                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


 AMERICAN WILD HORSE CAMPAIGN, et
 al.,
                                                     Civil Action No. 18-1529 (BAH)
                        Plaintiffs,
                                                     Chief Judge Beryl A. Howell
                        v.

 DAVID BERNHARDT, et al.,

                        Defendants.

                                  MEMORANDUM OPINION

       When adopting the Wild Free-Roaming Horses and Burros Act (“WHBA”) in 1971,

Congress recognized that “wild free-roaming horses . . . are living symbols of the historic and

pioneer spirit of the West” and that these animals “contribute to the diversity of life forms within

the Nation and enrich the lives of the American people.” 16 U.S.C. § 1331. Yet, if not properly

managed, wild horses can be destructive to the public lands they now inhabit. Wild free-roaming

horses can consume resources necessary to the survival of native, including endangered, species,

and can trample whatever is found underfoot, including indigenous plants and cultural artifacts.

Unconcerned by the boundary lines drawn on maps, wild horses can stumble onto highways and

into other dangerous areas, causing sometimes fatal injury to themselves or others. Additionally,

when herds reach unsustainable population levels, wild horses may become malnourished and

vulnerable to disease, especially during increasingly common periods of drought on Western

public lands. These competing considerations frequently require removal of wild horses from




                                                 1
parts of the public lands so that the horses may be, inter alia, adopted or relocated to pastures in

the Midwest.1

         The Bureau of Land Management (“BLM”) believes that removal of wild horses from an

area of public lands in Nevada known as the “Caliente Complex” is currently necessary. BLM’s

position is not new. In 2008, BLM issued a land use plan that determined the Caliente Complex

would not be managed for wild horses. Then, in 2009, BLM conducted a gather (i.e., an effort to

round-up, capture, and relocate wild horses) intended to remove all wild horses from the

Complex. That effort, however, was not entirely successful, and today an estimated 1,744 wild

horses are found in the Complex. Thus, in 2018 BLM determined that additional gathers are

necessary.

          The plaintiffs, three non-profit organizations and an individual concerned about the

health and welfare of these wild horses, see Compl. ¶¶ 6–20, ECF No. 1, object to the new

proposed gathers of wild horses in the Caliente Complex. Yet, the plaintiffs never challenged

the 2008 decision to manage the Caliente Complex for no horses nor the gather conducted in

2009. Even now, the plaintiffs do not argue that the current wild horse population is sustainable


1
          The WHBA prescribes what the government may do with removed horses. See 16 U.S.C. § 1333(b)(2).
“All young and healthy horses” that are removed “are made available for adoption and transferred to private owners
after the owners have demonstrated that the horses or burros will be treated humanely.” Fund for Animals, Inc. v.
U.S. Bureau of Land Mgmt., 460 F.3d 13, 16 n.1 (D.C. Cir. 2006) (citing 16 U.S.C. § 1333(b)(2)(B), (c)). “[O]ld,
sick, or lame animals” are “destroyed in the most humane manner possible.” 16 U.S.C. § 1333(b)(2)(A). The
WHBA also permits the government to “destroy[]” young and healthy “excess wild free-roaming horses . . . for
which an adoption demand by qualified individuals does not exist.” Id. § 1333(b)(2)(C). “Congress,” however,
“has never appropriated funds for extermination, as opposed to ongoing maintenance, of excess horses even if not
adopted.” In Def. of Animals v. U.S. Dep’t of the Interior, 751 F.3d 1054, 1059 n.3 (9th Cir. 2014) (internal
quotation marks omitted) (quoting In Def. of Animals v. U.S. Dep’t of the Interior, 909 F. Supp. 2d 1178, 1190 (E.D.
Cal. 2012)); see, e.g., Pub. L. No. 116-94, 133 Stat. 2534, 2747 (2019) (“Amounts appropriated by this Act shall not
be available for . . . (1) the destruction of any healthy, unadopted, and wild horse or burro under the jurisdiction of
the Secretary concerned (including a contractor); or (2) the sale of a wild horse or burro that results in the
destruction of the wild horse or burro for processing into a commercial product.”). Thus, “[i]f not adopted, [the
government] transfers the healthy excess animals to private long-term holding facilities, which consist of grassland
pastures in the Midwest averaging approximately 10-11 acres per horse.” In Def. of Animals, 751 F.3d at 1060 n.6;
see Administrative Record (“AR”) 10 (“All of the animals gathered [will] be removed and transported to
[government] holding facilities where they [will] be prepared for adoption and/or sale to qualified individuals or
maintained in off-range holding facilities . . . .”).

                                                          2
or that agency action is unnecessary. See Pls.’ Combined Opp’n Defs.’ Cross-Mot. & Reply

Supp. Pls.’ Mot. (“Pls.’ Opp’n”) at 2–3, ECF No. 25. Nonetheless, the plaintiffs challenge

BLM’s 2018 decision that removal of all wild horses from the Caliente Complex is currently

necessary, and belatedly challenge BLM’s 2008 decision to manage the Caliente Complex for no

horses. Put another way, the plaintiffs have initiated this lawsuit ten years after BLM made the

key determination that the Caliente Complex cannot support wild horses. They assert violations

of the WHBA, the National Environmental Policy Act (“NEPA”), and the Administrative

Procedure Act (“APA”).

         Pending before the Court is the plaintiffs’ motion for summary judgment, Mot. Summ. J.

(“Pls.’ Mot.”), ECF No. 18, as well as the defendants’ cross-motion, Defs.’ Cross-Mot. Summ. J.

& Opp’n Pls.’ Mot. (“Defs.’ Opp’n”), ECF No. 20. The plaintiffs’ concern for wild horses

appears to be heartfelt, but the time limit for challenging BLM’s 2008 decision expired years

ago, and in 2018, BLM complied with the WHBA and NEPA in determining that removal of all

horses in the Caliente Complex is currently necessary. Thus, for the reasons detailed below, the

plaintiffs’ motion for summary judgment is denied, and the defendants’ cross-motion is granted.2

I.       BACKGROUND

         The statutory framework governing the plaintiffs’ claims is discussed first, followed by

the details of the BLM actions at issue in this case.




2
          The plaintiffs “request[ed] an oral hearing on [their] motion, should the Court deem it helpful for resolution
of this case.” Pls.’ Mot. Given the voluminous record and thorough briefing, a hearing is unnecessary. See LCvR
7(f) (authorizing oral hearings at “the discretion of the Court”).

                                                           3
       A.      Statutory and Regulatory Framework

               1.      The Wild Free-Roaming Horses and Burros Act

       In 1971, Congress enacted the WHBA to “protect[]” wild horses “from capture, branding,

harassment, or death.” 16 U.S.C. § 1331. To accomplish this goal, Congress declared that wild

horses were “to be considered in the area where presently found, as an integral part of the natural

system of the public lands.” Id. Further, Congress tasked the Secretary of the Interior with

“protect[ing] and manag[ing] wild free-roaming horses” found on public lands administered by

BLM, authorizing the Secretary, inter alia, to “designate and maintain specific ranges on public

lands as sanctuaries for their protection and preservation.” Id. § 1333(a).

       “By 1978, however, Congress recognized that circumstances had changed.” Am. Horse

Prot. Ass’n, Inc. v. Watt, 694 F.2d 1310, 1316 (D.C. Cir. 1982) (Ginsburg, Ruth B., J.). The

1971 act was so successful that “the situation . . . appear[ed] to have reversed, and action [was]

needed to prevent a successful program from exceeding its goals and causing animal habitat

destruction.” Id. (internal quotation mark omitted) (quoting H.R. REP. NO. 95-1122 (1978)).

Therefore, “Congress struck a new balance . . . between protecting wild horses and competing

interests in the resources of the public ranges,” and “judged that prompt action was needed to

redress the imbalance that had developed.” Id. As the D.C. Circuit has explained, “[t]he main

thrust of the 1978 amendments [was] to cut back on the protection the Act affords wild horses,

and to reemphasize other uses of the natural resources wild horses consume.” Id.

       The WHBA continues to require that the Secretary of the Interior—here, acting through

BLM—to conduct wild horse “management activities” “at the minimal feasible level,” i.e., with

as little disruption in the horses’ lives as possible. 16 U.S.C. § 1333(a). The law also now

provides, though, that “[t]he Secretary shall manage wild free-roaming horses and burros in a



                                                 4
manner that is designed to achieve and maintain a thriving natural ecological balance on the

public lands.” Id. “Where the Secretary determines . . . that an overpopulation exists on a given

area of the public lands and that action is necessary to remove excess animals,” the Secretary

must “immediately remove excess animals from the range so as to achieve appropriate

management levels.” Id. § 1333(b)(2).

       To carry out its duty to manage the wild horses on the public lands under its control,

BLM has created two types of areas: “herd management areas” (“HMAs”) and “herd areas”

(“HAs”). HMAs are managed for wild horses. “In each [HMA], the Bureau determines an

‘appropriate management level’ (‘AML’) for the wild horse and burro populations.” Fund for

Animals, Inc. v. U.S. Bureau of Land Mgmt., 460 F.3d 13, 15 (D.C. Cir. 2006). BLM defines

AML “as ‘the median number of adult wild horses or burros determined through BLM’s

planning process to be consistent with the objective of achieving and maintaining a thriving

ecological balance and multiple-use relationship in a particular area.’” Id. By contrast, HAs are

areas not managed for wild horses. See 43 C.F.R. § 4710.4 (“Management of wild horses and

burros shall be undertaken with the objective of limiting the animals’ distribution to herd

areas.”). Consequently, “[t]he AML of a given HA is typically zero.” W. Rangeland

Conservation Ass’n v. Zinke, 265 F. Supp. 3d 1267, 1274 n.5 (D. Utah 2017).

               2.      The National Environmental Policy Act

       NEPA represents “a broad national commitment to protecting and promoting

environmental quality.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348 (1989)

(citing 42 U.S.C. § 4331). To this end, NEPA was created, in part, to “establish a set of ‘action

forcing’ procedures requiring an environmental impact statement on any proposed major Federal

action which could significantly affect the quality of the environment.” S. REP. NO. 94-152, at 3



                                                 5
(1975) (recounting NEPA’s “three major purposes” as part of discussion recommending NEPA

amendment). Among these procedures, NEPA requires federal agencies, “to the fullest extent

possible,” to prepare and include an Environmental Impact Statement (“EIS”) in “every

recommendation or report on proposals for legislation and other major Federal actions

significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C); see also

Winter v. NRDC, 555 U.S. 7, 15–16 (2008).3 As part of this process, an agency must consider

multiple factors, including “the environmental impact of the proposed action,” “any adverse

environmental effects which cannot be avoided should the proposal be implemented,” and

“alternatives to the proposed action.” 42 U.S.C. § 4332(2)(C)(i)–(iii). “The statutory

requirement that a federal agency contemplating a major action prepare such an [EIS] serves

NEPA’s ‘action-forcing’ purpose in two important respects,” Robertson, 490 U.S. at 349, by (1)

“ensur[ing] that the agency, in reaching its decision, will have available, and will carefully

consider, detailed information concerning significant environmental impacts” and (2)

“guarantee[ing] that the relevant information will be made available to the larger audience that

may also play a role in both the decisionmaking process and the implementation of that

decision.” Blue Ridge Envtl. Def. League v. NRC, 716 F.3d 183, 188 (D.C. Cir. 2013) (quoting

Robertson, 490 U.S. at 349),

        “The Council of Environmental Quality (CEQ), established by NEPA with authority to

issue regulations interpreting it, has promulgated regulations to guide federal agencies in

determining what actions are subject to” the EIS requirement. Dep’t of Transp. v. Pub. Citizen,



3
          “Human environment” has been “interpreted comprehensively to include the natural and physical
environment and the relationship of people with that environment.” 40 C.F.R. § 1508.14. “In the context of wild
horse gathers,” courts have “interpreted ‘human environment’ to encompass ‘not solely [the environmental impact]
on the rangelands, but [the environmental impact] on the horses as well.’” In Def. of Animals v. U.S. Dep’t of the
Interior, 751 F.3d 1054, 1067 n.22 (9th Cir. 2014) (alterations in original) (quoting Am. Horse Prot. Ass’n v.
Andrus, 608 F.2d 811, 814 (9th Cir. 1979)).

