71 - Govt's MSJ

Case 2:14-cv-00152-NDF Document 71 Filed 01/20/15 Page 1 of 54
CHRISTOPHER A. CROFTS
United States Attorney
NICHOLAS VASSALLO (WY Bar No. 5-2443)
Assistant United States Attorney
P.O. Box 668
Cheyenne, WY 82003-0668
Telephone: 307-772-2124
nick.vassallo@usdoj.gov
JOHN C. CRUDEN, Assistant Attorney General
COBY HOWELL, (WY Bar No. 6-3589), Senior Trial Attorney
DESMOND T. READY, Trial Attorney
U.S. Department of Justice
Environment & Natural Resources Division
1000 SW Third Avenue
Portland, OR 97204-2902
(503) 727-1000
(503) 727-1117 (fx)
coby.howell@usdoj.gov
Attorneys for Federal Respondents
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
AMERICAN WILD HORSE
PRESERVATION CAMPAIGN, et al.,
)
)
)
)
Petitioners,
)
v.
)
) Case No. 1:14-cv-152-F
S.M.R. JEWELL, Secretary of the United
)
States Department of the Interior, et al.,
)
)
Respondents.
___________________________________ )
FEDERAL RESPONDENTS BRIEF
TABLE OF CONTENTS
I.
INTRODUCTION ............................................................................................... 1
II.
LEGAL BACKGROUND ................................................................................... 2
III.
A.
The Wild Free-Roaming Horses and Burros Act ..................................... 2
B.
Checkerboard Land Authorities ................................................................ 4
C.
NEPA ........................................................................................................ 6
FACTUAL BACKGROUND ............................................................................. 7

A.
Wyoming Checkerboard Lands and Wild Horses .................................... 7
B.
RSGA v. Salazar ....................................................................................... 9
C.
Implementation of the Consent Decree .................................................. 11
D.
BLMs 2014 Gather ................................................................................ 13
E.
Procedural History .................................................................................. 15
IV.
STANDARD OF REVIEW ............................................................................... 16
V.
ARGUMENT..................................................................................................... 17
A.
Petitioners Claims are Moot .................................................................. 17
B.
BLM Complied with the Wild Horses Act ............................................. 26
C.
BLM Fully Complied with NEPA .......................................................... 34
D.
VI.
i.
BLM Correctly Determined that a CATEX was Appropriate ..... 34
ii.
Public Involvement is not Required in CATEX Decisions ......... 40
iii.
BLM did not Depart from its own Guidance or Past Practice ..... 41
BLMs Actions did not Contravene FLPMA ......................................... 43
CONCLUSION ................................................................................................. 45
i
TABLE OF AUTHORITIES
Am. Horse Prot. Ass'n v. Andrus,
460 F. Supp. 880 (D. Nev. 1978) .......................................................................................35
Am. Horse Prot. Ass'n v. Frizzell,
403 F. Supp. 1206 (D. Nev. 1975) .......................................................................................4
Am. Horse Prot. Ass'n v. Watt,
694 F.2d 1310 (D.C. Cir. 1982) .....................................................................................4, 29
Arizonans for Official English v. Arizona,
520 U.S. 43 (1997) .............................................................................................................18
Balt. Gas & Elec. Co. v. Natural Res. Def. Council,
462 U.S. 87 (1983) .......................................................................................................16, 17
Camfield v. United States,
167 U.S. 518 (1897) .......................................................................................................5, 27
Cent. Wyo. Law Assocs. P.C. v. Denhardt,
60 F.3d 684 (10th Cir. 1995) .............................................................................................24
Chevron U.S.A. v. NRDC,
467 U.S. 837 (1984) .....................................................................................................26, 31
Chihuahuan Grasslands Alliance v. Kempthorne,
545 F.3d 884 (10th Cir. 2008) ...........................................................................................20
Christensen v. Harris Cnty.,
529 U.S. 576 (2000) ...........................................................................................................41
Church of Scientology of Cal. v. United States,
506 U.S. 9 (1992) ...............................................................................................................18
Citizens' Comm. to Save Our Canyons v. Krueger,
513 F.3d 1169 (10th Cir. 2008) .........................................................................................37
Citizens' Comm. to Save Our Canyons v. U.S. Forest Serv.,
297 F.3d 1012 (10th Cir. 2002) ...............................................................................7, 34, 37
Citizens to Pres. Overton Park v. Volpe,
401 U.S. 402 (1971) ...........................................................................................................16
City of New York v. FCC,
486 U.S. 57 (1988) .................................................................................................29, 30, 33
Colo. Wild v. U.S. Forest Serv.,
435 F.3d 1204 (10th Cir. 2006) ...........................................................................6, 7, 34, 40
ii

Cox v. Phelps Dodge Corp.,
43 F.3d 1345 (10th Cir. 1994) ...........................................................................................20
FCC v. Fox Television Stations,
556 U.S. 502 (2009) ...........................................................................................................42
FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120 (2000) ...........................................................................................................28
Fund for Animals v. BLM,
460 F.3d 13 (D.C. Cir. 2006) ...............................................................................................3
High Country Citizens' Alliance v. U.S. Forest Serv.,
203 F.3d 835 (Table) No. 97-1373, 2000 WL 147381 (10th Cir. Feb. 7, 2000) ...........7, 36
Idaho Rivers United v. U.S. Forest Serv.,
No. 1:11-CV-95-BLW, 2013 WL 474851 (D. Idaho Feb. 7, 2013) ..................................14
In Def. of Animals v. U.S. Dept. of Interior,
808 F. Supp. 2d 1254 (E.D. Cal. 2011)..............................................................................21
In Def. of Animals v. U.S. Dept. of Interior,
648 F.3d 1012 (9th Cir. 2011) ...........................................................................................21
Jackson v. Cal. Dep't of Mental Health,
399 F.3d 1069 (9th Cir.) ....................................................................................................18
Jordan v. Sosa,
654 F.3d 1012 (10th Cir. 2011) .........................................................................................22
Kleppe v. Sierra Club,
427 U.S. 390 (1976) ...........................................................................................................17
Leo Sheep Co. v. United States,
440 U.S. 668 (1979) .......................................................................................................5, 27
Marsh v. Or. Natural Res. Council,
490 U.S. 360 (1989) .....................................................................................................16, 17
McAlpine v. Thompson,
187 F.3d 1213 (10th Cir. 1999) .........................................................................................18
McClendon v. City of Albuquerque,
100 F.3d 863 (10th Cir. 1996) .....................................................................................14, 19
Morris v. U.S. Nuclear Regulatory Comm'n,
598 F.3d 677 (10th Cir. 2010) ...........................................................................................16
iii

Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29 (1983) .............................................................................................................16
Mountain States Legal Found. v. Hodel,
799 F.2d 1423 (10th Cir. 1986) ...............................................................................6, 27, 35
Murphy v. Hunt,
455 U.S. 478 (1982) ...........................................................................................................18
Natl Assn of Home Builders v. Defenders of Wildlife,
551 U.S. 644 (2007) .....................................................................................................30, 31
Olenhouse v. Comodity Credit Corp.,
42 F.3d 1560 (10th Cir. 1994) .................................................................................7, 16, 36
Regions Hosp. v. Shalala,
522 U.S. 448 (1998) ...........................................................................................................31
Rio Grande Silvery Minnow v. Bureau of Reclamation,
601 F.3d 1096 (10th Cir. 2010) ...................................................................................19, 20
Rock Springs Grazing Assn v. Salazar,
935 F. Supp. 2d 1179 (D. Wyo. 2013) ...........................................7, 8, 9, 10, 11, 28, 35, 43
S. Utah Wilderness Alliance v. Smith,
110 F.3d 724 (10th Cir. 1997) .....................................................................................14, 23
U.S. ex rel. Bergen v. Lawrence,
848 F.2d 1502 (10th Cir. 1988) ...........................................................................................6
Unified Sch. Dist. No. 259 v. Disability Rights Ctr. of Kan.,
491 F.3d 1143 (10th Cir. 2007) .........................................................................................25
United Keetoowah Band of Cherokee Indians of Okla. v. U.S. Dept of Housing and
Urban Dev.,
567 F.3d 1235 (10th Cir. 2009) .........................................................................................33
United States v. Shimer,
367 U.S. 374 (1961) ...........................................................................................................29
Utah Envtl. Cong. v. Bosworth,
443 F.3d 732 (10th Cir. 2006) .....................................................................................38, 40
Utah Envtl. Cong. v. Russell,
518 F.3d 817 (10th Cir. 2008) ...........................................................................................39
Utah v. Babbitt,
137 F.3d 1193 (10th Cir. 1998) ........................................................................................15
iv

Weinstein v. Bradford,
423 U.S. 147 (1975) ...........................................................................................................22
Wilderness Socy v. Kane County, Utah,
632 F.3d 1162 (10th Cir. 2011) .........................................................................................29
Wild Earth Guardians v. U.S. Forest Serv.,
668 F. Supp. 2d 1314 (D.N.M. 2009) ................................................................................36
Wyoming v. U.S. Dept of Agric.,
414 F.3d 1207 (10th Cir. 2005) .........................................................................................25
STATUTES
5 U.S.C. 701-706 ......................................................................................................................15
5 U.S.C. 706(2)(A)......................................................................................................................16
16 U.S.C. 1331 ..............................................................................................................................2
16 U.S.C. 1332(c) .........................................................................................................................3
16 U.S.C. 1332(f) ..........................................................................................................................3
16 U.S.C. 1333 ......................................................................................................8, 21, 26, 28, 32
16 U.S.C. 1333(a) .........................................................................................................................3
16 U.S.C. 1333(b) .......................................................................................................................41
16 U.S.C. 1333(b)(1) ....................................................................................................................3
16 U.S.C. 1334 ..................................................................................................4, 8, 21, 26, 27, 28
16 U.S.C. 1338 ............................................................................................................................27
42 U.S.C. 4332(C) ........................................................................................................................6
43 U.S.C. 1061-65 ........................................................................................................................5
43 U.S.C. 1701(b) .......................................................................................................................43
43 U.S.C. 1712 ............................................................................................................................44
Pub. L. No. 95-514, 2(a)(6), 92 Stat. 1803 (1978), 43 U.S.C. 1901(a)(6) ...............................30
Act of Jul. 1, 1862, ch. 120, 12 Stat. 489 .....................................................................................4, 5

