(November 5, 2018) This past Friday, November 2, 2018, Judge Mosman of the U.S. District Court for the District of Oregon heard oral argument on our motion for a Preliminary Injunction to stop the Bureau of Land Management (BLM) from surgically spaying 100 wild mares from the Warm Springs Herd Management Area in Oregon. The action is part of a lawsuit against the BLM filed by AWHC, The Cloud Foundation and its executive director Ginger Kathrens, The Animal Welfare Institute and wild horse photographer Carol Walker.
The Preliminary Injunction motion asked the court to halt the BLM’s imminent wild horse sterilization experiments until the court can reach a final decision in the case. Typically, a plaintiff will request a preliminary injunction when there is some imminent harm that does not provide sufficient time for the court to make a decision on the merits (on the case a whole). This was the case for the mares of Warm Springs because the BLM was set to begin the experiments as early as November 5, 2018. With such an impending deadline, our strategy immediately became to set forth the strongest arguments we had in order to stop the experiments in time via the preliminary injunction.
On Friday, Judge Mosman showed that he thoroughly reviewed our briefs and was well acquainted with the issue. Plaintiffs addressed the court first and began with the Administrative Procedure Act (APA) claims: (1) the BLM’s inexplicable dropping of “social acceptability” from consideration throughout the environmental assessment and (2) the BLM’s decision to drop animal welfare observations after Colorado State University (CSU) withdrew from the study. On social acceptability, Plaintiffs explained that a major objective of the research as previously proposed in 2016 was to determine whether the sterilization procedure – which involves manually removing mares’ ovaries through a surgical incision in their vaginal walls – was “socially acceptable.”
BLM did not provide any explanation for why this consideration had been dropped between 2016 and 2018 and noted that the Plaintiffs raised this concern at every opportunity provided for public comment without receiving any explanation from the agency. On the welfare observations issue, Plaintiffs explained that the agency made no attempt to replace CSU after the University withdrew and noted that the BLM had therefore failed to provide any method for collecting information about the welfare of the horses – an important aspect that the agency would need in order to determine whether the procedure was in fact a humane, feasible option.
Nick Lawton, associate with Meyer Glitzenstein and Eubanks, the law firm representing AWHC and our co-plaintiffs, addressed the court on our First Amendment argument starting with the issue of historical access, an important consideration for First Amendment claims. Judge Mosman asked several questions about the difference between historical access to roundups and the historical access to procedures on wild horses. Plaintiffs contended that wild horse management is a class of actions with a history of access, including both roundups and procedures. Finally, Plaintiffs explained to the court that, at the very least, the forms of observation requested – unobtrusive cameras and independent veterinary observation – would clearly not interfere with BLM’s stated interests in the safety and effectiveness of the experiments.
Next, the BLM (“Defendants”), represented by an attorney from the Department of Justice, addressed the court on the same issues. On the APA claims the Defendants failed to provide Judge Mosman with an actual answer on the social acceptability issue. Instead, Defendants relied on the “purpose and need” statement from the environmental assessment as justification for the failure to consider this aspect of the study. On the issue of the agency’s lack of welfare observations the Defendants failed to restrict their oral argument to the administrative record before the court, but eventually pointed to the fact that there will be a “functional equivalent” of these observations in the observations that the BLM staff will do post-surgery. Judge Mosman then delved into the BLM’s claims of harm and cost incurred if the preliminary injunction were granted. At this point, he concluded that the BLM’s claims did not hold water because the agency would not be harmed, as it would simply be in the same situation it is in currently.
On the First Amendment issue, Defendants were unable to give a clear answer as to whether the BLM has allowed for the most access that it can. On the request for cameras, Defendants claimed that the small cameras Plaintiffs proposed posed a safety risk and could harm BLM staff and any potential observers while handling horses in and out of the chute. On the request to include a trained, veterinary observer, Judge Mosman asked why the BLM refused to allow one such observer when the agency had originally planned for three to be present when CSU was involved. Defendants claimed that if it allowed one member of the public, then soon it would have to allow more. Judge Mosman did not seem receptive to this argument as he then asked who of those proposed multiple members of the public would have a judicial order providing them access.
Plaintiffs were allowed to respond, then Judge Mosman asked for a brief recess before making his decision. Before long, he was back and ruled primarily in Plaintiff’s favor, issuing the Preliminary Injunction to halt the experiments until a full decision could be made. His order expressed:
On the First Amendment claims:
Plaintiff had a likelihood of success on their claims because (1) he found that there has been limited historical access to such wild horse management by the agency. Judge Mosman noted that because plaintiff Ginger Kathrens was provided access to such procedures by her position on the Wild Horse and Burro Advisory Board, to stand in as a proxy for the general public, the agency has allowed for limited public access in the past. (2) Further Judge Mosman noted that the Plaintiffs’ requests would not impair the agency’s stated interests. Here, the court was not concerned with whether Plaintiffs’ requests would advance the government’s interests in performing the procedures, but more so that the Plaintiffs’ requests were in line with the requirement for access – a traditional primary concern with First Amendment claims.
Judge Mosman then noted the issue of the equities, the balance between the harm to the Plaintiffs’ and the harm to the BLM. He noted that the proffered harms to the BLM were modest and that the denial of access, under the First Amendment, tilted the balancing of the equities in favor of the Plaintiffs.
Therefore, Judge Mosman issued a Preliminary Injunction on the First Amendment claims.
On the APA claims:
First, Judge Mosman addressed the issue of the agency’s failure to implement welfare observations after CSU withdrew. He found that the government’s response to this claim was adequate and that the Plaintiffs’ were not likely to succeed on this claim. When he balanced the equities, he found that the equities tipped in favor of the government.
Next, Judge Mosman addressed the issue of social acceptability by first explicitly noting that the government’s response to this issue was plainly not an explanation. He found the explanation that the government did provide to be arbitrary, and therefore found that the Plaintiffs’ had a likelihood for success on this issue. Finally, in balancing the equities, he noted that the balance tipped modestly in favor of the Plaintiffs.
Therefore, on the APA claims, Judge Mosman granted the plaintiffs’ a preliminary injunction on the social acceptability claim.
In conclusion, the judge granted a Preliminary Injunction to AWHC and our co-plaintiffs on two of the three counts raised in our motion. This actions halts the experiments, which were scheduled to begin today (November 5). The case will now go on to a hearing on the merits, at which time the judge will consider in detail the claims raised in our lawsuit and issue a final ruling. Because the BLM’s experimental design requires mares at different stages of pregnancy, it’s possible that the mares targeted for the experiments will give birth (or be at advanced stages of pregnancy) by the time the case is heard. This may shut down the controversial research for at least a year as a result.