Legal Naco Appeal Inteveor Response Brief PDF

Case: 15-15620, 02/12/2016, ID: 9863746, DktEntry: 26, Page 1 of 79
No. 15-15620
_________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
_________________________
NEVADA ASSOCIATION OF COUNTIES, et al.,
Plaintiff-Appellant
v.
UNITED STATES DEPARTMENT OF THE INTERIOR, et al.,
Defendant-Appellee
AMERICAN WILD HORSE PRESERVATION CAMPAIGN, et al.,
Intervenors-Defendants-Appellees
_________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEVADA
_________________________
INTERVENOR-APPELLEES RESPONSE BRIEF
_________________________
William N. Lawton
Katherine A. Meyer
Meyer Glitzenstein & Eubanks
4115 Wisconsin Ave. NW, Ste. 210
Washington, DC 20016
(202) 588-5206
nlawton@meyerglitz.com
Counsel for Intervenors-Appellees
RULE 26.1 CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1, IntervenorDefendant-Appellee American Wild Horse Preservation Campaign (AWHPC)
states that it has no parent corporations, and that it has no stock.
TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................................................................... iv
STATEMENT OF ISSUES .......................................................................................1
ADDENDUM ............................................................................................................2
STATEMENT OF THE CASE ..................................................................................2
STATEMENT OF FACTS ........................................................................................4
I.
STATUTORY AND REGULATORY BACKGROUND............................4

A.
The Wild Free-Roaming Horses And Burros Act ......................................4
B.
The Taylor Grazing Act .............................................................................8
C.
The Administrative Procedure Act ............................................................9
II.
WILD HORSES IN NEVADA ...................................................................10
III.
PROCEEDINGS BELOW ..........................................................................11
ARGUMENT ...........................................................................................................18
INTRODUCTION................................................................................................18
I.
NACO MISSTATED THE STANDARD OF REVIEW. ..........................19
II.
THE DISTRICT COURT PROPERLY DISMISSED NACOS CLAIMS

UNDER THE APA. ....................................................................................22
A.
The District Court Correctly Found That NACOs Amended Complaint

Asserted An Impermissible Programmatic Attack On BLMs
Management Of Wild Horses In Nevada. ................................................22
B.
The District Court Correctly Dismissed NACOs Claims Under Section

706(2) Of The APA Because NACO Failed To Identify Any Justiciable
Final Agency Action. ...............................................................................31
C.
The District Court Properly Dismissed NACOs Claims Under Section

706(1) Of The APA Because NACO Failed To Identify Any Discrete,
Non-Discretionary Action That The Judiciary Has Authority To
Compel. ....................................................................................................39
III.
THE DISTRICT COURT PROPERLY DISMISSED PLAINTIFFS DUE

PROCESS CLAIM. ....................................................................................48
IV.
THE DISTRICT COURT CORRECTLY DISMISSED THE AMENDED

COMPLAINT WITH PREJUDICE. ...........................................................51
ii
CONCLUSION ........................................................................................................54
ORAL ARGUMENT REQUEST ............................................................................55
STATEMENT OF RELATED CASE .....................................................................55
CERTIFICATE OF COMPLIANCE .......................................................................56
PROOF OF SERVICE .............................................................................................57
iii
TABLE OF AUTHORITIES
CASES
Am. Horse Protection Assn, Inc. v. Frizzell,
403 F. Supp. 1206 (D. Nev. 1975) ......................................................................40
Am. Horse Protection Assn, Inc. v. Watt,
694 F.2d 1310 (D.C. Cir. 1982)...........................................................................40
Am. Mfrs. Mut. Ins. Co. v. Sullivan,
526 U.S. 40 (1999) ..............................................................................................49
Ascon Properties, Inc. v. Mobil Oil Co.,
866 F.2d 1149 (9th Cir. 1989) .............................................................................54
Ashcroft v. Iqbal,
556 U.S. 662 (2009) ............................................................................... 19, 20, 53
Barnett v. US Air, Inc.,
228 F.3d 1105 (9th Cir. 2000) ...................................................................... 50, 51
Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007) ................................................................... 19, 20, 38, 46, 53
Blixseth v. Yellowstone Mountain Club,
796 F.3d 1004 (9th Cir. 2015) .............................................................................53
Bradshaw v. United States,
47 Fed. Cl. 549 (Fed. Cl. 2000) ...........................................................................50
Colo. Wild Horse and Burro Coal., Inc. v. Salazar,
639 F. Supp. 2d 87 (D.D.C. 2009).........................................................................7
iv
Colvin Cattle Co. v. United States,

468 F.3d 803 (Fed. Cir. 2006) .............................................................................49
Conley v. Gibson,
355 U.S. 41 (1957) ..............................................................................................20
Daniels-Hall v. National Educ. Assn,
629 F.3d 992 (9th Cir. 2010) .................................................................. 21, 44, 47
Dept of Transp. v. Pub. Citizen,
541 U.S. 752 (2004) ............................................................................................43
Dream Palace v. County of Maricopa,
384 F.3d 990 (9th Cir. 2003) ...............................................................................24
Eminence Capital, LLC v. Aspeon, Inc.,
316 F.3d 1048 (9th Cir. 2003) ...................................................................... 52, 53
Fallini v. Hodel,
783 F.2d 1343 (9th Cir. 1986) .............................................................................46
Fallini v. United States,
56 F.3d 1378 (Fed. Cir. 1995) .............................................................................50
FDIC v. Garner,
126 F.3d 1138 (9th Cir. 1997) ...................................................................... 18, 51
Florida Power & Light Co. v. Lorion,
470 U.S. 729 (1985) ............................................................................................39
Fund for Animals v. U.S. Bureau of Land Management,
357 F. Supp. 2d 225 (D.D.C. 2004) ....................................................................37
Fund for Animals, Inc. v. U.S. Bureau of Land Mgmt.,

460 F.3d 13 (D.C. Cir. 2006)....................................................................... passim
Grant School Dist. No. 3 v. Dombeck,
126 Fed. Appx. 823 (9th Cir. 2005) ....................................................................54
In Def. of Animals v. U.S. Dept. of Interior,
909 F. Supp. 2d 1178 (E.D. Cal. 2012) ...........................................................6, 44
In Def. of Animals v. U.S. Dep't of Interior,
751 F.3d 1054 (9th Cir. May 12, 2014). . . . . . . . . . . . . . . . . . . . . . . . . . .6, 40, 44
Institute for Wildlife Protection v. Norton,
205 Fed. Appx. 483 (9th Cir. 2006) ............................................................. 23, 54
Leigh v. Jewell,
No. 3:11-cv-00608, 2014 WL 31675 (D. Nev. Jan. 3, 2014) ..............................26
Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992) ............................................................................................36
Lujan v. National Wildlife Federation,
497 U.S. 871 (1990) .................................................................................... passim
Maya v. Centex Corp.,
658 F.3d 1060 (9th Cir. 2011) .............................................................................21
McCalla v. Royal MacCabees Life Ins. Co.,
369 F.3d 1128 (9th Cir. 2004) .............................................................................30
Mountain States Legal Foundation v. Hodel,
799 F.2d 1423 (10th Cir. 1986) ...........................................................................50
vi
Norton v. Southern Utah Wilderness Alliance

542 U.S. 55 (2004) ...................................................................................... passim
Neitzke v. Williams,
490 U.S. 319 (1989) ............................................................................................52
ONRC Action v. Bureau of Land Management,
150 F.3d 1132 (9th Cir. 1998) ...................................................................... 23, 54
Revis v. Slocomb Industries, Inc.,
765 F. Supp. 1212 (D. Del. 1991) .......................................................................19
Salameh v. Tarsadia Hotel,
726 F.3d 1124 (9th Cir. 2013) ...................................................................... 21, 54
San Luis Unit Food Producers v. United States,
709 F.3d 798 (9th Cir. 2013) ............................................................ 33, 40, 45, 54
Seattle Sch. Dist., No. 1 v. B.S.,
82 F.3d 1493 (9th Cir. 1996) ...............................................................................51
Seminole Tribe of Fla. v. Florida,
517 U.S. 44 (1996) ..............................................................................................29
Sierra Club v. Peterson,
228 F.3d 559 (5th Cir. 2000) ...............................................................................32
Sierra Forest Legacy v. Sherman,
646 F.3d 1161 (9th Cir. 2011) .............................................................................32
Stout v. U.S. Forest Service,
869 F. Supp. 2d 1271 (D. Or. 2012) ....................................................................44
vii
Terenkian v. Republic of Iraq,

694 F.3d 1122 (9th Cir. 2012) .............................................................................21
United States v. 14.02 Acres of Land More or Less in Fresno County,
547 F.3d 943 (9th Cir. 2008) ...............................................................................10
United States v. Fuller,
409 U.S. 488 (1973) ..............................................................................................9
United States v. Oakar,
111 F.3d 146 (D.C. Cir. 1997).............................................................................30
White v. Lee,
227 F.3d 1214 (9th Cir. 2000) .............................................................................21
Wild Fish Conservancy v. Jewell,
730 F.3d 791 (9th Cir. 2013) ...............................................................................54
Willow Creek Ecology v. U.S. Forest Service,
225 F. Supp. 2d 1312 (D. Utah 2002) .................................................................40
Zixiang Li v. Kerry,
710 F.3d 995 (9th Cir. 2013) ...............................................................................38
STATUTES
5 U.S.C. 551(13) ...................................................................................................32
5 U.S.C. 706(1) ............................................................................................. passim
5 U.S.C. 706(2) ............................................................................................. passim
16 U.S.C. 13311340 ................................................................................... 1, 4, 5
viii
16 U.S.C. 1332(f) ....................................................................................................7

16 U.S.C. 1333(a) ......................................................................................... passim
16 U.S.C. 1333(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..6, 42
16 U.S.C. 1333(b)(2)..................................................................................... passim
16 U.S.C. 1334 ..................................................................................................8, 46
28 U.S.C. 2401(a) .................................................................................................35
42 U.S.C. 4321-4370 ............................................................................................6
43 U.S.C. 1712(a) ...................................................................................................5
43 U.S.C. 315b ..................................................................................................9, 49
43 U.S.C. 315f.........................................................................................................9
RULES
Federal Rule of Appellate Procedure 26.1 ................................................................. i
Federal Rule of Appellate Procedure 28(d) ...............................................................2
Federal Rule of Appellate Procedure 30-1.7 .............................................................3
Federal Rule of Appellate Procedure 32(a)(7)(B)(iii) .............................................56
Federal Rule of Appellate Procedure 32(a)(7)(C) ...................................................56
Federal Rule of Civil Procedure 12(b)(1) ............................................... 3, 13, 21, 54
ix
Federal Rule of Civil Procedure 12(b)(6) ............................................... 3, 13, 21, 54

Federal Rule of Civil Procedure 12(c) .................................................................3, 13
Federal Rule of Civil Procedure 15(a)(1) ................................................................14
Ninth Circuit Rule 32-1............................................................................................56
REGULATIONS
40 C.F.R. 1502.14(a)...............................................................................................6
43 C.F.R. 4700.0-2 ..................................................................................................5
43 C.F.R. 4700.0-5(d) .............................................................................................6
43 C.F.R. 4710.1 .....................................................................................................6
43 C.F.R. 4710.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. ..6
43 C.F.R. 4710.3-1 ..................................................................................................6
43 C.F.R. 4710.5 ...................................................................................................36
43 C.F.R. 4710.5(a)...................................................................................... 8, 9, 43
43 C.F.R. 4720.2-1 ............................................................................................8, 46
STATEMENT OF ISSUES
1.
Whether the district court was correct to dismiss a case brought by a
consortium of livestock grazing organizations against the Bureau of Land

