Case 2:16-cv-01650-SU
Document 2
Filed 08/15/16
Page 1 of 47
William Nicholson Lawton, OSB 143685 William S. Eubanks II
[email protected] [email protected] Meyer Glitzenstein & Eubanks LLP 4115 Wisconsin Avenue, N.W. Suite 210 Washington, DC 20016 Tel: (202) 588-5206 x 107 Fax: (202) 588-5049 Attorney for Plaintiffs
UNITED STATES DISTRICT COURT DISTRICT OF OREGON PENDLETON DIVISION
GINGER KATHRENS, et al., Plaintiffs,
Case No. ___________ PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION
v. SALLY JEWELL, et al.,
ORAL ARGUMENT REQUESTED EXPEDITED HEARING REQUESTED
Defendants.
Pursuant to Rule 65 of the Federal Rules of Civil Procedure, Plaintiffs Ginger Kathrens, The Cloud Foundation, American Wild Horse Preservation Campaign, and Deniz Bolbol hereby move for a preliminary injunction to halt the Defendant Bureau of Land Management’s (“BLM”) imminent wild horse sterilization experiments in Hines, Oregon, which are scheduled to begin on October 1, 2016. Pursuant to Local Rule 7-1(a), the parties made a good faith effort to resolve this dispute, but have been unable to do so.
Plaintiffs’ Motion for Preliminary Injunction – 1
Case 2:16-cv-01650-SU
Document 2
Filed 08/15/16
Page 2 of 47
On July 20, 2016, Plaintiffs submitted a request to observe BLM’s experiments, explaining that they have a First Amendment right to do so and a strong interest in helping the BLM achieve its stated goal of assessing whether BLM’s experimental wild horse sterilization methods are “socially acceptable” by publicly disseminating footage and/or first-hand accounts of BLM’s experiments. After BLM rejected Plaintiffs’ request on July 28, 2016 by denying any public observation of these experiments, on July 29, 2016 Plaintiffs submitted a revised request for access to remotely observe the experiments using small, unobtrusive cameras. On August 4, 2016, BLM denied this request as well. As explained in the accompanying memorandum, BLM’s denial of public observation of its experiments violates the First Amendment. Additionally, BLM has not offered a legally adequate explanation for its denial of access, as required by the Administrative Procedure Act, 5 U.S.C. § 706(2). Plaintiffs have attempted to provide the Court with as much time as possible to consider these issues before BLM’s October 1, 2016 start date for these experiments. To begin with, Plaintiffs’ counsel repeatedly informed BLM and opposing counsel of Plaintiffs’ intent to file a lawsuit in the event that BLM chose to deny public access to these experiments. Similarly, Plaintiffs’ counsel reached out to the United States Department of Justice (“DOJ”) repeatedly, beginning on August 1, 2016, to inform opposing counsel that an adverse decision by BLM would force Plaintiffs to seek a preliminary injunction and that it would be necessary to agree on an expedited briefing schedule to provide the Court sufficient time to consider the issues. Plaintiffs also explained that if BLM were willing to push back its “tentative” start date for its experiments, Plaintiffs would agree to a more relaxed briefing schedule to provide the Court additional time to consider the issues. On August 8, 2016, after receiving BLM’s second denial of access, Plaintiffs reiterated to DOJ their intent to seek a preliminary injunction, with a filing
Plaintiffs’ Motion for Preliminary Injunction – 2
Case 2:16-cv-01650-SU
Document 2
Filed 08/15/16
Page 3 of 47
date of August 15, 2016, and proposed an expedited briefing schedule. On August 15, 2016, having not heard back from DOJ concerning whether it consents to the proposed briefing schedule, Plaintiffs reached out to DOJ by telephone, at which time opposing counsel stated that DOJ would not consider the proposed schedule until after Plaintiffs filed this motion and DOJ could review the claims contained therein. Because the parties have not yet been able to agree on a briefing schedule, and given the time-sensitive nature of the claims contained herein, Plaintiffs hereby respectfully request that the Court establish the following schedule—which is identical to the schedule Plaintiffs proposed to the DOJ more than one week ago. In light of the fact that due to other, unavoidable obligations, Plaintiffs will not be available for a hearing on this motion from September 19–26, 2016, Plaintiffs respectfully request that the Court schedule a hearing during the week of September 12, 2016. In order to have the issues fully briefed by then, and in light of Local Rule 7-1(e), Plaintiffs respectfully request the Court to establish the following schedule:
Plaintiffs file their opening motion and memorandum: August 15, 2016
Defendants file their response: August 29, 2016
Plaintiffs file their reply: September 7, 20161
/s/ William N. Lawton___ William N. Lawton
[email protected] Oregon Bar No. 143685 Meyer Glitzenstein & Eubanks LLP 4115 Wisconsin Ave. NW, Suite 210 Washington, DC 20016 (202) 588-5206 (phone) / (202) 588-5409 (fax) 1
Although Local Rule 7-1(e) would provide Plaintiffs with 14 days to file a reply, or until September 12, 2016, Plaintiffs propose this narrower timeline in order to give the Court time to consider the issues before a hearing on the week of September 12. Plaintiffs’ Motion for Preliminary Injunction – 3
Case 2:16-cv-01650-SU
Document 2
Filed 08/15/16
Page 4 of 47
/s/ William S. Eubanks II__ William S. Eubanks II (pro hac vice pending)
[email protected] D.C. Bar No. 987036 Meyer Glitzenstein & Eubanks LLP 245 Cajetan Street Fort Collins, CO 80524 (970) 703-6060 (phone) / (202) 588-5409 (fax) Counsel for Plaintiffs
Plaintiffs’ Motion for Preliminary Injunction – 4
Case 2:16-cv-01650-SU
Document 2
Filed 08/15/16
Page 5 of 47
William Nicholson Lawton, OSB 143685 William S. Eubanks II, pro hac vice application forthcoming
[email protected] [email protected] Meyer Glitzenstein & Eubanks LLP 4115 Wisconsin Avenue, N.W. Suite 210 Washington, DC 20016 Tel: (202) 588-5206 x 107 Fax: (202) 588-5049 Counsel for Plaintiffs
UNITED STATES DISTRICT COURT DISTRICT OF OREGON PENDLETON DIVISION
GINGER KATHRENS, et al., Plaintiffs, v. SALLY JEWELL, et al., Defendants.
Case No. ___________ PLAINTIFFS’ MEMORANDUM IN SUPPORT OF THEIR MOTION FOR PRELIMINARY INJUNCTIVE RELIEF
Case 2:16-cv-01650-SU
Document 2
Filed 08/15/16
Page 6 of 47
TABLE OF CONTENTS TABLE OF CONTENTS ................................................................................................................. i TABLE OF AUTHORITIES ......................................................................................................... iii INTRODUCTION .......................................................................................................................... 1 BACKGROUND ............................................................................................................................ 3 I.
RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS ......................... 3 A.
The First Amendment ..................................................................................................... 3
B.
The Administrative Procedure Act ................................................................................. 4
C.
The Wild Free-Roaming Horses and Burros Act ............................................................ 4 BLM’S STERILIZATION EXPERIMENTS ..................................................................... 5
II. A.
Sterilizing Wild Horses Is Extremely Controversial. ..................................................... 5
B.
BLM’s Sterilization Experiments ................................................................................... 7
C.
The Public Opposes BLM’s Sterilization Experiments. ................................................. 9
D.
BLM’s Decision To Conduct These Controversial Experiments ................................. 10
III. BLM’S DENIAL OF ACCESS TO OBSERVE ITS STERILIZATION EXPERIMENTS ............................................................................................................... 11 ARGUMENT ................................................................................................................................ 13 I.
PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS, OR AT MINIMUM HAVE RAISED SERIOUS QUESTIONS AS TO THE MERITS. ................................. 14 A.
Plaintiffs Have A First Amendment Right Of Access To Observe and Document BLM’s Management of Wild Horse Populations. ........................................................ 14 1.
Wild Horse Population Management Has Historically Been Open To The Public. 15
2.
Public Access Has Played A Significant Role In Shaping Wild Horse Population Management. ........................................................................................................... 18
3.
BLM Cannot Justify Its Denial Of Public Access. ................................................. 21
4.
BLM’s Denial of Public Access Is Not Narrowly Tailored. ................................... 24
PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION – i
Case 2:16-cv-01650-SU
Document 2
Filed 08/15/16
Page 7 of 47
BLM’s Decision to Deny Public Access Is Arbitrary and Capricious.......................... 25
B. 1.
BLM’s denial of public observation is arbitrary and capricious because it failed to consider how allowing public observation would further the agency’s own goals. 25 a. BLM failed to consider whether public observation would help determine whether experimental procedures are “socially acceptable.” ............................................... 25 b. BLM failed to consider whether additional post-surgical monitoring would promote the humane care of wild horses. ............................................................... 27
2.
II.
BLM’s denial of public access is arbitrary and capricious because none of its purported justifications have any basis in fact or logic........................................... 28
PLAINTIFFS WILL SUFFER IRREPARABLE HARM ABSENT AN INJUNCTION, AND NO REMEDY AT LAW WILL AMELIORATE THAT HARM. ......................... 30 A.
BLM’s Denial Of Access Infringes Plaintiffs’ First Amendment Rights And Impairs Their Ability To Inform The Public About BLM’s Treatment of Wild Horses. .......... 30
B.
