amicus brief wyoming stock growers association

i

William Perry Pendley, Esq.

MOUNTAIN STATES LEGAL FOUNDATION

2596 South Lewis Way

Lakewood, Colorado 80227

Phone: (303) 292-2021

Fax: (303) 292-1980

[email protected]

Attorney for Wyoming Stock Growers Association

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF WYOMING

STATE OF WYOMING,

Petitioner,

v.

UNITED STATES DEPARTMENT OF THE

INTERIOR, et al.,

Respondents,

and

AMERICAN WILD HORSE

PRESERVATION CAMPAIGN, et al.,

Respondent-Intervenors,

FRIENDS OF ANIMALS, et al.,

Respondent-Intervenors.

Case No. 14-cv-00248-NDF

AMICUS CURIAE BRIEF OF THE WYOMING STOCK GROWERS ASSOCIATION IN

SUPPORT OF PETITIONER

Case 2:14-cv-00248-NDF Document 37 Filed 04/06/15 of 31

ii

CORPORATE DISCLOSURE STATEMENT

The undersigned attorney for Amicus Curiae, Wyoming Stock Growers Association

(“WSGA”), certifies that WSGA is a nonprofit corporation that has no parent corporation and

has never issued any stock.

DATED this 2nd day of April, 2015.

Respectfully submitted,

/s/ William Perry Pendley



2596 S. Lewis Way

Lakewood, CO 80227

Phone: (303) 292-2021

Fax: (303) 292-1980

[email protected]


iii

TABLE OF CONTENTS

Page

CORPORATE DISCLOSURE STATEMENT ......................................................... ii

TABLE OF AUTHORITIES ..................................................................................... iv

IDENTITY AND INTEREST OF AMICUS CURIAE .............................................. 1

STATEMENT OF THE CASE .................................................................................. 2

I. LEGAL BACKGROUND ............................................................................. 2

A. The Wild Free-Roaming Horses And Burros Act.............................. 2

B. The Relevant Resource Management Plans ....................................... 6

II. FACTUAL BACKGROUND ........................................................................ 7

SUMMARY OF ARGUMENT ................................................................................. 8

ARGUMENT ............................................................................................................. 9

I. STANDARD OF REVIEW ........................................................................... 9

II. WYOMING PROPERLY STATED A FAILURE TO ACT CLAIM .......... 11

A. Respondents Have Failed To Take A Discrete Agency Action

That They Are Required To Take By Law ........................................ 12

1. The Secretary’s mandatory duty to remove excess wild

horses is a discrete agency action .......................................... 12

2. The Secretary is required to remove excess wild horses

when the evidence demonstrates that an overpopulation

exists ...................................................................................... 14

B. Congress Intended For The Mandatory Duty To Remove

Excess Wild Horses To Be A Discrete, Required Agency

Action ................................................................................................. 19

CONCLUSION .......................................................................................................... 20

CERTIFICATE OF COMPLIANCE ......................................................................... 22

CERTIFICATE OF SERVICE .................................................................................. 23


iv

TABLE OF AUTHORITIES

Page

Cases

Atl. & Gulf Stevedores, Inc. v. Donovan,

274 F.2d 794 (5th Cir. 1960) ............................................................................... 11

Am. Horse Prot. Ass’n v. Watt,

694 F.2d 1310 (D.C. Cir. 1982) ........................................................................... 5

Arbaugh v. Y&H Corp.,

546 U.S. 500 (2006) ............................................................................................. 10

Ashcroft v. Iqbal,

556 U.S. 662 (2009) ............................................................................................. 10

Bell Atlantic Corp. v. Twombly,

550 U.S. 544 (2007) ............................................................................................. 10

Christy Sports, LLC v. Deer Valley Resort Co.,

555 F.3d 1188 (10th Cir. 2009) ........................................................................... 10

Cloud Found., Inc. v. Salazar,

999 F. Supp. 2d 117 (D.D.C. 2013) ..................................................................... 11

Colorado Wild Horse and Burro Coalition v. Salazar,

639 F. Supp. 2d 87 (D.D.C. 2009) ....................................................................... 17

Forest Guardians v. Babbitt,

174 F.3d 1178 (10th Cir. 1999) ........................................................................... 12

Harlow v. Fitzgerald,

457 U.S. 800 (1982) ............................................................................................. 11

HCSC-Laundry v. United States,

450 U.S. 1 (1981) ................................................................................................. 14

In Defense of Animals v. Salazar,

675 F. Supp. 2d 89 (D.D.C. 2009) ....................................................................... 13

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

909 F. Supp. 2d 1178 (E.D. Cal. 2012)................................................................ 6, 15, 16, 18

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

751 F.3d 1054 (9th Cir. 2014) ............................................................................. passim


v

Kane County Utah v. Salazar,

562 F.3d 1077 (10th Cir. 2009) ........................................................................... 9, 10

Larson v. Lujan,

976 F. Supp. 1406 (D. Utah 1992) ....................................................................... 18

Lexmark Int’l, Inc. v. Static Control Components, Inc.,

134 S. Ct. 1377 (2014) ........................................................................................ 10

Lone Star Indus., Inc. v. Horman Family Trust,

960 F.2d 917 (10th Cir. 1992) ............................................................................. 10

Mountain States Legal Found. v. Hodel,

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

Norton v. S. Utah Wilderness Alliance,

542 U.S. 55 (2004) ............................................................................................... passim

Olenhouse v. Commodity Credit Corp.,

42 F.3d 1560 (10th Cir. 1994) ............................................................................. 9

ONRC Action v. Bureau of Land Mgmt.,

150 F. 3d 1132 (9th Cir. 1998) ............................................................................ 11

Roaring Springs Associates v. Andrus,

471 F. Supp. 522 (D. Or. 1978) ........................................................................... 18

Robbins v. Okla.,

519 F.3d 1242 (10th Cir. 2008) ........................................................................... 10

Scheuer v. Rhodes,

416 U.S. 232 (1974) ............................................................................................. 11

Sierra Club v. Thomas,

828 F.2d 783 (D.C. Cir. 1987) ............................................................................. 11

Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83 (1998) ............................................................................................... 10

Wyoming v. U.S. Dep’t of Interior,

360 F. Supp. 2d 1214 (D. Wyo. 2005) ................................................................. 10

Statutes

Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.............................................. passim


vi

5 U.S.C. § 551(13) ............................................................................................... 11

5 U.S.C. § 702 ...................................................................................................... 11

5 U.S.C. § 704 ...................................................................................................... 11

5 U.S.C. § 706(1) ................................................................................................. 8, 11, 12, 14