                                                         6
541 U.S. 752, 757 (2004) (citing 40 C.F.R. § 1500.3). Under these regulations, an agency may

prepare “a more limited document, an Environmental Assessment (EA), if the agency’s proposed

action neither is categorically excluded from the requirement to produce an EIS nor would

clearly require the production of an EIS.” Id. (citing 40 C.F.R. § 1501.4(a), (b)). An EA is a

“‘concise public document’ that ‘[b]riefly provide[s] sufficient evidence and analysis for

determining whether to prepare an [EIS].’” Id. (alterations in original) (quoting 40 C.F.R.

§ 1508.9(a)). If, after conducting an EA, the agency determines that an EIS is not required under

the applicable regulations, “it must issue a ‘finding of no significant impact’ (FONSI), which

briefly presents the reasons why the proposed agency action will not have a significant impact on

the human environment.” Id. at 757–58 (citing 40 C.F.R. §§ 1501.4(e), 1508.13).

       Notably, NEPA is “‘essentially procedural,’” intended only “to ensure ‘fully informed

and well-considered decision[s]’ by federal agencies.” Del. Riverkeeper Network v. FERC, 753

F.3d 1304, 1309–10 (D.C. Cir. 2014) (alteration in original) (quoting Vt. Yankee Nuclear Power

Corp. v. NRDC, 435 U.S. 519, 558 (1978)). In other words, NEPA “does not mandate particular

results in order to accomplish its ends,” id. at 1310 (internal quotation mark omitted) (quoting

Pub. Citizen, 541 U.S. at 756–57), “require agencies to elevate environmental concerns over

other appropriate considerations,” WildEarth Guardians v. Jewell, 738 F.3d 298, 303 (D.C. Cir.

2013) (quoting Balt. Gas & Elec. Co. v. NRDC, 462 U.S. 87, 97 (1983)), or necessarily require

“the best decision,” id. (internal quotation mark omitted) (quoting New York v. NRC, 681 F.3d

471, 476 (D.C. Cir. 2012)); see also Sierra Club v. FERC, 827 F.3d 59, 68 (D.C. Cir. 2016) (“As

a procedural statute, NEPA does not mandate any particular outcome.”). “NEPA is ‘not a

suitable vehicle’ for airing grievances about the substantive policies adopted by an agency, as

‘NEPA was not intended to resolve fundamental policy disputes.’” Grunewald v. Jarvis, 776



                                                 7
F.3d 893, 903 (D.C. Cir. 2015) (quoting Found. on Econ. Trends v. Lyng, 817 F.2d 882, 886

(D.C. Cir. 1987)).

         B.       Factual Background

         This case concerns wild horses located in the Caliente Complex, an area of public lands

located near the town of Caliente, Nevada. AR 3.4 The Complex “encompasses approximately

911,892 acres,” id., currently managed by BLM as nine separate HAs, AR 4. The Complex is

itself part of a larger area of public (and small amount of private) lands known as the “Ely

District,” which contains 13,927,352 acres. AR 1387.

         The history of wild horse management in the Caliente Complex dates back at least to

1979. At that time, BLM managed the nine areas of the Caliente Complex as HMAs rather than

as HAs, and the wild horse population in the Complex was estimated to be 1,011 horses. See AR

4917. BLM determined, however, that “[l]ack of adequate watering facilities” in the Complex

“[was] a problem for some of the wild horses,” AR 4922, and therefore instituted a plan to

reduce wild horse population to 497 by 1980, AR 4814. Again in 1999, BLM determined that

wild horses were overusing resources in the Caliente Complex’s “Mormon Mountains” HMA, so

BLM set the Mormon Mountains AML at zero horses and converted the area into an HA, AR

Suppl. at 6, leaving eight remaining HMAs in the Complex.

         In 2003, BLM made the first in a series of decisions leading to the current challenge.

That year, BLM issued a Notice of Wild Horse Management Decision and FONSI (collectively,


4
          The defendants filed a certified index of the administrative record, in accordance with Local Civil Rule
7(n), see Notice of Filing the Certified List of AR Contents, ECF No. 17, and then supplemented the record with a
single document, see Min. Order (May 28, 2019) (granting the defendants’ request to supplement record, as to which
the plaintiffs took no position), bringing the administrative record to a total of 10,237 pages. Consistent with Local
Civil Rule 7(n), the portions of the administrative record cited or otherwise relied upon in the parties’ briefing have
been separately docketed. See J.A. of AR, ECF No. 31. The pages of the joint appendix were not separately
numbered, so “AR” citations refer to the page numbers of both the Joint Appendix and the full, undocketed
administrative record, except that the supplemental document was not given “AR” page numbers and is thus cited as
a stand-alone document. See AR Suppl., ECF No. 19-2.

                                                          8
“2003 Management Decision”) that again lowered AMLs in the Caliente Complex. AR 5836,

5841. In lowering the AMLs, the EA that accompanied the 2003 Management Decision

identified suitability for wild horses as a “primary concern” in the Caliente Complex. AR 5859.

The Caliente Complex is described as a region “where water sources are limited and

unpredictable,” “forage productivity varies wildly among years,” and “[t]he extreme climate,

especially harsh temperatures in the summer[,]” can “create resource issues as well as animal

humanity issues.” Id. Consequently, the 2003 Management Decision determined that all but one

of the Caliente Complex’s remaining HMAs should be managed for zero horses. AR 5840–41.

At the same time, though, the 2003 Management Decision concluded that “[t]he decision to not

manage for wild horses . . . should be a land use plan decision.” AR 5841. Accordingly, the

2003 Management Decision set nominal AMLs for the Complex HMAs rather than lower the

AMLs all the way down to zero, reserving the latter action for a later date. See id. The plaintiffs

did not challenge the 2003 Management Decision.

       In 2003, BLM also began work on “a land use plan—what BLM regulations call a

‘resource management plan’ [(‘RMP’)],” Norton v. S. Utah Wilderness All., 542 U.S. 55, 59

(2004)—for the entire Ely District, including the Caliente Complex. In accordance with the

2003 Management Decision, BLM made assessment of the AMLs in the Caliente Complex part

of the land use planning process. See AR 2814. Following years of review, analysis, and public

engagement, see AR 1393–94, 2681–82, BLM completed the RMP for the Ely District, issuing

the Final EIS (“2007 EIS”) in 2007, AR 2666, and the Record of Decision and Approved RMP

(collectively, “2008 RMP”) in 2008, AR 1380. As foreshadowed by the 2003 Management

Decision, the 2008 RMP converted the eight remaining HMAs in the Caliente Complex into HAs




                                                 9
(“2008 RMP HA determination”). AR 1451. By so doing, the 2008 RMP set an effective AML

of zero for the entire Complex. See 43 C.F.R. § 4710.4.5

        In 2009, BLM implemented the 2008 RMP HA determination. After completing an

environmental assessment, BLM concluded that the presence of wild horses was inconsistent

with achieving and maintaining a thriving ecological balance in the Caliente Complex. AR

5552. Accordingly, BLM decided to conduct a gather (“2009 Gather Decision”) intended to

remove all wild horses from the Complex. See id. The plaintiffs did not challenge the 2009

Gather Decision and, before this suit, had never challenged the 2008 RMP determination to

convert the remaining HMAs in the Caliente Complex into HAs.

        Although BLM removed 308 wild horses from the Caliente Complex in 2009, see AR

7293–94, by 2017, BLM estimated that 1,744 wild horses remained in the Complex, AR 111,

and, further, that if no action were taken, the wild horse population in the Complex would

increase by 20% each year, AR 113. In light of this overpopulation of wild horses, BLM issued

a preliminary EA in November 2017 for a plan to conduct a series of gathers “to protect wild

horse health, reduce and mitigate public safety concerns caused by wild horses residing along

major roadways within and outside HA boundaries,” and “prevent further damage to the range

resulting from the . . . overpopulation while achieving and maintaining a thriving natural

ecological balance and multiple-use relationship within the area.” AR 104, 111. After receiving

and responding to public comments concerning the draft EA, see AR 82–100, BLM issued a

final EA, AR 1, in April 2018, followed shortly thereafter by the issuance of a FONSI and

Record of Decision (collectively, “2018 Gather Decision”) on April 27, 2018 authorizing the



5
         The parties do not dispute that converting an HMA into an HA is equivalent to setting an AML of zero for
the purposes of BLM’s relevant obligations under the WHBA and NEPA. See Defs.’ Opp’n at 41 n.22; Pls.’ Opp’n
at 13.

                                                       10
proposed gathers, AR 101, 103. In the 2018 Gather Decision, BLM concluded that removal of

all the wild horses within the Caliente Complex is “necessary to achieve a thriving natural

ecological balance” in that area. AR 103.

        Pursuant to the 2018 Gather Decision, BLM plans to conduct an initial gather to remove

most of the wild horses from the Caliente Complex, and then to conduct additional periodic

gathers over the subsequent ten years to remove any wild horses that remain. Id. Although this

plan will, if successful, ultimately result in the removal of all wild horses from the Caliente

Complex, wild horse herds will continue to exist in six other HMAs within the larger Ely

District. See AR 3502–03. BLM has not yet set a date for the 2018 Gather Decision’s initial

gather. Defs.’ Opp’n at 9.

        C.      Procedural Background

        Approximately ten years after BLM issued the 2008 RMP and two months after BLM

issued the 2018 Gather Decision, the plaintiffs initiated this suit on June 27, 2018, asserting three

claims for relief: Claim I alleges violations of the WHBA, Compl. ¶¶ 79–85; Claim II alleges

NEPA violations, id. ¶¶ 86–99; and Claim III alleges “violations of the APA, through the WHA

and NEPA,” id. ¶ 100; see id. ¶¶ 100–02. These claims challenge the validity of both the 2008

RMP and the 2018 Gather Decision and seek relief in the form of an order, inter alia, “[v]acating

the 2018 [Gather Decision] and the relevant portions of the 2008 Final RMP, i.e., those that

pertain to the decision, implemented through the 2018 [Gather Decision], to remove all wild

horses from the Caliente Complex and to set the wild horse AML for these areas at zero.” Id. at

37 (prayer for relief).

