De 17-1 - Memo in Support of Petitioners Motion, 8.8.14

8/12/2019 De 17-1 - Memo in Support of Petitioners Motion, 8.8.14

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Timothy C. Kingston

Law Office of Tim Kingston LLC408 West 23rdStreet, Suite 1

Cheyenne, WY 82001-3519

TEL: (307) 638-8885 / FAX: (307) 637-4850

[email protected]

Michelle D. Sinnott (VA Bar No. 85563, admittedpro hac vice)

Caitlin T. Zittkowski (CA Bar No. 290108, admittedpro hac vice)

William S. Eubanks II (D.C. Bar No. 987036, admittedpro hac vice)

Meyer Glitzenstein & Crystal

1601 Connecticut Ave, NW, Suite 700

Washington DC, 20009

TEL: (202) 588-5206 / FAX: (202) 588-5049

[email protected]@meyerglitz.com

[email protected]

Counsel for Petitioners

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF WYOMING

AMERICAN WILD HORSE )PRESERVATION CAMPAIGN, )

et al., )Petitioners )

)

v. ) Civ. No. 14-cv-152-J

)

)SALLY JEWELL, et al., )

)

Respondents. )

MEMORANDUM IN SUPPORT OF PETITIONERS MOTION FOR A TEMPORARY

RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION

Case 2:14-cv-00152-ABJ Document 17-1 Filed 08/08/14 Page 1 of 31


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TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITES ........................................................................................................... ii

GLOSSARY ................................................................................................................................... v

INTRODUCTION .......................................................................................................................... 1

STATUTORY AND REGULATORY FRAMEWORK ................................................................ 2

A. The Wild Free-Roaming Horses and Burros Act ....................................................... 2

B. The National Environmental Policy Act .................................................................... 5

FACTUAL BACKGROUND ......................................................................................................... 6

A. The Adobe Town, Salt Wells Creek, and Great Divide Basin HMAs ....................... 6

B. TheRSGALitigation and the Resulting 2013 Consent Decree Between RSGA

and BLM .................................................................................................................... 7

C. BLMs Implementation of the RSGA Consent Decree ............................................. 9

ARGUMENT ................................................................................................................................ 13

I.

PETITIONERS ARE LIKELY TO SUCCEED ON THE MERITS ................................ 14

A. BLM Violated NEPA by Authorizing the Permanent Removal of Wild Horsesfrom the Range without Conducting Any Environmental Analysis. ....................... 14

B. BLM Violated the WHA By Authorizing the Removal of Non-Excess Wild

Horses and Reducing Wild Horse Populations to Below Low AML. ..................... 18

II. PETITIONERS WILL SUFFER IRREPARABLE HARM ABSENT EMERGENCY

RELIEF ............................................................................................................................. 20

III. THE BALANCE OF EQUITES AND PUBLIC INTEREST WEIGH IN FAVOR

OF AN INJUNCTION TO MAINTAIN THE STATUS QUO ........................................ 23

CONCLUSION ............................................................................................................................. 25



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TABLE OF AUTHORITIES

CASES PAGE

Airport Neighbors Alliance, Inc. v. United States,

90 F.3d 426 (10th Cir. 1996) .................................................................................................... 15

Am. Horse Prot. Ass'n v. Watt,679 F.2d 150 (9th Cir. 1982) .................................................................................................... 23

Amoco Prod. Co. v. Vill. of Gambell,

480 U.S. 531 (1987) ............................................................................................................ 20, 23

Balt. Gas & Elec. Co. v. Natural Res. Def. Council,

462 U.S. 87 (1983) .................................................................................................................... 14

Brady Campaign to Prevent Gun Violence v. Salazar,612 F. Supp. 2d 1 (D.D.C. 2009) ............................................................................ 20, 21, 22, 24

Catron Cnty. Bd. of Comm'rs v. U.S. Fish & Wildlife Serv.,75 F.3d 1429 (10th Cir. 1996) .................................................................................................. 20

Citizens for Better Forestry v. U.S. Dep't of Agric.,341 F.3d 961 (9th Cir. 2003) .................................................................................................... 17

Cloud Found. v. Salazar,738 F. Supp. 2d 35 (D.D.C. 2010) ...................................................................................... 16, 23

Colo. Envtl. Coal. v. Office of Legacy Mgmt.,

819 F. Supp. 2d 1193 (D. Colo. 2011) ...................................................................................... 20

Colo. Wild Horse and Burro Coal.v. Salazar,639 F. Supp. 2d 87, 95 (D.D.C. 2009) ..................................................................................... 18

Custer Cnty. Action Ass'n. v. Garvey,256 F.3d 1024 (10th Cir. 2001) ................................................................................................ 14

Davis v. Mineta,302 F.3d 1104 (10th Cir. 2002) ................................................................................................ 14

Fund for Animals v. Clark,

27 F. Supp. 2d 8 (D.D.C. 1998) ................................................................................................ 24



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Fund for Animals v. BLM,

460 F.3d 13 (D.C. Cir. 2006) .................................................................................................... 16

Greater Yellowstone Coal. v. Flowers,

321 F.3d 1250 (10th Cir. 2003) .......................................................................................... 14, 20

In Def. of Animals v. Salazar,

713 F. Supp. 2d 20 (D.D.C. 2010) ............................................................................................ 18

In Def. of Animals v. U.S. Dep't of Interior,

751 F.3d 1054 (9th Cir. 2014) .................................................................................................. 19

In Def. of Animals v. U.S. Dep't of Interior,909 F. Supp. 2d 1178 (E.D. Cal. 2012) ...................................................................................... 4

Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mutual Auto Ins. Co.,

463 U.S. 29 (1983) .................................................................................................................... 16

Patriot, Inc. v. U.S. Dep't of Housing and Urban Dev.,963 F. Supp. 1 (D.D.C. 1997) ................................................................................................... 24

Rock Springs Grazing Ass'n v. Salazar,935 F. Supp. 2d 1179 (D. Wyo. 2013) ............................................................................ 9, 10, 12

RoDa Drilling Co. v. Siegal,552 F.3d 1203 (10th Cir. 2009) ................................................................................................ 23

Winter v. Natural Res. Def. Council,

555 U.S. 7 (2008) ................................................................................................................ 13, 20

STATUTES

5 U.S.C. 706(2)(A), (D) ........................................................................................................... 14

16 U.S.C. 1331 ................................................................................................................... 1, 2, 24

16 U.S.C. 1332(f) ......................................................................................................................... 4

16 U.S.C. 1333 ............................................................................................... 1, 2, 3, 4, 18, 19, 20

16 U.S.C. 1334 ......................................................................................................................... 1, 5