Wild Free-Roaming Horses and Burros Act, Pub. L. No. 92–195 (Dec. 15,

1971), 85 Stat. 649–651 (1971) (codified at 16 U.S.C. §§ 1331–1340) .................... passim

Pub. L. No. 92-195 § 3(b) .................................................................................... 3

16 U.S.C. § 1331 .................................................................................................. 2, 5

16 U.S.C. § 1332(a) ............................................................................................. 2

16 U.S.C. § 1332(b) ............................................................................................. 2

16 U.S.C. § 1332(f) .............................................................................................. 5, 16

16 U.S.C. § 1333(a) ............................................................................................. 2, 13, 14

16 U.S.C. § 1333(b)(1) ........................................................................................ 4, 13, 14, 19

16 U.S.C. § 1333(b)(2) ........................................................................................ passim

16 U.S.C. § 1333(b)(2)(i)–(iv) ............................................................................ 16

16 U.S.C. § 1333(f)(2) ......................................................................................... 16

16 U.S.C. § 1338 .................................................................................................. 1

16 U.S.C. § 1338a ................................................................................................ 3

Federal Land Policy and Management Act, Pub. L. No. 94–579 (Oct. 21,

1976) (codified at 43 U.S.C. §§ 1701–1782) ............................................................. 3, 6

43 U.S.C. § 1712 .................................................................................................. 6

43 U.S.C. § 1732 .................................................................................................. 6

Public Rangelands Improvement Act of 1978, Pub. L. No. 95-514 (Oct. 25,

1978) (codified as corrected at 43 U.S.C. § 1901(6)) ................................................ 4, 19

Pub. L. No. 95-514 § 2(6) ................................................................................... 4, 19


vii

Rules

Fed. R. Civ. P. 12(b)(1).............................................................................................. 10

Fed. R. Civ. P. 12(b)(6).............................................................................................. 10

Fed. R. App. P. 29 ...................................................................................................... 22

Fed. R. App. P. 29(c)(5) ............................................................................................. 1

Fed. R. App. P. 32(a)(7)(C) ....................................................................................... 22

Fed. R. App. P. 32(a)(7)(B)(iii) ................................................................................. 10

Regulations

43 C.F.R. § 4710.1 ..................................................................................................... 6

43 C.F.R. § 4710.3–1 ................................................................................................. 6

Legislative History

124 CONG. REC. H6228–39 (daily ed. June 29, 1978) ............................................... 4, 5

124 CONG. REC. S5529 (daily ed. April 13, 1978) .................................................... 20

124 CONG. REC. S18222–24 (daily ed. Oct. 11, 1978) .............................................. 19

H.R. REP. NO. 94-1163 (1976) ................................................................................... 3

H.R. REP. NO. 95-1122 (1978) ................................................................................... 5, 19

H. R. REP. NO. 95-1737 (1978) .................................................................................. 5

S. REP. NO. 92-242 (1971) ......................................................................................... 3

Protection, Management and Control of Wild Free-Roaming Horses and

Burros: Hearings on S.457 Before the Subcomm. on Public Lands and

Reserved Water of the Comm. on Energy and Natural Resources, 98th Cong.

100 (1983) .................................................................................................................. 3

Wild Free-Roaming Horses and Burros: Hearings Before the Subcomm. on

Public Lands and Resources of the Comm. on Energy and Natural Resources,

95th Cong. 4 (1977) ................................................................................................... 4


viii

Resource Management Plans

Grass Creek Resource Management Plan .................................................................. 7, 15

Green River Resource Management Plan .................................................................. 6, 15

Lander Resource Management Plan .......................................................................... 6, 7, 15

Rawlins Resource Management Plan......................................................................... 6, 15

Other

BLM Handbook, available at http://www.blm.gov/style/medialib/blm/

wo/Information_Resources_Management/policy/blm_handbook.Par.11148.Fil

e.dat/H-4700-1.pdf (last visited April 1, 2015).......................................................... 6, 15, 16

George Cameron Coggins, The Law of Public Rangeland Management III: A

Survey of Creeping Regulation at the Periphery, 1934-1982, 13 Envtl. L. 295

(1983) ......................................................................................................................... 2

Kenneth P. Pitt, The Wild Free-Roaming Horses and Burros Act: A Western

Melodrama, 15 Envtl. L. 503 (1985) ......................................................................... 2

U.S. Dep’t of Justice, Attorney General’s Manual on the Administrative

Procedure Act (1947) ................................................................................................. 12


1

IDENTITY AND INTEREST OF AMICUS CURIAE1

WSGA is a nonprofit corporation organized under the laws of the State of Wyoming that

was founded in 1872 with the intent to advance and protect the interests of Wyoming’s livestock

producers. WSGA seeks to protect, promote, and assert the business, economic, social, and

educational interests of its members, including sheep producers and 1,000 beef cattle producers.

WSGA represents these interests by regularly engaging in legislative, administrative, and legal

advocacy, including advocacy regarding the management of wild horses in a manner consistent

with sound resource management. As part of its mission, WSGA promotes the role of the

Wyoming livestock industry in resource stewardship by informing and educating the public.

Many WSGA members hold grazing permits and leases to conduct livestock operations

on private and state lands, as well as public lands, such as those administered by the U.S. Bureau

of Land Management (“BLM”). Many of these federal grazing permits are for allotments used

by excess wild horses to the permittees’ detriment. Because WSGA members holding federal

grazing permits cannot “willfully remove[] or attempt[] to remove a [wild horse] from the public

lands, without authority from the Secretary …,” 16 U.S.C. § 1338, these WSGA members must

rely on the Secretary2 fulfilling her mandatory, non-discretionary duty to remove “excess” wild

horses as set forth in the Wild Free-Roaming Horses and Burros Act (“WHA”), 16 U.S.C. §§

1331–1340. Id. § 1333(b)(2).

As an advocate and protector of its members, WSGA has a strong interest in this case.

Because removal of these “excess” wild horses will alleviate stress to the range and on other

1 Pursuant to Fed. R. App. P. 29(c)(5), the undersigned affirms that no counsel for a party

authored this brief in whole or in part, and no person or entity, other than WSGA, its members,

or its counsel, made a monetary contribution specifically for the preparation or submission of

this brief. 2 The BLM is the Secretary’s delegate, but for simplicity, “Secretary” will be used throughout

this brief, unless the context requires otherwise.


2

uses, like livestock grazing, WSGA respectfully submits this amicus curiae brief in support of

Petitioner, the State of Wyoming.

