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Beaver County v. United States Department of Interior

United States District Court, D. Utah, Central Division

October 6, 2017

BEAVER COUNTY, UTAH, a Utah political subdivision, Plaintiff,
v.
UNITED STATES DEPARTMENT OF THE INTERIOR; RYAN ZINKE, Secretary of the Interior; UNITED STATES BUREAU OF LAND MANAGEMENT; MICHAEL NEDD, in his capacity as Acting Director of the Bureau of Land Management; EDWIN L. ROBERSON, in his capacity as Utah State Director of the Bureau of Land Management; and DOES 1-10, Defendants.

          MEMORANDUM DECISION AND ORDER GRANTING MOTION TO DISMISS

          Clark Waddoups United States District Court Judge

         Before the court is the United States Department of Interior; Secretary of Interior Ryan Zinke (“the Secretary”); the Bureau of Land Management (“BLM”); Acting BLM Director, Michael Nedd; and BLM State Director Edwin L. Roberson's (collectively “the Federal Defendants”) Motion to Dismiss. (ECF No. 20.) For the reasons set forth below, the court GRANTS the motion, without prejudice, and also GRANTS Plaintiff leave, based on the representations made at the hearing before the court on July 19, 2017, to amend its Complaint for Declaratory and Injunctive Relief. (ECF No. 2.)

         INTRODUCTION

         Under the Wild Horse Act (“the WHA”), “[a]ll wild free-roaming horses and burros” are under the jurisdiction of the Secretary, who is authorized and directed to protect and manage wild free-roaming horses and burros in a manner that will achieve and maintain natural ecological balance on public lands. (ECF No. 2 at 5.) Pursuant to the WHA, the Secretary and BLM are charged to oversee management of wild horses on public lands within designated “herd management areas” (“HMAs”) established by the BLM. (Id.) In establishing HMAs, the BLM must consider the Appropriate Management Level (“AML”) for the herd, the habitat requirement for the animals, as well as relationships with other uses of public and adjacent private lands. (Id.) Pursuant to statute, the BLM maintains a current inventory of wild horses on public lands in each HMA and makes a determination whether there is overpopulation, and then determines whether removal, destruction of excess animals, or other means are necessary to achieve the AML. (Id.)

         The Sulphur Herd Management Area (“Sulphur HMA”) is located in portions of western Beaver, Iron and Millard Counties. (ECF No. 2 at 6.) The Federal Land Policy Management Act requires that the Secretary, and by extension the BLM, manage public lands under Resource Management Plans (“RMP”). (ECF No. 2 at 4). The Sulphur HMA is managed under two RMPs which require the BLM to remove excess wild horses and maintain the population below the established AML. (ECF No. 2 at 7.) Based on the controlling RMPs, the BLM concluded the AML for the Sulphur HMA is a range of 135 to 180 adult horses, or 165 to 250, if wild horses of all ages are included. (Id.) As of March 2017, it is estimated that about 1, 150 horses were living in the Sulphur HMA. (Id. at 7.)

         Despite finding that there is an overpopulation of wild horses, and that excess wild horses need to be removed from the Sulphur HMA, the BLM authorized a Gather Plan that does not immediately and permanently remove all excess wild horses in violation of the Act. (ECF No. 2 at 8.) Instead, the BLM plans to conduct gathers of wild horses two to four times a year over a six to ten year period, with an expectation that the AML will not be achieved for at least six to ten years. (ECF No. 2 at 9.) The BLM began to implement this Gather Plan on about January 18, 2017. (Id.) During a gather in January 2017, the BLM removed about 60 to 70 percent of the wild horse population in the Sulphur HMA; however, this still leaves an excess of about 350 to 450 wild horses in the area. (Id.) Moreover, pursuant to the Gather Plan, the BLM intends to return approximately 400 of the wild horses that were removed, including 200 mares treated with a contraceptive vaccine, back to the Sulphur HMA. (Id.) The contraceptive vaccine, PZP, is known to only be effective for one-year. (Id.) Thus, if the BLM proceeds as planned--conducting similar gathers every few years, with the administration of fertility treatment and subsequent releases--the population of wild horses in the Sulphur HMA may not be reduced enough to reach the AML over the next ten-year period. (ECF No. 2 at 10.)

         Accordingly, on February 6, 2017, Plaintiff, Beaver County (“the County”), filed a Complaint for Declaratory and Injunctive Relief (“the Complaint”). (ECF No. 2.) The Complaint alleges five causes of action: 1) failure to comply with the RMPs in violation of the Administrative Procedures Act (“APA”); 2) failure to immediately remove excess wild horses in violation of the APA; 3) allegations that the Federal Defendants' actions are arbitrary and capricious in violation of the APA; 4) mandamus relief; and 5) injunctive relief. (ECF No. 2 at 15- 20.)

         Regarding allegations of “Local Harm” and “Harm to Rangeland and Wild Horses, ” the Complaint states, in relevant part, as follows:

59) The excess wild horse population has caused, and continues to cause, serious harm to Beaver County and its citizens.
. . .
63) Approved animal unit month (“AUM”) is the amount of forage necessary to sustain a single cow and calf pair, five sheep, or five goats for a month period. Grazing permittees are allotted specific amounts of approved AUMs. Between 1954 and 2014 there was a 53 percent decrease in approved AUMs, from 18.2 million AUMs in 1954 to 8.3 million AUMs in 2014.
64) Without access to land suitable for multiple uses and a sustained yield, agricultural proprietors will have to limit or shut down their operations, significantly reducing Beaver County's tax base. Agriculture has always been, and continues to be, a key industry to Beaver County's economy. Earnings from agricultural labor in Beaver County totaled $23, 003, 000 in 2015, representing 14.3 percent of all labor earnings in [the] County.
65) While the full economic impact of the existence of wild horses in excess of the AMLs has yet to be analyzed, one case study indicated that the yearly opportunity cost (i.e. the loss of potential gain) for each wild horse above the median of the AML range is $1, 900. Currently, there are approximately 100 to 200 excess wild horses on the Sulphur HMA. Using the figure from the case study, the opportunity costs of the excess wild horses currently in the HMA is between $190, 000 and $380, 000. If the BLM returns 400 more excess wild horses, the opportunity costs will be between $950, 000 and $1, 1140, 000[sic].
66) The excess wild horses and related depletion of forage and water resources infringes upon the rights of Beaver County citizens who hold grazing permits and leases to conduct livestock operations on private, state, and federal lands administered by the BLM. The excess wild horses impacts Beaver County's economy with the loss of the number of grazing permits allowed and the revenue the cattle producers and ranchers contribute to the County.
67) The excess wild horses also pose a significant risk to public health and safety as the overcrowding leads to wild horses escaping the boundaries of the Sulphur HMA and wandering onto private property and highways. The BLM indicated in a 2016 census that the number of wild horses spread ...

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