In Defense of Animals v. Salazar ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
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IN DEFENSE OF ANIMALS, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 09-2222 (PLF)
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KEN SALAZAR, et al., )
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Defendants. )
__________________________________________)
OPINION
This matter is before the Court on four separate cross-motions for summary
judgment filed, respectively, by (1) plaintiffs In Defense of Animals, Craig C. Downer, and Terri
Farley; (2) defendants Ken Salazar, the Secretary of the United States Department of the Interior,
and various employees of the Interior Department’s Bureau of Land Managment (“BLM”);
(3) defendant-intervenor Safari Club International; and (4) defendant-intervenor the Department
of Wildlife of the state of Nevada. The Court heard oral argument on the motions on May 6,
2010.
After carefully considering the arguments presented by counsel both at oral
argument and in the parties’ memoranda, the relevant legal authorities, the administrative record,
and the record in this case as a whole, the Court concludes that two of the claims brought by the
plaintiffs are moot, and that the plaintiffs lack standing to pursue their other claims.1 The Court
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The documents reviewed by the Court include the following: plaintiffs’ first
amended complaint (“1st Am. Compl.”); plaintiffs’ second amended complaint (“2d Am.
Compl.”); the administrative record (“A.R.”); plaintiffs’ motion for summary judgment
(“PMSJ”); plaintiffs’ motion for injunctive relief, Ex. 1 (“Downer Affid.”); the federal
therefore will deny all four pending motions for summary judgment and dismiss the plaintiffs’
second amended complaint.
I. BACKGROUND
As more fully described in the Court’s Opinion denying the plaintiffs’ motion for
a preliminary injunction, this action concerns the decision of the Bureau of Land Management
(“BLM”) to remove between two- and three-thousand wild horses from the Calico Mountains
Complex (“the Complex”), a 550,000-acre expanse of land located in Nevada’s Humboldt and
Washoe counties. See In Defense of Animals v. Salazar, 675 F. Supp. 2d 89, 91-92 (D.D.C.
2009). Under the Wild Free-Roaming Horses and Burros Act, 16 U.S.C. § 1331 et seq. (“Wild
Horse Act”), BLM is tasked with “protect[ing] and manag[ing] wild free-roaming horses and
burros as components of the public lands . . . in a manner that is designed to achieve and
maintain a thriving natural ecological balance on the public lands.” 16 U.S.C. § 1333(a). As
part of that obligation, BLM is required by statute to “determine appropriate management levels
of wild free-roaming horses and burros . . . and determine whether appropriate management
levels should be achieved by the removal or destruction of excess animals, or other options (such
as sterilization, or natural controls on population levels).” Id. § 1333(b)(1). “Where [BLM]
defendants’ cross-motion for summary judgment; the cross-motion for summary judgment filed
by Nevada’s Department of Wildlife; Safari Club International’s cross-motion for summary
judgment; the plaintiffs’ opposition to the cross-motions/reply to the defendants’ opposition to
the plaintiffs’ motion for summary judgment (“P. Opp.”); the replies of the federal defendants
and the defendant-intervenors to the plaintiffs’ motion for summary judgment; plaintiffs’ reply to
defendants’ opposition to the plaintiffs’ motion for injunctive relief, Ex. 1 (Supplemental
Affidavit of Craig Downer) (“Supp. Downer Affid.”); plaintiffs’ reply to defendants’ opposition
to plaintiffs’ motion for injunctive relief, Ex. 2 (“Farley Affid.”); P. Opp., Ex. 2 (“Downer
Decl.”); P. Opp., Ex. 3 (“Farley Decl.”); and the transcript of oral argument (May 6, 2010)
(“Tr.”).
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determines . . . that an overpopulation [of wild horses or burros] exists on a given area of the
public lands and that action is necessary to remove excess animals, [it] shall immediately remove
excess animals from the range so as to achieve appropriate management levels.” Id.
§ 1333(b)(2).
