United States District Court, D. Montana, Billings Division
P. WATTERS UNITED STATES DISTRICT JUDGE
August 13, 2018, Plaintiffs Ginger Kathrens and The Cloud
Foundation filed an action against Ryan Zinke and the
Department of the Interior, as the parent agency to the
United States Bureau of Land Management (BLM). (Doc. 1).
Before the court is Plaintiffs' motion for a temporary
restraining order and preliminary injunction (Doc. 5) to stop
BLM's planned gather of seventeen Pryor Mountain Wild
Horses, scheduled for September 2, 2018, at the Pryor
Mountain Wild Horse Range.
by the Secretary of the Interior in 1968, the Pryor Mountain
Wild Horse Range was the first nationally designated area
established to provide a home for free roaming horses. (Doc.
13-1, Bates No. 1587). The Range spreads over 38, 000 acres
in Montana and Wyoming. (Id.). Although the exact
origin of the wild horses that live on the Range is not
entirely known, it is generally accepted that the horses are
descendants of New World "Spanish" breeds
originally brought to this country by the Spanish in the
early 1500s. (Doc. 13-1, Bates No. 1592)
1971, three years after the Range was established, Congress
passed the Wild Free Roaming Horses and Burros Act,
("WHA"), 16 U.S.C. §§ 1331-1340, and
declared that wild free-roaming horses and burros are living
symbols of the historic and pioneer spirit of the West and
that they enrich the lives of the American people. See 16
U.S.C. 1333(a). The WHA tasked BLM with caring for and
managing wild horses on lands within its jurisdiction.
of its obligation to manage the Range, BLM issued a herd
management area plan ("HMAP") in 1984 establishing
an appropriate management level ("AML") for the
Range at 115-127 wild horses. (Doc. 13-1, Bates No. 1588). In
1992, BLM modified the 1984 HMAP and re-established the AML
at 85 to 105 wild horses. (Id.). Finally, in 2009,
BLM issued the Pry or Mountain Wild Horse Range
("PMWHR")/Territory EA and HMAP ("2009
HMAP") which authorized an increase in the AML to 90 to
120 horses. (Id. at Bates No. 1748). The purpose of
the 2009 HMAP was to re-establish the AML, to develop
prescriptions for habitat limitations, identify opportunities
for improvement, and to emphasize stabilization of ecological
conditions. (Id. at Bates No. 1585). The 2009 HMAP
continues to apply to the Range today.
2009 HMAP was issued in conformance with the Resource
Management Plan for the Billings Resource Area, the
objectives of which included the following:
- "maintain a viable breeding herd which could
perpetuate the characteristics of the Pry or Mountain wild
- "limit the reproduction rate and perpetuate the
characteristics of the Pry or Mountain Wild Horse;"
- "begin a selection program to retain only those wild
horses with confirmation, color and breeding characteristics
typical of the Pry or Mountain Wild Horses;" and
- "maintain a healthy, viable herd that displays the
characteristics typical of the Pryor Mountain Wild
(Id. at Bates No. 1595-96).
2009 HMAP also set forth herd characteristics objectives, and
selective removal considerations that guide BLM in conducting
gathers. (Id. at Bates No. 1611-12). The herd
characteristics objectives provide for BLM to manage the
population, (1) "for a phenotype reminiscent of a
Colonial Spanish Type Horse," (2) for a balanced sex
ratio, (3) for a core breeding population composed mainly of
five to ten year old horses, (4) to maintain rare or unusual
colors to prevent any one color from becoming dominant or
being eliminated, and (5) to prevent the elimination of
bloodlines while maintaining the core breeding population.
(Id. at 1611). Under the selective removal
considerations, BLM must also consider several factors in
determining which horses to remove, including the removal of
horses younger than five years old that are "genetically
well represented on the range." (Id.). In the
2009 Record of Decision accompanying the 2009 HMAP, BLM
stated that, "[m]onitoring data will continue to be
collected and the AML will be recalculated within five years
or after the revision to the Billings RMP [Resource
Management Plan], whichever comes first." (Doc. 13-1,
Bates No. 1749).
