American Wild Horse Preservation Campaign et al v. Jewell et al

Cross MOTION for Summary Judgment Rebecca Jaffe appearing for Defendants Michael C Courtney, Sally Jewell, Neil Kornze, Elliot Traher. Responses due

D. IdahoApril 20, 2017

DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT - 1 RAFAEL M. GONZALEZ, JR. Acting United States Attorney CHRISTINE G. ENGLAND (CA Bar No. 261501) Assistant United States Attorney District of Idaho Washington Group Plaza IV 800 East Park Boulevard, Suite 600 Boise, ID 83712-7788 Tel: (208) 334-1211 Fax: (208) 334-1414 Christine.England@usdoj.gov JEFFREY H. WOOD Acting Assistant Attorney General Environment and Natural Resources Division United States Department of Justice REBECCA JAFFE (NC Bar No. 40726) P.O. Box 7611 Washington, D.C. 20044 Tel: (202) 305-0258 Fax: (202) 305-0506 rebecca.jaffe@usdoj.gov Counsel for Defendants UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO AMERICAN WILD HORSE PRESERVATION CAMPAIGN, ET AL., Plaintiffs v. RYAN ZINKE, ET AL., Defendants. Case No. 1:16-CV-00001-EJL DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT Defendants Ryan Zinke, Secretary of the Department of the Interior; Michael Nedd, Acting Director of the Bureau of Land Management (“BLM”); Elliot Traher, Field Manager for the BLM Jarbidge Field Office; and Michael C. Courtney, District Manager for the BLM Twin Falls District Office respectfully move the Court to enter summary judgment in favor of Case 1:16-cv-00001-EJL Document 26 Filed 04/20/17 Page 1 of 3 DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT - 2 Defendants, deny Plaintiffs’ motion for summary judgment, ECF No. 20, and dismiss the case with prejudice. This motion is based upon Federal Rule of Civil Procedure 56 and is supported by the attached memorandum of points and authorities and the Administrative Record lodged with the Court. Respectfully submitted this 20th day of April, 2017. RAFAEL M. GONZALEZ, JR. Acting United States Attorney District of Idaho CHRISTINE G. ENGLAND (CA State Bar No. 261501) Assistant United States Attorney JEFFREY H. WOOD Acting Assistant Attorney General s/ Rebecca Jaffe Rebecca Jaffe (NC Bar No. 40726) Trial Attorney United States Department of Justice Environment and Natural Resources Division P.O. Box 7611 Washington, DC 20044 Tel: (202) 305-0258 Fax: (202) 305-0506 rebecca.jaffe@usdoj.gov Attorney for Defendants Case 1:16-cv-00001-EJL Document 26 Filed 04/20/17 Page 2 of 3 DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT - 3 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on April 20, 2017, Defendants’ CROSS-MOTION FOR SUMMARY JUDGMENT was electronically filed with the Clerk of the Court using the CM/ECF system which sent a Notice of Electronic Filing to the following persons: Dana M. Johnson Djohnson@lodj.Legaloffice.Pro William N. Lawton nlawton@meyerglitz.com William S. Eubanks II beubanks@meyerglitz.com And, I hereby certify that the following listed non-registered CM/ECF participants were served by: : United States Mail, postage prepaid : Federal Express : Hand-delivery : Facsimile transmission (fax) None s/ Rebecca Jaffe Rebecca Jaffe Case 1:16-cv-00001-EJL Document 26 Filed 04/20/17 Page 3 of 3 RAFAEL M. GONZALEZ, JR. Acting United States Attorney CHRISTINE G. ENGLAND (CA Bar No. 261501) Assistant United States Attorney District of Idaho Washington Group Plaza IV 800 East Park Boulevard, Suite 600 Boise, ID 83712-7788 Tel: (208) 334-1211 Fax: (208) 334-1414 Christine.England@usdoj.gov JEFFREY H. WOOD Acting Assistant Attorney General Environment and Natural Resources Division United States Department of Justice REBECCA JAFFE (NC Bar No. 40726) P.O. Box 7611 Washington, D.C. 20044 Tel: (202) 305-0258 Fax: (202) 305-0506 rebecca.jaffe@usdoj.gov Counsel for Defendants UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO AMERICAN WILD HORSE PRESERVATION CAMPAIGN, ET AL., Plaintiffs v. RYAN ZINKE, ET AL., Defendants. Case No. 1:16-CV-00001-EJL DEFENDANTS’ MEMORANDUM IN OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND IN SUPPORT OF THEIR CROSS- MOTION FOR SUMMARY JUDGMENT Case 1:16-cv-00001-EJL Document 26-1 Filed 04/20/17 Page 1 of 39 DEFENDANTS’ OPPOSITION AND CROSS-MOTION FOR SUMMARY JUDGMENT - i TABLE OF CONTENTS LIST OF ABBREVIATIONS ......................................................................................................... ii TABLE OF AUTHORITIES ......................................................................................................... iii INTRODUCTION .......................................................................................................................... 1 STATUTORY BACKGROUND ................................................................................................... 1 I. The National Environmental Policy Act .............................................................................. 2 II. The Federal Land Policy and Management Act ............................................................... 2 III. The Wild Free-Roaming Horses and Burros Act ............................................................. 3 FACTUAL BACKGROUND ......................................................................................................... 5 I. State of the National Wild Horse Program .......................................................................... 5 II. Saylor Creek Herd ............................................................................................................ 8 III. Jarbidge FEIS and RMP ................................................................................................... 9 A. BLM’s NEPA Process .................................................................................................. 9 B. Alternatives for Managing the Saylor Creek Herd ..................................................... 10 C. Decision for Managing the Saylor Creek Herd .......................................................... 11 STANDARD OF REVIEW .......................................................................................................... 13 ARGUMENT ................................................................................................................................ 14 I. Plaintiffs’ Challenges to the RMP Itself Are Not Ripe...................................................... 14 II. The WHA, WHA Regulations, and WHA Handbook All Permit Non-Reproducing Herds..........................................................................................................................................16 III. BLM Complied with NEPA ........................................................................................... 20 A. BLM Analyzed a Reasonable Range of Alternatives ................................................. 20 B. Plaintiffs Waived Their Right to Advocate For the Partially-Reproducing Herd Alternative............................................................................................................................. 22 C. The NAS Report Supports BLM’s Decision .............................................................. 25 D. BLM Appropriately Considered, Disclosed, and Responded to Comments .............. 27 IV. Remedy........................................................................................................................... 30 CONCLUSION ............................................................................................................................. 30 Case 1:16-cv-00001-EJL Document 26-1 Filed 04/20/17 Page 2 of 39 DEFENDANTS’ OPPOSITION AND CROSS-MOTION FOR SUMMARY JUDGMENT - ii LIST OF ABBREVIATIONS AUM Animal Unit Month BLM Bureau of Land Management EIS Environmental Impact Statement FEIS Final Environmental Impact Statement FLPMA Federal Land Policy Management Act NAS National Academy of Sciences NEPA National Environmental Policy Act PZP Porcine zona pellucida contraceptive vaccine RMP Resource Management Plan WHA Wild Free-Roaming Horses and Burros Act Case 1:16-cv-00001-EJL Document 26-1 Filed 04/20/17 Page 3 of 39 DEFENDANTS’ OPPOSITION AND CROSS-MOTION FOR SUMMARY JUDGMENT - iii TABLE OF AUTHORITIES Cases Alaskan Envtl. Ctr. v. Kempthorne, 457 F.3d 969 (9th Cir. 2006) .................................................................................................... 24 Allied–Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988 F.2d 146 (D.C. Cir. 1993) .................................................................................................. 30 Am. Horse Prot. Ass’n v. Frizzell, 403 F. Supp. 1206 (D. Nev. 1975) .............................................................................................. 4 Am. Horse Prot. Ass’n v. Watt, 694 F.2d 1310 (D.C. Cir. 1982) ........................................................................................ 3, 4, 17 Am. Wild Horse Preservation Campaign v. Salazar 859 F. Supp. 2d 33 (D.D.C. 2012) ............................................................................................ 28 Am. Wild Horse Preservation Campaign v. Salazar 800 F. Supp. 2d 270 (D.D.C. 2011) .......................................................................................... 28 Blake v. Babbitt, 837 F. Supp. 458 (D.D.C. 1993) ................................................................................................. 4 Cal. Cmtys. Against Toxics v. EPA, 688 F.3d 989 (9th Cir. 2012) .................................................................................................... 30 City of Alexandria v. Slater, 198 F.3d 862 (D.C. Cir. 1999) .................................................................................................. 20 City of Carmel-By-The-Sea v. U.S. Dep’t of Transp., 123 F.3d 1142 (9th Cir. 1997) .................................................................................................. 20 Cloud Found., Inc. v. Kempthorne, No. CV-06-111, 2008 WL 2794741 (D. Mont. July 16, 2008) ............................................ 4, 17 Def. of Animals v. Salazar, 675 F. Supp. 2d 89 (D.D.C. 2009) ............................................................................................ 17 Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752 (2004) .................................................................................................................. 