Friends of Animals v. Pendley

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

FRIENDS OF ANIMALS,
Plaintiff,

v.
WILLIAM PERRY PENDLEY, in his official Civil Action No. 19-3506 (CKK)
capacity as the Deputy Director of the United
States Bureau of Land Management, and THE
UNITED STATES BUREAU OF LAND
MANAGEMENT
Defendants.

MEMORANDUM OPINION
(February 28, 2021)

The Secretary of the Interior and the United States Bureau of Land Management (“BLM”)

are responsible for managing wild horse and burro populations on public lands throughout the

country. In this case, the animal-rights organization Friends of Animals (“Plaintiff”) argues that

BLM exceeded the bounds of its authority when managing these animals. Plaintiff specifically

challenges two distinct BLM actions: a 2019 BLM instruction memorandum (the “2019 Instruction

Memorandum”) and a 2019 BLM decision to remove wild horses and burros over a ten-year period

from the Twin Peaks Herd Management Area, a range along the California-Nevada border (the

“2019 Gather Plan”). Based on the record before the Court and publicly available information,

BLM has not yet carried out or scheduled any animal round ups under the 2019 Gather Plan, as of

the present date.

Plaintiff’s complaint raises seven counts. In Counts I, II, III, IV, and V, Plaintiff challenges

the 2019 Gather Plan by asserting that the plan violates both the Wild Free-Roaming Horses and

Burros Act (“WHBA”) and the National Environmental Policy Act (“NEPA”). In Counts VI and

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VII, Plaintiff challenges the 2019 Instruction Memorandum, arguing that BLM issued the

instruction memorandum in violation of the Administrative Procedure Act (“APA”). Now pending

before the Court is Plaintiff’s motion for summary judgment, seeking judgment on each of these

seven counts. Also pending before the Court is Defendants’ cross-motion for summary judgment,

which requests judgment in favor of Defendants on each of Plaintiff’s seven counts.

Upon consideration of the briefing, the relevant authorities, and the record as a whole, 1 the

Court first concludes that the 2019 Instruction Memorandum does not violate the APA. Therefore,

the Court will GRANT summary judgment in favor of Defendants, as to Counts VI and VII, and

DISMISS WITH PREJUDICE those two counts. The Court, however, will not reach the merits

of the remaining Counts I, II, III, IV, and V, at this time. The Court has identified sua sponte a

threshold problem with the justiciability of these five counts, which each pertain to the 2019 Gather

Plan. Because the parties did not address this question of justiciability in their briefs, the Court

will HOLD IN ABEYANCE the parties’ cross-motions for summary judgment on Counts I, II,

III, IV, and V, and permit the parties an opportunity to respond to the Court’s justiciability analysis

presented herein.

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The Court’s consideration has focused on the following briefing and material submitted by the parties:
• Compl., ECF No. 1;
• Pl.’s Mot. for Summ. J. (“Pl.’s Mot.”), ECF No. 23;
• Defs.’ Mem. in Opp’n to Pl.’s Mot. & in Supp. of Cross-Mot. for Summ. J. (“Defs.’ Mot.”), ECF
No. 24-1;
• Pl.’s Reply in Supp. of Pl.’s Mot. for Summ. J. & Opp’n to Defs.’ Cross-Mot. for Summ. J. (“Pl.’s
Opp’n”), ECF No. 26;
• Defs.’ Reply in Supp. of Cross-Mot. for Summ. J. (“Defs.’ Reply”), ECF No. 28; and,
• Joint App’x of Admin. Record (“TP”), ECF No. 29.
In an exercise of its discretion, the Court finds that holding oral argument in this action would not be of
assistance in rendering a decision. See LCvR 7(f).

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 I. BACKGROUND

A. Statutory Framework

In 1971, Congress enacted the Wild Free-Roaming Horses and Burros Act (“WHBA”), a

law which identified wild horses and burros “as an integral part of the natural system of the public

lands” and called for their protection “from capture, branding, harassment, or death.” 16 U.S.C.

§ 1331. “By 1978, however, Congress recognized that circumstances had changed,” as wild horse

and burro populations increased to the point of threatening natural habitats and resources. Am.

Horse Prot. Ass’n, Inc. v. Watt, 694 F.2d 1310, 1316 (D.C. Cir. 1982) (Ginsburg, Ruth B., J.).

Accordingly, Congress amended the WHBA in 1978 to strike “a new balance . . . between

protecting wild horses and competing interests in the resources of the public ranges.” Id. “The

main thrust of the 1978 amendments is to cut back on the protection the [WHBA] affords wild

horses, and to reemphasize other uses of the natural resources wild horses consume.” Id.

As amended, the WHBA places “[a]ll wild free-roaming horses and burros . . . under the

jurisdiction of the Secretary [of the Interior] for the purpose of management and protection.” 16

U.S.C. § 1333(a). The WHBA now requires the Secretary, acting through the Bureau of Land

Management (“BLM”), “to manage wild free-roaming horses and burros in a manner that is

designed to achieve and maintain a thriving natural ecological balance on the public lands.” Id.

But in doing so, BLM must conduct wild horse and burro “‘management activities’ ‘at the minimal

feasible level,’ i.e., with as little disruption in the horses’ [and burros’] lives as possible.” Am.

Wild Horse Campaign v. Bernhardt, 442 F. Supp. 3d 127, 139 (D.D.C. 2020) (quoting 16 U.S.C.

§ 1333(a)).

“To carry out its duty to manage the wild horses [and burros] on the public lands under its

control,” BLM administers “herd management areas” (“HMAs”). Am. Wild Horse Campaign, 442

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F. Supp. 3d at 139. In each HMA, BLM “determines an ‘appropriate management level’ (“AML”)

for the wild horse and burro populations,” Fund for Animals, Inc. v. U.S. Bureau of Land Mgmt.,

460 F.3d 13, 15 (D.C. Cir. 2006), in conjunction with the agency’s broader land use plan for the

area, see 43 C.F.R. §§ 4710.1, 4710.3-1. BLM defines AML “as the median number of adult wild

horses or burros determined through BLM’s planning process to be consistent with the objective

of achieving and maintaining a thriving ecological balance and multiple-use relationship in a

particular area.” Fund for Animals, Inc., 460 F.3d at 16.

Once the agency sets an AML for a given HMA, the WHBA directs BLM to “determin[e]

where wild horse . . . overpopulations exist.” Am. Horse Prot. Ass’n, Inc., 694 F.2d at 1317 (citing

16 U.S.C. § 1333(b)(1)). Where BLM determines that “an overpopulation exists on a given area

of the public lands and that action is necessary to remove excess animals, [BLM] shall immediately

remove excess animals from the range so as to achieve appropriate management levels.” 16 U.S.C.

§ 1333(b)(2). The WHBA requires the BLM to determine the “necessity” of a removal on the

basis of “current” information. Id. But within this framework, “‘the agency has wide discretion

in how it addresses [an identified] overpopulation.’” Am. Wild Horse Campaign, 442 F. Supp. 3d

at 154 (quoting W. Rangeland Conservation Ass’n v. Zinke, 265 F. Supp. 3d 1267, 1282 (D. Utah

2017)). For example, BLM may initiate a gather of excess animals or employ other population

control measures, such as fertility controls and sterilization. See Fund for Animals, Inc., 460 F.3d

at 23; TP 1, 443. BLM has developed an agency handbook and instruction memoranda, which

provide guidance on how agency personnel should manage HMAs and carry out necessary animal

removals. See TP 12862–65; TP 12895–98; TP 12906.

In its effort to manage wild horse and burro populations, BLM must also comply with the

requirements of the National Environmental Policy Act (“NEPA”). See 42 U.S.C. § 4331. NEPA

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requires federal agencies to “identify and assess in advance the likely environmental impact of

[their] proposed actions, including its authorization or permitting of private actions.” Sierra Club

v. U.S. Army Corps of Engineers, 803 F.3d 31, 36 (D.C. Cir. 2015) (citing Dep’t of Transp. v. Pub.

