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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.___________________________________

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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

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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

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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

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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

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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

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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