Wy Checkerboard Govt Opp to Appeal

No. 14-8063

IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

AMERICAN WILD HORSE PRESERVATION CAMPAIGN; CLOUD FOUNDATION; RETURN TO FREEDOM; CAROL WALKER; KIMBERLEE

CURYL; GINGER KATHRENS, Petitioners-Appellants,

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S.M.R. JEWELL, Secretary of the United States Department of the Interior; NEIL KORNZE, Director of the Bureau of Land Management,

Respondents-Appellees,

and

ROCK SPRINGS GRAZING ASSOCIATION; STATE OF WYOMING, Respondents-Intervenors-Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING (HON. NANCY D. FEUDENTHAL)

FEDERAL DEFENDANTS-APPELLEES’ OPPOSITION TO PLAINTIFFS-APPELLANTS’ MOTION FOR INJUNCTION PENDING APPEAL

Arthur R. Kleven Office of the Solicitor U.S. Dep’t of the Interior

SAM HIRSCH Acting Assistant Attorney General ANDREW C. MERGEN MARK R. HAAG COBY HOWELL MICHAEL THORP THEKLA HANSEN-YOUNG Attorneys, U.S. Dep’t of Justice Env’t & Natural Resources Div. P.O. Box 7415 (Ben Franklin Station) Washington, DC 20044 (202) 307-2710 [email protected]

Appellate Case: 14-8063 Document: 01019306199 Date Filed: 09/05/2014 Page: 1

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TABLE OF CONTENTS

Page

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

BACKGROUND ...................................................................................................................... 2

A. The Wild Horses Act and Wyoming Checkerboard lands. ......................... 2

B. Prior litigation over wild horses in the Checkerboard ................................. 4

C. 2013 and 2014 Horse Gathers ......................................................................... 6

ARGUMENT ............................................................................................................................ 8

I. Petitioners have not established a likelihood of success on the merits. ................ 8

A. BLM complied with the Wild Horses Act ..................................................... 8

B. BLM complied with NEPA. .......................................................................... 13

II. Petitioners have not established irreparable injury. ................................................ 17

III. The balance of the equities and the public interest weigh against an injunction pending appeal. ............................................................................................................ 19

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

CERTIFICATES OF SERVICE, DIGITAL SUBMISSIONS AND PRIVACY REDACTIONS


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TABLE OF AUTHORITES

Page

CASES: American Horse Protection Assoc. v. Andrus,

460 F. Supp. 880 (D. Nev. 1978) ...................................................................................... 16 American Horse Prot. Ass'n v. Watt,

694 F.2d 1310 (D.C. Cir. 1982) .................................................................................... 3, 11 Amoco Prod. Co. v. Village of Gambell,

480 U.S. 531 (1987) ............................................................................................................ 17 Auer v. Robbins,

519 U.S. 452 (1997) ............................................................................................................ 16 Beltronics USA, Inc. v. Midwest Inventory Dist.,

562 F.3d 1067 (10th Cir. 2009) ............................................................................................ 8 Camfield v. United States,

167 U.S. 518 (1897) ........................................................................................................ 4, 9 Chevron U.S.A. v. NRDC,

467 U.S. 837 (1984) .............................................................................................................. 9 Citizens' Comm. to Save Our Canyons v. U.S. Forest Serv.,

297 F.3d 1012 (10th Cir. 2002) .................................................................................. 15, 16 City of New York v. FCC,

486 U.S. 57 (1988) ........................................................................................................ 11, 13 Cloud Found. v. BLM,

802 F. Supp. 2d 1192 (D. Nev. 2011) .............................................................................. 20 Colo. Wild v. U.S. Forest Serv.,

435 F.3d 1204 (10th Cir. 2006) ........................................................................................... 7


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Fund for Animals v. BLM, 460 F.3d 13 (D.C. Cir. 2006) ............................................................................................... 3

Fund for Animals v. Lujan,

962 F.2d 1391 (9th Cir. 1992) ........................................................................................... 17 Granny Goose Foods v. Teamsters,

415 U.S. 423 (1974) .............................................................................................................. 8 Habitat for Horses v. Salazar,

745 F. Supp. 2d 438 (S.D.N.Y. 2010) .............................................................................. 20 In Defense of Animals v. Salazar,

675 F. Supp. 2d 89 (D.D.C. 2009).................................................................................... 20 In Defense of Animals v. U.S. Dep't of the Interior,

751 F.3d 1054 (9th Cir. 2014) ............................................................................................. 3 In Defense of Animals v. U.S. Dep’t of Interior,

737 F. Supp. 2d 1125 (E.D. Cal. 2010) ..................................................................... 18, 20 Lands Council v. McNair,

537 F.3d 981 (9th Cir. 2008) ....................................................................................... 18, 20 Leo Sheep Co. v. United States,

440 U.S. 668 (1979) ......................................................................................................... 4, 9 Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158 (2007) ............................................................................................................ 16 Monsanto Co. v. Geertson Seed Farms,

561 U.S. 139 (2010) ............................................................................................................ 17 Motor Vehicle Mfrs. Assi'n v. State Farm Mut. Ins. Co,

463 U.S. 29 (1983) ............................................................................................................... 16 Mountain States Legal Found. v. Hodel,

799 F.2d 1423 (10th Cir. 1986) ................................................................................... 4, 10 Newton v. FAA,

