Friends of Animals v. U.S. Bureau of Land Management

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

FRIENDS OF ANIMALS,

Plaintiff, Civil Action No. 18-2029 (RDM) v.

UNITED STATES BUREAU OF LAND MANAGEMENT,

Defendant.

MEMORANDUM OPINION AND ORDER

In 2018, the Bureau of Land Management (“BLM” or “Bureau”) decided to gather wild

horses inside and adjacent to the Onaqui Mountain Herd Management Area (“Onaqui Mountain

HMA”) to reduce the number of horses to the low end of the appropriate management level

(“AML”) of 121–210 horses. Under that plan, the Bureau would conduct an initial gather and

would then return periodically over a period of ten years to maintain AML by removing excess

wild horses and administering a fertility control vaccine. The Bureau started its initial gather on

September 11, 2019, and continued the gather through August 2020, but, following the gathers,

the wild horse population remained more than “two times . . . the specified AML.” Dkt. 64-10 at

2 (Gates Decl. ¶ 4). Although the Bureau did not plan to conduct a further gather at the Onaqui

Mountain HMA until 2022, it has accelerated its efforts due to the historic drought that has

gripped the American West. In a typical year, the Onaqui Mountain HMA receives about 10

inches of annual precipitation; from April through June 2021, the area received less than an inch

of rain, roughly five percent of typical rainfall. As a result, little-to-no vegetation has grown,

and, according to the Bureau, the wild horses are facing a perilous year. To alleviate pressure on the herd and public land in the area, the BLM plans to round up

approximately 400 horses, to return approximately 100 (about half of which will receive the

fertility control vaccine) to the range, and to remove about 300 permanently from the range,

beginning on July 13, 2021. Dkt. 62-6 (Best Decl. Ex. 1); Dkt. 64 at 32–33; Dkt. 66. Plaintiff

Friends of Animals (“FOA”) seeks a preliminary injunction to block that gather, alleging

violations of the Wild Free-Roaming Horses and Burros Act (“WHA” or “the Act”), 16 U.S.C.

§ 1331 et seq.; the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq.; and

the Administrative Procedure Act (“APA”), 5 U.S.C. § 706. Dkt. 62. Each side contends that its

approach will protect the horses and that horses will suffer (and die) unnecessarily if the

opposing side prevails.

For the reasons explained below, the Court concludes that FOA has not carried its burden

to justify the extraordinary relief that it seeks and will, accordingly, DENY the pending motion

for a preliminary injunction.

I. BACKGROUND

A. Wild Free-Roaming Horses and Burros Act

The WHA, enacted in 1971, “declares that wild free-roaming horses and burros are living

symbols of the historic and pioneer spirit of the West . . . that . . . contribute to the diversity of

life forms within the [n]ation and enrich the lives of the American people . . . as an integral part

of the natural system of the public lands.” 16 U.S.C. § 1331; see also H.R. Rep. No. 92-681, at 7

(1971). Notwithstanding the importance of these animals, however, they constitute only a

fraction of the wildlife on public land, which in turn serves uses beyond the conservation of

wildlife. 43 C.F.R. § 4700.0-6; see, e.g., Dkt. 46-2 at 283–84 (discussing migratory birds, the

greater sage-grouse, and endangered species in the Onaqui Mountain HMA); id. at 463 (listing

2 forage distribution for livestock). The WHA, therefore, tasks the Secretary of the Interior (acting

through BLM) with “manag[ing] wild free-roaming horses and burros in a manner that is

designed to achieve and maintain a thriving natural ecological balance on” such lands. 16 U.S.C.

§ 1333(a); see also id. § 1332(a) (“‘Secretary’ means the Secretary of the Interior when used in

connection with public lands administered by [her] through the Bureau of Land Management.”).

The legislative purpose to strike this balance—and, more importantly, to require the

Secretary to strike this balance—pervades the WHA. Most notably for present purposes, the Act

requires the Secretary to “maintain a current inventory of wild free-roaming horses and burros on

given areas of the public lands” for the purpose of (1) setting “appropriate management levels of

wild free-roaming horses and burros on these areas;” (2) determining “whether and where an

overpopulation exists and whether action should be taken to remove excess animals;” and (3)

deciding “whether [AMLs] should be achieved by the removal or destruction of excess animals,

or other options (such as sterilization, or natural controls on population levels).”

Id. § 1333(b)(1). To make these determinations, the Secretary must consult with the U.S. Fish

and Wildlife Service, relevant state wildlife agencies, “such individuals independent of [f]ederal

and [s]tate government as have been recommended by the National Academy of Sciences,” and

other individuals with “scientific expertise and special knowledge of wild horse and burro

protection, wildlife management and animal husbandry as related to rangeland management.”

Id.

Although the statute grants the Secretary (and BLM) considerable discretion, several

nondiscretionary parameters govern the removal of wild horses from the range:

Where the Secretary determines on the basis of (i) the current inventory of lands within [her] jurisdiction; (ii) information contained in any land use planning completed pursuant to [the Federal Land Policy and Management Act of 1976]; (iii) information contained in court ordered environmental impact statements . . .

3 and (iv) such additional information as becomes available to [her] from time to time, including that information developed in the research study mandated by this section, or in the absence of the information contained in (i-iv) above on the basis of all information currently available to [her], that an overpopulation exists on a given area of the public lands and that action is necessary to remove excess animals, [s]he shall immediately remove excess animals from the range so as to achieve appropriate management levels. Such action shall be taken . . . until all excess animals have been removed so as to restore a thriving natural ecological balance to the range, and protect the range from the deterioration associated with overpopulation.

Id. § 1333(b)(2).

In the event the Secretary undertakes to remove wild horses from the range, she must do

so through a prioritized list of methods prescribed by the WHA. First, she “shall order old, sick,

or lame animals to be destroyed in the most humane manner possible.” Id. § 1333(b)(2)(A).

Second, if overpopulation still exists, she must “cause such number of additional excess wild

free-roaming horses . . . to be humanely captured and removed for private maintenance and care

for which [s]he determines an adoption demand exists by qualified individuals, and for which

[s]he determines [s]he can assure humane treatment and care.” Id. § 1333(b)(2)(B). Finally, if

overpopulation persists, “the Secretary shall cause additional excess wild free-roaming horses

. . . for which an adoption demand by qualified individuals does not exist to be destroyed in the

most humane and cost efficient manner possible.” Id. § 1333(b)(2)(C).

Pursuant to BLM regulations, the Bureau manages herds of wild horses and burros

through “herd management areas” (“HMAs”). 43 C.F.R. § 4710.3-1. These HMAs are governed

by broader “land use plans” (“LUPs”) that set high-level goals for one or more HMAs.

Id. § 4710.1; Fund for Animals, Inc. v. BLM, 460 F.3d 13, 15 (D.C. Cir. 2006). The Bureau

implements LUPs through narrower activity plans called, in the case of wild horse management,

“herd management area plans” (“HMAPs”), which “establish short- and long-term management

and monitoring objectives for a specific . . . herd and its habitat.” Dkt. 46 at 279; see also 43

4 C.F.R. § 4710.3-1. “HMAPs also identify the actions to be taken to accomplish herd and habitat

management objectives.” Dkt. 46 at 279. The Bureau’s Wild Horses and Burros Management

Handbook (“WHA Handbook”) provides that the AML for each HMA “shall be expressed as a

population range within which” wild horses and burros “can be managed for the long term.” Id.

at 285. “The AML upper limit shall be established as the maximum number of” horses that

“results in a [thriving natural ecological balance] and avoids deterioration of the range,” and the

“lower limit shall normally be established at a number that allows the population to grow . . . to

the upper limit over a 4–5 year period, without any interim gathers to remove excess” wild

horses and burros, although “[s]ome HMAs may require more frequent removals to maintain

population size within AML.” Id. The handbook also distinguishes between an HMAP decision

setting the AML and a decision to gather and remove horses in order to “preserve or maintain a

thriving ecological balance and [to] maintain a multiple use relationship.” Id. at 313, 315. While

the former takes effect only after a 30-day appeal period expires, the latter takes effect, for

present purposes, “on a date specified in the decision,” which must be 31–76 days prior to the

proposed gather start date. Id. at 313, 315–16.

B. National Environmental Policy Act

A second statute, NEPA, also governs decisions to gather horses. NEPA requires federal

agencies to take a “hard look” at the environmental consequences before carrying out federal

actions. Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 373–74 (1989). The statute

accomplishes this by setting forth decision-making procedures that serve “twin aims”: “First,

[NEPA] ‘places upon an agency the obligation to consider every significant aspect of the

environmental impact of a proposed action;’ . . . Second, it ensures that the agency will inform

the public that it has indeed considered environmental concerns in its decision[-]making

5 process.” Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 97 (1983) (quoting

Vermont Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 553 (1978)).

For a “major [f]ederal action[] significantly affecting the quality of the human environment,”

NEPA requires the lead agency to prepare “a detailed statement” that describes the project’s

environmental impact and considers alternatives. 42 U.S.C. § 4332(2)(C).

To determine whether a proposed action will significantly affect the environment, the

governing regulations require agencies to prepare an environmental assessment (“EA”), a

“concise public document” that considers the action’s environmental impacts as well as

alternatives to the proposed action. 40 C.F.R. §§ 1508.9, 1501.4(b)(2).1 Regulations define an

EA as a “concise public document” used to determine whether the agency should prepare a more

comprehensive environmental impact statement (“EIS”) for projects likely to have a significant

environmental impact, 40 C.F.R. §§ 1508.9(a), 1508.11, or a “finding of no significant impact”

(“FONSI”), id. § 1508.13. Regulations also require the agency to “[m]ake diligent efforts to

involve the public in preparing and implementing their NEPA procedures.” Id. § 1506.6.

