Jill N. Parrish, United States District Court Judge.
Now before the court is Plaintiffs' demand for injunctive relief pursuant to 5 U.S.C. § 706(1) of the Administrative Procedure Act ("APA"). (See Docket Nos. 2, 51, 103).
This lawsuit was initiated in April of 2014 by Plaintiffs Western Rangeland Conservation Association; Pearson Ranch; Yardley Cattle Company; Runnin C Family Partnership LP; Wintch & Co. Ltd.; Joel Hatch; R. Larson Sheep Company LLC; Matthew Wood; Marilyn Wood; Platt Livestock LLC; Sage Valley Holdings; Escalante Farms, LLC;
Plaintiffs are holders of federal grazing permits issued pursuant to the Taylor Grazing Act, see 43 U.S.C. § 315b, which allow them to graze their livestock on public rangelands throughout central and southern Utah. Plaintiffs contend that BLM has failed to perform certain ministerial duties under the Wild Free-Roaming Horses and Burros Act of 1971 ("WHA"), 16 U.S.C. §§ 1331, et seq., and claim that BLM's failure has adversely impacted their ability to utilize their grazing allotments. Specifically, Plaintiffs argue that BLM has failed to properly manage the excess population of wild horses that directly compete with livestock for forage and water on public lands and damage the rangeland ecosystem. Plaintiffs also allege that BLM has failed to properly remove excess wild horses present on lands owned by the State of Utah and private landowners. Thus, Plaintiffs ask this court to compel BLM to perform its statutory duties under the WHA to remove excess wild horses from both public and private lands.
Plaintiffs' challenge centers on the duties imposed on BLM by the WHA, which delegates the management of free-roaming wild horses and burros to the Department of the Interior and BLM. Development and passage of the WHA was prompted by the rapid disappearance of wild horse and burro populations from western rangelands. See 16 U.S.C. § 1331. Congressional inquiry found that grazing land previously available to wild horses and burros was "fenced off for private use, while the animals were slaughtered for sport and profit." Mountain States Legal Found. v. Hodel, 799 F.2d 1423, 1425 (10th Cir. 1986). The once-prevalent herds of wild horses and burros were hunted to the verge of extinction, and the "remaining animals were driven to marginal, inhospitable grazing areas." Id.
To preserve these "living symbols of the historic and pioneer spirit of the West" from "capture, branding, harassment, or death," Congress enacted the WHA, which designated all wild free-roaming horses and burros as "integral part[s] of the natural system of the public lands," 16 U.S.C. § 1331, and entrusted their protection and management to the Secretary of the Interior and BLM, id. § 1333(a) (placing all wild horses and burros under the jurisdiction of the Secretary of the Interior and directing that the animals be protected and managed as "components of the public lands"). In essence, the Act is "a land-use regulation enacted by Congress to ensure the survival of a particular species of wildlife." Mountain States, 799 F.2d at 1428.
Several years after passage of the WHA, Congress found that its attempt to prevent the decline of wild horses and burros had worked far too well. By 1978, the wild horse and burro populations had rebounded
Id. at 1316 (quoting H.R. Rep. No. 95-1122, 95th Cong., 2d Sess. 23 (1978)). Based on these findings, Congress amended the WHA
43 U.S.C. § 1901(a)(6). The 1978 amendments to the WHA "struck a new balance — or at least clarified the balance Congress intended to strike in 1971 — between protecting wild horses and competing interests in the resources of the public ranges." Am. Horse Prot. Ass'n, 694 F.2d at 1316. As amended, the Act's central goal is not only to protect wild horse and burro populations, but to "achieve and maintain a thriving natural ecological balance on the public lands." 16 U.S.C. § 1333(a). Thus, BLM is tasked with harmonizing the protection of wild horses and burros and the preservation of other rangeland values and uses.
To that end, the WHA requires BLM to compile and maintain "current inventor[ies] of wild horses and burros on given areas of the public lands." Id. § 1333(b)(1); 43 C.F.R. § 4710.2. Inventories of wild horse and burro herds are used to designate appropriate herd management areas ("HMAs"),
Sections Three and Four of the Act delineate specific actions that BLM is required to undertake as part of its management of wild horse and burro populations. Section Three deals with wild horse and burro herds present on public lands and requires BLM to "immediately remove excess animals from the range" once BLM determines (1) that a population of wild horses on a given HMA exceeds its established AML and (2) "that action is necessary to remove excess animals." 16 U.S.C. § 1333(b)(2); see also Wyoming, 839 F.3d at 944 (delineating the two-step process that triggers BLM's ministerial duty to "immediately remove" excess wild horses). Section Four requires BLM to arrange for the removal of wild horses and burros that stray off of public land and onto adjacent private land. See 16 U.S.C. § 1334.
BLM makes management determinations and conducts necessary removals in compliance with both the Federal Land Policy and Management Act of 1976 ("FLPMA"), 43 U.S.C. § 1701, et seq., and the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. § 4321, et seq.; see also Wyoming v. U.S. Dep't of Interior, No. 14-cv-0248, 2015 WL 12916334, at *2 (D. Wyo. Apr. 21, 2015) (unpublished), aff'd, 839 F.3d 938 (10th Cir. 2016).
FLPMA directs BLM to "manage public lands under principles of multiple use and sustained yield" and, to that end, requires the development of both comprehensive resource inventories and broad, programmatic resource management plans for public lands. 43 U.S.C. § 1732(a); Norton v. S. Utah Wilderness All., 542 U.S. 55, 58, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004) (explaining that FLPMA mandates "a dual regime of inventory and planning"). BLM establishes HMAs, sets AMLs within those HMAs, and conducts all wild horse and burro management activities "in accordance with approved land use plans prepared pursuant to" FLPMA. See 43 C.F.R. §§ 4710.1, 4710.3-1; Am. Wild Horse Pres. Campaign, 847 F.3d at 1178 (outlining BLM's interrelated management under the WHA and FLPMA).
NEPA requires BLM to "pause before committing resources to a project and consider the likely environmental impacts of the preferred course of action as well as reasonable alternatives." N.M. ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 703 (10th Cir. 2009) (citing 42 U.S.C. § 4331(b)). Thus, before conducting gathers, removals, or other management actions related to wild horse and burro populations on public lands, BLM prepares an environmental assessment ("EA") to evaluate potential environmental impacts, to outline the agency's proposed course of action and reasonable alternatives, and to provide for public comment on the agency's proposal. See Friends of Animals v. Sparks, 200 F.Supp.3d 1114, 1119 (D. Mont. 2016); Fund for Animals, Inc. v. U.S. Bureau of Land Mgmt., 460 F.3d 13, 16 (D.C. Cir. 2006); 40 C.F.R. §§ 1501.4, 1508.9 (describing the purpose and form of EAs generally). If adopted, the proposed course of action is authorized in a document known as a decision record ("DR").
At issue in this case are eight HMAs, a single HA, and certain private lands encompassed within or lying adjacent to public lands. The eight HMAs under scrutiny here are known as Frisco, Four-Mile, Bible Springs, Sulphur, Choke Cherry, Muddy Creek, North Hills, and Swasey. Together, the boundaries of these HMAs encompass just shy of one million acres of public and private land. The lone HA at issue, known as Blawn Wash, covers nearly 63,000 additional acres. These arid rangelands make up large swaths of central and southern Utah and are home to a fragile and complex ecosystem that includes substantial herds of wild horses and burros, as well as numerous other species of wild animals and plants. The HMAs and HA at issue also provide forage and water for significant numbers of private livestock and therefore form an integral component of the local agricultural economy. Since the 1971 passage of the WHA and 1978 amendments thereto, BLM has been tasked with balancing these often conflicting interests. That conflict has bubbled under the surface or boiled over in many western states, including Utah, where the federal government manages a large percentage of available rangeland. The situation has grown especially severe in recent decades, as BLM has struggled to keep apace of the ever-increasing wild horse and burro populations. Currently, the number of wild horses and burros present on Utah's rangelands is nearly triple the collective AML maximum for the region. Overpopulation is similarly severe across nine other western states. (See Docket No. 107-1, at 2).