457 F.3d 1133 (10th Cir. 2006) .................................................................................... 9, 12


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Norton v. SUWA 542 U.S. 55 (2004) ............................................................................................................... 20 Olenhouse v. Commodity Credit Corp.,

42 F.3d 1560 (10th Cir. 1994) ........................................................................................... 16 Prairie Band of Potawatomi Indians v. Pierce,

253 F.3d 1234 (10th Cir. 2001) ......................................................................................... 17 Rock Springs Grazing Ass'n v. Salazar, ("RSGA"),

935 F. Supp. 2d 1179 (D. Wyo. 2013) ....................................................................... passim Town of Superior v. U.S. Fish & Wildlife Serv.,

913 F. Supp. 2d 1087 (D. Colo. 2012) ............................................................................. 15 U.S. ex rel. Bergen v. Lawrence,

848 F.2d 1502 (10th Cir. 1988) ...................................................................................... 1, 4 United States v. Asarco, Inc.,

430 F.3d 972 (9th Cir.2005) .............................................................................................. 19 United States v. Shimer,

367 U.S. 374 (1961) ............................................................................................................ 11 Utah Envtl. Cong., 518 F.3d at 821 .................................................................................................................... 15 Water Keeper Alliance v. U.S. Dep't of Def., 271 F.3d 21 (1st Cir. 2001) ................................................................................................ 17

STATUTES:

Pacific Railroad Act of 1862 12 Stat. 489 ............................................................................................................................. 4 Wild Free-Roaming Horses and Burros Act, 16 U.S.C. § 1332 .................................................................................................................... 3 16 U.S.C. § 1333 ............................................................................................................ passim 16 U.S.C. § 1334 ............................................................................................................ passim


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16 U.S.C. § 1338 ......................................................................................................... 3, 9, 10 42 U.S.C. §§ 4321, et seq. ......................................................................................................... 1 43 U.S.C. § 1061 ........................................................................................................................ 1 43 U.S.C. §§ 1061-65 ................................................................................................................. 4 43 U.S.C. § 1901(a)(6) (Supp. IV 1980) ................................................................................ 12 RULES and REGULATIONS:

Fed. R. App. P. 8(a) ................................................................................................................... 8

Fed. R. Civ. P. 65(c) ................................................................................................................ 21

40 C.F.R. § 1507.3 .............................................................................................................. 7, 13 40 C.F.R. § 1508.4 ........................................................................................................ 7, 13, 14 43 C.F.R. § 46.205 ........................................................................................................ 7, 13, 14 43 C.F.R. § 46.215 ............................................................................................................ 13, 14 43 C.F.R. § 4710.1 ..................................................................................................................... 3 43 C.F.R. § 4710.3-1 .................................................................................................................. 3 43 C.F.R. § 4710.4 ................................................................................................................ 3, 9 43 C.F.R. § 4720.1 ................................................................................................................ 3, 9 43 C.F.R. § 4720.2-1 ......................................................................................................... 1, 3, 9 43 C.F.R. § 4730.1 ..................................................................................................................... 3 LEGISLATIVE HISTORY: S. Rep. No. 92–242, 92nd Cong., 1st Sess., 1971 U.S. Code Cong. & Ad. News 2149, ......................................................................................................................................... 11 H.R. Rep. No. 92–681, 92d Cong., 1st Sess. 6–7, 1971 U.S. Code Cong. & Ad. News

2159, ...................................................................................................................................... 11 H.R. Rep. No. 95–1122, 95th Cong., 2d Sess. 23 (1978) .................................................. 12 MISCELLANEOUS: BLM Manual § 4720.2.21 ....................................................................................................... 15


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INTRODUCTION

This case concerns BLM’s decision to gather and remove wild and free-

roaming horses in three Herd Management Areas (“HMAs”) in Wyoming. Some parts

of these three HMAs consist of Wyoming “Checkerboard” lands—an area that

contains federal public and private lands in an alternating pattern. The public lands are

managed by the U.S. Bureau of Land Management (“BLM”). Private lands in this

area—including land owned by Respondent-Intervenor Rock Springs Grazing

Association—cannot be effectively fenced to exclude wild horses. 43 U.S.C. § 1061;

U.S. ex rel. Bergen v. Lawrence, 848 F.2d 1502, 1506 (10th Cir. 1988). Consequently, wild

horses roam freely throughout this area on public and private lands.

Section 4 of the Wild Free-Roaming Horses and Burros Act (“Wild Horses

Act”) and implementing regulations provide that BLM “shall remove stray wild horses

[] from private lands as soon as practicable” after receiving such a request in writing

from a private landowner. 16 U.S.C. § 1334; 43 C.F.R. § 4720.2-1. The Grazing

Association began requesting that BLM remove horses from its Checkerboard lands

in 1979, marking the beginning of a management challenge that has spanned decades.

After years of litigation, the Grazing Association and BLM negotiated a court-

approved consent decree in Rock Springs Grazing Ass’n v. Salazar, 935 F. Supp. 2d 1179

(D. Wyo. 2013) (Case No. 11–cv–263) (“RSGA”), in which several of the petitioners

herein participated as intervenors. That consent decree requires that BLM “remove all


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wild horses located on [the Grazing Association’s] private lands, including Wyoming

Checkerboard lands,” except for 200-300 White Mountain HMA horses. E62 at 4, ¶ 1.

