Case 2:14-cv-00248-NDF Document 37 Filed 04/06/15 Page 1 of 31

William Perry Pendley, Esq.

MOUNTAIN STATES LEGAL FOUNDATION
2596 South Lewis Way
Lakewood, Colorado 80227
Phone: (303) 292-2021
Fax: (303) 292-1980
wppendley@mountainstateslegal.com
Attorney for Wyoming Stock Growers Association
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
STATE OF WYOMING,
Petitioner,

Case No. 14-cv-00248-NDF

v.
UNITED STATES DEPARTMENT OF THE
INTERIOR, et al.,
Respondents,
and
AMERICAN WILD HORSE
PRESERVATION CAMPAIGN, et al.,
Respondent-Intervenors,
FRIENDS OF ANIMALS, et al.,
Respondent-Intervenors.
AMICUS CURIAE BRIEF OF THE WYOMING STOCK GROWERS ASSOCIATION IN
SUPPORT OF PETITIONER

Case 2:14-cv-00248-NDF Document 37 Filed 04/06/15 Page 2 of 31

CORPORATE DISCLOSURE STATEMENT

The undersigned attorney for Amicus Curiae, Wyoming Stock Growers Association
(WSGA), certifies that WSGA is a nonprofit corporation that has no parent corporation and
has never issued any stock.
DATED this 2nd day of April, 2015.
Respectfully submitted,
/s/ William Perry Pendley
William Perry Pendley, Esq.
MOUNTAIN STATES LEGAL FOUNDATION
2596 S. Lewis Way
Lakewood, CO 80227
Phone: (303) 292-2021
Fax: (303) 292-1980
wppendley@mountainstateslegal.com

ii

Case 2:14-cv-00248-NDF Document 37 Filed 04/06/15 Page 3 of 31

TABLE OF CONTENTS
Page
CORPORATE DISCLOSURE STATEMENT .........................................................

ii

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

iv

IDENTITY AND INTEREST OF AMICUS CURIAE ..............................................

STATEMENT OF THE CASE..................................................................................

I.

LEGAL BACKGROUND .............................................................................

A.

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

B.

The Relevant Resource Management Plans .......................................

FACTUAL BACKGROUND ........................................................................

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

ARGUMENT .............................................................................................................

I.

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

II.

WYOMING PROPERLY STATED A FAILURE TO ACT CLAIM ..........

11

II.

A.

Respondents Have Failed To Take A Discrete Agency Action

That They Are Required To Take By Law ........................................
1.

12

The Secretarys mandatory duty to remove excess wild

horses is a discrete agency action ..........................................

12

The Secretary is required to remove excess wild horses

when the evidence demonstrates that an overpopulation
exists ......................................................................................

14

Congress Intended For The Mandatory Duty To Remove

Excess Wild Horses To Be A Discrete, Required Agency
Action .................................................................................................

19

CONCLUSION ..........................................................................................................

20

CERTIFICATE OF COMPLIANCE .........................................................................

22

CERTIFICATE OF SERVICE ..................................................................................

23

2.

B.

iii

Case 2:14-cv-00248-NDF Document 37 Filed 04/06/15 Page 4 of 31

TABLE OF AUTHORITIES
Page
Cases
Atl. & Gulf Stevedores, Inc. v. Donovan,
274 F.2d 794 (5th Cir. 1960) ...............................................................................

11

Am. Horse Prot. Assn v. Watt,

694 F.2d 1310 (D.C. Cir. 1982) ...........................................................................

Arbaugh v. Y&H Corp.,

546 U.S. 500 (2006) .............................................................................................

10

Ashcroft v. Iqbal,
556 U.S. 662 (2009) .............................................................................................

10

Bell Atlantic Corp. v. Twombly,

550 U.S. 544 (2007) .............................................................................................

10

Christy Sports, LLC v. Deer Valley Resort Co.,

555 F.3d 1188 (10th Cir. 2009) ...........................................................................

10

Cloud Found., Inc. v. Salazar,

999 F. Supp. 2d 117 (D.D.C. 2013) .....................................................................

11

Colorado Wild Horse and Burro Coalition v. Salazar,

639 F. Supp. 2d 87 (D.D.C. 2009) .......................................................................

17

Forest Guardians v. Babbitt,

174 F.3d 1178 (10th Cir. 1999) ...........................................................................

12

Harlow v. Fitzgerald,
457 U.S. 800 (1982) .............................................................................................

11

HCSC-Laundry v. United States,

450 U.S. 1 (1981) .................................................................................................

14

In Defense of Animals v. Salazar,

675 F. Supp. 2d 89 (D.D.C. 2009) .......................................................................

13

In Defense of Animals v. U.S. Dept of Interior,

909 F. Supp. 2d 1178 (E.D. Cal. 2012)................................................................

6, 15, 16, 18

In Defense of Animals v. U.S. Dept of Interior,

751 F.3d 1054 (9th Cir. 2014) .............................................................................

passim

iv

Case 2:14-cv-00248-NDF Document 37 Filed 04/06/15 Page 5 of 31

Kane County Utah v. Salazar,

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

9, 10

Larson v. Lujan,
976 F. Supp. 1406 (D. Utah 1992) .......................................................................

18

Lexmark Intl, Inc. v. Static Control Components, Inc.,

134 S. Ct. 1377 (2014) ........................................................................................

10

Lone Star Indus., Inc. v. Horman Family Trust,

960 F.2d 917 (10th Cir. 1992) .............................................................................

10

Mountain States Legal Found. v. Hodel,

799 F.2d 1423 (10th Cir. 1986) ...........................................................................

Norton v. S. Utah Wilderness Alliance,

542 U.S. 55 (2004) ...............................................................................................

passim

Olenhouse v. Commodity Credit Corp.,

42 F.3d 1560 (10th Cir. 1994) .............................................................................

ONRC Action v. Bureau of Land Mgmt.,

150 F. 3d 1132 (9th Cir. 1998) ............................................................................

11

Roaring Springs Associates v. Andrus,

471 F. Supp. 522 (D. Or. 1978) ...........................................................................

18

Robbins v. Okla.,
519 F.3d 1242 (10th Cir. 2008) ...........................................................................

10

Scheuer v. Rhodes,
416 U.S. 232 (1974) .............................................................................................