Frustrated with the state of the range and BLM's management efforts, Plaintiffs initiated this lawsuit April 30, 2014 to compel immediate removal of excess wild horses from public and private lands. (Docket Nos. 2 (original complaint), 51 (first amended complaint)). The administrative record was filed on June 12, 2015, (Docket Nos. 65, 66), and updated on November 11, 2015 and May 16, 2016, (Docket Nos. 81, 94). Plaintiffs filed an opening brief, requesting mandatory injunctive relief under 5 U.S.C. § 706(1), on August 17, 2016. (Docket No. 103). Several amicus curiae briefs were filed on behalf of Plaintiffs by various parties, including the State of Utah, the Public Lands Council, Western AgCredit ACA, and Beaver, Iron, and Emery Counties, as well as certain associated conservation districts located in central and southern Utah. (Docket Nos. 102, 105, 107, 115). Federal Defendants responded on October 28, 2016. (Docket No. 117). Defendant-Intervenors responded the same day. (Docket No. 120). Plaintiffs replied to Federal Defendants and to Defendant-Intervenors on November 21, 2016. (Docket Nos. 122, 123). Federal Defendants filed a limited surreply on January 30, 2017. (Docket No. 135). The court held oral argument on the request for mandatory injunctive relief on April 11, 2017. (Docket No. 142). The court now considers the arguments of the parties under authority granted by 5 U.S.C. §§ 702, 706, and 28 U.S.C. § 1331.
Plaintiffs bring their claim for injunctive relief under § 706(1) of the Administrative Procedure Act ("APA"), which requires a reviewing court to "compel agency action unlawfully withheld or unreasonably delayed."
Although Plaintiffs insist that BLM has both "unlawfully withheld" and "unreasonably delayed" action under the WHA, (see Docket No. 122, at 13-25), the two terms are mutually exclusive. Each applies to a distinct statutory structure and is evaluated under a distinct standard. See Forest Guardians v. Babbit, 174 F.3d 1178, 1189 (10th Cir. 1999). Consequently, in order to properly evaluate the merits of Plaintiffs' claims, the court must determine whether BLM's alleged failure to remove excess wild horses under the WHA is properly characterized as an "unlawful with[olding]" or an "unreasonabl[e] delay" of agency action under the APA. See 5 U.S.C. § 706(1).
The Tenth Circuit has articulated the distinction between action that is "unlawfully withheld" and action that is "unreasonably delayed" under § 706(1) as follows:
Forest Guardians, 174 F.3d at 1190.
Applying this standard to Sections Three and Four of the WHA, the court can find no "absolute" or "date-certain deadline"
Similarly, Section Four imposes no "absolute" or "date-certain deadline" for removal actions from private lands. See Forest Guardians, 174 F.3d at 1190. The Act requires only that BLM "arrange to have [stray] animals removed" from private lands upon notice from affected landowners. See 16 U.S.C. § 1334. Moreover, BLM has interpreted the Act to require prompt action without a precise deadline. See 43 C.F.R. § 4720.2-1 (requiring authorized BLM officers to "remove stray wild horses and burros from private land as soon as practicable" (emphasis added)).
Because neither Section Three nor Section Four impose explicit statutory deadlines that would warrant the application of the "unlawfully withheld" standard, the court will treat BLM's alleged failures to act under those sections as action "unreasonably delayed" and apply the corresponding standard.
Although the Tenth Circuit has not definitively adopted a standard by which courts may evaluate the reasonableness of agency delay under 5 U.S.C. § 706(1), it has favorably cited to the District of Columbia Circuit's so-called TRAC factor test, see Telecomms. Res. & Action Ctr. v. FCC, 750 F.2d 70 (D.C. Cir. 1984) [TRAC], which is widely accepted as a touchstone for evaluating such claims, see Qwest Comm'ns Intern., Inc. v. FCC, 398 F.3d 1222, 1238-39 (10th Cir. 2005) (citing the D.C. Circuit's TRAC jurisprudence in the context of a claim of "unreasonably delayed" agency action). The Tenth Circuit has emphasized that "a court-imposed deadline for agency action constitutes an
Id. at 1239. The court will explain and apply this standard in more detail below.
The court will now address the arguments of the parties under jurisdiction granted by 5 U.S.C. §§ 701-06 and 28 U.S.C. § 1331. First, the court must resolve two jurisdictional challenges raised by Defendant-Intervenors. Second, the court will address Plaintiffs' claims under Section Three of the WHA. Finally, the court will address Plaintiffs' claims under Section Four of the WHA.
Before proceeding to the merits of Plaintiffs' claims, the court must address two challenges to its subject matter jurisdiction raised by Defendant-Intervenors. They argue that all of Plaintiffs' claims regarding the eight HMAs and single HA at issue are either moot or unripe, and therefore this court lacks subject matter jurisdiction over the claims. The court addresses Defendant-Intervenors' mootness argument first, then their ripeness argument.
First, Defendant-Intervenors argue that any claims regarding pre-2012 determinations
In a similar vein, Defendant-Intervenors argue that Plaintiffs' claims regarding post-2012 determinations of the need for removal
As both of Defendant-Intervenors' jurisdictional challenges are unavailing, the court now turns to the merits of Plaintiffs' claims against BLM.
First, the court addresses Plaintiffs' claims under Section Three of the WHA. As noted above, Section Three imposes a statutory duty on BLM to "immediately remove excess animals from the range" when certain conditions are met. See 16 U.S.C. § 1333(b)(2). The Tenth Circuit has recently delineated the conditions that trigger this statutory duty in Wyoming v. United States Department of Interior, 839 F.3d 938 (10th Cir. 2016). In that case, the State of Wyoming sued BLM, arguing that BLM had failed to remove excess wild horses from certain HMAs within the State's boundaries, unlawfully withholding or unreasonably delaying action required by the WHA. See id. at 942 (citing 5 U.S.C. § 706(1)). The State argued that because BLM had determined that wild horse populations exceeded the upper limit of the AML established for each HMA, the statutory duty under § 1333(b)(2) was triggered, requiring BLM to "immediately remove" excess wild horses from the overpopulated HMAs. Id. at 943-44. The Tenth Circuit rejected the State's argument as "contrary to the plain language" of the WHA and held that the Act affords the BLM discretion to decide how to handle overpopulations of wild horses on public lands. Id. at 944. The court noted that the Act directs BLM to maintain inventories of wild horse populations in order "to ...
Here, as in Wyoming, it is undisputed that wild horse populations exceed the respective AMLs of each of the eight HMAs and one HA at issue. Still, the parties differ as to whether BLM has determined that removal of excess animals is necessary on certain of the HMAs, i.e., whether a mandatory duty to remove the excess animals has been triggered. Plaintiffs assert that BLM has determined that removal of excess horses is necessary on each of the eight HMAs and one HA at issue. BLM concedes that it has determined that removal is currently necessary on five of the eight HMAs and one HA, but denies that any such determination has been made for the four remaining HMAs. More specifically, BLM acknowledges that, since 2014, it has determined that removal of excess horses is necessary in the Frisco, Four Mile, Bible Springs, and Sulphur HMAs, and the Blawn Wash HA. (Docket No. 117, at 10-11). Thus, BLM agrees that it has a statutory duty to remove excess horses from these areas.
