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Western Rangeland Conservation Association v. Zinke

United States District Court, D. Utah

July 11, 2017

WESTERN RANGELAND CONSERVATION ASSOCIATION, PEARSON RANCH, YARLDEY CATTLE CO., RUNNIN C FAMILY PARTNERSHIP LP, WINTCH & CO. LTD., MATTHEW WOOD, MARILYN WOOD, PLATT LIVESTOCK LLC, SAGE VALLEY HOLDINGS, ESCALANTE FARMS, LLC, DUSTIN HUNTINGTON, TERRIL HUNT, and MARK EVANS, Plaintiffs,
v.
RYAN ZINKE, in his official capacity as Secretary of the Interior; MICHAEL D. NEDD, in his official capacity as acting director of the U.S. Bureau of Land Management; EDWIN L. ROBERSON, in his official capacity as Utah State Director of the Bureau of Land Management; and UTAH BUREAU OF LAND MANAGEMENT, Defendants, and AMERICAN WILD HORSE PRESERVATION CAMPAIGN, THE CLOUD FOUNDATION, RETURN TO FREEDOM, JOHN STEELE, and LISA FRIDAY, Defendant-Intervenors.

          MEMORANDUM DECISION AND ORDER DENYING PLAINTIFFS' REQUEST FOR MANDATORY INJUNCTIVE RELIEF UNDER THE ADMINISTRATIVE PROCEDURE ACT AND DISMISSING THE ACTION

          Jill N. Parrish United States District Court Judge.

         Now before the court is Plaintiffs' demand for injunctive relief pursuant to 5 U.S.C. § 706(1) of the Administrative Procedure Act (“APA”). (See Docket Nos. 2, 51, 103).[1]

         INTRODUCTION

         This lawsuit was initiated in April of 2014 by Plaintiffs Western Rangeland Conservation Association; Pearson Ranch; Yardley Cattle Company; Runnin C Family Partnership LP; Wintch & Co. Ltd.; Joel Hatch; R. Larson Sheep Company LLC; Matthew Wood; Marilyn Wood; Platt Livestock LLC; Sage Valley Holdings; Escalante Farms, LLC;[2] Dustin Huntington; Terril Hunt; and Mark Evans against Defendants Sally Jewell, then-Secretary of the Interior; the United States Department of the Interior; Neil Kornze, then-Director of the United States Bureau of Land Management; and Juan Palma, then-Utah State Director of the Bureau of Land Management[3] (collectively, “Federal Defendants” or “BLM”). On August 27, 2014, the court granted a motion to intervene as defendants filed by the American Wild Horse Preservation Campaign, the Cloud Foundation, Return to Freedom, John Steele, and Lisa Friday (collectively, “Defendant-Intervenors”) pursuant to Fed.R.Civ.P. 24(a). (Docket No. 40).

         Plaintiffs are holders of federal grazing permits issued pursuant to the Taylor Grazing Act, see 43 U.S.C. § 315b, which allow them to graze their livestock on public rangelands throughout central and southern Utah. Plaintiffs contend that BLM has failed to perform certain ministerial duties under the Wild Free-Roaming Horses and Burros Act of 1971 (“WHA”), 16 U.S.C. §§ 1331, et seq., and claim that BLM's failure has adversely impacted their ability to utilize their grazing allotments. Specifically, Plaintiffs argue that BLM has failed to properly manage the excess population of wild horses that directly compete with livestock for forage and water on public lands and damage the rangeland ecosystem. Plaintiffs also allege that BLM has failed to properly remove excess wild horses present on lands owned by the State of Utah and private landowners. Thus, Plaintiffs ask this court to compel BLM to perform its statutory duties under the WHA to remove excess wild horses from both public and private lands.[4]

         Roberson has replaced Juan Palma as the State Director of the Bureau of Land Management for Utah. Under Fed.R.Civ.P. 25(d), each public officer's successor “is automatically substituted as a party” regardless of court order.

