70 - wyoming's msj

8/9/2019 70 - Wyoming's MSJ

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Michael J. McGrady, WSB No. 6-4099

Matthias L. Sayer, WSB No. 7-4677

Wyoming Attorney Generals Office

123 State Capitol

Cheyenne, WY 82002

Telephone: (307) 777-6946Facsimile: (307) 777-3542

[email protected]

[email protected]

Attorneys for Respondent-Intervenor

State of Wyoming

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF WYOMING

AMERICAN WILD HORSE )

PRESERVATION CAMPAIGN, et al., )

)

Petitioners, )

)

v. ) 14-cv-152-NDF

)

SALLY JEWELL, Secretary )

United States Department of the Interior; )NEIL KORNZE, Acting Director, )

United States Bureau of Land Management, )

)

Respondents, )

)

and )

)

ROCK SPRINGS GRAZING ASSOCIATION, )

a Wyoming Corporation, and the STATE OF )

WYOMING, )

)

Respondent-Intervenors. )

STATE OF WYOMINGS RESPONSE BRIEF

Case 2:14-cv-00152-NDF Document 70 Filed 01/20/15 Page 1 of 39


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TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................................................................... iv

INTRODUCTION ..................................................................................................... 1

BACKGROUND ....................................................................................................... 2

I. The Wild Horse Act .................................................................................... 2

II. The Checkerboard ...................................................................................... 4

III. History of Management on the Checkerboard ........................................... 5

ARGUMENT ........................................................................................................... 10

I. Standard of Review .................................................................................. 10

II. The Wild Horse Act authorizes the BLMs

2014 removal decision .............................................................................. 12

A. The plain language of the Wild Horse Act authorizes

the BLMs 2014 removal decision ................................................. 13

B. The BLMs 2014 removal decision is a permissibleconstruction of the Wild Horse Act ............................................... 19

III. Because the BLMs 2014 removal decision is authorized

under Section 4 of the Wild Horse Act, the decision does not

violate FLPMA ......................................................................................... 25

IV. Because the BLMs 2014 removal decision is authorized

under Section 4 of the Wild Horse Act, the decision does not

violate NEPA or the APA......................................................................... 26

V. The Court should not order the return of any wild horses that

were removed under the 2014 removal because the Campaign

is not entitled to observe any specific number of horses and the

remaining horses will quickly repopulate the area ................................... 30

CONCLUSION ........................................................................................................ 31



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CERTIFICATE OF SERVICE ................................................................................ 32



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TABLE OF AUTHORITIES

CASES

Am. Horse Prot. Assn, Inc. v. Frizzell,

403 F. Supp. 1206 (D. Nev. 1975) ........................................................................... 19

Am. Horse Prot. Assn, Inc. v. Watt,

694 F.2d 1310 (D.C. Cir. 1982) ........................................................................... 3, 14

Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,

467 U.S. 837 (1984) ........................................................................................... 11, 25

CitizensComm. to Save Our Canyons v. U.S. Forest Serv.,

297 F.3d 1012 (10th Cir. 2002) ............................................................................... 28

Dept of the Treasury, I.R.S. v. Fed. Labor Relations Auth.,

494 U.S. 922 (1990) ................................................................................................. 20

Fallini v. Hodel,

783 F.2d 1343 (9th Cir. 1986) ........................................................................... 23-24

Fund for Animals, Inc. v. U.S. Bureau of Land Mgmt.,460 F.3d 13 (D.C. Cir. 2006) ..................................................................................... 2

Green v. Bock Laundry Mach. Co.,

490 U.S. 504 (1989) ........................................................................................... 14, 16

Habitat for Horses v. Salazar,

745 F. Supp. 2d 438 (S.D.N.Y. 2010) ..................................................................... 31

In Def. of Animals v.U.S. Dept of Interior,

751 F.3d 1054 (9th Cir. 2014) ........................................................................... 14, 21

In Def. of Animals v. U.S. Dept of Interior,

909 F. Supp. 2d 1178 (E.D. Cal. 2012) ................................................................... 19

In re Acevedo,

497 B.R. 112 (Bankr. D.N.M. 2013) ....................................................................... 23



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King v. St. Vincents Hosp.,

502 U.S. 215 (1991) ................................................................................................. 13

Lands Council v. McNair,

537 F.3d 981 (9th Cir. 2008) ............................................................................. 10-11

Marsh v. Or. Natural Res. Council,

490 U.S. 360 (1989) ................................................................................................. 10

Martin v. Occupational Safety & Health Review Commn,

499 U.S. 144, 152 (1991) ......................................................................................... 20

Motor Vehicle Mfrs. Assn of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,

463 U.S. 29 (1983) ................................................................................................... 10

Mountain States Legal Found. v. Hodel,

799 F.2d 1423 (10th Cir. 1986) ................................................................................. 3

N.M. Cattle Growers Assn v. U.S. Fish & Wildlife Serv.,

248 F.3d 1277 (10th Cir. 2001) ............................................................................... 13

Olenhouse v. Commodity Credit Corp.,

42 F.3d 1560 (10th Cir. 1994) ................................................................................. 10

Pub. Lands Council v. Babbitt,

167 F.3d 1287 (10th Cir. 1999) ............................................................. 11, 19, 24-25

Roaring Springs Assocs. v. Andrus,

471 F. Supp. 522 (D. Or. 1978) .......................................................................passim

Rock Springs Grazing Assn v. Salazar,

935 F. Supp. 2d 1179 (D. Wyo. 2013). .............................................................passim

S. Utah Wilderness Alliance v. Dabney,222 F.3d 819 (10th Cir. 2000) ................................................................................. 23

United States v. Santiago,

846 F. Supp. 1486 (D. Wyo. 1994) ........................................................ 13-14, 16, 17



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United States v. Power Engg Co.,

303 F.3d 1232 (10th Cir. 2002) ............................................................................... 15

Utah Envtl. Cong. v. Bosworth,

443 F.3d 732 (10th Cir. 2006) ..................................................................... 27-28, 30

Winter v. Natural Res. Def. Council,Inc.,

555 U.S. 7 (2008) ..................................................................................................... 11