The Bureau’s WHA Handbook sets forth the relationship between NEPA and

management decisions that the BLM might make pursuant to the WHA. To create an HMAP,

the BLM must issue either an EA or EIS. Dkt. 46 at 305–09. Generally, before the Bureau

removes excess animals to achieve the AML, it must create a “[g]ather [p]lan[]” that includes a

“site-specific environmental analysis” that meets NEPA requirements. Id. at 316. There is,

however, an exception to this rule. “Before conducting a new NEPA analysis for a proposed

1 The Council on Environmental Quality updated the regulations implementing NEPA on July 16, 2020. See Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act, 85 Fed. Reg. 43,304 (July 16, 2020). In this opinion, citations to regulations reflect the earlier regulatory language in place at the time the Bureau made the 2018 decision challenged in this lawsuit. 6 [g]ather [p]lan,” the Bureau should review “existing NEPA documentation . . . to determine if it

is adequate.” Id. at 317. “Changes in numbers of [wild horses] since the previous gather that

result in changes in forage utilization, use patterns, and/or ecological conditions and trends, or

changing environmental conditions such as drought . . . may require that a new NEPA analysis

be conducted.” Id. “If the existing NEPA documentation appears to be adequate, . . . the

issuance of a [Determination of NEPA Adequacy (“DNA”)] may be appropriate.” Id.

According to the WHA Handbook, the “authorized officer will provide the public 30 days

to review and comment on the NEPA document,” including a DNA, “except when an emergency

situation exists.” Id. Then, the Bureau must issue a final gather decision including a “decision

record” summarizing and responding to substantive comments and setting “gather decisions

effective upon a date established in the decision.” Id. at 316–18.

C. Factual Background

1. 2018 Decision

The Onaqui Mountain HMA spans roughly 240,153 acres in Toole County, Utah,

sweeping upward from a 4,800-foot valley to peaks as high as 8,200 feet above sea level. Dkt.

46-2 at 287; Dkt. 62 at 18. It is a dry place with “limited surface water;” “[t]he majority of

springs and water sources that are present have been developed to provide water in troughs and

ponds for wild horses and livestock,” and most streams “are intermittent or ephemeral or only

flow a short distance downstream from a spring.” Dkt. 46-2 at 292. But grasses, sagebrush, and

other shrubs have managed to take root across much of the range. Id. at 290. Pursuant to Taylor

Grazing Act, 43 U.S.C. § 315 et seq., and the Federal Land Policy and Management Act, 43

U.S.C. § 1701 et seq., the BLM has issued grazing permits for sheep and cattle, Dkt. 46-2 at 300,

7 although the amount of livestock grazing has declined in 2021 “due to drought, with grazing

anticipated at only around 43 percent of permitted use.” Dkt. 64-10 at 6–7 (Gates Decl. ¶ 17).

In 1990, the BLM released a high-level planning document called, appropriately enough,

the Record of Decision for the Pony Express Resource Management Plan (“RMP”), which

establishes management policies for the HMA and sets the AML for wild horses at 45. Dkt. 46-2

at 460 et seq. In 2003, the BLM amended the HMA boundary and raised the AML to 121–210

horses. Id. at 529. The Bureau has not reevaluated the AML since that time, and it has not

issued an HMAP for the range. Dkt. 62 at 18–19.

On June 13, 2018, BLM released a draft EA estimating that 455 horses lived in the

Onaqui Mountain HMA and were contributing to changes in habitat, including degrading

vegetation. Dkt. 46-2 at 11, 31, 262. A 30-day comment period followed, and on December 14,

2018, the Bureau issued the final EA (“Onaqui EA”), a Record of Decision (“ROD”), and

FONSI. Id. at 262; Dkt. 62 at 19. None of these documents specified which category of decision

this was—an HMAP, a gather decision, or some other action. July 8, 2021 Hrg. Tr. (Rough at

42) (BLM acknowledging that it is not clear “which bucket . . . BLM would necessarily consider

this falls within”). The ROD, however, specified the actions that the authorizing officer, BLM’s

Salt Lake Field Manager, contemplated: “(1) Excess wild horses will be gathered inside and

adjacent to the HMA via trapping (water/bait) and helicopter methods” in order to reduce the

number of wild horses in the HMA “to the low end of AML”—or, in other words, approximately

121 horses; (2) “Fertility control vaccines” will be administered to “qualifying mares . . . to help

maintain . . . AML numbers;” (3) “The BLM would continue to conduct monitoring activities in

the HMA;” and (4) “After the initial gather, the target removal number would be adjusted

accordingly based off updated population inventories for the HMA and the resulting projection

8 of excess animals over AML.” Dkt. 46-2 at 261. As the ROD further explained, the approved

alternative “aim[ed] to achieve AML by removing approximately 465 wild horses [from a total

of 586 horses, the projected 2019 population size] inside and adjacent to the HMA in an initial

gather,” after which “the BLM would return periodically over a period of ten years to maintain

AML by removing excess wild horses and by administering [a] fertility control vaccine.” Id. at

260. And, as the EA further clarified, “[i]f gather efficiencies during the initial gather d[id] not

allow for the attainment of the proposed action (i.e., not enough horses [were] successfully

captured to reach low AML), the BLM would return to the HMA to remove excess horses above

AML (via trapping (bait/water) and/or helicopter methods).” Id. at 281. To the extent that BLM

collected more than the target number of horses in this initial gather, the Bureau would return the

horses to the range, treated with fertility control vaccines as appropriate. Id. But the decision

did not stop there. The BLM asserted that it would conduct “follow-up gathers, as frequently as

needed, . . . over a 10-year period to remove any additional wild horses necessary to maintain the

wild horse population at AML.” Id. at 282. Moreover, the Bureau would continue to dart horses

with fertility controls. Id.

Over the course of the ten-year period covered by the ROD and EA, the BLM promised

to adjust the target number for removals “based off updated population inventories for the HMA

and the resulting projection of excess animals over AML” and claimed that “[a]ll gathers

proposed . . . would . . . be informed by ongoing monitoring” and subject to “funding and

available space for the horses in adoption and/or sale programs or holding facilities.” Id. at 282.

In addition, the Bureau would “periodically conduct[]” genetic analyses on the herd “to monitor

its genetic diversity.” Id. And the BLM would also continue to monitor “individual and herd

health (including mares after fertility control vaccine treatments), genetic diversity . . .,

9 population size . . ., population growth rate assessments, and rangeland, wildlife habitat, and

riparian conditions.” Id. at 261; see also id. at 282.

2. Commencement of this Action

On August 29, 2018, FOA brought the instant action against the BLM, challenging the

2018 Onaqui decision, along with three other long-term decisions purporting to authorize gathers

and removals over a ten-year span. Dkt. 1. FOA brings this action on behalf of its members,

some of whom frequently visit the Onaqui Mountain HMA to study, photograph, or otherwise

enjoy the horses. Dkt. 62-1 (Downer Decl.); Dkt. 62-2 (Betten Decl.); Dkt. 62-3 (Stein Decl.);

Dkt. 62-4 (Trabue Decl.). These members assert an interest not only in the herd as a whole, the

viability of which they fear will suffer as a result of removal, but also in the welfare of individual

horses, who might be injured and euthanized during the gather or subsequently held in pens—

some never to be adopted and some “adopted” only to be sold for slaughter. Dkt. 62-1 at 4

(Downer Decl. ¶ 11); Dkt. 62-3 at 2 (Cramer Decl. ¶ 6). FOA alleges that in making long-term

removal decisions, the BLM violated the WHA by “failing to make an appropriate determination

that wild horses are excess and removal is necessary prior to authorizing the permanent removal

of horses over a ten-year” period of time (Count I), Dkt. 17 at 50 (2d Am. Compl. ¶¶ 352–54);

violated the APA by departing from agency guidelines without explanation (Count II), id. at 50–

51 (2d Am. Compl. ¶¶ 355–60); violated NEPA by failing to prepare an EIS (Count III), id. at 51

(2d Am. Compl. ¶¶ 361–64); and also violated NEPA by failing to take a “hard look” at the

actions that BLM proposed (Count IV), id. at 51–52 (2d Am. Compl. ¶¶ 365–68). For relief,

FOA asked the Court to declare that the BLM’s long-term roundup decisions violated the WHA

and APA; declare the RODs and FONSIs for the long-term roundup decisions unlawful under

NEPA and the APA; enjoin any action previously authorized by the BLM’s long-term roundup

10 decisions “unless and until the violations of federal law [alleged in the second amended

complaint] have been corrected;” and “[v]acate and remand back to [the] BLM the [l]ong-[t]erm

[r]oundup [d]ecisions.” Id. at 52 (2d Am. Compl. Request for Relief) (emphasis added).

In the meantime, the Bureau moved forward with its initial gather in the Onaqui

Mountain HMA. On August 30, 2019, the BLM released a press release announcing a goal to

“gather approximately 200 horses” from the Onaqui Mountain HMA over about nine days,

beginning on September 11, 2019. Dkt. 65-4 at 2 (Best Decl. Ex. 1). Between September 11 and

19, 2019, the BLM conducted an initial gather, removing 241 horses from the range. Dkt. 65-5

at 2–4 (Best Decl. Ex. 2). The bulk of these horses had body condition scores of 4–5, ranking

moderate or thin on the Henneke body condition scoring system (1 = poor and 9 = extremely

fat). Id.; Dkt. 64-10 at 3 (Gates Decl. ¶ 8). Between October 2019 and August 2020, the Bureau

removed an additional eighteen horses. Dkt. 64-10 at 2 (Gates Decl. ¶ 4). Following these

gathers, the wild horse population “remained more than twice the established AML,” Dkt. 64 at

13; Dkt. 64-10 at 2 (Gates Decl. ¶ 4), and the gathers were well below the BLM initial goal of

gathering approximately 465 wild horses to attain the low end of AML, before moving to the

maintenance phase of the Bureau’s plan, Dkt. 46-2 at 260–61.

