[00:00:09] Speaker 03:
All right, the next case for argument is case number 24-5786, Friends of Animals versus Deb Holland in the United States Bureau of Land Management.

[00:00:41] Speaker 03:
Is it Marcuccio?

[00:00:43] Speaker 03:
Am I pronouncing that correctly?

[00:00:45] Speaker 03:
Yes.

[00:00:46] Speaker 03:
Okay.

[00:00:47] Speaker 03:
So I'll give you a minute to get set up.

[00:00:49] Speaker 03:
Council, when you're ready, please approach the lecture and begin.

[00:01:24] Speaker 04:
Good morning, Your Honors.

[00:01:25] Speaker 04:
May it please the court?

[00:01:26] Speaker 04:
My name is Andrea Marcuccio, and I represent Appellant's Friendly Hand.

[00:01:29] Speaker 02:
Council, could you pull that?

[00:01:30] Speaker 02:
Those microphones are not very sensitive.

[00:01:33] Speaker 02:
Try and stay as close to them as you can so we can hear you better.

[00:01:36] Speaker 02:
Is this better?

[00:01:37] Speaker 04:
Yeah, that's better.

[00:01:38] Speaker 04:
And I'd like to reserve three minutes for rebuttal.

[00:01:41] Speaker 04:
This is a straightforward case where the Bureau of Land Management violated the Wild Free Roaming Horses and Burrows Act and the National Environmental Policy Act.

[00:01:49] Speaker 04:
BLM spent millions of taxpayer dollars to fund the Winnemucke Off-Range Corral.

[00:01:54] Speaker 04:
BLM calls this a corral.

[00:01:55] Speaker 04:
In reality, it's an industrial feedlot that holds up to 4,000 wild horses and burrows on less than 100 acres of land and produces 40,000 tons of manure annually.

[00:02:06] Speaker 04:
This facility is profoundly unsuitable for this purpose.

[00:02:09] Speaker 02:
It's my understanding that this is a temporary holding facility before the animals are either adopted out or moved to a larger range pasture.

[00:02:23] Speaker 02:
Is that correct?

[00:02:24] Speaker 04:
Yes, your honor, they are held there for an unknown period of time because we're talking months potentially.

[00:02:35] Speaker 04:
Yes, your honor.

[00:02:36] Speaker 04:
So the only evidence we have is from 2008 where they said they were held there about.

[00:02:42] Speaker 04:
210 days, but that's when there was less facilities.

[00:02:45] Speaker 02:
But the animals are, are given, as I understand it, about 750 square feet each of, uh, area in which to, I'm not sure what the word is, but habitat, uh, inhabit.

[00:03:02] Speaker 04:
Uh, yes, your honor.

[00:03:04] Speaker 04:
All right.

[00:03:05] Speaker 04:
Um, and,

[00:03:07] Speaker 04:
Again, this facility is profoundly unsuitable for this purpose because it sits on flood prone soil and creates inhumane conditions.

[00:03:15] Speaker 04:
And I just want to move to the first issue that BLM violated the Wild Horse and Burro Act by funding an inhumane facility.

[00:03:22] Speaker 02:
Well, you say inhumane, but as I understand it, the contract incorporated the standards of care that were developed using expert witnesses from

[00:03:34] Speaker 02:
UC Davis is a veterinary school and other animal wildlife experts.

[00:03:41] Speaker 02:
Um, so how is that inhumane if, if the government is essentially following the advice of experts in the field?

[00:03:51] Speaker 04:
Your honor, the guidance does not establish what is humane under the wild free roaming horses and burrows act.

[00:03:59] Speaker 02:
That's not quite my, my question though is,

[00:04:02] Speaker 02:
How can we declare this conduct to be inhumane when the agency has followed recommendations of an expert panel, and why does that amount to arbitrary and capricious decision-making under the environmental statute?

[00:04:20] Speaker 04:
Your Honor, the guidance itself is extremely vague, and it doesn't encompass the unique

[00:04:29] Speaker 04:
the unique issues with this facility.

[00:04:32] Speaker 02:
Doesn't it address basically the standards of care that apply to all of these types of facilities?

[00:04:39] Speaker 02:
Where are there about 10 or 12 of them in the West?

[00:04:43] Speaker 04:
Your honor, there's about 28 off range corrals and like 13 specifically for preparation.

[00:04:50] Speaker 02:
So if they all follow these, I'll call them standards of care,

[00:04:55] Speaker 02:
Uh, which you acknowledge include things like 750 square feet per animal.

[00:05:02] Speaker 02:
Um, I, again, I'm having a hard time understanding why you label this inhumane.

[00:05:09] Speaker 04:
Your honor, the guidance doesn't specifically say 700 feet is what.

[00:05:15] Speaker 02:
Isn't that incorporated?

[00:05:17] Speaker 02:
I thought that was incorporated into the contract here.

[00:05:20] Speaker 04:
No, Your Honor, so the guidance itself doesn't specifically say that.

