*1 Williams, moreover, the new claim for also out of plain- loss of services arose AMERICAN HORSE PROTECTION boy’s tiff’s status as the mother. Once the ASSOCIATION, INC., et al. status, knew defendant of that had rea- v. of the potential son to know claim she WATT, Secretary, James G. United Here, might in that capacity. assert Mrs. Department Interior, States Leachman’s of Northern ownership Coun- al., Appellants. et ties, if defendant had been put it, No. 82-1070. given notice of would not have Beech reason to know of Northern Counties’s Appeals, United States Court of claim. Northern Counties’s property claim District Columbia Circuit. action, was a new simply arising cause Argued Sept. sure, out of the same occurrence to be but brought by an essentially unrelated victim. Decided Dec. If Northern Counties desired to toll the limitations, statute should have
brought the action itself.7
IV judgment The District Court’s is accord- ingly affirmed as to Northern Counties’s aircraft,
claim property damage to its as to reversed Heather Kitchel Leach- man’s for wrongful claim death damages based on liability strict and breach of war-
ranty. The case is remanded for further
proceedings consistent with opinion.
It is so ordered. argued Plaintiffs have no offered reason for their that Mrs. Leachman could original pleading join failure in their attempt to property North- herself to add the claim under ern 15(c) Counties to assert the claim for loss of rule and then later substitute Northern property, or party. for their failure do so for Counties as the If more correct Mrs. Leach- years originally claim, than Wright property two thereafter. See 6 man had C. & asserted the Miller, supra, (“A A. it is few cases conceivable that she be allowed to suggest plaintiff’s tend that if own follow such course to inexcusa- correct error neglect pleading. responsible jus- ble was Consistent for the with the interests of failure to tice, (leave 15(a) party, name the correct see Fed.R.Civ.P. an amendment amend substi- freely given tuting justice proper party requires); shall be when so will not be allowed Moore, (rules .”); just supra, 15.15[4.-1], id. rule 1 to be . . . J. construed obtain a j] at 15- however, result), (plaintiff we do think must show that his or her failure manipulated join would allow the rules parties to be the correct was not due to inex- achieve a result be. neglect). barred if at- cusable tempted directly. *2 D.C., Gaspar, Washington, J.
Russell appellees.
Murdaugh Roger Stuart Madden and A. Kindler, D.C., Washington, also entered an Humane appearance appellees, Society of the United States. ROBINSON, Judge, Chief
Before GINSBURG, Judges. Circuit WALD and for the Court filed Circuit Opinion Judge GINSBURG. dissenting part, filed Chief
Opinion, ROBINSON, W. Judge III. SPOTTSWOOD GINSBURG, Judge: Circuit Management The Bureau of Land (“BLM”)1 manages herd of wild horses Challis, public that roams lands near Idaho. permanently In 1976 the district court en- joined removing BLM from horses from the approval. without court’s This is the district court’s Novem- appeal from 19, 1981, denying Agency’s order ber injunction. to dissolve the 1976 We motion error in the district court’s determi- find no complied that BLM has not nation district court in its supplied instructions the But we hold that a 1978 1976 decree. super- statute has change governing instructions at issue and seded the court prompt a remand for reconsidera- compels Agency’s tion of the motion.
Background
I. enacted the Wild Free-
In 1971
(“Wild
Roaming Horses and Burros Act
Act”), 16
1331-1340. The
Horse
U.S.C. §§
responded
congressional
to the
concern
burros, “living symbols
that wild horses and
pioneer spirit
historic and
West,”
disappearing
“fast
from the
were
scene.” 16
American
U.S.C. §
protection
extended federal
legislation
Justice,
Leape, Atty., Dept,
James P.
BLM to man-
empowered
wild horses and
D.C.,
Snel,
Washington,
with whom Dirk D.
roaming public ranges
part
as a
Justice,
D.C., age horses
Atty., Dept,
Washington,
Watt,
public
Agency’s management of the
appellants,
was on the brief for
et al. of the
opinion.
“BLM,”
interchangeably
Agency,”
Secretary”
in this
are used
“the
and “the
to consider “a Congress passed
lands. At the time
the Act
of ac-
courses
the Challis herd numbered 150.2
popu-
tion” that would affect
the wild horse
severely
lation less
than would the proposed
330,122
comprise
Challis
lands
roundup
Restricting
removal.
197,330
Wild horses
about
acres.3
on the horses’
terrain;4
area, 146,214
of that
acres
of that
—an
*3
option BLM had failed to
closely—
consider
up
range
acres make
accessible to hors-
might
was a viable alternative that
achieve
in winter.5
forage
es
The limited
range
greater protection
winter
with less
determines
maximum
horses
number of
can
wild horses that
survive on management
by the
Agency,
the Challis-area
its current
lands.6 In
con-
therefore merited “full and careful consid-
9
dition, with
competing
forage
cattle
for
eration.”
summer,
winter range
in the
the winter
b)
plan
inadequate
BLM’s
was based on
can,
range
without significant deterioration
horse population
data on
herd
and other
the range, support
of
herd of about
stable
characteristics.10
340 horses.7
c) BLM failed
to consider
adequately
In 1976 BLM
proposed
reduce the
population
means of
control that
(numbering,
according
Challis herd
to a
duce
need for
periodic
removal
hors-
count,
1971
horses) to the
herd size
es,
example, concentrating roundup
ef-
of 150 animals. The American Horse Pro-
forts on fertile mares.11
(“AHPA”)
tection Association
challenged
d)
provide
BLM failed to
for on-site vet-
the Agency’s plan. The district court en-
erinary
during
roundup,
assistance
vio-
joined
BLM,
removal of horses
lating the Wild Horse
requirement
Act’s
following reasons:8
that removal measures be humane.12
a)
1333(a)
The Wild Horse
section
Act’s
e)
proposed
mandate of
up
“minimal
feasible
BLM
to round
horses be-
level[s]”
management by
required
Agency
completing
fore
an environmental
Department
Interior,
quantity
forage
2.