By contrast, BLM insists that it has not determined that removal of current overpopulations is necessary in the Choke Cherry, Muddy Springs, North Hills, and Swasey HMAs. BLM argues that any previous determinations regarding the necessity of removal from those HMAs are no longer operative and cannot bind the agency. Plaintiffs disagree and insist that determinations made prior to 2014 regarding the necessity of removal from the four remaining HMAs are sufficient to trigger BLM's statutory duty to "immediately remove" current overpopulations pursuant to Section Three.
The court will first address the adequacy of BLM's efforts to remove wild horses from Frisco, Four Mile, Bible Springs, and Sulphur HMAs, as well as the Blawn Wash HA, where BLM acknowledges a statutory obligation to remove under Section Three. The court will then address whether a statutory duty to remove exists in the Choke Cherry, Muddy Creek, North Hills, and Swasey HMAs and, if so, whether that duty has been adequately fulfilled.
BLM concedes that it has a current duty under Section Three of the WHA to "immediately remove" excess wild horses from the Frisco, Four Mile, Bible Springs, and Sulphur HMAs, as well as the Blawn Wash HA. Plaintiffs claim that BLM has "unreasonably delayed" removal action in these areas such that mandatory injunctive relief is warranted under 5 U.S.C. § 706(1). As explained previously, such claims are typically evaluated under the multi-factor TRAC analysis as outlined in Qwest Comm'ns, 398 F.3d at 1238-39. However, before proceeding to an application of the TRAC factors, the court must address two more fundamental issues. First, the court must define the duty imposed on BLM by Section Three of the WHA and, second, the court must decide whether BLM has in fact "delayed" execution of that duty.
Before evaluating BLM's removal efforts on the four HMAs and single HA at issue, the court must delineate the removal duty imposed by Section Three. As explained above, Section Three requires BLM to maintain current inventories of wild horse and burro populations on public lands. See 16 U.S.C. § 1333(b)(1). BLM uses these inventories to establish AMLs and to determine "whether and where an overpopulation exists" in a given area of the public lands. Id. Once BLM determines that an overpopulation in fact exists in a given area, the agency has wide discretion in how it addresses that overpopulation. See Wyoming, 839 F.3d at 944. BLM uses available data to "determine whether [AMLs] should be achieved by the removal or destruction of excess animals, or other options (such as sterilization, or natural controls on population levels)." 16 U.S.C. § 1333(b)(1). Thus, BLM may address the identified overpopulation through removal or through other methods it deems more suitable. See Wyoming, 839 F.3d at 944 ("Subsection (b)(1)'s use of the phrase `whether action should be taken to remove excess animals' quite clearly affords the BLM with discretion to decide whether or not to remove excess animals.").
However, under certain conditions, Section Three requires BLM to conclusively prioritize removal over other management activities. Specifically, when BLM identifies an overpopulation of wild horses in a given area and determines that action is necessary to remove that overpopulation, Section Three unequivocally requires that the agency address the identified overpopulation through removal. See 16 U.S.C. § 1333(b)(2). Though BLM indisputably has discretion "to determine whether action should be taken to remove excess animals" and "whether [AMLs] should be achieved by the removal or destruction of excess animals, or other options (such as sterilization, or natural controls on population levels)[,]" 16 U.S.C. § 1333(b)(1); Wyoming, 839 F.3d at 944, that discretion evaporates once BLM determines "that action is necessary to remove excess animals," 16 U.S.C. § 1333(b)(2). A determination that removal of an identified overpopulation is "necessary" indicates that BLM cannot "achieve [or] maintain a thriving natural ecological balance on the public lands" without the removal. See 16 U.S.C. § 1333(a), (b)(2). Accordingly, once that determination is made, the statute explicitly and unequivocally directs that BLM "shall immediately remove excess animals from the range so as to achieve appropriate management levels." Id. § 1333(b)(2). There is no discretion in this command; BLM must eschew other management
Section Three also provides some indication of the urgency with which BLM must accomplish necessary removals: the statute directs that BLM must "immediately remove excess animals." 16 U.S.C. § 1333(b)(2) (emphasis added). The parties in this case dispute the practical significance of this language. Plaintiffs, seeking the rapid removal of excess animals from the range, insist that this language requires removal to within established AML "without delay." (Docket No. 122, at 13 (quoting Immediate, BLACK'S LAW DICTIONARY (10th ed. 2014))). By contrast, BLM argues that the lack of specific statutory deadlines indicate that "pace and timing of [BLM's] removals are discretionary." (Docket No. 117, at 19). BLM and Defendant-Intervenors emphasize that removal is a "process" and must proceed in phases until completion. (See Docket No. 117, at 19; Docket No. 120, at 50, 58).
Evaluation of these arguments turns on the practical meaning of one particularly vexing adverb — "immediately." The term is not defined in the Act, see 16 U.S.C. § 1332, so the court turns to the plain, ordinary meaning of the word to guide interpretation, see Schindler Elevator Corp. v. U.S. ex rel. Kirk, 563 U.S. 401, 407-08, 131 S.Ct. 1885, 179 L.Ed.2d 825 (2011). As Plaintiffs assert, the plain meaning of the term suggests action that occurs "[w]ithout interval of time ... [or] without delay."
Nonetheless, as BLM is quick to explain, an overly literal interpretation of the term belies practical reality. (Docket No. 117, at 19). Put simply, the physical removal of wild animals from the open range cannot be accomplished "instantly" or "at once" — the process necessarily entails some delay. For example, BLM generally cannot gather during certain months of the year, particularly during the spring foaling season, for fear of disrupting the targeted herd's reproductive cycles or general health. Conditions on the ground — including inclement weather, an unexpectedly scattered target herd, or the failure of skittish animals to
Based on these practical realities, the court cannot interpret Section Three to require removal of excess wild animals without any intervening delay — such an interpretation would contravene the ultimate purposes of the WHA by forcing BLM to act recklessly and without regard for the continuing viability or humane treatment of creatures it is specifically tasked with preserving. See Am. Wild Horse Pres. Campaign, 847 F.3d at 1178 (explaining that the WHA was "enacted by Congress to ensure the survival" of wild horses and burros); In re Overland Park Fin. Corp., 236 F.3d 1246, 1252 n.9 (10th Cir. 2001) (citing United States v. Brown, 333 U.S. 18, 27, 68 S.Ct. 376, 92 S.Ct. 442 (1948)) ("[C]ourts will reject an interpretation of a statute that produces an absurd result."). Section Three's mandate to "immediately remove" must therefore include some discretionary space in which BLM may plan and execute safe, efficient, and effective removals consistent with the broader purposes of the WHA and in compliance with other statutory duties.
At the same time, the court cannot accept BLM's contention that the "pace and timing" of removals are entirely discretionary. (See Docket No. 117, at 19). The term "immediately" must mean something — its presence in the statute necessarily places some temporal limits on any discretion BLM has to plan and execute removal actions. The D.C. Circuit has explained that the term "immediately" indicates that Congress desired that "excess horses ... be removed expeditiously" and decided that "prompt action was needed to redress ... imbalance" in wild horse populations on public lands. Am. Horse Prot. Ass'n, Inc. v. Watt, 694 F.2d 1310, 1316-17 (D.C. Cir. 1982) (emphasis added and in original). Indeed, the statute indicates that "immediate[]" removal action is required "so as to restore a thriving natural ecological balance to the range[] and [to] protect the range from the deterioration associated with overpopulation." 16 U.S.C. § 1333(b)(2); Blake v. Babbitt, 837 F.Supp. 458, 459 (D.D.C. 1993) (citing Am. Horse Prot. Ass'n, 694 F.2d at 1317-19) (explaining that Section Three requires action, even when that action is based on incomplete knowledge of conditions on the ground, because "the endangered and rapidly deteriorating range cannot wait"). Any unnecessary delay or lack of urgency in reducing the population to within AML would contravene these purposes by allowing excess wild horses to persist, propagate, and consume an imbalance of already scarce resources. With the viability of the range and the wild horses themselves in immediate peril as a result of overpopulation,
In sum, once BLM determines that an overpopulation exists in a given area and action is necessary to remove that overpopulation, Section Three demands that BLM address the overpopulation through removal and that the agency begin and complete removal as soon as logistically possible.
