The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 BONNIE KOHLERITER, et al., No. 2:25-cv-02446-DJC-JDP
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Plaintiffs,
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v. ORDER
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UNITED STATES DEPARTMENT OF
15 AGRICULTURE, et al.,
16 Defendants.
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19 Plaintiffs have filed a Motion for Temporary Restraining Order and Preliminary
20 Injunction seeking to prevent the scheduled gather of wild horses at the Devil’s
21 Garden Plateau Wild Horse Territory. Presently before the Court is the Motion for
22 Temporary Restraining Order, which Defendants have opposed. The Court heard oral
23 argument on the Motion on August 29, 2025, at the conclusion of which the matter
24 was submitted.
25 For the reasons stated below, the Court DENIES Plaintiffs’ Motion for
26 Temporary Restraining Order.
27 ////
28 ////
1 BACKGROUND
2 The management of the Devil’s Garden Plateau Wild Horse Territory by federal
3 agencies has been a long running source of disputes spanning more than a decade.
4 The Devil’s Garden Plateau Wild Horse Territory is a portion of the Modoc National
5 Forest in Northern California. (Mot. (ECF No. 4) at 10; Opp’n (ECF No. 10) at 4.)
6 In 1975 two portions of the Devil’s Garden Plateau were designated as “Wild
7 Horse Territory.” (Mot. at 10–11; Opp’n at 5.) The United States Forest Service is
8 responsible for management of most of that area today. (See Mot. at 7.) Designated
9 wild horse territories are areas identified for protecting and maintaining wild free-
10 roaming horses under the Wild and Free-Roaming Horses and Burros Act (“Wild
11 Horse Act”). (Mot. at 20; Opp’n at 2.) The agencies in charge of these territories
12 manage the population of the wild horses within the territory and seek to maintain a
13 population in line with an Appropriate Management Level (“AML”). (See Mot. at 11;
14 Opp’n at 3.) This allows for the wild horse populations to exist while still maintaining
15 ecological balance and avoiding overpopulation. (Opp’n at 3.) As discussed below,
16 what constitutes the current AML is a point of contention between the parties. Relying
17 on a 2013 Wild Horse Territory Management Plan (the 2013 Plan), Defendants argue
18 the upper limit of the AML is 402 horses, while the lower limit of the AML is 206.
19 (Opp’n at 5 citing (ECF No. 10-6 at 6).) Plaintiffs for their part believe the operative
20 AML is between 275 to 335 horses as set in the 1991 Modoc National Forest Land and
21 Resource Management Plan. (Mot. at 11 citing (ECF No. 4-1, Ex. C).)
22 In 2024, Defendant United States Forest Service conducted a census showing a
23 wild horse population of 723 horses. (Mot. at 15–16; Opp’n at 12–13.) Based on this
24 census, Forest Service removed 407 wild horses in the of Fall 2024 to Winter 2025.
25 (Mot. at 15–16.) On August 15, 2025, Forest Service announced plans to conduct a
26 “gather” of wild horses in the Devil’s Garden Plateau Wild Horse Territory with the
27 helicopter portion of that gather occurring September 2, 2025, during which the
28 Forest Service would gather 350 wild horses from the territory and ultimately remove
1 them from the area. (Mot. at 7; Opp’n at 8.) The Forest Service asserts that this gather
2 is necessary to maintain the wild horse population in the Devil’s Garden Plateau Wild
3 Horse Territory at the AML. (Opp’n at 8.) The appropriate size for the gather was
4 determined based on a “ground survey” that showed a wild horse population of 500
5 to 600 horses. (Id.) Plaintiffs are seeking to stop the planned September gather,
6 arguing that Defendants have violated National Environmental Policy Act (“NEPA”),
7 the Wild Horse Act, and the First Amendment.