Bureau of Land
would
due to
decrease
Office,
Management,
Supple-
overgrazing
severely
Idaho
Final
State
and the
would be
mental Environmental Statement on a Revised
damaged.
damaged
[Citation
The
omitted.]
Range Management Program for the Challis
eventually
produce
malnutrition
Planning
[hereinafter,
Unit
29.
“FSES”]
migration
die-offs
hab-
of horses to other
Spring,
....
winter and fall
itats]
by
Id. at
3.
1-1.
present stocking
livestock at the
level
forage
would remove
needed for wild horses.
4.
Id. at 2-49.
Opinion, finding
Id. See also 1976
of fact
Envir.L.Rep. at 20803.
figures
5.
Id. These
differ somewhat from those
relied on
the district court
Opinion, supra
8. 1976
note 5. The
for the
basis
district court’s 1976
No. 76-1455
court’s 1976 review was the Administrative
(D.D.C.
Sept.
1976)
Opin-
“1976
[hereinafter
(“APA”),
Procedure
5 U.S.C.
702.
ion”],
reported
Envir.L.Rep.
(De-
at 6
cember
The court
in 1976
found
260,000
Opinion,
acres,
comprised
Envir.L.Rep.
the entire Challis unit
9. 6
2-5;
con-
acres,
168,648
id.,
ranged
findings
that horses
of law
and that
clusions
see also
91,642
range comprised
the winter
acres. See
fact 29-33.
Opinion,
finding
id. at
of fact
20803.
Id.,
of law
conclusion
6. Neither AHPA nor
10.
Id., finding
13;
6.
of fact
at 8-14.
FSES
the district court has relied on this element of
question
general
the 1976 decision to
BLM’s
FSES at
7.
8-14 to 8-15.
compliance
injunction.
claim of
with the
limiting
maintaining
A
factor of
the wild
horse herd within the area ...
is the winter
Id., finding of
fact 28 and
of law
conclusion
range.
Inventory data indicates that the area
support
present
can
340 wild horses. The
(586)
overstocking
number of wild
Id.,
conclusion of law 8. Neither AHPA nor
indicate
[The data]
[]
the district court has relied on this
element
grazed by
wild horse
over
would be
question
general
the 1976 decision to
BLM’s
present
popu-
. . . about 246 animals
horse
[if
compliance
injunction.
claim of
with the
quality
lation levels were
maintained].
agreement
Under a
BLM removed
similar
(“EIS”)
preparation
then under
statement
307 horses in 1980. On both occasions
Agency.13
district court refused to dissolve the 1976
1976-78 BLM studied
period
In the
injunction.
lands
the Challis
strategies.
alternative
control
weighed
proposed
In 1981 BLM
to cull a further
Frame-
“Management
BLM followed
then 400-animal herd.
200 horses from the
in-
process
This
(“MFP”).
work Plan”
permission.16
court denied
district
conducting
analysis
a preliminary
volved:
comply
BLM had failed to
found that
available; MFP-Step 1—
the resources
instructing
1976 decision
the court’s
action;
courses of
proposing
serious, detailed considera-
give
alternatives,
these
MFP-Step
analyzing
2—
the hors-
possibility
protecting
tion to the
arriv-
impacts,
environmental
assessing
range by restricting
graz-
es’
MFP-Step
compromise proposals;
Further,
rejected
the court
BLM’s ar-
ing.
*4
Plan
formulating
Range Management
a
3—
1978 amendments to the Wild
gument
that
impacts.14
its
(“RMP”)
assessing
and
judicial
1976
superseded
stop
Horse Act
the
Environmental
Supplemental
BLM’s “Final
against
pending
removals
careful
order
analyzed al-
(“FSES”), which
Statement”
study
range management plan.
of a winter
“Pro-
specified
Agency’s
ternatives and
the
determinations
the
Based
these two
1978;
Action,” was
in November
posed
filed
1976
re-
court ordered
the
(re-
of BLM’s final
“Summary Report”
a
main in full force and effect.
issued
vised) Range Management Program
25-39.15
Appendix (App.)
in March 1979.
Injunction
with the 1976
II.
Compliance
to 767 ani-
grown
the herd had
By 1979
initially
BLM contends
accorded
BLM, under the district court’s su-
mals.
protecting
consideration to
the
sufficient
with AHPA to remove
pervision, agreed
thereby
and
ade-
range
wild horse winter
half the
year,
167 horses that
about
with the 1976 decree.17
planned
quately complied
to cull.
Agency
number
the
had
Id.,
appropriation,
improvement”
BLM
and
ear-
of law 9. The district
conclusion
$350,000
improving
Environmen-
held it would violate the National
for
marked
dollars
Policy
Agency
proceed with
Agency
tal
Act for the
to
range. The
then modified its
Challis
roundup
completing the EIS.
In a
before
“Proposed
to reduce adverse im-
FSES
Action”
proceeding
separate
before a different
1974
grazing; changes
pacts
are reflected
on cattle
judge,
had ordered BLM to
the district court
in the final RMP.
addressing
prepare an EIS
and re-
Challis
management plans.
Natural Re-
lated
76-1455
16. Memorandum
Civ. No.
Morton,
Council,
Defense
Inc. v.
sources
19, 1981).
(D.D.C. Nov.
aff’d,
(D.D.C.1974),
F.Supp. 829
But
the district
give
Agency
support.
found
full
current
can
condition
“fail[ed]
involving
alternatives
consideration to
Agency
possibility
was
consider
grazing
restriction of
on
cru-
livestock
might be excluded from the winter
areas,”18
cial winter
and thus failed
leaving
forage
winter
range,
more
for the
to fulfill the 1976 mandate. On
record
securely
horses.19 The record
indicates that
us,
finding
supported.
before
is well
extensively
BLM did not
consider eliminat-
reducing
livestock
ing
ques
We note at the outset that the
winter
gave
tion
“full
whether BLM
and careful”
restricting
graz
consideration
livestock
MFP-Step
advanced two
largely
winter
one of
strategies
protecting
adjudications
fact. District court
such
eliminating cattle
range:
altogether
questions
should
reviewed under
using fencing
seg-
from that
“clearly
Dayton
erroneous”
standard.
competing
regate cattle
wild horses
Brinkman,
Board of Education v.
