Filed Reply Brief.pdf

7/24/2019 Filed Reply Brief.pdf

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No. 15-8033

ORAL ARGUMENT REQUESTED

______________________

IN THE UNITED STATES COURT OF APPEALSFOR THE TENTH CIRCUIT

______________________

AMERICAN WILD HORSE PRESERVATION CAMPAIGN, et al.,

Petitioners-Appellants,

v.

SALLY JEWELL, et al.,

Respondents-Appellees,

and

ROCK SPRINGS GRAZING ASSOCIATION and STATE OF WYOMING,

Intervenor-Appellees.

______________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF WYOMING IN CASE 2:14-cv-00152

(HONORABLE NANCY D. FREUDENTHAL)______________________

APPELLANTSREPLY BRIEF______________________

Katherine A. Meyer William S. Eubanks IIMeyer Glitzenstein & Eubanks LLP Meyer Glitzenstein & Eubanks LLP

4115 Wisconsin Avenue NW 245 Cajetan Street

Suite 210 Fort Collins, CO 80524

Washington, DC 20016 (970) 703-6060(202) 588-5206 (202) 588-5049 (fax)

[email protected] [email protected]

Appellate Case: 15-8033 Document: 01019579271 Date Filed: 03/01/2016 Page: 1


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CORPORATE DISCLOSURE STATEMENT

Pursuant to Fed. R. App. P. 26.1, Appellants American Wild Horse

Preservation Campaign, The Cloud Foundation, Return To Freedom, Carol

Walker, and Kimerlee Curyl hereby state that they are either nongovernmental

public interest organizations or individuals. None of them issues stock of any kind,

nor has parent or subsidiary corporations. Pursuant to Fed. R. App. P. 25(a)(5) and

Tenth Circuit Rule 25.5, the undersigned also certifies that all required privacy

redactions have been made.



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TABLE OF CONTENTS

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

I. BLMS UNPRECEDENTED ACTION OF PERMANENTLY REMOVINGWILD HORSES FROM PUBLIC LANDS PURSUANT TO ITS LIMITED

PRIVATE LAND REMOVAL AUTHORITY IN SECTION 4 FAILSUNDER BOTH STEPS OF THE CHEVRON FRAMEWORK. ..................... 5

A. BLM Cannot Escape The Clear Application Of Chevron Step 1 To The

Plain Language Of The Wild Horse Act. ..................................................... 7

B. If The Court Reaches Chevron Step 2, BLMs Interpretation IsNot APermissible Construction Of The Wild Horse Act. .....................................21

II. BLMS SUBSTANTIAL REDUCTION OF THESE WILD HORSE

POPULATIONS FAR BELOW AML ON THESE PUBLIC LANDS

FLOUTS THE WILD HORSE ACT, FLPMA, AND THE BINDINGRMPS. .............................................................................................................29

III. PETITIONERS CLAIMS ARE JUSTICIABLE .......................................32

A. This Case Is Not Moot Because Meaningful Relief Remains Available

To Remedy Petitioners Ongoing Injuries Caused By BLMs Actions......34

B. Even If Relief Were Not Available, This Case Is Not Moot. .....................39

CONCLUSION ........................................................................................................42

CERTIFICATE OF COMPLIANCE ...................................................................... 44

CERTIFICATE OF SERVICE ............................................................................... 44

CERTIFICATE OF PRIVACY REDACTION ....................................................... 45

CERTIFICATE OF VIRUS SCAN ......................................................................... 45



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TABLE OF AUTHORITIES

Cases

Airport Neighbors Alliance, Inc. v. United States,90 F.3d 426 (10th Cir. 1996) ...............................................................................36

Am. Petr. Inst. v. EPA,

52 F.3d 1113 (D.C. Cir. 1995) .............................................................................18

Bar MK Ranches v. Yuetter,

994 F.2d 735 (10th Cir. 1993) .............................................................................41

Buchheit v. Green,

705 F.3d 1157 (10th Cir. 2012) .................................................................... 40, 41

Chafin v. Chafin,

133 S. Ct. 1017 (2013) .........................................................................................34

Day v. Bond,

500 F.3d 1127 (10th Cir. 2007) ...........................................................................34

Elwell v. Okla. ex rel. Bd. Of Regents of Univ. of

Okla., 693 F.3d 1303 (10th Cir. 2012) .................................................................24

Erlenbaugh v. United States,

409 U.S. 239 (1972) .............................................................................................17

Ethyl Corp. v. EPA,

51 F.3d 1053 (D.C. Cir. 1995) .............................................................................18

Fallini v. Hodel,

783 F.2d 1343 (9th Cir. 1986) ...................................................................... 13, 14

Friends of the Earth v. EPA,

446 F.3d 140 (D.C. Cir. 2006) ...................................................................... 20, 28

Friends of the Earth v. Laidlaw Envtl. Servs., Inc.,

528 U.S. 167 (2000) ................................................................................ 34, 39, 40



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Herriman v. Bell,

590 F.3d 1176 (10th Cir. 2010) .................................................................... 41, 42

Hill v. Kemp,

478 F.3d 1236 (10th Cir. 2007) ...........................................................................14

Hydro Res., Inc. v. EPA,

608 F.3d 1131 (10th Cir. 2010) ...........................................................................22

In Defense of Animals v. U.S. Dept. of the Interior,

808 F. Supp. 2d 1254 (E.D. Cal. 2011) ........................................................ 35, 38

Kelley v. City of Albuquerque,

542 F.3d 802 (10th Cir. 2008) .............................................................................16

Local No. 93, Intl Assn of Firefighters v. Cleveland,

478 U.S. 501 (1986) .............................................................................................27

Massachusetts v. EPA,

549 U.S. 497 (2007) ...................................................................................... 18, 19

Michigan v. EPA,

135 S. Ct. 2699 (2015) .........................................................................................27

Mission Group of Kan. v. Riley,146 F.3d 775 (10th Cir. 1998) .............................................................................21

Morton v. Mancari,

417 U.S. 535 (1974) .............................................................................................28

Natl Parks Conservation Assn v. FAA,

998 F.2d 1523 (10th Cir. 1993) ...........................................................................36

Perf. Coal Co. v. Fed. Mine Safety & Health Rev. Commn,

642 F.3d 234 (D.C. Cir. 2011) .............................................................................16

Roaring Springs Assocs. v. Andrus,

471 F. Supp. 522 (D. Or. 1978) .................................................................... 14, 24

United States v. Games-Perez,

695 F.3d 1104 (10th Cir. 2012) ...........................................................................13



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United States v. Gonzales,

520 U.S. 1 (1997) .................................................................................................16

United States v. Power Engg Co.,

303 F.3d 1232 (10th Cir. 2002) ...........................................................................28

United States v. Price,

361 U.S. 304 (1960) .............................................................................................20

Utah Envtl. Cong. v. Russell,

518 F.3d 817 (10th Cir. 2008) .............................................................................36

Walters v. Metro. Educ. Enters., Inc.,

519 U.S. 202 (1997) ............................................................................................... 9

Watt v. Alaska,

451 U.S. 259 (1981) .............................................................................................28

Whitman v. Am. Trucking Assns.,

Inc., 531 U.S. 457 (2001).............................................................................. 17, 29

Federal Statutes

5 U.S.C. 706 ................................................................................................... 32 ,41

16 U.S.C. 1331 ........................................................................................................ 6

16 U.S.C. 1332 ....................................................................................... 1, 8, 15, 19

16 U.S.C. 1333 ............................................... 6, 7, 8, 10, 11, 15, 19, 21, 22, 23, 26

16 U.S.C. 1334 ........................................................................... 3, 8, 11, 12, 16, 27

43 U.S.C. 1701-1787 ............................................................................................ 1



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GLOSSARY

AML Appropriate Management Level

BLM Bureau of Land Management

FLPMA Federal Land Policy and Management Act

HMA Herd Management Area

NEPA National Environmental Policy Act

RMP Resource Management Plan

RSGA Rock Springs Grazing Association



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INTRODUCTION

This appealwhich has important implications for national wild horse

managementasks the fundamental question of whether the federal government

can take actions on public lands that bypass the federal laws that expressly dictate

how those public lands must be managed. In their opening brief, Petitioners

American Wild Horse Preservation Campaign, et al., explained that the Bureau of

Land Management (BLM) is violating the Wild Free-Roaming Horses and

Burros Act (Wild Horse Actor Act), 16 U.S.C. 1331-1340, by adopting an

unprecedented counter-textual statutory interpretation under which BLM

permanently removes federally protected wild horses frompublic lands pursuant to

Section 4 of the Act, despite the fact that Congress plainly limited BLMs authority

under that provision to removing horses only from privatelyowned land. Id.

