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Case No. 15-8033

________________

IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

________________

AMERICAN WILD HORSE PRESERVATION CAMPAIGN, et al.,

Petitioners-Appellants,

v.

SALLY JEWELL, et al.,

Respondents-Appellees,

STATE OF WYOMING & ROCK SPRINGS GRAZING ASSOCIATION,

Intervenor-Appellees.

________________

On Appeal from the U.S. Court for the District of Wyoming

Case No. 14-CV-152-NDF

Judge Nancy Freudenthal

________________

BRIEF OF AMICI CURIAE

NATURAL RESOURCES AND ADMINISTRATIVE LAW PROFESSORS

IN SUPPORT OF PETITIONERS-APPELLANTS

Daniel H. Lutz

Hope M. Babcock

INSTITUTE FOR PUBLIC REPRESENTATION

Georgetown University Law Center

600 New Jersey Avenue NW, Suite 312Washington, DC 20001

Tel: (202) 662-9535

Fax: (202) 662-9634

[email protected]

Counsel for Amici Curiae Law Professors

Appellate Case: 15-8033 Document: 01019530867 Date Filed: 11/27/2015 Page: 1



ii

TABLE OF CONTENTS

TABLE OFAUTHORITIES......................................................................... iii

IDENTITIES AND INTERESTS OF THE AMICI....................................... 1

SUMMARY OF THE ARGUMENT............................................................. 2

ARGUMENT ................................................................................................. 4

I. BLM’s 2014 Decision to Remove Wild Horses from Both

Public and Private Checkerboard Land without Following

the Procedures in Section 3 of the WHA Violates the

Plain Meaning of the Statute...................................................... 4

a. The plain language of the WHA unambiguously

requires BLM to follow procedures under Section 3

when removing wild horses from the Checkerboard............ 4

b. Upholding BLM’s 2014 decision violates established

canons of statutory construction. ........................................ 10

II. Even if the Act is Ambiguous with Respect to the

Checkerboard, the Court Should Not Defer to BLM............... 20

a. BLM’s interpretation does not deserve Chevron

deference............................................................................. 20

b. BLM’s interpretation does not deserve

Skidmore deference............................................................. 23

CONCLUSION ............................................................................................ 26

ADDENDUM............................................................................................... 27

CERTIFICATE OF COMPLIANCE ........................................................... 28




iii

TABLE OF AUTHORITIES

Cases

Anderson v. Yungkau, 329 U.S. 482 (1947) ......................................................11, 12

Apex Hosiery Co. v. Leader, 310 U.S. 469 (1940)..................................................18

Cabell v. Markham, 148 F.2d 737 (2d Cir. 1945) ...................................................10

Carpio v. Holder, 592 F.3d 1091 (10th Cir. 2010)..................................................23

Catskill Mountains Chapter of Trout Unlimited v. EPA,

8 F. Supp. 3d 500 (S.D.N.Y. 2014)......................................................................21

Cloud Found. v. BLM , 802 F. Supp. 2d 1192 (D. Nev. 2011) ................................17

Colo. Wild Horse & Burro Coal. v. Salazar,639 F. Supp. 2d 87 (D.D.C. 2009) .....................................................................5, 6

Conn. Nat’l Bank v. Germain, 503 U.S. 249 (1992) ...............................................15

Elwell v. Okla. ex rel. Bd. of Regents of Univ. of Okla.,

693 F.3d 1303 (10th Cir. 2012)..................................................................7, 14, 15

Fallini v. Hodel, 783 F.2d 1343 (9th Cir. 1986)........................................7, 9, 14, 19

FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000).......................15

Friends of the Earth v. EPA, 446 F.3d 140 (D.C. Cir. 2006)..................................15

Hydro Res., Inc. v. EPA, 608 F.3d 1131 (10th Cir. 2010) (en banc)...........23, 24, 26

Impact Energy Res., LLC v. Salazar,

693 F.3d 1239 (10th Cir. 2012)......................................................................16, 18

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

909 F. Supp. 2d 1178 (E.D. Cal. 2012)................................................................17

In re Dulaney, 285 B.R. 10 (D. Colo. 2002) ...........................................................11

In re Wise, 346 F.3d 1239 (10th Cir. 2003)...............................................................4

Jewell v. United States, 749 F.3d 1295 (10th Cir. 2014)...................................11, 12

Kelley v. City of Albuquerque, 542 F.3d 802 (10th Cir. 2008)................................13

King v. Burwell, 135 S. Ct. 2480 (2015) ...................................................................4

Kleppe v. New Mexico, 426 U.S. 529 (1976) ..........................................................18

Leyse v. Clear Channel Broad., 697 F.3d 360 (6th Cir. 2012) ...............................22




iv

McGraw v. Barnhart , 450 F.3d 492 (10th Cir. 2006) .......................................23, 24

Michigan v. EPA, 135 S. Ct. 2699 (2015) ...............................................................16

Mission Group of Kan. v. Riley, 146 F.3d 775 (10th Cir. 1998) .................21, 22, 23

Morton v. Mancari, 417 U.S. 535 (1974)................................................................16 Mountain States Legal Found. v. Hodel,

799 F.2d 1423 (10th Cir. 1986) (en banc)............................................................18

N.M. Cattle Growers Ass’n v. U.S. Fish & Wildlife Serv.,

248 F.3d 1277 (10th Cir. 2001)..............................................................................4

Public Citizen v. U.S. Dep’t of Justice, 491 U.S. 440 (1989)..................................10

RadLAX Gateway Hotel, LLC v. Amalgamated Bank ,

132 S. Ct. 2065 (2012) .........................................................................................14

Reich v. Parker Fire Prot. Dist., 992 F.2d 1023 (10th Cir. 1993) ..........................24

