De 43 - Government MTN To Dismiss, 6.24.14

SAM HIRSCH,
Acting Assistant Attorney General

SETH M. BARSKY, Chief
S. J AY GOVINDAN, Assistant Chief
TRAVIS ANNATOYN, Trial Attorney
U.S. Department of J ustice
Environment and Natural Resources Division
Wildlife and Marine Resources Section
Ben Franklin Station, P.O. Box 7611
Washington, D.C. 20044-7611
(202) 514-5243 (tel)
(202) 305-0275 (fax)

Attorneys for Federal Defendants

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

NEVADA ASSOCIATION OF
COUNTIES, et al.

Plaintiffs,

v.

UNITED STATES DEPARTMENT OF
THE INTERIOR, et al.

Defendants.
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CASE NO. 3:13-cv-712-MMD-WGC

MOTION TO DISMISS AND
MEMORANDUM IN SUPPORT

Case 3:13-cv-00712-MMD-WGC Document 43 Filed 06/24/14 Page 1 of 23
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TABLE OF CONTENTS
PAGE
INTRODUCTION .......................................................................................................................... 1
BACKGROUND ............................................................................................................................ 2
I. STATUTORY BACKGROUND ........................................................................................ 2
a. The Wild Free-Roaming Horses and Burros Act ........................................................ 2
b. The Administrative Procedure Act ............................................................................. 4
II. RECENT MANAGEMENT OF WILD HORSES IN NEVADA ....................................... 5
STANDARD OF REVIEW ............................................................................................................ 6
ARGUMENT .................................................................................................................................. 7
A. Plaintiffs Amended Complaint is a Non-J usticiable Programmatic
Challenge ........................................................................................................................ 7

B. The Duties Described by Plaintiffs Do Not Supply a Basis for
Relief ............................................................................................................................. 12

i. Plaintiffs References to a State-Wide Inventory of Wild Horses
Do Not Challenge Final Agency Action ................................................................... 12

ii. Supreme Court Precedent Precludes Plaintiffs Challenges to BLMs
Maintenance of an Ecological Balance in Nevada ................................................ 14

iii. Plaintiffs Have Not Challenged Final Agency Action Related to BLMs
Use of Long-Term Holding Facilities ....................................................................... 14

C. Plaintiffs Second and Third Claims Are Duplicative .................................................. 16

D. Plaintiffs Procedural Due Process Arguments Do Not State a Valid
Claim for Relief ............................................................................................................ 16

CONCLUSION ............................................................................................................................. 17

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TABLE OF AUTHORITIES
CASES PAGE
A.E. ex rel. Hernandez v. Cnty. of Tulare, 666 F.3d 631 (9th Cir. 2012) ...................................... 7

Am. Horse Prot. Ass'n v. Watt, 694 F.2d 1310 (D.C. Cir. 1982) ................................................... 2

Ashcroft v. Iqbal, 556 U.S. 662 (2009)........................................................................................... 6

Bell Atl. Corp v. Twombly, 550 U.S. 544 (2007) .......................................................................... 6

Bennett v. Speak, 520 U.S. 154 (1997)......................................................................................... 13

Blake v. Babbitt, 837 F. Supp. 458 (D.D.C. 1993) ..................................................................... 2, 3

Bradshaw v. United States, 47 Fed. Cl. 549 (Fed. Cl. 2000) ........................................................ 17

Christy v. Hodel, 857 F.2d 1324 (9th Cir. 1988) .......................................................................... 16

Colvin Cattle Co. v. United States, 468 F.3d 803 (Fed. Cir. 2006) .............................................. 17

Conservation Force v. Salazar, 646 F.3d 1240 (9th Cir. 2011) ...................................................... 7

Ctr. for Biological Diversity v. Veneman, 394 F.3d 1108 (9th Cir. 2005) ................................... 11

Def. of Animals v. U.S. Dep't of Interior, 2014 WL 1876986 ................................................. 5, 15

Def. of Animals v. U.S. Dep't of Interior,
909 F. Supp. 2d 1178 (E.D. Cal. 2012) ..................................................................................... 15

Fallini v. United States, 56 F.3d 1378 (Fed. Cir. 1995) ................................................................ 17

Fund for Animals v. BLM, 460 F.3d 13 (D.C. Cir. 2006) .......................................................... 3, 9

Habitat for Horses v. Salazar,
2011 WL 4343306 (S.D.N.Y. Sept. 7, 2011) ......................................................................... 9, 10

Leigh v. Salazar, 2013 WL 1249824 (D. Nev. March 26, 2013).................................................. 16

Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871 (1990) ................................................................ 4, 7, 8

Medtronic, Inc. v. Mirowski Family Ventures, LLC,
134 S. Ct. 843 (2014) ................................................................................................................. 16

Moss v. U.S. Secret Serv., 572 F.3d 962 (9th Cir. 2009) ............................................................... 7
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Mountain States Legal Found. v. Hodel, 799 F.2d 1423 (10th Cir. 1986) ................................... 17

