American Horse Protection Association, Inc. v. Kleppe

Civil No. 76-1455 (D.D.C. September 9, 1976)

The court declares the proposed wild horse roundup near Challis, Idaho to be illegal and permanently enjoins the roundup until all requirements of NEPA and the Wild Free-Roaming Horses and Burros Act have been followed. The court finds that defendants violated the Wild Horse Act in two respects: first, the proposed roundup would violate § 3(b) of the Act, which requires "humane" disposal of excess animals, because there were no plans for professional veterinary assistance at the roundup; secondly, the Act mandates that management of the wild herds be carried out at the "minimum feasible level," but BLM failed to consider an alternative plan that would have been a less drastic means of population control. Furthermore, because BLM is under court order to draw up an environmental impact statement on the livestock grazing plans for the Challis Region, Natural Resources Defense Council v. Morton, 388 F. Supp. 829, 5 ELR 20327 (D.D.C. 1974), the roundup should not proceed because it would foreclose consideration in the impact statement of an alternative use pattern, which would have restricted livestock grazing in certain areas to allow larger numbers of wild horses in those areas. In addition, the court concludes that the proposed roundup is arbitrary, capricious, and an abuse of discretion under the two laws, because the data on which BLM based its Challis Wild Horse Management Plan is incomplete, and undisputed testimony contradicted the Plan's conclusions.

Counsel for Plaintiffs
Robert C. McCandless
Bernard Fensterwald, Jr.
Russell J. Gaspar
Fensterwald & McCandless
1707 H St., NW
Washington DC 20006
(202) 223-8440

Murdaugh Stuart Madden
2100 L St., NW
Washington DC 20037
(202) 833-3360

Roger Kindler
Humane Society of the United States
2100 L St., NW
Washington DC 20037
(202) 452-1100

Counsel for Defendants
John E. Lindskold
Department of Justice
Washington DC 20530
(202) 739-2654

James Coda
Office of the Solicitor
Department of the Interior
Washington DC 20240
(202) 743-4444

[6 ELR 20802]

Richey, J.:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This case came on for trial before the court, without a jury, and upon consideration of the testimony and exhibits received in evidence, the arguments of counsel, and after weighing the credibility of the witnesses for the parties, and also in accordance with the findings and conclusions of law delivered orally by the court from the bench at the conclusion of the trial, the court, on this 9th day of September, 1976, hereby makes the following written findings of fact and conclusions of law on the merits.

FINDINGS OF FACT

1. Plaintiffs, the American Horse Protection Association and the Humane Society of the United States, bring this action against various named officials of the Department of the Interior for a Declaratory Judgment declaring a proposed roundup of wild horses near Challis, Idaho, to be illegal. Plaintiffs also seek permanent injunctive relief.

2. Plaintiffs allege that the roundup is in violation of the Wild Free-Roaming Horses and Burros Act, 16 U.S.C. §§ 1331 et seq. (the Wild Horse Act because they have developed the proposed roundup plan without having acquired either reliable or adequate data §§ 551 et seq., and various federal statutes relating to humane treatment for animals.

3. Plaintiffs contend, and the court finds, that NEPA has been violated because the roundup will take place prior to the completion of the environmental impact statement (EIS) on the proposed domestic livestock grazing program in the Challis area. Plaintiffs further contend, and the court so finds, that the roundup violates the Wild Horse Act because it will not be conducted under humane conditions, and at the minimum feasible level. Further, the court finds that the defendants have abused their discretion under the Wild Horse Act because they have developed the proposed roundup plan without having acquired either reliable or adequate data on such factors as the size and composition of the herd, on which point the evidence was conflicting and confusing at best in light of the testimony offered by the defendants' witnesses.

4(a). Section 1 of the Wild Free-Roaming Horses and Burros Act of 1971, 16 U.S.C. § 1331, articulates the findings and policy determinations upon which Congress premised the Act. This section states:

Congress finds and declares that wild free-roaming horses and burros are living symbols of the historic and pioneer spirit of the West; that they contribute to the diversity of life forms within the Nation and enrich the lives of the American people; and that these horses and burros are fast disappearing from the American scene. It 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.

