Case 1:14-cv-00485 Document 1 Filed 03/24/14 Page 1 of 42

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA AMERICAN WILD HORSE PRESERVATION CAMPAIGN 4115 Jalama Road Lompoc, CA 93426, CARLA BOWERS 20005 Buckeye Drive Volcano, CA 95689, RETURN TO FREEDOM 4115 Jalama Road Lompoc, CA 93426, Plaintiffs, v. TOM VILSACK, Secretary U.S. Department of Agriculture 1400 Independence Avenue SW Washington, DC 20250, THOMAS TIDWELL, Chief U.S. Forest Service 1400 Independence Avenue SW Washington, DC 20250, ANN D. CARLSON, Acting Forest Supervisor Modoc National Forest U.S. Forest Service 225 West 8th Street Alturas, CA 96101, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Civ. No.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1. For more than 140 years, wild horses have roamed a pristine area in northeastern

California which, since 1905, has been protected by Congress as the Modoc National Forest

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under the jurisdiction of the Defendant United States Forest Service (Forest Service or USFS). These bands of wild horses whose presence in the Modoc National Forest pre-dates its establishment belong to the larger population of wild horses that has ranged throughout western North America since soon after Spanish explorers first brought horses back to this continent in the late 1400s. American wild horses suffered dramatic reductions in number during the first half of the twentieth century due to competition with livestock for forage and water on public lands. In response, Congress passed the Wild Free-Roaming Horses and Burros Act (Wild Horse Act or WHA) in 1971 to halt such reductions and to secure the welfare of wild horses for posterity. 16 U.S.C. 1331-1340. Under these protections, the wild horse population within a USFS-designated Wild Horse Territory (WHT) in the Modoc National Forest named the Devils Garden WHT grew to an estimated 1,000 horses by 1979. The Forest Services most recent estimate, in 2012, estimated the number of wild horses in the Devils Garden WHT at 1,124 horses, meaning that the wild horse population has increased little in over thirty years. 2. According to the Forest Service, the most recent estimate of 1,124 wild horses is

equivalent to 13,488 Animal Unit Months (AUMs) of forage. An AUM is the amount of forage that one horse, one cow/calf pair, or five sheep consume in one month. (The Forest Service does not use the standard 1.0 AUM per horse per month calculation but instead uses 1.2 AUMs per horse.) The 13,488 AUMs used by wild horses at present is far less than the 23,935 AUMs of forage that the Forest Service has allocated to private cattle and sheep that are authorized to graze in the Devils Garden WHT, as reported by the USFS. In short, prior to the

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decision challenged here, livestock already far outnumbered the current wild horse population in the Devils Garden WHT. 3. For over 30 years, the Devils Garden WHT has consisted of a single, contiguous

258,000-acre range, which the Forest Service established in the early 1980s and formally incorporated into its 1991 Land and Resource Management Plan (LRMP) for the Modoc National Forest. However, on August 29, 2013 the Forest Service adopted a new management plan that eliminated over 25,000 acres, or approximately 9.7% of the overall WHT, from the Devils Garden WHT. The areas eliminated by the Forest Service include the important middle section of the territory where essential forage and water resources exist, and which has served an integral role in connecting all parts of the WHT with all other parts for genetic interchange, interbreeding, and roaming purposes. The Forest Service asserted in its decision that the eliminated areas consist of portions of the former Triangle and Avanzino Ranch lands that were held privately at the time the WHA was passed in 1971, and therefore (according to the agency) should not have been incorporated into the Devils Garden WHT in the early 1980s after those lands became part of the Modoc National Forest. With respect just to the former Triangle and Avanzino Ranch lands, the Forest Services elimination of these lands from the WHT after three decades is legally unsupported. Moreover, the majority of the eliminated areas include lands that were never part of the Triangle and Avanzino Ranches and were not held privately in 1971 but instead were part of the Modoc National Forest at all relevant times. Thus the Forest Services radical redefinition of the boundaries of the Devils Garden WHT is not even supported by the agencys own purported justification for the change.

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4.

The Forest Services unprecedented decision is supported only by a conclusory

statement that the territory that has been recognized and managed by the agency for more than three decades as a WHT resulted from [a]n administrative error. The new management plan for which the Forest Service refused to prepare an Environmental Impact Statement (EIS) and for which the Forest Service did not formally revise the governing LRMP despite this major deviation in the Forest Services management regime and the consequent environmental impacts that will result from it violates the WHA, the National Forest Management Act (NFMA), 16, U.S.C. 1600-1687, and the National Environmental Protection Act (NEPA), 42 U.S.C. 4321-4370, as well as the implementing regulations for these laws. 5. In addition to challenging the Forest Services major boundary modification, and

the agencys reduction and severing of a single longstanding contiguous WHT, this action also challenges the Forest Services adoption of a new Appropriate Management Level (AML) which permanently decreased the low end of the wild horse population that the Forest Service must maintain in the WHT. Forest Service enforcement of this new low AML through future wild horse roundups would allow the removal of up to 82% of the wild horse population from the Devils Garden WHT and would dramatically increase the disparity of forage allocations between protected wild horses (2,472 AUMs, when the Forest Services new low-end AML is put into effect) and discretionary private commercial livestock (23,935 AUMs). Ostensibly, this dramatic reduction in the number of wild horses was intended to address deterioration of rangeland conditions and advance administrative convenience. However, the Forest Service set the new low AML for wild horses without even analyzing how the utilization of 23,935 AUMs of forage by private cattle and sheep grazing the Devils Garden WHT impacts rangeland

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conditions, especially forage and water, despite the fact that the forage used by livestock is nearly ten times the amount the agency has determined that wild horses should use. The Service also failed to conduct a genetic study with regard to wild horses in the WHT prior to setting the new low AML in order to understand the long-term sustainability of the reduced herd, especially once the herd is separated into two isolated groups and genetic material will no longer naturally intermix between the wild horse bands that will remain in the separated portions of the WHT.

6.

The Forest Services adoption of a significantly decreased low AML violates

Congresss mandate that [a]ll management activities shall be at the minimal feasible level. 16 U.S.C. 1333(a) (emphasis added). In addition, the agencys decision to reduce the wild horse population while leaving untouched the much larger numbers of private livestock that are present at Devils Garden each year contravenes Congressional intent that the wild horses be considered as components of the public lands co-equal with wildlife and domestic livestock. House Congressional Record, # 34773, October 4, 1971 (emphasis added). Moreover, by failing to prepare an EIS and by failing to formally revise the governing LRMP when setting a new and substantially decreased low AML for the Devils Garden WHT, the Forest Service also violated NEPA and NFMA. 7. If permitted to proceed, the Forest Services new management plan would result

in the removal of most wild horses currently residing in the Devils Garden WHT; eliminate over 25,000 acres of long-designated and managed Wild Horse Territory, including important meadows and water sources; and split the territory into two separate sections thereby frustrating genetic interchange, roaming, and other natural behaviors wild horses have long engaged in at

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Devils Garden WHT, while also permanently separating wild horses from other horses in the same wild horse band. 8. By adopting these major changes to longstanding Forest Service management of

the Devils Garden WHT, especially without first preparing an EIS or formally revising the governing LRMP, the Forest Services decision to adopt a new management plan that will fundamentally alter the environmental and legal status quo was arbitrary, capricious, and not in accordance with the WHA, NFMA, NEPA, and their implementing regulations; nor was the agencys decision consistent with its own internal directives. Accordingly, the Court should order that the Forest Services decision be vacated and remanded to the agency for further consideration, pursuant to the express dictates of the Administrative Procedure Act (APA). See 5 U.S.C. 706(2)(A), (D) (requiring that a reviewing court shall hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . . [or] without observance of procedure required by law). JURISDICTION 9. This Court has jurisdiction over this action pursuant to 28 U.S.C. 1331. PARTIES 10. Plaintiff American Wild Horse Preservation Campaign (AWHPC) is a broad-

based coalition of public interest groups, environmentalists, humane organizations, and historical societies representing over ten million supporters. AWHPC, which is dedicated to preserving American wild horses and burros in genetically viable free-roaming herds for generations to come, has worked for the past decade to provide a unified voice and platform to advocate for