16 U.S.C. 1340 ............................................................................................................................. 1

42 U.S.C. 4321-4370f ................................................................................................................ 1



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42 U.S.C. 4332(C) ................................................................................................................. 5, 14

43 U.S.C. 1701-1787 ................................................................................................................. 3

REGULATIONS

40 C.F.R. 1500.1-.3 ............................................................................................................. 5, 17

40 C.F.R. 1501.4(b) ............................................................................................................... 5, 14

40 C.F.R. 1508.27 .................................................................................................................. 5, 14

43 C.F.R. 1601.0-2 ....................................................................................................................... 3

43 C.F.R. 4700.0-5(d) .................................................................................................................. 2

43 C.F.R. 4710.1-.3-1 ............................................................................................................ 2, 3

43 C.F.R. 4720.1-.2-1 ............................................................................................................ 5, 18



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GLOSSARY

AML Appropriate Management Level

APA Administrative Procedure Act

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 Resources Management Plan

RSGA Rock Springs Grazing Association

WHA Wild Free-Roaming Horses and Burros Act



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INTRODUCTION

The Wyoming Checkerboard is a unique pattern of land ownership consisting of an

alternating patchwork of both private andpublic land. The Bureau of Land Management

(BLM) has the difficult task of managing wild horse populations within and near these

Checkerboard lands. No matter how complex BLMs task of managing this unique land pattern

may be, it does notexcuse BLM from its statutory obligations under the Wild Free-Roaming

Horses and Burros Act (WHA), 16 U.S.C. 1331-1340, and the National Environmental

Policy Act (NEPA), 42 U.S.C. 4321-4370f.

On July 18, 2014, BLM made the unprecedented decision under Section 4 of the WHA to

authorize the permanent removal of an estimated 806 wild horses from the Checkerboard lands

within the Adobe Town, Salt Wells Creek, and Great Divide Basin herd management areas

(HMAs). Section 4 of the WHA grants BLM the limited authority to remove horses from

privateland and transfer those horses back onto the public lands from which they strayed. See

16 U.S.C. 1334. BLMs decision reaches far beyond this limited authority, as at least half of

the Checkerboard area is comprised ofpubliclands.

Nothing in Section 4 of the WHA authorizes BLM to remove any wild horses from

public lands, and certainly does not authorize thepermanentremoval of horses from the range.

Only Section 3 of the WHA grants BLM the authority to permanently remove wild horses from

public lands. Even then, BLM may only exercise that limited authority after the agency: (1)

determines that excess wild horses exist in a given HMA, 16 U.S.C. 1333; (2) determines

that the removal of those excess horses is necessary to achieve the appropriate management

level (AML) for that HMA, id.; and (3) complies with NEPAs requirements by preparing an

Environmental Impact Statement (EIS) or at least an Environmental Assessment (EA).



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BLM has run roughshod over all of these legal obligations. BLMs reliance on Section 4

of the WHA to authorize the permanent removal of wild horses from the range patently

disregards the facts on the ground. BLM also brazenly ignored its duties under NEPA, including

by entirely failing to engage the public in the decision-making process for an action that will

irrefutably result in significant environmental impacts. In addition, BLM did not even purport to

make the statutorily required excess determination, nor attempt to ensure that wild horse

populations are maintained within governing AMLs on the public lands, as required by the

WHA. For these reasons, BLMs decision sets a dangerous and legally untenable precedent for

the management of federally protected wild horses, which cannot pass muster when viewed

against the congressional dictates of the WHA and NEPA.

STATUTORY AND REGULATORY FRAMEWORK

A. The Wild Free-Roaming Horses and Burros Act

Congress enacted the WHA in 1971 out of concern that wild horses were quickly

disappearing from the American scene. 16 U.S.C. 1331. As a result, Congress sought to

guarantee that wild free-roaming horses and burros shall be protectedfrom capture, branding,

harassment, [and] death, and be considered in the area where presently found, as an integral

part of the natural system of the public lands.Id. To implement that mandate, Congress

declared that the Department of Interior, through BLM, shall manage wild free-roaming horses

and burros as components of the public lands, and provided that [a]ll management activities

shall be at the minimal feasible level. 16 U.S.C. 1333(a) (emphasis added).

BLM manages wild horses on public lands within HMAs. An HMA is established for

the maintenance of wild horse and burro herds, 43 C.F.R. 4710.3-1, based on the geographic

areas that were used by these animals in 1971 when the WHA was enacted. See 43 C.F.R.



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4700.0-5(d). BLM designates HMAs in resource management plans (RMPs), which are

established through a land-use planning process conducted pursuant to the Federal Land Policy

and Management Act (FLPMA), 43 U.S.C. 1701-1787. FLPMAs implementing

regulations require BLM to maintain RMPs that are designed to guide and control future

management actions on the public lands. 43 C.F.R. 1601.0-2. Modifications to HMAs,

including alterations to an HMAs boundaries, may only be adopted through this land-use

planning process, which requires extensive public notice and comment. See43 C.F.R. 4710.1;

(BLM, Wild Horses and Burros Management Handbook H-4700-1, Rel. 4-116 at 7-8 (June 2010)

(BLM Handbook) (Exhibit A) (decisions to designate or modify an HMA must be made

through a [land use plan] amendment, revision or new RMP).

The WHA requires BLM to manage wild horses in a manner that is designed to achieve

and maintain a thriving natural ecological balance on the public lands. 16 U.S.C. 1333(a). To

do so, for each HMA, BLM must: (1) maintain a current inventory of wild horses in the

management area, (2) determine [the] appropriate management level of wild horses that the

HMA can sustain (i.e., the AML), and (3) determine the method of achieving the designated

AML and managing horses within it. 16 U.S.C. 1333(b)(1); 43 C.F.R. 4710.2, 4710.3-1.

An AML is expressed as a population range within which [wild horses] can be managed for the

long term in a given HMA without resulting in rangeland damage. See BLM Handbook at 17

(Ex. A). The upper limit of the AML is the maximum number of wild horses within a given

HMA that results in a [thriving natural ecological balance] and avoids a deterioration of the

range. Id. The lower limit of the population range is established at a number that allows the

population to grow (at the annual population growth rate) to the upper limit over a 4-5 year

period, without any interim gathers. Id. BLM establishes an AML for each HMA when



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developing the applicable RMP, which involves an extensive planning process that requires

public notice and comment, as well as compliance with NEPA. BLM Handbook at 18 (Ex. A);

see alsoIn Def. of Animals v. U.S. Dept. of Interior, 909 F. Supp. 2d 1178, 1192 (E.D. Cal.

