MGFINALOPPBRIEF6-27-12

7/31/2019 MGFINALOPPBRIEF6-27-12

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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF WYOMING

______________________________ROCK SPRINGS GRAZING )ASSOCIATION, )

)Petitioner, )

)v. ) Civ. No. 2:11-CV-00263-NDF

))

KEN SALAZAR, ET AL., ))

Respondents. )

INTERVENOR-RESPONDENTS OPENING BRIEF

Katherine A. Meyer

Meyer Glitzenstein & Crystal1601 Connecticut Ave., N.W.Suite 700Washington, D.C. 20009(202) 588-5206

Timothy Kingston408 West 23rd Street, Suite 1Cheyenne, WY 82001-3519(WY Bar No. 5-2476)(307) 638-8885

Attorneys for Intervenor-Respondents

June 27, 2012


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TABLE OF CONTENTS

PAGE

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

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

BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

A. Relevant Statutory Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

1. The Wild Free-Roaming Horses And Burros Act . . . . . . . . . . . . . . . . . . . 3

2. The Taylor Grazing Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

3. The Federal Land Policy Management Act . . . . . . . . . . . . . . . . . . . . . . . . 8

B. Relevant Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

1. The Wyoming Checkerboard and RSGAs Original Lawsuit . . . . . . . . . . 9

2. BLMs Issuance of the Green River Resource Management PlanAnd the Wyoming Consent Decree . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

3. The GAO Report And BLMs New Strategies For ManagingWild Horses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

4. RSGAs Request For The Removal of Horses From the PrivateLands Of The Wyoming Checkerboard . . . . . . . . . . . . . . . . . . . . . . . . . . 15

5. The BLM Is Already At Or Close To The AMLs For This Area . . . . . . 16

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

I. MANDAMUS IS NOT AVAILABLE HERE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

A. The Prior Court Orders Do Not Create Ministerial Duties That Can BeEnforced By Mandamus. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

B. Even If The Prior Court Orders Were Enforceable Through Mandamus,RSGAs Attempt To Do So Is Barred By Laches. . . . . . . . . . . . . . . . . . . . . . . . . 23


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II. RSGAs COMPLAINT ALSO FAILS TO STATE A CLAIM UNDER THE WHAAND ADMINISTRATIVE PROCEDURE ACT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

A. There Is No Mandatory Duty Imposed On The BLM To RemoveWild Horses From The Public Lands. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

B. There Is No Mandatory Duty Requiring BLM To Immediately Remove WildHorses From The Private Lands Of The Wyoming Checkerboard.. . . . . . . . . . . 26

C. BLM Has Not Unreasonably Delayed Carrying Out Its Duties UnderSection 4 Of The WHA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33


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TABLE OF AUTHORITIES

PAGE

CASES

American Rivers and Idaho Rivers United,372 F.3d 413 (D.C. Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

BP America, Incorporated v. Oklahoma ex rel. Edmondson,613 F.3d 1029 (10th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Bennett v. Spear,520 U.S. 154 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Burlington N.R. Company v. Hyundai Merch. Marine Company,63 F.3d 1227 (3d Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Center for Auto Safety,793 F.2d 1346 (D.C. Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Federal Lands Legal Consortium ex rel. Robart Estate v. United States,195 F.3d 1190 (10th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Forest Guardians v. Babbitt,174 F.3d 1178 (10th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 32

Fund for Animals, Incorporated v. U. Southern Bureau of Land Management,460 F.3d 13 (D.C. Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Holmberg v. Armbrecht,327 U.S. 392 (1946) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Jicarilla Apache Tribe v. Andrus,687 F.2d 1324 (10th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Kane Cnty. Utah v. Salazar,

562 F.3d 1077 (10th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Liberty Fund, Incorporated v. Chao,394 F. Supp. 2d 105 (D.D.C. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32


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Lujan v. National Wildlife Federation,497 U.S. 871 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Mashpee Wampanoag Tribal Council, Incorporated v. Norton,336 F.3d 1094 (D.C. Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Norton v. Southern Utah Wilderness Alliance,542 U.S. 55 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 25, 26, 27, 28, 31

Oil, Chemical and Atomic Workers International Union v. Zegeer,768 F.2d 1480 (D.C. Cir. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Pennsylvania Bureau of Corr. v. U.S. Marshals,474 U.S. 34 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23

Public Citizen Health Research Grp. v. Auchter,

702 F.2d 1150 (D.C. Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Shawnee Trail Conservancy v. Nicholas,343 F. Supp. 2d 687 (S.D. Ill. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Southern Utah Wilderness Alliance v. Office of Surface Mining Reclamation and Enforcement,620 F.3d 1227 (10th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Taniguchi v. Kan Pacific Saipan, Limited,132 S.Ct. 1997 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Telecomms. Research Action Ctr. v. FCC,750 F.2d 70 (D.C. Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 32

United States v. Fuller,409 U.S. 488 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

FEDERAL STATUTES

5 U.S.C. 706(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 25, 26, 27, 30

5 U.S.C. 706(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

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

28 U.S.C. 1651 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22


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42 U.S.C. 4321- 4370(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

43 U.S.C. 315-315r . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

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

FEDERAL REGULATIONS

43 C.F.R. 1601.0-2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

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

43 C.F.R. 4710.3-1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6

43 C.F.R. 4710.5(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8

43 C.F.R. 4720.2-1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 27, 28

MISCELLANEOUS

Consolidated Appropriations Act, 2012, Pub. L. No.112-74, 125 Stat. 988 (2011) . . . . . . . . . . 5

Fed. R. Civ. P. 70 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23


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INTRODUCTION

Intervenor-Respondents International Society for the Protection of Mustangs and Burros

(ISPMB), American Wild Horse Preservation Campaign, and The Cloud Foundation

(hereinafter collectively referred to as Wild Horse Advocacy Groups) hereby oppose the relief

requested by the plaintiff Rock Springs Grazing Association (RSGA), and request that

judgment be entered in the Intervenors favor.

RSGA has requested this Court to order defendant Bureau of Land Management

(BLM) to remove all of the wild horses from the Wyoming Checkerboard, an approximately

two million-acre area, half of which are public lands, located in the BLMs Rock Springs

District. See RSGA Opening Brief (RSGA Brf. at 10). The horses that RSGA seeks to have

BLM remove include not only those that have strayed onto private lands there, but also all of the

horses that live on the one million acres of public lands in the Checkerboard. See Complaint at

31 (seeking declaratory relief that BLM must remove all of the wild horses that have strayed

onto RSGA lands and the adjacent public lands within the Wyoming Checkerboard) (emphasis

added); see also RSGA Opening Brief (RSGA Brf.) at 1-2 (demanding relief that would

require the removal of all wild horses within the Wyoming Checkerboard). However, as the

relevant statutes and facts make clear, there is no non-discretionary duty on the part of BLM to

remove any of these wild horses at this time. Rather, as the Supreme Court recognized in a

decision issued twenty-three years after the 1981 Order upon which RSGA bases this action

the BLM has much discretion with regard to its broad statutory mandate to manage wild free-

roaming horses and burros, under the Wild Free-Roaming Horses and Burros Act (WHA), 16

U.S.C. 1331- 1340, Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 66-67 (2004), and the

agency also has discretion to decide when and how best to remove horses that have strayed onto


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RSGAs private lands. Accordingly, under Norton, this Court lacks jurisdiction to grant RSGA

the relief it has requested.

