Leigh v. United States Dep't of Interior

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LAURA LEIGH, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF THE INTERIOR, et al., Defendants.

No. 2:22-cv-01200-MMD-BNW

United States District Court, D. Nevada

September 23, 2024

ORDER

MIRANDA M. DU, CHIEF UNITED STATES DISTRICT JUDGE

I. SUMMARY

Animal rights plaintiffs^[1] have filed suit against the U.S. Bureau of Land Management (“BLM”), U.S. Department of the Interior, and Nevada BLM Director Jon Raby on the grounds that a recent roundup of wild horses in northwestern Nevada violated the First Amendment, the Wild Free-Roaming Horses and Burros Act (“WHA”), and the National Environmental Policy Act of 1969 (“NEPA”). Before the Court are the parties' cross-motions for summary judgment (ECF Nos. 50, 60 (“Motions”)) and Plaintiffs' requests for judicial notice of several documents (ECF Nos. 51, 65 (“Requests”)).^[2] As explained in further detail below the Court finds that BLM must be compelled to prepare a herd management area plan (“HMAP”) but that the agency did not violate NEPA and that summary judgment is inappropriate as to the First Amendment claims. The Court will accordingly grant in part and deny in part both Motions and Requests.

II. BACKGROUND

The following facts are undisputed and primarily derived from the administrative record (“AR”).

The Blue Wing Complex is a 2.2-million-acre area northeast of Reno, Nevada, that contains five herd management areas (“HMAs”). (ECF No. 60 at 17.) The five HMAs in the Pancake Complex are the Kamma Mountains, Seven Troughs Range, Lava Beds, Blue Wing Mountains, and Shawave Mountains HMAs. (Id. at 17 n.2.)

BLM set the appropriate management level^[3] (“AML”) for the Blue Wing Complex at a range of 333 to 553 wild horses and 55 to 90 wild burros. (Id. at 17.) This AML was affirmed in the Winnemucca District Resource Management Plan (“RMP”) that BLM issued in May 2015. (Id. at 17-18.)

BLM conducted a preliminary environmental assessment (“EA”) of its gather plan (“the Gather Plan”). (Preliminary EA at ¶ 3054-3255.) Thousands of comments on the preliminary EA were submitted during its 30-day public comment period. (ECF No. 60 at 7.) These public comments notified BLM of concerns about livestock grazing levels and AMLs. (Final EA at 3513-36.) BLM responded to the comments, edited the Gather Plan, then released the Final EA. (Id. at ¶ 3404, 3513-36.)

The Final EA considered five alternatives: (1) the no-action alternative; (2) Alternative A, which implemented a fertility control vaccine with or without gathers; (3) preferred Alternative B, which combined multiple gathers and removals with a fertility control vaccine and/or spaying and gelding; (4) Alternative C, which combined one removal with multiple gathers and the fertility control vaccine; and (5) Alternative D, which implemented only one gather and removal to the low AML. (Id. at 3273-74.) BLM signed its finding of no significant impact (“FONSI”) and issued a Decision Record on May 4, 2021, adopting Alternative B without spaying and gelding. (FONSI at ¶ 354345; Decision Record at ¶ 3537-42.)

BLM has conducted multiple gathers under this Gather Plan. (ECF Nos. 50 at 10; 60 at 20.) One such gather of 218 wild horses and 804 wild burros ran from August 1 to 12, 2022 (“the 2022 Gather”). (Final Blue Wing Gather Report at ¶ 3880-81.) Laurie Ford, a member of WHE, attended this gather and sought to document it by taking photographs and videos. (ECF No. 50-2.) The BLM-established observation sites for the gather ranged from 0.7 to 1.8 miles away from the relevant trap sites. (ECF No. 60-1.) After trapping was completed, the gathered burros were taken to the Axtell Off-Range Corrals in Utah. (ECF No. 50 at 23-24.)

Plaintiffs brought this suit in July 2022 (ECF No. 1) and filed an amended complaint two months later (ECF No. 24 (“FAC”)). Now that discovery is complete, the parties have both moved for summary judgment. (ECF Nos. 50, 60.) Plaintiffs also seek to supplement the AR. (ECF Nos. 51, 65.)

III. MOTIONS FOR SUMMARY JUDGMENT

The parties seek summary judgment on Plaintiffs' claims that BLM violated the First Amendment, WHA, and NEPA.^[4] (ECF Nos. 50, 60.) The Court will address each of these claims in turn.

A. Article III Standing

Standing is a threshold issue, so the Court will address these arguments first. See Food & Drug Admin. v. All. for Hippocratic Med., 602 U.S. 367, 378 (2024); Lance v. Coffman, 549 U.S. 437, 439 (2007) (“Federal courts must determine that they have jurisdiction before proceeding to the merits.”). “[T]he irreducible constitutional minimum of standing contains three elements.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). Plaintiffs must show that (1) they have suffered an actual or imminent concrete and particularized injury-in-fact, (2) the injury is “fairly traceable to the challenged action of the defendant,” and (3) it is likely, rather than speculative, that the injury will be redressed by a favorable decision. Id. at 560-61. Defendants contest only the first and third prongs as they pertain to Plaintiffs' First Amendment claim.^[5] (ECF No. 60 at 50.)