1334 (emphasis added). In the process, BLM has also willfully disregarded the

specific legislative dictates that do expressly apply to these public landsi.e., the

obligations Congress imposed on BLM in Section 3 of the Act that apply before

any wild horse may be removed from anypublic lands administered by BLM in the

Checkerboard or elsewhere. Id. 1333(b)(2), 1332(e).

Petitioners also explained that BLMs actions violated the Wild Horse Act,

the Federal Land Policy and Management Act (FLPMA), 43 U.S.C. 1701-

1787, and BLMs own binding Resource Management Plans (RMPs) developed



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pursuant to FLPMA, by concededly reducing the wild horse populations that must

be managed on the public lands of these herd management areas (HMAs)the

vast majority of which occur outside the Checkerboardfar below the binding

appropriate management levels (AMLs) that apply to these public lands.

In response, rather than seriously grapple with Petitioners straightforward

legal arguments concerning the plain language of the Wild Horse Act that governs

the disposition of this appeal under Chevron Step 1, Respondents have instead

seriously mischaracterized Petitionerspositions in order to create and knock down

straw men that have nothing to do with Petitionersarguments.

For example, contrary to Respondents insistence, Petitioners have never

suggested that BLM should carry out its responsibilities in managing wild horses

in the combined private and public lands of the Checkerboard in such a way that

would not provide private landowners in the checkerboard with the relief to which

they are statutorily entitled. Brief of Respondent-Intervenor State of Wyoming

(Wyo. Br.) at 16-18. Rather, Petitioners have long argued that, while the Rock

Springs Grazing Association (RSGA) certainly has a statutory right under

Section 4 to request that BLM arrange for the removal from RSGAsprivatelands

of any wild horses that have stray[ed]from public lands onto [RSGAs] privately

owned land, 16 U.S.C. 1334 (emphasis added), BLM may address such a



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request eitherby invoking Section 4 to remove all wild horses found on RSGAs

privatelands, orby opting to invoke both Sections 3 and 4 in a single combined

decision-making process aimed at removing all horses from the private

Checkerboard lands and all excess horses found on the public Checkerboard

lands.

As explained in our opening brief, the latter option would require BLM to

adhere to the applicable AMLs and other mandatory obligations imposed by

Congress with respect to the removal of horses from thepubliclands of these

HMAs. This could be accomplished either by targeting all such excess horses

for permanent removal, or, given the makeup of the Checkerboard, by maintaining

the minimum wild horse population within AML entirely outside of the

Checkerboard on the vast blocks of contiguous BLM-administered public lands.

See Pet.App.238 (map depicting these HMAs). Eitherof these alternative actions

would fully satisfy RSGAs Section 4 rights by arranging for the removal of every

single wild horse from RSGAsprivateCheckerboard lands (i.e., the only right

Congress created for a private landowner under Section 4), and, in the process,

would actually harmonize Sections 3 and 4 rather than eviscerate the plain intent of

Section 3, which BLM seeks to do here. However, while BLM had various

management options available that wouldhave been consistent with Congress



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express intent in the Wild Horse Act, the action BLM actually selectedi.e.,

invoking Section 4s limitedauthorization of removal of wild horsesfrom private

landsfor the purpose of removing many wild horses frompublic landswas

clearly foreclosed by Congress.

Accordingly, as described below, BLMs interpretation and application of

the Wild Horse Act fails at both Chevron Step 1 and Step 2. By invoking Section

4 to remove wild horses frompublic lands, and ignoring Section 3 of the Act

which governs the removal of horses from thepubliclandsBLM flouted the

statutesplain terms and overstepped the explicit authority Congress conferred on

it under the Act, requiring reversal under Chevron Step 1. Similarly, because BLM

failed to harmonize Sections 3 and 4 of the Act, and instead adopted an

interpretation of the statute that violates several major canons of statutory

construction, BLMs actions also fail under Chevron Step 2. For these reasons, the

ruling below must be reversed.



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I. BLMS UNPRECEDENTED ACTION OF PERMANENTLY

REMOVING WILD HORSES FROM PUBLIC LANDS PURSUANT

TO ITS LIMITED PRIVATE LAND REMOVAL AUTHORITY IN

SECTION 4 FAILS UNDER BOTH STEPS OF THE CHEVRON

FRAMEWORK.

Petitioners opening brief explained that Chevron Step 1 governs the Courts

Wild Horse Act analysis because Congress clearly delineated BLMs authority

with respect to all wild horses found onpubliclands (Section 3) and to those

horses that have stray[ed] from public lands onto privately owned land(Section

4), particularly where Congress set forth no exception in either section related to

BLMs management of the Wyoming Checkerboard. Because the district court

entirely failed to consider the Acts plain language, instead skipping Chevron Step

1 and moving immediately to the permissibility of BLMs action under Chevron

Step 2, reversal is necessary here. See Opening Brief of Petitioners (Pet. Br.) at

37-49. Alternatively, should the Court deem the statute ambiguous despite

Congress plain intent, Petitioners explained why BLMs interpretation could not

be sustained under Chevron Step 2 because it violates several canons of statutory

construction, contravenes the express purposes of the Act, runs afoul of BLMs

own past interpretations and guiding policies, and is not deserving of deference

because agency counsels post hoc rationalizations do not satisfy the requirements

for judicial deference. Id.at 49-60.



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In response, Respondents have echoed the district courts error, skipping

over the Acts plain language to instead focus almost entirely on the purported

reasonableness of BLMs action, despite this being thefirst time in agency

historythat BLM has invoked its Section 4 authoritywhich governs actions on

private landsto permanently remove horses frompublic lands. SeeCorrected

Brief of Federal Respondents (Fed. Br.)at 22 (framing the issue in this appeal as

whether BLMs decision . . . is reasonable); id. at 25 (stating that treat[ing] the

public lands of the checkerboard as private landsfor the purposes of wild horse

removal is reasonable here). However, in arguing about the ostensible

reasonableness of BLMs action, Respondents have wholly ignored the

mandatory requirements Congress imposed in Section 3, which BLM must satisfy

before removing a single horse frompubliclands, and which are absolutely

necessary to protect and manage wild free-roaming horses and burros as

components of the public lands. 16 U.S.C. 1333(a);see also id. 1331

(declaring that wild free-roaming horses shall be protected and considered in

the area where presently found, as an integral part of the natural system of the

public lands). Moreover, as demonstrated in our opening brief and as further

discussed below, in light of the overarching purposes of the Act, there is nothing

reasonable about the agencys approach here.



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A. BLM Cannot Escape The Clear Application Of Chevron Step 1 To

The Plain Language Of The Wild Horse Act.

In light of Respondents meager responses to Petitioners extensive Chevron

Step 1 arguments, this Court should hold that BLM overstepped its plainly

prescribed statutory authority in Section 4 of the Wild Horse Act by taking the

unprecedented action of permanently removing federally protected wild horses

frompublic lands without ensuring that those horses were excess animals within

the meaning of the Act and without ensuring that BLMs action would maintain the

AML on the public lands of these HMAs (even if entirely outside of the

Checkerboard), consistent with Congress mandates in Section 3 of the Act. See

16 U.S.C. 1333-1334. Although the Court can reach this conclusion without any

additional briefing on this issue in light of the brevity of Respondents Chevron

Step 1 defenses, Petitioners nevertheless provide the following arguments further

reinforcing that BLMs action cannot survive Chevron Step 1 scrutiny.

Section 3 of the Wild Horse Act provides that BLM may only remove a

federally protected wild horse from public lands afterBLM determines both 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)

(emphases added). Only after BLM has made both determinations is BLM

authorized to immediately remove excess animals from the rangeso as to achieve



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appropr iate management levels. Id.(emphasis added). Congress specifically

defined public lands as used in Section 3 and elsewhere in the Act to mean any

lands administered by the Secretary of the Interior through BLM. Id. 1332(e)

(emphasis added). Thus, plainly, Congress intended to subject allBLM-

administeredpubliclands to the legal safeguards of Section 3i.e., BLM may not

remove any wild horses from anypublic lands unless BLM has first formally

determined that such horses are excess animals within the meaning of the Act,

see id. 1332(f), and BLM has ensured that its actionat least with respect to the

public lands involvedwill achieve the applicable AML. See id. 1333(b)(2).

