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

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
mike.mcgrady@wyo.gov
matthias.sayer@wyo.gov
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.
)
)
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.
)

14-cv-152-NDF

STATE OF WYOMINGS RESPONSE BRIEF

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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 permissible

construction 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
Citizens Comm. 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 in 1971 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 nondiscretionary 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. at 1184-85.
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 nondiscretional 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 on public lands 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.1 16 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

The 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 horses
shall 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 any public 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 the

Wild 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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Case 2:14-cv-00152-NDF Document 70 Filed 01/20/15 Page 27 of 39

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 stray from 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 duty to 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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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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Case 2:14-cv-00152-NDF Document 70 Filed 01/20/15 Page 30 of 39

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 in Rock 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 citing Rock 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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Case 2:14-cv-00152-NDF Document 70 Filed 01/20/15 Page 32 of 39

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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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. 656658)). 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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Case 2:14-cv-00152-NDF Document 70 Filed 01/20/15 Page 36 of 39

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 significant environmental 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 RESPONDENTINTERVENOR 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
mike.mcgrady@wyo.gov
matthias.sayer@wyo.gov

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

32