[00:05:23] Speaker 04:
But there's adoption requirements that mention 400 square feet per animal.

[00:05:29] Speaker 04:
And BLM claims it exceeded those guidelines.

[00:05:33] Speaker 04:
But those aren't specific to the off-range corral.

[00:05:36] Speaker 04:
And for example, BLM says that the guidance doesn't require shelter for animals.

[00:05:43] Speaker 04:
But the guidance says that BLM is required to say what shelter is appropriate

[00:05:49] Speaker 02:
Council, I'm looking at SER55, which basically is these standards that I've been referring to.

[00:05:59] Speaker 02:
For example, it talks about the importance of having sufficient

[00:06:08] Speaker 02:
grading of the pen so that it promotes drainage, reduces wet ground conditions, allows for routine manure removal, provides access to shade and shelter, talks about having on-call veterinarians, and you're saying that's inhumane?

[00:06:27] Speaker 02:
Your Honor, there's specific... Why did the agency abuse this discretion in following these guidance, this guidance?

[00:06:34] Speaker 04:
Your Honor, there's specific, there's again, there's unique

[00:06:39] Speaker 04:
issues at this specific facility that are not addressed in the guidance.

[00:06:44] Speaker 04:
What kind of issues, for example, the facility holds 4,000 animals.

[00:06:51] Speaker 04:
And at the time that this decision was made, the average capacity was 1400 animals.

[00:06:57] Speaker 04:
So this is the largest facility.

[00:06:59] Speaker 02:
Its own experts found that it's only being operated at about 50% of its capacity.

[00:07:05] Speaker 02:
I mean, this, you know, we get these kinds of cases, not just in the environmental arena, but in jail litigation where we've got 1500 people in a jail that was designed to hold 1000.

[00:07:17] Speaker 02:
That's not the problem we have here.

[00:07:19] Speaker 02:
There are fewer animals than what the facility was designed to hold.

[00:07:22] Speaker 02:
Isn't that true?

[00:07:24] Speaker 04:
No, your honor.

[00:07:25] Speaker 04:
So as of right now, it's holding about 3,500 horses.

[00:07:28] Speaker 02:
And it was built to hold 4,000, was it not?

[00:07:32] Speaker 04:
Yes.

[00:07:32] Speaker 04:
And I'm saying that other facilities, their average capacity was 1,400 per animal.

[00:07:38] Speaker 02:
Where's the beef here?

[00:07:39] Speaker 04:
So there's also BLM's own experts warned that the soil would become a huge muck hole when wet and a dust bowl when dry.

[00:07:49] Speaker 04:
Many

[00:07:50] Speaker 04:
veterinarians commented and said this facility is inhumane and BLM did no analysis on how it is humane.

[00:07:57] Speaker 02:
They just said, but if the agency impanels a panel of expert veterinarians from a well-respected veterinary school of medicine and follows the recommendations of those experts, isn't the agency entitled to pick and choose which experts they're going to follow?

[00:08:17] Speaker 04:
Again, this facility, like that guidance is extremely vague and it does not address the specific impacts of this facility.

[00:08:28] Speaker 04:
It doesn't say anything about shelter.

[00:08:30] Speaker 02:
You're not answering my question.

[00:08:31] Speaker 02:
You've come forward with your panel of experts that says something different from what the government's panel of experts said.

[00:08:39] Speaker 02:
And the agency has to choose.

[00:08:41] Speaker 02:
And the Supreme Court has told us that we have to give

[00:08:44] Speaker 02:
heightened standard of deference to these types of decisions by agencies, in this case, the Bureau of Land Management that's directed by Congress to round up excess wild horses and burros and to care for them in these kinds of facilities.

[00:09:02] Speaker 04:
Your Honor, again, there's no experts that said that this facility is humane.

[00:09:08] Speaker 04:
Again, the guidance says

[00:09:10] Speaker 04:
that they have to say what shelter and shade is appropriate for a facility.

[00:09:14] Speaker 04:
They have never done, made that determination.

[00:09:17] Speaker 04:
They have just not included any shelter shade at all.

[00:09:21] Speaker 02:
Any evidence in the record that this facility is killing or harming more horses than other similar facilities of the 28 around the country?

[00:09:32] Speaker 04:
Your honor, there is,

[00:09:35] Speaker 04:
plenty of evidence that this particular facility is inhumane.

[00:09:39] Speaker 02:
Again, the standard is un- You keep giving me conclusions.

[00:09:42] Speaker 02:
I'm asking for specific information here as to, you know, is this facility somehow being operated in a way that's different from the other 28 or are you challenging these standards of care as it applies to all 28?

[00:09:58] Speaker 02:
If that's the case, then this is a bigger case than what you told the district court it was.

[00:10:03] Speaker 04:
Your Honor, we're

[00:10:05] Speaker 04:
We're talking about this particular facility and there is many issues that are unique to this facility.

[00:10:12] Speaker 04:
Again, it's the highest capacity facility at the time that it was created and it has dusty, mucky soil.

