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Dana Johnson [email protected] Idaho Bar No. 8359 Law Office of Dana Johnson, PLLC P.O. Box 9623 Moscow, ID 83843 (208) 310-7003 (phone) William N. Lawton (admitted pro hac vice) [email protected] Oregon Bar No. 143685 DC Bar No. 1046604 Meyer Glitzenstein & Eubanks LLP 4115 Wisconsin Ave. NW, Suite 210 Washington, DC 20016 (202) 588-5206 x 107 (phone) / (202) 588-5409 (fax) William S. Eubanks II (admitted pro hac vice) [email protected] D.C. Bar No. 987036 Meyer Glitzenstein & Eubanks LLP 2601 S. Lemay Avenue, Unit 7-240 Fort Collins, CO 80525 (970) 703-6060 (phone) / (202) 588-5409 (fax) Counsel for the American Wild Horse Campaign, The Cloud Foundation, Return to Freedom, and Virginia Marie Hudson, Plaintiffs

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO AMERICAN WILD HORSE PRESERVATION CAMPAIGN, et al. Plaintiffs v. SALLY JEWELL, et al., Defendants

Case No.: 16-cv-0001-EJL PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND REPLY IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT (Hon. Edward J. Lodge)

PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND REPLY IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

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TABLE OF CONTENTS I.

INTRODUCTION .............................................................................................................. 1

II.

THE GOVERNMENT FAILS TO RESPOND TO DISPOSITIVE ARGUMENTS. ........ 1 A.

Plaintiffs Explained That BLM Failed To Consider Impacts From Sterilizing The Saylor Creek Herd, And Defendants Offer No Meaningful Response. .................. 1

B.

Plaintiffs Explained That BLM’s “Rationale[s]” For Sterilization Were Fatally Flawed, And Defendants Offer No Meaningful Response. .................................... 3

III.

PLAINTIFFS’ CLAIMS ARE RIPE. ................................................................................. 4

IV.

DEFENDANTS FAIL TO SHOW BLM CONSIDERED THE NAS REPORT. .............. 5 A.

Defendants’ Belated Attempt To Fabricate Support from the NAS Report Is An Unacceptable Post Hoc Justification. ...................................................................... 6

B.

Defendants’ Post Hoc Reading Of The NAS Report Is Not Entitled To Deference And Is Without Merit. ............................................................................................. 7

V.

THE GOVERNMENT FAILS TO SHOW THAT BLM ADEQUATELY CONSIDERED THE CONSISTENCY OF ITS DECISION WITH THE WHA OR THE AGENCY’S OWN REGULATIONS AND POLICIES. ......................................................................... 9 A.

Plaintiffs Have Not Waived The Issue Of Consistency With The WHA. .............. 9

B.

Defendants Fail To Show That BLM Responded To Comments Criticizing The Agency’s Decision As Inconsistent With The Agency’s Own Regulations. ........ 11

C.

Defendants Cannot Show That BLM Responded To Comments Criticizing Its Decision As Inconsistent With The Agency’s Handbook. ................................... 15

VI.

DEFENDANTS FAIL TO SHOW THAT BLM ADEQUATELY RESPONDED TO COMMENTS EXPRESSING OPPOSITION TO ITS DECISION. ................................ 16

VII.

DEFENDANTS CANNOT JUSTIFY BLM’S FAILURE TO CONSIDER A PARTIALLY REPRODUCING HERD ALTERNATIVE. ............................................. 18

VIII.

CONCLUSION ................................................................................................................. 20

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TABLE OF AUTHORITIES Page(s) Cases California v. Block, 690 F.2d 753 (1982) .................................................................................................................17 City of Carmel-By-The-Sea v. U.S. Dep’t of Transp., 123 F.3d 1142 (9th Cir. 1997) .................................................................................................19 Ctr. for Biological Diversity v. U.S. Forest Serv., 349 F.3d 1157 (9th Cir. 2003) .................................................................................................12 Del. Dep’t of Natural Res. v. EPA, 785 F.3d 1 (D.C. Cir. 2015) .........................................................................................12, 15, 17 In the Matter of Disability Rights Idaho Request for Ada Cnty. Coroner Records Relating to the Death of D.T., 168 F. Supp. 3d 1282 (D. Idaho 2016) ................................1, 11 Idaho Conservation League v. U.S. Forest Serv., No. 1:11-cv-00341-EJL, 2012 WL 3758161 (D. Idaho Aug. 29, 2012)....................................5 Idaho ex rel. Kempthorne v. U.S. Forest Serv., 142 F. Supp. 2d 1248 (D. Idaho 2001) ......................................................................................9 Kern v. U.S. Bureau of Land Mgmt., 284 F.3d 1062 (9th Cir. 2002) ...........................................................................................2, 4, 5 Lands Council v. Powell, 395 F.3d 1019 (9th Cir. 2005) ...................................................................................................2 Martin v. Occupational Safety and Health Review Comm’n, 499 U.S. 144 (1991) ...................................................................................................................7 Mont. Wilderness Ass’n v. McAllister, 658 F. Supp. 2d 1249 (D. Mont. 2009), aff’d, 666 F.3d 549 (9th Cir. 2011) ..........................10 Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 422 F.3d 782 (9th Cir. 2005) .....................................................................................................7 Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726 (1998). ..............................................................................................................4, 5 Or. Natural Desert Ass’n v. U.S. Bureau of Land Mgmt., 625 F.3d 1092 (9th Cir. 2010) .....................................................................................4, 6, 7, 10

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Pac. Coast Fed’n of Fishermen’s Ass’ns v. U.S. Dep’t of Interior, 929 F. Supp. 2d 1039 (E.D. Cal. 2013)....................................................................................19 Pac. Coast Fed’n of Fishermens Ass’ns v. Nat’l Marine Fisheries Serv., 482 F. Supp. 2d 1248 (W.D. Wash. 2007) .........................................................................12, 18 Safe Air for Everyone v. EPA, 488 F.3d 1088 (9th Cir. 2007) ...................................................................................................7 Samica Enters., LLC v. Mail Boxes Etc., Inc., 460 Fed. App’x 664 (9th Cir. 2011) ..........................................................................................1 Statutes Administrative Procedure Act, 5 U.S.C. § 706(2) ...........................................................................1 National Environmental Policy Act, 42 U.S.C. §§ 4321–4370h .....................................................1 Wild Free-Roaming Horses and Burros Act, 16 U.S.C. §§ 1331–1340 ..........................................1 Other Authorities 40 C.F.R. § 1502.2(d) ....................................................................................................................10 40 C.F.R. § 1502.14(a)...................................................................................................................18 43 C.F.R. § 4700.0-6(a) .....................................................................................................11, 13, 14

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I.