BLM’s Limited Grant Of Observation Access Or Information Will Not Cure The Harm To Plaintiffs’ Interests................................................................................................... 34
III. THE BALANCE OF THE EQUITIES TIPS STRONGLY IN PLAINTIFFS’ FAVOR AND THE PUBLIC INTEREST FAVORS AN INJUNCTION. ..................................... 35 CONCLUSION ............................................................................................................................. 37
PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION – ii
Case 2:16-cv-01650-SU
Document 2
Filed 08/15/16
Page 8 of 47
TABLE OF AUTHORITIES Cases Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) ................................................................................................. 14 American Wild Horse Preservation Campaign v. Salazar, 800 F. Supp. 2d 270 (D. D.C. 2011) ..................................................................................... 6, 20 American Wild Horse Preservation Campaign v. Salazar, 859 F. Supp. 2d 33 (D.D.C. 2012) ........................................................................................ 6, 20 Ariz. Cattle Growers Ass’n v. U.S. Fish & Wildlife Serv., 273 U.S. 1229 (9th Cir. 2001)..................................................................................................... 4 Asarco, Inc. v. U.S. Envtl. Prot. Agency, 616 F.2d 1153 (9th Cir. 1980) ................................................................................................. 28 Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656 (2004) ................................................................................................................. 30 Associated Press v. Otter, 682 F.3d 821 (2012) ................................................................................................................. 34 Cal. First Amend. Coal. v. Woodford, 299 F.3d 868 (9th Cir. 2002) ................................................................................. 17, 18, 34, 35 Ctr. for Biological Diversity v. Nat’l Highway Traffic Safety Admin., 538 F.3d 1172 (9th Cir. 2008) ............................................................................................. 4, 28 Doe v. Harris, 772 F.3d 563 (9th Cir. 2014) ................................................................................................... 30 Elrod v. Burns, 427 U.S. 347 (1976) ................................................................................................................. 30 Fund for Animals v. Clark, 27 F. Supp. 2d 8 (D.D.C. 1998) ............................................................................................... 36 In Def. of Animals v. U.S. Dept. of Interior, 751 F.3d 1054 (9th Cir. 2014) ....................................................................................... 5, 18, 19 Klein v. City of San Clemente, 584 F.3d 1196 (9th Cir. 2009) ..................................................................................... 30, 31, 35
PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION – iii
Case 2:16-cv-01650-SU
Document 2
Filed 08/15/16
Page 9 of 47
Leigh v. Salazar, 677 F.3d 892 (9th Cir. 2012) ..................................................................................... 2, 3, 15, 21 Leigh v. Salazar, 954 F. Supp. 2d 1090 (D. Nev. 2013) ................................................................................ 15, 19 Motor Vehicle Mfrs. Assn. of U.S. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29 (1981) ..................................................................................................................... 4 OTR Wheel Engineering, Inc. v. W. Worldwide Servs., Inc., 602 Fed. Appx. 669 (9th Cir. 2015) ................................................................................... 14, 30 Press-Enterprise Co. v. Superior Court (Press-Enterprise II) 478 U.S. 1 (1986) ............................................................................................................... passim Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) ................................................................................................................. 14 Seattle Times Co. v. U.S. Dist. Ct. for W. Dist. of Wash., 845 F.2d 1513 (9th Cir. 1988) ................................................................................................. 15 Warsoldier v. Woodford, 418 F.3d 989 (9th Cir. 2005) ................................................................................................... 30 Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008) ...................................................................................................................... 13 Statutes 5 U.S.C. § 706(2)(A)....................................................................................................................... 4 16 U.S.C. § 1331 ......................................................................................................................... 2, 4 16 U.S.C. § 1333(b) ............................................................................................................ 5, 15, 26 16 U.S.C. § 1337 ....................................................................................................................... 5, 26
PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION – iv
Case 2:16-cv-01650-SU
Document 2
Filed 08/15/16
Page 10 of 47
INTRODUCTION This case challenges a decision by the United States Bureau of Land Management (“BLM”) to deny public access to observe and document new, controversial experiments the agency plans to perform on 225 wild horses BLM has removed from the wild. The experiments will occur in a BLM corral facility in Hines, Oregon (“the Hines Corral”) as early as October 1, 2016, and will involve sterilizing mares in three ways to “determine” whether such methods are “socially acceptable” to the public and can thus become routine wild horse population management tools for use on the range. Plaintiffs are individuals and organizations with extensive experience observing, documenting, and publicly disseminating information about BLM’s management of wild horses in order to effectively advocate for humane, responsible, and transparent management of these federally protected wild animals. Plaintiff Ginger Kathrens is an Emmy Award-winning wild horse documentarian, the Humane Advocate on the National Wild Horse and Burro Advisory Board, and the founder and executive director of Plaintiff The Cloud Foundation, a 501(c)(3) non-profit that advocates for the humane treatment, preservation, and management of wild horses on and off the range. Ex. A, Kathrens Decl., ¶ 1. Plaintiff American Wild Horse Preservation Campaign (“AWHPC”) is a 501(c)(3) non-profit dedicated to conservation and humane management of wild horses. Ex. B, Roy Decl., ¶ 1. Plaintiff Deniz Bolbol is an AWHPC employee with a history of observing, and documenting BLM’s actions to effectively advocate for humane wild horse management. Ex. C, Bolbol Decl., ¶¶ 1–6. BLM’s new sterilization experiments are its latest effort to fundamentally transform its Wild Horse and Burro Program by moving from management based on publicly accessible wild horse roundups to management involving routine wild horse sterilization. In the 45 years since Congress enacted the Wild Free-Roaming Horses and Burros Act (“WHA”), 16 U.S.C. §§ 1331-
PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION – 1
Case 2:16-cv-01650-SU
Document 2
Filed 08/15/16
Page 11 of 47
1340, in 1971, BLM’s wild horse population management has always been publicly accessible, and public oversight has proven crucial in monitoring BLM’s compliance (or lack thereof) with the WHA’s statutory obligations and in promoting humane, responsible wild horse population management. However, in BLM’s radical pivot towards permanent wild horse sterilization, it is now attempting to move its management of these “living symbols of the historic and pioneer spirit of the West,” id. § 1331, behind closed doors—where the public cannot witness what BLM is actually doing to the horses and cannot independently assess whether BLM’s procedures are humane. Thus, the public generally, and Plaintiffs in particular, are now being denied the opportunity to serve their historically important role in promoting responsible, transparent, and humane wild horse management. BLM’s denial of public access to observe and document its wild horse sterilization experiments violates the First Amendment. Because BLM’s wild horse population management has historically been open to the press and public, and because public access plays an important role in shaping wild horse population management, the First Amendment protects Plaintiffs’ right to observe this government activity, and any access restrictions must be narrowly tailored to serve an overriding government interest. See Leigh v. Salazar, 677 F.3d 892, 898 (9th Cir. 2012). Because BLM cannot meet this stringent standard, its denial of public access to observe and document its sterilization experiments violates the First Amendment and must be overturned. BLM’s denial of public access must also be set aside because it is arbitrary and capricious for two reasons. First, despite Plaintiffs’ explanations that public observation would further BLM’s own goals—i.e. determining the procedures’ “social acceptability”—BLM denied Plaintiffs’ requests without even considering this important issue. And second, to support its decision, BLM offered only conclusory justifications that lack any basis in fact or logic.
PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION – 2
Case 2:16-cv-01650-SU
Document 2
Filed 08/15/16
Page 12 of 47
Preliminary injunctive relief is appropriate because Plaintiffs are likely to succeed on the merits, BLM’s denial of access irreparably harms Plaintiffs, and the public interest and the balance of the equities weigh strongly in favor of an injunction preserving the status quo until the Court can fully resolve this case on its merits. BACKGROUND I.
RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS A.
The First Amendment
“[T]he Supreme Court has long recognized a qualified right of access for the press and public to observe government activities” protected by the First Amendment. Leigh, 677 F.3d at 898. This right is rooted in the fact that “[o]pen government has been a hallmark of our democracy since our nation’s founding” and that constitutionally protected “transparency has made possible the vital work of . . . countless [] investigative journalists who have strengthened our government by exposing its flaws.” Id. at 897. Because “[t]he free press is the guardian of the public interest, and the independent judiciary is the guardian of the free press[,] . . . courts have a duty to conduct a thorough and searching review of any attempt to restrict public access.” Id. at 900. The judiciary’s scrutiny is especially important because “[w]hen wrongdoing is underway, officials have great incentive to blindfold the watchful eyes of the Fourth Estate.” Id. Accordingly, “a court cannot rubberstamp an access restriction simply because the government says it is necessary.” Id.
PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION – 3
Case 2:16-cv-01650-SU
B.
Document 2
Filed 08/15/16
Page 13 of 47
The Administrative Procedure Act
Under the Administrative Procedure Act (“APA”), courts “shall . . . hold unlawful and set aside agency action, findings, and conclusions of law found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Agency action is arbitrary and capricious if the agency “entirely failed to consider an important aspect of the problem,” Motor Vehicle Mfrs. Assn. of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1981), or if the agency relies on “conclusory assertions” “unaccompanied by any . . . supporting data,” Ctr. for Biological Diversity v. Nat’l Highway Traffic Safety Admin., 538 F.3d 1172, 1223–24 (9th Cir. 2008). Courts reviewing agency action must “ensure that agency decisions are founded on a reasoned evaluation of the relevant factors” and “must not rubberstamp administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute.” Ariz. Cattle Growers Ass’n v. U.S. Fish & Wildlife Serv., 273 U.S. 1229, 1236 (9th Cir. 2001) (quotations and citations omitted). C.
