Attorney for Plaintiff

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Complaint 1

Michael Ray Harris (CA Bar No. 179544) Friends of Animals Western Region Office 7500 E. Arapahoe Road, Suite 385 Centennial, CO 80112 Tel: (720) 949-7791 [email protected] Attorney for Plaintiff

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

FRIENDS OF ANIMALS,

Plaintiff,

v.

ALAN BITTNER, in his official capacity as the Northern California District Manager for the United State Bureau of Land Management; and THE UNITED STATE BUREAU OF LAND MANAGEMENT, an agency of the United States,

Defendants.

Case No.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

INTRODUCTION

1. Plaintiff, Friends of Animals, files this action on its own behalf and on behalf of its

adversely affected members to challenge a New Rule and Decision that drastically alter

BLM’s past policy and practice of managing wild horses, undermine public participation,

and threaten the health and viability of unique wild horses. Specifically, Friends of

Animals challenges the November 1, 2019 Decision Record and Finding of No Significant

Impact for the Twin Peaks Herd Management Area Wild Horse and Burro Gather Plan,

DOI-BLM-CA-NO50-2019-0011-EA (hereinafter, “Ten-Year Roundup Decision”); and the

Case 2:19-cv-02280-JAM-DMC Document 1 Filed 11/11/19 of 24

mailto:[email protected]

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Permanent Instruction Memorandum (PIM) 2019-004, Issuance of Wild Horse and Burro

Gather Decisions (hereinafter, “New Rule”).

2. The methods and scope of the Ten- Year Roundup Decision are unprecedented in

this area. The Ten-Year Roundup Decision authorizes rounding up and permanently

removing over eighty percent of the wild horses and burros from the Twin Peaks Herd

Management Area (HMA). In addition, the Ten-Year Roundup Decision authorizes

chemical fertility control treatments to an undisclosed number of mares; altering the

natural sex ratio of wild horses on the range; and castrating an undisclosed number of

stallions, some of which will be returned to the range. Finally, the Ten-Year Roundup

Decision authorizes BLM to continually roundup, remove, drug, and castrate wild horses

for ten years after the initial roundup. Although BLM has issued decisions to roundup

wild horses in the Twin Peaks HMA dozens of times before, it has never proposed to

continually roundup wild horses for ten-years based on a previously established

population target. Nor has BLM ever proposed to return castrated stallions back to the

range as part of its management decisions in the area.

3. Moreover, BLM’s past practice and policy has been to issue site-specific

documentation pursuant to the National Environmental Policy Act (NEPA) before every

non-emergency roundup. Until now, BLM has followed this policy in the Twin Peaks HMA

and provided the public with opportunity to comment on such decisions. This process

provided the public an opportunity to participate and provide information about the

potential ramifications to the horses from BLM’s proposed management decisions. It also

allowed the courts to act as a check to prevent bad decisions that do not pass legal muster

from going into effect.

4. Here, BLM has removed this important procedure and effectively cut the public

out of the process. Instead, BLM proposes to authorize continued roundups for ten-years

with no opportunity for the public to review or comment on its decisions.

5. This Ten-Year Roundup Decision was issued pursuant to the New Rule that

redefines how BLM will issue wild horse and burro removal decisions. The New Rule


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Complaint 3

directs BLM to eliminate public participation for each roundup by issuing a single

decision to cover multiple years and removing the requirement for NEPA analysis when

implementing long-term plans. According to the New Rule, if BLM issues a multi-year or

open-ended wild horse and burro management decision, then no further NEPA analysis is

required to continue implementing actions impacting wild horses. This is a stark change

from BLM’s long-standing policy to provide public participation for each roundup, not

just on broad, long-term management decisions. BLM issued the new rule without any

notice to the public or opportunity to comment.

6. The Ten-Year Roundup Decision and New Rule not only drastically change the way

BLM is managing wild horses in the Twin Peaks HMA, they also violate the law in several

respects.

7. First, the Ten-Year Roundup Decision violates the Wild Free-Roaming Horses and

Burros Act (WHBA) requirement that BLM make a determination before removing wild

horses and burros that such animals are excess, that removal is necessary, and that such

determination be based on current information. 16 U.S.C. § 1333 (a), (b)(2).

8. Second, the Ten-Year Roundup Decision violates BLM’s obligations to conduct

management activities at the minimal feasible level; manage wild horses and burros as

self-sustaining populations of healthy animals in balance with other uses; undertake

management activities with the goal of maintaining free-roaming behavior; protect wild

horses and burros from capture, branding, harassment, or death; and to treat wild horses

and burros as an integral part of the natural system of public lands. See 16 U.S.C. 1333; 43

C.F.R. § 4700.0-6(a).

9. Third, in issuing the Ten-Year Roundup Decision, BLM also violated its obligations

under NEPA to: (1) prepare an environmental impact statement, (2) consider reasonable

alternatives, and (3) fully evaluate the impacts and alternatives to the proposed

decisions.