Further, even if RSGAs claim can be considered one as challenging the agencys

unreasonable delay in making the necessary arrangements to have wild horses remaining on a

million acres of private land on the Checkerboard removed from those areas pursuant to Section

4 of the WHA, 16 U.S.C. 1334, and the Administrative Procedure Act, 5 U.S.C. 706(1) a

claim that has not been pled by RSGA that claim must also fail in light of the fact that BLM

has certainly not delayed taking such action. On the contrary, in light of the fact that the only

owner of private land involved here that has ever made a formal request for removal of horses

did not do so until October 4, 2010; that BLM has already removed thousands of wild horses

from the Wyoming Checkerboard in the last several years; that, as the agency explained in its

response to that request, it needs additional funding from Congress and an amendment to the

relevant Resource Management Plan to remove additional horses; and that the agency is

currently considering major new revisions to its entire wild horse program in an effort to manage

wild horse populations through alternative management strategies, the alleged agency delay in

reducing the number of horses that use RSGAs private lands is surely not unreasonable as

defined by the case law that governs such determinations. See, e.g., Forest Guardians v. Babbitt,

174 F.3d 1178, 1191 (10th Cir. 1999)(citing Telecomms. Research Action Ctr. v. FCC, 750 F.2d

70, 80 (D.C. Cir. 1984)). This is particularly true when, at the same time that RSGA complains

about the presence of what amounts to about a hundred extra wild horses on a million acres of

private lands, RSGA is enjoying at taxpayer expense the benefit of grazing the annual

equivalent of tens of thousands of non-indigenous livestock on the public lands that make up the


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Wyoming Checkerboard.

Before turning to our arguments, we feel compelled to bring to the Courts attention the

fact that, as demonstrated herein, RSGA consistently misrepresents the Administrative Record

throughout its brief i.e., it routinely includes Administrative Record citations that simply do

not stand for the proposition for which they are cited, and often cites its own self-serving

statements as the sole evidence of other facts upon which it relies for its arguments. Intervenors

stress this problem at the outset so that the Court does not inadvertently rely on any of these

erroneous citations in reaching a decision in this case.

BACKGROUND

To put this case in context, it is important to review the statutory and regulatory

frameworks that apply here, as well as the pertinent facts.

A. Relevant Statutory Provisions

1. The Wild Free-Roaming Horses And Burros Act

Declaring that wild free-roaming horses and burros are living symbols of the

historic and pioneer spirit of the West, and that they contribute to the diversity of life forms

within the Nation and enrich the lives of the American people, in 1971 Congress enacted the

Wild Free-Roaming Horses and Burros Act (WHA or Act), 16 U.S.C. 1331 et seq., to

ensure that wild free-roaming horses and burros shall be protected from capture, branding,

harassment, [and] death, and be considered in the area where presently found, as an integral

part of the natural system of the public lands. Id. 1331 (emphasis added); see also Senate Rep.

No. 92-242 (June 25, 1971) at 1 (identifying wild horses as a national esthetic treasure and

living symbols of the rugged independence and tireless energy of our pioneer heritage).


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The Act directs the Secretary of the Department of Interior through BLM to protect and

manage wild free-roaming horses . . . as components of the public lands, and, towards that end,

provides that the Secretary may designate and maintain specific ranges on public lands as

sanctuaries for their protection and preservation. 16 U.S.C. 1333(a) (emphasis added). It

further provides that the Secretary shall manage wild free-roaming horses . . . in a manner that is

designed to achieve and maintain a thriving natural ecological balance on the public lands. Id.

To further ensure the objectives of the statute, the Act provides that [a]ll management activities

employed by the BLM shall be at the minimal feasible level. Id. (emphasis added). Thus, as

the General Accounting Office (GAO) recently explained to Congress:

[t]he passage of the 1971 act changed the way BLM managed horses and burroson public lands. Rather than considering them as feral species that caused damageto the rangeland, the agencies had to change their mind-set to protect and managethe animals as an integral part of the ecosystem.

GAO Report to Committee on Natural Resources (October 9, 2008), AR 03757 (emphasis added).

The Act provides that the BLM shall maintain a current inventoryof wild horses on

public lands to determine whether and where an overpopulation exists and whether action should

be taken to remove excess animals, and to determine appropriate management levels of wild

free-roaming horses and burros on these areas of the public lands. 16 U.S.C. 1333(b)(1).

When the BLM determines that an overpopulation of wild horses exists on a particular area of

public lands, and that excess animals must be removed for the purpose of restor[ing] a thriving

natural ecological balance to the range, and [to] protect the range from deterioration associated

with overpopulation, the agency must remove excess animals from the range so as to achieve

appropriate management levels. Id. 1333(b)(2).

The term excess animals is defined by the statute to mean those wild free-roaming


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1 Congressional appropriations language currently prohibits the destruction of healthy,unadopted, wild horses and burros in the care of the Bureau [of Land Management] . . . or for thesale of wild horses and burros that results in their destruction for processing into commercialproducts. Consolidated Appropriations Act, 2012, Pub. L. No.112-74, 125 Stat. 988 (2011).

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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. Id. 1332(f). Once the agency

determines that there are excess animals that must be removed, the statute provides that it may

place those animals for adoption by members of the public, humanely euthanize the animals, or,

in certain circumstances, offer animals for sale. Id. 1333(b)(2),(e).1

The Act further provides that, [f]or the purpose of furthering knowledge of wild horse

and burro population dynamics and their interrelationship with wildlife, forage, water resources,

and assisting him in making his determination as to what constitutes excess animals, the

Secretary shall contract for a research study of such animals with such individuals . . . as may be

recommended by the National Academy of Sciences for having scientific expertise and special

knowledge of wild horse and burro protection, wildlife management and animal husbandry as

related to rangeland management. Id. 1333(b)(3) (emphasis added).

Pursuant to the Acts provision that BLM may designate and maintain specific ranges on

public lands as sanctuaries for their protection and preservation, id. 1333(a), by regulation the

BLM has defined herd management areas (HMAs) as areas established for the maintenance of

wild horse and burro herds. 43 C.F.R. 4710.3-1. In determining whether wild horses should

remain in an area of public lands the BLM shall consider the appropriate management level for

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


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public and adjacent private lands. Id. The appropriate management level (AML) is

expressed as a population range within which [wild horses] can be managed for the long term in

a given management area without resulting in rangeland deterioration. See BLM Handbook at

4.2.1, Exhibit A; see also 16 U.S.C. 1333(b)(1) (authorizing the BLM to determine AMLs). In

establishing, evaluating, or adjusting an AML for a given management area, the BLM must

include an in-depth evaluation of intensive monitoring data or land health assessment . . . .

includ[ing] studies of grazing utilization, range ecological condition and trend, actual use, and

climate (weather) data [as well as] [p]opulation inventory, use patterns and animal distribution.

BLM Handbook at 4.2.2.1, 4.2.2.2 (emphasis added).

The AMLs are also decided as part of the BLMs broader resource plan for the public

lands in question a planning process that requires public notice and comment, as well as review

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

4370(f). See, e.g., Fund for Animals, Inc. v. U. S. Bureau of Land Management, 460 F.3d 13, 16

(D.C. Cir. 2006) (citing 16 U.S.C. 1333(b)(1)) (the appropriate management levels [AMLs]

for wild horses are determined through BLMs planning process to be consistent with the

objective of achieving and maintaining a thriving ecological balance and multiple-use relationship

in a particular herd area) (emphasis added); 43 C.F.R. 4710.1 ([m]anagement activities

affecting wild horses and burros . . . shall be in accordance with approved land use plans)

(emphasis added); BLM Handbook (June 2010) at 4.2.2 (([a]n interdisciplinary and site-specific

environmental analysis and decision process (NEPA) with public involvement is required to

establish or adjust AML) (emphasis added).

Should the BLM, on the basis of the AML and other factors, make the two-part


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determination that (a) there is an overpopulation of wild horses in a given area of public lands and

(b) those horses must be removed, the agency may undertake measures to remove excess

animals in order to restore a thriving natural ecological balance to the range. 16 U.S.C.

1333(b)(2). As when it adjusts an AML, in making an excess determination, the BLM shall

analyze grazing utilization and distribution, trend in range ecological condition, actual use,

climate (weather) data, current population inventory . . . and other factors such as the results of

land health assessments which demonstrate removal is needed to restore or maintain the range in

a thriving natural ecological balance. BLM Handbook at 4.3. As further made clear by the

WHAs implementing regulations, the BLM may close appropriate areas of the public lands to

grazing use by all or a particular kind of livestock if necessary to provide habitat for wild

horses or burros, to implement herd management actions, or to protect wild horses or burros from

disease, harassment or injury. 43 C.F.R. 4710.5(a).

