Legal State of Wy Appeal Governments Answering Brief

8/20/2019 Legal State of Wy Appeal Governments Answering Brief

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No. 15-8041

IN THE UNITED STATES COURT OF APPEALSFOR THE TENTH CIRCUIT

STATE OF WYOMING,

Petitioner-Appellant , v.

U.S. DEPARTMENT OF THE INTERIOR, et al .,

Respondents-Appellees ,

&

AMERICAN WILD HORSE PRESERVATION CAMPAIGN, et al .,

Intervenors-Respondents-Appellees .

ON APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF WYOMING,

No. 2:14-cv-00248 (Hon. Nancy D. Freudenthal)

ANSWERING BRIEF FOR THE UNITED STATES(Oral Argument Requested)

JOHN C. CRUDEN Assistant Attorney General Environment & Natural Resources Division

ALISON C. FINNEGAN ARTHUR R. KLEVEN ALLEN M. BRABENDER Attorney, Office of the Solicitor Attorneys, U.S. Dep’t of JusticeU.S. Dep’t of the Interior Environment & Natural Resources Division

P.O. Box 7415Washington, DC 20044Telephone: (202) 514-5316 [email protected]

Appellate Case: 15-8041 Document: 01019569975 Date Filed: 02/12/2016 Page: 1


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TABLE OF CONTENTS

STATEMENT OF THE ISSUE ............................................................................................ 1

STATEMENT OF THE CASE ............................................................................................. 1

I.

LEGAL B ACKGROUND ....................................................................................... 3

A.

Federal Land Policy and Management Act ........................................ 3

B.

The Wild Free-Roaming Horses and Burros Act ............................. 4

II.

F ACTUAL B ACKGROUND ................................................................................... 5

III.

PROCEEDINGS BELOW ...................................................................................... 9

SUMMARY OF THE ARGUMENT ................................................................................. 11

STANDARD OF REVIEW ................................................................................................. 12

ARGUMENT .......................................................................................................................... 13

A.

BLM had discretion to determine when action is necessary to remove

wild horses from public lands, but BLM has not made the necessaryfindings .............................................................................................................. 15

B.

Exceeding the high end of AMLs is insufficient to justify the removalof wild horses and burros from public land ................................................ 16

C.

The Act gives BLM the discretion to choose the appropriate methodsfor addressing overpopulation ....................................................................... 17

D. Even if the Act were ambiguous, Wyoming’s suit fails ............................. 21

CONCLUSION ...................................................................................................................... 22

ORAL ARGUMENT STATEMENT ............................................................................... 22



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TABLE OF AUTHORITIES

Am. Horse Prot. Ass’n v. Frizzell ,403 F. Supp. 1206 (D. Nev. 1975) ............................................................................ 20

American Horse Protection Ass’n v. Watt ,694 F.2d 1310 (D.C. Cir. 1982) ............................................................................ 4, 20

Animal Protection Inst. of Am .,151 IBLA 396 (2000) ................................................................................................... 16

Fund for Animals v. BLM ,460 F.3d 13 (D.C. Cir. 2006) ........................................................................................ 4

Habitat for Horses v. Salazar ,745 F. Supp. 2d 438 (S.D. N.Y. 2010) ...................................................................... 20

In Def. of Animals v. U.S. Dep’t of Interior ,751 F.3d 1054 (9th Cir. 2014) ......................................................... 6-9, 13, 17-19, 21

Kane Cnty., Utah v. Salazar ,562 F.3d 1077 (10th Cir. 2009) .................................................................................. 12

Lujan v. Nat’l Wildlife Fed’n ,497 U.S. 871 (1990) ........................................................................................ 13, 15, 16

Norton v. S. Utah Wilderness Alliance (“SUWA”),542 U.S. 55 (2004) ................................................................................ 3, 13-15, 20, 21

Our Children’s Earth Found. v. EPA,527 F.3d 842 (9th Cir. 2008) ...................................................................................... 22

Perkins v. Bergland ,

608 F.2d 803 (9th Cir. 1979) ...................................................................................... 20

Sierra Club v. Thomas , 828 F.2d 783 (D.C. Cir. 1987) ................................................................................... 22

Sierra Club v. Whitman ,268 F.3d 898 (9th Cir. 2001) ............................................................................... 19, 20



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Wyoming v. U.S. Dep’t of Agric .,661 F.3d 1209 (10th Cir. 2011) ............................................................................. 4, 20

STATUTES:

Administrative Procedure Act:5 U.S.C. § 706(1) ................................................................. 1, 9, 12, 13, 14, 15, 20, 22

The Wild Free-Roaming Horses and Burros Act:16 U.S.C. § 1331 ............................................................................................................. 4

16 U.S.C. §§ 1331-1340 .............................................................................................1, 4

16 U.S.C. § 1332(c) ........................................................................................................ 5

16 U.S.C. § 1332(f) ........................................................................................................ 5

16 U.S.C. § 1333(a) ........................................................................................... 4, 13, 14

16 U.S.C. § 1333(b)(1) ......................................................................... 5, 14, 18, 21, 22

16 U.S.C. § 1333(b)(2) ............................................................................. 10, 15, 19, 21

16 U.S.C. § 1333(b)(2)(i)-(iv) ...................................................................................... 16

Clean Water Act:33 U.S.C. § 1319(a)(3) ................................................................................................. 19