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Americas wild horses and burros. Supporters of the organizations represented by AWHPC enjoy viewing wild horses on public lands, including in the longstanding Devils Garden WHT, including the middle portion that the Forest Services plan removes from wild horse management. 11. AWHPC opposes the Forest Services decision to adopt the 2013 Territory

Management Plan for the Devils Garden WHT which eliminates over 25,000 acres of historic range from the Devils Garden WHT, significantly reduces the lower end of the AML for wild horses, splits the wild horses in the Devils Garden WHT into two separate populations without natural genetic interchange, and establishes a new decreased low AML for wild horses ostensibly to protect forage while at the same time ignoring the extensive impacts to forage caused by the much larger number of private livestock the Forest Service allows to graze the same Devils Garden WHT each year. AWHPC has submitted detailed comments throughout the Forest Services development of the new Territory Management Plan, including comments in response to the initial scoping notice, comments in response to the second scoping notice, comments on the Proposed Action, comments on the Preliminary Environmental Assessment, and comments on the final Environmental Assessment. Pursuant to USFS regulations (36 C.F.R. 215), AWHPC along with Plaintiff Carla Bowers timely appealed the Forest Services decision on November 18, 2013. The Forest Service denied that appeal in relevant part on January 2, 2014. 12. The Forest Services decision to adopt the new Territory Management Plan,

which: (1) eliminates substantial acreage of existing territory (including essential habitat for forage, water, and other essential resources) from the Devils Garden WHT, (2) divides wild horses into two separate populations thereby frustrating wild horse band connectivity and natural

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genetic interchange, and (3) establishes a legally impermissible low AML for wild horses, harms the organizational interests of AWHPC, the interests of its coalition members, and the interests of its individual members and supporters in protecting and preserving viable free-roaming herds of wild horses on public lands, including in the Devils Garden WHT, and their aesthetic interests in observing wild horses engaging in their natural behaviors on these public lands. 13. A court order requiring the Forest Service to set aside its decision adopting the

new Territory Management Plan is necessary to protect AWHPCs interests and those of its coalition members in the welfare and continued existence of viable free-roaming herds of wild horses in the Devils Garden WHT, and such an order would redress the injuries caused to AWHPC and its members by the Forest Services decision challenged in this case. 14. Plaintiff Carla Bowers is a resident of the town of Volcano, California. Ms.

Bowers advocates for the protection of wild horses on public lands in California, including in the Modoc National Forest. She has been actively engaged in advocating for the protection of wild horses for approximately five years. Ms. Bowers has conducted extensive research and has written several reports on all aspects of the wild horse and burro programs administered by the Forest Service and the Bureau of Land Management on a national scale, and in California and Nevada specifically. She has presented these reports to federal agencies, to the agencies Resource Advisory Councils, to the National Wild Horse and Burro Advisory Board, and to members of Congress in Washington, D.C., as well as to the press, all with the goal of improving the management of wild horses and burros on public lands. Ms. Bowers has regularly visited the Devils Garden WHT, including the newly eliminated middle portion, and she has concrete plans to continue to visit the Devils Garden WHT in the future. When she visits the Devils Garden

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WHT, Ms. Bowers monitors the habitat condition and the wild horses utilizing photographs and creating detailed notes of her findings. She has not only educational and research interests in these wild horses, but also derives immense recreational and aesthetic enjoyment from observing wild horses roaming free in the Devils Garden WHT, including in the middle portion. She plans to return to the Devils Garden in the very near future to observe wild horses and further her aesthetic, recreational, educational, and conservation interests in the Devils Garden WHT and the wild horses that reside there. 15. Ms. Bowers is particularly concerned with the preservation of self-sustaining,

genetically viable, and diverse wild horse populations, and with ensuring sufficient forage exists on public lands where wild horses exist, including in the Devils Garden WHT. Ms. Bowers strongly opposes the Forest Services decision to adopt the new Territory Management Plan which eliminates a significant amount of historic range from the Devils Garden WHT, substantially reduces the low end of the AML for wild horses, splits this reduced population of wild horses into two separate populations without natural genetic interchange, and sets a new low AML for wild horses ostensibly to protect forage while at the same time ignoring the extensive impacts caused by the much larger numbers of private livestock the Forest Service authorizes to graze in the Devils Garden WHT each year. Ms. Bowers has submitted detailed comments throughout the Forest Services development of the new Territory Management Plan, including comments in response to the initial scoping notice, comments in response to the second scoping notice, comments on the Proposed Action, comments on the Preliminary Environmental Assessment, and comments on the final Environmental Assessment. Pursuant to USFS regulations (36 C.F.R. 215), Ms. Bowers along with Plaintiff AWHPC timely

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appealed the Forest Services decision on November 18, 2013. The Forest Service denied that appeal in relevant part on January 2, 2014. 16. The Forest Services decision to adopt the new Territory Management Plan,

which: (1) eliminates substantial acreage of existing territory from the Devils Garden Wild Horse Territory including essential habitat for forage, water, and other resources, (2) divides wild horses into two separate populations thereby frustrating wild horse band connectivity and natural genetic interchange, and (3) establishes a legally impermissible low AML for wild horses, harms the aesthetic, recreational, educational, and conservation interests of Ms. Bowers by threatening the sustainability, genetic viability, and diversity of the wild horses at Devils Garden, as well as the connectivity of particular wild horse bands in the Devils Garden WHT, and by diminishing the ability of Ms. Bowers to view wild horses at Devils Garden as a result of the dramatic reduction in the size of the Devils Garden WHT and the reduction in the wild horse population that will result from the new low AML that the agency set without accounting for other sources of range impacts in the Devils Garden WHT, such as private livestock grazing. 17. A court order requiring the Forest Service to set aside its decision adopting the

new Territory Management Plan is necessary to protect the ability of Ms. Bowers to continue enjoying the wild horses at the Devils Garden WHT in the future in the manner she previously enjoyed, and such an order would redress the injuries caused to Ms. Bowers by the Forest Services decision challenged in this case. 18. Plaintiff Return to Freedom is a non-profit organization that focuses on keeping

natural family bands of wild horses intact and on their rangelands. Its educational programs attract university students, photographers, writers and others from all over the world, and provide

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them with opportunities to view wild horses in the wild, including in California. Return to Freedoms president Neda DeMayo enjoys viewing, photographing, and studying wild horses throughout the west, including in California. She also enjoys taking volunteers and program participants out into wild horse habitats specifically in Nevada, Oregon, and California. Ms. DeMayo has visited Devils Garden multiple times and has plans to visit in the near future. In the past she has toured Devils Garden with work study participants to assess range, water and wild horse conditions and to observe natural behaviors. The California-based nonprofit organization was formed as a model to explore natural herd management and viable on-the-range management solutions, as alternatives to traumatic and costly wild horse roundups. Given that Devils Garden is the last large WHT in Return to Freedoms home state of California, the organization has a special interest in protecting these horses on their range. Protecting the wild horses in Devils Garden and educating the public are prime objectives of Return to Freedoms mission. The organization is expanding its educational program and Devils Garden has been identified as a key classroom on the range for this program. The Forest Services decision to adopt the new Territory Management Plan will impair these organizational interests, and the interests of Return to Freedoms supporters, by diminishing Ms. DeMayos and others opportunities to see wild horses at the Devils Garden WHT. 19. Defendant Tom Vilsack is the Secretary of the United States Department of

Agriculture, the parent agency of the Forest Service, and, accordingly, is ultimately responsible for the decision challenged in this action. 20. Defendant Thomas Tidwell is the Chief of the Forest Service, and therefore is also

responsible for the decision at issue.

