UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

__________________________________________ ) IN DEFENSE OF ANIMALS, et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 09-2222 (PLF) ) KEN SALAZAR, et al., ) ) Defendants. ) __________________________________________)

OPINION

This matter is before the Court on four separate cross-motions for summary

judgment filed, respectively, by (1) plaintiffs In Defense of Animals, Craig C. Downer, and Terri

Farley; (2) defendants Ken Salazar, the Secretary of the United States Department of the Interior,

and various employees of the Interior Department’s Bureau of Land Managment (“BLM”);

(3) defendant-intervenor Safari Club International; and (4) defendant-intervenor the Department

of Wildlife of the state of Nevada. The Court heard oral argument on the motions on May 6,

2010.

After carefully considering the arguments presented by counsel both at oral

argument and in the parties’ memoranda, the relevant legal authorities, the administrative record,

and the record in this case as a whole, the Court concludes that two of the claims brought by the

plaintiffs are moot, and that the plaintiffs lack standing to pursue their other claims.1 The Court

1 The documents reviewed by the Court include the following: plaintiffs’ first amended complaint (“1st Am. Compl.”); plaintiffs’ second amended complaint (“2d Am. Compl.”); the administrative record (“A.R.”); plaintiffs’ motion for summary judgment (“PMSJ”); plaintiffs’ motion for injunctive relief, Ex. 1 (“Downer Affid.”); the federal therefore will deny all four pending motions for summary judgment and dismiss the plaintiffs’

second amended complaint.

I. BACKGROUND

As more fully described in the Court’s Opinion denying the plaintiffs’ motion for

a preliminary injunction, this action concerns the decision of the Bureau of Land Management

(“BLM”) to remove between two- and three-thousand wild horses from the Calico Mountains

Complex (“the Complex”), a 550,000-acre expanse of land located in Nevada’s Humboldt and

Washoe counties. See In Defense of Animals v. Salazar,

(D.D.C.

2009). Under the Wild Free-Roaming Horses and Burros Act,

et seq. (“Wild

Horse Act”), BLM is tasked with “protect[ing] and manag[ing] wild free-roaming horses and

burros as components of the public lands . . . in a manner that is designed to achieve and

maintain a thriving natural ecological balance on the public lands.”

(a). As

part of that obligation, BLM is required by statute to “determine appropriate management levels

of wild free-roaming horses and burros . . . and determine whether appropriate management

levels should be achieved by the removal or destruction of excess animals, or other options (such

as sterilization, or natural controls on population levels).”

§ 1333(b)(1). “Where [BLM]

defendants’ cross-motion for summary judgment; the cross-motion for summary judgment filed by Nevada’s Department of Wildlife; Safari Club International’s cross-motion for summary judgment; the plaintiffs’ opposition to the cross-motions/reply to the defendants’ opposition to the plaintiffs’ motion for summary judgment (“P. Opp.”); the replies of the federal defendants and the defendant-intervenors to the plaintiffs’ motion for summary judgment; plaintiffs’ reply to defendants’ opposition to the plaintiffs’ motion for injunctive relief, Ex. 1 (Supplemental Affidavit of Craig Downer) (“Supp. Downer Affid.”); plaintiffs’ reply to defendants’ opposition to plaintiffs’ motion for injunctive relief, Ex. 2 (“Farley Affid.”); P. Opp., Ex. 2 (“Downer Decl.”); P. Opp., Ex. 3 (“Farley Decl.”); and the transcript of oral argument (May 6, 2010) (“Tr.”).

2 determines . . . that an overpopulation [of wild horses or burros] exists on a given area of the

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

excess animals from the range so as to achieve appropriate management levels.” Id.

§ 1333(b)(2).

In 2009, estimating that the number of horses in the Calico Mountains Complex

exceeded the designated appropriate management level by over 2,000 horses, BLM developed a

plan to round up or “gather” “excess” horses from the Complex and place them in temporary

holding corrals. A.R. at 7016. Once placed in short-term holding facilities or temporary corrals

located within or just outside the Complex, individual horses would be “inspected by facility

staff and on-site contract [v]eterinarians to observe health and ensure the animals ha[d] been

cared for humanely.” Id. at 7017. Animals in poor physical condition might be euthanized. Id.

Remaining excess horses “would be transported to BLM facilities for adoption, sale, or long-

term holding.” Id. Such long-term holding facilities are located in Kansas, Oklahoma, and

South Dakota. In Defense of Animals v. Salazar,

. Pursuant to BLM’s

gather plan, if BLM gathered too many horses — more than the number that needed to be

removed in order to reach an appropriate management level — non-excess horses would be

released back to the range. A.R. at 7018.

