Case 2:14-cv-00248-NDF Document 32 Filed 02/27/15 Page 1 of 19

Timothy C. Kingston
Law Office of Tim Kingston LLC
408 West 23rd Street, Suite 1
Cheyenne, WY 82001-3519
TEL: (307) 638-8885 / FAX: (307) 637-4850
kingston@rockymtnlaw.com
Caitlin T. Zittkowski (admitted pro hac vice)
William S. Eubanks II (admitted pro hac vice)
Meyer Glitzenstein & Crystal
1601 Connecticut Ave., NW, Suite 700
Washington, DC 20009
TEL: (202) 588-5206 / FAX: (202) 588-5049
czittkowski@meyerglitz.com
beubanks@meyerglitz.com
Attorneys for Respondent Intervenors
American Wild Horse Preservation Campaign,
The Cloud Foundation, Return to Freedom,
Carol Walker, and Kimerlee Curyl
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
STATE OF WYOMING,
Petitioner,

v.
UNITED STATES DEPARTMENT OF
THE INTERIOR, et al.
Respondents.

)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. 2:14-cv-00248

MEMORANDUM IN SUPPORT OF RESPONDENT INTERVENORS

MOTION TO DISMISS

Case 2:14-cv-00248-NDF Document 32 Filed 02/27/15 Page 2 of 19

INTRODUCTION
Frustrated with the federal governments management of wild horses on public lands in
the state of Wyoming, Petitioner the State of Wyoming (hereinafter referred to as Wyoming or
the State) has asked the Court to declare that Federal Respondents (hereinafter collectively
referred to as BLM or the agency) have not fulfilled their responsibilities under the Wild
Free-Roaming Horses and Burros Act (WHA), 16 U.S.C. 1331-1340. Asserting that BLM
has arrived at a final decision not to manage wild horses in Wyoming according to their
mandatory, non-discretionary obligations, Petition for Review (Pet.) at 2, ECF No. 1,
Wyoming seeks a court order directing BLM to take immediate action to remove excess wild
horses from Wyoming public lands and prevent wild horse overpopulations in Wyoming. Id.
5B. Petitioner goes on to state that [e]ven if [BLM] d[oes] not have a non-discretionary duty to
remove these wild horses, BLM should conclude that removal is necessary. Pet. Attach. 1 at
4, ECF No. 1-1.1
Petitioner bases its suit largely on two letters it sent to BLM demand[ing] BLM
immediately remove wild horses from public lands in Wyoming and threatening legal action
unless BLM acts within sixty days, a deadline untethered to any statute or regulation. Pet.
Attach. 1 at 2-3, ECF No. 1-1. These letters highlight several herd management areas (HMAs)
in Wyoming, namely Antelope Hills, Crooks Mountain, Fifteenmile, Green Mountain, Little
Colorado, Lost Creek, and Stewart CreekHMAs which, based only on wild horse population
estimates by BLM, the State asserts contain excess wild horses and that, as a result, BLM has
no choice but to immediately remove wild horses from these public lands. Id. at 1.

Page numbers for citations to Attachments to the Petition for Review correspond with page
numbers assigned by the Courts ECF System.
2

Case 2:14-cv-00248-NDF Document 32 Filed 02/27/15 Page 3 of 19

Despite Wyomings epistolary efforts to impose an agency deadline and create a

cognizable claim under the Administrative Procedure Act (APA), Petitioners claims lack legal
support for several reasons. To begin with, the State cannot identify a final agency action for the
Court to review as required by Supreme Court precedent for claims brought pursuant to the APA.
See Lujan v. Natl Wildlife Fedn, 497 U.S. 871, 882 (1990). In addition, even assuming
arguendo that BLM has a non-discretionary duty to remove wild horses if certain prerequisites
are satisfied, Petitioner has failed to allege that BLM has in fact satisfied the criteria set forth by
the WHA, 16 U.S.C. 1333, that would trigger any such obligation on the part of the agency to
remove wild horses from these public lands. Finally, because BLMs decisions concerning the
management of wild horses on public lands are infused with discretion on the part of the agency,
as explicitly recognized by the Supreme Court in Norton v. Southern Utah Wilderness Alliance,
542 U.S. 55, 66 (2004), the State cannot clear the APAs justiciability hurdle requiring
petitioners to identify a mandatory, non-discretionary agency duty before a court may grant the
requested relief.
In short, Petitioners fail to set forth viable grounds upon which a court could declare
BLM has violated the WHA and the APA, and thereby order BLM to take immediate action to
remove wild horses from the public lands in Wyoming. Consequently, Respondent-Intervenors
the American Wild Horse Preservation Campaign (AWHPC), the Cloud Foundation, Return to
Freedom, Carol Walker, and Kimerlee Curyl (collectively AWHPC) move to dismiss the
Petition for Review pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a
claim upon which relief can be granted.2