23 Earth Island Inst. v. U.S. Forest Serv., 697 F.3d 1010 (9th Cir. 2012) .................................................................................................. 14 Ecology Ctr. v. Castaneda, 574 F.3d 652 (9th Cir. 2009) .................................................................................................... 28 Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d 832 (9th Cir. 2003) .................................................................................................... 26 Ethyl Corp. v. EPA, 541 F.2d 1 (D.C. Cir. 1976) ...................................................................................................... 26 Case 1:16-cv-00001-EJL Document 26-1 Filed 04/20/17 Page 4 of 39 DEFENDANTS’ OPPOSITION AND CROSS-MOTION FOR SUMMARY JUDGMENT - iv Forest Guardians v. U.S. Fish & Wildlife Serv., 611 F.3d 692 (10th Cir. 2010) .................................................................................................. 29 Friends of Se.’s Future v. Morrison, 153 F.3d 1059 (9th Cir. 1998) .................................................................................................. 20 Headwaters, Inc. v. Bureau of Land Mgmt., Medford Dist., 914 F.2d 1174 (9th Cir. 1990) .................................................................................................. 21 In Def. of Animals v. U.S. Dep’t of Interior, 909 F. Supp. 2d 1178 (E.D. Cal. 2012) ............................................................................ 4, 7, 22 In Def. of Animals v. U.S. Dep’t of Interior, 737 F. Supp. 2d 1125 (E.D. Cal. 2010) .................................................................................... 17 Klamath-Siskiyou Wildlands Ctr. v. Nat’l Oceanic & Atmospheric Admin. Nat’l Marine Fisheries Serv., 109 F. Supp. 3d 1238 (N.D. Cal. 2015) .................................................................................... 16 Lands Council v. Powell, 395 F.3d 1019 (9th Cir. 2005) .................................................................................................. 15 Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) .............................................................................................................. 13, 14 Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644 (2007) .................................................................................................................. 29 Nat’l Wildlife Fed’n v. Espy, 45 F.3d 1337 (9th Cir. 1995) .................................................................................................... 30 Norton v. S. Utah Wilderness, All., 542 U.S. 55 (2004) ...................................................................................................................... 3 Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726 (1998) ............................................................................................................ 14, 16 Oregon Envt’l Council v. Kunzman, 817 F.2d 484 (9th Cir. 1987) .................................................................................................... 30 Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) .............................................................................................................. 2, 29 Sierra Forest Legacy v. Sherman, 951 F. Supp. 2d 1100 (E.D. Cal. 2013) .................................................................................... 30 Strickland v. Morton, 519 F.2d 467 (9th Cir. 1975) ...................................................................................................... 3 Swanson v. U.S. Forest Serv., 87 F.3d 339 (9th Cir. 1996) ...................................................................................................... 29 Theodore Roosevelt Conservation P’ship v. Salazar, 616 F.3d 497 (D.C. Cir. 2010) .................................................................................................... 3 Case 1:16-cv-00001-EJL Document 26-1 Filed 04/20/17 Page 5 of 39 DEFENDANTS’ OPPOSITION AND CROSS-MOTION FOR SUMMARY JUDGMENT - v United States v. Alpine Land & Reservoir Co., 887 F.2d 207 (9th Cir. 1989) .................................................................................................... 14 United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33 (1952) .................................................................................................................... 23 USA Petroleum Co. v. Atl. Richfield Co., 13 F.3d 1276 (9th Cir. 1994) .................................................................................................... 16 Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519 (1978) ...................................................................................................... 20, 22, 23 Westlands Water Dist. v. U.S. Dep’t of Interior, 376 F.3d 853 (9th Cir. 2004) ...................................................................................................... 2 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008) ...................................................................................................................... 14 Statutes 5 U.S.C. § 706(2)(A)..................................................................................................................... 13 16 U.S.C. § 1331 ............................................................................................................................. 3 16 U.S.C. § 1332 ........................................................................................................................... 18 16 U.S.C. § 1332(f) ....................................................................................................................... 29 16 U.S.C. § 1333(b)(1) ................................................................................................................. 17 16 U.S.C. § 1333(b)(2) ................................................................................................................... 4 16 U.S.C. § 1333(b)(2)(C) .............................................................................................................. 7 42 U.S.C. § 4321 ............................................................................................................................. 2 42 U.S.C. § 4332(C) ....................................................................................................................... 2 43 U.S.C. § 1712(a) ........................................................................................................................ 3 43 U.S.C. § 1732(a) ........................................................................................................................ 2 Regulations 40 C.F.R. § 1501.1 .......................................................................................................................... 2 40 C.F.R. § 1502.1 .......................................................................................................................... 2 40 C.F.R. § 1502.13 ...................................................................................................................... 20 40 C.F.R. § 1502.14(a).................................................................................................................. 20 40 C.F.R. § 1502.9 ........................................................................................................................ 27 40 C.F.R. § 1503.4(a).................................................................................................................... 27 43 C.F.R. § 1601.0-5(n) .................................................................................................................. 3 Case 1:16-cv-00001-EJL Document 26-1 Filed 04/20/17 Page 6 of 39 DEFENDANTS’ OPPOSITION AND CROSS-MOTION FOR SUMMARY JUDGMENT - vi 43 C.F.R. § 4700.0-6 ..................................................................................................................... 18 51 Fed. Reg. 7410-01 .................................................................................................................... 19 Other Authorities H.R. Rep. No. 95–1122, (1978) ...................................................................................................... 3 Case 1:16-cv-00001-EJL Document 26-1 Filed 04/20/17 Page 7 of 39 DEFENDANTS’ OPPOSITION AND CROSS-MOTION FOR SUMMARY JUDGMENT - 1 INTRODUCTION This case is about the Bureau of Land Management’s (“BLM”) discretion to manage the exponential, exorbitantly-expensive population growth in its wild horse program. After considering 28,000 public comments and a range of seven alternatives for its 2015 Jarbidge Resource Management Plan (“RMP”), BLM reasonably chose to manage the Saylor Creek wild horse herd as a non-reproducing herd. The Saylor Creek herd is not a conservation priority in terms of genetics and it is dependent on expensive, artificial watering systems, which BLM and livestock permittees must both pay to maintain. Managing this herd as a non-reproducing herd will stop future herd growth, thus preventing both increased stress on the watering system and the expense of housing excess horses in costly holding facilities. As horses die from natural causes, BLM will replenish the herd with sterilized horses from other overpopulated Herd Management Areas, thus mitigating the expense of housing those excess horses in holding facilities. Plaintiffs dislike this decision, but their disappointment does not render BLM’s decision arbitrary and capricious. Defendants oppose Plaintiffs’ Motion for Summary Judgment, ECF 20, and submit this combined Opposition to Plaintiffs’ Motion and Cross-Motion for Summary Judgment. BLM complied with the National Environmental Policy Act (“NEPA”) and the Wild Free-Roaming Horses and Burros Act (“WHA”) when it applied its expertise and exercised its discretion in deciding to manage the Saylor Creek herd as a non-reproducing herd. Defendants respectfully request that the Court uphold the challenged decisions. STATUTORY BACKGROUND Three laws govern BLM’s decision regarding the Saylor Creek herd: NEPA, the Federal Land Policy Management Act (“FLPMA”), and the WHA. Case 1:16-cv-00001-EJL Document 26-1 Filed 04/20/17 Page 8 of 39 DEFENDANTS’ OPPOSITION AND CROSS-MOTION FOR SUMMARY JUDGMENT - 2 I. The National Environmental Policy Act NEPA serves the dual purpose of informing agency decision-makers of the environmental effects of proposed major federal actions and ensuring that relevant information is made available to the public. 