Joel Ban (Utah Bar No.

10114)
Ban Law Office P.C.
170 S. Main #250
Salt Lake City, UT 84101
TEL: (801) 532-2447
FAX: (860) 770-6223
joel@banlawoffice.com

Caitlin T. Zittkowski (admitted pro hac vice)
Katherine A. Meyer (admitted pro hac vice)
Michelle D. Sinnott (admitted pro hac vice)
Meyer Glitzenstein & Crystal
1601 Connecticut Ave., NW, Suite 700
Washington, DC 20009
TEL: (202) 588-5206
FAX: (202) 588-5049
kmeyer@meyerglitz.com
czittkowski@meyerglitz.com
msinnott@meyerglitz.com

Attorneys for Defendant-Intervenors;
American Wild Horse Preservation Campaign,
The Cloud Foundation, Return to Freedom,
John Steele, and Lisa Friday

IN THE UNITED STATES DISTRICT COURT - DISTRICT OF UTAH
CENTRAL DIVISION

WESTERN RANGELAND )
CONSERVATION ASSOCIATION, et al. )
)
Plaintiffs, )
) No. 2:14-cv-00327-DB
v. )
) Judge Dee Benson
SALLY JEWELL in her official capacity as )
Secretary, UNITED STATES DEPARTMENT ) MOTION FOR JUDGMENT
of the INTERIOR, et al. ) ON THE PLEADINGS
)
Defendants )
)

Case 2:14-cv-00327-DB Document 45 Filed 10/21/14 Page 1 of 24
TABLE OF CONTENTS
PAGE
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

MOTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

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

BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I. Relevant Statutory Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

A. The Wild Free-Roaming Horses and Burros Act. . . . . . . . . . . . . . . . . . . . . . . . 3

B. The Taylor Grazing Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

II. Relevant Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

I. WRLCAs Complaint Fails to State a Cognizable Claim for Removal of
Wild Horses From Public Lands . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

A. Government Defendants Do Not Have a Mandatory, Non-Discretionary
Duty to Remove Wild Horses From Public Lands. . . . . . . . . . . . . . . . . . . . . . . . 10

B. BLM Has Not Made The Necessary Excess Determinations Required
To Remove Wild Horses From Public Lands. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

II. WRLCAs Complaint Also Fails to State a Cognizable Claim for Removal of
Wild Horses From Private Lands . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

A. BLMs Obligation To Remove Wild Horses From Private Lands Is Not A
Ministerial Duty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14

B. Even If BLM Has a Duty to Remove Wild Horses From Private Lands,
Any Delay in Taking Such Action Is Not Unreasonable. . . . . . . . . . . . . . . . . .15

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Case 2:14-cv-00327-DB Document 45 Filed 10/21/14 Page 2 of 24
ii

TABLE OF AUTHORITIES
CASES PAGE
Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007) .................................................................................................................. 12

Carpet, Linoleum and Resilient Tile Layers v. Brown,
656 F.2d 564 (10th Cir. 1981) ................................................................................................... 19

Clappier v. Flynn,
605 F.2d 519 (10th Cir.1979) ...................................................................................................... 9

Colo. Wild Horse and Burro Coal., Inc. v. Salazar,
639 F. Supp. 2d 87 (D.D.C. 2009) .............................................................................. 7, 8, 14, 16

Cutler v. Hayes,
818 F.2d 879 (D.C. Cir. 1987) ................................................................................................. 19

Forest Guardians v. Babbitt,
174 F.3d 1178 (10th Cir. 1999) ........................................................................................... 17, 18

Fund for Animals, Inc. v. U.S. Bureau of Land Mgmt.,
460 F.3d 13 (D.C. Cir. 2006) ...................................................................................................... 7

In Def. of Animals v. U.S. Dep't of Interior,
909 F. Supp. 2d 1178 (E.D. Cal. 2012) ....................................................................................... 7

In re Int'l Chem. Workers Union,
958 F.2d 1144 (D.C. Cir. 1992) ................................................................................................ 18