433 U.S.
range’s
ap-
resources. Both
406,
2774,
97 S.Ct.
court The 1976 decision clear its insis and, emerges as it from range is brief option for the tence full consideration convincing.22 particularly transcript, protecting range by curtailing the winter however, that it did emphasizes, BLM’s efforts to fulfill grazing.26 cattle consideration give more extensive been, best, have condition half lands managing the Challis-area option We therefore hearted. find unassailable constraints” on impose so as to “minimum rejection the district court’s of BLM’s claim find BLM’s “mini- the wild horses.23 We complied it with the adequately has At puzzling. mum constraints” alternative given directions the 1976 descrip- BLM’s glance, first and colored decree. option plan tion of the as a that would horses,”24 one con- “[mjaximize wild III. The 1978 Amendments to the insulated horses clude that this alternative Wild Horse from all by securing with cattle competition The Wild Horse Act was significantly inspec- closer the horses’ entire On 95-514, amended in 1978. Pub.L. however, Stat. tion, option appears held, however, district as it now presupposes legislative the 1978 did alterations not af- exists, that cannot accommodate In fect the 1976 decision.27 the view of the of continued more than 340 horses because Act, event, judge, just district the amended as the in summer. measure, original required the “minimum constraints” detailed plain did not track the district court’s 1976 consideration courses of action with an plan 23. BLM’s 24. FSES at planned ing Alternative 5 wild horses note this out further horse stable herd size is arrived at candid which is reduced that the RMP in Brief at RM? limited Alternative 5 in the FSES. The BLM’s of the “minimum constraints” on the “current” winter competitive” forage entire horses’ FSES at as one in which the number of horses is not *6 on Wild Horses” limited its current condition. The cated size not in excess of straints on appears We are troubled App. detailing here plans forage testimony description by competition carrying capacity mystified by 63-65, 8-90, a stable herd size of (Reply significant analysis BLM’s one of 150. Wild pages A—4. BLM’s sufficient for 340 horses on the A-4 to A-5. range. fact, Brief at in the district court and brief- Horses” plan Reply 8-79 to 8-98 of the FSES. in BLM’s in-court confusing presentation, was allocated 340 BLM’s effort to difference: Alternative 5 if not in cattle 118-119, an Then, assumed a stable herd “Minimum Moreover, contrary the “Minimum Con- Brief at 13-14. With- horses because of the of the winter 13-14), apparent management option plan proposals. cattle, grazing. remaining form, adopts plan, passim. plan 340; therefore allo- to the cattle. it is evident but the 340- by focusing Constraints capacity absence of set out as is colored portrayal persuade the final range in We are BLM’s “non- we 27. “The pra tion of an tutes an ‘excess’.” Memorandum the Court are based.... Where the Court finds an abuse of discretion size of 150. the minimum feasible wise not of the Act to the law The failure to sions of law 4 and 5. pricious, an abuse of calculation Assessment sitates a fresh § merely Herd careful consideration ders the mental Assessment Horse Herd 38; ment Plan grazing should have been considered 706(2)(A).” “Th[e] note reasonableness see also Challis Wild Horse Herd the RMP Management on the winter [1978 amendments] proposed round-up plan “excess” initial, alternative of accordance with’ the clear mandate (Exhibit 3) at 4-5. (Exhibit VII) Management keep management which these what finding give 6 contemplates Envir.L.Rep. herd size of 150. all this alternative the full and based number (Exhibit 4) Area Plan Environmental Our required by discretion, the district 80, 81; decision [1976] upon targeted restricting Area Plan Environ- Secretary’s level. areas [by ... did not [of horses] by “Introduction,” an a the [BLM].... BLM] 20804, conclusions of ‘arbitrary, Challis Wild average, is today the Act ren- 19. But see [and] App. activities at viable 5 U.S.C. livestock Manage- is in the calcula- conclu- change consti- 34— neces- other- as to herd and su- ca- 1316 grown less to 586 in population App. on the horse severe 1978. See PSES consideration, at 2-48. “In the dis- the case wild horses and
than removal. Such States, in the believed, Congress “before burros Western act- trict court must occur 1971 posed ed in to curb a abuses roundup significant or other threat to their case, survival. situation now activity is undertaken.”28 In this reversed, to have appears to be “full and alternative still accorded prevent needed to a successful program consideration,” careful was restriction of exceeding from goals causing ani- on the winter Memo- H.R.Rep. mal destruction.” habitat No. 95- 16, at 4. We opinion, supra randum (1978). 95th Cong., 2d Sess. Con- misinterpreted believe the district court therefore “certain gress found amendments legislative design failed to accord necessary the Wild are Horse revised, Act, Congress [to Act] the effect excessive in the avoid costs administration intended it have. Act, and to facilitate humane a change When in the law autho adoption disposal of excess wild free- ” previously rizes what had been forbidden it roaming horses . . . . Pub.L. to refuse 2(a)(6), abuse discretion a court 92 Stat. 43 U.S.C. to modify 1901(a)(6) an founded on the (Supp. IV Potash, superseded law. McGrath v. The 1978 amendments embodied two sub- (D.C.Cir.1952). F.2d 167-68 And in First, goals. Congress stantive a struck construing change in the law court of new balance —or at least clarified the bal- review does not owe to a district court’s Congress ance intended to strike in 1971— construction the substantial deference it protecting between compet- wild findings owes to the district court’s of fact. interests in public the resources of the See, e.g., System Wright, Federation v. Second, Congress ranges. judged that 642, 648, 368, 371, U.S. S.Ct. L.Ed.2d prompt action was needed redress the (1961). reviewing the district court’s developed; imbalance that had it directed refusal to dissolve the 1976 injunction we excess horses should be removed therefore, must, assess independently expeditiously. To imple- facilitate BLM’s import 1978 change governing goals, mentation these twin the 1978 statute. specified amendments both the circum- under stances which BLM determine In 1971 the policy announced overpopulation wild horses exists that “wild free-roaming horses and burros means the may use to shall protected accomplish be ... and to horse populations. control they are considered in area found, where presently integral part as an The main thrust of the 1978 amendments system of the natural lands.” *7 cut back protection is to on the the Act 16 U.S.C. 1331.29 The 1971 § Wild Horse horses, wild affords to reemphasize and oth- then, Act provided as it today, still does er uses of the natural resources wild horses shall be at activities “[a]ll consume. amendments a introduce the minimal feasible level.” 16 U.S.C. definition of “excess” horses: horses are in 1333(a). By however, Congress § rec- they if “excess” “must be removed from an ognized that changed. circumstances preserve had area order to a maintain On the Challis range, thriving for a herd example, ecological natural balance and mul- that numbered tiple-use relationship 150 1971 had in that horses in area.” 16 Envir.L.Rep. high degree 28. discretionary authority 6 at of law 2. en a conclusion purposes protection, management, free-roaming Nevertheless, of wild control horses and burros Joint Statement public H.R.Rep. on the lands.” No. pointed Committee of “the Conference out giv- Agriculture Secretaries of Interior and are