The Wild Free-Roaming Horses and Burros Act
In response to overwhelming public outcry over the inhumane treatment and slaughter of wild horses on the public range, Congress passed the WHA in 1971 to ensure that “wild freeroaming horses and burros shall be protected from capture, branding, harassment, [and] death.” 16 U.S.C. § 1331. 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.” Id. The WHA embodies a congressional intent to require BLM to manage wild horse populations humanely. Congress repeatedly stressed its intent to require humane management. See id. § 1333(b)(2)(iv)(B) (requiring that BLM ensure that wild horses removed from the range
PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION – 4
Case 2:16-cv-01650-SU
Document 2
Filed 08/15/16
Page 14 of 47
are “humanely captured” and that BLM “assure [the] humane treatment and care” of wild horses made available for adoption”).1 To ensure that BLM honors the WHA’s commitment to humane wild horse management, Congress instructed BLM to regularly consult with experts in wild horse protection. To that end, Congress required BLM to create the National Wild Horse and Burro Advisory Board to include individuals with “special knowledge about protection of horses and burros” who can “advise [the agency] on any matter relating to wild free-roaming horses and burros and their management and protection.” 16 U.S.C. § 1337. Thus, Congress specifically stated that BLM “shall consult with . . . individuals whom [it] determines have . . . special knowledge of wild horse and burro protection” when determining whether to manage wild horse populations “by the removal or destruction of excess animals, or other options (such as sterilization, or natural controls on population levels).” Id. § 1333(b)(1) (emphasis added). Thus, Congress clearly intended BLM to consider the informed input of experts in “wild horse and burro protection” when considering the possibility of sterilizing wild horses. II.
BLM’S STERILIZATION EXPERIMENTS A.
Sterilizing Wild Horses Is Extremely Controversial.
Sterilizing wild horses is highly controversial, because it “robs them of their defining behaviors which will fundamentally change the organization and behavior of wild horse herds.” Kathrens Decl., ¶ 16. Because of sterilization’s extremely negative effects, on July 28, 2011, sixty-five members of Congress sent a letter to the Secretary of the Interior specifically opposing BLM’s plans to sterilize wild horses and describing it as a “drastic, inhumane practice.” Ex. D at
1
See also In Def. of Animals v. U.S. Dept. of Interior, 751 F.3d 1054, 1060 n.6 (9th Cir. 2014) (noting that although the WHA initially contemplated the “destruction” of wild horses, Congress has never authorized the use of funds for wild horse slaughter). PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION – 5
Case 2:16-cv-01650-SU
Document 2
Filed 08/15/16
Page 15 of 47
3. Indeed, BLM’s Environmental Assessment (“EA”) for its upcoming experiments acknowledges that “the public has participated in the long-running discussion of wild mare sterilization for multiple years,” Ex. E at 54, and that public opposition to permanent wild horse sterilization “stem[s] from the appreciation and admiration most people have for the horse . . . [and their] immense cultural value as symbols of grace, beauty, companionship, and courage,” id. at 48 (emphasis added). Thus, one of BLM’s principal goals is determining whether the experimental sterilization methods are a “socially acceptable” way to manage wild horse populations. Id. at 53. Indeed, as AWHPC’s Executive Director explains, “[i]n recent years, BLM has been attempting to move from a wild horse population management strategy based solely on roundups to a system that implements permanent sterilization of these federally protected wild animals as a routine management tool.” Roy Decl. ¶ 9. Members of the public, including Plaintiffs, have strenuously opposed this radical change in BLM’s wild horse management. For example, Plaintiff AWHPC “successfully led the BLM to abandon [its] past efforts [to sterilize wild horses] through extensive public outreach, public comments, and ultimately litigation.” Roy Decl. ¶ 9; see also Kathrens Decl. ¶ 11; AWHPC v. Salazar, 800 F. Supp. 2d 270, 271 (D. D.C. 2011) (finding moot a challenge to a withdrawn agency decision to geld wild stallions); AWHPC v. Salazar, 859 F. Supp. 2d 33, 47 (D.D.C. 2012) (requiring BLM to include evidence about sterilization’s impacts in the administrative record for a decision to sterilize wild horses).2
2
After the district court held that BLM had to consider scientific evidence submitted by AWHPC about sterilization’s adverse effects, BLM withdrew its decision to geld wild stallions. PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION – 6
Case 2:16-cv-01650-SU
B.
Document 2
Filed 08/15/16
Page 16 of 47
BLM’s Sterilization Experiments
Nevertheless, undeterred by public opposition and legal defeats, BLM continues its effort to use permanent sterilization as a routine wild horse population management tool. The upcoming experiments at the Hines Corral are the most recent, but not the only, example of BLM’s determination to sterilize wild horses on the open range. Indeed, BLM chose the experimental procedures at the Hines Corral precisely because it believes these “mare sterilization methods [] have potential for future application in the field.” Ex. E at 50 (emphasis added). These experiments will directly impact BLM’s upcoming sterilization of wild mares in Rock Springs, Wyoming in 2017. Id. at 51. Additionally, BLM plans to permanently sterilize an entire herd of wild horses in Idaho,3 and the experiments at the Hines Corral will likely also guide that plan’s implementation. BLM plans to begin the Hines Corral experiments as early as October 1, 2016. Ex. F at 1. As many as 225 wild mares will undergo three experimental procedures: at least 50 will undergo tubal ligations, Ex. E, at 21; at least 50 will undergo hysteroscopically guided laser ablations, id. at 27; and at least 100 wild mares, 75 of which will be pregnant, will endure ovariectomies via colpotomy, id. at 16. These procedures, especially ovariectomy via colpotomy, entail significant risks, including injury or death of mares, and abortions of the foals they are carrying. Ex. G, Kelly Decl., ¶ 4; Ex. H, Corey Decl., ¶ 6. Tubal ligation is a surgical procedure that involves inserting an endoscope through an incision in the wall of a mare’s vagina in order to sever the mare’s oviduct with an electric current. Ex. E at 17. According to BLM, although tubal ligation is “commonly performed in
3
See Record of Decision, Jarbidge Resource Management Plan, at ROD-8, available at https://eplanning.blm.gov/epl-front-office/projects/lup/36856/62721/67973/05_Record_ of_Decision.pdf (noting that BLM decided to create a “non-reproducing herd” of wild horses). PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION – 7
Case 2:16-cv-01650-SU
Document 2
Filed 08/15/16
Page 17 of 47
humans . . . [it] has not been commonly performed on mares.” Id. at 40. BLM intends to perform this procedure on 10–15 non-pregnant mares and 30–45 pregnant mares in order to assess whether the procedure effectively sterilizes mares and how often the procedure leads pregnant mares to abort their foals. Id. at 21. Hysteroscopically guided laser ablation is a procedure that involves inserting an endoscope into a mare’s vagina and past its cervix in order to use a laser to burn and scar the entry to the oviduct. Id. at 26-27. “This procedure is new; there are no known studies using this technique to permanently sterilize wild or domestic mares.” Id. at 29. BLM intends to perform this procedure on 50 non-pregnant mares, to assess how effectively it sterilizes them. Id. This procedure is unsuitable for pregnant mares because it leads to abortion, which limits its applicability in the field where most mares captured in roundups are pregnant. Ovariectomy via colpotomy is the most risky and invasive of the three procedures that BLM intends to perform. This procedure involves reaching inside a mare’s abdominal cavity through an incision in the vaginal wall—without any tool to visualize the mare’s organs—to identify her ovaries by touch and to remove them by severing them with a loop of chain. Id. at 14–15. In contrast to this blind procedure, “the safest procedure involves the use of a laparoscope that allows the surgeon to visualize the entire procedure.” Kelly Decl. ¶ 4. According to Dr. Robin Kelly, a veterinarian with extensive experience operating on wild horses, this procedure “is extremely risky due to its blind nature . . . [and i]t is inherently difficult for a surgeon to avoid severing other organs, including the bowel, and causing severe infection and internal bleeding during this blind approach.” Id. This procedure is especially risky for pregnant mares, because “ovariectomy via colpotomy is likely to cause the abortion of the pregnant
PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION – 8
Case 2:16-cv-01650-SU
Document 2
Filed 08/15/16
Page 18 of 47
mare’s fetus and result in the death of the mare.” Id. Due to these risks, “[t]he veterinary community avoids ovariectomy via colpotomy as a method for spaying mares.” Id. C.
The Public Opposes BLM’s Sterilization Experiments.
Numerous individuals and organizations, including AWHPC and The Cloud Foundation, submitted comments on BLM’s EA for this project explaining that BLM should not conduct experiments on this risky, invasive, blind procedure. Even the United States Cattlemen’s Association—which represents livestock interests that directly compete with wild horses— described this procedure as “the methods proposed,” explained that it “expect[s] the mortality rate to be much higher” than BLM anticipates, and stated that it “does not support” BLM’s experiments. Ex. I, Comments. of U.S. Cattlemens’ Ass’n, at 2. A National Academy of Sciences (“NAS”) research panel also expressed deep concerns about ovariectomy via colpotomy and recommended against BLM spending research funds on this procedure. Ex. E at 108. The NAS panel noted this procedure could result in higher fatalities than reported in scientific literature and that the other two experimental procedures “would be safer—with less risk of hemorrhage and evisceration—and probably less painful” and thus “should replace . . . ovariectomy via colpotomy as surgical approaches for permanent sterilization.” Id. The NAS panel also stated that BLM’s experiments “contain no science or experimentation related to technique” and that “the only novelty in this proposal is that the procedure would be performed on free-ranging rather than domestic horses.” Id. Because wild and domestic horses are the same species, and differentiated chiefly by behavior, the NAS panel “did not consider this difference to be a matter of research.” Id. Thus, the NAS found no scientific merit in the BLM’s experiment on this procedure.
PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION – 9
Case 2:16-cv-01650-SU
D.