10. Finally, BLM issued the New Rule in violation of the Administrative Procedure Act

(APA). BLM failed to provide the public notice of the New Rule before implementing it


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Complaint 4

and failed to solicit comments on the New Rule as required by the APA. Finally, BLM

failed to acknowledge or offer a reasonable explanation for the rule change.

11. For these reasons, and as further alleged below, Friends of Animals seeks a

declaration from the Court that Defendants violated the WHBA, NEPA, and the APA.

Friends of Animals further requests that the Court vacate and remand the Ten-Year

Roundup Decision and New Rule, and to enjoin the removal of wild horses and burros

from in and around the Twin Peaks HMA and/or the use of population control measures

authorized by the Ten-Year Roundup Decision.

PARTIES

12. Friends of Animals is a nonprofit, international animal advocacy organization,

incorporated in the state of New York since 1957. Friends of Animals has nearly 200,000

members worldwide. Friends of Animals and its members seek to free animals from

cruelty and exploitation around the world, and to promote a respectful view of

nonhuman, free-living and domestic animals. Friends of Animals informs its members

about animal advocacy issues and its progress in addressing them through its magazine,

ActionLine, its website, social media, and public events. Friends of Animals regularly

advocates for the right of wild horses and burros to live freely on public lands, and for

more transparency and accountability in BLM’s “management” of wild horses and burros.

13. Friends of Animals and its members have a significant interest in the wild horses

and burros at and around the Twin Peaks Herd Management Area (HMA). For example,

Friends of Animals’ members Craig Downer and Jesica Johnston regularly visit the Twin

Peaks HMA and observe and study the wild horses and burros that reside there. Mr.

Downer and Ms. Johnston participated in a flight over the Twin Peaks HMA to assess the

population and evaluated the habitat condition in the Twin Peaks HMA. Ms. Johnston

wrote a thesis on California wild horses and burros that included an in-depth analysis

BLM’s Eagle Lake Field Office’s management considerations for wild horses and burros in

the Twin Peaks HMA. Mr. Downer has written books about wild horses and has long


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Complaint 5

evaluated the ramifications of the federal government’s treatment of wild horse

populations in the West. He has written articles about the benefits of wild horses to the

ecosystem, including their positive role in fire suppression, as well as the impacts of the

fertility control drug Porcine Zona Pellucida (PZP) on wild mares. Mr. Downer and Ms.

Johnston both personally enjoy observing wild horses and burros in the Twin Peaks HMA.

Mr. Downer and Ms. Johnston’s professional and recreational interests in observing,

studying, and photographing the wild horses and burros in the Twin Peaks HMA would

be injured if BLM proceeds with the proposed actions laid out in the Ten-Year Wild Horse

Roundup Decision. Friends of Animals members’ injuries are fairly traceable to

Defendants’ conduct and would be redressed by the relief sought by Friends of Animals in

this case.

14. Defendant Alan Bittner is the Northern California District Manager for BLM.

Defendant Bittner oversees wild horse management activities in the Twin Peaks HMA.

Defendant Bittner authorized and signed the Ten-Year Roundup Decision and the

corresponding Finding of No Significant Impact.

15. Defendant, the United States Bureau of Land Management, is an agency located

within the Department of the Interior. The agency administers over 245 million surface

acres of public lands, most of which are in twelve Western states, including California.

The Twin Peaks HMA is located on BLM administered public land, and the agency is

responsible for ensuring that federally administered actions within the HMAs comply

with the requirements of all federal laws.

JURISDICTION AND VENUE

16. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 (federal

question). This action presents a case and controversy arising under the WHBA and

NEPA, federal statutes. This Court also has jurisdiction pursuant to 28 U.S.C. § 1346, as

the United States is a defendant. The relief sought is authorized by 28 U.S.C. § 2201

(declaratory judgment) and 28 U.S.C. § 2202 (injunctive relief).


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Complaint 6

17. Venue properly lies in this Court pursuant to 28 U.S.C. § 1391(e). A substantial

part of the events giving rise to these claims occurred in this judicial district, as the

challenged Decision Record was issued by BLM’s Northern California District Office in

Shasta County, which is located in this judicial district.

STATUTORY BACKGROUND

A. Wild Free-Roaming Horses and Burros Act.

18. In 1971, Congress passed the Wild Free-Roaming Horses and Burros Act

(WHBA), 16 U.S.C. §§ 1331 et seq., finding that “wild free-roaming horses and burros are

living symbols of the historic and pioneer spirit of the West; that they contribute to the

diversity of life forms within the Nation and enrich the lives of the American people; and

that these horses and burros are fast disappearing from the American scene.” Upon

finding this, Congress stated its policy was that “wild free-roaming horses and burros

shall be protected from capture, branding, harassment, or death, and to accomplish this

they are to be considered in the area where presently found as an integral part of the

natural system of public lands.” 16 U.S.C. § 1331.

