Western Rangeland Conservation Association et al v. Jewell et al
MEMORANDUM DECISION AND ORDER DENYING PLAINTIFFS REQUEST FOR MANDATORY INJUNCTIVE RELIEF UNDER THE ADMINISTRATIVE PROCEDURE ACT AND DISMISSING THE ACTION. Signed by Judge Jill N. Parrish on 07/11/17. (jlw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
PEARSON RANCH, YARLDEY CATTLE
CO., RUNNIN C FAMILY PARTNERSHIP
LP, WINTCH & CO. LTD., MATTHEW
WOOD, MARILYN WOOD, PLATT
LIVESTOCK LLC, SAGE VALLEY
HOLDINGS, ESCALANTE FARMS, LLC,
DUSTIN HUNTINGTON, TERRIL HUNT,
and MARK EVANS,
RYAN ZINKE, in his official capacity as
Secretary of the Interior; MICHAEL D.
NEDD, in his official capacity as acting
director of the U.S. Bureau of Land
Management; EDWIN L. ROBERSON, in his
official capacity as Utah State Director of the
Bureau of Land Management; and UTAH
BUREAU OF LAND MANAGEMENT,
AMERICAN WILD HORSE
PRESERVATION CAMPAIGN, THE
CLOUD FOUNDATION, RETURN TO
FREEDOM, JOHN STEELE, and LISA
MEMORANDUM DECISION AND
ORDER DENYING PLAINTIFFS’
REQUEST FOR MANDATORY
INJUNCTIVE RELIEF UNDER THE
ADMINISTRATIVE PROCEDURE ACT
AND DISMISSING THE ACTION
Case No. 2:14-cv-00327-JNP
District Judge Jill N. Parrish
Now before the court is Plaintiffs’ demand for injunctive relief pursuant to 5 U.S.C. §
706(1) of the Administrative Procedure Act (“APA”). (See Docket Nos. 2, 51, 103). 1
This lawsuit was initiated in April of 2014 by Plaintiffs Western Rangeland Conservation
Association; Pearson Ranch; Yardley Cattle Company; Runnin C Family Partnership LP; Wintch
& Co. Ltd.; Joel Hatch; R. Larson Sheep Company LLC; Matthew Wood; Marilyn Wood; Platt
Livestock LLC; Sage Valley Holdings; Escalante Farms, LLC; 2 Dustin Huntington; Terril Hunt;
and Mark Evans against Defendants Sally Jewell, then-Secretary of the Interior; the United
States Department of the Interior; Neil Kornze, then-Director of the United States Bureau of
Land Management; and Juan Palma, then-Utah State Director of the Bureau of Land
Management 3 (collectively, “Federal Defendants” or “BLM”). On August 27, 2014, the court
In their complaint, Plaintiffs actually request declaratory, injunctive, and mandamus relief under the APA, 5 U.S.C.
§ 706(1), the Declaratory Relief Act, 28 U.S.C. § 2201, and the Mandamus Act, id. § 1361. Plaintiffs’ briefing,
however, only elaborates on claims under the APA. Moreover, the remedy available under 5 U.S.C. § 706(1) of the
APA “technically precludes . . . [an] alternative request for a writ of mandamus, although the mandatory injunction
is essentially in the nature of mandamus relief.” Mt. Emmons Mining Co. v. Babbitt, 117 F.3d 1167, 1170 (10th Cir.
1997) (citations omitted) (citing W. Shoshone Bus. Council v. Babbitt, 1 F.3d 1052, 1059 (10th Cir. 1993); Estate of
Smith v. Heckler, 747 F.2d 583, 591 (10th Cir. 1984)). For these reasons, the court addresses only Plaintiffs’ claims
under the APA.
Additionally, the court notes that the Tenth Circuit typically refers to the remedy provided by § 706(1)
of the APA as a “mandatory injunction” to distinguish it from a writ of mandamus. See, e.g., Estate of Smith v.
Heckler, 747 F.2d 583, 591 (10th Cir. 1984). However, as noted above, “the mandatory injunction [available under
the APA] is essentially in the nature of mandamus relief.” Mt. Emmons Mining Co., 117 F.3d at 1170; see also
Norton v. So. Utah Wilderness All., 542 U.S. 55, 63–64 (2004) (explaining that § 706(1) “carried forward the
traditional practice prior to its practice, when judicial review was achieved through use of . . . prerogative writs—
principally writs of mandamus under the All Writs Act . . . .”). Indeed, the unlawful withholding or unreasonable
delay of official action is evaluated under essentially the same standard whether a plaintiff seeks a writ of mandamus
under the Mandamus Act or mandatory injunctive relief under the APA. Yu v. Brown, 36 F. Supp. 2d 922, 928–29
(D.N.M. 1999) (“[I]n evaluation claims of unreasonable agency delay which seek either mandamus or a mandatory
injunction under the APA, or both, the Tenth Circuit applies the same principles and standards.”). As a result,
certain cases cited by the court in this opinion dealing with unreasonable delay of agency action use the term
“mandamus” and refer to the issuance of mandamus. As the analyses for mandamus relief and mandatory injunctive
relief under the APA are essentially the same, the court has left the term in place.
The original complaint included Plaintiff Michael Christensen. (Docket No. 2). In an amended complaint filed
January 30, 2015, he was replaced by Plaintiff Escalante Farms, LLC. (Docket No. 51).
Since the initiation of this action, Ryan Zinke has replaced Sally Jewell as Secretary of the Interior, Michael Nedd
has replaced Neil Kornze as acting Director of the United States Bureau of Land Management, and Edwin L.
granted a motion to intervene as defendants filed by the American Wild Horse Preservation
Campaign, the Cloud Foundation, Return to Freedom, John Steele, and Lisa Friday (collectively,
“Defendant-Intervenors”) pursuant to FED. R. CIV. P. 24(a). (Docket No. 40).
Plaintiffs are holders of federal grazing permits issued pursuant to the Taylor Grazing
Act, see 43 U.S.C. § 315b, which allow them to graze their livestock on public rangelands
throughout central and southern Utah. Plaintiffs contend that BLM has failed to perform certain
ministerial duties under the Wild Free-Roaming Horses and Burros Act of 1971 (“WHA”), 16
U.S.C. §§ 1331, et seq., and claim that BLM’s failure has adversely impacted their ability to
utilize their grazing allotments. Specifically, Plaintiffs argue that BLM has failed to properly
manage the excess population of wild horses that directly compete with livestock for forage and
water on public lands and damage the rangeland ecosystem. Plaintiffs also allege that BLM has
failed to properly remove excess wild horses present on lands owned by the State of Utah and
private landowners. Thus, Plaintiffs ask this court to compel BLM to perform its statutory duties
under the WHA to remove excess wild horses from both public and private lands. 4
Roberson has replaced Juan Palma as the State Director of the Bureau of Land Management for Utah. Under FED. R.
CIV. P. 25(d), each public officer’s successor “is automatically substituted as a party” regardless of court order.
The court pauses to note that all parties in this case, including amici, have submitted or relied upon affidavits and
exhibits that have not been included in the administrative record. Ordinarily, courts reviewing final agency action
under the APA are strictly limited to the administrative record and may refer to extra-record materials only in
“extremely limited circumstances.” Citizens for Alternatives to Radioactive Dumping v. U.S. Dep’t of Energy, 485
F.3d 1091, 1096 (10th Cir. 2007); see also Fed. Power Comm’n v. Transcon. Gas Pipe Line Corp., 423 U.S. 326,
331 (1976); Am. Mining Congress v. Thomas, 772 F.2d 617, 626 (10th Cir. 1985). However, where a court must
decide whether an agency has “unlawfully withheld or unreasonably delayed” required action under 5 U.S.C. §
706(1), “there is no final agency action to demarcate the limits of the record.” Friends of the Clearwater v.
Dombeck, 222 F.3d 552, 560 (9th Cir. 2000): Sierra Club v. U.S. Dep’t of Energy, 26 F. Supp. 2d 1268, 1271 (D.
Colo. 1998) (“Extra record evidence may be allowed in cases where an agency is being sued for failure to act if the
record before the court is insufficient . . . to determine whether the agency unlawfully withheld compliance with a
statutory mandate.”). Thus, judicial review pursuant to § 706(1) is “not limited to the record as it existed at any
single point in time” and may require evaluation of extra-record materials. See Friends of the Clearwater, 222 F.3d
Here, the submitted extra-record materials establish the current state of the range, BLM’s conduct since the
beginning of litigation, as well as equitable factors regarding the consequence of delayed removal, and are therefore
critical to the court’s determination of whether mandatory injunctive relief should issue in this case. Thus, the
reasons for considering extra-record materials in this case are plainly analogous to many of the recognized
THE WILD FREE-ROAMING HORSES AND BURROS ACT OF 1971
Plaintiffs’ challenge centers on the duties imposed on BLM by the WHA, which delegates
the management of free-roaming wild horses and burros to the Department of the Interior and
BLM. Development and passage of the WHA was prompted by the rapid disappearance of wild
horse and burro populations from western rangelands. See 16 U.S.C. § 1331. Congressional
inquiry found that grazing land previously available to wild horses and burros was “fenced off
for private use, while the animals were slaughtered for sport and profit.” Mountain States Legal
Found. v. Hodel, 799 F.2d 1423, 1425 (10th Cir. 1986). The once-prevalent herds of wild horses
and burros were hunted to the verge of extinction, and the “remaining animals were driven to
marginal, inhospitable grazing areas.” Id.
To preserve these “living symbols of the historic and pioneer spirit of the West” from
“capture, branding, harassment, or death,” Congress enacted the WHA, which designated all wild
free-roaming horses and burros as “integral part[s] of the natural system of the public lands,” 16
U.S.C. § 1331, and entrusted their protection and management to the Secretary of the Interior
and BLM, id. § 1333(a) (placing all wild horses and burros under the jurisdiction of the Secretary
of the Interior and directing that the animals be protected and managed as “components of the
public lands”). In essence, the Act is “a land-use regulation enacted by Congress to ensure the
survival of a particular species of wildlife.” Mountain States, 799 F.2d at 1428.
exceptions to the usual restriction to the administrative record. Cf. Am. Mining Congress, 772 F.2d at 626 (listing
possible exceptions, including “the agency action is not adequately explained and cannot be reviewed properly
without considering the cited materials,” “the case is so complex and the record so unclear that the reviewing court
needs more evidence to enable it to understand the issues,” and “evidence coming into existence after the agency
acted demonstrates that the actions were right or wrong”). For these reasons, and because there has been only scant
objection to the court’s use of these materials, the court considers the cited extra-record materials for purposes of
this decision. See Friends of the Clearwater, 222 F.3d at 560; Am. Littoral Soc’y v. U.S. EPA Region, 199 F. Supp.
2d 217, 228 (D.N.J. 2002).
Several years after passage of the WHA, Congress found that its attempt to prevent the
decline of wild horses and burros had worked far too well. By 1978, the wild horse and burro
populations had rebounded and redoubled, and now threatened to disrupt the delicate ecological
balance on western rangelands. See Am. Horse Prot. Ass’n, Inc. v. Watt, 694 F.2d 1310, 1315–16
(D.C. Cir. 1982). A congressional report calling for amendments to the WHA explained:
In the case of wild horses and burros in the Western States, Congress acted in
1971 to curb abuses which posed a threat to their survival. The situation now
appears to have reversed, and action is needed to prevent a successful program
from exceeding its goals and causing animal habitat destruction.
Id. at 316 (quoting H.R. Rep. No. 95-1122, 95th Cong., 2d Sess. 23 (1978)). Based on these
findings, Congress amended the WHA
to avoid excessive costs in the administration of the Act, and to facilitate the
humane adoption or disposal of excess wild free-roaming horses and burros which
because they exceed the carrying capacity of the range, pose a threat to their own
habitat, fish, wildlife, recreation, water and soil conservation, domestic livestock
grazing, and other rangeland values.
43 U.S.C. § 1901(a)(6). The 1978 amendments to the WHA “struck a new balance—or at least
clarified the balance Congress intended to strike in 1971—between protecting wild horses and
competing interests in the resources of the public ranges.” Am. Horse Prot. Ass’n, 694 F.2d at
1316. As amended, the Act’s central goal is not only to protect wild horse and burro populations,
but to “achieve and maintain a thriving natural ecological balance on the public lands.” 16
U.S.C. § 1333(a). Thus, BLM is tasked with harmonizing the protection of wild horses and
burros and the preservation of other rangeland values and uses.
To that end, the WHA requires BLM to compile and maintain “current inventor[ies] of
wild horses and burros on given areas of the public lands.” Id. § 1333(b)(1); 43 C.F.R. § 4710.2.
Inventories of wild horse and burro herds are used to designate appropriate herd management
areas (“HMAs”), 5 see 43 C.F.R. § 4710.3-1, and to “determine appropriate management levels”
(“AMLs”), 16 U.S.C. § 1333(b)(1). “An AML is expressed as a population range with both an
upper and lower limit, within which wild horses or burros can be managed for the long term.”
Am. Wild Horse Pres. Campaign v. Jewell, 847 F.3d 1174, 1178 (10th Cir. 2016) (quotations and
alterations omitted). Where a given wild horse or burro population exceeds its designated AML,
BLM must decide whether to bring the herd back within AML “by the removal or destruction of
excess animals, or other options (such as sterilization, or natural controls on population levels).” 6
16 U.S.C. § 1333(b)(1). “In this way, [the] AML is a vehicle used to move towards a thriving
natural ecological balance, and a trigger by which the BLM is alerted to address population
imbalance.” In Def. of Animals v. U.S. Dep’t of Interior, 751 F.3d 1054, 1063–64 (9th Cir. 2014)
(alterations omitted). In sum, “[t]o comply with the Act’s directive to manage wild horses ‘in a
manner that is designed to achieve and maintain a thriving natural ecological balance on the
public lands,’ . . . the BLM (a) maintains a current inventory of wild horses in each HMA, (b)
determines the [AML] of wild horses that each HMA can sustain, and (c) determines the method
of achieving the designated AML.” Wyoming v. U.S. Dep’t of Interior, 839 F.3d 938, 940 (10th
Cir. 2016) (quoting 16 U.S.C. § 1333(a) and citing id. § 1333(b)(1); 43 C.F.R. §§ 4710.2,
4710.3-1); see also Am. Wild Horse Pres. Campaign, 847 F.3d at 1178.
Sections Three and Four of the Act delineate specific actions that BLM is required to
undertake as part of its management of wild horse and burro populations. Section Three deals
with wild horse and burro herds present on public lands and requires BLM to “immediately
BLM also designates “herd areas” known as “HAs,” which are generally not managed for wild horse populations.
See 43 C.F.R. § 4710.4 (“Management of wild horses and burros shall be undertaken with the objective of limiting
the animals’ distribution to herd areas.”). Thus, the AML of a given HA is typically zero.