Although AWHPC filed a Proposed Answer with its Motion to Intervene in this case, see ECF
No. 6-2, it is AWHPCs position that, in light of the fact that this case is governed by Olenhouse
v. Commodity Credit Corp., 42 F.3d 1560, 1580 (10th Cir. 1994) and Local Rule 83.6(b), the
3

Case 2:14-cv-00248-NDF Document 32 Filed 02/27/15 Page 4 of 19

BACKGROUND
I.

RELEVANT STATUTORY AND REGULATORY FRAMEWORK

A. The Wild Free-Roaming Horses and Burros Act
Congress enacted the WHA in 1971, proclaiming wild free-roaming horses and burros as

a national esthetic resource and living symbols of the rugged independence and tireless
energy of our pioneer heritage. S. Rep. No. 92-242, at 1 (1971). Congress further declared that
wild free-roaming horses and burros contribute to the diversity of life forms within the Nation
and enrich the lives of the American people. 16 U.S.C. 1331. Thus, Congress sought to
guarantee that wild free-roaming horses and burros shall be protected from capture, branding,
harassment, [and] death, and be considered in the area where presently found, as an integral
part of the natural system of the public lands. Id. (emphasis added).
The WHA directs the Secretary of the Department of Interior, through BLM, to protect
and manage wild free-roaming horses and burros as components of the public lands. 16 U.S.C.
1333(a) (emphasis added); 43 C.F.R. 4700.0-2 (instructing BLM to manage wild horses and
burros under the principle of multiple use.). As a result, protection of wild horses and burros
must be considered during the preparation and amendment of Resource Management Plans
(RMPs), which are prepared for public lands pursuant to the Federal Land Policy Management
Proposed Answer has no bearing on the current procedural posture of the case. See Joint Mot. for
Entry of Litigation Plan, 1-2, ECF No. 23 (In accordance with Olenhouse and Local Rule
83.6(b), the parties agree that Federal Respondents need not file an Answer under the Federal
Rules of Civil Procedure . . . .); Local Rule 83.6(b) (The respondent need not file an answer to
the petition or notice of appeal.). However, in the alternative, the Court may construe the
Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6) as a Motion for Judgment on
the Pleadings under Rule 12(c), which provides that [a]fter the pleadings are closedbut early
enough not to delay triala party may move for judgment on the pleadings. See Myers v.
Koopman, 738 F.3d 1190, 1193 (10th Cir. 2013) (explaining the same standard of review applies
to motions to dismiss and motions for judgment on the pleadings) (citation omitted); Mock v.
T.G. & Y. Stores Co., 971 F.2d 522, 528 (10th Cir. 1992) (A motion for judgment on the
pleadings under Fed.R.Civ.P. 12(c) is treated as a motion to dismiss under Fed.R.Civ.P.
12(b)(6).) (citation omitted).
4

Case 2:14-cv-00248-NDF Document 32 Filed 02/27/15 Page 5 of 19

Act (FLPMA). See 43 U.S.C. 1712(a) (requiring the preparation of land use plans for public
lands); see also BLM, Manual 4710 - Management Considerations, Rel. 4-112, at 4 (June 7,
2010) (BLM Manual 4710) (requiring that wild horses be considered in preparation of RMPs).3
The WHA further provides that the Secretary shall manage wild free-roaming horses
and burros in a manner that is designed to achieve and maintain a thriving natural ecological
balance on the public lands. 16 U.S.C. 1333(a). To achieve this directive, the WHA provides
that the Secretary shall maintain a current inventory of wild free-roaming horses and burros on
given areas of public lands, id. 1333(b)(1), which BLM does for individual HMAs. 43 C.F.R.
4710.2, 4710.3-1; see BLM Manual 4710 at 9-10 (outlining procedures for conducting
population inventories).
Under WHA regulations, an HMA is established for the maintenance of wild horse and
burro herds, 43 C.F.R. 4710.3-1, based on the geographic areas that were used by these
animals in 1971 when the WHA was enacted. 43 C.F.R. 4700.0-5(d). HMAs are designated
and modified in RMPs through BLMs land use planning process. 43 C.F.R. 4710.1; BLM,
Wild Horses and Burros Management Handbook H-4700-1, Rel. 4-116, at 7-8 (June 2010)
(BLM Handbook).4
BLM sets an appropriate management level (AML) for each HMA through a planning
process that requires public notice and comment, as well as compliance with the National
Environmental Policy Act (NEPA), 42 U.S.C. 4321-4370hthe statute that requires all
agencies to examine the environmental impacts of their decisions, to avoid adverse