STATUTES

5 U.S.C. 706(2)(A) ................................................................................................ 10

16 U.S.C. 1331 .............................................................................................. 1, 2, 12

16 U.S.C. 1333 ...............................................................................................passim

16 U.S.C. 1334 ...............................................................................................passim

16 U.S.C. 1338(a)(3) ............................................................................................... 3

43 U.S.C. 1061 through 1066 ............................................................................... 5

43 U.S.C. 1712 ...................................................................................................... 26

RULES

40 C.F.R. 1508.4 ................................................................................................... 27

43 C.F.R. 4710.1 ............................................................................................... 2, 25

43 C.F.R. 4710.3-1 ............................................................................................ 2, 25

43 C.F.R. 4770.1 ..................................................................................................... 3

43 C.F.R. 4720.2-1 .................................................................................................. 9



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LEGISLATIVE HISTORY

H.R. Rep. No. 92-681 (1971) reprinted in1971 U.S.C.C.A.N. 2159

(Conf. Rep.) ....................................................................................................... 19-20

H.R. Rep. No. 95-1122 (1978). .................................................................................. 3



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INTRODUCTION

In this case, the American Wild Horse Preservation Campaign, the Cloud

Foundation, Return to Freedom, Carol Walker, Ginger Kathren, and Kimerlee

Curyl (collectively the Campaign) ask the Court to reverse the Bureau of Land

Managements (BLM) July 18, 2014 decision to remove wild horses from

checkerboard lands in southwestern Wyoming. See (2014 Final Removal Decision,

A.R. 3369). The 2014 removal decision was made under Section 4 of the Wild

Free-Roaming Horses and Burros Act, 16 U.S.C. 1331 through 1340 (Wild

Horse Act or the Act), in response to the Rock Springs Grazing Associations

request to remove wild horses that stray from public lands. See (Id.).

The BLMs 2014 removal decision is consistent with the Wild Horse Act.

The Act requires that the BLM remove wild horses from private lands, which can

only be accomplished in the checkerboard by removal of wild horses from all

checkerboard lands. The Campaign seeks to undermine the protections guaranteed

by the Act to private property owners. If Section 4 of the Act does not authorize

the removal of wild horses from all checkerboard lands, then the protections

guaranteed to private property owners are not available to checkerboard private

property owners. This cannot be the result Congress intended when it placed a non-

discretionary duty on the BLM to remove wild horses that stray from public lands.

Accordingly, the BLMs 2014 removal decision should be upheld.



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BACKGROUND

I. The Wild Horse Act

Congress passed the Wild Horse Act in 1971 out of concern that wild horses

were fast disappearing from the American scene. 16 U.S.C. 1331. Through the

Act, Congress sought to protect wild horses and burros from capture, branding,

harassment, or death[.] Id.To accomplish these goals, Congress authorized and

directed the Secretary of the United States Department of the Interior to protect

and manage wild free-roaming horses and burros as components of the public

lands[.] Id. 1333(a). The Secretary, acting through the BLM, has designated

specific ranges on public lands for wild horses called herd management areas.

Id.; 43 C.F.R. 4710.1. These areas are set out in the BLMs land use plans for

the maintenance of wild horse herds. 43 C.F.R. 4710.1, 4710.31.

In each herd management area, the [BLM] determines an appropriate

management level (AML) for the wild horse and burro populations. Fund for

Animals, Inc. v. U.S. Bureau of Land Mgmt., 460 F.3d 13, 16 (D.C. Cir. 2006)

(citing 16 U.S.C. 1333(b)(1)). Local BLM offices have significant discretion to

determine their own methods of computing AML for the herds they manage.Id.

As a result of the protections afforded wild horses by Congress, their

populations flourished. By 1978, Congress became concerned that wild horses

were becoming overpopulated and threatening the viability of their habitat. Am.



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Horse Prot. Assn, Inc. v. Watt, 694 F.2d 1310, 1316 (D.C. Cir. 1982). Congress

found that, [i]n the case of wild horses and burros in the Western States, Congress

acted in 1971 to curb abuses which posed a threat to their survival. The situation

now appears to have reversed, and action is needed to prevent a successful

program from exceeding its goals and causing animal habitat destruction. H.R.

Rep. No. 95-1122, at 23 (1978).

While the Act has succeeded at protecting wild horses on public lands, at no

point did Congress mandate that private landowners maintain wild horse

populations on private lands. In fact, Congress specifically provided in the Wild

Horse Act that wild horses that stray onto private lands shall be removed. See 16

U.S.C. 1334. Removal by the BLM is critically important to private landowners

because the Act and implementing regulations prohibit the harassment,

unauthorized chasing, pursuing, herding, roping, or attempting to gather or catch

wild free-roaming horses. See 16 U.S.C. 1338(a)(3); 43 C.F.R. 4770.1.

The Wild Horse Act was so drafted that the BLM was the only one who

could manage or control the impact of the increased number of horses using

everybodys land. Under the Act, the BLM exercises complete control of the

horses. Mountain States Legal Found. v. Hodel, 799 F.2d 1423, 1432 (10th Cir.

1986) (vacated on other grounds). While the Act allows private landowners to

maintain wild horses on private land if they so desire, the Act does not require



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them to do so. Id. In fact, once a landowner requests removal of wild horses that

stray from public land, the Act dictates that the nearest federal marshall or agent of

the Secretary shall arrange to have the animals removed[.] 16 U.S.C. 1334.

Thus, while the Act is primarily intended to protect wild horses, it also protects

private landowners.

The BLMs duty to remove wild horses that stray onto private land benefits

both landowners and the public.Roaring Springs Assocs. v. Andrus, 471 F. Supp.

522, 526 (D. Ore. 1978). Landowners receive the benefit of having the animals

removed from his land without cost and by merely reporting to the government that

they are on his land.Id. at 525. The removal also benefits the public[b]ecause

the landowner has an easy and cost-free way to remove the animals, he will not be

tempted to shoot or otherwise harm them. Accordingly, less animals will be

maimed or killed. Id. at 525-26. Thus, the removal mechanism fulfills a dual

objective, the protection of private landowners and wild horses.

II. The Checkerboard

The removal of wild horses from all checkerboard lands in Wyoming

complies with Congresss specific instructions to remove wild horses from private

property because of the unique nature of the checkerboard lands. The Wyoming

checkerboard is a strip of land containing approximately two million acres of state,

private, and federal land following the transcontinental railroad from Tipton to



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Bryan, Wyoming, in southwestern Wyoming. Rock Springs Grazing Assn v.