Though explicitly contemplated in the statute and associated regulations, see 16 U.S.C. § 1333(b)(2)(C), “Congress
has barred the BLM from euthanizing healthy excess horses for which there is no adoption demand . . . by
continually declining to appropriate funds for the destruction of these animals.” In Def. of Animals, 751 F.3d at 1066
n.20 (citing Pub. L. No. 111-88, 123 Stat. 2904, 2907 (2009)).
remove excess animals from the range” once BLM determines (1) that a population of wild
horses on a given HMA exceeds its established AML and (2) “that action is necessary to remove
excess animals.” 16 U.S.C. § 1333(b)(2); see also Wyoming, 839 F.3d at 944 (delineating the
two-step process that triggers BLM’s ministerial duty to “immediately remove” excess wild
horses). Section Four requires BLM to arrange for the removal of wild horses and burros that
stray off of public land and onto adjacent private land. See 16 U.S.C. § 1334.
II. INTERACTION OF WHA WITH FLPMA AND NEPA
BLM makes management determinations and conducts necessary removals in compliance
with both the Federal Land Policy and Management Act of 1976 (“FLPMA”), 43 U.S.C. § 1701,
et seq., and the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. § 4321, et seq.;
see also Wyoming v. U.S. Dep’t of Interior, No. 14-cv-0248, 2015 WL 12916334, at *2 (D. Wyo.
Apr. 21, 2015) (unpublished), aff’d, 839 F.3d 938 (10th Cir. 2016).
FLPMA directs BLM to “manage public lands under principles of multiple use and
sustained yield” and, to that end, requires the development of both comprehensive resource
inventories and broad, programmatic resource management plans for public lands. 43 U.S.C. §
1732(a); S. Utah Wilderness All. v. Norton, 542 U.S. 55, 58 (2004) (explaining that FLPMA
mandates “a dual regime of inventory and planning”). BLM establishes HMAs, sets AMLs
within those HMAs, and conducts all wild horse and burro management activities “in accordance
with approved land use plans prepared pursuant to” FLPMA. See 43 C.F.R. §§ 4710.1, 4710.3-1;
Am. Wild Horse Pres. Campaign, 847 F.3d at 1178 (outlining BLM’s interrelated management
under the WHA and FLPMA).
NEPA requires BLM to “pause before committing resources to a project and consider the
likely environmental impacts of the preferred course of action as well as reasonable alternatives.”
N.M. ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 703 (10th Cir. 2009) (citing 42
U.S.C. § 4331(b)). Thus, before conducting gathers, removals, or other management actions
related to wild horse and burro populations on public lands, BLM prepares an environmental
assessment (“EA”) to evaluate potential environmental impacts, to outline the agency’s proposed
course of action and reasonable alternatives, and to provide for public comment on the agency’s
proposal. See Friends of Animals v. Sparks, 200 F. Supp. 3d 1114, 1119 (D. Mont. 2016); Fund
for Animals, Inc. v. U.S. Bureau of Land Mgmt., 460 F.3d 13, 16 (D.C. Cir. 2006); 40 C.F.R. §§
1501.4, 1508.9 (describing the purpose and form of EAs generally). If adopted, the proposed
course of action is authorized in a document known as a decision record (“DR”).
At issue in this case are eight HMAs, a single HA, and certain private lands encompassed
within or lying adjacent to public lands. The eight HMAs under scrutiny here are known as
Frisco, Four-Mile, Bible Springs, Sulphur, Choke Cherry, Muddy Creek, North Hills, and
Swasey. Together, the boundaries of these HMAs encompass just shy of one million acres of
public and private land. The lone HA at issue, known as Blawn Wash, covers nearly 63,000
additional acres. These arid rangelands make up large swaths of central and southern Utah and
are home to a fragile and complex ecosystem that includes substantial herds of wild horses and
burros, as well as numerous other species of wild animals and plants. The HMAs and HA at issue
also provide forage and water for significant numbers of private livestock and therefore form an
integral component of the local agricultural economy. Since the 1971 passage of the WHA and
1978 amendments thereto, BLM has been tasked with balancing these often conflicting interests.
That conflict has bubbled under the surface or boiled over in many western states, including
Utah, where the federal government manages a large percentage of available rangeland. The
situation has grown especially severe in recent decades, as BLM has struggled to keep apace of
the ever-increasing wild horse and burro populations. Currently, the number of wild horses and
burros present on Utah’s rangelands is nearly triple the collective AML maximum for the region.
Overpopulation is similarly severe across nine other western states. (See Docket No. 107-1, at 2).
Frustrated with the state of the range and BLM’s management efforts, Plaintiffs initiated
this lawsuit April 30, 2014 to compel immediate removal of excess wild horses from public and
private lands. (Docket Nos. 2 (original complaint), 51 (first amended complaint)). The
administrative record was filed on June 12, 2015, (Docket Nos. 65, 66), and updated on
November 11, 2015 and May 16, 2016, (Docket Nos. 81, 94). Plaintiffs filed an opening brief,
requesting mandatory injunctive relief under 5 U.S.C. § 706(1), on August 17, 2016. (Docket No.
103). Several amicus curiae briefs were filed on behalf of Plaintiffs by various parties, including
the State of Utah, the Public Lands Council, Western AgCredit ACA, and Beaver, Iron, and
Emery Counties, as well as certain associated conservation districts located in central and
southern Utah. (Docket Nos. 102, 105, 107, 115). Federal Defendants responded on October 28,
2016. (Docket No. 117). Defendant-Intervenors responded the same day. (Docket No. 120).
Plaintiffs replied to Federal Defendants and to Defendant-Intervenors on November 21, 2016.
(Docket Nos. 122, 123). Federal Defendants filed a limited surreply on January 30, 2017.
(Docket No. 135). The court held oral argument on the request for mandatory injunctive relief on
April 11, 2017. (Docket No. 142). The court now considers the arguments of the parties under
authority granted by 5 U.S.C. §§ 702, 706, and 28 U.S.C. § 1331.
STANDARD OF REVIEW
Plaintiffs bring their claim for injunctive relief under § 706(1) of the Administrative
Procedure Act (“APA”), which requires a reviewing court to “compel agency action unlawfully
withheld or unreasonably delayed.” 7 See 5 U.S.C. § 706(1). “[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.” Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004) (emphasis in
original). To that end, Plaintiffs assert that BLM has “unlawfully withheld” and “unreasonably
delayed” action to remove excess wild horses from public and private lands in violation of the
WHA. See 16 U.S.C. § 1333(b)(2) (requiring removal of excess wild horses and burros from
public lands upon certain triggering conditions); id. § 1334 (requiring BLM to “arrange to have
[stray wild horses and burros] removed” from private lands upon request).
Although Plaintiffs insist that BLM has both “unlawfully withheld” and “unreasonably
delayed” action under the WHA, (see Docket No. 122, at 13–25), the two terms are mutually
exclusive. Each applies to a distinct statutory structure and is evaluated under a distinct standard.
See Forest Guardians v. Babbit, 174 F.3d 1178, 1189 (10th Cir. 1999). Consequently, in order to
properly evaluate the merits of Plaintiffs’ claims, the court must determine whether BLM’s
alleged failure to remove excess wild horses under the WHA is properly characterized as an
“unlawful with[olding]” or an “unreasonabl[e] delay” of agency action under the APA. See 5
U.S.C. § 706(1).
ACTION “UNLAWFULLY WITHHELD” AND ACTION “UNREASONABLY
DELAYED” UNDER 5 U.S.C. § 706(1)
Plaintiffs briefly suggest that their claims may be reviewable under 5 U.S.C. § 706(2)(A), which requires a
reviewing court to “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 the law,” but provide no further explanation.
(Docket No. 103, at 14). Any claims Plaintiffs may have under § 706(2)(A) are therefore waived. See FED. R. APP.
PROC. 28(a)(8)(A) (requiring that opening brief include “appellant’s contentions and the reasons for them, with
citations to the authorities and parts of the record on which the appellant relies”); Olenhouse v. Commodity Credit
Corp., 42 F.3d 1560, 1580 (10th Cir. 1994) (“Reviews of agency action in the district court must be processed as
appeals. In such circumstances, the district court should govern itself by referring to the Federal Rules of Appellate
Procedure.”); Harts v. Johanns, 433 F. Supp. 2d 1251, 1255–56 (D. Kan. 2006) (declining to address constitutional
claims under APA where plaintiff failed to raise the claims in opening brief).
The Tenth Circuit has articulated the distinction between action that is “unlawfully
withheld” and action that is “unreasonably delayed” under § 706(1) as follows:
[I]f an agency has no concrete deadline establishing a date by which it must act,
and instead is governed only by general timing provisions—such as the APA’s
general admonition that agencies conclude matters presented to them “within a
reasonable time,” see 5 U.S.C. § 555(b)—a court must compel only action that is
delayed unreasonably. Conversely, when an entity governed by the APA fails to
comply with a statutorily imposed absolute deadline, it has unlawfully withheld
agency action and courts, upon proper application, must compel the agency to act.
Thus, the distinction between agency action “unlawfully withheld” and
“unreasonably delayed” turns on whether Congress imposed a date-certain
deadline on agency action. . . . In our opinion, when an agency is required to
act—either by organic statute or by the APA—within an expeditious, prompt, or
reasonable time, § 706 leaves in courts the discretion to decide whether agency
delay is unreasonable. However, when Congress by organic statute sets a specific
deadline for agency action, neither the agency nor any court has discretion. The
agency must act by the deadline. If it withholds such timely action, a reviewing
court must compel the action unlawfully withheld.
Forest Guardians, 174 F.3d at 1190.
Applying this standard to Sections Three and Four of the WHA, the court can find no
“absolute” or “date-certain deadline” by which the agency must act upon removal
determinations. See id. Although Section Three requires that BLM “immediately remove” excess
wild horses and burros when certain conditions are met, it does not specify any deadline or
delineate any timeframe for completion of required removals. See Am. Horse Prot. Ass’n, Inc. v.
Watt, 694 F.2d 1310, 1316 (D.C. Cir. 1982) (interpreting the 1978 Amendments to require that
excess horses “be removed expeditiously” (emphasis in original)). Though obviously more
urgent in tone, the command to “immediately remove” carries no more of a specific deadline
than the “APA’s general admonition that agencies conclude matters presented to them ‘within a
reasonable time.’” See Forest Guardians, 174 F.3d at 1190 (quoting 5 U.S.C. § 555(b)). Instead,
the term “immediately” provides a measure by which the reasonableness of any delay may be
Similarly, Section Four imposes no “absolute” or “date-certain deadline” for removal
actions from private lands. See Forest Guardians, 174 F.3d at 1190. The Act requires only that
BLM “arrange to have [stray] animals removed” from private lands upon notice from affected
landowners. See 16 U.S.C. § 1334. Moreover, BLM has interpreted the Act to require prompt
action without a precise deadline. See 43 C.F.R. § 4720.2-1 (requiring authorized BLM officers
to “remove stray wild horses and burros from private land as soon as practicable” (emphasis
Because neither Section Three nor Section Four impose explicit statutory deadlines that
would warrant the application of the “unlawfully withheld” standard, the court will treat BLM’s
alleged failures to act under those sections as action “unreasonably delayed” and apply the
corresponding standard. 8 See Forest Guardians, 174 F.3d at 1190.
STANDARD OF REVIEW FOR AGENCY ACTION “UNREASONABLY
DELAYED” UNDER 5 U.S.C. § 706(1)
Although the Tenth Circuit has not definitively adopted a standard by which courts may
evaluate the reasonableness of agency delay under 5 U.S.C. § 706(1), it has favorably cited to the
District of Columbia Circuit’s so-called TRAC factor test, see Telecomms. Res. & Action Ctr. v.
Plaintiffs suggest that the WHA and BLM’s own decision-making processes have established a “concrete
deadline” for completion of removal actions, warranting application of the strict “unlawfully withheld” standard.
(Docket No. 122, at 9–10). In essence, they argue that the Section Three’s mandate to “immediately remove” excess
animals implies that any delay in removal is intolerable. See 16 U.S.C. § 1333(b)(2) (emphasis added). As will be
explained further below, such a read of the statute is at odds with existing interpretations of Section Three and the
undeniable administrative and practical realities of gathering and removing wild animals from public lands. See,
e.g., Am. Horse Prot. Ass’n, 694 F.2d at 1316–17 (interpreting the command to “immediately remove” under Section
Three to require BLM to act “expeditiously” and to align with a congressional expectation of “prompt administrative
action to deal with wild horse overpopulations” (emphasis omitted)). Insofar as Plaintiffs suggest that BLM’s own
internal guidelines regarding the issuance of gather and removal decisions provide a de facto deadline for removal,
(see Docket No. 122, at 15–16 (citing BLM handbook)), they have provided no authority that would indicate that
such guidelines are legally binding or otherwise actionable under the APA.
FCC, 750 F.2d 70 (D.C. Cir. 1984) [TRAC], which is widely accepted as a touchstone for
evaluating such claims, see Qwest Comm’ns Intern., Inc. v. FCC, 398 F.3d 1222, 1238–39 (10th
Cir. 2005) (citing the D.C. Circuit’s TRAC jurisprudence in the context of a claim of
“unreasonably delayed” agency action). The Tenth Circuit has emphasized that “a court-imposed
deadline for agency action constitutes an extraordinary remedy,” id. at 1238–39 (citing In re Int’l
Chem. Workers Union, 958 F.2d 1144, 1149 (D.C. Cir. 1992)), and has articulated the following
five factors (drawn from TRAC jurisprudence) for consideration:
(1) [T]he extent of the delay, (2) the reasonableness of the delay in the context of
the legislation authorizing agency action, (3) the consequences of the delay, and
(4) administrative difficulties bearing on the agency’s ability to resolve an issue.
To this we might expressly add [(5)] consideration of the complexity of the task
envisioned by a court’s remand order.
Id. at 1239. The court will explain and apply this standard in more detail below.
The court will now address the arguments of the parties under jurisdiction granted by 5
U.S.C. §§ 701–06 and 28 U.S.C. § 1331. First, the court must resolve two jurisdictional
challenges raised by Defendant-Intervenors. Second, the court will address Plaintiffs’ claims
under Section Three of the WHA. Finally, the court will address Plaintiffs’ claims under Section
Four of the WHA.
DEFENDANT-INTERVENORS’ JURISDICTIONAL CHALLENGES
Before proceeding to the merits of Plaintiffs’ claims, the court must address two
challenges to its subject matter jurisdiction raised by Defendant-Intervenors. They argue that all
of Plaintiffs’ claims regarding the eight HMAs and single HA at issue are either moot or unripe,
and therefore this court lacks subject matter jurisdiction over the claims. The court addresses
Defendant-Intervenors’ mootness argument first, then their ripeness argument.