INTRODUCTION Plaintiffs’ opening brief explained many reasons that the Bureau of Land Management’s

(“BLM”) unprecedented decision in the Jarbidge Resource Management Plan (“RMP”) to sterilize the entire wild horse herd in the Saylor Creek Herd Management Area (“HMA”) violated the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321–4370h, and the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2). For example, Plaintiffs explained that BLM failed to consider significant issues in its Final Environmental Impact Statement (“FEIS”)—including whether its decision was consistent with the Wild Free-Roaming Horses and Burros Act (“WHA”), 16 U.S.C. §§ 1331–1340, and implementing policies—and that BLM stated arbitrary and capricious “rationale[s]” in its Record of Decision (“ROD”). Defendants’ response fails to rebut Plaintiffs’ claims, ignores some arguments altogether, baselessly challenges ripeness, and offers post hoc arguments that come too late and lack merit. For the reasons explained below, this Court should enter summary judgment for Plaintiffs. II.

THE GOVERNMENT FAILS TO RESPOND TO DISPOSITIVE ARGUMENTS. “Failure to raise issues in opposition to summary judgment functions as a waiver . . . .”

In the Matter of Disability Rights Idaho Request for Ada Cnty. Coroner Records Relating to the Death of D.T., 168 F. Supp. 3d 1282, 1288 n. 5 (D. Idaho 2016) (Lodge, J.); see also Samica Enters., LLC v. Mail Boxes Etc., Inc., 460 Fed. App’x 664, 666 (9th Cir. 2011) (“Arguments not raised in opposition to summary judgment . . . are waived.”). Defendants fail to respond to two dispositive arguments, and summary judgment is proper for Plaintiffs on these issues. A.

Plaintiffs Explained That BLM Failed To Consider Impacts From Sterilizing The Saylor Creek Herd, And Defendants Offer No Meaningful Response.

Plaintiffs explained that BLM violated NEPA by failing to consider important impacts from the decision to sterilize the entire Saylor Creek herd—no matter what sterilization method 1

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BLM ultimately chooses. See ECF No. 20 at 28–30. Thus, the FEIS stated that under any form of sterilization there will be “no foaling,” AR025879, yet BLM never considered how a lack of foaling may affect the herd’s behavior. BLM’s decision will also alter the herd’s age structure and require importing horses as sterile horses perish, which may impact behavior. These behavioral impacts—resulting from any form of sterilization—may impair public observation of horses’ natural behaviors in this HMA, which BLM also ignored. Id. at 28–30. Remarkably, Defendants make no effort to rebut Plaintiffs’ claims by showing that BLM analyzed these issues. Instead, Defendants concede BLM never analyzed these issues, arguing only that Plaintiff’s claims are not ripe (discussed below) because such analysis “would have been ‘both speculative and premature’ because BLM did not select a sterilization method.” ECF No. 26 at 15.1 However, the impacts BLM failed to analyze result from sterilization itself, regardless of BLM’s method. “An agency may not avoid an obligation to analyze in an EIS environmental consequences that foreseeably arise from an RMP merely by saying that the consequences are unclear or will be analyzed later.” Kern v. U.S. Bureau of Land Mgmt., 284 F.3d 1062, 1072 (9th Cir. 2002). Because “NEPA is not designed to postpone analysis . . . [but] to require such analysis as soon as it can reasonably be done,” id., “[i]f it is reasonably possible to analyze the environmental consequences in an EIS for an RMP, the agency is required to perform that analysis,” id. (emphases added). Here, Plaintiffs showed that BLM failed to analyze indisputably foreseeable impacts, and Defendants’ silence is telling. The Court should grant summary judgment for Plaintiffs on this issue.

1

For support, Defendants cite only Lands Council v. Powell, 395 F.3d 1019, 1023 (9th Cir. 2005), a wholly inapposite case which held that a cumulative impacts analysis need not consider projects that have not been proposed and are remote in time—a far cry from this case, in which Plaintiffs documented a failure to analyze inevitable direct impacts from BLM’s decision. 2

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B.

Plaintiffs Explained That BLM’s “Rationale[s]” For Sterilization Were Fatally Flawed, And Defendants Offer No Meaningful Response.

Plaintiffs detailed defects in each of the three “rationale[s]” that BLM stated it its ROD for sterilizing the entire Saylor Creek herd. ECF No. 20 at 13–17. First, BLM’s “average genetics” rationale contradicted science cited in the FEIS, which actually concluded that “no action is needed.” Second, BLM’s rationale that the herd relies on water from pipelines failed to rationally connect this fact and the sterilization decision, especially given BLM’s decision to increase the herd’s population and its failure to consider that even sterile horses drink water. And third, BLM’s dispersal rationale failed to show sterilization could actually achieve dispersal, which would also flout the duty to preserve free-roaming behavior. Id. BLM offers no response. Instead of defending BLM’s explicitly stated “rationale[s]” for its decision, Defendants now point to other reasons for BLM’s decision, which BLM itself never stated or analyzed. Defendants now state—without citing the FEIS or ROD—that BLM based its decision on “the needs and goals of the national wild horse program,” ECF No. 26 at 5, “to manage the [HMA] as a holding area on the range” and “relieve some of the national program’s burden of managing thousands of unadopted horses in expensive holding facilities,” id. at 12. Defendants even state that wild horses’ “nation-wide, exponential population growth . . . is precisely why BLM chose to manage a non-reproducing herd here.” Id. at 18 (emphasis added). Rather than defend BLM’s stated “rationale[s]” for sterilizing this herd with facts about this HMA, Defendants rely on facts about the national program that BLM never cited in the ROD or analyzed in the FEIS. Defendants’ attempt to distract from the deficiencies Plaintiffs described is a post-hoc rationalization that cannot cure BLM’s legal violations. Because “an agency’s action must be upheld, if at all, on the basis articulated by the agency itself,” where “BLM never advanced such a position in the EIS itself,” an argument advanced first at litigation “is simply a post hoc 3

