Wy Checkerboard Awhpc Resp to Govt Opp to Pi

8/11/2019 Wy Checkerboard Awhpc Resp to Govt Opp to Pi

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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 )

)ROCK SPRING GRAZING ASSOC., )

)

Respondent-Intervener, and ))

STATE OF WYOMING, )

)

Respondent-Intervener. )

REPLY IN SUPPORT OF PETITIONERS MOTION FOR A TEMPORARY

RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION

Case 2:14-cv-00152-NDF Document 33 Filed 08/25/14 Page 1 of 27


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TABLE OF CONTENTS

PAGE

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

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

ARGUMENT .................................................................................................................................. 2

I. THE UNDISPUTED FACTS IN THIS CASE DEMONSTRATE CLEARVIOLATIONS OF NEPA AND THE WHA ...................................................................... 2

A. The Practical Reality of the Checkerboard Does Not Absolve BLM fromAnyof its Obligations Under the WHA, including Section 3. .......................................... 2

B. BLMs Use of Section 4 on the Public Lands in the Checkerboard Sets aDangerous Precedent That is Not Appropriate for a Categorical Exclusion. ............ 8

C. The Unlawful Inclosures Act andLeo SheepDo Not Excuse BLM fromComplying with Section 3 of the WHA. .................................................................. 10

II. PETITIONERS HAVE SHOWN THEYWILL SUFFER IRREPARABLE HARMABSENT A PRELIMINARY INJUNCTION .................................................................. 13

III. THE BALANCE OF THE EQUITIES AND PUBLIC INTEREST WEIGH INFAVOR OF MAINTAINING THE STATUS QUO ........................................................ 17

IV. PETITIONERS SHOULD NOT BE REQUIRED TO POST A SUBSTANTIALBOND ............................................................................................................................... 19

CONCLUSION ............................................................................................................................. 21



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ii

TABLE OF AUTHORITIES

CASES PAGE

Alabama ex rel. Baxley v. U.S. Army Corps of Eng'rs,

411 F. Supp. 1261 (D.C. Ala. 1976) ......................................................................................... 20

Alliance for the Wild Rockies v. Cottrell,632 F.3d 1127 (9th Cir. 2011) .................................................................................................. 14

Amoco Prod. Co. v. Vill. of Gambell,480 U.S. 531 (1987) ............................................................................................................ 15, 16

Animal Legal Def. Fund, Inc. v. Glickman,154 F.3d 426 (D.C. Cir. 1998) .................................................................................................. 14

Animal Welfare Inst. v. Beech Ridge Energy LLC,675 F. Supp. 2d 540 (D. Md. 2009) .......................................................................................... 14

Aspenwood Inv. Co. v. Martinez,355 F.3d 1256 (10th Cir. 2004) .................................................................................................. 8

Balt. Gas & Elec. Co. v. Natural Res. Def. Council,462 U.S. 87 (1983) .................................................................................................................... 18

BP Am., Inc. v. Okla. ex rel. Edmondson,613 F.3d 1029 (10th Cir. 2010) .................................................................................................. 3

Camfield v. United States,167 U.S. 518 (1897) ............................................................................................................ 11, 12

Cloud Found. v. BLM,802 F. Supp. 2d 1192 (D. Nev. 2011) ....................................................................................... 18

Colo. Wild v. U.S. Forest Serv.,299 F. Supp. 2d 1184 (D. Colo. 2004) ...................................................................................... 20

Colo. Wild, Inc. v. U.S. Forest Serv.,

523 F. Supp. 2d 1213 (D. Colo. 2007) ...................................................................................... 19

Conn. Nat'l Bank v. Germain,503 U.S. 249 (1992) .................................................................................................................... 4

Davis v. Mineta,302 F.3d 1104 (10th Cir. 2002) .......................................................................................... 19, 20



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iii

Erlenbaugh v. U.S.,409 U.S. 239 (1972) .................................................................................................................... 4

Fallini v. Hodel,783 F.2d 1343 (9th Cir. 1986) ................................................................................................ 6, 7

Fund for Animals v. Clark,27 F. Supp. 2d 8 (D.D.C. 1998) ................................................................................................ 13

Fund for Animals v. Norton,281 F. Supp. 2d 209 (D.D.C. 2003) .................................................................................... 13, 16

Fund for Animals, Inc. v. Espy,814 F. Supp. 142 (D.D.C. 1993) ......................................................................................... 13, 16

Greater Yellowstone Coal. v. Flowers,

321 F.3d 1250 (10th Cir. 2003) .......................................................................................... 13, 15

Habitat Education Center v. U. S. Forest Serv.,607 F.3d 453 (7th Cir. 2010) .................................................................................................... 19

Habitat for Horses v. Salazar,745 F. Supp. 2d 438 (S.D.N.Y. 2010)....................................................................................... 18

In Def. of Animals v. Salazar,675 F. Supp. 2d 89 (D.D.C. 2009) ............................................................................................ 18

In Def. of Animals v. U.S. Dep't of Interior,737 F. Supp. 2d 1125 (E.D. Cal. 2010)..................................................................................... 18

Japan Whaling Ass'n v. Am. Cetacean Soc'y,478 U.S. 221 (1986) .................................................................................................................. 13

League of Wilderness Defendersv. Zielinski,187 F. Supp. 2d 1263 (D. Or. 2002) ......................................................................................... 20

Leo Sheep Co. v. United States,440 U.S. 668 (1979) ............................................................................................................ 10, 12

Lujan v. Defenders of Wildlife,504 U.S. 555 (1992) .................................................................................................................. 15

Mountain States Legal Found. v. Hodel799 F.2d 1423 (10th Cir. 1986) .............................................................................................. 3, 7



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iv

Natural Res. Def. Council v. Morton,337 F. Supp. 167 (D.D.C. 1971) ............................................................................................... 20

Ohio Valley Envtl. Coal. v. Horinko,279 F. Supp. 2d 732 (S.D.W.V. 2003) ........................................................................................ 5

Patriot, Inc. v. U.S. Dep't of Hous. and Urban Dev.,963 F. Supp. 1 (D.D.C. 1997) ................................................................................................... 19

Red Wolf Coal v. N.C. Wildlife Res. Comm'n,2014 WL 1922234 (E.D.N.C. May 13, 2014) .................................................................... 13, 16

Roaring Springs Assocs. v. Andrus,471 F. Supp. 522 (D. Or. 1978) .............................................................................................. 6, 7

Rock Springs Grazing Ass'n v. Salazar,

935 F. Supp. 2d 1179 (D. Wyo. 2013) ........................................................................ 1, 3, 4, 7, 8

San Luis Valley Ecosystem Council v. U.S. Fish & Wildlife Serv.,657 F. Supp. 2d 1233 (D. Colo. 2009) ...................................................................................... 19

