Friends of Animals v. Haaland

• Court: District Court, D. Nevada
• Decided: July 30, 2024
• Docket: 3:22-cv-00365
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 FRIENDS OF ANIMALS, Case No. 3:22-cv-00365-ART-CLB

4 Plaintiff, ORDER v. 5 DEBORAH HAALAND, et al., 6 Defendants. 7 8 Plaintiff Friends of Animals, a non-profit corporation, brings this action 9 against Defendants Deborah Haaland, the Secretary of the Interior, and the 10 United States Bureau of Land Management (“BLM”), alleging that Defendants 11 violated various federal laws when they approved a contract for a new off-range 12 corral (“ORC”) on private land near Winnemucca, Nevada to contain and feed up 13 to 4,000 wild horses and burros. Now pending before the Court are the parties’ 14 cross-motions for summary judgment. (ECF Nos. 26, 34.) For the reasons 15 stated, the Court will deny Plaintiff’s Motion for Summary Judgment and grant 16 Defendants’ Motion for Summary Judgment. 17 I. FACTUAL AND PROCEDURAL HISTORY 18 This litigation centers on BLM’s approval of a contract for a new ORC in 19 Winnemucca, Nevada. 20 BLM manages the nation’s public lands. 43 U.S.C. § 1732(a). In 1971, 21 Congress passed the Wild Horse Act (“the Act”), which “authorize[s] and direct[s] 22 [BLM] to protect and manage wild free-roaming horses and burros as 23 components of the public lands.” 16 U.S.C. § 1333(a). Congress passed the Act 24 in response to decreased wild horse populations. 16 U.S.C. § 1331. By 1978, 25 the wild horse and burro population rebounded significantly, so Congress 26 amended the Act “to prevent a successful program from exceeding its goals and 27 causing animal habitat destruction.” Am. Horse Prot. Ass'n, Inc. v. Watt, 694 28 F.2d 1310, 1316 (D.C. Cir. 1982) (quoting H.R. Rep. No. 95–1122, 95th Cong., 1 2d Sess. 23 (1978)). “The main thrust of the 1978 amendments is to cut back 2 on the protection the Act affords wild horses, and to reemphasize other uses of 3 the natural resources wild horses consume.” Id. 4 Under the Act, BLM must “manage wild free-roaming horses and burros 5 in a manner that is designed to achieve and maintain a thriving natural 6 ecological balance on the public lands.” 16 U.S.C. § 1333(a). Under this 7 directive, BLM designates herd management areas and sets appropriate 8 management levels for the wild horse and burro populations within each area. 9 16 U.S.C. § 1333(b)(1); 43 C.F.R. § 4710.3-1. The Act requires that BLM 10 maintain a current inventory of wild horses and authorizes BLM to use a variety 11 of methods to achieve appropriate management levels, including the removal of 12 “excess animals.” 16 U.S.C. § 1333(b)(1). The Act defines “excess animals” as 13 those “wild free-roaming horses or burros . . . which must be removed from an 14 area in order to preserve and maintain a thriving natural ecological balance and 15 multiple-use relationship in that area.” Id. § 1332(f). 16 To manage the overpopulation of wild horses and burros, BLM will 17 remove, or gather, excess animals from the range and move them to short-term 18 ORCs. 16 U.S.C. § 1333(a); AR 9427. An ORC is a short-term holding facility 19 where excess animals removed from public lands are prepared for adoption, 20 sale with limitations, or transfer to a long-term holding facility. AR 9492. 21 The BLM initiated the approval of the Winnemucca ORC in late 2020 22 when it solicited contractors to provide ORC space in Idaho, Nevada, and Utah 23 that could accommodate 500 to 10,000 wild horses and burros BLM removed 24 from public lands in the West. AR 9488. In response to the solicitation, JS 25 Livestock submitted a proposal for an ORC that would hold 4,000 wild horses 26 and burros on 100 acres of private land near Winnemucca. AR 19. BLM issued 27 an “apparent awardee letter” to JS Livestock on August 3, 2021, stating it 28 would be awarded the contract upon satisfaction of the necessary prerequisites, 1 including environmental review under the National Environmental Policy Act 2 (“NEPA”). AR 10665-668; AR 9500. 3 BLM completed its preliminary environmental assessment (“Preliminary 4 EA”) on September 2, 2021. AR 53-75. BLM then made the Preliminary EA 5 available online and opened up a fifteen-day public comment period, which was 6 then extended for an additional fifteen days. Suppl. AR 76-77; AR 51-52. 