With this understanding of BLM's Section Three removal duty in mind, the court turns to BLM's efforts to fulfill that duty. Again, BLM acknowledges that it has a current duty under Section Three to "immediately remove" excess wild horses from the Frisco, Four-Mile, Bible Springs, and Sulphur HMAs, as well as the Blawn Wash HA. In each area, BLM has made the necessary determinations that an overpopulation of wild horses exists and that action is necessary to remove that overpopulation. (See AR001490 (Frisco 2012 DR); AR001350 (Bible Springs Complex 2014 DR, including Bible Springs HMA, Four-Mile HMA, and Blawn Wash HA)); (Docket No. 117-1, at 42 (Sulphur 2016 DR)). To address these findings, BLM has begun implementation of "a pilot management alternative that calls for a phased-in approach to reach AML over a six to ten year period by gradually removing excess animals, implementing fertility control, and adjusting sex ratios." (See, e.g., AR001477 (explaining the plan as proposed for the Frisco HMA in 2012)). The initial removal actions contemplated by this approach are not meant to eliminate the identified overpopulation — they serve instead to reduce the number of animals present on the range to a targeted population level somewhere above the established AML. Full removal of any overpopulation would be achieved only after successive removal actions over approximately six to ten years. (See, e.g., Docket No. 117-1, at 23 (spelling
Plaintiffs argue that BLM's "phased-in" approach to removal over a six to ten year period in these areas constitutes an "unreasonabl[e] delay," see 5 U.S.C. § 706(1), of action that must be completed "immediately," see 16 U.S.C. § 1333(b)(2). In response, BLM and Defendant-Intervenors argue that BLM has not in fact delayed its ministerial duty to "immediately remove" excess animals from the range under Section Three. Instead, the defending parties suggest that BLM has wide discretion in how to implement Section Three's mandate and that the current "phased-in" approach to wild horse management fulfills BLM's statutory obligation to "immediately remove" excess animals: "Because the [WHA] imposes no specific timetable for removing horses after [BLM] has made the required removal determinations, especially when taking into account all the complex and competing factors surrounding removal actions, there has been no `delay' in this case, much less unreasonable delay." (Docket No. 117, at 19; see also Docket No. 120, at 49-51). The court must reject BLM and Defendant-Intervenors' arguments on this point.
BLM's "phased-in" approach to removal fails to fulfill the agency's Section Three duty to "immediately remove" excess animals in at least two fundamental ways. First, the "phased-in" approach prioritizes gradual removal and other management techniques over prompt removal to within AML. As explained above, Section Three unequivocally requires BLM to address overpopulations through immediate removal of excess animals once the agency makes certain triggering determinations regarding an area of the public lands. Having made the requisite determinations in the areas at issue, BLM cannot choose to address the identified overpopulation through gradual removals and the application of immunocontraceptives and adjustment of sex ratios
Second, the "phased-in" approach contemplates gradual, rather than "immediate[]" removal of excess animals. Though Section Three imposes no specific timetable for necessary removals, the statute clearly demands prompt removal and forbids unnecessary delay. BLM urges that a six-to-ten-year delay is necessary "due to limited resources [and] competing removal needs across [ten] western states," (Docket No. 117, at 19), but such broad administrative concerns cannot erase Section
In sum, the court finds that BLM's "phased-in" approach to removal as adopted in the Frisco, Four Mile, Bible Springs, and Sulphur HMAs, and the Blawn Wash HA does not fulfill its statutory obligation to "immediately remove excess animals so as to achieve appropriate management levels." 16 U.S.C § 1333(b)(2). It follows that BLM has in fact "delayed" an action it is required by law to take and that delay is subject to a reasonableness evaluation under 5 U.S.C. § 706(1).
Having established that BLM has delayed execution of its Section Three duty to "immediately remove" excess wild horses from the Bible Springs, Frisco, Four-Mile, and Sulphur HMAs and the Blawn Wash HA, the court now evaluates whether BLM has "unreasonably delayed" under 5 U.S.C. § 706(1). "Resolution of a claim of unreasonable delay is ordinarily a complicated and nuanced task requiring consideration of the particular facts and circumstances before the court." Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1100 (D.C. Cir. 2003). The Tenth Circuit has indicated that courts evaluating claims of "unreasonabl[e] delay" of agency action under § 706(1) should employ a close variation of the TRAC factors articulated by the D.C. Circuit. See Qwest Comm'ns, 398 F.3d at 1238-39. These factors are helpful to determine "whether the agency's delay is so egregious as to warrant mandamus" or mandatory injunctive relief. See TRAC, 750 F.2d at 79. As formulated by the Tenth Circuit, the pertinent factors include "(1) the extent of the delay, (2) the reasonableness of the delay in the context of the legislation authorizing agency action, (3) the consequences of the delay, ... (4) administrative
In this case, the court finds that the first three factors weigh in favor of Plaintiffs' claims of unreasonable delay, but the balance of factors ultimately weighs against such a finding.
The court will evaluate the first two TRAC factors together. The court must first "ascertain the length of time that has elapsed since the agency came under a duty to act," Cutler, 818 F.2d at 897, and then determine "the reasonableness of the delay ... in the context of the statute which authorizes the agency's action," In re Int'l Chem., 958 F.2d at 1149 (quotations omitted) (quoting Pub. Citizen Health Research Grp. v. Auchter, 702 F.2d 1150, 1158 n. 30 (D.C. Cir. 1983) (per curiam)). The latter determination "entails an examination of any legislative mandate in the statute and the degree of discretion given the agency by Congress." Cutler, 818 F.2d at 897. In other words, "where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content" for an evaluation of reasonableness. See TRAC, 750 F.2d at 80. As explained below, the court finds that these two factors weigh in favor of Plaintiffs' claims of unreasonable delay.
The extent of BLM's delay in this instance is substantial. BLM's current obligation to "immediately remove" excess horses in the Frisco, Four-Mile, Bible Springs, and Sulphur HMAs, as well as the Blawn Wash HA arose as soon as the agency identified an overpopulation in each given area and determined that action was necessary to remove that overpopulation. See Wyoming, 839 F.3d at 944. BLM made these determinations for the Frisco HMA in September 2012, (AR001477), for the Sulphur HMA in July 2014, (AR002137), and for the Four-Mile HMA, Bible Springs HMA, and Blawn Wash HA in June 2014, (AR001350).
The court next turns to the third TRAC factor and evaluates the consequences of BLM's delay. See TRAC, 750 F.2d at 80. In general, the more drastic the consequences resulting from a given delay, the less likely that such a delay will be found to be justifiable. For example, "[d]elays that might be altogether reasonable in the sphere of economic regulation are less tolerable when human lives are at stake." Auchter, 702 F.2d at 1157. An agency's delay may also produce intolerable regulatory repercussions: "[T]he court must also estimate the extent to which the delay undermines the statutory scheme, either by frustrating the statutory goal or creating a situation in which the agency is `losing its ability to effectively regulate at all.'" Envtl. Def. Fund v. U.S. Nuclear Regulatory Comm'n, 902 F.2d 785, 789 (10th Cir. 1990) (quoting Cutler, 818 F.2d at 897-98). As explained below, the court finds that this factor also weighs in favor of Plaintiffs' claims of unreasonable delay.