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21.

Defendant Ann D. Carlson is the Acting Forest Supervisor of the Modoc National

Forest, and is also responsible for the decision at issue. STATUTORY AND REGULATORY BACKGROUND A. 22. The Wild Free-Roaming Horses and Burros Act In 1971, both houses of Congress passed the WHA by unanimous votes. In doing

so, Congress found that wild free-roaming horses and burros are living symbols of the historic and pioneer spirit of the West, and that they contribute to the diversity of life forms within the Nation and enrich the lives of the American people. 16 U.S.C. 1331. Through the WHA, Congress ensured that wild-free roaming horses and burros shall be protected from capture, branding, harassment, [and] death, and that wild horses would be considered in the area where presently found, as an integral part of the natural system of the public lands. Id. (emphasis added). 23. The WHA requires the Secretary of the Interior through the Bureau of Land

Management (BLM), as well as the Secretary of Agriculture through the Forest Service, to manage wild free-roaming horses and burros as components of the public lands . . . in a manner that is designed to achieve and maintain a thriving natural ecological balance on the public lands. Id. To achieve this objective, the WHA authorizes the Forest Service to designate and maintain specific ranges on public lands as sanctuaries for their protection and preservation. 16 U.S.C. 1333(a). The WHA defines range as the amount of land necessary to sustain an existing herd or herds of wild free-roaming horses and burros, which does not exceed their known territorial limits, and which is devoted principally but not necessarily exclusively to their welfare in keeping with the multiple-use management concept for public lands. 16 U.S.C.

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1332 (emphases added). Thus, Congress made clear that there is a mandatory duty imposed upon agencies to protect wild horses on public lands that in 1971 served as wild horse ranges. 24. In 1980, the Forest Service adopted implementing regulations that require it to

[a]dminister wild free-roaming horses and burros and their progeny on the National Forest System in the areas where they now occur . . . to maintain a thriving ecological balance considering them an integral component of the multiple use resources. 36 C.F.R. 222.61(a)(1) (emphasis added). The regulations further require the Forest Service to [e]stablish wild horse and burro territories in accordance with the Act and continue recognition of such territories where it is determined that horses and/or burros will be recognized as part of the natural system Id. 222.61(a)(3) (emphasis added). While the WHA expressly permits the Forest Service to take into consideration the needs of other wildlife species when adjusting forage allocations on wild horse ranges, the needs of livestock are not included as a factor the Forest Service should consider when making such adjustments. 16 U.S.C. 1333(a). 25. Private livestock currently graze on some 250 million acres of the approximately

650 million acres of federal public lands. By contrast, federal agencies manage fewer than 29 million acres about 26.9 million acres of BLM land and only 2 million acres of Forest Service land for wild horse and burro protection. In other words, while private livestock are authorized by federal agencies to graze upon nearly 40% of all Federal public lands, wild horses and burros are confined to only 4.5% of such lands. It is this small fraction of land that Congress unanimously mandated in the WHA shall be devoted principally to long-term wild horse protection and welfare.

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26.

Forest Service regulations make clear that [g]razing permits and livestock use

permits convey no right, title, or interest held by the United States in any lands or resources. 36 C.F.R. 222.3(b). Instead, discretionary private grazing permits may only be issued provided the land is determined to be available for grazing purposes, 36 C.F.R. 222.3(c)(1)(i), and the permits may be canceled, modified, or suspended in order to accommodate other public purposes, 36 C.F.R. 222.4(a). To implement these regulations, the Forest Service has adopted the agencys Range Management Manual, which explains the Forest Services position that it is the policy of the WHA to [m]anage, protect, and control wild free-roaming horses and burros on National Forest land rather than issue leases or permits to private parties. FSM 2200 2260.3 (emphasis added). By contrast, removal of excess wild horses that must be protected on the range is only narrowly permitted in order to preserve and maintain a thriving natural ecological balance and not to increase livestock grazing on Forest Service lands. 36 C.F.R. 222.60(b)(3). To ensure that wild horse territory is managed principally for the welfare of wild horses, the statute provides that [a]ll management activities shall be at the minimal feasible level. 16 U.S.C. 1333(a) (emphasis added). 27. In sum, with the passage of the WHA, Congress directed the Forest Service to

designate specific ranges where wild horses existed as sanctuaries for wild horses and, once designated, to manage such territories principally for the welfare of wild horses. Once designated, the Forest Service must continue its recognition of such territories and manage wild horses there in perpetuity. While the agency may remove excess wild horses in consideration of the needs of other wildlife or uses of the lands at issue, as with all wild horse management activities, any actions related to the removal of wild horses from the range must be at the

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minimum feasible level necessary to achieve the objective at hand. And, at any rate, because Congress mandated wild horse protection as opposed to activities (e.g., private livestock grazing) which are entirely discretionary, reductions to discretionary activities should, at minimum, be considered before or in conjunction with reductions in wild horse AMLs. B. 28. The National Forest Management Act NFMA requires the Forest Service to develop, maintain, and, as appropriate,

revise land and resource management plans for units of the National Forest System. 16 U.S.C. 1604(a). In developing and amending these land and resource management plans (LRMPs), the Forest Service shall use a systematic interdisciplinary approach to achieve integrated consideration of physical, biological, economic, and other sciences. Id. 1604(b). Congress mandated that the Forest Service shall provide for public participation in the development, review, and revision of land management plans. Id. 1604(d). 29. NFMAs implementing regulations provide that [t]he first priority for planning

to guide management of the National Forest System is to maintain or restore ecological sustainability of national forests and grasslands to provide for a wide variety of uses, values, products, and services. 36 C.F.R. 219.2(a). Subsequent site-specific decisions to implement an LRMP must be consistent with the applicable plan, and, if not, the responsible official may modify the proposed decision to make it consistent with the plan, reject the proposal, or amend the plan to authorize the action. Id. 219.10. The Forest Services Range Management Manual provides further guidance to the agency, indicating that the Forest Service may only adjust territorial boundaries if justified in the Forest Land and Resource Management Plan. FSM 2200 2260.41 (emphasis added). The Manual also instructs that Wild Horse and Burro

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Territory plans are to conform with the Forest land and resource management plans, id. 2263.11 (emphasis added); territory plans must be in compliance with the management direction identified in Regional Guides and Forest land and resource management plans, id. 2263.1 (emphasis added); and a territory plan must describe[] desired population level, detailed management practices, interagency coordination, scheduling, and monitoring requirements for managing each herd unit, within the direction established in the Forest plan, id. 2260.5 (emphasis added). C. 30. The National Environmental Policy Act Congress enacted NEPA to ensure that federal agencies consider the

environmental impacts of their actions before taking them, and to further ensure that they consider alternatives to proposed actions that may have less adverse impacts on the environment. 31. To meet these objectives, all agencies are required to prepare an EIS for major

federal actions that may significantly affect the natural environment. 42 U.S.C. 4332(C). The Council on Environmental Quality (CEQ) an agency within the Executive Office of the President has promulgated regulations implementing NEPA that are binding on all Federal agencies. 40 C.F.R. 1500.3. These regulations provide that in determining whether an EIS is required with respect to a particular proposed action, an agency must prepare an Environmental Assessment (EA) that analyzes the environmental impacts of the proposed action as well as alternatives. 40 C.F.R. 1501.4(c), 1508.9. The EA must analyze both the direct impacts of the proposed action, i.e., those that result directly from the management action, as well as the indirect impacts, which include those caused by the action that are later in time but are still reasonably foreseeable. 40 C.F.R. 1508.8(a)-(b).

