74 - petitioners' reply brief.pdf

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UNITED STATES DISTRICT COURTFOR 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 REPLY BRIEF

Timothy Kingston

LAW OFFICE OF TIM KINGSTON,LLC

408 West 23rd Street, Ste. 1

Cheyenne, WY 82001

TEL: (307) 638-8885

FAX: (307) [email protected]

William S. Eubanks II

Caitlin T. Zittkowski

MEYER GLITZENSTEIN &CRYSTAL

1601 Connecticut Ave. NW, Ste. 700

Washington DC, 20009

TEL: (202) 588-5206FAX: (202) 588-5049

[email protected]@meyerglitz.com

Counsel for Petitioners

Case 2:14-cv-00152-NDF Document 74 Filed 02/03/15 Page 1 of 38


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TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

GLOSSARY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

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

I. PETITIONERS CLAIMS ARE NOT MOOT.. . . . . . . . . . . . . . . . . . . . . . . 2

A. This Case Is Not Moot Because Meaningful Relief Remains

Available To Remedy Petitioners Ongoing Injuries Caused

By The 2014 Roundup... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

B. This Case Is Also Justiciable Because The Court Could Order

BLM To Remedy Its Alleged NEPA Violations... . . . . . . . . . . . . . . . 9

C. Even If Relief Were Not Available, This Case Is Not Moot... . . . . . 11

II. RESPONDENTS CANNOT ESCAPE THE CLEAR APPLICATION

OF CHEVRON TO THE PLAIN LANGUAGE OF THE WHA... . . . . . . . 14

A. Petitioners Seek To Harmonize Sections 3 And 4 Of The WHA,

Rather Than Ignore Either Statutory Obligation (As BLM Has).. . . 15

B. Respondents WHA Construction Fails Under Chevron.. . . . . . . . . 18

III. BLMS DE FACTO AML REDUCTION FLOUTS VARIOUS

LAWS... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

IV. BLM'S CATEGORICAL EXCLUSION VIOLATES NEPA.. . . . . . . . . . . 26

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30



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ii

TABLE OF AUTHORITIES

CASES PAGE

Airport Neighbors Alliance v. United States,90 F.3d 426 (10th Cir. 1996) ............................................................................9, 11

Alaska Prof. Hunters v. FAA,177 F.3d 1030 (D.C. Cir. 1999)............................................................................23

Am. Petr. Inst.v. EPA,52 F.3d 1113 (D.C. Cir. 1995)..............................................................................22

Buchheit v. Green,705 F.3d 1157 (10th Cir. 2012) ............................................................................13

Burbank Anti-Noise Group v. Goldschmidt,623 F.2d 115 (9th Cir. 1980) .................................................................................. 9

California v. USDA,575 F.3d 999 (9th Cir. 2009) ................................................................................27

Citizens for Better Forestry v. USDA,

481 F. Supp. 2d 1059 (N.D. Cal. 2007) ................................................................28

Coal Co. v. Fed. Mine Safety & Health Rev. Comm's,642 F.3d 234 (D.C. Cir. 2011)..............................................................................25

C.W. Mining Co.,641 F.3d 1235 (10th Cir. 2011) .............................................................................. 4

Day v. Bond,500 F.3d 1127 (10th Cir. 2007) .............................................................................. 4

Envtl. Def. Fund v. Marsh,651 F.2d 983 (1981) .............................................................................................30

Ethyl Corp. v. EPA,51 F.3d 1053 (D.C. Cir. 1995)..............................................................................22



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Fowler v. United States,647 F.3d 1232 (10th Cir. 2011) .............................................................................. 3

Garvey v. Freeman,397 F.2d 600 (10th Cir. 1968) ..............................................................................21

Grand Canyon Trust v. FAA,290 F.3d 339 (D.C. Cir. 2002)..............................................................................29

Green v. Haskell Cnty. Bd. of Comm'rs,568 F.3d 784 (10th Cir. 2009) ..............................................................................12

Halverson v. Slater,

129 F.3d 180 (D.C. Cir. 1997)..............................................................................23

Herriman v. Bell,590 F.3d 1176 (10th Cir. 2010) ..................................................................... 13, 14

High Sierra Hikers Ass'n v. Blackwell,390 F.3d 630 (9th Cir. 2004) ................................................................................28

In Defense of Animals v. Salazar,808 F. Supp. 2d 1254 (E.D. Cal. 2011) .................................................................. 8

In Defense of Animals v. Salazar,648 F.3d 1012 (9th Cir. 2011) ................................................................................ 8

Kardules v. City of Columbus,95 F.3d 1335 (6th Cir. 1996) .................................................................................. 5

Morton v. Mancari,417 U.S. 535 (1974) .............................................................................................24

Nat'l Parks Conservation Ass'n v. FAA,998 F.2d 1523 (10th Cir. 1993) ............................................................................11

Rezaq v. Nalley,677 F.3d 1001 (10th Cir. 2012) .............................................................................. 3



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iv

Sparrow v. IRS,949 F.2d 434 (D.C. Cir. 1991)..............................................................................24

United States v. Price,361 U.S. 304 (1960) .............................................................................................24

Utah Envtl. Cong. v. Russell,518 F.3d 817 (10th Cir. 2008) ................................................................... 9, 10, 27

Watt v. Alaska,451 U.S. 259 (1981) .............................................................................................24

West v. DOT,206 F.3d 920 (9th Cir. 2000) ................................................................................28

Wilderness Watch v. Mainella,375 F.3d 1085 (11th Cir. 2004) ............................................................................27

STATUTES

5 U.S.C. 706 ................................................................................................... 13, 21

16 U.S.C. 1331-1340 ..................................................................................passim

42 U.S.C. 4321-4370h .......................................................................................... 1

43 U.S.C. 1701-1787 ............................................................................................ 1

REGULATIONS

40 C.F.R. 1508.8 ...................................................................................................30

43 C.F.R. 4720.2-1 ......................................................................................... 18, 23



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v

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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INTRODUCTION

In their opening brief, Petitioners explained the myriad ways in which the

Bureau of Land Management (BLM) has violatedand continues to violatethe

Wild Free-Roaming Horses and Burros Act (Wild Horse Act or WHA), 16

U.S.C. 1331-1340, by adopting a countertextual statutory interpretation whereby

BLM is authorized to permanently remove federally protected wild horses from

public land pursuant to Section 4 of the Act, despite the fact that Congress plainly

limited BLMs authority under thatprovision to removing horses from privately

owned land.Id. 1334 (emphasis added). In the process, BLM has also willfully

disregarded the specific legislative dictates that do apply to these public landsi.e.,

the mandatory obligations Congress imposed on BLM in Section 3 of the Act that

serve as legal prerequisites before any wild horses may be removed frompublic

land.Id. 1333(b)(2). Petitioners also explained how BLMs actions violated the

National Environmental Policy Act (NEPA), 42 U.S.C. 4321-4370h, the

Federal Land Policy and Management Act (FLPMA), 43 U.S.C. 1701-1787,

and BLMs own Resource Management Plans (RMPs).

