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UNITED STATES DISTRICT COURTFOR 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 REPLY BRIEF
Timothy Kingston
LAW OFFICE OF TIM KINGSTON,LLC
408 West 23rd Street, Ste. 1
Cheyenne, WY 82001
TEL: (307) 638-8885
FAX: (307) [email protected]
William S. Eubanks II
Caitlin T. Zittkowski
MEYER GLITZENSTEIN &CRYSTAL
1601 Connecticut Ave. NW, Ste. 700
Washington DC, 20009
TEL: (202) 588-5206FAX: (202) 588-5049
[email protected]@meyerglitz.com
Counsel for Petitioners
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TABLE OF CONTENTS
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
GLOSSARY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
I. PETITIONERS CLAIMS ARE NOT MOOT.. . . . . . . . . . . . . . . . . . . . . . . 2
A. This Case Is Not Moot Because Meaningful Relief Remains
Available To Remedy Petitioners Ongoing Injuries Caused
By The 2014 Roundup... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
B. This Case Is Also Justiciable Because The Court Could Order
BLM To Remedy Its Alleged NEPA Violations... . . . . . . . . . . . . . . . 9
C. Even If Relief Were Not Available, This Case Is Not Moot... . . . . . 11
II. RESPONDENTS CANNOT ESCAPE THE CLEAR APPLICATION
OF CHEVRON TO THE PLAIN LANGUAGE OF THE WHA... . . . . . . . 14
A. Petitioners Seek To Harmonize Sections 3 And 4 Of The WHA,
Rather Than Ignore Either Statutory Obligation (As BLM Has).. . . 15
B. Respondents WHA Construction Fails Under Chevron.. . . . . . . . . 18
III. BLMS DE FACTO AML REDUCTION FLOUTS VARIOUS
LAWS... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
IV. BLM'S CATEGORICAL EXCLUSION VIOLATES NEPA.. . . . . . . . . . . 26
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
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TABLE OF AUTHORITIES
CASES PAGE
Airport Neighbors Alliance v. United States,90 F.3d 426 (10th Cir. 1996) ............................................................................9, 11
Alaska Prof. Hunters v. FAA,177 F.3d 1030 (D.C. Cir. 1999)............................................................................23
Am. Petr. Inst.v. EPA,52 F.3d 1113 (D.C. Cir. 1995)..............................................................................22
Buchheit v. Green,705 F.3d 1157 (10th Cir. 2012) ............................................................................13
Burbank Anti-Noise Group v. Goldschmidt,623 F.2d 115 (9th Cir. 1980) .................................................................................. 9
California v. USDA,575 F.3d 999 (9th Cir. 2009) ................................................................................27
Citizens for Better Forestry v. USDA,
481 F. Supp. 2d 1059 (N.D. Cal. 2007) ................................................................28
Coal Co. v. Fed. Mine Safety & Health Rev. Comm's,642 F.3d 234 (D.C. Cir. 2011)..............................................................................25
C.W. Mining Co.,641 F.3d 1235 (10th Cir. 2011) .............................................................................. 4
Day v. Bond,500 F.3d 1127 (10th Cir. 2007) .............................................................................. 4
Envtl. Def. Fund v. Marsh,651 F.2d 983 (1981) .............................................................................................30
Ethyl Corp. v. EPA,51 F.3d 1053 (D.C. Cir. 1995)..............................................................................22
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Fowler v. United States,647 F.3d 1232 (10th Cir. 2011) .............................................................................. 3
Garvey v. Freeman,397 F.2d 600 (10th Cir. 1968) ..............................................................................21
Grand Canyon Trust v. FAA,290 F.3d 339 (D.C. Cir. 2002)..............................................................................29
Green v. Haskell Cnty. Bd. of Comm'rs,568 F.3d 784 (10th Cir. 2009) ..............................................................................12
Halverson v. Slater,
129 F.3d 180 (D.C. Cir. 1997)..............................................................................23
Herriman v. Bell,590 F.3d 1176 (10th Cir. 2010) ..................................................................... 13, 14
High Sierra Hikers Ass'n v. Blackwell,390 F.3d 630 (9th Cir. 2004) ................................................................................28
In Defense of Animals v. Salazar,808 F. Supp. 2d 1254 (E.D. Cal. 2011) .................................................................. 8
In Defense of Animals v. Salazar,648 F.3d 1012 (9th Cir. 2011) ................................................................................ 8
Kardules v. City of Columbus,95 F.3d 1335 (6th Cir. 1996) .................................................................................. 5
Morton v. Mancari,417 U.S. 535 (1974) .............................................................................................24
Nat'l Parks Conservation Ass'n v. FAA,998 F.2d 1523 (10th Cir. 1993) ............................................................................11
Rezaq v. Nalley,677 F.3d 1001 (10th Cir. 2012) .............................................................................. 3
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Sparrow v. IRS,949 F.2d 434 (D.C. Cir. 1991)..............................................................................24
United States v. Price,361 U.S. 304 (1960) .............................................................................................24
Utah Envtl. Cong. v. Russell,518 F.3d 817 (10th Cir. 2008) ................................................................... 9, 10, 27
Watt v. Alaska,451 U.S. 259 (1981) .............................................................................................24
West v. DOT,206 F.3d 920 (9th Cir. 2000) ................................................................................28
Wilderness Watch v. Mainella,375 F.3d 1085 (11th Cir. 2004) ............................................................................27
STATUTES
5 U.S.C. 706 ................................................................................................... 13, 21
16 U.S.C. 1331-1340 ..................................................................................passim
42 U.S.C. 4321-4370h .......................................................................................... 1
43 U.S.C. 1701-1787 ............................................................................................ 1
REGULATIONS
40 C.F.R. 1508.8 ...................................................................................................30
43 C.F.R. 4720.2-1 ......................................................................................... 18, 23
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v
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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INTRODUCTION
In their opening brief, Petitioners explained the myriad ways in which the
Bureau of Land Management (BLM) has violatedand continues to violatethe
Wild Free-Roaming Horses and Burros Act (Wild Horse Act or WHA), 16
U.S.C. 1331-1340, by adopting a countertextual statutory interpretation whereby
BLM is authorized to permanently remove federally protected wild horses from
public land pursuant to Section 4 of the Act, despite the fact that Congress plainly
limited BLMs authority under thatprovision to removing horses from privately
owned land.Id. 1334 (emphasis added). In the process, BLM has also willfully
disregarded the specific legislative dictates that do apply to these public landsi.e.,
the mandatory obligations Congress imposed on BLM in Section 3 of the Act that
serve as legal prerequisites before any wild horses may be removed frompublic
land.Id. 1333(b)(2). Petitioners also explained how BLMs actions violated the
National Environmental Policy Act (NEPA), 42 U.S.C. 4321-4370h, the
Federal Land Policy and Management Act (FLPMA), 43 U.S.C. 1701-1787,
and BLMs own Resource Management Plans (RMPs).