Federal Land Policy and Management Act:43 U.S.C. §§ 1701-1787 ................................................................................................. 3

43 U.S.C. § 1702(c) ........................................................................................................ 3

43 U.S.C. § 1732(a) ................................................................................................. 3, 19

Consolidated and Further Continuing Appropriations Act, 2015,Pub. L. 113-235, 128 Stat. 2130 (Dec. 16, 2014) ...................................................... 6



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RULES AND REGULATIONS:

43 C.F.R. § 4710.1 ..................................................................................................................... 5

43 C.F.R. § 4710.3-1 .................................................................................................................. 5

43 C.F.R. § 4720.1 ................................................................................................................... 16

LEGISLATIVE HISTORY:

H.R. Rep. No. 95-1122, 95th Cong., 2d Sess. 23 (1978) ..................................................... 4



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STATEMENT OF RELATED CASES

There are no prior or related appeals under Tenth Circuit Rule 28.2(C)(1).

While not strictly related in that the cases involves different legal claims, several

of the parties here are involved in another Wild Horse Act case pending before this

Court, American Wild Horse Preservation Campaign v. Jewell , No. 15-8033.

GLOSSARY OF ACRONYMS

AMLs Appropriate Management Levels

APA Administrative Procedure Act

BLM U.S. Bureau of Land Management

EPA U.S. Environmental Protection Agency

FLPMA Federal Land Policy and Management Act

NEPA National Environmental Policy Act



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STATEMENT OF THE ISSUE

The Wild Free-Roaming Horses and Burros Act, 16 U.S.C. §§ 1331-1340

(“Wild Horse Act”), authorizes the Bureau of Land Management (“BLM”) to protect

and manage wild horses and burros (“wild horses”) on the public lands. When BLM

determines that wild horses are overpopulated in a given area, the Wild Horse Act

gives BLM discretion to determine how to address that overpopulation; including,

through sterilization or natural controls on population, through a determination that

there are excess animals that must be removed from public lands, or through some

combination of these or other methods. Here, BLM has not determined that there

are excess animals warranting removal in the areas at issue. Does BLM have a non-

discretionary duty to remove wild horses from BLM-administered lands?

STATEMENT OF THE CASE

Wyoming asks this Court to review “final agency inaction” under Section

706(1) of the Administrative Procedure Act (“APA”), arguing that BLM has a non-

discretionary duty to remove immediately what Wyoming contends are excess wild

horses from herd management areas and to maintain appropriate management levels

(“AMLs”) within these areas in the future. AA 13-14. But BLM is removing wild

horses from federal lands in Wyoming and elsewhere.1

In 2014, BLM conducted a

large-scale removal in Wyoming’s so-called “checkerboard” area, but then was

1http://www.blm.gov/wo/st/en/prog/whbprogram/herd_management/tentative_gather_schedule.html (last visited Feb. 10, 2016).



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promptly sued for gathering, in those litigants’ eyes, too many wild horses. See Am.

Wild Horse Pres. Campaign v Jewell , No. 14-CV-00152-NDF (D. Wyo.). Under the

consent decree in Rock Springs Grazing Ass’n v. Salazar , 11-CV-0263-NDF (D. Wyo.),

BLM is planning to conduct another gather in the checkerboard area in 2016. In

other areas of Wyoming, notwithstanding its scarce resources, BLM actively manages

herds while balancing the protections of wild horses with the needs of the range,

consistent with the agency’s multiple-use mandate. To that end, the BLM has

proposed to remove wild horses from the Red Desert Complex, which includes five

of the herd management areas at issue here, and in September 2015 issued a

preliminary environmental assessment under the National Environmental Policy Act

(“NEPA”).2 In December 2015, BLM issued another proposal, also planned for

2016, to remove excess wild horses from White Mountain and Little Colorado herd

management areas and undertake a fertility-control research project.3

Hence, BLM has taken, and will continue to take, actions in Wyoming and in

other similarly-situated states with herd management areas to address wild horse

overpopulations. But this lawsuit seeking to compel action lacks any basis in law.

Wyoming’s request for a court order compelling BLM to take action to remove

2 http://www.blm.gov/wy/st/en/info/NEPA/documents/rfo/red-desert.html (last visited Feb. 10, 2016).

3 http://www.blm.gov/wy/st/en/info/news_room/2015/december/16-wh- wmlc.html (last visited Feb. 10, 2016).



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allegedly excess wild horses in seven herd management areas in Wyoming is a

significant intrusion on BLM’s statutorily-reserved discretion to determine the best

management options and use of the agency’s scarce resources. The district court

correctly concluded that such judicial entanglement with BLM’s lawful exercise of

discretion is improper, and dismissed Wyoming’s suit. AA 330-33, 337. Wyoming

now appeals. AA 338-39.