STATEMENT OF THE CASE

I. LEGAL BACKGROUND.

A. The Wild Free-Roaming Horses And Burros Act.

In 1971, under the mistaken belief that “wild free-roaming horses and burros” were

disappearing, Congress passed the WHA “To require the protection, management, and control of

wild free-roaming horses and burros on public lands.” Pub. L. No. 92–195 (Dec. 15, 1971), 85

Stat. 649–651 (1971) (codified at 16 U.S.C. §§ 1331–1340). The stated purpose of the WHA is

to protect “wild free-roaming horses and burros” on public lands “from capture, branding,

harassment, or death ….”3 16 U.S.C. § 1331. To accomplish this purpose, the WHA places all

wild horses on public lands administered by the BLM under the Secretary’s jurisdiction. Id. §§

1332(a), 1333(a). Accordingly, the Secretary is authorized to protect wild horses “as

components of the public lands.” Id. In doing so, the Secretary “shall” manage wild horses “in a

manner that is designed to achieve and maintain a thriving natural ecological balance on the

public lands.” Id. § 1333(a).

3 The “wild” horses and burros sought to be protected by the WHA are not wildlife. “Instead,

they are feral, meaning that they are descended from escaped domesticated beasts.” George

Cameron Coggins, The Law of Public Rangeland Management III: A Survey of Creeping

Regulation at the Periphery, 1934-1982, 13 Envtl. L. 295, 347–48 (1983); Kenneth P. Pitt, The

Wild Free-Roaming Horses and Burros Act: A Western Melodrama, 15 Envtl. L. 503, 505

(1985) (noting that the horse disappeared from North America in prehistoric times and the wild

horses that exist today are descendants from those domesticated equids brought here by

Columbus and Cortez); see also 16 U.S.C. § 1332(b) (inexplicitly declaring “all unbranded and

unclaimed horses and burros on public lands” to be “wild horses and burros”); Mountain States

Legal Found. v. Hodel, 799 F.2d 1423, 1433 (10th Cir. 1986) (Seth, J., dissenting) (“The horses

cannot be biologically ... altered by an Act of Congress into ‘wild animals’”). However, in

keeping with the popular, albeit incorrect, vernacular, the term “wild horses” will be used herein.


3

Despite the WHA’s primary goal of protecting wild horses, Congress recognized the need

to control the wild horse population. S. REP. NO. 92-242 at 3–4 (1971) (“The committee

recognizes that some control over the numbers of animals may be necessary in order to maintain

an ecological balance in an area.”). This need for population control was echoed in Section 3 of

the WHA, although its implementation was originally left to the Secretary’s unbridled discretion.

As originally passed, Section 3 provided, inter alia:

[W]here an area is found to be overpopulated, the Secretary … may order old,

sick, or lame animals to be destroyed in the most humane manner possible, and he

may cause additional excess wild free-roaming horses and burros to be captured

and removed for private maintenance under humane conditions and care.

Pub. L. No. 92-195 § 3(b) (all emphasis added).

Just three years after the passage of the WHA, it was abundantly clear that wild horses

were not disappearing. See Protection, Management and Control of Wild Free-Roaming Horses

and Burros: Hearings on S.457 Before the Subcomm. on Public Lands and Reserved Water of

the Comm. on Energy and Natural Resources, 98th Cong. 100 (1983). In fact, the wild horse

population increased drastically—from an estimated 17,000 in 1971 to approximately 57,000 just

three years later. Id.

In 1976, Congress passed the Federal Land Policy and Management Act (“FLPMA”).

Pub. L. No. 94–579 (Oct. 21, 1976) (codified at 43 U.S.C. §§ 1701–1782). FLPMA amended

the WHA to authorize the Secretary to use helicopters and motor vehicles to capture and

transport wild horses. 16 U.S.C. § 1338a. This section was included because “[t]he Secretaries

have reported that they have been unable to manage the numbers of animals on the range without

the use of aircraft and other mechanical equipment. The result is continuing deterioration of the

lands, wildlife and wild horses and burros dependent upon them, and other multiple use values.”

H.R. REP. NO. 94-1163 at 14 (1976).


4

However, the destruction caused by wild horses continued after the passage of FLPMA.

Indeed, it was clear that the WHA would need to be amended again in order to control the

exponentially increasing wild horse populations. See Wild Free-Roaming Horses and Burros:

Hearings Before the Subcomm. on Public Lands and Resources of the Comm. on Energy and

Natural Resources, 95th Cong. 4, 11 (1977); 124 CONG. REC. H6228–39, 6233 (daily ed. June

29, 1978) (statement of Rep. Roncalio) (“Aircraft were permitted for use in wild horse roundups,

but have not solved the problem of overpopulation.”). Congress tried to address these concerns

in the Public Rangelands Improvement Act of 1978 (“PRIA”):

[T]he [WHA] continues to be successful in its goal of protecting wild free-

roaming horses and burros from capture, branding, harrassment [sic], and death,

but that certain amendments are necessary thereto [to] avoid excessive costs in the

administration of the Act, and to facilitate the humane adoption or disposal of

excess wild free-roaming horses and burros[,] which because they exceed the

carrying capacity of the range, pose a threat to their own habitat, fish, wildlife,

recreation, water and soil conservation, domestic livestock grazing, and other

rangeland values.

Pub. L. No. 95-514 § 2(6) (Oct. 25, 1978) (emphasis added) (codified as corrected at 43 U.S.C. §

1901(6)). Accordingly, Congress amended Section 3 to require the Secretary to maintain an

inventory of wild horses on public lands:

The Secretary shall maintain a current inventory of [wild horses] on given areas

of the public lands. The purpose of such inventory shall be to: make

determinations as to whether and where an overpopulation exists and whether

action should be taken to remove excess animals; determine appropriate

management levels of [wild horses] on these areas of the public lands; and

determine whether appropriate management levels should be achieved by the

removal or destruction of excess animals, or other options (such as sterilization, or

natural controls on population levels).

16 U.S.C. § 1333(b)(1). Congress also amended Section 3 to expressly change the Secretary’s

duty to remove excess wild horses from discretionary to mandatory, that is from “may” to

“shall:”


5

Where the Secretary determines on the basis of … all information currently

available to him, that an overpopulation exists on a given area of the public lands

and that action is necessary to remove excess animals, he shall immediately

remove excess animals from the range so as to achieve appropriate management

levels.

16 U.S.C. § 1333(b)(2) (emphasis added); see H.R. REP. NO. 95-1122 at 22 (1978) (explaining

that the Secretary must remove excess wild horses if other population control methods fail). The

PRIA also amended the WHA to define “excess animals” as, inter alia, “wild free-roaming

horses … (2) which must be removed from an area in order to preserve and maintain a thriving

natural ecological balance and multiple-use relationship in that area.” 16 U.S.C. § 1332(f).