[00:10:20] Speaker 04:
It has no shelter in shade.

[00:10:22] Speaker 04:
And again, we don't have facts about other facilities, but there's certainly tons of facts in this record about how this particular facility is inhumane.

[00:10:31] Speaker 04:
It will only be cleaned twice a year.

[00:10:33] Speaker 04:
Again, the guidance doesn't even recommend how many times.

[00:10:37] Speaker 02:
The guidance says twice a year or more as required, does it not?

[00:10:41] Speaker 04:
It says two to four times a year.

[00:10:42] Speaker 02:
And do you have evidence that they're doing it less than two to four times a year?

[00:10:49] Speaker 02:
So is your position that they have to do it more than four times a year?

[00:10:53] Speaker 02:
Is that what you're saying?

[00:10:54] Speaker 04:
Yes, Your Honor.

[00:10:54] Speaker 04:
So many veterinarians said that this type level of cleaning is not adequate to be humane for the facility.

[00:11:05] Speaker 04:
no expert said otherwise.

[00:11:07] Speaker 04:
And again, the guidance doesn't even say how many times you should clean it.

[00:11:11] Speaker 04:
It doesn't recommend cleaning it at all.

[00:11:13] Speaker 04:
So if we rely on these guidance, then they wouldn't clean the facility at all, and that would be

[00:11:20] Speaker 04:
in like humane under the act.

[00:11:23] Speaker 04:
And again, this has not gone through notice and comment rulemaking, and it does not say what is humane under the statute.

[00:11:31] Speaker 02:
So is your argument that the agency cannot rely on the recommendations of its experts without going through the formal APA notice and comment procedures?

[00:11:44] Speaker 02:
Otherwise, it's not binding when it's incorporated into the contract?

[00:11:48] Speaker 02:
of the private operator of the facility?

[00:11:51] Speaker 04:
Your Honor, the argument is that no expert has found this particular facility is human.

[00:11:57] Speaker 02:
That's not my question.

[00:11:58] Speaker 02:
My question is, are you taking the position that these standards of care have to be adopted through formal rulemaking proceedings?

[00:12:07] Speaker 02:
That's my question.

[00:12:08] Speaker 02:
What's your answer?

[00:12:11] Speaker 04:
No, Your Honor, it's not that it has to be adopted, but in order for it to rely on that and say that this is what it means for it to be humane under the statute, then yes, it would have to go through notice and comment rulemaking so that the public can have a chance to comment on that and other veterinarians can have a chance to say, I think this is humane under the statute, I don't.

[00:12:33] Speaker 02:
But didn't you provide that evidence to the agency while it was considering the bid solicitation?

[00:12:39] Speaker 04:
Yes, Your Honor, we did provide evidence and they said it's outside the scope and it merely relied on the guidance that doesn't say what's humane.

[00:12:47] Speaker 04:
It didn't say when we brought up particular issues with this facility, they said that comment's outside of the scope and they're going to rely on the guidance.

[00:12:58] Speaker 04:
But that guidance doesn't address these specific issues, again, like lack of shelter.

[00:13:02] Speaker 04:
It doesn't address what shelter is humane.

[00:13:05] Speaker 02:
And what's the best case you have to support

[00:13:08] Speaker 02:
uh... your position that we have to make a legal determination as to whether or not this is humane or inhumane.

[00:13:18] Speaker 04:
Your Honor, in Kai Sorvy Wilkie that says that since there's no form of procedures in BLM does not view its guidance as authoritative policy, the court should not defer to it.

[00:13:31] Speaker 04:
And again, this is the same issue that is happening under NEPA, too.

[00:13:35] Speaker 04:
There is no analysis of the wild horses and burrows at all in the actual environmental assessment.

[00:13:43] Speaker 04:
Instead, even though they're legally responsible for protecting them, and NEPA unquestionably requires consideration of those impacts.

[00:13:52] Speaker 04:
As stated before, there's unique impacts at this particular facility.

[00:13:58] Speaker 04:
And it's extremely concerning that they did not

[00:14:01] Speaker 04:
consider these.

[00:14:03] Speaker 04:
And in that particular case, the Ninth Circuit has held in current BBLM that it's obviously inadequate to substitute informal guidelines for the hard look that NEPA demands because the guidance hasn't been subject to NEPA review.

[00:14:20] Speaker 04:
And again, under this interpretation, these site-specific impacts will never be considered anywhere.

[00:14:28] Speaker 04:
And this is the time to consider them now.

[00:14:31] Speaker 04:
And again, it doesn't, the guidance doesn't consider the unique concerns of packing thousands of wild animals into a dusty, mucky, flood-prone feedlot and knowing this information could have changed BLM's decision.

[00:14:47] Speaker 04:
They had full discretion to have additional impact, like additional protections for these facilities.

[00:14:54] Speaker 04:
They could have said,

[00:14:55] Speaker 04:
750 square feet isn't enough.

[00:14:58] Speaker 04:
They could have said, we're going to give them shelter.

