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Cowan Law OfficeP.O. Box 17952Reno, NV 89511 G.M. Cowan 2013

ll Rights Reservedwww.cowanlaw.com

GORDON M. COWAN, Esq.SBN# 1781Law Office of Gordon M. CowanP.O. Box 17952Reno, Nevada 89521Telephone (775) 786-6111

Attorney for Plaintiffs BONNIEKOHLERITER & LAURA LEIGH

IN THE UNITED STATES DISTRICT COURTDISTRICT OF NEVADA

BONNIE KOHLERITER, LAURA LEIGH,

Plaintiffs,

vs.

SALLY JEWELL, in her official capacity asSecretary of the U.S. DEPARTMENT OFTHE INTERIOR, DANIEL ASHE, in hisofficial capacity as Director of the U.S. FISH& WILDLIFE SERVICE; JOHN KASBOHM, inhis official capacity as Director of SHELDONNATIONAL WILDLIFE SERVICE,

Defendants. /

Case No. 3:13-cv-0495-MMD-VPC

EMERGENCY MOTION (SECOND) FOR TEMPORARY RESTRAINING ORDER

Plaintiffs BONNIE KOHLERITER and LAURA LEIGH seek an emergency

temporary restraining order precluding the Defendants from the harmful conduct

described herein below.

This Motion is made in accordance with Fed.R.Civ.P. 65. The Motion is based

on the pleadings and papers on file herein, the accompanying Memorandum of Points

and Authorities and supporting documents and on such other matters as may be

presented to the court.

Respectfully, November 1, 2013

LAW OFFICE OF GORDON M. COWAN

s/ G.M. CowanGordon M. Cowan Esq. (SBN 1781)

Attorney for Plaintiffs

Case 3:13-cv-00495-MMD-VPC Document 37 Filed 11/01/13 Page 1 of 25

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The court remains aware, from prior proceedings and filed documents, that1

Sheldon historically shipped to J&S. J&S in turn, could not account for the horsesshipped them previously and there were admissions by Sheldon that there wereproblems with J&S; and that J&S had confirmed they did not know they could not shiphorses to slaughter; and the defendants have yet to dispute that Sheldon horses givento J&S previously likely went to slaughter.


ll Rights Reservedwww.cowanlaw.com Page 2

MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OFMOTION FOR TEMPORARY RESTRAINING ORDER

Plaintiffs BONNIE KOHLERITER and LAURA LEIGH submit the following

Memorandum of Points & Authorities in support of their motion for temporary restraining

order:

THE PLAINTIFFS SEEK TO HALT THE TRANSFER OR SHIPMENT OF THEAPPROXIMATELY 108 HORSES TO J&S, REMAINING AT SHELDON

The Specific Relief Sought

Plaintiffs seek the following specific relief:

1. To stop all shipment of the final 108 wild horses (approximately)

remaining at the Sheldon National Wildlife Refuge holding pens that

Sheldon intends to ship to J&S;

2. If the horses in holding pens at Sheldon require shipping rather than

returning to the Sheldon range, to require the defendants to ship those

remaining horses to another adopting agent or adopting contractor

already qualified as such by Sheldon not affiliated with J&S; or

alternatively, require the defendants to return the remaining horses at

Sheldon holding facility back to the range at Sheldon from where they

were rounded up.

Factual Reasons for Emergency TRO Relief

The wild horses the defendants most recently gave to J&S the past two months:

1. Have been disposed of contrary to the agencys CCP requirements of

finding reasonable homes for the horses (i.e., adoptions);1

2. Have been disposed of in a manner contrary to how the defendants


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Sheldon representative testified in court this past month that, following their2

investigation into J&S (prompted by revelations given them by plaintiff Ms. Kohleriter),

that the flaw in its adopting contract had been rectified by a modified adopting agentor adopting contractor contract now requiring those like J&S to ensure the horsesgiven them from Sheldon do not end up as candidates for slaughter. As late as yesterday afternoon, it is revealed that the same activity from J&Scontinues, that the corrections put in place by Sheldon caused no change incontractor conduct, that J&S continues to accept the governments money but avoidsproviding reasonable homes for the Sheldon horses and likely causes the Sheldonhorses to enter slaughter pens. Plaintiffs are informed and believe that the adjustmentin contracts have done nothing to protect horses from slaughter.



assured this court in the previous hearing, that precautions had been

taken to prevent horses from heading to slaughter pens;2

3. Many remain unaccounted for;

4. Were offered by J&S to others in bulk, free of charge and without

restriction to their disposition;

5. Were (some of them) shipped to known kill lots, meaning the horses

were headed to slaughter;

6. Are (some of them) slated for rodeo stock by J&S before discarding

them thereafter.

