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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
Case No. 14-cv-152-NDF
AMERICAN WILD HORSE PRESERVATION CAMPAIGN, et al.,
Petitioners
v.
SALLY JEWELL, et al.,Respondents,
and
ROCK SPRINGS GRAZING ASSOCIATION,
Respondent-Intervenor,
and
STATE OF WYOMING,Respondent-Intervenor.
PETITIONERS OPENING BRIEF
AND ADDENDUM
Timothy Kingston
LAW OFFICE OF TIM KINGSTON,LLC
408 West 23rd Street, Ste. 1
Cheyenne, WY 82001
TEL: (307) 638-8885FAX: (307) 637-4850
William S. Eubanks II
Caitlin T. Zittkowski
MEYER GLITZENSTEIN &CRYSTAL
1601 Connecticut Ave. NW, Ste. 700
Washington DC, 20009TEL: (202) 588-5206
FAX: (202) 588-5049
Counsel for Petitioners
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TABLE OF CONTENTS
PAGE
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
GLOSSARY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii
INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATUTORY AND REGULATORY FRAMEWORK.. . . . . . . . . . . . . . . . . . . . . 2
A. The Creation and Regulation of the Wyoming
Checkerboard. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
B. The Wild Free-Roaming Horses and Burros Act. . . . . . . . . . . . . . . . . 4
C. The National Environmental Policy Act. . . . . . . . . . . . . . . . . . . . . . . 8
FACTUAL BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
A. The Adobe Town, Salt Wells Creek, and Great Divide
Basin HMAs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
B. The RSGA Litigation and the Resulting 2013 ConsentDecree. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
C. BLMs Implementation of the RSGA Consent Decree. . . . . . . . . . . 15
ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
I. PETITIONERS HAVE STANDING TO BRING THIS ACTION.. . . . . . . 23
II. BLM IS VIOLATING THE WILD HORSE ACT. . . . . . . . . . . . . . . . . . . . 24
A. BLM's Novel WHA Interpretation that Allows BLM to
Discard Section 3 in Permanently Removing Hundreds of
Wild Horses from Public Lands Cannot Be Sustained under
ChevronStep 1... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
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B. Even If Section 3 of the WHA Were Ambiguous, BLM's
Novel Statutory Construction Cannot Be Upheld under
ChevronStep 2... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
III. BY MANAGING WILD HORSE POPULATIONS BELOW AML,
BLM IS CONTRAVENING THE APPLICABLE RMPs, FLPMA,
THE WHA, NEPA, AND THE APA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
IV. BLM IS VIOLATING NEPA IN MYRIAD WAYS.. . . . . . . . . . . . . . . . . . 40
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
ii
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TABLE OF AUTHORITIES
CASES PAGE
Aspenwood Inv. Co. v. Martinez,355 F.3d 1256 (10th Cir. 2004) ............................................................................29
Bowen v. Georgetown Univ. Hosp.,488 U.S. 204 (1988) .............................................................................................34
BP Am., Inc. v. Okla. ex rel. Edmondson,
613 F.3d 1029 (10th Cir. 2010) ..................................................................... 25, 26
Burrage v. United States,134 S. Ct. 881 (2014)............................................................................................31
Camfield v. United States,
167 U.S. 518 (1897) ...........................................................................................4, 6
Cent. Bank of Denver v. First Interstate Bank,511 U.S. 164 (1994) .............................................................................................31
Chafin v. Chafin,
133 S. Ct. 1017 (2013)..........................................................................................23
Chevron U.S.A., Inc. v. Natural Res. Def. Council,467 U.S. 837 (1984) ............................................................ 1, 2, 22, 23, 27, 36, 37
Citizens for Better Forestry v. U.S. Dep't of Agric.,
341 F.3d 961 (9th Cir. 2003) ................................................................................45
Colo. Wild Horse and Burro Coal.v. Salazar,
639 F. Supp. 2d 87 (D.D.C. 2009)........................................................................26
Custer Cnty. Action Ass'n. v. Garvey,
256 F.3d 1024 (10th Cir. 2001) ............................................................................44
Dep't of the Treasury, IRS v. Fed. Labor Rel. Auth.,494 U.S. 922 (1990) .............................................................................................32
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Elwell v. Okla. ex rel. Bd. of Regents of Univ. of,Okla., 693 F.3d 1303 (10th Cir. 2012) .................................................................30
Erlenbaugh v. United States,409 U.S. 239 (1972) .............................................................................................27
Fallini v. Hodel,
783 F.2d 1343 (9th Cir. 1986) ....................................................................... 28, 35
FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120 (2000) .............................................................................................30
Friends of the Earth v. EPA,
446 F.3d 140 (D.C. Cir. 2006)..............................................................................37
Friends of the Earth, Inc. v. Laidlaw Envtl. Serv., Inc.,
528 U.S. 167 (2000) .............................................................................................23
Fund for Animals. v. BLM,
460 F.3d 13 (D.C. Cir. 2006) ................................................................................44
Horphag Research Ltd. v. Garcia,
475 F.3d 1029 (9th Cir. 2007) ..............................................................................33
In Def. of Animals v. U.S. Dep't. of Interior,
909 F. Supp. 2d 1178 (E.D. Cal. 2012) ............................................................6, 38
Lac du Flambeau Band v. Stop Treaty Abuse,
991 F.2d 1249 (7th Cir. 1993) ..............................................................................33
Leo Sheep Co. v. United States,
440 U.S. 668 (1979) ............................................................................................... 3
Lewis v. Chicago,
560 U.S. 205 (2010) .............................................................................................30
Local No. 93, Int'l Ass'n of Firefighters v. Cleveland,
478 U.S. 501 (1986) .............................................................................................31
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Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29 (1983) ............................................................................ 22, 39, 42, 44
Mtn. States Legal Found. v. Hodel,
799 F.2d 1423 (10th Cir. 1986) ............................................................................37
N.M. Cattle Growers Ass'n v. U.S. Fish and Wildlife Serv.,248 F.3d 1277 .......................................................................................................25
Ohio Valley Envtl. Coal. v. Horinko,
279 F. Supp. 2d 732 (S.D.W.V. 2003) .................................................................30
Pub. Lands Council v. Babbitt,
167 F.3d 1287 (10th Cir. 1999) ............................................................................35
Roaring Springs Assocs. v. Andrus,471 F. Supp. 522 (D. Or. 1978) ............................................................................28
Rock Springs Grazing Ass'n v. Salazar,935 F. Supp. 2d 1179 (D. Wyo. 2013) ...................................................... 3, 10, 14
Town of Barnstable, Mass. v. FAA,
659 F.3d 28 (D.C. Cir. 2011) ................................................................................35
U.S. v. Power Eng'g Co.,303 F.3d 1232 (10th Cir. 2002) ............................................................................36
United Keetoowah Band of Cherokee Indians of Okla. v. HUD,
567 F.3d 1235 (10th Cir. 2009) ............................................................... 22, 23, 36
United States v. AdameOrozco,607 F.3d 647 (10th Cir. 2010) ..............................................................................25
Utah Envtl. Cong. v. Bosworth,443 F.3d 732 (10th Cir. 2006) ..............................................................................42
Util. Air Reg. Grp. v. EPA,___ U.S. ___, 134 S. Ct. 2427 (2014) ..................................................................30
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Valley Camp of Utah, Inc. v. Babbitt,
24 F.3d 1263 (10th Cir. 1994) ..............................................................................33
Whitman v. Am. Trucking Ass'ns,
531 U.S. 457 (2001) .............................................................................................29
Wilderness Watch v. Mainella,375 F.3d 1075 (11th Cir. 2004) ..................................................................... 41, 44
STATUTES
5 U.S.C. 706(2) .............................................................................................. 22, 40
16 U.S.C. 1331-1340 .................................... 1, 4, 5, 6, 7, 8, 24, 25, 28, 34, 39 36
42 U.S.C 4321-4370f ........................................................................................2, 8
43 U.S.C. 1061-1065 ............................................................................................ 3
43 U.S.C. 1701-1787 ......................................................................................2, 38
REGULATIONS
40 C.F.R. 1500.1-1508.27 ........................................................................ 8, 42, 43
43 C.F.R. 4700.0-4720.2 ........................................................................ 5, 6, 7, 26
43 C.F.R. 1610.5 ......................................................................................... 16, 38
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GLOSSARY
AML Appropriate Management Level
APA Administrative Procedure Act
AR Administrative Record
AWHPC American Wild Horse Preservation Campaign
BLM Bureau of Land Management
CE Categorical Exclusion
DR Decision Record
EA Environmental Assessment
EIS Environmental Impact Statement
FLPMA Federal Land Policy Management Act
FONSI Finding of No Significant Impact
HMA Herd Management Area
NEPA National Environmental Policy Act
RMP Resource Management Plan
RSGA Rock Springs Grazing Association
UIA Unlawful Inclosures Act
WHA Wild Free-Roaming Horses and Burros Act
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Section 3 of the WHA is the onlystatutory provision that grants BLM any
authority to remove wild horses frompubliclandauthority triggered onlyif BLM
first makes certain mandatory determinations. See 16 U.S.C. 1333(b)(2). Thus,
because the intent of Congress is clear, that is the end of the matter, and the
Court must give effect to the unambiguously expressed intent of Congress.