8 LEGAL STANDARD
9 The standards for issuing a temporary restraining order and a preliminary
10 injunction are “substantially” similar. See Stuhlbarg Int'l Sales Co. v. John D. Brush &
11 Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). To obtain preliminary injunctive relief,
12 Plaintiff must show (1) likelihood of success on the merits; (2) likelihood of irreparable
13 harm in the absence of preliminary relief; (3) that the balance of the equities tips in his
14 favor; and (4) that an injunction is in the public interest. Winter v. Nat. Res. Def.
15 Council, Inc., 555 U.S. 7, 20 (2008). Where a plaintiff can show that there are serious
16 questions going to the merits, then a preliminary injunction may still be issued if the
17 balance of hardships tips sharply in the plaintiff’s favor, and the other two Winter
18 factors are satisfied. Friends of the Wild Swan v. Weber, 767 F.3d 936, 942 (9th Cir.
19 2014) (internal quotation marks and citations omitted).
20 DISCUSSION
21 I. Likelihood of Success on the Merits
22 Plaintiffs argue that they have a likelihood of success on the merits of all three
23 of the causes of action in their Complaint. These are (1) the Forest Service violated
24 NEPA when it failed to analyze the environmental impacts of removing horses from
25 the Devil’s Garden Plateau Wild Horse Territory; (2) the Forest Service violated the
26 Wild Horse Act in making an inappropriate determination regarding the existence of
27 excess wild horses determination and the necessity of removal; and (3) the Forest
28 Service violated Plaintiffs’ First Amendment rights by limiting observations of the
1 planned September gather. The Court finds that Plaintiff has established a likelihood
2 of success on the NEPA claim but has failed to establish a likelihood of success on the
3 merits of the WHA and First Amendment claims.
4 A. NEPA
5 Under NEPA, a federal agency must prepare an Environmental Impact
6 Statement (“EIS”) when it proposes to undertake “major Federal actions significantly
7 affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C); Morongo
8 Band of Mission Indians v. F.A.A., 161 F.3d 569, 575 (9th Cir. 1998). To determine
9 whether an EIS is needed, an agency will first prepare an Environmental Assessment
10 (“EA”) to assess whether the project will have a significant effect on the environment,
11 thereby requiring an EIS. Morongo Band of Mission Indians, 161 F.3d at 575. Where
12 “substantial questions are raised as to whether a project . . . may cause significant
13 degradation of some human environmental factor,” an EIS is required. LaFlamme v.
14 FERC, 852 F.2d 389, 397 (9th Cir.1988) (internal quotations and emphasis omitted). If
15 the agency instead determines there will be no significant impact, the agency will
16 issue a Finding of No Significant Impact (“FONSI”) and is not required to issue an EIS.
17 Morongo Band of Mission Indians, 161 F.3d at 575.
18 Plaintiffs’ NEPA claims are brough under the Administrative Procedures Act
19 (“APA”). See, e.g., Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1238
20 (9th Cir. 2005). Under the APA, a decision may be set aside if it is “arbitrary,
21 capricious, an abuse of discretion, or otherwise not in accordance with law.” Id.; 5
22 U.S.C. § 706(2)(A). Such review “is narrow and a court is not to substitute its judgment
23 for that of the agency.” Motor Vehicle Mfgrs. Ass’n v. State Farm Mut. Auto. Ins. Co.,
24 463 U.S. 29, 43 (1983). Accordingly, a court may only set aside a decision if the
25 agency:
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[H]as relied on factors which Congress has not intended it
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to consider, entirely failed to consider an important aspect
28 of the problem, offered an explanation for its decision that
1 runs counter to the evidence before the agency, or is so
implausible that it could not be ascribed to a difference in
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view or the product of agency expertise.
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4 Id.
5 Relevant to these issues is the history of the 2013 Devil’s Garden Plateau Wild
6 Horse Territory Management Plan and Forest Plan Amendments. Prior to the 2013
7 Plan, the Forest Service had treated the Devil’s Garden Plateau Wild Horse Territory as
8 a single connected territory for several decades. Am. Wild Horse Pres. Campaign v.
