American Horse Protection Ass'n, Inc. v. Watt, 82-1070

• Decision Date: 10 December 1982
• Docket Number: No. 82-1070,82-1070
• Citation: 694 F.2d 1310
• Parties: , 13 Envtl. L. Rep. 20,156 AMERICAN HORSE PROTECTION ASSOCIATION, INC., et al. v. James G. WATT, Secretary, United States Department of the Interior, et al., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1310

694 F.2d 1310

224 U.S.App.D.C. 335, 13 Envtl. L. Rep. 20,156

AMERICAN HORSE PROTECTION ASSOCIATION, INC., et al. v. James G. WATT, Secretary, United States Department of the Interior, et al., Appellants.

No. 82-1070.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 9, 1982.

Decided Dec. 10, 1982.

James P. Leape, Atty., Dept. of Justice, Washington, D.C., with whom Dirk D. Snel, Atty., Dept. of Justice, Washington, D.C., was on the brief for appellants, Watt, et al.

Russell J. Gaspar, Washington, D.C., for appellees.

Murdaugh Stuart Madden and Roger A. Kindler, Washington, D.C., also entered an appearance for appellees, Humane Society of the United States.

Before ROBINSON, Chief Judge, and WALD and GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge GINSBURG.

Opinion, dissenting in part, filed by Chief Judge SPOTTSWOOD W. ROBINSON, III.

GINSBURG, Circuit Judge:

The Bureau of Land Management ("BLM") ¹ manages a herd of wild horses that roams public lands near Challis, Idaho. In 1976 the district court permanently enjoined BLM from removing horses from the range without the court's approval. This is an appeal from the district court's November 19, 1981, order denying the Agency's motion to dissolve the 1976 injunction. We find no error in the district court's determination that BLM has not complied with instructions the district court supplied in its 1976 decree. But we hold that a 1978 change in the governing statute has superseded the court instructions at issue and compels a remand for prompt reconsideration of the Agency's motion.

I. BACKGROUND

In 1971 Congress enacted the Wild Free-Roaming Horses and Burros Act ("Wild Horse Act"), 16 U.S.C. Secs. 1331-1340. The Act responded to the congressional concern that wild horses and burros, "living symbols of the historic and pioneer spirit of the West," were "fast disappearing from the American scene." 16 U.S.C. Sec. 1331. The legislation extended federal protection to wild horses and empowered BLM to manage horses roaming public ranges as a part of the Agency's management of the public lands. At the time Congress passed the Act the Challis herd numbered 150. ²

The Challis public lands comprise 330,122 acres. ³ Wild horses range on about 197,330 acres of that terrain; ⁴ of that area, 146,214 acres make up the range accessible to horses in winter. ⁵ The limited forage on the winter range determines the maximum number of wild horses that can survive on the Challis-area lands. ⁶ In its current condition, with cattle competing for forage on the winter range in the summer, the winter range can, without significant deterioration of the range, support a stable herd of about 340 horses. ⁷

In 1976 BLM proposed to reduce the Challis herd (numbering, according to a 1975 count, 407 horses) to the 1971 herd size of 150 animals. The American Horse Protection Association ("AHPA") challenged the Agency's plan. The district court enjoined the removal of horses by BLM, for the following reasons: ⁸

a) The Wild Horse Act's section 1333(a) mandate of "minimal feasible level[s]" of management by the Agency required BLM to consider "all alternative courses of action" that would affect the wild horse population less severely than would the proposed roundup and removal. Restricting cattle grazing on the horses' winter range--an option BLM had failed to consider closely--was a viable alternative that might achieve greater protection of the horses with less management by the Agency, and that therefore merited "full and careful consideration." ⁹

b) BLM's plan was based on inadequate data on horse population and other herd characteristics. ¹⁰

c) BLM failed adequately to consider means of population control that might reduce the need for periodic removal of horses, for example, concentrating roundup efforts on fertile mares. ¹¹

d) BLM failed to provide for on-site veterinary assistance during the roundup, violating the Wild Horse Act's requirement that removal measures be humane. ¹²

e) BLM proposed to round up horses before completing an environmental impact statement ("EIS") then under preparation by the Agency. ¹³

In the period 1976-78 BLM studied the management of the Challis lands and weighed alternative control strategies. BLM followed its "Management Framework Plan" ("MFP"). This process involved: conducting a preliminary analysis of the resources available; MFP-Step 1--proposing alternative courses of action; MFP-Step 2--analyzing these alternatives, assessing environmental impacts, and arriving at compromise proposals; MFP-Step 3--formulating a Range Management Plan ("RMP") and assessing its impacts. ¹⁴ BLM's "Final Supplemental Environmental Statement" ("FSES"), which analyzed alternatives and specified the Agency's "Proposed Action," was filed in November 1978; a "Summary Report" of BLM's final (revised) Range Management Program issued in March 1979. Appendix (App.) 25-39. ¹⁵

By 1979 the herd had grown to 767 animals. BLM, under the district court's supervision, agreed with AHPA to remove only 167 horses that year, about half the number the Agency had planned to cull. Under a similar agreement BLM removed 307 horses in 1980. On both occasions the district court refused to dissolve the 1976 injunction.