1317 referred to the proposal, of the House 1980).30 This sor 1332(f) (Supp.IV U.S.C. § to curb was, most, identified “positive at need for what explicit makes definition legislators Other ex- overpopulations.” ranges are public Act: in the 1971 implicit uses, overpo- views that wild horse merely their pressed not multiple managed ranges threatening were pulations wild hors- protection for the maximum of wild horses them- the survival legisla- provisions of the Other es.31 new importantly, section Most grazing, selves.34 livestock referring to domestic tion excess horses specifies range- and other of the multiple-use “immediately.” removed 1901(a)(4), (6) “shall” be values,32 43 U.S.C. § land reading.33 1980), reinforce this (Supp.IV gave ancillary BLM Congress implement complementary these it clear tools to Next, amendments made the 1978 First, direct the 1978 amendments goals. prompt administra- Congress expected inventory to maintain an Secretary overpo- wild horse to deal with tive action roaming lands. wild horses developed period in the that had pulations 1980). 1333(b)(1) (Supp.IV This “action U.S.C. determined that Congress § 1971-78. explains, the statute is intended inventory, program a successful prevent is needed Secretary determining No. 95- to assist goals,” H.R.Rep. exceeding from overpopulations horse and burro (1978) (empha- where wild Cong., 2d 95th Sess. Second, Roncalio, spec- the 1978 amendments spon- exist.35 added). Representative sis West, many popula- (1971), ranges. areas in the Cong., 1st Sess. 6-7 U.S.Code 92d pp. Cong. of wild horses and burros have become so Admin.News tions & actually destroying large that are their indirectly, acknowledged, 30. The 1971 Act ranges. Ranges point had deteriorated to the exist, overpopulation might possibility that an areas, starving many that wild horses are 1333(b) (1976), define but did not § 16 U.S.C. contributing overgrazing is to serious soil “overpopulation.” horses or “excess” 19,503-04. pollution.” erosion and water Id. is, Representative Marlenee said: “H.R. 10587 specify Act did that wild 31. The 1971 addition, positive approach protec- to the “components” managed were to be public free-roaming tion of wild and horses and bur- lands, 1333(a), and included 16 U.S.C. § However, pre- due to the lack of natural ros. “multiple-use management” in one reference to 20,000 dators, the BLM estimates that between 1332(c); “range,” 16 the definition of a U.S.C. § 30,000 currently excess animals are “multiple the 1978 amendments invoke the public lands. Such numbers of animals have directly goal in the definition of “excess” use” 19,507. grave problems . ...” Id. created horses. original proposal’s response Senate “fish, rangeland values” include “Other problem, Cong., horse S. 95th 2d the wild wildlife, recreation, water and soil conserva- (1978), was described Senator Sess. § tion, grazing.” domestic livestock [and] areas, popula- as follows: certain Church “[I]n 1980). 1901(a)(6) (Supp. IV im- U.S.C. portant One and burros have been so tions of wild horses objective of the final RMP for the Chal- protected numbers now exceed well that their preserve protect lis is to wildlife and carrying capacity poses This range from further deterioration and erosion. wildlife, livestock, a threat overall example, For the RMP allocates about three conditions, and even to the horses and burros forage big species game times as much as to animals for which an themselves.... [E]xcess App. wild horses. 30-31. exist, adoption required demand are does [by disposed to be of in the most bill] 33. A final indication that the 1978 possible as to humane manner thriving so restore protection intended to afford less than absolute ecologic range.” balance to the natural change to wild horses is found in a that allows (1978). reported Cong.Rec. As out healthy the destruction of wild horses committee, however, legislation the Senate did population as a means of control. 16 U.S.C. overpopulation problem address the at all. 1333(b)(2)(C) (Supp. IV *8 Two senators voiced their concern with that 32,807-08 parts proposal omission, (1978), Cong.Rec. 34. The relevant of the House 124 and ultimately incorporated ultimately which were in the con- the Senate conferees acceded to the by Representative ference bill are position. described House’s Cong.Rec. 19,501 (1978). Rep- Roncalio at 124 1333(b)(1), reprinted infra resentative 35. Section note Baucus remarked: “H.R. inventory provisions that the is to serve not problems contains makes clear to deal with the horses, protection to of excessive the of wild but rather wild horses on the and burros land, (ii) (iii) must lie land ify Secretary plans, what information the use information possess or, accurately, statements, (iv) more the informa- from impact environmental — possess inventory the horses. the Secretary tion the need not wild But —before to be in ex- removing Agency explicitly proceed wild horses deemed authorized to 1980). 1333(b)(2) (Supp.IV cess. 16 with the removal of “in the U.S.C. absence Third, broaden the (i-iv).” the amendments the information contained in Id. employ (i iv) in Clauses are in Secretary may precatory; means the remov- therefore — ing excess wild horses. The 1971 Act al- the final the analysis, law directs that hors- animals, lowed or sick the destruction of old es “shall” be removed “immediately” once determines, or capture private Secretary and maintenance the on the basis of ones; allow, the healthy 1978 amendments whatever information has at he the time resort, decision, as a last overpopulation third and the destruction his that an exists. healthy animals.36 conveys Congress’s The statute thus clearly findings view that BLM’s of wild horse amendment, important The most overpopulations should not be overturned our purposes, 1333(b)(2). is section That quickly ground on the predi- are in the section addresses detail information cated on insufficient information.38 BLM may rest its determina- tion that a horse overpopulation exists in In light congressional purposes and particular area.37 The is exhorted the tenor of the 1978 provisions, BLM can- to (i) consider the of federal inventory pub- prolonged pre-removal be held guide Secretary determining (2) Secretary in when horses Where the determines on overprotected. (i) have been inventory A more neutral di-. basis of the current of lands Secretary study jurisdiction; (ii) rective to the wild horse within his information con- population dynamics appears in section planning completed in tained pursuant land use 1333(b)(3). 