Citizen, 541 U.S. 752, 756–57 (2004)). NEPA “serves the twin purposes of ensuring that (1)

agency decisions include informed and careful consideration of environmental impact, and (2)

agencies inform the public of that impact and enable interested persons to participate in deciding

what projects agencies should approve and under what terms.” Id. at 36–37 (citing Pub. Citizen,

541 U.S. at 768). NEPA accomplishes these purposes by requiring agencies to take a “‘hard look’

at their proposed actions’ environmental consequences in advance of deciding whether and how

to proceed.” Id. at 37 (citing Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350–51

(1989)).

NEPA’s “major action-forcing provision . . . is the requirement that all agencies of the

Federal government prepare a detailed environmental analysis”—an Environmental Impact

Statement (“EIS”)—for “major Federal actions significantly affecting the quality of the human

environment.” Found. on Econ. Trends v. Heckler, 756 F.2d 143, 146 (D.C. Cir. 1985) (quoting

42 U.S.C. § 4332(C) (internal quotation marks omitted)). An EIS must assess the action’s

anticipated “direct and indirect environmental effects,” and consider “alternatives that might lessen

any adverse environmental impact.” Sierra Club, 803 F.3d at 37 (citing 42 U.S.C. § 4332(C); 40

C.F.R. § 1508.11)). “If any significant environmental impacts might result from the proposed

agency action, then an EIS must be prepared before the agency action is taken.” Grand Canyon

Trust v. FAA, 290 F. 3d 339, 340 (D.C. Cir. 2002) (quoting Sierra Club v. Peterson, 717 F.2d

1409, 1415 (D.C. Cir. 1983)).

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 If, however, it is unclear whether an action will “significantly affect[ ] the quality of the

human environment,” the federal agency “may first prepare an Environmental Assessment

(“EA”).” Theodore Roosevelt Conservation P’ship v. Salazar, 616 F.3d 497, 503 (D.C. Cir. 2010)

(internal citations and quotation marks omitted). An EA is “essentially, a preliminary

consideration of potential environmental effects in a concise public document, designed to provide

sufficient evidence and analysis for determining whether an EIS is needed.” Sierra Club, 803 F.3d

at 37 (internal citations and quotation marks omitted). The EA must discuss the “purpose and need

for the proposed action, alternatives . . . and the environmental impacts of the proposed action and

alternatives.” 40 C.F.R. § 1501.5(c)(2). If the agency determines based on its EA that an EIS is

not required, then the agency must issue a “finding of no significant impact (“FONSI”), which

“briefly presents the reasons why the proposed agency action will not have a significant impact on

the human environment.” Pub. Citizen, 541 U.S. at 757–58 (internal citations omitted). “Each

form of NEPA analysis—EA/FONSI or EIS—requires public notice and comment, . . . and each

is subject to judicial review.” Sierra Club, 803 F.3d at 37–38 (citing Pub. Citizen, 541 U.S. at

763–64; Grand Canyon Trust, 290 F.3d at 340–42).

B. Factual Background

This case involves a challenge to two BLM actions carried out in the agency’s ongoing

effort to effectively manage wild horse and burro populations in accordance with the WHBA and

NEPA. First, Plaintiff challenges BLM’s Permanent Instruction Memorandum 2019-004 (the

“2019 Instruction Memorandum”). See Pl.’s Mot. at 3–4. The agency issued the 2019 Instruction

Memorandum on March 15, 2019 to provide BLM field officers with guidance on making wild

horse and burro gather decisions. See TP 12862–65. The 2019 Instruction Memorandum

supersedes a 2010 BLM instruction memorandum and “amends Chapter 7 of the 4700-1, Wild

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Horse and Burro Management Handbook, which directed that [wild horse and burro] gather

decisions be issued 31 to 76 days prior to initiation of gather activities.” Id. at 12863. Instead,

under the 2019 Instruction Memorandum, such “gather decisions should be issued at least 14 days

prior to the proposed gather start date.” Id. The 2019 Instruction Memorandum also states that

“BLM should issue decisions authorizing gathers, removals, or population control actions through

a phased approach or over a multi-year period when it determines that such an approach would

help it achieve its management objectives.” Id. at 12864 (emphasis added). According to the 2019

Instruction Memorandum, “[i]f the BLM issues a multi-year or open-ended decision to gather and

manage [wild horses and burros] on the public lands, then no further decision is required to

continue implementing the action unless the BLM determines that a change in conditions or

objectives requires a new NEPA analysis and decision.” Id.

Second, Plaintiff challenges a specific BLM gather decision made in November 2019,

approving the phased removal of excess wild horses and burros from the Twin Peaks HMA over

a ten-year period. See TP 1; Pl.’s Mot. at 9–11. The Twin Peaks HMA comprises nearly 790,000

acres of public and private lands situated on the California-Nevada border. See TP 14, 22, 37.

Pursuant to a 2008 BLM resource management plan, the Twin Peaks HMA includes five home

ranges for wild horses and burros, see id. at 1062, and operates under an established AML range

of 448 to 758 wild horses and 72 to 116 burros, id. at 22. Since 1976, BLM has carried out

approximately 25 gathers of wild horses and burros throughout the Twin Peaks HMA, in an effort

to maintain a population size within the boundaries of the established AML ranges. See id. at 56.

BLM last conducted a gather at the Twin Peaks HMA in 2010. See id. at 14.

In 2019, BLM conducted a direct animal count within and outside of the Twin Peaks HMA.

See id.; 16 U.S.C. § 1333(b)(1). This survey revealed a population of approximately 2,338 wild

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horses, 590 burros, and 39 mules at the Twin Peaks HMA. See TP 56, 10652. These population

totals were “530 percent over the low end of AML for wild horses and more than 720 percent over

the low end of AML for burros.” Id. at 1. Moreover, BLM found that this significant excess of

wild horses and burros threatened the natural ecological balance of the Twin Peaks HMA and that

removal of the excess animals was necessary to “protect rangeland resources from further

degradation.” Id.; see also 16 U.S.C. § 1333(b)(2). Accordingly, BLM proposed a ten-year plan

to gather and remove excess wild horses and burros from the Twin Peaks HMA and “implement a

range of fertility controls to maintain the population to within AML.” TP 660. On May 31, 2019,

BLM submitted the proposed gather plan, along with a preliminary environmental assessment

report of the plan for public review and comment. See id. at 656–839. In response, the agency

received approximately 5,440 public comments, see id. at 5, including a comment from Plaintiff,

see id. at 210.

In November 2019, BLM issued the Final Twin Peaks Herd Management Area Wild Horse

and Burro Gather Plan Environmental Assessment, see id. at 18–207, which included an appendix

providing the agency’s responses to the public comments received, see id. at 208–652. BLM also

issued a FONSI, concluding that the proposed gather plan for the Twin Peaks HMA would not

“constitute a major federal action having a significant effect on the human environment” and,

therefore, an EIS for the plan under NEPA was not required. Id. at 17. BLM then issued its

decision record for the final Twin Peaks Herd Management Area Wild Horse and Burro Gather

Plan (the “2019 Gather Plan”). See id. at 1–13.

Under the final 2019 Gather Plan, BLM will “gather and remove as many excess wild

horses, burros, and mules as feasible from within and outside the Twin Peaks HMA for a period

of 10 years from the initial gather until low AML (448 horses and 72 burros) is reached for the

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reproducing population.” Id. at 1. More specifically, the 2019 Gather Plan will include “[m]ultiple

gathers over the course of 10 years,” and “[a]fter each gather an aerial survey [will] be completed

to count the remaining population, as funding allows.” Id. Additionally, the 2019 Gather Plan

involves “the application of fertility control [treatment] to all mares that are released.” Id. The

plan also states that “[a]fter low AML is reached . . . a portion of male horses would be sterilized,

either by gelding (neutering) or vasectomy, and returned to the HMA.” Id. at 2. Finally, under

the 2019 Gather Plan, the managed population of wild horses within the Twin Peaks HMA will

not exceed a “60:40 male to female ratio.” Id.