The plaintiffs filed this lawsuit in December of 2009, seeking a preliminary

injunction that would prevent the occurrence of the proposed roundup. Plaintiffs asserted that

the method of gathering, sorting, and removing excess horses proposed by BLM violated the

Wild Horse Act and should be enjoined under the Administrative Procedure Act,

et seq. See 1st Am. Compl. ¶¶ 45-48, 55-58. They also contended that placing healthy,

3 unadopted horses in long-term holding facilities for indefinite periods of time was not permitted

under the terms of the Wild Horse Act.

.

In an Opinion issued on December 23, 2009, the Court denied the plaintiffs’

motion for a preliminary injunction, allowing the proposed roundup of excess horses to move

forward. It concluded that the plaintiffs were not likely to succeed on their claims that the

method of gathering the horses proposed by BLM was contrary to the Wild Horse Act and so

concluded that the gather should not be prevented. In Defense of Animals v. Salazar,

. At the same time, the Court suggested that the plaintiffs might prevail on

their claim that long-term holding of excess horses was not authorized by the Wild Horse Act,

which appears to provide only two means of dealing with unadopted, healthy excess horses:

euthanization and sale, possibly for slaughter.

. The Court nevertheless denied the

plaintiffs’ motion for a preliminary injunction related to that claim because it concluded that the

plaintiffs had failed to establish that they would suffer an imminent and tangible irreparable

injury in the absence of an injunction.

.

After the Court denied the plaintiffs’ motion for a preliminary injunction, the

Court allowed Safari Club International and Nevada’s Department of Wildlife to intervene as

defendants. Also after the Court’s initial ruling, the plaintiffs amended their complaint to add a

claim under the National Environmental Policy Act,

et seq. (“NEPA”). See

2d Am. Compl. ¶¶ 74-77. They contended that the Environmental Assessment prepared by BLM

in anticipation of the gather of horses from the Complex had unlawfully failed to consider the

impact of long-term holding on the removed horses themselves.

.

4 BLM conducted the proposed gather of horses from the Complex between

December 28, 2009 and February 5, 2010. PMSJ at 1; DMSJ at 10. Approximately 2,000 wild

horses were herded together and placed in a temporary holding facility in Fallon, Nevada, where

they will remain at least until May 26, 2010, after which they may be relocated to long-term

holding facilities in the Midwest. PMSJ at 1, 9 n.7.

II. DISCUSSION

The current iterations of the plaintiffs’ claims fall into two categories: those

claims that challenge the legality of the means by which the gather of horses from the Complex

was conducted, see 2d Am. Compl. ¶¶ 60-63, 70-73, and those asserting that the relocation of

excess horses to long-term holding facilities in Kansas, Oklahoma, and South Dakota violates

the Wild Horse Act and/or was insufficiently considered by the agency in violation of NEPA.

See

. Because the gather in question has already occurred, the first category

of claims is now moot and thus is not justiciable. Because the plaintiffs have failed to establish a

causal link between their asserted injury and BLM’s use of long-term holding facilities, they lack

standing to bring the second set of claims.

A. Claims Challenging the Gather

“It is a basic constitutional requirement that a dispute before a federal court be ‘an

actual controversy . . . extant at all stages of review, [and] not merely at the time the complaint is

filed.’” Newdow v. Roberts, No. 09-5126, slip. op. at 9 (D.C. Cir. May 7, 2010) (quoting Steffel

v. Thompson,

, 459 n.10 (1974)) (alterations in original). “‘[W]hen the issues

presented [in a case] are no longer ‘live’ or the parties lack a legally cognizable interest in the

5 outcome,’” the case is moot and hence nonjusticiable. Ramirez v. U.S Customs & Border

Protection, Civil Action. No. 07-65,

, at *8 (D.D.C. May 5, 2010) (quoting

U.S. Parole Comm’n v. Geraghty,

(1980)). In the same vein, “[i]f events

outrun the controversy such that the court can grant no meaningful relief, the case must be

dismissed as moot.” McBryde v. Comm. to Review Council Conduct,

(D.C. Cir.

2001).

In this case, the gather that the plaintiffs challenge as unlawful has already taken

place, and so it would seem that “[i]t is impossible for the court to grant any effectual relief

whatever” with regard to it. Fund for Animals, Inc. v. U.S. Bureau of Land Mgmt.,

(D.C. Cir. 2006) (ruling that challenges to already completed gathers were moot) (internal

quotation marks and citations omitted). The plaintiffs, however, argue that their claims fall

within the exception to the mootness doctrine for actions “capable of repetition, yet evading

review.” P. Opp. at 17-20.