Available at http://www.blm.gov/pgdata/etc/medialib/blm/wo/Information_Resources
_Management/policy/ blm_manual.Par.66361.File.dat/MS-4710.pdf.
4

Available at http://www.blm.gov/pgdata/etc/medialib/blm/wo/Information_Resources
_Management/policy/ blm_handbook.Par.11148.File.dat/H-4700-1.pdf.
5

Case 2:14-cv-00248-NDF Document 32 Filed 02/27/15 Page 6 of 19

environmental impacts when possible, and to [r]igorously explore alternative actions that
would have less adverse impacts, 40 C.F.R. 1502.14(a). BLM Handbook at 18. These AMLs
are determined through revisions to the applicable [RMP]. In Def. of Animals v. U.S. Dept of
Interior, 909 F. Supp. 2d 1178, 1192 (E.D. Cal. 2012), affd, 751 F.3d 1054 (9th Cir. 2014).
Because the WHA requires that [a]ll management activities shall be at the minimal
feasible level, 16 U.S.C. 1333(a), AMLs are expressed as a population range within which
[wild horses and burros] can be managed for the long term in a given HMA without resulting in
rangeland damage. BLM Handbook at 16-17. The local BLM offices have significant
discretion to determine their own methods of computing AML[s] for the herds they manage.
Fund for Animals, Inc. v. U.S. Bureau of Land Mgmt., 460 F.3d 13, 16 (D.C. Cir. 2006).
The WHA allows BLM to manage wild horses and burros by removing excess animals
from the public lands, but only after BLM determines that: (1) an overpopulation [of wild
horses] exists on a given area of the public lands and (2) action is necessary to remove excess
animals. 16 U.S.C. 1333(b)(2); see also Colo. Wild Horse and Burro Coal., Inc. v. Salazar,
639 F. Supp. 2d 87, 98 (D.D.C. 2009) (A prerequisite to removal under the [WHA] is that BLM
first make an excess determination.). The term excess animals refers to those wild freeroaming horses or burros that 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) (emphasis added).
In addition to removing excess wild horses and burros from public lands, BLM has
discretion to close appropriate areas of the public lands to grazing use by all or a particular kind
of livestock if necessary to provide habitat for wild horses or burros. 43 C.F.R. 4710.5(a).
BLM may close public lands to grazing permanently or temporarily [a]fter appropriate public

Case 2:14-cv-00248-NDF Document 32 Filed 02/27/15 Page 7 of 19

consultation, id. 4710.5(c), which entails a site-specific environmental analysis and issuance
of a proposed and final decision. BLM Handbook at 9. Once that process has been completed,
BLM must then issue a formal Notice of Closure to the affected and interested parties. 43
C.F.R. 4710.5(c).
B. The Taylor Grazing Act
Under the Taylor Grazing Act (TGA), 43 U.S.C. 315-315r, the Secretary of the
Interior, through BLM, is authorized to issue permits for the grazing of livestock on public
lands upon the payment . . . of reasonable fees. 43 U.S.C. 315b. However, the statute makes
clear that the creation of a grazing district or the issuance of a [grazing] permit . . . shall not
create any right, title, interest, or estate in or to these public lands. Id. 315b (emphasis
added); see also United States v. Fuller, 409 U.S. 488, 494 (1973) (The provisions of the
[TGA]. . . make clear the congressional intent that no compensable property might be created in
the permit lands themselves as a result of the issuance of the permit.) (emphasis added). The
TGA further provides that the Secretary is authorized, in his discretion, to . . . classify any lands
. . . within a grazing district as more valuable or suitable for any other use, 43 U.S.C. 315f
(emphasis added), including use by wild horses that are required to be protected under the WHA.
16 U.S.C. 1333(a); see also 43 C.F.R. 4710.5(a) (BLM may prohibit grazing on the public
lands where necessary to protect wild horses).
II.

