of No (2010). 461 simply L.Ed.2d “Context de (“FONSI”), Impact briefly describing cant action, scope agency’s limits the of the why significant action “will not have Babbitt, including the interests affected.” effect on the human environment....” at Intensity F.3d 731. refers to the § reviewing C.F.R. 1508.13. In decision “severity impact,” regulations of and the NEPA, prepare not to under EIS identify factors agencies ten should arbitrary reviewing court “employ[s] in evaluating intensity. consider capricious requires and us to standard 1508.27(b)(l)-(10) factors).23 whether taken a agency determine has (listing rangelands, impact] highly [the but environmental environment are involve uncertain or risks”; as (6) horses well.” Am. Horse Protection unique degree or unknown "The Andrus, Ass’n v. Cir. precedent may which the action establish a 1979). ...”; (7) actions ac- for future "Whether the tion related to with individu- other actions "intensity” by 23. The factors enumerated ally insignificant cumulatively significant but 1508.27(b) (1) may "Impacts that include: (8) impacts”; degree "The ac- to which the adverse”; (2) be both beneficial and "The districts, sites, may adversely high- tion affect degree proposed to which the affects action structures, ways, eligi- objects or listed in or (3) safety”; "Unique health or charac- listing Register in ble for the National prox- geographic teristics of the area such as may destruc- Historic Places or cause loss or resources, imity park to historic or cultural scientific, cultural, significant or his- tion of lands, farmlands, wetlands, prime and wild resources”; (9) degree to torical "The which rivers, areas”; ecologically scenic or critical may adversely the action an endan- (4) affect degree to "The which the effects on the gered species its habitat or threatened or quality likely human environment are ...”; (10) controversial”; (5) highly degree "Whether the action threatens to be "The State, Federal, possible human law....” which the effects on the a violation of or local ment.” prepare The FONSI therefore concluded 1. decision not to The BLM’s an EIS proposed gather major was “not a federal action” for which an EIS would be 157-page The BLM’s Gather Plan required. That supported conclusion was EA, published May reveals a de by a brief persuasive analysis but tailed consideration the then-current intensity ten factors by enumerated areas, riparian and future status cultur 1508.27(b). C.F.R. sites, wildlife, supra See n. al native and wild horse particular, populations incorporated burro on the Twin Peaks the FONSI EA HMA. The based its conclusions on 27-page environmental analysis “effects” evaluations of the condition and health of EA; contained in the noted that standard riparian between per sites 1995 and 2009 operating procedures would be used to specialists formed who could de conduct gather; emphasized that the damage termine the extent caused proposed likely action was not to affect burros, opposed live public safety health or because the Twin stock and other factors. The in report Peaks HMA “is very located within a re- photos predic cluded of affected sites and setting habitation”; mote with little human improve tions of how the would determined that “cumulative effects ex- riparian least 80 and cultural sites current pected would include improve- continued ly damaged by wild horse trampling. ment of upland riparian vegetation