Robinson v. Shell Oil Co., 519 U.S. 337 (1997)........................................................4

S. Utah Wilderness Alliance v. BLM , 425 F.3d 735 (10th Cir. 2005) .....................25

S. Utah Wilderness Alliance v. Office of Surface Mining

Reclamation & Enforcement , 620 F.3d 1227 (10th Cir. 2010)............................21

S. Ute Indian Tribe v. Amoco Prod. Co.,

119 F.3d 816 (10th Cir. 1997)..............................................................................21

Schrock v. Wyeth, 727 F.3d 1273 (10th Cir. 2013) .................................................24

Skidmore v. Swift & Co., 323 U.S. 134 (1944)....................................................3, 23

United States v. Gonzales, 520 U.S. 1 (1997) .........................................................13

United States v. Mead Corp., 533 U.S. 218 (2001).................................3, 21, 22, 23

Whitman v. Am. Trucking Ass’n, 531 U.S. 457 (2001) .....................................14, 15

Young v. United Parcel Serv., Inc., 135 S. Ct. 1338 (2015)....................................25

Statutes 16 U.S.C. § 1331 ...........................................................................................3, 10, 11

16 U.S.C. § 1332 .................................................................................................5, 13

16 U.S.C. § 1333 ...............................................................2, 5, 6, 8, 9, 12, 13, 14, 17

16 U.S.C. § 1334 ...............................................................................................2, 6, 8




v

43 U.S.C. § 1712 .....................................................................................................17

Regulations

43 C.F.R. § 4710.1...................................................................................................1743 C.F.R. § 4710.3-1 ...............................................................................................17

Other Authorities

Appropriate Management Level (AML), BUREAU OF LAND MANAGEMENT,

http://www.blm.gov/nv/st/en/prog/wh_b/appropriate_management.html

(last updated Nov. 3, 2015)....................................................................................6

H.R. 4818, Sec. 142 (Dec. 8, 2004).........................................................................20

Jennifer Robison, Hard work and worries dog a Nevada ranch family,

LAS VEGAS REV.-J., Jun. 15, 2014 .......................................................................19

Jim Robbins, On the Run, CHICAGO TRIBUNE, Mar. 1, 1987 ..................................19

Tim Findley, The Horses of Joe Fallini’s Dreams,

RANGE MAGAZINE, Fall 2010...............................................................................19




1

IDENTITIES AND INTERESTS OF THE AMICI 1

Amici are four professors of natural resources and administrative law.

Amici’s expertise includes scholarship of wildlife and public lands law. Combined,

amici have many decades of experience teaching these topics. Amici have an

interest in ensuring that the Bureau of Land Management follows all required

procedures before removing wild horses from federally-administered public lands.

The list of amici and their school affiliations is located in the Addendum.

Counsel for amici conferred with counsel for Petitioners, Respondents, and

Intervenor-Respondents. No party opposes amici filing this brief.

1 Pursuant to Federal Rule of Appellate Procedure 29(c)(5), no party’s counsel

authored this brief in whole or in part. No party, nor any party’s counsel, nor any

person other than the amici curiae or their counsel contributed money intended to

fund preparing or submitting this brief.




2

SUMMARY OF ARGUMENT

The district court’s approval of the Bureau of Land Management’s (“BLM”)

2014 decision to remove wild horses from both public and private lands on the

Wyoming Checkerboard (the “Checkerboard”) under Section 4 of the Wild Free-

Roaming Horses and Burros Act (“Wild Horses Act” or “WHA”) is in error for

several reasons.2

BLM’s 2014 wild horse removal from Checkerboard lands, without

following procedures required by Section 3 of the WHA, violates the plain

meaning of the statute, which unambiguously requires BLM to manage and protect

wild horses by removing “excess” wild horses from all public land , but only after

following all the procedures required by Section 3. See 16 U.S.C. § 1333. Section

4, in contrast, only provides BLM with a limited authority to remove wild horses

that have strayed onto private land upon receiving written notice from private

landowners. See id . § 1334; 43 C.F.R. § 4720.2-1.

BLM’s 2014 interpretation of the WHA to authorize the removal of wild

horses from the Checkerboard violates numerous established principles of statutory

2 BLM’s 2014 removal decision applied, in particular, to private and public land

within the Great Divide Basin, Adobe Town, and Salt Wells Creek Herd

Management Areas (“HMAs”). The private land within the Checkerboard HMAs is

owned or leased by Intervenor Rock Springs Grazing Association (“RSGA”). See

Pet. App. 175 (2014 Categorical Exclusion).




3

construction. BLM’s interpretation that it can remove horses on public portions of

the Checkerboard violates the purpose of the WHA, which, as expressed by

Congress, is to protect wild horses from capture. See 16 U.S.C. § 1331. Multiple

textual canons of construction show that BLM’s 2014 interpretation of Section 3

and 4 violates the WHA. In addition, the agency’s use of its authority under

Section 4 to permanently remove wild horses from the Checkerboard ignores the

regulatory regime that Congress established—through both the WHA and the

Federal Land Policy and Management Act (“FLPMA”)—for the management of

wild horses on public lands.

Even if the WHA is ambiguous with respect to Checkerboard land, the Court

should not defer to BLM’s 2014 interpretation. BLM’s decision to remove horses

without complying with Section 3 did not follow from meaningful opportunity for

notice and comment, and, thus, was not a proper exercise of agency policymaking

authority. The agency decision does not have the force of law; Chevron deference

is unavailable. See United States v. Mead Corp., 533 U.S. 218, 226-27 (2001).

Moreover, BLM’s 2014 decision also does not have the “power to persuade,” see

Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944), because the agency’s

interpretation was inconsistent with its prior decisions, and BLM only presented its

new view of the WHA in one sentence, devoid of thorough consideration.