11

Sierra Club v. Thomas,

828 F.2d 783 (D.C. Cir. 1987) .............................................................................

11

Steel Co. v. Citizens for a Better Envt,

523 U.S. 83 (1998) ...............................................................................................

10

Wyoming v. U.S. Dept of Interior,

360 F. Supp. 2d 1214 (D. Wyo. 2005) .................................................................

10

Statutes
Administrative Procedure Act, 5 U.S.C. 551 et seq..............................................

passim

Case 2:14-cv-00248-NDF Document 37 Filed 04/06/15 Page 6 of 31

5 U.S.C. 551(13) ...............................................................................................

11

5 U.S.C. 702 ......................................................................................................

11

5 U.S.C. 704 ......................................................................................................

11

5 U.S.C. 706(1) .................................................................................................

8, 11, 12, 14

Wild Free-Roaming Horses and Burros Act, Pub. L. No. 92195 (Dec. 15,
1971), 85 Stat. 649651 (1971) (codified at 16 U.S.C. 13311340) ....................

passim

Pub. L. No. 92-195 3(b) ....................................................................................

16 U.S.C. 1331 ..................................................................................................

2, 5

16 U.S.C. 1332(a) .............................................................................................

16 U.S.C. 1332(b) .............................................................................................

16 U.S.C. 1332(f) ..............................................................................................

5, 16

16 U.S.C. 1333(a) .............................................................................................

2, 13, 14

16 U.S.C. 1333(b)(1) ........................................................................................

4, 13, 14, 19

16 U.S.C. 1333(b)(2) ........................................................................................

passim

16 U.S.C. 1333(b)(2)(i)(iv) ............................................................................

16

16 U.S.C. 1333(f)(2) .........................................................................................

16

16 U.S.C. 1338 ..................................................................................................

16 U.S.C. 1338a ................................................................................................

Federal Land Policy and Management Act, Pub. L. No. 94579 (Oct. 21,
1976) (codified at 43 U.S.C. 17011782) .............................................................

3, 6

43 U.S.C. 1712 ..................................................................................................

43 U.S.C. 1732 ..................................................................................................

Public Rangelands Improvement Act of 1978, Pub. L. No. 95-514 (Oct. 25,
1978) (codified as corrected at 43 U.S.C. 1901(6)) ................................................

4, 19

Pub. L. No. 95-514 2(6) ...................................................................................

4, 19

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Case 2:14-cv-00248-NDF Document 37 Filed 04/06/15 Page 7 of 31

Rules
Fed. R. Civ. P. 12(b)(1)..............................................................................................

10

Fed. R. Civ. P. 12(b)(6)..............................................................................................

10

Fed. R. App. P. 29 ......................................................................................................

22

Fed. R. App. P. 29(c)(5) .............................................................................................

Fed. R. App. P. 32(a)(7)(C) .......................................................................................

22

Fed. R. App. P. 32(a)(7)(B)(iii) .................................................................................

10

Regulations
43 C.F.R. 4710.1 .....................................................................................................

43 C.F.R. 4710.31 .................................................................................................

Legislative History
124 CONG. REC. H622839 (daily ed. June 29, 1978) ...............................................

4, 5

124 CONG. REC. S5529 (daily ed. April 13, 1978) ....................................................

20

124 CONG. REC. S1822224 (daily ed. Oct. 11, 1978) ..............................................

19

H.R. REP. NO. 94-1163 (1976) ...................................................................................

H.R. REP. NO. 95-1122 (1978) ...................................................................................

5, 19

H. R. REP. NO. 95-1737 (1978) ..................................................................................

S. REP. NO. 92-242 (1971) .........................................................................................

Protection, Management and Control of Wild Free-Roaming Horses and

Burros: Hearings on S.457 Before the Subcomm. on Public Lands and
Reserved Water of the Comm. on Energy and Natural Resources, 98th Cong.
100 (1983) ..................................................................................................................

Wild Free-Roaming Horses and Burros: Hearings Before the Subcomm. on

Public Lands and Resources of the Comm. on Energy and Natural Resources,
95th Cong. 4 (1977) ...................................................................................................

vii

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Resource Management Plans

Grass Creek Resource Management Plan ..................................................................

7, 15

Green River Resource Management Plan ..................................................................

6, 15

Lander Resource Management Plan ..........................................................................

6, 7, 15

Rawlins Resource Management Plan.........................................................................

6, 15

Other
BLM Handbook, available at http://www.blm.gov/style/medialib/blm/
wo/Information_Resources_Management/policy/blm_handbook.Par.11148.Fil
e.dat/H-4700-1.pdf (last visited April 1, 2015)..........................................................

6, 15, 16

George Cameron Coggins, The Law of Public Rangeland Management III: A

Survey of Creeping Regulation at the Periphery, 1934-1982, 13 Envtl. L. 295
(1983) .........................................................................................................................

Kenneth P. Pitt, The Wild Free-Roaming Horses and Burros Act: A Western
Melodrama, 15 Envtl. L. 503 (1985) .........................................................................

U.S. Dept of Justice, Attorney Generals Manual on the Administrative

Procedure Act (1947) .................................................................................................

12

viii

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IDENTITY AND INTEREST OF AMICUS CURIAE1

WSGA is a nonprofit corporation organized under the laws of the State of Wyoming that
was founded in 1872 with the intent to advance and protect the interests of Wyomings livestock
producers. WSGA seeks to protect, promote, and assert the business, economic, social, and
educational interests of its members, including sheep producers and 1,000 beef cattle producers.
WSGA represents these interests by regularly engaging in legislative, administrative, and legal
advocacy, including advocacy regarding the management of wild horses in a manner consistent
with sound resource management. As part of its mission, WSGA promotes the role of the
Wyoming livestock industry in resource stewardship by informing and educating the public.
Many WSGA members hold grazing permits and leases to conduct livestock operations
on private and state lands, as well as public lands, such as those administered by the U.S. Bureau
of Land Management (BLM). Many of these federal grazing permits are for allotments used
by excess wild horses to the permittees detriment. Because WSGA members holding federal
grazing permits cannot willfully remove[] or attempt[] to remove a [wild horse] from the public
lands, without authority from the Secretary , 16 U.S.C. 1338, these WSGA members must
rely on the Secretary2 fulfilling her mandatory, non-discretionary duty to remove excess wild
horses as set forth in the Wild Free-Roaming Horses and Burros Act (WHA), 16 U.S.C.
13311340. Id. 1333(b)(2).
As an advocate and protector of its members, WSGA has a strong interest in this case.
Because removal of these excess wild horses will alleviate stress to the range and on other
1

Pursuant to Fed. R. App. P. 29(c)(5), the undersigned affirms that no counsel for a party
authored this brief in whole or in part, and no person or entity, other than WSGA, its members,
or its counsel, made a monetary contribution specifically for the preparation or submission of
this brief.
2
The BLM is the Secretarys delegate, but for simplicity, Secretary will be used throughout
this brief, unless the context requires otherwise.
1

Case 2:14-cv-00248-NDF Document 37 Filed 04/06/15 Page 10 of 31

uses, like livestock grazing, WSGA respectfully submits this amicus curiae brief in support of
Petitioner, the State of Wyoming.
STATEMENT OF THE CASE
I.

LEGAL BACKGROUND.
A.

The Wild Free-Roaming Horses And Burros Act.