Salazar, 935 F. Supp. 2d 1179, 1182 (D. Wyo. 2013).

The checkerboard derives its name from the pattern of alternating

sections of private and public land which it comprises. The

checkerboard scheme of land ownership is a result of the Union

Pacific Act passed in 1862. Under that Act, the Union Pacific

Railroad Company was awarded the odd-numbered lots of public land

along the railbed right-of-way as the company completed each mile of

the transcontinental railroad. Today, more than half of the

checkerboard remains under federal ownership, while the remainder is

held privately.

Id. at 1182. Because the Wyoming checkerboard is not fenced, wild horses roam

freely from public to private lands throughout this area. Id. Indeed, fencing the

private lands in this area may violate the Unlawful Inclosures Act (43 U.S.C.

1061 through 1066), disrupt wildlife movement and migration routes, and increase

predation of birds, particularly the sage grouse. (Consent Decree, A.R. 464-465).

As noted by the BLM, due to the unique pattern of land ownership, and as

recognized in the Consent Decree, it is practicably infeasible for the BLM to meet

its obligations under Section 4 of the WHA while removing wild horses solely

from the private lands sections of the checkerboard. (A.R. 3360).

III.

History of Management on the Checkerboard

Management of wild horses under the Wild Horse Act within the

checkerboard lands has been a matter of controversy since the late 1970s. See

(A.R. 465). In early 1979, the Grazing Association and the BLM reached an



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agreement whereby the Grazing Association consented to tolerate five-hundred

wild horses within the checkerboard once BLM has proven that they are capable

of managing the wild horses with respect to numbers of horses to be allowed in the

Rock Springs District. (Id.). This arrangement demonstrated how Section 4 was

intended to functionwild horses could roam from public to private land under the

consent of the private landowner. See 16 U.S.C. 1334.

However, the BLM did not maintain wild horse numbers as it had agreed,

and in late 1979, the Grazing Association sued BLM to remove wild horses from

private lands. (A.R. 465).Under Section 4, once the Grazing Association removed

its consent, the BLM was then obligated to remove the wild horses that strayed. 16

U.S.C. 1334. The United States District Court for the District of Wyoming

directed the BLM to remove all wild horses from the checkerboard lands save that

number which the Grazing Association agreed to leave in the area. (Id.). The BLM

then worked to establish herd management areas (HMAs) and undertook wild

horse gathers to meet appropriate herd management level objectives. Rock Springs

Grazing Assn, 935 F. Supp. 2d at 1183.

Despite the BLMs efforts, the wild horse population within private

checkerboard lands continued to exceed the five-hundred agreed to by the Grazing

Association. Id. at 1184. In October 2010, the Grazing Association requested

removal of all wild horses from its lands. Id. Despite the Grazing Associations



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request, the BLM did not remove the wild horses.Id.at1184-85.

In July 2011, the Rock Springs Grazing Association filed a complaint

against the BLM in federal district court in Wyoming to compel removal of wild

horses from checkerboard lands under the Wild Horse Act. Id. at 1185. The

Grazing Association and the BLM settled the complaint, the terms of which were

approved by the Court in a February 12, 2013, Consent Decree. Id.

Under the Consent Decree, the BLM agreed to remove horses from the

Grazing Associations private lands, including Wyoming Checkerboard l. (A.R.

467). Various parties challenged the Consent Decree, and on April 3, 2013, the

Court upheld the Decree as a fair, reasonable, equitable and adequate settlement

of [the Grazing Associations] claims against the BLM, and which does not on its

face violate the law or public policy. Rock Springs Grazing Assn, 935 F. Supp.

2d at 1191.

In 2013, the BLM released a Scoping Statement regarding a proposal to

remove all wild horses that have strayed onto private lands (checker board) within

the Great Divide Basin Herd Management Area. (A.R. 822). The BLM also

proposed that [e]xcess wild horses would be removed and the remainder relocated

in the northern part of the Great Divide Basin HMA. (Id.). As part of this

proposed removal of both excess and stray wild horses, the BLM contemplated

preparing an Environmental Assessment (EA). (A.R. 823). The Scoping Statement



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opened a public comment period, during which the BLM received more than

13,000 comment letters from individuals, organizations, and agencies. (A.R. 3357).

Many comments, including those from the Grazing Association, expressed concern

that the BLMs proposal to remove wild horses to low AML for the Great Divide

Basin HMA was inconsistent with the 2013 Consent Decree, which required

removal of all wild horses from checkerboard lands. (Id.).

Upon consideration of public comments, the BLM revised the proposed

removal to exclude the removal of any excess horses from non-checkerboard lands

and to remove all wild horses from the checkerboard portions of the Great Divide

Basin, Salt Wells Creek, and Adobe Town HMAs. (A.R. 3369). By limiting the

removal to the checkerboard, the BLM decided to proceed entirely under Section 4

of the Act. (Id.). (A.R. 3369); see 16 U.S.C. 1334. The BLM also published a

Categorical Exclusion Documentation, wherein it examined the proposed action

for extraordinary circumstances to ensure the decision aligned with NEPA

requirements. Ultimately, the BLM determined that the 2014 removal would not

have any significant environmental impacts and, thus, did not require an EA. (A.R.

3360-3365).

On August 1, 2014, the Campaign filed a petition for review of the BLMs

decision and asserted that a preliminary injunction should be granted to enjoin the

federal Respondents from removing wild horses from checkerboard lands within



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the affected herd management areas. On August 28, 2014, this Court denied the

Campaigns motion. The Court held that the Campaign was not likely to succeed

on the merits of its claims because the removal of wild horses from the

checkerboard lands is consistent with the Wild Horse Act. See (Order Denying

Petitioners Motion, ECF No. 35).

After this Court denied the Campaigns motion seeking a preliminary

injunction, the BLM carried out the 2014 checkerboard removal. See (Id.). From

September 15, 2014 to October 9, 2014, the BLM removed 1,263 wild horses from

the checkerboard portions of the affected HMAs. See www.blm.

gov/wy/st/en/programs/Wild_Horses/14cb-removal/dailyreports.html (last visited

Jan. 7, 2015). The wild horses removed from the checkerboard were sent to various

holding facilities, where they are available for adoption. See www.

blm.gov/wy/st/en/programs/Wild_Horses/14cb-removal.html (last visited Jan. 7,

2015).