Save Strawberry Canyon v. Dep't of Energy,613 F. Supp. 2d 1177 (N.D. Cal. 2009) .................................................................................... 20

Scherr v. Volpe,466 F.2d 1027 (7th Cir. 1972) .................................................................................................. 20

Sierra Club v. Block,614 F. Supp. 488 (D.D.C. 1985) ............................................................................................... 20

Sierra Club v. Martin,933 F. Supp. 1559 (N.D. Ga. 1996) .......................................................................................... 14

United States ex rel. Bergen v. Lawrence,848 F.2d 1502 (10th Cir. 1988) .......................................................................................... 12, 18

United States v. AdameOrozco,607 F.3d 647 (10th Cir. 2010) .................................................................................................... 3

United States v. Ron Pair Enters., Inc.,489 U.S. 235 (1989) .................................................................................................................... 3

United States v. Ryan,894 F.2d 355 (10th Cir. 1990) .................................................................................................... 5



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v

Utah Envtl. Cong. v. Bosworth,443 F.3d 732 (10th Cir. 2006) ................................................................................................ 8, 9

Via Christi Reg'l Med. Ctr., Inc. v. Leavitt,509 F.3d 1259 (10th Cir. 2007) .................................................................................................. 8

W.V. Highlands Conservancy v. Island Creek Coal Co.,441 F.2d 232 (4th Cir. 1971) .................................................................................................... 20

Wilderness Soc'y v. Tyrrel,701 F. Supp. 1473 (E.D. Cal. 1988).......................................................................................... 20

Wilderness Watch v. Mainella,375 F.3d 1085 (11th Cir. 2004) .............................................................................................. 5, 9

Winter v. Natural Res. Def. Council,

555 U.S. 7 (2008) ...................................................................................................................... 16

STATUTES

5 U.S.C. 553 ................................................................................................................................. 8

16 U.S.C. 1331 ........................................................................................................................... 12

16 U.S.C. 1333 ..................................................................................................................... 1, 3, 4

16 U.S.C. 1334 ......................................................................................................................... 1, 3

43 U.S.C. 1061 ........................................................................................................................... 11

RULES AND REGULATIONS

Federal Rule of Civil Procedure 65(c) .................................................................................... 19, 20

43 C.F.R. 46.215(e)...................................................................................................................... 9



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INTRODUCTION

None of the parties in this case disputes the seminal fact that more than half of the

checkerboard remains under federal ownership, while the remainder is held privately.Rock

Springs Grazing Assn v. Salazar, 935 F. Supp. 2d 1179, 1182 (D. Wyo. 2013) (RSGA)

(emphasis added). Nor does any party dispute that the challenged roundup will remove allwild

horses from the Checkerboard portion of three herd management areas (HMAs) without regard

to whether those horses are on public or private land at the time of the roundup. While in one

breath the respondents admonish Petitioners for purportedly treating the Checkerboard as

consisting solely of public land, in the next they insist that the Checkerboard must be treated

solely as private land. However, in the words of the Federal Respondents, [t]here are two

distinct obligations under the Wild Horse Act, one for public lands and one for private lands.

Docket Entry (DE) 30 at 1. Before removing allof the wild horses from the Checkerboard,

BLM must comply with both obligations.

Federal Respondents marginalize this crucial uncontroverted detail by asserting, without

support, that [t]he fact that some public lands are involved in the gather is irrelevant. DE 30 at

20. To the contrary, BLMs invocation of Section 4 of the Wild Free-Roaming Horses and

Burros Act (WHA), 16 U.S.C. 1334, topermanentlyremove wild horses frompublicland is

anything but irrelevant; it is a precedent-setting decision that contradicts the plain language of

the statute and jettisons the agencys own policies and long-standing practice.Neverbefore has

BLM managed the Checkerboard as if it were entirely private land. By doing so now, BLM has

in essence handed over thepublic Checkerboard lands to private ownership.

Contrary to the respondents dramatic assertions, ignoring BLMs mandatory obligations

under Section 3 of the WHA, 16 U.S.C. 1333, with respect to the public land portions of the

Checkerboard is not[t]he only way to accomplish the removal of wild horses from private



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lands in this area. DE 29 at 10. In fact, when BLM conducted the 2013 Adobe Town/Salt Wells

roundup pursuant to the Consent Decree less than a year ago, the agency managed to comply

with bothits Section 3 and Section 4 obligations under the WHA. Thus, as BLM well knows,

there isan entirely reasonable and lawful way for the agency to proceed in this case. All

Petitioners are asking from this Court is to require BLM to comply with the WHA and the

National Environmental Policy Act (NEPA), 42 U.S.C. 4321-4370f, with respect to the

public land portions of the Checkerboard, as BLM itselfhas recognized is required by law.1

ARGUMENT

I. THE UNDISPUTED FACTS IN THIS CASE DEMONSTRATE CLEARVIOLATIONS OF NEPA AND THE WHA

A. The Practical Reality of the Checkerboard Does Not Absolve BLM fromAny

of its Obligations Under the WHA, including Section 3.

The thrust of the respondents arguments can be summed up as follows: because of the

checkerboards unique land ownership pattern . . . BLM must manage wild horses within the

checkerboard portion of the affected HMAs as if they are all occupying private range. DE 29 at

10 (emphasis added). Because the Checkerboard lands do not consist solely of private lands, and

more than half of the Checkerboard is in fact federalpublic land, there is absolutely no legal

authority that allows BLM to treat the public portion of the Checkerboard as private land. If

BLM wants to be excused of its obligations under Section 3 of the WHA on the public land

portions of the Wyoming Checkerboard, then the only mechanism for doing so is by obtaining an

exemption from Congress. Until such time, BLM has an unequivocal statutory duty when

permanently removing anywild horses from federalpubliclands to comply with Section 3 of the

1On August 21, 2014 within 24 hours of respondents filing their respective oppositions Petitioners filed a request with the Court seeking to consolidate their reply brief with respect toeach of the oppositions into a single reply brief of up to 30 pages consistent with Petitionersunderstanding of Local Rule 7. See DE 32. Because the Court has not yet ruled on that motionand Petitioners reply brief is now due, Petitioners hereby assure the Court that the instant briefcomports with the relief sought in that motion, as well and Petitioners reading of the local rules.



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WHA. Simply put, management challenges, practical realities, and administrative convenience

do not give an agency the authority to trump the express dictates of Congress.2

As the Court of Appeals has made clear, when the statutes language is plain and plainly

satisfied, the sole function of the courts can only be to enforce it according to its terms.

United States v. AdameOrozco,607 F.3d 647, 652 (10th Cir. 2010) (quoting United States v.