The actual disposition or, more accurately, the demiseof the Sheldon horses

given to J&S by Sheldon recently, is contrary to the agencys own CCP (flawed as it is

currently), and the agencys prior EA, and the J&S contract which Sheldon refuses to

monitor for compliance.

There are only 108 (approximately) Sheldon horses remaining in Sheldons

possession in Sheldons holding facility. Sheldon intends to give these horses to J&S.

Based on recently discovered facts, plaintiffs respectfully ask that the shipment to J&S

be immediately stopped and that Sheldon be required to use another contractor where

J&S continues to dispose of horses without providing reasonable homes for the horses.


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BACKGROUND

The Sheldon horses hold a special place in American patriotic history. Sheldon

horses assisted American troops in battle abroad from the Boar Wars, through World

War I and part of World War II. Sheldon horses stood alongside our American fighting

infantry and helped America defeat a concerning enemy.

Disappointedly, Sheldon intends to eradicate the descendants of these horses

by removing what remains of them from the Sheldon range. More disturbingly however,

is that Sheldon gives the Sheldon horses to a business which, historically, is not able to

account for many of the Sheldon horses given them previously even though they are

considered adopting agents or adopting contractors, and with this history, Sheldon

gave these horses to the same contractor once again. And, once again, the Plaintiffs

are informed and believe the Sheldon horses given the same contractor are headed to

slaughter once again, contrary to indications Sheldon recently advised this court.

Plaintiffs remain rightfully concerned that many of these iconic symbols of

patriotism, the Sheldon horses, are merely being given to kill buyers or ending up in

slaughter houses elsewhere, causing the tragic and undeserving ending chapter to

horses who should be honored as symbols of American patriotism and freedom.

The Conduct Being Challenged through the APA

Plaintiffs challenge the decision of the defendants to send its final, approximately

108 horses removed from the Sheldon National Wildlife Refuge, to the adoption agent

or adoption contractor known as J&S Associates and/or Mr. Palmer located in

Mississippi (collectively, J&S). The choice to send Sheldon horses to J&S violates

Sheldons own Comprehensive Conservation Plan (CCP), which the agency adopts

as its final decision and governing document in place currently, for the removal and

placement of wild horses taken from Sheldon, because the Sheldon horses, once

again, are not protected from slaughter.

The choice in J&S also violates the Environmental Assessment (EA) in place


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The court is already aware that Sheldon's own investigation showed Ms.3

Kohleriter's assertions were true and in addition many horses remained completelyunaccounted for by J&S; and that it took until May of 2013 for Sheldons investigationreport to be finalized. Sheldon then spent less than 60 days, in a finite pool ofgovernment contractors, to find a replacement for J&S, following which, Sheldonrenewed its contract with J&S. Sheldon now incurs the same demise with the horsescurrently as what occurred previously with J&S, which caused Sheldon to look for a newcontractor in the first instance.



being of horses and burros. Potential adopters must sign an agreementwith the agent that states standard stipulations for care and preventing thehorse/burro from going to slaughter. Agents must meet all state regulations for transport and exchange oflivestock. The agent must also be willing to take the animal back ifsignificant problems develop with the adoptee for up to one year from

adoption. Final EA, Appendix, C, Standard OperatingProcedures, p.154. Emphasis added

Sheldon retained J&S as a principal adoption agent or adoption contractor.

For three years 2010, 2011 and 2012, under this EA, J&S took hundreds of Sheldon

horses afar from Nevada, to Mississippi and perhaps elsewhere.

But, J&S could not account for many of the Sheldon horses. When Ms.

Kohleriter recently voiced concerns based on facts she accumulated, Sheldon

independently investigated and verified that some of Ms. Kohleriters concerns had

merit and that some of the Sheldon horses given J&S were not accounted for and some

had admittedly gone to kill auctions. Now, nearly the same unacceptable activity

repeats.