LEGAL B ACKGROUND

Federal Land Policy and Management Act

BLM manages the public lands pursuant to the Federal Land Policy and

Management Act (“FLPMA”), 43 U.S.C. §§ 1701-1787, which directs the Secretary of

the Interior, acting through BLM, to “manage the public lands under principles of

multiple use and sustained yield, in accordance with the land use plans” developed by

the agency. 43 U.S.C. § 1732(a). Multiple-use management is a “deceptively simple

term that describes the enormously complicated task of striking a balance among the

many competing uses to which land can be put, ‘including, but not limited to,

recreation, range, timber, minerals, watershed, wildlife and fish[.]’” Norton v. S. Utah

Wilderness Alliance (“SUWA”), 542 U.S. 55, 58 (2004) (quoting 43 U.S.C. § 1702(c)).

While FLPMA requires BLM to follow multiple-use principles in general terms, that

statute imposes few, if any, specific directions on how the agency allocates resources

among competing uses. This Court thus has recognized that multiple-use statutes like



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FLPMA are broad grants of discretion to agencies like BLM. See Wyoming v. U.S. Dep’t

of Agric ., 661 F.3d 1209, 1268 (10th Cir. 2011).

The Wild Free-Roaming Horses and Burros Act

FLPMA’s provisions may give way to more specific direction in other statutes.

BLM’s responsibility for the protection and management of wild horses on public

lands derives from FLPMA’s multiple-use mandate and the Wild Horse Act, 16 U.S.C.

§§ 1331-1340. Enacted in 1971, Congress intended the Wild Horse Act to address its

concerns that wild horses were vanishing from the West, and to preserve them as

“living symbols of the historic and pioneer spirit of the West.” 16 U.S.C. § 1331. But

within a few years, the situation had reversed itself “and action [was] needed to

prevent a successful program from exceeding its goals and causing animal habitat

destruction.” American Horse Protection Ass’n v. Watt , 694 F.2d 1310, 1316 (D.C. Cir.

1982) (quoting H.R. Rep. No. 95-1122, 95th Cong., 2d Sess. 23 (1978)). In 1978,

Congress amended the Wild Horse Act, providing BLM with greater authority and

discretion to carry out the Act’s statutory mandate. Id.

As amended, the Act grants BLM authority over wild horses on federal lands

under its jurisdiction and directs the agency to protect and manage these animals “as

components of the public lands” and “in a manner that is designed to achieve and

maintain a thriving natural ecological balance” on those lands. 16 U.S.C. § 1333(a); see

generally Fund for Animals v. BLM , 460 F.3d 13, 15 (D.C. Cir. 2006). BLM implements

the Act by establishing localized herd management areas and generally through



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FLPMA land-use planning, setting AMLs for the wild horse populations within each

area. 16 U.S.C. §§ 1332(c), 1333(b)(1); 43 C.F.R. §§ 4710.1, 4710.3-1. BLM typically

uses an AML range—bounded by a “low AML” and “high AML”—for each area. In

conjunction with a requirement that BLM maintain a current inventory of wild horses,

the Act authorizes BLM to use a variety of methods to achieve AMLs, including (but

not limited to) the removal and destruction of “excess animals.” 16 U.S.C. §

1333(b)(1). As relevant, the Act defines “excess animals” as those “wild free-roaming

horses or burros…which must be removed from an area in order to preserve and

maintain a thriving natural ecological balance and multiple-use relationship in that

area.” 16 U.S.C. § 1332(f)

Before BLM may remove “excess animals” from a given herd management

area, the Act requires BLM to use current information to make two determinations:

first, “that an overpopulation exists on a given area of the public lands,” id. §

1333)(b)(2); and second, that instead of addressing overpopulation through options

“such as sterilization, or natural controls on population levels,” id. § 1333(b)(1), “that

action is necessary to remove excess animals,” id. § 1333(b)(2). Once BLM makes

these discretionary findings, the Act provides that BLM “shall immediately remove

excess animals from the range so as to achieve appropriate management levels.” Id.

F ACTUAL B ACKGROUND

Although the Act’s management direction to BLM is straightforward in theory,

reality introduces significant complexity into the management equation. For instance,



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wild horses multiply—rapidly—doubling in population every four years.4 But even as

wild horse populations have risen nationwide, Congress has curtailed many of the

tools used in preventing and mitigating deleterious effects of the animals on local

resources. Congress has decreased funding available to BLM for horse

management—thereby limiting BLM’s capacity to remove excess horses—even as

Congress has forbidden BLM from humanely destroying excess horses stored in

BLM’s long-term holding faculties. See In Def. of Animals v. U.S. Dep’t of Interior , 751

F.3d 1054, 1059 n.3 (9th Cir. 2014). Except for a brief interval between fiscal years

2005 and 2009,5 Congress has prohibited the use of appropriated funds for the

destruction of healthy, excess horses. See, e.g ., Consolidated and Further Continuing

Appropriations Act, 2015 , Pub. L. 113-235, 128 Stat. 2130, 2399 (Dec. 16, 2014)

(“Appropriations herein made shall not be available for the destruction of healthy,

unadopted, wild horses and burros in the care of the Bureau or its contractors or for

the sale of wild horses and burros that results in their destruction for processing into

commercial products.”). This prohibition on using appropriated funds for destroying

excess horses, combined with decreasing market demand for horses in general, means

4 See GAO Report to the Chairman, Comm. on Natural Res., House of Rep., Rpt. No.

09-77, “Bureau of Land Management: Effective Long-Term Options Needed toManage Unadoptable Wild Horses” (Oct. 2008), available at

www.gao.gov/new.items/d0977.pdf (last visited Feb. 10, 2016)

5 Even then, BLM chose not to destroy excess animals because of concerns aboutpublic and congressional reaction to the large-scale horse slaughter. Supra n.4 at 10.