In 1981 BLM proposed to cull a further 200 horses from the then 400-animal herd. The district court denied permission. ¹⁶ It found that BLM had failed to comply with the court's 1976 decision instructing the Agency to give serious, detailed consideration to the possibility of protecting the horses' winter range by restricting cattle grazing. Further, the court rejected BLM's argument that 1978 amendments to the Wild Horse Act superseded the 1976 judicial stop order against removals pending careful study of a winter range management plan. Based upon these two determinations the court ordered that the 1976 injunction remain in full force and effect.

II. COMPLIANCE WITH THE 1976 INJUNCTION

BLM contends initially that it accorded sufficient consideration to protecting the wild horse winter range and thereby adequately complied with the 1976 decree. ¹⁷ But the district court, after a hearing, found that the Agency "fail[ed] to give full consideration to alternatives involving the restriction of livestock grazing on the crucial winter range areas," ¹⁸ and thus failed to fulfill the 1976 mandate. On the record before us, that finding is well supported.

We note at the outset that the question whether BLM gave "full and careful" consideration to restricting livestock grazing on the winter range is largely one of fact. District court adjudications of such questions should be reviewed under a "clearly erroneous" standard. Dayton Board of Education v. Brinkman, 433 U.S. 406, 417, 97 S.Ct. 2766, 2774, 53 L.Ed.2d 851 (1977); Booker v. Special School District No. 1, 585 F.2d 347, 353 (8th Cir.1978), cert. denied, 443 U.S. 915, 99 S.Ct. 3106, 61 L.Ed.2d 878 (1979). The district court heard the testimony of, and questioned BLM's experts; this court of review will not second-guess the trial court's skeptical assessment of testimony that court witnessed. Moreover, the documentary evidence abundantly supports the determination that BLM had not met the district court's command.

The 1976 injunction contemplated the possibility of a stable herd comprising more than the 340 horses that the winter range in its current condition can support. The Agency was to consider the possibility that cattle might be excluded from the winter range, leaving more winter forage for the horses. ¹⁹ The record securely indicates that BLM did not extensively consider eliminating or reducing livestock grazing on the winter range.

In MFP-Step 1 the Agency advanced two alternative strategies for protecting the winter range: eliminating cattle altogether from that range, and using fencing to segregate cattle and wild horses competing for the winter range's resources. Both approaches were rejected by BLM in MFP-Step 2, the first because it would have too great an impact on the local economy, the second because fencing was judged too expensive and likely to interfere with wildlife migration. The analysis and resulting rejection of both plans to protect the winter range occupied two pages of the agency record. ²⁰ The "Revised Range Management Program" and other alternatives presented in the FSES and the final RMP do not consider the possibility of fencing the winter range. ²¹ BLM, the written record thus suggests, proceeded with dispatch in rejecting winter range strategies, and was reticent in explaining why it did so. App. 22-24. In addition, BLM's 1981 district court testimony relating to the winter range is brief and, even as it emerges from a transcript, not particularly convincing. ²²

BLM emphasizes, however, that it did give more extensive consideration to the option of managing the Challis-area lands so as to impose "minimum constraints" on the wild horses. ²³ We find BLM's "minimum constraints" alternative puzzling. At first glance, and colored by BLM's description of the option as a plan that would "[m]aximize wild horses," ²⁴ one might conclude that this alternative insulated horses from all competition with cattle by securing the horses' entire range. On closer inspection, however, it appears that the option presupposes the winter range as it now exists, a range that cannot accommodate more than 340 horses because of continued cattle grazing in summer. In any event, it is plain that the "minimum constraints" plan did not track the district court's 1976 directive to focus on protecting the winter range. ²⁵

The 1976 decision is clear in its insistence upon full consideration for the option of protecting the winter range by curtailing cattle grazing. ²⁶ BLM's efforts to fulfill that condition have been, at best, half-hearted. We therefore find unassailable the district court's rejection of BLM's claim that it has adequately complied with...