RELEVANT FACTS
According to BLM estimates, there are over 3,000 wild horses and burros currently living

in Wyoming on sixteen different HMAs, which range in size from just under 25,000 acres to
over 478,000 acres. See Pet. Attach. 1 at 66, ECF No. 1-1. Ranchers use these same public
lands to graze livestock pursuant to permits issued under the Taylor Grazing Act, see 43 U.S.C.

Case 2:14-cv-00248-NDF Document 32 Filed 02/27/15 Page 8 of 19

315, at below-market, taxpayer-subsidized rates.5 In fact, BLM has issued over 3,530 grazing
permits in Wyoming, providing for approximately 17.6 million acres in grazing allotments,6
while HMAs for wild horses account for 4.8 million acres.7 Although such grazing permits do
not confer any entitlement to these public lands, see 43 U.S.C. 315b, the State and the ranchers
nevertheless view wild horses and burros as competition for the limited resources on the range,
see Pet. Attach. 1 at 6, ECF No. 1-1 (stating [t]he State leases these lands [within the HMAs at
issue] to livestock operators and complaining that excess wild horses consume forage, which
in turn decreases the value of these lands for leasing to livestock producers).

According to a recent study by the Congressional Research Service, BLM charged $1.35 per
animal unit month (AUM)a months use and occupancy of the range by one animal
through February 2013, which is the lowest fee that can be charged and is significantly less
than market value, Carol Hardy Vincent, Cong. Research Serv., RS21232, Grazing Fees:
Overview And Issues at 1 (2012), available at https://www.fas.org/sgp/crs/misc/RS21232.pdf,
though BLM recently decided to increase the grazing fee slightly to $1.69 per AUM, Bureau of
Land Mgmt., BLM and Forest Service Announce 2015 Grazing Fee, BLM.gov (Jan. 30, 2015),
http://www.blm.gov/wo/st/en/info/newsroom/2015/january/nr_01_30_2015.html. The
Congressional Research Service Report also explains that BLM typically spend[s] far more
managing their grazing programs than they collect in grazing fees, with one study estimating
that the federal cost of an array of BLM and other agency programs that benefit grazing or
compensate for the impacts of grazing is roughly $500 million annually in taxpayer dollars.
Grazing Fees: Overview And Issues at 2; see also Tal v. Hogan, 453 F.3d 1244, 1264 n.24 (10th
Cir. 2006) (explaining the Court may consider facts subject to judicial notice . . . without
converting the motion . . . into a motion for summary judgment); Clappier v. Flynn, 605 F.2d
519, 535 (10th Cir. 1979) (courts may properly take notice of official government publications).
6

U.S. Dept of the Interior, Bureau of Land Mgmt., Fiscal Year 2011: Rangeland Inventory,
Monitoring, and Evaluation Report, Table 6 (2011), available at http://www.blm.gov/pgdata
/etc/medialib/blm/wo/Planning_and_Renewable_Resources/rangelanr.Par.49582.File.dat/Rangel
Ran2011.pdf; see also O'Toole v. Northrop Grumman Corp., 499 F.3d 1218, 1225 (10th Cir.
2007) (It is not uncommon for courts to take judicial notice of factual information found on the
world wide web.).
U.S. Dept of the Interior, Bureau of Land Mgmt., Herd Area and Herd Management Area
Statistics as of March 1, 2014 1 (2014), available at http://www.blm.gov/style/medialib/blm/wo/
Planning_and_Renewable_Resources/wild_horses_and_burros/statistics_and_maps/holding__ad
option.Par.19711.File.dat/HMAs%20and%20HAs%20March%202014.pdf.
7