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32.

An EA must analyze reasonable alternatives to the proposed action. 40 C.F.R.

1508.9. CEQ has deemed the alternatives analysis the heart of the NEPA process because it present[s] the environmental impacts of the proposal and the alternatives in comparative form, thus sharply defining the issues and providing a clear basis for choice among options by the decisionmaker and the public. 40 C.F.R. 1502.14. 33. The CEQ regulations further provide that to the extent practicable, the agency

shall involve the public in preparing an EA, in order to facilitate public involvement and ultimately result in better decisionmaking minimizing environmental impacts of the action. 40 C.F.R. 1501.4(b), 1508.9(a)(1). To ensure the integrity of the NEPA process, agencies are required to use the NEPA process to objectively evaluate reasonable alternatives and make a final decision based on that evaluation, rather than simply justifying a predetermined outcome that the agency has reached without the benefit of a properly conducted NEPA process. See 40 C.F.R. 1502.2(g) (requiring that the NEPA process shall serve as the means of assessing the environmental impact of proposed agency actions, rather than justifying decisions already made); id. 1502.5 (requiring that NEPA review will not be used to rationalize or justify decisions already made). 34. In determining whether an EIS is required, an agency must consider whether the

proposed action has a significant effect on the human environment. 40 C.F.R. 1508.27. The significance determination is based on factors such as the degree to which the possible effects on the human environment are highly uncertain, or the degree to which the effects on the quality of the human environment are likely to be highly controversial, as well as whether the action establishes a precedent for future actions with significant effects, or whether it causes

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loss or destruction of significant scientific, cultural, or historical resources. Id. 1508.27(b). The presence of any of these factors requires the preparation of an EIS. 35. When an agency determines that an EIS is not required, it must issue a Finding of

No Significant Impact (FONSI), which must present the reasons why the agency has determined that its proposed action will not have a significant impact on the environment. Id. 1508.13. FACTUAL BACKGROUND A. 36. Wild Horses Have Inhabited Devils Garden For Over 140 Years Wild horses existed in North America in pre-historic times but disappeared

approximately 10,000 to 12,000 years ago. Horses returned to the continent in 1493 when Columbus brought them from Spain to the West Indies. Cortes brought them to the mainland in 1519. Thereafter, domesticated horses spread across western North America through use by the Spanish settlers, Native Americans, and others. Some horses escaped domestication or were set free, and by the 18th and 19th centuries, herds of wild horses existed in what are now Northern Mexico, Texas, New Mexico, and California. By the early 1900s, an estimated two million wild horses ranged across North America, but this population suffered significant reductions as wild horses were captured and slaughtered to accommodate livestock and to supply pet food. Public concern for the welfare and sustainability of wild horses resulted in Federal efforts to protect the remaining wild horses beginning in the 1950s. These efforts culminated in the enactment of the WHA in 1971. 37. The Devils Garden WHT is located north of the town of Alturas, California in

Modoc County. For more than 30 years, the Devils Garden WHT, which lies primarily within

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the Modoc National Forest, consisted of 258,000 contiguous acres of public land prior to the agency decision that is the subject of this action. It is the last large wild horse territory on Forest Service land in California. While a small portion of the WHT 8,300 acres falls on lands under the jurisdiction of BLM, the Forest Service takes the lead role in managing the entire territory pursuant to an inter-agency Memorandum of Understanding since the vast majority of the WHTs acreage is on Forest Service land. 38. According to the Forest Service, wild horses have lived in the area now

designated as the Devils Garden WHT for more than 140 years. Records show that unbranded and unclaimed horses were present at Devils Garden since the late 1800s. While there were sporadic efforts to extirpate the wild horse population at Devils Garden in the early- to midtwentieth century, and while roundups severely reduced the population through the early 1950s, sufficient numbers of wild horses remained at the time the WHA was enacted in 1971 to ensure their survival once the Congressional mandate to protect them took effect. B. The Forest Service Establishes a Single, Contiguous Wild Horse Territory at Devils Garden that Reflects the Long-Standing Presence of Wild Horses and Their Use of the Entire Territory In 1975, the Forest Service adopted a Wild Horse Territory Plan for Devils

39.

Garden that included two units covering 236,000 acres. The two units were separated by a middle section that was partially but not exclusively private land. Despite the administrative separation, wild horses nevertheless existed in the middle section as well as the two formally designated eastern and western units. The middle section which, again, was not wholly private land, but rather included a sizeable portion of federal public land contains numerous important meadows and water sources that provide critical resources for wild horses and other wildlife,

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which wild horses have used since at least 1971 and most likely well before that time. Indeed, the Forest Service recognized this fact when, after acquiring certain private lands, including the Triangle Ranch (in 1976) and parts of the Avanzino Ranch via private-public land exchanges, the agency modified the boundary of the Devils Garden WHT in the early 1980s to include all of the land where the wild horses actually existed (and had existed for years, including at the time the WHA was enacted). In addition to adding portions of the Triangle and Avanzino Ranch lands that had been acquired, this modification also incorporated large areas of lands where wild horses existed that had been part of the Modoc National Forest long before 1971, including portions of the Big Sage, Timbered Mountain, Carr and Pine Springs Allotments. The vast majority of the areas from these allotments that were incorporated into the WHT in the early 1980s were publicly held lands in 1971 when the WHA was passed. Together, these modifications added the important middle section and other areas to the Devils Garden WHT. Thus, since the early 1980s, the Devils Garden WHT has consisted of 258,000 acres that formed a single contiguous territory. (A copy of the Forest Service map showing the Devils Garden Wild Horse Territory as it has existed for more than thirty years is attached as Exhibit A.) 40. In 1991, the Forest Service went through the formal LRMP revision process for

the Modoc National Forest, and in its final LRMP the agency incorporated the revised map for the Devils Garden WHT reflecting the larger, single territory. The 1991 LRMP also formally established the AML for wild horses at the Devils Garden WHT at 275-335 animals, meaning that at no time could the Forest Service under the governing LRMP maintain a wild horse population of less than 275 wild horses consistent with the LRMP.

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41.

For the past three decades, the Forest Service has administered and managed wild

horses on land that the agency identified and established as wild horse territory in the early 1980s, including the middle section. At the same time, the Forest Service has, in its discretion, issued permits to private ranchers to graze livestock on ten allotments that collectively cover the entire Devils Garden WHT. 42. The large number of privately grazed cattle and sheep in the Devils Garden WHT

is especially concerning because of the differences in how cattle, in particular, use and consequently damage the range and riparian areas as compared to wild horses. Available empirical data demonstrate that wild horses in many cases provide substantial ecosystem benefits because they roam many miles between higher, hilly ground where forage is plentiful and lower riparian areas where water is ordinarily found. Cows, in contrast, tend to congregate primarily in low-lying riparian areas and spend extensive time in and around riparian areas causing much more concentrated, acute damage in such sensitive habitats. In addition, horses cause little to no damage to the vegetation they consume because their teeth remove only the top of the vegetation (much like a lawn mower) and thus do not affect the growth ability of the grasses. Indeed, because their unique digestive system allows seeds and vegetation to pass through the digestive tract undegraded to be reseeded for future growth, wild horses actually benefit range conditions when maintained at sustainable population levels. In sharp contrast, with no upper teeth, cattle rip at grasses and other forage, inhibiting future growth and destroying the plant, and their ruminant digestive systems do not benefit the ecosystem because seeds are not usable after they pass through the bovine digestive tract. As a result, data shows that removing wild horses from a particular management area has, at best, a negligible effect on range conditions if cattle and