Chevron, 467 U.S. at 842-43. This outcome cannot be avoided simply because
BLM desires to be freed from the WHAs text in order to address what BLM views
as an administrative inconvenience in taking actions in the Checkerboardi.e., a
public policy argument that has no relevance in the Chevronframework.
Likewise, since BLMs decisions to exclude this action from environmental
analysis and to reduce the wild horse populations at issue far below the agencys
own established appropriate management levels (AML) were also premised on
BLMs willful disregard for thepublic land component of its action, BLM has also
violated the National Environmental Policy Act (NEPA), 42 U.S.C. 4321-
4370f, the Federal Land Policy and Management Act (FLPMA), 43 U.S.C.
1701-1787, and its own governing Resource Management Plans (RMPs).
STATUTORY AND REGULATORY FRAMEWORK
A.
The Creation and Regulation of the Wyoming Checkerboard
In 1862, Congress created the Wyoming Checkerboard land management
scheme in order to facilitate the construction of a transcontinental railroad. See
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Rock Springs Grazing Assn v. Salazar, 935 F. Supp. 2d 1179, 1182 (D. Wyo.
2013) (Freudenthal, J.). Today, the Checkerboard still consists of one-mile-by-one-
mile squares of federal public land continuously alternating with one-mile-by-one-
mile squares of private land, forming a checkerboard pattern encompassing an
area roughly 40 miles wide and 80 miles long and containing slightly more than
two million acres.Id. In turn, approximately half of the Checkerboard is privately
owned, while the other half is federally owned public land.Id.
Ranchers quickly realized that by owning a small portion of land within the
Checkerboard they could assert control over large swaths of public land. Thus,
soon after Congress created the Checkerboard, ranchers began to fence in and
exclude access to the public land portions of the Checkerboard in order to graze
livestock. See Leo Sheep Co. v. United States, 440 U.S. 668, 683-684 (1979)
(discussing the range warsand noting that one exclusionary technique was the
illegal fencing of public landsas a product of the checkerboard pattern).
Congress responded to this illegal fencing by enacting the 1885 Unlawful
Inclosures Act (UIA), 43 U.S.C. 1061-1065. The UIA prohibits both the
physical enclosure of public lands and any assertion of a right to the exclusive use
and occupancy of any part of the public lands. 43 U.S.C. 1061. This, however,
did not stop enterprising ranchers from strategically placing fences on their
privately owned land within the Checkerboard for the sole purpose of fencing in
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public land for their own private use. See, e.g.,Camfield v. United States, 167 U.S.
518 (1897) (challenging private fences used to fence in public Checkerboard land).
The Supreme Court determined that this type of strategic fencing violated the UIA.
Id.at 528 (explaining that landowners cannot build[] a fence which . . . can only
have been intended to inclose the lands of the government). However, [s]o long
as the individual proprietor confines his inclosure to his own land the government
has no right to complain.Id. Thus, on the Checkerboard, ranchers cannot fence in
or assert a right to public land for their own private use, but they can fence in their
individual one-mile-by-one-mile square of private land, although few do, given
their interest in grazing livestock freely between the public and private land.
B. The Wild Free-Roaming Horses and Burros Act
In 1971more than 100 years after it created the CheckerboardCongress
enacted the WHA out of concern that wild horses were disappearing from the
American scene. 16 U.S.C. 1331. Congress directed that wild horses shall be
protectedfrom capture, branding, harassment, [and] death and be considered in
the area where presently found, as an integral part of the natural system of the
public lands.Id.To implement that mandate, Congress declared that the
Department of Interior, through BLM, shall manage wild free-roaming horses and
burros as components of the public lands, and provided that [a]ll management
activities shall be at the minimal feasible level. 16 U.S.C. 1333(a).
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Under the WHA, BLM manages wild horses on public lands within herd
management areas (HMA), which areestablished for the maintenance of wild
horse . . . herds, 43 C.F.R. 4710.3-1, in the areas they used in 1971. See 43
C.F.R. 4700.0-5(d). BLM designates HMAs in RMPs, which are prepared
through a land-use planning process conducted pursuant to FLPMA. FLPMAs
implementing regulations require BLM to maintain RMPs that are designed to
guide and control future management actions onpublic lands.Id. 1601.0-2.
Modifications to HMAs, including alterations to their boundaries, can only be
adopted through this land-use planning process, which requires extensive public
notice, comment, and compliance with NEPA. See43 C.F.R. 4710.1; AR252-53
(decisions to designate or modify an HMA must be made through a [land use
plan] amendment, revision or new RMP).1
The WHA requires BLM to manage wild horses in a manner that is
designed to achieve and maintain a thriving natural ecological balance on the
public lands. 16 U.S.C. 1333(a). To do so, for each HMA, BLM must: (1)
maintain a current inventory of wild horses in each HMA, (2) determine [the]
appropriate management leveli.e., the AMLof wild horses that the HMA can
1All citations to the final administrative record (AR) lodged by BLMrefer to the
Bates number(s) listed on the specific page(s) of the cited material. All AR pagescited by Petitioners are included in an Appendix filed with the Court.
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sustain, and (3) determine the method of achieving the designated AML and
managing horses within it. 16 U.S.C. 1333(b)(1); 43 C.F.R. 4710.2, 4710.3-1.
An AML is expressed as a population range within which [wild horses] can
be managed for the long termin an HMA without resulting in rangeland damage.
See AR262. The lower limit of the AML range is established at a number that
allows the population to grow (at the annual population growth rate) to the upper
limit over a 4-5 year period, without any interim gathers.Id.BLM establishes an
AML for each HMA when developing the applicable RMP, which involves an
extensive planning process that requires public notice and comment, as well as
compliance with NEPA. AR263;see alsoIn Def. of Animals v. U.S. Dept. of
Interior, 909 F. Supp. 2d 1178, 1192 (E.D. Cal. 2012) (AMLs are determined
through revisions to the applicable [RMP].).
Section 3 of the WHA grants BLM the authority to manage and protect wild
horses by permanently removing excess horses from public lands, but only after
BLM specifically determines that: (1) an overpopulation [of wild horses] exists on
a given area of the public lands, and (2) action is necessary to remove excess
animals. 16 U.S.C. 1333(b)(2). An excess wild horse is one that must be
removed from an area in order to preserve and maintain a thriving natural
ecological balance . . . in that area. 16 U.S.C. 1332(f).Once BLM makes a
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confer authority to BLM topermanentlyremove any wild horses from the range;
rather, its narrow focus is on transferring horses from privately owned lands
back to the public lands from which they stray[ed]. 16 U.S.C. 1334.
C.
The National Environmental Policy Act
NEPA is the nations basic national charter for the protection of the
environment, 40 C.F.R. 1500.1, and is binding on all Federal agencies. 40
C.F.R. 1500.3. NEPA requires agencies to prepare an Environmental Impact
Statement (EIS)for major actions that may significantly affect the
environment. 42 U.S.C 4332(C); 40 C.F.R. 1508.27. At minimum, an agency
mustprepare an Environmental Assessment (EA) to determine whether the
environmental effects of its proposed action are significant, thus requiring the
preparation of an EIS. 40 C.F.R. 1501.4(b). When an agency determines that an
EIS is not required, it issues its EA along with a Finding of No Significant
Impact (FONSI), which must explain why the agencys chosen action will not
have a significant effect on the environment.Id. 1508.13.
In rare instances, an agency may categorically exclude actions from NEPA
review.Id. 1508.4. A categorical exclusion is a category of actions which do not
individually or cumulatively have a significant effect on the human environment
and which have been found to have no such effect.Id. In the Interior Department
manual governing BLMsNEPA procedures, there is a categorical exclusion for
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the [r]emoval of wild horses or burros fromprivate landsat the request of the
landowner. AR3389 (emphasis added). BLM does nothave a categorical
exclusion for the permanent removal of wild horses from public lands.