In 2009, estimating that the number of horses in the Calico Mountains Complex
exceeded the designated appropriate management level by over 2,000 horses, BLM developed a
plan to round up or “gather” “excess” horses from the Complex and place them in temporary
holding corrals. A.R. at 7016. Once placed in short-term holding facilities or temporary corrals
located within or just outside the Complex, individual horses would be “inspected by facility
staff and on-site contract [v]eterinarians to observe health and ensure the animals ha[d] been
cared for humanely.” Id. at 7017. Animals in poor physical condition might be euthanized. Id.
Remaining excess horses “would be transported to BLM facilities for adoption, sale, or long-
term holding.” Id. Such long-term holding facilities are located in Kansas, Oklahoma, and
South Dakota. In Defense of Animals v. Salazar, 675 F. Supp. 2d at 92. Pursuant to BLM’s
gather plan, if BLM gathered too many horses — more than the number that needed to be
removed in order to reach an appropriate management level — non-excess horses would be
released back to the range. A.R. at 7018.
The plaintiffs filed this lawsuit in December of 2009, seeking a preliminary
injunction that would prevent the occurrence of the proposed roundup. Plaintiffs asserted that
the method of gathering, sorting, and removing excess horses proposed by BLM violated the
Wild Horse Act and should be enjoined under the Administrative Procedure Act, 5 U.S.C.
§§ 701 et seq. See 1st Am. Compl. ¶¶ 45-48, 55-58. They also contended that placing healthy,
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unadopted horses in long-term holding facilities for indefinite periods of time was not permitted
under the terms of the Wild Horse Act. Id. ¶¶ 49-54.
In an Opinion issued on December 23, 2009, the Court denied the plaintiffs’
motion for a preliminary injunction, allowing the proposed roundup of excess horses to move
forward. It concluded that the plaintiffs were not likely to succeed on their claims that the
method of gathering the horses proposed by BLM was contrary to the Wild Horse Act and so
concluded that the gather should not be prevented. In Defense of Animals v. Salazar, 675 F.
Supp. 2d at 95-98. At the same time, the Court suggested that the plaintiffs might prevail on
their claim that long-term holding of excess horses was not authorized by the Wild Horse Act,
which appears to provide only two means of dealing with unadopted, healthy excess horses:
euthanization and sale, possibly for slaughter. Id. at 99-102. The Court nevertheless denied the
plaintiffs’ motion for a preliminary injunction related to that claim because it concluded that the
plaintiffs had failed to establish that they would suffer an imminent and tangible irreparable
injury in the absence of an injunction. Id. at 102-03.
After the Court denied the plaintiffs’ motion for a preliminary injunction, the
Court allowed Safari Club International and Nevada’s Department of Wildlife to intervene as
defendants. Also after the Court’s initial ruling, the plaintiffs amended their complaint to add a
claim under the National Environmental Policy Act, 42 U.S.C. §§ 4231 et seq. (“NEPA”). See
2d Am. Compl. ¶¶ 74-77. They contended that the Environmental Assessment prepared by BLM
in anticipation of the gather of horses from the Complex had unlawfully failed to consider the
impact of long-term holding on the removed horses themselves. Id. ¶ 75.
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BLM conducted the proposed gather of horses from the Complex between
December 28, 2009 and February 5, 2010. PMSJ at 1; DMSJ at 10. Approximately 2,000 wild
horses were herded together and placed in a temporary holding facility in Fallon, Nevada, where
they will remain at least until May 26, 2010, after which they may be relocated to long-term
holding facilities in the Midwest. PMSJ at 1, 9 n.7.
II. DISCUSSION
The current iterations of the plaintiffs’ claims fall into two categories: those
claims that challenge the legality of the means by which the gather of horses from the Complex
was conducted, see 2d Am. Compl. ¶¶ 60-63, 70-73, and those asserting that the relocation of
excess horses to long-term holding facilities in Kansas, Oklahoma, and South Dakota violates
the Wild Horse Act and/or was insufficiently considered by the agency in violation of NEPA.
