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,

-v.-

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. Dept 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. Dept of Justice
Envt & Natural Resources Div.
P.O. Box 7415 (Ben Franklin Station)
Washington, DC 20044
(202) 307-2710
thekla.hansen-young@usdoj.gov
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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. Dept 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. 92242, 92nd Cong., 1st Sess., 1971 U.S. Code Cong. & Ad. News
2149, ......................................................................................................................................... 11

H.R. Rep. No. 92681, 92d Cong., 1st Sess. 67, 1971 U.S. Code Cong. & Ad. News
2159, ...................................................................................................................................... 11

H.R. Rep. No. 951122, 95th Cong., 2d Sess. 23 (1978) .................................................. 12

MISCELLANEOUS:

BLM Manual 4720.2.21 ....................................................................................................... 15
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INTRODUCTION
This case concerns BLMs 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 landsan 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
areaincluding land owned by Respondent-Intervenor Rock Springs Grazing
Associationcannot 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 Assn v. Salazar, 935 F. Supp. 2d 1179
(D. Wyo. 2013) (Case No. 11cv263) (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 Associations] 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
BLMs decision and now seek an emergency stay of the gather pending their appeal of
the district courts 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 Acts 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. Assn 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. Dept of the Interior, 751 F.3d 1054, 1059 (9th Cir. 2014).
BLMs 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. BLMs 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 sectionone
square mileof 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 governments
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 BLMs 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 Plans appropriate management level range. Id.; 16 U.S.C.
1333(b)(1). The Grazing Association promptly objected, invoking the consent
decrees 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 exclusions 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 BLMs 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 BLMs 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 BLMs 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 courts 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 foundand Petitioners have admittedthat 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 horsesas Petitioners suggest (at 6) is requiredthat would leave non-
excess horses on (or soon to be on) the Grazing Associations lands, contrary to
Section 4 and BLMs 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, 38283 (1961). Courts will
not disturb an agencys choice if it represents a reasonable accommodation of
conflicting policies that were committed to the agencys 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. 92681, 92d Cong., 1st Sess. 67, 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 BLMs 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. 92681 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, 215152.
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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. 951122, 95th Cong., 2d Sess. 23
(1978); Pub.L. 95514, 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 BLMs 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 gatherwhich 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. BLMs decision to proceed under Section 4 is
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reasonable. This Court should not substitute its judgment for that of BLMs,
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 agencys 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. BLMs 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. BLMs 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 publics) 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 BLMs analysis of the gathers 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 Manuals 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).
BLMs 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.), revd 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, BLMs 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. Assn 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. Dept 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. BLMs 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
Associations 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 BLMs 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 BLMs 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 Petitioners 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 Petitioners 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. Dept of Justice
Envt & Natural Resources Div.
P.O. Box 7415 (Ben Franklin Station)
Washington, DC 20044
(202) 307-2710
thekla.hansen-young@usdoj.gov
September 5, 2014
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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
thekla.hansen-young@usdoj.gov


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