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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF WYOMING

Case No. 14-cv-152-NDF

AMERICAN WILD HORSE PRESERVATION CAMPAIGN, et al.,

Petitioners

v.

SALLY JEWELL, et al.,Respondents,

and

ROCK SPRINGS GRAZING ASSOCIATION,

Respondent-Intervenor,

and

STATE OF WYOMING,Respondent-Intervenor.

PETITIONERS OPENING BRIEF

AND ADDENDUM

Timothy Kingston

LAW OFFICE OF TIM KINGSTON,LLC

408 West 23rd Street, Ste. 1

Cheyenne, WY 82001

TEL: (307) 638-8885FAX: (307) 637-4850

[email protected]

William S. Eubanks II

Caitlin T. Zittkowski

MEYER GLITZENSTEIN &CRYSTAL

1601 Connecticut Ave. NW, Ste. 700

Washington DC, 20009TEL: (202) 588-5206

FAX: (202) 588-5049

[email protected]

[email protected]

Counsel for Petitioners

Case 2:14-cv-00152-NDF Document 67 Filed 12/19/14 Page 1 of 184


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TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

GLOSSARY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATUTORY AND REGULATORY FRAMEWORK.. . . . . . . . . . . . . . . . . . . . . 2

A. The Creation and Regulation of the Wyoming

Checkerboard. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

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

C. The National Environmental Policy Act. . . . . . . . . . . . . . . . . . . . . . . 8

FACTUAL BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

A. The Adobe Town, Salt Wells Creek, and Great Divide

Basin HMAs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

B. The RSGA Litigation and the Resulting 2013 ConsentDecree. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

C. BLMs Implementation of the RSGA Consent Decree. . . . . . . . . . . 15

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

I. PETITIONERS HAVE STANDING TO BRING THIS ACTION.. . . . . . . 23

II. BLM IS VIOLATING THE WILD HORSE ACT. . . . . . . . . . . . . . . . . . . . 24

A. BLM's Novel WHA Interpretation that Allows BLM to

Discard Section 3 in Permanently Removing Hundreds of

Wild Horses from Public Lands Cannot Be Sustained under

ChevronStep 1... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25



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B. Even If Section 3 of the WHA Were Ambiguous, BLM's

Novel Statutory Construction Cannot Be Upheld under

ChevronStep 2... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

III. BY MANAGING WILD HORSE POPULATIONS BELOW AML,

BLM IS CONTRAVENING THE APPLICABLE RMPs, FLPMA,

THE WHA, NEPA, AND THE APA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

IV. BLM IS VIOLATING NEPA IN MYRIAD WAYS.. . . . . . . . . . . . . . . . . . 40

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

ii



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iii

TABLE OF AUTHORITIES

CASES PAGE

Aspenwood Inv. Co. v. Martinez,355 F.3d 1256 (10th Cir. 2004) ............................................................................29

Bowen v. Georgetown Univ. Hosp.,488 U.S. 204 (1988) .............................................................................................34

BP Am., Inc. v. Okla. ex rel. Edmondson,

613 F.3d 1029 (10th Cir. 2010) ..................................................................... 25, 26

Burrage v. United States,134 S. Ct. 881 (2014)............................................................................................31

Camfield v. United States,

167 U.S. 518 (1897) ...........................................................................................4, 6

Cent. Bank of Denver v. First Interstate Bank,511 U.S. 164 (1994) .............................................................................................31

Chafin v. Chafin,

133 S. Ct. 1017 (2013)..........................................................................................23

Chevron U.S.A., Inc. v. Natural Res. Def. Council,467 U.S. 837 (1984) ............................................................ 1, 2, 22, 23, 27, 36, 37

Citizens for Better Forestry v. U.S. Dep't of Agric.,

341 F.3d 961 (9th Cir. 2003) ................................................................................45

Colo. Wild Horse and Burro Coal.v. Salazar,

639 F. Supp. 2d 87 (D.D.C. 2009)........................................................................26

Custer Cnty. Action Ass'n. v. Garvey,

256 F.3d 1024 (10th Cir. 2001) ............................................................................44

Dep't of the Treasury, IRS v. Fed. Labor Rel. Auth.,494 U.S. 922 (1990) .............................................................................................32



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iv

Elwell v. Okla. ex rel. Bd. of Regents of Univ. of,Okla., 693 F.3d 1303 (10th Cir. 2012) .................................................................30

Erlenbaugh v. United States,409 U.S. 239 (1972) .............................................................................................27

Fallini v. Hodel,

783 F.2d 1343 (9th Cir. 1986) ....................................................................... 28, 35

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000) .............................................................................................30

Friends of the Earth v. EPA,

446 F.3d 140 (D.C. Cir. 2006)..............................................................................37

Friends of the Earth, Inc. v. Laidlaw Envtl. Serv., Inc.,

528 U.S. 167 (2000) .............................................................................................23

Fund for Animals. v. BLM,

460 F.3d 13 (D.C. Cir. 2006) ................................................................................44

Horphag Research Ltd. v. Garcia,

475 F.3d 1029 (9th Cir. 2007) ..............................................................................33

In Def. of Animals v. U.S. Dep't. of Interior,

909 F. Supp. 2d 1178 (E.D. Cal. 2012) ............................................................6, 38

Lac du Flambeau Band v. Stop Treaty Abuse,

991 F.2d 1249 (7th Cir. 1993) ..............................................................................33

Leo Sheep Co. v. United States,

440 U.S. 668 (1979) ............................................................................................... 3

Lewis v. Chicago,

560 U.S. 205 (2010) .............................................................................................30

Local No. 93, Int'l Ass'n of Firefighters v. Cleveland,

478 U.S. 501 (1986) .............................................................................................31



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v

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

463 U.S. 29 (1983) ............................................................................ 22, 39, 42, 44

Mtn. States Legal Found. v. Hodel,

799 F.2d 1423 (10th Cir. 1986) ............................................................................37

N.M. Cattle Growers Ass'n v. U.S. Fish and Wildlife Serv.,248 F.3d 1277 .......................................................................................................25

Ohio Valley Envtl. Coal. v. Horinko,

279 F. Supp. 2d 732 (S.D.W.V. 2003) .................................................................30

Pub. Lands Council v. Babbitt,

167 F.3d 1287 (10th Cir. 1999) ............................................................................35

Roaring Springs Assocs. v. Andrus,471 F. Supp. 522 (D. Or. 1978) ............................................................................28

Rock Springs Grazing Ass'n v. Salazar,935 F. Supp. 2d 1179 (D. Wyo. 2013) ...................................................... 3, 10, 14

Town of Barnstable, Mass. v. FAA,

659 F.3d 28 (D.C. Cir. 2011) ................................................................................35

U.S. v. Power Eng'g Co.,303 F.3d 1232 (10th Cir. 2002) ............................................................................36

United Keetoowah Band of Cherokee Indians of Okla. v. HUD,

567 F.3d 1235 (10th Cir. 2009) ............................................................... 22, 23, 36

United States v. AdameOrozco,607 F.3d 647 (10th Cir. 2010) ..............................................................................25

Utah Envtl. Cong. v. Bosworth,443 F.3d 732 (10th Cir. 2006) ..............................................................................42

Util. Air Reg. Grp. v. EPA,___ U.S. ___, 134 S. Ct. 2427 (2014) ..................................................................30



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vi

Valley Camp of Utah, Inc. v. Babbitt,

24 F.3d 1263 (10th Cir. 1994) ..............................................................................33

Whitman v. Am. Trucking Ass'ns,

531 U.S. 457 (2001) .............................................................................................29

Wilderness Watch v. Mainella,375 F.3d 1075 (11th Cir. 2004) ..................................................................... 41, 44

STATUTES

5 U.S.C. 706(2) .............................................................................................. 22, 40

16 U.S.C. 1331-1340 .................................... 1, 4, 5, 6, 7, 8, 24, 25, 28, 34, 39 36

42 U.S.C 4321-4370f ........................................................................................2, 8

43 U.S.C. 1061-1065 ............................................................................................ 3

43 U.S.C. 1701-1787 ......................................................................................2, 38

REGULATIONS

40 C.F.R. 1500.1-1508.27 ........................................................................ 8, 42, 43

43 C.F.R. 4700.0-4720.2 ........................................................................ 5, 6, 7, 26

43 C.F.R. 1610.5 ......................................................................................... 16, 38



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vii

GLOSSARY

AML Appropriate Management Level

APA Administrative Procedure Act

AR Administrative Record

AWHPC American Wild Horse Preservation Campaign

BLM Bureau of Land Management

CE Categorical Exclusion

DR Decision Record

EA Environmental Assessment

EIS Environmental Impact Statement

FLPMA Federal Land Policy Management Act

FONSI Finding of No Significant Impact

HMA Herd Management Area

NEPA National Environmental Policy Act

RMP Resource Management Plan

RSGA Rock Springs Grazing Association

UIA Unlawful Inclosures Act

WHA Wild Free-Roaming Horses and Burros Act



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Section 3 of the WHA is the onlystatutory provision that grants BLM any

authority to remove wild horses frompubliclandauthority triggered onlyif BLM

first makes certain mandatory determinations. See 16 U.S.C. 1333(b)(2). Thus,

because the intent of Congress is clear, that is the end of the matter, and the

Court must give effect to the unambiguously expressed intent of Congress.