See id. ¶¶ 64-69, 74-77. Because the gather in question has already occurred, the first category
of claims is now moot and thus is not justiciable. Because the plaintiffs have failed to establish a
causal link between their asserted injury and BLM’s use of long-term holding facilities, they lack
standing to bring the second set of claims.
A. Claims Challenging the Gather
“It is a basic constitutional requirement that a dispute before a federal court be ‘an
actual controversy . . . extant at all stages of review, [and] not merely at the time the complaint is
filed.’” Newdow v. Roberts, No. 09-5126, slip. op. at 9 (D.C. Cir. May 7, 2010) (quoting Steffel
v. Thompson, 415 U.S. 452, 459 n.10 (1974)) (alterations in original). “‘[W]hen the issues
presented [in a case] are no longer ‘live’ or the parties lack a legally cognizable interest in the
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outcome,’” the case is moot and hence nonjusticiable. Ramirez v. U.S Customs & Border
Protection, Civil Action. No. 07-65, 2010 WL 1783265, at *8 (D.D.C. May 5, 2010) (quoting
U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 396 (1980)). In the same vein, “[i]f events
outrun the controversy such that the court can grant no meaningful relief, the case must be
dismissed as moot.” McBryde v. Comm. to Review Council Conduct, 264 F.3d 52, 55 (D.C. Cir.
2001).
In this case, the gather that the plaintiffs challenge as unlawful has already taken
place, and so it would seem that “[i]t is impossible for the court to grant any effectual relief
whatever” with regard to it. Fund for Animals, Inc. v. U.S. Bureau of Land Mgmt., 460 F.3d 13,
22 (D.C. Cir. 2006) (ruling that challenges to already completed gathers were moot) (internal
quotation marks and citations omitted). The plaintiffs, however, argue that their claims fall
within the exception to the mootness doctrine for actions “capable of repetition, yet evading
review.” P. Opp. at 17-20.
That exception is not available to the plaintiffs here. Plaintiffs had the
opportunity to pursue further review of the legality of the proposed gather by appealing this
Court’s decision denying their motion for a preliminary injunction. “Had plaintiffs pursued an
appeal of that denial and had the preliminary injunction been granted, their case would not have
become moot.” Newdow v. Roberts, No. 09-5126, slip op. at 9. Having failed to take advantage
of the opportunity for appeal, however, the plaintiffs are now barred from claiming the “capable
of repetition, yet evading review” exception: “The capable-of-repetition doctrine is not meant to
save mooted cases that may have remained live but for the neglect of the plaintiff.” Id. at 10.
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Consequently, those counts of plaintiffs’ complaint that challenge the manner of conducting the
Calico Mountains Complex gather must be dismissed.2
B. Claims Challenging Relocation and Long-Term Holding
The plaintiffs’ two remaining claims assert that (1) BLM’s plans to relocate
horses removed from the Calico Mountains Complex to long-term holding facilities in the
Midwest is not authorized by the Wild Horse Act, see 2d Am. Compl. ¶¶ 64-69, and (2) the
agency violated NEPA by failing to consider the effects of long-term holding on the horses
removed from the Complex. Id. ¶¶ 74-77. With respect to both claims, the plaintiffs seek a
declaratory judgment. They also seek an injunction that would bar BLM from transporting the
removed horses from their current location in short-term holding facilities in Nevada to long-
term holding facilities in the Midwest. See id. ¶ E.
In its Opinion denying the plaintiffs’ motion for a preliminary injunction, the
Court indicated that the plaintiffs had shown a likelihood of success on the merits as to their
claim that the relocation and long-term holding of excess horses was not permitted under the
Wild Horse Act. See In Defense of Animals v. Salazar, 675 F. Supp. 2d at 99-102. At that point
in the litigation, however, the parties had not discussed in any depth, and so the Court did not
analyze, the adequacy of the plaintiffs’ standing to bring those claims. See id. at 103 n.9
(explaining why standing would not be addressed). Now that the issue has been briefed and
2
Furthermore, because decisions with respect to future removals and relocations of
wild horses will be “highly fact-specific,” and the manner in which particular herds will be
managed in the future “is anyone’s guess,” plaintiffs’ claims regarding the gather in this case do
not raise issues that are capable of repetition, yet evading review. Fund for Animals, Inc. v. U.S.