43; (iii) to section 1712 of title information contained in ordered envi- 1333(b)(2)(A)-(C) (Supp. impact U.S.C. IV ronmental as statements defined 1980). 43; (iv) section of title and such addi- tional information as becomes available to reads, 1333(b) pertinent part: time, Section including him from time to that infor- developed study mation research (b)(1) man- Secretary shall maintain a current section, dated in the absence of the inventory free-roaming of wild horses and (i-iv) information given contained above on public burros on areas of lands. currently all basis of him, purpose inventory information available to of such shall be to: overpopulation given an exists on a make determinations as whether and public area of the overpopulation lands and that where action and exists whether necessary animals, to remove excess be he shall should taken to remove excess ani- immediately mals; appropriate management remove determine excess animals from appropriate manage- as free-roaming so levels of wild achieve horses and burros lands; ment levels.... these areas of the and deter- 1333(b)(1), (2) appropriate management (Supp. mine U.S.C. § whether IV lev- els should be achieved removal or Apparently, animals, district court read the 1978 op- destruction of excess or other specify sterilization, revision of section (such tions or natural con- how animals are to be removed from the population levels). making trols on such their Secretary when numbers can determined determinations shall consult be “excess.” The district court with vice, therefore held the United and States Fish Wildlife Ser- agencies amended Wild Horse of the State or wildlife States quires, pre-roundup, free-roaming “careful detailed con- wherein wild horses and burros located, independent sideration” of “all are such alternative courses of action individuals government have a Federal State less severe as have been population.” Academy opin- wild recommended horse Memorandum National ion, Sciences, supra (quoting and such other individuals at 4 from 1976 whom Opinion) (emphasis expertise original). he determines have scientific While special 1333(b)(2)(A), knowledge (B), of wild horse and amended subsections (C) burro protection, removal, wildlife do see animal address manner husbandry rangeland supra pp. 1333(b)(2)(i)-(iv) manage- as related to section plainly ment. do and the text associated not. *9 consideration” of IV. Conclusion and careful process “full A of study entail. would may all alternatives the not Although BLM ground maintained the has satisfy to the on range adequate the winter restricting considered cat yet carefully concedes, might take a decree, AHPA the grazing tle on the winter Secre no removal of horses which year, during His tary’s remains bounded. or discretion agreement with absent possible, would be subject are review and be over ders to a delay pend- insist such AHPA.39 To arbitrary. Today if his we turned action is juncture,40 at this at least study further only hold that further consideration the. time-consuming of the light study in the alternative, range” “winter on the horses, lands, wild and alterna- Challis the court removal of horses district conditioned has strategies tive BLM management is, light in injunction, in its 1976 the with amended completed, is inconsistent It remains legislation, required. open Secretary Act’s to the “immediate- mandate to the district to determine on remand whether, once of the overpo- light goals to remove excess Act as ly” stands, it now basis of and the the to exist. there- pulation is determined We has, Secretary now information the the to the study fore BLM’s failure hold that reduce the Agency’s plan current to size of in full no range” “winter alternative detail the wild well below the horse herd longer enjoining a basis for the supplies animals the can support range.41 removal from the Challis of horses rationally grounded.42 question following colloquy with 41. We do The counsel for not reach the whether argument: plan place roundup BLM’s violates AHPA took at oral current substan- requirements tive of the Wild Horse Act. Cf. satisfy to do What would BLM have to Q. supra Summarizing require- note 17. those you They ? have consider .. . would to ments, manage Secretary obliged restricting graz- something the winter about multiple uses, public ranges resources ing, fencing? reasonably accommodating competing in- your they A. honor. In our view would Yes wildlife, cattle, horses, terests of other wild give have serious far more consideration protecting ranges from deterioration and given than have to an alternative. supra pp. erosion. See 1316-1317 & n. 32. Study ... What does that mean? it? Q. up report? with in the Wild Come district court found Horse requirement pages A. two Act’s feasible Yes. We have the adminis- of “minimal lev- devoted, sense, general in-depth in a trative record a command for el[s]” study restricting protective livestock of all courses wild horse very prior superficially any the winter removal. We hold variety supersede it the 1978 dismisses for a reasons discussed amendments to the Act Act, my again construction note brief. that in you you Congress Can estimate how much time information curtailed the Q. horses, adequately possess removing believe it would take to consider must intro- before range option? immediately duced the guage remove” lan- “shall honor, 1333(b)(2), expanded A. I not know Your do the BLM’s section planning intimately. process Secretary may I do not think means the use to reduce horse year. populations. would be more than tainly think it cer- These alterations have significance would be less than that because of scant if did not intend volumes of information ... them to inform the “minimal feasible level” year, 1333(a). And in the course of that mandate in absent section While Q. agreement, appeared require there could be no removal? minimum interference Act, horses, though A. That’s correct. with wild amended dissenting opinion, language, at nn. 24 and 25 and still contains “minimal feasible” text, habitat, accompanying emphasizes multiple shuts from view AHPA’s use of acquiesce expense refusal removal and of more interference with hors- on a district court’s insistence “detailed” es. study roundup “before” another occurs. fully dissenting colleague agree 42. We with our judge stressed that he that 16 does not district did not U.S.C. license any specific “arbitrary engage, impunity, intend to dictate course of BLM to in an conduct BLM; instead, sought only capricious reasoning process.” Dissenting he to direct Opinion, accompanying what consider 18. We must before it acts. text note be- supra rationally Memorandum use all lieve BLM must “infor- at 1313. *10 Applicability For the reasons the case stated is re- I. The of Section proceedings manded for further consistent this opinion.-
