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No. 15-8033 IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT AMERICAN WILD HORSE PRESERVATION CAMPAIGN, et al., Petitioners-Appellants, v. SALLY JEWELL, Secretary of the United States Department of the Interior, et al., Respondents-Appellees, and ROCK SPRINGS GRAZING ASSOCIATION and STATE OF WYOMING, Respondents-Intervenors-Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING IN CASE 2:14-CV-00152-NDF (HON. NANCY D. FREUDENTHAL) RESPONSE BRIEF FOR APPELLEE STATE OF WYOMING Erik E. Petersen Michael J. McGrady Wyoming Office of Attorney General 2320 Capitol Avenue Cheyenne, WY 82002 (307) 777-6946 phone (307) 777-3542 fax
[email protected] [email protected] Counsel for State of Wyoming Oral Argument Requested
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TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................... iii GLOSSARY............................................................................................................ vii STATEMENT OF RELATED CASES ................................................................. viii STATEMENT OF JURISDICTION.......................................................................... 1 STATEMENT OF ISSUES ....................................................................................... 2 INTRODUCTION ..................................................................................................... 3 STATEMENT OF THE CASE .................................................................................. 4 I.
The Wild Horse Act ......................................................................................... 4 A.
The 1971 Wild Horse Act and the 1978 Amendments ......................... 4
B.
Section 3 of the Wild Horse Act ........................................................... 5
C.
Section 4 of the Wild Horse Act ........................................................... 7
II.
The Wyoming Checkerboard........................................................................... 9
III.
Historical Management on the Wyoming Checkerboard .............................. 10
IV.
Recent Developments with Management of the Checkerboard .................... 11
V.
The Litigation Underlying this Appeal .......................................................... 13
VI.
The Rulings Presented for Review ................................................................ 15
SUMMARY OF ARGUMENT ............................................................................... 16 ARGUMENT ........................................................................................................... 18 I.
Standard of Review........................................................................................ 18
II.
The Bureau properly exercised its authority under Section 4 of the Wild Horse Act .................................................................................... 19 i
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A.
B.
III.
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The plain language of the Wild Horse Act supports the Bureau’s gather decision ............................................................... 20 1.
The plain language of the Wild Horse Act ............................... 20
2.
Section 3 of the Wild Horse Act cannot be read in isolation ................................................................................. 22
3.
Section 4 authorizes the Bureau to gather on public land in limited circumstances ........................................................... 23
4.
Upholding the District Court’s decision presents no risk of a circuit split ............................................................. 26
The Bureau’s interpretation of the Wild Horse Act is entitled to deference ............................................................................ 27
FLPMA does not apply to the Bureau’s actions under Section 4 of the Wild Horse Act .................................................................................... 32
CONCLUSION ........................................................................................................ 34 STATEMENT ON ORAL ARGUMENT ............................................................... 35 CERTIFICATE OF COMPLIANCE ....................................................................... 36 CERTIFICATES OF SERVICE, DIGITAL SUBMISSIONS AND PRIVACY REDACTIONS ............................................................................ 37
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TABLE OF AUTHORITIES CASES Am. Horse Prot. Ass’n, Inc. v. Watt, 694 F.2d 1310 (D.C. Cir. 1982) ............................................................................... 22 Bosworth v. Utah Envtl. Cong., 443 F.3d 732 (10th Cir. 2006) ................................................................................. 28 Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) ............................................................................... 19-20, 27, 32 Corley v. United States, 556 U.S. 303 (2009) ................................................................................................. 23 Fallini v. Hodel, 783 F.2d 1343 (9th Cir. 1986) ........................................................................... 26-27 Fund for Animals v. BLM, 460 F.3d 13 (D.C. Cir. 2006) ..................................................................................... 6 In Def. of Animals v. U.S. Dep’t of Interior, 751 F.3d 1054 (9th Cir. 2014) ................................................................................ 22 Jewell v. United States, 749 F.3d 1295 (10th Cir. 2014) ............................................................................... 21 Lamb v. Thompson, 265 F.3d 1038 (10th Cir. 2001) ............................................................................... 19 Marsh v. Or. Natural Res. Council, 490 U.S. 360 (1989) ................................................................................................. 19 Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) ............................................................................................. 18-19 Mountain States Legal Found. v. Hodel, 799 F.2d 1423 (10th Cir. 1986) ................................................................................. 8 iii
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New Mexico ex rel. Richardson v. BLM, 565 F.3d 683 (10th Cir. 2009) ................................................................................. 31 Ocean Advocates v. U.S. Army Corps of Eng’rs, 402 F.3d 846 (9th Cir. 2004) ................................................................................... 19 Olenhouse v. Commodity Credit Corp., 42 F.3d 1560 (10th Cir. 1994) ................................................................................. 18 Pub. Lands Council v. Babbitt, 167 F.3d 1287 (10th Cir. 1999) ............................................................................... 19 Rives v. I.C.C., 934 F.2d 1171 (10th Cir. 1991) ............................................................................... 27 Roaring Springs Assocs. v. Andrus, 471 F. Supp. 522 (D. Ore. 1978)................................................................................ 8 Rock Springs Grazing Ass’n v. Salazar, 935 F. Supp. 2d 1179 (D. Wyo. 2013) ................................................. 4, 9, 11-12, 29 Sunshine Haven Nursing Operations, LLC v. Dep’t of Health & Human Serv., 742 F.3d 1239 (10th Cir. 2014) .........................................................................23, 25 The Wilderness Soc’y v. Kane County, Utah, 632 F.3d 1162 (10th Cir. 2011) ............................................................................... 28 United States v. Power Eng’g Co., 303 F.3d 1232 (10th Cir. 2002) ............................................................................... 23
STATUTES 5 U.S.C. § 706(2)(A)................................................................................................ 18 16 U.S.C. §§ 1331-1340 ............................................................................................ 4 16 U.S.C. § 1333 ................................................................................... vii, 4-5, 22-23 16 U.S.C. § 1333(a) ................................................................................................... 5 iv