In response, rather than seriously grappling with those issues, BLM has
primarily relied on a jurisdictional defense, which cannot be sustained on these
facts under Supreme Court or Circuit precedent. On the merits, Respondents have,
for the first time, asserted that the WHA is ambiguouswhich is nothing more than
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a transparent attempt to manufacture ambiguity to escape the clarion terms of the
Act in order to serve the agencys own administrative convenienceobjectives. But,
as previously explained, policy considerations have no place in the Chevron
framework, as courts are bound to enforce Congress clear statutory intent.
Accordingly, until BLM seeks and obtains relief from Congress through
legislative amendment, this Court has no choice but to enforce the plain terms of
the WHA, which simply does notauthorize removal of wild horses frompublic
lands under Section 4. See Friends of the Earth v. EPA, 446 F.3d 140, 142 (D.C.
Cir. 2006) (stating that if an agency believes that statutory compliance would lead
to undesirable consequences,then it must. . . take its concerns to Congress).
I. PETITIONERS CLAIMS ARE NOT MOOT.
Petitioners have explained that this case is justiciable because Petitioners
have established standing and this matter presents a live controversy. See ECF No.
67 at 23. Although not joined by the State of Wyoming or the Rock Springs
Grazing Association (RSGA), BLMwhile not disputing Petitionersstanding or
their ongoing injuries-in-fact caused by BLMhas now asserted that this case is
moot. See ECF No. 71 at 17-25. That assertion, however, is predicated on an
erroneous recitation of the proper legal standard and a mistaken application of the
facts to that legal standard. Hence, for the following reasons, this case presents a
live controversy and the Court has jurisdiction to resolve the merits of this dispute.
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A.
This Case Is Not Moot Because Meaningful Relief Remains
Available To Remedy Petitioners Ongoing Injuries Caused By
The 2014 Roundup.
In no uncertain terms, the Supreme Court has explained that a case becomes
moot only when it is impossible for a court to grant any effectual relief whatever to
the prevailing party. Chafin v. Chafin, 133 S. Ct. 1017, 1023 (2013) (emphases
added) (quotation marks and citation omitted). Thus, [a]s long as the parties have
a concrete interest, however small, in the outcome of the litigation, the case is not
mootif any relief whatsoever remains available to redress their alleged injuries.
Id. (emphasis added) (quotation marks and citation omitted).
Despite BLMs unsupported assertion that the mere availability of an
equitable remedy is not the test for [mootness] in this Circuit, ECF No. 71 at 20,
the test employed by the Tenth Circuit is, necessarily, identical to and consistent
with the standard established by the Supreme Court: [a]case is not moot when
there issomepossible remedy, even a partial remedy or one not requested by the
plaintiff. Rezaq v. Nalley, 677 F.3d 1001, 1010 (10th Cir. 2012) (citations and
quotation marks omitted);see alsoFowler v. United States, 647 F.3d 1232, 1242
(10th Cir. 2011) (A case is moot when it is impossiblefor the court togrant any
effectual relief whateverto a prevailing party.) (emphasis added) (quotation marks
and citation omitted). Of course, in determining whether jurisdiction exists, the
Court must presume that Petitioners will prevail on the merits, thereby focusing the
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inquiry on whether the Court could order any relief to Petitionersas the
prevailing partythat would redress their alleged injuries. See, e.g.,Day v. Bond,
500 F.3d 1127, 1137 (10th Cir. 2007) (explaining that we assume, during the
evaluation of the [courts jurisdiction], that the plaintiff will prevail on his merits
argumentthat is, that the defendant has violated the law.).1
Under the prevailing legal test, there can be no legitimate dispute that there
exists at least some possible remedythat the Court could impose on BLM in
order to redress some of Petitioners injuries, should Petitioners prevail on the
merits. For example, Petitioners have provided sworn declarations demonstrating
the myriad cognizable injuries they continue to suffer as a result of BLMs fall
2014 roundup that is challenged in this case. See ECF Nos. 67-1, 67-2, 67-3, 67-4.
These ongoing harms to Petitionerswhich, again, Respondents have not
contested as insufficient to confer standing (nor could they)include, inter alia,
aesthetic and economic injuries due to BLMs management of these HMAs at far
below the legally required AMLs, which significantly impairs Petitioners ability to
view, observe, and photograph these wild horse populations; the aesthetic and
emotional losses related to the removal of specific wild horses to whom Petitioners
1BLMs peculiarand erroneousassertion that the mere availability of an equitable remedy isnot the test for [mootness] in this Circuit, ECF No. 71 at 2, is belied by dozens of Circuit casesmaking clear that the availability of a remedy is, in fact, the touchstone for determining mootness.See, e.g.,In re C.W. Mining Co., 641 F.3d 1235, 1239 (10th Cir. 2011) (explaining that themootness question turns on what relief is availableto [a party] if it were to prevail and thatwhen it is not impossible for the court to grant some measure of effective relief, a case is not
moot) (emphasis added) (quotation marks and citations omitted).
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have longstanding personal and professional relationships; and aesthetic and
pecuniary harms to Petitioners associated with the adverse effects on their ability to
view, photograph, and otherwise observe the now skittish and human-averse wild
horses in these HMAs after BLMs invasiveroundup.Id.
Especially given that the Petition for Review in this case sought extremely
broad injunctivereliefin addition to declaratory reliefthere is certainly no basis
for a mootness finding. See ECF No. 1, Prayer for Relief. To the contrary, among
other available remedies, Petitioners have testified in sworn declarations that the
Court could redress their injuriesat least in partby ordering BLM to return to
these HMAs some of the wild horses that Petitioners assert were unlawfully
removed from public lands without observance of federal law. See ECF No. 67-1
11-12; ECF No. 67-2 14; ECF No. 67-3 9; ECF No. 67-4 11.2
Importantly, BLM has not seriously disputed the availability of such relief; if
anything, BLM has underscored the availability of such relief by conceding that the
wild horses that were removed from these HMAs in fall 2014 remain in BLMs
care in Wyoming and adjacent states. See ECF No. 71 at 21 (citing Foster Decl.
