UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
AMERICAN WILD HORSE PRESERVATION ) CAMPAIGN ) 4115 Jalama Road ) Lompoc, CA 93426, ) ) CARLA BOWERS ) 20005 Buckeye Drive ) Volcano, CA 95689, ) ) RETURN TO FREEDOM ) 4115 Jalama Road ) Lompoc, CA 93426, ) ) Plaintiffs, ) ) v. ) Civ. No. ) TOM VILSACK, Secretary ) U.S. Department of Agriculture ) 1400 Independence Avenue SW ) Washington, DC 20250, ) ) THOMAS TIDWELL, Chief ) U.S. Forest Service ) 1400 Independence Avenue SW ) Washington, DC 20250, ) ) ANN D. CARLSON, Acting Forest Supervisor ) Modoc National Forest ) U.S. Forest Service ) 225 West 8th Street ) Alturas, CA 96101, ) ) Defendants. )
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
1. For more than 140 years, wild horses have roamed a pristine area in northeastern
California which, since 1905, has been protected by Congress as the Modoc National Forest
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under the jurisdiction of the Defendant United States Forest Service (Forest Service or
USFS). These bands of wild horses whose presence in the Modoc National Forest pre-dates
its establishment belong to the larger population of wild horses that has ranged throughout
western North America since soon after Spanish explorers first brought horses back to this
continent in the late 1400s. American wild horses suffered dramatic reductions in number during
the first half of the twentieth century due to competition with livestock for forage and water on
public lands. In response, Congress passed the Wild Free-Roaming Horses and Burros Act
(Wild Horse Act or WHA) in 1971 to halt such reductions and to secure the welfare of wild
horses for posterity. 16 U.S.C. 1331-1340. Under these protections, the wild horse
population within a USFS-designated Wild Horse Territory (WHT) in the Modoc National
Forest named the Devils Garden WHT grew to an estimated 1,000 horses by 1979. The
Forest Services most recent estimate, in 2012, estimated the number of wild horses in the
Devils Garden WHT at 1,124 horses, meaning that the wild horse population has increased little
in over thirty years.
2. According to the Forest Service, the most recent estimate of 1,124 wild horses is
equivalent to 13,488 Animal Unit Months (AUMs) of forage. An AUM is the amount of
forage that one horse, one cow/calf pair, or five sheep consume in one month. (The Forest
Service does not use the standard 1.0 AUM per horse per month calculation but instead uses 1.2
AUMs per horse.) The 13,488 AUMs used by wild horses at present is far less than the 23,935
AUMs of forage that the Forest Service has allocated to private cattle and sheep that are
authorized to graze in the Devils Garden WHT, as reported by the USFS. In short, prior to the
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decision challenged here, livestock already far outnumbered the current wild horse population in
the Devils Garden WHT.
3. For over 30 years, the Devils Garden WHT has consisted of a single, contiguous
258,000-acre range, which the Forest Service established in the early 1980s and formally
incorporated into its 1991 Land and Resource Management Plan (LRMP) for the Modoc
National Forest. However, on August 29, 2013 the Forest Service adopted a new management
plan that eliminated over 25,000 acres, or approximately 9.7% of the overall WHT, from the
Devils Garden WHT. The areas eliminated by the Forest Service include the important
middle section of the territory where essential forage and water resources exist, and which has
served an integral role in connecting all parts of the WHT with all other parts for genetic
interchange, interbreeding, and roaming purposes. The Forest Service asserted in its decision
that the eliminated areas consist of portions of the former Triangle and Avanzino Ranch lands
that were held privately at the time the WHA was passed in 1971, and therefore (according to the
agency) should not have been incorporated into the Devils Garden WHT in the early 1980s after
those lands became part of the Modoc National Forest. With respect just to the former Triangle
and Avanzino Ranch lands, the Forest Services elimination of these lands from the WHT after
three decades is legally unsupported. Moreover, the majority of the eliminated areas include
lands that were never part of the Triangle and Avanzino Ranches and were not held privately in
1971 but instead were part of the Modoc National Forest at all relevant times. Thus the Forest
Services radical redefinition of the boundaries of the Devils Garden WHT is not even
supported by the agencys own purported justification for the change.
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4. The Forest Services unprecedented decision is supported only by a conclusory
statement that the territory that has been recognized and managed by the agency for more than
three decades as a WHT resulted from [a]n administrative error. The new management plan
for which the Forest Service refused to prepare an Environmental Impact Statement (EIS) and
for which the Forest Service did not formally revise the governing LRMP despite this major
deviation in the Forest Services management regime and the consequent environmental impacts
that will result from it violates the WHA, the National Forest Management Act (NFMA), 16,
U.S.C. 1600-1687, and the National Environmental Protection Act (NEPA), 42 U.S.C.
4321-4370, as well as the implementing regulations for these laws.
5. In addition to challenging the Forest Services major boundary modification, and
the agencys reduction and severing of a single longstanding contiguous WHT, this action also
challenges the Forest Services adoption of a new Appropriate Management Level (AML)
which permanently decreased the low end of the wild horse population that the Forest Service
must maintain in the WHT. Forest Service enforcement of this new low AML through future
wild horse roundups would allow the removal of up to 82% of the wild horse population from
the Devils Garden WHT and would dramatically increase the disparity of forage allocations
between protected wild horses (2,472 AUMs, when the Forest Services new low-end AML is
put into effect) and discretionary private commercial livestock (23,935 AUMs). Ostensibly, this
dramatic reduction in the number of wild horses was intended to address deterioration of
rangeland conditions and advance administrative convenience. However, the Forest Service set
the new low AML for wild horses without even analyzing how the utilization of 23,935 AUMs
of forage by private cattle and sheep grazing the Devils Garden WHT impacts rangeland
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conditions, especially forage and water, despite the fact that the forage used by livestock is
nearly ten times the amount the agency has determined that wild horses should use. The Service
also failed to conduct a genetic study with regard to wild horses in the WHT prior to setting the
new low AML in order to understand the long-term sustainability of the reduced herd, especially
once the herd is separated into two isolated groups and genetic material will no longer naturally
intermix between the wild horse bands that will remain in the separated portions of the WHT.
6. The Forest Services adoption of a significantly decreased low AML violates
Congresss mandate that [a]ll management activities shall be at the minimal feasible level. 16
U.S.C. 1333(a) (emphasis added). In addition, the agencys decision to reduce the wild horse
population while leaving untouched the much larger numbers of private livestock that are present
at Devils Garden each year contravenes Congressional intent that the wild horses be considered
as components of the public lands co-equal with wildlife and domestic livestock. House
Congressional Record, # 34773, October 4, 1971 (emphasis added). Moreover, by failing to
prepare an EIS and by failing to formally revise the governing LRMP when setting a new and
substantially decreased low AML for the Devils Garden WHT, the Forest Service also
violated NEPA and NFMA.
7. If permitted to proceed, the Forest Services new management plan would result
in the removal of most wild horses currently residing in the Devils Garden WHT; eliminate over
25,000 acres of long-designated and managed Wild Horse Territory, including important
meadows and water sources; and split the territory into two separate sections thereby frustrating
genetic interchange, roaming, and other natural behaviors wild horses have long engaged in at
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Devils Garden WHT, while also permanently separating wild horses from other horses in the
same wild horse band.
8. By adopting these major changes to longstanding Forest Service management of
the Devils Garden WHT, especially without first preparing an EIS or formally revising the
governing LRMP, the Forest Services decision to adopt a new management plan that will
fundamentally alter the environmental and legal status quo was arbitrary, capricious, and not in
accordance with the WHA, NFMA, NEPA, and their implementing regulations; nor was the
agencys decision consistent with its own internal directives. Accordingly, the Court should
order that the Forest Services decision be vacated and remanded to the agency for further
consideration, pursuant to the express dictates of the Administrative Procedure Act (APA).
