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    CHRISTOPHER A. CROFTSUnited States Attorney

    NICHOLAS VASSALLO (WY Bar No. 5-2443)Assistant United States Attorney

    P.O. Box 668Cheyenne, WY 82003-0668

    Telephone: [email protected]

    JOHN C. CRUDEN, Assistant Attorney General

    COBY HOWELL, (WY Bar No. 6-3589), Senior Trial AttorneyDESMOND T. READY, Trial AttorneyU.S. Department of Justice

    Environment & Natural Resources Division

    1000 SW Third AvenuePortland, OR 97204-2902(503) 727-1000

    (503) 727-1117 (fx)[email protected]

    Attorneys for Federal Respondents

    IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF WYOMING

    AMERICAN WILD HORSE

    PRESERVATION CAMPAIGN, et al.,

    Petitioners,

    v.

    S.M.R. JEWELL, Secretary of the United

    States Department of the Interior, et al.,

    Respondents.___________________________________

    )

    )

    ))

    ))

    )

    )

    )

    ))

    Case No. 1:14-cv-152-F

    FEDERAL RESPONDENTS BRIEF

    Case 2:14-cv-00152-NDF Document 71 Filed 01/20/15 Page 1 of 54

    mailto:[email protected]:[email protected]
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    TABLE OF CONTENTS

    I. INTRODUCTION ............................................................................................... 1

    II. LEGAL BACKGROUND ................................................................................... 2

    A. The Wild Free-Roaming Horses and Burros Act ..................................... 2

    B. Checkerboard Land Authorities ................................................................ 4

    C. NEPA ........................................................................................................ 6

    III. FACTUAL BACKGROUND ............................................................................. 7

    A. Wyoming Checkerboard Lands and Wild Horses .................................... 7

    B. RSGA v. Salazar ....................................................................................... 9

    C. Implementation of the Consent Decree .................................................. 11

    D. BLMs 2014 Gather ................................................................................ 13

    E. Procedural History .................................................................................. 15

    IV. STANDARD OF REVIEW ............................................................................... 16

    V. ARGUMENT ..................................................................................................... 17

    A. Petitioners Claims are Moot .................................................................. 17

    B. BLM Complied with the Wild Horses Act ............................................. 26

    C. BLM Fully Complied with NEPA .......................................................... 34

    i. BLM Correctly Determined that a CATEX was Appropriate ..... 34

    ii. Public Involvement is not Required in CATEX Decisions ......... 40

    iii. BLM did not Depart from its own Guidance or Past Practice ..... 41

    D. BLMs Actions did not Contravene FLPMA ......................................... 43

    VI. CONCLUSION ................................................................................................. 45

    i

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    TABLE OF AUTHORITIES

    Am. Horse Prot. Ass'n v. Andrus,

    460 F. Supp. 880 (D. Nev. 1978) .......................................................................................35

    Am. Horse Prot. Ass'n v. Frizzell,

    403 F. Supp. 1206 (D. Nev. 1975) .......................................................................................4

    Am. Horse Prot. Ass'n v. Watt,

    694 F.2d 1310 (D.C. Cir. 1982) .....................................................................................4, 29

    Arizonans for Official English v. Arizona,

    520 U.S. 43 (1997) .............................................................................................................18

    Balt. Gas & Elec. Co. v. Natural Res. Def. Council,

    462 U.S. 87 (1983) .......................................................................................................16, 17

    Camfield v. United States,

    167 U.S. 518 (1897) .......................................................................................................5, 27

    Cent. Wyo. Law Assocs. P.C. v. Denhardt,60 F.3d 684 (10th Cir. 1995) .............................................................................................24

    Chevron U.S.A. v. NRDC,467 U.S. 837 (1984) .....................................................................................................26, 31

    Chihuahuan Grasslands Alliance v. Kempthorne,545 F.3d 884 (10th Cir. 2008) ...........................................................................................20

    Christensen v. Harris Cnty.,

    529 U.S. 576 (2000) ...........................................................................................................41

    Church of Scientology of Cal. v. United States,

    506 U.S. 9 (1992) ...............................................................................................................18

    Citizens' Comm. to Save Our Canyons v. Krueger,

    513 F.3d 1169 (10th Cir. 2008) .........................................................................................37

    Citizens' Comm. to Save Our Canyons v. U.S. Forest Serv.,

    297 F.3d 1012 (10th Cir. 2002) ...............................................................................7, 34, 37

    Citizens to Pres. Overton Park v. Volpe,401 U.S. 402 (1971) ...........................................................................................................16

    City of New York v. FCC,

    486 U.S. 57 (1988) .................................................................................................29, 30, 33

    Colo. Wild v. U.S. Forest Serv.,

    435 F.3d 1204 (10th Cir. 2006) ...........................................................................6, 7, 34, 40

    ii

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    Cox v. Phelps Dodge Corp.,

    43 F.3d 1345 (10th Cir. 1994) ...........................................................................................20

    FCC v. Fox Television Stations,556 U.S. 502 (2009) ...........................................................................................................42

    FDA v. Brown & Williamson Tobacco Corp.,

    529 U.S. 120 (2000) ...........................................................................................................28

    Fund for Animals v. BLM,

    460 F.3d 13 (D.C. Cir. 2006) ...............................................................................................3

    High Country Citizens' Alliance v. U.S. Forest Serv.,

    203 F.3d 835 (Table)No. 97-1373, 2000 WL 147381 (10th Cir. Feb. 7, 2000) ...........7, 36

    Idaho Rivers United v. U.S. Forest Serv.,

    No. 1:11-CV-95-BLW, 2013 WL 474851 (D. Idaho Feb. 7, 2013) ..................................14

    In Def. of Animals v. U.S. Dept. of Interior,808 F. Supp. 2d 1254 (E.D. Cal. 2011)..............................................................................21

    In Def. of Animals v. U.S. Dept. of Interior,

    648 F.3d 1012 (9th Cir. 2011) ...........................................................................................21

    Jackson v. Cal. Dep't of Mental Health,

    399 F.3d 1069 (9th Cir.) ....................................................................................................18

    Jordan v. Sosa,654 F.3d 1012 (10th Cir. 2011) .........................................................................................22

    Kleppe v. Sierra Club,427 U.S. 390 (1976) ...........................................................................................................17

    Leo Sheep Co. v. United States,440 U.S. 668 (1979) .......................................................................................................5, 27

    Marsh v. Or. Natural Res. Council,490 U.S. 360 (1989) .....................................................................................................16, 17

    McAlpine v. Thompson,

    187 F.3d 1213 (10th Cir. 1999) .........................................................................................18

    McClendon v. City of Albuquerque,

    100 F.3d 863 (10th Cir. 1996) .....................................................................................14, 19

    Morris v. U.S. Nuclear Regulatory Comm'n,

    598 F.3d 677 (10th Cir. 2010) ...........................................................................................16

    iii

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    Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co.,

    463 U.S. 29 (1983) .............................................................................................................16

    Mountain States Legal Found. v. Hodel,

    799 F.2d 1423 (10th Cir. 1986) ...............................................................................6, 27, 35

    Murphy v. Hunt,

    455 U.S. 478 (1982) ...........................................................................................................18

    Natl Assn of Home Builders v. Defenders of Wildlife,

    551 U.S. 644 (2007) .....................................................................................................30, 31

    Olenhouse v. Comodity Credit Corp.,

    42 F.3d 1560 (10th Cir. 1994) .................................................................................7, 16, 36

    Regions Hosp. v. Shalala,

    522 U.S. 448 (1998) ...........................................................................................................31

    Rio Grande Silvery Minnow v. Bureau of Reclamation,

    601 F.3d 1096 (10th Cir. 2010) ...................................................................................19, 20

    Rock Springs Grazing Assn v. Salazar,935 F. Supp. 2d 1179 (D. Wyo. 2013) ...........................................7, 8, 9, 10, 11, 28, 35, 43

    S. Utah Wilderness Alliance v. Smith,110 F.3d 724 (10th Cir. 1997) .....................................................................................14, 23

    U.S. ex rel. Bergen v. Lawrence,

    848 F.2d 1502 (10th Cir. 1988) ...........................................................................................6

    Unified Sch. Dist. No. 259 v. Disability Rights Ctr. of Kan.,491 F.3d 1143 (10th Cir. 2007) .........................................................................................25

    United Keetoowah Band of Cherokee Indians of Okla. v. U.S. Dept of Housing and

    Urban Dev.,567 F.3d 1235 (10th Cir. 2009) .........................................................................................33

    United States v. Shimer,367 U.S. 374 (1961) ...........................................................................................................29

    Utah Envtl. Cong. v. Bosworth,

    443 F.3d 732 (10th Cir. 2006) .....................................................................................38, 40

    Utah Envtl. Cong. v. Russell,

    518 F.3d 817 (10th Cir. 2008) ...........................................................................................39

    Utah v. Babbitt,

    137 F.3d 1193 (10th Cir. 1998) ........................................................................................15

    iv

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    Weinstein v. Bradford,

    423 U.S. 147 (1975) ...........................................................................................................22

