American Wild Horse Campaign v. Bernhardt, No. 18-17403 (9th Cir. 2020)
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The Ninth Circuit affirmed the district court's grant of summary judgment for defendants in an action alleging that the BLM's geld and release plan for wild horses violated the National Environmental Policy Act (NEPA), the Administrative Procedure Act (APA), and the Wild Free-Roaming Horses and Burros Act.
The panel held that the BLM did not act arbitrarily or capriciously when it chose to geld and release some of the male horses that would otherwise be permanently removed. The panel also held that the BLM permissibly determined that the intensity factors, whether considered individually or collectively, did not show that the Gather Plan would have a significant effect on the environment; the BLM considered and addressed the relevant factor that the Gelding Study raised and explained why additional information was not available, which meets NEPA's "hard look" standard; the Wild Free-Roaming Horses and Burros Act does not require the BLM to discuss explicitly all expert opinions submitted during the public-comment period; and by addressing the concerns and factors that the NAS Report raised, the BLM complied with the Wild Free-Roaming Horses and Burros Act's requirement that the BLM "consult" the National Academy of Sciences.
Court Description: Wild Horses. The panel affirmed the district court’s summary judgment in favor of federal defendants in an action alleging that the Bureau of Land Management (“BLM”)’s “geld and release” plan for wild horses violated the National Environmental Policy Act (“NEPA”), the Administrative Procedure Act, and the Wild Free-Roaming Horses and Burros Act. BLM developed a Gather Plan to address an excess of wild horses. In 2017, BLM determined that there was an overpopulation of wild horses in northeastern Nevada. It developed a plan to restore ecological balance by adjusting the sex ratio of the population, administering fertility control treatments to mares, and gelding and releasing back to the range some male horses. The panel held that BLM did not act arbitrarily or capriciously when it chose to geld and release some of the male horses that would otherwise be permanently removed. The panel rejected plaintiffs’ arguments challenging BLM’s actions and decisions. Plaintiffs argued that BLM must prepare an environmental impact statement (“EIS”) for its Gather Plan because five of NEPA’s intensity factors demonstrated that gelding and release would have significant effects on the environment. First, an agency must prepare an EIS when its AM. WILD HORSE CAMPAIGN V. BERNHARDT 3 action will have “highly uncertain effects” on the environment. The panel held that BLM’s plan to geld and release male horses to the range did not meet that threshold. The panel held that BLM used the existing evidence to assess the level of uncertainty and made reasonable predictions based on prior data to conclude that there would be no significant environmental impact. Second, the panel held that the effects of the Gather Plan were not “highly controversial.” Third, the panel held that the Gather Plan did not exhibit “unique characteristics;” and BLM’s determination that the gather area was not in close “proximity to historic or cultural resources” was not arbitrary or capricious. Fourth, the panel held that the Gather Plan did not establish a “precedent” for future actions where the plan did not establish gelding as an accepted population management tool, nor was it the first instance of BLM’s releasing geldings to the range. Fifth, the panel held that because BLM followed the mandates of the Wild Free-Roaming Horses and Burros Act, its decision to geld and release did not “threaten a violation of federal law.” The panel concluded that BLM permissibly determined that the intensity factors did not show that the Gather Plan would have a significant effect on the environment, and BLM permissibly concluded that preparation of an EIS was not required. Plaintiffs argued that BLM acted arbitrarily and capriciously because it did not address a Gelding Study, did not consider the expert opinions that plaintiffs highlighted in their public comments, and did not consider adequately a National Academy of Sciences (“NAS”) Report on the wild- horses program. First, the panel held that BLM met NEPA’s “hard look” standard when it considered and addressed the relevant factor that the Gelding Study raised and explained why additional information was not available. Second, the 4 AM. WILD HORSE CAMPAIGN V. BERNHARDT panel held that The Wild Free-Roaming Horses and Burros Act did not require BLM to discuss explicitly all expert opinions submitted during the public-comment period. Third, the panel held that by addressing the concerns and factors that the NAS Report raised, BLM complied with the Wild Free- Roaming Horses and Burros Act’s requirement that BLM “consult” the NAS to make determinations about how appropriate management levels should be achieved.
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