Chevron, 467 U.S. at 842-43. This outcome cannot be avoided simply because

BLM desires to be freed from the WHAs text in order to address what BLM views

as an administrative inconvenience in taking actions in the Checkerboardi.e., a

public policy argument that has no relevance in the Chevronframework.

Likewise, since BLMs decisions to exclude this action from environmental

analysis and to reduce the wild horse populations at issue far below the agencys

own established appropriate management levels (AML) were also premised on

BLMs willful disregard for thepublic land component of its action, BLM has also

violated the National Environmental Policy Act (NEPA), 42 U.S.C. 4321-

4370f, the Federal Land Policy and Management Act (FLPMA), 43 U.S.C.

1701-1787, and its own governing Resource Management Plans (RMPs).

STATUTORY AND REGULATORY FRAMEWORK

A.

The Creation and Regulation of the Wyoming Checkerboard

In 1862, Congress created the Wyoming Checkerboard land management

scheme in order to facilitate the construction of a transcontinental railroad. See



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Rock Springs Grazing Assn v. Salazar, 935 F. Supp. 2d 1179, 1182 (D. Wyo.

2013) (Freudenthal, J.). Today, the Checkerboard still consists of one-mile-by-one-

mile squares of federal public land continuously alternating with one-mile-by-one-

mile squares of private land, forming a checkerboard pattern encompassing an

area roughly 40 miles wide and 80 miles long and containing slightly more than

two million acres.Id. In turn, approximately half of the Checkerboard is privately

owned, while the other half is federally owned public land.Id.

Ranchers quickly realized that by owning a small portion of land within the

Checkerboard they could assert control over large swaths of public land. Thus,

soon after Congress created the Checkerboard, ranchers began to fence in and

exclude access to the public land portions of the Checkerboard in order to graze

livestock. See Leo Sheep Co. v. United States, 440 U.S. 668, 683-684 (1979)

(discussing the range warsand noting that one exclusionary technique was the

illegal fencing of public landsas a product of the checkerboard pattern).

Congress responded to this illegal fencing by enacting the 1885 Unlawful

Inclosures Act (UIA), 43 U.S.C. 1061-1065. The UIA prohibits both the

physical enclosure of public lands and any assertion of a right to the exclusive use

and occupancy of any part of the public lands. 43 U.S.C. 1061. This, however,

did not stop enterprising ranchers from strategically placing fences on their

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public land for their own private use. See, e.g.,Camfield v. United States, 167 U.S.

518 (1897) (challenging private fences used to fence in public Checkerboard land).

The Supreme Court determined that this type of strategic fencing violated the UIA.

Id.at 528 (explaining that landowners cannot build[] a fence which . . . can only

have been intended to inclose the lands of the government). However, [s]o long

as the individual proprietor confines his inclosure to his own land the government

has no right to complain.Id. Thus, on the Checkerboard, ranchers cannot fence in

or assert a right to public land for their own private use, but they can fence in their

individual one-mile-by-one-mile square of private land, although few do, given

their interest in grazing livestock freely between the public and private land.

B. The Wild Free-Roaming Horses and Burros Act

In 1971more than 100 years after it created the CheckerboardCongress

enacted the WHA out of concern that wild horses were disappearing from the

American scene. 16 U.S.C. 1331. Congress directed that wild horses shall be

protectedfrom capture, branding, harassment, [and] death and be considered in

the area where presently found, as an integral part of the natural system of the

public lands.Id.To implement that mandate, Congress declared that the

Department of Interior, through BLM, shall manage wild free-roaming horses and

burros as components of the public lands, and provided that [a]ll management

activities shall be at the minimal feasible level. 16 U.S.C. 1333(a).



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Under the WHA, BLM manages wild horses on public lands within herd

management areas (HMA), which areestablished for the maintenance of wild

horse . . . herds, 43 C.F.R. 4710.3-1, in the areas they used in 1971. See 43

C.F.R. 4700.0-5(d). BLM designates HMAs in RMPs, which are prepared

through a land-use planning process conducted pursuant to FLPMA. FLPMAs

implementing regulations require BLM to maintain RMPs that are designed to

guide and control future management actions onpublic lands.Id. 1601.0-2.

Modifications to HMAs, including alterations to their boundaries, can only be

adopted through this land-use planning process, which requires extensive public

notice, comment, and compliance with NEPA. See43 C.F.R. 4710.1; AR252-53

(decisions to designate or modify an HMA must be made through a [land use

plan] amendment, revision or new RMP).1

The WHA requires BLM to manage wild horses 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). To do so, for each HMA, BLM must: (1)

maintain a current inventory of wild horses in each HMA, (2) determine [the]

appropriate management leveli.e., the AMLof wild horses that the HMA can

1All citations to the final administrative record (AR) lodged by BLMrefer to the

Bates number(s) listed on the specific page(s) of the cited material. All AR pagescited by Petitioners are included in an Appendix filed with the Court.



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sustain, and (3) determine the method of achieving the designated AML and

managing horses within it. 16 U.S.C. 1333(b)(1); 43 C.F.R. 4710.2, 4710.3-1.

An AML is expressed as a population range within which [wild horses] can

be managed for the long termin an HMA without resulting in rangeland damage.

See AR262. The lower limit of the AML range is established at a number that

allows the population to grow (at the annual population growth rate) to the upper

limit over a 4-5 year period, without any interim gathers.Id.BLM establishes an

AML for each HMA when developing the applicable RMP, which involves an

extensive planning process that requires public notice and comment, as well as

compliance with NEPA. AR263;see alsoIn Def. of Animals v. U.S. Dept. of

Interior, 909 F. Supp. 2d 1178, 1192 (E.D. Cal. 2012) (AMLs are determined

through revisions to the applicable [RMP].).

Section 3 of the WHA grants BLM the authority to manage and protect wild

horses by permanently removing excess horses from public lands, but only after

BLM specifically determines that: (1) an overpopulation [of wild horses] exists on

a given area of the public lands, and (2) action is necessary to remove excess

animals. 16 U.S.C. 1333(b)(2). An excess wild horse is one that must be

removed from an area in order to preserve and maintain a thriving natural

ecological balance . . . in that area. 16 U.S.C. 1332(f).Once BLM makes a



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confer authority to BLM topermanentlyremove any wild horses from the range;

rather, its narrow focus is on transferring horses from privately owned lands

back to the public lands from which they stray[ed]. 16 U.S.C. 1334.

C.

The National Environmental Policy Act

NEPA is the nations basic national charter for the protection of the

environment, 40 C.F.R. 1500.1, and is binding on all Federal agencies. 40

C.F.R. 1500.3. NEPA requires agencies to prepare an Environmental Impact

Statement (EIS)for major actions that may significantly affect the

environment. 42 U.S.C 4332(C); 40 C.F.R. 1508.27. At minimum, an agency

mustprepare an Environmental Assessment (EA) to determine whether the

environmental effects of its proposed action are significant, thus requiring the

preparation of an EIS. 40 C.F.R. 1501.4(b). When an agency determines that an

EIS is not required, it issues its EA along with a Finding of No Significant

Impact (FONSI), which must explain why the agencys chosen action will not

have a significant effect on the environment.Id. 1508.13.

In rare instances, an agency may categorically exclude actions from NEPA

review.Id. 1508.4. A categorical exclusion is a category of actions which do not

individually or cumulatively have a significant effect on the human environment

and which have been found to have no such effect.Id. In the Interior Department

manual governing BLMsNEPA procedures, there is a categorical exclusion for



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the [r]emoval of wild horses or burros fromprivate landsat the request of the

landowner. AR3389 (emphasis added). BLM does nothave a categorical

exclusion for the permanent removal of wild horses from public lands.