See 5 U.S.C. 706(2)(A), (D) (requiring that a reviewing court shall hold unlawful and set
aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law . . . [or] without observance of procedure
required by law).
JURISDICTION
9. This Court has jurisdiction over this action pursuant to 28 U.S.C. 1331.
PARTIES
10. Plaintiff American Wild Horse Preservation Campaign (AWHPC) is a broad-
based coalition of public interest groups, environmentalists, humane organizations, and historical
societies representing over ten million supporters. AWHPC, which is dedicated to preserving
American wild horses and burros in genetically viable free-roaming herds for generations to
come, has worked for the past decade to provide a unified voice and platform to advocate for
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Americas wild horses and burros. Supporters of the organizations represented by AWHPC
enjoy viewing wild horses on public lands, including in the longstanding Devils Garden WHT,
including the middle portion that the Forest Services plan removes from wild horse
management.
11. AWHPC opposes the Forest Services decision to adopt the 2013 Territory
Management Plan for the Devils Garden WHT which eliminates over 25,000 acres of historic
range from the Devils Garden WHT, significantly reduces the lower end of the AML for wild
horses, splits the wild horses in the Devils Garden WHT into two separate populations without
natural genetic interchange, and establishes a new decreased low AML for wild horses ostensibly
to protect forage while at the same time ignoring the extensive impacts to forage caused by the
much larger number of private livestock the Forest Service allows to graze the same Devils
Garden WHT each year. AWHPC has submitted detailed comments throughout the Forest
Services development of the new Territory Management Plan, including comments in response
to the initial scoping notice, comments in response to the second scoping notice, comments on
the Proposed Action, comments on the Preliminary Environmental Assessment, and comments
on the final Environmental Assessment. Pursuant to USFS regulations (36 C.F.R. 215),
AWHPC along with Plaintiff Carla Bowers timely appealed the Forest Services decision on
November 18, 2013. The Forest Service denied that appeal in relevant part on January 2, 2014.
12. The Forest Services decision to adopt the new Territory Management Plan,
which: (1) eliminates substantial acreage of existing territory (including essential habitat for
forage, water, and other essential resources) from the Devils Garden WHT, (2) divides wild
horses into two separate populations thereby frustrating wild horse band connectivity and natural
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genetic interchange, and (3) establishes a legally impermissible low AML for wild horses, harms
the organizational interests of AWHPC, the interests of its coalition members, and the interests
of its individual members and supporters in protecting and preserving viable free-roaming herds
of wild horses on public lands, including in the Devils Garden WHT, and their aesthetic
interests in observing wild horses engaging in their natural behaviors on these public lands.
13. A court order requiring the Forest Service to set aside its decision adopting the
new Territory Management Plan is necessary to protect AWHPCs interests and those of its
coalition members in the welfare and continued existence of viable free-roaming herds of wild
horses in the Devils Garden WHT, and such an order would redress the injuries caused to
AWHPC and its members by the Forest Services decision challenged in this case.
14. Plaintiff Carla Bowers is a resident of the town of Volcano, California. Ms.
Bowers advocates for the protection of wild horses on public lands in California, including in the
Modoc National Forest. She has been actively engaged in advocating for the protection of wild
horses for approximately five years. Ms. Bowers has conducted extensive research and has
written several reports on all aspects of the wild horse and burro programs administered by the
Forest Service and the Bureau of Land Management on a national scale, and in California and
Nevada specifically. She has presented these reports to federal agencies, to the agencies
Resource Advisory Councils, to the National Wild Horse and Burro Advisory Board, and to
members of Congress in Washington, D.C., as well as to the press, all with the goal of improving
the management of wild horses and burros on public lands. Ms. Bowers has regularly visited the
Devils Garden WHT, including the newly eliminated middle portion, and she has concrete plans
to continue to visit the Devils Garden WHT in the future. When she visits the Devils Garden
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WHT, Ms. Bowers monitors the habitat condition and the wild horses utilizing photographs and
creating detailed notes of her findings. She has not only educational and research interests in
these wild horses, but also derives immense recreational and aesthetic enjoyment from observing
wild horses roaming free in the Devils Garden WHT, including in the middle portion. She plans
to return to the Devils Garden in the very near future to observe wild horses and further her
aesthetic, recreational, educational, and conservation interests in the Devils Garden WHT and
the wild horses that reside there.
15. Ms. Bowers is particularly concerned with the preservation of self-sustaining,
genetically viable, and diverse wild horse populations, and with ensuring sufficient forage exists
on public lands where wild horses exist, including in the Devils Garden WHT. Ms. Bowers
strongly opposes the Forest Services decision to adopt the new Territory Management Plan
which eliminates a significant amount of historic range from the Devils Garden WHT,
substantially reduces the low end of the AML for wild horses, splits this reduced population of
wild horses into two separate populations without natural genetic interchange, and sets a new
low AML for wild horses ostensibly to protect forage while at the same time ignoring the
extensive impacts caused by the much larger numbers of private livestock the Forest Service
authorizes to graze in the Devils Garden WHT each year. Ms. Bowers has submitted detailed
comments throughout the Forest Services development of the new Territory Management Plan,
including comments in response to the initial scoping notice, comments in response to the second
scoping notice, comments on the Proposed Action, comments on the Preliminary
Environmental Assessment, and comments on the final Environmental Assessment. Pursuant to
USFS regulations (36 C.F.R. 215), Ms. Bowers along with Plaintiff AWHPC timely
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appealed the Forest Services decision on November 18, 2013. The Forest Service denied that
appeal in relevant part on January 2, 2014.
16. The Forest Services decision to adopt the new Territory Management Plan,
which: (1) eliminates substantial acreage of existing territory from the Devils Garden Wild
Horse Territory including essential habitat for forage, water, and other resources, (2) divides wild
horses into two separate populations thereby frustrating wild horse band connectivity and natural
genetic interchange, and (3) establishes a legally impermissible low AML for wild horses, harms
the aesthetic, recreational, educational, and conservation interests of Ms. Bowers by threatening
the sustainability, genetic viability, and diversity of the wild horses at Devils Garden, as well as
the connectivity of particular wild horse bands in the Devils Garden WHT, and by diminishing
the ability of Ms. Bowers to view wild horses at Devils Garden as a result of the dramatic
reduction in the size of the Devils Garden WHT and the reduction in the wild horse population
that will result from the new low AML that the agency set without accounting for other sources
of range impacts in the Devils Garden WHT, such as private livestock grazing.
17. A court order requiring the Forest Service to set aside its decision adopting the
new Territory Management Plan is necessary to protect the ability of Ms. Bowers to continue
enjoying the wild horses at the Devils Garden WHT in the future in the manner she previously
enjoyed, and such an order would redress the injuries caused to Ms. Bowers by the Forest
Services decision challenged in this case.
18. Plaintiff Return to Freedom is a non-profit organization that focuses on keeping
natural family bands of wild horses intact and on their rangelands. Its educational programs
attract university students, photographers, writers and others from all over the world, and provide
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them with opportunities to view wild horses in the wild, including in California. Return to
Freedoms president Neda DeMayo enjoys viewing, photographing, and studying wild horses
throughout the west, including in California. She also enjoys taking volunteers and program
participants out into wild horse habitats specifically in Nevada, Oregon, and California. Ms.
DeMayo has visited Devils Garden multiple times and has plans to visit in the near future. In
the past she has toured Devils Garden with work study participants to assess range, water and
wild horse conditions and to observe natural behaviors. The California-based nonprofit
organization was formed as a model to explore natural herd management and viable on-the-range
management solutions, as alternatives to traumatic and costly wild horse roundups. Given that
Devils Garden is the last large WHT in Return to Freedoms home state of California, the
organization has a special interest in protecting these horses on their range. Protecting the wild
horses in Devils Garden and educating the public are prime objectives of Return to Freedoms
mission. The organization is expanding its educational program and Devils Garden has been
identified as a key classroom on the range for this program. The Forest Services decision to
adopt the new Territory Management Plan will impair these organizational interests, and the
interests of Return to Freedoms supporters, by diminishing Ms. DeMayos and others
opportunities to see wild horses at the Devils Garden WHT.
