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Case 2:14-cv-00152-NDF Document 69 Filed 01/20/15 Page 1 of 55

Case No. 14-0152


IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
AMERICAN WILD HORSE PRESERVATION CAMPAIGN, CLOUD
FOUNDATION, RETURN TO FREEDOM, CAROL WALKER, GINGER
KATHRENS, AND KIMERLEE CURYL,
Petitioners,
v.
UNITED STATES DEPARTMENT OF THE INTERIOR et al.,
Respondents,
ROCK SPRINGS GRAZING ASSOCIATION,
and
STATE OF WYOMING,
Respondent Intervenors.

Petition for Review of Decision by the Bureau of Land Management Wyoming


ROCK SPRINGS GRAZING ASSOCIATION RESPONSE BRIEF
Supplemental Appendix Volumes 1 thru 2 in Written Form Only
ORAL ARGUMENT REQUESTED
CONSTANCE E. BROOKS
CODY DOIG
C. E. Brooks & Associates P.C.
303 East 17th Avenue, Ste. 650
Denver, CO 80203
(303) 297-9100

Case 2:14-cv-00152-NDF Document 69 Filed 01/20/15 Page 2 of 55

Respondent Intervenors Disclosure Statement Fed. R. App. P. 26.1(a)


The Rock Springs Grazing Association is incorporated pursuant to
Wyoming law as a privately-held corporation. RSGA is not owned by a parent
company and none of its shares is publicly traded.

Case 2:14-cv-00152-NDF Document 69 Filed 01/20/15 Page 3 of 55

TABLE OF CONTENTS
Page
Respondent Intervenors Disclosure Statement Fed. R. App. P. 26.1(a). . . . . . . . . i
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
I.

JURISDICTIONAL STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II.

STATEMENT OF THE ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . 2

III.

SUPPLEMENTAL STATEMENT OF THE CASE AND FACTS. . . . . . . . . 2


A.

Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

B.

Supplemental Statement of Facts.. . . . . . . . . . . . . . . . . . . . . . . . . . 4

C.

1.

Historical Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

2.

Environmental Impacts of Wild Horse Grazing. . . . . . . . . . . . 8

3.

Greater Sage-grouse Core Areas. . . . . . . . . . . . . . . . . . . . . . 10

4.

Gathers Have Limited Environmental Impacts . . . . . . . . . . . 11

2011 Litigation and 2013 Consent Decree. . . . . . . . . . . . . . . . . . . . 12


1.

Implementation of the 2013 Consent Decree. . . . . . . . . . . . . 14

2.

2014 BLM Decision Record. . . . . . . . . . . . . . . . . . . . . . . . . 16

SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

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LEGAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
IV.

REMOVAL OF WILD HORSES FROM THE CHECKERBOARD


CONFORMS TO THE WILD HORSE ACT. . . . . . . . . . . . . . . . . . . . 20
A.

BLM Discretion to Manage Wild Horses on Public and Private Land


is Limited When Landowners Do Not Agree to Maintain Wild
Horses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

B.

1.

Section 3 Governs Wild Horses on Public Land. . . . . . . . . . 21

2.

Section 4 Establishes Landowner Rights. . . . . . . . . . . . . . . . 23

The Decision Is a Reasonable Interpretation of WHA. . . . . . . . . . . 27


1.

BLMs Decision Reflects a Coherent Regulatory Scheme. . . . 27

2.

The BLMs Construction of the WHA Is Entitled to


Deference. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

3.
V.

Long Standing Practice and Policy. . . . . . . . . . . . . . . . . . . . 32

THE CATEGORICAL EXCLUSION FULLY COMPLIES WITH NEPA


. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
A.

CTX Authorized for Section 4 Wild Horse Gathers. . . . . . . . . . . . 35

B.

NEPA Procedures Limited When BLM Has No Discretion to Not


Gather. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

C.

Past Gathers Were to Maintain AMLs Within HMAs, Not to Remove


Wild Horses From Private Lands. . . . . . . . . . . . . . . . . . . . . . . . . . 41

III.

2014 WILD HORSE GATHER COMPLIED WITH FLPMA . . . . . . . 41

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

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TABLE OF AUTHORITIES
CASES

PAGE

Alaska Ctr. for the Envt v. United States Forest Service, 189 F.3d 851
(9th Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37, 39
Am. Horse Prot. Assn, Inc. v. Frizzell, 403 F. Supp. 1206 (D. Nev. 1975). . . . . 22
Am. Horse Prot. Assoc. v. Andrus, 460 F. Supp. 880 (D. Nev. 1978), revd in part
on other grounds, 608 F.2d 811 (9th Cir. 1979). . . . . . . . . . . . . . . . . . . . . . . 28
Am. Horse Prot. Assoc. v. Watt, 694 F.2d 1310 (9th Cir. 1982). . . . . . . . . . . . . 44
Animal Prot. Inst. of Am., et al., 118 IBLA 63 (1991). . . . . . . . . . . . . . 32, 42, 43
Camfield v. United States, 167 U.S. 518 (1897). . . . . . . . . . . . . . . . . . . . . . . . . 30
Center for Biodiversity v. Salazar, 706 F.3d 1085 (9th Cir. 2013). . . . . . . . . . . . 40
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 27
Citizens Comm. to Save Our Canyons v. U.S. Forest Serv., 297 F.3d 1012 (10th
Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Cloud Found. v. U.S. Bureau of Land Mgmt., 2013 WL 1249814 (D. Nev. 2013),
appeal dismissed (Sept. 11, 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 40
Colo. Interstate Gas Co. v. FERC, 791 F.2d 803 (10th Cir.1986). . . . . . . . . . . . 32
Colorado Wild v. United States Forest Service, 435 F.3d 1204
(10th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Coyt v. Holder, 593 F.3d 902 (9th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . 21
Dahl v. Clark, 600 F. Supp. 585 (D. Nev. 1984). . . . . . . . . . . . . . . . . . . . . . . . 43
Fallini v. Hodel, 783 F.2d 1343 (9th Cir. 1986). . . . . . . . . . . . . . . . . . . 23, 28, 30
Gustafson v. Alloyd Co., 513 U.S. 561 (1995). . . . . . . . . . . . . . . . . . . . 21, 24, 29
In Def. of Animals v. Salazar, 675 F. Supp. 2d 89 (D. D.C. 2009). . . . . . . . . . 26
In Def. of Animals v. U.S. Dept of Interior, 737 F. Supp. 2d 1125
(E.D. Cal. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

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TABLE OF AUTHORITIES (contd.)


In Def. of Animals v. U.S. Dept of Interior, 909 F. Supp. 2d 1178, (E.D. Cal.
2012) affd sub nom. In Def. of Animals, Dreamcatcher Wild Horse
& Burro Sanctuary v. U.S. Dept of Interior, 751 F.3d 1054
(9th Cir. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
King v. St. Vincents Hosp., 502 U.S. 215 (1991). . . . . . . . . . . . . . . . . . . . . . . 24
McGraw v. Barnhard, 450 F.3d 493 (10th Cir. 2006). . . . . . . . . . . . . . . . . . . . 31
Michigan Citizens for an Index. Press v. Thornburgh, 868 F.2d 1285 (D.C. Cir.)
aff'd by equally divided court, 493 U.S. 38 (1989). . . . . . . . . . . . . . . . . . . . . 21
Morris v. U.S. Nuclear Regulatory Commn, 598 F.3d 677 (10th Cir. 2010). . . . 18
Motor Vehicle Mfrs. Assn. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29
(1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Mountain States Legal Found., et al. v. Andrus, Civ. No. 79-275k
(D. Wyo. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 32
Mountain States Legal Found. v. Hodel, 799 F.2d 1423
(10th Cir. 1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 29, 33, 42
Red Wings Horse Sanctuary, et al., 148 IBLA 61 (1999). . . . . . . . . . . . . . . . . . 27
Roaring Springs Associates v. Andrus, 471 F. Supp. 522
(D. Or. 1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 28, 29
Rock Springs Grazing Assn. v. Salazar, 935 F. Supp.2d 1179
(D. Wyo. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
S. Utah Wilderness Alliance v. Bureau of Land Mgmt., 425 F.3d 735
(10th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Sac & Fox Nation of Missouri v. Norton, 240 F.3d 1250
(10th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 35, 40
Skidmore v. Swift & Co., 323 U.S. 134 (1944). . . . . . . . . . . . . . . . . . . . . . . . . 30
United States v. Mead Corp., 533 U.S. 218 (2001). . . . . . . . . . . . . . . . . . . . . . . 30
U.S. v. Turkette, 452 U.S. 576 (1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

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TABLE OF AUTHORITIES (contd.)