FACTUAL BACKGROUND

A.

The Adobe Town, Salt Wells Creek, and Great Divide Basin HMAs

The Adobe Town, Salt Wells Creek, and Great Divide Basin HMAs are

located in southwest Wyoming, comprising approximately 2,427,220 acres of land.

See AR642; AR3356. Roughly 70% (1,695,517 acres) of these three HMAs is

public land, while only 30% (731,703) is private land.Id. The majority of the

privately owned land falls within the Wyoming Checkerboard and is owned,

leased, or otherwise controlled by Intervenor Rock Spring Grazing Association

(RSGA).Id. The non-Checkerboard lands within these three HMAswhich

comprises well over half of the total land areaprimarily consists of contiguous

blocks of public land.Id.

The Adobe Town HMA is managed by BLMs Rawlins Field Office under

the 2008 Rawlins RMP. AR645. The Rawlins RMP set the AML for the Adobe

Town HMA at 700 wild horses, which is accomplished by managing horses at

BLMs establishedAML range of 610-800. See AR235. The Salt Wells Creek and

Great Divide Basin HMAs are managed by BLMs Rock Springs Field Office

under the 1997 Green River RMP. AR645; AR822. The Green River RMP set the



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AML for the Salt Wells Creek HMA at 251-365 and for the Great Divide Basin

HMA at 415-600. See AR91. Both RMPs require that BLM [m]aintain wild horse

populations within the appropriate management levels (AML).AR235; AR41.

B.

The RSGA Litigation and the Resulting 2013 Consent Decree

In July 2011, RSGA filed a complaint in this Court seeking an order

pursuant to Section 4 of the WHA compelling BLM to remove all of the wild

horses that had strayed onto RSGAsprivate land in the Wyoming Checkerboard.

Rock Springs Grazing Assn v. Salazar (RSGA Case), No. 2:11-cv-263, ECF No.

1. Certain Petitioners in this case were granted intervention.Id., ECF No. 32.

In its opening brief, BLM argued that RSGA was not entitled to the relief it

sought under Section 4 of the WHA.Id., ECF No. 67. The government explained

that while RSGA could certainly request BLM to remove [wild] horses from

private landsunder Section 4, RSGA was not the de factomanager of wild

horses on the Checkerboard landssimply because it owned private land within the

Checkerboard.Id. at 25-26. BLM maintained that the Court could not forc[e]

BLM to manage wild horses on private and public lands [within the Checkerboard]

to the number [RSGA] deem[ed] appropriate because [s]uch relief would exceed

the scope of Section 4 of the [WHA], id. at 25-26, and would interfere with

BLMs discretion.Id. at 41. In addition, the government disavowed RSGAs

interpretation of Section 4, which would require BLM to constantly manage and



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Mountain HMA in 2015, with the exception of those wild horses that are allowed

to remain as identified in paragraphs 1 and 4,AR469 (emphasis added)i.e., no

horses would be removed below AML. See AR468 (stating that BML would only

remove horses on the public lands of these HMAs to the low end of AML). BLM

also agreed to submit to the Federal Register for publication a notice of scoping

under NEPA to consider . . . revising the respective [RMPs] to reduce the Salt

Wells, Great Divide Basin, and Adobe Town AMLs. AR470.

Given BLMsposition regarding Section 4slimitations, the Consent Decree

contained several provisions designed to ensure BLMs ability to complywith the

WHA. Specifically, paragraph 17 contained the following guarantee:

Respondents are required to comply with other federal laws in

conjunction with undertaking the required actions herein. No

provision of this Consent Decree shall be interpreted or constitute acommitment or requirement that the Respondents take actions in

contravention of the WHA, FLPMA, NEPA, the APA.

AR474 (emphasis added). Paragraph 10 further explained that [n]othing in this

Consent Decree shall be construed to limit or modify the discretion accorded to

BLM by the applicable federal law and regulations. . . or general principles of

administrative law with respect to theprocedures to be followed in carrying out

any of the activitiesrequired herein. AR471-72 (emphases added).

The intervenors objected to the Consent Decree for myriad reasons. See

RSGA Case, ECF No. 86-1. Among their primary concerns was that, despite the



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language assuring compliance with all applicable federal laws, BLM had obligated

itself to remove not only all wild horses from the lands that are privately owned

. . . but also wild horses that currently use the more than one million acres ofpublic

lands in the Wyoming Checkerboard.Id. at 3. In turn, the intervenors argued that

the Consent Decree essentially require[d] the agency to remove more wild horses

from the Wyoming Checkerboard than is currently permitted under the existing

laws.Id. Moreover, the intervenors explained that BLM cannot legally remove

wild horses frompublic landwithout first making certain statutorily required

decisions, which, in turn, cannot be made without compliance with NEPA and

other laws.Id. at 10-14. Nor, the intervenors argued, could BLM reduce the AMLs

in any of the HMA before going through a public NEPA process.Id. at 14-16.

In response, BLM argued that the intervenors objections were based on

mischaracterizations of the clear terms of the proposed Decree.RSGA Case, ECF

No. 88 at 7. While accusing the intervenors of focusing their objections on how

they speculate BLM will implement the Decree, id., ECF No. 89 at 15-16, RSGA

assured the Court that the Consent Decree provides for the orderly removal of

wild horses fr om RSGA lands, while complying with federal laws, including

NEPA, WHA, and the [APA] and that BLM had simply agreed to considerthe

option of revising the HMA boundaries and the AMLs for the three HMAs.Id.at

2-3 (emphases added);see alsoid., ECF No. 88 at 7-8 (Under the proposed



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Consent Decree, the BLM agrees only to considerAML modifications and the

potential environmental effect thereof in resource management plan revisions and

associated NEPA documents.) (emphases added). Hence, recognizing BLMs

duty to remove wild horses from private lands under Section 4,id., ECF No. 88

at 6, both parties assured the Court that, in implementing the Consent Decree,

BLM would remove wild horses from RSGAs private land, but would not

permanently remove any wild horses frompublic land (or modify AMLs) until

BLM satisfied the appropriate procedures under the WHA, NEPA, and other laws.

Based on these assurances, this Court approved the Consent Decree, finding

that it did not on its face violate the law or public policy.RSGA, 935 F. Supp. 2d

at 1191. Focusing on paragraph 10, the Court concluded that the Consent Decree

expressly prohibits any construction which would limit or modify the discretion

accorded to BLM by the applicable federal law and regulations.Id. at 1189. The

Court noted that the AMLs for the identified HMAs are not changed by the

Consent Decree and that the Decree specifically requires compliance with NEPA

and the WHA before they could be changed.Id. The Court ultimately held that

whether the Consent Decree actually limits the BLMs discretion will turn on the

implementation and force of the Decree, which is unclear at this junctureand

thus, the intervenors objections are not ripe for adjudication.Id. at 1189-90.



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C.

BLMs Implementation of the RSGA Consent Decree

i.

The 2013 Adobe Town and Salt Wells Roundup

In 2013, BLM immediately began to implement the Consent Decree with a

roundup in the Adobe Town and Salt Wells Creek HMAs designed to remove wild

horses from RSGAs private lands while alsomaintaining populations above low

AML on the HMAs publiclands. AR469 (BLM will commit to gather and

remove wild horses from Checkerboard lands within Salt Wells and Adobe Town

HMAs in 2013.); AR645 (noting that the proposed roundup is necessary to meet

the terms of the 2013 Consent Decree); AR694 (Wild horses will be removed

from private lands and the checkerboard and be maintained at AML within the

federal land block in accordance with the existing 1997 Green River RMP and the

2008 Rawlins RMP.). Accordingly, in July 2013, BLM issued an EA and a

FONSI for twoseparateagency actions: (1) the permanent removal of excess

wild horses from public land in the Adobe Town and Salt Wells HMAs under

Section 3, and (2) the removal of horses that had strayed onto private lands within

the Adobe Town and Salt Wells HMAs under Section 4. SeeAR645; AR741.

In the EA, BLM identified the AMLs for both the Adobe Town HMA (610-

800 wild horses) and the Salt Wells Creek HMA (251-365 wild horses) and made a

formal excess determination as required by the WHA. See AR644 (BLM has

determined that approximately 586 excess wild horses need to be removed).In



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response to comments, BLM explained why the agency was required to maintain

the AML within the Adobe Town and Salt Wells Creek HMAs:

Wild horses will be removed from private lands and the checkerboard

and be maintained at AML within the federal land block in accordancewith the existing 1997 Green River RMP and the 2008 Rawlins RMP.