Kane Cnty. Utah v. Salazar,
562 F.3d 1077 (10th Cir. 2009) ................................................................................................. 13

McHenry v. Utah Valley Hosp.,
927 F.2d 1125 (10th Cir. 1991) ................................................................................................. 11
Mock v. T.G. & Y. Stores Co.,
971 F.2d 522 (10th Cir. 1992) ................................................................................................... 11

Myers v. Koopman,
738 F.3d 1190 (10th Cir. 2013) ........................................................................................... 11, 13
Case 2:14-cv-00327-DB Document 45 Filed 10/21/14 Page 3 of 24
iii


Norton v. S. Utah Wilderness Alliance,
542 U.S. 55 (2004) .................................................................................... 4, 5, 12, 13, 16, 17, 19

O'Toole v. Northrop Grumman Corp.,
499 F.3d 1218 (10th Cir. 2007) ................................................................................................... 9

Qwest Commc'n Intern., Inc. v. FCC,
398 F.3d 1222 (10th Cir. 2005) ................................................................................................. 18

Sanders v. Mountain Am. Fed. Credit Union,
689 F.3d 1138 (10th Cir. 2012) ................................................................................................. 11

Shawnee Trail Conservancy v. Nicholas,
343 F. Supp. 2d 687 (S.D. Ill. 2004) ......................................................................................... 17

Smith v. United States,
561 F.3d 1090 (10th Cir. 2009) ........................................................................................... 11, 17

Tal v. Hogan,
453 F.3d 1244 (10th Cir. 2006) ................................................................................................... 9

United States v. Fuller,
409 U.S. 488 (1973) ........................................................................................................ 8, 10, 11

Wynadotte Nation v. Salazar,
939 F. Supp. 2d 1137 (D. Kan. 2013) ................................................................................. 18, 19

STATUTES
5 U.S.C. 706(1) ........................................................................................ 5, 12, 13, 16, 17, 18, 19

16 U.S.C. 1331 ......................................................................................................................... 4, 5

16 U.S.C. 1332(f) ................................................................................................................... 7, 14

16 U.S.C. 1333 ........................................................................................... 4, 5, 6, 7, 8, 13, 14, 15

16 U.S.C. 1334 ................................................................................................................... 4, 8, 16

Case 2:14-cv-00327-DB Document 45 Filed 10/21/14 Page 4 of 24
iv


28 U.S.C. 1361 ..................................................................................................................... 12, 19

42 U.S.C. 4321-4370 ................................................................................................................. 6

43 U.S.C. 315 ............................................................................................................................... 9

43 U.S.C. 315b ......................................................................................................................... 8, 9

43 U.S.C. 315f ............................................................................................................................. 8

43 U.S.C. 315-315r .................................................................................................................... 8

43 U.S.C. 1712 ....................................................................................................................... 6, 15

43 U.S.C. 1902 ........................................................................................................................... 15

RULES AND REGULATIONS
Fed. R. Civ. P. 12(b)(6)................................................................................................................. 11

Fed. R. Civ. P. 12(c) ................................................................................................................. 3, 11

40 C.F.R. 1502.14(a).................................................................................................................... 6

43 C.F.R. 4700.0-2 ....................................................................................................................... 5

43 C.F.R. 4700.0-5(d) .................................................................................................................. 6

43 C.F.R. 4710.1 .......................................................................................................................... 6

43 C.F.R. 4710.2 ........................................................................................................................ 6

43 C.F.R. 4710.3-1 ....................................................................................................................... 6

43 C.F.R. 4710.5 ............................................................................................................ 7, 8, 9, 13

43 C.F.R. 4720.1 ........................................................................................................................ 14

43 C.F.R. 4720.2-1 ........................................................................................................... 8, 17, 19

Case 2:14-cv-00327-DB Document 45 Filed 10/21/14 Page 5 of 24
v

43 C.F.R. 4120.3-1(c) ................................................................................................................ 11

43 C.F.R. 4120.3-2 ..................................................................................................................... 11

