UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

FRIENDS OF ANIMALS , Plaintiff,

v. THE UNITED STATES BUREAU OF LAND MANAGEMENT , Defendant. Case No. 17-cv-00136 (CRC)

MEMORANDUM OPINION The Bureau of Land Management (“BLM”) is entrusted with managin g the population of wild horses that roam public ra ngeland in the western United St ates. To fulfill this statutory responsibility, BLM must periodi cally remove horses from the ra nge. One such removal operation—also known as a “gather” —is scheduled to begin tomorr ow, February 8, 2017, in Utah’s Cedar Mountains. The ope ration has been challenged, how ever, by the animal welfare organization, Friends of Anima ls. The organization seeks a pre liminary injunction halting the gather on the grounds that BLM ha s not adequatel y considered th e environmental consequences of the operation and has not properl y determined that an overpo pulation of horses exists. Having considered the parties’ ar guments and evidentiary submis sions on an expedited basis, the Court finds that Friends of Anim als has not demonstrated that i ts challenges are likely to succeed, that it would suffer irreparable harm as a result of the gather, or that the balance of the equities and the public interest weigh in its favor. The Court will, accordingly, deny Plaintiff’s preliminary injunction motion.2 I. Background A. Statutory Background The National Environmental Policy Act (“NEPA”), 42 U.S.C. § 432 1 (2012), et seq. , “requires federal agencies to c onsider the environmental impact of any major feder al action.” Baltimore Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 89 (1983). Generally, when such an action is contemplat ed, the agency must prepare an Environmental Assessment (“EA”) to determine if the acti on’s expected effects are “signi ficant.” See 40 C.F.R. § 1501.4. If they are, then the proposed acti on calls for a more thorough En vironmental Impact Statement (“EIS”). See 42 U.S.C. § 4332( C); 40 C.F.R. § 1508.11. If the likely effects are not considered significant, then the agency must make a Finding of No Signific ant Impact (“FONSI”) before carrying out the action. See 40 C.F.R. § 1508.13. BLM recognizes that proposed horse gathers are subject to NEPA. See BLM, Removal Manual, 4720.3 (2010). However, the Bureau has also determined that sometimes a proposed gather is so similar to a previous one that no new NEPA analysis is warranted. Accordingly, BLM has instructed its official s to “use existing environmental analyses to analyze effects associated with a propose d action . . . when doing so would bui ld on work that has already been done [and would] avoid redundancy[ .]” BLM, NEPA Handbook, H-17 90-1 at 21 (2008). In those circumstances, BLM official s are to prepare a Determinati on of NEPA Adequacy (“DNA”), confirming “that an action is adequately analyzed in e xisting NEPA document(s)[.]” Id. at 22. To issue a DNA, officials must complete an accompan ying “worksheet” by answering a list of questions, such as: whet her “the [relevant] geographi c and resource conditions are sufficiently similar to those a nalyzed in the existing NEPA doc uments,” and whether “the existing analysis [is] valid in light of any new information or circumstances[.]” Id. at 23. If the3 answer to even one of these questio ns is “no,” then “a new EA o r EIS must be prepared.” Id. Otherwise, no further NEPA anal ysis is necessary before carryin g out the proposed action. But because a DNA is “not [a] new NEPA analys[is],” the fate of any action justified by a DNA “must rise or fall on the conten ts of the previously issued NEP A documents.” S. Utah Wilderness All. v. Norton, 457 F. Supp. 2d 1253, 1264 (D. Utah 2006). Also governing the challenged rem oval decision is the Wild Free -Roaming Horses and Burros Act (“Wild Horses Act”), 16 U.S.C. §§ 1331–40, which was enacted in 1971 to protect wild horses on public lands “from capture, branding, harassment , or death.” Kleppe v. New Mexico, 426 U.S. 529, 531 (1976) (quoting 16 U.S.C. § 1331). B ut because wild horses are only one ingredient in the lands’ eco logical makeup, Congress amende d the Act in 1978 “to cut back on the protection the Act afford s wild horses, and to reemphasi ze other uses of the natural resources wild horses consume. ” Am. Horse Prot. Ass’n v. Watt, 694 F.2d 1310, 1316 (D.C. Cir. 1982). In keeping with these twin go als, the Act directs the S ecretary of the Interior to “maintain a current inventory of wild fr ee-roaming horses and burros” in designated herd management areas (“HMAs”), and to define “a ppropriate management [populati on] levels” (“AMLs”) for those areas based on site-specifi c environmental analysis. 16 U.S.C. § 1333(b)(1); see also BLM, Wild Horses and Burros Management Handbook, H-4700-1 at 17 –18 (2010) (explaining that the AML should be “expresse d as a population range,” and s hould be based on an “in-depth evaluation of intensive monitori ng data or land health assessme nt”). Furthermore, when the Secretary determines that a her d management area is overpopulat ed and that corrective action is necessary, the statute provides th at “he shall immediately remo ve excess animals from the range4 . . . so as to restore a thrivi ng natural ecologi cal balance to the range, and prot ect the range from the deterioration associated w ith overpopulation[.]” 16 U.S.C. § 1333(b)(2).
B. Factual Background The Cedar Mountains are nest led in Tooele County, Utah, approxi mately 45 miles west of Salt Lake City. Pl.’s Mot. P relim. Inj. (“MPI”), Ex. E (“20 03 Decision and EA”) at 5. 1 Early settlers and cavalry introduced w ild horses to the region as early as the late 1800s. Id. at 17. With few natural predators and a mple vegetation, the wild horse population has flourished since then. Unchecked, the population i s capable of doubling every t hree years. Id. at 5. Pursuant to the Wild Horses Act, the Cedar M ountain Herd Management Area wa s established in 1971 to protect the herd of wild horses th at roamed within it. Id. at 17. BLM’s Salt Lake Field Office assumed responsibility for the long-term management of the Cedar Mountain HMA, which included setting an AML range f or the herd and conducting perio dic censuses and removal operations to prevent overpopula tion. Id. The first such gath er and removal took place in 1975, and gathers have occurred at fairl y regular intervals since the n. Id. After taking an aerial census and conducting an EA in 2003, BLM expanded the HMA’s boundaries and adjusted the AML from 85 to 273, with the aim of maintaining the wild horse population between 190 and 390 depe nding on environmental condi tions. 2003 Decision and EA at 1–2, 5. The AML was increased s o that “[g]enetic defects, i f present, would be diluted by a reduction in inbreeding that ma y occur in smaller populations.” Id. at 25. The 2003 EA set the upper limit of the population ra nge based on the number of hors es “the area would support in a