6). Thus, in light of the fact that BLM retains current ownership over the subject
2Because there still remains meaningful injunctive relief available to the Court, the few casescited by BLM finding mootness where the plaintiff alleged only declaratory relief are plainlyinapposite and have no bearing on this matter. See ECF No. 71 at 20;see alsoKardules v. City ofColumbus,95 F.3d 1335, 1343-44 (6th Cir. 1996) (explaining that where declaratory relief is theonly potential remedy, it is often difficult to draw a line between actual controversies andattempts to obtain advisory opinions on the basis of hypothetical controversies).
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horses, the inevitable conclusion under the prevailing legal test is that Petitioners
case is notmoot because it is not impossiblefor [the] court to grant anyeffectual
relief whatever, should Petitioners prevail. Chafin, 133 S. Ct. at 1023.
Rather than dispute the availability of relief should Petitioners prevail, BLM
presents two arguments that are irrelevant to the mootness determination. First,
BLM asserts that returning horses that have been held in captivityback into the
wild poses a number of significant considerations, such that it could be difficult
and potentially unsafe to return these horses to the range. ECF No. 71 at 21.3
Although Petitioners dispute the premise underlying BLMs contention
namely, that it would be potentially unsafe to return wild horses to the range after
only a few months in captivityBLMs argumentconflates the critical difference
between a courts role in determining whether a case is moot (i.e., is anyrelief
available should Petitioners prevail?) with a courts role in determining at the
conclusion of the merits what specific remedy to adopt (i.e., assuming Petitioners
have now prevailed, which of the available remedies should be adopted and subject
to what conditions?). This is precisely why the Court must assume for purposes of
3BLMs assertionthat it could be unsafe to return these horses to the range after only a fewmonths in captivity is entirely fabricated and contradicts BLMs own management practices. Forexample, BLM returned dozens of wild horses to the Saylor Creek HMA in Oregon after morethan one yearin captivity. See BLM, Saylor Creek HMA, available athttp://www.blm.gov/id/st/en/prog/wild_horses_/hmas/saylor_creek_hma.html(stating that the herd was gathered in 2010after another devastating wildfire but 30 horses were returned to the HMA in the early fall of
2011). Likewise, BLMs purported concern about returning (male) geldings to the range cannotserve as a basis for prohibiting the return of maresto the range, and, in any case, disregards thatthe consent decree explicitly contemplates managing geldings in these HMAs. See AR468.
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http://www.blm.gov/id/st/%20en/prog/wild_horses_/hmas/saylor_creek_hma.htmlhttp://www.blm.gov/id/st/%20en/prog/wild_horses_/hmas/saylor_creek_hma.htmlhttp://www.blm.gov/id/st/%20en/prog/wild_horses_/hmas/saylor_creek_hma.htmlhttp://www.blm.gov/id/st/%20en/prog/wild_horses_/hmas/saylor_creek_hma.htmlhttp://www.blm.gov/id/st/%20en/prog/wild_horses_/hmas/saylor_creek_hma.htmlhttp://www.blm.gov/id/st/%20en/prog/wild_horses_/hmas/saylor_creek_hma.html -
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the mootness determination that Petitioners willprevail,see supra at 3-4, which is
entirely distinct from the Courts merits determination and its adoption of remedies
commensurate to the violations found. Thus, this assertion only becomes relevant at
the remedy stage and is not germane to analyzing mootness.4
Second, BLM asserts that returning any of the wild horses removed in fall
2014 to even the portions of these HMAs that consist of solid blocks ofpublicland
would violate Section 4 of the WHA and the consent decreebecause those horses
will invariably migrate back to RSGAs lands.ECF No. 71 at 21. This is not so.
As a threshold matter, BLM again seeks to inject into the mootnessinquiry a
legal question that can only be answered on the meritsand has nothing to do with
the availabilityof relief. In any case, as explained, managing federally protected
wild horses on solid public land blocks within these HMAs consistent with the
agencysAMLs cannot even remotely constitute a violation of the WHA (or the
consent decree) since there is no legal duty or authority to preemptively avoid the
potential straying of wild horses from public land. See Fallini v. Hodel, 783 F.2d
4If the Court has any questions about the significant considerations that could purportedly flowfrom a Court order requiring BLM to return some horses to the range, those issues could besorted out in briefing on remedy after the Court issues its merits ruling. For example, BLM hascursorily asserted that returning some wild horses to the range would result in increased costs tothe BLM, ECF No. 71 6, which is impossible to reconcile with BLMs own datademonstrating the exorbitant financial cost of managing horses in holding facilities as comparedto managing them within AMLs in the wild. See Exhibit E at 10 (noting that it costs $46,252 perunadopted horse in captivity, meaning that the 627 non-excess horses that BLM removed in fall2014 could cost BLM and taxpayers up to $29,000,000). In any event, the Court could entertainthe relative equities (e.g., costs) of particular forms of relief in post-merits remedy briefing.
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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 notcharge 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 . . . [BLM] must go back again to retrieve the animals,
that is nevertheless [its] duty prescribed by the statute.).
Moreover, BLMs assertion that returning even a single horse to the solid
block ofpublic land in these HMAs would violate Section 4 of the WHA due to
potential straying borders on the nonsensical; if that were true, BLM is currently
violating this provision with respect to the 649 horses that BLM admits it left in
these HMAs after the fall 2014 roundup. See ECF No. 71-1 4. Hence, for several
reasons, BLM has failed to refute the basic fact that at leastsome injunctiverelief is
availableto redress Petitioners injuriesa far different question from whether the
Court will (or should) ultimately adopt such relief in its final order.5
5Tellingly, BLM has raisedand lostthese arguments before. InIn Defense of Animals v. U.S.Department of the Interior, the court explained that the injury is Plaintiffs diminished ability toenjoy wild horses and burros on the [HMA], and [b]ecause the wild horses . . . removed fromthe range have not been returned, this Court finds that Plaintiffs do in fact continue to suffer thelost enjoyment of those animals, which is an ongoing injury. 808 F. Supp. 2d 1254, 1266(E.D. Cal. 2011). BLM asserted that all possible [remedial] options are foreclosed because allgelding operations were completed and because the [WHA] prevents the return of wild horsesto an overpopulated range.Id.Nevertheless, the court held that it could provide effective reliefin the form of relocation of the animals to the [HMA] assuming Plaintiffs win on the merits.Id.BLMs criticism of that ruling as possibly no longer good law is erroneous,see ECF 71 at 22n.4, as the Ninth Circuit did not review the district courts mootness ruling but instead foundmoot a preliminaryinjunction . . . because the roundup sought to be enjoined has taken place.648 F.3d 1012, 1013 (9th Cir. 2011) (emphases added). This distinction is crucial, aspermanent
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B.