FOA moved for summary judgment on December 5, 2019, Dkt. 37, and on January 10,

2020, the BLM cross-moved for summary judgment, Dkt. 39. After reviewing the parties’

briefs, the Court ordered that they file a joint status report addressing “(1) when the initial

gathers in each of the relevant HMAs commenced, (2) when each such initial gather was

completed or [was] likely to be completed, and (3) whether any of [FOA’s] challenges to the

initial . . . gathers [were] moot.” Minute Order (Nov. 3, 2020). After considering that

submission and hearing oral argument, the Court issued a memorandum opinion and order on

11 January 22, 2021, denying both motions for summary judgment. Friends of Animals v. BLM,

No. 18-cv-2029, 2021 WL 230139 (D.D.C. Jan. 22, 2021) (“FOA I”).

The Court began by considering the motions for summary judgment with respect to the

gathers conducted to date (including the September 2019 Onaqui Mountain HMA gathers). As

the Court explained, FOA had failed to carry its burden of demonstrating that the Court could

provide any meaningful relief with respect to those gathers. Id. at *6–7. But the Court also

declined to grant summary judgment to the BLM. If the Bureau knew the removed horses’

whereabouts, the Court reasoned, it might be able to grant relief by ordering that the BLM return

the horses to the range. Id. Thus, without further development of the factual record as to the

status of removed horses, the Court could not determine whether FOA’s claims were moot with

respect to the September 2019 Onaqui Mountain HMA and the other gathers that BLM had

already conducted.

As to future actions the BLM might take pursuant to its long-term decisions, in contrast,

the Court concluded that FOA’s challenges were not ripe for review. As the Court explained,

“the challenged [d]ecisions contemplate future, discrete agency actions—administering

contraceptives to horses or removing them through future gathers—over the course of ten years.”

Id. at *8. But the decisions set no timetable for these actions, offer only vague criteria for future

gathers, and condition any future gathers on funding, facility capacity, and Bureau priorities. Id.

at *8–9. In addition, the RODs and EAs committed the Bureau to conducting population

inventories and habitat monitoring prior to any follow-up gathers. Id. at *8.

The Court concluded that the matter was not fit for review in light of myriad remaining

uncertainties. Id. at *11. As the Court explained:

[A]lthough the Gather Decisions contemplate that future gathers may occur without a further environmental assessment and without public comment, that is

12 a decision that Bureau officials will have to make in the future—perhaps weeks from now or perhaps years from now. Significantly, counsel for the Bureau represented at oral argument that, “[t]o the extent conditions on the ranges change over time and require different management activities, there will be new NEPA” assessments.

Id. at *9. In stressing that “the strength of [FOA’s] argument[s] may turn on the passage of time

and intervening conditions,” the Court further observed:

A gather conducted next month that merely completes (or attempts to complete) the Bureau’s prior effort to achieve AML in the first instance poses different questions than a gather conducted years from now, after the Bureau has achieved AML and the herd size has re-grown to levels that strain the then-existing conditions on the range.

And questions of this sort apply with even greater force to FOA’s NEPA arguments. The length of time that passes between an agency’s conduct of a NEPA analysis and the contemplated action may bear on the adequacy of that analysis, particularly if conditions have changed in material respects. See Marsh, 490 U.S., 373–74.

Id. In short, the Court was “unpersuaded that it [should] reach the merits of FOA’s various

challenges without knowing when the further gathers will occur, whether conditions will have

changed by that time, and whether the Bureau [has decided] to conduct further environmental

analyses before acting.” Id. at *10.

Finally, having concluded that the dispute was not “fit” for resolution, the Court was

required to “‘balance the institutional interests in postponing review against the hardship to the

parties that will result from delay.’” Id. at *11 (quoting Consol. Rail Corp. v. Untied States, 896

F.2d 574, 577 (D.C. Cir. 1990)). Against this backdrop, the Court noted that, if FOA faced the

risk of future BLM action without notice, “it might well suffer undue prejudice if judicial review

were postponed.” Id. But, that risk was mitigated by the Bureau’s representation that it would

provide at least 30-days’ public notice “before future gather[s] occur[.]” Id. “With that

understanding, the Court conclude[d] that FOIA [could] avoid any hardship by seeking judicial

13 review before the action occurs,” id., and thus rejected the parties’ competing motions for

summary judgment on the grounds of prudential ripeness.

3. Motion for Preliminary Injunction

Had it rained more in Utah this past year, the present motion might not be before the

Court. Since late 2020, however, the Onaqui Mountain HMA has experienced “[e]xceptional

[d]rought [c]onditions.” Dkt. 64-10 at 3 (Gates Decl. ¶ 6). In a declaration prepared for this

litigation, the District Manager for BLM’s West Desert District, Michael Gates, details these

conditions. Id. at 2 (Gates Decl. ¶ 1). Instead of the typical 6.9 inches of precipitation that

normally falls between October and June in the area, the region has received less than half an

inch of rain, id., and virtually no vegetation has grown in 2021 “throughout the HMA[,] creating

a dire situation . . . for months to come regarding the foraging needs of the horses.” Id. (Gates

Decl. ¶¶ 6–7). Although horses on the Onaqui Mountain HMA have traditionally maintained

Henneke body condition scores of 5–6, Gates attests that in the summer of 2020, “horses were

observed to have lost 200–300 pounds and some were in body conditions 3–4” and that “[d]uring

the 2020–21 winter and early spring 2021[,] several horses were seen with a body condition of 2

(very thin).” Id. (Gates Decl. ¶ 8). Although “some horses observed in the winter as being thin

have put on some weight” this year, “as the forage dries out during the summer [Gates predicts

that] the horses will begin to decline again.” Id. at 3–4 (Gates Decl. ¶ 8). Gates further attests:

Based on the most recent observation (June 2021) by the BLM filed specialist, horses within the Onaqui HMA have an overall average body condition score of a 4, which coupled with the poor range condition and lack of forage, puts them at risk of a potentially rapid deterioration in body condition as the summer progresses. This will result in suffering and, for some individual animals, death. If the July gather does not proceed as planned, it is likely that BLM employees, in accordance with BLM Policy (Permanent Instruction Memorandum 2021- 007), will need to euthanize the animals as an act of mercy if the an animal is suffering from “Sickness, failing health, or an infirmity, disease, injury,

14 lameness, or serious physical condition or defect that has a poor prognosis for improvement or little chance of recovery.”

Id. at 4 (Gates Decl. ¶ 9).

“Based on the herd’s declining body condition, deterioration of the range[,] and ongoing

drought conditions, in early January 2021, BLM Utah requested approval to conduct a gather on

the Onaqui HMA during the summer of 2021.” Dkt. 64 at 15; see also Dkt. 64-10 at 4 (Gates

Decl. ¶ 11). This gather request (which BLM previously anticipated making for the summer of

2022) was sent to BLM Headquarters for funding, and, on February 19, 2021, BLM

Headquarters emailed BLM Utah to confirm that funding had been allocated for the gather. Dkt.

64-10 at 4–5 (Gates Decl. ¶ 11). On February 26, 2021, the BLM updated the gather schedule on

its website to reflect a plan to gather 400 horses from the Onaqui HMA, between July 12, 2010

[sic] and July 22, 2021. Id.; Dkt. 62-6 (Best Decl. Ex. 1). Of those 400 horses, the BLM plans

to remove 296 horses permanently from the range. Dkt. 62 at 20; Dkt. 62-6 (Best Decl. Ex. 1).

The BLM explains that 104 horses would likely be returned to the range after seven-to-ten days;

of those, BLM anticipates about half will be mares that it will treat with fertility control before

release. Dkt. 64 at 32–33; July 8, 2021 Hrg. Tr. (Rough at 80–81). The schedule described the

Bureau’s “[r]ationale” for the action as “AML/Outside HMA, water issues, forage issues.” Dkt.

62-6 (Best Decl. Ex. 1). Both parties agree that the Bureau has publicly issued no further NEPA

document—in the form of an EA, FONSI, or DNA—for the upcoming gather. See Dkt. 62 at 34;

Dkt. 64 at 28–29.

On March 1, 2021, counsel for the BLM emailed counsel for FOA, providing a link to the

updated gather schedule. Dkt. 64-4 at 2 (Smith Decl. Ex. 2). The email, however, was

apparently screened out by counsel for FOA’s email system and directed to a junk email folder,

so counsel for FOA did not see it for months. Dkt. 65 at 23. Instead, FOA’s counsel evidently

15 learned about the planned gather from the online schedule on or about June 1, 2021 and promptly

emailed counsel for the Bureau to inquire whether the website’s schedule was correct. Dkt. 62-9

at 1 (Best Decl. Ex. 4). On June 7, 2021, counsel for the BLM responded that the schedule was

accurate, except for the fact that the gather was scheduled to commence on July 11, 2021. Id. at

3 (Best Decl. Ex. 4). Counsel explained that “the drought conditions in the west are primarily

. . . motivating the need to gather after watching body conditions drop last summer (200–300

pounds on individual horses).” Id. Although FOA’s counsel belatedly learned of this planned

gather, there is no dispute that FOA was are of the BLM’s plan. FOA’s president, for instance,

tweeted a message criticizing the gather on March 1, 2021. Dkt. 64-3 at 2 (Smith Decl. Ex. 1).

FOA moved for a preliminary injunction on June 14, 2021, Dkt. 62; the BLM filed its

opposition on June 24, 2021, Dkt. 64; and FOA filed its reply on July 1, 2021, Dkt. 65. The

Court heard oral argument on July 8, 2021. That same day, the BLM filed a “notice in response

to the Court’s inquiry as to whether [the] BLM [could] reasonably postpone the planned July 11,

2021 gather” in which the agency committed that it will “not commence gather operations before

July 13, 2021.” Dkt. 66 at 1. The notice also clarified that the BLM has not filed, and does not

intend to file, an administrative record relating to events occurring since FOA filed its second

amended complaint in February 2019 because “the only decision fairly encompassed by [the

operative] Complaint is the 2018 Onaqui Mountain Herd Management Area Population Control

Decision Record and accompanying environmental assessment.” Id. at 1–2.