        In accordance with the parties’ proposed schedule, a scheduling order was entered for the

parties’ filing of cross-motions for summary judgment, see Min. Order (Sept. 24, 2018), and



                                                 11
after extensions granted at the parties’ requests, briefing was completed on October 25, 2019,

with the AR joint appendix filed on November 6, 2019. The parties’ cross-motions for summary

judgment are now ripe for resolution.

II.    LEGAL STANDARD

       Both the WHBA and NEPA lack a specific statutory review provision and, consequently,

challenges alleging violations of these statutes are brought pursuant to the APA. Fund for

Animals, Inc. v. U.S. Bureau of Land Mgmt., 460 F.3d 13, 18 (D.C. Cir. 2006); see also, e.g.,

Indian River Cty. v. U.S. Dep’t of Transp., 945 F.3d 515, 520 (D.C. Cir. 2019) (reviewing NEPA

challenge brought pursuant to the APA). Under the APA, agency action must be held “unlawful

and set aside” when it is “arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law.” 5 U.S.C. § 706(2)(A). Agency action is arbitrary and capricious “if the

agency has relied on factors which Congress has not intended it to consider, entirely failed to

consider an important aspect of the problem, [or] offered an explanation for its decision that runs

counter to the evidence before the agency.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto.

Ins. Co., 463 U.S. 29, 43 (1983).

       In APA cases involving cross-motions for summary judgment, “the district judge sits as

an appellate tribunal. The entire case on review is a question of law.” Oceana, Inc. v. Locke,

670 F.3d 1238, 1240 (D.C. Cir. 2011) (internal quotation mark omitted) (quoting Am.

Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001)). Accordingly, this Court

need not and ought not engage in lengthy fact finding, since “[g]enerally speaking, district courts

reviewing agency action under the APA’s arbitrary and capricious standard do not resolve

factual issues, but operate instead as appellate courts resolving legal questions.” James Madison

Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1096 (D.C. Cir. 1996); see also Lacson v. U.S. Dep’t of



                                                 12
Homeland Sec., 726 F.3d 170, 171 (D.C. Cir. 2013) (noting, in APA case, that “determining the

facts is generally the agency’s responsibility, not ours”).

III.   DISCUSSION

       The defendants posit that assessment of the merits of the plaintiffs’ claims is entirely

precluded because the plaintiffs lack standing and their claims are untimely. The plaintiffs, for

their part, vigorously contest these jurisdictional obstacles and seek a determination that both the

2008 RMP and the 2018 Gather Decision violate the WHBA and NEPA. The defendants’

threshold jurisdictional challenges are addressed first, followed by review of what remains of the

plaintiffs’ WHBA and NEPA claims.

       A.      Standing

       “The Constitution limits the ‘judicial Power of the United States’ to ‘Cases’ or

‘Controversies,’” Twin Rivers Paper Co. v. SEC, 934 F.3d 607, 612 (D.C. Cir. 2019) (quoting

U.S. CONST. art. III, §§ 1–2), “and the requirement of standing is ‘rooted in the traditional

understanding of a case or controversy,’” id. (quoting Spokeo, Inc. v. Robins, 136 S. Ct. 1540,

1547 (2016)). To establish constitutional standing, a “plaintiff must show (1) an ‘injury in fact,’

(2) a sufficient ‘causal connection between the injury and the conduct complained of,’ and (3) a

‘likel[lihood]’ the injury ‘will be redressed by a favorable decision.’” Susan B. Anthony List v.

Driehaus, 573 U.S. 149, 157–58 (2014) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–

61 (1992)); see also Narragansett Indian Tribal Historic Pres. Office v. FERC, No. 19-1009,

2020 WL 593866, at *2 (D.C. Cir. Feb. 7, 2020) (same). “The party invoking federal

jurisdiction bears the burden of establishing these elements.” Lujan, 504 U.S. at 561; see also

Twin Rivers Paper Co., 934 F.3d at 613 (same).




                                                 13
        In cases such as this one where federal action affects wildlife, “[i]t is clear that the person

who observes . . . a particular animal threatened by a federal decision is facing perceptible harm,

since the very subject of his interest will no longer exist.” Lujan, 504 U.S. at 566. Nevertheless,

a plaintiff must provide more than “‘some day’ intentions—without any description of concrete

plans, or indeed even any specification of when the some day will be—[to] support a finding of

the ‘actual or imminent’ injury that [the Supreme Court’s] cases require.” Id. at 564. “[E]ach

element of Article III standing ‘must be supported in the same way as any other matter on which

the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at

the successive stages of litigation.’” Bennett v. Spear, 520 U.S. 154, 167–68 (1997) (quoting

Lujan, 504 U.S. at 561). “[T]o survive a motion for summary judgment,” a plaintiff may

establish standing by affidavit. Id. at 168.

        The defendants assert that the plaintiffs “have not shown that [they] will suffer an ‘injury-

in-fact’ that is ‘actual or imminent,’” Defs.’ Opp’n at 11 (quoting Nat’l Ass’n of Home Builders

v. EPA, 667 F.3d 6, 12 (D.C. Cir. 2011)), because “none of Plaintiffs’ declarants express

‘concrete’ plans to visit the Complex in the future,” id. “The declaration of [plaintiff] Laura

Cunningham,” the defendants acknowledge, “gets the closest” to satisfying the relevant standard,

as Cunningham claims “that she ‘has concrete plans to return to the areas encompassed by the

Caliente Complex in the near future.’” Id. (quoting Decl. of Laura Cunningham ¶ 6, ECF No.

18-2). Nevertheless, the defendants contend that Cunningham’s declaration falls short because it

fails to “provid[e] any further detail on when those concrete plans are for.” Id. (emphasis in

original).

        In response to the defendants’ assertion, the plaintiffs have provided a supplemental

declaration from Cunningham “clarifying her travel plans.” Pls.’ Opp’n at 38. Cunningham



                                                  14
identifies a “camp and hike” she planned to take “at the end of August 2019” in the “Clover

Mountain Wilderness Area . . . adjacent to the public lands that comprise the Caliente Complex,”

and she states that “[o]n [her] way to the Wilderness Area,” she intended to “visit the Caliente

Complex to view and photograph the wildlife that reside there, including the wild horses that

[BLM] intends to permanently eliminate from these public lands.” Suppl. Decl. of Laura

Cunningham ¶ 2, ECF No. 25-1.6 Notably, in their reply the defendants raise no argument that

Cunningham’s supplemental declaration fails to satisfy the relevant standard, and although this

Court has an “independent obligation to assure [itself] that standing exists,” Exelon Corp. v.

FERC, 911 F.3d 1236, 1240 (D.C. Cir. 2018) (internal quotation marks omitted) (quoting

Summers v. Earth Island Inst., 555 U.S. 488, 499 (2009)), the defendants’ silence underscores

that Cunningham does, indeed, have standing. Given this conclusion, whether any other plaintiff

has standing need not be considered. See Am. Anti-Vivisection Soc’y v. U.S. Dep’t of Agric., 946

F.3d 615, 619–20 (D.C. Cir. 2020) (noting that “where parties seek the same relief,” “only one

party” is required “to have standing”).

         Accordingly, the defendants’ challenge to the plaintiffs’ standing is rejected.

         B.       Timeliness

         “Unless another statute provides otherwise, civil claims against the United States—

including those brought pursuant to the APA—are subject to the statute of limitations contained

in 28 U.S.C. § 2401, which allows for civil actions against the United States so long as ‘the

complaint is filed within six years after the right of action first accrues.’” Mendoza v. Perez, 754

F.3d 1002, 1018 (D.C. Cir. 2014) (quoting 28 U.S.C. § 2401). As the D.C. Circuit has “long

held,” § 2401’s six-year statute of limitations “‘creates a jurisdictional condition attached to the


6
         That August 2019 passed while the parties briefed this matter is of no moment, as “standing is assessed at
the time of filing.” Barker v. Conroy, 921 F.3d 1118, 1125 (D.C. Cir. 2019).

                                                         15
government’s waiver of sovereign immunity.’” Id. (quoting P & V Enters. v. U.S. Army Corps.

of Eng’rs, 516 F.3d 1021, 1026 (D.C. Cir. 2008)); see also Spannaus v. U.S. Dep’t of Justice,

824 F.2d 52, 55 (D.C. Cir. 1987) (same).

       The defendants argue that § 2401 bars the plaintiffs’ claims because the plaintiffs, who

brought suit in 2018, “challenge . . . a decision originally implemented over ten years ago”—i.e.,

the 2008 RMP HA determination for the Caliente Complex, which converted all HMAs in the

Complex into HAs and set an effective AML of zero wild horses for the Complex, and which

was implemented by the 2009 Gather Decision. Defs.’ Opp’n at 13. In the defendants’ view, the

plaintiffs’ untimeliness should bar not just the plaintiffs’ challenge to the 2008 RMP HA

determination, but also the plaintiffs’ challenge to the 2018 Gather Decision, because “at bottom,

all of [the plaintiffs’] claims are ultimately attacking the underlying decision to not manage the

Complex for horses.” Id. The plaintiffs counter that “a challenge to a site-specific decision”—

here, the 2018 Gather Decision—“may also legitimately challenge the programmatic plan”—

here, the 2008 RMP—“that ‘play[ed] a causal role’ in the development of the site-specific

action,” and thus their seemingly untimely challenge to the 2008 RMP may proceed through

their timely challenge to the 2018 Gather Decision. Pls.’ Opp’n at 42 n.14 (alteration in original)

(quoting Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 734 (1998)). Further, the plaintiffs

maintain that the 2018 Gather Decision was “not a mere implementation” of the 2008 RMP HA

determination, id. at 41 n.13, but rather was effectively a reassessment of that decision, rendering

challenges to it once again timely, see id.

       This dispute over the timeliness of the plaintiffs’ claims, in whole or part, raises three

distinct issues about (1) when the right of action to challenge the 2008 RMP HA determination

accrued; (2) whether BLM reopened the 2008 RMP HA determination when making the 2018



                                                 16
Gather Decision; and (3) whether the plaintiffs have raised a timely challenge to the 2018 Gather

Decision, even if a challenge to the 2008 RMP HA determination is time-barred. Each issue is

addressed in turn.7

                  1.       Accrual

                  a.       The Date of Accrual Turns on Whether the 2008 RMP HA
                           Determination Constituted Final Agency Action

         Ordinarily, a “right of action” under the APA “first accrues on the date of the final

agency action.” Wash. All. of Tech. Workers v. U.S. Dep’t of Homeland Sec., 892 F.3d 332, 342

(D.C. Cir. 2018) (internal quotation marks omitted) (quoting Harris v. FAA, 353 F.3d 1006, 1010

(D.C. Cir. 2004)). “[A] time limitation on petitions for judicial review,” however, “can run only

against challenges ripe for review.” Fed. Express Corp. v. Mineta, 373 F.3d 112, 119 (D.C. Cir.

