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Front Range Equine Rescue v. Bureau of Land Management

United States District Court, D. Colorado

November 29, 2017

FRONT RANGE EQUINE RESCUE, Petitioner,
v.
BUREAU OF LAND MANAGEMENT, and INTERIOR BOARD OF LAND APPEALS, Respondents. No.

          ORDER MAKING ABSOLUTE ORDER TO SHOW CAUSE AND DISMISSING CASE FOR LACK OF SUBJECT MATTER JURISDICTION

          WILLIAM J. MAIRTINEZ UNITED STATES DISTRICT JUDGE

         Petitioner Front Range Equine Rescue seeks judicial review of a decision of the Interior Board of Land Appeals (“IBLA”), a body within the U.S. Department of the Interior (“Interior Department”) that hears administrative appeals from certain decisions made by the Bureau of Land Management (“BLM”) (together, “Respondents”).

         Underlying this dispute, although not directly before the Court, is a BLM decision to eliminate (by relocation) a certain herd of wild horses in western Colorado, allegedly in violation of both the Wild Free-Roaming Horses and Burros Act (“Wild Horse Act”), 16 U.S.C. §§ 1331 et seq., and the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321 et seq. Petitioner appealed this decision to the IBLA, but the IBLA dismissed the appeal for lack of standing under Interior Department regulations specifically governing standing to appeal to the IBLA.

         That finding-a lack of regulatory standing-is what Petitioner originally challenged in this action. As will become clear below, however, the Court has now been presented with a question of Article III standing, which it raised by an Order to Show Cause dated October 19, 2017. (ECF No. 32.) For the reasons explained below, the Court makes that Order to Show Cause absolute because it finds that this dispute is moot and that the capable-of-repetition-yet-evading-review exception does not apply. Accordingly, this case will be dismissed for lack of subject matter jurisdiction. The Court will nonetheless retain jurisdiction to evaluate the jurisdictional consequences of any change in the circumstances that have led the Court to issue this order.

         I. BACKGROUND

         A. The Wild Horse Act

         Through the Wild Horse Act, Congress declared that wild horses are “an integral part of the natural system of the public lands.” 16 U.S.C. § 1331. “All wild free-roaming horses” are therefore “under the jurisdiction of the Secretary [of the Interior] for the purpose of management and protection.” Id. § 1333(a).

         One of the Interior Department's duties under the Wild Horse Act is to prevent overpopulation of wild horses. Id. § 1333(b)(1). If the Interior Department finds that overpopulation exists, it is required to “remove excess animals from the range so as to achieve appropriate management levels.” Id. § 1333(b)(2).

         B. The Decision to Remove Horses from the West Douglas Herd Area

         Rio Blanco County, Colorado, contains a section of wild horse habitat that BLM has named the “West Douglas Herd Area.” (Administrative Record (ECF No. 13) (“R.”) at 7974.) In 2014 and 2015, Respondents studied the West Douglas Herd Area with an eye toward relocating all of its horses, and concluded, among other things, that a plan for such relocation would not require an environmental impact statement because relocation would have no new significant environmental impact. (R. at 8196.)[1]

         In July 2015, BLM determined that all of the horses in and near the West Douglas Herd Area (expected to reach a population of approximately 350 in the near future) were “excess horses.” (R. at 7975.) Later that same month, the Field Manager for the BLM field office in charge of the West Douglas Herd Area issued a Decision Record[2] approving a plan to capture and relocate all of those horses. (R. at 7964-70.) In particular, the Decision Record approved a gathering operation to begin on September 14, 2015, targeting 167 horses. (R. at 7964.) Regarding “those wild horses remaining [after the September 2015 roundup], ” the Decision Record stated that

BLM would begin utilizing bait and water trapping gather methods to gather and remove excess wild horses . . . as soon as funding is allocated and space is available at short and long-term holding facilities. . . .
* * *
. . . the proposed gather would be conducted over a period of several years using a variety of gather techniques . . . .

(R. at 7964-65.)

         C. Petitioner's IBLA Appeal

         In August 2015, Petitioner appealed that Decision Record to the IBLA. (R. at 8728.) The Interior Department filed a motion with the IBLA to dismiss that appeal for lack of standing under the following Interior Department regulation:

(a) Any party to a case who is adversely affected by a decision of the [BLM] . . . has the right to appeal to the [IBLA] . . .
* * *
(d) A party to a case is adversely affected, as set forth in paragraph (a) of this section, when that party has a legally cognizable interest, and the decision on appeal has caused or is substantially likely to cause injury to that interest.

43 C.F.R. § 4.410. Specifically, the Interior Department argued that Petitioner had failed to show that it was adversely affected by the Decision Record. (R. at 9273.)

         In response, Petitioner argued that it had “organizational standing” under Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982). (R. at 9345-46.) In brief, Havens held that a fair housing organization had standing in its own right to challenge alleged violations of the Fair Housing Act (i.e., without regard to whether it had associational standing to bring such a challenge) because those alleged violations had “perceptibly impaired [the organization's] ability to provide counseling and referral services for low-and moderate-income homeseekers . . . . Such concrete and demonstrable injury to the organization's activities-with the consequent drain on the organization's resources- constitutes far more than simply a setback to the organization's abstract social interests.” 455 U.S. at 379 (citation omitted).