Changes to HMA boundaries and AML are land use planningallocations and are outside the scope of this analysis . . . . Interim

management of wild horses will continue to be in conformance with theexisting RMPs until the amendments and revision is complete, in

accordance with 43 CFR 1610.5.

AR694 (emphases added).

Despite statements in the EA indicating that the AML will be maintained,

AR 699, Petitioners remained concerned that BLMs decision topermanently

remove all excess horses from the public land while also removing all horses

from private land within these two HMAs could bring the populations in these

areas to below low AML. However, BLM assured Petitioners that the population

will be maintained at the low AML within the federal land block. AR3408-09.

In November 2013, pursuant to its EA, BLM rounded up 668 horses from

the Adobe Town and Salt Wells HMAs. AR3357. BLM permanently removed 586

of those wild horses from the range, which was the combined number of horses

BLM determined were excess wild horses.Id. The remaining 79 wild horses

removed from the private Checkerboard lands were released back into the federal

public land block of these HMAs in order to maintain the AML in the Adobe Town

and Salt Wells HMAs.Id. BLMs decision was not challenged in court.



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ii.

The Initially Proposed Roundup in Great Divide Basin

Soon after completing the Adobe Town/Salt Wells roundup, BLM again

invoked the Consent Decree to gather and remove wild horses from Checkerboard

lands within . . . [the] Great Divide Basin HMA in 2014. AR469. In December

2013, BLM initiated a NEPA process by issuing a Scoping Statement for two

separate actions: (1) the permanent removal of excess wild horses frompublic

lands in the Great Divide Basin HMA under Section 3, and (2) the removal of wild

horses from private lands within that HMA under Section 4. See AR822. BLM

made clear that, while all horses would be removed from private land, some may

be relocated in the northern part of the Great Divide Basin HMA to maintain the

low AML (415 wild horses) within the HMA.Id. This scoping statement mirrored

the approach undertaken by BLM in its 2013 roundup in the Adobe Town and Salt

Wells HMAs under the Consent Decree. CompareAR822, withAR642.

In response to this statement, RSGA identified concerns with BLMs

proposed action to remove wild horses to the low [AML] for the HMA, as this was

believed to be inconsistent with the 2013 Consent Decree provision for removing

all wild horses from checkerboard lands. AR3357. RSGA asserted that BLM must

remove all wild horses from the Checkerboard because, under the Decree, the

Checkerboard is effectively off limits to wild horses and cannot be considered as



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part of their available habitat. AR1318. In turn, RSGA demanded that the Great

Divide Basin AML be reduced to reflect the reduction in land. AR1317.

In February 2014, RSGAscounsel sent a letter to BLMscounsel notifying

BLM that, in RSGAs view, the agency was in violation of the Consent Decree

because BLM had not removed all [] wild horses on the Checkerboard. AR3313.

RSGA reiterated its view that, under the Consent Decree, the Checkerboard is no

longer available to wild horses, id., and accused BLM of sabotag[ing] the

Consent Decree by maintaining the AML within the Adobe Town and Salt Wells

Creek HMAs during the 2013 roundup. AR3314. Even though RSGA recognized

that BLM had thus far complied with the Consent Decree by beginning the

appropriate NEPA process to considerreducing the AMLs for the Salt Wells and

Great Divide Basin HMAs, RSGA concluded its letter with the following:

[G]athering only a minimum number of wild horses and leaving the

rest is not [in] compliance with the Consent Decree. Delaying anychanges to AML or HMA boundaries is also not [in] compliance [with

the Consent Decree]. Regardless of the state of the RMP revision,BLM must pursue revision of AMLs and HMA boundaries

immediately, because these two decisions impede compliance.

AR 3317.

As a result of RSGAs demands, the Justice Departmenti.e., the same

agency that previously assured the Court that, under the Consent Decree, no wild

horses would be removed from public lands in these HMAs unless BLM first

achieved compliance with the WHA, NEPA, and other laws,see supra at 13-14



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instructed BLM that the 2013 Adobe Town/Salt Wells roundup was in violation of

the Consent Decree and that the agency could not proceed in the same manner in

the future. AR3341-42 (We have a planned EA that was publicly scoped in

December 2013; however, DOJ has stated that we cannot proceed in this scope and

manner.). Thus, BLM decided not to gather the Great Divide Basin HMA to low

[AML] under Section 3 of the WHA but instead to gather all wild horses from

the checkerboard within the HMAs under BLMsSection 4 authority. AR3369.

BLM acknowledged that this was a fundamental change in the way the

agency interpreted the Consent Decree and the WHA. AR3341. While grappling

with this drastic shift, the BLM State Director flagged several problems that would

be difficult to address in an EA. AR3340; AR3348. For example, he explained that

proceeding solely under Section 4 will result in the HMA[s] being significantly

below low AML, and that preparing an EA that proposed to remove wild horses

from the checkerboard lands with no regard for the low AML will be very

challenging and has not previously been done in Wyoming. AR3349. Moreover,

he stated that changes to the AML will requireanalysis that is typically done in

an EISthrough the land use planning process and will . . . be very controversial.



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horses from private land upon request from a landowner. However, the DR and CE

made clear that wild horses will also be [permanently] removed from the public

landportions of the Checkerboard. AR3360 (emphasis added); AR3371.

Although Section 3 of the WHA is the only provision authorizing BLM to

permanently remove any wild horses from public land, BLM did not purport to

comply withor even invokeSection 3 in making this decision. In particular,

BLM did not make the excess determination required by Section 3 prior to

permanently removing any wild horses from public land. Nor did the DR or CE

identify, let alone discuss, the operative AMLs for these three HMAs. Rather,

BLM ignored the public land component of its action and asserted that the

management direction set forth in the Green River and Rawlins RMPs, including

that related to [AMLs], do not apply toprivatelands. AR3371 (emphasis added).

iv. The Resulting Roundup

In Fall 2014, BLM permanently removed 1,263 wild horses from these

HMAs and placed them in long-term holding facilities,see ECF58-1 5. As the

following table demonstrates, only 649 wild horses remain on the 2,427,220 acres

of land70% of which is publicwithin these three HMAs.Id. 7.

HMA AML Post-Roundup Population

Great Divide Basin 415-600 91

Salt Wells Creek 251-365 39

Adobe Town 610-800 519



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ARGUMENT

Under the Administrative Procedure Act (APA), the Court shall . . . hold

unlawful and set aside agency action that is arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.5 U.S.C. 706(2). An action

is arbitrary and capricious if the agency has relied on factors which Congress has

not intended it to consider, entirely failed to consider an important aspect of the

problem, [or] offered an explanation for its decision that runs counter to the

evidence before the agency.Motor Vehicle Mfrs. Assn v. State Farm Mut. Auto.

Ins. Co., 463 U.S. 29, 43 (1983). Thus, although an agency may deviate from its

prior practice, it is obligatedto supply a reasoned analysis for the change.Id. at

42-43. If the agencys explanationis deficient, the Court may not supply a

reasoned basis for the agencys action that the agency itself has not given.Id.

When determining whether an action is in accordance with law, the Court

applies the two-step analysis set forth in Chevron, 467 U.S. at 842. Under this

analysis, the Court must first determine whether Congress has directly spoken to

the precise question at issue. United Keetoowah Band of Cherokee Indians of

Okla. v. HUD, 567 F.3d 1235, 1239 (10th Cir. 2009) (quoting Chevron, 467 U.S. at

842). If Congress has spoken directly to the issue, that is the end of the matter; the

court . . . must give effect to Congresss unambiguously expressed intent.Id. Only

if the statute is ambiguous on the pertinent issue should the Court proceed to step



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two and ask whether the agencys answer is based on a permissible construction

of the statute.Id. (quoting Chevron, 467 U.S. at 843). However, the Court must

not impose [its] own construction of the statute and will not defer to an agencys

construction if it is manifestly contrary to the statutory scheme.Id. at 1240.

As demonstrated below, BLMs decision topermanentlyremove wild horses

frompublic lands under Section 4 of the WHA is arbitrary, capricious, and

contrary to the WHA, NEPA, FLPMA, and the APA.

I.

PETITIONERS HAVE STANDING TO BRING THIS ACTION.