(b) Section 3(a) of this same Act, 16 U.S.C. § 1333(a), clearly and unequivocally states that "[a]ll management activities shall be at the minimal feasible level . . . ." which the court finds not to have been the case here. (See finding 3, supra).

5. The roundup of wild horses, which is proposed in the document in evidence entitled "Challis Wild Horse Management Plan," was to take place over a 90-day period beginning August 10, 1976, until at least 130 horses but not more than 260 wild horses were removed. On August 9, 1976, a temporary restraining order was issued enjoining the roundup until August 19, 1976, and was extended by consent of the parties until a hearing on the merits of the eatire case was held, which took place on August 30-31, and September 1, 1976.

6. The "Challis Wild Horse Management Plan" is the product of five years of planning initiated in alleged accordance with the Bureau of Land Management (BLM) multiple land-use planning [6 ELR 20803] system set forth in the BLM Manual (§§ 1601-1608). The BLM Planning System, which was said to have been developed over a 4-year period beginning in 1965, was first published in July 1969, and was revised in part in 1973 and also in 1975. This planning included the consideration of a number of "recommendations" with regard to management of wild horses and included some incomplete analysis of the impacts of such recommendations on BLM's management responsibilities, not only with respect to wild horses, but also with respect to livestock and wildlife.

7. In furtherance of its planning process, BLM initiated a study to determine the maximum and minimum number of wild horses that could be managed in a humane manner in the Challis Planning Unit. Estimates were developed over the course of the 2 1/2 year study with respect to the movements, number, forage inventory and requirements, habitat needs, territorial needs, sex ratios, effects of inbreeding, population dynamics, and interrelations with domestic livestock and big game. As hereinafter set forth, the court finds many of these estimates to be unreliable.

8. The aforesaid study revealed that the wild horse population was increasing by the year although, here again, the evidence on this point was estimated and speculative at best. Inventories of wild horses were conducted by several aerial surveys each year. Inventories, according to the government witnesses, produced an approximate count of 150 horses in 1971, 214 horses in 1972, 276 horses in 1973, 355 horses in 1974, and 407 horses in 1975. The annual rate of increase of the herd was estimated at 28 percent in 1973, and at almost 29 percent in 1974. However, the rate of increase dropped to an estimated 18 percent in 1975. During this period the number of big game wildlife and domestic livestock allegedly remained relatively the same.

9. The study revealed that in the summer the horses occupy the higher elevations somewhere between 7,000 and 9,000 feet. Most bands in the herd have a general home range and move little during any time of the year. As snow comes, some horses seek lower or intermediate elevations while others remain at high elevations. Domestic livestock graze in the wild horse area on an average of 3 to 4 months a year, primarily during the summer.

10. The study revealed that both cattle and horses subsist principally on forage or grasses. The wild horse diet was determined from fecal analyses over a 15-month period, and consists of 91 percent forage or grasses in the summer, about 80 percent during the fall, and dropping to a low of 60 percent during the winter. Also, actual forage competition between horses and cattle is lessened because horses perfer the higher elevations and steeper country and generally feed further from water and other kinds of vegetation.

11. A range survey recheck of the wild horse area was made by the defendants' agency in the summer of 1974 and spring of 1975 to determine the carrying capacity of the area for wild horses. The total acres, total Animal Unit Months (AUM's), and the carrying capacity for cattle, wild horses, antelope, deer, and elk were approximated. The survey predicted sufficient forage available for wild horses in the summer in all but 3 of the 8 allotments. As a result of the defendants' own figures, the AUM's available in the area can support at least 582 horses in the summer.

12. The entire Challis unit contains approximately 260,000 acres. A study conducted by defendants' agents in late winter 1975 and early spring 1975 revealed that because of deep snow only about 91,642 acres (or about 54 percent of the total of 168,648 acres in the wild horse area) was available to horses in the winter. However, use patterns of the horses suggest that not all of the winter range is being utilized, and that the horses concentrate on preferred locations.

13. The 1975 winter study by defendants' agents concluded that as a result of critical winter range conditions, the wild horse area can support only about one-half the number of horses that can be supported during the summer, or approximately 300 horses. The study recommended that the wild horse herd be managed at a minimum of 150 and a maximum of 300 horses.