FACTUAL BACKGROUND
A.
The Adobe Town, Salt Wells Creek, and Great Divide Basin HMAs
The Adobe Town, Salt Wells Creek, and Great Divide Basin HMAs are
located in southwest Wyoming, comprising approximately 2,427,220 acres of land.
See AR642; AR3356. Roughly 70% (1,695,517 acres) of these three HMAs is
public land, while only 30% (731,703) is private land.Id. The majority of the
privately owned land falls within the Wyoming Checkerboard and is owned,
leased, or otherwise controlled by Intervenor Rock Spring Grazing Association
(RSGA).Id. The non-Checkerboard lands within these three HMAswhich
comprises well over half of the total land areaprimarily consists of contiguous
blocks of public land.Id.
The Adobe Town HMA is managed by BLMs Rawlins Field Office under
the 2008 Rawlins RMP. AR645. The Rawlins RMP set the AML for the Adobe
Town HMA at 700 wild horses, which is accomplished by managing horses at
BLMs establishedAML range of 610-800. See AR235. The Salt Wells Creek and
Great Divide Basin HMAs are managed by BLMs Rock Springs Field Office
under the 1997 Green River RMP. AR645; AR822. The Green River RMP set the
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AML for the Salt Wells Creek HMA at 251-365 and for the Great Divide Basin
HMA at 415-600. See AR91. Both RMPs require that BLM [m]aintain wild horse
populations within the appropriate management levels (AML).AR235; AR41.
B.
The RSGA Litigation and the Resulting 2013 Consent Decree
In July 2011, RSGA filed a complaint in this Court seeking an order
pursuant to Section 4 of the WHA compelling BLM to remove all of the wild
horses that had strayed onto RSGAsprivate land in the Wyoming Checkerboard.
Rock Springs Grazing Assn v. Salazar (RSGA Case), No. 2:11-cv-263, ECF No.
1. Certain Petitioners in this case were granted intervention.Id., ECF No. 32.
In its opening brief, BLM argued that RSGA was not entitled to the relief it
sought under Section 4 of the WHA.Id., ECF No. 67. The government explained
that while RSGA could certainly request BLM to remove [wild] horses from
private landsunder Section 4, RSGA was not the de factomanager of wild
horses on the Checkerboard landssimply because it owned private land within the
Checkerboard.Id. at 25-26. BLM maintained that the Court could not forc[e]
BLM to manage wild horses on private and public lands [within the Checkerboard]
to the number [RSGA] deem[ed] appropriate because [s]uch relief would exceed
the scope of Section 4 of the [WHA], id. at 25-26, and would interfere with
BLMs discretion.Id. at 41. In addition, the government disavowed RSGAs
interpretation of Section 4, which would require BLM to constantly manage and
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Mountain HMA in 2015, with the exception of those wild horses that are allowed
to remain as identified in paragraphs 1 and 4,AR469 (emphasis added)i.e., no
horses would be removed below AML. See AR468 (stating that BML would only
remove horses on the public lands of these HMAs to the low end of AML). BLM
also agreed to submit to the Federal Register for publication a notice of scoping
under NEPA to consider . . . revising the respective [RMPs] to reduce the Salt
Wells, Great Divide Basin, and Adobe Town AMLs. AR470.
Given BLMsposition regarding Section 4slimitations, the Consent Decree
contained several provisions designed to ensure BLMs ability to complywith the
WHA. Specifically, paragraph 17 contained the following guarantee:
Respondents are required to comply with other federal laws in
conjunction with undertaking the required actions herein. No
provision of this Consent Decree shall be interpreted or constitute acommitment or requirement that the Respondents take actions in
contravention of the WHA, FLPMA, NEPA, the APA.
AR474 (emphasis added). Paragraph 10 further explained that [n]othing in this
Consent Decree shall be construed to limit or modify the discretion accorded to
BLM by the applicable federal law and regulations. . . or general principles of
administrative law with respect to theprocedures to be followed in carrying out
any of the activitiesrequired herein. AR471-72 (emphases added).
The intervenors objected to the Consent Decree for myriad reasons. See
RSGA Case, ECF No. 86-1. Among their primary concerns was that, despite the
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language assuring compliance with all applicable federal laws, BLM had obligated
itself to remove not only all wild horses from the lands that are privately owned
. . . but also wild horses that currently use the more than one million acres ofpublic
lands in the Wyoming Checkerboard.Id. at 3. In turn, the intervenors argued that
the Consent Decree essentially require[d] the agency to remove more wild horses
from the Wyoming Checkerboard than is currently permitted under the existing
laws.Id. Moreover, the intervenors explained that BLM cannot legally remove
wild horses frompublic landwithout first making certain statutorily required
decisions, which, in turn, cannot be made without compliance with NEPA and
other laws.Id. at 10-14. Nor, the intervenors argued, could BLM reduce the AMLs
in any of the HMA before going through a public NEPA process.Id. at 14-16.
In response, BLM argued that the intervenors objections were based on
mischaracterizations of the clear terms of the proposed Decree.RSGA Case, ECF
No. 88 at 7. While accusing the intervenors of focusing their objections on how
they speculate BLM will implement the Decree, id., ECF No. 89 at 15-16, RSGA
assured the Court that the Consent Decree provides for the orderly removal of
wild horses fr om RSGA lands, while complying with federal laws, including
NEPA, WHA, and the [APA] and that BLM had simply agreed to considerthe
option of revising the HMA boundaries and the AMLs for the three HMAs.Id.at
2-3 (emphases added);see alsoid., ECF No. 88 at 7-8 (Under the proposed
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Consent Decree, the BLM agrees only to considerAML modifications and the
potential environmental effect thereof in resource management plan revisions and
associated NEPA documents.) (emphases added). Hence, recognizing BLMs
duty to remove wild horses from private lands under Section 4,id., ECF No. 88
at 6, both parties assured the Court that, in implementing the Consent Decree,
BLM would remove wild horses from RSGAs private land, but would not
permanently remove any wild horses frompublic land (or modify AMLs) until
BLM satisfied the appropriate procedures under the WHA, NEPA, and other laws.
Based on these assurances, this Court approved the Consent Decree, finding
that it did not on its face violate the law or public policy.RSGA, 935 F. Supp. 2d
at 1191. Focusing on paragraph 10, the Court concluded that the Consent Decree
expressly prohibits any construction which would limit or modify the discretion
accorded to BLM by the applicable federal law and regulations.Id. at 1189. The
Court noted that the AMLs for the identified HMAs are not changed by the
Consent Decree and that the Decree specifically requires compliance with NEPA
and the WHA before they could be changed.Id. The Court ultimately held that
whether the Consent Decree actually limits the BLMs discretion will turn on the
implementation and force of the Decree, which is unclear at this junctureand
thus, the intervenors objections are not ripe for adjudication.Id. at 1189-90.
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C.
BLMs Implementation of the RSGA Consent Decree
i.
The 2013 Adobe Town and Salt Wells Roundup
In 2013, BLM immediately began to implement the Consent Decree with a
roundup in the Adobe Town and Salt Wells Creek HMAs designed to remove wild
horses from RSGAs private lands while alsomaintaining populations above low
AML on the HMAs publiclands. AR469 (BLM will commit to gather and
remove wild horses from Checkerboard lands within Salt Wells and Adobe Town
HMAs in 2013.); AR645 (noting that the proposed roundup is necessary to meet
the terms of the 2013 Consent Decree); AR694 (Wild horses will be removed
from private lands and the checkerboard and be maintained at AML within the
federal land block in accordance with the existing 1997 Green River RMP and the
2008 Rawlins RMP.). Accordingly, in July 2013, BLM issued an EA and a
FONSI for twoseparateagency actions: (1) the permanent removal of excess
wild horses from public land in the Adobe Town and Salt Wells HMAs under
Section 3, and (2) the removal of horses that had strayed onto private lands within
the Adobe Town and Salt Wells HMAs under Section 4. SeeAR645; AR741.
In the EA, BLM identified the AMLs for both the Adobe Town HMA (610-
800 wild horses) and the Salt Wells Creek HMA (251-365 wild horses) and made a
formal excess determination as required by the WHA. See AR644 (BLM has
determined that approximately 586 excess wild horses need to be removed).In
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response to comments, BLM explained why the agency was required to maintain
the AML within the Adobe Town and Salt Wells Creek HMAs:
Wild horses will be removed from private lands and the checkerboard
and be maintained at AML within the federal land block in accordancewith the existing 1997 Green River RMP and the 2008 Rawlins RMP.