19. Defendant Tom Vilsack is the Secretary of the United States Department of
Agriculture, the parent agency of the Forest Service, and, accordingly, is ultimately responsible
for the decision challenged in this action.
20. Defendant Thomas Tidwell is the Chief of the Forest Service, and therefore is also
responsible for the decision at issue.
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21. Defendant Ann D. Carlson is the Acting Forest Supervisor of the Modoc National
Forest, and is also responsible for the decision at issue.
STATUTORY AND REGULATORY BACKGROUND
A. The Wild Free-Roaming Horses and Burros Act
22. In 1971, both houses of Congress passed the WHA by unanimous votes. In doing
so, Congress found that wild free-roaming horses and burros are living symbols of the historic
and pioneer spirit of the West, and that they contribute to the diversity of life forms within the
Nation and enrich the lives of the American people. 16 U.S.C. 1331. Through the WHA,
Congress ensured that wild-free roaming horses and burros shall be protected from capture,
branding, harassment, [and] death, and that wild horses would be considered in the area where
presently found, as an integral part of the natural system of the public lands. Id. (emphasis
added).
23. The WHA requires the Secretary of the Interior through the Bureau of Land
Management (BLM), as well as the Secretary of Agriculture through the Forest Service, to
manage 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. Id. To achieve this objective, the WHA authorizes the Forest Service to designate and
maintain specific ranges on public lands as sanctuaries for their protection and preservation. 16
U.S.C. 1333(a). The WHA defines range as the amount of land necessary to sustain an
existing herd or herds of wild free-roaming horses and burros, which does not exceed their
known territorial limits, and which is devoted principally but not necessarily exclusively to their
welfare in keeping with the multiple-use management concept for public lands. 16 U.S.C.
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1332 (emphases added). Thus, Congress made clear that there is a mandatory duty imposed
upon agencies to protect wild horses on public lands that in 1971 served as wild horse ranges.
24. In 1980, the Forest Service adopted implementing regulations that require it to
[a]dminister wild free-roaming horses and burros and their progeny on the National Forest
System in the areas where they now occur . . . to maintain a thriving ecological balance
considering them an integral component of the multiple use resources. 36 C.F.R. 222.61(a)(1)
(emphasis added). The regulations further require the Forest Service to [e]stablish wild horse
and burro territories in accordance with the Act and continue recognition of such territories
where it is determined that horses and/or burros will be recognized as part of the natural
system Id. 222.61(a)(3) (emphasis added). While the WHA expressly permits the Forest
Service to take into consideration the needs of other wildlife species when adjusting forage
allocations on wild horse ranges, the needs of livestock are not included as a factor the Forest
Service should consider when making such adjustments. 16 U.S.C. 1333(a).
25. Private livestock currently graze on some 250 million acres of the approximately
650 million acres of federal public lands. By contrast, federal agencies manage fewer than 29
million acres about 26.9 million acres of BLM land and only 2 million acres of Forest Service
land for wild horse and burro protection. In other words, while private livestock are authorized
by federal agencies to graze upon nearly 40% of all Federal public lands, wild horses and burros
are confined to only 4.5% of such lands. It is this small fraction of land that Congress
unanimously mandated in the WHA shall be devoted principally to long-term wild horse
protection and welfare.
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26. Forest Service regulations make clear that [g]razing permits and livestock use
permits convey no right, title, or interest held by the United States in any lands or resources. 36
C.F.R. 222.3(b). Instead, discretionary private grazing permits may only be issued provided
the land is determined to be available for grazing purposes, 36 C.F.R. 222.3(c)(1)(i), and the
permits may be canceled, modified, or suspended in order to accommodate other public
purposes, 36 C.F.R. 222.4(a). To implement these regulations, the Forest Service has adopted
the agencys Range Management Manual, which explains the Forest Services position that it is
the policy of the WHA to [m]anage, protect, and control wild free-roaming horses and burros
on National Forest land rather than issue leases or permits to private parties. FSM 2200
2260.3 (emphasis added). By contrast, removal of excess wild horses that must be protected
on the range is only narrowly permitted in order to preserve and maintain a thriving natural
ecological balance and not to increase livestock grazing on Forest Service lands. 36 C.F.R.
222.60(b)(3). To ensure that wild horse territory is managed principally for the welfare of
wild horses, the statute provides that [a]ll management activities shall be at the minimal feasible
level. 16 U.S.C. 1333(a) (emphasis added).
27. In sum, with the passage of the WHA, Congress directed the Forest Service to
designate specific ranges where wild horses existed as sanctuaries for wild horses and, once
designated, to manage such territories principally for the welfare of wild horses. Once
designated, the Forest Service must continue its recognition of such territories and manage wild
horses there in perpetuity. While the agency may remove excess wild horses in consideration
of the needs of other wildlife or uses of the lands at issue, as with all wild horse management
activities, any actions related to the removal of wild horses from the range must be at the
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minimum feasible level necessary to achieve the objective at hand. And, at any rate, because
Congress mandated wild horse protection as opposed to activities (e.g., private livestock grazing)
which are entirely discretionary, reductions to discretionary activities should, at minimum, be
considered before or in conjunction with reductions in wild horse AMLs.
B. The National Forest Management Act
28. NFMA requires the Forest Service to develop, maintain, and, as appropriate,
revise land and resource management plans for units of the National Forest System. 16 U.S.C.
1604(a). In developing and amending these land and resource management plans (LRMPs),
the Forest Service shall use a systematic interdisciplinary approach to achieve integrated
consideration of physical, biological, economic, and other sciences. Id. 1604(b). Congress
mandated that the Forest Service shall provide for public participation in the development,
review, and revision of land management plans. Id. 1604(d).
29. NFMAs implementing regulations provide that [t]he first priority for planning
to guide management of the National Forest System is to maintain or restore ecological
sustainability of national forests and grasslands to provide for a wide variety of uses, values,
products, and services. 36 C.F.R. 219.2(a). Subsequent site-specific decisions to implement
an LRMP must be consistent with the applicable plan, and, if not, the responsible official may
modify the proposed decision to make it consistent with the plan, reject the proposal, or amend
the plan to authorize the action. Id. 219.10. The Forest Services Range Management Manual
provides further guidance to the agency, indicating that the Forest Service may only adjust
territorial boundaries if justified in the Forest Land and Resource Management Plan. FSM
2200 2260.41 (emphasis added). The Manual also instructs that Wild Horse and Burro
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Territory plans are to conform with the Forest land and resource management plans, id.
2263.11 (emphasis added); territory plans must be in compliance with the management
direction identified in Regional Guides and Forest land and resource management plans, id.
2263.1 (emphasis added); and a territory plan must describe[] desired population level,
detailed management practices, interagency coordination, scheduling, and monitoring
requirements for managing each herd unit, within the direction established in the Forest plan,
id. 2260.5 (emphasis added).
C. The National Environmental Policy Act
30. Congress enacted NEPA to ensure that federal agencies consider the
environmental impacts of their actions before taking them, and to further ensure that they
consider alternatives to proposed actions that may have less adverse impacts on the environment.
31. To meet these objectives, all agencies are required to prepare an EIS for major
federal actions that may significantly affect the natural environment. 42 U.S.C. 4332(C).
