Friends Animals v. Bureau of Land Mgmt.

FRIENDS OF ANIMALS, Plaintiffs, v. BUREAU OF LAND MANAGEMENT, Defendants.

Case No. 2:16-cv-1670-SI

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

April 2, 2018

OPINION AND ORDER

Michael Ray Harris, FRIENDS OF ANIMALS, 7500 Arapahoe Road, Suite 385, Centennial, CO 80112; R. Scott Jerger, FIELD JERGER LLP, 621 SW Morrison Street, Suite 1225, Portland, OR 97205. Of Attorneys for Plaintiffs.

Lucinda J. Bach, UNITED STATES DEPARTMENT OF JUSTICE, 601 D Street NW, Washington, DC 20004. Of Attorney for Defendants.

Michael H. Simon, District Judge.

Plaintiff Friends of Animals ("FOA") sues the United States Bureau of Land Management ("BLM") alleging that BLM's actions in gathering and removing horses from the Three Fingers Herd Management Area ("HMA") in response to a fire in August 2016 violated the National Environmental Policy Act ("NEPA") and the Wild Free-Roaming Horses and Burros Act ("WHBA"). Before the Court are the parties' cross-motions for summary judgment (ECF 50, 55) and BLM's motion to strike several exhibits submitted by FOA and to defer briefing on the issue of remedy in the event this Court finds in favor of FOA. For the reasons discussed, each party's motion for summary judgment is granted in part and denied in part, and BLM's motion to strike is granted.

STANDARDS

A. Standard of Review under the APA

The Administrative Procedure Act ("APA") provides for judicial review of final agency action. 5 U.S.C. §§ 701-706. Under the APA, a court may set aside agency actions only if such actions are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). Further, an "agency must examine the relevant data and articulate a satisfactory explanation for its action." Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). An agency's action is "arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Id. Although a court's "inquiry must be thorough, the standard of review is highly deferential; the agency's decision is 'entitled to a presumption of regularity,' and [a court] may not substitute [its] judgment for that of the agency." San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 601 (9th Cir. 2014) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-16 (1971)).

B. Summary Judgment

A party is entitled to summary judgment if the "movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party has the burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must viewthe evidence in the light most favorable to the non-movant and draw all reasonable inferences in the non-movant's favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th Cir. 2001). Although "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment," the "mere existence of a scintilla of evidence in support of the plaintiff's position [is] insufficient . . . ." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 255 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted).

When parties file cross-motions for summary judgment, the court "evaluate[s] each motion separately, giving the non-moving party in each instance the benefit of all reasonable inferences." A.C.L.U. of Nev. v. City of Las Vegas, 466 F.3d 784, 790-91 (9th Cir. 2006) (quotation marks and citation omitted); see also Pintos v. Pac. Creditors Ass'n, 605 F.3d 665, 674 (9th Cir. 2010) ("Cross-motions for summary judgment are evaluated separately under [the] same standard."). In evaluating the motions, "the court must consider each party's evidence, regardless under which motion the evidence is offered." Las Vegas Sands, LLC v. Nehme, 632 F.3d 526, 532 (9th Cir. 2011). "Where the non-moving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party's case." In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010). Thereafter, the non-moving party bears the burden of designating "specific facts demonstrating the existence of genuine issues for trial." Id. "This burden is not a light one." Id. The Supreme Court has directed that in such a situation, the non-moving party must do more than raise a "metaphysical doubt" as to the material facts at issue. Matsushita, 475 U.S. at 586.

LEGAL BACKGROUND

A. National Environmental Policy Act ("NEPA")

NEPA requires that a federal agency "consider every significant aspect of the environmental impact of a proposed action and inform the public that it has indeed considered environmental concerns in its decisionmaking process." Earth Island Inst. v. U.S. Forest Serv., 351 F.3d 1291, 1300 (9th Cir. 2003) (quoting Kern v. U.S. Bureau of Land Mgmt., 284 F.3d 1062, 1066 (9th Cir. 2002)) (alterations omitted). NEPA's procedural requirements "force agencies to take a 'hard look' at the environmental consequences of their actions. Id. (quoting Kern, 284 F.3d at 1066). NEPA also established the Council on Environmental Quality ("CEQ"). "Regulations governing how NEPA is implemented have been promulgated by the Council of Environmental Quality, at 40 C.F.R. §§ 1505.1-1508.28." N. Plains Res. Council, Inc. v. Surface Transp. Bd, 668 F.3d 1067, 1072 (9th Cir. 2011).

Among NEPA's procedural requirements is a requirement that agencies considering "major Federal actions significantly affecting the quality of the human environment" prepare an Environmental Impact Statement ("EIS"). 42 U.S.C. § 4332(C); W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 486-87 (9th Cir. 2011). The purpose of an EIS is primarily "to serve as an action-forcing device to insure that the policies and goals defined in the Act are infused into the ongoing programs and actions of the Federal Government." 40 C.F.R. § 1502.1. The EIS "shall provide full and fair discussion of significant environmental impacts and shall inform decisionmakers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment." 40 C.F.R. § 1502.1.

To determine whether an EIS is necessary, an agency may first prepare an Environmental Assessment ("EA").¹ An EA serves to: (1) "Briefly provide sufficient evidence and analysis for determining whether to prepare an [EIS] or a finding of no significant impact"; (2) "[a]id an agency's compliance with [NEPA] when no [EIS] is necessary"; and (3) "[f]acilitate preparation of a statement when one is necessary." 40 C.F.R. § 1508.9. An EA "[s]hall include brief discussions of the need for the proposal, of alternatives as required by section 102(2)(E), of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted." 40 C.F.R. § 1508.9. If, based on an EA, an agency determines that the contemplated federal action will not significantly affect the environment, "the federal agency may issue a finding of no significant impact ('FONSI') in lieu of preparing an EIS." Native Ecosystems Council v. Tidwell, 599 F.3d 926, 937 (9th Cir. 2010) (quoting Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1239 (9th Cir. 2005)). If the agency does not make a FONSI, an EIS is required. Where an agency does not "prepare an EIS, it must supply a convincing statement of reasons to explain why a project's impacts are insignificant." Tidwell, 599 F.3d at 937. This statement is "crucial to determining whether the agency took a hard look at the potential environmental impact of a project." Id.

Whether a federal agency prepares either an EIS or an EA, NEPA mandates that federal agencies "study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources." 42 U.S.C. § 4332(E); Native Ecosystems Council, 428 F.3d at 1245 ("The alternatives provision of NEPA applies whether an agency is preparing an EIS or an EA.").

B. Wild Free-Roaming and Burros Act ("WHBA")

The Wild Free-Roaming Horses and Burros Act ("WHBA"), 16 U.S.C. §§ 1331 et seq., governs the management and treatment of wild horses and burros across the nation. Concerned that wild horses and burros were "fast disappearing from the American scene," Congress enacted WHBA to protect the "wild free-roaming horses and burros [that] are living symbols of the historic and pioneer spirit of the West." 16 U.S.C. § 1331. WHBA requires that wild horses and burros "be considered . . . an integral part of the natural system of the public lands" in places where they were found at the time of WHBA's passage. Id. Congress enacted WHBA to provide that these animals "be protected from capture, branding, harassment, [and] death." Id.

WHBA directs that the Secretary of the Interior—through BLM—"manage wild free-roaming horses and burros" "as components of the public lands" and "in a manner that is designed to achieve and maintain a thriving natural ecological balance [("TNEB")] on the public lands." 16 U.S.C. § 1333(a); 16 U.S.C. § 1332(a) (defining "Secretary"). To accomplish this, BLM establishes Herd Management Areas...