Opinion
2:23-cv-01154-HL
04-12-2024
THE CLOUD FOUNDATION, a non-profit Colorado Corporation, GINGER KATHRENS, and DENIZ BOLBOL, Plaintiffs, v. DEB HAALAND, Secretary of the Department of the Interior, in her official capacity, TRACY STONEMANNING, Director of the Bureau of Land Management, in her official capacity, BARRY BUSHUE, State Director of the Oregon-Washington Bureau of Land Management, in his official capacity, and WAYNE MONGER, District Manager of BLM Vale District Office, in his official capacity, Defendants.
FINDINGS AND RECOMMENDATION
ANDREW HALLMAN UNITED STATES MAGISTRATE JUDGE
In this action, Plaintiffs challenge the Bureau of Land Management's (“BLM's”) proposed 10-year management plan to conduct wild horse gathers in the Three Fingers and Jackies Butte Herd Management Areas. Plaintiffs bring claims for relief under 42 U.S.C. § 1983, the National Environmental Policy Act (“NEPA”), and the Administrative Procedural Act (“APA”). Before this Court is Defendants' partial motion to dismiss Plaintiffs' NEPA claim under Federal Rule of Civil Procedure 12(b)(1) for lack of jurisdiction and under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. For the reasons discussed below, Defendants' motion should be DENIED.
BACKGROUND
Plaintiffs are The Cloud Foundation (“TCF”), a nonprofit organization dedicated to the preservation of wild horses and burros on public land; Ginger Kathrens, the founder and board president of TCF and an Emmy-award-winning director of documentaries on wild horses; and Deniz Bolbol, the director of advocacy for TCF. Compl. ¶¶7-29.
Plaintiffs challenge BLM's updated wild horse management plan for the Three Fingers Herd Management Area (“HMA”) and the Jackies Butte HMA. Compl. ¶1. The plan approves the removal of wild horses from the Three Fingers HMA and the Jackies Butte HMA over a ten-year period. Id. The Wild Free-Roaming Horses and Burros Act (“WHA”) requires BLM to manage wild horses on federal land by setting a herd's appropriate management level (“AML”) and removing horses when a herd exceeds the AML. See 16 U.S.C. § 1331. The Three Fingers HMA consists of 62,508 acres of public land with an AML of 75-150 wild horses, and the Jackies Butte HMA consists of 65,211 acres of public land with an AML of 75-100 wild horses. See https://eplanmng.blm.gov/publicprojects/2012644/200516248/20059220/250065402/DOI-BLM-QRWA-V000-2021-0023EAPublicCommentRevised20220502.pdf 1 (Draft Environmental Assessment) (last visited April 8, 2024). BLM estimated that as of summer 2022, the Three Fingers HMA would have over 280 adult wild horses, and the Jackies Butte HMA would have over 200 adult wild horses. Id. at 1-2.
In May 2022, BLM released a Draft Environmental Assessment (“Draft EA”) of the proposed management plan for public review. See id. Under the proposed management plan, BLM would manage the wild horse populations in the HMAs through removals and intensive fertility control treatments that would likely include one to three gather operations in each of the HMAs over a ten-year time frame. Draft EA 6. The Draft EA stated the “Purpose” of the project as follows:
The purpose of the action is to return the wild horse herds to levels that are within the established AML in both the Three Fingers and Jackies Butte HMAs . . . and to restore a natural ecological balance and multiple use relationship on public lands in the area consistent with the provisions of Section 1333(b) of the Wild Free-Roaming Horse and Burro Act[.]Id. at 2 (Section 1.3 “Purpose and Need for Action”). The Draft EA stated the “Need” for the action as follows:
The need for the action is to achieve a thriving natural ecological balance on public lands; manage wild horses in a manner that assures significant progress is made toward achieving Rangeland Health Standards for upland vegetation and riparian plant communities, watershed function, and habitat quality for animal populations[.]Id. BLM analyzed five alternatives in the Draft EA. Id. at 4. Alternative 1, which was the proposed action, involved removing excess wild horses one to three times in the ten-year period and implementing intensive fertility control management which would “most likely include one to three gather operations in each of the HMAs.” Id. at 6. “[R]oughly 90 percent of the estimated herd sizes . . . would be gathered using the helicopter-drive method.” Id. at 8. Each helicopter roundup “would take approximately one week or less” with the goal of leaving 75 wild horses in the Jackies Butte and Three Fingers HMAs, respectively. Id. at 7-8. Alternative 2 included the same gather and removal as Alternative 1 with the addition of managing a component of the wild horse population as non-reproducing horses. Id. at 10. Alternative 3 involved fertility control vaccines included in Alternative 1, but not removal of any wild horses. Id. Alternative 4 included the same gather and removal actions proposed in Alternative 1, but not the fertility control treatments. Id. Alternative 5 was the no-action alternative of having no gathers occur and no additional management actions undertaken to control the population. Id. at 11.
The Draft EA stated that “Public and Media Management during helicopter gather and bait trapping operations would be conducted in accordance with WO IM 2013-058,” which “establishes policy and procedures for safe and transparent visitation by the public and media at WH&B gather operations, while ensuring the humane treatment of wild horses and burros.” Id. at 5.