1 Throughout the opinion, the Court will cite page numbers from Plaintiff’s exhibits by reference to the Bates stamp i n the upper left-hand corner of the relevant page, with the preceding zeros removed.5 thriving ecological balance.” Id. The lower limit, by contras t, was the number of horses “the area would support under drought conditions . . . .” Id. at 26

. 2 BLM has twice gathered and removed excess horses based on the A ML range established in 2003: In 2008, 573 wild horses we re to be gathered, 447 rem oved, and 126 released back into the HMA. Pl.’s MPI, Ex. D ( “2008 Decision and EA”) at 1. In 2 012, 326 wild horses were to be gathered, 65 removed, and 261 released. See Pl.’s MPI, Ex. C ( “2012 Decision and EA”) at 2. During the gathers, breeding age m ares were treated with the co ntraceptive porcine zona pellucidae (“PZP”)—which inhibits repr oduction for two t o three breeding seasons—prior to being released. Id. BLM conducted a supporting EA for both ga thers and ultimately concluded that neither would cause a signi ficant environmental impact. S ee 2008 Decision and EA; 2012 Decision and EA. In March 2016, BLM again surveye d the herd, estimating that it had grown to approximately 800 horses. Pl.’s MPI, Ex. F (“2016 Draft DNA”) at 5. The Bureau proposed an action to remove the ex cess population by rounding up 600 horse s from the HMA, removing 200, and releasing 400 after first t reating an estimated 200 ma res with PZP. Id. at 2. In a draft DNA, BLM found that the prior 2008 and 2012 EAs covered the pro posed gather because “[they] analyze[d] the same analysis area as the proposed actio n [and] [t]he re have been no changes to the HMA boundary, HMA A ML or use of [PZP] since the preparation of the previous EAs.” Id. at 4. BLM determined tha t the potentia l alternative s to the proposed action were the same as those presented and r ejected in previous EAs. Id. (“Th ere are no unique circumstances, concerns, interests or resource values that would suggest a nee d for other action alternatives.”).

2 “The overriding limiting factor f or the carrying capacity of t he horses in the Cedar Mountains is not the available forage, but the supply of reliab le water.” 2003 Decision and EA at 26.6 The draft DNA also specifically i ncorporated by r eference the e nvironmental effects identified and analyzed by the 2012 EA. Id. at 6. The Bureau presented the draf t DNA to the public for a 30-day c omment period, and received eight comments—widel y ranging in their degree of suppo rt—from state and local governments, individuals, and orga nizations, including Plaintif f. Pl.’s MPI, Ex. B (“2016 DNA”) at 10. Utah’s Public Lands Policy Coordinating Office, f or example, urged BLM to expand the removal of excess hor ses “to avoid degradation of pu blic rangelands” and questioned the effectiveness of PZP as a contraceptive. Id. at 51. Plain tiff voiced different concerns: It criticized BLM for failing to c onduct a new analysis of environ mental effects, review recent studies on PZP treatment, and consid er the potential impact of the gather on golden eagles nesting in the gather area . Id. at 58–65. BLM responded to th e comments, revising the DNA to address any potential impacts on golden eagle activity and prop osing a slightly larger gather and removal of horses, as far as the budget allowed. See id. at 51 –65 (BLM’s responses to the comments). In December 2016, BLM issued the final DNA, accompa nied by an appealable Decision Record, which author ized gathering 600–700 horses, rem oving 200–300 horses, and treating with PZP any mare above a year old in the group of 400 horses (i.e., roughly 200 horses) that would be returned to the HMA. Pl.’s MPI, Ex. A (“2016 Dec ision Record”) at 2. On January 20, 2017, six weeks afte r BLM issued its final deci sion authorizing the gather, Friends of Animals filed s uit against BLM. A week late r, it filed a Motion for a Preliminary Injunction to halt th e gather, which is scheduled t o begin on February 8, 2017. Alternatively, Plaintiff requests that the Court delay the gath er for 30 days while deciding the present motion. The practical effect of a 30-day delay, howeve r, would be to push back the gather by at least five months because BLM policy prohibits gathers during peak foaling season,7 which spans from March to July. T he Court held a telephonic co nference on January 30, 2017, in which it discussed with the parties the possibility of postp oning the gather to allow for more thorough briefing and consideration of the issues. Given the p roximity to foaling season, BLM declined to postpone the operati on, and the Court set an expedi ted briefing schedule. Neither party has requested a hearing.