In response, rather than seriously grappling with those issues, BLM has

primarily relied on a jurisdictional defense, which cannot be sustained on these

facts under Supreme Court or Circuit precedent. On the merits, Respondents have,

for the first time, asserted that the WHA is ambiguouswhich is nothing more than



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a transparent attempt to manufacture ambiguity to escape the clarion terms of the

Act in order to serve the agencys own administrative convenienceobjectives. But,

as previously explained, policy considerations have no place in the Chevron

framework, as courts are bound to enforce Congress clear statutory intent.

Accordingly, until BLM seeks and obtains relief from Congress through

legislative amendment, this Court has no choice but to enforce the plain terms of

the WHA, which simply does notauthorize removal of wild horses frompublic

lands under Section 4. See Friends of the Earth v. EPA, 446 F.3d 140, 142 (D.C.

Cir. 2006) (stating that if an agency believes that statutory compliance would lead

to undesirable consequences,then it must. . . take its concerns to Congress).

I. PETITIONERS CLAIMS ARE NOT MOOT.

Petitioners have explained that this case is justiciable because Petitioners

have established standing and this matter presents a live controversy. See ECF No.

67 at 23. Although not joined by the State of Wyoming or the Rock Springs

Grazing Association (RSGA), BLMwhile not disputing Petitionersstanding or

their ongoing injuries-in-fact caused by BLMhas now asserted that this case is

moot. See ECF No. 71 at 17-25. That assertion, however, is predicated on an

erroneous recitation of the proper legal standard and a mistaken application of the

facts to that legal standard. Hence, for the following reasons, this case presents a

live controversy and the Court has jurisdiction to resolve the merits of this dispute.



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A.

This Case Is Not Moot Because Meaningful Relief Remains

Available To Remedy Petitioners Ongoing Injuries Caused By

The 2014 Roundup.

In no uncertain terms, the Supreme Court has explained that a case becomes

moot only when it is impossible for a court to grant any effectual relief whatever to

the prevailing party. Chafin v. Chafin, 133 S. Ct. 1017, 1023 (2013) (emphases

added) (quotation marks and citation omitted). Thus, [a]s long as the parties have

a concrete interest, however small, in the outcome of the litigation, the case is not

mootif any relief whatsoever remains available to redress their alleged injuries.

Id. (emphasis added) (quotation marks and citation omitted).

Despite BLMs unsupported assertion that the mere availability of an

equitable remedy is not the test for [mootness] in this Circuit, ECF No. 71 at 20,

the test employed by the Tenth Circuit is, necessarily, identical to and consistent

with the standard established by the Supreme Court: [a]case is not moot when

there issomepossible remedy, even a partial remedy or one not requested by the

plaintiff. Rezaq v. Nalley, 677 F.3d 1001, 1010 (10th Cir. 2012) (citations and

quotation marks omitted);see alsoFowler v. United States, 647 F.3d 1232, 1242

(10th Cir. 2011) (A case is moot when it is impossiblefor the court togrant any

effectual relief whateverto a prevailing party.) (emphasis added) (quotation marks

and citation omitted). Of course, in determining whether jurisdiction exists, the

Court must presume that Petitioners will prevail on the merits, thereby focusing the



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inquiry on whether the Court could order any relief to Petitionersas the

prevailing partythat would redress their alleged injuries. See, e.g.,Day v. Bond,

500 F.3d 1127, 1137 (10th Cir. 2007) (explaining that we assume, during the

evaluation of the [courts jurisdiction], that the plaintiff will prevail on his merits

argumentthat is, that the defendant has violated the law.).1

Under the prevailing legal test, there can be no legitimate dispute that there

exists at least some possible remedythat the Court could impose on BLM in

order to redress some of Petitioners injuries, should Petitioners prevail on the

merits. For example, Petitioners have provided sworn declarations demonstrating

the myriad cognizable injuries they continue to suffer as a result of BLMs fall

2014 roundup that is challenged in this case. See ECF Nos. 67-1, 67-2, 67-3, 67-4.

These ongoing harms to Petitionerswhich, again, Respondents have not

contested as insufficient to confer standing (nor could they)include, inter alia,

aesthetic and economic injuries due to BLMs management of these HMAs at far

below the legally required AMLs, which significantly impairs Petitioners ability to

view, observe, and photograph these wild horse populations; the aesthetic and

emotional losses related to the removal of specific wild horses to whom Petitioners

1BLMs peculiarand erroneousassertion that the mere availability of an equitable remedy isnot the test for [mootness] in this Circuit, ECF No. 71 at 2, is belied by dozens of Circuit casesmaking clear that the availability of a remedy is, in fact, the touchstone for determining mootness.See, e.g.,In re C.W. Mining Co., 641 F.3d 1235, 1239 (10th Cir. 2011) (explaining that themootness question turns on what relief is availableto [a party] if it were to prevail and thatwhen it is not impossible for the court to grant some measure of effective relief, a case is not

moot) (emphasis added) (quotation marks and citations omitted).



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have longstanding personal and professional relationships; and aesthetic and

pecuniary harms to Petitioners associated with the adverse effects on their ability to

view, photograph, and otherwise observe the now skittish and human-averse wild

horses in these HMAs after BLMs invasiveroundup.Id.

Especially given that the Petition for Review in this case sought extremely

broad injunctivereliefin addition to declaratory reliefthere is certainly no basis

for a mootness finding. See ECF No. 1, Prayer for Relief. To the contrary, among

other available remedies, Petitioners have testified in sworn declarations that the

Court could redress their injuriesat least in partby ordering BLM to return to

these HMAs some of the wild horses that Petitioners assert were unlawfully

removed from public lands without observance of federal law. See ECF No. 67-1

11-12; ECF No. 67-2 14; ECF No. 67-3 9; ECF No. 67-4 11.2

Importantly, BLM has not seriously disputed the availability of such relief; if

anything, BLM has underscored the availability of such relief by conceding that the

wild horses that were removed from these HMAs in fall 2014 remain in BLMs

care in Wyoming and adjacent states. See ECF No. 71 at 21 (citing Foster Decl.