7 During the comment period, BLM received over 6,000 individual letters and 8 emails raising concerns regarding, among other things: air quality (odors and 9 dust), animal waste management, disposal of dead animals, groundwater 10 contamination, disease transmission, public access to the facility, animal health 11 and safety, climate change, social and economic values, previous litigation, 12 environmental justice, flooding, grazing, NEPA process, water rights, and public 13 health and safety. AR 29. 14 BLM issued the final environmental assessment (“EA”) on November 3, 15 2021. AR 11-50. BLM also issued a finding of no significant impact (“FONSI”) 16 and a Record of Decision (“ROD”). AR 1-10. BLM concluded that no 17 environmental impact statement (“EIS”) was necessary because the 18 Winnemucca ORC would not significantly impact the environment. Id. 19 BLM issued the contract for the ORC to JS Livestock on September 21, 20 2022, AR 10676-722, after JS Livestock obtained a Nevada Division of 21 Environmental Protection (“NDEP”) concentrated animal feeding operation 22 (“CAFO”) permit under 40 C.F.R. §§ 122.23, 122.42(e) and 412.13, AR 18-19. 23 This lawsuit followed. 24 Plaintiff’s Motion for Summary Judgment (ECF No. 26) argues that 25 Defendants violated NEPA by failing to take a “hard look” at the environmental 26 impacts of the Winnemucca ORC, failing to consider reasonable alternatives, 27 and failing to prepare an EIS. Plaintiffs further argue that Defendants have 28 violated the Wild Horse Act by failing to protect wild horses and burros and by 1 treating them inhumanely. 2 Defendants’ Response and Cross-Motion for Summary Judgment (ECF 3 No. 34) argues that Plaintiff’s claim under the Wild Horse Act is meritless and 4 that BLM’s environmental review of the Winnemucca ORC complied with NEPA. 5 (ECF No. 34.) Defendants also allege that Plaintiff lacks standing for its claims. 6 Both parties filed responsive pleadings to the cross-motions for summary 7 judgment. (ECF Nos. 35, 37.) 8 II. STANDARD OF REVIEW 9 All claims in this case are governed by the APA. 5 U.S.C. §§ 701-706. The 10 APA requires courts to set aside agency actions that are “arbitrary, capricious, 11 an abuse of discretion, or otherwise not in accordance with law; [or] without 12 observance of procedure required by law[.]” 5 U.S.C. § 706(2). “This standard of 13 review is ‘highly deferential, presuming the agency action to be valid and 14 affirming the agency action if a reasonable basis exists for its decision.’” Nw. 15 Ecosystem All. v. U.S. Fish & Wildlife Serv., 475 F.3d 1136, 1140 (9th Cir. 2007) 16 (quoting Independent Acceptance Co. v. California, 204 F.3d 1247, 1251 (9th 17 Cir. 2000)). Review under the APA is limited to the administrative record that 18 was before the agency at the time of its decision. Sw. Ctr. for Biological Diversity 19 v. U.S. Forest Serv., 100 F.3d 1443, 1450 (9th Cir. 1996). A reviewing court may 20 not substitute its judgment for the agency’s. Nw. Ecosystem All. v. U.S. Fish & 21 Wildlife Serv., 475 F.3d at 1140. A court’s task “is simply to ensure that the 22 agency considered the relevant factors and articulated a rational connection 23 between the facts found and the choices made.” Id. (internal quotation marks 24 omitted). 25 III. DISCUSSION 26 A. Plaintiff Has Standing to Bring Its Claims. 27 It is Plaintiff’s burden to establish that (1) it has suffered an “injury in 28 fact” that is “concrete and particularized” and “actual or imminent,” not 1 “conjectural” or “hypothetical”; (2) the injury is fairly traceable to Defendants’ 2 challenged action, meaning there is “a causal connection between the injury 3 and the conduct complained of”; and (3) it is likely that a favorable judicial 4 decision will prevent or redress the injury. Lujan v. Defs. of Wildlife, 504 U.S. 5 555, 560–61 (1992). 6 Here, Plaintiff argues it has “representational standing” to bring suit on 7 behalf of its members because (1) its members would otherwise have standing 8 to sue in their own right; (2) the interests at stake are germane to Friends of 9 Animals’ purpose; and (3) neither the claims asserted nor the relief requested 10 requires the participation of individual members in the lawsuit. See Hunt v. 11 Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977). Plaintiff points to 12 declarations from its members to show that its members have standing to sue 13 in their own right. (ECF Nos. 26-1, 26-2, 26-3, 35-1, 35-2, 35-3.) 