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rationalization . . . that the courts may not accept.” Or. Natural Desert Ass’n v. U.S. Bureau of Land Mgmt., 625 F.3d 1092, 1120 (9th Cir. 2010) (“ONDA”). BLM’s “rationale[s]” for sterilization were arbitrary and capricious for the unrebutted reasons Plaintiffs’ explained, and agency counsel’s post hoc statement of a new reason cannot excuse BLM’s legal violations. Instead, this post hoc rationalization exacerbates BLM’s NEPA violations. NEPA “require[s] the BLM to articulate, publicly and in detail, the reasons for and likely effects of [its] management decisions, and to allow public comment.” Kern, 284 F.3d at 1073 (emphasis added). When BLM stated its “rationale[s]” for sterilizing this herd, it said nothing about its national program. AR027958–59. Similarly, the Draft EIS and FEIS expressly stated that BLM’s “analysis only considers actions that would result in effects to the wild horses or the HMA; effects that would occur outside the HMA were not included.” AR023257 (draft); AR025874 (FEIS) (emphasis added). The Draft EIS mentioned the national program’s costs, AR022772, but never invoked cost as a reason to sterilize this herd. Moreover, in the FEIS, BLM removed any discussion of the national program. AR025335. Thus, BLM never disclosed or analyzed its national program’s costs as a reason to sterilize the Saylor Creek herd, as NEPA would require if cost motivated the decision. See Kern, 284 F.3d at 1073. Indeed, converting an HMA into a “holding area on the range” for sterile horses would be a radical, unprecedented change in BLM’s wild horse program with significant, nationwide impacts—certainly requiring NEPA analysis. BLM’s assertion of a rationale it never publicly announced or analyzed only magnifies the agency’s shortcomings under NEPA, and further justifies summary judgment for Plaintiffs. III.

PLAINTIFFS’ CLAIMS ARE RIPE. Defendants contend Plaintiffs’ claims are not ripe, relying on Ohio Forestry Ass’n v.

Sierra Club, 523 U.S. 726 (1998). ECF No. 26 at 14–16. But that case clearly stated that NEPA

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claims—like Plaintiffs’—not only are ripe but “can never get riper.” Id. at 737 (emphasis added). Defendants recognize this fact, arguing about ripeness only “[t]o the extent that Plaintiffs challenge the RMP and BLM’s decision . . . as opposed to the process BLM used to reach its decision.” ECF No. 26 at 14. Because Plaintiffs consistently challenged the “reasoning behind [BLM’s] decision,” see, e.g. ECF No. 20 at 1, Plaintiffs’ claims are clearly ripe. Precedents from the Ninth Circuit and this Court clearly show Plaintiffs’ claims are ripe. The Ninth Circuit found ripe precisely the type of claim now at issue—i.e. a NEPA challenge to an EIS for an RMP by BLM—reasoning that “[a] NEPA challenge to an EIS is fundamentally unlike a NFMA (or FLPMA) challenge to an RMP . . . [because] the rights conferred by NEPA are procedural rather than substantive, and plaintiffs allege a procedural rather than a substantive injury.” Kern, 284 F.3d at 1070–71. Because “any NEPA violation (and any procedural injury) inherent in the promulgation of an inadequate EIS for the [] RMP have already occurred,” the Court found that “[t]he plaintiffs’ claim is therefore ripe.” Id. at 1071.2 Following Kern, this Court has found that “whether or not [an agency] acted in violation of [statutory duties] in issuing [NEPA documents] . . . is a procedural question properly before the Court.” Idaho Conservation League v. U.S. Forest Serv., No. 1:11-cv-00341-EJL, 2012 WL 3758161, at *19 (D. Idaho Aug. 29, 2012) (Lodge, J.). Plaintiffs’ claims challenging BLM’s deficient reasoning as a procedural violation of NEPA and the APA are clearly ripe under binding precedent. IV.

DEFENDANTS FAIL TO SHOW BLM CONSIDERED THE NAS REPORT. Plaintiffs explained that BLM itself commissioned, yet failed to consider, an extremely

relevant report by the National Academy of Sciences (“NAS”), which was complete before BLM

2

Although Kern also involved a challenge to a site-specific decision, that fact was irrelevant to the holding that a challenge to an EIS for an RMP is ripe. See Kern, 284 F.3d at 1070–71. 5

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made the decision at issue. ECF No. 20 at 10–13. Ample material in the Report clearly bore on BLM’s decision to sterilize the entire Saylor Creek herd, including a method for deciding how many horses to treat. Id. at 11–12.3 Yet despite the Report’s clear relevance, BLM failed to discuss or even cite it in the FEIS or ROD. Instead, even when comments specifically cited the Report, BLM refused to consider it. See AR027035 (BLM would consider the NAS Report only if it “results in changes to current law or policy”); AR286954 (BLM would consider the Report only later when deciding how to sterilize horses). Plaintiffs explained that BLM violated NEPA by failing, even refusing, to consider this highly relevant report, which BLM itself commissioned. ECF No. 20 at 10–13. Defendants neither contest the Report’s relevance nor attempt to show that BLM considered it during the NEPA process. Instead, Defendants advance a post hoc argument that the Report supported BLM’s decision, which comes too late and lacks merit. A.

Defendants’ Belated Attempt To Fabricate Support from the NAS Report Is An Unacceptable Post Hoc Justification.