That exception is not available to the plaintiffs here. Plaintiffs had the

opportunity to pursue further review of the legality of the proposed gather by appealing this

Court’s decision denying their motion for a preliminary injunction. “Had plaintiffs pursued an

appeal of that denial and had the preliminary injunction been granted, their case would not have

become moot.” Newdow v. Roberts, No. 09-5126, slip op. at 9. Having failed to take advantage

of the opportunity for appeal, however, the plaintiffs are now barred from claiming the “capable

of repetition, yet evading review” exception: “The capable-of-repetition doctrine is not meant to

save mooted cases that may have remained live but for the neglect of the plaintiff.” Id. at 10.

6 Consequently, those counts of plaintiffs’ complaint that challenge the manner of conducting the

Calico Mountains Complex gather must be dismissed.2

B. Claims Challenging Relocation and Long-Term Holding

The plaintiffs’ two remaining claims assert that (1) BLM’s plans to relocate

horses removed from the Calico Mountains Complex to long-term holding facilities in the

Midwest is not authorized by the Wild Horse Act, see 2d Am. Compl. ¶¶ 64-69, and (2) the

agency violated NEPA by failing to consider the effects of long-term holding on the horses

removed from the Complex. Id. ¶¶ 74-77. With respect to both claims, the plaintiffs seek a

declaratory judgment. They also seek an injunction that would bar BLM from transporting the

removed horses from their current location in short-term holding facilities in Nevada to long-

term holding facilities in the Midwest. See id. ¶ E.

In its Opinion denying the plaintiffs’ motion for a preliminary injunction, the

Court indicated that the plaintiffs had shown a likelihood of success on the merits as to their

claim that the relocation and long-term holding of excess horses was not permitted under the

Wild Horse Act. See In Defense of Animals v. Salazar,

. At that point

in the litigation, however, the parties had not discussed in any depth, and so the Court did not

analyze, the adequacy of the plaintiffs’ standing to bring those claims. See

at 103 n.9

(explaining why standing would not be addressed). Now that the issue has been briefed and

2 Furthermore, because decisions with respect to future removals and relocations of wild horses will be “highly fact-specific,” and the manner in which particular herds will be managed in the future “is anyone’s guess,” plaintiffs’ claims regarding the gather in this case do not raise issues that are capable of repetition, yet evading review. Fund for Animals, Inc. v. U.S. Bureau of Land Mgmt.,

.

7 considered more fully, the Court concludes that the plaintiffs lack standing to bring their claims

challenging long-term holding because the plaintiffs’ asserted injuries are not sufficiently

connected or “traceable” to the agency action in question.

Federal courts are courts of limited jurisdiction, with the ability to hear only cases

entrusted to them by a grant of power contained in either the Constitution or in an act of

Congress. See, e.g., Beethoven.com LLC v. Librarian of Congress,

(D.C. Cir.

2005); Hunter v. District of Columbia,

(D.D.C. 2005). A federal court

has no subject matter jurisdiction where the plaintiffs lack standing. See Worth v. Jackson,

(D.C. Cir. 2006). In order to establish standing under Article III of the United

States Constitution, a plaintiff must show, at an “irreducible constitutional minimum,” that (1) it

has suffered a concrete injury in fact — the invasion of a legally protected interest; (2) the injury

is fairly traceable to the challenged action of the defendants (a causal connection); and (3) a

favorable decision on the merits likely will redress the injury. Sprint Commc’ns Co., L.P. v.

APPC Servs., Inc.,

(2008) (citing Lujan v. Defenders of Wildlife,

(1992)); In re Navy Chaplaincy,

(D.C. Cir. 2008).

For claims alleging a “procedural injury” — such as NEPA claims — “the normal

standards for redressability and immediacy” are somewhat relaxed. See Lujan v. Defenders of

Wildlife,

n.7. Nevertheless, “the omission of a procedural requirement does not,

by itself, give a party standing to sue.” Center for Biological Diversity v. U.S. Dep’t of the

Interior,

(D.C. Cir. 2009) (internal quotation marks and citation omitted).

There still must be a causal connection between the injury alleged and the defendants’ conduct.

A would-be plaintiff must “show not only that the defendant’s acts omitted some procedural

8 requirement, but also that it is substantially probable that the procedural breach will cause the

essential injury to the plaintiff’s own interest.” Id.; see also Nuclear Info. & Res. Serv. v.