Bureau of Land Mgmt., 460 F.3d at 22-23.
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considered more fully, the Court concludes that the plaintiffs lack standing to bring their claims
challenging long-term holding because the plaintiffs’ asserted injuries are not sufficiently
connected or “traceable” to the agency action in question.
Federal courts are courts of limited jurisdiction, with the ability to hear only cases
entrusted to them by a grant of power contained in either the Constitution or in an act of
Congress. See, e.g., Beethoven.com LLC v. Librarian of Congress, 394 F.3d 939, 945 (D.C. Cir.
2005); Hunter v. District of Columbia, 384 F. Supp. 2d 257, 259 (D.D.C. 2005). A federal court
has no subject matter jurisdiction where the plaintiffs lack standing. See Worth v. Jackson, 451
F.3d 854, 857-58 (D.C. Cir. 2006). In order to establish standing under Article III of the United
States Constitution, a plaintiff must show, at an “irreducible constitutional minimum,” that (1) it
has suffered a concrete injury in fact — the invasion of a legally protected interest; (2) the injury
is fairly traceable to the challenged action of the defendants (a causal connection); and (3) a
favorable decision on the merits likely will redress the injury. Sprint Commc’ns Co., L.P. v.
APPC Servs., Inc., 128 S. Ct. 2531, 2535 (2008) (citing Lujan v. Defenders of Wildlife, 504 U.S.
555, 560-61 (1992)); In re Navy Chaplaincy, 534 F.3d 756, 759-60 (D.C. Cir. 2008).
For claims alleging a “procedural injury” — such as NEPA claims — “the normal
standards for redressability and immediacy” are somewhat relaxed. See Lujan v. Defenders of
Wildlife, 504 U.S. at 572 n.7. Nevertheless, “the omission of a procedural requirement does not,
by itself, give a party standing to sue.” Center for Biological Diversity v. U.S. Dep’t of the
Interior, 563 F.3d 466, 479 (D.C. Cir. 2009) (internal quotation marks and citation omitted).
There still must be a causal connection between the injury alleged and the defendants’ conduct.
A would-be plaintiff must “show not only that the defendant’s acts omitted some procedural
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requirement, but also that it is substantially probable that the procedural breach will cause the
essential injury to the plaintiff’s own interest.” Id.; see also Nuclear Info. & Res. Serv. v.
Nuclear Regulatory Comm’n, 509 F.3d 562, 567 (D.C. Cir. 2007); Fla. Audubon Soc’y v.
Bentsen, 94 F.3d 658, 669 (D.C. Cir. 1996) (“[t]o prove causation, a [NEPA] plaintiff . . . must
demonstrate that the particularized injury that the plaintiff is suffering or is likely to suffer is
fairly traceable to the agency action that implicated the need for” an environmental impact
statement).
Plaintiffs Terri Farley and Craig C. Downer claim that they have been injured by
the removal of a large number of horses from the Calico Mountains Complex. See, e.g., Farley
Affid. ¶¶ 7-8; Supp. Downer Affid. ¶¶ 2-3.3 They maintain that they intend to visit the Complex
in the future to view the wild horses in the animals’ natural habitat, both for personal enjoyment
and to further their professional interests in wild horses, and they contend that those interests
will be impaired by the greatly reduced size of the herds in the Complex resulting from the
gather of excess horses. See Farley Affid. ¶¶ 7-8; Farley Decl. ¶¶ 27, 32; Downer Decl. ¶¶ 53-
56.4 For present purposes, the Court assumes, without deciding, that plaintiffs’ rather conclusory
3
Regarding the standing of In Defense of Animals to bring this case, the plaintiffs
have made only conclusory suggestions to the effect that In Defense of Animals’ “constituents
. . . are interested in and affected by the BLM activities at the Calico Mountain Complex.”
