Horse News

Ninth Circuit Court Kicks Wild Horses in Gonads, AGAIN

A federal agency is not required to prepare an environmental impact statement for an action with uncertain environmental effects if the agency reasonably predicts that the effects will not be significant based on available evidence. American Wild Horse Campaign v. Bernhardt, 963 F.3d 1001 (9th Cir. 2020).

photo by Terry Fitch of Wild Horse Freedom Federation

The plaintiffs challenged the Bureau of Land Management’s plan to geld wild male horses as part of its program for managing an overpopulation of wild horses in northeastern Nevada. To comply with NEPA, BLM prepared an environmental assessment and issued a finding of no significant impact. The plaintiffs argued that BLM should have prepared an EIS, citing several of the intensity factors that may require an EIS according to the Council on Environmental Quality’s NEPA regulations in effect at the time. Those regulations required agencies to consider whether an action would have significant impacts based on the action’s context and ten factors regarding the intensity of the action’s effects. The plaintiffs also argued that BLM did not adequately address comments suggesting an alternative of surgical vasectomy. In addition, the plaintiffs claimed that BLM violated the Wild Free-Roaming Horses and Burros Act. The court ruled in favor of BLM on all claims, upholding its gelding plan.

Highly Uncertain Effects. The plaintiffs argued that BLM should have prepared an EIS because the effects of its gelding plan were highly uncertain. The court held that BLM reasonably concluded, based on available evidence, that there were no substantial questions as to whether gelding and releasing horses back into the wild would have a significant effect on the environment. The EA acknowledged that there were few studies on the behavior of geldings released into wild, but it predicted that effects would be insignificant based on existing research addressing the behavior of gelded domesticated and semi-feral horses, the natural social behavior of wild horses, and the effects of castration on other species. The record did not contain any evidence affirmatively showing that releasing geldings into the wild could affect herd behavior. The plaintiffs pointed to a National Academy of Sciences report that concluded the effects of releasing geldings could not be predicted; the court determined that this single report was not sufficient to demonstrate that the effects were highly uncertain. Furthermore, the court held that BLM was not required to wait to take action until it could complete an in-progress study on the effects of gelding wild horses.

Highly Controversial Effects. The court rejected the plaintiffs’ claim that BLM should have prepared an EIS because the effects of the gelding plan were highly controversial. The court explained that there was no controversy because the plaintiffs did not identify any evidence that contradicted the BLM’s findings. The court implied that expert opinions cited by the plaintiffs were not credible because they were not based on the experts’ own studies and they contained speculation unsupported by existing research.

Unique Characteristics. The court rejected the plaintiffs’ argument that BLM should have prepared an EIS because its action was in close proximity to cultural resources, i.e., wild horses. The court held that wild horses are not a cultural resource for purposes of NEPA. The court explained that the Wild Horses Act mandated how agencies should manage wild horses and how the environmental effects of those management actions should be evaluated; this specific statute took precedence over NEPA, which is a general law.

Precedent for Future Actions with Significant Effects. The court held that the gelding plan did not create a precedent for future actions with significant effects, which is another intensity factor that may require an EIS. The court explained that the gelding plan did not establish gelding as an accepted strategy for future population management programs, and it was not the first instance of releasing geldings into the wild.

Response to Comments. The court held that BLM’s failure to respond to comments suggesting surgical vasectomy as an alternative was not arbitrary or capricious. The court explained that evidence in the record, including a BLM guidebook, indicated that the effects of vasectomy and gelding were similarly uncertain. Although BLM did not explicitly respond to the comments about vasectomies, the court held this evidence supported BLM’s decision, and it could therefore discern the reasons for BLM’s rejection of vasectomy as an alternative.

Wild Horses Act. The court ruled that BLM complied with the Wild Horses Act’s requirements to consult with the National Academy of Sciences and other experts. The court held that BLM consulted with the National Academy of Sciences by considering its report on gelding and acknowledging the report’s uncertain conclusions in the EA. In addition, the court held, BLM consulted with scientific experts by accepting public comments, responding to the comments, and addressing their substantive concerns in the EA.

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10 replies »

  1. Well, I have to assume that we now are seeing the results of McConnell’s extensive nominations of judges! Which will make it even harder than it has been for any changes to this kind of destruction.

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  2. Was a McConnell/Drumpf judge responsible for this ruling? Is their a link to the filing & the judge’s basis for the ruling? Can the ruling be appealed?

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    • Sorry to say I jumped to the conclusion that was the case. Certainly could be wrong. Mistakes get made no matter who nominated the judges.

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  3. Id really like to see a break down on which 9th circuit judges were involved in this ruling. But 9th district court for district of Nevada, if that is where trial took place can be found in Wikipedia -looks like judges were largely appointed by Obama. https://en.wikipedia.org/wiki/United_States_District_Court_for_the_District_of_Nevada Other judges appointed by Bush, Reagan and Clinton are in Senior status now indicating they have largely retired and apparently – though not clear to me – are being replaced by temporary sitting judges. In any case, seems to me, the case against BLM is not taken seriously. They’re making a huge leap that the BLM works to advantage the people, when nothing further from the truth.