         I. THE WILD FREE-ROAMING HORSES AND BURROS ACT OF 1971

         Plaintiffs' challenge centers on the duties imposed on BLM by the WHA, which delegates the management of free-roaming wild horses and burros to the Department of the Interior and BLM. Development and passage of the WHA was prompted by the rapid disappearance of wild horse and burro populations from western rangelands. See 16 U.S.C. § 1331. Congressional inquiry found that grazing land previously available to wild horses and burros was “fenced off for private use, while the animals were slaughtered for sport and profit.” Mountain States Legal Found. v. Hodel, 799 F.2d 1423, 1425 (10th Cir. 1986). The once-prevalent herds of wild horses and burros were hunted to the verge of extinction, and the “remaining animals were driven to marginal, inhospitable grazing areas.” Id.

         To preserve these “living symbols of the historic and pioneer spirit of the West” from “capture, branding, harassment, or death, ” Congress enacted the WHA, which designated all wild free-roaming horses and burros as “integral part[s] of the natural system of the public lands, ” 16 U.S.C. § 1331, and entrusted their protection and management to the Secretary of the Interior and BLM, id. § 1333(a) (placing all wild horses and burros under the jurisdiction of the Secretary of the Interior and directing that the animals be protected and managed as “components of the public lands”). In essence, the Act is “a land-use regulation enacted by Congress to ensure the survival of a particular species of wildlife.” Mountain States, 799 F.2d at 1428.

         Several years after passage of the WHA, Congress found that its attempt to prevent the decline of wild horses and burros had worked far too well. By 1978, the wild horse and burro populations had rebounded and redoubled, and now threatened to disrupt the delicate ecological balance on western rangelands. See Am. Horse Prot. Ass'n, Inc. v. Watt, 694 F.2d 1310, 1315-16 (D.C. Cir. 1982). A congressional report calling for amendments to the WHA explained:

In the case of wild horses and burros in the Western States, Congress acted in 1971 to curb abuses which posed a threat to their survival. The situation now appears to have reversed, and action is needed to prevent a successful program from exceeding its goals and causing animal habitat destruction.

Id. at 316 (quoting H.R. Rep. No. 95-1122, 95th Cong., 2d Sess. 23 (1978)). Based on these findings, Congress amended the WHA

to avoid excessive costs in the administration of the Act, and to facilitate the humane adoption or disposal of excess wild free-roaming horses and burros which because they exceed the carrying capacity of the range, pose a threat to their own habitat, fish, wildlife, recreation, water and soil conservation, domestic livestock grazing, and other rangeland values.

43 U.S.C. § 1901(a)(6). The 1978 amendments to the WHA “struck a new balance-or at least clarified the balance Congress intended to strike in 1971-between protecting wild horses and competing interests in the resources of the public ranges.” Am. Horse Prot. Ass'n, 694 F.2d at 1316. As amended, the Act's central goal is not only to protect wild horse and burro populations, but to “achieve and maintain a thriving natural ecological balance on the public lands.” 16 U.S.C. § 1333(a). Thus, BLM is tasked with harmonizing the protection of wild horses and burros and the preservation of other rangeland values and uses.

         To that end, the WHA requires BLM to compile and maintain “current inventor[ies] of wild horses and burros on given areas of the public lands.” Id. § 1333(b)(1); 43 C.F.R. § 4710.2. Inventories of wild horse and burro herds are used to designate appropriate herd management areas (“HMAs”), [5] see 43 C.F.R. § 4710.3-1, and to “determine appropriate management levels” (“AMLs”), 16 U.S.C. § 1333(b)(1). “An AML is expressed as a population range with both an upper and lower limit, within which wild horses or burros can be managed for the long term.” Am. Wild Horse Pres. Campaign v. Jewell, 847 F.3d 1174, 1178 (10th Cir. 2016) (quotations and alterations omitted). Where a given wild horse or burro population exceeds its designated AML, BLM must decide whether to bring the herd back within AML “by the removal or destruction of excess animals, or other options (such as sterilization, or natural controls on population levels).”[6]16 U.S.C. § 1333(b)(1). “In this way, [the] AML is a vehicle used to move towards a thriving natural ecological balance, and a trigger by which the BLM is alerted to address population imbalance.” In Def. of Animals v. U.S. Dep't of Interior, 751 F.3d 1054, 1063-64 (9th Cir. 2014) (alterations omitted). In sum, “[t]o comply with the Act's directive to manage wild horses ‘in a manner that is designed to achieve and maintain a thriving natural ecological balance on the public lands, ' . . . the BLM (a) maintains a current inventory of wild horses in each HMA, (b) determines the [AML] of wild horses that each HMA can sustain, and (c) determines the method of achieving the designated AML.” Wyoming v. U.S. Dep't of Interior, 839 F.3d 938, 940 (10th Cir. 2016) (quoting 16 U.S.C. § 1333(a) and citing id. § 1333(b)(1); 43 C.F.R. §§ 4710.2, 4710.3-1); see also Am. Wild Horse Pres. Campaign, 847 F.3d at 1178.