Ron Pair Enters., Inc.,489 U.S. 235, 241 (1989));BP Am., Inc. v. Okla. ex rel. Edmondson, 613

F.3d 1029, 1033-34 (10th Cir. 2010) (To operate as the Attorney General would have it, [the

statute] would have to read very differently than it does . . . .). The plain language of the WHA

is clear: Section 3, 16 U.S.C. 1333, directs BLMs actions on public lands, while Section 4, 16

U.S.C. 1334, guides BLMs actions on private land. SeeDE 17-1 at 3-5; DE 30 at 1-2. As

noted, there is no dispute that the Checkerboard lands at issue contain both public and private

land. SeeRSGA,935 F. Supp. 2d 1179, 1182;see also, July 18, 2014 Categorical Exclusion

(CE) at 1 (Petrs Ex. E, DE 17-6). Thus, just as BLM cannot operate solely under Section 3,

DE 30 at 20-21, the agency cannot operate solely under Section 4 when removing horses from a

mix of public and private lands. Under these circumstances, the plain language of the WHA

compels compliance with bothdirectives.3

2RSGA asserts that because BLM is forced to manage the alternating land pattern of theCheckerboard as a single unit, Petitioners concern with the public lands of the Checkerboard ismisplaced. DE 31 at 13. Notably, the only citation RSGA could muster in support of thisassertion is a dissenting opinion inMountain States Legal Foundation v. Hodel, 799 F.2d 1423,1434-35 (10th Cir. 1986). Furthermore, nothing in this Courts recognition that the landmanagement challenges presented by checkerboard ownership . . . do not deprive RSGA of itsrights as a private landowner under Section 4 of the Wild Horses Act,RSGA, 935 F. Supp. 2d at1187-88, confers on BLM carte blanche to disregard the massive public land portion of theCheckerboard. Rather, just as the challenges of the Checkerboard do not allow BLM to ignoreSection 4 of the WHA on private lands, they similarly do not allow BLM to ignore Section 3 onpublic lands.

3Respondents chastise Petitioners as attempt[ing] to muddle [the Section 4] directive byfocusing on the alternating public land sections in the Checkerboard, DE 31 at 13, ignor[ing]Section 4 of the [WHA], DE 30 at 19, and ignor[ing] the unique nature of the Wyoming



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Although it is undisputed that during this proposed roundup wild horses will also be

removed [from] the public land portions of the checkerboard, Petrs Ex. K at 3 (DE 17-12), the

respondents position is that because the Checkerboard pattern make[s] it infeasible to conduct

a removal of wild horses only from the private land sections, treating the Checkerboard as

wholly private land is the onlyway for the agency to comply with Section 4. DE 30 at 18. This

newly minted interpretation of the WHA cannot withstand scrutiny for two key reasons.

First, Congress did not create an exception to Section 3 of the WHA for wild horse

management in the Wyoming Checkerboard due to the unique challenges presented by that land

management pattern. See 16 U.S.C. 1333 (referring to the public lands under BLM

jurisdiction where wild horses reside seven distinct times, with no mention of any exceptions).

Rather, by its unambiguous terms, Section 3 of the WHA applies to allpublic lands, not just

non-Checkerboard public lands or in the words of BLM the solid-block public lands. DE 30

at 16 n.5. The absence of any exception is especially significant given that the Checkerboard was

established by Congress in 1862, well before it enacted the WHA in 1971. See RSGA, 935 F.

Supp. 2d at 1182 (The checkerboard scheme of land ownership is a result of the Union Pacific

Act passed in 1862.);see also Erlenbaugh v. U.S., 409 U.S. 239, 244 (1972) (explaining that

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

all previous statutes on the same subject.) (citation omitted).

checkerboard, which demands that the BLM comply with the removal requirements of the[WHA] by generally managing wild horses in the areas as if they were on private land. DE 29 at12. Yet, the respondents narrow focus on Section 4 has led themto completely ignore BLMsother obligations under the WHA namely the agencys duties on the public land portions of theCheckerboard. See, e.g., DE 30 at 16 (explaining that BLM does not have to comply with theBLM Manual requiring preparation of an EA before a roundup because the gather in this casewas undertaken pursuant to Section 4 of the [WHA].). Given that BLM has candidly admittedthat wild horses will in fact be removed from the public lands within the Checkerboard, theagencys statutory duties under Section 3 have invariably been triggered.



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Moreover, the Supreme Court has stated time and again that courts must presume that a

legislature says in a statute what it means and means in a statute what it says. . . . Conn. Natl

Bank v. Germain, 503 U.S. 249, 253-54 (1992) (citation omitted). As a result, BLM is not at

liberty to pencil in a managing the Checkerboard is difficult exception to Section 3 of the

WHA. See, e.g.,United States v. Ryan, 894 F.2d 355, 357 (10th Cir. 1990) (We believe that the

statute means what it says, and we are unwilling to read into it a requirement which would

undermine the statutes clear purpose.); Wilderness Watch v. Mainella, 375 F.3d 1085, 1092

(11th Cir. 2004) (Absent these explicit statutory instructions, however, [an exception] may not

be inferred from the Wilderness Act nor grafted onto its general purpose.). Indeed, [t]he

agency charged with implementing the statute is not free to evade the unambiguous directions of

the law merely for administrative convenience. Ohio Valley Envtl. Coal. v. Horinko, 279 F.

Supp. 2d 732, 748 (S.D.W.V. 2003) (citation and quotation marks omitted). Thus, until Congress

relieves BLM from its Section 3 mandates on the particular public lands in the Checkerboard, the

agency simply does not have the statutory authority to generally manage[] wild horses in the

[Checkerboard] as if they were on private land. DE 29 at 12.

Second, BLMs drastic and unprecedented course of action in this case is notthe only

way for the agency to comply with Section 4 of the WHA and the Consent Decree. DE 29 at 10;

DE 30 at 18-19 (Given BLMs legal obligations to remove the horses and the practical

limitations on removing horses from private lands BLMs [action] was wholly reasonable.). In

fact, BLMs 2013 Adobe Town/Salt Wells roundup complied with NEPA, Sections 3 and4 of

the WHA, and the Consent Decree. See2013 Adobe Town Decision Record and FONSI (Petrs

Ex. H, DE 17-9); 2013 Adobe Town EA at 4 (Petrs Ex. G, DE 17-8) (BLM explaining that the

roundup was necessary to comply with both Sections 3 and 4 of the WHA and the Consent

Decree). As explained in Petitioners opening brief, the 2013 Adobe Town roundup proceeded



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consistent with BLMs written policies and longstanding practice; BLM made the required

excess determination, ensured that the permanent removal of horses would not reduce

population numbers below the appropriate management levels, and prepared an EA under NEPA

to fully consider and analyze the impacts of the action to wild horses and other natural resources.