REGULATIONS
40 C.F.R. 1500.1(c).......................................................................................................................6
40 C.F.R. 1501.4(b) ......................................................................................................................6
40 C.F.R. 1507.3(b)(2) ............................................................................................................7, 33
40 C.F.R. 1508.4 ...................................................................................................................33, 36
40 C.F.R. 1508.9 ...........................................................................................................................6
43 C.F.R. 46.205 ...............................................................................................................7, 33, 36
43 C.F.R. 46.215 ...................................................................................................................36, 38
43 C.F.R. 4710.1 .....................................................................................................................3, 26
43 C.F.R. 4710.3-1........................................................................................................................3
43 C.F.R. 4710.4 .....................................................................................................................3, 26
43 C.F.R. 4720.2-1..................................................................................................................4, 26
LEGISLATION
H.R. Rep. No. 92-681, 92d Cong., 1st Sess. 6-7 (1971) ..........................................................29, 30
H.R. Rep. No. 95-1122 (1978).......................................................................................................30
S. Rep. No. 92-242 (1971) ............................................................................................................30
vi
I.
INTRODUCTION
S.M.R. Jewell, Secretary of the Department of the Interior (Secretary), and
Neil Kornze, Director of the Bureau of Land Management (BLM), (collectively

Federal Respondents) submit this memorandum in response to the opening brief
filed by Petitioners on December 19, 2014. ECF Nos. 67, 68.
Petitioners in this action are a collection of wild horse enthusiasts who claim
to be impacted by BLMs 2014 removal of wild horses from certain areas of land
in southwestern Wyoming. These land areas, known as the checkerboard,
contain unfenced sections of alternating public and private land. Wild horses move
freely throughout the sections, often to the frustration of private landowners.
Litigation beginning four decades ago determined that, upon request, BLM is
required to protect the rights of these private landowners by removing all
unwanted horses in the checkerboard area. Petitioners claim that, in removing the
horses, BLM violated three federal statutes the Wild Free-Roaming Horses and
Burros Act (Wild Horses Act), National Environmental Policy Act (NEPA),
and Federal Land Policy and Management Act (FLPMA).
Not only do these contentions lack merit, but jurisdiction in this case is
lacking because the case is moot. The horse gather at issue has been completed,
and future gather decisions are too speculative to warrant invoking a mootness
exception. Jurisdictional issues aside, BLM did not violate the Wild Horses Act
1
because it was permitted, and required, to remove the horses from the
checkerboard to protect private land rights. Nor did BLM violate NEPA, because
it properly utilized an established categorical exclusion. And BLM did not violate
FLPMA because it was required to comply with the Wild Horses Act independent
of any duties under FLPMA.
The Petition for Review should be dismissed, and judgment entered in favor
of Federal Respondents.
II.
LEGAL BACKGROUND
A.
The Wild Free-Roaming Horses and Burros Act
In 1971 Congress passed the Wild Horses Act, 16 U.S.C. 1331 et seq.,
because wild horses were vanishing from the West and it sought to preserve these
animals as living symbols of the historic and pioneer spirit of the West. 16
U.S.C. 1331. To accomplish this task, it directed the Secretary to provide for
their protection and management. Id. at 1333 In 1978, as a result of increasing
horse numbers, Congress passed amendments to the Wild Horses Act that provided
the Secretary with greater authority and discretion to manage and remove horses
from rangeland. Id.
There are two distinct obligations under the Wild Horses Act concerning the
removal of wild horses. The first involves management on federal public lands:
Section 3 of the Wild Horses Act directs the Secretary of the Interior to manage
2
wild free-roaming horses and burros 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). [BLM] (as the Secretarys delegate) carries out this function in localized
herd management areas (HMAs) . . . Fund for Animals v. BLM, 460 F.3d 13,
15 (D.C. Cir. 2006); see also 16 U.S.C. 1332(c); 43 C.F.R. 4710.3-1. HMAs
are generally established in broader land use plans. Fund for Animals, 460 F.3d at
15; see also 43 C.F.R. 4710.1. Responsibility for a particular [HMA] rests with
[BLMs] local field and state offices. Fund for Animals, 460 F.3d at 15.
In each HMA, BLM officials are afforded discretion to determine their own
methods for computing appropriate management levels (AMLs) for the wild
horse populations they manage. Id. at 16; see also 16 U.S.C. 1333(b)(1). When
wild horse populations exceed the carrying capacity of the range, or when wild
horses stray outside of a designated HMA, BLM may remove them. See 16 U.S.C.
1332(f) (defining excess animals as wild free-roaming horses or burros (1)
which have been removed from an area by the Secretary pursuant to applicable
law, or (2) which must be removed from an area in order to preserve and maintain
a thriving natural ecological balance and multiple-use relationship in that area.);
43 C.F.R. 4710.4 (management of wild horses shall be undertaken with the
objective of limiting the animals distribution to herd areas.).
BLM also has distinct and independent duties with regard to wild horses on
private lands: Under Section 4 of the Act, if wild horses stray from public lands
onto privately owned land, the owners of such land may inform the nearest Federal
marshal or agent of the Secretary, who shall arrange to have the animals removed.
16 U.S.C. 1334. BLM has interpreted this statutory provision by promulgation
of a regulation, which provides: Upon written request from the private landowner
to any representative of [BLM], the authorized officer shall remove stray wild
horses and burros from private lands as soon as practicable. 43 C.F.R. 4720.2-1.
There is nothing in the statute or regulations that require BLM to remove wild
horses from private lands and return them to public lands.
Congress has provided BLM with a significant amount of discretion as to
how it manages and removes wild horses from public and private lands. See, e.g.,
Am. Horse Prot. Assn v. Frizzell, 403 F. Supp. 1206, 1217 (D. Nev. 1975). In
short, BLM, in its expert capacity as the federal agency in charge of managing wild
horses, is entitled to deference in deciding when and how to remove horses from
the range. Am. Horse Prot. Assn v. Watt, 694 F.2d 1310, 1318 (D.C. Cir. 1982).
B.
Checkerboard Land Authorities
Checkerboard lands became prominent after the passage of the Pacific

Railroad Act of 1862. Act of Jul. 1, 1862, ch. 120, 12 Stat. 489. Under the Act, the
Union Pacific Railroad Company was granted alternating sections of land on either
4
side of the newly-constructed railroad. Id. at 492. This land grant resulted in a
pattern of alternating public and private land sections, commonly called the
checkerboard.
A significant problem with the Checkerboard was that it allowed private
landowners to build fences, entirely on their own private property, which blocked
access to public lands. This problem was addressed by the Unlawful Inclosures Act
of 1885. 43 U.S.C. 1061-65. Under this Act, such fences were declared
unlawful. Id. at 1061; see also Camfield v. United States, 167 U.S. 518 (1897).
The Tenth Circuit and the District of Wyoming, in particular, have been at
the forefront of reconciling the difficult land management issues associated with
balancing the rights of private landowners and the government within the
checkerboard. In Leo Sheep Co. v. United States, 440 U.S. 668 (1979), the
Supreme Court reversed the Tenth Circuit, finding that the government did not
have the right to erect a road through private checkerboard land in order to create
public access to the Seminoe Reservoir. Id. at 682, 687-688 (This Court has
traditionally recognized the special need for certainty and predictability where land
titles are concerned, and we are unwilling to upset settled expectations to
accommodate some ill-defined power to construct public thoroughfares without
compensation.). At the same time, the Tenth Circuit has consistently recognized
that private landowners may not erect fences on private lands to exclude wildlife,
5
including wild horses, from accessing public lands. U.S. ex rel. Bergen v.
Lawrence, 848 F.2d 1502, 1506 (10th Cir. 1988). Similarly, the Tenth Circuit has
held that wild horses grazing on private land within the checkerboard is not an
unconstitutional taking warranting compensation. Mountain States Legal Found.
v. Hodel, 799 F.2d 1423, 1431 (10th Cir. 1986).
C.
NEPA
NEPA was enacted to regulate government activity that significantly

impacts the environment and to help public officials make decisions that are based
on [an] understanding of environmental consequences, and take actions that
protect, restore, and enhance the environment. Colo. Wild v. U.S. Forest Serv.,
435 F.3d 1204, 1209 (10th Cir. 2006) (quoting 40 C.F.R. 1500.1(c)). The
Council on Environmental Quality (CEQ) administers NEPA and promulgates
regulations that are binding on federal agencies. Id. Under NEPA, federal agencies
normally prepare an Environmental Impact Statement (EIS) for major Federal
actions significantly affecting the quality of the human environment. 42 U.S.C.
4332(C). To determine whether an action requires an EIS, the agency may prepare
an environmental assessment (EA). 40 C.F.R. 1501.4(b). An EA is a concise
public document that describes the proposal, studies alternatives, and considers
environmental impacts to determine if an EIS is required. 40 C.F.R. 1508.9.
But in some situations, neither an EA nor an EIS is required. When an