To carry out its responsibilities under the consent decree and the Wild Horses

Act, on July 18, 2014, BLM approved plans to conduct a gather of all the horses on

Checkerboard lands within three HMAs this summer. E31-35. Petitioners challenged

BLM’s decision and now seek an emergency stay of the gather pending their appeal of

the district court’s denial of their motion for a preliminary injunction. BLM has not

commenced the gather, making it unable to comply with the consent decree,

increasing its expenses, and interfering with its ability to manage for other uses in the

Checkerboard. See Sept. 2014 BLM Decl. (E72-75); E1-5.1 Petitioners fail to

demonstrate that they are likely to succeed on the merits, likely to suffer irreparable

harm, or that the balance of the equities and the public interest favors an injunction.

They are not entitled to the extraordinary remedy of an injunction here.

BACKGROUND

A. The Wild Horses Act and Wyoming Checkerboard lands.

The Wild Horses Act directs BLM to manage wild horses. 16 U.S.C. § 1333(a).

Congress was concerned that wild horses were vanishing, but within only a few years

of the Act’s passage, the situation had reversed itself “and action [was] needed to

prevent a successful program from exceeding its goals and causing animal habitat

1 Documents included as exhibits to this motion are referred to as “E__”, with the bates page number immediately following. Docket entries are identified by “ECF__.”


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destruction.” American Horse Prot. Ass’n v. Watt, 694 F.2d 1310, 1316 (D.C. Cir. 1982).

Left unchecked, wild horse populations grow at a rate of roughly 20% per year. See In

Defense of Animals v. U.S. Dep’t of the Interior, 751 F.3d 1054, 1059 (9th Cir. 2014).

BLM’s obligations under the Wild Horses Act vary depending on whether

horses are on public or private lands. Section 3 of the Act directs BLM to “manage

wild free-roaming horses [] in a manner that is designed to achieve and maintain a

thriving natural ecological balance on the public lands.” 16 U.S.C. § 1333(a); Fund for

Animals v. BLM, 460 F.3d 13, 15 (D.C. Cir. 2006). BLM manages horses in localized

Herd Management Areas, 16 U.S.C. § 1332(c), 43 C.F.R. § 4710.3-1, established as

part of broader land use plans called Resource Management Plans, 460 F.3d at 15; 43

C.F.R. § 4710.1. BLM determines the “appropriate management levels” (“AMLs”) for

wild horse populations in each HMA and is required to remove horses when it

determines that horse overpopulation exists and that action is necessary to remove

excess animals. 16 U.S.C. § 1333; 43 C.F.R. §§ 4710.4, 4720.1.

When wild horses stray onto privately-owned lands, Section 4 provides that

“the owners of such land may inform the [BLM], who shall arrange to have the

animals removed.” 16 U.S.C. § 1334. BLM’s regulations provide that on request from

the landowner, BLM “remove stray wild horses [] from private lands as soon as

practicable.” 43 C.F.R. § 4720.2-1. Horses straying onto private lands cannot be

removed or destroyed by private persons. Id. at § 4730.1; 16 U.S.C. §§ 1334, 1338.


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BLM manages 16 HMAs in Wyoming. RSGA, 935 F. Supp. 2d 1179. Four

HMAs (Adobe Town, Divide Basin, Salt Wells Creek, and White Mountain) contain

Wyoming Checkerboard lands. See E28-29 (maps). “Checkerboard” lands refer to a

public/private pattern of land ownership created by the Pacific Railroad Act of 1862,

which granted the Union Pacific Railroad Company every alternate section—one

square mile—of public land. 12 Stat. 492. In 1885, Congress prohibited landowners

from blocking access to public land by fencing their property. 43 U.S.C. §§ 1061-65;

Camfield v. United States, 167 U.S. 518 (1897).

Management of these interconnected public and private lands requires careful

balancing. Many disputes have arisen concerning the scope of the government’s

authority and the rights of private landowners in the Checkerboard. See Lawrence, 848

F.2d at 1506 (landowners cannot erect fences in Checkerboard); Leo Sheep Co. v. United

States, 440 U.S. 668, 682, 687-88 (1979) (government did not retain easement to

construct road through private Checkerboard land); Mountain States Legal Found. v.

Hodel, 799 F.2d 1423, 1431 (10th Cir. 1986) (horses on private Checkerboard land are

not a taking). The Grazing Association holds grazing permits for BLM’s public lands,

owns private lands, and leases other lands within the Checkerboard. RSGA, 935 F.

Supp. 2d at 1182 n.2. Because it is not fenced, horses move throughout this area. Id.

B. Prior litigation over wild horses in the Checkerboard

In 1975, the Grazing Association requested that BLM remove wild horses.

BLM declined to do so because it had insufficient funds. The Grazing Association


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filed suit in 1979, alleging that BLM was required by Section 4 to remove horses. 935

F. Supp. 2d at 1183. In 1981, the district court ordered BLM to “remove all wild

horses from the checkerboard grazing lands [] except that number which the [Grazing

Association] voluntarily agrees to leave in said area.” Id. In 1985, BLM removed all

horses except those that the Grazing Association allowed. Id. at 1183-84.