Importantly, as of the present date, BLM has not yet carried out or scheduled any round

ups at the Twin Peaks HMA under the 2019 Gather Plan. In the decision record for the 2019

Gather Plan, BLM committed to providing public notice of any round up carried out under the

plan, see TP 8, but the parties’ briefs do not indicate that such a round up has occurred. Moreover,

the Court has continuously reviewed publicly available sources, including the agency’s official

website, to identify whether BLM has scheduled any round ups under the 2019 Gather Plan. As

of the present date, the Court has not identified any notice of a scheduled round up at the Twin

Peaks HMA under the 2019 Gather Plan challenged in this case. 2

C. Procedural Background

Plaintiff filed its complaint before this Court on November 21, 2019, challenging both the

2019 Instruction Memorandum and the 2019 Gather Plan. See Compl. ¶¶ 1–11. Plaintiff’s

complaint asserts seven causes of action, collectively alleging violations of the APA, the WHBA,

and NEPA. See id. ¶¶ 134–161. Because the WHBA and NEPA lack a specific statutory review

2
See https://www.blm.gov/programs/wild-horse-and-burro/herd-management/gathers-and-removals/
california (last visited Feb. 28, 2021) (showing “No Gathers At This Time” scheduled for the Twin Peaks
HMA).

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provision, challenges under those statutes are also reviewed pursuant to the APA. Fund for

Animals, Inc. v. U.S. Bureau of Land Mgmt., 460 F.3d 13, 18 (D.C. Cir. 2006).

In Counts I and II, Plaintiff alleges that the 2019 Gather Plan violates the WHBA because

its fails to make a proper excess determination based on “current” information regarding the Twin

Peaks HMA wild horse and burro population, see Compl. ¶¶ 134–36, and also because the gather

plan fails to adequately protect wild horses and burros, as required by the WHBA, see id. ¶¶ 137–

40. Next, in Counts III, IV, and V of the complaint, Plaintiff alleges that the 2019 Gather Plan

runs afoul of NEPA because BLM failed to prepare an EIS for the plan, see id. ¶¶ 141–44, failed

to consider reasonable alternatives to the 2019 Gather Plan, see id. ¶¶ 145–47, and failed to take a

“hard look” at the gather plan’s environmental impacts, see id. ¶¶ 148–51. Finally, in Counts VI

and VII of the complaint, Plaintiff alleges that the 2019 Instruction Memorandum violates the APA

because BLM issued it without public notice and comment, see id. ¶¶ 152–55, and also because

the 2019 Instruction Memorandum constitutes an unexplained change in the agency’s wild horse

and burro removal policy, see id. ¶¶ 156–61.

Defendants answered Plaintiff’s complaint on January 31, 2020, see generally Answer,

ECF No. 9, and subsequently filed an amended answer on March 9, 2020, see generally Am.

Answer, ECF No. 18. Then, on June 8, 2020, Plaintiff filed a motion for summary judgment,

requesting that the Court vacate and remand both the 2019 Instruction Memorandum and the 2019

Gather Plan, and further enjoin the implementation of the 2019 Gather Plan at the Twin Peaks

HMA. See Pl.’s Mot. at 45. In turn, Defendants filed a cross-motion for summary judgment

requesting that the Court deny Plaintiff’s summary judgment motion and uphold both the 2019

Instruction Memorandum and the 2019 Gather Plan. See Defs.’ Mot. at 1. The parties have now

fully briefed their cross-motions and have filed the administrative record before the Court.

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Accordingly, Plaintiff’s motion for summary judgment and Defendants’ cross-motion for

summary judgment are now ripe for the Court’s review.

II. LEGAL STANDARD

Under Rule 56(a) of the Federal Rules of Civil Procedure, “[t]he court shall grant summary

judgment if the movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). However, “when a party

seeks review of agency action under the APA [before a district court], the district judge sits as an

appellate tribunal. The ‘entire case’ on review is a question of law.” Am. Bioscience, Inc. v.

Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001). Accordingly, “the standard set forth in Rule 56[

] does not apply because of the limited role of a court in reviewing the administrative record. . . .

Summary judgment is [ ] the mechanism for deciding whether as a matter of law the agency action

is supported by the administrative record and is otherwise consistent with the APA standard of

review.” Southeast Conference v. Vilsack, 684 F. Supp. 2d 135, 142 (D.D.C. 2010).

The APA “sets forth the full extent of judicial authority to review executive agency action

for procedural correctness.” F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 513 (2009). It

requires courts to “hold unlawful and set aside agency action, findings, and conclusions” that are

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;” “contrary

to constitutional right, power, privilege or immunity;” “in excess of statutory jurisdiction,

authority, or limitations, or short of statutory right;” or, in certain circumstances, “unsupported by

substantial evidence.” 5 U.S.C. § 706(2)(A)-(C), (E). “This is a ‘narrow’ standard of review as

courts defer to the agency’s expertise.” Ctr. for Food Safety v. Salazar, 898 F. Supp. 2d 130, 138

(D.D.C. 2012) (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,

463 U.S. 29, 43 (1983)). However, an agency is still required to “examine the relevant data and

11
articulate a satisfactory explanation for its action including a rational connection between the facts

found and the choice made.” Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43 (internal quotation marks

omitted). “Moreover, an agency cannot ‘fail[ ] to consider an important aspect of the problem’ or

‘offer[ ] an explanation for its decision that runs counter to the evidence’ before it.” Dist. Hosp.

Partners, L.P. v. Burwell, 786 F.3d 46, 57 (D.C. Cir. 2015) (quoting Motor Vehicle Mfrs. Ass’n,

463 U.S. at 43).

III. DISCUSSION

A. 2019 Instruction Memorandum

The Court will first consider Plaintiff’s request to set aside the 2019 Instruction

Memorandum issued by BLM in March 2019. In its complaint, Plaintiff asserts two claims in

favor of invalidation. First, Plaintiff alleges that the 2019 Instruction Memorandum is a “rule,”

that should have undergone the notice and comment requirements prescribed by the APA. See

Compl. ¶¶ 152–55. Second, Plaintiff alleges that the 2019 Instruction Memorandum constitutes

an unexplained shift in BLM policy. See id. ¶¶ 156–61. The Court will address each claim in turn.

1. The 2019 Instruction Memorandum Does Not Require Notice And Comment

In Count VI of the complaint, Plaintiff alleges that BLM “failed to comply with the notice

and comment rulemaking requirements of the APA” when issuing the 2019 Instruction

Memorandum. Compl. ¶ 154. The APA requires an agency “to publish notice of proposed

rulemaking in the Federal Register and to accept and consider public comments on its proposal”

when promulgating a “legislative rule.” Mendoza v. Perez, 754 F.3d 1002, 1020–21 (D.C. Cir.

2014). “[L]egislative rules are those that grant rights, impose obligations, [ ] produce other

significant effects on private interests, or . . . effect a change in existing law or policy.” Am. Tort

Reform Ass’n v. Occupational Safety & Health Admin., 738 F.3d 387, 395 (D.C. Cir. 2013)

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(internal quotation marks and citations omitted). “Stated differently, a rule is legislative, and

therefore must undergo notice and comment, when it changes the law, or effectively amends a

prior legislative rule.” Ciox Health, LLC v. Azar, 435 F. Supp. 3d 30, 66 (D.D.C. 2020) (internal

quotation marks and citations omitted).