In 1971, under the mistaken belief that wild free-roaming horses and burros were
disappearing, Congress passed the WHA To require the protection, management, and control of
wild free-roaming horses and burros on public lands. Pub. L. No. 92195 (Dec. 15, 1971), 85
Stat. 649651 (1971) (codified at 16 U.S.C. 13311340). The stated purpose of the WHA is
to protect wild free-roaming horses and burros on public lands from capture, branding,
harassment, or death .3 16 U.S.C. 1331. To accomplish this purpose, the WHA places all
wild horses on public lands administered by the BLM under the Secretarys jurisdiction. Id.
1332(a), 1333(a). Accordingly, the Secretary is authorized to protect wild horses as
components of the public lands. Id. In doing so, the Secretary shall manage wild horses in a
manner that is designed to achieve and maintain a thriving natural ecological balance on the
public lands. Id. 1333(a).

The wild horses and burros sought to be protected by the WHA are not wildlife. Instead,
they are feral, meaning that they are descended from escaped domesticated beasts. George
Cameron Coggins, The Law of Public Rangeland Management III: A Survey of Creeping
Regulation at the Periphery, 1934-1982, 13 Envtl. L. 295, 34748 (1983); Kenneth P. Pitt, The
Wild Free-Roaming Horses and Burros Act: A Western Melodrama, 15 Envtl. L. 503, 505
(1985) (noting that the horse disappeared from North America in prehistoric times and the wild
horses that exist today are descendants from those domesticated equids brought here by
Columbus and Cortez); see also 16 U.S.C. 1332(b) (inexplicitly declaring all unbranded and
unclaimed horses and burros on public lands to be wild horses and burros); Mountain States
Legal Found. v. Hodel, 799 F.2d 1423, 1433 (10th Cir. 1986) (Seth, J., dissenting) (The horses
cannot be biologically ... altered by an Act of Congress into wild animals). However, in
keeping with the popular, albeit incorrect, vernacular, the term wild horses will be used herein.
2

Case 2:14-cv-00248-NDF Document 37 Filed 04/06/15 Page 11 of 31

Despite the WHAs primary goal of protecting wild horses, Congress recognized the need
to control the wild horse population. S. REP. NO. 92-242 at 34 (1971) (The committee
recognizes that some control over the numbers of animals may be necessary in order to maintain
an ecological balance in an area.). This need for population control was echoed in Section 3 of
the WHA, although its implementation was originally left to the Secretarys unbridled discretion.
As originally passed, Section 3 provided, inter alia:
[W]here an area is found to be overpopulated, the Secretary may order old,
sick, or lame animals to be destroyed in the most humane manner possible, and he
may cause additional excess wild free-roaming horses and burros to be captured
and removed for private maintenance under humane conditions and care.
Pub. L. No. 92-195 3(b) (all emphasis added).
Just three years after the passage of the WHA, it was abundantly clear that wild horses
were not disappearing. See Protection, Management and Control of Wild Free-Roaming Horses
and Burros: Hearings on S.457 Before the Subcomm. on Public Lands and Reserved Water of
the Comm. on Energy and Natural Resources, 98th Cong. 100 (1983). In fact, the wild horse
population increased drasticallyfrom an estimated 17,000 in 1971 to approximately 57,000 just
three years later. Id.
In 1976, Congress passed the Federal Land Policy and Management Act (FLPMA).
Pub. L. No. 94579 (Oct. 21, 1976) (codified at 43 U.S.C. 17011782). FLPMA amended
the WHA to authorize the Secretary to use helicopters and motor vehicles to capture and
transport wild horses. 16 U.S.C. 1338a. This section was included because [t]he Secretaries
have reported that they have been unable to manage the numbers of animals on the range without
the use of aircraft and other mechanical equipment. The result is continuing deterioration of the
lands, wildlife and wild horses and burros dependent upon them, and other multiple use values.
H.R. REP. NO. 94-1163 at 14 (1976).
3

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However, the destruction caused by wild horses continued after the passage of FLPMA.
Indeed, it was clear that the WHA would need to be amended again in order to control the
exponentially increasing wild horse populations. See Wild Free-Roaming Horses and Burros:
Hearings Before the Subcomm. on Public Lands and Resources of the Comm. on Energy and
Natural Resources, 95th Cong. 4, 11 (1977); 124 CONG. REC. H622839, 6233 (daily ed. June
29, 1978) (statement of Rep. Roncalio) (Aircraft were permitted for use in wild horse roundups,
but have not solved the problem of overpopulation.). Congress tried to address these concerns
in the Public Rangelands Improvement Act of 1978 (PRIA):
[T]he [WHA] continues to be successful in its goal of protecting wild freeroaming horses and burros from capture, branding, harrassment [sic], and death,
but that certain amendments are necessary thereto [to] avoid excessive costs in the
administration of the Act, and to facilitate the humane adoption or disposal of
excess wild free-roaming horses and burros[,] which because they exceed the
carrying capacity of the range, pose a threat to their own habitat, fish, wildlife,
recreation, water and soil conservation, domestic livestock grazing, and other
rangeland values.
Pub. L. No. 95-514 2(6) (Oct. 25, 1978) (emphasis added) (codified as corrected at 43 U.S.C.
1901(6)). Accordingly, Congress amended Section 3 to require the Secretary to maintain an
inventory of wild horses on public lands:
The Secretary shall maintain a current inventory of [wild horses] on given areas
of the public lands. The purpose of such inventory shall be to: make
determinations as to whether and where an overpopulation exists and whether
action should be taken to remove excess animals; determine appropriate
management levels of [wild horses] on these areas of the public lands; and
determine whether appropriate management levels should be achieved by the
removal or destruction of excess animals, or other options (such as sterilization, or
natural controls on population levels).
16 U.S.C. 1333(b)(1). Congress also amended Section 3 to expressly change the Secretarys
duty to remove excess wild horses from discretionary to mandatory, that is from may to
shall:

Case 2:14-cv-00248-NDF Document 37 Filed 04/06/15 Page 13 of 31

Where the Secretary determines on the basis of all information currently

available to him, that an overpopulation exists on a given area of the public lands
and that action is necessary to remove excess animals, he shall immediately
remove excess animals from the range so as to achieve appropriate management
levels.
16 U.S.C. 1333(b)(2) (emphasis added); see H.R. REP. NO. 95-1122 at 22 (1978) (explaining
that the Secretary must remove excess wild horses if other population control methods fail). The
PRIA also amended the WHA to define excess animals as, inter alia, wild free-roaming
horses (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. 16 U.S.C. 1332(f).
Congresss actions in passing the PRIA and thereby significantly amending the WHA
evidenced a sea change in its attitude toward wild horses on public lands. In 1971, Congresss
primary goal was to protect the wild horses. 16 U.S.C. 1331. Seven years later, Congresss
primary goal was to control the number of wild horses so as to protect other resources on public
lands. 124 CONG. REC. H622839, 6233 (daily ed. June 29, 1978) (statement of Rep. Roncalio)
([The PRIA] amends the 1971 [WHA] to require positive action to curb identified
overpopulations of [wild horses] on the public lands.); H. R. REP. NO. 95-1737 at 15 (1978)
(The goal of wild horse and burro management, as with all range management programs, should
be to maintain a thriving ecological balance between wild horse and burro populations, wildlife,
livestock, and vegetation, and to protect the range from the deterioration associated with
overpopulation of wild horses and burros.); Am. Horse Prot. Assn v. Watt, 694 F.2d 1310, 1317
(D.C. Cir. 1982) ([T]he 1978 amendments made it clear that Congress expected prompt
administrative action to deal with wild horse overpopulations . Congress determined that
action is needed to prevent a successful program from exceeding its goals . (quoting H.R.
REP. NO. 95-1122 at 23 (1978)) (citation omitted). Thus, one of Congresss main purposes for

Case 2:14-cv-00248-NDF Document 37 Filed 04/06/15 Page 14 of 31

amending Section 3 was to identify and control overpopulations of wild horses, as well as to
mandate the removal of excess wild horses when such management efforts failed.
B.

The Relevant Resource Management Plans.

The Secretary develops land use plans, also known as resource management plans
(RMPs), under the direction of FLPMA. See 43 U.S.C. 1712, 1732. If public lands contain
wild horses, then RMPs establish herd management areas (HMAs)4 and appropriate
management levels (AMLs).5 See 43 C.F.R. 4710.1, 4710.31.
Wyoming has identified seven overpopulated HMAs in its Petition: Antelope Hills,
Crooks Mountain, Fifteenmile, Green Mountain, Little Colorado, Lost Creek, and Stewart Creek.
ECF No. 1-1 at 149.6 As demonstrated by Wyoming, the Secretary established AMLs in the
applicable RMPs for each of the seven, now undisputedly, overpopulated HMAs.7

HMAs are:
[E]stablished for the maintenance of wild horses and burro herds. In delineating
each [HMA], the authorized officer shall consider the appropriate management
level for the herd, the habitat requirements of the animals, the relationships with
other uses of the public land and adjacent private lands, and the constraints in
4710.4.
43 C.F.R. 4710.31 (2015).
5
AML is expressed as a population range with an upper and lower limit. BLM Handbook at
67, available at
http://www.blm.gov/style/medialib/blm/wo/Information_Resources_Management/policy/blm_ha
ndbook.Par.11148.File.dat/H-4700-1.pdf (last visited April 1, 2015). The AML upper limit is
the number of [wild horses] which results in a [thriving natural ecological balance] and avoids
deterioration of the range. Id.; In Defense of Animals v. U.S. Dept of Interior, 909 F. Supp. 2d
1178, 1185 (E.D. Cal. 2012), affd, 751 F.3d 1054 (9th Cir. 2014) (defining AML as the number
of animals within an HMA which achieves and maintains a thriving natural ecological
balance.).
6
References to the record are to this Court's docket entries indicated by the electronic case filing
number (ECF No.), and all citations are to ECF page numbers.
7
The Lander RMP establishes AMLs for the Antelope Hills, Crooks Mountain, and Green
Mountain HMAs. Lander RMP at 321. The Rawlins RMP establishes AMLs for the Lost Creek
and Stewart Creek HMAs. Rawlins RMP at A12-2. The Green River RMP establishes AML for
the Little Colorado HMA. Green River RMP at 23, 73. The Grass Creek RMP establishes AML
6

Case 2:14-cv-00248-NDF Document 37 Filed 04/06/15 Page 15 of 31

For example, the Lander RMP established AML for the Crooks Mountain HMA in 1993
and 1994 from a process that included five years of focused, intensive monitoring of wild horse
herd areas, use areas, and grazing allotments. Lander RMP at 317. After this exhaustive
process, the AML for the Crooks Mountain HMA was set at 6585, and has not changed. Id. at
70, 317. The Lander RMP was revised in June 2014. Id. at 1. During the revision process, the
Secretary evaluated the monitoring data8 to determine whether the AML would need to be
adjusted for the Crooks Mountain HMA.9 See id. at 317 (Monitoring and adjusting the [AML],
as necessary, would ensure a thriving, natural ecological balance is maintained.). Despite
knowing the Crooks Mountain HMA was overpopulated, the Secretary retained the same AML,
set at 6585, for the Crooks Mountain HMA. Id. at 70, 317, 321. RMPs for the six other HMAs
have gone through similar processes. See ECF No. 34 at 913.
II.

FACTUAL BACKGROUND.
On March 1, 2014, the BLM published data on wild horse populations in HMAs across

the nation (March 2014 Data). ECF No. 1-1, 2, 38, 49159. This data provided population
estimates based mostly on direct counts, i.e. actual observation of animals. Id. at 50. The March
2014 Data included wild horse population estimates for all sixteen HMAs in Wyoming. Id. at
149. Based on these population estimates, the Secretary determined that the seven HMAs at
issue in this case are overpopulated, i.e., contain wild horses above the established AMLs. Id.

for the Fifteenmile HMA. Grass Creek RMP at 21. See ECF No. 34 at 9 n.2 (listing hyperlinks
for the four RMPs).
8
The Secretary monitors the following data: precipitation data, rangeland trends, forage
utilization data, permitted use by livestock, wildlife actual use and forage requirements, and wild
horse population data, such as population counts, reproductive rates, age/sex structure,
observation sightings, and determining areas of highest horse use, or concentration areas. Lander
RMP at 317.
9
Interestingly, the Secretary knew in March of 2014 that the Crooks Mountain HMA contained
twice as many wild horses as AML. See ECF No. 1-1 at 149.
7

