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Case 2:14-cv-00152-NDF Document 74 Filed 02/03/15 Page 1 of 38

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
Case No. 14-cv-152-NDF
AMERICAN WILD HORSE PRESERVATION CAMPAIGN, et al.,
Petitioners,
v.
SALLY JEWELL, et al.,
Respondents,
and
ROCK SPRINGS GRAZING ASSOCIATION,
Respondent-Intervenor,
and
STATE OF WYOMING,
Respondent-Intervenor.
PETITIONERS’ REPLY BRIEF
Timothy Kingston
LAW OFFICE OF TIM KINGSTON, LLC
408 West 23rd Street, Ste. 1
Cheyenne, WY 82001
TEL: (307) 638-8885
FAX: (307) 637-4850
kingston@rockymtnlaw.com

William S. Eubanks II
Caitlin T. Zittkowski
MEYER GLITZENSTEIN & CRYSTAL
1601 Connecticut Ave. NW, Ste. 700
Washington DC, 20009
TEL: (202) 588-5206
FAX: (202) 588-5049
beubanks@meyerglitz.com
czittkowski@meyerglitz.com
Counsel for Petitioners

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TABLE OF CONTENTS
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
GLOSSARY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
I.

II.

PETITIONERS’ CLAIMS ARE NOT MOOT.. . . . . . . . . . . . . . . . . . . . . . . 2
A.

This Case Is Not Moot Because Meaningful Relief Remains
Available To Remedy Petitioners’ Ongoing Injuries Caused
By The 2014 Roundup... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

B.

This Case Is Also Justiciable Because The Court Could Order
BLM To Remedy Its Alleged NEPA Violations.. . . . . . . . . . . . . . . . . 9

C.

Even If Relief Were Not Available, This Case Is Not Moot... . . . . . 11

RESPONDENTS CANNOT ESCAPE THE CLEAR APPLICATION
OF CHEVRON TO THE PLAIN LANGUAGE OF THE WHA... . . . . . . . 14
A.

Petitioners Seek To Harmonize Sections 3 And 4 Of The WHA,
Rather Than Ignore Either Statutory Obligation (As BLM Has).. . . 15

B.

Respondents’ WHA Construction Fails Under Chevron.. . . . . . . . . 18

III.

BLM’S DE FACTO AML REDUCTION FLOUTS VARIOUS
LAWS... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

IV.

BLM'S CATEGORICAL EXCLUSION VIOLATES NEPA.. . . . . . . . . . . 26

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

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TABLE OF AUTHORITIES
CASES

PAGE

Airport Neighbors Alliance v. United States,
90 F.3d 426 (10th Cir. 1996) ............................................................................9, 11
Alaska Prof. Hunters v. FAA,
177 F.3d 1030 (D.C. Cir. 1999)............................................................................23
Am. Petr. Inst.v. EPA,
52 F.3d 1113 (D.C. Cir. 1995)..............................................................................22
Buchheit v. Green,
705 F.3d 1157 (10th Cir. 2012) ............................................................................13
Burbank Anti-Noise Group v. Goldschmidt,
623 F.2d 115 (9th Cir. 1980) ..................................................................................9
California v. USDA,
575 F.3d 999 (9th Cir. 2009) ................................................................................27
Citizens for Better Forestry v. USDA,
481 F. Supp. 2d 1059 (N.D. Cal. 2007)................................................................28
Coal Co. v. Fed. Mine Safety & Health Rev. Comm's,
642 F.3d 234 (D.C. Cir. 2011)..............................................................................25
C.W. Mining Co.,
641 F.3d 1235 (10th Cir. 2011) ..............................................................................4
Day v. Bond,
500 F.3d 1127 (10th Cir. 2007) ..............................................................................4
Envtl. Def. Fund v. Marsh,
651 F.2d 983 (1981) .............................................................................................30
Ethyl Corp. v. EPA,
51 F.3d 1053 (D.C. Cir. 1995)..............................................................................22
ii

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Fowler v. United States,
647 F.3d 1232 (10th Cir. 2011) ..............................................................................3
Garvey v. Freeman,
397 F.2d 600 (10th Cir. 1968) ..............................................................................21
Grand Canyon Trust v. FAA,
290 F.3d 339 (D.C. Cir. 2002)..............................................................................29
Green v. Haskell Cnty. Bd. of Comm'rs,
568 F.3d 784 (10th Cir. 2009) ..............................................................................12
Halverson v. Slater,
129 F.3d 180 (D.C. Cir. 1997)..............................................................................23
Herriman v. Bell,
590 F.3d 1176 (10th Cir. 2010) ..................................................................... 13, 14
High Sierra Hikers Ass'n v. Blackwell,
390 F.3d 630 (9th Cir. 2004) ................................................................................28
In Defense of Animals v. Salazar,
808 F. Supp. 2d 1254 (E.D. Cal. 2011) ..................................................................8
In Defense of Animals v. Salazar,
648 F.3d 1012 (9th Cir. 2011) ................................................................................8
Kardules v. City of Columbus,
95 F.3d 1335 (6th Cir. 1996) ..................................................................................5
Morton v. Mancari,
417 U.S. 535 (1974) .............................................................................................24
Nat'l Parks Conservation Ass'n v. FAA,
998 F.2d 1523 (10th Cir. 1993) ............................................................................11
Rezaq v. Nalley,
677 F.3d 1001 (10th Cir. 2012) ..............................................................................3
iii

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Sparrow v. IRS,
949 F.2d 434 (D.C. Cir. 1991)..............................................................................24
United States v. Price,
361 U.S. 304 (1960) .............................................................................................24
Utah Envtl. Cong. v. Russell,
518 F.3d 817 (10th Cir. 2008) ................................................................... 9, 10, 27
Watt v. Alaska,
451 U.S. 259 (1981) .............................................................................................24
West v. DOT,
206 F.3d 920 (9th Cir. 2000) ................................................................................28
Wilderness Watch v. Mainella,
375 F.3d 1085 (11th Cir. 2004) ............................................................................27

STATUTES
5 U.S.C. § 706 ................................................................................................... 13, 21
16 U.S.C. §§ 1331-1340 .................................................................................. passim
42 U.S.C. §§ 4321-4370h ..........................................................................................1
43 U.S.C. §§ 1701-1787 ............................................................................................1