The BLMs 2014 removal decision was necessary to comply with Section 4

of the Wild Horse Act, which requires removal of wild horses that stray from

public lands onto privately owned land; with BLM regulations, which require

BLM to remove stray wild horses and burros from private lands as soon as

practicable; and with the Consent Decree. See 16 U.S.C. 1334; 43 C.F.R.

4720.2-1; (A.R. 467).



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ARGUMENT

I. Standard of Review

The Court reviews the BLMs 2014 removal decision under the judicial

review provisions of the Administrative Procedures Act (APA). See Olenhouse v.

Commodity Credit Corp., 42 F.3d 1560, 1573 (10th Cir. 1994). Under this

standard, the Court may only set aside the agency decision if it is found to be

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

law. 5 U.S.C. 706(2)(A). The scope of review under the arbitrary and

capricious standard is narrow[.] Motor Vehicle Mfrs. Assn. of U.S., Inc. v. State

Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). The Court must ensure the

agency examine[d] the relevant data and articulate[d] a satisfactory explanation

for its action including a rational connection between the facts found and the

choice made.Id. (quotations omitted).

A court should uphold an agency decision of less than ideal clarity if the

agencys path may reasonably be discerned. Id. (quotations omitted). This is

because a court may not substitute its judgment for that of the agency or merely

determine it would have decided an issue differently. See Marsh v. Or. Natural

Res. Council, 490 U.S. 360, 377 (1989). The Courts proper role is simply to

ensure the BLM made no clear error of judgment that would render its action

arbitrary and capricious. Lands Council v. McNair, 537 F.3d 981, 992 (9th Cir.



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2008) (en banc) (quotations omitted) overruled on other grounds by Winter v.

Natural Res. Def. Council, Inc., 555 U.S. 7 (2008). To afford the agency less

deference ignores the APAs arbitrary and capricious standard of review. See

Lands Council, 537 F.3d at 993. The Court is not free to impose on the agency

[its] own notion of which procedures are best or most likely to further some vague,

undefined public good. Nor may [it] impose procedural requirements [not]

explicitly enumerated in the pertinent statutes. Id. (citations and quotations

omitted).

When a court reviews an agencys construction of a statute it administers,

the specificity of the statute shapes the courts inquiry. Pub. Lands Council v.

Babbitt, 167 F.3d 1287, 1293 (10th Cir. 1999) (citing Chevron, U.S.A., Inc. v.

Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984)). First, the court must

ask whether Congress has directly spoken to the precise question at issue. Id.If

the intent of Congress is clear, that is the end of the matter; for the court, as well as

the agency, must give effect to the unambiguously expressed intent of Congress.

Id.However, if Congress has not directly addressed the precise question at issue,

the court does not simply impose its own construction on the statute.Id. Rather, the

court then asks, whether the agencys answer is based on a permissible

construction of the statute.Id.



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II. The Wild Horse Act authorizes the BLMs 2014 removal decision.

The Wild Horse Act protects wild horses from capture, branding,

harassment, or death and considers them an integral part of the natural system of

the public lands. 16 U.S.C. 1331. The Act does not, however, obligate private

landowners to maintain wild horses. Id. Rather, the Act protects landowners by

requiring the BLM to remove wild horses that stray. See 16 U.S.C. 1334;

Roaring Springs Assocs., 471 F. Supp. at 525 (holding that the statute places a non-

discretional duty on the government to remove the animals from private lands).

Under Section 3 of the Act, the BLM is directed to manage and protect wild horses

and to remove excess wild horses from public lands to maintain a thriving natural

ecological balance. Unlike Section 3, Section 4 is not directed at wild horse

protection and management but rather the protection of private property. Under

Section 4, once a landowner notifies the BLM of wild horses that stray, the BLM

must remove the animals. See 16 U.S.C. 1333, 1334. Thus, the Act works to

both protect and manage wild horses and protect the interests of private

landowners.Id.

The Campaign ignores the Acts private property protections, arguing that

BLM has converted the WHA from a wildlife protection law into a landowner

protection law. (the Campaigns Opening Brief, ECF No. 67 at 45). If Congress

had not intended to protect landowners, it would have not included Section 4 in the



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Wild Horse Act. Under a Section 4-less Act, the Campaigns argument would be

spot on. But, as it is, Congress did intend to protect private landowners from the

burdens of maintaining wild horses and, thus, included Section 4 in the Act. See 16

U.S.C. 1334. Acting under Section 4, the BLMs 2014 removal decision was

consistent with the Wild Horse Act.

A. The plain language of the Wild Horse Act authorizes the BLMs 2014

removal decision.

The Campaign argues that the Court must begin with the plain language of

the Act and that Section 3 governs all BLM actions onpubliclands related to wild

horses and delineates the specific legal prerequisites that must be satisfied before

BLM may permanently remove any wild horses from public land. (ECF No. 67 at

33 (emphasis in original). The Campaign oversimplifies the BLMs removal

decision by ignoring the realities of the checkerboard and the protections afforded

private property under Section 4 of the Act. While the Court must begin its

analysis of the Act with examination of the plain language of the law, the Court

must also abide by the cardinal rule . . . that a statute is to be read as a whole,

since the meaning of statutory language, plain or not, depends on context. N.M.

Cattle Growers Ass'n v. U.S. Fish & Wildlife Serv., 248 F.3d 1277, 1281 (10th Cir.

2001) (internal citations omitted)); King v. St. Vincents Hosp., 502 U.S. 215, 221

(1991) (internal citations omitted). Further, the Court must avoid any construction

that produces absurd results. See United States v. Santiago, 846 F. Supp. 1486,



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1496 (D. Wyo. 1994) (citing Green v. Bock Laundry Mach. Co., 490 U.S. 504, 527

(1989)).

The Campaigns argument focuses almost exclusively on the provisions of

Section 3 of the Act regarding the removal of excess horses from public land.

However, the BLMs decision was not made under Section 3, but under Section 4.