The Council on Environmental Quality (CEQ) an agency within the Executive Office of the
President has promulgated regulations implementing NEPA that are binding on all Federal
agencies. 40 C.F.R. 1500.3. These regulations provide that in determining whether an EIS is
required with respect to a particular proposed action, an agency must prepare an Environmental
Assessment (EA) that analyzes the environmental impacts of the proposed action as well as
alternatives. 40 C.F.R. 1501.4(c), 1508.9. The EA must analyze both the direct impacts of
the proposed action, i.e., those that result directly from the management action, as well as the
indirect impacts, which include those caused by the action that are later in time but are still
reasonably foreseeable. 40 C.F.R. 1508.8(a)-(b).
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32. An EA must analyze reasonable alternatives to the proposed action. 40 C.F.R.
1508.9. CEQ has deemed the alternatives analysis the heart of the NEPA process because it
present[s] the environmental impacts of the proposal and the alternatives in comparative form,
thus sharply defining the issues and providing a clear basis for choice among options by the
decisionmaker and the public. 40 C.F.R. 1502.14.
33. The CEQ regulations further provide that to the extent practicable, the agency
shall involve the public in preparing an EA, in order to facilitate public involvement and
ultimately result in better decisionmaking minimizing environmental impacts of the action. 40
C.F.R. 1501.4(b), 1508.9(a)(1). To ensure the integrity of the NEPA process, agencies are
required to use the NEPA process to objectively evaluate reasonable alternatives and make a
final decision based on that evaluation, rather than simply justifying a predetermined outcome
that the agency has reached without the benefit of a properly conducted NEPA process. See 40
C.F.R. 1502.2(g) (requiring that the NEPA process shall serve as the means of assessing the
environmental impact of proposed agency actions, rather than justifying decisions already
made); id. 1502.5 (requiring that NEPA review will not be used to rationalize or justify
decisions already made).
34. In determining whether an EIS is required, an agency must consider whether the
proposed action has a significant effect on the human environment. 40 C.F.R. 1508.27. The
significance determination is based on factors such as the degree to which the possible effects
on the human environment are highly uncertain, or the degree to which the effects on the
quality of the human environment are likely to be highly controversial, as well as whether the
action establishes a precedent for future actions with significant effects, or whether it causes
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loss or destruction of significant scientific, cultural, or historical resources. Id. 1508.27(b).
The presence of any of these factors requires the preparation of an EIS.
35. When an agency determines that an EIS is not required, it must issue a Finding of
No Significant Impact (FONSI), which must present the reasons why the agency has
determined that its proposed action will not have a significant impact on the environment. Id.
1508.13.
FACTUAL BACKGROUND
A. Wild Horses Have Inhabited Devils Garden For Over 140 Years
36. Wild horses existed in North America in pre-historic times but disappeared
approximately 10,000 to 12,000 years ago. Horses returned to the continent in 1493 when
Columbus brought them from Spain to the West Indies. Cortes brought them to the mainland in
1519. Thereafter, domesticated horses spread across western North America through use by the
Spanish settlers, Native Americans, and others. Some horses escaped domestication or were set
free, and by the 18th and 19th centuries, herds of wild horses existed in what are now Northern
Mexico, Texas, New Mexico, and California. By the early 1900s, an estimated two million wild
horses ranged across North America, but this population suffered significant reductions as wild
horses were captured and slaughtered to accommodate livestock and to supply pet food. Public
concern for the welfare and sustainability of wild horses resulted in Federal efforts to protect the
remaining wild horses beginning in the 1950s. These efforts culminated in the enactment of the
WHA in 1971.
37. The Devils Garden WHT is located north of the town of Alturas, California in
Modoc County. For more than 30 years, the Devils Garden WHT, which lies primarily within
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the Modoc National Forest, consisted of 258,000 contiguous acres of public land prior to the
agency decision that is the subject of this action. It is the last large wild horse territory on Forest
Service land in California. While a small portion of the WHT 8,300 acres falls on lands
under the jurisdiction of BLM, the Forest Service takes the lead role in managing the entire
territory pursuant to an inter-agency Memorandum of Understanding since the vast majority of
the WHTs acreage is on Forest Service land.
38. According to the Forest Service, wild horses have lived in the area now
designated as the Devils Garden WHT for more than 140 years. Records show that unbranded
and unclaimed horses were present at Devils Garden since the late 1800s. While there were
sporadic efforts to extirpate the wild horse population at Devils Garden in the early- to mid-
twentieth century, and while roundups severely reduced the population through the early 1950s,
sufficient numbers of wild horses remained at the time the WHA was enacted in 1971 to ensure
their survival once the Congressional mandate to protect them took effect.
B. The Forest Service Establishes a Single, Contiguous Wild Horse Territory at Devils Garden that Reflects the Long-Standing Presence of Wild Horses and Their Use of the Entire Territory
39. In 1975, the Forest Service adopted a Wild Horse Territory Plan for Devils
Garden that included two units covering 236,000 acres. The two units were separated by a
middle section that was partially but not exclusively private land. Despite the administrative
separation, wild horses nevertheless existed in the middle section as well as the two formally
designated eastern and western units. The middle section which, again, was not wholly private
land, but rather included a sizeable portion of federal public land contains numerous important
meadows and water sources that provide critical resources for wild horses and other wildlife,
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which wild horses have used since at least 1971 and most likely well before that time. Indeed,
the Forest Service recognized this fact when, after acquiring certain private lands, including the
Triangle Ranch (in 1976) and parts of the Avanzino Ranch via private-public land exchanges, the
agency modified the boundary of the Devils Garden WHT in the early 1980s to include all of
the land where the wild horses actually existed (and had existed for years, including at the time
the WHA was enacted). In addition to adding portions of the Triangle and Avanzino Ranch
lands that had been acquired, this modification also incorporated large areas of lands where wild
horses existed that had been part of the Modoc National Forest long before 1971, including
portions of the Big Sage, Timbered Mountain, Carr and Pine Springs Allotments. The vast
majority of the areas from these allotments that were incorporated into the WHT in the early
1980s were publicly held lands in 1971 when the WHA was passed. Together, these
modifications added the important middle section and other areas to the Devils Garden WHT.
Thus, since the early 1980s, the Devils Garden WHT has consisted of 258,000 acres that formed
a single contiguous territory. (A copy of the Forest Service map showing the Devils Garden
Wild Horse Territory as it has existed for more than thirty years is attached as Exhibit A.)
40. In 1991, the Forest Service went through the formal LRMP revision process for
the Modoc National Forest, and in its final LRMP the agency incorporated the revised map for
the Devils Garden WHT reflecting the larger, single territory. The 1991 LRMP also formally
established the AML for wild horses at the Devils Garden WHT at 275-335 animals, meaning
that at no time could the Forest Service under the governing LRMP maintain a wild horse
population of less than 275 wild horses consistent with the LRMP.
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41. For the past three decades, the Forest Service has administered and managed wild
horses on land that the agency identified and established as wild horse territory in the early
1980s, including the middle section. At the same time, the Forest Service has, in its discretion,
issued permits to private ranchers to graze livestock on ten allotments that collectively cover the
entire Devils Garden WHT.
42. The large number of privately grazed cattle and sheep in the Devils Garden WHT
is especially concerning because of the differences in how cattle, in particular, use and
consequently damage the range and riparian areas as compared to wild horses. Available
empirical data demonstrate that wild horses in many cases provide substantial ecosystem benefits
because they roam many miles between higher, hilly ground where forage is plentiful and lower
riparian areas where water is ordinarily found. Cows, in contrast, tend to congregate primarily in
low-lying riparian areas and spend extensive time in and around riparian areas causing much
more concentrated, acute damage in such sensitive habitats. In addition, horses cause little to no
damage to the vegetation they consume because their teeth remove only the top of the vegetation
(much like a lawn mower) and thus do not affect the growth ability of the grasses. Indeed,
because their unique digestive system allows seeds and vegetation to pass through the digestive
tract undegraded to be reseeded for future growth, wild horses actually benefit range conditions
when maintained at sustainable population levels. In sharp contrast, with no upper teeth, cattle
rip at grasses and other forage, inhibiting future growth and destroying the plant, and their
ruminant digestive systems do not benefit the ecosystem because seeds are not usable after they
pass through the bovine digestive tract. As a result, data shows that removing wild horses from a
particular management area has, at best, a negligible effect on range conditions if cattle and
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sheep numbers remain unchanged since it is private livestock, due to their concentrated herding
patterns and physiological attributes, that can and do cause serious damage to the range,
particularly in the most sensitive, low-lying riparian habitats.