2009, BLM has conducted three gathers based on the 2009 HMAP
AML: one in 2009, 2012 and 2015. (Doc. 13-1, Bates No.
73-74). BLM also annually treated between 36 and 75 mares
with fertility control over this period of time.
(Id. at Bates No. 73-81).
August 23, 2013, Dr. Gus Cothran, an expert geneticist,
issued a "Genetic Analysis of the Pryor Mountains Wild
Horse Range." (Doc. 6-7). In his analysis, Dr. Cothran
found that the genetic variability levels for the Pryor Herd
has been in decline for all measures with a "general
trend for decline in variations levels for the herd."
(Id. at 4). Based on this information, Dr. Cothran
opined that the "best way to maintain current levels
would be to increase the population size if range conditions
allow." (Id. at 4-5). In May 2016, BLM began
adding additional acreage to the Range which had been closed
to wild horse use prior to that time. (Doc. 6-8); (see also
Doc. 13-1 at Bates No. 0416).
2016, this court found that the BLM had, by its language in
the 2009 ROD, committed to recalculating the 2009 HMAP AML by
2015, but failed to do so. See Friends of Animals v.
Sparks, 200 F.Supp.3d at 1126. Accordingly, this court
held that BLM acted arbitrarily and capriciously when it used
the 2009 AML as the basis for removing 20 young horses from
the Range in 2015. Id. In doing so, this court
pointed out the differing requirements in BLM's Handbook
for re-evaluating the AML and recalculating the AML,
including the need for a HMA Evaluation Report, and a
separate Decision Record when re-evaluating the AML.
Id. at 1123.
months after this court's decision in Sparks, BLM issued
the "Pryor Mountain Wild Horse Range Appropriate
Management Level (AML) Recalculation Report." (Doc.
6-10). In the Report, BLM ran different formulas designed to
measure a maximum carrying capacity for the Range, resulting
in 98 horses under one formula, and 121 horses using the
other. (Id.) According to the Report, "an AML
of 121 adult wild horses is the maximum No. that can be
maintained without damage to the range and to achieve a
thriving ecological balance." (Id. at 3). Based
on its recalculations, BLM determined reestablishing the AML
was not required because the "calculation was well
within the previous AML and accomplished what the HMAP
intended." (Id. at 3; see also Doc. 14-4 at
¶ 17, Bertola Decl). BLM obtained public comment after
establishing the AML. (Doc. 6-16). There is no Record of
Decision associated with the Report nor did BLM issue any HMA
Evaluation Report. (See Doc. 6-10). BLM ultimately withdrew
the Report from its national register for NEPA documents.
(Doc. 16-3 at 2).
spring of 2018, the wild horse population on the Range
remained above the 2009 AML at 154. (Doc. 13-1 at Bates No.,
84102). So, on January 14, 2018, BLM issued the 2018 PMWHR
Bait/Water Trapping Gather and Fertility Control Preliminary
Environmental Assessment (2018 PEA), which tiers to the 2009
HMAP, for public comment. (Doc. 13-1 at Bates No. 98-160).
2018 PEA, BLM found that the horse population "is beyond
the capacity of the range" and has resulted in continued
degradation of the Range. (Doc. 13-1 at Bates No. 102-103).
BLM identified a need to "protect rangeland resources
and prevent unnecessary or undue degradation of public lands
associated with excess wild horses within the [Range] and use
of rangeland resources by wild horses." (Doc. 13-1 at
Bates No. 106). BLM determined that to accomplish these
goals, the wild horse population needed to be reduced and
"a thriving natural ecological balance and multiple use
relationship" needed to be restored. (Id.)
identified and considered a proposed action, one action
alternative, and a no-action alternative to achieve these
objectives. (Id. at Bates No. 108-113). In relevant
part, under the proposed action, BLM would selectively remove
seventeen wild horses based on a tiered approach that
included wild horses that are second and third foals or more
of a given mare. (Doc. 13-1 at Bates No. 108). The proposed
action would "primarily consist of removing excess wild
horses 1-4 years old." (Id.) BLM would also
remove wild horses foaled as a result of inbreeding, and wild
horses with "injuries or health concerns"
regardless of age. (Id.) Under Alternative A, BLM
would conduct annual incremental gathers of up to 20 excess
horses by selectively removing them in accordance with the
2009 HMAP, beginning in 2018. (Id. at Bates No. 112)
And under the no-action alternative, BLM would do nothing.
organizations and individuals provided comments and
objections to the 2018 PEA during the comment period. (Doc.