14. The results of the wild horse study were summarized in the proposal for the management of wild horses in the Challis Planning Unit, entitled the "Challis Wild Horse Management Plan" and dated January 26, 1976. The Plan proposed that a gathering of wild horses be initiated in the fall of 1976 to reduce the population to about 150, and that a gathering be accomplished every three years or as the population approached 300.

15. An environmental assessment was prepared, entitled an "Environmental Analysis Record" (EAR), concerning the "proposed action" of initiating the Challis Wild Horse Management Plan. The EAR described the alleged rapid growth of the herd, the alleged limited winter range capable of supporting only a maximum of about 300 horses, and the alleged poor condition of the range in the wild horse area. The EAR recognized that accidental death to horses could occur in the roundup.

16. The Challis Wild Horse Management Plan and the EAR were sent to BLM, Washington, for review and comment. By letter of June 15, 1976, BLM, Washington concluded that the adoption and implementation of the management plan did not constitute a major federal action significantly affecting the quality of the human environment, and approved the management plan authorizing the roundup.

17. In early July, invitations for bid were issued for the capture of between 130 and 260 wild horses within a 90-day period. The contract provided for a penalty of $25 for each horse under the 130 minimum level failed to be gathered. The contractor was directed to begin on August 10, 1976.

18. Defendants have been ordered by Judge Flannery in Natural Resources Defense Council, Inc. v. Morton, 388 F. Supp. 829 [5 ELR 20327] (D.D.C. 1974), to prepare a comprehensive environmental impact statement concerning the domestic livestock grazing program in and for the entire 260,000 acres of the Challis Planning Unit. The Challis EIS is the first of 212 such statements to be written for various areas of federal public lands managed by the defendants and is to serve as the model for the preparation of the remaining 211 grazing EIS's over a 13-year period. It was scheduled for completion in June 1976. As a result, in mid-July 1975, BLM initiated the livestock activity plans for 16 allotments within the Challis Planning Unit, entitled Allotment Management Plans (AMP's). The AMP's were premised upon the assumption that the wild horse population would be maintained at the 150-300 level. However, as hereinafter indicated, reliance on this assumption was and is contrary to the evidence and the law. The proposed AMP's were completed in late August 1976.

19. The preparation of the draft EIS on the domestic livestock grazing program for the Challis Planning Unit was initiated in late August 1975. The proposed action was also premised upon the assumption that wild horse numbers would be held at 150-300 as established in the Challis Wild Horse Management Plan. After a 3-month extension under Judge Flannery's order, the draft EIS was published in June 1976. The entire EIS review process of the BLM with respect to livestock grazing programs and alternatives thereto remain under the continuing jurisdiction of Judge Flannery pursuant to his order in NRDC v. Morton, supra.

20. BLM's studies indicate the presence of approximately 4,000 domestic cattle and 100 sheep grazing on the Challis Unit during the spring, summer, and early fall of each year. These domestic livestock allegedly consume some 60 percent of the forage produced in the Challis Unit each year.

21. The Challis Region contains the only wild horses in the Salmon District of Idaho.

22. Defendants' last aerial inventory of the Challis Unit was conducted on August 22, 1975. It indicated approximately 407 wild horses in the Challis Unit. No actual count of the wild horse population has been conducted since August 1975, and the figures derived from the last inventory are uncertain and speculative at best, according to the evidence.

23. Defendants estimate that there are approximately 509 wild horses currently occupying the Challis Unit. This estimate by the defendants' agents was derived by multiplying the result of the 1975 inventory by an estimated birth rate of 25 percent.

24. The defendants chose this estimated birth rate of 25 percent to project the wild horse population for purposes of the roundup in spite of the fact that last year's birth rate was less than 18 percent and despite the fact that the utilization of a 25 percent rate of reproduction contradicts the conclusion of the defendants' own expert, Mr. Englebright, who stated that last year's rate decline was in large part a result of the growing population of the herd which condition would continue to depress the birth rate during 1976. In addition, the use of a 25 percent rate is clearly at odds with the testimony of plaintiff's expert, Ms. Ryden, whose testimony the court finds to be entirely reliable and credible, and whose testimony indicates a wide-ranging and in-depth knowledge of the subject matter of this lawsuit. On the basis of many years of studying and [6 ELR 20804] writing about wild horses, she testified that such a birth rate "exceeds credibility" and would in fact be difficult to achieve even in captivity. Accordingly, the court finds that the figures computed by the defendants must be considered to be meaningless data.