This Case Is Also Justiciable Because The Court Could Order
BLM To Remedy Its Alleged NEPA Violations.
Although the availability of relief alone is sufficient to overcome mootness
here, Petitioners also provide another basis upon which the Court could redress
Petitioners injuries in the context of their NEPA claims.
The Tenth Circuit has consistently held that a NEPA case is not rendered
moot simply because the agency has carried out the activity, so long as the court
can providesomeremedy if the plaintiffs prevail on the merits. See, e.g.,Airport
Neighbors Alliance, Inc. v. United States, 90 F.3d 426, 428-29 (10th Cir. 1996)
(explaining that courts still consider NEPA claimsconcerning completed actions
when the court can provide some remedy if it determines that an agency failed to
comply with NEPA, and finding case not moot because if we find that the
Respondents failed to comply with NEPA, we could order that the runway be
closed or impose restrictions on its use); Utah Envtl. Cong. v. Russell, 518 F.3d
817, 824-25 (10th Cir. 2008) (explaining that even where it is too late to . . .
provide a fully satisfactory remedy the availability of a partial remedy will prevent
the case from being moot) (citations omitted);Burbank Anti-Noise Group v.
Goldschmidt,623 F.2d 115, 116 (9th Cir. 1980) (holding action challenging already
completed sale of property not moot when the actions could be undone).
injunctive relief (e.g., returning horses to the wild) may still be available even wherepreliminaryinjunctive relief aimed solely at preserving thestatus quo anteis no longer available.
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This proposition is especially pertinent in this case since Petitioners are
arguing on the merits that BLM avoided its legal duty to prepare anyNEPA review
whatsoeveran Environmental Impact Statement (EIS) or an Environmental
Assessment (EA)and instead took the unprecedented action of invoking a
categorical exclusion that is expressly limited to removal of horses from private
landto remove hundreds of wild horses from publicland. Hence, as noted above,
not only could the Court order BLM to return to the HMAs at least some of the
illegally removed horses if Petitioners prevail, but the Court could also nullify the
precedent set by BLMs decision by ordering BLM to clarify in its relevant NEPA
handbooks and manuals that the categorical exclusion pertaining toprivateland
wild horse removals cannot legally be applied to actions onpublic land.
Alternatively, the Court could impose restrictions on BLMs ongoing
management of the remaining wild horses in these HMAs, including by prohibiting
BLM from removing any horses from the rangeat least on public landuntil the
relevant population numbers are back within the legally required AMLs.
Given the panoply of remedial optionsincluding various management
conditions and restrictionsavailable to the Court to remedy the alleged NEPA
violations, this case is not moot. See, e.g.,Russell, 518 F.3d at 824-25 (finding
plaintiffs NEPA challenge to the invocation of a categorical exclusion not moot
even where the contractor has already completed its one-time magnesium chloride
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application because the agency retains the flexibility to implement the project
design);Natl Parks Conservation Assn v. FAA,998 F.2d 1523, 1525 n.3 (10th
Cir. 1993) (finding case challenging construction project not moot after
construction was completed when restrictions could be placed on the use of the
project);Airport Neighbors Alliance, 90 F.3d at 428-29 (same).
C.
Even If Relief Were Not Available, This Case Is Not Moot.
Because the Court has various forms of relief available to remedy
Petitioners injuries, the Court need not reach the question of whether any mootness
exceptions apply. In any event, Petitioners briefly explain whyif this case were
otherwise moot (which it is not)it would nevertheless be justiciable.
First, despite BLMs unsubstantiated assertions that the agency is unlikely to
authorize any future actions invoking the legal provisions underpinning the
decision challenged in this case,see ECF 71 at 24-25, BLM cannot overcome its
substantial burden of demonstrating that it is impossible,or even unlikely given that
each BLM field office operates independently, for the allegedly unlawful conduct
challenged by Petitioners to recur. As the Supreme Court has explained, [t]he
heavy burden of persua[ding] the court that the challenged conduct cannot
reasonably be expected to start up again lies with the party asserting mootness.
Friends of the Earth v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189 (2000). In
turn, a defendant claiming that its voluntary compliance moots a case bears the
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formidable burden of showing that it is absolutely clearthe allegedly wrongful
behavior could not reasonably be expected to recur.Id. at 190 (emphasis added).
Indeed, BLM can offer the Court no such certainty that the challenged
conduct will not recur, stating that it ispossible a gather may be necessaryin the
Great Divide Basin, Salt Wells Creek, or Adobe Town HMAs; it is likelythat no
gather will be authorized for the White Mountain HMA; and if a gather is
authorized in 2015 . . . [it] maybe very different from the challenged decisions.
ECF No. 71 at 23-25 (emphases added). In light of these equivocal statements from
BLMi.e., the party with the formidable burden of showing that it is absolutely
clear that the challenged conduct will not recurthis case is not moot.6
Second, for the same reasons that BLM cannot fully assure this Court that it
will not engage in the allegedly unlawful conduct with respect to future gathers in
these HMAs, another mootness exception applies because the challenged conduct
would thus be capable of repetition but evading review. As the Tenth Circuit has
explained, this exception applies where (1) the duration of the challenged action
6It is striking that BLM now appears to be backing away from the unprecedented approachchallenged here. BLM suggests that any future roundups in these HMAs would employ differentlegal mechanisms under the [WHA] and NEPA and thus the legal parameters of those decisionsmay look very different than BLMs 2014 decision. ECF 71 at 24 -25. But BLMs positionbefore this Court is that employing those different mechanismsi.e., abiding by Section 3 of theWHA and preparing an EIS or EA under NEPAwould violate Section 4 of the WHA and theconsent decree. This is yet another instance of BLM flip-flopping positions to serve its owninterests before this and other courts,see ECF 67 at 34-35, which only highlights the arbitraryand capricious nature of the decision under review. At any rate, the fact that BLMs future actions
mightpass muster cannot moot this case. Green v. Haskell Cnty. Bd. of Commrs, 568 F.3d 784,795 (10th Cir. 2009) (The possibility that a future monument installed under differentcircumstances might pass constitutional muster does not moot the present case).
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[is] too short to be fully litigated prior to its cessation or expiration; and (2) there [is
a] reasonable expectation that the same complaining party will be subjected to the
same action again.Buchheit v. Green, 705 F.3d 1157, 1160 (10th Cir. 2012)
(citations omitted). Petitioners easily satisfy both prongs of this test.