This Court has Article III jurisdiction to review Petitioners claims. First,

through their detailed declarations attesting to their cognizable interests that have

beenand continue to beimpaired by BLMs actions,see Exhibits A-D,

Petitioners have plainly established standing to challenge those actions. See, e.g.,

Friends of the Earth, Inc. v. Laidlaw Envtl. Serv., Inc., 528 U.S. 167, 180-81

(2000) (explaining the requirements for Article III standing). Second, because

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

Petitioners injuries,see, e.g., Exhibit A 11; Exhibit B 14; Exhibit C 9, this

case presents a live controversy. See, e.g., Chafin v. Chafin, 133 S. Ct. 1017, 1023

(2013) (holding that a case becomes moot only when it is impossiblefor a court to

grant any effectual relief whatever to the prevailing party)(citation omitted).



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II.

BLM IS VIOLATING THE WILD HORSE ACT

In BLMs words, the agency has two distinct obligations under the Wild

Horse Act. ECF 30 at 1. The first involves management of wild horses on public

land; the second distinct and independent dut[y] involves wild horses that have

strayed onto private land.Id. at 2. It is indisputable that Section 3 of the WHA, 16

U.S.C. 1333, directs all BLM actions related to wild horses on public land, while

Section 4 of the WHA, id. 1334, governs BLMs actions on private land. These

two provisions are absolute and do notcontain any exceptions for checkerboard

management schemes. Hence, BLM has a non-discretionary statutory obligation to

comply with Section 3 before taking action to permanently remove any horses

from the Checkerboards public lands, as is the case on any other public lands.

Here, thumbing its nose at these obligations (and four decades of BLMs

owninterpretation of these statutory mandates), BLM entirely ignored its Section 3

duties and treated the entire Checkerboard as if it were RSGAs private land. See

AR3313 (RSGA demanding that the Checkerboard is no longer available to wild

horses); AR3357; ECF 29 at 10 (BLM must manage wild horses within the

checkerboard portion of the affected HMAs as if they are all occupying private

range.). By turning a blind eye to the reality that half of the Checkerboard consists

of public land, BLM relied solely on Section 4 of the WHA inpermanently

removing wild horses frompublicland for the fi rst time in agency history. In



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key requirements that expressly limit how many horses BLM may permanently

remove from public land: (1) a formal excess determination, id., and (2) the AML

established for each HMA.Id (requiring that BLM achieve [and manage within]

appropriate management levels). Thus, in the WHA, Congress explicitly required

that BLM mustmake an excess determination beforepermanently removing any

wild horses from public land, and must not remove any horses belowlow AML.

Id.; 43 C.F.R. 4720.1; Colo. Wild Horse and Burro Coal.v. Salazar,639 F.

Supp. 2d 87, 95-96 (D.D.C. 2009) (finding that Congress clearly intended to

protect non-excess wild free-roaming horses . . . from removal and that BLMs

removal authority is limited to those . . . horses . . . that it determines tobe excess

animals within the meaning of the [WHA],and holding that [a] prerequisite to

removal under the [WHA] is that BLM first determine that an overpopulation

exists and that the . . . horses . . . slated for removal are excess animals).3

Importantly, although Congress was acutely aware of the peculiarities of the

Wyoming Checkerboard when it enacted the WHA in 1971indeed, Congress

previously established the Checkerboard ownership pattern,see supra at 2-3

Congress certainly did not create any exceptions to accommodate BLMs

3The only extremely narrow exception where BLM may remove wild horses

without observance of all Section 3 proceduresi.e., making a formal excessdetermination and managing above low AMLis where an emergency situation

exists and immediate action is needed to protectthe health and welfare of a wild

horse or burro population.AR3397. BLM did not invoke that limited exceptionhere, as no emergency situation existed when BLM issued its decision.



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prospective actions related to wild horses in the Checkerboard. See Erlenbaugh v.

United States, 409 U.S. 239, 244 (1972) (courts must necessarily assume[] that

whenever Congress passes a new statute, it acts aware of all previous statutes on

the same subject) (citation omitted).To the contrary, Congress broadly directed

BLM in Section 3 to first satisfy all of the legal prerequisites before permanently

removing any wild horses from anypublic lands under BLMs jurisdiction.

Ignoring Congresss dictates, BLM permanently removed hundredsof wild

horses frompublic land in its 2014 roundup, ECF58-1 5, without even attempting

to comply with the statutory requirements set forth in Section 3 of the WHAi.e.,

the only legalmechanism Congress created in the WHA under which BLM is

authorized to permanently remove wild horses from public land.Id.As a result,

BLM permanently removed hundreds of non-excess horses from the range and

reduced these populations far below their established AMLs. Thus, because BLM

is deliberately ignoring the unambiguously expressed intent of Congressin

Section 3, Chevron, 467 U.S. at 843, this should be the end of the matter.

This conclusion is only bolstered by the fact that thesole authority BLM

invoked in authorizing the permanent removal of hundreds of wild horses from

public lands in these three HMAsSection 4 of the WHA,see AR3369plainly

does not confer BLM any authority to permanently remove wild horses from

publiclands (whether or not adjacent to private lands). See 16 U.S.C. 1334



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(providing BLM the very limited authority to remove wild horses fromprivate

land when the owners of such land . . . inform [BLM] that a wild horse has

stray[ed] from public lands onto privately owned land).

Nor, for that matter, does BLM have any legal duty (or authority) under

Section 4 topreemptively remove wild horses frompublic land to prevent them

from straying onto private land. See Fallini v. Hodel, 783 F.2d 1343, 1346 (9th Cir.

1986) (We fail to find any suggestion by Congress . . . that the BLM ha[s] a duty,

ministerial or prescribed, to prevent straying of wild horses onto private land.); id.

(The Act does not charge BLM with the duty to prevent wild horses from

straying.);Roaring Springs Assocs. v. Andrus, 471 F. Supp. 522, 523 (D. Or.

1978) (Even if geography and the habit of these wild free-roaming horses dictate

that the Secretary of the Interiormust go back again to retrieve the animals, that is

nevertheless his duty prescribed by the statute.) (emphasis added).This is only

reinforced by BLMs admission that Section 4 does not authorize the type of

continuing management that require[s] BLM to constantly manage and prevent

wild horses from straying onto private lands.RSGA Case, ECF No. 67 at 25.

Consequently, BLMs argument necessarily boils down to the proposition

that either Section 3 applies to all permanent wild horse removals from public land

exceptin the Checkerboard, or, even if the Checkerboard is not exempt from the

application of Section 3, the Court should allow BLM to escape the statutes plain



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terms in the Checkerboard to promote the agencys administrative convenience.

Neither of these arguments can trump Congresss clear intent under Chevron.

As a basic principle of statutory construction, the former argument is

foreclosed because Congress expressly designed the WHA as imposing an absolute

requirement that BLM satisfy various prerequisites before removing anywild

horses from anypublic lands. The text speaks of no exceptionsfor the

Checkerboard or otherwisenor is there any legislative history suggesting that

Congress intended to impose a different legal regime in the Checkerboard from all

other BLM lands. This is fatal to BLMs argument, as Congress would have clearly

articulated a major exception of this kind in the statute itself. See Whitman v. Am.

Trucking Assns,531 U.S. 457, 468 (2001) (Congress . . . does not alter the

fundamental details of a regulatory scheme in vague terms or ancillary

provisionsit does not, one might say, hide elephants in mouseholes.);

Aspenwood Inv. Co. v. Martinez, 355 F.3d 1256, 1261 (10th Cir. 2004) (courts

cannot torture the language of a statute to reach the result the agency wishes.).

The latter argument fares no better under Chevron. Although Petitioners can

understand whyBLM may wish to be excused from the requirements of Section 3

in managing the Checkerboard, BLM is not at liberty to pick and choose which

statutory mandates to comply with based on what makes BLMs task easier. See,

e.g., Ohio Valley Envtl. Coal. v. Horinko, 279 F. Supp. 2d 732, 748 (S.D.W.V.



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2003) (courts cannot evade the unambiguous directions of the law merely for

administrative convenience.) (emphasis added);Elwell v. Okla. ex rel. Bd. of

Regents of Univ. of Okla., 693 F.3d 1303, 1313 (10th Cir. 2012) (district courts are

never permitted to disregard clear statutory directions)(citation omitted).

Nor can BLMs asserted public policy rationaleno matter how

persuasivetrump the statutes plain text. As the Supreme Court reiterated this

term, it is axiomatic that an agency may not rewrite clear statutory terms to suit its

own sense of how the statuteshouldoperate. Util. Air Reg. Grp. v. EPA, ___U.S.