C. The Forest Service Proposes to Eliminate Substantial Portions from the Devils Garden Wild Horse Territory, Divide the Reduced Territory, and Set a Legally Unsupportable AML that Deviates from the Agencys LRMP
43. On July 27, 2011, the Forest Service issued a scoping letter in which it
propos[ed] to update the Devils Garden Wild Horse Territory Plan which will guide
management of wild horses on Modoc National Forest for the next 15-20 years. The scoping
letter stated that the purpose for the project was management of the Devils Garden Plateau
Territory wild horse herd over the next 15-20 years in a manner that supports a healthy,
genetically diverse horse population, maintains or improves the habitat of the Territory; and
sustains the natural ecological balance and multiple use relationship
44. The proposed actions in the scoping letter included determining if the current
appropriate management level (AML) of 335 head, as established in the Modoc National Forest
LRMP, 1991 continues to be valid, and if not determine the optimum number of animals the
Territory will support on a yearlong basis. The Forest Service also stated that a feature of the
proposal was to [a]djust the lower level of AML to increase intervals between removals to 4-5
years. The other actions proposed included managing the horses for a 50:50 male-to-female sex
ratio; managing one portion of the population to maintain draft horse style characteristics;
containing animals within the territory; managing the population for genetic diversity; and
implementing population suppression methods.
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45. The scoping letter stated that an environmental assessment would be prepared
pursuant to NEPA to help the Forest Service decide the population range at which the wild
horses at Devils Garden would be managed; what techniques would be used to maintain the
historic characteristics of the herd; which population suppression methods would be
implemented; the frequency of removals; and the procedures that would be incorporated into
future removals.
46. Nowhere in the scoping letter did the Forest Service even raise the possibility that
it was considering eliminating over 25,000 acres of already designated wild horse territory from
the Devils Garden WHT. Instead, the letter included a map showing the larger single wild horse
territory that was established by the Forest Service thirty years earlier and that was expressly
incorporated into the 1991 LRMP.
47. Plaintiffs AHWPC and Ms. Bowers submitted comments to the initial scoping
letter on August 30, 2011 and August 29, 2011, respectively. In their comments, they expressed
concerns about, inter alia, changes to the AML that would prioritize livestock, the frequency and
manner in which removals would be carried out, and issues raised by the proposed sex ratio.
48. Nearly sixteen months later, on December 13, 2012, the Forest Service issued a
new scoping letter and a Proposed Action in which it proposed for the first time to modify the
boundary of the Devils Garden WHT and to eliminate over 25,000 acres or approximately
9.7% of the overall WHT that the agency previously had designated as part of the territory and
had managed accordingly for more than thirty years. This proposal purported to divide the
territory into the two separate sections that existed in 1975 prior to the governments acquisition
of the Triangle and Avanzino Ranch lands. (A copy of the map included with the Proposed
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Action is attached as Exhibit B.) While the Forest Service asserted that this change was required
because the lands added to the WHT in the early 1980s had been privately held at the time the
WHA was passed in 1971, as explained below, the revised boundaries that the Forest Service
ultimately adopted in 2013 actually eliminated substantially more territory than just the portions
of the Triangle and Avanzino Ranch lands that had been included in the WHT in the early 1980s.
Instead, the majority of the eliminated areas were never part of the Triangle or Avanzino Ranch
lands but consisted of portions of the Big Sage, Timbered Mountain, Carr and Pine Springs
Allotments, the overwhelming majority of which was publicly held in 1971 when the WHA was
passed.
49. The Forest Service provided no explanation for this major boundary modification
other than asserting without elaboration that the agencys establishment of a single Wild Horse
Territory in the 1980s was for administrative convenience and was [a]n administrative error.
The Proposed Action contained no discussion of the historic use of the middle section by wild
horses, nor did it explain whether the agency believed the middle section had or had not been
used by wild horses both before the enactment of the WHA and after it. Nor did the agency
explain why it was including public lands that were part of the Modoc National Forest at the time
the WHA was passed. Moreover, while the document did concede that the larger single territory
was the one included in the still-operative 1991 LRMP, it did not explain what basis the agency
was invoking to deviate from the governing LRMP.
50. Plaintiffs AWHPC and Bowers both submitted comments in response to the
Proposed Action in which they reiterated their previous concerns and also strongly objected to
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the proposal to eliminate substantial wild horse range including the middle section from the
Devils Garden WHT.
51. Only one month after it issued the Proposed Action, the Forest Service released a
document in January 2013 entitled Evaluation of Monitoring Data for the Purpose of
Determining an Appropriate Management Level (AML Evaluation). In it, the Forest Service
proposed new AMLs for eight livestock grazing allotments that overlapped with the significantly
reduced, divided wild horse territory identified in the Proposed Action. With respect to part of
the middle portion (i.e., the Triangle and Avanzino Ranch lands), however, the AML was
established as 0 wild horses for the two areas. While the Forest Service asserted that it was
eliminating parts of the Triangle and Avanzino Ranch lands from wild horse use (within the
middle section), in fact large areas of additional lands within the middle section were also being
eliminated from wild horse use, including parts of the Big Sage, Timbered Mountain, and Carr
allotments. Despite the fact that the majority of these areas were never private lands, nor were
they even mentioned during the Forest Services planning process, the agencys proposal would
zero out wild horses in these areas as well. Thus, in its AML Evaluation which was the critical
analysis upon which its revised Territory Management Plan would be based, the Forest Service
had already effectively implemented the substantially redefined and significantly reduced
territory that was first proposed in the Proposed Action merely one month earlier before waiting
for a final decision or even public comment in response to the new scoping letter. This meant
that over 25,000 acres that had been designated and maintained as wild horse territory for more
than thirty years, and which provided important range for the Devils Garden WHT wild horses,
were no longer included as part of the animals territory. Instead, given the proposed AML of
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zero wild horses in the middle section, any horses found there would be subject to elimination
from Devils Garden through immediate removal. That the agencys AML Evaluation did not
even consider the possibility that the Proposed Action issued one month earlier would not be
adopted, but instead assumed the dramatic elimination of this land, demonstrates that the
Proposed Action was a predetermined outcome in the agencys view.
52. The AML Evaluation proposed a new AML of 105-183 horses for the eastern
portion of the redefined territory, and a new AML of 101-219 horses for the western portion.
Again, the AML for the middle section was zero. The proposed overall new AML range of 206-
402 both increased the high AML and lowered the low AML established in the governing 1991
LRMP, which was 275-335 horses. Importantly, since the Forest Service is authorized to and
often does remove excess wild horses down to the low AML, this proposal has the effect of
substantially decreasing the low AML by 69 wild horses, from 275 wild horses in the LRMP to
the 206 in the new proposal, which is more than a 25% reduction. Even more troubling, the new
AML is divided across the two separate portions of the WHT, which means that the Devils
Garden wild horse population will be separated into two discrete populations. Thus, the eastern
portion of the WHT may at any time have as few as 105 wild horses and the western portion as
few as 101 wild horses, calling into question serious genetic diversity concerns, particularly
because the middle portion has been eliminated along with genetic interchange between wild
horse bands on either side.
53. On May 2, 2013, the Forest Serviced released its Draft EA for the revised Devils
Garden Wild Horse Territory Management Plan, which proposed, inter alia, to adopt the revised
boundaries for the territory proposed in the Proposed Action as well as the new proposed AML.