with 1976, In of Management Bureau Land proposed pare to round herd up It is so ordered. wild horses on the lands Challis be- cause it believed their feeding that winter ROBINSON, III, W. SPOTTSWOOD existed, range, as then not ade- could Judge, dissenting part: Chief quately support them. The District Court enjoined roundup, partly ground join I I in Parts and II court’s the Bureau had considered the and in the court’s determination in of increasing “viable” alternative the win- Part III interpre- the District Court’s supportive ter range’s capability by restrict- Rangelands Improve- tation Public thereon.1 The District subject ment Act of independent Court found this to be arbitrary failure however, review on I appeal. agree, cannot capricious violation the Administrative my with colleagues’ construction this Act Act,2 Procedure and also contrary Section law, removing, as a matter the grounds 1333(a) Free-Roaming Wild Horses fashioned, which upon the District Court (Wild Act),3 and Burros of 1971 Horses lift, injunction and later refused here requires management the Bureau’s at issue. Because am persuaded of wild horses to be maintained “at injunction the challenged is inconsistent minimal feasible level.”4 Act, with this judgment I would affirm the 1981, the In Bureau moved to dissolve the of the District today’s Court. Because re- injunction.5 The District Court denied the versing opinion rests largely on two ration- motion the ground the Bureau still ales, I explicate my disagreement with each sufficiently had not considered the winter in turn. Although my alternative.6 col currently mation Kleppe, available” when it determines 1. American Horse Protection Ass’n v. overpopulation an Envtl.L.Rep. (Envtl.L.Inst.) 20802, wild horses (D.D. exists. But we do not think that under the Wild Horse C. Dec. specific guidance respect Act’s to informa- requirements arbitrarily tional acts 2. Id. 20804. at capriciously merely or because it founds its decisions on the at information hand or an 3. Id. reasonably assessment of a limited number of courses action. 1333(a) (1976). 16 U.S.C. opinion dissenting The sense of the some- slips grasp. opinion times from the That Injunction 5. See Motion to Dissolve and Memo peatedly acknowledges that under the Act as Support randum of Motion to Dissolve In amended in not be ordered to junction, filed June American Horse fact-investigation engage undertake further Kleppe, (D.D. Protection Ass’n v. No. 76-1455 fact-finding. Dissenting in further ion, Opin- See C.). accompanying text *11 1333(b)(2) of superseded by been Section mation, because the Bureau had but not Act,8 as Horses amended the Wild adequately considered an identified alterna- Improvement Act of Rangelands Public tive —a course of action. On the face of its 1978,9 may, the Bureau provides the District in no way Court data, determine specified in the absence of required any the Bureau to act on data currently basis of all information “on the other than that already “currently availa- there exists an available” to it whether superficial ble” to it.11 That the Bureau’s wild horses on overpopulation of range treatment of the winter alternative agree statutory lands. I cannot this arbitrary represents was a failure of rea- entails that the Bureau need authorization soning evaluation, necessarily not one give range the winter suit not factfinding, certainly of not one of able consideration. fact-investigation. concluding that Sec- dispute proposition I not do Sec- 1333(b)(2) judicial tion dispenses with formu- 1333(b)(2) precludes tion courts from reasoning view of the Bureau’s as well as injunctions require that would lating its factfinding fact-investigation, engage fact-investi- Bureau additional court resorts to an unnatural and uncom- gatLn factfinding overpopulation.10 I monly broad construction of the word “in- submit, provision inap- is simply, that plicable process here. The District Court denied formation.” A reasoning is not initially proffered by finding, given ríes the District critical Court that the Bureau had not grounds injunction may for the be inconsistent sufficient consideration to the winter al- Rangelands Improvement ternative, with the Public on some unarticulated conclusion of 1978 is thus irrelevant. fact-investigation that the Bureau’s or factfind- they efforts were less than should have II, Maj.Op., pt. p. 7. See If, however, been. the court finds this uncer- tainty troubling, appropriate response id, Ill, pt. p. 8. See would be to remand the case to the District for a determination (1978), Court whether the Bureau’s 9. Pub.L. No. 95-514 as codified at 16 1333(b)(2) (Supp. assessment winter alternative was U.S.C. IV § solely by deficient as measured the data availa- outset, argue 10. At the one Bu- surely ble to the at the Bureau time. simply reau’s authorization to act “on the basis support holding the court’s to remand for a currently of all information available” to it is decision whether the arbi- Bureau’s action is case, inapplicable appears in the instant as it trary, yet exclude from the Bu- consideration contingent upon specified the absence of data adequately reau’s failure to assess (i) through (iv) 1333(b)(2). in clauses Be- § range alternative. type cause information of the (iii), listed in clause impact a court-ordered' environmental Indeed, tacitly my colleagues appear to ad- statement, is available to the Bureau in this statutory phrase mit that the “information cur- case, might preroga- it seem that the Bureau’s rently weight available” cannot bear the proceed solely tive to on the basis of informa- they holding, interpret their it to include as cannot, already jeopardized. tion it however, has is I reasonably well “an a assessment of limited cramped subscribe to such a con- action,” number of alternative courses of see statutory language. struction of the relevant Maj.Op. p. phrase 1319 n. a that nowhere (iv) Clause refers to informa- § Furthermore, appears 1333(b)(2). tion that becomes available to the Bureau from this subsection relieves the Bureau of time to time. Because the Bureau almost al- court-imposed obligation prepare an envi- ways possess will information that satisfies statement, id., ronmental support see cannot clause, this authorization, it would eviscerate the expansive statutory interpretation Bureau ascertain urged by my colleagues. Because fact-investi- “currently on the basis of available” informa- gation factfinding activities are inextrica- exists, overpopulation tion whether an animal bly statement, integral preparation of such a efficacy upon to condition its the absence of all congressional purpose dispense with it can- specified (i) (iv). through information in clauses not, more, reasonably without a be taken as directly 11. Since the District did not Court ad- basis for an inflated construction of the statuto- ry “information,” posed 1333(b)(2), thereby curtailing judi- dress the issues cannot be certain that it did not one word premise reasoning process, cial review of the Bureau’s District Court upon may yet enjoin