2012) (AMLs are determined th[r]ough revisions to the applicable [RMP].), affd, 751 F.3d

1054 (9th Cir. 2014).

Section 3 of the WHA allows BLM to manage wild horses by removing excess animals

from the public lands, but only after BLM determines that: (1) an overpopulation [of wild

horses] exists on a given area of the public lands, and (2) action is necessary to remove excess

animals. 16 U.S.C. 1333(b)(2) (emphasis added). An excess wild horse is one that must be

removed from an area in order to preserve and maintain a thriving natural ecological balance and

multiple-use relationship in that area. 16 U.S.C. 1332(f). Once BLM makes an excess

determination, it may remove only those excess animals from the range so as to achieve

appropriate management levels. 16 U.S.C. 1333(b)(2). According to BLMs manual, [w]ild

horses or burros should generally not be removed below the AML lower limit. BLM, Manual

4720 Removal,Rel. 4-113 at 4720.2.21(B) (June 7, 2010) (BLM Manual) (Exhibit B); BLM

Handbook (Ex. A) at 17 (wild horse removals should be conducted to maintain population size

within AML). Removal of wild horses below low AML may be warranted only in emergency

situations based on limited forage, water or other circumstances. BLM Manual at 4720.2.21-.22

(Ex. B). Before taking action to remove wild horses below AML, BLM must conduct an

adequate NEPA analysis subject to public participation and provide a compelling [r]ationale to

justify a reduction below the AML lower limit. Id. at 4720.2.22(B).

Section 4 of the WHA provides BLM with the very limited authority to remove wild

horses that stray from public lands onto privately owned land, when the owners of such land



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. . . inform the nearest Federal marshall or [BLM agent]. 16 U.S.C. 1334. This very narrow

authority is triggered only by a written request from the private landowner, 43 C.F.R.

4720.2-1, at which point BLM must arrange to have the animals removed. 16 U.S.C. 1334.

This provision only contemplates BLM removing wild horses from privately owned lands and

transferring them back to the public lands from which they stray[ed]. 16 U.S.C. 1334.

B. The National Environmental Policy Act

NEPA is the nations basic national charter for the protection of the environment, 40

C.F.R. 1500.1, and is binding on all Federal agencies. 40 C.F.R. 1500.3. NEPA requires

all agencies to prepare an EIS for major federal actions that may significantly affect the

environment. 42 U.S.C 4332(C); 40 C.F.R. 1508.27. An agency must generally prepare an

Environmental Assessment (EA) to determine whether the environmental effects of its

proposed action are significant, thus requiring the preparation of an EIS. 40 C.F.R.

1501.4(b). When an agency determines that an EIS is not required, it issues its EA along with a

Finding of No Significant Impact (FONSI), which must explain why the agencys chosen

action will not have a significant effect on the environment. Id. 1508.13.

In rare circumstances, an agency may categorically exclude certain activities from the

requirements of NEPA. Id. 1508.4. A categorical exclusion is defined as a category of

actions which do not individually or cumulatively have a significant effect on the human

environment and which have been found to have no such effect. Id. In the Department of

Interior manual governing the agencys NEPA procedures, there is a categorical exclusion for the

[r]emoval of wild horses or burros fromprivate landsat the request of the landowner. Dept. of

Interior Manual, BLM 516 DM 11.9, D (4) (Exhibit C) (emphasis added). BLM does nothave a

categorical exclusion for the permanent removal of wild horses from public lands.



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FACTUAL BACKGROUND

A. The Adobe Town, Salt Wells Creek, and Great Divide Basin HMAs

The Adobe Town, Salt Wells, and Great Divide Basin HMAs are located in three

southwest Wyoming counties: Carbon, Sweetwater, and Fremont. Pet. For Review, Docket

Entry (DE) 1 40, 43, 46; see also BLM, Map of Wyoming HMAs (Exhibit D). There are

approximately 2,427,220 acres of land within these three HMAs, 1,695,517 (70%) of which are

public lands and 731,703 (30%) of which are private lands. See BLM, July 18, 2014 Categorical

Exclusion (CE) at 1 (Exhibit E). The northern portion of Salt Wells and Adobe Town and the

southern portion of Great Divide Basin fall within the Wyoming Checkerboard, which is where

the majority of the private land holdings within these HMAs are located. See CE (Ex. E) at 1.

The Checkerboard lands consist of one-mile-by-one-mile squares of federal land

continuously alternating with one-mile-by-one-mile squares of private land, forming a

checkerboard pattern. Due to the size of the parcels there is no fencing around them, wild horses

(as well as privately owned livestock) freely roam between the public and private lands. In

addition to the Checkerboard lands, far more than 50% of each of these three HMAs consists of a

large contiguous block of federal public lands. SeeCE (Ex. E) at 1.

The Adobe Town HMA is managed by BLMs Rawlins Field Office under the 2008

Rawlins RMP. In the Rawlins RMP, BLM set the AML for the Adobe Town HMA at 700 wild

horses, which is accomplished by an AML range of 610-800. SeeDE 1 41. The Salt Wells

and Great Divide Basin HMAs are managed by BLMs Rock Springs Field Office under the

1997 Green River RMP. SeeDE 1 44, 46. In the Green River RMP, BLM set the AML for

the Salt Wells HMA at 251-365 and for the Great Divide Basin at 415-600. SeeDE 1 44, 46.



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Both RMPs establish that BLM must [m]aintain wild horse populations within the appropriate

management levels (AML) of [any given] HMA covered by the plan. SeeDE 1 41, 44.

B. The RSGALitigation and the Resulting 2013 Consent Decree Between RSGA

and BLM

On July 27, 2011, the Rock Springs Grazing Association (RSGA) filed a complaint in

this Court seeking to compel BLM to remove all of the wild horses that have strayed onto the

RSGA lands within the Wyoming Checkerboard. Compl. 2,Rock Springs Grazing Assn v.

Salazar (RSGA Case), No. 2:11-cv-263935, ECF No. 1 (Freudenthal, C.J.). The International

Society for the Protection of Mustangs and Burros, AWHPC, and the Cloud Foundation

(AWHPC Intervenors), were granted intervention in the RSGA Case. Order Granting Mot. to

Intervene 4, RSGA Case, ECF No. 32.

On February 12, 2013, BLM and RSGA reached a settlement, and filed a Joint Motion to

Dismiss and a Consent Decree. See Joint Mot. to Dismiss, RSGA Case, ECF No. 81; Consent

Decree, RSGA Case, ECF 81-1 (Exhibit F). The Consent Decree provided, among other things,

that: (a) BLM will remove all wild horses located on RSGAs private lands, including

Wyoming Checkerboard lands, Consent Decree (Ex. F) 1, and (b) BLM will commit to

gather and remove wild horses from Checkerboard lands within Salt Wells and Adobe Town

HMAs in 2013, Divide Basin HMA in 2014, and White Mountain HMA in 2015. Id. 5.