The WHA further provides that [i]f wild free-roaming horses or burros stray from public

lands onto privately owned land, the owners of such land may inform the nearest Federal marshall

or agent of the Secretary, who shall arrange to have the animals removed. 16 U.S.C. 1334.

Implementing regulations promulgated by the BLM in 1986, provide that [u]pon written notice

from the private landowner to any representative of the Bureau of Land Management, the

authorized officer shall remove stray wild horses and burros from private lands as soon as

practicable. 43 C.F.R. 4720.2-1 (emphasis added).

2. The Taylor Grazing Act

Under the Taylor Grazing Act (TGA), 43 U.S.C. 315-315r, the Secretary of the

Interior, through the BLM, is authorized to issue permits for the grazing of livestock on public


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lands upon the payment . . . of reasonable fees. 43 U.S.C. 315b. However, as the statute

makes clear and contrary to the assertion made by RSGA, RSGA Brf. at 5 the creation of a

grazing district or the issuance of a [grazing] permit . . . shall not create any right, title, interest, or

estate in or to these public lands. Id. (emphasis added); see also United States v. Fuller, 409

U.S. 488, 494 (1973) (The provisions of the Taylor Grazing Act . . . make clear the

congressional intent that no compensable property might be created in the permit lands

themselves as a result of the issuance of the permit); Federal Lands Legal Consortium ex rel.

Robart Estate v. United States, 195 F.3d 1190, 1196 (10th Cir. 1999) (A grazing permit . . . gives

the permittee merely a license to use federal land, not a vested right in that land.); id. at 1198

([T]he very determinations of whether to renew grazing permits and whether public lands should

even be designated for grazing purposes . . . are matters completely within the Secretary of

Interiors discretion.) (citations omitted) (internal quotations omitted).

Indeed, the TGA also provides that the Secretary is authorized, in his discretion, to

. . . classify any lands within a grazing district, which are . . . more valuable or suitable for any

other use, 43 U.S.C. 315f, including use by wild horses that are required to be protected under

the WHA. See 16 U.S.C. 1333(a); see also 43 C.F.R. 4710.5(a) (BLM may prohibit grazing

on the public lands where necessary to protect the wild horses).

3. The Federal Land Policy Management Act

The Federal Land Policy Management Act of 1976 (FLPMA), 43 U.S.C. 1701-1787,

is also administered by the BLM. It requires that certain public lands and their resources be

periodically and systematically inventoried and their present and future use [] projected through

a land use planning process. Id. 1701(a)(2). FLPMA further mandates that public lands be


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managed in a manner that will protect the quality of scientific, scenic, historical, ecological,

environmental, air and atmospheric, water resource, and archeological values; that, where

appropriate, will preserve and protect certain public lands in their natural condition; that will

provide food and habitat for fish and wildlife and domestic animals; and that will provide for

outdoor recreation and human occupancy and use. Id. 1701(a)(8). FLPMA requires the public

lands to be administered for multiple-use, which Congress defined as the management of the

public lands and their various resource values so that they are utilized in the combination that will

best meet the present and future needs of the American people . . . . with consideration being

given to the relative values of the resources and not necessarily to the combination of uses that

will give the greatest economic return or the greatest unit output. Id. 1702(c).

FLPMAs implementing regulations require BLM to periodically develop, maintain, and

revise resource management plans (RMPs) designed to guide and control future

management actions and the development of subsequent, more detailed and limited scope plans

for resources and uses. 43 C.F.R. 1601.0-2. It is through the development of the RMPs that

BLM establishes and modifies the AMLs for wild horses a process which, as explained above,

requires both notice and comment rule-making, as well as compliance with NEPA.

B. Relevant Facts

1. The Wyoming Checkerboard and RSGAs Original Lawsuit

As RSGA explains in its brief, RSGA Brf. at 10, the Wyoming Checkerboard portion of

BLMs Rock Spring District is composed of approximately two million acres half of which are

public lands. See Map, AR 02130 (Exhibit B) (the even numbered sections are publicly owned;

the odd-numbered sections are privately owned). As to the million acres that are privately owned,


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10

according to both RSGAs Complaint and the Motion for Leave to Participate As Amicus Curiae

by Anadarko Land Corp., about half those lands are owned by Anadarko and the rest are owned

by RSGA. See Complaint 2 (RSGA owns . . . approximately 550,000 acres and leases

approximately 450,000 acres, which . . . are privately owned by Anadarko Land Corporation)

(emphasis added); Anadarko Motion For Leave to Participate As Amicus Curiae at 7 (Anadarko

is the primary private landowner within the Wyoming Checkerboard) (emphasis added), id. at

5 (Anadarko has leased to RSGA 482,000 acres that allows RSGA to conduct and manage

grazing rights within the Wyoming Checkerboard).

As RSGA also explains, RSGA Brf. at 8, in 1979 thirty-three years ago RSGA filed a

lawsuit in this Court to require the BLM to remove the wild horses that had strayed onto private

lands within the Checkerboard. In a subsequent decision issued in 1981 this Court held that

BLMs Rock Springs District office shall within one year from the date of this Order remove all

wild horses from the checkerboard grazing lands in the Rock Springs District except that number

which the Rock Springs Grazing Association voluntarily agrees to leave in said area, and the

Court further ordered that BLM shall within two years of the date of this Order remove all

excess horses from within the Rock Springs District. Mountain States Legal Foundation v.

Andrus, 12 ELR 20105 (D. Wyo. April 21, 1981) (AR 00870). As RSGA further recounts, RSGA

Brf. at 6-7, pursuant to an agreement with two wild horse groups, including Intervenor ISPMB,

RSGA agreed to allow 500 wild horses to remain on these private lands an agreement that, as

RSGA also acknowledges, was subsequently incorporated into the official land use plan for this

area as part of the total number of wild horses that could remain on these lands. See RSGA Brf.

at 10 (explaining that the number of horses identified in the 1979 agreement [between RSGA


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2 Although RSGA additionally asserts that BLM incorporated these ALMs in the GreenRiver RMP because BLM recognized the historic nature of the agreement and the need forRSGAs consent to maintain wild horses on the Checkerboard, RSGA Brf. at 10 (emphasisadded), none of the citations provided by RSGA for this completely self-serving statementreflect any such recognition by BLM. See AR 02587 (the cover page for a 2005 EnvironmentalAssessment (EA)); AR 02797 (the cover page for a 2006 EA); AR 02891 (the cover page for a2007 EA); AR 03088 (the cover page for a May 2011 EA); AR 03214 (the cover page for a June2011 EA).

11

and the wild horse groups] were the basis for the AMLs in the Green River Resource

Management Plan).2

A year later RSGA and BLM stipulated to an amendment of the 1981 Order that was

signed by this Court on February 19, 1982. See AR 00886. Contrary to RSGAs contention that

this Order allows RSGA to determine the number of wild horses that can remain on the

Checkerboard, RSGA Brf. at 10, that Order provides that the term excess means those wild

horses above the population level that the Bureau of Land Management has determined to be

appropriate, in accordance with its multiple-use management responsibilities under 16 U.S.C.

1332(f) and 1333; or, in the absence of such a determination, the number of horses above the

number present at the time the Act was passed. AR 00888 (emphasis added).

2. BLMs Issuance of the Green River Resource Management Plan

And the Wyoming Consent Decree

In 1997, after preparing an Environmental Impact Statement under NEPA, and pursuant to

FLPMA, 43 U.S.C. 1701(a)(2), BLM issued the Green River Resource Management Plan

(Green River RMP). In addition to providing direction and allocation of uses of all of the

BLM-administered public lands and resources in the Rock Springs District, that Plan established

the AMLs for wild hoses for the five HMAs included there Salt Wells HMA, a portion of the

Adobe Town HMA, Divide Basin, and the white Mountain and Little Colorado HMAs with a


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combined AML of 1,105-1,600 wild horses, which, as explained supra at 11, included the 500

horses that RSGA had agreed to allow on its private lands. See AR 01065 (explaining that [a]n

appropriate management level of 1,105 to 1,600 wild horses will be maintained among the five

herd management areas); AR 01115 (Table 15) (showing the number of horses by HMA).