4

This court should reverse the district court and declare BLM’s 2014 decision

as not in accordance with the WHA.

ARGUMENT

I. BLM’s 2014 Decision to Remove Wild Horses from Both Public and

Private Checkerboard Land without Following the Procedures in

Section 3 of the WHA Violates the Plain Meaning of the Statute.

a. The plain language of the WHA unambiguously requires BLM to

follow procedures under Section 3 when removing wild horses

from the Checkerboard.

If the language of a statute is plain, a court must enforce that language

according to its terms. See King v. Burwell, 135 S. Ct. 2480, 2489 (2015); see also

N.M. Cattle Growers Ass’n v. U.S. Fish & Wildlife Serv., 248 F.3d 1277, 1281-82

(10th Cir. 2001) (starting with the plain language of the statute because the court

must “assume that Congress’s intent is expressed correctly in the ordinary meaning

of the words its employs”). The plainness of the WHA’s statutory language is

“determined by reference to the language itself, the specific context in which that

language is used, and the broader context of the statute as a whole.” See In re Wise,

346 F.3d 1239, 1241 (10th Cir. 2003) (citing Robinson v. Shell Oil Co., 519 U.S.

337, 341 (1997)). Applying this methodology, the WHA clearly and

unambiguously requires BLM to follow the procedures under both Sections 3 and

4 when removing wild horses from the Wyoming Checkerboard.




5

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

wild horses by removing “excess” wild horses from public lands.

Under Section 3 of the WHA, BLM has jurisdiction over all wild horses and

burros, as the provision directs the agency to protect them as components of public

lands. See 16 U.S.C. § 1333(a); see also Colo. Wild Horse & Burro Coal. v.

Salazar, 639 F. Supp. 2d 87, 95-96 (D.D.C. 2009) (“Congress clearly intended to

protect non-excess wild free-roaming horses.”). The WHA defines “public lands”

as “any lands administered by the Secretary of the Interior through the Bureau of

Land Management or by the Secretary of Agriculture through the Forest Service;”

the statute does not provide any exceptions for different sized areas of “public

land.” 16 U.S.C. § 1332(e). If wild horses are within a “herd management area”

that contains public land, then Section 3 applies.3

Thus, when BLM decides to remove wild horses from “public lands,” the

agency must follow the procedures of Section 3. After first maintaining and

reviewing an inventory of wild horses within the HMA to determine whether

overpopulation exists, id . § 1333(b)(1), BLM must determine whether action is

3 HMAs are established for the maintenance of wild horse and burro herds. When

determining each HMA, BLM considers the appropriate management level for the

herd, the habitat requirements of the animals, and the relationships with other uses

of the public and adjacent private lands. 43 C.F.R. § 4710.3-1.




6

necessary to remove “excess” animals.4 Id . § 1333(b)(2). BLM may not remove

“excess” wild horses to a level below the “appropriate management level”

(“AML”) for each HMA.5 Id . § 1333(b)(1)-(2); see also Colo. Wild Horse & Burro

Coal., 639 F. Supp. 2d at 96 (“BLM's removal authority [under Section 3] is

limited to those wild free-roaming horses and burros that it determines to be

‘excess animals.’”).

ii.

Section 4 provides BLM with limited authority to remove wild

horses that have strayed onto private land.

In contrast to Section 3, Section 4 of the WHA applies solely to removal of

wild horses from “privately owned land.” 16 U.S.C. § 1334. Section 4 does not

give BLM carte blanche to remove horses from private land at any time. Rather, it

limits BLM’s authority to remove wild horses from private land to circumstances

where “the owners of such land . . . inform [BLM]” that a wild horse has strayed

“from public lands onto privately owned land.” Id . Only a “written request from

4 “Excess animals” are wild horses “which must be removed from an area in order

to preserve and maintain a thriving natural ecological balance and multiple-use

relationship in that area.” 16 U.S.C. § 1332(f). Congress aimed to “protect the

natural ecological balance of all wildlife species which inhabit such lands.” Id . §

1333(a). 5 An AML is “the number of wild horses and burros which can graze without

causing damage to the range. AML is based on consideration of wildlife, permitted

livestock, and wild horses and burros in the area.” Appropriate Management Level

(AML), BUREAU OF LAND MANAGEMENT,

http://www.blm.gov/nv/st/en/prog/wh_b/appropriate_management.html (last

updated Nov. 3, 2015).




7

the private landowner” can trigger BLM’s authority to “arrange to have the

animals removed.” 43 C.F.R. § 4720.2-1; 16 U.S.C. § 1334.

BLM’s authority under Section 4 is limited to responding to landowner

requests once a wild horse strays onto private land. According to longstanding

precedent, BLM has no authority under Section 4 to preemptively remove wild

horses from public land “to prevent wild horses from straying.” Fallini v. Hodel,

783 F.2d 1343, 1346 (9th Cir. 1986); see also id . (“Section 4 of the Act clearly

contemplates the possibility that wild horses may stray onto private lands. The

legislative history of the Act indicates that Congress was aware of this possibility.

Congress declined to authorize the BLM to fence the wild horses or to use

intensive management techniques.”).

iii. The WHA unambiguously requires that BLM manage wild horses

on Checkerboard lands pursuant to both Section 3 and Section 4.

The WHA’s plain meaning, when viewed with an “eye [to] the whole

statutory field,” unambiguously provides that Sections 3 and 4 each offer a

separate management mandate on the Checkerboard. See Elwell v. Okla. ex rel. Bd.

of Regents of Univ. of Okla., 693 F.3d 1303, 1309 (10th Cir. 2012). In Elwell, this

Court determined that an employee could not assert an employment discrimination

claim against a university under Title II of the Americans with Disabilities Act,

because a reading of the entire statute showed that Congress specifically created




8

Title I to deal with such claims. Id. The Court held that “each title does important

and independent work – work that would be diminished, duplicated, even rendered

superfluous were we to read Title II as covering employment discrimination.” Id .