Case 2:14-cv-00248-NDF Document 37 Filed 04/06/15 Page 16 of 31

On August 21, 2014, Wyoming Governor Matthew H. Mead sent a letter to Secretary
Sally Jewell, and BLM Director Neil Kornze. Id. at 2. This letter provided undisputed facts
showing the harm Wyoming was incurring, and continues to incur, because of the Secretarys
failure to remove excess wild horses from the overpopulated HMAs. Id. at 46, 910, 1113, 37,
43. First, the sage-grouse and their habitat are adversely affected by overpopulated HMAs. Id.
at 45, 11, 12 (The [Wyoming Game & Fish Department] is concerned that the overpopulation
of wild horses within these HMAs will adversely affect lek habitat and local sage-grouse
populations.). Second, big game species and their habitat are also negatively impacted by
overpopulated HMAs. Id. at 5, 13 (Wild horses can impact big game at water sources by direct
displacement or causing avoidance when present. Wild horses can also impact big game by
directly competing for rangeland forage.). Third, overpopulated HMAs cause financial and
resource damage to State lands within the HMAs. Id. at 5; see id. at 9, 43. In light of the
demonstrated harm, Wyoming filed the instant Petition to compel the Secretary to perform her
mandatory, non-discretionary duty to remove excess wild horses from the seven HMAs.
SUMMARY OF ARGUMENT
The Administrative Procedure Act (APA), 5 U.S.C. 551 et seq., requires that
reviewing courts shall compel agency action unlawfully withheld or unreasonably delayed
. Id. 706(1). A claim for failure to act under 706(1) may proceed where a plaintiff
asserts that an agency failed to take a discrete agency action that it is required to take. Norton
v. S. Utah Wilderness Alliance, 542 U.S. 55, 64 (2004) (emphasis in original).
First, Wyoming has properly alleged the Secretary failed to take a discrete agency action.
Section 3(b)(2)s mandate to immediately remove excess wild horses from the range is a discrete

Case 2:14-cv-00248-NDF Document 37 Filed 04/06/15 Page 17 of 31

agency action. This mandate is a discrete agency action because it demands the immediate and
permanent removal of excess wild horses from a given, overpopulated area.
Second, Wyoming has properly alleged the Secretary failed to take an action she is
required to take. Section 3(b)(2) provides that removal of excess wild horses is required when an
overpopulation exists. AMLs establish the thresholds at which overpopulations will exist. These
overpopulations are confirmed by any information available to the Secretary. Here, the March
2014 Data provides that wild horse populations exceed the established AMLs for the seven
HMAs. This is undisputed. Therefore, the Secretary is required to take immediate action to
remove excess wild horses from the seven HMAs.
Additionally, Congress purposefully amended Section 3 to remove the discretion
previously afforded to the Secretary under the WHAs original language. Congress replaced that
discretionary language with non-discretionary language mandating the immediate and permanent
removal of excess wild horses from the range when management efforts failed to control the
populations. Congress wanted to ensure that the range would not be destroyed by increasing
wild horse populations. Therefore, Wyoming has pleaded a properly stated failure to act claim
and the Respondents and Intervenors motions to dismiss should be denied.
ARGUMENT
I.

STANDARD OF REVIEW.
In Olenhouse v. Commodity Credit Corp., 42 F.3d 1560 (10th Cir. 1994), the Tenth

Circuit outlined the principles of judicial review of final agency action under the [APA]. Kane
County Utah v. Salazar, 562 F.3d 1077, 1086 (10th Cir. 2009) (citing Olenhouse, 42 F.3d at
157374). Respondents have moved to dismiss the Petition under Fed. R. Civ. P. 12(b)(1)10 and
10

Respondents suggest that Wyomings Petition should be dismissed for lack of jurisdiction.
The Supreme Court has recognized that jurisdiction is a word of many, too many, meanings,
9

Case 2:14-cv-00248-NDF Document 37 Filed 04/06/15 Page 18 of 31

(6), ECF No. 29 at 1, while Intervenors have moved to dismiss the Petition under Fed. R. Civ. P.
12(b)(6). ECF No. 31 at 1.
It is axiomatic that dismissals for failure to state a claim are disfavored. Lone Star Indus.,
Inc. v. Horman Family Trust, 960 F.2d 917, 920 (10th Cir. 1992). When reviewing a Rule
12(b)(6) motion, a court must accept as true the petitioners well-pleaded factual allegations.
Christy Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 119192 (10th Cir. 2009). The
question is whether, if the allegations are true, it is plausible and not merely possible that the
[petitioner] is entitled to relief under the relevant law. Id. at 1192 (citing Robbins v. Okla., 519
F.3d 1242, 1247 (10th Cir. 2008)). A claim has facial plausibility when the [petitioner] pleads
factual content that allows the court to draw the reasonable inference that the [respondent] is
liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)). Importantly, at the motion to dismiss
stage, [t]he issue is not whether a [petitioner] will ultimately prevail[,] but whether the claimant
is entitled to offer evidence to support the claims. Scheuer v. Rhodes, 416 U.S. 232, 236
(1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982).
Steel Co. v. Citizens for a Better Envt, 523 U.S. 83, 90 (1998) (quotation omitted), which is used
far too loosely by federal courts to improvidently dismiss cases. Arbaugh v. Y&H Corp., 546
U.S. 500, 51011 (2006). To avoid these so-called drive-by jurisdictional rulings, Steel Co.,
523 U.S. at 91, the Court has instituted a clear-statement rule requiring Congress to state[ ]
[clearly] that a threshold limitation on a statutes scope shall count as jurisdictional.... Arbaugh,
546 U.S. at 515. When Congress does not rank a statutory limitation as jurisdictional, courts
should treat the restriction as nonjurisdictional in character. Id. To the extent Respondents rely
on Wyoming v. U.S. Dept of Interior, 360 F. Supp. 2d 1214 (D. Wyo. 2005), for the proposition
that this Court lacks jurisdiction, WSGA submits that case was a prohibited drive-by
jurisdictional ruling. Further, in Norton, the Supreme Court did not expressly reject the
plaintiffs broad programmatic claim for lack of subject-matter jurisdiction. Rather, the Court
merely ruled that challenges seeking broad programmatic relief, as sought in that case, are not
remediable under the APA. See Norton, 542 U.S. at 6165; see also Lexmark Intl, Inc. v. Static
Control Components, Inc., 134 S. Ct. 1377, 1386 (2014) (a federal courts obligation to hear
and decide cases within its jurisdiction is virtually unflagging.) (internal quotations omitted).
Therefore, this Court should review Respondents Motion to Dismiss through the lens of Rule
12(b)(6), not 12(b)(1).
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II.

WYOMING PROPERLY STATED A FAILURE TO ACT CLAIM.