agency identifies types of actions that do not have a significant effect on the
environment, the agency may classify those actions as categorical exclusions
(CATEX) from the traditional NEPA process. Colo. Wild, 435 F.3d at 1209; 40
C.F.R. 1507.3(b)(2), 1508.4; see also 43 C.F.R. 46.205 (Department of the
Interior CATEX regulation). Once an agency has established a CATEX, decisions
as to which specific actions fall within it are reviewed deferentially, and set aside
only if arbitrary and capricious. Citizens Comm. to Save Our Canyons v. U.S.
Forest Serv., 297 F.3d 1012, 1023 (10th Cir. 2002) (citations omitted). Under this
standard, courts decide whether the agency examined relevant data and articulated
a rational connection between the facts found and the decision made. High
Country Citizens Alliance v. U.S. Forest Serv., 203 F.3d 835 (Table), No. 97-1373,
2000 WL 147381, at *4 (10th Cir. Feb. 7, 2000) (unpublished) (quoting Olenhouse
v. Commodity Credit Corp., 42 F.3d 1560, 1574 (10th Cir. 1994)).
III.
FACTUAL BACKGROUND
A.
Wyoming Checkerboard Lands and Wild Horses
BLM is responsible for managing 16 HMAs in Wyoming, five of which are

in BLMs Rock Springs Management Area in the southwestern part of the state.
See Rock Springs Grazing Assn v. Salazar, 935 F. Supp. 2d 1179, 1181-83 (D.
Wyo. 2013) (RSGA). The five HMAs within the Rock Springs Management
7
Area are Little Colorado, White Mountain, Divide Basin, Salt Wells Creek, and
part of Adobe Town. Portions of the latter four contain checkerboard lands.1
Within parts of these HMAs, RSGA owns and leases private checkerboard
land sections for livestock grazing. Id. at 1182 n.2. RSGA also holds grazing
permits for BLM-managed public lands in the checkerboard. Because it is not
fenced, wild horses can move throughout this area (including the private land
sections), as well as the solid-block public lands adjacent to the checkerboard. Id.
at 1182.
In 1975, RSGA requested BLM to remove wild horses from the
checkerboard. BLM stated it was aware of the need to remove the horses, but
lacked the funding to do so. Four years later, RSGA and Mountain States Legal
Foundation filed suit against the Secretary of the Interior, among others, alleging
that the Secretary failed to: (1) comply with 16 U.S.C. 1333 (Wild Horses Act
Section 3); (2) remove horses from private lands at RSGAs request, under 16
U.S.C. 1334 (Section 4); and (3) prevent damage to checkerboard lands. Id. at
1183.
The Adobe Town and Salt Wells Creek HMAs are managed as a single complex due to wild
horse movements. See 2012 Scoping Statement Adobe Town and Salt Wells Creek HMAs at 1
(AR 00453). A portion of the Adobe Town HMA falls within the territory of the Rawlins Field
Office, thus the complex is jointly managed by both the Rock Springs and Rawlins Field Offices.
See id. at 5 (AR 00457).
8
On March 13, 1981, Judge Kerrs initial order in the case directed that the
Rock Springs District office of the [BLM] shall within one year from the date of
this Order [this date was later extended] remove all wild horses from the
checkerboard grazing lands in the Rock Springs District except that number which
the [RSGA] voluntarily agrees to leave in said area. Id. (emphasis added). BLM
complied with the modified order in 1985 by removing all wild horses from the
checkerboard except those horses that RSGA allowed to remain. Id. at 1183-84.
B.
RSGA v. Salazar
On October 4, 2010, RSGA sent a letter to BLMs District Manager

demanding the removal of all wild horses from lands it owned or leased under
Section 4 of the Wild Horses Act. Id. RSGA then filed a petition in this Court on
July 27, 2011, seeking to enforce the 1981 order against the Secretary and BLM.
RSGA, ECF No. 1. Among other requests for relief, RSGA sought an order
directing BLM to remove all wild horses from RSGAs lands within one year. Id.
at 31.
After some preliminary proceedings, the Court allowed many of the
Petitioners in the present case to intervene. RSGA, ECF No. 32 at 8.2 During the
The International Society for the Protection of Mustangs and Burros (ISPMB), the American
Wild Horse Preservation Campaign (AWHPC), and the Cloud Foundation intervened. RSGA,
ECF No. 32. In support of their motion to intervene, these organizations filed the declarations of
Karen Sussman, Suzanne Roy, and Ginger Kathrens. RSGA, ECF No. 17. Three of the
9
course of briefing, BLM filed a declaration committing to a schedule for the

removal of all wild horses from RSGAs checkerboard lands by September 2015,
with follow-up gathers occurring until September 2018. RSGA, ECF No. 67 at 53
9. BLM and RSGA were able to reach a proposed compromise where, among
other commitments, 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]. Consent Decree at 4 (AR
000467).
On February 12, 2013, BLM and RSGA filed a joint motion to dismiss and
the proposed Consent Decree. RSGA, ECF No. 81. On February 25, 2013,
Intervenors filed their opposition to the proposed Consent Decree raising many of
the same arguments they raise in this litigation. RSGA, ECF No. 86. Among other
challenges, Intervenors argued that BLM could not lawfully commit to removing
all wild horses from checkerboard lands because there was no practical means of
differentiating between horses on private land and public land. RSGA, 935 F. Supp.
2d at 1187. BLM did not dispute that it could not differentiate between horses on
private and public lands within the checkerboard at specific points in time, but
argued that this practical reality did not absolve BLM from complying with
Petitioners in the present case (AWHPC, Cloud Foundation, Ginger Kathrens) are the same
Intervenors that participated in RSGA.
10
Section 4 of the Wild Horses Act. RSGA, ECF No. 88 at 6-7 (Intervenors
objections are all premised on the belief that BLM must ignore this statutory
provision and treat all Checkerboard lands as if they were public lands.). Before
entering the Consent Decree, the Court addressed this argument:
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. The BLM is
statutorily obligated to manage wild horses in this area consistent with
RSGAs Section 4 legal rights notwithstanding the [resource
management plan (RMP)] herd management objectives for federal
land, or the particular management challenges presented.
RSGA, 935 F. Supp. 2d at 1187-88 (footnote omitted). The Court also correctly
recognized the value in the Consent Decree because it allows the BLM to
maintain [205-300] wild horses on RSGAs private lands in the White Mountain
HMA, even though RSGA could ask BLM to remove all wild horses. Id. at 1188.
C.
Implementation of the Consent Decree
After the Court approved the Consent Decree, BLM conducted a gather in
2013. BLM gathered 668 wild horses from the Adobe Town and Salt Wells
HMAs, but removed only 586 of them. May 12, 2014 Letter to RSGA from BLM
(May 12 Letter) (AR 003344). BLM returned the remaining horses to the HMAs
to keep the population at the low end of the AML. Id. RSGA promptly objected
to BLMs 2013 gather, specifically to BLMs leaving horses within the
11
checkerboard and returning gathered horses to the range because they would
invariably return to RSGAs private lands. February 4, 2014 Letter to BLM from
RSGA at 1-2 (AR 003313-14). RSGA argued that BLM had committed to
removing all wild horses from the checkerboard area in the Adobe Town and Salt
Wells HMAs, and that by leaving horses on the checkerboard and returning horses
to achieve low AML, BLM did not fulfill its Consent Decree obligations. See e.g.
id. at 5.
While BLM did not agree with many of RSGAs assertions, it recognized, in
a letter dated May 12, 2014, that it had agreed to remove all wild horses on
RSGAs private lands, including Checkerboard lands, in accordance with the
schedule set forth in the Consent Decree, Paragraph 5. May 12 Letter (AR
003344-46). BLM revaluated the . . . gather, and acknowledge[d] that it should
have removed all horses from RSGAs lands in the HMA. Id. at 1. Accordingly,
to ensure compliance with the Consent Decree and in light of RSGAs letter and
comments received during the 2014 gather scoping process, BLM decided to reformulate its plan for the 2014 Divide Basin gather. Id. at 2. BLMs modified plan
would remove all wild horses from the checkerboard portion of the Divide Basin
HMA, and, consistent with the Wild Horses Act, would not return gathered horses
to solid-block public lands in the HMA. Id. at 2. Also, BLM ultimately decided to
conduct supplemental gathers in the checkerboard portions of the Salt Wells Creek
12
and Adobe Town HMAs, with the goal of removing all horses from the
checkerboard. July 18, 2014 Dear Reader Letter (AR 003355); Decision Record
of BLM, Rock Springs Field Office (hereinafter DR) at 1 (AR 003369). BLM
acknowledged that, because the 2014 gather was intended to ensure compliance
with the Consent Decree and Section 4 of the Wild Horses Act, the checkerboard
removal would bring the HMA populations below the established AML. June 11,
2014 Mem. to Assistant Dir. (June 11 Memo) at 2 (AR 003349).
D.
BLMs 2014 Gather
BLM determined that, based on the April 2014 horse population census,
there were approximately 800 horses on the checkerboard portions of the three
HMAs that needed to be removed. BLM Rock Springs Field Office CATEX,
WY-040-CX14-134 (CATEX) at 3 (AR 003358). Next, BLM determined that a
categorical exclusion applied to the gather, thereby fulfilling its NEPA obligation.
CATEX at 5 (AR 003360). In reaching this decision, BLM assembled a team of
11 professionals including Wild Horse and Burro Specialists, a Wildlife Biologist,
Rangeland Management Specialists, and Resource Managers to consider potential
environmental impacts. CATEX at 10 (AR 003365). The team studied the
proposed gather action and reviewed the public comments received during BLMs
2013 public scoping initiative. DR at 1-5 (AR 003369-73). They then considered
twelve established criteria, extraordinary circumstances, that could cause the
13
proposed action to potentially be disqualified from a CATEX. CATEX at 5-10