In 2003 BLM and Wyoming signed a consent decree to which RSGA acknowledges it

was not a party, see RSGA Brf. at 27-28 requiring BLM by December 2003 to reduce the

number of wild horses to AML for certain HMAs that occur in Wyoming (including Adobe

Town, Great Divide Basin, Salt Wells, White Mountain, and Little Colorado); by June 2005 and

every three years thereafter to complete an inventory of the number of wild horses in all of the

HMAs in Wyoming, and, if on the basis of such an inventory the wild horse population in any

HMA or other area in Wyoming is likely to exceed AML in the following fiscal year, request

funding from Congress to reduce the HMA back to AML. See AR 01287, 01290-91.

However, the Consent Decree also provides that [n]othing in this Consent Decree shall bar

[BLM] from taking additional actions . . . if [BLM] determine[s] such actions are appropriate

under the applicable law, including changing AML in accordance with applicable law, id. (AR

01291) (emphasis added), and that nothing in the Consent Decree shall be construed to limit or

modify the discretion according to BLM by the Wild Free-Roaming Horses and Burros Act, the

APA, or general principles of administrative law with respect to the procedures to be followed in

carrying out any of the activities required herein, or as the implementation or conduct of any of

the activities required herein. AR 01292 (emphasis added).


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3 The Report found that the costs for short-term holding were expected to increase fromabout $11.2 million to $16.2 million, and that spending on long-term holding for unadoptedhorses has increased from about $668,000 in 2000 to more than $9.1 million in 2007. AR01531, and that with the long-term holding facilities at full capacity . . . more wild horses arespending a longer time in the more expensive short-term holding facilities. Id.

13

3. The GAO Report And BLMs New Strategies For

Managing Wild Horses

In October 2008, the GAO issued a report concerning the BLMs Wild Horse and Burro

Program. AR 03740. As the GAO succinctly explained:

[s]ince the passage of the 1971 act, there has been controversy overthe number of wild horses and burros that BLM manages in the wildand the amount of public land available for their management. Thereis concern by some, including wild horse and burro advocacy groups,that the number of animals managed in the wild is too low to protecttheir genetic integrity; that the numbers are based on insufficientrangeland monitoring data; and that BLM gives preference to otherusers of the range, primarily livestock and wildlife. For instance,groups often point out that BLM permits more cattle and sheep to graze

on BLM managed lands than horses.

GAO Report, AR 01527 (emphasis added).

Moreover, in sharp contrast to RSGAs basic theme throughout its brief the GAO

concluded that BLM has made significant progress in setting and meeting AML for the HMAs.

AR 03752. However, it further concluded that [t]he number of wild horses and burros removed

from the range is far greater than the number adopted or sold, which has resulted in a significant

increase in the number of animals in short- and long-term holding and commensurate increases

in the spending for their care. Id. (emphasis added). Thus, the Report explained, [s]ince 2001,

over 74,000 animals have been removed from the range, while only about 46,000 have been

adopted or sold, and that the costs to the government for both the short-term and long-term

holding of horses were anticipated to increase substantially. AR 03753.3


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14

The GAO Report further concluded that [a]lthough there has been an increased effort to

meet AML, there have been many challenges in meeting and maintaining that level, including

limited funding available to conduct gathers and escalating problems and emergencies

such as fire, disease, or other catastrophic events that threaten immediate health of wild

horses and burros or their habitat and require BLM to engage in unplanned gathers that alter

the gather schedule as resources are directed to HMAs in critical need. Id. The GAO also

recognized that [i]n addition to using gathers and removals to manage the population on the

range, BLM had begun using fertility treatment to manage the reproductive rates of wild

horses in a number of HMAs as a means of reducing the populations of wild horses. Id.

Concluding that [t]he long-term sustainability of the BLMs Wild Horse and Burro Program

depends on the resolution of two significant challenges reducing holding costs as well as the

number of horses that are removed from the range but are not adopted, AR 03801, the GAO

stressed that BLMs Wild Horse and Burro Program is at a critical crossroads. AR 03807.

On October 7, 2009, the Secretary of the Interior announced a new initiative for

responding to Congress and GAOs direction to address the many challenges facing the wild

horse and burro program, including the creation of new preserves in the Midwest and East for

non-reproducing herds of wild horses, and new strategies to ensure that the herds on our

western rangelands are kept at more sustainable levels through the use of aggressive use of

fertility control and other management approaches, see Letter from Ken Salazar to Senator

Harry Reid (Oct. 7, 2009), AR 03829 (emphasis added), and on February 28, 2011 BLM issued

its Proposed Strategy for Future Management of Americas Wild Horses and Burros to

implement these and other measures. AR 03893. As explained in that document, [u]nder the


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4For example, although RSGA states in its brief that in 2002 it complained that BLMthreatened additional livestock cuts, while continuing to allow excess wild horses degrade theresources on public and private lands, RSGA Brf. at 16, the only citation provided for thisparticular complaint (AR 03657) is a letter from RSGAs President to a representative ofCongress, not BLM.

15

proposed new strategy, the BLM would place greater emphasis on the use of fertility control . . .

and call on the National Academy of Sciences (NAS) to review previous wild horse management

studies and make recommendations on how the BLM should proceed in light of the latest

scientific research. Id. AR 03895 (emphasis added). As BLM, has also explained, the NAS

study which is expected to be completed in 2013, see AR 03895 is needed because [t]he

success of any strategy the BLM develops hinges on our ability to bridge the many divergent and

conflicting perspectives about how the Wild Horse and Burro Program should be managed in the

West. See NAS Solicitation, AR 03891 (emphasis added).

4. RSGAs Request For The Removal of Horses From the Private LandsOf The Wyoming Checkerboard

Meanwhile, although RSGA asserts in its brief that it complained for years about the

agencys failure to achieve the appropriate AMLs in the Wyoming Checkerboard, see RSGA

Brf. at 12- 7, in fact, it admits as it must that the first time it submitted a written request for

removal of all wild horses from the private lands was on October 4, 2010. See RSGA Brf. at

18; see also AR 01427 (Letter to BLM from John Hay).4

On February 7, 2011, the BLM responded to this request by explaining that

its gather schedule for wild horses is based on available funding for [the] Fiscal Year and the

priorities set by the states; that [c]urrently for FY2011, BLM is not funded to accomplish [the]

task of remov[ing] all wild horses from [RSGAs] private land, including the land within the


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Divide Basin HMA; that [h]owever, the Divide Basis HMA issue is the highest Wyoming

priority for FY2012; that BLM Wyoming has started the NEPA process to deal with the

matter; and that it intends to request that this matter be placed on the FY2012 gather schedule at

the earliest possible date, based upon appropriations. See AR 01430-31 (emphasis added). The

BLM further explained that the agency continue[s] to manage wild horses and associated

habitats in accordance with the Green River Resource Management Plan (RMP) . . . its

objectives, applicable laws, regulations, and policies, and that [t]he Rock Springs Field Office

is currently updating the RMP in which wild horse management will be addressed and AMLs

will be re-evaluated. Id. (emphasis added).

5. The BLM Is Already At Or Close To The AMLs For This Area

Although RSGA would have this Court believe that BLM has been completely derelict in

its duty to manage wild horses on the Checkerboard at the designated AMLs, in fact the record

shows that the agency is currently working vigorously to reduce horse populations to AML,

despite strong opposition from the public, which believes that the agency is deferring far too

often to the preferences of the livestock industry, instead of protecting the wild horses as the

national esthetic treasure that Congress declared them to be when it enacted the WHA. See

Senate Rep. No. 92-242 (June 25, 1971) at 1; see also GAO Report, AR 01527 (There is

concern . . . that the number of animals managed in the wild is too low to protect their genetic

integrity . . . and that BLM gives preference to other users of the range, primarily livestock).