As relevant here, in 2010, the Grazing Association demanded that BLM

remove all wild horses and filed suit in July 2011 seeking to enforce the 1981 order

against BLM. 935 F. Supp. 2d at 1184; RSGA, ECF 1. Several of the petitioners-

appellants in the instant lawsuit intervened. RSGA, ECF 32 at 8.2 After many months,

BLM and the Grazing Association ultimately negotiated a compromise where, among

other things, BLM agreed to “remove all wild horses located on [] private lands,

including Wyoming Checkerboard lands” in exchange for leaving 200-300 horses in

Checkerboard lands in the White Mountain HMA. E62-64 ¶¶ 1, 4; E4 ¶ 12. The

agreement also allows wild horses to remain on Checkerboard lands in other HMAs

until their numbers reach a certain level, at which point BLM must prepare to remove

them, thus leaving the remaining horses in the non-Checkerboard parts of the HMAs

to repopulate the herd. E63-64 ¶ 4.

2 Among others, the court allowed the American Wild Horse Preservation Campaign (“AWHPC”) and the Cloud Foundation to intervene and these organizations filed the declaration of Ginger Kathrens and others. RSGA, ECF 32, 17. Petitioners AWHPC, Cloud Foundation, and Kathrens thus participated in RSGA. It is unclear whether the other petitioners here are in privity with these organizations or also participated. Although BLM does not raise a preclusion defense now, it reserves the right to do so.


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The intervenors had an opportunity to comment on the decree and filed

objections, asserting that BLM could not remove all horses on Checkerboard lands

because there is no practical way to distinguish private and public lands there. RSGA,

ECF 81, 86, 86-1 at 8. The court entered the consent decree in 2013, stating that the

“challenges presented by checkerboard ownership” “do not deprive RSGA of its

rights as a private landowner under Section 4” “nor the deference due the BLM as the

agency with substantial expertise in the management of the HMAs.” 935 F. Supp. 2d

at 1187-88. The court found BLM was obligated to “manage wild horses in this area

consistent with [] Section 4 and further noted that the decree benefited the public,” as

200-300 horses would remain in the White Mountain HMA Checkerboard. Id.

C. 2013 and 2014 Horse Gathers

In 2013 BLM gathered 668 wild horses in the Adobe Town and Salt Wells

HMAs, but removed only 586. See E5 ¶ 19; E11. BLM returned the 82 horses to the

HMAs because it wanted to leave the HMA population at the low end of the HMAs’

Resource Management Plan’s “appropriate management level” range. Id.; 16 U.S.C.

§ 1333(b)(1). The Grazing Association promptly objected, invoking the consent

decree’s dispute resolution process and alleging BLM should have removed all the

horses. E11-15. In response, BLM agreed to revisit its planned 2014 gather. E3 ¶ 8.

BLM concluded that it need to remove about 800 horses on Checkerboard

lands in the Great Divide Basin (394 horses), Salt Wells (402 horses), and Adobe

Town (10 horses) HMAs in 2014 to comply with Section 4, 16 U.S.C. § 1334. See E4;


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E19. In compliance with National Environmental Policy Act (“NEPA”), 42 U.S.C.

§§ 4321 et seq., BLM determined that the categorical exclusion for “[r]emoval of wild

horses [] from private lands at the request of the landowner” applied to the proposal.

516 DM 11.9(D)(4). To make this decision, BLM assembled a team of 11 wild horse

specialists, biologists, range management specialists, and resource managers. The team

considered approximately 13,000 public scoping comments, verified that the proposal

fell within the categorical exclusion’s terms, and reviewed its potential environmental

effects using twelve regulatory criteria. E21-26. After documenting that none of those

criteria applied, BLM concluded that “there are no extraordinary circumstances

potentially having effects that may significantly affect the environment,” and thus a

categorical exclusion applied (an environmental analysis or impact statement was not

needed). E26; 40 C.F.R. §§ 1507.3, 1508.4; 43 C.F.R. § 46.205; Colo. Wild v. U.S. Forest

Serv., 435 F.3d 1204, 1209 (10th Cir. 2006). On July 18, 2014, BLM issued a decision

record to proceed. E31-35.

Petitioners filed suit on August 1, 2014 and their motion for a preliminary

injunction on August 8, 2014. ECF 1, 17. The court denied the motion on August 28,

2014. ECF 35. Petitioners moved for an injunction pending appeal and filed a notice

of appeal the same day. ECF 36-37. The magistrate judge granted a short stay for the

limited purpose of appellate review, ECF 41, which the district court vacated on

September 2, 2014, subject to BLM’s agreement to stay the gather until September 12,


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2014, ECF 51. Petitioners moved for an injunction pending appeal in this Court on

September 2, 2014, asking for relief by 11:59pm, September 11, 2014.

ARGUMENT

As with preliminary injunctions, to obtain an injunction pending appeal,

Petitioners must show that: (1) they are likely to succeed on the merits; (2) they are

likely to suffer irreparable harm in the absence of relief; (3) that the balance of equities

tips in their favor; and (4) the injunction is in the public interest. Winter v. Natural Res.

Def. Council, 555 U.S. 7, 19-20 (2008); Fed. R. App. P. 8(a). Because an injunction is an

extraordinary remedy, “the right to relief must be clear and unequivocal.” Beltronics

USA, Inc. v. Midwest Inventory Dist., 562 F.3d 1067, 1070 (10th Cir. 2009). Petitioners

have not met their burden. Granny Goose Foods v. Teamsters, 415 U.S. 423, 441 (1974).

