Rock Springs Grazing Ass'n, Corp. v. Salazar

• Decision Date: 03 April 2013
• Docket Number: Case No. 11–cv–263.
• Citation: 935 F.Supp.2d 1179
• Parties: ROCK SPRINGS GRAZING ASSOCIATION, a Wyoming Corporation, Petitioner, v. Ken SALAZAR, in his official capacity as Secretary of the Department of the Interior; et al., Respondents, and American Wild Horse Preservation Campaign, et al., Respondent–Intervenors.
• Court: U.S. District Court — District of Wyoming

935 F.Supp.2d 1179

ROCK SPRINGS GRAZING ASSOCIATION, a Wyoming Corporation, Petitioner,

v. Ken SALAZAR, in his official capacity as Secretary of the Department of the Interior; et al., Respondents,andAmerican Wild Horse Preservation Campaign, et al., Respondent–Intervenors.

Case No. 11–cv–263.

United States District Court, D. Wyoming.

April 3, 2013.

Constance E. Brooks, Michael B. Marinovich, C.E. Brooks & Associates, P.C., Denver, CO, L. Galen West, West Law Office, P.C., Rock Springs, WY, for Petitioner.

Ignacia S. Moreno, Assistant Attorney General, Seth M. Barsky, Section Chief, Coby Howell, Trial Attorney, U.S. Department of Justice, Portland, OR, for Federal Respondents.

MEMORANDUM OPINION GRANTING JOINT MOTION TO DISMISS

NANCY D. FREUDENTHAL, Chief Judge.

This matter comes before the Court on a joint motion to dismiss filed by Petitioner Rock Springs Grazing Association (RSGA) and Respondents (collectively BLM) pursuant to Federal Rules of Civil Procedure 41(a)(2) and the terms of the Consent Decree and Joint Stipulation for Dismissal (Consent Decree). Document (Doc.) No. 81; 81–1. For background purposes, RSGA filed this case requesting the Court direct the BLM to remove all of the wild horses that had strayed onto the RSGA lands within the Wyoming Checkerboard, which is a strip of land containing approximately two million acres of private and federal land following the railroad from Tipton to Bryan, Wyoming. The BLM resisted, advancing various reasons why the Court could not grant the relief requested. The BLM also argued it met its legal obligations by past actions, and by making arrangements to remove wild horses from RSGA lands. At the hearing, RSGA and the BLM requested the Court defer ruling, to afford the parties an opportunity to engage in settlement discussions. After some delay, RSGA and the BLM resolved their differences and filed a Joint Motion to Dismiss with Consent Decree.

The International Society for the Protection of Mustangs and Burros, the American Wild Horse Preservation Campaign, and The Cloud Foundation (Intervenors) received a copy of the Consent Decree on January 11, 2013. Doc. No. 81, ¶ 6. The Joint Motion to Dismiss Case with the Consent Decree was filed with the Court on February 12, 2013. On February 25, 2013, Intervenors filed their opposition to the terms of the Consent Decree. Doc. No. 86. The Court has considered the filings and is otherwise informed in the premises, and will grant the Joint Motion to Dismiss and approve the Consent Decree in the form provided.

BACKGROUND

A. Wild Free–Roaming Horses and Burros Act

The Wild Free–Roaming Horses and Burros Act, 16 U.S.C. §§ 1331–1340 (the Wild Horses Act), recognizes that “wild free-roaming horses and burros ... belong to no one individual. They belong to all the American people.” S.Rep.No. 242, 92d Cong., 1st Sess. 1 (1971). “In structure and purpose, [the Wild Horses Act] is nothing more than a land-use regulation enacted by Congress to ensure the survival of a particular species of wildlife.” Mountain States Legal Foundation v. Hodel, 799 F.2d 1423, 1428 (10th Cir.1986). Reflecting this, the Wild Horses Act directs the Secretary to provide for the protection and management of these animals.¹ As such, it is “reasonably related to the promotion of the public interest.” Id. at 1430.

The BLM administers the Wild Horses Act as the Secretary's delegate. Because the Wild Horses Act prohibits the harassment of wild horses when it is done “maliciously,” 16 U.S.C. § 1338(a)(3), it is not entirely clear what measures may be taken by landowners to protect their land from wild horses without risk of sanctions. It is clear, however, that Section 4 of the Wild Horses Act, 16 U.S.C. § 1334 (Section 4), entitles landowners to enjoy the use of their property unencumbered by wild horses, and provides them a specific remedy to remove the animals. If wild horses “stray from public lands onto privately owned land, the owners of such land may inform the nearest Federal marshall [sic] or agent of the Secretary, who shall arrange to have the animals removed.” Id. The BLM has interpreted this statutory provision by promulgating regulations, which provide: “Upon written request from the private landowner to any representative of the [BLM], the authorized officer shall remove stray wild horses and burros from private lands as soon as practicable.” 43 CFR § 4720.2–1.

