United States District Court, D. Utah
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,
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
N. Parrish United States District Court Judge.
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).
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; 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 (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).
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
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.
THE WILD FREE-ROAMING HORSES AND BURROS ACT OF 1971
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.”
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.
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
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
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.
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”),  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).”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.
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.
INTERACTION OF WHA WITH FLPMA AND NEPA
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).
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).
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”).
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).
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.
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.” 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).
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).
ACTION “UNLAWFULLY WITHHELD” AND ACTION
UNDER 5 U.S.C. § 706(1)
Tenth Circuit has articulated the distinction between action
that is “unlawfully withheld” and action that is
“unreasonably delayed” under § 706(1) as
[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
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.
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
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)).
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. See Forest Guardians, 174 F.3d
STANDARD OF REVIEW FOR AGENCY ACTION “UNREASONABLY
DELAYED” UNDER 5 U.S.C. § 706(1)
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
(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.
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.
DEFENDANT-INTERVENORS' JURISDICTIONAL CHALLENGES
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.
MOOTNESS OF CERTAIN CLAIMS UNDER SECTION THREE
Defendant-Intervenors argue that any claims regarding
pre-2012 determinations 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.
RIPENESS OF CERTAIN CLAIMS UNDER SECTION THREE
similar vein, Defendant-Intervenors argue that
Plaintiffs' claims regarding post-2012 determinations of
the need for removal 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
of Defendant-Intervenors' jurisdictional challenges are
unavailing, the court now turns to the merits of
Plaintiffs' claims against BLM.
PLAINTIFFS' CLAIMS REGARDING REMOVAL FROM PUBLIC LAND
UNDER SECTION THREE OF THE WHA
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
. . .  that an overpopulation exists on a given area of
the public lands and  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.
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.
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 ...