Legal State of WY APPEAL INTEVENORS OPENING BRIEF PDF

Appellate Case: 15-8041
Document: 01019570525
Date Filed: 02/12/2016
Page: 1
No. 15-8041
ORAL ARGUMENT REQUESTED
______________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
______________________
STATE OF WYOMING,
Petitioner-Appellant,
v.
UNITED STATES DEPARTMENT OF THE INTERIOR, et al.,
Respondents-Appellees,
and
AMERICAN WILD HORSE PRESERVATION CAMPAIGN, et al.,
Intervenors-Appellees.
______________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING IN CASE 2:14-cv-00248
(HONORABLE NANCY D. FREUDENTHAL)
______________________
ANSWERING BRIEF OF INTERVENORS-APPELLEES
______________________
Katherine A. Meyer
Meyer Glitzenstein & Eubanks LLP
4115 Wisconsin Avenue NW
Suite 210
Washington, DC 20016
(202) 588-5206
kmeyer@meyerglitz.com
William S. Eubanks II
245 Cajetan Street
Fort Collins, CO 80524
(970) 703-6060
(202) 588-5049 (fax)
beubanks@meyerglitz.com
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CORPORATE DISCLOSURE STATEMENT

Pursuant to Fed. R. App. P. 26.1, Intervenors American Wild Horse
Preservation Campaign, The Cloud Foundation, Return To Freedom, Carol
Walker, and Kimerlee Curyl hereby state that they are either nongovernmental
public interest organizations or individuals. None of them issues stock of any kind,
nor has parent or subsidiary corporations. Pursuant to Fed. R. App. P. 25(a)(5) and
Tenth Circuit Rule 25.5, the undersigned also certifies that all required privacy
redactions have been made.
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TABLE OF CONTENTS
PAGE
TABLE OF AUTHORITIES .................................................................................. iv
GLOSSARY ............................................................................................................ ix
STATEMENT OF PRIOR OR RELATED APPEALS ............................................x
STATEMENT OF THE ISSUE ................................................................................1
STATEMENT OF THE CASE .................................................................................2
I.
STATUTORY AND REGULATORY FRAMEWORK ................................2

A. The Wild Free-Roaming Horses and Burros Act ...........................................2
B. The Taylor Grazing Act .................................................................................6
II.
RELEVANT FACTUAL BACKGROUND ....................................................7
III.
PROCEEDINGS IN THE DISTRICT COURT ............................................10
SUMMARY OF ARGUMENT ..............................................................................13

ARGUMENT ..........................................................................................................14
I.
STANDARD OF REVIEW ...........................................................................14
II.
THE STATE HAS FAILED TO IDENTIFY A COGNIZABLE FINAL

AGENCY ACTION FOR PURPOSES OF APA SECTION 706(2) ............16
III.
THE STATES REQUESTED RELIEF UNDER SECTION 706(1) OF

THE APA IS FORECLOSED BY NORTON AND THE PLAIN
LANGUAGE OF THE WILD HORSE ACT ................................................20
ii
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A. BLMs Management Of Wild Horses, Including Decisions About Whether ..

To Remove Them From These HMAs, Is Infused With Broad Discretion
And Thus Is Non-Justiciable Under APA Section 706(1) As The Supreme
Court Held In Norton....................................................................................21
B. Even If The Supreme Court Had Not Explicitly Foreclosed This Action
In Norton, The Plain Language Of The Wild Horse Act Demonstrates
That There Is No Basis For Relief Under Section 706(1) Of The APA
Because The State Cannot Establish That BLM Has Any Mandatory,
Non-Discretionary Duty ..............................................................................26
C. Nothing In Congress 1978 Wild Horse Act Amendments Alters BLMs
Discretion In Managing Wild Horses On Public Lands ..............................37
D. Because Every Wild Horse Removal Requires NEPA ReviewAs The
State ConcedesBLM Must Necessarily Retain Discretion In Making
Removal Decisions ......................................................................................39
E. Other Courts Have Also Rejected Section 706(1) Claims Predicated On
The Same Clause In The Wild Horse Act Relied Upon By The State ........42
CONCLUSION .......................................................................................................47
STATEMENT OF REASONS SUPPORTING ORAL ARGUMENT ...................47
CERTIFICATE OF COMPLIANCE AND CERTIFICATE OF SERVICE .........49
CERTIFICATES OF PRIVACY REDACTION AND VIRUS SCAN ..................50
iii
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TABLE OF AUTHORITIES
CASES
PAGE
Am. Horse Protection Assn v. Frizzell,

403 F. Supp. 1206 (D. Nev. 1975) .......................................................................22
Am. Horse Protection Assn, Inc. v. Watt,
694 F.2d 1310 (D.C. Cir. 1982) ...........................................................................22
Ashcroft v. Iqbal,
556 U.S. 662 (2009) .............................................................................................14
Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007) .............................................................................................14
Bennett v. Spear,
520 U.S. 154 (1997) ...................................................................................... 17, 19
Biodiversity Conservation Alliance v. Jiron,
762 F.3d 1036 (10th Cir. 2014) ...........................................................................21
Burnett v. Mortg. Elec. Registration Sys., Inc.,
706 F.3d 1231 (10th Cir. 2013) ...........................................................................14
Chevron, U.S.A., Inc. v. Natural Res. Def. Council. Inc.,
467 U.S. 837 (1984) ................................................................................. 26, 30, 34
Clappier v. Flynn,
605 F.2d 519 (10th Cir. 1979) ...............................................................................8
Cloud Found., Inc. v. Kempthorne,
No. CV06111BLGRFC, 2008 WL 2794741 (D. Mont. July 16, 2008) ......38
Colo. Wild Horse and Burro Coal., Inc. v. Salazar,
639 F. Supp. 2d 87 (D.D.C. 2009) ....................................................... 5, 27, 35, 36
iv
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Colo. Wild Horse and Burro Coal., Inc. v. Salazar,

890 F. Supp. 2d 99 (D.D.C. 2012) ................................................................ 39, 40
Ctr. for Native Ecosys. v. Gables,
509 F.3d 1310 (10th Cir. 2007) ............................................................... 17, 18, 19
Dept of Transp. v. Pub. Citizen,
541 U.S. 752 (2004) .............................................................................................41
Fund for Animals, Inc. v. U.S. Bureau of Land Mgmt.,
460 F.3d 13 (D.C. Cir. 2006) .................................................................... 5, 17, 22
Goos v. ICC,
911 F.2d 1283 (8th Cir. 1990) .............................................................................42
Greater Yellowstone Coal. v. Tidwell,
572 F.3d 1115 (10th Cir. 2009) ...........................................................................20
In Def. of Animals v. U.S. Dept of Interior,
751 F.3d 1054 (9th Cir. 2014) ................................................................... 4, 30, 45
In Def. of Animals v. U.S. Dept of Interior,
909 F. Supp. 2d 1178 (E.D. Cal. 2012) .................................................... 4, 36, 38
Kane Cnty. Utah v. Salazar,
562 F.3d 1077 (10th Cir. 2009) ...........................................................................25
Khalik v. United Air Lines,
671 F.3d 1188 (10th Cir. 2012) .................................................................... 14, 25
Kim v. Park,
No. 08-5499, 2009 WL 1702972 (N.D. Ill. June 16, 2009) ................................33
Klamath-Siskiyou Wildlands Ctr. v. U.S. Forest Serv.,
No. 2:05-cv-0299, 2006 WL 1991414 (E.D. Cal. July 14, 2006) .......................32
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Lujan v. Natl Wildlife Fedn,