6). Thus, in light of the fact that BLM retains current ownership over the subject

2Because there still remains meaningful injunctive relief available to the Court, the few casescited by BLM finding mootness where the plaintiff alleged only declaratory relief are plainlyinapposite and have no bearing on this matter. See ECF No. 71 at 20;see alsoKardules v. City ofColumbus,95 F.3d 1335, 1343-44 (6th Cir. 1996) (explaining that where declaratory relief is theonly potential remedy, it is often difficult to draw a line between actual controversies andattempts to obtain advisory opinions on the basis of hypothetical controversies).



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horses, the inevitable conclusion under the prevailing legal test is that Petitioners

case is notmoot because it is not impossiblefor [the] court to grant anyeffectual

relief whatever, should Petitioners prevail. Chafin, 133 S. Ct. at 1023.

Rather than dispute the availability of relief should Petitioners prevail, BLM

presents two arguments that are irrelevant to the mootness determination. First,

BLM asserts that returning horses that have been held in captivityback into the

wild poses a number of significant considerations, such that it could be difficult

and potentially unsafe to return these horses to the range. ECF No. 71 at 21.3

Although Petitioners dispute the premise underlying BLMs contention

namely, that it would be potentially unsafe to return wild horses to the range after

only a few months in captivityBLMs argumentconflates the critical difference

between a courts role in determining whether a case is moot (i.e., is anyrelief

available should Petitioners prevail?) with a courts role in determining at the

conclusion of the merits what specific remedy to adopt (i.e., assuming Petitioners

have now prevailed, which of the available remedies should be adopted and subject

to what conditions?). This is precisely why the Court must assume for purposes of

3BLMs assertionthat it could be unsafe to return these horses to the range after only a fewmonths in captivity is entirely fabricated and contradicts BLMs own management practices. Forexample, BLM returned dozens of wild horses to the Saylor Creek HMA in Oregon after morethan one yearin captivity. See BLM, Saylor Creek HMA, available athttp://www.blm.gov/id/st/en/prog/wild_horses_/hmas/saylor_creek_hma.html(stating that the herd was gathered in 2010after another devastating wildfire but 30 horses were returned to the HMA in the early fall of

2011). Likewise, BLMs purported concern about returning (male) geldings to the range cannotserve as a basis for prohibiting the return of maresto the range, and, in any case, disregards thatthe consent decree explicitly contemplates managing geldings in these HMAs. See AR468.

http://www.blm.gov/id/st/%20en/prog/wild_horses_/hmas/saylor_creek_hma.htmlhttp://www.blm.gov/id/st/%20en/prog/wild_horses_/hmas/saylor_creek_hma.htmlhttp://www.blm.gov/id/st/%20en/prog/wild_horses_/hmas/saylor_creek_hma.htmlhttp://www.blm.gov/id/st/%20en/prog/wild_horses_/hmas/saylor_creek_hma.htmlhttp://www.blm.gov/id/st/%20en/prog/wild_horses_/hmas/saylor_creek_hma.htmlhttp://www.blm.gov/id/st/%20en/prog/wild_horses_/hmas/saylor_creek_hma.html


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the mootness determination that Petitioners willprevail,see supra at 3-4, which is

entirely distinct from the Courts merits determination and its adoption of remedies

commensurate to the violations found. Thus, this assertion only becomes relevant at

the remedy stage and is not germane to analyzing mootness.4

Second, BLM asserts that returning any of the wild horses removed in fall

2014 to even the portions of these HMAs that consist of solid blocks ofpublicland

would violate Section 4 of the WHA and the consent decreebecause those horses

will invariably migrate back to RSGAs lands.ECF No. 71 at 21. This is not so.

As a threshold matter, BLM again seeks to inject into the mootnessinquiry a

legal question that can only be answered on the meritsand has nothing to do with

the availabilityof relief. In any case, as explained, managing federally protected

wild horses on solid public land blocks within these HMAs consistent with the

agencysAMLs cannot even remotely constitute a violation of the WHA (or the

consent decree) since there is no legal duty or authority to preemptively avoid the

potential straying of wild horses from public land. See Fallini v. Hodel, 783 F.2d

4If the Court has any questions about the significant considerations that could purportedly flowfrom a Court order requiring BLM to return some horses to the range, those issues could besorted out in briefing on remedy after the Court issues its merits ruling. For example, BLM hascursorily asserted that returning some wild horses to the range would result in increased costs tothe BLM, ECF No. 71 6, which is impossible to reconcile with BLMs own datademonstrating the exorbitant financial cost of managing horses in holding facilities as comparedto managing them within AMLs in the wild. See Exhibit E at 10 (noting that it costs $46,252 perunadopted horse in captivity, meaning that the 627 non-excess horses that BLM removed in fall2014 could cost BLM and taxpayers up to $29,000,000). In any event, the Court could entertainthe relative equities (e.g., costs) of particular forms of relief in post-merits remedy briefing.



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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 notcharge 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 . . . [BLM] must go back again to retrieve the animals,

that is nevertheless [its] duty prescribed by the statute.).

Moreover, BLMs assertion that returning even a single horse to the solid

block ofpublic land in these HMAs would violate Section 4 of the WHA due to

potential straying borders on the nonsensical; if that were true, BLM is currently

violating this provision with respect to the 649 horses that BLM admits it left in

these HMAs after the fall 2014 roundup. See ECF No. 71-1 4. Hence, for several

reasons, BLM has failed to refute the basic fact that at leastsome injunctiverelief is

availableto redress Petitioners injuriesa far different question from whether the

Court will (or should) ultimately adopt such relief in its final order.5

5Tellingly, BLM has raisedand lostthese arguments before. InIn Defense of Animals v. U.S.Department of the Interior, the court explained that the injury is Plaintiffs diminished ability toenjoy wild horses and burros on the [HMA], and [b]ecause the wild horses . . . removed fromthe range have not been returned, this Court finds that Plaintiffs do in fact continue to suffer thelost enjoyment of those animals, which is an ongoing injury. 808 F. Supp. 2d 1254, 1266(E.D. Cal. 2011). BLM asserted that all possible [remedial] options are foreclosed because allgelding operations were completed and because the [WHA] prevents the return of wild horsesto an overpopulated range.Id.Nevertheless, the court held that it could provide effective reliefin the form of relocation of the animals to the [HMA] assuming Plaintiffs win on the merits.Id.BLMs criticism of that ruling as possibly no longer good law is erroneous,see ECF 71 at 22n.4, as the Ninth Circuit did not review the district courts mootness ruling but instead foundmoot a preliminaryinjunction . . . because the roundup sought to be enjoined has taken place.648 F.3d 1012, 1013 (9th Cir. 2011) (emphases added). This distinction is crucial, aspermanent



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B.