19. The WHBA requires 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 lands.” 16 U.S.C. §1333(a).

Additionally, the WHBA requires management of wild horses and burros to be at “the

minimal feasible level.” Id.

20. To do so, for each HMA, BLM must do the following: (1) maintain a current

inventory of wild horses and burros in the management area, (2) “determine [the]

appropriate management level” of wild horses and burros that the HMA can sustain

(AML), and (3) determine the method of achieving the designated AML and managing

horses within it. 16 U.S.C. § 1333(b)(1); 43 C.F.R. §§ 4710.2, 4710.3-1. An AML, according

to BLM’s Wild Horses and Burros Management Handbook, is “expressed as a population

range within which [wild horses and burros] can be managed for the long term” in a

given HMA without resulting in rangeland damage.


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Complaint 7

21. BLM must manage wild horses and burros as self-sustaining populations of healthy

animals in balance with other uses and the productive capacity of their habitat. 43 C.F.R. §

4700.0-6(a).

22. The regulations further require that “[m]anagement activities affecting wild horses

and burros shall be undertaken with the goal of maintaining free-roaming behavior.” 43

C.F.R. § 4700.0-6(c).

23. BLM’s management activities affecting wild horses and burros shall also be

undertaken with the goal of maintaining wild horses and burros on public lands. 43 C.F.R.

§ 4700.0-6(c).

24. In limited circumstances, the WHBA allows the removal of wild horses and burros.

However, prior to gathering or removing any wild horses or burros from the range, the

WHBA requires BLM to make a determination that: (1) “an overpopulation [of wild

horses and burros] exists on a given area of the public lands,” and (2) “action is necessary

to remove excess animals.” 16 U.S.C. § 1333(b)(2).

25. The WHBA defines the term “excess” as animals that “must be removed from an

area in order to preserve and maintain a thriving ecological balance and multiple-use

relationship in that area.” 16 U.S.C. § 1332(f).

26. The WHBA mandates that when BLM is making a determination about whether an

overpopulation exists, and action should be taken to remove excess animals it should

consult with various individuals. For example, BLM should consult with individuals

independent of Federal and State government as have been recommended by the

National Academy of Sciences, and others that it determines have scientific expertise and

special knowledge of wild horse and burro protection, wildlife management and animal

husbandry as related to rangeland management. 16 U.S.C. § 1333.

27. BLM’s Wild Horses and Burros Management Handbook explains that:

Before issuing a decision to gather and remove animals, the authorized officer shall first determine whether excess [wild horses and burros] are present and require immediate removal. In making this determination, the authorized officer shall analyze grazing utilization and distribution, trend in range


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Complaint 8

ecological condition, actual use, climate (weather) data, current population inventory, wild horses and burros located outside the HMA in areas not designated for their long-term maintenance and other factors such as the results of land health assessments which demonstrate removal is needed to restore or maintain the range in a [thriving, natural ecological balance].

BLM, Wild Horses and Burros Management Handbook H-4700-1 (2010) at 19.

28. BLM’s regulations provide that it can close public lands to grazing use by

domesticated cattle or sheep “if necessary to provide habitat for wild horses or burros, to

implement herd management actions, or to protect wild horses or burros from disease,

harassment or injury.” 43 C.F.R. § 4710.5.

B. The National Environmental Policy Act.

29. NEPA is our nation’s basic charter for environmental protection.

30. Congress enacted NEPA for two central purposes. First, Congress sought to ensure

that all federal agencies examine the environmental impacts of their actions before acting.

Second, Congress sought to provide the public with a statutory means to be informed about,

and to comment on, the environmental impacts of proposed agency actions. NEPA requires

federal agencies to analyze the environmental impact of a particular federal action before

proceeding with that action. See 42 U.S.C. § 4332(2)(C).

31. Accordingly, before a federal agency can act in a way that significantly affects the

quality of the human environment, NEPA requires the acting agency to prepare a detailed

environmental impact statement (EIS) that discusses, among other things: “(i) the

environmental impact of the proposed action, (ii) any adverse environmental effects

which cannot be avoided should the proposal be implemented, [and] (iii) alternatives to

the proposed action.” 42 U.S.C. § 4332(2)(C).

32. Whether an agency action is “significant” enough to require preparation of an EIS

involves “considerations of both context and intensity.” 40 C.F.R. § 1508.27. The context

of the action includes factors such as “society as a whole (human, national), the affected

region, the affected interests, and the locality.” 40 C.F.R. § 1508.27(a). Intensity “refers to

the severity of the impact” and requires BLM to consider several factors including the


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Complaint 9

following: impacts of the action, unique characteristics of the geographic area, the degree

to which environmental effects of the proposed action are highly controversial, the

degree to which the action may have a precedential effect, the degree to which possible

effects of the action are highly uncertain or involve unique or unknown risks, whether the

action is related to other actions with individually insignificant but cumulatively

significant impacts, and the degree to which the action may have an adverse effect on

threatened species or their critical habitat. 40 C.F.R. § 1508.27(b).