42 U.S.C. § 4321; 40 C.F.R. § 1501.1; Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989). The statute achieves its objectives by imposing procedural rather than substantive requirements. Robertson, 490 U.S. at 351 (NEPA “prohibits uninformed—rather than unwise—agency action.”). In other words, “NEPA itself does not mandate particular results, but simply prescribes the necessary process.” Id. at 350. “A court must avoid passing judgment on the substance of an agency’s decision”; instead, its “focus must be on ensuring that agencies took 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) (quoting Robertson, 490 U.S. at 350). To fulfill NEPA’s dual purposes, an agency must prepare an Environmental Impact Statement (“EIS”) for “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(C). An EIS must “provide [a] full and fair discussion of significant environmental impacts” so as to “inform decisionmakers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment.” 40 C.F.R. § 1502.1. II. The Federal Land Policy and Management Act FLPMA mandates that BLM “shall manage the public lands under principles of multiple use and sustained yield.” 43 U.S.C. § 1732(a). “‘Multiple use management’ is a deceptively simple term that describes the enormously complicated task of striking a balance among the many competing uses to which land can be put, ‘including, but not limited to, recreation, range, Case 1:16-cv-00001-EJL Document 26-1 Filed 04/20/17 Page 9 of 39 DEFENDANTS’ OPPOSITION AND CROSS-MOTION FOR SUMMARY JUDGMENT - 3 timber, minerals, watershed, wildlife and fish.’” Norton v. S. Utah Wilderness All., 542 U.S. 55, 58 (2004) (quoting 43 U.S.C. § 1702(c)). The agency’s balance of those complex and competing concerns is entitled to deference. Theodore Roosevelt Conservation P’ship v. Salazar, 616 F.3d 497, 518 (D.C. Cir. 2010); Strickland v. Morton, 519 F.2d 467, 469 (9th Cir. 1975) (The multiple-use principle “breathe[s] discretion at every pore.”). FLPMA directs BLM to develop land use plans, such as RMPs, providing for the use of public lands. 43 U.S.C. § 1712(a). An RMP “describes, for a particular area, allowable uses, goals for future condition of the land, and specific next steps.” Norton, 542 U.S. at 59; 43 C.F.R. § 1601.0-5(n). III. The Wild Free-Roaming Horses and Burros Act In 1971, Congress enacted the WHA to preserve wild horses as “living symbols of the historic and pioneer spirit of the West” and to protect them from “capture, branding, harassment, or death.” 16 U.S.C. § 1331. Congress later explained that the WHA had been “necessary to correct intolerable abuses . . . by those seeking to exploit [horses and burros] for private use and profit” and that “[p]articularly objectionable were several cruel practices of rounding up, and then slaughtering animals for sale to processing plants for horse meat.” H.R. Rep. No. 95–1122, at 21 (1978). The WHA empowered BLM to manage wild horses as part of its management of the public lands. Am. Horse Prot. Ass’n v. Watt, 694 F.2d 1310, 1311–12 (D.C. Cir. 1982). Congress “significantly amended” the WHA in 1978 because horses were reproducing too successfully, leading to overpopulation and deterioration of range health. H.R. Rep. No. 95– 1122, at 21. With the 1978 amendments, “Congress struck a new balance . . . between protecting wild horses and competing interests in the resources of the public ranges” by “cut[ting] back on the protection the Act affords wild horses, and . . . reemphasiz[ing] other uses of the natural Case 1:16-cv-00001-EJL Document 26-1 Filed 04/20/17 Page 10 of 39 DEFENDANTS’ OPPOSITION AND CROSS-MOTION FOR SUMMARY JUDGMENT - 4 resources wild horses consume.” Watt, 694 F.2d at 1316. The amendments thus “made clear the importance of management of the public range for multiple uses, rather than emphasizing wild horse needs.” Blake v. Babbitt, 837 F. Supp. 458, 459 (D.D.C. 1993). The amended WHA provides that, where BLM determines that “an overpopulation exists on a given area of the public lands and that action is necessary to remove excess animals, [it] shall immediately remove excess animals from the range so as to achieve appropriate management levels.” 16 U.S.C. § 1333(b)(2). The WHA defines excess animals as “wild free- roaming horses or burros (1) which have been removed from an area . . . 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.” Id. § 1332(f). The WHA thus recognizes—and does not supersede—FLPMA’s multiple-use mandate. The WHA directs BLM to maintain an inventory of wild horses and “determine whether appropriate management levels should be achieved by the removal or destruction of excess animals, or other options (such as sterilization, or natural controls on population levels).” Id. § 1333(b)(1). In other words, the statute expressly recognizes sterilization as a population management tool. The amended WHA gives BLM “a high degree of discretionary authority in managing wild horses on public lands.” Cloud Found., Inc. v. Kempthorne, No. CV-06-111, 2008 WL 2794741, at *11 (D. Mont. July 16, 2008); see also Am. Horse Prot. Ass’n v. Frizzell, 403 F. Supp. 1206, 1217 (D. Nev. 1975) (The WHA “gives a great deal of discretion to the Secretary.”); In Def. of Animals v. U.S. Dep’t of Interior, 909 F. Supp. 2d 1178, 1190 (E.D. Cal. 2012) (“BLM has considerable discretion on how to carry out the directives of the [WHA].”). Case 1:16-cv-00001-EJL Document 26-1 Filed 04/20/17 Page 11 of 39 DEFENDANTS’ OPPOSITION AND CROSS-MOTION FOR SUMMARY JUDGMENT - 5 FACTUAL BACKGROUND BLM made its decisions regarding the Saylor Creek herd in the context of the needs and goals of the national wild horse program. BLM also considered, during its extensive decision- making process, the unique characteristics of the herd, and the Saylor Creek Herd Management Areas’s resource characteristics. After considering seven alternatives in depth, BLM selected an alternative that called for managing the Saylor Creek herd as a non-reproducing herd. I. State of the National Wild Horse Program Across the West, BLM has struggled to control exponential wild horse population growth as the number of horses within Herd Management Areas has far surpassed appropriate management levels. In 2010, the appropriate management level for ten Western states was approximately 26,600 wild horses, but the estimated actual population was 38,365 in those states. AR 075404. A panel of the National Academy of Sciences (“NAS”), an independent body that BLM commissioned to study the wild horse program, found “compelling evidence” that there were even more horses on public lands than reported. AR 075485. Wild horses and burros have no natural predators. AR 075418. Most herds grow at “phenomenal rates” of 16 to 22% per year. AR 075359. Without predators or effective fertility control, wild horse populations can double every four to five years. AR 075384. Moreover, BLM has found that soil, vegetation, and water resources are “almost always severely damaged before these factors negatively affect population growth rates.” AR 162802. To manage populations and maintain range health, BLM must conduct gathers—i.e., rounding up and removing excess horses from the range—and place them in holding facilities. Although the WHA permits adoption of excess horses, adoption rates have failed to keep pace with the number of excess horses gathered and removed from the range. AR 075380. In Case 1:16-cv-00001-EJL Document 26-1 Filed 04/20/17 Page 12 of 39 DEFENDANTS’ OPPOSITION AND CROSS-MOTION FOR SUMMARY JUDGMENT - 6 June 2010, BLM held more than 35,000 excess, unadopted horses in holding facilities. AR 075380. By February 2011, that number had increased to 41,000. AR 075418. In August 2013, the figure was 50,000. AR 075862. BLM’s current method of addressing over-population by removing excess horses from Herd Management Areas and housing them in holding facilities is exorbitantly expensive. AR 075466. The ever-increasing costs associated with caring for unadopted horses have impacted other BLM programs. In fiscal year 2009, BLM spent 70% of its wild horse program budget caring for unadopted wild horses in holding facilities. AR 075381. BLM’s wild horse program expenses that year were $50 million, exceeding the agency’s wild horse appropriations by almost $10 million. AR 075419. To cover the shortfall, BLM shifted funds from other program areas, including wildlife, recreation, and range management. Id. Costs to care for unadopted wild horses in holding facilities increased by another $8 million in fiscal year 2010. Id. In addition, by 2013, BLM’s long-term holding facilities were close to capacity, and moving unadopted horses to short-term holding facilities increased costs by 362% ($1.37 per day in long-term holding facilities compared to $4.96 per day in short-term facilities). AR 075862. Commenters, including Plaintiffs, acknowledged these problems in their comments on the Jarbidge RMP. E.g., AR 186243 (“With the astronomical number of wild equines already languishing in bursting long-term holding facilities, it is unwise to add to this problem by removing yet more wild horses from their rightful ranges. Many of these imprisoned animals are not adopted leaving taxpayers footing the bill of nearly a $100 million a year . . . .”); AR 167889, 169417, 169424 (describing the cycle of round-ups and removals as “unsustainable”); AR 185017 (directing BLM “to manage the Saylor Creek wild horses on the range and avoid large and costly round ups and removals”). Case 1:16-cv-00001-EJL Document 26-1 Filed 04/20/17 Page 13 of 39 DEFENDANTS’ OPPOSITION AND CROSS-MOTION FOR SUMMARY JUDGMENT - 7 The revised WHA permits BLM to “destroy[]” unadopted wild horses, 16 U.S.C. § 1333(b)(2)(C), but appropriations bills have not permitted BLM to euthanize excess horses. See e.g., In Def. of Animals v. U.S. Dep’t of Interior, 909 F. Supp. 2d at 1190 (“Congress has never appropriated funds for extermination.”). In 2009, BLM asked the