First, any argument that the NAS Report supports BLM’s decision “is simply a post hoc rationalization . . . that the courts may not accept.” ONDA, 625 F.3d at 1120. Plaintiffs showed that the FEIS and ROD failed to consider, or even cite, the Report, and Defendants provide no evidence of BLM ever considering it—no internal emails, meeting notes, or drafts. If BLM had analyzed the Report, this Court could consider whether such analysis—and the decision based on it—had merit. However, because BLM itself did not, in fact, analyze the NAS report, Defendants’ post hoc attempt to manufacture support from the Report for the first time at litigation must fail. Thus, summary judgment for Plaintiffs is proper on this issue.

3

Notably, as Plaintiffs explained, ECF No. 20 at 9, the NAS Report never indicated support for wholesale sterilization of an entire herd. Similarly, it noted significant drawbacks to sterilization, such as behavioral impacts, AR075569, 96, and risks of injury and infection, AR075603. BLM never considered any of these issues during the NEPA process. 6

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B.

Defendants’ Post Hoc Reading Of The NAS Report Is Not Entitled To Deference And Is Without Merit.

Defendants now urge this Court to defer to their misleading, post hoc reading of the NAS Report and ignore passages Plaintiffs cited to show the Report’s indisputable relevance. ECF No. 26 at 26–27. Indeed, Defendants argue that this Court owes “great deference” to “the agency’s technical analysis and judgments, based on an evaluation of complex scientific data within the agency’s technical expertise.” Id. (quoting Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d 832, 869 (9th Cir. 2003)). However, “[d]eference is not owed when an agency has completely failed to address some factor, consideration of which was essential to making an informed decision.” Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 422 F.3d 782, 798 (9th Cir. 2005). The fact remains that BLM never conducted any “technical analysis” or “evaluation” of the NAS Report. Indeed, BLM never even mentioned the Report—except when expressly refusing to consider it, AR027035, AR286954–55. Defendants may not now ask this Court to defer to an analysis by government counsel that BLM itself never performed. See, e.g., Martin v. Occupational Safety and Health Review Comm’n, 499 U.S. 144, 156 (1991) (“[A]gency litigating positions are not entitled to deference when they are merely appellate counsel’s post hoc rationalizations for agency action”); Safe Air for Everyone v. EPA, 488 F.3d 1088, 1099 (9th Cir. 2007) (“no deference to [] post hoc litigating positions, adopted by [agency] counsel.”). Deference to agency counsel’s post hoc rationalization is particularly inappropriate here because “public scrutiny is essential to implementing NEPA.” ONDA, 625 F.3d at 1100. If BLM had interpreted the NAS Report during the NEPA process as its counsel now does for the first time in litigation, public comments could have explained why this reading is fatally flawed. For example, if BLM had claimed that the NAS Report supported sterilizing an entire wild horse herd, comments could have noted that the Report actually raised serious issues—stating that to 7

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determine “how many individuals” to treat, “[i]t is critical that information on efficacy be integrated with population modeling,” AR075603 (emphases added)—which BLM ignored. Similarly, the public could have scrutinized each ostensible line of support that agency counsel now asserts. For example, Defendants argue the Report supported BLM’s decision by finding chemical vasectomy of stallions effective, which commenters could have stated is misleading for two reasons. First, BLM never committed to use chemical vasectomies and instead favors gelding.4 Second, Defendants ignore the Report’s discussion of female fertility control, which states that sterilizing females is “inadvisable for field application” due to risks of “prolonged bleeding or peritoneal infection.” AR075603. Rather than supporting sterilization, the Report stated on the same pages Defendants cite that the best female fertility control methods are not sterilization but instead are temporary, reversible contraceptives. AR075606–07.5 Comments could also have refuted the assertion that the Report supported sterilization by reviewing studies showing that more than 50% of horses must be treated to shrink the population. ECF No. 26 at 26. Comments could have noted that evidence of efficacy of treating most horses with contraceptives does not support sterilizing all horses, and that the next sentence

BLM officials stated that “I feel confident for us to successfully manage a non-reproducing herd . . . we would need to have a gelding only herd” and that “geldings only would be more predictable and easier to manage.” AR273901. The NAS Report does not support gelding, instead stating that gelding causes “some or total loss of sex drive” which “is counter to the often-stated public interest in maintaining natural behaviors in free-ranging horses.” AR075596. 4

5

Comments could have debunked the assertion that because contraceptives are best administered by hand, the Report supports BLM “because sterilization precludes the necessity of future gathers.” ECF No. 26 at 25. The Report actually states that hand administering contraceptives “is no more disruptive than the current method” and that contraceptives are “the most acceptable alternative for managing population numbers.” AR075607–08. Commenters could also have rebutted the assertion that the Report supports long-term fertility control methods, id. at 25, because it weighed long-term treatments’ benefits for “effort and financial resources” against effects on horses to find “[l]onger-acting methods should be used more judiciously,” AR075603. 8

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states “[i]t is critical that information on efficacy be integrated with population modeling to determine how many individuals” to treat, AR075603 (emphases added)—which BLM never did. As to the argument that the NAS Report supports BLM’s decision because it favored conserving unique morphological traits and, according to Defendants, “the record contains no evidence that the Saylor Creek herd has any,” ECF No. 26 at 26, commenters could have explained that BLM itself lauded the herd’s “historic traits and characteristics,” which “have proven to be highly desirable by the adopting public,” AR226252. So too for the assertion that the Report supports sterilizing this herd due to a lack of Spanish ancestry, commenters could have noted that although herds with “high concentrations of old Spanish blood” may be a “high priority for conservation,” AR075624, the Report and BLM’s own science state that the point of conserving genes is not, as BLM now states, to preserve one lineage, but to preserve a diverse reproducing population to avoid inbreeding. AR075618–24 (NAS); AR075363 (BLM scientist). In short, Defendants’ post hoc attempt to manufacture support from selective quotations of the NAS Report highlights the egregiousness of BLM’s failure to analyze the report at all, thereby excluding public input on several essential issues and “effectively prohibit[ing] the [public] from meaningful participation in the NEPA process.” Idaho ex rel. Kempthorne v. U.S. Forest Serv., 142 F. Supp. 2d 1248, 1261 n. 18 (D. Idaho 2001) (Lodge, J.). V.

THE GOVERNMENT FAILS TO SHOW THAT BLM ADEQUATELY CONSIDERED THE CONSISTENCY OF ITS DECISION WITH THE WHA OR THE AGENCY’S OWN REGULATIONS AND POLICIES. A.