“On the other hand, ‘[a]n agency action that merely explains how the agency will enforce

a statute or regulation—in other words, how it will exercise its broad enforcement discretion or

permitting discretion under some extant statute or rule—is a general statement of policy,’” which

does not require notice and comment under the APA. Vanda Pharm., Inc. v. Food & Drug Admin.,

436 F. Supp. 3d 256, 269 (D.D.C. 2020) (quoting Nat’l Mining Ass’n v. McCarthy, 758 F.3d 243,

252 (D.C. Cir. 2014)). The line distinguishing legislative rules can be “blurry,” Vanda Pharm.,

Inc., 436 F. Supp. 3d at 269, but in making the distinction courts focus on “both the actual legal

effects of the agency action and the agency’s characterization of the action,” Ciox Health, 435 F.

Supp. 3d at 66. And importantly, “to ascertain the nature of an agency action, courts should ground

the analysis in the idiosyncratic regime of statutes and regulations that govern it.” Calif.

Communities Against Toxics v. E.P.A., 934 F.3d 627, 632 (D.C. Cir. 2019).

In this case, Plaintiff argues that the 2019 Instruction Memorandum is a “legislative rule,”

which requires notice and comment. See Pl.’s Mot. at 17–22. To support this position, Plaintiff

first argues broadly that the 2019 Instruction Memorandum is non-tentative and contains “binding

terms,” representative of its substantive effect on both the agency and the public. Id. at 18.

Plaintiff then asserts that the 2019 Instruction Memorandum also affects specific legal rights and

obligations. Here, Plaintiff contends that the instruction memorandum curtails public access rights

to BLM gather decisions by shortening the time between the issuance of a gather decision and the

actual start date of the gather to a period of “at least 14 days.” See id. at 19; TP 12863. Finally,

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Plaintiff argues that the 2019 Instruction Memorandum’s guidance regarding the possibility of

“phased” gathers over a multi-year period “changes BLM’s duty to issue site specific NEPA

analysis for each removal or implementing decision.” Pl.’s Mot. at 3–5, 19. For the reasons set

forth below, the Court ultimately disagrees with Plaintiff and concludes that the 2019 Instruction

Memorandum is a non-binding guidance document, not a legislative rule.

As an initial matter, “the hallmark of a binding rule is that ‘[i]t commands, it requires, it

orders, it dictates.’” Vanda Pharm., Inc., 436 F. Supp. 3d at 270 (quoting Nat’l Mining, 758 F.3d

at 252–53). But here, the 2019 Instruction Memorandum expressly qualifies its scope by directing

BLM field officials to adhere to its guidance “when feasible.” TP 12862. The 2019 Instruction

Memorandum also couches its more specific directives in advisory language. For example, with

regards to the pre-gather “protest period,” the 2019 Instruction Memorandum states that “[u]nless

an emergency situation or other relevant management considerations exist, gather decisions should

be issued at least 14 days prior to the proposed gather start date.” Id. at 12863 (emphasis added).

And with regards to the agency’s guidance on “phased” gathers, the 2019 Instruction

Memorandum recommends that “BLM should issue decisions authorizing gathers, removals, or

population control actions through a phased approach or over a multi-year period when it

determines that such an approach would help it achieve its management objectives.” Id. at 12864

(emphasis added). Similarly, the instruction memorandum states: “Because a one-time gather and

removal operation can be inadequate to achieve or sustain the AML, the BLM should consider

evaluating the effects of multiple gathers and other population control actions over a multi-year

period.” Id. at 12863 (emphasis added). Such permissive language about how BLM officials

“should” carry out agency actions “when feasible” or what they “should consider,” indicates that

14
the instruction memorandum is “meant to be precatory, not mandatory.” Ass’n of Flight

Attendants-CWA, AFL-CIO v. Huerta, 785 F.3d 710, 718 (D.C. Cir. 2015).

Next, the Court also considers “the agency’s own characterization” of the 2019 Instruction

Memorandum. Clarian Health West, LLC v. Hargan, 878 F.3d 346, 357 (D.C. Cir. 2017). Here,

the agency explains that the 2019 Instruction Memorandum “establishes policy and guidance for

the issuance of WHB gather decisions and NEPA compliance.” TP 12862. The agency also

straightforwardly states that the 2019 Instruction Memorandum “is not intended to, and does not,

create any right or benefit, substantive or procedural, enforceable at law or equity by a party against

the United States, its departments, agencies, instrumentalities or entities, its officers or employees,

or any other person.” Id. at 12865. While this description alone is not wholly dispositive, it

comports with the non-binding and precatory nature of the 2019 Instruction Memorandum

discussed above.

Finally, the 2019 Instruction Memorandum does not alter any legal rights or obligations.

First, the Court is not persuaded by Plaintiff’s argument that the 2019 Instruction Memorandum

changes legal rights by “cut[ting] the time that parties can protest or seek review [of a gather

decision] by more than half.” Pl.’s Mot. at 19. It is true, that the 2019 Instruction Memorandum

“amends” Chapter 7 of BLM’s Wild Horse and Management Handbook, which provided that

“gather/removal decisions shall be issued 31-76 days prior to the proposed gather start date.” TP

12953. Now, under the 2019 Instruction Memorandum “gather decisions should be issued at least

14 days prior to the proposed gather start date.” Id. at 12863 (emphasis added). The problem for

Plaintiff, however, is that neither the WHBA, NEPA, nor any of their implementing regulations,

require any protest period at all before the issuance of a BLM gather decision. See WildEarth

Guardians v. Bernhardt, No. 1:19-CV-00505-RB-SCY, 2020 WL 6799068, at *21 (D.N.M. Nov.

15
19, 2020). To the contrary, the WHBA states that BLM must “immediately remove excess animals

from the range,” 16 U.S.C. § 1333(b)(2) (emphasis added), and BLM’s regulations further explain

that an authorized BLM official “may provide that decisions to remove wild horses or burros from

public or private lands . . . shall be effective upon issuance or on a date established in the decision,”

43 C.F.R. § 4770.3(c) (emphasis added).

Accordingly, the 2019 Instruction Memorandum’s guidance that “gather decisions should

be issued at least 14 days prior to the proposed gather start date,” TP 12863, does not “change[]

the law, or effectively amend[] a prior legislative rule,” Ciox Health, LLC, 435 F. Supp. 3d at 66

(internal citation and quotation marks omitted). Instead, it simply revises an internal

administrative timeline for BLM officials included in the agency’s handbook. TP 12864. And, as

Defendants note, this BLM handbook itself did not undergo notice and comment and “does not

have the independent force and effect of law sufficient to bind BLM.” Friends of Animals v. Silvey,

353 F. Supp. 3d 991, 1005 (D. Nev. 2018), aff’d, 820 F. App’x 513 (9th Cir. 2020). As such, the

amended “protest period” in the 2019 Instruction Memorandum does not alter an existing legal

right or obligation flowing from a statute or regulation. See WildEarth Guardians, 2020 WL

6799068, at *21 (finding that “[n]o laws or regulations needed altering to shorten the timeline” set

forth for “protest periods” in a BLM instruction memorandum). Agencies like BLM are free to

amend their own internal deadlines without undergoing notice and comment. See Perez v. Mortg.

Bankers Ass’n, 575 U.S. 92, 96 (2015) (explaining that the APA exempts “rules of agency

organization, procedure, or practice” from the notice and comment requirements) (quoting 5

U.S.C. § 553(b)(A)).