U.S. Institute for Environmental Conflict Resolution to devise a strategy to bridge differences between stakeholders’ passionate and often conflicting views regarding wild horse management. AR 075416. In June 2010, as a result of this effort, BLM released a draft strategy document for review and comment. Id. In this document, BLM proposed that the number of horses gathered each year should match the number that can be placed in private care in order to reduce the cost of caring for unadopted animals. AR 075384. BLM found that, without a “fundamental shift” in the wild horse program, the number of animals that BLM is holding could grow to more than 80,000 and costs could exceed $100 million by fiscal year 2021. AR 075385. That same year, in 2010, the Inspector General’s Office analyzed BLM’s wild horse program and recommended that BLM minimize the need for holding facilities and, instead, focus on population controls to slow population growth. AR 075419. Fertility control could reduce the number of excess animals that need to be gathered and removed. AR 075386−87. In its strategy document, BLM proposed to implement fertility control for stallions; spay mares once techniques are proven to be safe; research chemical sterilization; and establish non-reproducing populations in certain Herd Management Areas or incorporate a non-reproducing component in multiple Herd Management Areas. AR 075389. After collecting comments on the 2010 strategy, BLM concluded that, as technology and methods improve, it would make fertility control the principal means for maintaining population Case 1:16-cv-00001-EJL Document 26-1 Filed 04/20/17 Page 14 of 39 DEFENDANTS’ OPPOSITION AND CROSS-MOTION FOR SUMMARY JUDGMENT - 8 levels. AR 075417. Many commenters felt that BLM’s “highest priority” was to control population size and there was strong support for fertility control, although there was some disagreement about the best methods to do so. AR 075425−26, 075439. II. Saylor Creek Herd The Saylor Creek herd originated in the 1960s when private individuals captured mares near Challis, Idaho and transported them into the Saylor Creek area. AR 025253. A registered stud was turned out with the mares. Id. Before Congress passed the WHA in 1971, private individuals would capture as many colts as possible in annual roundups. Id. Enactment of the WHA in 1971 ended private roundups, and there were no other population controls. Id. BLM conducted gathers and removals in 1982 and 1989 to bring herd numbers to the 50-horse appropriate management level established in the 1987 Jarbidge RMP. AR 025253. In 2005, due to wildfires, BLM conducted an emergency gather, capturing 334 horses. AR 025254. BLM returned 93 horses, i.e., only 28% of the gathered horses, to the Herd Management Area. Id. Of the 33 mares that BLM returned to the Herd Management Area, it treated 31 of them with a two-year contraceptive vaccine, Porcine zona pellucida (“PZP”). Id. Despite BLM’s use of PZP, between 2006 and 2010, the herd had an average annual growth rate of 18%, id., which is a “phenomenal” growth rate, AR 075359, that can cause the population to double within four to five years, AR 075384. In 2010, BLM conducted another emergency gather due to wildfires, removing 194 horses and returning only 15% of the gathered horses back to the Herd Management Area. AR 025254. In short, PZP and gathers were insufficient to control explosive population growth. The Herd Management Area lacks natural water, and the herd relies entirely on livestock watering systems. AR 025253. All water comes from four pipelines supplied by wells on Case 1:16-cv-00001-EJL Document 26-1 Filed 04/20/17 Page 15 of 39 DEFENDANTS’ OPPOSITION AND CROSS-MOTION FOR SUMMARY JUDGMENT - 9 private and public lands. AR 025875. Ninety-three miles of underground pipelines and 69 troughs provide water to livestock and wild horses. AR SUP002184; AR 000451. BLM and livestock permittees share the maintenance duties. AR 025253. When livestock are present, permittees have primary maintenance responsibility, and, when livestock are not present, BLM is responsible. AR 025253. Before the 2010 emergency gather, the horses commonly damaged the water systems because, for example, a large number of horses would attempt to use water troughs at the same time. AR 075454. The pipeline system is expensive to maintain. AR 3rdSUP000002. For example, in fiscal year 2006, BLM spent over $110,000 to maintain one pipeline segment heavily used by wild horses. AR 000450. III. Jarbidge FEIS and RMP BLM developed the revised Jarbidge RMP through an extensive planning process. It considered in detail seven different management alternatives, with a variety of management objectives, before making a selection. A. BLM’s NEPA Process Before BLM issued the 2015 RMP at issue here, it managed the planning area under the 1987 Jarbidge RMP. AR 024678. The 2015 RMP was a wholesale revision of the 1987 RMP. In 2009, BLM released a Draft EIS, which analyzed the environmental effects of the various alternatives for a revised RMP, and solicited comments from the public. AR 027939. Public comments often expressed diametrically opposing suggestions for wild horse management. For example, some commenters urged BLM to maintain the amount of forage allocated to wild horses, whereas others told BLM not to allocate any forage to wild horses. AR 024681. Some commenters recommended that BLM prioritize wild horses by decreasing or eliminating livestock grazing. E.g. AR 027032, 027035. Other commenters approved of non- Case 1:16-cv-00001-EJL Document 26-1 Filed 04/20/17 Page 16 of 39 DEFENDANTS’ OPPOSITION AND CROSS-MOTION FOR SUMMARY JUDGMENT - 10 reproducing herds because wild horses were an “ongoing drain” on BLM’s budget. AR 027037; see also AR 166799 (“[T]he wild horse issue is a big joke and a huge waste of my tax dollars.”). In 2014, BLM released a Proposed RMP and Final EIS (“FEIS”). AR 024614−027274. BLM received eight protests challenging the Proposed RMP and FEIS, including protests from Plaintiffs Suzanne Roy and the American Wild Horse Preservation Campaign. AR 027943. After reviewing the protests, BLM issued a Record of Decision with the Approved RMP in September 2015. AR 027932−028186. B. Alternatives for Managing the Saylor Creek Herd BLM considered seven alternatives in detail, which differed in, inter alia, the amount of grass, shrubs, and forbs allocated to watershed, wildlife, wild horses, and livestock.1 AR 024681. BLM decided not to develop an alternative that would eliminate livestock grazing because closing the entire planning area to livestock grazing would not satisfy FLPMA’s multiple-use mandate. AR 024726. The no-action alternative mirrored the 1987 RMP, AR 025114, i.e., a herd of 50 horses and 600 Animal Unit Months (“AUMs”)2 for wild horses, AR 024742. Alternative I called for a reproducing herd with an appropriate management level of 100 to 200 wild horses and 2,400 AUMs. AR 025114−15. Alternative II called for a population of zero wild horses and, therefore, it did not allocate any forage for wild horses. AR 025114−15. 1 Each alternative represented a different, reasonable management approach: The No Action alternative continued the management direction in the 1987 RMP; Alternative I focused on existing and historic uses; Alternative II increased commercial uses; Alternative III focused on fuel management and fire suppression; Alternative IV focused on restoration projects for a balanced approach to resource uses; Alternative V focused on restoring habitats; and Alternative VI, which was the proposed RMP, focused on resiliency of the sagebrush steppe ecosystem while allowing for varied resource uses. AR 024710. 2 Wild horses consume approximately one AUM of forage per head per month. AR 025254. Case 1:16-cv-00001-EJL Document 26-1 Filed 04/20/17 Page 17 of 39 DEFENDANTS’ OPPOSITION AND CROSS-MOTION FOR SUMMARY JUDGMENT - 11 Alternative III involved a reproducing herd with an appropriate management level of 200 to 600 wild horses and 7,200 AUMs. AR 025114−15. Alternative IV called for a non-reproducing herd with an appropriate management level of 100 to 200 wild horses and 2,400 AUMs. AR 025114−15. Alternative V involved a non-reproducing herd of 200 to 500 wild horses and 6,000 AUMs. AR 025114−15. Finally, the proposed alternative, Alternative VI, called for a non- reproducing herd of 50 to 200 wild horses with 2,400 AUMs. AR 025114−15. The forage allocations thus ranged from zero AUMs to 7,200 AUMs, and the appropriate management levels ranged from zero to 600 horses. BLM noted, in considering the balance between horses and livestock, that decreases in livestock grazing and increases in wild horse numbers would increase BLM’s responsibility for maintaining and operating the water pipeline systems because BLM shares water maintenance duties with livestock permittees. AR 026012. Moreover, damage to water systems and other infrastructure from a larger wild horse herd would increase expenses for both permittees and BLM. AR 026013. C. Decision for Managing the Saylor Creek Herd BLM selected Alternative VI, the proposed alternative, because it “represent[ed] the mix and variety of actions that . . . best resolve the issues and management concerns in consideration of all values and programs.” AR 027942. Under this alternative, BLM will manage a non- reproducing herd with an appropriate management level range of 50 to 200 wild horses—an increase from the appropriate management level of 50 in the 1987 RMP. AR 027946, 290833. To create the non-reproducing herd, the RMP envisions that BLM will conduct an initial gather of all the wild horses, treat them surgically or chemically to sterilize them, and re-release into the Herd Management Area only those horses at least five years old or older so that younger horses Case 1:16-cv-00001-EJL Document 26-1 Filed 04/20/17 Page 18 of 39 DEFENDANTS’ OPPOSITION AND CROSS-MOTION FOR SUMMARY JUDGMENT - 12 can be adopted. AR 027894. As horses die from natural causes, BLM will repopulate the herd with sterilized horses from other Herd Management Areas. AR 025879. This alternative will enable BLM to manage the Herd Management Area as a holding area on the range for unadopted horses, without the expense of maintaining horses in off-range