The operation and benefits of Section 4 of the Wild Horses Act has been described as follows:

The removal of the animals is primarily for the benefit of the public in that it keeps wild horses and burros on public lands. As a byproduct, the landowner has the benefit of having the animals removed from his land without cost and by merely reporting to the government that they are on his land. This byproduct also works to the benefit of the public. Because the landowner has an easy and cost-free way to remove the animals, he will not be tempted to shoot or otherwise harm them. Accordingly, less animals will be maimed or killed.

Roaring Springs Associates v. Andrus, 471 F.Supp. 522, 525–26 (D.Ore.1978).

B. Section 4 Litigation

Notwithstanding the Court's observations in Roaring Springs, litigation concerning Section 4 of the Wild Horses Act suggests that nothing is easy or cost-free to landowners when it comes to removing animals. RSGA is the landowner in this case.² RSGA was established in 1907 to assemble the land rights to use the rangeland resources within a portion of the Wyoming Checkerboard, which at that time was owned by the government, the Union Pacific Railroad, and the State of Wyoming. Doc. 1, ¶ 20. The RSGA land follows the railroad right-of-way from Tipton to Bryan, Wyoming, encompassing an area roughly 40 miles wide and 80 miles long and containing slightly more than two million acres. Id.

The “checkerboard” derives its name from the pattern of alternating sections of private and public land which it comprises. The checkerboard scheme of land ownership is a result of the Union Pacific Act passed in 1862. Under that Act, the Union Pacific Railroad Company was awarded the odd-numbered lots of public land along the railbed right-of-way as the company completed each mile of the transcontinental railroad. Today, more than half of the checkerboard remains under federal ownership, while the remainder is held privately.

Mountain States Legal Foundation v. Hodel, 799 F.2d 1423, 1424, fn. 1 (10th Cir.1986).

RSGA uses the Wyoming Checkerboard for grazing cattle and sheep. Wild horses also graze on the Wyoming Checkerboard and, because the Wyoming Checkerboard is not fenced, wild horses move freely throughout the area.³ The Wyoming Checkerboard is generally described as high desert, with limited forage, limited fences, and sensitive to overuse.

The instant controversy began years ago, shortly following enactment of the Wild Horses Act. Relying on Section 4 of the Wild Horses Act, in 1977, RSGA formally requested removal of all of the wild horses from its private lands. A.R. 03316. Unsatisfied with the BLM's response, in 1979 RSGA and the Mountain States Legal Foundation filed suit to compel removal in addition to other relief. A.R. 00858–59.

In 1981, the Court entered an order which found that “the wild horse population has dramatically increased and the excess demand on grazing lands has created severe problems for ranchers in the Rock Springs area and the ecological balance of the range.” A.R. 00870. For purposes of this case, the relevant part of the 1981 Order provides “that the Rock Springs District office of the [BLM] shall within one year from the date of this Order remove all wild horses from the checkerboard grazing lands in the Rock Springs District except that number which the [RSGA] voluntarily agrees to leave in said area.” ⁴Id.

Following the 1981 Order, the BLM began its NEPA process and established herd management areas (HMAs) throughout the Rock Springs District to include a total of 1,525 wild horses (AMLs).⁵ Doc. 1, ¶ 32; A.R. 01899; A.R. 01780; A.R. 01948; A.R. 01848; A.R. 02130. The BLM undertook wild horse gathers to meet this objective. In 1984, RSGA filed a motion to enforce the 1981 Order, and the parties stipulated to an amended order whereby the BLM committed to the removal of all but 1,500 to 1,600 wild horses.⁶ Doc. 1, ¶¶ 34 & 47; A.R. 03350–56 & 03359. The BLM also committed to dedicate about 90% of the Wyoming BLM wild horse program funding for the following three years to achieve and maintain the AMLs. Id.

In 1985, the BLM estimated the wild horse population was nearing the 1,500–1,600 level, and wrote to RSGA to document compliance with the 1981 Order. A.R. 03373 (“Rock Springs District is in compliance with the Court Order of March 31, 1981 and amendments. I now consider our Wild Horse Program to be in management mode instead of a roundup project.”). RSGA neither acquiesced in, nor contested this determination.⁷ Doc. 1, ¶ 36.

In 2003, the State of Wyoming filed suit against the BLM to enforce the terms of the respective land use plans governing public lands in Wyoming. A.R. 01262–86. A Consent Decree was entered whereby the BLM agreed to maintain the AMLs for each HMA, and to inventory and gather from each HMA every three years to the lower level of the AML.⁸ A.R. 01287–95.

The BLM initially instituted the steps required under the consent decree and gathered and removed wild horses from the HMAs that were within or bordered the RSGA lands. Id. at ¶ 45; A.R. 02218. However, in 2009 and 2010, the BLM removed very few wild horses, but planned and executed a large removal in calendar-year 2011, gathering over 3,400 horses. A.R. 02218; A.R. 04082.

Notwithstanding the BLM's efforts, RSGA alleges that the estimated number of wild horses located in the HMAs encompassing the RSGA lands greatly exceed the previously agreed range of 500 horses within the RSGA lands and no more than a total of 1500 to 1600 wild horses within the four Rock Springs...