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that BLM is increasingly unable to find suitable homes for healthy excess animals

through its adoption program, and unable to destroy them. Supra n.4 at 7-8; In Def. of

Animals , 751 F.3d at 1066 n.20. This situation has resulted in BLM having to house

these excess animals at its short- and long-term holding facilities, at a staggering and

escalating cost. Id . Much of BLM’s horse-management budget is now consumed by

these holding costs. Supra n.4 at 9. And as holding costs continue to increase, less

funding is available for on-range-management. Id.; AA 205. Meanwhile, competing

interests groups argue that the number of horses and burros managed in wild is

simultaneously both too high and too low. Supra n.4 at 4-5.

Due to these well-documented difficulties in managing wild horses, strategies

for managing wild horse populations are at the forefront of discussion. Most recently,

the National Academy of Sciences conducted a comprehensive review of the wild

horse program, concluding that BLM has likely underestimated the total number of

horses on public lands, and recommending that BLM use a multi-pronged approach

to manage wild populations that includes the aggressive use of population-growth

suppression tools. AA 206. As one response, BLM has invited scientists to submit

research proposals aimed at developing new or existing sterilization methods and

contraceptive vaccines, which BLM and the National Academy of Sciences will review

and study. Id. In addition, BLM intends to prepare a programmatic environmental

impact statement under NEPA to evaluate various alternative for wild-horse



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management with the goal of making its program more fiscally- and ecologically-

sustainable in the future. AA 206-07.

While those efforts are underway, BLM continues to take actions in Wyoming

and elsewhere to remove excess wild horses from the land where the agency deems

such actions to be necessary. For example, in October 2014, BLM removed 1,263

wild horses from the southwestern part of Wyoming referred to as the “checkerboard

area,” substantially reducing the area’s wild horse population.6 AA 178.

On August 21, 2014, Wyoming’s Governor Matthew H. Mead wrote to

Secretary of the Interior Sally Jewell and BLM Director Neil Kornze, alleging that

seven herd management areas in Wyoming “contain wild horses in excess of AML,”

and demanding that BLM “comply with [alleged] non-discretionary duties in the Wild

Horse Act.” AA 378-79. The seven herd management areas referred to by the

Governor were Antelope Hills, Crooks Mountain, Green Mountain, Lost Creek,

Stewart Creek, Fifteen-mile, and Little Colorado. Id. Fifteen-mile Herd Management

6 Wyoming now dismisses this action as a “decision to assist other landowners,”resulting in a “burden” that the State should not have to bear. Wyo. Br. at 33. Yet,

when BLM was sued by litigants who contended that BLM had removed too many wild horses from the checkerboard area, Wyoming supported BLM’s action andargued that its interests would benefit from the gather and removal because, as itexplained in at least one document filed in that case, the State owns thousands ofacres within the checkerboard portion of the herd management areas at issue in thatcase. See Am. Wild Horse Pres. Campaign v. Jewell , No. 14-CV-00152, ECF No. 26-1 at4-8 (D. Wyo.). Thus, Wyoming’s statement is inconsistent with its prior position.



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Area is in northern Wyoming; the remaining herd management areas at issue are in

central Wyoming, often referred to as the Red Desert. AA 203.

In its November 5, 2014 response, BLM acknowledged Wyoming’s concerns,

while explaining that its gather plans for fiscal year 2015 were being developed and

that it would “carefully consider the actions needed in Wyoming along with all wild

horse management requirements in 10 western states.” AA 178. But BLM, at that

time, had made no findings that the herd management areas of concern to Wyoming

were overpopulated or that action was necessary to remove excess animals.7

Id.

PROCEEDINGS BELOW

On December 8, 2014, Wyoming filed a petition asking the district court to

review so-called “final agency inaction,” arguing that the BLM has failed to manage

wild horses in Wyoming in compliance with the Wild Horse Act. AA 12-15.

Wyoming invoked APA § 706(1), and contended that BLM has a non-discretionary

duty to remove immediately what it contends are excess wild horses from the seven

allegedly overpopulated herd management areas referred to by Governor Mead and to

maintain these areas within AMLS in the future. AA 13-14. Wyoming sought, among

other relief, an order broadly compelling BLM “to remove excess wild horses from

Wyoming public lands and prevent wild horse overpopulations in Wyoming.” AA 14.

7 Since this case was filed, BLM has proposed actions to gather wild horses from sixof the seven herd management areas at issue: Lost Creek, Stewart Creek, AntelopeHills, Crooks Mountain, Green Mountain, and Little Colorado. Supra n.2-3.



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Because the petition failed to state a claim under APA § 706(1) for which relief

could be granted, where BLM does not have a non-discretionary duty to remove wild

horses from the herd management areas at issue, BLM moved to dismiss Wyoming’s

petition. AA 179-80. A coalition of wild horse enthusiasts intervened in the suit and

also filed a motion to dismiss. AA 8, 208-09. The district court granted the motions,

dismissed the petition, and entered judgment for BLM. AA 325-37.