“information” which the Bureau relies on remand if, action; proposed grounds it Bureau when decides course other than the Bureau’s treatment of the is the soul of the decision itself. alternative, this action finds am by my colleagues’ also troubled fail- not “rationally grounded” on the informa- concept ure to articulate clear statement, tion This at hand.16 it seems to judicial review their scope under inter- me, strikingly inconsistent the gen- pretation 1333(b)(2). Although Section majority opinion. eral thrust of the say To declare that the Bureau’s discretion that a “rationally grounded” decision bounded,”13 it is difficult “remains to delin- is simply on such information another way on this eate intended constraints discre- *12 saying that the decisionmaker has used in in light holding tion of their the at case arbitrary an or otherwise defective reason- By overturning the District bar. Court’s ing process. Such a faulty deliberative injunction, decision not to dissolve the submit, process, I presented by would the which was on the Bureau’s to based refusal us, case before in which the District Court adequately range deal the winter al- enjoined contemplated Bureau action be- ternative, will allow apparently the the cause it found Bureau’s failure to evalu- Bureau not to limit fact-investigation ate adequately particular course action chooses, as factfinding but to also to arbitrary. Although be the District indulge any manner of reasoning based not precise Court did use the form of words on the hand judicial facts at without proffered by the majority opinion, it could proach. Such an extreme result seems in- easily have found the that Bureau’s intend- consistent with the notice paucity of accord- ed course of action was “rationally not provision ed this statutory by Congress,14 grounded” upon the data had because its by and is indeed belied the fact that Con- deficient consideration the winter gress retained intact the particular statuto- represented an “irrational” eval- provision ry limits the Bureau’s —which that uation of data. I Accordingly, am management activity to the “minimal feasi- my unable to see colleagues’ that view— ble upon which the District Court level” — that proposed Bureau action “rationally not explicitly relied.15 grounded” on the information at hand Perhaps criticism, to my sensitive this enjoined be distinguishes the —either colleagues emphasize hasten to that instant case or their supports apparent in- merely ground on the that environmental im- tivities” must now be construed to include the pact subsidiary promote statements also involve responsibility Bureau’s to and balance gathered. evaluations of the facts variety rangeland alteration, values. This however, does not affect case bar. IV, Maj.Op., pt. p. 13. See 1319. There is no evidence the District Court enjoined proposed the Bureau’s course ac- 1333(b)(2) 14. Section was inserted into the tion because it Rangelands Improvement believed the Bureau had no Public Act of 1978 right duty rather, promote grazing; Committee, H.R.Rep. or Conference No. Cong., perception Cong. it acted its 95th 2d basis of that the Sess. U.S.Code & 1978, p. (1978), proposed unnecessarily pro- Admin.News Bureau’s and after- specifically wards was expense addressed or ac- moted cattle of wild knowledged Congress, public member of see horses on the Challis lands. Further- Cong.Rec. 35903-35904, more, even if the court feels uncertain that the (1978). light 35540-35542 stance, of this circum- appreciated change District Court this “persuasive I would hesitate to find import 1333(a), appropriate response §of reason,” Gressette, see Morris v. 432 U.S. remand case to the District 2411, 2418, 97 S.Ct. 53 L.Ed.2d light change, Court for reconsideration of the (1977), infer intended preclude, today, any as the court does 1333(b)(2) to effect serious curtailment reconsideration Bureau’s failure to as- judicial review. adequately sess alternative. supra. See note Although provision, 1333(a), has re- intact, meaning mained its been has altered Maj.Op., IV, pt. p. See Rangelands Improvement the Public Act of statutory “management words ac- congressional purpose word “infor- trates to halt statutory terpretation of and maximize multiple reason- deterioration encompass the Bureau’s mation” to uses of lands. fact-investigation well ing process as as factfinding activities.17 Immediate II. The Need for Action dispute I emphasize that do not I wish to subsidiary A rationale advanced extending scope by my of Sec- a construction fact-investigation colleagues attempted support or fact- of their tion activities, judi- interpretation statutory word finding nor would I affirm broad reading is that such a required the Bureau to en- “information” effec- cial orders research, congressional intent that immediate studies or tuates gage exhaustive preserve pub- action be taken Challis even evaluations of alternative courses action, They rely particularly upon lic lands.19 compliance if with such orders en- Bureau, after fact-investigation or fact- command tailed additional it has ascertained both that animal over- finding responsibilities part submit, however, exists and that action is population Bureau. the Dis- neces- not, animals, my colleagues sary has con- to remove excess “shall imme- trict Court tend, diately remove excess animals from required an “exhaustive” evaluation18 *13 appropriate manage- of the winter alternative that would so as to achieve rather, I compilation; agree further data it ment levels.”20 cannot that entail this only engage against has mandated that the Bureau directive militates the District decision, specified in rational consideration of a on the Bureau’s Court’s based dis- alternative, on at position course of action based information of the winter view, injunction. hand. In it could not have done dissolve the my provision This less, 1333(b)(2) speaks responsibility only for I believe that Section to the Bureau’s reasonably permit cannot be construed to after it has determined the existence and animals; in an rea- engage arbitrary the Bureau to number of excess as the District noted,21 soning impunity. says nothing with To hold oth- Court it about the process overloads the manner in which the only erwise not Bureau shall ascertain “information,” but, by precluding ju- word the existence of excess horses. number actions, arbitrary only dicial review of such frus- Because the case at bar involves this Bureau, only