25. No actual sex or age inventory has ever been conducted of the Challis wild horse population, and all figures in the defendants' studies are estimates, and unreliable. For example, Ms. Ryden testified, and the court finds, that the projected percentage of mares in the herd — 60 percent — is unsupported by reliable evidence. Furthermore, no accurate inventory has ever been conducted of the number of "branded" (privately owned) horses present in the inventories of total wild horse population.

26. Under the defendants' proposed roundup plan, veterinarians would not be present on the roundup site at all times to attend to any injuries that would be incurred by the horses if the proposed roundup were permitted to go forward. The undisputed testimony indicates that the nearest veterinarian maintains his office some 30 miles from the roundup site and thus would not be available at all times when necessary. Moreover, it appears from the evidence that the defendants have made no contingency plans for summoning additional veterinarians in the event that the nearest veterinarian is unavilable for unforeseen reasons or in the event that injuries of unforeseen magnitude occur.

27. The planning for reduction of the wild horse population which would result in the proposed large-scale roundup has failed to give proper and appropriate consideration to less drastic alternative means of population control which would be more humane and less likely to cause injury to wild horses. In particular, the possible use of smaller-scale and more gradual roundups in potentially more favorable sites was not adequately assessed prior to the decision to proceed with the implementation of this roundup in the manner proposed.

28. Inadequate consideration was also given by the defendants to alternatives to the proposed indiscriminate roundup, such as the possibility of isolating old, sick, or lame horses and the possibility of concentrating roundup efforts on fertile mares in order to reduce the birth rate more rapidly.

29. The undisputed testimony of defendants' own experts indicates that (1) there is a significant dietary overlap between livestock, specifically cattle, and wild horses; and (2) the elimination of all livestock grazing on those limited parts of the Challis Unit that are considered to be critical for supplying winter range to the wild horses would enable the Challis Region to sustain at least 33 percent more horses over the government's estimated maximum sustainable level of approximately 300 horses. In other words, the Challis Region could then support at least 400 wild horses during the critical winter months. Thus, the undisputed testimony clearly indicates that the carrying capacity of the wild horses' winter range, which is undeniably the critical limiting factor upon which defendants have based their roundup plans, can be significantly increased by modifying and/or eliminating domestic livestock use of that range.

30. Defendants admit that it would be possible to restrict livestock grazing on the critical winter range areas by a proper type of fencing.

31. Defendants have not conducted adequate research into the relationship between cattle use of the horses' winter range and the ability of the winter range to support wild horses. In addition, the defendants have not conducted adequate research to determine the effects of domestic livestock grazing on wild horses in their winter range.

32. The undisputed testimony reveals that despite defendants' knowledge that it would be possible to increase the size of the wild horse population sustainable during the winter months by reducing cattle grazing on the critical, winter range by means such as fencing, this was not one of the five alternatives given serious and detailed consideration in either the Management Plan or the Environmental Analysis Record. The only formal alternative considered which would have reduced livestock grazing even partially was the proposal to eliminate all livestock grazing in the entire Challis Region. Consideration of this single alternative was and is patently insufficient.

33. The defendants have established no credible or rational reasons for their failure to give due consideration to the viable alternative of restricting livestock grazing on the wild horses' winter range rather than conducting the proposed roundup.

CONCLUSIONS OF LAW

Upon consideration of the relevant statutory provisions, and the authorities interpreting these provisions, the court makes the following conclusions of law:

1. The court has jurisdiction to hear this case pursuant to 28 U.S.C. § 1331, and 5 U.S.C. § 702.

2. The mandate of § 3(a) of the Wild Free-Roaming Horses and Burros Act of 1971, 16 U.S.C. § 1331(a), that "[a]ll management activities shall be at the minimal feasible level . . ." requires at a minimum that before any roundup or other significant management activity is undertaken, careful and detailed consideration must be given to all alternative courses of action that would have a less severe impact on the wild horse population, and such careful and detailed consideration of alternatives was not shown to have been employed by the defendants here.