After recounting the Wild Horse Act’s statutory text and structure, the district

court rejected Wyoming’s argument that exceeding the high end of the AML

automatically triggers a non-discretionary duty to immediately remove wild horses

from the range. AA 330-33. Instead, the court concluded that the Act “affords

[BLM] broad discretion in determining whether action is necessary to remove excess

animals, and an overpopulation by itself will not suffice to require discretionary

action.” AA 333. In so concluding, the district court credited BLM’s and

Intervenors’ arguments that the Wild Horse Act requires BLM to make two separate

determinations before initiating a process to remove horses from the land: “(1) that an

overpopulation exists on a given area of the public lands, and (2) that action is

necessary to remove ‘excess animals.’” AA 330-31 (citing 16 U.S.C. § 1333(b)(2))

(emphasis added by court). The court added that the definition of “excess animals”

requires a specific agency determination that action is necessary to “preserve and

maintain a thriving and natural ecological balance and the multiple-use relationship in

a particular area” and thus merely exceeding an AML alone is insufficient under the



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statute. AA 331. Because the Act gives BLM the discretion to determine whether

removal is necessary, the court concluded that Wyoming had failed to allege a discrete

and non-discretionary duty that BLM was required to take, but had not taken.

The district court further rejected what it deemed to be Wyoming’s alternative

argument that sought to have the court order BLM to remove excess wild horses,

regardless of whether BLM had a discrete and non-discretionary duty to do so, merely

because those horses “consume valuable forage,” thus allegedly reducing the value of

such lands for grazing. AA 335. In rejecting this argument, the district court declared

“[i]f [the Supreme Court’s decision in SUWA ] stands for nothing else, it is a clear

admonition against judges issuing directives to federal agencies which result in either

undue judicial interference with lawful discretion, juridical entanglement in abstract

policy disagreements, or the interjection of a judge into day-to-day agency

management in the context of broad statutory mandates.” Id. 8

SUMMARY OF THE ARGUMENT

Wyoming’s suit under APA § 706(1) seeking to compel BLM to remove

allegedly excess wild horses from seven herd management areas lacks merit. APA

§706(1) claims seeking to compel agency action can proceed only where an agency has

8 Wyoming seemingly abandons this alternative argument on appeal. See Wyo. Br. at26 (“To be clear, Wyoming is not claiming that the Bureau failed to comply with anabstract policy for managing ‘wild free-roaming horses and burros in a manner that isdesigned to achieve and maintain a thriving natural and ecological balance.’”).



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failed to take a discrete agency action that it is required to take. Here, the Wild Horse

Act, consistent with FLPMA’s multiple-use management regime, vests BLM with

broad discretion and does not require BLM to remove horses from public lands at

least until BLM has determined, in its discretion, there are excess animals in the herd

management areas and that action is necessary to remove them. BLM has not made

these final determinations. Thus, Wyoming’s § 706(1) claim cannot succeed.

Wyoming’s contention that a discrete and non-discretionary duty to

immediately remove allegedly excess horses from public lands is triggered

automatically when the wild horse population in a given herd management area

exceeds an AML is incorrect. BLM has long viewed merely exceeding an AML to be

an insufficient basis, by itself, to justify a removal action. Before granting BLM the

discretion to remove excess horses from the land, the Wild Horse Act requires BLM

to determine that an overpopulation exists and that action is necessary to remove

excess animals. BLM has not made final determinations that there is an

overpopulation of wild horses or that action is necessary to remove allegedly excess

animals. Thus, BLM has neither a mandatory duty to remove so-called excess horses,

nor the discretion under Section 3 of the Act to remove any such horses from the

land unless and until the agency, in its discretion, makes the required findings.

STANDARD OF REVIEW

This Court reviews de novo the district court’s decision to grant the motions to

dismiss. See Kane Cnty. v. Salazar , 562 F.3d 1077, 1085 (10th Cir. 2009).



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ARGUMENT

Because the Wild Horse Act does not contain an independent grant of

jurisdiction or cause of action, the APA governs judicial review of BLM’s compliance

with the Act. See In Defense of Animals , 751 F.3d at 1061. Section 706(1) of the APA,

the provision invoked by Wyoming here, empowers courts to “compel agency action

unlawfully withheld or unreasonably delayed.” A failure-to-act 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.” SUWA, 542 U.S. at 64 (emphasis in original). Courts

cannot under § 706(1) compel agencies to comply with “broad statutory mandates”

that are “mandatory as to the object[s] to be achieved” but that leave agencies with

“discretion in deciding how to achieve” those objectives. Id. at 66–67; see also Lujan v.

Nat’l Wildlife Fed’n , 497 U.S. 871, 890 (1990) (“ NWF ”). The APA imposes this strict

limit on a court’s jurisdiction “to protect agencies from undue judicial interference

with their lawful discretion, and to avoid judicial entanglement in abstract policy

disagreements which courts lack both expertise and information to resolve.” SUWA,

542 U.S. at 66.

Among the examples of “judicial entanglement in abstract policy

disagreements” which the Supreme Court cited as ill-suited for suit under § 706(1) was

the Wild Horse Act’s directive to “manage wild free-roaming horses and burros in a

manner that is designed to achieve and maintain a thriving natural ecological balance.”

