United States Court of Appeals, District of Columbia Circuit
January 11, 2017
from the United States District Court for the District of
Columbia (No. 1:14-cv-00485)
Zaft argued the cause for appellants. With him on the briefs
was William S. Eubanks II. Katherine A. Meyer entered an
R. Haag, Attorney, U.S. Department of Justice, argued the
cause for appellees. With him on the brief were John C.
Cruden, Assistant Attorney General at the time the brief was
filed, Meredith L. Flax and Stuart Gillespie, Attorneys, U.S.
Department of Justice, and Steven F. Hirsch,
Attorney-Advisor, U.S. Department of Agriculture.
Caroline Lobdell was on the brief for
Before: Tatel, Millett, and Wilkins, Circuit Judges.
Millett, Circuit Judge.
1975, the United States Forest Service has protected and
managed wild horses in the Devil's Garden section of the
Modoc National Forest in Northern California. That wild horse
territory originally consisted of two separate tracts of land
of roughly 236, 000 acres. But at some point in the 1980s, a
Forest Service map added in an approximately 23, 000 acre
tract of land known as the Middle Section and, in so doing,
linked the two territories into a larger and unified wild
horse territory of approximately 258, 000 acres. For more
than two decades, the Service continued to describe the
territory as a single contiguous area and to manage wild
horses in the Middle Section.
2013, the Forest Service publicly acknowledged the
cartographic confusion, declared the expansion reflected in
the 1980s map to be an administrative error, and without
further analysis redrew the wild horse territory's lines
to exclude the Middle Section and to revert to two disjoined
tracts of land. The American Wild Horse Preservation Campaign
and other plaintiffs filed suit alleging that the
Service's revamping of the territorial lines violated
numerous federal laws. We agree. A 23, 000 acre tract of land
and two decades of agency management cannot be swept under
the rug as a mere administrative mistake. We accordingly
reverse in part and remand for the Service to address rather
than to ignore the relevant history.
Modoc National Forest comprises approximately 1.6 million
acres of federally managed land in Northern California.
Included within the Forest are several hundred thousand acres
of protected wild horse land that make up the Devil's
Garden Wild Horse Territory. The Forest Service's
management of the Devil's Garden Wild Horse Territory is
subject to a Matryoshka doll of nesting federal statutes.
the Wild and Free-Roaming Horses and Burros Act of 1971
("Wild Horses Act"), 16 U.S.C. § 1331 et
seq., charges the Secretaries of Interior and
Agriculture with "protect[ing] and manag[ing] wild
free-roaming horses and burros" on federal lands,
id. § 1333(a). The Secretaries "may
designate and maintain specific ranges on public lands as
sanctuaries for their protection and preservation, " and
"shall manage wild free-roaming horses and burros in a
manner that is designed to achieve and maintain a thriving
natural ecological balance[.]" Id. The
Secretaries also "shall maintain a current
inventory" and set "appropriate management
levels" for "wild free-roaming horses and burros,
" to ensure a "thriving natural ecological
balance" and to "protect the range from the
deterioration associated with overpopulation."
Id. § 1333(b)(1), (2). Wild horses are to be
treated "in the area where presently found" as an
integral component "of the natural system of the public
lands." Id. § 1331.
Service is responsible for implementing the Wild Horses Act
within the National Forest System. 36 C.F.R. §
222.60(a). In 1980, the Service promulgated regulations
providing that it "shall: * * * [e]stablish wild horse
and burro territories" ("Wild Horse
Territories"), and then "[a]nalyze, "
"develop[, ] and implement a management plan" for
each Wild Horse Territory. Id. §
222.61(a)(3)-(4). The Service may "update" the
Wild Horse Territory Plans "whenever needed, as
determined by conditions on each territory."
