W. Rangeland Conservation Ass'n v. Zinke

• Decision Date: 11 July 2017
• Docket Number: Case No. 2:14-cv-00327-JNP
• Citation: 265 F.Supp.3d 1267
• Parties: WESTERN RANGELAND CONSERVATION ASSOCIATION, 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, Plaintiffs, v. 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, Defendants, and American Wild Horse Preservation Campaign, The Cloud Foundation, Return to Freedom, John Steele, and Lisa Friday, Defendant-Intervenors.
• Court: U.S. District Court — District of Utah

265 F.Supp.3d 1267

WESTERN RANGELAND CONSERVATION ASSOCIATION, 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, Plaintiffs,

v. 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, Defendants,andAmerican Wild Horse Preservation Campaign, The Cloud Foundation, Return to Freedom, John Steele, and Lisa Friday, Defendant-Intervenors.

Case No. 2:14-cv-00327-JNP

United States District Court, D. Utah.

Signed July 11, 2017

Andrea Buzzard, Karen Budd-Falen, Budd-Falen Law Offices LLC, Cheyenne, WY, Thomas W. Bachtell, MacDonald & Miller Mineral Legal Services, Midvale, UT, for Plaintiffs.

Jared C. Bennett, US Attorney's Office, Joel M. Ban, Ban Law Offices, Salt Lake City, UT, Rickey Doyle Turner, Jr., US Dept. of Justice, Denver, CO, Andrea Buzzard, Budd-Falen Law Offices LLC, Cheyenne, WY, Katherine A. Meyer, William N. Lawton, Meyer Glitzenstein & Eubanks LLP, Michelle D. Sinnott, Meyer Glitzenstein & Crystal, Washington, DC, for Defendants/Defendant-Intervenors.

MEMORANDUM DECISION AND ORDER DENYING PLAINTIFFS' REQUEST FOR MANDATORY INJUNCTIVE RELIEF UNDER THE ADMINISTRATIVE PROCEDURE ACT AND DISMISSING THE ACTION

Jill N. Parrish, United States District Court Judge

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

INTRODUCTION

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 Management³ (collectively, "Federal Defendants" or "BLM"). On August 27, 2014, the court 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

I. 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.

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 1316 (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 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...