In Section 4 of the Act, Congress specifically prohibited private landowners

from harming wild horses that have come onto their property. Id. 1334 (directing

that [i]n no event shall such wild free-roaming horses and burros be destroyed

except by the agents of BLM). However, it did provide that [i]f wild free-

roaming horses or burros strayfrompublic lands ontoprivately owned land, the

owners of such land mayinform the nearest Federal marshall or agent of the

Secretary, who shall arrange to have the animals removed from that land. 16

U.S.C. 1334. However, nothing in this provision authorizes BLM to

permanently remove wild horses from anypubliclandseven if that horse has

previously strayed onto private land or may in the future potentially stray onto



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private land. Nor does this provision excuse BLM from satisfying the legislative

prerequisites to wild horse removal specified in Section 3 when public lands are

involved, even if separate private lands may also be involved. Id. Indeed, because

Congress clarified that a private landowner may request removal of horses only

when they have strayed frompublic lands ontoprivately owned land, id., this

provision, by its plain language, only applies to wild horses that are currently

found onand thus can be removedfromthat private land after the landowner

requests such removal. See Walters v. Metro. Educ. Enters., Inc., 519 U.S. 202,

207 (1997) (In the absence of an indication to the contrary, words in a statute are

assumed to bear their ordinary, contemporary, common meaning(quotation marks

and citation omitted)).

Against this backdrop, Respondents have made three critical concessions

that significantlybolster Petitioners Chevron Step 1 argument. First, BLM admits

that, in addition to removing wild horses from private lands in response to RSGAs

separate Section 4 request, BLM also permanently removed hundreds of wild

horses frompublic lands, ostensibly under only its limited Section 4 authority.

Second, BLM concedes that it did not even purport to comply with the mandatory

procedures Congress established in Section 3 with respect to the public lands

involved, failing to determine that excess horses were present onpublic lands or



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that any permanent removal of wild horses from these public lands was necessary.

Third, despite the fact that Section 3 allows BLM to remove wild horses from

public lands only to achieve appropriate management levels, 16 U.S.C.

1333(b)(2), BLM concedes that its action left these HMAs far below the AMLs

that BLM itself established in the binding RMPs that govern these areas. See Fed.

Br. at 22 (To be sure, the 2014 gather removed horses from public land portions

in the checkerboard, and left those HMAs below their appropriate management

levels established in the HMAs respective resource management plans.).

Evidently recognizing the vulnerability of their legal position, Respondents

posit two arguments for why this Court should not invalidate BLMs action on

Chevron Step 1 grounds: (1) Congress intended for Section 4s limited authority to

remove wild horses from private lands to encompass public lands when horses

found on public lands havepreviously strayedonto private lands or may do so in

the future; and (2) Congress did not speak in the Wild Horse Act as to how BLM

should manage wild horses in checkerboard land patterns or other HMAs involving

a mix of public and private lands. See Fed. Br. at 22-23, 26-30; Wyo. Br. at 22-24;

RSGA Br. at 36-38. Neither argument has any merit.

Although BLM has made only a Chevron Step 2 argument that the agency

may reasonably invoke its Section 4 authority to remove federally protected wild



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horses from public lands under certain circumstances, RSGA and the State of

Wyoming have argued under Chevron Step 1 that Congress plainly intended for

BLM to remove all wild horses from public lands under Section 4 so long as such

horses have previously strayed onto private lands or may do so at some

indeterminate future time. See RSGA Br. at 36 (asserting that as soon as a horse

moves from public lands to the Checkerboard, whether on publicor private

portions, that horse is within the purview of Section 4 and must be removed

(emphases added)). The fact that BLMwhose decision is under reviewdoes

not evenendorse this radical position is telling, but, in any event, there are many

reasons why Respondents groundless construction of Section 4 must be rejected.

First, as explained above,see supra at 8-9, the plain language of Section 4

forecloses any argument that Congress intended to authorize BLM to permanently

remove any wild horses found onpublic lands allocated for use by wild horses. To

the contrary, Section 4 merely confers limited authority on BLM to arrange to

have the animals removedfromprivate land at the request of the landowner [i]f

wild free-roaming horses or burros strayfrompublic lands ontoprivately owned

land. 16 U.S.C. 1334. Indeed, the farfetched position of RSGA and the State of

Wyoming, if adopted by this Court, would completely nullify and render

inoperable the specific procedures and prerequisites for removals of wild horses



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from public lands that Congress deliberately included in Section 3, id.

1333(b)(2), instead granting BLM carte blanche to remove wild horses from public

lands in purported compliance with requests under Section 4, which, by the

statutes plain terms, are limited to private lands, id. 1334.

Second, as Petitioners explained in their opening brief, courts have

consistently rejected the argument that BLM has a duty under Section 4much

less authority under that provisionto permanently remove wild horses from

public lands simply because such horses have previously strayed onto private lands

or may at some indeterminate future time stray onto private lands. See Pet. Br. at

44-46. Therefore, although RSGA and the State of Wyoming assert that all wild

horses found on thepublic lands of these HMAs are strays and must be

removed regardless of whether they currentlyreside on public or private land,

RSGA Br. at 36, there is simply nothing in Section 4 or the legislative history

underlying that provision indicating that Congress ever intended to provide private

landowners such as RSGA with anything more than a right to have BLM arrange

to remove wild horses from theirprivatelands if such animals strayfrompublic

lands ontoprivately owned lands. 16 U.S.C. 1334.1

1 Yet another unsubstantiated position advanced by RSGA without support from

BLM is that BLM may no longer manage any wild horses on thepublic lands ofthe Checkerboard as a result of RSGAs 2010 revocation of consent to maintain



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Indeed, as Petitioners have explained, the Ninth Circuit has already rejected

Respondents reading of Section 4 inFallini v. Hodel, in which that court held

that: (1) Section 4 clearly contemplates the possibility that wild horses may stray

onto private lands, (2) BLM has no duty, ministerial or prescribed to prevent

straying of wild horses onto private land, and (3) Section 4 does notrequire the

BLM to prevent straying in the fi rst instance. 783 F.2d 1343, 1344-46 (9th Cir.

1986) (emphases added). Hence, the ruling that RSGA and the State of Wyoming

seek from thisCourti.e., that Section 4 mandatesthat BLM mustpermanently

remove frompublic lands any wild horse that has ever previously strayed onto

private land or that maydo so at some future indeterminate time,see RSGA Br. at

36; Wyo. Br. at 21-22not only finds no support in the statutory text, its

legislative history, or basic common sense, but would also create an unnecessary

circuit split as to BLMs authority under Section 4 to preemptively remove wild

horses from public lands to prevent them from subsequently straying onto private

wild horses on itsprivateCheckerboard lands. RSGA Br. at 22, 46. It isundisputed that the currently operative RMPswhich BLM adopted through

formal notice and comment decision-making processesrequire BLM to managewild horses on the public lands of these HMAs (including the Checkerboards

public lands) unless and until BLM formally amends those RMPs by eitherchanging the boundaries of these public land HMAs or modifying the AMLs that

apply to these public lands. See Pet. Br. at 58-63.



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lands. See United States v. Games-Perez, 695 F.3d 1104, 1115 (10th Cir. 2012)

([T]he circuits have historically been loath to create a split where none exists.).

This Court should decline that invitation and instead apply the plain language

Congress included in the Wild Horse Act for such matters.2

Respondents second Chevron Step 1 argumentwhich BLM doesendorse

(and indeed upon which the federal governments case hinges)is also meritless.