Utah Envtl. Cong. v. Bosworth, 443 F.3d 732 (10th Cir. 2006). . . . . . . . . . . . . 20
Utah v. Babbitt, 137 F.3d 1193 (10th Cir. 1998). . . . . . . . . . . . . . . . . . . . . . . . . 18
Vaquero Cordero v. Holder, 498 F. Appx 760 (10th Cir. 2012). . . . . . . . . . 3, 32
W. Energy Alliance v. Salazar, 2011 WL 3737520, appeal dismissed for lack
of finality, 709 F.3d 1040 (10th Cir. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . 25
STATUTES

PAGE

5 U.S.C. 701-706. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
5 U.S.C. 706. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
5 U.S.C. 706(2)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
16 U.S.C. 1332(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
16 U.S.C. 1333. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 28
16 U.S.C. 1333(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 29
16 U.S.C. 1333(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 41
16 U.S.C. 1334. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
16 U.S.C. 1533(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
28 U.S.C. 1331. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
43 U.S.C. 315a. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
43 U.S.C. 1752. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
REGULATIONS

PAGE

40 C.F.R. 1500.4(p). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35, 36


40 C.F.R. 1500.5(k). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35, 36
43 C.F.R. 1610.3-2(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
43 C.F.R. 4710.4.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
43 C.F.R. 4720.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 41
43 C.F.R. 4720.2-1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 33

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TABLE OF AUTHORITIES (contd.)


AGENCY GUIDELINES

PAGE

BLM 516 Department Manual NEPA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36


BLM Handbook 4700-1 Wild Horses and Burros Management
Handbook. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 25, 42, 43
Instruction Memorandum WY-2010-012 Greater Sage-Grouse Habitat
Management Policy on Wyoming Bureau of Land Management
(BLM) Administered Public Lands including the Federal Mineral Estate. . 10
OTHER

PAGE

L.R. Civ. P. 83.6(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1


75 Fed. Reg. 13910 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
H.R. Rep. No. 92-681, 92d Cong., 1st Sess. (1971) reprinted 1971
U.S. Code & Cong. Admin. News 2149. . . . . . . . . . . . . . . . . . . . . . 22, 44
S. Rep. No. 92-242, 92d Cong., 1st Sess., reprinted in reprinted 1971
U.S. Code & Cong. Admin. News 2149. . . . . . . . . . . . . . . . . . . . . . 30, 44

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INTRODUCTION
Pursuant to L.R.Civ.P. 83.6(c), Respondent-Intervenor, the Rock Springs
Grazing Association (RSGA) files its Response Brief in support of the decision of the
Respondents, Bureau of Land Management (BLM) to remove wild horses from the
Wyoming Checkerboard pursuant to the August 2014 decision record and categorical
exclusion and in conformance with the request for removal by RSGA and the Consent
Decree approved by this Court in Rock Springs Grazing Assn. v. Salazar, 935 F.
Supp.2d 1179 (D. Wyo. 2013) (RSGA). See Supplemental Appendix (Supp. App.)
12, Administrative Record (AR) 3369-3380; Supp. App. 11, AR 3356-3368 .1
I.

JURISDICTIONAL STATEMENT
Petitioners, the American Wild Horse Preservation Campaign, Cloud

Foundation, Return to Freedom, Carol Walker, Ginger Kathrens, and Kimerlee Curyl,
(hereafter wild horse advocacy groups or WHAG) seek review of the 2014 Decision
Record (Decision) and Categorical Exclusion (CTX) pursuant to 28 U.S.C. 1331, and
the Administrative Procedure Act (APA), 5 U.S.C. 706.
1

References to the record are to the page numbers in the administrative record (AR)
or to this Court's docket entries as indicated by the electronic case filing number or
ECF No. RSGA submits a Supplemental Appendix where Petitioners Appendix
(Petrs. App.), ECF No. 68, contains only excerpted pages.
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Respondent Intervenor RSGA Response Brief

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II.

STATEMENT OF THE ISSUES PRESENTED


1.

Whether BLM correctly determined that the ministerial duty in Section

4 of the Wild Free-Roaming Horse sand Burros Act (WHA) requiring removal of
wild horses at the request of a landowner and the terms of the 2013 settlement
approved by this Court in RSGA v. Salazar, 935 F. Supp.2d 1179 (D. Wyo. 2013)
govern the removal of wild horses on the Wyoming Checkerboard;
2.

Whether BLM complied with the National Environmental Policy Act

(NEPA) by preparing a decision record supported by a categorical exclusion to


remove wild horses from the Wyoming Checkerboard;
3.

Whether a wild horse gather pursuant to Section 4 of the WHA can

proceed even if wild horse numbers may drop below the appropriate management
levels for public lands adopted in the resource management plan (RMP).
III.

SUPPLEMENTAL STATEMENT OF THE CASE AND FACTS


A.

Statement of the Case

On August 1, 2014, Petitioners sought review of the BLM decision to gather


wild horses located on the Wyoming Checkerboard on the basis that it violated the
WHA, NEPA and the Federal Land Management and Policy Act (FLPMA). ECF

Page 2

Respondent Intervenor RSGA Response Brief

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No. 1. RSGA and the State of Wyoming filed motions to intervene. ECF Nos. 13,
14 and 21, and this Court granted the motions. ECF Nos. 22, 28. Petitioners
requested a temporary restraining order or preliminary injunction on August 8, 2014
and the Respondents and Intervenors filed opposition briefs in accordance with a
stipulated briefing schedule. ECF Nos. 29, 31.
This Court denied the request for a preliminary injunction on August 28, 2014
finding that Petitioners were unlikely to succeed on the merits and that the balance of
harm favored allowing the gather to proceed. ECF No. 35. In the Memorandum and
Order, this Court recognized that the BLM is forced to manage the alternating land
pattern of the Checkerboard as a single unit. ECF No. 35 at 12 (citing Mountain
States Legal Found. v. Hodel, 799 F.2d 1423, 1434-35 (10th Cir. 1986); RSGA, 935
F. Supp.2d at 1187-88. This Court further concluded that RSGA made a clear,
certain and adequate demand under Section 4, triggering a positive, ministerial duty
to remove the stray horses as soon as possible and RSGA is entitled to this removal
without unreasonable delay or intensive management of straying horses on the
Checkerboard in violation of the policy and spirit of the WHA. Id. at 13-14.

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Respondent Intervenor RSGA Response Brief

Case 2:14-cv-00152-NDF Document 69 Filed 01/20/15 Page 12 of 55

Petitioners sought to stay the denial of the preliminary injunction pending


appeal, ECF No. 36, and filed a notice of appeal. ECF No. 37. Petitioners were
denied injunctive relief from the Tenth Circuit Court of Appeals on September 12,
2014 and withdrew their notice of appeal to the Tenth Circuit on September 29, 2014.
ECF No. 57. BLM proceeded to gather the wild horses starting in mid-September.
ECF No. 59. This Court issued a briefing schedule on November 17, 2014 after
BLM filed the administrative record on November 4, 2014. ECF No. 63.
B.

Supplemental Statement of Facts


1.

Historical Background

There are slightly more than two million acres of Wyoming Checkerboard at
issue in this case. ECF No. 31-4, Exhibit (Ex.) 3, Declaration of John W. Hay, III
(Hay Decl.) 3. RSGA owns and leases about 1,044,480 acres of private land located
within the Wyoming Checkerboard. Id. 4. RSGA also holds the grazing permit for
about 999,000 acres of the adjacent public land sections pursuant to the Taylor
Grazing Act (TGA), 43 U.S.C. 315a, and FLPMA, 43 U.S.C. 1752. Id. BLM often
refers to the Rock Springs Allotment as including the private and public lands.