9 Perdue, 873 F.3d 914, 920–21 (D.C. Cir. 2017). The treatment of the Devil’s Garden
10 Plateau Wild Horse Territory as a single piece of land was potentially due to an
11 “administrative error” where an additional approximately 23,000 acre “Middle
12 Section” was included as part of the Territory, connecting the two divided areas that
13 originally made up the Territory when it was first designated in 1975. Id. at 921–22.
14 The 2013 Plan sought to alter this by eliminating the roughly 23,000 acre Middle
15 Section from the Territory, effectively returning it to its original divided form.1 Id. at
16 922–23. Ultimately, the D.C. Circuit Court found that the decision to remove the
17 Middle Section was arbitrary and capricious as the Forest Service had failed to explain
18 the change and adequately consider whether Environmental Impact Statement was
19 necessary. Id. at 923. The Circuit Court directed the district court to “remand to the
20 Service for further consideration consistent with this decision.” Id. at 932. To date, no
21 further plan has been adopted.2 The parties disagree on the ongoing validity of the
22 2013 Plan in light of the D.C. Circuit’s decision.
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24 1 The 2013 Plan concerned far more than this change. As noted by the D.C. Circuit in American Wild
Horse Preservation Campaign, wild horse management generally was only “a factor of a factor of a
25 factor that the Service considered when developing the [2013 Plan].” Am. Wild Horse Pres. Campaign,
873 F.3d at 930.
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2 Plaintiff reports that in 2022, the Forest Service began the process of creating a new management
27 plan which resulted in a finalized EA in 2024. (See Mot. at 15.) A draft Decision Notice and FONSI have
allegedly been produced but have not been issued. (See id.) Thus, that plan has not yet been adopted
28 and is not relevant here.
1 Plaintiffs have established a likelihood of success on the merits of their NEPA
2 claim. While it is unclear exactly how far the D.C. Circuit’s decision extends in vacating
3 the 2013 Plan, it is clear that its effects extend well beyond that suggested by
4 Defendants. The D.C. Circuit’s determination that the Middle Section was improperly
5 excluded from the 2013 analysis cannot be considered in a vacuum and the
6 subsequent re-inclusion of the Middle Section necessarily has impacts on portions of
7 the rest of the environmental analysis. In its order, the D.C. Circuit very specifically
8 noted that “herd management levels” were affected by the inclusion and exclusion of
9 the Middle Section:
10 What the 1991 Forest Plan did do was formally document a
single, contiguous, 258,000 acre Wild Horse Territory that
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could only exist through inclusion of the Middle Section,
12 incorporate that status into the Plan through a notice-and-
comment process, and set a herd management level within
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that territory of “275–335 animals to manage,” J.A. 586. In
14 addition, the Forest Plan's explicit description of the size and
management levels for the Wild Horse Territory largely
15 repudiates the Service's claims that the plan was “of no
practical consequence for the management of the disputed
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area because the Forest Service never set appropriate
17 management levels for horses on the [portions of allotments]
within the disputed area.
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19 Am. Wild Horse Pres. Campaign, 873 F.3d at 925. Thus, given that the Forest Service’s
20 exclusion of the Middle Section was vacated, decisions at least partially predicated on
21 that conclusion — most importantly any AML established by the 2013 Plan — were also
22 vacated by the Court’s order.
23 Moreover, it does not appear that the Forest Service has yet complied with the
24 remand order directed by the D.C. Circuit and issued by the district court. In its order
25 the Circuit Court expressly “direct[ed] the district court to remand to the Service for
26 further consideration consistent with this decision.” Id. at 932. No subsequent NEPA
27 document was ever issued by the Forest Service. Defendants have noted the
28 existence of the “July 2018 Supplemental Information Report” but that document
1 focused on gathers scheduled to occur in 2018 and 2019. (See 2018 Supplemental
2 Report (ECF No. 10-3) at 18.) As such, it is not relevant or applicable to the current
3 gather because it was not intended to serve as an analysis of the sufficiency of the
4 proposed September gather. See Friends of Animals v. U.S. Bureau of Land Mgmt.,
5 No. 3:15-cv-0057-LRH-WGC, 2015 WL 555980, at *3–4 (D. Nev. Feb. 11, 2015). More
6 importantly, as Counsel conceded at oral argument, the 2018 Supplemental Report is
7 expressly not a NEPA document. (See 2018 Supplemental Report at 18 (“A
8 [Supplemental Information Report] is not a NEPA document and cannot be used to
9 fulfill the requirements for a supplemental EA.”).) As such, the 2018 Supplemental