Plaintiffs provided extensive comments on the Draft EA regarding public access to BLM roundups and the benefits of using real-time cameras during roundups. Id. ¶68. Plaintiffs' comments were based on “their intimate knowledge of and expertise in videography involving wild horses[,]” id. ¶75, and their “subject matter expertise on public observation of wild horse roundup, removal and temporary holding operations[.]” Id. ¶95. Plaintiffs asserted that the Draft EA failed to address alternatives consistent with the project purpose and need that would increase transparency during project implementation. Id. Plaintiffs encouraged BLM to use video cameras to “reduce adverse impacts from BLM's activities to federally protected animals and reduce adverse impacts to the members of the public who have recreational, emotional, and aesthetic interests in these animals and their welfare.” Id. (citing TCF Comment Letter of May 23, 2022 at 25-26). Plaintiffs expressed “deep concerns over the lack of meaningful observation at helicopter roundups[,]” and that “[f]requently observation consists only of distant horses running from distant helicopters which makes it difficult to actually see the treatment of the animals by the BLM.” Id. (citing TCF Comment Letter Attachment 26 at 3).
Plaintiffs proposed that BLM install “[r]eal-time cameras with GPS . . . on all aircraft and/or helicopters, trap sites and holding pens used in government operations and this video be live streamed on the internet and made available to the public online[.]” Compl. ¶75 (citing TCF Comment Letter at 27). Plaintiffs provided extensive technical specifications and details on which cameras to use, and on where and how cameras could be installed in trap sites and holding pens and on helicopters, Id. (citing TCF Comment Letter at 28); Plaintiffs offered to provide “technical and financial assistance to ensure safe installation and operation of these real-time cameras.” Id. at ¶77 (citing TCF Comment Letter at 27). Plaintiffs stated that cameras “will dramatically improve the transparency and accountability of roundup operations and enable the American public to observe . . . the impacts of that activity on-and treatment of-their wild horses and burros.” Id. at ¶76 (citing TCF Comment Letter at 27). Plaintiffs said that “cameras would allow observers to identify concerns at an early stage of the roundup, thus better allowing BLM to rectify such issues promptly,” and stressed that “[p]ublic observation is the best way for [BLM] to assess the social acceptability of any given roundup and to assure the public that the horses are being treated in a humane manner.” Id. (citing TCF Comment Letter Attachment 26 at 4). Plaintiffs stated that incorporating cameras will “reduce adverse impacts from BLM's activities to federally protected animals and reduce adverse impacts to the members of the public who have recreational, emotional, and aesthetic interests in these animals and their welfare.” Id. ¶68 (citing TCF Comment Letter at 25-26).
Plaintiffs' evidence included a report that was commissioned by BLM's roundup contractor, Cattoor Livestock Roundup. Id. ¶78 (citing TCF Comment Letter Attachment 25). The report was prepared by Mark J. Deesing, Animal Behavior & Facilities Design consultant for Grandin Livestock Handling, and stated:
Video monitoring of animal operations is a good way to ensure humane handling is taking place on a daily basis. Video cameras mounted in helicopters and in the capture and holding pens can also render the activists' videos as simply nothing more than proof that your business ‘walks the walk' when it comes to upholding animal welfare standards.Id. Plaintiffs also submitted the opinion of Dr. Temple Grandin, a renowned animal behaviorist and humane livestock handling, who stated:
To document how the horses are gathered and handled, the entire procedure should be recorded on video so that it can be evaluated by outside experts or viewed by the public. The best way to record the videos is for the helicopters to have GPS equipped cameras. Cameras should also be in the catch corrals AND TEMPORARY HOLDING PENS to video all the handling in the corrals.Id. (citing TCF Comment Letter Attachment 27) (emphasis in original).
On January 9, 2023, BLM published the Final EA with no substantive changes. See https://eplanning.blm.gov/publicprojects/2012644/200516248/20072047/250078229/DOI-BLM-ORWA-V000-20210023EA.pdf (“Final EA”) (last accessed April 8, 2024). None of the five alternatives responded to Plaintiffs' proposal regarding the use of real-time video cameras, Id. at 9-13, and the “Issues Considered But Not Analyzed” section did not discuss real-time cameras. Id. at 72. On January 13, 2023, BLM published its finding of no significant impact (“FONSI”), which did not refer or respond to Plaintiffs' proposal regarding cameras. See https://eplanning.blm.gov/publicprojects/2012644/200516248/20072364/250078546/DOI-BLM-ORWA-V000-2021 -0023FONSI.pdf (last accessed April 8, 2024). On January 13, 2023, BLM also issued a Decision Record that selected Alternative 1 as the management plan. See https://eplanning.blm.gov/publicprojects/2012644/200516248/20072365/250078547/DOI-BLM-ORWA-V000-2021 -0023DR.pdf (last accessed April 8, 2024) (“Decision Record”).