SeeDE 17-1 at 9-11.4

According to BLM, the main reason the agency deviated from the lawful and

longstanding process it used in the 2013 Adobe Town/Salt Wells Creek roundup was that

RSGA promptly objected, complaining that BLM violated the Consent Decree by returning

[non-excess] gathered horses to the range because [those horses] would invariably return to

RSGAs private lands. DE 30 at 9;see alsoGov. Ex. 2 at 2 (DE 30-1 at 12) (RSGA

complaining that by relocating some wild horses from the Checkerboard to the public land block

in order to achieve low AML, BLM ensured the prompt return of these wild horses to the

Checkerboard and the sabotage of the Consent Decree.). In essence, BLM admits that it has

chosen to ignore its explicit Section 3 obligations solely because of RSGAs concern that some

wild horses may, in the future, stray back onto its private lands.

However, it is well settled that BLM does nothave a duty under Section 4 of the WHA

nor is authorized topreemptivelyprevent wild horses from straying onto private land. See, e.g.,

Fallini v. Hodel, 783 F.2d 1343, 1346 (9th Cir. 1986) (We fail to find any suggestion by

Congress or otherwise that the BLM ha[s] a duty, ministerial or prescribed, to prevent straying of

wild horses onto private land.); id.(Section 4 of the Act clearly contemplates the possibility

that wild horses may stray onto private lands.);Roaring Springs Assocs. v. Andrus, 471 F. Supp.

4It is worth noting that the Petitioners did not challenge BLMs decision for the 2013Adobe Town/Salt Wells roundup. If BLM had followed that same process here and ensuredcompliance with applicable laws consistent with the agencys longstanding practice whenpermanently removing any wild horses from public land this lawsuit could have been avoided.



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522, 523 (D. Or. 1978) (Even if geography and the habit of these wild free-roaming horses

dictate that the Secretary of the Interior must go back again to retrieve the animals, that is

nevertheless his duty prescribed by the statute.) (emphasis added).5

Nor does the Consent Decree impose any obligation on BLM to prevent horses from

straying onto RSGAs private land. SeeConsent Decree (Petrs Ex. F, DE 17-7). RSGAs

unreasonable interpretation of the Consent Decree to create such an obligation ignores the fact

that wild horses are wildlife.Mountain States Legal Found., 799 F.2d at 1426 ([W]ild horses

and burros are no less wild animals than are the grizzly bears. . . .). Because the Checkerboard

lands are not fenced, wild horses, other wildlife, and even RSGAs domesticated livestock move

freely throughout this entire area. See DE 30 at 6. It is impossible for BLM to prevent wildlife

horses included from everstraying onto a parcel of unfenced private land in the Checkerboard.

Thus, it simply cannot be the case that the Consent Decree requiresBLM to disregard NEPA,

violate Section 3 of the WHA, and abandon the agencys own written policies and applicable

resource management plans in a futile attempt to achieve this impossible objective at the behest

of a private party.

6

5Along these same lines, Federal Respondents argue that Section 4 of the WHA cannotconceivably be read to require BLM to return those horses removed from private land back to thepublic lands from which they strayed because [t]his exercise in futility would ensure only onething a perpetual request from RSGA to continually remove wild horses that drift back ontotheir lands and that [o]bviously, Congress did not envision such a scenario. DE 30 at 20 n.7.Courts have rejected this argument.Andrus, 471 F. Supp. at 523 (Even if geography and thehabit of these wild free-roaming horses dictate that the Secretary of the Interior must go backagain to retrieve the animals, that is nevertheless his duty prescribed by the statute.) (emphasis

added);see also Fallini, 783 F.2d at 1346 (explaining that while Section 4 did notimpose a dutyto prevent wild horses from straying onto private land, the provision was intended by Congressto benefit the public by keeping the animals on public lands). This line of cases also supportsthe Petitioners position that protecting wild horses on public lands is in the public interest.Id.

6Petitioners do not believe that this is what the Court had in mind when it approved theConsent Decree finding, among other things, that [u]nder the terms of the Consent Decree . . .BLM has no obligationto prepare to remove wild horses from the Wyoming Checkerboardlands until the population exceeds a certain level.RSGA, 935 F. Supp. 2d at 1188 n.13



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B. BLMs Use of Section 4 on the Public Lands in the Checkerboard Sets a

Dangerous Precedent That is Not Appropriate for a Categorical Exclusion.

Federal Respondents concede that the categorical exclusion invoked in this case, 516 DM

11.9D(4), applies to the removal of horses fromprivate lands. DE 30 at 17 (emphasis added);

see alsoDept of Interior Manual, BLM 516 DM 11 at 8 (Petrs Ex. C, DE 17-4). In addition, no

one disputes that the proposed roundup will result in the removal of allwild horses from both

publicand private lands within the Checkerboard portion of three HMAs. DE 30 at 20-21; DE 31

at 1; DE 29 at 10. Accordingly, the plain language of the categorical exclusion invoked by BLM

simply does not apply to the current situation. This should be the end of the matter.7

However, in an attempt to bypass NEPA review, BLM appears intent on shoving the

complicated square peg that is the Checkerboard into the simple round hole that is the agencys

categorical exclusion for the removal of horses from solely private lands. Yet, not only is the

invoked categorical exclusion plainly inapplicable, but BLM has neverbefore invoked any

categorical exclusion on the Checkerboard lands and has never used thiscategorical exclusion to

effectuate removal of wild horses frompubliclands. Thus, even if the categorical exclusion

(emphasis added). Moreover, the Court did not reach all of the concerns raised in that caseregarding the Consent Decrees impact on BLMs compliance with the WHA and NEPA becauseat [that] juncture, . . . the issues raised by the Intervenors as to the effect of the Consent Decreeon the agencys statutory obligations were not, in the Courts opinion, ripe for review.Id.at1190. Now, however, BLMs implementation of the Consent Decree is very clearly impactingBLMs compliance with the WHA and NEPA.

7Federal Respondents argument that the agencys decision to invoke this plainlyinapplicable categorical exclusion was wholly reasonable, and thus entitled to significantdeference, falls flat. DE 30 at 18-19. Even under the deferential arbitrary and capricious standardof review, the Court must be careful not to disrupt the plain language of the regulation itself.Utah Envtl. Cong. v. Bosworth, 443 F.3d 732, 743 (10th Cir. 2006). The Court cannot torturethe language of this categorical exclusion to reach the result the agency wishes.AspenwoodInv. Co. v. Martinez, 355 F.3d 1256, 1261 (10th Cir. 2004) (citation omitted);see alsoViaChristi Reg'l Med. Ctr., Inc. v. Leavitt, 509 F.3d 1259, 1273 (10th Cir. 2007) (The agency, afterall, could easily have drafted language to achieve the result which it now advocates but did notdo so. If the Secretary wants to take a position that is inconsistent with existing regulations, thenthe Secretary must promulgate new regulations under the notice-and-comment provisions of theAPA, 5 U.S.C. 553.) (internal citations and quotation marks omitted).



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applied which it clearly does not it would nevertheless be an inappropriate vehicle in this

case for dispensing with NEPA review because the challenged decision creates a potential

precedent for future action and the decision threatens to violate the WHA. 43 C.F.R.

