799 F.2d 1423 (10th Cir. 1986), 82-1485, Mountain States Legal Foundation v. Hodel

Docket Nº:82-1485.
Citation:799 F.2d 1423
Party Name:MOUNTAIN STATES LEGAL FOUNDATION, a nonprofit corporation, on behalf of its members who use and enjoy the public lands in the Rock Springs, Wyoming area, and the Rock Springs Grazing Association, which owns and leases lands in the Rock Springs, Wyoming area, Plaintiffs-Appellants, v. Donald P. HODEL, Secretary of the Interior, James W. Byrd, as Uni
Case Date:August 22, 1986
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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799 F.2d 1423 (10th Cir. 1986)

MOUNTAIN STATES LEGAL FOUNDATION, a nonprofit corporation,

on behalf of its members who use and enjoy the public lands

in the Rock Springs, Wyoming area, and the Rock Springs

Grazing Association, which owns and leases lands in the Rock

Springs, Wyoming area, Plaintiffs-Appellants,

v.

Donald P. HODEL, Secretary of the Interior, James W. Byrd,

as United States Marshal of the District of Wyoming, Frank

Gregg, individually, former Director of the Bureau of Land

Management, and the United States of America, Defendants- Appellees,

Environmental Defense Fund, Inc., National Audubon Society,

National Wildlife Federation, and Defenders of

Wildlife, Amici Curiae.

No. 82-1485.

United States Court of Appeals, Tenth Circuit

August 22, 1986

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Constance E. Brooks, Mountain States Legal Foundation, Denver, Colo. (R. Norman Cramer, Jr., Mountain States Legal Foundation, Denver, Colo., and Calvin Ragsdale of Marty & Ragsdale, Green River, Wyo., with her on supplemental brief on rehearing), for plaintiffs-appellants.

Donald Alan Carr (Peter R. Steenland, Jr. and Dianne H. Kelly, and F. Henry Habicht II, Asst. Atty. Gen., with him on supplemental brief on rehearing), Dept. of Justice, Washington, D.C., for defendants-appellees.

Michael J. Bean of Environmental Defense Fund, Inc., Hope M. Babcock of National Audubon Society, and Jerry Jackson, National Wildlife Federation, Washington, D.C., submitted a joint brief of amici curiae.

Brian B. O'Neill, Amy B. Bromberg and Alan M. Anderson of Faegre & Benson, Minneapolis, Minn., submitted a brief of amicus curiae for Defenders of Wildlife.

Before HOLLOWAY, Chief Judge, and SETH, BARRETT, McKAY, LOGAN, SEYMOUR and MOORE, Circuit Judges.

McKAY, Circuit Judge.

The Mountain States Legal Foundation and the Rock Springs Grazing Association (collectively referred to hereinafter as "the Association") brought this action on behalf of their members against the Secretary of the Interior and other government officials to compel them to manage the wild horse herds that roam public and private lands in an area of southwestern Wyoming known locally as the "checkerboard." 1 The checkerboard comprises over one million acres of generally high desert land and has been used by the Association since 1909 for the grazing of cattle. The lands involved in this case are in the Rock Springs District of the checkerboard, an area approximately 40 miles wide and 115 miles long. Record, vol. 1 at 17; Appellant's Brief at 5-6. In this area of the checkerboard, the Association's cattle roam freely on property owned by the Association and on the alternate sections of land owned by the federal government. Thousands of wild horses also roam these lands.

The Association sought a declaratory judgment that the Secretary had mismanaged the wild horses, and that the Secretary's failure to remove wild horses from the Association's lands was arbitrary and capricious. On this basis, the Association also sought a writ of mandamus to compel the Secretary to remove the wild horses from its lands and to reduce the size of the wild horse herds on adjacent public lands. The Association also sought damages under the Fifth Amendment for the alleged uncompensated taking of its lands. For this alleged taking, the Association sought to recover $500,000 from the Director of the Bureau of Land Management ("BLM") and ten dollars from the United States.

The district court granted the Association's petition for mandamus, dismissed the Association's claim against the Director of the BLM, and granted summary judgment for the government on the Association's Fifth Amendment takings claim. The Association appealed the dismissal of the claim against the Director and the grant of summary judgment. The government did not challenge the grant of mandamus on appeal. We affirmed the dismissal, but reversed and remanded the grant of summary judgment, holding that an unresolved factual issue precluded a summary determination of the takings claim. Mountain States Legal Foundation v. Clark, 740 F.2d 792 (10th Cir.1984), vacated sub nom.

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Mountain States Legal Foundation v. Hodel, 765 F.2d 1468 (10th Cir.1985). 2 We granted the government's petition for rehearing en banc to consider whether the Secretary's failure to manage the wild horse herds, in accordance with the requirements of the Wild Free-Roaming Horses and Burros Act, 16 U.S.C. Secs. 1331-1340 (1982), gives rise to a claim for a taking of the Association's property under the Fifth Amendment. We also consider whether the trial court properly dismissed the Association's claim against the Director of the BLM.