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sheep numbers remain unchanged since it is private livestock, due to their concentrated herding patterns and physiological attributes, that can and do cause serious damage to the range, particularly in the most sensitive, low-lying riparian habitats. C. The Forest Service Proposes to Eliminate Substantial Portions from the Devils Garden Wild Horse Territory, Divide the Reduced Territory, and Set a Legally Unsupportable AML that Deviates from the Agencys LRMP On July 27, 2011, the Forest Service issued a scoping letter in which it

43.

propos[ed] to update the Devils Garden Wild Horse Territory Plan which will guide management of wild horses on Modoc National Forest for the next 15-20 years. The scoping letter stated that the purpose for the project was management of the Devils Garden Plateau Territory wild horse herd over the next 15-20 years in a manner that supports a healthy, genetically diverse horse population, maintains or improves the habitat of the Territory; and sustains the natural ecological balance and multiple use relationship 44. The proposed actions in the scoping letter included determining if the current

appropriate management level (AML) of 335 head, as established in the Modoc National Forest LRMP, 1991 continues to be valid, and if not determine the optimum number of animals the Territory will support on a yearlong basis. The Forest Service also stated that a feature of the proposal was to [a]djust the lower level of AML to increase intervals between removals to 4-5 years. The other actions proposed included managing the horses for a 50:50 male-to-female sex ratio; managing one portion of the population to maintain draft horse style characteristics; containing animals within the territory; managing the population for genetic diversity; and implementing population suppression methods.

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45.

The scoping letter stated that an environmental assessment would be prepared

pursuant to NEPA to help the Forest Service decide the population range at which the wild horses at Devils Garden would be managed; what techniques would be used to maintain the historic characteristics of the herd; which population suppression methods would be implemented; the frequency of removals; and the procedures that would be incorporated into future removals. 46. Nowhere in the scoping letter did the Forest Service even raise the possibility that

it was considering eliminating over 25,000 acres of already designated wild horse territory from the Devils Garden WHT. Instead, the letter included a map showing the larger single wild horse territory that was established by the Forest Service thirty years earlier and that was expressly incorporated into the 1991 LRMP. 47. Plaintiffs AHWPC and Ms. Bowers submitted comments to the initial scoping

letter on August 30, 2011 and August 29, 2011, respectively. In their comments, they expressed concerns about, inter alia, changes to the AML that would prioritize livestock, the frequency and manner in which removals would be carried out, and issues raised by the proposed sex ratio. 48. Nearly sixteen months later, on December 13, 2012, the Forest Service issued a

new scoping letter and a Proposed Action in which it proposed for the first time to modify the boundary of the Devils Garden WHT and to eliminate over 25,000 acres or approximately 9.7% of the overall WHT that the agency previously had designated as part of the territory and had managed accordingly for more than thirty years. This proposal purported to divide the territory into the two separate sections that existed in 1975 prior to the governments acquisition of the Triangle and Avanzino Ranch lands. (A copy of the map included with the Proposed

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Action is attached as Exhibit B.) While the Forest Service asserted that this change was required because the lands added to the WHT in the early 1980s had been privately held at the time the WHA was passed in 1971, as explained below, the revised boundaries that the Forest Service ultimately adopted in 2013 actually eliminated substantially more territory than just the portions of the Triangle and Avanzino Ranch lands that had been included in the WHT in the early 1980s. Instead, the majority of the eliminated areas were never part of the Triangle or Avanzino Ranch lands but consisted of portions of the Big Sage, Timbered Mountain, Carr and Pine Springs Allotments, the overwhelming majority of which was publicly held in 1971 when the WHA was passed. 49. The Forest Service provided no explanation for this major boundary modification

other than asserting without elaboration that the agencys establishment of a single Wild Horse Territory in the 1980s was for administrative convenience and was [a]n administrative error. The Proposed Action contained no discussion of the historic use of the middle section by wild horses, nor did it explain whether the agency believed the middle section had or had not been used by wild horses both before the enactment of the WHA and after it. Nor did the agency explain why it was including public lands that were part of the Modoc National Forest at the time the WHA was passed. Moreover, while the document did concede that the larger single territory was the one included in the still-operative 1991 LRMP, it did not explain what basis the agency was invoking to deviate from the governing LRMP. 50. Plaintiffs AWHPC and Bowers both submitted comments in response to the

Proposed Action in which they reiterated their previous concerns and also strongly objected to

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the proposal to eliminate substantial wild horse range including the middle section from the Devils Garden WHT. 51. Only one month after it issued the Proposed Action, the Forest Service released a

document in January 2013 entitled Evaluation of Monitoring Data for the Purpose of Determining an Appropriate Management Level (AML Evaluation). In it, the Forest Service proposed new AMLs for eight livestock grazing allotments that overlapped with the significantly reduced, divided wild horse territory identified in the Proposed Action. With respect to part of the middle portion (i.e., the Triangle and Avanzino Ranch lands), however, the AML was established as 0 wild horses for the two areas. While the Forest Service asserted that it was eliminating parts of the Triangle and Avanzino Ranch lands from wild horse use (within the middle section), in fact large areas of additional lands within the middle section were also being eliminated from wild horse use, including parts of the Big Sage, Timbered Mountain, and Carr allotments. Despite the fact that the majority of these areas were never private lands, nor were they even mentioned during the Forest Services planning process, the agencys proposal would zero out wild horses in these areas as well. Thus, in its AML Evaluation which was the critical analysis upon which its revised Territory Management Plan would be based, the Forest Service had already effectively implemented the substantially redefined and significantly reduced territory that was first proposed in the Proposed Action merely one month earlier before waiting for a final decision or even public comment in response to the new scoping letter. This meant that over 25,000 acres that had been designated and maintained as wild horse territory for more than thirty years, and which provided important range for the Devils Garden WHT wild horses, were no longer included as part of the animals territory. Instead, given the proposed AML of

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zero wild horses in the middle section, any horses found there would be subject to elimination from Devils Garden through immediate removal. That the agencys AML Evaluation did not even consider the possibility that the Proposed Action issued one month earlier would not be adopted, but instead assumed the dramatic elimination of this land, demonstrates that the Proposed Action was a predetermined outcome in the agencys view. 52. The AML Evaluation proposed a new AML of 105-183 horses for the eastern

portion of the redefined territory, and a new AML of 101-219 horses for the western portion. Again, the AML for the middle section was zero. The proposed overall new AML range of 206402 both increased the high AML and lowered the low AML established in the governing 1991 LRMP, which was 275-335 horses. Importantly, since the Forest Service is authorized to and often does remove excess wild horses down to the low AML, this proposal has the effect of substantially decreasing the low AML by 69 wild horses, from 275 wild horses in the LRMP to the 206 in the new proposal, which is more than a 25% reduction. Even more troubling, the new AML is divided across the two separate portions of the WHT, which means that the Devils Garden wild horse population will be separated into two discrete populations. Thus, the eastern portion of the WHT may at any time have as few as 105 wild horses and the western portion as few as 101 wild horses, calling into question serious genetic diversity concerns, particularly because the middle portion has been eliminated along with genetic interchange between wild horse bands on either side. 53. On May 2, 2013, the Forest Serviced released its Draft EA for the revised Devils

Garden Wild Horse Territory Management Plan, which proposed, inter alia, to adopt the revised boundaries for the territory proposed in the Proposed Action as well as the new proposed AML.