Case 2:14-cv-00248-NDF Document 32 Filed 02/27/15 Page 9 of 19

According to the State, on August 21, 2014, Petitioner sent a letter to BLM
demand[ing] that BLM comply with its non-discretionary duties to remove excess wild
horses from the public lands identified and threatening the legal action currently underway for
failure to comply with non-discretionary duties in the Wild Horse Act unless the violations
identified in this letter are remedied within 60 days. Pet. Attach. 1 at 2-3, ECF No. 1-1.
Petitioner stated that it leases the[] lands [at issue] to livestock operators and complained that
[t]he State cannot tolerate wild horse populations because they decrease[] the value of these
lands for leasing to livestock producers. Pet. Attach. 1 at 6, ECF No. 1-1. Notably, attached to
its letter to BLM, Wyoming included a chart issued by BLM indicating that five of the seven
HMAs were within their respective AML ranges as recently as 2013, with the remaining two
HMAs within the AML population range in 2012. Pet. Attach. 1 at 66, ECF No. 1-1. Wyoming
followed up its initial letter with a second letter to the agency on October 28, 2014, relaying
Wyomings interpretation of BLMs lack of response after the States imposed sixty-day
deadline to be a final decision not to act and intent to file the present action. Pet. Attach. 2,
ECF No. 1-2.
BLM responded to Wyoming in a letter dated November 5, 2014, indicating that the
agency had in fact removed over 1,200 wild horses from the southwestern area of the state in
October 2014. Pet. Attach. 3, ECF No. 1-3. BLM went on to explain that wild horse [g]ather
plans for fiscal year 2015 are currently being developed, assured Wyoming that BLM will
utilize [its] resources and capabilities to the maximum extent possible in managing these public
lands, and requested the States continued collaboration in developing a fiscally and
ecologically sustainable program. Id. (emphasis added).

Case 2:14-cv-00248-NDF Document 32 Filed 02/27/15 Page 10 of 19

On December 8, 2014, Wyoming filed a Petition for Review of Final Agency Inaction
seeking to compel BLM to remove wild horses from public lands in Wyoming. See Pet. 5A-D,
ECF No. 1. Specifically, Wyoming seeks to have the Court (1) declare BLM has violated the
WHA for failing to adequately manage[] overpopulations of wild horses on public lands in the
state; (2) order BLM to immediate[ly] remove excess wild horses from public lands in
Wyoming and prevent wild horse overpopulations in the state, and; (3) require BLMs
continued compliance with the WHA. See id. On January 5, 2015 this Court granted
AWHPCs motion to intervene in this case as a matter of right. See ECF No. 17.
ARGUMENT
To withstand a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a
complaint must contain enough allegations of fact, taken as true, to state a claim to relief that is
plausible on its face. Khalik v. United Air Lines, 671 F.3d 1188, 1190-91 (10th Cir. 2012)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). [O]nly a complaint that states a
plausible claim for relief survives a motion to dismiss. Id. (quoting Ashcroft v. Iqbal, 556 U.S.
662, 679 (2009)). Accordingly, a petition for review that sets forth mere labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not suffice.
Burnett v. Mortg. Elec. Registration Sys., Inc., 706 F.3d 1231, 1235 (10th Cir. 2013) (citations
omitted). As explained below, Petitioner fails to state a claim for relief under the APA that is
plausible on its face, and, as a result, the Court should dismiss Petitioners claims.
I.

PETITIONER FAILS TO IDENTIFY A COGNIZABLE FINAL AGENCY

ACTION
Despite Petitioners insistence that BLM has made a specific decision not to act, and that

such decision is final for purposes of judicial review, Pet. 1, ECF No. 1, Petitioners fail to
point to any justiciable final agency action. Wyomings attempt to transmute BLMs lack of
10