Changes to HMA boundaries and AML are land use planningallocations and are outside the scope of this analysis . . . . Interim
management of wild horses will continue to be in conformance with theexisting RMPs until the amendments and revision is complete, in
accordance with 43 CFR 1610.5.
AR694 (emphases added).
Despite statements in the EA indicating that the AML will be maintained,
AR 699, Petitioners remained concerned that BLMs decision topermanently
remove all excess horses from the public land while also removing all horses
from private land within these two HMAs could bring the populations in these
areas to below low AML. However, BLM assured Petitioners that the population
will be maintained at the low AML within the federal land block. AR3408-09.
In November 2013, pursuant to its EA, BLM rounded up 668 horses from
the Adobe Town and Salt Wells HMAs. AR3357. BLM permanently removed 586
of those wild horses from the range, which was the combined number of horses
BLM determined were excess wild horses.Id. The remaining 79 wild horses
removed from the private Checkerboard lands were released back into the federal
public land block of these HMAs in order to maintain the AML in the Adobe Town
and Salt Wells HMAs.Id. BLMs decision was not challenged in court.
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ii.
The Initially Proposed Roundup in Great Divide Basin
Soon after completing the Adobe Town/Salt Wells roundup, BLM again
invoked the Consent Decree to gather and remove wild horses from Checkerboard
lands within . . . [the] Great Divide Basin HMA in 2014. AR469. In December
2013, BLM initiated a NEPA process by issuing a Scoping Statement for two
separate actions: (1) the permanent removal of excess wild horses frompublic
lands in the Great Divide Basin HMA under Section 3, and (2) the removal of wild
horses from private lands within that HMA under Section 4. See AR822. BLM
made clear that, while all horses would be removed from private land, some may
be relocated in the northern part of the Great Divide Basin HMA to maintain the
low AML (415 wild horses) within the HMA.Id. This scoping statement mirrored
the approach undertaken by BLM in its 2013 roundup in the Adobe Town and Salt
Wells HMAs under the Consent Decree. CompareAR822, withAR642.
In response to this statement, RSGA identified concerns with BLMs
proposed action to remove wild horses to the low [AML] for the HMA, as this was
believed to be inconsistent with the 2013 Consent Decree provision for removing
all wild horses from checkerboard lands. AR3357. RSGA asserted that BLM must
remove all wild horses from the Checkerboard because, under the Decree, the
Checkerboard is effectively off limits to wild horses and cannot be considered as
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part of their available habitat. AR1318. In turn, RSGA demanded that the Great
Divide Basin AML be reduced to reflect the reduction in land. AR1317.
In February 2014, RSGAscounsel sent a letter to BLMscounsel notifying
BLM that, in RSGAs view, the agency was in violation of the Consent Decree
because BLM had not removed all [] wild horses on the Checkerboard. AR3313.
RSGA reiterated its view that, under the Consent Decree, the Checkerboard is no
longer available to wild horses, id., and accused BLM of sabotag[ing] the
Consent Decree by maintaining the AML within the Adobe Town and Salt Wells
Creek HMAs during the 2013 roundup. AR3314. Even though RSGA recognized
that BLM had thus far complied with the Consent Decree by beginning the
appropriate NEPA process to considerreducing the AMLs for the Salt Wells and
Great Divide Basin HMAs, RSGA concluded its letter with the following:
[G]athering only a minimum number of wild horses and leaving the
rest is not [in] compliance with the Consent Decree. Delaying anychanges to AML or HMA boundaries is also not [in] compliance [with
the Consent Decree]. Regardless of the state of the RMP revision,BLM must pursue revision of AMLs and HMA boundaries
immediately, because these two decisions impede compliance.
AR 3317.
As a result of RSGAs demands, the Justice Departmenti.e., the same
agency that previously assured the Court that, under the Consent Decree, no wild
horses would be removed from public lands in these HMAs unless BLM first
achieved compliance with the WHA, NEPA, and other laws,see supra at 13-14
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instructed BLM that the 2013 Adobe Town/Salt Wells roundup was in violation of
the Consent Decree and that the agency could not proceed in the same manner in
the future. AR3341-42 (We have a planned EA that was publicly scoped in
December 2013; however, DOJ has stated that we cannot proceed in this scope and
manner.). Thus, BLM decided not to gather the Great Divide Basin HMA to low
[AML] under Section 3 of the WHA but instead to gather all wild horses from
the checkerboard within the HMAs under BLMsSection 4 authority. AR3369.
BLM acknowledged that this was a fundamental change in the way the
agency interpreted the Consent Decree and the WHA. AR3341. While grappling
with this drastic shift, the BLM State Director flagged several problems that would
be difficult to address in an EA. AR3340; AR3348. For example, he explained that
proceeding solely under Section 4 will result in the HMA[s] being significantly
below low AML, and that preparing an EA that proposed to remove wild horses
from the checkerboard lands with no regard for the low AML will be very
challenging and has not previously been done in Wyoming. AR3349. Moreover,
he stated that changes to the AML will requireanalysis that is typically done in
an EISthrough the land use planning process and will . . . be very controversial.
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horses from private land upon request from a landowner. However, the DR and CE
made clear that wild horses will also be [permanently] removed from the public
landportions of the Checkerboard. AR3360 (emphasis added); AR3371.
Although Section 3 of the WHA is the only provision authorizing BLM to
permanently remove any wild horses from public land, BLM did not purport to
comply withor even invokeSection 3 in making this decision. In particular,
BLM did not make the excess determination required by Section 3 prior to
permanently removing any wild horses from public land. Nor did the DR or CE
identify, let alone discuss, the operative AMLs for these three HMAs. Rather,
BLM ignored the public land component of its action and asserted that the
management direction set forth in the Green River and Rawlins RMPs, including
that related to [AMLs], do not apply toprivatelands. AR3371 (emphasis added).
iv. The Resulting Roundup
In Fall 2014, BLM permanently removed 1,263 wild horses from these
HMAs and placed them in long-term holding facilities,see ECF58-1 5. As the
following table demonstrates, only 649 wild horses remain on the 2,427,220 acres
of land70% of which is publicwithin these three HMAs.Id. 7.
HMA AML Post-Roundup Population
Great Divide Basin 415-600 91
Salt Wells Creek 251-365 39
Adobe Town 610-800 519
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ARGUMENT
Under the Administrative Procedure Act (APA), the Court shall . . . hold
unlawful and set aside agency action that is arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.5 U.S.C. 706(2). An action
is arbitrary and capricious if the agency has relied on factors which Congress has
not intended it to consider, entirely failed to consider an important aspect of the
problem, [or] offered an explanation for its decision that runs counter to the
evidence before the agency.Motor Vehicle Mfrs. Assn v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 43 (1983). Thus, although an agency may deviate from its
prior practice, it is obligatedto supply a reasoned analysis for the change.Id. at
42-43. If the agencys explanationis deficient, the Court may not supply a
reasoned basis for the agencys action that the agency itself has not given.Id.
When determining whether an action is in accordance with law, the Court
applies the two-step analysis set forth in Chevron, 467 U.S. at 842. Under this
analysis, the Court must first determine whether Congress has directly spoken to
the precise question at issue. United Keetoowah Band of Cherokee Indians of
Okla. v. HUD, 567 F.3d 1235, 1239 (10th Cir. 2009) (quoting Chevron, 467 U.S. at
842). If Congress has spoken directly to the issue, that is the end of the matter; the
court . . . must give effect to Congresss unambiguously expressed intent.Id. Only
if the statute is ambiguous on the pertinent issue should the Court proceed to step
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two and ask whether the agencys answer is based on a permissible construction
of the statute.Id. (quoting Chevron, 467 U.S. at 843). However, the Court must
not impose [its] own construction of the statute and will not defer to an agencys
construction if it is manifestly contrary to the statutory scheme.Id. at 1240.
As demonstrated below, BLMs decision topermanentlyremove wild horses
frompublic lands under Section 4 of the WHA is arbitrary, capricious, and
contrary to the WHA, NEPA, FLPMA, and the APA.
I.
PETITIONERS HAVE STANDING TO BRING THIS ACTION.