3. The alternative of restricting livestock grazing on the critical winter range areas is such an alternatives as described in Conclusion 2, supra, and would permit more horses to remain in the Challis Region and would thus result in a lower level of management activity.

4. This alternative of restricting livestock grazing on the winter range areas is viable and should have been considered by the defendants, particularly in light of the mandate of the Wild Horse Act.

5. The failure to give this alternative the full and careful consideration required by the Act renders the proposed round-up plan "arbitrary, capricious, an abuse of discretion, [and] otherwise not in accordance with" the clear mandate of the Act to keep all management activities at the minimum feasible level. 5 U.S.C. § 706(2)(A).

6. The defendants' determination that the Challis Region is "overpopulated" and thus requires removal of some 130-260 wild horses was based on inadequate data. Moreover, the court finds that no reliable up-to-date population inventories were conducted and that the formula for projecting present herd size on the basis of the 1975 inventory utilized a reproduction ratio which is unsupported by, and in direct contradiction to, the credible evidence presented to the court. Accordingly, the determination of the number of horses to be removed in the roundup plan was arbitrary and capricious, and the decision to proceed with the roundup on the basis of this inadequate data base was and is an abuse of discretion by the defendants.

7. The defendants' failure to give adequate consideration in either the Challis Wild Horse Management Plan or in the Environmental Analysis Record to other less drastic means of population control also renders the proposed roundup arbitrary, capricious, an abuse of discretion, and contrary to the mandate of the Wild Free-Roaming Horses and Burros Act of 1971.

8. The decision by defendants not to have professional veterinary assistance on-site at all times during the roundup and the failure of defendants to develop contingency plans for veterinary assistance in case of unforeseen circumstances during the roundup renders the proposed roundup plan arbitrary, capricious, an abuse of discretion, and in violation of § 3(b) of the Wild Horse Act, 16 U.S.C. § 1333(b), which requires removal measures to be conducted under "humane conditions and care."

9. Since restricting livestock grazing on the critical winter range areas in order to allow the Challis Region to sustain more wild horses is clearly one alternative to the proposed livestock grazing plans that are currently discussed in BLM's draft EIS for livestock grazing in the Challis Region, the roundup cannot be permitted to occur at least until the EIS review process is completed.

To permit the proposed roundup to proceed during the pendency of the EIS review process mandated by Judge Flannery's order in NRDC v. Morton, supra, would eliminate one major alternative to the grazing allotments plan proposed in the EIS and would thus distort the analysis therein of costs and benefits mandated by NEPA. Accordingly, the decision to proceed with the proposed roundup at this time is, for this additional reason arbitrary, capricious, an abuse of discretion, and not in accordance with the procedural requirements of § 102(2)(C) of NEPA, 42 U.S.C. § 4332(2)(C).

CONCLUSION

In view of the foregoing, the court will issue an order and judgment of even date herewith declaring the proposed roundup illegal, and will direct the defendants, their agents, servants, and employees, from enforcing any contract for such roundup. The court [6 ELR 20805] will also issue an injunction permanently enjoining the proposed roundup of wild horses for the Challis Planning Unit until NEPA and the Wild Free-Roaming Horses and Burros Act have been complied with in all respects.

JUDGMENT

Upon consideration and by virtue of the findings of the fact and conclusions of law entered upon the record by the court of even date herewith, it is, by the court, this 9th day of September, 1976,

ORDERED, ADJUDGED, AND DECREED, as follows:

(1) The plaintiffs be, and the same hereby are, granted a declaratory judgment against the defendants, their agents, servants, and employees, declaring their proposed wild horse roundup illegal; and

(2) The defendants, their agents, servants and employees be, and the same hereby are, permanently enjoined from conducting the proposedroundup of wild horses in and for any part of the Challis Planning Unit at least until all of the requirements of the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq., and the Wild Free-Roaming Horses and Burros Act, 16 U.S.C. §§ 1331 et seq., have been complied with in all respects.