14 Plaintiff alleges injury in fact under two theories. First, Plaintiff’s 15 members allege injury to their aesthetic interests by seeing wild horses treated 16 inhumanely at the Winnemucca ORC. Second, Plaintiff’s members allege an 17 injury to their aesthetic interest in observing wild horses on the range. 18 Defendants argue that the aesthetic injuries alleged by Plaintiff’s members are 19 insufficient to confer standing. 20 “[T]he desire to use or observe an animal species, even for purely esthetic 21 purposes, is undeniably a cognizable interest for purpose of standing.” Lujan, 22 504 U.S. at 562-63. Plaintiff’s members have an established cognizable interest 23 in seeing wild horses treated humanely and in observing wild horses on the 24 range. To establish injury in fact, Plaintiff’s members must point to “specific 25 facts” showing they will be “directly affected” by the challenged action, “apart 26 from their special interest in the subject.” Id. at 563 (internal quotation marks 27 and omissions omitted). 28 Plaintiff’s members have met their burden. Two of Plaintiff’s members live 1 in Nevada and allege a deep connection to wild horses and burros throughout 2 Nevada and the West. (ECF No. 26-1 at ¶¶ 3-7; ECF No. 26-2 at ¶¶ 2-5.) They 3 feel compelled to check on wild horses and burros at the Winnemucca ORC and 4 have specific plans to do so. (ECF No. 26-1 at ¶ 9; ECF No. 26-2 at ¶ 8.) The 5 “concrete plans” included in the members’ declaration are sufficient to support 6 a finding of an “actual or imminent” injury. Lujan, 504 U.S. at 564. 7 Plaintiff’s members describe multiple conditions particular to the 8 Winnemucca ORC that are “inhumane and dangerous,” including that the area 9 has “frigid winter weather” and “extreme heat in the summer,” the soils in the 10 area are prone to flooding and dust which will harm wild horses and burros and 11 likely cause dust pneumonia, and the size and capacity of the ORC will “pose a 12 serious, unnecessary risk of infection and disease transmission that will likely 13 lead to suffering and death.” (ECF No. 26-1 at ¶ 11; ECF No. 26-2 at ¶ 7-8.) 14 Seeing the animals at the Winnemucca ORC will cause them “great sadness” 15 and distress. (ECF No. 26-1 at ¶ 9; ECF No. 26-2 at ¶ 8.) Given these specific 16 allegations of inhumane conditions and plans to visit the Winnemucca ORC, 17 Plaintiff’s members have established an imminent, concrete, and particularized 18 injury in fact to their aesthetic interests in observing wild horses and burros in 19 humane conditions. 20 The Court also finds a sufficient causal connection between the alleged 21 injury and the action Plaintiff is challenging. Here, Plaintiff is challenging 22 Defendant’s decision awarding the Winnemucca ORC contract to JS Livestock. 23 But for that decision, Plaintiff’s members would not be subjected to the alleged 24 injury to their aesthetic interests in observing wild horses and burros in 25 humane conditions. 26 Finally, a favorable outcome in this matter will likely redress or prevent 27 the alleged injury. Should this Court find in Plaintiff’s favor, Plaintiff’s members 28 will not be subjected to viewing wild horses and burros in allegedly inhumane 1 conditions. Thus, Plaintiff’s members have established standing to sue in their 2 own right. In addition, the interests at stake are germane to Plaintiff’s interests 3 in protecting animals, and neither the claims asserted nor the relief requested 4 requires the participation of individual members in the lawsuit. The Court 5 therefore finds that Plaintiff has established “representational standing” to bring 6 suit on behalf of its members. 7 B. Defendants’ Environmental Review Complied with NEPA. 8 “NEPA is at its heart a procedural statute and requires federal agencies to 9 take a hard look at the environmental consequences of their actions.” Env't Def. 10 Ctr. v. Bureau of Ocean Energy Mgmt., 36 F.4th 850, 872 (9th Cir. 2022) 11 (internal quotation marks omitted). NEPA requires federal agencies to “identify, 12 consider, and disclose to the public relevant environmental information early in 13 the process before decisions are made and before actions are taken.” 40 C.F.R. 14 § 1500.1(b). The statute requires that agencies prepare a detailed environmental 15 impact statement (EIS) before they undertake a major federal action that 16 “significantly affect[s] the quality of the human environment.” 42 U.S.C. § 17 4332(C). If a proposed action is not likely to have significant effects or the 18 significance of the effects is unknown, an environmental assessment (EA) is 19 appropriate. 