         Sections Three and Four of the Act delineate specific actions that BLM is required to undertake as part of its management of wild horse and burro populations. Section Three deals with wild horse and burro herds present on public lands and requires BLM to “immediately remove excess animals from the range” once BLM determines (1) that a population of wild horses on a given HMA exceeds its established AML and (2) “that action is necessary to remove excess animals.” 16 U.S.C. § 1333(b)(2); see also Wyoming, 839 F.3d at 944 (delineating the two-step process that triggers BLM's ministerial duty to “immediately remove” excess wild horses). Section Four requires BLM to arrange for the removal of wild horses and burros that stray off of public land and onto adjacent private land. See 16 U.S.C. § 1334.

         II. INTERACTION OF WHA WITH FLPMA AND NEPA

         BLM makes management determinations and conducts necessary removals in compliance with both the Federal Land Policy and Management Act of 1976 (“FLPMA”), 43 U.S.C. § 1701, et seq., and the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. § 4321, et seq.; see also Wyoming v. U.S. Dep't of Interior, No. 14-cv-0248, 2015 WL 12916334, at *2 (D. Wyo. Apr. 21, 2015) (unpublished), aff'd, 839 F.3d 938 (10th Cir. 2016).

         FLPMA directs BLM to “manage public lands under principles of multiple use and sustained yield” and, to that end, requires the development of both comprehensive resource inventories and broad, programmatic resource management plans for public lands. 43 U.S.C. § 1732(a); S. Utah Wilderness All. v. Norton, 542 U.S. 55, 58 (2004) (explaining that FLPMA mandates “a dual regime of inventory and planning”). BLM establishes HMAs, sets AMLs within those HMAs, and conducts all wild horse and burro management activities “in accordance with approved land use plans prepared pursuant to” FLPMA. See 43 C.F.R. §§ 4710.1, 4710.3-1; Am. Wild Horse Pres. Campaign, 847 F.3d at 1178 (outlining BLM's interrelated management under the WHA and FLPMA).

         NEPA requires BLM to “pause before committing resources to a project and consider the likely environmental impacts of the preferred course of action as well as reasonable alternatives.” N.M. ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 703 (10th Cir. 2009) (citing 42 U.S.C. § 4331(b)). Thus, before conducting gathers, removals, or other management actions related to wild horse and burro populations on public lands, BLM prepares an environmental assessment (“EA”) to evaluate potential environmental impacts, to outline the agency's proposed course of action and reasonable alternatives, and to provide for public comment on the agency's proposal. See Friends of Animals v. Sparks, 200 F.Supp.3d 1114, 1119 (D. Mont. 2016); Fund for Animals, Inc. v. U.S. Bureau of Land Mgmt., 460 F.3d 13, 16 (D.C. Cir. 2006); 40 C.F.R. §§ 1501.4, 1508.9 (describing the purpose and form of EAs generally). If adopted, the proposed course of action is authorized in a document known as a decision record (“DR”).