This Case Is Also Justiciable Because The Court Could Order

BLM To Remedy Its Alleged NEPA Violations.

Although the availability of relief alone is sufficient to overcome mootness

here, Petitioners also provide another basis upon which the Court could redress

Petitioners injuries in the context of their NEPA claims.

The Tenth Circuit has consistently held that a NEPA case is not rendered

moot simply because the agency has carried out the activity, so long as the court

can providesomeremedy if the plaintiffs prevail on the merits. See, e.g.,Airport

Neighbors Alliance, Inc. v. United States, 90 F.3d 426, 428-29 (10th Cir. 1996)

(explaining that courts still consider NEPA claimsconcerning completed actions

when the court can provide some remedy if it determines that an agency failed to

comply with NEPA, and finding case not moot because if we find that the

Respondents failed to comply with NEPA, we could order that the runway be

closed or impose restrictions on its use); Utah Envtl. Cong. v. Russell, 518 F.3d

817, 824-25 (10th Cir. 2008) (explaining that even where it is too late to . . .

provide a fully satisfactory remedy the availability of a partial remedy will prevent

the case from being moot) (citations omitted);Burbank Anti-Noise Group v.

Goldschmidt,623 F.2d 115, 116 (9th Cir. 1980) (holding action challenging already

completed sale of property not moot when the actions could be undone).

injunctive relief (e.g., returning horses to the wild) may still be available even wherepreliminaryinjunctive relief aimed solely at preserving thestatus quo anteis no longer available.



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This proposition is especially pertinent in this case since Petitioners are

arguing on the merits that BLM avoided its legal duty to prepare anyNEPA review

whatsoeveran Environmental Impact Statement (EIS) or an Environmental

Assessment (EA)and instead took the unprecedented action of invoking a

categorical exclusion that is expressly limited to removal of horses from private

landto remove hundreds of wild horses from publicland. Hence, as noted above,

not only could the Court order BLM to return to the HMAs at least some of the

illegally removed horses if Petitioners prevail, but the Court could also nullify the

precedent set by BLMs decision by ordering BLM to clarify in its relevant NEPA

handbooks and manuals that the categorical exclusion pertaining toprivateland

wild horse removals cannot legally be applied to actions onpublic land.

Alternatively, the Court could impose restrictions on BLMs ongoing

management of the remaining wild horses in these HMAs, including by prohibiting

BLM from removing any horses from the rangeat least on public landuntil the

relevant population numbers are back within the legally required AMLs.

Given the panoply of remedial optionsincluding various management

conditions and restrictionsavailable to the Court to remedy the alleged NEPA

violations, this case is not moot. See, e.g.,Russell, 518 F.3d at 824-25 (finding

plaintiffs NEPA challenge to the invocation of a categorical exclusion not moot

even where the contractor has already completed its one-time magnesium chloride



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application because the agency retains the flexibility to implement the project

design);Natl Parks Conservation Assn v. FAA,998 F.2d 1523, 1525 n.3 (10th

Cir. 1993) (finding case challenging construction project not moot after

construction was completed when restrictions could be placed on the use of the

project);Airport Neighbors Alliance, 90 F.3d at 428-29 (same).

C.

Even If Relief Were Not Available, This Case Is Not Moot.

Because the Court has various forms of relief available to remedy

Petitioners injuries, the Court need not reach the question of whether any mootness

exceptions apply. In any event, Petitioners briefly explain whyif this case were

otherwise moot (which it is not)it would nevertheless be justiciable.

First, despite BLMs unsubstantiated assertions that the agency is unlikely to

authorize any future actions invoking the legal provisions underpinning the

decision challenged in this case,see ECF 71 at 24-25, BLM cannot overcome its

substantial burden of demonstrating that it is impossible,or even unlikely given that

each BLM field office operates independently, for the allegedly unlawful conduct

challenged by Petitioners to recur. As the Supreme Court has explained, [t]he

heavy burden of persua[ding] the court that the challenged conduct cannot

reasonably be expected to start up again lies with the party asserting mootness.

Friends of the Earth v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189 (2000). In

turn, a defendant claiming that its voluntary compliance moots a case bears the



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formidable burden of showing that it is absolutely clearthe allegedly wrongful

behavior could not reasonably be expected to recur.Id. at 190 (emphasis added).

Indeed, BLM can offer the Court no such certainty that the challenged

conduct will not recur, stating that it ispossible a gather may be necessaryin the

Great Divide Basin, Salt Wells Creek, or Adobe Town HMAs; it is likelythat no

gather will be authorized for the White Mountain HMA; and if a gather is

authorized in 2015 . . . [it] maybe very different from the challenged decisions.

ECF No. 71 at 23-25 (emphases added). In light of these equivocal statements from

BLMi.e., the party with the formidable burden of showing that it is absolutely

clear that the challenged conduct will not recurthis case is not moot.6

Second, for the same reasons that BLM cannot fully assure this Court that it

will not engage in the allegedly unlawful conduct with respect to future gathers in

these HMAs, another mootness exception applies because the challenged conduct

would thus be capable of repetition but evading review. As the Tenth Circuit has

explained, this exception applies where (1) the duration of the challenged action

6It is striking that BLM now appears to be backing away from the unprecedented approachchallenged here. BLM suggests that any future roundups in these HMAs would employ differentlegal mechanisms under the [WHA] and NEPA and thus the legal parameters of those decisionsmay look very different than BLMs 2014 decision. ECF 71 at 24 -25. But BLMs positionbefore this Court is that employing those different mechanismsi.e., abiding by Section 3 of theWHA and preparing an EIS or EA under NEPAwould violate Section 4 of the WHA and theconsent decree. This is yet another instance of BLM flip-flopping positions to serve its owninterests before this and other courts,see ECF 67 at 34-35, which only highlights the arbitraryand capricious nature of the decision under review. At any rate, the fact that BLMs future actions

mightpass muster cannot moot this case. Green v. Haskell Cnty. Bd. of Commrs, 568 F.3d 784,795 (10th Cir. 2009) (The possibility that a future monument installed under differentcircumstances might pass constitutional muster does not moot the present case).



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[is] 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.Buchheit v. Green, 705 F.3d 1157, 1160 (10th Cir. 2012)

(citations omitted). Petitioners easily satisfy both prongs of this test.