Id. at 66-67 (quoting 16 U.S.C. § 1333(a)). As the Supreme Court recognized, the



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Wild Horse Act confers considerable discretion on BLM in how it manages wild

horses on public lands, including determining “whether and where an overpopulation

exists and whether action should be taken to remove excess animals” as well as

“whether appropriate management levels should be achieved by the removal or

destruction of excess animals, or other options.” 16 U.S.C. § 1333(b)(1). The Act

thus gives BLM the discretion “to work out compliance with the broad statutory

mandate,” SUWA, 542 U.S. at 66-67, to “protect and manage wild free-roaming

horses. . . as components of the public lands,” 16 U.S.C. § 1333(a). Suits seeking to

compel compliance with that mandate thus are not cognizable under § 706(1).

Despite SUWA, Wyoming here reads into the Wild Horse Act a discrete and

non-discretionary duty that BLM allegedly has failed to undertake so that Wyoming

may affect BLM’s “day-to-day management”9 of its wild-horse program that the

9 For instance, BLM undertakes removal actions for a variety of reasons, including: (1)emergencies; (2) court orders; (3) nuisance animals; (4) landowner requests; and (5) toachieve and maintain population size within AML. AA 455 (establishing gatherpriorities). BLM must balance these competing priorities, and must also coordinategathers to improve gather efficiency and implementation of other population-controlmeasures such as fertility control and sex-ratio adjustments. Id. Moreover, BLM setsa national gather schedule (as opposed to an area-by-area or state-by-state schedule)because of the agency’s limited funding and holding space. Id. Through this suit,

Wyoming wants removal actions that seek “to achieve and maintain population size within AML” to receive priority over other removal actions. And, in particular, Wyoming wants BLM to prioritize actions in Wyoming-areas over those areas in otherstates, despite the fact Wyoming is only one of ten western states with herdmanagement areas. AA 178. It is thus beyond reasonable dispute that Wyoming’sargument, if accepted, would have a tremendous detrimental impact on BLM’s abilityto effectively and fairly manage the wild horse program.



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Supreme Court otherwise has said is off-limits to § 706(1) suits. See SUWA, 542 U.S.

at 66-67; see also NWF , 497 U.S. at 892-93 (“But it is at least entirely certain that the

flaws in the entire ‘program’—consisting principally of the many individual actions

referenced in the complaint, and presumably actions yet to be taken as well—cannot

be laid before the courts for wholesale correction under the APA, simply because one

of them that is ripe for review adversely affects one of respondent’s members.”). But,

as the district court recognized (AA 330-33), the Act’s text and structure as well as

BLM’s interpretation of the Act do not support Wyoming’s efforts to avoid SUWA.

BLM has discretion to determine when action is necessary toremove wild horses from public lands, but BLM has not made thenecessary findings for removal here.

Congress enacted the Wild Horse Act “to protect and manage wild free-

roaming horses and burros as components of public lands.” 16 U.S.C. § 1333(a).

Nevertheless, in recognition that protecting wild horses and burros may lead to an

“excess” of those animals on the range, Congress provided BLM with the discretion

to remove excess animals from public lands, if the agency makes two prerequisite

findings. First, BLM must find “that an overpopulation exists on a given area of the

public lands.” 16 U.S.C. § 1333(b)(2). Second, BLM must find “that action is

necessary to remove excess animals.” Id. BLM has not made final findings that there

are overpopulations or that actions are necessary to remove excess animals from any

of the seven herd management areas of concern to Wyoming. Accordingly, BLM

does not have a mandatory duty to remove wild horses from those areas.



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Exceeding the high end of AMLs does not trigger the removal of wild horses and burros from public land.

Undeterred, Wyoming contends that by virtue of BLM having previously set

AMLs for these seven herd management areas, the agency already has determined for

purposes of § 1333(b)(2) that the areas are overpopulated when the agency’s annual

population estimates indicate that the wild horse and burro populations may be

exceeding the upper limits of the AMLs. But that is mistaken. The data on which

Wyoming relies is only an estimate of the population in a given area. Wild horses and

burros are notoriously challenging to count. Supra n.4 at 39. Before taking action to

remove animals, the BLM attempts to verify its population estimates.

Relatedly, a decision to remove excess horses must be made using current

information, including: the current inventory of lands, land-use plans, environmental

impact statements, the current inventory of wild horses, and whatever other

information is available to the agency. 16 U.S.C. § 1333(b)(2)(i)-(iv); see also 43 C.F.R.