2004) (internal quotation marks omitted) (quoting Balt. Gas & Elec. Co. v. ICC, 672 F.2d 146,

149 (D.C. Cir. 1982)).

         The defendants peg accrual of the limitations period for the 2008 RMP HA determination

to the issuance of the 2009 Gather Decision when “BLM’s decision to not manage the [Caliente]

Complex for wild horses” was first “implemented.” Defs.’ Reply at 2. The plaintiffs do not

contest that the 2008 RMP’s conversion of the Caliente Complex HMAs into HAs could have

been challenged as part of a suit challenging the 2009 Gather Decision. See Pls.’ Opp’n at 41–

42. Nonetheless, the plaintiffs press that their suit is timely because the 2018 Gather Decision is

also “a final agency action that itself is subject to judicial review,” id. at 41, and a plaintiff

challenging “a site-specific decision” may challenge “the programmatic plan that ‘play[ed] a



7
         The defendants argue, in the alternative, that the plaintiffs’ challenge is barred by laches. Defs.’ Opp’n at
13; Defs.’ Reply Supp. Defs.’ Cross-Mot. & Opp’n (“Defs.’ Reply”) at 2, ECF No. 30. This argument fails because,
“in face of a statute of limitations enacted by Congress, laches cannot be invoked to bar legal relief.” Petrella v.
Metro-Goldwyn-Mayer, Inc., 572 U.S. 663, 679 (2014).

                                                         17
causal role’ in the development of the site-specific action,” id. at 42 n.14 (alteration in original)

(quoting Ohio Forestry Ass’n, 523 U.S. at 734).

         The plaintiffs’ argument appears grounded in the text of 5 U.S.C. § 704, which authorizes

direct judicial review of “final agency action,” but permits review of “preliminary, procedural, or

intermediate agency action” only “on the review of the final agency action.” 5 U.S.C. § 704.8 In

the plaintiffs’ reasoning, § 704 allows for review of any “preliminary” agency action leading to a

challenged final action, and the 2008 RMP HA determination is reviewable now as a preliminary

step toward the 2018 Gather Decision. This analysis suffers from a fatal flaw. As explained

next, the 2008 RMP HA determination was not preliminary, but rather was itself final agency

action.9

                  b.       The 2008 RMP HA Determination was Final Agency Action

         “To be final, an [agency] action must (1) ‘mark[] the consummation of the agency’s

decisionmaking process’ and (2) be one by which ‘rights or obligations have been determined, or

from which legal consequences will flow.’” Am. Anti-Vivisection Soc'y v. USDA, 946 F.3d 615,

620 (D.C. Cir. 2020) (second alteration in original) (quoting Bennett v. Spear, 520 U.S. 154,

177–78 (1997)). These conditions—often referred to as the “Bennett prongs”—are addressed

seriatim.



8
          The relevant text of 5 U.S.C. § 704 reads as follows: “Agency action made reviewable by statute and final
agency action for which there is no other adequate remedy in a court are subject to judicial review. A preliminary,
procedural, or intermediate agency action or ruling not directly reviewable is subject to review on the review of the
final agency action.”
9
          The plaintiffs cite Ohio Forestry for the proposition that a programmatic plan may be challenged through
any site-specific implementation, regardless of the passage of time between the plan’s adoption and implementation.
See Pls.’ Opp’n at 42 n.14 (citing Ohio Forestry, 523 U.S. at 732–34). Ohio Forestry, however, merely held that a
challenge to a land use plan was not ripe until a site-specific action made the plaintiffs’ harm “more imminent and
more certain.” 523 U.S. at 734. Ohio Forestry said nothing about whether land use plans constitute “final” or
merely “preliminary” agency action, nor did the Supreme Court suggest that challenges to land use plans are
immune to statute-of-limitations defenses once finality and ripeness are established if the requisite limitations period
has lapsed. Thus, Ohio Forestry provides no authority for the plaintiffs’ theory that the statute of limitations may be
avoided here.

                                                          18
                       i.     Prong 1: The 2008 RMP HA Determination Consummated
                              BLM’s Decisionmaking Process

        “In evaluating the first Bennett prong,” a court must “consider[] whether the action is

‘informal, or only the ruling of a subordinate official, or tentative.’” Soundboard Ass’n v. FTC,

888 F.3d 1261, 1267 (D.C. Cir. 2018) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 151

(1967)). “The decisionmaking processes set out in an agency’s governing statutes and

regulations are key to determining whether an action . . . represents the culmination of that

agency’s consideration of an issue.” Id.

       Here, the conversion of the Caliente Complex HMAs into HAs was the product of a

lengthy decisionmaking process. As early as the 2003 Management Decision, BLM identified

that converting remaining HMAs in the Caliente Complex into HAs was under consideration.

See AR 5841. BLM determined, however, that pursuant to its regulations and its handbook, such

a conversion should only occur as part of a comprehensive land use plan. See id.; see also 43

C.F.R. § 4710.1 (“Management activities affecting wild horses and burros, including the

establishment of herd management areas, shall be in accordance with approved land use

plans . . . .”); U.S. BUREAU OF LAND MGMT., DEP’T OF THE INTERIOR, H-1601-1, LAND USE

PLANNING HANDBOOK, App. C at 7 (2005) [hereinafter BLM HANDBOOK] (explaining that “herd

management area designation” is a “land use plan decision[]” (capitalization altered)).

Consistent with this determination, BLM considered the conversion issue as part of its already-

ongoing effort to prepare an RMP for the Ely District, see AR 1393–94, relying on, inter alia,

“monitoring data, horse census data, emergency horse gather data, and input from the BLM

wildlife, range management, and wild horse specialists” that had been initially obtained and

considered as part of the AML evaluation made in the 2003 Management Decision, AR 5925;

see AR 3149–51. In 2005, BLM published a draft RMP and EIS, 70 Fed. Reg. 43,902 (July 29,

                                                19
2005), which was subject to a 120-day public comment period and addressed at public meetings

in six locations in Nevada, AR 2681–82. Then, in 2007, BLM published a proposed RMP and

EIS, AR 2666, which was subject to both a thirty-day protest period—during which plaintiff

Western Watersheds Project submitted comments concerning the HA conversions, Compl. ¶

11—and a sixty-day governor’s consistency review. AR 1382–83. After responding to

comments submitted during the thirty-day protest period, see AR 1394, BLM officially issued

the 2008 RMP, converting the eight remaining HMAs in the Caliente Complex into HAs, see AR

1380.

        Once BLM issued the 2008 RMP, this lengthy decisionmaking process was at an end.

See, e.g., Safari Club Int’l v. Jewell, 842 F.3d 1280, 1289 (D.C. Cir. 2016) (concluding that the

first Bennett prong was met when decision was “a considered determination, based on a thorough

examination of,” among other things, “recent biological studies [and] elephant population data”).

Indeed, the 2008 RMP’s Record of Decision explained the RMP was “the final decision for the

land use plan decisions described in the Approved Plan” and that “[n]o further administrative

remedies [were] available . . . for these land use plan decisions,” AR 1389, plainly indicating that

the decision would “not [be] revisited” as the “process move[d] forward,” U.S. Army Corps of

Eng’rs v. Hawkes Co., 136 S. Ct. 1807, 1814 (2016). BLM thus made clear that the 2008 RMP

was BLM’s “last word” about the AMLs in the Caliente Complex. Whitman v. Am. Trucking

Ass’ns, 531 U.S. 457, 478 (2001) (quoting Harrison v. PPG Indus., Inc., 446 U.S. 578, 586

(1980)); see, e.g., Sackett v. EPA, 566 U.S. 120, 127 (2012) (determining that consummation had

occurred when agency decision was “not subject to further agency review”).

        True, the 2008 RMP HA determination did not mark the end of BLM’s consideration of

issues related to the management of wild horses in the Caliente Complex. For instance, BLM



                                                20
remained free, in conformance with applicable statutes and regulations, to amend the 2008 RMP

and reverse its decision to manage the Caliente Complex for zero horses. See, e.g., 43 C.F.R.

§ 1610.5-3(c) (“If a proposed action is not in conformance[ with an approved RMP], . . .

consideration [of the proposed action] shall be through a plan amendment in accordance with the

provisions of . . . this title.”). Additionally, BLM retained discretion over how to implement the

2008 RMP and achieve the AML. See 16 U.S.C. § 1333(b)(1) (authorizing BLM to “achieve[]”

“appropriate management levels” “by the removal or destruction of excess animals, or other

options (such as sterilization, or natural controls on population levels)”). Yet, BLM’s ability to

amend the 2008 RMP did not vitiate the finality of the 2008 RMP HA determination, because

“[t]he mere possibility that an agency might reconsider . . . does not suffice to make an otherwise

final agency action nonfinal.” Nat’l Envtl. Dev. Ass’n’s Clean Air Project v. EPA, 752 F.3d 999,

1006 (D.C. Cir. 2014) (omission in original) (internal quotation mark omitted) (quoting Sackett,

566 U.S. at 127). Moreover, although BLM retained discretion over how to implement the 2008

RMP, courts have repeatedly recognized that agency action can be final as to one issue (here, the

Caliente Complex’s effective AML), even if other issues (such as how to achieve the AML)

remain open for later resolution. See, e.g., Rhea Lana, Inc. v. Dep’t of Labor, 824 F.3d 1023,

1032 (D.C. Cir. 2016) (observing that “[t]he possibility that the agency might not bring an action

for penalties . . . did not rob the administrative order in Sackett of its [finality]” (citing Sackett,

566 U.S. at 126–28)).

        In sum, the 2008 RMP definitively determined that the Caliente Complex would not be

managed for wild horses, satisfying Bennett’s first prong.




                                                   21
                       ii.     Prong 2: Legal Consequences Flow from the 2008 RMP HA
                               Determination

        As to Bennett’s second prong, “[t]he law in this area is hardly crisp,” “lack[ing] many

‘self-implementing, bright-line rule[s].’” Rhea Lana, Inc., 824 F.3d at 1027 (third alteration in

original) (quoting Nat’l Ass’n of Home Builders v. U.S. Army Corps of Eng’rs, 417 F.3d 1272,

1279 (D.C. Cir. 2005)). Both the Supreme Court and the D.C. Circuit, however, have made clear

that “determining whether ‘legal consequences will flow’ from an agency action is a ‘pragmatic’

inquiry.” Ipsen Biopharmaceuticals, Inc. v. Azar, 943 F.3d 953, 956 (D.C. Cir. 2019) (quoting

Hawkes, 136 S. Ct. at 1815). When conducting this “pragmatic” and “flexible” inquiry, Rhea

Lana, 824 F.3d at 1027 (internal quotation marks omitted) (quoting Nat’l Ass’n of Home

Builders, 417 F.3d at 1279), a court must look to “the concrete consequences an agency action

has or does not have as a result of the specific statutes and regulations that govern it,” Ipsen, 943

F.3d at 956 (internal quotation mark omitted) (quoting Cal. Cmtys. Against Toxics v. EPA, 934

F.3d 627, 637 (D.C. Cir. 2019)).