II. Standard of Review A preliminary injunction is “an e xtraordinary remedy never awar ded as of right.” Winter v. Nat. Res. Def. Council, 555 U .S. 7, 24 (2008). In order to obtain a preliminary injunction to prevent BLM from conducting its p lanned gather, Plaintiff must establish that it is “likely to succeed on the merits, that [it is] likely to suffer irreparabl e harm in the absence of preliminary relief, that the balance of equities tips in [its] favor, and t hat an injunction i s in the public interest.” Id. at 20. The D.C. C ircuit has indicated that, ev en after the Supreme Court’s decision in Winter, “[a] district court must balance the strength of a p laintiff’s arguments in each of the four elements when deciding wheth er to grant a preliminary inju nction.” Mills v. District of Columbia, 571 F.3d 1304, 1308 (D.C. Cir. 2009). Nonetheless, “ it is especially i mportant for the movant to demonstrate a likelihood of success on the merits.” Nat’l Head Start Ass’n v. U.S. Dep’t of Health & Human Servs., 297 F. Supp. 2d 242, 246 (D.D.C . 2004) (citing Davenport v. Int’l Bhd. of Teamsters, 166 F.3d 356, 360, 366 (D.C. Cir. 1999 )).8 III. Analysis
A. Likelihood of Success on the Merits Friends of Animals challenge s the Bureau’s 2016 Decision on th ree main grounds. First, it argues that BLM’s action i s not grounded on a recognized NEP A document—such as an EA, FONSI, or EIS—and that it s hould be. See Pl.’s MPI 12–18. Rel atedly, Plaintiff contends that neither the DNA, nor any of the prior NEPA documents that it in corporates, adequately accounts for recent scientific literature on the effects of PZP treatmen t on mares—particularly the impact of consecutive PZP injections. Id. at 19–20. Second, pointing to language i n prior EAs indicating that future removal actions will be justified by “ap propriate” NEPA documentation, Plaintiff insists that BLM ha s failed “to honor [those] affirma tive commitments” by authorizing the impending gather without an additional EA. Id. at 20–21. Finally, in addition to the above purported NEPA violations, Plain tiff asserts a violation of the Wild Horses Act: It argues that BLM failed to make a proper “excess” population determination b efore authorizing the removal, as required by the Act. All of the above claims are gove rned by the Administrative Pro cedure Act (“APA”), under which a court may “hold unlawful and set aside agency act ion, findings, and conclusions” that are “arbitrary, caprici ous, an abuse of discretion, or oth erwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Under that de ferential standard, an agen cy’s decisions are reversible if the Court determines that the agen cy “has relied on factors which C ongress had not intended it to consider, entirely failed to c onsider an important aspect of th e problem, offered an explanation for its decision that runs counter to the evidence before the a gency, or is so implausible that it could not be ascribed to a diffe rence in view or the product of agency expertise.” Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 658 (2007) (q uoting Motor Vehicle Mfrs.9 Ass’n of United States, Inc. v. Sta te Farm Mut. Automobile Ins. Co., 463 U.S. 29, 43 (1983)). Under some circumstances, agenc y decisions are also reversible upon a finding of procedural error. See 5 U.S.C. § 706(2)(D) (permitting reversal where an agency action was taken “without observance of procedur e required by law”).
1. Whether Prior EAs Sufficiently Analyz ed the Effects of the Planned Gather NEPA’s implementing regulations allow agencies to support an ac tion with an existing environmental analysis as long as the agency (1) “prepared [the existing analysis] pursuant to NEPA and the Council on Environmen tal Quality regulations” and (2) “determines, with appropriate supporting documentati on, that [the analysis] adequ ately assesses the environmental effects of the proposed action and reasonable alternatives.” 4 3 C.F.R. § 46.120(c). In determining whether an existi ng analysis covers a proposed acti on, the agency must ensure that “new circumstances, new information or changes in the action or its impacts not previously analyzed [do not] result in significantly different environmental eff ects.” Id. (emphasis added). The governing statute and accompanying regulations, however, do not require such a determination to carry a NEPA-a pproved label. Rather, courts h ave generally upheld an agency’s reliance on prior EAs when “no new information or circ umstances . . . convey[] a different picture of the affecte d environment.” Colorado Wild Horse v. Jewell, 130 F. Supp. 3d 205, 218 (D.D.C. 2015) (quoting S. Utah Wilderness All., 457 F. Supp. 2d at 1261–62) (internal quotation marks omitted); see also Friends of Animals v. BLM, 2 015 WL 803169, at *4 (D. Utah Feb. 26, 2015). The gather proposed here, along w ith its supporting “Determinat ion of NEPA Adequacy,” likely checks these boxes. BLM’s DNA concluded that the proposed gather was “essentially similar to” previous ones because the capture meth od is the same and “there have10 been no changes to the HMA boundary, HMA AML or use of PZP-22 s ince the preparation of the previous EAs.” 2016 DNA at 3–4. It further confirmed that the range of alternatives analyzed in the previous EAs remained appropriate because “no unique circumstances, concerns, interests, or resource values . . . suggest a need for other ac tion alternatives.” Id. at 4. And finally, the Bureau considered n ew information related to healt h standards, endangered species, and other potentially affect ed animals, and found nothing subst antially changed the analysis of the proposed action. Id. In fact , “the changes that have occu rred since [the 2008 and 2012 gathers]—including the continue d increase in t he wild horse pop ulation, the accompanying increases in demand on rangeland resources, etc.—were both anti cipated and discussed in the [previous] EAs.” Friends of Animals, 2015 WL 803169, at *4. Plaintiff argues that BLM’s re liance on the prior EAs was arbi trary and capricious because the proposed gather is larger than the past ones. This argument falters for two reasons. First, BLM currently recom mends gathering between 600 and 700 h orses, removing 200 to 300, and releasing 400 back into the HMA. In 2008, by comparison, B LM planned to capture 573 horses, remove 447, and release 126. While the action proposed here would gather 25 to 125 more horses than in 2008, the numbe r of horses that would be pe rmanently removed is at least
150 less than in 2008. The overall number of horses involved in the pr oposed action is therefore generally consistent with the 2008 gather. Cf. Friends of Anim als v. BLM, 2015 WL 555980, at *3 (D. Nev. Feb. 11, 2015) (finding BL M inappropriately relied on a past EA when the proposed gather would both capture 130 more horses and remove 150 more h orses than the previous one). Second, while the Court agrees wit h Plaintiff that widely expan sive agency actions should not be supported by narrow EAs, it hesita tes to second-guess BLM’s rea soned judgment that gathering 25 or 125 more horses—using the sam e capture and PZP treatment methods, from the same area,11 and with the same AML target ran ge as in previous gathers—would not result in “significantly different environmental e ffects.” 43 C.F.R. § 46.120. “The N EPA process involves an almost endless series of judgment calls [and] [t]he line-drawing decis ions necessitated by this fact of life are vested in the agencies, not t he courts.” Coal. On Sensible Transp. v. Dole, 826 F.2d 60, 66 (D.C. Cir. 1987). Plaintiff also argues that BLM was arbitrary and capricious in failing to adequately address new information, in the form of several recent studies on the effects of PZP treatment on horses. Agencies, however, are notrequired to supplement thei r analysis by addressing every study brought to their attention, onl y those that show the prop osed action would “affec[t] the quality of the human environment i n a significant manner or to a significant extent not already considered . . . .” Marsh v. Oregon Nat. Res. Council, 490 U.S . 360, 374 (1989) (citing 42 U.S.C. § 4332(2)(C)) (internal quotation marks omitted). And w here “analysis of the relevant documents requires a high level of technical expertise, [courts ] must defer to the informed discretion of the responsible fe deral agencies.” Id. at 377 (i nternal quotations marks and citation omitted). BLM considered the studies offe red by Plaintiff in its comments and determined that they did not significantly change BLM’s prior analysis. The Bureau found studies on consecutive years of PZP treatment, for exa mple, irrelevant to the proposed action because Cedar Mountain mares are treated in four- to fiv e-year intervals, not in conse cutive years or breeding cycles. 3 See Def.’s Opp’n Pl.’s MPI (“Opp’ n”) 18. In addition, Plaintiff pr esented a 2014 study which concluded that PZP-treated mar es are more likely to change band s. BLM considered similar