In the Joint Motion to Dismiss, BLM and RSGA assured the Court that the Consent

Decree promoted the public interest by providing thatfuture decisions concerning the wild

horse areas and numbers will occur through a public process. Joint Mot. to Dismiss 4,

RSGA Case, ECF No. 81 (emphasis added). The Consent Decree even contained the following,

presumably intended to protect the public interest:



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The RSGA recognizes that the Respondents are required to comply with other

federal laws in conjunction with undertaking the required actions herein. No

provision of this Consent Decree shall be interpreted or constitute a commitment

or requirement that the Respondents take actions in contravention of the WHA,

FLPMA, NEPA, the APA, . . . or any other law or regulation . . . .

Consent Decree (Ex. F) 17 (emphasis added). Paragraph 10 of the Consent Decree further

explained that [n]othing in this Consent Decree shall be construed to limit or modify the

discretion accorded to BLM by the applicable federal law and regulations. . . or general

principles of administrative law with respect to theprocedures to be followed in carrying out any

of the activitiesrequired herein. Id. at 10 (emphases added).

The AWHPC Intervenors objected to this Consent Decree. See Intervenors Objections

to Proposed Consent Decree, RSGA Case, ECF No. 86-1. One of their primary concerns was

that BLM was committing to remove wild horses from public land without making certain

statutorily required decisions that cannotbe made without compliance with the WHA,

NEPA, and other governing laws. Id. at 10-14. In particular, the Consent Decree appeared to

require the removal of wild horses from public lands in situations that ignored BLMs statutory

obligation to make an excess determination before conducting a roundup on public lands. Id.

at 10. Moreover, in the Consent Decree, BLM committed to take several actions that required

compliance with NEPA i.e., permanently removing wild horses from HMAs before the

agency conducted any NEPA analysis. Id. at 11-14.

In response to the AWHPC Intervenors objections, RSGA argued that these objections

focus in large part on how they speculate BLM will implement the future changes that BLM has

agreed to consider, which was not a basis to deny approval of the Consent Decree. Reply of

RSGA to Intervenors Objections 15-16, RSGA Case, ECF No. 89. RSGA emphasized that

BLM had committed to following appropriate NEPA and public comment procedures. Id. at



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16. Likewise, BLM argued that [u]nder the proposed Consent Decree, the BLM agrees only to

considerthe aforementioned management alternatives and the potential environmental effect

thereof in resource manage plan revisions and associated NEPA documents. Federal Respts

Reply 7-8, RSGA Case, ECF No. 88 (emphases added).

On April 3, 2013, Chief Judge Freudenthal approved the Consent Decree, finding that it

did not on its face violate the law or public policy. RSGA Case, 935 F. Supp. 2d 1179, 1191

(D. Wyo. 2013). Focusing on paragraph 10 of the Consent Decree, the Court concluded that the

Consent Decree expressly prohibits any construction which would limit or modify the discretion

accorded to BLM by the applicable federal law and regulations. Id. at 1189. Rather than

addressing the merits of the Intervenors objections, the Court instead held that whether the

Consent Decree actually limits the BLMs discretion will turn on the implementation and force

of the Decree, which is unclear at this juncture. Id. at 1189-90.

C. BLMs Implementation of the RSGA Consent Decree

i. The 2013 Adobe Town and Salt Wells Roundup

The RSGA Consent Decree states that BLM will commit to gather and remove wild

horses from Checkerboard lands within Salt Wells and Adobe Town HMAs in 2013. Consent

Decree (Ex. F) 5. As a result, in July 2013, BLM issued an EA and an accompanying FONSI

for two agency actions: (1) the removal of excess wild horses from the Adobe Town and Salt

Wells HMAs, and (2) the removal of all wild horses that had strayed onto private Checkerboard

lands within the Adobe Town and Salt Wells HMAs. See2013 Adobe Town EA at 1 (Exhibit

G); 2013 Adobe Town Decision Record and FONSI (Exhibit H). In that EA, BLM stated that

the proposed roundup was necessary to meet the terms of the 2013 Consent Decree. 2013

Adobe Town EA (Ex. G) at 4.



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In the EA for that roundup, BLM made an excess determination as required by the

WHA. BLM identified the AMLs for both the Adobe Town HMA (610-800 wild horses) and the

Salt Wells HMA (251-365 wild horses) as determined in the Rawlins RMP and the Green River

RMP. BLM then compared the projected wild horse inventory of 624 wild horses in Adobe

Town and 823 wild horses in Salt Wells to the operative AMLs. See 2013 Adobe Town EA (Ex.

G) at 3. Based on this information, BLM made the determination that there were 14 excess

wild horses in the Adobe Town HMA and 572 excess wild horses in the Salt Wells HMA. Id.

Wild horse advocacy organizations (including Petitioners in this case) were initially

concerned that BLMs 2013 decision to both (a) remove all excess horses in the Adobe Town

and Salt Wells HMAs, and (b) remove all horses from private checkerboard lands within these

two HMAs would bring the wild horse populations in these areas to below AML. However,

BLM assured those organizations, through counsel, that while wild horses would be removed

from private Checkerboard lands the population will be maintained at the low AML within the

federal land block. Sept. 30, 2013 BLM Letter to William Eubanks (Exhibit I).

In November 2013, pursuant to its EA and FONSI, BLM rounded up 668 wild horses

from the Adobe Town and Salt Wells HMAs. See CE (Ex. E) at 2. BLM permanently removed

586 of those wild horses from the range, which was the combined number of horses determined

by BLM to constitute excess wild horses. Id. The remaining 79 wild horses removed from the

private Checkerboard lands were released back into the federal land block of these HMAs in

order to maintain the AML in the Adobe Town and Salt Wells HMAs. Id.

ii. The Initially Proposed, but Abandoned, Roundup in Great Divide Basin

The RSGA Consent Decree states that BLM will commit to gather and remove wild

horses from Checkerboard lands within . . . [the] Great Divide Basin HMA in 2014. Consent



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Decree (Ex. F) 5. As a result, on December 6, 2013, BLM began that NEPA process by

issuing a Scoping Statement for two proposed agency actions: (1) the removal of excess wild

horses from Great Divide Basin, and (2) the removal of all wild horses on the private

Checkerboard lands within that HMA. SeeGreat Divide Basin Scoping Statement (Exhibit J).