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Respondent Intervenor RSGA Response Brief

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RSGA has managed its private lands in concert with the unfenced alternating
public land sections since the early part of the 20th century. Id. 8. RSGA and BLM
have coordinated the use and management of these lands through an informal
partnership. Id. 9. Examples of this partnership include the grazing permit, oil and
gas unit agreements, and concurrent rights-of-way documents. Any decision or action
by BLM with regard to the public lands directly affects how RSGA uses its private
lands. Id. 17-21.
Shortly after enactment of the WHA, the wild horse numbers overran the
forage, riparian areas, and other rangeland resources. Id. 10; ECF No. 31-6, Ex.5,
Declaration of John Eversole (Eversole Decl.) 4. RSGA and wild horse groups
reached an agreement in January 1979 that RSGA would tolerate 500 wild horses on
the Checkerboard and 1,000 wild horses on the solid block public lands to the north
and south of the Checkerboard. ECF No. 31-4, Ex.3, Declaration of Donald M.
Schramm (Schramm Decl.) 6. This agreement was contingent on BLM proving that
it could maintain the wild horse herd to the agreed numbers, which were based on
the parties estimate of the number of wild horses in the Rock Springs District when

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Respondent Intervenor RSGA Response Brief

Case 2:14-cv-00152-NDF Document 69 Filed 01/20/15 Page 14 of 55

the WHA was adopted, and confirmed by BLM and Wyoming Game and Fish
Department (WGFD) counts. Id. 6-7.
When BLM cancelled the wild horse gather on RSGAs land, RSGA sued to
compel removal of the wild horses under Section 4 of the WHA. ECF No. 31-4, Ex.
3C and 3D, Mountain States Legal Foundation (MSLF), RSGA v. Andrus, Civ. No.
79-275K (D. Wyo. 1981). In 1981, the Court concluded that Section 4 supported the
RSGA request for removal and ordered BLM to gather all wild horses from the
Checkerboard, except that number which the RSGA had voluntarily agreed to leave
in the area (500 wild horses).2 Id.; ECF No. 31-4, Schramm. Decl. 6,7. The Big
Sandy Grazing Environmental Statement (ES) set the AMLs for Salt Wells, White
Mountain, and Divide Basin areas in 1982. ECF No. 31-4, Ex. 3, Schramm Decl. 7.
The AMLs were incorporated into Judge Kerrs Order Amending the Judgment Nunc
per Tunc. Id. All horses on the Checkerboard above the agreed upon level are excess
within the meaning of 16 U.S.C. 1332(f). Id.

The Judge Kerr orders applied to the entire Rock Springs District, not merely the
Checkerboard area at issue in this case. In 1979, the Rock Springs District
encompassed all of the BLM Rock Springs Field Office, part of the Kemmerer and
Pinedale Field Offices.
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Respondent Intervenor RSGA Response Brief

Case 2:14-cv-00152-NDF Document 69 Filed 01/20/15 Page 15 of 55

The Big Sandy ES set the following wild horse population objectives for lands
within the Rock Springs District: Big Sandy solid block 600; Salt Wells Checkerboard
500; Salt Wells Pilot Butte solid block 400, and Pinedale 25. The total number of
wild horses in the Rock Springs District was 1,525 which was consistent with the 1979
agreement between RSGA and the wild horse groups. BLM retained the AML
numbers from 1982 and again in the Green River RMP. Id.; Supp. App. 1, AR1,
AR41, AR91.
There are about 2.4 million acres of land within the Salt Wells, White
Mountain, GDB, and AT HMAs, and about 50 percent is in the Wyoming
Checkerboard. ECF No. 31-12, Ex.11, BLM Fact Sheet for the Wild Horse Gather
in the Checkerboard (August 2014). The RSGA Checkerboard lands include b of
the Salt Wells Creek (SW) HMA, about 75% of the White Mountain (WM) HMA,
about a of the Great Divide Basin (GDB) HMA, plus 30,000 acres of the Adobe
Town (AT) HMA. ECF No. 31-4, Schramm Decl. 12. BLM recognized that the
wild horses move freely between the SW and AT HMAs and now manages the two
HMAs as a single complex with a combined AML of 861-1165. Supp. App. 4,
AR636. The White Mountain HMA whose AML of between 205 and 250 wild

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horses was not part of the 2014 DR and CTX, because RSGA agreed to allow wild
horses on its land. ECF No. 31-17, Ex. 16, 2013 Consent Decree, 1.
2.

Environmental Impacts of Wild Horse Grazing

Wild horses grazing on the Checkerboard have documented adverse impacts on


rangeland resources and wildlife habitat. ECF No. 31-5, Ex.4, Declaration of Wayne
Burkhardt (Burkhardt Decl.) 10, 14; ECF No. 31-6, Ex. 5, Eversole Decl. 3-5;
ECF No. 31-8, Ex. 7, Declaration of Eddie Lopez, (Lopez Decl.) 4-7; ECF No. 317, Ex. 6, Declaration of Niels Hansen (Hansen Decl.) 12; ECF No. 31-4, Ex. 3,
Schramm Decl. 13, 15-20.

Wild horses are particularly attracted to the

Checkerboard due to available water sources developed in conjunction with energy


development, vegetative treatments, and other factors. Id. 13; ECF No. 31-7, Ex. 6,
Hansen Decl. 12-13. The horses front teeth allow it to clip the grasses and other
vegetation close to the ground. ECF No. 31-5, Ex.4, Burkhardt Decl. 10; ECF No.
31-6, Ex. 5, Eversole Decl. 5. Impacts to the vegetation are exacerbated because wild
horses graze during the growing seasons and disrupt the physiological process in
growing plants. ECF No. 31-5, Ex. 4, Burkhardt Decl. 10. Wild horse consumption
of sage brush reduces the canopy coverage and increases the presence of non-native

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species and reduces habitat for Greater sage-grouse (GSG).3 Id. 11

Finally, wild

horses have caused significant impact to riparian areas near water holes or wells by
compacting the surrounding soils with beaten trails. Id. 11; ECF No. 314, Ex. 3,
Schramm. Decl. 15; ECF No. 318, ECF No. 318, Ex. 7 Lopez Decl. 4-7.
The wild horse impacts to the range resources, environment, and wildlife are
exacerbated during severe drought, which has occurred for much of the past 15 years.
ECF No. 314, Ex. 3, Schramm Decl. 18. The Checkerboard area suffered severe
drought from 1999 to 2009 and, most recently in 2013, one of the driest in recorded
history. Id.; ECF No. 14-2, Ex. 2, Hay Decl. 18. RSGA shareholders took reduced
use or nonuse on their public land allotments in 2013 due to drought. Id. ECF No.
31-6, Ex. 5, Eversole Decl. 3; ECF No. 31-7, Ex. 6, Hansen Decl. 12.
Wild horses will aggressively protect their territory including the scarce water
sources from other animals or humans. ECF No. 31-4, Ex. 3, Schramm Decl. 2021; ECF No. 31-6, Ex. 5, Eversole Decl. 6; ECF No. 31-7, Ex. 6, Hansen Decl. 13.
RSGA shareholders and others have witnessed conflicts with elk, cattle, and humans
on the Checkerboard. Id.
3

The Greater sage-grouse is a candidate species for listing pursuant to the


Endangered Species Act, 16 U.S.C. 1533(a). 75 Fed. Reg. 13910 (2010).
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3.

Greater Sage-grouse Core Areas

To forestall the proposed listing of GSG under the Endangered Species Act
(ESA), the Wyoming Game and Fish Department (WGFD) developed a conservation
plan, which identified core GSG protection areas and land use restrictions. The
Wyoming Governor adopted the plan in Executive Orders (E.O.) 2008-2 superseded
by E.O. 2011-5, Supp. App. 14, AR3597-3614; supplemented by E.O. 2013-3, Supp.
App. 15, AR3807. The Wyoming E.O. identified key habitat as core strategy areas
and imposed disturbance and management guidelines that apply to activities on public,
private, and state lands. BLM Wyoming adopted the state management restrictions.
Instruction Memorandum WY-2010-012 Greater Sage-Grouse Habitat Management
Policy on Wyoming BLM Administered Public Lands including the Federal Mineral
Estate.
GSG core habitat areas are found in the Salt Wells and Divide Basin HMAs.
See ECF No. 31-3, Ex. 2, Hay Decl.; Supp. App. 14, AR3607. There are also a
number of GSG leks and associated nesting habitat outside the core areas but in the
HMAs. See e.g. Supp. App. 4, AR636, AR666.

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Wild horses adversely affect GSG habitat and compete directly with GSG for
forage. Both U.S. Fish and Wildlife Service and BLM recognize that wild horses will
adversely affect GSG habitat:
On a per capita body mass, horses consume more forage than cattle or
sheep and remove more of the plant which limits and/or delays
vegetative recovery (Menard et al. 2002), and horses can range further
between water sources than cattle, thereby making them more difficult to
manage. Equid grazing results in a reduction of shrub cover and more
fragmented shrub canopies, which can negatively affect sage-grouse
habitat (Beever and Aldridge 2011). Additionally, sites grazed by
free-roaming equids have a greater abundance of annual invasive grasses,
reduced native plant diversity and reduced grass density (Beever and
Aldridge 2011).
Supp. App. 16, AR3694, AR3744.
4.

Gathers Have Limited Environmental Impacts

The past EAs for wild horse gathers identify temporary impacts to vegetation,
soils, and wild horses from the gather activities. Supp. App. 4, AR660-664, AR667672; ECF No. 31-16, Ex. 15, at 13-18, 21-22, 24-26; ECF No. 31-9, Ex. 8, at 1, 12-16,
19-20, 23-24. Virtually all of the gather facilities, such as traps and corrals where the
impacts to vegetation and soils are concentrated, occur on RSGA private lands. ECF
No. 31-4, Ex. 3, Schramm Decl. 23.