3 At a maximum, 59 mares could be t reated with PZP three times o ver a nine-year period. No mare has ever been treated in consecutive years. See 2016 D NA at 5.12 findings—from an older study by the same author—in its 2012 EA. 2012 Decision and EA at 39. Citing that study, BLM acknowledged that the long-term eff ects of PZP treatment were unknown, but concluded that PZP treat ment was still the best al ternative. Id. And in its 2016 DNA, BLM drew on a 2013 National Re search Council report that f ound that “harem changing was not likely to resu lt in serious adverse effects for treated mares[.]” 2016 DNA at 6. The information within the 2014 st udy offered by Plaintiff, therefo re, was neither new nor contrary to BLM’s analysis. The 2013 Nationa l Research Co uncil report, cit ed by BLM in its DNA, also evaluated studies on how PZP treatment affected mares’ birthing cycles and out-of-season births, but indicated that the impact mi ght not be statistically signif icant. Given these reasoned determinations, the Court conclu des that BLM most likely acted within its informed discretion in refusing to find that the “new i nformation” offered by Plaintif f warranted additional environmental analysis.
2. Whether BLM Violated “Affirmative Commitments” Stated in Prior EAs As a final alleged instance of NEPA noncompliance, Plaintiff argues that BLM violated certain “binding commitments [the Bureau] made to the public in its [previous] decision records” by failing to conduct an EA for the impending gather. Pl.’s MP I 21. Plaintiff identifies two examples of these supposedly unkept promises. First, in a para graph of its 2003 EA discussing the potential long-term impact of gathers on “[n]eotropical bir ds and other wildlife species,” BLM noted that “[s]ite-specific analysis for future actions wou ld be addressed in NEPA documents specific to the acti ons to be taken.” 2003 Decision and EA at 31. Second, in its 2012 FONSI, the Bureau stated: The action is compatible with fut ure consideration of actions r equired to improve wild horse management in conjunction with meeting objectives fo r wildlife habitat within the herd management areas . The selected alternative doe s not set a precedent13 for future actions. Future actions would be subject to evaluat ion through the appropriate level of NEPA documentation. 2012 Decision and EA at 10. Plaintiff argues that these “commi tments” were issued “in accordance with the agency’s own directives to prepare site-spe cific NEPA analysis for each roundup.” Pl.’s MPI 21 (citi ng BLM Manual 4720.2.21). In shor t, Plaintiff’s argument rests on the premise that BLM has committed itself—either in past decisi ons or in Bureau guidance—to issuing an EA, or some other docum ent formally identified in NE PA regulations, for every individual gather. Plaintiff reads too much into BLM’s guidance and prior stateme nts. The Bureau’s guidance—far from indicating that an EA or other formally recog nized NEPA document should be created for every gather—actu ally encourages its officials t o “use existing environmental analyses to analyze effects asso ciated with a proposed action” in order to “avoid redundancy.” BLM, NEPA Handbook, H-1790-1 at 21. That is why BLM has given its officials the option of completing a DNA when “an action is adequately analyzed in exis ting NEPA document(s)[.]” Id. at 22. And there is no speci al exception for wild horse re movals: The Bureau’s manual on removals cited by Plaintiff cross -references the BLM NEPA Handb ook, which among other things, details the Bureau’s DNA protocol. See BLM Manual 4720 .3 (citing BLM Handbook H1790-1). In that context, it is cle ar that BLM’s past statemen ts—that some “appropriate level” of NEPA analysis would be conducted f or future actions—refer not o nly to formal NEPA documentation, but also to DNAs (“determinations of NEPA adequacy”). By completing a DNA for the proposed gather, then, i t appears that BLM has acted co nsistently with its past pronouncements and with its own po licy. It appears not to have “violated” any affirmative commitments.14 3. Whether BLM Failed to Make a Proper “Excess” Population Determination In addition to alleging that BLM vi olated NEPA, Plaintiff conte nds that the Bureau violated the Wild Horses Act by failing to make an “excess” pop ulation determination, as required by the statute. See Pl.’s MPI 22–23; 16 U.S.C. § 1333 (b)(2) (directing the Secretary of the Interior to “immediately remove excess animals from the range . . . so as to restore a thriving natural ecological bal ance to the range, a nd protect the range from the deterioration associated with overpopulation[.]” (emphasi s added)). Plaintiff also asse rts that, even if there was an excess determination, BLM did not “prope rly account[] for current rang e conditions,” “current herd size,” and “the wild horse populat ion’s role in maintaining a t hriving ecological balance therein.” Pl.’s MPI 23. But these assertions cannot be squared with the record. In ren dering its final decision, BLM clearly explained that the planned “gather is necessary to remove excess wild horses and to reduce the population i n order to achieve and maintain a thrivi ng natural ecological balance between wild horses and other mu ltiple uses as required under [ the Wild Horses Act.]” 2016 Decision Record at 4 (emphasis added). Furthermore, the decisi on’s accompanying DNA makes plain that the excess populat ion determination was based on an assessment of current herd size and relevant ecological conditions. BLM’s excess determinationwas made by reference to the AML for the Cedar Mountain herd management area. See 2016 DNA at 4–5. That AML was established in 2003 at betw een 190 and 390 horses, see 2003 Dec ision and EA, after a thorough EA that assessed the impact of the herd size on the area’s soil s, vegetation, wildlif e, and cultural and historical resources, among ot her topics. See generally 20 03 Decision and EA. 4 BLM