[00:15:00] Speaker 04:
But they didn't.

[00:15:01] Speaker 04:
They didn't even consider the animals at all.

[00:15:04] Speaker 02:
Is there anything in the record that tells us whether or not they've applied the same standards to any of the other 27 facilities?

[00:15:12] Speaker 04:
No, Your Honor.

[00:15:14] Speaker 04:
There's evidence that these facilities follow those standards.

[00:15:17] Speaker 04:
But again, they are not site specific.

[00:15:20] Speaker 04:
They do not address the specific concerns at this facility.

[00:15:25] Speaker 04:
And there's no evidence that those facilities are humane because they follow those standards.

[00:15:32] Speaker 04:
BLM has provided no evidence and they've provided no cases that allow them to rely on this guidance.

[00:15:38] Speaker 02:
And instead of taking the hard look, and this is... Council, you are not, I take it through this litigation, challenging the statutory requirement that BLM round up excess animals in order to properly manage

[00:15:53] Speaker 02:
I'll call it the herd of horses, wild horses and burrows throughout the West.

[00:16:01] Speaker 02:
Okay.

[00:16:01] Speaker 02:
So it's just an attack on this particular facility.

[00:16:05] Speaker 04:
Yes.

[00:16:06] Speaker 04:
It is that this facility is first of all, inhumane under the wild horse and burrow act.

[00:16:11] Speaker 04:
And second of all, BLM did not take a hard look at the impacts to the animals under NEPA.

[00:16:16] Speaker 04:
And those are two separate claims with different standards.

[00:16:20] Speaker 04:
And again, um,

[00:16:23] Speaker 04:
These, they said that these impacts will be analyzed in future environmental assessments, but those environmental assessments do not analyze the impacts of this specific facility.

[00:16:36] Speaker 04:
And under their, under their interpretation, these impacts will never be analyzed.

[00:16:43] Speaker 04:
And there's a lot of experts and veterinarians that said these animals will be impacted and we want to,

[00:16:53] Speaker 04:
We're bringing up these concerns and BLM just said, those concerns are outside the scope.

[00:16:59] Speaker 04:
So they didn't even take a hard look at all.

[00:17:01] Speaker 04:
They didn't take any look at these impacts.

[00:17:03] Speaker 04:
And they do not deny that.

[00:17:06] Speaker 03:
Can I ask you to turn to a preliminary issue?

[00:17:11] Speaker 03:
recognize that the government didn't really raise this in their brief, but it is a jurisdictional issue, which is standing.

[00:17:19] Speaker 03:
So as I understand your representational standing argument, it said it's based on three people, Mr. Downer, Mr. Rose, and Mr. Booth, and you have their declarations in the record.

[00:17:31] Speaker 03:
But I think, if I've read them correctly, that only one of them has ever been to this facility.

[00:17:37] Speaker 03:
The rest are talking about perhaps in the future they'd like to visit.

[00:17:41] Speaker 03:
So my concern is whether Friends of Animals has representational standing based on these declarations.

[00:17:49] Speaker 03:
It seems as if the whole thing hinges on Mr. Downer, who says he's been there.

[00:17:57] Speaker 04:
Your honor, at the time that this case was filed, the facility wasn't open and it is on private land.

[00:18:06] Speaker 04:
So whether the public can view it is up to the discretion of the owner, which they do have public.

[00:18:15] Speaker 04:
They do invite the public to view it once in a while.

[00:18:18] Speaker 03:
So at the time... So is it then your position that

[00:18:25] Speaker 03:
It's almost hypothetical, but that they will visit or they could visit in the future and that there's an injury because they have this interest in observing the animals and aesthetic interest.

[00:18:36] Speaker 03:
Aside from seeing them in the wild, because you've already agreed that you're not challenging the statutory authority of the BLM to round up excess animals from the herd.

[00:18:46] Speaker 03:
So they have an injury in not viewing them in a certain way at a range.

[00:18:53] Speaker 03:
Yes, yes, your honor.

[00:18:54] Speaker 04:
So it's that our, our declarants have an interest in viewing them in humane conditions.

[00:19:02] Speaker 04:
And as in Laidlaw, in the case Laidlaw, that was where people had interest in floating down the river, but they had never been and they weren't going to go because of pollution.

[00:19:14] Speaker 04:
So that type of

[00:19:16] Speaker 04:
future injury is accepted under the court.

[00:19:18] Speaker 04:
And then we also have another standing client, Mr. Booth, who lives in the area, and he is worried that this will pollute his community and impact his... He lives like 15 miles away, something like that?

[00:19:31] Speaker 04:
Yes, Your Honor.

[00:19:33] Speaker 04:
And so there's kind of two types of standing.

[00:19:37] Speaker 04:
First is that environmental, and second is that animal, wanting to view animals humanely.

[00:19:45] Speaker 04:
And I see I am running out of time, so I would like to reserve the rest for rebuttal.

[00:19:50] Speaker 03:
And how much did you request?