Case 2:14-cv-00327-DB Document 45 Filed 10/21/14 Page 6 of 24
MOTION

Pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, Defendant-Intervenors
American Wild Horse Preservation Campaign (AWHPC), The Cloud Foundation, Return to
Freedom, John Steele, and Lisa Friday (hereinafter referred to as Defendant-Intervenors or
AWHPC) move for judgment on the pleadings in this case. As demonstrated below, Plaintiffs
Complaint fails to state a claim under the Wild Free-Roaming Horses and Burros Act or the
Administrative Procedure Act that provides the Court with a basis to issue the requested relief.
As a result, Defendant-Intervenors respectfully request that the Court dismiss all of Plaintiffs
claims.
INTRODUCTION
Plaintiffs Western Rangeland Conservation Association and individual grazing allotment
permittees (collectively Plaintiffs or WRLCA) have requested that the Court order Federal
Defendants the Bureau of Land Management, et al., (BLM) to immediately remove wild
horses from public lands in Utah, including the Blawn Wash Herd Area (HA), several Herd
Management Areas (HMAs), and lands administered by the School and Institutional Trust
Lands Administration (SITLA), in addition to Plaintiffs privately owned lands. Compl. at 2,
ECF No. 2. Plaintiffswho represent the interests of livestock owners that view wild horses as
competition for the limited forage available on public landscontend that Federal Defendants
have failed to discharge a mandatory duty to remove wild horses from these public and private
lands. See, e.g., Compl. 69-71; see also id. 5 (alleging that [t]hese horses have consumed
Case 2:14-cv-00327-DB Document 45 Filed 10/21/14 Page 7 of 24
2

available forage, damaged riparian areas and damaged springs, all to the detriment of the
[Plaintiffs] ability to maintain [their] livestock operations).
1

In their Complaint, Plaintiffs attempt to cast BLMs duty to manage wild horses under
the Wild Free-Roaming Horses and Burros Act (WHA), 16 U.S.C. 1331-1340, as
mandatory and non-discretionary, Compl. 69-71. However, as the relevant statutes and
facts make clear, BLM does not have a non-discretionary duty to remove any of these wild
horses at this time. Therefore, Plaintiffs claims simply amount to attempts to elevate their
private interests in grazing their livestock on public lands at BLMs discretion above the publics
interest in ensuring BLM protects and preserves wild horses on the range, as required by the
WHA. As the Supreme Court has recognized, BLMs broad statutory mandate to manage
wild free-roaming horses under the WHA is steeped in discretion, Norton v. S. Utah Wilderness
Alliance, 542 U.S. 55, 66-67 (2004), as is the agencys ability to decide when and how best to
arrange for the removal of horses that have strayed onto private lands. See 16 U.S.C. 1334.


Furthermore, any duty BLM has to remove wild horses from public lands is only
triggered upon the agencys determination, pursuant to the process provided by the WHA, 16
U.S.C. 1333(b), that excess wild horses exist on these public lands, which BLM simply has
not done here with respect to any of the public lands about which Plaintiffs complain.
Moreover, even if Federal Defendants have a non-discretionary duty to remove wild
horses from the private lands at issue, any delay in taking such action has not been
unreasonable under the present circumstances within the meaning of the Administrative
Procedure Act (APA), 5 U.S.C. 706(1). Therefore, because Plaintiffs Complaint fails to

1
Federal Defendants have denied this allegation. See Federal Defs. Answer 5, ECF No. 43;
see also id. 40 (Defendants deny the allegations . . . that the damage to rangeland resources
have been caused by excess wild horses.).
Case 2:14-cv-00327-DB Document 45 Filed 10/21/14 Page 8 of 24
3