Respondents contend that even if Section 4 did not authorize BLM to remove wild

horses from public lands to prevent future straying onto private lands, Congress

2Petitioners relied heavy onFalliniin their opening brief, as well asRoaringSprings Assocs. v. Andrus, 471 F. Supp. 522, 523 (D. Or. 1978) (holding that

[e]ven if . . . [BLM] must go back again to retrieve the animals each time itreceives a new request from a private landowner to remove a horse from his

private land, that is nevertheless [BLMs] duty prescribed by the statute)both

of which establish that BLM may notpreemptively remove wild horses frompublic lands to avoid subsequent straying onto private lands because Section 4 only

authorizes BLM to retrieve horses fromprivatelands when it receives a Section 4

request. See Pet. Br. at 8, 33-35, 45-46, 53. Remarkably, Federal Respondentsonly respond to Petitioners arguments in this respectand the likelihood of a

circuit splitin a single footnote,Fed. Br. at 35 n.19, which this Court has

repeatedly held is insufficient to preserve an argument. See, e.g.,Hill v. Kemp, 478

F.3d 1236, 1255 n.21 (10th Cir. 2007) (holding that [w]e will notconsider anargument raised in such a perfunctory manner where defendants argue in a

footnote that claims five and six are barred). In any event, Respondents attemptsto mischaracterizeFallini andRoaring Springsare unavailing, as those rulings

clearly demonstrate that nothing in Section 4 authorizesmuch less requiresBLM to permanently remove any wild horses from public lands because a private

landowner believes that such horses may stray onto his private lands at someindeterminate future date.



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must have failed to address the unique situation of the Checkerboard. Therefore,

Respondents argue, this Court must move to Chevron Step 2 to assess whether

BLMs actions constitute a permissible construction of the Act. See Fed. Br. at 23

(admitting that Section 3 and Section 4 guide BLM in how to manage horses on

public and private lands, respectively but asserting that neither provision speaks

to how BLM should manage horses in areas where public and private land are

interspersed); id. at 26 (arguing that the Act is silent on how BLM is to address

this unique land management problem). The plain language of the statute,

however, forecloses any notion that Congress did not intend for BLMsSection 3

obligations to extend to allpublic lands administered by the agency for wild horse

management, whether or not there may also be private lands inside of or adjacent

to those public land HMAs.

Once again, Congress spoke in unequivocal terms in Section 3 of the Act in

imposing certain obligations on BLM before it may ever remove any wild horses

from public lands, 16 U.S.C. 1333(b)(2),and Congress deliberately defined

public lands to mean anylands administered by the Secretary of the Interior

through BLM. Id. 1332(e) (emphasis added). Congress pointedly did not

exempt from that definition public lands that border or contain private lands.

Section 4 of the Act does not qualify the application of Section 3 to anyand all



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public lands, and instead merely provides a limited ability for private landowners

to request that BLM remove a wild horse from their private property. Id. 1334.

By defining the public lands to which certain obligations apply to mean

anylands administeredby BLM for wild horse management, Congress left no

question that it intended BLM to apply those prescriptions to allpublic lands

before it sought to permanently remove any horses from anypublic lands.

Congress definitional clarityalone is sufficient to resolve this appeal in

Petitioners favor. See United States v. Gonzales, 520 U.S. 1, 5 (1997) (rejecting

an interpretation of any other term of imprisonment to mean limited to some

subset of prison sentencesbecause any means one or some indiscriminately of

any kind);Kelley v. City of Albuquerque, 542 F.3d 802, 814 (10th Cir. 2008)

(holding that [t]he term any carries an expansive meaning when . . . it is used

without limitation.);Perf. Coal Co. v. Fed. Mine Safety &Health Rev. Commn,

642 F.3d 234, 239 (D.C. Cir. 2011) (under Chevron, there isno reason to

manufacture ambiguity when . . . the legislative prose is pellucid).

Furthermore, Congress wasintimately familiar with the circumstances of the

Wyoming Checkerboard when it enacted the Wild Horse Act. In fact, Congress

created the Checkerboard land pattern and then granted these lands to BLM well

before passing the Act. See Pacific Railroad Act of 1862, 12 Stat. 489, 491-92 2.



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Thus, this Court must assume that by subsequently refusing to create any

exceptions to Section 3s application to any public landslet alone an exception

specific to the Wyoming Checkerboard (or any other instance of the common

checkerboard pattern of land ownership)Congress must have deliberately chosen

for Section 3s safeguards to apply to every wild horse removal from any public

lands. See Erlenbaugh v. United States, 409 U.S. 239, 244 (1972) (courts must

necessarily assume[] that whenever Congress passes a new statute, it acts aware

of all previous statutes on the same subject(citation omitted)). In any event,

because Congress itself did not see fit to devise an exception for managing the

Checkerboard (or any other HMA), BLM may not create a statutory provision that

would fundamentally alter the entire regulatory regime. See Whitman v. Am.

Trucking Assns., Inc., 531 U.S. 457, 468 (2001) (Congress . . . does not alter the

fundamental details of a regulatory scheme in vague terms or ancillary

provisionsit does not, one might say, hide elephants in mouseholes.).

Indeed, Respondents argument has been repeatedly rejected by courts in

analogous contexts where federal agencies have argued that, despite broad and

unqualified statutory language of general applicability, Congress failure to

specifically negate every conceivable possibility somehow renders the statute

ambiguous and opens the door for the agency to fill in the gap. For example, faced



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with a functionally indistinguishable argument that an agency could act so long as

Congress had not specifically prohibited that action, the DC Circuit explained:

Implicit in the EPAs argument is the notion that if Congress has notmentioned public health in [the statute], then Congress is silent or

ambiguous as to that issue, and the Agency therefore has discretion toregulate on the basis of that issue. This argument, however,

misconstrues the Chevron analysis. . . . [W]ere courts to presume a

delegation of power absent an express withholding of such power,

agencies would enjoy virtually limitless hegemony, a result plainly out

of keeping with Chevron and quite likely with the Constitution as well.

Ethyl Corp. v. EPA, 51 F.3d 1053, 1060-61 (D.C. Cir. 1995);see also Am. Petr.

Inst. v. EPA, 52 F.3d 1113, 1120 (D.C. Cir. 1995) (To suggest, however, that

Chevron step two is implicated any time a statute does not expressly negate the

existence of a claimed administrative power (i.e. when the statute is not written in

thou shalt not terms), is both flatly unfaithful to the principles of administrative

law . . . and refuted by precedent. Thus, we will not presume a delegation of

power based solely on the fact that there is not an express withholding of such

power.). This is precisely why the Supreme Court has held that [t]he fact that a

statute can be applied in situations not expressly anticipated by Congress does not

demonstrate ambiguity but rather [i]t demonstrates breadth.Massachusetts v.

EPA, 549 U.S. 497, 532 (2007) (quotation marks and citation omitted).

Accordingly, because BLM is attempting to imply a delegation of power

under Section 4which Congress did not authorizeby disingenuously asserting



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that Congress has not spoken to the management of public land wild horse

removals in the Checkerboard (which is, in fact, fully encompassed by the breadth

of 16 U.S.C. 1333(b)(2), 1332(e)), this argument cannot pass muster.3

In short, this case presents a straightforward legal inquiry that must be

resolved on Chevron Step 1 grounds. The plain language of the Wild Horse Act

compels the conclusion that Congress did not authorize BLM in Section 4 of the

Act to permanently remove any federally protected wild horses from public lands

in these HMAs without complying with the safeguards imposed in Section 3 of the

Act. Hence, unless and until BLM seeks and obtains relief from Congress through

3As an example of the absurdity of Respondents argument, BLM manages wild

horses on 179 public land HMAs throughout the country, each of which has itsown unique complexities. Indeed, most HMAsas is the case herecontain

either private lands within the HMAs borders or border private lands on all sides.

Therefore, interactions between wild horses and private landowners are certainlynot unique to the three HMAs before the Court, which is why Congress created an

all-encompassing statutory provision governing all public lands (Section 3) and a

similar provision governing all private lands (Section 4). Yet, under Respondentsview, the only way Congress could address the unique circumstances of each HMA

would be to create specific statutory exceptions as to each of the 179 HMAs, which

is not only unworkable but it is simply not how Congress legislates. Instead,

Congress optedconsistent with other federal environmental lawsto createprovisions of general applicability that apply to all HMAs until and unless

Congress amends the legislation to address the local needs of specific HMAs. SeeMass., 549 U.S. at 532 (pointing out the breadth of the environmental law at

issue and holding that [b]ecause greenhouse gases fit well within the Clean AirAct's capacious definition of air pollutant, we hold that EPA has the statutory

authority to regulate the emission of such gases from new motor vehicles).



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legislative amendment, this Court must enforce the plain terms of the Wild Horse

Act. See Friends of the Earth v. EPA, 446 F.3d 140, 142 (D.C. Cir. 2006) (stating

that if an agency believes that statutory compliance would lead to undesirable

consequences, then it must . . . take its concernsto Congress). Because BLM

admitsthat it never even purported to satisfy the legal prerequisites that Congress

imposed before any wild horse may be removed from anypublic lands,see Fed.