(AR 3360-65) (identifying 12 extraordinary circumstances such as potential effects
on health and safety, certain natural resources, and endangered species, among
others). BLM determined that there are no extraordinary circumstances
potentially having effects that may significantly affect the environment, and
therefore concluded that a CATEX was appropriate for the gather. Id. at 9-10 (AR
003364-65); DR at 1 (AR 003369).
On July 18, 2014, BLM issued its decision to proceed with the gather. DR
(AR 003369-003380). This decision record committed to the removal of all wild
horses from the checkerboard lands within the Great Divide Basin, Salt Wells
Creek, and Adobe Town HMAs as required by the Wild Horses Act and the
Consent Decree. DR at 1 (AR 003369); CATEX at 3 (AR 003358).
As a result of weather and litigation delays (described below), there were
more horses present in, and thus removed from, the checkerboard lands than
anticipated based on the April 2014 census. Lovell Decl. 3-7, ECF No. 58-1.3
Consistent with the Decision Record, BLMs contractor removed approximately
The facts in this paragraph are relevant to the issue of mootness, discussed below. Mootness is
a threshold jurisdictional issue because the existence of a live case or controversy is a
constitutional prerequisite to federal court subject matter jurisdiction. McClendon v. City of
Albuquerque, 100 F.3d 863, 867 (10th Cir. 1996) (citation omitted). Therefore, documents
outside of the administrative record may be used in determining mootness. Idaho Rivers United
v. U.S. Forest Serv., No. 1:11-CV-95-BLW, 2013 WL 474851, at *5, n.1 (D. Idaho Feb. 7, 2013)
(citing S. Utah Wilderness Alliance v. Smith, 110 F.3d 724, 729 (10th Cir. 1997)).
14
1,263 wild horses from checkerboard lands within the three HMAs. Id. at 5.
Approximately 649 wild horses were left on the adjacent solid-block public lands
within these three HMAs. Id. at 7.
E.
Procedural History
Petitioners filed a Motion for Temporary Restraining Order and/or

Preliminary Injunction on August 8, 2014. ECF No. 17. This Court denied the
Motion based on Petitioners fail[ure] to show they have a probability of success
in their argument that extraordinary circumstances warrant further NEPA
analysis. ECF No. 35. Based upon Petitioners subsequent Emergency Motion for
Injunction Pending Appeal filed on August 28, 2014 (ECF No. 36), the Magistrate
Judge initially enjoined BLM from conducting a gather through September 12,
2014 (ECF No. 41), which was beyond the initially planned gather date (Lovell
Decl. 2, ECF No. 58-1). The Court granted Federal Respondents Emergency
Motion to Reconsider and Vacate the Magistrates Order Granting Injunctive
Relief. ECF No. 51. Petitioners subsequently filed an Emergency Motion Pending
Appeal in the Tenth Circuit, which was denied on September 10, 2014. ECF No.
53. By stipulation of the parties, the Tenth Circuit dismissed Petitioners appeal on
September 22, 2014. ECF No. 56.
15
IV.
STANDARD OF REVIEW
Because the Wild Horses Act, NEPA, and FLPMA do not provide a private
right of action, parties challenging agency action under those statutes must invoke
the judicial review provisions of the Administrative Procedure Act (APA), 5
U.S.C. 701-706. See e.g., Utah v. Babbitt, 137 F.3d 1193, 1203 (10th Cir.
1998). In the Tenth Circuit, district court reviews of agency action under the APA
are processed as appeals. Olenhouse, 42 F.3d at 1580.
The scope of review under the [APA] is narrow and a court is not to
substitute its judgment for that of the agency. Motor Vehicle Mfrs. Assn v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). The court may set aside [the
agencys action] if found to be arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law. Id. at 41 (quoting 5 U.S.C. 706(2)(A)).
Under the arbitrary and capricious standard, administrative action is upheld if the
agency has considered the relevant factors and articulated a rational connection
between the facts found and the choice made. Balt. Gas & Elec. Co. v. Natural
Res. Def. Council, 462 U.S. 87, 105 (1983) (citation omitted). The courts role is
solely to determine whether the decision was based on a consideration of the
relevant factors and whether there has been a clear error of judgment. Citizens to
Pres. Overton Park v. Volpe, 401 U.S. 402, 416 (1971).
16
A presumption of validity attaches to the agency action and the burden of

proof rests with the [parties] who challenge such action. Morris v. U.S. Nuclear
Regulatory Commn, 598 F.3d 677, 691 (10th Cir. 2010) (alteration in original)
(quotation omitted). In deciding disputes that involve primarily issues of fact that
require[] a high level of technical expertise, [the court] must defer to the
informed discretion of the responsible federal agencies. Marsh v. Or. Natural
Res. Council, 490 U.S. 360, 377 (1989) (quoting Kleppe v. Sierra Club, 427 U.S.
390, 412 (1976)); see also Balt. Gas, 462 U.S. at 103 (When examining this kind
of scientific determination . . . a reviewing court must generally be at its most
deferential.). Thus, when dealing with the complex technical issues relating to
application of the Wild Horses Act, NEPA, and FLPMA a federal agency such as
BLM must have discretion to rely on the reasonable opinions of its own qualified
experts . . . . Marsh, 490 U.S. at 378.
V.
ARGUMENT
A.
Petitioners Claims are Moot
The Petition for Review in this case challenged the 2014 gather. ECF No. 1,
1 (contesting the removal of horses from Adobe Town, Salt Wells Creek, and
Great Divide Basin [HMAs] in Wyoming.). On October 9, 2014, the gather in
Adobe Town, Salt Wells Creek, and Great Divide Basin was complete. Lovell
Decl. 5, ECF No. 58-1. No similar gathers are planned in these HMAs in the
17
imminent future, and it is unlikely a gather will take place in the White Mountain
HMA in 2015. Foster Decl. 4, Ex. 1. Thus, this case is moot, none of the
mootness exceptions apply, and the Court lacks subject matter jurisdiction.
Petitioners neglect to address mootness and argue that they have standing.
Petrs Br. at 23. This tact is telling. Petitioners quite clearly brought suit to enjoin
the Adobe Town, Salt Wells, and Great Divide basin gather before it occurred. Pet.
Review 1. Federal Respondents did not challenge standing and Petitioners were
afforded every opportunity to convince this Court and the Tenth Circuit that BLM
should be enjoined prior to the gather. But Petitioners were unsuccessful. The
gather commenced and now that it has been completed, the facts in this case have
fundamentally changed from the point in time when the Petition for Review was
filed. Therefore, mootness, not standing, is the correct jurisdictional inquiry.
Jackson v. Cal. Dep't of Mental Health, 399 F.3d 1069, 1072-73 (9th Cir.)
amended on other grounds, 417 F.3d 1029 (9th Cir. 2005) (explaining the
distinction between standing and mootness).
Under the mootness doctrine, federal courts lack jurisdiction to give
opinions upon moot questions or abstract propositions, or to declare principles or
rules of law which cannot affect the matter in issue in the case before it. Church
of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992). A case generally
becomes moot when the issues presented are no longer live or the parties lack a
18
legally cognizable interest in the outcome. Murphy v. Hunt, 455 U.S. 478, 481
(1982) (internal quotation omitted). This requirement for a live controversy
persists throughout all stages of the litigation. Arizonans for Official English v.
Arizona, 520 U.S. 43, 67 (1997) ([A]n actual controversy must be extant at all
stages of review . . . (citation omitted)); McAlpine v. Thompson, 187 F.3d 1213,
1216 (10th Cir. 1999) (same). Mootness is a threshold issue because the
existence of a live case or controversy is a constitutional prerequisite to federal
court jurisdiction. McClendon v. City of Albuquerque, 100 F.3d 863, 867 (10th
Cir. 1996) (citation omitted). A court has no subject-matter jurisdiction if a case
is moot. Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096,
1109 (10th Cir. 2010) (citation omitted) (Silvery Minnow).
The source of Petitioners alleged injury was the 2014 gather and because it
is complete there is no longer a live controversy within the meaning of Article III.
Nevertheless, Petitioners try to manufacture a live controversy by arguing that
there are various remedial measures that the Court could order to redress
Petitioners injuries . . . . Petrs Br. at 23. This misses the relevant inquiry. The
proposed remedial measures all consist of a hypothetical order instructing BLM to
return the wild horses back to the range from which they were removed. Id. (citing
Petrs Ex. A 11, Ex. B 14, Ex. C 9) (most of the horses removed from these
HMAs are currently in short-term holding facilities and could be returned to the
19
range . . . [this] would help assuage the extreme personal and professional harm
that BLMs decision has caused me.). But the mere availability of an equitable
remedy is not the test for subject matter jurisdiction in this Circuit, especially with
the factual circumstances presented here.
In Silvery Minnow the plaintiffs presented a similar argument and tried to
avoid the conclusion that their case was moot by arguing that the court was
situated to provide some relief, especially declaratory relief regarding the scope of
[the agencys] discretion . . . 601 F.3d at 1112. The Tenth Circuit rejected this
lesser standard and explained that a plaintiff cannot maintain a declaratory or
injunctive action unless he or she can demonstrate a good chance of being likewise
injured [by the defendant] in the future. Id. (quoting Cox v. Phelps Dodge Corp.,
43 F.3d 1345, 1348 (10th Cir. 1994) (alteration in original) (internal quotation
marks omitted)). The possibility of an equitable remedy was not dispositive,
instead the Circuit took a hard look at whether it was truly necessary to issue a
disfavored advisory opinion. Id. at 1111, n.12; see also Chihuahuan Grasslands
Alliance v. Kempthorne, 545 F.3d 884, 891-92 (10th Cir. 2008) ([W]ith respect to
declaratory relief, we look beyond the initial controversy, which may have existed
at one time and decide whether the facts alleged show that there is a substantial
controversy of sufficient immediacy and reality to warrant the issuance of a
declaratory judgment.) (internal quotation marks and citation omitted).
20
Petitioners have made no showing that they are likely to be injured in the future
and oblique references to possible remedial measures in the context of standing is
not enough. There is no longer a live controversy for this Court.
Petitioners fail equally on the facts. The declarants statement, that most of
the horses are being held in short term holding facilities and the Court can simply
order BLM to return them to checkerboard, is inaccurate. The removed horses are
located in multiple facilities throughout Colorado, Utah, and Wyoming, and have
been entered into the national program where they have been readied for adoption.
Foster Decl. 6. More importantly, introducing horses that have been held in
captivity back into the wild poses a number of significant considerations, including
the possible introduction of disease to the wild horse population. Id. at 6-8. It
would be very difficult and potentially unsafe to return these horses to the range.
Id.
In addition, such an order would run directly counter to 16 U.S.C. 1334
and the 2013 Consent Decree. Even if the horses could be released back on to
solid-public lands within the HMAs, those horses will invariably migrate back to
RSGAs lands within the checkerboard defeating the very purpose of BLMs
Section 4 gather. This is not a situation where the hypothetical return of wild
21
horses only affects public lands and BLM, rather it directly affects private lands
and RSGA an entity that lawfully asked for these horses to be removed. 4
Petitioners will likely argue that an exception to the doctrine of mootness
capable of repetition yet evading review applies in this circumstance because
similar gathers will be authorized in the future. This exception . . . is a narrow
one and is only to be used in exceptional situations, Jordan v. Sosa, 654 F.3d
1012, 1034-35 (10th Cir. 2011) (citations omitted), such as where two elements
combine[]: (1) the challenged action was in its duration too short to be fully
litigated prior to its cessation or expiration, and (2) there [is] a reasonable
expectation that the same complaining party [will] be subjected to the same action
again. Id. (quoting Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per curiam)).
Petitioners bear the burden of establishing both elements of the test. Id. (citation
omitted).
Petitioners will likely argue that a California district court found a post-gather challenge was
not moot because it could order BLM to return horses to public lands. In Def. of Animals v. U.S.
Dept. of Interior, 808 F. Supp. 2d 1254, 1266 (E.D. Cal. 2011). Putting aside the legal
differences in the Ninth Circuit where the mootness doctrine is construed much more
expansively than in the Tenth Circuit, this case is factually distinguishable because: (1) the
gather took place on public lands under 16 U.S.C. 1333; and (2) there were other aspects of the
decision that had yet to be implemented and therefore the court could afford the parties
meaningful relief with respect to the challenged decision. Even so, it is questionable whether the
district courts opinion is still good law. See In Defense of Animals v. U.S. Dept. of Interior, 648
F.3d 1012, 1014 (9th Cir. 2011) (per curiam) (panel disagreeing with the dissents position that
effective relief can be granted in this case by returning the removed horses to their natural
habitat.)
22
Here, Petitioners cannot meet their burden. Under the 2013 Consent Decree,
BLM will make a determination as to whether a gather in the White Mountain
HMA is required in 2015. Based on 2014 census data, the projected number of
wild horses is well under the allowable threshold of 300. Foster Decl. 9-10
(projecting current White Mountain wild horses at 182 for 2015). Although BLM
plans to conduct a new census in late February and base its decision on that data, if
the number of wild horses does not rise above the decrees threshold of 300 wild
horses, there will be no gather within any of the contested HMAs in 2015. Id.
Based on BLMs experience, it is likely that no gather will be authorized for White
Mountain HMA in 2015. Foster Decl. 10.
Authorization of gathers in other HMAs is even more speculative. Under
the Consent Decree, the parties contemplated a possible gather in 2016, but only
if necessary to achieve the numbers identified. . . in the Consent Decree. See
Consent Decree 5 (AR 000469). With this criterion, there are no gathers
currently planned or proposed for the Adobe Town, Salt Wells Creek or Divide
Basin HMAs. See Consent Decree 4, 5 (If BLM determines, based on the
results of any census and on projected reproduction rates, that the population in the
Checkerboard lands is likely to exceed 200 wild horses for Salt Wells/Adobe Town
Areas combined or 100 wild horses for Divide Basin.); Foster Decl. 11 (no
additional gathers are planned for the Great Divide Basin, Salt Wells Creek or
23
Adobe Town HMAs.). While it is possible a gather may be necessary in these

