Am. Wild Horse Pres. Campaign v. Jewell

847 F.3d 1174

AMERICAN WILD HORSE PRESERVATION CAMPAIGN; Cloud Foundation; Return to Freedom; Carol Walker; Kimerlee Curyl ; Ginger Kathrens, Petitioners–Appellants,

v.Sally JEWELL, in her official capacity as Secretary of the United States Department of the Interior; Neil Kornze, in his official capacity as Bureau of Land Management Acting Director, Respondents–Appellees.

Rock Springs Grazing Association; State Of Wyoming, Intervenor Respondents–Appellees.

Natural Resources and Administrative Law Professors; Mountain States Legal Foundation ; Wyoming Stock Growers Association, Amici Curiae.

No. 15-8033

United States Court of Appeals, Tenth Circuit.

Filed October 24, 2016

William S. Eubanks II, of Meyer Glitzenstein & Eubanks LLP, Fort Collins, Colorado (Katherine A. Meyer of Meyer Glitzenstein & Eubanks, LLP, Washington, D.C., with him on the briefs), for Petitioners-Appellants.

Thekla Hansen-Young, Attorney, United States Department of Justice, Environment and Natural Resources Division, Washington, D.C. (John C. Cruden, Assistant Attorney General; Arthur R. Kleven, Office of the Solicitor, United States Department of the Interior; Andrew C. Mergen, Mark R. Haag, Coby Howell and Jason A. Hill, Attorneys, United States Department of Justice, Environment and Natural Resources Division, Washington, D.C., with her on the brief), for Respondents-Appellees.

Constance E. Brooks, of C. E. Brooks & Assoc., P.C., Denver, Colorado (Cody Doig and Danielle Hagen of C. E. Brooks & Assoc. P.C., Denver, Colorado; and Galen West of West Law Office, PC, Rock Springs, Wyoming, with her on the brief), for Intervenor Respondent-Appellee, Rock Springs Grazing Association.

Erik E. Petersen, Office of Wyoming Attorney General, Cheyenne, Wyoming (Michael J. McGrady, Office of Wyoming Attorney General, with him on the brief), for Intervenor Respondent-Appellee, State of Wyoming.

Daniel H. Lutz and Hope M. Babcock of the Institute for Public Representation, Georgetown University Law Center, Washington, D.C., filed an Amicus Brief on behalf of the Amici Curiae Law Professors.

Maegan L. Woita and Steven J. Lechner of the Mountain States Legal Foundation, Lakewood, Colorado, filed an Amicus Brief on behalf of the Wyoming Stock Growers Association and Mountain States Legal Foundation.

Before BRISCOE, McKAY and MATHESON, Circuit Judges.

BRISCOE, Circuit Judge.

Petitioners American Wild Horse Preservation Campaign, The Cloud Foundation, Return to Freedom, Carol Walker, and Kimerlee Curyl filed this action against Sally Jewell, the Secretary of the Department of the Interior, and Neil Kornze, the acting director of the Bureau of Land Management (BLM), seeking review of BLM's decision to remove wild horses in certain areas of public land located in southwestern Wyoming within an area known as the "Checkerboard." Petitioners alleged, in pertinent part, that the removal violated the Wild Free-Roaming Horses and Burros Act, 16 U.S.C. §§ 1331 –1340, and the Federal Land Policy and Management Act of 1976, 43 U.S.C. §§ 1701 –1787. The district court rejected these claims. Petitioners now appeal. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we reverse the judgment of the district court.

IThe Wild Free-Roaming Horses and Burros Act

At the heart of this case is the Wild Free-Roaming Horses and Burros Act (the Act). In Mountain States Legal Found. v. Hodel, 799 F.2d 1423 (10th Cir. 1986), we described the genesis and purpose of the Act:

Wild horses and burros are the progeny of animals introduced to North America by early Spanish explorers. They once roamed the western rangelands in vast herds. But over time, desirable grazing land was fenced off for private use, while the animals were slaughtered for sport and profit. The herds began to dwindle, and the remaining animals were driven to marginal, inhospitable grazing areas. Alarmed at the decline of these herds, Congress in 1971 enacted the Wild Free-Roaming Horses and Burros Act, 16 U.S.C. §§ 1331 –1340 (1982), to protect the wild horses and burros from "capture, branding, harassment, or death." 16 U.S.C. § 1331 (1982). According to congressional findings, these "living symbols of the historic and pioneer spirit of the West" had been cruelly slain, used for target practice, and harassed for sport. S. Rep. No. 242, 92d Cong., 1st Sess., reprinted in 1971 U. S. Code Cong. & Ad. News 2149, 2149. Congress also found that the wild horses and burros had been exploited by commercial hunters who sold them to slaughterhouses for the production of pet food and fertilizer. Id.; see also Johnston, The Fight to Save a Memory, 50 Texas L. Rev. 1055, 1056–57 (1972).