Br. at 23 (explaining that BLM decid[ed]to gather horses on both private and

public land portions of the checkerboard under Section 4, independent of any

public land management responsibilities required by Section 3), the district court

ruling must be reversed.4

4Amici curiae Wyoming Stock Growers Association and Mountain States LegalFoundation asserton the basis of a legislative amendment that was never

enactedthat Congress intended to grant BLM authority under Section 4 to

remove wild horses from public lands. See Amicus Curiae Br. at 18-26. None ofthe Respondents (including BLM) join this argument, and for good reason. Not

only is the legislative history unclear as to why this amendment never made it out

of committee, but it ignores that the proposal was never vetted by the full Congress

(thus defeating any notion of Congressional acquiescence). In any event, theSupreme Court has explained that it would be folly to divine legislative intent from

Congress inaction to adopt a specific amendment, especially whereas hereithas adopted statutory language that is plain on its face. See, e.g., United States v.

Price, 361 U.S. 304, 310-11 (1960) (finding that non-action by Congress affordsthe most dubious foundation for drawing positive inferences, where Congress did

not adopt an express repudiation of [two Ninth Circuit] decisions whenamending a law).



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B. If The Court Reaches Chevron Step 2, BLMs Interpretation Is

Not A Permissible Construction Of The Wild Horse Act.

Although the Court need not reach Chevron Step 2 because Congress spoke

directly to the management and removal of wild horses from all public lands in

Section 3 of the Act, and did not qualify those obligations in any way in Section 4,

should the Court nevertheless deem the statute ambiguous, BLMs construction

cannot withstand scrutiny under Chevron Step 2. As Petitioners have explained,

BLMs action cannot be upheld under Chevron Step 2 for three reasons. See Pet.

Br. at 49-60.

First, BLMspurported statutory interpretation consists of either cursory

statements in the decision document under review that were never subject to notice

and comment procedures, or post hoc rationalizations of agency counsel, neither of

which can be afforded Chevron deference (or any other form of deference) by the

Court. See Mission Group of Kan. v. Riley, 146 F.3d 775, 781-82 (10th Cir. 1998).

Second, BLMs interpretation violates every major canon of statutory construction

by failing to harmonize Sections 3 and 4 and rendering Section 3 inoperable and/or

superfluous in the Checkerboard, and also contravenes the entire purpose the

statute to protect and manage wild free-roaming horses and burros as components

of the public lands. 16 U.S.C. 1333(a). And third, BLMs action is inconsistent

with the agencys ownpast practice and interpretation of the Act, including as



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recently as 2013 when BLM determined that it could reconcile Sections 3 and 4

simultaneously in the public and private lands of the Checkerboard.5

In response, while acknowledging that BLM removed wild horses from

public lands without first determining if such horses were excess animals and

without returning any wild horses to the public lands of these HMAs outside of the

Checkerboard to ensure that BLMs action would achieve appropriate

management levels as prescribedby the Wild Horse Act and the binding RMPs,

16 U.S.C. 1333(b)(2), Respondents nevertheless contend that BLMs

unprecedented treatment of the checkerboard as private landsfor the purposes of

horse removal is reasonable in the unique context presented by the checkerboard.

5 Evidently concerned about Petitioners Chevron Step 2 arguments, Federal

Respondents assert that Petitioners have waived any arguments concerning the

application of Chevron deference to BLMs action. See Fed. Br. at 37-38 & n.21(asserting that Petitioners have not fully brief[ed] the issue and that this Court

should decline to consider this argument). Contrary to the governments

suggestion, Petitioners have long questioned whether BLMs statutory constructioncould pass muster under Chevron Step 2 in light of the fact that it took place in a

cursory decision document without the benefit of public comment and was then

incorporated in myriad post hoc rationalizations of agency counsel. See Pet. Br. at

49-51 & n.10; Docket Entry 67 at 32-33; Docket Entry 74 at 21 & n.11. If anyargument has been waived, it is Federal Respondentsfirst-ever insistence on

appeal that its construction should be afforded Skidmore deference,see Fed. Br.42-43. See Hydro Res., Inc. v. EPA, 608 F.3d 1131, 1146 n.10 (10th Cir. 2010) (en

banc) (EPA has not sought Skidmore deference, and when a party chooses not topursue a legal theory potentially available to it, we generally take the view that it is

inappropriate to pursue that theory in our opinions.).



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Fed. Br. at 22. Even though BLMs action reads Section 3 out of the statute

entirely, Respondents assert that BLM had no choice but to exercise its delegated

authority to resolve its conflicting mandates in this manner. Id.at 23. Indeed,

while recognizing that RSGAs onlyremedy to address horses on itslandsis to

request their removal under Section 4, id.at 29 (emphases added), BLM argues

that treat[ing] the checkerboard as private landsfor the purposes of wild horse

removal is reasonable here because of the purported tension between the

obligations imposed by Sections 3 and 4. Id.at 25, 28. None of these arguments

affords a basis for finding BLMs action permissible under the circumstances.

As a threshold matter, any tension between Sections 3 and 4 has been

manufactured by BLM for the sole purpose of justifying its unprecedented decision

to permanently remove wild horses from public lands without satisfying the legal

prerequisites of Section 3. Not only has BLM neverpreviously deemed there to be

such great tension that the agency must completely abandon its obligation to

protect and manage wild free-roaming horses and burros as components of the

public lands, 16 U.S.C. 1333(a), but in any event Respondents unfounded

tension argument misleadingly presents the Court with a false dichotomy that

BLM must choose either to comply with Section 4 or comply with Section 3. This

assertion is patently inaccurate.



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In reality, as explainedsupra at 2-4, there are actions within BLMs

discretion that can fully serve the purposes of both Sections 3 and 4

simultaneously. Indeed, in response to RSGAs Section 4 request, BLM could

have arranged to remove allwild horses that BLM found on RSGAsprivatelands

at the time of the roundup (without taking any action with respect to horses found

on public lands at that time), thereby fully resolving the pending Section 4 request.

The fact that RSGA, under that scenario, may in the future lodge a new Section 4

request to remove horses that later stray ontoits lands is precisely what

Congress contemplated in the Act. See Roaring Springs, 471 F. Supp. at 523

(holding that [e]ven if . . . [BLM] must go back again to retrieve the animals

each time it receives a new request from a private landowner that is nevertheless

[BLMs] duty prescribed by the statute).

Alternatively, because an agency may never ignore clear statutory

commands in order to enhance the agencys own administrative convenience,see

Pet. Br. at 47-49;see also Elwell v. Okla. ex rel. Bd. Of Regents of Univ. of Okla.,

693 F.3d 1303, 1313 (10th Cir. 2012) (explaining that agencies and courts are

never permitted to disregard clear statutory directions), there are myriad

additional options that could fully effectuate both Sections 3 and 4, if BLM

genuinely views the Checkerboard lands as so intertwined that it is impossible to



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manage them for wild horses separately. Fed. Br. at 26. For example, the

approach adopted by BLM in its 2013 decision-making process concerning the

Adobe Town and Salt Wells HMAsin which BLM planned to gather all wild

horses from both the public and private lands of the Checkerboard pursuant to both

Sections 3 and 4 of the Act, and then to return to the public lands outside the

Checkerboardthe minimum number of wild horses necessary to achieve the

applicable AMLswould have harmonized bothprovisions by fully responding to

RSGAs Section 4 request by immediately removing all horses from RSGAs

private lands (i.e., the only right granted to RSGA by that provision) while at the

same time ensuring that only excess animals are permanently removed from the

publiclands of these HMAs and that all AMLs are achieved on those public lands

(as required by Section 3).6

6It is worth noting that although BLM correctlyproposedpursuant to both

Sections 3 and4to remove al lwild horses from the public and private lands ofthe Checkerboard before achieving the AML on the public lands of these HMAs

outside of the Checkerboard in its 2013 decision,see Pet.App.130-138, when

implementing that decision BLM inexplicablyfailed to remove all of the wild

horses from the Checkerboards private lands. See Fed. Br. at 17 (BLM stoppedthe gather, leaving some horses on the checkerboard to which RSGA later

objected); Wyo. Br. at 13 (stating that for reasons that are unclear, [BLM] leftan amount of wild horses . . . in the checkerboard lands); RSGA Br. at 19 (BLM

did not gather several hundred wild horses from the Checkerboard.). Thus, anysubsequent concerns raised about the 2013 roundup relate to BLMsfailed

implementationrather than the approach itself which, when properly implemented,indisputably harmonizes Sections 3 and 4. See Fed. Br. at 30 (BLM subsequently