Natural Res. Def. Council v. Hodel,
624 F. Supp. 1045 (D. Nev. 1985) ............................................................................................. 12

Navarro v. Block, 250 F.3d 729 (9th Cir. 2001) ............................................................................. 6

Norton v. S. Utah Wilderness Alliance, 542 U.S. 55 (2004) ................................................. passim

Or. Natural Desert Ass'n v. U.S. Forest Serv., 465 F.3d 977 (9th Cir. 2006) ............................... 13

Sierra Club v. Peterson, 228 F.3d 559 (5th Cir. 2000) (en banc) ................................................... 9

Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667 (1950) ................................................... 16

Summers v. Earth Island Inst., 555 U.S. 488 (2009) .................................................................... 15

United States ex rel. Lee v. Corinthian Colls., 655 F.3d 984 (9th Cir. 2011) ................................ 6

Wild Fish Conservancy v. J ewell, 730 F.3d 791 (9th Cir. 2013) ................................................. 10

Wild Horse Observers Ass'n v. J ewell, 550 F. App'x 683 (10th Cir. 2013) ................................. 12

STATUTES
5 U.S.C. 551(4) ............................................................................................................................ 5
5 U.S.C. 551(13) .................................................................................................................... 4, 13
5 U.S.C. 702 ................................................................................................................................. 4
5 U.S.C. 704 ........................................................................................................................... 1, 13
5 U.S.C. 706(1) ............................................................................................................................ 8
16 U.S.C. 1331 ............................................................................................................................. 2
16 U.S.C. 1332(f) ......................................................................................................................... 3
16 U.S.C. 1333(a) ........................................................................................................................ 3
16 U.S.C. 1333(b) ...................................................................................................................... 13
16 U.S.C. 1333(b)(1) ............................................................................................................. 3, 12
16 U.S.C. 1333(b)(2) ......................................................................................................... 3, 4, 14
16 U.S.C. 1333(b)(2) ................................................................................................................... 3
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28 U.S.C. 2201-02 ..................................................................................................................... 16
28 U.S.C. 2401(a) ...................................................................................................................... 12
43 U.S.C. 1732(a) ........................................................................................................................ 2
43 U.S.C. 1782(c) ........................................................................................................................ 8

FEDERAL REGULATIONS

Fed. R. Civ. P. 8(a) ..................................................................................................................... 6, 7

Fed. R. Civ. P. 12(b)(6)............................................................................................................... 6, 7

43 C.F.R. 4700.0-5(d) .................................................................................................................. 4

43 C.F.R. 4710.3-1 ....................................................................................................................... 3

43 C.F.R. 4710.4 .......................................................................................................................... 4