There is no question that, if the Court found this case moot without resolving

the merits simply because BLM pressed forward with the removal only weeks after

issuing the Decision Record and before the Court could hear this matter on the

merits, Petitioners would forever be relegated to seekingpreliminaryinjunctive

relief immediately upon issuance of BLM decisions but would never have their day

in court for final resolution of the merits based on a full administrative record as

required by the APA. See 5 U.S.C. 706. Simply put, an incomplete and rushed

preliminaryproceeding cannot substitute for a well-considered merits proceeding.

As such, especially under the highly truncated time frame during which the

preliminary injunction proceedings unfolded in this case, the duration of the

challenged action [is] too short to befully litigatedprior to its cessation or

expiration. Green, 705 F.3d at 1160;see alsoHerriman v. Bell, 590 F.3d 1176,

1181-82 (10th Cir. 2010) (applying mootness exceptionbecause full litigation on

the meritswas simply not possible before the election) (emphasis added).

As to the second prong, Petitioners again point to BLMs own equivocal

statements evincing that there is a reasonable expectation that Petitioners may be



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subjected to the same action again since BLM cannot rule out that it would act

under the same authorities by which the agency now asserts it is bound.Id.This

point is especially salient given that BLM has various contractual obligations under

the consent decree, which by its own terms does not terminate until February 2023.

See AR472. Under these facts, there is a reasonable, and indeed likely, expectation

that these issues will once again come to a head and that BLM, left to its own

devices, will resort to the spurious conduct it is defending in this suit. SeeBell, 590

F.3d at 1181-82 (applying mootness exception where defendants were uncertain as

to future plans but were considering acting adverse to plaintiffs interests).

For these reasons, BLM has not proffered any legitimate basis for a mootness

finding. Therefore, the Court should proceed to resolution of the merits.

II. RESPONDENTS CANNOT ESCAPE THE CLEAR APPLICATION

OF CHEVRON TO THE PLAIN LANGUAGE OF THE WHA.

In their opening brief, Petitioners presented compelling reasons why Chevron

Step 1 governs the Courts WHA analysis because Congress clearly delineated

BLMs authority with respect to all wild horses on public land (Section 3) and to

all horses found on private land (Section 4), particularly where Congress set forth

no specific exception in Section 3 related to BLMsmanagement of the Wyoming

Checkerboard. See ECF No. 67 at 24-31. Alternatively, Petitioners explained why

BLMs interpretation could not besustained under Chevron Step 2 for violating



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several canons of statutory construction and running afoul of BLMs own past

interpretations and guiding policies.Id.at 33-37.

In response, BLM and its co-respondents have, for the first time, asserted

that the WHA is ambiguous, in a thinly veiled attempt to escape the application of

Chevron Step 1 where no such ambiguity exists. Just as troubling is Respondents

creation of a straw man, in which Respondents have severely mischaracterized

Petitioners legal position,presumably to deflect the Courts attention from the

crystal clear statutory language that controls here. Thus, before returning to

Respondents merits defenses, it is necessary to dispel a diversionary argument that

should play no role in the Courts resolution of this case.

A. Petitioners Seek To Harmonize Sections 3 And 4 Of The WHA,

Rather Than Ignore Either Statutory Obligation (As BLM Has).

Apparently recognizing the inability of BLMs decision to withstand

Chevronscrutiny, Respondents have taken aim at an argument that Petitioners

simply have not made. In short, Respondents have concocted a legal fictioni.e.,

that Petitioners seek to have BLM comply with Section 3 of the WHA, to the

exclusion of Section 4, when removing horses from the combined public and private

lands of the Checkerboard. See ECF No. 71 at 26 (asserting that Petitioners are

asking BLM to abdicate its Section 4 obligations); id.at 31 (Petitioners ask[]

this Court to ignore Section 4);id. at 30 (Congress did not intend[] Section 3 to

trump Section 4); ECF No. 70 at 16 (Petitioners seek to strip RSGA of its WHA



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remedies); ECF No. 69 at 19 (Petitioners seek to apply the provisions in Section

3 without regard to Section 4s ministerialdirection); ECF No. 69 at 43

(Petitioners seek to nullify BLMs duties under Section 4 of the WHA).

In reality, Petitioners position could not be farther from Respondents

mischaracterization. Rather than arguing that Section 3 of the WHA trumps Section

4, or that BLM should act in a way that ignores, nullifies, or abdicates its Section 4

duties, Petitioners have advanced the commonsense position that BLM must

comply with its mandatory duties under both Sections 3 and 4 if the agency opts to

combine in a single decisionmaking process the removal of wild horses from public

land as well as from private land. Otherwise, BLM is shirking either its Section 3

duties on public land or its Section 4 duties on private land.7

Therefore, Petitioners have no qualms with BLM complying with Section 4

by arrang[ing] to have the animals removed from private land if specific horses

stray from public lands onto privately owned land. 16 U.S.C. 1334. However,

should BLM wish to remove wild horses frompubliclandwhether independently

7Nothing compelsBLM to combine these two separate actions into a single decisionmakingprocess. This is significant because if BLM sought only to remove wild horses frompublic landsin these HMAs, the agency would necessarily have to comply with Section 3. See ECF 71 at 26(conceding that it is true that Section 4 does not govern public lands). Thus, it cannot be the

case that merely because BLM optedfor its own convenienceto combine an action on publicland requiring Section 3 compliance with a separate action on private land requiring Section 4compliance, that in the process the Section 3 obligations that otherwise existed were eviscerated.



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or in conjunction with a Section 4 private land removalBLM has no choice but to

abide by the mandatory legal prerequisites Congress imposed in Section 3.8

Importantly, Petitioners are the onlyparty whose position allows for

compliance with both Sections 3 and 4 of the WHA, as Respondents are defending

BLMs 2014 decision in which the agency completely neglected its Section 3

obligations in favor of Section 4. That Petitioners have presented the only viable

path forward that harmonizes, rather than jettisons, one of these statutory provisions

is hardly surprising, given that it is the same longstanding position held by BLM

itself until its about-face herea position the agency adhered to in authorizing

many combined wild horse removals from the Checkerboards public and private

lands, including as recently as 2013. See, e.g., AR636, AR645.

