Filed Reply Brief PDF

Appellate Case: 15-8033
Document: 01019579271
Date Filed: 03/01/2016
Page: 1
No. 15-8033
ORAL ARGUMENT REQUESTED
______________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
______________________
AMERICAN WILD HORSE PRESERVATION CAMPAIGN, et al.,
Petitioners-Appellants,
v.
SALLY JEWELL, et al.,
Respondents-Appellees,
and
ROCK SPRINGS GRAZING ASSOCIATION and STATE OF WYOMING,
Intervenor-Appellees.
______________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING IN CASE 2:14-cv-00152
(HONORABLE NANCY D. FREUDENTHAL)
______________________
APPELLANTS REPLY BRIEF
______________________
Katherine A. Meyer
Meyer Glitzenstein & Eubanks LLP
4115 Wisconsin Avenue NW
Suite 210
Washington, DC 20016
(202) 588-5206
kmeyer@meyerglitz.com
William S. Eubanks II
245 Cajetan Street
Fort Collins, CO 80524
(970) 703-6060
(202) 588-5049 (fax)
beubanks@meyerglitz.com
Document: 01019579271
Page: 2
CORPORATE DISCLOSURE STATEMENT

Pursuant to Fed. R. App. P. 26.1, Appellants American Wild Horse
Preservation Campaign, The Cloud Foundation, Return To Freedom, Carol
Walker, and Kimerlee Curyl hereby state that they are either nongovernmental
public interest organizations or individuals. None of them issues stock of any kind,
nor has parent or subsidiary corporations. Pursuant to Fed. R. App. P. 25(a)(5) and
Tenth Circuit Rule 25.5, the undersigned also certifies that all required privacy
redactions have been made.
Document: 01019579271
Page: 3
TABLE OF CONTENTS
INTRODUCTION .....................................................................................................1
I. BLMS UNPRECEDENTED ACTION OF PERMANENTLY REMOVING
WILD HORSES FROM PUBLIC LANDS PURSUANT TO ITS LIMITED
PRIVATE LAND REMOVAL AUTHORITY IN SECTION 4 FAILS
UNDER BOTH STEPS OF THE CHEVRON FRAMEWORK. .....................5
A. BLM Cannot Escape The Clear Application Of Chevron Step 1 To The
Plain Language Of The Wild Horse Act. .....................................................7
B. If The Court Reaches Chevron Step 2, BLMs Interpretation Is Not A
Permissible Construction Of The Wild Horse Act. .....................................21
II. BLMS SUBSTANTIAL REDUCTION OF THESE WILD HORSE
POPULATIONS FAR BELOW AML ON THESE PUBLIC LANDS
FLOUTS THE WILD HORSE ACT, FLPMA, AND THE BINDING
RMPS..............................................................................................................29
III.
PETITIONERS CLAIMS ARE JUSTICIABLE .......................................32
A. This Case Is Not Moot Because Meaningful Relief Remains Available

To Remedy Petitioners Ongoing Injuries Caused By BLMs Actions. .....34
B. Even If Relief Were Not Available, This Case Is Not Moot. .....................39
CONCLUSION ........................................................................................................42
CERTIFICATE OF COMPLIANCE ...................................................................... 44
CERTIFICATE OF SERVICE ............................................................................... 44
CERTIFICATE OF PRIVACY REDACTION ....................................................... 45
CERTIFICATE OF VIRUS SCAN ......................................................................... 45
ii
Document: 01019579271
Page: 4
TABLE OF AUTHORITIES
Cases
Airport Neighbors Alliance, Inc. v. United States,
90 F.3d 426 (10th Cir. 1996) ...............................................................................36
Am. Petr. Inst. v. EPA,
52 F.3d 1113 (D.C. Cir. 1995) .............................................................................18
Bar MK Ranches v. Yuetter,
994 F.2d 735 (10th Cir. 1993) .............................................................................41
Buchheit v. Green,
705 F.3d 1157 (10th Cir. 2012) .................................................................... 40, 41
Chafin v. Chafin,
133 S. Ct. 1017 (2013) .........................................................................................34
Day v. Bond,
500 F.3d 1127 (10th Cir. 2007) ...........................................................................34
Elwell v. Okla. ex rel. Bd. Of Regents of Univ. of
Okla., 693 F.3d 1303 (10th Cir. 2012) .................................................................24
Erlenbaugh v. United States,
409 U.S. 239 (1972) .............................................................................................17
Ethyl Corp. v. EPA,
51 F.3d 1053 (D.C. Cir. 1995) .............................................................................18
Fallini v. Hodel,
783 F.2d 1343 (9th Cir. 1986) ...................................................................... 13, 14
Friends of the Earth v. EPA,
446 F.3d 140 (D.C. Cir. 2006) ...................................................................... 20, 28
Friends of the Earth v. Laidlaw Envtl. Servs., Inc.,
528 U.S. 167 (2000) ................................................................................ 34, 39, 40
iii
Document: 01019579271
Page: 5
Herriman v. Bell,
590 F.3d 1176 (10th Cir. 2010) .................................................................... 41, 42
Hill v. Kemp,
478 F.3d 1236 (10th Cir. 2007) ...........................................................................14
Hydro Res., Inc. v. EPA,
608 F.3d 1131 (10th Cir. 2010) ...........................................................................22
In Defense of Animals v. U.S. Dept. of the Interior,
808 F. Supp. 2d 1254 (E.D. Cal. 2011) ........................................................ 35, 38
Kelley v. City of Albuquerque,
542 F.3d 802 (10th Cir. 2008) .............................................................................16
Local No. 93, Intl Assn of Firefighters v. Cleveland,
478 U.S. 501 (1986) .............................................................................................27
Massachusetts v. EPA,
549 U.S. 497 (2007) ...................................................................................... 18, 19
Michigan v. EPA,
135 S. Ct. 2699 (2015) .........................................................................................27
Mission Group of Kan. v. Riley,
146 F.3d 775 (10th Cir. 1998) .............................................................................21
Morton v. Mancari,
417 U.S. 535 (1974) .............................................................................................28
Natl Parks Conservation Assn v. FAA,
998 F.2d 1523 (10th Cir. 1993) ...........................................................................36
Perf. Coal Co. v. Fed. Mine Safety & Health Rev. Commn,
642 F.3d 234 (D.C. Cir. 2011) .............................................................................16
Roaring Springs Assocs. v. Andrus,
471 F. Supp. 522 (D. Or. 1978) .................................................................... 14, 24
United States v. Games-Perez,
695 F.3d 1104 (10th Cir. 2012) ...........................................................................13
iv
Document: 01019579271
Page: 6
United States v. Gonzales,