REGULATIONS
40 C.F.R. § 1508.8 ...................................................................................................30
43 C.F.R. § 4720.2-1 ......................................................................................... 18, 23

iv

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GLOSSARY
AML

Appropriate Management Level

APA

Administrative Procedure Act

AR

Administrative Record

AWHPC

American Wild Horse Preservation Campaign

BLM

Bureau of Land Management

CE

Categorical Exclusion

DR

Decision Record

EA

Environmental Assessment

EIS

Environmental Impact Statement

FLPMA

Federal Land Policy Management Act

FONSI

Finding of No Significant Impact

HMA

Herd Management Area

NEPA

National Environmental Policy Act

RMP

Resource Management Plan

RSGA

Rock Springs Grazing Association

UIA

Unlawful Inclosures Act

WHA

Wild Free-Roaming Horses and Burros Act

v

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INTRODUCTION
In their opening brief, Petitioners explained the myriad ways in which the
Bureau of Land Management (“BLM”) has violated—and continues to violate—the
Wild Free-Roaming Horses and Burros Act (“Wild Horse Act” or “WHA”), 16
U.S.C. §§ 1331-1340, by adopting a countertextual statutory interpretation whereby
BLM is authorized to permanently remove federally protected wild horses from
public land pursuant to Section 4 of the Act, despite the fact that Congress plainly
limited BLM’s authority under that provision to removing horses from “privately
owned land.” Id. § 1334 (emphasis added). In the process, BLM has also willfully
disregarded the specific legislative dictates that do apply to these public lands—i.e.,
the mandatory obligations Congress imposed on BLM in Section 3 of the Act that
serve as legal prerequisites before any wild horses may be removed from public
land. Id. § 1333(b)(2). Petitioners also explained how BLM’s actions violated the
National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321-4370h, the
Federal Land Policy and Management Act (“FLPMA”), 43 U.S.C. §§ 1701-1787,
and BLM’s own Resource Management Plans (“RMPs”).
In response, rather than seriously grappling with those issues, BLM has
primarily relied on a jurisdictional defense, which cannot be sustained on these
facts under Supreme Court or Circuit precedent. On the merits, Respondents have,
for the first time, asserted that the WHA is ambiguous—which is nothing more than
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a transparent attempt to manufacture ambiguity to escape the clarion terms of the
Act in order to serve the agency’s own administrative convenience objectives. But,
as previously explained, policy considerations have no place in the Chevron
framework, as courts are bound to enforce Congress’ clear statutory intent.
Accordingly, until BLM seeks and obtains relief from Congress through
legislative amendment, this Court has no choice but to enforce the plain terms of
the WHA, which simply does not authorize removal of wild horses from public
lands under Section 4. See Friends of the Earth v. EPA, 446 F.3d 140, 142 (D.C.
Cir. 2006) (stating that if an agency believes that statutory compliance would lead
to “undesirable consequences,” “then it must . . . take its concerns to Congress”).
I.

PETITIONERS’ CLAIMS ARE NOT MOOT.
Petitioners have explained that this case is justiciable because Petitioners

have established standing and this matter presents a live controversy. See ECF No.
67 at 23. Although not joined by the State of Wyoming or the Rock Springs
Grazing Association (“RSGA”), BLM—while not disputing Petitioners’ standing or
their ongoing injuries-in-fact caused by BLM—has now asserted that this case is
moot. See ECF No. 71 at 17-25. That assertion, however, is predicated on an
erroneous recitation of the proper legal standard and a mistaken application of the
facts to that legal standard. Hence, for the following reasons, this case presents a
live controversy and the Court has jurisdiction to resolve the merits of this dispute.
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A.

This Case Is Not Moot Because Meaningful Relief Remains
Available To Remedy Petitioners’ Ongoing Injuries Caused By
The 2014 Roundup.

In no uncertain terms, the Supreme Court has explained that “a case becomes
moot only when it is impossible for a court to grant any effectual relief whatever to
the prevailing party.” Chafin v. Chafin, 133 S. Ct. 1017, 1023 (2013) (emphases
added) (quotation marks and citation omitted). Thus, “[a]s long as the parties have
a concrete interest, however small, in the outcome of the litigation, the case is not
moot” if any relief whatsoever remains available to redress their alleged injuries.
Id. (emphasis added) (quotation marks and citation omitted).
Despite BLM’s unsupported assertion that “the mere availability of an
equitable remedy is not the test for [mootness] in this Circuit,” ECF No. 71 at 20,
the test employed by the Tenth Circuit is, necessarily, identical to and consistent
with the standard established by the Supreme Court: “[a] case is not moot when
there is some possible remedy, even a partial remedy or one not requested by the
plaintiff.” Rezaq v. Nalley, 677 F.3d 1001, 1010 (10th Cir. 2012) (citations and
quotation marks omitted); see also Fowler v. United States, 647 F.3d 1232, 1242
(10th Cir. 2011) (“A case is moot when it is impossible for the court to grant any
effectual relief whatever to a prevailing party.”) (emphasis added) (quotation marks
and citation omitted). Of course, in determining whether jurisdiction exists, the
Court must presume that Petitioners will prevail on the merits, thereby focusing the
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inquiry on whether the Court could order any relief to Petitioners—as the
prevailing party—that would redress their alleged injuries. See, e.g., Day v. Bond,
500 F.3d 1127, 1137 (10th Cir. 2007) (explaining that “we assume, during the
evaluation of the [court’s jurisdiction], that the plaintiff will prevail on his merits
argument—that is, that the defendant has violated the law.”).1
Under the prevailing legal test, there can be no legitimate dispute that there
exists at least “some possible remedy” that the Court could impose on BLM in
order to redress some of Petitioners’ injuries, should Petitioners prevail on the
merits. For example, Petitioners have provided sworn declarations demonstrating
the myriad cognizable injuries they continue to suffer as a result of BLM’s fall
2014 roundup that is challenged in this case. See ECF Nos. 67-1, 67-2, 67-3, 67-4.
These ongoing harms to Petitioners—which, again, Respondents have not
contested as insufficient to confer standing (nor could they)—include, inter alia,
aesthetic and economic injuries due to BLM’s management of these HMAs at far
below the legally required AMLs, which significantly impairs Petitioners’ ability to
view, observe, and photograph these wild horse populations; the aesthetic and
emotional losses related to the removal of specific wild horses to whom Petitioners
BLM’s peculiar—and erroneous—assertion that “the mere availability of an equitable remedy is
not the test for [mootness] in this Circuit,” ECF No. 71 at 2, is belied by dozens of Circuit cases
making clear that the availability of a remedy is, in fact, the touchstone for determining mootness.
See, e.g., In re C.W. Mining Co., 641 F.3d 1235, 1239 (10th Cir. 2011) (explaining that the
“mootness question turns on what relief is available to [a party] if it were to prevail” and that
when “it is not impossible for the court to grant some measure of effective relief,” a case is not
moot) (emphasis added) (quotation marks and citations omitted).
1

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have longstanding personal and professional relationships; and aesthetic and
pecuniary harms to Petitioners associated with the adverse effects on their ability to
view, photograph, and otherwise observe the now skittish and human-averse wild
horses in these HMAs after BLM’s invasive roundup. Id.
Especially given that the Petition for Review in this case sought extremely
broad injunctive relief—in addition to declaratory relief—there is certainly no basis
for a mootness finding. See ECF No. 1, Prayer for Relief. To the contrary, among
other available remedies, Petitioners have testified in sworn declarations that the
Court could redress their injuries—at least in part—by ordering BLM to return to
these HMAs some of the wild horses that Petitioners assert were unlawfully
removed from public lands without observance of federal law. See ECF No. 67-1 ¶¶
11-12; ECF No. 67-2 ¶ 14; ECF No. 67-3 ¶ 9; ECF No. 67-4 ¶ 11.2
Importantly, BLM has not seriously disputed the availability of such relief; if
anything, BLM has underscored the availability of such relief by conceding that the
wild horses that were removed from these HMAs in fall 2014 remain in BLM’s
care in Wyoming and adjacent states. See ECF No. 71 at 21 (citing Foster Decl. ¶
6). Thus, in light of the fact that BLM retains current ownership over the subject

