FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT AMERICAN WILD HORSE No. 18-17403 CAMPAIGN; KIMERLEE CURYL, D.C. No. Plaintiffs-Appellants, 3:18-cv-00059-LRH- CBC v. DAVID BERNHARDT, OPINION Secretary of the Department of the Interior; MICHAEL D. NEDD; JILL C. SILVEY, Defendants-Appellees. Appeal from the United States District Court for the District of Nevada Larry R. Hicks, District Judge, Presiding Argued and Submitted April 29, 2020 San Francisco, California Filed July 2, 2020 Before: Ronald Lee Gilman,* Susan P. Graber, and Daniel P. Collins, Circuit Judges. Opinion by Judge Graber * The Honorable Ronald Lee Gilman, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. 2 AM. WILD HORSE CAMPAIGN V. BERNHARDT SUMMARY** Wild Horses The panel affirmed the district court’s summary judgment in favor of federal defendants in an action alleging that the Bureau of Land Management (“BLM”)’s “geld and release” plan for wild horses violated the National Environmental Policy Act (“NEPA”), the Administrative Procedure Act, and the Wild Free-Roaming Horses and Burros Act. BLM developed a Gather Plan to address an excess of wild horses. In 2017, BLM determined that there was an overpopulation of wild horses in northeastern Nevada. It developed a plan to restore ecological balance by adjusting the sex ratio of the population, administering fertility control treatments to mares, and gelding and releasing back to the range some male horses. The panel held that BLM did not act arbitrarily or capriciously when it chose to geld and release some of the male horses that would otherwise be permanently removed. The panel rejected plaintiffs’ arguments challenging BLM’s actions and decisions. Plaintiffs argued that BLM must prepare an environmental impact statement (“EIS”) for its Gather Plan because five of NEPA’s intensity factors demonstrated that gelding and release would have significant effects on the environment. First, an agency must prepare an EIS when its ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. AM. WILD HORSE CAMPAIGN V. BERNHARDT 3 action will have “highly uncertain effects” on the environment. The panel held that BLM’s plan to geld and release male horses to the range did not meet that threshold. The panel held that BLM used the existing evidence to assess the level of uncertainty and made reasonable predictions based on prior data to conclude that there would be no significant environmental impact. Second, the panel held that the effects of the Gather Plan were not “highly controversial.” Third, the panel held that the Gather Plan did not exhibit “unique characteristics;” and BLM’s determination that the gather area was not in close “proximity to historic or cultural resources” was not arbitrary or capricious. Fourth, the panel held that the Gather Plan did not establish a “precedent” for future actions where the plan did not establish gelding as an accepted population management tool, nor was it the first instance of BLM’s releasing geldings to the range. ...
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