497 U.S. 871 (1990) ...................................................................................... 17, 18
Mobil Exploration & Producing U.S. v. Dept of Interior,
180 F.3d 1192 (10th Cir. 1999) ...........................................................................19
Nev. Assn of Counties v. U.S. Dept of the Interior,
No. 3:13-cv-712, 2015 WL 1130982 (D. Nev. Mar. 12, 2015)...........................43
Newton v. FAA,
457 F.3d 1133 (10th Cir. 2006) ...........................................................................33
Norton v. Southern Utah Wilderness Alliance,
542 U.S. 55 (2004) .......................................... 1, 13, 15, 17, 21, 22, 24, 25, 39, 42
O'Toole v. Northrop Grumman Corp.,
499 F.3d 1218 (10th Cir. 2007) .............................................................................8
Sac and Fox Nation of Mo. v. Norton,
240 F.3d 1250 (10th Cir. 2001) .................................................................... 41, 42
Tal v. Hogan,
453 F.3d 1244 (10th Cir. 2006) .............................................................................8
United States v. Adame-Orozco,
607 F.3d 647 (10th Cir. 2010) ...................................................................... 26, 34
United States v. Fuller,
409 U.S. 488 (1973) ...............................................................................................6
United States v. Power Engg Co.,
303 F.3d 1232 (10th Cir. 2002) ...........................................................................35
Utah Envtl. Cong. v. Russell,
518 F.3d 817 (10th Cir. 2008) .............................................................................20
vi
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STATUTES
5 U.S.C. 706(1) .................................................................. 1, 15, 20, 21, 25, 41, 43
5 U.S.C. 706(2) ........................................................................................ 15, 16, 20
16 U.S.C. 1332(f) ....................................................................................... 6, 33, 34
16 U.S.C. 1333 ......................................................................................... 19, 31, 32
16 U.S.C. 1333(a) ........................................................ 2, 3, 5, 7, 12, 13, 23, 25, 30
16 U.S.C. 1333(b) .................................................................................................22
16 U.S.C. 1333(b)(1).................................................................................. 3, 22, 28
16 U.S.C. 1333(b)(2)................ 5, 11, 12, 23, 24, 27, 28, 29, 31, 33, 34, 40, 43, 44
16 U.S.C. 1331-1340 ..................................................................................... 1, 17
42 U.S.C. 4321-4370 ............................................................................... 4, 39, 40
43 U.S.C. 315b ....................................................................................................6, 8
43 U.S.C. 315f.........................................................................................................7
43 U.S.C. 315-315r ...............................................................................................6
43 U.S.C. 1712 ......................................................................................................27
43 U.S.C. 1712(a) ...................................................................................................3
43 U.S.C. 1902 ......................................................................................................27
vii
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FEDERAL REGULATIONS
40 C.F.R. 1502.14(a) ...............................................................................................4
43 C.F.R. 4700.0-2 ................................................................................................2
43 C.F.R. 4700.0-5(d) .............................................................................................4
43 C.F.R. 4710.1 .....................................................................................................4
43 C.F.R. 4710.2 ...................................................................................................3
43 C.F.R. 4710.3-1 ..................................................................................................4
43 C.F.R. 4710.5(a) ...................................................................................... 6, 7, 23
viii
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GLOSSARY
AML
Appropriate Management Level
APA
Administrative Procedure Act
BLM
Bureau of Land Management
FLPMA
Federal Land Policy and Management Act
HMA
Herd Management Area
NEPA
National Environmental Policy Act
RMP
Resource Management Plan
ix
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STATEMENT OF PRIOR OR RELATED APPEALS

Pursuant to Tenth Circuit Rule 28.2(C)(1), Intervenors-Appellees American
Wild Horse Preservation Campaign, The Cloud Foundation, Return to Freedom,
Carol Walker, and Kimerlee Curyl represent that there are no prior or related
appeals in this case. The pending appeal in American Wild Horse Preservation
Campaign v. Jewell, No. 15-8033 (10th Cir.), also involves the management of
wild horses in Wyoming, but it addresses removals from federal public lands
pursuant to 16 U.S.C. 1334. Many of the same parties to this case are also
involved in the American Wild Horse Preservation Campaign appeal.
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STATEMENT OF THE ISSUE

The district court dismissed the petition by the State of Wyoming (State)
seeking to compel the Bureau of Land Management (BLM) to immediately
remove federally protected wild horses from seven herd management areas
(HMAs) in Wyoming under the Wild Free-Roaming Horses and Burros Act, 16
U.S.C. 1331-1340 (Wild Horse Act)regardless of whether current
rangeland health data and other pertinent information before BLM indicate that
such removal is necessary. The State sought such an order under the provision of
the Administrative Procedure Act (APA) that authorizes a reviewing court to
compel agency action unlawfully withheld or unreasonably delayed. 5 U.S.C.
706(1). The issue raised in this appeal is whether a party may pursue such relief
under this provision of the APA when that party has failed to identify any discrete,
non-discretionary statutory duty that Congress imposed on BLM that the agency
has not fulfilled. As demonstrated below, because such a case is clearly foreclosed
by the Supreme Courts decision in Norton v. Southern Utah Wilderness Alliance,
542 U.S. 55 (2004), the district court correctly ruled that the State failed to state a
claim upon which such relief may be granted.1
Pursuant to Fed. R. App. P. 28(d), Petitioners refer to the parties using the
designations adopted by the district courtState with respect to PetitionerAppellant State of Wyoming, BLM with respect to Federal RespondentsAppellees, and Intervenors with respect to Intervenors-Appellees American Wild
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STATEMENT OF THE CASE

I.
STATUTORY AND REGULATORY FRAMEWORK

A.
The Wild Free-Roaming Horses and Burros Act
Congress enacted the Wild Horse Act in 1971, proclaiming wild freeroaming horses and burros as a national esthetic resource and living symbols of
the rugged independence and tireless energy of our pioneer heritage. 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 free-roaming 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.
(emphases added).
The Wild Horse Act 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) (emphasis added); 43 C.F.R.
4700.0-2 (instructing BLM to manage wild horses and burros under the
Horse Preservation Campaign, The Cloud Foundation, Return To Freedom, Carol

Walker, and Kimerlee Curyl.
2
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principle of multiple use.). As a result, protection of wild horses and burros must
be considered during the preparation and amendment of Resource Management
Plans (RMPs), which are prepared for public lands pursuant to the Federal Land
Policy and Management Act (FLPMA). See 43 U.S.C. 1712(a) (requiring the
preparation of land use plans for public lands); see also BLM, Manual 4710 Management Considerations, Rel. 4-112, at 4 (June 7, 2010) (BLM Manual
4710) (requiring that wild horses be considered in preparation of RMPs).2
In the Wild Horse Act, Congress instructed as the Acts governing mandate
that BLM 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. 16 U.S.C. 1333(a) (emphasis added). To achieve this statutory
mandate, the Act provides that BLM shall maintain a current inventory of wild
free-roaming horses and burros on given areas of public lands, id. 1333(b)(1),
which BLM does for individual HMAs. 43 C.F.R. 4710.2, 4710.3-1; see BLM
Manual 4710 at 9-10 (outlining procedures for conducting population inventories).
Available at
http://www.blm.gov/pgdata/etc/medialib/blm/wo/Information_Resources
_Management/policy/ blm_manual.Par.66361.File.dat/MS-4710.pdf.
3
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Under the Wild Horse Acts implementing regulations, an HMA is

established for the maintenance of wild horse and burro herds, 43 C.F.R.
4710.3-1, based on the geographic areas that were used by these animals in 1971
when the Wild Horse Act was enacted. See 43 C.F.R. 4700.0-5(d). HMAs are
designated and modified in RMPs through BLMs land use planning process. 43
C.F.R. 4710.1; Aplt. App. Vol. III at 435-36 (BLM Handbook H-4700-1 at 7-8).
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.
4321-4370hthe statute that requires all federal agencies to examine the
environmental impacts of their decisions, to avoid adverse environmental impacts
when possible, and to [r]igorously explore alternative actions that would have
less adverse impacts. 40 C.F.R. 1502.14(a); see also Aplt. App. Vol. III at 446
(BLM Handbook H-4700-1 at 18) (explaining that [a]n interdisciplinary and sitespecific environmental analysis and decision process (NEPA) with public
involvement is required to establish or adjust AML). 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
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1054 (9th Cir. 2014), which given the long-term nature of RMPs results in a
revised RMP approximately every 15-20 years.
Because the Act requires that [a]ll management activities shall be at the
minimal feasible level, 16 U.S.C. 1333(a), AMLs are generally expressed as a
population range within which [wild horses and burros] can be managed for the
long term in a given HMA without resulting in rangeland damage. Aplt. App.
Vol. III at 444-45 (BLM Handbook H-4700-1 at 16-17). The 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).
The Wild Horse Act directs BLM to manage wild horses and burros by
removing excess animals from the 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 excess 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) (A prerequisite to removal under the [Wild
Horse Act] is that BLM first make an excess determination.). The term excess
animals refers to those wild free-roaming horses that must be removed from an
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area in order to preserve and maintain a thriving natural ecological balance . . . in

that area. 16 U.S.C. 1332(f) (emphasis added).
In addition to removing excess wild horses and burros 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 or burros. 43 C.F.R. 4710.5(a). BLM may 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. Aplt. App. Vol. III at 437 (BLM Handbook 4700-1
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).
B.
The Taylor Grazing Act
Under the Taylor Grazing Act, 43 U.S.C. 315-315r, the Secretary of the
Interior, through BLM, is authorized to issue permits for the grazing of livestock
on public lands upon the payment . . . of reasonable fees. 43 U.S.C. 315b.
However, the statute makes clear that 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 these public lands. Id. 315b (emphasis added); see also United States v.
Fuller, 409 U.S. 488, 494 (1973) (The provisions of the [Taylor Grazing Act]. . .
6
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make clear the congressional intent that no compensable property might be created
in the permit lands themselves as a result of the issuance of the permit. (emphasis
added)). The Taylor Grazing Act further provides that BLM is authorized, in [its]
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 that are required to be protected under the Wild Horse Act. 16
U.S.C. 1333(a); see also 43 C.F.R. 4710.5(a) (BLM may prohibit grazing on
the public lands where necessary to protect wild horses).
II.
RELEVANT FACTUAL BACKGROUND