2

Because there still remains meaningful injunctive relief available to the Court, the few cases
cited by BLM finding mootness where the plaintiff alleged only declaratory relief are plainly
inapposite and have no bearing on this matter. See ECF No. 71 at 20; see also Kardules v. City of
Columbus, 95 F.3d 1335, 1343-44 (6th Cir. 1996) (explaining that where declaratory relief is the
only potential remedy, “it is often difficult to draw a line between actual controversies and
attempts to obtain advisory opinions on the basis of hypothetical controversies”).
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horses, the inevitable conclusion under the prevailing legal test is that Petitioners’
case is not moot because it is not “impossible for [the] court to grant any effectual
relief whatever,” should Petitioners prevail. Chafin, 133 S. Ct. at 1023.
Rather than dispute the availability of relief should Petitioners prevail, BLM
presents two arguments that are irrelevant to the mootness determination. First,
BLM asserts that returning horses “that have been held in captivity back into the
wild poses a number of significant considerations,” such that it could be “difficult
and potentially unsafe to return these horses to the range.” ECF No. 71 at 21.3
Although Petitioners dispute the premise underlying BLM’s contention—
namely, that it would be potentially unsafe to return wild horses to the range after
only a few months in captivity—BLM’s argument conflates the critical difference
between a court’s role in determining whether a case is moot (i.e., is any relief
available should Petitioners prevail?) with a court’s role in determining at the
conclusion of the merits what specific remedy to adopt (i.e., assuming Petitioners
have now prevailed, which of the available remedies should be adopted and subject
to what conditions?). This is precisely why the Court must assume for purposes of
BLM’s assertion that it could be “unsafe to return these horses to the range” after only a few
months in captivity is entirely fabricated and contradicts BLM’s own management practices. For
example, BLM returned dozens of wild horses to the Saylor Creek HMA in Oregon after more
than one year in captivity. See BLM, Saylor Creek HMA, available at http://www.blm.gov/id/st/
en/prog/wild_horses_/hmas/saylor_creek_hma.html (stating that the herd “was gathered in 2010
after another devastating wildfire” but “30 horses were returned to the HMA in the early fall of
2011”). Likewise, BLM’s purported concern about returning (male) geldings to the range cannot
serve as a basis for prohibiting the return of mares to the range, and, in any case, disregards that
the consent decree explicitly contemplates managing geldings in these HMAs. See AR468.
3

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the mootness determination that Petitioners will prevail, see supra at 3-4, which is
entirely distinct from the Court’s merits determination and its adoption of remedies
commensurate to the violations found. Thus, this assertion only becomes relevant at
the remedy stage and is not germane to analyzing mootness.4
Second, BLM asserts that returning any of the wild horses removed in fall
2014 to even the portions of these HMAs that consist of solid blocks of public land
would violate Section 4 of the WHA and the consent decree because “those horses
will invariably migrate back to RSGA’s lands.” ECF No. 71 at 21. This is not so.
As a threshold matter, BLM again seeks to inject into the mootness inquiry a
legal question that can only be answered on the merits and has nothing to do with
the availability of relief. In any case, as explained, managing federally protected
wild horses on solid public land blocks within these HMAs consistent with the
agency’s AMLs cannot even remotely constitute a violation of the WHA (or the
consent decree) since there is no legal duty or authority to preemptively avoid the
potential straying of wild horses from public land. See Fallini v. Hodel, 783 F.2d
If the Court has any questions about the “significant considerations” that could purportedly flow
from a Court order requiring BLM to return some horses to the range, those issues could be
sorted out in briefing on remedy after the Court issues its merits ruling. For example, BLM has
cursorily asserted that returning some wild horses to the range would result in “increased costs to
the BLM,” ECF No. 71 ¶ 6, which is impossible to reconcile with BLM’s own data
demonstrating the exorbitant financial cost of managing horses in holding facilities as compared
to managing them within AMLs in the wild. See Exhibit E at 10 (noting that it costs $46,252 per
unadopted horse in captivity, meaning that the 627 non-excess horses that BLM removed in fall
2014 could cost BLM and taxpayers up to $29,000,000). In any event, the Court could entertain
the relative equities (e.g., costs) of particular forms of relief in post-merits remedy briefing.
4

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1343, 1346 (9th Cir. 1986) (“We fail to find any suggestion by Congress . . . that
the BLM ha[s] a duty, ministerial or prescribed, to prevent straying of wild horses
onto private land.”); id. (“The Act does not charge BLM with the duty to prevent
wild horses from straying.”); Roaring Springs Assocs. v. Andrus, 471 F. Supp. 522,
523 (D. Or. 1978) (“Even if . . . [BLM] must go back again to retrieve the animals,
that is nevertheless [its] duty prescribed by the statute.”).
Moreover, BLM’s assertion that returning even a single horse to the solid
block of public land in these HMAs would violate Section 4 of the WHA due to
potential straying borders on the nonsensical; if that were true, BLM is currently
violating this provision with respect to the 649 horses that BLM admits it left in
these HMAs after the fall 2014 roundup. See ECF No. 71-1 ¶ 4. Hence, for several
reasons, BLM has failed to refute the basic fact that at least some injunctive relief is
available to redress Petitioners’ injuries—a far different question from whether the
Court will (or should) ultimately adopt such relief in its final order.5

5

Tellingly, BLM has raised—and lost—these arguments before. In In Defense of Animals v. U.S.
Department of the Interior, the court explained that the injury “is Plaintiffs’ diminished ability to
enjoy wild horses and burros on the [HMA],” and “[b]ecause the wild horses . . . removed from
the range have not been returned, this Court finds that Plaintiffs do in fact continue to suffer the
lost enjoyment of those animals,” which is “an ongoing injury.” 808 F. Supp. 2d 1254, 1266
(E.D. Cal. 2011). BLM asserted that “all possible [remedial] options are foreclosed” because “all
gelding operations were completed” and because “the [WHA] prevents the return of wild horses
to an overpopulated range.” Id. Nevertheless, the court held that “it could provide effective relief
in the form of relocation of the animals to the [HMA] assuming Plaintiffs” win on the merits. Id.
BLM’s criticism of that ruling as possibly no longer “good law” is erroneous, see ECF 71 at 22
n.4, as the Ninth Circuit did not review the district court’s mootness ruling but instead found
moot a “preliminary injunction . . . because the roundup sought to be enjoined has taken place.”
648 F.3d 1012, 1013 (9th Cir. 2011) (emphases added). This distinction is crucial, as permanent
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B.

This Case Is Also Justiciable Because The Court Could Order
BLM To Remedy Its Alleged NEPA Violations.