Management (BLM) to compel the agency to completely revamp its entire
program for managing wild horses and burros throughout Nevada under the Wild
Free Roaming Horses and Burros Act (Wild Horse Act or WHA), 16 U.S.C.
13311340, when the district court found that the case was a programmatic
challenge foreclosed by the Supreme Courts decisions in Lujan v. National
Wildlife Federation, 497 U.S. 871 (1990), and Norton v. Southern Utah Wilderness
Alliance (SUWA), 542 U.S. 55 (2004)?
2.
Whether the district court correctly dismissed Plaintiffs claims under
section 706(2) of the APA, which provides that a reviewing court shall set aside
agency action that is arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law, 5 U.S.C. 706(2), when the district court found that
Plaintiffs had failed to challenge any specific final agency action by the BLM or
explain how any final agency action had harmed any Plaintiff?
3.
Whether the district court correctly dismissed Plaintiffs claims under
section 706(1) of the APA, which provides that a reviewing court shall compel
agency action unlawfully withheld or unreasonably delayed, 5 U.S.C. 706(1),
when the district court found that Plaintiffs had failed to identify any nondiscretionary, ministerial duty that BLM had failed to carry out?
4.
Whether the district court properly dismissed Plaintiffs Amended
Complaint with prejudice when, before Plaintiffs filed their Amended Complaint,
the Intervenor-Appellant had moved to dismiss the case precisely because Lujan
and SUWA bar the programmatic challenge Plaintiffs attempted to bring, yet when
Plaintiffs filed the Amended Complaint they failed to cure any of the defects in the
original Complaint?
ADDENDUM
Pertinent statutory and regulatory provisions appear in an Addendum.
STATEMENT OF THE CASE
This appeal concerns a sweeping challenge to the BLMs entire program for
protecting and managing wild horses throughout Nevada brought by a consortium
of grazing interests led by the Nevada Association of Counties (NACO).1
Alleging pervasive failures to properly implement the Wild Horse Act, NACO
sought a declaratory judgment broadly declaring the duties and responsibilities of
[BLM] under the [WHA] and applicable rules, regulations, and directives,
requested an injunction requiring [BLM] to promptly and fully comply with all
1
Pursuant to Fed. R. App. P. 28(d), this brief refers to parties by name. For
brevity, the brief refers to Appellants as NACO unless greater specificity is
necessary.
2
provisions of the [WHA] and to [a]dhere to multiple use principles, and further
asked the district court to retain jurisdiction to monitor and enforce compliance.
Am. Compl. 9395, ER 6768. As the district court properly found, NACO
essentially ask[ed] the [court] to compel compliance with the [WHA] and
refashion [BLMs] management of wild horses and burros in Nevada. Dist. Ct. at
7, ER 7.
Intervenor-Appellee-Defendant American Wild Horse Preservation
Campaign (AWHPC) filed a motion to dismiss under Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6), and because its Proposed Answer had been filed
with its motion to intervene, alternatively moved for a judgment on the pleadings
under Rule 12(c), asserting that NACOs Complaint was an impermissible
programmatic challenge to BLMs administration of the WHA under both Lujan,
497 U.S. at 89194, and SUWA, 555 U.S. at 64. Mem. in Supp. Mot. to Dismiss,
Docket Entry 38 (hereinafter MTD), AISER 738.2 BLM and another
Defendant-Intervenor filed similar motions to dismiss. Dist. Ct. at 2, ER 2. After
requesting a stay of AWHPCs motion to dismiss on the grounds that it would be
filing an amended complaint that would render resolution of that motion
unnecessary, AISER 5, NACO eventually filed an Amended Complaint that did
2
As permitted by Fed. R. App. P. 30-1.7, AWHPC has filed supplemental excerpts

of record. To distinguish these from any excerpts of record filed by other parties,
AWHPC cites its supplemental excerpts as AISER, for Appellee-Intervenors
Supplemental Excerpts of Record.
3
not address any of the grounds for AWHPCs motion to dismiss. ER 79. The
district court subsequently granted AWHPCs motion, held that the other parties
motions to dismiss were moot, and dismissed the case with prejudice.
STATEMENT OF FACTS
To place AWHPCs arguments in context, it is important to discuss not only
the statutory and regulatory provisions that apply here, but also to provide a
detailed history of the litigation that occurred in the district court.
I.
STATUTORY AND REGULATORY BACKGROUND

A.
The Wild Free-Roaming Horses And Burros Act
Congress enacted the WHA in 1971, proclaiming that wild horses are living
symbols of the rugged independence and tireless energy of our pioneer heritage
and a national esthetic resource. S. Rep. No. 92-242, at 1 (1971). Congress
further declared that wild free-roaming horses and burros contribute to the
diversity of life forms within the Nation and enrich the lives of the American
people. 16 U.S.C. 1331. Thus, Congress sought to guarantee that wild freeroaming horses and burros shall be protected from capture, branding, harassment,
[and] death, and be considered in the area where presently found, as an integral
part of the natural system of the public lands. Id. (emphasis added).
The WHA directs the Secretary of the Department of Interior, through BLM,
to protect and manage wild free-roaming horses and burros as components of the
public lands. 16 U.S.C. 1333(a); id. 1331 (stating that the animals are to be
considered . . . as an integral part of the natural system of the public lands); 43
C.F.R. 4700.0-2 (instructing BLM to manage wild horses and burros under the
principle of multiple use). As a result, BLM must consider protection of wild
horses when preparing or amending Resource Management Plans (RMPs) under
the Federal Land Policy Management Act (FLPMA). See 43 U.S.C. 1712(a)
(requiring RMPs for public lands); see also BLM, Wild Horses and Burros
Management Handbook H-4700-1, Rel. 4-116, at 7-8 (June 2010) (BLM
Handbook) (requiring consideration of wild horses when formulating land use
plans).3
The WHA further mandates that the Secretary shall manage wild freeroaming horses and burros in a manner that is designed to achieve and maintain a
thriving natural ecological balance on the public lands. 16 U.S.C. 1333(a). To
achieve this directive, the WHA provides that the Secretary shall maintain a
current inventory of wild free-roaming horses and burros on given areas of public
BLMs Handbook is available at

http://www.blm.gov/pgdata/etc/medialib/blm/wo/Information_Resources_Manage
ment/policy/blm_handbook.Par.11148.File.dat/H-4700-1.pdf.
3
lands, id. 1333(b)(1), which BLM does for individual herd management areas
(HMA). 43 C.F.R. 4710.2, 4710.3-1; BLM Handbook at 3035.
BLM establishes HMAs for the maintenance of wild horse and burro
herds, 43 C.F.R. 4710.3-1, based on the geographic areas that wild horses used
when Congress enacted the WHA in 1971. 43 C.F.R. 4700.0-5(d). BLM
designates and modifies HMAs when preparing RMPs. 43 C.F.R. 4710.1; BLM
Handbook at 78. HMAs are also subject to Herd Management Area Plans
(HMAP). 43 C.F.R 4710.3-1; BLM Handbook at 3643.
BLM sets an appropriate management level (AML) for each HMA
through a planning process that requires public notice and comment, as well as
compliance with the National Environmental Policy Act (NEPA) (42 U.S.C.
4321-4370), which requires all agencies to examine the environmental impacts of
their decisions and to [r]igorously explore alternative actions that would have
less adverse impacts, 40 C.F.R. 1502.14(a). BLM Handbook at 18. These
AMLs are determined through revisions to the applicable [RMP]. In Def. of
Animals v. U.S. Dept. of Interior, 909 F. Supp. 2d 1178, 1192 (E.D. Cal. 2012),
affd, 751 F.3d 1054 (9th Cir. May 12, 2014).
Because the WHA requires that [a]ll management activities shall be at the
minimal feasible level, 16 U.S.C. 1333(a), BLM aims to maintain a thriving
natural ecological balance on the public range, id., by, in part, expressing AMLs
6
as a population range within which [wild horses] can be managed for the long
term in a given HMA. BLM Handbook at 1617. Local BLM offices have
significant discretion to determine their own methods of computing AML[s] for the
herds they manage. Fund for Animals, Inc. v. U.S. Bureau of Land Mgmt., 460
F.3d 13, 16 (D.C. Cir. 2006). Thus, as the Supreme Court observed in SUWA, the
WHA provides BLM with a broad statutory mandate to carry out its duties under
the WHA. 542 U.S. at 6667.
The WHA further directs BLM to manage wild horses by removing excess
animals from public lands, but only after BLM determines that (1) an
overpopulation [of wild horses] exists on a given area of the public lands and (2)
action is necessary to remove such animals. 16 U.S.C. 1333(b)(2); see also
Colo. Wild Horse and Burro Coal., Inc. v. Salazar, 639 F. Supp. 2d 87, 98 (D.D.C.
2009) (noting that [a] prerequisite to removal under the [WHA] is that BLM first
make an excess determination). Thus, the WHA defines excess animals as those
wild horses that BLM formally determines 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).
In addition to removing excess wild horses from public lands, BLM has
discretion to close appropriate areas of the public lands to grazing use by all or a
particular kind of livestock if necessary to provide habitat for wild horses. 43
7
C.F.R. 4710.5(a). BLM may also close public lands to grazing permanently or
temporarily [a]fter appropriate public consultation, id. 4710.5(c), which entails
a site-specific environmental analysis and issuance of a proposed and final
decision. BLM Handbook at 9. Once that process has been completed, BLM
must then issue a formal Notice of Closure to the affected and interested
parties. 43 C.F.R. 4710.5(c).
In addition to vesting BLM with authority and discretion to manage wild
horses on public lands, section 4 of the WHA also protects wild horses that stray
onto private lands. 16 U.S.C. 1334. Thus, landowners may not remove or kill
such horses. Id. Instead, a landowner may inform BLM that wild horses have
strayed onto its private land, and BLM shall arrange to have the animals
removed. Id. To trigger this requirement, a landowner must provide a written
request to BLM indicating the numbers of wild horses or burros, the date(s) the
animals were on the land, legal description of the private land, and any special
conditions that should be considered . . . . 43 C.F.R. 4720.2-1. After BLM
receives that request, it will arrange to remove wild horses from such private lands
as soon as practicable. Id.
B.
The Taylor Grazing Act
Under the Taylor Grazing Act (TGA), 43 U.S.C. 315-315r, the

Secretary of the Interior, through BLM, is authorized to issue permits for the
8
grazing of livestock on public lands upon the payment . . . of reasonable fees. 43

U.S.C. 315b. However, as the statutes text specifies, the creation of a grazing
district or the issuance of a [grazing] permit . . . shall not create any right, title,
interest, or estate in or to public lands. Id. 315b (emphasis added); see also
United States v. Fuller, 409 U.S. 488, 494 (1973) (The provisions of the [TGA] . .
. make clear the congressional intent that no compensable property right be created
in the permit lands themselves as a result of the issuance of the permit.) (emphasis
added). The TGA further provides that the Secretary is authorized, in his
discretion, to . . . classify any lands . . . within a grazing district as more valuable
or suitable for any other use, 43 U.S.C. 315f (emphasis added), including use
by wild horses. 16 U.S.C. 1333(a); see also 43 C.F.R. 4710.5(a) (stating that
BLM may prohibit grazing on the public lands where necessary to protect wild
horses).
C.
The Administrative Procedure Act
The Administrative Procedure Act (APA), 5 U.S.C. 701706, provides

for judicial review of administrative agencies actions and failures to act. Pursuant
to section 706(2) of the APA, the reviewing court shall . . . hold unlawful and set
aside agency action, findings and conclusions found to be . . . arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law. Id. 706(2)(A).
Under section 706(1), the reviewing court shall . . . compel agency action
unlawfully withheld or unreasonably delayed. Id. 706(1).
II.
WILD HORSES IN NEVADA

Nevada is home to roughly half of the nations wild horses and burros. Am.
Compl. 44, ER 48. These horses and burros live in eighty-five different HMAs
throughout the state, which encompass over 14 million acres of BLM-managed
public lands. Ranchers use these same public lands to graze livestock at belowmarket, taxpayer-subsidized rates. Despite the fact that grazing permits create no
right or title to public lands, these ranchers view wild horses as unwanted
competition for the limited forage and water on public lands in Nevada. E.g., Am.
Compl. 4647, 6769, ER 5051, 5860.4
See U.S. Dept. Of Interior, BLM, Herd Area and Herd Management Area
Statistics FY 2013, at 18-22, available at
http://www.blm.gov/style/medialib/blm/wo/Planning_and_Renewable_Resources/
wild_horses_and_burros/statistics_and_maps/holding__adoption.Par.45280.File.da
t/HMA_HA%20Stats%20FY2013.pdf (describing HMAs including those in
Nevada); see also Carol Hardy Vincent, Cong. Research Serv., RS21232, Grazing
Fees: Overview And Issues at 1 (2012), available at,
https://www.fas.org/sgp/crs/misc/RS21232.pdf (noting that BLM charges belowmarket fees for grazing permits and generally spends more money subsidizing
grazing than it receives from grazing fees). See also United States v. 14.02 Acres
of Land More or Less in Fresno County, 547 F.3d 943, 955 (9th Cir. 2008) (noting
that a court may properly take judicial notice of records and reports of
administrative bodies without abusing its discretion or converting a Rule 12
motion into a motion for summary judgment).
10
Not surprisingly, Plaintiffs contend that Nevada contains too many wild
horses competing for grazing and water resources with their livestock.
Accordingly, on September 18, 2012, Plaintiff NACO sent a letter to Kenneth
Salazarthen Secretary of the Department of Interioroutlining continuing
problems, failures to act, inappropriate actions, and delays to act of Defendants and
their predecessors with respect to the [WHA]. Id. 53, ER 52. When Secretary
Salazar failed to respond to this letter for an extended period of time, on January
22, 2013 NACO sent a second letter strongly urg[ing] [his] office to take steps to
bring BLM into compliance with the provisions of the [WHA]. Id. 54, ER 53.
On April 23, 2013, Edwin Roberson, BLMs Assistant Director of
Renewable Resources and Planning, responded to NACOs letter inviting NACO
to meet with BLMs senior leadership to collaborate on viable program solutions
that would meet NACOs concerns. Id. 55, ER 5354. Almost three months
later, NACO allegedly accepted the invitation to meet with BLM, but as of the
filing of the Amended Complaint, this meeting had not yet taken place. Id. 56,
ER 54.
III.
PROCEEDINGS BELOW
On December 30, 2013, NACO filed a Complaint challenging BLMs entire

program for the management of wild horses in Nevada and broadly alleging that
BLM has failed to properly implement the WHA throughout the state. ER 74.
11
Additionally, the Complaint alleged that BLM had violated Plaintiffs due process
rights. Id. On April 2, 2014, the district court granted AWHPCs motion to
intervene, and on May 29, 2014, AWHPC filed a motion to dismiss.5 ER 7778,
MTD, AISER 738.
AWHPCs motion to dismiss detailed numerous problems with the
Complaint, explaining that it directly conflicted with the holdings of Lujan, 497
U.S. at 89194, and SUWA, 542 U.S. at 67. See MTD 824, AISER 2137.
Specifically, AWHPCs motion explained that under Lujan, federal courts may
review only final agency actions under section 706(2) of the APA, and that the
Complaint had failed to identify any such final agency action. MTD 10, AISER 22
(citing Lujan, 497 U.S. at 894). Similarly, AWHPCs motion noted that SUWA
held that pursuant to section 706(1) of the APA courts may compel only discrete,
non-discretionary agency duties, and explained that the Complaint had failed to
identify any such non-discretionary duty. Id. at 19 (citing SUWA, 542 U.S. at 64).
AWHPCs motion further explained that the Supreme Court has firmly established
that litigants may not seek wholesale improvement [of an agencys administration
of a law] by court decree, rather than in the offices of the [agency] or the halls of
AWHPC and the other Intervenor-Defendants are advocates for the preservation
and well-being of wild horses and burros. As the district court found, they have a
significant protectable interest in preserving these wild animals under the Wild
Horse Act and other federal laws and regulations. Order Granting Intervention,
April 2, 2014, Docket Entry 29, at 6, AISER 40.
12
Congress, where programmatic improvements are normally made. Id. at 1