46.215(e), (i) (listing extraordinary circumstances requiring NEPA analysis). The presence of

even one extraordinary circumstance precludes the use of a categorical exclusion. SeeUtah

Envtl. Cong. v. Bosworth, 443 F.3d 732, 736 (10th Cir. 2006) (Federal law limits categorical

exclusions in one critical respect: a proposed action is precluded from categorical exclusion if

extraordinary circumstances exist.);Mainella, 375 F.3d at 1095-96 (finding a categorical

exclusion inapplicable because the decision creates a potential precedent for future action and

. . . the policy threaten[s] to violate the Wilderness Act.) (citations omitted).

Federal Respondents assert that BLM does rely on categorical exclusions for gathers

when appropriate to do so, but provide the Court with only oneexample. DE 30 at 17.

Conspicuously, however, the only categorical exclusion BLM could point to in its more than four

decades of wild horse management was in connection with the removal of sixty wild horses

solelyfromprivatelands in Utah, which is nothing like the unique and complicated public-

private land management scheme that is the Wyoming Checkerboard. See Gov. Ex. 5 at 4 (DE

30-1 at 47). In other words, BLM has never invoked anycategorical exclusion much less the

one relied on here,see516 DM 11.9D(4) (Petrs Ex. C at 8, DE 17-4) to remove a single wild

horse frompublic land, whether in the Checkerboard or elsewhere.

This is not surprising because Federal Respondents admit that with the challenged

decision at issue in this case, BLM significantly departed, with little explanation, from its

longstanding approach to removing wild horses from within the Wyoming Checkerboard. DE 30

at 9; DE 17-1 at 14-17;see alsoDecision Record at 2 (Petrs Ex. K, DE 17-12). BLMs new

method of managing all of the federally protected public lands within the Checkerboard as if



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they were RSGAs private land is precisely the type of drastic and legally questionable agency

action thatshouldtrigger an extraordinary circumstances exception to a categorical exclusion.

While Federal Respondents assert that they considered the twelve (12) extraordinary

circumstances identified in the agencys NEPA implementing procedures, DE 30 at 13, BLMs

conclusory statements in the Categorical Exclusion can hardly be said to address the undeniably

far-reachingprecedentof the agencys ill-explained shift from its longstanding management

approach. CE at 7 (Petrs Ex. E, DE 17-6) (deciding that there is no potential precedent because

[t]he removal is being conducted in accordance with the 2013 Consent Decree and Section 4 of

the WHA).8

Accordingly, BLMs use of an unmistakably inapplicable categorical exclusion for a

decision that significantly alters the agencys management approach to the Checkerboards

public lands is arbitrary, capricious, and not in accordance with law.

C. The Unlawful Inclosures Act andLeo SheepDo Not Excuse BLM from

Complying with Section 3 of the WHA.

Respondents assert that BLM has not violated any specific WHA mandates because

BLMs decision in this case was undertaken pursuant to Section 4 of the Wild Horses Act not

Section 3. DE 30 at 16; DE 31 at 14; DE 29 at 8. Thus, according to respondents, the violations

of the WHA identified by Petitioners are not relevant to Section 4 gathers. DE 31 at 14. In

turn, the fundamental question for this Court is whether BLM can exempt itself from the clear

dictates of the WHA by managing the approximately one million acres of federally protected

public land within the Wyoming Checkerboard solely as private land under Section 4 of the

WHA. Federal Respondents argue that the answer to this question must be yes because of the

8Federal Respondents assert that BLM relied on a team of 11 separate specialists andresource managers when conducting the categorical exclusion analysis. DE 30 at 13-14. This islegally irrelevant. No number of specialists can change the fact that, on its face, this categoricalexclusion plainly does not apply to public land.



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Unlawful Inclosures Act of 1885 (UIA), 43 U.S.C. 1061-1065, and the Supreme Courts

decision inLeo Sheep Co. v. United States, 440 U.S. 668 (1979). DE 30 at 3-4, 19-21. The UIA

andLeo Sheep, however, in no way support BLMs unprecedented decision to surrender the

management of public lands in the Checkerboard to private interests.9

To begin with, the UIA not only prohibits the physical enclosure of public lands, but

also any assertion of a right to the exclusive use and occupancy of any part of the public lands

. . . . 43 U.S.C. 1061. Federal Respondents focus on the former prohibition in asserting that

the UIA prevents RSGA from fencing wild horses out of its private lands within the

Checkerboard. DE 30 at 20. Yet, Federal Respondents ignore the far more salient provision for

the Courts purposes, which is that no party RSGA included may make any assertion of

right to the exclusive use of the public land portions of the Checkerboard.Id. However, that is

preciselywhat is happening here, as RSGA is demanding that BLM remove all wild horses on

the Checkerboard, and that evenpublicCheckerboard lands are no longer available to wild

horses. Gov. Ex. 2 at 1 (DE 30-1 at 11). The result that RSGA seeks and which BLM purports

to achieve with the proposed roundup cannot be reconciled with the plain text of the UIA, not

to mention the WHA.10

9BLMs self-serving characterization of the removal of allwild horses within theCheckerboard portion of three HMAs as a Section 4 gather in no way shields BLM fromcomplying with Section 3 of the WHA since the roundup undeniably involves public land.

10The Supreme Court has made it clear that [s]o long as the individual proprietorconfines his inclosure to his own land, the government has no right to complain except when,under the guise of inclosing his own land, he builds a fence which is u[s]eless for that purpose,and can only have been intended to inclose the lands of the government. Camfield v. UnitedStates, 167 U.S. 518, 528 (1897). Thus, RSGA could certainly fence its own land if it so desired,but it refuses to do so presumably because it wishes to take advantage of federal public lands inthe Checkerboard by grazing its livestock on these lands that are specifically protected byCongress for wild horse use.



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Furthermore, Federal Respondents reliance on the UIA as a defense for BLMs

treatment of the public lands in the Checkerboard as private lands offends the express purpose of

the statute, which is to prevent private interests from infringing on the lawful use of public lands.

In Camfield v. United States, 167 U.S. 518, 524 (1897), the Supreme Court held that the UIA

was necessary to protect public lands in the Checkerboard because it would be recreant to its

duties as trustee for the people of the United States to permit any individual or private

corporation to monopolize [the public lands] for private gain, which is precisely what BLM and

RSGA seek to do here. InLeo Sheep, the Supreme Court further explained that the UIA was

enacted in response to the range wars:

Cattlemen . . . grazed their herds freely on public lands with the FederalGovernments acquiescence. To maintain their dominion over the ranges, [they]. . . gain[ed] control of water sources in the range lands. With monopoly controlof such sources, the cattlemen found that ownership over a relatively small areamight yield effective control of thousands of acres of grassland. Anotherexclusionary technique was the illegal fencing of public lands which was often theproduct of the checkerboard pattern of railroad grants.