Similarly, the Court is not persuaded by Plaintiff’s argument that the 2019 Instruction

Memorandum “changes BLM’s duty to issue a site specific NEPA analysis for each removal or

16
implementing decision.” Pl.’s Mot. at 19; see also Compl. ¶ 131. Plaintiff grounds this argument

on the memorandum’s statement that BLM officials “should issue decisions authorizing gathers,

removals, or population control actions through a phased approach or over a multi-year period,”

and “[i]f the BLM issues a multi-year or open-ended decision to gather and manage WHBs on the

public lands, then no further decision is required to continue implementing the action unless the

BLM determines that a change in conditions or objectives requires a new NEPA analysis and

decision.” TP 12864. As discussed above, however, this “precatory” language regarding phased

gathers does not bind BLM officials, but rather recommends a potential methodology for the

removal of excess animals. Ass’n of Flight Attendants, 785 F.3d at 718. Moreover, the statement

does not directly address, let alone alter, BLM’s continuing obligations to complete the relevant

NEPA documents before a gather decision and to submit them for public comment. See Sierra

Club, 803 F.3d at 37–38. Indeed, the 2019 Instruction Memorandum directs BLM officials to

“provide the public 30 days to review and comment on an Environmental Assessment (EA) for

conducting WHB gathers on the public lands.” TP 12862.

At bottom, Plaintiff is concerned with the implication in the 2019 Instruction Memorandum

that BLM officials may carry out a multi-year gather plan including multiple round ups, on the

basis of a single gather decision and NEPA analysis. See Pl.’s Mot. at 19. In Plaintiff’s view, the

agency does not have such authority. See id. at 24. But even if Plaintiff is correct in this matter,

the dispute is best framed as a question of interpretation. And within this context, the 2019

Instruction Memorandum’s statement regarding the use of phased gathers simply offers

interpretive guidance on a potential gather approach the agency may use to “exercise its broad

enforcement discretion . . . under some extant statute or rule,” here the WHBA. Vanda Pharm.,

Inc., 436 F. Supp. 3d at 269 (quoting Nat’l Mining Ass’n, 758 F.3d at 252). BLM’s interpretive

17
guidance on the statutes it administers does not have binding legal effect. See Ass’n of Flight

Attendants, 785 F.3d at 713.

On balance, the aforementioned factors convince the Court that the 2019 Instruction

Memorandum is a non-binding guidance document from BLM, not a “legislative rule.” As such,

the 2019 Instruction Memorandum did not require notice and comment under the APA. See id. at

716–17. The Court will, therefore, DENY Plaintiff’s motion for summary judgment on Count VI

and GRANT Defendants’ cross-motion for summary judgment on this Count.

2. The 2019 Instruction Memorandum Does Not Constitute An Unexplained Change In
BLM Policy

Next, in Count VII of the complaint, Plaintiff presents a separate basis for the invalidation

of the 2019 Instruction Memorandum. Here, Plaintiff argues that the 2019 Instruction

Memorandum redirected BLM’s wild horse and burro removal policy, but failed to provide an

adequate explanation for the agency’s change in course. See Compl. ¶¶ 156–61; Pl.’s Mot. at 22–

29. Plaintiff bases this claim on the “central principle of administrative law” that “when an agency

decides to depart from . . . past practices and official policies, the agency must at a minimum

acknowledge the change and offer a reasoned explanation for it.” Am. Wild Horse Pres. Campaign

v. Perdue, 873 F.3d 914, 923 (D.C. Cir. 2017). For the reasons below, however, the Court finds

that this claim also falls short.

a. Phased Gathers

To support its APA claim in Count VII, Plaintiff first argues that the 2019 Instruction

Memorandum implements a “new policy requiring issuance of multi-year, open-ended” phased

gather decisions. Pl.’s Mot. at 24; see also id. at 5. According to Plaintiff, the requirement of a

“phased gather” with multiple intervening round ups changes BLM’s wild horse and burro removal

policy in a number of interrelated ways. First, phased gathers allegedly shift BLM’s policy of

18
accepting public comments before each individual gather decision. See id. at 24. Second, the

phased gather approach also allegedly allows BLM to carry out gathers solely on the basis of AML,

without making a separate determination on the necessity of removal in advance of each round up.

See 16 U.S.C. § 1333(b)(2); Pl.’s Mot. at 24; TP 12952. And third, Plaintiff asserts that under a

phased gather approach BLM “will no longer prepare a NEPA document before each gather.” Pl.’s

Mot. at 24. 3

The Court is not persuaded by Plaintiff’s arguments. As an initial matter, Plaintiff’s

position relies on the assertion that the 2019 Instruction Memorandum “requires” multi-year

phased gathers. Pl.’s Mot. at 24. But this assertion goes too far. A plain reading of the 2019

Instruction Memorandum reveals that the document does not require, but merely recommends a

multi-year phased gather plan when “such an approach would help [the agency] achieve its

management objectives.” TP 12864. As such, even if Plaintiff’s arguments about the 2019

Instruction Memorandum were accurate, the document itself would not effectuate a binding policy

change on any of the fronts Plaintiff raises. See disc. supra at 14–18.

Moreover, Plaintiff’s arguments misrepresent the true effects of the 2019 Instruction

Memorandum. Contrary to Plaintiff’s assertions, the 2019 Instruction Memorandum does not

permit BLM gather decisions to go forward without public comment, NEPA analysis, or solely on

the basis of AML. See Pl.s Mot. at 24. Instead, the “phased gather” approach recommended by

the 2019 Instruction Memorandum merely allows BLM officials to carry out multiple round ups

3
Plaintiff also makes a passing argument that the 2019 Instruction Memorandum departs from a 1989 Herd
Management Area Plan (“HMAP”) for the Twin Peaks HMA. See Pl.’s Mot. at 23. As Plaintiff explains,
the 1989 HMAP calls for annual removal plans for the Twin Peaks HMA and states that “[n]o home range
will be gathered in consecutive years.” TP 12736. The Court is not persuaded, however, that the 2019
Instruction Memorandum, including its non-binding recommendation to consider phased gathers, departs
from this 1989 HMAP. Moreover, the record indicates that the provisions of the 1989 HMAP upon which
Plaintiff relies have been superseded by a 2008 resource management plan. See TP 442–43.

19
within the ambit of a single gather decision. See TP 12864. As Defendants explain, multiple

round ups may be a practical necessity where a single gather decision implicates hundreds or even

thousands of wild horses and burros, which cannot realistically be removed all at once. See Defs.’

Mot. at 7.

Nonetheless, before issuing the original gather decision itself, BLM must still abide by the

requirements of the WHBA, see 16 U.S.C. § 1333(b)(2), and NEPA, see 42 U.S.C. § 4321, et seq.

In this case, for example, BLM issued a phased gather plan for the Twin Peaks HMA, but only did

so after preparing a NEPA analysis and submitting it for public comment. See TP 5, 208–652.

Furthermore, the 2019 Gather Plan does not rest solely on a finding of excess wild horses and

burros, over the established AML ranges at the Twin Peaks HMA. Instead, the gather decision

also includes a finding that removal of those excess animals was “necessary,” 16 U.S.C. §

1333(b)(2), because of myriad factors, such as damage to riparian wetlands, threats to cultural

resources and private property, and the loss of vegetation, see TP 25, 42–45. This example

illustrates that the 2019 Instruction Memorandum does not insulate BLM’s gather decisions from

the WHBA and NEPA, but merely suggests that agency officials execute such gather decisions

over the course of multiple round ups where “such an approach would help [the agency] achieve

its management objectives.” TP 12864.

Furthermore, it is notable that a phased gather approach to wild horse and burro removal

is nothing new for BLM. While BLM has previously employed single round up gather plans, see,

e.g., Friends of Animals v. Haugrud, 236 F. Supp. 3d 131, 134–35 (D.D.C. 2017), the agency has

also implemented “phased” gather plans comprising multiple round ups over a multi-year period.