If Sheldon is allowed to give their final load of 108 horses to J&S, the court can

expect the same demise of these final 108 horses as has occurred thus far with the

horses given J&S previously, including those given J&S most recently.

The court is aware that Sheldon conducted no follow up on J&S activities until

after Plaintiff Kohleriter sent documentation to Sheldon in fall of 2012 showing horses

were leaving J&S with no adoption application or paperwork, and showing that babies

were starved at J&S , and that J&S simply told people to "come and take the horses." 3


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In comparison, today, J&S is still telling others to take as many horses as they

wish, but without restriction. Once again, Sheldon continues to avoid following up on the

horses despite the rocky background involving J&S and despite its assurance to this

court that Sheldon rectified its prior conduct by adjusting its contract with J&S.

The Current Final Decision, the CCP

For horses being removed from Sheldon in 2013, Sheldon operates under a

Comprehensive Conservation Plan (CCP) prepared in 2012, which is the agencys

final decision. The CCP is a large document but can be found at the following weblink:

http://www.fws.gov/pacific/planning/main/docs/NV/Sheldon/SheldonNWRFinalCCP&RO

D.pdf, which Plaintiff incorporates herein. Plaintiff asks the court to consider this outside

document for purposes of defending a challenge to the complaint as well as for other

purposes including support for this motion.

The CCP requires the following:

Requirements for Adoption Agents and AdopteesAll potential adoption agents must have a favorable background checkconducted and contract/cooperative agreement established beforereceiving any horses or burros.

Background checks will include the following:1. A site visit will be completed by Refuge staff to assure that facilities areadequate to prevent escape or injury to the animals or visitors duringholding, viewing, feeding, loading and unloading.2. A determination will be made by the Refuge Manager as to whether ornot the agent has the necessary skills and knowledge of horses andburros to safely handle, feed, and load and unload them.3. A list of adopters will be required and certification and follow up will beconducted by Refuge Staff to ensure proper placement.4. Refuge staff will also conduct phone interviews with at least twocharacter witnesses and receive a recommendation from a localveterinarian regarding the Agents ability to accomplish the adoptionprocess.

Adoption agents are required to make a reasonable effort to preventhorses and burros from going to slaughter and to screen potentialadoptees for good homes.Agents must meet all applicable Stateand Federal regulations for transport and exchange of livestock andequines.

CCP, Appendix H, Standard Operating Proceduresp.H-7. Emphasis added


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The APA Claim

In failing to take into account what occurred with respect to J&S before finalizing

the CCP and Record of Decision and despite the same, the agency continues to march

forward, giving horses to an adopting agent or adopting contractor who causes

Sheldon horses to enter the slaughter pipeline and who repeatedly and consistently

fails to find or provide reasonable homes for the horses given them by Sheldon. The

disappointment is that Sheldon is aware of the activity, does nothing to rectify it other

than to say it adjusted its contract. Now, predictably, the process repeats.

For these reasons, the plaintiffs seek emergency TRO relief to save the final 108

horses remaining at Sheldon holding pens. Plaintiffs are aware of at least one adopting

contractor approved by Sheldon, who is prepared to accept these final 108 horses.

Sheldons forward march in the face of such facts is agency action that is

arbitrary and capricious or not in accordance with law, or is implemented without

observance of procedure required by law as is contemplated in the Administrative

Procedures Act, 5 U.S.C. 706(2)(A) and/or (D). And such failure to act causes Plaintiffs

irreparable harm.

The defendants should have considered but failed to consider before finalizing

the CCP, the importance underlying these very horses for patriotic Americans and for

all Americans; that their importance to plaintiffs and to others is important both

aesthetically and culturally; that Sheldon horses maintain an iconic, patriotic symbol for

America of horses entering combat battle alongside our troops engaged in foreign wars

and that the removal of their descendants from public lands where they roam free and

thrive today, is repugnant to that very core of the American spirit and is antithetical to

the aesthetic and cultural meaning of these horses to plaintiffs and to others; that in not

taking into account the foregoing before finalizing the CCP and Record of Decision, the

defendants proceed "not in accordance with law" or, their action is arbitrary and


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28 See Second Amended Complaint, 15.4



capricious, or implemented without observance of procedure required by law.4


the CCP, that, because of the importance of the Sheldon horses to American freedom

and to American patriotism and as living symbols of American patriotic notions, and

also because the agency seeks to prevent horses from entering the slaughter pipeline,

the defendants should have considered but failed to consider before finalizing the CCP,

adopting a prohibition against further employing adopting agents or adopting

contractors who could not account for horses given them previously.