The Decision Record included BLM's response to Plaintiffs' request for real-time camera access, which stated:
The comment supporting cameras on aircrafts has been noted, but falls outside the scope of this EA. In accordance with WO IM 2013-058: “The public/media are prohibited from riding or placing equipment in the helicopters contracted for a gather. The National Gather Contract §3.1.i specifies that ‘no cameras, including video cameras will be placed on the Contractor's drive trapping equipment.”Id. at 13.
Plaintiffs bring this action alleging that BLM's failure to include real-time cameras in their management plan for the Three Fingers and Jackies Butte HMAs violated their rights under the First Amendment and NEPA. Compl. ¶¶87-95. Defendants' partial motion to dismiss challenges Plaintiffs' NEPA claim alone and argues that Plaintiffs lack standing and fail to state a claim. Mot. 10-19.
STANDARDS
I. Rule 12(b)(1) Motion To Dismiss
“Federal courts are courts of limited jurisdiction.” Corral v. Select Portfolio Servicing, Inc., 878 F.3d 770, 773 (9th Cir. 2017) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). A motion to dismiss under Rule 12(b)(1) challenges the jurisdiction of the court over the subject matter of the complaint. FED. R. CIV. P. 12(b)(1). “Subject-matter jurisdiction, because it involves a court's power to hear a case, can never be forfeited or waived.” Rainero v. Archon Corp., 844 F.3d 832, 841 (9th Cir. 2016). The court must dismiss any case over which it lacks subject matter jurisdiction. FED. R. CIV. P. 12(h)(3). Once a defendant has moved to dismiss for lack of subject matter jurisdiction, the plaintiff “bears the burden to establish subject matter jurisdiction by a preponderance of the evidence.” United States ex rel. Mateski v. Raytheon Co., 816 F.3d 565, 569 (9th Cir. 2016).
A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction may be either “facial” or “factual.” See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (citation omitted). In a facial attack, “the challenger asserts that the allegations contained in the complaint are insufficient on their fact to invoke federal jurisdiction.” Id. In a factual attack, “the challenges dispute the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.” Id.; see also Pride v. Correa, 719 F.3d 1130, 1133 n.6 (9th Cir. 2013) (same). In resolving a factual attack, the court “may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment.” Safe Air for Everyone, 373 F.3d at 1039. The court “need not presume the truthfulness of the plaintiff's allegations.” Id.
“Because standing and ripeness pertain to federal courts' subject matter jurisdiction, they are properly raised in a Rule 12(b)(1) motion to dismiss.” Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010).
II. Rule 12(b)(6) Motion to Dismiss
A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the claims. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). When evaluating the sufficiency of a complaint's factual allegations, the court must accept all material facts alleged in the complaint as true and construe them in the light most favorable to the non-moving party. Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012). A motion to dismiss under Rule 12(b)(6) will be granted if a plaintiff alleges the “grounds” of his “entitlement to relief' with nothing “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action [.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact) [.]” Id. (citations and footnote omitted).
To survive a motion to dismiss, a complaint “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). A plaintiff must “plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. In other words, a complaint must state a plausible claim for relief and contain “well-pleaded facts” that “permit the court to infer more than the mere possibility of misconduct[.]” Id. at 679.
III. Standing
A. Article III Standing
Article III standing is a threshold jurisdictional question in every case before a federal court. Warth v. Seldin, 422 U.S. 490, 517-18 (1975). Before the judicial process may be invoked, a plaintiff must show that the facts alleged present the court with a justiciable “case or controversy” in the constitutional sense and that they are the “proper plaintiff to raise the issues sought to be litigated.” Linda-R.S. v. Richard D., 410 U.S. 614, 616 (1973); McMichael v. County of Napa, 709 F.2d 1268, 1269 (9th Cir. 1983) (same). A party seeking to invoke the court's authority must demonstrate “‘such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of the issues upon which the court so largely depends.'” Id. (citing Baking v. Carr, 369 U.S. 186, 204 (1962)).
Standing exists under Article III when “a plaintiff [has] (1) a concrete and particularized injury that (2) is caused by the challenged conduct and (3) is likely redressable by a favorable judicial decision.” Juliana v. United States, 947 F.3d 1159, 1168 (9th Cir. 2020) (citing Friends of the Earth v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000)).
“To demonstrate standing to bring a procedural claim-such as one alleging a NEPA violation-a plaintiff ‘must show that the procedures in question are designed to protect some threatened concrete interest of his that is the ultimate basis of his standing.' WildEarth Guardians v. U.S. Dep't of Agric., 795 F.3d 1148, 1154 (9th Cir. 2015) (citing W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 485 (9th Cir. 2011). For an environmental interest to be “‘concrete,'” there must be a “‘geographic nexus between the individual asserting the claim and the location suffering an environmental impact.'” Id. “[T]he desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purposes of standing.” Laidlaw, 528 U.S. at 183 (simplified). Thus, “environmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons for whom the aesthetic and recreational values of the area will be lessened by the challenged activity.” Id.