On July 9, 2021, FOA filed a responsive notice, asserting that the BLM’s failure to

“provide a formal administrative record means there is no new evidence to support a finding that

[the] BLM’s determination to remove wild horses in July 2021 was based on ‘currently available

information[,]’ 16 U.S.C. § 1331,” Dkt. 67 at 2. Essentially agreeing with the BLM about the

16 scope of the pending case, FOA’s notice also clarified that the group is not challenging a new

administrative action but, as the BLM observed, is challenging the 2018 NEPA analysis on the

ground that it is insufficient—as a matter of law and fact—to support a series of gathers over a

period of ten years. Id. But, to the extent evolving facts are at issue, FOA also “vigorously

dispute[d] the . . . statement made by BLM official Gus Warr at the conclusion of the hearing,”

and submitted further declarations in support of its motion.2 Id. at 2–3.

II. LEGAL STANDARD

To prevail on a motion for a preliminary injunction, the moving party must show (1)

“‘that [it] is likely to succeed on the merits,’” (2) “‘that [it] is likely to suffer irreparable harm in

the absence of preliminary relief,’” (3) “‘that the balance of equities tips in [its] favor,’” and (4)

“‘that an injunction is in the public interest.’” Glossip v. Gross, 576 U.S. 863, 876 (2015)

(quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). For many years, the D.C.

Circuit evaluated these factors on a “sliding scale.” See, e.g., Davenport v. Int’l Bhd. of

Teamsters, AFL-CIO, 166 F.3d 356, 360–61 (D.C. Cir. 1999). It has read the Supreme Court’s

decision in Winter v. Natural Resources Defense Council, Inc., 555 U.S. at 20–24, however, “at

least to suggest if not to hold” that plaintiffs face “a more demanding burden” under which “a

likelihood of success is an independent, freestanding requirement for a preliminary injunction,”

Sherley v. Sebelius, 644 F.3d 388, 392–93 (D.C. Cir. 2011) (internal quotation marks omitted).

This issue remains the subject of some uncertainty in this circuit. See Archdiocese of Wash. v.

Wash. Metro. Area Transit Auth., 897 F.3d 314, 334 (D.C. Cir. 2018) (“[T]his court has not yet

decided whether Winter v. Natural Resources Defense Council . . . is properly read to suggest a

2 At the direction of the Court, on July 12, 2021, the BLM filed copies of BLM Utah’s 2021 gather request and the BLM Headquarters’ response to that letter. Dkt. 68. FOA filed a response the same day. Dkt. 69. 17 sliding scale approach to weighing the four factors be abandoned.” (internal quotation marks

omitted)); Am. Meat Inst. v. USDA, 746 F.3d 1065, 1074 (D.C. Cir. 2014), reinstated in relevant

part by 760 F.3d 18 (D.C. Cir. 2014) (en banc) (“This circuit has repeatedly declined to take

sides in a circuit split on the question of whether likelihood of success on the merits is a

freestanding threshold requirement to issuance of a preliminary injunction.”). But,

notwithstanding this uncertainty, it is clear that the plaintiff’s likelihood of success on the merits

is a “key issue [and] often the dispositive one” at the preliminary injunction stage, Greater New

Orleans Fair Hous. Action Ctr. v. U.S. Dep’t of Hous. & Urb. Dev., 639 F.3d 1078, 1083 (D.C.

Cir. 2011), and that, even if the sliding-scale approach survived Winter, “a plaintiff with a weak

showing on the” likelihood-of-success factor “would have to show that all three of the other

factors so much favor the [movant] that [it] need only have raised a serious legal question on the

merits.” Am. Meat Inst., 746 F.3d at 1074 (internal quotation marks omitted).

II. ANALYSIS

A. Likelihood of Success on the Merits

The Court begins with FOA’s likelihood of success on the merits. “Because neither

NEPA nor the [WHA] contain[s] an internal standard of judicial review, the [APA] governs this

[C]ourt’s review of the BLM’s actions.” In Def. of Animals, Dreamcatcher Wild Horse & Burro

Sanctuary v. U.S. Dep’t of Interior, 751 F.3d 1054, 1061 (9th Cir. 2014). The APA requires

courts to set aside an agency action if it is “arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.” Id. § 706(2)(A). Agency actions “in excess of statutory

jurisdiction, authority, or limitations,” likewise, must be set aside. Id. § 706(2)(C). “The scope

of review under the ‘arbitrary and capricious’ standard is narrow[,] and a court is not to

substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State

18 Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). “That said, the Court must satisfy itself that

the agency ‘examine[d] the relevant data and articulate[d] a satisfactory explanation for its action

including a rational connection between the facts found and the choice made.’” Amgen Inc. v.

Azar, 290 F. Supp. 3d 65, 70 (D.D.C. 2018) (alteration in original) (quoting State Farm, 463 U.S.

at 43).

The first question the Court faces is whether anything has changed since it denied the

parties’ competing motions for summary judgment in January, and, in particular, whether the

present dispute is ripe for decision. In one sense, the answer to that question seems

straightforward. The Court previously concluded that the dispute was not fit for resolution

because the length of time that might pass from finalization of the EA to the relevant agency

action, and any intervening changes in conditions on the range, would likely affect the Court’s

assessment of the merits of the parties’ dispute. FOA I, 2021 WL 230139, at *9. Indeed, the

Court even cautioned the BLM that, if it failed to provide FOA with significant notice of its plan

to launch a future gather, FOA might be forced to seek “preliminary relief,” posing a burden on

the Bureau to litigate the question at issue on a compressed timetable. Id. at *11. In short, the

current circumstances appear—at least at first glance—to be just what the Court indicated might

be required to permit judicial resolution of the dispute.

The one complication—and it is a serious one—is that FOA has not challenged the

current gather decision as a discrete agency action but, rather, continues to focus on the BLM’s

December 2018 ROD and EA. Unsurprisingly, the BLM responds that it has no obligation to

supplement the administrative record with materials reflecting agency deliberations and actions

taken since FOA filed its second amended complaint in 2019. Dkt. 66 at 1–2. As the BLM

explains, “the only decision fairly encompassed by [FOA]’s [Second] Amended Complaint is the

19 2018 Onaqui Mountain Herd Management Area Population Control Decision Record and

accompanying environmental assessment,” and “[t]o the extent that Plaintiff now asserts that

conditions have changed such that additional NEPA analysis is necessary, that claim is not

before the Court.” Id. FOA, for its part, doubles down on this same point, arguing that “all

statements that post-date the 2018 Decision . . . are not part of any formal administrative record

[and] cannot be considered by the Court in evaluating the merits of Friends of Animals’ claims.”

Dkt. 67 at 1. FOA also agrees with the BLM, moreover, that the question before the Court is the

adequacy of “the existing 2018 NEPA analysis” and that the Court may not consider any “new

evidence” in evaluating that claim. Id. at 2.

In short, the parties appear to agree that the administrative record is precisely the same

record that the Court previously considered when it concluded that FOA’s challenge was not

“fit” for judicial resolution because the record did not reflect when and under what circumstances

the BLM might undertake further gathers or to “complete (or attempt[] to complete) [its] prior

effort to achieve AML.” FOA I, 2021 WL 230139, at * 9. Nor is the Court free to consider the

parties’ competing submissions regarding current conditions (or their predictions regarding

future conditions) on the Onaqui Mountain HMA in assessing FOA’s likelihood of success on

the merits on its APA claims. To the contrary, “the Supreme Court in Overton Park held that

even sworn affidavits filed during the litigation would not suffice to explain the action of the

Secretary of Transportation,” and, likewise, in “assessing [FOA’s] probability of success on the

merits,” the Court must rely on the existing administrative record. Am. Bioscience, Inc. v.

Thompson, 243 F.3d 579, 582 (D.C. Cir. 2001). To be sure, the Court can consider new

evidence—including the risk that the drought poses to the wild horses—in considering the other

three prongs of the test for issuance of a preliminary injunction. But with respect to the

20 likelihood of success on the merits, the Court may not—absent unusual circumstances of a type

that neither party argues are present here—depart from the administrative record as it existed

when the Court issued its prior decision earlier this year. And, unless and until FOA seeks to

amend or to supplement its second amended complaint, the Court may consider only the claims

raised in that pleading, which do not include challenges to any decision or action taken since

December 2018.

Because application of these limitations may vary from claim to claim, the Court will

consider how the limited scope of the administrative record and FOA’s asserted claims affects its

likelihood of success on the merits with respect to each argument raised in its motion for a

preliminary injunction.

1. 2018 Decision’s Compliance with the WHA

FOA first renews its contention that the WHA does not permit the Bureau to make long-

term gather decisions, like the ten-year plan set forth in the 2018 Onaqui Mountain HMA ROD

and EA. FOA argues, in particular, that the WHA permits the Bureau to remove wild horses

only “based on current information” and that, as a result, the “BLM’s decision [may] only

appl[y] to a specific population at a specific time.” Dkt. 62 at 24. That conclusion is reinforced,

according to FOA, by the WHA’s requirements that the BLM “immediately” remove excess wild

horses and that it consult with “qualified scientists” and others when deciding “whether and

where an overpopulation exists and whether action should be taken to remove excess animals,”

16 U.S.C. § 1333(b)(1). See Dkt. 62 at 24–25.

In assessing FOA’s likelihood of success on the merits with respect to this argument, the

Court starts, as it must, with the text of the statute. See BP America Prod. Co. v. Burton, 549

U.S. 84, 91 (2006); see also Sebelius v. Cloer, 569 U.S. 369, 376 (2013) (quoting same). Here,

21 the WHA confers broad discretion on the Secretary (and thus the BLM) “to protect and manage

wild free-roaming horses and burros as components of the public lands . . . in a manner that is

designed to achieve and maintain a thriving natural ecological balance on the public land.” 16

U.S.C. § 1333(a). That discretion, however, is cabined by several requirements. First, “[a]ll

management activities shall be at the minimal feasible level.” Id. Second, “[t]he Secretary

[must] maintain a current inventory of wild free-roaming horses and burros on given areas of the

public lands.” Id. at § 1333(b)(1) (emphasis added). As the WHA further explains:

The purpose of such inventory shall be to: make determinations as to whether and where an overpopulation exists and whether action should be taken to remove excess animals; determine appropriate management levels of wild free- roaming horses and burros on these areas of the public lands; and determine whether appropriate management levels should be achieved by the removal or destruction of excess animals, or other options (such as sterilization, or natural controls on population levels). In making such determinations the Secretary shall consult with the United States Fish and Wildlife Service, wildlife agencies of the State or States wherein wild free-roaming horses and burros are located, such individuals independent of Federal and State government as have been recommended by the National Academy of Sciences, and such other individuals whom he determines have scientific expertise and special knowledge of wild horse and burro protection, wildlife management and animal husbandry as related to rangeland management.