33. The EIS is the cornerstone of NEPA. An EIS is required for all “major Federal

actions significantly affecting the quality of the human environment.” 42 U.S.C. §

4332(2)(C). The requirement to prepare an EIS is broad and intended to compel agencies

to take seriously the potential environmental consequences of a proposed action.

34. Agencies may prepare an Environmental Assessment (EA) to determine whether

a proposed action requires preparation of an EIS or warrants a Finding of No Significant

Impact (FONSI).

35. An EA must take a “hard look” at the potential consequences of agency actions

and provide enough evidence and analysis for determining whether to prepare an EIS.

Agencies must involve the public, to the extent practicable, in preparing this assessment.

40 C.F.R. § 1501.4(b).

36. If the agency decides the impacts are not significant, it must supply a convincing

statement of reasons why, and make its FONSI available to the public. 40 C.F.R. §

1501.4(e).

37. A significant effect may exist even if the federal agency believes that on balance

the effect will be beneficial. 40 C.F.R. § 1508.27(b)(1).

38. Whether in an EA or EIS, an agency must adequately evaluate all potential

environmental impacts of the proposed action. See 42 U.S.C. § 4332(2)(C). To meet this

obligation, the federal agency must identify and disclose to the public all foreseeable

impacts of the proposed action, including direct, indirect, and cumulative impacts. See id.

§ 4332(2); see also 40 C.F.R. §§ 1508.7-1508.8.


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39. BLM directives state that an appropriate NEPA analysis and issuance of a decision

is required prior to removing wild horses. BLM, Range Management Manual 4720.2.21,

4720.3 (“[T]he authorized officers shall conduct an appropriate site-specific analysis of

the potential environmental impacts that could result from implementation of a proposed

gather in accordance with [NEPA].”)

40. BLM’s guidance documents also specify that a key element of its analysis will be to

make a determination of whether excess wild horses or burros are present that require

immediate removal. BLM, Range Management Manual 4720, Removal of Excess Wild

Horses at 7.

C. The Administrative Procedure Act.

41. The Administrative Procedure Act (APA) governs the internal procedures of

administrative agencies, including how they interact with the public. The APA defines an

“agency” broadly to mean “each authority of the Government of the United States,” unless

expressly excluded from the Act. 5 U.S.C. § 551(1).

42. BLM is not expressly excluded from the APA.

43. The APA authorizes a reviewing court to “hold unlawful or set aside agency action,

findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law” or “without observance of procedure required by

law.” Id. § 706(2).

44. The APA defines “agency action” as “the whole or part of an agency rule, order,

license, sanction, relief, or the equivalent or denial thereof, or failure to act.” Id. § 551(13).

45. The APA defines “rule” to include “the whole or part of an agency statement of

general or particular applicability and future effect designed to implement, interpret, or

prescribe law or policy . . . .” Id. § 551(4).

46. The APA defines “rule making” as an “agency process for formulating, amending, or

repealing a rule.” Id. § 551(5).


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47. Before making a rule, an agency must publish notice of the proposed rule making in

the Federal Register, “unless persons subject thereto are named and either personally

served or otherwise have actual notice thereof in accordance with law.” Id. § 553(b).

48. The notice must include the following: “(1) a statement of the time, place, and nature

of public rule making proceedings; (2) reference to the legal authority under which the rule

is proposed; and (3) either the terms or substance of the proposed rule or a description of

the subjects and issues involved.” Id. § 553(b)(1)-(3).

49. After notice, the agency must “give interested persons an opportunity to participate

in the rule making through submission of written data, views, or arguments . . . .” Id. §

553(c).

FACTUAL ALLEGATIONS

A. Twin Peaks Herd Management Area.

50. The Twin Peaks HMA encompasses 789,852 acres of public, private, and state

lands within Lassen County, California and Washoe County, Nevada, including

approximately 656,173 acres of BLM-administered public lands.

51. In 1971, when Congress passed the WHBA, wild horses and burros were present

in or near the area now designated as Twin Peak HMA.

52. In 1989, BLM’s Twin Peaks Herd Management Area Plan set the Appropriate

Management Level (AML) for wild horses in the Twin Peaks HMA as 600-850 wild horses

and 75-110 burros.

53. The Twin Peaks Herd Management Area Plan also initiated five home ranges

within the HMA with separate AMLs. AMLs for one range was adjusted in 1993 and

another was adjusted in 1998.

54. In 2001, BLM revised the AML again, so that the total AML for the Twin Peaks

HMA was 448-758 wild horses and 72-116 burros.

55. BLM began a process for a new herd management area plan, but never completed

the process.


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Complaint 12

56. BLM has not revised or reevaluated the AML for the Twin Peaks HMA since 2001.

B. Ten-Year Roundup Decision and Environmental Review.

57. A preliminary Twin Peaks Herd Management Area Wild Horse and Burro Gather

Plan (Preliminary EA) was made available for public review from May 31, 2019 to July 1,

2019.