Once plaintiffs seeking to enforce a procedural requirement establish a concrete injury, “‘the causation and redressability requirements are relaxed.'” WildEarth Guardians, 795 F.3d at 1154 (citing W. Watersheds Project, 632 F.3d at 485). “In analyzing redressability . . . [courts] assume its existence.” Juliana, 947 F.3d at 1170 (citing M.S. v. Brown, 902 F.3d 1076, 1083 (9th Cir. 2018)). “‘Plaintiffs alleging procedural injury must show only that they have a procedural right that, if exercised, could protect their concrete interests.'” WildEarth Guardians, 795 F.3d at 1154 (citing Salmon Spawning & Recovery All. v. Gutierrez, 545 F.3d 1220, 1225 (9th Cir. 2008) (emphasis in original)). “Redress need not be guaranteed, but it must be more than ‘merely speculative.'” Id. (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)).
B. APA Standing
In addition to the Article III requirements, which are jurisdictional, see DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341-42 (2006), “a plaintiff challenging an agency's compliance with NEPA must establish prudential standing by demonstrating that its injury falls ‘within the zone of interests to be protected by the statute.'” Solar Energy Indus. Ass'n v. FERC, 80 F.4th 956, 990 (9th Cir. 2023) (citing Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am. v. United States Dep't of Agric., 415 F.3d 1078, 1103 (9th Cir. 2005) (quoting Nevada Land Action Ass'n v. United States Forest Serv., 8 F.3d 713, 715-16 (9th Cir. 1993)). NEPA is an environmental statute. Id. Thus, “‘to assert a claim under NEPA, a plaintiff must allege injury to the environment[.]'” Id.
IV. Substantive Law
A. WHA
Congress passed the WHA in 1971 to protect horses and burros as “living symbols of the historic and pioneer spirit of the West.” 16 U.S.C. § 1331. Under the WHA, “wild free-roaming horses and burros shall be protected from capture, branding, harassment, or death[,]” and “they are to be considered in the area where presently found, as an integral part of the natural system of public lands.” Id. The WHA provides that the Secretary of the Interior “shall 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. § 1333(a). The Secretary “shall maintain a current inventory of wild free-roaming horses and burros on given areas of the public lands[,]” “determine appropriate management levels of wild-free-roaming horses and burros[,]” and determine “whether action should be taken to remove excess animals.” Id. § 1333(b)(1). Where the Secretary determines that an overpopulation exists “he shall immediately remove excess animals from the range so as to achieve appropriate management levels,” Id. § 1333(b)(2), and ensure that “excess wild free-roaming horses and burros [are] humanely captured and removed.” Id. § 1333(b)(2)(B).
Plaintiffs are not seeking relief directly under the WHA. See Compl. ¶14 n.1.
B. NEPA
NEPA has two main aims. Baltimore Gas & Elec. Co. v. Nat. Res. Def. Council, 462 U.S. 87, 97 (1983). It requires agencies to “consider every significant aspect of the environmental impact of a proposed action” and “inform the public that it has indeed considered environmental concerns in its decision-making process.” Id. (cited by San Luis Obispo Mothers for Peace v. Nuclear Regul. Comm'n, 635 F.3d 1109, 1115 (9th Cir. 2011). The Court's role is to ensure that the agency adequately considers and discloses the environmental impact of its action. San Luis Obispo Mothers for Peace, 635 F.3d at 1115 .
NEPA is a procedural statute, not mandating particular results but requiring agencies to take a hard look at the environmental consequences of their decisions. Westlands Water Dist. v. U.S. Dep't of Interior, 376 F.3d 853, 865 (9th Cir. 2004). The hard look requirement includes “both a complete discussion of relevant issues as well as meaningful statements regarding the actual impact of proposed projects.” Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1172 (9th Cir. 2006), abrogated on other grounds by Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008). When reviewing that discussion, courts “ensure that the procedure followed by the Service resulted in a reasoned analysis of the evidence before it...” Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 986 (9th Cir. 1985). To support their analysis, agencies shall . . . . identify any methodologies used and . . . reference . . . the scien[ce] . . . relied upon” to support these methodologies. Earth Island Inst., 442 F.3d at 1159-60.
NEPA mandates that an agency provides a detailed statement regarding the alternatives to a proposed action. See 42 U.S.C. § 4332(2)(C)(iii); N. Alaska Env't Ctr. v. Kempthorne, 457 F.3d 969, 978 (9th Cir. 2006). Under NEPA, “[c]onsideration of reasonable alternatives is necessary to ensure that the agency has before it and takes into account all possible approaches to, and potential environmental impacts of, a particular project.” Id. “An agency need not . . . discuss alternatives similar to alternatives actually considered, or alternatives which are ‘infeasible, ineffective, or inconsistent with the basic policy objectives for the management of the area.'” Id. (citations omitted). An agency's consideration of alternatives “is sufficient if it considers an appropriate range of alternatives, even if it does not consider every available alternative.'” Id. (citing Headwaters, Inc. v. Bureau of Land Management, 914 F.2d 1174, 1181 (9th Cir. 1990)).