    Wilderness Socy v. Kane County, Utah,

    632 F.3d 1162 (10th Cir. 2011) .........................................................................................29

    Wild Earth Guardians v. U.S. Forest Serv.,

    668 F. Supp. 2d 1314 (D.N.M. 2009) ................................................................................36

    Wyoming v. U.S. Dept of Agric.,

    414 F.3d 1207 (10th Cir. 2005) .........................................................................................25

    STATUTES

    5 U.S.C. 701-706 ......................................................................................................................15

    5 U.S.C. 706(2)(A)......................................................................................................................16

    16 U.S.C. 1331 ..............................................................................................................................2

    16 U.S.C. 1332(c) .........................................................................................................................3

    16 U.S.C. 1332(f) ..........................................................................................................................3

    16 U.S.C. 1333 ......................................................................................................8, 21, 26, 28, 32

    16 U.S.C. 1333(a) .........................................................................................................................3

    16 U.S.C. 1333(b) .......................................................................................................................41

    16 U.S.C. 1333(b)(1) ....................................................................................................................3

    16 U.S.C. 1334 ..................................................................................................4, 8, 21, 26, 27, 28

    16 U.S.C. 1338 ............................................................................................................................27

    42 U.S.C. 4332(C) ........................................................................................................................6

    43 U.S.C. 1061-65 ........................................................................................................................5

    43 U.S.C. 1701(b) .......................................................................................................................43

    43 U.S.C. 1712 ............................................................................................................................44

    Pub. L. No. 95-514, 2(a)(6), 92 Stat. 1803 (1978), 43 U.S.C. 1901(a)(6) ...............................30

    Act of Jul. 1, 1862, ch. 120, 12 Stat. 489 .....................................................................................4, 5

    v

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    REGULATIONS

    40 C.F.R. 1500.1(c).......................................................................................................................6

    40 C.F.R. 1501.4(b) ......................................................................................................................6

    40 C.F.R. 1507.3(b)(2) ............................................................................................................7, 33

    40 C.F.R. 1508.4 ...................................................................................................................33, 36

    40 C.F.R. 1508.9 ...........................................................................................................................6

    43 C.F.R. 46.205 ...............................................................................................................7, 33, 36

    43 C.F.R. 46.215 ...................................................................................................................36, 38

    43 C.F.R. 4710.1 .....................................................................................................................3, 26

    43 C.F.R. 4710.3-1 ........................................................................................................................3

    43 C.F.R. 4710.4 .....................................................................................................................3, 26

    43 C.F.R. 4720.2-1 ..................................................................................................................4, 26

    LEGISLATION

    H.R. Rep. No. 92-681, 92d Cong., 1st Sess. 6-7 (1971) ..........................................................29, 30

    H.R. Rep. No. 95-1122 (1978) .......................................................................................................30

    S. Rep. No. 92-242 (1971) ............................................................................................................30

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    because it was permitted, and required, to remove the horses from the

    checkerboard to protect private land rights. Nor did BLM violate NEPA, because

    it properly utilized an established categorical exclusion. And BLM did not violate

    FLPMA because it was required to comply with the Wild Horses Act independent

    of any duties under FLPMA.

    The Petition for Review should be dismissed, and judgment entered in favor

    of Federal Respondents.

    II. LEGAL BACKGROUND

    A. The Wild Free-Roaming Horses and Burros Act

    In 1971 Congress passed the Wild Horses Act, 16 U.S.C. 1331 et seq.,

    because wild horses were vanishing from the West and it sought to preserve these

    animals as living symbols of the historic and pioneer spirit of the West. 16

    U.S.C. 1331. To accomplish this task, it directed the Secretary to provide for

    their protection and management.Id.at 1333 In 1978, as a result of increasing

    horse numbers, Congress passed amendments to the Wild Horses Act that provided

    the Secretary with greater authority and discretion to manage and remove horses

    from rangeland.Id.

    There are two distinct obligations under the Wild Horses Act concerning the

    removal of wild horses. The first involves management on federalpubliclands:

    Section 3 of the Wild Horses Act directs the Secretary of the Interior to manage

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    wild free-roaming horses and burros in a manner that is designed to achieve and

    maintain a thriving natural ecological balance on the public lands. 16 U.S.C.

    1333(a). [BLM] (as the Secretarys delegate) carries out this function in localized

    herd management areas (HMAs) . . . Fund for Animals v. BLM, 460 F.3d 13,

    15 (D.C. Cir. 2006);see also16 U.S.C. 1332(c); 43 C.F.R. 4710.3-1. HMAs

    are generally established in broader land use plans. Fund for Animals, 460 F.3d at

    15; see also43 C.F.R. 4710.1. Responsibility for a particular [HMA] rests with

    [BLMs] local field and state offices. Fund for Animals, 460 F.3d at 15.

    In each HMA, BLM officials are afforded discretion to determine their own

    methods for computing appropriate management levels (AMLs) for the wild

    horse populations they manage.Id.at 16;see also16 U.S.C. 1333(b)(1). When

    wild horse populations exceed the carrying capacity of the range, or when wild

    horses stray outside of a designated HMA, BLM may remove them. See16 U.S.C.

    1332(f) (defining excess animals as wild free-roaming horses or burros (1)

    which have been removed from an area by the Secretary pursuant to applicable

    law, or (2) 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.);

    43 C.F.R. 4710.4 (management of wild horses shall be undertaken with the

    objective of limiting the animals distribution to herd areas.).

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    BLM also has distinct and independent duties with regard to wild horses on

    privatelands: Under Section 4 of the Act, if wild horses stray from public lands

    onto privately owned land, the owners of such land may inform the nearest Federal

    marshal or agent of the Secretary, who shall arrange to have the animals removed.

    16 U.S.C. 1334. BLM has interpreted this statutory provision by promulgation

    of a regulation, which provides: Upon written request from the private landowner

    to any representative of [BLM], the authorized officer shall remove stray wild

    horses and burros from private lands as soon as practicable. 43 C.F.R. 4720.2-1.

    There is nothing in the statute or regulations that require BLM to remove wild

    horses from private lands and return them to public lands.

    Congress has provided BLM with a significant amount of discretion as to

    how it manages and removes wild horses from public and private lands. See, e.g.,

    Am. Horse Prot. Assn v. Frizzell, 403 F. Supp. 1206, 1217 (D. Nev. 1975). In

    short, BLM, in its expert capacity as the federal agency in charge of managing wild

    horses, is entitled to deference in deciding when and how to remove horses from

    the range.Am. Horse Prot. Assn v.Watt, 694 F.2d 1310, 1318 (D.C. Cir. 1982).

    B. Checkerboard Land Authorities

    Checkerboard lands became prominent after the passage of the Pacific

    Railroad Act of 1862. Act of Jul. 1, 1862, ch. 120, 12 Stat. 489. Under the Act, the

    Union Pacific Railroad Company was granted alternating sections of land on either

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    side of the newly-constructed railroad.Id. at 492. This land grant resulted in a

    pattern of alternating public and private land sections, commonly called the

    checkerboard.

    A significant problem with the Checkerboard was that it allowed private

    landowners to build fences, entirely on their own private property, which blocked

    access to public lands. This problem was addressed by the Unlawful Inclosures Act

    of 1885. 43 U.S.C. 1061-65. Under this Act, such fences were declared

    unlawful.Id.at 1061; see also Camfield v. United States, 167 U.S. 518 (1897).

    The Tenth Circuit and the District of Wyoming, in particular, have been at

    the forefront of reconciling the difficult land management issues associated with

    balancing the rights of private landowners and the government within the

    checkerboard. InLeo Sheep Co. v. United States, 440 U.S. 668 (1979), the

    Supreme Court reversed the Tenth Circuit, finding that the government did not

    have the right to erect a road through private checkerboard land in order to create

    public access to the Seminoe Reservoir. Id.at 682, 687-688 (This Court has

    traditionally recognized the special need for certainty and predictability where land

    titles are concerned, and we are unwilling to upset settled expectations to

    accommodate some ill-defined power to construct public thoroughfares without

    compensation.). At the same time, the Tenth Circuit has consistently recognized

    that private landowners may not erect fences on private lands to exclude wildlife,

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    including wild horses, from accessing public lands. U.S. ex rel. Bergen v.

    Lawrence, 848 F.2d 1502, 1506 (10th Cir. 1988). Similarly, the Tenth Circuit has

    held that wild horses grazing on private land within the checkerboard is not an

    unconstitutional taking warranting compensation. Mountain States Legal Found.

    v. Hodel, 799 F.2d 1423, 1431 (10th Cir. 1986).