See, e.g., TP 11639 (ten-year gather plan at Smoke Creek Complex); Leigh v. Salazar, No. 3:13-

cv-00006, 2014 WL 4700016, at *1 (D. Nev. Sept. 22, 2014) (approving a ten-year phased-gather

20
plan for Owyhee Complex using a single environmental assessment). For this very reason, the

Ninth Circuit just recently concluded that “BLM’s use of a single gather plan and a single

environmental assessment to cover a period of years and a series of individual gather operations is

not a departure from the agency’s past practice.” Friends of Animals v. Silvey, 820 F. App’x 513,

516 (9th Cir. 2020). The Court agrees with this persuasive assessment and concludes here that the

2019 Instruction Memorandum does not effectuate a binding change in BLM’s wild horse and

burro removal policy and practice. Because the 2019 Instruction Memorandum “does not reflect

a policy change, the Administrative Procedure Act does not require BLM to provide an

explanation.” Id.; see also Troy Corp. v. Browner, 120 F.3d 277, 287 (D.C. Cir. 1997).

Finally, it also bears mention that the agency does, in fact, provide an explanation for its

“phased gather” recommendation. To start, the 2019 Instruction Memorandum states plainly that

“a one-time gather and removal operation can be inadequate to achieve or sustain the AML.” TP

12863. As such, the memorandum explains that a phased gather may increase the efficacy of a

removal operation, as it “enhance[s] flexibility by allowing the BLM to adapt to unforeseen

circumstances.” Id. at 12864. In particular, the agency could adjust under a phased gather

approach to “changes in national priorities, limited funding and holding space, reduced gather

numbers, hard-to-catch or trap-shy animals, and emergency gather needs that impact gather

schedules.” Id. Ultimately, the 2019 Instruction Memorandum explains that a phased gather

should be considered because “[t]his approach would provide the BLM sufficient time to achieve

management objectives.” Id. This agency explanation is facially reasonable.

In short, the “phased gather” recommendation in the 2019 Instruction Memorandum is

neither a shift in BLM policy nor is it unexplained. For these reasons, the Court cannot conclude

that it supports the alleged APA violation presented in Plaintiff’s Count VII.

21
 b. 14-Day Protest Period

Beyond its attack on “phased gathers,” Plaintiff separately argues the 2019 Instruction

Memorandum arbitrarily amends the pre-gather “protest period” previously endorsed by BLM.

See Pl.’s Mot. at 24. BLM’s wild horse handbook and its prior 2010 instruction memorandum

directed BLM officials to issue gather decisions 31-76 days before the proposed start date for the

gather. See TP 12897, 12953; Pl.’s Mot. at 24; Pl.’s Opp’n at 15. Under the 2019 Instruction

Memorandum, however, the agency now recommends that BLM officials issue gather decisions

“at least 14 days prior to the proposed gather start date.” TP 12863. On this point, Plaintiff has a

stronger argument that this revised pre-gather protest period in the 2019 Instruction Memorandum

constitutes a genuine “departure” in BLM’s wild horse and burro removal practice. See Am. Wild

Horse Pres. Campaign, 873 F.3d at 923.

Nonetheless, the 2019 Instruction Memorandum provides a clear explanation for this

change in practice. Specifically, the instruction memorandum explains that the original protest

period of 31-76 days was designed “to allow opponents of the gather decision to pursue an

administrative challenge before going to Federal Court.” TP 12863. The agency found from

experience, however, that such opponents would not pursue administrative remedies, but would

instead proceed straight to a federal court and request injunctive relief on the eve of the planned

gather. See id. Therefore, “the 31-76 day lead time did not achieve the intended purpose and

furthermore, impeded management capabilities . . . by constraining the BLM’s ability to respond

to changing national gather priorities and unforeseen scheduling and funding limitations as well

as compressing gather implementation windows.” Id. at 12864. Accordingly, the 2019 Instruction

Memorandum now recommends at least a 14-day protest period so as to “ensure[] the public has

an opportunity to meaningfully participate in WHB management decisions,” but also to “provide[]

22
the BLM with maximum flexibility for responding to on-range management needs.” Id. On the

present record, the Court finds that this explanation both acknowledges the agency’s revised

recommendation for a pre-gather protest period and offers a rational explanation for the new

approach. See F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 516 (2009).

In sum, and for the reasons set forth above, the Court concludes that the 2019 Instruction

Memorandum does not represent an unexplained change in BLM policy and is not, therefore,

“‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,’” as

Plaintiff alleges in Count VII. Am. Wild Horse Pres. Campaign, 873 F.3d at 923 (quoting 5 U.S.C.

§ 706(2)(A)). As such, the Court will DENY Plaintiff’s motion for summary judgment on Count

VII and GRANT Defendants’ cross-motion for summary judgment on this Count.

B. 2019 Gather Plan

Plaintiff’s remaining claims in Counts I, II, III, IV, and V each relate to the 2019 Gather

Plan—BLM’s specific plan to remove excess wild horses and burros from the animal population

at the Twin Peaks HMA. See TP 1–11. Collectively, these five counts challenge the 2019 Gather

Plan under both the WHBA and NEPA. See Compl. ¶¶ 134–51. As mentioned above, however,

BLM has not yet carried out or even scheduled any round ups at the Twin Peaks HMA under the

2019 Gather Plan. This fact raises a threshold question regarding the justiciability of Counts I, II,

III, IV, and V, which neither party addressed in their respective summary judgment briefing. See

Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 807–08 (2003). Accordingly, the Court

will HOLD IN ABEYANCE the parties’ cross-motions as to Counts I, II, III, IV, and V until after

the parties have an opportunity to respond to the Court’s justiciability concerns outlined herein.

23
 1. Justiciability and the Ripeness Doctrine

The jurisdiction of the federal courts is constrained by certain “doctrines of justiciability.”

Trump v. New York, 141 S. Ct. 530, 535 (2020). These justiciability doctrines include the

“ripeness” requirement, which courts may consider sua sponte. See Nat’l Park Hosp. Ass’n, 538

U.S. at 807–08. This Court cannot reach the merits of a claim, including those in Plaintiff’s Counts

I through V, unless such claims are “ripe” for judicial review. See, e.g., Wyoming Outdoor Council

v. U.S. Forest Service, 165 F.3d 43, 48 (D.C. Cir. 1999); Friends of Animals v. Haugrud, 236 F.

Supp. 3d 131, 134 (D.D.C. 2017).

The ripeness doctrine comprises two major components. The first “is subsumed into the

Article III requirement of standing, which requires a petitioner to allege inter alia an injury-in-fact

that is imminent or certainly impending.” Am. Petroleum Inst. v. E.P.A., 683 F.3d 382, 386 (D.C.

Cir. 2012) (quotation omitted). The second component of the ripeness doctrine, however, is

prudential, because “[e]ven if a case is ‘constitutionally ripe,’ . . . there may also be ‘prudential

reasons for refusing to exercise jurisdiction.’” Id. (quoting Nat’l Park Hosp. Ass’n, 538 U.S. at

808). Prudential ripeness turns on “‘the fitness of the issue for judicial decision and the hardship

to the parties of withholding court consideration.’” Garcia v. Acosta, 393 F. Supp. 3d 93, 105

(D.D.C. 2019) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967)). This prudential

doctrine “‘prevent[s] the courts . . . from entangling themselves in abstract disagreements over

administrative policies,” and also protects “agencies from judicial interference until an

administrative decision has been formalized and its effects felt in a concrete way by the challenging

parties.’” Nat’l Park Hosp. Ass’n, 538 U.S. at 807–08 (quoting Abbott Labs., 387 U.S. at 148–

24
49). As set forth below, Plaintiff’s Counts I, II, III, IV, and V, each present significant problems

under the doctrine of prudential ripeness.