§ 4720.1 (“Upon examination of current information and a determination by the

authorized officer that an excess of wild horses or burros exists, the authorized officer

shall remove the excess animals immediately in the following order…”) (emphasis

added); AA 475. Thus, BLM generally should not base an action solely on an

exceedance of AMLs (which may be dated), without the consideration of additional

current information. See e.g., Animal Protection Inst. of Am., 151 IBLA 396, 401 (2000)

(“A determination that removal of wild horses is warranted must be based on research



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and analysis and on monitoring programs involving studies of grazing utilization,

trends in range condition, actual use, and climatic factors.”). While exceeding an

AML may be evidence of overpopulation, it is not always conclusive—a separate

determination must be made. See, e.g., In Def. of Animals , 751 F.3d at 1063 & n.10

(recognizing that, in addition to evidence of the area’s exceeding the AMLs, BLM

based its removal action on “carefully-documented concerns about the deterioration

of riparian areas and cultural sites caused by overpopulation, as well as the likelihood

of insufficient forage to sustain the growing herd”). That is why the BLM-manual

informs BLM employees that “[j]ustifying a removal based on nothing more than the

established AML is not acceptable.” AA 475 (Section 7.1.2). In the end, because

BLM has not made a final determination that there is an overpopulation in any of the

herd management areas at issue, Wyoming’s arguments must fail.

The Act gives BLM the discretion to choose the appropriatemethods for addressing overpopulation.

Even where BLM has determined that an overpopulation exists, the Act gives

BLM the discretion to choose the appropriate tools to address that situation. See, e.g.,

In Def. of Animals , 751 F.3d at 1060 (noting that BLM considered an “alternative that

would use only fertility control measures but no herd thinning or relocation”). The

Act states that BLM has the discretion to determine “whether action should be taken

to remove excess animals” and “whether appropriate management levels should be

achieved by the removal and destruction of excess animals, or other options (such as



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sterilization, or natural controls on population levels).” 16 U.S.C. § 1333(b)(1)

(emphasis added). Certainly, removal actions have been BLM’s primary tool for

addressing overpopulation situations in the past. But the Act also contemplates

“destruction of excess animals.” Id. (emphasis added). Where Congress has forbidden

BLM from destroying healthy excess animals and where caring for previously-

removed excess animals in long-term holding facilities largely consumes BLM’s

budget, BLM must use “other options” under § 1333(b)(1) to achieve AMLs, and be

more selective with its removal actions. That is why the National Academy of Science

has recommended that BLM use its management discretion to adopt “a multi-

pronged approach” to achieve AMLs. AA 206.

Because the Act gives BLM the discretion to select the tools necessary to

achieve AMLs, Wyoming misreads the Act when it argues that the statute requires

BLM to address overpopulation by “immediately remov[ing] excess animals from the

range.” Wyo. Br. at 25 (citing 16 U.S.C. § 1333(b)(2)). In truth, the Act authorizes

BLM to “immediately remove excess animals” only if BLM determines that a removal

action is necessary. Id. Put differently, the language of § 1333(b)(2) on which

Wyoming relies merely states what follows once BLM has made the two findings

required in the statute’s preceding independent clauses: (1) that an overpopulation

exists; and (2) that removal action is necessary. Id. If BLM makes these discretionary

prerequisite findings, only then does the Act’s instruction in the dependent clause to

“immediately remove excess animals” become operative. Id.



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In this way, § 1333(b)(2) of the Wild Horse Act is similar to the Clean Water

Act provision addressed in Sierra Club v. Whitman , 268 F.3d 898 (9th Cir. 2001). The

provision at issue in Sierra Club states, in relevant part:

Whenever on the basis of any information available to him the Administrator [of EPA] finds that any person is in violation of [the Act]…, he shall issue an order requiring such person to comply with [the Act], or he shall bring a civil action….

33 U.S.C. § 1319(a)(3). In rejecting a non-discretionary duty suit to compel EPA to

take action against a waste-water-treatment plant operator where available information

showed the operator to be in violation of the Act, the court held that the duty to take

action was triggered only after EPA made the findings required by the Act, and that

EPA had not made any such findings. 268 F.3d at 902-03. Moreover, the court held

that, even if EPA had made the requisite findings, the Act’s “shall order” language

merely gave the agency the discretion to take action—it did not create a non-

discretionary duty. Id. at 903-05. The same is true of Wild Horse Act’s language here.

The Act grants BLM the discretion to remove excess horses if the agency makes the

prerequisite findings, which BLM has not yet made.

The discretion granted to BLM in the Wild Horse Act to select the appropriate

tools to achieve AMLs is consistent with the discretion Congress granted to BLM

generally when Congress directed the agency to manage public lands under multiple-

use principles. See 43 U.S.C. 1732(a). As this Court has recognized in rejecting an

argument made by Wyoming in a prior case, multiple-use principles “breathe[]



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discretion at every pore.” See Wyoming , 661 F.3d at 1268 (quoting Perkins v. Berglund ,

608 F.2d 803, 806–07 (9th Cir. 1979) (internal quotations and citation omitted)). Yet

§ 706(1) claims may proceed only where an agency entirely lacks discretion. See

SUWA, 542 U.S. at 63 (explaining that APA codified mandamus remedy which

allowed “the ordering of a precise, definite act…about which [an official] had no

discretion what[so]ever”) (internal quotations and citations omitted). Thus, the

significant discretion that Congress gave BLM to manage wild horses under multiple-

use principles as components of public lands means that any § 706(1) suit seeking to

compel BLM to manage wild horses in a particular manner must fail as a matter of

law. See, e.g., Habitat for Horses v. Salazar , 745 F. Supp. 2d 438, 453 (S.D. N.Y. 2010)

(“the judicial system must afford deference to the BLM in fulfilling its obligations to

protect wild horses as one of the many uses on the public lands”); Am. Horse Prot.