58. The proposed action (Alternative 1) identified in the Preliminary EA was to

continually roundup and remove wild horses and burros for ten years based on the AML

established in 2001, utilize population fertility control treatments (including PZP and

GonaCon), adjust the sex ratio of wild horses in the HMA, and manage a portion of the

male population of wild horses as non-breeding.

59. The alternatives, other than the no action alternative, contained only slight

variations regarding fertility control and core breeding populations. Alternative 2 would

not include a non-reproducing portion of the population and Alternative 3 would not

utilize fertility control or sex ratio adjustments.

60. All three action alternatives included multiple roundups and removals of wild

horses and burros from the Twin Peaks HMA for ten years with no commitment for

further public review or involvement.

61. BLM received approximately 5,440 comment submissions during the public

comment period.

62. Friends of Animals and other commented that BLM failed to consider a reasonable

range of alternatives.

63. Friends of Animals suggested BLM consider three reasonable alternatives

including: reevalauting the AML; adjusting the forage allocated to cattle and sheep; and

allowing natural controls, including the protection of predators.

64. Friends of Animals and others commented on the controversial impacts and

unknown risks associated with fertility controls and returning castrated stallions to the

range.


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65. Friends of Animals and others commented on the inadequate analysis of the

impacts of the proposed action.

66. Friends of Animals and others commented that BLM failed to fully consider the

impacts of the proposed action and alternatives on the genetic viability and sustainability

of wild horses and burros in the Twin Peaks HMA.


impacts of fertility control measures.


impacts of castrating stallions and returning them to the range.


positive impacts of wild horses on the environment, and the impact of the no action

alternative.

70. BLM did not make any substantive changes to the conclusions presented in the

Preliminary EA based on the comments it received.

71. On November 1, 2019, BLM issued the Ten-Year Roundup Decision.

72. The Ten-Year Roundup Decision authorized the removal of the majority of wild

horses and burros in the Twin Peaks HMA.

73. In the Final EA, BLM did not consider the alternatives proposed by Friends of

Animals in detail.

74. In the Final EA, BLM did not consider any additional alternatives in detail other

than those already considered in the Preliminary EA.

75. The Ten-Year Roundup Decision authorizes BLM to remove over eighty percent of

the wild horses and burros currently residing in and around the Twin Peaks HMA and

continually remove wild horses and burros over ten years to reach and maintain the low

AML of 448 wild horses and 72 burros.

76. The Ten-Year Roundup Decision authorizes BLM to manage non-gelded wild

horses at a population of only 448 wild horses and burros at a population of 72 burros

across approximately 800,000 acres.


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77. A BLM sponsored report by the National Academy of Sciences suggests that a

population closer to 5,000 may be necessary to avoid inbreeding depression and other

diseases.

78. The Ten-Year Roundup Decision proposes to remove as many excess wild horses

and burros as feasible and apply fertility control to all mares that are released.

79. The Ten-Year Roundup Decision proposes to manage up to twenty-five percent of

the population as geldings.

80. According to the Preliminary EA, released in May 2019, BLM estimated that the

population of wild horses in the Twin Peaks HMA was 3,506 wild horses and 632 burros.

81. After BLM conducted an aerial count of wild horses in 2019, it estimated that there

were fewer wild horses and burros than originally estimated in the Preliminary EA—

approximately 2,338 wild horses and 520 burros.

82. According to BLM, there was an error that resulted in BLM reporting that there

were more wild horses and burros counted in a 2017 survey than were actually counted.

83. If this error was not noticed, it could have resulted in BLM erroneously removing

hundreds of more wild horses and burros than it is not authorized to remove under the

WHBA.

84. According to the Ten-Year Roundup Decision, future determinations to remove

wild horses and burros will be based only on BLM’s population surveys. BLM has made

no commitment to make BLM’s future analyses or decisions available for public comment

to inform the BLM of any potential errors.

85. Based on BLM’s “corrected” population counts from 2017 and 2019, the

population growth rate was only approximately 7%, significantly less than the 16% to

20% that forms the basis of the Ten-Year Roundup Decision.

86. According to the report from the National Academy of Sciences, BLM’s

management practices are facilitating high horse population growth rates, and in turn

maximizing the number of animals that must be removed and processed through holding

facilities.


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87. The Final EA did not analyze the cumulative impacts of past roundups and

proposed future roundups on the genetic variability and sustainability of wild horses and

burros in the Twin Peaks HMA.

88. The Final EA did not include any genetic reports on burros from the Twin Peaks

HMA.

89. The Final EA did not take a hard look at the impact of the proposed action on the

genetic viability of wild horses and burros in the Twin Peaks HMA or the ability to

maintain healthy, self-sustaining populations of wild horses and burros in the Twin Peaks

HMA.

90. The Ten-Year Roundup Decision authorizes continued use of fertility control

treatments, including PZP and Gonacon.

