International Society for the Protection of Mustangs and Burros v. United States Department of Agriculture

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8

Interna tional Society for the Protection ) No. CV-22-08114-PHX-SPL ) 9 of Mustangs and Burros, ) 10 ) O R D E R Plaintiff, ) ) 11 vs. ) ) 12 United States Department of ) 13 Agriculture, et al., ) ) ) 14 Defendants. ) 15 Before the Court is Plaintiff International Society for the Protection of Mustangs 16 and Burros’ (“Plaintiff” or “ISPMB”) Motion for Reconsideration (Doc. 38) in which 17 Plaintiff requests that this Court grant relief, pursuant to Federal Rule of Civil Procedure 18 60(b)(2), from its July 28, 2022 Order (Doc. 36) denying Plaintiff’s request for a 19 preliminary injunction. Plaintiff attaches the Declaration of Gary Slaughter as new 20 evidence that horses existed on the Apache National Forest (“ANF”) in 1971. (Doc. 38-2). 21 Plaintiff asks the Court to consider Mr. Slaughter’s Declaration and whether it would have 22 altered the Court’s decision to deny injunctive relief. (Doc. 38 at 4). 23 As an initial matter, Defendants correctly point out in their Response (Doc. 40) that 24 Plaintiff’s reliance on Rule 60(b)(2) is misplaced. Rule 60(b) provides grounds for relief 25 from a final judgment; the Ninth Circuit has specifically held that “a preliminary injunction 26 is not a ‘final judgment, order, or proceeding’ that may be addressed by a motion under 27 Rule 60(b).” Prudential Real Est. Affiliates, Inc. v. PPR Realty, Inc., 204 F.3d 867, 880 28 1 (9th Cir. 2000) (citing Fed. R. Civ. P. 60(b)). Regardless, the Court “has discretion to 2 reconsider and vacate a prior order,” Reddy Ice Corp. v. Schur Mktg. & Techs. U.S.A. Inc., 3 No. CV 09-1670-PHX-SRB, 2010 WL 11515548, at *1 (D. Ariz. July 14, 2010) (citing 4 Barber v. Hawaii, 42 F.3d 1185, 1198 (9th Cir. 1994)), and the Court will simply construe 5 Plaintiff’s Motion as requesting the Court to exercise such discretion in this case. That said, 6 “[m]otions for reconsideration are generally disfavored . . . and should be granted only in 7 rare circumstances.” Id. (citation omitted). “Reconsideration is only appropriate if: (1) the 8 court is presented with newly discovered, previously unavailable, evidence; (2) the court 9 committed a clear error of law and the initial decision was manifestly unjust; or (3) there 10 has been an intervening change in controlling law.” Id. (citing Sch. Dist. No. 1J, 11 Multnomah Cnty., Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993)); see also LRCiv. 12 7.2(g)(1) (“The Court will ordinarily deny a motion for reconsideration of an Order absent 13 a showing of manifest error or a showing of new facts or legal authority that could not have 14 been brought to its attention earlier with reasonable diligence.”). 15 On July 28, 2022, this Court entered an Order (Doc. 36) denying Plaintiff’s request 16 for a preliminary injunction that would have enjoined Defendants from selling certain 17 horses captured on the ANF and from capturing, selling, or otherwise removing any other 18 horses currently found on the ANF. (Doc. 36 at 24). The Court reasoned that Plaintiff had 19 failed to show a likelihood of success on the merits of any of its four claims for relief, 20 which included violations of the National Environmental Policy Act (“NEPA”) and the 21 Wild Free-Roaming Horses and Burros Act of 1971 (“WHA”). (Id.). A primary issue with 22 Plaintiff’s argument was Plaintiff’s lack of meaningful evidence showing that horses 23 existed on the ANF when the WHA passed in 1971 and that the horses-at-issue here are 24 descendants of such horses and are therefore entitled to WHA protection. (Id. at 15–17). 25 Now, Plaintiff offers the Declaration of Mr. Slaughter, a man who was born in 1945 and 26 who spent a substantial portion of his young life in and around the relevant areas of the 27 ANF. (Doc. 38-2 at 3). According to Mr. Slaughter’s Declaration, he “observed many wild 28 horses” on the land from 1960 through 1972, and “[t]hese horses were unbranded and 1 unclaimed horses.” (Id.). Defendants first argue that Mr. Slaughter’s Declaration does not 2 constitute “newly discovered” evidence because it “could have been discovered with 3 reasonable diligence well before the time that Plaintiff had filed its motion for emergency 4 injunctive relief.” (Doc. 40 at 4). Defendants additionally argue that, even if Mr. 5 Slaughter’s Declaration was “newly discovered,” the evidence is not so substantial as to 6 demand a different outcome. (Id. at 6–7). In other words, even if the evidence was 7 considered, it would not have made a difference. The Court agrees. 8 The Court need not resolve the issues surrounding Mr. Slaughter’s Declaration1 9 because even taking Mr. Slaughter’s testimony into account, the evidence is not so 10 significant as to demand a different outcome with respect to this Court’s denial of 11 injunctive relief. Mr. Slaughter merely asserts that he saw wild horses in the 1960’s and 12 early 1970’s. Not only is this just the account of a single person, but it is also unclear 13 whether Mr. Slaughter’s use of the term “wild horses” is even consistent with the WHA’s 14 definition of that term. Moreover, Defendants point to a 1997 statement from Mr. Slaughter 15 in which he was quoted as using the term “wild” in reference to unauthorized livestock. 16 This additionally undermines the credibility of Mr. Slaughter’s Declaration. In sum, 17 Plaintiff has failed to show the existence of new evidence that was reasonably not 18 discoverable prior to the initial motion for injunctive relief and that would have changed 19 this Court’s decision on the matter. 20 /// 21 ///

22 1 On August 18, 2022, Plaintiff’s counsel Rita M. Gara filed a Declaration 23 explaining that Mr. Slaughter’s daughter, Jennifer, was apparently very upset with Plaintiff’s counsel obtaining the Declaration from Mr. Slaughter. (Doc. 41). Ms. Gara’s 24 Declaration further states that she received an email from Jennifer with an attached letter— 25 signed by Mr. Slaughter—asking that Ms. Gara “revoke and remove [Mr. Slaughter’s] declaration” and that “Mr. Slaughter did not understand the nature of the declaration and 26 was under duress when he signed it.” (Id. at 4). Ms. Gara has since reached out to the 27 Slaughters seeking clarification but has been unable to reach them; Plaintiff’s counsel has not asked this Court to strike Mr. Slaughter’s Declaration, despite the issues raised by 28 Jennifer and Mr. Slaughter. 1 Accordingly, 2 IT IS ORDERED that Plaintiff's Motion for Reconsideration (Doc. 38) is denied. 3 Dated this 22nd day of August, 2022. 4

6 United States District kadge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28