The consequences of BLM's delay in this instance are significant. Most crucially, the delay undermines the very purpose of Section Three's mandate, which is to "maintain a thriving ecological balance between wild horse and burro populations, wildlife, livestock, and vegetation, and to protect the range from the deterioration associated with overpopulation of wild horses and burros." Blake, 837 F.Supp. at 460 (quoting H.R. Rep. No. 1737, 95th Cong., 2d Sess., 15 (1978)); see also 16 U.S.C. § 1333(a), (b)(2). In each area at issue in this section, BLM has made a determination that the current overpopulation of wild horses is causing and will continue to cause considerable harm to rangeland resources. The horses' overconsumption of already-scarce water and forage has negative effects on neighboring species and even on the land itself — BLM documents cite severe soil erosion, destruction of delicate riparian areas, and increased competition for resources among other wild animals and livestock as predictable consequences of prolonged overpopulation. Moreover, the continued existence of excess wild horses on the range threatens the horses themselves. Dehydration or starvation among individual horses is likely inevitable
There is also a tangible human cost associated with the continued presence of
The fourth TRAC factor requires this court to evaluate the "administrative difficulties bearing on the agency's ability to resolve an issue." Qwest Comm'ns, 398 F.3d at 1239. Courts owe final agency action "considerable deference," see People for Ethical Treatment of Prop. Owners v. U.S. Fish & Wildlife Serv., 852 F.3d 990, 999 (10th Cir. 2017), and, to a certain extent, review of agency inaction is similarly circumspect. Accordingly, any court evaluating the reasonableness of agency delay "should give due consideration in the balance to `any plea of administrative error, administrative convenience, practical difficulty in carrying out a legislative mandate, or need to prioritize in the face of limited resources.'" In re Int'l Chem., 958 F.2d at 1149-50; Cutler, 818 F.2d at 898 (explaining that courts should consider "the agency's explanation, such as administrative necessity, insufficient resources, or the complexity of the task confronting the agency"). In delineating this factor, the TRAC court emphasized "the effect of expediting delayed action on agency activities of a higher or competing priority." 750 F.2d at 80, "Of course, these justifications become less persuasive as delay progresses, and must always be balanced against the potential for harm." Cutler, 818 F.2d at 898. As explained below, the court concludes that this factor weighs heavily against Plaintiffs' claims of unreasonable delay.
BLM's efforts to both successfully and sustainably manage wild horse populations pursuant to the WHA are hindered by nigh-insurmountable administrative obstacles. Among those obstacles, perhaps the greatest is the United States Congress. The WHA demands that BLM continually monitor and manage nearly 67,000 wild horses scattered across ten western states and periodically remove excess animals in the following "order and priority": First, BLM must humanely euthanize "old, sick, or lame animals," 16 U.S.C. § 1333(b)(2)(A); then BLM is to facilitate the adoption of healthy animals "for which [it] determines an adoption demand exists by qualified individuals," id. § 1333(b)(2)(B); and, finally, BLM must humanely euthanize any "additional excess
Unfortunately, adoption demand has plummeted nearly 70% in recent years, (id.), and, as a result, a staggering chunk of BLM's wild horse management budget must be allocated to permanently board more than 50,000 unadopted animals in off-range corrals and pasturelands, (see AR015213 (indicating that boarding costs accounted for nearly 60% of BLM's wild horse budget in 2012)). Over a lifetime, each unadopted horse will require approximately $50,000 for adequate care and upkeep, placing current projected costs for boarding unadopted animals in the multi-billion dollar realm. Moreover, the off-range facilities used to house these animals are currently at or nearing capacity, and suitable additional facilities are often prohibitively expensive or difficult to procure. These practical realities restrict BLM's removal efforts to approximately 3,500 wild horses per year, a number roughly equivalent to the total number of animals that "leave the system annually through adoption, sale, and natural mortality." (Docket No. 115-2, at 2). Given these administrative obstacles, BLM concedes that "removing wild horses from the range is simply not a sustainable management option." (Docket No. 117, at 17). Unlike the previous three factors, these practically overwhelming administrative difficulties weigh strongly against a finding of unreasonable delay.
Additionally, the court notes that, in certain cases, "the good faith of the agency in addressing the delay weighs against" a finding of unreasonable delay. See Liberty Fund, Inc. v. Chao, 394 F.Supp.2d 105, 119-20 (D.D.C. 2005) (citing In re Am. Fed'n of Gov't Emps., 837 F.2d 503, 507 (D.C. Cir. 1988)). There is no indication here that BLM staff are "just `twiddling their thumbs'" as to their management responsibilities. See Wyandotte Nation v. Salazar, 939 F.Supp.2d 1137, 1153 (D. Kan. 2013) (quoting Mashpee Wampanoag, 336 F.3d at 1100-01). Instead, BLM has made genuine, though inadequate, efforts to mitigate the harm caused by wild horse overpopulations and has devised what it believes is the best approach available given its limited resources. While these efforts clearly do not fulfill the statutory requirements of the WHA, they indicate that BLM has not wholly abandoned its management responsibilities. Thus, the situation here does not indicate a true "breakdown of regulatory processes." See In re Int'l Chem., 958 F.2d at 1149 (quoting Cutler, 818 F.2d at 897 n.156) (internal quotations omitted). In sum, the agency's good faith efforts to mitigate harm, though legally insufficient, also weigh against a finding of unreasonable delay.
Finally, the court turns to evaluation of "the complexity of the task envisioned by a ... remand order" in this case.
Here, Plaintiffs request that this court "enter [an] order compelling [BLM] to immediately remove ... excess wild horses" from four HMAs and one HA. (Docket No. 103, at 59). As should be obvious given the above analysis, such a seemingly simple command is in fact loaded with complexity. First, the task itself would require the mobilization of significant resources and the restructuring of long-term plans and programming already underway in each of these areas and in nine other states. As explained above, practical and administrative realities preclude BLM from removing more than approximately 3,500 wild horses across ten states in any given year. By the court's count, requiring the immediate removal of excess wild horses in the four HMAs and single HA at issue would involve the removal of well over half of BLM's yearly limit. In fact, likely more than 1,000 animals would have to be removed from the Sulphur HMA alone. (See, e.g., Docket No. 117-1, at 40-41 (indicating that the estimated wild horse population of Sulphur HMA is well over 1,000 animals and more than 383% of the established AML)). An order from this court compelling removal would force BLM to focus its limited resources to a disproportionate degree on these specific areas of Utah. Such a broad reallocation of resources would undoubtedly necessitate the wholesale reevaluation of established long-term removal plans not only in Utah, but also across nine other western states. Removal plans for other states and other HMAs would be
Further, should BLM fail to comply with the court's order (and such a scenario is likely given the practical and administrative obstacles already discussed) or if BLM simply does not comply as quickly as Plaintiffs believe is warranted, this litigation would likely devolve into protracted contempt proceedings. Such proceedings would again delve into an ultimately superficial debate about BLM's budget and require the court to nickel-and-dime the agency's nuanced resource allocations. More fundamentally, the success of a given removal operation is largely tied to mercurial conditions on the ground — inclement weather, the horses' fluctuating resistance to various baiting and trapping methods, and even the day-to-day movement of individual horses can affect the scope and outcome of a removal. The court would be forced to closely scrutinize these conditions in order to evaluate the pace and scope of BLM's efforts and, further, to appraise BLM's expert opinions on scattered horses on any given day of a removal operation, the genetic viability of a particular herd, why a certain proportion of horses cannot be removed in one roundup, the effectiveness of helicopter sweeps versus water-baiting, and so on. These are calls the court is simply not equipped to make. As explained previously, BLM has no discretion under Section Three to address identified overpopulations of wild horses that must be removed in any other way than immediate removal. See Wyoming, 839 F.3d at 944. Nevertheless, BLM retains limited discretion to decide how to achieve immediate removal both safely and effectively. An order to remove here would inject this court into that narrow gap of discretion in a manner amounting to "undue judicial interference" with BLM's management of removal operations. Cf. SUWA, 542 U.S. at 66, 124 S.Ct. 2373; San Juan Citizens All. v. Stiles, 654 F.3d 1038, 1045 (10th Cir. 2011) (quoting Utah Envtl. Cong. v. Russell, 518 F.3d 817, 824 (10th Cir. 2008)) ("The deference we give agency action `is especially strong where the challenged decisions involve technical or scientific matters within the agency's area of expertise.'").