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INTRODUCTION
By passing and later amending the Wild Free-Roaming Horses and Burros Act, Congress
commanded the Department of the Interior, acting through the Bureau of Land Management
(BLM), to both protect populations of wild horses and to manage the species overpopulation.
In particular, BLM is obligated to remove excess wild horses from public lands, and then to
adopt, sell, or humanely destroy those horses. But even as populations of wild horses have risen
nationwide, Congress has curtailed many of the tools that might prevent and mitigate any
deleterious effects of the species on local resources. Specifically, Congress has decreased
funding available to BLM for horse management thereby limiting BLMs capacity to remove
excess horses even as it has forbidden BLM from humanely destroying excess horses stored in
BLMs long-term holding faculties. Because BLM is obligated to care for these horses, funds
available for range-management are even more limited than is readily apparent, and populations
of wild horses have grown accordingly. Both federal and independent observers have noted that
this population growth may strain resources located or dependant on public lands, including
those in Nevada.
Plaintiffs amended complaint alleges precisely such an effect and requests that the Court
remedy matters by assuming wholesale control over BLMs management of wild horses in
Nevada.
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1
Because Defendant-Intervenors filed a motion to dismiss Plaintiffs original complaint on May
29, 2014, Plaintiff amended its pleadings as matter of course under Fed. R. Civ. P. 15(1)(B) on
J une 17, 2014, styling its submission as a motion to amend rather than as an amended
complaint. See ECF No. 42 at 2. The arguments presented below apply equally to both
complaints.
But while it is a matter of public debate whether and to what extent wild horse
populations affect public lands throughout the Nevada, it is beyond question that Plaintiffs
lawsuit is not amenable to resolution by a federal court. Plaintiffs bring their suit under the
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Administrative Procedure Act (APA), which waives the sovereign immunity of the United
States only for challenges to discrete, final agency action. 5 U.S.C. 704. Rather than
challenge any such action, Plaintiffs have simply directed their amended complaint against the
sum of BLMs managerial actions throughout the state of Nevada. Thus, Plaintiffs request that
the Court assume the role of rangemaster for the entire state, overseeing literally hundreds of
horse-inventories and a massive program to gather and somehow dispose of thousands of horses.
As the breadth of this request suggests, Plaintiffs disagreement with BLM does not merely fall
outside the APAs cause-of-action, but has been expressly labeled as nonjusticiable by the
United States Supreme Court. Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 62 (2004)
(SUWA). Accordingly, the Court must dismiss Plaintiffs amended complaint under Fed. R.
Civ. P. 12(b)(6): even assuming the truth of Plaintiffs allegations concerning the impact of wild
horses (an issue not before the Court in this motion) Plaintiffs proper recourse is not with an
Article III court, but through petitions to Congress and the Executive.
BACKGROUND
I. STATUTORY BACKGROUND
a. The Wild Free-Roaming Horses and Burros Act
BLM manage[s] the public lands under principles of multiple use and sustained yield.
43 U.S.C. 1732(a). Since the Wild Free-Roaming Horses and Burros Act (Wild Horse Act)
was passed in 1971, this responsibility has included oversight and management of wild horses
and burros on public lands. See 16 U.S.C. 1331 et seq. Responding to declining numbers of
wild horses, Congress passed the Wild Horse Act in 1971 to provide for the animals protection
and management. 16 U.S.C. 1331. Within only a few years, however, the situation had
reversed itself, and action [was] needed to prevent a successful program from exceeding its
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goals and causing animal habitat destruction. Am. Horse Prot. Assn v. Watt, 694 F.2d 1310,
1316 (D.C. Cir. 1982) (quoting H.R. Rep. No. 95-1122 at 1-2 (1978)); see also Blake v. Babbitt,
837 F. Supp. 458, 459 (D.D.C. 1993) ([e]xcess numbers of horses and burros pose a threat to
wildlife, livestock, the improvement of range conditions, and ultimately [the horses
themselves]) (citation omitted)). Accordingly, in 1978, Congress passed amendments to the
Wild Horse Act, providing the Secretary with greater authority and discretion to manage and
remove wild horses from the rangeland. Id.
The Wild Horse Act grants the Secretaries of the Interior and Agriculture jurisdiction
over all wild free-roaming horses and burros on public lands, and directs the Secretaries to
manage wild free-roaming horses and burros in a manner that is designed to achieve and
maintain a thriving natural ecological balance on those lands. 16 U.S.C. 1333(a); see also
Fund for Animals v. BLM, 460 F.3d 13, 15 (D.C. Cir. 2006). In particular, the Secretaries are
prohibited from allowing the range to deteriorate from an overpopulation of wild horses. See 16
U.S.C. 1333(b)(2).

BLM, as the Secretary of the Interiors delegate, carries out this function in
localized Herd Management Areas (HMAs). 16 U.S.C. 1333(b)(2), (c); 43 C.F.R.
4710.3-1. Fund for Animals, 460 F.3d at 15.
In each herd management area, BLM officials possess significant discretion to determine
appropriate management levels (AMLs) for the local wild horse and burro populations. 16
U.S.C. 1333(b)(1). BLM typically uses an AML range bounded by a low AML and a
high AML for each HMA. When wild horses on an HMA exceed the high AML and must
be removed to protect the range, BLM conducts a gather to remove the excess horses. Even
where wild horse populations do not exceed high AML, BLM is obliged to remove horses when
populations exceed the carrying capacity of the range, or when wild horses stray outside of a
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designated herd management area. See 16 U.S.C. 1332(f) (defining excess animals as wild
free-roaming horses or burros (1) which have been removed from an area by the Secretary
pursuant to applicable law or, (2) which must be removed from an area in order to preserve and
maintain a thriving natural ecological balance and multiple-use relationship in that area); 43
C.F.R. 4710.4 (management of wild horses shall be undertaken with the objective of limiting
the animals distribution to herd areas); 43 C.F.R. 4700.0-5(d) (herd areas are the geographic
area identified as having been used by a herd as its habitat in 1971).
Once BLM has determined that an overpopulation exists on a given area of the public
lands and that action is necessary to remove excess animals, [BLM] shall immediately remove
excess animals from the range so as to achieve appropriate management levels. 16 U.S.C.
1333(b)(2). Following capture, BLM must provide excess horses for adoption or sale, and must
cause additional horses to be destroyed in the most humane and cost efficient manner
possible. Id. at 1333(b)(2)(B)-(C).
b. The Administrative Procedure Act
Plaintiffs bring their challenge under the APA, which provides that [a] person suffering
legal wrong because of agency action, or adversely affected or aggrieved by agency action
within the meaning of a relevant statute, is entitled to judicial review thereof. 5 U.S.C. 702.
Thus, plaintiffs must identify some agency action that affects [them] in the specified fashion;
it is judicial review thereof to which [they are] entitled. Lujan v. Natl Wildlife Fedn, 497
U.S. 871, 882 (1990) (NWF). Not every agency activity is an agency action under the APA.
Rather, agency action is limited to the whole or a part of an agency rule, order, license,
sanction, relief, or the equivalent or denial thereof, or failure to act. 5 U.S.C. 551(13). A
failure to act is merely a failure to take one of the agency actions (including their equivalents)
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earlier defined in 551(13). SUWA, 542 U.S. at 62. All of those categories involve
circumscribed, discrete agency actions, as their definitions make clear. Id. at 63 (emphasis
added); see 5 U.S.C. 551(4) (defining rule), (6) (order), (8) (license), 10 (sanction),
(11) (relief).
II. RECENT MANAGEMENT OF WILD HORSES IN NEVADA
Over the past two decades, BLM has encountered several challenges in its efforts to
implement the Wild Horse Act. Other than a brief interval between 2004 and 2008, for instance,
Congress has prohibited the use of appropriated funds for the destruction of healthy, excess
horses. In Def. of Animals v. U.S. Dept of Interior, -- F.3d --, NO. 12-17804, 2014 WL
1876986, at *1 and n.3 (9th Cir. May 12, 2014). Accordingly, BLM has been largely unable to
dispose of excess horses other than through qualifying adoptions and sales, even as demand for
the horses has declined. Id. at *8 and n.20. Assessing congressional limitations on the
disposition of excess horses, the Government Accountability Office determined in 2008 that
BLMs capacity to manage wild horse populations would be increasingly limited by the cost of
holding captured animals for adoption, since supply for horses far outstripped demand.
2
In addition to the increasing fiscal strain on BLM caused by long-term holding of excess
horses, the Department of the Interiors Inspector General reported in 2010 that, absent gathers
and other population control measures, the number of wild horses on public lands would grow
exponentially, eventually degrading the environment and hindering attempts to implement

