D.C. District Court Rejects Challenge to BLM Wild Horse Removal Decisions

by John M. Simpson.

The U.S. District Court for the District of Columbia recently rejected claims challenging actions by the U.S. Department of Interior, acting through the Bureau of Land Management (BLM), to remove wild horses from an area of federal land in Nevada known as the Caliente Complex. In 2008, BLM issued a resource management plan (RMP) for the area that, due to wild hors e overpopulation and the ecological effects that stemmed therefrom, effectively set an appropriate management level of wild horses as zero for the entire Complex.  BLM thereupon removed horses from the Complex, but due to overpopulation and ecological imbalance, BLM determined in 2018 that all wild horses be removed (2018 Gather Decision).  Plaintiffs challenged both actions as contrary to the Wild Free-Roaming Horses and Burros Act (WHBA) and the National Environmental Policy Act (NEPA). The court granted summary judgment for the federal defendants and dismissed all claims.   American Wild Horse Campaign v. Bernhardt, No. 18-1529 (BAH) (D.D.C. Feb. 13, 2020).

The court determined that plaintiffs’ challenge to the 2008 RMP was barred by the six-year statute of limitations in 28 U.S.C. § 2401 applicable to civil claims against the federal government:

The decision not to manage the Caliente Complex for horses was made over a decade ago, over the objections of one of the plaintiffs, see Compl. ¶ 11, yet the plaintiffs took no steps to challenge that 2008 decision, even when BLM implemented it in the 2009 Gather Decision. The plaintiffs’ decision to sit on their hands until the issuance of the 2018 Gather Decision carries consequences. The plaintiffs remain free to engage in efforts to persuade BLM to reconsider its decision, to petition Congress to intervene, or to participate in any agency decisionmaking process that occurs when the 2008 RMP requires revision. What they may not do is ignore the limitations period applicable to challenges to agency action.

Slip op. at 28. The court also rejected plaintiffs’ argument, that for purposes of limitations, the 2018 Gather Decision had essentially “reopened” the 2008 RMP therefore making their challenge to that decision timely.  Id.

While plaintiffs’ challenge to the 2018 Gather Decision was timely, the court rejected the plaintiffs’ claims on the merits.  As to plaintiffs’ claim that the BLM had acted contrary to the WHBA, the court ruled that

BLM properly determined that the wild horses in the Complex are “excess animals” under the WHBA and that removal is necessary to achieve the effective AML.

Id. at 36. In this regard the court rejected plaintiffs’ arguments that BLM’s assessment was not supported by data or analysis; that the Complex actually had the resources to support a wild horse population; that the failure to achieve rangeland health standards was due to fire and livestock use, not wild horse use; and that BLM had failed to consider viable alternatives to removal such as reduction in livestock grazing.  Id. at 34-36.

Plaintiffs’ NEPA claim fared no better. The court rejected the argument that BLM had not taken a “hard look” at the environmental consequences of its actions. That there were other causes of rangeland deterioration did not mean that wild horses cause no ecological damage themselves. Id. at 37.  Nor was BLM required to consider the alternative of reducing livestock grazing:

[T]he purpose of the 2018 Gather Decision was “to remove all excess wild horses from areas [in the Caliente Complex] not designated for their long-term maintenance and to achieve and maintain a thriving natural ecological balance and multiple use relationship on the public lands . . . in conformance with the decision in the 2008 Ely RMP to return these areas to HA status.” AR 7. This was not only an appropriate purpose in light of the statutory scheme, but also the required one. … The range of reasonable alternatives is delimited by the goal of removing wild horses from the Caliente Complex, and the plaintiffs’ proposal to reduce livestock grazing permits would not help achieve that objective.

Id. at 41.  Finally, the court ruled that BLM had disclosed the relevant environmental information to the public.