91. The impacts from PZP and GonaCon are highly controversial and involve unique

and unknown risks.

92. Substantial disputes exist as to the size, nature, and effect of the fertility control

measures approved in the Ten-Year Roundup Decision.

93. The Final EA failed to take a hard look at the impacts of administering fertility

control as authorized in the Ten-Year Roundup Decision.

94. The Final EA acknowledges that it is hard to predict the rate of long-term or

permanent sterility following administration of PZP or GonaCon.

95. The Final EA also acknowledges that predictions about the long-term, population-

level evolutionary response to immunocontraceptive treatments, such as PZP or

GonaCon, are speculative at this point.

96. The Final EA acknowledges the the expected rate for the return to fertility after

mares are treated with ConaCon is unknown, and that it is unknown whether long-term

treatment, or even one booster, could cause permanent infertility.

97. In its FONSI, BLM concludes that the effects of the proposed action are well known

and that there are no uncertain effects that are unique or unknown risks associated with

the Ten-Year Roundup Decision.


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Complaint 16

98. BLM does not reconcile the conflicting statements about the unknown or

controversial impacts of fertility controls in its FONSI and EA.

99. The Ten-Year Roundup Decision authorizes castrating stallions and returning

them to the Twin Peaks HMA as part of its management plan.

100. The impacts from castrating, or gelding wild horses are also highly

controversial and involve unique and unknown risks.

101. A potential disadvantage of both surgical and chemical castration is loss of

testosterone and consequent reduction in or complete loss of male-type behaviors

necessary for maintenance of social organization, band integrity, and expression of a

natural behavior repertoire.

102. Castration harms individual horses by altering their natural behavior and

changing their social standing within the herd.

103. Castrating can also cause hemorrhages, infection, hydrocele (fluid

accumulation), evisceration, and/or death.

104. Castrating older horses also poses increased risks to the horses.

105. Castrating wild horses compromises the horse’s ability to survive on the

range.

106. It is not known whether castrating a portion of the wild horses is an

effective means of controlling the population growth.

107. Castrating wild horses is not management at the minimal feasible level.

108. BLM has acknowledged that wild horses are rarely castrated and released

back into the wild, resulting in few studies that have investigated their behavior in free-

roaming populations.

109. BLM began a separate study of castrating wild horses in order to gather

and analyze data that might better assist land managers and specialists to make better

decisions about use of gelding as a management tool.

110. BLM acknowledged that further study is needed because of the high level of

uncertainty associated with returning castrated horses to the range, explaining that it is


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Complaint 17

unknown whether castrated stallions will behave like group stallions, bachelors, or form

a group of their own concentrating in prime habitat or in the vicinity of water sources,

and that the study is necessary to quantify such behaviors and habitat use patterns.

111. The results from BLM’s study are not yet available.

112. The Final EA did not take a hard look at the impacts of castrating wild

horses and returning them to the range.

113. BLM did not indicate why it could not wait until the results of the study

were available before approving a ten-year management plan that includes releasing

castrated wild horses into the Twin Peaks HMA and managing a non-reproducing

population.

114. The Final EA did not consider scientific information about the positive

impacts of wild horses, including that wild horses help spread and fertilize seeds over

large areas, prevent fires, and can benefit ecosystems.

115. The Final EA did not take a hard look at the potential for wild horses to self-

regulate their populations.

C. BLM’s Determination to Continually Remove Wild Horses and Burros.

116. Range conditions, wild horse and burro numbers, and the appropriate

management levels can change each year.

117. BLM does not have information that removal is necessary throughout the

term of Ten-Year Roundup Decision.

118. BLM’s policy instructs BLM not to remove wild horses and burros based

solely on the AML.

119. BLM’s Ten-Year Roundup Decision is based on AMLs established in land

use decision that are over seventeen years old.

120. According to the applicable land use plans, wild horse and burro herds

should be managed as a viable population of healthy animals.

121. The Ten-Year Roundup Decision does not manage for viable, healthy

populations of wild horses and burros.


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Complaint 18

122. The Ten-Year Roundup Decision does not manage wild horses or burros to

consist of healthy animals that exhibit diverse age structure, good conformation, and any

characteristics unique to the specific herds.

123. BLM failed to consider what qualifies as a self-sustaining, healthy

population of wild horses and burros and how the Ten-Year Roundup Decision would

impact the health and sustainability of wild horses and burros.

D. The Permanent Instruction Memorandum 2019-004 (New Rule).

124. On March 15, 2019, BLM issued Permanent Instruction Memorandum

(PIM) 2019-004 with the subject line “Issuance of Wild Horse and Burro Gather

Decisions” (New Rule).

125. According to the New Rule, the memorandum “establishes policy and

guidance for the issuance of [wild horse and burro] gather decisions and NEPA

compliance.”