2
See GAO Report to the Chairman, Cmty. on Natural Res., Rpt. No. 09-77, BLM Effective
Long-Term Options Needed to Manage Unadopted Wild Horses (Oct. 2008), available at
www.gao.gov/new.items/d0977.pdf (last visited J une 19, 2014).
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multiple-use strategies.
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Most recently, the National Academy of Sciences conducted a
comprehensive review of the Wild Horse Program, concluding that BLM has likely
underestimated the total number of horses on public lands, and recommending that BLM gather
fewer horses as one means of slowing population growth.
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STANDARD OF REVIEW

A motion to dismiss under Fed. R. Civ. P. 12(b)(6) tests the legal sufficiency of a
claim. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). 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) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). Iqbal explained that the pleading requirement of Fed. R.
Civ. P. 8(a) demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation. 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). The plausibility standard is
not akin to a probability requirement, but it asks for more than a sheer possibility that a
defendant has acted unlawfully. 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556). A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged. Id. (citing
Twombly, 550 U.S. at 556). Thus, a pleading that offers labels and conclusions or a
formulaic recitation of the elements of a cause of action is insufficient to state a claim under
Rule 8 of the Federal Rules of Civil Procedure. Id. (quoting Twombly, 550 U.S. at 555).

3
See Office of the Inspector General, Rpt. No. C-IS-BLM-0018-2010, BLM Wild Horse and
Burro Program (Dec. 2010), available at http://www.doi.gov/oig/reports/upload/C-IS-BLM-
0018-2010.pdf. (last visited J une 19, 2014).
4
See Using Science to Improve the BLM Wild Horse and Burro Program: A Way Forward
(2013), available at http://dels.nas.edu/Report/Using-Science-Improve/13511 (last visited J une
19, 2014).
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The Ninth Circuit has directed rigorous compliance with these standards. A district court
must determine whether the complaint itself contains sufficient factual matter that, taken as
true, state[s] a claim for relief . . . plausible on its face. United States ex rel. Lee v. Corinthian
Colls., 655 F.3d 984, 991 (9th Cir. 2011) (internal quotation marks and citation omitted). See
also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). If there is a lack of a
cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal
theory, the court must dismiss the complaint under Fed. R. Civ. P. 12(b)(6) for failing to meet
the requirements of Fed. R. Civ. P. 8(a). Conservation Force v. Salazar, 646 F.3d 1240, 1242
(9th Cir. 2011) (internal quotation marks and citation omitted). SeeA.E. ex rel. Hernandez v.
Cnty. of Tulare, 666 F.3d 631, 637 (9th Cir. 2012).
ARGUMENT
I. PLAINTIFFS AMENDED COMPLAINT MUST BE DISMISSED IN ITS
ENTIRETY