The EA also described the actions that conditions”; stated there are no threat- would taken to helicopter ensure the ened or endangered plants in the sur- gather process unnecessarily would not area; rounding and maintained that a cul- animals, stress the and made clear that the survey tural resources of the HMA would methods, facilities, capture traps, holding occur before the gather guide and would equipment, and administration of immuno- the choice of temporary trap sites. Plain- contraceptives would be in compliance with challenge tiffs the BLM’s decision not to Operating the Standard Procedures set EIS, issue an citing intensity four of the out in the National Wild Horses Gather 1508.27(b) factors from 40 C.F.R. EA provided thorough Contract. The a their argument questions that substantial analysis alternatives, of numerous includ- have been regarding raised whether the ing an alternative that would not involve gather may significant impact have a on any fertility measures, control an alterna- the wild horses and burros of the HMA. only tive that would use fertility control First, Plaintiffs claim the effects measures, and a no-action alternative. short, gather “highly EA were controversial.” provided analysis the a detailed 1508.27(b)(4) (listing of the current environmental See C.F.R. as an conditions on HMA, projections the future intensity for the envi- factor degree “[t]he to which the ronmental condition of the HMA absent quality effects on the of the human envi action, any explanation an of the BLM’s likely ronment highly are to be controver preferred action in comparison to alterna- sial”). “highly An action is controversial” take, tive that actions the BLM could and when “a dispute substantial exists as to the methodology upon the and data which its size, nature, major or effect of the federal conclusions were based. Soc’y Humane the actionf.]” U.S. v. of Locke, (9th Cir.2010). 626 F.3d Relying comprehensive analysis, on this “A dispute substantial exists when evi the BLM’s FONSI determined that the ... proposed gather significantly upon would “not dence casts serious doubt the quality affect the of the human agency’s environ- reasonableness of an conclu- EA do not Babbitt, at Plain- the comments on the indicate 241 F.3d sions.” “highly “highly was contro- that these are controver- gather practices tiffs claim the “unprecedented” its Overall, of the EA’s given versial” because sial.” clear Plaintiffs, scope. According “[n]one the lengthy analysis regarding effects of the Peaks previous roundups [on the Twin proposed the Plaintiffs not gather, have manipulations of intensive included HMA] that “casts presented evidence serious injec- range [such as horses left upon doubt the reasonableness of [the] immunocontraceptives tion into conclusions,” and thus agency’s the effects skewing of the stallion-to- mares and “highly not were controver- ratio], previous gath- all of [the mare sial” the time the BLM issued its FON- much up percent- smaller ers] rounded Locke, 626 F.3d at 1057. SI. See age population [of wild hors- of the overall Second, Plaintiffs that gath- assert burros].” es and “possible ... on the er’s effects wild hors- challenged are correct Plaintiffs es and in this HMA highly burros are largest ever gather was the conducted unique uncertain involve or un- and/or HMA, as BLM con- Peaks Twin known risks.” See C.F.R. gathered approximately cedes. The 1508.27(b)(5) an (listing intensity fac- 1,639 horses, almost the num- wild double degree tor to which the possible “[t]he previous gather ber taken in the effects on the human are environment are also horses. Plaintiffs correct highly unique uncertain or involve or un- 2,300 public some comments were submit- risks”). known Plaintiffs cite two studies Plan EA. opposing ted the Gather that claim to demonstrate the use of if notwithstanding, considerations These may such as immunocontraceptives PZP any agency’s opposition proposed “potentially significant have effects” on dispute,” created a “substantial actions claim gath- wild horses. Plaintiffs also always seemingly required. EIS would PZP er’s combination of treatment with a Ecosystems Council v. U.S. Native Cf. large reduction herd size the skew- Serv., Cir. Forest ing of sex ratio in a the herd’s resulted 2005) (stating that the mere “existence of high degree uncertainty. opposition to a use” does not render “regulations This because argument fails controversial”). project “highly Even anticipate do not the need for an EIS granting largest gather that this was anytime uncertainty, there is some but HMA, ever on the foresee conducted its if only project ‘high the effects are entirely precedented able was and effect ly’ Biological uncertain.” Ctr. Diversi for the return the wild non-controversial: (9th 701, ty v. Kempthorne, 588 F.3d 712 populations long- horse and burro to the Cir.2009) (citation quotation internal and Indeed, AMLs. the effects of established omitted). marks The effects of gather gathers conducted on the Peaks Twin BLM, “highly were not uncertain” to the BLM, HMA are well known to as the which, above, has used PZP noted to BLM gathered has animals on these lands manage populations wild horse since 1992 gathered approximately since 1976 and to adjustments and has made herd sex 4,000 on the wild horses HMA between in And gathers. ratios numerous Plaintiffs 1998 and 2009. As Plaintiffs’ conten in support have no evidence submitted injection tion of iminunoeon regarding their that the combination of assertion skewing into mares and traceptives ratio, practices may actually pose these serious practices stallion-to-mare these 1992, have in unknown risks. been use since least