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16 U.S.C. § 1333(b) ................................................................................................... 6 16 U.S.C. § 1333(b)(2)(iv) ....................................................................................... 33 16 U.S.C. § 1334 ...................................................................... 5, 7, 21, 25-26, 31, 33 16 U.S.C. § 1338(a)(3) ............................................................................................... 8 28 U.S.C. § 1291 ........................................................................................................ 1 28 U.S.C. § 1331 ........................................................................................................ 1 42 U.S.C. §§ 4321-4370 .......................................................................................... 15 43 U.S.C. §§ 1061-1066 ............................................................................................ 9 43 U.S.C. §§ 1701-1787 ............................................................................................ 6 LEGISLATIVE HISTORY H.R. Rep. No. 95-1122 (1978) ............................................................................... 4-5 CODE OF FEDERAL REGULATIONS 43 C.F.R. § 4770.1 ..................................................................................................... 8 OTHER AUTHORITIES Checkerboard Wild Horses Arrive at the Rock Springs Wild Horse Holding Facility, BLM.GOV, http://www.blm.gov/wy/st/en/info/news_room/2014/ september/25rsfo-hfacility.html (last visited Jan. 8, 2016) ..................................... 14 Myths & Facts, BLM.GOV, http://www.blm.gov/wo/st/en/prog/whbprogram/ history_and_facts/myths_and_facts.html (last visited Jan. 9, 2016) ....................... 31 Public Rangelands Improvement Act of 1978, Pub. L. 95-514, 92 Stat. 1803 (Oct. 25, 1978) ..................................................... 5, 31
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Wild Horse & Burro Quick Facts, BLM.GOV, http://www.blm.gov/wo/st/en/ prog/whbprogram/history_and_facts/quick_facts.html (last visited Jan. 9, 2016) ......................................................................................... 32 Wild Horses and Burros Management Handbook, BLM.GOV, http://www.blm.gov/style/medialib/blm/wo/Information_Resources_ Management/policy/blm_handbook.Par.11148.File.dat/H-4700-1.pdf (last visited Jan. 20, 2016) ......................................................................................... 6
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GLOSSARY AML
Appropriate Management Level
FLPMA
Federal Land Policy and Management Act
HMA
Herd Management Area
NEPA
National Environmental Policy Act
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STATEMENT OF RELATED CASES In accordance with Tenth Circuit Rule 28.2(C)(1), the State of Wyoming represents that there are no pending cases related to this appeal. This Court previously considered a Federal Rule of Appellate Procedure 8(a) emergency motion for an injunction pending appeal from Petitioners-Appellants American Wild Horse Preservation Campaign, The Cloud Foundation, Return to Freedom, Carol Walker, and Kimerlee Curyl (collectively, the Campaign). The Court denied that motion. (Order in Case No. 14-8063 (Sept. 10, 2014) (Doc. 01019307885)). The Campaign then dismissed its appeal, and the district court litigation proceeded. The pending appeal in Wyoming v. U.S. Dep’t of the Interior, Case No. 158041, also involves the management of wild horses in Wyoming, but it addresses the Bureau of Land Management’s alleged failure to remove excess wild horses from seven herd management areas in Wyoming under the agency’s authority and duties in 16 U.S.C. § 1333. Many of the same parties to this case also are in involved in Wyoming v. U.S. Dep’t of the Interior.
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STATEMENT OF JURISDICTION The district court had jurisdiction over this matter pursuant to 28 U.S.C. § 1331 because the Campaign challenged agency action under a number of federal statutes. This Court, however, does not possess jurisdiction over the Campaign’s appeal. As the State explained in the jurisdictional brief requested by this Court: (1) the district court’s March 3, 2015 order is not a final decision under 28 U.S.C. § 1291 because the district court has not resolved the instant litigation in its entirety; and (2) the district court’s May 13, 2015 order does not satisfy the requirements of Rule 54(b) because the district court declined to conduct the full analysis that Rule 54(b) requires. (State’s Jurisdictional Brief (July 1, 2015) (Doc. 01019453374)). Accordingly, and for the reasons more fully explained in the State’s prior filing with this Court, Wyoming respectfully requests that this Court dismiss the pending appeal for lack of jurisdiction. (Id.).
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STATEMENT OF ISSUES 1.
Section 4 of the Wild Horse Act requires the Secretary to promptly remove wild horses that stray onto private land. The Secretary removed, from both public and private land, a number of wild horses that routinely stray onto private land in the Wyoming checkerboard. Was the Secretary’s removal of these “straying” horses permissible under Section 4 of the Wild Horse Act?
2.
Under the Federal Land Policy and Management Act (FLPMA), the Secretary establishes a population range for each wild horse herd management area. These population ranges are not binding upon the Secretary when she removes wild horses that stray onto private land under Section 4 of the Wild Horse Act. Did the Secretary violate FLPMA by removing “straying” horses from the Wyoming checkerboard without adhering to the population ranges?
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INTRODUCTION The Campaign contends that Section 4 of the Wild Horse Act “plainly does not confer [the Bureau] any authority to permanently remove wild horses from public lands (whether or not adjacent to private lands).” (Campaign Br. at 43) (emphasis in original). If the Court were to adopt this line of reasoning, the Court would deny all private landowners in the Wyoming checkerboard the unambiguous rights that Congress bestowed upon them when it enacted the Wild Horse Act. That is not the result that Congress intended. The plain language of the Wild Horse Act supports the Bureau’s decision to conduct the 2014 checkerboard gather. And even if this Court does not agree that the Wild Horse Act is unambiguous, the Bureau interpreted the Act in a way that is entitled to considerable deference. The Wild Horse Act protects the rights of private landowners with the same vigor as the wild horses themselves. Faced with this statutory reality and an admittedly difficult situation, the Bureau made a decision that accomplishes both goals. This Court should uphold that decision.
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STATEMENT OF THE CASE I.
The Wild Horse Act A.
The 1971 Wild Horse Act and the 1978 Amendments
In 1971, in response to concerns that wild horses were “fast disappearing from the American scene,” Congress passed the Wild Free-Roaming Horses and Burros Act of 1971 (Wild Horse Act), 16 U.S.C. §§ 1331-1340. The Wild Horse Act protects wild horses from “capture, branding, harassment, or death” and imposes a number of restrictions on the public’s interaction with wild horses, reserving all responsibility for the management of wild horses to the Secretary of the Interior and her delegates.1 See id. Just a few years after enactment of the Wild Horse Act, however, it became clear that the Act was not functioning as intended, and that “action [was] needed to prevent a successful program from exceeding its goals and causing animal habitat destruction.” H.R. Rep. No. 95-1122, at 23 (1978). Congress recognized that “populations of horses [] have been so well protected by the law that their numbers now exceed the carrying capacity of the range. Excess numbers of horses [] pose a
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The Wild Horse Act directs the Secretary of the Interior to manage wild horses and obligates her to perform certain acts. See generally 16 U.S.C. § 1333. Since the Bureau “administers the Wild Horse Act as the Secretary’s delegate,” this brief will hereinafter refer to the Bureau as the responsible entity. See Rock Springs Grazing Ass’n v. Salazar, 935 F. Supp. 2d 1179, 1181 (D. Wyo. 2013). 4
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threat to wildlife, livestock, the improvement of range conditions, and ultimately, to their own survival.” Id. at 21. In response to these concerns, Congress enacted amendments to the Wild Horse Act that provided the Bureau with greater authority and more responsibility to manage and remove wild horses from the range. See Public Rangelands Improvement Act of 1978, Pub. L. 95-514, 92 Stat. 1803, 180810 (Oct. 25, 1978). The Bureau has two separate and distinct responsibilities with regard to the removal of wild horses under the Wild Horse Act, usually referred to as the Bureau’s “Section 3” and “Section 4” obligations. 16 U.S.C. §§ 1333, 1334. Here, the Bureau determined that the only way that the agency could meaningfully conduct the 2014 checkerboard gather was to gather wild horses from both public and private land in the Wyoming checkerboard via the agency’s Section 4 authority. (Aplt. App. 179). B.