The agency should have considered but failed to consider before finalizing the

CCP, the safety of horses after they leave the refuge in accordance with the 2008

Environmental Assessment (EA) and Record of Decision (ROD) that created the interim

plan used from 2009-2012 which states: "A list of adopters and certification and follow

up will be conducted by Refuge Staff to ensure proper placement."


the CCP, that Appendix C of the Final active EA for years 2010-2012, specifically

states,

"Adoption agents are required to prevent horses and burros from going to

slaughter and to screen potential adoptees for good homes. This is

specified in legally binding contract/cooperative agreements between the

adoption agent and the U.S. Fish & Wildlife Service. Agents will screen

potential adoptees for appropriate facilities, adequate expertise to handle

the horses and conscientious attitude towards the care and well being of

horses and burros. Potential adopters must sign an agreement with the

agent that states standard stipulations for care and preventing the

horse/burro from going to slaughter. Agents must meet all state

regulations for transport and exchange of livestock. The agent must also


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See declaration of plaintiff Laura Leigh, Exhibit 1. Plaintiff also incorporates5

Ms. Leighs testimony in court at hearing October 10, 2013.Cowan Law OfficeP.O. Box 17952Reno, NV 89511 G.M. Cowan 2013


be willing to take the animal back if significant problems develop with the

adoptee for up to one year from adoption."

During the years 2010-2012 the adopting agent J&S did not meet the

requirements Sheldon demanded. Sheldon moved slowly to evaluate this contractor

and only did so at Ms. Kohleriters prodding.

Sheldon Horses Hold an Incredible Place in History

The Sheldon horses are iconic symbols of American freedom and of patriotism.

To Americans, whether conservative, liberal or somewhere in between, to eradicate

Sheldon horses from their range is disturbing. To not ensure and confirm that more of

the Sheldon horses do not end up missing or unaccounted for, or in the slaughter

pipeline or slaughter houses, or slaughter pens, or to ensure these Sheldon horses

coming off the range now, do not come into the same hands of those who have lost

Sheldon horses previously, or who could not account for them all, is just plain wrong,

and should be immediately stopped.

Plaintiffs maintain a strong aesthetic bond and concrete interest to the Sheldon

horses to view them as a photojournalist when Sheldon horses are managed, rounded

up, captured, placed in holding, and how they are maintained while so captured.

Plaintiffs also maintain a strong aesthetic bond and concrete interest to the Sheldon

horses from longstanding observations and longtime enjoyment of the Sheldon horses.5

Standard of Review re TRO and Preliminary Injunction:

The standard of review for issuance of a TRO is no different from that governing

the preliminary injunctive relief except that the denial of preliminary injunctive relief is

appealable by right.


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years covering wild horse roundups, in varying weather, extreme terrain and range

conditions and she has traveled and observed Sheldon horses several times in the

past. Ms. Leighs history with the Sheldon range horses is significant and is outlined in

the Amended Complaint.

Ms. Kohleriters standing is also without question and permeates the exhibits

already before the court. She remains committed to overseeing on her own, the

removed Sheldon horses, to ensure their proper care and disposition. Her

demonstrated commitment permeates the exhibits attached.

Both plaintiffs hold a deep and abiding aesthetic and cultural interest in the

Sheldon horses. Their demise in the hands of J&S is frightening and disconcerting to

the plaintiffs where repeatedly, the Sheldon horses are subjected to the slaughter

pipeline.

Likelihood of Success on the Merits

APA Claim

Plaintiffs brings their proposed amended complaint under two principal theories, one

being the Administrative Procedure Act (APA), 5 U.S.C. 701 et seq. Section 704

provides for judicial review of [a]gency action made reviewable by statute and final

agency action for which there is no other adequate remedy in a court. Except for First

Amendment concerns discussed below, where there is no statute otherwise, providing

for judicial review of the defendants actions in this case, the actions challenged is to be

final. Ukiah Valley Med. Ctr. v. Fed. Trade Commn,911 F.2d 261, 264 n.1 (9th Cir.