Id. § 222.61(a)(4). The Service must also
"[m]aintain a current inventory of [wild horses] on each
[Wild Horse Territory] to determine * * * where excess
animals exist[, ]" id. § 222.61(a)(5), set
"appropriate management levels" for those horses
and burros, and "remov[e] or destr[oy] * * * excess
animals, " id. § 222.61(a)(6); see
also id. § 222.69.
regulations further define "[w]ild free-roaming horses
and burros" to mean "all unbranded and unclaimed
horses and burros and their progeny that" either
"have used lands of the National Forest System on or
after December 15, 1971, " or that "do hereafter
use these lands as all or part of their habitat." 36
C.F.R. § 222.60(b)(13). Those animals retain federal
protection even if they "move to lands of other
ownership or jurisdiction as a part of their annual
territorial habitat pattern or for other reasons."
Id. § 222.65.
the National Forest Management Act of 1976 ("Forest
Management Act"), 16 U.S.C. § 1600 et
seq., "requires the Secretary of Agriculture to
'develop, maintain, and, as appropriate, revise land and
resource management plans for units of the National Forest
System.'" Ohio Forestry Ass'n v. Sierra
Club, 523 U.S. 726, 728 (1998) (quoting 16 U.S.C. §
1604(a)). The Secretary has delegated his authority under the
Act to the Service. 36 C.F.R. § 200.3(b).
Forest Management Act establishes a two-step procedure for
managing National Forest System lands. The Service must (i)
"develop, maintain, and, as appropriate, revise land and
resource management plans" for national forests
("Forest Plans"), and (ii) ensure that all
"[r]esource plans and permits, contracts, and other
instruments for the use and occupancy of National Forest
System lands, " including Wild Horse Territory Plans,
are "consistent with the [Forest Plans]." 16 U.S.C.
§ 1604(a), (i).
Forest Management Act sets out several general conditions
with which the development of Forest Plans must comply.
See 16 U.S.C. § 1604(f). For instance, the
Service must "provide for public participation in the
development, review, and revision of [Forest Plans]."
Id. § 1604(d). In addition, the Plans must
"be embodied in appropriate written material, including
maps and other descriptive documents, " id.
§ 1604(f)(2), and "be prepared by an
interdisciplinary team, " id. §
1604(f)(3). The Forest Service may amend Forest Plans
"in any manner whatsoever after final adoption[.]"
Montanans for Multiple Use v. Barbouletos, 568 F.3d
225, 227 (D.C. Cir. 2009) (quoting 16 U.S.C. §
1604(f)(4)); see also 36 C.F.R. § 219.13(a).
But if an "amendment" of a Forest Plan "would
result in a significant change, " the amendment process
must comply with heightened procedural requirements.
See 16 U.S.C. § 1604(f)(4). Regardless of
whether an amendment is significant, however, the Forest
Service must allow for public participation in the amendment
regulations elaborate upon the procedures for developing and
amending Forest Plans. 36 C.F.R. §§ 219.1- 219.19.
As relevant here, the Service must develop Forest Plans in
coordination with the statutorily required interdisciplinary
team, extensive public participation and comment, and related
efforts of other federal agencies, state and local
governments, and Indian tribes. Id. §§
219.4, 219.5. Formulation of such Plans must take into
consideration, inter alia, "fish and wildlife
species, " "grazing and rangelands, "
"habitat and habitat connectivity, "
"[h]abitat conditions, " and "[l]and status
and ownership, use, and access patterns relevant to the
[Forest Plan] area." Id. § 219.10(a). The
Plan must also "maintain the diversity of plant and
animal communities" within the forest. Id.
the National Environmental Policy Act ("NEPA"), 42
U.S.C. § 4321 et seq., obligates federal
agencies to analyze the environmental consequences of
proposed federal actions. See generally id. §
4332. Under NEPA, federal agencies must conduct an
Environmental Assessment to determine whether a proposed
federal action will have a significant effect on the
environment. 40 C.F.R. §§ 1508.9(a), 1508.13. If
that Assessment indicates that the environmental impacts will
not be significant, the agency must issue a "finding of
no significant impact, " id. § 1501.4(e),
explaining why the agency action will not substantially
affect the environment, id. § 1508.13. But if
the Assessment indicates that the proposed action will
"significantly affect the quality of the human
environment, " the agency must prepare an Environmental
Impact Statement detailing: "(i) the environmental
impact of the proposed action, (ii) any adverse environmental
effects which cannot be avoided should the proposal be
implemented, (iii) alternatives to the proposed action, (iv)
the relationship between local short-term uses of [the]
environment and the maintenance and enhancement of long-term
productivity, and (v) any irreversible and irretrievable
commitments of resources which would be involved in the
proposed action should it be implemented." 42 U.S.C.