Congress’s actions in passing the PRIA and thereby significantly amending the WHA

evidenced a sea change in its attitude toward wild horses on public lands. In 1971, Congress’s

primary goal was to protect the wild horses. 16 U.S.C. § 1331. Seven years later, Congress’s

primary goal was to control the number of wild horses so as to protect other resources on public

lands. 124 CONG. REC. H6228–39, 6233 (daily ed. June 29, 1978) (statement of Rep. Roncalio)

(“[The PRIA] amends the 1971 [WHA] to require positive action to curb identified

overpopulations of [wild horses] on the public lands.”); H. R. REP. NO. 95-1737 at 15 (1978)

(“The goal of wild horse and burro management, as with all range management programs, should

be to maintain a thriving ecological balance between wild horse and burro populations, wildlife,

livestock, and vegetation, and to protect the range from the deterioration associated with

overpopulation of wild horses and burros.”); Am. Horse Prot. Ass’n v. Watt, 694 F.2d 1310, 1317

(D.C. Cir. 1982) (“[T]he 1978 amendments made it clear that Congress expected prompt

administrative action to deal with wild horse overpopulations …. Congress determined that

‘action is needed to prevent a successful program from exceeding its goals ….’” (quoting H.R.

REP. NO. 95-1122 at 23 (1978)) (citation omitted). Thus, one of Congress’s main purposes for


6

amending Section 3 was to identify and control overpopulations of wild horses, as well as to

mandate the removal of excess wild horses when such management efforts failed.

B. The Relevant Resource Management Plans.

The Secretary develops land use plans, also known as resource management plans

(“RMPs”), under the direction of FLPMA. See 43 U.S.C. §§ 1712, 1732. If public lands contain

wild horses, then RMPs establish herd management areas (“HMAs”)4 and appropriate

management levels (“AMLs”).5 See 43 C.F.R. §§ 4710.1, 4710.3–1.

Wyoming has identified seven overpopulated HMAs in its Petition: Antelope Hills,

Crooks Mountain, Fifteenmile, Green Mountain, Little Colorado, Lost Creek, and Stewart Creek.

ECF No. 1-1 at 149.6 As demonstrated by Wyoming, the Secretary established AMLs in the

applicable RMPs for each of the seven, now undisputedly, overpopulated HMAs.7

4 HMAs are:

[E]stablished for the maintenance of wild horses and burro herds. In delineating

each [HMA], the authorized officer shall consider the appropriate management

level for the herd, the habitat requirements of the animals, the relationships with

other uses of the public land and adjacent private lands, and the constraints in §

4710.4.

43 C.F.R. § 4710.3–1 (2015). 5 AML “is expressed as a population range with an upper and lower limit.” BLM Handbook at

67, available at

http://www.blm.gov/style/medialib/blm/wo/Information_Resources_Management/policy/blm_ha

ndbook.Par.11148.File.dat/H-4700-1.pdf (last visited April 1, 2015). “The AML upper limit is

the number of [wild horses] which results in a [thriving natural ecological balance] and avoids

deterioration of the range.” Id.; In Defense of Animals v. U.S. Dep’t of Interior, 909 F. Supp. 2d

1178, 1185 (E.D. Cal. 2012), aff’d, 751 F.3d 1054 (9th Cir. 2014) (defining AML “as the number

of animals within an HMA which achieves and maintains a thriving natural ecological

balance.”). 6 References to the record are to this Court's docket entries indicated by the electronic case filing

number (“ECF No.”), and all citations are to ECF page numbers. 7 The Lander RMP establishes AMLs for the Antelope Hills, Crooks Mountain, and Green

Mountain HMAs. Lander RMP at 321. The Rawlins RMP establishes AMLs for the Lost Creek

and Stewart Creek HMAs. Rawlins RMP at A12-2. The Green River RMP establishes AML for

the Little Colorado HMA. Green River RMP at 23, 73. The Grass Creek RMP establishes AML


7

For example, the Lander RMP established AML for the Crooks Mountain HMA “in 1993

and 1994 from a process that included five years of focused, intensive monitoring of wild horse

herd areas, use areas, and grazing allotments.” Lander RMP at 317. After this exhaustive

process, the AML for the Crooks Mountain HMA was set at 65–85, and has not changed. Id. at

70, 317. The Lander RMP was revised in June 2014. Id. at 1. During the revision process, the

Secretary evaluated the monitoring data8 to determine whether the AML would need to be

adjusted for the Crooks Mountain HMA.9 See id. at 317 (“Monitoring and adjusting the [AML],

as necessary, would ensure a thriving, natural ecological balance is maintained.”). Despite

knowing the Crooks Mountain HMA was overpopulated, the Secretary retained the same AML,

set at 65–85, for the Crooks Mountain HMA. Id. at 70, 317, 321. RMPs for the six other HMAs

have gone through similar processes. See ECF No. 34 at 9–13.

II. FACTUAL BACKGROUND.

On March 1, 2014, the BLM published data on wild horse populations in HMAs across

the nation (“March 2014 Data”). ECF No. 1-1, 2, 38, 49–159. This data provided population

estimates based mostly on direct counts, i.e. actual observation of animals. Id. at 50. The March

2014 Data included wild horse population estimates for all sixteen HMAs in Wyoming. Id. at

149. Based on these population estimates, the Secretary determined that the seven HMAs at

issue in this case are overpopulated, i.e., contain wild horses above the established AMLs. Id.

for the Fifteenmile HMA. Grass Creek RMP at 21. See ECF No. 34 at 9 n.2 (listing hyperlinks

for the four RMPs). 8 The Secretary monitors the following data: precipitation data, rangeland trends, forage

utilization data, permitted use by livestock, wildlife actual use and forage requirements, and wild

horse population data, such as population counts, reproductive rates, age/sex structure,

observation sightings, and determining areas of highest horse use, or concentration areas. Lander

RMP at 317. 9 Interestingly, the Secretary knew in March of 2014 that the Crooks Mountain HMA contained

twice as many wild horses as AML. See ECF No. 1-1 at 149.