This Court has Article III jurisdiction to review Petitioners claims. First,
through their detailed declarations attesting to their cognizable interests that have
beenand continue to beimpaired by BLMs actions,see Exhibits A-D,
Petitioners have plainly established standing to challenge those actions. See, e.g.,
Friends of the Earth, Inc. v. Laidlaw Envtl. Serv., Inc., 528 U.S. 167, 180-81
(2000) (explaining the requirements for Article III standing). Second, because
there exist various remedial measures that the Court could order to redress
Petitioners injuries,see, e.g., Exhibit A 11; Exhibit B 14; Exhibit C 9, this
case presents a live controversy. See, e.g., Chafin v. Chafin, 133 S. Ct. 1017, 1023
(2013) (holding that a case becomes moot only when it is impossiblefor a court to
grant any effectual relief whatever to the prevailing party)(citation omitted).
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II.
BLM IS VIOLATING THE WILD HORSE ACT
In BLMs words, the agency has two distinct obligations under the Wild
Horse Act. ECF 30 at 1. The first involves management of wild horses on public
land; the second distinct and independent dut[y] involves wild horses that have
strayed onto private land.Id. at 2. It is indisputable that Section 3 of the WHA, 16
U.S.C. 1333, directs all BLM actions related to wild horses on public land, while
Section 4 of the WHA, id. 1334, governs BLMs actions on private land. These
two provisions are absolute and do notcontain any exceptions for checkerboard
management schemes. Hence, BLM has a non-discretionary statutory obligation to
comply with Section 3 before taking action to permanently remove any horses
from the Checkerboards public lands, as is the case on any other public lands.
Here, thumbing its nose at these obligations (and four decades of BLMs
owninterpretation of these statutory mandates), BLM entirely ignored its Section 3
duties and treated the entire Checkerboard as if it were RSGAs private land. See
AR3313 (RSGA demanding that the Checkerboard is no longer available to wild
horses); AR3357; ECF 29 at 10 (BLM must manage wild horses within the
checkerboard portion of the affected HMAs as if they are all occupying private
range.). By turning a blind eye to the reality that half of the Checkerboard consists
of public land, BLM relied solely on Section 4 of the WHA inpermanently
removing wild horses frompublicland for the fi rst time in agency history. In
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key requirements that expressly limit how many horses BLM may permanently
remove from public land: (1) a formal excess determination, id., and (2) the AML
established for each HMA.Id (requiring that BLM achieve [and manage within]
appropriate management levels). Thus, in the WHA, Congress explicitly required
that BLM mustmake an excess determination beforepermanently removing any
wild horses from public land, and must not remove any horses belowlow AML.
Id.; 43 C.F.R. 4720.1; Colo. Wild Horse and Burro Coal.v. Salazar,639 F.
Supp. 2d 87, 95-96 (D.D.C. 2009) (finding that Congress clearly intended to
protect non-excess wild free-roaming horses . . . from removal and that BLMs
removal authority is limited to those . . . horses . . . that it determines tobe excess
animals within the meaning of the [WHA],and holding that [a] prerequisite to
removal under the [WHA] is that BLM first determine that an overpopulation
exists and that the . . . horses . . . slated for removal are excess animals).3
Importantly, although Congress was acutely aware of the peculiarities of the
Wyoming Checkerboard when it enacted the WHA in 1971indeed, Congress
previously established the Checkerboard ownership pattern,see supra at 2-3
Congress certainly did not create any exceptions to accommodate BLMs
3The only extremely narrow exception where BLM may remove wild horses
without observance of all Section 3 proceduresi.e., making a formal excessdetermination and managing above low AMLis where an emergency situation
exists and immediate action is needed to protectthe health and welfare of a wild
horse or burro population.AR3397. BLM did not invoke that limited exceptionhere, as no emergency situation existed when BLM issued its decision.
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prospective actions related to wild horses in the Checkerboard. See Erlenbaugh v.
United States, 409 U.S. 239, 244 (1972) (courts must necessarily assume[] that
whenever Congress passes a new statute, it acts aware of all previous statutes on
the same subject) (citation omitted).To the contrary, Congress broadly directed
BLM in Section 3 to first satisfy all of the legal prerequisites before permanently
removing any wild horses from anypublic lands under BLMs jurisdiction.
Ignoring Congresss dictates, BLM permanently removed hundredsof wild
horses frompublic land in its 2014 roundup, ECF58-1 5, without even attempting
to comply with the statutory requirements set forth in Section 3 of the WHAi.e.,
the only legalmechanism Congress created in the WHA under which BLM is
authorized to permanently remove wild horses from public land.Id.As a result,
BLM permanently removed hundreds of non-excess horses from the range and
reduced these populations far below their established AMLs. Thus, because BLM
is deliberately ignoring the unambiguously expressed intent of Congressin
Section 3, Chevron, 467 U.S. at 843, this should be the end of the matter.
This conclusion is only bolstered by the fact that thesole authority BLM
invoked in authorizing the permanent removal of hundreds of wild horses from
public lands in these three HMAsSection 4 of the WHA,see AR3369plainly
does not confer BLM any authority to permanently remove wild horses from
publiclands (whether or not adjacent to private lands). See 16 U.S.C. 1334
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(providing BLM the very limited authority to remove wild horses fromprivate
land when the owners of such land . . . inform [BLM] that a wild horse has
stray[ed] from public lands onto privately owned land).
Nor, for that matter, does BLM have any legal duty (or authority) under
Section 4 topreemptively remove wild horses frompublic land to prevent them
from straying onto private land. See Fallini v. Hodel, 783 F.2d 1343, 1346 (9th Cir.
1986) (We fail to find any suggestion by Congress . . . that the BLM ha[s] a duty,
ministerial or prescribed, to prevent straying of wild horses onto private land.); id.
(The Act does not charge BLM with the duty to prevent wild horses from
straying.);Roaring Springs Assocs. v. Andrus, 471 F. Supp. 522, 523 (D. Or.
1978) (Even if geography and the habit of these wild free-roaming horses dictate
that the Secretary of the Interiormust go back again to retrieve the animals, that is
nevertheless his duty prescribed by the statute.) (emphasis added).This is only
reinforced by BLMs admission that Section 4 does not authorize the type of
continuing management that require[s] BLM to constantly manage and prevent
wild horses from straying onto private lands.RSGA Case, ECF No. 67 at 25.
Consequently, BLMs argument necessarily boils down to the proposition
that either Section 3 applies to all permanent wild horse removals from public land
exceptin the Checkerboard, or, even if the Checkerboard is not exempt from the
application of Section 3, the Court should allow BLM to escape the statutes plain
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terms in the Checkerboard to promote the agencys administrative convenience.
Neither of these arguments can trump Congresss clear intent under Chevron.
As a basic principle of statutory construction, the former argument is
foreclosed because Congress expressly designed the WHA as imposing an absolute
requirement that BLM satisfy various prerequisites before removing anywild
horses from anypublic lands. The text speaks of no exceptionsfor the
Checkerboard or otherwisenor is there any legislative history suggesting that
Congress intended to impose a different legal regime in the Checkerboard from all
other BLM lands. This is fatal to BLMs argument, as Congress would have clearly
articulated a major exception of this kind in the statute itself. See Whitman v. Am.
Trucking Assns,531 U.S. 457, 468 (2001) (Congress . . . does not alter the
fundamental details of a regulatory scheme in vague terms or ancillary
provisionsit does not, one might say, hide elephants in mouseholes.);
Aspenwood Inv. Co. v. Martinez, 355 F.3d 1256, 1261 (10th Cir. 2004) (courts
cannot torture the language of a statute to reach the result the agency wishes.).
The latter argument fares no better under Chevron. Although Petitioners can
understand whyBLM may wish to be excused from the requirements of Section 3
in managing the Checkerboard, BLM is not at liberty to pick and choose which
statutory mandates to comply with based on what makes BLMs task easier. See,
e.g., Ohio Valley Envtl. Coal. v. Horinko, 279 F. Supp. 2d 732, 748 (S.D.W.V.
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2003) (courts cannot evade the unambiguous directions of the law merely for
administrative convenience.) (emphasis added);Elwell v. Okla. ex rel. Bd. of
Regents of Univ. of Okla., 693 F.3d 1303, 1313 (10th Cir. 2012) (district courts are
never permitted to disregard clear statutory directions)(citation omitted).
Nor can BLMs asserted public policy rationaleno matter how
persuasivetrump the statutes plain text. As the Supreme Court reiterated this
term, it is axiomatic that an agency may not rewrite clear statutory terms to suit its
own sense of how the statuteshouldoperate. Util. Air Reg. Grp. v. EPA, ___U.S.