[00:19:52] Speaker 03:
Three minutes?

[00:19:53] Speaker 03:
Yes.

[00:19:54] Speaker 03:
I will give you three minutes.

[00:19:55] Speaker 03:
Thank you.

[00:20:16] Speaker 01:
May it please the court, Rebecca Jaffe appearing on behalf of the United States.

[00:20:21] Speaker 01:
At the outset, I wanna note the context here.

[00:20:23] Speaker 01:
There are over 60,000 more excess wild horses on public lands than the appropriate management level nationwide.

[00:20:33] Speaker 01:
The herds double in size every four years and the overpopulations deplete forage and water resources, destroy habitat and cause safety issues.

[00:20:42] Speaker 02:
Council, as I understood,

[00:20:44] Speaker 02:
Your opposing counsel's answer to my question, they're not challenging the need to round up excess wild horses for that reason.

[00:20:54] Speaker 02:
Can you jump right into what I think is the core of their argument about this inhumane treatment and failure to adequately assess the impact of the provisions that were included in the contract for the operation of the facility?

[00:21:12] Speaker 01:
Yes, Your Honor.

[00:21:14] Speaker 01:
Redressing the claims under the Wild Horse Act and the accompanying regulations, BLM ensured that wild horses in this facility would be treated humanely.

[00:21:25] Speaker 01:
First off, BLM's regulations prohibit treating a wild horse or burrow inhumanely.

[00:21:32] Speaker 01:
They define humane treatment as handling compatible with animal husbandry practices accepted in the veterinary community without causing unnecessary stress or suffering.

[00:21:43] Speaker 01:
That's at 43 CFR 4700.5E.

[00:21:48] Speaker 01:
And inhumane treatment, the regulations define as any intentional or negligent action or failure to act that causes stress, injury, or undue suffering,

[00:21:59] Speaker 01:
and is not compatible with animal husbandry practices accepted in the veterinary community.

[00:22:05] Speaker 01:
To comply with that mandate here, BLM required the contractor as a condition of the contract to comply with its comprehensive animal welfare program standards.

[00:22:14] Speaker 01:
So our Wild Horse Act argument has two parts.

[00:22:17] Speaker 01:
One, BLM required the contractor to comply with the comprehensive animal welfare program standards.

[00:22:24] Speaker 01:
That requirement is included in the contract, for example.

[00:22:28] Speaker 01:
The court can look at SCR 33, and that was in the contract solicitation, excuse me, and it's now in the contract.

[00:22:36] Speaker 01:
And the guidelines were attached to the solicitation, the contract solicitation at SCR 51 to 74.

[00:22:42] Speaker 02:
And the guidelines were the standards of care that I was discussing with the opposing council.

[00:22:47] Speaker 03:
Yes.

[00:22:47] Speaker 03:
The opposing council, if I understand their argument correctly, is saying that those guidelines are not specific to this facility and that there are specific concerns here with, related to the soil, whether it's going to be overly dry or overly wet, which

[00:23:05] Speaker 03:
could cause problems for hooved animals if it's wet, and shade and size and cleanliness and those sorts of things.

[00:23:14] Speaker 03:
So how do those guidelines apply specifically to this facility other than being adopted through the contract?

[00:23:22] Speaker 03:
Is there something that is within those guidelines that addresses those concerns that the plaintiffs have raised?

[00:23:30] Speaker 01:
So I have a two-part answer to that, Your Honor.

[00:23:32] Speaker 01:
It is true the guidelines are generally applicable to BLM's wild horse program generally.

[00:23:39] Speaker 01:
I believe the court asked my opposing counsel, are these the same standards that apply at all off-range corrals?

[00:23:46] Speaker 01:
And the answer is yes.

[00:23:47] Speaker 01:
The citation for that is SER 12, paragraphs 30 to 31.

[00:23:53] Speaker 01:
The guidelines do have very specific information.

[00:23:57] Speaker 01:
For example, there must be shade and shelter for injured or weak animals.

[00:24:02] Speaker 01:
The site for that is SER 55.

[00:24:07] Speaker 01:
But in addition to the guidelines, also the guidelines mandate that the contractor,

[00:24:14] Speaker 01:
Ground surfaces must be maintained to promote drainage, reduce wet ground, allow for routine manure removal.

[00:24:21] Speaker 01:
That's at SCR 55.

[00:24:22] Speaker 01:
But in addition to those standards, the Comprehensive Animal Welfare Program standards, BLM mandated additional requirements in the contract solicitation here.

[00:24:34] Speaker 01:
For example, it required a minimum of 700 square feet of space per animal.

[00:24:41] Speaker 01:
That was at SER 34, although this contractor actually designed the facility to provide 750 square feet per animal.

[00:24:50] Speaker 01:
That's at 2ER 148.

[00:24:54] Speaker 01:
So each pen will have no more than 100 animals and be over 1.7 acres in size.

[00:25:02] Speaker 01:
The pens will be cleaned two to four times a year.