A. Plaintiffs Amended Complaint is a Non-Justiciable Programmatic Challenge

The Court must dismiss Plaintiffs first claim for relief because the claim fails to
challenge any agency action much less a final agency action within the meaning of the
APA. Instead, the claim challenges an alleged pattern and practice of conduct, which is not
subject to judicial review. SUWA, 542 U.S. at 64; NWF, 497 U.S. at 882.
In NWF, the Supreme Court held that the APAs requirement of a discrete final agency
action precludes general judicial review of [an agencys] day-to-day operations. 497 U.S. at
899. The plaintiff in NWF alleged that BLM had violated the National Environmental Policy
Act (NEPA) and the Federal Land Policy and Management Act (FLPMA) by reclassifying
public lands that were previously withdrawn from mineral leasing and mining activities. The
plaintiff dubbed this practice consisting of 1,250 individual land classifications and withdrawal
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revocations, including some that had not yet occurred the land withdrawal review program.
In an effort to demonstrate standing, plaintiffs members submitted six affidavits alleging harm
from particular land status determinations. 497 U.S. at 880-81, 885-86.
The Supreme Court held that it was impossible for the affidavits to enable the plaintiff
to challenge the land withdrawal review program because the program was not an agency
action within the meaning of the APA. Id. at 890. The Court also made clear that even if one
land status determination was a final agency action, the plaintiff could not predicate its
sweeping programmatic challenge on that single action. Id. at 892-93. Rather, under the terms
of the APA, a plaintiff must direct its attack against some particular agency action that causes
it harm. Id. at 891.
The Supreme Court reaffirmed the APAs bar on programmatic challenges in SUWA.
The environmental groups in SUWA alleged that BLM had violated FLPMAs mandate to
manage certain wilderness study areas in a manner so as not to impair the suitability of such
areas for preservation as wilderness, 43 U.S.C. 1782(c), and thus sought to compel agency
action unlawfully withheld or unreasonably delayed under the APA. 5 U.S.C. 706(1). The
Supreme Court held that the plaintiffs claims did not fall within the scope of Section 706(1)
because a claim under [that section] can proceed only where a plaintiff asserts that an agency
failed to take a discrete agency action that it is required to take. SUWA, 542 U.S. at 64. The
important point in this conclusion is that a failure to act is properly understood to be limited,
as are the other items in 551(13), to a discrete action. Id. at 63. The Court made clear that
[t]he limitation to discrete agency action precludes the kind of broad programmatic attack [the
Court] rejected in [NWF]. Id. at 64. Thus, the plaintiff in NWF would have fared no better if
[it] had characterized the agencys alleged failure to revise land use plans in proper fashion and
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failure to consider multiple use . . . in terms of agency action unlawfully withheld under
706(1), rather than agency action not in accordance with law under 706(2). Id. at 65.
The Court explained that the APAs limitations not only protect agencies from undue
judicial interference, but also protect courts from entering general orders compelling
compliance with broad statutory mandates that would inject[] the judge into day-to-day agency
management. Id. at 66-67. The APAs programmatic challenge bar is motivated by
institutional limits on courts which constrain [their] review to narrow and concrete actual
controversies. Sierra Club v. Peterson, 228 F.3d 559, 566 (5th Cir. 2000) (en banc).
Particularly relevant for this case, the Court in SUWA observed:
To take just a few examples from federal resources management, a plaintiff might
allege that the Secretary had failed to manage wild free-roaming horses and
burros in a manner that is designed to achieve and maintain a thriving natural
ecological balance, or to manage the [New Orleans J azz National] [H]istorical
[P]ark in such a manner as will preserve and perpetuate knowledge and
understanding of the history of jazz, or to manage the [Steens Mountain]
Cooperative Management and Protection Area for the benefit of present and
future generations. The prospect of pervasive oversight by federal courts over the
manner and pace of agency compliance with such congressional directives is not
contemplated by the APA.

542 U.S. at 67 (emphasis added, internal citations omitted).
Under SUWA and NWF, challenges to BLMs general management of horses over a
state or region are non-justiciable. See Fund for Animals, 460 F.3d at 20-21. In Fund for
Animals, Plaintiffs challenged BLMs national proposal for managing acutely overpopulated
HMAs, a strategy that included several accelerated gathers and alternatives to horse adoption.
460 F.3d at 20. The court dismissed Plaintiffs claims under NWF and SUWA, noting that
while individual roundups might qualify as final agency action for purposes of an APA
challenge, BLMs proposed strategy did not, since the strategy represents the sum of many
individual actions, including some yet to be taken. Id. at 20-21 (internal quotation marks and
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citation omitted). See also Habitat for Horses v. Salazar, NO. 10 CIV. 7684 WHP, 2011 WL
4343306, at *5 (S.D.N.Y. Sept. 7, 2011) (dismissing wild-horse related challenges to actions
described by plaintiffs as a years-long practice of violating . . . FLPMA and a pattern and
practice of intentionally relying on information of insufficient quality).
Here, Plaintiffs have alleged precisely the type of sweeping programmatic challenge
prohibited by NWF, SUWA, and Fund for Animals. Plaintiffs amended complaint seeks
nothing less than wholesale judicial management of BLMs entire wild horse program in
Nevada, alleging essentially that the agency has neglected to manage horses on a statewide level.
See, e.g., Am. Compl., ECF No. 42-1, 9(a) (alleging that unlawful conditions exist in the
State of Nevada); id. at 44 (alleging a problem in compliance . . . in Nevada); id. at 44-45
(describing excess horse-populations not with reference to individual HMAs but to Nevada);
id. at 60 (arguing that BLMs alleged failures create hazards . . . in Nevada); id. at 64
(Failure to comply damages both the Plaintiffs hereto as well as the lands, wildlife, vegetation,
and other resource conditions as well as the people of Nevada); id. at 68 (alleging that BLM
is obligated to consider and protect vital components of the economy of Nevada and its
counties).
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5
See also Compl. 9(b) (the State of Nevada and the Counties therein . . . have suffered adverse
impacts); id. at 61 (describing deterioration of . . . conditions within Nevada); id. at 67
(alleging impacts to the creation and maintenance of jobs in Nevada).