NEPA mandates the preparation of an Environmental Impact Statement (“EIS”) for “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C); 40 C.F.R. § 1508.11 (2019). An agency may prepare an EA to determine whether the effects of an action will be significant, and if not, the agency may prepare a FONSI and forego preparation of an EIS. See 40 C.F.R. §§ 1501.3, 1501.4(c), (e), 1508.9, 1508.13. The EA is a “workable public document that briefly provides evidence and analysis for an agency's finding of environmental impact.” Native Ecosystems Council v. Weldon, 697 F.3d 1043, 1053 (9th Cir. 2012) (citations omitted).
DISCUSSION
I. Motion to Dismiss for Lack of Subject Matter Jurisdiction
Defendants characterize Plaintiffs' NEPA claim as alleging an “impairment of their First Amendment rights” and depend on that characterization in challenging Plaintiffs' standing for their NEPA claim. See Mot. 16-17. Defendants argue that Plaintiffs lack standing because they fail to allege an injury in fact based on environmental interests and fail to allege that their claim is within the zone of interests of NEPA. Id. This Court finds that Plaintiffs have standing under Article III and the APA for their NEPA claim because they plausibly allege a concrete interest in observing BLM's roundup of wild horses and a procedural injury to that interest, and their claim is within the zone of interests protected by NEPA.
Defendants' motion to dismiss Plaintiffs' NEPA claim under Fed.R.Civ.P. 12(b)(1) asserts a “facial attack” and does not challenge the factual allegations contained in the complaint. Thus, “[w]hether subject matter jurisdiction exists . . . does not depend on resolution of a factual dispute,” and this Court “assume[s] [Plaintiffs'] allegations to be true and draw[s] all reasonable inferences in [their] favor.” See Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004).
The complaint specifically alleges that BLM “restrict[s] public observation of the wild horse roundups,” id. ¶92, and that “BLM violated NEPA . . . and the APA” by “failing to consider any alternative providing for the use of real-time cameras,” Id. ¶93, “failing to take a hard look at substantial evidence and expert recommendations calling for the use of cameras,” Id. ¶94, and “failing to adequately respond to substantive comments by Plaintiffs . . . on the . . . feasibility of using high-definition cameras,” Id. ¶95.
A. Article III Standing
Plaintiffs argue that their NEPA claim is based on “quintessential environmental interests” that are distinct from those alleged in their “separately pled [] First Amendment claim.” Resp. 24. This Court agrees. Although Plaintiffs' NEPA claim emphasizes the public's alleged First Amendment right to observe wild horse roundups, the injury that Plaintiffs assert is that BLM refused to include in the EA the alternative that helicopter roundups of wild horses could be conducted with “the use of real-time cameras.” See Compl. ¶933; see also Ashley Creek Phosphate Co. v. Norton, 420 F.3d 934, 937-38 (9th Cir. 2005) (noting that “[t]he injury Ashley Creek asserts is that BLM refused to include in the [Environmental Impact Statement] the alternative that Agrium could mine phosphate from Ashley Creek's Vernal deposits”); see also Nuclear Info. & Res. Serv. v. Nuclear Regul. Comm'n., 457 F.3d 941, 949 (9th Cir. 2006) (noting that “the injury [the plaintiff] asserts is NRC's failure to comply with the requirements of NEPA”). Like the plaintiffs in Ashley Creek, Plaintiffs' alleged injury is “a procedural one that . . . amounts to a claim that BLM injured [them] by failing to comply with NEPA's procedural requirement of considering alternatives.” 420 F.3d at 938; see also Cantrell v. City of Long Beach, 241 F.3d 674, 679 (9th Cir. 2001) (noting that “NEPA is a procedural statute” and that “[the plaintiff]s allege a procedural injury by challenging the adequacy of the Navy's FEIS”).
Defendants argue that Plaintiffs' response attempts to “recharacterize their [NEPA] claim [] into one that is premised on injuries relating to the humane treatment of wild horses rather than Plaintiffs' alleged First Amendment rights.” Reply 6 (comparing Resp. 20, 25-26 to Compl. ¶¶90-95). Defendants contend that Plaintiffs should not be permitted to “amend their complaint to assert . . . their newly formulated NEPA claim.” Id. at 24. However, as discussed above, this Court finds that Plaintiffs' NEPA claim-as alleged in the complaint-does not allege injuries to Plaintiffs' constitutional rights. Rather, Plaintiffs' NEPA claim alleges procedural injuries to Plaintiffs' legally cognizable interest in the roundup of wild horses. Thus, this Court disagrees that Plaintiffs attempt to “recharacterize” their NEPA claim in their response to Defendants' motion to dismiss. Although a plaintiff “may not effectively amend [his] Complaint by raising a new theory . . . in [his] response to a [dispositive] motion,” La Asociacion de Trabajadores de Lake Forest v. City of Lake Forest, 624 F.3d 1083, 1089 (9th Cir. 2010), Plaintiffs have not attempted to do so.