___, 134 S. Ct. 2427, 2446 (2014) (emphasis added);see also FDA v. Brown &
Williamson Tobacco Corp., 529 U.S. 120, 125-26 (2000) (Regardless of how
serious the problem an administrative agency seeks to address, however, it may not
exercise its authority in a manner that is inconsistent with the administrative
structure that Congress enacted into law.).
In turn, because an agencys discretion doesnot come into play under
Chevron Step 1i.e., the inquiry turns on the statutory language alonecourts
must reject agency attempts to circumvent clear statutory language on the basis of
asserted policy rationales.Lewis v. Chicago,560 U.S. 205, 217 (2010) ([I]t is not
our task to assess the consequences of each approach [to interpreting a statute] and
adopt the one that produces the least mischief. Our charge is to give effect to the
law Congress enacted.);Burrage v. United States,134 S. Ct. 881, 892 (2014)
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B.
Even If Section 3 of the WHA Were Ambiguous, BLMs Novel
Statutory Construction Cannot Be Upheld under Chevron Step 2.
Even assuming that Section 3 is ambiguouswhich it plainly is not
BLMs statutory interpretation that allows it to avoid Section 3s requirements in
managing the Checkerboards public landswould also fail under ChevronStep 2.
To begin with, BLM has notasserted in its decision documents that a
statutory ambiguity exists, nor has the agency provided anydiscernible rationale
for why it must resolve any purported ambiguity in the manner it has selected
herei.e., to dispense entirely with Section 3 when permanently removing wild
horses from public land in the Checkerboard in order to preemptively prevent them
from straying onto private land. However, because this is within the province of
the agencyrather than the CourtBLMs silence on these crucial questions
cannot be relied on to fill any purported gap in the statutory scheme. See, e.g.,
Dept of the Treasury, IRS v. Fed. Labor Rel. Auth., 494 U.S. 922, 933 (1990)
(giving reasonable content to the statutes textual ambiguities is not a task [the
Court] ought to undertake on the agencys behalf) (citations omitted).
More importantly, even if BLM hadformally advanced the statutory
interpretation in its decision documents that it now has no choice but to defend
i.e., that Sections 3 and 4 of the WHA are in such fundamental tension when
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jointly implemented in the Checkerboard that it creates a statutory ambiguitythat
interpretation would not be entitled to deference for various reasons.5
First, setting aside the critical fact that Congress intended the directives
under Section 3 and those under Section 4 to address different circumstances that
are mutually exclusive and operate independently, BLMs WHA construction is
legally impermissible because it directly conflicts with decades of the agencys
ownpractice in the Checkerboard, as well as BLMs ownwild horse policy manual
and handbook. See, e.g., Valley Camp of Utah, Inc. v. Babbitt, 24 F.3d 1263, 1267-
68 (10th Cir. 1994) (no Chevrondeference is due where the agencys
interpretation . . . is inconsistent with its prior administrative interpretations).
Here, any tension between Sections 3 and 4 has been manufactured by BLM
for the sole purpose of justifying its unprecedented decision to remove wild horses
5In denying Petitioners motion for emergency relief, the Court focused at that
stage on what it viewed as an apparent tension between Sections 3 and 4 basedon BLMs assertion that it is practicably infeasible for the BLM to meet its
obligations under Section 4 of the WHA while removing wild horses solely fromthe private lands sections of the checkerboard. See ECF No. 35 at 2, 6 (citing ECF17-6 at 6). However, the Courts ruling did not address the governing Chevron
framework or explain how BLMsunprecedented statutory interpretation could be
harmonized with that framework. In any event, now that the Court has an
opportunity to review the full administrative record and place this claim within the
proper context, it is clear that the Courts earlier ruling should have no dispositivebearing on the resolution of the merits. SeeLac du Flambeau Band v. Stop Treaty
Abuse, 991 F.2d 1249, 1258 (7th Cir. 1993) (explaining that the district court isnot only free, but more properly put, obliged, to reconsider each of her decisions
on the motion for preliminary injunction);Horphag Research Ltd. v. Garcia, 475
F.3d 1029 (1035 (9th Cir. 2007) (explaining that preliminary injunction findingsare not binding on the district court at this stage of the litigation).
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from public land without satisfying the legal prerequisites of Section 3. See Bowen
v. Georgetown Univ. Hosp., 488 U.S. 204, 213 (1988) (Deference to what appears
to be nothing more than an agencys convenient litigating position would be
entirely inappropriate.). Notably, this is thefirst time in BLMs 43-year history of
managing wild horses within the Checkerboard (or anywhere else) that the agency
has eversuggested that Sections 3 and 4 are even remotely incompatible.
Just last year, for example, BLM conducted a functionally identical roundup
of wild horses from the Checkerboard and had littletrouble fulfilling its statutory
obligations under both Section 3 (on public land) and Section 4 (on private land).
See AR645; AR741. Moreover, BLM failed to produce in the administrative record
asingleinstance from its 43 years of WHA management where itpermanently
removed wild horses frompublicland on the basis of its Section 4 authority.
This omission is not surprising, given that BLMs newly minted
interpretation is at odds with BLMs stated position to this Court and other
federal courts that Section 4 does notauthorize BLM to permanently remove all
wild horses from the RSGA lands and the adjacent public lands within the
Wyoming Checkerboard because such relieffar exceeds the statutory obligation
under 1334i.e., Section 4and wouldinterfere with BLMs discretion
under Section 3.RSGA Case, ECF. No. 67 at 41 (emphases added);see also id. at
25 (Such relief would exceed the scope of Section 4of the [WHA]) (emphasis
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added);Fallini, 783 F.2d at 1346 (accept[ing] BLMs interpretation of its
statutory duty that prevention of wild horses from straying onto private lands
would be imposing a duty not contemplated by Congress under section 4 of the
Act)(emphasis added).6
BLM cannot have it both ways. Its longstanding practicein conjunction
with the representations it has made to this Court and othersdispels any notion
that the agency cannot comply with both its Section 3 and 4 obligations on the
Wyoming Checkerboard and defeats any backdoor attempt to seek deference.7
Second, even assuming a genuine ambiguity existedwhich it does not
the manner in which BLM opted to resolve the ambiguity cannot be upheld under
basic canons of statutory construction. BLMsoverly expansive reading of Section
4 to allow permanent removals of wild horses from public land renders the portion
6BLMs interpretation also cannot be squared with the agencys ownwild horse
handbook and manual, which prohibit BLM from permanently removing wildhorses from public lands without first making a formal excess determination and
managing wild horse populations above low AML. See AR3395; AR262-64. Thatalso renders BLMs decision arbitrary and capricious. See, e.g., Town of
Barnstable, Mass. v. FAA, 659 F.3d 28, 34-36 (D.C. Cir. 2011) (finding agencyaction arbitrary and capricious because they depart[ed] from the agencys own
internal guidelines established in its own handbook).
7That BLM has abruptly changed its legal interpretation without justifying the
departure with any reasoned analysis is grounds itself for finding BLMs action
arbitrary and capricious. See Pub. Lands Council v. Babbitt, 167 F.3d 1287, 1306
(10th Cir. 1999) (When an agency departs from a prior interpretation of a statutethat it is charged with implementing, the agency must justify the change of
interpretation with a reasoned analysis.) (citations omitted).
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of Section 3 dealing with permanent removals of wild horses from public land
mere surplusage and reads thatprovision entirely out of the statute, as applied to
the Checkerboard. That outcome cannot be squared with Circuit precedent. See
U.S. v. Power Engg Co., 303 F.3d 1232, 1238 (10th Cir. 2002) ([W]e cannot
construe a statute in a way that renders words or phrases meaningless, redundant,
or superfluous.) (citations and quotation marks omitted).
Finally, BLMs anomalous statutory construction is not permissiblebecause
it is manifestly contrary to the statutory scheme. United Keetoowah Band, 567
F.3d at 1240; Chevron, 467 U.S. at 844 (regulations are not given controlling
weight if they are manifestly contrary to the statute.). BLMsfacially
implausible interpretation of Section 4 as somehow authorizing permanent removal
of wild horses from public land (thereby trumping Section 3) is not only at
loggerheads with the plain text of the statute, but is also antagonistic to the overall
statutory scheme and its express purpose ofprotectingwild horses. See 16 U.S.C.