Indeed, although RSGA asserts that BLM cancelled all planned Wyoming gathers for

FY 2011, RSGA Brf. at 19, BLMs Gather Status Report shows that 2,269 wild horses were

gathered in 2011 from the Adobe Town/Salt Wells Complex alone, AR 03087, which does not


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5 According to BLMs official gather reports, 493 horses were removed from the LittleColorado/White Mtn. HMA in FY 2011, see BLM, Completed FY 2011 Gathers, BLM.gov(lastupdated Feb. 29, 2012),http://www.blm.gov/wo/st/en/prog/whbprogram/herd_management/Data/completed_fy_11_gathers.html; and in FY 2012 900 horses were removed from the Divide Basin HMA and 526horses were removed from the Red Desert Complex, which is also located in Wyoming. See

BLM, Completed FY 2012 Gathers, BLM.gov (last updated April 9, 2012),http://www.blm.gov/wo/st/en/prog/whbprogram/herd_managment/Data/completed_fy_gathers.html.

6Of the total 777,842 acres in the Great Divide HMA, 561,839 acres or 72% - are publiclands administered by BLM, and an additional 20,307 acres are owned by the state of Wyoming.AR 02127.

17

take into account the two thousand additional horses that were removed from other HMAs in

Wyoming during FY 2011 and 2012.5

Further, RSGA admits that for the White Mountain HMA, [t]he 2011 gather left 205

horses, RSGA Brf. at 21 the low AML for that HMA. See id. (The AML for the White

Mountain HMA is 205-300). As to the Great Divide HMA, RSGA completely misstates the

record by asserting that after the 2011 gather nearly 700 wild horses, including foals, remained

in the Great Divide Basin HMA, almost 100 above AML. RSGA Brf. at 20. Putting aside the

fact that even using its erroneous number, RSGA is complaining about a total of 100 excess

horses on an area consisting of 777, 842 acres the great majority of which are public lands, see

AR 021276 in fact, as the only document cited by RSGA (AR 04082) clearly shows, only a

grand total of 417 horses, including studs, mares, and foals remain in this area which is

also at the low end of the AML for this HMA. See RSGA Brf. at 20 (the AML is 415-600).

RSGA also misstates the actual number of wild horses in the Adobe Town-Salt Wells

Complex. While stating that the AML for the Salt Wells HMA is 251-365, and for Adobe Town

is 610-800, RSGA Brf. at 20, for a combined high AML of 1165, RSGA then states without


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7Of the 1,273,725 acres in the Adobe Town-Salt Wells Complex, 770,429 or over 60% are public lands administered by BLM; an additional 40,538 are state-owned. See AR 02127.

8 Accordingly, while RSGA may be correct that, using a 20% population increase for2011, there would have been 1032 horses in the Complex in 2011 (20% of 860 = an additional172, for a total of 1032), because 100 of those horses would not be expected to reproduce in thesecond year, they cannot be included in the 20% calculation for 2012 rather, the properbaseline for that calculation is 932 horses, meaning that the total number of horses remaining inthis area is 2012 (20% of 932 = 186, added to 1032 = 1218), or only 53 horses above the highAML of 1165.

18

any citation that after the 2010 roundup of wild horses from that area, [a]pproximately 860

wild horses remained, and that [a]fter two foaling seasons at 20% population growth, the wild

horse population is probably 1,238. Id. (emphasis added). While, even assuming the

correctness of RSGAs calculations, this would mean that the number of wild horses in this area

which covers almost 1.3 million acres (see AR 02127), the great majority of which, again, are

public lands7 exceeds the high AML by only seventy-three horses (the difference between the

high AML of 1165 and 1238). In fact, however, the actual number of horses that remain in this

area is much lower because RSGA failed to take into account that as part of BLMs new

strategy for managing wild horse populations BLM used fertility control on 100 of the female

horses in 2010, who are not expected to give birth after the first year of injection. See AR 03017

(explaining that the 100 mares treated with fertility drugs would not be expected to foal the next

1 or 2 years following treatment) (emphasis added). Taking that important fact into account,

using RSGAs own calculations, the correct number of projected horses that exceed the high

AML would be only fifty-three.8

Thus, as the actual record demonstrates, there simply is no basis for RSGAs position that

BLM is being severely derelict in meeting the AMLs that it has established for wild horses in


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9Not is there any basis for RSGAs completely self-serving statement that [o]n March15, 2011, BLM anounced an allocation of $42.5 million to create a new wild horse preserve eventhough it reduced gathers to save money. RSGA Brf. at 19. The citations provided by RSGA(AR 03927-28) simply do not support this assertion in any respect.

10 According to a recent study by the Congressional Research Service, BLM and FS[Forest Service] are charging a grazing fee of $1.35 per AUM through February 29, 2012 which is the lowest fee that can be charged, and is generally lower than fees charged forgrazing on other federal lands as well as on state and private lands. See CRS Report (ExhibitC) at 1 (emphasis added); see also id. (noting that other federal agencies charged $0.29 to$112.50 per AUM in 2004, and that most agencies charge a fee based on competitive methodsor a market price for forage.). As the CRS Report also explains, BLM and the FS typicallyspend far more managing their grazing programs than they collect in grazing fees,with onestudy estimating the federal cost of an array of BLM, FS, and other agency programs thatbenefit grazing or compensate for impacts of grazing at roughly $500 million annually intaxpayer dollars. Id. at 2 (emphasis added).

11 While RSGA states that [s]heep do not compete directly with elk or wild horses forforage, RSGA Brf. at 6 with three citations that simply do not support that statement at all,see id. (citing AR 03314, AR 03315, AR 03658) in fact, according to the BLM, with theexception of one particular kind of forage (antelope bitter brush), which makes up only 1% of asheeps diet, sheep and wild horses eat the same plant species. See AR 01916; see also AR01917 ([w]ild horse and sheep diets significantly overlap during the winter).

19

the Wyoming Checkerboard, or elsewhere.9

Meanwhile, even accepting RSGAs numbers, while RSGA is complaining about a

hundred extra wild horses on two million acres of land half of which are publicly owned

RSGA is permitted to have the year-round equivalent of tens of thousands of private livestock

grazing on these same lands for its own economic benefit at taxpayer expense,10 even though,

despite RSGAs statement to the contrary, this livestock is competing for the same forage that is

needed by the wild horses that are statutorily required to be protected.11 Indeed, RSGAs own

brief states that [s]hareholding grazing is now 66,817 sheepalone between December and May

of each year for a RSGAs single Rock Springs grazing allotment, RSGA Brf. at 6, which does

not even include the additional 7,000+ cattle that also use this land, see AR 02198 (BLM


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12 In fact, even using the more accurate comparison of animal unit months (AUMs)that livestock use in comparison to wild horses, RSGAs permit shows that on the Rock SpringsAllotment alone, 97,166 AUMs are permitted, of which 20,497 are allocated for cows and76,669 for sheep. See AR 01298. According to the BLMs conversion rate for the AUM grazingsystem i.e., one horses use is equivalent to approximately one cow or five sheep per month,see BLM Rangeland Program Glossary (Exhibit D), this is the annual equivalent to 1,708 cowsand 31,945 sheep (i.e., to determine the year-long equivalent of livestock to horses, the numberof AUMs is divided by 12 months: accordingly, 20,497 AUMs for cows 12 months = 1,708

cows and 76,669 AUMS for sheep 12 months and then multiplied by 5 sheep per AUM = theyear-round equivalent of 31,945 sheep.).

13 See AR 03088, 03151 (showing three allotments in the Divide Basin HMA in additionto the Rock Springs allotment); AR 03216, 03297-98 (listing 2 additional allotments for theWhite Mountain/Little Colorado HMA); AR 02997, 03073-76 (identifying ten additionalallotments in the Salt Wells HMA).