Ass’n v. Frizzell , 403 F. Supp. 1206, 1217 (D. Nev. 1975) (noting that BLM must be

afforded a “high degree of discretionary authority” in managing herds); Watt , 694 F.2d

at 1318.

For its part, Wyoming ignores that Congress gave BLM the discretion to select

the appropriate methods for achieving AMLs, 16 U.S.C. § 1333(b)(1), arguing that the

existence of an estimated overpopulation alone requires BLM to immediately begin a

process to remove horses from an area. Lacking support in the statute itself,

Wyoming relies on some imprecise wording used by the Ninth Circuit in In Defense of

Animals , which says that “BLM is required to remove wild horses and burros from a



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given area of the public lands when an overpopulation exists.” Wyo. Br. at 23 (citing

In Def. of Animals , 751 F.3d at 1062). But, as explained, the Act does not authorize

BLM to remove animals based on an alleged overpopulation alone—the Act

contemplates two separate findings—BLM must also determine that “that action is

necessary to remove excess animals.” 16 U.S.C. 1333(b)(2). While Wyoming seizes

on the court’s imprecision in this one sentence, the Ninth Circuit correctly recognized

in other parts of the decision that BLM must also determine that removal action is

necessary before it may remove excess animals from public lands. See In Def. of

Animals , 751 F.3d at 1062-63. Because the Act’s text and structure makes clear that

BLM has the discretion to determine both whether an overpopulation exists and

whether to take a removal action to address that situation, Wyoming’s argument fails.

***

Accordingly, the district court correctly dismissed this suit because it fails to set

forth a discrete agency action that BLM was required to take concerning the removal

of excess horses from public lands. The Wild Horse Act vests BLM with

considerable discretion when managing wild horses on federal lands, including the

discretion to determine when action is necessary to remove excess animals.

Even if the Act were ambiguous, Wyoming’s suit fails.

Finally, to survive a motion to dismiss, a failure-to-act claim requires the

identification of a “specific, unequivocal command” that the agency is failing to

perform as a “ministerial” matter. See SUWA, 542 U.S. at 63-64. Yet, as explained,



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the Act unambiguously grants BLM wide discretion to determine “whether and where

an overpopulation exists and whether action should be taken to remove excess

animals” and “whether appropriate management levels should be achieved by the

removal or destruction of excess animals, or other options.” Id. § 1333(b)(1). But

even if the Act were ambiguous, a non-discretionary duty must be “clear cut,”

“readily-ascertainable,” and not “only [ ] the product of a set of inferences based on

the overall statutory scheme.” Our Children’s Earth Found. v. EPA, 527 F.3d 842, 851

(9th Cir. 2008) (citing Sierra Club v. Thomas , 828 F.2d 783, 791 (D.C. Cir. 1987)). Thus,

if the Court finds the Act to be ambiguous on the question of whether exceeding an

AML automatically triggers a non-discretionary duty to remove excess animals from a

herd management area, Wyoming’s § 706(1) claim still fails as a matter of law.

CONCLUSION

For the foregoing reasons, this Court should affirm.

ORAL ARGUMENT STATEMENT

The United States requests oral argument because oral argument will aid the

Court in resolving this matter. The United States suggests 10 minutes per side.



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Respectfully submitted,

JOHN C. CRUDEN Assistant Attorney General

/s/ Allen M. Brabender ALISON C. FINNEGAN ALLEN M. BRABENDER Attorneys, U.S. Dep’t of Justice Environment & Natural Res. DivisionP.O. Box 7415 (Ben Franklin Ste.)Washington, DC 20044Telephone: (202) 514-5316 [email protected]

FEBRUARY 2016DJ # 90-8-7-07798



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CERTIFICATE OF COMPLIANCE

I certify that pursuant to Fed. R. App. P. 32(a)(7)(C) that this brief is

proportionately spaced, has a typeface of 14 points or more and contains 5,675 words.I used Microsoft Word 2013 to prepare this brief.

CERTIFICATE OF DIGITAL SUBMISSION

I certify that: (a) all required privacy redactions have been made (none werenecessary) and, with the exception of those redactions, every document submitted inDigital Form or scanned PDF format is an exact copy of the written document filed

with the Clerk; and (b) the digital submissions have been scanned for viruses with themost recent version of System Center Endpoint Protection, version 1.213.6023,updated through February 12, 2016, and, according to the program, are virus free.

CERTIFICATE OF SERVICE

I certify that on February 12, 2016, I electronically filed the foregoing with theClerk of the Court for the United States Court of Appeals for the Tenth Circuit usingthe appellate CM/ECF system. I certify that all participants in this case are registeredCM/ECF users and service will be accomplished by the CM/ECF system.

/s/ Allen M. Brabender ALLEN M. BRABENDERU.S. Department of JusticeEnvironment & Natural Res. Div.P.O. Box 7415

Washington, DC 20044 Telephone: (202) [email protected]


Documents

Legal State of Wy Appeal Governments Answering Brief