1331 (describing Congressional purposes of the WHA). Although, under Chevron
Step 2, BLM could potentially serve the overriding purposes of the WHA by
deviating from the statutory requirements in a particular instance to benefit wild
horses, it is inconceivable for BLM to do so to the detrimentof the federally
protected animals Congress safeguarded in the WHAas BLM has done here.
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Simply put, the WHA is a wildlife protection law that is not unique in its
impact on private [land] owners.Mtn. States Legal Found. v. Hodel, 799 F.2d
1423, 1428 (10th Cir. 1986). However, by allowing, for the first time, the limited
relief in Section 4 to trump Section 3s crucial substantive protections for wild
horses, BLM has converted the WHA from a wildlife protection law into a
landowner protection law and subverted the WHAs expresspurposes. If there
were ever an agency action undeserving of deference as manifestly contrary to the
statute, Chevron, 467 U.S. at 844, it is this one. In turn, the Court should find
BLM in violation of the WHA until and unless Congress specifically relieves it
from these obligations.Friends of the Earth v. EPA, 446 F.3d 140, 142 (D.C. Cir.
2006) (explaining that if an agency believes that compliance with the statute as
written would be undesirable,then it must take its concerns to Congress).
III.
BY MANAGING WILD HORSE POPULATIONS BELOW AML,
BLM IS CONTRAVENING THE APPLICABLE RMPs, FLPMA, THE
WHA, NEPA, AND THE APA.
It is indisputable that, as a result of BLMs 2014 roundup and the new
statutory interpretation upon which it was premised, BLM is now managing the
Adobe Town, Salt Wells Creek, and Great Divide Basin HMAsfar below the
AMLs that BLM itself previously established in the curr entl y operative2008
Rawlins RMP and 1997 Green River RMP. See supra at 9-10. Indeed, although the
combined AML of these HMAs requires that BLM manage at least1,276 wild
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horses at all times, only 649 wild horses remain in these HMAs as a result of
BLMs recent actions. See supra at 21. Thus, by using its roundup decision and
new statutory interpretation to de factomodify these AMLs by significantly
reducing them by more than 600wild horses combined, BLM is flouting its duties
under FLPMA and the WHA that prohibit BLM from modifying AMLs until BLM
has evaluated specific evidence and data as part of an extensive notice-and-
comment decisionmaking process pursuant to FLPMA (and NEPA).8
Ordinarily, an AML can only be modified through a formal amendment or
revision to the RMP,see 43 C.F.R. 1610.55, 1610.56; AR255, but in any
event may notbe modified without an extensive planning process with notice and
public comment, as well as compliance with NEPA, and which provides and [i]n-
depth . . . evaluation of resource monitoring and population inventory data.
AR263;see also AR3349; 43 U.S.C. 1712;In Def. of Animals, 909 F. Supp. 2d at
1192 (AMLs are determined through revisions to the applicable [RMP].).
Here, BLM plowed ahead with its decisionwhich had the practical effect
of reducing these populations far below the express AML requirements of the
operative RMPswithout amending or revising the RMPs, evaluating the
necessary resource monitoring or population inventory data, providing notice and
8BLM made the puzzling assertion that FLPMA does not apply here because
[t]he management direction set forth in the RMPs, including that related to
[AMLs], do not apply toprivatelands, AR3359(emphasis added), whichwillfully ignores that more than a million acres of public lands were also involved.
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comment on the de factoAML reduction, or engaging in a NEPA process
concerning the AML reduction. Nothing in the 2008 Rawlins RMP or the 1997
Green River RMP excuses BLM from these legal obligations when modifying the
operative AML. See AR694. Hence, BLM was required to formally amend these
RMPs when significantly reducing the AMLs, and in the process evaluate the
requisite data necessary to make that determinationjust as BLM and RSGA
assured the Court the agency would do before any AMLs were modified.RSGA
Case, ECF. No. 88 at 7-8; AR470-72. However, because BLM has abandoned its
commitment and has not even attemptedto comply with FLPMAs RMP
amendment proceduresnor even formally acknowledgedthat it has modified the
AMLs as a factual matterBLMs actions cannot be upheld under FLPMA.9
Nor, for that matter, can BLMs roundup and ongoing management of wild
horses in these HMAs at numbers far below the legally operative AMLsraising
serious genetic diversity concerns in the process (only 39 horses in one HMA and
91 horses in another)even remotely comport with the WHAs mandate that [a]l l
management activities shall be at the minimalfeasiblelevel. 16 U.S.C. 1333(a)
(emphases added). Before removing horses to below low AML, BLM was required
9At bare minimum, BLM has failed on this record to supply the reasoned
analysis required to explain the agencys stark departure in this decision from its
own prescribed AMLs or for its failure to adhere to its own operative RMPs, andthe decision therefore fails even under rudimentary administrative law principles.
See State Farm, 463 U.S. at 43, 56-57.
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by this dictate to consider less draconian options that would accord with Section 3
and, in the process, protect wild horses in these HMAs within their AMLs.10
For all of these reasons, BLM is acting arbitrarily and capriciously, and not
in accordance with law. See 5 U.S.C. 706(2).
IV.
BLM IS VIOLATING NEPA IN MYRIAD WAYS.
Mirroring its WHA construction whereby BLM dispensed with its
obligations onpublic land by relying on a provision that is explicitly restricted to
actions onprivate land, BLM jettisoned its duty under NEPA to prepare an EIS or,
at minimum, an EA to analyze the significant environmental effects of
permanently removing 1,263 wild horses from the range (including non-excess
horses frompublic land) on the basis of a categorical exclusion that is limitedon
its faceto avoiding NEPA review only for [r]emoval[s] of wild horses or burros
fromprivatelands at the request of the landowner.AR3360 (emphasis added)
(citing AR3389). The categorical exclusion invoked by BLM to avoid preparing an
EIS or EA does not even purport to coverpermanent wild horse removal from
public land. AR3360. Just as BLM cannot turn a blind eye to its actions onpublic
10To be sure, there are far less drastic alternatives topermanently removing
hundreds of non-excess horses frompublic land under Section 4. For example,BLM couldas it did when previously managing wild horses in the Checkerboard,
including in the 2013 Adobe Town/Salt Wells decisionround up all horses on theCheckerboard pursuant to both Sections 3 and 4, permanently remove only those
horses deemed excess, and return the remaining horses to the public blocks of
land in these HMAs. BLM would have had to confront this reasonable alternative(and others) had it not skirted its duty to conduct NEPA review here.
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lands in administering the WHA, it likewise may not deliberately ignore the effects
of its actions under NEPA simply because BLM opts to combine separate activities
concerning public lands and private lands in the same decisionmaking process.
BLMs roundup decision and ongoing management in the Checkerboard
violateNEPA in various ways. First, BLMs unprecedented invocation of a
categorical exclusion thaton its faceonly applies to removal of wild horses
fromprivateland cannot serve as a lawful basis for escaping NEPA review as to
the portion of BLMs decision that addressespermanent removal of wild horses
frompublic land. See AR3360. Thus, because BLM has attempted to fit a small
square peg into a large round hole in avoiding NEPA review, the Court must reject
BLMs invocation of this categorical exclusion as facially inapplicable. See, e.g.,
Wilderness Watch v. Mainella, 375 F.3d 1075, 1095 (11th Cir. 2004) (rejecting
categorical exclusion for routine and continuing government business because
[o]btaining a large van to accommodate fifteen tourists hardly appears to be a
routine and continuing form of administration and maintenance).11
11In its 2013 Adobe Town/Salt Wells Creek EA, BLM admitted that the
categorical exclusion for private land actions only applied to the portion of BLMsdecision addressing removal of horses from RSGAs private land but that NEPA
required at least an EA with respect to the portion of BLMs decision addressingpermanent wild horse removals frompublic land. See AR642. BLM has not even
attempted to reconcile its admission in 2013 that it was required to prepare an EA
to be in accordance with [NEPA] for the public landportion of that decision, id.,with its failure to take any similar steps to comply with NEPA here.
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Second, even if BLM hadadopted in its Department Manual a categorical
exclusion applying to permanent removals of wild horses from public lands
which it has not,see AR3389it would nevertheless be inapplicable under the
circumstances of BLMs actions in this case. This is because an agency may not
invoke a categorical exclusion where extraordinary circumstances exist and a
normally excluded action may have a significant environmental effect. 40 C.F.R.
1508.4;see alsoUtah Envtl. Cong. v. Bosworth, 443 F.3d 732, 736 (10th Cir.