Based on the foregoing, the court concludes that the final factor weighs heavily against a finding of unreasonable delay in this case.
The court acknowledges that Plaintiffs are justifiably frustrated with the current state of the range and the seeming inability of BLM to deal with identified overpopulations of wild horses on lands that are meant to be managed sustainably for multiple uses. The court realizes that Plaintiffs sincerely believe that BLM has inexcusably fumbled its compliance with a mandatory statutory duty. More importantly, the court acknowledges the significant economic strain placed on Plaintiffs by the continued degradation of the range. At the same time, the court cannot ignore the profound administrative and practical obstacles facing BLM as it juggles practically unworkable statutory responsibilities on a shoestring budget. Though it is a decidedly close call, the court finds that these practical realities, coupled with the inadvisability of this court injecting itself into wild horse and burro management in any significant capacity, weigh decisively against a finding of unreasonable delay or the issuance of injunctive relief in this case. Accordingly, the court holds that BLM has not "unreasonably delayed" removal action under Section Three in the Bible Springs HMA, the Four-Mile HMA, the Frisco HMA, the Sulphur HMA, or the Blawn Wash HA, see 5 U.S.C. § 706(1), and declines to compel BLM to act in these areas.
The court now turns to the Plaintiffs' claims regarding the Choke Cherry, Muddy Creek, North Hills, and Swasey HMAs. BLM asserts that it is not currently obligated by law to remove excess wild horses from these areas. While BLM "acknowledges that the horse numbers in these four areas still exceed the appropriate management levels," (Docket No. 117, at 16), the agency nonetheless insists that the duty to immediately remove excess horses has not been triggered because BLM has not made a corresponding determination that removal is necessary. See Wyoming, 839 F.3d at 944 (holding that a duty to "immediately remove" arises only after BLM determines that an overpopulation exists and that action is necessary to remove excess animals); San Francisco BayKeeper v. Whitman, 297 F.3d 877, 885 (9th Cir. 2002) ("[F]or a claim of unreasonable delay to survive, the agency must have a statutory duty in the first place."). In response, Plaintiffs assert that BLM has previously determined that excess animals must be removed from each HMA in pre-2014 gather EAs and DRs. BLM argues that these determinations do not trigger a current duty to remove because the removal actions those documents contemplated are complete.
In essence, BLM argues that where it determines that an overpopulation exists on a given HMA, decides that a removal action is necessary to achieve AML, and subsequently removes the excess horses to reach that end, its obligation to remove under § 1333(b)(2) is satisfied. The court must agree with this general principle. A contrary approach to BLM's duty under § 1333(b)(2) would contravene the plain language of the statute and the Tenth Circuit's interpretation of that language in Wyoming. Section Three specifically requires BLM to make determinations based on "current" inventories of wild horse populations and other "information currently available" to BLM, indicating that the WHA contemplates recurring determinations of both overpopulation and the necessity of removal in order to achieve AML. See 16 U.S.C. § 1333(b)(2) (emphases added). Further, the statute affords BLM significant discretion to decide how to address an overpopulation once it is discovered. See Wyoming, 839 F.3d at 944 (finding that the Act "quite clearly affords the
Applying this general principle to the facts of this case, the court finds that no current duty to remove exists as to the Choke Cherry, Muddy Creek, or North Hills HMAs, but concludes that BLM is still obligated to remove excess animals from the Swasey HMA. Each individual HMA is addressed below.
As to the Choke Cherry HMA, Plaintiffs argue that BLM has not yet fulfilled its duty to immediately remove an overpopulation slated for removal in a 2010 gather EA and DR and, as a result, BLM is currently obligated to remove an existing overpopulation on the HMA. The court disagrees.
Based on an aerial population survey conducted in late 2009, BLM determined that an overpopulation of wild horses existed in the Eagle Complex, which included the Choke Cherry HMA and two other adjacent HMAs. BLM estimated that the population of wild horses on the Choke Cherry HMA was somewhere near seventy-nine head,
Putting the removal plan into motion in early 2011, BLM conducted a pre-gather population survey which estimated the population on the three HMAs at 995 head. (AR016228). Conducted between January 4 and 19, 2011, the gather resulted in the removal of 817 horses from the three HMAs, including fifty-seven from the Choke Cherry HMA. (AR016228, AR016231). BLM estimated that the remaining wild horse population on the Choke Cherry HMA was at the established AML of thirty head. (AR010664). The total post-removal herd size within the three HMAs was estimated at 178 head, a number within the overall AML for the Eagle Complex. (AR016228, AR016232).
Plaintiffs argue that the 2011 removal action did not fulfill BLM's duty to remove wild horses and that the agency is still obligated to remove excess wild horses from the Choke Cherry HMA. Citing a subsequent BLM report, they assert that "only 49 [horses] were removed" from the HMA in 2011, not the fifty-seven reported by the agency. (Docket No. 122, at 30 (citing AR010644)). This argument is unavailing. Whether BLM actually removed forty-nine or fifty-seven horses from the Choke Cherry HMA is ultimately irrelevant,
Because the documented overpopulation on the Choke Cherry HMA was fully addressed by the removal action in 2011, Plaintiffs cannot now rely on the determinations made prior to the completed action to support their claim that BLM is currently obligated to remove horses from the HMA. Consequently, Plaintiffs have failed to establish that BLM has made an operative determination of a need to remove the current overpopulation of wild horses on the Choke Cherry HMA. Until such a determination is made, BLM has no current duty to remove wild horses from the Choke Cherry HMA under Section Three. See Wyoming, 839 F.3d at 944.
Plaintiffs likewise argue that BLM has not fulfilled its duty to immediately remove an overpopulation slated for removal from the Muddy Creek HMA in 2009 and the agency is therefore obligated to remove the current overpopulation on the HMA. Again, the court disagrees.
After population surveys conducted in March 2008 and June 2009, BLM found that the wild horse population on the Muddy Creek HMA was likely between 188 and 194 head — well in excess of the established AML maximum of 125 head. To address this overpopulation and to "move resources towards a thriving ecological balance [in] the area," BLM completed an EA that advocated the gather of 130 wild horses from the Muddy Creek HMA, the permanent removal of 100 of the gathered horses, and the return of remaining gathered mares to the range after treatment with immunocontraceptives. (AR011015, AR011018-AR011019). In July 2009, BLM issued a DR that adopted the EA's proposed gather plan and authorized the permanent removal of 100 excess wild horses. (AR011006). Between July 12 and 14, 2009, BLM put the gather plan into effect, gathering a total of eighty-seven horses and permanently removing them from the HMA. (AR011123-AR011124).