holding facilities, without removing wild horses from the range permanently, and while controlling population growth. AR 290516, 3rdSUP000002, 3rdSUP000006. In essence, this alternative will relieve some of the national program’s burden of managing thousands of unadopted horses in expensive holding facilities, while keeping this herd in its natural habitat. AR 290516. BLM chose to have a non-reproducing herd in this particular Herd Management Area for several reasons. First, DNA testing showed that the Saylor Creek herd had an average genetic makeup with no trace back to Spanish descent. AR 025879. Spanish bloodlines are particularly important, AR 075642, and herds with old Spanish blood have “high priority for conservation,” AR 075624. The Saylor Creek herd lacks Spanish descent and thus is not a conservation priority. Second, a non-reproducing herd would avoid the need to use gathers to control the herd’s population. AR 026013. After the initial gather discussed above, future gathers will occur only in emergencies or to remove horses unlawfully released into the Herd Management Area. AR 025879. Third, BLM predicted that maintaining a non-reproducing herd may reduce the instinct of males to breach fences. Id. Studs previously breached an allotment fence to join the herd, AR 025254, and several horses were injured from stallions passing through fences and fighting to establish hierarchical status, AR 075455. Fourth, BLM predicted that, with a non- reproducing herd, it could disperse wild horse bands throughout the Herd Management Area, which would decrease localized effects of wild horse grazing. AR 025879. Fifth, a non- Case 1:16-cv-00001-EJL Document 26-1 Filed 04/20/17 Page 19 of 39 DEFENDANTS’ OPPOSITION AND CROSS-MOTION FOR SUMMARY JUDGMENT - 13 reproducing herd will maintain a stable population, which is crucial given that the herd relies on expensive, artificial watering systems. AR 3rdSUP000002. In other words, the use of the watering systems will be constant, and thus more easily managed. Finally, a population that is not growing exponentially will be easier to gather or move quickly in the event of wildfires. AR 075859. Despite establishing a management direction, however, the RMP does not itself implement any of the wild horse management policies described therein, nor does it directly authorize BLM to take any on the ground actions. It instead directs BLM to develop a Herd Management Area Plan, which will contain additional guidelines and management tools. AR 027894. And it requires BLM to conduct more wild-horse specific planning and additional NEPA analysis to consider, inter alia, the effects of various sterilization methods prior to implementing any gather or sterilization effort. Thus, Plaintiffs and others will have other meaningful opportunities to comment on BLM’s management of the Saylor Creek herd. STANDARD OF REVIEW NEPA and the WHA both lack a private right of action or waiver of sovereign immunity, so courts review such claims under the Administrative Procedure Act, which provides that a court may set aside an agency action only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Review under this standard “is narrow, and a court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). An agency’s decision can be set aside “only if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference Case 1:16-cv-00001-EJL Document 26-1 Filed 04/20/17 Page 20 of 39 DEFENDANTS’ OPPOSITION AND CROSS-MOTION FOR SUMMARY JUDGMENT - 14 in view or the product of agency expertise.” Earth Island Inst. v. U.S. Forest Serv., 697 F.3d 1010, 1013 (9th Cir. 2012) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008)). To prevail, an agency need only articulate a “rational connection between the facts found and the choice made.” Motor Vehicle, 463 U.S. at 43. “Deference to an agency’s technical expertise and experience is particularly warranted with respect to questions involving engineering and scientific matters.” United States v. Alpine Land & Reservoir Co., 887 F.2d 207, 213 (9th Cir. 1989). ARGUMENT Plaintiffs’ challenges to the Jarbidge RMP and BLM’s non-reproducing herd decision are not ripe. Even if the challenges were ripe, the WHA, BLM’s regulations, and the wild horse Handbook all permit non-reproducing herds. Finally, BLM satisfied NEPA’s requirements, particularly in terms of considering a reasonable range of alternatives, the NAS report on BLM’s wild horse program, and public comments. I. Plaintiffs’ Challenges to the RMP Itself Are Not Ripe To the extent that Plaintiffs challenge the RMP and BLM’s decision to maintain a non- reproducing herd, as opposed to the process BLM used to reach its decision, Plaintiffs’ claims are not ripe. The Supreme Court has held that a challenge to “the lawfulness of a federal land and resource management plan . . . is not yet ripe for judicial review” because, although RMPs set goals, they do not authorize any specific actions. Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 728 (1998). The Ohio Forestry court held that an RMP challenge was not ripe because, before conducting any on-the-ground action, the agency must (a) propose the “methods to be used,” (b) “ensure that the project is consistent with the [RMP],” (c) “provide those Case 1:16-cv-00001-EJL Document 26-1 Filed 04/20/17 Page 21 of 39 DEFENDANTS’ OPPOSITION AND CROSS-MOTION FOR SUMMARY JUDGMENT - 15 affected . . . notice and an opportunity to be heard,” (d) “conduct an environmental analysis pursuant to [NEPA] to evaluate the effects of the specific project and to contemplate alternatives,” and (e) “subsequently make a final decision . . . , which affected persons may challenge in an administrative appeals process and in court.” Id. at 729–30. Those circumstances apply here: BLM must follow all those steps before actually implementing the RMP objective of a non-reproducing herd. BLM repeatedly stated that, after the RMP issued, it would develop a Herd Management Area Plan, e.g., AR 027048, which involves public comment and examines impacts from various alternatives to achieve a non-reproducing herd, AR 027946. In other words, the decision to manage a non-reproducing herd is “programmatic,” AR SUP2- 000012, and “does not authorize any project . . . or provide approval for any specific future action,” AR 027946. In addition, despite Plaintiffs’ criticisms, e.g., Pl. Br. 28, analyzing sterilization methods and impacts at the RMP stage would have been premature. The RMP did not choose specific population management tools and, thus, appropriately did not examine the impacts of various fertility management mechanisms. AR 290516, SUP2-000013. The science of equine fertility management is evolving, and the NAS report—which Plaintiffs erroneously claim BLM failed to consider, e.g., Pl. Br. 10−13—called repeatedly for further research. E.g., AR 075480, 075570, 075574, 075578, 075592, 075602, 075603, 075604, 075605, 075608, 075683, 075691, 075740. At the Herd Management Area Plan phase, BLM will consider any new research that has emerged since the NAS report’s publication in 2013. Considering sterilization impacts at the RMP stage would have been “both speculative and premature,” Lands Council v. Powell, 395 F.3d 1019, 1023 (9th Cir. 2005), because BLM did not select a sterilization method. BLM specifically made this point when Plaintiffs protested the RMP decision, saying that the NAS Case 1:16-cv-00001-EJL Document 26-1 Filed 04/20/17 Page 22 of 39 DEFENDANTS’ OPPOSITION AND CROSS-MOTION FOR SUMMARY JUDGMENT - 16 report found that “[e]ach fertility management tool has unique and different impacts,” and “[a]t the RMP-level, it is speculative to analyze all conceivable impacts of managing a non- reproducing herd, because the fertility management tool that will be used is not known at this time.” AR SUP2-000013. In addition to being speculative, judicial review now “would require time-consuming judicial consideration of the details of an elaborate, technically based plan” and “[t]hat review would have to take place without benefit of the focus that a particular [sterilization] proposal could provide.” Ohio Forestry, 523 U.S. at 736. In sum, any challenge to the RMP, the non-reproducing herd decision, or the methods for obtaining a non-reproducing herd is not ripe. II. The WHA, WHA Regulations, and WHA Handbook All Permit Non- Reproducing Herds Plaintiffs waived their WHA claim and summary judgment should be granted to Federal Defendants. In their Complaint, Plaintiffs repeatedly asserted that BLM violated the WHA. E.g., Compl. ¶¶ 85−88. But they fail to provide any argument to that effect in their summary judgment brief; they instead argue only that BLM violated NEPA by failing to consider whether the proposed action is consistent with the WHA. See, e.g., Pl. Br. 1 (introducing this suit as a NEPA challenge to the FEIS and final RMP). By not asserting their WHA claim directly in their summary judgment brief, Plaintiffs have waived it. “[A] party cannot revisit theories that it raises but abandons at summary judgment.” USA Petroleum Co. v. Atl. Richfield Co., 13 F.3d 1276, 1284 (9th Cir. 1994); see also Klamath-Siskiyou Wildlands Ctr. v. Nat’l Oceanic & Atmospheric Admin. Nat’l Marine Fisheries Serv., 109 F. Supp. 3d 1238, 1249 (N.D. Cal. 2015) (Plaintiffs’ “failure to raise the third claim on their summary judgment motion constitutes a waiver.”). Case 1:16-cv-00001-EJL Document 26-1 Filed 04/20/17 Page 23 of 39 DEFENDANTS’ OPPOSITION AND CROSS-MOTION FOR SUMMARY JUDGMENT - 17 Nonetheless, insofar as Plaintiffs challenge BLM’s decision under the WHA, regardless of how obliquely they do so, the WHA permits non-reproducing herds. The statute expressly authorizes sterilization and does not limit the number of horses that BLM may sterilize. It authorizes BLM to achieve appropriate management level “by the removal or destruction of excess animals, or other options (such as sterilization, or natural controls on population levels).” 