According to BLM estimates, there are over 3,000 federally protected wild
horses and burros currently living in Wyoming on sixteen different HMAs, which
range in size from just under 25,000 acres to over 478,000 acres. See Aplt. App.
Vol. I at 81. Ranchers use these same public lands to graze domestic livestock
pursuant to permits issued under the Taylor Grazing Act, see 43 U.S.C. 315, at
below-market, taxpayer-subsidized rates.3 In fact, BLM has issued over 3,530
According to a recent study by the Congressional Research Service, BLM

charged $1.35 per animal unit month (AUM)a months use and occupancy of
the range by one animalthrough February 2013, which is the lowest fee that can
be charged and is significantly less than market value, 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. The Court may take
judicial notice of these factswhich are publicly available and not in dispute
7
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grazing permits in Wyoming, providing for approximately 17.6 million acres in

grazing allotments,4 while HMAs for wild horses account for only 4.8 million
acres.5 Although such grazing permits do not confer any entitlement to these
public lands, see 43 U.S.C. 315b, the State and livestock ranchers nevertheless
view wild horses and burros as competition for the limited resources on the range,
see Aplt. App. Vol. I at 21 (stating [t]he State leases these lands [within the
HMAs at issue] to livestock operators and complaining that excess wild horses
consume forage, which in turn decreases the value of these lands for leasing to
livestock producers).
without converting the current disposition to one for summary judgment. See, e.g.,
Tal v. Hogan, 453 F.3d 1244, 1264 n.24 (10th Cir. 2006) (explaining that the Court
may consider facts subject to judicial notice . . . without converting the motion . . .
into a motion for summary judgment); Clappier v. Flynn, 605 F.2d 519, 535 (10th
Cir. 1979) (courts may properly take notice of official government publications).
4
BLM, Fiscal Year 2011: Rangeland Inventory, Monitoring, and Evaluation

Report, Table 6 (2011), available at http://www.blm.gov/pgdata/etc/medialib/blm/
wo/Planning_and_Renewable_Resources/rangelanr.Par.49582.File.dat/RangelRan
2011.pdf; see also O'Toole v. Northrop Grumman Corp., 499 F.3d 1218, 1225
(10th Cir. 2007) (It is not uncommon for courts to take judicial notice of factual
information found on the world wide web.).
5
BLM, Herd Area and Herd Management Area Statistics as of March 1, 2014 1
(2014), available at http://www.blm.gov/style/medialib/blm/wo/Planning_and_
Renewable_Resources/wild_horses_and_burros/statistics_and_maps/holding__ado
ption.Par.19711.File.dat/HMAs%20and%20HAs%20March%202014.pdf.
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On August 21, 2014, the State sent a letter to BLM demand[ing] that BLM
comply with its non-discretionary duties to remove excess wild horses from
certain public lands in Wyoming and threatening the legal action currently
underway unless the violations identified in this letter are remedied within 60
days. Aplt. App. Vol. I at 17-18. The State explained that it leases the[] lands
[at issue] to livestock operators and complained that [t]he State cannot tolerate
wild horse populations because they decrease[] the value of these lands for
leasing to livestock producers. Aplt. App. Vol. I at 21. Notably, attached to its
letter to BLM, the State included a BLM chart indicating that five of the seven
HMAs were within their respective AML ranges as recently as 2013, with the
remaining two HMAs within the AML population range in 2012. See Aplt. App.
Vol. I at 81.
The State followed up its initial letter with a second letter to BLM on
October 28, 2014, relaying the States interpretation of BLMs lack of response
after the States imposed sixty-day deadline to be a final decision not to act and
its intent to file the present action. Aplt. App. Vol. II at 176. BLM responded to
the State in a letter dated November 5, 2014, indicating that the agency had in fact
removed over 1,200 wild horses from the southwestern area of the state in
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October 2014. See Aplt. App. Vol. II at 178. BLM went on to explain that wild
horse [g]ather plans for fiscal year 2015 are currently being developed, assured
the State that BLM will utilize [its] resources and capabilities to the maximum
extent possible in managing these public lands, and requested the States
continued collaboration in developing a fiscally and ecologically sustainable
program for management of wild horses in Wyoming. Id. (emphasis added).
III.
PROCEEDINGS IN THE DISTRICT COURT

On December 8, 2014, the State filed a cursory 4-page Petition for Review
of Final Agency Inaction seeking to compel BLM to remove wild horses from
public lands in Wyoming. See Aplt. App. Vol. I at 12-15. Specifically, the State
sought to have the district court: (1) declare that BLM has violated the Wild Horse
Act for failing to adequately manage[] overpopulations of wild horses on public
lands in Wyoming; (2) order BLM to immediate[ly] remove excess wild
horses from these public lands and prevent wild horse overpopulations in the
State, and; (3) require BLMs continued compliance with the Wild Horse Act.
See id. On January 5, 2015, the district court granted the motion of the American
Wild Horse Preservation Campaign, The Cloud Foundation, Return To Freedom,
Carol Walker, and Kimerlee Curyl to intervene in this case as a matter of right.
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In February 2015, both the Federal Respondents and Intervenors moved to

dismiss the States Petition pursuant to Federal Rules of Civil Procedure 12(b)(1)
and 12(b)(6) for failing to state a claim upon which relief could be granted due to
the fact that the Wild Horse Act does not impose any mandatory, non-discretionary
duty on BLM to immediately remove wild horses from public lands merely
because a population has exceeded an AML established many years earlier in the
RMP that guides BLMs management. See Aplt. App. Vol. II at 179-229. In
response, the State made all of the same arguments that it makes in this appeal,
focusing exclusively on one portion of 16 U.S.C. 1333(b)(2) stating that BLM
shall immediately remove excess animals from the range so as to achieve
appropriate management levels, while ignoring the overall context of the statute
as well as the remainder of that sentence clarifying that such removals are only
triggered when BLM has determined both that an overpopulation exists and that
action is necessary to remove excess animals. See Aplt. App. Vol. II at 230-257.
On April 21, 2015, Chief Judge Freudenthal of the U.S. District Court for
the District of Wyoming dismissed the States case. See Aplt. App. Vol. II at 325336. The court found that [a]t this time there is no discrete action required by
BLM and the management of wild horses on federal land throughout Wyoming is
properly left to the sound discretion of BLM without judicial entanglement. Aplt.
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App. Vol. II at 326-27. In so ruling, the court acknowledged that the HMAs at
issue were above their respective AMLs, Aplt. App. Vol. II at 329, but relied on
the plain language of the statute in three district provisions in determining that
Congress foreclosed the relief sought by the State.
First, the court explained that the provision relied on by the State16
U.S.C. 1333(b)(2)itself imposes no mandatory, non-discretionary duty on
BLM because Congress explicitly created a legal prerequisite to wild horse
removal in that provision which the State has not even alleged has been triggered
in this case (i.e., that BLM has made a determination that action is necessary to
remove excess animals in these HMAs). See Aplt. App. Vol. II at 333. Second,
the court pointed to the overarching mandate Congress provided in the Wild Horse
Acti.e., that BLM shall achieve and maintain a thriving natural ecological
balance on the public lands, 16 U.S.C. 1333(a)in finding that it would be at
odds with that directive if BLM were required to remove horses simply because
their numbers exceeded an outdated AML even when BLM determined, on the
basis of current data and information, that their removal was not necessary to
maintain a thriving natural ecological balance in a particular HMA. See Aplt.
App. Vol. II at 333-35. Third, the court found that Congress would not have
defined the term excess animals in the Act to mean those horses which must be
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removed from an area in order to preserve and maintain a thriving natural

ecological balance if Congress did not intend for BLM to retain discretion to
determine prior to removal whether removal is, in fact, necessary to achieve a
thriving natural ecological balance based on current data and information. See
Aplt. App. Vol. II at 334 (citing 16 U.S.C. 1333(a) (emphasis added)).
Accordingly, the district court rejected the States argument as
unpersuasive, and held that [t]he most important determination for removal
concerns excess animals, not AMLs because [t]hat phrase is dominant in the
[Wild Horse Act], not AMLs or the inventory requirement. Aplt. App. Vol. II at
334. Thus, relying on Norton v. Southern Utah Wilderness Alliance, 542 U.S. at
67, the court explained that while action is mandatory if necessary to achieve and
maintain a thriving natural ecological balance on the public lands, BLM is still left
with a great deal of discretion in deciding how to achieve this Congressional
objective . . . [and thus] the States petition fails to set forth a discrete agency
action that BLM is required to take. Aplt. App. Vol. II at 334-35.
SUMMARY OF ARGUMENT
The district court correctly dismissed the States petition because it fails to
state a claim upon which relief may be granted. Not only is the States requested
relief foreclosed by the plain language of the Wild Horse Act, but, in any event, the
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State has simply failed to set forth any mandatory, non-discretionary action that
BLM has failed to take. Therefore, under Norton and its progeny, this Court must
affirm the district courts dismissal of the States petition because the State failed
to plead sufficient facts to state a plausible claim for relief under the APA. See 5
U.S.C. 706.
ARGUMENT
I.
STANDARD OF REVIEW
To withstand a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6), a complaint must contain enough allegations of fact, taken as true, to

state a claim to relief that is plausible on its face. Khalik v. United Air Lines, 671
F.3d 1188, 1190-91 (10th Cir. 2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). [O]nly a complaint that states a plausible claim for relief
survives a motion to dismiss. Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009)). Accordingly, a petition for review that sets forth mere labels and
conclusions, and a formulaic recitation of the elements of a cause of action will
not suffice. Burnett v. Mortg. Elec. Registration Sys., Inc., 706 F.3d 1231, 1235
(10th Cir. 2013) (citations omitted).
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Under Section 706(2) of the APA, a party may bring an action to hold
unlawful and set aside agency action that is found to be arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. 706(2).
Inherent in that provision is that a party must challenge a specific final agency
action previously made by the agency because the lack of any such final agency
action renders this provision inapplicable for judicial review purposes.
Under Section 706(1) of the APA, a party may bring an action to compel
agency action unlawfully withheld or unreasonably delayed. In Norton, however,
the Supreme Court held that a claim under 706(1) [of the Administrative
Procedure Act] can proceed only where a plaintiff asserts that an agency failed to
take a discrete agency action that it is required to take, 542 U.S. at 64 (emphasis
in original). The Supreme Court further explained that [t]he limitation to discrete
action precludes [a] broad programmatic attack[] on an agencys implementation
of a statute. Id. In other words, a claim must identify a specific mandatory action
that the agency failed to undertake, instead of merely alleging a failure to comply
with a broad statutory directive. Likewise, the Supreme Court explained that
[t]he limitation to required agency action rules out judicial direction of even
discrete agency action that is not demanded by law . . . . Id. at 65. Thus, under
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section 706(1) of the APA, courts may compel agencies to take only a ministerial
or non-discretionary act. Id. at 64.
II.
THE STATE HAS FAILED TO IDENTIFY A COGNIZABLE FINAL

