
    CLOUD FOUNDATION, INC., et al., Plaintiffs, v. Ken SALAZAR, Secretary of the Interior, et al., Defendants.
    No. 1:09-CV-1651.
    United States District Court, District of Columbia.
    Aug. 25, 2010.
    Opinion on Rehearing Sept. 29, 2010.
    
      D. Christopher Ohly, Schiff Hardin, LLP, Washington, DC, Valerie J. Stanley, Laurel, MD, Bruce A. Wagman, Schiff Hardin, LLP, San Francisco, CA, for Plaintiff.
    John B. Grosko, U.S. Department of Justice, Environment and Natural Resource, John S. Most, Department of Justice, Washington, DC, for Defendant.
   OPINION & ORDER

JAMES S. GWIN, District Judge.

In this challenge to federal management of wild horses on the Pryor Mountain Wild Horse Range in southern Montana and northern Wyoming, the government moves to dismiss for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). [Dkt. 16.] The government contends that because it has already completed the horse round-up challenged by the plaintiff environmental groups, this action is moot. [Dkt. 16.] In response, the Plaintiffs argue that the “capable of repetition yet evading review” exception to the mootness doctrine applies, and they also move for leave to amend their complaint to add claims that are not moot. [Dkt. 18; Dkt. 31.] For the reasons below, the Court GRANTS the Plaintiffs’ motion for leave to file a second amended complaint and GRANTS IN PART and DENIES IN PART the government’s motion to dismiss.

The Wild Free-Roaming Horses and Burros Act, 16 U.S.C. §§ 1331-1340, charges the Secretary of the Interior with “managing] wild free-roaming horses and burros in a manner that is designed to achieve and maintain a thriving natural ecological balance on the public lands.” Id. § 1333(a). The Act directs that when the Bureau of Land Management (as delegate of the Secretary of the Interior) determines “that an overpopulation exists on a given area of the public lands and that action is necessary to remove excess animals,” the Bureau shall “immediately remove excess animals from the range so as to achieve appropriate management levels.” Id. § 1333(b)(2).

This action arose after the Bureau determined that there was an overpopulation of wild horses on the Pryor Mountain Wild Horse Range, located about 50 miles south of Billings, Montana. [Dkt. 13.] Consequently, in August 2009, the Bureau announced a plan to round up and remove 70 of the 190 wild horses — allegedly to prevent overgrazing and maintain an ecologically sustainable population. [Dkt. 13.]

When the Bureau announced the gather plan and solicited public comments, it issued an Environmental Assessment finding that the gather would have no significant environmental impact. [Dkt. 13.] Accordingly, the Bureau declined to prepare an Environmental Impact Statement — a document mandated for all environmentally significant agency actions by the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq. [Dkt. 13.] The Bureau based this Finding of No Significant Impact in reliance upon its departmental manual’s statement that “[processing ... excess wild horses and burros” is categorically excluded from NEPA’s requirements. [Dkt. 13.]

The plaintiff environmental groups then filed .this action to challenge the gather plan. [Dkt. 1.] Their first amended complaint asserted three claims: (1) the Bureau’s Environmental Assessment was arbitrary and capricious under the Administrative Procedure Act, 5 U.S.C. § 706, because it used abnormally dry baseline years to calculate the ecologically sustainable herd level and because it failed to consider that a smaller population threatens the herd’s genetic diversity; (2) the Bureau’s gather plan failed to adequately protect the horses’ welfare, in violation of the Wild Free-Roaming Horses and Burros Act; and (3) the Bureau’s categorical exclusion of excess horse removal from NEPA’s requirements was arbitrary and capricious under the Administrative Procedure Act. [Dkt. 13.] The Plaintiffs sought, among other relief, a temporary restraining order against the gather. [Dkt. 13.]

After expedited briefing and argument, this Court denied the Plaintiffs’ TRO request. The Plaintiffs did not appeal that denial. The Bureau then conducted the gather in September 2009, removing 57 horses from the Range. The Bureau sold five of those horses and gave the other 52 for adoption. [Dkt. 16-2 at ¶ 5(c)-(e).]

The government now moves to dismiss this action as moot, contending that because the gather is complete, this Court can no longer grant any effective relief. [Dkt. 16.] In response, the Plaintiffs argue that the Bureau’s allegedly unlawful gather is “capable of repetition yet evading review.” [Dkt. 18.]