Case 2:14-cv-00248-NDF Document 32 Filed 02/27/15 Page 11 of 19

instantaneous action at the States behest into final agency action by pulling a sixty-day
deadline out of a hat and foisting it upon the agency in its August 2014 letter, Pet. Attach. 1, ECF
No. 1-1, does not produce a final agency decision as required for review under the APA.
Although the WHA does not provide a private right of action, see 16 U.S.C. 13311340, Fund for Animals, Inc. v. U.S. Bureau of Land Mgmt., 460 F.3d 13, 18 (D.C. Cir. 2006),
the APA supplies criteria for agency action or inaction subject to judicial review. See 5 U.S.C.
702, 704. The APA entitles a person suffering legal wrong because of agency action, or
adversely affected or aggrieved by agency action to judicial review. Id. 702. However, the
person claiming a right to sue must identify some agency action that affects him, and that
agency action must be final. Lujan v. Natl Wildlife Fedn, 497 U.S. 871, 882 (1990); accord
Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 61-62 (2004). For agency action to be
final, it must mark the consummation of the agencys decisionmaking process and must be a
decision that determines rights or obligations . . . or from which legal consequences will flow.
Ctr. for Native Ecosys. v. Gables, 509 F.3d 1310, 1329 (10th Cir. 2007) (quoting Bennett v.
Spear, 520 U.S. 154, 177-78 (1997)).
Wyoming lacks any support for its assertion that BLM has arrived at any final decision
not to manage the wild horses on public lands in Wyoming. To the contrary, in BLMs
November 2014 letter in response to Petitioner, BLM assured Petitioner that the agency is
currently developing wild horse gather plans for the 2015 fiscal year and that the agency will
carefully consider the actions needed in Wyoming as it plans management activities for 2015.
Pet. Attach. 3, ECF No. 1-3 (emphases added). Furthermore, in its letter, BLM explained that it
had in fact removed over one thousand horses from the southwestern portion of the state in
October 2014. Id. Far from evincing a decision not to act, the agencys letter elucidates BLMs

11

Case 2:14-cv-00248-NDF Document 32 Filed 02/27/15 Page 12 of 19

specific wild horse management actions in Wyoming in the recent past and planning efforts for
additional management steps in the near future consistent with the WHA.
Accordingly, BLMs alleged final decision not to act does not even remotely satisfy
the criteria for final agency action subject to judicial review. Pet. 1, ECF No. 1. Far from
constituting final agency inaction, as Petitioner has described it, BLMs letter indicates that,
rather than arriving at the conclusion of any management decisions concerning the public lands
in Wyoming, BLM is still in the midst of making its wild horse management decisions. See
Lujan, 497 U.S. at 890-91 (rejecting Petitioners characterization of continuing . . . operations
of the BLM, including developing land use plans as required by FLPMA, as final agency
action reviewable under the APA); Ctr. for Native Ecosys., 509 F.3d at 1329. BLMs letter
detailing its ongoing plans for 2015 and request[ing] [Wyomings] continued assistance in
collaborating with the BLM can hardly be said to represent[] the consummation of the
administrative process. Mobil Exploration & Producing U.S. v. Dept of Interior, 180 F.3d
1192, 1197-98 (10th Cir. 1999) (finding letter from agency asking for petitioners continued
cooperation in decision-making process and relaying agencys intent to take additional action
was not final agency action).
Furthermore, as explained in greater detail infra, Petitioners have failed to show that the
agency has come to any decision from which legal consequences will flow or that determines
any rights or obligations, as Petitioners do not sufficiently allege BLM has fulfilled the
elements necessary to trigger any duty on the part of the agency to remove wild horses from the
public lands at issue under Section 3 of the WHA, 16 U.S.C. 1333. See Ctr. for Native Ecosys.,
509 F.3d at 1329 (quoting Bennett, 520 U.S. at 177-78). Because Petitioner has failed to set forth

12

Case 2:14-cv-00248-NDF Document 32 Filed 02/27/15 Page 13 of 19

a final agency action as required for review under the APA, the Court should dismiss the Petition
for Review for failing to state a claim upon which relief may be granted.
II.

PETITIONER HAS NOT ALLEGED THE ELEMENTS NECESSARY TO

TRIGGER ANY DUTY BY BLM TO REMOVE WILD HORSES UNDER THE
WILD HORSE ACT
Though Petitioner contends BLM is neglecting its mandatory, non-discretionary duties

to manage wild horses in Wyoming according to the [WHA], Pet. 1, ECF No. 1, Petitioners
have failed to allege the elements that would trigger such management responsibilities on the
part of the agency under Section 3 of the WHA. Under the WHA, 16 U.S.C. 1333(b)(2), BLM
has no obligation to remove wild horses from public land unless and until it makes these
statutorily required determinations. See Colo. Wild Horse and Burro Coal., 639 F. Supp. 2d at 98
(A prerequisite to removal under the [WHA] is that BLM first determine that an overpopulation
exists and that the wild free-roaming horses and burros slated for removal are excess
animals.). In accordance with the WHA, determinations as to whether and where an
overpopulation exists and whether action should be taken to remove excess animals are based
upon a variety of factors, including
(i) the current inventory of lands within [its] jurisdiction; (ii) information
contained in any land use planning completed pursuant to [43 U.S.C. 1712]; (iii)
information contained in court ordered environmental impact statements [under
43 U.S.C. 1902]; and such additional information as becomes available . . .
including that information developed in the research study mandated by this
section, or in the absence of the information contained in (iiv) above on the basis
of all information currently available to [the agency].
16 U.S.C. 1333(b)(1)-(2) (emphasis added). Only after determining, on the basis of all of these
factors, that an overpopulation [of wild horses] exists on a given area of the public lands and
that action is necessary to remove excess animals may BLM then remove excess animals from