1990). Judicial review of Plaintiffss claims is governed in the usual course by 5 U.S.C.

706.

The plaintiffs maintain standing under 5 U.S.C. 702 of the Administrative

Procedures Act to seek judicial review of the BLMs action (or failure to act) where they

suffered and would continue to suffer actual injury or injury in fact that is within the zone

of interest protected by the relevant federal statutes indicated herein which Defendants


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population growth, high-density urbanization, industrialexpansion, resource exploitation, and new and expandingtechnological advances and recognizing further the criticalimportance of restoring and maintaining environmentalquality to the overall welfare and development of man,declares that it is the continuing policy of the Federal

Government, in cooperation with State and localgovernments, and other concerned public and privateorganizations, to use all practicable means and measures,including financial and technical assistance, in a mannercalculated to foster and promote the general welfare, tocreate and maintain conditions under which man and naturecan exist in productive harmony, and fulfill the social,economic, and other requirements of present and futuregenerations of Americans.

(b)In order to carry out the policy set forth in this chapter, itis the continuing responsibility of the Federal Government touse all practicable means, consistent with other essential

considerations of national policy, to improve and coordinateFederal plans, functions, programs, and resources to theend that the Nation may--

(1)fulfill the responsibilities of each generation as trustee ofthe environment for succeeding generations;(2)assure for all Americans safe, healthful, productive, andesthetically and culturally pleasing surroundings;(3)attain the widest range of beneficial uses of theenvironment without degradation, risk to health or safety, orother undesirable and unintended consequences;(4)preserve important historic, cultural, and naturalaspects of our national heritage, and maintain, wherever

possible, an environment which supports diversity andvariety of individual choice;(5)achieve a balance between population and resource usewhich will permit high standards of living and a wide sharingof life's amenities; and(6)enhance the quality of renewable resources andapproach the maximum attainable recycling of depletable resources.

(c)The Congress recognizes that each person should enjoya healthful environment and that each person has aresponsibility to contribute to the preservation andenhancement of the environment.

Emphasis added

Plaintiffs contend that Sheldons comprehensive conservation plan or CCP is

in essence the equivalent of an environmental assessment or EA, required in lieu of


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The specific example here is that the EA in place at Sheldon was replaced by6

the CCP in Spring 2013.Cowan Law OfficeP.O. Box 17952Reno, NV 89511 G.M. Cowan 2013


an environmental impact statement (EIS) under NEPA. Plaintiffs contend in this6

instance, the CCP is inadequate, incomplete or flawed, for these reasons:

1. Sheldons CCP fails completely, to consider the cultural significance and

aesthetic value in the wild horses found at Sheldon. Sheldon instead,

denigrates these horses, labeling them as feral, and resultantly,

disregards their cultural and aesthetic significance, completely. Yet on

their website, Sheldon doesmention the U.S. Calvary history of the

Sheldon horses, although the horses significance is never mentioned in

Sheldons governing management plan, the CCP. The cultural

significance of the Sheldon horses is described herein. They are

descendants of Americas war horses who stood alongside American

military troops in foreign battles principally in World War I. Their aesthetic

significance is described herein and in the attached declaration of Ms.

Leigh;

2. The CCP claims to protect the horses from abuse and slaughter but fails

to employ or identify adequate measures to achieve that goal. An example

is that the horses are not marked by brand (as they are by BLM) to allow

the horses to be easily tracked and identified, no matter where they may

end up. Also, Sheldon fails to specify language to be utilized by their

adoption agents (adoption contractors) in the placement of horses, for the

specific care and disposition of horses. Also, Sheldon fails to require their

adoption agents to create such language when they place horses with

adopters. In short, Sheldon makes a claim on paper that they protect the

horses, but Sheldon fails to provide the basic tools to do so, and then

Sheldon becomes upset (or surprised) that the conduct continues.