Similarly, read in the context of the entire WHA, Section 3 governs BLM’s

actions regarding wild horses on public land, while Section 4 governs BLM

removal of wild horses from private land. The Checkerboard’s alternating public

and private land blocks mean that both Sections 3 and 4 apply to removals on the

Checkerboard. Each provision does independent and complementary work: BLM

can simultaneously adhere to the requirements of Section 3 by removing only

“excess” horses from public lands—first determining that an overpopulation exists,

then considering whether action is necessary to remove “excess animals,” 16

U.S.C. § 1333(b)(2)—and adhere to Section 4 by removing stray horses from

private land blocks only after receiving notice from landowners, see id . § 1334.

In the past, BLM has followed both statutory sections. See, e.g., Pet. App.

139 (2013 Decision Record). In 2013, BLM rounded up wild horses from the

Adobe Town and Salt Wells HMAs to maintain the population of horses on the

HMAs within the AML. See id . BLM removed all wild horses that had strayed

onto private lands in the Checkerboard within the HMAs. Id . The agency also

removed all wild horses from the public lands on the Checkerboard, and returned

the number of horses necessary to achieve the AML designated by the Green River




9

Resource Management Plan (“RMP”) to the solid public land block in the HMAs

(i.e., the non-Checkerboard portion of the HMAs). Id . BLM’s 2013 action satisfied

Section 4 by removing horses from RSGA private lands after BLM received

notification of strays. Id . The agency also met all Section 3 procedures, including:

determining overpopulation based on current inventories of horses, an

environmental assessment, and applicable land use plans; determining action was

necessary to remove excess animals; and removing excess animals from public

rangeland to achieve the AML. See Pet. App. 139-41. Finally, BLM did not

permanently remove wild horses to leave a population below the AML, because

under the WHA, “[p]revention of straying is subservient to the fundamental goal of

protecting the animals with minimal management effort.” Fallini, 783 F.2d at

1346; see also id. at 1347 (BLM’s duties are “imposed by Congress to benefit the

public by keeping the animals on public lands”).

In short, the plain meaning of the WHA compels a reading that both

Sections 3 and 4 apply to wild horse removals on the Checkerboard, because the

Checkerboard comprises both private and public lands. The only valid reading of

removal actions under the WHA, therefore, requires BLM both to remove all

“excess” horses from the public land portions of the Checkerboard, and to remove

all horses that have strayed onto private land within the Checkerboard upon

receiving notice from the private landowner. See 16 U.S.C. §§ 1333(b), 1334.




10

b. Upholding the agency’s 2014 decision violates established canons

of statutory construction.

Beyond the plain language reading of Sections 3 and 4, multiple principles

of statutory construction—principles ranging from legislative purpose to intrinsic

and extrinsic canons of construction—highlight the errors in BLM’s 2014

interpretation of the WHA.

i. BLM’s 2014 decision contravenes Congressional purpose.

In the interpretation of statutes, “one of the surest indexes of a mature and

developed jurisprudence” is “to remember that statutes always have some purpose

or object to accomplish.” Public Citizen v. U.S. Dep’t of Justice, 491 U.S. 440

(1989) (quoting Cabell v. Markham, 148 F.2d 737, 739 (2d Cir. 1945) (Hand, J.)).

Here, BLM’s decision to permanently remove over 1,200 wild horses from the

Checkerboard to below the AMLs established for the Salt Wells, Great Divide

Basin, and Adobe Town HMAs does not achieve, but rather contravenes, the

purposes Congress sought to serve when it passed the WHA.

Congress enacted the WHA with the purposes of protecting wild horses

from capture, and creating a management scheme that treats wild horses as an

“integral part of the natural system of the public lands.” 16 U.S.C. § 1331.

Moreover, Congress provided BLM with authority to protect and manage these




11

“living symbols of the historic and pioneer spirit of the west” as “components of

the public lands.” Id . § 1331 & 1333(a).

BLM’s 2014 roundup removed wild horses from Checkerboard lands in the

Great Divide Basin, Salt Wells Creek, and Adobe Town HMAs to populations that

are significantly below the AMLs established for each HMA. See Pet.App.188

(2014 Decision Record). BLM’s decision authorizing the capture and permanent

removal of wild horses from the Checkerboard ignores Congress’s intent that

horses be protected as an “integral part of the natural system” where they are

“presently found” on public land. See 16 U.S.C. § 1331.

ii. BLM’s interpretation fails to read the term “shall,” as it appears in

Section 3, as mandatory.

Congress’s use of the term “shall” in Section 3 of the WHA provides

mandatory duties that BLM must comply with when it acts on public land. See

Jewell v. United States, 749 F.3d 1295, 1298 (10th Cir. 2014) (stating the “basic

canon of statutory construction that use of the word ‘shall’ indicates a mandatory

intent”). Furthermore, “[w]hen the same provision uses both ‘may’ and ‘shall’ the

normal inference is that each is used in its usual sense—the one act being

permissive, the other mandatory.” In re Dulaney, 285 B.R. 10, 14 (D. Colo. 2002)

(citing Anderson v. Yungkau, 329 U.S. 482, 485 (1947)). BLM’s 2014 decision to

remove wild horses on the Checkerboard contravenes Section 3’s mandatory

duties.