HMAs, it is far from imminent.
Even if a gather is authorized in 2015 for White Mountain or the other
HMAs in 2016, any future decision by BLM will be driven by a number of factors
and circumstances unique to that particular gather and may be very different from
the challenged decisions here. For example, a White Mountain gather would not
attempt to remove all of the wild horses from the checkerboard, but rather would
leave some wild horses in the checkerboard consistent with the terms of the
Consent Decree. Consent Decree 1, 5 (AR 000467-69) ([T]he White Mountain
HMA will be maintained at 205-300 wild horses . . . BLM agrees to gather and
remove down to the low end of AML (205) . . . .); Foster Decl. 10. Because of
this difference, it is likely that BLM would employ different legal mechanisms
under the Wild Horses Act and NEPA to achieve this range. Similarly, the trigger
points for a 2016 gather in any of the three HMAs requires a substantial number of
horses to be located or projected in the actual checkerboard, an area where the wild
horse population was recently gathered to very few horses. See Foster Decl. 11
(After initial removal of all wild horses from the checkerboard within these
HMAs, the 2013 Consent Decree allows for wild horses to remain on [private]
RSGA lands, up to certain limits, that would not otherwise occur.); Consent
Decree 4, 5. In short, even if a gather is authorized at some point in the future,
24
the legal parameters of those decisions may look very different than BLMs 2014
decision notice and CATEX.
Petitioners cannot meet their burden of demonstrating that the present
challenge is capable of repetition yet evading review. Possible future agency
actions with no specificity do not warrant application of the exception. Cent. Wyo.
Law Assocs. P.C. v. Denhardt, 60 F.3d. 684, 687 (10th Cir. 1995) (the mere
theoretical possibility of recurrence is insufficient to satisfy capable of repetition
test). At this point in time, there is insufficient specificity and immediacy to
warrant this Court issuing an advisory opinion. Unified Sch. Dist. No. 259 v.
Disability Rights Ctr. of Kan., 491 F.3d 1143, 1150 (10th Cir. 2007) (holding that
mootness applies because future instances of wrongful conduct may be quite
different than that alleged). If BLM authorizes a gather in the future, Petitioners
have demonstrated the ability to challenge that new final agency action in both the
district court and Tenth Circuit. Waiting until there is sufficient specificity as to
the legal parameters of a possible future decision ensures that granting a present
determination . . . will have some effect in the real world. Wyoming v. U.S. Dep't
of Agric., 414 F.3d 1207, 1212 (10th Cir. 2005) (internal quotation marks and
citation omitted). The present factual circumstances are too speculative to warrant
invoking the exceptions to mootness. The Court should dismiss this case for lack
of subject matter jurisdiction.
25
B.
BLM Complied with the Wild Horses Act
Petitioners contend 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
wild horses proposed for removal from the checkerboard are excess horses.
Petrs Br. at 26. Petitioners also assert that BLMs decision to remove wild horses
does not comply with Section 3 because doing so will leave the HMAs with less
than their AMLs. Id. 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 wild horses
move freely within the checkerboard on unfenced public and private land, BLM
cannot abdicate its Section 4 obligations and must exercise its discretion to
harmonize multiple competing mandates within this complicated land management
area. Chevron U.S.A. v. NRDC, 467 U.S. 837, 844-45 (1984) (We have long
recognized that considerable weight should be accorded to an executive
departments construction of a statutory scheme it is entrusted to administer . . . .
(footnote omitted).
Under Section 3, BLM may remove horses from public lands if those horses
are determined to be in excessthat is, over appropriate management levels. 16
U.S.C. 1333; 43 C.F.R. 4710.4, 4720.1. But under Section 4, if BLM receives
a request to remove wild horses from private lands, it shall arrange to have the
animals removed. 16 U.S.C. 1334 (emphasis added). Although BLM can
26
exercise discretion as to how and when it removes these wild horses, the duty to
ultimately remove these animals is non-discretionary. 5 43 C.F.R. 4720.2-1 (BLM
shall remove horses).
Resolving these obligations in the checkerboard presents unique challenges.
The government does not own the private lands it conveyed in the checkerboard.
Leo Sheep Co. v. U.S., 440 U.S. 668, 682, 687-88 (1979). Nor did it reserve any
implied property interest. Id. And under the Unlawful Inclosures Act, RSGA is
prohibited from meaningfully fencing its lands. Camfield, 167 U.S. at 525-28.
RSGA is also prohibited from destroying or removing the wild horses there. 16
U.S.C. 1334, 1338. At the same time, RSGA cannot be compensated for any
damage that occurs from wild horses grazing on its land. Mountain States Legal
Found. v. Hodel, 799 F.2d 1423, 1431 (10th Cir. 1986). 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
Petitioners contend that BLM took inconsistent positions in RSGA v. Salazar and argued that
Section 4 does not authorize BLM to remove all wild horses from Checkerboard lands. Petrs
Br. at 34. Petitioners do not accurately represent BLMs previous arguments. In RSGA the
Petitioners and Amicus requested that this Court should order BLM to remove all wild horses
within one year and direct their removal to permanent holding facilities. BLM responded that
although Section 4 creates a non-discretionary duty to ultimately remove the horses, BLM retains
significant discretion as to when and how it conducts the removal. See RSGA, ECF No. 67 at 41.
BLM objected to the imposition of a one year deadline and direction to remove to permanent
holding facilities because any order directing when or how a removal should occur would
interfere with BLMs discretion under the Wild Horses Act. That was the argument made in
RSGA v. Salazar.
27
protects horses (16 U.S.C. 1334, 1338), it also, in Section 4, requires BLM to
remove horses from private lands when requested to do so.6 This is the mechanism
that harmonizes the competing obligations in the checkerboard.
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. RSGA, ECF No. 86-1 at
7-8; DR at 3-4 (AR 003371-72). 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 may not be excess animals under the Act. 16 U.S.C.
1333. On the other hand, if BLM removes only excess horses that would leave
non-excess horses on (or soon to be on) RSGAs lands, contrary to Section 4 and
BLMs commitment in the Consent Decree. 16 U.S.C. 1334. Clearly, Congress
did not speak to the precise issue of how the Wild Horses Act should be
implemented in the checkerboard. FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120, 132 (2000) ([t]he meaningor ambiguityof certain words or
Petitioners repeatedly claim that BLM has never applied the Wild Horses Act in this manner
before. Petrs Br. at 1 (this case raises a critically important question of first impression . . . .);
id. at 24 (first time in agency history . . . .). This is hyperbole. As discussed extensively in the
RSGA v. Salazar litigation, Judge Kerr encountered this very same dispute, and unequivocally
found that BLM must comply with Section 4 on checkerboard lands by removing all of the
horses unless otherwise agreed upon by RSGA. Supra at 9 (the Rock Springs District office of
the [BLM] shall within one year from the date of this Order remove all wild horses from the
checkerboard grazing lands in the Rock Springs District except that number which the [RSGA]
voluntarily agrees to leave in said area . . . .).
28
phrases may only become evident when placed in context . . . .). It is within this
checkerboard context that there is ambiguity and tension between the statutory
provisions. See RSGA v. Salazar, 935 F. Supp. 2d at 1187-88 (This Court noting
that such tension does 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. (quotation
omitted)). Thus, it was incumbent on BLM to harmonize these conflicting
mandates because, as the Tenth Circuit noted, the [f]act is, federal law doesnt
always point harmoniously in a single directionand when it comes to land policy
this is perhaps particularly true. The Wilderness Socy v. Kane County, Utah, 632
F.3d 1162, 1178 (10th Cir. 2011).
Though Petitioners correctly assert that Sections 3 and 4 apply to public and
private lands respectively, they are wrong to assert that the plain language of
Section 3 governs the gather here. The plain language of the Act simply does not
speak to what the agency should do when public and private lands are so
intertwined so that it is impossible to manage them separately. Congress delegated
a high degree of discretionary authority to BLM in its management of wild
horses. Watt, 694 F.2d at 1316, n.29 (citing H.R. Rep. No. 92681, 92d Cong., 1st
Sess. 67 (1971), U.S. Code Cong. & Admin. News at 2159 (1971)). And here,
BLM reasonably exercised this discretion to resolve the ambiguity and tension
29
under the Wild Horses Act by interpreting Section 4 to authorize the 2014 gather in
the checkerboard, even though some horses may temporarily be located on public
lands. This interpretation harmonizes BLMs competing obligations under the Act,
the case law, and the Consent Decree. 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
therefore not disturb an agencys choice if it represents a reasonable
accommodation of conflicting policies that were committed to the agencys care by
the statute . . . . City of New York, 486 U.S. at 64; see also Natl Assn of Home
Builders v. Defenders of Wildlife, 551 U.S. 644, 666 (2007) (deferring to an
agencys reasonable resolution of two competing statutory mandates).
Petitioners nevertheless insist that interpreting the Wild Horses Act in such a
way creates an exception to Section 3 that Congress did not intend. Petrs Br. at
31 (Section 3 of the WHA is crystal clear . . .). Nothing in the statute 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); S. Rep. No. 92242, at 3 (1971). And it was certainly
attentive to private land interests by limiting BLMs discretion in Section 4.
30
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 horses. H.R. Rep. No. 951122, at 23 (1978); Pub. L. No.
95514, 2(a)(6), 92 Stat. 1803 (1978), 43 U.S.C. 1901(a)(6).
Petitioners insist that BLM cannot go forward with the gather because some
of the horses may be removed from public lands in the checkerboard. Petrs Br. at
29. This insistence effectively asks this Court to ignore Section 4 and substitute its
interpretation of the statute in place of the answer reached by BLM. While
Petitioners would have obviously reached a different result, this Court should
respect BLMs considered judgment and reasonable resolution of the statutory
language, legislative history, and competing obligations. Chevron, 467 U.S. at 843;
Regions Hosp. v. Shalala, 522 U.S. 448, 457 (1998); Home Builders, 551 U.S. at
666 (An agency cannot simultaneously obey the differing mandates . . . and
consequently the statutory language . . . does not itself provide clear guidance as to
which command must give way. In this situation, it is appropriate to look to the
implementing agency's expert interpretation . . . .).
Petitioners also suggest that the gather is designed to preemptively prevent
horses from straying onto private lands and resolves a hypothetical problem that
BLM is not required to address. Petrs Br. at 28. Petitioners mischaracterize the
gatherwhich is not a preemptive solution to a hypothetical problem, but a
31
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, RSGAs unequivocal demand to remove wild horses from its
lands, and the fact that horses repeatedly roam on and off private lands there.
Finally, Petitioners argue that BLM has not provided any explanation or
interpretation of the ambiguity and tension in the statutory scheme as applied in the
checkerboard context. Petrs Br. at 32. This too is incorrect. The agency
explained:
The BLM acknowledges that in discharging its duties under Section 4
of the WHA wild horses will be also removed the public land portions
of the checkerboard. However, due to the unique pattern of land
ownership, and as recognized in the Consent Decree, it is practicably
infeasible for the BLM to meet its obligations under Section 4 of the
WHA while removing wild horses solely from the private lands
sections of the checkerboard.
AR 003371-72. BLM expounded by explaining why it had shifted from an EA:
Through this gather, the BLM is not removing excess wild horses
from the public lands under Section 3 of the WHA, 16 U.S.C. 1333.
While in its 2013 scoping notice, the BLM contemplated a gather and
removal under both Section 3 and Section 4 of the WHA, in response
to the scoping comments it received, the BLM now clarifies that it
will remove wild horses from the checkerboard as required by Section
4 of the WHA and the Consent Decree.
AR 003359. BLM also explained that the 2014 gather did not alter the existing
AMLs in the respective HMAs, and that it was cognizant that it would need to alter
those levels through a plan amendment process consistent with FLPMA. AR
32
003345 (Thus, BLM views any changes to AMLs or HMA boundaries as being
outside the scope of the purpose and need for the project level gather analyses.). 7
The administrative record is replete with BLMs explanation and interpretation of
the Wild Horses Act, and its rationale can be reasonably discerned. AR 3354; AR
3341; see also United Keetoowah Band of Cherokee Indians of Okla. v. U.S. Dept
of Housing and Urban Dev., 567 F.3d 1235, 1239 (10th Cir. 2009).
BLM seeks to discharge its Section 4 duty and comply with the RSGA
Consent Decree in a way that resolves conflicting obligations over a landscape
presenting unique and difficult management issues. Indeed, there are very few
HMAs in the country where such extensive private checkerboard lands are
interspersed with solid-block public lands within an HMA boundary. BLMs
interpretation of its obligations is reasonable and this Court should not disturb it
Petitioners argue that BLM presented inconsistent positions to the Court with respect to
affording the public an opportunity to comment on management changes within the HMAs.
Petrs Br. at 12-13. As they did in the previous litigation, Petitioners mischaracterize the 2013
Consent Decree and BLMs position. RSGA, ECF No.89 at 7. The 2013 Consent Decree had
two basic but independent components: (1) an obligation to remove wild horses from
checkerboard lands under Section 4; and (2) a commitment to scope management changes in the
HMAs. AR 00467. Petitioners conflate these two obligations by arguing that BLM committed to
certain NEPA and FLPMA processes before performing its Section 4 obligations. Petrs Br. at
12-13. This is inaccurate and reflects Petitioners previously rejected contention that BLM
cannot conduct a lawful Section 4 gather on the checkerboard because it implicates public lands.
To the extent BLM changes how it manages public lands within the HMAs, including AMLs, it
will undergo the appropriate NEPA and FLPMA processes. This is best evidenced by the
scoping processes that began on the RMPs. AR 00381. But BLM does not need to complete this
lengthy plan amendment process before a Section 4 gather because the legal obligation is
independent from its management obligations under FLPMA. It is this distinction that
Petitioners fail to acknowledge.
33
because there is no indication in the statute or legislative history that it is not one
that Congress would have sanctioned. City of New York, 486 U.S. at 64.
C.
BLM Fully Complied with NEPA
CEQs NEPA regulations authorize agencies to use a CATEX for categories