In so doing, Plaintiffs have not identified much less challenged a discrete agency
action or a failure to take a discrete action that might properly be the subject of an APA
challenge. Instead, Plaintiffs amended complaint challenges the infinite set of all BLM actions
pertaining to management of wild horses in Nevada: while the amended complaint purports to
challenge certain categories of agency determinations, it ultimately declines to attack any
specific determination that would qualify as a final agency action under the APA. Id. 80.
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Plaintiffs failure to challenge any final agency actions requires that their APA claim be
dismissed. See Wild Fish Conservancy v. J ewell, 730 F.3d 791, 801 (9th Cir. 2013) (dismissing
vague challenge to Defendants operation of two dams); Ctr. for Biological Diversity v.
Veneman, 394 F.3d 1108, 1111-13 (9th Cir. 2005) (allegation that United States Forest Service
failed to consider classification of 57 rivers in Arizona did not challenge final agency action).
Any doubt concerning the programmatic nature of Plaintiffs claims is eliminated by its
sweeping prayer for relief. Plaintiffs do not seek to redress any particularized injury resulting
from a discrete final agency action, but instead request an injunction requiring Defendants to
promptly and fully comply with all the provisions of the [Wild Horse Act]. Am. Compl. at 94.
See also id. at 94(e) (requesting that the Court order BLM to generally comply with multiple
use principles). Similarly, Plaintiffs request that the Court impose and enforce compliance
with an idealized strategy for wild-horse management throughout Nevada, a program involving
bi-monthly inventories and horse-gathers, in addition to the disposition of thousands of animals
in long-term holding facilitates. Plaintiffs requested order would require the Court to oversee
and manage an enormous, resource-intensive, and protracted campaign of horse management
across the state. Specifically, the Court would be required to oversee at least 500 inventories of
HMAs each year (or roughly 10 per week).
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6
Plaintiffs proposed order seeks a statewide inventory of horses no less frequently than once
every two months. Am. Compl. 94(b) As there are 85 HMAs in Nevada, a bimonthly
inventory would require 510 individual inventories each year.
Because BLM would be unable to dispose of the
gathered horses save through adoption or qualified sales, this campaign would lead to an
unsustainable increase in the horses placed in long-term holding.

12

In short, there is no question that Plaintiffs requests for relief are precisely the kind of
general orders compelling compliance with broad statutory mandates that the Court is not
empowered to issue. SUWA, 542 U.S. at 66-67. Accordingly, the Court should decline
Plaintiffs invitation to become rangemaster for hundreds of thousands of acres of federal
lands in Nevada, a role that would be incompatible with the Courts Article III duty to resolve
only particular Cases and Controversies. Natural Res. Def. Council v. Hodel, 624 F. Supp.
1045, 1062 (D. Nev. 1985), affd, 819 F.2d 927 (9th Cir. 1987).
B. The Duties Described by Plaintiffs Do Not Supply a Basis for Relief

As shown above, Plaintiffs amended complaint is essentially a programmatic challenge
to BLMs management of wild horses in Nevada that does not fall within the APAs narrow
waiver of sovereign immunity. Plaintiffs ability to invoke certain duties imposed by the Wild
Horse Act does not change this analysis, since Plaintiffs must allege that these duties impose a
discrete, mandatory obligation left unfulfilled by Defendants. For the reasons below, each of
Plaintiffs named duties fails this test.
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i. Plaintiffs References to a State-Wide Inventory of Wild Horses Do
Not Challenge Final Agency Action

The Wild Horse Act provides that BLM shall maintain a current inventory of wild free-
roaming horses and burros on given areas of the public lands, 16 U.S.C. 1333(b)(1), and
further provides that BLM shall immediately remove excess animals as determined by

7
Even were Plaintiffs statewide-challenges cognizable, they would be time-barred. See Wild
Horse Observers Assn v. J ewell, 550 F. Appx 638 (10th Cir. 2013) (holding that failure-to-
inventory claim, filed in 2011, was time-barred where plaintiff had actual knowledge of its
alleged injury in 2002), pet. for cert. filed, No. 13-1385 (May 16, 2014). Given that Plaintiffs
allege problems with BLMs management dating back to at least 1982, Am. Compl. 42, it is
clear that this suit could have been brought at least six years ago, and is therefore barred under
the six-year statute of limitations in 28 U.S.C. 2401(a).
13