state a viable claim in support of its request that the Court order BLM to remove hundreds of
wild horses from the range in Utah, Defendant-Intervenors move for judgment on the pleadings,
and request that the Court dismiss all of Plaintiffs claims.
BACKGROUND
I. Relevant Statutory Provisions
A. The Wild Free-Roaming Horses and Burros Act
Congress enacted the WHA in 1971, proclaiming wild free-roaming horses and burros to
be a national esthetic resource and living symbols of the rugged independence and tireless
energy of our pioneer heritage. S. Rep. No. 92-242, at 1 (1971). Congress further declared that
wild free-roaming horses and burros contribute to the diversity of life forms within the Nation
and enrich the lives of the American people. 16 U.S.C. 1331. Thus, Congress sought to
guarantee that wild free-roaming horses and burros shall be protected from capture, branding,
harassment, [and] death, and be considered in the area where presently found, as an integral
part of the natural system of the public lands. Id. (emphasis added).
The WHA directs the Secretary of the Department of Interior, through BLM, to protect
and manage wild free-roaming horses and burros as components of the public lands. 16 U.S.C.
1333(a) (emphasis added); 43 C.F.R. 4700.0-2 (instructing BLM to manage wild horses and
burros under the principle of multiple use.). As a result, protection of wild horses and burros
must be considered during the preparation and amendment of Resource Management Plans
(RMPs), which are prepared for public lands pursuant to the Federal Land Policy Management
Act (FLPMA). See 43 U.S.C. 1712(a) (requiring the preparation of land use plans for public
lands); see also BLM, Manual 4710 - Management Considerations, Rel. 4-112, at 4 (July 7,
2010) (BLM Manual 4710) (requiring that wild horses be considered in preparation of RMPs).
Case 2:14-cv-00327-DB Document 45 Filed 10/21/14 Page 9 of 24
4

The WHA further provides that the Secretary shall manage wild free-roaming horses
and burros in a manner that is designed to achieve and maintain a thriving natural ecological
balance on the public lands. 16 U.S.C. 1333(a). To accomplish this directive, the Secretary
shall maintain a current inventory of wild free-roaming horses and burros on given areas of the
public lands, id. 1333(b)(1), which BLM does for individual herd management areas
(HMA). 43 C.F.R. 4710.2, 4710.3-1; see BLM Manual 4710 at 9-10 (procedures for
conducting population inventories.).
Under WHA regulations, an HMA is established for the maintenance of wild horse and
burro herds, 43 C.F.R. 4710.3-1, based on the geographic areas that were used by these
animals in 1971 when the WHA was enacted. 43 C.F.R. 4700.0-5(d). HMAs are designated
and modified in RMPs through BLMs land use planning process. 43 C.F.R. 4710.1; BLM,
Wild Horses and Burros Management Handbook H-4700-1, Rel. 4-116, at 7-8 (June 2010)
(BLM Handbook).
BLM sets an appropriate management level (AML) for each HMA through a planning
process that requires public notice and comment, as well as compliance with the National
Environmental Policy Act (NEPA), 42 U.S.C. 4321-4370the statute that requires all
agencies to examine the environmental impacts of their decisions, to avoid adverse
environmental impacts when possible, and to [r]igorously explore alternative actions that
would have fewer adverse impacts, 40 C.F.R. 1502.14(a). BLM Handbook at 18. These
AMLs are determined through revisions to the applicable [RMP]. In Def. of Animals v. U.S.
Dept of Interior, 909 F. Supp. 2d 1178, 1192 (E.D. Cal. 2012), affd, 751 F.3d 1054 (9th Cir.
2014).
Case 2:14-cv-00327-DB Document 45 Filed 10/21/14 Page 10 of 24
5