Document 2
Filed 08/15/16
Page 19 of 47
BLM’s Decision To Conduct These Controversial Experiments
Over objections from wild horse advocates, the livestock industry, and the National Academy of Sciences, BLM chose to proceed with experiments on ovariectomy via colpotomy and the other two procedures. BLM disregarded the NAS’s objections because “the surgical complications of performing this technique on wild horse mares at various gestational stages has not been well documented.” Id. at 5. In other words, BLM acknowledges that this procedure will cause complications—including injury, death, and abortion—and is conducting this experiment on 100 wild mares for the express purpose of determining how much pain the mares will endure, how often pregnant mares will be injured or die, and how often their foals will be aborted. See id. at 21 (noting that data on “whether the procedure is appropriate for future applications” include the mares’ “comfort level,” “surgical or post-surgical complications,” and the incidence of abortion). BLM’s principal goal for the Hines Corral experiments is to help answer what it describes as “[t]he ultimate question in the reasonably foreseeable future of wild horse population management”—namely, “which [sterilization] methods are safe, effective, and socially acceptable.” Id. at 53. Indeed, BLM repeatedly emphasized that these experiments aim to assess these procedures’ “social acceptability.” See, e.g., id. at 47 (“BLM has the challenging task of choosing wild horse population control methods that are ecologically viable, financially viable, and socially acceptable”); id. at 51 (“Results from the studies under the proposed action would aid in determining the social acceptability of each procedure”); id. at 54 (“The results of this study are expected to aid BLM in determining the social acceptability of each procedure.”).
PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION – 10
Case 2:16-cv-01650-SU
III.
Document 2
Filed 08/15/16
Page 20 of 47
BLM’S DENIAL OF ACCESS TO OBSERVE ITS STERILIZATION EXPERIMENTS “The best way to determine whether the public believes a management practice is
humane—and thus socially acceptable—is to actually show the public what is really happening to wild horses and to listen to the reactions of members of the public.” Kathrens Decl. ¶¶ 22, 28; see also Bolbol Decl. ¶ 12 (“AWHPC’s key organizational tool is using media to show the public what actually happens to wild horses, since this is the most effective way of getting the public interested enough to share their opinions.”). Plaintiffs have a proven record of showing the public what happens to wild horses at the BLM’s hands to demonstrate that the public will not accept inhumane treatment of wild horses. For example, after Plaintiff Deniz Bolbol recorded inhumane treatment of wild horses during a BLM roundup in 2011 and disseminated her recordings over the internet, “[n]umerous members of the public contacted [her] to tell [her] that the footage opened their eyes to BLM’s inhumane treatment of wild horses and had a profound effect on their perspective of BLM and its management of federally protected wild horses.” Bolbol Decl. ¶ 6. Partly due to the consequent “growing public concern over the inhumane practices at the roundups,” BLM in 2015 issued a new Comprehensive Animal Welfare Program that prohibited or restricted inhumane actions Ms. Bolbol had recorded. Id.; see also Kathrens Decl. ¶¶ 10–13 (describing how public outcry drove bans on wild horse slaughter, state policies promoting humane wild horse treatment, and the enactment of the WHA). Thus, “AWHPC has seen the best results—in terms of encouraging public comments, engaging policy makers, securing media coverage and helping to promote more humane wild horse management policies—when we have been able to back up our advocacy with photographs and videos of actual, on-the-ground wild horse management techniques.” Roy Decl. ¶ 7 PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION – 11
Case 2:16-cv-01650-SU
Document 2
Filed 08/15/16
Page 21 of 47
On July 20, 2016, Plaintiffs’ counsel sent a letter to BLM requesting access to observe and document BLM’s upcoming experiments at the Hines Corral. Ex. J. The letter explained that Plaintiffs were motivated to observe the experiments “particularly because BLM is conducting this research to determine the ‘social acceptability’ of these procedures.” Id. at 1. Plaintiffs’ counsel also explained that Plaintiffs have a constitutionally protected right to view this government activity, and that they “have a long history of observing and promoting public awareness” of BLM’s wild horse population management, which “has taken on increasing importance” as BLM pivots toward routine sterilization. Id. at 2-3. Plaintiffs further explained that “[g]iven that these experiments will shape the BLM’s program-wide policies, public documentation of this project is essential.” Id. at 1. BLM denied Plaintiffs’ requests for access to observe these experiments. Ex. F at 1. As purported justifications—which, as discussed below, lack any factual or logical basis—BLM stated that it would not allow any observation of the experiments because of “limited space” in the Hines Corral and the need for a “minimally disruptive working environment.” Id. BLM stated that the presence of observers would distract the researchers, placing horses and veterinarians in danger. Id. Although BLM will allow observation of mares in post-surgical recovery and issue “daily reports” about surgeries, these are wholly inadequate substitutes for public observation, BLM said nothing about how public observation could help assess the experimental procedures’ social acceptability. See generally id. Although Plaintiffs did not agree with BLM’s conclusory justifications—which did not align with their experience at the Hines Corral or their knowledge of the routine nature of observation of veterinary procedures—Plaintiffs’ counsel sent a revised request to remotely observe the procedures via cameras without any observer physically present during the
PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION – 12
Case 2:16-cv-01650-SU
Document 2
Filed 08/15/16
Page 22 of 47
experiments. Ex. K. Plaintiffs offered to pay for and install these cameras and explained that using “small, unobtrusive cameras . . . would eliminate each concern the BLM raised when it denied [their] initial request.” Id. at 2. Plaintiffs explained that cameras “would not take up a significant amount of the ‘limited space’ in the Hines Corral . . . [nor] cause any stress to horses, nor place horses in any type of danger, nor threaten the sustained concentration of researchers.” Id. Instead, the use of these cameras would promote BLM’s goals “by allowing the public to see and opine on what these procedures actually entail for wild horses.” Id. BLM again denied Plaintiffs’ request. Ex. L. With no citation or further explanation, BLM asserted that the mere presence of cameras “can be distracting” and argued that publicly releasing video recordings “could jeopardize the review process for any peer-reviewed publications anticipated from this research.” Id. at 1. BLM stated that denying any public observation “ensures that the horses will have the best possible care during the surgeries and monitoring periods.” Id. Again, BLM offered no response to Plaintiffs’ explanation that “public observation (whether live or remote) would further BLM’s goal of assessing these procedures ‘social acceptability’ by allowing the public to see and opine on what these procedures actually entail for wild horses.” Ex. K at 2. ARGUMENT “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008). The Ninth Circuit applies a “sliding scale” to find that “[a] preliminary injunction is appropriate when a plaintiff demonstrates that serious questions going to the merits were raised and the balance of hardships tips sharply in the
PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION – 13
Case 2:16-cv-01650-SU
Document 2
Filed 08/15/16
Page 23 of 47
plaintiff’s favor.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131–32 (9th Cir. 2011). These factors all weigh heavily in favor of granting Plaintiffs’ motion for injunctive relief to preserve the status quo until the Court can decide the case on its merits. See id. at 1134 (noting “the longstanding discretion of a district judge to preserve the status quo with provisional relief”). I.
PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS, OR AT MINIMUM HAVE RAISED SERIOUS QUESTIONS AS TO THE MERITS. Under the Ninth Circuit’s “sliding scale,” a preliminary injunction is appropriate when
the balance of the equities tips sharply in a plaintiff’s favor and the plaintiff has raised “serious questions going to the merits—a lesser showing than likelihood of success on the merits.” OTR Wheel Engineering, Inc. v. W. Worldwide Servs., Inc., 602 Fed. Appx. 669, 671 (9th Cir. 2015). “Serious questions need not promise a certainty of success, nor even present a probability of success, but must involve a fair chance of success on the merits.” Id. Plaintiffs easily carry this burden. A.
Plaintiffs Have A First Amendment Right Of Access To Observe and Document BLM’s Management of Wild Horse Populations.
The press and public have a right to access and observe government activities. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 576 (1980). Courts apply a two-pronged test for right-of-access claims, finding that when (1) a government activity has historically been open to the press and public, and (2) the public has played a significant positive role in that government activity, the government may impose only such restrictions as are narrowly tailored to serve an overriding government interest. Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8–9 (1986) (hereinafter “Press Enterprise II”). The Ninth Circuit has expressly held that the Press-
PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION – 14
Case 2:16-cv-01650-SU
Document 2
Filed 08/15/16
Page 24 of 47
Enterprise II test applies to BLM’s wild horse population management. See Leigh, 677 F.3d at 900. 1.
Wild Horse Population Management Has Historically Been Open To The Public.
Although the first prong of the Press Enterprise II test—i.e. whether the “place and process” have historically been accessible—is not necessarily dispositive, see, e.g., Seattle Times Co. v. U.S. Dist. Ct. for W. Dist. of Wash., 845 F.2d 1513, 1516–17 (9th Cir. 1988), Plaintiffs easily satisfy this prong. Since Congress passed the WHA in 1971, BLM has managed wild horse populations principally by rounding up wild horses from public lands when it determines that “excess” horses exist on the range. See 16 U.S.C. § 1333(b)(2) (setting forth the statutory process for roundups). BLM’s wild horse roundups have traditionally been open to the public, and one court in this circuit has found a First Amendment right to observe them. Leigh v. Salazar, 954 F. Supp. 2d 1090, 1101 (D. Nev. 2013) (“[W]ild horse gathers have historically been and remain open to the press and general public.”) (emphasis added). Plaintiffs have observed and documented numerous wild horse roundups, post-roundup holding pens, and related wild horse management activities. See, e.g., Bolbol Decl., ¶¶ 3–5. Indeed, BLM’s own policies recognize the importance of transparency in wild horse population management and provide access to public and media observers. For example, in recognition of “press/media, congressional, and public attention,” BLM has stated that “it is critically important that BLM operate in as open and transparent a manner as possible.” Ex. M, BLM Instruction Memorandum 2013-061, at 2. For this reason, “BLM has a longstanding policy of allowing public/media to view [wild horse] gathers.” Ex. N, BLM Instruction Memorandum
PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION – 15
Case 2:16-cv-01650-SU
Document 2
Filed 08/15/16
Page 25 of 47
2013-058, at 2. BLM’s “policy and procedures” aim to provide “safe and transparent visitation by the public/media” during “every gather day.” Id. at 1. In fact, BLM’s policy and practice promoting public access apply not only to the act of rounding up wild horses but also to trapping, holding, and shipping them. Thus, although wild horses at the trap sites or temporary holding facilities are subject to significant stress, “BLM generally allows members of the public an opportunity to safely view gather operations from designated observation areas near the trap-site and at temporary holding facilities . . . .” Id. Indeed, BLM aims to “ensure that the public/media have opportunities to safely observe gather activities at the trap-site and temporary holding facilities when practicable,” to “select the location that provides the best viewing of activities” as safety permits, and to provide “[o]pportunities for the public/media to visit temporary holding facilities and view the shipping activities . . . to the extent practicable.” Id.; see also Bolbol Decl. ¶ 3 (noting that she has often been permitted to visit temporary holding facilities and to observe shipping activities). Thus, BLM’s long-standing policy and practice has been to provide public access to observe and document wild horse population management even at areas where horses are subject to significant stress. Moreover, the Hines Corral, where BLM’s upcoming sterilization procedures will take place, is open to the public. According to the website that BLM’s Burns District maintains about the facility, “[o]rganized tours of the wild horse corrals and facilities are available upon request . . . for just a few people as well as larger groups.”4 BLM claims to “welcome the opportunity to
4
http://www.blm.gov/or/districts/burns/wildhorse/corral.php.
PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION – 16
Case 2:16-cv-01650-SU
Document 2
Filed 08/15/16
Page 26 of 47
explain the various aspects of the wild horse program.” Id. The Hines Corral’s front gate even proclaims “Visitors Welcome.” Attach. 1 to Kathrens Decl. Plaintiff Ginger Kathrens has visited the Hines Corral on multiple occasions. Kathrens Decl. ¶ 24. Roughly five years ago, Ms. Kathrens visited the Hines Corral to view the facility and assess the BLM’s care of horses kept there. Id. In April 2016, Ms. Kathrens attended a BLM-led tour, during which she was allowed to observe the holding pens and photograph wild horses held there—some of which will likely be subject to upcoming experiments. Id. Ms. Kathrens’ photographs remain available on the Cloud Foundation’s website.5 In a crowd of “[a]t least 15 people,” Ms. Kathrens was also able to observe and photograph a veterinary procedure on a wild horse in the same hydraulic chute where BLM plans to perform its sterilization experiments. Id.; see also id. Attach. 1. That BLM’s upcoming sterilization experiments will not—at this juncture—occur on the range does not diminish the First Amendment rights at stake here. In an analogous context, the Ninth Circuit held that moving executions from public spaces into the more private, regulated forum of prisons did not defeat the First Amendment right to view executions. Cal. First Amend. Coal. v. Woodford, 299 F.3d 868, 873–876 (9th Cir. 2002). Like executions, wild horse population management has historically occurred during “fully open events.” Id. at 875. And like the shift from public executions to lethal injection at issue in Woodford, BLM’s movement toward managing wild horse populations through surgical sterilization shifts to a more medically-based procedure in a more controlled environment.
5
See The Cloud Foundation, Say No To Wild Mare Sterilization (Apr. 18, 2016) http://www.thecloudfoundation.org/take-action/action-alerts/560-action-alert-say-no-to-wildmare-sterilization. PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION – 17
Case 2:16-cv-01650-SU
Document 2
Filed 08/15/16
Page 27 of 47
In Woodford, the Ninth Circuit found it persuasive that “[w]hen executions were moved out of public fora into prisons, the states implemented procedures that ensured executions would remain open to some public scrutiny.” Id. at 875 (emphasis added). So too here; when BLM moves horses from the public range into traps or temporary holding facilities, its policy is to provide “[o]pportunities for the public/media to visit temporary holding facilities and view the shipping activities.” Ex. N at 1. Similarly, even at the Hines Corral, BLM intends to allow public observation of mares in post-surgical recovery. Ex. F at 1–2; Ex. L at 1. Therefore, as the Ninth Circuit found in Woodford, “a tradition of at least limited public access” was sufficient to conclude that “historical tradition strongly supports the public’s First Amendment right” to observe executions. 299 F.3d at 875-76. Hence, BLM’s provision of access to view wild horse population management, even at restrictively regulated sites where horses undergo stressful activities, demonstrates that Plaintiffs have a First Amendment right to observe BLM’s wild horse population management experiments at the Hines Corral. 2.
Public Access Has Played A Significant Role In Shaping Wild Horse Population Management.
Plaintiffs also easily satisfy the Press Enterprise II test’s second prong. Public input has driven, and continues to drive, federal regulation and management of wild horse populations. In fact, the unanimous passage of the WHA in 1971 by both houses of Congress resulted from public outcry over inhumane treatment of wild horses. Kathrens Decl. ¶ 13. Since then, public input has driven development of policies and practices that emphasize humane, responsible, and transparent wild horse population management. For example, due to public opposition to wild horse slaughter, “although the Act authorizes the ‘humane’ destruction of excess healthy wild horses and burros, Congress has prohibited the authorization of funds to be spent to do so.” In
PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION – 18
Case 2:16-cv-01650-SU
Document 2
Filed 08/15/16
Page 28 of 47
Def. of Animals, 751 F.3d at 1060 n.6. Indeed, due to public opposition, Congress has never authorized funds for the destruction of wild horses. Id. at 1059 n.3. Observation and documentation of wild horses and their treatment at BLM’s hands has also been critical to generating public interest in wild horses’ welfare. For example, Plaintiff Ginger Kathrens, whose Emmy-Award-winning documentaries on wild horses have been compared to Jane Goodall’s work with chimpanzees, Kathrens Decl. ¶ 2, and who has recorded numerous BLM-led wild horse roundups, id. ¶ 5, explains that “[t]he single most effective way to mobilize the public and achieve positive change is to show and keep them updated as to what is actually happening to wild horses under BLM’s management,” id. ¶ 4; see also Roy Decl. ¶ 7. Public observation of BLM’s roundups, which have historically been its principal method for managing wild horse populations, “plays a significant positive role in the function of gather activities” because “public access allows individuals to report on the government’s activities as well as the health and condition of the gathered horses.” Leigh, 954 F. Supp. 2d at 1101. For example, in 2011, Plaintiff Deniz Bolbol recorded footage at a BLM roundup of an official slamming a metal door on a horse and breaking its legs. Bolbol Decl. ¶ 6. During this and other roundups, Ms. Bolbol also recorded BLM’s actions causing horses to panic and injure themselves, as well as BLM employees or agents striking and kicking wild horses, whipping them, and using cattle prods to shock horses that are too exhausted to stand. Id. ¶ 5. After Ms. Bolbol’s footage was widely viewed on the internet, public outcry led BLM to issue a new policy that prohibited or restricted inhumane actions Ms. Bolbol had recorded. Id. ¶ 6. Thus, public observation of BLM’s roundups has led BLM to adopt more humane, socially acceptable wild horse population management practices.
PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION – 19
Case 2:16-cv-01650-SU
Document 2
Filed 08/15/16
Page 29 of 47
In fact, public attention has also played a significant role in forestalling BLM’s efforts to implement wild horse sterilization. For example, after BLM twice proposed to castrate wild stallions, “AWHPC successfully led BLM to abandon these past efforts through extensive public outreach, public comments, and ultimately litigation.” Roy Decl. ¶ 9; see also AWHPC, 800 F. Supp. 2d at 271; AWHPC, 859 F. Supp. 2d at 47. Perhaps the clearest indication that public access continues to play a significant role in BLM’s wild horse population management, even as BLM pivots radically from a roundup-based system to one involving permanent surgical sterilization, is the fact that in March 2016 BLM appointed Plaintiff Ginger Kathrens to serve as the National Wild Horse and Burro Advisory Board’s Humane Advocate. Kathrens Decl. ¶ 9. As BLM knows, Ms. Kathrens has “strongly opposed BLM’s efforts to move to sterilization-based wild horse population management for many years.” Id. ¶ 16. Her advocacy against wild horse sterilization and for their humane treatment “emphasizes public outreach and education as a principal strategy.” Id. ¶ 6. Indeed, BLM itself praised Ms. Kathrens’ work as a documentarian when announcing her appointment to the Advisory Board.6 BLM’s appointment of Ms. Kathrens to its Advisory Board demonstrates that her approach to advocacy—which depends substantially on direct observation of BLM’s activities and public dissemination of such first-hand information, Kathrens Decl. ¶¶ 5, 8—has proved undeniably valuable to BLM and will continue to shape the agency’s policies and practices moving forward.
6
See BLM Announces Three Selections for National Wild Horse and Burro Advisory Board (Mar. 3, 2016) http://www.blm.gov/wo/st/en/info/newsroom/2016/march/nr_03_28_2016.html. PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION – 20
Case 2:16-cv-01650-SU
Document 2
Filed 08/15/16
Page 30 of 47
In sum, there can be no legitimate dispute that public access to observe and document BLM’s management of wild horse populations has played and continues to play a significant positive role in shaping the agency’s policies and practices. 3.
BLM Cannot Justify Its Denial Of Public Access.