Although the availability of relief alone is sufficient to overcome mootness
here, Petitioners also provide another basis upon which the Court could redress
Petitioners’ injuries in the context of their NEPA claims.
The Tenth Circuit has consistently held that a NEPA case is not rendered
moot simply because the agency has carried out the activity, so long as the court
can provide some remedy if the plaintiffs prevail on the merits. See, e.g., Airport
Neighbors Alliance, Inc. v. United States, 90 F.3d 426, 428-29 (10th Cir. 1996)
(explaining that “courts still consider NEPA claims” concerning completed actions
“when the court can provide some remedy if it determines that an agency failed to
comply with NEPA,” and finding case not moot “because if we find that the
Respondents failed to comply with NEPA, we could order that the runway be
closed or impose restrictions on its use”); Utah Envtl. Cong. v. Russell, 518 F.3d
817, 824-25 (10th Cir. 2008) (explaining that “even where it is too late to . . .
provide a fully satisfactory remedy the availability of a partial remedy will prevent
the case from being moot”) (citations omitted); Burbank Anti-Noise Group v.
Goldschmidt, 623 F.2d 115, 116 (9th Cir. 1980) (holding action challenging already
completed sale of property not moot when the actions could be “undone”).

injunctive relief (e.g., returning horses to the wild) may still be available even where preliminary
injunctive relief aimed solely at preserving the status quo ante is no longer available.
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This proposition is especially pertinent in this case since Petitioners are
arguing on the merits that BLM avoided its legal duty to prepare any NEPA review
whatsoever—an Environmental Impact Statement (“EIS”) or an Environmental
Assessment (“EA”)—and instead took the unprecedented action of invoking a
categorical exclusion that is expressly limited to removal of horses from private
land to remove hundreds of wild horses from public land. Hence, as noted above,
not only could the Court order BLM to return to the HMAs at least some of the
illegally removed horses if Petitioners prevail, but the Court could also nullify the
precedent set by BLM’s decision by ordering BLM to clarify in its relevant NEPA
handbooks and manuals that the categorical exclusion pertaining to private land
wild horse removals cannot legally be applied to actions on public land.
Alternatively, the Court could impose restrictions on BLM’s ongoing
management of the remaining wild horses in these HMAs, including by prohibiting
BLM from removing any horses from the range—at least on public land—until the
relevant population numbers are back within the legally required AMLs.
Given the panoply of remedial options—including various management
conditions and restrictions—available to the Court to remedy the alleged NEPA
violations, this case is not moot. See, e.g., Russell, 518 F.3d at 824-25 (finding
plaintiffs’ NEPA challenge to the invocation of a categorical exclusion not moot
even where “the contractor has already completed its one-time magnesium chloride
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application” because the agency “retains the flexibility to implement the project
design”); Nat’l Parks Conservation Ass’n v. FAA, 998 F.2d 1523, 1525 n.3 (10th
Cir. 1993) (finding case challenging construction project not moot after
construction was completed when restrictions could be placed on the use of the
project); Airport Neighbors Alliance, 90 F.3d at 428-29 (same).
C.

Even If Relief Were Not Available, This Case Is Not Moot.

Because the Court has various forms of relief available to remedy
Petitioners’ injuries, the Court need not reach the question of whether any mootness
exceptions apply. In any event, Petitioners briefly explain why—if this case were
otherwise moot (which it is not)—it would nevertheless be justiciable.
First, despite BLM’s unsubstantiated assertions that the agency is unlikely to
authorize any future actions invoking the legal provisions underpinning the
decision challenged in this case, see ECF 71 at 24-25, BLM cannot overcome its
substantial burden of demonstrating that it is impossible, or even unlikely given that
each BLM field office operates independently, for the allegedly unlawful conduct
challenged by Petitioners to recur. As the Supreme Court has explained, “[t]he
‘heavy burden of persua[ding]’ the court that the challenged conduct cannot
reasonably be expected to start up again lies with the party asserting mootness.”
Friends of the Earth v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189 (2000). In
turn, “a defendant claiming that its voluntary compliance moots a case bears the
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formidable burden of showing that it is absolutely clear the allegedly wrongful
behavior could not reasonably be expected to recur.” Id. at 190 (emphasis added).
Indeed, BLM can offer the Court no such certainty that the challenged
conduct will not recur, stating that “it is possible a gather may be necessary in” the
Great Divide Basin, Salt Wells Creek, or Adobe Town HMAs; “it is likely that no
gather will be authorized for the White Mountain HMA”; and “if a gather is
authorized in 2015 . . . [it] may be very different from the challenged decisions.”
ECF No. 71 at 23-25 (emphases added). In light of these equivocal statements from
BLM—i.e., the party with the “formidable burden of showing that it is absolutely
clear” that the challenged conduct will not recur—this case is not moot.6
Second, for the same reasons that BLM cannot fully assure this Court that it
will not engage in the allegedly unlawful conduct with respect to future gathers in
these HMAs, another mootness exception applies because the challenged conduct
would thus be “capable of repetition but evading review.” As the Tenth Circuit has
explained, this exception applies where “(1) the duration of the challenged action
6

It is striking that BLM now appears to be backing away from the unprecedented approach
challenged here. BLM suggests that any future roundups in these HMAs “would employ different
legal mechanisms under the [WHA] and NEPA” and thus “the legal parameters of those decisions
may look very different than BLM’s 2014 decision.” ECF 71 at 24-25. But BLM’s position
before this Court is that employing those different mechanisms—i.e., abiding by Section 3 of the
WHA and preparing an EIS or EA under NEPA—would violate Section 4 of the WHA and the
consent decree. This is yet another instance of BLM flip-flopping positions to serve its own
interests before this and other courts, see ECF 67 at 34-35, which only highlights the arbitrary
and capricious nature of the decision under review. At any rate, the fact that BLM’s future actions
might pass muster cannot moot this case. Green v. Haskell Cnty. Bd. of Comm’rs, 568 F.3d 784,
795 (10th Cir. 2009) (“The possibility that a future monument installed under different
circumstances might pass constitutional muster does not moot the present case”).
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[is] too short to be fully litigated prior to its cessation or expiration; and (2) there [is
a] reasonable expectation that the same complaining party will be subjected to the
same action again.” Buchheit v. Green, 705 F.3d 1157, 1160 (10th Cir. 2012)
(citations omitted). Petitioners easily satisfy both prongs of this test.
There is no question that, if the Court found this case moot without resolving
the merits simply because BLM pressed forward with the removal only weeks after
issuing the Decision Record and before the Court could hear this matter on the
merits, Petitioners would forever be relegated to seeking preliminary injunctive
relief immediately upon issuance of BLM decisions but would never have their day
in court for final resolution of the merits based on a full administrative record as
required by the APA. See 5 U.S.C. § 706. Simply put, an incomplete and rushed
preliminary proceeding cannot substitute for a well-considered merits proceeding.
As such, especially under the highly truncated time frame during which the
preliminary injunction proceedings unfolded in this case, “the duration of the
challenged action [is] too short to be fully litigated prior to its cessation or
expiration.” Green, 705 F.3d at 1160; see also Herriman v. Bell, 590 F.3d 1176,
1181-82 (10th Cir. 2010) (applying mootness exception because “full litigation on
the merits was simply not possible before the election”) (emphasis added).
As to the second prong, Petitioners again point to BLM’s own equivocal
statements evincing that there is a “reasonable expectation” that Petitioners may be
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“subjected to the same action again” since BLM cannot rule out that it would act
under the same authorities by which the agency now asserts it is bound. Id. This
point is especially salient given that BLM has various contractual obligations under
the consent decree, which by its own terms does not terminate until February 2023.
See AR472. Under these facts, there is a reasonable, and indeed likely, expectation
that these issues will once again come to a head and that BLM, left to its own
devices, will resort to the spurious conduct it is defending in this suit. See Bell, 590
F.3d at 1181-82 (applying mootness exception where defendants were uncertain as
to future plans but “were considering” acting adverse to plaintiffs’ interests).
For these reasons, BLM has not proffered any legitimate basis for a mootness
finding. Therefore, the Court should proceed to resolution of the merits.
II.