Section 3 of the Wild Horse Act
Section 3 of the Wild Horse Act requires the Bureau to “achieve and maintain a thriving natural ecological balance on the public lands.” 16 U.S.C. § 1333(a). In order to fulfill this mandate, Section 3 of the Act directs the Bureau to: (1) maintain a current inventory of wild horses on public lands; (2) establish “appropriate management levels” (AMLs) on defined areas of the public land; and (3) ensure that wild horse populations on public land remain below the high end of the AML
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through sterilization, fertility control, and the removal of excess wild horses from the range. 16 U.S.C. § 1333(b). In practice, the Bureau establishes an AML for each wild horse “herd management area” (HMA) that the Bureau oversees, and the Bureau determines and finalizes an AML for each HMA when the agency develops “range management plans” in accordance with the requirements of FLPMA, 43 U.S.C. §§ 1701-1787. Fund for Animals v. BLM, 460 F.3d 13, 15 (D.C. Cir. 2006). The Bureau expresses AMLs as a range – for example, 600 to 800 wild horses might be the AML range for a hypothetical HMA.2 Typically, although not exclusively, the Bureau will gather wild horses from an HMA when the wild horse population in that HMA exceeds the high end of the AML. See id. Similarly, once horses have been gathered, the Bureau will typically leave a residual population of wild horses at or around the low end of the AML, thereby providing “breathing room” for the herd to once again grow towards high AML, at which point another gather will be necessary. See id. In this way, the Bureau attempts to meet its obligations under the Act to manage wild horses on public lands.
See “Wild Horses and Burros Management Handbook,” at 17-18, available at http://www.blm.gov/style/medialib/blm/wo/Information_Resources_Management /policy/blm_handbook.Par.11148.File.dat/H-4700-1.pdf, at *17 (last visited Jan. 20, 2016). 2
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Section 4 of the Wild Horse Act
Section 4 of the Wild Horse Act stands in stark contrast to Section 3. Section 4 states: If wild free-roaming horses 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. In no event shall such wild free-roaming horses and burros be destroyed except by the agents of the Secretary. Nothing in this section shall be construed to prohibit a private landowner from maintaining wild free-roaming horses or burros on his private lands, or lands leased from the Government, if he does so in a manner that protects them from harassment, and if the animals were not willfully removed or enticed from the public lands. Any individuals who maintain such wild free-roaming horses or burros on their private lands or lands leased from the Government shall notify the appropriate agent of the Secretary and supply him with a reasonable approximation of the number of animals so maintained. 16 U.S.C. § 1334. The differences between the two sections are readily apparent. First, Section 4 of the Act applies to private rather than public land. Id. Second, as opposed to the Bureau’s affirmative Section 3 obligation to monitor wild horse populations on public lands and remove any excess wild horses on its own initiative, Section 4 is triggered when the Bureau receives a complaint from a private landowner that wild horses have strayed off of public lands and onto private land. Id. If the Bureau receives such a complaint, the Secretary must remove wild horses that stray onto private lands. See id.
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Removal by the Bureau under Section 4 is critically important to private landowners. The Wild Horse Act and its implementing regulations categorically forbid anyone except the Bureau from attempting to gather or catch wild horses, including unauthorized chasing, pursuing, herding, roping, and other acts that could be considered harassment. See 16 U.S.C. § 1338(a)(3); 43 C.F.R. § 4770.1. Congress designed the Wild Horse Act so that the Bureau has “complete control of the horses” and is the only entity that can manage or control the impact of the ever-increasing number of horses on the range. Mountain States Legal Found. v. Hodel, 799 F.2d 1423, 1432 (10th Cir. 1986) (vacated on other grounds). As a result, private landowners are at the mercy of the Bureau honoring its statutory commitment under Section 4 of the Act in order to prevent significant damage from wild horses to private lands. (See Aplt. App. 96). The Bureau’s duty to remove wild horses that stray onto private land benefits both private landowners and the public. Roaring Springs Assocs. v. Andrus, 471 F. Supp. 522, 526 (D. Ore. 1978). A private landowner receives the benefit of “having the animals removed from his land without cost[.]” 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
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removal mechanism satisfies two objectives, it protects the rights of private landowners and the wild horses themselves. II.
The Wyoming Checkerboard The Wyoming checkerboard is a vast corridor of land across the southern
portion of the State that contains approximately two million acres of intermingled state, private, and federal land that is a historical remnant from the construction of the transcontinental railroad in the 1800s. Rock Springs Grazing Ass’n, 935 F. Supp. 2d at 1182. 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.; see also Campaign’s Br. at 16 (showing map of checkerboard lands in the relevant HMAs). Because the Wyoming checkerboard is not fenced, wild horses roam freely from public to private lands throughout this area. Id. Fencing the private lands in this area would violate the Unlawful Inclosures Act, 43 U.S.C. §§ 10611066, disrupt wildlife movement and migration routes, and increase predation of birds, particularly the ecologically-sensitive sage grouse. (Aplt. App. 118-119). The Bureau manages sixteen HMAs in the State of Wyoming, but only three are relevant here: Adobe Town, Salt Wells Creek, and Great Divide Basin. (See Aplt. 9
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App. 81 n.3). “Roughly 70% (1,695,517 acres) of these three HMAs is public land, and 30% (731,703 acres) is private land. The majority of the private land falls within the Wyoming [c]heckerboard.” (Id.). Respondent-Appellee Rock Springs Grazing Association owns and leases private land in parts of these HMAs and also holds grazing permits on public land in these HMAs – in both instances including portions of the checkerboard. (See generally Aplt. App. 76-102). Because the checkerboard lands are not fenced, wild horses move freely through this area, crossing back and forth between public and private land on a near continuous basis. (Aplt. App. 73). III.