Under the APA, a person is entitled to judicial review if suffering legal wrong because

of an agency action, or [is] adversely affected or aggrieved by agency action within the meaning
of the relevant statute . 5 U.S.C. 702. Where no other statute provides a private right of
action, the agency action complained of must be final agency action.11 Norton, 542 U.S. at
6162 (quoting 5 U.S.C. 704) (emphasis in original). Agency action includes the failure to
act. Id. 551(13). A failure to act is the omission of an action without formally rejecting a
requestfor example, the failure to promulgate a rule or take some decision by a statutory
deadline. Norton, 542 U.S. at 63.
Under the APA, a court has authority to compel agency action unlawfully withheld or
unreasonably delayed as a form of relief for failure to act claims. 5 U.S.C. 706(1). And
enforcement may be by a mandatory injunction. Atl. & Gulf Stevedores, Inc. v. Donovan, 274
F.2d 794, 802 (5th Cir. 1960). The duty to compel agency action unlawfully withheld or
unreasonably delayed provided by 706(1) is a restatement of existing judicial practice at the
time of the APAs passage under which courts issued [o]rders in the nature of a writ of
mandamus to compel an administrative agency to act, or to compel an agency or officer to
perform a ministerial or non-discretionary act. U.S. Dept of Justice, Attorney Generals
Manual on the Administrative Procedure Act, 108 (1947) (citations omitted); Norton, 542 U.S. at
11

The WHA does not provide a private right of action. See 16 U.S.C. 133140; Cloud
Found., Inc. v. Salazar, 999 F. Supp. 2d 117, 123 (D.D.C. 2013). Thus, Wyoming may bring its
claims before this Court under the APA. Intervenors make the specious argument that Wyoming
fails to state a claim upon which relief can be granted because there is no final agency action.
ECF No. 32 at 1013. However, WSGA submits that an agencys failure to act either constitutes
final agency action for purposes of the APA or is an exception to the final agency action
requirement. See ONRC Action v. Bureau of Land Mgmt., 150 F. 3d 1132, 1137 (9th Cir. 1998)
(an agencys failure to act has been referred to as an exception to the final agency action
requirement); Sierra Club v. Thomas, 828 F.2d 783, 79294 (D.C. Cir. 1987). WSGA also
supports Wyomings arguments that the Secretarys unreasonable delay is final agency action.
See ECF No. 34 at 2223.
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6364. Though mandamus-type relief is an extraordinary remedy, the Supreme Court held that a
claim under 706(1) may proceed where a plaintiff asserts that an agency failed to take a
discrete agency action that it is required to take. Norton, 542 U.S. at 64 (emphasis in original).
A.

Respondents Have Failed To Take A Discrete Agency Action That

They Are Required To Take By Law.
1.

The Secretarys mandatory duty to remove excess wild horses

is a discrete agency action.

The first limitation on bringing a failure to act claim under 706(1) is discreteness.
Norton, 542 U.S. at 63. To pass the discreteness test, the statute must mandate a specific agency
action to be taken. Id. at 66. Section 3(b)(2) of the WHA clearly passes this test.
Section 3 provides:
Where the Secretary determines on the basis of all information currently
available to him, that an overpopulation exists on a given area of the public lands
and that action is necessary to remove excess animals, he shall immediately
remove excess animals from the range so as to achieve appropriate management
levels.
16 U.S.C. 1333(b)(2) (emphasis added).
There is simply no question that Section 3(b)(2) imposes a mandatory duty upon the
Secretary. See id. This is because Congress employed the word shall when amending Section
3. Id.; Forest Guardians v. Babbitt, 174 F.3d 1178, 1187 (10th Cir. 1999) (The Supreme Court
and this circuit have made clear that when a statute uses the word shall, Congress has imposed
a mandatory duty upon the subject of the command.) (citations omitted).
Section 3(b)(2) also mandates a specific agency actionthe removal of excess wild
horses. This language clearly requires the Secretary to remove excess wild horses from the
public lands. See 16 U.S.C. 1333(b)(2). In fact, it provides no option other than removal of
excess wild horses, which has been interpreted to mean the permanent separation of horses

12

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from a given area. In Defense of Animals v. Salazar, 675 F. Supp. 2d 89, 97 (D.D.C. 2009)
(emphasis in original); see In Defense of Animals v. U.S. Dept of Interior, 751 F. 3d 1054, 1064
(9th Cir. 2014) (affirming the district courts interpretation that remove means the permanent
removal of wild horses). This is important because it demonstrates that the mandate to
permanently remove excess wild horses is non-discretionary. Section 3(b)(2) also imposes a
temporal standardimmediatelyfor when the Secretary must act to remove excess wild
horses. 16 U.S.C. 1333(b)(2).
Moreover, the mandate to remove excess wild horses is not akin to the broad statutory
mandates described in Norton. 542 U.S. at 6667 (compelling compliance with broad statutory
mandates would inject[] the judge into day-to-day agency management). The mandate to
remove excess wild horses is not discretionary; it obligates the Secretary to perform a discrete,
specific agency actionthe permanent removal of excess wild horses. 16 U.S.C. 1333(b)(2).
As such, an order compelling the Secretary to remove excess wild horses from a given area
would not entangle this Court in abstract policy disagreements or interfere with the Secretarys
lawful discretion. Norton, 542 U.S. at 66.
Respondents and Intervenors argue the duty to remove excess wild horses is not
mandatory, because the Secretary has discretion on how to manage wild horses under the WHA.
ECF No. 30 at 13, 1517; ECF No. 32 at 1517. The Secretarys mandatory, non-discretionary
duty to remove excess wild horses is not swallowed up by the purported broad statutory
mandates of Section 3(a) and (b)(1) of the WHA. See Norton, 542 U.S. at 67 (likening, in dicta,
a claim that the Secretary failed to manage wild free-roaming horses and burros in a manner
that is designed to achieve and maintain a thriving natural ecological balance . . . to a broad
statutory mandate that could not be compelled pursuant to 706(1) of the APA (quoting 16

13

Case 2:14-cv-00248-NDF Document 37 Filed 04/06/15 Page 22 of 31

U.S.C. 1333(a)); 16 U.S.C. 1333(b)(1) (outlining the purposes of mandating the Secretary to
maintain a current inventory). Rather, the Secretarys mandatory, non-discretionary duty to
remove excess wild horses is separate from the purported broad statutory mandates under
Sections 3(a) and (b)(1). Compare 16 U.S.C. 1333(a) and (b)(1) with id. 1333(b)(2). In
fact, Section 3(b)(2)s language and specificity distinguishes it from the purported broad
statutory mandates. See HCSC-Laundry v. United States, 450 U.S. 1, 6 (1981) (construing that
a specific statute controls over a general provision particularly when the two are
interrelated and closely positioned). Unlike the allegedly broad statutory mandates under
Section 3(a) and (b)(1), Section 3(b)(2) takes discretion away from the Secretary by requiring the
immediate and permanent removal of excess wild horsesthere is no wiggle room.12 Compare
id. 1333(b)(1) (allowing the Secretary to consider different methods of population control) with
id. 1333(b)(2) (mandating the permanent removal of excess wild horses).
The Secretarys duty under Section 3(b)(2) to remove excess wild horses in order to
achieve AML is mandatory and non-discretionary. It mandates that the Secretary perform a
specific action. Thus, Wyoming has stated a plausible claim that the Secretarys mandatory,
non-discretionary duty to removal excess wild horses is a discrete agency action.
2.

The Secretary is required to remove excess wild horses when

the evidence demonstrates that an overpopulation exists.