4 In its Reply, Plaintiff faults B LM for failing to comply with certain language in the Wild Horses Act, see 16 U.S.C . § 1333(a) (requiring consultatio ns with independent scientific professionals), and in a Burea u handbook, see Wild Horses and B urros Management Handbook,15 compared the AML to the herd’s actual population, which was cal culated to be 800 horses strong in March 2016 based on an aerial survey, and was estimated to h ave risen (based on a predicted 20% increase due to 2016 foal bi rths) to approximately 960 hors es by the time of the final decision in December 2016. See 2016 DNA at 5–6. Clearly, if t he high end of a population’s sustainable range is 390, and the re are over 900 horses in the current population, then there is an “excess” population, which the Sec retary must correct. In othe r words, contrary to Plaintiff’s assertions, not only did BLM ma ke an “excess” determination, bu t the logic unde rpinning that determination appears simple and sound. Separately, Plaintiff argues th at “BLM intends to apply PZP to wild horses that are not considered ‘excess,’” and that “a bsent an ‘excess determination ’ BLM does not have authority to target these wild horses.” Pl.’s MPI 23. This argument is a n onstarter, for at least two reasons. First, the roughly 200 mares who w ill be subject to PZP treatme nt are indeed “excess” according to the above math (even after 200–300 horses are permanently re moved). Second, Plaintiff has not established that BLM must mak e an excess determination befo re treating horses with PZP. The one case it cites on the matte r, Colorado Wild Horse & Burr o Coal., Inc. v. Salazar, 639 F. Supp. 2d 87 (D.D.C. 2009), addresses ex cess determinations only in the context of removal , not other forms of population ma nagement. See id. at 95–96. For t hese reasons, BLM’s decision to