I. Petitioners have not established a likelihood of success on the merits.

A. BLM complied with the Wild Horses Act.

Petitioners contend (at 6-10) that BLM did not comply with Section 3 of the

Wild Horses Act when it approved the 2014 gather because it did not determine that

the approximately 800 horses proposed for removal from the Checkerboard are

“excess” horses. Petitioners also assert (at 6 n.2) that BLM’s decision to remove the

horses does not comply with Section 3 because doing so will leave the broader, non-

Checkerboard portions of the HMAs with less than their appropriate management

levels. While it is true that Section 4 does not govern public lands, it is equally true

that Section 3 does not govern private lands. Where horses move freely within the


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Checkerboard on unfenced public and private land, BLM cannot disregard its Section

4 obligations to capture horses that stray onto private lands. In the challenging

management landscape presented here, BLM must exercise its discretion to

harmonize its multiple obligations, including the RSGA consent decree. This Court

should defer to BLM’s reasonable solution. 5 U.S.C. § 706; Chevron U.S.A. v. NRDC,

467 U.S. 837, 845 (1984); Newton v. FAA, 457 F.3d 1133, 1136-37 (10th Cir. 2006).

As explained above, under Section 3, BLM is required to remove wild horses

from public lands if those horses are determined to be in excess. 16 U.S.C. § 1333; 43

C.F.R. §§ 4710.4, 4720.1. Under Section 4, if BLM receives a request to remove

horses from private lands, it “shall arrange to have the animals removed.” 16 U.S.C.

§ 1334. Although BLM can exercise discretion as to how and when it removes these

wild horses, the duty to ultimately remove these animals under Section 4 is non-

discretionary. 43 C.F.R. § 4720.2-1 (BLM “shall remove” horses).3

Complying with these obligations in the Checkerboard presents unique

challenges. The government does not own the private lands it conveyed in the

Checkerboard. Leo Sheep, 440 U.S. at 682, 687-88. And under the Unlawful Inclosures

Act, the Grazing Association is prohibited from fencing its lands. Camfield, 167 U.S. at

525-28. It is also prohibited from destroying or removing the wild horses there. 16

U.S.C. §§ 1334, 1338. At the same time, the Grazing Association cannot be

3 BLM does not agree with the district court’s characterization of its Section 4 obligations as “ministerial.” Petitioners’ Ex. 1 at 13-14.


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compensated for any damage that occurs from wild horses grazing on its land.

Mountain States, 799 F.2d at 1431. Recognizing the potential damage that wild horses

can cause, Congress struck a balance between protection of wild horses and the

interests of private landowners. While the Act generally protects wild horses (16

U.S.C. §§ 1334, 1338), it also, in Section 4, requires BLM to remove wild horses from

private lands when requested by landowners to do so.

BLM has found—and Petitioners have admitted—that there is no practical way

to segregate wild horses that reside on private lands from those that reside on public

lands in the Checkerboard at any one point in time.4 E33-34; RSGA, ECF 86-1 at 7-8.

There is thus no way for BLM to comply with Section 4 without also removing horses

from public lands in the Checkerboard, even though those horses have yet to be

determined “excess animals” under the Act. 16 U.S.C. § 1333. But if BLM removes

only excess horses—as Petitioners suggest (at 6) is required—that would leave non-

excess horses on (or soon to be on) the Grazing Associations’ lands, contrary to

Section 4 and BLM’s RSGA consent decree commitments. 16 U.S.C. § 1333; E11-15.

Though Petitioners correctly assert (at 6-7) that Sections 3 and 4 apply to

public and private lands respectively, they are wrong to assert (at 8-9) that Section 3

plainly governs the gather here. The plain language of the Act and regulations simply

4 Petitioners claim (at 12, 15) that BLM must return any wild horses that it removes from private land to neighboring public lands, but there is nothing in the statute or regulations that requires BLM to do so.


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do not speak to what the agency should do when public and private lands are so

intertwined that it is impossible to manage them separately. “It has long been

recognized that many of the responsibilities conferred on federal agencies involve a

broad grant of authority to reconcile conflicting policies.” City of New York v. FCC,

486 U.S. 57, 64 (1988); United States v. Shimer, 367 U.S. 374, 382–83 (1961). Courts will

not disturb an agency’s choice if it “represents a reasonable accommodation of

conflicting policies that were committed to the agency’s care.” City of New York, 486

U.S. at 64. Here, Congress delegated a “high degree of discretionary authority” to

BLM. Watt, 694 F.2d 1316; H.R.Rep. No. 92–681, 92d Cong., 1st Sess. 6–7, 1971

U.S.Code Cong. & Ad.News 2159. BLM reconciled its competing obligations by

deciding to proceed with the 2014 gather on the Checkerboard under Section 4 and its

regulations, even though some horses may, at the time of the gather, temporarily be

located on public lands. ER33-34. This decision harmonizes BLM’s competing

obligations under the Act, its regulations, the case law, and the consent decree.