RESPONDENTS CANNOT ESCAPE THE CLEAR APPLICATION
OF CHEVRON TO THE PLAIN LANGUAGE OF THE WHA.
In their opening brief, Petitioners presented compelling reasons why Chevron

Step 1 governs the Court’s WHA analysis because Congress clearly delineated
BLM’s authority with respect to all wild horses on public land (Section 3) and to
all horses found on private land (Section 4), particularly where Congress set forth
no specific exception in Section 3 related to BLM’s management of the Wyoming
Checkerboard. See ECF No. 67 at 24-31. Alternatively, Petitioners explained why
BLM’s interpretation could not be sustained under Chevron Step 2 for violating

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several canons of statutory construction and running afoul of BLM’s own past
interpretations and guiding policies. Id. at 33-37.
In response, BLM and its co-respondents have, for the first time, asserted
that the WHA is ambiguous, in a thinly veiled attempt to escape the application of
Chevron Step 1 where no such ambiguity exists. Just as troubling is Respondents’
creation of a straw man, in which Respondents have severely mischaracterized
Petitioners’ legal position, presumably to deflect the Court’s attention from the
crystal clear statutory language that controls here. Thus, before returning to
Respondents’ merits defenses, it is necessary to dispel a diversionary argument that
should play no role in the Court’s resolution of this case.
A.

Petitioners Seek To Harmonize Sections 3 And 4 Of The WHA,
Rather Than Ignore Either Statutory Obligation (As BLM Has).

Apparently recognizing the inability of BLM’s decision to withstand
Chevron scrutiny, Respondents have taken aim at an argument that Petitioners
simply have not made. In short, Respondents have concocted a legal fiction—i.e.,
that Petitioners seek to have BLM comply with Section 3 of the WHA, to the
exclusion of Section 4, when removing horses from the combined public and private
lands of the Checkerboard. See ECF No. 71 at 26 (asserting that Petitioners are
asking BLM “to abdicate its Section 4 obligations”); id. at 31 (Petitioners “ask[]
this Court to ignore Section 4”); id. at 30 (Congress did not “intend[] Section 3 to
trump Section 4”); ECF No. 70 at 16 (Petitioners seek to strip RSGA of its WHA
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remedies); ECF No. 69 at 19 (Petitioners seek “to apply the provisions in Section
3” “without regard to Section 4’s ministerial direction”); ECF No. 69 at 43
(Petitioners seek to “nullify BLM’s duties under Section 4 of the WHA”).
In reality, Petitioners’ position could not be farther from Respondents’
mischaracterization. Rather than arguing that Section 3 of the WHA trumps Section
4, or that BLM should act in a way that ignores, nullifies, or abdicates its Section 4
duties, Petitioners have advanced the commonsense position that BLM must
comply with its mandatory duties under both Sections 3 and 4 if the agency opts to
combine in a single decisionmaking process the removal of wild horses from public
land as well as from private land. Otherwise, BLM is shirking either its Section 3
duties on public land or its Section 4 duties on private land.7
Therefore, Petitioners have no qualms with BLM complying with Section 4
by “arrang[ing] to have the animals removed” from private land if specific horses
“stray from public lands onto privately owned land.” 16 U.S.C. § 1334. However,
should BLM wish to remove wild horses from public land—whether independently

7

Nothing compels BLM to combine these two separate actions into a single decisionmaking
process. This is significant because if BLM sought only to remove wild horses from public lands
in these HMAs, the agency would necessarily have to comply with Section 3. See ECF 71 at 26
(conceding that “it is true that Section 4 does not govern public lands”). Thus, it cannot be the
case that merely because BLM opted—for its own convenience—to combine an action on public
land requiring Section 3 compliance with a separate action on private land requiring Section 4
compliance, that in the process the Section 3 obligations that otherwise existed were eviscerated.
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or in conjunction with a Section 4 private land removal—BLM has no choice but to
abide by the mandatory legal prerequisites Congress imposed in Section 3.8
Importantly, Petitioners are the only party whose position allows for
compliance with both Sections 3 and 4 of the WHA, as Respondents are defending
BLM’s 2014 decision in which the agency completely neglected its Section 3
obligations in favor of Section 4. That Petitioners have presented the only viable
path forward that harmonizes, rather than jettisons, one of these statutory provisions
is hardly surprising, given that it is the same longstanding position held by BLM
itself until its about-face here—a position the agency adhered to in authorizing
many combined wild horse removals from the Checkerboard’s public and private
lands, including as recently as 2013. See, e.g., AR636, AR645.
Accordingly, although Respondents have seriously distorted Petitioners’
position in order to present the Court with a false dichotomy (i.e., BLM can comply

RSGA asserts that “Section 3 compliance force[s] the landowners to maintain wild horses
without consent.” ECF No. 69 at 19. To the contrary, Petitioners’ position is that BLM can—as it
has for decades, e.g., AR645—round up all of the wild horses on the combined public/private
lands of the Checkerboard pursuant to Sections 3 and 4, and return to the large solid public land
block (i.e., non-Checkerboard land) only those horses deemed “non-excess.” As was the case in
past gathers in which BLM employed this joint Section 3/Section 4 tactic, see AR645, acting in
this manner would adhere to Section 4 by removing all horses from all RSGA private lands, and
it would also adhere to Section 3 by ensuring that only excess horses are removed from the range
and that all AMLs are complied with. Thus, plainly, Petitioners’ (and formerly BLM’s) approach
would certainly not “force[] the landowners to maintain wild horses without consent,” ECF No.
69 at 19, but instead would respond in precisely the manner Congress envisioned in Section 4 by
removing all horses from RSGA’s land upon written request. The fact that some horses may, at
some future time, stray from the solid public land block is irrelevant, as Section 4 does not
authorize removal of wild horses from public land to prevent straying that may occur at some
indeterminate time in the future. See ECF No. 67 at 28 (citing cases).
8

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with either Section 3 or Section 4), Petitioners’ position is that there is no such
mutual exclusivity—which is only reinforced by Congress’ unequivocal mandate
that BLM comply with both provisions if and when they are triggered. See Friends
of the Earth, 446 F.3d at 145 (holding that where a statute presents two standards
for compliance, “[t]he existence of two conditions does not authorize [the agency]
to disregard one of them”).9
B.

Respondents’ WHA Construction Fails Under Chevron.

As explained, this case presents a straightforward Chevron Step 1 inquiry
because Congress spoke in clarion terms in the WHA. As Respondents candidly
admit, there is nothing ambiguous about the Act: Section 3 directs all BLM actions
related to wild horses on public land, while Section 4 governs all BLM actions on
private land. See ECF No. 71 at 26 (“Section 4 does not govern public lands” and
“Section 3 does not govern private lands.”); ECF No. 70 at 15 (“Read together,
Sections 3 and 4 cover the universe of scenarios.”). Congress imposed these
provisions as absolute mandates without exception, despite Congress’ awareness of
the unique challenges presented by BLM’s management of the Checkerboard.