The Ninth Circuit has explained that “a court cannot rubber-stamp an access restriction simply because the government says it is necessary.” Leigh, 677 F.3d at 900. Instead, the government must prove that an access restriction is “narrowly tailored” and “essential” to serve an “overriding interest,” id. at 901, through “specific, on the record” evidence, Press-Enterprise II, 478 U.S. at 13. As the Supreme Court explained, “[t]he First Amendment right of access cannot be overcome by [a] conclusory assertion” that a restriction is necessary. Id. (emphasis added). Here, however, as ostensible justifications for its decision to deny all public access to observe its sterilization experiments, BLM offered nothing more than conclusory assertions with no basis in evidence or logic. BLM’s primary reason for denying any observation is that the presence of observers—or even small, unobtrusive cameras—“can be distracting” and increase the risks to horses and research personnel. Ex. L at 1; Ex. F. However, BLM never supported this assertion with any factual or scientific materials indicating that this is a legitimate concern in this type of research setting. To the contrary, to support this request for injunctive relief, independent veterinarians with decades of experience in such matters attest that observation of surgical procedures on horses is routine and does not present any of the risks BLM asserts. For example, Dr. Robin Kelly, who has 34 years of veterinary experience and has actually performed reproductive surgery on wild horses in the presence of observers, explains that she “do[es] not believe that
PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION – 21
Case 2:16-cv-01650-SU
Document 2
Filed 08/15/16
Page 31 of 47
observers would in any way affect the ability of a qualified veterinarian to safely and effectively perform a procedure on a wild horse, as long as the horse is properly sedated and pain is effectively controlled.” Kelly Decl. ¶ 8. Additionally, Dr. Pamela Corey, who also has decades of related experience, notes that in her practice, which regularly involves surgery on horses in the presence of observers, although she has “had to ask small children to take a step back while observing, as not to injure themselves, I find that bystanders do not in any way affect my ability to safely and effectively perform surgery on a properly sedated horse.” Corey Decl. ¶ 3 (emphasis in original). Similarly, Dr. Allen Rutberg, a researcher with over 20 years of experience studying wildlife contraception and wild horse management, attests to the fact that during his “extensive field research on free-roaming deer and wild horses,” observation by journalists and the public has been “commonplace” and that he has “never had an incident where an observer disrupted the research protocol or posed a threat to animal or researcher safety.” Ex. O, Rutberg Decl. ¶ 4-5. Nor does observation of ovariectomy via colpotomy—the riskiest of BLM’s experimental procedures—increase the risks of that procedure. For example, Dr. Leon Pielstick, “a veterinarian who has worked with BLM since 1975,” Ex. E at 121, previously invited nine observers to observe and record him sterilizing a horse and four wild burros using this technique. Ex. P, Netherlands Decl., ¶¶ 3–8. Despite the fact that “[t]he observers were not quiet” and that “chatter among the observers, and even laughter, is regularly audible” in the recording, Dr. Pielstick never indicated that the observers’ behavior posed any distraction to him or any risk to the animals. Id. ¶ 8. Thus, the behavior of a veterinarian that BLM itself relies on, see Ex. E at 121 (including Dr. Pielstick in an expert panel discussing sterilization methods); id. at 19 (citing personal communication with Dr. Pielstick), confirms that BLM’s protestations about
PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION – 22
Case 2:16-cv-01650-SU
Document 2
Filed 08/15/16
Page 32 of 47
observation creating distractions and risks are groundless. Moreover, the BLM itself confirms that recording should not disrupt surgical procedures because the agency itself intends to record certain experiments at the Hines Corral. Id. at 28 (“Still images or a video of the entire procedure would document the effort.”). Similarly unavailing is BLM’s assertion that public observation is not possible because of “limited space” at the Hines Corral. Ex. F. at 1. As Ms. Kathrens explains based on first-hand observations, the Hines Corral accommodated “[a]t least 15 people” who witnessed a prior procedure there, and the facility has spaces where a camera could “unobtrusively record a view of the experimental procedures.” Kathrens Decl. ¶ 24. Thus, BLM’s claim of “limited space” in the Hines Corral cannot possibly support the agency’s denial of all public access to these procedures. Finally, there is also no merit to BLM’s purported concern that releasing videos of these procedures “could jeopardize the review process for any peer-reviewed publications” from this research. Ex. L at 1. Dr. Rutberg, who has extensive experience both writing and reviewing articles for publication in peer-reviewed journals, explains that “[i]t is commonplace for researchers to allow outsiders including journalists to observe research procedures, especially when there is a high level of public interest in the work and the conditions of observation can be managed,” and that such observation does not affect publication prospects. Rutberg Decl. ¶¶ 5– 6. Indeed, as Dr. Rutberg further explains, because BLM has already made public “highly specific descriptions of the experimental procedures” in its EA for this project, public observation “presents no future hurdles to scholarly publication that BLM has not itself already created.” Id. ¶ 7.
PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION – 23
Case 2:16-cv-01650-SU
Document 2
Filed 08/15/16
Page 33 of 47
In sum, none of BLM’s stated reasons for denying any access to observe and document the upcoming sterilization experiments in the Hines Corral constitutes a compelling justification to thwart public observation of this important governmental activity, and under binding precedent, such conclusory allegations simply cannot carry BLM’s legal burden of proving with “specific, on the record” evidence that its restrictions are “essential.” See Press-Enterprise II, 478 U.S. at 13. 4.
BLM’s Denial of Public Access Is Not Narrowly Tailored.
Nor can BLM show that its total denial of all access to observe these experiments is narrowly tailored. See Press-Enterprise II, 478 U.S. at 8–9. For example, although Plaintiffs offered to “work with the agency to identify the individuals” who would observe the experiments, BLM instead imposed a total ban on any public observation. Ex. F; Pls’ Ex. L; but see Kelly Decl. ¶ 10 (noting that she would observe some experiments if given sufficient notice); Ex. Q, Jacobson Decl. ¶ 3 (same). Similarly, after Plaintiffs attempted to address BLM’s stated concerns through a narrowed request for remote observation using small, unobtrusive cameras, BLM again flatly banned any observation—although BLM’s own hand-picked veterinarian had previously invited nine observers to watch and record the very same procedure that BLM now says it is impossible to safely observe. Netherlands Decl. ¶¶ 5, 8. Accordingly, it is impossible for BLM to carry its burden of establishing that its total ban on public observation is narrowly tailored to an overriding government interest. Thus, Plaintiffs are likely to succeed on their claim under the First Amendment.
PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION – 24
Case 2:16-cv-01650-SU
B.
Document 2
Filed 08/15/16
Page 34 of 47
BLM’s Decision to Deny Public Access Is Arbitrary and Capricious. 1.
BLM’s denial of public observation is arbitrary and capricious because it failed to consider how allowing public observation would further the agency’s own goals. a.
BLM failed to consider whether public observation would help determine whether experimental procedures are “socially acceptable.”
As BLM’s EA for these experiments repeatedly states, one of the agency’s principal goals for its upcoming sterilization experiments is to assess whether these experimental procedures are “socially acceptable” as a way to manage wild horses on the range. Ex. E at 47 (BLM must choose methods that are “ecologically viable, financially viable, and socially acceptable”); id. at 51 (experimental results “would aid in determining the social acceptability of each procedure”); id. at 54 (results will “aid BLM in determining the social acceptability of each procedure”). Indeed, BLM stressed that answering this question will shape the answer to “[t]he ultimate question in the reasonably foreseeable future of wild horse population management.” Id. at 53. However, although Plaintiffs placed squarely before the agency the issue of whether public observation would promote the agency’s own goal of assessing these procedures’ social acceptability, Ex. J at 1; Ex. K at 2, when BLM twice denied any public access to observe these experiments, BLM said nothing about how public observation could help assess the procedures’ social acceptability, Ex. F; Ex. L. Thus, by failing to consider whether public observation would promote the agency’s own stated goals for this experiment, BLM has clearly failed to consider a factor that is highly relevant to its decision to deny access and failed to consider an important aspect of the problem before the agency, and is thus arbitrary and capricious and an abuse of discretion.
PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION – 25
Case 2:16-cv-01650-SU
Document 2
Filed 08/15/16
Page 35 of 47
BLM’s arbitrary and capricious denial of public observation is especially egregious given that one of the parties requesting access to observe these experiments—Ginger Kathrens—is the Humane Advocate on the National Wild Horse and Burro Advisory Board, specifically appointed by BLM to advise the agency on the humane treatment of wild horses. As described above, the Advisory Board includes individuals with “special knowledge about protection of horses and burros” who can “advise [BLM] on any matter relating to wild horses and burros and their management and protection.” 16 U.S.C. § 1337 (emphasis added). Similarly, when determining whether to manage wild horse populations “by the removal and destruction of excess animals, or other options (such as sterilization or natural controls on population levels),” BLM “shall consult with . . . individuals whom [it] determines have . . . special knowledge of wild horse and burro protection.” Id. § 1333(b)(1) (emphasis added). BLM recognized that Plaintiff Ginger Kathrens has “special knowledge about wild horse and burro protection” by appointing her to serve on its Advisory Board in the capacity of Humane Advocacy. Id. § 1337. In fact, BLM appointed Ms. Kathrens precisely because of her successful history of using observation and documentation of wild horses and BLM’s treatment of wild horses to advocate for more humane treatment of these federally protected animals. See Kathrens Decl. ¶¶ 8–9. As Ms. Kathrens notes, her “effective service on the Advisory Board [] heavily depends on access to observe and document how BLM treats the wild horses in its control and to disseminate that information to the public.” Id. ¶ 10; see also id. ¶ 29 (describing how BLM’s denial of public access impairs Ms. Kathrens’ performance of her duties as the Advisory Board’s Humane Advocate). The fact that BLM appointed Ms. Kathrens to a position focused on providing an informed opinion on whether its treatment of wild horses is humane and socially acceptable, and then mere months later denied her the ability to obtain an independent,
PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION – 26
Case 2:16-cv-01650-SU
Document 2
Filed 08/15/16
Page 36 of 47
first-hand account of its treatment of wild horses in a set of experiments that the agency itself designed to assess whether certain procedures are socially acceptable, highlights the arbitrary and capricious nature of the agency’s decision at issue. b.
BLM failed to consider whether additional post-surgical monitoring would promote the humane care of wild horses.