The Plaintiffs also move for leave to file a second amended complaint. [Dkt. 31.] Their proposed second amended complaint contains two changes from the first amended complaint. [Dkt. 31-2.] First, it abandons the NEPA claim that the Bureau’s Environmental Assessment for the September 2009 gather was deficient. [Dkt. 31-2.] Second, it adds three allegations to the Wild Free-Roaming Horses and Burros Act claim: (1) the Bureau’s May 2009 Herd Management Area Plan violated the Act; (2) the Bureau’s construction of a fence at the Range’s northern boundary violated the Act; and (3) the June 1987 Custer National Forest Plan and the May 2009 Herd Management Area Plan violated the Act by excluding areas historically used by the herd. [Dkt. 31-2 at ¶¶ 76-78.] The third claim — challenging the Bureau’s use of categorical exclusions for horse gathers — is unchanged from the first amended complaint. [Dkt. 31-2 at ¶ 80.]

Notwithstanding Federal Rule of Civil Procedure 15(a)’s direction that leave to amend “shall be freely given when justice so requires,” the government opposes the Plaintiffs’ motion for leave on two grounds. [Dkt. 32.] First, the government argues that the second amended complaint fails to cure the mootness defect. [Dkt. 32 at 11-14.] Second, the government contends that the amendment would be both futile (because the challenge to the 1987 Custer National Forest Plan is time-barred) and prejudicial (because the new allegations were known to the Plaintiffs at the time of the first amended complaint and because the government would have only 14 days to answer under Federal Rule of Civil Procedure 15(a)(3)). [Dkt. 32 at 14-17.]

The government’s prejudice argument fails. Although the Plaintiffs concede that they knew of the newly added allegations when they filed their first amended complaint, they could not have asserted those claims at that time. The Plaintiffs’ challenge to the Herd Management Area Plan was still before the Interior Board of Land Appeals and thus was not administratively exhausted. [Dkt. 34 at 5.] And the Plaintiffs’ challenge to the northern boundary fence was not yet ripe; the government did not begin to solicit bids to construct the fence until June 2010. [Dkt. 34 at 5.] Moreover, the Plaintiffs’ willingness to consent to an extension of time for the government to answer the second amended complaint stops the government’s concern of prejudice. [Dkt. 34 at 6-7.]

The government is also incorrect that the Plaintiffs’ claim challenging the 1987 Custer National Forest Plan is time-barred. [Dkt. 32 at 15 n.3.] Although “an amendment adding a new ground for relief to the complaint must contend with the applicable statute of limitations,” Jones v. Bernanke, 557 F.3d 670, 674 (D.C.Cir. 2009), the 1987 Custer National Forest Plan that the Plaintiffs challenge is not “final agency action” that triggers the statute of limitations, see Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 732, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998). “Final agency action” did not occur until the Bureau proposed to construct a fence along the boundaries outlined in the 1987 plan. Thus, adding the claim challenging the 1987 Custer National Forest Plan is not futile on statute-of-limitations grounds.

Accordingly, because the government has not shown “any apparent or declared reason' — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.” — for denying leave to amend, Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962), the Court grants the Plaintiffs’ motion.

The government nevertheless argues that all of the Plaintiffs’ claims in both complaints became moot when the Bureau completed the gather in September 2009. [Dkt. 16-1 at 10-13; Dkt. 32 at 11-14.] The Plaintiffs’ second amended complaint drops their NEPA challenge to the September 2009 gather, but in any event, the government is correct that the September 2009 challenge is moot. Faced with a nearly identical challenge to a series of horse gathers, the D.C. Circuit held that once the gathers had been completed, it became “ ‘impossible for the court to grant any effectual relief whatever’ with respect to the challenged gathers,” and thus the challenge was moot. Fund for Animals, Inc. v. U.S. Bureau of Land Mgmt., 460 F.3d 13, 22 (D.C.Cir.2006) (quoting Beethoven, com LLC v. Librarian of Cong., 394 F.3d 939, 950 (D.C.Cir.2005)). There — as here — the plaintiffs argued that the “capable of repetition yet evading review” exception to the mootness doctrine applied, but the D.C. Circuit rejected that argument, reasoning that the “highly fact-specific” nature of each gather made the particular challenged conduct “ ‘unlikely to be duplicated in the future.’ ” Id. at 22-23 (quoting People for the Ethical Treatment of Animals, Inc. v. Gittens, 396 F.3d 416, 421 (D.C.Cir.2005)). Thus, Fund for Animals compels the conclusion that the Plaintiffs’ claims challenging the September 2009 gather are moot.