20

document showing that 7074 cattle use this area during the same time-frame),12 as well as the

additional tens of thousands of private livestock that BLM has authorized in the Checkerboard

area under the other fifteen grazing allotments that BLM has authorized in this area.13 Thus,

while RSGA complains mightily about the fact that the wild horses are using forage on private

lands, RSGA Brf. at 16, it conspicuously fails to inform the Court that private livestock is using

the majority of forage on public lands that could otherwise be used by wild horses that, unlike

livestock, are required by statute to be protected. Senate Rep. No. 92-242 (June 25, 1971) at 1.

Although RSGA includes the completely self-serving statement that the [e]xcess

numbers of wild horses have adversely affected rangeland resources, RSGA Brf. at 22, the only

citation it includes for this statement is a letter sent to the BLM over twenty years ago by an

attorney for a private livestock owner. See AR 03444 (Letter dated December 12, 1991 to the

BLM by John MacPherson on behalf of the Stratton Sheep Company). On the other hand,

according to the BLMs own official rangeland health assessment documents, the tens of

thousands of cattle and sheep that are permitted to roam these public lands are causing serious


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21

damage to these resources damage that BLM is required by statute to take into account in

deciding how best to balance the use of this land by both wild horses and livestock. See AR

04115 (Wyoming Rangeland Standards Conformance Review Summary for the Rock

Springs Allotment identifying Livestock Grazing as an important factor related to the

deterioration of the proper functioning of riparian areas and their ability to produce native

riparian vegetation); see also id. at AR 04117 (stating that grazing management practices

hinder the completion of plants life-sustaining reproductive and/or nutrient cycling processes)

(emphasis added); 16 U.S.C. 1332 (f) (requiring BLM to preserve and maintain a thriving

natural ecological balance on the public lands); BLM Handbook at 4.2.2.1 (BLMs

determination of AMLs must be based on an in-depth evaluation of intensive monitoring data or

land health assessment . . . . includ[ing] studies of grazing utilization) (emphasis added).

ARGUMENT

I. MANDAMUS IS NOT AVAILABLE HERE.

A. The Prior Court Orders Do Not Create Ministerial Duties

That Can Be Enforced By Mandamus.

RSGAs invocation of the All Writs Act, 28 U.S.C. 1651, in this case is completely

misplaced. As the Supreme Court long ago ruled, [w]here a statute specifically addresses the

particular issue at hand, it is that authority, and not the All Writs Act, that is controlling.

Pennsylvania Bureau of Corr. v. U.S. Marshals, 474 U.S. 34, 43 (1985); see also id. (Although

that Act empowers federal courts to fashion extraordinary remedies when the need arises, it does

not authorize them to issue ad hoc writs whenever compliance with statutory procedures appears

inconvenient or less appropriate.) (emphasis added). Here, as demonstrated by the plain

language of the WHA, and further discussed below, the circumstances under which BLM must


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22

exercise its authority to remove wild horses from both the public and private lands of the

Wyoming Checkerboard are specifically addressed by statute. Accordingly, there simply is no

basis for this Court to issue a writ of mandamus to require the BLM to operate outside of this

statutory scheme.

In addition, while RSGA premises its request for mandamus on the alleged violation of

this Courts 1981 ruling, not only was that ruling issued before the Supreme Courts decision in

Norton v. SUWA, but it was amended by this Court in 1982 in a way that completely defers to

the exercise of BLMs discretion. See AR 00866 (defining the term excess as those wild

horses above the population level that the Bureau of Land Management has determined to be

appropriate, in accordance with its multiple-use management responsibilities under 16 U.S.C.

1332(f) and 1333) (emphasis added).

Thus, what RSGA really seeks here is to have this Court substantially rewrite the1981

Order to change it from one that imposed a specific duty over a specific period of time and then

deferred to the agencys discretion, to one that imposed a continuing obligation on the part of

BLM over the last thirty-three years and into the indefinite future to remove horses from both

the public and private lands in the Wyoming Checkerboard each year at RSGAs request and

without regard to any other provisions of law that now apply, including those governing

amendments to resource management plans, as well as the procedures mandated by NEPA all

of which, as explained supra, are required to implement the measures requested by RSGA. See

supra at 7 ; see also BP America, Inc. v. Oklahoma ex rel. Edmondson, 613 F.3d 1029, 1033

(10thCir. 2010) (noting that courts are not at liberty to take [their] editing pencils to what


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14 Nor can RSGA rely on provisions in a Consent Decree between the BLM and the Stateof Wyoming, to which RSGA admits it was not a party, to obtain the requested writ ofmandamus, since that Decree expressly states that only Parties signatory to this Consent Decreeshall have any legal or equitable right to seek to enforce this Consent Decree or to seek anyremedy arising out of a Partys performance or failure to perform any term or conditions of thisConsent Decree. See AR 01294. For similar reasons, and because RSGA seeks to have thisCourt order BLM itself to remove wild horses from the Wyoming Checkerboard, Rule 70 of theFederal Rules of Procedure, which is also cited by RSGA as a basis for the Courts jurisdictionhere, RSGA Brf. at 25-27, also does not apply. See Fed. R. Civ. P. 70 (If a judgment requires aparty to . . . perform any other specific act and the party fails to comply within the time specified,the court may order the act to be done . . . by another person appointed by the court.).

23

Congress has written).14 However, because the WHA and BLMs implementing regulations

specifically address these particular issues, this Court may not invoke the All Writs Act to

override these provisions. Pennsylvania Bureau of Corr. v. U.S. Marshals, 474 U.S. at 43.

B. Even If The Prior Court Orders Were Enforceable Through

Mandamus, RSGAs Action Is Barred By Laches.

Even if the 1981 as amended was susceptible to mandamus, RSGAs attempt to enforce

them at this late date is barred by the doctrine of laches. Jicarilla Apache Tribe v. Andrus, 687

F.2d 1324, 1338 (10th Cir. 1982) (recognizing that laches may be found when a party having

knowledge of the relevant facts, acquiesces for an unreasonable length of time in the assertion of

a right adverse to his own) (citations omitted). Here, according to its own brief, RSGA has

believed that BLM has been in violation of the original 1981 Order for over thirty years. See

RSGA Brf. at 12-17. Yet it waited until now, after thirty years of wild horse removals,

Congressional appropriations, litigation over various management techniques and statutory

terms, the issuance of a GAO Report, and the agencys undertaking of several new strategies to

ensure that the herds on our western rangelands are kept at more sustainable levels, AR 03893,

to bring an action in mandamus. RSGAs tardiness in asserting whatever rights it believes it


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15 Nor is there any basis for RSGAs assertions again accompanied by completelyerroneous citations that at various times over the last thirty-three years BLM confirmed that the1981 Order continued to bind the agencys discretion. Thus, for example, RSGA asserts that in abrief filed by the Office of the Solicitor, BLM argued that the 1981 Court Order overrode theWHA, RSGA Brf. at 13 a statement that is not only absurd on its face, but simply can not befound in the materials cited by RSGA (AR 03423-25); see also RSGA Brf. at 29 (asserting thatBLMs position that the 2003 Consent Decree erased its obligations under the 1981 Order isalso impeached by BLMs own environmental documents written after 2003 )(emphasis added)(citing a series of AR citations (AR 02589, 02589, 02819, AR02690, AR 02904, AR 02912, AR03009, AR 03101, AR 03228) that merely explain that the 1979 agreement between RSGA andwild horse groups was later affirmed as the framework for wild horse management . . . throughthe Green River RMP, AR 02589). Similarly, although RSGA asserts that BLM admitt[ed]that it faced contempt of court for violating court orders, RSGA Brf. at 19, the citation provided(AR 02168-69) is a briefing by BLMs Wyoming State Director concerning the arguments that

were being threatened by RSGA and the state of Wyoming.16 For this reason, there is also no basis to RSGAs assertion that res judicata applies here.