10 Report does not satisfy D.C. Circuit’s remand order.
11 The evidence submitted by both parties shows that the Forest Service is clearly
12 relying on the 2013 Plan to assess and institute the planned September gather. (2025
13 Excess Wild Horse Determination (ECF No. 10-9) at 2 (“The 2013 TMP provides criteria
14 for making or adjusting excess wild horse determinations[.]” and “At this time, and
15 considering the 15-20% reproduction rate established by the 2013 TMP, wild horse
16 populations have exceeded the designated appropriate management level and
17 horses are permanently residing outside the Wild Horse Territory.”).) Defendants, in
18 relying the 2013 Plan, are acting based on a document that — at a bare minimum —
19 remains partially vacated for portions of the environmental analysis that are
20 intrinsically connected to the Forest Service’s planned gather. The Forest Service’s
21 continued reliance on the 2013 Plan without completing the assessment that was
22 ordered on remand almost certainly constitutes an arbitrary and capricious action. As
23 such, Plaintiffs have established a likelihood of success on this claim.
24 B. Wild Horse Act
25 Plaintiffs have not shown a likelihood of success on their Wild Horse Act claim.3
26 Even if the 2013 Plan is no longer valid, the current horse population assessed by the
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3 Alleged violations of the Wild Horse Act are also assessed under the APA’s arbitrary and capricious
28 standard. In Def. of Animals v. U.S. Dep’t of Interior, 751 F.3d 1054, 1061 (9th Cir. 2014).
1 Forest Service exceeds the AML limits set by the prior 1991 Forest Plan that Plaintiffs
2 argue is the remaining valid analysis. While Plaintiffs contest the accuracy of the
3 excess wild horse determination, Defendants have provided a valid description of how
4 they reached their determination. Most of Plaintiffs’ contentions regarding the
5 accuracy of the number stems from the fact that the 2024 aerial survey resulted in a
6 count of 651 to 998 horses and the subsequent gather resulted in a removal of 409
7 horses. (Mot. at 21–22; Opp’n at 12–13.) Based on this, Plaintiffs argue that applying a
8 15% growth rate would not be congruent with the ground count results of 500 to 600
9 horses. (Mot. at 22.) However, the Forest Service explains that the 2024 survey was
10 conducted in late Winter/early Spring 2024. (Opp’n at 12; Levy Decl. (ECF No. 10-1)
11 ¶ 13.) Thus, in the time between the 2024 aerial survey and the 2025 ground count,
12 there were two birthing cycles. (See Levy Decl. ¶ 13–14.) Moreover, while the Forest
13 Service agrees that aerial surveys are preferrable, it notes that the main issue with
14 ground counts is the risk of undercounting the wild horse population. (Opp’n at 13.)
15 Plaintiffs have thus not presented evidence that the Forest Service’s excess population
16 determination was arbitrary and capricious. 4
17 Plaintiffs also challenge the determination whether removal is necessary. But
18 based on the Forest Service’s count, the current wild horse population exceeds the
19 AML set by either the 2013 Plan and the 1991 Forest Plan. Defendants appear to have
20 provided a reasonable basis for determination that removal of this excess population
21 was necessary. To be sure, to the extent the Defendants are relying on invalid
22 assessments in making that necessity determination, that determination would
23 necessarily also be called into question. But based on the information presently
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4 The Court notes that it is also unconvinced that the 1991 Forest Plan is a viable alternative to the 2013
25 Plan. The 1991 Forest Plan states that it is intended to “guide[] the management of the Forest for the
next 10–15 years[.]” (1991 Forest Plan (ECF No. 10-4) at 1-1.) Without the briefing of the parties on this
26 issue, the Court makes no final determination here, but the Court has serious questions about whether
a plan issued over three decades ago can be considered a valid NEPA document when it was only
27 intended to cover a 10 to15 year period. See Friends of Animals, 2015 WL 555980, at *3–4. This issue
is also ultimately irrelevant for purposes of this Order given the Court finds below that Plaintiffs have
28 not met the irreparable injury requirement.