520 U.S. 1 (1997) .................................................................................................16
United States v. Power Engg Co.,
303 F.3d 1232 (10th Cir. 2002) ...........................................................................28
United States v. Price,
361 U.S. 304 (1960) .............................................................................................20
Utah Envtl. Cong. v. Russell,
518 F.3d 817 (10th Cir. 2008) .............................................................................36
Walters v. Metro. Educ. Enters., Inc.,
519 U.S. 202 (1997) ...............................................................................................9
Watt v. Alaska,
451 U.S. 259 (1981) .............................................................................................28
Whitman v. Am. Trucking Assns.,
Inc., 531 U.S. 457 (2001).............................................................................. 17, 29
Federal Statutes
5 U.S.C. 706 ................................................................................................... 32 ,41
16 U.S.C. 1331 ........................................................................................................6
16 U.S.C. 1332 ....................................................................................... 1, 8, 15, 19
16 U.S.C. 1333 ............................................... 6, 7, 8, 10, 11, 15, 19, 21, 22, 23, 26
16 U.S.C. 1334 ........................................................................... 3, 8, 11, 12, 16, 27
43 U.S.C. 1701-1787 ............................................................................................1
Document: 01019579271
GLOSSARY
AML
Appropriate Management Level
BLM
Bureau of Land Management
FLPMA
Federal Land Policy and Management Act
HMA
Herd Management Area
NEPA
National Environmental Policy Act
RMP
Resource Management Plan
RSGA
Rock Springs Grazing Association
vi
Page: 7
Document: 01019579271
Page: 8
INTRODUCTION
This appealwhich has important implications for national wild horse
managementasks the fundamental question of whether the federal government
can take actions on public lands that bypass the federal laws that expressly dictate
how those public lands must be managed. In their opening brief, Petitioners
American Wild Horse Preservation Campaign, et al., explained that the Bureau of
Land Management (BLM) is violating the Wild Free-Roaming Horses and
Burros Act (Wild Horse Act or Act), 16 U.S.C. 1331-1340, by adopting an
unprecedented counter-textual statutory interpretation under which BLM
permanently removes federally protected wild horses from public lands pursuant to
Section 4 of the Act, despite the fact that Congress plainly limited BLMs authority
under that provision to removing horses only from privately owned land. Id.
1334 (emphasis added). In the process, BLM has also willfully disregarded the
specific legislative dictates that do expressly apply to these public landsi.e., the
obligations Congress imposed on BLM in Section 3 of the Act that apply before
any wild horse may be removed from any public lands administered by BLM in the
Checkerboard or elsewhere. Id. 1333(b)(2), 1332(e).
Petitioners also explained that BLMs actions violated the Wild Horse Act,
the Federal Land Policy and Management Act (FLPMA), 43 U.S.C. 17011787, and BLMs own binding Resource Management Plans (RMPs) developed
Document: 01019579271
Page: 9
pursuant to FLPMA, by concededly reducing the wild horse populations that must
be managed on the public lands of these herd management areas (HMAs)the
vast majority of which occur outside the Checkerboardfar below the binding
appropriate management levels (AMLs) that apply to these public lands.
In response, rather than seriously grapple with Petitioners straightforward
legal arguments concerning the plain language of the Wild Horse Act that governs
the disposition of this appeal under Chevron Step 1, Respondents have instead
seriously mischaracterized Petitioners positions in order to create and knock down
straw men that have nothing to do with Petitioners arguments.
For example, contrary to Respondents insistence, Petitioners have never
suggested that BLM should carry out its responsibilities in managing wild horses
in the combined private and public lands of the Checkerboard in such a way that
would not provide private landowners in the checkerboard with the relief to which
they are statutorily entitled. Brief of Respondent-Intervenor State of Wyoming
(Wyo. Br.) at 16-18. Rather, Petitioners have long argued that, while the Rock
Springs Grazing Association (RSGA) certainly has a statutory right under
Section 4 to request that BLM arrange for the removal from RSGAs private lands
of any wild horses that have stray[ed] from public lands onto [RSGAs] privately
owned land, 16 U.S.C. 1334 (emphasis added), BLM may address such a
2
Document: 01019579271
Page: 10
request either by invoking Section 4 to remove all wild horses found on RSGAs
private lands, or by opting to invoke both Sections 3 and 4 in a single combined
decision-making process aimed at removing all horses from the private
Checkerboard lands and all excess horses found on the public Checkerboard
lands.
As explained in our opening brief, the latter option would require BLM to
adhere to the applicable AMLs and other mandatory obligations imposed by
Congress with respect to the removal of horses from the public lands of these
HMAs. This could be accomplished either by targeting all such excess horses
for permanent removal, or, given the makeup of the Checkerboard, by maintaining
the minimum wild horse population within AML entirely outside of the
Checkerboard on the vast blocks of contiguous BLM-administered public lands.
See Pet.App.238 (map depicting these HMAs). Either of these alternative actions
would fully satisfy RSGAs Section 4 rights by arranging for the removal of every
single wild horse from RSGAs private Checkerboard lands (i.e., the only right
Congress created for a private landowner under Section 4), and, in the process,
would actually harmonize Sections 3 and 4 rather than eviscerate the plain intent of
Section 3, which BLM seeks to do here. However, while BLM had various
management options available that would have been consistent with Congress
3
Document: 01019579271
Page: 11
express intent in the Wild Horse Act, the action BLM actually selectedi.e.,
invoking Section 4s limited authorization of removal of wild horses from private
lands for the purpose of removing many wild horses from public landswas
clearly foreclosed by Congress.
Accordingly, as described below, BLMs interpretation and application of
the Wild Horse Act fails at both Chevron Step 1 and Step 2. By invoking Section
4 to remove wild horses from public lands, and ignoring Section 3 of the Act
which governs the removal of horses from the public landsBLM flouted the
statutes plain terms and overstepped the explicit authority Congress conferred on
it under the Act, requiring reversal under Chevron Step 1. Similarly, because BLM
failed to harmonize Sections 3 and 4 of the Act, and instead adopted an
interpretation of the statute that violates several major canons of statutory
construction, BLMs actions also fail under Chevron Step 2. For these reasons, the
ruling below must be reversed.
I.
Document: 01019579271
Page: 12
BLMS UNPRECEDENTED ACTION OF PERMANENTLY

REMOVING WILD HORSES FROM PUBLIC LANDS PURSUANT
TO ITS LIMITED PRIVATE LAND REMOVAL AUTHORITY IN
SECTION 4 FAILS UNDER BOTH STEPS OF THE CHEVRON
FRAMEWORK.
Petitioners opening brief explained that Chevron Step 1 governs the Courts
Wild Horse Act analysis because Congress clearly delineated BLMs authority
with respect to all wild horses found on public lands (Section 3) and to those
horses that have stray[ed] from public lands onto privately owned land (Section
4), particularly where Congress set forth no exception in either section related to
BLMs management of the Wyoming Checkerboard. Because the district court
entirely failed to consider the Acts plain language, instead skipping Chevron Step
1 and moving immediately to the permissibility of BLMs action under Chevron
Step 2, reversal is necessary here. See Opening Brief of Petitioners (Pet. Br.) at
37-49. Alternatively, should the Court deem the statute ambiguous despite
Congress plain intent, Petitioners explained why BLMs interpretation could not
be sustained under Chevron Step 2 because it violates several canons of statutory
construction, contravenes the express purposes of the Act, runs afoul of BLMs
own past interpretations and guiding policies, and is not deserving of deference
because agency counsels post hoc rationalizations do not satisfy the requirements
for judicial deference. Id. at 49-60.
5
Document: 01019579271
Page: 13
In response, Respondents have echoed the district courts error, skipping

over the Acts plain language to instead focus almost entirely on the purported
reasonableness of BLMs action, despite this being the first time in agency
history that BLM has invoked its Section 4 authoritywhich governs actions on
private landsto permanently remove horses from public lands. See Corrected
Brief of Federal Respondents (Fed. Br.) at 22 (framing the issue in this appeal as
whether BLMs decision . . . is reasonable); id. at 25 (stating that treat[ing] the
public lands of the checkerboard as private lands for the purposes of wild horse
removal is reasonable here). However, in arguing about the ostensible
reasonableness of BLMs action, Respondents have wholly ignored the
mandatory requirements Congress imposed in Section 3, which BLM must satisfy
before removing a single horse from public lands, and which are absolutely
necessary to protect and manage wild free-roaming horses and burros as
components of the public lands. 16 U.S.C. 1333(a); see also id. 1331
(declaring that wild free-roaming horses shall be protected and considered in
the area where presently found, as an integral part of the natural system of the
public lands). Moreover, as demonstrated in our opening brief and as further
discussed below, in light of the overarching purposes of the Act, there is nothing
reasonable about the agencys approach here.
6
A.
Document: 01019579271
Page: 14
BLM Cannot Escape The Clear Application Of Chevron Step 1 To

The Plain Language Of The Wild Horse Act.
In light of Respondents meager responses to Petitioners extensive Chevron

Step 1 arguments, this Court should hold that BLM overstepped its plainly
prescribed statutory authority in Section 4 of the Wild Horse Act by taking the
unprecedented action of permanently removing federally protected wild horses
from public lands without ensuring that those horses were excess animals within
the meaning of the Act and without ensuring that BLMs action would maintain the
AML on the public lands of these HMAs (even if entirely outside of the
Checkerboard), consistent with Congress mandates in Section 3 of the Act. See
16 U.S.C. 1333-1334. Although the Court can reach this conclusion without any
additional briefing on this issue in light of the brevity of Respondents Chevron
Step 1 defenses, Petitioners nevertheless provide the following arguments further
reinforcing that BLMs action cannot survive Chevron Step 1 scrutiny.
Section 3 of the Wild Horse Act provides that BLM may only remove a
federally protected wild horse from public lands after BLM determines both that:
(1) an overpopulation [of wild horses] exists on a given area of the public lands,
and (2) action is necessary to remove excess animals. 16 U.S.C. 1333(b)(2)
(emphases added). Only after BLM has made both determinations is BLM
authorized to immediately remove excess animals from the range so as to achieve
7
Document: 01019579271
Page: 15
appropriate management levels. Id. (emphasis added). Congress specifically