13

Case 2:14-cv-00248-NDF Document 32 Filed 02/27/15 Page 14 of 19

the range so as to achieve appropriate management levels. Id. 1333(b)(2)(iv) (emphasis

added).
Because BLMs removal authority is limited to those wild free-roaming horses and
burros that it determines to be excess animals within the meaning of the [WHA], Colo. Wild
Horse and Burro Coal., 639 F. Supp. 2d at 96, and Petitioners point to nothing in their initial
pleadings indicating that specific BLM determinations triggering any duty to remove wild horses
have been made, Petitioners have failed to allege that BLM has shirked any mandatory duty
concerning its management of wild horses on public lands in Wyoming. Therefore, the Court has
no basis for ordering BLM to comply with Wyomings demands that BLM take immediate
action to remove excess wild horses from Wyoming public lands and prevent wild horse
overpopulations in Wyoming, Pet. 5B, ECF No. 1. Consequently, the Court should dismiss
Petitioners claim.
III.

PETITIONER HAS NOT SHOWN BLM HAS A MANDATORY, NONDISCRETIONARY DUTY, AND THEREFORE THE COURT LACKS A
BASIS FOR GRANTING RELIEF UNDER THE APA
Although Petitioner puzzlingly titles its Petition as one for review of final agency

inaction, making it difficult to discern which provision in APA 706 Petitioner seeks to invoke,
neither 706(1) nor 706(2) provides a basis for granting Petitioners requested relief. Section
706(2) of the APA authorizes courts to hold unlawful and set aside agency action . . . found to
be . . . arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law . . . .
(emphasis added). Petitioners requested reliefa court order requiring BLM take immediate
action to remove excess wild horses from Wyoming public lands and prevent wild horse
overpopulations in the state of Wyoming, Pet. 5 B, ECF No. 1does not entail setting aside
any agency action, and therefore is not the type of relief a court would provide under 706(2).

14

Case 2:14-cv-00248-NDF Document 32 Filed 02/27/15 Page 15 of 19

See, e.g., Greater Yellowstone Coal. v. Tidwell, 572 F.3d 1115, 1120 (10th Cir. 2009)
(explaining a court will set aside an agency decision [if] it is arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law) (emphasis added) (citing 5 U.S.C.
706(2)(A); Utah Envtl. Cong. v. Russell, 518 F.3d 817, 823 (10th Cir. 2008)).
However, despite Petitioners fleeting citation to 706(1), see Pet. 1, Petitioner has
failed to sufficiently allege any warranted relief under this provision of the APA as well. Because
claims concerning agency action unlawfully withheld or unreasonably delayed within the
meaning of the APA, 5 U.S.C. 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, Petitioners claims must
be dismissed. Norton, 542 U.S. at 63-64 & n.1; Biodiversity Conservation Alliance v. Jiron, 762
F.3d 1036, 1078 n.53 (10th Cir. 2014) ([C]hallenges [under 706(1)] are appropriate . . . only
when the plaintiff shows an agency failed to take a discrete agency action that it is required to
take.) (citation and quotation marks omitted).
In Norton, which sets out the standard for judicial review of claims under APA 706(1),
the Supreme Court explained that [t]he principal purpose of the[se] APA [judicial review]
limitations . . . is 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. Norton, 542 U.S. at 66. Moreover, as an example of a
broad statutory mandate for which mandamus would not be appropriate, the Court pointed to
the WHAs directive to BLM to manage wild free-roaming horses and burros in a manner that
is designed to achieve and maintain a thriving ecological balance on the public lands, 16
U.S.C. 1333. Norton, 542 U.S. at 67 (emphasis added). Indeed, as the U.S. Court of Appeals
for the D.C. Circuit explained in relying on Norton when dismissing a case analogous to this one,