Defendants argue that “Plaintiffs cannot show a cognizable injury because “the harm they are asserting is not environmental in character.” Mot. 16. However, Defendants acknowledge that Plaintiffs have “aesthetic and recreational interests in the areas,” Id. at 15-16, and there is no dispute that Plaintiffs are “dedicated to the preservation of wild horses and burros on public lands,” or that they “enjoy viewing, studying, photographing, and filming the natural behavior of wild horses in their natural habitats.” Compl. ¶¶7-8. Moreover, the complaint alleges extensive facts regarding “th[e] long history of a lack of meaningful access for public viewing [of the wild horse roundups],” Id. ¶74, and alleges that BLM's restrictions on public access “impairs [Plaintiffs'] ability to advocate for the human, responsible, and transparent management of the horses.” Id. ¶13. Because Plaintiffs have alleged “that they use the affected area and are persons for whom the aesthetic and recreational values of the area will be lessened by the challenged activity[,]” Laidlaw, 528 U.S. at 183, they “adequately allege injury in fact.” Id. (simplified).
Defendants argue that the complaint “provides no specifics about any inhumane treatment of the . . . wild horses[,]” Id., and “fail[s] to show how the lack of videorecording of wild horse gathers causes . . . inhumane treatment.” Id. at 15. However, Plaintiffs are not required to show that wild horses have been or will be treated inhumanely by BLM to show a cognizable injury and standing under Article III. See Cantrell, 241 F.3d at 679. In Cantrell, a group of birdwatchers challenged the adequacy of an EIS issued by the U.S. Navy regarding the future use of a decommissioned naval station. 241 F.3d at 676. The Navy argued that “there is no injury in fact because the plaintiffs have not shown that the birds have been harmed” by the proposed changes, but the Ninth Circuit found the argument “unavailing.” Id. at 681. As the court explained, “the relevant showing for purposes of Article III standing is not injury to the environment but injury to the plaintiff.” Id. at 682 (citing Laidlaw, 528 U.S. at 181). Thus, whether the birds would be harmed by the proposed land use changes was “simply beside the point.” Id. (citation omitted). Rather, it was sufficient for the plaintiffs “to allege[] that the destruction of the areas [in question] would result in aesthetic harm to the birdwatchers by interfering with their ability to enjoy viewing the birds in their habitats.” Id. As the court remarked, ‘“[Requiring the plaintiff to show actual environmental harm as a condition for standing confusing the jurisdictional inquiry . . . with the merits inquiry.'” Id. (citing Ecological Rights Foundation v. Pacific Lumber Co., 230 F.3d 1141, 1149 (9th Cir. 2000)).
Here, Plaintiffs allege that the use of real-time cameras would ensure more humane treatment of wild horses during roundups by allowing the public to observe the roundups, Compl. ¶78; Plaintiffs further allege that BLM's failure to consider real-time cameras harms their undisputed aesthetic and recreational interests in observing, enjoying, studying, documenting, and advocating for the well-being of wild horses, see Compl. ¶¶13, 22, 27. Plaintiffs have therefore alleged an injury in fact, see Cantrell, 241 F.3d at 682, and have demonstrated that they are the “proper plaintiff[s] to raise the issues sought to be litigated.” See Linda-R.S. v. RichardD., 410 U.S.614, 616 (1973); McMichael, 709 F.2d at 1269. Indeed, the Ninth Circuit has long held that “a cognizable procedural injury exists when a plaintiff alleges that a proper EIS [or EA] has not been prepared under [NEPA] when the plaintiff also alleges a ‘concrete' interest-such as an aesthetic or recreational interest-that is threatened by the proposed action.” City of Sausalito v. O'Neill, 386 F.3d 1186, 1197 (9th Cir. 2004) (citing Sierra Club v. Morton, 405 U.S. 727, 738 (1972)); see also Ashley Creek, 420 F.3d at 938 (same).
Turning to causation and redressability, the Ninth Circuit has stated that “[o]nce a plaintiff has established in injury in fact under NEPA”-as Plaintiffs do here-“the causation and redressability requirements are relaxed.” W. Watersheds, 632 F.3d at 485 (citing Cantrell, 241 F.3d at 682). To show causation and redressability, Plaintiffs “must show only that they have a procedural right that, if exercised, could protect their concrete interests,” WildEarth Guardians, 795 F.3d at 1154-which Plaintiffs have done. Plaintiffs allege that incorporating cameras will “reduce adverse impacts from BLM's activities to federally protected animals and reduce adverse impacts to the members of the public who have recreational, emotional, and aesthetic interests in these animals and their welfare.” Compl. ¶68 (citing TCF Comment Letter at 25-26). Plaintiffs allege that cameras “will dramatically improve the transparency and accountability of roundup operations and enable the American public to observe . . . the impacts of that activity on-and treatment of-their wild horses and burros.” Id. at ¶76 (citing TCF Comment Letter at 27). Plaintiffs further allege that real-time cameras are “a good way to ensure humane handling [of wild horses] is taking place” during roundups. Compl. ¶78. If BLM were to adopt Plaintiff's real-time camera proposal, that action could protect Plaintiffs' concrete interest in observing roundups of wild horse and in the humane treatment of wild horses during roundups. Thus, Plaintiffs sufficiently allege causation and redressability. See Juliana, 947 F.3d at 1170 (noting that “[r]edress need not be guaranteed, but it must be more than ‘merely speculative'”) (citation omitted).