A. MOOTNESS OF CERTAIN CLAIMS UNDER SECTION THREE
First, Defendant-Intervenors argue that any claims regarding pre-2012 determinations 9 of
the need to gather and remove wild horses are moot because those gathers and removals have
been completed. They insist that “there is no point in ordering an action that has already taken
place.” (Docket No. 120, at 29 (quoting So. Utah Wilderness All. v. Smith, 110 F.3d 724, 728
(10th Cir. 1997) (alterations omitted)). If Plaintiffs’ claims challenged the gathers or removals
themselves, the court would be inclined to agree. See Fund for Animals, Inc. v. U.S. Bureau of
Land Mgmt., 460 F.3d 13, 22 (D.C. Cir. 2006) (holding that challenges to completed gathers are
moot and therefore not justiciable); Cloud Found., Inc. v. Salazar, 999 F. Supp. 2d 117, 127
(D.D.C. 2013) (holding that a challenge to categorical exclusion based on previously completed
gathers was moot). But Plaintiffs do not challenge the pre-2012 gathers and removals in and of
themselves—instead, they argue that BLM has a current duty to remove wild horses because of
findings and determinations in the EAs and DRs for the pre-2012 gathers. If no such duty exists,
then Plaintiffs’ claims fail as a matter of law, not as a matter of mootness. In other words, the
question before the court is not whether claims regarding the pre-2012 gathers are moot, but
whether Plaintiffs have stated a legally cognizable claim for injunctive relief. Accordingly, the
court holds that these claims are not moot.
B. RIPENESS OF CERTAIN CLAIMS UNDER SECTION THREE
In a similar vein, Defendant-Intervenors argue that Plaintiffs’ claims regarding post-2012
determinations of the need for removal 10 are not ripe because BLM is still in the process of
implementing those removals. They assert that each DR contemplated a “phased-in” removal
These determinations are found in EAs and DRs authorizing the removal of excess wild horses from the Muddy
Creek HMA, the North Hills HMA, Choke Cherry HMA, and Sulphur HMA.
These determinations are found in EAs and DRs authorizing removal of excess wild horses from the Bible Springs
Complex, the Frisco HMA, and the Swasey HMA.
approach that will not be complete for several years and urge that any decision regarding BLM’s
implementation of this approach would be premature. As with the mootness argument disposed
of above, the court must disagree. Though Plaintiffs hint at challenges to the specific terms of the
post-2012 DRs, (see Docket No. 123, at 21), the broad thrust of their challenge is that BLM’s
“phased-in” approach does not fulfill the WHA’s mandate to “immediately remove” excess
animals and, as a result, BLM is illegally delaying compliance with that mandate, (see id. (“[A]
phased-in approach of six to ten years, on its face, does not satisfy Section 1333(b)(2)’s
requirement of ‘immediate removal.’”)). This challenge need not wait for the completion of
BLM’s “phased-in” approach because Plaintiffs argue that the approach itself fails to fulfill
BLM’s duty under the WHA. Cf. Envtl. Def. Fund, Inc. v. Hardin, 428 F.2d 1093, 1100 (D.C. Cir.
1970) (“At some point administrative delay amounts to a refusal to act, with sufficient finality
and ripeness to permit judicial review.”). Whether BLM is under an obligation to “immediately”
remove excess animals from certain HMAs and whether the agency’s “phased-in” approach
actually fulfills that obligation are not “abstract disagreements” the court must avoid. See Rural
Water Dist. No. 2 v. City of Glenpool, 698 F.3d 1270, 1275 (10th Cir. 2012). Thus, the court
concludes that a ripeness analysis is inapplicable here.
As both of Defendant-Intervenors’ jurisdictional challenges are unavailing, the court now
turns to the merits of Plaintiffs’ claims against BLM.
PLAINTIFFS’ CLAIMS REGARDING REMOVAL FROM PUBLIC LAND
UNDER SECTION THREE OF THE WHA
First, the court addresses Plaintiffs’ claims under Section Three of the WHA. As noted
above, Section Three imposes a statutory duty on BLM to “immediately remove excess animals
from the range” when certain conditions are met. See 16 U.S.C. § 1333(b)(2). The Tenth Circuit
has recently delineated the conditions that trigger this statutory duty in Wyoming v. United States
Department of Interior, 839 F.3d 938 (2016). In that case, the State of Wyoming sued BLM,
arguing that BLM had failed to remove excess wild horses from certain HMAs within the State’s
boundaries, unlawfully withholding or unreasonably delaying action required by the WHA. See
id. at 942 (citing 5 U.S.C. § 706(1)). The State argued that because BLM had determined that
wild horse populations exceeded the upper limit of the AML established for each HMA, the
statutory duty under § 1333(b)(2) was triggered, requiring BLM to “immediately remove” excess
wild horses from the overpopulated HMAs. Id. at 943–44. The Tenth Circuit rejected the State’s
argument as “contrary to the plain language” of the WHA and held that the Act affords the BLM
discretion to decide how to handle overpopulations of wild horses on public lands. Id. at 944.
The court noted that the Act directs BLM to maintain inventories of wild horse populations in
order “to . . . make determinations as to whether and where an overpopulation exists and whether
action should be taken to remove excess animals[,] . . . and [to] determine whether [AMLs]
should be achieved by the removal or destruction of excess animals, or other options (such as
sterilization, or natural controls on population levels).” Id. at 944 (internal quotations removed,
alterations in original) (quoting 16 U.S.C. § 1333(b)(1)). This language “quite clearly affords . . .
BLM with discretion to decide whether or not to remove excess animals.” Id. The court
concluded that this discretion is not extinguished when BLM determines that a particular wild
horse population exceeds its assigned AML: “[C]ontrary to the State’s argument, a determination
that an overpopulation exists in a given HMA is not sufficient, standing alone, to trigger any duty
on the part of the BLM.” Id. Instead, BLM has a mandatory, non-discretionary duty to
“immediately remove excess animals” only after BLM “determines . . .  that an
overpopulation exists on a given area of the public lands and  that action is necessary to
remove excess animals . . . .” § 1333(b)(2) (emphasis added); see also Wyoming, 839 F.3d at 944.
Although it was clear that an overpopulation of wild horses existed on the disputed HMAs, the
court held that the State had failed to demonstrate that the second requirement was satisfied
“because . . . BLM has not determined that action is necessary to remove the excess animals.”
Wyoming, 839 F.3d at 944. As a result, the court concluded that BLM was not obligated to
remove excess wild horses under the WHA and therefore had not “unlawfully withheld or
unreasonably delayed” an action it was required by law to take. Id. at 944–45.
Here, as in Wyoming, it is undisputed that wild horse populations exceed the respective
AMLs of each of the eight HMAs and one HA at issue. Still, the parties differ as to whether
BLM has determined that removal of excess animals is necessary on certain of the HMAs, i.e.,
whether a mandatory duty to remove the excess animals has been triggered. Plaintiffs assert that
BLM has determined that removal of excess horses is necessary on each of the eight HMAs and
one HA at issue. BLM concedes that it has determined that removal is currently necessary on
five of the eight HMAs and one HA, but denies that any such determination has been made for
the four remaining HMAs. More specifically, BLM acknowledges that, since 2014, it has
determined that removal of excess horses is necessary in the Frisco, Four Mile, Bible Springs,
and Sulphur HMAs, and the Blawn Wash HA. (Docket No. 117, at 10–11). Thus, BLM agrees
that it has a statutory duty to remove excess horses from these areas.
By contrast, BLM insists that it has not determined that removal of current
overpopulations is necessary in the Choke Cherry, Muddy Springs, North Hills, and Swasey
HMAs. BLM argues that any previous determinations regarding the necessity of removal from
those HMAs are no longer operative and cannot bind the agency. Plaintiffs disagree and insist
that determinations made prior to 2014 regarding the necessity of removal from the four
remaining HMAs are sufficient to trigger BLM’s statutory duty to “immediately remove” current
overpopulations pursuant to Section Three.
The court will first address the adequacy of BLM’s efforts to remove wild horses from
Frisco, Four Mile, Bible Springs, and Sulphur HMAs, as well as the Blawn Wash HA, where
BLM acknowledges a statutory obligation to remove under Section Three. The court will then
address whether a statutory duty to remove exists in the Choke Cherry, Muddy Creek, North
Hills, and Swasey HMAs and, if so, whether that duty has been adequately fulfilled.
A. REMOVAL DETERMINATIONS FOR FRISCO, FOUR MILE, BIBLE
SPRINGS, AND SULPHUR HMAs, AND BLAWN WASH HA
BLM concedes that it has a current duty under Section Three of the WHA to
“immediately remove” excess wild horses from the Frisco, Four Mile, Bible Springs, and
Sulphur HMAs, as well as the Blawn Wash HA. Plaintiffs claim that BLM has “unreasonably
delayed” removal action in these areas such that mandatory injunctive relief is warranted under 5
U.S.C. § 706(1). As explained previously, such claims are typically evaluated under the multifactor TRAC analysis as outlined in Qwest Comm’n, 398 F.3d at 1238–39. However, before
proceeding to an application of the TRAC factors, the court must address two more fundamental
issues. First, the court must define the duty imposed on BLM by Section Three of the WHA and,
second, the court must decide whether BLM has in fact “delayed” execution of that duty.
1. THE DUTY IMPOSED ON BLM BY SECTION THREE OF THE WHA
Before evaluating BLM’s removal efforts on the four HMAs and single HA at issue, the
court must delineate the removal duty imposed by Section Three. As explained above, Section
Three requires BLM to maintain current inventories of wild horse and burro populations on
public lands. See 16 U.S.C. § 1333(b)(1). BLM uses these inventories to establish AMLs and to
determine “whether and where an overpopulation exists” in a given area of the public lands. Id.
Once BLM determines that an overpopulation in fact exists in a given area, the agency has wide
discretion in how it addresses that overpopulation. See Wyoming, 839 F.3d at 944. BLM uses
available data to “determine whether [AMLs] should be achieved by the removal or destruction
of excess animals, or other options (such as sterilization, or natural controls on population
levels).” 16 U.S.C. § 1333(b)(1). Thus, BLM may address the identified overpopulation through
removal or through other methods it deems more suitable. See Wyoming, 839 F.3d at 944
(“Subsection (b)(1)’s use of the phrase ‘whether action should be taken to remove excess
animals’ quite clearly affords the BLM with discretion to decide whether or not to remove excess
However, under certain conditions, Section Three requires BLM to conclusively prioritize
removal over other management activities. Specifically, when BLM identifies an overpopulation
of wild horses in a given area and determines that action is necessary to remove that
overpopulation, Section Three unequivocally requires that the agency address the identified
overpopulation through removal. See 16 U.S.C. § 1333(b)(2). Though BLM indisputably has
discretion “to determine whether action should be taken to remove excess animals” and “whether
[AMLs] should be achieved by the removal or destruction of excess animals, or other options
(such as sterilization, or natural controls on population levels)[,]” 16 U.S.C. § 1333(b)(1);
Wyoming, 839 F.3d at 944, that discretion evaporates once BLM determines “that action is
necessary to remove excess animals,” 16 U.S.C. § 1333(b)(2). A determination that removal of
an identified overpopulation is “necessary” indicates that BLM cannot “achieve [or] maintain a
thriving natural ecological balance on the public lands” without the removal. See 16 U.S.C. §
1333(a), (b)(2). Accordingly, once that determination is made, the statute explicitly and
unequivocally directs that BLM “shall immediately remove excess animals from the range so as
to achieve appropriate management levels.” Id. § 1333(b)(2). There is no discretion in this
command; BLM must eschew other management techniques and address the overpopulation
Section Three also provides some indication of the urgency with which BLM must
accomplish necessary removals: the statute directs that BLM must “immediately remove excess
animals.” 16 U.S.C. § 1333(b)(2) (emphasis added). The parties in this case dispute the practical
significance of this language. Plaintiffs, seeking the rapid removal of excess animals from the
range, insist that this language requires removal to within established AML “without delay.”
(Docket No. 122, at 13 (quoting Immediate, BLACK’S LAW DICTIONARY (10th ed. 2014))). By
contrast, BLM argues that the lack of specific statutory deadlines indicate that “pace and timing
of [BLM’s] removals are discretionary.” (Docket No. 117, at 19). BLM and DefendantIntervenors emphasize that removal is a “process” and must proceed in phases until completion.
(See Docket No. 117, at 19; Docket No. 120, at 50, 58).
Evaluation of these arguments turns on the practical meaning of one particularly vexing
adverb—“immediately.” The term is not defined in the Act, see 16 U.S.C. § 1332, so the court
turns to the plain, ordinary meaning of the word to guide interpretation, see Schindler Elevator
Corp. v. U.S. ex rel. Kirk, 563 U.S. 401, 407–08 (2011). As Plaintiffs assert, the plain meaning of
the term suggests action that occurs “[w]ithout interval of time . . . [or] without delay.” 11
Expression of congressional intent “lies in the ordinary meaning attached to the [otherwise undefined] word,
which may be found by aid of commonly accepted dictionary definitions.” In re Hamilton Creek Metro. Dist., 143
F.3d 1381, 1385 (10th Cir. 1998). Of particular note here, dictionaries roughly contemporary to the 1978
amendments to the WHA defined “immediately” in much the same manner. See Immediately, WEBSTER’S (THIRD)
NEW INTERNATIONAL DICTIONARY 1129 (3d ed. 1971) (“[W]ithout interval of time [or] without delay.”);
Immediately, RANDOM HOUSE COLLEGE DICTIONARY 664 (1st rev. ed. 1980) (“[W]ithout lapse of time; without
delay; instantly; at once.”); Nat’l Credit Union Admin. Bd. v. Nomura Home Equity Loan, Inc., 764 F.3d 1199,
1227–28 (10th Cir. 2014) (“Courts often begin an ordinary meaning analysis by consulting contemporary dictionary
definitions.” (emphasis added)). Current and more recent definitions of the term “immediately” or its adjectival
equivalent “immediate” are substantively identical to contemporary definitions and are essentially consistent across
various dictionaries. See Immediate, MERRIAM-WEBSTER DICTIONARY 357 (7th ed. 2016) (“[M]ade or done at
Immediately, BLACK’S LAW DICTIONARY (4th rev. ed. 1968). “[T]he word, without any very
precise signification, denotes that action is or must be taken either instantly or without any
considerable loss of time.” See Immediate, BLACK’S LAW DICTIONARY (4th rev. ed. 1968). Thus,
Congress’ use of this term to govern necessary removal actions under Section Three evokes
significant urgency and shuns delay.
Nonetheless, as BLM is quick to explain, an overly literal interpretation of the term belies
practical reality. (Docket No. 117, at 19). Put simply, the physical removal of wild animals from
the open range cannot be accomplished “instantly” or “at once”—the process necessarily entails
some delay. For example, BLM generally cannot gather during certain months of the year,
particularly during the spring foaling season, for fear of disrupting the targeted herd’s
reproductive cycles or general health. Conditions on the ground—including inclement weather,
an unexpectedly scattered target herd, or the failure of skittish animals to respond to gather
techniques—may also delay or disrupt removal efforts. Even when timing and conditions are
right, BLM must carefully plan and execute the gather and removal so as to avoid eroding the
target herd’s physical health, social cohesion, or genetic viability. BLM must also comply with
planning and public comment requirements under FLPMA and NEPA and retain contractors with
the necessary skill and resources to safely, efficiently, and humanely execute the removals. 12
Based on these practical realities, the court cannot interpret Section Three to require
once.”); Immediate, BLACK’S LAW DICTIONARY (10th ed. 2014) (“Occurring without delay; instant.”); Immediately,
NEW OXFORD AMERICAN DICTIONARY 849 (2001) (“At once; instantly[;] . . . without any intervening time . . . .”);
Immediately, AMERICAN HERITAGE DICTIONARY 902 (3d ed. 1992) (“Without delay.”).