       Notably, Bennett’s second prong is satisfied by legal consequences that affect only the

agency itself. See, e.g., Sierra Club v. Trump, 929 F.3d 670, 698 n.23 (9th Cir. 2019) (“[T]he

question we must ask in determining finality is whether the agency action imposes obligations on

the agency, not whether it imposes obligations on Plaintiffs.”). Bennett’s holding illustrates this

point. There, the Supreme Court considered “a challenge to a biological opinion issued by the

Fish and Wildlife Service in accordance with the Endangered Species Act . . . concerning . . . [a]

project’s impact on two varieties of endangered fish.” Bennett, 520 U.S. at 157. The biological

opinion did not bind the petitioners who challenged the agency action, nor subject the petitioners

to potential legal liability or alter their legal rights. Nevertheless, the Supreme Court determined

that the biological opinion had “direct and appreciable legal consequences” by “alter[ing] the

                                                 22
legal regime to which the action agency [was] subject, authorizing [the agency] to take the

endangered species if (but only if) it complie[d] with . . . prescribed conditions.” Id. at 178

(emphasis added); see also, e.g., NRDC v. EPA, 643 F.3d 311, 320 (D.C. Cir. 2011) (“[T]he

Guidance binds EPA regional directors and thus qualifies as final agency action.” (emphasis

added)).

       The reasoning that applied in Bennett applies here: Legal consequences flowed from the

decision to convert the remaining Caliente Complex HMAs into HAs and set an effective AML

of zero for the Complex because that decision “alter[ed] the legal regime to which . . . agency

action is subject.” Bennett, 520 U.S. at 178. As a general matter, “[r]esource management plans

are designed to guide and control future management actions.” 43 C.F.R. § 1601.0-2 (emphasis

added). In accordance with this design, an RMP “constrains” BLM by “prevent[ing] BLM from

taking actions inconsistent with the provisions of [the] land use plan.” Norton v. S. Utah

Wilderness All., 542 U.S. 55, 69, 71 (2004). On this point, the Supreme Court has made clear

that, “[u]nless and until the plan is amended, [inconsistent] actions can be set aside as contrary to

law pursuant to 5 U.S.C. § 706(2).” Id. at 69.

       AML determinations made pursuant to land use plans are no exception to this general

rule. When deciding whether to conduct a wild horse gather, “BLM is required . . . to conform to

[land use] plans” in effect. Habitat for Horses v. Salazar, 745 F. Supp. 2d 438, 456 (S.D.N.Y.

2010) (citing 43 C.F.R. §§ 1601.0-5(b), 1610.5-3(a)). Such conformance is compelled by

regulation, see, e.g., 43 C.F.R. § 4710.1, as well as by the WHBA itself, which mandates that

BLM “determine[] ‘excess animals’ through the use of AML levels,” In Def. of Animals v. U.S.

Dep’t of the Interior, 751 F.3d 1054, 1063 (9th Cir. 2014) (citing 16 U.S.C. § 1333(b)(2)).

Moreover, like in Bennett, BLM “disregard[s]” AML determinations “at its own peril (and that



                                                 23
of its employees),” 520 U.S. at 170, for “any person who . . . willfully removes or attempts to

remove a wild free-roaming horse or burro from the public lands, without authority from the

Secretary . . . shall be subject to a fine of not more than $2,000, or imprisonment for not more

than one year, or both,” 16 U.S.C. § 1338(a)(1); see Bennett, 520 U.S. at 170 (explaining that

“any person” who disregarded the biological opinion at issue could be “subject to substantial

civil and criminal penalties, including imprisonment” (internal quotation marks omitted)).

       Thus, once an AML has been set by an RMP, “discretion” previously afforded to BLM to

determine the wild horse population for that region has been “withdrawn.” NRDC, 643 F.3d at

319. That legal consequence satisfies Bennett’s second prong. See id. at 320 (determining that

agency’s issuance of guidance was a final agency action because “[t]he permissibility of

alternatives” under the applicable regulatory scheme was “now a closed question, and the

Guidance [left] to future rulemakings only the issue of whether a specific proposed alternative”

was satisfactory). This conclusion fully comports with that of other courts, which have

recognized that land use plans constitute final agency action to the extent they limit an agency’s

future options. See, e.g., Or. Nat. Desert Ass’n v. Bureau of Land Mgmt., 625 F.3d 1092, 1118

(9th Cir. 2010) (concluding that adoption of an EIS for a land use plan in a record of decision

constituted final agency action); Friends of Tims Ford v. Tenn. Valley Auth., 585 F.3d 955, 964–

65 (6th Cir. 2009) (same); W. Org. of Res. Councils v. U.S. Bureau of Land Mgmt., No. CV 16-

21-GF-BMM, 2017 WL 374705, at *2 (D. Mont. Jan. 25, 2017) (determining that record of

decision that “approved RMP revisions . . . and . . . amendments” “represent[ed] final agency

action which is subject to judicial review”); S. Utah Wilderness All. v. Burke, 981 F. Supp. 2d

1099, 1103 (D. Utah 2013) (“The final agency action at issue in this case is the BLM’s [record of

decision] approving the Richfield RMP and Travel Plan.”); Stout v. U.S. Forest Serv., Civil No.



                                                24
09-152-HA, 2011 WL 867775, at *6 (D. Or. Mar. 10, 2011) (“[I]f an agency’s future actions

must be consistent with the plan, and the litigant’s grievance is with the overall plan, he or she

may challenge the approval of the plan . . . .”); Soda Mountain Wilderness Council v. Norton,

424 F. Supp. 2d 1241, 1259–60 (E.D. Cal. 2006) (determining that amendment to land use plan

was final agency action).10

                                                         ***

         The 2008 RMP decision not to manage the Caliente Complex for wild horses constituted

final agency action, and any challenges to that 2008 RMP HA determination were ripe by, at the

latest, 2009—as the plaintiffs concede by acknowledging that the 2008 RMP HA determination

could have been challenged alongside a challenge to the 2009 Gather Decision. See Pls.’ Opp’n

at 41–42. Accordingly, the statute of limitations on review of the 2008 RMP HA determination

expired no later than 2015, three years before the plaintiffs brought this suit. See, e.g., Shasta

Res. Council v. U.S. Dep’t of the Interior, 629 F. Supp. 2d 1045, 1054 (E.D. Cal. 2009)

(“Plaintiffs did not formally challenge the 1993 RMP when it was issued fifteen years ago, and

any new challenge to its provisions would be untimely under the APA’s six-year statute of

limitations.” (citations omitted)).

                  2.        Reopening

         In addition to contesting the date of accrual, the plaintiffs argue that the 2008 RMP HA

determination may be challenged as part of a claim against the 2018 Gather Decision because the


10
          The D.C. Circuit’s decision in Fund for Animals, Inc. v. U.S. Bureau of Land Management, 460 F.3d 13
(D.C. Cir. 2006), is not to the contrary. Fund for Animals held that a BLM “strategy” developed “to achieve
nationwide AML,” 460 F.3d at 16, and codified in a “budget request to Congress” that Congress funded, id. at 19,
was not final agency action, id. The Circuit analogized the funded budget request to a land use plan, stating that the
Supreme Court has “held that [land use] plans themselves are generally unreviewable; it is only specific actions
implementing the plans that are subject to judicial scrutiny.” Id. at 21. As is evident, however, from the Circuit’s
reliance on Ohio Forestry, see id. at 22 (citing Ohio Forestry, 523 U.S. at 730), the Circuit was merely referring to
the fact that challenges to land use plans are typically not ripe until implementation occurs in a site-specific decision.
See supra note 9.

                                                           25
latter decision “is not a mere implementation” of the former. Pls.’ Opp’n at 41 n.13. Although

the plaintiffs do not expressly say so, this argument appears to invoke the “reopening doctrine,”

which “allows an otherwise stale challenge to proceed because the agency opened the issue up

anew, and then reexamined and reaffirmed its prior decision.” Wash. All. of Tech. Workers v.

U.S. Dep’t of Homeland Sec., 892 F.3d 332, 346 (D.C. Cir. 2018) (internal quotation marks

omitted) (quoting P & V Enters., 516 F.3d at 1023). “The doctrine only applies, however, where

the entire context demonstrates that the agency has undertaken a serious, substantive

reconsideration of the existing rule.” All. for Safe, Efficient & Competitive Truck Transp. v. Fed.

Motor Carrier Safety Admin., 755 F.3d 946, 954 (D.C. Cir. 2014) (internal quotation marks

omitted) (quoting P & V Enters., 516 F.3d at 1024).

       As an initial matter, the plaintiffs’ insistence that the 2018 Gather Decision was “not a

mere implementation” is belied by the plaintiffs’ own characterizations of this agency action.

Throughout their briefing, the plaintiffs repeatedly and consistently describe the 2018 Gather

Decision as “implementing” the 2008 RMP. See, e.g., Mem. Supp. Pls.’ Mot. (“Pls.’ Mem.”) at

2, ECF No. 18-1 (describing the 2008 RMP as “implemented through the 2018 [Gather

Decision]”); id. at 19 (explaining that the 2018 Gather Decision was “designed to implement the

2008 Ely RMP”); id. at 22 (“In the 2018 [Gather Decision], BLM determined that it would

remove all wild horses from the Caliente Complex in order to implement the 2008 Final Ely

RMP.”); Pls.’ Opp’n at 1 (“BLM made this decision in the 2008 Ely Resource Management Plan

. . . and recently implemented it in the 2018 [Gather Decision].”); id. at 12 (stating that BLM

“dramatically reduce[d] the longstanding AML in the Caliente Complex from 73-147 wild horses

to zero wild horses in the 2008 RMP, and then implement[ed] this change in the 2018 [Gather

Decision]”). In fact, even in discussing the statute-of-limitations issue, the plaintiffs adopt the



                                                 26
very framing they contest. See Pls.’ Opp’n at 42 n.14 (“The site-specific 2018 [Gather Decision]

. . . expressly implement[s] the 2008 RMP and Final EIS.”). The plaintiffs themselves thus

undermine their assertion that the 2018 Gather Decision reopened the 2008 RMP HA

determination.

       More fundamentally, the plaintiffs’ argument fails because at every possible juncture,

BLM relayed that the HA determination in the 2008 RMP was not being reconsidered as the

agency determined what site-specific action to take in 2018. BLM explained, for instance, that

the purpose of its proposed action was “to remove all excess wild horses from areas not

designated for their long-term maintenance . . . in conformance with the decision in the 2008 Ely

RMP to return these areas to HA status,” AR 7, conveying that BLM was focused on achieving

AML, not reassessing it. Similarly, when commentators requested that BLM revise the AML,

BLM expressly declined to do so, explaining that “[t]he purpose of this [decision] is to gather

excess horses, not to reaffirm or modify the Appropriate Management Level.” AR 98; see also,

e.g., AR 94 (“BLM cannot use regulations at 43 CFR 4710.5 to manage horses and livestock in a

manner that is inconsistent with the RMPs. A land-use plan amendment or revision would be

necessary to reallocate use in this manner . . . .”); AR 96 (“BLM must manage wild horses in the

HAs consistent with the land-use plan.”); AR 97 (“Here, BLM has [already] determined that

management of an AML of zero horses is appropriate, as reflected in the land-use plan.”).