[00:25:05] Speaker 01:
The site for that is 2ER148.

[00:25:08] Speaker 01:
And BLM employees can mandate additional cleanings if they determine that it's necessary.

[00:25:15] Speaker 01:
The BLM also mandated 20% extra feeding space for timid animals so they don't get boxed out by the more aggressive ones.

[00:25:25] Speaker 01:
The site for that is SER35.

[00:25:27] Speaker 00:
If I can interrupt, I understand you're relying on the contractual requirements and the standard, but then your friends on the other side point to this BLM response to public comment, and it has some kind of cryptic statement about comment as outside the scope of the EA.

[00:25:44] Speaker 00:
Can you explain that?

[00:25:45] Speaker 00:
Because I wasn't sure what to make of that BLM response to public comment.

[00:25:50] Speaker 01:
Yes, Your Honor.

[00:25:51] Speaker 01:
So I believe that that is referencing to ER 174, where, if I can just go there, Your Honor, where the commenter said that wild horses have particular physiological reactions when they're rounded up and held in captivity.

[00:26:15] Speaker 01:
And BLM was saying that the conditions in this off-range corral are basically the same as our other off-range corrals, and that we would analyze the impacts to individual animals in a different environmental assessment.

[00:26:36] Speaker 01:
What BLM is saying there is that

[00:26:39] Speaker 01:
They analyze the impacts to animals from being gathered from the range in gathered decisions.

[00:26:45] Speaker 01:
And when they do those gathered decisions, they look at a host of different potential impacts.

[00:26:51] Speaker 01:
So first of all, they start with gathering.

[00:26:53] Speaker 01:
Are we gathering the animals by helicopter?

[00:26:55] Speaker 01:
Are we doing a bait or a water trap?

[00:26:57] Speaker 01:
Are we administering fertility treatments?

[00:26:59] Speaker 01:
Some of the fertility treatments involve darting the animals, and then they get scared.

[00:27:03] Speaker 01:
Some of them involve surgical procedures.

[00:27:06] Speaker 01:
They look at what are the impacts from transporting the animals.

[00:27:09] Speaker 01:
So BLM's saying there's a separate decision we make where we look at the impacts to animals from all the different things that might happen to them when we decide to gather them from the range and treat them, administer fertility treatments, transport them elsewhere, house them in off-range corrals,

[00:27:32] Speaker 01:
take them to facilities where they can be adopted, send them to off-range pastures.

[00:27:37] Speaker 01:
So BLM analyzes that in a separate place.

[00:27:40] Speaker 00:
Just for the gathering.

[00:27:42] Speaker 01:
For the gather, because they know once we gather the horses, other things will happen.

[00:27:46] Speaker 01:
We'll transport them.

[00:27:47] Speaker 01:
And they know when they analyze the gathers, all of our off-range corrals operate very similarly.

[00:27:55] Speaker 01:
comply with the comprehensive animal welfare program standards.

[00:27:58] Speaker 01:
So when we decide to gather them, we'll look at the impacts to the horses from ending up in one of these corrals.

[00:28:04] Speaker 01:
Here the question was, do we enter into this contract or not?

[00:28:08] Speaker 01:
They were not asking the question of, should we gather any animals?

[00:28:11] Speaker 01:
Should we transport any animals?

[00:28:12] Speaker 01:
It was, should we enter into the contract to build a facility to expand our off-range corral capacity, which we know we desperately need more of.

[00:28:20] Speaker 02:
And as I understand it, there are additional requirements included by requiring that the facility obtain a state concentrated animal feeding operation permit.

[00:28:31] Speaker 02:
Can you address that?

[00:28:33] Speaker 02:
What's included in that?

[00:28:35] Speaker 01:
Yes, Your Honor.

[00:28:36] Speaker 01:
So a concentrated animal feeding operation is a facility that houses a number of animals over certain thresholds.

[00:28:47] Speaker 02:
It applies to feed lots too, doesn't it?

[00:28:50] Speaker 02:
for beef and pigs and chickens.

[00:28:54] Speaker 01:
There's different thresholds of how many chickens you need versus cows, basically depending on how much waste an individual animal will produce.

[00:29:02] Speaker 01:
This is a concentrated animal feeding operation.

[00:29:04] Speaker 01:
The concentrated animal feeding

[00:29:10] Speaker 01:
permits require the contractor to prevent any waste from entering surface waters.

[00:29:17] Speaker 01:
And in Nevada, they also require the contractor to prevent excessive nutrients from seeping into groundwater.

[00:29:24] Speaker 01:
The site for that is 2ER146.

[00:29:27] Speaker 01:
The Bureau considered and described what this permit would do.

[00:29:32] Speaker 01:
It basically requires the contractor to build an engineered drainage system to catch runoff

[00:29:39] Speaker 01:
to have a containment pond to store waste on site in a manner that prevents it from entering into surface waters.

[00:29:46] Speaker 01:
The site for that is 2ER160.