1. Injury in Fact

Plaintiffs allege that BLM's designated observation sites for the 2022 gather operations were located such that they could not meaningfully observe the gather;^[6]however, they have requested only prospective injunctive relief for this past harm. (ECF Nos. 24 at 31; 50 at 41-42; 50-2 at 2-3.). “Past exposure to harmful or illegal conduct does not necessarily confer standing to seek injunctive relief if the plaintiff does not continue to suffer adverse effects.” Mayfield v. United States, 599 F.3d 964, 970 (9th Cir. 2010). Thus, to obtain an injunction, Plaintiffs must demonstrate that they have suffered a concrete and particularized legal harm “coupled with ‘a sufficient likelihood that [they] will again be wronged in a similar way.'” Bates v. United Parcel Serv., 511 F.3d 974, 985 (9th Cir. 2007) (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983)); accord DZ Rsrv. v. Meta Platforms, Inc., 96 F.4th 1223, 1240 (9th Cir. 2024). Plaintiffs have satisfied both prongs.

a. Past Harm

At summary judgment, it is sufficient for Plaintiffs to establish their injury by setting forth in an affidavit or other evidence “specific facts, which for purposes of summary judgment motion will be taken to be true.” Lujan, 504 U.S. at 561 (internal quotation marks and citation omitted); see also FED. R. CIV. PROC. 56(c)(1)(A). Plaintiffs have submitted the affidavit of WHE member and 2022 gather attendee Laurie Ford. (ECF No. 50-2.) Ford claims that, even with cameras, she “could hardly observe or document the gather operations” from the observation sites due to their distance from trapping operations and the presence of BLM trucks and stock trailers that obstructed her view. (Id. at 2-3.) Photographs and videos of the gather shared on WHE's website raise genuine questions as to the accuracy of Ford's statements, but many of those images are sufficiently blurry that a reasonable jury could find Ford was unable to see the gather operations clearly. (ECF No. 60 at 50 n.18.) See Blue Wing Roundup, 2022, WILD HORSE EDUC. (Aug. 5, 2022), https://perma.cc/3GSL-S3NX; cf. Scott v. Harris, 550 U.S. 372, 380 (2007) (holding that courts ruling on a motion for summary judgment should not adopt a version of the facts that is “blatantly contradicted by the record, so that no reasonable jury could believe it”). Plaintiffs have adequately shown that one of their members suffered a particularized injury when she was unable to observe the 2022 gather from the BLM-established viewing locations.

b. Future Injury

Plaintiffs' likelihood of repeated future harm depends upon whether (1) BLM will gather horses in the Blue Wing Complex, (2) BLM will impair observers' ability to watch these gathers, and (3) Plaintiffs have concrete plans to observe these gathers. The record establishes that, when the FAC was filed, there was a “real possibility” of more gathers in the Blue Wing Complex. Leigh v. Salazar, 677 F.3d 892, 896 (9th Cir. 2012) [hereinafter Salazar I] (discussing mootness of a similar claim); see also Skaff v. Meridien N. Am. Beverly Hills, LLC, 506 F.3d 832, 838 (9th Cir. 2007) (“The existence of standing turns on the facts as they existed at the time the plaintiff filed the complaint.”).

BLM estimated in July 2022 that there was an excess of 1,360 wild horses and 1,272 wild burros on the Complex and, by September 2022, had removed only 218 horses and 804 burros. (Gather Request at ¶ 3826; Final Gather Report at ¶ 3880-81.) These numbers, combined with the Gather Plan's authorization to conduct phased gathers through 2037 and BLM's mandate to remove excess horses, indicated that BLM would imminently gather more horses and burros in the Blue Wing Complex. See also 16 U.S.C. 1333(b)(2).

Plaintiffs have likewise alleged that there is a substantial risk BLM will impair their ability to observe these future Blue Wing Complex gathers. It is “standard practice” for WHE to send its members to observe and document gathers throughout the country, including in the Blue Wing Complex. (ECF Nos. 50-1 at 3; 50-2.) Though herd management decisions are highly fact-specific, access issues for gather observers have been “commonplace” in the Winnemucca District. (ECF No. 50-1 at 6.) See also Fund for Animals, Inc. v. BLM, 460 F.3d 13, 22-23 (D.C. Cir. 2006). Taking these allegations as true, Plaintiffs face a “realistic danger” that they will be directly harmed by BLM's selection of observation sites for future gathers in the Blue Wing Complex. Pennell v. City of San Jose, 485 U.S. 1, 8 (1988) (quoting Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979)).

2. Causation

There is little question that these injuries are...