___, 134 S. Ct. 2427, 2446 (2014) (emphasis added);see also FDA v. Brown &

Williamson Tobacco Corp., 529 U.S. 120, 125-26 (2000) (Regardless of how

serious the problem an administrative agency seeks to address, however, it may not

exercise its authority in a manner that is inconsistent with the administrative

structure that Congress enacted into law.).

In turn, because an agencys discretion doesnot come into play under

Chevron Step 1i.e., the inquiry turns on the statutory language alonecourts

must reject agency attempts to circumvent clear statutory language on the basis of

asserted policy rationales.Lewis v. Chicago,560 U.S. 205, 217 (2010) ([I]t is not

our task to assess the consequences of each approach [to interpreting a statute] and

adopt the one that produces the least mischief. Our charge is to give effect to the

law Congress enacted.);Burrage v. United States,134 S. Ct. 881, 892 (2014)



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B.

Even If Section 3 of the WHA Were Ambiguous, BLMs Novel

Statutory Construction Cannot Be Upheld under Chevron Step 2.

Even assuming that Section 3 is ambiguouswhich it plainly is not

BLMs statutory interpretation that allows it to avoid Section 3s requirements in

managing the Checkerboards public landswould also fail under ChevronStep 2.

To begin with, BLM has notasserted in its decision documents that a

statutory ambiguity exists, nor has the agency provided anydiscernible rationale

for why it must resolve any purported ambiguity in the manner it has selected

herei.e., to dispense entirely with Section 3 when permanently removing wild

horses from public land in the Checkerboard in order to preemptively prevent them

from straying onto private land. However, because this is within the province of

the agencyrather than the CourtBLMs silence on these crucial questions

cannot be relied on to fill any purported gap in the statutory scheme. See, e.g.,

Dept of the Treasury, IRS v. Fed. Labor Rel. Auth., 494 U.S. 922, 933 (1990)

(giving reasonable content to the statutes textual ambiguities is not a task [the

Court] ought to undertake on the agencys behalf) (citations omitted).

More importantly, even if BLM hadformally advanced the statutory

interpretation in its decision documents that it now has no choice but to defend

i.e., that Sections 3 and 4 of the WHA are in such fundamental tension when



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jointly implemented in the Checkerboard that it creates a statutory ambiguitythat

interpretation would not be entitled to deference for various reasons.5

First, setting aside the critical fact that Congress intended the directives

under Section 3 and those under Section 4 to address different circumstances that

are mutually exclusive and operate independently, BLMs WHA construction is

legally impermissible because it directly conflicts with decades of the agencys

ownpractice in the Checkerboard, as well as BLMs ownwild horse policy manual

and handbook. See, e.g., Valley Camp of Utah, Inc. v. Babbitt, 24 F.3d 1263, 1267-

68 (10th Cir. 1994) (no Chevrondeference is due where the agencys

interpretation . . . is inconsistent with its prior administrative interpretations).

Here, any tension between Sections 3 and 4 has been manufactured by BLM

for the sole purpose of justifying its unprecedented decision to remove wild horses

5In denying Petitioners motion for emergency relief, the Court focused at that

stage on what it viewed as an apparent tension between Sections 3 and 4 basedon BLMs assertion that it is practicably infeasible for the BLM to meet its

obligations under Section 4 of the WHA while removing wild horses solely fromthe private lands sections of the checkerboard. See ECF No. 35 at 2, 6 (citing ECF17-6 at 6). However, the Courts ruling did not address the governing Chevron

framework or explain how BLMsunprecedented statutory interpretation could be

harmonized with that framework. In any event, now that the Court has an

opportunity to review the full administrative record and place this claim within the

proper context, it is clear that the Courts earlier ruling should have no dispositivebearing on the resolution of the merits. SeeLac du Flambeau Band v. Stop Treaty

Abuse, 991 F.2d 1249, 1258 (7th Cir. 1993) (explaining that the district court isnot only free, but more properly put, obliged, to reconsider each of her decisions

on the motion for preliminary injunction);Horphag Research Ltd. v. Garcia, 475

F.3d 1029 (1035 (9th Cir. 2007) (explaining that preliminary injunction findingsare not binding on the district court at this stage of the litigation).



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from public land without satisfying the legal prerequisites of Section 3. See Bowen

v. Georgetown Univ. Hosp., 488 U.S. 204, 213 (1988) (Deference to what appears

to be nothing more than an agencys convenient litigating position would be

entirely inappropriate.). Notably, this is thefirst time in BLMs 43-year history of

managing wild horses within the Checkerboard (or anywhere else) that the agency

has eversuggested that Sections 3 and 4 are even remotely incompatible.

Just last year, for example, BLM conducted a functionally identical roundup

of wild horses from the Checkerboard and had littletrouble fulfilling its statutory

obligations under both Section 3 (on public land) and Section 4 (on private land).

See AR645; AR741. Moreover, BLM failed to produce in the administrative record

asingleinstance from its 43 years of WHA management where itpermanently

removed wild horses frompublicland on the basis of its Section 4 authority.

This omission is not surprising, given that BLMs newly minted

interpretation is at odds with BLMs stated position to this Court and other

federal courts that Section 4 does notauthorize BLM to permanently remove all

wild horses from the RSGA lands and the adjacent public lands within the

Wyoming Checkerboard because such relieffar exceeds the statutory obligation

under 1334i.e., Section 4and wouldinterfere with BLMs discretion

under Section 3.RSGA Case, ECF. No. 67 at 41 (emphases added);see also id. at

25 (Such relief would exceed the scope of Section 4of the [WHA]) (emphasis



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added);Fallini, 783 F.2d at 1346 (accept[ing] BLMs interpretation of its

statutory duty that prevention of wild horses from straying onto private lands

would be imposing a duty not contemplated by Congress under section 4 of the

Act)(emphasis added).6

BLM cannot have it both ways. Its longstanding practicein conjunction

with the representations it has made to this Court and othersdispels any notion

that the agency cannot comply with both its Section 3 and 4 obligations on the

Wyoming Checkerboard and defeats any backdoor attempt to seek deference.7

Second, even assuming a genuine ambiguity existedwhich it does not

the manner in which BLM opted to resolve the ambiguity cannot be upheld under

basic canons of statutory construction. BLMsoverly expansive reading of Section

4 to allow permanent removals of wild horses from public land renders the portion

6BLMs interpretation also cannot be squared with the agencys ownwild horse

handbook and manual, which prohibit BLM from permanently removing wildhorses from public lands without first making a formal excess determination and

managing wild horse populations above low AML. See AR3395; AR262-64. Thatalso renders BLMs decision arbitrary and capricious. See, e.g., Town of

Barnstable, Mass. v. FAA, 659 F.3d 28, 34-36 (D.C. Cir. 2011) (finding agencyaction arbitrary and capricious because they depart[ed] from the agencys own

internal guidelines established in its own handbook).

7That BLM has abruptly changed its legal interpretation without justifying the

departure with any reasoned analysis is grounds itself for finding BLMs action

arbitrary and capricious. See Pub. Lands Council v. Babbitt, 167 F.3d 1287, 1306

(10th Cir. 1999) (When an agency departs from a prior interpretation of a statutethat it is charged with implementing, the agency must justify the change of

interpretation with a reasoned analysis.) (citations omitted).



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of Section 3 dealing with permanent removals of wild horses from public land

mere surplusage and reads thatprovision entirely out of the statute, as applied to

the Checkerboard. That outcome cannot be squared with Circuit precedent. See

U.S. v. Power Engg Co., 303 F.3d 1232, 1238 (10th Cir. 2002) ([W]e cannot

construe a statute in a way that renders words or phrases meaningless, redundant,

or superfluous.) (citations and quotation marks omitted).

Finally, BLMs anomalous statutory construction is not permissiblebecause

it is manifestly contrary to the statutory scheme. United Keetoowah Band, 567

F.3d at 1240; Chevron, 467 U.S. at 844 (regulations are not given controlling

weight if they are manifestly contrary to the statute.). BLMsfacially

implausible interpretation of Section 4 as somehow authorizing permanent removal

of wild horses from public land (thereby trumping Section 3) is not only at

loggerheads with the plain text of the statute, but is also antagonistic to the overall

statutory scheme and its express purpose ofprotectingwild horses. See 16 U.S.C.