12

Employing the term “shall,” Section 3 of the WHA imposes numerous duties

that BLM must adhere to in the course of its “protection and preservation” of wild

horses on “specific ranges on public lands.” 16 U.S.C. § 1333(a). First, Section 3

generally states that BLM “shall manage” wild horses in a way that maintains a

thriving ecological balance on public lands. Id . The Section next imposes specific

requirements that BLM must perform in advance of removing wild horses from

public land. The agency: “shall maintain a current inventory” of wild horses;

“shall” use the inventory to determine whether overpopulation exists and whether

to remove wild horses in order to achieve AMLs; and, upon making such

determinations, “shall immediately remove excess animals from the range so as to

achieve [AMLs].” Id . § 1333(b)(1)-(2). In the same subsection, Congress also used

the word “may.” See id . § 1333(b)(2)(B) (“not more than four animals may be

adopted per year by any individual”) (emphasis added).

Because Congress wrote both “shall” and “may” into Section 3, it intended

for the term “shall” to have its usual, mandatory meaning. See Anderson, 329 U.S.

at 485. Yet, in 2014, BLM designed and implemented a management plan to

remove wild horses from all Checkerboard land after no more process than merely

receiving a landowner’s request for removal. See Pet. App. 171 (2014 BLM Letter

to RSGA) (stating that “any changes to AMs or HMA boundaries” are “outside the

scope” of a roundup decision). BLM’s 2014 determination that Section 4, by itself,




13

authorizes wild horse removal on the public lands of the Checkerboard flouts the

agency’s mandatory duties under Section 3. See Jewell , 749 F.3d at 1298.

iii. BLM’s 2014 interpretation misreads Congress’s use of the term

“any” in the definition of “public lands.”

When Congress uses the term “any,” it speaks expansively. See United

States v. Gonzales, 520 U.S. 1, 5 (1997) (rejecting an interpretation of “any other

term of imprisonment” to mean “limited to some subset of prison sentences”

because “any” means “one or some indiscriminately of any kind”); Kelley v. City

of Albuquerque, 542 F.3d 802, 814 (10th Cir. 2008) (holding that “[t]he term ‘any’

carries an expansive meaning when… it is used without limitation.”).

The removal procedures required under Section 3 of the WHA apply to

“public lands.” 16 U.S.C. § 1333. The statute defines public lands as “any lands

administered by the Secretary of the Interior through [BLM].” Id . § 1332(e)

(emphasis added). Read in light of this definition, BLM must protect and preserve

wild horses pursuant to Section 3 on all lands managed by BLM, “indiscriminately

of any kind.” See id . § 1333(a); Gonzales, 520 U.S. at 5. Therefore, the WHA

requires that all federally owned Checkerboard land must be treated as public land

under Section 3, irrespective of its proximity to private land. BLM cannot alter

Congress’s expansive definition of “public lands” to exclude public land

administered by BLM on the Checkerboard.




14

iv. Congress did not authorize BLM to ignore the specific regulatory

regime in Section 3 with any vague and ancillary terms in Section 4.

When two statutory provisions may both apply to an issue, “the canon of

construction dictating that the specific controls the general” helps to avoid “the

superfluity of a specific provision that is swallowed by the general rule.” Elwell ,

693 F.3d at 1310 (quoting RadLAX Gateway Hotel, LLC v. Amalgamated Bank ,

132 S. Ct. 2065, 2071 (2012)). In addition, in the face of a specific regulatory

regime, Congress does not “alter the fundamental details of a regulatory scheme in

vague terms or ancillary provisions—it does not . . . hide elephants in

mouseholes.” Whitman v. Am. Trucking Ass’n, 531 U.S. 457, 468 (2001).

Section 3 applies specifically to “public lands,” and requires that BLM

comply with a prescribed set of procedures to remove wild horses. See generally,

16 U.S.C. § 1333(a)-(b). In contrast, nowhere in Section 4 does Congress authorize

BLM to intrusively manage horses on public land. Id . § 1334 (operating only “[i]f

wild free-roaming horses stray from public lands onto privately owned land”)

(emphasis added). Indeed, as the Ninth Circuit has found, “Congress declined to

authorize the BLM to fence the wild horses or to use intensive management

techniques.” Fallini, 783 F.2d at 1346.

Nonetheless, BLM maintains that Section 4 provides the agency with

authority to permanently remove wild horses from public lands located on the

Checkerboard because they are adjacent to private land. BLM cannot justify its




15

decision not to comply with the specific provisions Section 3 of the WHA by

pointing to the agency’s “ancillary” authority to remove wild horse from private

land under Section 4. See Whitman, 531 U.S. at 468. Congress surely did not

intend to delegate to BLM such broad authority in “so cryptic a fashion.” FDA v.

Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000); see also Elwell ,

693 F.3d at 1310 (rejecting argument that Title II’s general provisions apply to the

same employment discrimination as Title I, because such application would undo

“Title I’s deliberate and calibrated rules of administrative exhaustion,” among

other procedures, “with respect to that class of defendants.”).

v. Sections 3 and 4 are interrelated statutory provisions, and BLM’s

2014 interpretation failed to give effect to both.

An interpretation of two related statutory provisions must give effect to both.

See Friends of the Earth v. EPA, 446 F.3d 140, 145 (D.C. Cir. 2006); cf. Conn.

Nat’l Bank v. Germain, 503 U.S. 249, 253 (1992) (“Redundancies across statutes

are not unusual events in drafting, and so long as there is no ‘positive repugnancy’

between two laws, a court must give effect to both.”) (internal citation omitted).

For example, in Friends of the Earth, EPA argued that because the Clean Water

Act required states to establish both “applicable water quality standards” and a

“total maximum daily load,” the more general water quality standards language

indicated that EPA could avoid the “daily load” requirement and approve a state’s

established “seasonal” or “annual” loads. Friends of the Earth, 446 F.3d at 144.




16

Noting that the Clean Water Act “requires states to establish daily loads that also

meet applicable water quality standards,” the D.C. Circuit rejected EPA’s

argument—“[t]he existence of two conditions does not authorize EPA to disregard

one of them.” Id . at 145 (emphasis in original).