Petitioners nevertheless insist (at 7-8) that proceeding in such a way creates a

“major exception” to Section 3 that Congress did not intend. Nothing in the statute,

regulations, or the legislative history indicates that Congress intended Section 3 to

trump Section 4 in this unique situation. Congress never intended to create “the

single-use management of areas for the benefit of the wild free roaming horses.”

H.R.Rep. No. 92–681 at 5, 1971 U.S.Code Cong. & Ad.News 2159; S. Rep. No. 92–

242, 92nd Cong., 1st Sess., 1971 U.S.Code Cong. & Ad.News 2149, 2150, 2151–52.


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Indeed, Congress was concerned about too many horses, as well as excessive

management costs, when it amended the Act to provide BLM with more discretion to

manage and remove wild horses. H.R. Rep. No. 95–1122, 95th Cong., 2d Sess. 23

(1978); Pub.L. 95–514, § 2(a)(6), 43 U.S.C. § 1901(a)(6) (Supp. IV 1980).

Petitioners insist (at 8-9) that BLM cannot go forward with the gather because

some of the horses may be removed from public lands in the Checkerboard. This

insistence effectively asks this Court to ignore Section 4 and substitute its view of the

Wild Horses Act in place of the solution developed by BLM. While Petitioners would

have reached a different conclusion, this Court should defer to BLM’s considered

judgment and reasonable resolution of the demands of its multiple obligations.

Newton, 457 F.3d at 1136-37; 5 U.S.C. § 706.

Petitioners also suggest, at 9-10, that the gather is designed to “preemptively”

prevent horses from straying on private lands to solve a “hypothetical” problem that

BLM is not required to address. Petitioners mischaracterize the gather—which is not

a preemptive solution to a hypothetical problem, but a carefully considered response

to a decades-old management challenge presented by the unique pattern of

Checkerboard land ownership, the statutory prohibition on fencing these lands, and

the fact that horses repeatedly roam on and off private lands there. E3 ¶¶ 10-11.

BLM seeks to discharge its Section 4 duty and comply with the RSGA consent

decree in a way that resolves conflicting obligations in a landscape presenting unique

and difficult management issues. E19. BLM’s decision to proceed under Section 4 is


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reasonable. This Court should not substitute its judgment for that of BLM’s,

particularly when there is no indication that the result “is not one that Congress would

have sanctioned.” City of New York, 486 U.S. at 64. Petitioners have failed to

demonstrate that they are likely to succeed on the merits of this claim.

B. BLM complied with NEPA.

Petitioners allege (at 11-13) that BLM failed to conduct “any environmental

analysis” under NEPA when it decided that the proposed gather fell within a

categorical exclusion. But the record shows that BLM fully considered its proposals’

environmental effects, reasonably concluded that the gather fell within a categorical

exclusion and did not need more analysis, and thus complied with NEPA.

NEPA regulations authorize agencies to use categorical exclusions for “actions

which do not individually or cumulatively have a significant effect on the human

environment.” 40 C.F.R. §§ 1508.4, 1507.3(b)(2). BLM determined that the proposed

gather fell into the agency’s categorical exclusion for “[r]emoval of wild horses or

burros from private lands at the request of the landowner.” 516 DM 11.9(D)(4)

(Petitioners’ Ex. 7); 43 C.F.R. §§ 46.205, 46.215. Although BLM acknowledged that it

would remove horses on both private and public lands, it reasonably decided to

proceed under the categorical exclusion because the gather was developed to comply

with its Section 4 obligations to remove wild horses from the private lands in the

Checkerboard, and there was no way to do so without also removing horses from

unfenced interspersed public lands. E33-34.


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BLM next considered whether there were any “extraordinary circumstances”

outlined in 43 C.F.R. § 46.215 that would cause the proposed gather to have a

significant environmental effect and thus require an environmental assessment or

impact statement. 43 C.F.R. §§ 46.205(c), 46.215; 40 C.F.R. § 1508.4; Colorado Wild v.

U.S. Forest Serv., 435 F.3d 1204, 1209 (10th Cir. 2006). BLM considered, among other

things, whether the gather would result in significant impacts on natural and cultural

resources, drinking water aquifers, threatened or endangered species, or other

ecologically significant or critical areas. E21-25. BLM relied on a team of 11

specialists, including a Wild Horse and Burro Specialist, a Rangeland Management

Specialist, a Wildlife Biologist, a Botanist, an Archeologist, a Riparian Specialist, and

various field managers. E26. BLM’s experts observed that, because Checkerboard

land has been managed for wild horses for decades, the effects of gather operations

on horses, the environment, and other resources are “well understood” with “no

unique or unknown risks.” E22-26. BLM’s experts concluded that “[t]his removal is

not expected to create significant environmental impacts to any resource.” E23; E22,

E24-25. BLM also considered the Petitioners’ and others’ comments provided during

the 2013 public scoping process for the originally proposed gather.5 E34.

5 Petitioners cannot credibly claim, as they do (at 10), that the gather is “non-transparent” and “hasty,” in light of their (and the public’s) participation in the 2013 scoping process and in the litigation that resulted in the entry of the consent decree.


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BLM reasonably concluded that “the categorical exclusion is appropriate in this

situation because there are no extraordinary circumstances potentially having effects

that may significantly affect the environment.” E31. This determination is entitled to

deference. See Citizens’ Comm. to Save Our Canyons v. U.S. Forest Serv., 297 F.3d 1012,

1023 (10th Cir. 2002); Town of Superior v. U.S. Fish & Wildlife Serv., 913 F. Supp. 2d

1087, 1100-01 (D. Colo. 2012). No further NEPA analysis was required. Utah Envtl.