AGENCY ACTION FOR PURPOSES OF APA SECTION 706(2).
Before turning to the States section 706(1) claim under the APA,
Intervenors first address the allegations in the States petition for review asserting
that BLM has, in fact, made a final decision not to remove wild horses from the
Wyoming HMAs at issue that is reviewable under 706(2) of the APA, as arbitrary
and capricious, an abuse of discretion, or otherwise not in accordance with law.
See 5 U.S.C. 706(2). Despite the States insistence that BLM has made a specific
decision not to act, and that such decision is final for purposes of judicial review,
Aplt. App. Vol. I at 13, the State fails to point to any such justiciable final agency
action. The States attempt to transmute BLMs lack of instantaneous action at the
States behest into final agency action by creating a sixty-day deadline that is not
tied to any statutory obligation and foisting it upon BLM in its August 2014 letter,
see Aplt. App. Vol. I at 18, does not produce a final agency decision as required
for review under section 706(2) of the APA. This is presumably why the State has
entirely abandoned this argument on appeal, which alone is grounds for dismissing
the petition for review.
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Although the Wild Horse Act does not provide a private right of action, see
16 U.S.C. 1331-1340; Fund for Animals, 460 F.3d at 18, the APA supplies
criteria for agency action or inaction subject to judicial review. See 5 U.S.C.
702, 704. The APA entitles a person suffering legal wrong because of agency
action, or adversely affected or aggrieved by agency action to judicial review. Id.
702. However, the person claiming a right to sue must identify some agency
action that affects him, and that agency action must be final. Lujan v. Natl
Wildlife Fedn, 497 U.S. 871, 882 (1990); accord Norton, 542 U.S. at 61-62. For
agency action to be final, it must mark the consummation of the agencys
decisionmaking process and must be a decision that determines rights or
obligations . . . or from which legal consequences will flow. Ctr. for Native
Ecosys. v. Gables, 509 F.3d 1310, 1329 (10th Cir. 2007) (quoting Bennett v. Spear,
520 U.S. 154, 177-78 (1997)).
The State lacks any support for its assertion that BLM has arrived at any
final decision not to manage the wild horses on public lands in Wyoming. To the
contrary, in BLMs November 2014 letter responding to the States demands, BLM
assured the State that the agency is currently developing wild horse gather plans
and that the agency will carefully consider the actions needed in Wyoming as it
plans management activities for 2015 and beyond. Aplt. App. Vol. II at 178
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(emphasis added). Furthermore, in its letter, BLM explained that it had in fact
removed over one thousand horses from southwestern Wyoming in October 2014,
which indicates that BLM is taking ongoing action to address the purported
concerns raised by the State in its petition for review. Id. Far from evincing a
decision not to act, BLMs letter elucidates the agencys specific wild horse
management actions in Wyoming in the very recent past and its ongoing planning
efforts for additional management steps in the near future consistent with the Wild
Horse Act. Accordingly, BLMs alleged final decision not to act does not
even remotely satisfy the criteria for final agency action subject to judicial review.
Aplt. App. Vol. I at 13.
Indeed, far from constituting final agency inaction, as the State has
characterized it, BLMs letter indicates that, rather than arriving at the conclusion
of any management decisions concerning the public lands in Wyoming, BLM is
still in the midst of making its wild horse management decisions. See Lujan, 497
U.S. at 890-91 (rejecting petitioners characterization of continuing . . . operations
of the BLM, including developing land use plans as required by FLPMA, as
final agency action reviewable under the APA); Ctr. for Native Ecosys., 509 F.3d
at 1329. BLMs letter detailing its ongoing management plans and request[ing]
[Wyomings] continued assistance in collaborating with the BLM can hardly be
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said to represent[] the consummation of the administrative process. Mobil

Exploration & Producing U.S. v. Dept of Interior, 180 F.3d 1192, 1197-98 (10th
Cir. 1999) (finding letter from agency asking for petitioners continued cooperation
in decisionmaking process and relaying agencys intent to take additional action
was not final agency action).
Furthermore, as explained in greater detail infra, the State has failed to show
that BLM has come to any decision from which legal consequences will flow or
that determines any rights or obligations, as the State does not sufficiently allege
that BLM has fulfilled the elements necessary to trigger any duty on the part of the
agency to remove wild horses from the public lands at issue under section 3 of the
Wild Horse Act, 16 U.S.C. 1333. See Ctr. for Native Ecosys., 509 F.3d at 1329
(quoting Bennett, 520 U.S. at 177-78). Thus, there is simply no final agency action
under the circumstances from which legal consequences will flow that would
provide a basis for judicial review under section 706(2) of the APA.
Finally, although the State puzzlingly titled its petition for review as one
seeking review of final agency inaction, the States requested reliefa court
order requiring BLM to take immediate action to remove excess wild horses from
Wyoming public lands and prevent wild horse overpopulations in the state of
Wyoming, Aplt. App. Vol. I at 14does not entail setting aside any final
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agency action, and therefore is not the type of relief a court could provide under
section 706(2) of the APA. See 5 U.S.C. 706(2) (authorizing courts to hold
unlawful and set aside agency action . . . found to be . . . arbitrary, capricious, an
abuse of discretion or otherwise not in accordance with law . . . . (emphasis
added)); Greater Yellowstone Coal. v. Tidwell, 572 F.3d 1115, 1120 (10th Cir.
2009) (explaining that a court will set aside an agency decision [if] it is arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law
(emphasis added) (citing 5 U.S.C. 706(2)(A)); Utah Envtl. Cong. v. Russell, 518
F.3d 817, 823 (10th Cir. 2008)) (same).
In sum, because the State has failed to set forth a final agency action as
required for APA review under 5 U.S.C. 706(2), the Court must dismiss the
States petition for failing to state a claim upon which relief may be granted.
III.
THE STATES REQUESTED RELIEF UNDER SECTION 706(1) OF

THE APA IS FORECLOSED BY NORTON AND THE PLAIN
LANGUAGE OF THE WILD HORSE ACT.
Despite the States fleeting citation to section 706(1) of the APA in its
petition for review, see Aplt. App. Vol. 1 at 13, the State has also failed to
sufficiently allege any warranted relief under that provision of the APA. Because
claims concerning agency action unlawfully withheld or unreasonably delayed
within the meaning of the APA, 5 U.S.C. 706(1), can proceed only where a
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plaintiff asserts that an agency failed to take a discrete agency action that it is
required to take, the States claims must be dismissed, as the district court
correctly held. See, e.g., Norton, 542 U.S. at 63-64 & n.1; Biodiversity
Conservation Alliance v. Jiron, 762 F.3d 1036, 1078 n.53 (10th Cir. 2014)
([C]hallenges [under 706(1)] are appropriate . . . only when the plaintiff shows
an agency failed to take a discrete agency action that it is required to take.
(citation and quotation marks omitted)).
A.
BLMs Management Of Wild Horses, Including Decisions About