Like EPA’s interpretation in Friends of the Earth, BLM’s 2014 decision

complies only with one provision of the applicable statute. The existence of BLM’s

removal authority on private lands under a separate section in the statute “does not

authorize [BLM] to disregard” the application of Section 3 to the public lands on

the Checkerboard. See id . at 145; see also Michigan v. EPA, 135 S. Ct. 2699, 2708

(2015) (explaining that Chevron deference “does not license interpretive

gerrymanders under which an agency keeps parts of statutory context it likes while

throwing away parts it does not”).

vi.

BLM fails to read the WHA in pari materia with FLPMA.

“Statutes that are in pari materia —dealing with the same subject matter—

should be construed consistently with each other.” Impact Energy Res., LLC v.

Salazar , 693 F.3d 1239, 1254 n.1 (10th Cir. 2012) (Seymour, J., concurring); see

also 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.”).




17

Both FLPMA and the WHA weave together to govern management of wild

horses on BLM land. First, the WHA authorizes BLM to “designate and maintain

specific ranges on public lands as sanctuaries for [wild horse] protection and

preservation.” 16 U.S.C. § 1333(a). These “sanctuaries” are the HMAs, and “in

delineating each herd management area,” the agency must consider the area’s

AML. 43 C.F.R. § 4710.3-1.

BLM must also manage “public lands” pursuant to FLPMA. Under FLPMA,

BLM must “develop, maintain, and, when appropriate, revise land use plans which

provide by tracts or areas for the use of the public lands.” 43 U.S.C. § 1712(a). The

land use plans at issue here—known as RMPs—determine both the boundaries of

HMAs and the AML for each HMA. See 43 C.F.R. § 4710.1 (“Management

activities affecting wild horses and burros, including the establishment of herd

management areas, shall be in accordance with approved land use plans prepared

pursuant to Part 1600 of this title.”); see also In Def. of Animals v. U.S. Dep’t of

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

through revisions to the applicable [RMP].”); Cloud Found. v. BLM , 802 F. Supp.

2d 1192, 1204 (D. Nev. 2011) (“BLM executes its duties under the FLPMA by

preparing [RMPs]. Livestock grazing levels and AMLs are set within the RMP.”).

Read together, both the WHA and FLPMA require that BLM may only

modify the range of allowable wild horses in an HMA— i.e., the AMLs—by




18

undertaking the RMP revision process. See 43 U.S.C. § 1712(a); In Def. of

Animals, 909 F. Supp. 2d at 1192. But here, BLM decided to permanently remove

wild horses from Great Divide Basin, Salt Wells Creek, and Adobe Town HMAs

to leave numbers significantly below the AMLs that are set out in the relevant

RMPs. Rather than reading the WHA and FLPMA “consistently with each other,”

BLM’s 2014 interpretation creates a conflict between the two statutes. See Impact

Energy Res., 693 F.3d at 1254 n.1.

vii.

Congress acquiesced to the interpretations of Sections 3 and 4 thatBLM’s 2014 interpretation destroys.

When Congress exhibits a “long time failure” to amend a statute after a court

construes a statute, the silence is evidence of “legislative recognition that the

judicial construction is the correct one.” See Apex Hosiery Co. v. Leader , 310 U.S.

469, 488-89 (1940). Congressional acquiescence to a particular interpretation is

particularly strong when “the application . . . brought forth sharply conflicting

views both on the Court and in Congress.” Id.

BLM’s authority to manage wild horses on federal and private land has been

extensively litigated since Congress passed the WHA over forty years ago. From

early on, appellate courts interpreting the WHA have reinforced BLM’s duty to

protect and manage wild horses on public lands. See, e.g., Kleppe v. New Mexico,

426 U.S. 529 (1976) (finding that the federal government has “complete power” to

regulate and protect wild horses on public land under the WHA); cf., Mountain




19

States Legal Found. v. Hodel , 799 F.2d 1423, 1428 (10th Cir. 1986) (en banc)

(rejecting RSGA’s takings claim against BLM for protecting wild horses on the

Checkerboard because the WHA is a “land-use regulation enacted by Congress to

ensure the survival of a particular species of wildlife. It is not unique in its impact

on private resource owners.”).

Courts have further rejected a landowner’s contention that the WHA allows

BLM to use intrusive techniques on public lands—such as removal of wild horses

to below AMLs—to prevent wild horses from straying onto private land. See

Fallini, 783 F.2d at 1346 (finding that Congress did not suggest “that the BLM

ha[s] a duty, ministerial or prescribed, to prevent straying of wild horses onto

private land”).

For the past forty years, Congress has been aware of controversial nature of

wild horses on the Checkerboard and the courts’ determinations that wild horses

cannot be permanently removed from public land to protect adjacent private land.

See, e.g., Tim Findley, The Horses of Joe Fallini’s Dreams, R ANGE MAGAZINE,

Fall 2010, at 38 (describing the Fallinis receiving calls from congresspersons “as

early as 1976” to discuss BLM’s creation of HMAs and management of wild

horses next to their private land).6 Despite its awareness of the court decisions in

6 See also Jennifer Robison, Hard work and worries dog a Nevada ranch family,

LAS VEGAS R EV.-J., Jun. 15, 2014 (describing the history of the Fallini family

ranch, including that “in the 1980s and early 1990s the property’s wild horse




20

Kleppe, Mountain States Legal Foundation, and Fallini, Congress declined to alter

the carefully calibrated balance between management of wild horses on public

lands (Section 3) and on private lands (Section 4) in subsequent amendments to the

WHA. Indeed, when Congress did amend the WHA ten years ago, by allowing for

the sale of excess older wild horses, see H.R. 4818, Sec. 142 (Dec. 8, 2004), it

specifically amended a part of Section 3, but left the removal provisions of

Sections 3 and 4 untouched. Accordingly, Congress has implicitly acquiesced in

the longstanding judicial interpretations that Section 4 does not authorize BLM to

permanently remove wild horses from public lands.

