                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

                                         )
COLORADO WILD HORSE AND                  )
BURRO COALITION, INC., et al.,           )
                                         )
            Plaintiffs,                  )
                                         )
       v.                                )            Civil Action No. 10-1645 (RMC)
                                         )
KENNETH LEE SALAZAR, Secretary, )
U.S. Department of the Interior, et al., )
                                         )
                                         )
            Defendants.                  )
                                         )

                                  MEMORANDUM OPINION

               Plaintiffs challenge the validity of the Bureau of Land Management’s (“BLM”)

decision in 2005 to remove a herd of wild horses west of Douglas Creek in Colorado, on the

basis that the decision violates the Wild Free-Roaming Horses and Burros Act (“Wild Horse

Act”), 16 U.S.C. § 1331 et seq. 1 The Court will dismiss the case because it is not yet ripe for

judicial review.

                   Congress adopted the Wild Horse Act in 1971 and entrusted BLM, an agency

within the U.S. Department of the Interior, with responsibility for guarding and maintaining wild

free-roaming horses in the American West. The Wild Horse Act provides that “[i]t is the policy

of Congress that wild free-roaming horses and burros shall be protected from capture, branding,

harassment, or death; and to accomplish this they are to be considered in the area where

presently found, as an integral part of the natural system of the public lands.” Id. § 1331. It is a


1
 Plaintiffs also allege that the decision violates the Federal Land Policy and Management Act of
1976, 43 U.S.C. § 1701 et seq.


                                                  1
violation of federal law to remove a wild free-roaming horse or burro from public lands, convert

a wild free-roaming horse or burro to private use, or kill or harass a wild free-roaming horse or

burro. See id. § 1338(a)(1)-(3). Tasked with “protect[ing] and manag[ing] wild free-roaming

horses and burros,” the Secretary is authorized to “make determinations as to whether and where

an overpopulation exists and whether action should be taken to remove excess animals.” Id.

§§ 1333(a), 1333(b)(1). The term “excess animals” is defined as “wild free-roaming horses or

burros (1) which have been removed from an area by the Secretary pursuant to applicable law or,

(2) which must be removed from an area in order to preserve and maintain a thriving natural

ecological balance and multiple-use relationship in that area.” Id. § 1332(f). Section 1333(b)(2)

specifically provides an “order and priority” for the removal of excess animals, starting with the

old, sick, or lame, to protect the land necessary to sustain an existing herd or herds of animals,

within their known territorial limits, which is “devoted principally but not necessarily exclusively

to their welfare in keeping with the multiple-use management concept for the public lands,” id.

§ 1332(c) (emphasis added).

                 As relevant here, BLM initially identified two separate “herd units” in

northwestern Colorado, known as the Douglas Creek Herd Unit and the Piceance Basin Herd

Unit, located on either side of a ridge called Cathedral Bluffs. Both herd units are located within

BLM’s White River Resource Area (“WRRA”). In February 1975, BLM conducted its first Unit

Resource Analysis2 that included the Douglas Creek area. It noted that the primary land use for

the local economy was the oil and gas industry and that no forage had been allocated to wild




2
    A Unit Resource Analysis is an inventory and analysis of resources within a planning unit.


                                                  2
horse use. A.R. Vol. 4, Tab 14, p. 379.3 The White River Field Office prepared a Management

Framework Plan4 for the WRRA in that same year and determined that conditions were not

suitable for managing a population of wild horses west of Douglas Creek (the “West Douglas

Herd”). It concluded that the West Douglas Herd should be removed because “[t]he increase in

oil and gas activities in this area . . . is causing horses to disperse into areas where they did not

exist prior to 1971.” A.R. Vol. 4, Tab 12, p. 248. In other words, as early as 1975, the “known

territorial limits” of the range for wild horses in the West Douglas Herd Area were not devoted

principally to the welfare of the horses. Rather, BLM’s decision was to remove the horses to

allow continued oil and gas development.

                The 1975 decision was not acted upon but was also not changed upon review in

1981 and 1997. Still BLM took no actions to remove the wild horses. On August 29, 2005,

BLM’s White River Field Office issued a proposed Decision Record and a Finding of No

Significant Impact5 (“2005 Decision Record”) that again recommended a total removal of the

wild horses from the West Douglas Herd Area by 2007. A.R. Vol. 1, Tab 54, p. 360. The

Colorado State Director approved this recommendation on October 10, 2007, directing that all




3
  The administrative record citations in this Opinion refer to the administrative record from Case
No. 06-1609. In a Minute Order (July 19, 2011), the Court deemed the administrative record
from Case No. 06-1609 to be part of the administrative record in this matter.
4
    A Management Framework Plan is a framework for managing multiple land uses in an area.
5
  The proposed Decision Record and a Finding of No Significant Impact constitute a West
Douglas Herd Area Amendment to the White River Resource Management Plan. A.R. Vol. 1,
Tab 54, p. 360. Under the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et
seq., any “major Federal actions significantly affecting the quality of the human environment”
require the preparation of an environmental impact statement (EIS). Id. § 4332(C). “An agency
can avoid preparing an EIS if it issues a proper Finding of No Significant Impact (“FONSI”).”
Sierra Club v. Van Antwerp, 661 F.3d 1147, 1153 (D.C. Cir. 2011).