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  4. https://www.leagle.com/decision/infco20200702097

    AMERICAN WILD HORSE CAMPAIGN; Kimerlee Curyl, Plaintiffs-Appellants, v. David BERNHARDT, Secretary of the Department of the Interior; Michael D. Nedd; Jill C. Silvey, Defendants-Appellees.

    United States Court of Appeals, Ninth Circuit.

    Argued and Submitted April 29, 2020 San Francisco, California.

    Filed July 2, 2020.
    Attorney(s) appearing for the Case

    William N. Lawton (argued), Katherine A. Meyer , and William S. Eubanks II , Eubanks & Associates LLC, Washington, D.C., for Plaintiffs-Appellants.

    Anna T. Katselas (argued), Devon Lea Flanagan , Daniela A. Arregui , Holly A. Vance , Andrea L. Berlowe , and Mark R. Haag , Attorneys; Eric Grant , Deputy Assistant Attorney General; Jeffrey Bossert Clark , Assistant Attorney General; Environment and Natural Resources Division, United States Department of Justice, Washington, D.C.; Nancy Zahedi , Assistant Regional Solicitor, Pacific Southwest Region, United States Bureau of Land Management, United States Department of the Interior, Sacramento, California; for Defendants-Appellees.

    Before: Ronald Lee Gilman, Susan P. Graber, and Daniel P. Collins, Circuit Judges.

    OPINION

    GRABER, Circuit Judge:

    Public lands in the American West are home to thousands of wild, free-roaming horses. Congress tasked Defendants, the Secretary of the Department of the Interior and officials from the Bureau of Land Management (“BLM”), with preserving these “living symbols of the historic and pioneer spirit of the West,” while also balancing the needs of other wildlife and livestock that depend on the resources of public lands. 16 U.S.C. § 1331. When wild horses become too numerous for the land to support, Congress has mandated that BLM remove excess horses until it reestablishes ecological balance. Id. § 1333.

    In 2017, BLM determined that there was an overpopulation of wild horses in northeastern Nevada, and it developed a plan to restore ecological balance in the region. In an effort to remove as few horses as possible, BLM plans to adjust the sex ratio of the population, administer fertility control treatments to mares, and geld and release back to the range some male horses.

    Plaintiffs American Wild Horse Campaign and Kimerlee Curyl objected to the “geld and release” component of the plan and brought claims that BLM had violated the National Environmental Policy Act (“NEPA”), the Administrative Procedure Act, and the Wild Free-Roaming Horses and Burros Act. We hold that BLM did not act arbitrarily and capriciously and, accordingly, we affirm the district court’s grant of summary judgment to Defendants.

    Judge Graber:

    https://ballotpedia.org/Susan_Graber

    Ninth Circuit Court of Appeals
    Nomination Tracker
    Fedbadgesmall.png
    Nominee Information
    Name: Susan Graber
    Court: United States Court of Appeals for the Ninth Circuit
    Progress
    Confirmed 230 days after nomination.
    ApprovedNominated: July 30, 1997
    ApprovedABA Rating: Unanimously Well Qualified
    DefeatedQuestionnaire:
    ApprovedHearing: February 25, 1998
    DefeatedQFRs: (Hover over QFRs to read more)
    ApprovedReported: March 5, 1998
    ApprovedConfirmed: March 17, 1998
    ApprovedVote: 98-0

    Graber was nominated to the United States Court of Appeals for the Ninth Circuit by Bill Clinton on July 30, 1997, to a seat vacated by Edward Leavy as Leavy assumed senior status. The American Bar Association rated Graber Unanimously Well Qualified for the nomination.[2] Hearings on Graber’s nomination were held before the United States Senate Committee on the Judiciary on February 25, 1998, and her nomination was reported by U.S. Sen. Orrin Hatch (R-Utah) on March 5, 1998. Graber was confirmed on a recorded 98-0 vote of the U.S. Senate on March 17, 1998, and she received her commission on March 19, 1998.

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  5. Trying yet again to post something here, not sure why nothing is showing up. I’m posting relevant links and this is public information, just not found here (yet). Here’s what I found about this case, and who appointed Judge Graber.

    https://www.leagle.com/decision/infco20200702097

    963 F.3d 1001 (2020)

    AMERICAN WILD HORSE CAMPAIGN; Kimerlee Curyl, Plaintiffs-Appellants, v. David BERNHARDT, Secretary of the Department of the Interior; Michael D. Nedd; Jill C. Silvey, Defendants-Appellees.

    United States Court of Appeals, Ninth Circuit.

    Argued and Submitted April 29, 2020 San Francisco, California.

    Filed July 2, 2020.
    Attorney(s) appearing for the Case

    William N. Lawton (argued), Katherine A. Meyer , and William S. Eubanks II , Eubanks & Associates LLC, Washington, D.C., for Plaintiffs-Appellants.