1331 (describing Congressional purposes of the WHA). Although, under Chevron

Step 2, BLM could potentially serve the overriding purposes of the WHA by

deviating from the statutory requirements in a particular instance to benefit wild

horses, it is inconceivable for BLM to do so to the detrimentof the federally

protected animals Congress safeguarded in the WHAas BLM has done here.



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Simply put, the WHA is a wildlife protection law that is not unique in its

impact on private [land] owners.Mtn. States Legal Found. v. Hodel, 799 F.2d

1423, 1428 (10th Cir. 1986). However, by allowing, for the first time, the limited

relief in Section 4 to trump Section 3s crucial substantive protections for wild

horses, BLM has converted the WHA from a wildlife protection law into a

landowner protection law and subverted the WHAs expresspurposes. If there

were ever an agency action undeserving of deference as manifestly contrary to the

statute, Chevron, 467 U.S. at 844, it is this one. In turn, the Court should find

BLM in violation of the WHA until and unless Congress specifically relieves it

from these obligations.Friends of the Earth v. EPA, 446 F.3d 140, 142 (D.C. Cir.

2006) (explaining that if an agency believes that compliance with the statute as

written would be undesirable,then it must take its concerns to Congress).

III.

BY MANAGING WILD HORSE POPULATIONS BELOW AML,

BLM IS CONTRAVENING THE APPLICABLE RMPs, FLPMA, THE

WHA, NEPA, AND THE APA.

It is indisputable that, as a result of BLMs 2014 roundup and the new

statutory interpretation upon which it was premised, BLM is now managing the

Adobe Town, Salt Wells Creek, and Great Divide Basin HMAsfar below the

AMLs that BLM itself previously established in the curr entl y operative2008

Rawlins RMP and 1997 Green River RMP. See supra at 9-10. Indeed, although the

combined AML of these HMAs requires that BLM manage at least1,276 wild



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horses at all times, only 649 wild horses remain in these HMAs as a result of

BLMs recent actions. See supra at 21. Thus, by using its roundup decision and

new statutory interpretation to de factomodify these AMLs by significantly

reducing them by more than 600wild horses combined, BLM is flouting its duties

under FLPMA and the WHA that prohibit BLM from modifying AMLs until BLM

has evaluated specific evidence and data as part of an extensive notice-and-

comment decisionmaking process pursuant to FLPMA (and NEPA).8

Ordinarily, an AML can only be modified through a formal amendment or

revision to the RMP,see 43 C.F.R. 1610.55, 1610.56; AR255, but in any

event may notbe modified without an extensive planning process with notice and

public comment, as well as compliance with NEPA, and which provides and [i]n-

depth . . . evaluation of resource monitoring and population inventory data.

AR263;see also AR3349; 43 U.S.C. 1712;In Def. of Animals, 909 F. Supp. 2d at

1192 (AMLs are determined through revisions to the applicable [RMP].).

Here, BLM plowed ahead with its decisionwhich had the practical effect

of reducing these populations far below the express AML requirements of the

operative RMPswithout amending or revising the RMPs, evaluating the

necessary resource monitoring or population inventory data, providing notice and

8BLM made the puzzling assertion that FLPMA does not apply here because

[t]he management direction set forth in the RMPs, including that related to

[AMLs], do not apply toprivatelands, AR3359(emphasis added), whichwillfully ignores that more than a million acres of public lands were also involved.



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comment on the de factoAML reduction, or engaging in a NEPA process

concerning the AML reduction. Nothing in the 2008 Rawlins RMP or the 1997

Green River RMP excuses BLM from these legal obligations when modifying the

operative AML. See AR694. Hence, BLM was required to formally amend these

RMPs when significantly reducing the AMLs, and in the process evaluate the

requisite data necessary to make that determinationjust as BLM and RSGA

assured the Court the agency would do before any AMLs were modified.RSGA

Case, ECF. No. 88 at 7-8; AR470-72. However, because BLM has abandoned its

commitment and has not even attemptedto comply with FLPMAs RMP

amendment proceduresnor even formally acknowledgedthat it has modified the

AMLs as a factual matterBLMs actions cannot be upheld under FLPMA.9

Nor, for that matter, can BLMs roundup and ongoing management of wild

horses in these HMAs at numbers far below the legally operative AMLsraising

serious genetic diversity concerns in the process (only 39 horses in one HMA and

91 horses in another)even remotely comport with the WHAs mandate that [a]l l

management activities shall be at the minimalfeasiblelevel. 16 U.S.C. 1333(a)

(emphases added). Before removing horses to below low AML, BLM was required

9At bare minimum, BLM has failed on this record to supply the reasoned

analysis required to explain the agencys stark departure in this decision from its

own prescribed AMLs or for its failure to adhere to its own operative RMPs, andthe decision therefore fails even under rudimentary administrative law principles.

See State Farm, 463 U.S. at 43, 56-57.



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by this dictate to consider less draconian options that would accord with Section 3

and, in the process, protect wild horses in these HMAs within their AMLs.10

For all of these reasons, BLM is acting arbitrarily and capriciously, and not

in accordance with law. See 5 U.S.C. 706(2).

IV.

BLM IS VIOLATING NEPA IN MYRIAD WAYS.

Mirroring its WHA construction whereby BLM dispensed with its

obligations onpublic land by relying on a provision that is explicitly restricted to

actions onprivate land, BLM jettisoned its duty under NEPA to prepare an EIS or,

at minimum, an EA to analyze the significant environmental effects of

permanently removing 1,263 wild horses from the range (including non-excess

horses frompublic land) on the basis of a categorical exclusion that is limitedon

its faceto avoiding NEPA review only for [r]emoval[s] of wild horses or burros

fromprivatelands at the request of the landowner.AR3360 (emphasis added)

(citing AR3389). The categorical exclusion invoked by BLM to avoid preparing an

EIS or EA does not even purport to coverpermanent wild horse removal from

public land. AR3360. Just as BLM cannot turn a blind eye to its actions onpublic

10To be sure, there are far less drastic alternatives topermanently removing

hundreds of non-excess horses frompublic land under Section 4. For example,BLM couldas it did when previously managing wild horses in the Checkerboard,

including in the 2013 Adobe Town/Salt Wells decisionround up all horses on theCheckerboard pursuant to both Sections 3 and 4, permanently remove only those

horses deemed excess, and return the remaining horses to the public blocks of

land in these HMAs. BLM would have had to confront this reasonable alternative(and others) had it not skirted its duty to conduct NEPA review here.



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lands in administering the WHA, it likewise may not deliberately ignore the effects

of its actions under NEPA simply because BLM opts to combine separate activities

concerning public lands and private lands in the same decisionmaking process.

BLMs roundup decision and ongoing management in the Checkerboard

violateNEPA in various ways. First, BLMs unprecedented invocation of a

categorical exclusion thaton its faceonly applies to removal of wild horses

fromprivateland cannot serve as a lawful basis for escaping NEPA review as to

the portion of BLMs decision that addressespermanent removal of wild horses

frompublic land. See AR3360. Thus, because BLM has attempted to fit a small

square peg into a large round hole in avoiding NEPA review, the Court must reject

BLMs invocation of this categorical exclusion as facially inapplicable. See, e.g.,

Wilderness Watch v. Mainella, 375 F.3d 1075, 1095 (11th Cir. 2004) (rejecting

categorical exclusion for routine and continuing government business because

[o]btaining a large van to accommodate fifteen tourists hardly appears to be a

routine and continuing form of administration and maintenance).11

11In its 2013 Adobe Town/Salt Wells Creek EA, BLM admitted that the

categorical exclusion for private land actions only applied to the portion of BLMsdecision addressing removal of horses from RSGAs private land but that NEPA

required at least an EA with respect to the portion of BLMs decision addressingpermanent wild horse removals frompublic land. See AR642. BLM has not even

attempted to reconcile its admission in 2013 that it was required to prepare an EA

to be in accordance with [NEPA] for the public landportion of that decision, id.,with its failure to take any similar steps to comply with NEPA here.



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Second, even if BLM hadadopted in its Department Manual a categorical

exclusion applying to permanent removals of wild horses from public lands

which it has not,see AR3389it would nevertheless be inapplicable under the

circumstances of BLMs actions in this case. This is because an agency may not

invoke a categorical exclusion where extraordinary circumstances exist and a

normally excluded action may have a significant environmental effect. 40 C.F.R.

1508.4;see alsoUtah Envtl. Cong. v. Bosworth, 443 F.3d 732, 736 (10th Cir.

2006) (explaining that a proposed action is precluded from categorical exclusion

if extraordinary circumstances existand will result in environmental effects).