(quoting Lujan, 497 U.S. at 891 (emphasis in original)); see also SUWA, 542 U.S.
at 6465 (reiterating this standard and explaining that it also applies to claims
under section 706(1) of the APA). Finally, AWHPC explained that the Plaintiffs
had failed to allege a viable due process claim because they failed to allege a
protected property interest, or to identify any process to which the Plaintiffs were
due, let alone any process of which they were deprived. MTD at 25, AISER 37.
Thus, AWHPC provided detailed explanations for why each claim in the
Complaint was legally deficient under all of the governing case law.6
Instead of filing a response to AWHPCs motion to dismiss, on June 5, 2014
NACO filed a motion to stay AWHPCs motion on the grounds that it intended to
file an amended complaint that would render a decision on AWHPCs motion
unnecessary. AISER 5. On June 17, 2014, NACO filed a motion to amend its
complaint, with a proposed Amended Complaint attached. ER 78. The proposed
Amended Complaint added two additional Plaintiffs but did not address any of the
AWHPC filed its motion to dismiss under Federal Rule of Civil Procedure
12(b)(1) for lack of subject matter jurisdiction, and alternatively under Federal
Rule of Civil Procedure 12(b)(6) for failure to state a claim. See MTD at 2 n.1,
AISER 14. In addition, because AWHPC had been required to file a proposed
Answer with its motion to intervene, AWHPC also made clear that, if necessary,
its motion could also be considered one for judgment on the pleadings pursuant to
Federal Rule of Civil Procedure 12(c). See id.
13
defects AWHPC had painstakingly identified in its motion to dismiss.

Consequently, on June 26, 2014 AWHPC renewed its motion to dismiss. Id.
Again, instead of filing a response to AWHPCs motion to dismiss, on July
8, 2014, NACO requested a further extension of time to respond. Id. The district
court granted that motion the next day, requiring NACO to respond to AWHPCs
motion to dismiss by August 15, 2014 and indicating that it would not allow any
further extensions of time. ER 79. In the same Order, the district court granted
NACOs motion to file its Amended Complaint on the grounds that pursuant to
Federal Rule of Civil Procedure 15(a)(1), NACO had the right to file an amended
complaint without leave of the court. Id. Nevertheless, NACO did not actually file
its Amended Complaint until July 21, 2014. Id.
Thus, by the time it actually filed its Amended Complaint, NACO had
AWHPCs motion to dismisswhich detailed the fatal defects in the original
Complaintfor nearly two months. Nevertheless, the Amended Complaint that
was finally filed merely added two more Plaintiffs and did not address any of the
numerous pleading defects that AWHPC had identified.
On the contrary, the Amended Complaint carried forward NACOs broad,
programmatic attack on BLMs entire program for the management of wild horses
in Nevada. Thus the Amended Complaint included general examples of entire
categories of alleged agency misbehavior, such as basing decisions on political
14
considerations and their own preferences, Am. Compl. 79, ER 6263; making
improper and allegedly unscientific population surveys and determinations
regarding AMLs, the presence or absence of excess horses, and whether to remove
horses, id. 3538, 41, 80, ER 4447, 63; decisions to reduce or suspend grazing
on public lands, id. 12(b), 43, ER 3031, 48; and the willful failure to sell or
destroy horses, instead sending them to long-term holding, id. 30, 62, ER 42
43, 5657. Similarly, the Amended Complaint repeated the original Complaints
request for programmatic relief, requesting a declaratory judgment declaring the
duties and responsibilities of [BLM] under the [WHA], and an injunction
requiring BLM to promptly and fully comply with all the provisions of the Act,
as well as requesting that the district court retain jurisdiction in order to monitor
and enforce [BLMs] compliance with the WHA. Am. Compl. 9394, ER 67
68. In short, the Amended Complaint repeated NACOs original invitation for the
district court to take on the role of manager of wild horses in Nevada.
On March 12, 2015, after full briefing by the parties, the district court
granted AWHPCs motion to dismiss, reasoning that the Amended Complaint
failed to identify any actions unlawfully withheld or any final agency actions that
harmed any Plaintiff, and instead brought only an impermissible programmatic
attack of the kind that was barred by Lujan. Dist. Ct. 68, ER 68. Although the
district court recognize[d] that it may be frustrating for Plaintiffs to identify final
15
agency actions for review when they are concerned with Federal Defendants
allegedly consistent, persistent, [and] significant missteps under the Wild Horse
Act, it nevertheless explained that this is the traditional, and remains the normal,
mode of operation of the courts. Dist. Ct. at 8, ER 8 (citing Lujan v. National
Wildlife Federation, 497 U.S. 871, 894 (1990)). In light of all the circumstances of
the litigation, the district court dismissed the case with prejudice.
SUMMARY OF ARGUMENT
1.
The district court correctly found that NACOs challenge was an
impermissible programmatic attack on BLMs administration of the Wild Horse

Act throughout the state of Nevada that is foreclosed by Lujan, 497 U.S. at 891
94, and, as demonstrated below, is further barred by SUWA, 542 U.S. at 6465.
Seeking nothing less than a complete overhaul and continuous oversight of BLMs
management of wild horses, NACO essentially invited the district court to supplant
BLM as the manager of wild horses throughout the state. Following clearly
applicable Supreme Court precedents barring such programmatic attacks, the
district court correctly declined NACOs invitation and dismissed the case.
2.
The district court also correctly found that NACO entirely failed to
challenge any final agency action, as required under section 706(2) of the APA
and the Supreme Courts teaching in Lujan, 497 U.S. at 891894. Although
16
NACO broadly alleged rampant violations of the WHA, it never identified a single
final agency action that has caused injury to any Plaintiff. Hence, because courts
may review only final agency actions under the APA, the district court correctly
dismissed NACOs claims under section 706(2) of the APA.
3.
The district court also properly determined that NACO wholly failed
to identify any discrete, mandatory agency action that BLM has failed to take,
which is required under section 706(1) of the APA and the Supreme Courts ruling
in SUWA, 542 U.S. at 6567. Although NACO broadly alleged widespread
failures to properly implement the WHA, NACO fatally misconstrued the WHA,
which, as the Supreme Court observed in SUWA, vests BLM with broad
statutory authority to manage wild horses, 542 U.S. at 67. Because NACO failed
to identify any non-discretionary, ministerial duty that BLM has failed to carry out,
the district court correctly dismissed NACOs claims under section 706(1) of the
APA.
4.
The district court also correctly dismissed NACOs allegation of due
process violations, which, as the district court found, was inextricably linked to its
fatally flawed APA claims. Additionally, the district court correctly found that
NACO failed to identify any protected property interest held by any Plaintiff or to
explain what process any Plaintiff was due but denied.
17
5.
Finally, although by failing to actually include an argument on this
issue NACO has waived it here, see FDIC v. Garner, 126 F.3d 1138, 1145 (9th
Cir. 1997), under the circumstances of this particular case, the district court also
properly dismissed NACOs claims with prejudice. Moreover, any amendment
would have been entirely futile because clear Supreme Court precedents bar
NACOs programmatic challenge. While NACO is free to file another case should
there come a time when it, or any other Plaintiff, is actually injured by a discrete
agency action or failure to comply with a non-discretionary duty, because neither
its original Complaint nor its Amended Complaint included any such allegations,
the district court properly dismissed this case with prejudice.
ARGUMENT
Introduction
NACO essentially argued that BLM lets wild horses run rampant throughout
Nevada in dereliction of the agencys purported duties under the WHA. E.g. Op.
Br. at 20 (arguing that BLMs putative mismanagement of wild horses impos[es]
a disproportionate share of the ecological, economic, and other impacts of excess
[horse] populations on Nevadas resources). However, because the WHA
provides no free-standing cause of action, NACO brought its claims under the
APA, claiming that it was entitled to relief under both sections 706(1) and 706(2)
of the APA. E.g., Op. Br. at 69.
18
However, as discussed more fully below, NACOs case cannot go forward

because NACO failed to bring a viable claim under either section of the APA.
Thus, under binding Supreme Court precedent, claims under section 706(2) may
proceed only where a plaintiff challenges final agency action. Lujan, 497 U.S. at
894. Similarly, claims under section 706(1) may proceed only where a plaintiff
identifies a discrete action an agency is required to take. SUWA, 542 U.S. at 64.
Because NACO failed to identify either a final agency action or any nondiscretionary duty, and instead tried to levy a broad, programmatic attack on the
way BLM manages wild horses in Nevadaa quintessential example of the type
of challenge the Supreme Court has repeatedly confirmed the judiciary has no
authority to considerthe district court properly dismissed NACOs claims.
I.
NACO MISSTATED THE STANDARD OF REVIEW.

To begin with, NACO misstated the standard of review applicable here,
asserting that [a] motion to dismiss cannot be granted unless it appears beyond a
reasonable doubt that the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief. Op. Br. at 38. In support, NACO cites Revis v.
Slocomb Industries, Inc., 765 F. Supp. 1212, 1213 (D. Del. 1991), which not only
is non-binding on this Court, but also pre-dates important, contrary Supreme Court
rulings. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v.
Iqbal, 556 U.S. 662 (2009). In reality, NACOs no set of facts language derives
19
from Conley v. Gibson, 355 U.S. 41, 4546 (1957), which, after Twombly, simply
is no longer the applicable standard. See Twombly, 550 U.S. at 56163 (noting that
this particular phrase has earned its retirement and is best forgotten).
Indeed, the Supreme Court has expressly disclaimed the notion that a
wholly conclusory statement of a claim would survive a motion to dismiss
whenever the pleadings left open a possibility that a plaintiff might later establish
some set of undisclosed facts to support recovery. Id. at 561. Unfortunately for
NACO, it entirely ignored these admonitions when drafting its two Complaints and
in its briefing to the district court and this Court, instead insisting that it was
sufficient for the Complaint to make only broad, general allegations. See Op. Br.
at 15, 18, 26 (asserting that the Complaint contained sufficient allegations because
other relevant facts could be produced later through an evidentiary showing).
Thus, it is now well established that a complaint must state enough facts to
state a claim to relief that is plausible on its face. Twombly, 550 U.S. at 570
(emphasis added); see also Iqbal, 556 U.S. at 678 (To survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.). Therefore, although courts
accept as true well-pleaded allegations of material fact, they are not obligated to
accept as true allegations that contradict . . . matters properly subject to judicial
notice, or allegations that are merely conclusory, unwarranted deductions of fact,
20
or unreasonable inferences. Daniels-Hall v. National Educ. Assn, 629 F.3d 992,

998 (9th Cir. 2010).
Moreover, because this Court reviews a motion to dismiss de novo, this
Court may affirm a district courts ruling on any proper ground, even if the
district court did not reach the issue or relied on different grounds or reasoning.
Salameh v. Tarsadia Hotel, 726 F.3d 1124, 1129 (9th Cir. 2013); see also White v.
Lee, 227 F.3d 1214, 1242 (9th Cir. 2000) (noting that courts review dismissals for
lack of subject matter jurisdiction de novo). Accordingly, this Court may affirm
the district courts ruling if it finds that the Amended Complaint fails either to
establish subject matter jurisdiction under FRCP 12(b)(1) or fails to state a claim
under FRCP 12(b)(6). See Terenkian v. Republic of Iraq, 694 F.3d 1122, 1131 (9th
Cir. 2012) (applying the Supreme Courts plausible pleading requirement to a
motion to dismiss for lack of subject matter jurisdiction; Salameh, 726 F.3d at
1129 (applying the same standard to a motion under Rule 12(b)(6)).7
Although one panel of this Court found Twombly ill-suited to application in the
constitutional standing context in response to a motion to dismiss under Rule
12(b)(1), as opposed to the 12(b)(6) context, Maya v. Centex Corp., 658 F.3d
1060, 1067 (9th Cir. 2011), this holding has no relevance here because this Court
may affirm the district courts ruling under either FRCP 12(b)(1) or FRCP
12(b)(6).
7
21
II.
THE DISTRICT COURT PROPERLY DISMISSED NACOS