See (Campaigns Br. ECF. No. 67 at 33-39); (A.R. 3369). Read in isolation, the

provisions of Section 3 seem clearthe BLM must remove excess horses from

public lands in order to maintain a thriving ecological balance.116 U.S.C. 1333.

If all lands were public, the way forward under Section 3 would be clearwild

horses stay put until an overpopulation exists. However, Section 3 offers no path

forward for managing wild horses that stray from public land. Section 3 must then

be read in the context of the larger Act. Congress recognized that wild horses

would stray and, thus, provided in Section 4 that when wild free-roaming horses

1The Campaign asserts that prior to removing excess horses, the BLM must make

a formal excess determination. (ECF No. 67 at 34). This position is without

support. In In Defense of Animals v. United States Department of Interior, the

Ninth Circuit Court of Appeals held that the BLM can rely on the appropriate

management level (AML) as a trigger for it to immediately address population

imbalance by removing wild horses. In Def. of Animals v. U.S. Dept of Interior

751 F.3d 1054, 1063-64 (9th Cir. 2014). In American Horse Protection

Association, Inc. v. Watt, the D.C. Circuit Court of Appeals held that horsesshall be removed immediately once the Secretary determines, on the basis of

whatever information he has at the time of his decision, that an overpopulation

exists. The BLMs findings of wild horse overpopulations should not be

overturned quickly on the ground that they are predicated on insufficient

information.Am. Horse Prot. Assn, Inc. v. Watt, 694 F.2d 1310, 1318 (D.C. Cir.

1982) (emphasis in original).



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or burros stray from public lands onto privately owned land, the owners of such

land may inform the nearest Federal marshall or agent of the Secretary, who shall

arrange to have the animals removed. 16 U.S.C. 1334. Read together, Sections 3

and 4 cover the universe of scenariosremove wild horses from public lands when

overpopulations occur and, upon the landowners request, remove wild horses that

stray from public land.

The Campaign concludes that Congress expressly designated the WHA as

imposing an absolute requirement that BLM satisfy various prerequisites before

removing any wild horses from anypublic lands. (ECF No. 67 at 37) (emphasis in

original). The Campaign also contends that, Section 4 plainly does not confer

BLM any authority to permanently remove wild horses from public lands. (Id. at

35) (emphasis in original). This argument is wrong.

The Act imposes a duty on the Secretary to remove wild horses and burros

that stray from public land upon notice from private landowners [and] does not

qualify private landowners or their land in any way. The BLMs removal duty

extends to all private landowners who have wild horses and burros stray upon their

land. Roaring Springs Assocs., 471 F. Supp. at 525. If Section 4 does not

authorize the 2014 removal decision, then the Acts private property protections

are rendered meaningless to private property owners within the checkerboard,

where wild horses stray in and out of private property daily, even hourly. See



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United States v. Power Engg Co., 303 F.3d 1232, 1238 (10th Cir. 2002) (holding

that a court cannot construe a statute in a way that renders words or phrases

meaningless). This cannot be the outcome Congress intended. If Section 4 does not

authorize the removal of wild horses from all checkerboard lands, what is the

checkerboard private landowners remedy? There is none.

Under the Campaigns construction, the BLM may not remove those wild

horses unless the animals hooves are still on private property when the BLM

arrives to remove them. This approach entirely ignores the practical reality of the

checkerboard. The reality of the checkerboard is that every public parcel is

surrounded by private land, thus, wild free roaming horses in the checkerboard

meander on and off private property. See (ECF No. 67 at 41). The Campaign

argues for a construction of the Act where private landowners within the

checkerboard are refused the protections guaranteed by Congress unless the BLM

becomes omnipresent across the approximately two million acres of checkerboard

land, ever ready to remove horses that stray while their hooves are on private

property. See Rock Springs Grazing Assn, 935 F. Supp. 2d at 1182 (recognizing

that the checkerboard contains approximately two million acres). The Court should

reject this absurd result. Santiago, 846 F. Supp. at 1496 (citing Green,490 U.S. at

527 (holding that a court must avoid any construction that produces an absurd

result)).



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The Campaigns construction, requiring an omnipresent BLM, would also

violate the Acts requirement that all management activities shall be at the

minimal feasible level. 16 U.S.C. 1333(a). As noted by the Court in its Order

Denying Petitioners Motion, the Campaigns approach invites failure by BLM to

timely remove horses that stray onto private lands [and] require[s] intensive

management of straying horses on the checkerboard. Neither [of which] is

permitted. (ECF No. 35 at 13); see Santiago, 846 F. Supp. at 1496; Roaring

Springs Assocs. v. Andrus, 471 F. Supp. at 526 (holding that the BLMs duty to

remove stray wild horses is not discretionary); 16 U.S.C. 1333(a) (requiring that

[a]ll management activities shall be at the minimal feasible level.).

The Campaign asserts that Section 3 governs all BLM actions on public

lands related to wild horses. (ECF No. 67 at 33 (emphasis in original)). While

Section 3 does address wild horse management on given areas of the public

lands, it does not govern all BLM actions on public lands related to wild horses.

See 16 U.S.C. 1333(b)(1). Section 4 of the Act requires the removal of wild

free-roaming horses that stray from public lands onto privately owned land. 16

U.S.C. 1334. Nothing in Section 4 requires the narrow construction argued for by

the Campaign, where wild horses that stray can only be removed while their

hooves remain on private property. The Act does not require removal of wild

horses while straying but removal of wild horses that stray from public lands.



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A horse need not be in the act of straying to be a horse that strays from public

land to privately owned land. 16 U.S.C. 1334. And, because of the unique

nature of the checkerboard, a wild horse that is in the checkerboard is, by

necessity, a wild horse that strays.

This Court followed this interpretation in its Order Denying Petitioners

MotionSection 4 is not limited to the removal of wild horses from private

lands. Rather, the mandate addresses the removal of free-roaming horses that

stray from public lands onto privately owned lands. (ECF No. 35 at 14)

(emphasis in original).