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Not only would such action give full effect to both statutory provisions

rather than subverting one at the expense of the otherbut it is also a

commonsense approach because those horses that are relocated to the far reaches

of the public lands outsidethe Checkerboard to achieve AML in these HMAs

would then be much farther from RSGAsprivate lands, thereby significantly

increasing the amount of time before any potential new Section 4 request by

RSGA. See 16 U.S.C. 1333(a) (directing that all [wild horse] management

activities shall be at the minimal feasible level). Thus, given that BLM had

sensible options at its disposal to fully serve both Sections 3 and 4 of the Act

indeed, optionsBLMitself had previously determined were most appropriate to

address the Checkerboardthe agencysdecision to instead permanently remove

all wild horses from the public lands of the Checkerboard under Section 4 without

even purporting to comply with the legal obligations that expressly apply to all

acknowledged that the 2013 gather did not comply with . . . Section 4, because

BLM did not remove all horses from the checkerboard.). On the other hand,

Petitioners are certainly not arguing that BLM should have left wild horses onRSGAs private lands as it did in implementing the 2013 roundup,see Fed. Br. at

31 (asserting that Petitioners claim that result is required), but instead Petitionerscontend that BLM should have adopted an approach in 2014 similar to that

proposed and endorsed in the agencys own 2013 roundup decision that would(and should) have gathered all wild horses from the Checkerboard and thus fully

resolved RSGAs Section 4 request without running afoul of Section 3.



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public land wild horse removals cannot be deemed a permissible or reasonable

construction of the statute. See Michigan v. EPA, 135 S. Ct. 2699, 2708 (2015)

(Chevronallows agencies to choose among competing reasonable interpretations

of a statute; it does not license interpretive gerrymanders under which an agency

keeps parts of statutory context it likes while throwing away parts it does not.).7

7Although, as Petitioners have explained, a consent decree cannot trump statutorylanguage,see Pet. Br. at 57 (citingLocal No. 93, Intl Assn ofFirefighters v.

Cleveland, 478 U.S. 501, 526 (1986), RSGA contends that the 2013 Consent

Decree somehow required BLM to remove all wild horses from the private and

public lands of the Checkerboard without complying with Section 3. See RSGABr. at 17, 42. In reality, however, the language RSGA cites makes crystal clear

that any commitment was limited to RSGAsprivate landsi.e., BLM agreed toremove all wild horses located on RSGAs private lands, includingWyoming

Checkerboard lands, Pet.App.121(emphasis added)because the use of the

comma followed by including specifies that this statement refers only to RSGAsprivate lands (includingRSGAsprivate lands found within the Checkerboard).

Likewise, despite BLMs effort to distance itself from its representations to a

federal court,see Fed. Br. at 40 n.23, BLM has previously stated its viewwhichcontradicts its position in this casethat the 1981 district court orderseparately

required BLM to remove all wild horses from the checkerboardgrazing lands

(which can only be interpreted as private lands) . . . . [to] address[] BLMs duty

under 16 U.S.C. 1334 and to remove all excess horses from within the RockSprings District (which can only be interpreted as public lands) to address[]

BLMs obligations under 16 U.S.C. 1333. Pet.App.218-219 (emphases added).BLMs representations in this respect reinforce that there is nothing in the 1981

court order that allows BLM to avoid itsseparate Section 3 obligations on thepublic lands of these HMAs when addressing its Section 4 obligations on private

lands found therein.



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Indeed, again, not only is BLMs novel interpretation at odds with the

agencys own longstanding practice in interpreting its mandates and their

application to the Checkerboard (e.g., the 2013 roundup decision), but BLMs

construction violates every major canon this Court must use in determining the

reasonableness of BLMs position because it unnecessarily renders a major

statutory provision (Section 3) inoperable, redundant, or superfluous; it fails to

reconcile two purportedly conflicting provisions despite myriad ways of

effectuating both; and it needlessly disregards one standard of compliance in

service of another. See United States v.Power Engg Co., 303 F.3d 1232, 1238

(10th Cir. 2002) ([W]e cannot construe astatute in a way that renders words or

phrases meaningless, redundant, or superfluous.) (citations and quotationmarks

omitted); Watt v. Alaska, 451 U.S. 259, 266-67 (1981) (courts must adopt statutory

interpretations that give effect to each [provision] if we can do so while

preserving their sense and purpose);Morton v. Mancari, 417 U.S. 535, 551

(1974) (When two [provisions] are capable of co-existence, it is the duty of the

courts, absent a clearly expressed congressional intention to the contrary, to regard

each as effective.);Friends of the Earth, 446 F.3d at 145 (holding that where a

statute presents two standards for compliance, [t]he existence of two conditions

does not authorize [the agency] to disregard one of them).



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For all of these reasons, should the Court reach Chevron Step 2 it must reject

BLMs patently unreasonable interpretation of the Wild Horse Act as an

impermissible construction of the statute. See Whitman, 531 U.S. at 485 (holding

that an agency may not construe the statute in a way that completely nullifies

textually applicable provisions meant to limit its discretion).

II. BLMS SUBSTANTIAL REDUCTION OF THESE WILD HORSE

POPULATIONS FAR BELOW AML ON THESE PUBLIC LANDS

FLOUTS THE WILD HORSE ACT, FLPMA, AND THE BINDING

RMPs.

Crucially, Federal Respondents do not disputeand in fact admitthat

BLMs 2014 roundup reduced the wild horse populations on the public lands of

these HMAs far below the AMLs required by the Wild Horse Act and that are set

forth in the binding RMPs that direct BLMs management of these areas of public

lands. See Fed. Br. at 22 (To be sure, the 2014 gather removed horses from

public land portions in the checkerboard, and left those HMAs below their

appropriate management levels established in the HMAs respective resource

management plans.).Nevertheless, despite the fact that BLMs actionof reducing

these populations far below AML stands in flagrant violation of the legally binding

RMPs, as well as the Wild Horse Act and FLPMA, Respondents insist that the

AMLs (and the laws implementing those AMLs) somehow do not apply to the



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public lands involved here simply because BLM labeled its action a Section 4

private land removal. This argument cannot pass muster or common sense.

Federal Respondents assert that BLM can ignore the mandatory AMLs that

apply to these public lands because even though BLM manages wild horses in the

[public land] HMAs in accordance with FLPMA, FLPMA does not apply to

private lands and BLM opted to label this roundup as a private land gather under

Section 4. Fed. Br. at 43. Of course, BLMs argument cannotbe sustained in any

event because BLM was foreclosed from removing anywild horses from these

publiclands pursuant to Section 4. See supra 7-20. Moreover, BLM has also

failed to provide any support for its position that the agency may erroneously apply

a private land removal label to a gather that admittedly involves public lands and

thereby compound its major factual error by then refusing to comply with binding

legal standards that all parties agree doapply to the public lands at issue.

In other words,because it is unassailable that BLMs action involvedpublic

landsand BLM concedes that the binding RMPs and the AMLs established

therein apply to all public lands in these HMAs,see Fed. Br. at 43the fact that

BLM calledthe roundup one that was conducted under Section 4is not a basis

for the agency to jettison its legal obligations that apply to these public lands.

Simply put, if BLM desired to take action with respect to federally protected wild



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horses found on these public lands, it had to at least ensure compliance with the

binding AML standards that the agency acknowledges apply to these lands.8

Accordingly, for many of the same reasons that BLM is not legally

authorized to remove federally protected wild horses from public lands under

Section 4 of the Wild Horse Act, BLM cannot contravene its own governing

AMLs and the laws upon which they are predicated simply because BLM

erroneouslyand unlawfullyinvoked Section 4for this removal that

undoubtedly includedpubliclands. Because BLMs significant reduction in the

wild horse populations on the public lands of these HMAs cannot be squared with

the binding RMPs, FLPMA, or the Wild Horse Act, BLMs action is arbitrary,

8Federal Respondents erroneously assert that without a temporary population

drop below appropriate management levels, BLM could not otherwise complywith its Section 4 obligations. Fed. Br. at 44. But Petitioners have extensivelydispelled any notion that BLM could not have adopted an approach that would

fully comply with the agencys Section 4 obligations while also achieving AML onthe public lands of these HMAs outside of the Checkerboard. See supra at 23-27.