    C. NEPA

    NEPA was enacted to regulate government activity that significantly

    impacts the environment and to help public officials make decisions that are based

    on [an] understanding of environmental consequences, and take actions that

    protect, restore, and enhance the environment. Colo. Wild v. U.S. Forest Serv.,

    435 F.3d 1204, 1209 (10th Cir. 2006) (quoting 40 C.F.R. 1500.1(c)). The

    Council on Environmental Quality (CEQ) administers NEPA and promulgates

    regulations that are binding on federal agencies.Id. Under NEPA, federal agencies

    normally prepare an Environmental Impact Statement (EIS) for major Federal

    actions significantly affecting the quality of the human environment. 42 U.S.C.

    4332(C). To determine whether an action requires an EIS, the agency may prepare

    an environmental assessment (EA). 40 C.F.R. 1501.4(b). An EA is a concise

    public document that describes the proposal, studies alternatives, and considers

    environmental impacts to determine if an EIS is required. 40 C.F.R. 1508.9.

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    But in some situations, neither an EA nor an EIS is required. When an

    agency identifies types of actions that do not have a significant effect on the

    environment, the agency may classify those actions as categorical exclusions

    (CATEX) from the traditional NEPA process. Colo. Wild, 435 F.3d at 1209;40

    C.F.R. 1507.3(b)(2), 1508.4; see also 43 C.F.R. 46.205 (Department of the

    Interior CATEX regulation). Once an agency has established a CATEX, decisions

    as to which specific actions fall within it are reviewed deferentially, and set aside

    only if arbitrary and capricious. Citizens Comm. to Save Our Canyonsv. U.S.

    Forest Serv., 297 F.3d 1012, 1023 (10th Cir. 2002) (citations omitted). Under this

    standard, courts decide whether the agency examined relevant data and articulated

    a rational connection between the facts found and the decision made.High

    Country Citizens Alliance v. U.S. Forest Serv.,203 F.3d 835 (Table),No.97-1373,

    2000WL147381,at*4 (10th Cir. Feb.7, 2000)(unpublished) (quotingOlenhouse

    v.Commodity Credit Corp., 42 F.3d 1560,1574(10thCir.1994)).

    III. FACTUAL BACKGROUND

    A.

    Wyoming Checkerboard Lands and Wild Horses

    BLM is responsible for managing 16 HMAs in Wyoming, five of which are

    in BLMs Rock Springs Management Area in the southwestern part of the state.

    See Rock Springs Grazing Assn v. Salazar, 935 F. Supp. 2d 1179, 1181-83 (D.

    Wyo. 2013) (RSGA). The five HMAs within the Rock Springs Management

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    Area are Little Colorado, White Mountain, Divide Basin, Salt Wells Creek, and

    part of Adobe Town. Portions of the latter four contain checkerboard lands.1

    Within parts of these HMAs, RSGA owns and leases private checkerboard

    land sections for livestock grazing.Id.at 1182 n.2. RSGA also holds grazing

    permits for BLM-managed public lands in the checkerboard. Because it is not

    fenced, wild horses can move throughout this area (including the private land

    sections), as well as the solid-block public lands adjacent to the checkerboard.Id.

    at 1182.

    In 1975, RSGA requested BLM to remove wild horses from the

    checkerboard. BLM stated it was aware of the need to remove the horses, but

    lacked the funding to do so. Four years later, RSGA and Mountain States Legal

    Foundation filed suit against the Secretary of the Interior, among others, alleging

    that the Secretary failed to: (1) comply with 16 U.S.C. 1333 (Wild Horses Act

    Section 3); (2) remove horses from private lands at RSGAs request, under 16

    U.S.C. 1334 (Section 4); and (3) prevent damage to checkerboard lands.Id.at

    1183.

    1The Adobe Town and Salt Wells Creek HMAs are managed as a single complex due to wildhorse movements. See 2012 Scoping Statement Adobe Town and Salt Wells Creek HMAs at 1

    (AR 00453). A portion of the Adobe Town HMA falls within the territory of the Rawlins Field

    Office, thus the complex is jointly managed by both the Rock Springs and Rawlins Field Offices.See id. at 5 (AR 00457).

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    On March 13, 1981, Judge Kerrs initial order in the case directed that the

    Rock Springs District office of the [BLM] shall within one year from the date of

    this Order [this date was later extended] remove all wild horsesfrom the

    checkerboard grazing lands in the Rock Springs Districtexcept that number which

    the [RSGA] voluntarily agrees to leave in said area.Id. (emphasis added). BLM

    complied with the modified order in 1985 by removing all wild horses from the

    checkerboard except those horses that RSGA allowed to remain.Id.at 1183-84.

    B.

    RSGA v. Salazar

    On October 4, 2010, RSGA sent a letter to BLMs District Manager

    demanding the removal of all wild horses from lands it owned or leased under

    Section 4 of the Wild Horses Act.Id. RSGA then filed a petition in this Court on

    July 27, 2011, seeking to enforce the 1981 order against the Secretary and BLM.

    RSGA, ECF No. 1. Among other requests for relief, RSGA sought an order

    directing BLM to remove all wild horses from RSGAs lands within one year.Id.

    at 31.

    After some preliminary proceedings, the Court allowed many of the

    Petitioners in the present case to intervene.RSGA, ECF No. 32 at 8.2During the

    2The International Society for the Protection of Mustangs and Burros (ISPMB), the American

    Wild Horse Preservation Campaign (AWHPC), and the Cloud Foundation intervened.RSGA,ECF No. 32. In support of their motion to intervene, these organizations filed the declarations of

    Karen Sussman, Suzanne Roy, and Ginger Kathrens. RSGA,ECF No. 17. Three of the

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    course of briefing, BLM filed a declaration committing to a schedule for the

    removal of all wild horses from RSGAs checkerboard lands by September 2015,

    with follow-up gathers occurring until September 2018.RSGA, ECF No. 67 at 53

    9. BLM and RSGA were able to reach a proposed compromise where, among

    other commitments, BLM agreed to remove all wild horses located on RSGAs

    private lands, including Wyoming Checkerboard lands, with the exception of those

    horses found within the White Mountain [HMA]. Consent Decree at 4 (AR

    000467).

    On February 12, 2013, BLM and RSGA filed a joint motion to dismiss and

    the proposed Consent Decree.RSGA, ECF No. 81. On February 25, 2013,

    Intervenors filed their opposition to the proposed Consent Decree raising many of

    the same arguments they raise in this litigation.RSGA, ECF No. 86. Among other

    challenges, Intervenors argued that BLM could not lawfully commit to removing

    all wild horses from checkerboard lands because there was no practical means of

    differentiating between horses on private land and public land.RSGA, 935 F. Supp.

    2d at 1187. BLM did not dispute that it could not differentiate between horses on

    private and public lands within the checkerboard at specific points in time, but

    argued that this practical reality did not absolve BLM from complying with

    Petitioners in the present case (AWHPC, Cloud Foundation, Ginger Kathrens) are the same

    Intervenors that participated inRSGA.

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    Section 4 of the Wild Horses Act.RSGA, ECF No. 88 at 6-7 (Intervenors

    objections are all premised on the belief that BLM must ignore this statutory

    provision and treat all Checkerboard lands as if they were public lands.). Before

    entering the Consent Decree, the Court addressed this argument:

    While the Court fully appreciates the land management challengespresented by checkerboard ownership, those problems do not deprive

    RSGA of its rights as a private landowner under Section 4 of the WildHorses Act, nor the deference due the BLM as the agency with

    substantial expertise in the management of the HMAs. The BLM isstatutorily obligated to manage wild horses in this area consistent with

    RSGAs Section 4 legal rights notwithstanding the [resourcemanagement plan (RMP)] herd management objectives for federal

    land, or the particular management challenges presented.

    RSGA, 935 F. Supp. 2d at 1187-88 (footnote omitted). The Court also correctly

    recognized the value in the Consent Decree because it allows the BLM to

    maintain [205-300] wild horses on RSGAs private lands in the White Mountain

    HMA, even though RSGA could ask BLM to remove all wild horses.Id. at 1188.

    C.

    Implementation of the Consent Decree

    After the Court approved the Consent Decree, BLM conducted a gather in

    2013. BLM gathered 668 wild horses from the Adobe Town and Salt Wells

    HMAs, but removed only 586 of them. May 12, 2014 Letter to RSGA from BLM

    (May 12 Letter) (AR 003344). BLM returned the remaining horses to the HMAs

    to keep the population at the low end of the AML.Id. RSGA promptly objected

    to BLMs 2013 gather, specifically to BLMs leaving horses within the

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    and Adobe Town HMAs, with the goal of removing all horses from the

    checkerboard. July 18, 2014 Dear Reader Letter (AR 003355);Decision Record

    of BLM, Rock Springs Field Office (hereinafter DR) at 1 (AR 003369). BLM

    acknowledged that, because the 2014 gather was intended to ensure compliance

    with the Consent Decree and Section 4 of the Wild Horses Act, the checkerboard

    removal would bring the HMA populations below the established AML. June 11,

    2014 Mem. to Assistant Dir. (June 11 Memo) at 2 (AR 003349).

    D.