40 C.F.R. § 1501.3(c). 20 “The purpose of an EA is to provide the agency with sufficient evidence 21 and analysis for determining whether to prepare an EIS or to issue a FONSI.” 22 Metcalf v. Daley, 214 F.3d 1135, 1143 (9th Cir. 2000). “Because the very 23 important decision whether to prepare an EIS is based solely on the EA, the EA 24 is fundamental to the decision-making process.” Id. The EA must include 25 “sufficient evidence and analysis” to determine whether the effects of the 26 proposed action are significant enough to trigger an EIS. 40 C.F.R. § 1501.5(a), 27 (c). 28 If an EA leads the agency to conclude that environmental impacts are 1 significant, the agency must prepare a detailed EIS. 40 C.F.R. § 1501.6(a)(3). 2 Alternatively, an agency may prepare a FONSI “if the agency determines, based 3 on the environmental assessment, that NEPA does not require preparation of an 4 environmental impact statement because the proposed action will not have 5 significant effects.” 40 C.F.R. § 1501.6(a)(1). If the agency “decides not to 6 prepare an EIS, it must supply a convincing statement of reasons to explain 7 why a project's impacts are insignificant. . . . The statement of reasons is 8 crucial to determining whether the agency took a hard look at the potential 9 environmental impact of a project.” Blue Mountains Biodiversity Project v. 10 Blackwood, 161 F.3d 1208, 1212 (9th Cir. 1998) (internal quotation marks and 11 citation omitted). 12 Here, Plaintiff is challenging the sufficiency of Defendants’ NEPA review of 13 the Winnemucca ORC contract. Defendants’ NEPA review included a 14 Preliminary EA, which was published online and open for public comment. 15 Defendants then issued a Final EA, which included a FONSI and a final 16 decision awarding the contract for the Winnemucca ORC to JS Livestock. 17 According to Plaintiff, Defendants failed to take necessary “hard look” at 18 the environmental impacts of the Winnemucca ORC. Specifically, Plaintiff is 19 challenging the review for being rushed to comply with a contractual obligation 20 facing the contract awardee, for impermissibly relying on a state CAFO permit, 21 and for ignoring the impacts on wild horses and burros. Plaintiff also alleges 22 that Defendants failed to consider reasonable alternatives to the Winnemucca 23 ORC and failed to provide a convincing statement explaining how the effects 24 would be insignificant. 25 While Defendants were required to take a “hard look” at the 26 environmental impacts of the Winnemucca ORC, “[a]n agency’s actions need not 27 be perfect.” Forest Guardians v. U.S. Forest Serv., 329 F.3d 1089, 1099 (9th Cir. 28 2003). “[A court] may only set aside decisions that have no basis in fact, and 1 not those with which we disagree.” Id. Under the deferential standard of review 2 mandated by the APA, the Court is satisfied that Defendants took the required 3 “hard look” and that the decision was not arbitrary or capricious. 4 First, Plaintiff’s claim that Defendants’ environmental review was rushed 5 lacks a sufficient basis in law. NEPA does not dictate any minimum time for 6 conducting a NEPA analysis. The timeframe in which a “hard look” can take 7 place is determined by the scope and complexity of the proposed action and 8 agency staff’s ability to complete the analysis. Plaintiff argues that BLM rushed 9 its analysis to align with contractual obligations facing JS Livestock and points 10 to emails showing conversations amongst BLM staff as evidence of the rushed 11 environmental analysis. Compliance with NEPA, though, is not dictated by how 12 long BLM’s experts took to complete their analysis. It is also not damning for 13 BLM to link its decision-making timeline to the contracting process for the 14 proposed action. If Defendants had engaged in their NEPA review after awarding 15 the contract for the Winnemucca ORC, then their review would be untimely. 16 See, e.g., Save the Yaak Comm. v. Block, 840 F.2d 714, 718 (9th Cir. 1988) 17 (construction contracts awarded before preparation of EAs). But that is not the 18 case here. Moreover, BLM’s environmental review included ample time for 19 public comment and participation. The Court therefore finds that Plaintiff’s 20 argument about a “rushed” environmental review lacks merit. 