Accordingly, although Respondents have seriously distorted Petitioners

position in order to present the Court with a false dichotomy (i.e., BLM can comply

8RSGA asserts that Section 3 compliance force[s]the landowners to maintain wild horseswithout consent.ECF No. 69 at 19. To the contrary, Petitioners position is that BLM canas ithas for decades, e.g., AR645round up all of the wild horses on the combined public/privatelands of the Checkerboard pursuant to Sections 3 and4, and return to the large solidpublic landblock (i.e., non-Checkerboard land) only those horses deemed non-excess. As was the case inpast gathers in which BLM employed this joint Section 3/Section 4 tactic,see AR645, acting inthis manner would adhere to Section 4 by removing allhorses from all RSGA private lands, andit would also adhere to Section 3 by ensuring that only excess horses are removed from the rangeand that all AMLs are complied with. Thus, plainly, Petitioners (and formerly BLMs) approach

would certainly not force[] the landowners to maintain wild horses without consent, ECF No.69 at 19, but instead would respond in precisely the manner Congress envisioned in Section 4 byremoving all horses from RSGAs land upon written request. The fact that some horses may, at

some future time, stray from the solid public land block is irrelevant, as Section 4 does notauthorize removal of wild horses from public land to prevent straying that may occur at someindeterminate time in the future. See ECF No. 67 at 28 (citing cases).



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with eitherSection 3 orSection 4), Petitioners position is that there is no such

mutual exclusivitywhich is only reinforced by Congress unequivocal mandate

that BLM comply with bothprovisions if and when they are triggered. See Friends

of the Earth, 446 F.3d at 145 (holding that where a statute presents two standards

for compliance, [t]he existence of two conditions does not authorize [the agency]

to disregard one of them).9

B.

RespondentsWHA Construction Fails Under Chevron.

As explained, this case presents a straightforward ChevronStep 1 inquiry

because Congress spoke in clarion terms in the WHA. As Respondents candidly

admit, there is nothing ambiguous about the Act: Section 3 directs allBLM actions

related to wild horses onpublicland, while Section 4 governs allBLM actions on

privateland. See ECF No. 71 at 26 (Section 4 does not govern public lands and

Section 3 does not govern private lands.); ECF No. 70 at 15 (Read together,

Sections 3 and 4 cover the universe of scenarios.). Congress imposed these

provisions as absolute mandates without exception, despite Congress awareness of

the unique challenges presented by BLMs management of the Checkerboard.

9Although RSGA repeatedly refers to BLMs Section 4 duty as ministerial, BLM does notshare that view. In fact, while BLM has a duty to arrange to have the animals removed fromprivate land upon request, 16 U.S.C. 1334, BLM has discretion in determining when and howtodo so. See ECF No. 71 at 27 (BLM can exercise discretion as to how and when it removes thesewild horses); 43 C.F.R. 4720.2-1 (BLM shall remove stray wild horses . . . from private landsas soon aspracticable). That BLM retains this discretion only underscores that it is possible forBLM to satisfy both statutory mandates before a combined public/private removal takes place.



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Not only have Respondents failed to seriously explain how this case can

avoid scrutiny under Chevron Step 1, but BLM has also made a number of key

concessions that undercut its primary merits argument that the WHA is ambiguous.

For example, despite the fact that BLMs entire case hinges on the ambiguity of

Section 4 that purportedly affords it discretion to remove horses from public land

under that provision, BLM admits, paradoxically, that it is true that Section 4 does

not governpubliclands. ECF No. 71 at 26(emphases added). Nor, for that matter,

can BLMs merits position be squared with the agencys concession thatBLM may

only remove horses from public lands if those horses are determined to be in

excessthat is, over [AMLs].Id.;see also id. at 2-4 (contrasting Section 3 duties

onpublic land with Section 4 duties onprivate land). These contradictions

highlight the inescapable conclusion that Congress spoke plainly in the WHA, and

the Court and parties are thereforebound by the Acts explicit terms.

This conclusion is only bolstered upon close examination of Respondents

ambiguity argument. As a threshold matter, Petitioners note that BLM did not

assert that the WHA was ambiguous in the decision document challenged in this

case, nor did Respondents assert statutory ambiguity in the district court or

appellate preliminary injunction proceedings. Rather, BLMs stated(albeit facially

erroneous) positionuntil nowhas been that Section 4 is, in fact, clear, and it

grants BLM the authority and discretion to remove wild horses frompublic land



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where it would otherwise be difficult, infeasible, or inconvenient for BLM to

discharge its WHA duties. See, e.g., AR3360 (asserting that it is practicably

infeasible to remove horses only from private lands); ECF No. 30 at 19-21

(arguing that Section 4 clearly affords BLM discretion to act on public lands).

It appears that Respondents change of heart cameonly afterPetitioners

pointed out in their opening brief that policy and practical considerationssuch as

administrative convenienceare legally irrelevant under the Chevronframework.

See ECF No. 67 at 29-31. Now realizing that administrative convenience will not

suffice as a basis for upholding BLMsdecision under Chevron, Respondents have

rapidly shifted to a different tack: asserting, for the first time, that the statute is

ambiguous, thereby affording BLM wide latitude in exercising its discretion to

resolve the situation at hand. See, e.g., ECF No. 71 at 29(It is within this

checkerboard context that there is ambiguity . . . .); id. (asserting that BLM

exercised this discretion to resolve the [WHAs] ambiguity and tension).10

10Respondents refusal to come to grips with plain languageextends past the WHAthey nowpoint to the consent decrees statement that, [p]ursuant to 16 U.S.C. 1334, BLM agrees to

remove all wild horses located onRSGAs private lands, including Wyoming Checkerboardlands, AR467 (emphasis added), to assert that BLM is required to remove all wild horses frompublic Checkerboard lands. See ECF No. 69 at 34 (asserting that BLM agreed to remove all wildhorses from the Checkerboard by RSGAsrequest); ECF No. 71 at 12 (asserting that BLM hadto remove all wild horses from the checkerboard to ensure compliance with the ConsentDecree). But, in light of the comma and the subsequent use of the word including, thisstatement very clearly refers only to RSGAsprivatelands (including RSGAprivatelands foundwithin the Checkerboard). In any case, as the consent decree concedes, BLMs implementation ofthe decree cannotconflict with the WHA, FLPMA, or NEPA. AR474, AR471-72.