The statute itself seems to contemplate such a process, directing BLM to take removal actions in a specific “order
and priority, until all excess animals have been removed.” 16 U.S.C. § 1333(b)(2). That “order and priority” entails
careful evaluation of (1) the health and viability of individual animals, id. § 1333(b)(2)(A) (directing the Secretary to
destroy “old, sick, or lame animals”); (2) the presence of an adoption demand for individual healthy excess horses,
id. § 1333(b)(2)(B); (3) the qualifications of prospective adoptive parties, including their ability to ensure humane
treatment and proper facilities, id.; and, finally, (4) determination of which individual healthy excess horses must be
humanely destroyed, id. § 1333(b)(2)(C).
removal of excess wild animals without any intervening delay—such an interpretation would
contravene the ultimate purposes of the WHA by forcing BLM to act recklessly and without
regard for the continuing viability or humane treatment of creatures it is specifically tasked with
preserving. See Am. Wild Horse Pres. Campaign, 847 F.3d at 1178 (explaining that the WHA was
“enacted by Congress to ensure the survival” of wild horses and burros); In re Overland Park
Fin. Corp., 236 F.3d 1246, 1252 n.9 (10th Cir. 2001) (citing United States v. Brown, 333 U.S. 18,
27 (1948)) (“[C]ourts will reject an interpretation of a statute that produces an absurd result.”).
Section Three’s mandate to “immediately remove” must therefore include some discretionary
space in which BLM may plan and execute safe, efficient, and effective removals consistent with
the broader purposes of the WHA and in compliance with other statutory duties.
At the same time, the court cannot accept BLM’s contention that the “pace and timing” of
removals are entirely discretionary. (See Docket No. 117, at 19). The term “immediately” must
mean something—its presence in the statute necessarily places some temporal limits on any
discretion BLM has to plan and execute removal actions. The D.C. Circuit has explained that the
term “immediately” indicates that Congress desired that “excess horses . . . be removed
expeditiously” and decided that “prompt action was needed to redress . . . imbalance” in wild
horse populations on public lands. Am. Horse Prot. Ass’n, Inc. v. Watt, 694 F.2d 1310, 1316–17
(D.C. Cir. 1982) (emphasis added and in original). Indeed, the statute indicates that
“immediate” removal action is required “so as to restore a thriving natural ecological balance to
the range and [to] protect the range from the deterioration associated with overpopulation.” 16
U.S.C. § 1333(b)(2); Blake v. Babbitt, 837 F. Supp. 458, 459 (D.D.C. 1993) (citing Am. Horse
Prot. Ass’n, 694 F.2d at 1317–19) (explaining that Section Three requires action, even when that
action is based on incomplete knowledge of conditions on the ground, because “the endangered
and rapidly deteriorating range cannot wait”). Any unnecessary delay or lack of urgency in
reducing the population to within AML would contravene these purposes by allowing excess
wild horses to persist, propagate, and consume an imbalance of already scarce resources. With
the viability of the range and the wild horses themselves in immediate peril as a result of
overpopulation, BLM cannot postpone action to remove excess wild horses once it determines
that such action is necessary. 13 To the extent that practical realities preclude truly “immediate”
removal, BLM may only delay necessary removal actions insofar as delay is necessary to plan
and execute the actions safely and effectively. Proper planning and execution would of course
account for many of the practical realities that BLM has identified, including due analysis of
circumstances on the ground, compliance with NEPA and FLPMA, and retention of experienced
In sum, once BLM determines that an overpopulation exists in a given area and action is
necessary to remove that overpopulation, Section Three demands that BLM address the
overpopulation through removal and that the agency begin and complete removal as soon as
Indeed, the 1978 amendments that added Section Three’s duty to “immediately remove” clearly contemplated
rapid intervention to avoid such degradation to both wild horse and rangeland health: “The Act envisions that
intervention will be necessary to protect the [desired ecological] balance; in fact, it goes so far as to authorize both
sterilization and euthanasia.” In Def. of Animals v. U.S. Dep’t of Interior, 737 F. Supp. 2d 1125, 1139 (E.D. Cal.
2010) (citing 16 U.S.C. § 1333(b)); see also Am. Horse Prot. Ass’n, 694 F.2d at 1316–17 (explaining that “Congress
expected prompt administrative action to deal with wild horse overpopulations” and avoid damage to other
rangeland values, and accordingly “broaden[ed] the means the Secretary may employ” to achieve those ends).
As will be explained further below, the court concludes that certain broad administrative constraints that BLM has
identified, including competing removal needs across multiple states, severe budget limitations, and shortage of
space for removed animals, cannot erase the urgency that Section Three clearly demands. Unlike the practical
realities inherent in the actual act of removal, such external administrative considerations have no effect on the
fundamental nature of BLM’s duty to “immediately remove” under Section Three. Instead, they are properly raised
as possible justification for delay in executing that duty. Cf. Forest Guardians, 174 F.3d at 1192–93 (“While we
appreciate the Secretary’s objective and the difficult position in which Congress has placed him, we believe his
impossibility argument is premature.”).
2. WHETHER BLM HAS DELAYED EXECUTION OF ITS SECTION THREE
With this understanding of BLM’s Section Three removal duty in mind, the court turns to
BLM’s efforts to fulfill that duty. Again, BLM acknowledges that it has a current duty under
Section Three to “immediately remove” excess wild horses from the Frisco, Four-Mile, Bible
Springs, and Sulphur HMAs, as well as the Blawn Wash HA. In each area, BLM has made the
necessary determinations that an overpopulation of wild horses exists and that action is necessary
to remove that overpopulation. (See AR001490 (Frisco 2012 DR); AR001350 (Bible Springs
Complex 2014 DR, including Bible Springs HMA, Four-Mile HMA, and Blawn Wash HA));
(Docket No. 117-1, at 42 (Sulphur 2016 DR)). To address these findings, BLM has begun
implementation of “a pilot management alternative that calls for a phased-in approach to reach
AML over a six to ten year period by gradually removing excess animals, implementing fertility
control, and adjusting sex ratios.” (See, e.g., AR001477 (explaining the plan as proposed for the
Frisco HMA in 2012)). The initial removal actions contemplated by this approach are not meant
to eliminate the identified overpopulation—they serve instead to reduce the number of animals
present on the range to a targeted population level somewhere above the established AML. Full
removal of any overpopulation would be achieved only after successive removal actions over
approximately six to ten years. (See, e.g., Docket No. 117-1, at 23 (spelling out BLM’s 2016 plan
to initially achieve a “targeted population of approximately 100 animals” in the Frisco HMA
within several years, followed “additional phased-in gathers to achieve the low range of AML”
over approximately five years)). During gathers, BLM plans to administer immunocontraceptives
to mares, adjust the herd’s sex ratio, and then release certain gathered animals back onto the
range. Importantly, the post-gather population would remain above AML in anticipation of
subsequent removals approximately every two years. Thus, the “phased-in” approach eschews
immediate removal to within AML in favor of longer-term management techniques and
population controls that will eventually result in a population size within AML. Since 2012,
BLM has adopted this approach in the Frisco, Four-Mile, Bible Springs, and Sulphur HMAs, as
well as the Blawn Wash HA.
Plaintiffs argue that BLM’s “phased-in” approach to removal over a six to ten year period
in these areas consitutes an “unreasonabl[e] delay,” see 5 U.S.C. § 706(1), of action that must be
completed “immediately,” see 16 U.S.C. § 1333(b)(2). In response, BLM and DefendantIntervenors argue that BLM has not in fact delayed its ministerial duty to “immediately remove”
excess animals from the range under Section Three. Instead, the defending parties suggest that
BLM has wide discretion in how to implement Section Three’s mandate and that the current
“phased-in” approach to wild horse management fulfills BLM’s statutory obligation to
“immediately remove” excess animals: “Because the [WHA] imposes no specific timetable for
removing horses after [BLM] has made the required removal determinations, especially when
taking into account all the complex and competing factors surrounding removal actions, there has
been no ‘delay’ in this case, much less unreasonable delay.” (Docket No. 117, at 19; see also
Docket No. 120, at 49–51). The court must reject BLM and Defendant-Intervenors’ arguments on
BLM’s “phased-in” approach to removal fails to fulfill the agency’s Section Three duty to
“immediately remove” excess animals in at least two fundamental ways. First, the “phased-in”
approach prioritizes gradual removal and other management techniques over prompt removal to
within AML. As explained above, Section Three unequivocally requires BLM to address
overpopulations through immediate removal of excess animals once the agency makes certain
triggering determinations regarding an area of the public lands. Having made the requisite
determinations in the areas at issue, BLM cannot choose to address the identified overpopulation
through gradual removals and the application of immunocontraceptives and adjustment of sex
ratios 15—the agency must address the overpopulation through immediate removal.
Second, the “phased-in” approach contemplates gradual, rather than “immediate”
removal of excess animals. Though Section Three imposes no specific timetable for necessary
removals, the statute clearly demands prompt removal and forbids unnecessary delay. BLM
urges that a six-to-ten-year delay is necessary “due to limited resources [and] competing removal
needs across [ten] western states,” (Docket No. 117, at 19), but such broad administrative
concerns cannot erase Section Three’s demand for urgency. While it is clear that Section Three’s
mandate to “immediately remove” excess wild horses must account for the practical realities of
the removal process, the fundamental nature of BLM’s statutory duty cannot be altered by the
agency’s budgetary constraints. Here, the six-to-ten-year timetable of the “phased-in” approach
is primarily attributable to these broader administrative constraints and not to the practical
realities of removal. 16 Indeed, BLM acknowledges that the “phased-in” approach to removal is
required because “[n]ationwide, short and long term holding space for excess wild horses
removed from the range is limited.” (See, e.g., AR001351 (Bible Springs Complex 2014 DR));
(Docket No. 117, at 17; Docket No. 117-1, at 23). Further, the total numbers of animals removed
over the life of the plan is at least partially contingent on “administrative factors (budget,
These additional management techniques have no true reductive effect on the identified overpopulation; they only
serve to stem future population growth and to reduce the numbers of excess horses that would have to be removed in
future actions. (See, e.g., AR001178–AR001179 (“The primary use of fertility control would be to maintain the
population within AML once achieved.”)).
BLM’s planning documents suggest that “[b]ased on past gather success . . . only 60-70% of the [wild horse]
population can be gathered in a single year, thus requiring multiple gathers over more than a one year period in order
to achieve AML.” (AR001174). While this fact could be a practical reality justifying some delay in beginning and
completing a removal action, there is no indication in the record that a delay of six to ten years is necessary to
account for it.
adoptions, holding space, etc.).” (AR001174 (Bible Springs Complex 2014 EA)). Such
“administrative factors” do not give BLM license to redefine their statutory obligation under
Section Three. As explained above, BLM is required by law to remove excess animals to within
AML as soon as the actions necessary to complete removal can be safely and effectively carried
out. Removal that occurs gradually over nearly a decade does not fulfill that requirement.
In sum, the court finds that BLM’s “phased-in” approach to removal as adopted in the
Frisco, Four Mile, Bible Springs, and Sulphur HMAs, and the Blawn Wash HA does not fulfill
its statutory obligation to “immediately remove excess animals so as to achieve appropriate
management levels.” 16 U.S.C § 1333(b)(2). It follows that BLM has in fact “delayed” an action
it is required by law to take and that delay is subject to a reasonableness evaluation under 5
U.S.C. § 706(1).
3. WHETHER BLM HAS UNREASONABLY DELAYED EXECUTION OF ITS
SECTION THREE DUTY
Having established that BLM has delayed execution of its Section Three duty to
“immediately remove” excess wild horses from the Bible Springs, Frisco, Four-Mile, and
Sulphur HMAs and the Blawn Wash HA, the court now evaluates whether BLM has
“unreasonably delayed” under 5 U.S.C. § 706(1). “Resolution of a claim of unreasonable delay is
ordinarily a complicated and nuanced task requiring consideration of the particular facts and
circumstances before the court.” Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d
1094, 1100 (D.C. Cir. 2003). The Tenth Circuit has indicated that courts evaluating claims of
“unreasonabl[e] delay” of agency action under § 706(1) should employ a close variation of the
TRAC factors articulated by the D.C. Circuit. See Qwest Comm’ns, 398 F.3d at 1238–39. These
factors are helpful to determine “whether the agency’s delay is so egregious as to warrant
mandamus” or mandatory injunctive relief. See TRAC, 750 F.2d at 79. As formulated by the
Tenth Circuit, the pertinent factors include “(1) the extent of the delay, (2) the reasonableness of
the delay in the context of the legislation authorizing agency action, (3) the consequences of the
delay, . . . (4) administrative difficulties bearing on the agency’s ability to resolve an issue” and,
finally, (5) “consideration of the complexity of the task envisioned by a court’s remand order.”
Qwest Comm’ns, 398 F.3d at 1239. In evaluating these factors, the court is mindful that
“[a]lthough there is no per se rule as to how long is too long, ‘inordinate agency delay would
frustrate congressional intent by forcing a breakdown of regulatory processes.’” In re Int’l
Chem., 958 F.2d at 1149 (quoting Cutler v. Hayes, 818 F.2d 879, 897 n.156 (D.C. Cir. 1987)).
In this case, the court finds that the first three factors weigh in favor of Plaintiffs’ claims
of unreasonable delay, but the balance of factors ultimately weighs against such a finding.
1. EXTENT OF DELAY AND REASONABLENESS OF DELAY IN THE
CONTEXT OF THE WHA
The court will evaluate the first two TRAC factors together. The court must first
“ascertain the length of time that has elapsed since the agency came under a duty to act,” Cutler,
818 F.2d at 897, and then determine “the reasonableness of the delay . . . in the context of the
statute which authorizes the agency’s action,” In re Int’l Chem., 958 F.2d at 1149 (quotations
omitted) (quoting Pub. Citizen Health Research Grp. v. Autcher, 702 F.2d 1150, 1158 n. 30 (D.C.