CLAIMS UNDER THE APA.
A.
The District Court Correctly Found That NACOs Amended

Complaint Asserted An Impermissible Programmatic Attack
On BLMs Management Of Wild Horses In Nevada.
As the district court correctly held, NACOs argument for program-wide

changes to [BLMs] management of wild horses throughout Nevada was merely a
programmatic attack that the judiciary lacks jurisdiction to resolve under the
APA. Dist. Ct. at 68, ER 68. In Lujan the Supreme Court explained that the
APA does not allow lawsuits to seek wholesale improvement of [an
administrative] program by court decree, rather than in the offices of the [agency]
or the halls of Congress, where programmatic improvements are normally made.
497 U.S. at 891 (emphasis in original). Instead, under the APA, federal courts may
intervene in the administration of the laws only when, and to the extent that, a
specific final agency action is at issue. Id. at 894. Thus, section 706(2) of the
APA allows courts to review particular final agency actions, but does not allow
courts to conduct a generalized review of an agencys implementation of a broad
statutory mandate. See id. at 89194. Thus, the Supreme Court made clear in
Lujan that federal courts do not have jurisdiction to review generic programmatic
challenges to an agencys implementation of a statute, as opposed to a particular
final agency action. Id. Similarly, the Court confirmed in SUWA that [t]he
22
prospect of pervasive oversight by federal courts over the manner and pace of
agency compliance with [broad] congressional directives is not contemplated by
the APA. 542 U.S. at 67. Therefore, the Supreme Court has twice held that
programmatic attacks on agencies implementation of congressional mandates are
simply not justiciable under the APA.
Although NACO ignored Lujan entirely in its briefing before the district
court, its opening brief to this Court made two feeble attempts to distinguish the
Supreme Courts directly applicable holdingneither of which has any merit.
First, NACO wrongly asserted that because Lujan was before the Court on a
motion for summary judgment, its holding does not apply. Op. Br. at 3435.
However, Lujans holding that plaintiffs must identify some final agency action
in order to present a justiciable claim under the APA clearly applies at either stage
of litigation. The only significance of the stage of litigation concerns the
Plaintiffs burden to prove their claims: while Plaintiffs must certainly prove their
allegations to survive a motion for summary judgment, that obligation does not
relieve Plaintiffs of their separate duty to plead sufficiently justiciable claims to
survive a motion to dismiss. Indeed, this Court has readily applied Lujan to affirm
motions to dismiss cases. See, e.g., ONRC Action v. Bureau of Land Management,
150 F.3d 1132, 1136, 1140 (9th Cir. 1998) (affirming a dismissal for lack of
subject matter jurisdiction based on similarity to Lujan); Institute for Wildlife
23
Protection v. Norton, 205 Fed. Appx. 483, 485 (9th Cir. 2006) (holding that based
on Lujan the district court properly dismissed [certain claims] for lack of subject
matter jurisdiction because they are programmatic challenges not within the district
courts or our jurisdiction). Accordingly, NACOs attempt to distinguish Lujan
on the basis has no merit.8
NACO made a similarly meritless attempt to confine Lujan to its holding on
standing. Op. Br. at 4547. Thus, NACO has misleadingly argued that the Court
in Lujan found only that the plaintiffs there lacked standing, and that if they had
offered facts sufficient to demonstrate standing the Court would have allowed them
to bring a programmatic challenge. Id. NACO further accused the district court in
the present case of inappropriately interpreting Lujan to take a rigid, almost
mathematical approach to the justiciability of claims, Id. at 3233; id. at 42,
(arguing that the district court inappropriately based its judgment only on the fact
that NACO made allegations about more than one or a few improper actions).
While Lujan did conclude that the plaintiffs in that case lacked standing,
Lujan, 497 U.S. at 88289, NACO entirely ignored the relevant portion of Lujan in
By failing to address the issue before the district court, NACO has arguably
waived any argument on Lujans applicability. See Dream Palace v. County of
Maricopa, 384 F.3d 990, 1005 (9th Cir. 2003) (Ordinarily, we decline to consider
arguments raised for the first time on appeal.). However, because AWHPC
discussed Lujan extensively before the district court, and because NACOs attempt
to distinguish Lujan is so utterly lacking in merit, AWHPC is untroubled by the
Court considering this issue.
24
which the Court also concluded that the judiciary lacks authority to review broad
programmatic challenges, id. at 89094. In fact, the Supreme Court made quite
clear that [i]t is impossible that the [standing] affidavits would suffice to allow a
litigant to challenge an entire agency program. Id. at 890 (emphasis added). The
Court further explained that it is at least entirely certain that the flaws in [an]
entire program . . . cannot be laid before the courts for wholesale correction under
the APA. Id. at 893 (emphasis added). This holding, distinct from the Courts
holding about standing, is directly applicable here. Accordingly, NACOs attempt
to distinguish Lujan must fail, and this Court should have no trouble affirming the
district courts decision that Lujan bars NACOs programmatic challenge.
Indeed, here, the district court properly found that NACOs Amended
Complaint is no different than the programmatic challenge at issue in Lujan . . . .
Dist. Ct. at 7, ER 7. Thus, like NACO, the plaintiffs in Lujan alleged that
violation[s] of the law [were] rampant in BLMs administration of federal law.
Lujan, 497 U.S. at 891. And, also like NACO, the plaintiffs in Lujan listed
examples of allegedly rampant legal violations. Id. However, the Supreme Court
explained that federal courts may intervene in the administration of the laws only
when, and to the extent that, a specific final agency action is at issue. Id. at 894
(emphasis added). Thus, the Court held that plaintiffs cannot seek wholesale
improvement of [a] program by court decree, rather than in the offices of the
25
[agency] or the halls of Congress, where programmatic improvements are normally

made. Id. at 891 (emphasis in original).
Indeed, following Lujan, the Court of Appeals for the D.C. Circuit rejected a
programmatic challenge to BLMs administration of the WHA for failure to
identify justiciable final agency action. Fund for Animals, Inc. v. U.S. Bureau of
Land Management, 460 F.3d 13, 1819 (D.C. Cir. 2006). There, a complaint from
wild horse advocates challenged BLMs general policies for carrying out its wild
horse and burro management duties through the removal of wild horses from
public lands. While noting that the plaintiff t[ook] exception to several of the
Bureaus policies for carrying out its wild horse and burro management duties, the
court held that [t]he federal courts are not authorized to review agency policy
choices in the abstract, absent a final agency action. Id. at 1822 (citing Lujan,
497 U.S. at 891, and SUWA, 542 U.S. at 71) (emphasis added).9
In each of these cases, the plaintiffs brought challenges to an agencys
general implementation of a statute without challenging any specific final agency
action. Here too, NACO failed to identify any specific final agency action that
9
Similarly, the district court for the District of Nevada also recently rejected a
challenge to BLMs implementation of the WHA for lack of subject matter
jurisdiction because the plaintiff there also failed to identify any final agency
action. See Leigh v. Jewell, No. 3:11-cv-00608, 2014 WL 31675, at *1, 4 (D. Nev.
Jan. 3, 2014) (holding that a claim alleging that BLM conduct[ed] roundups of
excess wild horses in an inhumane manner was not a final agency action and thus
the court lack[ed] subject matter jurisdiction).
26
harmed any of the Plaintiffs, instead challenging nearly every policy and practice
that BLM uses to implement the WHA throughout Nevada.
The fact that the Amended Complaint challenged BLMs implementation of
the WHA throughout Nevada, and without any more specific geographic focus,
illustrates its impermissible programmatic nature. Thus, Nevada contains 85 herd
management areas, which are subject to distinct agency actions,10 with BLM
setting management objectives for HMAs in applicable Resource Management
Plans (RMPs) and Herd Management Area Plans (HMAPs). Although the
issuance of these plans constitutes final agency action, as do many site-specific
actions taken pursuant to them, NACOs Amended Complaint did not even
mention, much less challenge, a single RMP or HMAPeven after AWHPC
detailed this problem in its original motion to dismiss. MTD 824, AISER 2036.
Instead, as the district court correctly noted, rather than identify discrete
agency actions to challenge, the [Amended Complaint] cite[d] general examples to
illustrate the need for broad judicial oversight. Dist. Ct. at 6, ER 6. Moreover, as
explained supra, these general examples addressed entire categories of alleged
agency misbehavior, such as basing decisions on political considerations and their
10
U.S. Dept. Of Interior, BLM, Herd Area and Herd Management Area Statistics
FY 2013, at 18-22, available at
http://www.blm.gov/pgdata/etc/medialib/blm/wo/Planning_and_Renewable_Resou
rces/wild_horses_and_burros/statistics_and_maps/holding__adoption.Par.45280.Fi
le.dat/HMA_HA%20Stats%20FY2013.pdf.
27
own preferences, Am. Compl. 79, ER 6263; making improper and allegedly
unscientific population surveys and determinations regarding AMLs, the
presence or absence of excess horses, and whether to remove horses, id. 3538,
41, 80, ER 4447, 63; decisions to reduce or suspend grazing on public lands, id.
12(b), 43, ER 3031, 48; and the willful failure to sell or destroy horses,
instead sending them to long-term holding, id. 30, 62, ER 4243, 5657. As the
district court correctly noted, however, the Amended Complaint did not identify or
challenge any particular agency action, but instead provided general examples of
an ostensible need for a complete judicial overhaul of BLMs administration of the
WHA throughout Nevada. Dist Ct. at 68, ER 68.
The district court also correctly observed that NACOs requested relief
further supports [its] finding that the [Amended Complaint] fail[ed] to identify
discrete agency actions . . . . Id. at 7, ER 7. NACO essentially ask[ed] the
[district court] to compel compliance with the [WHA] and refashion [BLMs]
management of wild horses and burros in Nevada. Id. Specifically, the Amended
Complaint requested that the court issue a declaratory judgment explaining what
actions the WHA requires BLM to take, issue an injunction requiring BLM to take
those actions, and maintain jurisdiction to monitor and enforce compliance with
the courts directives. Am. Compl. 9395, ER 6768. In short, NACO invited
the district court to completely take over the management of wild horses in
28
Nevada, as well as the management of wild horses in holding. However, because

federal courts are not the proper forum for such wholesale improvement of the
administrative state, Lujan, 497 U.S. at 891, the district court correctly declined
that invitation and dismissed NACOs programmatic challenge under section
706(2) of the APA. Dist. Ct. at 8, ER 8.
Similarly, because [t]he prospect of pervasive oversight by federal courts
over the manner and pace of agency compliance with [broad] congressional
directives is not contemplated by the APA, SUWA, 542 U.S. at 67, the district
court correctly dismissed NACOs claims under section 706(1) of the APA. Dist.
Ct. at 8, ER 8. As discussed supra and more fully below, a claim under section
706(1) may proceed only where a plaintiff asserts that an agency failed to take a
discrete agency action that it is required to take. SUWA, 542 U.S. at 64
(emphasis in original). A 706(1) claim may not seek a general order[] compelling
compliance with [a] broad statutory mandate . . . . Id. at 6667. Moreover, the
Supreme Court even identified the Wild Horse Act as a paradigmatic example of
precisely the kind of broad statutory mandate that cannot be compelled under the
APA. Id.11
11
NACO dismissively described SUWAs discussion of the WHA as mere dicta.

Op. Br. at 27 n.5. However, because the Courts discussion of the WHA was
central to the rationale upon which the Court based [its] result, its reasoning is
clearly binding upon this Court. See Seminole Tribe of Fla. v. Florida, 517 U.S.
44, 6667 (1996). Moreover, even if NACO were correct, [c]arefully considered
29
The Supreme Courts reasoning for this limitation on the APA is particularly
applicable here.
The principal purpose of the APA limitations . . . is to protect agencies
from undue judicial interference with their lawful discretion, and to
avoid judicial entanglement in abstract policy disagreements which
courts lack both expertise and information to resolve. If courts were
empowered to enter general orders compelling compliance with broad
statutory mandates, they would necessarily be empowered, as well, to
determine whether compliance was achieved which would mean
that it would ultimately become the task of the supervising court,
rather than the agency, to work out compliance with the broad
statutory mandate, injecting the judge into day-to-day agency
management.
Id. at 6667 (emphasis added). Placing the judiciary in charge of federal resource
management would require judges to supplant expert agencies and spend scarce
judicial resources on day-to-day administration of statutesprecisely what NACO
asked the district court to do here.12
language of the Supreme Court, even if technically dictum, generally must be
treated as authoritative. United States v. Oakar, 111 F.3d 146, 153 (D.C. Cir.
1997); McCalla v. Royal MacCabees Life Ins. Co., 369 F.3d 1128, 1132 (9th Cir.
2004) (We do not treat considered dicta from the Supreme Court lightly.).
NACOs attempt to limit SUWAs application by substituting NACOs own
language for that of the Supreme Court, Op. Br. at 4850 (paraphrasing SUWA
colloquially), is unavailing. The Court clearly held that a claim under 706(1)
can proceed only where a plaintiff asserts that an agency failed to take a discrete
agency action that it is required to take. SUWA, 542 U.S. at 64 (emphasis in
original). It further clarified that [t]he limitation to discrete agency action
precludes . . . broad programmatic attack[s] . . . [and] [t]he limitation to required
agency action rules out judicial direction of even discrete agency action that is not
demanded by law. Id. at 6465 (emphasis in original).
12
30
Nevertheless, despite the Supreme Courts pellucid explanation that [t]he

prospect of pervasive oversight by federal courts over the manner and pace of
agency compliance with [broad] congressional directives is not contemplated by
the APA, id. at 67and despite the Court expressly identifying the WHA as
featuring a broad directive the courts may not oversee, id.NACO requested that
the district court do exactly that. Specifically, the Amended Complaint asked the
district court to enter a judgment declaring the duties and responsibilities of
Defendants, to issue an injunction requiring BLM to promptly and fully comply
with all the provisions of the Act, to establish a schedule for BLMs
compliance, and to retain jurisdiction to monitor and enforce compliance. Am.
Compl. 9395, ER 6768. In short, NACO invited the district court to do
precisely what the Supreme Court said courts should not do under the APA, Lujan,
497 U.S. at 89194; SUWA, 542 U.S. at 6667namely, to assume responsibility
for, and to directly and intensively oversee, BLMs management of wild horses
throughout Nevada. The district court correctly declined and dismissed NACOs
broad, programmatic attack.
B.
The District Court Correctly Dismissed NACOs Claims