defined public lands as used in Section 3 and elsewhere in the Act to mean any
lands administered by the Secretary of the Interior through BLM. Id. 1332(e)
(emphasis added). Thus, plainly, Congress intended to subject all BLMadministered public lands to the legal safeguards of Section 3i.e., BLM may not
remove any wild horses from any public lands unless BLM has first formally
determined that such horses are excess animals within the meaning of the Act,
see id. 1332(f), and BLM has ensured that its actionat least with respect to the
public lands involvedwill achieve the applicable AML. See id. 1333(b)(2).
In Section 4 of the Act, Congress specifically prohibited private landowners
from harming wild horses that have come onto their property. Id. 1334 (directing
that [i]n no event shall such wild free-roaming horses and burros be destroyed
except by the agents of BLM). However, it did provide that [i]f wild freeroaming horses or burros stray from public lands onto privately owned land, the
owners of such land may inform the nearest Federal marshall or agent of the
Secretary, who shall arrange to have the animals removed from that land. 16
U.S.C. 1334. However, nothing in this provision authorizes BLM to
permanently remove wild horses from any public landseven if that horse has
previously strayed onto private land or may in the future potentially stray onto
8
Document: 01019579271
Page: 16
private land. Nor does this provision excuse BLM from satisfying the legislative
prerequisites to wild horse removal specified in Section 3 when public lands are
involved, even if separate private lands may also be involved. Id. Indeed, because
Congress clarified that a private landowner may request removal of horses only
when they have strayed from public lands onto privately owned land, id., this
provision, by its plain language, only applies to wild horses that are currently
found onand thus can be removed fromthat private land after the landowner
requests such removal. See Walters v. Metro. Educ. Enters., Inc., 519 U.S. 202,
207 (1997) (In the absence of an indication to the contrary, words in a statute are
assumed to bear their ordinary, contemporary, common meaning (quotation marks
and citation omitted)).
Against this backdrop, Respondents have made three critical concessions
that significantly bolster Petitioners Chevron Step 1 argument. First, BLM admits
that, in addition to removing wild horses from private lands in response to RSGAs
separate Section 4 request, BLM also permanently removed hundreds of wild
horses from public lands, ostensibly under only its limited Section 4 authority.
Second, BLM concedes that it did not even purport to comply with the mandatory
procedures Congress established in Section 3 with respect to the public lands
involved, failing to determine that excess horses were present on public lands or
9
Document: 01019579271
Page: 17
that any permanent removal of wild horses from these public lands was necessary.
Third, despite the fact that Section 3 allows BLM to remove wild horses from
public lands only to achieve appropriate management levels, 16 U.S.C.
1333(b)(2), BLM concedes that its action left these HMAs far below the AMLs
that BLM itself established in the binding RMPs that govern these areas. See Fed.
Br. at 22 (To be sure, the 2014 gather removed horses from public land portions
in the checkerboard, and left those HMAs below their appropriate management
levels established in the HMAs respective resource management plans.).
Evidently recognizing the vulnerability of their legal position, Respondents
posit two arguments for why this Court should not invalidate BLMs action on
Chevron Step 1 grounds: (1) Congress intended for Section 4s limited authority to
remove wild horses from private lands to encompass public lands when horses
found on public lands have previously strayed onto private lands or may do so in
the future; and (2) Congress did not speak in the Wild Horse Act as to how BLM
should manage wild horses in checkerboard land patterns or other HMAs involving
a mix of public and private lands. See Fed. Br. at 22-23, 26-30; Wyo. Br. at 22-24;
RSGA Br. at 36-38. Neither argument has any merit.
Although BLM has made only a Chevron Step 2 argument that the agency
may reasonably invoke its Section 4 authority to remove federally protected wild
10
Document: 01019579271
Page: 18
horses from public lands under certain circumstances, RSGA and the State of
Wyoming have argued under Chevron Step 1 that Congress plainly intended for
BLM to remove all wild horses from public lands under Section 4 so long as such
horses have previously strayed onto private lands or may do so at some
indeterminate future time. See RSGA Br. at 36 (asserting that as soon as a horse
moves from public lands to the Checkerboard, whether on public or private
portions, that horse is within the purview of Section 4 and must be removed
(emphases added)). The fact that BLMwhose decision is under reviewdoes
not even endorse this radical position is telling, but, in any event, there are many
reasons why Respondents groundless construction of Section 4 must be rejected.
First, as explained above, see supra at 8-9, the plain language of Section 4
forecloses any argument that Congress intended to authorize BLM to permanently
remove any wild horses found on public lands allocated for use by wild horses. To
the contrary, Section 4 merely confers limited authority on BLM to arrange to
have the animals removed from private land at the request of the landowner [i]f
wild free-roaming horses or burros stray from public lands onto privately owned
land. 16 U.S.C. 1334. Indeed, the farfetched position of RSGA and the State of
Wyoming, if adopted by this Court, would completely nullify and render
inoperable the specific procedures and prerequisites for removals of wild horses
11
Document: 01019579271
Page: 19
from public lands that Congress deliberately included in Section 3, id.

1333(b)(2), instead granting BLM carte blanche to remove wild horses from public
lands in purported compliance with requests under Section 4, which, by the
statutes plain terms, are limited to private lands, id. 1334.
Second, as Petitioners explained in their opening brief, courts have
consistently rejected the argument that BLM has a duty under Section 4much
less authority under that provisionto permanently remove wild horses from
public lands simply because such horses have previously strayed onto private lands
or may at some indeterminate future time stray onto private lands. See Pet. Br. at
44-46. Therefore, although RSGA and the State of Wyoming assert that all wild
horses found on the public lands of these HMAs are strays and must be
removed regardless of whether they currently reside on public or private land,
RSGA Br. at 36, there is simply nothing in Section 4 or the legislative history
underlying that provision indicating that Congress ever intended to provide private
landowners such as RSGA with anything more than a right to have BLM arrange
to remove wild horses from their private lands if such animals stray from public
lands onto privately owned lands. 16 U.S.C. 1334.1
Yet another unsubstantiated position advanced by RSGA without support from

BLM is that BLM may no longer manage any wild horses on the public lands of
the Checkerboard as a result of RSGAs 2010 revocation of consent to maintain
12
Document: 01019579271
Page: 20
Indeed, as Petitioners have explained, the Ninth Circuit has already rejected
Respondents reading of Section 4 in Fallini v. Hodel, in which that court held
that: (1) Section 4 clearly contemplates the possibility that wild horses may stray
onto private lands, (2) BLM has no duty, ministerial or prescribed to prevent
straying of wild horses onto private land, and (3) Section 4 does not require the
BLM to prevent straying in the first instance. 783 F.2d 1343, 1344-46 (9th Cir.
1986) (emphases added). Hence, the ruling that RSGA and the State of Wyoming
seek from this Courti.e., that Section 4 mandates that BLM must permanently
remove from public lands any wild horse that has ever previously strayed onto
private land or that may do so at some future indeterminate time, see RSGA Br. at
36; Wyo. Br. at 21-22not only finds no support in the statutory text, its
legislative history, or basic common sense, but would also create an unnecessary
circuit split as to BLMs authority under Section 4 to preemptively remove wild
horses from public lands to prevent them from subsequently straying onto private
wild horses on its private Checkerboard lands. RSGA Br. at 22, 46. It is
undisputed that the currently operative RMPswhich BLM adopted through
formal notice and comment decision-making processesrequire BLM to manage
wild horses on the public lands of these HMAs (including the Checkerboards
public lands) unless and until BLM formally amends those RMPs by either
changing the boundaries of these public land HMAs or modifying the AMLs that
apply to these public lands. See Pet. Br. at 58-63.
13
Document: 01019579271
Page: 21
lands. See United States v. Games-Perez, 695 F.3d 1104, 1115 (10th Cir. 2012)
([T]he circuits have historically been loath to create a split where none exists.).
This Court should decline that invitation and instead apply the plain language
Congress included in the Wild Horse Act for such matters.2
Respondents second Chevron Step 1 argumentwhich BLM does endorse
(and indeed upon which the federal governments case hinges)is also meritless.
Respondents contend that even if Section 4 did not authorize BLM to remove wild
horses from public lands to prevent future straying onto private lands, Congress
Petitioners relied heavy on Fallini in their opening brief, as well as Roaring