         BACKGROUND

         At issue in this case are eight HMAs, a single HA, and certain private lands encompassed within or lying adjacent to public lands. The eight HMAs under scrutiny here are known as Frisco, Four-Mile, Bible Springs, Sulphur, Choke Cherry, Muddy Creek, North Hills, and Swasey. Together, the boundaries of these HMAs encompass just shy of one million acres of public and private land. The lone HA at issue, known as Blawn Wash, covers nearly 63, 000 additional acres. These arid rangelands make up large swaths of central and southern Utah and are home to a fragile and complex ecosystem that includes substantial herds of wild horses and burros, as well as numerous other species of wild animals and plants. The HMAs and HA at issue also provide forage and water for significant numbers of private livestock and therefore form an integral component of the local agricultural economy. Since the 1971 passage of the WHA and 1978 amendments thereto, BLM has been tasked with balancing these often conflicting interests. That conflict has bubbled under the surface or boiled over in many western states, including Utah, where the federal government manages a large percentage of available rangeland. The situation has grown especially severe in recent decades, as BLM has struggled to keep apace of the ever-increasing wild horse and burro populations. Currently, the number of wild horses and burros present on Utah's rangelands is nearly triple the collective AML maximum for the region. Overpopulation is similarly severe across nine other western states. (See Docket No. 107-1, at 2).

         Frustrated with the state of the range and BLM's management efforts, Plaintiffs initiated this lawsuit April 30, 2014 to compel immediate removal of excess wild horses from public and private lands. (Docket Nos. 2 (original complaint), 51 (first amended complaint)). The administrative record was filed on June 12, 2015, (Docket Nos. 65, 66), and updated on November 11, 2015 and May 16, 2016, (Docket Nos. 81, 94). Plaintiffs filed an opening brief, requesting mandatory injunctive relief under 5 U.S.C. § 706(1), on August 17, 2016. (Docket No. 103). Several amicus curiae briefs were filed on behalf of Plaintiffs by various parties, including the State of Utah, the Public Lands Council, Western AgCredit ACA, and Beaver, Iron, and Emery Counties, as well as certain associated conservation districts located in central and southern Utah. (Docket Nos. 102, 105, 107, 115). Federal Defendants responded on October 28, 2016. (Docket No. 117). Defendant-Intervenors responded the same day. (Docket No. 120). Plaintiffs replied to Federal Defendants and to Defendant-Intervenors on November 21, 2016. (Docket Nos. 122, 123). Federal Defendants filed a limited surreply on January 30, 2017. (Docket No. 135). The court held oral argument on the request for mandatory injunctive relief on April 11, 2017. (Docket No. 142). The court now considers the arguments of the parties under authority granted by 5 U.S.C. §§ 702, 706, and 28 U.S.C. § 1331.

         STANDARD OF REVIEW

         Plaintiffs bring their claim for injunctive relief under § 706(1) of the Administrative Procedure Act (“APA”), which requires a reviewing court to “compel agency action unlawfully withheld or unreasonably delayed.”[7] See 5 U.S.C. § 706(1). “[A] claim under § 706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take.” Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004) (emphasis in original). To that end, Plaintiffs assert that BLM has “unlawfully withheld” and “unreasonably delayed” action to remove excess wild horses from public and private lands in violation of the WHA. See 16 U.S.C. § 1333(b)(2) (requiring removal of excess wild horses and burros from public lands upon certain triggering conditions); id. § 1334 (requiring BLM to “arrange to have [stray wild horses and burros] removed” from private lands upon request).

         Although Plaintiffs insist that BLM has both “unlawfully withheld” and “unreasonably delayed” action under the WHA, (see Docket No. 122, at 13-25), the two terms are mutually exclusive. Each applies to a distinct statutory structure and is evaluated under a distinct standard. See Forest Guardians v. Babbit, 174 F.3d 1178, 1189 (10th Cir. 1999). Consequently, in order to properly evaluate the merits of Plaintiffs' claims, the court must determine whether BLM's alleged failure to remove excess wild horses under the WHA is properly characterized as an “unlawful with[olding]” or an “unreasonabl[e] delay” of agency action under the APA. See 5 U.S.C. § 706(1).