440 U.S. at 683 (emphasis added). The Court of Appeals in United States ex rel. Bergen v.

Lawrence, 848 F.2d 1502, 1509 (10th Cir. 1988), held that the UIA prohibited the denial of

access to public lands for lawful purposes which includes wild horses and that

provid[ing] food and habitat for fish and wildlife was a lawful purpose of public land protected

by the UIA. See also16 U.S.C. 1331 (wild horses must be considered as an integral part of

the natural system of the public lands).

In short, the UIA andLeo Sheepprovide no shelter for BLMs treatment of public land as

private land in carrying out its legal obligations under the WHA. To the contrary, those

authorities fully supportPetitionersposition in this case.11

11Federal Respondents argument that Petitioners are seeking an implied reservation onRSGAs lands just because they neighbor federal land gravely mischaracterizes Petitionersposition. DE 30 at 20. The core of Petitioners position is simple: BLM cannot choose to managethe Checkerboard as either public or private land. By treating the Checkerboard as only private



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II. PETITIONERS HAVE SHOWN THEYWILL SUFFER IRREPARABLE HARM

ABSENT A PRELIMINARY INJUNCTION

Respondents argue that Petitioners have not demonstrated irreparable harm because BLM

will not remove wild horses from non-Checkerboard lands within the affected HMAs, and

therefore Petitioners will still have opportunities to view and enjoy the remaining wild horses on

these other lands. DE 30 at 23; DE 31 at 16-17; DE 29 at 13-14 (asserting that Petitioners harm

is insubstantial because they do not involve a total deprivation of [their] interests). This

argument grossly distorts the irreparable harm standard and threatens to erect an insurmountable

burden for anyparty seeking an injunction to protect an interest in the environment and wildlife.

To begin with, Respondents argument completely disregards decades of preliminary

injunction case law in the context of potential harm to wildlife. For example, as is well

established in the applicable case law, because the fact thatsomewildlife will remain after the

challenged federal action is implemented is not a barrier to establishing irreparable harm. See,

e.g.,Fund for Animals, Inc. v. Espy, 814 F. Supp. 142, 151 (D.D.C. 1993) (finding irreparable

harm from the proposed removal of ten to sixty bison from a herd);Fund for Animals v. Clark,

27 F. Supp. 2d 8, 9, 14 (D.D.C. 1998) (finding irreparable injury from thinning of bison herd);

Fund for Animals v. Norton, 281 F. Supp. 2d 209, 221-22 (D.D.C. 2003) (finding irreparable

harm caused by reduction in mute swan population);Red Wolf Coal. v. N.C. Wildlife Res.

Commn, No. 2:13CV60-BO, 2014 WL 1922234, at *9 (E.D.N.C. May 13, 2014) (finding

decline in red wolf population constituted irreparable injury);see also Greater Yellowstone Coal.

v. Flowers, 321 F.3d 1250, 1256 n.6 & 1257 (10th Cir. 2003)(holding that irreparable harm does

not require the elimination of entire species);Japan Whaling Assn v. Am. Cetacean Socy, 478

land, BLM violates Section 3 of the WHA. On the other hand, by treating the Checkerboard asonly public land, BLM arguably violates Section 4 of the WHA. Therefore, as it did with the2013 Adobe Town/Salt Wells roundup, BLM musttreat the Checkerboard as what it is:alternating parcels of public andprivate land subject to different legal obligations.



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U.S. 221, 230, n.4 (1986) (finding that unlawful killing of whales harmed those who wish to

observe or study the whales).

Moreover, the respondents argument that Petitioners will not suffer irreparable harm

because there will still be other horses on the range is legally untenable because [i]ts logical

extension is that a plaintiff can neversuffer irreparable injury resulting from environmental harm

. . . as long as there are other members of the species that are not harmed.Alliance for the

Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011) (emphasis added);see also Animal

Welfare Inst. v. Beech Ridge Energy LLC, 675 F. Supp. 2d 540, 561 n.24 (D. Md. 2009)

(rejecting similar argument and holding that [t]aking Defendants argument to its logical (but

absurd) conclusion, if there were only one mating pair of Indiana bats remaining in existence, the

Court could only award injunctive relief under the [Endangered Species Act] after one of the two

bats had actually been killedat which point the species would be doomed to extinction).

Hence, there mere fact that some wild horses are retained on White Mtn. HMA and solid

block portions of the other HMAs, DE 31 at 22, in no way refutes Petitioners clear

demonstration of irreparable harm due to the substantial reduction in the wild horse populations

in these HMAs that Petitioners enjoy observing, studying, and photographing. See Sierra Club v.

Martin, 933 F. Supp. 1559, 1571 (N.D. Ga. 1996) (finding irreparable harm and noting that

[t]he question of irreparable injury does not focus on the significance of the injury, but rather

whether the injury, irrespective of its gravity, is irreparablethat is whether there is any

adequate remedy at law . . . . [N]owhere in the text of the [Migratory Bird Treaty Act] does it

state that a violation of its mandate is contingent upon a finding of a killing of a certain

percentage of the migratory bird population in a particular location), revd on other grounds,

110 F.3d 1551 (11th Cir. 1997).12

12RSGAs view that Petitioners have no enforceable right under the WHA to observe anyparticular horse, and thus cannot establish irreparable harm, seriously confuses governing law.



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Furthermore, the respondents suggestion that Petitioners will not be irreparably harmed

by the destruction of existing wild horse family structures within the Checkerboard because the

remaining wild horses may form new families is a grave misunderstanding Petitioners injury.

DE 30 at 23; DE 31 at 21. This assertion ignores the heart of Petitioners interests: their intimate

and longstanding connection to these particular horsesand these specifichorse bandsas they

currently exist on the Checkerboard lands something which can never be replicated after the

proposed roundup occurs, no matter how much time passes. SeeWalker Decl. 3 (Petrs Ex. M,

DE 17-14) (I have come to know and recognize certain horses and horse bands . . . to which I

feel an especially close connection and relationship on a personal and aesthetic level.); id.at 4

(I look for [a particular horse] each time I return to Adobe Town, and it brings me great joy

knowing that he is still on the range.); Curyl Decl. 5 (Petrs Ex. N, DE 17-15) (Every time I

return to the Salt Wells HMA, I look for this specific horse and his band because of the aesthetic

enjoyment I feel knowing that he and his band continue to roam the range.).

Indeed, the proposed roundup threatens to take a huge toll on [Petitioners] from an

emotional, recreational, and aesthetic standpoint. Walker Decl. 6 (Petrs Ex. M, DE 17-14).