Springs Assocs. v. Andrus, 471 F. Supp. 522, 523 (D. Or. 1978) (holding that
[e]ven if . . . [BLM] must go back again to retrieve the animals each time it
receives a new request from a private landowner to remove a horse from his
private land, that is nevertheless [BLMs] duty prescribed by the statute)both
of which establish that BLM may not preemptively remove wild horses from
public lands to avoid subsequent straying onto private lands because Section 4 only
authorizes BLM to retrieve horses from private lands when it receives a Section 4
request. See Pet. Br. at 8, 33-35, 45-46, 53. Remarkably, Federal Respondents
only respond to Petitioners arguments in this respectand the likelihood of a
circuit splitin a single footnote, Fed. Br. at 35 n.19, which this Court has
repeatedly held is insufficient to preserve an argument. See, e.g., Hill v. Kemp, 478
F.3d 1236, 1255 n.21 (10th Cir. 2007) (holding that [w]e will not consider an
argument raised in such a perfunctory manner where defendants argue in a
footnote that claims five and six are barred). In any event, Respondents attempts
to mischaracterize Fallini and Roaring Springs are unavailing, as those rulings
clearly demonstrate that nothing in Section 4 authorizesmuch less requires
BLM to permanently remove any wild horses from public lands because a private
landowner believes that such horses may stray onto his private lands at some
indeterminate future date.
14
Document: 01019579271
Page: 22
must have failed to address the unique situation of the Checkerboard. Therefore,
Respondents argue, this Court must move to Chevron Step 2 to assess whether
BLMs actions constitute a permissible construction of the Act. See Fed. Br. at 23
(admitting that Section 3 and Section 4 guide BLM in how to manage horses on
public and private lands, respectively but asserting that neither provision speaks
to how BLM should manage horses in areas where public and private land are
interspersed); id. at 26 (arguing that the Act is silent on how BLM is to address
this unique land management problem). The plain language of the statute,
however, forecloses any notion that Congress did not intend for BLMs Section 3
obligations to extend to all public lands administered by the agency for wild horse
management, whether or not there may also be private lands inside of or adjacent
to those public land HMAs.
Once again, Congress spoke in unequivocal terms in Section 3 of the Act in
imposing certain obligations on BLM before it may ever remove any wild horses
from public lands, 16 U.S.C. 1333(b)(2), and Congress deliberately defined
public lands to mean any lands administered by the Secretary of the Interior
through BLM. Id. 1332(e) (emphasis added). Congress pointedly did not
exempt from that definition public lands that border or contain private lands.
Section 4 of the Act does not qualify the application of Section 3 to any and all
15
Document: 01019579271
Page: 23
public lands, and instead merely provides a limited ability for private landowners
to request that BLM remove a wild horse from their private property. Id. 1334.
By defining the public lands to which certain obligations apply to mean
any lands administered by BLM for wild horse management, Congress left no
question that it intended BLM to apply those prescriptions to all public lands
before it sought to permanently remove any horses from any public lands.
Congress definitional clarity alone is sufficient to resolve this appeal in
Petitioners favor. See United States v. Gonzales, 520 U.S. 1, 5 (1997) (rejecting
an interpretation of any other term of imprisonment to mean limited to some
subset of prison sentences because any means one or some indiscriminately of
any kind); Kelley v. City of Albuquerque, 542 F.3d 802, 814 (10th Cir. 2008)
(holding that [t]he term any carries an expansive meaning when . . . it is used
without limitation.); Perf. Coal Co. v. Fed. Mine Safety & Health Rev. Commn,
642 F.3d 234, 239 (D.C. Cir. 2011) (under Chevron, there is no reason to
manufacture ambiguity when . . . the legislative prose is pellucid).
Furthermore, Congress was intimately familiar with the circumstances of the
Wyoming Checkerboard when it enacted the Wild Horse Act. In fact, Congress
created the Checkerboard land pattern and then granted these lands to BLM well
before passing the Act. See Pacific Railroad Act of 1862, 12 Stat. 489, 491-92 2.
16
Document: 01019579271
Page: 24
Thus, this Court must assume that by subsequently refusing to create any
exceptions to Section 3s application to any public landslet alone an exception
specific to the Wyoming Checkerboard (or any other instance of the common
checkerboard pattern of land ownership)Congress must have deliberately chosen
for Section 3s safeguards to apply to every wild horse removal from any public
lands. See Erlenbaugh v. United States, 409 U.S. 239, 244 (1972) (courts must
necessarily assume[] that whenever Congress passes a new statute, it acts aware
of all previous statutes on the same subject (citation omitted)). In any event,
because Congress itself did not see fit to devise an exception for managing the
Checkerboard (or any other HMA), BLM may not create a statutory provision that
would fundamentally alter the entire regulatory regime. See Whitman v. Am.
Trucking Assns., Inc., 531 U.S. 457, 468 (2001) (Congress . . . does not alter the
fundamental details of a regulatory scheme in vague terms or ancillary
provisionsit does not, one might say, hide elephants in mouseholes.).
Indeed, Respondents argument has been repeatedly rejected by courts in
analogous contexts where federal agencies have argued that, despite broad and
unqualified statutory language of general applicability, Congress failure to
specifically negate every conceivable possibility somehow renders the statute
ambiguous and opens the door for the agency to fill in the gap. For example, faced
17
Document: 01019579271
Page: 25
with a functionally indistinguishable argument that an agency could act so long as

Congress had not specifically prohibited that action, the DC Circuit explained:
Implicit in the EPAs argument is the notion that if Congress has not
mentioned public health in [the statute], then Congress is silent or
ambiguous as to that issue, and the Agency therefore has discretion to
regulate on the basis of that issue. This argument, however,
misconstrues the Chevron analysis. . . . [W]ere courts to presume a
delegation of power absent an express withholding of such power,
agencies would enjoy virtually limitless hegemony, a result plainly out
of keeping with Chevron and quite likely with the Constitution as well.
Ethyl Corp. v. EPA, 51 F.3d 1053, 1060-61 (D.C. Cir. 1995); see also Am. Petr.
Inst. v. EPA, 52 F.3d 1113, 1120 (D.C. Cir. 1995) (To suggest, however, that
Chevron step two is implicated any time a statute does not expressly negate the
existence of a claimed administrative power (i.e. when the statute is not written in
thou shalt not terms), is both flatly unfaithful to the principles of administrative
law . . . and refuted by precedent. Thus, we will not presume a delegation of
power based solely on the fact that there is not an express withholding of such
power.). This is precisely why the Supreme Court has held that [t]he fact that a
statute can be applied in situations not expressly anticipated by Congress does not
demonstrate ambiguity but rather [i]t demonstrates breadth. Massachusetts v.
EPA, 549 U.S. 497, 532 (2007) (quotation marks and citation omitted).
Accordingly, because BLM is attempting to imply a delegation of power
under Section 4which Congress did not authorizeby disingenuously asserting
18
Document: 01019579271
Page: 26
that Congress has not spoken to the management of public land wild horse
removals in the Checkerboard (which is, in fact, fully encompassed by the breadth
of 16 U.S.C. 1333(b)(2), 1332(e)), this argument cannot pass muster.3
In short, this case presents a straightforward legal inquiry that must be
resolved on Chevron Step 1 grounds. The plain language of the Wild Horse Act
compels the conclusion that Congress did not authorize BLM in Section 4 of the
Act to permanently remove any federally protected wild horses from public lands
in these HMAs without complying with the safeguards imposed in Section 3 of the
Act. Hence, unless and until BLM seeks and obtains relief from Congress through
As an example of the absurdity of Respondents argument, BLM manages wild

horses on 179 public land HMAs throughout the country, each of which has its
own unique complexities. Indeed, most HMAsas is the case herecontain
either private lands within the HMAs borders or border private lands on all sides.
Therefore, interactions between wild horses and private landowners are certainly
not unique to the three HMAs before the Court, which is why Congress created an
all-encompassing statutory provision governing all public lands (Section 3) and a
similar provision governing all private lands (Section 4). Yet, under Respondents
view, the only way Congress could address the unique circumstances of each HMA
would be to create specific statutory exceptions as to each of the 179 HMAs, which
is not only unworkable but it is simply not how Congress legislates. Instead,
Congress optedconsistent with other federal environmental lawsto create
provisions of general applicability that apply to all HMAs until and unless
Congress amends the legislation to address the local needs of specific HMAs. See
Mass., 549 U.S. at 532 (pointing out the breadth of the environmental law at
issue and holding that [b]ecause greenhouse gases fit well within the Clean Air
Act's capacious definition of air pollutant, we hold that EPA has the statutory
authority to regulate the emission of such gases from new motor vehicles).
3
19
Document: 01019579271
Page: 27
legislative amendment, this Court must enforce the plain terms of the Wild Horse
Act. See Friends of the Earth v. EPA, 446 F.3d 140, 142 (D.C. Cir. 2006) (stating
that if an agency believes that statutory compliance would lead to undesirable
consequences, then it must . . . take its concerns to Congress). Because BLM
admits that it never even purported to satisfy the legal prerequisites that Congress
imposed before any wild horse may be removed from any public lands, see Fed.
Br. at 23 (explaining that BLM decid[ed] to gather horses on both private and
public land portions of the checkerboard under Section 4, independent of any
public land management responsibilities required by Section 3), the district court
ruling must be reversed.4
Amici curiae Wyoming Stock Growers Association and Mountain States Legal
Foundation asserton the basis of a legislative amendment that was never
enactedthat Congress intended to grant BLM authority under Section 4 to
remove wild horses from public lands. See Amicus Curiae Br. at 18-26. None of
the Respondents (including BLM) join this argument, and for good reason. Not
only is the legislative history unclear as to why this amendment never made it out
of committee, but it ignores that the proposal was never vetted by the full Congress
(thus defeating any notion of Congressional acquiescence). In any event, the
Supreme Court has explained that it would be folly to divine legislative intent from
Congress inaction to adopt a specific amendment, especially whereas hereit
has adopted statutory language that is plain on its face. See, e.g., United States v.
Price, 361 U.S. 304, 310-11 (1960) (finding that non-action by Congress affords
the most dubious foundation for drawing positive inferences, where Congress did
not adopt an express repudiation of [two Ninth Circuit] decisions when
amending a law).
20
B.
Document: 01019579271
Page: 28
If The Court Reaches Chevron Step 2, BLMs Interpretation Is