15

Case 2:14-cv-00248-NDF Document 32 Filed 02/27/15 Page 16 of 19

[i]n a portion of the opinion that almost seems to anticipate this case, the [Supreme] Court
hypothesized a plaintiff who alleged that the Secretary had failed to manage wild free-roaming
horses and burros in a manner that is designed to achieve and maintain a thriving natural
ecological balance and noted that such a case is not contemplated by the APA. Fund for
Animals, Inc. v. U.S. Bureau of Land Mgmt., 460 F.3d 13, 21 (D.C. Cir. 2006) (emphasis added)
(citations and quotation marks omitted).
More specifically, encompassed within the WHAs broad statutory mandate concerning
how BLM manages wild horses on public lands, 16 U.S.C. 1333(b) confers discretion upon the
agency to determine whether and where excess wild horses exist, as well as whether
appropriate management levels should be achieved by the removal of wild horses it has
determined are excess, or other options (such as sterilization, or natural controls on
population levels). Id. (emphasis added); see also Am. Horse Prot. Assn v. Frizzell, 403 F.
Supp. 1206, 1217 (D. Nev. 1975) (noting that BLM has discretion in determining whether an
area is overpopulated and whether to reduce the population by removing excess wild horses);
Am. Horse Protection Assn, Inc. v. Watt, 694 F.2d 1310, 1318 (D.C. Cir. 1982) (explaining that
an excess determination can be made on the basis of whatever information [the agency] has at
the time of [its] decision). In fact, rather than removing wild horses, BLM may instead opt to
close appropriate areas of the public lands to grazing use by all or a particular kind of livestock
in order to provide habitat for wild horses or burros. 43 C.F.R. 4710.5(a).
In light of the Supreme Courts recognition of the WHAs broad statutory mandate
concerning how BLM manages wild horses on public lands, including whether and when to
remove them, and the myriad options BLM has to determine how best to achieve and maintain a
thriving natural ecological balance on the public lands, 16 U.S.C. 1333(a), Petitioner has not

16

Case 2:14-cv-00248-NDF Document 32 Filed 02/27/15 Page 17 of 19

shown that BLM has neglected to take any discrete action demanded by law. Norton, 542 U.S.
at 65. Because Petitioner has failed to allege a discrete agency action that BLM is required to
take concerning the removal of excess horses from public lands, these claims must be dismissed.
Khalik, 671 F.3d at 1190-91; Kane Cnty. Utah v. Salazar, 562 F.3d 1077, 1086 (10th Cir. 2009)
(explaining that in Norton, the Supreme Court held that 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) (emphasis added).
CONCLUSION
For all of the foregoing reasons, the Court should dismiss Petitioners Petition for Review
pursuant to Federal Rule of Civil Procedure 12(b)(6).

Respectfully Submitted,
/s/____________________________
Caitlin T. Zittkowski (admitted pro hac vice)
(California Bar No. 290108)
William S. Eubanks II (admitted pro hac vice)
(D.C. Bar No. 987036)
MEYER GLITZENSTEIN & CRYSTAL
1601 Connecticut Ave., N.W. Suite 700
Washington, D.C. 20009
(202) 588-5206
_/s/___________________________
Timothy C. Kingston
(WY Bar No. 6-2720)
LAW OFFICE OF TIM KINGSTON LLC
408 West 23rd Street, Suite 1
Cheyenne, WY 82001-3519
(307) 638-8885

17

Case 2:14-cv-00248-NDF Document 32 Filed 02/27/15 Page 18 of 19

Counsel for Respondent Intervenors American Wild

Horse Preservation Campaign, The Cloud
Foundation, Return to Freedom, Carol Walker, and
Kimerlee Curyl

18

Case 2:14-cv-00248-NDF Document 32 Filed 02/27/15 Page 19 of 19

CERTIFICATE OF SERVICE
I hereby certify that on February 27, 2015, a copy of the Memorandum in Support of
Respondent Intervenors Motion to Dismiss was filed using the Courts CM/ECF system, which
will then send a notice of electronic filing to counsel of record.
/s/____________________________
Caitlin T. Zittkowski (admitted pro hac vice)
(California Bar No. 290108)
MEYER GLITZENSTEIN & CRYSTAL
1601 Connecticut Ave., N.W. Suite 700
Washington, D.C. 20009
(202) 588-5206
Counsel for Respondent Intervenors
American Wild Horse Preservation Campaign,
The Cloud Foundation, Return to Freedom, Carol
Walker, and Kimerlee Curyl

19