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American Wild Horse Preservation Campaign v. Perdue

United States Court of Appeals, District of Columbia Circuit

August 4, 2017

American Wild Horse Preservation Campaign, et al., Appellants
Sonny Perdue, Secretary, U.S. Department of Agriculture, et al., Appellees

          Argued January 11, 2017

         Appeal from the United States District Court for the District of Columbia (No. 1:14-cv-00485)

          David Zaft argued the cause for appellants. With him on the briefs was William S. Eubanks II. Katherine A. Meyer entered an appearance.

          Mark 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 defendants-intervenors-appellees.

          Before: Tatel, Millett, and Wilkins, Circuit Judges.


          Millett, Circuit Judge.

         Since 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.

         In 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.


         The 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.

         First, 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.

         The 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.

         Service 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.

         Second, 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).

         The 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).

         The 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 process. Id.

         Service 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. § 219.9.

         Third, 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.

         Fourth, 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[.]").


         While 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 decades.


         In 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.

         Sometime 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.

         Then, 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.

         The 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.[1] 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 [1991] 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 [1991] 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.

         Over 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.


         The 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. 66.

         In 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 ...

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