Not A Permissible Construction Of The Wild Horse Act.
Although the Court need not reach Chevron Step 2 because Congress spoke
directly to the management and removal of wild horses from all public lands in
Section 3 of the Act, and did not qualify those obligations in any way in Section 4,
should the Court nevertheless deem the statute ambiguous, BLMs construction
cannot withstand scrutiny under Chevron Step 2. As Petitioners have explained,
BLMs action cannot be upheld under Chevron Step 2 for three reasons. See Pet.
Br. at 49-60.
First, BLMs purported statutory interpretation consists of either cursory
statements in the decision document under review that were never subject to notice
and comment procedures, or post hoc rationalizations of agency counsel, neither of
which can be afforded Chevron deference (or any other form of deference) by the
Court. See Mission Group of Kan. v. Riley, 146 F.3d 775, 781-82 (10th Cir. 1998).
Second, BLMs interpretation violates every major canon of statutory construction
by failing to harmonize Sections 3 and 4 and rendering Section 3 inoperable and/or
superfluous in the Checkerboard, and also contravenes the entire purpose the
statute to protect and manage wild free-roaming horses and burros as components
of the public lands. 16 U.S.C. 1333(a). And third, BLMs action is inconsistent
with the agencys own past practice and interpretation of the Act, including as
21
Document: 01019579271
Page: 29
recently as 2013 when BLM determined that it could reconcile Sections 3 and 4
simultaneously in the public and private lands of the Checkerboard.5
In response, while acknowledging that BLM removed wild horses from
public lands without first determining if such horses were excess animals and
without returning any wild horses to the public lands of these HMAs outside of the
Checkerboard to ensure that BLMs action would achieve appropriate
management levels as prescribed by the Wild Horse Act and the binding RMPs,
16 U.S.C. 1333(b)(2), Respondents nevertheless contend that BLMs
unprecedented treatment of the checkerboard as private lands for the purposes of
horse removal is reasonable in the unique context presented by the checkerboard.
Evidently concerned about Petitioners Chevron Step 2 arguments, Federal

Respondents assert that Petitioners have waived any arguments concerning the
application of Chevron deference to BLMs action. See Fed. Br. at 37-38 & n.21
(asserting that Petitioners have not fully brief[ed] the issue and that this Court
should decline to consider this argument). Contrary to the governments
suggestion, Petitioners have long questioned whether BLMs statutory construction
could pass muster under Chevron Step 2 in light of the fact that it took place in a
cursory decision document without the benefit of public comment and was then
incorporated in myriad post hoc rationalizations of agency counsel. See Pet. Br. at
49-51 & n.10; Docket Entry 67 at 32-33; Docket Entry 74 at 21 & n.11. If any
argument has been waived, it is Federal Respondents first-ever insistence on
appeal that its construction should be afforded Skidmore deference, see Fed. Br.
42-43. See Hydro Res., Inc. v. EPA, 608 F.3d 1131, 1146 n.10 (10th Cir. 2010) (en
banc) (EPA has not sought Skidmore deference, and when a party chooses not to
pursue a legal theory potentially available to it, we generally take the view that it is
inappropriate to pursue that theory in our opinions.).
5
22
Document: 01019579271
Page: 30
Fed. Br. at 22. Even though BLMs action reads Section 3 out of the statute
entirely, Respondents assert that BLM had no choice but to exercise its delegated
authority to resolve its conflicting mandates in this manner. Id. at 23. Indeed,
while recognizing that RSGAs only remedy to address horses on its lands is to
request their removal under Section 4, id. at 29 (emphases added), BLM argues
that treat[ing] the checkerboard as private lands for the purposes of wild horse
removal is reasonable here because of the purported tension between the
obligations imposed by Sections 3 and 4. Id. at 25, 28. None of these arguments
affords a basis for finding BLMs action permissible under the circumstances.
As a threshold matter, any tension between Sections 3 and 4 has been
manufactured by BLM for the sole purpose of justifying its unprecedented decision
to permanently remove wild horses from public lands without satisfying the legal
prerequisites of Section 3. Not only has BLM never previously deemed there to be
such great tension that the agency must completely abandon its obligation to
protect and manage wild free-roaming horses and burros as components of the
public lands, 16 U.S.C. 1333(a), but in any event Respondents unfounded
tension argument misleadingly presents the Court with a false dichotomy that
BLM must choose either to comply with Section 4 or comply with Section 3. This
assertion is patently inaccurate.
23
Document: 01019579271
Page: 31
In reality, as explained supra at 2-4, there are actions within BLMs

discretion that can fully serve the purposes of both Sections 3 and 4
simultaneously. Indeed, in response to RSGAs Section 4 request, BLM could
have arranged to remove all wild horses that BLM found on RSGAs private lands
at the time of the roundup (without taking any action with respect to horses found
on public lands at that time), thereby fully resolving the pending Section 4 request.
The fact that RSGA, under that scenario, may in the future lodge a new Section 4
request to remove horses that later stray onto its lands is precisely what
Congress contemplated in the Act. See Roaring Springs, 471 F. Supp. at 523
(holding that [e]ven if . . . [BLM] must go back again to retrieve the animals
each time it receives a new request from a private landowner that is nevertheless
[BLMs] duty prescribed by the statute).
Alternatively, because an agency may never ignore clear statutory
commands in order to enhance the agencys own administrative convenience, see
Pet. Br. at 47-49; see also Elwell v. Okla. ex rel. Bd. Of Regents of Univ. of Okla.,
693 F.3d 1303, 1313 (10th Cir. 2012) (explaining that agencies and courts are
never permitted to disregard clear statutory directions), there are myriad
additional options that could fully effectuate both Sections 3 and 4, if BLM
genuinely views the Checkerboard lands as so intertwined that it is impossible to
24
Document: 01019579271
Page: 32
manage them for wild horses separately. Fed. Br. at 26. For example, the
approach adopted by BLM in its 2013 decision-making process concerning the
Adobe Town and Salt Wells HMAsin which BLM planned to gather all wild
horses from both the public and private lands of the Checkerboard pursuant to both
Sections 3 and 4 of the Act, and then to return to the public lands outside the
Checkerboard the minimum number of wild horses necessary to achieve the
applicable AMLswould have harmonized both provisions by fully responding to
RSGAs Section 4 request by immediately removing all horses from RSGAs
private lands (i.e., the only right granted to RSGA by that provision) while at the
same time ensuring that only excess animals are permanently removed from the
public lands of these HMAs and that all AMLs are achieved on those public lands
(as required by Section 3).6
It is worth noting that although BLM correctly proposedpursuant to both

Sections 3 and 4to remove all wild horses from the public and private lands of
the Checkerboard before achieving the AML on the public lands of these HMAs
outside of the Checkerboard in its 2013 decision, see Pet.App.130-138, when
implementing that decision BLM inexplicably failed to remove all of the wild
horses from the Checkerboards private lands. See Fed. Br. at 17 (BLM stopped
the gather, leaving some horses on the checkerboard to which RSGA later
objected); Wyo. Br. at 13 (stating that for reasons that are unclear, [BLM] left
an amount of wild horses . . . in the checkerboard lands); RSGA Br. at 19 (BLM
did not gather several hundred wild horses from the Checkerboard.). Thus, any
subsequent concerns raised about the 2013 roundup relate to BLMs failed
implementation rather than the approach itself which, when properly implemented,
indisputably harmonizes Sections 3 and 4. See Fed. Br. at 30 (BLM subsequently
25
Document: 01019579271
Page: 33
Not only would such action give full effect to both statutory provisions
rather than subverting one at the expense of the otherbut it is also a
commonsense approach because those horses that are relocated to the far reaches
of the public lands outside the Checkerboard to achieve AML in these HMAs
would then be much farther from RSGAs private lands, thereby significantly
increasing the amount of time before any potential new Section 4 request by
RSGA. See 16 U.S.C. 1333(a) (directing that all [wild horse] management
activities shall be at the minimal feasible level). Thus, given that BLM had
sensible options at its disposal to fully serve both Sections 3 and 4 of the Act
indeed, options BLM itself had previously determined were most appropriate to
address the Checkerboardthe agencys decision to instead permanently remove
all wild horses from the public lands of the Checkerboard under Section 4 without
even purporting to comply with the legal obligations that expressly apply to all
acknowledged that the 2013 gather did not comply with . . . Section 4, because
BLM did not remove all horses from the checkerboard.). On the other hand,
Petitioners are certainly not arguing that BLM should have left wild horses on
RSGAs private lands as it did in implementing the 2013 roundup, see Fed. Br. at
31 (asserting that Petitioners claim that result is required), but instead Petitioners
contend that BLM should have adopted an approach in 2014 similar to that
proposed and endorsed in the agencys own 2013 roundup decision that would
(and should) have gathered all wild horses from the Checkerboard and thus fully
resolved RSGAs Section 4 request without running afoul of Section 3.
26
Document: 01019579271
Page: 34
public land wild horse removals cannot be deemed a permissible or reasonable