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The Forest Service rejected an alternative that would have established an AML of 700-900 wild horses, which would have allowed more wild horses to remain in the Devils Garden WHT consistent with wild horse numbers in the 1970s, and which would have allocated forage and other resources at least somewhat more equitably between wild horses and private livestock in the Devils Garden WHT. While the Draft EA asserted that it was aimed at addressing deterioration of the range, no consideration was given to the impacts caused by the allocation of approximately 23,935 AUMs for private cattle and sheep that are brought to Devils Garden each year impacts which, as described above, have been found in many cases to be considerable because of the manner in which herd animals such as cattle and sheep graze. Moreover, while one of the goals of the decision was to ensure the existence of a genetically sustainable population of wild horses, the new low AML of 206 wild horses when applied to the two separate portions of the revised WHT means that approximately only 100 wild horses would exist within either portion of the WHT after an agency roundup. The Forest Service adopted these changes despite its admission that [t]he genetic health of the herd has not yet been determined. 54. Plaintiff AWHPC submitted detailed comments in response to the Draft EA on

May 22, 2013, and Ms. Bowers submitted her comments on May 31, 2013. In their comments, AWHPC and Ms. Bowers expressed concerns that the proposed AML was improper and did not reflect the need to maintain the genetic sustainability of the wild horse population, that the AML reflected a preference for livestock use of the territory, that the AML was based on the improper determination that rangeland deterioration was caused solely by wild horses, and that the forage calculations the agency used were erroneous and did not reflect current scientific understandings.

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Plaintiffs also pointed out that, in significantly modifying the Devils Garden WHT AML, the Forest Service failed to consider and analyze available forage and resources in an integrated manner taking into account private livestock grazing in the WHT, which would have allowed a holistic approach to determine the relevant forage allocations for various uses of the WHT, and, consequently, determine whether reductions should occur to private grazing allotments, the wild horse AML, or both. AWHPC and Ms. Bowers also strongly objected to the proposed decision to eliminate substantial territory from the Devils Garden WHT, and pointed out that wild horses had existed in the middle section since at least 1971 when the WHA was passed. For various reasons, Plaintiffs also explained that the substantial modifications proposed by the Forest Service were not consistent with the governing LRMP, nor under the circumstances could the Forest Service circumvent its obligation to prepare an EIS. In addition, AWHPC and Ms. Bowers both supported the selection of the alternative that would have established an AML more reflective of the current population of horses, as well as the population that existed in the Devils Garden WHT in the late 1970s according to the agencys own data. D. With Its August 29, 2013 Record of Decision and Final EA, the Forest Service Adopted Its Decisions to Zero Out over 25,000 Acres of Long-Standing Wild Horse Territory, Divide the Reduced Territory, and Adopt an Inappropriate AML On August 29, 2013, the Forest Service issued a Final EA, in which the agency

55.

adopted the proposed action from the Draft EA with certain minor modifications. The Forest Service also issued a Record of Decision (ROD), which authorized the agency to proceed with the action, and a Finding of No Significant Impact (FONSI). In the FONSI, the Forest Service stated that the selected alternative would not pose significant short or long term adverse effects, and despite the unprecedented elimination of significant land from the territory it

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also asserted that the proposal somehow was consistent with the 1991 LRMP and applicable law and regulations. The FONSI stated that future actions related to livestock grazing had been analyzed in adopting the selected alternative, and that such actions were found to be relatively minor for all resources. In fact, while the effects of wild horses on livestock were arguably considered, the effects of livestock on health of the rangeland and availability of forage were not considered (much less analyzed) at all, and instead all observed rangeland conditions were attributed to wild horses even though their numbers are fewer than the private cattle and sheep that graze at Devils Garden. This omission was particularly egregious considering that private cattle and sheep, due to their herd and behavioral characteristics, are known to cause heavily concentrated damage in riparian and other areas as compared to wild horses which disperse any impacts much more lightly across the landscape. 56. The Forest Service also failed to analyze the impact that reducing the horse

population to the new low AML, and the division of the horse population into two isolated units, would have on the sustainability and genetic viability of the herd. Instead, the agency stated that such an analysis would be conducted in the future, but it nevertheless adopted the new AML and eliminated the middle section from the Wild Horse Territory without the benefit of that critically important analysis. 57. Pursuant to USFS regulations (36 C.F.R. 215), Plaintiffs timely appealed the

Forest Services decision on November 18, 2013. The Forest Service denied that appeal in relevant part on January 2, 2014. Having fully exhausted their available administrative avenues to obtain relief from the Forest Services erroneous adoption of the 2013 Wild Horse

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Management Plan for Devils Garden, Plaintiffs now seek judicial intervention through this action. PLAINTIFFS FIRST CAUSE OF ACTION (Violations of the APA and the Wild Free-Roaming Horses and Burros Act as to the boundary modification) 58. 59. Plaintiffs hereby incorporate paragraphs 1 through 57, as if set forth in full herein. The Forest Services decision to eliminate over 25,000 acres of previously

designated wild horse territory from the Devils Garden WHT approximately 9.7% of the original 258,000 acres of the WHT that existed before the decision violates the mandate of the WHA to maintain designated wild horse ranges on public lands as sanctuaries for their protection and preservation. 16 U.S.C. 1333(a). It also violates the Forest Services own 1980-promulgated regulatory requirement that it [a]dminister wild free-roaming horses and burros and their progeny on the National Forest System in the areas where they now occur . . . to maintain a thriving ecological balance considering them an integral component of the multiple use resources. 36 C.F.R. 222.61(a)(1) (emphasis added). It also violates the requirement that the Forest Service continue recognition of territories where it is determined that horses and/or burros will be recognized as part of the natural system . . . . Id. 222.61(a)(3). 60. The Forest Services decision eliminated significant territory where wild horses

have been maintained and managed for more than 30 years. The only explanation that the Forest Service has provided is that it was correcting an administrative error, but no details about this conclusory determination have been provided to the public. Moreover, the Forest Service made this decision without any effort to determine whether wild horses existed, as a factual matter, in

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the newly eliminated territories in 1971 when the WHA was enacted or in 1980 when the Service issued its WHA implementing regulations. 61. In addition, the agency has based this change on its position that the eliminated

areas should not have been included in the Devils Garden WHT because they were part of the privately held Triangle and Avanzino Ranch lands when the WHA was passed in 1971. In fact the majority of the eliminated territory was never part of the Triangle or Avanzino Rach lands but instead consists of portions of the Big Sage, Timbered Mountain, Carr and Pine Springs Allotments, the vast majority of which were not privately held in 1971 when the WHA was passed. Instead, these parts of the eliminated areas were all publicly held and part of the Modoc National Forest in 1971. Thus, even applying the Forest Services own reasoning which Plaintiffs dispute the Forest Service has failed to provide any legally adequate justification for eliminating most of the land from the WHT. 62. By violating the WHA and its own regulations, and failing to provide any legally

adequate explanation for its decision, the Forest Services decision to eliminate over 25,000 acres of designated wild horse territory is arbitrary, capricious, an abuse of discretion, and not in accordance with law (i.e., the WHA), in violation of Section 706(2) of the APA. 63. The Forest Services actions have injured plaintiffs in the manner described in

paragraphs 10-18.