[00:29:50] Speaker 01:
BLM describes potential requirements of the permit like berms or dikes or groundwater monitoring wells.

[00:29:59] Speaker 01:
That's at 2ER161.

[00:30:02] Speaker 01:
And then I do want to note here that BLM required even more than Nevada law requires for these concentrated animal feeding operation permit.

[00:30:11] Speaker 01:
Nevada law says that the system has to be designed to withstand a 25-year flood event.

[00:30:18] Speaker 01:
But BLM said, no, we want you to design the system to withstand a 100-year flood event.

[00:30:25] Speaker 01:
And the site for that is SER 16.

[00:30:29] Speaker 01:
So BLM reasonably determined that the impacts would be negligible because the contractor would have to obtain and comply with the concentrated animal feeding operation permit.

[00:30:39] Speaker 01:
Plus, there were additional BLM requirements that the contractor had to comply with.

[00:30:44] Speaker 01:
And BLM's rationale there is that SER 22 to 23.

[00:31:08] Speaker 01:
I want to finally note, Your Honor, that I think the BLM complied with the National Environmental Policy Act.

[00:31:20] Speaker 01:
Plaintiffs' complaints otherwise are fly-specking, particularly given the recent Supreme Court decision in Seven County Infrastructure Coalition, which emphasized the importance of deference in NEPA cases.

[00:31:32] Speaker 01:
And this court recently held

[00:31:36] Speaker 01:
that Seven County applies to environmental assessments, which is the type of NEPA analysis that we have here.

[00:31:41] Speaker 01:
In Cascadia Wildlands versus BLM, only the Westlaw site is available at this time.

[00:31:49] Speaker 01:
The Westlaw site is 2025 Westlaw 2460946.

[00:31:54] Speaker 01:
At star 23, the court said, although Seven County involved an environmental impact statement rather than an environmental assessment, we find its teachings fully applicable here.

[00:32:18] Speaker 01:
If the court has no further questions.

[00:32:23] Speaker 01:
It doesn't look as if we do.

[00:32:25] Speaker 01:
Thank you.

[00:32:25] Speaker 01:
It should affirm your honor.

[00:32:29] Speaker 01:
I'm sorry.

[00:32:29] Speaker 01:
One more thing.

[00:32:29] Speaker 01:
We did not brief standing.

[00:32:31] Speaker 01:
We can provide supplemental briefing on that.

[00:32:34] Speaker 01:
I will note that there's a 1988 Ninth Circuit case that says that plaintiffs can have standing if they will visit wild horses in an off range facility and be upset by it.

[00:32:47] Speaker 01:
There are other circuits that hold that you don't have standing if you go out and upset yourself by choosing to go somewhere, but there is that case.

[00:32:56] Speaker 03:
Thank you.

[00:33:13] Speaker 04:
So there's a couple of things I just want to address.

[00:33:15] Speaker 04:
So regarding the shelter, on SCR 55, the guidelines specifically said shelter will be evaluated and determined by managers as appropriate for their region and function of their facility and the condition of the animals under their care.

[00:33:33] Speaker 04:
BLM never did this.

[00:33:35] Speaker 04:
And again, shelter, the shelter that opposing council discusses is only for sick animals.

[00:33:41] Speaker 04:
Healthy animals have no shelter.

[00:33:43] Speaker 04:
despite the fact that this is in desert temperatures that spring from scorching heat to below freezing.

[00:33:52] Speaker 04:
And one other point is that the CAFO permit

[00:33:57] Speaker 04:
The Ninth Circuit has held that this is the CAFO permit in particular is a NPDES permit, which is under the Clean Water Act.

[00:34:05] Speaker 04:
And the Ninth Circuit has held many times that a non-NEPA document, let alone one prepared and adopted by the state government, cannot satisfy a federal agency's obligations under NEPA.

[00:34:16] Speaker 02:
But haven't we also said that if the permit addresses the federal issue,

[00:34:23] Speaker 02:
Can't the agency rely on requiring the contractor to meet state permit requirements in order to make sure that the waste does not enter groundwater in the vicinity?

[00:34:36] Speaker 04:
Your honor, is there a specific case you were talking about?

[00:34:40] Speaker 04:
I'm not sure where that was held.

[00:34:43] Speaker 02:
Well, I think we have said that it is not improper for an agency

[00:34:51] Speaker 02:
To look to state standards, if it is addressing the federal issue, which you're raising here that the agency should have, I guess, adopted special standards or your honor, I think they're allowed to look at the standards, but they are not allowed to use those standards as a replacement for their.

[00:35:15] Speaker 02:
obligation to take a hard look at the impacts underneath those standards require the contractor to build berms and to address runoff of groundwater and that sort of thing.

[00:35:28] Speaker 02:
And that happens to be in compliance with the state permit that also addresses the federal concern.

[00:35:32] Speaker 02:
Does it not?