2. Fitness

The first requirement of the prudential ripeness doctrine is that the legal issue in question

be “fit” for judicial review. “The fitness requirement promotes two important interests: first, ‘the

agency’s interest in crystallizing its policy before that policy is subjected to judicial review,’ and,

second, ‘the court’s interests in avoiding unnecessary adjudication and in deciding issues in a

concrete setting.’” Friends of Animals v. U.S. Bureau of Land Mgmt., No. CV 18-2029 (RDM),

2021 WL 230139, at *8 (D.D.C. Jan. 22, 2021) (quoting Wyo. Outdoor Council, 165 F.3d at 49).

“Under the fitness prong of this test, courts must consider (1) whether the claim raises a question

that ‘is purely legal, (2) whether consideration of the issue would benefit from a more concrete

setting, and (3) whether the agency’s action is sufficiently final.’” Garcia, 393 F. Supp. 3d at 105

(quoting Atl. States Legal Found. v. E.P.A., 325 F.3d 281, 284 (D.C. Cir. 2003)). “[E]ven purely

legal issues may be unfit for review.” Atl. States Legal Found., 325 F.3d at 284.

a. Counts I and II – WHBA Claims

First, the Court observes that Plaintiff’s WHBA claims against the 2019 Gather Plan do

not appear to be “fit” for judicial review on the present record. In Count I, Plaintiff alleges that

the 2019 Gather Plan and its potential for multiple round ups over a ten-year period violates the

WHBA’s requirement that BLM make gather decisions on the basis of “current” information. See

Compl. ¶ 135; 16 U.S.C. § 1333(b)(2). In its summary judgment motion, Plaintiff relatedly argues

that the 2019 Gather Plan violates the WHBA’s “immediacy” requirement. See Pl.’s Mot. at 14–

15. According to Plaintiff, “BLM does not have authority to issue open-ended decisions that allow

it to remove wild horses and burros over the course of ten years,” because these future round ups

25
will not have occurred “immediately” after the agency’s initial excess determination. Id. In

response, Defendants maintain that the WHBA “does not require excess determinations or AML

to be recalculated before each gather under a multi-year decision. Instead, it only requires BLM

to rely on the currently available data” before issuing the original gather decision, not each

subsequent round up thereunder. Defs.’ Mot. at 17.

The issues at play in Count II are related. There, Plaintiff argues that the 2019 Gather

Plan’s proposal to “continually roundup and remove wild horse and burros, administer fertility

controls, and sterilize a portion of the wild horse population” over a ten-year period “violates

BLM’s obligations to ensure management activities occur at the minimal feasible level.” Compl.

¶ 138. Specifically, Plaintiff contends that “removing 80% of the [Twin Peaks wild horse and

burro] population, repeatedly applying fertility controls, sterilizing a portion of the stallions, and

removing wild horses and burros to maintain a low AML will create a population that is neither

healthy nor self-sustainable.” Pl.’s Mot. at 17. Plaintiff also faults the 2019 Gather Plan for

permitting future round ups exclusively based on the current Twin Peaks AML, without making a

separate decision in the future regarding the “necessity” of each specific round up. See id. at 16.

While these issues in Counts I and II present “legal” questions, they are notably abstract

given the current record before the Court. See Atl. States Legal Found., 325 F.3d at 284. The

2019 Gather Plan for the Twin Peaks HMA indicates that “[m]ultiple gathers over 10 years would

occur” “until low AML is reached for the reproducing population” of wild horses and burros. TP

1. But, as Plaintiff notes, the plan “does not define the total number of horses or burros that could

be removed, nor does it specify when round ups and removals would occur.” Pl.’s Mot. at 10; see

also TP 1–11. In fact, neither party indicates whether BLM has even scheduled a round up under

the 2019 Gather Plan at this time. And with regards to fertility control and sterilization measures,

26
the 2019 Gather Plan is similarly opaque. The decision record simply notes that “BLM would

attempt to gather a sufficient number of wild horses to allow for the application of fertility control

. . . to all mares that are released,” TP 1, and that “a portion of male horses would be sterilized

either by gelding (neutering) or vasectomy,” id. at 2. This language says nothing concrete about

the number of mares and stallions that BLM will treat in practice or when such treatment might

occur, if at all. Finally, the 2019 Gather Plan creates further uncertainty by explaining that “BLM’s

funding and competing national priorities may affect the timing of gather operations and

population control components of the proposed action.” Id. Such administrative uncertainty

weighs directly against the “fitness” of the WHBA claims in Counts I and II.

In Friends of Animals v. United States Bureau of Land Management, Judge Randolph Moss

recently confronted a nearly identical problem regarding challenges Plaintiff made to four

additional BLM ten-year gather plans. In assessing the “fitness” of Plaintiff’s WHBA claims in

that case, Judge Moss first observed:

[T]he challenged Decisions contemplate future, discrete agency actions—
administering contraceptives to horses or removing them through future gathers—
over the course of ten years. But when and under what circumstances those actions
will occur remains to be determined. . . . The Decisions themselves set no timetables
and, indeed, only include vague descriptions of the criteria for conducting future
gathers.

Friends of Animals, 2021 WL 230139, at *4. Given this uncertainty, Judge Moss reasoned that

potential developments in BLM’s yet unplanned gathers might alter the legal landscape

confronting the Court. For example, Judge Moss explained that BLM’s potential violation of the

WHBA “may depend at least in part on how much time passes before the gather occurs” and

“whether any material conditions have changed” in the interim. Id. at *9. On this point, Judge

Moss stated:

FOA posits that the WH[B]A precludes the Bureau from conducting gathers based
on stale information and analyses. Yet the strength of that argument may turn on

27
 the passage of time and intervening conditions. A gather conducted next month that
merely completes (or attempts to complete) the Bureau’s prior effort to achieve
AML in the first instance poses different questions than a gather conducted years
from now, after the Bureau has achieved AML and the herd size has re-grown to
levels that strain the then-existing conditions on the range.

Id. In light of these yet unsettled factors, Judge Moss could not conclude that the disputed issues

in Plaintiff’s WHBA claims “[we]re fit for judicial determination.” Id.

Plaintiff’s WHBA claims in this case present a comparable challenge, and Judge Moss’s

persuasive reasoning in Friends of Animals applies with equal force. At this time, there is nothing

concrete in the record to indicate whether BLM has even planned an initial round up at the Twin

Peaks HMA under the 2019 Gather Plan, let alone what that round up might entail. And, as

explained above, the 2019 Gather Plan does not specify when or how such round ups must proceed.

As such, a number of questions still remain: When will BLM carry out round ups at the Twin

Peaks HMA under the 2019 Gather Plan and how many will occur? How many animals will the

agency remove in those round ups? How many mares will receive fertility treatment? How many

stallions will the agency neuter? The answers to these questions bear directly on the legal inquiries

under the WHBA presented in Plaintiff’s Counts I and II, but to answer such questions at this

juncture the Court must speculate about future BLM actions that have not yet been announced. In

this context, the WHBA claims before the Court “rest[] upon contingent future events that may

not occur as anticipated, or indeed may not occur at all,” Texas v. United States, 523 U.S. 296,

300 (1998), and would, therefore, benefit “from further factual development of the issues

presented,” Wyo. Outdoor Council, 165 F.3d at 48–49 (quotation omitted). For these reasons, the

Court concludes that Plaintiff’s WHBA claims against the 2019 Gather Plan do not yet appear “fit”

for judicial review.

28
 b. Counts III, IV, and V – NEPA Claims

Next, the Court also finds that similar “fitness” problems impede this Court’s review of

Plaintiff’s NEPA claims against the 2019 Gather Plan. As discussed above, Plaintiff raises three

NEPA claims in this case. In Count III, Plaintiff argues that BLM should have, but did not, prepare

an EIS before issuing the 2019 Gather Plan. See Compl. ¶¶ 141–44. Relatedly, Count IV alleges

that BLM failed to adequately “consider a reasonable range of alternatives” before issuing the

2019 Gather Plan, id. ¶ 146, and Count V faults the agency for failing to take a “hard look” at the

“cumulative, and site specific effects of the decision to continually roundup, permanently remove,

castrate, and/or administer fertility control to wild horses and burros from the Twin Peaks HMA

for a ten year period,” id. ¶ 150.