Although RSGA repeatedly refers to BLM’s Section 4 duty as “ministerial,” BLM does not
share that view. In fact, while BLM has a duty to “arrange to have the animals removed” from
private land upon request, 16 U.S.C. § 1334, BLM has discretion in determining when and how to
do so. See ECF No. 71 at 27 (“BLM can exercise discretion as to how and when it removes these
wild horses”); 43 C.F.R. § 4720.2-1 (BLM “shall remove stray wild horses . . . from private lands
as soon as practicable”). That BLM retains this discretion only underscores that it is possible for
BLM to satisfy both statutory mandates before a combined public/private removal takes place.
9

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Not only have Respondents failed to seriously explain how this case can
avoid scrutiny under Chevron Step 1, but BLM has also made a number of key
concessions that undercut its primary merits argument that the WHA is ambiguous.
For example, despite the fact that BLM’s entire case hinges on the ambiguity of
Section 4 that purportedly affords it discretion to remove horses from public land
under that provision, BLM admits, paradoxically, that “it is true that Section 4 does
not govern public lands.” ECF No. 71 at 26 (emphases added). Nor, for that matter,
can BLM’s merits position be squared with the agency’s concession that BLM may
only “remove horses from public lands if those horses are determined to be in
excess—that is, over [AMLs].” Id.; see also id. at 2-4 (contrasting Section 3 duties
on public land with Section 4 duties on private land). These contradictions
highlight the inescapable conclusion that Congress spoke plainly in the WHA, and
the Court and parties are therefore bound by the Act’s explicit terms.
This conclusion is only bolstered upon close examination of Respondents’
ambiguity argument. As a threshold matter, Petitioners note that BLM did not
assert that the WHA was ambiguous in the decision document challenged in this
case, nor did Respondents assert statutory ambiguity in the district court or
appellate preliminary injunction proceedings. Rather, BLM’s stated (albeit facially
erroneous) position—until now—has been that Section 4 is, in fact, clear, and it
grants BLM the authority and discretion to remove wild horses from public land
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where it would otherwise be difficult, infeasible, or inconvenient for BLM to
discharge its WHA duties. See, e.g., AR3360 (asserting that “it is practicably
infeasible” to remove horses only from private lands); ECF No. 30 at 19-21
(arguing that Section 4 clearly affords BLM discretion to act on public lands).
It appears that Respondents’ change of heart came only after Petitioners
pointed out in their opening brief that policy and practical considerations—such as
administrative convenience—are legally irrelevant under the Chevron framework.
See ECF No. 67 at 29-31. Now realizing that administrative convenience will not
suffice as a basis for upholding BLM’s decision under Chevron, Respondents have
rapidly shifted to a different tack: asserting, for the first time, that the statute is
ambiguous, thereby affording BLM wide latitude in exercising its discretion to
resolve the situation at hand. See, e.g., ECF No. 71 at 29 (“It is within this
checkerboard context that there is ambiguity . . . .”); id. (asserting that BLM
“exercised this discretion to resolve the [WHA’s] ambiguity and tension”).10

Respondents’ refusal to come to grips with plain language extends past the WHA—they now
point to the consent decree’s statement that, “[p]ursuant to 16 U.S.C. § 1334, BLM agrees to
remove all wild horses located on RSGA’s private lands, including Wyoming Checkerboard
lands,” AR467 (emphasis added), to assert that BLM is required to remove all wild horses from
public Checkerboard lands. See ECF No. 69 at 34 (asserting that BLM agreed to “remove all wild
horses from the Checkerboard by RSGA’s request”); ECF No. 71 at 12 (asserting that BLM had
to “remove all wild horses from the checkerboard” to “ensure compliance with the Consent
Decree”). But, in light of the comma and the subsequent use of the word “including,” this
statement very clearly refers only to RSGA’s private lands (including RSGA private lands found
within the Checkerboard). In any case, as the consent decree concedes, BLM’s implementation of
the decree cannot conflict with the WHA, FLPMA, or NEPA. AR474, AR471-72.
10

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But, despite Respondents’ efforts to distance themselves from the policy
rationale underlying BLM’s decision in order to survive Chevron scrutiny,
Respondents have undermined any serious attempt to raise an ambiguity argument
by repeatedly harping on the single consideration underpinning BLM’s decision:
administrative convenience. See ECF 71 at 32 (this is a “management challenge
presented by the unique pattern of checkerboard land ownership”); ECF No. 70 at
13 (asserting that Petitioners are “ignoring the realities”). As explained, however,
public policy concerns simply cannot trump the plain terms of Section 3 if BLM
desires to remove any wild horses from public—rather than private—lands. See
ECF No. 67 at 29-31. Thus, the Court must reject this backdoor attempt to
manufacture ambiguity as nothing more than a litigating position designed to mask
the fact that BLM’s stated policy consideration (administrative convenience), see
AR3360, cannot pass muster as a basis for bypassing the WHA’s plain language.11

Not only must the Court reject Respondents’ belated assertion that the WHA is ambiguous on
the grounds that the statutory language could not be any clearer, but it also cannot be sustained
because it is a classic post hoc rationalization. See, e.g., Bowen v. Georgetown Univ. Hosp., 488
U.S. 204, 212-13 (1988) (rejecting “[d]eference to what appears to be nothing more than an
agency’s convenient litigating position” which “is contrary to the narrow view of that provision
advocated in past cases” by the agency); Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 50 (1983) (explaining that “courts may not accept appellate counsel’s post hoc
rationalizations for agency action” because “[i]t is well established that an agency’s action must
be upheld, if at all, on the basis articulated by the agency itself”). By the same token, the Court
should disregard the many citations in RSGA’s brief to extra-record declarations, since the APA
confines the Court’s review solely to the administrative record. See 5 U.S.C. § 706; Garvey v.
Freeman, 397 F.2d 600, 610-11 (10th Cir. 1968) (“The integrity of the administrative process
must be judged by what took place in the administrative proceedings as reflected on the
administrative record unaided by affidavit proof in the reviewing court.”) (citations omitted).
11