This statement identified the low AML for the Great Divide Basin HMA (415 wild horses) and

made clear that, while all wild horses would be removed from private land, some may be

relocated in the northern part of the Great Divide Basin HMA to maintain the low AML within

the HMA. Id. at 1. BLMs scoping statement mirrored the approach undertaken by BLM in its

2013 roundup in the Adobe Town and Salt Wells HMAs.

In response to this scoping statement, RSGA submitted comments that identified

concerns with BLMs proposed action to remove wild horses to the low [AML] for the HMA, as

this was believed to be inconsistent with the 2013 Consent Decree provision for removing all

wild horses from checkerboard lands. CE (Ex. E) at 2 (emphasis added). As a result, BLM

decided not to gather the Great Divide Basin HMA to low appropriate management level under

Section 3 of the WHA but instead to gather all wild horses from the checkerboard within the

HMAs as required by Section 4 of the WHA and the Consent Decree. Decision Record (DR)

at 2 (Exhibit K). In turn, BLM abandoned the NEPA process concerning a roundup of excess

wild horses in the Great Divide Basin HMA.

iii. BLMs Decision to Remove All Wild Horses From The CheckerboardLands in the Great Divide Basin, Salt Wells, and Adobe Town HMAs

On July 18, 2014, BLM issued a Decision Record (DR) and a Categorical Exclusion

(CE) authorizing the removal of all wild horses from Checkerboard Lands within the Great

Divide Basin, Adobe Town, and Salt Wells Creek Herd Management Areas. DR (Ex. K) at 1.

The DR authorized the removal of at estimated 806 wild horses from the Checkerboard in these



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three HMAs. Id. In issuing this decision, BLM purported to rely only on its limited authority

under Section 4 of the WHA, which allows BLM to remove horses from private land and return

them to the public land from which they strayed. Id. However, the DR and CE make clear that

these 806 wild horses will bepermanently removed from the range. Id.1

Moreover, BLM's roundup will not just occur on private lands. Rather, BLM

acknowledges that in discharging its duties under Section 4 of the WHA wild horses will also

be removed from the public landportions of the Checkerboard. CE (Ex. E) at 5 (emphasis

added); DR (Ex. K) at 3. Yet, BLM did not even purport to invoke Section 3 of the WHA to

authorize the permanent removal of wild horses from public lands, nor did it make the excess

determination required by that provision prior to authorizing this roundup. Nor, for that matter,

did BLM prepare an EA or an EIS analyzing the environmental impacts of this decision or

alternatives to this drastic action. Rather, BLM invoked a categorical exclusion under NEPA

that allows for the [r]emoval of wild horses . . .from private landsat the request of the

landowner. CE (Ex. E) at 5 (emphasis added). Because BLM did not subject this decision to

public scrutiny through the NEPA process, Petitioners and other interested parties have not had

any opportunity to provide comments on or otherwise participate in the decision-making process.

Neither the CE nor the DR identify, let alone discuss, the operative AMLs for the Great

Divide Basin, Salt Wells, or Adobe Town HMAs. In fact, apparently conflating the duties that

apply to private lands with those that apply to public lands, BLM asserted that the management

direction set forth in the Green River and Rawlins RMPs [for the affected HMAs], including that

related to appropriate management levels (AMLs) do not apply to private lands. DR (Ex. K) at

1The DR stated that [a]ll captured wild horses would be removed from the checkerboard landsand entered into the Wild Horse and Burro Program to be made available for adoption. DR at 1.

Any horses not adopted will be cared for in long-term pastures. BLM,BLM Schedules Wild

Horse Removal on Checkerboard Lands(July 18, 2014) (Exhibit L).



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3. However, the CE references an April 2014 census performed by the U.S. Geological Survey

that determined the estimated wild horse population within the relevant HMAs, as well as the

number of horses within the Checkerboard lands: 618 wild horses in the Great Divide Basin

HMA (394 in the Checkerboard); 728 wild horses in the Salt Wells HMA (402 in the

Checkerboard); and 566 wild horses in the Adobe Town HMA (10 in the Checkerboard). See

CE (Ex. E) at 2-3. Based on this survey, BLM estimates that there are a total of 806 wild horses

present on the Checkerboard lands within the three applicable HMAs. See DR (Ex. K) at 1.

The DR and CE authorize BLM to remove all 806 of the wild horses on the public and

private Checkerboard lands. See DR (Ex. K) at 1. As a result, BLMs proposed roundup will

bring the wild horse populations in the Great Divide Basin HMA to 224 wild horses (191 horses

less than the low AML of 415) and in the Adobe Town HMA to 556 wild horses (54 horses less

than the low AML of 610).

According to BLMs decision, this removal of wild horses is purportedly necessary to

comply with . . . [the 2013 Consent Decree], which requires that all wild horses be removed

from checkerboard lands within the Great Divide Basin, Salt Wells Creek, and Adobe Town herd

management areas (HMAs) in accordance with the schedule set out in the decree. DR (Ex. K)

at 2. BLM plans to commence with the removal of all wild horses from the Checkerboard

lands within these three HMAs after August 18, 2014. Id.at 1.

ARGUMENT

As the Supreme Court has explained, [a] plaintiff seeking a preliminary injunction must

establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in

the absence of preliminary relief, that the balance of equities tips in his favor, and that an

injunction is in the public interest. Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008);



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accord Greater Yellowstone Coal. v. Flowers, 321 F.3d 1250, 1255 (10th Cir. 2003);Davis v.

Mineta, 302 F.3d 1104, 1111 (10th Cir. 2002). As demonstrated below, all of these factors

weigh in favor of granting Petitioners requested relief in order to maintain the status quo until

the Court can reach the merits of this case upon review of the agencys administrative record.

I. PETITIONERS ARE LIKELY TO SUCCEED ON THE MERITS

Under the Administrative Procedure Act (APA), the Court shall . . . set aside an

agencys decision if it is arbitrary, capricious . . . or otherwise not in accordance with law or if

it was issued without observance of procedure required by law. 5 U.S.C. 706(2)(A), (D).

As demonstrated below, BLMs decision to permanently remove over 800 wild horses from the

Checkerboard lands in the Adobe Town, Salt Wells Creek, and Great Divide Basin HMAs

violates NEPA and the WHA, and is therefore arbitrary, capricious, and contrary to law.

A. BLM Violated NEPA by Authorizing the Permanent Removal of Wild

Horses from the Range without Conducting Any Environmental Analysis.