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C.

2011 Litigation and 2013 Consent Decree

RSGA withdrew its consent to tolerate wild horses on its land and requested
removal of all wild horses on July 27, 2011. ECF No. 31-3, Ex. 2, Hay Decl. 15.
In a letter dated February 7, 2012, BLM declined RSGAs request to gather wild
horses citing the lack of funds, RSGAs previous commitment to the AMLs, and the
incorporation of the HMAs and AMLs into the 1997 Green River RMP. Id. 15; 314, Schramm Decl. 5, Exs. 3A & B.
RSGA sued to compel BLM to either follow Judge Kerrs order to manage wild
horses at the number set by RSGA, which was now zero, or to comply with the
Section 4 removal request. The parties settled and this Court approved a Consent
Decree in 2013. Supp. App. 3, AR464. The settlement provided that BLM would
remove all wild horses on RSGA lands including the Checkerboard, except for the
WM HMA, where RSGA consented to 205 wild horses could remain in White
Mountain, Id. 1; BLM would consider revising the HMA boundaries to exclude
Checkerboard lands for SW and GDB HMAs, where there would be zero wild horses
and adjust the AML for the AT HMA for 225-450 wild horses. Recognizing that
wild horses would return to the Checkerboard, BLM also committed to gather the SW

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HMA, if more than 200 wild horses were present and the GDB HMA, if there were
more than 100 wild horses, Id. BLM also committed to a gather schedule whereby
BLM would remove wild horses in the AT-SW HMA in 2013, GDB HMA in 2014,
and WM in 2015, Id. 5. BLM also committed to submitting scoping notices under
NEPA to consider the effects of revising the HMA boundaries for Salt Wells and
Divide Basin and the AMLs. Id. 6.
Petitioners objected to the 2013 Consent Decree and contended that it violated
the WHA, FLPMA, and NEPA. Petitioners argued that reduction in wild horse
numbers and exclusion from the Checkerboard would harm herd cohesion and wild
horse health and, thus, violated the WHA. In approving the Consent Decree, this
Court recognized that the land management problems within the Checkerboard
do not deprive RSGA of its rights as a private landowner under Section
4 of the Wild Horses Act, nor the deference due the BLM as the agency
with substantial expertise in the management of the HMAs. The BLM
is statutorily obligated to manage wild horses in this area consistent with
RSGAs Section 4 legal rights notwithstanding the RMP herd
management objectives for federal land, or the particular management
challenges presented.
RSGA, 935 F. Supp. 2d at 1187-88.

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1.

Implementation of the 2013 Consent Decree

BLM completed the July 2013 EA and Decision Record for the AT-SW HMA.
Supp App. 4, AR636, AR642, AR647. The EA proposed to gather about 586 excess
wild horses from the AT-SW HMAs and to gather all wild horses from the private
lands pursuant to landowners requests and the 2013 Consent Decree. Id. at AR642,
AR644, AR650. The EA stated that under the consent decree BLM committed to
removing wild horses from the Checkerboard. Id. at AR645, AR647, AR656. About
250 wild horses were to be treated with Porcine Zone Pellucida (PZP) to control
fertility. Id. at AR650. The AT-SW DR also stated that BLM needs to remove wild
horses from private lands as required by section 4 of the [WHA] and the 2013
Consent Decree. Supp. App. 5, AR739, AR741, AR743.
At the completion of the gather, RSGA determined that BLM did not gather
several hundred wild horses from the Checkerboard, had released about 40 wild
horses onto State land section south of the Checkerboard boundary and next to private
land, ECF No. 31-6, Ex.5, Eversole Decl. 8; and returned wild horses that exceeded
the number stated in the EA to public lands adjacent to the Checkerboard. ECF No.
31-4, Ex. 3, Schramm Decl. 10. The return of wild horses to public lands near the

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south boundary of the Checkerboard facilitated the return of the wild horses to the
Checkerboard lands where reliable water is found. Id. BLM had only treated about
40 mares with PZP instead of the 250 stated in the EA. Supp. App. 11, AR33563357.
In December 2013, BLM initiated scoping to gather excess wild horses in the
GDB HMA. Supp. App. 6, AR822. The proposed action called for removal of all
wild horses that have strayed on private lands (checker board) within the [GDB
HMA] and to remove all excess wild horses from the solid blocks of public land
within the GDB HMA. Id. at AR822.
RSGA objected to the limited interpretation of the 2013 Consent Decree that
left several hundred wild horses on the Checkerboard, relied on a desktop-inventory
instead of a census, failed to use a 20 reproduction rate to estimate the number of wild
horses, and failed to gather wild horses from the Checkerboard in 2013. Supp. App.
7, AR3313. BLM responded May 12, 2014 noting confusion about the 2013 Consent
Decree but that wild horses had not been removed from the Checkerboard and that
putting wild horses on state lands was not appropriate. Supp. App. 9, AR3344.

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BLM, RSGA, and the United States Geological Survey (USGS) conducted the
April 2014 aerial census. Using USGS adjustments, BLM estimated that there were
about 806 wild horses within the Checkerboard, excluding the White Mtn. HMA.
Supp. App. 11, AR3357-3358. Because the census occurred early in the foaling
season, USGS used the count with only visible foals without adjusting for the unborn
foals. ECF No. 31-4, Ex. 3, Schramm Decl. 11.
2.

2014 BLM Decision Record

BLM evaluated RSGAs concerns and then received a removal request from
Niels Hansen. ECF No. 31-7, Ex. 6, Hansen Decl. 17. In July 2014, BLM decided
to remove all of the wild horses on the Checkerboard pursuant to Section 4 of the
WHA and the 2013 Consent Decree. Supp. App. 12, AR3369. The BLM cited the
CTX for removal of wild horses from private lands and the determination that no
extraordinary circumstances existed that would have a significant effect on the
environment. Id.; Supp. App. 11, AR3360-3365.
BLM published the Decision and the CTX on July 20, 2014. The Decision
documents the process and the basis for the gather and the CTX documents the basis
for proceeding without preparing an EA. Id. BLM explained that while it had not

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used a categorical exclusion for the previous gather under the 2013 Consent Decree,
this gather was strictly about removing horses from private land (checkerboard) and
not about herd management. Id. (emphasis added). See also Supp. App. 10,
AR3348 (This removal is a compliance action for the Consent Decree 2013 . . .
which requires the removal of wild horses from the checkerboard land according to
the Consent Decree schedule and is, therefore; not a routine gather for the
management of the HMAs.). Therefore, the categorical exclusion provided the best
fit for removing wild horses from private land.

Id. (recognizing there is no

alternatives to consider nor any decision space with removing wild horses from
private lands). BLM cited landowner requests under Section 4 of the WHA and the
2013 Consent Decree as well. Supp. App. 12, AR3369.
On October 9, 2014, the BLM concluded the gather and reported that it had
removed about 1,263 wild horses from the Checkerboards lands within the three
HMAs and elsewhere in the Checkerboard. ECF No. 58, 58-1. BLM estimates that
there are still about 649 wild horses in the three HMAs, 91 in the GDB HMA and
558 in the SW-AT HMA. Id. 7. The 2014 fall estimates are based solely on the

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difference between the April 2014 census and the number of wild horses gathered and
the acutal number is unknown until the 2015 census.
SUMMARY OF ARGUMENT
Because the WHA, NEPA, and FLPMA do not provide for a private right of
action, the APA, 5 U.S.C. 701-706, permits judicial review for challenges to final
agency action. See e.g., Utah v. Babbitt, 137 F.3d 1193, 1203 (10th Cir. 1998). The
BLMs decision to remove wild horses from the Checkerboard may only be set aside
if arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law. 5 U.S.C. 706(2)(A). This standard of review is narrow and the BLM decision
will be affirmed if there is a rational connection between the facts found and the
decision made after considering the relevant factors. Motor Vehicle Mfrs. Ass'n. v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). A presumption of validity
attaches to the agency action and the burden of proof rests with [the Petitioner] to
show a clear error of judgment. Morris v. U.S. Nuclear Regulatory Commn, 598
F.3d 677, 691 (10th Cir. 2010) (quotes omitted).
This Court should affirm the BLM wild horse gather because the rules of
statutory construction require that all sections in statute be given effect and read in