16 U.S.C. § 1333(b)(1) (emphasis added). Several courts have acknowledged that the WHA expressly permits sterilization. E.g., Def. of Animals v. Salazar, 675 F. Supp. 2d 89, 97 (D.D.C. 2009) (“BLM is specifically authorized by the statute to manage horse populations by sterilizing individual horses.”); Cloud Found., Inc., 2008 WL 2794741, at *11 (“BLM concluded that to maintain a thriving ecological balance, the herd should be reduced to nearer the appropriate management level through removal and/or sterilization. These actions are expressly authorized by the [WHA].”). Aside from expressly permitting sterilization, the WHA grants BLM a “high degree of discretionary authority for the purposes of protection, management, and control of wild free- roaming horses and burros on the public lands.” Watt, 694 F.2d at 1316 n.29 (quoting H.R. Rep. No. 92–681, at 6–7 (1971)); see also In Def. of Animals v. U.S. Dep’t of Interior, 737 F. Supp. 2d 1125, 1133 (E.D. Cal. 2010) (The WHA grants BLM “considerable discretion on how to carry out the directives of the Act.”). BLM has concluded that a non-reproducing herd within the Saylor Creek Herd Management Area will help it manage its ballooning wild horse population problem. That decision is within the agency’s discretion to manage and control wild horses on public lands. Furthermore, BLM’s non-reproducing herd decision is consistent with its wild horse regulations, contrary to Plaintiffs’ arguments. Pl. Br. 22−24. The regulations provide that Case 1:16-cv-00001-EJL Document 26-1 Filed 04/20/17 Page 24 of 39 DEFENDANTS’ OPPOSITION AND CROSS-MOTION FOR SUMMARY JUDGMENT - 18 “[w]ild horses and burros shall be managed as self-sustaining populations of healthy animals in balance with other uses and the productive capacity of their habitat.” 43 C.F.R. § 4700.0-6. The term “population” applies to the wild horse populations that BLM manages, as a whole, in all of the Herd Management Areas. Plaintiffs appear to limit the term “population” to a single “herd” to argue that the Saylor Creek herd must itself produce viable offspring. E.g. Pl. Br. 23. But the regulations do not use the term “herd.” The WHA defines herd as “one or more stallions and his mares,” which is clearly much smaller than populations. 16 U.S.C. § 1332. If the Saylor Creek herd does not produce viable offspring, other Herd Management Areas certainly will, as evidenced by the nation-wide, exponential, population growth, which is precisely why BLM chose to manage a non-reproducing herd here. Plaintiffs cite the FEIS to support their argument that the “self-sustaining” regulation means that all herds must be able to produce viable offspring. Pl. Br. 23 (citing AR 025254). Their argument fails because the FEIS never says that each herd must produce viable offspring. It refers only to populations, saying that “[s]elf-sustaining refers to the process whereby established populations are able to persist and successfully produce viable offspring.” AR 025254. Plaintiffs ignore the distinction between populations and herds. The self-sustaining regulation applies broadly to wild horse populations across the range, which will continue to produce offspring, even if this particular herd does not. In addition, the Federal Register preamble establishing the “self-sustaining” regulation discussed “self-sustaining populations” within the context of ensuring there is adequate forage: “[T]he policy is clearly stated that wild horse and burro management will maintain self- sustaining populations. This cannot be done without adequate forage.” Revision of Existing Regulations on Protection, Management, & Control of Wild Free-Roaming Horses & Burrows, Case 1:16-cv-00001-EJL Document 26-1 Filed 04/20/17 Page 25 of 39 DEFENDANTS’ OPPOSITION AND CROSS-MOTION FOR SUMMARY JUDGMENT - 19 51 Fed. Reg. 7410-01, 7411 (Mar. 3, 1986). This discussion indicates that “self-sustaining” refers to adequate forage, not reproduction. Moreover, insofar as the “self-sustaining” regulation refers to ensuring that wild horses have adequate resources, such as forage, a herd that is entirely dependent on artificial watering systems is not self-sustaining. BLM’s non-reproducing herd decision is consistent with its WHA Handbook, and Plaintiffs’ contentions otherwise are wrong. Pl. Br. 24−26. The Handbook mandates that RMPs should identify Herd Management Areas to be managed for non-reproducing wild horses to aid in controlling on-the-range population numbers. AR 162787, 162795, 162805. It specifically defines “non-reproducing Wild horses” as a Herd Management Area “composed, in whole or in part, of sterilized wild horses . . . to aid in controlling on the range population numbers.” AR 162837. It identifies examples of criteria that can be used to select a Herd Management Area for non-reproducing horses, including no special or unique herd characteristics, limited public land water, low ecologic condition, and reliance on private water. AR 162787. The Saylor Creek Herd Management Area meets three of those four criteria, i.e., everything except for low ecologic condition. Plaintiffs ignore that section of the Handbook and, instead, cite only the Handbook section mentioning that non-reproducing horses may be appropriate in small, isolated Herd Management Areas. Pl. Br. 24 (citing AR 162801). The Handbook does not limit the establishment of non-reproducing herds to small, isolated Herd Management Areas; in fact, it says the opposite by saying that non-reproducing herds can be used to manage on-the-range population numbers. See AR 162787, 162795, 162805. Plaintiffs’ selective citation of the Handbook does not render BLM’s decision arbitrary and capricious. Case 1:16-cv-00001-EJL Document 26-1 Filed 04/20/17 Page 26 of 39 DEFENDANTS’ OPPOSITION AND CROSS-MOTION FOR SUMMARY JUDGMENT - 20 The WHA, BLM’s wild horse regulations, and BLM’s wild horse Handbook all permit non-reproducing herds. Thus, the Court should grant summary judgment for Defendants on the WHA claim because Plaintiffs waived it and because it lacks merit. III. BLM Complied with NEPA The Court should grant Defendants summary judgment on Plaintiffs’ NEPA claim because BLM complied with NEPA. The agency considered a reasonable range of alternatives, its decision has scientific support, and it appropriately considered, disclosed, and responded to comments. A. BLM Analyzed a Reasonable Range of Alternatives BLM’s selection of alternatives was reasonable, despite Plaintiffs’ critique. Pl. Br. at 26−28. The “purpose and need” of the agency’s project determine the appropriate range of alternatives. 40 C.F.R. § 1502.13; see also City of Carmel-By-The-Sea v. U.S. Dep’t of Transp., 123 F.3d 1142, 1155 (9th Cir. 1997) (“The stated goal of a project necessarily dictates the range of ‘reasonable’ alternatives.”). The Ninth Circuit affords agencies “considerable discretion to define the purpose and need.” Friends of Se.’s Future v. Morrison, 153 F.3d 1059, 1066 (9th Cir. 1998). NEPA requires agencies to explore reasonable alternatives and “briefly discuss” the reasons other alternatives were eliminated from detailed consideration. 40 C.F.R. § 1502.14(a). An agency’s detailed analysis of alternatives “cannot be found wanting simply because the agency failed to include every alternative device and thought conceivable to the mind of man.” Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 551 (1978). Rather, courts look to whether the range of alternatives was reasonable, with “considerable deference to the agency’s expertise and policy-making role.” City of Alexandria v. Slater, 198 F.3d 862, 867 (D.C. Cir. 1999). Case 1:16-cv-00001-EJL Document 26-1 Filed 04/20/17 Page 27 of 39 DEFENDANTS’ OPPOSITION AND CROSS-MOTION FOR SUMMARY JUDGMENT - 21 BLM considered alternatives that spanned a range of wild horse management options and met its purpose of allocating resources pursuant to FLPMA’s multiple-use mandate. AR 024676. It considered in depth seven alternatives for managing wild horses: maintaining the status quo of a 50-horse appropriate management level from the 1987 RMP, reducing the herd to zero horses, establishing reproducing herds with appropriate management levels of 100 to 200 or 200 to 600, or establishing non-reproducing herds with appropriate management levels of 100 to 200, 200 to 500, or 50 to 200. AR 025114. These alternatives present different combinations of reproducing or non-reproducing herds in different numbers, giving BLM a “wide range” of alternatives from which to make its decision. AR 3rdSUP000002. This range of alternatives satisfied NEPA because the alternatives were consistent with BLM’s purpose and need and because the range of alternatives was reasonable. The Ninth Circuit held that it was “satisfied that the BLM gave adequate consideration to reasonable alternatives” when the agency considered five alternatives in its EIS. Headwaters, Inc. v. Bureau of Land Mgmt., Medford Dist., 914 F.2d 1174, 1181 (9th Cir. 1990). Here, BLM evaluated seven alternatives and each alternative included unique components that provided a variety of management options. BLM’s alternatives were tailored to its purpose, satisfied NEPA’s and FLPMA’s requirements, and provided a range of reasonable management options. Insofar as Plaintiffs contend a wild-horse-priority or no-grazing alternative should also have been considered in depth, they are wrong. First, other courts have found this argument to be unpersuasive and contrary to the multiple use mandate. BLM decided not to develop alternatives that would preclude livestock grazing in the Herd Management Area or the entire planning area. Prohibiting livestock grazing altogether would not satisfy FLPMA’s multiple-use mandate. AR 024726. And courts have held that arguments that a Herd Management Area must Case 1:16-cv-00001-EJL Document 26-1 Filed 04/20/17 Page 28 of 39 DEFENDANTS’ OPPOSITION AND CROSS-MOTION FOR SUMMARY JUDGMENT - 22 be managed principally for wild horses are “unpersuasive” and that the WHA should “not be viewed as requiring that the BLM increase the numbers of horses, or give wild horses priority over other users.” In Def. of Animals, 909 F. Supp. 2d at 1192−93. Second, Plaintiffs’ proffered alternatives are factually infeasible because BLM and livestock permittees cooperatively manage the water supply system in this Herd Management Area. If there were no livestock in the Herd Management Area, then livestock permittees would not help BLM maintain the expensive artificial watering system. AR 075859. In sum, BLM’s alternatives were tailored to its purpose, satisfied