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PLAINTIFFS SECOND CAUSE OF ACTION (Violations of the APA and NFMA as to the boundary modification) 64. 65. Plaintiffs hereby incorporate paragraphs 1 through 57, as if set forth in full herein. The Forest Services decision to substantially adjust the border of the Devils

Garden WHT and in the process eliminate over 25,000 acres of previously designated wild horse territory from the WHT directly contravenes the still-operative 1991 LRMP which expressly incorporated and directed the Service to manage a single, contiguous 258,000 acre Wild Horse Territory for Devils Garden. The Forest Services new decision, which both eliminates critical wild horse habitat and zeroes out the wild horses that have long used the eliminated areas, is not an insignificant revision of the LRMP, and was made without going through the formal Forest Plan amendment or revision process. Instead, the decision was made when, in December 2012, the Forest Service released a site-specific Proposed Decision to eliminate territory that had been managed for wild horses for more than 30 years, and did so with no explanation other than a conclusory statement that the decision establishing the single, contiguous territory in the early 1980s was the result of [a]dministrative error. 66. The Forest Services decision is inconsistent with the governing 1991 LRMP,

failed to satisfy the required formal Forest Plan amendment or revision process in NFMA despite making significant changes to the WHT boundary and wild horse connectivity, and therefore violates NFMA and its implementing regulations. Moreover, the Forest Services decision contravenes the agencys own NFMA directives as set forth in its Range Management Manual, which instructs that the Forest Service may only adjust territorial boundaries if justified in the Forest Land and Resource Management Plan, FSM 2200 2260.41 (emphasis added), and

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which explains that Wild Horse and Burro Territory plans are to conform with the Forest land and resource management plans, id. 2263.11 (emphasis added); see also id. 2263.1 (requiring that WHT plans must be in compliance with the management direction identified in Regional Guides and Forest land and resource management plans) (emphasis added); id. 2260.5 (explaining that a territory plan must be within the direction established in the Forest plan) (emphasis added). 67. By violating the 1991 LRMP, NFMA, and the agencys own internal directives,

the Forest Services decision to eliminate over 25,000 acres of designated wild horse territory without formally amending or revising the governing LRMP is arbitrary, capricious, an abuse of discretion, and not in accordance with law (i.e., NFMA), in violation of Section 706(2) of the APA. 68. The Forest Services actions have injured plaintiffs in the manner described in

paragraphs 10-18. PLAINTIFFS THIRD CAUSE OF ACTION (Violations of the APA and NEPA as to the boundary modification) 69. 70. Plaintiffs hereby incorporate paragraphs 1 through 57, as if set forth in full herein. In making the decision to eliminate a substantial amount of acreage over 25,000

acres of previously designated wild horse territory from the Devils Garden WHT, the Forest Service did not consider any reasonable alternatives to that action, including a no-action alternative. It also did not analyze at all the impact that the elimination of over 25,000 acres of the Devils Garden WHT would have on the wild horses at Devils Garden, particularly in light of the fact that certain essential resources such as forage and water are now inaccessible to wild

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horses in areas that those horses have accessed and used for more than 30 years (and, in actuality, much longer), and in light of the fact that wild horse bands will now lose connectivity and natural genetic interchange that has existed for decades. The Forest Service failed to take a hard look at the serious environmental and related effects of its chosen action, in violation of NEPA and its implementing regulations. This failure is especially egregious given that the decision will result in the permanent removal of all wild horses from the eliminated territories, including the middle section which consists of the northern Triangle, Avanzino, northwestern Big Sage, north Carr, and western Timbered Mountain allotments of the public lands. 71. The Forest Service also failed to adequately respond to public comments

regarding the importance of the eliminated territory and its historical use by wild horses, but instead only responded that the action was intended to correct an administrative error without further explanation. By so failing, the Forest Service violated the public participation mandate of NEPA and its implementing regulations. Also, the Forest Service almost immediately incorporated this proposed decision into its AML Evaluation without first considering public comment in response to this dramatic change, thereby indicating that the proposal was a foregone conclusion. 72. The Forest Service also violated NEPA by taking an action eliminating over

25,000 acres that has long been available to the wild horses in the Devils Garden WHT that will substantially and significantly alter the environmental status quo in the WHT by eliminating forage, water, and other resources from availability to wild horses in the middle portion and by severing connectivity and natural genetic interchange that has long existed between wild horse bands throughout the contiguous Devils Garden WHT. Along with other NEPA significance

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factors, see 40 C.F.R. 1508.27, there is no question that this precedential decision regardless of the reason for it will result in a major change in the environmental status quo, thereby triggering the need for an EIS, which the Forest Service failed to prepare. 73. By violating NEPA and its implementing regulations in the ways described

herein, the Forest Services actions were arbitrary, capricious, an abuse of discretion and not in accordance with law (i.e., NEPA), in violation of Section 706(2) of the APA. 74. The Forest Services actions have injured plaintiffs in the manner described in

paragraphs 10-18. PLAINTIFFS FOURTH CAUSE OF ACTION (Violations of the APA and the Wild Free-Roaming Horses and Burros Act as to the AML modification) 75. 76. Plaintiffs hereby incorporate paragraphs 1 through 57, as if set forth in full herein. The Forest Services decision to establish an overall AML for Devils Garden of

206-402 horses which, combined with the agencys major boundary modification, results in a low AML in the eastern portion of only 105 wild horses and in the western portion only 101 wild horses to purportedly address rangeland conditions without considering livestock impacts, and for administrative convenience, violates the WHAs requirement that designated wild horse territories be devoted principally to the welfare of wild horses. 16 U.S.C. 1332. The failure to account for much less analyze the forage requirements of private livestock when taking the drastic action to reduce the low AML of Congressionally protected wild horses in the Devils Garden WHT also violates the agencys own Range Management directives which require all uses to be evaluated in combination and adjusted accordingly. See FSM 2200 2263.11 (mandating that the Forest Service must, when preparing a territory plan, [c]onsider existing

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livestock and wildlife needs and activities as well as the forage requirements of all animals in the area covered by the plan) (emphasis added). Moreover, considering that there are far more private cattle and sheep grazing in the Devils Garden WHT consuming much more forage than the relatively small number of wild horses, by deciding to significantly reduce the overall WHT AML by 69 horses a more than 25% reduction in the low AML from what the governing LRMP prescribes while refusing to reduce any discretionary grazing permit allotments to private ranchers for cattle and sheep, violates the mandate in the WHA that [a]ll [wild horse] management activities shall be at the minimal feasible level, 16 U.S.C. 1333(a) a mandate that does not exist with respect to private cattle and sheep. 77. The adverse impact of the Forest Services decision to adopt a new low AML of

206 wild horses on the sustainability and genetic viability of the wild horse population in the Devils Garden WHT was compounded by the Forest Services decision to eliminate the longstanding middle section of the WHT. Thus, the Forest Service has decided both to reduce the overall population of wild horses, and divide this reduced population into two separate and isolated groups. The Forest Service has made these decisions even though the agency admits that no genetic study of the population has been performed, and despite the fact that the effect of the agencys action will be to undermine its stated objective that the revised plan should support[] a healthy, genetically diverse horse population. By threatening the genetic viability of the wild horses at Devils Garden, without first undertaking a genetic study to analyze the import of its drastic decisions, the Forest Services decisions violate the WHA and its implementing regulations.

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78.