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3. Resultantly, the inadequate CCP causes Sheldon to fail in its continuing

responsibility to use all practicable means, consistent with other essential

considerations of national policy, to,

(2)assure for all Americans safe, healthful, productive, andesthetically and culturally pleasing surroundings;***

(4)preserve important historic, cultural, and naturalaspects of our national heritage, and maintain, whereverpossible, an environment which supports diversity andvariety of individual choice

42 U.S.C. 4331(b)(2),(4). Emphasis added

4. Consequently the inadequate CCP also causes Sheldon to run afoul of

42 U.S.C. 4332 which,

[a]uthorizes and directs that, to the fullest extent possible:(1) the policies, regulations, and public laws of the UnitedStates shall be interpreted and administered in accordancewith the policies set forth in this chapter, ....

Plaintiffs have all along contended they have a concrete interest in viewing

Sheldon horses in their habitat at Sheldon, a habitat that existed for Sheldon horses

long before Sheldon became a national wildlife preserve. The plaintiffs maintain interest

in viewing and knowing how these horses are managed, how the horses are removed,

their health and condition, how they are captured, how they are held (in facilities) and

what their ultimate disposition is when removed. The plaintiffs have made clear that the

aesthetic values of the area are lessened when horses are removed, and are lessened

even more so when the removed horses are not protected from abuse or slaughter

following their removal.

The difficulty with the CCP is that it never discusses the cultural or aesthetic

significance of the Sheldon horses when determining that the horses must be removed

from Sheldon. Plaintiffs contend this is a fatal flaw in the CCP which runs afoul to NEPA

policy. 42 U.S.C. 4331(b)(2),(4); 42 U.S.C. 4332.

Plaintiffs who bring suit under the APA for a NEPA violation must show that their

injury falls within the zone of interests that NEPA was designed to protect. Douglas


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County v. Babbitt,48 F.3d 1495, 1499 (9th Cir.1995). The plaintiffs interest in

preserving the culturally and historically significant animals (the Sheldon horses) that

have resided within Sheldons natural environment longer than has the geographical

area been designated a wildlife refuge, falls squarely within the zone of interests

protected by NEPA. See, 42 U.S.C. 4331(b)(4) (noting congressional purpose to

preserve important historic, cultural, and natural aspects of our national heritage).

The Supreme Court held that environmental plaintiffs adequately allege injury in

fact when they aver that they use the affected area and are persons for whom the

aesthetic and recreational values of the area will be lessened by the challenged

activity. Friends of the Earth, Inc. v. Laidlaw Environmental Services, 528 U.S. 167,

183, 120 S.Ct. 693, 705 (2000)(quoting Sierra Club v. Morton,405 U.S. 727, 735, 92

S.Ct. 1361, 31 L.Ed.2d 636 (1972)); see also, Lujan v. Defenders of Wildlife,504 U.S.

555, 56263, 112 S.Ct. 2130 (1992)(Of course, the desire to use or observe an animal

species, even for purely esthetic purposes, is undeniably a cognizable interest for

purposes of standing.).

Describing that an aestheticinterest is sufficient to justify standing to bring suit

under a NEPA violation, Cantrell v. City of Long Beach, 241 F.3d 674 (9th Cir. 2001)

analyzed the aesthetic interests in bird watchers relative to buildings on U.S. Navy

property that were slated for removal. The court provided the following relevant

analysis, concluding that birdwatchers satisfied requirements for bringing a NEPA claim

under the APA:

[b]irdwatchers assert that they have a concrete interest inviewing the birds and natural environment at the NavalStation. The Supreme Court has held that environmentalplaintiffs adequately allege injury in fact when they aver thatthey use the affected area and are persons for whom theaesthetic and recreational values of the area will belessened by the challenged activity.

***

An environmental plaintiff need not live nearby to establish aconcrete injury; [r]epeated recreational use itself,accompanied by a credible allegation of desired future use,


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can be sufficient, even if relatively infrequent, todemonstrate that environmental degradation of the area isinjurious to that person. Ecological Rights Foundation(ERF) v. Pacific Lumber Co.,230 F.3d 1141, 1149 (9th Cir.2000).

Id.at 680

The Cantrell Court went on to conclude the following:

The birdwatchers have demonstrated a sufficiently concreteinterest to establish an injury in fact under the test set forthin Laidlaw.For example, the complaint alleges that Plaintiff

Anne Cantrell, a resident of Long Beach, has on severaloccasions, both before and after the closure of the NavalStation, visited the areas in and around the station toobserve the habitats of the least terns, the brown pelicans,and the black crown night herons, and that the removal ofthe bird habitats would directly affect her interest in andappreciation of [the bird habitats] and ability to enjoy such.