Cir. 1983) (per curiam)). The latter determination “entails an examination of any legislative
mandate in the statute and the degree of discretion given the agency by Congress.” Cutler, 818
F.2d at 897. In other words, “where Congress has provided a timetable or other indication of the
speed with which it expects the agency to proceed in the enabling statute, that statutory scheme
may supply content” for an evaluation of reasonableness. See TRAC, 750 F.2d at 80. As
explained below, the court finds that these two factors weigh in favor of Plaintiffs’ claims of
The extent of BLM’s delay in this instance is substantial. BLM’s current obligation to
“immediately remove” excess horses in the Frisco, Four-Mile, Bible Springs, and Sulphur
HMAs, as well as the Blawn Wash HA arose as soon as the agency identified an overpopulation
in each given area and determined that action was necessary to remove that overpopulation. See
Wyoming, 839 F.3d at 944. BLM made these determinations for the Frisco HMA in September
2012, (AR001477), for the Sulphur HMA in July 2014, (AR002137), and for the Four-Mile
HMA, Bible Springs HMA, and Blawn Wash HA in June 2014, (AR001350). 17 While it is not
clear from the record exactly how long it would have taken BLM to complete removal to within
AML in these areas consistent with its duty under Section Three, it appears that BLM has
delayed completion of its duty for multiple years in each area and intends to delay for several
years more. Such delay is inconsistent with Section Three’s mandate, which provides a clear
“indication of the speed with which [Congress] expects the agency to proceed,” see TRAC, 750
F.2d at 80—BLM must “immediately remove excess animals from the range so as to achieve
appropriate management levels,” 16 U.S.C. § 1333(b)(2) (emphasis added). As explained above,
this congressional command affords BLM no discretion to choose other management options or
to unnecessarily delay implementation and completion of removal actions. BLM may only delay
the necessary removals to the extent that delay is necessary to safely and effectively complete the
removals. BLM’s years-long failure to fulfill this obligation in the face of the law’s requirement
of prompt action weighs in favor of Plaintiffs’ claims of unreasonable delay.
2. CONSEQUENCES OF THE DELAY
The court next turns to the third TRAC factor and evaluates the consequences of BLM’s
delay. See TRAC, 750 F.2d at 80. In general, the more drastic the consequences resulting from a
Most recently, BLM made additional determinations as to the Sulphur HMA in a May 2016 DR that authorized a
fresh round of gathers and removals. (Docket No. 117-1, at 40–42).
given delay, the less likely that such a delay will be found to be justifiable. For example,
“[d]elays that might be altogether reasonable in the sphere of economic regulation are less
tolerable when human lives are at stake.” Autcher, 702 F.2d at 1157. An agency’s delay may also
produce intolerable regulatory repercussions: “[T]he court must also estimate the extent to which
the delay undermines the statutory scheme, either by frustrating the statutory goal or creating a
situation in which the agency is ‘losing its ability to effectively regulate at all.’” Envtl. Def. Fund
v. U.S. Nuclear Regulatory Comm’n, 902 F.2d 785, 789 (10th Cir. 1990) (quoting Cutler, 818
F.2d at 897–98). As explained below, the court finds that this factor also weighs in favor of
Plaintiffs’ claims of unreasonable delay.
The consequences of BLM’s delay in this instance are significant. Most crucially, the
delay undermines the very purpose of Section Three’s mandate, which is to “maintain a thriving
ecological balance between wild horse and burro populations, wildlife, livestock, and vegetation,
and to protect the range from the deterioration associated with overpopulation of wild horses and
burros.” Blake, 837 F. Supp. at 460 (quoting H.R. Rep. No. 1737, 95th Cong., 2d Sess., 15
(1978)); see also 16 U.S.C. § 1333(a), (b)(2). In each area at issue in this section, BLM has made
a determination that the current overpopulation of wild horses is causing and will continue to
cause considerable harm to rangeland resources. The horses’ overconsumption of already-scarce
water and forage has negative effects on neighboring species and even on the land itself—BLM
documents cite severe soil erosion, destruction of delicate riparian areas, and increased
competition for resources among other wild animals and livestock as predictable consequences
of prolonged overpopulation. Moreover, the continued existence of excess wild horses on the
range threatens the horses themselves. Dehydration or starvation among individual horses is
likely inevitable 18 as competition for forage and water increases, and could be followed by the
collapse of existing herd structures. Regardless of BLM’s sincere efforts to mitigate such harm
through partial removals and other management techniques, the fact remains that the consistent
and unabated presence of overpopulations in the areas at issue severely taxes the rangeland
ecosystem and is ultimately unsustainable. Indeed, BLM has openly acknowledged that its
current wild horse management program is not on a “sustainable path.” (See Docket No. 115-2,
at 2, 14 (May 11, 2016 Letter from then-Director of BLM, Neil Kornze)). Given the pronounced
drought conditions across the areas in question in recent years and the rapid reproduction rate of
wild horses, this may very well be a “situation in which the agency is ‘losing its ability to
effectively regulate at all.’” Envtl. Def. Fund, 902 F.2d at 789 (quoting Cutler, 818 F.2d at 897–
There is also a tangible human cost associated with the continued presence of excess wild
horses. Plaintiffs in this action rely heavily on rangeland forage and water to sustain their
livestock and, by extension, their livelihood. As the federal government owns and manages huge
swaths of the open rangeland in this region, available private land is scarce, expensive, and often
already put to use for forage or otherwise unavailable for livestock grazing. Consequently,
Plaintiffs and other ranchers must often rely on the sage grasses and freshwater springs dotting
the HMAs and HA at issue to maintain their herds of cattle and sheep. Thus, the health of these
areas is inextricably interwoven with the local agricultural economy and, as a result, the
continued degradation of rangeland resources by excess wild horses has profound financial
BLM has already recorded instances of wild horses dying from hunger or thirst in some of the areas at issue. (See,
e.g., AR001197 (recording the 2013 deaths of fourteen wild horses “due to lack of forage and/or water” in the Bible
consequence. 19 A pertinent example: The owners of the Wintch Ranch report they were forced to
sell over 300 head of cattle between 2013 and 2014 owing to the unavailability of sufficient
forage and water on the HA. Additionally, wild horses on the HA have repeatedly damaged or
destroyed fencing and water improvements installed by the Wintch owners on the HA,
necessitating repair and exacerbating drought conditions. Most significantly, the Wintch ranching
operation has not been able to utilize its full allotment of forage in Blawn Wash HA for nearly
twenty years because of competition with wild horse herds for forage and water. (Docket No.
103-2, at 2–5). Consistent with this report, BLM concluded in a 2014 EA concerning the Blawn
Wash HA and adjacent areas that “[w]ild horses, wildlife, and livestock compete directly for the
same cover, water, and forage resources” and that overgrazing of wild horses “reduce[s] forage
availability for livestock.” (See AR001171). In certain other areas around the same time, BLM
found that wild horse populations were consuming more than 360% of their allocated forage due
to overpopulation, while livestock consumption peaked at a mere 78% of allotted forage.
(AR001490 (Frisco 2012 EA); see also AR001191–AR001192 (reporting a similar situation
under drought conditions in the Bible Springs Complex and Blawn Wash HA)). Grazing
permittees have been forced to “voluntarily” reduce or eliminate livestock consumption on their
allotments in order to avoid wholly depleting rangeland resources, all while wild horse
overconsumption continues largely unabated. 20(See, e.g., AR001192).
Amicus Western AgCredit provides a stark example of potential economic harm. The institution reports that a
significant number of its existing loans in the region are secured with liens on grazing permits granted under the
Taylor Grazing Act and suggest that continued degradation of rangeland resources has and will continue to impair
the value of these permits. Impairment of these permits could cause serious financial harm to lender and borrower
alike: “Many of these customers could not survive economically if their grazing access on public lands is materially
reduced.” (Docket No. 107, at 3).
Defendant-Intervenors seem to suggest that overgrazing of livestock is the primary cause of the deterioration of
rangeland resources. (Docket No. 120, at 17–18). Regardless of the impact that livestock grazing may have on
rangeland resources, it is clear from the record that “[y]ear-long [excess] wild horse grazing reduces forage
availability for livestock” and “can reduce forage production, vigor, reproduction, and availability for several years.”
(See, e.g., AR001494–AR001495 (describing interplay of wild horse and livestock demand for rangeland resources
The court acknowledges that BLM has made good-faith efforts to mitigate harm from
identified overpopulations in each of the areas at issue. In fact, BLM has removed a number of
excess horses from some of the areas at issue in recent months, (see, e.g., Docket No. 117-1, at
29–37 (indicating BLM removed 113 head from the Frisco HMA in July 2016 and 158 head
from Blawn Wash HA in August 2016)), and plans to remove more horses in the coming years,
(see Docket No. 117, at 11 (indicating that BLM plans to conduct removal operations in each of
the areas at issue in 2017 or early 2018)). Nevertheless, BLM acknowledges that significant
overpopulation persists in each area and that the agency’s current plans for removal and
mitigation would allow overpopulations to remain for several years into the future. Given the
grave nature of the consequences that flow from BLM’s failure to completely remove identified
overpopulations of wild horses, the court concludes that this TRAC factor weighs in favor of
Plaintiffs’ claims of unreasonable delay.
3. ADMINISTRATIVE DIFFICULTIES BEARING ON BLM’S ABILITY TO
ADDRESS WILD HORSE POPULATIONS
The fourth TRAC factor requires this court to evaluate the “administrative difficulties
bearing on the agency’s ability to resolve an issue.” Qwest Comm’n, 398 F.3d at 1239. Courts
owe final agency action “considerable deference,” see People for Ethical Treatment of Prop.
Owners v. U.S. Fish & Wildlife Serv., 852 F.3d 990, 999 (10th Cir. 2017), and, to a certain extent,
review of agency inaction is similarly circumspect. Accordingly, any court evaluating the
on the Frisco HMA and concluding that wild horse overconsumption degrades resources and negatively affects
Defendant-Intervenors further suggest that Plaintiffs’ grazing access is unfairly subsidized by
taxpayers, the implication being that any hindrance to that access is therefore less egregious. (Docket No. 120, at
17–18). Regardless of what Plaintiffs pay for the right, they are indisputably entitled by law to graze their animals
on these lands. Thus, any hindrance to their grazing access is still potentially a hindrance to a legal right and a
tangible harm. More to the point, it cannot be seriously argued that access to public lands for grazing is somehow
negligible in the grand scheme of Plaintiffs’ economic fortunes. In fact, it is clear from the record that such access is
very likely critical to the livelihood of many, if not all, individual Plaintiffs. This is more than enough to warrant
careful review of the consequences of BLM’s failure to remove excess wild horses from the areas at issue.
reasonableness of agency delay “should give due consideration in the balance to ‘any plea of
administrative error, administrative convenience, practical difficulty in carrying out a legislative
mandate, or need to prioritize in the face of limited resources.’” In re Int’l Chem., 958 F.2d at
1149–50; Cutler, 818 F.2d at 898 (explaining that courts should consider “the agency’s
explanation, such as administrative necessity, insufficient resources, or the complexity of the task
confronting the agency”). In delineating this factor, the TRAC court emphasized “the effect of
expediting delayed action on agency activities of a higher or competing priority.” 750 F.2d at 80.
“Of course, these justifications become less persuasive as delay progresses, and must always be
balanced against the potential for harm.” Cutler, 818 F.2d at 898. As explained below, the court
concludes that this factor weighs heavily against Plaintiffs’ claims of unreasonable delay.
BLM’s efforts to both successfully and sustainably manage wild horse populations
pursuant to the WHA are hindered by nigh-insurmountable administrative obstacles. Among
those obstacles, perhaps the greatest is the United States Congress. The WHA demands that
BLM continually monitor and manage nearly 67,000 wild horses scattered across ten western
states and periodically remove excess animals in the following “order and priority”: First, BLM
must humanely euthanize “old, sick, or lame animals,” 16 U.S.C. § 1333(b)(2)(A); then BLM is
to facilitate the adoption of healthy animals “for which [it] determines an adoption demand exists
by qualified individuals,” id. § 1333(b)(2)(B); and, finally, BLM must humanely euthanize any
“additional excess wild free-roaming horses and burros for which an adoption demand by
qualified individuals does not exist,” id. § 1333(b)(2)(C). While subsection (b)(2)(C) clearly
contemplates the humane destruction of healthy excess animals as an available population
management tool, Congress has refused to appropriate any funds for euthanasia—in fact,
Congress has categorically prohibited BLM from using any funds it does appropriate to BLM for
“the destruction of healthy, unadopted wild horses and burros in the care of [the agency] or its
contractors.” See, e.g., Consolidated and Further Continuing Appropriations Act, 2015, Pub. L.
113-235, 128 Stat. 2130, 2399 (Dec. 16, 2014); In Def. of Animals, 751 F.3d at 1066 n.20 (citing
Pub. L. No. 111-88, 123 Stat. 2904, 2907 (2009)) (“Congress has barred the BLM from
euthanizing healthy excess horses for which there is no adoption demand . . . by continually
declining to appropriate funds for the destruction of these animals.”). Thus, the agency is stuck in
a statutory catch-22—Congress expects that BLM will comply with the Act’s mandate to
maintain wild horse populations within established AMLs, but has eliminated one of the critical
mechanisms the Act provides in order to make such a mandate workable. While the court
acknowledges that the mass destruction of healthy wild horses is understandably not a popular or
perhaps even a palatable solution to overpopulation, 21 it may very well be the only way the
statutory scheme, as written, can actually work. But Congress has effectively cut the statutory
scheme off at the knees, forcing BLM to focus its disposition of removed horses almost
exclusively on facilitating private adoption under subsection (b)(2)(B) and other methods. (See
Docket No. 115-2, at 5 (indicating that BLM has adopted out more than 230,000 wild horses and
burros removed from the range in the past forty years)).
Unfortunately, adoption demand has plummeted nearly 70% in recent years, (id.), and, as
a result, a staggering chunk of BLM’s wild horse management budget must be allocated to
permanently board more than 50,000 unadopted animals in off-range corrals and pasturelands,
(see AR015213 (indicating that boarding costs accounted for nearly 60% of BLM’s wild horse
budget in 2012)). Over a lifetime, each unadopted horse will require approximately $50,000 for
The court notes that a recent budget proposal from the current presidential administration reportedly contemplates
some destruction of healthy wild horses and even their sale for slaughter. The above discussion is in no way meant
to stake out a position on such a charged and potentially controversial matter of policy. The court intends only to
illustrate the practically intractable management demands imposed on BLM by the statutory scheme and current
adequate care and upkeep, placing current projected costs for boarding unadopted animals in the
multi-billion dollar realm. Moreover, the off-range facilities used to house these animals are
currently at or nearing capacity, and suitable additional facilities are often prohibitively
expensive or difficult to procure. These practical realities restrict BLM’s removal efforts to
approximately 3,500 wild horses per year, a number roughly equivalent to the total number of
animals that “leave the system annually through adoption, sale, and natural mortality.” (Docket
No. 115-2, at 2). Given these administrative obstacles, BLM concedes that “removing wild
horses from the range is simply not a sustainable management option.” (Docket No. 117, at 17).
Unlike the previous three factors, these practically overwhelming administrative difficulties
weigh strongly against a finding of unreasonable delay. 22
Of course, such administrative obstacles “must always be balanced against the potential
for harm.” Cutler, 818 F.2d at 898. In evaluating that balance, the court notes that the D.C.
Plaintiffs and certain amici insist that “BLM’s alleged lack of funding is a creature of its own making.” (Docket
Nos. 115, at 17; 122, at 17). They further argue that this court may not consider budgetary constraints as a
justification for shirking mandatory, nondiscretionary statutory duties under Forest Guardians, 174 F.3d at 1192.