RSGA Brf. at 30-31. It is well settled that res judicata does not apply when there has been anintervening change in the applicable legal context. Burlington N.R. Co. v. Hyundai Merch.Marine Co., 63 F.3d 1227, 1237 (3d Cir. 1995) (citing Restatement (Second) of Judgments 28(2)).

24

still has under the 1981 Order simply cannot be excused. Jicarilla Apache Tribe, 687 F/2d at

1338 see also Holmberg v. Armbrecht, 327 U.S. 392, 396-97 (1946) (holding that a party must

exercise reasonable diligence in protecting his rights).15

II. RSGAs COMPLAINT ALSO FAILS TO STATE A CLAIM UNDER THE

WHA AND ADMINISTRATIVE PROCEDURE ACT.

Particularly in the wake of Norton v. SUWA, which was decided twenty-three years after

this Court issued its 1981 Order, RSGA has also failed to allege a sufficient claim under either

the WHA or the Administrative Procedure Act that would provide this Court a basis to issue any

of the relief requested, including both the declaratory relief RSGA requests with respect to the

removal of wild horses from the public lands and the declaratory and injunctive relief it seeks

with regard to the horses on the RSGAs private lands. See Complaint at 31.16


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A. There Is No Mandatory Duty Imposed On The BLM

To Remove Wild Horses From The Public Lands.

RSGA is asking this Court to compel BLM to remove all wild horses within the

Wyoming Checkerboard. RSGA Brf. at 1-2. However, in Norton, the Supreme Court

thoroughly reviewed the circumstances under which a party may rely on the APAs provision

that provides that a Court may compel agency action unlawfully withheld as a basis for relief,

5 U.S.C. 706(1), and explained that a case under this provision of the APA based in turn on

the All Writs Act can proceed only where a plaintiff asserts that an agency failed to take a

discreet agency action that it is required to take, and with respect to which it has no discretion

whatsoever. Norton v. SUWA, 542 U.S. at 64 (emphasis in original). Thus, the Court explained,

[t]he principal purpose of the APA limitations . . . and of the traditional limitations upon

mandamus from which they were derived is to protect agencies from undue judicial

interference with their lawful discretion, and to avoid judicial entanglement in abstract policy

disagreements which courts lack both expertise and information to resolve. Id. at 66 (emphasis

added). The Court further explained that [i]f courts were empowered to enter general orders

compelling compliance with broad statutory mandates, they would necessarily be empowered, as

well, to determine whether compliance was achieved which would mean that it would

ultimately become the task of the supervising court, rather than the agency, to work out

compliance with the broad statutory mandate, injecting the judge into day-to-day agency

management. Id. at 66-67.

As a prime example of one such broad statutory mandate that is immune to mandamus

and hence a claim under the APA that agency action has been unlawfully withheld the

Court cited the WHAs command that the BLM manage wild free-roaming horses and burros in


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

lands, 16 U.S.C. 1333(a) the same basis for RSGAs apparent claim that BLM can be forced

by this Court to remove all excess horses from the public lands of the Wyoming

Checkerboard. Norton, 542 U.S. at 66. However, because as the Supreme Court recognized in

Norton, the WHA grants the BLM wide discretion in determining how best to manage the wild

horses on public lands, including when to remove them, under what circumstances, and pursuant

to which minimal[ly] feasible management activities, 16 U.S.C. 1333(a), this Court lacks

jurisdiction to grant RSGAs request for any relief that would require BLM to remove any of the

wild horses from the public lands within the Wyoming Checkerboard, Complaint at 33; see

also Kane Cnty. Utah v. Salazar, 562 F.3d 1077, 1086 (10 th Cir. 2009) (noting that in Norton the

Supreme Court held that a claim under 706(1) can proceed only where a plaintiff asserts that

an agency failed to take a discreet agency action that it is required to take) (emphasis in

original) (citation omitted).

B. There Is No Mandatory Duty Requiring BLM

To Immediately Remove Wild Horses From ThePrivate Lands Of The Wyoming Checkerboard.

Nor, for several reasons, can this Court grant the other relief requested by RSGA here by

issuing an order directing BLM to remove all wild horses from the private lands at issue here,

which is premised on Section 4 of the WHA. First, the plain language of that provision of the

statute states that [i]f wild free-roaming horses or burros stray from public lands onto privately

owned land, the owners of such land may inform the nearest Federal marshall or agent of the

Secretary, who shall arrange to have the animals removed, 16 U.S.C. 1334 (emphasis added)

a requirement that is repeated in BLMs long-standing implementing regulations. See 43


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C.F.R. 4720.2-1 (Upon written request from the private landowner to any representative of

the Bureau of Land Management, the authorized officer shall remove stray wild horses and

burros from private lands as soon as practicable.) (emphasis added).

As explained supra, to date, the only owner of private land in the Wyoming

Checkerboard that has provided BLM with the requisite written notice requesting the removal

of any horses is RSGA, which owns about half of those lands. Thus, according to both RSGA

and amicus Anadarko, Anadarko owns the other half of those lands. See Complaint 2 (RSGA

owns . . . approximately 550,000 acres and leases approximately 450,000 acres, which . . . are

privately owned by Anadarko Land Corporation) (emphasis added); Anadarko Motion For

Leave to Participate As Amicus Curiae at 5 (Anadarko has leased to RSGA 482,000 acres

within the Checkerboard). Therefore, unless and until Anadarko, as the owner[] of such

lands,also provides a written request to BLM requesting it to remove wild horses from the

some 500,000 acres that it owns, 16 U.S.C. 1334, Section 4 of the WHA simply does not come

into play with respect to those lands. See also Bennett v. Spear, 520 U.S. 154, 173 (1997) (It is

the cardinal principle of statutory construction . . . [that] [i]t is our duty to give effect, if

possible, to every clause and word of a statute) (citations omitted) (internal quotation marks

omitted); Taniguchi v. Kan Pacific Saipan, Ltd., 132 S.Ct. 1997, 2002 (2012) ([w]hen a term

goes undefined in a statute, we give the term its ordinary meaning.) (citation omitted).

Second, while the statutory language requires BLM to arrange to have wild horses that

have strayed onto public lands removed, once the owner of those lands has made the requisite

request, it provides no deadline by which this task must be accomplished. For that matter, the

statute does not even require BLM to make or complete such arrangements immediatelyor


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pursuant to any other general time-frame, and the long-standing implementing regulations state

only that this must be done as soon as practicable. 43 C.F.R. 4720.2-1 (emphasis added).

Therefore, this provision of the statute also fails to impose the kind of ministerial act that, after

Norton v. SUWA, a court can command an agency to take pursuant to the unlawfully withheld

provision of the APA. See 542 U.S. at 64 (explaining that the mandamus remedy upon which

the APA was based requires a precise, definite act . . . about which [an official] ha[s] no

discretion whatever) (emphasis added) (citations omitted); id. at 65 (noting that even when an

agency is compelled by law to act within a certain time period, but the manner of its action is left

to the agencys discretion, a court can compel the agency to act, but has no power to specify

what the action must be); see also Shawnee Trail Conservancy v. Nicholas, 343 F. Supp. 2d

687, 704 (S.D. Ill. 2004) (finding no mandatory duty where the regulations in question [did not]

direct a precise timetable for when such land management planning processes must occur).

Moreover, here, the record unequivocally demonstrates that BLM is certainly

arrang[ing] to remove wild horses from RSGAs private lands and has in fact removed

thousands of horses from lands within the Checkerboard in the last couple of years. See supra at

17-22. RSGA simply disagrees with the way the agency has decided to carry out its

management responsibilities and the pace at which it is proceeding.

Thus, in its response to RSGAs October 2012 request, BLM cited both the need to

comply with the current resource management plan governing these matters, as well as the lack

of funding currently available for such additional horse round-ups. See AR 01431 ([t]he BLM .