8

On August 21, 2014, Wyoming Governor Matthew H. Mead sent a letter to Secretary

Sally Jewell, and BLM Director Neil Kornze. Id. at 2. This letter provided undisputed facts

showing the harm Wyoming was incurring, and continues to incur, because of the Secretary’s

failure to remove excess wild horses from the overpopulated HMAs. Id. at 4–6, 9–10, 11–13, 37,

43. First, the sage-grouse and their habitat are adversely affected by overpopulated HMAs. Id.

at 4–5, 11, 12 (“The [Wyoming Game & Fish Department] is concerned that the overpopulation

of wild horses within these HMAs will adversely affect lek habitat and local sage-grouse

populations.”). Second, big game species and their habitat are also negatively impacted by

overpopulated HMAs. Id. at 5, 13 (“Wild horses can impact big game at water sources by direct

displacement or causing avoidance when present. Wild horses can also impact big game by

directly competing for rangeland forage.”). Third, “overpopulated HMAs cause financial and

resource damage to State lands within the HMAs.” Id. at 5; see id. at 9, 43. In light of the

demonstrated harm, Wyoming filed the instant Petition to compel the Secretary to perform her

mandatory, non-discretionary duty to remove excess wild horses from the seven HMAs.

SUMMARY OF ARGUMENT

The Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551 et seq., requires that

reviewing courts “shall … compel agency action unlawfully withheld or unreasonably delayed

….” Id. § 706(1). A claim for failure to act under § 706(1) may proceed “where a plaintiff

asserts that an agency failed to take a discrete agency action that it is required to take.” Norton

v. S. Utah Wilderness Alliance, 542 U.S. 55, 64 (2004) (emphasis in original).

First, Wyoming has properly alleged the Secretary failed to take a discrete agency action.

Section 3(b)(2)’s mandate to immediately remove excess wild horses from the range is a discrete


9

agency action. This mandate is a discrete agency action because it demands the immediate and

permanent removal of excess wild horses from a given, overpopulated area.

Second, Wyoming has properly alleged the Secretary failed to take an action she is

required to take. Section 3(b)(2) provides that removal of excess wild horses is required when an

overpopulation exists. AMLs establish the thresholds at which overpopulations will exist. These

overpopulations are confirmed by any information available to the Secretary. Here, the March

2014 Data provides that wild horse populations exceed the established AMLs for the seven

HMAs. This is undisputed. Therefore, the Secretary is required to take immediate action to

remove excess wild horses from the seven HMAs.

Additionally, Congress purposefully amended Section 3 to remove the discretion

previously afforded to the Secretary under the WHA’s original language. Congress replaced that

discretionary language with non-discretionary language mandating the immediate and permanent

removal of excess wild horses from the range when management efforts failed to control the

populations. Congress wanted to ensure that the range would not be destroyed by increasing

wild horse populations. Therefore, Wyoming has pleaded a properly stated failure to act claim

and the Respondents’ and Intervenors’ motions to dismiss should be denied.

ARGUMENT

I. STANDARD OF REVIEW.

In Olenhouse v. Commodity Credit Corp., 42 F.3d 1560 (10th Cir. 1994), the Tenth

Circuit “outlined the principles of judicial review of final agency action under the [APA].” Kane

County Utah v. Salazar, 562 F.3d 1077, 1086 (10th Cir. 2009) (citing Olenhouse, 42 F.3d at

1573–74). Respondents have moved to dismiss the Petition under Fed. R. Civ. P. 12(b)(1)10

and

10

Respondents suggest that Wyoming’s Petition should be dismissed for lack of jurisdiction.

The Supreme Court has recognized that “jurisdiction” “is a word of many, too many, meanings,”


10

(6), ECF No. 29 at 1, while Intervenors have moved to dismiss the Petition under Fed. R. Civ. P.

12(b)(6). ECF No. 31 at 1.

It is axiomatic that dismissals for failure to state a claim are disfavored. Lone Star Indus.,

Inc. v. Horman Family Trust, 960 F.2d 917, 920 (10th Cir. 1992). When reviewing a Rule

12(b)(6) motion, a court must accept as true the petitioner’s well-pleaded factual allegations.

Christy Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1191–92 (10th Cir. 2009). “The

question is whether, if the allegations are true, it is plausible and not merely possible that the

[petitioner] is entitled to relief under the relevant law.” Id. at 1192 (citing Robbins v. Okla., 519

F.3d 1242, 1247 (10th Cir. 2008)). “A claim has facial plausibility when the [petitioner] pleads

factual content that allows the court to draw the reasonable inference that the [respondent] is

liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)). Importantly, at the motion to dismiss

stage, “[t]he issue is not whether a [petitioner] will ultimately prevail[,] but whether the claimant

is entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236

(1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982).

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 90 (1998) (quotation omitted), which is used

far too loosely by federal courts to improvidently dismiss cases. Arbaugh v. Y&H Corp., 546

U.S. 500, 510–11 (2006). To avoid these so-called “drive-by jurisdictional rulings,” Steel Co.,

523 U.S. at 91, the Court has instituted a clear-statement rule requiring Congress to “state[ ]

[clearly] that a threshold limitation on a statute’s scope shall count as jurisdictional....” Arbaugh,

546 U.S. at 515. “When Congress does not rank a statutory limitation … as jurisdictional, courts

should treat the restriction as nonjurisdictional in character.” Id. To the extent Respondents rely

on Wyoming v. U.S. Dep’t of Interior, 360 F. Supp. 2d 1214 (D. Wyo. 2005), for the proposition

that this Court lacks jurisdiction, WSGA submits that case was a prohibited “drive-by

jurisdictional ruling.” Further, in Norton, the Supreme Court did not expressly reject the

plaintiff’s broad programmatic claim for lack of subject-matter jurisdiction. Rather, the Court

merely ruled that challenges seeking broad programmatic relief, as sought in that case, are not

remediable under the APA. See Norton, 542 U.S. at 61–65; see also Lexmark Int’l, Inc. v. Static

Control Components, Inc., 134 S. Ct. 1377, 1386 (2014) (“a federal court’s obligation to hear

and decide cases within its jurisdiction is virtually unflagging.”) (internal quotations omitted).

Therefore, this Court should review Respondents’ Motion to Dismiss through the lens of Rule

12(b)(6), not 12(b)(1).


11

II. WYOMING PROPERLY STATED A FAILURE TO ACT CLAIM.

Under the APA, a person is “entitled to judicial review” if “suffering legal wrong because

of an agency action, or [is] adversely affected or aggrieved by agency action within the meaning

of the relevant statute ….” 5 U.S.C. § 702. “Where no other statute provides a private right of

action, the ‘agency action’ complained of must be ‘final agency action.’”11

Norton, 542 U.S. at

61–62 (quoting 5 U.S.C. § 704) (emphasis in original). “Agency action” includes the “failure to

act.” Id. § 551(13). A “failure to act” is “the omission of an action without formally rejecting a

request—for example, the failure to promulgate a rule or take some decision by a statutory

deadline.” Norton, 542 U.S. at 63.