PMSJ at 4-5. Such vague and unsupported assertions cannot establish representational standing,
see, e.g., Int’l Bhd. of Teamsters v. Transp. Security Admin., 429 F.3d 1130, 1134-35 (D.C. Cir.
2005), and the plaintiffs have not argued that In Defense of Animals has organizational standing.
Consequently, the Court has subject matter jurisdiction over this dispute only if one of the
individual plaintiffs, Mr. Downer or Ms. Farley, has standing to raise the plaintiffs’ claims.
4
As in its prior Opinion in this case, the Court uses the terms “remove” and
“removal” to refer to the permanent separation of horses from their native range. See In Defense
of Animals v. Salazar, 675 F. Supp. 2d at 97 & n.5. A horse is “removed” once BLM has
gathered it (herded it from the range and into a temporary corral) and determined that it is an
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allegations suffice to establish a concrete and particularized injury resulting from BLM’s
separation of so many horses from the Complex. Compare Center for Biological Diversity v.
U.S. Dep’t of the Interior, 563 F.3d at 479 (finding a cognizable interest based on affidavits
much more specific, detailed, and precise than those in this case). The plaintiffs nevertheless
have failed to satisfy standing’s causation requirement. Their asserted injury results from the
removal of wild horses from the Complex, not from the placement of removed horses in long-
term holding facilities.
“[S]tanding is assessed as of the time a suit commences,” Del Monte Fresh
Produce Co. v. United States, 570 F.3d 316, 324 (D.C. Cir. 2009), and “is determined on a
claim-by-claim basis.” North Carolina Fisheries Ass’n, Inc. v. Gutierrez, 518 F. Supp. 2d 62, 82
(D.D.C. 2007) (citing DaimlerChrysler v. Cuno, 547 U.S. 332, 351-52 (2006)). At the
commencement of this litigation, the direct threat to the plaintiffs’ interest was BLM’s decision
that more than 2,000 horses in the Calico Mountains Complex were in excess of the appropriate
management level for that range and had to be removed from the area. See 16 U.S.C.
§ 1333(b)(2) (requiring BLM to “remove excess animals from the range” “immediately” once it
determines “that an overpopulation exists” there and “that action is necessary to remove excess
animals”); A.R. at 7009 (“BLM has determined that 2,468 excess wild horses are present within
the Complex and need to be removed.”). The plaintiffs, as explained above, brought two
categories of claims challenging BLM’s plan for removal and disposition of excess horses: one
set that contested the legality of the roundup process by which horses would be physically
transported from the Complex, and one set that denied BLM’s authority to place gathered excess
“excess” horse that cannot be returned to the range. See id.10
horses in long-term holding facilities. The causal connection between the roundup and the
plaintiffs’ asserted injuries is clear: the roundup effected the separation of excess horses from the
range, thus reducing the size of the Complex’s herds in the manner complained of by the
plaintiffs. In contrast, the causal relationship between long-term holding and the removal of
many horses from the range has not been established; the plaintiffs have not shown that the
removal of excess horses from the Complex was or is “fairly traceable” to the agency’s plan to
place some horses in long-term holding facilities in the Midwest.
Although both the plaintiffs’ motion for summary judgment and their opposition
to the defendants’ cross-motion address the issue of standing at some length, see PMSJ at 4-7;
P. Opp. at 16-20, neither document elucidates the necessary causal nexus between long-term
holding and the plaintiffs’ asserted injury. The closest the plaintiffs come to such an explanation
is their assertion that “transfer to the long-term holding facilities in the Midwest would
permanently remove the gathered Calico wild horses from their home on the range.” P. Opp. at
16. This statement, however, ignores the undisputed fact that BLM’s determination that a
certain number of gathered horses are “excess” results in the permanent separation of those
horses from the range. As plaintiffs’ counsel conceded at oral argument, see Tr. at 14-15, horses
cannot be returned to the range once they have been gathered and deemed “excess.” See also In
Defense of Animals v. Salazar, 675 F. Supp. 2d at 103 (suggesting that the Wild Horse Act does
not appear to give BLM authority to release excess horses back onto the range from which they
came). The subsequent placement of the removed horses in long-term holding facilities does not
affect that result.