The second limitation on bringing a failure to act claim under 706(1) is that the agency
action must be one that the agency is required to take. Norton, 542 U.S. at 63. This means a
discrete agency action must be demanded by law. Id. at 65. Section 3(b)(2) provides that the
discrete, mandatory duty to remove excess wild horses is triggered [w]hen the Secretary
12

As previously demonstrated, Congress purposefully amended Section 3 to replace the

discretionary removal language (may) with a mandatory, non-discretionary duty requiring the
removal of excess wild horses from the range (shall), when other management efforts failed.
14

Case 2:14-cv-00248-NDF Document 37 Filed 04/06/15 Page 23 of 31

determines on the basis of all information currently available to him, that [1] an
overpopulation exists on a given area of the public lands and [2] that action is necessary to
remove excess animals[.] 16 U.S.C. 1333(b)(2). Agency action is required when evidence
provides that the established AMLs are exceeded.
An AML establishes when an overpopulation will exist on a given HMA. AMLs are
designed to ensure a thriving natural ecological balance consistent with multiple use objectives
for the HMA.13 In Defense of Animals, 909 F. Supp.2d at 1192; see Lander RMP at 19, 70,
317; Rawlins RMP at 2-51, A12-1; Green River RMP at 23; Grass Creek RMP at 2122. For
this reason, an AML represents a population range within which [wild horses] can be managed
for the long term. BLM Handbook at 17. AMLs usually have a lower limit and an upper limit.
Id. The upper limit shall be established as the maximum number of [wild horses] which results
in a [thriving natural ecological balance] and avoids a deterioration of the range. Id. Because
an AMLs upper limit has been set as the maximum number of wild horses an HMA can support
while maintaining a thriving natural ecological balance, the AML is a vehicle used to move
towards a [thriving natural ecological balance], and a trigger by which [] the BLM is alerted to
address population imbalance. In Defense of Animals, 751 F.3d at 106364 (quotation omitted)
(emphasis added).
The WHA also equates excess [wild horses] with AML levels. In Defense of Animals,
909 F. Supp. 2d at 119192 (quoting 16 U.S.C. 1333(b)(2)). Excess animals are defined as,
inter alia, wild horses which must be removed from an area in order to preserve and maintain a
13

In fact, the BLM Handbook supports this interpretation:

When establishing AML, the analysis shall include an in-depth evaluation of
intensive monitoring data or land health assessment. Intensive monitoring data
shall include studies of grazing utilization, range ecological condition and trend,
actual use, and climate (weather) data. Population inventory, use patterns and
animals distribution should also be considered.
BLM Handbook at 18.
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Case 2:14-cv-00248-NDF Document 37 Filed 04/06/15 Page 24 of 31

thriving natural ecological balance and multiple-use relationship in that area. 16 U.S.C.
1333(f)(2). An AML is designed to ensure those same principlesthriving natural ecological
balance and multiple-use objectives. In Defense of Animals, 909 F. Supp. 2d at 1192. Simply
put, any wild horses within an HMA that exceed AML are excess, which the Secretary must
remove. Thus, an HMA is overpopulated, within the meaning of Section 3(b)(2), when wild
horses exceed AML levels.
A current inventory, like the March 2014 Data, or any information available to the
Secretary, 16 U.S.C. 1333(b)(2)(i)(iv), demonstrating that wild horse populations exceed
AML, establish that action is necessary to remove excess [wild horses.] Id. 1333(b)(2).
AMLs set the maximum number of wild horses that the range can tolerate without deteriorating
or affecting other multiple uses. See BLM Handbook at 67; In Defense of Animals, 909 F. Supp.
2d at 1192. Thus, when AML is exceeded, removal is imperative in order to preserve and
maintain the thriving natural ecological balance and multiple-use relationship in that area. 16
U.S.C. 1332(f). In short, action is required when evidence, like the March 2014 Data,
demonstrates that wild horses exceed the established AML in a given HMA.
When an overpopulation exists, as confirmed by evidence available to the agency, the
Secretarys discrete, mandatory duty to remove excess [wild horses] from the range so as to
achieve [AMLs], id. 1333(b)(2), becomes an agency action the Secretary is required to
take. Norton, 542 U.S. at 64 (emphasis in original); see In Defense of Animals, 751 F.3d at
1062 (the BLM is required to remove wild horses and burros from a given area of the public
lands when an overpopulation exists. (emphasis in original)). Here, it is undisputed that
overpopulations exist in seven HMAs. ECF No. 1-1 at 149 (March 2014 Data demonstrating
that wild horse populations in seven HMAs exceed established AMLs). Moreover, removal of

16

Case 2:14-cv-00248-NDF Document 37 Filed 04/06/15 Page 25 of 31

excess wild horses is essential because all other management efforts, if any, have miserably
failed, as demonstrated by the numbers of excess wild horses in the seven HMAs. Id. Plainly,
the failure of other management efforts to control population efforts trigger the mandatory duty
to remove excess wild horsesa discrete, required agency action.
Respondents and Intervenors argue that the Secretary is not required to remove excess
wild horses from the seven overpopulated HMAs, because no determinations regarding
overpopulation and necessity have occurred.14 ECF No. 30 at 1317; ECF No. 32 at 1314. As
demonstrated above, the clear statutory language provides that these determinations have
occurred. This is undisputed, because the March 2014 Data provides that wild horse populations
exceed the established AMLs for the seven HMAs.
Respondents also argue that any determination that an overpopulation exists and action is
necessary requires more than just a numerical calculation[,] but instead requires the Secretary
to evaluate whether removal is required to preserve and maintain a thriving and natural
ecological balance and multi-use relationship in a particular area.15 ECF No. 30 at 5. However,

14

Respondents and Intervenors rely on Colorado Wild Horse and Burro Coalition v. Salazar,
639 F. Supp. 2d 87 (D.D.C. 2009), for the proposition that the Secretary must make independent
determinations of overpopulation and necessity before excess wild horses can be removed. ECF
No. 30 at 1415; ECF No. 32 at 6. That case is entirely distinguishable from the case at hand. In
Colorado Wild Horse, the issue before the district court was whether BLM may remove an
entire herd of [wild horses] that BLM concededly [had] not determined to be excess animals
within the meaning of the [WHA]. 639 F. Supp. 2d at 95 (emphasis added). The district court
held that the Secretarys authority to manage horses does not allow it to remove non-excess wild
horses without making an excess determination. Id. at 9596. In the case at bar, Wyoming is not
claiming that Respondents failed to remove all wild horses, excess or not, from the grossly
overpopulated HMAs. See ECF No. 1 at 3. Rather, Wyoming claims only that Respondents
failed to remove those excess wild horses exceeding the established AMLs. Id.; ECF No. 34 at
2.
15
Respondents also bemoan that their failure to perform their mandatory, non-discretionary duty
to remove excess wild horses is due to a lack of funding. ECF No. 30 at 8. The alleged lack of
funding is not a valid excuse. See Roaring Springs Associates v. Andrus, 471 F. Supp. 522, 526
(D. Or. 1978) (holding plaintiffs claim was not barred because defendants wished to spend their
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Case 2:14-cv-00248-NDF Document 37 Filed 04/06/15 Page 26 of 31