21 Plaintiff’s argument that Defendants improperly relied on a state CAFO 22 permit when BLM issued its FONSI and final decision also fails. Plaintiff cites a 23 recent Ninth Circuit decision for the proposition that “federal agencies [may not] 24 rely on state permits to satisfy review under NEPA.” Env't Def. Ctr. v. Bureau of 25 Ocean Energy Mgmt., 36 F.4th 850, 874 (9th Cir. 2022). But Env't Def. Ctr. is 26 distinguishable. There, the court found that the federal defendants improperly 27 relied on a NPDES permit “to conclude that any impacts from offshore well 28 stimulation treatments to the marine environment would be insignificant.” Id. 1 The NPDES permit, though, “was not created or intended to be used for the 2 offshore well stimulation treatments at issue.” Id. Further, the court found the 3 testing required by the NPDES permit “inadequate to measure the impacts of 4 well stimulation treatments because . . . testing is not conducted in conjunction 5 with the use of well stimulation treatments.” Id. at 875. Finally, the court found 6 that the agencies relied on a “general permit . . . to evaluate the impacts from 7 specific well stimulation treatments,” and the permit would have to be modified 8 to test for the fluids used in well stimulation treatments. Id. Because the 9 NPDES permit was issued by a different agency, the federal defendants had no 10 power to modify it. Id. Therefore, the court found that reliance on the NPDES 11 permit was improper. None of these circumstances are present here. 12 First, the CAFO permit is well-established and is designed to specifically 13 address the precise impacts of an animal operation such as such the 14 Winnemucca ORC. There is no dispute that the Winnemucca ORC is defined as 15 a CAFO and is therefore subject to the more stringent regulations applicable to 16 such a facility. See AR 8567 (defining facility that holds at least 500 horses as a 17 “Large CAFO”). Second, the fit between the permit and the regulated activity is 18 perfect because the effluents of a horse corral are precisely the type of discharge 19 the CAFO permit is designed to prevent. Third, no modification to the CAFO 20 permit is required because it is not a general permit, but one that is tailored to 21 specifically address the exact type of animal facility at issue. The Court 22 therefore finds that reliance on the CAFO permit was reasonable under these 23 circumstances. 24 Plaintiff’s other “hard look” arguments are unavailing. BLM addressed 25 potential impacts of flooding by not only making compliance with the CAFO 26 permit a mandatory requirement of the contract, but also by recommending 27 additional measures to prevent runoff in the event of a 100-year flood. AR 3, 29. 28 The administrative record also reflects that Defendants considered groundwater 1 impacts. AR 6009-10. Finally, the administrative record shows that Defendants 2 also considered specific conditions of the soil at the Winnemucca ORC and how 3 the ORC will impact such soil. AR 26, 61-62. The Court thus finds that 4 Defendants completed an adequate NEPA review. 5 In addition, contrary to Plaintiff’s arguments, Defendants adequately 6 considered the effects of the Winnemucca ORC on any wild horses and burros 7 that will live there. The EA explains that “[p]er the conditions set out in the 8 Solicitation, the ORC facility would be required to [h]andle, treat, and maintain 9 all WHB in a humane manner in accordance with BLM guidance and policies, 10 including Permanent Instruction Memorandum (PIM) 2021-002, Wild Horse and 11 Burro Comprehensive Animal Welfare Program (CAWP).” AR 19. The standards 12 set forth in the PIM and CAWP are not at issue in this NEPA challenge. Thus, 13 Defendants considered the effects of the Winnemucca ORC on wild horses and 14 burros and applied reasonable, established standards of care. 15 The Court also finds that Defendants considered a reasonable range of 16 alternatives. “Agencies do not have to consider infinite, unfeasible, or 17 impractical alternatives, but they must consider reasonable ones.” Env't Def. 18 Ctr., 36 F.4th at 877. The range of alternatives is dictated by the nature and 19 scope of the proposed action. Alaska Wilderness Recreation & Tourism Ass'n v. 20 Morrison, 67 F.3d 723, 729 (9th Cir. 1995). “Whether the range of alternatives 21 considered is reasonable is to some degree circumscribed by the scope of the 22 statement of “‘purpose and need.’” Env't Def. Ctr., 36 F.4th at 876 (quoting 23 Westlands Water Dist. v. U.S. Dept. of Interior, 376 F.3d 853, 865 (9th Cir. 24 2004)). “Agencies enjoy a good deal of discretion in framing the purpose and 25 need of an EA or EIS, but the statement cannot unreasonably narrow the 26 agency's consideration of alternatives so that the outcome is preordained.” Id. 27 (internal quotation marks, citation, and omission omitted). 