       Notwithstanding that BLM repeatedly stated that the agency was not revisiting the 2008

RMP HA determination, the plaintiffs contend that BLM in fact reconsidered the issue by

“expressly rel[ying] on ‘data collected . . . during 2009 – 2017,’” a period that postdated the

2008 RMP. Pls.’ Opp’n at 41 n.13 (omission in original) (quoting AR 7). This contention

misconstrues the reason BLM relied on post-2008 data. BLM did not look to that data to decide



                                                 27
how many horses should be in the Caliente Complex, but to determine how and when to achieve

the AML of zero. Indeed, by statute, BLM is required to consider all relevant “information” that

“becomes available to [it]” when it determines whether “action is necessary to remove excess

animals.” 16 U.S.C. § 1333(b)(2); see also infra Part III.C.1 (explaining the scope of gather

decisions). Review of post-2008 data, then, did not transform the 2018 Gather Decision into a

reassessment of the AML.

       In short, BLM did not—explicitly or implicitly—reopen the 2008 RMP HA

determination in the process of issuing the 2018 Gather Decision, and thus the reopening

doctrine does not apply.

                                                ***

       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. As to the 2008

RMP, the plaintiffs’ claims are simply not timely. Accord Cloud Found. v. U.S. Bureau of Land

Mgmt., No. 3:11-cv-00459-HDM-VPC, 2013 WL 1249814, at *10 n.11 (D. Nev. Mar. 26, 2013)

(“[S]imply because plaintiffs are not currently able to challenge the relevant RMPs in this case

does not mean they could not have done so when the RMPs were drafted or revised.”).




                                                 28
       Notwithstanding the defendants’ successful timeliness defense to the plaintiffs’ challenge

to the 2008 RMP, as discussed next, other aspects of the plaintiffs’ claims survive.

               3.      The Plaintiffs’ Remaining Challenge

       Although the plaintiffs’ challenge to the 2008 RMP HA determination is untimely, the

2008 RMP is not the only agency action at issue. The plaintiffs’ three claims also allege that the

2018 Gather Decision was issued in violation of the WHBA, NEPA, and the APA, see Compl. ¶¶

81, 94–99, 101, and the plaintiffs’ requested relief includes vacatur of the 2018 Gather Decision,

see id. at 37 (prayer for relief). The defendants believe that the plaintiffs’ challenge to the 2018

Gather Decision is, like the challenge to the 2008 RMP, foreclosed on statute-of-limitations

grounds, because “at bottom, all of [the plaintiffs’] claims are ultimately attacking the underlying

decision to not manage the Complex for horses.” Defs.’ Opp’n at 13. The defendants are

incorrect.

       While the statute of limitations has indeed rendered the plaintiffs’ arguments and

requested relief regarding the 2008 RMP untimely, see Pls.’ Mem. at 25–32, 38–39 (primarily

challenging the 2008 RMP); Pls.’ Opp’n at 3–5, 8, 12–14, 20–28, 34–35 (same), other arguments

asserted by the plaintiffs pertain solely to the 2018 Gather Decision, see, e.g., Pls.’ Opp’n. at 14–

20 (arguing that “BLM’s 2018 EA failed to take a ‘hard look’ at environmental impacts of

livestock in comparison to wild horses,” id. at 14 (capitalization altered)), which is also a final

agency action and which is well within the applicable limitations period for judicial review.

Accordingly, the merits of the plaintiffs’ challenge to the 2018 Gather Decision will be

considered. See, e.g., Wild Fish Conservancy v. Nat’l Park Serv., 8 F. Supp. 3d 1289, 1296

(W.D. Wash. 2014) (concluding that challenge to EISs was untimely but reaching the merits of

“whether the . . . EA was properly tiered to the EISs”); Am. Forest Res. Council v. Ashe, 946 F.



                                                 29
Supp. 2d 1, 21 (D.D.C. 2013) (explaining that plaintiffs’ claims directed at recent agency actions

were timely but challenge to 1996 rule presented timeliness issues).

       C.      Wild Free-Roaming Horses and Burros Act Claim

       Stripped of the untimely challenge to the 2008 RMP, the plaintiffs’ WHBA claim is

nothing more than a garden-variety challenge to a BLM gather decision. The scope of such

agency action is narrowly circumscribed by law, and BLM properly acted within that scope

when issuing the 2018 Gather Decision.

               1.      BLM Gather Decisions Generally

       BLM gather decisions are but one step in a comprehensive process—prescribed by statute

and regulation—to which BLM must adhere in the management of wild free-roaming horses.

       The first step in the process is the one that, due to untimeliness, the plaintiffs are

foreclosed from challenging: establishment of an area’s AML, including establishment of an

effective AML by designating an area as an HA. Often, “AMLs are set within the RMPs.”

Cloud Found. v. U.S. Bureau of Land Mgmt., No. 3:11-cv-00459-HDM-VPC, 2013 WL

1249814, at *10 (D. Nev. Mar. 26, 2013); see also Fund for Animals, Inc. v. U.S. Bureau of Land

Mgmt., 460 F.3d 13, 15 (D.C. Cir. 2006) (noting that HMAs are “established in accordance with

broader land use plans”). Indeed, in the case of an AML of zero, BLM has interpreted its

regulations to require that such an AML be set pursuant to an RMP. See BLM HANDBOOK, App.

C at 7; see also 43 C.F.R. §§ 4710.1, 4710.4. Once an AML determination is made in an RMP,

that determination is final and binds BLM unless and until BLM revises it. See supra Part

III.B.1.b. (explaining that the 2008 RMP HA determination was final agency action); see also In

Def. of Animals v. U.S. Dep’t of the Interior, 751 F.3d 1054, 1064 n.13 (9th Cir. 2014)

(“[N]othing in the [WHBA] requires the BLM to determine new AMLs based on current



                                                 30
conditions every time the BLM decides to take action to restore the already-established

AMLs.”).

       After an AML is set, the WHBA “direct[s]” BLM to “determin[e] where wild horse . . .

overpopulations exist.” Am. Horse Prot. Ass’n, Inc. v. Watt, 694 F.2d 1310, 1317 (D.C. Cir.

1982) (Ginsburg, Ruth B., J.) (citing 16 U.S.C. § 1333(b)(1)). To comply with this directive,

BLM “maintain[s] an inventory of wild horses roaming the public lands,” id., and compares that

inventory to the existing AML, which functions as “a trigger by which [] the BLM is alerted to

address population imbalance,” In Def. of Animals, 751 F.3d at 1064 (alteration in original)

(internal quotation mark omitted) (quoting In Def. of Animals v. U.S. Dep’t of the Interior, 909 F.

Supp. 2d 1178, 1192 (E.D. Cal. 2012)).

       “Once BLM determines that an overpopulation in fact exists in a given area, the agency

has wide discretion in how it addresses that overpopulation.” W. Rangeland Conservation Ass’n

v. Zinke, 265 F. Supp. 3d 1267, 1282 (D. Utah 2017). The WHBA permits BLM to “achieve[]”

“appropriate management levels” “by the removal or destruction of excess animals, or other

options (such as sterilization, or natural controls on populations levels).” 16 U.S.C.

§ 1333(b)(1). This discretion, however, is limited in a key way: the WHBA “requires” BLM

“‘immediately [to] remove excess animals from the range so as to achieve appropriate

management levels’” when “the Bureau determines ‘that an overpopulation exists on a given

area of the public lands and that action is necessary to remove excess animals.’” Fund for

Animals, 460 F.3d at 16 (alteration in original) (emphasis added) (quoting 16 U.S.C.

§ 1333(b)(2)). In making that determination, BLM is obligated to consider “(i) the current

inventory of lands within [its] jurisdiction; (ii) information contained in any land use planning

completed pursuant to section 1712 of Title 43; (iii) information contained in court ordered



                                                31
environmental impact statements as defined in section 1902 of Title 43; and (iv) such additional

information as becomes available to [it] from time to time.” 16 U.S.C. § 1333(b)(2). Yet, in the

event of “the absence of the information contained in (i-iv),” BLM must still act “immediately”

“on the basis of all information currently available to [the agency].” Id.

       Importantly, the WHBA requires that BLM rely on the established AML when

determining whether excess wild horses are present in a particular area. Friends of Animals v.

Silvey, 353 F. Supp. 3d 991, 1008 (D. Nev. 2018), appeal docketed, No. 18-17415 (9th Cir. Dec.

21, 2018). As the Ninth Circuit has explained, “the statute determines ‘excess animals’ through

the use of AML levels,” as it provides that BLM “‘shall immediately remove excess animals

from the range so as to achieve appropriate management levels.’” In Def. of Animals, 751 F.3d

at 1063 (emphasis in original) (quoting 16 U.S.C. § 1333(b)(2)). “Although the statute also

provides that ‘[s]uch action shall be taken . . . until all excess animals have been removed so as

to restore a thriving natural ecological balance,’ the most logical reading of those two phrases

together is that the BLM must achieve a ‘thriving natural ecological balance’ by maintaining the

relevant AMLs.” Id. (emphasis in original) (quoting 16 U.S.C. § 1333(b)(2)). Further, BLM

must consider “information contained in any land use planning,” 16 U.S.C. § 1333(b)(2), which

necessarily requires consideration of the AML set in an existing RMP. Accordingly, “courts

have upheld excess horse determinations based primarily—if not solely—on the AML.” Cloud

Found., 2013 WL 1249814, at *7 (citing In Def. of Animals, 909 F. Supp. 2d at 1192, aff’d, 751

F.3d 1054, and Cloud Found., Inc. v. Kempthorne, No. CV-06-111-BLG-RFC, 2008 WL

2794741, at *1 (D. Mont. July 16, 2008)); see also Friends of Animals v. Bureau of Land Mgmt.,

No. 2:16-cv-1670-SI, 2018 WL 1612836, at *18 (D. Or. Apr. 2, 2018) (“WHBA instructs BLM




                                                32
to remove excess horses to bring the population within AML; it does not require BLM make yet

another finding that removal to the AML is necessary.” (emphasis in original)).

        In sum, in deciding whether to conduct a gather, BLM is obligated to determine whether

action is necessary to remove excess animals. In doing so, BLM must rely on any AML set in an

RMP, and, when necessary, must act immediately, even if more relevant information could

become available at a later date. See Blake v. Babbitt, 837 F. Supp. 458, 459 (D.D.C. 1993)

(“When a determination is made that there is an over-population of wild horses, action is

required based on the knowledge currently available, even if it is not complete. Adjustments can

be made later, but the endangered and rapidly deteriorating range cannot wait.” (citation

omitted)).

               2.     The 2018 Gather Decision

       Here, BLM complied with the WHBA and appropriately determined that action is

necessary to remove excess wild horses in the Caliente Complex. BLM explained that, “[u]nder

the 2008 Ely District RMP, no wild horses are to be managed within the Caliente HA Complex.”