Under Section 706(2) Of The APA Because NACO Failed To
Identify Any Justiciable Final Agency Action.
NACO also failed to allege any specific final agency action that lends
itself to judicial review under Section 706(2) of the APA. Thus, the APA defines
31
the term agency action as the whole or part of an agency rule, order, license,
sanction, relief, or the equivalent or denial thereof, or failure to act. 5 U.S.C.
551(13). Here, NACO failed to point to any such final agency action that has
caused the Plaintiffs any specific harm.
1. NACOs examples do not satisfy the requirement for a
final agency action under 706(2).
Although the Amended Complaint offered examples of agency actions that
allegedly support NACOs claim of rampant violations of the WHA, such
examples do not render NACOs broad, programmatic attack justiciable. Indeed,
the Supreme Court in Lujan was entirely certain that the flaws in the entire
programconsisting principally of the many individual actions referenced in the
complaint, and presumably actions yet to be taken as wellcannot be laid before
the courts for wholesale correction under the APA . . . . 497 U.S. at 893
(emphasis added). Similarly, this Court has held that the mere fact that a plaintiff
has identified site-specific [actions] in its pleadings does not permit a
programmatic challenge. Sierra Forest Legacy v. Sherman, 646 F.3d 1161, 1196
(9th Cir. 2011); see also Sierra Club v. Peterson, 228 F.3d 559, 567 (5th Cir. 2000)
(en banc) (finding that even identif[ying] specific allegedly improper final agency
actions within [a] program does not render a programmatic challenge justiciable)
(emphasis added). Thus, it is well settled that a programmatic challenge does not
32
become justiciable merely because a pleading contains examples of allegedly

unlawful agency actions.13
In any event, the district court correctly found that none of the examples in
the Amended Complaint actually constitutes final agency action. As discussed
supra, the APA allows federal courts to review only final agency action. Lujan,
497 U.S. at 882; San Luis Unit Food Producers v. United States, 709 F.3d 798, 801
(9th Cir. 2013), cert. denied, 134 S. Ct. 439 (2013). However, many of NACOs
allegations are untethered to any agency action at all. E.g. Am. Compl. 51,
59, ER 5152, 5556 (challenging BLMs statements on its website that it does not
slaughter horses and BLMs attempts to control wild horse populations without
removing them from the range); see also Op. Br. at 24 (citing a BLM website to
argue that the agency admits it sends horses to holding facilities, that numerous
horses are above AML on the range, and that BLM has promised to improve its
methods for counting horses).
NACOs Amended Complaint made quite clear that it listed various actions as
examples of BLMs allegedly unlawful management of wild horses throughout
Nevada. See Am. Compl. 12(a), ER 2930 (listing example[s] to document . .
. problems and failure to manage the animals as required by the Act), id. 29, ER
4142 (listing example[s] of statutory duties that BLM allegedly ignore[s] in
practice); id. 46, ER 50 (offering BLMs order to remove livestock from one
area [a]s just one example of BLM . . . violating multiple use principles); id.
51, ER 5152 (offering BLMs statement on its website that it does not slaughter
horses as an example of the agencys failing to comply with congressional
mandates).
13
33
Further, those allegations in the Amended Complaint that do relate to some

type of agency action fail to identify any final agency action that is justiciable
under the APA. First, despite complaining generally of BLMs failure to set
AMLs properly or scientifically, Am. Compl. 4041, ER 4647, NACO never
identifies or objects to a single AML determination, nor explains how any AML
determination has allegedly harmed any of the Plaintiffs in this case. Likewise,
allegations about BLMs allegedly unscientific and unlawful methods for
establishing AMLs, making excess determinations, or determining what constitutes
a thriving natural ecological balance are not justiciable because they are not
tethered to any specific final agency action that allegedly harmed any of the
Plaintiffs. While the RMPs or HMAPs that BLM uses to establish AMLs may
themselves constitute final agency actions, the Amended Complaint failed to
identify a single such decision anywhere in its 57 pages.
Similarly, the Amended Complaints challenge to the methodologies
employed by BLM when making excess determinations failed to state a
justiciable claim because the Amended Complaint failed to identify even one
allegedly unlawful excess determination that harmed any Plaintiff. E.g. Am.
Compl. 80.14
NACOs cursory argument that the Amended Complaint did identify

determinations that AMLs had been exceeded, and [instances in which BLM] had
failed to remove excess animals, Op. Br. at 7, cannot withstand scrutiny. The
14
34
NACOs argument that BLM unscientifically determines what constitutes a

thriving natural balance, id., not only misquotes the statute (which mandates a
thriving natural ecological balance, 16 U.S.C. 1333(a)) but also ignores the
fact that the Supreme Court has found that the judiciary cannot compel BLM to
comply with this particular broad statutory mandate[]. SUWA, 542 U.S. at 66
67; see also Fund for Animals, 460 F.3d at 21. Moreover, the Amended Complaint
does not identify any particular action that BLM took that allegedly failed to
achieve this broad statutory goal.
Equally unavailing is NACOs challenge to BLMs maintenance in longterm storage of wild horses removed from various western states. E.g., Am.
Compl. 3, ER 17 (alleging illegal and improper . . . stockpiling of horses and
burros in holding areas). NACO did notand could notchallenge BLMs
decades-old decision to utilize long-term and short-term holding facilities for wild
horses removed from public lands, because the six-year statute of limitations for
such a challenge has long since expired. See 28 U.S.C. 2401(a) (establishing sixAmended Complaint never described even one actual excess determination, which
(as explained above) is a statutory prerequisite to removal of excess horses. 16
U.S.C. 1333(b)(2); see also Am. Compl. 12(a)(iv), ER 30 (describing a letter
from BLM but no excess determination); id. 12(b), ER 3031 (describing a
request to remove horses but no excess determination); id. 33, ER 43 (stating that
BLM on occasion failed to remove horses from private lands but identifying
only one case from 1986); id. 43, ER 43 (describing a report by the Office of the
Inspector General); id. 46, ER 50 (describing a failure to remove horses but no
excess determination); id. 71, ER 60 (noting that horses were removed).
35
year statute of limitations for APA claims); S. Rep. No. 101-534, at 1 (1990)
(Congress expressing continued support for holding facilities as a method of
removing unadopted wild horses and burros). Moreover, the Amended Complaint
did not identify or challenge a single individual roundup that sent horses to a
holding facility. 15
Similarly, NACO failed to identify any justiciable final agency action by
alleging that BLM unlawfully refuses to remove excess wild horses from public
lands while requiring ranchers and other users to reduce or cease their use of public
lands. E.g., Am. Compl. 94(f), ER 68 (asking the district court to order BLM to
cease favoring horses and burros, particularly excess animals, over . . . ranchers).
As explained supra, to close appropriate areas of the public lands to grazing use
when necessary to provide habitat for wild horses or burros, BLM must issue a
formal Notice of Closure. 43 C.F.R. 4710.5. However, the Amended
Complaint did not identify any such notice of closure, nor did it allege that BLM
violated its regulations by failing to issue a notice of closure when demanding that
ranchers cease grazing in certain areas. Indeed, the Amended Complaint never
NACO has also wholly failed to allege that BLMs long-term holding of wild
horses causes any concrete or particularized injury to any Plaintiff. NACO does
state that long-term holding occurs at considerable public expense, Op. Br. at 16,
but fails to explain how general BLM expenditures could harm any of the
Plaintiffs. Accordingly, NACO has failed to allege standing to bring this claim.
See Lujan v. Defenders of Wildlife, 504 U.S. 555, 56061 (1992).
15
36
even mentioned the term notice of closureall of which was also explained in
AWHPCs May 29, 2014 motion to dismiss. MTD 1318, AISER 2530.
Instead, the Amended Complaint identified BLMs demand[] that all
livestock be removed from specified allotments in an area known as the Diamond
Complex in Nevada as just one example of BLMs alleged violation of
multiple-use principles. Am. Compl. 46, ER 50. NACOs opening brief
similarly asserted that reducing Crawfords AUMs and ordering the removal of
cattle from certain public lands constituted final agency action. Op. Br. at 53.
However, the Amended Complaint did not identify these demand[s] as any
particular type of agency action, much less allege that they are justiciable final
agency actions. Nor, importantly, did the Amended Complaint seek any relief
regarding these demands. See Am. Compl. 9395, ER 6768. Thus, the
Amended Complaint failed to identify any final agency action regarding closure of
public lands to grazing. See also Fund for Animals v. U.S. Bureau of Land
Management, 357 F. Supp. 2d 225, 229 n.6 (D.D.C. 2004), affd 460 F.3d 13 (D.C.
Cir. 2006) (noting that the failure to request relief from a particular action suggests
that a complaint is merely using that action as an example of an agencys
implementation of a program).
37
2. NACO cannot rely on a future evidentiary proceeding

to satisfy the requirements of 706(2).
NACO has now conceded to this Court that its Amended Complaint did not
identify final agency actions, asserting that such actions would most appropriately
be specified as part of a[ future] evidentiary showing. Op. Br. at 15. For
example, NACO conceded that [t]he [Amended Complaint] did not describe each
and every AML, but instead planned [] to provide that information upon an
evidentiary showing. Id. at 1819. NACO made a similar argument about its
challenge regarding a discrete number of agreements and inventories. Id. at 15.16
However, NACOs reliance on some future evidentiary showing suffers
from two fatal defects. First, the Complaint itself must allege sufficient facts to
state a plausible claim, which in the context of section 706(2) requires sufficient
facts to plausibly identify a justiciable final agency action. See Twombly, 550
U.S. at 570; see also Zixiang Li v. Kerry, 710 F.3d 995, 10001004 (9th Cir. 2013)
(applying Twombly to APA claims). Reliance on some future unspecified
evidentiary showing simply fails to meet this rather modest burden.
Presumably, this discrete number of agreements includes the Herd

Management Area Agreements to which NACO briefly alludes. Op. Br. at 9.
This passing reference is the first time this term has seen any use in this litigation.
Because the Amended Complaint nowhere mentioned Herd Management Area
Agreements, this Court should have little trouble finding that NACO never
identified any such agreement as a final agency action subject to judicial review.
16
38
Second, reliance on some future evidentiary showing fundamentally

misconceives the nature of judicial review of final agency action under the APA.
Thus, courts review agency actions based on an administrative record consisting of
the information that was before the agency at the time it made the decision under
review. See 5 U.S.C. 706(2); see also Florida Power & Light Co. v. Lorion, 470
U.S. 729, 74344 (1985) (The focal point for judicial review should be the
administrative record already in existence, not some new record made initially in
the reviewing court.). Therefore, parties simply do not have opportunities to
request or engage in any evidentiary showing as NACO clearly contemplates.
Accordingly, NACOs reliance on some future evidentiary showing to meet its
pleading burden here is completely misguided.
C.
The District Court Properly Dismissed NACOs Claims

Under Section 706(1) Of The APA Because NACO Failed To
Identify Any Discrete, Non-Discretionary Action That The
Judiciary Has Authority To Compel.
Just as NACO disregarded the Supreme Courts holding in SUWA by asking

the district court to supplant BLM as the manager of wild horses in Nevada,
NACOs various specific requests for judicial interference also run afoul of SUWA.
As the Court held in that case, the APA empowers a court only to compel an
agency to perform a ministerial or non-discretionary act. SUWA, 542 U.S. at 64
(emphasis added). Accordingly, if an agency has discretion over whether to take
39
an action, courts may not compel it. San Luis Unit Food Producers 709 F.3d at
803; Willow Creek Ecology v. U.S. Forest Service, 225 F. Supp. 2d 1312, 1317 (D.
Utah 2002).
Therefore, in light of SUWA, NACOs attempt to compel BLM to remove
wild horses from the public range in Nevada is simply not justiciable. As
explained supra, and as the Supreme Court itself observed in SUWA, 542 U.S. at
67, the WHA vests BLM with extensive discretion over whether and how to
determine that excess horses exist or must be removed from such public lands
as courts have consistently found for nearly 40 years. See 16 U.S.C. 1333(b)(2);
In Def. of Animals v. U.S. Dept. of Interior, 751 F.3d 1054, 1065 (9th Cir. 2014)
(confirming the discretion which courts have recognized that BLM has to remove
excess animals from an HMA); Am. Horse Protection Assn, Inc. v. Watt, 694
F.2d 1310, 1318 (D.C. Cir. 1982) (noting that BLM may make an excess
determination on the basis of whatever information [it] has at the time)
(emphasis in original); Am. Horse Protection Assn, Inc. v. Frizzell, 403 F. Supp.
1206, 1217 (D. Nev. 1975) (noting that the WHA gives a great deal of discretion
to BLM).17
This Court recently confirmed the discretion which courts have recognized that
BLM has to remove excess animals from an HMA. In Def. of Animals, 751 F.3d
at 1065. There, the Court affirmed BLMs decision to remove horses based on
findings that horse populations exceeded AMLs and that horses were causing
damage to the range, id. at 1063, but this Court certainly did not decide that BLM
17
40
Therefore, because BLM has discretion with regard to excess