    BLMs 2014 Gather

    BLM determined that, based on the April 2014 horse population census,

    there were approximately 800 horses on the checkerboard portions of the three

    HMAs that needed to be removed. BLM Rock Springs Field Office CATEX,

    WY-040-CX14-134 (CATEX) at 3 (AR 003358). Next, BLM determined that a

    categorical exclusion applied to the gather, thereby fulfilling its NEPA obligation.

    CATEX at 5 (AR 003360). In reaching this decision, BLM assembled a team of

    11 professionals including Wild Horse and Burro Specialists, a Wildlife Biologist,

    Rangeland Management Specialists, and Resource Managers to consider potential

    environmental impacts. CATEX at 10 (AR 003365). The team studied the

    proposed gather action and reviewed the public comments received during BLMs

    2013 public scoping initiative. DR at 1-5 (AR 003369-73). They then considered

    twelve established criteria, extraordinary circumstances, that could cause the

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    proposed action to potentially be disqualified from a CATEX. CATEX at 5-10

    (AR 3360-65) (identifying 12 extraordinary circumstances such as potential effects

    on health and safety, certain natural resources, and endangered species, among

    others). BLM determined that there are no extraordinary circumstances

    potentially having effects that may significantly affect the environment, and

    therefore concluded that a CATEX was appropriate for the gather.Id. at 9-10 (AR

    003364-65); DR at 1 (AR 003369).

    On July 18, 2014, BLM issued its decision to proceed with the gather. DR

    (AR 003369-003380). This decision record committed to the removal of all wild

    horses from the checkerboard lands within the Great Divide Basin, Salt Wells

    Creek, and Adobe Town HMAs as required by the Wild Horses Act and the

    Consent Decree. DR at 1 (AR 003369); CATEX at 3 (AR 003358).

    As a result of weather and litigation delays (described below), there were

    more horses present in, and thus removed from, the checkerboard lands than

    anticipated based on the April 2014 census. Lovell Decl. 3-7, ECF No. 58-1.3

    Consistent with the Decision Record, BLMs contractor removed approximately

    3The facts in this paragraph are relevant to the issue of mootness, discussed below. Mootness isa threshold jurisdictional issue because the existence of a live case or controversy is a

    constitutional prerequisite to federal court subject matter jurisdiction. McClendon v. City of

    Albuquerque, 100 F.3d 863, 867 (10th Cir. 1996) (citation omitted). Therefore, documents

    outside of the administrative record may be used in determining mootness.Idaho Rivers United

    v. U.S. Forest Serv., No. 1:11-CV-95-BLW, 2013 WL 474851, at *5, n.1 (D. Idaho Feb. 7, 2013)

    (citing S. Utah Wilderness Alliance v. Smith,110 F.3d 724, 729 (10th Cir. 1997)).

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    1,263 wild horses from checkerboard lands within the three HMAs.Id. at 5.

    Approximately 649 wild horses were left on the adjacent solid-block public lands

    within these three HMAs.Id. at 7.

    E. Procedural History

    Petitioners filed a Motion for Temporary Restraining Order and/or

    Preliminary Injunction on August 8, 2014. ECF No. 17. This Court denied the

    Motion based on Petitioners fail[ure] to show they have a probability of success

    in their argument that extraordinary circumstances warrant further NEPA

    analysis. ECF No. 35. Based upon Petitioners subsequent Emergency Motion for

    Injunction Pending Appeal filed on August 28, 2014 (ECF No. 36), the Magistrate

    Judge initially enjoined BLM from conducting a gather through September 12,

    2014 (ECF No. 41), which was beyond the initially planned gather date (Lovell

    Decl. 2, ECF No. 58-1). The Court granted Federal Respondents Emergency

    Motion to Reconsider and Vacate the Magistrates Order Granting Injunctive

    Relief. ECF No. 51. Petitioners subsequently filed an Emergency Motion Pending

    Appeal in the Tenth Circuit, which was denied on September 10, 2014. ECF No.

    53. By stipulation of the parties, the Tenth Circuit dismissed Petitioners appeal on

    September 22, 2014. ECF No. 56.

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    IV. STANDARD OF REVIEW

    Because the Wild Horses Act, NEPA, and FLPMA do not provide a private

    right of action, parties challenging agency action under those statutes must invoke

    the judicial review provisions of the Administrative Procedure Act (APA), 5

    U.S.C. 701-706. Seee.g., Utah v. Babbitt, 137 F.3d 1193, 1203 (10th Cir.

    1998). In the Tenth Circuit, district court reviews of agency action under the APA

    are processed as appeals. Olenhouse, 42 F.3d at 1580.

    The scope of review under the [APA] is narrow and a court is not to

    substitute its judgment for that of the agency.Motor Vehicle Mfrs. Assn v. State

    Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). The court may set aside [the

    agencys action] if found to be arbitrary, capricious, an abuse of discretion, or

    otherwise not in accordance with law.Id. at 41 (quoting 5 U.S.C. 706(2)(A)).

    Under the arbitrary and capricious standard, administrative action is upheld if the

    agency has considered the relevant factors and articulated a rational connection

    between the facts found and the choice made.Balt. Gas & Elec. Co. v. Natural

    Res. Def. Council, 462 U.S. 87, 105 (1983) (citation omitted). The courts role is

    solely to determine whether the decision was based on a consideration of the

    relevant factors and whether there has been a clear error of judgment. Citizens to

    Pres. Overton Park v. Volpe, 401 U.S. 402, 416 (1971).

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    A presumption of validity attaches to the agency action and the burden of

    proof rests with the [parties] who challenge such action.Morris v. U.S. Nuclear

    Regulatory Commn, 598 F.3d 677, 691 (10th Cir. 2010) (alteration in original)

    (quotation omitted). In deciding disputes that involve primarily issues of fact that

    require[] a high level of technical expertise, [the court] must defer to the

    informed discretion of the responsible federal agencies.Marsh v. Or. Natural

    Res. Council, 490 U.S. 360, 377 (1989) (quoting Kleppe v. Sierra Club, 427 U.S.

    390, 412 (1976)); see also Balt. Gas, 462 U.S. at 103 (When examining this kind

    of scientific determination . . . a reviewing court must generally be at its most

    deferential.). Thus, when dealing with the complex technical issues relating to

    application of the Wild Horses Act, NEPA, and FLPMA a federal agency such as

    BLM must have discretion to rely on the reasonable opinions of its own qualified

    experts . . . .Marsh, 490 U.S. at 378.

    V. ARGUMENT

    A. Petitioners Claims are Moot

    The Petition for Review in this case challenged the 2014 gather. ECF No. 1,

    1 (contesting the removal of horses from Adobe Town, Salt Wells Creek, and

    Great Divide Basin [HMAs] in Wyoming.). On October 9, 2014, the gather in

    Adobe Town, Salt Wells Creek, and Great Divide Basin was complete. Lovell

    Decl. 5, ECF No. 58-1. No similar gathers are planned in these HMAs in the

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    imminent future, and it is unlikely a gather will take place in the White Mountain

    HMA in 2015. Foster Decl. 4, Ex. 1. Thus, this case is moot, none of the

    mootness exceptions apply, and the Court lacks subject matter jurisdiction.

    Petitioners neglect to address mootness and argue that they have standing.

    Petrs Br. at 23. This tact is telling. Petitioners quite clearly brought suit to enjoin

    the Adobe Town, Salt Wells, and Great Divide basin gather before it occurred. Pet.

    Review 1. Federal Respondents did not challenge standing and Petitioners were

    afforded every opportunity to convince this Court and the Tenth Circuit that BLM

    should be enjoined prior to the gather. But Petitioners were unsuccessful. The

    gather commenced and now that it has been completed, the facts in this case have

    fundamentally changed from the point in time when the Petition for Review was

    filed. Therefore, mootness, not standing, is the correct jurisdictional inquiry.

    Jackson v. Cal. Dep't of Mental Health, 399 F.3d 1069, 1072-73 (9th Cir.)

    amended on other grounds, 417 F.3d 1029 (9th Cir. 2005) (explaining the

    distinction between standing and mootness).

    Under the mootness doctrine, federal courts lack jurisdiction to give

    opinions upon moot questions or abstract propositions, or to declare principles or

    rules of law which cannot affect the matter in issue in the case before it. Church

    of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992). A case generally

    becomes moot when the issues presented are no longer live or the parties lack a

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    legally cognizable interest in the outcome.Murphy v. Hunt, 455 U.S. 478, 481

    (1982) (internal quotation omitted). This requirement for a live controversy

    persists throughout all stages of the litigation.Arizonans for Official English v.

    Arizona, 520 U.S. 43, 67 (1997) ([A]n actual controversy must be extant at all

    stages of review . . . (citation omitted));McAlpine v. Thompson, 187 F.3d 1213,

    1216 (10th Cir. 1999) (same). Mootness is a threshold issue because the

    existence of a live case or controversy is a constitutional prerequisite to federal

    court jurisdiction.McClendon v. City of Albuquerque, 100 F.3d 863, 867 (10th

    Cir. 1996) (citation omitted). A court has no subject-matter jurisdiction if a case

    is moot.Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096,

    1109 (10th Cir. 2010) (citation omitted) (Silvery Minnow).