Id. If on the basis of this information, as well as “information contained in any land use planning

completed pursuant to” the Federal Land Policy and Management Act, 43 U.S.C. § 1712,

“information contained in court ordered environmental impact statements,” and “such additional

information as becomes available to h[er] from time to time . . . or in the absence of [this]

information[,] all information currently available to [her],” the Secretary determines “that an

overpopulation exits . . . and that action is necessary to remove excess animals, [s]he shall

immediately remove excess animals from the range so as to achieve appropriate management

levels.” Id. at § 1333(b)(2) (emphasis added).

22 In taking “such action,” however, the Secretary must act “in the following order and

priority . . . until all excess animals have been removed so as to restore a thriving natural

ecological balance to the range, and protect the range from the deterioration associated with

overpopulation.” Id. (emphasis added). First, “[t]he Secretary shall order old, sick, or lame

animals to be destroyed in the most humane manner possible.” Id. § 1333(b)(2)(A). Second,

“[t]he Secretary shall cause such number of additional excess wild free-roaming horses and

burros to be humanely captured and removed for private maintenance and care for which he

determines an adoption demand exists by qualified individuals, and for which he determines he

can assure humane treatment and care.” Id. § 1333 (b)(2)(B). Third, “[t]he Secretary shall cause

additional excess wild free-roaming horses and burros for which an adoption demand by

qualified individuals does not exist to be destroyed in the most humane and cost efficient manner

possible.” Id. § 1333(b)(2)(C).

In opposing FOA’s challenge, the Bureau does not invoke Chevron deference, and,

accordingly, the Court will consider the merits of FOA’s statutory argument without applying

Chevron’s two-step framework. But even so, FOA has failed to carry its burden of

demonstrating that it is likely to succeed on the merits with respect to this claim. To start,

although the WHA establishes that removal decisions should be based on “current” information,

nothing in the statute requires a separate determination prior to each individual round-up made

pursuant to a gather plan. See Friends of Animals v. Silvey, 353 F. Supp. 3d 991, 1006–07 (D.

Nev. 2018); aff’d 820 Fed. App’x 513 (9th Cir. 2020). To be sure, the Secretary must “maintain

a current inventory of wild free-roaming horses” and must decide whether “an overpopulation

exists” and whether “action is necessary to remove excess animals” based on “all information

currently available to him.” 16 U.S.C. § 1333(b)(1) & (2) (emphasis added). But that is, at least

23 in theory, what the Secretary did when he decided in December 2018 to gather excess wild

horses in the HMA and to reduce the number of wild horses in an initial gather “to the low end of

AML,” Dkt. 64-6 at 5, or approximately 121 wild horses. Thus, viewing the December 2018

ROD standing alone, FOA’s argument carries little force.

FOA’s argument, however, posits that the December 2018 ROD cannot be viewed in

isolation because it authorized the BLM to continue its efforts to achieve the low end of AML,

and then to maintain AML over a period of ten years, and one cannot plausibly maintain that a

roundup undertaken ten years down the road is based on “current” information. FOA’s argument

might—or might not—prove correct depending on how much time passes and on whether

conditions change in relevant respects. The Court, however, is unpersuaded for present

purposes.

By focusing its challenge on the December 2018 ROD and EA—and eschewing efforts to

supplement the record based on recent developments—FOA has elected to pursue what is, in

essence, a facial challenge to the 2018 actions. Because the administrative record is thus fixed as

of December 2018, the Court can evaluate FOA’s argument only in light of the record that

existed at that time. Viewed through that lens, the Court must conclude either, as it did before,

that the challenge is not “fit” for judicial review, see FOA I, 2021 WL 23019, at *9, or that it is

unsupported by record evidence that the Bureau’s “current inventory” or “information” has

grown stale. If asked in the abstract whether anything in the WHA categorically precludes the

Bureau from issuing a gather decision that contemplates a series of roundups over a period of

years to achieve AML, the Court is unable to accept FOA’s argument. And, if asked whether

anything about the specific facts and conditions present here compels a different result, the Court

24 is not permitted (as both the BLM and FOA stress) to consider the extra-record evidence that

might—or might not—support that claim.

Moreover, even if the Court were to consider the amount of time that has passed since the

December 2018 ROD, FOA has not shown that it is likely to prevail on its claim that such delay

is categorically barred by the WHA. Because only about 30 months have passed since the

Bureau issued its December 2018 ROD and because the Bureau has yet to achieve its “initial”

goal of reducing the herd size to the low end of AML, the upcoming gather is reasonably viewed

as a continuation of the Bureau’s initial gather, which was supported by current excess and

necessity determinations. See FOA I, 2021 WL 230139 at *9 (“A gather conducted next month

that merely completes (or attempts to complete) the Bureau’s prior effort to achieve AML in the

first instance poses different questions than a gather conducted years from now, after the Bureau

has achieved AML and the herd size has re-grown to levels that strain the then-existing

conditions on the range.”).

Similarly, FOA has failed to demonstrate that it is likely to prevail on the merits of its

contention that long-term gather plans are precluded by the statutory command that the Secretary

act “immediately” after making a finding that it “is necessary to remove excess animals.” 16

U.S.C. § 1333(b)(2). Read in context, that direction requires the Secretary to begin the process

of removing animals promptly. But the very next sentence of the statute recognized that the

process may proceed in stages “until” the goal of restoring “a thriving natural ecological balance

to the range” is achieved. Id. Indeed, reading the statute to require the Secretary to act “without

any intervening delay . . . would contravene the ultimate purposes of the WHA by forcing [the]

BLM to act recklessly and without regard for the continuing viability or humane treatment of

creatures it is specifically tasked with preserving.” W. Rangeland Conservation Ass’n v. Zinke,

25 265 F. Supp. 3d 1267, 1284 (D. Utah 2017). Nor is there any reason to conclude that Congress

required that the Secretary act “immediately” to ensure that the information that he relied upon

was as current as possible. Rather, as the D.C. Circuit has explained, the 1978 amendments to

the WHA—which introduced that language upon which FOA relies—was adopted “to cut back

on the protection the [WHA] affords wild horses, and to reemphasize other uses of the natural

resources wild horses consume.” Am. Horse Prot. Ass’n, Inc. v. Watt, 694 F.2d 1310, 1316

(D.C. Cir. 1982).

To be sure, the statute requires the immediate removal of “excess animals . . . so as to

achieve” AML. But requiring immediate action so as to achieve something is not the same thing

as immediately achieving that goal. One might immediately stop eating dessert “so as to

achieve” a five-pound loss of weight. But that does not mean that the moratorium on desserts

begins and ends on day one. The same is true here. The statute requires the BLM to remove

wild horses promptly after deciding that “an overpopulation exists,” but that does not mean that

the BLM’s efforts must come to an end immediately—or shortly after “immediately.” Rather,

the WHA merely requires that the BLM make progress toward the AML through the removal of

horses “immediately,” and the BLM’s September 2019 gather, which commenced less than a

year after the 2018 decision, likely falls within the “discretionary space” the statute affords to the

Bureau to act “immediately.” W. Rangeland Conservation Ass’n, 265 F. Supp. 3d at 1284.

The Court does not doubt that there is some limit on how long a single gather

determination may meaningfully apply. The problem FOA faces in this case, however, is that it

has merely challenged the December 2018 ROD and EA, and it has not amended or

supplemented its complaint to challenge the current plan. As a result, the administrative record

is limited to the BLM’s December 2018 actions, and the Court cannot conclude that FOA is

26 likely to prevail in showing that it was unreasonable or contrary to law for the BLM in December

2018 to authorize a series of gathers over a period of approximately 30 months.

2. 2018 Decision’s Compliance with NEPA

Next, FOA contends that the BLM has run afoul of NEPA “by failing to provide any

NEPA analysis of the proposed 2021 roundup.” Dkt. 62 at 33.3 The 2018 decision, according to

FOA, “completely failed to consider events after the 2018 [d]ecision and the current condition of

the range and wild horses” in 2021. Id. at 34. Nor did the BLM release a DNA explaining why

its previous NEPA analysis was adequate. Id. This is “crucial,” according to FOA, because the

2018 decision “failed to consider the cumulative impact of rounding up 400 wild horses” in

2021, id. at 35, and failed to consider genetic effects adequately, because the most recent genetic

analysis of the Onaqui herd, dated to 2005, found the herd to have critically low genetic

variability, id. at 36. The Bureau responds that an EA (such as the 2018 EA) can support

multiple gathers, Dkt. 64 at 27; that the December 2018 EA clearly contemplated and planned

for future gathers such as the 2021 roundup, id. at 28–29; that the BLM has continued

monitoring the range since 2018, id. at 28; and, finally, that the 2018 EA adequately considered

genetic diversity, id. at 29–31.

The D.C. Circuit addressed a similar situation in Mayo v. Reynolds, 875 F.3d 11 (D.C.