         I. ACTION “UNLAWFULLY WITHHELD” AND ACTION “UNREASONABLY

         DELAYED” UNDER 5 U.S.C. § 706(1)

         The Tenth Circuit has articulated the distinction between action that is “unlawfully withheld” and action that is “unreasonably delayed” under § 706(1) as follows:

[I]f an agency has no concrete deadline establishing a date by which it must act, and instead is governed only by general timing provisions-such as the APA's general admonition that agencies conclude matters presented to them “within a reasonable time, ” see 5 U.S.C. § 555(b)-a court must compel only action that is delayed unreasonably. Conversely, when an entity governed by the APA fails to comply with a statutorily imposed absolute deadline, it has unlawfully withheld agency action and courts, upon proper application, must compel the agency to act.
Thus, the distinction between agency action “unlawfully withheld” and “unreasonably delayed” turns on whether Congress imposed a date-certain deadline on agency action. . . . In our opinion, when an agency is required to act-either by organic statute or by the APA-within an expeditious, prompt, or reasonable time, § 706 leaves in courts the discretion to decide whether agency delay is unreasonable. However, when Congress by organic statute sets a specific deadline for agency action, neither the agency nor any court has discretion. The agency must act by the deadline. If it withholds such timely action, a reviewing court must compel the action unlawfully withheld.

Forest Guardians, 174 F.3d at 1190.

         Applying this standard to Sections Three and Four of the WHA, the court can find no “absolute” or “date-certain deadline” by which the agency must act upon removal determinations. See id. Although Section Three requires that BLM “immediately remove” excess wild horses and burros when certain conditions are met, it does not specify any deadline or delineate any timeframe for completion of required removals. See Am. Horse Prot. Ass'n, Inc. v. Watt , 694 F.2d 1310, 1316 (D.C. Cir. 1982) (interpreting the 1978 Amendments to require that excess horses “be removed expeditiously” (emphasis in original)). Though obviously more urgent in tone, the command to “immediately remove” carries no more of a specific deadline than the “APA's general admonition that agencies conclude matters presented to them ‘within a reasonable time.'” See Forest Guardians, 174 F.3d at 1190 (quoting 5 U.S.C. § 555(b)). Instead, the term “immediately” provides a measure by which the reasonableness of any delay may be evaluated.

         Similarly, Section Four imposes no “absolute” or “date-certain deadline” for removal actions from private lands. See Forest Guardians, 174 F.3d at 1190. The Act requires only that BLM “arrange to have [stray] animals removed” from private lands upon notice from affected landowners. See 16 U.S.C. § 1334. Moreover, BLM has interpreted the Act to require prompt action without a precise deadline. See 43 C.F.R. § 4720.2-1 (requiring authorized BLM officers to “remove stray wild horses and burros from private land as soon as practicable” (emphasis added)).

         Because neither Section Three nor Section Four impose explicit statutory deadlines that would warrant the application of the “unlawfully withheld” standard, the court will treat BLM's alleged failures to act under those sections as action “unreasonably delayed” and apply the corresponding standard.[8] See Forest Guardians, 174 F.3d at 1190.

         II. STANDARD OF REVIEW FOR AGENCY ACTION “UNREASONABLY DELAYED” UNDER 5 U.S.C. § 706(1)

         Although the Tenth Circuit has not definitively adopted a standard by which courts may evaluate the reasonableness of agency delay under 5 U.S.C. § 706(1), it has favorably cited to the District of Columbia Circuit's so-called TRAC factor test, see Telecomms. Res. & Action Ctr. v. FCC, 750 F.2d 70 (D.C. Cir. 1984) [TRAC], which is widely accepted as a touchstone for evaluating such claims, see Qwest Comm'ns Intern., Inc. v. FCC, 398 F.3d 1222, 1238-39 (10th Cir. 2005) (citing the D.C. Circuit's TRAC jurisprudence in the context of a claim of “unreasonably delayed” agency action). The Tenth Circuit has emphasized that “a court-imposed deadline for agency action constitutes an extraordinary remedy, ” id. at 1238-39 (citing In re Int'l Chem. Workers Union, 958 F.2d 1144, 1149 (D.C. Cir. 1992)), and has articulated the following five factors (drawn from TRAC jurisprudence) for consideration:

(1) [T]he extent of the delay, (2) the reasonableness of the delay in the context of the legislation authorizing agency action, (3) the consequences of the delay, and (4) administrative difficulties bearing on the agency's ability to resolve an issue. To this we might expressly add [(5)] consideration of the complexity of the task envisioned by a court's remand order.

Id. at 1239. The court will explain and apply this standard in more detail below.