Historical Management on the Wyoming Checkerboard Management of wild horses within the Wyoming checkerboard lands has been
a source of controversy since the late 1970s. (See, e.g., Aplt. App. 119). In the early days of the Act’s existence, the Grazing Association and the Bureau reached an agreement whereby the Grazing Association agreed to tolerate five-hundred wild horses within its private checkerboard lands “once [the Bureau] 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,” which contains the three HMAs at issue here. (Id.). However, the Bureau did not maintain wild horse numbers as promised. In late 1979, the Grazing Association sued the Bureau in order to compel the removal of wild horses from its private lands within the checkerboard. (Aplt. App. 119). Given the Bureau’s mandatory duty under Section 4, the district court directed the Bureau 10
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to remove all wild horses from the Grazing Association’s checkerboard lands, except the number that the Grazing Association consented to leave in the area. (Id.). The Bureau subsequently gathered wild horses to meet herd management objectives. Rock Springs Grazing Ass’n, 935 F. Supp. 2d at 1183. Despite the Bureau’s efforts, the wild horse population within the Grazing Association’s private checkerboard lands continued to exceed the agreed-upon fivehundred horse limit. Id. at 1184. As a result, in October 2010, the Grazing Association withdrew its consent to the five-hundred horse limit and requested the removal of all wild horses from its lands. Id. Despite the Grazing Association’s request and the requirements of Section 4 of the Act, the Bureau did not remove the wild horses. Id. at 1184-85. IV.
Recent Developments with Management of the Checkerboard In July 2011, the Grazing Association filed a complaint against the Bureau in federal district court to compel the removal of all wild horses from its checkerboard lands under the Wild Horse Act. Id. at 1185. The Grazing Association and the Bureau eventually agreed to settle the dispute and sought judicial approval of a proposed consent decree. Id. at 1180. A number of wild horse advocates, who had previously intervened in the case, opposed the proposed consent decree. Id. They argued that such a gather was not possible in the checkerboard because the Bureau would not be able to differentiate between wild horses located on private versus public land. Id. at 11
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1187. In other words, the wild horse advocates argued that the Bureau would need to remove wild horses from both the public and private portions of the checkerboard, regardless of where the Bureau found them at the time of the gather. See id. They alleged that, because all wild horses in the checkerboard stray from public to private land with regularity, it would be impossible to determine which horses had strayed and when. See id. Before approving the consent decree, the district court acknowledged, but ultimately dismissed, the wild horse advocates’ concerns with the consent decree: While the Court fully appreciates the land management challenges presented by checkerboard ownership, those problems do not deprive RSGA of its rights as a private landowner under Section 4 of the Wild Horses Act, nor the deference due the [Bureau] as the agency with substantial expertise in the management of the HMAs. The [Bureau] is statutorily obligated to manage wild horses in this area consistent with RSGA’s Section 4 legal rights notwithstanding the [resource management plan] herd management objectives for federal land, or the particular management challenges presented. Id. at 1187-88 (footnote omitted). Put another way, the district court found that the Bureau was not subject to the AML limitations in the relevant HMAs in light of the Grazing Association’s request for the Bureau to remove wild horses under Section 4 of the Act. See id. On April 3, 2013, the court upheld the consent decree as “a fair, reasonable, equitable and adequate settlement of [the Grazing Association’s] claims against the [Bureau], and which does not on its face violate the law or public policy.” Id. at 1191. 12
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The Bureau subsequently conducted a wild horse gather in 2013, but, for reasons that are unclear, the Bureau left an amount of wild horses on the range approximately at the low end of AML for the HMAs in the checkerboard lands. (Aplt. App. 83). The Grazing Association objected to the Bureau’s failure to gather and remove all of the wild horses as agreed in the consent decree that the district court approved. (See Aplt. App. 84). The Bureau then agreed to return to the area to permanently remove all wild horses from the relevant portions of the checkerboard. (Id.). The Bureau also announced that, because this gather was intended to ensure compliance with both Section 4 of the Act and the consent decree, the gather would reduce the wild horse population below AML in the three HMAs at issue. (Id.). As the Bureau noted, “due to the unique pattern of land ownership [in the checkerboard,] it is practicably infeasible for the [Bureau] to meet its obligations under Section 4 of the [Wild Horse Act] while removing wild horses solely from the private lands sections of the checkerboard.” (Aplt. App. 179). V.
The Litigation Underlying this Appeal On August 1, 2014, the Campaign filed a petition for review of the Bureau’s
decision to conduct the gather and asserted that the district court should grant a preliminary injunction to enjoin the Bureau from removing wild horses from checkerboard lands within the affected herd management areas. (See Aplt. App. 12). On August 28, 2014, the district court denied the Campaign’s motion for emergency 13
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relief. (See Aplt. App. 80). The court held that the Campaign was not likely to succeed on the merits of its claims because the proposed removal of wild horses from the checkerboard lands was consistent with the Wild Horse Act. (See Aplt. App. 80). The Campaign then sought an emergency injunction from this Court, which the Court denied. (Campaign Br. at 30). The Campaign then dismissed its appeal, and the district court litigation proceeded. (See id.). After both the district court and this Court denied the Campaign’s motions seeking emergency injunctive relief, the Bureau carried out the proposed gather and removal operation. From September 15, 2014, to October 9, 2014, the Bureau removed 1,263 wild horses from the checkerboard portions of the affected HMAs. (Aplt. App. 85). The wild horses that the Bureau removed from the checkerboard were sent to various holding facilities, where they were made available for adoption.3 As the Bureau envisioned before the gather, the post-roundup wild horse population in the HMAs was below the established AMLs. (See Aplt. App. 80). On March 3, 2015, the district court issued an opinion on the merits that rejected the Campaign’s claims under the Wild Horse Act and FLPMA. (Aplt. App. 76). In particular, the district court recognized that removing wild horses solely from the Grazing Association’s private land within the checkerboard would not meet the
See “Checkerboard Wild Horses Arrive at the Rock Springs Wild Horse Holding Facility,” available at http://www.blm.gov/wy/st/en/info/news_room/2014/ september/25rsfo-hfacility.html (last visited Jan. 8, 2016). 3
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requirements of the Wild Horse Act. (Aplt. App. 94). The court explained that the wild horses on the public portions of the checkerboard “would simply stray back to [the Grazing Association’s portion of the] checkerboard, triggering another request, another removal, and so on. The horses would be managed intensively, contrary to Section 3, and not removed, contrary to Section 4. Such an outcome is not required by the [Act].” (Aplt. App. 94). The court further explained that “this Court won’t sanction an outcome that repeals [the Grazing Association’s] Section 4 rights and imposes a never-ending duty on [the Bureau] to move horses when its clear removal duty is to protect private landowners and their land from wild horses that stray.” (Aplt. App. 94). The district court also rejected the Campaign’s FLPMA arguments, essentially holding that the Bureau is not beholden to the AMLs established under FLPMA when faced with a demand by a private landowner under Section 4 of the Wild Horse Act. (Aplt. App. 97-98). Lastly, the district court held that the Bureau failed to adequately comply with the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4370, and ordered a remand that requires the Bureau to more fully analyze the gather’s environmental impacts. (Id.). This appeal followed. VI.