That BLM also refused to entertain Plaintiffs’ specific request for remote post-surgical observation further highlights the arbitrariness of BLM’s decision. As explained above, after BLM denied Plaintiffs’ initial request for in-person observation, Plaintiffs sent a second, narrower request to install small, unobtrusive cameras to remotely observe the surgeries and the horses in post-surgical recovery. See Ex. K. Plaintiffs specifically explained that because BLM had stated that post-surgical observation is an important aspect of the agency’s experiment, see Ex. E at 20, 25, the Plaintiffs’ “cameras can supplement BLM’s current plans for post-surgical observation by providing for constant, 24-hour observation . . . [which] would improve the odds of a humane outcome . . . by making it possible to catch [any] complications at an early stage,” Ex. K at 2. However, BLM denied this narrowed request as well, again without considering that Plaintiffs’ offer of supplemental observation would promote BLM’s own stated objectives. Instead, BLM merely stated that its “decision . . . ensures that the horses will have the best possible care during the surgeries and monitoring periods.” Ex. L at 1. In concluding that denying 24-hour monitoring would provide the best possible care during monitoring periods— which flies in the face of common sense—BLM gave absolutely no consideration to whether remote monitoring could further its own goals as Plaintiffs clearly explained, Ex. K at 2. Accordingly, BLM failed to consider this important aspect of the problem, and for this reason its decision was also arbitrary and capricious. PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION – 27
Case 2:16-cv-01650-SU
2.
Document 2
Filed 08/15/16
Page 37 of 47
BLM’s denial of public access is arbitrary and capricious because none of its purported justifications have any basis in fact or logic.
BLM’s decision is also arbitrary and capricious because its purported justifications lack any legitimate basis. It is well-settled that agency action is arbitrary and capricious when the agency relies on “conclusory assertions” “unaccompanied by any . . . supporting data.” Ctr. for Biological Diversity, 538 F.3d at 1223–24; see also Asarco, Inc. v. U.S. Envtl. Prot. Agency, 616 F.2d 1153, 1162 (9th Cir. 1980) (finding action arbitrary and capricious where the agency “d[id] not disclose a reasoned scientific basis” for its conclusion and the plaintiff submitted evidence contrary to the agency’s conclusory statement). Here, in denying Plaintiffs’ requests to observe the upcoming sterilization experiments, BLM offered only conclusory justifications with no citation to any supporting evidence, scientific or otherwise. Each of BLM’s ostensible justifications lacks any rational foundation in fact or logic. First, BLM asserted that the Hines Corral “contain[s] limited space,” Ex. F at 1. However, in April 2016, BLM invited numerous observers, including Plaintiff Ginger Kathrens, to the Hines Corral to tour the facility and observe a veterinary procedure. Kathrens Decl. ¶ 24 (“At least 15 people were able to stand near the chute and see the location where BLM will conduct its upcoming experiments.”); see also id. at Attach 1 (depicting the crowd watching the procedure). Similarly, contrary to BLM’s insistence that small, unobtrusive cameras would somehow impede these experiments, “[t]he facility has places to put cameras atop a panel where it can unobtrusively record a view of the experimental procedures,” Kathrens Decl., ¶ 24, and BLM itself plans to record certain procedures, Ex. E, at 28. Indeed, as Ms. Kathrens summarizes: “If [the Corral] could accommodate 15 people or more, it could surely allow one person to watch in addition to the surgical team.” Kathrens Decl. ¶ 24.
PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION – 28
Case 2:16-cv-01650-SU
Document 2
Filed 08/15/16
Page 38 of 47
Second, BLM asserted that any observation, whether live or remote, would be too disruptive to these procedures and could imperil the horses or researchers. However, the same veterinarian on whose expertise BLM relies, Ex. E at 121, previously invited numerous observers to watch and record the ovariectomy via colpotomy procedure at another location with no indication that observation would be distracting or increase any risks—even though the observers were talking (and even laughing) during the procedure. Netherlands Decl. ¶ 8; see also Attach. 1 to Netherlands Decl. (depicting the procedure). In any event, as discussed above, veterinarians and researchers with decades of experience attest to the fact that observation of veterinary procedures or research is not disruptive and does not present increased risks to either the horses or the researchers. Corey Decl. ¶ 3; Kelly Decl. ¶ 8; Rutberg Decl. ¶ 4. Third, BLM asserted that the mere presence of small cameras would be prohibitively distracting and disruptive. Ex. L at 1. Not only is this illogical—especially given that BLM itself plans to record certain procedures, Ex. E at 28—but again, the fact that the veterinarian on whose expertise BLM relies allowed the riskiest of the three experimental procedures to be observed and recorded by members of the public plainly suggests that this ostensible justification lacks any merit. Netherlands Decl. ¶ 8. Fourth, BLM contended that releasing recordings of these experiments could “jeopardize the review process for any peer-reviewed publications anticipated from this research.” Ex. L at 1. However, as Dr. Rutberg, who has decades of experience authoring and reviewing articles for publication in peer-reviewed journals, attests, neither “the release of videos of the surgical sterilization of a limited number of wild mares” nor “the presence of cooperative bystanders” would present any obstacles to peer review or publication of the BLM’s experimental results. Rutberg Decl. ¶¶ 6–7.
PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION – 29
Case 2:16-cv-01650-SU
Document 2
Filed 08/15/16
Page 39 of 47
Finally, BLM has provided no support for its counterintuitive assertion that denying access to install cameras for 24-hour post-surgical observation “ensures that the horses will have the best possible care during the surgeries and monitoring periods.” Ex. L at 1. The notion that denying 24-hour monitoring ensures the best possible monitoring is, on its face, irrational. In sum, none of BLM’s conclusory rationales for denying Plaintiffs’ requests for public access to observe the upcoming sterilization experiments has any basis in fact or logic. Accordingly, the agency’s denial of public access to observe these experiments is plainly arbitrary and capricious because it is not “founded on a reasoned evaluation of the relevant factors.” Ariz. Cattle Growers, 273 F.3d at 1236. II.
PLAINTIFFS WILL SUFFER IRREPARABLE HARM ABSENT AN INJUNCTION, AND NO REMEDY AT LAW WILL AMELIORATE THAT HARM. A.
BLM’s Denial Of Access Infringes Plaintiffs’ First Amendment Rights And Impairs Their Ability To Inform The Public About BLM’s Treatment of Wild Horses.
It is well settled that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976); see also Klein v. City of San Clemente, 584 F.3d 1196, 1207–08 (9th Cir. 2009). Accordingly, “[u]nder the law of this circuit, a party seeking preliminary injunctive relief in a First Amendment context can establish irreparable injury sufficient to merit the grant of relief by demonstrating the existence of a colorable First Amendment claim.” Warsoldier v. Woodford, 418 F.3d 989, 1001–02 (9th Cir. 2005). Demonstrating a “colorable” First Amendment claim is not a high bar; plaintiffs must merely demonstrate that “the underlying constitutional question is close.” Doe v. Harris, 772 F.3d 563, 583 (9th Cir. 2014) (quoting Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656, 664–65 (2004)); see also OTR, 602 Fed. Appx. at 671 (noting that when
PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION – 30
Case 2:16-cv-01650-SU
Document 2
Filed 08/15/16
Page 40 of 47
the balance of the equities tips sharply in plaintiffs’ favor, all that is necessary is “a fair chance of success on the merits”). As demonstrated above, Plaintiffs have easily carried the burden of demonstrating a colorable First Amendment claim, especially in light of the fact that the balance of the equities tips sharply in Plaintiffs’ favor. Accordingly, Plaintiffs have also proven a likely irreparable injury through the loss of First Amendment rights, which is sufficient to justify a preliminary injunction. See Klein, 584 F.3d at 1207–08. Similarly, BLM’s arbitrary and capricious denial of access to observe these sterilization experiments also harms Plaintiffs by irreparably impairing Plaintiffs’ individual and organizational efforts to obtain and disseminate information about BLM’s treatment of wild horses and to advocate for humane management of wild horse populations. As demonstrated above, Plaintiffs have a long, proven history of observing and publicly disseminating information about BLM’s treatment, including inhumane treatment, of wild horses in order to improve the agency’s management of these federally protected animals. E.g., Roy Decl. ¶ 6. As Plaintiffs explained in their initial observation request, these experiments not only risk inhumane results for the mares subject to them as well as their foals, but also “[g]iven that these experiments will shape the BLM’s program-wide policies, public documentation of this project is essential.” Ex. J at 1. Indeed, BLM decided to conduct these experiments precisely because they “have potential for future application in the field.” Ex. E at 50; see also id. (“Depending on the results of these studies, BLM may or may not choose in the future to apply any of the three sterilization methods to wild horse mares on the range.”). BLM is already planning to sterilize mares on the range in Wyoming, id. at 51, and plans to do so in Idaho also. According to BLM, “[t]he ultimate question in the reasonably foreseeable future of wild horse population
PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION – 31
Case 2:16-cv-01650-SU
Document 2
Filed 08/15/16
Page 41 of 47
management” requires “determin[ing] which [sterilization] methods are safe, effective and socially acceptable.” Id. at 53. Therefore, by denying Plaintiffs access to observe and document these experiments, BLM has significantly impaired their ability to help answer what BLM itself describes as “[t]he ultimate question in the reasonably foreseeable future of wild horse population management.” Id. As described above, Plaintiffs have successfully advocated for improvements in BLM’s policies and practices by documenting and publicly disseminating information about inhumane treatment of horses during BLM’s management actions. See e.g., Bolbol Decl. ¶ 6. By depriving Plaintiffs of this critical tool, BLM’s denial of access to observe and document these experiments makes it far more difficult for Plaintiffs to continue their history of successful advocacy on behalf of the strong public interest in the welfare of wild horses. As Plaintiff Ginger Kathrens explains, the denial of public observation of these experiments also significantly impairs her ability to perform her duties as the Humane Advocate on the BLM’s Advisory Board. Kathrens Decl. at ¶ 29. The injury that BLM’s denial of access causes to Plaintiffs is irreparable for three reasons. First, BLM’s action denies Plaintiffs a unique opportunity to observe, document, and assess the humaneness and social acceptability of these experiments in a relatively controlled setting. This unique opportunity is valuable because it would allow Plaintiffs to evaluate whether these procedures can ever be implemented on the range in a safe, humane, and “socially acceptable” manner, or whether the procedures may instead depend on access to equipment and personnel that may not be available in the same quantity or quality—or even at all—on the open range. Because this is a unique opportunity, BLM’s denial of access to observe and document
PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION – 32
Case 2:16-cv-01650-SU
Document 2
Filed 08/15/16
Page 42 of 47
these experiments constitutes irreparable harm. Plaintiffs will never get another chance to observe these procedures in such a controlled condition. Second, BLM’s action denies Plaintiffs a unique opportunity to help assess which of these procedures, if any, are “socially acceptable” enough to ever implement on the open range before BLM actually decides to implement them. For example, BLM states that these experiments’ results will “aid BLM in determining the social acceptability of each procedure,” Ex. E at 54, and that these results will help BLM choose which ovariectomy procedure it will implement in its upcoming experiment on wild mares in Wyoming, id. at 44. If Plaintiffs are unable to view and document BLM’s ovariectomy via colpotomy experiments in Oregon, they will be deprived of their most significant strategy of public outreach and thus will be at a significant disadvantage in explaining to BLM and the public why this particular procedure is not sufficiently “socially acceptable” to warrant further experiments in Wyoming. In short, BLM’s denial of access to observe and document these experiments irreparably deprives Plaintiffs of the ability to gather information and provide public input before the agency makes further sterilization implementation decisions. Third, and relatedly, BLM’s denial of access to observe and document these experiments irreparably harms Plaintiffs because it deprives them of information that they will need in order to educate the public, muster public interest, and provide informed public comments in the future. As noted above, witnessing these procedures may reveal that their success depends on access to resources that are not available on the open range. Similarly, actually seeing footage of the procedures would allow an assessment of “social acceptability” in a way that a mere description of the procedures would not; the picture is worth a thousand words. Without the ability to observe and document these experiments, Plaintiffs will face a significant disadvantage
PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION – 33
Case 2:16-cv-01650-SU
Document 2
Filed 08/15/16
Page 43 of 47
in future attempts to explain why these procedures are not appropriate for implementation on the range. Again, because Plaintiffs will not get another chance to observe these procedures before their implementation on the range, this harm is irreparable. See Kathrens Decl. ¶¶ 28–33; Roy Decl. ¶¶ 16–19. B.