construction of the statute. See Michigan v. EPA, 135 S. Ct. 2699, 2708 (2015)
(Chevron allows agencies to choose among competing reasonable interpretations
of a statute; it does not license interpretive gerrymanders under which an agency
keeps parts of statutory context it likes while throwing away parts it does not.).7
Although, as Petitioners have explained, a consent decree cannot trump statutory

language, see Pet. Br. at 57 (citing Local No. 93, Intl Assn of Firefighters v.
Cleveland, 478 U.S. 501, 526 (1986), RSGA contends that the 2013 Consent
Decree somehow required BLM to remove all wild horses from the private and
public lands of the Checkerboard without complying with Section 3. See RSGA
Br. at 17, 42. In reality, however, the language RSGA cites makes crystal clear
that any commitment was limited to RSGAs private landsi.e., BLM agreed to
remove all wild horses located on RSGAs private lands, including Wyoming
Checkerboard lands, Pet.App.121 (emphasis added)because the use of the
comma followed by including specifies that this statement refers only to RSGAs
private lands (including RSGAs private lands found within the Checkerboard).
Likewise, despite BLMs effort to distance itself from its representations to a
federal court, see Fed. Br. at 40 n.23, BLM has previously stated its viewwhich
contradicts its position in this casethat the 1981 district court order separately
required BLM to remove all wild horses from the checkerboard grazing lands
(which can only be interpreted as private lands) . . . . [to] address[] BLMs duty
under 16 U.S.C. 1334 and to remove all excess horses from within the Rock
Springs District (which can only be interpreted as public lands) to address[]
BLMs obligations under 16 U.S.C. 1333. Pet.App.218-219 (emphases added).
BLMs representations in this respect reinforce that there is nothing in the 1981
court order that allows BLM to avoid its separate Section 3 obligations on the
public lands of these HMAs when addressing its Section 4 obligations on private
lands found therein.
27
Document: 01019579271
Page: 35
Indeed, again, not only is BLMs novel interpretation at odds with the
agencys own longstanding practice in interpreting its mandates and their
application to the Checkerboard (e.g., the 2013 roundup decision), but BLMs
construction violates every major canon this Court must use in determining the
reasonableness of BLMs position because it unnecessarily renders a major
statutory provision (Section 3) inoperable, redundant, or superfluous; it fails to
reconcile two purportedly conflicting provisions despite myriad ways of
effectuating both; and it needlessly disregards one standard of compliance in
service of another. See United States v. Power Engg Co., 303 F.3d 1232, 1238
(10th Cir. 2002) ([W]e cannot construe a statute in a way that renders words or
phrases meaningless, redundant, or superfluous.) (citations and quotation marks
omitted); Watt v. Alaska, 451 U.S. 259, 266-67 (1981) (courts must adopt statutory
interpretations that give effect to each [provision] if we can do so while
preserving their sense and purpose); Morton v. Mancari, 417 U.S. 535, 551
(1974) (When two [provisions] are capable of co-existence, it is the duty of the
courts, absent a clearly expressed congressional intention to the contrary, to regard
each as effective.); Friends of the Earth, 446 F.3d at 145 (holding that where a
statute presents two standards for compliance, [t]he existence of two conditions
does not authorize [the agency] to disregard one of them).
28
Document: 01019579271
Page: 36
For all of these reasons, should the Court reach Chevron Step 2 it must reject
BLMs patently unreasonable interpretation of the Wild Horse Act as an
impermissible construction of the statute. See Whitman, 531 U.S. at 485 (holding
that an agency may not construe the statute in a way that completely nullifies
textually applicable provisions meant to limit its discretion).
II.
BLMS SUBSTANTIAL REDUCTION OF THESE WILD HORSE

POPULATIONS FAR BELOW AML ON THESE PUBLIC LANDS
FLOUTS THE WILD HORSE ACT, FLPMA, AND THE BINDING
RMPs.
Crucially, Federal Respondents do not disputeand in fact admitthat
BLMs 2014 roundup reduced the wild horse populations on the public lands of
these HMAs far below the AMLs required by the Wild Horse Act and that are set
forth in the binding RMPs that direct BLMs management of these areas of public
lands. See Fed. Br. at 22 (To be sure, the 2014 gather removed horses from
public land portions in the checkerboard, and left those HMAs below their
appropriate management levels established in the HMAs respective resource
management plans.). Nevertheless, despite the fact that BLMs action of reducing
these populations far below AML stands in flagrant violation of the legally binding
RMPs, as well as the Wild Horse Act and FLPMA, Respondents insist that the
AMLs (and the laws implementing those AMLs) somehow do not apply to the
29
Document: 01019579271
Page: 37
public lands involved here simply because BLM labeled its action a Section 4
private land removal. This argument cannot pass muster or common sense.
Federal Respondents assert that BLM can ignore the mandatory AMLs that
apply to these public lands because even though BLM manages wild horses in the
[public land] HMAs in accordance with FLPMA, FLPMA does not apply to
private lands and BLM opted to label this roundup as a private land gather under
Section 4. Fed. Br. at 43. Of course, BLMs argument cannot be sustained in any
event because BLM was foreclosed from removing any wild horses from these
public lands pursuant to Section 4. See supra 7-20. Moreover, BLM has also
failed to provide any support for its position that the agency may erroneously apply
a private land removal label to a gather that admittedly involves public lands and
thereby compound its major factual error by then refusing to comply with binding
legal standards that all parties agree do apply to the public lands at issue.
In other words, because it is unassailable that BLMs action involved public
landsand BLM concedes that the binding RMPs and the AMLs established
therein apply to all public lands in these HMAs, see Fed. Br. at 43the fact that
BLM called the roundup one that was conducted under Section 4 is not a basis
for the agency to jettison its legal obligations that apply to these public lands.
Simply put, if BLM desired to take action with respect to federally protected wild
30
Document: 01019579271
Page: 38
horses found on these public lands, it had to at least ensure compliance with the
binding AML standards that the agency acknowledges apply to these lands.8
Accordingly, for many of the same reasons that BLM is not legally
authorized to remove federally protected wild horses from public lands under
Section 4 of the Wild Horse Act, BLM cannot contravene its own governing
AMLs and the laws upon which they are predicated simply because BLM
erroneouslyand unlawfullyinvoked Section 4 for this removal that
undoubtedly included public lands. Because BLMs significant reduction in the
wild horse populations on the public lands of these HMAs cannot be squared with
the binding RMPs, FLPMA, or the Wild Horse Act, BLMs action is arbitrary,
Federal Respondents erroneously assert that without a temporary population

drop below appropriate management levels, BLM could not otherwise comply
with its Section 4 obligations. Fed. Br. at 44. But Petitioners have extensively
dispelled any notion that BLM could not have adopted an approach that would
fully comply with the agencys Section 4 obligations while also achieving AML on
the public lands of these HMAs outside of the Checkerboard. See supra at 23-27.
Likewise, although Federal Respondents note that it is possible that the gather
could have resulted in populations above AMLs if more horses had been located in
the solid-block public lands at the time of the gather, Fed. Br. at 30 n.17, the
flipside is also true in that it is possible that the gather could have resulted in BLM
permanently removing every single wild horse from these HMAs if they happened
to all be in the Checkerboard at the time of the gather, meaning that BLM could
have zeroed out this entire population of federally protected animals without any
public comment or other transparency in making a fundamental change to the
management of these public lands.
8
31
Document: 01019579271
Page: 39
capricious, an abuse of discretion, or otherwise not in accordance with law. 5

U.S.C. 706(2).9
III.
PETITIONERS CLAIMS ARE JUSTICIABLE.