. . continue[s] to manage wild horses and associated habitats in accordance with the current

Green River Resource Management Plan (RMP) . . . its objectives, applicable laws, regulations


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and policies); id. ([c]urrently for FY2011, BLM is not funded to accomplish the requested

removal task). The agency further explained that it was currently updating the RMP in which

wild horse management will be addressed and AMLs will be re-evaluated, id., and that it has

also started the NEPA process, and intends to request [this matter] to be placed on the FY2012

gather schedule at the earliest possible date, based upon appropriations. Id.

Indeed, as RSGA itself admits, for the last thirty-three years RSGA has agreed to keep

hundreds of wild horses on its private lands an agreement that was long ago incorporated into

the official RMP governing this area. See supra at 11. As further explained, supra at 8-9, BLM

cannot amend that RMP without complying with all of the procedural requirements mandated by

FLPMA, as well as NEPA. For these additional reasons, RSGAs desired relief here

immediate removal of all wild horses from its private lands is far from a ministerial act. See

Norton v. SUWA, 542 U.S. at 69 (The statutory directive that BLM manage in accordance

with land use plans, and the regulatory requirement that authorizations and actions conform to

those plans, prevent BLM from taking actions inconsistent with the provisions of a land use

plan.) (emphasis added).

As also demonstrated, supra at 15-16, BLM has recently embarked on new strategies to

ensure that the herds on our western rangelands are kept at more sustainable levels through the

aggressive use of fertility control and other measures, AR 03829, and it has commissioned a

study by the National Academy of Sciences to assist the agency in deciding how best to bridge

the many divergent and conflicting perspectives about how the Wild Horse and Burro Program

should be managed in the West, AR 03891 precisely what Congress directed the agency to do

when facing these complex issues of competing land use priorities under the WHA. The Act


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expressly provides that the Secretary shall consult the National Academy of Sciences [f]or

the purpose of furthering knowledge of wild horse and burro population dynamics . . . and

assisting him in making determinations as to what constitutes excess animals, 16 U.S.C.

1333(b)(3) (emphasis added) i.e., those that must be removed from an area to preserve and

maintain a thriving natural ecological balance and multiple use relationship in those areas. Id.

1332(f).

As the foregoing demonstrates, while RSGA clearly takes issue with both the pace of the

agencys actions to remove wild horses from its private lands, as well as the methods the agency

has chosen to accomplish this objective, such disagreements simply do not give rise to an action

in the nature of mandamus under 706(1) of the APA. Indeed, as the Supreme Court explained

in Norton, the limitation that such actions be confined to discrete agency action precludes . . .

broad programmatic attacks on an agencys activities. 542 U.S. at 64; see also id. (explaining

that [the plaintiff] cannot seek wholesale improvement of this program by court decree, rather

than in the offices of the Department or the halls of Congress, where programmatic

improvements are normally made.) (citing Lujan v. National Wildlife Federation, 497 U.S. 871

(1990)). Yet this is precisely what RSGA seeks to launch here with regard to the BLMs revised

strategies for managing wild horses with which RSGA vehemently disagrees. See e.g., RSGA

Brf. at 24 (complaining that [t]he 2011 national wild horse strategy reduces gathers in

contravention of its [sic] obligations to remove wild horses under the 1981 Court Order, as

amended, as well as the 2003 Consent Decree with the State of Wyoming); id. at 24-25 (further

complaining about the fact that under the new strategy BLM will rely on the admittedly

experimental fertility control PZP, and will also expand wild horse strategies and preserves


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and fund the NAS study of wild horse issues).

However, unless and until the BLM issues a final decision actually denying RSGAs

request that it remove wild horses from RSGAs private lands at which point there will be a

final agency action subject to review under Section 706(2) of the APA this Court lacks

jurisdiction to interfere with the BLMs decisions about how best to manage these horses. In

that event, a court would have to decide whether the agencys denial of RSGAs request was

arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law. See 5

U.S.C. 706(2); see also Southern Utah Wilderness Alliance v. Office of Surface Mining

Reclamation and Enforcement, 620 F.3d 1227, 1244 (10th Cir. 2010) (explaining that an

agencys denial of a request is reviewed under the arbitrary and capricious standard of review);

Norton v. SUWA, 542 U.S. at 62. However, that is a question for a different day under a

completely different set of facts that simply are not presented here.

C. BLM Has Not Unreasonably Delayed Carrying Out Its

Duties Under Section 4 Of The WHA.

Finally, because there is no statutory directive regarding when the agency must arrange

to have the wild horses removed from RSGAs private lands, even assuming Section 4 creates a

mandatory duty to act on RSGAs request to remove wild horses from the private lands it owns,

at most, RSGAs complaint must be construed as one taking issue with the agencys delay in

carrying out this requirement. However, that kind of claim one that challenges an agencys

unreasonable delay in carrying out a mandatory duty is governed by a whole host of factors

that are not at issue in a true mandamus action, including the effect of expediting delayed action

on agency activities of a higher or competing priority. See Forest Guardians v. Babbitt, 174

F.3d 1178, 1191 n.18 (10th Cir. 1999) (quoting Telecomms. Research Action Ctr. v. FCC, 750


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F.2d 70, 80 (D.C. Cir. 1984) (emphasis added).

In light of the fact that RSGA did not even lodge its written request with the agency until

October 4, 2010, AR 01427, that BLM would have to amend the relevant resource management

plan to undertake the requested action and would also have to obtain additional Congressional

funding, and that BLM agency is currently considering major new revisions to its entire wild

horse management program, there simply is no basis for this Court to conclude that a delay of a

mere year and a half to remove these relatively few extra wild horses from RSGAs privately

owned land is unreasonable within the meaning of the APA. See, e.g., Liberty Fund, Inc. v.

Chao, 394 F. Supp. 2d 105, 115 (D.D.C. 2005) (reasonableness will depend in large part . . .

upon the complexity of the task at hand, the significant (and permanence) of the outcome, and

the resources available to the agency) (emphasis added) (quoting Mashpee Wampanoag Tribal

Council, Inc. v. Norton, 336 F.3d 1094, 1102 (D.C. Cir. 2003)); see also In re Am. Rivers &

Idaho Rivers United, 372 F.3d 413, 420 (D.C. Cir. 2004) (showing that the reasonable time-

frame may increase if the agency explains practical impediments that slowed acting, such as

administrative error, administrative convenience, practical difficulty in carrying out a

legislative mandate, or need to prioritize in the face of limited resources) (emphasis added);

Public Citizen Health Research Grp. v. Auchter, 702 F.2d 1150, 1156 (D.C. Cir. 1983) (holding

that courts owe respect to expert agency's judgments in arriving at essentially legislative

decisions involving considerations of policy and entailing complex, scientific and factual

information); Oil, Chem. & Atomic Workers Intl Union v. Zegeer, 768 F.2d 1480, 1488 (D.C.

Cir. 1985) (In view of . . . [the] representation that the agency is indeed engaged in an effort . .

. to advance the rulemaking process while securing public participation and careful


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consideration of the many technical issues involved, we cannot say that the two-year course

projected adds up to unreasonable delay.) (emphasis added) (citations omitted); In re Center for

Auto Safety, 793 F.2d 1346, 1354 (D.C. Cir. 1986) ([B]ecause the agency . . . has made some

progress . . . there is reason for the court to stay its hand for the time being.) (emphasis added).

Accordingly, because RSGA has failed to present this Court with any basis for granting any of

the requested relief, this case must be dismissed.

CONCLUSION

For all of the foregoing reasons, RSGAs case must be dismissed and judgment entered

for the Government and Intervenor-Respondents.

Respectfully submitted,

_/s/___________________________Katherine A. Meyer(D.C. Bar No. 244301)MEYER GLITZENSTEIN & CRYSTAL1601 Connecticut Ave., N.W. Suite 700Washington, D.C. 20009(202) 588-5206

Timothy Kingston(WY Bar No. 6-2720)

408 West 23 rd Street, Suite 1Cheyenne, WY 82001-3519(307) 638-8885

Counsel for Intervenor-Respondents

Date: June 27, 2012

MGFINALOPPBRIEF6-27-12

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