NEPA’s and FLPMA’s requirements, and provided a range of reasonable management options. B. Plaintiffs Waived Their Right to Advocate For the Partially-Reproducing Herd Alternative Plaintiffs now argue that BLM should have considered a partially-reproducing herd alternative, Pl. Br. 26−28, but Plaintiffs never raised this argument during the NEPA process, AR 184814−186260, 069414−30, and neither did anyone else. Instead, Plaintiffs and their supporters advocated addressing wild horse capacity issues by prohibiting livestock grazing in the Herd Management Area, and they opposed any management alternatives that involved non- reproducing herds or any level of sterilization. E.g., AR 184815 (“Non-reproducing herds with gelded stallions and/or spayed mares on the range should not be allowed.”); AR 169419, 169425 (commenting that the RMP should prohibit “detrimental population control methods” such as sterilization, unproven fertility drugs, or skewing sex ratios). Accordingly, Plaintiffs have waived any argument that BLM was required to consider a partially reproducing herd alternative. Plaintiffs cannot now fault BLM for failing to consider an alternative that no one ever proposed. Commenters must “structure their participation so that it is meaningful, so that it alerts the agency to the intervenors’ position and contentions.” Vt. Yankee, 435 U.S. at 553. Case 1:16-cv-00001-EJL Document 26-1 Filed 04/20/17 Page 29 of 39 DEFENDANTS’ OPPOSITION AND CROSS-MOTION FOR SUMMARY JUDGMENT - 23 “[C]ourts should not topple over administrative decisions unless the administrative body not only has erred but has erred against objection made at the time appropriate under its practice.” United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37 (1952). In particular, parties who wish to propose alternatives must do so in their comments or else they “forfeit[]” their objections because the agency lacks an “opportunity” to determine if the suggested alternative is “reasonably available.” Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 764–65 (2004). Finally, a commenter’s proposal of a particular alternative must be clear because “administrative proceedings should not be a game or a forum to engage in unjustified obstructionism by making cryptic and obscure reference to matters that ‘ought to be’ considered and then . . . seeking to have that agency determination vacated on the ground that the agency failed to consider matters ‘forcefully presented.’” Vt. Yankee, 435 U.S. at 553–54. Insofar as Plaintiffs contend that the comments of a separate entity—the Animal Welfare Institute—can be construed as suggesting a partially-reproducing herd alternative, see Pl. Br. 28, this construction is hardly clear or obvious, and, therefore, does not rectify their waiver of the argument. The Animal Welfare Institute’s comments questioned the legality of a non- reproducing herd and stated that the commenter “could envision wild horse management strategies where the BLM establishes management measures that allow for a ‘self-sustaining,’ reproducing, but controlled growth wild horse population to be managed in conjunction with animals who are non-reproducing.” AR 169437−38. This mixed approach, however, is consistent with BLM’s selected alternative because the RMP contemplates management of reproducing wild horse populations in other Herd Management Areas “in conjunction with” the non-reproducing Saylor Creek herd. And, even if there are differences of opinion as to how the Animal Welfare Institute’s comment should be construed, the comment did not clearly and Case 1:16-cv-00001-EJL Document 26-1 Filed 04/20/17 Page 30 of 39 DEFENDANTS’ OPPOSITION AND CROSS-MOTION FOR SUMMARY JUDGMENT - 24 obviously suggest that BLM consider a partially-reproducing herd alternative, as Vermont Yankee requires. Finally, even if Plaintiffs or another commenter had proposed the partially-reproducing herd alternative, BLM was not required to consider it because it would not have been viable. Agencies “need not . . . discuss alternatives . . . which are infeasible, ineffective, or inconsistent with the basic policy objectives . . . .” N. Alaskan Envtl. Ctr. v. Kempthorne, 457 F.3d 969, 978 (9th Cir. 2006). First, partially-reproducing herds rarely reduce population growth. In their decision protest, Plaintiffs themselves referenced a study finding that gelding only dominant stallions caused “no reduction in population growth.” AR 213910. And the NAS report noted that even highly effective fertility control methods, such as vasectomy, may have “no effect” on population growth if a sufficient number of animals are not treated. AR 075602. More than 50% of the population must be effectively treated to reduce population size. AR 075603. The NAS report also cited a study finding that the efficacy of selective vasectomies was “questionable.” AR 075754. Second, partially-reproducing herds require careful balancing of reproducing and non-reproducing horses, but private individuals may unlawfully release reproducing horses into this Herd Management Area, e.g., AR 027895, which could destroy the balance of reproducing to non-reproducing horses. Cf. SUP002185 (noting plausibility of domestic horses escaping or being released into Herd Management Area due to close proximity of towns, residences, and ranches). A partially-reproducing herd would morph into a fully- reproducing herd, thus frustrating BLM’s goal of controlling population growth. In sum, Plaintiffs forfeited their right to argue that BLM should have considered a partially-reproducing herd and, even if they had not waived this argument, a partially- reproducing herd was not viable. NEPA thus did not require consideration of this alternative. Case 1:16-cv-00001-EJL Document 26-1 Filed 04/20/17 Page 31 of 39 DEFENDANTS’ OPPOSITION AND CROSS-MOTION FOR SUMMARY JUDGMENT - 25 C. The NAS Report Supports BLM’s Decision Plaintiffs claim that BLM ignored the NAS report, Pl. Br. 10−13, but, in fact, the NAS report supports BLM’s decision. In 2013, the NAS released a report titled “Using Science to Improve the BLM Wild Horse and Burro Program,” AR 075460−857, which examined, inter alia, wild horse population modeling, population control, and fertility control. AR 075476. The report concluded that chemical vasectomy, a sterilization method, was one of the most promising fertility control methods; that it would preserve the basic social unit and sexual behavior, AR 075607; and that it would reduce male reproduction with “minimal side effects,” AR 075606. The NAS report also considered studies that support BLM’s decision to have a non- reproducing herd instead of attempting to control population growth by gathers and administering temporary contraceptives. The NAS report cited three studies showing that, over time, with repeated boosters of injectable contraceptives—i.e., fertility control methods that do not involve sterilization—the difficulty of approaching animals on foot for darting increased. AR 075574. In addition, the NAS report cited data suggesting that hand injection of some contraceptives is more reliable than delivery by dart. AR 075602. In other words, the most effective and reliable method of delivery was hand injection after a gather. AR 075574. These studies support BLM’s decision to have a sterilized herd because sterilization precludes the necessity of future gathers to administer contraceptives. The NAS report also supported long-term fertility control methods, and sterilization is certainly a long-term method. The NAS report noted that duration of fertility inhibition has “major practical importance.” AR 075603. Shorter-acting methods require substantially more effort and financial resources to implement. AR 075603. Longer-acting methods are preferable Case 1:16-cv-00001-EJL Document 26-1 Filed 04/20/17 Page 32 of 39 DEFENDANTS’ OPPOSITION AND CROSS-MOTION FOR SUMMARY JUDGMENT - 26 because they minimize the need for personnel and financial resources and decrease the frequency of animal handling. AR 075603. The NAS report additionally bolsters BLM’s decision to treat the entire herd because it found that a substantial percentage of a population (more than 50%) must be treated to reduce population size. AR 075603. Finally, the NAS report acknowledged the importance of Spanish bloodlines, AR 075642, and said that herds with old Spanish blood have “high priority for conservation,” AR 075624. The absence of Spanish lineage is one reason why BLM decided that the Saylor Creek herd was not a conservation priority. AR 289800−01. According to the NAS report, unique morphological traits are also a conservation priority, AR 075642, and the record contains no evidence that the Saylor Creek herd has any unique morphological traits. BLM concluded that managing the Saylor Creek herd as a non-reproducing herd will result in negligible loss of genetic diversity to the BLM wild horse program, AR 025879, because the Saylor Creek herd lacks the traits, which the NAS report identifies, that are a conservation priority. Simply put, the NAS report supports BLM’s decision. To the extent that the parties’ briefs trade competing citations to different portions of the NAS report, the Court’s role is not to determine whose citations are most persuasive. Instead, the Court must treat BLM’s decision with “great deference” because the Court is “reviewing the agency’s technical analysis and judgments, based on an evaluation of complex scientific data within the agency’s technical expertise.” Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d 832, 869 (9th Cir. 2003); see also Ethyl Corp. v. EPA, 541 F.2d 1, 36 (D.C. Cir. 1976) (en banc) (footnote omitted) (“We must look at the decision not as the chemist, biologist or statistician that we are qualified neither by training nor experience to be, but as a reviewing court exercising our Case 1:16-cv-00001-EJL Document 26-1 Filed 04/20/17 Page 33 of 39 DEFENDANTS’ OPPOSITION AND CROSS-MOTION FOR SUMMARY JUDGMENT - 27 narrowly defined duty of holding agencies to certain minimal standards of rationality.”). BLM appropriately considered the scientific information in the NAS report in making its programmatic decision. That is all that NEPA requires. D. BLM Appropriately Considered, Disclosed, and Responded to Comments Plaintiffs argue that BLM failed to consider and disclose comments opposing its decision, Pl. Br. 18−20, but, in fact, they are simply dissatisfied that BLM did not adopt the horse management strategies for which they lobbied. NEPA regulations mandate that an agency shall discuss any responsible opposing view and shall indicate the agency’s response to the issues raised. 