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context, and that mandatory provisions must be followed. Petitioners would have this
Court require BLM to apply the provisions in Section 3, which apply to public land
HMAs, without regard to Section 4's ministerial direction to remove wild horses from
private land upon request. Adopting Petitioners construction of the WHA would
mean that wild horses could never be removed because the term excess is defined by
resource capability, not landownership.
Petitioners erroneously dismiss Section 4 as a limited authority when the rules
of statutory construction assume that a section mandating an agency to act cannot be
disregarded. Petitioners would require simultaneous compliance with Sections 3 and
4, even if Section 3 compliance forced the landowners to maintain wild horses without
consent. Petrs. Br. at 24. As this Court held earlier, requiring the BLM to comply
with both Section 3 and Section 4 on the Checkerboard would advance an artificial
choice that would frustrate the very purpose of the WHA. ECF 35 at 13.
BLM reasonably prepared a CTX pursuant to BLM NEPA guidelines to
evaluate the impacts of the wild horse gather on the Checkerboard and the use of a
CTX complied with NEPA. See Sac & Fox Nation of Missouri v. Norton, 240 F.3d
1250, 1262-63 (10th Cir. 2001). Petitioners argument that a CTX violated NEPA by

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failing to perform either an EA or an EIS., Petrs. Br. 40-45, should be rejected. The
2014 wild horse gather also conforms to NEPA when the environmental impacts are
minimal and even beneficial. Utah Envtl. Cong. v. Bosworth, 443 F.3d 732, 741 (10th
Cir. 2006).
The removal of wild horses from the Checkerboard is governed by Section 4
which is not limited by AML decisions. This Court should therefore reject Petitioners
claim that the gather violated FLPMA by reducing wild horse numbers below AML.
Petrs. Br. 38. The BLM plan must conform to existing law, 43 C.F.R. 1610.3-2(a),
which includes Section 4. Additionally, BLM has discretion to change AMLs under
its own guidelines.
LEGAL ARGUMENT
IV.

REMOVAL OF WILD HORSES FROM THE CHECKERBOARD CONFORMS


TO THE WILD HORSE ACT
A.

BLM Discretion to Manage Wild Horses on Public and Private Land is


Limited When Landowners Do Not Agree to Maintain Wild Horses

First, always, is the question whether Congress has directly spoken to the
precise question at issue. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837, 842-43 (1984) (When a court reviews an agency's construction of the

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statute which it administers, . . . [i]f the intent of Congress is clear, that is the end of
the matter; for the court, as well as the agency, must give effect to the unambiguously
expressed intent of Congress.). The accepted canons of statutory construction may
be used to determine Congresss specific intent in order to dispose of the question
under the first step of Chevron. Michigan Citizens for an Indep. Press v. Thornburgh,
868 F.2d 1285, 129293 (D.C. Cir.) aff'd by equally divided Court, 493 U.S. 38
(1989). Thus, a court must consider the plain language of the precise statutory
provision section in question and [it must] also analyze the provision in the context
of the governing statute as a whole, presuming congressional intent to create a
symmetrical and coherent regulatory scheme. Coyt v. Holder, 593 F.3d 902, 905
(9th Cir. 2010) (quoting Gustafson v. Alloyd Co., 513 U.S. 561, 569
(1995))(emphasis added). While RSGA agrees that principles of statutory construction
govern whether the Decision is consistent with the WHA, the Chevron doctrine does
not help Petitioners.
1.

Section 3 Governs Wild Horses on Public Land

Section 3 states the Secretary shall manage wild free-roaming horses and burros
in a manner that is designed to achieve and maintain a thriving natural ecological

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balance on the public lands. 16 U.S.C. 1333(a). To do so, the Secretary is granted
discretion to identify HMAs and to determine AMLs, to remove excess animals, and
use other methods to control the population (i.e. sterilization). Id. at 1333(b)(1); Am.
Horse Prot. Ass'n, Inc. v. Frizzell, 403 F. Supp. 1206, 1217 (D. Nev. 1975); In Def.
of Animals v. U.S. Dep't of Interior, 737 F. Supp. 2d 1125, 1133 (E.D. Cal. 2010);
H.R. Rep. No. 92681, 92d Cong., 1st Sess. 67 (1971), U.S. Code Cong. & Admin.
News 1971, pp. 2149, 2160 ([T]he Secretaries of Interior and Agriculture are given
a high degree of discretionary authority for the purposes of protection, management,
and control of wild free-roaming horses and burros on the public lands.)
This regulatory scheme involves identification of HMAs and assigning an AML
for each. Supp. App. 2, AR291-292, H-4700-1, 7.1.1. The AML is, however, to be
determined as the maximum number of wild horses to achieve thriving and natural
ecological balance and avoid resource deterioration. Id. In this case, the HMAs and
their AMLs were based on RSGAs now revoked consent to tolerate wild horses.
Thus, the AMLs are not defined by the criteria in Section 3.
Petitioners argue that Section 3 unambiguously describes Congresss intent to
require an excess determination for all removals of wild horses on public lands and

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controls the BLMs decision in this case. Petrs. Br. 25. The excess determinations are
measured in terms of thriving and natural ecological balance and apply only to
public lands. If RSGA must maintain wild horses based on the maximum number of
wild horses that did not exceed a thriving natural ecological balance, it would have
no rights as a private landowner, because excess would be defined by resource impacts
not land ownership. This demonstrates why it is impossible to implement Section 3
criteria for removal, as argued by Petitioners, while enforcing RSGAs right as a
private landowner to not maintain wild horse.
2.

Section 4 Establishes Landowner Rights

Section 4 distills the Secretarys discretion to a single ministerial command the


BLM must remove wild horses upon the request of the landowner. 16 U.S.C. 1334.
Indeed, federal courts recognize the distinction between Sections 3 and 4 since the
Secretary has a ministerial duty to remove the wild horses and burros from private
lands. As to the duty of removal, the statute does not speak in discretionary terms. As
to other means of preservation and protection, the Secretary does have discretion
under the [WHA]. Roaring Springs Associates v. Andrus, 471 F. Supp. 522, 526
(D. Or. 1978) (emphasis added); Fallini v. Hodel, 783 F.2d 1343, 1346 (9th Cir.

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1986). Thus, Sections 3 and 4 are fundamentally different; one grants the Secretary
the discretion to manage wild horses on public land while the other speaks only by
categorical command to remove wild horses on request.
Petitioners argument that BLM could not gather wild horses in the
Checkerboard except within the confines of Section 3 fails to consider the mandates
of Section 4, Gustafson, 513 U.S. at 569, which give private landowners sole control
over whether wild horses will remain on private land. 16 U.S.C. 1334. It is
axiomatic across all circuits that a statute is to be read as a whole . . . since the
meaning of statutory language, plain or not, depends on context. King v. St.
Vincent's Hosp., 502 U.S. 215, 221 (1991) (emphasis added). Thus, Petitioners focus
on Section 3 is irrelevant as it does not address a request to remove wild horses from
the Checkerboard, which includes both public and private land, where half is not in
an HMA and wild horses should not be there at all. Specifically, the HMAs in this
case exist solely because RSGA agreed to allow 500 wild horses to remain on the
Checkerboard. Once RSGA revoked its consent, however, RSGAs rights under
Section 4 were triggered and wild horse decisions must conform to the extent private
land rights are involved.

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The difference in the two sections is especially clear in that Section 4 requires
the Secretary to remove stray wild horses and burros from private lands as soon as
practicable. 43 C.F.R. 4720.21 (emphasis added); RSGA, 935 F. Supp. 2d at 1182.
The BLM wild horse guidelines echo this priority since complying with court orders
or land owner requests take priority over all gathers except for emergencies. Supp.
App. 2, AR272, H-4700-1, 4.6. If Section 3 were construed to require BLM to
ignore the rights of private landowners as Petitioners argue, then Section 4 would be
rendered all but superfluous. W. Energy Alliance v. Salazar, No. 2011 WL 3737520,
at *6 (D. Wyo. 2011) appeal dismissed for lack of finality, 709 F.3d 1040 (10th Cir.
2013). Nothing in Section 3 precludes compliance with the mandates in Section 4.
Congress did not intend words granting discretionary authority in Section 3 to nullify
the Secretarys ministerial duty under Section 4.
Petitioners also attempt to argue that Section 3 speaks of no exceptions for
the Checkerboard or otherwise nor is there any legislative history suggesting that
Congress intended to impose a different legal regime in the Checkerboard from all
other BLM lands. Petrs. Br. 29.4 Petitioners again offer a statutory construction that
4

Congress had no need to address the Checkerboard because Section 4 fully protects
(continued...)

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creates an impossible catch-22 for the agency. In Def. of Animals v. Salazar, 675
F. Supp. 2d 89, 97-98 (D. D.C. 2009) (Rejecting illogical reading of WHA since it
would lead to practical impossibilities in management).