1 before the Court, the Court cannot find the Forest Service’s necessity determination
2 under the Wild Horse Act was arbitrary and capricious.
3 C. First Amendment
4 Plaintiffs have also not established a likelihood of success on the merits of the
5 First Amendment claim. Both parties agree that the First Amendment provides “a
6 qualified right of access for the press and public to observe government activities.”
7 Leigh v. Salazar, 677 F.3d 892, 898 (9th Cir. 2012). A court determines whether a right
8 of access attaches to a government activity by assessing “whether the place and
9 process have historically been open to the press and general public” and “whether
10 public access plays a significant positive role in the functioning of the particular
11 process in question.” Press-Enter., Co. v. Sup. Ct. of Cal. for Riverside Cnty., 478 U.S. 1,
12 8 (1986). This qualified right has been understood to extend to the viewing of wild
13 horse gather operations on public land, see Leigh v. United States Dep’t of
14 Interior, No. 2:22-cv-01200-MMD-BNW, 2024 WL 4279156, at *5 (D. Nev. Sept. 23,
15 2024) (collecting cases), and under certain circumstances to holding corrals on private
16 land, see id. at *7. Where a qualified right of access exists, the government may only
17 impose limitations where there is an “overriding interest based on findings that
18 closure is essential to preserve higher values and is narrowly tailored to serve that
19 interest.” Press-Enter., Co., 478 U.S. at 9.
20 Defendants have asserted that their restrictions are tailored to serve two
21 important overriding interests: (1) “the effective and efficient gather of the horses” and
22 (2) “the safety of all individuals including those involved in gather activities, members
23 of the viewing public, and the horses themselves.” (Opp’n at 14 (citing Leigh v.
24 Salazar, 954 F. Supp. 2d 1090, 1101 (D. Nev. 2013) [hereinafter Salazar II].) These are
25 interests that courts have upheld as constituting appropriate overriding interests
26 justifying the limitations placed on the availability of public viewing of the proposed
27 September gather. See Salazar II, 954 F. Supp. 2d at 1101. While Plaintiffs note that
28 they have on other occasions been able to attend gathers without the same degree of
1 restrictions, Defendants note that the Forest Service has been forced to limit that
2 access compared to prior gathers to ensure safety as a result of substantially reduced
3 staffing. (Opp’n at 14–15.) Defendants explain the many potential dangers to
4 observers, horses, and staff during the gather and argue that their ability to conduct
5 the gather in an efficient, effective, and safe manner is an overriding interest that
6 justifies limited access. At this point, the restrictions appear to be narrowly tailored, as
7 viewing opportunities exist subject to Forest Service’s ability to ensure safe and
8 efficacious gatherings. See Leigh v. Raby, No. 3:22-cv-00034-MMD-CLB, 2022 WL
9 267353, at *9–10 (D. Nev. Jan. 28, 2022) (finding that restrictions allowing some
10 viewing opportunity based on ensuring safe and efficacious gatherings were narrowly
11 tailored for purposes of preliminary injunctive relief but dismissing the First
12 Amendment claim without prejudice so the plaintiff could potentially re-challenge
13 narrow tailoring). As such, the Forest Service has at this stage met their burden at this
14 stage to show that the limitations placed on access are narrowly tailored to serve
15 important overriding interests.