determinationsa statutory prerequisite to actually removing horses from the
public range, 16 U.S.C. 1333(b)(2)a lawsuit may not compel BLM to make an
excess determination or remove horses from an HMA. Thus, NACOs attempt to
invoke section 706(1) of the APA to compel BLM to make excess determinations
must fail. See Amended Complaint 94, ER 6768. Similarly, NACOs attempt
to compel BLM to actually remove horses from HMAs in Nevada must fail
because the Amended Complaint did not identify a single excess determination on
which BLM failed to act.
Further, NACO repeatedly misrepresented the nature of BLMs authority in
making such determinations. See Op. Br. at 14 (asserting that facts mandated the
removal of excess horses); id. at 18 (contending that it has alleged justiciable
action because the number of animals ha[s] exceeded AMLs.); id. at 55. As
explained supra, the statute makes clear that before removing horses from public
lands, BLM must first determine that excess horses exist, and that removal is
necessary to achieve a thriving natural ecological balance. 16 U.S.C.
must make an excess determination or remove horses on the basis of AMLs alone.
Instead, this Court affirmed BLMs exercise of discretion in deciding to remove
horses based on its determination that [an] overpopulation of wild horses and
burros threatened the natural ecological balance on the HMA. Id. at 1066
(emphasis added)
41
1333(b)(2). NACO incorrectly construes this provision as establishing a

mandatory duty. Op. Br. at 14.
However, contrary to NACOs self-serving interpretation, the WHA makes
clear that excess determinations are discretionary. Thus, the WHA requires BLM
to make excess determinations using a wide variety of current information, and not
merely on the basis of whether a particular wild horse population has exceeded a
specific AML. 16 U.S.C. 1333(b)(2). Requiring BLM to remove horses on the
basis of nothing more than an AML (which are often outdated, having been
established in RMPs that were issued decades ago) would contradict Congresss
clear intent that BLM exercise discretion in making excess determinations on the
basis of all the best information currently available, see, e.g., 16 U.S.C.
1333(b)(1) (requiring a current inventory as one basis for excess determinations),
and as necessary to achieve a thriving natural ecological balance, id.
1333(b)(2); see also id. (allowing BLM to make this determination on the basis of
all information currently available).
Indeed, Congress expressly granted BLM discretion to decide what
information is relevant by allowing consideration of such additional information
as becomes available from time to time. Id. (emphasis added). Additionally,
BLM has discretion to help achieve a thriving natural ecological balance using
other tools at its disposal, such as the reduction or elimination of livestock grazing.
42
See, e.g., 43 C.F.R. 4710.5(a) (noting that BLM may close areas on public lands
to livestock grazing). Similarly, the WHA imposes no duty to make excess
determinations merely because members of the public provide information about
horse populations.
Finally, the WHA does not require BLM to make excess determinations
pursuant to any particular timeline, or even at all. See 16 U.S.C. 1333(b)(2).
Therefore, under the reasoning in SUWA, such broad discretionary authority
prevents any litigant from suing to compel BLM to make an excess determination
in the first instance. Accordingly, NACOs attempt to create a ministerial duty
from statutory language rife with clear grants of discretion must fail.18
Nor does BLM have any non-discretionary, ministerial duty to cease sending
horses to long-term holding facilities, to set AMLs according to any particular
formula, or to inventory wild horse populations on any particular scheduleall of
which NACOs Amended Complaint attempted to compel. See Am. Compl.
4041, 94, ER 4647, 6768. Instead, as the WHA itself makes clear, BLM has
broad statutory authority to manage wild free-roaming horses and burros in a
manner that is designed to achieve and maintain a thriving natural ecological
18
That BLM must also prepare a NEPA analysis when making an excess
determination further demonstrates the agencys discretion in this regard, because
such analyses are not required where agencies lack discretion. See Dept of
Transp. v. Pub. Citizen, 541 U.S. 752, 770 (2004).
43
balance on the public lands. 16 U.S.C. 1333(a); see also SUWA, 542 U.S. at 67
(citing this language as a broad statutory mandate with which the judiciary may
not compel compliance).19
Equally unavailing is NACOs attempt to compel BLM to set proper
AMLs. Am. Compl. 4041, ER 4647. The WHA clearly gives BLM
discretion over how to set AMLs. See, e.g., In Defense of Animals, 909 F. Supp.
2d at 119091 (This discretion extends to BLM officials being allowed to develop
their own methodology for computing AMLs), affd 751 F.3d 1054 (9th Cir.
2014); see also cf. Stout v. U.S. Forest Service, 869 F. Supp. 2d 1271, 1278 (D. Or.
2012) (The Forest Service has significant discretion in setting AMLs.). Such
discretion precludes a claim under section 706(1) of the APA to compel BLM to
set AMLs in any particular manner.
19
NACO also significantly misrepresents facts essential to its claims. Thus,

NACO alleges that BLM has failed to make horses available for adoption or sale,
or to kill them, instead of sending them to long-term holding facilities, see, e.g.,
Am. Compl. 94(c), ER 67, but NACO disregards the fact that Congress has for
many years prohibited the destruction or sale for slaughter of healthy wild horses.
Consolidated Appropriations Act, 2014, Pub. L. No. 113-76, 128 Stat. 5 (2014); In
Def. of Animals, 751 F.3d at 1066 n.20. Similarly, NACO disregards the fact that
BLM regularly makes horses from Nevada available for adoption and sale. See
BLM, National Wild Horse and Burro Adoption Schedule,
http://www.blm.gov/wo/st/en/prog/whbprogram/adoption_program/schedule.html;
BLM, Wild Horse and Burro Sale Program,
http://www.blm.gov/wo/st/en/prog/whbprogram/adoption_program/sales.html.
This Court should not give any credence to any of NACOs allegations that
contradict government publications properly subject to judicial notice. See
Daniels-Hall, 629 F.3d at 998.
44
Similarly, BLMs discretion over wild horse inventories prevents a court

from establishing a schedule or methodology for inventories, as NACO also
requests. See Am. Compl. 94, ER 6768. Indeed, NACO asked the district court
to order BLM to inventory wild horses at least every two months using a particular
methodology. Id. However, neither the WHA nor its implementing regulations
establish any mandatory time-frame for wild horse inventories or any particular
methodology the agency must employ. This silence means the agency has
discretion over when and how to conduct inventories. See SUWA, 542 U.S. at 66
(noting that statutory goals that are mandatory as to the object to be achieved but
leave the agency with discretion in deciding how to achieve those goals cannot
support a claim under section 706(1) of the APA); San Luis Unit Food Producers,
709 F.3d at 803. Thus, a court may not order BLM to conduct inventories in any
particular way or on any particular schedule. SUWA, 542 U.S. at 66.
NACOs allegations regarding the removal of wild horses from private land
owned by Crawford Cattle must also fail. Putting aside whether the language of
section 4 of the WHA imposes the type of non-discretionary, ministerial duty that
SUWA requires, NACO failed to allege the facts that could give rise to a claim
under that section. Thus, the WHA and the agencys implementing regulations
require that if a landowner provides written notice to BLM of wild horses that
have strayed onto its private lands, the agency shall arrange to have the animals
45
removed, 16 U.S.C. 1334 (emphasis added), as soon as practicable. 43

C.F.R. 4720.2-1. However, neither the law nor the regulation imposes any
deadline.20
In any event, despite the fact that NACO told this Court that BLM failed to
respond to requests by appellant Crawford Cattle to remove stray wild horses from
Crawfords private property, Op. Br. at 22, NACOs Amended Complaint did not
allege that Crawford Cattle made any such a request. Instead, NACO alleged only
that the Nevada First Corporationa different entity that had previously owned
Crawfords fee lands and that has never been a party to this litigationsent letters
to BLM in 2000 and 2002 requesting removal of stray wild horses from private
lands. Am. Compl. 12, ER 2832. Therefore, the Complaint failed to allege
even the most rudimentary facts that would give rise to a Section 4 claim under the
Act. 21
20
Although the Ninth Circuit once construed the statute as imposing a ministerial
duty, Fallini v. Hodel, 783 F.2d 1343, 1345 (9th Cir. 1986), that case was decided
18 years before the Supreme Court decided SUWA, calling Fallinis ongoing
validity into question. See SUWA, 542 U.S. at 65 (explaining that when an
agency is compelled by law to act within a certain time period . . . a court can
compel the agency to act . . . .) (emphasis added).
21
While the Amended Complaint stated that Crawford Cattle acquired Nevada
First Corporations private lands in early 2014, Am. Compl. 12, it never
alleged that Crawford Cattle itself ever made any written request thereafter to
BLM to remove stray wild horses from this land, and this Court has no duty to
assume that Nevada First Corporations 2000 and 2002 requests to BLM somehow
apply to a different owner of the land twelve to fourteen years later. See Twombly,
46
Most crucially, NACO failed to ask the district court for the only possibly
available relief. Thus, NACO specifically listed actions it requested the district
court to order, but focused exclusively on public lands and never mentioned
removal of horses from any private lands. Am. Compl. 94(a)(f), ER 6768.
Indeed, partly because NACOs requested remedy essentially ask[ed] the [district
court] to compel compliance with the [WHA] and refashion [BLMs] management
of wild horses and burros in Nevada, Dist. Ct. at 7, ER 7, the district court
correctly found that the allegation about Crawfords property was merely one of
several examples to illustrate the need for broad judicial oversight. Id. at 6; see
also supra at 3233 (explaining in detail why mere examples do not render a
programmatic attack justiciable). Thus, any argument by NACO that it sufficiently
alleged a violation of section 4 of the WHA must also fail.22
550 U.S. at 561 (a claim is not plausible merely because it le[aves] open a
possibility that a plaintiff might later establish some set of undisclosed facts that
would give rise to a viable claim); Daniels-Hall, 629 F.3d at 998 (explaining that
courts have no duty to accept as true unwarranted deductions of fact, or
unreasonable inferences).
22
As mentioned earlier, affirming the district court would not necessarily preclude
Crawford Cattle from suing BLM to compel removal of wild horses from its
private lands, assuming the facts warrant such a request. Dismissal of the
Amended Complaint with prejudice precludes only the resurrection of NACOs
impermissible programmatic challenge to BLMs administration of the WHA in
Nevada.
47
For these reasons, the Amended Complaint failed to identify any action a
court could compel. Accordingly, the district court properly dismissed NACOs
claims under section 706(1) of the APA.
III.
THE DISTRICT COURT PROPERLY DISMISSED PLAINTIFFS

DUE PROCESS CLAIM.
Although NACO suggested that the district court struggle[d] with

NACOs due process allegations, Op. Br. at 9, this is simply not true. The district
court had no trouble dismissing NACOs allegation of a violation of due process
rights for two independent reasons, both of which are completely valid.
First, the district court correctly held that NACOs due process claim must
be dismissed because it was inextricably linked to APA claims over which the
court lacked jurisdiction. Dist. Ct. at 9, ER 9. In particular, the Amended
Complaint alleged that BLM violated Plaintiffs due process rights in that
Defendants failed to follow their own procedures contained in both the [WHA] and
in 43 C.F.R. Part 4700. Id. Tellingly, NACO never made a free-standing claim
of any violation of due process rights. Rather, as the district court noted, NACOs
briefing confirmed that its due process claim depended on the viability of the claim
that BLM had acted arbitrarily and capriciously in violation of the APA. Id. at 9,
ER 9. Indeed, NACOs only argument to the district court in support of its due
process claim was based on its claims of arbitrary and capricious actions and
48
failures to act in violation of the APA. NACOs opening brief to this Court offers
further confirmation of this unassailable fact by stating that [t]his case . . . seeks
relief pursuant to the [APA]. Op. Br. at 3. Thus, because NACOs APA claims
were defective, the district court was correct to find that NACOs inextricably
intertwined due process claim must also fail.
Second, the district court correctly held that the Amended Complaint failed
to identify any protected property interest or any process the Plaintiffs were due
but denied. However, as the Supreme Court has explained, the first inquiry in
every due process challenge is whether the plaintiff has been deprived of a
protected interest in property. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40,
59 (1999). Here the Amended Complaint did not even attempt to identify a
property interest that BLM ostensibly violatedindeed, to the extent it complained
of impairment of Plaintiffs grazing privileges, as explained supra, the Taylor
Grazing Act itself makes clear that such privileges do not create any such property
right. 43 U.S.C. 315b.23
23
Similarly, state-based water rights cannot serve as a protected property interest

to prevent interference with grazing on public lands. Colvin Cattle Co. v. United
States, 468 F.3d 803, 80609 (Fed. Cir. 2006) (holding that no governmental
action restricting [the] ability to graze on federal land can affect [] water rights in a
manner cognizable under the Fifth Amendment and that an argument that the
governments alleged failure to prevent . . . wild horses from infringing on its
water rights constitutes a taking is also without merit). In any event, because
NACO also did not attempt to articulate any protected property interest in its brief
to this Court, it has now waived this line of argument, and may not attempt to
49
Finally, to the extent the Amended Complaint complained of damage to the

range from wild horses, NACOs due process claim must also fail because the
government is simply not responsible for property damage from wild animals.
E.g., Am. Compl. 12(a), ER 2930 (complaining that private land had been
damaged by excessive horse use and describing damage to water rights and
vegetation from horses). Of the courts that have considered whether damage to
private property by protected wildlife constitutes a taking, the clear majority have
held that it does not and that the government thus does not owe compensation.
Mountain States Legal Found. v. Hodel, 799 F.2d 1423, 142829 (10th Cir. 1986)
(en banc), cert. denied, 480 U.S. 951 (1987); Bradshaw v. United States, 47 Fed.
Cl. 549, 554 (Fed. Cl. 2000) (finding that the government is not liable to plaintiffs
for damage caused by the feral horses because the feral horses are not
instrumentalities of the government and because the regulation [of wild horses] is a
land-use regulation that is reasonably related to the promotion of the public
interest); Fallini v. United States, 56 F.3d 1378, 1383 (Fed. Cir. 1995) (What the
Fallinis may challenge under the Fifth Amendment is what the government has
done, not what the horses have done.).
resurrect it in its reply brief. Barnett v. US Air, Inc., 228 F.3d 1105, 1110 n.1 (9th
Cir. 2000) (en banc) (We review only issues which are raised specifically and
distinctly in a partys opening brief. We will not manufacture arguments for an
appellant, and a bare assertion does not preserve a claim. We have consistently
regarded issues raised for the first time in reply briefs as waived.).
50
IV.
THE DISTRICT COURT CORRECTLY DISMISSED THE