         DISCUSSION

         The court will now address the arguments of the parties under jurisdiction granted by 5 U.S.C. §§ 701-06 and 28 U.S.C. § 1331. First, the court must resolve two jurisdictional challenges raised by Defendant-Intervenors. Second, the court will address Plaintiffs' claims under Section Three of the WHA. Finally, the court will address Plaintiffs' claims under Section Four of the WHA.

         I. DEFENDANT-INTERVENORS' JURISDICTIONAL CHALLENGES

         Before proceeding to the merits of Plaintiffs' claims, the court must address two challenges to its subject matter jurisdiction raised by Defendant-Intervenors. They argue that all of Plaintiffs' claims regarding the eight HMAs and single HA at issue are either moot or unripe, and therefore this court lacks subject matter jurisdiction over the claims. The court addresses Defendant-Intervenors' mootness argument first, then their ripeness argument.

         A. MOOTNESS OF CERTAIN CLAIMS UNDER SECTION THREE

         First, Defendant-Intervenors argue that any claims regarding pre-2012 determinations[9] of the need to gather and remove wild horses are moot because those gathers and removals have been completed. They insist that “there is no point in ordering an action that has already taken place.” (Docket No. 120, at 29 (quoting So. Utah Wilderness All. v. Smith, 110 F.3d 724, 728 (10th Cir. 1997) (alterations omitted)). If Plaintiffs' claims challenged the gathers or removals themselves, the court would be inclined to agree. See Fund for Animals, Inc. v. U.S. Bureau of Land Mgmt., 460 F.3d 13, 22 (D.C. Cir. 2006) (holding that challenges to completed gathers are moot and therefore not justiciable); Cloud Found., Inc. v. Salazar, 999 F.Supp.2d 117, 127 (D.D.C. 2013) (holding that a challenge to categorical exclusion based on previously completed gathers was moot). But Plaintiffs do not challenge the pre-2012 gathers and removals in and of themselves-instead, they argue that BLM has a current duty to remove wild horses because of findings and determinations in the EAs and DRs for the pre-2012 gathers. If no such duty exists, then Plaintiffs' claims fail as a matter of law, not as a matter of mootness. In other words, the question before the court is not whether claims regarding the pre-2012 gathers are moot, but whether Plaintiffs have stated a legally cognizable claim for injunctive relief. Accordingly, the court holds that these claims are not moot.

         B. RIPENESS OF CERTAIN CLAIMS UNDER SECTION THREE

         In a similar vein, Defendant-Intervenors argue that Plaintiffs' claims regarding post-2012 determinations of the need for removal[10] are not ripe because BLM is still in the process of implementing those removals. They assert that each DR contemplated a “phased-in” removal approach that will not be complete for several years and urge that any decision regarding BLM's implementation of this approach would be premature. As with the mootness argument disposed of above, the court must disagree. Though Plaintiffs hint at challenges to the specific terms of the post-2012 DRs, (see Docket No. 123, at 21), the broad thrust of their challenge is that BLM's “phased-in” approach does not fulfill the WHA's mandate to “immediately remove” excess animals and, as a result, BLM is illegally delaying compliance with that mandate, (see Id. (“[A] phased-in approach of six to ten years, on its face, does not satisfy Section 1333(b)(2)'s requirement of ‘immediate removal.'”)). This challenge need not wait for the completion of BLM's “phased-in” approach because Plaintiffs argue that the approach itself fails to fulfill BLM's duty under the WHA. Cf. Envtl. Def. Fund, Inc. v. Hardin, 428 F.2d 1093, 1100 (D.C. Cir. 1970) (“At some point administrative delay amounts to a refusal to act, with sufficient finality and ripeness to permit judicial review.”). Whether BLM is under an obligation to “immediately” remove excess animals from certain HMAs and whether the agency's “phased-in” approach actually fulfills that obligation are not “abstract disagreements” the court must avoid. See Rural Water Dist. No. 2 v. City of Glenpool, 698 F.3d 1270, 1275 (10th Cir. 2012). Thus, the court concludes that a ripeness analysis is inapplicable here.

         As both of Defendant-Intervenors' jurisdictional challenges are unavailing, the court now turns to the merits of Plaintiffs' claims against BLM.