In sum, this Court finds that Plaintiffs' NEPA claim sufficiently alleges an injury in fact, causation, and redressability and that Plaintiffs therefore have standing under Article III to assert their NEPA claim.
B. APA Standing
Plaintiffs also have standing under the APA because their NEPA claim is concerned with the observation of wild horse roundups and is therefore within the zone of interests protected by NEPA. See Nuclear Info., 457 F.3d at 950 (noting that “it is well-settled that the zone of interests protected by NEPA is environmental”). Defendants argue that Plaintiffs' NEPA's claim asserts a violation of their First Amendment rights and fails to allege harm to the environment, Mot. 1719, but this Court finds again that Plaintiffs' NEPA claim does not allege a constitutional injury. Even if it did, that does not obviate the environmental concern at the heart of their NEPA claim, i.e., the humane treatment of wild horses during roundups and the public's ability to observe, enjoy, and study the roundups, and ensure the humane treatment of wild horses. As the Ninth Circuit noted in Solar Energy Industries, a plaintiff asserting a NEPA claim can satisfy NEPA's zone of interest requirement “even if his or her interest is primarily economic, as long as he or she also alleges an environmental interest[.]” 80 F.4th at 990-91.
Here, Plaintiffs satisfy the zone of interest requirement under NEPA by alleging that realtime cameras will help ensure the humane treatment of horses-even if an additional or even primary concern is an impairment of their First Amendment rights. See id. at 991 (noting that the “environmental harms that [the plaintiffs] fear . . . an increase in pollution and greenhouse-gas emissions . . . undoubtedly fall within NEPA's zone of interests”) (citing Navajo Nation v. Dep't of the Interior, 876 F.3d 1144, 1164 (9th Cir. 2017) (quoting Cantrell, 241 F.3d at 681); cf. Kanoa Inc. v. Clinton, 1 F.Supp.2d 1088, 1093 (D. Haw. 1998) (holding that “[the p]laintiff does not meet the standing requirements . . . under the APA and NEPA” where he “failed to allege a non-pretextual environmental injury” and “asserted purely economic interests”).
In sum, Plaintiffs have alleged sufficient facts to show that they have standing under Article III and the APA. Defendants' motion to dismiss for lack of standing under Rule 12(b)(1) therefore fails.
II. Motion to Dismiss for Failure to State a Claim
Defendants argue that Plaintiffs' NEPA claim should be dismissed under Rule 12(b)(6) for failure to state a claim. Mot. 19-23. Plaintiffs argue that they have stated a NEPA claim on which relief can be granted because their claim “stems from procedural and environmental injuries to Plaintiffs' recreational, aesthetic, and other concrete interests in the wild horses of these HMAs, their humane treatment, and their habitat.” Resp. 26. This Court agrees and finds that Plaintiffs sufficiently allege a NEPA claim.
As a threshold matter, Defendants fail to identify the elements of a NEPA claim asserted under the APA. This Court's review of relevant caselaw indicates that, to plausibly assert a claim under NEPA and the APA, a plaintiff must at least, (1) allege a final agency action, and (2) challenge a specific agency action. See Whitewater Draw Natural Resource Conservation District v. Mayorkas, 5 F.4th 997, 1007-10 (9th Cir. 2021) (affirming dismissal of NEPA and APA claim under Rule 12(b)(6) where the challenged agency action-a DHS policy manual- was “not a final agency decision subject to review under the APA” and because “[i]t is axiomatic that Plaintiffs must identify an ‘agency action' to obtain review under the APA”). Furthermore, NEPA claims in this circuit commonly allege that a federal agency “fail[ed] to comply with NEPA's procedural requirement of considering alternatives[,]” see Ashley Creek, 420 F.3d at 938; “failed to take the requisite ‘hard look' at the data underlying their analysis and decisions[,]” see Earth Island Inst., 442 F.3d at 1167; or failed to “adequately respond to” expert testimony on the impacts of the agency's actions, see Protect Our Communities Found. v. LaCounte, 939 F.3d 1029, 1041 (9th Cir. 2019).
Courts have also dismissed NEPA claims under Rule 12(b)(6) that involved “no major federal action[,]” see N. Cnty. Cmty. All., Inc. v. Salazar, 573 F.3d 738, 749 (9th Cir. 2009); where the claim fell “within NEPA's exception for criminal enforcement actions[,]” see Nw. Ctr. for Alternatives to Pesticides v. U.S. Dep't of Homeland Sec., 552 F.Supp.3d 1078, 1091 (D. Or. 2021)); and where the plaintiff failed to name a proper defendant, see Cetacean Community v. Bush, 249 F.Supp.2d 1206, 1213 (2003) (dismissing NEPA claim under Rule 12(b)(6) because “the President is not an ‘agency' within the meaning of the APA, [and the p]laintiffs cannot obtain judicial review under the APA of its claims that the President violated . . . NEPA”).