of actions which do not individually or cumulatively have a significant effect on
the human environment and which have been found to have no such effect in
procedures adopted by a Federal agency . . . . 40 C.F.R. 1508.4 (citing 40 C.F.R.
1507.3); see also 43 C.F.R. 46.205 (Department of the Interior CATEX
regulation). Agencies must evaluate each situation to determine if any
extraordinary circumstances render a CATEX inappropriate. Id. Where an
agency reasonably determines that a proposed action falls within a CATEX and
that there are no extraordinary circumstances, no further NEPA analysis is
required. Colorado Wild v. U.S. Forest Serv., 435 F.3d 1204, 1209 (10th Cir.
2006). In such a case, neither an EA nor an EIS is necessary, but the agency has
still complied with NEPA. Id. Here, Petitioners assert that a CATEX was
inappropriate and that an EA or EIS was instead required as part of the gather
review process. Petrs Br. 40. Petitioners are mistaken.
i.
BLM Correctly Determined that a CATEX was Appropriate
Petitioners assert that a CATEX is inappropriate here because the gather was
not limited to private lands, and alternatively that extraordinary circumstances
34
apply merely because the gather may have had environmental impacts. Petrs Br.
40-45. Neither claim has merit.
First, BLM reasonably determined that the CATEX was well-suited for this
gather, and the Tenth Circuit has made clear that this decision will be set aside
only if the agency acted arbitrarily and capriciously. See e.g. Citizens Comm., 297
F.3d at 1023. BLM readily acknowledges that the CATEX used for this gather,
516 DM 11.9 D(4) (AR 003389), refers to the removal of horses from private
lands. See CATEX at 5 (AR 003360). But given the unique challenges presented
by checkerboard land management, BLMs decision to utilize the private-land
CATEX was reasonable. As this Court and the Tenth Circuit have recognized,
there are considerable difficulties imposed upon land management by
checkerboard land patterns. 8 Earlier in this case, this Court noted that such land
management challenges 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 v.
Salazar, 935 F. Supp. 2d at 1187-88 (footnote omitted). Indeed, BLMs Decision
Record found that:
See Order Denying Petrs Motion for a TRO and/or Prelim. Inj., ECF No. 35 at 12 (Both this
Court and the Tenth Circuit recognized that BLM is forced to manage the alternating land pattern
of the checkerboard as a single unit.); see also Mountain States, 799 F.2d at 1434-35 (Noting
that BLM manages checkerboard as if a single unit.)
35
due to the unique pattern of land ownership, and as recognized by the