There is no question that, if the Court found this case moot without resolving
the merits simply because BLM pressed forward with the removal only weeks after
issuing the Decision Record and before the Court could hear this matter on the
merits, Petitioners would forever be relegated to seekingpreliminaryinjunctive
relief immediately upon issuance of BLM decisions but would never have their day
in court for final resolution of the merits based on a full administrative record as
required by the APA. See 5 U.S.C. 706. Simply put, an incomplete and rushed
preliminaryproceeding cannot substitute for a well-considered merits proceeding.
As such, especially under the highly truncated time frame during which the
preliminary injunction proceedings unfolded in this case, the duration of the
challenged action [is] too short to befully litigatedprior to its cessation or
expiration. Green, 705 F.3d at 1160;see alsoHerriman v. Bell, 590 F.3d 1176,
1181-82 (10th Cir. 2010) (applying mootness exceptionbecause full litigation on
the meritswas simply not possible before the election) (emphasis added).
As to the second prong, Petitioners again point to BLMs own equivocal
statements evincing that there is a reasonable expectation that Petitioners may be
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subjected to the same action again since BLM cannot rule out that it would act
under the same authorities by which the agency now asserts it is bound.Id.This
point is especially salient given that BLM has various contractual obligations under
the consent decree, which by its own terms does not terminate until February 2023.
See AR472. Under these facts, there is a reasonable, and indeed likely, expectation
that these issues will once again come to a head and that BLM, left to its own
devices, will resort to the spurious conduct it is defending in this suit. SeeBell, 590
F.3d at 1181-82 (applying mootness exception where defendants were uncertain as
to future plans but were considering acting adverse to plaintiffs interests).
For these reasons, BLM has not proffered any legitimate basis for a mootness
finding. Therefore, the Court should proceed to resolution of the merits.
II. RESPONDENTS CANNOT ESCAPE THE CLEAR APPLICATION
OF CHEVRON TO THE PLAIN LANGUAGE OF THE WHA.
In their opening brief, Petitioners presented compelling reasons why Chevron
Step 1 governs the Courts WHA analysis because Congress clearly delineated
BLMs authority with respect to all wild horses on public land (Section 3) and to
all horses found on private land (Section 4), particularly where Congress set forth
no specific exception in Section 3 related to BLMsmanagement of the Wyoming
Checkerboard. See ECF No. 67 at 24-31. Alternatively, Petitioners explained why
BLMs interpretation could not besustained under Chevron Step 2 for violating
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several canons of statutory construction and running afoul of BLMs own past
interpretations and guiding policies.Id.at 33-37.
In response, BLM and its co-respondents have, for the first time, asserted
that the WHA is ambiguous, in a thinly veiled attempt to escape the application of
Chevron Step 1 where no such ambiguity exists. Just as troubling is Respondents
creation of a straw man, in which Respondents have severely mischaracterized
Petitioners legal position,presumably to deflect the Courts attention from the
crystal clear statutory language that controls here. Thus, before returning to
Respondents merits defenses, it is necessary to dispel a diversionary argument that
should play no role in the Courts resolution of this case.
A. Petitioners Seek To Harmonize Sections 3 And 4 Of The WHA,
Rather Than Ignore Either Statutory Obligation (As BLM Has).
Apparently recognizing the inability of BLMs decision to withstand
Chevronscrutiny, Respondents have taken aim at an argument that Petitioners
simply have not made. In short, Respondents have concocted a legal fictioni.e.,
that Petitioners seek to have BLM comply with Section 3 of the WHA, to the
exclusion of Section 4, when removing horses from the combined public and private
lands of the Checkerboard. See ECF No. 71 at 26 (asserting that Petitioners are
asking BLM to abdicate its Section 4 obligations); id.at 31 (Petitioners ask[]
this Court to ignore Section 4);id. at 30 (Congress did not intend[] Section 3 to
trump Section 4); ECF No. 70 at 16 (Petitioners seek to strip RSGA of its WHA
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remedies); ECF No. 69 at 19 (Petitioners seek to apply the provisions in Section
3 without regard to Section 4s ministerialdirection); ECF No. 69 at 43
(Petitioners seek to nullify BLMs duties under Section 4 of the WHA).
In reality, Petitioners position could not be farther from Respondents
mischaracterization. Rather than arguing that Section 3 of the WHA trumps Section
4, or that BLM should act in a way that ignores, nullifies, or abdicates its Section 4
duties, Petitioners have advanced the commonsense position that BLM must
comply with its mandatory duties under both Sections 3 and 4 if the agency opts to
combine in a single decisionmaking process the removal of wild horses from public
land as well as from private land. Otherwise, BLM is shirking either its Section 3
duties on public land or its Section 4 duties on private land.7
Therefore, Petitioners have no qualms with BLM complying with Section 4
by arrang[ing] to have the animals removed from private land if specific horses
stray from public lands onto privately owned land. 16 U.S.C. 1334. However,
should BLM wish to remove wild horses frompubliclandwhether independently
7Nothing compelsBLM to combine these two separate actions into a single decisionmakingprocess. This is significant because if BLM sought only to remove wild horses frompublic landsin these HMAs, the agency would necessarily have to comply with Section 3. See ECF 71 at 26(conceding that it is true that Section 4 does not govern public lands). Thus, it cannot be the
case that merely because BLM optedfor its own convenienceto combine an action on publicland requiring Section 3 compliance with a separate action on private land requiring Section 4compliance, that in the process the Section 3 obligations that otherwise existed were eviscerated.
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or in conjunction with a Section 4 private land removalBLM has no choice but to
abide by the mandatory legal prerequisites Congress imposed in Section 3.8
Importantly, Petitioners are the onlyparty whose position allows for
compliance with both Sections 3 and 4 of the WHA, as Respondents are defending
BLMs 2014 decision in which the agency completely neglected its Section 3
obligations in favor of Section 4. That Petitioners have presented the only viable
path forward that harmonizes, rather than jettisons, one of these statutory provisions
is hardly surprising, given that it is the same longstanding position held by BLM
itself until its about-face herea position the agency adhered to in authorizing
many combined wild horse removals from the Checkerboards public and private
lands, including as recently as 2013. See, e.g., AR636, AR645.