H-4700-1 at 19 (2010) (requiring an analysis of various ecologi cal information such as climate data and “range conditions” in m aking an excess population dete rmination). See Pl.’s Reply Supp. MPI (“Reply”) 8–9. But Pla intiff does not contest that B LM engaged in this analysis in its prior EAs. Accordingly, to the e xtent these arguments are not waived as a result of being raised initially in Plaintiff’s Reply, t hey dovetail with Plaintiff’s challenges to the adequacy of BLM’s prior NEPA analysis, which are addressed above.16 administer PZP to roughly 200 horse s does not appear to be out of step with any statutory or regulatory requirements. To summarize, it is likely that BLM properly determined that th ere were excess horses in the Cedar Mountain HMA, and its de cision to remove or otherwise manage that excess population does not appear to be i n violation of the Wild Horse s Act. * * * For the foregoing reasons, it is unlikely that Plaintiff will succeed on the merits of its claim. The Court will now turn to the remaining preliminary in junction requirements.
B. Irreparable Harm An injunction is appropriate onl y if the applicant has demonstr ated irreparable harm— that is, the inadequacy of le gal remedies. Sierra Club v. U.S. Army Corps of Eng’rs, 990 F. Supp. 2d 9, 38 (D.D.C. 2013). “The pa rty seeking injunctive re lief must demonstrate that the claimed injury is ‘both cer tain and great.’” Id. at 38–39 (quo ting Wis. Gas Co. v. Fed. Energy Reg. Comm’n, 758 F.2d 669, 674 (D.C. Cir. 1985)). The moving p arty must also “show that ‘[t]he injury complained of [is] of such imminence that there i s a ‘clear and present’ need for equitable relief to prevent irre parable harm.’” Wis. Gas Co., 758 F.2d at 674 (quoting Ashland Oil, Inc. v. FTC, 409 F. Supp. 297, 307 (D.D.C. 1976)). And a plaintiff must present the Court with enough evidence to “substan tiat[e]” their cl aim of irrepar able injury. Wis. Gas Co., 758 F.2d at 674. Plaintiff identifies four ways in which it might suffer irreparable harm in the absence of a preliminary injunction. First, Pla intiff maintains that “the p ermanent loss of 200–300 herd members from the HMA will cause [it] irreparable aesthetic inju ry due to its members’ personal and professional interests i n observing, studying, and photographing the horses of the Cedar17 Mountain herd.” Pl.’s MPI 28. In s upport, Plaintiff attaches a declaration from one of its members, who has “photograph[ed] the Cedar Mountain horses exte nsively over the past years[,] . . . prid[ing] himself on his abil ity to observe wild horses a t close range.” Id. at 29; see generally Pl.’s MPI, Steele Decl. As discussed above, however, BLM pr oposes to remove no more tha n 300 horses from an estimated herd population of over 900 . See Def.’s Opp’n, Ex. 3 (“Warr Decl.”) ¶ 19 (“It is estimated that several hundred horses will remain on the HMA at the completion of the gather [plus those that are to be returned.]”). Even after a removal of that size, the remaining population would be larger than that existing prior to the 2012 removal. See 2016 DNA at 6. Accordingly, as this Court ha s previously found under similar c ircumstances, “a sufficient number of horses would likel y remain in [the] area . . . to sat isfy Plaintiff[’s] interest in observing and enjoying the wild- horse population[.]” Colorado Wild Horse, 130 F. Supp. 3d at 219; see also Am. Horse Pro t. Ass’n, Inc. v. Frizzell, 403 F. S upp. 1206, 1219 (D. Nev. 1975) (noting that plaintiffs’ intere st in having wild horses availab le for observation would “not be affected adversely in any signi ficant way” if BLM removed 400 o f between 1,000 and 1,200 wild horses). Furthermore, given anestimated annual growth ra te of 20%, the population will have returned to its current, pre- removal level within a few ye ars. See 2016 DNA at 6. Finally, as BLM stresses, the whole “r eason for the gather is to ensure the long[-]term s ustainability of the horses, thereby ensuring [th e] ability to pho tograph [and v iew] them for years to come.” Def.’s Opp’n 22. Plaintiff cites a number of cas es for the proposition that a m ere decrease in an animal population is sufficient to constitute irreparable harm under the preliminary injunction analysis. See Pl.’s MPI 24–25. As BLM notes, however, those cases mostly address Article III standing ,18 not the irreparable harm re quirement. See Def.’s Opp’n 22. Pl aintiff characterizes this distinction as a “red herring,” seeing no reason “why an injury that is sufficient to confer standing should be treated as in sufficient to carry a burden of irreparable harm.” Pl.’s Reply Supp. MPI (“Reply”) 11. But there is a wide and apparent gap b etween the two standards. Article III standing may be presen t for even slight (and reparable) injuries. See, e.g., Whitmore v. Arkansas, 495 U.S. 149, 155 (1990) (de scribing Article III’s “injury in fact” component as requiring only “concrete,” “distinct,” and “actual” harm). Irr eparable harm, by contrast, must be both “certain and great.” Wis. Gas Co., 758 F.2d at 674. 5 As a second source of irreparable harm, Plaintiff claims that, because its members have “intimate connection[s]” with the horses, “[t]he witnessing, or even the contemplation, of this inhumane treatment of the wild hor ses will inflic t aesthetic an d emotional injury upon Plaintiff and its members[.]” Pl.’s MPI 28. Although the Court does not question the sincerity or depth of the emotional connection that Plaintiff’s members feel with the Cedar Mountain horses, Plaintiff’s “reliance on emotiona l distress as a form of irrepa rable injury is misplaced” under these circumstances. Colorado Wild Horse, 130 F. Supp. 3d at 2 20. Such vicarious emotional