Plaintiffs insist that the findings contained in the 2009 EA and DR triggered a duty to "immediately remove" excess wild horses under Section Three of the WHA and that the July 2009 gather of eighty-seven horses did not fulfill that duty. Plaintiffs seem to argue that because BLM only removed eighty-seven of the 100 wild horses it was authorized to remove, the removal is incomplete and BLM is still obligated to remove the overpopulation that currently exists on the Muddy Creek HMA. (See Docket No. 122, at 29). This argument ignores the ultimate purpose of the July 2009 gather, which was "to achieve and maintain wild horse [AML]" on the Muddy Creek HMA, not simply to remove 100 horses. (AR011007). In its final report on the July 2009 gather, BLM determined that approximately seventy-five horses remained on the HMA after the gather was complete, a total that accorded with the low-end of the established AML. This result fulfilled the purpose of the gather and satisfied BLM's statutory duty to immediately remove excess animals from the HMA "so as to achieve appropriate management levels." See 16 U.S.C. § 1333(b)(2).
Although BLM acknowledges that an overpopulation of wild horses currently exists on the Muddy Creek HMA, the findings contained in the 2009 EA and DR are no longer operative and cannot compel the agency to act to remove that overpopulation. In sum, Plaintiffs have failed to establish that a current duty to immediately remove wild horses under Section Three exists for the Muddy Creek HMA.
Plaintiffs also argue that BLM has failed to fulfill its duty to immediately remove an
Based on an aerial survey conducted in January 2010, BLM determined that the population of wild horses on the North Hills HMA was approximately 250 head, far surpassing the established AML upper limit of sixty head. (AR001654). BLM determined that the removal of 210 horses was necessary "to achieve and maintain a population size within the established AML, protect rangeland resources from further deterioration associated with the current overpopulation, and restore a thriving natural ecological balance and multiple use relationship on public lands consistent with the provisions" of Section Three. (AR001654-AR001655). The EA also provided that an additional survey conducted closer to the proposed gather would be needed "to more accurately determine the population of wild horses" on the HMA and to "adjust the number of excess wild horses that would be gather[ed], removed, and treated with population controls in order to reach the lower AML." (AR001660).
In November 2010, BLM issued a DR approving the proposed gather and removal of 210 wild horses from the HMA. (AR001743-AR001746). Shortly thereafter, BLM conducted another aerial survey and concluded that the actual population of the HMA was approximately 137 head. (AR003205). The BLM gathered and permanently removed ninety-seven of those horses from the range between December 2 and 3, 2010. (AR003205-AR003206). This removal left the post-gather population on the HMA at approximately forty horses, (AR003205), matching the low end of the HMA's established AML, (AR001743).
Plaintiffs again insist that this gather and removal was insufficient to fulfill BLM's duty to "immediately remove" excess animals under Section Three of the WHA because BLM failed to remove the 210 animals outlined in its proposal. (Docket No. 122, at 28-29). Again, this argument ignores the actual purpose of the removal action, which was to bring the wild horse population within the established AML, not simply to remove 210 animals. (See AR001654-AR001655). The argument also fails to account for the actual conditions on the ground in the HMA at the time of the 2010 gather, i.e., that the actual population of wild horses was significantly smaller than previous surveys had indicated. Directly before the gather, BLM determined that the original estimated population of 250 head was no longer accurate and that the actual population was closer to 137 head. (AR003205). Thus, in order to bring the current population on the HMA to the lower end of the established AML, BLM needed to remove only ninety-seven animals, not the 210 originally contemplated by the EA and DR. The removal of ninety-seven horses achieved the stated objective of the gather and obviated any duty to remove under Section Three.
Plaintiffs also argue that the 2010 EA and DR committed BLM to conduct additional removals in 2012 and 2013, which did not occur. (Docket No. 122, at 28-29). This argument is also unavailing. While the EA contemplated additional follow-up gathers and removals, BLM indicated that these actions would only take place if the stated objectives of the proposed gather and removal were not promptly achieved:
In sum, the overpopulation identified in the 2010 EA and DR was fully addressed by December 2010 removal operation. Thus, Plaintiffs have failed to establish that BLM has determined that removal of the current overpopulation on the North Hills HMA is necessary. Until BLM determines that removal of excess horses on the North Hills HMA is currently necessary, Section Three does not obligate BLM to make any removals there. See Wyoming, 839 F.3d at 944.
Finally, Plaintiffs argue that BLM is currently obligated to remove excess wild horses from the Swasey HMA. They assert that BLM determined both that an overpopulation existed on that HMA and that action to remove excess animals was necessary in a 2012 gather EA, but that BLM has thus far failed to fulfill the statutory duty triggered by those determinations. On this count, the court must agree.
Based on an aerial survey conducted in 2011, BLM estimated the population of the Swasey HMA was approximately 350 head, well beyond the established AML upper limit of 100 head. (AR011479, AR011491). BLM prepared an EA in November 2012 that determined that removal of these excess horses was necessary "in order to achieve and maintain a population size within the established AML, protect rangeland resources from further deterioration associated with the current overpopulation, and restore a thriving natural ecological balance and multiple use relationship on public lands in the area consistent with" Section Three of the WHA. (AR011480). BLM acknowledged that "250 excess wild horses exist within the HMA and need to be removed." (AR011479). Despite these specific determinations, BLM proposed and approved the removal of only 162 wild horses from the HMA, leaving a post-removal population of 188 head — a number still well above the established AML upper limit of 100 head. (AR011491 (EA proposal), AR016233 (DR approval)). Neither the EA nor the DR proffer any explanation for the inconsistency between BLM's findings and BLM's approved plan, and neither document appears to provide for further removals.
After execution of the planned gather in February 2013, BLM reported that only 160 horses — and not the identified excess of 250 — were actually removed from the Swasey HMA pursuant to the removal plan. (AR016243). Subsequent population estimates suggested that the population on the range was left at approximately 160 head after the 2013 removal, a number in excess of the established AML. (AR010668). The wild horse population increased to 180 head by 2014, (AR010670), and again to 216 head by 2015, (AR010672). To date, the only subsequent removal from the Swasey HMA appears to have occurred in May 2014, where one horse was removed. (AR010645).
BLM asserts that the removal of 160 wild horses from the Swasey HMA in February 2013 fulfilled its duty to "immediately
Had BLM explained that an overpopulation of approximately 250 horses existed within the HMA, then determined that removal of only 160 or so horses was necessary "to achieve and maintain a population size within the established AML," (see AR011480), that would be fully within the agency's statutory discretion to "determine whether appropriate management levels should be achieved by the removal or destruction of excess animals, or other options (such as sterilization, or natural controls on population levels)," see 16 U.S.C. § 1333(b)(1); Wyoming, 839 F.3d at 944 (explaining that Section Three "quite clearly affords the BLM with discretion to decide whether or not to remove excess animals"). But that is not the determination that BLM made here. Instead, BLM determined that all animals in excess of the upper limit of the established AML for the Swasey HMA "need[ed] to be removed," (AR011479), but made only partial provision for their removal. The court can find no clear explanation in the record for BLM's decision to remove less than the number of excess wild horses that the agency determined should be removed from the HMA in order to achieve AML. Because BLM failed to fully address its own determination that horses above the upper limit of the AML must be removed, the court finds that BLM did not fulfill its statutory duty under Section Three to "immediately remove excess animals from the range so as to achieve appropriate management levels" on the Swasey HMA. See 16 U.S.C. § 1333(b)(2). And, since BLM has not taken any further steps to address the continuing overpopulation on the Swasey HMA, a duty to immediately remove excess wild horses is still operative and binds the agency to act.