Accordingly, although Respondents have seriously distorted Petitioners
position in order to present the Court with a false dichotomy (i.e., BLM can comply
8RSGA asserts that Section 3 compliance force[s]the landowners to maintain wild horseswithout consent.ECF No. 69 at 19. To the contrary, Petitioners position is that BLM canas ithas for decades, e.g., AR645round up all of the wild horses on the combined public/privatelands of the Checkerboard pursuant to Sections 3 and4, and return to the large solidpublic landblock (i.e., non-Checkerboard land) only those horses deemed non-excess. As was the case inpast gathers in which BLM employed this joint Section 3/Section 4 tactic,see AR645, acting inthis manner would adhere to Section 4 by removing allhorses from all RSGA private lands, andit would also adhere to Section 3 by ensuring that only excess horses are removed from the rangeand that all AMLs are complied with. Thus, plainly, Petitioners (and formerly BLMs) approach
would certainly not force[] the landowners to maintain wild horses without consent, ECF No.69 at 19, but instead would respond in precisely the manner Congress envisioned in Section 4 byremoving all horses from RSGAs land upon written request. The fact that some horses may, at
some future time, stray from the solid public land block is irrelevant, as Section 4 does notauthorize removal of wild horses from public land to prevent straying that may occur at someindeterminate time in the future. See ECF No. 67 at 28 (citing cases).
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with eitherSection 3 orSection 4), Petitioners position is that there is no such
mutual exclusivitywhich is only reinforced by Congress unequivocal mandate
that BLM comply with bothprovisions if and when they are triggered. See Friends
of the Earth, 446 F.3d at 145 (holding that where a statute presents two standards
for compliance, [t]he existence of two conditions does not authorize [the agency]
to disregard one of them).9
B.
RespondentsWHA Construction Fails Under Chevron.
As explained, this case presents a straightforward ChevronStep 1 inquiry
because Congress spoke in clarion terms in the WHA. As Respondents candidly
admit, there is nothing ambiguous about the Act: Section 3 directs allBLM actions
related to wild horses onpublicland, while Section 4 governs allBLM actions on
privateland. See ECF No. 71 at 26 (Section 4 does not govern public lands and
Section 3 does not govern private lands.); ECF No. 70 at 15 (Read together,
Sections 3 and 4 cover the universe of scenarios.). Congress imposed these
provisions as absolute mandates without exception, despite Congress awareness of
the unique challenges presented by BLMs management of the Checkerboard.
9Although RSGA repeatedly refers to BLMs Section 4 duty as ministerial, BLM does notshare that view. In fact, while BLM has a duty to arrange to have the animals removed fromprivate land upon request, 16 U.S.C. 1334, BLM has discretion in determining when and howtodo so. See ECF No. 71 at 27 (BLM can exercise discretion as to how and when it removes thesewild horses); 43 C.F.R. 4720.2-1 (BLM shall remove stray wild horses . . . from private landsas soon aspracticable). That BLM retains this discretion only underscores that it is possible forBLM to satisfy both statutory mandates before a combined public/private removal takes place.
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Not only have Respondents failed to seriously explain how this case can
avoid scrutiny under Chevron Step 1, but BLM has also made a number of key
concessions that undercut its primary merits argument that the WHA is ambiguous.
For example, despite the fact that BLMs entire case hinges on the ambiguity of
Section 4 that purportedly affords it discretion to remove horses from public land
under that provision, BLM admits, paradoxically, that it is true that Section 4 does
not governpubliclands. ECF No. 71 at 26(emphases added). Nor, for that matter,
can BLMs merits position be squared with the agencys concession thatBLM may
only remove horses from public lands if those horses are determined to be in
excessthat is, over [AMLs].Id.;see also id. at 2-4 (contrasting Section 3 duties
onpublic land with Section 4 duties onprivate land). These contradictions
highlight the inescapable conclusion that Congress spoke plainly in the WHA, and
the Court and parties are thereforebound by the Acts explicit terms.
This conclusion is only bolstered upon close examination of Respondents
ambiguity argument. As a threshold matter, Petitioners note that BLM did not
assert that the WHA was ambiguous in the decision document challenged in this
case, nor did Respondents assert statutory ambiguity in the district court or
appellate preliminary injunction proceedings. Rather, BLMs stated(albeit facially
erroneous) positionuntil nowhas been that Section 4 is, in fact, clear, and it
grants BLM the authority and discretion to remove wild horses frompublic land
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where it would otherwise be difficult, infeasible, or inconvenient for BLM to
discharge its WHA duties. See, e.g., AR3360 (asserting that it is practicably
infeasible to remove horses only from private lands); ECF No. 30 at 19-21
(arguing that Section 4 clearly affords BLM discretion to act on public lands).
It appears that Respondents change of heart cameonly afterPetitioners
pointed out in their opening brief that policy and practical considerationssuch as
administrative convenienceare legally irrelevant under the Chevronframework.
See ECF No. 67 at 29-31. Now realizing that administrative convenience will not
suffice as a basis for upholding BLMsdecision under Chevron, Respondents have
rapidly shifted to a different tack: asserting, for the first time, that the statute is
ambiguous, thereby affording BLM wide latitude in exercising its discretion to
resolve the situation at hand. See, e.g., ECF No. 71 at 29(It is within this
checkerboard context that there is ambiguity . . . .); id. (asserting that BLM
exercised this discretion to resolve the [WHAs] ambiguity and tension).10
10Respondents refusal to come to grips with plain languageextends past the WHAthey nowpoint to the consent decrees statement that, [p]ursuant to 16 U.S.C. 1334, BLM agrees to
remove all wild horses located onRSGAs private lands, including Wyoming Checkerboardlands, AR467 (emphasis added), to assert that BLM is required to remove all wild horses frompublic Checkerboard lands. See ECF No. 69 at 34 (asserting that BLM agreed to remove all wildhorses from the Checkerboard by RSGAsrequest); ECF No. 71 at 12 (asserting that BLM hadto remove all wild horses from the checkerboard to ensure compliance with the ConsentDecree). But, in light of the comma and the subsequent use of the word including, thisstatement very clearly refers only to RSGAsprivatelands (including RSGAprivatelands foundwithin the Checkerboard). In any case, as the consent decree concedes, BLMs implementation ofthe decree cannotconflict with the WHA, FLPMA, or NEPA. AR474, AR471-72.