                                                   3
horses be removed from the West Douglas Herd Area “at the earliest practicable date.” A.R.

Vol. 1, Tab 12, p. 71.

               This time, the White River Field Office moved promptly to propose a gather of

the wild horses in the West Douglas Herd Area in 2008. Upon Plaintiffs’ suit, this Court ruled

that the 2008 Gather Plan6 exceeded BLM’s jurisdiction because “[a] prerequisite to removal

under the Wild Horse Act is that BLM first determine that an overpopulation exists and that the

wild free-roaming horses and burros slated for removal are ‘excess animals.’” CWHBC I, 639 F.

Supp. 2d at 97-98. This Court reasoned:

           [BLM] protest[s] that because wild free-roaming horses will continue to
           inhabit the Piceance-East Douglas Herd Management Area, BLM’s
           decision to remove the West Douglas Herd will not result in the removal
           of all the horses historically found in the Douglas Creek wild horse herd
           unit. . . . The argument misses the point. [BLM] admit[s] that “[t]he
           area of wild horse use at the passage of the Act was an area of 187,970
           acres known as the ‘Douglas Creek wild horse herd unit,’” and that the
           herd unit encompassed the area that the West Douglas Herd now
           inhabits. . . . [Management of horses in the Piceance-East Douglas
           HMA] does nothing to remedy BLM’s lack of statutory authority to
           remove non-excess animals historically found in the Douglas Creek herd
           unit, including the West Douglas Herd Area.

Id. BLM is also required to remove the old, sick, and lame horses first, see 16 U.S.C.

§ 1333(b)(2)(A), and, implicitly, remove only the number of horses that are needed to protect the

land in a herd’s traditional area for their “principal[]” but not exclusive use, id. § 1332(c).

               Thereafter, when BLM proposed a new gather of wild horses in the West Douglas

Herd Area in 2010, Plaintiffs filed this suit. In February 2011, BLM withdrew its 2010 proposal

for a gather. See Notice of Withdrawal of September 3, 2010 Decision [Dkt. 27] & Ex. 1. The



6
 The Court labeled the 2008 West Douglas Herd Area Wild Horse Removal Final Decision
Record and Environmental Assessment the “2008 Gather Plan.” Colo. Wild Horse & Burro
Coal., Inc. v. Salazar, 639 F. Supp. 2d 87, 90 (D.D.C. 2009) (“CWHBC I”).


                                                  4
parties now dispute whether the Court should invalidate the 2005 Decision Record, approved in

2007, and declare that BLM has no authority to zero out the West Douglas Herd or any other

herd of wild horses. BLM urges the Court to dismiss this case because, inter alia, it is not ripe

for review.7

               Jurisdiction requires that a claim be ripe for decision. See Nat’l Park Hospitality

Ass’n v. Dep’t of Interior, 538 U.S. 803, 808 (2003) (“The ripeness doctrine is drawn both from

Article III limitations on judicial power and from prudential reasons for refusing to exercise

jurisdiction.” (internal quotation marks and citations omitted)). By requiring that claims be ripe

before adjudicating them, courts promote judicial economy, avoid becoming entangled in

abstract disputes, and ensure a record adequate to support an informed decision when a case is

heard. Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967), abrogated on other grounds by

Califano v. Sanders, 430 U.S. 99 (1977). To show that a claim is ripe, a plaintiff must

demonstrate: (1) the fitness of the issues for judicial decision, and (2) the hardship to the parties

caused by withholding court consideration. Nat’l Treasury Emps. Union v. Chertoff, 452 F.3d

839, 854 (D.C. Cir. 2006) (citing Abbott Labs., 387 U.S. at 149). In a case with circumstances

similar to those here, the Supreme Court resolved a ripeness challenge by considering:

“(1) whether delayed review would cause hardship to the plaintiffs; (2) whether judicial

intervention would inappropriately interfere with further administrative action; and (3) whether




7
  The Court issued a Minute Order (June 24, 2011) after the withdrawal of the 2010 gather plan,
concluding that “BLM’s recent withdrawal of its decision to gather the herd in 2010 does not
effect any change to the allegedly improper decision to eliminate the herd as soon as practicable”
and directed the parties to proceed with briefing. Although the Court found that withdrawal of
the 2010 gather plan did not render Plaintiffs’ challenge to the 2005 Decision Record moot, it
concludes that in the absence of a specific gather plan, the 2005 Decision Record is not ripe for
review.
                                                  5
the courts would benefit from further factual development of the issues presented.” Ohio

Forestry Ass’n v. Sierra Club, 523 U.S. 726, 733 (1998).