1071 strongest argument regarding Greenpeace Franklin, Plaintiffs’ See Action v. (9th “highly intensity Cir.1992). uncertain” factor is F.3d We there- (a study by their citation of two studies fore decline to find that the effects of the Cooper study and Larsen from 2006 and a proposed gather “highly were uncertain.” 2009) by Nunez et al. from that discuss Third, Plaintiffs claim the will possible negative may effects PZP have on “establish a precedent for future actions the herd behavior genetic diversity of with significant effects,” by encouraging However, populations. wild horse these future roundups of this scope and intensi- ultimately two articles are insufficient to 1508.27(b)(6) ty. See 40 C.F.R. (listing require a full EIS in a case like this where intensity as an factor degree “[t]he agency relied on other scientific find- which may the action precedent establish a ings support its conclusion that PZP effects”). for future actions with significant significant negative would not have a effect However, argument this foreclosed Oregon animals. See Marsh v. Ninth Circuit law which holds that “EAs Council, 360, 378, Natural Res. 490 U.S. are usually highly specific project to the (1989) 109 S.Ct. 104 L.Ed.2d 377 locale, and the thus creating binding no (“When specialists express conflicting precedent.” Barnes Dep’t v. U.S. views, agency must have discretion to Cir.2011) Transp., 655 F.3d rely opinions on the reasonable of its own (citation omitted). Thus, the BLM’s find- if, qualified experts original even as an ing significant impact of no in this case will matter, might a court contrary find views not affect the analysis BLM’s NEPA Moreover, more persuasive.”) the district future gathers.25 correctly court noted the studies cited We conclude that the BLM considered only “possible” Plaintiffs found effects intensity relevant factors in making its PZP, and “therefore can be distin- finding significant of no impact “pro- guished on that basis the studies on [from a convincing vided statement of reasons to which the BLM relied in its since EA] explain why project’s impacts [the] [were only effects that ‘possible’ are do not rep- EPIC, expected insignificant.” to be] resent true ‘dissenting’ views.” De- (citation F.3d at 1009 quota- internal Animals, F.Supp.2d at 1197.24 fense of omitted). Therefore, tion marks the BLM protection Some wild horse groups even did not violate NEPA it when decided not commented on the EA that the BLM to issue an EIS. greater should make contraceptive use of treatments. This court has held when contrary response 2. The BLM’s an agency significant bases a of no finding evidence scientific impact upon data, relevant and substantial Finally, argue Plaintiffs the fact that the record also contains some supporting respond adequately op evidence a different failed to scientific opinion necessarily posing regarding potential does not render scientific views agency’s arbitrary capricious. decision and negative immunocontracep- effects of the factor, distinguished 24. The district court intensity also the 25. Plaintiffs also cite a fourth claiming by that the a ground cited "threatens viola- studies Plaintiffs on the that tion" the Act. See 40 C.F.R. those studies assessed the effects on wild 1508.27(b)(10) (listing intensity as an factor PZP, repeated horses of doses of whereas the “whether the action threatens a violation of only proposed Gather Plan to administer a Federal, State, law”). argument local or This Animals, single dose. In Defense of because, A, supra fails the as discussed Part F.Supp.2d at 1197. Gather Plan did not violate the Act. First, agency’s an failure to address PZP, again citing Cooper the once tive (2009) (2006) deciding factor” in whether and Nunez et al. “certain crucial Larsen response to a comment prepare studies. to is not the same or not EIS attention to BLM’s EA that drew the and dis- agency’s as an failure to address studies, simply the directed these that fac- regarding certain evidence claim the EA that to the sections of readers Here, the “factor” is the effect tor. fertility Those sec- controls. addressed horses. The BLM did con- PZP on wild turn, tions, provided citations to various in by the reader directing that “factor” sider supported the BLM’s conclu- which studies of the EA which addressed to sections not affect that PZP-treatment would sion citations to fertility provided controls health, the behavior the horses’ hormone demonstrating the lack of various studies mares, currently in pregnancies of treated negative resulting effects from the admin- offspring. or the health of progress, Thus, PZP. the BLM did ad- istration of that sections also determined Those simply It did dress the relevant factor. reversible completely of PZP were effects that the rebutted not write earlier studies easily PZP could administered and that speculations possible nega- Plaintiffs’ as to However, BLM’s re- in the field. Second, just PZP. effects of one could tive itself, comment, EA to this and the sponse easily argue the BLM did consider BLM found the why did not address it to the