    The source of Petitioners alleged injury was the 2014 gather and because it

    is complete there is no longer a live controversy within the meaning of Article III.

    Nevertheless, Petitioners try to manufacture a live controversy by arguing that

    there are various remedial measures that the Court could order to redress

    Petitioners injuries . . . . Petrs Br. at 23. This misses the relevant inquiry. The

    proposed remedial measures all consist of a hypothetical order instructing BLM to

    return the wild horses back to the range from which they were removed.Id. (citing

    Petrs Ex. A 11, Ex. B 14, Ex. C 9) (most of the horses removed from these

    HMAs are currently in short-term holding facilities and could be returned to the

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    range . . . [this] would help assuage the extreme personal and professional harm

    that BLMs decision has caused me.). But the mere availability of an equitable

    remedy is not the test for subject matter jurisdiction in this Circuit, especially with

    the factual circumstances presented here.

    In Silvery Minnowthe plaintiffs presented a similar argument and tried to

    avoid the conclusion that their case was moot by arguing that the court was

    situated to provide some relief, especially declaratory relief regarding the scope of

    [the agencys] discretion . . . 601 F.3d at 1112. The Tenth Circuit rejected this

    lesser standard and explained that a plaintiff cannot maintain a declaratory or

    injunctive action unless he or she can demonstrate a good chance of being likewise

    injured [by the defendant] in the future.Id. (quoting Cox v. Phelps Dodge Corp.,

    43 F.3d 1345, 1348 (10th Cir. 1994) (alteration in original) (internal quotation

    marks omitted)). The possibility of an equitable remedy was not dispositive,

    instead the Circuit took a hard look at whether it was truly necessary to issue a

    disfavored advisory opinion.Id. at 1111, n.12; see also Chihuahuan Grasslands

    Alliance v. Kempthorne, 545 F.3d 884, 891-92 (10th Cir. 2008) ([W]ith respect to

    declaratory relief, we look beyond the initial controversy, which may have existed

    at one time and decide whether the facts alleged show that there is a substantial

    controversy of sufficient immediacy and reality to warrant the issuance of a

    declaratory judgment.) (internal quotation marks and citation omitted).

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    Petitioners have made no showing that they are likely to be injured in the future

    and oblique references to possible remedial measures in the context of standing is

    not enough. There is no longer a live controversy for this Court.

    Petitioners fail equally on the facts. The declarants statement, that most of

    the horses are being held in short term holding facilities and the Court can simply

    order BLM to return them to checkerboard, is inaccurate. The removed horses are

    located in multiple facilities throughout Colorado, Utah, and Wyoming, and have

    been entered into the national program where they have been readied for adoption.

    Foster Decl. 6. More importantly, introducing horses that have been held in

    captivity back into the wild poses a number of significant considerations, including

    the possible introduction of disease to the wild horse population.Id.at 6-8. It

    would be very difficult and potentially unsafe to return these horses to the range.

    Id.

    In addition, such an order would run directly counter to 16 U.S.C. 1334

    and the 2013 Consent Decree. Even if the horses could be released back on to

    solid-public lands within the HMAs, those horses will invariably migrate back to

    RSGAs lands within the checkerboard defeating the very purpose of BLMs

    Section 4 gather. This is not a situation where the hypothetical return of wild

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    horses only affects public lands and BLM, rather it directly affects private lands

    and RSGA an entity that lawfully asked for these horses to be removed.4

    Petitioners will likely argue that an exception to the doctrine of mootness

    capable of repetition yet evading review applies in this circumstance because

    similar gathers will be authorized in the future. This exception . . . is a narrow

    one and is only to be used in exceptional situations,Jordan v. Sosa, 654 F.3d

    1012, 1034-35 (10th Cir. 2011) (citations omitted), such as where two elements

    combine[]: (1) the challenged action was in its duration too short to be fully

    litigated prior to its cessation or expiration, and (2) there [is] a reasonable

    expectation that the same complaining party [will] be subjected to the same action

    again.Id.(quotingWeinstein v. Bradford,423 U.S. 147, 149 (1975) (per curiam)).

    Petitioners bear the burden of establishing both elements of the test.Id. (citation

    omitted).

    4Petitioners will likely argue that a California district court found a post-gather challenge was

    not moot because it could order BLM to return horses to public lands.In Def. of Animals v. U.S.Dept. of Interior, 808 F. Supp. 2d 1254, 1266 (E.D. Cal. 2011). Putting aside the legal

    differences in the Ninth Circuit where the mootness doctrine is construed much more

    expansively than in the Tenth Circuit, this case is factually distinguishable because: (1) thegather took place on public lands under 16 U.S.C. 1333; and (2) there were other aspects of the

    decision that had yet to be implemented and therefore the court could afford the parties

    meaningful relief with respect to the challenged decision. Even so, it is questionable whether thedistrict courts opinion is still good law. See In Defense of Animals v. U.S. Dept. of Interior, 648

    F.3d 1012, 1014 (9th Cir. 2011) (per curiam) (panel disagreeing with the dissents position that

    effective relief can be granted in this case by returning the removed horses to their natural

    habitat.)

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    Here, Petitioners cannot meet their burden. Under the 2013 Consent Decree,

    BLM will make a determination as to whether a gather in the White Mountain

    HMA is required in 2015. Based on 2014 census data, the projected number of

    wild horses is well under the allowable threshold of 300. Foster Decl. 9-10

    (projecting current White Mountain wild horses at 182 for 2015). Although BLM

    plans to conduct a new census in late February and base its decision on that data, if

    the number of wild horses does not rise above the decrees threshold of 300 wild

    horses, there will be no gather within any of the contested HMAs in 2015.Id.

    Based on BLMs experience, it is likely that no gather will be authorized for White

    Mountain HMA in 2015. Foster Decl. 10.

    Authorization of gathers in other HMAs is even more speculative. Under

    the Consent Decree, the parties contemplated a possible gather in 2016, but only

    if necessary to achieve the numbers identified. . . in the Consent Decree. See

    Consent Decree 5 (AR 000469). With this criterion, there are no gathers

    currently planned or proposed for the Adobe Town, Salt Wells Creek or Divide

    Basin HMAs. See Consent Decree 4, 5 (If BLM determines, based on the

    results of any census and on projected reproduction rates, that the population in the

    Checkerboard lands is likely to exceed 200 wild horses for Salt Wells/Adobe Town

    Areas combined or 100 wild horses for Divide Basin.); Foster Decl. 11 (no

    additional gathers are planned for the Great Divide Basin, Salt Wells Creek or

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    Adobe Town HMAs.). While it is possible a gather may be necessary in these

    HMAs, it is far from imminent.

    Even if a gather is authorized in 2015 for White Mountain or the other

    HMAs in 2016, any future decision by BLM will be driven by a number of factors

    and circumstances unique to that particular gather and may be very different from

    the challenged decisions here. For example, a White Mountain gather would not

    attempt to remove all of the wild horses from the checkerboard, but rather would

    leave some wild horses in the checkerboard consistent with the terms of the

    Consent Decree. Consent Decree 1, 5 (AR 000467-69) ([T]he White Mountain

    HMA will be maintained at 205-300 wild horses . . . BLM agrees to gather and

    remove down to the low end of AML (205) . . . .); Foster Decl. 10. Because of

    this difference, it is likely that BLM would employ different legal mechanisms

    under the Wild Horses Act and NEPA to achieve this range. Similarly, the trigger

    points for a 2016 gather in any of the three HMAs requires a substantial number of

    horses to be located or projected in the actual checkerboard, an area where the wild

    horse population was recently gathered to very few horses. See Foster Decl. 11

    (After initial removal of all wild horses from the checkerboard within these

    HMAs, the 2013 Consent Decree allows for wild horses to remain on [private]

    RSGA lands, up to certain limits, that would not otherwise occur.); Consent

    Decree 4, 5. In short, even if a gather is authorized at some point in the future,

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    the legal parameters of those decisions may look very different than BLMs 2014

    decision notice and CATEX.

    Petitioners cannot meet their burden of demonstrating that the present

    challenge is capable of repetition yet evading review. Possiblefuture agency

    actions with no specificity do not warrant application of the exception. Cent. Wyo.

    Law Assocs. P.C. v. Denhardt, 60 F.3d. 684, 687 (10th Cir. 1995) (the mere

    theoretical possibility of recurrence is insufficient to satisfy capable of repetition

    test). At this point in time, there is insufficient specificity and immediacy to

    warrant this Court issuing an advisory opinion. Unified Sch. Dist. No. 259 v.