Nuclear Regulatory Comm’n,

(D.C. Cir. 2007); Fla. Audubon Soc’y v.

Bentsen,

(D.C. Cir. 1996) (“[t]o prove causation, a [NEPA] plaintiff . . . must

demonstrate that the particularized injury that the plaintiff is suffering or is likely to suffer is

fairly traceable to the agency action that implicated the need for” an environmental impact

statement).

Plaintiffs Terri Farley and Craig C. Downer claim that they have been injured by

the removal of a large number of horses from the Calico Mountains Complex. See, e.g., Farley

Affid. ¶¶ 7-8; Supp. Downer Affid. ¶¶ 2-3.3 They maintain that they intend to visit the Complex

in the future to view the wild horses in the animals’ natural habitat, both for personal enjoyment

and to further their professional interests in wild horses, and they contend that those interests

will be impaired by the greatly reduced size of the herds in the Complex resulting from the

gather of excess horses. See Farley Affid. ¶¶ 7-8; Farley Decl. ¶¶ 27, 32; Downer Decl. ¶¶ 53-

56.4 For present purposes, the Court assumes, without deciding, that plaintiffs’ rather conclusory

3 Regarding the standing of In Defense of Animals to bring this case, the plaintiffs have made only conclusory suggestions to the effect that In Defense of Animals’ “constituents . . . are interested in and affected by the BLM activities at the Calico Mountain Complex.” PMSJ at 4-5. Such vague and unsupported assertions cannot establish representational standing, see, e.g., Int’l Bhd. of Teamsters v. Transp. Security Admin.,

(D.C. Cir. 2005), and the plaintiffs have not argued that In Defense of Animals has organizational standing. Consequently, the Court has subject matter jurisdiction over this dispute only if one of the individual plaintiffs, Mr. Downer or Ms. Farley, has standing to raise the plaintiffs’ claims. 4 As in its prior Opinion in this case, the Court uses the terms “remove” and “removal” to refer to the permanent separation of horses from their native range. See In Defense of Animals v. Salazar,

& n.5. A horse is “removed” once BLM has gathered it (herded it from the range and into a temporary corral) and determined that it is an

9 allegations suffice to establish a concrete and particularized injury resulting from BLM’s

separation of so many horses from the Complex. Compare Center for Biological Diversity v.

U.S. Dep’t of the Interior,

(finding a cognizable interest based on affidavits

much more specific, detailed, and precise than those in this case). The plaintiffs nevertheless

have failed to satisfy standing’s causation requirement. Their asserted injury results from the

removal of wild horses from the Complex, not from the placement of removed horses in long-

term holding facilities.

“[S]tanding is assessed as of the time a suit commences,” Del Monte Fresh

Produce Co. v. United States,

(D.C. Cir. 2009), and “is determined on a

claim-by-claim basis.” North Carolina Fisheries Ass’n, Inc. v. Gutierrez,

(D.D.C. 2007) (citing DaimlerChrysler v. Cuno,

(2006)). At the

commencement of this litigation, the direct threat to the plaintiffs’ interest was BLM’s decision

that more than 2,000 horses in the Calico Mountains Complex were in excess of the appropriate

management level for that range and had to be removed from the area. See

(b)(2) (requiring BLM to “remove excess animals from the range” “immediately” once it

determines “that an overpopulation exists” there and “that action is necessary to remove excess

animals”); A.R. at 7009 (“BLM has determined that 2,468 excess wild horses are present within

the Complex and need to be removed.”). The plaintiffs, as explained above, brought two

categories of claims challenging BLM’s plan for removal and disposition of excess horses: one

set that contested the legality of the roundup process by which horses would be physically

transported from the Complex, and one set that denied BLM’s authority to place gathered excess

“excess” horse that cannot be returned to the range. See

10 horses in long-term holding facilities. The causal connection between the roundup and the

plaintiffs’ asserted injuries is clear: the roundup effected the separation of excess horses from the

range, thus reducing the size of the Complex’s herds in the manner complained of by the

plaintiffs. In contrast, the causal relationship between long-term holding and the removal of

many horses from the range has not been established; the plaintiffs have not shown that the

removal of excess horses from the Complex was or is “fairly traceable” to the agency’s plan to

place some horses in long-term holding facilities in the Midwest.