5 Plaintiff does cite a few cases finding irreparable harm from a diminished—but not eradicated—protected animal population. See Pl.’s MPI 24–25; P l.’s Reply 12–13 (citing Funds for Animals v. Norton, 281 F. Supp. 2d 209 (D.D.C. 2003); Fund for Animals v. Clark, 27 F. Supp. 2d 8 (D.D.C. 1998); and Sierra Club v. Martin, 933 F. Sup p. 1559 (N.D. Ga. 1996), rev’d on other grounds 110 F.3d 1551 (11th C ir. 1997)). But two of t hose cases primarily grounded their finding of irreparable ha rm on the emotional distress tha t the plaintiffs would experience in witnessing or contemplating the killing or severe injuring of t he affected animals—not on the mere disruption of their viewi ng and observation opportunities. See Norton, 281 F. Supp. 2d at 219–22; Clark, 27 F. Supp. 2d at 14. As discussed further belo w, there is no similar intent to eradicate or seriously harm ani mals here. The third cited case is also distinguishable, because it also involved the killing of a nimals in large numbers, and because its decision was grounded in the text of the Migratory Bird Tre aty Act, which “proscribes an y killing of any migratory bird.” Martin, 933 F. Supp. at 1571.19 distress might qualify as irrepara ble harm where the challenged defendant is taking action that could kill (or seriously injure) significant numbers of animals . See Fund for Animals v. Norton, 281 F. Supp. 2d 209, 222 (D.D.C. 2003) (de scribing the harm tha t plaintiffs would experience from contemplating the killi ng of 525 mute swans); Fund for Ani mals v. Clark, 27 F. Supp. 2d 8, 14 (D.D.C. 1998) (describing the ha rm that plaintiffs would exp erience from “seeing or contemplating . .

. bison being killed in an orga nized hunt”). Here, though, BLM d oes not intend to eradicate any healthy animals . Moreover, the history of pas t gathers suggests that the risk of serious physical harm to the wild horses is quite low. 6 Therefore, Plaintiff’s observation or contemplation of the possible—t hough unlikely—physical harm tha t the horses may suffer does not rise to the level of a “certain and great” irreparable inju ry. Wis. Gas Co., 758 F.2d at 674 Plaintiff offers two other poten tially irreparable harms that m ay be addressed briefly. It suggests that the PZP treatments “may injure the health of the horses or alter t heir behavior, [thus] impairing [P]laintiff’s ability to study and observe the wild horses.” Pl.’s MPI 29–30. But as discussed above, the claim tha t PZP as used here has long-te rm, adverse effects on the health of horses is unsubstantiated by sci entific literature, and Plai ntiff points only to t he declaration of its photographer-member to support it. Finally, Plaintiff sugg ests that BLM’s alleged procedural violation of NEPA is an irrepa rable harm, id. at 30–32, or at l east “bolster[s]” its claims of aesthetic and emotional harm, P l.’s Reply 15. But a “procedura l harm arising from a NEPA violation is insufficient, standi ng alone, to constitute irrepa rable harm justifying issuance of a

6 See Colorado Wild Horse , 130 F. Supp. 3d at 220 (citing hearin g testimony from BLM to the effect that horse gather mortality rates are typically “ about 1 percent and less”); Final Status Report, Colorado Wil d Horse v. Jewell, No. 15-cv-1454, S ept. 25, 2015, ECF No. 34 (reporting two deaths resulting f rom a 167-horse gather). Notw ithstanding this pr ior history, the Court will, consistent with past practice, order BLM to file da ily status reports summarizing the results of the gather, includi ng any deaths or serious injuries to the horses.20 preliminary injunction.” Norton, 281 F. Supp. 2d at 222. And as discussed in the above merits analysis, the Court finds it unlik ely that Plaintiff has indeed identified any actual NEPA violations. For that reason al one, the procedural harm Plainti ff alleges does not make irreparable injury any more likely. No matter the ultimate result of this proceeding, Plaintiff a nd its members will likely continue to enjoy ample abil ity to view and photograph wild hor ses in the Cedar Mountain HMA. For that reason and the othe rs described above, the Court concludes that Plaintiff has not met its burden to demonstrate a likelihood of irreparable injur y. 7
C. Balance of Equities and the Public Interest A party seeking a preliminary inj unction must demonstrate both “that the balance of equities tips in [its] favor, a nd that an injunction is in the public interest.” Winter, 555 U.S. at 20. “These factors merge when the Government is the opposing p arty.” Nken v. Holder, 556 U.S. 418, 435 (2009). Plaintiff contends that it will suffer irreparable injury as de scribed above, that the public has a general interest in co mpliance with the law by public off icials, and that any harm to BLM