As Petitioners stated

previously, a single horse using public lands at noon on any particular day may be
on private lands by two p.m. and back on the public lands by five p.m. the same day
and it is no rare circumstance that causes a wild horse to travel as much as fifteen to
twenty miles a day. Petrs. Pet. 49, ECF No. 1. By Petitioners own account, in a
matter of hours, the BLM would be required to make an excess determination to
remove a wild horse, then ministerially required to remove that horse upon request,
and then once again required to make an excess determination as a horse travels
across private and public parcels. Congress clearly did not intend this, and Petitioners
may not credibly offer a statutory scheme that yields absurd management prescriptions.
U.S. v. Turkette, 452 U.S. 576, 580 (1981). Even more significantly, this interpretation
would negate the mandates in Section 4.

(...continued)
private landowners. Petitioners also suggest Congress was aware of the Checkerboard
ownership pattern but nothing in the WHA or legislative history suggests Congress
knew the number of wild horses there.
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Applying the Chevron principles, the clear ministerial language of Section 4


addresses the precise question at issue and, as such, the first step of the Chevron
analysis ends the matter and the Court must give effect to the WHA as written.
Chevron 467 U.S. at 842-43.
B.

The Decision Is a Reasonable Interpretation of WHA

According to the second step of the Chevron analysis, if the statute is silent or
ambiguous with respect to the specific issue, the question for the court is whether the
agency's answer is based on a permissible construction of the statute. Chevron, 467
U.S. at 843. The court, however, does not simply impose its own construction of the
statute. Id. Instead, the court must grant considerable weight . . . to the agencys
construction of a statutory scheme it is entrusted to administer .... Id. at 844.
1.

BLMs Decision Reflects a Coherent Regulatory Scheme

All parties agree that the ownership pattern of the Checkerboard makes it
impossible to manage either the public lands or the private lands independently of the
other.

ECF No. 35 at 11. BLM cannot comply with Section 4 without also

incidentally removing horses from public lands in the Checkerboard. 16 U.S.C.

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1333.5 Inversely, if BLM removes only excess horses pursuant to Section 3, nonexcess horses would remain on or immediately return to RSGA lands, contrary to
Section 4 and BLMs RSGA consent decree commitments. 16 U.S.C. 1333; 2013
Consent Decree, 4. In other words, implementing Section 3 precludes compliance
with Section 4's ministerial duty. Am. 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).
Just as BLM accepted RSGAs offer in 1981 to manage the Checkerboard lands
as part of HMAs, BLM recognized that the Checkerboard had to be managed without
wild horses once RSGA withdrew its consent. 2013 Consent Decree, 1. Section 4
imposes a plainly prescribed, ministerial duty to remove wild horses and burros from
private land upon notification. Fallini, 783 F.2d at 1346; see Supp. App 8, AR
003340, Email from Don Simpson to Kimberlee Foster (May 9, 2014). The BLMs
duty extends to all private landowners who have wild horses and burros [that] stray
upon their land Roaring Springs Associates, 471 F. Supp. at 525, and there are no
5

Wild horses outside the HMAs, whether on public or private land are excess. 43
C.F.R. 4710.4; Red Wings Horse Sanctuary, et al., 148 IBLA 61, 65 (1999).
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exceptions to BLMs Section 4 duty on the Checkerboard RSGA is as private


landowner protected by the WHA.
While the Court fully appreciates the land management challenges
presented by checkerboard ownership, those problems do not deprive
RSGA of its rights as a private landowner under Section 4 of the Wild
Horses Act, nor the deference due the BLM as the agency with
substantial expertise in the management of the HMAs.;
RSGA, 935 F. Supp. 2d at 1187-88 (footnote omitted); Roaring Springs Assoc., 471
F. Supp. at 525; 43 C.F.R. 4720.21; see also Mountain States Legal Found., 799
F.2d at 1434-35(dissenting opinion).
This Section 4 removal duty, despite Petitioners arguments to the contrary,
Petrs. Br. 36, syncs perfectly with purpose of the WHA and creates a coherent
regulatory scheme. Gustafson, 513 U.S. at 569. By granting landowners a ministerial
removal mechanism, landowners will not be tempted to shoot or otherwise harm
[wild horses]. Accordingly, less animals will be maimed or killed. Roaring Springs
Associates, 471 F. Supp. at 525-26. Thus, the BLMs duty to private landowners
actually accrues to the benefit of the public. Id.
The BLMs construction also matches the WHAs directive that management
activities shall be at the minimal feasible level. 16 U.S.C. 1333(a). Wild horses must

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be able to roam freely and Congress never granted the BLM the authority to create
intensive zoolike conditions such as fences between private and public sections.
Fallini, 783 F.2d at 1346 (quoting S. Rep. No. 92242, 92d Cong., 1st Sess., reprinted
in 1971 U.S. Code Cong. & Ad. News 2149, 215152.). RSGA is similarly prevented
from enclosing its private lands. Camfield v. United States, 167 U.S. 518 (1897)
(upholding the constitutionality of the Unlawful Inclosures Act and declaring a fence
that was located entirely on private checkerboard lands a nuisance and illegal). Even
more intrusive would be daily removal requests by landowners if the BLM could only
remove horses when currently on private lands. In Def. of Animals v. U.S. Dep't of
the Interior, 909 F. Supp. 2d 1178, 1193 94 (E.D. Cal. 2012) aff'd sub nom. In Def.
of Animals, Dreamcatcher Wild Horse & Burro Sanctuary v. U.S. Dep't of the
Interior, 751 F.3d 1054 (9th Cir. 2014) (decreasing the number of removals minimizes
management); Cloud Found. v. U.S. Bureau of Land Mgmt., 2013 WL 1249814, at
*12 (D. Nev. 2013), appeal dismissed (Sept. 11, 2014) (same).
2.

The BLMs Construction of the WHA Is Entitled to Deference

The BLM treatment of the Checkerboard is entitled to deference, even absent


a formal rule. Skidmore v. Swift & Co., 323 U.S. 134 (1944); United States v. Mead

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Corp., 533 U.S. 218 (2001). If a court finds that the agency interpretation does not
carry the force of law or is not the result of binding precedent, see Vaquero Cordero
v. Holder, 498 F. Appx. 760, 762 (10th Cir. 2012), the agencys interpretation is still
entitled to deference if it carries the power to persuade. McGraw v. Barnhart, 450
F.3d 493, 500-01 (10th Cir. 2006). The degree of deference under Skidmore var[ies]
with circumstances, and courts consider the degree of the agency's care, its consistency,
formality, and relative expertness, and to the persuasiveness of the agency's position.
S. Utah Wilderness Alliance v. Bureau of Land Mgmt., 425 F.3d 735, 759 (10th Cir.
2005).
The decision reflects consistent construction of wild horse management on the
Checkerboard and as such qualifies for deference. BLM has, for 40 years, worked
with RSGA and other private landowners throughout the Checkerboard to
cooperatively manage wild horses. ECF No. 31-3, Ex. 2, Hay Decl. 9. Finally, the
BLMs decision matches the purpose of the WHA and creates a coherent and
symmetrical statutory scheme. Thus, at the very least, this court should accept this
reasonable interpretation of the WHA.

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3.

Long Standing Practice and Policy

Petitioners claim that the reconciliation of Sections 3 and 4 in the Checkerboard


is merely a convenient litigating position that BLM takes for the first time in agency
history. Petrs. Br. 24, 32-34. This is incorrect. More than 24 years ago, BLM
argued that the checkerboard could only be managed for wild horses with the
landowners consent and thus the court order in MSLF v. Andrus, Civ. No. 79-275K,
was separate from and superseded Section 3 of the WHA. ECF No. 31-15, Ex. 14,
Respondents Motion to Dismiss and Answer at 8-10; Animal Prot. Inst. of Am., et al.,
118 IBLA 63, 70 (1991). The Board agreed with the BLM argument and held that
the court order superseded Section 3 procedures and rejected wild horse advocate
arguments that the gather violated the WHA for lack of monitoring data and a
determination of excess animals.
The BLM's current interpretation of this binding precedent established by the
IBLA deserves deference.

Vaquero Cordero v. Holder, 498 F. App'x at 762

("[W]hen the interpretation occurs in an adjudication, the agency acts in a lawmaking


capacity if the decision is binding precedent within the agency." (emphasis added));
See Colo. Interstate Gas Co. v. FERC, 791 F.2d 803, 810 (10th Cir. 1986).