Finally, the Campaign implies that the BLMs removal decision violated the

Wild Horse Act because the wild horses, once removed, will not be returned to the

public lands from which they strayed. (ECF No. 67 at 15-16). This implication is

conclusory and without legal support. Neither the Wild Horse Act nor its

implementing regulations require that wild horses removed from private lands be

returned to public lands. Rather, the law is silent as to the eventual home of wild

horses removed from private lands, requiring only that the BLM shall arrange to

have the animals removed. 16 U.S.C. 1334. Absent other direction, it is

reasonable to conclude that wild horses removed from private lands should follow

the only course laid out in the Wild Horse Act for handling removed horses. See 16

U.S.C. 1333(b)(2).



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As noted by the Campaign, Congress was acutely aware of the peculiarities

of the Wyoming Checkerboard when it enacted the WHA in 1971. (ECF No. 67 at

34). Being acutely aware of the peculiarities of the checkerboard, it stands to

reason that Congress would not have excluded private property owners within the

checkerboard from the protections afforded under Section 4 of the Act. The BLMs

2014 removal decision comports with the plain language of the Wild Horse Act,

avoids the absurd results of the Campaigns construction, and should be upheld.

B.

The BLMs 2014 removal decision is a permissible construction of theWild Horse Act.

If the Court determines that Section 4 of the Act does not clearly authorize

the 2014 removal decision, the court then must ask whether the BLMs decision is

based on a permissible construction of the statute. Pub. Lands Council, 167 F.3d at

1293-94. In answering this question, it should be emphasized that an agency like

BLM has considerable discretion on how to carry out the directives of the Act in

any event. In Def. of Animals v. U.S. Dept of Interior, 909 F. Supp. 2d 1178,

1190 (E.D. Cal. 2012) (internal citations omitted); Am. Horse Prot. Assn, Inc. v.

Frizzell, 403 F. Supp. 1206, 1217 (D. Nev. 1975). As stated by the Conference

Committees report on the Act, [t]he Secretaries of Interior and Agriculture are

given a high degree of discretionary authority for the purposes of protection,

management, and control of wild free-roaming horses and burros on the public

lands. H.R. Rep. No. 92-681 (1971), 1971 U.S.C.C.A.N. 2159, 2160 (Conf.



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Rep.). This Court previously recognized in its Order Denying Petitioners Motion

that the BLMs removal decision was based on a permissible construction of the

Act when it stated that Section 4 is not limited to the removal of wild horses from

private lands. Rather, the mandate addresses the removal of free-roaming horses

that strayfrom public lands onto privately owned lands. (ECF No. 35 at 14). The

Campaign does not provide any reason to now find otherwise.

The Campaign argues that the BLM must make some assertion of a statutory

ambiguity and provide some discernible rationale for why it determined to proceed

under Section 4 of the Act. (ECF No. 67 at 40 citing Dept of the Treasury, I.R.S.

v. Fed. Labor Relations Auth., 494 U.S. 922 (1990)). Department of the Treasury

does not, however, hold that an agency has a dutyto assert a statutory ambiguity,

but rather, that an agency has the authority to do so. See Dept of the Treasury,

494 U.S. at 933. Like all federal agencies, the BLM is empowered to construe

Congresss instructions, whether clearly or ambiguously expressed, without

making some formal recognition of a statutory ambiguity. See Martin v.

Occupational Safety & Health Review Commn, 499 U.S. 144, 152 (1991) (holding

that Congress delegates interpretive power to the administrative actor).

The Campaign also argues that the BLMs decision is legally impermissible

because it directly conflicts with decades of the agencys own practice in the

Checkerboard. (ECF No. 67 at 41) (emphasis in original). The Campaign cites



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21

various instances where it alleges that the BLM has expressed a conflicting

position regarding the removal of wild horses from private lands, including: (1) the

BLMs wild horse policy manual and handbook; (2) a prior removal decision; and

(3) a statement made by counsel for the BLM in prior litigation. (Id. at 41-43).The

BLMs 2014 removal decision is not rendered legally impermissible by the cited

instances because those instances do not directly conflict with the BLMs removal

decision and because the removal decision is based on a permissible construction

of the Act.

First, while the Campaign states that the BLMs removal decision is in direct

conflict with its wild horse policy manual and handbook, in doing so, the

Campaign continues to ignore Section 4 of the Act. The Campaign asserts that the

BLM wild horse handbook and manual prohibit BLM from permanently

removing wild horses from public lands without first making a formal excess

determination. (ECF No. 67 at 43). However, the handbook and manual only lay

out the process for establishing AML and for making an excess determination

under Section 3. See (A.R. 262-264, 3395); see also In Def. of Animals v. U.S.

Dep't of Interior, 751 F.3d 1054, 1063-64 (9th Cir. 2014) (holding that the BLM

can rely on the AML as a trigger for it to immediately address population

imbalance by removing wild horses). Neither the manual nor the handbook provide

any guidance regarding removals under Section 4.



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Second, the Campaign argues that the 2014 removal decision is

functionally identical to a 2013 roundup, which occurred under Sections 3 and 4,

and that the 2014 removal should have also proceeded under Sections 3 and 4.

(ECF No. 67 at 42). However, the 2013 and 2014 removals are not functionally or

substantively identical. The 2013 removal included both checkerboard lands and

non-checkerboard public lands within the Adobe Town and Salt Wells HMAs.

(2013 EA, A.R. 486-487). As a result, in the 2013 removal the BLM removed

excess wild horses from public lands under Section 3 and from private lands under

Section 4. (Id.).

Unlike the 2013 removal, the 2014 removal was limited to checkerboard

lands and did not extend to non-checkerboard public lands. (A.R. 3369). In fact, in

2014, the BLM originally intended to remove wild horses under Sections 3 and 4

from the checkerboard and non-checkerboard lands of the Great Divide Basin

HMA. (A.R. 822-823). However, after receiving public comment, the BLM

decided to limit the 2014 removal to the checkerboard lands within the Adobe

Town, Salt Wells, and Great Divide Basin HMAs. (Categorical Exclusion

Documentation, A.R. 3357). The 2014 decision is not in conflict with the 2013

removal decision because the 2014 decision was limited in its scope to

checkerboard lands. (A.R. 3369). Because the 2014 removal did not extend onto



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public non-checkerboard lands, the BLM did not need to rely on Section 3 to carry

out the 2014 removal.