126. The New Rule supersedes Instruction Memorandum (IM) 2010-130 and

amends Chapter 7 of BLM’s Wild Horse and Burro Management Handbook, which

directed that wild horse and burro roundup decisions be issued 31 to 76 days prior to

initiating roundup activities. BLM WHB Handbook at §§ 7.1 (Figure 7.1), 7.1.2.2.

127. The New Rule directs BLM to issue signed roundup decisions only 14 days

prior to the proposed roundup start date rather than adhering to the former commitment

to issue signed roundup decisions 31 to 76 days prior to the proposed start date of the

roundup.

128. According to the New Rule, “[t]he intent of the 31-76 day lead time was to

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

going to Federal Court.”

129. According to the New Rule, because opponents of roundup decisions often

pursue temporary restraining orders or preliminary injunctions, the 31 to 76 day lead

time “did not achieve the intended purpose” and “impeded management capabilities by

reducing decision-making flexibility.”


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Complaint 19

130. The New Rule directs BLM to “issue decisions authorizing gathers,

removals, or population control actions through a phased approach or over a multi-year

period” in order to provide BLM with “sufficient time to achieve management objectives”

and to “enhance agency flexibility by allowing BLM to adapt to unforeseen

circumstances.”

131. The New Rule changes BLM’s former policy requiring BLM to prepare a

NEPA analysis prior to every roundup.

132. According to the New Rule, if BLM “issues a multi-year or open-ended

decision to gather and manage [wild horses and burros] on the public lands, then no

further decision is required to continue implementing the action unless the BLM

determines that a change in conditions or objectives requires a new NEPA analysis and

decision.”

133. BLM did not notify the public before issuing the New Rule, nor did it solicit

public comments on the new rule.

CLAIMS

FIRST CAUSE OF ACTION

(VIOLATION OF WHBA: FAILURE TO MAKE PROPER EXCESS DETERMINATIONS BASED ON CURRENT INFORMATION)

134. Friends of Animals herein incorporates all allegations contained in the

preceding paragraphs.

135. On the above facts and legal obligations, Defendants violated the WHBA by

failing to make an appropriate determination, based on current information, that wild

horses and burros are excess and removal is necessary prior to authorizing the

permanent removal of wild horses and burros over a ten-year period from the Twin

Peaks HMA. Defendants do not, and cannot, have information that removal is necessary

for ten years into the future when the condition on the range and wild horse and burro

population is changing.


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Complaint 20

136. Defendants Ten-Year Roundup Decision is therefore arbitrary and

capricious, an abuse of discretion, and not in accordance with law or required procedure,

and should be vacated. 5 U.S.C. § 706.

SECOND CAUSE OF ACTION

(VIOLATIONS OF WHBA: FAILURE TO PROTECT WILD HORSES AND BURROS)



138. On the above facts and legal obligations, Defendants violated the WHBA and

its implementing regulations by approving the Ten-Year Roundup Decision to continually

roundup and remove wild horse and burros, administer fertility controls, and sterilize a

portion of the population. The Decision violates BLM’s obligations to ensure management

activities occur at the minimal feasible level, to ensure that wild horses and burros are

managed as self-sustaining populations of healthy animals in balance with other uses and

the productive capacity of their habitat, and to ensure that management activities are

undertaken with the goal of maintaining free-roaming behavior.

139. The Ten-Year Roundup Decision, which proposes to roundup wild horses

and burros, brand them, administer fertility control, and castrate stallions — even if they

are not determined to be excess animals — also violates BLM’s obligation to protect wild

horses from capture, branding, harassment, or death, and to treat them as an integral part

of the natural system of public lands.

140. Defendants Ten-Year Roundup Decision is therefore arbitrary and

capricious, an abuse of discretion, and not in accordance with law or required procedure,

and should be vacated. 5 U.S.C. § 706.

THIRD CAUSE OF ACTION

(VIOLATION OF NEPA: FAILURE TO PREPARE AN EIS)




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Complaint 21

142. The implementation of the Ten-Year Roundup Decision, including rounding

up of over 2,000 wild horses and hundreds of burros from in and around the Twin Peaks

HMA, administering chemical fertility control treatment to an undisclosed number of

mares, and castrating an undisclosed number of wild stallions for a period of ten years,

constitutes a major federal action that will significantly affect the quality of the human

environment and therefore an EIS is required under NEPA.

143. Before issuing the Ten-Year Roundup Decision, BLM did not prepare an

Environmental Impact Statement or provide a convincing statement of reasons for why

the impacts of the Ten-Year Roundup Decision would not be significant.

144. In issuing the Ten-Year Roundup Decision without an Environmental

Impact Statement or convincing statement of reasons for its Finding of No Significant

Impact, Defendants’ actions are arbitrary and capricious, an abuse of discretion, and not

in accordance with law or required procedure, in violation of the APA. 5 U.S.C. § 706.