Unlike the other three HMAs discussed in this section, Plaintiffs have established that BLM has a current duty to remove excess horses from Swasey HMA and have properly identified a "discrete action that
Finally, the court addresses Plaintiffs' claims under Section Four of the WHA. Section Four provides for the removal of wild horses and burros that stray onto private land: "If wild free-roaming horses or burros stray from public lands onto privately owned land, the owners of such land may inform the nearest Federal marshall or agent of the Secretary, who shall arrange to have the animals removed." 16 U.S.C. § 1334. Associated regulations require private landowners to submit written notification of wild horses on their land to BLM representatives. 43 C.F.R. § 4720.2-1. The notification must include a count of the animals present on the property, the date the animals were sighted, a legal description of the property, and "any special conditions that should be considered in the gathering plan." Id. Once the written request has been proffered to BLM, an agency representative "shall remove stray wild horses and burros from [the] private lands as soon as practicable." Id.
Here, Plaintiffs argue that BLM has not adequately responded to their written requests to remove wild horses that have strayed onto their lands pursuant to Section Four. Plaintiffs assert that BLM has thus far responded to their written requests for removal by attempting to coax stray horses off the private lands and back onto public land through opened gates, (Docket No. 103, at 58), and by herding stray horses back onto public lands with helicopter sweeps, (Docket No. 122, at 34-35). Plaintiffs insist that this does not fulfill BLM's ministerial duty to "arrange to have the animals removed" under Section Four. Instead, "Plaintiffs contend that the `duty' under Section [Four] is to `remove' [the animals] from private land and not merely to `move' [the animals] off private land onto the adjacent HMA." (Docket No. 122, at 34). Plaintiffs seem to suggest that Section Four requires BLM to prevent stray horses from ever returning to private lands once removed. (See Docket No. 103, at 58-59).
The court can find no support for Plaintiff's interpretation.
Insofar as Plaintiffs argue that BLM has unreasonably delayed in fulfilling its ministerial duty to remove horses from private land, (Docket No. 103, at 59), they have failed to support that argument with evidence in the record. Plaintiffs have not pointed to any tangible delay, let alone unreasonable delay, in the BLM's response to the requests for removal of wild horses from private lands.
While the court is sensitive to Plaintiff's obvious frustration with the manner and speed of BLM's response to their requests for removal, the court notes that Section Four does not prescribe any particular method or timeframe for BLM's removal efforts from private land. See 16 U.S.C. § 1334. And although relevant regulations require the BLM to respond to landowners' requests for removal "as soon as practicable," see 43 C.F.R. § 4720.2-1, the lack of specific evidence in the record regarding the current status of the relevant requests precludes the proper evaluation of any delay. The court declines to issue a generalized order that does nothing more than admonish BLM to obey the law. Cf. SUWA, 542 U.S. at 66-67, 124 S.Ct. 2373 (cautioning against the issuance of "general orders compelling compliance with broad statutory mandates"); Midland Pizza, LLC v. Southwestern Bell Tel. Co., 277 F.R.D. 637, 640-41 (D. Kan. 2011) ("An injunction simply requiring defendant to obey the law ... is too vague to satisfy Rule 65.").
The court concludes that Plaintiffs' demand for mandatory injunctive relief under the APA, 5 U.S.C. § 706(1), must be
As this denial resolves the administrative review before the court, the above-captioned action is
The clerk of court is further
IT IS SO ORDERED.
Additionally, the court notes that the Tenth Circuit typically refers to the remedy provided by § 706(1) of the APA as a "mandatory injunction" to distinguish it from a writ of mandamus. See, e.g., Estate of Smith v. Heckler, 747 F.2d 583, 591 (10th Cir. 1984). However, as noted above, "the mandatory injunction [available under the APA] is essentially in the nature of mandamus relief." Mt. Emmons Mining Co., 117 F.3d at 1170; see also Norton v. So. Utah Wilderness All., 542 U.S. 55, 63-64, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004) (explaining that § 706(1) "carried forward the traditional practice prior to its practice, when judicial review was achieved through use of ... prerogative writs — principally writs of mandamus under the All Writs Act...."). Indeed, the unlawful withholding or unreasonable delay of official action is evaluated under essentially the same standard whether a plaintiff seeks a writ of mandamus under the Mandamus Act or mandatory injunctive relief under the APA. Yu v. Brown, 36 F.Supp.2d 922, 928-29 (D.N.M. 1999) ("[I]n evaluation claims of unreasonable agency delay which seek either mandamus or a mandatory injunction under the APA, or both, the Tenth Circuit applies the same principles and standards."). As a result, certain cases cited by the court in this opinion dealing with unreasonable delay of agency action use the term "mandamus" and refer to the issuance of mandamus. As the analyses for mandamus relief and mandatory injunctive relief under the APA are essentially the same, the court has left the term in place.
Here, the submitted extra-record materials establish the current state of the range, BLM's conduct since the beginning of litigation, as well as equitable factors regarding the consequence of delayed removal, and are therefore critical to the court's determination of whether mandatory injunctive relief should issue in this case. Thus, the reasons for considering extra-record materials in this case are plainly analogous to many of the recognized exceptions to the usual restriction to the administrative record. Cf. Am. Mining Congress, 772 F.2d at 626 (listing possible exceptions, including "the agency action is not adequately explained and cannot be reviewed properly without considering the cited materials," "the case is so complex and the record so unclear that the reviewing court needs more evidence to enable it to understand the issues," and "evidence coming into existence after the agency acted demonstrates that the actions were right or wrong"). For these reasons, and because there has been only scant objection to the court's use of these materials, the court considers the cited extra-record materials for purposes of this decision. See Friends of the Clearwater, 222 F.3d at 560; Am. Littoral Soc'y v. U.S. EPA Region, 199 F.Supp.2d 217, 228 (D.N.J. 2002).
Defendant-Intervenors further suggest that Plaintiffs' grazing access is unfairly subsidized by taxpayers, the implication being that any hindrance to that access is therefore less egregious. (Docket No. 120, at 17-18). Regardless of what Plaintiffs pay for the right, they are indisputably entitled by law to graze their animals on these lands. Thus, any hindrance to their grazing access is still potentially a hindrance to a legal right and a tangible harm. More to the point, it cannot be seriously argued that access to public lands for grazing is somehow negligible in the grand scheme of Plaintiffs' economic fortunes. In fact, it is clear from the record that such access is very likely critical to the livelihood of many, if not all, individual Plaintiffs. This is more than enough to warrant careful review of the consequences of BLM's failure to remove excess wild horses from the areas at issue.
As to Forest Guardians, the court believes Plaintiffs and amici misunderstand the import of that case. Under Forest Guardians, this court may not refuse to compel mandatory agency action once it has determined that the action is either "unlawfully withheld or unreasonably delayed" under 5 U.S.C. § 706(1) — even where an agency pleads inadequate resources to complete the compelled action. Forest Guardians, 174 F.3d at 1190-92. However, before such a duty to compel arises, this court must first decide that the agency action has indeed been either "unlawfully withheld or unreasonably delayed" under § 706(1). See id. at 1189 & 1189 n.14 (explaining "that if the Secretary unlawfully withheld agency action or unreasonably delayed it ..., we must compel the Secretary to perform the mandatory duties required by the ESA" (emphasis added)). Indeed, this court's evaluation of whether the agency's delay is in fact unreasonable requires evaluation of agency resources and other administrative limitations. See Qwest Comm'ns, 398 F.3d at 1239 (indicating that courts evaluating the reasonableness of agency delay under § 706(1) should consider "administrative difficulties bearing on the agency's ability to resolve an issue").
In any event, SITLA, the owner of the state lands in question, has already asserted its rights under Section Four and a lawsuit regarding its claims was recently dismissed pursuant to a settlement agreement. Plaintiffs have not pointed to any injury beyond that already addressed in that case and have therefore failed to demonstrate that injunctive relief is necessary. Moreover, Plaintiffs cannot rely on any purported delay in removal from SITLA lands to buttress their own claim for injunctive relief under Section Four.