My colleagues may rarely have will intended their ble” be certain statement, enjoin adequately justify might proposed that courts that the Bureau could never “rationally grounded” proposed in- Bureau action not on action on the basis of this informa- Bureau, “currently formation available” to the tion. The small number of cases that could satisfy only requirement proof to refer to situations in which the court this strict for of “ir- never, rationality” majority finds such action could the basis on would thus foreclose the that information, arbitrary opinion’s apparent meaningful of this be other than or contention that capricious. distinguish judicial This would the case at review the Bureau’s bar, in which the District activities under the Horses Court has held Wild Act has been process preserved. Finally, simply reasoning nothing that there is in fact used arbitrary capricious, legislative history Bureau was not that the text or proposed suggest key Bureau could be the that this arcane distinction is the action never product normally specific of rational deliberation. construction statuto- ry I word “information.” thus would not uti- believe, however, I do not that distinc- any interpret lize the distinction endeavor to tion, majority opinion, if intended scope 1333(b)(2). of § meaningful First, purposeful. ig- either or nores the fact that in each instance the critical 18. See Maj.Op. p. 1319 n. 42. arbitrary defect reasoning process, the Bureau’s action is an suggests which each be 19. See III, Maj.Op., pt. p. similarly. Second, treated does this distinction directly must address the concerns that 20. Id See 16 U.S.C. 1333(b)(2) (Supp. IV prompted 1333(b)(2), have as in enactment of § require necessarily neither case does the court factfinding. fact-investigation additional or 21. See American Horse Protection Ass’n v. Third, apprised because the court never supra App. Kleppe, “currently or aware of all availa- information determination, provision inap- comprehensive plan. latter of a removal And ab- plicable. negotiations sent such or in the event they futile, prove I have reason to no doubt that also look to other state- My colleagues grant expeditious- the District Court would legislative recog- ments in history ly a reasonable motion the Bureau for a action, they interpret nize the heed injunction. partial dissolution of the At prompt these statements to call for or im- rate, injunc- full any compliance legislative history mediate action.22 tion, required only which the Bureau Rangelands Improvement Public Act of 1978, however, rationally consider an identified alternative demonstrates that hand, colleagues did not what based information at should take my say. intend Committee, no more time than necessary digest Conference inserted course, disputed language into Section evaluate available data. Of negoti- 1333(b)(2), ations, expressly dangers warned of the appearances, compliance of hasty Bureau decisionmaking. noted with the will cause some delay that, act, before Bureau can but this delay summary, not threaten agreed does to be so substantial conferees as to
[i]n excess numbers of judicial wild horses and burros warrant elimination of review on Indeed, must be removed from the but matters.25 my these colleagues must be caution exercised deter- contemplate themselves apparently mining what constitutes excess num- proposed Bureau action still be en- bers23 if it is joined and thus in arbitrary, effect that the admit need for prompt must light admonition, not, of this I would event other, recede before the basis of need for expressions diffuse action, need rational promulgate decisionmaking. Accordingly, expan- such sive interpretation 1333(b)(2), agree can neither Section es- that a construction of the *14 since, by pecially placing serious constraints word excluding “information” judicial review, interpretation such Bureau’s reasoning process will result might precipitous allow action Bureau in appreciable delay, any delay nor that caused conflict the overriding statutory goal by that justifies construction the severe enhancing productivity multiple judicial curtailment of imposed. review uses of rangelands. Moreover, cannot see judicial scru-
tiny of the reasoning Bureau’s will process
prevent the Bureau from taking immediate effective present case. The parties did,24 as might, previously they
agree extrajudicially partial herd reduc- prior adoption
tions implementation p. Maj.Op., 22. See place 1317 n. 34. estimáte, much reliance on this counsel’s own admission was made without H.R.Rep. Cong., 23. See No. 95th 2d Sess. any personal knowledge basis of the Bu- Cong. U.S.Code & Admin.News planning process. p. reau's Id. at 1319 n. 39. (1978) (emphasis added). Moreover, counsel his stated belief that a period year time of one would be the outside and the Bureau American Horse Protec- study, limit the Bureau’s such tion previously, Association have twice at the study invariably likely would or even take so Court, agreed partial behest of the District Finally, long. expressed only Id. counsel his Appel- herd reductions. See Brief for Federal length might as to the view of time take the lants at 4. prepare report satisfactory ap- Bureau expressed opinion pellee; he length no My colleagues much of make of time take the Bureau to evaluate the by appellee’s study statement counsel that a alternative in manner that satisfactory appellee satis- might conceivably take requirements injunction. long year. fied as a Id. Maj.Op., See p. 1319 n. believe, I do not however, that we should notes It seems unlikely would sanction limited 6. See American Horse Protection Ass’n v. fact-investigation factfinding by agency, an Kleppe, (D.D.C. 19, 1981) No. 76-1455 Nov. empower judges at but the same time to insist (memorandum 4-6, opinion) reprinted Ap- at agency pursue exhaustive studies of pendix (App.) When limited 129-131. it fashioned facts. Relevant to our different views case, Congress of this the District has authorized Court relied BLM to rationales, variety completing remove horses without one of which was en- pp. supra vironmental the Bureau’s insufficient collection of statement. See data. commonly See American 1318-1319. An EIS Horse Protection Ass’n v. addresses supra Kleppe, options Envtl.L.Rep. much like the “winter however, the District alternative” that Court relied sole- district court has ly study twice Congress on the Bureau’s failure to ordered BLM to scrutinize in detail. When even, permitted roundups alternative when it denied the in the ab- EIS, injunction, sence of information Bureau’s motion to dissolve the from an see was it not addressing Kleppe, American Horse reasoning” the “evaluation Protection Ass’n v. stage supra, App. pre-roundup activity? of BLM’s 129-131. That other theo- conclusion,7 the Bureau’s injunc- motion to dissolve dispute do not leagues injunction has nevertheless hold that tion, not because the Bureau lacked infor-