Whether To Remove Them From These HMAs, Is Infused With
Broad Discretion And Is Thus Non-Justiciable Under APA
Section 706(1) As The Supreme Court Held In Norton.
In Norton, which sets out the standard for judicial review of claims under
APA section 706(1), the Supreme Court explained that [t]he principal purpose of
the[se] APA [judicial review] 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. Norton, 542 U.S. at 66. Moreover, pointing to a concrete
example of a broad statutory mandate for which mandamus or other relief under
this provision would not be appropriate, the Court specifically cited to the Wild
Horse Acts directive that BLM must manage wild free-roaming horses and
burros in a manner that is designed to achieve and maintain a thriving ecological
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balance on the public lands, Norton, 542 U.S. at 67 (citing 16 U.S.C. 1333)
(emphasis added). Indeed, as the D.C. Circuit explained in relying on Norton
when dismissing a case analogous to this one, [i]n a portion of the opinion that
almost seems to anticipate this case, the [Supreme] Court hypothesized a plaintiff
who alleged that the Secretary had failed to manage wild free-roaming horses and
burros in a manner that is designed to achieve and maintain a thriving natural
ecological balance and noted that such a case is not contemplated by the APA.
Fund for Animals, 460 F.3d 13 at 21 (emphasis added) (citations and quotation
marks omitted).
More specifically, encompassed within the Wild Horse Acts broad
statutory mandate concerning how BLM manages wild horses on public lands, 16
U.S.C. 1333(b) confers broad discretion upon the agency to determine whether
and where excess wild horses exist, as well as whether appropriate management
levels should be achieved by the removal of wild horses it has determined are
excess, or other options (such as sterilization, or natural controls on population
levels). Id. 1333(b)(1) (emphasis added); see also Am. Horse Prot. Assn v.
Frizzell, 403 F. Supp. 1206, 1217 (D. Nev. 1975) (noting that BLM has discretion
in determining whether an area is overpopulated and whether to reduce the
population by removing excess wild horses); Am. Horse Protection Assn, Inc. v.
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Watt, 694 F.2d 1310, 1318 (D.C. Cir. 1982) (explaining that an excess
determination can be made on the basis of whatever information [the agency] has
at the time of [its] decision). In fact, rather than removing wild horses once BLM
determines that action is necessary to maintain a thriving natural ecological
balance, 16 U.S.C. 1333(b)(2), BLM may instead adopt other measures within its
discretion such as opting to close appropriate areas of the public lands to grazing
use by all or a particular kind of livestock in order to provide habitat for wild
horses or burros. 43 C.F.R. 4710.5(a).6
Thus, crucially, the principal purpose of the Wild Horse Act is not the
removal of wild horses above AML, as the State insists; rather, as the Supreme
Court noted in Norton, the statutes fundamental objective is to 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)
(emphasis added). Therefore, the Wild Horse Act does not mandate the removal of
In its Handbook interpreting the Wild Horse Act, BLM has provided additional
discretionary actions that it may takeshort of removing all horses above the
applicable AMLin compliance with the statutes objective of maintaining or
restoring a thriving natural ecological balance in an HMA. See Aplt. App. Vol. III
at 452 (explaining that BLM may, in its discretion, take such actions as reduc[ing]
[wild horse] population growth rates using methods such as fertility control,
adjustments in the sex ratio in favor of males, [or] a combination of fertility control
and sex ratio adjustment).
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any or all horses above AML; to the contrary, the Act requires BLM to take
management actionwhich may include removing some or all wild horses above
AML on a given area of public landsso as to restore a thriving natural
ecological balance to the range . . . . Id. 1333(b)(2)(iv) (emphasis added). This
is precisely why the Supreme Court selected this very statutory directive to
manage wild free-roaming horses and burros in a manner that is designed to
achieve and maintain a thriving natural ecological balance as the paradigmatic
example of a broad statutory mandate under which courts cannot compel an
agency to act under section 706(1) of the APA. Norton, 542 U.S. at 66-67.
As a result, although the State protests that it is not claiming that [BLM]
failed to comply with an abstract policy for managing wild free-roaming horses
and burros in a manner that is designed to achieve and maintain a thriving natural
ecological balance, but rather is simply asking the Court to compel the removal
of wild horses from public lands, States Br. at 26, the two inextricably intertwined
concepts cannot be divorced from each other. BLMs discretionary removal
authority stems directly from the statutes fundamental objective of achieving and
maintaining a thriving natural ecological balance on the public lands BLM is
charged with administering, meaning that BLM need only removeand may only
removewild horses where the agency determines that such removal, as opposed
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to other actions within the agencys discretion, is necessary to achieve the statutes
overarching command of restoring or maintaining a thriving natural ecological
balance on the public lands. 16 U.S.C. 1333(a). Thus, the case currently before
the Court is precisely the type of action the Supreme Court concluded could not be
brought under section 706(1) of the APA and must fail for that reason alone. See
Norton, 542 U.S. at 66-67.
In sum, in light of the Supreme Courts recognition of the Wild Horse Acts
broad statutory mandate concerning how BLM manages wild horses on public
lands, including whether and when to remove them from the range, and the myriad
discretionary options Congress provided to BLM in determining how best to
achieve and maintain a thriving natural ecological balance on the public lands,
16 U.S.C. 1333(a), the State has not alleged that BLM has neglected to take any
discrete action demanded by law. Norton, 542 U.S. at 65. Because the State has
failed to allege a discrete agency action that BLM is required to take concerning
the removal of wild horses from public lands, this case must be dismissed. Khalik,
671 F.3d at 1190-91; Kane Cnty. Utah v. Salazar, 562 F.3d 1077, 1086 (10th Cir.
2009) (explaining that in Norton, the Supreme Court 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) (emphasis added).
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Even If The Supreme Court Had Not Explicitly Foreclosed This

Action In Norton, The Plain Language Of The Wild Horse Act
Demonstrates That There Is No Basis For Relief Under Section
706(1) Of The APA Because The State Cannot Establish That
BLM Has Any Mandatory, Non-Discretionary Duty.
Although the States petition for review contends that BLM is neglecting its
mandatory, non-discretionary duties to manage wild horses in Wyoming
according to the [Wild Horse Act], Aplt. App. Vol. I at 13, the State has failed
even to allege the elements that would trigger any such obligation on the part of the
agency under section 3 of the Act, which, as the district court held, is dispositive in
this case and requires dismissal of the States petition for review. By the same
token, because the plain language of the Wild Horse Act expressly forecloses the
States statutory interpretation that would impose a duty on BLM that Congress
itself did not createand, instead, Congress unequivocally conferred broad
discretion to BLM in making the determinations at handthe statute itself is
unambiguous and the States position must be rejected as a matter of law. See,
e.g., Chevron, U.S.A., Inc. v. Natural Res. Def. Council. Inc., 467 U.S. 837, 842-43
(1984) (finding that when the intent of Congress is clear, that is the end of the
matter; for the court, as well as the agency, must give effect to the unambiguously
expressed intent of Congress); United States v. Adame-Orozco, 607 F.3d 647, 652
(10th Cir. 2010) (explaining that when the statutes language is plain and plainly
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satisfied, the sole function of the courts can only be to enforce it according to its
terms).
In the Wild Horse Act, Congress made clear that BLM has no obligation to
remove wild horses from public landand indeed may not remove wild horses
from public landunless and until BLM makes two distinct statutorily required
determinations: (1) that an overpopulation exists on a given area of the public
lands and (2) that action is necessary to remove excess animals. 16 U.S.C.
1333(b)(2); see also Colo. Wild Horse and Burro Coal., 639 F. Supp. 2d at 98 (A
prerequisite to removal under the [Wild Horse Act] is that BLM first determine that
an overpopulation exists and that the wild free-roaming horses and burros slated
for removal are excess animals. (emphases added)). Congress further directed
that determinations as to whether and where an overpopulation exists and whether
action should be taken to remove excess animals must be based upon a variety of
factors, including:
(i) the current inventory of lands within [its] jurisdiction; (ii)
information contained in any land use planning completed pursuant to
[43 U.S.C. 1712]; (iii) information contained in court ordered
environmental impact statements [under 43 U.S.C. 1902]; and such
additional information as becomes available . . . including that
information developed in the research study mandated by this section,
or in the absence of the information contained in (iiv) above on the
basis of all information currently available to [the agency].
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16 U.S.C. 1333(b)(1)-(2) (emphases added). Only after determining, on the basis