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But, despite Respondents efforts to distance themselves fromthe policy

rationale underlying BLMs decision in order to survive Chevron scrutiny,

Respondents have undermined any serious attempt to raise an ambiguity argument

by repeatedly harping on the single consideration underpinning BLMs decision:

administrative convenience. See ECF 71 at 32 (this is a management challenge

presented by the unique pattern of checkerboard land ownership); ECF No. 70 at

13 (asserting that Petitioners are ignoring the realities). As explained, however,

public policy concerns simply cannot trump the plain terms of Section 3 if BLM

desires to remove any wild horses frompublicrather than privatelands. See

ECF No. 67 at 29-31. Thus, the Court must reject this backdoor attempt to

manufacture ambiguity as nothing more than a litigating position designed to mask

the fact that BLMs stated policy consideration (administrative convenience),see

AR3360, cannot pass muster as a basis for bypassing the WHAs plain language.11

11Not only must the Court reject Respondents belated assertion that the WHA is ambiguous onthe grounds that the statutory language could not be any clearer, but it also cannot be sustainedbecause it is a classic post hoc rationalization. See, e.g.,Bowen v. Georgetown Univ. Hosp., 488U.S. 204, 212-13 (1988) (rejecting [d]eference to what appears to be nothing more than anagencys convenient litigating position which is contrary to the narrow view of that provisionadvocated in past casesby the agency);Motor Vehicle Mfrs. Assn v. State Farm Mut. Auto. Ins.Co., 463 U.S. 29, 50 (1983) (explaining that courts may not accept appellate counselspost hocrationalizations for agency action because [i]t is well established that an agencys action mustbe upheld, if at all, on the basis articulated by the agency itself).By the same token, the Courtshould disregard the many citations in RSGAs brief to extra-record declarations, since the APAconfines the Courts review solely to the administrative record. See 5 U.S.C. 706; Garvey v.Freeman, 397 F.2d 600, 610-11 (10th Cir. 1968) (The integrity of the administrative processmust be judged by what took place in the administrative proceedings as reflected on theadministrative record unaided by affidavit proof in the reviewing court.) (citations omitted).



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Moreover, assuming arguendo that Respondents ambiguity defense was

sincere, it would fail to hold water for other reasons. First, Respondents ambiguity

argument is predicated on the specious assertion that, although Congress clearly

prescribed BLMs duties on public land (Section 3) and private land (Section 4),

these provisions are nevertheless unclear because Congress did not speak to the

precise issue of how the Wild Horses Act should be implemented in the

checkerboard. ECF 71 at 28;see also id.at 29 (asserting that the Act does not

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

intertwined as in the Checkerboard). Thus, Respondents argument boils down to

the contention that it can remove wild horses from public land under Section 4

because Congress did not expresslyprohibitBLM from doing so in the WHA.

That reasoning severely misses the mark. As courts have explained:

Implicit in the EPAs argument is the notion that if Congress has not

mentioned public health in [the statute], then Congress is silent orambiguous as to that issue, and the Agency therefore has discretion toregulate on the basis of that issue. This argument, however,misconstrues the Chevron analysis. . . . [W]ere courts to presume adelegation of power absent an express withholding of such power,agencies would enjoy virtually limitless hegemony, a result plainly outof keeping with Chevronand quite likely with the Constitution as well.

Ethyl Corp. v. EPA, 51 F.3d 1053, 1060-61 (D.C. Cir. 1995);see also Am. Petr.

Inst. v. EPA, 52 F.3d 1113, 1120 (D.C. Cir. 1995) (To suggest, however, that

Chevronstep two is implicated any time a statute does not expressly negatethe

existence of a claimed administrative power (i.e. when the statute is not written in



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thou shalt not terms), is both flatly unfaithful to the principles of administrative

law . . . and refuted by precedent. Thus, we will not presume a delegation of power

based solely on the fact that there is not an express withholding of such power.)

(citations omitted);Halverson v. Slater, 129 F.3d 180, 187 (D.C. Cir. 1997) (stating

that the absence of an express proscription [in the statute] provides no green light

to ignore the proscription necessarily implied by the limiting language of [the

statute]). Accordingly, this argument must be rejected.

Second, Respondents newly minted ambiguity argument ignores the

inconsistency it creates with BLMs longstanding regulation formally interpreting

Section 4. In 1980, pursuant to its authority in the WHA, BLM promulgated notice-

and-comment regulations to implement the Act. For thirty-five years, the pertinent

regulation implementing Section 4 has stated that [u]pon written request BLM

shall remove stray wild horses and burrosfrom privatelandsas soon as

practicable. 43 C.F.R. 4720.2-1 (emphasis added). Hence, as BLMs formal

construction of Section 4 makes clearvia a regulation that continues to bind

BLMs actionsthat statutory provision has never conferred any authority to BLM

to remove any wild horses frompublic land to preemptively prevent potential

straying in the future or for any other reason. See ECF No. 67 at 28.12

12BLMs regulation limiting Section 4 removals of wild horses to private landsis not onlyproblematic for the agency under Chevron, but it also means that BLMs newandfundamentally differentconstruction of Section 4 is tantamount to an unlawful regulatorymodification without first engaging in formal notice-and-comment rulemaking. See, e.g.,Alaska



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Third, as noted, Petitioners present the Court with the only approach which

allows compliance with bothstatutory mandates. See supra at 17-18. This point is

crucial, as basic canons of statutory construction require courts to reject

interpretations (such as Respondents WHA construction) that would nullify one

provision, where alternative constructions can effectuate both provisions. See Watt

v. Alaska, 451 U.S. 259, 266-67 (1981) (courts must adopt statutory interpretations

that give effect to each [provision] if we can do so while preserving their sense

and purpose);Morton v. Mancari, 417 U.S. 535, 551 (1974) (When two statutes

are capable of co-existence, it is the duty of the courts, absent a clearly expressed

congressional intention to the contrary, to regard each as effective.).13

For all of these reasons, under Chevron Step 1 this Court must give effect to

Congressunambiguously expressed intent in Section 3 and invalidate BLMs

Prof. HuntersAssnv. FAA, 177 F.3d 1030, 1034 (D.C. Cir. 1999) (explaining that an agencyhas less leeway in its choice of the method of changing its interpretation of its regulations than inaltering its construction of a statute, and thus [w]hen an agency has given its regulation adefinitive interpretation, and later significantly revises that interpretation, the agency has in effectamended its rule, something it may not accomplish without notice and comment).

13Amicicuriae asserton the basis of a legislative amendment that never passedthat Congressclearly intended to grant BLM authority under Section 4 to remove wild horses from public land.See ECF No. 72-1 at 15-17. None of the Respondents (including BLM) join this argument, andfor good reason. Not only is the legislative history unclear as to whythis amendment never madeit out of committee, but it also ignores that the proposal was never vetted by the full Congress(thus defeating any notion of Congressional acquiescence). In any event, courts have explainedthat it would be folly to divine legislative intent from Congress inactionto adopt a specificamendment, especially whereas hereit hasadopted statutory language that is plain on itsface. See, e.g., United States v. Price, 361 U.S. 304, 310-11 (1960) (finding that non-action byCongress affords the most dubious foundation for drawing positive inferences, where Congress

did not adopt an express repudiation of [twoNinth Circuit] decisions when amending a law);Sparrow v. IRS, 949 F.2d 434, 439 (D.C. Cir. 1991) (Inferring congressional intent from the

failure to enact a legislative proposal is frequently a risky enterprise.) (citation omitted).