Wild horses and burros are the progeny of animals introduced to North America by early Spanish explorers. They once roamed the western rangelands in vast herds. But over time, desirable grazing land was fenced off for private use, while the animals were slaughtered for sport and profit. The herds began to dwindle, and the remaining animals were driven to marginal, inhospitable grazing areas. Alarmed at decline of these herds, Congress in 1971 enacted the Wild Free-Roaming Horses and Burros Act, 16 U.S.C. Secs. 1331-1340 (1982), to protect the wild horses and burros from "capture, branding, harassment, or death." Id Sec. 1331. According to congressional findings, these "living symbols of the historic and pioneer spirit of the West" had been cruelly slain, used for target practice, and harassed for sport. S.Rep. No. 242, 92d Cong., 1st Sess., reprinted in 1971 U.S.Code Cong. & Ad.News 2149, 2149. Congress also found that the wild horses and burros had been exploited by commercial hunters who sold them to slaughterhouses for the production of pet food and fertilizer. Id.; see also Johnston, The Fight to Save a Memory, 50 Texas L.Rev. 1055, 1056-57 (1972).

Established under authority granted Congress by the Property Clause of the Constitution, 3 the Act declares wild horses and burros to be "an integral part of the natural system of the public lands," 16 U.S.C. Sec. 1331 (1982), and mandates that the animals be managed "as components of the public lands." Id. Sec. 1333(a). The Act directs the Secretary to protect and manage the wild horses and burros "in a manner that is designed to achieve and maintain a thriving natural ecological balance on the public lands." Id. Section 1334 of the Act provides that, if wild horses or burros stray from public lands onto privately-owned land, the owner of such lands may inform a U.S. Marshal or an agent of the Secretary, who shall arrange to have them removed. Any person who "maliciously causes the death or harassment of any wild free-roaming horse or burro" is subject to criminal penalties. Id. Sec. 1338(a)(3). The Department of the Interior has defined "malicious harassment" as

any intentional act which demonstrates a deliberate disregard for the well-being of wild free-roaming horses and burros and which creates the likelihood of injury, or is detrimental to normal behavior patterns of wild free-roaming horses and burros including feeding, watering, resting, and breeding. Such acts include, but are not limited to, unauthorized chasing, pursuing, herding, roping, or attempting to gather or catch wild free-roaming horses and burros.

43 C.F.R. Sec. 4700.0-5(k) (1985).

The Association alleges that the Secretary has disregarded its repeated requests to remove wild horses from its lands, that it is prohibited by section 1338 of the Act from removing the wild horses itself, and that the wild horses grazing on its lands have eroded the topsoil and consumed vast quantities of forage and water. In support

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of its Fifth Amendment claim, the Association argues that "it is the panoply of management responsibilities set forth in the Act and its regulations, including [section 1334], which ... subject the United States to liability due to its pervasive control over the horses' existence." Appellant's Supp. Brief on Rehearing En Banc at 8 (emphasis added). In our prior opinion in this case, a panel of this court, with one judge dissenting, found that the government's "complete and exclusive control" over wild horses made the Wild Free-Roaming Horses and Burros Act "unique" in the field of wildlife protection legislation. 740 F.2d at 794. This degree of control, the court said, was potentially "significant" in determining the government's liability under the Fifth Amendment. Id. With the benefit of additional briefing and oral argument, it is now apparent to us that, in the area of wildlife protection legislation, there is nothing novel about the nature and degree of the government's control over wild horses and burros.

At the outset, it is important to note that wild horses and burros are no less "wild" animals than are the grizzly bears that roam our national parks and forests. Indeed, in the definitional section of the Act, Congress has explicitly declared "all unbranded and unclaimed horses and burros on public lands" to be "wild horses and burros." 16 U.S.C. Sec. 1332(b) (1982) (emphasis added). 4

It is well settled that wild animals are not the private property of those whose land they occupy, but are instead a sort of common property whose control and regulation are to be exercised "as a trust for the benefit of the people." Geer v. Connecticut, 161 U.S. 519, 528-29, 16 S.Ct. 600, 604, 40 L.Ed. 793 (1896), overruled on other grounds, Hughes v. Oklahoma, 441 U.S. 322, 99 S.Ct. 1727, 60 L.Ed.2d 250 (1979). 5 The governmental trust responsibility for wildlife is lodged initially in the states, but only "in so far as its exercise may not be incompatible with, or restrained by, the rights conveyed to the Federal government by the Constitution." Id. at 528; see also Martin v. Lessee of Waddell, 41 U.S. (16 Pet.) 367, 410, 10 L.Ed. 997 (1842). Neither state nor federal authority over wildlife is...

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