(Docket Nos. 122, at 21; 115, at 18–19). The court must disagree on both points. As to the first point, there is plainly
insufficient information available in the record or in the parties’ filings to adequately evaluate whether BLM has
somehow mismanaged or misappropriated its budget. Even if there were some indication of mismanagement, this
court is ill-equipped to evaluate such concerns and the present parties and amici are ill-equipped to make such
arguments. See In re Barr Laboratories, Inc., 930 F.2d 72, 76 (D.C. Cir. 1991) (“[E]ven if the [agency’s] request [for
budget cuts] reflected unsound judgment—a matter on which courts are completely unqualified to pass—the
problems that flow from it are not ones that we can fix by reshuffling the agency’s files.”). Glancing over BLM’s
budget requests from the past several years or Monday-morning-quarterbacking their budget allocations for this year
lends no true insight into the complex interplay of administrative factors inherent in congressional appropriations
and agency budgeting. See id. From available information, the court cannot say that BLM’s funding constraints in
wild horse and burro management are somehow self-inflicted.
As to Forest Guardians, the court believes Plaintiffs and amici misunderstand the import of that case.
Under Forest Guardians, this court may not refuse to compel mandatory agency action once it has determined that
the action is either “unlawfully withheld or unreasonably delayed” under 5 U.S.C. § 706(1)—even where an agency
pleads inadequate resources to complete the compelled action. Forest Guardians, 174 F.3d at 1190–92. However,
before such a duty to compel arises, this court must first decide that the agency action has indeed been either
“unlawfully withheld or unreasonably delayed” under § 706(1). See id. at 1189 & 1189 n.14 (explaining “that if the
Secretary unlawfully withheld agency action or unreasonably delayed it . . . , we must compel the Secretary to
perform the mandatory duties required by the ESA” (emphasis added)). Indeed, this court’s evaluation of whether
the agency’s delay is in fact unreasonable requires evaluation of agency resources and other administrative
limitations. See Qwest Comm’n, 398 F.3d at 1239 (indicating that courts evaluating the reasonableness of agency
delay under § 706(1) should consider “administrative difficulties bearing on the agency’s ability to resolve an
Circuit has emphasized “the importance of ‘competing priorities’ in assessing the reasonableness
of an administrative delay.” Mashpee Wampanoag, 336 F.3d at 1100 (quoting In re Barr
Laboratories, Inc., 930 F.2d 72, 75 (1991)). The Mashpee Wampanoag court noted that a
previous panel had denied mandamus relief, “even though all the other factors considered in
TRAC favored it, where ‘a judicial order putting the petitioner at the head of the queue would
simply move all others back one space and produce no net gain.’” Id. (quoting In re Barr
Laboratories, 930 F.2d at 75). Here, BLM must balance wild horse populations and rangeland
health not only in Utah, but across ten western states. This juggling act requires maintenance of
wild horse populations that are collectively more than 200% above the population limits set in
BLM land-use plans and rising. Removing even a substantial portion of that overpopulation
across the intermountain west is clearly outside of BLM’s budgetary and logistical reach.
Instead, BLM reports that it must prioritize removal efforts in areas with the “most pressing and
urgent needs at any given time,” (Docket No. 117, at 8). Prioritizing Plaintiffs’ demands for
removal would simply force BLM to alter determinations it has already made about the “most
pressing and urgent needs” for removal in Utah and in nine other states containing rangelands
burdened by excess wild horses. The court is hesitant to disrupt BLM’s balancing of “competing
priorities” within the wild horse and burro program, especially where granting relief in this case
would simply shift the harm of overpopulation from one region to another. See Mashpee
Wampanoag, 336 F.3d at 1100. “The agency is in a unique—and authoritative—position to view
its projects as a whole, estimate the prospects for each, and allocate its resources in the optimal
way. Such budget flexibility as Congress has allowed the agency is not for [this court] to hijack.”
See In re Barr Laboratories, 930 F.2d at 76. 23 Because BLM’s delay in this instance evidently
The court acknowledges that the Tenth Circuit has rejected some of the D.C. Circuit’s legal reasoning in the Barr
Laboratories case. See Forest Guardians, 174 F.3d at 1190–91. However, this court believes that the Tenth Circuit’s
stems from limited resources allocated among “competing priorities,” and complete removal is
hindered by the practical and administrative obstacles outlined above, the court concludes that
the fourth TRAC factor weighs heavily in the agency’s favor despite the significant harm inherent
Additionally, the court notes that, in certain cases, “the good faith of the agency in
addressing the delay weighs against” a finding of unreasonable delay. See Liberty Fund, Inc. v.
Chao, 394 F. Supp. 2d 105, 119–20 (D.D.C. 2005) (citing In re Am. Fed’n of Gov’t Emps., 837
F.2d 503, 507 (D.C. Cir. 1988)). There is no indication here that BLM staff are “just ‘twiddling
their thumbs’” as to their management responsibilities. See Wyandotte Nation v. Salazar, 939 F.
Supp. 2d 1137, 1153 (D. Kan. 2013) (quoting Mashpee Wampanoag, 336 F.3d at 1100–01).
Instead, BLM has made genuine, though inadequate, efforts to mitigate the harm caused by wild
horse overpopulations and has devised what it believes is the best approach available given its
limited resources. While these efforts clearly do not fulfill the statutory requirements of the
WHA, they indicate that BLM has not wholly abandoned its management responsibilities. Thus,
the situation here does not indicate a true “breakdown of regulatory processes.” See In re Int’l
Chem., 958 F.2d at 1149 (quoting Cutler, 818 F.2d at 897 n.156) (internal quotations omitted). In
skepticism of that case was limited in scope. The Forest Guardians court explicitly rejected the assertion, upheld in
Barr Laboratories, that a court may refuse to compel agency action once it has determined that the agency’s delay is
unreasonable or that the agency has unlawfully withheld action, even when the agency claims inadequate resources
to comply with a mandatory injunction. See id. at 1272–73 (“[5 U.S.C. §] 706 requires that a reviewing court “shall
compel agency action . . . unreasonably delayed,” and despite [the Barr Laboratories] court’s contrary conclusion,
we believe that once a court deems agency delay unreasonable, it must compel agency action.”). However, while it
is clear that the Tenth Circuit has rejected Barr Laboratories’ application of the “limited resources” defense to
agency action that is already determined to be “unlawfully withheld or unreasonably delayed” under 5 U.S.C. §
706(1), the court believes that the Tenth Circuit would not oppose the consideration of limited agency resources in
evaluating the preliminary inquiry of the reasonableness of agency delay. See Qwest Comm’n, 398 F.3d at 1239
(indicating that courts evaluating the reasonableness of agency delay under § 706(1) should consider “administrative
difficulties bearing on the agency’s ability to resolve an issue”). The court finds the reasoning of Barr Laboratories
both apt and useful to evaluate the reasonableness of BLM’s delay in this instance.
sum, the agency’s good faith efforts to mitigate harm, though legally insufficient, also weigh
against a finding of unreasonable delay.
4. COMPLEXITY OF THE TASK ENVISIONED BY REMAND TO BLM
Finally, the court turns to evaluation of “the complexity of the task envisioned by a . . .
remand order” in this case. 24 See Qwest Comm’n, 398 F.3d at 1239. While the Tenth Circuit has
not had occasion to elaborate on the import of this factor, the court can infer that such an inquiry
requires evaluation of the logistical implications of a mandatory injunction for both the targeted
agency and the court. In making such an inquiry, the court is mindful that the Supreme Court has
interpreted 5 U.S.C. § 706(1) circumspectly, so as 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.” See Norton v. S.
Utah Wilderness All., 542 U.S. 55, 66 (2004). In other words, evaluation of this factor requires
frank acknowledgement of the fact that mandatory injunctive relief is necessarily disruptive of
agency priorities and programming. Moreover, the issuance of such relief often requires the
district court—ill-equipped to evaluate either agency priorities or programming—to wade into
the administrative murk by ordering specific agency action and monitoring compliance.
Consequently, “it is clear that a court-imposed deadline for agency action constitutes an
extraordinary remedy.” Qwest Comm’n, 398 F.3d at 1238–39; In re Int’l Chem. Workers, 958
F.2d at 1149 (“[I]n extraordinary circumstances, this court will review claims of unreasonable
The court sees some conceptual dissonance in considering “the complexity of the task envisioned by a court’s
remand order” when determining the reasonableness of an agency’s delay in carrying out its lawful obligations.
Such an inquiry seems more closely tied to a court’s prudential concerns than to the agency’s conduct. Perhaps the
Tenth Circuit intended this factor to serve as a virtual “tie-breaker” where, as here, the balance of the TRAC factors
leaves the court with an extremely close call to make. In such a situation, a finding that a remand order compelling
the agency to act would be unduly disruptive would serve to reinforce the analysis of the agency’s administrative
concerns (the fourth TRAC factor). That is certainly the case here, where the court’s analysis below reinforces and
supplements its previous determination that the agency faces significant administrative obstacles.
agency delay.”); Wyandotte Nation, 939 F. Supp. 2d at 1151 (citing In re Cooper Tire & Rubber
Co., 568 F.3d 1180, 1186 (10th Cir. 2009)) (“A mandatory injunction is a drastic remedy that
should be reserved for the most extraordinary circumstances.”).
Here, Plaintiffs request that this court “enter [an] order compelling [BLM] to immediately
remove . . . excess wild horses” from four HMAs and one HA. (Docket No. 103, at 59). As
should be obvious given the above analysis, such a seemingly simple command is in fact loaded
with complexity. First, the task itself would require the mobilization of significant resources and
the restructuring of long-term plans and programming already underway in each of these areas
and in nine other states. As explained above, practical and administrative realities preclude BLM
from removing more than approximately 3,500 wild horses across ten states in any given year.
By the court’s count, requiring the immediate removal of excess wild horses in the four HMAs
and single HA at issue would involve the removal of well over half of BLM’s yearly limit. In
fact, likely more than 1,000 animals would have to be removed from the Sulphur HMA alone.
(See, e.g., Docket No. 117-1, at 40–41 (indicating that the estimated wild horse population of
Sulphur HMA is well over 1,000 animals and more than 383% of the established AML)). An
order from this court compelling removal would force BLM to focus its limited resources to a
disproportionate degree on these specific areas of Utah. Such a broad reallocation of resources
would undoubtedly necessitate the wholesale reevaluation of established long-term removal
plans not only in Utah, but also across nine other western states. Removal plans for other states
and other HMAs would be disrupted and meaningful rangeland management goals throughout
the western United States could be frustrated. 25 Thus, while Plaintiffs technically seek to compel
Additionally, as part of compliance with any order to remove excess horses in these areas, BLM would be
required under NEPA to evaluate the potential environmental consequences of planned removal operations. See 42
U.S.C. § 4332(C); 40 C.F.R. § 1501.4. The resulting NEPA documentation would almost certainly spawn further
a “discrete . . . action that [BLM] is required to take,” SUWA, 542 U.S. at 64 (emphasis omitted),
an order from this court compelling that “discrete action” could have much broader detrimental
Further, should BLM fail to comply with the court’s order (and such a scenario is likely
given the practical and administrative obstacles already discussed) or if BLM simply does not
comply as quickly as Plaintiffs believe is warranted, this litigation would likely devolve into
protracted contempt proceedings. Such proceedings would again delve into an ultimately
superficial debate about BLM’s budget and require the court to nickel-and-dime the agency’s
nuanced resource allocations. More fundamentally, the success of a given removal operation is
largely tied to mercurial conditions on the ground—inclement weather, the horses’ fluctuating
resistance to various baiting and trapping methods, and even the day-to-day movement of
individual horses can affect the scope and outcome of a removal. The court would be forced to
closely scrutinize these conditions in order to evaluate the pace and scope of BLM’s efforts and,
further, to appraise BLM’s expert opinions on scattered horses on any given day of a removal
operation, the genetic viability of a particular herd, why a certain proportion of horses cannot be
removed in one roundup, the effectiveness of helicopter sweeps versus water-baiting, and so on.
These are calls the court is simply not equipped to make. As explained previously, BLM has no
discretion under Section Three to address identified overpopulations of wild horses that must be
removed in any other way than immediate removal. See Wyoming, 839 F.3d at 944. Nevertheless,
BLM retains limited discretion to decide how to achieve immediate removal both safely and
effectively. An order to remove here would inject this court into that narrow gap of discretion in
a manner amounting to “undue judicial interference” with BLM’s management of removal
litigation initiated by parties such as Defendant-Intervenors (who typically oppose significant removal operations of
any kind), further exacerbating delays and undermining removal efforts.
operations. Cf. SUWA, 542 U.S. at 66; San Juan Citizens All. v. Stiles, 654 F.3d 1038, 1045 (10th
Cir. 2011) (quoting Utah Envtl. Cong, v. Russell, 518 F.3d 817, 824 (10th Cir. 2008)) (“The
deference we give agency action ‘is especially strong where the challenged decisions involve
technical or scientific matters within the agency’s area of expertise.’”).
Based on the foregoing, the court concludes that the final factor weighs heavily against a
finding of unreasonable delay in this case. 26
5. BALANCE OF FACTORS
The court acknowledges that Plaintiffs are justifiably frustrated with the current state of
the range and the seeming inability of BLM to deal with identified overpopulations of wild
horses on lands that are meant to be managed sustainably for multiple uses. The court realizes
that Plaintiffs sincerely believe that BLM has inexcusably fumbled its compliance with a
mandatory statutory duty. More importantly, the court acknowledges the significant economic
strain placed on Plaintiffs by the continued degradation of the range. At the same time, the court
cannot ignore the profound administrative and practical obstacles facing BLM as it juggles
practically unworkable statutory responsibilities on a shoestring budget. Though it is a decidedly
close call, the court finds that these practical realities, coupled with the inadvisability of this
court injecting itself into wild horse and burro management in any significant capacity, weigh
decisively against a finding of unreasonable delay or the issuance of injunctive relief in this case.
Accordingly, the court holds that BLM has not “unreasonably delayed” removal action under
Although the court is permitted to retain jurisdiction over a matter to monitor an agency’s good-faith progress
even when declining to issue mandatory injunctive relief, see Mashpee Wampanoag, 336 F.3d at 1102, there is little
reason to retain jurisdiction in this case. Plaintiffs have not requested such relief and the court believes it is unlikely
to be able to provide further effectual relief given the above analysis. Accordingly, in addition to declining issuance
of a mandatory injunction, the court declines to retain jurisdiction over this matter. See In re Barr Laboratories, 930
F.2d at 76 (denying mandamus and refusing to retain jurisdiction over a case involving agency action where the
court could not grant effectual relief).
Section Three in the Bible Springs HMA, the Four-Mile HMA, the Frisco HMA, the Sulphur
HMA, or the Blawn Wash HA, see 5 U.S.C. § 706(1), and declines to compel BLM to act in
B. REMOVAL DETERMINATIONS FOR CHOKE CHERRY, MUDDY
CREEK, NORTH HILLS, AND SWASEY HMAs
The court now turns to the Plaintiffs’ claims regarding the Choke Cherry, Muddy Creek,
North Hills, and Swasey HMAs. BLM asserts that it is not currently obligated by law to remove
excess wild horses from these areas. While BLM “acknowledges that the horse numbers in these
four areas still exceed the appropriate management levels,” (Docket No. 117, at 16), the agency
nonetheless insists that the duty to immediately remove excess horses has not been triggered
because BLM has not made a corresponding determination that removal is necessary. See
Wyoming, 839 F.3d at 944 (holding that a duty to “immediately remove” arises only after BLM
determines that an overpopulation exists and that action is necessary to remove excess animals);
San Francisco BayKeeper v. Whitman, 297 F.3d 877, 885 (9th Cir. 2002) (“[F]or a claim of
unreasonable delay to survive, the agency must have a statutory duty in the first place.”). In
response, Plaintiffs assert that BLM has previously determined that excess animals must be
removed from each HMA in pre-2014 gather EAs and DRs. BLM argues that these
determinations do not trigger a current duty to remove because the removal actions those
documents contemplated are complete.