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overreach of its Section 4 authority. See Perf. Coal Co. v. Fed. Mine Safety &

Health Rev. Commn, 642 F.3d 234, 239 (D.C. Cir. 2011) (under Chevron, there is

no reason to manufacture ambiguity when . . . the legislativeprose is pellucid).14

III. BLMS DE FACTO AML REDUCTIONFLOUTS VARIOUS LAWS.

As Petitioners explained in their opening briefand Respondents have not

disputedBLMs fall 2014 removal reduced the combined wild horse population

in these HMAs to 649 horses, which is 627 horses (49%) fewer than BLM must

maintain at all times under the WHA, FLPMA, and the agencys own RMPs.

Respondents cursory rejoinders all simply reiterate the same (erroneous)

legal argument made in the WHA contexti.e., because BLM pursued this action

solely under Section 4, BLM may run roughshod over any and all Congressional

mandates that would otherwise apply to these federally protected wild horses on

public land. See ECF No. 71 at 43-44; ECF No. 70 at 25-26; ECF No. 69 at 41-43.

For the same reasons that BLM is not legally authorized to remove wild

horses from public land under Section 4 of the WHA,see supra at 18-25, BLM

cannot contravene its own AMLs and the laws upon which they are predicated

simply because BLM erroneously invoked Section 4 for this removal. There are

also independent reasons for overturning BLMs decision on this basis, including

because the only circumstance in which BLM may be justified in reducing a wild

14Although Respondents have set forth no basis for reaching Step 2 of the Chevron framework,Respondents WHA construction would nevertheless fail to pass muster under that standard forthe reasons presented in Petitioners opening brief. See ECF 67 at 31-37.



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horse population below the governing AML is where there exists a bona fide

emergency situation[] based on limited forage, water, . . . [or] other limiting

factors that threaten[] the health and welfare of a wild horse . . . population.

AR3997. That certainly was not the basis for BLMs fall 2014 removal, and thus

BLM was required to abide by the typical rule that [w]ild horses . . . should

generally not be removed below the AML lower limit. AR3996 (emphasis added).

Accordingly, BLMs AML reduction cannot be squared with FLPMA, the

WHA, the governing RMPs, or BLMs own manual that implements those laws.

IV. BLMS CATEGORICAL EXCLUSION VIOLATES NEPA.

Petitioners have explained the many ways in which BLMs unprecedented

and controversial decision to invoke a categorical exclusionwhich on its face is

expressly limited in its application toprivate landfor the removal of hundreds of

wild horses frompublic land violates NEPA. See ECF No. 67 at 40-45.

In defense, Respondents again primarily hide behind their faulty WHA

argument, making the unsupported leap in logic that so long as BLM invokes only

Section 4 for a removal action (even if unlawfully), that allows BLM to twist the

plain terms of theprivate land categorical exclusion to fit the portion of this action

that indisputably occurred onpublic land. See ECF No. 71 at 34-43. Respondents

contentioni.e., [i]f the removal decision is authorized by Section 4, then the

action is eligible for a categorical exclusion, ECF 70 at 27borders on the



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more than 600 wild horses from public land, as BLM is required to do by its own

wild horse handbooks for allpublic land removals. See ECF No. 67 at 42-44.

The best defenses that Respondents could muster are that BLMs team of

eleven specialists determined that no extraordinary circumstances exist requiring

an EA, Petitioners did not submit evidence of any effects to BLM, and the removal

will have positive environmental impacts. These responses are easily dismissed.

First, an extraordinary circumstances determination is irrelevant if the

chosen categorical exclusion does not fit the action, as is the case here. Second, the

fact that BLM felt compelled to rely on eleven specialists highlights precisely why

the complex environmental impacts here require more extensive analysis. Third, in

any event, contrary to BLMs assertion,see ECF No. 71 at 38, BLMsfinding that

normal NEPA procedures are inapplicable is not subject to deference. See Grand

Canyon Trust v. FAA, 290 F.3d 339, 342 (D.C. Cir. 2002) ([T]he court owes no

deference to the FAAs interpretation of NEPA . . . because NEPA is addressed to

all federal agencies.); Cit. Against Rails-to-Trails v. STB, 267 F.3d 1144, 1150-51

(D.C. Cir. 2001) (holding that a determination that NEPA is inapplicable . . . is not

entitled to [] deferenceand is a question of law, subject to de novo review).

Fourth, BLM accuses Petitioners of not bringing issues before the agency

via the public comment period, ECF No. 71 at 40, which is puzzling given that

Petitioners did submit scoping comments, butBLMrefused to issue a draft EA or



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EIS upon which Petitioners certainly would have commented on a concrete

proposal. Fifth, RSGAs ebullient praise for what it views as the dramatic positive

impacts resulting from BLMs action,see ECF No. 69 at 37-38 ([r]ange resources

will benefit immediately and vegetation [will] recover), further emphasizes that

some analysisin either an EA or EISis required here, regardless of whether

these profound impacts are labeled as adverse or beneficial. See Envtl. Def. Fund v.

Marsh, 651 F.2d 983, 993 (5th Cir. 1981) (NEPA is concerned with all significant

environmental effects, not merely adverse ones, meaning that a beneficial impact

must nevertheless be discussed in an EIS, so long as it is significant); 40 C.F.R.

1508.8 (defining effects under NEPA to include beneficial effects).

Finally, it is quite telling that BLM has not even responded to Petitioners

argument that BLM cannot meet its extraordinary circumstances burden when

BLMs ownofficial has admittedthat this action is a precedent-setting and

fundamental change in approach,AR3341 and is very controversial, AR3349,

on top of the serious genetic diversity concerns raised by BLMs action. For all of

these reasons, this Court should overturn BLMs decisionas violative of NEPA.

CONCLUSION

Petitioners respectfully request that the Court declare BLM in ongoing

violation of the WHA, NEPA, and FLPMA, and order supplemental briefing on

remedy to determine which specific forms of relief are necessary and appropriate.



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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 & CRYSTAL1601 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 1Cheyenne, WY 82001-3519(307) 638-8885

Counsel for Petitioners



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CERTIFICATE OF SERVICE

I hereby certify that on February 3, 2015, I electronically filed the foregoing

PETITIONERSREPLY BRIEF 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 IIWilliam S. Eubanks II


74 - petitioners' reply brief.pdf

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