13-1 at Bates No. 2072-2406). In its comments, The Cloud
Foundation (TCF) noted its support for the removal of two
inbred horses but pointed out that BLM's population
figures and projections in the 2018 PEA were based on
incorrect data. (Id. at Bates No. 2072-73).
Specifically, TCF stated that: (1) the Pryor Herd did not
contain as many horses as BLM calculated; (2) BLM's 8%
recruitment percentage is based on erroneous assumptions; (3)
where BLM asserted that 10-12 foals were projected for 2017
and 2018, only 5 foals actually survived in 2017; and (4)
horse deaths were outnumbering births so the birth rate is at
less than half of the mortality rate. (Id.). Taking
these errors into consideration, TCF suggested the AML for
the decision could be and should be higher. (Id. at
2074). TCF also stated that because BLM's proposal did
not take into account the matrilineal and patrilineal lines
of each animal, wild horse bloodlines could accidentally be
eliminated, an important consideration in light of the small
herd size and the rare markers remaining in the Pryor Herd.
(Id. at Bates No. 2074-76). Finally, TCF suggested
that BLM should focus not on how many progeny a mare has
foaled historically, but how many foals actually remain
within the Pryor Herd in order to adequately preserve genetic
lines and characteristics. (Id.).
Pryor Mountain Wild Mustang Center also commented on the 2018
PEA, noting that BLM's historic management actions,
combined with natural loss, were starting to result in a
negative population effect given the Pryor Herd's
declining growth rate observed in the last two years. (Doc.
13-1 at Bates No. 2106-2019). The Center warned that this
trend will continue in the near future due to decreased
foaling rates along with significant No. of older individuals
that are reaching the end of their lives. (Id.) As a
result, the Center recommended that "gathers be used in
combination with fertility to slowly help bring the herd
toward the AML" and that the removal criteria "be
heavily modified in order to be consistent with the 2009
HMAP's goal of maintaining genetic diversity through
management based on kinship." (Id. at Bates No.
2107). The Center also advised that at least two offspring
are necessary to preserve narrow genetic lines.
August 3, 2018, BLM issued its 2018 Final EA, Decision
Record, and Finding of No. Significant Impact
("FONSI"). (Doc. 6-14). According to the Decision
Record, BLM decided to adopt the proposed action and remove
the seventeen selected wild horses aged 1-4 from the Pryor
Herd and to implement the proposed modifications to the
on-going fertility program. (Id. at 4). The Final EA
adopted TCF's adjusted population No. of 154, but
rejected TCF's and the Center's alternatives, stating
that the alternatives "would continue to grow the
population and not meet the purpose and need of the EA."
(Doc. 13-1 at Bates No. 18).
notable departure from the 2018 PEA, BLM decided that
"each active breeding mare would have at least one
progeny to carry forward into the next generation," (id.
at Bates No. 12), as opposed to the tiered method in the 2018
PEA, which included two and three foals per mare. (Doc. 13-1
at Bates No. 108). BLM stated that this particular proposed
action "would specifically include managing to maintain
rare or unusual colors ... and managing to prevent bloodlines
from being eliminated." (Id. at Bates No. 12).
The FONSI "determined that the environmental impacts
associated with the Proposed Action are not significant
individually or cumulatively and will not significantly
affect the human environment." (Doc. 13-1, Bates No.
85). The Decision Record provided for removal operations to
begin in September, 2018. (Id. at Bates No. 84).
provided the following table in the 2018 Final EA identifying
the wild horses slotted ...