Consent Decree, it is practicably infeasible for BLM to meet its
obligations under Section 4 of the [Wild Horses Act] while removing
wild horses solely from the private lands sections of the checkerboard.
DR at 3-4 (AR 003371-72); see also CATEX at 4 (AR 003360). Therefore, [t]he
only practical way this mandate [under Section 4] can be honored in an unfenced
checkerboard area is by removal of all the horses. Am. Horse Prot. Assn v.
Andrus, 460 F. Supp. 880, 885 (D. Nev. 1978), revd in part on other grounds, 608
F.2d 811 (9th Cir. 1979). This is not an unreasonable conclusion.
BLM removed the horses from private land, as required, and reasonably did
so by gathering all the horses in the checkerboard. Such a gather is conducted
under Section 4 of the Wild Horses Act, pertaining to private land gathers, and
therefore the CATEX employed was appropriate. Petitioners cannot credibly
assert that BLM failed in its duty to articulate[] a rational connection between the
facts found and the decision made in applying the CATEX here. See High
Country Citizens Alliance v. U.S. Forest Serv., 203 F.3d 835, at *4 (10th Cir.
2000) (quoting Olenhouse, 42 F.3d at 1574); Wild Earth Guardians v. U.S. Forest
Serv., 668 F. Supp. 2d 1314, 1333 (D.N.M. 2009) (courts analyze whether a
CATEX was supported by reasonable facts and conclusions).
Next, when considering a proposed action under a CATEX, an agency is
required to determine whether there are extraordinary circumstances that would
cause the action to have a significant environmental effect. 43 C.F.R. 46.205(c)
36
(CEQ regulation); 40 C.F.R. 1508.4 (BLM regulation requiring analysis of

specific extraordinary circumstances). BLM adequately did so here by considering
whether any of the twelve extraordinary circumstances identified in the agencys
NEPA implementation procedures (43 C.F.R. 46.215) would occur as a result of
the gather. BLM considered, among other things, whether the gather would result
in significant impacts on natural and cultural resources, drinking water aquifers, or
other ecologically significant or critical areas. CATEX at 5-10 (AR 003360-65).
In making this determination, BLM relied on a team of 11 specialists and resource
managers including a Wild Horse and Burro Specialist, a Rangeland Management
Specialist, a Wildlife Biologist, a Riparian Specialist, and various field managers.
Id. at 10 (AR 003365). BLMs professionals concluded, inter alia, that:
There are no unique or unknown risks associated with this removal of
wild horses from the checkerboard land. The checkerboard land is
within HMAs and has been managed for wild horses, including gather
operations for decades. The effects of gather operations on wild horses
are well understood and this removal is not expected to create highly
uncertain environmental effects.
* *
*
No significant impacts to any resources are expected from this removal,
including to any unique geographic characteristics. No such unique
geographic characteristics or ecologically significant or critical areas
are located within the checkerboard.
Id. at 6-10. Given these findings, BLMs Field Managers concluded in their
Decision Record that a CATEX was appropriate here because there are no
extraordinary circumstances potentially having effects that may significantly affect
37
the environment. DR at 1 (AR 003369). This determination is entitled to

deference. See Citizens Comm., 297 F.3d at 1023; see also Citizens Comm. to
Save Our Canyons v. Krueger, 513 F.3d 1169, 1176 (10th Cir. 2008) (a
presumption of validity attaches to agency action . . . (quotation omitted)).
Despite BLMs clear analysis of potential extraordinary circumstances,
Petitioners claim that BLMs review was improper and thus BLM jettisoned its
duty under NEPA by failing to prepare an EA or EIS. Petrs Br. at 40. But
Petitioners offer no meaningful or cognizable legal or factual support for this
contention. Petitioners first argue that a CATEX must be improper because BLM
has previously recognized that removing all wild horses from the checkerboard
lands will have some impacts . . . Petrs Br. at 44 (quoting AR 3341) (citation
omitted). But to contend that, in determining no extraordinary circumstances exist,
BLM acted arbitrarily and capriciously merely because BLM also stated there
would be some impacts clearly misstates the CATEX standard of extraordinary
circumstances. That standard simply requires BLM to analyze the regulations
specifically delineated effects. See 43 C.F.R. 46.215 (Regulation listing specific
circumstances for BLM to consider); Utah Envtl. Cong. v. Bosworth, 443 F.3d 732,
741-42 (10th Cir. 2006) (stating that, to determine whether extraordinary
circumstance exist, the agency should reference its listed regulatory factors). And
an extraordinary circumstance is found only when there exists a potential for a
38
significant effect on a resource condition. Id. at 743. BLM satisfied the

applicable standard here.
Next, Petitioners claim that a roundup of this magnitude inevitably affects
myriad natural resources . . . . Petrs Br. at 42. But Petitioners point to nowhere
in the administrative record 9 to provide factual backing for this claim. They do
cite to a portion of the record (AR 00656-58) which list[s] various potential
impacts of roundups. But merely listing potential impacts from gathers does not
indicate that such impacts would inevitably be realized in this gather, nor, more
importantly, to what extent. Petitioners ignore that BLM in fact considered the
potential impacts to natural resources in its review of the potential extraordinary
circumstances. That is all that NEPA requires. See Utah Envtl. Cong. v. Russell,
518 F.3d 817, 821 (10th Cir. 2008) (NEPA dictates the process by which federal
agencies must examine environmental impacts, but does not impose substantive
limits on agency conduct. (citation omitted)).
Petitioners also argue that the gather would somehow be disruptive to a
particular band of horses, and that genetic diversity would be harmed by BLMs
managing of wild horses below AML. Petrs Br. 42-43. But Petitioners provide
no evidence for their band theory, nor do they argue that these were issues brought
Which includes public comments from four of the six Petitioners submitted during the EA
scoping process for the proposed 2014 gather. See AR 001256-001269, 001274-001298.
39
before the agency via the public comment period during the EA scoping phase.
And BLM is not managing horses below AML. As clearly stated by BLM,
[t]his removal is not focused on the management of the Great Divide Basin herd;
but rather [is] a compliance action for the Consent Decree. June 11 Memo at 2
(AR 003349). As far as managing the HMAs at issue, BLM is currently in the
process of revising or amending the RMPs covering the HMAs, to include analysis
of current HMA circumstances and populations and consider various management
alternatives. See CATEX at 5 (AR 003360). But again, BLMs only duty was to
determine if any of the defined extraordinary circumstances applied to this gather.
And again, BLM fulfilled that duty.
Petitioners have presented no basis for finding that BLM failed to adequately
conduct its NEPA review or that an EIS or EA would be required for this action.
Accordingly, Petitioners cannot meet their burden of proof.
ii.
Public Involvement is not Required in CATEX Decisions
Petitioners allege that BLM violated NEPA via a complete failure to

involve . . . the public in its decision . . . Petrs Br. at 45 n.14 (first omission in
original) (quotation omitted). But as the Tenth Circuit has confirmed, there is no
public comment requirement when an agency invokes, or considers invoking, an
40
established CATEX. 10 Colo. Wild, 435 F.3d at 1219 (CEQ regulations do not . . .
require public involvement in an agency's decision to employ a [CATEX] once that
[CATEX] has been approved.). And because BLM ultimately decided to utilize a
CATEX, there is no public involvement requirement tied to BLMs initial scoping
process for a potential 2014-gather EA. Utah Envtl. Cong., 443 F.3d at 740, n.5
(holding that utilization of a CATEX obviated the requirement for public comment
on a draft EA prepared prior to the agencys CATEX decision).
iii.
BLM did not Depart from its own Guidance or Past Practice
Finally, Petitioners incorrectly assert that BLM Manual 4720.2.21 and .3