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Moreover, assuming arguendo that Respondents’ ambiguity defense was
sincere, it would fail to hold water for other reasons. First, Respondents’ ambiguity
argument is predicated on the specious assertion that, although Congress clearly
prescribed BLM’s duties on public land (Section 3) and private land (Section 4),
these provisions are nevertheless unclear because “Congress did not speak to the
precise issue of how the Wild Horses Act should be implemented in the
checkerboard.” ECF 71 at 28; see also id. at 29 (asserting that the Act “does not
speak to what the agency should do when public and private lands are so
intertwined” as in the Checkerboard). Thus, Respondents’ argument boils down to
the contention that it can remove wild horses from public land under Section 4
because Congress did not expressly prohibit BLM from doing so in the WHA.
That reasoning severely misses the mark. As courts have explained:
Implicit in the EPA’s argument is the notion that if Congress has not
mentioned public health in [the statute], then Congress is silent or
ambiguous as to that issue, and the Agency therefore has discretion to
regulate on the basis of that issue. This argument, however,
misconstrues the Chevron analysis. . . . [W]ere courts to presume a
delegation of power absent an express withholding of such power,
agencies would enjoy virtually limitless hegemony, a result plainly out
of keeping with Chevron and quite likely with the Constitution as well.
Ethyl Corp. v. EPA, 51 F.3d 1053, 1060-61 (D.C. Cir. 1995); see also Am. Petr.
Inst. v. EPA, 52 F.3d 1113, 1120 (D.C. Cir. 1995) (“To suggest, however, that
Chevron step two is implicated any time a statute does not expressly negate the
existence of a claimed administrative power (i.e. when the statute is not written in
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‘thou shalt not’ terms), is both flatly unfaithful to the principles of administrative
law . . . and refuted by precedent. Thus, we will not presume a delegation of power
based solely on the fact that there is not an express withholding of such power.”)
(citations omitted); Halverson v. Slater, 129 F.3d 180, 187 (D.C. Cir. 1997) (stating
that “the absence of an express proscription [in the statute] provides no green light
to ignore the proscription necessarily implied by the limiting language of [the
statute]”). Accordingly, this argument must be rejected.
Second, Respondents’ newly minted ambiguity argument ignores the
inconsistency it creates with BLM’s longstanding regulation formally interpreting
Section 4. In 1980, pursuant to its authority in the WHA, BLM promulgated noticeand-comment regulations to implement the Act. For thirty-five years, the pertinent
regulation implementing Section 4 has stated that “[u]pon written request” BLM
“shall remove stray wild horses and burros from private lands as soon as
practicable.” 43 C.F.R. § 4720.2-1 (emphasis added). Hence, as BLM’s formal
construction of Section 4 makes clear—via a regulation that continues to bind
BLM’s actions—that statutory provision has never conferred any authority to BLM
to remove any wild horses from public land to preemptively prevent potential
straying in the future or for any other reason. See ECF No. 67 at 28.12
BLM’s regulation limiting Section 4 removals of wild horses to “private lands” is not only
problematic for the agency under Chevron, but it also means that BLM’s new—and
fundamentally different—construction of Section 4 is tantamount to an unlawful regulatory
modification without first engaging in formal notice-and-comment rulemaking. See, e.g., Alaska
12

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Third, as noted, Petitioners present the Court with the only approach which
allows compliance with both statutory mandates. See supra at 17-18. This point is
crucial, as basic canons of statutory construction require courts to reject
interpretations (such as Respondents’ WHA construction) that would nullify one
provision, where alternative constructions can effectuate both provisions. See Watt
v. Alaska, 451 U.S. 259, 266-67 (1981) (courts must adopt statutory interpretations
that “give effect to each [provision] if we can do so while preserving their sense
and purpose”); Morton v. Mancari, 417 U.S. 535, 551 (1974) (“When two statutes
are capable of co-existence, it is the duty of the courts, absent a clearly expressed
congressional intention to the contrary, to regard each as effective.”).13
For all of these reasons, under Chevron Step 1 this Court must give effect to
Congress’ unambiguously expressed intent in Section 3 and invalidate BLM’s
Prof. Hunters Ass’n v. FAA, 177 F.3d 1030, 1034 (D.C. Cir. 1999) (explaining that “an agency
has less leeway in its choice of the method of changing its interpretation of its regulations than in
altering its construction of a statute,” and thus “[w]hen an agency has given its regulation a
definitive interpretation, and later significantly revises that interpretation, the agency has in effect
amended its rule, something it may not accomplish without notice and comment”).
13

Amici curiae assert—on the basis of a legislative amendment that never passed—that Congress
clearly intended to grant BLM authority under Section 4 to remove wild horses from public land.
See ECF No. 72-1 at 15-17. None of the Respondents (including BLM) join this argument, and
for good reason. Not only is the legislative history unclear as to why this amendment never made
it out of committee, but it also ignores that the proposal was never vetted by the full Congress
(thus defeating any notion of Congressional acquiescence). In any event, courts have explained
that it would be folly to divine legislative intent from Congress’ inaction to adopt a specific
amendment, especially where—as here—it has adopted statutory language that is plain on its
face. See, e.g., United States v. Price, 361 U.S. 304, 310-11 (1960) (finding that “non-action by
Congress affords the most dubious foundation for drawing positive inferences,” where Congress
did not adopt “an express repudiation of [two Ninth Circuit] decisions” when amending a law);
Sparrow v. IRS, 949 F.2d 434, 439 (D.C. Cir. 1991) (“Inferring congressional intent from the
failure to enact a legislative proposal is frequently a risky enterprise.”) (citation omitted).
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overreach of its Section 4 authority. See Perf. Coal Co. v. Fed. Mine Safety &
Health Rev. Comm’n, 642 F.3d 234, 239 (D.C. Cir. 2011) (under Chevron, “there is
no reason to manufacture ambiguity when . . . the legislative prose is pellucid”).14
III.

BLM’S DE FACTO AML REDUCTION FLOUTS VARIOUS LAWS.
As Petitioners explained in their opening brief—and Respondents have not

disputed—BLM’s fall 2014 removal reduced the combined wild horse population
in these HMAs to 649 horses, which is 627 horses (49%) fewer than BLM must
maintain at all times under the WHA, FLPMA, and the agency’s own RMPs.
Respondents’ cursory rejoinders all simply reiterate the same (erroneous)
legal argument made in the WHA context—i.e., because BLM pursued this action
solely under Section 4, BLM may run roughshod over any and all Congressional
mandates that would otherwise apply to these federally protected wild horses on
public land. See ECF No. 71 at 43-44; ECF No. 70 at 25-26; ECF No. 69 at 41-43.
For the same reasons that BLM is not legally authorized to remove wild
horses from public land under Section 4 of the WHA, see supra at 18-25, BLM
cannot contravene its own AMLs and the laws upon which they are predicated
simply because BLM erroneously invoked Section 4 for this removal. There are
also independent reasons for overturning BLM’s decision on this basis, including
because the only circumstance in which BLM may be justified in reducing a wild
14

Although Respondents have set forth no basis for reaching Step 2 of the Chevron framework,
Respondents’ WHA construction would nevertheless fail to pass muster under that standard for
the reasons presented in Petitioners’ opening brief. See ECF 67 at 31-37.
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horse population below the governing AML is where there exists a bona fide
“emergency situation[] based on limited forage, water, . . . [or] other limiting
factors” that “threaten[] the health and welfare of a wild horse . . . population.”
AR3997. That certainly was not the basis for BLM’s fall 2014 removal, and thus
BLM was required to abide by the typical rule that “[w]ild horses . . . should
generally not be removed below the AML lower limit.” AR3996 (emphasis added).
Accordingly, BLM’s AML reduction cannot be squared with FLPMA, the
WHA, the governing RMPs, or BLM’s own manual that implements those laws.
IV.