Because the WHA requires that [a]ll management activities shall be at the minimal
feasible level, 16 U.S.C. 1333(a), AMLs are expressed as a population range within which
[wild horses and burros] can be managed for the long term in a given HMA without resulting in
rangeland damage. BLM Handbook at 16-17. The local BLM offices have significant discretion
to determine their own methods of computing AML[s] for the herds they manage. Fund for
Animals, Inc. v. U.S. Bureau of Land Mgmt., 460 F.3d 13, 16 (D.C. Cir. 2006).
The WHA allows BLM to manage wild horses and burros by removing excess animals
from the public lands, but only after BLM determines that (1) an overpopulation [of wild
horses] exists on a given area of the public lands and (2) action is necessary to remove excess
animals. 16 U.S.C. 1333(b)(2); see also Colo. Wild Horse and Burro Coal., Inc. v. Salazar,
639 F. Supp. 2d 87, 98 (D.D.C. 2009) (A prerequisite to removal under the [WHA] is that BLM
first make an excess determination.). Further, the term excess animals is specifically defined
in the Act as those wild free-roaming horses or burros that must be removed from an area in
order to preserve and maintain a thriving natural ecological balance and multiple-use
relationship in that area. 16 U.S.C. 1332(f) (emphasis added).
2

In addition to removing excess wild horses and burros from public lands, BLM has
discretion to close appropriate areas of the public lands to grazing use by all or a particular kind
of livestock in order to provide habitat for wild horses or burros. 43 C.F.R. 4710.5(a). BLM
may close public lands to grazing permanently or temporarily [a]fter appropriate public
consultation, id. 4710.5(c), which entails a site-specific environmental analysis and issuance

2
It is important to note that the terms excess and overpopulation are not interchangeable
within the WHA, as demonstrated by the requirement that BLM shall maintain a current
inventory of wild free-roaming horses and burros on given areas of the public lands . . . [to]
make determinations as to whether and where an overpopulation exists and whether action
should be taken to remove excess animals. . . . 16 U.S.C. 1333(b) (emphasis added).
Case 2:14-cv-00327-DB Document 45 Filed 10/21/14 Page 11 of 24
6

of a proposed and final decision. BLM Handbook at 9. Once that process has been completed,
BLM must then issue a formal Notice of Closure to the affected and interested parties. 43
C.F.R. 4710.5(c).
Section 4 of the WHA provides that [i]f wild free-roaming horses or burros stray from
public lands onto privately owned land, the owners of such land may inform the [BLM], wh[ich]
shall arrange to have the animals removed. 16 U.S.C. 1334. BLMs long-standing regulations
explain how this provision of the statute is satisfied. They provide that [u]pon written request
from the private landowner to any representative of the [BLM], [BLM] shall remove stray wild
horses and burros from private lands as soon as practicable. 43 C.F.R. 4720.2-1.
B. The Taylor Grazing Act
Under the Taylor Grazing Act (TGA), 43 U.S.C. 315-315r, the Secretary of the
Interior, through BLM, is authorized to issue permits for the grazing of livestock on public
lands upon the payment . . . of reasonable fees. 43 U.S.C. 315b. However, the statute makes
clear that the creation of a grazing district or the issuance of a [grazing] permit . . . shall not
create any right, title, interest, or estate in or to these public lands. Id. (emphasis added); see
also United States v. Fuller, 409 U.S. 488, 494 (1973) (The provisions of the [TGA]. . . make
clear the congressional intent that no compensable property might be created in the permit lands
themselves as a result of the issuance of the permit.) (emphasis added). The TGA further
provides that the Secretary is authorized, in his discretion, to . . . classify any lands . . . within a
grazing district as more valuable or suitable for any other use, 43 U.S.C. 315f (emphasis
added), including use by wild horses that are required to be protected under the WHA. 16 U.S.C.
1333(a); see also 43 C.F.R. 4710.5(a) (BLM may prohibit grazing on the public lands where
necessary to protect wild horses).
Case 2:14-cv-00327-DB Document 45 Filed 10/21/14 Page 12 of 24
7

II. Relevant Facts
According to BLM estimates, there are over 3,000 wild horses and burros currently
living in Utah on nineteen different HMAs, which range in size from 37,000 to over 293,000
acres. See Compl. Exhibit (Ex.) A at 1-2. Ranchers use these same public lands to graze
livestock pursuant to permits issued under the Taylor Grazing Act, see 43 U.S.C. 315, at
below-market, taxpayer-subsidized rates.
3
In fact, BLM has issued over 1,400 grazing permits in
Utah, providing for over 1.3 million animal unit months (AUMs) of livestock grazing use.
4