II. Even if the Act is Ambiguous with Respect to the Checkerboard, the

Court Should Not Defer to BLM.

Even assuming that the relevant Sections of the WHA are ambiguous—and

they are not—BLM cannot claim deference for the statutory interpretation in its

2014 removal decision.

a. BLM’s interpretation does not deserve Chevron deference.

BLM’s interpretation that it needs only to follow the procedures of Section 4

to remove horses on the Checkerboard—an interpretation the agency presented for

population soared to 2,300 as public sentiment turned against culling the herds by

sending some horses to slaughter”); Jim Robbins, On the Run, CHICAGO TRIBUNE,

Mar. 1, 1987, at D13, 32 (detailing Mountain States Legal Foundation lawsuit as

RSGA “tr[ying] to force the government to remove horses from public and private

land,” initially prevailing but “then los[ing] before the full panel of the Tenth

Circuit Court of Appeals”).




21

the first time in its 2014 final decision documents—cannot receive Chevron

deference. The Supreme Court has limited Chevron deference “only to agency

actions exercising congressionally-delegated authority ‘to make rules carrying the

force of law.’” S. Utah Wilderness Alliance v. Office of Surface Mining

Reclamation & Enforcement , 620 F.3d 1227, 1236 (10th Cir. 2010) (quoting Mead

Corp., 533 U.S. at 226-27). Notice-and-comment rulemaking may be “Chevron

deference-worthy activity,” id ., but “unless interested parties could reasonably

anticipate the [interpretation] advanced by the agency such that they had a

meaningful opportunity for notice and comment on the [interpretation] selected,

the [interpretation] would not actually follow from an exercise of the agency’s

delegated policymaking authority.” Mission Group of Kan. v. Riley, 146 F.3d 775,

781-82 (10th Cir. 1998); see also id . (citing S. Ute Indian Tribe v. Amoco Prod.

Co., 119 F.3d 816, 833 (10th Cir. 1997), rev’d on other grounds, for proposition

that “Chevron deference does not apply to administrative actions not promulgated

with procedural protections attendant to legislative rules and adjudications.”).

The Southern District of New York recently applied these principles in

Catskill Mountains Chapter of Trout Unlimited v. EPA, 8 F. Supp. 3d 500

(S.D.N.Y. 2014). EPA sought deference to an interpretation of “navigable waters”

that “EPA explained for the first time in the preamble to the [final] rule.” Id . at 561

n.30. Without deciding whether the final rule was a logical outgrowth of the




22

proposed rule—and, thus, procedurally valid—the district court explained that

EPA’s failure to give notice of the interpretation before public comment “is yet

another reason why the Court moves further away from Chevron on the ‘spectrum’

of deference.” Id . (citing Mead Corp., 533 U.S. at 228); see also Mission Group of

Kan., 146 F.3d at 782 (explaining that deferring to the agency, where potentially

affected parties had no opportunity to comment on the interpretation advanced by

the agency, “would make a mockery of Chevron”); cf . Leyse v. Clear Channel

Broad., 697 F.3d 360, 371-72 (6th Cir. 2012) (“Because fair notice was provided

[by the] proposed rule . . . . the FCC decision resulting from that rulemaking is

entitled to Chevron deference.”).

Like EPA in Catskill Mountains, here BLM does not deserve deference for a

position it announced for the first time in the final decision documents for the 2014

decision. In its 2013 Scoping Notice, BLM presented a wild horse removal

pursuant to both Sections 3 and 4 as the only proposed action. See Pet. App. 144

(2013 Great Divide Basin Scoping Statement); see also Pet. App. 190 (2014

Decision Record stating that the 2013 Scoping Notice “contemplated a gather and

removal under both Section 3 and Section 4”). Indeed, after public comment, the

agency candidly admitted, “BLM has decided not to proceed with the action

described in the December 2013 public scoping notice.” Pet. App. 189 (2014

Decision Record). BLM instead removed wild horses pursuant to only Section 4,




23

but provided no opportunity for public involvement concerning BLM’s abrupt new

statutory interpretation. See id .

In sum, BLM’s decision to remove horses pursuant to only Section 4

procedures did not follow from “meaningful opportunity for notice and comment.”

See Mission Group of Kan., 146 F.3d at 781. Its interpretation was not a proper

exercise of agency policymaking authority, and, therefore, cannot receive Chevron

deference. Id . at 782; see Mead Corp., 533 U.S. at 230 (Chevron deference limited

to where administrative action tends to “foster the fairness and deliberation that

should underlie a pronouncement of such force”).

b. BLM’s interpretation does not deserve Skidmore deference.

Because BLM’s interpretation “does not carry the force of law” and,

therefore, does not deserve Chevron deference, the Court “must examine the

[interpretation] under the framework set forth in Skidmore.” Carpio v. Holder , 592

F.3d 1091, 1098 (10th Cir. 2010). Under Skidmore, an agency’s interpretation

receives deference “only in proportion to its power to persuade.” Hydro Res., Inc.

v. EPA, 608 F.3d 1131, 1146 n.10 (10th Cir. 2010) (en banc).

In assessing the “power to persuade,” courts give weight to agency practice

based on “the thoroughness evident in its consideration, the validity of its

reasoning, [and] its consistency with earlier and later pronouncements.” McGraw

v. Barnhart , 450 F.3d 492, 501 (10th Cir. 2006) (quoting Skidmore, 323 U.S. at




24

140). In this Circuit, an agency interpretation that falls short of just one of these

factors can block deference to the agency’s position. See Reich v. Parker Fire Prot.