Nor is there any merit to Respondents assertion that this appeal is moot or
otherwise improperly before the Court. See Fed. Br. at 3-5, 21-22. Although
Petitioners have already submitted extensive jurisdictional briefing refuting these
arguments, see Petitioners Jurisdictional Brief (Pet. Juris. Br.), they provide the
following additional arguments further establishing the Courts jurisdiction.
As a threshold matter, the fact that BLM has now admittedly completed its
remanded decision-making process under the National Environmental Policy Act
(NEPA), see Fed. Br. at 4 & 21, renders Respondents Rule 54(b) and
administrative remand rule arguments moot. Thus, because Respondents
arguments were premised on the existence of an ongoing NEPA process, see Fed.
Once again, RSGA is simply wrong in asserting that [o]nce RSGA revoked its
consent to tolerate wild horses pursuant to Section 4 of the WHA on October 4,
2010, BLM could no longer enforce the HMA boundaries and AMLs within the
Checkerboard. RSGA Br. at 22. Not only does BLMwhose decision is under
reviewnot advance that position, but it is beyond legitimate dispute that these
currently operative and binding RMPs continue to guide management of the BLMadministered public lands in these HMAs until and unless BLM completes a
formal public decision-making process pursuant to FLPMA changing the HMA
boundaries or modifying the AMLs. See supra note 1.
9
32
Document: 01019579271
Page: 40
Juris. Br. at 15-20, now that the underlying remand proceedings are complete and
the district court has already issued final judgment, there is no basis upon which
this Court could now find that jurisdiction is lacking either by operation of the
administrative remand rule or because the district court abused its discretion under
Rule 54(b). Therefore, in the absence of any ongoing agency proceedings, these
arguments must fail.10
With respect to mootness, Petitioners also extensively briefed that issue in
the district court, which, on the basis of those arguments and detailed declarations
submitted by Petitioners attesting to the injuries BLMs unprecedented action
causes them and the myriad ways in which court-ordered relief could redress their
harms, see Pet.App.53-75, correctly found that this case is not moot. Pet.App.8789. Moreover, this case is clearly not moot because there are various forms of
relief available to Petitioners, including, at minimum, (1) returning wild horses to
some of the public lands of these HMAs; (2) remanding to BLM for further
procedural compliance with NEPA, the Wild Horse Act, and/or FLPMA; (3)
enjoining BLMs actions on the public lands of these HMAs until the agency
As Petitioners previously explained, any challenge to BLMs new NEPA

analysiswhich is not within the scope of the Petition For Review in this case
would have to be pursued in a separate lawsuit. See Pet. Juris. Br. at 13.
10
33
Document: 01019579271
Page: 41
brings itself into legal compliance; and (4) issuing declaratory relief. See
Pet.App.87-89 (finding this case not moot because a determination can be issued
with real-world effect, whether it is an order to return horses [to the range] or to
cure a procedural irregularity). Therefore, as further explained below, the district
courts explicit findings as to the justiciability of this case should not be disturbed.
A.
This Case Is Not Moot Because Meaningful Relief Remains

Available To Remedy Petitioners Ongoing Injuries Caused By
BLMs Actions.
First, BLM has not even remotely satisfied its burden to demonstrate that it
is impossible for the challenged conductwhich, for the purposes of assessing
jurisdiction, the Court must presume to be unlawful, see Day v. Bond, 500 F.3d
1127, 1137 (10th Cir. 2007)to recur in the future. The Supreme Court has
explained that a case becomes moot only when it is impossible for a court to grant
any effectual relief whatever to the prevailing party. Chafin v. Chafin, 133 S. Ct.
1017, 1023 (2013) (emphases added). Thus, [a]s long as the parties have a
concrete interest, however small, in the outcome of the litigation, the case is not
moot if any relief whatsoever remains available to redress their alleged injuries.
Id. (emphasis added); see also Friends of the Earth v. Laidlaw Envtl. Servs., Inc.,
528 U.S. 167, 189 (2000). It is beyond legitimate disputeas the district court
34
Document: 01019579271
Page: 42
foundthat there exists at least some relief that this Court may order if Petitioners
prevail on the merits of their claims. Pet.App.87-89.
Respondents wrongly assert that this case is moot for two reasons: (1) the
2014 gather was completed before the district court issued its decision, Fed. Br. at
3, and (2) post-decisional census numbers purportedly show that two of these three
HMAs are now above AML, id. at 4-5. Neither of these arguments can overcome
BLMs heavy burden to demonstrate mootness here.
Respondents first rationale in support of mootnessi.e., that BLM
completed its gather prior to a merits decisioncan easily be rejected. Courts
have consistently found that a wild horse removal itself does not strip courts of all
discretion to issue a remedy to redress ongoing injuries. See Pet.App.87-89; In
Defense of Animals v. U.S. Dept. of the Interior, 808 F. Supp. 2d 1254, 1266 (E.D.
Cal. 2011) (rejecting BLMs argument that all possible [remedial] options are
foreclosed and finding case not moot [b]ecause the wild horses . . . removed
from the range have not been returned and thus the court could provide effective
relief in the form of relocation of the animals to the [HMA] assuming Plaintiffs
prevail). Additionally, in this context, Respondents argument makes no sense
because Petitioners have alleged that BLM failed to follow statutorily required
procedures under the Wild Horse Act and FLPMA that could easily be remedied
35
Document: 01019579271
Page: 43
by a Court order remanding to BLM for further consideration and analysis or

imposing conditions on the agencys actions.
Thus, this Court has uniformly held that where procedural relief is requested,
the fact that the activity has been completed is no impediment to the Courts
jurisdiction. See Airport Neighbors Alliance, Inc. v. United States, 90 F.3d 426,
428-29 (10th Cir. 1996) (explaining that courts still consider NEPA claims
concerning completed actions when the court can provide some remedy if it
determines that an agency failed to comply with NEPA, and finding case not
moot because if we find that the Respondents failed to comply with NEPA, we
could order that the runway be closed or impose restrictions on its use); Utah
Envtl. Cong. v. Russell, 518 F.3d 817, 824-25 (10th Cir. 2008) (explaining that
even where it is too late to . . . provide a fully satisfactory remedy the availability
of a partial remedy will prevent the case from being moot) (citations omitted);
Natl Parks Conservation Assn v. FAA, 998 F.2d 1523, 1525 n.3 (10th Cir. 1993)
(finding case not moot after construction was completed when restrictions could be
placed on the use of the project). Hence, as the district court correctly held, the
fact that BLM completed the challenged roundup in 2014 does not moot this case
because various forms of relief remain available. See Pet.App.87-89.
36
Document: 01019579271
Page: 44
Second, BLMs reliance on post-decisional census numbers that purport to

show that some of these HMAs are above AML at the present time, see Fed. Br. at
4-5, does not remotely divest the Court of jurisdiction. Because there are other
forms of available relief that have nothing to do with ordering BLM to return some
wild horses to the public lands of these HMAs (e.g., injunctive relief, declaratory
relief, or a remand for additional procedural analysis), the Court need not even
reach the question of whether, and how, these new census numbers affect this one
form of relief. In any event, because the 2015 census numbers differ greatly from
BLMs own 2014 estimates of the post-roundup wild horse population numbers
which were also based on the same census techniques and methodologiesthere
are serious questions of material fact that need to be sorted out at the remedies
stage if this Court rules for Petitioners on the merits and considers ordering the
return of some wild horses to the public lands of these HMAs.11
11
For example, BLM has not even attempted to explain how its wild horse
population estimatesas set forth in an October 2014 affidavit from an agency
officialhave varied so substantially over a span of only six months. Compare
(Pet.App.51) (estimating in late 2014 that there were 39 horses in the Salt Wells
Creek HMA, 91 horses in the Great Divide HMA, and 519 in the Adobe Town
HMA), with Fed. Br. at 19 (estimating in 2015 that there were 619 horses in the
Salt Wells Creek HMA, 579 horses in the Great Divide HMA, and 858 horses in
the Adobe Town HMA). Although wild horse populations typically grow at a rate
of 10-15% annually, according to BLM these populations have suddenly grown at
a rate of up to 1,500% over the last year. In light of the inherent problems with
BLMs census numbers, BLMs off-the-cuff post-decisional census data cannot be
37
Document: 01019579271
Page: 45
At any rate, despite Respondents suggestion that the Court could not order
BLM to return any wild horses to the public lands of these HMAs if the
populations are, in fact, above the lower end of the AML, that is not the conclusion
reached by other courts in analogous contexts. For example, BLM specifically
argued that another case was moot because the Wild Horse Act purportedly
prevents the return of wild horses to an overpopulated range. In Defense of
Animals, 808 F. Supp. 2d at 1266. However, the court rejected BLMs argument,
finding that because the plaintiffs were suffering an ongoing injury due to
BLMs action, the court could still provide effective relief in the form of
relocation of the animals to the [HMA] assuming Plaintiffs win on the merits.
Id. (emphasis added).
The same is true herei.e., there is nothing in the Wild Horse Act
preventing this Court from considering, as one available remedial option, returning
at least some horses to the range to cure BLMs legal violations, irrespective of
whether those HMAs are currently within or above AML. Hence, as the district
court correctly held, this case is clearly not moot. For example, one of the HMAs
at issuethe Great Divide Basin HMAis still indisputably below the binding
the basis for refusing to provide Petitioners with any of the myriad forms of
available relief.
38
Document: 01019579271
Page: 46
AML, as BLM estimates that there are only 579 wild horses there despite a binding
AML range of 610-800. Thus, at minimum, there is no reason why this Court
could not order BLM to return 31 wild horses to the Great Divide Basin HMA in
order to achieve the AML there, should the Court rule for Petitioners on the merits.
B.
Even If Relief Were Not Available, This Case Is Not Moot.
As explained above, because the Court has various forms of relief available
to remedy Petitioners injuries, the Court need not even reach the question of
whether any mootness exceptions apply. In any event, this case also falls under
well-established exceptions to mootness.
First, BLM cannot overcome its substantial burden of demonstrating that it
is impossible, or even unlikely, that the allegedly unlawful conduct will recur. As
the Supreme Court has explained, [t]he heavy burden of persua[ding] the court
that the challenged conduct cannot reasonably be expected to start up again lies
with the party asserting mootness. Friends of the Earth, 528 U.S. at 189. In turn,
a defendant claiming that its voluntary compliance moots a case bears the
formidable burden of showing that it is absolutely clear the allegedly wrongful
behavior could not reasonably be expected to recur. Id. at 190 (emphasis added).
Indeed, BLM made clear in its district court submissions that it cannot
provide the Court with certainty that the challenged conduct will not recur, stating
39
Document: 01019579271
Page: 47
that it is possible a gather may be necessary in the Great Divide Basin, Salt
Wells Creek, or Adobe Town HMAs; it is likely that no gather will be authorized
for the White Mountain HMA; and if a gather is authorized in 2015 or beyond it
may be very different from the challenged decisions. Docket Entry 71 at 23-25
(emphases added). In light of these equivocal statements from BLM, the agency
simply cannot meet its formidable burden of showing that it is absolutely clear
that the challenged conduct will not recur. Friends of the Earth, 528 U.S. at 190.
Second, for the same reasons that BLM cannot fully assure this Court that it
will not engage in the same allegedly unlawful conduct during future gathers in
these HMAs, the challenged conduct is also capable of repetition but evading
review. As this Court has explained, this exception applies where: (1) the
duration of the challenged action [is] 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. Buchheit v. Green,
705 F.3d 1157, 1160 (10th Cir. 2012) (citations omitted). Petitioners easily satisfy
both prongs of this test.
There is no question that, if the Court found this case moot without resolving
the merits simply because BLM pressed forward with the removal only weeks after
issuing the Decision Record and before this Court could resolve the merits,
40
Document: 01019579271
Page: 48
Petitioners would forever be relegated to seeking preliminary injunctive relief in