required preparation of an EA for the gather, and that BLMs action in this case
departs from that guidance. Petrs Br. 43-44. Not so. BLM Manual sections
4720.2.21 and .3 are inapplicable here, as they relate to the removal of excess
horses under Section 3 of the Wild Horses Act.11 As detailed in the Decision
10
As a practical matter, BLM did ask for and accept comments well in advance of the gather. In
December 2013, BLM issued a scoping notice for a potential EA for a Great Divide Basin
checkerboard gather. Scoping Statement Great Divide Basin HMA at 3 (AR 00824). Four of
the six Petitioners in this case commented. See AR 001256-001269, 001274-001298. While
BLM ultimately decided to proceed in a different manner, the DR states that BLM duly
considered the public comments received. See DR at 2, 4 (AR 003370, 003372).
11
The two applicable objectives of the manual are [t]o control population size within [AML] to
assure wild horses . . . are managed in balance with other uses and the productive capacity of the
habitat . . . and [t]o remove excess wild horses . . . to . . . maintain AML on all HMAs. BLM
Manual 4720.02(B), (C). This language directly refers to Section 3 of the Wild Horses Act,
which states: Where an overpopulation exists . . . and . . . action is necessary to remove excess
animals, [BLM] shall immediately remove excess animals . . . to achieve [AML]. 16 U.S.C.
1333(b).
41
Record and above, the gather in this case was undertaken pursuant to Section 4 of
the Act. Further, the Manual language quoted by Petitioners states only that an
appropriate NEPA analysis is necessary. BLM Manual 4720.2.21(6). Because
BLM has demonstrated that its use of the CATEX complied with NEPA, thus
constituting appropriate NEPA analysis, Petitioners claim fails. 12
Petitioners also contend that BLMs longstanding practice has been to
invariably prepare at least an EA for all permanent wild horse roundups on public
land. Petrs Br. 43-44. Again, BLM reasonably conducted this gather under
Section 4 of the Wild Horses Act as a gather from private land. Therefore,
Petitioners citation to BLMs past practices ignores the unique facts of this
gather.13 And BLM does rely on categorical exclusions for gathers when it is
appropriate to do so, as it is here. See e.g. CATEX DOI-BLM-UT-COl0-20140037-CX, Private Land Horse Trapping, BLM Cedar City Field Office (AR
003321-35). But even if Petitioners were correct in asserting that BLM typically
prepares EAs for wild horse gathers of the kind at issue here, Petitioners would still
be required to sustain their burden of showing that the Decision Record was
12
Even if BLM did depart from its own guidance (which it did not) it would not render the
CATEX inapplicable. See Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000) (referring to
interpretations contained in policy statements and agency manuals as lacking the force of law).
13
Petitioners cite (Petrs Br. 44) an email in the administrative record (AR 003341) for the
proposition that a typical herd management gather requires an EA. But as stated in that very
same email: This removal is not a typical gather . . . . AR 003341.
42
arbitrary and capricious. See FCC v. Fox Television Stations, 556 U.S. 502, 514
(2009) (APAs standard of review is not more searching when an agencys
decision veers from prior policy.). For the reasons stated above, Petitioners have
not carried that burden here.
D.
BLMs Action did not Contravene FLPMA
In its CATEX and associated Decision Record, BLM accurately stated that
while FLPMA applies to BLMs management of public lands, it does not preempt
the Wild Horses Act, nor does it apply to private lands. CATEX at 4 (AR 003359);
DR at 3 (AR003371). Petitioners allege that BLM claimed that merely because
FLPMA does not apply to private lands, it does not apply here. Petrs Br. at 38,
n.8 (citing AR 003359). BLM made no such assertion. Rather, after addressing
how FLPMA applies to the public land sections at issue, BLM merely noted that
the RMPs, promulgated pursuant to FLPMA, do not apply to the private land
blocks. CATEX at 4 (AR 003359); DR at 3 (AR 003371).
Equally inaccurate is Petitioners claim that BLM willfully ignore[d] that
substantial portions of public lands are at issue here. Petrs Br. at 38, n.8. To the
contrary, BLM has clearly acknowledged that a large portion of the lands at issue
here are public and thus subject to FLPMA. See e.g. CATEX at 1 (AR 003356)
(1,695,517 acres [of the HMAs] are public . . .). Congress, however, directed
that the policies of FLPMA must be construed as supplemental to and not in
43
derogation of the purposes for which public lands are administered under other
provisions of law. 43 U.S.C. 1701(b); see CATEX at 4 (AR 003359). Both the
Wild Horses Act and Consent Decree are clear provisions of law that apply in
this case. And both provisions require a specific action by BLM: the removal of
wild horses located on the checkerboard lands in the HMAs at issue. As confirmed
by this Court in the previous litigation, 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 1188.
Thus, insofar as Petitioners contend that complying with the Wild Horses Act and
the Consent Decree violates FLPMA, that contention is incorrect.
Nevertheless, to ensure ongoing compliance with FLPMA, BLM is in the
process of conducting an RMP revision and amendment for the applicable RMPs.
Petitioners argue that BLM is now managing the applicable HMAs below the
AMLs previously established in the currently operative 2008 Rawlins RMP and
1997 Green River RMP. Petrs Br. at 37 (emphasis omitted). Not so. While the
circumstances of the Consent Decree and the WHA have temporarily brought the
population counts below AML for the three HMAs, a fact readily acknowledged by
44
BLM throughout the gather planning process,14 BLMs range management process
is designed to address such issues. FLPMA requires that BLM develop, maintain,
and, when appropriate, revise land use plans . . . 43 U.S.C. 1712 (emphasis
added). BLM is exercising its discretion to revise the two applicable RMPs, but
until that process is complete BLM will continue to manage these lands under the
applicable RMPs. See e.g. CATEX at 5 (AR 003360) (BLM intends to address its
future management of wild horses on areas of the public lands within these HMAs
through a separate land use planning process which will consider adjusting AML
for the HMAs, among other alternatives.).
BLM has delicately balanced its obligations under the Wild Horses Act,
FLPMA, and the Consent Decree. In doing so, BLM was not flouting its duties
under FLPMA as Petitioners claim (Petrs Br. at 38). Rather, BLM continues to
meet its ongoing FLPMA obligations while also complying with its independent
legal duties.
VI.
CONCLUSION
For the foregoing reasons, Federal Respondents respectfully request that the
Petition for Review be denied and judgment entered in favor on our behalf.
14
See e.g. June 11 Memo at 2 (AR 003349) (Anticipating that the 2014 gather would result in the
Divide Basin HMA being below the low AML).
45
Dated: January 20, 2014.
CHRISTOPHER A. CROFTS
United States Attorney
NICHOLAS VASSALLO
Assistant United States Attorney
P.O. Box 668
Cheyenne, WY 82003-0668
Telephone: 307-772-2124
nick.vassallo@usdoj.gov
JOHN C. CRUDEN
Assistant Attorney General
United States Department of Justice
Environment & Natural Resources
Division
SETH M. BARSKY, Chief
/s/ Coby Howell
COBY HOWELL
Senior Trial Attorney
Wildlife & Marine Resources Section
c/o U.S. Attorneys Office
1000 SW Third Avenue
Portland, OR 97204-2902
(503) 727-1000
(503) 727-1117 (fx)
coby.howell@usdoj.gov
/s/ Desmond T. Ready
DESMOND T. READY
Trial Attorney
Natural Resources Section
601 D Street N.W., Room 3131
46
Washington, D.C. 20004

(202) 305-0466
desmond.ready@usdoj.gov
Of Counsel:
ARTHUR R. KLEVEN
Department of the Interior
Office of the Solicitor
Rocky Mountain Region
Lakewood, Colorado
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing will be e-filed
and will be automatically served upon counsel of record, all of whom appear to be
subscribed to receive notice from the ECF system.
/s/ Coby Howell
47

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Case 2:14-cv-00152-NDF Document 71 Filed 01/20/15 Page 1 of 54

FEDERAL RESPONDENTS BRIEF

Case 2:14-cv-00152-NDF Document 71 Filed 01/20/15 Page 2 of 54

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

The Wild Free-Roaming Horses and Burros Act ..................................... 2

Checkerboard Land Authorities ................................................................ 4

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

Wyoming Checkerboard Lands and Wild Horses .................................... 7

RSGA v. Salazar ....................................................................................... 9

Implementation of the Consent Decree .................................................. 11

BLMs 2014 Gather ................................................................................ 13

Procedural History .................................................................................. 15

STANDARD OF REVIEW ............................................................................... 16

Petitioners Claims are Moot .................................................................. 17

BLM Complied with the Wild Horses Act ............................................. 26

BLM Fully Complied with NEPA .......................................................... 34

BLM Correctly Determined that a CATEX was Appropriate ..... 34

Public Involvement is not Required in CATEX Decisions ......... 40

BLMs Actions did not Contravene FLPMA ......................................... 43

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Case 2:14-cv-00152-NDF Document 71 Filed 01/20/15 Page 8 of 54

Neil Kornze, Director of the Bureau of Land Management (BLM), (collectively

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The Wild Free-Roaming Horses and Burros Act

Case 2:14-cv-00152-NDF Document 71 Filed 01/20/15 Page 10 of 54

Case 2:14-cv-00152-NDF Document 71 Filed 01/20/15 Page 11 of 54

Checkerboard Land Authorities

Checkerboard lands became prominent after the passage of the Pacific

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NEPA was enacted to regulate government activity that significantly

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But in some situations, neither an EA nor an EIS is required. When an

Wyoming Checkerboard Lands and Wild Horses

BLM is responsible for managing 16 HMAs in Wyoming, five of which are

Case 2:14-cv-00152-NDF Document 71 Filed 01/20/15 Page 15 of 54

Case 2:14-cv-00152-NDF Document 71 Filed 01/20/15 Page 16 of 54

On October 4, 2010, RSGA sent a letter to BLMs District Manager

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course of briefing, BLM filed a declaration committing to a schedule for the

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Implementation of the Consent Decree

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Case 2:14-cv-00152-NDF Document 71 Filed 01/20/15 Page 20 of 54

BLMs 2014 Gather

Case 2:14-cv-00152-NDF Document 71 Filed 01/20/15 Page 21 of 54

proposed action to potentially be disqualified from a CATEX. CATEX at 5-10

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Petitioners filed a Motion for Temporary Restraining Order and/or

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Case 2:14-cv-00152-NDF Document 71 Filed 01/20/15 Page 24 of 54

A presumption of validity attaches to the agency action and the burden of

Petitioners Claims are Moot

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Case 2:14-cv-00152-NDF Document 71 Filed 01/20/15 Page 26 of 54

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