Although both the plaintiffs’ motion for summary judgment and their opposition

to the defendants’ cross-motion address the issue of standing at some length, see PMSJ at 4-7;

P. Opp. at 16-20, neither document elucidates the necessary causal nexus between long-term

holding and the plaintiffs’ asserted injury. The closest the plaintiffs come to such an explanation

is their assertion that “transfer to the long-term holding facilities in the Midwest would

permanently remove the gathered Calico wild horses from their home on the range.” P. Opp. at

16. This statement, however, ignores the undisputed fact that BLM’s determination that a

certain number of gathered horses are “excess” results in the permanent separation of those

horses from the range. As plaintiffs’ counsel conceded at oral argument, see Tr. at 14-15, horses

cannot be returned to the range once they have been gathered and deemed “excess.” See also In

Defense of Animals v. Salazar,

(suggesting that the Wild Horse Act does

not appear to give BLM authority to release excess horses back onto the range from which they

came). The subsequent placement of the removed horses in long-term holding facilities does not

affect that result.

11 Perhaps the plaintiffs mean to suggest that if BLM were not permitted to place the

horses in long-term holding facilities, the agency would not enact its gather plan and so would

not remove excess horses from the Complex at all. Even assuming such a theory could support a

finding of causation sufficient to confer standing, the plaintiffs have failed to point to any

evidence in the record that would lift that theory out of the realm of speculation. If BLM were

unable to place horses in long-term holding facilities, there is no reason to believe that it would

cease its efforts to remove excess horses from the public lands in general, as the Wild Horse Act

specifically instructs it to do, or from the Calico Mountains Complex in particular. If prevented

from resorting to long-term holding, the agency might simply redouble its efforts to effect the

adoption of excess horses. It might, as the plaintiffs suggested at oral argument, place excess

horses into areas of the public lands that are not currently overpopulated by wild horses. Tr. at

12-13.5 Or it might, as Congress has directed it to do, decide to euthanize healthy, unadoptable

horses, assuming that it could secure funding to do so. See In Defense of Animals v. Salazar,

. The plaintiffs can only speculate that the agency simply might

cease its efforts to remove excess horses — and such speculation unsupported by evidence does

not support a finding of standing. See, e.g., Center for Law & Educ. v. Dep’t of Educ.,

Indeed, at oral argument the plaintiffs actively encouraged the Court to order the agency to release excess Calico horses into areas of the public lands that have been inhabited by wild horses in the past but are not currently overpopulated by them. See Tr. at 14-15. But such a measure is unconnected to the plaintiffs’ asserted injuries, all of which relate to the removal of the horses from a specific place — the Calico Mountains Complex — and not to their removal from public lands in general. See, e.g., PMSJ at 6-7 (explaining the plaintiffs’ interest in and connections to the Calico Mountains Complex and the horses there). This mismatch between asserted injury and requested remedy is perhaps at least partially explained by the fact that the remedy was first requested at oral argument, not in the complaint or any of the plaintiffs’ motion papers. See, e.g., Tr. at 12-13, 30.

12 1152, 1159 (D.C. Cir. 2005) (“Unadorned speculation will not suffice to invoke the judicial

power.” (citation and internal quotation marks omitted)); Huddy v. FCC,

(D.C. Cir. 2001) (argument that challenged action “just might” lead to alleged injury insufficient

to establish standing).

The plaintiffs have thus failed to establish the existence of causation, a necessary

ingredient of constitutional standing, with regard to either of their claims challenging long-term

holding. As a substantive matter, the plaintiffs have not shown that there exists a causal link

between long-term holding, whether or not authorized by the Wild Horse Act, and their asserted

injury: the removal of excess horses from the Calico Mountains Complex. As for the claimed

procedural injury under NEPA, “[t]he chain of causation between the alleged procedural

violation and the concrete interest is speculative at best.” Center for Law & Educ. v. Dep’t of

Educ.,

. The plaintiffs have failed to demonstrate that it is “substantially

probable” that BLM’s allegedly unlawful failure to consider the effects of long-term holding on

horses has caused or “will cause the essential injury to the plaintiff’s own interest.” Center for

Biological Diversity v. U.S. Dep’t of the Interior,

(internal quotation marks and

citation omitted).

13 III. CONCLUSION

For the foregoing reasons, the Court lacks subject matter jurisdiction over the

plaintiffs’ claims, and this litigation cannot go forward. Because this Opinion disposes of the

plaintiffs’ claims but does not adjudicate them on their merits, the plaintiffs’ complaint must be

dismissed, and the pending cross-motions for summary judgment will be denied. An Order

consistent with this Opinion shall issue this same day.

SO ORDERED.

/s/____________________________ PAUL L. FRIEDMAN United States District Judge DATE: May 24, 2010

14