    Anna T. Katselas (argued), Devon Lea Flanagan , Daniela A. Arregui , Holly A. Vance , Andrea L. Berlowe , and Mark R. Haag , Attorneys; Eric Grant , Deputy Assistant Attorney General; Jeffrey Bossert Clark , Assistant Attorney General; Environment and Natural Resources Division, United States Department of Justice, Washington, D.C.; Nancy Zahedi , Assistant Regional Solicitor, Pacific Southwest Region, United States Bureau of Land Management, United States Department of the Interior, Sacramento, California; for Defendants-Appellees.

    Before: Ronald Lee Gilman, Susan P. Graber, and Daniel P. Collins, Circuit Judges.
    OPINION

    GRABER, Circuit Judge:

    Public lands in the American West are home to thousands of wild, free-roaming horses. Congress tasked Defendants, the Secretary of the Department of the Interior and officials from the Bureau of Land Management (“BLM”), with preserving these “living symbols of the historic and pioneer spirit of the West,” while also balancing the needs of other wildlife and livestock that depend on the resources of public lands. 16 U.S.C. § 1331. When wild horses become too numerous for the land to support, Congress has mandated that BLM remove excess horses until it reestablishes ecological balance. Id. § 1333.

    In 2017, BLM determined that there was an overpopulation of wild horses in northeastern Nevada, and it developed a plan to restore ecological balance in the region. In an effort to remove as few horses as possible, BLM plans to adjust the sex ratio of the population, administer fertility control treatments to mares, and geld and release back to the range some male horses.

    Plaintiffs American Wild Horse Campaign and Kimerlee Curyl objected to the “geld and release” component of the plan and brought claims that BLM had violated the National Environmental Policy Act (“NEPA”), the Administrative Procedure Act, and the Wild Free-Roaming Horses and Burros Act. We hold that BLM did not act arbitrarily and capriciously and, accordingly, we affirm the district court’s grant of summary judgment to Defendants.

    Judge Graber was a Clinton appointee:

    https://ballotpedia.org/Susan_Graber

    Ninth Circuit Court of Appeals
    Nomination Tracker
    Fedbadgesmall.png
    Nominee Information
    Name: Susan Graber
    Court: United States Court of Appeals for the Ninth Circuit
    Progress
    Confirmed 230 days after nomination.
    ApprovedNominated: July 30, 1997
    ApprovedABA Rating: Unanimously Well Qualified
    DefeatedQuestionnaire:
    ApprovedHearing: February 25, 1998
    DefeatedQFRs: (Hover over QFRs to read more)
    ApprovedReported: March 5, 1998
    ApprovedConfirmed: March 17, 1998
    ApprovedVote: 98-0

    Graber was nominated to the United States Court of Appeals for the Ninth Circuit by Bill Clinton on July 30, 1997, to a seat vacated by Edward Leavy as Leavy assumed senior status. The American Bar Association rated Graber Unanimously Well Qualified for the nomination.[2] Hearings on Graber’s nomination were held before the United States Senate Committee on the Judiciary on February 25, 1998, and her nomination was reported by U.S. Sen. Orrin Hatch (R-Utah) on March 5, 1998. Graber was confirmed on a recorded 98-0 vote of the U.S. Senate on March 17, 1998, and she received her commission on March 19, 1998.

    Liked by 1 person

  6. Testing to see if any of my comments will post here. If I’ve been blocked for some mysterious reason I’d like to know that. I’ve tried several times to post information from the WHBA Act as well as information indicating the judge in this case was appointed by President Clinton.

    Liked by 1 person

    • IcySpots, long posts with multiple links will be automatically blocked by the WordPress Anti-Spam software…as was your case.

      On an average, this website is attacked by a minimum of 1,000 spam messages a day…so if this happens in the future, just drop me a note and I will look in and approve your message.

      Liked by 1 person

  7. Also found this of interest, that NEPA does NOT define “cultural resources.” Per their definitions and examples, however, a case can be made that wild horses and burros are indeed covered by NEPA in both intent and letter as regards human interactions both natural and cultural. I am surprised the lawyers in this case didn’t press this point further, even our modern range wars are a cultural phenomenon relating to natural (and unnatural) systems.

    https://www.npi.org/what-are-cultural-resources

    Cultural Resources:

    “The term “cultural resource” is not defined in the National Environmental Policy Act (NEPA) or any other Federal law. However, there are several laws and executive orders that deal with particular kinds of “resources” that are “cultural” in character.” …

    Human Environment:

    “Human environment” shall be interpreted comprehensively to include the natural and physical environment and the relationship of people with that environment (40 CFR 1508.14).

    NEPA’s concern is with the “human environment,” defined as including the natural and physical (e.g., built) environment and the relationships of people to that environment. A thorough environmental analysis under NEPA should systematically address the “human” — social and cultural — aspects of the environment as well as those that are more “natural,” and should address the relationships between natural and cultural.”

    Liked by 1 person

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