AMENDED COMPLAINT WITH PREJUDICE.
Although as further explained below, the district court properly dismissed

Plaintiffs case with prejudice, NACO waived any challenge on this issue by not
making any argument on this point in its opening brief. See Seattle Sch. Dist., No.
1 v. B.S., 82 F.3d 1493, 1502 (9th Cir. 1996) (holding that a party waives an issue
it purports to challenge when it presents no explanation in support of its
contention); FDIC v. Garner, 126 F.3d 1138, 1145 (9th Cir. 1997) (holding that
when a party present[s] no case law or argument the court deem[s] the
argument waived); Barnett, 228 F.3d at 1110 n.1 (noting that a bare assertion
does not preserve a claim). While NACO stated in its summary of argument that
it would argue that the district court erred when it did not grant leave to amend,
Op. Br. at 3738, NACO never followed through by actually making such an
argument in its brief in chief or citing any authority for such an argument.
Therefore, as this Court has held, NACOs bare assertion does not preserve a
claim that the district court erred by dismissing the case with prejudice. See
Barnett, 228 F.3d at 1110 n.1.24
24
The closest NACO has ever come to an argument on this issue was a statement
in its summary of argument that it filed its Amended Complaint specifically to
add a new plaintiff rather than respond to a motion to dismiss []even though one
such motion had been filed . . . . NACO Br. at 3738. However, this statement is
not only totally untethered to any legal authority, but also misrepresents the
proceedings below. As discussed supra at 1415, NACO had AWHPCs motion
51
In any event, under the circumstances of this case, dismissal with prejudice
was clearly appropriate. As this Court had held, even unexplained dismissals with
prejudice, though disfavored, are appropriate if it is clear on de novo review that
the complaint could not be saved by amendment. Eminence Capital, LLC v.
Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). This is precisely such a case.
To begin with, AWHPC moved to dismiss this case nearly two months
before Plaintiffs amended their Complaint, and that motion explained in great
detail that two Supreme Court precedents barred Plaintiffs claims. See MTD 8
21, AISER 2036. Nevertheless, although insisting that the entire case should be
stayed because Plaintiffs were preparing an Amended Complaint that would
render resolution of AWHPCs motion unnecessary, AISER 5, NACOs longawaited Amended Complaint utterly failed to address any of the problems that
AWHPC had long since identified. For these reasons, not only would it have been
futile to allow NACO yet another opportunity to cure the deficiencies it its
Complaint, but its Complaintas drafted twicewas clearly frivolous. See
Eminence Capital, 316 F.3d at 1053 (explaining that dismissal with prejudice may
be appropriate when the Plaintiffs allegations are frivolous); Neitzke v. Williams,
to dismiss for nearly two months before filing its Amended Complaint and, despite
what it now says, expressly argued to the district court that its Amended Complaint
would render a resolution of AWHPCs motion unnecessary. AISER 5.
Therefore, NACOs revisionist account to this Court of what occurred below is
entirely misleading.
52
490 U.S. 319, 325 (1989) ([A] complaint . . . is frivolous where it lacks an
arguable basis either in law or fact); Blixseth v. Yellowstone Mountain Club, 796
F.3d 1004, 1007 (9th Cir. 2015) (An appeal is frivolous when the result is obvious
or the appellants arguments are wholly without merit.).
Here, before the district courtand now before this CourtNACO
perpetuated its pattern of blithe disregard for Supreme Court precedent by not only
ignoring the tenets of both Lujan and SUWA, but also failing to cite Twombly,
Iqbal, or their numerous Ninth Circuit progeny, instead citing and making
arguments based on a standard of review that the Supreme Court has expressly
repudiated. See supra at 1920; see also NACOs Oppn. to MTD at 5, AISER 2;
Op. Br. at 32, 38. NACOs sheer disregard for the Supreme Courts holdings on
the relevant pleading standard and the requirements for claims under the APA
indicates that its claims have no basis in law and are thus frivolous.
Nor is this a case where it appear[ed] that plaintiffs had a reasonable chance
of successfully stating a claim if given another opportunity. Eminence Capital,
316 F.3d at 1053. On the contrary, the programmatic nature of NACOs efforts to
revamp BLMs entire wild horse management program reveals that no possible set
of amendments would allow a similar complaint to survive a motion to dismiss.
Finally, to allow NACO to amend its Complaint to again seek relief that the
judiciary cannot provide would require AWHPC to spend scarce time and
53
resources explainingyet againwhy Lujan and SUWA would still bar NACOs
claims. Thus, granting leave to amend would have caused AWHPC undue
prejudiceyet another reason why the district court correctly dismissed NACOs
Amended Complaint with prejudice. See, e.g., Ascon Properties, Inc. v. Mobil Oil
Co., 866 F.2d 1149 (9th Cir. 1989) (affirming dismissal with prejudice where the
time and expense of continued litigation . . . would cause undue prejudice).25
CONCLUSION
For the foregoing reasons, this Court should affirm the district courts
decision.
Nor is there any basis for NACOs argument that the district court erred by
dismissing this case for lack of subject matter jurisdiction under Rule 12(b)(1)
rather than for failure to state a claim under Rule 12(b)(6). See SUWA, 542 U.S. at
73 (reversing the Tenth Circuits decision overturning the district courts dismissal
for lack of subject matter jurisdiction); Wild Fish Conservancy v. Jewell, 730 F.3d
791, 802 (9th Cir. 2013) (applying Lujan to find that [t]he APAs requirement of
final agency action precludes our undertaking a general judicial review of [an
agencys] day-to-day operations . . . [and] because this claim does not challenge
final agency action, we lack jurisdiction to consider it); Institute for Wildlife
Protection, 205 Fed. Appx. at 485; ONRC, 150 F.3d at 1136; San Luis Unit Food
Producers, 709 F.3d at 801 (applying SUWA to find that where claims amount to
a broad programmatic attack . . . [plaintiffs] have not established subject matter
jurisdiction under the APA); Grant School Dist. No. 3 v. Dombeck, 126 Fed.
Appx. 823, 825 (9th Cir. 2005). It is also well established that this Court may
affirm the district courts decision on any basis, including failure to state a claim.
See, e.g., Salameh, 726 F.3d at 1129; Fund for Animals, 460 F.3d at 18 n.4 (finding
that dismissal for lack of subject matter jurisdiction was an error of no
consequence because the court could properly affirm the District Courts
judgment pursuant to Rule 12(b)(6)).
25
54
ORAL ARGUMENT REQUEST

Because this appeal raises important issues and oral argument may aid the
Courts consideration, AWHPC respectfully requests that the Court schedule an
oral argument.
STATEMENT OF RELATED CASE
AWHPC knows of no other cases pending in this Court are related to this
case.
Respectfully submitted
/s/ William N. Lawton
Katherine A. Meyer
Meyer Glitzenstein & Eubanks LLP
4115 Wisconsin Ave. NW, Ste 210
P: (202) 588-5206
F: (202) 588-5409
Counsel for Defendant-Appellee
American Wild Horse Preservation
Campaign
55
CERTIFICATE OF COMPLIANCE
Pursuant to Fed. R. App. P. 32(a)(7)(C) and Ninth Circuit Rule 32-1, I
certify that this principal brief is proportionately spaced, has a typeface of 14
points or more, and contains 13,789 words, excluding the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
Katherine A. Meyer
P: (202) 588-5206
F: (202) 588-5409
Counsel for Defendant-Appellee
American Wild Horse Preservation
Campaign
56
PROOF OF SERVICE
I hereby certify that on February 12, 2016, I electronically filed the
foregoing principal brief with the Clerk of the Court for the United States Court of
Appeals for the Ninth Circuit using the appellate CM/ECF system. Participants in
the case who are registered CM/ECF users will be served by the appellate CM/ECF
system, which includes the following counsel of record for Plaintiff-Appellants and
Federal Defendant-Appellee:
Mark L. Pollott
2576 E. Sadie Drive
Eagle, ID 83616
Anna Katselas
U.S. Dept. of Justice
Env. & Nat. Res. Div.
P.O. Box 7415
Ben Franklin Station
Michael N. Beede
2300 W. Sahara Ave. Ste 420
Las Vegas, NV 89102
Julie Cavanaugh-Bill
401 Railroad Street, Ste 307
Elko, NV 89801
John W. Hoffman
Hoffman, Test & Collier
429 West Plumb Lane
Reno, NV 89509
Katherine A. Meyer
P: (202) 588-5206
F: (202) 588-5409
57
ADDENDUM
ADDENDUM TABLE OF CONTENTS

PAGE
Statutes
Administrative Procedure Act
5 U.S.C. 551(13). ............................................................................... ADD-1
5 U.S.C. 706....................................................................................... ADD-1
Wild Free-Roaming Horses and Burros Act
16 U.S.C. 1331................................................................................... ADD-2
16 U.S.C. 1332................................................................................... ADD-2
16 U.S.C. 1333................................................................................... ADD-3
16 U.S.C. 1334................................................................................... ADD-5
Federal Land Policy and Management Act
43 U.S.C. 1712................................................................................... ADD-6
Taylor Grazing Act
43 U.S.C. 315b................................................................................... ADD-6
43 U.S.C. 315f. .................................................................................. ADD-7
Regulations
40 C.F.R. 1502.14. ....................................................................................... ADD-7
43 C.F.R. 4700.0-2. ...................................................................................... ADD-7
43 C.F.R. 4700.0-5(d). ................................................................................. ADD-8
43 C.F.R. 4710.1. ......................................................................................... ADD-8
43 C.F.R. 4710.2. ......................................................................................... ADD-8
43 C.F.R. 4710.3-1. ...................................................................................... ADD-8
43 C.F.R. 4710.5. ......................................................................................... ADD-8
43 C.F.R. 4720.2-1. ...................................................................................... ADD-9
ADMINISTRATIVE PROCEDURE ACT

5 U.S.C. 551(13). Definitions
For the purposes of this subchapter . . .
(13) agency action includes the whole or a part of an agency rule, order, license,
sanction, relief, or the equivalent or denial thereof, or failure to act . . . .
5 U.S.C. 706. Scope of Review

To the extent necessary to decision and when presented, the reviewing court shall
decide all relevant questions of law, interpret constitutional and statutory
provisions, and determine the meaning or applicability of the terms of an agency
action. The reviewing court shall-(1) compel agency action unlawfully withheld or unreasonably delayed; and
(2) hold unlawful and set aside agency action, findings, and conclusions
found to be-(A) arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or
short of statutory right;
(D) without observance of procedure required by law;
(E) unsupported by substantial evidence in a case subject to sections
556 and 557 of this title or otherwise reviewed on the record of an
agency hearing provided by statute; or
(F) unwarranted by the facts to the extent that the facts are subject to
trial de novo by the reviewing court.
In making the foregoing determinations, the court shall review the whole record or
those parts of it cited by a party, and due account shall be taken of the rule of
prejudicial error.
ADD-1
WILD FREE-ROAMING HORSES AND BURROS ACT

16 U.S.C. 1331. Congressional findings and declaration of policy
Congress finds and declares that wild free-roaming horses and burros are living
symbols of the historic and pioneer spirit of the West; that they contribute to the
diversity of life forms within the Nation and enrich the lives of the American
people; and that these horses and burros are fast disappearing from the American
scene. It is the policy of Congress that wild free-roaming horses and burros shall be
protected from capture, branding, harassment, or death; and to accomplish this they
are to be considered in the area where presently found, as an integral part of the
natural system of the public lands.
16 U.S.C. 1332. Definitions

As used in this Act (a) "Secretary" means the Secretary of the Interior when used in connection
with public lands administered by him through the Bureau of Land
Management and the Secretary of Agriculture in connection with public
lands administered by him through the Forest Service;
(b) "wild free-roaming horses and burros" means all unbranded and
unclaimed horses and burros on public lands of the United States;
(c) "range" means the amount of land necessary to sustain an existing herd
or herds of wild free-roaming horses and burros, which does not exceed their
known territorial limits, and which is devoted principally but not necessarily
exclusively to their welfare in keeping with the multiple-use management
concept for the public lands;
(d) "herd" means one or more stallions and his mares; and
(e) "public lands" means any lands administered by the Secretary of the
Interior through the Bureau of Land Management or by the Secretary of
Agriculture through the Forest Service.
(f) "excess animals" means wild free-roaming horses or burros
(1) which have been removed from an area by the Secretary pursuant
to application law or,
ADD-2
(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. 1333. Powers and duties of Secretary