of these factors, that an overpopulation [of wild horses] exists on a given area of
the public lands and that action is necessary to remove excess animals may BLM
then remove excess animals from the range so as to achieve appropriate
management levels. Id. 1333(b)(2)(iv) (emphases added).
Hence, because the State has failed to allege in its petition for review that
BLM has, in fact, made the statutorily required determination that action is
necessary at this time to remove wild horses from these HMAsbased on the
current inventory and other relevant factors prescribed by Congress for making
that determination prior to triggering removalthe State has not satisfied the most
fundamental elements necessary to establish any duty on the part of BLM that has
been triggered with respect to removing any wild horses from these HMAs.
In refusing to accept the plain language of the Wild Horse Act, the State
hinges its case exclusively on one clause in the entire statutory schemei.e., that
BLM shall immediately remove excess animals from the range so as to achieve
appropriate management levels. States Br. at 20 (citing 16 U.S.C. 1333(b)(2)).
In ignoring the rest of the Act (including the remainder of that same sentence in
which Congress qualified the circumstances in which BLM may remove excess
wild horses), the State argues that the action of surpassing the appropriate
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management level triggers the Wild Horse Acts requirement to remove excess
horses. Id. at 21. These arguments are fatally flawed for myriad reasons.
First, as the district court correctly held, see Aplt. App. Vol. II at 333, the
language of 16 U.S.C. 1333(b)(2) does not create an unqualified obligation on
BLM to remove every wild horse immediately when an HMAs population
exceeds the AML, as the State disingenuously asserts. Rather, given that the
explicit purposes of the Act are to protect[] wild horses and to manage them as
an integral part of the natural system of the public lands, 16 U.S.C. 1331,
Congress deliberately imposed two distinct legal prerequisites that must occur
before BLM may remove any federally protected wild horse from the range: (1)
BLM must determine that an overpopulation exists on a given area of the public
lands, and (2) BLM must determine that action is necessary to remove excess
animals. Id. 1333(b)(2).
Thus, even if the State were correct in alleging in its petition for review that
an overpopulation exists in these HMAs simply by comparing current population
numbers to the AMLs established long ago in the RMPs that guide management in
these areas, the State has nevertheless failed to demonstrate that BLM has ever
determinedon the basis of current data and other factors identified by Congress
as relevant to this separate determinationthat action is necessary to remove
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excess animals. Id. That alone compels dismissal of the States petition for
review due to States failure to point to any concrete statutory duty that has been
triggered, especially given that Congress spoke in unequivocal terms in creating
these two specific legal prerequisites that have simply not been satisfied here. See
Chevron, 467 U.S. at 842-43 (explaining that [i]f the intent of Congress is clear,
that is the end of the matter; for the court, as well as the agency, must give effect to
the unambiguously expressed intent of Congress).
Second, as the district court further explained, see Aplt. App. Vol. II at 33335, the States position also disregards the overarching mandate of the Wild Horse
Act discussed abovei.e., that BLM 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. 16 U.S.C. 1333(a) (emphasis added).
Thus, as the Ninth Circuit Court of Appeals held in In Defense of Animals v. U.S.
Department of the Interior, 751 F.3d 1054, 1063-64 (9th Cir. 2014)upon which
the State heavily reliesalthough BLM may rely on an AML in making wild horse
management decisions if there are also carefully-documented concerns about the
deterioration of riparian areas and cultural sites caused by overpopulation, id. at
1063, Congress made clear that BLM determinations to remove wild horses must,
at minimum, be based on the current inventory of lands, all information
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currently available to BLM, and other factors enumerated in the statute so that
BLM can accurately evaluate whether the removal of some or all wild horses
above the AML is necessary to maintain a thriving natural ecological balance.
Id. 1333(b)(2) (emphases added).
This distinction is crucial given that AMLs are often extremely outdated
because programmatic RMPs are only revised every 15-20 years, see Aplt. App.
Vol. III at 394, 397, 385 (explaining that the Green River, Grass Creek, and
Rawlins RMPs are 19, 18, and 8 years old respectively), but current data and
information about rangeland health and resources such as forage, vegetation, and
waterwhich Congress required BLM to account for before determining whether
removal of wild horses is necessaryis critical for BLM to accurately assess
whether or not action is necessary to remove excess animals in order to achieve
and maintain a thriving natural ecological balance. 16 U.S.C. 1333.
Simply put, if BLM made site-specific wild horse removal decisions based
on nothing else but an outdated AML from a programmatic RMPi.e., a
population number which may have been prepared, for example, at a time many
years earlier when the HMA was experiencing a prolonged drought and thus has
limited relevance to current circumstances and resource needssuch
determinations would flout the statutory instruction to take into consideration the
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current information available to BLM concerning range resources and in the

process would eviscerate Congress governing mandate that BLM may remove
federally protected wild horses from the range only when BLM deems such action
necessary to maintain a thriving natural ecological balance. 16 U.S.C. 1333.
In addition, if BLM made removal decisions based solely on the AML, it would
also undermine fundamental precepts of administrative law by avoiding sitespecific analysis through reference to an outdated programmatic document. See
Klamath-Siskiyou Wildlands Ctr. v. U.S. Forest Serv., No. 2:05-cv-0299, 2006 WL
1991414, at *7 (E.D. Cal. July 14, 2006) (holding that an agency cannot defer on
a site-specific analysis simply by referring to a broad programmatic document . . .
which may be outdated or no longer scientifically substantiated).
Indeed, this is why BLM, in interpreting its responsibilities under the Wild
Horse Act, determined in its formal Handbook that prior to any removal actions,
the agency will analyze current information including grazing utilization and
distribution, trend in range ecological condition, actual use, climate (weather) data,
current population inventory, [wild horses and burros] located outside the [herd
management area (HMA)] in areas not designated for their long-term
maintenance and other factors . . . . Aplt. App. Vol. III at 475. Thus, based on
Congress clear instruction that BLM must make wild horse removal decisions
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based on current data tied to determining whether such action is necessary to

achieve and maintain a thriving natural ecological balance, BLM has determined
in its Handbook that [j]ustifying a removal based on nothing more than the
established AML is not acceptable. Id. (emphasis added).7
Third, as the district court held, Aplt. App. Vol. II at 334, Congress clarified
in yet another provision of the Wild Horse Act that BLMs removal decisions turn
not on a population exceeding AML, but instead on whether removal of wild
horses is currently necessary to ensure a thriving natural ecological balance in that
HMA. In defining excess animals for purposes of the Act, Congress explained
that the term means wild free-roaming horses . . . which must be removed from an
Although the State asserts that this Court should not afford Chevron deference to
BLMs formal handbook that the agency issued years before the State filed its
petition for review and which the State has never challenged in court, see States
Br. at 32, at minimum, the Court must afford the Handbook some weight given that
it very closely parallels the statutory text that forecloses the States position in this
case. See Newton v. FAA, 457 F.3d 1133, 1137 (10th Cir. 2006) (explaining that
even where a handbook is not issued as a regulation, if it is interpreting the
provisions of a statute it is entitled to deference to the extent that it is
persuasive). In any event, the fact that the State has itself heavily relied on the
Handbook in its brief, see States Br. at 9, 24, 29, undercuts the States argument
that the Court should entirely ignore this agency interpretation of its authority
under the statute. See Kim v. Park, No. 08-5499, 2009 WL 1702972, at *2 n.2
(N.D. Ill. June 16, 2009) (explaining that where [b]oth parties have cited the
handbook, the handbook is persuasive and entitled to some weight in judicial
interpretations of the applicable statute).
33
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area in order to preserve and maintain a thriving natural ecological balance . . .

in that area. 16 U.S.C. 1332(f) (emphasis added). Thus, crucially, Congress did
not define excess animals as merely those horses that are above AML at any
given point in time; rather, Congress deliberately limited the phrase excess
animals in 16 U.S.C. 1332(f) to only those wild horses that BLM specifically
determines pursuant to 16 U.S.C. 1333(b)(2)based on current data and
informationmust be removed from an area in order to preserve and maintain a
thriving natural ecological balance. 16 U.S.C. 1332(f).
Accordingly, even as to the sole statutory clause that the State repeatedly
cites in support of its position, albeit severely out of contexti.e., BLM shall
immediately remove excess animals from the range so as to achieve appropriate
management levels, id. 1333(b)(2) (emphasis added)that clause only applies
to excess animals and not, as the State contends, all wild horses that happen to be
above the AML. Indeed, the express reference to excess animals in that clause
makes clear Congress plain intent that BLM may only immediately remove
those horses satisfying the definition of excess animals, which has nothing to do
with the AML and everything to do with whether a horses removal is necessary to
ensure a thriving natural ecological balance, 16 U.S.C. 1332(f), which is yet
another reason that the States petition for review must be rejected under the plain
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language of the Act and Chevron Step 1 principles. See Chevron, 467 U.S. at 84243 (explaining that [i]f the intent of Congress is clear, that is the end of the matter;
for the court, as well as the agency, must give effect to the unambiguously
expressed intent of Congress); Adame-Orozco, 607 F.3d at 652 (explaining that
when the statutes language is plain and plainly satisfied, the sole function of the
courts can only be to enforce it according to its terms).8
In sum, because BLMs removal authority is limited to those wild freeroaming horses and burros that it determines to be excess animals within the
meaning of the [Wild Horse Act], Colo. Wild Horse and Burro Coal., 639 F.
Not only does the States counter-textual construction of the Wild Horse Act as
focusing removal decisions exclusively on AMLs read out of the statute Congress
key objective of maintaining or restoring a thriving natural ecological balance
which Circuit precedent prohibits, see United States v. Power Engg Co., 303 F.3d
1232, 1238 (10th Cir. 2002) ([W]e cannot construe a statute in a way that renders
words or phrases meaningless, redundant, or superfluous. (citations and quotation
marks omitted)), but it also is not in keeping with the Acts mandate that [a]ll
management activities shall be at the minimal feasible level. 16 U.S.C. 1333(a)
(emphases added). Indeed, if the Court were to adopt the States interpretation, it
would require BLM to expend exorbitant resources constantly (and invasively)
entering into the nations 179 wild horse HMAs every time that they exceed the
AML by even a single horse, whether or not current range data suggests that their
removal is necessary to ensure a thriving natural ecological balance. By forcing
BLM to repeatedly enter HMAs, round up horses using helicopters and other
stress-inducing techniques, and then to remove only a few horses that current data
show are not even negatively affecting range resources would be the opposite of
ensuring that BLMs management activities are at the minimal feasible level.
8
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Supp. 2d at 96, and the State points to nothing in its pleadings indicating that BLM
has made the specific determinations that wouldor even couldtrigger any duty
to remove wild horses from these HMAs, the State has failed to allege that BLM
has shirked any mandatory duty concerning its management of wild horses on
public lands in Wyoming. Therefore, as the district court held, this Court has no
legal basis under the APA or the plain language of the Wild Horse Act for ordering
BLM to comply with the States demands that BLM take immediate action to
remove excess wild horses from Wyoming public lands and prevent wild horse
overpopulations in Wyoming, Aplt. App. Vol. I. at 14. Consequently, this Court
should affirm the district courts dismissal of the States petition for review.9
The State insists that the district courts finding requires [BLM] to redo the
analysis that led to the establishment of the appropriate management level.
States Br. at 28; see also id. at 30 (asserting that BLM cannot ignore its own
appropriate management levels or delay removal under the guise of re-evaluating
those management levels (emphasis added)). Plainly, however, the process under
FLPMA of revising an RMP every 15-20 yearsin which, inter alia, BLM
develops an AML based on information existing at that timeto guide BLMs
management for several decades is a very different process from routine removal
decisions under the Wild Horse Act in which BLM must evaluate current
rangeland health data to determine whether action is necessary to remove wild
horses (or myriad other options available to BLM) to maintain a thriving natural
ecological balance. Thus, although the State conflates these two distinct statutory
processes, the district courts ruling certainly does not require BLM to redo an
AML analysis because removal decisions occur outside of FLPMAs RMP
revision process and are based on different factors explicitly prescribed by
Congress. See, e.g., In Def. of Animals, 909 F. Supp. 2d at 1192 (AMLs are
determined through revisions to the applicable [RMP]).
36
9
C.
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Nothing In Congress 1978 Wild Horse Act Amendments Alters