[00:35:34] Speaker 04:
Your honor in environmental defense center, the bohem, the ninth circuit specifically held that a nifty's permit, which is the same permit permit issue here can't substitute for the, for an agency's duty to determine whether the impacts are insignificant.

[00:35:49] Speaker 02:
And again, the reason for that is because the agency look, if that's what the contract is being required to do, what I don't understand in your argument is why can't the agency look to those requirements in order to determine

[00:36:03] Speaker 02:
That there's not going to be a problem with polluting the groundwater if the agency obtains or excuse me, if the contractor obtains a capital permit and operates the facility in compliance with it.

[00:36:16] Speaker 02:
Because you're telling me our case law says they can't that the agency can't do that and trying to determine whether or not in the environmental assessment that a full environmental impact statement is required.

[00:36:27] Speaker 04:
Um, your honor, I see a run out of time, but I'll answer this.

[00:36:30] Speaker 04:
You can answer the question.

[00:36:32] Speaker 04:
Okay.

[00:36:32] Speaker 04:
Um, so there's a couple of points to this.

[00:36:34] Speaker 04:
First of all, the general CAFO permit requirements do not address the specific impact of this facility.

[00:36:41] Speaker 04:
Like you said, it deals with chickens.

[00:36:43] Speaker 02:
It deals with, um, but it's the same problem council.

[00:36:46] Speaker 02:
We, you're trying to address a manure problem, whether it comes from chickens, pigs, sheep, cattle, or wild horses and burro.

[00:36:56] Speaker 02:
It's the same problem is that we don't we don't want the waste from these facilities polluting the ground water.

[00:37:03] Speaker 04:
Your honor there's.

[00:37:03] Speaker 04:
So complying with the CAFO permit doesn't mean that there's not significant impacts under NEPA again so that.

[00:37:13] Speaker 04:
The permit itself is like you can't discharge into waters of the United States unless you have a NYPDES permit.

[00:37:22] Speaker 04:
So it's not saying that there's going to be no discharge at all, but that they have to comply with certain standards.

[00:37:32] Speaker 04:
And that's what the DC Circuit held in Calvert Cliffs was saying that following a

[00:37:38] Speaker 04:
A permit just shows that they didn't exceed those regulatory standards, and not that there will be no significant environmental harm.

[00:37:48] Speaker 04:
And again, that's what the Ninth Circuit held in Environmental Defense Center v. Rowan specifically.

[00:37:54] Speaker 02:
But if the contract requires the contractor to take affirmative steps to address this problem, and the contractor has, in fact, established waste holding ponds,

[00:38:08] Speaker 02:
berms, graded the pins so that the surface water runs off.

[00:38:15] Speaker 02:
Why can't the agency look at that in determining whether or not this particular concern is adequately addressed in the operation of the facility?

[00:38:25] Speaker 04:
Again, they never did look at that.

[00:38:27] Speaker 04:
They just said that these issues are outside the scope of this analysis.

[00:38:32] Speaker 04:
They didn't actually take a hard look at these issues.

[00:38:35] Speaker 02:
So I thought I thought those requirements were included in.

[00:38:38] Speaker 02:
In the contract that you've got it, you've got to get a permit and you have to follow.

[00:38:44] Speaker 02:
The requirements of the permit so that we ensure that that the manure doesn't pollute the groundwater.

[00:38:52] Speaker 04:
Yes, your honor, but the.

[00:38:54] Speaker 04:
The problem is that.

[00:38:58] Speaker 04:
BLM itself never explained how these specific requirements will make the impacts insignificant under these circumstances.

[00:39:09] Speaker 04:
The CAFO permit had not even been started when they had this.

[00:39:15] Speaker 04:
So its violation is even worse than in the cases saying you can't rely on a permit, because here there was no permit.

[00:39:21] Speaker 02:
Well, are you taking the position that

[00:39:23] Speaker 02:
The facility as operated is polluting the surrounding groundwater in Winnemucca.

[00:39:30] Speaker 04:
Your honor, there are specific concerns that would show that it could be, but they didn't.

[00:39:35] Speaker 04:
And we raised those concerns.

[00:39:37] Speaker 02:
And if you don't have any evidence in the record, we don't have any evidence that it actually is a problem.

[00:39:42] Speaker 04:
No, when this case was brought, it wasn't operating at the time.

[00:39:46] Speaker 04:
And again, the EPA has said that 75% of CAFOs will experience discharge based on standard operating profiles.

[00:39:55] Speaker 04:
So again, it was their duty to take an independent hard look at these impacts.

[00:40:00] Speaker 04:
And instead, they said it was outside the scope.

[00:40:03] Speaker 03:
Thank you.

[00:40:03] Speaker 03:
Thank you.

[00:40:05] Speaker 03:
Thank you both for your arguments this morning, this case is submitted.

[00:40:10] Speaker 03:
Ms.

[00:40:10] Speaker 03:
Jaffe, we thank you in particular for being here during the government shutdown.

[00:40:16] Speaker 03:
And we are adjourned for the day.

[00:40:19] Speaker 03:
Thank you.