AR 3. Yet, as of 2017 BLM had identified in the Complex “an estimated population of 1,744 . . .

wild horses,” and determined that “the estimated population [would] increase 20% a year after

the 2017 inventory.” AR 6. BLM assessed the ecological impact of this overpopulation, relying

on “[m]onitoring data collected for the HA’s during 2009 - 2017,” AR 7, the pre-2009 analysis

that had informed the 2008 AML determination, see AR 6, and the AML itself, see AR 4. BLM

found, inter alia, that “[i]nsufficient herbaceous forage within the dominant ecological sites does

not support healthy wild horses, and has led to excess utilization and trampling which is




                                                33
currently impacting range conditions by causing deterioration of vegetative resources (including

at riparian areas) and is preventing recovery of key sites.” AR 34.

       Based on this assessment, BLM concluded that the wild horses in the Complex are

“excess wild horses,” and that a “gather is necessary to remove [them].” AR 104. This analysis

was both appropriate for a gather decision and sufficient to support BLM’s conclusion that the

horses must be removed. See, e.g., In Def. of Animals, 751 F.3d at 1062–63 (“Given the

undisputed fact that the wild horse and burro populations greatly exceeded their respective

AMLs at the time of the gather, and the carefully-documented concerns about the deterioration

of riparian areas and cultural sites caused by overpopulation, as well as the likelihood of

insufficient forage to sustain the growing herd, the BLM properly decided action was necessary

to restore the AMLs.” (footnote omitted)); Friends of Animals v. U.S. Bureau of Land Mgmt.,

232 F. Supp. 3d 53, 63–64 (D.D.C. 2017) (finding logic underlying BLM’s excess determination

was “sound” where “determination was based on an assessment of current herd size and relevant

ecological conditions” and “made by reference to the AML for the [relevant HMA]”).

       The plaintiffs dispute BLM’s assessment on several grounds. First, the plaintiffs contend

that “BLM provided no data or analysis to support its” conclusions. Pls.’ Mem. at 31. The

record shows otherwise. BLM engaged in a thorough review of the options available and the

likely impacts of each option before deciding to proceed with a gather. See AR 10–44.

Moreover, the WHBA requires that BLM act “immediately” when removal of wild horses is

necessary based on “information currently available to [the agency].” 16 U.S.C. § 1333(b)(2)

(emphases added). As the D.C. Circuit has instructed, “BLM’s findings of wild horse

overpopulations should not be overturned quickly on the ground that they are predicated on

insufficient information.” Watt, 694 F.2d at 1318.



                                                34
       Next, the plaintiffs disagree with BLM’s conclusion that the Caliente Complex lacks

sufficient resources to support a wild horse population, making removal of the wild horses

necessary. By BLM’s own estimations, the plaintiffs point out, “there are adequate resources [in

the Caliente Complex] to support 3300 cows,” Pls.’ Mem. at 27, and, moreover, the Complex

contains a “growing population of wild horses,” illustrating that the Complex can, in fact,

support wild horses, id. at 29 (emphasis in original). Yet, BLM expressly addressed the

livestock issue, explaining that “[u]nlike wild horses, livestock can be actively managed through

use of water developments owned or controlled by the permittees and can be removed from the

range if . . . there is insufficient forage available.” AR 89; see also Cloud Found., 2013 WL

1249814, at *10 n.11 (“[N]o law compel[s] BLM to make adjustments to livestock grazing

preferences in order to accommodate more wild horses.”). Further, the fact that “horse numbers

[may] exceed the AMLs for a period of time . . . does not prove that the range can support that

number of animals long term.” Cloud Found., 2013 WL 1249814, at *10 n.11 (emphasis added).

       Third, the plaintiffs claim that “the record shows that the failure to achieve rangeland

health standards was due primarily to fire and livestock use, not wild horse use.” Pls.’ Mem. at

27–28 (emphasis in original) (citing AR 9637, 9468). BLM, however, does not need to

determine that wild horses are the only cause of relevant ecological damage before deciding that

removal of wild horses is necessary. Indeed, some courts have held that BLM may remove even

wild horses that merely “threaten to disturb [the ecological] balance,” and thus BLM clearly may

remove “those horses that have already done so.” Cloud Found., 2013 WL 1249814, at *8

(emphasis in original); see also In Def. of Animals, 751 F.3d at 1063 (“Preservation efforts can

hardly require prior destruction of what is to be preserved. . . . BLM may determine removal is




                                                35
necessary to ensure that the current thriving natural ecological balance does not deteriorate in the

future.”).

         Fourth and finally, the plaintiffs argue that BLM failed to consider viable alternatives to

removal, “such as reductions in livestock grazing, rangeland improvements, or managing HMAs

as complexes as BLM had done in the past.” Pls.’ Mem. at 27.11 These alternatives, however,

could not be effectuated through a gather decision. See supra Part III.C.1 (explaining the scope

of gather decisions); Cloud Found., 2013 WL 1249814, at *10 n.11 (“[P]laintiffs cite no

authority for the proposition that large-scale adjustments which alter the balance in favor of wild

horse may be accomplished outside the RMP process.”). Accordingly, BLM correctly treated

these alternatives as what they were: requests to amend the RMP, not plausible routes to

achieving the effective AML. See Cloud Found., 2013 WL 1249814, at *10 (“[P]laintiff’s

argument that the range must be devoted principally to livestock and not to wild horses should be

asserted through the RMP process. There is no evidence plaintiffs have ever challenged the

applicable RMPs.” (citations omitted)); see also Cloud Found., Inc. v. Salazar, 999 F. Supp. 2d

117, 125 (D.D.C. 2013) (“Range expansion is not the type of decision that can be made in a

[herd management area plan (‘HMAP’)]. Rather . . . ‘[d]esignation of a wild horse territory is a

“land use” decision, appropriately addressed at the Forest Plan scale, rather than the scale for the

HMAP revision.’” (second alteration and emphasis in original) (quoting administrative record)).

         BLM properly determined that the wild horses in the Caliente Complex are “excess

animals” under the WHBA and that removal is necessary to achieve the effective AML.

Therefore, the defendants are entitled to summary judgment on Claim I.


11
          The plaintiffs also assert that when an agency “fail[s] to consider . . . an option at the programmatic level, it
[is] obligated to consider such an option at the site-specific level.” Pls.’ Opp’n at 7 n.2 (citing W. Watersheds Proj.
v. Abbey, 719 F.3d 1035, 1051 (9th Cir. 2013)). This argument, however, is drawn from NEPA caselaw, not WHBA
caselaw, and thus is addressed in the discussion of the plaintiffs’ NEPA claim, infra, in Part III.D.2.

                                                            36
       D.      National Environmental Policy Act Claim

       The plaintiffs challenge in Claim II the sufficiency under NEPA of the 2018 Gather

Decision’s EA (“2018 EA”). They question whether BLM took a sufficiently “hard look” at the

planned gathers’ environmental impacts, whether BLM considered all reasonable alternatives,

and whether BLM adequately disclosed relevant environmental information before issuing its

decision. None of the arguments put forward by the plaintiffs is legally sufficient or persuasive.

               1.      “Hard Look” Review

       NEPA “requir[es] federal agencies to take a ‘hard look’ at their proposed actions’

environmental consequences in advance of deciding whether and how to proceed.” Sierra Club

v. U.S. Army Corps of Eng’rs, 803 F.3d 31, 37 (D.C. Cir. 2015). “The definition of ‘hard look’

may be ‘imprecise,’” but the D.C. Circuit has made clear that “an agency has taken a ‘hard look’

at the environmental impacts of a proposed action if ‘the statement contains sufficient discussion

of the relevant issues and opposing viewpoints, and . . . the agency’s decision is fully informed

and well-considered.’” Myersville Citizens for a Rural Cmty. v. FERC, 783 F.3d 1301, 1324–25

(D.C. Cir. 2015) (omission in original) (internal quotation marks omitted) (quoting Nevada v.

Dep’t of Energy, 457 F.3d 78, 93 (D.C. Cir. 2006)).

       The plaintiffs contend that BLM failed to conduct a “hard look” in the 2018 EA in two

ways. First, they maintain that BLM’s decision was not well-considered because BLM’s own

“utilization studies” demonstrated other causes of rangeland deterioration, such as “fires.” Pls.’

Opp’n at 16. This argument is easily dispatched. The plaintiffs do not contend that the relevant

utilization studies showed that wild horses cause no ecological damage. Rather, their complaint

is that “wild horses were not the sole cause” of the damage. Id. (emphasis added). As explained,

supra, in Part III.C.2, the WHBA does not demand that BLM determine that horses are the only



                                                37
cause of ecological damage before BLM concludes that removal of wild horses is necessary, and

the plaintiffs cite no reason why NEPA would require more on this score.

       Second, the plaintiffs claim that the “hard look” obligation “requires agencies to consider

. . . the ‘combined’ effects of managing different species using a given area,” Pls.’ Mem. at 33

(quoting Friends of Animals v. Clark, 27 F. Supp. 2d 8, 13 (D.D.C. 1998)), and that BLM failed

to do so by not taking “any look, at the direct, indirect, or cumulative impacts of the significant

livestock grazing BLM permits in the Caliente Complex” in the 2007 EIS and the 2018 EA, id. at

34 (emphasis in original). Even if, as the plaintiffs claim, the impact of livestock grazing had not

been considered in the 2007 EIS when assessing the AML for the Caliente Complex, the

plaintiffs fail to explain how the number of grazing permits would bear now on the methods

BLM should use to reach the effective AML of zero and accomplish the removal of horses from

the Complex, which was the sole concern of the 2018 Gather Decision. See supra Part III.C.1

(explaining the scope of gather decisions). Indeed, the plaintiffs’ arguments on this issue

primarily target the 2008 RMP process resulting in conversion of all remaining HMAs in the

Caliente Complex into HAs establishing the effective AML for wild horses of zero. See e.g.,

Pls.’ Mem. at 33 (complaining about “adjusting AML . . . to zero”); id. at 34 (complaining about

“dropping eight HMAs to HA status”); id. at 35 (complaining about BLM’s decision “to

eliminate the horses from this area of public lands”); id. at 36 (complaining about “zeroing out

the [Delmar Mountains] HMA”); id. at 37 (complaining about BLM’s decision “to eliminate

every single wild horse”). These arguments challenging the 2008 RMP HA determination are

untimely and, no matter how vigorously asserted over multiple pages of briefing, do not raise a

legally sufficient attack on the 2018 Gather Decision. As the D.C. Circuit recently explained,

“once an agency has taken a ‘hard look’ at ‘every significant aspect of the environmental impact’



                                                 38
of a proposed major federal action, it is not required to repeat its analysis simply because the

agency makes subsequent discretionary choices in implementing the program.” Indian River

Cty. v. U.S. Dep’t of Transp., 945 F.3d 515, 533 (D.C. Cir. 2019) (quoting Balt. Gas & Elec. Co.

v. NRDC, 462 U.S. 87, 97 (1983)).