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The Forest Service rejected an alternative that would have established an AML of 700-900 wild
horses, which would have allowed more wild horses to remain in the Devils Garden WHT
consistent with wild horse numbers in the 1970s, and which would have allocated forage and
other resources at least somewhat more equitably between wild horses and private livestock in
the Devils Garden WHT. While the Draft EA asserted that it was aimed at addressing
deterioration of the range, no consideration was given to the impacts caused by the allocation of
approximately 23,935 AUMs for private cattle and sheep that are brought to Devils Garden each
year impacts which, as described above, have been found in many cases to be considerable
because of the manner in which herd animals such as cattle and sheep graze. Moreover, while
one of the goals of the decision was to ensure the existence of a genetically sustainable
population of wild horses, the new low AML of 206 wild horses when applied to the two
separate portions of the revised WHT means that approximately only 100 wild horses would
exist within either portion of the WHT after an agency roundup. The Forest Service adopted
these changes despite its admission that [t]he genetic health of the herd has not yet been
determined.
54. Plaintiff AWHPC submitted detailed comments in response to the Draft EA on
May 22, 2013, and Ms. Bowers submitted her comments on May 31, 2013. In their comments,
AWHPC and Ms. Bowers expressed concerns that the proposed AML was improper and did not
reflect the need to maintain the genetic sustainability of the wild horse population, that the AML
reflected a preference for livestock use of the territory, that the AML was based on the improper
determination that rangeland deterioration was caused solely by wild horses, and that the forage
calculations the agency used were erroneous and did not reflect current scientific understandings.
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Plaintiffs also pointed out that, in significantly modifying the Devils Garden WHT AML, the
Forest Service failed to consider and analyze available forage and resources in an integrated
manner taking into account private livestock grazing in the WHT, which would have allowed a
holistic approach to determine the relevant forage allocations for various uses of the WHT, and,
consequently, determine whether reductions should occur to private grazing allotments, the wild
horse AML, or both. AWHPC and Ms. Bowers also strongly objected to the proposed decision
to eliminate substantial territory from the Devils Garden WHT, and pointed out that wild horses
had existed in the middle section since at least 1971 when the WHA was passed. For various
reasons, Plaintiffs also explained that the substantial modifications proposed by the Forest
Service were not consistent with the governing LRMP, nor under the circumstances could the
Forest Service circumvent its obligation to prepare an EIS. In addition, AWHPC and Ms.
Bowers both supported the selection of the alternative that would have established an AML more
reflective of the current population of horses, as well as the population that existed in the Devils
Garden WHT in the late 1970s according to the agencys own data.
D. With Its August 29, 2013 Record of Decision and Final EA, the Forest Service Adopted Its Decisions to Zero Out over 25,000 Acres of Long-Standing Wild Horse Territory, Divide the Reduced Territory, and Adopt an Inappropriate AML
55. On August 29, 2013, the Forest Service issued a Final EA, in which the agency
adopted the proposed action from the Draft EA with certain minor modifications. The Forest
Service also issued a Record of Decision (ROD), which authorized the agency to proceed with
the action, and a Finding of No Significant Impact (FONSI). In the FONSI, the Forest Service
stated that the selected alternative would not pose significant short or long term adverse
effects, and despite the unprecedented elimination of significant land from the territory it
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also asserted that the proposal somehow was consistent with the 1991 LRMP and applicable
law and regulations. The FONSI stated that future actions related to livestock grazing had been
analyzed in adopting the selected alternative, and that such actions were found to be relatively
minor for all resources. In fact, while the effects of wild horses on livestock were arguably
considered, the effects of livestock on health of the rangeland and availability of forage were not
considered (much less analyzed) at all, and instead all observed rangeland conditions were
attributed to wild horses even though their numbers are fewer than the private cattle and sheep
that graze at Devils Garden. This omission was particularly egregious considering that private
cattle and sheep, due to their herd and behavioral characteristics, are known to cause heavily
concentrated damage in riparian and other areas as compared to wild horses which disperse any
impacts much more lightly across the landscape.
56. The Forest Service also failed to analyze the impact that reducing the horse
population to the new low AML, and the division of the horse population into two isolated units,
would have on the sustainability and genetic viability of the herd. Instead, the agency stated that
such an analysis would be conducted in the future, but it nevertheless adopted the new AML and
eliminated the middle section from the Wild Horse Territory without the benefit of that critically
important analysis.
57. Pursuant to USFS regulations (36 C.F.R. 215), Plaintiffs timely appealed the
Forest Services decision on November 18, 2013. The Forest Service denied that appeal in
relevant part on January 2, 2014. Having fully exhausted their available administrative avenues
to obtain relief from the Forest Services erroneous adoption of the 2013 Wild Horse
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Management Plan for Devils Garden, Plaintiffs now seek judicial intervention through this
action.
PLAINTIFFS FIRST CAUSE OF ACTION
(Violations of the APA and the Wild Free-Roaming Horses and Burros Act as to the boundary modification)
58. Plaintiffs hereby incorporate paragraphs 1 through 57, as if set forth in full herein.
59. The Forest Services decision to eliminate over 25,000 acres of previously
designated wild horse territory from the Devils Garden WHT approximately 9.7% of the
original 258,000 acres of the WHT that existed before the decision violates the mandate of the
WHA to maintain designated wild horse ranges on public lands as sanctuaries for their
protection and preservation. 16 U.S.C. 1333(a). It also violates the Forest Services own
1980-promulgated regulatory requirement that it [a]dminister wild free-roaming horses and
burros and their progeny on the National Forest System in the areas where they now occur . . . to
maintain a thriving ecological balance considering them an integral component of the multiple
use resources. 36 C.F.R. 222.61(a)(1) (emphasis added). It also violates the requirement that
the Forest Service continue recognition of territories where it is determined that horses and/or
burros will be recognized as part of the natural system . . . . Id. 222.61(a)(3).
60. The Forest Services decision eliminated significant territory where wild horses
have been maintained and managed for more than 30 years. The only explanation that the Forest
Service has provided is that it was correcting an administrative error, but no details about this
conclusory determination have been provided to the public. Moreover, the Forest Service made
this decision without any effort to determine whether wild horses existed, as a factual matter, in
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the newly eliminated territories in 1971 when the WHA was enacted or in 1980 when the Service
issued its WHA implementing regulations.
61. In addition, the agency has based this change on its position that the eliminated
areas should not have been included in the Devils Garden WHT because they were part of the
privately held Triangle and Avanzino Ranch lands when the WHA was passed in 1971. In fact
the majority of the eliminated territory was never part of the Triangle or Avanzino Rach lands
but instead consists of portions of the Big Sage, Timbered Mountain, Carr and Pine Springs
Allotments, the vast majority of which were not privately held in 1971 when the WHA was
passed. Instead, these parts of the eliminated areas were all publicly held and part of the Modoc
National Forest in 1971. Thus, even applying the Forest Services own reasoning which
Plaintiffs dispute the Forest Service has failed to provide any legally adequate justification for
eliminating most of the land from the WHT.
62. By violating the WHA and its own regulations, and failing to provide any legally
adequate explanation for its decision, the Forest Services decision to eliminate over 25,000
acres of designated wild horse territory is arbitrary, capricious, an abuse of discretion, and not in
accordance with law (i.e., the WHA), in violation of Section 706(2) of the APA.
63. The Forest Services actions have injured plaintiffs in the manner described in
paragraphs 10-18.