The heart-rending experience of see[ing]the tight-knit wild horse families [they have] grown

to know, recognize, and love ripped apart . . .forever and [t]he thought of these stunning

animals languishing in small enclosures rather than running free across the range with their

DE 31 at 17-18. No wildlife protection statutes expressly articulate a distinct right to observe aparticular animal, but that has notstopped courts from routinely finding harm to a personsinterest in a particular animal. See, e.g.,Norton, 281 F. Supp. 2d at 221-22 (finding irreparableharm and granting injunction based on assertion that the challenged action may permanentlyremove swans, some of which may be those with which they have developed relationships, orhave observed and plan to observe again in the future.);Animal Legal Def. Fund, Inc. v.Glickman, 154 F.3d 426, 433 (D.C. Cir. 1998) (The key requirement, one that Mr. Jurnoveclearly satisfies, is that the plaintiff have suffered his injury in a personal and individual wayfor instance, by seeing with his own eyes the particular animals whose condition caused himaesthetic injury.);see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 566 (1992) (It is clearthat the person who observes or works with aparticularanimal threatened by a federal decisionis facing perceptible harm . . . .) (emphasis added).



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family bands, id.at 5, constitutes harm that cannot be compensated after the fact by

monetary damages,Flowers, 321 F.3d at 1258, and will be permanent . . . i.e.irreparable,

Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 545 (1987).13

Contrary to respondents contention, Petitioners allegations constitute the paradigmatic

example of irreparable harm. Courts have not hesitated to find the requisite likelihood of

irreparable injury where, as here, the challenged agency action threatens to negatively affect the

particular wildlife that the moving party developed relationships with and aesthetic interests in.

Fund for Animals v. Norton, 281 F. Supp. 2d at 221; id.at 222 (finding irreparable injury and

granting preliminary injunction to prevent killing of swans, some of which may be those with

which [plaintiffs] have developed relationships, or have observed and plan to observe again in

the future). Indeed, in that case, the court specifically rejectedthe notion that irreparable harm

may not be predicated on the plaintiffs connections to and longstanding relationships with

specific animals in a wildlife population, holding that Defendants have cited no authority

suggesting that such an allegation of harm is insufficient.Id. Likewise, other courts have ruled

that even the contemplation [] of [harmful] treatment of wildlife may inflict aesthetic injury

upon . . . individual [petitioners] that if experienced and threatened would be irreparable.

Fund for Animals, Inc. v. Espy, 814 F. Supp. at 151;see alsoRed Wolf Coal., 2014 WL 1922234,

at *9 (Plaintiffs members have clearly demonstrated that their ability to enjoy red wolves in the

13RSGAs argument that Petitioners have not demonstrated irreparable harm to theenvironment or to the wild horses themselves, DE 31 at 19-21, again mischaracterizes theirreparable harm standard. A plaintiff seeking a preliminary injunction must establish . . . thatheis likely to suffer irreparable harm in the absence of preliminary relief, not that the affectedenvironment or animal at issue will suffer irreparable injury. Winter v. Natural Res. Def.Council, 555 U.S. 7, 20 (2008) (emphasis added);Fund For Animals, Inc. v. Espy, 814 F. Supp.at 151 (granting preliminary injunction where [e]ach of [the plaintiffs] enjoys the . . . bison inmuch the same way as a pet owner enjoys a pet, so that the sight, or even the contemplation, oftreatment in the manner contemplated of the wild bison, which they enjoy and have seen and arelikely to see captured for the program, would inflict aesthetic injury upon the individual plaintiffs. . .) (emphasis added). Thus, Petitioners only need to demonstrate the detrimental effecttheremoval of these horses will have on thePetitioners themselves. See Winter, 555 U.S. at 20.



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wild and the forced contemplation of [injury to these animals] would cause them to suffer

irreparable harm.).

Accordingly, under the applicable legal standard and in line with decades of precedent

concerning injunctive relief in the wildlife context, Petitioners have more than adequately shown

how their interestswill be irreversibly harmed by the removal of these wild horses from the

public lands of the Checkerboard.

III. THE BALANCE OF THE EQUITIES AND PUBLIC INTEREST WEIGH IN

FAVOR OF MAINTAINING THE STATUS QUO

At the outset, it is important to emphasize that Petitioners are not asking this Court to

enjoin BLM from permanently removing excess wild horses from the range pursuant to Section 3

of the WHA or to interfere with BLMs obligation under Section 4 to remove stray horses from

private land. Rather, Petitioners are simply asking this Court to temporarily delay a roundup that,

as planned, raises serious questions about BLMs statutory obligations on thepublic landsof the

Wyoming Checkerboard. SeeDE 17-1 at 14-20;supra at pp. 2-7. While the respondents assert

that the proposed roundup must proceed immediately,see DE 30 at 24-25, they have not

provided the Court with any compelling reason for their self-imposed roundup deadline of

September 1, 2014. In fact, BLM has conducted roundups in these same HMAs during later

months in the past. SeeBLM,Adobe Town/Salt Wells Fall 2013 Gather, http://www.blm.gov

/wy/st/en/programs/Wild _Horses/13atsw-gather.html (roundups scheduled forNovember 22-

December 4, 2013); BLM, Great Divide Basin 2011 Fall Gather, http://www.blm.gov/wy/st/en

/programs/Wild_Horses/ 2011-fallgathers/db-gather-rpts.html (roundups scheduled for October

and November 2011). It is not clear why Federal Respondents are chomping at the bit to proceed

with this roundup on the Checkerboard imminently, other than perhaps to gain some strategic



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advantage by forcing this Court to decide this matter on an extremely expedited schedule. Thus,

this unexplained urgency should not tip the balance of the equities in their favor.14

Federal Respondents bald assertion that the Court should not enjoin this roundup

because courts have found in other cases involving wild horses that the equities weighed in the

agencys favor should be rejected. DE 30 at 25. In everycase cited by respondents to support this

assertion, the agency had at least prepared an environmental assessment (EA) as required by

NEPA for the proposed roundup and at least purported to comply with its Section 3 duties

pursuant to the WHA. See In Def. of Animals v. Salazar, 675 F. Supp. 2d 89, 92-93 (D.D.C.

2009) (describing EA for roundup at issue);Habitat for Horses v. Salazar, 745 F. Supp. 2d 438,

443 (S.D.N.Y. 2010) (same); Cloud Found. v. BLM, 802 F. Supp. 2d 1192, 1196-97 (D. Nev.

2011) (same);In Def. of Animals v. U.S. Dept of Interior, 737 F. Supp. 2d 1125, 1130-31 (E.D.