Cir. 2017). In that case, the Park Service and Fish and Wildlife Service adopted a fifteen-year

plan in 2007 to manage an elk herd in Grand Teton and prepared an EIS to assess the plan’s

environmental impacts. Id. at 17. The plan called for reducing the herd by thousands of animals

over fifteen years through an “adaptive management approach . . . based on established criteria

3 At oral argument, FOA explained that it uses “roundup” interchangeably with “gather.” July 8, 2021 Hrg. Tr. (Rough at 32–33). For present purposes, the Court will follow that lead. 27 and changing social, political, or biological conditions.” Id. (internal quotation marks omitted).

The plan assumed that hunting would be authorized and that “over the long term an estimated

average of 232–287 elk per year would be harvested by . . . deputized hunters.” Id. at 18

(internal quotation marks omitted). In 2014, wildlife photographer Timothy Mayo sued the Park

Service to challenge its annual hunting authorization, alleging that “each annual hunting

authorization constitute[d] a ‘major [f]ederal action’ that trigger[ed] NEPA’s mandate that the

agency prepare an EA or EIS.” Id. at 18, 20. He argued that: (1) “the 2007 [p]lan did not

disclose the particulars of each future annual hunt; (2) the agencies ha[d] stopped implementing

the [p]lan; and (3) significant new information bearing on the environmental effects of hunting

had never been analyzed.” Id. at 20. The Park Service, in turn, argued that the annual hunting

authorization was merely an implementation step of the fifteen-year plan and that “the 2007 EIS

relieved the Park Service of the obligation to prepare fresh NEPA documentation each year it

implements the elk-reduction program in conformity with” that plan. Id.

The D.C. Circuit first observed that once an agency takes a “hard look” at every

significant aspect of environmental impacts associated with a proposed major federal action, “it

is not required to repeat its analysis simply because the agency makes subsequent discretionary

choices in implementing the program.” Id. at 20–21; see also Balt. Gas & Elec. Co., 462 U.S. at

97. Because “an agency is not required to make a new assessment under NEPA every time it

takes a step that implements a previously studied action,” an agency need not supplement an

original NEPA document, “[s]o long as the impacts of the steps that the agency takes were

contemplated and analyzed by the earlier NEPA analysis.” Mayo, 875 F.3d at 21 (first citing

Marsh, 490 U.S. at 373, then citing Nat’l Comm. for the New River, Inc. v. FERC, 373 F.3d

1323, 1330 (D.C. Cir. 2004)). The court considered whether the EIS prepared for the 2007 plan

28 demonstrated that the Park Service had taken a “hard look” at the long-term effects of its

program, and it concluded that the EIS had done so. Id. at 21–22.

The Mayo court then considered whether, notwithstanding the sufficiency of the initial

EIS, the Park Service was obligated to supplement its EIS with any further NEPA analysis. As

the D.C. Circuit explained, “NEPA does not prevent an agency from satisfying future NEPA

obligations by performing a NEPA analysis at the outset of a long-term project.” Id. at 22.

To be sure, agencies are not always free to comply with NEPA by issuing a single EIS at the outset of a long-term project. An environmental analysis that occurs too early in the planning process may lack “meaningful information” necessary for informed consideration. . . . Thus, if a program “involves . . . separate sub-projects and will take many years,” NEPA’s implementing regulations allow the agency to “evaluate[] each sub-part as it becomes ready” and tailor its subsequent analyses to particularized considerations not already addressed in a prior “programmatic EIS.”

Id. at 22–23 (citations omitted). Courts must apply a “rule of reason” when evaluating agency

decisions not to supplement a NEPA document and should defer to the agency’s “informed

discretion.” Id. at 16 (internal quotation marks omitted); see also id. at 23. Applying this

principle, the Mayo court concluded that the record revealed no effects on the elk population

outside those considered by the 2007 EIS and that, accordingly, no supplement was required to

support the challenged annual hunting authorization. Id. at 23–24.

The approach set forth in Mayo has two distinct steps. First, the Court must consider

whether the agency took a “hard look” at long-term environmental consequences in its initial EIS

or EA. Id. at 20–21. Second, the Court must consider whether any actual consequences of the

subsequent, implementing action were not adequately “contemplated and analyzed by the earlier

NEAP analysis.” Id. at 21. In resolving the pending motion, the Court can undertake the first of

these tasks, which turns on the administrative record as it existed in December 2018, but cannot

29 resolve the second question because FOA has not filed a separate challenge to any current or

impending action and the administrative record is limited to what occurred in 2018.

FOA is correct that the December 2018 EA “has no analysis of” the exact gather

contemplated—that is, a July 2021 roundup of 400 horses, removing 296 animals and applying

contraceptives to 52 others. Dkt. 62 at 34. But Mayo holds that an agency need not analyze the

effects of each specific implementation step to satisfy the dictates of NEPA. 875 F.3d at 21

(“[A]n agency is not required to make a new assessment under NEPA every time it takes a step

that implements a previously studied action.” ). Here, the 2018 EA contemplated that “in order

to achieve low AML of 121 wild horses[,] . . . approximately 465 wild horses would be gathered

and placed in the adoption and/or sale program.” Dkt. 46-2 at 281. The BLM further observed

that “efficiencies during the initial gather [might] not allow for the attainment of the proposed

action (i.e., not enough horses [would be] successfully captured to reach low AML)” and that, in

such a case, “the BLM would return to the HMA to remove excess horses above AML.” Id. The

impending gather falls squarely within that action anticipated by the December 2018 EA.

Although about one-third the length of the EIS at issue in Mayo, the December 2018 EA

assessed many of the same topics analyzed in the Mayo EIS. The EA considered how the

“reduction program would likely affect the . . . overall size of the [Onaqui] herd,” Mayo, 875

F.3d at 21; see, e.g., 46-2 at 281–82; “the density of the herd and distribution of the” horses,

Mayo, 875 F.3d at 21; see, e.g., Dkt. 46-2 at 303–04; and the “[foaling], age, and sex ratios of

the” herd, Mayo, 875 F.3d at 21; see, e.g., Dkt. 46-2 at 303–05. As in Mayo, the December 2018

EA “considered the [horse]-reduction program’s relation to the region’s human environment,”

Mayo, 875 F.3d at 21; Dkt. 46-2 at 310, and the “likely consequences on other wildlife,” Mayo,

875 F.3d at 21; Dkt. 46-2 at 313–17. Although the EA did not break each of these considerations

30 out by year, it did explain that, “[w]ith the exception of changes to herd demographics,” which

the BLM aimed to keep “negligible” through “scientifically informed” removal decisions, “direct

population wide impacts have proven, over the last 20 years, to be temporary in nature with most

if not all impacts disappearing within hours to several days of when wild horses are released

back into the HMA.” Dkt. 46-2 at 303–04. “No observable effects associated with these impacts

would be expected within one month of release, except for a heightened awareness of human

presence.” Id. at 304. This lone longer-lasting effect does not distinguish the present case from

Mayo, where the EIS “explained how hunting might affect the elks’ social practices, potentially

increasing the elks’ nervousness.” 875 F.3d at 21 (internal quotation marks omitted). In sum,

for the same reasons the D.C. Circuit found the NEPA analysis sufficient in Mayo under a rule of

reason, the Court is unpersuaded that FOA is likely to succeed on the merits of its challenge to

the adequacy of the December 2018 EA’s “hard look” at the long-term consequences of the

contemplated gathers.

The one notable difference between this case and Mayo is that in Mayo, the agency

produced an EIS instead of an EA. In its motion for summary judgment, FOA argued that the

EA failed to consider “numerous significance factors that indicate an EIS is required.” Dkt. 37 at

41.4 A single EA cannot support the long-term 2018 decision, the argument runs, because

4 FOA purports to incorporate all of its summary judgment arguments by reference into its motion for a preliminary injunction, Dkt. 62 at 2, and the BLM purports to incorporate all of its previous defenses in its opposition, Dkt. 64 at 21. This Court’s Local Rules, however, bar a motion or opposition from exceeding 45 pages “without prior approval of the Court.” D.C. L.Cv.R. 7(e). As the D.C. Circuit has observed in a slightly different context, “ordinarily” a party may not incorporate arguments by reference because it provides a way to “evade word limits.” Al-Tamimi v. Adelson, 916 F.3d 1, 6 (D.C. Cir. 2019). Here, neither party sought permission to exceed the page limit, yet each side’s briefs would surpass 80 pages by incorporation. Argument by incorporation is especially inappropriate in the present context, moreover, because FOA bears the burden of demonstrating that it is likely to succeed on the merits, and it has signaled which arguments it believes are most persuasive by including them in 31 environmental conditions might change, including alterations such as “droughts, wildfires, and

other climate related changes; changes in grazing management; oil and gas development; mining;

new roads; new fencing; and changes in available forage.” Dkt. 37 at 41. BLM’s FONSI

allegedly “failed to address how these uncertainties might impact the need to revise the

applicable AMLs of the effected herds, or, combined with the authorized roundups, could

potentially impact the stability and viability of the individual wild horse populations.” Id. The

same goes for the long-term use of fertility control measures, including the administration of

contraceptives, which FOA contends could work unknown harms “on the health and

sustainability of wild horse populations,” including “permanent infertility.” Id. at 41–42.