    Disability Rights Ctr. of Kan., 491 F.3d 1143, 1150 (10th Cir. 2007) (holding that

    mootness applies because future instances of wrongful conduct may be quite

    different than that alleged). If BLM authorizes a gather in the future, Petitioners

    have demonstrated the ability to challenge that new final agency action in both the

    district court and Tenth Circuit. Waiting until there is sufficient specificity as to

    the legal parameters of a possible future decision ensures that granting a present

    determination . . . will have some effect in the real world. Wyoming v. U.S. Dep't

    of Agric., 414 F.3d 1207, 1212 (10th Cir. 2005) (internal quotation marks and

    citation omitted). The present factual circumstances are too speculative to warrant

    invoking the exceptions to mootness. The Court should dismiss this case for lack

    of subject matter jurisdiction.

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    B. BLM Complied with the Wild Horses Act

    Petitioners contend that BLM did not comply with Section 3 of the Wild

    Horses Act when it approved the 2014 gather because it did not determine that the

    wild horses proposed for removal from the checkerboard are excess horses.

    Petrs Br. at 26. Petitioners also assert that BLMs decision to remove wild horses

    does not comply with Section 3 because doing so will leave the HMAs with less

    than their AMLs.Id. While it is true that Section 4 does not govern public lands, it

    is equally true that Section 3 does not govern private lands. Where wild horses

    move freely within the checkerboard on unfenced public and private land, BLM

    cannot abdicate its Section 4 obligations and must exercise its discretion to

    harmonize multiple competing mandates within this complicated land management

    area. Chevron U.S.A. v. NRDC, 467 U.S. 837, 844-45 (1984) (We have long

    recognized that considerable weight should be accorded to an executive

    departments construction of a statutory scheme it is entrusted to administer . . . .

    (footnote omitted).

    Under Section 3, BLM may remove horses from public lands if those horses

    are determined to be in excessthat is, over appropriate management levels. 16

    U.S.C. 1333; 43 C.F.R. 4710.4, 4720.1. But under Section 4, if BLM receives

    a request to remove wild horses from private lands, it shallarrange to have the

    animals removed. 16 U.S.C. 1334 (emphasis added). Although BLM can

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    exercise discretion as to how and when it removes these wild horses, the duty to

    ultimately remove these animals is non-discretionary.543 C.F.R. 4720.2-1 (BLM

    shall remove horses).

    Resolving these obligations in the checkerboard presents unique challenges.

    The government does not own the private lands it conveyed in the checkerboard.

    Leo Sheep Co. v. U.S., 440 U.S. 668, 682, 687-88 (1979). Nor did it reserve any

    implied property interest.Id. And under the Unlawful Inclosures Act, RSGA is

    prohibited from meaningfully fencing its lands. Camfield, 167 U.S. at 525-28.

    RSGA is also prohibited from destroying or removing the wild horses there. 16

    U.S.C. 1334, 1338. At the same time, RSGA cannot be compensated for any

    damage that occurs from wild horses grazing on its land.Mountain States Legal

    Found. v. Hodel, 799 F.2d 1423, 1431 (10th Cir. 1986). Recognizing the potential

    damage that wild horses can cause, Congress struck a balance between protection

    of wild horses and the interests of private landowners. While the Act generally

    5Petitioners contend that BLM took inconsistent positions inRSGA v. Salazarand argued thatSection 4 does not authorize BLM to remove all wild horses from Checkerboard lands. Petrs

    Br. at 34. Petitioners do not accurately represent BLMs previous arguments. InRSGAthe

    Petitioners andAmicusrequested that this Court should order BLM to remove all wild horseswithin one year and direct their removal to permanent holding facilities. BLM responded thatalthough Section 4 creates a non-discretionary duty to ultimately remove the horses, BLM retains

    significant discretion as to when and howit conducts the removal. SeeRSGA, ECF No. 67 at 41.

    BLM objected to the imposition of a one year deadline and direction to remove to permanentholding facilities because any order directing when or how a removal should occur would

    interfere with BLMs discretion under the Wild Horses Act. That was the argument made inRSGA v. Salazar.

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    protects horses (16 U.S.C. 1334, 1338), it also, in Section 4, requires BLM to

    remove horses from private lands when requested to do so.6 This is the mechanism

    that harmonizes the competing obligations in the checkerboard.

    BLM has foundand Petitioners have admittedthat there is no practical

    way to segregate wild horses that reside on private lands from those that reside on

    public lands in the checkerboard at any one point in time. RSGA, ECF No. 86-1 at

    7-8; DR at 3-4 (AR 003371-72). There is thus no way for BLM to comply with

    Section 4 without also removing horses from public lands in the checkerboard,

    even though those horses may not be excess animals under the Act. 16 U.S.C.

    1333. On the other hand, if BLM removes only excess horses that would leave

    non-excess horses on (or soon to be on) RSGAs lands, contrary to Section 4 and

    BLMs commitment in the Consent Decree. 16 U.S.C. 1334. Clearly, Congress

    did not speak to the precise issue of how the Wild Horses Act should be

    implemented in the checkerboard. FDA v. Brown & Williamson Tobacco Corp.,

    529 U.S. 120, 132 (2000) ([t]he meaningor ambiguityof certain words or

    6Petitioners repeatedly claim that BLM has never applied the Wild Horses Act in this manner

    before. Petrs Br. at 1 (this case raises a critically important question of first impression . . . .);id.at 24 (first time in agency history . . . .). This is hyperbole. As discussed extensively in theRSGA v. Salazarlitigation, Judge Kerr encountered this very same dispute, and unequivocally

    found that BLM must comply with Section 4 on checkerboard lands by removing all of thehorses unless otherwise agreed upon by RSGA. Supra at 9 (the Rock Springs District office of

    the [BLM] shall within one year from the date of this Order remove all wild horses from the

    checkerboard grazing lands in the Rock Springs District except that number which the [RSGA]

    voluntarily agrees to leave in said area . . . .).

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    phrases may only become evident when placed in context . . . .). It is within this

    checkerboard context that there is ambiguity and tension between the statutory

    provisions. SeeRSGA v. Salazar, 935 F. Supp. 2d at 1187-88 (This Court noting

    that such tension does not deprive RSGA of its rights as a private landowner

    under Section 4 of the Wild Horses Act, nor the deference due the BLM as the

    agency with substantial expertise in the management of the HMAs. (quotation

    omitted)). Thus, it was incumbent on BLM to harmonize these conflicting

    mandates because, as the Tenth Circuit noted, the [f]act is, federal law doesnt

    always point harmoniously in a single directionand when it comes to land policy

    this is perhaps particularly true. The Wilderness Socy v. Kane County, Utah, 632

    F.3d 1162, 1178 (10th Cir. 2011).

    Though Petitioners correctly assert that Sections 3 and 4 apply to public and

    private lands respectively, they are wrong to assert that the plain language of

    Section 3 governs the gather here. The plain language of the Act simply does not

    speak to what the agency should do when public and private lands are so

    intertwined so that it is impossible to manage them separately. Congress delegated

    a high degree of discretionary authority to BLM in its management of wild

    horses. Watt, 694 F.2d at 1316, n.29 (citing H.R. Rep. No. 92681, 92d Cong., 1st

    Sess. 67 (1971), U.S. Code Cong. & Admin. News at 2159 (1971)). And here,

    BLM reasonably exercised this discretion to resolve the ambiguity and tension

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    under the Wild Horses Act by interpreting Section 4 to authorize the 2014 gather in

    the checkerboard, even though some horses may temporarily be located on public

    lands. This interpretation harmonizes BLMs competing obligations under the Act,

    the case law, and the Consent Decree. It has long been recognized that many of

    the responsibilities conferred on federal agencies involve a broad grant of authority

    to reconcile conflicting policies. City of New York v. FCC, 486 U.S. 57, 64

    (1988); United States v. Shimer, 367 U.S. 374, 38283 (1961). Courts will

    therefore not disturb an agencys choice if it represents a reasonable

    accommodation of conflicting policies that were committed to the agencys care by

    the statute . . . . City of New York, 486 U.S. at 64; see also Natl Assn of Home

    Builders v. Defenders of Wildlife, 551 U.S. 644, 666 (2007) (deferring to an

    agencys reasonable resolution of two competing statutory mandates).

    Petitioners nevertheless insist that interpreting the Wild Horses Act in such a

    way creates an exception to Section 3 that Congress did not intend. Petrs Br. at

    31 (Section 3 of the WHA is crystal clear . . .). Nothing in the statute or the

    legislative history indicates that Congress intended Section 3 to trump Section 4 in

    this unique situation. Congress never intended to create the single-use

    management of areas for the benefit of the wild free roaming horses. H.R. Rep.

    No. 92681, at 5 (1971); S. Rep. No. 92242, at 3 (1971). And it was certainly

    attentive to private land interests by limiting BLMs discretion in Section 4.

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    Indeed, Congress was concerned about too many horses, as well as excessive

    management costs, when it amended the Act to provide BLM with more discretion

    to manage and remove horses. H.R. Rep. No. 951122, at 23 (1978); Pub. L. No.

    95514, 2(a)(6), 92 Stat. 1803 (1978), 43 U.S.C. 1901(a)(6).