40 C.F.R. § 1502.9. They also require agencies to respond to comments by modifying the EIS or explaining why the comments do not warrant further agency response, and agencies must attach substantive comments on the draft EIS to the final EIS. 40 C.F.R. § 1503.4(a), (b). BLM satisfied these requirements. Contrary to Plaintiffs’ assertions, Pl. Br. 19−20, BLM did not fail to disclose comments. The FEIS contains a 304-page appendix detailing the comments that BLM received and BLM’s responses. AR 026794−027098. BLM received 28,000 public comments, 27,715 of which were form letters, and it sensibly disclosed them, along with its responses, in one centralized place. AR 026794. This appendix reveals the diverse comments that BLM received, including 17 pages listing the 51 wild-horse related comments that BLM received. AR 027031−48, 026234. Plaintiffs argue that BLM violated NEPA because it failed to respond to comments questioning the legality of a sterilized herd under the WHA, Pl. Br. 21−26, but they are wrong.3 3 Plaintiffs also incorrectly allege that BLM previously tried to manage sterilized herds and withdrew its decisions because of court rulings or public opposition. Pl. Br. 4−5. In fact, all the cases that Plaintiffs cite were resolved for reasons other than public opposition or judicial holdings about sterilization. In American Wild Horse Preservation Campaign v. Salazar, the Case 1:16-cv-00001-EJL Document 26-1 Filed 04/20/17 Page 34 of 39 DEFENDANTS’ OPPOSITION AND CROSS-MOTION FOR SUMMARY JUDGMENT - 28 As an initial matter, BLM has ample authority to maintain a non-reproducing herd, as explained in Section II—an issue that can be resolved as a matter of law. Moreover, agencies “need not respond to every single scientific study or comment.” Ecology Ctr. v. Castaneda, 574 F.3d 652, 668 (9th Cir. 2009). But insofar as Plaintiffs contend BLM was also required to discuss that authority in its response to comments, BLM satisfied any such requirement by repeatedly informing commenters that the WHA and wild horse Handbook “provide the necessary authority to establish a non-breeding horse herd.” E.g., AR 027041. Moreover, BLM informed its decision-makers that maintaining a non-reproducing herd was potentially controversial because horse advocates opposed the decision, thus ensuring that agency decision-makers considered this concern. AR 3rdSUP000032, 276231, 276243. NEPA requires nothing more. Plaintiffs wanted BLM to prioritize wild horses over livestock, e.g., AR 169889−90, BLM did not do so for good reasons, and now Plaintiffs contend that BLM’s failure to follow their wishes was arbitrary and capricious, Pl. Br. 18−20. But NEPA does not promise that court ruled that untimely declarations from plaintiffs were part of the administrative record, the agency should have considered them, and “BLM should seek a remand . . . in light of the Expert Declarations.” 859 F. Supp. 2d 33, 47 (D.D.C. 2012). BLM did so. The court’s ruling was thus limited to the administrative record; it never ruled on the legality of a non-reproducing herd. Kathrens v. Jewell, another case that Plaintiffs cite, Pl. Br. 5, involved plaintiffs’ First Amendment right to observe sterilization research. The parties stipulated to voluntary dismissal stating, inter alia, that the stipulation “has no precedential value” and “does not represent an admission by any party to any fact, claim, or defense.” No. 2:16-cv-01650, ECF No. 16 at 1−2 (D. Or. Sept. 9, 2016). Again, there was no ruling about the legality of a non-reproducing herd or public opposition to such a herd. And, in Am. Wild Horse Pres. Campaign v. Salazar, the third decision that Plaintiffs cite, the court dismissed the plaintiffs’ suit for lack of subject matter jurisdiction and said, “[n]othing in this Order should be read to suggest that the Court has considered or taken any position on the validity of the Second Modified Decision or any other pending or future decision of the BLM.” 800 F. Supp. 2d 270, 276 (D.D.C. 2011). In short, none of the decisions that Plaintiffs cite support their contentions either that courts have rejected sterilization decisions or that BLM has withdrawn its decisions because of public opposition. Case 1:16-cv-00001-EJL Document 26-1 Filed 04/20/17 Page 35 of 39 DEFENDANTS’ OPPOSITION AND CROSS-MOTION FOR SUMMARY JUDGMENT - 29 advocates will achieve the specific outcome they want. See Robertson, 490 U.S. at 350 (“NEPA itself does not mandate particular results, but simply prescribes the necessary process.”). BLM did not prioritize wild horses over livestock because (1) it must satisfy FLPMA’s multiple-use mandate; (2) wild horse program costs are increasing exponentially; and (3) this Herd Management Area requires expensive, artificial watering systems that livestock permittees jointly maintain with BLM. AR 000250−54, 169887−88. Aside from FLPMA’s multiple use mandate, the WHA itself also recognizes that BLM must support multiple uses. 16 U.S.C. § 1332(f). Plaintiffs’ brief does not acknowledge the multiple-use mandate, but BLM’s decision shows that the agency weighed competing resources and resource uses, as FLPMA requires. Plaintiffs also cite internal BLM comments raising questions about the non-reproducing herd, e.g., Pl. Br. 17, as evidence that BLM violated NEPA. But internal debate does not show that the decision was arbitrary and capricious; to the contrary, it shows that the agency robustly considered its decision. Cf. Forest Guardians v. U.S. Fish & Wildlife Serv., 611 F.3d 692, 717– 18 (10th Cir. 2010) (“[A]gency employees need not be afraid to conduct debates over e-mail because the agency will not be found to have conducted a biased NEPA analysis . . . .”); Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 658–59 (2007) (“With regard to the various statements made by the involved agencies’ regional offices during the early stages of consideration, the only ‘inconsistency’ respondents can point to is the fact that the agencies changed their minds—something that, as long as the proper procedures were followed, they were fully entitled to do.”). NEPA requires only that BLM’s decision documents contain “a reasonably thorough discussion of the significant aspects of the probable environmental consequences.” Swanson v. Case 1:16-cv-00001-EJL Document 26-1 Filed 04/20/17 Page 36 of 39 DEFENDANTS’ OPPOSITION AND CROSS-MOTION FOR SUMMARY JUDGMENT - 30 U.S. Forest Serv., 87 F.3d 339, 343 (9th Cir. 1996) (quoting Oregon Envt’l Council v. Kunzman, 817 F.2d 484, 492 (9th Cir. 1987)). They do and, thus, BLM satisfied NEPA’s requirements. IV. Remedy Defendants have shown that summary judgment is warranted in their favor. Nonetheless, if the Court rules for Plaintiffs, Defendants request the opportunity to provide separate briefing on remedy. Plaintiffs have asked the Court to vacate the Jarbidge RMP, Record of Decision, and FEIS, but Plaintiffs only challenge the wild horse portion of the RMP. Compl. ¶ 40, Pl. Br. 30. Vacatur of the entire RMP would be unwarranted—particularly because the Herd Management Area only covers seven percent of the Jarbidge RMP planning area, AR 025252. Moreover, even if the Court found that BLM violated NEPA with its wild horse decision, vacatur would not automatically follow because the Court “is not required to set aside every unlawful agency action.” Nat’l Wildlife Fed’n v. Espy, 45 F.3d 1337, 1343 (9th Cir. 1995); see also Sierra Forest Legacy v. Sherman, 951 F. Supp. 2d 1100, 1105 (E.D. Cal. 2013) (“It is well established in this Circuit that a Court is not mechanically obligated to vacate an agency decision that it finds invalid.”). Whether agency action should be vacated depends on a two-factor test: (1) “how serious the agency’s errors are” and (2) “‘the disruptive consequences of an interim change that may itself be changed.’” Cal. Cmtys. Against Toxics v. EPA, 688 F.3d 989, 992 (9th Cir. 2012) (quoting Allied–Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988 F.2d 146, 150–51 (D.C. Cir. 1993)). If the Court rules in Plaintiffs’ favor, Defendants respectfully submit that the parties should be afforded an opportunity to brief these two factors. CONCLUSION For the foregoing reasons, Defendants ask the Court to deny Plaintiffs’ motion for summary judgment and grant Defendants’ cross-motion for summary judgment. Case 1:16-cv-00001-EJL Document 26-1 Filed 04/20/17 Page 37 of 39 DEFENDANTS’ OPPOSITION AND CROSS-MOTION FOR SUMMARY JUDGMENT - 31 Respectfully submitted this 20th day of April, 2017, RAFAEL M. GONZALEZ, JR. Acting United States Attorney District of Idaho CHRISTINE G. ENGLAND (CA State Bar No. 261501) Assistant United States Attorney JEFFREY H. WOOD Acting Assistant Attorney General s/ Rebecca Jaffe REBECCA JAFFE (NC Bar No. 40726) Trial Attorney United States Department of Justice Environment and Natural Resources Division P.O. Box 7611 Washington, DC 20044 Tel: (202) 305-0258 Fax: (202) 305-0506 rebecca.jaffe@usdoj.gov Attorney for Defendants Case 1:16-cv-00001-EJL Document 26-1 Filed 04/20/17 Page 38 of 39 DEFENDANTS’ OPPOSITION AND CROSS-MOTION FOR SUMMARY JUDGMENT - 32 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on April 20, 2017, Defendants’ Memorandum In Opposition To Plaintiffs’ Motion For Summary Judgment And In Support Of Their Cross-Motion For Summary Judgment was electronically filed with the Clerk of the Court using the CM/ECF system which sent a Notice of Electronic Filing to the following persons: Dana M. Johnson Djohnson@lodj.Legaloffice.Pro William N. Lawton nlawton@meyerglitz.com William S. Eubanks II beubanks@meyerglitz.com And, I hereby certify that the following listed non-registered CM/ECF participants were served by: : United States Mail, postage prepaid : Federal Express : Hand-delivery : Facsimile transmission (fax) None s/ Rebecca Jaffe Rebecca Jaffe Case 1:16-cv-00001-EJL Document 26-1 Filed 04/20/17 Page 39 of 39