Plaintiffs Have Not Waived The Issue Of Consistency With The WHA.

Defendants assert that Plaintiffs waived the issue of whether BLM’s decision was consistent with the WHA and BLM’s regulations and Handbook. ECF No. 26 at 16. However, Plaintiffs properly and consistently focused on BLM’s deficient decision-making process, which

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unlawfully failed to consider the decision’s consistency with applicable law. The Complaint alleged that BLM “fail[ed] to consider” various issues, including duties to preserve wild horses’ free-roaming behavior and self-sustaining populations, Compl. ¶¶ 87–88 (emphasis added)— issues which Plaintiffs then expressly argued. See ECF No. 20 at 14 (failure to consider “duty to maintain ‘self-sustaining’ herds”); id. at 16 (dispersal rationale “runs counter to BLM’s duty to maintain wild horses’ ‘free-roaming behavior”); id. at 11 (failure to consider NAS Report conflicted with WHA’s mandate to “consult with [individuals] recommended by the National Academy of Sciences”); id. at 21–26 (failure to consider consistency with policy). Because Plaintiffs’ Complaint and brief properly focused on BLM’s failure to consider its decision’s consistency with applicable law and policy, Plaintiffs did not waive this issue. To the extent Defendants’ waiver argument focuses on Plaintiffs challenge to BLM’s NEPA process, it lacks merit. An EIS must analyze whether the agency’s decision “will or will not achieve the requirements of [NEPA] and other environmental laws and policies,” such as the WHA in this case. 40 C.F.R. § 1502.2(d) (emphasis added); see also Mont. Wilderness Ass’n v. McAllister, 658 F. Supp. 2d 1249, 1256 (D. Mont. 2009), aff’d, 666 F.3d 549 (9th Cir. 2011) (“By failing to explain how [decisions] meet the requirements of the [applicable law], the Forest Service violated NEPA.”). Similarly, in the NEPA process, “the factors to be considered are derived from the statute the major federal action is implementing.” ONDA, 625 F.3d at 1109 n. 11. Here, NEPA required BLM to consider its decision’s consistency with the WHA and BLM’s regulations and Handbook—not least because public comments specifically raised these issues—

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but BLM failed to do so. By focusing on BLM’s failure in the NEPA process to consider its decision’s consistency with governing law and policies, Plaintiffs did not waive this claim.6 B.

Defendants Fail To Show That BLM Responded To Comments Criticizing The Agency’s Decision As Inconsistent With The Agency’s Own Regulations. 1.

Defendants offer no response regarding BLM’s failure to respond to comments about BLM’s duty to maintain “free-roaming” behavior.

Plaintiffs explained that numerous public commenters informed BLM that its decision was in conflict with specific provisions of BLM’s own regulations, and that BLM failed to meaningfully respond. ECF No. 20 at 21–24. Thus, Plaintiffs explained that BLM failed to respond to comments criticizing its decision as inconsistent with its duty to maintain wild horses’ free-roaming behavior. Id. at 22–23 (citing 43 C.F.R. § 4700.0-6(c) and AR169419, AR213390). Plaintiffs also explained that BLM’s decision, in fact, directly conflicted with this duty because BLM aimed to disperse the Saylor Creek wild horses rather than allow them to roam freely. Id. at 16–18. Because Defendants offer no response on this issue, summary judgment is proper for Plaintiffs. Disability Rights Idaho, 168 F. Supp. 3d at 1288 n. 5. 2.

Defendants cannot excuse BLM’s failure to respond to comments regarding the duty to maintain self-sustaining populations.

Plaintiffs explained that BLM failed to respond to comments criticizing its decision as conflicting with its duty to maintain “self-sustaining” populations under 43 C.F.R. § 4700.0-6(a). ECF No. 20 at 14–15, 22–24. The Animal Welfare Institute’s (“AWI”) Draft EIS comments stated that sterilizing this herd “is clearly inconsistent with” this regulation, AR169437, but the FEIS never addressed this issue. Unable to show any discussion of this issue in the FEIS, BLM Even if this Court finds Plaintiffs waived the Complaint’s second claim for relief, Defendants concede that Plaintiffs have not waived the issue of whether BLM violated NEPA through inadequate consideration of consistency with applicable law and policy, see ECF No. 26 at 16, which is a sufficient basis for the Court to enter summary judgment for Plaintiffs on this issue. 6

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now asserts that “NEPA requires nothing more” than cursorily “informing commenters that the WHA and wild horse Handbook ‘provide the necessary authority to establish a non-breeding horse herd’” and informing BLM’s officers (but not the public) that its decision would be controversial merely “because horse advocates opposed” it. ECF No. 26 at 28. Contrary to Defendant’s cramped reading, NEPA requires agencies to “address or refute the concern presented” in comments. Ctr. for Biological Diversity v. U.S. Forest Serv., 349 F.3d 1157, 1168 (9th Cir. 2003). An FEIS must “‘analyze,’ ‘respond to,’ and ‘discuss’” specific issues raised in comments. Pac. Coast Fed’n of Fishermens Ass’ns v. Nat’l Marine Fisheries Serv., 482 F. Supp. 2d 1248, 1255 (W.D. Wash. 2007). Thus, NEPA obligated BLM to respond in the FEIS to commenters’ specific concern that sterilization violates the duty to maintain wild horses’ “self-sustaining populations”—but BLM failed to do so. Because BLM “refus[ed] to engage with the commenters’” arguments, its decision is “arbitrary and capricious on that ground alone.” Del. Dep’t of Natural Res. v. EPA, 785 F.3d 1, 14–15 (D.C. Cir. 2015). Unable to show that the FEIS ever addressed this specific concern, Defendants belatedly offer two flawed and conflicting readings of this regulation to assert that sterilizing the entire Saylor Creek herd comports with the duty to maintain “self-sustaining populations.” First, BLM tries vainly to distinguish the terms “population” and “herd” to argue that it must merely allow reproduction somewhere in the United States. ECF No. 26 at 18. Second, Defendants narrowly argue that the term “‘self-sustaining’ refers to adequate forage, not reproduction,” id. at 19. Defendants never reconcile the conflict in recognizing a duty to allow reproduction while also denying this same duty. And as to the merits, Defendants are wrong on both counts. First, the purported distinction between wild horse “populations” and “herds” lacks merit. Defendants argue that “[t]he term ‘population’ refers to the wild horse populations that BLM