In essence, BLM argues that where it determines that an overpopulation exists on a given
HMA, decides that a removal action is necessary to achieve AML, and subsequently removes the
excess horses to reach that end, its obligation to remove under § 1333(b)(2) is satisfied. The
court must agree with this general principle. A contrary approach to BLM’s duty under §
1333(b)(2) would contravene the plain language of the statute and the Tenth Circuit’s
interpretation of that language in Wyoming. Section Three specifically requires BLM to make
determinations based on “current” inventories of wild horse populations and other “information
currently available” to BLM, indicating that the WHA contemplates recurring determinations of
both overpopulation and the necessity of removal in order to achieve AML. See 16 U.S.C. §
1333(b)(2) (emphases added). Further, the statute affords BLM significant discretion to decide
how to address an overpopulation once it is discovered. See Wyoming, 839 F.3d at 944 (finding
that the Act “quite clearly affords the BLM with discretion to decide whether or not to remove
excess animals”); 16 U.S.C. § 1333(b)(1) (indicating that where BLM determines an
overpopulation exists, it has discretion to decide “whether action should be taken to remove
excess animals . . . and [to] 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)”). This statutory structure indicates that once BLM has
fully addressed an overpopulation through the removal of excess animals and thereby achieved
the relevant AML, its determinations regarding that specific instance of overpopulation do not
compel the agency to address future overpopulations in precisely the same manner. In other
words, a determination of overpopulation in a given HMA generally must be accompanied by a
corresponding determination that removal of that specific overpopulation is necessary in order to
trigger a duty to remove under 16 U.S.C. § 1333(b)(2). 27 A plaintiff cannot lift a determination of
Plaintiffs cite to Colo. Wild Horse v. Jewell, 130 F. Supp. 3d 205 (D.D.C. 2015) for the proposition that previous
determinations of overpopulation and the need to remove in an EA remain operative, even after the removals
contemplated in that EA are complete. However, Plaintiffs fail to account for the fact that, in that case, BLM clearly
made new determinations regarding overpopulation and the need to remove and supported those new determinations
with environmental impacts analysis compiled in the previous EA. The Colorado Wild Horse court held only that
the environmental impacts analysis from the previous EA was sufficient to satisfy NEPA requirements for a new
removal. See 130 F. Supp. 3d at 216–17 (holding that tiering to a previously compiled removal analysis was
sufficient to justify a new removal where BLM concluded that the environmental impacts from the proposed
removal were not substaintially different from those evaluated in the previous analysis). The court did not hold, and
the case certainly does not suggest, that previous determinations of overpopulation and the need to remove somehow
perpetually bind the agency to remove, even after the removals contemplated in a particular EA are complete and the
the need for removal from a previously completed removal process and cobble it together with a
current determination of overpopulation in order to compel a removal of that overpopulation.
Applying this general principle to the facts of this case, the court finds that no current
duty to remove exists as to the Choke Cherry, Muddy Creek, or North Hills HMAs, but
concludes that BLM is still obligated to remove excess animals from the Swasey HMA. Each
individual HMA is addressed below.
1. CHOKE CHERRY HMA
As to the Choke Cherry HMA, Plaintiffs argue that BLM has not yet fulfilled its duty to
immediately remove an overpopulation slated for removal in a 2010 gather EA and DR and, as a
result, BLM is currently obligated to remove an existing overpopulation on the HMA. The court
Based on an aerial population survey conducted in late 2009, BLM determined that an
overpopulation of wild horses existed in the Eagle Complex, which included the Choke Cherry
HMA and two other adjacent HMAs. BLM estimated that the population of wild horses on the
Choke Cherry HMA was somewhere near seventy-nine head, 28 which exceeded the established
AML of thirty head, and concluded that the excess of forty-nine horses should be removed in
relevant AML has been achieved. This is also true as to a similar case cited by Plaintiffs for the same proposition.
See Friends of Animals v. U.S. Bureau of Land Mgmt., No. 2:15-cv-00118-CW, 2015 WL 803169, at *3–*4 (D.
Utah Feb. 25, 2015) (unpublished) (holding that BLM did not act arbitrarily or capriciously in tiering to previous
analyses because environmental impacts contemplated in those analyses were “directly relevant to the present
[proposed removal] action”).
BLM appears to have erroneously swapped the estimated population of the Choke Cherry and Mt. Elinore HMAs
at one point in the EA. One table prepared by BLM lists the estimated populations at seventy-nine head for Choke
Cherry HMA and at eighty-five for Mt. Elinore HMA, while the next page interchanges the population totals
between the two HMAs. (Compare AR016161 with AR016162). While it is not entirely clear from the record, the
court believes that the seventy-nine head figure is the appropriate estimate for the Choke Cherry HMA because
BLM proposed the removal of forty-nine head from the HMA in order to achieve the AML of thirty. This suggests
that BLM believed that the estimated population of Choke Cherry HMA was seventy-nine, since the removal of
forty-nine horses would leave the desired AML of thirty horses on the range. In any event, it appears that BLM
removed fifty-seven animals from the Choke Cherry HMA, which would achieve the AML regardless of whether
the estimated population were seventy-nine or eighty-five. (See AR 016231). Moreover, BLM concluded that the
post-removal population of Choke Cherry HMA was within AML. (AR010664).
order to “maintain AML ranges for the HMAs, [to] protect rangeland resources from further
deterioration associated with excess wild horses within the HMAs, and to restore a thriving
natural ecological balance and multiple use relationship on the public lands consistent with the
provisions” of Section Three. (AR016164). Accordingly, BLM proposed a removal of a total of
748 excess wild horses from the three HMAs, including forty-nine from the Choke Cherry HMA.
(AR016161, AR016166). BLM also proposed to gather additional mares that were to be treated
with the immunocontraceptive PZP-22 and released back to the range. BLM adopted the
proposal and authorized the gather and removal in a DR dated October 21, 2010. (AR016151–
Putting the removal plan into motion in early 2011, BLM conducted a pre-gather
population survey which estimated the population on the three HMAs at 995 head. (AR016228).
Conducted between January 4 and 19, 2011, the gather resulted in the removal of 817 horses
from the three HMAs, including fifty-seven from the Choke Cherry HMA. (AR016228,
AR016231). BLM estimated that the remaining wild horse population on the Choke Cherry
HMA was at the established AML of thirty head. (AR010664). The total post-removal herd size
within the three HMAs was estimated at 178 head, a number within the overall AML for the
Eagle Complex. (AR016228, AR016232).
Plaintiffs argue that the 2011 removal action did not fulfill BLM’s duty to remove wild
horses and that the agency is still obligated to remove excess wild horses from the Choke Cherry
HMA. Citing a subsequent BLM report, they assert that “only 49 [horses] were removed” from
the HMA in 2011, not the fifty-seven reported by the agency. (Docket No. 122, at 30 (citing
AR010644)). This argument is unavailing. Whether BLM actually removed forty-nine or fifty-
seven horses from the Choke Cherry HMA is ultimately irrelevant, 29 because BLM concluded
that the Eagle Complex generally and the Choke Cherry HMA specifically were within AML
after the removal action was complete. (AR016232, AR010664). Thus, BLM achieved the
ultimate purpose of the gather and removal action, which was to bring the Eagle Complex and
the Choke Cherry HMA within established AMLs.
Because the documented overpopulation on the Choke Cherry HMA was fully addressed
by the removal action in 2011, Plaintiffs cannot now rely on the determinations made prior to the
completed action to support their claim that BLM is currently obligated to remove horses from
the HMA. Consequently, Plaintiffs have failed to establish that BLM has made an operative
determination of a need to remove the current overpopulation of wild horses on the Choke
Cherry HMA. Until such a determination is made, BLM has no current duty to remove wild
horses from the Choke Cherry HMA under Section Three. See Wyoming, 839 F.3d at 944.
2. MUDDY CREEK HMA
Plaintiffs likewise argue that BLM has not fulfilled its duty to immediately remove an
overpopulation slated for removal from the Muddy Creek HMA in 2009 and the agency is
therefore obligated to remove the current overpopulation on the HMA. Again, the court
After population surveys conducted in March 2008 and June 2009, BLM found that the
wild horse population on the Muddy Creek HMA was likely between 188 and 194 head—well in
excess of the established AML maximum of 125 head. To address this overpopulation and to
Upon evaluation of the record, the court believes that the agency more likely removed fifty-seven horses from the
HMA during the 2011 gather. The document cited by Plaintiffs is an essentially unlabeled, possibly incomplete
report from several years after the removal action took place, which may or may not include all of the horses
actually removed in 2011. (See AR010644). The final narrative of the gather and removal action unequivocally
states that fifty-seven horses were removed from the Choke Cherry HMA. (AR016231). But the court need not
conclude definitively which report is accurate because, in any event, the HMA was within AML after the removal.
“move resources towards a thriving ecological balance [in] the area,” BLM completed an EA that
advocated the gather of 130 wild horses from the Muddy Creek HMA, the permanent removal of
100 of the gathered horses, and the return of remaining gathered mares to the range after
treatment with immunocontraceptives. (AR011015, AR011018–AR011019). In July 2009, BLM
issued a DR that adopted the EA’s proposed gather plan and authorized the permanent removal of
100 excess wild horses. (AR011006). Between July 12 and 14, 2009, BLM put the gather plan
into effect, gathering a total of eighty-seven horses and permanently removing them from the
Plaintiffs insist that the findings contained in the 2009 EA and DR triggered a duty to
“immediately remove” excess wild horses under Section Three of the WHA and that the July
2009 gather of eighty-seven horses did not fulfill that duty. Plaintiffs seem to argue that because
BLM only removed eighty-seven of the 100 wild horses it was authorized to remove, the
removal is incomplete and BLM is still obligated to remove the overpopulation that currently
exists on the Muddy Creek HMA. (See Docket No. 122, at 29). This argument ignores the
ultimate purpose of the July 2009 gather, which was “to achieve and maintain wild horse
[AML]” on the Muddy Creek HMA, not simply to remove 100 horses. (AR011007). In its final
report on the July 2009 gather, BLM determined that approximately seventy-five horses
remained on the HMA after the gather was complete, a total that accorded with the low-end of
the established AML. This result fulfilled the purpose of the gather and satisfied BLM’s statutory
duty to immediately remove excess animals from the HMA “so as to achieve appropriate
management levels.” See 16 U.S.C. § 1333(b)(2).
Although BLM acknowledges that an overpopulation of wild horses currently exists on
the Muddy Creek HMA, the findings contained in the 2009 EA and DR are no longer operative
and cannot compel the agency to act to remove that overpopulation. In sum, Plaintiffs have failed
to establish that a current duty to immediately remove wild horses under Section Three exists for
the Muddy Creek HMA.
3. NORTH HILLS HMA
Plaintiffs also argue that BLM has failed to fulfill its duty to immediately remove an
overpopulation of horses on the North Hills HMA that was slated for removal in December 2010.
Once again, the court must disagree.
Based on an aerial survey conducted in January 2010, BLM determined that the
population of wild horses on the North Hills HMA was approximately 250 head, far surpassing
the established AML upper limit of sixty head. (AR001654). BLM determined that the removal
of 210 horses was necessary “to achieve and maintain a population size within the established
AML, protect rangeland resources from further deterioration associated with the current
overpopulation, and restore a thriving natural ecological balance and multiple use relationship on
public lands consistent with the provisions” of Section Three. (AR001654–AR001655). The EA
also provided that an additional survey conducted closer to the proposed gather would be needed
“to more accurately determine the population of wild horses” on the HMA and to “adjust the
number of excess wild horses that would be gather[ed], removed, and treated with population
controls in order to reach the lower AML.” (AR001660).
In November 2010, BLM issued a DR approving the proposed gather and removal of 210
wild horses from the HMA. (AR001743–AR001746). Shortly thereafter, BLM conducted
another aerial survey and concluded that the actual population of the HMA was approximately
137 head. (AR003205). The BLM gathered and permanently removed ninety-seven of those
horses from the range between December 2 and 3, 2010. (AR003205–AR003206). This removal
left the post-gather population on the HMA at approximately forty horses, (AR003205),
matching the low end of the HMA’s established AML, (AR001743).
Plaintiffs again insist that this gather and removal was insufficient to fulfill BLM’s duty
to “immediately remove” excess animals under Section Three of the WHA because BLM failed
to remove the 210 animals outlined in its proposal. (Docket No. 122, at 28–29). Again, this
argument ignores the actual purpose of the removal action, which was to bring the wild horse
population within the established AML, not simply to remove 210 animals. (See AR001654–
AR001655). The argument also fails to account for the actual conditions on the ground in the
HMA at the time of the 2010 gather, i.e., that the actual population of wild horses was
significantly smaller than previous surveys had indicated. Directly before the gather, BLM
determined that the original estimated population of 250 head was no longer accurate and that
the actual population was closer to 137 head. (AR003205). Thus, in order to bring the current
population on the HMA to the lower end of the established AML, BLM needed to remove only
ninety-seven animals, not the 210 originally contemplated by the EA and DR. The removal of
ninety-seven horses achieved the stated objective of the gather and obviated any duty to remove
under Section Three.
Plaintiffs also argue that the 2010 EA and DR committed BLM to conduct additional
removals in 2012 and 2013, which did not occur. (Docket No. 122, at 28–29). This argument is
also unavailing. While the EA contemplated additional follow-up gathers and removals, BLM
indicated that these actions would only take place if the stated objectives of the proposed gather
and removal were not promptly achieved:
If gather efficiencies do not allow for the attainment of the Proposed Action
during the fall/winter of 2010/2011, the Color Country District will return to the
North Hills HMA in 2012 or 2013 to remove any additional wild horses
necessary in order to achieve the low range of AML and allow the BLM to
gather a sufficient number of wild horses so as to implement the population
control component of the proposed action . . . .
(AR001660). As explained above, BLM achieved the low end of the AML during the 2010
gather, obviating any need to return to finish the job. Moreover, the EA indicated that any followup gathers or removals would be dependent on new population inventories conducted after the
2010 gather, (AR001660), as well as additional NEPA analysis, (AR001692). Such contingent
proposals did not establish that an overpopulation of wild horses would actually exist or that
removal would actually be necessary in 2012 or 2013. The mere suggestion that BLM could
return for additional gathers depending on evaluation of subsequent population totals does not in
any way trigger BLM’s obligation to “immediately remove” excess animals under Section Three.