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It is unclear how BLMs current interpretation can be novel if Petitioners have


previously contended it was unlawful. [Petitioners] argue[d] the Consent Decree is
illegal because the statutorily required decisions have not been made pursuant to law,
namely that an overpopulation exists and that the wild horses slated for removal are
excess animals. RSGA, 935 F. Supp. 2d at 1188 (emphasis added).
Without consent of RSGA and other private landowners, wild horses are not
permitted on the private parcels in the Checkerboard. See Mountain States Legal
Found., 799 F.2d at 1434-35; RSGA, 935 F. Supp.2d at 1187-88, this Court wrote:
There is no dispute that private landowners are entitled to enjoy the use of their
property unencumbered by wild horses.. ECF No. 35 at 14. This removal arises
through Section 4 of the WHA and does not implicate the excess determination
necessary to a Section 3 removal. Compare 43 C.F.R. 4720.1 with 43 C.F.R.
4720.2-1. Thus, any comparison by Petitioners of this removal to the decision record
for that removal last year in AT and SW HMAs is plainly off point since that removal
was limited to those HMAs and involved the discretion of the BLM pursuant to
Section 3. Petrs. Br. at 34; Supp. App. 4, AR645; Supp. App. 5, AR741. As such,
BLM relied on both Sections 3 and 4.

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Finally, and perhaps most importantly, the 2013 Consent Decree is firmly
grounded on the proposition that BLM agreed to remove all wild horses located on
RSGAs private lands, including Wyoming Checkerboard lands, with the exception of
those horses found within the White Mountain [HMA]. RSGA, 935 F. Supp.2d
1192. Thus, it is impossible to argue that the BLM offers a new interpretation of the
WHA when the BLM has previously entered into court approved agreements that
BLM would remove all wild horses from the Checkerboard by RSGAs request.
The 2013 Consent Decree enjoys priority for removal priority in the BLM wild
horse handbook. See Supp. App. 2, AR272 (Gather priorities are: Emergencies,
Court Order, Nuisance animals; Impacts to ESA species; wild horses outside HMAs;
landowner request; to maintain AML; or to Coordinate gathers across State, District
and/or Field Office boundaries.) RSGA and BLM did not intend, and do not now
attempt to undo this priority but merely follow the commands of RSGA, the WHA,
and the 2013 Consent Decree on the Checkerboard.
V.

THE CATEGORICAL EXCLUSION FULLY COMPLIES WITH NEPA


Petitioners insist that BLM violated NEPA by failing to prepare either an EA

or an EIS. Petrs. Br. 40-45. Not only do Petitioners misconstrue the level of

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environmental analysis performed by BLM, but Petitioners also misapprehend the link
between Section 4 gathers under the WHA and the NEPA categorical exclusion. See
Sac & Fox Nation of Missouri, 240 F.3d at 1262-63. While Petitioners contend there
was no NEPA compliance, a categorical exclusion is one form of NEPA compliance.
Citizens Comm. to Save Our Canyons v. U.S. Forest Serv., 297 F.3d 1012, 1023 (10th
Cir. 2002). BLM NEPA guidelines authorize a CTX for wild horse gathers from
private land. Department of the Interior Manual, BLM 516 DM 11.9, D4 (providing
categorical exclusion for removal of wild horses from private lands). Comparison to
past gathers is inappropriate since those gathers were to maintain AMLs within
HMAs, which included the solid block of public lands, and, thus, an EA was
appropriate. Supp. App. 4, AR642, AR647. Finally, the Section 4 gather had
overwhelming environmental benefits with de minimus and localized adverse impacts.
A.

CTX Authorized for Section 4 Wild Horse Gathers

NEPA authorizes agencies to identify actions that have low environmental


impacts for a categorical exclusion. 40 C.F.R. 1500.4(p). Actions which individually
or cumulatively do not have significant environmental impacts qualify for a categorical
exclusion. Id. 1500.5(k). The Decision is supported on two grounds: wild horse

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gathers from private land, BLM 516 DM 11.9, D4, and when where there are no
exceptional circumstances. Id.; see also 40 C.F.R. 1500.4(p).
The transition from an EA to a categorical exclusion analysis was not [d]ue
to the challenges with an EA as the Petitioners claim. Petrs. Br. 19-20. The BLM
shifted from an EA to a categorical exclusion because the Department of Justice
informed BLM that the planned EA for Divide Basin would not comply with the 2013
Consent Decree. Supp. App. 8, AR3340. This conclusion reflected RSGAs concerns
about the 2013 wild horse gather in the AT-SW Complex. Supra at 19. The 2013 AT
SW gather limited the number of wild horses removed to maintain AML and BLM
returned the wild horses that were gathered above the estimated number to meet
AML. The 2014 gather focused on the Checkerboard, both in and outside the HMAs
and was not an HMA action to maintain AMLs. It, thus, fell squarely within the
CTX.
Petitioners further argue that BLM could not invoke the categorical exclusion
because extraordinary circumstances exist that would significantly impact the
environment. Petrs. Br. 42-44. They argue that the roundup would affect a number
of natural resources such as forage, water, vegetation, wild horses, and other wildlife,

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and that managing wild horses at levels far below the AMLs would impact the genetic
diversity of the population. Id. at 42-43. BLM analyzed whether extraordinary
circumstances existed and whether significant impacts would occur. Supp. App. 11,
AR3360-3365. Based on its analysis, BLM concluded that there was no extraordinary
circumstance that would significantly impact the environment. Id.
The factual determination of an agency that an action will not significantly
impact the environment implicates substantial agency expertise and is entitled to
deference. Alaska Ctr. for the Envt v. United States Forest Service, 189 F.3d 851,
859 (9th Cir. 1999); See Colorado Wild v. United States Forest Service, 435 F.3d
1204, 1219-22 (10th Cir. 2006).
The identified environmental impacts listed by Petitioners are contradicted by
research and management experience. Range resources will benefit immediately from
the removal. Supra at 5-7. The wild horses unique feeding habits removes more of
each plant, than, for example, livestock. ECF No. 31-5, Ex. 4, Burkhardt Decl. 10.
Such impacts on vegetation are compounded by the fact that wild horses graze year
round. Removing wild horses will allow the vegetation to recover for two growing
seasons since the Checkerboard is only grazed by RSGA livestock during the dormant

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winter months, December to May, decreasing impacts to the growth cycle of grasses
and other forage while reserving resources for wildlife.

ECF No. 31-4, Ex. 3,

Schramm Decl. 17; ECF No. 31-5, Ex. 4, Burkhardt Decl. 9.


Drought also plays an important role in evaluating the negative impacts of wild
horses on range conditions. Southwest Wyoming experienced one of the driest years
in the last 150 years and 2012 and 2013 were also dry. The current drought was
preceded by an extended drought from 1999 to 2009, with only a few years recovery
before drought returned.6 As discussed, wild horses year-long grazing on the range
reduces the shrub coverage and increases the presence of non-native species. ECF No.
13-5, Ex. 4, Burkhardt Decl. 10, 12. Drought only exacerbates these impacts. Id.
15
Endangered, threatened, and sensitive species pay the price for the degraded
rangeland vegetation. The AT-SW HMA and the GDB HMA include designated
core habitat area for the GSG. See ECF No. 31-3, Ex. 2, Hay Decl. 21; ECF No.
31-11, Ex. 10, BLM HMA, Map (Apr. 5, 2011).

Moreover, many GSG leks and

Petitioners members claim there is no drought based on their observations. ECF


No. 17-14, Pet. Ex. M at 10; ECF No. 17-16, Pet. Ex. O at 5. Drought is measured
by annual rainfall, not an occasional visit to one part of the 2.4 million acre area.
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nesting habitat are outside the core areas but are in the Checkerboard. See e.g., Supp.
App. 4, AR666.
In regard to the roundup operations, BLM reasonably concluded that the effects
of wild horse gathers are well understood and would not create highly controversial
environmental effects. Supp. App. 11, AR3361-3362; see id. at AR3363-3364 (The
Checkerboard lands have been managed for wild horses, including gather operations,
for decades.). The gather would also be conducted in accordance with BLM policy,
any temporary trap sites would be located on private lands, and BLM would use
previously cleared trap sites when possible. Id. at AR3363-3364. See supra at 14
(Gather activities are sited on RSGA lands.). BLMs conclusion that the gather would
not significantly impact the environment is therefore supported by an analysis of the
relevant factors.7 Alaska Ctr. for the Envt, 189 F.3d at 859.
Finally, the integrity and viability of the wild horse population will benefit from
the Proposed Removal. As the Nevada District Court concluded, the historical
evidence before this court strongly supports the conclusion that the gather will benefit
7

BLM also considered public comments on the removal and any concerns about
impacts to the environment because of the extensive comments that were submitted
on the scoping notice was issued for the 2014 gather in GDB HMA. Supp. App. 12,
AR003369, DR at 4.
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the horses rather than harm them, as fewer horses competing for limited resources will
mean a healthier herd. Cloud Found., 802 F. Supp.2d at 1208.
Range condition, endangered and threatened species, other wildlife, and the
horses themselves will all benefit from the removal. Petitioners generalized claims of
adverse environmental impacts fail to rebut the well-established impacts of wild horses
and the benefits to be had in removing them or reducing the numbers.
B.