28 Here, the decision under consideration was whether to proceed with a 1 contract for an ORC. The need for the proposed action as stated by BLM is “to 2 provide the holding space necessary to safely and humanely care for excess 3 WHB removed from public lands consistent with authority provided in Section 3 4 of the WFRHBA.” AR 17. BLM’s framing of the need statement is not 5 unreasonably narrow. It is properly tailored to the scope of the decision under 6 consideration. It also does not lead to a preordained conclusion, so long as BLM 7 adequately considered the alternative of no action. 40 C.F.R. § 1502.14(c). 8 Here, Defendants properly considered the no action alternative. The EA 9 explains that under the no action alternative, the project site would not be 10 impacted because there would be no change to the local environment due to 11 any federal action. AR 28. This consideration is sufficient under NEPA. 12 Plaintiff’s argument that consideration of only the proposed action and 13 the no action alternative was insufficient is incorrect. “The statutory and 14 regulatory requirements that an agency must consider ‘appropriate’ and 15 ‘reasonable’ alternatives does not dictate the minimum number of alternatives 16 that an agency must consider.” Native Ecosystems Council v. U.S. Forest Serv., 17 428 F.3d 1233, 1246 (9th Cir. 2005). “The regulation does not impose a 18 numerical floor on alternatives to be considered.” Id. “So long as all reasonable 19 alternatives have been considered and an appropriate explanation is provided 20 as to why an alternative was eliminated, the regulatory requirement is 21 satisfied.” Id. (internal quotation marks omitted). 22 Here, the scope of the decision considered and the need for the proposed 23 project make it reasonable for BLM to only consider granting the contract or not 24 granting the contract. Analysis of alternatives for issuing a contract with 25 different terms and requirements falls outside the purpose and need. Similarly, 26 Defendants were not required to analyze alternatives that would address 27 Plaintiff’s proposed need of “providing more space” for wild horses and burros. 28 Here, Defendants needed only to consider alternatives that achieved the stated 1 purpose of providing “holding space.” Defendants acted reasonably in declining 2 to consider proposed alternatives that are either redundant or not compatible 3 with the purpose of the proposed action. Given the narrow nature and scope of 4 the proposed action, the Court finds that Defendants considered a reasonable 5 range of alternatives. 6 Finally, Defendants provided an adequate and convincing statement 7 supporting the FONSI. AR 7-10. In considering the potentially affected 8 environment, agencies should consider the affected area and its resources. 40 9 C.F.R. § 1501.3(d)(1). In considering the degree of the effects, agencies should 10 consider: (i) short-and long-term effects; (ii) beneficial and adverse effects; (iii) 11 effects on public health and safety; and (iv) effects that would violate Federal, 12 State, Tribal, or local law protecting the environment. 40 C.F.R. § 1501.3(d)(1), 13 (2). Here, BLM considered these factors as required by the CEQ regulations and 14 concluded that the proposed action would not cause significant environmental 15 impacts. AR 7-10. BLM therefore was not required to prepare an EIS. 16 Plaintiff argues that Defendants prepared a “mitigated FONSI” which 17 required a more robust discussion of the proposed mitigation measures in order 18 to satisfy NEPA. Plaintiff is incorrect. “[A]n agency may incorporate mitigation 19 into the project design so that significant impacts are avoided, rather than 20 mitigated after the project is developed.” W. Watersheds Project v. Lueders, 122 21 F. Supp. 3d 1039, 1052 (D. Nev. 2015), aff'd sub nom. W. Watersheds Project v. 22 Ruhs, 701 F. App'x 651 (9th Cir. 2017) (citing Envtl. Prot. Info. Ctr. v. Forest 23 Service, 451 F.3d 1005, 1015 (9th Cir. 2006)). “In such situations, the agency 24 need not separately evaluate whether mitigation adopted after the fact would 25 reduce impacts to a level of non-significance.” Id. Here, Defendants incorporated 26 mitigation, including the required CAFO permit, into the project design so that 27 significant impacts are avoided, rather than mitigated after the fact. Thus, 28 Defendants did not need to separately evaluate mitigation measures adopted 1 after the project was developed. 