Dist., 992 F.2d 1023, 1026 (10th Cir. 1993) (declining to defer to a Secretary of

Labor interpretation that was inconsistent with prior interpretations, even though

the Court believed the Secretary “thoroughly considered her position”). Here,

BLM’s 2014 removal decision is neither a model of agency care nor consistent

with agency practice.7

BLM’s interpretation in its 2014 decision documents does not evince a

“thoroughness” of “consideration.” See McGraw, 450 F.3d at 501. The agency

presented its new view of the WHA in one sentence, repeated in both 2014

decision documents: “BLM will gather all wild horses from the checkerboard

within the HMA as required by Section 4 of the WHA and the Consent Decree.”

Pet. App. 176 (2014 Categorical Exclusion), 189 (2014 Decision Record). The

documents explain BLM’s decision process—that the novel interpretation came

from “consideration of the public comment, including that of [Intervenor] RSGA,”

7 Moreover, BLM has not claimed Skidmore deference for its novel interpretation,

and cannot now claim it for the first time on appeal. See Hydro Res., 608 F.3d at

n.10 (“EPA has not sought Skidmore deference, and when a party chooses not to pursue a legal theory potentially available to it, we generally take the view that it is

‘inappropriate’ to pursue that theory in our opinions.”); see also Schrock v. Wyeth,

727 F.3d 1273, 1284 (10th Cir. 2013) (“Arguments that were not raised below are

waived for purposes of appeal,” even “when a litigant changes to a new theory on

appeal that falls under the same general category as an argument presented at

trial.”) (quotations omitted).




25

id .—but they offer no reasoning for why Section 4 and the 2013 Consent Decree

authorize BLM to bypass Section 3 procedures. Without further explanation, this

Court should not defer to BLM’s cursory position. Cf . Young v. United Parcel

Serv., Inc., 135 S. Ct. 1338, 1352 (2015) (finding EEOC’s new interpretation did

not have the power to persuade because it did not “explain the basis of its latest

guidance”).

Moreover, BLM’s 2014 interpretation is inconsistent with the agency’s prior

decisions. In 2013, for example, BLM removed horses from the Checkerboard

portions of the Adobe Town and Salt Wells Creek HMAs while also maintaining

populations “at AML within the federal land block in accordance” with Section 3

and the existing RMPs. Pet. App. 138 (2013 Environmental Assessment); see also

AR 3408-09 (explaining that “the population will be maintained at the low AML

within the federal land block”). BLM’s 2014 interpretation, in contrast, rejects the

operation of Section 3 on the Checkerboard, without any explanation for why the

agency has altered its longstanding position. The court should not give weight to a

new, inconsistent interpretation that is at odds with decades of BLM wild horse

management in the Checkerboard. See S. Utah Wilderness Alliance v. BLM , 425

F.3d 735, 760 (10th Cir. 2005) (holding that BLM’s “interpretation lacks the

‘consistency’ that is required to warrant strong Skidmore deference”).




26

Because BLM’s determination does not carry the “power to persuade,” the

Court should not defer to the agency’s new interpretation. See Hydro Res., 608

F.3d at 1146 n.10.

CONCLUSION

For the foregoing reasons, this Court should reverse the district court’s

ruling and declare BLM in ongoing violation of the WHA, due to the agency’s

interpretation precluding compliance with Section 3 procedures.

/s/ Daniel H. Lutz Dated: November 27, 2015

Daniel H. Lutz

INSTITUTE FOR PUBLIC REPRESENTATION


600 New Jersey Avenue NW, Suite 312

Washington, DC 20001

(202) [email protected]

Counsel for Amici Curiae Natural Resources and Administrative Law Professors




27

ADDENDUM

IDENTITY OF AMICI CURIAE

• Michael Blumm, Jeffrey Bain Faculty Scholar and Professor of Law,

Lewis & Clark Law School

• Alyson C. Flournoy, Professor and Alumni Research Scholar,

University of Florida, Levin College of Law

• Sam Kalen, Winston S. Howard Distinguished Professor of Law and

Co-Director of the Center for Law and Energy Resources in the Rockies,

University of Wyoming College of Law

• Colette Routel, Professor of Law and Co-Director of Indian Law Center,

William Mitchell College of Law




28

CERTIFICATE OF COMPLIANCE PURSUANT TO

FED. R. APP. 32(a)(7) AND TENTH CIRCUIT RULES

I certify that pursuant to Federal Rule of Appellate Procedure 32(a)(7), the

attached Brief of Amici Curiae Natural Resources and Administrative Law

Professors is proportionally spaced, has a typeface of 14 point Times New Roman,

and contains 6,102 words.

I further certify that all privacy redactions have been made.

I further certify that all paper copies submitted to this Court are exact copies

of this version, which is being submitted electronically via the Court’s CM/ECF

system.

I further certify that the electronic submission was scanned for viruses with

the most recent version of a commercial virus scanning program and is free of

viruses.


Daniel H. Lutz

Hope M. Babcock

Institute for Public Representation

Georgetown University Law Center600 New Jersey Avenue NW, Suite 312


(202) 662-9535

[email protected]




CERTIFICATE OF SERVICE

I hereby certify that on November 27, 2015, I electronically filed the

foregoing Brief of Amici Curiae Natural Resources and Administrative Law

Professors, with the Clerk of Court for the United States Court of Appeals for the

Tenth Circuit by using the Court’s CM/ECF system. I further certify that all parties

are represented by counsel registered with the CM/ECF system, so that service will

be accomplished by the CM/ECF system.


Daniel H. Lutz

Hope M. Babcock

Institute for Public Representation


600 New Jersey Avenue NW, Suite 312


(202) 662-9535

[email protected]


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