Under the APA, a court has authority to “compel agency action unlawfully withheld or

unreasonably delayed …” as a form of relief for failure to act claims. 5 U.S.C. § 706(1). “And

enforcement may be by a mandatory injunction.” Atl. & Gulf Stevedores, Inc. v. Donovan, 274

F.2d 794, 802 (5th Cir. 1960). The duty to “compel agency action unlawfully withheld or

unreasonably delayed” provided by § 706(1) is a restatement of “existing judicial practice” at the

time of the APA’s passage under which courts issued “[o]rders in the nature of a writ of

mandamus … to compel an administrative agency to act,” or “to compel an agency or officer to

perform a ministerial or non-discretionary act.” U.S. Dep’t of Justice, Attorney General’s

Manual on the Administrative Procedure Act, 108 (1947) (citations omitted); Norton, 542 U.S. at

11

The WHA does not provide a private right of action. See 16 U.S.C. §§ 1331–40; Cloud

Found., Inc. v. Salazar, 999 F. Supp. 2d 117, 123 (D.D.C. 2013). Thus, Wyoming may bring its

claims before this Court under the APA. Intervenors make the specious argument that Wyoming

fails to state a claim upon which relief can be granted because there is no final agency action.

ECF No. 32 at 10–13. However, WSGA submits that an agency’s failure to act either constitutes

final agency action for purposes of the APA or is an exception to the final agency action

requirement. See ONRC Action v. Bureau of Land Mgmt., 150 F. 3d 1132, 1137 (9th Cir. 1998)

(“an agency’s failure to act has been referred to as an exception to the final agency action

requirement”); Sierra Club v. Thomas, 828 F.2d 783, 792–94 (D.C. Cir. 1987). WSGA also

supports Wyoming’s arguments that the Secretary’s unreasonable delay is final agency action.

See ECF No. 34 at 22–23.


12

63–64. Though mandamus-type relief is an extraordinary remedy, the Supreme Court held that a

claim under § 706(1) may proceed “where a plaintiff asserts that an agency failed to take a

discrete agency action that it is required to take.” Norton, 542 U.S. at 64 (emphasis in original).

A. Respondents Have Failed To Take A Discrete Agency Action That

They Are Required To Take By Law.

1. The Secretary’s mandatory duty to remove excess wild horses

is a discrete agency action.

The first limitation on bringing a failure to act claim under § 706(1) is discreteness.

Norton, 542 U.S. at 63. To pass the discreteness test, the statute must mandate a specific agency

action to be taken. Id. at 66. Section 3(b)(2) of the WHA clearly passes this test.

Section 3 provides:

Where the Secretary determines on the basis of … all information currently

available to him, that an overpopulation exists on a given area of the public lands

and that action is necessary to remove excess animals, he shall immediately

remove excess animals from the range so as to achieve appropriate management

levels.

16 U.S.C. § 1333(b)(2) (emphasis added).

There is simply no question that Section 3(b)(2) imposes a mandatory duty upon the

Secretary. See id. This is because Congress employed the word “shall” when amending Section

3. Id.; Forest Guardians v. Babbitt, 174 F.3d 1178, 1187 (10th Cir. 1999) (“The Supreme Court

and this circuit have made clear that when a statute uses the word ‘shall,’ Congress has imposed

a mandatory duty upon the subject of the command.”) (citations omitted).

Section 3(b)(2) also mandates a specific agency action—the removal of excess wild

horses. This language clearly requires the Secretary to remove excess wild horses from the

public lands. See 16 U.S.C. § 1333(b)(2). In fact, it provides no option other than “removal” of

excess wild horses, which has been interpreted to mean “the permanent separation of horses


13

from a given area.” In Defense of Animals v. Salazar, 675 F. Supp. 2d 89, 97 (D.D.C. 2009)

(emphasis in original); see In Defense of Animals v. U.S. Dep’t of Interior, 751 F. 3d 1054, 1064

(9th Cir. 2014) (affirming the district court’s interpretation that “remove” means the permanent

removal of wild horses). This is important because it demonstrates that the mandate to

permanently remove excess wild horses is non-discretionary. Section 3(b)(2) also imposes a

temporal standard—“immediately”—for when the Secretary must act to remove excess wild

horses. 16 U.S.C. § 1333(b)(2).

Moreover, the mandate to remove excess wild horses is not akin to the broad statutory

mandates described in Norton. 542 U.S. at 66–67 (“compelling compliance with broad statutory

mandates” would “inject[] the judge into day-to-day agency management”). The mandate to

remove excess wild horses is not discretionary; it obligates the Secretary to perform a discrete,

specific agency action—the permanent removal of excess wild horses. 16 U.S.C. § 1333(b)(2).

As such, an order compelling the Secretary to remove excess wild horses from a given area

would not entangle this Court in “abstract policy disagreements” or interfere with the Secretary’s

“lawful discretion.” Norton, 542 U.S. at 66.

Respondents and Intervenors argue the duty to remove excess wild horses is not

mandatory, because the Secretary has discretion on how to manage wild horses under the WHA.

ECF No. 30 at 13, 15–17; ECF No. 32 at 15–17. The Secretary’s mandatory, non-discretionary

duty to remove excess wild horses is not swallowed up by the purported “broad statutory

mandates” of Section 3(a) and (b)(1) of the WHA. See Norton, 542 U.S. at 67 (likening, in dicta,

a claim “that the Secretary failed to ‘manage wild free-roaming horses and burros in a manner

that is designed to achieve and maintain a thriving natural ecological balance . . .” to a broad

statutory mandate that could not be compelled pursuant to § 706(1) of the APA (quoting 16


14

U.S.C. § 1333(a)); 16 U.S.C. § 1333(b)(1) (outlining the purposes of mandating the Secretary to

maintain a current inventory). Rather, the Secretary’s mandatory, non-discretionary duty to

remove excess wild horses is separate from the purported broad statutory mandates under

Sections 3(a) and (b)(1). Compare 16 U.S.C. §§ 1333(a) and (b)(1) with id. § 1333(b)(2). In

fact, Section 3(b)(2)’s language and specificity distinguishes it from the purported broad

statutory mandates. See HCSC-Laundry v. United States, 450 U.S. 1, 6 (1981) (construing “that

a specific statute … controls over a general provision … particularly when the two are

interrelated and closely positioned”). Unlike the allegedly broad statutory mandates under

Section 3(a) and (b)(1), Section 3(b)(2) takes discretion away from the Secretary by requiring the

immediate and permanent removal of excess wild horses—there is no wiggle room.12

Compare

id. § 1333(b)(1) (allowing the Secretary to consider different methods of population control) with

id. § 1333(b)(2) (mandating the permanent removal of excess wild horses).