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But, despite Respondents efforts to distance themselves fromthe policy
rationale underlying BLMs decision in order to survive Chevron scrutiny,
Respondents have undermined any serious attempt to raise an ambiguity argument
by repeatedly harping on the single consideration underpinning BLMs decision:
administrative convenience. See ECF 71 at 32 (this is a management challenge
presented by the unique pattern of checkerboard land ownership); ECF No. 70 at
13 (asserting that Petitioners are ignoring the realities). As explained, however,
public policy concerns simply cannot trump the plain terms of Section 3 if BLM
desires to remove any wild horses frompublicrather than privatelands. See
ECF No. 67 at 29-31. Thus, the Court must reject this backdoor attempt to
manufacture ambiguity as nothing more than a litigating position designed to mask
the fact that BLMs stated policy consideration (administrative convenience),see
AR3360, cannot pass muster as a basis for bypassing the WHAs plain language.11
11Not only must the Court reject Respondents belated assertion that the WHA is ambiguous onthe grounds that the statutory language could not be any clearer, but it also cannot be sustainedbecause it is a classic post hoc rationalization. See, e.g.,Bowen v. Georgetown Univ. Hosp., 488U.S. 204, 212-13 (1988) (rejecting [d]eference to what appears to be nothing more than anagencys convenient litigating position which is contrary to the narrow view of that provisionadvocated in past casesby the agency);Motor Vehicle Mfrs. Assn v. State Farm Mut. Auto. Ins.Co., 463 U.S. 29, 50 (1983) (explaining that courts may not accept appellate counselspost hocrationalizations for agency action because [i]t is well established that an agencys action mustbe upheld, if at all, on the basis articulated by the agency itself).By the same token, the Courtshould disregard the many citations in RSGAs brief to extra-record declarations, since the APAconfines the Courts review solely to the administrative record. See 5 U.S.C. 706; Garvey v.Freeman, 397 F.2d 600, 610-11 (10th Cir. 1968) (The integrity of the administrative processmust be judged by what took place in the administrative proceedings as reflected on theadministrative record unaided by affidavit proof in the reviewing court.) (citations omitted).
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Moreover, assuming arguendo that Respondents ambiguity defense was
sincere, it would fail to hold water for other reasons. First, Respondents ambiguity
argument is predicated on the specious assertion that, although Congress clearly
prescribed BLMs duties on public land (Section 3) and private land (Section 4),
these provisions are nevertheless unclear because Congress did not speak to the
precise issue of how the Wild Horses Act should be implemented in the
checkerboard. ECF 71 at 28;see also id.at 29 (asserting that the Act does not
speak to what the agency should do when public and private lands are so
intertwined as in the Checkerboard). Thus, Respondents argument boils down to
the contention that it can remove wild horses from public land under Section 4
because Congress did not expresslyprohibitBLM from doing so in the WHA.
That reasoning severely misses the mark. As courts have explained:
Implicit in the EPAs argument is the notion that if Congress has not
mentioned public health in [the statute], then Congress is silent orambiguous as to that issue, and the Agency therefore has discretion toregulate on the basis of that issue. This argument, however,misconstrues the Chevron analysis. . . . [W]ere courts to presume adelegation of power absent an express withholding of such power,agencies would enjoy virtually limitless hegemony, a result plainly outof keeping with Chevronand quite likely with the Constitution as well.
Ethyl Corp. v. EPA, 51 F.3d 1053, 1060-61 (D.C. Cir. 1995);see also Am. Petr.
Inst. v. EPA, 52 F.3d 1113, 1120 (D.C. Cir. 1995) (To suggest, however, that
Chevronstep two is implicated any time a statute does not expressly negatethe
existence of a claimed administrative power (i.e. when the statute is not written in
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thou shalt not terms), is both flatly unfaithful to the principles of administrative
law . . . and refuted by precedent. Thus, we will not presume a delegation of power
based solely on the fact that there is not an express withholding of such power.)
(citations omitted);Halverson v. Slater, 129 F.3d 180, 187 (D.C. Cir. 1997) (stating
that the absence of an express proscription [in the statute] provides no green light
to ignore the proscription necessarily implied by the limiting language of [the
statute]). Accordingly, this argument must be rejected.
Second, Respondents newly minted ambiguity argument ignores the
inconsistency it creates with BLMs longstanding regulation formally interpreting
Section 4. In 1980, pursuant to its authority in the WHA, BLM promulgated notice-
and-comment regulations to implement the Act. For thirty-five years, the pertinent
regulation implementing Section 4 has stated that [u]pon written request BLM
shall remove stray wild horses and burrosfrom privatelandsas soon as
practicable. 43 C.F.R. 4720.2-1 (emphasis added). Hence, as BLMs formal
construction of Section 4 makes clearvia a regulation that continues to bind
BLMs actionsthat statutory provision has never conferred any authority to BLM
to remove any wild horses frompublic land to preemptively prevent potential
straying in the future or for any other reason. See ECF No. 67 at 28.12
12BLMs regulation limiting Section 4 removals of wild horses to private landsis not onlyproblematic for the agency under Chevron, but it also means that BLMs newandfundamentally differentconstruction of Section 4 is tantamount to an unlawful regulatorymodification without first engaging in formal notice-and-comment rulemaking. See, e.g.,Alaska
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Third, as noted, Petitioners present the Court with the only approach which
allows compliance with bothstatutory mandates. See supra at 17-18. This point is
crucial, as basic canons of statutory construction require courts to reject
interpretations (such as Respondents WHA construction) that would nullify one
provision, where alternative constructions can effectuate both provisions. See Watt
v. Alaska, 451 U.S. 259, 266-67 (1981) (courts must adopt statutory interpretations
that give effect to each [provision] if we can do so while preserving their sense
and purpose);Morton v. Mancari, 417 U.S. 535, 551 (1974) (When two statutes
are capable of co-existence, it is the duty of the courts, absent a clearly expressed
congressional intention to the contrary, to regard each as effective.).13
For all of these reasons, under Chevron Step 1 this Court must give effect to
Congressunambiguously expressed intent in Section 3 and invalidate BLMs
Prof. HuntersAssnv. FAA, 177 F.3d 1030, 1034 (D.C. Cir. 1999) (explaining that an agencyhas less leeway in its choice of the method of changing its interpretation of its regulations than inaltering its construction of a statute, and thus [w]hen an agency has given its regulation adefinitive interpretation, and later significantly revises that interpretation, the agency has in effectamended its rule, something it may not accomplish without notice and comment).
13Amicicuriae asserton the basis of a legislative amendment that never passedthat Congressclearly intended to grant BLM authority under Section 4 to remove wild horses from public land.See ECF No. 72-1 at 15-17. None of the Respondents (including BLM) join this argument, andfor good reason. Not only is the legislative history unclear as to whythis amendment never madeit out of committee, but it also ignores that the proposal was never vetted by the full Congress(thus defeating any notion of Congressional acquiescence). In any event, courts have explainedthat it would be folly to divine legislative intent from Congress inactionto adopt a specificamendment, especially whereas hereit hasadopted statutory language that is plain on itsface. See, e.g., United States v. Price, 361 U.S. 304, 310-11 (1960) (finding that non-action byCongress affords the most dubious foundation for drawing positive inferences, where Congress
did not adopt an express repudiation of [twoNinth Circuit] decisions when amending a law);Sparrow v. IRS, 949 F.2d 434, 439 (D.C. Cir. 1991) (Inferring congressional intent from the
failure to enact a legislative proposal is frequently a risky enterprise.) (citation omitted).