The complaint alleges that each of the other plaintiffssimilarly conducted regular visits to observe the bird habitatsat the Naval Station, continued to do so from areasadjacent to and outside the station after it was closed tothe public, and had specific plans to make similar visits inthe future. In declarations in opposition to the motion todismiss, plaintiffs Cantrell and Larkey stated that they droveand walked around the perimeter of the station on severaloccasions to view the birds and nesting areas, and hadspecific plans to visit the areas around the station in thefuture. The complaint and declarations thus assert that theremoval of the trees and the shallow water habitat at theNaval Station would directly and concretely affect the

birdwatchers' recreational and aesthetic interests.

The birdwatchers' averments that they had visited theaffected area in the past and that the defendant's challengedactivity would impede their ability to appreciate and use thespecified area are sufficient to establish that they havesuffered an injury to a concrete and particularized interest.See Laidlaw, 528 U.S. at 183, 120 S.Ct. at 705. However,the Navy raises an additional objection. Citing the SupremeCourt's statement in Defenders of Wildlifethat the assertedinjury must be an invasion of a legally protected interest,504 U.S. at 560, 112 S.Ct. 2130, the Navy argues that thebirdwatchers cannot establish standing because they haveno legal right to enter the closed station or to stand adjacentto the station and gaze over the property line at the birdsand their habitat. We need not decide whether thebirdwatchers have a legal right of access to the NavalStation because their desire to *681 view the birds at the4

Naval Station from publicly accessible locations outside thestation is an interest sufficient to confer standing.

Id.at 680-81


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no mention whatsoever of the cultural and historical significance of the Sheldon horses,

before the horses are declared mere feral animals which must be removed, and which

fails to provide the tools for their proper removal and disposition thereafter, the CCP is

clearly inadequate, incomplete or flawed. The inadequacies in the CCP continues to

cause the injuries the plaintiffs incur immediately with the continued removal and also

the lack of protection of such culturally significant animals when so removed from

Sheldon.

Also, Sheldon fails to provide the basic tools to protect the Sheldon horses. A

governing document such as an EA or CCP should be based on the best available

science or information. The Department of Interior has the most successful wild horse

adoption program in the Nation with the Bureau of Land Management (BLM). The

examples of BLMs good practices include the following:

1. Horses are branded with a freeze mark that identifies the range on which

they were captured, when captured and identifies them as being a BLM

wild horse. This helps the BLM and horse owners and others to easily

identify and track the origin of these horses;

2. The BLM requires an adoption application and the signing of a contract by

adopters that clearly outlines care and disposition of the BLM horses. This

contract is so specific that it even outlines the type fencing that is

acceptable. Also, the BLM can repossess the horses should an adopter

violate the terms of the contract.

In no way, shape or form, does Sheldon follow this good model, a model

employed by its own parent agency.

Irreparable Harm

Plaintiffs' actual injury, injury in fact and harm includes but is not limited to harm

to their personal aesthetic interests. Familiar with horses, the plaintiffs do not have a

reasonable or valid explanation internally, for the dichotomy between having personally


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viewed in one aesthetic sense, the freedom these wild horses in this region display

when roaming free and peacefully in their native habitat, with the aftermath they would

observe where Sheldon horses are repeatedly subjected to undeserved inhumane

treatment by the very agency left in charge of their safe keeping. That plaintiffs

personal, internal lack of validation or a reasonable explanation for such an inhumane

conclusion, results in a gnawing, depressing, confusing and sobering look into the dark

side of humanity that disturbs the senses and destroys all notions of aesthetic

appreciation the Plaintiffs otherwise would enjoy when comparing in their minds eye,

observations of Sheldon horses roaming free in peaceful, dynamic social order.

Plaintiffs suffer harm to their personal well being where they are physically sickened in

having considered that such iconic, aesthetic symbols of American freedom, the

Sheldon horses, would end their lives in such a cold and inhumane process when

finalizing their lives in a slaughter house. Plaintiffs are informed and believe that these

personal harms and other harms, establish the requisite concrete and particularized

injury to their personal interests for this claim.