responded the studies because per- it more on which relied to be studies by explicitly referencing comment-at-issue Larsen, Cooper than the suasive fer- the sections of EA that addressed al. studies. Nunez et tility control. This that the BLM suggests NEPA, panel must as Under find to be simply did not the newer studies whether BLM “failed to address sess scientifically relevant ac- particularly or as factors, crucial certain consideration it curate as the older studies on which truly informed which essential to a [is] EPIC, relied.26 451 F.3d at 1017 Cf. whether prepare decision or not (“When specialists conflicting express Sheep N. Am. v. EIS.” Found. Wild for views, discretion we defer the informed Dep’t Agrie., F.2d U.S. agency.”). (9th Cir.1982). a close presents This issue Although question, close the lat because, blush, question appears at first it persuasive is more the im given ter view the BLM to ad “fail[ ] did indeed practieality contrary holding of a suggested dress” the two which studies in require agencies would to address detail may that PZP effects on have detrimental conveyed every single the substance in diversity. The genetic herd behavior and on an that the prove comment made EA to studies, BLM not nor did did discuss these agency “considered” the relevant factors. rely explain why the BLM it decided Indeed, court this has stated that even op the studies mentioned in the EA as EISs, comprehensive agencies the more to the more cited posed recent studies alone, however, respond every single “need not scientific comment. This fact study Ecology or comment.” Ctr. v. Cas automatically does not lead to a NEPA Cir.2009). taneda, violation. Second, B.l, supra 26. As discussed Part the district tive effects of PZP. those studies as- distinguished repeated court cited the effects on wild horses of the two studies sessed PZP, proposed gather the comment cited from the studies doses of whereas First, grounds. only single cited BLM on two the studies administered dose. Defense Animals, by only "possible” nega- F.Supp.2d the comment found at 1197. Moreover, not require “NEPA does feder horses and burros are “considered in the agencies al to ‘assess ... consider ... found, area presently where integral as an respond’ public to comments on an [and] part system of the natural of the public it degree EA to the same does for an § lands.” 16 U.S.C. Congress F.E.R.C., Cal. Trout v. EIS.” made an express finding that “wild free- (9th Cir.2009) added). 1003, 1016 (emphasis roaming horses and living sym- burros are Therefore, that, despite we hold the fact bols of the historic pioneer spirit the recite that BLM did not its reasons for West; they that contribute to the di- relying on the studies cited in the EA as versity of life forms within the Nation and opposed to the studies cited the com enrich the lives of the American people.” ment, performed the BLM still the “hard Id. Congress was concerned that “these EPIC, required by look” NEPA. See 451 horses and burros are disappearing fast at 1009. F.3d from the American scene.” Id. From explicit these Congressional expressions, Conclusion we can important legislative discern four Ultimately, we conclude that the BLM (1) purposes: acknowledgment of im- authority acted within its under the Wild portance “living symbols” of wild horses as Free-Roaming Horses and Burros Act (2) heritage; of our Western recognition implemented when it Gather Plan symbols that these treasured “are fast dis- on the Twin Peaks HMA. We also hold (3) appearing scene;” from the American that the not prepare BLM’s decision Congressional policy pro- articulation of arbitrary capricious EIS was not be- tect capture, branding, wild horses “from provided convincing cause the BLM (4) death”; harassment or designation why gather’s statement of reasons en- “present- the area where the horses are vironmental effects would not signifi- ly found” to accomplish protection Finally, cant. we hold the BLM did the wild horses. Id. arbitrarily not act capriciously when it responded to highlighting comments express Congressional pur- With these possibility of scientific dissent regarding mind, poses in I now consider 16 U.S.C. the administration of the immunocontra- specific provision under which reasons, ceptive PZP. For those AF- we the BLM effectuated removal of the wild FIRM the decision of the district court range. horses from their home granting summary judgment to the Defen- 1333(a), Pursuant to 16 U.S.C. dants. Secretary of the Interior is directed to by Judge Dissent RAWLINSON. first protect manage and then to the wild population. horse Wild horses and burros RAWLINSON, Judge, Circuit “components are considered dissenting: managed lands” who are to be “at the respectfully I dissent because I cannot minimal feasible level.” 16 U.S.C. agree roundup that the of the wild horses 1333(a). Management the Bureau of Land (BLM) complied with the Wild Free 1333(b) Secretary Section authorizes the (the Act). Roaming Horses Act and Burros only If an remove “excess animals.” exists, overpopulation of wild horses undisputed Congress