2 The Court therefore finds that Defendants provided a convincing 3 statement supporting the FONSI and that no EIS was required. Thus, 4 Defendant’s environmental review of the Winnemucca ORC complied with the 5 requirements of NEPA. 6 C. Defendants Have Not Violated the Wild Horse Act. 7 The Wild Horse Act requires BLM to “protect and manage wild free- 8 roaming horses and burros as components of the public lands . . . in a manner 9 that is designed to achieve and maintain a thriving natural ecological balance 10 on the public lands.” 16 U.S.C. § 1333(a). The Act’s implementing regulations 11 require BLM to manage wild horses and burros “as self-sustaining populations 12 of healthy animals in balance with other uses and the productive capacity of 13 their habitat.” 43 C.F.R. § 4700.0-6(a). The regulations define humane 14 treatment and inhumane treatment. See 43 C.F.R. § 4700.0-5(e) (“Humane 15 treatment means handling compatible with animal husbandry practices 16 accepted in the veterinary community, without causing unnecessary stress or 17 suffering to a wild horse or burro.”); 43 C.F.R. § 4700.0-5(f) (“Inhumane 18 treatment means any intentional or negligent action or failure to act that causes 19 stress, injury, or undue suffering to a wild horse or burro and is not compatible 20 with animal husbandry practices accepted in the veterinary community.”). The 21 regulations prohibit “[t]reating a wild horse or burro inhumanely.” 43 C.F.R. § 22 4770.1(f). 23 Plaintiff argues that Defendants’ decision to issue a contract for the 24 Winnemucca ORC violates the Wild Horse Act’s mandate to protect wild horses 25 and burros and violates the prohibition on treating wild horses and burros 26 inhumanely. Thus, under the APA, Plaintiff asks this Court to “set aside” the 27 challenged agency action because it is “not in accordance with law.” 5 U.S.C. §§ 28 706(2), (2)(a). 1 Defendants contend that Plaintiff is inappropriately challenging BLM’s 2 separate excess determinations and gather decisions for herd management 3 areas on public land. Further, Defendants argue that even if Plaintiff’s challenge 4 is relevant to the Winnemucca ORC contract decision at issue, BLM’s 5 established standards for care of animals in ORCs are humane and reasonable. 6 Without reaching Defendants’ first argument, the Court agrees with Defendants 7 and finds that BLM’s established standards for care are humane and 8 reasonable. 9 Plaintiff cites various veterinary experts to establish that the conditions at 10 the Winnemucca ORC will be inhumane and points to specific conditions that 11 will allegedly lead to unnecessary harm and suffering for wild horses and burros 12 kept there. (ECF No. 26 at 36-40.) But the record shows that the Winnemucca 13 ORC will meet the standards of care mandated under the Comprehensive 14 Animal Welfare Program (“CAWP”), informal guidance developed by BLM to 15 ensure consistent humane treatment of wild horse and burros in BLM’s care. 16 See, e.g., AR 19-20, 38, 9546-47, 9543-65, 10682-84. Additionally, the terms of 17 the contract provide that a contracting officer from BLM will ensure the ORC 18 complies with the established standard of care under the CAWP. AR 9501. 19 Plaintiff’s arguments essentially challenge the standards of care in the 20 CAWP as incompatible with the Wild Horse Act. The issue before this Court is 21 BLM’s issuance of a contract for the Winnemucca ORC. The Court is satisfied 22 that BLM’s reliance on the CAWP for the standard of care in the Winnemucca 23 ORC was reasonable under the circumstances and will defer to the agency’s 24 judgment on what constitutes humane treatment. Nw. Ecosystem All. v. U.S. 25 Fish & Wildlife Serv., 475 F.3d at 1140 (holding that a reviewing court may not 26 substitute its judgment for the agency’s). 27 IV. CONCLUSION 28 IT IS THEREFORE ORDERED that Plaintiff’s Motion for Summary 1 || Judgment (ECF No. 26) is DENIED. 2 IT IS FURTHER ORDERED that Defendants’ Cross-Motion for Summary 3 || Judgment (ECF No. 34) is GRANTED. 4 The Clerk of the Court is directed to enter judgment accordingly. 5 6 DATED THIS 30t day of July 2024. 7 Ans jlosed Jer 8 ANNE R. TRAUM 9 UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28