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manages, as a whole, in all of the [HMAs],” in contrast to a “herd” in only one HMA— ostensibly allowing BLM to sterilize an entire “herd” while maintaining “self-sustaining populations.” ECF No. 26 at 18. However, the FEIS itself did not make this distinction, instead using the terms interchangeably, discussing “[h]erd size, or the effective reproducing population.” AR025873 (emphases added). Similarly, when evaluating “Herd Health,” BLM stated that under this regulation “[p]opulation viability may become a concern” when “small herd size . . . increase[s] the possibility [of] inbreeding.” AR177043–44 (emphases added).7 Nor does the false distinction between “population” and “herd” have any basis in science in the record, which also used the terms interchangeably. E.g. AR075361–65 (“[i]n most herds . . . there is little imminent risk of inbreeding or population extinction”); see also AR075409 (“data is consistent with a fairly stable population size, although [one datum] could indicate some recent reduction i[n] herd size”) (emphases added). Scientists distinguish these terms from “metapopulation,” which “refers to two or more local breeding populations . . . linked . . . by dispersal activities of individual animals.” AR075361. Similarly, the NAS Report (which BLM ignored) states “BLM’s free-ranging horse and burro herds can be considered a metapopulation, or a ‘population of populations.’” AR075616. Because the false distinction between “herds” and “populations” lacks any basis in the FEIS or science, Defendants’ argument that sterilizing this herd does not violate the duty to maintain self-sustaining populations is meritless.8

Defendants’ reading of this regulation to apply to all horses that BLM manages “as a whole, in all the [HMAs],” ECF No. 26 at 18, also conflicts with the plural term “populations” in 43 C.F.R. § 4700.0-6(a). The regulation clearly describes multiple “populations,” (i.e. herds) but Defendants now describe a single “population” under BLM management “in all [HMAs].” Thus, Defendants’ new reading of this regulation also fails as a matter of plain language. 7

Defendants’ attempt to bolster this argument with the WHA’s definition of the term “herd,” ECF No. 26 at 18, merely illustrates how BLM unlawfully ignored public input. AWI’s Draft 8

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Second, Defendants’ attempt to restrict this regulation’s scope by arguing that “‘selfsustaining’ refers to adequate forage, not reproduction” is even more deeply flawed. ECF No. 26 at 19. Defendants selectively quote the Federal Register notice for the “self-sustaining populations” regulation, which stated “[t]his cannot be done without adequate forage.” Id. (quoting 51 Fed. Reg. 7410-01, 7411 (Mar. 3, 1986)). However, that quotation explained why a “[s]pecific provision for forage allocation is not necessary” in another regulation—section 4700.0-6(b) rather than 4700.0-6(a). 51 Fed. Reg. at 7411. BLM stated the obvious fact that adequate forage is necessary for a self-sustaining population, but never stated that the duty to maintain self-sustaining populations is somehow limited to forage rather than reproduction. Instead, when discussing section 4700.0-6(a), BLM noted its language aimed to “accommodate” a comment which “urged that more than just museum-exhibit populations should be maintained on the public lands.” Id. Thus, this Federal Register notice, far from supporting sterilization, shows that BLM intended this regulation to be in line with what commenters stated in opposition to sterilization. See AR186247 (a “viable” self-sustaining herd requires horses to “be maintained as real normal functioning herds, not as zoo animals on display”); see also AR169091 (sterilization would “just creat[e] a ‘preserve’ of sterile adult horses”) (emphases added). Accordingly, the Federal Register notice that Defendants now cite (for the first time) actually undermines Defendants’ position rather than supporting it.

EIS comments specifically explained why BLM’s decision to sterilize the Saylor Creek herd is inconsistent with the WHA’s definition. AWI stated that “by defining a wild horse ‘herd’ as ‘one or more stallions and his mares’ and since a ‘stallion’ is defined as an ‘uncastrated adult male horse’ or a horse ‘used for breeding’ (see www.dictionary.com), the [WHA] does not permit the establishment of non-reproducing wild horse herds.” AR169437. BLM offered no response whatsoever to this portion of AWI’s comments, thus violating NEPA. 14

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C.

Defendants Cannot Show That BLM Responded To Comments Criticizing Its Decision As Inconsistent With The Agency’s Handbook.

Plaintiffs explained that several comments called for analysis of conflict between specific provisions of BLM’s Wild Horse Handbook and the decision to sterilize the entire Saylor Creek herd. Commenters noted a set of management actions that BLM’s Handbook indicate should be taken before considering a non-reproducing herd, but BLM never explained how its decision could be consistent with these provisions. Rather than address these comments, BLM relied solely on other parts of its Handbook, ignoring the parts that undermine its decision. BLM violated NEPA by ignoring its own guidance and public comments. ECF No. 20 at 21, 24–26. In response, Defendants again conspicuously ignore the Handbook provisions that commenters explained directly conflict with BLM’s decision to sterilize the Saylor Creek herd. These passages stated that BLM may consider a non-reproducing herd only “[i]f wild horse herd size in small, isolated HMAs is so low that mitigation is not feasible” because “the recommended herd size [of 150-200] cannot be maintained” and other mitigation, such as adding fertile horses, is not viable. AR162801. Plaintiffs explained there was no evidence of any issue identified in BLM’s Handbook as a precondition to a non-reproducing herd. Br. at 24–25. Defendants neither counter this argument nor discuss these Handbook provisions at all; rather, Defendants repeat BLM’s error of ignoring Handbook provisions that commenters identified as conflicting with BLM’s decision and relying only on other provisions that purportedly support BLM. BLM violated NEPA by “refusing to engage with the commenters.” Delaware, 785 F.3d at 14–15. Additionally, Defendants misrepresent the record by asserting the Handbook supports this decision because the Saylor Creek HMA “meets three of [] four criteria” the Handbook stated could make an area suitable for a non-reproducing herd. ECF No. 26 at 19. Defendants identify these four criteria as (1) low ecologic condition; (2) no special or unique herd 15