But the Plaintiffs’ other claims are not moot. First, several of their claims under the Wild Free-Roaming Horses and Burros Act challenge (among other implementations of the May 2009 Herd Management Area Plan) the Bureau’s construction of fences to restrict wild horses to particular areas of the Range. [Dkt. 31-2 at ¶¶ 67-78.] If the Plaintiffs ultimately prevail on the merits of those claims, the Court can grant effective relief, either by requiring the Bureau to remove existing fences or by enjoining the Bureau from constructing new fences.

Second, the Plaintiffs’ claim challenging the Bureau’s categorical exclusion of horse gathers from NEPA’s requirements falls within the “capable of repetition yet evading review” exception to mootness because it “seeks declaratory relief as to an ongoing policy.” [Dkt. 31-2 at ¶ 80.] See Del Monte Fresh Produce Co. v. United States, 570 F.3d 316, 321 (D.C.Cir.2009). To be sure, to sustain jurisdiction over a challenge to an ongoing policy, the Plaintiffs “must demonstrate ‘standing to bring such a forward-looking challenge and [that] the request for declaratory relief is ripe.’ ” Id. at 321 (citation omitted; alteration in original). However, the Plaintiffs have met both of these requirements. They have adequately alleged — and the government does not dispute — their standing to challenge the Bureau’s compliance with NEPA requirements. See Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 664 (D.C.Cir.1996) (en banc) (“[A] plaintiff may have standing to challenge the failure of an agency to abide by a procedural requirement only if that requirement was ‘designed to protect some threatened concrete interest’ of the plaintiff.... [T]he plaintiff must show that the government act performed without the procedure in question will cause a distinct risk to a particularized interest of the plaintiff.”) (citation omitted). [See Dkt. 31-2 at ¶¶ 4-11 (Plaintiffs’ particularized interests in protection of wild horses on Pryor Mountain Range).] And their challenge is ripe for review because it is a purely legal question fit for judicial decision. See Eagle-Picher Indus., Inc. v. E.P.A., 759 F.2d 905, 915 (D.C.Cir.1985).

Accordingly, neither the Plaintiffs’ Wild Free-Roaming Horses and Burros Act claim nor their claim challenging the Bureau’s use of categorical exclusions for horse gathers is moot.

For the foregoing reasons, the Court GRANTS the Plaintiffs’ motion for leave to file a second amended complaint and ORDERS that the government answer within 30 days of the filing of this opinion and order. Further, the Court GRANTS the government’s motion to dismiss as moot the Plaintiffs’ claims challenging the Bureau’s September 2009 gather. However, the Court DENIES the government’s motion to dismiss the remainder of the Plaintiffs’ claims.

IT IS SO ORDERED.

OPINION & ORDER [Resolving Doc. No. 39.]

Under Federal Rule of Civil Procedure 54(b), the Defendants ask this Court to reconsider its Opinion and Order granting the Plaintiffs leave to file an amended complaint and denying in part the Defendants’ motion to dismiss. [Doc. 39.] The government says the Court erred when it determined that the Plaintiffs’ third claim is not moot. [Id.] In addition, the government adds that the Court should grant it leave to respond, rather than simply answer, the Plaintiffs’ now-filed second amended complaint. The Plaintiffs oppose. [Doc. 12.] For the reasons below, the Court DENIES IN PART and GRANTS IN PART the government’s motion.

On October 9, 2009, the government moved to dismiss claims set forth in the Plaintiffs’ first amended complaint for lack of jurisdiction. [Doc. 16.] It argued that completion of the September 2009 gather and removal of wild horses on the Pryor Mountain Wild Horse Range precluded effective relief for the Plaintiffs’ claims relating to that action. [Id.] In response, the Plaintiffs argued that they sought to challenge the Bureau of Land Management policy behind the gather, as an action “capable of repetition yet evading review.” [Doc. 18.] Before this Court resolved the motion to dismiss, the Plaintiffs moved for leave to file a second amended complaint. [Doc. 31.] Their proposed second amended complaint dropped one allegation and added three others, challenging: (1) the Bureau’s May 2009 Herd Management Area Plan, (2) the Bureau’s construction of a fence at the Range’s northern boundary, and (3) the June 1987 Custer National Forest Plan and the May 2009 Herd Management Area Plan. [Doc. 31-2 at ¶¶ 76-78.] This second amended complaint retained the Plaintiffs’ challenge to the Bureau’s use of categorical exclusions for horse gathers. [Id, at ¶ 50.] The Plaintiffs attached the text of this proposed complaint to their motion. [Doc. 31-2.]