As set forth above, the newly adopted AML violates the WHA, its implementing

regulations, and the agencys own internal directives, and is therefore arbitrary, capricious, an abuse of discretion, and not in accordance with law (i.e., the WHA), in violation of Section 706(2) of the APA. 79. The Forest Services actions have injured plaintiffs in the manner described in

paragraphs 10-18. PLAINTIFFS FIFTH CAUSE OF ACTION (Violations of the APA and NFMA as to the AML modification) 80. 81. Plaintiffs hereby incorporate paragraphs 1 through 57, as if set forth in full herein. The Forest Services decision to reduce the low end of the AML established in the

1991 LRMP from 275 to 206 is patently inconsistent with the 1991 LRMP, failed to satisfy the required formal Forest Plan amendment or revision process, and violates NFMA and its implementing regulations. 82. By analyzing wild horse rangeland impacts and AMLs in isolation, the Forest

Service segmented its analysis in piecemeal fashion and erroneously assumed all impacts to the WHT rangeland were the result of wild horses without studying and considering the impacts of the principal users of the range private cattle and sheep. Had the Forest Service analyzed rangeland impacts as part of the Forest Plan revision process, as required under NFMA and its regulations, it would have had to study the impacts of all users of the wild horse territory and its decision would have taken account of the relative impacts in determining whether, and how much, reduction of various uses is warranted based on that data. As the Forest Services Range Management Manual explains, the Forest Service must, when preparing a territory plan,

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[c]onsider existing livestock and wildlife needs and activities as well as the forage requirements of all animals in the area covered by the plan. FSM 2200 2263.11 (emphasis added). The agencys failure in this respect is particularly egregious in light of the fact that the Forest Services regulations make clear that [g]razing permits and livestock use permits convey no right, title, or interest held by the United States in any lands or resources, 36 C.F.R. 222.3(b), discretionary private grazing permits may only be issued provided the land is determined to be available for grazing purposes, 36 C.F.R. 222.3(c)(1)(i), and the permits may be canceled, modified, or suspended in order to accommodate other public purposes, such as to allocate some forage to wild horses, wildlife, or other uses, 36 C.F.R. 222.4(a). 83. As set forth above, the newly adopted low AML that significantly deviates from

the AML in the governing LRMP and which did not analyze at all whether discretionary cattle and sheep grazing permit allocations should be reduced instead of reducing the wild horse AML violates NFMA, its implementing regulations, and the agencys internal directions and is arbitrary, capricious, an abuse of discretion and not in accordance with law (i.e., NFMA), in violation of Section 706(2) of the APA. 84. The Forest Services actions have injured plaintiffs in the manner described in

paragraphs 10-18. PLAINTIFFS SIXTH CAUSE OF ACTION (Violations of the APA and NEPA as to the AML modification) 85. 86. Plaintiffs hereby incorporate paragraphs 1 through 57, as if set forth in full herein. By failing in connection with the revised Management Plan to analyze the impacts

of livestock grazing in the Devils Garden WHT, and to determine whether, and to what extent,

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livestock, rather than wild horses, adversely affect the ranges condition and resources, before deciding to significantly reduce the low wild horse AML in the Devils Garden WHT, the Forest Service violated NEPA and its implementing regulations. 87. By utilizing outdated and discredited information and guidance documents in

deciding to adopt a new AML for wild horses, the Forest Service has failed to take a hard look at the effect of its chosen action, in violation of NEPA and its implementing regulations 88. By failing to undertake a genetic study of the wild horse population at Devils

Garden before significantly reducing the low AMLs for the two new isolated populations that are no longer connected and which will no longer naturally interchange genetic material, the Forest Service has failed to take a hard look at the effect of its chosen action, in violation of NEPA and its implementing regulations. 89. By failing to adequately respond to public comments that the Forest Service must

analyze livestock grazing at Devils Garden when seeking to address rangeland conditions, and must ensure the long-term sustainability and genetic viability of the wild horse population at Devils Garden, the Forest Service has violated the public participation of NEPA and its implementing regulations. 90. The Forest Service also violated NEPA by taking an action significantly

reducing the low AML in the Devils Garden WHT that will substantially and fundamentally alter the environmental status quo in the WHT by allowing the Forest Service to maintain 69 less horses in the WHT than it has ever previously maintained, which could lead to serious genetic concerns. These concerns about the agencys significant reduction in the low AML are magnified by the Forest Services permanent elimination of the middle portion as part of the

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WHT, since that major boundary modification will frustrate natural genetic interchange between the eastern and western portions and most likely separate wild horses of the same band affecting their natural behaviors. Thus, while the significant reduction in the low AML to 206 wild horses would have itself been significant as that term is defined under NEPA thereby triggering the agencys obligation to prepare an EIS, see 40 C.F.R. 1508.27, in conjunction with the Forest Services elimination of the middle portion and severing the connectivity that has long existed in the single contiguous WHT, the reduction of the low AML to only 101 wild horses in the western portion and 105 wild horses in the eastern portion is an extremely significant and precedential change from the legal and environmental status quo which therefore required a detailed analysis in an EIS. By failing to prepare an EIS for this decision, and instead by issuing an inadequate FONSI and accompanying EA, the Forest Service violated NEPA and its implementing regulations. This violation is especially egregious given the agencys stated objective that the revised plan should support[] a healthy, genetically diverse horse population. 89. The Forest Services January 2013 AML Evaluation the purpose of which was

to guide and inform the agencys final decision asserted the AML was established as 0 wild horses for the two areas comprising the middle portion of the Devils Garden WHT. Thus, the AML Evaluation did not even consider the possibility that the Draft EAs Proposed Action issued one month earlier would not be adopted, but instead assumed the dramatic elimination of the middle portion as part of any final decision rendered by the agency. Accordingly, the Proposed Action in this respect was a predetermined outcome in the agencys view, meaning that the Forest Services decisionmaking process was nothing more than an attempt to justify or rationalize a decision that the agency had already made long before issuing a final decision or

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final NEPA document, in violation of binding NEPA regulations. See 40 C.F.R. 1502.2(g) (requiring that the NEPA process shall serve as the means of assessing the environmental impact of proposed agency actions, rather than justifying decisions already made) (emphasis added); id. 1502.5 (requiring that NEPA review will not be used to rationalize or justify decisions already made) (emphasis added). 90 As set forth above, the newly adopted AML violates the NEPA and its

implementing regulations in various ways and is arbitrary, capricious, an abuse of discretion and not in accordance with law (i.e., NEPA), in violation of Section 706(2) of the APA. 91. The Forest Services actions have injured plaintiffs in the manner described in

paragraphs 10-18. PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that the Court enter an Order: 1. Declaring that defendants have violated the Wild Free-Roaming Horses and

Burros Act, the National Forest Management Act, the National Environmental Policy Act, the Administrative Procedure Act, and relevant implementing regulations; 2. Setting aside the challenged agency decision for failing to comply with governing

laws, and remanding the decision for further consideration by the Forest Service; 3. Enjoining defendants from taking any further actions to implement the decision

until the agency has fully complied with these laws on remand; 4. 5. Awarding plaintiffs their attorneys fees and costs in this action; Granting plaintiffs any further relief as the Court may deem just and proper.

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Respectfully submitted,

_________________________________ William S. Eubanks II (D.C. Bar No. 987036) MEYER GLITZENSTEIN & CRYSTAL 1601 Connecticut Ave., N.W., Suite 700 Washington, D.C. 20009 (202) 588-5206 / (202) 588-5049 fax beubanks@meyerglitz.com

___/s/ David Zaft_______________ David Zaft (CA Bar No. 237365) Pro Hac Vice Application Pending Matthew W. OBrien (CA Bar No. 261568) Pro Hac Vice Application Pending CALDWELL LESLIE & PROCTOR, PC 725 S. Figueroa Street, 31st Floor Los Angeles, CA 90017 (213) 629-9040 / (213) 629-9022 fax zaft@caldwell-leslie.com obrien@caldwell-leslie.com

___/s/ Jeff Pierce_______________ Jeffrey Pierce (CA Bar No. 293085) Pro Hac Vice Application Pending ANIMAL LEGAL DEFENSE FUND 170 Cotati Ave. Cotati, CA 94931 (707) 795-2533 / (707) 795-7280 jpierce@aldf.org

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