Likewise, although Federal Respondents note that it is possible that the gathercould have resulted in populations above AMLs if more horses had been located in

the solid-block public lands at the time of the gather, Fed. Br. at 30 n.17, theflipside is also true in that it is possible that the gather could have resulted in BLM

permanently removing every single wild horsefrom these HMAs if they happenedto all be in the Checkerboard at the time of the gather, meaning that BLM could

have zeroed out this entire population of federally protected animals without anypublic comment or other transparency in making a fundamental change to the

management of these public lands.



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capricious, an abuse of discretion, or otherwise not in accordance with law. 5

U.S.C. 706(2).9

III.PETITIONERS CLAIMS

ARE JUSTICIABLE.

Nor is there any merit toRespondents assertion that this appeal is moot or

otherwise improperly before the Court. See Fed. Br. at 3-5, 21-22. Although

Petitioners have already submitted extensive jurisdictional briefing refuting these

arguments,see Petitioners Jurisdictional Brief (Pet. Juris. Br.), they provide the

following additional arguments further establishing the Courts jurisdiction.

As a threshold matter, the fact that BLM has now admittedly completed its

remanded decision-making process under the National Environmental Policy Act

(NEPA),see Fed. Br. at 4 & 21, renders Respondents Rule 54(b) and

administrative remand rule arguments moot. Thus, because Respondents

arguments were premised on the existence of an ongoing NEPA process,see Fed.

9Once again, RSGA is simply wrong in asserting that [o]nce RSGA revoked its

consent to tolerate wild horses pursuant to Section 4 of the WHA on October 4,

2010, BLM could no longer enforce the HMA boundaries and AMLs within theCheckerboard. RSGA Br. at22. Not only does BLMwhose decision is under

reviewnot advance that position, but it is beyond legitimate dispute that thesecurrently operative and binding RMPs continue to guide management of the BLM-

administered public lands in these HMAs until and unless BLM completes aformal public decision-making process pursuant to FLPMA changing the HMA

boundaries or modifying the AMLs. See supranote 1.



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Juris. Br. at 15-20, now that the underlying remand proceedings are complete and

the district court has already issued final judgment, there is no basis upon which

this Court could now find that jurisdiction is lacking either by operation of the

administrative remand rule or because the district court abused its discretion under

Rule 54(b). Therefore, in the absence of any ongoing agency proceedings, these

arguments must fail.10

With respect to mootness, Petitioners also extensively briefed that issue in

the district court, which, on the basis of those arguments and detailed declarations

submitted by Petitioners attesting to the injuries BLMs unprecedented action

causes them and the myriad ways in which court-ordered relief could redress their

harms,see Pet.App.53-75, correctly found that this case is not moot. Pet.App.87-

89. Moreover, this case is clearly not moot because there are various forms of

relief available to Petitioners, including, at minimum, (1) returning wild horses to

some of the public lands of these HMAs; (2) remanding to BLM for further

procedural compliance with NEPA, the Wild Horse Act, and/or FLPMA; (3)

enjoining BLMs actions on the public lands of these HMAs until the agency

10As Petitioners previously explained, any challenge to BLMs new NEPAanalysiswhich is not within the scope of the Petition For Review in this case

would have to be pursued in a separate lawsuit. See Pet. Juris. Br. at 13.



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brings itself into legal compliance; and (4) issuing declaratory relief. See

Pet.App.87-89 (finding this case not moot because a determination can be issued

with real-world effect, whether it is an order to return horses [to the range] or to

cure a procedural irregularity). Therefore, as further explained below,the district

courts explicit findings as to the justiciability of thiscase should not be disturbed.

A. This Case Is Not Moot Because Meaningful Relief Remains

Available To Remedy Petitioners Ongoing Injuries Caused By

BLMs Actions.

First, BLM has not even remotely satisfied its burden to demonstrate that it

is impossible for the challenged conductwhich, for the purposes of assessing

jurisdiction, the Court must presume to be unlawful,see Day v. Bond, 500 F.3d

1127, 1137 (10th Cir. 2007)to recur in the future. The Supreme Court has

explained that a case becomes moot only when it is impossible for a court to grant

any effectual relief whatever to the prevailing party. Chafin v. Chafin, 133 S. Ct.

1017, 1023 (2013) (emphases added). Thus, [a]s long as the parties have a

concrete interest, however small, in the outcome of the litigation, the case is not

moot if any relief whatsoever remains available to redress their alleged injuries.

Id. (emphasis added);see also Friends of the Earth v. Laidlaw Envtl. Servs., Inc.,

528 U.S. 167, 189 (2000). It is beyond legitimate disputeas the district court



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foundthat there exists at leastsome relief that this Court may order if Petitioners

prevail on the merits of their claims. Pet.App.87-89.

Respondents wrongly assert that this case is moot for two reasons: (1) the

2014 gather was completed before the district court issued its decision, Fed. Br. at

3, and (2) post-decisional census numbers purportedly show that two of these three

HMAs are now above AML, id.at 4-5. Neither of these arguments can overcome

BLMs heavyburden to demonstrate mootness here.

Respondents first rationale in support of mootnessi.e., that BLM

completed its gather prior to a merits decisioncan easily be rejected. Courts

have consistently found that a wild horse removal itself does not strip courts of all

discretion to issue a remedy to redress ongoing injuries. See Pet.App.87-89;In

Defense of Animals v. U.S. Dept. of the Interior, 808 F. Supp. 2d 1254, 1266 (E.D.

Cal. 2011) (rejecting BLMs argument that all possible [remedial] options are

foreclosed and finding case not moot [b]ecause the wild horses . . . removed

from the range have not been returned and thus the court could provide effective

relief in the form of relocation of the animals to the [HMA] assuming Plaintiffs

prevail). Additionally, in this context, Respondents argument makes no sense

because Petitioners have alleged that BLM failed to follow statutorily required

proceduresunder the Wild Horse Act and FLPMA that could easily be remedied



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by a Court order remanding to BLM for further consideration and analysis or

imposing conditions on the agencys actions.

Thus, this Court has uniformly held that where procedural relief is requested,

the fact that the activity has been completed is no impediment to the Courts

jurisdiction. SeeAirport Neighbors Alliance, Inc. v. United States, 90 F.3d 426,

428-29 (10th Cir. 1996) (explaining that courts stillconsider NEPA claims

concerning completed actions when the court can provide some remedy if it

determines that an agency failed to comply with NEPA, and finding case not

moot because if we find that the Respondents failed to comply with NEPA, we

could order that the runway be closed or impose restrictions on its use); Utah

Envtl. Cong. v. Russell, 518 F.3d 817, 824-25 (10th Cir. 2008) (explaining that

even where it is too late to . . . provide a fully satisfactory remedy the availability

of a partial remedy will prevent the case from being moot) (citations omitted);

Natl Parks Conservation Assn v. FAA, 998 F.2d 1523, 1525 n.3 (10th Cir. 1993)

(finding case not moot after construction was completed when restrictions could be

placed on the use of the project). Hence, as the district court correctly held, the

fact that BLM completed the challenged roundup in 2014 does not moot this case

because various forms of relief remain available. See Pet.App.87-89.



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Second, BLMs reliance on post-decisional census numbers that purport to

show thatsome of these HMAs are above AML at the present time,see Fed. Br. at

4-5, does not remotely divest the Court of jurisdiction. Because there are other

forms of available relief that have nothing to do with ordering BLM to return some

wild horses to the public lands of these HMAs (e.g., injunctive relief, declaratory

relief, or a remand for additional procedural analysis), the Court need not even

reach the question of whether, and how, these new census numbers affect this one

form of relief. In any event, because the 2015 census numbers differ greatly from

BLMs own 2014 estimates of the post-roundup wild horse population numbers

which were also based on the same census techniques and methodologiesthere

are serious questions of material fact that need to be sorted out at the remedies

stage if this Court rules for Petitioners on the merits and considers ordering the

return of some wild horses to the public lands of these HMAs.11

11For example, BLM has not even attempted to explain how its wild horse

population estimatesas set forth in an October 2014 affidavit from an agency

officialhave varied so substantially over a span of only six months. Compare

(Pet.App.51) (estimating in late 2014 that there were 39 horses in the Salt WellsCreek HMA, 91 horses in the Great Divide HMA, and 519 in the Adobe Town

HMA), with Fed. Br. at 19 (estimating in 2015 that there were 619 horses in theSalt Wells Creek HMA, 579 horses in the Great Divide HMA, and 858 horses in

the Adobe Town HMA). Although wild horse populations typically grow at a rateof 10-15% annually, according to BLM these populations have suddenly grown at

a rate of up to 1,500%over the last year. In light of the inherent problems withBLMs census numbers, BLMs off-the-cuff post-decisional census data cannot be



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At any rate, despite Respondents suggestion that the Court could not order

BLM to return any wild horses to the public lands of these HMAs if the

populations are, in fact, above the lower end of the AML, that is not the conclusion

reached by other courts in analogous contexts. For example, BLM specifically

argued that another case was moot because the Wild Horse Act purportedly

prevents the return of wild horses to an overpopulated range.In Defense of

Animals, 808 F. Supp. 2d at 1266. However, the court rejected BLMs argument,

finding that because the plaintiffs were suffering an ongoing injury due to

BLMs action, the court could still provide effective relief in the form of

relocation of the animalsto the [HMA] assuming Plaintiffs win on the merits.

