839 F.3d 938
10th Cir.2016Background
- The State of Wyoming sued the Department of the Interior and BLM claiming BLM failed to fulfill non-discretionary duties under the Wild Free-Roaming Horses and Burros Act to remove excess wild horses on seven Herd Management Areas (HMAs) in Wyoming.
- BLM had established Appropriate Management Levels (AMLs) for those HMAs and 2014 inventories showed populations exceeding AML upper limits.
- Governor Mead sent demand letters (Aug. and Oct. 2014) asserting BLM had a mandatory duty to remove excess horses; BLM replied in Nov. 2014 describing ongoing and planned actions and resource constraints.
- Wyoming filed an APA lawsuit (5 U.S.C. § 706(1)) alleging final agency inaction/unlawful withholding or delay of the mandatory duty to remove excess animals once inventories exceeded AMLs.
- The district court granted BLM’s 12(b)(6) motion, holding Wyoming failed to identify a discrete, non-discretionary action BLM was required to take; Wyoming appealed.
- The Tenth Circuit affirmed, holding the Act requires both (1) a determination that an overpopulation exists and (2) a separate determination that removal is necessary; only the first occurred, so no mandatory duty to remove was triggered.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether exceeding an AML alone triggers a nondiscretionary duty under § 3(b)(2) to remove excess horses | Exceeding AML (BLM’s own scientific determination) automatically shows removal is necessary and thus triggers a mandatory duty to remove | The Act requires both a determination of overpopulation and a separate determination that removal is necessary; exceeding AML alone does not eliminate agency discretion | Held for defendant: exceeding AML is not alone sufficient; BLM must also determine removal is necessary before § 706(1) relief lies |
| Whether the petition pleaded a discrete agency action unlawfully withheld under the APA | State: petition identified BLM’s failure to perform the non-discretionary action (removal) required by the Act | BLM: no discrete, mandatory action to compel because statutory text grants agency discretion to decide whether removal is necessary | Held for defendant: petition failed to state an APA § 706(1) claim because no discrete mandatory duty was alleged |
| Whether the Act or AML definitions eliminate BLM discretion to delay action pending further analysis | State: AMLs embody agency’s scientific judgment, so once exceeded BLM has no discretion to wait for more proof | BLM: statute’s language (e.g., “whether action should be taken” and requirement BLM determine removal is necessary) preserves discretion | Held for defendant: statute’s language preserves discretion; nothing requires immediate determination that removal is necessary |
| Availability of mandamus-style relief under APA § 706(1) for county/state enforcement of Act | State: seeks immediate judicial compulsion to remove excess horses | BLM: judicial compulsion inappropriate because statutory prerequisites for mandatory action were not satisfied | Held for defendant: APA relief unavailable because prerequisite discretionary determination absent |
Key Cases Cited
- Mountain States Legal Found. v. Hodel, 799 F.2d 1423 (10th Cir. 1986) (discusses Act’s purpose and Property Clause basis)
- Wasatch Equal. v. Alta Ski Lifts Co., 820 F.3d 381 (10th Cir. 2016) (standard of review for Rule 12(b)(6) dismissal)
- Gee v. Pacheco, 627 F.3d 1178 (10th Cir. 2010) (pleading standards and accepting factual allegations on motion to dismiss)
- Colony Ins. Co. v. Burke, 698 F.3d 1222 (10th Cir. 2012) (pleading and inference principles on dismissal)
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (legal conclusions not accepted as true on a motion to dismiss)
- Norton v. SUWA, 542 U.S. 55 (U.S. 2004) (APA § 706(1) requires a claim that an agency failed to take a discrete action it is required to take)