inventories and threat to the range, id. at 1333(b)(2). Plaintiffs allege that Defendants have
failed to conduct and maintain an accurate, scientifically-based inventory of wild horses and
burros and to utilize scientific information in free roaming horse and burro management. Am.
Compl. 32-34.
For several reasons, the duties described in 16 U.S.C. 1333(b) do not provide a basis for
Plaintiffs challenge under the APA. First, inventories under the Wild Horse Act are not final
agency actions, and are therefore unreviewable under APA. See 5 U.S.C. 704 (Agency action
made reviewable by statute and final agency action for which there is no other adequate remedy
in a court are subject to judicial review.) (emphasis added). For an agency action to be final,
the action must (1) mark the consummation of the agencys decisionmaking process and (2) be
one by which rights or obligations have been determined, or from which legal consequences will
flow. Or. Natural Desert Assn v. U.S. Forest Serv., 465 F.3d 977, 982 (9th Cir. 2006)
(quoting Bennett v. Speak, 520 U.S. 154, 178 (1997)). Inventories of wild horses ordinarily have
no legal effect, but instead provide the basis for subsequent final agency actions that do fall
within the APAs definition of that term, namely individual gathers of excess horses. Because
inventories of wild horses ordinarily have no legal consequence, Plaintiffs allegations of a
general failure to inventory are not cognizable.
Even if inventories did constitute final agency action as a matter of course, Plaintiffs
have failed to challenge a specific inventory or failure-to-inventory. As noted, the APA requires
that plaintiffs challenge a discrete rule, order, license, sanction, relief, or the equivalent or
denial thereof. 5 U.S.C. 551(13). Here, Plaintiffs have not identified any one of Nevadas
many individual inventories as having been delayed or defective, nor have Plaintiffs challenged
final agency action stemming from such an inventory or failure to inventory. Accordingly,
14

Plaintiffs references to wild-horse inventories in Nevada supply no grounds for this Court to
grant relief.

ii. Supreme Court Precedent Precludes Plaintiffs Challenges to BLMs
Maintenance of an Ecological Balance in Nevada

Plaintiffs further allege that BLM has failed to maintain wild horses and burros in a
thriving balance and multiple-use relationship in Nevada. Am. Compl. 39-47. See 16 U.S.C.
1333(b)(2). As the Supreme Court explained in SUWA with specific reference to Plaintiffs
exact claim this allegation of general non-compliance is precisely the type of abstract policy
disagreement falling outside the APA. SUWA, 542 U.S. at 67. Courts may set aside discrete,
final BLM actions that do not comply with 16 U.S.C. 1333(b)(1), id. at 69, but Plaintiffs have
identified no such actions in this case. Rather, Plaintiffs allege that the sum of all BLM actions
in Nevada supplies a cognizable failure-to-act claim: although Plaintiffs outline general ways in
which AMLs and HMAs might not supply a thriving ecological balance, they nowhere identify
individual, final agency actions that are allegedly flawed under these theories. See, e.g., Am.
Compl. 46 (Excess populations of HMAs in Nevada are numerous as are Defendants failure
to take proper action to reduce the populations.). Accordingly, this Court may not resolve
Plaintiffs allegation that Defendants have failed to keep [wild horses] in the ecological balance
and multiple use relationship demanded by [the Wild Horse Act]. Am. Compl. 61.
iii. Plaintiffs Have Not Challenged Final Agency Action Related to
BLMs Use of Long-Term Holding Facilities

Finally, Plaintiffs appear to allege that Plaintiffs have unlawfully employed long-term
holding facilities to house excess wild horses. Am. Compl. 62. As discussed above, BLM is
statutorily required to remove excess horses from overpopulated HMAs. After euthanizing those
horses that are old, sick, or lame, BLM must adopt-out, sell, or humanely destroy remaining
15

excess wild horses. 16 U.S.C. 1333(b)(2)(B)-(C). However, Congress has prohibited BLM
from using appropriated funds to destroy healthy excess horses for which there is no adoption or
sale demand, notwithstanding the insufficient demand for these animals. In Def. of Animals v.
U.S. Dep't of Interior, -- F.3d --, NO. 12-17804, 2014 WL 1876986, at *1 and n.3, *8 and n.20
(9th Cir. May 12, 2014). By forbidding destruction of excess horses, Congress has necessarily
funded and endorsed BLMs use of long-term holding facilities to house excess horses until
demand for sale or adoption increases, or until Congress lifts its prohibitions on the humane
destruction of healthy excess animals. This practice has been upheld by the only court to
squarely address the issue. In Def. of Animals v. U.S. Dept of Interior, 909 F. Supp. 2d 1178,
1194-95 (E.D. Cal. 2012). See also In Def. of Animals, 2014 WL 1876986, at *8 and n.20
(nothing in the Act suggests that Congress intended to bar the relocation of unadoptable horses
to private lands for longterm holding).
Plaintiffs challenges to BLMs use of long-term holding facilities cannot proceed for at
least two reasons. As with their amended complaint in general, Plaintiffs have declined to
challenge a specific, final agency action governing use of long-term holding facilities. Second,
Plaintiffs have not alleged that their members suffer any cognizable harm from BLMs use of
private long-term holding facilities, and Plaintiffs therefore lack standing to pursue challenges to
use of those facilities. Summers v. Earth Island Inst., 555 U.S. 488, 497 (2009) ([T]he
requirement of injury in fact is a hard floor of Article III jurisdiction that cannot be removed by
statute).
8

8
Because the placement of horses in long-term holding is not necessarily a final disposition of
the horses, it is an open question whether BLMs decision to place the horses in long-term
Instead, Plaintiffs have alleged injuries-in-fact stemming only from free-roaming
horses that are on public land. See Am. Compl. 9-12.