Third, the Campaign argues the 2014 removal decision is at odds with

BLMs stated position to this Court and other federal courts, citing statements

made by counsel for the BLM in a brief filed inRock Springs Grazing Assn, 935

F. Supp. 2d at 1182. These prior statements made by counsel for the BLM as part

of its litigation response are accorded little deference and should not be accepted as

the BLMs interpretation of the Wild Horse Act. In re Acevedo, 497 B.R. 112 n.19

(Bankr. D.N.M. 2013) (citing S. Utah Wilderness Alliance v. Dabney, 222 F.3d

819, 828 (10th Cir. 2000) (holding that [a] court should not automatically accept

an agency's litigation position as evidence of the agencys interpretation of the

statute)).

The Campaign argues that the 2014 removal decision is contradicted by the

BLMs objections to the Grazing Associations request for an order forcing the

BLM to manage wild horses on private and public lands to the number the Grazing

Association deems appropriate. (ECF No. 67 at 42-43 citingRock Springs Grazing

Assn v. Salazar, 935 F. Supp. 2d 1179). In Rock Springs Grazing Association v.

Salazar, the BLM argued against the order by equating the removal of wild horses

from the checkerboard to an affirmative duty on the BLM to prevent wild horses

from straying, which the Act does not explicitly require. Id. at 34-35; see Fallini v.



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Hodel, 783 F.2d 1343, 1345 (9th Cir. 1986). However, the unique nature of the

checkerboard land pattern at issue in this case distinguishes it from the issue of

preventing horses from straying, which was the issue addressed in Fallini v. Hodel.

In Fallini, a private landowner owned less than three-tenths of a percent of

an area containing over 650,000 acres of non-checkerboard public land and sought

to require the BLM to prevent wild horses from straying onto his property. Fallini,

783 F.2d at 1344. The Fallini court held that the Act did not include a duty to

prevent straying. Id. at 1346. This holding was premised on the notion that the

private landowner had adequate relief in the form of removal under Section 4.Id.

at 1346-47. In the checkerboard, the meaningful relief required under Section 4

becomes meaningless unless wild horses are removed from all checkerboard lands.

Id. at 1347. Because of the areas checkerboard pattern, wild horses straying onto

private property is not merely a possibility but a certainty. See Rock Springs

Grazing Assn, 935 F. Supp. 2d at 1182 (recognizing that because the Wyoming

Checkerboard is not fenced, wild horses move freely throughout the area.).

The Campaign essentially argues that whether the Act authorizes the 2014

removal decision turns not on the language of the Act, but on prior litigation

statements. (ECF No. 67 at 42).This is incorrect. Regardless of the BLMs prior

statements, the issue before the Court is whether the 2014 removal decision is

based on a permissible construction of the statute. Pub. Lands Council, 167 F.3d



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at 1293 (citing Chevron, 467 U.S. at 842-43). The BLMs 2014 removal decision

appropriately implements the agencys obligations under Section 4 of the Act, and

none of the BLMs prior statements or actions lead to a contrary conclusion.

III. Because the BLMs 2014 removal decision is authorized under Section 4

of the Wild Horse Act, the decision does not violate FLMPA.

The Campaign argues that by reducing the number of wild horses in the

affected HMAs to below their AMLs, the BLM has illegally amended or revised

the AMLs outside of the required FLPMA land planning process. (ECF No. 67 at

45-46). The Campaigns argument ignores Section 4 of the Wild Horse Act, under

which the removal of wild horses that stray is not subject to the same requirements

and considerations as a removal of excess wild horses under Section 3. Section 3

requires that the removal of excess horses occur so as to achieve appropriate

management levels . . . [and] to restore a thriving natural ecological balance. 16

U.S.C. 1333(b)(2)(iv). However, because Section 4 exists to protect private

property, it is silent as to both AML and restoring or maintaining the thriving

natural ecological balance. See 16 U.S.C. 1334.

The State does not disagree with the Campaigns argument that AML is

established and adjusted through the land use planning process. See 43 C.F.R.

4710.1, 4710.3-1. However, the Campaigns argument misses the mark. The BLM

did not adjust the AML; rather, it removed wild horses that stray under Section 4,

which action does not implicate the AML or the public land use planning process.



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See 16 U.S.C. 1334. As noted by the BLM in its 2014 removal decision,

FLPMA and its land use planning requirements apply only to the BLMs

management of the public lands, not private lands. (A.R. 3371 (citing 43 U.S.C.

1712)). The BLM also stated that [t]he management direction set forth in the

Green River and Rawlins [land use plans], including that related to appropriate

management levels (AMLs), do not apply to private lands. (Id.). Finally, the BLM

explained in the removal decision that it was addressing the ongoing management

of wild horses on public lands within the affected HMAs through revisions and

amendments of the Rock Springs and Rawlins land use plans, through which

processes the BLM will consider adjusting the AML for the affected HMAs. See

(A.R. 3372).

Because removal under Section 4 is a non-discretionary duty, the BLM may

not base Section 4 removals on the AML or the thriving ecological balance, but

rather on whether a landowner has requested removal. See Roaring Springs

Assocs., 471 F. Supp. at 526 (holding that the BLMs duty to remove stray wild

horses is not discretionary).

IV.

Because the BLMs 2014 removal decision is authorized under Section 4

of the Wild Horse Act, the decision does not violate NEPA or the APA.

The Campaign also argues that because the BLM did not prepare an EIS or

an EA, it violated its duty under NEPA. (ECF No. 67 at 40). Whether the BLMs

2014 removal decision violated NEPA turns on whether the decision was



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27

authorized by the Act. If the removal decision is authorized by Section 4, then the

action is eligible for a categorical exclusion, and the Campaigns NEPA argument

fails. Section 4 of the Act authorizes the removal decision because it requires the

BLM to remove wild horses that stray, which can only be accomplished in the

checkerboard if wild horses are removed from all checkerboard lands. See 16

U.S.C. 1334.

Under the Department of the Interiors Manual, the removal of wild horses

or burros from private lands at the request of the landowner is eligible for a

categorical exclusion from the preparation of an EA or EIS if the action does not

present any extraordinary circumstances.Department of Interior Manual, BLM

516 DM 11.9(D)(4); (A.R. 3386, 3389); see 40 C.F.R. 1508.4. As part of the

2014 removal the BLM reviewed the decision for extraordinary circumstances

that would require additional NEPA analysis. See (A.R. 3360-3364). Upon

examination of each of the extraordinary circumstances factors, the BLM

determined that there were no extraordinary circumstances warranting an EA or an

EIS. (Id.).