NEPA requires all federal agencies to prepare an EIS for major federal actions that may

significantly affect the environment, see 42 U.S.C 4332(C); 40 C.F.R. 1508.27, or, at

minimum, prepare an EA to determine if the environmental effects of its proposed action are in

fact significant. 40 C.F.R. 1501.4(b). With this requirement, NEPA places upon all federal

agencies the obligation to consider every significant aspect of the environmental impact of a

proposed action. Balt. Gas & Elec. Co. v. Natural Res. Def. Council,462 U.S. 87, 97 (1983).

In doing so, NEPA ensures that the agency will inform the publicthat it has indeed considered

environmental concerns in its decisionmaking process. Id. (emphasis added). Simply put,

NEPA demands that the agency take a hard look at the environmental consequences before

taking a major action, thus prohibiting uninformed agency action. Custer Cnty. Action Assn.



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v. Garvey,256 F.3d 1024, 1034 (10th Cir. 2001);Airport Neighbors Alliance, Inc. v. United

States, 90 F.3d 426, 429 (10th Cir. 1996).

BLMs decision to authorize the permanent removal of more than 800 wild horses from

the Adobe Town, Salt Wells, and Great Divide Basin HMAs, and to categorically exclude that

authorization from any environmental analysis whatsoever, is precisely the type of uninformed

agency action prohibited by NEPA. To begin with, by the measure of any yardstick, the

permanent removal of approximately 806 federally protected wild horses from the range will

undoubtedly result in significant impacts to the environment. For example, numerous unique

bands, or families, of wild horses that live within the Adobe Town, Salt Wells, and Great

Divide Basin HMAs will be negatively affected by this roundup. During a roundup, these bands

are torn apart, permanently altering their social structures and family units. SeeCarol Walker

Declaration 5, 8 (Exhibit M); Kimerlee Curyl Declaration 8-9 (Exhibit N). In addition,

because of the close relationship of wild horses to the range, a roundup of this magnitude will

inevitably affect myriad natural resources in these HMAs including forage, water, vegetation,

and other wildlife. See, e.g., 2013 Adobe Town EA (Ex. G) at 15-17 (listing, among other things,

that recreation, soil, and threatened or endangered species may be impacted by a roundup.)

Indeed, BLMs own directives expressly recognize that the permanent removal of any

wild horses significantly affects the environment by stating that [a]n appropriate NEPA analysis

and issuance of a decision is requiredprior to removing the animals. BLM Manual (Ex. B) at

4720.2.21 (emphasis added); id. at 4720.3 ([T]he authorized officers shall conductan

appropriate site-specific analysis of the potential environmental impacts that could result from

implementation of a proposed gather in accordance with [NEPA].) (emphasis added).

Consistent with BLMs written directives, it is the agencys longstanding practice (e.g., the 2013



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Adobe Town/Salt Wells roundup EA) to invariably prepare at least an EA for allwild horse

roundups of any size. Reviewing courts have pointed to this practice in explaining that BLM

typically prepares a detailed gather plan, including an environmental assessment in

compliance with [NEPA] before permanently removing horses from the range. Fund for

Animals. v. BLM, 460 F.3d 13, 16 (D.C. Cir. 2006); see alsoCloud Found., v. Salazar, 738 F.

Supp. 2d 35, 37 (D.D.C. 2010) (noting that BLM prepared an EA and a FONSI for the

permanent removal of 70 wild horses from the range).2

Completely disregarding these mandates and directives, BLM admittedly has not taken

the hard look required by NEPA concerning the permanent removal of over 800 wild horses

from the range. Indeed, in reaching its decision, BLM has not even attemptedto understand how

this massive roundup will impact the environment in these HMAs. Rather, in lieu of preparing

an EIS or EA, BLM simply invoked a categorical exclusion, based on Section 4 of the WHA,

which applies to the [r]emoval of wild horses . . . from private lands at the request of the

landowner. Dept. of Interior Manual, BLM 516 DM 11.9, D4 (Ex. C). On its face, however,

this categorical exclusion plainly does notapply to the current situation for two reasons.3

2BLMs longstanding practice is to prepare at least an EA prior to permanently removing wild

horses from public lands. Consistent with basic precepts of administrative law, BLM cannotdepart from this practice without providing, at least, some reasonable explanation for the

departure. See, e.g., Motor Vehicle Mfrs. Assn of U.S., Inc. v. State Farm Mut. Auto Ins. Co. ,

463 U.S. 29, 56 (1983) (While the agency is entitled to change its view . . . it is obligated toexplain its reasons for doing so.); id.at 57(An agencys view of what is in the public interest

may change . . . . But an agency changing its course must supply a reasoned analysis.) (internal

citations omitted). This is yet another reason BLMs decision is arbitrary and capricious, andcannot be sustained.

3Moreover, even if this categorical exclusion was applicable which it clearly is not it would

nevertheless be impermissible because BLM indicates in its roundup schedule that it intends topermanently remove 140 morehorses than even the DR and CE purported to authorize. See

BLM, Tentative 2014 Removal Schedule (Exhibit Q) (scheduling the removal of 946 wild

horses). This is problematic for a number of reasons, including because the agency will reduce



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First, notwithstanding that the categorical exclusion only covers BLMs removal of wild

horses fromprivate lands, BLM conceded in its CE that wild horses will, in fact, be rounded up

onpublic lands. SeeCE (Ex. E) at 5 (BLM acknowledges that . . . wild horses will also be

removed from the public lands portions of the checkerboard.). Second, despite the fact that this

categorical exclusion is limited to removal of wild horses from private lands to return them to the

public lands from which they strayed, BLM has also made it clear that the nearly thousand

horses slated for removal under the categorical exclusion will bepermanently removed from the

range. See CE (Ex. E) at 5 (All captured wild horses would be . . . made available for

adoption). Thus, the categorical exclusion is invalid as applied to this management action.

4

Accordingly, at bare minimum, BLM was required to prepare an EA before authorizing

the permanent removal of more than 800 wild horses from the Adobe Town, Salt Wells, and

Great Divide Basin HMAs (including from public lands). The categorical exclusion invoked by

the agency is patently inapplicable and does not excuse BLM from its NEPA obligations.5

the Great Divide Basin HMA to a mere 77 wild horses, which is 338 horses less than the

governing AML and which is far below the herd size of 150-200 horses recommended tomaintain an acceptable level of genetic diversity within reproducing wild horse populations.

BLM Handbook (Ex. A) at 22.

4Because BLM has invoked a categorical exclusion and dispensed with its obligation to prepareand EIS or at least an EA, there has been no public notice and comment, thereby stripping

Petitioners of their ability to participate in the decision-making process. 40 C.F.R. 1500.1(b),

1500.2(d); see e.g. Citizens for Better Forestry v. U.S. Dept of Agric., 341 F.3d 961, 970-71 (9th

Cir. 2003) (explaining that a complete failure to involve or even inform the public violatesNEPA and this wholesale neglect of the regulations mandatory inclusion of the public in theprocess . . . undermines the very purpose of NEPA, which is to ensure[] that federal agencies are

informed of environmental consequences before makings decisions and that the information is

available to the public.) (citation omitted).