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PLAINTIFFS SECOND CAUSE OF ACTION
(Violations of the APA and NFMA as to the boundary modification)
64. Plaintiffs hereby incorporate paragraphs 1 through 57, as if set forth in full herein.
65. The Forest Services decision to substantially adjust the border of the Devils
Garden WHT and in the process eliminate over 25,000 acres of previously designated wild horse
territory from the WHT directly contravenes the still-operative 1991 LRMP which expressly
incorporated and directed the Service to manage a single, contiguous 258,000 acre Wild Horse
Territory for Devils Garden. The Forest Services new decision, which both eliminates critical
wild horse habitat and zeroes out the wild horses that have long used the eliminated areas, is
not an insignificant revision of the LRMP, and was made without going through the formal
Forest Plan amendment or revision process. Instead, the decision was made when, in December
2012, the Forest Service released a site-specific Proposed Decision to eliminate territory that had
been managed for wild horses for more than 30 years, and did so with no explanation other than
a conclusory statement that the decision establishing the single, contiguous territory in the early
1980s was the result of [a]dministrative error.
66. The Forest Services decision is inconsistent with the governing 1991 LRMP,
failed to satisfy the required formal Forest Plan amendment or revision process in NFMA despite
making significant changes to the WHT boundary and wild horse connectivity, and therefore
violates NFMA and its implementing regulations. Moreover, the Forest Services decision
contravenes the agencys own NFMA directives as set forth in its Range Management Manual,
which instructs that the Forest Service may only adjust territorial boundaries if justified in the
Forest Land and Resource Management Plan, FSM 2200 2260.41 (emphasis added), and
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which explains that Wild Horse and Burro Territory plans are to conform with the Forest land
and resource management plans, id. 2263.11 (emphasis added); see also id. 2263.1
(requiring that WHT plans must be in compliance with the management direction identified in
Regional Guides and Forest land and resource management plans) (emphasis added); id.
2260.5 (explaining that a territory plan must be within the direction established in the Forest
plan) (emphasis added).
67. By violating the 1991 LRMP, NFMA, and the agencys own internal directives,
the Forest Services decision to eliminate over 25,000 acres of designated wild horse territory
without formally amending or revising the governing LRMP is arbitrary, capricious, an abuse of
discretion, and not in accordance with law (i.e., NFMA), in violation of Section 706(2) of the
APA.
68. The Forest Services actions have injured plaintiffs in the manner described in
paragraphs 10-18.
PLAINTIFFS THIRD CAUSE OF ACTION
(Violations of the APA and NEPA as to the boundary modification)
69. Plaintiffs hereby incorporate paragraphs 1 through 57, as if set forth in full herein.
70. In making the decision to eliminate a substantial amount of acreage over 25,000
acres of previously designated wild horse territory from the Devils Garden WHT, the Forest
Service did not consider any reasonable alternatives to that action, including a no-action
alternative. It also did not analyze at all the impact that the elimination of over 25,000 acres of
the Devils Garden WHT would have on the wild horses at Devils Garden, particularly in light
of the fact that certain essential resources such as forage and water are now inaccessible to wild
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horses in areas that those horses have accessed and used for more than 30 years (and, in
actuality, much longer), and in light of the fact that wild horse bands will now lose connectivity
and natural genetic interchange that has existed for decades. The Forest Service failed to take a
hard look at the serious environmental and related effects of its chosen action, in violation of
NEPA and its implementing regulations. This failure is especially egregious given that the
decision will result in the permanent removal of all wild horses from the eliminated territories,
including the middle section which consists of the northern Triangle, Avanzino, northwestern
Big Sage, north Carr, and western Timbered Mountain allotments of the public lands.
71. The Forest Service also failed to adequately respond to public comments
regarding the importance of the eliminated territory and its historical use by wild horses, but
instead only responded that the action was intended to correct an administrative error without
further explanation. By so failing, the Forest Service violated the public participation mandate of
NEPA and its implementing regulations. Also, the Forest Service almost immediately
incorporated this proposed decision into its AML Evaluation without first considering public
comment in response to this dramatic change, thereby indicating that the proposal was a
foregone conclusion.
72. The Forest Service also violated NEPA by taking an action eliminating over
25,000 acres that has long been available to the wild horses in the Devils Garden WHT that
will substantially and significantly alter the environmental status quo in the WHT by eliminating
forage, water, and other resources from availability to wild horses in the middle portion and by
severing connectivity and natural genetic interchange that has long existed between wild horse
bands throughout the contiguous Devils Garden WHT. Along with other NEPA significance
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factors, see 40 C.F.R. 1508.27, there is no question that this precedential decision regardless
of the reason for it will result in a major change in the environmental status quo, thereby
triggering the need for an EIS, which the Forest Service failed to prepare.
73. By violating NEPA and its implementing regulations in the ways described
herein, the Forest Services actions were arbitrary, capricious, an abuse of discretion and not in
accordance with law (i.e., NEPA), in violation of Section 706(2) of the APA.
74. The Forest Services actions have injured plaintiffs in the manner described in
paragraphs 10-18.
PLAINTIFFS FOURTH CAUSE OF ACTION
(Violations of the APA and the Wild Free-Roaming Horses and Burros Act as to the AML modification)
75. Plaintiffs hereby incorporate paragraphs 1 through 57, as if set forth in full herein.
76. The Forest Services decision to establish an overall AML for Devils Garden of
206-402 horses which, combined with the agencys major boundary modification, results in a
low AML in the eastern portion of only 105 wild horses and in the western portion only 101 wild
horses to purportedly address rangeland conditions without considering livestock impacts, and
for administrative convenience, violates the WHAs requirement that designated wild horse
territories be devoted principally to the welfare of wild horses. 16 U.S.C. 1332. The failure
to account for much less analyze the forage requirements of private livestock when taking the
drastic action to reduce the low AML of Congressionally protected wild horses in the Devils
Garden WHT also violates the agencys own Range Management directives which require all
uses to be evaluated in combination and adjusted accordingly. See FSM 2200 2263.11
(mandating that the Forest Service must, when preparing a territory plan, [c]onsider existing
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livestock and wildlife needs and activities as well as the forage requirements of all animals in
the area covered by the plan) (emphasis added). Moreover, considering that there are far more
private cattle and sheep grazing in the Devils Garden WHT consuming much more forage than
the relatively small number of wild horses, by deciding to significantly reduce the overall WHT
AML by 69 horses a more than 25% reduction in the low AML from what the governing
LRMP prescribes while refusing to reduce any discretionary grazing permit allotments to
private ranchers for cattle and sheep, violates the mandate in the WHA that [a]ll [wild horse]
management activities shall be at the minimal feasible level, 16 U.S.C. 1333(a) a mandate
that does not exist with respect to private cattle and sheep.
77. The adverse impact of the Forest Services decision to adopt a new low AML of
206 wild horses on the sustainability and genetic viability of the wild horse population in the
Devils Garden WHT was compounded by the Forest Services decision to eliminate the
longstanding middle section of the WHT. Thus, the Forest Service has decided both to reduce
the overall population of wild horses, and divide this reduced population into two separate and
isolated groups. The Forest Service has made these decisions even though the agency admits
that no genetic study of the population has been performed, and despite the fact that the effect of
the agencys action will be to undermine its stated objective that the revised plan should
support[] a healthy, genetically diverse horse population. By threatening the genetic viability
of the wild horses at Devils Garden, without first undertaking a genetic study to analyze the
import of its drastic decisions, the Forest Services decisions violate the WHA and its
implementing regulations.
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78. As set forth above, the newly adopted AML violates the WHA, its implementing
regulations, and the agencys own internal directives, and is therefore arbitrary, capricious, an
abuse of discretion, and not in accordance with law (i.e., the WHA), in violation of Section
706(2) of the APA.
79. The Forest Services actions have injured plaintiffs in the manner described in
paragraphs 10-18.