Established under authority granted Congress by the Property Clause of the Constitution, the Act declares wild horses and burros to be an "integral part of the natural system of the public lands," 16 U.S.C. § 1331 (1982), and mandates that the animals be managed "as components of the public lands." 16 U.S.C. § 1333(a).

Id. at 1425 (footnote omitted). In short, the Act "is nothing more than a land-use regulation enacted by Congress to ensure the survival of a particular species of wildlife." Id. at 1428.

BLM and its management obligations

In the Act, Congress designated BLM to oversee the management of wild horses and burros on public lands. BLM manages wild horses on public lands within what it calls designated herd management areas (HMAs). 43 C.F.R. § 4710.3-1. HMAs and their boundaries are established by BLM in Resource Management Plans (RMPs). RMPs are prepared through a land-use planning process conducted pursuant to the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. §§ 1701 –1787. To comply with the Act's directive to manage wild horses "in a manner that is designed to achieve and maintain a thriving natural ecological balance on the public lands," 16 U.S.C. § 1333(a), BLM maintains a current inventory of wild horses in each HMA; determines the appropriate management level (AML) of wild horses that each HMA can sustain; and determines the method of achieving the designated AML. 16 U.S.C. § 1333(b)(1) ; 43 C.F.R. §§ 4710.2, 4710.3-1.

An AML is "expressed as a population range," with both "an upper and lower limit," "within which [wild horses or burros] can be managed for the long term." Aplt. App. at 115. "The AML upper limit shall be established as the maximum number of [wild horses and burros] which results in a [thriving natural ecological balance] and avoids a deterioration of the range" at issue. Id."The AML lower limit shall normally be established at a number that allows the population to grow (at the annual population growth rate) to the upper limit over a 4–5 year period, without any interim gathers to remove excess [wild horses and burros]." Id.

Sections 3 and 4 of the Act

Two sections of the Act are relevant here. Section 3 of the Act requires BLM, in pertinent part, to "maintain a current inventory of wild free-roaming horses and burros on given areas of the public lands" in order to "make determinations as to whether and where an overpopulation exists and whether action should be taken to remove excess animals," as well as to "determine whether appropriate management levels should be achieved by the removal or destruction of excess animals." 16 U.S.C. § 1333(b)(1). If BLM "determines ... that an overpopulation exists on a given area of the public lands and that action is necessary to remove excess animals," it must "immediately remove excess animals from the range so as to achieve appropriate management levels."¹

16 U.S.C. § 1333(b)(2). Generally speaking, BLM does not remove animals below the AML lower limit except in emergency situations or where there are "[e]scalating problems" that "indicate additional animals need to be removed to protect land health, wildlife habitat and the health of horses and burros remaining on the public land." Aplt. App. at 203.

The second relevant section of the Act is Section 4. It provides as follows:

If wild free-roaming horses or burros stray from public lands onto privately owned land, the owners of such land may inform the nearest Federal marshal or agent of the Secretary, who shall arrange to have the animals removed. In no event shall such wild free-roaming horses and burros be destroyed except by the agents of the Secretary. Nothing in this section shall be construed to prohibit a private landowner from maintaining wild free-roaming horses or burros on his private lands, or lands leased from the Government, if he does so in a manner that protects them from harassment, and if the animals were not willfully removed or enticed from the public lands. Any individuals who maintain such wild free-roaming horses or burros on their private lands or lands leased from the Government shall notify the appropriate agent of the Secretary and supply him with a reasonable approximation of the number of animals so maintained.

16 U.S.C. § 1334.

The Checkerboard

The dispute at issue in this case stems from actions occurring in an area of southwestern Wyoming known as the "Checkerboard." See Exhibit A (map of Checkerboard). The Checkerboard, which "comprises over one million acres of generally high desert land," "derives its name from the pattern of alternating sections of private and public land which it comprises." Mountain States Legal Found., 799 F.2d at 1424, n.1. "The checkerboard scheme of land ownership is a result of the Union Pacific Act passed in 1862." Id. at 1424 n.1. "Under the [Union Pacific] Act, the Union Pacific Railroad Company was awarded the odd-numbered lots of public land along the railbed right-of-way," extending back approximately twenty miles on each side of the railbed, "as the company completed each mile of the transcontinental railroad." Id."By granting to the railroad the odd-numbered sections, and retaining the even-numbered sections, a checkerboard effect resulted." Leo Sheep Co. v. United States, 570 F.2d 881, 885 (10th Cir. 1977), rev'd, 440 U.S. 668, 99 S.Ct. 1403, 59 L.Ed.2d 677 ...