(a) Jurisdiction; management; ranges; ecological balance objectives; scientific
recommendations; forage allocations adjustments
All wild free-roaming horses and burros are hereby declared to be under the
jurisdiction of the Secretary for the purpose of management and protection in
accordance with the provisions of this Act. The Secretary is authorized and
directed to protect and manage wild free-roaming horses and burros as components
of the public lands, and he may designate and maintain specific ranges on public
lands as sanctuaries for their protection and preservation, where the Secretary after
consultation with the wildlife agency of the State wherein any such range is
proposed and with the Advisory Board established in section 1337 of this Act
deems such action desirable. The Secretary shall manage wild free-roaming horses
and burros in a manner that is designed to achieve and maintain a thriving natural
ecological balance on the public lands. He shall consider the recommendations of
qualified scientists in the field of biology and ecology, some of whom shall be
independent of both Federal and State agencies and may include members of the
Advisory Board established in section 1337 of this Act. All management activities
shall be at the minimal feasible level and shall be carried out in consultation with
the wildlife agency of the State wherein such lands are located in order to protect
the natural ecological balance of all wildlife species which inhabit such lands,
particularly endangered wildlife species. Any adjustments in forage allocations on
any such lands shall take into consideration the needs of other wildlife species
which inhabit such lands.
(b) Inventory and determinations; consultations; overpopulations; research study;
submittal to Congress
(1) The Secretary shall maintain a current inventory of wild free-roaming
horses and burros 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 free-roaming
ADD-3
horses and burros 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). In making such determinations the
Secretary shall consult with the United States Fish and Wildlife Service,
wildlife agencies of the State or States wherein wild free-roaming horses and
burros are located, such individuals independent of Federal and State
government as have been recommended by the National Academy of
Sciences, and such other individuals whom he determines have scientific
expertise and special knowledge of wild horse and burro protection, wild-life
management and animal husbandry as related to rangeland management.
(2) Where the Secretary determines on the basis of:
(i) the current inventory of lands within his jurisdiction;
(ii) information contained in any land use planning completed
pursuant to section 1712 of title 43;
(iii) information contained in court ordered environmental impact
statements as defined in section 1902 of title 43; and
(iv) such additional information as becomes available to him from
time to time, including that information developed in the research
study mandated by this section, or in the absence of the information
contained in (i-iv) above 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. Such action shall be taken, in
the following order and priority, until all excess animals have been
removed so as to restore a thriving natural ecological balance to the
range, and protect the range from the deterioration associated with
overpopulation.
(A) The Secretary shall order old, sick, or lame animals to be
destroyed in the most humane manner possible;
(B) The Secretary shall cause such number of additional excess
wild free- roaming horses and burros to be humanely captured
and removed for private maintenance and care for which he
ADD-4
determines an adoption demand exists by qualified individuals,

and for which he determines he can assure humane treatment
and care (including proper transportation, feeding, and
handling): Provided, that, not more than four animals may be
adopted per year by any individual unless the Secretary
determines in writing that such individual is capable of
humanely caring for more than four animals, including the
transportation of such animals by the adopting party.
(C) The Secretary shall cause additional excess wild freeroaming horses and burros for which an adoption demand by
qualified individuals does not exist to be destroyed in the most
humane and cost efficient manner possible.
(3) For the purpose of furthering knowledge of wild horse and burro
population dynamics and their interrelationship with wildlife, forage and
water resources, and assisting him in making his determination as to what
constitutes excess animals, the Secretary shall contract for a research study
of such animals with such individuals independent of Federal and State
government as may be recommended by the National Academy of Sciences
for having scientific expertise and special knowledge of wild horse and
burro protection, wildlife management and animal husbandry as related to
rangeland management. The terms and outline of such research study shall
be determined by a research design panel to be appointed by the President of
the National Academy of Sciences. Such study shall be completed and
submitted by the Secretary to the Senate and House of Representatives on or
before January 1, 1983.
16 U.S.C. 1334. Private maintenance; numerical approximation; strays on

private lands; removal; destruction by agents
If wild free-roaming horses or burros stray from public lands onto privately owned
land, the owners of such land may inform the nearest Federal marshal or agent of
the Secretary, who shall arrange to have the animals removed. In no event shall
such wild free-roaming horses and burros be destroyed except by the agents of the
Secretary. Nothing in this section shall be construed to prohibit a private
landowner from maintaining wild free-roaming horses or burros on his private
lands, or lands leased from the Government, if he does so in a manner that protects
ADD-5
them from harassment, and if the animals were not willfully removed or enticed
from the public lands. Any individuals who maintain such wild free-roaming
horses or burros on their private lands or lands leased from the Government shall
notify the appropriate agent of the Secretary and supply him with a reasonable
approximation of the number of animals so maintained.
FEDERAL LAND POLICY AND MANAGEMENT ACT.

43 U.S.C. 1712. Land use plans
(a)Development, maintenance, and revision by Secretary
The Secretary shall, with public involvement and consistent with the terms and
conditions of this Act, develop, maintain, and, when appropriate, revise land use
plans which provide by tracts or areas for the use of the public lands. Land use
plans shall be developed for the public lands regardless of whether such lands
previously have been classified, withdrawn, set aside, or otherwise designated for
one or more uses.
TAYLOR GRAZING ACT

43 U.S.C. 315b. Grazing permits; fees; vested water rights; permits not to
create right in land
The Secretary of the Interior is authorized to issue or cause to be issued permits to
graze livestock on such grazing districts to such bona fide settlers, residents, and
other stock owners as under his rules and regulations are entitled to participate in
the use of the range, upon the payment annually of reasonable fees in each case to
be fixed or determined from time to time in accordance with governing law.. . . So
far as consistent with the purposes and provisions of this subchapter, grazing
privileges recognized and acknowledged shall be adequately safeguarded, but the
creation of a grazing district or the issuance of a permit pursuant to the provisions
of this subchapter shall not create any right, title, interest, or estate in or to the
lands.
ADD-6
43 U.S.C. 315f. Homestead entry within district or withdrawn lands;

classification; preferences
The Secretary of the Interior is authorized, in his discretion, to examine and
classify any lands withdrawn or reserved by Executive order of November 26,
1934 (numbered 6910), and amendments thereto, and Executive order of February
5, 1935 (numbered 6964), or within a grazing district, which are more valuable or
suitable for the production of agricultural crops than for the production of native
grasses and forage plants, or more valuable or suitable for any other use than for
the use provided for under this subchapter . . . .
PERTINENT REGULATIONS
40 C.F.R. 1502.14. Alternatives including the proposed action
This section is the heart of the environmental impact statement. Based on the
information and analysis presented in the sections on the Affected Environment
( 1502.15) and the Environmental Consequences ( 1502.16), it should present
the environmental impacts of the proposal and the alternatives in comparative
form, thus sharply defining the issues and providing a clear basis for choice among
options by the decisionmaker and the public. In this section agencies shall:
(a) Rigorously explore and objectively evaluate all reasonable alternatives, and for
alternatives which were eliminated from detailed study, briefly discuss the reasons
for their having been eliminated.
43 C.F.R. 4700.0-2. Objectives
The objectives of these regulations are management of wild horses and burros as
an integral part of the natural system of the public lands under the principle of
multiple use; protection of wild horses and burros from unauthorized capture,
branding, harassment or death; and humane care and treatment of wild horses and
burros.
ADD-7
43 C.F.R. 4700.0-5(d). Definitions

As used in this part, the term: . . .
(d) Herd area means the geographic area identified as having been used by a herd
as its habitat in 1971.
43 C.F.R. 4710.1. Land use planning

Management activities affecting wild horses and burros, including the
establishment of herd management areas, shall be in accordance with approved
land use plans prepared pursuant to part 1600 of this title.
43 C.F.R. 4710.2. Inventory and monitoring

The authorized officer shall maintain a record of the herd areas that existed in
1971, and a current inventory of the numbers of animals and their areas of use.
When herd management areas are established, the authorized officer shall also
inventory and monitor herd and habitat characteristics.
43 C.F.R. 4710.3-1. Herd management areas

Herd management areas shall be established for the maintenance of wild horse and
burro herds. In delineating each herd management area, 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 and adjacent private
lands, and the constraints contained in 4710.4. The authorized officer shall
prepare a herd management area plan, which may cover one or more herd
management areas.
43 C.F.R. 4710.5. Closure to livestock grazing

(a) If necessary to provide habitat for wild horses or burros, to implement herd
management actions, or to protect wild horses or burros, to implement herd
management actions, or to protect wild horses or burros from disease, harassment
ADD-8
or injury, the authorized officer may close appropriate areas of the public lands to
grazing use by all or a particular kind of livestock.
(b) All public lands inhabited by wild horses or burros shall be closed to grazing
under permit or lease by domestic horses and burros.
(c) Closure may be temporary or permanent. After appropriate public consultation,
a Notice of Closure shall be issued to affected and interested parties.
43 C.F.R. 4720.2-1. Removal of strayed animals from private lands

Upon written request from the private landowner to any representative of the
Bureau of Land Management, the authorized officer shall remove stray wild horses
and burros from private lands as soon as practicable. The private landowner may
also submit the written request to a Federal marshal, who shall notify the
authorized officer. The request shall indicate the numbers of wild horses or burros,
the date(s) the animals were on the land, legal description of the private land, and
any special conditions that should be considered in the gathering plan.
ADD-9

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Case: 15-15620, 02/12/2016, ID: 9863746, DktEntry: 26, Page 1 of 79

Case: 15-15620, 02/12/2016, ID: 9863746, DktEntry: 26, Page 2 of 79

RULE 26.1 CORPORATE DISCLOSURE STATEMENT

Case: 15-15620, 02/12/2016, ID: 9863746, DktEntry: 26, Page 3 of 79

STATUTORY AND REGULATORY BACKGROUND............................4

The Wild Free-Roaming Horses And Burros Act ......................................4

The Taylor Grazing Act .............................................................................8

The Administrative Procedure Act ............................................................9

WILD HORSES IN NEVADA ...................................................................10

PROCEEDINGS BELOW ..........................................................................11

NACO MISSTATED THE STANDARD OF REVIEW. ..........................19

THE DISTRICT COURT PROPERLY DISMISSED NACOS CLAIMS

The District Court Correctly Found That NACOs Amended Complaint

The District Court Correctly Dismissed NACOs Claims Under Section

The District Court Properly Dismissed NACOs Claims Under Section

THE DISTRICT COURT PROPERLY DISMISSED PLAINTIFFS DUE

THE DISTRICT COURT CORRECTLY DISMISSED THE AMENDED

Case: 15-15620, 02/12/2016, ID: 9863746, DktEntry: 26, Page 4 of 79

Case: 15-15620, 02/12/2016, ID: 9863746, DktEntry: 26, Page 5 of 79

Case: 15-15620, 02/12/2016, ID: 9863746, DktEntry: 26, Page 6 of 79

Colvin Cattle Co. v. United States,

Case: 15-15620, 02/12/2016, ID: 9863746, DktEntry: 26, Page 7 of 79

Fund for Animals, Inc. v. U.S. Bureau of Land Mgmt.,

Case: 15-15620, 02/12/2016, ID: 9863746, DktEntry: 26, Page 8 of 79

Norton v. Southern Utah Wilderness Alliance

Case: 15-15620, 02/12/2016, ID: 9863746, DktEntry: 26, Page 9 of 79

Terenkian v. Republic of Iraq,

Case: 15-15620, 02/12/2016, ID: 9863746, DktEntry: 26, Page 10 of 79

16 U.S.C. 1332(f) ....................................................................................................7

Case: 15-15620, 02/12/2016, ID: 9863746, DktEntry: 26, Page 11 of 79

Federal Rule of Civil Procedure 12(b)(6) ............................................... 3, 13, 21, 54

Case: 15-15620, 02/12/2016, ID: 9863746, DktEntry: 26, Page 12 of 79

Whether the district court was correct to dismiss a case brought by a

consortium of livestock grazing organizations against the Bureau of Land

Whether the district court correctly dismissed Plaintiffs claims under

Whether the district court correctly dismissed Plaintiffs claims under

Case: 15-15620, 02/12/2016, ID: 9863746, DktEntry: 26, Page 13 of 79

Whether the district court properly dismissed Plaintiffs Amended

Case: 15-15620, 02/12/2016, ID: 9863746, DktEntry: 26, Page 14 of 79

As permitted by Fed. R. App. P. 30-1.7, AWHPC has filed supplemental excerpts

Case: 15-15620, 02/12/2016, ID: 9863746, DktEntry: 26, Page 15 of 79

STATUTORY AND REGULATORY BACKGROUND

The Wild Free-Roaming Horses And Burros Act

Case: 15-15620, 02/12/2016, ID: 9863746, DktEntry: 26, Page 16 of 79

BLMs Handbook is available at

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Case: 15-15620, 02/12/2016, ID: 9863746, DktEntry: 26, Page 19 of 79

The Taylor Grazing Act

Under the Taylor Grazing Act (TGA), 43 U.S.C. 315-315r, the

Case: 15-15620, 02/12/2016, ID: 9863746, DktEntry: 26, Page 20 of 79

grazing of livestock on public lands upon the payment . . . of reasonable fees. 43

The Administrative Procedure Act

The Administrative Procedure Act (APA), 5 U.S.C. 701706, provides

Case: 15-15620, 02/12/2016, ID: 9863746, DktEntry: 26, Page 21 of 79

WILD HORSES IN NEVADA

Case: 15-15620, 02/12/2016, ID: 9863746, DktEntry: 26, Page 22 of 79

On December 30, 2013, NACO filed a Complaint challenging BLMs entire

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Case: 15-15620, 02/12/2016, ID: 9863746, DktEntry: 26, Page 24 of 79

Congress, where programmatic improvements are normally made. Id. at 1

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