Id.(emphasis added).

The same is true herei.e., there is nothing in the Wild Horse Act

preventing this Court from considering, as one available remedial option, returning

at least some horses to the range to cure BLMs legal violations, irrespective of

whether those HMAs are currently within or above AML. Hence, as the district

court correctly held, this case is clearly not moot. For example, one of the HMAs

at issuethe Great Divide Basin HMAisstill indisputably below the binding

the basis for refusing to provide Petitioners with any of the myriad forms of

available relief.



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AML, as BLM estimates that there are only 579 wild horses there despite a binding

AML range of 610-800. Thus, at minimum, there is no reason why this Court

could not order BLM to return 31 wild horses to the Great Divide Basin HMA in

order to achieve the AML there, should the Court rule for Petitioners on the merits.

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

As explained above, because the Court has various forms of relief available

to remedy Petitioners injuries, the Court need not even reach the question of

whether any mootness exceptions apply. In any event, this case also falls under

well-established exceptions to mootness.

First, BLM cannot overcome its substantial burden of demonstrating that it

is impossible, or even unlikely, that the allegedly unlawful conduct will recur. As

the Supreme Court has explained, [t]heheavy burden of persua[ding] the court

that the challenged conduct cannot reasonably be expected to start up again lies

with the party asserting mootness.Friends of the Earth,528 U.S. at 189. In turn,

a defendant claiming that its voluntary compliance moots a case bears the

formidable burden of showing that it is absolutely clear the allegedly wrongful

behavior could not reasonably be expected to recur. Id. at 190 (emphasis added).

Indeed, BLM made clear in its district court submissions that it cannot

provide the Court with certainty that the challenged conduct will not recur, stating



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that it ispossible a gather may be necessary in theGreat Divide Basin, Salt

Wells Creek, or Adobe Town HMAs; it is likely that no gather will be authorized

for the White Mountain HMA; and if a gather is authorized in 2015 or beyond it

maybe very different from the challenged decisions. Docket Entry 71 at 23-25

(emphases added). In light of these equivocal statements from BLM, the agency

simply cannot meet its formidable burden of showing that it is absolutelyclear

that the challenged conduct will not recur. Friends of the Earth,528 U.S. at 190.

Second, for the same reasons that BLM cannot fully assure this Court that it

will not engage in the same allegedly unlawful conduct during future gathers in

these HMAs, the challenged conduct is also capable of repetition but evading

review. As this Court has explained, this exception applies where: (1) the

duration of the challenged action [is] too short to be fully litigated prior to its

cessation or expiration; and (2) there [is a] reasonable expectation that the same

complaining party will be subjected to the same action again. Buchheit v. Green,

705 F.3d 1157, 1160 (10th Cir. 2012) (citations omitted). Petitioners easily satisfy

both prongs of this test.

There is no question that, if the Court found this case moot without resolving

the merits simply because BLM pressed forward with the removal only weeks after

issuing the Decision Record and before this Court could resolve the merits,



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Petitioners would forever be relegated to seekingpreliminary injunctive relief in

such cases immediately upon issuance of BLM decisions. Thus, they would never

have their day in court for final resolution of the meritsbased on a full

administrative record as required by the Administrative Procedure Act. See 5

U.S.C. 706 (the courts review must be based on the whole record that was

before the agency);Bar MK Ranches v. Yuetter,994 F.2d 735, 739 (10th Cir.

1993) (explaining that APA review is generally based on the full administrative

record that was before all decision makers . . . at the time of the decision). Simply

put, a truncatedpreliminaryproceeding cannot substitute for a well-considered

merits proceeding based on a complete record. As such, especially under the

highly abridged time-frame during which the preliminary injunction proceedings

unfolded in this case, the duration of the challenged action [is] too short to be

fully litigatedprior to its cessation or expiration. Green, 705 F.3d at 1160;see

also Herriman v. Bell, 590 F.3d 1176, 1181-82 (10th Cir. 2010) (applying

mootness exception because full litigation on the merits was simply not possible

before the election) (emphasis added).

As to the second prong, BLMs own equivocal statementswhich failed to

rule out future, similarly flawed removalsshow that there is a reasonable

expectation that Petitioners may be subjected to the same action again. Green,



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705 F.3d at 1160. This point is especially salient here given that BLM has various

contractual obligations under the 2013 Consent Decree with RSGA, which by its

own terms does not terminate until February 2023. See Pet.App.126. Under these

facts, there is a reasonable, and indeed likely, expectation that these issues will

once again surface and that BLM, left to its own devices, will resort to the

unlawful conduct it is defending in this suit. See Bell, 590 F.3d at 1181-82

(applying mootness exception where defendants were uncertain as to future plans

but were considering acting adversely to plaintiffs interests). For all of these

reasons, Respondents have failed to proffer any legal or logical basis for a

mootness finding.

CONCLUSION

For the foregoing reasons and those set forth in Petitioners opening brief,

Petitioners respectfully request that the Court declare BLM in ongoing violation of

the Wild Horse Act, FLPMA, and the RMPs; vacate and remand the 2014 removal

decision; and order other relief the Court deems appropriate.



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Respectfully submitted

/s/ William S. Eubanks II

William S. Eubanks II

Meyer Glitzenstein & Eubanks LLP245 Cajetan Street

Fort Collins, CO 80524(970) 703-6060 / (202) 588-5049 (fax)

[email protected]

Katherine A. Meyer

Meyer Glitzenstein & Eubanks LLP4115 Wisconsin Avenue NW, Suite 210

Washington, DC 20016

(202) 588-5206 / (202) 588-5049 (fax)[email protected]

March 1, 2016 Attorneys for Petitioners-Appellants



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CERTIFICATE OF COMPLIANCE

This brief complies with the type and volume limitations of Fed. R. App. P.

32(a)(7). The brief contains 10,487 words.

/s/ William S. Eubanks II____William S. Eubanks II

Meyer Glitzenstein & Eubanks LLP

245 Cajetan Street

Fort Collins, CO 80524


CERTIFICATE OF SERVICE

I, William S. Eubanks II, hereby certify that on March 1, 2016, I served

copies of AppellantsReply Brief on all counsel of record in this case by way of

electronic mail (ECF filing)in addition to submitting the requisite number of

identical hard copies to the Courtand I further certify that all parties to this case

are registered to receive ECF filings in this matter.

/s/ William S. Eubanks II____William S. Eubanks II

Meyer Glitzenstein & Eubanks LLP245 Cajetan Street

Fort Collins, CO 80524(970) 703-6060 / (202) 588-5049 (fax)

[email protected]



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CERTIFICATE OF PRIVACY REDACTION

I hereby certify that all required privacy redactions have been made and,

with the exception of those redactions, every document submitted in digital form or

scanned PDF format is an exact copy of the written document filed with the Court.

/s/ William S. Eubanks II

William S. Eubanks IIMeyer Glitzenstein & Eubanks LLP

245 Cajetan Street

Fort Collins, CO 80524


CERTIFICATE OF VIRUS SCAN

I hereby certify that the digital submissions have been scanned for viruses

with the most recent version of a commercial virus scanning program (Symantec

Endpoint Protection, Version 12.1) and according to the program, are free of

viruses.

/s/ William S. Eubanks IIWilliam S. Eubanks II

Meyer Glitzenstein & Eubanks LLP

245 Cajetan StreetFort Collins, CO 80524



Filed Reply Brief.pdf

Documents

Transcript of Filed Reply Brief.pdf