Plaintiff’s summary judgment briefing confirms that each of these NEPA claims turns on

the possibility of future BLM round ups and the conditions under which they might transpire. For

example, Plaintiff argues that “BLM’s decision to return castrated horses to the range involves

unique and unknown risks that are also highly controversial and therefore warrant preparation of

an EIS.” Pl.’s Mot. at 31. Similarly, Plaintiff argues that the “fertility control applications”

referenced in the 2019 Gather Plan will “have significant impacts on both a changing landscape

and a protected species.” Id. at 30. Plaintiff further complains that BLM failed to “consider the

possibility that less aggressive management of wild horses, and more tolerance of natural

processes” could achieve the desired result, instead of animal removal. Id. at 44. Finally, Plaintiff

asserts more generally that BLM violated NEPA when it “fail[ed] to take a hard look at the unique

risks of a combination of ten years of incessant roundups, unlimited fertility control applications,

and dangerous sterilizations.” Id. at 38.

29
 Like Plaintiff’s WHBA claims, these NEPA arguments present “abstract disagreements

over administrative policies,” Nat’l Park Hosp. Ass’n, 538 U.S. at 808, contingent upon “future

events that may not occur as anticipated, or indeed may not occur at all,” Texas, 523 U.S. at 296.

Plaintiff’s NEPA complaints emphasize the “potentially significant consequences” the agency

ignored when issuing the 2019 Gather Plan without an EIS, Pl.’s Opp’n at 18 (emphasis added),

and point to the cumulative impact of “incessant” round ups and “unlimited” fertility controls

applied over a ten year period at the Twin Peaks HMA, Pl.’s Mot. at 38. But the 2019 Gather Plan

presently before the Court does not commit to any specific number of round ups, nor does it require

the agency to carry out any specific level of fertility control or sterilization within the Twin Peaks

HMA. See TP 1–11; disc. supra at 24–25. To date, the record does not even indicate that BLM

has planned any formal round up under the 2019 Gather Plan for the Court to consider.

Consequently, an assessment of the 2019 Gather Plan’s procedural adequacy under NEPA would

implicate hypothetical conjecture about the round ups that might occur at the Twin Peaks HMA in

the future and the way in which BLM will carry them out.

Moreover, BLM has not “foreclose[d] the possibility that further NEPA analysis will be

needed to accommodate future management actions for the Twin Peaks HMA.” Defs.’ Mot. at 18.

To that end, the 2019 Instruction Memorandum explains that even during “multi-year” gather

plans, like the 2019 Gather Plan, the agency may still “determine[] that a change in conditions or

objectives requires a new NEPA analysis and decision.” TP 12864. And with regards to the 2019

Gather Plan at Twin Peaks, BLM notes that “[o]ngoing monitoring of forage condition and

utilization, water availability, aerial population surveys, and animal health would continue.” TP

73. Such monitoring may very well lead to new NEPA analysis and documentation from the

agency, negating or at least altering Plaintiff’s NEPA claims now before the Court. See Friends

30
of Animals, 2021 WL 230139, at *9 (“The length of time that passes between an agency’s . . .

NEPA analysis and the contemplated action may bear on the adequacy of that analysis, particularly

if conditions have changed in material respects. . . . [S]uch a change might well prompt the Bureau

to conduct the type of NEPA analysis that FOA claims is missing here.”).

For these reasons, the Court concludes Plaintiff’s NEPA claims in Counts III, IV, and V

would greatly benefit “from further factual development of the issues presented.” Wyo. Outdoor

Council, 165 F.3d at 48–49 (quotation omitted). As such, these claims do not yet appear fit for

judicial review, at least given the present record before the Court.

3. Hardship

The second factor of prudential ripeness considers “‘the hardship to the parties of

withholding court consideration.’” Garcia, 393 F. Supp. 3d at 105 (quoting Abbott Labs., 387

U.S. at 149). “Under the hardship prong, courts must ask whether the challenged administrative

action is likely to have a ‘direct and immediate effect’ on the ‘primary conduct’ of the plaintiff.”

Id. (quoting Toilet Goods Ass’n v. Gardner, 387 U.S. 158, 164 (1967)). The focus of this hardship

inquiry, however, “is not whether [the parties] have suffered any direct hardship, but rather

whether postponing judicial review would impose an undue burden on them or would benefit the

court.” Harris v. F.A.A., 353 F.3d 1006, 1012 (D.C. Cir. 2004) (emphasis in the original and

quotation omitted).

In this case, the potential source of hardship is that BLM might proceed with a round up at

the Twin Peaks HMA under the 2019 Gather Plan without notifying the public, including Plaintiff.

“[U]nder those circumstances, [Plaintiff’s] ability to bring a challenge could be mooted before it

even learns of the suspect agency action.” Friends of Animals, 2021 WL 230139, at *11. This

concern, however, is neutralized by BLM’s position on the record. The agency has committed “to

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the transparent maintenance of the Twin Peaks HMA over the ten-year decision period,” Defs.’

Reply at 6, and the 2019 Gather Plan specifically states that “BLM will provide a schedule to allow

members of the public to observe the Twin Peaks gather operations,” TP 8. “Prior to any gather

activity,” BLM will also “issue press releases” to notify the public. Id. And, under the 2019

Instruction Memorandum, BLM officials should provide such notice “at least 14 days prior to the

planned gather start date.” TP 12863 (emphasis added).

BLM’s commitment to providing public notice in advance of any future round ups at the

Twin Peaks HMA convinces the Court that Plaintiff will have an adequate opportunity to challenge

such a round up in advance of its consummation. Plaintiff has already demonstrated its ability to

quickly challenge round up decisions announced by BLM in the past. See Friends of Animals v.

U.S. Bureau of Land Mgmt., 232 F. Supp. 3d 53, 59 (D.D.C. 2017). “The Court is accordingly

unpersuaded, at least on the existing record, that any burden to the parties that might result from

postponing review outweighs the institutional interest in postponing review.” Friends of Animals,

2021 WL 230139, at *11.

****

In sum, the Court has identified serious “ripeness” questions impeding this Court’s review

of the WHBA and NEPA claims in Counts I, II, III, IV, and V. This threshold justiciability barrier

threatens to “entangle” the Court in the parties’ “abstract disagreements” about the 2019 Gather

Plan before BLM’s “administrative decision has been formalized and its effects felt in a concrete

way.” Nat’l Park Hosp. Ass’n, 538 U.S. at 807. Such judicial intervention would be particularly

inadvisable given that “BLM’s findings of wild horse overpopulations should not be overturned

quickly on the ground that they are predicated on insufficient information.” Am. Horse Prot. Ass’n,

Inc. v. Watt, 694 F.2d 1310, 1318 (D.C. Cir. 1982).

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 Nonetheless, the parties did not address the question of justiciability in their summary

judgment briefing. The Court will, therefore, HOLD IN ABEYANCE the parties’ cross-motions

as to Counts I, II, III, IV, and V, until after the parties have an opportunity to respond to the Court’s

justiciability concerns outlined above. The Court will provide a schedule for this supplemental

briefing in the Order accompanying this Memorandum Opinion.

IV. CONCLUSION

For the reasons set forth in this Memorandum Opinion, the Court will GRANT summary

judgment in favor of Defendants, as to Counts VI and VII, and DISMISS WITH PREJUDICE

those two counts. The Court, however, will HOLD IN ABEYANCE the parties’ cross-motions

for summary judgment on Counts I, II, III, IV, and V, and permit the parties an opportunity to

provide supplemental briefing on the issues of justiciability addressed in this Memorandum

Opinion. An appropriate Order accompanies this Memorandum Opinion.

Dated: February 28, 2021

/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge

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