The Secretary’s duty under Section 3(b)(2) to remove excess wild horses in order to

achieve AML is mandatory and non-discretionary. It mandates that the Secretary perform a

specific action. Thus, Wyoming has stated a plausible claim that the Secretary’s mandatory,

non-discretionary duty to removal excess wild horses is a discrete agency action.

2. The Secretary is required to remove excess wild horses when

the evidence demonstrates that an overpopulation exists.

The second limitation on bringing a failure to act claim under § 706(1) is that the agency

action must be one that the agency is required to take. Norton, 542 U.S. at 63. This means a

discrete agency action must be demanded by law. Id. at 65. Section 3(b)(2) provides that the

discrete, mandatory duty to remove excess wild horses is triggered “[w]hen the Secretary

12

As previously demonstrated, Congress purposefully amended Section 3 to replace the

discretionary removal language (“may”) with a mandatory, non-discretionary duty requiring the

removal of excess wild horses from the range (“shall”), when other management efforts failed.


15

determines … on the basis of all information currently available to him, that [1] an

overpopulation exists on a given area of the public lands and [2] that action is necessary to

remove excess animals[.]” 16 U.S.C. § 1333(b)(2). Agency action is required when evidence

provides that the established AMLs are exceeded.

An AML establishes when an overpopulation will exist on a given HMA. AMLs are

“designed to ensure a thriving natural ecological balance consistent with multiple use objectives

for the HMA.”13

In Defense of Animals, 909 F. Supp.2d at 1192; see Lander RMP at 19, 70,

317; Rawlins RMP at 2-51, A12-1; Green River RMP at 23; Grass Creek RMP at 21–22. For

this reason, an AML represents “a population range within which [wild horses] can be managed

for the long term.” BLM Handbook at 17. AMLs usually have a lower limit and an upper limit.

Id. “The upper limit shall be established as the maximum number of [wild horses] which results

in a [thriving natural ecological balance] and avoids a deterioration of the range.” Id. Because

an AML’s upper limit has been set as the maximum number of wild horses an HMA can support

while maintaining a thriving natural ecological balance, the “AML is a vehicle used to move

towards a [thriving natural ecological balance], and a trigger by which [] the BLM is alerted to

address population imbalance.” In Defense of Animals, 751 F.3d at 1063–64 (quotation omitted)

(emphasis added).

The WHA also “equates excess [wild horses] with AML levels.” In Defense of Animals,

909 F. Supp. 2d at 1191–92 (quoting 16 U.S.C. § 1333(b)(2)). “Excess animals” are defined as,

inter alia, wild horses “which must be removed from an area in order to preserve and maintain a

13

In fact, the BLM Handbook supports this interpretation:

When establishing AML, the analysis shall include an in-depth evaluation of

intensive monitoring data or land health assessment. Intensive monitoring data

shall include studies of grazing utilization, range ecological condition and trend,

actual use, and climate (weather) data. Population inventory, use patterns and

animals distribution should also be considered.

BLM Handbook at 18.


16

thriving natural ecological balance and multiple-use relationship in that area.” 16 U.S.C. §

1333(f)(2). An AML is designed “to ensure” those same principles—thriving natural ecological

balance and multiple-use objectives. In Defense of Animals, 909 F. Supp. 2d at 1192. Simply

put, any wild horses within an HMA that exceed AML are excess, which the Secretary must

remove. Thus, an HMA is “overpopulated,” within the meaning of Section 3(b)(2), when wild

horses exceed AML levels.

A current inventory, like the March 2014 Data, or any information available to the

Secretary, 16 U.S.C. § 1333(b)(2)(i)–(iv), demonstrating that wild horse populations exceed

AML, establish that “action is necessary to remove excess [wild horses.]” Id. § 1333(b)(2).

AMLs set the maximum number of wild horses that the range can tolerate without deteriorating

or affecting other multiple uses. See BLM Handbook at 67; In Defense of Animals, 909 F. Supp.

2d at 1192. Thus, when AML is exceeded, removal is imperative “in order to preserve and

maintain the thriving natural ecological balance and multiple-use relationship in that area.” 16

U.S.C. § 1332(f). In short, action is required when evidence, like the March 2014 Data,

demonstrates that wild horses exceed the established AML in a given HMA.

When an overpopulation exists, as confirmed by evidence available to the agency, the

Secretary’s discrete, mandatory duty to “remove excess [wild horses] from the range so as to

achieve [AMLs],” id. § 1333(b)(2), becomes an “agency action the Secretary is required to

take.” Norton, 542 U.S. at 64 (emphasis in original); see In Defense of Animals, 751 F.3d at

1062 (“the BLM is required to remove wild horses and burros from a given area of the public

lands when an overpopulation exists.” (emphasis in original)). Here, it is undisputed that

overpopulations exist in seven HMAs. ECF No. 1-1 at 149 (March 2014 Data demonstrating

that wild horse populations in seven HMAs exceed established AMLs). Moreover, removal of


17

excess wild horses is essential because all other management efforts, if any, have miserably

failed, as demonstrated by the numbers of excess wild horses in the seven HMAs. Id. Plainly,

the failure of other management efforts to control population efforts trigger the mandatory duty

to remove excess wild horses—a discrete, required agency action.

Respondents and Intervenors argue that the Secretary is not required to remove excess

wild horses from the seven overpopulated HMAs, because no determinations regarding

overpopulation and necessity have occurred.14

ECF No. 30 at 13–17; ECF No. 32 at 13–14. As

demonstrated above, the clear statutory language provides that these determinations have

occurred. This is undisputed, because the March 2014 Data provides that wild horse populations

exceed the established AMLs for the seven HMAs.