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Perhaps the plaintiffs mean to suggest that if BLM were not permitted to place the
horses in long-term holding facilities, the agency would not enact its gather plan and so would
not remove excess horses from the Complex at all. Even assuming such a theory could support a
finding of causation sufficient to confer standing, the plaintiffs have failed to point to any
evidence in the record that would lift that theory out of the realm of speculation. If BLM were
unable to place horses in long-term holding facilities, there is no reason to believe that it would
cease its efforts to remove excess horses from the public lands in general, as the Wild Horse Act
specifically instructs it to do, or from the Calico Mountains Complex in particular. If prevented
from resorting to long-term holding, the agency might simply redouble its efforts to effect the
adoption of excess horses. It might, as the plaintiffs suggested at oral argument, place excess
horses into areas of the public lands that are not currently overpopulated by wild horses. Tr. at
12-13.5 Or it might, as Congress has directed it to do, decide to euthanize healthy, unadoptable
horses, assuming that it could secure funding to do so. See In Defense of Animals v. Salazar,
675 F. Supp. 2d at 96, 99-102. The plaintiffs can only speculate that the agency simply might
cease its efforts to remove excess horses — and such speculation unsupported by evidence does
not support a finding of standing. See, e.g., Center for Law & Educ. v. Dep’t of Educ., 396 F.3d
5Indeed, at oral argument the plaintiffs actively encouraged the Court to order the
agency to release excess Calico horses into areas of the public lands that have been inhabited by
wild horses in the past but are not currently overpopulated by them. See Tr. at 14-15. But such
a measure is unconnected to the plaintiffs’ asserted injuries, all of which relate to the removal of
the horses from a specific place — the Calico Mountains Complex — and not to their removal
from public lands in general. See, e.g., PMSJ at 6-7 (explaining the plaintiffs’ interest in and
connections to the Calico Mountains Complex and the horses there). This mismatch between
asserted injury and requested remedy is perhaps at least partially explained by the fact that the
remedy was first requested at oral argument, not in the complaint or any of the plaintiffs’ motion
papers. See, e.g., Tr. at 12-13, 30.
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1152, 1159 (D.C. Cir. 2005) (“Unadorned speculation will not suffice to invoke the judicial
power.” (citation and internal quotation marks omitted)); Huddy v. FCC, 236 F.3d 720, 723
(D.C. Cir. 2001) (argument that challenged action “just might” lead to alleged injury insufficient
to establish standing).
The plaintiffs have thus failed to establish the existence of causation, a necessary
ingredient of constitutional standing, with regard to either of their claims challenging long-term
holding. As a substantive matter, the plaintiffs have not shown that there exists a causal link
between long-term holding, whether or not authorized by the Wild Horse Act, and their asserted
injury: the removal of excess horses from the Calico Mountains Complex. As for the claimed
procedural injury under NEPA, “[t]he chain of causation between the alleged procedural
violation and the concrete interest is speculative at best.” Center for Law & Educ. v. Dep’t of
Educ., 396 F.3d at 1159. The plaintiffs have failed to demonstrate that it is “substantially
probable” that BLM’s allegedly unlawful failure to consider the effects of long-term holding on
horses has caused or “will cause the essential injury to the plaintiff’s own interest.” Center for
Biological Diversity v. U.S. Dep’t of the Interior, 563 F.3d at 479 (internal quotation marks and
citation omitted).
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III. CONCLUSION
For the foregoing reasons, the Court lacks subject matter jurisdiction over the
plaintiffs’ claims, and this litigation cannot go forward. Because this Opinion disposes of the
plaintiffs’ claims but does not adjudicate them on their merits, the plaintiffs’ complaint must be
dismissed, and the pending cross-motions for summary judgment will be denied. An Order
consistent with this Opinion shall issue this same day.
SO ORDERED.
/s/____________________________
PAUL L. FRIEDMAN
United States District Judge
DATE: May 24, 2010
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