BLMs Discretion In Managing Wild Horses On Public Lands.
In support of its position, the State relies heavily on the fact that Congress
amended the Wild Horse Act in 1978. See States Br. at 2-10, 16, 21, 25, 28, 30,
34. But those amendmentswhich conferred more discretion on BLM in order to
assist the agency in maintaining and restoring a thriving natural ecological balance
as necessary on the public landsundermine the States argument that the
amendments somehow stripped BLM of all discretion in determining how best to
achieve the statutes principal objective.
As both a matter of logic and law, the fact that Congress sought in the 1978
amendments to address increasing range deterioration issues by granting more
authority and discretion to BLM in managing wild horse populations cannot at the
same time have eliminated or severely restricted BLMs ability to determine how
best to protect the rangei.e., achieving or maintaining a thriving natural
ecological balance, in the words of Congressincluding by considering, along
with other available options, whether action is necessary to remove excess wild
horses based on current rangeland health data and information. Indeed, as the State
readily admits in its brief, what Congress sought to eliminate with the 1978
amendments was not the existence of each and every horse above an outdated
AML but instead the deterioration to the range caused when BLM did not have
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adequate authority and discretion to remove excess horses or take other actions
when necessary to achieve a thriving natural ecological balance. States Br. at 16.
Therefore, Congress conferral of more discretion on BLM in 1978 tied directly to
achieving a thriving natural ecological balance only reinforces that BLMs removal
decisions must necessarily hinge on current rangeland health data rather than
outdated AMLs alone.
Moreover, the States reliance on the 1978 amendments fails to grapple with
the fact that, as discussed supra at 21-25, the Wild Horse Act as currently written
delineates a variety of management options, one of which being the removal of
wild horses, and requires consideration of conditions as they currently exist on the
range, demonstrating that BLM retains discretion concerning how to achieve the
statutes aima thriving natural ecological balance on the public rangelands. In
addition, several federal court decisions issued after the 1978 amendments have
explicitly confirmed that BLM maintains broad discretion in implementing the
Wild Horse Act, including in determining whether removal of excess horses is
necessary. See In Def. of Animals, 909 F. Supp. 2d at 1190-91 (explaining that
BLM has considerable discretion on how to carry out the directives of the Act);
Cloud Found., Inc. v. Kempthorne, No. CV06111BLGRFC, 2008 WL
2794741, at *11 (D. Mont. July 16, 2008) (The Wild Horse Act gives [BLM] a
38
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high degree of discretionary authority in managing wild horses on public lands.

(citation omitted)).
Accordingly, because the State cannot point to anything in the 1978
amendments that actually limited BLMs discretion in managing wild horses or in
determining whether removal of wild horses is necessary to achieve a thriving
natural ecological balanceand, in fact, those amendments significantly enhanced
BLMs authority in making these management decisions subject to current
rangeland health data and other pertinent informationthe States position must be
rejected. Indeed, as discussed above, the Supreme Court observedlong after
1978that the Wild Horse Act provides BLM a broad statutory mandate to
manage wild free-roaming horses and burros. Norton, 542 U.S. at 67.
D.
Because Every Wild Horse Removal Requires NEPA ReviewAs

The State ConcedesBLM Must Necessarily Retain Discretion
In Making Removal Decisions.
When examining the available alternatives to removing wild horses from the
range and determining what course of action within its discretion it should select to
achieve a thriving natural ecological balance, BLM is required to conduct an
environmental analysis under the National Environmental Policy Act (NEPA),
42 U.S.C. 4321-4370h, as many courts have recognized. See, e.g., Colo. Wild
Horse and Burro Coal., Inc. v. Salazar, 890 F. Supp. 2d 99, 102 (D.D.C. 2012)
39
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(explaining that a gather plan . . . requires an environmental review

under NEPA and a separate decision record). Crucially, in its district court
briefing, the State conceded that BLM must comply with NEPA before removing
wild horses from public lands. See Aplt. App. Vol. II at 250 (Wyoming is not
asserting that [BLM is] excuse[d] . . . from fulfilling other legal requirements that
function in conjunction with the Wild Horse Act, such as completing an analysis in
compliance with the National Environmental Policy Act . . . .). This admission is
yet another basis for finding that BLM retains discretion in making removal
decisions and thus the relief sought by the State cannot be compelled by court
order.
Under NEPA, BLM examines current rangeland conditions and decides
which alternative would be most appropriate for achieving a thriving natural
ecological balance under the circumstances, consistent with Congress instruction
in 16 U.S.C. 1333(b)(2). See 42 U.S.C. 4332(2)(C) (requiring agencys NEPA
analysis to include, inter alia, an examination of alternatives to the proposed
action); Aplt. App. Vol. III at 475 (discussing NEPA analysis for removal
decisions and explaining that [p]rior to removing [wild horses] from public lands,
the authorized officer must make a determination, based on current information,
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that excess animals are present and their removal is necessary to restore a
[thriving natural ecological balance]) (emphases added).
Logically, in circumstances in which an agency lacks all discretion to select
an alternative actionas the State necessarily argues in bringing an APA 706(1)
claim asserting that BLM has failed to undertake a purported non-discretionary
dutythe agency is not required to prepare any NEPA analysis because it is not at
liberty to select any alternative to the proposed action. See Dept of Transp. v.
Pub. Citizen, 541 U.S. 752, 770 (2004) (holding that NEPA analysis not required
for actions about which agency has no discretion); Sac and Fox Nation of Mo. v.
Norton, 240 F.3d 1250, 1263 (10th Cir. 2001) (finding NEPA analysis was not
required because the non-discretionary nature of the agency action would render
the analysis pointless since it could not have had any impact on the [agency
decision]).
Because pertinent precedent, BLMs Handbook, the agencys longstanding
practice concerning removal of wild horses, and the States own brief demonstrate
that BLM must comply with NEPA prior to removing wild horses from public
lands, it must follow that BLMs removal decisions are discretionary in nature
i.e., it cannot be the case that BLM must undertake an environmental analysis
under NEPA, examining alternatives to removing wild horses in order to achieve a
41
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thriving natural ecological balance, but then lacks discretion to implement any of
these alternatives, as it would make little sense to force the [agency] to consider
factors which cannot affect its decision. Sac and Fox Nation, 240 F.3d at 1262-63
(quoting Goos v. ICC, 911 F.2d 1283, 1296 (8th Cir. 1990)). Accordingly, the fact
that BLM must perform a NEPA analysis before it may remove wild horses from
the rangeas the State readily admitsforecloses any argument that such action is
non-discretionary, as BLM plainly retains discretion in deciding how best to
achieve a thriving natural ecological balance on the public rangelands (which may
include removing wild horses above the AML).
Therefore, the relief requested by the State simply cannot be compelled
under the APA. Norton, 542 U.S. at 63-64 & n.1 (holding claims under section
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).
E.
Other Courts Have Also Rejected Section 706(1) Claims