Here, it is beyond legitimate dispute that thepermanentremoval of 1,263

wild horsesincluding many frompublic landssignificantly impacts the

environment. For example, as BLMs own EA from a functionally identical (albeit

smaller) roundup in 2013 concedes, a roundup of this magnitude inevitably affects

myriad natural resources in these HMAs, including forage, water, vegetation, and

other wildlife requiring analysis in an EA. See AR656-58 (listing various potential

impacts of roundups). These impacts are compounded by the significant effects

that roundups have on federally protected wild horses and their wild horse band

social structures that have developed over years. Similarly concerning is that BLM

has never analyzed the specific (and serious) impact on genetic diversity of

managing wild horses at levels far below the AMLs established in the governing



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RMPsespecially given that two HMAs (39 and 91 horses, respectively) arefar

belowBLMs own threshold of a population size of about 150-200 animals that

is necessary to maintain an acceptable level of genetic diversity. AR267.12

Indeed, this is why BLMs own directives expressly require an EIS or an EA

before the permanent removal of anywild horses from public lands: [a]n

appropriate NEPA analysis and issuance of a decision is required prior to removing

the animals. AR3396;see also AR3399 (BLM shallconduct an appropriate site-

specific analysis of the potential environmental impacts that could result from

implementation of a proposed gather in accordance with [NEPA]).By the same

token, this explains why the agencys longstanding practice has beento invariably

12Although the Court need only resolve whether a categorical exclusion is

appropriate here, and thus need not decide whether the appropriate NEPA vehicle

on remand is an EA or an EIS, Petitioners point out that the same reasons for whyextraordinary circumstances prohibit the use of a categorical exclusion heresupport the conclusion that an EIS is required. Not only is BLMs new WHA

interpretation and first-ever categorical exclusion for the permanent removal ofwild horses from public land certain to set a precedent for BLM management with

significant effects that will carry through to future decisions in these HMAs (and

elsewhere), 40 C.F.R. 1508.27(b)(6), but managing these herds far below AMLalso creates highly uncertain,unknown,and controversialrisks to these

populations genetic viability, 40 C.F.R. 1508.27(b)(4)-(5), and threatens a

violation of Federal . . . law in the WHA and FLPMA, 40 C.F.R. 1508.27(b)(10). This is only underscored by statements from BLMs own officials

indicating that this decision constitutes a fundamental changein how the agency

interprets the WHA and NEPA, AR3341, that managing below AML has not

previously been done in Wyoming,AR3349, and that this sort of change to theAML will require analysis that is typically done in an EIS through the land use

planning processand will . . . be very controversial.Id.(emphasis added).



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prepare at least an EA for allpermanent wild horse roundups on public land. See

e.g. AR642 (admitting that an EA was required to be in accordance with NEPA

for the 2013 Adobe Town/Salt Wells Creek roundup); AR3341 (referring to

BLMs EA analyses for a typical herd management gather);Fund for Animals. v.

BLM, 460 F.3d 13, 16 (D.C. Cir. 2006) (noting that BLM prepares a detailed

gather plan, including an environmental assessment in compliance with [NEPA]

before permanently removing horses from the range).13

Thus, particularly given BLMs own recognition that removing all wild

horses from the checkerboard lands will have some impacts that are typically

explored in our EA analyses for a typical herd management gather for this HMA,

AR3341, BLM acted arbitrarily and capriciously by determining that no

extraordinary circumstances exist that would potentially hav[e] effects that may

significantly affect the environment. AR3364-65. To the contrary, BLMs

precedent-setting decision in which itfor the fi rst timeeverfailed to prepare

even an EA to assess the effects of the permanent removal of wild horses from

public lands, especially where there are serious genetic diversity concerns, must be

invalidated as arbitrary, capricious, and contrary to NEPA as precisely the kind of

uninformed agency actionthat NEPA prohibits. Custer Cnty. Action Assn. v.

13Yet againthis time under NEPABLM departed from its own directives and

prior practice without setting forth any lawful justification, and its actions thereforecannot pass muster under the APA. State Farm,463 U.S. at 56-57.



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Garvey,256 F.3d 1024, 1034 (10th Cir. 2001);Mainella, 375 F.3d at 1095-96

(striking down categorical exclusion because it creates a potential precedent for

future action and. . . threaten[s] to violate the Wilderness Act.).For these

reasons, BLMs actions are also in flagrant violation of NEPA.14

CONCLUSION

Petitioners respectfully request that the Court declare BLM in ongoing

violation of the WHA, NEPA, and FLPMA; set aside BLMs July 2014 DR and

CE; and remand the matter to BLM with instructions to remedy the deficiencies

identified in the Courts ruling and to take no further action inconsistent with that

ruling until legal compliance has been fully achieved.

14Because BLM refused to prepare an EIS or EA (and thus never solicited public

comment on a draft EIS or EA), BLM also violated NEPA by its complete failure

to involve . . . the publicin its decision, and this wholesale neglect . . .undermines the very purpose of NEPA. Citizens for Better Forestry v. U.S. Dept

of Agric., 341 F.3d 961, 970-71 (9th Cir. 2003).



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Respectfully submitted,

__/s/__________________________

William S. Eubanks II (pro hac vice)(D.C. Bar No. 987036)

Caitlin T. Zittkowski (pro hac vice)(CA Bar No. 290108)

MEYER GLITZENSTEIN & CRYSTAL

1601 Connecticut Ave. N.W., Suite 700Washington, D.C. 20009

(202) 588-5206

_/s/___________________________Timothy C. Kingston

(WY Bar No. 6-2720)

LAW OFFICE OF TIM KINGSTON LLC408 West 23rdStreet, Suite 1

Cheyenne, WY 82001-3519(307) 638-8885

Counsel for Petitioners



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CERTIFICATE OF SERVICE

I hereby certify that on December 19, 2014, I electronically filed the

foregoing PETITIONERS OPENING BRIEF and ADDENDUM with the Clerk of

the Court using the CM/ECF system which will send notification of this filing to

all counsel of record.

Respectfully submitted,

/s/ William S. Eubanks II

William S. Eubanks II



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ADDENDUM TABLE OF CONTENTS

Federal Statutes

Administrative Procedure Act...1

Federal Land Policy Management Act......2

National Environmental Policy Act.60

Wild Free-Roaming Horses and Burros Act67

Federal Regulations

BLMs Federal Land Policy Management Act Regulations...75

CEQsNational Environmental Policy Act Regulations.91

BLMs Wild Free-Roaming Horses and Burros Act Regulations.....123



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Administrative Procedure Act

5 U.S.C. 706(2)

To the extent necessary to decision and when presented, the reviewing court shall decide all

relevant questions of law, interpret constitutional and statutory provisions, and determine themeaning or applicability of the terms of an agency action. The reviewing court shall

(1) compel agency action unlawfully withheld or unreasonably delayed; and

(2) hold unlawful and set aside agency action, findings, and conclusions found to be

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or short of

statutory right;

(D) without observance of procedure required by law;

(E) unsupported by substantial evidence in a case subject to sections556and557

of this title or otherwise reviewed on the record of an agency hearing providedby statute; or

(F) unwarranted by the facts to the extent that the facts are subject to trial de novo

by the reviewing court.

In making the foregoing determinations, the court shall review the whole record or those parts of

it cited by a party, and due account shall be taken of the rule of prejudicial error.

ADD 1

http://www.law.cornell.edu/uscode/text/5/556http://www.law.cornell.edu/uscode/text/5/556http://www.law.cornell.edu/uscode/text/5/556http://www.law.cornell.edu/uscode/text/5/557http://www.law.cornell.edu/uscode/text/5/557http://www.law.cornell.edu/uscode/text/5/557http://www.law.cornell.edu/uscode/text/5/557http://www.law.cornell.edu/uscode/text/5/556


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TITLE I

SHORT TITLE,

DECLARATION OF POLICY, AND

DEFINITIONS

SHORT TITLE

Sec. 101. [43 U.S.C. 1701 note] This Act may be cited

as the Federal Land Policy and Management Act

of 1976.

DECLARATION OF POLICY

Sec. 102. [43 U.S.C. 1701] (a) The Congress declares

that it is the policy of the United States that

(1) the public lands be retained in Federal own

ership, unless as a result of the land use planning

procedure provided for in this Act, it is determined

that disposal of a particular parcel will serve the

national interest;

(2) the national interest wil

67 - petitioners' opening brief & addendum.pdf

Documents