BLM’s Limited Grant Of Observation Access Or Information Will Not Cure The Harm To Plaintiffs’ Interests.
BLM’s provision of restricted access to view horses in post-experimental recovery and its provision of selective weekly or daily reports will not in any way repair the harm caused to Plaintiffs by the inability to view the experimental procedures themselves. First, viewing horses in recovery will not reveal critical facts about these procedures, such as how invasive or painful they are, and how they depend on resources unavailable on the range. The Ninth Circuit rejected a similar provision of limited access in Associated Press v. Otter, reasoning that “[t]o say that the plaintiffs will not suffer harm because they will be able to witness part of [an] execution is like saying the public would not suffer harm were it allowed to read only a portion of the New York Times.” 682 F.3d 821, 825–26 (2012). A fortiori, allowing Plaintiffs to view horses after the experiments will not cure the injuries caused by the deprivation of access to observe the experiments themselves. Second, BLM’s weekly or daily progress reports will not cure Plaintiffs’ injuries from the inability to observe and document the experiments. These reports will be far less effective than footage of the experiments in stimulating public interest in the experiments’ social acceptability. Moreover, as the Ninth Circuit has noted, because an “official’s perception of the [] process may be vastly different—and markedly less critical—than that of the public.” Woodford, 299 F.3d at 884, merely providing the government’s version of events cannot cure injuries caused by a
PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION – 34
Case 2:16-cv-01650-SU
Document 2
Filed 08/15/16
Page 44 of 47
restriction that “eliminates independent, public eyewitness observation of several crucial steps of the . . . process,” id. at 883; see also Kathrens Decl. ¶¶ 32–33; Bolbol Decl. ¶ 9. For all the reasons described above, BLM’s denial of access to observe and document its upcoming wild horse sterilization experiments irreparably harms Plaintiffs. III.
THE BALANCE OF THE EQUITIES TIPS STRONGLY IN PLAINTIFFS’ FAVOR AND THE PUBLIC INTEREST FAVORS AN INJUNCTION. The balance of the equities tips strongly in Plaintiffs’ favor. An injunction would not
only safeguard Plaintiffs’ First Amendment rights, but would also protect the significant public interest in observing, documenting, and assessing the social acceptability of the experimental procedures BLM plans to perform on federally protected wild horses. Furthermore, an injunction preserving the status quo until the Court can resolve the case on its merits would neither imperil BLM’s ability to ultimately perform its experiments, nor cause BLM any harm through delay. The fact that BLM’s denial of access to observe these experiments infringes on Plaintiffs’ First Amendment rights is itself sufficient to show that the balance of equities and the public interest weigh in favor of an injunction. For example, in Klein, the Ninth Circuit concluded that a threat to First Amendment rights so clearly imperiled the public interest that it was not even necessary to remand the case to the district court to balance the equities. 584 F.3d at 1207–08 (“If we were in doubt whether [Plaintiff] satisfied the remaining requirements for injunctive relief, we would remand to allow the district court to assess the likelihood of irreparable injury and to balance the equities. Given the free speech protections at issue in this case, however, it is clear that these requirements are satisfied.”). Because First Amendment rights were at issue, the Ninth Circuit found that “[t]he balance of equities and the public interest thus tip sharply in favor of enjoining the ordinance.” Id. at 1208. So too here. PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION – 35
Case 2:16-cv-01650-SU
Document 2
Filed 08/15/16
Page 45 of 47
Moreover, the balance of the equities and the public interest would tip strongly in favor of issuing an injunction even if no First Amendment right were at issue. An injunction would give the Court time to fully consider Plaintiffs’ claims that BLM acted arbitrarily and capriciously in denying public access to observe and document these experiments. If the Court ultimately remands the case to the agency to more thoroughly consider whether to provide public access to these experiments, BLM may well change its position in light of the fact that public observation is the single best way to achieve the agency’s own goal of assessing the “social acceptability” of these experimental procedures. By ultimately leading to a fuller consideration of the issues by the Court and the agency, an injunction could thus serve both the agency’s interest and the public interest. Hence, in light of the seriousness of the legal violations Plaintiffs have alleged against the federal government, an injunction is warranted because “the public has a general interest in the meticulous compliance with the law by public officials.” Fund for Animals v. Clark, 27 F. Supp. 2d 8, 15 (D.D.C. 1998) (citations omitted). Furthermore, a preliminary injunction would not meaningfully impair any governmental interest. First, an injunction would not imperil BLM’s ability to ultimately conduct its planned experiments but instead would merely give the Court time to consider the Plaintiffs’ claims that BLM should provide access to observe the experiments. Moreover, any delay in the implementation of these experiments will not adversely affect BLM, because BLM has demonstrated that its schedule is flexible. For example, BLM notes that its experiments are only “tentatively scheduled to begin on October 1, 2016, but will be dependent upon personnel availability.” Ex. F at 1 (emphases added). Similarly, BLM’s EA for these experiments notes that the agency may have to reschedule the experiments due to a limited availability of pregnant mares. Ex. E at 16 (“If there are not enough horses in BLM holding of the appropriate
PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION – 36
Case 2:16-cv-01650-SU
Document 2
Filed 08/15/16
Page 46 of 47
gestational stages at the time the study begins, then BLM would need to wait until another HMA is gathered to fill each gestational group and complete the study.”). Indeed, this lack of pregnant mares has already caused BLM’s to reschedule these experiments. Roy Decl. ¶ 14. Given the fact that BLM’s schedule for these experiments is tentative, flexible, and subject to the availability of both horses and research personnel, a modest delay due to the issuance of a preliminary injunction would not meaningfully impair any governmental interest in performing these experiments. CONCLUSION For the reasons stated above, the Court should grant Plaintiffs’ request for a preliminary injunction to preserve the status quo until the Court can fully resolve this case on its merits. Respectfully submitted, /s/ William N. Lawton___ William N. Lawton
[email protected] Oregon Bar No. 143685 Meyer Glitzenstein & Eubanks LLP 4115 Wisconsin Ave. NW, Suite 210 Washington, DC 20016 (202) 588-5206 (phone) / (202) 588-5409 (fax) /s/ William S. Eubanks II__ William S. Eubanks II (pro hac vice pending)
[email protected] D.C. Bar No. 987036 Meyer Glitzenstein & Eubanks LLP 245 Cajetan Street Fort Collins, CO 80524 (970) 703-6060 (phone) / (202) 588-5409 (fax) Counsel for Plaintiffs
PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION – 37
Case 2:16-cv-01650-SU
Document 2
Filed 08/15/16
Page 47 of 47
CERTIFICATE OF COMPLIANCE This brief complies with the applicable word-count limitation under Local Rule 7-2(b) because it contains 11,000 words, including headings, footnotes, and quotations, but excluding the caption, table of contents, table of cases and authorities, signature block, exhibits, and any certificates of counsel. CERTIFICATE OF SERVICE I hereby certify that on August 15, 2016, I electronically filed the foregoing Motion and supporting Memorandum with the Clerk of the Court for the United States District Court for the District of Oregon using the Court’s CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the CM/ECF system. /s/ William N. Lawton___ William N. Lawton
[email protected] Oregon Bar No. 143685 Meyer Glitzenstein & Eubanks LLP 4115 Wisconsin Ave. NW, Suite 210 Washington, DC 20016 (202) 588-5206 (phone) / (202) 588-5409 (fax) /s/ William S. Eubanks II__ William S. Eubanks II (pro hac vice pending)
[email protected] D.C. Bar No. 987036 Meyer Glitzenstein & Eubanks LLP 245 Cajetan Street Fort Collins, CO 80524 (970) 703-6060 (phone) / (202) 588-5409 (fax) Counsel for Plaintiffs
PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION – 38