    Petitioners insist that BLM cannot go forward with the gather because some

    of the horses may be removed from public lands in the checkerboard. Petrs Br. at

    29. This insistence effectively asks this Court to ignore Section 4 and substitute its

    interpretation of the statute in place of the answer reached by BLM. While

    Petitioners would have obviously reached a different result, this Court should

    respect BLMs considered judgment and reasonable resolution of the statutory

    language, legislative history, and competing obligations. Chevron, 467 U.S. at 843;

    Regions Hosp. v. Shalala, 522 U.S. 448, 457 (1998);Home Builders, 551 U.S. at

    666 (An agency cannot simultaneously obey the differing mandates . . . and

    consequently the statutory language . . . does not itself provide clear guidance as to

    which command must give way. In this situation, it is appropriate to look to the

    implementing agency's expert interpretation . . . .).

    Petitioners also suggest that the gather is designed to preemptively prevent

    horses from straying onto private lands and resolves a hypothetical problem that

    BLM is not required to address. Petrs Br. at 28. Petitioners mischaracterize the

    gatherwhich is not a preemptive solution to a hypothetical problem, but a

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    carefully considered response to a decades-old management challenge presented by

    the unique pattern of checkerboard land ownership, the statutory prohibition on

    fencing these lands, RSGAs unequivocal demand to remove wild horses from its

    lands, and the fact that horses repeatedly roam on and off private lands there.

    Finally, Petitioners argue that BLM has not provided any explanation or

    interpretation of the ambiguity and tension in the statutory scheme as applied in the

    checkerboard context. Petrs Br. at 32. This too is incorrect. The agency

    explained:

    The BLM acknowledges that in discharging its duties under Section 4

    of the WHA wild horses will be also removed the public land portions

    of the checkerboard. However, due to the unique pattern of landownership, and as recognized in the Consent Decree, it is practicably

    infeasible for the BLM to meet its obligations under Section 4 of theWHA while removing wild horses solely from the private lands

    sections of the checkerboard.

    AR 003371-72. BLM expounded by explaining why it had shifted from an EA:

    Through this gather, the BLM is not removing excess wild horsesfrom the public lands under Section 3 of the WHA, 16 U.S.C. 1333.

    While in its 2013 scoping notice, the BLM contemplated a gather andremoval under both Section 3 and Section 4 of the WHA, in response

    to the scoping comments it received, the BLM now clarifies that it

    will remove wild horses from the checkerboard as required by Section4 of the WHA and the Consent Decree.

    AR 003359. BLM also explained that the 2014 gather did not alter the existing

    AMLs in the respective HMAs, and that it was cognizant that it would need to alter

    those levels through a plan amendment process consistent with FLPMA. AR

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    003345 (Thus, BLM views any changes to AMLs or HMA boundaries as being

    outside the scope of the purpose and need for the project level gather analyses.).7

    The administrative record is replete with BLMs explanation and interpretation of

    the Wild Horses Act, and its rationale can be reasonably discerned. AR 3354; AR

    3341; see alsoUnited Keetoowah Band of Cherokee Indians of Okla. v. U.S. Dept

    of Housing and Urban Dev., 567 F.3d 1235, 1239 (10th Cir. 2009).

    BLM seeks to discharge its Section 4 duty and comply with the RSGA

    Consent Decree in a way that resolves conflicting obligations over a landscape

    presenting unique and difficult management issues. Indeed, there are very few

    HMAs in the country where such extensive private checkerboard lands are

    interspersed with solid-block public lands within an HMA boundary. BLMs

    interpretation of its obligations is reasonable and this Court should not disturb it

    7Petitioners argue that BLM presented inconsistent positions to the Court with respect to

    affording the public an opportunity to comment on management changes within the HMAs.Petrs Br. at 12-13. As they did in the previous litigation, Petitioners mischaracterize the 2013

    Consent Decree and BLMs position. RSGA, ECF No.89 at 7. The 2013 Consent Decree had

    two basic but independent components: (1) an obligation to remove wild horses from

    checkerboard lands under Section 4; and (2) a commitment to scope management changes in theHMAs. AR 00467. Petitioners conflate these two obligations by arguing that BLM committed to

    certain NEPA and FLPMA processes before performing its Section 4 obligations. Petrs Br. at

    12-13. This is inaccurate and reflects Petitioners previously rejected contention that BLMcannot conduct a lawful Section 4 gather on the checkerboard because it implicates public lands.

    To the extent BLM changes how it managespublic lands within the HMAs, including AMLs, it

    will undergo the appropriate NEPA and FLPMA processes. This is best evidenced by thescoping processes that began on the RMPs. AR 00381. But BLM does not need to complete this

    lengthy plan amendment process before a Section 4 gather because the legal obligation is

    independent from its management obligations under FLPMA. It is this distinction that

    Petitioners fail to acknowledge.

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    apply merely because the gather may have had environmental impacts. Petrs Br.

    40-45. Neither claim has merit.

    First, BLM reasonably determined that the CATEX was well-suited for this

    gather, and the Tenth Circuit has made clear that this decision will be set aside

    only if the agency acted arbitrarily and capriciously. See e.g. Citizens Comm., 297

    F.3d at 1023. BLM readily acknowledges that the CATEX used for this gather,

    516 DM 11.9 D(4) (AR 003389), refers to the removal of horses from private

    lands. See CATEX at 5 (AR 003360). But given the unique challenges presented

    by checkerboard land management, BLMs decision to utilize the private-land

    CATEX was reasonable. As this Court and the Tenth Circuit have recognized,

    there are considerable difficulties imposed upon land management by

    checkerboard land patterns.8 Earlier in this case, this Court noted that such land

    management challenges do not deprive RSGA of its rights as a private landowner

    under Section 4 of the Wild Horses Act, nor the deference due the BLM as the

    agency with substantial expertise in the management of the HMAs.RSGA v.

    Salazar, 935 F. Supp. 2d at 1187-88 (footnote omitted). Indeed, BLMs Decision

    Record found that:

    8See Order Denying Petrs Motion for a TRO and/or Prelim. Inj., ECF No. 35 at 12 (Both this

    Court and the Tenth Circuit recognized that BLM is forced to manage the alternating land pattern

    of the checkerboard as a single unit.); see alsoMountain States, 799 F.2d at 1434-35 (Noting

    that BLM manages checkerboard as if a single unit.)

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    due to the unique pattern of land ownership, and as recognized by theConsent Decree, it is practicably infeasible for BLM to meet its

    obligations under Section 4 of the [Wild Horses Act] while removingwild horses solely from the private lands sections of the checkerboard.

    DR at 3-4 (AR 003371-72); see also CATEX at 4 (AR 003360). Therefore, [t]he

    only practical way this mandate [under Section 4] can be honored in an unfenced

    checkerboard area is by removal of all the horses.Am. Horse Prot. Assn v.

    Andrus, 460 F. Supp. 880, 885 (D. Nev. 1978), revd in part on other grounds, 608

    F.2d 811 (9th Cir. 1979). This is not an unreasonable conclusion.

    BLM removed the horses from private land, as required, and reasonably did

    so by gathering all the horses in the checkerboard. Such a gather is conducted

    under Section 4 of the Wild Horses Act, pertaining to private land gathers, and

    therefore the CATEX employed was appropriate. Petitioners cannot credibly

    assert that BLM failed in its duty to articulate[] a rational connection between the

    facts found and the decision made in applying the CATEX here. See High

    Country Citizens Alliance v. U.S. Forest Serv.,203 F.3d 835, at *4 (10th Cir.

    2000) (quoting Olenhouse, 42 F.3d at 1574); Wild Earth Guardians v. U.S. Forest

    Serv., 668 F. Supp. 2d 1314, 1333 (D.N.M. 2009) (courts analyze whether a

    CATEX was supported by reasonable facts and conclusions).

    Next, when considering a proposed action under a CATEX, an agency is

    required to determine whether there are extraordinary circumstances that would

    cause the action to have a significant environmental effect. 43 C.F.R. 46.205(c)

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    (CEQ regulation); 40 C.F.R. 1508.4 (BLM regulation requiring analysis of

    specific extraordinary circumstances). BLM adequately did so here by considering

    whether any of the twelve extraordinary circumstances identified in the agencys

    NEPA implementation procedures (43 C.F.R. 46.215) would occur as a result of

    the gather. BLM considered, among other things, whether the gather would result

    in significant impacts on natural and cultural resources, drinking water aquifers, or

    other ecologically significant or critical areas. CATEX at 5-10 (AR 003360-65).

    In making this determination, BLM relied on a team of 11 specialists and resource

    managers including a Wild Horse and Burro Specialist, a Rangeland Management

    Specialist, a Wildlife Biologist, a Riparian Specialist, and various field managers.

    Id. at 10 (AR 003365). BLMs professionals concluded, inter alia, that:

    There are no unique or unknown risks associated with this removal of

    wild horses from the checkerboard land. The checkerboard land is

    within HMAs and has been managed for wild horses, including gatheroperations for decades. The effects of gather operations on wild horses

    are well understood and this removal is not expected to create highlyuncertain environmental effects.