It is enacted any Act place mandates removal take legislation this protect wild horses and “in following priority, burros “from order and until capture, branding, harass- ment or death” and to so do while the all excess animals have been removed”: old, 1333(b)(2), §

(A) portion no other Secretary pursuant shall order The destroyed sick, animals to be in Act of capture or lame of the authorizes excess possible; humane manner most the the of removal. purpose horses for And (B) Secretary shall cause such absolutely The in the Act nothing authorizes wild free- of additional excess number of horses. The capture the non-excess to be hu- roaming horses and burros adopted by of the definition removal adop- manely captured [for and removed by parroted majority the completely ...; and tion] against ignores cap- the Act’s admonition (C) Secretary The shall cause addi- horses, turing harassing or the wild and its free-roaming wild excess horses tional manage the horses instruction where de- adoption for which an and burros found, they are the part of lands. destroyed ... not to be mand does exist stated, § As See 16 U.S.C. the in the most humane and cost efficient interpretation capture the BLM’s allows of possible. U.S.C. manner alike, horses excess non-excess which 133S(b)(l)-(2). § clearly not carefully was the intent of the Congress, The Act couldn’t be clearer. legislation toward cap- crafted directed the in specifically has listed the order which only. ture and removal of excess horses excess wild horses are to be removed. If, argues majority as the BLM and the First, any captured, and before horses are “gather” accepts, its were not contemplat “old, or lame are “to sick animals” be by 1333(b)(2), § Congress ed not would 1333(2)(A). § destroyed.” Only Id. after carefully priority provi have crafted the completed priority the first listed has been old, only the Act. It after sions of is sick or Act does the authorize “additional excess destroyed animals that lame are the Act free-roaming and burros to wild be provides additional excess wild horses humanely captured and removed” for 1333(b)(2)(A)-(B). captured. § to be See 1333(2)(B). § Finally, adoption. Id. BLM completely The circumvented this remaining excess any “additional statutory and violated mandate the ex free-roaming horses and burros” for which press purpose Congress protect adoption may demand exists be de- no capture wild horses from harass and/or 1333(2)(C). §at stroyed. Id. ment. See U.S.C. 1331. When an absolutely support There is no textual interpretation agency’s of statute is total Secretary capture Act for the purpose ly express inconsistent with the horses, entire herd of wild excess and non- statute, that interpretation is null and alike, in disregard excess total of the ex- Int’l & Longshoremen’s void. See Ware plicit priority in the Act. In articulated Meese, housemen’s Union v. addition, it cannot gainsaid Cir.1989), as amended herd capture wholesale the wild horse (“This recognizes ordinarily court complete antithesis “minimal agency’s interpretation is entitled to defer of management feasible level” mandated however, ence, reject courts must an ad 1333(a). by the Act. 16 U.S.C. of a ministrative construction statute majority flagrant The lack overlooks this statutory is inconsistent with the mandate by of compliance adopting with the Act purpose....”) Congress’ or that frustrates argument “gathering” BLM’s that the (citation omitted). governed animals is not a removal persuaded I not 1333(b)(2). majority, am Unlike provisions of Majority However, if the rationale in the district court deci- pp. Opinion, 1064-65. Salazar, BLM is not the excess of In Animals v. managing animals sion Defense (D.D.C.2009). F.Supp.2d interpretation contrary As legislative matter, intent....”) (citation omitted). initial that case involved denial injunction on preliminary of a and rested I respectfully dissent. injunction fac- balancing preliminary of the ruling legal tors rather than definitive (discussing id. at 95-96

the merits. See merits). of success on the More

likelihood

importantly, although purported the court statute, of the see purpose consider

id., completely ignored it the actual text of defining purpose pro-

the statute its as to capture tect the wild horses from or YEH, YOW MING Petitioner- harassment and to do so where the horses Appellant, “presently were found.” 16 U.S.C. 1331. The record this case reflects that the v. previously injured BLM has identified MARTEL, Deputy Matthew Chief range horses on the capturing without first (A), Respondent- Warden Therefore, legitimate

them. no basis ex- Appellee. cavalierly chasing isted for the horses with helicopters for miles capturing before No. 11-55625. them, including horses who were admitted- ly non-excess. Appeals, United States Court of Ninth Circuit.

Under the Administrative Procedure Act, agency abuses its discretion when 7, Argued and April Submitted 2014. contrary Orga its actions are to law. See Village Dept. nized Kake v. U.S. 13, May Filed 11-35517, Agric., No. 746 F.3d 2014) (artic WL 1229762 Cir. Mar.

ulating agency’s action is arbi “[a]n

trary capricious if ... agency’s law”) contrary governing

decision is to

(citation omitted). view, my the BLM completely

actions flouted the Wild Free-

Roaming Horses and Act Burros

thereby its abused discretion. See id. Be

cause the interpretation appli BLM’s text, ignored

cation of the Act intent statute, purpose absolutely no agency

deference was owed to the action interpretation.

taken in reliance on that Longshoremen’s

See Int’l & Warehouse Union, 1383;

men’s 891 F.2d at see also

Dyack v. N. Commonwealth Mariana Islands, (9th Cir.2003)

(“Although generally agen we defer to an

cy’s construction of a statute it adminis

ters, agency’s we will not do so where the

Case Details

Case Name: In Defense of Animals v. U.S. Department of the Interior

Court Name: Court of Appeals for the Ninth Circuit

Date Published: May 12, 2014

Citation: 751 F.3d 1054

Docket Number: 12-17804

Court Abbreviation: 9th Cir.