The Rulings Presented for Review The Campaign’s NEPA claim is not at issue in this appeal because the district court remanded that issue to the Bureau for further action consistent with the statute. 15
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(Aplt. App. 102). What remains are the Campaign’s allegations that the Bureau violated the Wild Horse Act and FLPMA when the Bureau decided to gather wild horses from both public and private land in the checkerboard under the agency’s Section 4 authority. (Campaign Br. at 4). Specifically, the Campaign alleges that the Wild Horse Act requires the Bureau to act under the agency’s authority under Section 3 and Section 4 of the Wild Horse Act before conducting a gather of wild horses located on both public and private land in the Wyoming checkerboard. (Campaign Br. at 39-42). The Campaign also alleges that the Bureau’s 2014 gather violated FLPMA because, at the completion of the gather, the relevant wild horse population was below the low AML. (Campaign Br. at 60-63). The district court rejected these arguments, and the Campaign seeks a reversal from this Court. SUMMARY OF ARGUMENT The Campaign contends that Section 4 of the Wild Horse Act “plainly does not confer [the Bureau] any authority to permanently remove wild horses from public lands (whether or not adjacent to private lands).” (Campaign Br. at 43) (emphasis in original). If this Court were to adopt this line of reasoning, it would then deny all private landowners in the Wyoming checkerboard the unambiguous
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rights bestowed upon them when Congress passed the Act. Such a result is impermissible under settled law. The plain language of the Wild Horse Act supports the Bureau’s decision to conduct the 2014 checkerboard gather. The Bureau must remove wild horses that stray onto private land under Section 4 of the Act. In the Wyoming checkerboard, wild horses stray from public to private land on a regular and near continuous basis. The Bureau correctly determined that it had no choice but to remove wild horses throughout the Wyoming checkerboard, regardless of where the wild horses stood at the time of the gather, in order to provide meaningful relief to the private landowners. To do otherwise would be utterly ineffective and would not provide private landowners in the checkerboard with the relief to which they are statutorily entitled. Even if this Court does not agree that the Act is unambiguous on this point, the Bureau interpreted the Act in this fashion, and that interpretation is entitled to considerable deference. While the Wyoming checkerboard presents thorny issues for federal land managers, the Bureau must manage the situation. Congress issued that directive, and the directive is clear. The Bureau must afford wild horses certain protections, while also maintaining a thriving ecological balance on the range, and the Bureau must protect the rights of private landowners. The Campaign asks this Court to subordinate the rights of private landowners to the Campaign’s desire for there to be 17
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as many wild horses on the range as possible, regardless of the needs of the range or other species, let alone the rights of private property owners. This is not what Congress intended. Under the Wild Horse Act, the rights of private landowners are protected with the same vigor as the wild horses themselves. Faced with this statutory reality and an admittedly difficult situation, the Bureau made a decision that accomplishes both goals. The district court found that the Bureau acted correctly, and rightly so. This Court should uphold both the district court’s decision as well as the Bureau’s. ARGUMENT I.
Standard of Review The Court reviews the 2014 gather decision under the judicial review
provisions of the Administrative Procedure 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. Ass’n 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). 18
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A court should uphold an agency decision “of less than ideal clarity if the agency’s path may reasonably be discerned.” Id. (quotations omitted). 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); Ocean Advocates v. U.S. Army Corps of Eng’rs, 402 F.3d 846, 858 (9th Cir. 2004) (citation omitted). II.
The Bureau properly exercised its authority under Section 4 of the Wild Horse Act. When a court reviews an agency’s construction of a statute it administers, the
specificity of the statute shapes the court’s 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. at 844. Rather, the court then asks “whether the agency’s answer is based on a permissible construction of the statute.” Id. This test is frequently referred to as the Chevron two-step analysis. E.g., Lamb v. Thompson, 265 F.3d 1038, 1050 (10th Cir. 2001).
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The Campaign asserts that the plain language of the Wild Horse Act shows that the Bureau’s decision to conduct the 2014 gather was improper under Chevron Step One. (Campaign Br. at 39-48). In the alternative, the Campaign argues that the Bureau’s interpretation of the Wild Horse Act should be rejected under Chevron Step Two. (Campaign Br. at 49-60). The Campaign is incorrect on both fronts. A.
The plain language of the Wild Horse Act supports the Bureau’s gather decision.
The Campaign alleges that the plain language of the Wild Horse Act shows that the Bureau cannot gather wild horses from public land under the agency’s Section 4 authority. (Campaign Br. at 39-48). The Campaign is mistaken. The plain language of Wild Horse Act, read as a whole, supports the Bureau’s decision to gather wild horses from public land under the agency’s Section 4 authority. And “that is the end of the matter.” Chevron, 467 U.S. at 842. 1.
The plain language of the Wild Horse Act.
At the outset, this Court must ask whether Congress has directly spoken to the precise question at issue. Chevron, 467 U.S. at 842-43. “If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect.” Id. at 843 n.9. When Congress passed the Wild Horse Act, it recognized that, given the mixture of public and private land in the West, wild horses would inevitably “stray 20
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from public land into privately owned land.” See 16 U.S.C. § 1334. For this reason, Congress included Section 4 in the Act. Section 4 requires the Bureau to remove these straying wild horses: “If wild free-roaming horses or burros stray from public lands into 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.” Id. (emphasis added). These words are not ambiguous. “It is a basic canon of statutory construction that use of the word ‘shall’ indicates a mandatory intent.” Jewell v. United States, 749 F.3d 1295, 1298 (10th Cir. 2014) (citation omitted). Accordingly, Congress’s intent is easily found in the plain language of the Wild Horse Act. Congress intended for the Bureau to promptly remove wild horses from private land at the behest of private landowners to prevent undue harm to their land. See 16 U.S.C. § 1334. A plain reading of Section 4, then, both authorizes and requires the Bureau to remove “straying” horses in a way that provides meaningful relief to private landowners. Prior to the gather, the Bureau determined that the only way to provide meaningful relief to private landowners in the Wyoming checkerboard was to gather wild horses from both public and private land. (Aplt. App. 179). The Bureau’s reasoning is easily understood: (1) wild horses in the Wyoming checkerboard routinely stray between public and private land; (2) the Bureau must remove wild horses that stray onto private land under Section 4; (3) if the Bureau only removes 21
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wild horses that are physically present on private land during the Bureau’s gather, the wild horses located on the interspersed public land will soon stray onto private land; and (4) this will not provide private landowners with the meaningful relief to which they are entitled. (See id.). Accordingly, Section 4 must authorize the gather of wild horses from both public and private land in the Wyoming checkerboard. (See Aplt. App. 94). To say otherwise is to deny private landowners in the Wyoming checkerboard meaningful relief. 2.