When reviewing NEPA challenges, the Court’s task “is not to ‘flyspeck’” the Bureau’s

“environmental analysis for ‘any deficiency no matter how minor.’” Sierra Club v. FERC, 827

F.3d 36, 46 (D.C. Cir. 2016) (quoting Theodore Roosevelt Conservation P’ship v. Salazar, 661

F.3d 66, 75 (D.C. Cir. 2011)). Instead, the Court’s job is “simply to ensure that the agency has

adequately considered and disclosed the environmental impact of its actions and that its decision

is not arbitrary and capricious.” Id. (quoting Balt. Gas & Elec. Co., 462 U.S. at 97– 98). This

does not mean that “[j]udicial review of an agency’s [FONSI] is . . . merely perfunctory;” rather,

“the [C]ourt must [e]nsure that the agency took a hard look at the environmental consequences of

its decision.” Sierra Club v. Peterson, 717 F.2d 1409, 1413 (D.C. Cir. 1983) (internal quotation

its memorandum in support of its motion for preliminary injunction, and because the time pressure posed by a motion for a preliminary injunction does not afford the Court the luxury of perusing FOA’s prior filings to see if an argument that FOA has declined to feature in its pending motion might offer greater promise. Because FOA’s efforts to distinguish Mayo turn on the difference between an EA and EIS, however, the Court will briefly touch on the parties’ arguments regarding the sufficiency of the EA.

32 marks omitted). When evaluating whether an agency discharged its duty by issuing an EA and a

FONSI, the D.C. Circuit considers whether the agency’s NEPA analysis:

(1) identif[ies] accurately the relevant environmental concerns, (2) take[s] a hard look at the problem in preparing its Environmental Assessment, (3) ma[kes] a convincing case for any finding of no significant impact, and (4) show[s] why, if there is an impact of true significance, there are sufficient changes or safeguards in the project to reduce the impact to a minimum, which would obviate the need for an Environmental Impact Statement entirely.

Am. Rivers v. FERC, 895 F.3d 32, 49 (D.C. Cir. 2018); see also Peterson, 717 F.2d at 1413.

FOA has failed to carry its burden of showing that the Court is likely to conclude that the

December 2018 EA neglected a “relevant environmental concern[].” Am. Rivers, 895 F.3d at 49.

As explained above, although the BLM proceeded by EA rather than EIS, it considered the same

factors that the Mayo court held were sufficient to satisfy NEPA. The EA also considered

genetic diversity and the anticipated effects of population control on “long-term population

growth.” Dkt. 46-2 at 308–09. The most recent genetic study of the Onaqui HMA herd occurred

in 2005 and revealed low heterozygosity in the herd. Id. at 308. Although this study was

arguably outdated in 2018, the Court concludes that the genetics analysis was nevertheless

sufficient for two reasons. First, the BLM manages the Onaqui herd as part of a larger meta-

population of wild horses across HMAs. Id. Therefore, even if the genetic diversity of one herd,

like the Onaqui herd, is low, it can be bolstered with influx from other herds. That raises the

second point: the same 2005 study that found low heterozygosity in the Onaqui herd

recommended that “2 or 3 mares from any other herd” be added to bolster the Onaqui

population’s genetic diversity. Id. The Bureau not only did this, it went well beyond, and

introduced eighteen mares and six stallions to the Onaqui Mountain HMA between 2005 and

2018. Id. “Therefore . . . the expectation is that by now the Onaqui herd has a much higher level

of heterozygosity, and still has high levels of allelic diversity.” Id. Although FOA is surely

33 correct that a more recent genetic assessment would have strengthened the 2018 EA’s analysis,

BLM’s judgment as to the genetic health of the population implicates its expert judgment. And

given that the December 2018 EA was drafted with the goal of reducing the population to 121

animals in 2019, FOA offers no reason to believe that taking longer to do so, and instead

reaching that goal in 2021, would have a greater effect on the herd’s genetics.

As already discussed, the Court is unpersuaded that NEPA requires consideration of

every possible implementation action or the particulars of each gather to satisfy the “hard look”

requirement. Am. Rivers, 895 F.3d at 49. To be sure, FOA might someday show that the

December 2018 EA failed to contemplate and analyze significant environmental effects posed by

a subsequent gather decision. But that question goes to the second prong of the Mayo court’s

framework, and it requires a claim challenging the subsequent gather decision and compilation of

the associated administrative record, neither of which are before the Court at this time.

That limitation also disposes of FOA’s contention that, before deciding to proceed with

the impending roundup, the BLM should have prepared a separate NEPA document—at the very

least, a DNA—to ensure that the July 2021 gather does not harm “the herd’s health and

viability,” particularly as to genetic diversity. Dkt. 62 at 35. As explained, the problem with this

argument is that FOA has not sought to amend or to supplement its complaint to challenge the

current gather decision as a distinct agency action and, accordingly, the BLM has neither

prepared nor filed an administrative record respecting that decision. To the contrary, FOA

recently “clarify[ied]” that its challenge is to the December 2018 ROD and EA. Dkt. 67 at 2.

Because FOA has not challenged any agency action or decision since then, it cannot demonstrate

that it is likely to succeed on any such unasserted claim.

34 None of this is to say that the December 2018 EA will prove sufficient to satisfy NEPA

for all gathers conducted between now and December 2028. But if FOA—or any other

organization—wants to challenge a roundup that implements the December 2018 ROD and EA,

it will need to challenge that future action in light of the relevant administrative record. Only in

that way will the Court be able to decide, as Mayo requires, whether the subsequent action was

“contemplated and analyzed by the earlier NEPA analysis.” Mayo, 875 F.3d at 21. But the

Court should not—and may not—decide such an APA challenge based on the competing

declarations offered by the BLM and FOA. To do so would place the Court in the shoes of the

administrative agency and would violate the fundamental tenet of administrative law that courts

review agency decisions based solely on the record that was before the agency. Am. Bioscience,

243 F.3d at 582.

3. 2018 Decision’s Compliance with Past Agency Practice

Finally, FOA argues that the BLM departed from its past policies without reasonable

explanation. First, it argues that the Bureau did not comply with the requirement of its handbook

and manual5 to “conduct an appropriate site-specific analysis of the potential environmental

impacts that could result from implementation of a proposed gather in accordance with [NEPA].”

Dkt. 62 at 28 (internal quotation marks omitted) (quoting Dkt. 46 at 12). As already discussed,

however, the Bureau did prepare a site-specific EA in December 2018, and the 2018 EA

contemplated that the Bureau would conduct follow-up gathers, like the one that will commence

on July 13, both to attain the low end of AML and then to maintain AML. Dkt. 46-2 at 281–82.

5 At oral argument, the Court inquired as to the difference between a handbook and a manual. Gus Warr, BLM Utah’s wild horse and burro state lead, explained that a manual is more high- level than a handbook, which offers more specific implementation steps. July 8, 2021 Hrg. Tr. (Rough at 72). 35 Because FOA challenges only the December 2018 actions, the BLM’s failure to conduct a

subsequent site-specific analysis is not before the Court.

Second, FOA argues that the BLM failed to provide the public with 30 days’ notice to

review and to comment on the impending gather. Dkt. 62 at 28–29. That argument fails for

essentially the same reason. FOA has not filed a claim challenging the impending roundup as a

discrete agency action, and, accordingly, it cannot plausibly argue that this Court is likely to

strike down that roundup decision on the merits—because the agency failed to provide the

required notice or for any other reason. But, even if FOA had sought to amend or to supplement

its complaint to assert such a claim, it would fail: although the BLM may have proceeded with

little fanfare, it provided public notice about the planned gather in late February 2021; by early

March 2021, FOA’s President was aware of the plan, Dkt. 64-3 at 2 (Smith Ex. 1); by June 2021,

FOA’s counsel was aware of the plan; and several members of the public, including those

associated with FOA have, in fact, sent comments to the Bureau, Dkt. 64 at 16; see, e.g., Dkt. 64-

12 (Gates Decl. Ex. B). To the extent other members of the public might complain that they

were denied meaningful notice, FOA cannot press such a claim.

Third, FOA argues that the Bureau’s current posture constitutes an unexplained departure

from past litigation positions. Dkt. 62 at 31–32. In support of that contention, FOA points to

Friends of Animals v. Haugrud, 236 F. Supp. 3d 131 (D.D.C. 2017), where the BLM

“maintain[ed] that any future gather [made pursuant to a long-term decision] would be subject to

additional notice, comment, analysis, and judicial review procedures.” Id. at 134; Dkt. 62 at 31–

32. But the fact that BLM represented that, in that case, it would provide further notice and

opportunity for public comment does not mean that it was required to do so or that it would do so

36 in other cases. The Bureau’s position in Haugrud, accordingly, does not conflict in material

respects with the position it now takes.

Fourth, FOA argues that in both 2019 and in planning the impending gather, BLM has

departed without explanation from its policy of issuing gather decisions “31 to 76 [days] before

the proposed start date of the roundup.” Dkt. 62 at 29. The handbook provides in relevant part:

Unless an emergency situation exists, gather/removal decisions shall be issued 31-76 days prior to the proposed gather start to provide an opportunity for administrative review of the authorized officer’s decision to be completed.

Dkt. 46 at 316; see also id. at 14 (manual). With respect to the impending gather, FOA’s

argument fails for two reasons. First, once again, FOA has not filed a claim challenging that

distinct agency action. Second, had FOA done so, it would confront the Bureau’s March 2019

“Permanent Instruction Memorandum,” which “supersedes” the prior guidance and now directs

authorized officers to “issue removal decisions effective upon issuance . . . for situations where

the removal is required . . . to preserve or maintain a thriving natural ecological balance and

multiple-use relationship.” 2019 Permanent Instruction Memorandum (Mar. 15, 2019), available

at https://www.blm.gov/policy/pim-2019-004 [hereinafter “2019 Update Memorandum”]; see

also Dkt. 64 at 22–23 & n.5 (discussing and linking to the 2019 Permanent Instruction

Memorandum). As the Permanent Instruction Memorandum explains, the prior rule was

intended “to allow opponents of the gather decision to pursue an administrative challenge before

going to [f]ederal [c]ourt,” but the rule “did not achieve the intended purpose” because

opponents often went “directly to federal court the day before or during a gather seeking a

Temporary Restraining Order . . . or Preliminary Injunction.” 2019 Update Memorandum.