       As to the plaintiffs’ repeated criticism of the 2007 EIS for failing to consider the

combined impact of livestock and wild horses in the area, this criticism simply masks the

plaintiffs’ disagreement with the conclusion of BLM’s analysis. BLM did in fact consider the

cumulative impacts of wild horses and livestock in the 2007 EIS, determining that even if all

livestock were removed from the Caliente Complex, considerations that required removal of wild

horses would remain. See AR 3512. In the 2018 Gather Decision, BLM was not required to

second-guess this analysis that had occurred in a NEPA document that was both unchallenged

and over a decade old. The effective AML for wild horses was already set at zero, rendering

additional analysis in 2018 of livestock grazing immaterial. See Grunewald v. Jarvis, 776 F.3d

893, 906 (D.C. Cir. 2015) (determining that NEPA permitted National Park Service to analyze

deer management plan and exotic plant management plan in separate NEPA documents when

both actions “related to the [same] General Management Plan”); Clark, 27 F. Supp. 2d at 13

(requiring that environmental impacts of programs be considered together only because they had

not previously been addressed in the same document).

       Accordingly, while the plaintiffs are critical of the 2007 EIS’s analysis of “the impacts of

livestock grazing and wild horse use on the Caliente Complex,” Pls.’ Mem. at 36, BLM did not

have to repeat this analysis for implementation of the 2008 RMP in the 2018 Gather Decision.




                                                 39
               2.      Consideration of Alternatives

       Relatedly, the plaintiffs claim that BLM violated NEPA by failing to consider reasonable

alternatives. Courts “evaluat[e] an agency’s choice of ‘reasonable alternatives’ in light of the

objectives of the federal action,” City of Alexandria v. Slater, 198 F.3d 862, 867 (D.C. Cir.

1999), applying a two-part test. First, courts determine “whether the agency has reasonably

identified and defined its objectives,” id., affording “considerable deference to the agency’s

expertise and policy-making role,” Theodore Roosevelt Conservation P’ship v. Salazar, 661 F.3d

66, 73 (D.C. Cir. 2011) (internal quotation marks omitted) (quoting Slater, 198 F.3d at 867).

       Second, courts consider “whether a particular alternative is reasonable in light of these

objectives,” Slater, 198 F.3d at 867. “An alternative is ‘reasonable’ if it is objectively feasible as

well as ‘reasonable in light of the [the agency’s] objectives.’” Theodore Roosevelt Conservation

P’ship, 661 F.3d at 72 (alteration in original) (quoting Slater, 198 F.3d at 867). Thus, the

agency’s “purpose and need for action . . . will determine the range of alternatives and provide a

basis for the selection of an alternative in a decision.” Id. at 72–73 (internal quotation mark

omitted) (quoting 43 C.F.R. § 46.420(a)(2)); see also Citizens Against Burlington, Inc. v. Busey,

938 F.2d 190, 195 (D.C. Cir. 1991) (“The goals of an action delimit the universe of the action’s

reasonable alternatives.”). An agency’s choice of and among alternatives does not take place in

a vacuum but in the context of authorizing statutes, which reflect legislative purposes and intent

regarding agency action. See Theodore Roosevelt Conservation P’ship, 661 F.3d at 73. “[A]n

alternative is properly excluded from consideration . . . if it would be reasonable for the agency

to conclude that the alternative does not ‘bring about the ends of the federal action.’” Slater, 198

F.3d at 867 (quoting Citizens Against Burlington, 938 F.2d at 195); see also 43 C.F.R.




                                                 40
§ 46.420(b) (defining “reasonable alternatives” as “alternatives that are technically and

economically practical or feasible and meet the purpose and need of the proposed action”).

       “Importantly, [courts] review both an agency’s definition of its objectives and its

selection of alternatives under a ‘rule of reason.’” Theodore Roosevelt Conservation P’ship, 661

F.3d at 73. Courts “generally defer to the agency’s reasonable definition of objectives” “as long

as the agency ‘look[s] hard at the factors relevant to the definition of purpose.’” Id. (alteration in

original) (quoting Citizens Against Burlington, 938 F.2d at 196). Further, “if the agency’s

objectives are reasonable, [courts] will uphold the agency’s selection of alternatives that are

reasonable in light of those objectives.” Grunewald, 776 F.3d at 904 (internal quotation marks

omitted) (quoting Theodore Roosevelt Conservation P’ship, 661 F.3d at 73).

       Here, the plaintiffs argue that BLM was obligated “to consider the obvious alternative of

reducing livestock grazing.” Pls. Mem. at 38 (capitalization altered). Yet, the 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. See supra

Part III.C.1 (explaining the scope of gather decisions). 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.

Consequently, this proposal is outside the range of reasonable alternatives and merely reflects the




                                                 41
plaintiffs’ disagreement with the purpose itself. BLM therefore properly rejected reduction of

livestock grazing as an alternative.12

        Relevant caselaw is in accord. Indeed, the courts of appeals for both circuits often called

upon to review BLM actions that take place in Nevada—the D.C. Circuit and the Ninth Circuit—

have upheld agencies’ refusal to consider alternatives in cases involving removal of animals and

proposed alterations to grazing practices because the alternatives were inconsistent with agency-

defined objectives. See Grunewald, 776 F.3d at 904 (concluding that “it was not unreasonable

for the Park Service to define its objectives in terms of abating the effects of deer browsing and

trampling” and thus the agency “did not err when it failed to include removing exotic plants as a

stand-alone alternative”); W. Watersheds Proj. v. Abbey, 719 F.3d 1035, 1046 (9th Cir. 2013)

(determining that “BLM’s interpretation of the Proclamation to allow the continued use of its

grazing management was reasonable under [applicable law]” and thus “BLM did not violate

NEPA by excluding changes to its grazing practices from the scope and purpose of the Breaks

Resource Plan”); see also Friends of Animals v. Silvey, 353 F. Supp. 3d 991, 1015–16 (D. Nev.

2018) (“[D]efendants explained that this alternative would simply exchange a limited amount of

current forage used by livestock for use by wild horses, which would not meet the purpose and

need of the project to reduce wild horse growth rates; moreover, the proposed alternative would

not conform to existing land use plans.”), appeal docketed, No. 18-17415 (9th Cir. Dec. 21,

2018); Cloud Found. v. U.S. Bureau of Land Mgmt., No. 3:11-cv-00459-HDM-VPC, 2013 WL

1249814, at *18 (D. Nev. Mar. 26, 2013) (“BLM provided an appropriate explanation as to why




12
         The plaintiffs also argue that BLM was required to “explore the impacts of requiring permittees to make
certain water sources available to wild horses, or to undertake range improvements as conditions of their grazing
permits,” Pls.’ Opp’n at 18 n.6, but the same reasoning disposes of these arguments.

                                                        42
it rejected the livestock reduction alternative: it simply could not reduce livestock grazing

allotments through the gather process.”).

       The plaintiffs rejoin that BLM never considered reduction of livestock as an alternative

when it made the 2008 RMP HA determination and that when an agency “fail[s] to meaningfully

consider . . . an option at the programmatic level, it [is] obligated to consider such an option at

the site-specific level.” Pls.’ Opp’n at 7 n.2. Contrary to the plaintiffs’ characterization of the

record, the 2007 EIS that led up to the 2008 RMP in fact considered an “Alternative D” that

would have “exclude[d] all permitted, discretionary uses of the public lands including livestock

grazing.” AR 3010 (emphasis added). Although BLM did not, as the plaintiffs’ would have

liked, assess an option that would have lowered “both wild horse populations and livestock

grazing levels” simultaneously, Pls. Opp’n at 34 (emphases in original), BLM already had

concerns about the horse herds’ genetic diversity and vulnerability to disease, starvation, and

dehydration at the pre-2008 AML levels, see AR 3506–07, making BLM’s decision not to

consider reduced (but not eliminated) wild horse populations, with or without accompanying

livestock grazing reductions, reasonable.

               3.      Disclosure of Environmental Information

       During the NEPA process, an agency “must insure that environmental information is

available to . . . citizens before decisions are made and before actions are taken.” 40 C.F.R.

§ 1500.1(b); see also Robertson, 490 U.S. at 349 (noting that NEPA’s disclosure requirement

“guarantees that the relevant information will be made available to the larger audience that may

. . . play a role in both the decisionmaking process and the implementation of that decision”);

Balt. Gas & Elec. Co., 462 U.S. at 97 (noting that NEPA “ensures that the agency will inform the

public that it has indeed considered environmental concerns in its decisionmaking process”). An



                                                 43
agency’s disclosure “must be ‘sufficient to enable those who did not have a part in [the NEPA

document’s] compilation to understand and consider meaningfully the factors involved.’” Izaak

Walton League of Am. v. Marsh, 655 F.2d 346, 368 (D.C. Cir. 1981) (quoting Envtl. Def. Fund,

Inc. v. Corps of Eng’rs, 492 F.2d 1123, 1136 (5th Cir. 1974)).

       The plaintiffs contend that BLM did not satisfy this obligation for two reasons. First, the

plaintiffs claim that BLM “refuse[d] to provide the data” that would have allowed the public “to

differentiate between the impacts from wild horses and livestock.” Pls.’ Mem. at 44. This

argument is a nonstarter. Reduction of livestock was outside the scope of the 2018 Gather

Decision, see supra Part III.C.1, and BLM therefore had no obligation to provide data related to

livestock use.

       Second, the plaintiffs complain that BLM did not furnish to the public the 2009–2017

monitoring data it relied on. See Pls.’ Opp’n at 15–16. BLM, however, summarized what the

monitoring revealed about the horses’ ecological impact, see AR 7, 34, and, importantly,

provided data from utilization studies conducted at both the Caliente Complex as a whole and at

several individual HAs within the Complex, see AR 8990, 8998–99, 9001, 9005, 9013, 9057–96.

That data was sufficient to permit the public to engage in meaningful discussion with BLM on

the key issues and to challenge BLM’s conclusions, as evidenced by the arguments that the

plaintiffs themselves raised in this suit in reliance on such studies. See, e.g., Pls.’ Opp’n at 16

(arguing that “[t]hese [utilization] studies actually reinforce the need for the very analyses that

Plaintiffs called for”). NEPA requires nothing more.

                                                ***

       BLM’s 2018 Gather Decision was issued after the agency took a sufficiently “hard look”

at the environmental impacts of that action, considered reasonable alternatives, and disclosed



                                                  44
relevant environmental information to the public to enable participation in the process. Thus, the

plaintiffs’ Claim II fails.13

IV.     CONCLUSION

        For the foregoing reasons, the plaintiffs’ Motion for Summary Judgment, ECF No. 18, is

denied, and the defendants’ Cross-Motion for Summary Judgment, ECF No. 20, is granted.

        An appropriate Order accompanies this Memorandum Opinion.

        Date: February 13, 2020

                                                            __________________________
                                                            BERYL A. HOWELL
                                                            Chief Judge




13
          As the plaintiffs only alleged violations of the APA “through the WHA and NEPA,” Compl. ¶ 100, the
plaintiffs’ Claim III also fails.

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