Respondents also argue that any determination that an overpopulation exists and action is

necessary “requires more than just a numerical calculation[,]” but instead requires the Secretary

to “evaluate whether removal is required to preserve and maintain a thriving and natural

ecological balance and multi-use relationship in a particular area.”15

ECF No. 30 at 5. However,

14

Respondents and Intervenors rely on Colorado Wild Horse and Burro Coalition v. Salazar,

639 F. Supp. 2d 87 (D.D.C. 2009), for the proposition that the Secretary must make independent

determinations of overpopulation and necessity before excess wild horses can be removed. ECF

No. 30 at 14–15; ECF No. 32 at 6. That case is entirely distinguishable from the case at hand. In

Colorado Wild Horse, the issue before the district court was “whether BLM may remove an

entire herd of [wild horses] that BLM concededly [had] not determined to be ‘excess animals’

within the meaning of the [WHA].” 639 F. Supp. 2d at 95 (emphasis added). The district court

held that the Secretary’s authority to manage horses does not allow it to remove non-excess wild

horses without making an excess determination. Id. at 95–96. In the case at bar, Wyoming is not

claiming that Respondents failed to remove all wild horses, excess or not, from the grossly

overpopulated HMAs. See ECF No. 1 at 3. Rather, Wyoming claims only that Respondents

failed to remove those excess wild horses exceeding the established AMLs. Id.; ECF No. 34 at

2. 15

Respondents also bemoan that their failure to perform their mandatory, non-discretionary duty

to remove excess wild horses is due to a lack of funding. ECF No. 30 at 8. The alleged lack of

funding is not a valid excuse. See Roaring Springs Associates v. Andrus, 471 F. Supp. 522, 526

(D. Or. 1978) (holding plaintiff’s claim was not barred because defendants wished to spend their


18

this argument renders the established AMLs meaningless. As demonstrated above, the

established AMLs were “designed to ensure a thriving natural ecological balance consistent with

multiple use objectives ….” In Defense of Animals, 909 F. Supp. 2d at 1192. Respondents’

argument that another evaluation is required is duplicitous.

Moreover, this argument was recently rejected by the Ninth Circuit. In In Defense of

Animals, the district court ruled that “[a]lthough Plaintiffs contend that population levels under

the [WHA] should be determined solely with reference to a ‘thriving natural ecological balance’

…, that argument appears misplaced since the statute … specifically equates excess animals with

AML levels.” 909 F. Supp. 2d at 1191–92 (quoting 16 U.S.C. § 1333(b)(2)). Thus, the AML

established that “an excess population exists.” Id. at 1192. On appeal the Ninth Circuit

reviewed the “Plaintiffs claim that, to find there were ‘excess animals,’ the BLM was required to

determine that there was not a ‘thriving natural ecological balance’ on the HMA due to the

presence of wild horses and burros at the time of the gather.” In Defense of Animals, 751 F.3d at

1063–64 (emphasis added). The Ninth Circuit interpreted 16 U.S.C. § 1333(b)(2) to mean “the

BLM must achieve a ‘thriving natural ecological balance’ by maintaining the relevant AMLs.”

Id. at 1063 (quoting 16 U.S.C. § 1333(b)(2)). Thus constrained, the Ninth Circuit affirmed the

district court’s holding by stating: “the BLM correctly relied on the AMLs to decide that there

were excess wild horses” and that “Plaintiffs’ assertion that a ‘thriving natural ecological

balance’ was being maintained . . . before the gather was irrelevant.” Id. at 1064.

In conclusion, Section 3(b)(2) is clear: When an overpopulation exists, based on

established AMLs and evidence, like the March 2014 Data, action is required. That required

funds on items other than to remedy the plaintiff’s claim); Larson v. Lujan, 976 F. Supp. 1406,

1410 (D. Utah 1992) (that Congress “with[he]ld the necessary funding” did not eliminate the

Secretary’s “congressionally-imposed duty to process mineral patent applications in a timely

fashion).


19

action is the immediate removal of excess wild horses from the overpopulated HMAs.

Therefore, Wyoming has properly stated a failure to act claim. Because removal of excess wild

horses is a required agency action, the APA compels the Secretary to immediately remove excess

wild horses from the seven HMAs.

B. Congress Intended For The Mandatory Duty To Remove Excess Wild

Horses To Be A Discrete, Required Agency Action.

As demonstrated above, Congress passed the 1978 amendments with the intent to control

wild horse populations that were destroying the range. See Pub. L. No. 95-514 § 2(6); 124

CONG. REC. S18222–24, 18224 (daily ed. Oct. 11, 1978) (statement of Sen. Cannon) (“I am

happy to see they have taken what I believe will be action to require management processes to

take over and be sure to bring under control the rampant range destruction that is going on with

excess wild horses … as a result of previous legislation.”). Congress recognized that lack of a

current inventory of wild horses made it difficult to determine if, and where, wild horse

overpopulations existed. See H.R. REP. NO. 95-1122 at 21 (1978). As a result, Congress

mandated the Secretary to “maintain a current inventory” of wild horses in order to:

[M]ake determinations as to whether and where an overpopulation exists and

whether action should be taken to remove excess animals; determine [AMLs] of

[wild horses] on these areas of the public lands; and determine whether [AMLs]

should be achieved by the removal or destruction of excess animals, or other

options (such as sterilization, or natural controls on population levels).

16 U.S.C. § 1333(b)(1). Congress provided the Secretary with some discretion in determining

AMLs and the methods used to maintain AMLs. See e.g., H.R. REP. NO. 95-1122 at 22 (1978)

(“Where an overpopulation is determined to exist, the Secretar[y] must decide how excess

animals will be controlled. In this regard, the bill mandates that consideration be given to

options to use sterilization or to allow natural controls (such as disease and parasites) to achieve

[AMLs].”); 124 CONG. REC. S5529, 5529 (daily ed. April 13, 1978) (statement of Sen. Cannon)


20

(“This bill attempts to establish factors which should be generally applied to determine an

acceptable [population] level.”).

However, Congress understood that the Secretary’s chosen methods to control wild horse

populations could fail and a more permanent, non-discretionary method would be necessary. See

e.g., H.R. REP. NO. 95-1122 at 22 (1978) (“If the Secretaries find that such methods will not

work, they are then directed to remove excess animals from the range until appropriate

population levels are achieved.”) (emphasis added); 124 CONG. REC. S18222–24, 18222 (daily

ed. Oct. 11, 1978) (statement of Sen. Church) (stating the amendments “mandate the removal of

excess wild horses … so as to maintain an ecological balance of the range and prevent its

destruction by overpopulations of these animals”). It is clear from the legislative history of the

WHA that Congress intended the mandatory, non-discretionary duty to remove excess wild

horses to be a failsafe protection against overpopulation when other control methods failed. The

Secretary has no other option. Thus, Respondents’ argument in favor of unbridled Secretarial

discretion on when the mandatory duty to remove excess wild horses is triggered conflicts with

the legislative history of Section 3, as amended.

CONCLUSION

For the foregoing reasons, this Court should deny Respondents’ and Intervenors’ motions

to dismiss.

DATED this 2nd day of April 2015.


21

Respectfully submitted,




2596 South Lewis Way

Lakewood, Colorado 80227

Phone: (303) 292-2021

Fax: (303) 292-1980

[email protected]

Attorney for Wyoming Stock Growers Association


22

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