There remains a real and immediate threat that the injuries to Plaintiffs personal

interests as herein described would repeat and reoccur with the remaining 108 horses

at Sheldon currently that are slated for shipment to J&S, where these remaining horses

they would likely be required to endure a repeat process of what has occurred to their

brethren when shipped to J&S previously, and even most recently.

The Defendants' conduct in refusing to take corrective action and in not

redirecting these final 108 horses to another approved contractor disturbs the senses of

reasonable people, plaintiffs included. There is no measure of damages and no action

at law available to plaintiffs other than through this action, which can account for the

personal, irreparable loss to plaintiffs as heretofore mentioned. Plaintiffs have no other

remedy available to them other than in seeking a remedy to stop the harmful conduct,

with this suit. Without the help of this court, plaintiffs find themselves without remedy,

without options and without justice.


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The Defendants' refusal to enforce its own requirements and mandates, meant

to prevent these important horses from becoming unaccounted for, or in preventing

these horses from entering slaughter pipelines or from being lost forever, is the direct

and proximate cause of the Plaintiffs harm as described herein.

The Public Benefit

This analysis requires consideration of whether there exists some critical public

interest that would be injured by the grant of preliminary relief. Cal. Pharmacists Assn

v. Maxwell-Jolly,596 F.3d 1098, 1114-15 (9th Cir.2010) (internal quotations omitted).

In this case, finding reasonable homes for the final 108 Sheldon horses through

a truly ardent adopting contractor is tremendously beneficial to the public where these

particular horses remain aesthetic and symbolic of freedom and of patriotism, given

their war department heritage.

Balancing Hardships

Plaintiffs are not able to determine what harm comes to the government

defendants if the Sheldon horses are placed as the plaintiffs suggested and offered.

Also, where the horses must remain in pens after being captured until Coggins tests

are completed, there remains no immediate harm in not shipping horses currently until

the court determines this motion.

For reasons already stated, the benefits to the plaintiffs are extraordinary if

Sheldon horses are placed elsewhere.

Exhibits

Plaintiffs are filing exhibits separately.

Conclusion

For the foregoing reasons, the plaintiffs respectfully ask that a temporary

restraining order be imposed for the following relief:

1. To stop all shipment of the final 108 wild horses (approximately)


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remaining at the Sheldon National Wildlife Refuge holding pens that

Sheldon intends to ship to J&S;

2. If the horses in holding pens at Sheldon require shipping rather than

returning to the Sheldon range, to require the defendants to ship those

remaining horses to another adopting agent or adopting contractor

already qualified as such by Sheldon and not affiliated with J&S; or

alternatively, require the defendants to return the remaining horses at

Sheldon holding facility back to the range at Sheldon from where they

were rounded up; and

3. For additional relief as may be required to effect the requested relief.


LAW OFFICE OF GORDON COWAN

s/ G.M. CowanGordon M. Cowan, Esq., Attorney for Plaintiffs

COUNSEL CERTIFICATION ON NOTICETO DEFENDANTS OF EMERGENCY MOTION

In accordance with Fed.R.Civ.P. 65, counsel for Plaintiff certifies that before

12:00 p.m. PDT, he called and discussed for more than twenty minutes, the filing of

this motion today (November 1, 2013) with Mr. Travis Annatoyn who is lead trial counsel

for the defendants herein, and confirming this emergency TRO motion would be sought

today.

Counsel also offered to postpone filing this motion if Sheldon agreed to postpone

shipping the remaining 108 (approximately) horses from Sheldon until sometime next

week.


LAW OFFICE OF GORDON COWAN

s/ G.M. CowanGordon M. Cowan, Esq., Attorney for Plaintiffs


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Exhibits

Exhibit 1: Declaration Laura LeighExhibit 2: Declaration of BillingsleyExhibit 3: Declaration of SchlipfExhibit 4: Photo log

Exhibit 5: PDF of Facebook conversation by J&S agent.

CERTIFICATE OF SERVICE

Pursuant to Fed. R. Civ. P. 5(b); LR 5-1

I certify that on the date indicated below, I filed the foregoing document(s) withthe Clerk of the Court using the CM/ECF system, which would provide notification and acopy of same to counsel of record.

Dated: November 1, 2013

s/ G.M. Cowan

G.M. Cowan


Documents

(Dkt37)TROMot2