16

C. Plaintiffs Second and Third Claims Are Duplicative

In their second and third claims for relief, Plaintiffs seek declaratory and injunctive relief
with respect to the allegations in their first claim. See Am. Compl. 84-92.
9
D. Plaintiffs Procedural Due Process Arguments Do Not State a Valid Claim
for Relief
Because Plaintiffs
include a request for declaratory and injunctive relief in their prayer for relief, these claims are
duplicative and unnecessary. See, e.g., Leigh v. Salazar, NO. 3:11-cv-608-HDM, 2013 WL
1249824, at *2 n.1 (D. Nev. March 26, 2013). Accordingly, this Court must dismiss Plaintiffs
second and third claims.

Finally, Plaintiffs appear to assert that Defendants, through their alleged inaction, have
permitted wild horses to take the water rights of Plaintiffs members without due process. Am.
Compl. 83. Because Plaintiffs have not alleged a stand-alone claim under the Fifth Amendment
and have instead invoked their constitutional arguments under their APA claim, Am. Compl.
75-77, these arguments like the remainder of Plaintiffs APA arguments must fail for want
of a final agency action. Even were this not the case, courts addressing the issue have
consistently held that wild animals protected by the United States are not government

holding even qualifies as a final agency action that is subject to review under the APA. See
supra at 13.
9
Elsewhere, Plaintiffs invoke the Declaratory J udgment Act, 28 U.S.C. 2201-02, as the source
of this Courts jurisdiction. The Declaratory J udgment Act, however, does not extend the
jurisdiction of the federal courts. Medtronic, Inc. v. Mirowski Family Ventures, LLC, 134 S.
Ct. 843, 848 (2014) (quoting Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671
(1950)). Likewise, Plaintiffs invoke the Endangered Species Act (ESA) and the Clean Water
Act (CWA) as sources of the Courts jurisdiction, but have nowhere articulated claims under
either statute. In sum, neither the Declaratory J udgment Act, the CWA, nor the ESA supply any
basis for the Courts jurisdiction over Plaintiffs amended complaint.

17

instrumentalities capable of taking a property interest within the meaning of the Fifth
Amendment. See, e.g., Christy v. Hodel, 857 F.2d 1324, 1334 (9th Cir. 1988) (Of the courts
that have considered whether damage to private property by protected wildlife constitutes a
taking, a clear majority have held that it does not and that the government thus does not owe
compensation.); Colvin Cattle Co. v. United States, 468 F.3d 803, 809 (Fed. Cir. 2006); Fallini
v. United States, 56 F.3d 1378, 1383 (Fed. Cir. 1995); Mountain States Legal Found. v. Hodel,
799 F.2d 1423, 1430 (10th Cir. 1986); Bradshaw v. United States, 47 Fed. Cl. 549, 554 (Fed. Cl.
2000). Thus, Plaintiffs due process arguments not only fail to challenge a final agency action
under the APA, but would in any event supply no basis for the Court to grant relief.
CONCLUSION
For the reason stated above, Defendants respectfully request that the Court dismiss
Plaintiffs amended complaint in its entirety.

Respectfully submitted this 24th day of J une, 2014:
SAM HIRSCH,
Acting Assistant Attorney General
SETH M. BARSKY, Chief
S. J AY GOVINDAN,
Assistant Chief

/s/ Travis J. Annatoyn
TRAVIS J . ANNATOYN
Trial Attorney
U.S. Department of J ustice
Environment & Natural Resources Division
Wildlife & Marine Resources Section
Ben Franklin Station, P.O. Box 7611
Washington, D.C. 20044-7611
(202) 514-5243 (tel)
(202) 305-0275 (fax)
travis.annatoyn@usdoj.gov

Attorneys for Federal Defendant
18

NEVADA ASSOCIATION OF
COUNTIES, et al.

Plaintiffs,

v.

UNITED STATES DEPARTMENT OF
THE INTERIOR, et al.

Defendants.
)
)
)
)
)
)
)
)
)
)
)
CASE NO. 3:13-cv-712-MMD-WGC

CERTIFICATE OF SERVICE

I hereby certify that on J une 24, 2014, I electronically filed the foregoing with the Clerk
of the Court using the CM/ECF system, which will send notification of such to the attorneys of
record.

/s/ Travis J. Annatoyn
TRAVIS J . ANNATOYN


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SAM HIRSCH,

Acting Assistant Attorney General

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