Cong., 518 F.3d at 821; Citizens Comm., 297 F.3d at 1023.

Petitioners do not contend that BLM’s analysis of the gather’s potential

environmental impacts was inaccurate. Rather, they assert (at 12) that BLM Manual

§ 4720.2.21, which governs Section 3 removal of horses, required more analysis. Not

so. BLM determined the gather would be undertaken pursuant to Section 4 of the Act

and did not purport to remove excess horses in the three HMAs under Section 3.

E33-34. The Manual’s guidance is therefore inapplicable. Finally, the language quoted

by Petitioners states only that BLM should prepare an “appropriate NEPA analysis,”

leaving the agency to determine what kind of analysis is appropriate. BLM Manual

§ 4720.2.21(C)(6) (Petitioners’ Ex. 6). BLM reasonably determined here that the

analysis it completed under the categorical exclusion was appropriate.

Petitioners also assert (at 12-13) that BLM improperly relied on the categorical

exclusion listed in 516 DM 11.9(D)(4) because the gather will remove horses from

both private and public lands. BLM does not dispute that 516 DM 11.9(D)(4) refers

only to the removal of horses from private lands. See Petitioners’ Ex. 7. Still, BLM is


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wholly within its authority to gather horses from the Checkerboard under that

category. “[O]nce an agency establishes categorical exclusions, its decision to classify a

proposed action as falling within a particular categorical exclusion will be set aside

only if a court determines that the decision was arbitrary and capricious.” Citizens’

Comm., 297 F.3d at 1023; Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 171

(2007); Auer v. Robbins, 519 U.S. 452, 461 (1997).

BLM’s choice here was reasonable. As explained above, BLM was required to

remove these horses from the Checkerboard under Section 4 of the Wild Horses Act

and the RSGA consent decree. Further, the unique nature of the Checkerboard and

the lack of boundary fencing enables wild horses to travel freely back and forth

between public and private lands therein, making it “practically infeasible” to remove

wild horses only from private lands. E34; E3 ¶¶ 10-11; RSGA, 935 F. Supp. 2d at

1187-88; American Horse Protection Assoc. v. Andrus, 460 F. Supp. 880, 885 (D. Nev.

1978) (“The only practical way this mandate [under Section 4] can be honored in an

unfenced checkerboard area is by removal of all the horses.”), rev’d in part on other

grounds, 608 F.2d 811 (9th Cir. 1979). Given it obligations to remove the horses and

the practical limitations on removing horses from Checkerboard lands, BLM’s reliance

on 516 DM 11.9 (D)(4) was reasonable. Petitioners cannot credibly assert that BLM

failed to “articulate a ‘rational connection between the facts found and the decision

made.’” Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1574 (10th Cir. 1994) (citing

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Ins. Co., 463 U.S. 29, 43 (1983)).


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In sum, BLM properly determined that the gather fell under a categorical

exclusion, would not result in extraordinary circumstances that could cause significant

environmental harm, and thus did not require further environmental analysis.

Petitioners’ arguments to the contrary reflect nothing more than dissatisfaction with

the choices BLM made. That dissatisfaction is insufficient to meet Petitioners’ high

burden of proof. Petitioners cannot show a likelihood of success on the merits.

II. Petitioners have not established irreparable injury.

An injunction should only issue if it is “needed to guard against any present or

imminent risk of likely irreparable harm.” Monsanto Co. v. Geertson Seed Farms, 561 U.S.

139, 162-63 (2010). Petitioners bear the burden of demonstrating that the gather is

likely to result in a concrete and actual injury to their interests that is “irreparable,”

meaning it is “both certain and great,” and not “merely serious or substantial.” Prairie

Band of Potawatomi Indians v. Pierce, 253 F.3d 1234, 1250 (10th Cir. 2001) (citations

omitted). Harm is not presumed in cases that involve alleged violations of

environmental statutes. Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 544-545

(1987); Fund for Animals v. Lujan, 962 F.2d 1391, 1400 (9th Cir. 1992); Lands Council v.

McNair, 537 F.3d 981, 1005 (9th Cir. 2008). Petitioners cannot show irreparable harm.

Petitioners claim (at 13-14) their interests will be harmed if they are no longer

able to see particular horses and horse families they have come to know. But, as one

court observed, there is no “enforceable right to observe a particular number of

animals, and it is sheer speculation that any particular individual or family unit will be


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affected.” In Defense of Animals v. Interior, 737 F. Supp. 2d 1125, 1138 (E.D. Cal. 2010);

Foster Decl. ¶ 14; Water Keeper Alliance v. U.S. Dep’t of Def., 271 F.3d 21, 34 (1st Cir.

2001). Petitioners will still be able to observe herds in the majority of the Great

Divide Basin, Salt Wells Creek, and Adobe Town HMAs after the gather. BLM is not

removing horses from non-Checkerboard lands, which comprise most of the HMAs

and are where roughly 1100 horses will remain. E3-4 ¶¶ 9, 13. These lands provide

unrestricted public access with ample viewing and photographic opportunities. E4

¶ 14. Even in Checkerboard lands, Petitioners may still view 200-300 horses in the

White Mountain HMA. E4 ¶ 12. And as past experience shows, the number of horses

will soon increase (by ~20% per year). E4 ¶¶ 13-14; 737 F. Supp. 2d at 1138.