An extraordinary circumstance exists only where a proposed action may

have significant environmental effect. Utah Envtl. Cong. v. Bosworth, 443 F.3d

732, 742 (10th Cir. 2006) (emphasis in original) (citing 40 C.F.R. 1508.4). The

existence of some possible effects is not an extraordinary circumstance. Id. at



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744. When reviewing an agencys interpretation and application of its categorical

exclusions under the arbitrary and capricious standard courts afford[] the

agencys interpretation substantial deference.Id. at 743 (citing Citizens Comm. to

Save Our Canyons v. U.S. Forest Serv., 297 F.3d 1012, 1023 (10th Cir. 2002).

The Campaign argues that even if the removal decision was eligible for a

categorical exclusion, extraordinary circumstances exist and, thus, the BLM should

have performed an EA or EIS. (ECF No. 67 at 42-43). However, other than

alleging that the removal decision significantly impacts the environment, the

Campaign provides no factual support for its argument. (Id.).

The Campaign compares the 2014 removal to the 2013 removal of excess

and straying wild horses where the BLM noted in an EA the potential effects of the

removal on natural resources in the HMAs. (ECF No. 67 at 50 (citing A.R. 656-

658)). However, review of the 2013 EA reveals that no significant environmental

effects were documented. In fact, the EA found that the 2013 removal would

improve certain environmental conditions. Specifically, the EA found that the

alternative that resulted in the lowest remaining number of horses for the longest

period of time would have the greatest potential positive impact on both riparian

health and water quality. (A.R. 512). The EA also determined that the reduction

of vegetative cover and increased trampling resulting from higher wild horse

numbers has led to increased soil compaction and surface disturbance leading to



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potential accelerated run off and subsequent soil erosion. (A.R. 510). Regarding a

no action alternative, the EA concluded that, if no action were taken, range

conditions would deteriorate, which would affect the native vegetation species as

well as the habitat for special status species. (Id. at 513). Ultimately, based on the

EA, the BLM determined that the 2013 removal would not have significant

environmental impacts. (A.R. 631-632).

The Campaign also alleges that the 2014 removal decision will have

significant effects on wild horse band social structures. (ECF No. 67 at 50).

As part of the 2013 EA, the BLM looked at this issue as well and found that

increased social displacement was an indirect individual effect of the 2013

removal. (A.R. 503). The EA concluded that [w]ith the exception of changes to

herd demographics from removals, direct population effects have proven to be

temporary in nature with most, if not all, effects disappearing within hours to

several days of release. (Id.). Ultimately, in the 2013 EA, these effects were

determined not to be significant environmental impacts. (A.R. 631-632). This

institutional knowledge is reflected in the BLMs 2014 extraordinary

circumstances analysis when the agency determined that the 2014 removal did not

pose unique or unknown risks and that the effects of gather operations on wild

horses are well understood and this removal is not expected to create highly

uncertain environmental effects. (A.R. 3362).



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The Campaign seeks to upset the 2014 removal decision because removing

all wild horses from the checkerboard lands will have some impacts. (ECF NO.

67 at 52). However, some impacts are not extraordinary circumstances

requiring additional NEPA review. Utah Envtl. Cong., 443 F.3d at 744 (holding

that the mere presence of one or more of these resource conditions does not

preclude use of a categorical exclusion.). The BLM must first determine that a

proposed action produces a significant effect before it is required to engage in

further NEPA analysis. Id. at 742. Having found that the 2014 removal decision

would not result in any significantenvironmental effect, the BLMs determination

that there were no extraordinary circumstances warranting an EA or EIS was

consistent with NEPA.Id.

If the Court determines that the BLM should have conducted additional

NEPA review as part of its 2014 removal decision, the Court should not reverse the

BLMs decision, but rather remand the decision to the BLM for additional NEPA

review.

V. The Court should not order the return of any wild horses that were

removed under the 2014 removal because the Campaign is not entitled

to observe any specific number of horses and the remaining horses will

quickly repopulate the area.

In their Declarations, Suzanne Roy, Carol Walker, and Ginger Kathrens

request that the Court order the BLM to return the wild horses that were

removed from the affected HMAs. (ECF No. 67 at 31). It is not clear, however, if



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the Campaign is actually requesting this drastic relief or if it is merely noting

through the Declarations that such relief is an available remedy. See (ECF No. 67

at 31 (stating that various remedial measures exist that could redress the

Campaigns injuries)). Furthermore, the Campaign fails to point the Court to any

authority requiring such a drastic remedy.

The Campaigns backdoor request essentially asks the Court to retroactively

grant the preliminary injunction the Court already declined to grant. The Court

should not grant the Campaigns request because the Campaign has no

enforceable right to observe a particular number of animals. Habitat for Horses

v. Salazar, 745 F. Supp. 2d 438, 448 (S.D.N.Y. 2010). Moreover, owing to very

high growth rates, the horses remaining in the affected HMAs will quickly restore

the wild horse population to near pre-removal levels. See (A.R. at 555) (noting that

average growth rate has been as high as twenty-five percent).

CONCLUSION

For the foregoing reasons, the State of Wyoming requests that the Court

uphold the BLMs 2014 removal decision.



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Submitted this 20th day of January 2015.

ATTORNEYS FOR RESPONDENT-

INTERVENOR STATE OF WYOMING

By: /s/ Matthias L. Sayer

Michael J. McGrady, WSB No. 6-4099

Matthias L. Sayer, WSB No. 7-4677

Wyoming Attorney Generals Office

123 State Capitol

Cheyenne, WY 82002

Telephone: (307) 777-6946

Facsimile: (307) 777-3542

[email protected]

[email protected]

CERTIFICATE OF SERVICE

I certify that on the 20th day of January, 2015, I electronically filed the

foregoing with the Clerk of the U.S. District Court of Wyoming using the CM/ECF

system which sent a Notice of Electronic filing to counsel of record for the parties.

/s/ Matthias L. Sayer

Attorney for Respondent-Intervenor

State of Wyoming


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