§ 4332(C); see also 40 C.F.R. § 1502.2.
the Administrative Procedure Act, 5 U.S.C. § 551 et
seq., prohibits arbitrary and capricious actions by
federal agencies and mandates that they give reasoned
explanation for the actions that they do take. See,
e.g., Motor Vehicle Mfrs. Ass'n v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42-52 (1983);
see also Public Citizen, Inc. v. FAA, 988 F.2d 186,
197 (D.C. Cir. 1993) ("The requirement that agency
action not be arbitrary or capricious includes a requirement
that the agency adequately explain its result[.]").
this dispute concerns a 2013 decision by the Service to
change the boundaries of the Devil's Garden Wild Horse
Territory, the origins of the controversy reach back four
1975, the Service issued its first Devil's Garden Wild
Horse Territory Plan. The Wild Horse Territory specified in
that plan consisted of two separate areas of land totaling
approximately 236, 000 acres. The Territory did not include a
parcel of land of approximately 23, 000 acres, known as the
Middle Section, which conjoined those two separate tracts.
in the 1980s, a Forest Service map depicted the Devil's
Garden Wild Horse Territory as a single contiguous area of
land that included the Middle Section. According to the
Service, the map's "revised boundary"
"incorporated about another 23, 631 acres of land,
" resulting in a Wild Horse Territory of
"approximately 258, 000 acres in size." J.A. 261.
in 1991, the Service issued a Forest Plan for the Modoc
National Forest. While the Plan did not include a map of the
Wild Horse Territory, the Forest Plan acknowledged that the
Service "is legally obligated to manage horses within a
258, 000-acre wild horse territory, " J.A. 584, and
announced that "[t]he Forest has one wild horse
territory of about 258, 000 acres, " J.A. 585.
1991 Forest Plan also stated that the Service "prepared
the Wild Horse [Territory] Plan in 1985, which identifies a
population objective of 275-335 animals to manage." J.A.
585-586. The interdisciplinary team
that prepared the 1991 Forest Plan expressly denominated the
"Wild Horse [Territory] Plan" to be
"consistent with, and still appropriate for, the 
Forest Plan." J.A. 578. As a result, the Wild Horse
Territory Plan, which the interdisciplinary team understood
to include a single 258, 000 acre territory, was expressly
"incorporated by reference" into the 1991 Forest
Plan. J.A. 578; see also J.A. 588 (describing
"Wild Horse [Territory] Plan" as an
"[e]xisting [p]lan [r]etained and [i]ncorporated by
[r]eference into the  Forest Plan and [u]pdated to
be [c]onsistent") (emphasis added). When the 1991
Forest Plan was finally approved, it "supersede[d] most
previous Forest resource management plans." J.A. 578.
the next two decades, the Service actively managed and
recorded wild horses in the Middle Section, as evidenced by
official Wild Horse Inventory Reports from that time period.
Modoc National Forest is divided into grazing
"allotments." Generally speaking, the Wild Horse
Territory boundaries do not hew precisely to those of the
grazing allotments. Rather, the Wild Horse Territory covers
portions of various allotments. The disputed Middle Section
consists of portions of five allotments: the Triangle,
Avanzino, Carr, Timbered Mountain, and Big Sage Allotments.
In 1971, when the Wild Horses Act was adopted, two portions
of allotments in the Middle Section were privately held: the
Triangle portion, and the Avanzino portion. In total, those
private lands covered approximately 5, 923 acres. The other
portions-the Carr, Timbered Mountain, and Big Sage
portions-were publicly held in 1971. Consequently, as
stipulated by the Service, the "majority of the lands in
the [Middle Section] were publicly held in 1971[.]" J.A.
1976, the Service acquired the Triangle Allotment as public
land. That means that, in 1991, when the Service adopted the
Forest Plan that included the Middle Section in the Wild
Horse Territory, only one portion of the Middle Section was
privately held: the Avanzino portion. That ...