5Nor does the RSGA Consent Decree allow BLM to flagrantly cast aside its legal obligations

under NEPA. SeeConsent Decree (Ex. F) 17 (RSGA recognizes that [BLM is] required to

comply with other federal laws in conjunction with undertaking the required action herein.)



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B. BLM Violated the WHA By Authorizing the Removal of Non-Excess Wild

Horses and Reducing Wild Horse Populations to Below Low AML.

Pursuant to Section 3 of the WHA, BLM must make an excess determination before

permanently removing anywild horses from the range. See 16 U.S.C. 1333(b)(2); 43 C.F.R.

4720.1. In Colorado Wild Horse and Burro Coalitionv. Salazar (Colorado),639 F. Supp. 2d

87, 95 (D.D.C. 2009), BLM took the extreme position that the agency had the authority to

permanently remove 147 wild horses from the range even though BLM had not determined [the

horses] to be excess animals. The court rejected BLMs position, finding that Congress

clearly intended to protect non-excess wild free-roaming horses . . . from removal and that

BLMs removal authority is limited to those . . . horses . . . that it determines to be excess

animals within the meaning of the [WHA]. Id. at 95-96. As a result, the court held that [a]

prerequisite to removal under the [WHA] is that BLM first determine that an overpopulation

exists and that the . . . horses . . . slated for removal are excess animals. Id. at 98.

Here, as in Colorado, BLM seeks to permanently remove wild horses from the Adobe

Town, Salt Wells, and Great Divide HMAs without having first made an excess determination,

although nearly 700 morewild horses are at issue in this case. As the court found in Colorado,

BLMs decision cannot be sustained where it has abrogated this duty under the WHA. See 16

U.S.C. 1333(b)(2); 43 C.F.R. 4720.1; see also In Def. of Animals v. Salazar, 713 F. Supp. 2d

20, 24 (D.D.C. 2010) (noting that if BLM gathered too many horsesmore than the number that

needed to be removed in order to reach an [AML]non-excess horses would be released back to

the range). BLMs decision must be overturned for that reason alone.6

6BLMs failure to make an excess determination is unsurprising considering that the agencyfailed to conduct any NEPA review in connection with the decision, as BLMs own directives

explain that [a] key element of the [NEPA] analysis will be to make a determination that excess

wild horses . . . are present and require immediate removal. BLM Manual (Ex. B) at 4720.3.31.



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BLMs patent failure to make anyexcess determination is compounded by the fact that

this action will unavoidably reduce wild horse populations to belowlow AML in the Adobe

Town and Great Divide Basin HMAs, a result which independently violates the WHA. See16

U.S.C. 1333(b)(2) (requiring that BLM determine [AMLs] of wild . . . horses and then, after

an excess determination is made, immediately remove excess animals from the range so as to

achieve appropriate management levels.Id. (emphasis added). As recognized recently by the

Ninth Circuit, BLM must achieve a thriving natural ecological balance by maintaining the

relevant AMLs because AML is a vehicle used to move towards a [thriving natural ecological

balance]. In Def. of Animals v. U.S. Dep't of Interior, 751 F.3d at 1063-64 (citations omitted).

Despite this statutory mandate, however, BLMs proposed roundup will bring the Great

Divide Basin wild horse population to 224 wild horses (191 less than the low AML of 415) and

the Adobe Town wild horse population to 556 wild horses (54 less than the low AML of 610).

In its decision documents, BLM did not even identify the operative AMLs, much less grapple

with the fact that the planned removals will result in wild horse populations below low AML in

violation of the statute, its implementing regulations, and BLMs own directives. Accordingly,

by failing to ensure (or even attempting to ensure) that its management action would not drive

these wild horse populations below AML, BLM also violated the WHA and its regulations.7

7BLM has not identified any emergency that would require the removal of wild horses below

AML. SeeBLM Manual (Ex. B) at 4720.2(21)-.2(22) (explaining removal of wild horses belowAML is warranted only when an adequate NEPA analysis indicates that additional animals need

to be removed to protect land health, wildlife habitat and the health of horses.).



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irreparably harm Petitioners aesthetic, recreational, professional, and economic interests. For

example, Petitioners Carol Walker, Kimerlee Curyl, and Ginger Kathrens all visit and plan to

return to the Great Divide Basin, Salt Wells Creek, and Adobe Town HMAs to view, observe,

photograph, and research the wild free-roaming horse herds that reside in these areas. See

Walker Decl. (Ex. M) 3-4, 9; Curyl Decl. (Ex. N) 1, 5, 7, 9; Ginger Kathrens Declaration

1, 4 (Exhibit O). The reduction of nearly a thousand wild horses from this massive area will

make the difficult task of finding anywild horses in these HMAs much less those wild horses

that Petitioners have specifically come to know and recognize during their visits much more

difficult (and potentially impossible depending on which horses are ultimately removed). See,

e.g., Walker Decl. (Ex. M) 4, 10 (I feel extremely connected to the Adobe Town herd);

Curyl Decl. (Ex. N) 5-6, 9 (explaining the her connections with the wild horse herds in the

Salt Wells, Adobe Town, and Great Divide Basin HMAs).

BLMs roundup will be particularly detrimental to Petitioners Walker and Curyl, as they

are professional photographers whose livelihoods depend on wild horse photographs from the

Adobe Town, Great Divide Basin, and Salt Wells HMAs. SeeWalker Decl. (Ex. M) 2, 8;

Curyl Decl. (Ex. N) 3, 9-10. Indeed, Ms. Walker is recognized for her photographs of the Red

Desert wild horses, which includes the specific herds and horses living within these three HMAs.

SeeWalker Decl. (Ex. M) 2. Photographs of these specific herds and horses are crucial to

sustain [her] business.Id. 12. Similarly, Ms. Curyls world renowned images were also

taken in the Adobe Town, Salt Wells, and Great Divide Basin HMAs. SeeCuryl Decl. (Ex. N)

5. According to Ms. Curyl, her professional, artistic, and recreational endeavors are dependent

upon the photographs of wild horses taken in these HMAs because the photographs from these

areas are what I am known for. Id.at 10.



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Through their decades of experience, Ms. Curyl, and Ms. Walker have observed that,

following roundups, wild horse herds are significantly smaller and the horses are skittish and

less trusting of humans, making them much more difficult to observe, approach, and

photograph. Curyl Decl. (Ex. N) 8; Walker Decl. (Ex. M) 6. In the absence of an

injunction, BLMs permanent removal of horses from these HMAs will fundamentally alter Ms.