    * * *

    No significant impacts to any resources are expected from this removal,including to any unique geographic characteristics. No such unique

    geographic characteristics or ecologically significant or critical areasare located within the checkerboard.

    Id. at 6-10. Given these findings, BLMs Field Managers concluded in their

    Decision Record that a CATEX was appropriate here because there are no

    extraordinary circumstances potentially having effects that may significantly affect

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    the environment. DR at 1 (AR 003369). This determination is entitled to

    deference. See Citizens Comm., 297 F.3d at 1023; see also Citizens Comm. to

    Save Our Canyons v. Krueger, 513 F.3d 1169, 1176 (10th Cir. 2008) (a

    presumption of validity attaches to agency action . . . (quotation omitted)).

    Despite BLMs clear analysis of potential extraordinary circumstances,

    Petitioners claim that BLMs review was improper and thus BLM jettisoned its

    duty under NEPA by failing to prepare an EA or EIS. Petrs Br. at 40. But

    Petitioners offer no meaningful or cognizable legal or factual support for this

    contention. Petitioners first argue that a CATEX must be improper because BLM

    has previously recognized that removing all wild horses from the checkerboard

    lands will have some impacts . . .Petrs Br. at 44 (quoting AR 3341) (citation

    omitted). But to contend that, in determining no extraordinary circumstances exist,

    BLM acted arbitrarily and capriciously merely because BLM also stated there

    would be some impacts clearly misstates the CATEX standard of extraordinary

    circumstances. That standard simply requires BLM to analyze the regulations

    specifically delineated effects. See 43 C.F.R. 46.215 (Regulation listing specific

    circumstances for BLM to consider); Utah Envtl. Cong. v. Bosworth, 443 F.3d 732,

    741-42 (10th Cir. 2006) (stating that, to determine whether extraordinary

    circumstance exist, the agency should reference its listed regulatory factors). And

    an extraordinary circumstance is found only when there exists a potential for a

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    significanteffect on a resource condition.Id. at 743. BLM satisfied the

    applicable standard here.

    Next, Petitioners claim that a roundup of this magnitude inevitably affects

    myriad natural resources . . . . Petrs Br. at 42. But Petitioners point to nowhere

    in the administrative record9to provide factual backing for this claim. They do

    cite to a portion of the record (AR 00656-58) which list[s] various potential

    impacts of roundups. But merely listingpotential impacts from gathers does not

    indicate that such impacts would inevitably be realized in this gather, nor, more

    importantly, to what extent. Petitioners ignore that BLM in fact considered the

    potential impacts to natural resources in its review of the potential extraordinary

    circumstances. That is all that NEPA requires. See Utah Envtl. Cong. v. Russell,

    518 F.3d 817, 821 (10th Cir. 2008) (NEPA dictates the process by which federal

    agencies must examine environmental impacts, but does not impose substantive

    limits on agency conduct. (citation omitted)).

    Petitioners also argue that the gather would somehow be disruptive to a

    particular band of horses, and that genetic diversity would be harmed by BLMs

    managing of wild horses below AML. Petrs Br. 42-43. But Petitioners provide

    no evidence for their band theory, nor do they argue that these were issues brought

    9Which includes public comments from four of the six Petitioners submitted during the EA

    scoping process for the proposed 2014 gather. See AR001256-001269,001274-001298.

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    before the agency via the public comment period during the EA scoping phase.

    And BLM is not managing horses below AML. As clearly stated by BLM,

    [t]his removal is not focused on the management of the Great Divide Basin herd;

    but rather [is] a compliance action for the Consent Decree. June 11 Memo at 2

    (AR 003349). As far as managingthe HMAs at issue, BLM is currently in the

    process of revising or amending the RMPs covering the HMAs, to include analysis

    of current HMA circumstances and populations and consider various management

    alternatives. SeeCATEX at 5 (AR 003360). But again, BLMs only duty was to

    determine if any of the defined extraordinary circumstances applied to this gather.

    And again, BLM fulfilled that duty.

    Petitioners have presented no basis for finding that BLM failed to adequately

    conduct its NEPA review or that an EIS or EA would be required for this action.

    Accordingly, Petitioners cannot meet their burden of proof.

    ii. Public Involvement is not Required in CATEX Decisions

    Petitioners allege that BLM violated NEPA via a complete failure to

    involve . . . the public in its decision . . . Petrs Br. at 45 n.14 (first omission in

    original) (quotation omitted). But as the Tenth Circuit has confirmed, there is no

    public comment requirement when an agency invokes, or considers invoking, an

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    established CATEX.10 Colo. Wild, 435 F.3d at 1219 (CEQ regulations do not . . .

    require public involvement in an agency's decision to employ a [CATEX] once that

    [CATEX] has been approved.). And because BLM ultimately decided to utilize a

    CATEX, there is no public involvement requirement tied to BLMs initial scoping

    process for a potential 2014-gather EA. Utah Envtl. Cong., 443 F.3d at 740, n.5

    (holding that utilization of a CATEX obviated the requirement for public comment

    on a draft EA prepared prior to the agencys CATEX decision).

    iii.

    BLM did not Depart from its own Guidance or Past Practice

    Finally, Petitioners incorrectly assert that BLM Manual 4720.2.21 and .3

    required preparation of an EA for the gather, and that BLMs action in this case

    departs from that guidance. Petrs Br. 43-44. Not so. BLM Manual sections

    4720.2.21 and .3 are inapplicable here, as they relate to the removal of excess

    horses under Section 3of the Wild Horses Act.11 As detailed in the Decision

    10As a practical matter, BLM did ask for and accept comments well in advance of the gather. InDecember 2013, BLM issued a scoping notice for a potential EA for a Great Divide Basin

    checkerboard gather. Scoping Statement Great Divide Basin HMA at 3 (AR 00824). Four of

    the six Petitioners in this case commented. SeeAR 001256-001269, 001274-001298. WhileBLM ultimately decided to proceed in a different manner, the DR states that BLM duly

    considered the public comments received. SeeDR at 2, 4 (AR 003370, 003372).11The two applicable objectives of the manual are [t]o control population size within [AML] toassure wild horses . . . are managed in balance with other uses and the productive capacity of the

    habitat . . . and [t]o remove excess wild horses . . . to . . . maintain AML on all HMAs. BLM

    Manual 4720.02(B), (C). This language directly refers to Section 3 of the Wild Horses Act,which states: Where an overpopulation exists . . . and... action is necessary to remove excess

    animals, [BLM] shall immediately remove excess animals . . . to achieve [AML]. 16 U.S.C.

    1333(b).

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    Record and above, the gather in this case was undertaken pursuant to Section 4of

    the Act. Further, the Manual language quoted by Petitioners states only that an

    appropriate NEPA analysis is necessary. BLM Manual 4720.2.21(6). Because

    BLM has demonstrated that its use of the CATEX complied with NEPA, thus

    constituting appropriate NEPA analysis, Petitioners claim fails.12

    Petitioners also contend that BLMs longstanding practice has been to

    invariably prepare at least an EA for allpermanent wild horse roundups on public

    land. Petrs Br. 43-44. Again, BLM reasonably conducted this gather under

    Section 4 of the Wild Horses Act as a gather fromprivateland. Therefore,

    Petitioners citation to BLMs past practices ignores the unique facts of this

    gather.13 And BLM does rely on categorical exclusions for gathers when it is

    appropriate to do so, as it is here. See e.g.CATEX DOI-BLM-UT-COl0-2014-

    0037-CX, Private Land Horse Trapping, BLM Cedar City Field Office (AR

    003321-35). But even if Petitioners were correct in asserting that BLM typically

    prepares EAs for wild horse gathers of the kind at issue here, Petitioners would still

    be required to sustain their burden of showing that the Decision Record was

    12Even if BLM did depart from its own guidance (which it did not) it would not render the

    CATEX inapplicable. See Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000) (referring tointerpretations contained in policy statements and agency manuals as lacking the force of law).

    13Petitioners cite (Petrs Br. 44) an email in the administrative record (AR 003341) for the

    proposition that a typical herd management gather requires an EA. But as stated in that very

    same email: This removal is not a typical gather . . . . AR 003341.

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    arbitrary and capricious. See FCC v. Fox Television Stations, 556 U.S. 502, 514

    (2009)(APAs standard of review is not more searching when an agencys

    decision veers from prior policy.). For the reasons stated above, Petitioners have

    not carried that burden here.

    D. BLMs Action did not Contravene FLPMA

    In its CATEX and associated Decision Record, BLM accurately stated that

    while FLPMA applies to BLMs management of public lands, it does not preempt

    the Wild Horses Act, nor does it apply to private lands. CATEX at 4 (AR 003359);

    DR at 3 (AR003371). Petitioners allege that BLM claimed that merely because

    FLPMA does not apply to priva