         II. PLAINTIFFS' CLAIMS REGARDING REMOVAL FROM PUBLIC LAND UNDER SECTION THREE OF THE WHA

         First, the court addresses Plaintiffs' claims under Section Three of the WHA. As noted above, Section Three imposes a statutory duty on BLM to “immediately remove excess animals from the range” when certain conditions are met. See 16 U.S.C. § 1333(b)(2). The Tenth Circuit has recently delineated the conditions that trigger this statutory duty in Wyoming v. United States Department of Interior, 839 F.3d 938 (2016). In that case, the State of Wyoming sued BLM, arguing that BLM had failed to remove excess wild horses from certain HMAs within the State's boundaries, unlawfully withholding or unreasonably delaying action required by the WHA. See Id. at 942 (citing 5 U.S.C. § 706(1)). The State argued that because BLM had determined that wild horse populations exceeded the upper limit of the AML established for each HMA, the statutory duty under § 1333(b)(2) was triggered, requiring BLM to “immediately remove” excess wild horses from the overpopulated HMAs. Id. at 943-44. The Tenth Circuit rejected the State's argument as “contrary to the plain language” of the WHA and held that the Act affords the BLM discretion to decide how to handle overpopulations of wild horses on public lands. Id. at 944. The court noted that the Act directs BLM to maintain inventories of wild horse populations in order “to . . . make determinations as to whether and where an overpopulation exists and whether action should be taken to remove excess animals[, ] . . . and [to] determine whether [AMLs] should be achieved by the removal or destruction of excess animals, or other options (such as sterilization, or natural controls on population levels).” Id. at 944 (internal quotations removed, alterations in original) (quoting 16 U.S.C. § 1333(b)(1)). This language “quite clearly affords . . . BLM with discretion to decide whether or not to remove excess animals.” Id. The court concluded that this discretion is not extinguished when BLM determines that a particular wild horse population exceeds its assigned AML: “[C]ontrary to the State's argument, a determination that an overpopulation exists in a given HMA is not sufficient, standing alone, to trigger any duty on the part of the BLM.” Id. Instead, BLM has a mandatory, non-discretionary duty to “immediately remove excess animals” only after BLM “determines . . . [1] that an overpopulation exists on a given area of the public lands and [2] that action is necessary to remove excess animals . . . .” § 1333(b)(2) (emphasis added); see also Wyoming , 839 F.3d at 944. Although it was clear that an overpopulation of wild horses existed on the disputed HMAs, the court held that the State had failed to demonstrate that the second requirement was satisfied “because . . . BLM has not determined that action is necessary to remove the excess animals.” Wyoming, 839 F.3d at 944. As a result, the court concluded that BLM was not obligated to remove excess wild horses under the WHA and therefore had not “unlawfully withheld or unreasonably delayed” an action it was required by law to take. Id. at 944-45.

         Here, as in Wyoming, it is undisputed that wild horse populations exceed the respective AMLs of each of the eight HMAs and one HA at issue. Still, the parties differ as to whether BLM has determined that removal of excess animals is necessary on certain of the HMAs, i.e., whether a mandatory duty to remove the excess animals has been triggered. Plaintiffs assert that BLM has determined that removal of excess horses is necessary on each of the eight HMAs and one HA at issue. BLM concedes that it has determined that removal is currently necessary on five of the eight HMAs and one HA, but denies that any such determination has been made for the four remaining HMAs. More specifically, BLM acknowledges that, since 2014, it has determined that removal of excess horses is necessary in the Frisco, Four Mile, Bible Springs, and Sulphur HMAs, and the Blawn Wash HA. (Docket No. 117, at 10-11). Thus, BLM agrees that it has a statutory duty to remove excess horses from these areas.

         By contrast, BLM insists that it has not determined that removal of current overpopulations is necessary in the Choke Cherry, Muddy Springs, North Hills, and Swasey HMAs. BLM argues that any previous determinations regarding the necessity of removal from those HMAs are no longer operative and cannot bind the agency. Plaintiffs disagree and insist that determinations made prior to 2014 regarding the necessity of removal from the four remaining HMAs are sufficient ...


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