BLM’S CATEGORICAL EXCLUSION VIOLATES NEPA.
Petitioners have explained the many ways in which BLM’s unprecedented

and controversial decision to invoke a categorical exclusion—which on its face is
expressly limited in its application to private land—for the removal of hundreds of
wild horses from public land violates NEPA. See ECF No. 67 at 40-45.
In defense, Respondents again primarily hide behind their faulty WHA
argument, making the unsupported leap in logic that so long as BLM invokes only
Section 4 for a removal action (even if unlawfully), that allows BLM to twist the
plain terms of the private land categorical exclusion to fit the portion of this action
that indisputably occurred on public land. See ECF No. 71 at 34-43. Respondents’
contention—i.e., “[i]f the removal decision is authorized by Section 4, then the
action is eligible for a categorical exclusion,” ECF 70 at 27—borders on the
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irrational. This position would upset the separation of powers doctrine by rendering
immune from legal challenge the propriety of BLM’s invocation of categorical
exclusion 516 DM 11.9, D.4 on the basis that such exclusion automatically applies
once BLM invokes Section 4 as the legal authority for its action. Simply put, just
because BLM says it relying on one authority (Section 4)—especially where the
legality of that action is in question—that cannot serve as a shield from the Court
resolving whether BLM has complied with its independent NEPA obligations.
Moreover, under close inspection (indeed, under any inspection at all), the
validity of categorical exclusion 516 DM 11.9, D.4 under these circumstances—as
applied to the hundreds of wild horses removed from public lands—falls apart.
When an action does not factually comport with the chosen categorical
exclusion, courts must invalidate the action. Russell, 518 F.3d at 825 (rejecting
action that “is simply not equivalent to the minor physical alterations . . . among the
types of maintenance categorically excluded from consideration in an EA”);
California v. USDA, 575 F.3d 999, 1018 (9th Cir. 2009) (finding it “unreasonable
. . . to characterize the permanent repeal of the substantive protections as ‘merely
procedural’ and within the scope of the cited categorical exclusion”); Wilderness
Watch v. Mainella, 375 F.3d 1085, 1095 (11th Cir. 2004) (rejecting categorical
exclusion because “[o]btaining a large van to accommodate fifteen tourists hardly
appears to be a ‘routine and continuing’ form of administration and maintenance”);
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High Sierra Hikers Ass’n v. Blackwell, 390 F.3d 630, 641 (9th Cir. 2004)
(categorical exclusion could not be applied to special use permits); West v. DOT,
206 F.3d 920, 928-29 (9th Cir. 2000) (rejecting categorical exclusion for highway);
Citizens for Better Forestry v. USDA, 481 F. Supp. 2d 1059, 1086-90 (N.D. Cal.
2007) (categorical exclusion improperly invoked for revised planning rule).
Thus, even if BLM’s reliance on Section 4 were legally permissible under
the WHA (which it is not), it would not—and cannot—obscure the clear fact that
BLM’s specific application of categorical exclusion 516 DM 11.9, D.4 to the public
land portion of the fall 2014 removal violates NEPA because removing hundreds of
wild horses from public lands is not remotely equivalent to the “[r]emoval of wild
horses . . . from private lands at the request of the landowner.” AR3389 (emphasis
added). This alone is fatal to Respondents’ NEPA position.15
Although the application of a facially inapplicable categorical exclusion is
dispositive, and thus the Court need not address any other NEPA issues, Petitioners
nonetheless explain additional reasons why an EIS or EA was required here.
Previously, Petitioners explained several rationales for why BLM must prepare at
least an EA to analyze the environmental effects that will result from removing

Conspicuously, BLM has proven Petitioners’ point—the only wild horse removal that BLM
can point to in order to support its contention that BLM “does rely on categorical exclusions for
gathers when it is appropriate,” ECF No. 42 (citing AR3321-35), is the removal of 60 horses
exclusively from “private land near the Bible Spring Complex.” AR3324 (emphasis added).
15

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more than 600 wild horses from public land, as BLM is required to do by its own
wild horse handbooks for all public land removals. See ECF No. 67 at 42-44.
The best defenses that Respondents could muster are that BLM’s team of
eleven specialists determined that no “extraordinary circumstances” exist requiring
an EA, Petitioners did not submit evidence of any effects to BLM, and the removal
will have positive environmental impacts. These responses are easily dismissed.
First, an “extraordinary circumstances” determination is irrelevant if the
chosen categorical exclusion does not fit the action, as is the case here. Second, the
fact that BLM felt compelled to rely on eleven specialists highlights precisely why
the complex environmental impacts here require more extensive analysis. Third, in
any event, contrary to BLM’s assertion, see ECF No. 71 at 38, BLM’s finding that
normal NEPA procedures are inapplicable is not subject to deference. See Grand
Canyon Trust v. FAA, 290 F.3d 339, 342 (D.C. Cir. 2002) (“[T]he court owes no
deference to the FAA’s interpretation of NEPA . . . because NEPA is addressed to
all federal agencies.”); Cit. Against Rails-to-Trails v. STB, 267 F.3d 1144, 1150-51
(D.C. Cir. 2001) (holding that a “determination that NEPA is inapplicable . . . is not
entitled to [] deference” and “is a question of law, subject to de novo review”).
Fourth, BLM accuses Petitioners of not bringing issues “before the agency
via the public comment period,” ECF No. 71 at 40, which is puzzling given that
Petitioners did submit scoping comments, but BLM refused to issue a draft EA or
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EIS upon which Petitioners certainly would have commented on a concrete
proposal. Fifth, RSGA’s ebullient praise for what it views as the dramatic positive
impacts resulting from BLM’s action, see ECF No. 69 at 37-38 (“[r]ange resources
will benefit immediately” and “vegetation [will] recover”), further emphasizes that
some analysis—in either an EA or EIS—is required here, regardless of whether
these profound impacts are labeled as adverse or beneficial. See Envtl. Def. Fund v.
Marsh, 651 F.2d 983, 993 (5th Cir. 1981) (“NEPA is concerned with all significant
environmental effects, not merely adverse ones,” meaning that “a beneficial impact
must nevertheless be discussed in an EIS, so long as it is significant”); 40 C.F.R. §
1508.8 (defining “effects” under NEPA to include “beneficial” effects).
Finally, it is quite telling that BLM has not even responded to Petitioners’
argument that BLM cannot meet its extraordinary circumstances burden when
BLM’s own official has admitted that this action is a precedent-setting and
“fundamental change” in approach, AR3341 and is “very controversial,” AR3349,
on top of the serious genetic diversity concerns raised by BLM’s action. For all of
these reasons, this Court should overturn BLM’s decision as violative of NEPA.
CONCLUSION
Petitioners respectfully request that the Court declare BLM in ongoing
violation of the WHA, NEPA, and FLPMA, and order supplemental briefing on
remedy to determine which specific forms of relief are necessary and appropriate.
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Respectfully submitted,
__/s/__________________________
William S. Eubanks II (pro hac vice)
(D.C. Bar No. 987036)
Caitlin T. Zittkowski (pro hac vice)
(CA Bar No. 290108)
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
Counsel for Petitioners

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CERTIFICATE OF SERVICE
I hereby certify that on February 3, 2015, I electronically filed the foregoing
PETITIONERS’ REPLY BRIEF with the Clerk of the Court using the CM/ECF
system which will send notification of this filing to all counsel of record.
Respectfully submitted,
/s/ William S. Eubanks II
William S. Eubanks II