With respect to BLM’s December 2018 ROD and EA, FOA’s argument has greater force,

but for three reasons the Court remains unpersuaded that FOA is likely to succeed on the merits

37 with respect to the present litigation. First, to the extent FOA maintains that the BLM waited too

long before conducting its initial gather in September 2019—well beyond 76 days after the

ROD—that contention requires consideration of facts outside the administrative record, which

ends with the authorized officer’s decision. Second, and more substantively, the guidance

explains that the purpose of the rule “is to provide an opportunity for administrative review of

the decision,” Dkt. 46 at 14, and there is no reason to believe that FOA was denied that

opportunity. See 5 U.S.C. § 705 (incorporating “the rule of prejudicial error” into judicial

review). Third, the question whether the September 2019 gather occurred too late has no evident

bearing on FOA’s request that the Court enjoin the impending gather. The guidance does not

foreclose phased gathers, which are “nothing new for [the] BLM,” Friends of Animals v.

Pendley, No. 19-cv-3506, 2021 WL 780818, at *10 (D.D.C. Feb. 28, 2021). To be sure, BLM

may somewhat overstate the historical pedigree of this practice, but it has identified three

examples of this long-term approach. See Silvey, 353 F. Supp. 3d at 1001 (examining a ten-year

plan specifying the number of horses to be gathered over that period); Pendley, 2021 WL

780818, at *4 (considering a challenge to a 10-year gather); Leigh v. Salazar, No. 13-cv-6, 2014

WL 4700016, at *1 (D. Nev. Sept. 22, 2014) (considering a challenge to a multi-year gather

plan). Moreover, and even more to the point, it is clear that the BLM has frequently failed to

commence gathers within 76 days of a decision based on myriad “nigh-insurmountable

administrative obstacles.” W. Rangeland Conservation, 265 F. Supp. 3d at 1291; see also id.

(laying out the various reasons that the BLM has historically struggled to begin removing horses

in a timely fashion). Finally, the guidance merely requires that the BLM issue its decision 31 to

76 days before “start[ing]” that gather. Dkt. 46 at 14. The guidance says nothing about when the

gather must end.

38 Finally, FOA argues that “the proposed 2021 roundup cannot be reconciled with the

overall procedures for wild horse management as explained in [the] BLM’s handbook.” Dkt. 62

at 29. Even ignoring the problem that FOA has not brought suit challenging the 2021 decision,

the argument fails. Essentially, FOA argues that the handbook’s categories of land use plans,

HMAPs, and gather plans, as well as the distinct requirements for issuing each, make little sense

if a decision that is neither a land use plan nor an HMAP can have long-term consequences of the

kind contemplated by the 2018 decision. Although FOA is correct that the handbook sets forth

these categories, it is also clear that the Bureau has considerable flexibility in choosing which

types of plans to use and what to put in them. The handbook, for example, contemplates that the

Bureau could use an array of approaches to manage an HMA. It might, for example, use a land

use plan, an EA, an established AML, and a gather plan. Dkt. 46 at 314. Or the Bureau might

use an AML, an HMAP, and a gather plan. Id. Or some other combination. Thus, although the

categories may offer useful organizational tools, the handbook and manual leave the authorized

officer with considerable discretion in framing her decision. FOA points to nothing in either

document that expressly forbids the authorized officer from issuing a long-term gather decision.

In sum, the Court FOA has failed to carry its burden of showing a likelihood of success

on the merits.

B. The Remaining Winter Factors

A party seeking a preliminary injunction must also show that it is likely to suffer an

irreparable injury in the absence of preliminary relief. To meet this burden, “the harm must be

certain and great . . . and so imminent that there is a clear and present need for equitable relief to

prevent irreparable harm.” League of Women Voters v. Newby, 838 F.3d 1, 7–8 (D.C. Cir. 2016)

(internal quotation marks omitted). FOA has offered evidence in declarations that some of its

39 members regularly visit the Onaqui HMA to observe, study, and photograph the horses. See Dkt.

62-1 (Downer Decl.); Dkt. 62-2 (Betten Decl.); 62-3 (Stein Decl.); Dkt. 62-4 (Trabue Decl.).

These individuals, FOA contends, “will suffer aesthetic harm from their reduced ability to view

and photograph wild horses [in the Onaqui HMA], from their inability to see specific horses with

whom they have a personal connection, and from the knowledge that horses they care deeply

about are being harmed by the roundup and removal.” Dkt. 62 at 40.

Consistent with these concerns, the December 2018 EA observes that “[f]ewer wild

horses could result in a reduced opportunity for viewing them by the general public,” although

the BLM asserts that it will attempt to mitigate these effects “by careful selections in the horses

to remove from or retain within the HMA.” Dkt. 46-2 at 310. Beyond reduced opportunities to

observe and photograph wild horses in general, moreover, some FOA members assert that the

roundup will deprive them of the opportunity to observe individual wild horses that they have

come to know. See, e.g., Dkt. 62-2 at 2 (Betten Decl. ¶ 6) (“[I]t still hurts that some of the wild

horses I came to know were rounded up and removed in September 2019.”). One member

mentions a specific “stallion in [his] thirties, Old Man,” for example, that she fears could not

survive the roundup.” Dkt. 62-3 at 2 (Stein Decl. ¶ 6). Given that the September 2019 gather

resulted in two deaths, and undisputed representations at oral argument that one-half percent of

horses typically die during gathers, July 8, 2021 Hrg. Tr. (Rough at 57), concerns about horse

mortality are not unfounded.

The problem for FOA, though, is that the Bureau has offered convincing evidence that

the horses face an equally bleak (or worse) future if they remain on the range. According to

Michael Gates, the District Manager for the BLM West Desert District, Dkt. 64-10 at 2 (Gates

Decl. ¶ 1), the Onaqui Mountain HMA is “experiencing [e]xceptional [d]rought [c]onditions,”

40 posing a “high” risk that the wild horses on the range “could face a dire situation at the current

overpopulation if the scheduled gather is canceled or even postponed,” id. at 3, 5 (Gates Decl.

¶¶ 6, 14). In particular, he explains that, unlike in 2020, there is insufficient “forage production .

. . to help carry the horses through the summer months of 2021,” id. at 5 (Gates Decl. ¶ 14), and

that, “[if] the July gather does not proceed as planned, it is likely that BLM employees . . . will

need to euthanize the animals as an act of mercy if an animal is suffering,” id. at 4 (Gates Decl.

¶ 9). He adds that, “[i]f the scheduled gather is cancelled or postponed[,] it likely will be very

difficult to reschedule due to the other areas across the [W]est which are dealing with draught

impacted conditions” and also because “[t]he HMA is within a military airspace operating area,

and it can take weeks or months to get clearance to operate in that area,” and because “necessary

contractors may become unavailable as other gathers get awarded,” id. at 5–6 (Gates Decl. ¶ 15).

In sum, “[i]f cancelled or postponed, BLM may be unable to get Onaqui back on the gather

schedule even if the situation develops into an emergency, which could result in the suffering

and death of individual animals in the HMA.” Id.

Gates also attests that “[b]ringing feed to the Onaqui HMA to prevent wild horse

suffering and death is not a viable alternative to removing excess animals” because “feeding of

wild horses on the range . . . could lead to further degradation of the rangelands as the estimated

500 wild horses at Onaqui would congregate at feeding locations, creating soil compaction,” and

“[t]he horses would . . . continue to seek out and consume the vegetation on the rangelands[,]

further adding to the unsustainable forage conditions.” Id. at 6 (Gage Decl. ¶ 16). In addition,

the supplemental feed might “contain noxious weed seed,” which “would allow for proliferation

of the noxious weed” on the range, and, moreover, “the wild horses would become accustomed

to being fed and could lose [the] wild nature” that FOA’s members—and others—value. Id.

41 Given this risk to the wild horses in the HMA, the Court cannot conclude that the FOA

members who have offered declarations in support of FOA’s motion for a preliminary injunction

will suffer irreparable harm if an injunction is denied. With or without an injunction, the horses

in the HMA are at risk, and whether removed by the BLM as part of the gather or euthanized due

to poor health resulting from overpopulation and the drought, those who enjoy viewing and

photographing the horses may have fewer opportunities to pursue their avocations and

professional studies. FOA, for its part, disputes this, submitting an array of photographs showing

healthy horses viewed recently in the Onaqui Mountain HMA, Dkt. 65-2 at 4–7 (Betten Decl.),

but this is nonresponsive to the BLM’s contention, which is that the horses are currently

reasonably healthy but will reach dire conditions later in the year as forage runs out, Dkt. 64-10

at 3–4 (Gates Decl. ¶ 8). And although FOA invokes the declaration of ecologist Craig Downer,

who contests the need to remove horses, Dkt. 65-1 (Downer Decl.), at best this brings the

question of irreparable harm into equipoise, and FOA, not the BLM, bears the burden of proof.6

Because the horses face potential, serious harm even if FOA prevails, and because the FOA’s

declarants will suffer related lost opportunities to view the horses in their natural habitat, the

Court concludes that FOA has failed to carry its burden of demonstrating that it or its members

will likely suffer irreparable harm if the Court fails to issue a preliminary injunction.

For similar reasons, the Court is unpersuaded that the balance of equities and the public

interest tilt in favor of granting preliminary relief. Dkt. 62 at 45. Allowing the horses to remain

on the range could imperil their health and the ecological well-being of the range. The BLM has

convincingly explained, moreover, that there is substantial uncertainty whether it would be able

to reschedule the gather if delayed, not merely as a result of agency preferences or priorities, but

6 The Court offered to hear from Mr. Downer at the hearing, but FOA did not accept that offer. 42 also due to lack of resources and difficulty coordinating with parties outside of the agency (like

the military) at a later date. The Court, accordingly, finds that the balance of equities and the

public interest are at least in equipoise and do not support granting an injunction.

CONCLUSION

For the reasons above, the Court will DENY FOA’s motion for a preliminary injunction,

Dkt. 62.

SO ORDERED.

/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge Date: July 13, 2021