such cases immediately upon issuance of BLM decisions. Thus, they would never
have their day in court for final resolution of the merits based on a full
administrative record as required by the Administrative Procedure Act. See 5
U.S.C. 706 (the courts review must be based on the whole record that was
before the agency); Bar MK Ranches v. Yuetter, 994 F.2d 735, 739 (10th Cir.
1993) (explaining that APA review is generally based on the full administrative
record that was before all decision makers . . . at the time of the decision). Simply
put, a truncated preliminary proceeding cannot substitute for a well-considered
merits proceeding based on a complete record. As such, especially under the
highly abridged time-frame during which the preliminary injunction proceedings
unfolded in this case, the duration of the challenged action [is] too short to be
fully litigated prior to its cessation or expiration. Green, 705 F.3d at 1160; see
also Herriman v. Bell, 590 F.3d 1176, 1181-82 (10th Cir. 2010) (applying
mootness exception because full litigation on the merits was simply not possible
before the election) (emphasis added).
As to the second prong, BLMs own equivocal statementswhich failed to
rule out future, similarly flawed removalsshow that there is a reasonable
expectation that Petitioners may be subjected to the same action again. Green,
41
Document: 01019579271
Page: 49
705 F.3d at 1160. This point is especially salient here given that BLM has various
contractual obligations under the 2013 Consent Decree with RSGA, which by its
own terms does not terminate until February 2023. See Pet.App.126. Under these
facts, there is a reasonable, and indeed likely, expectation that these issues will
once again surface and that BLM, left to its own devices, will resort to the
unlawful conduct it is defending in this suit. See Bell, 590 F.3d at 1181-82
(applying mootness exception where defendants were uncertain as to future plans
but were considering acting adversely to plaintiffs interests). For all of these
reasons, Respondents have failed to proffer any legal or logical basis for a
mootness finding.
CONCLUSION
For the foregoing reasons and those set forth in Petitioners opening brief,
Petitioners respectfully request that the Court declare BLM in ongoing violation of
the Wild Horse Act, FLPMA, and the RMPs; vacate and remand the 2014 removal
decision; and order other relief the Court deems appropriate.
42
Document: 01019579271
Page: 50
Respectfully submitted
/s/ William S. Eubanks II
245 Cajetan Street
(970) 703-6060 / (202) 588-5049 (fax)
Katherine A. Meyer
4115 Wisconsin Avenue NW, Suite 210
Washington, DC 20016
(202) 588-5206 / (202) 588-5049 (fax)
kmeyer@meyerglitz.com
March 1, 2016
Attorneys for Petitioners-Appellants
43
Document: 01019579271
Page: 51
CERTIFICATE OF COMPLIANCE
This brief complies with the type and volume limitations of Fed. R. App. P.
32(a)(7). The brief contains 10,487 words.
/s/ William S. Eubanks II____
245 Cajetan Street
(970) 703-6060 / (202) 588-5049 (fax)
CERTIFICATE OF SERVICE
I, William S. Eubanks II, hereby certify that on March 1, 2016, I served
copies of Appellants Reply Brief on all counsel of record in this case by way of
electronic mail (ECF filing)in addition to submitting the requisite number of
identical hard copies to the Courtand I further certify that all parties to this case
are registered to receive ECF filings in this matter.
/s/ William S. Eubanks II____
245 Cajetan Street
(970) 703-6060 / (202) 588-5049 (fax)
44
Document: 01019579271
Page: 52
CERTIFICATE OF PRIVACY REDACTION

I hereby certify that all required privacy redactions have been made and,
with the exception of those redactions, every document submitted in digital form or
scanned PDF format is an exact copy of the written document filed with the Court.
245 Cajetan Street
(970) 703-6060 / (202) 588-5049 (fax)
CERTIFICATE OF VIRUS SCAN

I hereby certify that the digital submissions have been scanned for viruses
with the most recent version of a commercial virus scanning program (Symantec
Endpoint Protection, Version 12.1) and according to the program, are free of
viruses.
245 Cajetan Street
(970) 703-6060 / (202) 588-5049 (fax)
45

Filed Reply Brief PDF

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Filed Reply Brief PDF

Uploaded by

Copyright:

Available Formats

Appellate Case: 15-8033

Date Filed: 03/01/2016

Appellate Case: 15-8033

Date Filed: 03/01/2016

CORPORATE DISCLOSURE STATEMENT

Appellate Case: 15-8033

Date Filed: 03/01/2016

PETITIONERS CLAIMS ARE JUSTICIABLE .......................................32

A. This Case Is Not Moot Because Meaningful Relief Remains Available

Appellate Case: 15-8033

Date Filed: 03/01/2016

Appellate Case: 15-8033

Date Filed: 03/01/2016

Appellate Case: 15-8033

Date Filed: 03/01/2016

United States v. Gonzales,

Appellate Case: 15-8033

Date Filed: 03/01/2016

Appropriate Management Level

Bureau of Land Management

Federal Land Policy and Management Act

Herd Management Area

National Environmental Policy Act

Resource Management Plan

Rock Springs Grazing Association

Appellate Case: 15-8033

Date Filed: 03/01/2016

Appellate Case: 15-8033

Date Filed: 03/01/2016

Appellate Case: 15-8033

Date Filed: 03/01/2016

Appellate Case: 15-8033

Date Filed: 03/01/2016

Appellate Case: 15-8033

Date Filed: 03/01/2016

BLMS UNPRECEDENTED ACTION OF PERMANENTLY

Appellate Case: 15-8033

Date Filed: 03/01/2016

In response, Respondents have echoed the district courts error, skipping

Appellate Case: 15-8033

Date Filed: 03/01/2016

BLM Cannot Escape The Clear Application Of Chevron Step 1 To

In light of Respondents meager responses to Petitioners extensive Chevron

Appellate Case: 15-8033

Date Filed: 03/01/2016

appropriate management levels. Id. (emphasis added). Congress specifically

Appellate Case: 15-8033

Date Filed: 03/01/2016

Appellate Case: 15-8033

Date Filed: 03/01/2016

Appellate Case: 15-8033

Date Filed: 03/01/2016

Appellate Case: 15-8033

Date Filed: 03/01/2016

from public lands that Congress deliberately included in Section 3, id.

Yet another unsubstantiated position advanced by RSGA without support from

Appellate Case: 15-8033

Date Filed: 03/01/2016

Appellate Case: 15-8033

Date Filed: 03/01/2016

Petitioners relied heavy on Fallini in their opening brief, as well as Roaring

Appellate Case: 15-8033