PLAINTIFFS FIFTH CAUSE OF ACTION
(Violations of the APA and NFMA as to the AML modification)
80. Plaintiffs hereby incorporate paragraphs 1 through 57, as if set forth in full herein.
81. The Forest Services decision to reduce the low end of the AML established in the
1991 LRMP from 275 to 206 is patently inconsistent with the 1991 LRMP, failed to satisfy the
required formal Forest Plan amendment or revision process, and violates NFMA and its
implementing regulations.
82. By analyzing wild horse rangeland impacts and AMLs in isolation, the Forest
Service segmented its analysis in piecemeal fashion and erroneously assumed all impacts to the
WHT rangeland were the result of wild horses without studying and considering the impacts of
the principal users of the range private cattle and sheep. Had the Forest Service analyzed
rangeland impacts as part of the Forest Plan revision process, as required under NFMA and its
regulations, it would have had to study the impacts of all users of the wild horse territory and its
decision would have taken account of the relative impacts in determining whether, and how
much, reduction of various uses is warranted based on that data. As the Forest Services Range
Management Manual explains, the Forest Service must, when preparing a territory plan,
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[c]onsider existing livestock and wildlife needs and activities as well as the forage requirements
of all animals in the area covered by the plan. FSM 2200 2263.11 (emphasis added). The
agencys failure in this respect is particularly egregious in light of the fact that the Forest
Services regulations make clear that [g]razing permits and livestock use permits convey no
right, title, or interest held by the United States in any lands or resources, 36 C.F.R. 222.3(b),
discretionary private grazing permits may only be issued provided the land is determined to be
available for grazing purposes, 36 C.F.R. 222.3(c)(1)(i), and the permits may be canceled,
modified, or suspended in order to accommodate other public purposes, such as to allocate some
forage to wild horses, wildlife, or other uses, 36 C.F.R. 222.4(a).
83. As set forth above, the newly adopted low AML that significantly deviates from
the AML in the governing LRMP and which did not analyze at all whether discretionary cattle
and sheep grazing permit allocations should be reduced instead of reducing the wild horse AML
violates NFMA, its implementing regulations, and the agencys internal directions and is
arbitrary, capricious, an abuse of discretion and not in accordance with law (i.e., NFMA), in
violation of Section 706(2) of the APA.
84. The Forest Services actions have injured plaintiffs in the manner described in
paragraphs 10-18.
PLAINTIFFS SIXTH CAUSE OF ACTION
(Violations of the APA and NEPA as to the AML modification)
85. Plaintiffs hereby incorporate paragraphs 1 through 57, as if set forth in full herein.
86. By failing in connection with the revised Management Plan to analyze the impacts
of livestock grazing in the Devils Garden WHT, and to determine whether, and to what extent,
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livestock, rather than wild horses, adversely affect the ranges condition and resources, before
deciding to significantly reduce the low wild horse AML in the Devils Garden WHT, the Forest
Service violated NEPA and its implementing regulations.
87. By utilizing outdated and discredited information and guidance documents in
deciding to adopt a new AML for wild horses, the Forest Service has failed to take a hard look
at the effect of its chosen action, in violation of NEPA and its implementing regulations
88. By failing to undertake a genetic study of the wild horse population at Devils
Garden before significantly reducing the low AMLs for the two new isolated populations that are
no longer connected and which will no longer naturally interchange genetic material, the Forest
Service has failed to take a hard look at the effect of its chosen action, in violation of NEPA
and its implementing regulations.
89. By failing to adequately respond to public comments that the Forest Service must
analyze livestock grazing at Devils Garden when seeking to address rangeland conditions, and
must ensure the long-term sustainability and genetic viability of the wild horse population at
Devils Garden, the Forest Service has violated the public participation of NEPA and its
implementing regulations.
90. The Forest Service also violated NEPA by taking an action significantly
reducing the low AML in the Devils Garden WHT that will substantially and fundamentally
alter the environmental status quo in the WHT by allowing the Forest Service to maintain 69 less
horses in the WHT than it has ever previously maintained, which could lead to serious genetic
concerns. These concerns about the agencys significant reduction in the low AML are
magnified by the Forest Services permanent elimination of the middle portion as part of the
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WHT, since that major boundary modification will frustrate natural genetic interchange between
the eastern and western portions and most likely separate wild horses of the same band affecting
their natural behaviors. Thus, while the significant reduction in the low AML to 206 wild horses
would have itself been significant as that term is defined under NEPA thereby triggering the
agencys obligation to prepare an EIS, see 40 C.F.R. 1508.27, in conjunction with the Forest
Services elimination of the middle portion and severing the connectivity that has long existed in
the single contiguous WHT, the reduction of the low AML to only 101 wild horses in the
western portion and 105 wild horses in the eastern portion is an extremely significant and
precedential change from the legal and environmental status quo which therefore required a
detailed analysis in an EIS. By failing to prepare an EIS for this decision, and instead by issuing
an inadequate FONSI and accompanying EA, the Forest Service violated NEPA and its
implementing regulations. This violation is especially egregious given the agencys stated
objective that the revised plan should support[] a healthy, genetically diverse horse population.
89. The Forest Services January 2013 AML Evaluation the purpose of which was
to guide and inform the agencys final decision asserted the AML was established as 0 wild
horses for the two areas comprising the middle portion of the Devils Garden WHT. Thus, the
AML Evaluation did not even consider the possibility that the Draft EAs Proposed Action
issued one month earlier would not be adopted, but instead assumed the dramatic elimination of
the middle portion as part of any final decision rendered by the agency. Accordingly, the
Proposed Action in this respect was a predetermined outcome in the agencys view, meaning
that the Forest Services decisionmaking process was nothing more than an attempt to justify or
rationalize a decision that the agency had already made long before issuing a final decision or
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final NEPA document, in violation of binding NEPA regulations. See 40 C.F.R. 1502.2(g)
(requiring that the NEPA process shall serve as the means of assessing the environmental
impact of proposed agency actions, rather than justifying decisions already made) (emphasis
added); id. 1502.5 (requiring that NEPA review will not be used to rationalize or justify
decisions already made) (emphasis added).
90 As set forth above, the newly adopted AML violates the NEPA and its
implementing regulations in various ways and is arbitrary, capricious, an abuse of discretion and
not in accordance with law (i.e., NEPA), in violation of Section 706(2) of the APA.
91. The Forest Services actions have injured plaintiffs in the manner described in
paragraphs 10-18.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that the Court enter an Order:
1. Declaring that defendants have violated the Wild Free-Roaming Horses and
Burros Act, the National Forest Management Act, the National Environmental Policy Act, the
Administrative Procedure Act, and relevant implementing regulations;
2. Setting aside the challenged agency decision for failing to comply with governing
laws, and remanding the decision for further consideration by the Forest Service;
3. Enjoining defendants from taking any further actions to implement the decision
until the agency has fully complied with these laws on remand;
4. Awarding plaintiffs their attorneys fees and costs in this action;
5. Granting plaintiffs any further relief as the Court may deem just and proper.
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Respectfully submitted, _________________________________ William S. Eubanks II (D.C. Bar No. 987036) MEYER GLITZENSTEIN & CRYSTAL 1601 Connecticut Ave., N.W., Suite 700 Washington, D.C. 20009 (202) 588-5206 / (202) 588-5049 fax [email protected] ___/s/ David Zaft_______________ David Zaft (CA Bar No. 237365) Pro Hac Vice Application Pending Matthew W. OBrien (CA Bar No. 261568) Pro Hac Vice Application Pending CALDWELL LESLIE & PROCTOR, PC 725 S. Figueroa Street, 31st Floor Los Angeles, CA 90017 (213) 629-9040 / (213) 629-9022 fax [email protected] [email protected] ___/s/ Jeff Pierce_______________ Jeffrey Pierce (CA Bar No. 293085) Pro Hac Vice Application Pending ANIMAL LEGAL DEFENSE FUND 170 Cotati Ave. Cotati, CA 94931 (707) 795-2533 / (707) 795-7280 [email protected]
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