               BLM argues that the 2005 Decision Record does not authorize any particular site-

specific action and that any future decision to gather horses in the West Douglas Herd will be

preceded by a gather plan, which requires an environmental review under NEPA and a separate

decision record. Plaintiffs contend that the decision is ready for review because BLM’s prior

attempts to gather the horses demonstrate that BLM refuses to recognize its obligations to wild

horses and that the Court must order it to do so. The problem, of course, with BLM’s general

argument is that the 2005 Decision Record, approved in 2007, very specifically authorized the

removal of all horses from the West Douglas Herd Area, an authorization upon which the White

River Field Office tried to execute in 2008 and 2010. Nonetheless, the Court concludes that the

Complaint should be dismissed on ripeness grounds.

               First, deciding not to rule on the 2005 Decision Record at this time will not result

in hardship to Plaintiffs. Given that BLM must complete an environmental assessment and

propose a separate decision record before any gather of horses in the West Douglas Herd, the

2005 Decision Record has no immediate effect. If BLM issues a new gather plan, Plaintiffs “will

have ample opportunity later to bring [their] legal challenge at a time when harm is more

imminent and more certain.”8 Id. at 734.




8
 Plaintiffs allege that they will experience economic hardship as a result of delay because they
must maintain a constant flow of funds to monitor BLM. Assuming arguendo that this alleged
harm constitutes the type of hardship relevant to a ripeness analysis, it does not outweigh the
other ripeness considerations. See Mount Wilson FM Broadcasters, Inc. v. FCC, 884 F.2d 1462,
1467 (D.C. Cir. 1989) (“Unless the ‘hardship to the parties of withholding court consideration’
outweighs the other factors, we should dismiss this appeal.” (quoting Abbott Labs., 387 U.S. at
149)).
                                                 6
               Second, a decision now would interfere with further administrative action because

BLM still can and, in fact, must, make an excess determination before a gather takes place. See

id. at 735 (“[T]he possibility that further consideration will actually occur before the [p]lan is

implemented is not theoretical, but real.”). By its decision in 2009, this Court ordered BLM to

comply with the Wild Horse Act and to remove only those horses deemed in excess, as the

statute commands. CWHBC I, 639 F. Supp. 2d at 98. BLM is bound by the Court’s order.9

Indeed, BLM states that “the excess determination may be made in the gather plan and

supporting NEPA document” and further that “it is particularly appropriate to make the excess

determination in the gather plan because circumstances on the range may have changed since the

planning document was issued.” Defs.’ Reply [Dkt. 56] at 22.

               Third, a determination of whether the Court would benefit from further factual

development of the issue also weighs in favor of finding that the decision is not yet ripe for

review. It would be premature for the Court to rule on the validity of the 2005 Decision Record

in the absence of a specific gather plan, which must include an excess determination if the plan

directs removal of any horses. Further factual development is necessary prior to the Court’s

review of any future decision to gather the horses.

               Plaintiffs’ interests in the West Douglas Herd are protected. The Court reminds

BLM, as it noted in 2009, that the statute also commands a specific priority for the removal of

excess animals and authorizes removal only of those necessary “to preserve and maintain a

thriving natural ecological balance and multiple-use relationship in that area.” 16 U.S.C.

§ 1332(f). BLM has a difficult task and balance to maintain among different kinds of wild

animals and human endeavors on public lands. The difficulty of the task, however, cannot allow

9
 BLM initially filed a notice of appeal, but then voluntarily moved to dismiss. The appeal was
dismissed. See Order [Dkt. 109].
                                                  7
a disregard of the strictures of the Wild Horse Act. The Court’s 2009 decision imposes a legal

constraint on the White River Resource Management Plan as embodied in the 2005 Decision

Record. If BLM issues a specific gather plan that includes the removal of any horses from the

West Douglas Herd, BLM is required to make a prior reasonable excess determination. Because

only BLM’s 2005 Decision Record and not a specific gather plan is before the Court, the case is

not ripe for review.

                BLM’s motion for summary judgment [Dkt. 47] will be granted. Plaintiffs’

motion for summary judgment [Dkt. 45] will be denied. Defendant-Intervenors’ motion for

summary judgment [Dkt. 49] will be denied as moot. The Complaint [Dkt. 1] will be dismissed

for lack of jurisdiction.



Date: September 13, 2012                                           /s/
                                                    ROSEMARY M. COLLYER
                                                    United States District Judge




                                               8