NEPA Procedures Limited When BLM Has No Discretion to Not Gather

NEPA compliance is unnecessary where the agency action at issue involves


little or no discretion on the part of the agency. Sac & Fox Nation of Missouri, 240
F.3d at 1262-63. BLM concluded that removing wild horses pursuant to Section 4
of the WHA and the 2013 Consent Decree were mandatory and provided no room
for alternatives nor any decision space. Supp. App. 8, AR3340; Supp. App. 10,
AR3348.

Internal direction from the Department of the Interior authorizing a

categorical exclusion when wild horses are gathered from private land conforms to the
limited discretion in Section 4. See Supp. App. 13, AR3383. Therefore, BLM
complied with NEPA when it concluded that removal of wild horses from the
Checkerboard was categorically excluded from further NEPA analysis. Center for

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Biodiversity v. Salazar, 706 F.3d 1085, 1096 (9th Cir. 2013). (A categorical exclusion
to approve sand and gravel permit was found to be in compliance with NEPA.)
C.

Past Gathers Were to Maintain AMLs Within HMAs, Not to Remove Wild
Horses From Private Lands

The Petitioners refer to past wild horse gathers where BLM prepared an EA as
evidence that an EA was also required to gather wild horses from the Checkerboard.
Petrs. Br. 43-44. This argument fails because the 2014 wild horse gather was not
done to manage an existing wild horse herd in an HMA to maintain AMLs under
Section 3. The 2014 Checkerboard gather was done under Section 4 at the specific
request from private landowners to have wild horses removed from their private lands
on the Checkerboard pursuant to Section 4 and to comply with the settlement
approved by this Court. See Supp. App. 7, AR3313; Supp. App. 12, AR3369.
III.

2014 WILD HORSE GATHER COMPLIED WITH FLPMA


Finally, Petitioners argue that BLM violated FLPMA by reducing wild horse

numbers below AMLs without amending the RMPs. Petrs. Br. 37-40. AMLs are part
of the HMA, as public land management tool established pursuant to Section 3 of the
WHA. 16 U.S.C. 1333(b)(1); 43 C.F.R. 4720.1. Without RSGAs consent to permit
wild horses on the adjacent private lands, the AML is no longer applicable for the

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Checkerboard land. As this Court wrote earlier, the WHA does not compel private
landowners to support wild horses. ECF No. 35 at 14. BLM may modify AMLs
outside of the RMP process and did so here. Supp. App. 2, AR291-292, H-4700-1,
7.1.1.
The AMLs reflect that wild horses remained on the Checkerboard, only because
RSGA consented to tolerate 500 wild horses on its private land. See ECF No. 31-15,
Ex. 14, Respondents Motion to Dismiss and Answer at 9 (The only way any wild
horses at all can be maintained in the checkerboard within the constraints imposed by
Congress is to obtain private landowners consent to the use of private property by
straying animals.). RSGAs consent to allow 500 wild horses to remain on its land
determined what is excess within the Checkerboard. Animal Prot. Inst. of Am., et al.,
118 IBLA 63, 70 (1991); ECF No. 31-4, Ex. 3D, Schramm Decl. 7. As such, BLM
and the courts have recognized that BLM is forced to manage the alternating land
pattern of the Checkerboard as a single unit. ECF No. 35 at 12 (citing Mountain
States Legal Found., 799 F.2d at 1434-35); RSGA, 935 F. Supp. 2d at 1187-88.
BLM is not required to consider the appropriate AML levels in the HMAs
because such a determination is not relevant to a Section 4 gather. BLM is statutorily

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obligated to manage wild horses in [the Checkerboard] consistent with . . . Section 4


. . . notwithstanding the RMP herd management objectives of the federal land, or the
particular management challenges presented [by the Checkerboard]. RSGA, 935 F.
Supp. 2d at 1188.
The BLM manual permits BLM to adjust AML. Supp. App. 2, AR291-292,
H-4700-1, 7.1.1. Even if BLM must consider AML or make adjustments to AML
when removing horses from the Checkerboard, this can occur without NEPA analysis
in order to prevent resource damage. Animal Prot. Inst. of Am., 118 IBLA at 75-76;
Dahl v. Clark, 600 F. Supp. 585, 594 (D. Nev. 1984); Supp. App. 2, AR264, AR268,
AR313.
Reduced to its minimum, Petitioners argument that BLM cannot remove wild
horses on private lands without revising the Green River RMP would lead to an
absurd outcome that negates the original grounds for the AMLs and the mandate of
Section 4. BLM cannot manage the private and public lands of the Checkerboard
independently when doing so would nullify BLMs duties under Section 4 the WHA.
Moreover, BLMs reasonable interpretation matches the overall scheme of the WHA
by protecting landowner rights and wild horse populations. Congress never intended

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the WHA to create single-use management of areas for the benefit of the wild free
roaming horses and the Checkerboard is a prime example. H.R. Rep. No. 92681
at 5, 1971 U.S. Code Cong. & Ad. News 2159; S. Rep. No. 92242, 92nd Cong., 1st
Sess., 1971 U.S. Code Cong. & Ad. News 2149, 2150, 215152; Am. Horse Prot.
Ass'n, Inc. v. Watt, 694 F.2d 1310, 1317 (9th Cir. 1982) ( ...public ranges are to be
managed for multiple uses, not merely for the maximum protection of wild horses.).
BLMs decision to remove the wild horses from the Checkerboard pursuant to
Section 4 of the WHA and the 2013 Consent Decree, rather than making a formal
amendment to the RMP to modify the AML levels pursuant to FLPMA and the
WHA, was not arbitrary and capricious.
CONCLUSION
RSGA urges this Court to affirm the 2014 Wyoming Checkerboard gather of
wild horses. It conforms to the mandate in Section 4 of the WHA, benefits range
resources, and conforms to the settlement in the previous litigation before this Court.

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Dated: January 20, 2015


Respectfully submitted,
s/ Constance E. Brooks
CONSTANCE E. BROOKS
CODY DOIG
C. E. Brooks & Associates P.C.
303 East 17th Avenue, Suite 650
Denver, CO 80203
(303) 297-9100
connie@cebrooks.com

L. Galen West
WEST LAW OFFICE
409 Broadway, Suite A
Rock Springs, Wyoming 82902
(307) 362-3300 fax: (307) 362-3309

Attorneys for Rock Springs Grazing Association, Respondent Intervenor

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CERTIFICATE OF SERVICE
I hereby certify that two copies of the foregoing RSGA RESPONSE BRIEF and one
copy each of the SUPPLEMENTAL APPENDIX were served on the following parties by
depositing them in the U.S. mail, postage prepaid, and by e-mail per the electronic
submission rule, on this 20th day of January, 2015.
COBY HOWELL, Wy. Bar No. 603589
Senior Trial Attorney
U.S. DEPARTMENT OF JUSTICE
Environment & Natural Resources Div.
Wildlife & Marine Resources Section
c/of U.S. Attorneys Office
1000 SW Third Avenue
Portland, OR 97204-2902
(503) 727-1000 (503) 727-1117 (fax)
coby.howell@usdoj.gov

Caitlin T. Zittkowski (CA Bar No.


290108, admitted pro hac vice)
William S. Eubanks II (D.C. Bar No.
987036, admitted pro hac vice)
MEYER GLITZENSTEIN & CRYSTAL
1601 Connecticut Ave, NW, Suite 700
Washington DC, 20009
(202) 588-5206 / FAX: (202) 588-5049
czittkowski@meyerglitz.com
beubanks@meyerglitz.com

Timothy C. Kingston
Law Office of Tim Kingston LLC
408 West 23rd Street, Suite 1
Cheyenne, WY 82001-3519
TEL: (307) 638-8885 / FAX: (307)
637-4850
kingston@rockymtnlaw.com

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With respect to the Digital Submission of this is motion, I certify that pursuant to 10th
Circuit Emergency General Order of October 20, 2004, as amended January 1, 2006:
(1) all required privacy redactions (below) have been made and, with the exception of those
redactions, every document submitted in Digital Form or scanned PDF format is an exact
copy of the written document filed with the Clerk, and
(2) the digital submission has been scanned for viruses with the most recent version of a
commercial virus scanning program (McAfee, version 4.0, updated January 9, 2007) and,
according to the program, is free of viruses.
s/ Constance E. Brooks
C. E. BROOKS & ASSOCIATES P.C.
303 East 17th Avenue, Suite 650
Denver, CO 80203
(303) 297-9100
connie@cebrooks.com

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