Petitioners assert (at 14-15) that they will be harmed emotionally as a result of

horse bands being separated by the gather. BLM’s expert declarant, however, has

made clear that “wild horses within these HMAs have adapted and form new bands

after a gather.” E4-5 ¶ 15. Thus, even if there was a recognizable band disruption and

that disruption harms Petitioners (a claim unsupported by any scientific evidence), any

such disruption would be temporary and therefore not irreparable.

Finally, while declarants Walker and Curyl state that they visit the HMAs at

issue, they make no attempt to distinguish the location of their activities between

Checkerboard and non-Checkerboard lands within the HMAs. See Petitioners’ Ex. 8 at

¶¶ 3, 4, 9; Petitioners’ Ex. 9, at ¶¶ 5, 6, 9. Declarant Kathrens does not even mention

visiting HMA Checkerboard lands. Petitioners’ Ex. 10 at ¶¶ 4-5. In light of the


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foregoing, they have not shown irreparable harm with respect to this particular gather

on Checkerboard lands.

III. The balance of the equities and the public interest weigh against an injunction pending appeal.

If Petitioners’ motion is granted, substantial injury will be suffered by the

public. Checkerboard land management requires collaboration between public and

private land ownership. For decades, the Grazing Association and BLM have worked

together to manage this challenging land pattern. Although there have been disputes,

the consent decree furthers this working relationship and benefits the public,

including Petitioners, because it allows BLM to maintain wild horses on the Grazing

Association’s lands when it would not otherwise be able to do so. 935 F. Supp. 2d at

1188; E4 ¶ 12.

Moreover, compliance with a consent decree, entered as a court order,

undoubtedly serves the public interest. E74 ¶ 7; Cf. United States v. Asarco, Inc., 430

F.3d 972, 983 (9th Cir. 2005) (purpose of a consent decree is “to enable parties to

avoid the expense and risk of litigation”). Enjoining the gather would also interfere

with BLM’s mandate to manage for other uses within the Checkerboard, New Mexico

v. Bureau of Land Management, 565 F.3d 683, 710 (10th Cir. 2009), which serves the

public interest. E75 ¶ 10. Finally, a delay of the removal would negatively impact BLM

financially, possibly costing more than $100,000. E74-75 ¶¶ 8-9; E5 ¶ 18.


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In light of the harm to the public interest that would result from an injunction,

the equities tip sharply in BLM’s favor. In Defense of Animals v. Salazar, 675 F. Supp. 2d

89, 98 (D.D.C. 2009) (gather serves public interest); Habitat for Horses v. Salazar, 745 F.

Supp. 2d 438, 458 (S.D.N.Y. 2010) (same); Cloud Found. v. BLM, 802 F. Supp. 2d 1192,

1209 (D. Nev. 2011) (same); In Defense of Animals, 737 F. Supp. 2d at 1139 (same);

Lands Council, 537 F.3d at 1005. Implementation as proposed far outweighs any

perceived emotional harm suffered by Petitioner’s inability to see particular horses or

horse bands on interspersed private lands in the Checkerboard.

CONCLUSION

BLM is a land stewardship agency charged with an “enormously complicated

task.” Norton v. SUWA, 542 U.S. 55, 56 (2004). The record shows that the agency has

made a considered judgment on the discharge of its responsibilities. For the foregoing

reasons, this Court should deny Petitioner’s motion. If the Court does not vacate the

temporary injunction or grants the motion for injunction pending appeal, BLM

requests a remand to the district court to determine the appropriate amount of a bond

under Fed. R. Civ. P. 65(c).

Respectfully submitted, SAM HIRSCH

Acting Assistant Attorney General s/ Thekla Hansen-Young ANDREW C. MERGEN MARK R. HAAG COBY HOWELL


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MICHAEL THORP THEKLA HANSEN-YOUNG Attorneys, U.S. Dep’t of Justice Env’t & Natural Resources Div. P.O. Box 7415 (Ben Franklin Station) Washington, DC 20044 (202) 307-2710 [email protected]

September 5, 2014


CERTIFICATES OF SERVICE, DIGITAL SUBMISSIONS AND PRIVACY REDACTIONS

I hereby certify that on this 5th day of September, 2014, before 5pm Mountain

Time, I electronically filed the foregoing with the Clerk of the Court for the United

States Court of Appeals for the Tenth Circuit via the appellate CM/ECF system. The

parties in this case will be served electronically by that system.

I hereby certify that I have scanned for viruses the Portable Document Format

version of the attached document using our current version of Endpoint Protection

(Sept 5 2014) (version 1.183.1735.0). I further certify that I have not made any privacy

redactions in the attached document. Thus, with the exception of the electronic

signatures, the Portable Document Format version that was submitted to the court is

an exact copy of the written document filed with the Clerk.

s/ Thekla Hansen-Young Thekla Hansen-Young Environment & Natural Resources Div. United States Department of Justice P.O. Box 7415 (Ben Franklin Station) Washington, DC 20044 (202) 307-2710 [email protected]