In sum, the overpopulation identified in the 2010 EA and DR was fully addressed by
December 2010 removal operation. Thus, Plaintiffs have failed to establish that BLM has
determined that removal of the current overpopulation on the North Hills HMA is necessary.
Until BLM determines that removal of excess horses on the North Hills HMA is currentlys
necessary, Section Three does not obligate BLM to make any removals there. See Wyoming, 839
F.3d at 944.
4. SWASEY HMA
Finally, Plaintiffs argue that BLM is currently obligated to remove excess wild horses
from the Swasey HMA. They assert that BLM determined both that an overpopulation existed on
that HMA and that action to remove excess animals was necessary in a 2012 gather EA, but that
BLM has thus far failed to fulfill the statutory duty triggered by those determinations. On this
count, the court must agree.
Based on an aerial survey conducted in 2011, BLM estimated the population of the
Swasey HMA was approximately 350 head, well beyond the established AML upper limit of 100
head. (AR011479, AR011491). BLM prepared an EA in November 2012 that determined that
removal of these excess horses was necessary “in order to achieve and maintain a population size
within the established AML, protect rangeland resources from further deterioration associated
with the current overpopulation, and restore a thriving natural ecological balance and multiple
use relationship on public lands in the area consistent with” Section Three of the WHA.
(AR011480). BLM acknowledged that “250 excess wild horses exist within the HMA and need
to be removed.” (AR011479). Despite these specific determinations, BLM proposed and
approved the removal of only 162 wild horses from the HMA, leaving a post-removal population
of 188 head—a number still well above the established AML upper limit of 100 head.
(AR011491 (EA proposal), AR016233 (DR approval)). Neither the EA nor the DR proffer any
explanation for the inconsistency between BLM’s findings and BLM’s approved plan, and
neither document appears to provide for further removals.
After execution of the planned gather in February 2013, BLM reported that only 160
horses—and not the identified excess of 250—were actually removed from the Swasey HMA
pursuant to the removal plan. (AR016243). Subsequent population estimates suggested that the
population on the range was left at approximately 160 head after the 2013 removal, a number in
excess of the established AML. (AR010668). The wild horse population increased to 180 head
by 2014, (AR010670), and again to 216 head by 2015, (AR010672). To date, the only
subsequent removal from the Swasey HMA appears to have occurred in May 2014, where one
horse was removed. (AR010645).
BLM asserts that the removal of 160 wild horses from the Swasey HMA in February
2013 fulfilled its duty to “immediately remove” excess animals under Section Three because the
removal achieved the specific management goals contemplated by the 2012 EA and DR. While it
is true that BLM only proposed and authorized the removal of “approximately 162 horses,” it
also specifically determined that “250 excess wild horses exist within the HMA and need to be
removed.” (AR011479). In other words, BLM concluded that an overpopulation of
approximately 250 horses existed on the HMA and that action was necessary to remove animals
in excess of the established AML upper limit of 100 head. 30 These specific determinations
clearly triggered a duty under Section Three to “immediately remove” the identified excess wild
horses from the HMA. See 16 U.S.C. § 1333(b)(2). Contrary to BLM’s argument, this statutory
duty is keyed to the number of animals that must be removed in order to achieve AML, not to the
number the agency plans to remove or actually removes. See Wyoming, 839 F.3d at 944
(explaining that a duty to immediately remove under Section Three is triggered by a
determination “that an overpopulation exists in a given HMA” and “that action is necessary to
remove excess animals” to within AML). Once BLM determines that removal is necessary in
order to achieve AML, the agency cannot attempt to achieve AML through other means or
otherwise shirk immediate removal of excess animals to within AML.
Had BLM explained that an overpopulation of approximately 250 horses existed within
the HMA, then determined that removal of only 160 or so horses was necessary “to achieve and
maintain a population size within the established AML,” (see AR011480), that would be fully
within the agency’s statutory discretion to “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),” see 16 U.S.C. § 1333(b)(1); Wyoming,
839 F.3d at 944 (explaining that Section Three “quite clearly affords the BLM with discretion to
The term “excess” as used in the WHA carries a particular connotation when used to describe wild horses or
burros. The Act defines “excess animals,” in pertinent part, as “wild free-roaming horses or burros . . . which must
be removed from an area in order to preserve and maintain a thriving natural ecological balance and multiple-use
relationship in that area.” 16 U.S.C. § 1332(f).
decide whether or not to remove excess animals”). But that is not the determination that BLM
made here. Instead, BLM determined that all animals in excess of the upper limit of the
established AML for the Swasey HMA “need[ed] to be removed,” (AR011479), but made only
partial provision for their removal. The court can find no clear explanation in the record for
BLM’s decision to remove less than the number of excess wild horses that the agency
determined should be removed from the HMA in order to achieve AML. Because BLM failed to
fully address its own determination that horses above the upper limit of the AML must be
removed, the court finds that BLM did not fulfill its statutory duty under Section Three to
“immediately remove excess animals from the range so as to achieve appropriate management
levels” on the Swasey HMA. See 16 U.S.C. §1333(b)(2). And, since BLM has not taken any
further steps to address the continuing overpopulation on the Swasey HMA, a duty to
immediately remove excess wild horses is still operative and binds the agency to act.
Unlike the other three HMAs discussed in this section, Plaintiffs have established that
BLM has a current duty to remove excess horses from Swasey HMA and have properly
identified a “discrete action that [BLM] is required to take” under 5 U.S.C. § 706(1). See SUWA,
542 U.S. at 64 (emphasis omitted). As a result, the question before the court regarding the
Swasey HMA is identical to the question answered above regarding the four HMAs and single
HA in the previous section, i.e., whether BLM has “unreasonably delayed” the removal action it
was required to take under Section Three. See 5 U.S.C. § 706(1). And the analysis is much the
same. Although the delay here is somewhat greater than the HMAs and HA previously analyzed,
the Swasey HMA is not so unique that an evaluation of the TRAC factors would tip in favor of a
mandatory injunction. Accordingly, for the reasons discussed in the previous section, the court
holds that BLM has not “unreasonably delayed” required removal action in the Swasey HMA.
PLAINTIFFS’ CLAIMS REGARDING REMOVAL FROM PRIVATE
LANDS UNDER SECTION FOUR OF THE WHA
Finally, the court addresses Plaintiffs’ claims under Section Four of the WHA. Section
Four provides for the removal of wild horses and burros that stray onto private land: “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 marshall or agent of the Secretary, who shall arrange to
have the animals removed.” 16 U.S.C. § 1334. Associated regulations require private landowners
to submit written notification of wild horses on their land to BLM representatives. 43 C.F.R. §
4720.2-1. The notification must include a count of the animals present on the property, the date
the animals were sighted, a legal description of the property, and “any special conditions that
should be considered in the gathering plan.” Id. Once the written request has been proffered to
BLM, an agency representative “shall remove stray wild horses and burros from [the] private
lands as soon as practicable.” Id.
Here, Plaintiffs argue that BLM has not adequately responded to their written requests to
remove wild horses that have strayed onto their lands pursuant to Section Four. Plaintiffs assert
that BLM has thus far responded to their written requests for removal by attempting to coax stray
horses off the private lands and back onto public land through opened gates, (Docket No. 103, at
58), and by herding stray horses back onto public lands with helicopter sweeps, (Docket No. 122,
at 34–35). Plaintiffs insist that this does not fulfill BLM’s ministerial duty to “arrange to have the
animals removed” under Section Four. Instead, “Plaintiffs contend that the ‘duty’ under Section
[Four] is to ‘remove’ [the animals] from private land and not merely to ‘move’ [the animals] off
private land onto the adjacent HMA.” (Docket No. 122, at 34). Plaintiffs seem to suggest that
Section Four requires BLM to prevent stray horses from ever returning to private lands once
removed. (See Docket No. 103, at 58–59).
The court can find no support for Plaintiff’s interpretation. 31 Even a cursory reading of
the statute indicates that moving horses off of private land and onto an adjacent HMA satisfies
BLM’s removal duty under Section Four. That section requires only that BLM “arrange to have
[stray] animals removed” when they are found on private land. 32 See 16 U.S.C. § 1334. The
section does not specify the location to which the animals will be removed, the speed with which
removal must occur, or even how the removal is to be accomplished. Further, Section Four “does
not charge the BLM with the duty to ‘prevent’ wild horses from straying” in the first instance.
Fallini v. Hodel, 783 F.2d 1343, 1345–46 (9th Cir. 1986). Thus, even if the horses stray back
onto private lands after being removed to adjacent public lands, BLM has not shirked any duty
under the WHA. See id. Wild horses are, after all, wild. Their movement across artificial
boundaries between private and public lands is likely unavoidable, even where fencing or other
physical barriers may be present. Section Four clearly anticipates this problem and provides a
remedy for private land owners who find wild horses have strayed onto their land, but it does not
purport to provide any permanent solution. Thus, the court is not convinced that BLM’s general
Plaintiffs’ argument depends almost entirely on Am. Wild Horse Pres. Campaign v. Jewell, No. 14-cv-0152-NDF,
2015 WL 11070090, at *7 (D. Wyo. Mar. 3, 2015) (unpublished), overruled by 847 F.3d 1174 (10th Cir. 2016)
(“Section ’s unqualified mandate is the removal of free-roaming horses that stray from public lands onto
privately owned lands, not the movement of horses from private lands to adjacent public lands.”). Plaintiffs’ reliance
on that case is misplaced. The court notes that the district court’s reasoning in American Wild Horse Preservation
Campaign was essentially limited to the fact pattern present in that case—a unique arrangement of public and
private land in a checkerboard pattern that severely complicated removal of stray horses from private lands. Such an
arrangement is not present in this action. And, more crucially, the case and much of its reasoning regarding Section
Four was overruled on appeal by the Tenth Circuit. See Am. Wild Horse Pres. Campaign, 847 F.3d at 1186–89.
To avoid confusion, the court pauses to note that it does not agree with BLM’s suggestion that it need not actually
remove stray horses, only “arrange” for their removal. (Docket No. 117, at 24). This is a distinction without a
difference. While Section Four’s removal mandate does not carry the same urgency as the corresponding removal
mandate in Section Three, there is no indication in the language of Section Four that BLM can simply throw up its
hands if the initial arrangements it makes for removal are unsuccessful. See 16 U.S.C. § 1334. Indeed, BLM’s own
regulations require that “the authorized officer . . . remove stray wild horses and burros from private lands as soon as
practicable.” 43 C.F.R. § 4720.2-1 (emphasis added). Thus, Section Four and associated regulations plainly require
that BLM remove stray animals from private land upon proper notification from the land owner. Nothing in the
court’s analysis should be read to indicate otherwise.
practice of removing horses from private lands by moving them back onto adjacent public lands
somehow falls short of Section Four’s mandate.
Insofar as Plaintiffs argue that BLM has unreasonably delayed in fulfilling its ministerial
duty to remove horses from private land, (Docket No. 103, at 59), they have failed to support that
argument with evidence in the record. Plaintiffs have not pointed to any tangible delay, let alone
unreasonable delay, in the BLM’s response to the requests for removal of wild horses from
private lands. 33 In fact, Plaintiffs have only requested that the court compel removal “to the
extent that removal requests . . . remain unfulfilled.” (Id.). Plaintiffs have not demonstrated or
even alleged that completed attempts to move stray horses off private lands were unsuccessful.
Most importantly, because many of the requests at issue were made years ago, the court does not
know whether the stray horses at issue are still present on private land or have long since
returned to adjacent public lands. The court only knows that BLM has affirmatively worked with
landowners to remove stray horses from private land and has actually removed at least sixty-one
horses in response to written requests. Plaintiffs have not persuaded this court that these
responses were unreasonably delayed or otherwise inadequate. Cf. Biodiversity Conservation All.
v. Jiron, 762 F.3d 1036, 1060 (10th Cir. 2014) (“When courts consider . . . challenges [under the
APA], an agency’s decision is entitled to a presumption of regularity, and the challenger bears the
To the extent that Plaintiffs allege that BLM has delayed removal of wild horses from lands owned by the State of
Utah School & Institutional Trust Lands Administration (“SITLA”), the court is not convinced that Plaintiffs have
any statutory standing to demand removal from those lands. See Catron Cty. Bd. of Comm’rs v. U.S. Fish & Wildlife
Serv., 75 F.3d 1429, 1434 (10th Cir. 1996) (“In addition to Article III standing requirements, a plaintiff seeking
judicial review pursuant to the APA must . . . demonstrate that its claims fall within the zone of interests protected
by the statute forming the basis of its claims.”); Claybrook v. Slater, 111 F.3d 904, 907 (D.C. Cir. 1997) (“[I]f the
plaintiff’s claim has no foundation in law, he has no legally protected interest and thus no standing to sue.”).
Section Four does not provide any rights to grazing permittees or the like—instead it plainly provides a remedy only
to “the owners” of private lands where wild horses or burros are found. See 16 U.S.C. § 1334 (emphasis added).
In any event, SITLA, the owner of the state lands in question, has already asserted its rights under
Section Four and a lawsuit regarding its claims was recently dismissed pursuant to a settlement agreement. Plaintiffs
have not pointed to any injury beyond that already addressed in that case and have therefore failed to demonstrate
that injunctive relief is necessary. Moreover, Plaintiffs cannot rely on any purported delay in removal from SITLA
lands to buttress their own claim for injunctive relief under Section Four.
burden of persuasion.” (quoting San Juan Citizens All. v. Stiles, 654 F.3d 1038, 1045 (10th Cir.
2011)); Utah Native Plant Soc’y v. U.S. Forest Serv., No. 2:16-cv-56-PMW, 2017 WL 822098, at
*8 (D. Utah Mar. 2, 2017) (unpublished) (citing Norton v. So. Utah Wilderness All., 542 U.S. 55,
64 (2004)) (placing the burden of persuasion on those challenging agency inaction).
While the court is sensitive to Plaintiff’s obvious frustration with the manner and speed
of BLM’s response to their requests for removal, the court notes that Section Four does not
prescribe any particular method or timeframe for BLM’s removal efforts from private land. See
16 U.S.C. § 1334. And although relevant regulations require the BLM to respond to landowners’
requests for removal “as soon as practicable,” see 43 C.F.R. § 4720.2-1, the lack of specific
evidence in the record regarding the current status of the relevant requests precludes the proper
evaluation of any delay. The court declines to issue a generalized order that does nothing more
than admonish BLM to obey the law. Cf. SUWA, 542 U.S. at 66–67 (cautioning against the
issuance of “general orders compelling compliance with broad statutory mandates”); Midland
Pizza, LLC v. Southwestern Bell Tel. Co., 277 F.R.D. 637, 640–41 (D. Kan. 2011) (“An
injunction simply requiring defendant to obey the law . . . is too vague to satisfy Rule 65.”).
The court concludes that Plaintiffs’ demand for mandatory injunctive relief under the
APA, 5 U.S.C. § 706(1), must be DENIED.
As this denial resolves the administrative review before the court, the above-captioned
action is DISMISSED in its entirety.
The clerk of court is further ORDERED to close this docket.
IT IS SO ORDERED.
Signed this, the 11th day of July, 2017.
BY THE COURT
Jill N. Parrish
United States District Court Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?