Predicated On The Same Clause In the Wild Horse Act Relied
Upon By The State.
It is telling that the State cannot point to a single court that has allowed an
APA section 706(1) claim to proceed under section 3 of the Wild Horse Act
seeking the immediate removal of wild horses from public landsas the State
seeks in this lawsuitdespite nearly a half-century of implementation of the Act
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and many lawsuits concerning BLMs authority and duties under the statute. To
the contrary, courts have found that such claims do not present viable causes of
action.
For example, the U.S. District Court for the District of Nevada recently
dismissed a functionally indistinguishable lawsuit in which municipal government
officials sued BLM under 5 U.S.C. 706(1), asserting that the agency failed to
comply with its purportedly non-discretionary duties under the Wild Horse Act to
mak[e] explicit determinations of excess populations that the statute demands for
specific HMAs in Nevada and to tak[e] the immediate actions to reduce excess
populations on public lands. See Nev. Assn of Counties v. U.S. Dept of the
Interior, No. 3:13-cv-00712-MMD-WGC, 2015 WL 1130982 (D. Nev. Mar. 12,
2015), appeal docketed Apr. 1, 2015 (reproduced at Aplt. App. II at 303-11). In
that case, the plaintiffs asserted that [b]ased on these estimates [of the current
wild horse populations] and their own projections of population growth in Nevada,
. . . Federal Defendants have not taken mandatory steps to reduce Nevadas wild
horse and burro population. Aplt. App. Vol. II at 308.
The court explained that the Wild Horse Act lays out a process the
Secretary must follow to immediately remove excess animals from public lands,
Aplt. App. Vol. II at 306 (citing 16 U.S.C. 1333(b)(2)), but emphasized that
43
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Congress made clear that [t]he Secretary may take those actions only where she
determines that an overpopulation exists on a given area of the public lands and
that action is necessary to remove excess animals. Id. (citing 16 U.S.C.
1333(b)(2)) (emphases added). Based on the fact that the plaintiffs could not
identify a particular instance where Federal Defendants determined that AMLs
had been exceeded, had then determined that specific action was necessary to
remove excess horses from that HMA to achieve a thriving natural ecological
balance, but nevertheless failed to remove excess animals following [those]
determination[s], Aplt. App. Vol. II at 308-09, the court held that Plaintiffs have
failed to identify any unlawfully withheld agency action, much less a mandatory
agency action. Aplt. App. Vol. II at 309 n.6.
Because the State seeks functionally identical relief in this case with respect
to HMAs in Wyoming for which BLM has not yet made the determinations
necessary to even trigger the purported duty on which the State relies, the absence
of those specific statutory prerequisites compels the conclusion that the States
Petition must be dismissed for the same reasons that the Nevada case was
dismissed. In the end, the States petition for review has not established any
statutory duty imposed on BLM that has yet been triggeredmuch less that any
44
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such duty is mandatory and non-discretionary under the plain terms of the Wild
Horse Acttherefore dooming the States petition for review as a matter of law.
Rather than cite a single case adopting the States counter-textual argument
that a court can compel the removal of wild horses from public lands pursuant to
section 706(1) of the APAbecause no such case existsthe State instead relies
heavily on the Ninth Circuits discussion in In Defense of Animals, 751 F.3d at
1063. However, that case arose in a very different legal context under section
706(2) of the APA and merely provides an example in which BLM chose to
exercise its broad discretion in managing wild horses on public lands by
determining that excess wild horses existed and that removal was, in fact,
necessary under the circumstances precisely because BLM determined, based on
current data, that the overpopulation was resulting in adverse effects to range
resources (and thus hindering a thriving natural ecological balance). See In
Defense of Animals, 751 F.3d at 1063 (finding that BLM had not acted arbitrarily
and capriciously by exercising its discretion to remove horses that were above the
AML after BLM specifically found that there were 1,855 excess wild horses and
after BLM also made specific findings in the record with respect to its carefullydocumented concerns about the deterioration of riparian areas and cultural sites
45
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caused by overpopulation, as well as the likelihood of insufficient forage to sustain

the growing herd (emphasis added)).
Hence, while the Ninth Circuit found in the APA section 706(2) context that
BLM did not act arbitrarily by exercising its discretion to remove excess horses
after making the specific determinations required by Congress before such
removals may occur, id. at 1065 (finding that BLM did not violate the APA
because BLMs actions fell within the discretion which courts have recognized
the BLM has to remove excess animals from an HMA (emphasis added)), the
court did notand could not in that contextopine as to whether a party may
compel BLM to take immediate action under section 706(1) of the APA where the
agency has yet to exercise its discretion. Accordingly, because it is indisputable
that BLM has not yet satisfied the statutory prerequisites in this case that could
possibly trigger any duty for BLM to remove wild horses or to take other actions
deemed necessary to maintain a thriving natural ecological balance in these HMAs,
the States reliance on In Defense of Animals is severely misplaced and would only
applyif at allonce BLM has made the necessary determinations and the State
46
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or some other party files a new lawsuit seeking review of that subsequent decision
under section 706(2) of the APA.10
CONCLUSION
For the foregoing reasons, the Court should affirm the district courts ruling
and dismiss the States petition for review for failing to state a claim under the
APA for which relief may be granted.
STATEMENT OF REASONS SUPPORTING
ORAL ARGUMENT REQUEST
Intervenors hereby request oral argument because this appeal raises an
important issue of first impression in this Circuit. In addition, because the appeal
involves complex legal issues, Intervenors believe the Court would benefit from
hearing oral argument in this matter.
10
The district court correctly distinguished In Defense of Animals because in that

case BLM had made the two required determinations on overpopulation and the
need for action to remove excess animals to preserve and maintain a thriving
natural ecological balance. Aplt. App. Vol. II at 323. In addition, the district
court explained that while AMLs can function as a necessary and informative
trigger to alert BLM to a population imbalance, as the Ninth Circuit had
explained in In Defense of Animals, the district court rejected the States insistence
that this fact somehow means that AMLs alone are sufficient to require BLM
initiate the removal process because [s]uch a conclusion is simply not supported
by 1333 of the Wild Horse Act, Aplt. App. Vol. II at 333-34, as Intevenors have
explained above, see supra at 26-36.
47
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Respectfully submitted
/s/ William S. Eubanks II
245 Cajetan Street
(970) 703-6060 / (202) 588-5049 (fax)
Katherine A. Meyer
4115 Wisconsin Avenue NW, Suite 210
Washington, DC 20016
(202) 588-5206 / (202) 588-5049 (fax)
kmeyer@meyerglitz.com
February 12, 2016
Attorneys for Intervenors-Appellees
48
Document: 01019570525
Page: 60
CERTIFICATE OF COMPLIANCE
This brief complies with the type and volume limitations of Fed. R. App. P.
32(a)(7). The brief contains 11,138 words.
/s/ William S. Eubanks II____
245 Cajetan Street
(970) 703-6060 / (202) 588-5049 (fax)
CERTIFICATE OF SERVICE
I, William S. Eubanks II, hereby certify that on February 12, 2016, I served
copies of Intervenors-Appellees Answering Brief on all counsel of record in this
case by way of electronic mail (ECF filing)in addition to submitting the requisite
number of identical hard copies to the Courtand I further certify that all parties
to this case are registered to receive ECF filings in this matter.
/s/ William S. Eubanks II____
245 Cajetan Street
(970) 703-6060 / (202) 588-5049 (fax)
49
Document: 01019570525
Page: 61
CERTIFICATE OF PRIVACY REDACTION

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

I hereby certify that the digital submissions have been scanned for viruses
with the most recent version of a commercial virus scanning program (Symantec
Endpoint Protection, Version 12.1) and according to the program, are free of
viruses.
245 Cajetan Street
(970) 703-6060 / (202) 588-5049 (fax)
50

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Appellate Case: 15-8041

Date Filed: 02/12/2016

Appellate Case: 15-8041

Date Filed: 02/12/2016

CORPORATE DISCLOSURE STATEMENT

Appellate Case: 15-8041

Date Filed: 02/12/2016

STATUTORY AND REGULATORY FRAMEWORK ................................2

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

PROCEEDINGS IN THE DISTRICT COURT ............................................10

SUMMARY OF ARGUMENT ..............................................................................13

STANDARD OF REVIEW ...........................................................................14

THE STATE HAS FAILED TO IDENTIFY A COGNIZABLE FINAL

THE STATES REQUESTED RELIEF UNDER SECTION 706(1) OF

Appellate Case: 15-8041

Date Filed: 02/12/2016

A. BLMs Management Of Wild Horses, Including Decisions About Whether ..

Appellate Case: 15-8041

Date Filed: 02/12/2016

Am. Horse Protection Assn v. Frizzell,

Appellate Case: 15-8041

Date Filed: 02/12/2016

Colo. Wild Horse and Burro Coal., Inc. v. Salazar,

Appellate Case: 15-8041

Date Filed: 02/12/2016

Lujan v. Natl Wildlife Fedn,

Appellate Case: 15-8041

Date Filed: 02/12/2016

Appellate Case: 15-8041

Date Filed: 02/12/2016

Appellate Case: 15-8041

Date Filed: 02/12/2016

Appropriate Management Level

Administrative Procedure Act

Bureau of Land Management

Federal Land Policy and Management Act

Herd Management Area

National Environmental Policy Act

Resource Management Plan

Appellate Case: 15-8041

Date Filed: 02/12/2016

STATEMENT OF PRIOR OR RELATED APPEALS

Appellate Case: 15-8041

Date Filed: 02/12/2016

STATEMENT OF THE ISSUE

Appellate Case: 15-8041

Date Filed: 02/12/2016

STATEMENT OF THE CASE

STATUTORY AND REGULATORY FRAMEWORK

The Wild Free-Roaming Horses and Burros Act

Horse Preservation Campaign, The Cloud Foundation, Return To Freedom, Carol

Appellate Case: 15-8041

Date Filed: 02/12/2016

Appellate Case: 15-8041

Date Filed: 02/12/2016

Under the Wild Horse Acts implementing regulations, an HMA is

Appellate Case: 15-8041

Date Filed: 02/12/2016

Appellate Case: 15-8041

Date Filed: 02/12/2016

area in order to preserve and maintain a thriving natural ecological balance . . . in

The Taylor Grazing Act