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Kathrens v. Zinke

United States District Court, D. Montana, Billings Division

August 31, 2018

GINGER KATHRENS, and THE CLOUD FOUNDATION, Plaintiffs,
v.
RYAN ZINKE, Secretary Department of the Interior, et al, Defendants.

          ORDER

          SUSAN P. WATTERS UNITED STATES DISTRICT JUDGE

         On 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.

         I. Background

         Established 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)

         In 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. Id.

         As part 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.

         The 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 horse;"
- "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 Horses."

(Id. at Bates No. 1595-96).

         The 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).

         Since 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).

         On 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).

         In July 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.

         Five 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).

         In the 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).

         In the 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.)

         BLM 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. (Id.)

         Various 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[1] 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.).

         The 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. (Id.)

         On 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).

         In a 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).

         BLM provided the following table in the 2018 Final EA identifying the wild horses slotted ...


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