Curyls and Ms. Walkers ability to capture photographs of these specific wild herds, essentially

destroy[ing] the subject of [their] photographythe delicate social hierarchies of these wild

horses. Walker Decl. (Ex. M) 12; Curyl Decl. (Ex. N) 8. In fact, Ms. Curyl has explained

the roundup would affect her professional and personal interests to the extent that she may not

return to these areas at all after the roundups occur. SeeCuryl Decl. (Ex. N) 9.

In addition to the imminent risk of irreparable harm to the recreational, aesthetic, and

professional interests of the individual Petitioners, BLMs failure under NEPA to engage the

public in any way before issuing its decision harms all of the Petitioners, including Petitioner

AWHPC. As explained in a sworn declaration, AWHPC regularly submits comments and

participates in the public process for wild horse roundups on public lands and would have

participated in the NEPA process for this proposed roundup had BLM followed the statutes

legally prescribed procedures. Suzanne Roy Declaration 3, 5, 10 (Exhibit P). However,

because BLM did not prepare an EIS or EA, the agency deprived AWHPC of the the

opportunity to participate in the public notice and comment process for BLMs decision

regarding the management of wild horses on these HMAs.Id. 9.

Hence, in light of the myriad ways in which BLMs decision has thwarted the procedural

rights of Petitioners mandated by NEPA and the WHA, coupled with Petitioners demonstration



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that they are likely indeed certain to suffer irreparable injury as a result of BLMs decision,

this prong of the preliminary injunction standard has been met.

III. THE BALANCE OF EQUITES AND PUBLIC INTEREST WEIGH IN FAVOR

OF AN INJUNCTION TO MAINTAIN THE STATUS QUO

The primary goal of a preliminary injunction is simply to preserve the status quo until a

trial on the merits can occur. RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1208 (10th Cir. 2009).

When an environmental injury is alleged, the balance of harms will usually favor the issuance

of an injunction to protect the environment. Gambell, 480 U.S. at 545. Thus, Petitioners

modest request to temporarily enjoin BLM from implementing its decision topermanently

removeover 800 wild horses from the rangeuntil such time that the Court can resolve

Petitioners claims on the merits is reasonable, equitable, and in the public interest.9

Petitioners, the wild horses and bands they care about, and the environment will all suffer

irreparable harm if this roundup is not enjoined. See supraPart II. In contrast, BLM cannot

demonstrate that it will suffer anyharm should this particular roundup be delayed until this Court

has an opportunity to resolve this case on the merits. Indeed, BLM complied with NEPA and the

WHA before conducting the November 2013 roundup in the Adobe Town and Salt Wells Creek

HMAs in order to comply with the RSGA Consent Decree without asserting anyharm to the

agency from that process. BLM has not provided any explanation for why it cannot proceed

along the same lines here since, according to BLM, the proposed roundup is alsopurportedly

compelled by the RSGA Consent Decree. Nor can BLM legitimately argue that these wild

horses need to be removed immediately in order to protect the range from further deterioration

9Indeed, maintaining the status quo in this case is particularly important because courts have

generally dismissed challenges to a proposed roundup as moot after the challenged roundup hasoccurred. See, e.g.,Am. Horse. Prot. Assn v. Watt, 679 F.2d 150, 151 (9th Cir. 1982); Cloud

Found., 738 F. Supp. 2d at 39.



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because the agency has not conducted anyenvironmental analysis regarding the impacts of the

wild horse herds in the Adobe Town, Salt Wells Creek, and Great Divide Basin HMAs. 10

Finally, because BLM has committed numerous violations of both NEPA and the WHA

(and departed significantly from its own stated policies), the public interest will unquestionably

be served by maintaining the status quo, since the public has a general interest in the meticulous

compliance with the law by public officials. Fund for Animals v. Clark, 27 F. Supp. 2d 8, 15

(D.D.C. 1998) (citations omitted); see also Patriot, Inc. v. U.S. Dept of Housing and Urban

Dev., 963 F. Supp. 1, 6 (D.D.C. 1997) (finding that the public interest is best served by having

federal agencies comply with the requirements of federal law, particularly the notice and

comment requirements of the APA, and the agencys own stated polices) (citations omitted).

Indeed, Congress has made clear that protection of these wild horses is a matter of great national

importance, because these animals contribute to the diversity of life forms within the Nation

and enrich the lives of the American people. 16 U.S.C. 1331. In addition, [t]here is no

question that the public has an interest in having Congress mandates in NEPA carried out

accurately and completely. Brady Campaign, 612 F. Supp. 2d at 26. Accordingly, the public

interest will be well served by preventing BLMs proposed roundup, at least until this Court has

an opportunity to consider the merits of Petitioners claims on the basis of the agencys

administrative record.

10In fact, according to Petitioner Carol Walker, who has been observing the conditions of theWyoming Checkerboard for years, this year has been a particularly good year for moisture in

Wyoming. . . the landscape was greener than I had seen it in many years. Walker Decl. (Ex. M)

10; see alsoKathrens Decl. (Ex. O) 5 (The HMAs at issue here in southern Wyoming are

not currently experiencing a drought. In fact, there has been above-average rainfall in these areasthis year.) Hence, even had BLM complied with NEPA, there stillwould not be any basis for

arguing that the equities compel immediate government action.



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CONCLUSION

For all the forgoing reasons, the Court should enjoin BLM from permanently removing

wild horses from the Adobe Town, Salt Wells Creek, and Great Divide Basin HMAs until the

Court can resolve the case on the merits.11

Respectfully submitted,

__/s/__________________________

Michelle D. Sinnott (pro hac vice)

(Virginia Bar No. 85563)

William S. Eubanks II (pro hac vice)(D.C. Bar No. 987036)

Caitlin T. Zittkowski (pro hac vice)(CA Bar No. 290108)

MEYER GLITZENSTEIN & CRYSTAL1601 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 23rdStreet, Suite 1

Cheyenne, WY 82001-3519(307) 638-8885

Counsel for PetitionersDate: August 8, 2014

11Although Petitioners are not requesting any specific relief at this time in the RSGA Case,RockSprings Grazing Assn v. Salazar, No. 2:11-cv-263935, Petitioners note that the Courts

resolution of the merits in this proceeding may have a direct bearing on the continuing validity of

the Consent Decree previously approved by the Court in that matter.


De 17-1 - Memo in Support of Petitioners Motion, 8.8.14

Documents

Transcript of De 17-1 - Memo in Support of Petitioners Motion, 8.8.14