Section 3 of the Wild Horse Act cannot be read in isolation.
The Campaign initially attempts to support their argument by asking the Court to read Section 3 of the Wild Horse Act in isolation. (Campaign Br. at 39-42). Read in isolation, the Bureau’s rights and obligations seem clear under Section 3 of the Act – the Bureau must remove excess horses from public lands to maintain a thriving ecological balance.4 16 U.S.C. § 1333. And if all lands were public, the way forward
4
The Campaign also asserts that, before removing excess horses, the Bureau must make a formal excess determination. (Campaign Br. at 40). This is incorrect. In In Defense of Animals v. United States Department of Interior, the Ninth Circuit Court of Appeals held that the Bureau can rely on the AML as a trigger for it to immediately address population imbalance by removing wild horses. In Def. of Animals v. U.S. Dep’t of Interior, 751 F.3d 1054, 1063-64 (9th Cir. 2014). In American Horse Protection Association, Inc. v. Watt, the United States Court of Appeals for the D.C. Circuit agreed, holding 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 [Bureau’s] findings of wild horse overpopulations should not be overturned quickly on the ground that they are predicated on insufficient information.” Am. Horse Prot. Ass’n, Inc. v. Watt, 694 F.2d 1310, 1318 (D.C. Cir. 1982) (emphasis in original). 22
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would always be clear – wild horses must remain on the range until an overpopulation exists, and once an overpopulation exists, the excess horses must be removed under the Bureau’s Section 3 authority. However, Section 3 offers no path forward for managing wild horses that stray onto private land. See 16 U.S.C. § 1333. Section 3 must then be read in the context of the entire Act to properly understand how it operates. E.g., Corley v. United States, 556 U.S. 303, 314 n.5 (2009) (the “cardinal rule [is] that a statute is to be read as a whole”) (citation omitted). 3.
Section 4 authorizes the Bureau to gather on public land in limited circumstances.
The Campaign concludes that Section 4 “plainly does not confer [the Bureau] any authority to permanently remove wild horses from public lands[.]” (Campaign Br. at 43 (emphasis in original)). In so doing, the Campaign reads the Act in a way that: (1) renders Section 4 meaningless to private landowners in the checkerboard, and (2) produces an absurd result. This Court does not have that luxury. United States v. Power Eng’g 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); Sunshine Haven Nursing Operations, LLC v. Dep’t of Health & Human Serv., 742 F.3d 1239, 1250 (10th Cir. 2014) (“interpretations of a statute which would produce absurd results are to be avoided[.]”). If the Bureau cannot rely upon Section 4 to gather and remove wild horses from public land in the Wyoming checkerboard, where wild horses regularly stray 23
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in and out of public and private property, then the protections of Section 4 are meaningless to private property owners in the checkerboard. Under the Campaign’s interpretation of the Act, the Bureau would be limited to gathering wild horses on private land in the Wyoming checkerboard, despite the reality that wild horses that momentarily reside on public portions of the checkerboard at the time of the Bureau’s gather will assuredly stray onto private land after the Bureau completes its gather. The Bureau would then be required to return to the Wyoming checkerboard to gather more horses from private land. And so on. The district court correctly found this “never ending duty” to be unreasonable. (Aplt. App. 94). This scenario would require private landowners in the checkerboard to simply accept that wild horses will trample their private property, consume their forage, and otherwise disrupt their land, while the landowners wait for the Bureau to return, yet again, to gather wild horses solely from private land. The Campaign and other wild horse enthusiasts may well consider that situation ideal, but depriving the checkerboard landowners of the protections of Section 4 is not the outcome Congress intended. Put another way, the Campaign argues for a construction of the Act where private landowners within the checkerboard are refused the protections guaranteed by Congress unless the Bureau becomes omnipresent across approximately two million acres of checkerboard land. This interpretation would require the Bureau to be ever ready to remove horses that stray onto private property, but only in a 24
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relatively tight temporal window before those horses stray back onto public land. The Court should reject this absurd result. Sunshine Haven, 742 F.3d at 1250. The Bureau recognized the practical infeasibility of gathering only those wild horses that are physically present on private land at the time of the Bureau’s gather. (Aplt. App. 179). Indeed, one can extrapolate that, given the untamed and skittish nature of wild horses, it is extremely unlikely that the Campaign’s interpretation would even be workable on the ground. There is a reason why the vast majority of wild horses are gathered via the use of helicopters – it is quite difficult to get close to most wild horses on the open range. In the close confines of the checkerboard, merely approaching a wild horse located on a square-mile block of private land would almost assuredly send the horse scurrying onto, at least temporarily, an adjacent square-mile block of public land. Under the Campaign’s interpretation, the Bureau could not gather this straying horse. And the absurd vicious circle would spin on. Despite these realities, the Campaign insists that the Bureau cannot gather “straying” wild horses unless the wild horse is on private land. (Campaign’s Brief at 43). This position is misguided. Indeed, nothing in Section 4 requires the narrow construction argued for by the Campaign. After all, the Act does not require the removal of wild horses “while straying.” 16 U.S.C. § 1334. Instead, the Act requires the Bureau to remove wild horses that “stray from public lands.” Id. A wild horse 25
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need not be in the act of straying to be a horse that strays “from public land to privately owned land.” Id. And given the unique nature of the checkerboard, a wild horse that is in the checkerboard is, inevitably, a wild horse that strays. For these reasons, Section 4 unambiguously supports the Bureau’s decision to conduct the 2014 checkerboard gather. This Court should rule in the Bureau’s favor as a result. 4.
Upholding the District Court’s decision presents no risk of a circuit split.
The Campaign’s saber-rattling about an impending circuit split lacks merit. (Contra Campaign Br. at 45-46). The Ninth Circuit case upon which the Campaign relies is inapposite to the district court’s ruling that Wyoming asks this Court to affirm. See Fallini v. Hodel, 783 F.2d 1343 (9th Cir. 1986). In Fallini, the key question was whether a court could issue “a writ of mandamus and continuing mandatory injunction compelling the [Bureau] to take all necessary steps to prevent a recurrence of the straying of wild horses onto Fallini’s land.” Id. at 1344. In other words, could a court require the Bureau to stand ever ready at the borders of Fallini’s land in order to prevent straying? The Ninth Circuit held that this was an impermissible order. Id. at 1346. That is not at all the issue that the district court decided below and that this Court considers here. The Campaign’s reliance on Fallini fails as a result.