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overreach of its Section 4 authority. See Perf. Coal Co. v. Fed. Mine Safety &
Health Rev. Commn, 642 F.3d 234, 239 (D.C. Cir. 2011) (under Chevron, there is
no reason to manufacture ambiguity when . . . the legislativeprose is pellucid).14
III. BLMS DE FACTO AML REDUCTIONFLOUTS VARIOUS LAWS.
As Petitioners explained in their opening briefand Respondents have not
disputedBLMs fall 2014 removal reduced the combined wild horse population
in these HMAs to 649 horses, which is 627 horses (49%) fewer than BLM must
maintain at all times under the WHA, FLPMA, and the agencys own RMPs.
Respondents cursory rejoinders all simply reiterate the same (erroneous)
legal argument made in the WHA contexti.e., because BLM pursued this action
solely under Section 4, BLM may run roughshod over any and all Congressional
mandates that would otherwise apply to these federally protected wild horses on
public land. See ECF No. 71 at 43-44; ECF No. 70 at 25-26; ECF No. 69 at 41-43.
For the same reasons that BLM is not legally authorized to remove wild
horses from public land under Section 4 of the WHA,see supra at 18-25, BLM
cannot contravene its own AMLs and the laws upon which they are predicated
simply because BLM erroneously invoked Section 4 for this removal. There are
also independent reasons for overturning BLMs decision on this basis, including
because the only circumstance in which BLM may be justified in reducing a wild
14Although Respondents have set forth no basis for reaching Step 2 of the Chevron framework,Respondents WHA construction would nevertheless fail to pass muster under that standard forthe reasons presented in Petitioners opening brief. See ECF 67 at 31-37.
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horse population below the governing AML is where there exists a bona fide
emergency situation[] based on limited forage, water, . . . [or] other limiting
factors that threaten[] the health and welfare of a wild horse . . . population.
AR3997. That certainly was not the basis for BLMs fall 2014 removal, and thus
BLM was required to abide by the typical rule that [w]ild horses . . . should
generally not be removed below the AML lower limit. AR3996 (emphasis added).
Accordingly, BLMs AML reduction cannot be squared with FLPMA, the
WHA, the governing RMPs, or BLMs own manual that implements those laws.
IV. BLMS CATEGORICAL EXCLUSION VIOLATES NEPA.
Petitioners have explained the many ways in which BLMs unprecedented
and controversial decision to invoke a categorical exclusionwhich on its face is
expressly limited in its application toprivate landfor the removal of hundreds of
wild horses frompublic land violates NEPA. See ECF No. 67 at 40-45.
In defense, Respondents again primarily hide behind their faulty WHA
argument, making the unsupported leap in logic that so long as BLM invokes only
Section 4 for a removal action (even if unlawfully), that allows BLM to twist the
plain terms of theprivate land categorical exclusion to fit the portion of this action
that indisputably occurred onpublic land. See ECF No. 71 at 34-43. Respondents
contentioni.e., [i]f the removal decision is authorized by Section 4, then the
action is eligible for a categorical exclusion, ECF 70 at 27borders on the
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more than 600 wild horses from public land, as BLM is required to do by its own
wild horse handbooks for allpublic land removals. See ECF No. 67 at 42-44.
The best defenses that Respondents could muster are that BLMs team of
eleven specialists determined that no extraordinary circumstances exist requiring
an EA, Petitioners did not submit evidence of any effects to BLM, and the removal
will have positive environmental impacts. These responses are easily dismissed.
First, an extraordinary circumstances determination is irrelevant if the
chosen categorical exclusion does not fit the action, as is the case here. Second, the
fact that BLM felt compelled to rely on eleven specialists highlights precisely why
the complex environmental impacts here require more extensive analysis. Third, in
any event, contrary to BLMs assertion,see ECF No. 71 at 38, BLMsfinding that
normal NEPA procedures are inapplicable is not subject to deference. See Grand
Canyon Trust v. FAA, 290 F.3d 339, 342 (D.C. Cir. 2002) ([T]he court owes no
deference to the FAAs interpretation of NEPA . . . because NEPA is addressed to
all federal agencies.); Cit. Against Rails-to-Trails v. STB, 267 F.3d 1144, 1150-51
(D.C. Cir. 2001) (holding that a determination that NEPA is inapplicable . . . is not
entitled to [] deferenceand is a question of law, subject to de novo review).
Fourth, BLM accuses Petitioners of not bringing issues before the agency
via the public comment period, ECF No. 71 at 40, which is puzzling given that
Petitioners did submit scoping comments, butBLMrefused to issue a draft EA or
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EIS upon which Petitioners certainly would have commented on a concrete
proposal. Fifth, RSGAs ebullient praise for what it views as the dramatic positive
impacts resulting from BLMs action,see ECF No. 69 at 37-38 ([r]ange resources
will benefit immediately and vegetation [will] recover), further emphasizes that
some analysisin either an EA or EISis required here, regardless of whether
these profound impacts are labeled as adverse or beneficial. See Envtl. Def. Fund v.
Marsh, 651 F.2d 983, 993 (5th Cir. 1981) (NEPA is concerned with all significant
environmental effects, not merely adverse ones, meaning that a beneficial impact
must nevertheless be discussed in an EIS, so long as it is significant); 40 C.F.R.
1508.8 (defining effects under NEPA to include beneficial effects).
Finally, it is quite telling that BLM has not even responded to Petitioners
argument that BLM cannot meet its extraordinary circumstances burden when
BLMs ownofficial has admittedthat this action is a precedent-setting and
fundamental change in approach,AR3341 and is very controversial, AR3349,
on top of the serious genetic diversity concerns raised by BLMs action. For all of
these reasons, this Court should overturn BLMs decisionas violative of NEPA.
CONCLUSION
Petitioners respectfully request that the Court declare BLM in ongoing
violation of the WHA, NEPA, and FLPMA, and order supplemental briefing on
remedy to determine which specific forms of relief are necessary and appropriate.
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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 & CRYSTAL1601 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 1Cheyenne, WY 82001-3519(307) 638-8885
Counsel for Petitioners
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CERTIFICATE OF SERVICE
I hereby certify that on February 3, 2015, I electronically filed the foregoing
PETITIONERSREPLY BRIEF 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 IIWilliam S. Eubanks II
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