On August 25, 2010, this Court resolved both motions. Its Opinion and Order first granted the Plaintiffs’ motion for leave to file a second amended complaint. The Court then held that the Plaintiffs’ challenges to the September 2009 gather were moot, but preserved the Plaintiffs’ other claims — including their challenge to the Bureau’s categorical exclusion for horse gathers. In so holding, the Court looked to the text of the Plaintiffs’ proposed second amended complaint. [Doc. 35.] On the same day as the Court issued its Opinion and Order, the Plaintiffs filed their second amended complaint. [Doc. 36.]

The government asks the Court to reconsider that Opinion and Order, pursuant to Federal Rule of Civil Procedure 51p(b). See F.R.C.P. 5k(b) (permitting a court to revise any order adjudicating fewer than all claims in an action before final judgment). Under Rule 54(b), courts have broad discretion when deciding motions for reconsideration. Isse v. American University, 544 F.Supp.2d 25, 29 (D.D.C.2008). A court must determine whether “justice requires” reconsideration, and may base this determination on whether it “patently” misunderstood the parties, whether its decision reached beyond the adversarial issues presented, or whether some harm would flow from denial of the motion. Id.

The government says this Court incorrectly based its holding on the Plaintiffs’ lodged, but unfiled, second amended complaint. It contends that although the second amended complaint challenges the Bureau’s ongoing categorical exclusion policy, the Plaintiffs’ first amended complaint — which the government says should control this Court’s analysis — challenged only one instance of the policy’s operation. Accordingly, the government says, completion of the September 2009 gather rendered that challenge moot, thus divesting this Court of jurisdiction over those claims.

The government’s argument misconstrues the propriety and the import of the Court’s leave to amend. Under Federal Rule of Civil Procedure 15(a), this Court freely granted the Plaintiffs leave to file a second amended complaint. At that point, the second amended complaint, rather than the first, guided the Court’s analysis. To have then considered the government’s motion to dismiss as against a prior complaint would have been pointless — “[o]nce an amended pleading is interposed, the original pleading no longer performs any function in the case.” 6 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1476 (3d ed.2010). The Plaintiffs ultimately filed a second amended complaint identical to the one they proposed. [Doc. 36.] The Court thus declines to reconsider its Opinion and Order on these grounds, finding no misunderstanding, overreaching, or harm to the government.

In addition, the government requests the opportunity to move to dismiss the second amended complaint. In its opposition to the Plaintiffs’ motion for leave to amend the complaint, the government argued that the second amended complaint would fail to cure the mootness defect and would ultimately prove futile on statute of limitations grounds. [Doc. 32 at 11-17.] This Court’s August 25, 2010 Opinion and Order denied those arguments. [Doc. 35 at lp-6.] The government now points to new claims in the second amended complaint and asks for leave to respond under the stricter motion to dismiss standard. [Doc. 39-1 at 10.] So that the government may more fully present its challenges to any new arguments, this Court grants the Defendants 14 days from the date of this Opinion and Order to file a motion to dismiss new claims in the second amended complaint.

For the foregoing reasons, the Court DENIES the government’s request that this Court reconsider its Opinion and Order preserving the Plaintiffs’ categorical exclusion challenge. However, the Court GRANTS the government 14 days to respond, under Federal Rule of Civil Procedure 12(b), to the Plaintiffs’ second amended complaint.

IT IS SO ORDERED. 
      
      . The Plaintiffs argue that the Bureau's conduct evades review because this Court’s denial of their TRO request was not appealable. [Dkt. 34 at 6.] But the Plaintiffs’ premise appears incorrect. See Berrigan v. Sigler, 475 F.2d 918, 919 (D.C.Cir.1973) (per curiam) (“While the denial of a temporary restraining order is normally not appealable, an exception is made where the denial serves for all practical purposes to render the cause of action moot or where appellant's rights will be irretrievably lost absent review.”).
     