this argument renders the established AMLs meaningless. As demonstrated above, the
established AMLs were designed to ensure a thriving natural ecological balance consistent with
multiple use objectives . In Defense of Animals, 909 F. Supp. 2d at 1192. Respondents
argument that another evaluation is required is duplicitous.
Moreover, this argument was recently rejected by the Ninth Circuit. In In Defense of
Animals, the district court ruled that [a]lthough Plaintiffs contend that population levels under
the [WHA] should be determined solely with reference to a thriving natural ecological balance
, that argument appears misplaced since the statute specifically equates excess animals with
AML levels. 909 F. Supp. 2d at 119192 (quoting 16 U.S.C. 1333(b)(2)). Thus, the AML
established that an excess population exists. Id. at 1192. On appeal the Ninth Circuit
reviewed the Plaintiffs claim that, to find there were excess animals, the BLM was required to
determine that there was not a thriving natural ecological balance on the HMA due to the
presence of wild horses and burros at the time of the gather. In Defense of Animals, 751 F.3d at
106364 (emphasis added). The Ninth Circuit interpreted 16 U.S.C. 1333(b)(2) to mean the
BLM must achieve a thriving natural ecological balance by maintaining the relevant AMLs.
Id. at 1063 (quoting 16 U.S.C. 1333(b)(2)). Thus constrained, the Ninth Circuit affirmed the
district courts holding by stating: the BLM correctly relied on the AMLs to decide that there
were excess wild horses and that Plaintiffs assertion that a thriving natural ecological
balance was being maintained . . . before the gather was irrelevant. Id. at 1064.
In conclusion, Section 3(b)(2) is clear: When an overpopulation exists, based on
established AMLs and evidence, like the March 2014 Data, action is required. That required
funds on items other than to remedy the plaintiffs claim); Larson v. Lujan, 976 F. Supp. 1406,
1410 (D. Utah 1992) (that Congress with[he]ld the necessary funding did not eliminate the
Secretarys congressionally-imposed duty to process mineral patent applications in a timely
fashion).
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action is the immediate removal of excess wild horses from the overpopulated HMAs.
Therefore, Wyoming has properly stated a failure to act claim. Because removal of excess wild
horses is a required agency action, the APA compels the Secretary to immediately remove excess
wild horses from the seven HMAs.
B.

Congress Intended For The Mandatory Duty To Remove Excess Wild

Horses To Be A Discrete, Required Agency Action.

As demonstrated above, Congress passed the 1978 amendments with the intent to control
wild horse populations that were destroying the range. See Pub. L. No. 95-514 2(6); 124
CONG. REC. S1822224, 18224 (daily ed. Oct. 11, 1978) (statement of Sen. Cannon) (I am
happy to see they have taken what I believe will be action to require management processes to
take over and be sure to bring under control the rampant range destruction that is going on with
excess wild horses as a result of previous legislation.). Congress recognized that lack of a
current inventory of wild horses made it difficult to determine if, and where, wild horse
overpopulations existed. See H.R. REP. NO. 95-1122 at 21 (1978). As a result, Congress
mandated the Secretary to maintain a current inventory of wild horses in order to:
[M]ake determinations as to whether and where an overpopulation exists and
whether action should be taken to remove excess animals; determine [AMLs] of
[wild horses] on these areas of the public lands; and determine whether [AMLs]
should be achieved by the removal or destruction of excess animals, or other
options (such as sterilization, or natural controls on population levels).
16 U.S.C. 1333(b)(1). Congress provided the Secretary with some discretion in determining
AMLs and the methods used to maintain AMLs. See e.g., H.R. REP. NO. 95-1122 at 22 (1978)
(Where an overpopulation is determined to exist, the Secretar[y] must decide how excess
animals will be controlled. In this regard, the bill mandates that consideration be given to
options to use sterilization or to allow natural controls (such as disease and parasites) to achieve
[AMLs].); 124 CONG. REC. S5529, 5529 (daily ed. April 13, 1978) (statement of Sen. Cannon)
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Case 2:14-cv-00248-NDF Document 37 Filed 04/06/15 Page 28 of 31

(This bill attempts to establish factors which should be generally applied to determine an
acceptable [population] level.).
However, Congress understood that the Secretarys chosen methods to control wild horse
populations could fail and a more permanent, non-discretionary method would be necessary. See
e.g., H.R. REP. NO. 95-1122 at 22 (1978) (If the Secretaries find that such methods will not
work, they are then directed to remove excess animals from the range until appropriate
population levels are achieved.) (emphasis added); 124 CONG. REC. S1822224, 18222 (daily
ed. Oct. 11, 1978) (statement of Sen. Church) (stating the amendments mandate the removal of
excess wild horses so as to maintain an ecological balance of the range and prevent its
destruction by overpopulations of these animals). It is clear from the legislative history of the
WHA that Congress intended the mandatory, non-discretionary duty to remove excess wild
horses to be a failsafe protection against overpopulation when other control methods failed. The
Secretary has no other option. Thus, Respondents argument in favor of unbridled Secretarial
discretion on when the mandatory duty to remove excess wild horses is triggered conflicts with
the legislative history of Section 3, as amended.
CONCLUSION
For the foregoing reasons, this Court should deny Respondents and Intervenors motions
to dismiss.
DATED this 2nd day of April 2015.

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Respectfully submitted,
/s/ William Perry Pendley
William Perry Pendley, Esq.
MOUNTAIN STATES LEGAL FOUNDATION
2596 South Lewis Way
Lakewood, Colorado 80227
Phone: (303) 292-2021
Fax: (303) 292-1980
wppendley@mountainstateslegal.com
Attorney for Wyoming Stock Growers Association

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Case 2:14-cv-00248-NDF Document 37 Filed 04/06/15 Page 30 of 31

CERTIFICATE OF COMPLIANCE
As required by Fed. R. App. P. 29 and 32(a)(7)(C), I certify that this brief is
proportionally spaced and contains 6,984 words, excluding the parts of the brief exempted by
Fed. R. App. P. 32(a)(7)(B)(iii). I relied on Microsoft Word to obtain the word count. I certify
that the information on this page is true and correct to the best of my knowledge and belief
formed after a reasonable inquiry.

/s/ William Perry Pendley

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Case 2:14-cv-00248-NDF Document 37 Filed 04/06/15 Page 31 of 31

CERTIFICATE OF SERVICE
I hereby certify that on the 2nd day of April 2015, the foregoing document was filed
using the CM/ECF system and that all parties of record were served through that system.

/s/ William Perry Pendley

23