2006) (explaining that a proposed action is precluded from categorical exclusion
if extraordinary circumstances existand will result in environmental effects).
Here, it is beyond legitimate dispute that thepermanentremoval of 1,263
wild horsesincluding many frompublic landssignificantly impacts the
environment. For example, as BLMs own EA from a functionally identical (albeit
smaller) roundup in 2013 concedes, a roundup of this magnitude inevitably affects
myriad natural resources in these HMAs, including forage, water, vegetation, and
other wildlife requiring analysis in an EA. See AR656-58 (listing various potential
impacts of roundups). These impacts are compounded by the significant effects
that roundups have on federally protected wild horses and their wild horse band
social structures that have developed over years. Similarly concerning is that BLM
has never analyzed the specific (and serious) impact on genetic diversity of
managing wild horses at levels far below the AMLs established in the governing
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RMPsespecially given that two HMAs (39 and 91 horses, respectively) arefar
belowBLMs own threshold of a population size of about 150-200 animals that
is necessary to maintain an acceptable level of genetic diversity. AR267.12
Indeed, this is why BLMs own directives expressly require an EIS or an EA
before the permanent removal of anywild horses from public lands: [a]n
appropriate NEPA analysis and issuance of a decision is required prior to removing
the animals. AR3396;see also AR3399 (BLM shallconduct an appropriate site-
specific analysis of the potential environmental impacts that could result from
implementation of a proposed gather in accordance with [NEPA]).By the same
token, this explains why the agencys longstanding practice has beento invariably
12Although the Court need only resolve whether a categorical exclusion is
appropriate here, and thus need not decide whether the appropriate NEPA vehicle
on remand is an EA or an EIS, Petitioners point out that the same reasons for whyextraordinary circumstances prohibit the use of a categorical exclusion heresupport the conclusion that an EIS is required. Not only is BLMs new WHA
interpretation and first-ever categorical exclusion for the permanent removal ofwild horses from public land certain to set a precedent for BLM management with
significant effects that will carry through to future decisions in these HMAs (and
elsewhere), 40 C.F.R. 1508.27(b)(6), but managing these herds far below AMLalso creates highly uncertain,unknown,and controversialrisks to these
populations genetic viability, 40 C.F.R. 1508.27(b)(4)-(5), and threatens a
violation of Federal . . . law in the WHA and FLPMA, 40 C.F.R. 1508.27(b)(10). This is only underscored by statements from BLMs own officials
indicating that this decision constitutes a fundamental changein how the agency
interprets the WHA and NEPA, AR3341, that managing below AML has not
previously been done in Wyoming,AR3349, and that this sort of change to theAML will require analysis that is typically done in an EIS through the land use
planning processand will . . . be very controversial.Id.(emphasis added).
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prepare at least an EA for allpermanent wild horse roundups on public land. See
e.g. AR642 (admitting that an EA was required to be in accordance with NEPA
for the 2013 Adobe Town/Salt Wells Creek roundup); AR3341 (referring to
BLMs EA analyses for a typical herd management gather);Fund for Animals. v.
BLM, 460 F.3d 13, 16 (D.C. Cir. 2006) (noting that BLM prepares a detailed
gather plan, including an environmental assessment in compliance with [NEPA]
before permanently removing horses from the range).13
Thus, particularly given BLMs own recognition that removing all wild
horses from the checkerboard lands will have some impacts that are typically
explored in our EA analyses for a typical herd management gather for this HMA,
AR3341, BLM acted arbitrarily and capriciously by determining that no
extraordinary circumstances exist that would potentially hav[e] effects that may
significantly affect the environment. AR3364-65. To the contrary, BLMs
precedent-setting decision in which itfor the fi rst timeeverfailed to prepare
even an EA to assess the effects of the permanent removal of wild horses from
public lands, especially where there are serious genetic diversity concerns, must be
invalidated as arbitrary, capricious, and contrary to NEPA as precisely the kind of
uninformed agency actionthat NEPA prohibits. Custer Cnty. Action Assn. v.
13Yet againthis time under NEPABLM departed from its own directives and
prior practice without setting forth any lawful justification, and its actions thereforecannot pass muster under the APA. State Farm,463 U.S. at 56-57.
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Garvey,256 F.3d 1024, 1034 (10th Cir. 2001);Mainella, 375 F.3d at 1095-96
(striking down categorical exclusion because it creates a potential precedent for
future action and. . . threaten[s] to violate the Wilderness Act.).For these
reasons, BLMs actions are also in flagrant violation of NEPA.14
CONCLUSION
Petitioners respectfully request that the Court declare BLM in ongoing
violation of the WHA, NEPA, and FLPMA; set aside BLMs July 2014 DR and
CE; and remand the matter to BLM with instructions to remedy the deficiencies
identified in the Courts ruling and to take no further action inconsistent with that
ruling until legal compliance has been fully achieved.
14Because BLM refused to prepare an EIS or EA (and thus never solicited public
comment on a draft EIS or EA), BLM also violated NEPA by its complete failure
to involve . . . the publicin its decision, and this wholesale neglect . . .undermines the very purpose of NEPA. Citizens for Better Forestry v. U.S. Dept
of Agric., 341 F.3d 961, 970-71 (9th Cir. 2003).
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Respectfully submitted,
__/s/__________________________
William S. Eubanks II (pro hac vice)(D.C. Bar No. 987036)
Caitlin T. Zittkowski (pro hac vice)(CA Bar No. 290108)
MEYER GLITZENSTEIN & CRYSTAL
1601 Connecticut Ave. N.W., Suite 700Washington, D.C. 20009
(202) 588-5206
_/s/___________________________Timothy C. Kingston
(WY Bar No. 6-2720)
LAW OFFICE OF TIM KINGSTON LLC408 West 23rdStreet, Suite 1
Cheyenne, WY 82001-3519(307) 638-8885
Counsel for Petitioners
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CERTIFICATE OF SERVICE
I hereby certify that on December 19, 2014, I electronically filed the
foregoing PETITIONERS OPENING BRIEF and ADDENDUM with the Clerk of
the Court using the CM/ECF system which will send notification of this filing to
all counsel of record.
Respectfully submitted,
/s/ William S. Eubanks II
William S. Eubanks II
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ADDENDUM TABLE OF CONTENTS
Federal Statutes
Administrative Procedure Act...1
Federal Land Policy Management Act......2
National Environmental Policy Act.60
Wild Free-Roaming Horses and Burros Act67
Federal Regulations
BLMs Federal Land Policy Management Act Regulations...75
CEQsNational Environmental Policy Act Regulations.91
BLMs Wild Free-Roaming Horses and Burros Act Regulations.....123
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Administrative Procedure Act
5 U.S.C. 706(2)
To the extent necessary to decision and when presented, the reviewing court shall decide all
relevant questions of law, interpret constitutional and statutory provisions, and determine themeaning or applicability of the terms of an agency action. The reviewing court shall
(1) compel agency action unlawfully withheld or unreasonably delayed; and
(2) hold unlawful and set aside agency action, findings, and conclusions found to be
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or short of
statutory right;
(D) without observance of procedure required by law;
(E) unsupported by substantial evidence in a case subject to sections556and557
of this title or otherwise reviewed on the record of an agency hearing providedby statute; or
(F) unwarranted by the facts to the extent that the facts are subject to trial de novo
by the reviewing court.
In making the foregoing determinations, the court shall review the whole record or those parts of
it cited by a party, and due account shall be taken of the rule of prejudicial error.
ADD 1
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http://www.law.cornell.edu/uscode/text/5/556http://www.law.cornell.edu/uscode/text/5/556http://www.law.cornell.edu/uscode/text/5/556http://www.law.cornell.edu/uscode/text/5/557http://www.law.cornell.edu/uscode/text/5/557http://www.law.cornell.edu/uscode/text/5/557http://www.law.cornell.edu/uscode/text/5/557http://www.law.cornell.edu/uscode/text/5/556 -
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TITLE I
SHORT TITLE,
DECLARATION OF POLICY, AND
DEFINITIONS
SHORT TITLE
Sec. 101. [43 U.S.C. 1701 note] This Act may be cited
as the Federal Land Policy and Management Act
of 1976.
DECLARATION OF POLICY
Sec. 102. [43 U.S.C. 1701] (a) The Congress declares
that it is the policy of the United States that
(1) the public lands be retained in Federal own
ership, unless as a result of the land use planning
procedure provided for in this Act, it is determined
that disposal of a particular parcel will serve the
national interest;
(2) the national interest wil