         Following Havens's lead, Petitioner submitted a declaration from its president and founder, Hilary Wood. (R. at 9355-58.) Wood's declaration describes Petitioner as a non-profit organization

dedicated to stopping cruelty and abuse of horses through rescue and rehabilitation. [Petitioner] is actively involved in the rescue, rehabilitation and adoption to good homes of domestic and wild horses, and in educational efforts regarding responsible horse ownership and wild horse roundups. . . .
One of [Petitioner's] primary goals is to protect wild horses on federal public lands. To that end, [Petitioner] has expended significant time and resources to monitor and comment on unjustified or harmful roundups conducted by [BLM]. . . .
[Petitioner] has diverted, and continues to divert time, money, and efforts away from its other work in order to evaluate, research, investigate, and combat BLM's illegal conduct affecting wild horses. For example, [Petitioner] has commented on at least ten BLM management actions causing harm to wild horse health since January 2015, including BLM's actions in connection with the [West Douglas Herd Area]. [Petitioner] has also undertaken additional investigations and evaluations of BLM's efforts in the [West Douglas Herd Area], expending resources that would have been used on other organizational missions, but for BLM's illegal conduct in connection with those herds.
Because of BLM policies harming the health of wild horses across the country, [Petitioner] has been and continues to be forced to expend its limited resources investigating and tracking BLM's unlawful actions. The resources that have been used for these projects would otherwise have been used for [Petitioner's] other campaigns and organizational goals, including its efforts to keep wild horses free from roundups and confinement in BLM long-term holding areas, adoption of rescued or removed wild horses to good homes, and educational efforts regarding wild horse roundups, the cruelty of horse slaughter, and responsible horse ownership.
[Petitioner] has a national campaign to “Save the Wild Horses.” [Petitioner's] mission to protect and sustain wild horses on federal public lands is frustrated by BLM's plan to eliminate the horses in the [West Douglas Herd Area] such that the future health of the herd in Colorado is jeopardized. The interests of [Petitioner] have been and will continue to be adversely affected if BLM is permitted to continue its practice of zeroing out entire herds of wild horses.

(R. at 9355-57.)

         By decision dated March 31, 2016, the IBLA ultimately found this declaration inadequate to meet the “adversely affected” requirement of 43 C.F.R. § 4.410. (R. at 9397-414.)[3] The IBLA first summarized two of its own recent decisions (one of which dismissed a nearly identical appeal from Petitioner relating to a wild horse roundup in Oregon[4]), and found from those opinions that Petitioner was simply pursuing its stated mission and “[t]he activity that gives meaning to [Petitioner's] mission cannot also be said to cause injury to that mission.” (R. at 9407-08 (internal quotation marks omitted).) As for Havens, the IBLA cited lower court opinions supposedly clarifying its meaning and showing that Havens does not dictate that Petitioner has standing. (R. at 9408- 13.)

         The following month, Petitioner filed this action under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701 et seq., seeking review of the IBLA's decision. (ECF No. 1.)

         D. The Parties' Arguments on the Merits

         In its opening appeal brief, Petitioner argued that “adversely affected” under the Interior Department's regulation must be interpreted under Havens and lower court decisions interpreting it: “Because there is no body of law established by the IBLA in analyzing Havens-type standing under 43 [C.F.R. §] 4.410, the only logical approach is to apply federal case law and to consider it as weighty precedent in reaching a decision.” (ECF No. 14 at 14.)[5] This would be especially appropriate, according to Petitioner, because “[t]he IBLA routinely-and in the challenged opinion in particular- cites federal case law standing doctrine in reaching its conclusions.” (Id. at 18 n.4.)

         Respondents countered that federal case law interpreting Article III standing under the U.S. Constitution is irrelevant: “Despite Petitioner's insistence that it has standing under Article III, it is the standing requirements in 43 C.F.R. § 4.410 that determine whether Petitioner had standing to appeal to the IBLA, not Article III case law.” (ECF No. 18 at 21-22.) Respondents characterized the IBLA's underlying opinion as resting solely on the IBLA's prior decisions interpreting its “adversely affected” regulation, with an analysis of Havens and related precedent solely because Petitioner raised Havens in its briefing. (See id. at 22, 27-30.)

         E. The Court's Original Concerns

         Respondents' characterization of the IBLA's opinion is inaccurate. The IBLA interwove its own precedent and Havens-related precedent, and never included any statement to the effect of, e.g., “Havens is irrelevant, but even if it did apply . . .” Rather, drawing from Havens-related precedent as much as its own precedent, the IBLA concluded that Petitioner does not have standing under 43 C.F.R. § 4.410. (R. at 9408- 13.)

         This raises interesting questions about the scope of Havens-style organizational standing, about the distinction between Article III standing and administrative standing, about what to do when an administrative agency uses federal standing doctrine to interpret its own regulatory standing requirements, and so forth. But the Court became concerned that answers to these questions may be unnecessary.

         Petitioner's ultimate goal, it appears, is to have the Decision Record vacated. To achieve that goal, Petitioner would need to file an APA action claiming that BLM acted arbitrarily, capriciously, or in a manner otherwise contrary to law when reaching the decision embodied in the Decision Record. See 5 U.S.C. § 706(2). But a party may not bring such a suit unless there is a “final agency action, ” 5 U.S.C. § 704, and such final action typically does not exist until the party has exhausted administrative remedies made available by the agency, see generally 4 Koch & Murphy, Admin. L. & Prac. § 12:21 (3d ed., Feb. 2017 update) (“Koch & Murphy”). With respect to BLM decisions, an appeal to ...


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