Here, Plaintiffs challenge BLM's final EA for the Three Fingers and Jackies Butte HMAs and allege that BLM failed to “consider any alternative providing for the use of real-time cameras” during roundups and failed to “take a hard look at” or “adequately respond to” expert testimony on the feasibility and benefits of real-time cameras. Compl. ¶¶93-95. Defendants do not dispute that Plaintiffs challenge a final agency action or that Plaintiffs' allegations align with typical NEPA claims, and they do not argue that Plaintiffs' NEPA claim suffers from any of the deficiencies noted above such as failing to allege a major federal action or name a proper defendant.
Instead, Defendants assert that “‘NEPA does not require the agency to consider every impact or effect of its proposed again, but only the impact or effect on the environment,'” and argue that “the alleged impairment of Plaintiffs' First Amendment right is not an impact to the environment[.]” Mot. 19-20. However, that argument continues to misconstrue Plaintiff's NEPA claim as alleging a constitutional injury-which it does not. Moreover, Defendants cite NEPA cases that do not analyze the adequacy of a NEPA claim on a motion to dismiss or state the elements of a NEPA claim. See id. (citing Bicycle Trails Council of Marin v. Babbitt, 82 F.3d 1445, 1466 (9th Cir. 1996); Metro. Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 772 (1983)). Even if a NEPA claim must allege some impact to the environment, Defendants acknowledge the environmental nature of Plaintiffs' NEPA claim by stating that, “according to Plaintiffs, BLM must consider alternatives that ensure the humane treatment of wild horses, as required by the Wild Horses Act,” Reply 11, and they do not dispute that the humane treatment of horses is an environmental concern.
Defendants argue that the “proposed alternative [of mounting real time cameras to helicopters] . . . is not ‘reasonably related to the purpose of the project[,]'” Mot. 21, and cite Westlands Water Dist. v. U.S. Dep't of Interior, 376 F.3d 853, 868 (9th Cir. 2004). In Westlands Water Dist., the Ninth Circuit noted that the “range of alternatives that must be considered in the EIS need not extend beyond those reasonably related to the purpose of the project,” Id., and did not discuss the elements of a NEPA claim. Again, however, even if a NEPA claim must allege that the plaintiff's proposal is “reasonably related to the purpose of the project,” that element is satisfied here. Indeed, Section 1333(b) of the WHA mandates that “excess wild free-roaming horses and burros . . . be humanely captured and removed” by BLM, see 16 U.S.C.
§ 1333(b)(2)(b), and the “purpose and need of BLM's 10-year plan” was to “return the herds to levels within the established AMLs . . . and to restore a natural ecological balance . . . on public lands consistent with § 1333(b) .” Mot. 21-22 (citing Draft EA Section 1.3) (emphasis added). Moreover, the complaint alleges that real-time cameras would decrease the risk of inhumane treatment of wild horses during BLM's efforts to reduce herd levels and cites expert opinion. Compl. ¶78. Given BLM's mandate under the WHA to conduct humane roundups and Plaintiffs' plausible allegation that real-time cameras will reduce the risk of inhumane treatment of horses during roundups, this Court finds that Plaintiffs' proposed alternative is reasonably related to BLM's plan to reduce wild horse populations in the Jackies Butte and Three Finger HMAs “consistent with § 1333(b) [of the WHA].” See Mot. 21. As the Ninth Circuit has emphasized, “[t]he stated goal of the project necessarily dictates the range of ‘reasonable' alternatives and an agency cannot define its objectives in unreasonably narrow terms.” Westlands Water Dist., 376 F.3d at 868.
Last, Defendants attack the merits of Plaintiffs' NEPA claim by asserting the following arguments: “NEPA does not require BLM to consider the use of real-time cameras during gather and holding operations,” Reply 25; “Plaintiffs' contention that its real-time videorecording proposal was an alternative required under NEPA is without merit,” Id.; “[s]peculative mitigation measures are not required under NEPA[,]” Id. at 27; and “BLM was not required to explore Plaintiffs' proposal more extensively[.]” Id. At this early stage of litigation, Plaintiffs need not prove that BLM failed to take a ‘hard look' at the consequences of conducting roundups without real-time cameras or that BLM failed to adequately address Plaintiffs' proposal. Indeed, Defendants' arguments speak to the ultimate issue presented by Plaintiffs' NEPA claim, i.e., whether real-time cameras would be an easy, cost-effective method to facilitate public viewing of roundups and prevent inhumane treatment of horses during roundups, and whether BLM violated NEPA by failing to adopt Plaintiffs' alternative or provide a more substantive reason for declining to do so.
In sum, Plaintiffs sufficiently state a claim under NEPA and the APA because Plaintiffs challenge a final and specific agency action, they allege that BLM's failure to consider their proposal of real-time cameras will impact their environment interests, and Defendants provide no other grounds to dismiss Plaintiff's NEPA claim under Rule 12(b)(6).
RECOMMENDATION
BLM's Partial Motion to Dismiss, ECF 17, should be DENIED.
SCHEDULING ORDER
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
A party's failure to timely file objections to any of these findings will be considered a waiver of that party's right to de novo consideration of the factual issues addressed herein and will constitute a waiver of the party's right to review of the findings of fact in any order or judgment entered by a district judge. These Findings and Recommendation are not immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of judgment.