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As it happens, however, the Campaign’s decision to highlight Fallini is useful to this Court’s analysis. As discussed above, the Campaign’s construction of the Act would either deprive private landowners in the checkerboard of the rights afforded by Section 4 or require the Bureau to monitor the entire checkerboard to prevent or quickly remedy trespass. Fallini shows us that, even if a court wished to impose that onerous duty on the Bureau, it would not pass legal muster. See id. B.
The Bureau’s interpretation of the Wild Horse Act is entitled to deference.
Even if this Court is not inclined to agree that the plain language of the Wild Horse Act authorized the Bureau to conduct the 2014 gather under the agency’s Section 4 authority, this Court should still uphold the Bureau’s decision, because the Bureau’s interpretation of the Act is a “permissible construction of the statute” under Chevron Step Two. 467 U.S. at 843-44. An agency’s construction is permissible unless it is “arbitrary, capricious, or manifestly contrary to the statute.” Rives v. I.C.C., 934 F.2d 1171, 1174 (10th Cir. 1991) (citation omitted). The Bureau’s interpretation of the Act meets this reasonableness test, and the Campaign’s arguments to the contrary are unavailing. (Contra Campaign Br. at 49-60). The Bureau cleared the Chevron Step Two hurdle by providing a reasoned and rational explanation that shows that the agency based its interpretation on a thorough analysis of the Wild Horse Act and the Bureau’s experience implementing the Act. Prior to conducting the gather, the Bureau explained that the unique nature 27
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of the checkerboard created tension between Section 3 and Section 4 of the Act. (Aplt. App. 178, 190-91). While aware of this tension, the Bureau also recognized the agency’s mandatory duty under Section 4 to remove wild horses that stray onto private land. (Id.). The Bureau determined that the Wild Horse Act required the agency to conduct a gather of wild horses on both the public and private portions of the checkerboard under the Bureau’s Section 4 authority: The [Bureau] acknowledges that in discharging its duties under Section 4 of the [Act,] wild horses will also be removed [from] the public portions of the checkerboard. However, due to the unique pattern of land ownership, and as recognized in the Consent Decree, it is practically infeasible for the [Bureau] to meets its obligations under Section 4 of the [Act] while removing wild horses solely from the private lands of the checkerboard. (Aplt. App. 190-91). This interpretation of Section 4 is entitled to considerable deference. E.g., Bosworth v. Utah Envtl. Cong., 443 F.3d 732, 739 (10th Cir. 2006); see also The Wilderness Soc’y v. Kane County, Utah, 632 F.3d 1162, 1178 (10th Cir. 2011) (“[f]act is, federal law doesn’t always point harmoniously in a single direction – and when it comes to land policy this is perhaps particularly true.”). The Campaign argues that the Bureau’s construction of the Wild Horse Act “is legally impermissible because it conflicts with decades of the agency’s own practice in the [c]heckerboard.” (Campaign Br. at 52). The Campaign focuses on the fact that “this is the first time in the Bureau’s 44-year history of managing wild horses within the [c]heckerboard – or anywhere else – that the agency has ever 28
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suggested that Sections 3 and 4 are even remotely incompatible.” (Campaign Br. at 52). The Campaign’s argument is misguided. As an initial matter, the Campaign asserts that the Bureau has been able to effectively gather wild horses in the checkerboard for the past 44 years. (Campaign Br. at 52-53). But the Bureau’s management of wild horses in the checkerboard over the last 44 years has been a cornucopia of failure. The private landowners in the checkerboard have had to vigorously push the Bureau, repeatedly, over the last 44 years to obtain the relief to which they are entitled under the Act. And in most instances, they did not even receive such relief. See, e.g., Rock Springs Grazing Ass’n, 935 F. Supp. 2d at 1182-85. In any event, the Campaign’s argument is built on a faulty premise. The situation is not the same now as it has been for the last 44 years. Until just recently, the private landowners in the checkerboard voluntarily tolerated a certain number of wild horses on their private land, presumably in the hope that such acquiescence would assist the Bureau in achieving the agency’s admittedly difficult task of managing wild horses in the checkerboard. See Rock Springs Grazing Ass’n, 935 F. Supp. 2d at 1184. But, after forty-odd years of broken promises and unachieved goals, patience has run out and consent has been withdrawn. Id. It is only now that the private landowners are exercising their statutory right for their private land to be entirely free of wild horses and the significant damage that the horses cause. 29
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Understandably, that has changed the playing field considerably. And that is also why the Campaign’s attempt to point to the past carries no weight. (See Aplt. App. 95). The Campaign next argues that the Bureau’s construction of the Wild Horse Act reads Section 3 “entirely out of the statute.” (Campaign Br. at 54). For the private landowners in the Wyoming checkerboard, however, the Campaign is the party attempting to read Section 4 out of the Act. In comparison, the Bureau is trying not to read any part out of the Act. The agency is striving to give meaning to the entire Wild Horse Act, including the right for private landowners in the Wyoming checkerboard to be free of wild horses on their land. The mere fact that the agency can and will gather wild horses from both public and private land within the Wyoming checkerboard in order to provide meaningful relief to private landowners under Section 4 of the Act in no way reads Section 3 out of the Act. The Campaign also asserts that the Bureau’s construction of the Wild Horse Act “is not permissible because it is ‘manifestly contrary’ to the statutory scheme.” (Campaign Br. at 55 (citation omitted)). The essence of the Campaign’s argument is that: (1) the overriding mandate of the Wild Horse Act is protect wild horses; and (2) the Bureau’s interpretation of the Act’s applicability in the checkerboard is contrary to that scheme. This argument lacks merit. The plain language of the Act shows that, while the statute was assuredly designed to protect wild horses, the 30
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statute also protects the rights of private landowners. 16 U.S.C. § 1334. Section 3 does not trump Section 4, and the Campaign has not provided any law to suggest otherwise. Moreover, the Campaign has provided no evidence that the Bureau’s interpretation of the Act (or the 2014 checkerboard gather) will actually harm wild horses. With an annual reproduction rate approaching 20%, the Bureau will assuredly be gathering excess wild horses in the Wyoming checkerboard sooner than anyone would like.5 In reality, the need to protect wild horses became one of the Bureau’s lesser concerns long ago. See Public Rangelands Improvement Act of 1978, Pub. L. 95514, 92 Stat. 1803, 1808-10 (Oct. 25, 1978). That is not to say that protection of wild horses is no longer the agency’s mandate. It is. But the facts on the ground show that the explosive growth of wild horse populations has long since alleviated any concern for their survival. Congress recognized this as far back as 1978. Id. Wild horses are not endangered. Wild horses are not threatened. Instead, wild horses propagate to such an extent that the Bureau struggles to protect the range upon which the wild
“Myths & Facts,” available at http://www.blm.gov/wo/st/en/prog /whbprogram/history_and_facts/myths_and_facts.html (last visited Jan. 9, 2016). It is appropriate for the Court to take judicial notice of a posting on a federal agency website. New Mexico ex rel. Richardson v. BLM, 565 F.3d 683, 702 n.22 (10th Cir. 2009). 5
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horses – and other species that are threatened or endangered – rely.6 Accordingly, the Campaign’s argument that the Bureau’s interpretation will meaningfully harm wild horse populations is misplaced. The Bureau’s interpretation of the Act is a “permissible construction of the statute” entitled to deference. Chevron, 467 U.S. at 843. This Court should uphold the Bureau’s decision as a result. III.
