American Wild Horse Preservation Campaign v. Jewell
2016 U.S. App. LEXIS 19511
| 10th Cir. | 2016

Background

  • The Bureau of Land Management (BLM) manages wild horses on designated Herd Management Areas (HMAs) under the Wild Free-Roaming Horses and Burros Act (the Act); Section 3 governs removals from public lands (requires finding overpopulation and removing to achieve AMLs) and Section 4 governs removal from private lands when horses stray there.
  • The Wyoming "Checkerboard" is interspersed, unfenced public and private sections (managed in part by the Rock Springs Grazing Association (RSGA)), making separate management of public vs. private parcels practically difficult.
  • Consent decrees (2003 and 2013) and past litigation required BLM to remove excess horses and to remove horses from RSGA private lands; 2013 decree contemplated removing Checkerboard horses and possible HMA/AML changes.
  • In 2014 BLM conducted a gather, removing 1,263 horses from Checkerboard lands (both private and adjacent public parcels), leaving HMA populations below established Appropriate Management Levels (AMLs). BLM treated public Checkerboard parcels as if they were private for purposes of a Section 4 removal.
  • Petitioners challenged the 2014 gather under the APA, the Act, FLPMA, and NEPA. The district court upheld BLM under the Act and FLPMA but remanded for NEPA deficiencies; the Tenth Circuit reversed on the Act and FLPMA claims (NEPA remand not a bar to appeal; case not moot under capable-of-repetition exception).

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Whether BLM could treat public Checkerboard lands as "private" and remove horses from public lands under Section 4 without first satisfying Section 3 requirements Section 3 governs removals from public lands and must be satisfied before any permanent removal from public land; BLM illegally ignored Section 3 and removed non-excess horses and reduced populations below AMLs The Act is silent on intertwined ownership like the Checkerboard; BLM reasonably harmonized obligations and could treat Checkerboard parcels as private under Section 4 because practical realities make separate removals infeasible Reversed: Section 4 cannot be read to include public lands; BLM violated the Act by treating public Checkerboard parcels as private and failing to follow Section 3 before removing horses from public land
Whether BLM’s 2014 gather violated FLPMA by effectively modifying AMLs without an RMP amendment BLM de facto modified AMLs and reduced HMA populations below AMLs without required FLPMA notice-and-comment/RMP amendment process BLM contends AMLs were irrelevant to a Section 4 gather (defense rests on treating action as Section 4) Reversed: Because removals from public lands were not authorized by Section 4, BLM’s actions violated FLPMA (modifying AML effects require compliance with FLPMA processes)
Whether the district court’s NEPA remand bars appellate review (administrative-remand rule) (Petitioners) District court’s order resolving Act and FLPMA claims was final; NEPA remand did not prevent appeal (Respondents) Remand to agency for NEPA compliance makes the district court order non-final and unappealable Court held the administrative-remand rule didn’t apply: BLM acted as an adversarial party and the remand did not affect the completed 2014 gather; appellate jurisdiction proper under §1291
Whether the case was moot after the gather (capable-of-repetition exception) The 2014 gather was too short to allow full judicial review and BLM planned similar future gathers; exception applies Respondents argued subsequent agency work negated effect of any decision and the 2016 gather might differ Court held case not moot: duration too short to litigate and reasonable expectation of repetition (exception applies)

Key Cases Cited

  • Mountain States Legal Found. v. Hodel, 799 F.2d 1423 (10th Cir. 1986) (describing purpose of the Wild Free-Roaming Horses and Burros Act and that it is a land-use regulation)
  • Leo Sheep Co. v. United States, 570 F.2d 881 (10th Cir. 1977) (discussing Checkerboard land pattern produced by Union Pacific Act)
  • Fallini v. Hodel, 783 F.2d 1343 (9th Cir. 1986) (Section 4 requires removal upon private-owner notification but does not require preventing straying from public land)
  • Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (Sup. Ct. 1984) (two-step framework for reviewing agency statutory interpretation)
  • Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969 (Sup. Ct. 2016) (capable-of-repetition-yet-evading-review mootness exception explained)
  • New Mexico ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683 (10th Cir. 2009) (guidance on when administrative-remand rule applies; consider nature of agency action and district court order)
  • Bender v. Clark, 744 F.2d 1424 (10th Cir. 1984) (remand to an agency is ordinarily not appealable)
  • WildEarth Guardians v. U.S. Fish & Wildlife Serv., 784 F.3d 677 (10th Cir. 2015) (APA standard of review; grounds for setting aside agency action)
  • Coopers & Lybrand v. Livesay, 437 U.S. 463 (Sup. Ct. 1978) (definition of final decision under 28 U.S.C. §1291)
  • W. Energy All. v. Salazar, 709 F.3d 1040 (10th Cir. 2013) (discussing finality and remand principles)
  • Trout Unlimited v. U.S. Dep’t of Agric., 441 F.3d 1214 (10th Cir. 2006) (administrative-remand rule context)
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