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characteristics; (3) reliance on private water; and (4) limited public land water. Id. Defendants concede the HMA does not have “low ecologic condition.” Id. BLM’s own evaluation shows the herd shows does have “historic traits and characteristics,” which “have proven to be highly desirable by the adopting public.” AR226252. Likewise, BLM comments in the record state that the claim that the herd relies on private water “is not true” because half the water is from public water rights, AR290651, contradicting Defendants’ position. Thus, what remains after culling unsupportable “criteria” is the mere fact that this herd drinks water from pipelines, which Plaintiffs explained cannot justify BLM’s decision because: (a) the horses “always have sufficient water,” AR025253; (b) the horses have relied on pipelines for the WHA’s entire history; and (c) sterilizing the herd will not change these facts, because even sterile horses drink water. ECF No. 20 at 15–16. Defendants have not rebutted any of these points. Accordingly, BLM violated NEPA by failing even to respond to public comments criticizing the decision as inconsistent with the agency’s own Handbook. VI.

DEFENDANTS FAIL TO SHOW THAT BLM ADEQUATELY RESPONDED TO COMMENTS EXPRESSING OPPOSITION TO ITS DECISION. Plaintiffs explained that BLM violated NEPA by failing to respond to comments

opposing sterilization of the Saylor Creek herd, ECF No. 20 at 18–20, for example because sterilization would “lead to extinction of the herd and impact [its] ability . . . to maintain its wild and free-roaming behavior.” AR169419; see also AR186247; AR169091; AR186246 (all opposing sterilization due to concerns about genetic viability, behavior, and long-term herd survival). Yet despite BLM’s internal awareness of controversy, AR276231, the FEIS neither identified sterilization in the FEIS’s “Issues Addressed” section, which covered “topics where there are substantial, often mutually exclusive differences in opinion,” AR024679, nor disclosed

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opposition to sterilization anywhere in the body of the FEIS. BLM violated NEPA by ignoring opposing views or burying them in an Appendix with a cursory response. ECF No. 20 at 19–20. In response, Defendants fail to meaningfully rebut Plaintiffs’ arguments. For example, Plaintiffs challenged BLM’s summary dismissal of opposition as “non-substantive,” ECF No. 20 at 19–20, and Defendants offer no response. Because BLM’s failure to engage with commenters violates NEPA, id. (citing Delaware, 785 F.3d at 14), summary judgment is proper for Plaintiffs. Moreover, Defendants’ generic defense of BLM’s failure to respond to comments is a meritless attempt at misdirection that cannot excuse BLM’s error. Although Defendants’ brief includes a section captioned “BLM Appropriately Considered, Disclosed, and Responded to Comments,” Defendants neither mention the specific comments that Plaintiffs identified as opposing sterilization, nor identify any part of the FEIS discussing these comments. Instead, Defendants focus on other comments about which Plaintiffs raised different arguments,9 misleadingly rebut arguments Plaintiffs never advanced,10 and assert that BLM complied with NEPA by merely burying comments in an Appendix. ECF No. 26 at 27–29. As the Ninth Circuit stated, “public comment procedures [] at the heart of the NEPA review process . . . require[] responsible opposing viewpoints to be included in the final EIS.” California v. Block, 690 F.2d 753, 770 (1982). An FEIS must “identify opposing views found in the comments,” must provide “reasoned analysis in response,” id. at 773, and must discuss “‘any

Plaintiffs’ brief separately challenged BLM’s failure to address comments challenging the legal basis for its decision, ECF No. 20 at 21–26, which is a distinct issue briefed here supra at 11–14. 9

Defendants assert that Plaintiffs simply “wanted BLM to prioritize wild horses over livestock” and try to defend against an illusory argument “that BLM’s failure to follow [Plaintiffs’] wishes was arbitrary and capricious.” ECF No. 26 at 28–29. Plaintiffs never challenged BLM’s decision for failing to prioritize horses over livestock. Defendants’ argument is a meritless non-sequitur. 10

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responsible opposing view which was not adequately discussed in the draft statement and shall indicate the agency’s response to the issues raised.’” Pac. Coast Fed’n of Fishermen’s Assns., 482 F. Supp. 2d at 1254. (quoting 40 C.F.R. § 1502.9(b)). “[R]elegation [of opposition] to the comment and response section of the appendix,” as BLM did here, “wholly fails to meet the standards for adequate disclosure and discussion” of opposing views because “[d]isclosures and discussions must be in the body of the EIS itself,” id. at 1254–55, which “must not only recite dissenting opinions, [but] must ‘analyze,’ ‘respond to,’ and ‘discuss’ them.” Id. Here, the FEIS’s mere dismissal of opposition in an Appendix violated NEPA. VII.

DEFENDANTS CANNOT JUSTIFY BLM’S FAILURE TO CONSIDER A PARTIALLY REPRODUCING HERD ALTERNATIVE. Plaintiffs explained that BLM failed to consider a partially reproducing herd alternative

(i.e. a mix of fertile and sterile horses in this HMA) suggested in AWI’s Draft EIS comments. BLM failed to “rigorously explore” or even “briefly discuss the reasons for [this alternative] having been eliminated,” as NEPA requires. 40 C.F.R. § 1502.14(a). Indeed, BLM never even acknowledged that AWI suggested this alternative. ECF No. 20 at 26–28.11 In response, Defendants make no effort to show that BLM considered this alternative, instead advancing two baseless post hoc arguments that BLM did not have to consider this alternative: (1) that no commenter raised the alternative clearly enough; and (2) that BLM had no duty to consider it because it was ostensibly not viable. ECF No. 26 at 23–24. These arguments fail both as post hoc justifications (because they are not in the record) and on their merits.