FLPMA does not apply to the Bureau’s actions under Section 4 of the Wild Horse Act. The Campaign contends that the Bureau violated FLPMA in the course of
conducting the 2014 wild horse gather. (Campaign’s Br. at 60-63). Specifically, the Campaign argues that the Bureau’s gather violated FLPMA because there were fewer wild horses on the relevant HMAs than provided for by the low end of the relevant AMLs, which they assert is contrary to the applicable resource management plan established under FLPMA. (Campaign’s Br. at 60). The Campaign also asserts that, by conducting the gather, the Bureau altered the applicable AMLs without
In 2015, the Bureau spent close to two-thirds of the agency’s wild horse budget to permanently store excess horses on long-term pastures just so those same wild horses would not destroy their own habitat along with the habitat that supports countless other species. See “Wild Horse & Burro Quick Facts,” available at http://www.blm.gov/wo/st/en/prog/whbprogram/history_and_facts/quick_facts.htm l (last visited Jan. 9, 2016)). 6
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going through the necessary resource management plan amendment process outlined in FLPMA. (Campaign’s Brief at 61). The Campaign is mistaken. The Campaign’s argument ignores the plain language of the Wild Horse Act. When the Bureau removes wild horses that stray onto private land under Section 4, the agency is not subject to the same requirements and considerations as when the Bureau removes excess wild horses from public land under Section 3. The plain language of the Wild Horse Act bears this out. Section 3 requires that the removal of excess horses occur “so as to achieve appropriate management levels.” 16 U.S.C. § 1333(b)(2)(iv). In contrast, Section 4 is silent as to AMLs. 16 U.S.C. § 1334. The Bureau conducted the 2014 gather pursuant to its Section 4 authority. Accordingly, the Bureau did not need to adhere to the AML limits that apply to Section 3. As a result, the Campaign’s argument lacks merit. The district court agreed, finding that the Bureau simply removed wild horses that had strayed off of public land pursuant to the Bureau’s authority under Section 4 of the Act, to which FLPMA does not apply. (Aplt. App. 96-98). Similarly, the district court rejected the novel and strained argument that the Bureau modified the AMLs developed pursuant to FLPMA simply by conducting a wild horse gather under the agency’s Section 4 authority. (Aplt. App. 96-98). To be sure, the district court recognized that, in a perfect world, it would have been preferable for the Bureau to alter the appropriate management levels through 33
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the resource management plan process before conducting the gather. (Aplt. App. 97). But the district court also recognized that the agency could not take the time necessary to adjust the AMLs through the resource management plan process, which is an extremely time-consuming endeavor, because the Bureau “was obligated to take timely and appropriate action in response to a Section 4 request from a landowner.”7 (Aplt. App. 97). “[O]nce [the Grazing Association] took the first step under Section 4 with a demand for the removal of wild horses from the checkerboard, [the Bureau] was under an unqualified duty to act as soon as practicable, and not delay while the longer much more involved planning process is completed.” (Aplt. App. 97-98). This Court should adopt this reasoning. In sum, the requirements of FLPMA do not apply when the Bureau acts under the agency’s Section 4 authority. As a result, the Campaign’s argument is without merit. CONCLUSION This Court should reject the Campaign’s contention that the Bureau is not permitted, in any circumstance, to remove wild horses from public land under Section 4 of the Wild Horse Act. If this Court were to adopt this line of reasoning, the Court would then deny all private landowners in the Wyoming checkerboard the
7
The district court did note that the Bureau is currently in the process of amending the AMLs in question. (Aplt. App. 97). 34
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unambiguous rights that Congress bestowed upon them when it passed the Wild Horse Act. That is not the result that Congress intended. The plain language of the Wild Horse Act supports the Bureau’s decision to conduct the 2014 checkerboard gather. And even if this Court does not agree that the Wild Horse Act is unambiguous, the Bureau interpreted the Act in a way that is entitled to considerable deference. Under the Wild Horse Act, the rights of private landowners are protected with the same vigor as the wild horses themselves. The Bureau, faced with this statutory reality and an admittedly difficult situation, came to a decision that accomplishes both goals. This Court should uphold that decision. STATEMENT ON ORAL ARGUMENT This case involves complicated issues of law, and Wyoming believes oral argument will benefit the Court. Accordingly, Wyoming asks that this Court set the case for oral argument once the parties have fully briefed the merits. Submitted this 22nd day of January, 2016. /s/ Erik Petersen Erik Petersen (Wyo. State Bar No. 7-5608) Michael J. McGrady (Wyo. Bar No. 6-4099) Wyoming Attorney General’s Office 2320 Capitol Avenue Cheyenne, WY 82002 (307) 777-6946 (307) 777-3542 facsimile
[email protected] [email protected] Counsel for Intervenor-Respondent-Appellee State of Wyoming 35
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CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with the typeface, typestyle, and word count requirements of Fed. R. App. P. 32. This brief contains 8,960 words excluding those portions of the brief exempted from the word count requirement by Fed. R. App. P. 32(a)(7). I relied on Microsoft Word 2013 to determine the final word count in this proportionally-spaced brief.
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Date Filed: 01/22/2016
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CERTIFICATES OF SERVICE, DIGITAL SUBMISSIONS AND PRIVACY REDACTIONS I hereby certify that on this 22nd day of January, 2016, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Tenth Circuit via the appellate CM/ECF system. The parties in this case will be served electronically by that system. I hereby certify that all required privacy redactions have been made pursuant to 10th Cir. R. 25.5; that the ECF submission is an exact copy of the hard copies filed with the Clerk; and that the digital submissions have been scanned for viruses with the Symantec™ Endpoint Protection, version 12.1.6608.6300, Virus Definition File dated January 22, 2016 r5 and, according to the program, is free of viruses.
/s/ Erik Petersen Erik Petersen (Wyo. State Bar No. 7-5608) Michael J. McGrady (Wyo. Bar No. 6-4099) Wyoming Attorney General’s Office 2320 Capitol Avenue Cheyenne, WY 82002 (307) 777-6946 (307) 777-3542 facsimile
[email protected] Counsel for Intervenor-Respondent-Appellee State of Wyoming
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