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Timothy Kingston (WY Bar No. 5-2476) LAW OFFICE OF TIM KINGSTON, LLC 620 East 27th Cheyenne, WY 82001 TEL: (307) 638-8885 FAX: (307) 637-4850 William S. Eubanks II (D.C. Bar No. 987036 (admitted pro hac vice) MEYER GLITZENSTEIN & EUBANKS LLP 245 Cajetan Street Fort Collins, CO 80524 (970) 703-6060 / (202) 588-5049 (fax) [email protected] William N. Lawton (Oregon Bar No. 143685 (admitted pro hac vice) MEYER GLITZENSTEIN & EUBANKS LLP 4115 Wisconsin Ave, NW, Suite 210 Washington DC, 20016 (202) 588-5206 / (202) 588-5049 (fax) [email protected] Counsel for Petitioners

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING AMERICAN WILD HORSE PRESERVATION CAMPAIGN, et al., Petitioners v.

SALLY JEWELL, et al., Respondents.

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Civ. No. 16-cv-246

MOTION FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION

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Pursuant to Federal Rule of Civil Procedure 65 and Local Rule 83.6(f), Petitioners hereby move for a temporary restraining order and/or preliminary injunction to enjoin Federal Respondents from permanently removing hundreds of federally protected wild horses from the public Checkerboard lands within the Adobe Town, Salt Wells Creek, and Great Divide Basin Herd Management Areas (“HMAs”) in southwest Wyoming, pursuant only to the Bureau of Land Management’s (“BLM”) limited authority in Section 4 of the Wild Free-Roaming Horses and Burros Act (“Wild Horse Act”), 16 U.S.C. § 1334, that Congress expressly limited in application to private lands. Although the parties have fully briefed and argued a related case before the United States Court of Appeals for the Tenth Circuit concerning Federal Respondents’ analogous activities undertaken in 2014, see Tenth Circuit Appeal No. 15-8033—which will result in a ruling from that Court with a dispositive bearing on whether BLM may lawfully permanently remove wild horses from public lands using only the limited private land removal authority in Section 4 of the Act—BLM has refused even to temporarily postpone its wild horse removal activities pending issuance of the Tenth Circuit’s ruling. Accordingly, Petitioners are left with no choice but to respectfully request that this Court temporarily enjoin BLM’s actions through a preliminary injunction and/or a temporary restraining order to maintain the status quo pending the Tenth Circuit’s issuance of a forthcoming ruling in Appeal No. 15-8033. As the transcript of the oral argument in that case would reveal, and as this Court recognized when it certified its merits ruling on this issue for immediate appeal, see American Wild Horse Preservation Campaign v. Jewell, No. 2:14-cv-152 (Freudenthal, J.), ECF No. 93, Petitioners have raised a serious issue on the merits with respect to the matter pending before the Tenth Circuit.

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As with the 2014 Wyoming Checkerboard wild horse removal at issue in that appeal, in its new decision BLM has authorized the permanent removal of hundreds of wild horses from public lands (as well as private lands) pursuant to only Section 4 of the Wild Horse Act, and in the process disregarded the mandatory prerequisites Congress imposed in Section 3 of the Act before any wild horse may be removed from public lands. In addition, BLM’s new decision will once again reduce these wild horse populations far below the binding appropriate management levels (“AMLs”) that are set forth in governing resource management plans (“RMPs”) as a result of formal decisionmaking processes pursuant to the Federal Land Policy and Management Act (“FLPMA”), 43 U.S.C. §§ 1701-1787, subject to extensive public involvement. Therefore, under Petitioners’ view of the law—again, to be decided by the Court of Appeals in the pending case on the same issue—Federal Respondents’ actions are once again violating the Wild Horse Act, FLPMA, and the binding RMPs that must be adhered to unless and until BLM completes a formal RMP revision process either modifying the boundaries of the HMAs or reducing the AMLs that apply to the public lands of these HMAs. In addition, despite this Court’s previous holding under the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321-4370m, that BLM must consider and analyze reasonable alternatives involving the return of at least some wild horses to the solid public land blocks of these HMAs located outside the Checkerboard, see Am. Wild Horse Preservation Campaign v. Jewell, No. 2:14-cv-152, 2015 WL 11070090, at *9-11 (D. Wyo. Mar. 3, 2015), BLM has again failed to analyze any such alternatives with respect to its 2016 decision. Thus, by eliminating this alternative from evaluation—and relying on the mistaken premise that this approach would leave horses on the Checkerboard’s private lands—BLM circumvented this Court’s prior NEPA ruling, ignored public comments specifically requesting consideration of this reasonable and

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obvious alternative to the proposed action, and acted arbitrarily, capriciously, and in violation of NEPA and its implementing regulations. Accordingly, as demonstrated in the accompanying memorandum, Petitioners have established: (1) a strong likelihood of success on the merits of their claims, or at minimum that there exist serious questions going to the merits, (2) that Petitioners will be irreparably harmed absent relief from this Court, (3) the equities favor granting the requested injunction, and (4) an injunction is in the public interest. In support of this motion, Petitioners rely on the accompanying memorandum, the declarations of Petitioners Carol Walker and Suzanne Roy, Exhibits A-F, and certain exhibits previously filed in this Court in American Wild Horse Preservation Campaign v. Jewell, No. 2:14-cv-152 (D. Wyo.). BLM has indicated that it will commence this roundup on October 18, 2016. Indeed, Federal Respondents are unwilling to delay implementation of the challenged decision long enough to facilitate production of the Administrative Record, expedited summary judgment briefing, and resolution of Petitioners’ claims on the merits. Thus, Petitioners respectfully request that, at minimum, the Court temporarily enjoin Federal Respondents from removing any wild horses from public lands of the Wyoming Checkerboard until the Tenth Circuit issues its ruling in Appeal No. 15-8033. The parties have agreed upon a briefing schedule for this motion that would allow the Court to hear the matter and issue a ruling before October 18, 2016, see ECF No. 5, which the Court has now approved with certain modifications, see ECF No. 6.

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Respectfully submitted, __/s/_____________________ William S. Eubanks II (D.C. Bar No. 987036) (admitted pro hac vice) MEYER GLITZENSTEIN & EUBANKS LLP 245 Cajetan Street Fort Collins, CO 80524 (970) 703-6060 / (202) 588-5049 (fax) [email protected] __/s/_____________________ William N. Lawton (Oregon Bar No. 143685) (admitted pro hac vice) MEYER GLITZENSTEIN & EUBANKS LLP 4115 Wisconsin Ave, NW, Suite 210 Washington DC, 20016 (202) 588-5206 / (202) 588-5049 (fax) [email protected] __/s/____________________ Timothy Kingston (WY Bar No. 5-2476) LAW OFFICE OF TIM KINGSTON, LLC 620 East 27th Cheyenne, WY 82001 (307) 638-8885 / (307) 637-4850 (fax) Counsel for Petitioners

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