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Plaintiffs explained that, as a separate matter, BLM violated NEPA by offering only entirely reproducing and entirely non-reproducing herd alternatives in an unlawful all-or-nothing analysis. ECF No. 20 at 28 n.8 (citing W. Watersheds Project v. Abbey, 719 F.3d 1035, 1051 (9th Cir. 2013)). Defendants fail to respond, and summary judgment is proper for Plaintiffs. 18

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Despite Defendants’ attempt to obscure AWI’s comments, arguing that they called only for combining fertile and sterile herds throughout western rangelands, ECF No. 26 at 23, AWI clearly asked BLM to evaluate a partially reproducing herd alternative for this HMA: AWI would not object to an alternative that proposed a combination of reproducing and non-reproducing horses to occupy the Saylor Creek Herd Management Area both to maintain a self-sustaining herd that is subject to nonlethal population control (i.e. immunocontraceptives) while also using a portion of the AML to provide a home for already “fixed” animals from long-term holding facilities. . . . Considering the BLM’s legal requirement to consider a range of reasonable alternatives in the RMP/EIS, it is unclear why it did not consider such a combination alternative. AR169445 (emphases added). The argument that AWI did not raise this Saylor Creek-specific alternative “clearly and obviously,” Govt. Br. at 23–24, is entirely without merit.12 Defendants fare no better by arguing—post hoc—that a partially reproducing herd alternative is somehow not viable. A viable alternative meets a federal action’s “purpose and need.” City of Carmel-By-The-Sea v. U.S. Dep’t of Transp., 123 F.3d 1142, 1155 (9th Cir. 1997) (“The stated goal of a project necessarily dictates the range of ‘reasonable’ alternatives”). The Jarbidge RMP revision’s purpose and need is very broad. AR024676–77. Defendants do not argue that a partially reproducing herd would fail to meet this broadly stated purpose and need. Indeed, because BLM’s stated purpose and need aimed to “[p]romote diversity and resilience of biological resources including special status species,” AR024677, a partially reproducing herd would achieve this goal better than a non-reproducing herd by allowing this herd to retain some diversity and resilience. Moreover, by analyzing an alternative with a herd of 600 reproducing

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Defendants do not—and cannot—argue that the fact that AWI raised these comments instead of Plaintiffs operates as any bar to litigation on this issue. “[C]omments submitted by third parties may form the basis of a NEPA lawsuit, so long as the comments brought sufficient attention to the issue.” Pac. Coast Fed’n of Fishermen’s Ass’ns v. U.S. Dep’t of Interior, 929 F. Supp. 2d 1039, 1046, 1046 n.4 (E.D. Cal. 2013) (collecting a “controlling line of cases”). 19

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horses, e.g. AR025162, BLM confirmed that a larger reproducing herd would be viable. If a larger, reproducing herd is viable, then a smaller, partially reproducing herd must be as well. Defendants argue (post hoc) that “partially-reproducing herds rarely reduce population growth,” ECF No. 26 at 24 (emphasis added), but this argument concedes that it is possible for a partially reproducing herd to do so—and thus that the alternative is viable. Defendants also argue (post hoc) that some studies suggest selective sterilization may sometimes be ineffective, id., but studies about how to effectively manage a partially reproducing herd exemplify what BLM was required—but failed—to consider about a partially reproducing herd alternative. Defendants’ further speculation that a partially reproducing herd might be changed into a reproducing herd by unlawful introduction of fertile horses is groundless. First, because a larger, fully reproducing herd is indisputably viable—i.e. meets the purpose and need—the possibility that a partially reproducing herd could become fully reproducing means only that it could transform into another viable alternative. Second, fertile horses could as easily unlawfully join a non-reproducing herd as well. If that prospect renders a partially reproducing herd non-viable, then by Defendants’ own logic, BLM’s selected alternative is not viable either. Accordingly, Defendants’ post hoc arguments for BLM’s failure to consider a partially reproducing herd alternative are without merit and summary judgment is proper for Plaintiffs. VIII. CONCLUSION For these reasons, the Court should enter summary judgment for Plaintiffs. Consistent with the remedial dictates of the APA, the remedy should be tailored to correct the legal violations underlying BLM’s decision to sterilize the entire Saylor Creek herd. Plaintiffs agree with Defendants that additional briefing could assist the Court in fashioning a proper remedy.

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Respectfully submitted, /s/ William N. Lawton___ William N. Lawton (admitted pro hac vice) [email protected] Oregon Bar No. 143685 DC Bar No. 1046604 Meyer Glitzenstein & Eubanks LLP 4115 Wisconsin Ave. NW, Suite 210 Washington, DC 20016 (202) 588-5206 (phone) / (202) 588-5409 (fax) William S. Eubanks II (admitted pro hac vice) [email protected] D.C. Bar No. 987036 Meyer Glitzenstein & Eubanks LLP 2601 S. Lemay Avenue, Unit 7-240 Fort Collins, CO 80525 (970) 703-6060 (phone) / (202) 588-5409 (fax) Dana Johnson (Idaho Bar No. 8359) [email protected] Law Office of Dana Johnson, PLLC P.O. Box 9623 Moscow, ID 83843 (208) 310-7003 (phone) Counsel for Plaintiffs

CERTIFICATE OF COMPLIANCE Pursuant to Local Rule 5.2(a), this Court’s Scheduling Order of April 5, 2016, ECF No. 12, and this Court’s Order Granting Defendants’ Motion for Extension of Time on January 9, 2017, ECF No. 25, I hereby certify that this Brief complies with all relevant rules regarding the form and length of briefs. CERTIFICATE OF SERVICE I hereby certify that on June 5, 2017, I filed the foregoing brief using the CM/ECF system, which sent a notice of filing to the following persons noted below:

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Dana Johnson: [email protected] William S. Eubanks II: [email protected] William N. Lawton: [email protected] Rebecca Jaffe: [email protected] Christine England: [email protected]

Respectfully submitted, /s/ William N. Lawton___ William N. Lawton (admitted pro hac vice) [email protected] Oregon Bar No. 143685 DC Bar No. 1046604 Meyer Glitzenstein & Eubanks LLP 4115 Wisconsin Ave. NW, Suite 210 Washington, DC 20016 (202) 588-5206 (phone) / (202) 588-5409 (fax)

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