7 Defendants also argue that Pl aintiff’s delay in bringing their motion undermines its claim that emergency relief is necessary. Def.’s Opp’n 10–12. The Court is indeed troubled by the delay, which appears to follo w a pattern of e leventh-hour i njunction requests in connection with long-planned wild-horse ga thers, see, e.g., Colorado Wild Horse, 130 F. Supp. 3d at 218 n.8 (42-day delay in moving for emergency relief); Habitat for Hors es v. Salazar, 745 F. Supp. 2d 438, 449 (S.D.N.Y. 2010) (30-day del ay in bringing suit). As d iscussed above, the proposed gather was published on BLM’s we bsite in June 2016; was followe d by a public comment period (in which Plaintiff participated ) in September and October; andwas finalized as a decision on December 9, 2016. Plaintiff brought this action on January 20, 2017, and moved for an injunction on January 27, a full seven weeks after the final gather deci sion was issued (and less than two weeks before the gathe r’s scheduled commencement). Ne vertheless, because the Court concludes that Plaintiff has not otherwise established irrepara ble harm, it need not decide the extent to which Plaintiff’s dela y in moving for an injunction w eakens their claimed necessity for emergency relief.21 from a delay will be minimal t o nonexistent. See Pl’s. MPI 32– 34. In Plaintiff’s view, delaying the gather would be a mere “minor annoyance” to the Bureau. Id . at 33. Plaintiff also suggests that it would be of no consequen ce to the horses or the range e cosystem to postpone the gather, seeing as there has not been a r emoval in the Cedar Mountain HM A for five years. Id. These arguments significantly unde rstate the harms that BLM has identified, both to the public and the Bureau itself, s hould the Court postpone the gat her. BLM has offered evidence that if the Cedar Mountain horse population is not soon checked , “[it] will grow and consume natural resources, lead ing to further deterio ration of the rang e.” Defs.’ Opp’n 25 (citing Warr Decl. ¶ 24). The Bureau has apolicy of prohibi ting helicopter gathers during the horse “foaling period,” which runs from Marc h 1 to June 30, meaning that if th e February gather is even minimally delayed, the soonest it can occur is in July of t his year. Warr Decl. ¶ 17. 8 By then “an additional 150–200 horses would be on the range,” nearly the sa me number of horses that BLM intends to permanently remove durin g the planned gather. Id. According to an expert declaration submitted by BLM, t hat increased population would p lace ecological stress on the range. Id. ¶¶ 8–9, 17; see also Blake v. Babbitt, 837 F. Supp. 458, 459 (D.D.C. 1993) (“[T]he endangered and rapidly deterio rating range cannot wait.”). Per haps even more to the point, it would negatively impact the health of the horses themselves , particularly due to the scarcity of water resources during the summ er months. Warr Decl. ¶ 9 (desc ribing the negative effects of water shortages on the b ody condition of wild horses). Harm to the horses would, in tur n, likely mean harm to BLM. Ev ery summer since 2000, the Bureau has devoted considerab le resources to “water hauling ” in the Cedar Mountain range.

8 In the event of a postponement, B LM indicates that the resched uled date for the gather would likely be even later tha n July 2017, since “BLM has other gathers planned for summer and fall of 2017, [such that] its res ources are already committed.” Warr Decl. ¶ 22.22 Id. For instance, last summe r, the Bureau lugged 81,000 gallon s of water into the area. Id. With a swelling horse population—hundreds larger than last year’s—BL M’s water hauling expenditures this summer would a lso increase without the benefi t of a gather. And that would not be the only source of financial harm to BLM if the gather w ere blocked. The Bureau explains that a “significant a mount of time has already been ex pended with BLM contracting staff to solicit [bids from hor se gather contractors], defin[e] gather parameters . . . and [award contracts]” for the gather. I d. ¶ 21. All told, gather prepar ation entails “months of planning and coordination involving dozens of personnel inside and outside o f BLM.” Id. To the extent such time and funds could not be applie d to a subsequent gather, tho se resources would be lost. Plaintiff does not usher any evi dence undermining the factual v alidity of these claims. Rather, it opines that the co st of water hauling may not “outwe igh the costs associated with feeding and caring for [the rem oved] horses when they are held in captivity,” and that “the reduced [horse] population [may not] appreciably reduce the cos t of this [water] haul at all.” Pl.’s Reply 18. Again without citing evidence, Plaintiff also asserts that, because “[u]nweaned foals depend on their mothers f or nutrition,” the added foal po pulation “will not increase the herd’s burden on the range’s res ources.” Id. at 19. While the se assertions could prove to be accurate, such “unsubstantiated and speculative allegations” ca nnot satisfy Plaintiff’s evidentiary burden in moving for an injunc tion. Wis. Gas Co., 758 F.2d at 674. Finally, Plaintiff contends tha t its irreparable injury and the public’s interest in having public officials comply with the l aw tip the scales in its favo r. See Pl.’s MPI 32. As the Court has already observed, however, a ny legally cognizable injury th at Plaintiff would suffer as a result of the planned gather woul d be minimal. And the Court h as also found that Plaintiff is unlikely to demonstrate that BLM ha s violated either the Wild H orses Act or NEPA, meaning23 that a preliminary injuncti on would likely have no effect on pu blic officials’ compliance with the law. As a result, the equities on Plaintiff’s side appear slig ht, especially when compared with the public’s interest in allowing B LM to carry out its mandate of “ manag[ing] wild free-roaming horses” so as to “achieve and maintain a thriving natural ecolo gical balance on the public lands.” 16 U.S.C. § 1333. In short, because BLM has establ ished that delaying the gather would have considerable financial and logistical reper cussions, and would risk damaging not only the range ecosystem but the very horse population that Plai ntiff seeks to protect, the Court finds that the balance of equities and the public interest favor BLM.

IV. Conclusion For the foregoing reasons, the Court concludes that Plaintiff h as not met its burden to establish each of the f actors required to obtain a preliminary injunction of BLM’s planned gather. The Court will therefore deny Plaintiff’s Motion for a Preliminary Injunction. An appropriate Order accompanies this Memorandum Opinion.

CHRISTOPHER R. COOPER United States District Judge
Date: February 7, 2017