FOURTH CAUSE OF ACTION

(VIOLATION OF THE NEPA: FAILURE TO CONSIDER REASONABLE ALTERNATIVES)

145. Friends of Animals alleges and incorporates by reference all of the


146. On the above facts and legal obligations, Defendants violated NEPA by

failing to consider a reasonable range of alternatives, including: reevalauting the current

AML; adjusting the forage allocated to cattle and sheep; and allowing natural controls,

including the protection of predators.

147. In issuing the Ten-Year Roundup Decision without considering a

reasonable range of alternatives, Defendants actions are arbitrary and capricious, and not

in accordance with law or required procedure, in violation of the APA. 5 U.S.C. § 706(2).

//

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Complaint 22

FIFTH CAUSE OF ACTION

(VIOLATIONS OF NEPA: FAILURE TO TAKE A HARD LOOK AT THE IMPACTS OF PROPOSED ACTIONS)



149. Defendants failed to provide a full and fair discussion of the significant

environmental impacts of the Ten-Year Roundup Decision.

150. On the above facts and legal obligations, Defendants violated NEPA by

failing to independently and adequately analyze the direct, indirect, cumulative, and site

specific effects of the decision to continually roundup, permanently remove, castrate, and/or

administer fertility control to wild horses and burros from the Twin Peaks HMA for a ten year

period.

151. In issuing the Ten-Year Roundup Decision without a complete and

independent analysis of the direct, indirect, cumulative, and site specific impacts of the

proposed action and alternative actions, Defendants actions are arbitrary and capricious,

and not in accordance with law or required procedure, in violation of the APA. 5 U.S.C. §

706.

SIXTH CAUSE OF ACTION

(VIOLATIONS OF THE ADMINISTRATIVE PROCEDURE ACT: FAILURE TO CONDUCT NOTICE AND COMMENT RULEMAKING)



153. In issuing the New Rule, BLM issued a rule that creates rights and duties. The

New Rule changes the criteria for issuing decisions, creates specific obligations that

undermine public participation, and establishes new policies and procedures.

154. In issuing the New Rule, BLM failed to comply with the notice and comment

rulemaking requirements of the APA.


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Complaint 23

155. In issuing the New Rule, and revoking previous policies, BLM’s actions are

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law,

and without the observance of procedure required by law. As such, the New Rule should be

set aside under the APA. 5 U.S.C. § 706.

SEVENTH CAUSE OF ACTION

(VIOLATIONS OF THE ADMINISTRATIVE PROCEDURE ACT: FAILURE TO PROVIDE A REASONED EXPLANATION FOR RULE CHANGE)



157. On the above facts and legal obligations, BLM changed its rules on issuing wild

horse and burro roundup decisions without providing an adequate, reasoned explanation.

158. In issuing the New Rule, BLM abruptly changed its previous rules that, among

other things, required BLM to issue management decisions 31 to 76 days before a proposed

roundup and required BLM to issue a site-specific NEPA document prior to each roundup.

159. BLM claims the New Rule ensures that the public has an opportunity to

meaningfully participate in management decisions. However, the New Rule significantly

undermines the public’s ability to meaningfully participate by allowing BLM to continually

implement decisions for an infinite period without an obligation for further public

participation.

160. BLM did not acknowledge this rule change or provide a reasonable

explanation for issuing the New Rule.

161. By issuing the New Rule that directs BLM to issue removal decision only 14

days prior to removal and directing BLM to issue multi-year and open-ended decisions

without any further NEPA analysis, and doing so without adequate explanation, BLM’s

actions are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

the law, and without the observance of procedure required by law. As such, the New Rule

should be set aside under the APA. 5 U.S.C. § 706.


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Complaint 24

REQUEST FOR RELIEF

Friends of Animals respectfully requests that this Court enter judgment providing the following relief:

A. Declare that Defendants’ Ten-Year Roundup Decision violated the Wild Free-Roaming Horses and Burros Act and the Administrative Procedure Act;

B. Declare that Defendants’ Ten-Year Roundup Decision and Finding of No Significant Impact violated the National Environmental Policy Act and the Administrative Procedure Act;

C. Enjoin any action previously authorized by Defendants’ Ten-Year Roundup Decision at issue in this case unless and until the violations of federal law set forth herein have been corrected to the satisfaction of this Court;

D. Vacate and remand back to Defendants the Ten-Year Roundup Decision;

E. Declare that BLM’s issuance of the New Rule violates the Administrative Procedure Act;

F. Enjoin any action previously authorized by the New Rule;

G. Vacate and remand back to BLM the New Rule;

H. Award Plaintiff reasonable costs, litigation expenses, and attorneys’ fees associated with this litigation pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 et seq., and/or all other applicable authorities; and/or

I. Grant such further relief as the Court deems just and equitable.

Date: November 11, 2019 Respectfully submitted,

/s/ Michael Harris Michael Ray Harris (CA Bar No. 179544) Friends of Animals Western Region Office 7500 E. Arapahoe Road, Suite 385 Centennial, CO 80112 Tel: (720) 949-7791 [email protected]

Attorney for Plaintiff


mailto:[email protected]

Attorney for Plaintiff

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