Cal. 2010) (same). BLMs decision-making process for the roundup at issue here stands in stark

contrast to these cases, where courts found [t]he public interest [wa]s served by implementing

14While Federal Respondents do not argue that the removal of all the wild horses fromthe Checkerboard is necessary to protect the range, RSGA and Wyoming spend a significantamount of time stressing the impact of excess wild horses on the range and ultimately on theirgrazing interests. DE 31 at 5-7, 19-20; DE 29 at 17-20, 23-24. To begin with, their lengthydiscussion of excess horses and rangeland healthsupportPetitioners position that this roundupcries out for a full environmental analysis under NEPA before proceeding. See Balt. Gas & Elec.Co. v. Natural Res. Def. Council, 462 U.S. 87, 97 (1983) (NEPA places upon all federal agenciesthe obligation to consider every significant aspect of the environmental impact of a proposedaction.). Moreover, respondents view ignores the fact that a portion of the forage on the publiclands within the Checkerboard is specifically reservedfor wild horses. See, e.g., Dept. ofInterior, BLM Green River Resource Management Plan (October 1997) at 23 (Wild horse herdmanagement will be directed to ensure that adequate forage (about 17,400 AUMs) will beavailable to support wild horses); U.S. ex. rel. Bergen, 848 F.2d at 1507 ([N]othing ofLawrences [] has been taken. Certainly, his federal grazing leases are not damaged as a portionof the animal unit months (AUMs) for those leases is reserved for wildlife.). And, in anyevent, as this Court is aware from prior related proceedings, livestock typically cause far morewidespread and concentrated damage to the ranges natural resources than wild horses. SeeDeclaration of Lloyd Eisenhauer, DE 86-3,RSGA, 2:11-cv-263-NDF (Petrs Ex. R).



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the well-considered decisionof the BLM,Habitat for Horses, 745 F. Supp. 2d at 458 (emphasis

added), because here BLM has made no effort to engage in the public process NEPA requires.

Accordingly, by any standard, the equities and the public interest favor an injunction

under the circumstances to ensure that BLM compl[ies] with the requirements of federal law.

Patriot, Inc. v. U.S. Dept of Hous. and Urban Dev., 963 F. Supp. 1, 6 (D.D.C. 1997).15

IV. PETITIONERS SHOULD NOT BE REQUIRED TO POST A SUBSTANTIAL

BOND

While Federal Respondents conspicuously do not assert that Petitioners should be

required to post a bond, Respondent-Interveners ask the Court to force Petitioners to post a

substantial security bond if it grants Petitioners motion. DE 31 at 24-25; DE 29 at 23-24.

Respondent-Interveners citeHabitat Education Center v. United States Forest Service, 607 F.3d

453 (7th Cir. 2010) for the proposition that courts mustrequire a substantial bond under Federal

Rule of Civil Procedure 65(c) from nonprofit organizations seeking preliminary injunctions. DE

29 at 22. However, the one out-of-circuit case cited by Respondent-Interveners constitutes the

single outlier from what courts, including the Court of Appeals and its district courts, have

consistently held: litigants seeking to enforce environmental statutes to protect the public

interest should be required to post, at most, a nominal bond. See, e.g.,Davis v. Mineta, 302 F.3d

1104, 1126 (10th Cir. 2002) ([W]here a party is seeking to vindicate the public interest served

by NEPA, a minimal bond amount should be considered.); Colo. Wild, Inc. v. U.S. Forest Serv.,

523 F. Supp. 2d 1213, 1231 (D. Colo. 2007) (declining to require bond from plaintiff non-profit

environmental groups because it would preclude . . . review of the [agencys] decision and

15Federal Respondents and Respondent-Interveners harp on the fact that the public wasable to comment on the scoping notice for a potential EA for the originally planned structureof this roundup under Section 3 and 4 of the WHA. DE 30 at 17; DE 31 at 15-16. However,BLM abandoned this process and decided to proceed in a different manner than envisioned bythe scoping notice, DE 30 at 17, thereby ignoring the comments of Petitioners and othermembers of the public in response to the scoping notice and failing to allow anypublic commenton the agencys new, unprecedented, and unlawful approach.



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frustrate the policies underlying NEPA and the APA); San Luis Valley Ecosystem Council v.

U.S. Fish & Wildlife Serv., 657 F. Supp. 2d 1233, 1248 (D. Colo. 2009) (requiring no bond from

environmental groups bringing NEPA claims because imposition of substantial security would

impede Plaintiffs access to judicial review); Colo. Wild v. U.S. Forest Serv., 299 F. Supp. 2d

1184, 1191 (D. Colo. 2004) (ordering no bond in forest management case).16

Here, it is unassailable that Petitioners are individuals and nonprofit organizations

seeking to enforce two environmental statutes, NEPA and the WHA, in order to protect the

public interest in the preservation of wild horses onpublicland in the Checkerboard. Petitioners

do not have the financial resources to post the exorbitant bond amounts requested by

Respondent-Interveners. SeeDE 29 at 24 (requesting a $103,717.68 bond); DE 31 at 25

(requesting a $2,661,280.00 bond). The imposition of even a fraction of the requested bonds

would effectively block Petitioners path to judicial review and close the courthouse door to

them and the public interest they are serving in this case. Because Petitioners seek[] to vindicate

the public interest served by NEPA and the WHA,Davis, 302 F.3d at 1126, and because

16This Circuits practice under Rule 65 of not requiring more than a nominal bond isuniversally shared by nearly every other federal court. See, e.g.,Natural Res. Def. Council v.Morton, 337 F. Supp. 167, 169 (D.D.C. 1971) (noting, in oil and gas leasing context, that [i]twould be a mistake to treat a revenue loss to the government the same as a pecuniary damage toa private party in ordering $100 bond); Sierra Club v. Block, 614 F. Supp. 488, 494 (D.D.C.1985) (NEPA case where court notes special public concern in the litigation and ordering a$20 bond); W.V. Highlands Conservancy v. Island Creek Coal Co., 441 F.2d 232, 236 (4th Cir.1971) (mining and timber case ordering $100 bond); Scherr v. Volpe, 466 F.2d 1027, 1035 (7thCir. 1972) (highway project case ordering no bond);Alabama ex rel. Baxley v. U.S. Army Corpsof Engrs, 411 F. Supp. 1261, 1276 (D.C. Ala. 1976) (channel excavation case stating that thecourt is unwilling to close the courthouse door on public interest litigation with a large bond,and ordering $1.00 bond); Wilderness Socy v. Tyrrel, 701 F. Supp. 1473, 1492 (E.D. Cal. 1988)(forest protection case limiting bond to $100);League of Wilderness Defendersv. Zielinski, 187F. Supp. 2d 1263, 1272 (D. Or. 2002) (environmental case finding that the facts dictate no bond);Save Strawberry Canyon v. Dept ofEnergy, 613 F. Supp. 2d 1177, 1191 (N.D. Cal. 2009)(ordering no bond because small nonprofit will otherwise be effectively denied access to judicialrelief).



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requiring a substantial security bond would thwart Petitioners efforts to obtain judicial review,

the Court should not require Petitioners to post a substantial bond.

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.

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 LLC408 West 23rdStreet, Suite 1

Cheyenne, WY 82001-3519

(307) 638-8885

Counsel for Petitioners

Date: August 25, 2014


Wy Checkerboard Awhpc Resp to Govt Opp to Pi

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