16 II. Irreparable Harm
17 While the Court above finds that Plaintiffs have established a likelihood of
18 success on their NEPA claim, they have not satisfied the irreparable harm requirement
19 for preliminary injunctive relief. Importantly, the horses from the proposed
20 September gather will be held by the Forest Service and are subject to release only if
21 the Forest Service determines after conducting the October aerial survey that the wild
22 horse population in the Territory has fallen below the minimum AML threshold. (Levy
23 Decl. ¶ 19.) This obviates any irreparable harm that might be suffered based on the
24 Forest Service conducting the planned September gather. Given the lack of
25 irreparable injury for the claim where Plaintiffs have a likelihood of success, the Court
26 will deny Plaintiffs’ Motion for Temporary Restraining Order.
27 The Court notes that while there is no irreparable harm in the Forest Service
28 conducting the gather, it does not mean that there is no irreparable injury for the
1 ultimate removal of gathered horses. It is difficult to assess at this time the scope of
2 the harm that would result from the removal of the horses given the factual dispute
3 between the parties regarding the current number of horses. If Plaintiffs are correct
4 that as a result of the removal of horses “the population will dip significantly below
5 AML, and the horses will essentially be eradicated” (Mot. at 22–23), that would almost
6 certainly constitute irreparable injury. See Friends of Animals 2015 WL 555980, at *4.
7 If Defendants are correct and the removal of horses is required to return to herd to
8 AML, that may not constitute irreparable harm. See In Def. of Animals v. U.S. Dept. of
9 Interior, 737 F. Supp. 2d 1125, 1138 (E.D. Cal. 2010). In light of the representations
10 that the gathered horses will not be removed and can be released after the October
11 aerial survey, however, these concerns can be addressed on briefing for Plaintiffs’
12 Motion for Preliminary Injunction and do not establish irreparable harm for purposes
13 of Plaintiffs’ Motion for Temporary Restraining Order.
14 III. Balance of Equities and Public Interest
15 Where a party seeks preliminary injunctive relief against the Government, the
16 balance of equities and public interest factors merge. Nken v. Holder, 556 U.S. 418,
17 435–36 (2009). The balance of equities here tips in Defendants favor. As noted,
18 Plaintiffs have not established that they will suffer irreparable harm if the gather is
19 conducted. Defendants and the public have a strong interest in maintaining control of
20 the wild horse population. While there is a sharp dispute between the parties as to
21 the actual herd size in the Devil’s Garden Plateau Wild Horse Territory, this dispute will
22 likely be resolved by conducting the October aerial survey. At oral argument,
23 Defendants represented that if the gather does not occur now, it may not happen and
24 that, due to budget constraints, they will be unlikely to conduct a subsequent gather
25 for the remainder of the year. Nevertheless, it is important to note that as discussed
26 above, Defendants may not ultimately be able to permanently remove horses from the
27 Territory if they have, in fact, failed to comply with their obligations under NEPA.
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1 | However, given the facts presently before the Court, the balance of equities tips in
2 | Defendants favor.
3 CONCLUSION
4 In light of the above, Plaintiffs have not met their burden to show that issuance
5 | of a Temporary Restraining Order is warranted. See Winter, 555 U.S. at 20.
6 | Accordingly, Plaintiff's Motion for Temporary Restraining Order (ECF No. 4) is
7 | DENIED.
8 Defendants’ Opposition to Plaintiffs’ pending Motion for Preliminary Injunction
9 | shall be filed on or before September 11, 2025. Plaintiffs Reply shall be filed on or
10 | before September 18, 2025. Oral Argument for the Motion for Preliminary Injunction
11 | will be held on September 25, 2025 at 1:30 p.m. via Zoom before District Judge
12 | Daniel J. Calabretta. Additionally, the parties are ORDERED to meet and confer prior
13 | to September 11, 2025 in an attempt to narrow the disputed issues, including the
14 | parties’ best estimate of the number of horses currently in the Territory.
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16 IT 1S SO ORDERED.
17 | Dated: _August 30, 2025 “Daal CoO □□□□
Hon. Daniel □□ |. Cod
18 UNITED STATES DISTRICT JUDGE
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