These grazing allotments cover 22 million acres in the state,
5
while HMAs for wild horses
account for less than 2.5 million acres, see Compl. Ex. A at 1-2. Although such grazing permits
do not confer any entitlement to these public lands, see 43 U.S.C. 315b, the ranchers
nevertheless view wild horses and burros as competition for the limited resources on the range,
see Compl. 38, 41, 59.
On April 30, 2014, WRLCA filed a Complaint seeking to compel BLM to remove wild
horses not only from private lands, but also from federal and state-administered public lands

3
According to a recent study by the Congressional Research Service, BLM charged $1.35 per
animal unit month (AUM)a months use and occupancy of the range by one animal
through February 2013, which is the lowest fee that can be charged and is significantly less
than market value. Carol Hardy Vincent, Cong. Research Serv., RS21232, Grazing Fees:
Overview And Issues 1 (2012), available at http://fas.org/sgp/crs/misc/RS21232.pdf. This report
also explains that BLM typically spend[s] far more managing their grazing programs than they
collect in grazing fees, with one study estimating that the federal cost of an array of BLM and
other agency programs that benefit grazing or compensate for the impacts of grazing is roughly
$500 million annually in taxpayer dollars. Id. at 2; see also Tal v. Hogan, 453 F.3d 1244, 1264
n.24 (10th Cir. 2006) (explaining the Court may consider facts subject to judicial notice . . .
without converting the motion . . . into a motion for summary judgment) (citations omitted);
Clappier v. Flynn, 605 F.2d 519, 535 (10th Cir.1979) (courts may properly take notice of official
government publications).
4
U.S. Department of the Interior, Bureau of Land Management, Grazing, http://www.blm.gov
/ut/st/en/prog/grazing.html (last updated March 4, 2011); see also O'Toole v. Northrop Grumman
Corp., 499 F.3d 1218, 1225 (10th Cir. 2007) (It is not uncommon for courts to take judicial
notice of factual information found on the world wide web.).
5
U.S. Department of the Interior, Bureau of Land Management, Grazing, supra note 5.
Case 2:14-cv-00327-DB Document 45 Filed 10/21/14 Page 13 of 24
8

across the state of Utah used by the Plaintiffs and their members to graze their livestock. See
Compl. at 20-21. Specifically, the Plaintiffs seek to have this Court order (1) the immediate
removal of what they assert are excess wild horses above appropriate management levels from
several HMAs and one HA; (2) the immediate removal of excess wild horses from other public
lands, including certain school section lands that are managed by the Utah School and
Institutional Trust Lands Administration (SITLA) outside the aforementioned HMAs and HA,
and; (3) the immediate removal of wild horses from private lands outside of the aforementioned
HMAs and HAs. See id. Plaintiffs requested relief seeks to eliminate hundreds of wild horses
from Utah in order to reduce the competition for limited resources on the range and ensure
ranchers unbridled access to public lands for grazing livestock.
Plaintiffs referenced, and attached to their Complaint, letters from BLM to two of the
individual Plaintiffs. See Compl. 32-33; Compl. Ex. B (January 27, 2014 letter to Plaintiff
Wintich); Compl. Ex. C (December 11, 2013 letter to Plaintiff Platt). In these letters, BLM
expressed concern about the damage livestock was causing on the public lands in Utah and
encourage[d] [the individual Plaintiffs] to evaluate [their] livestock operation[s] and
allotment[s] . . . and make adjustments to livestock numbers so as to ensure proper
manage[ment] [of] the public land resources of healthy rangelands. Compl. Ex. C. at 1
(emphasis added). To further minimize the damage to public lands caused by livestock, BLM
also require[ed] the permittee[s] . . . to maintain range improvements (fences) on public lands
before using the pastures within these HMAs, in accordance with 43 C.F.R. 4120.3-1(c) and
4120.3-2. Id. BLMs letters further explained that BLMs wild horse and burro program will not
have the budget or space to give approval to remove any wild horses in fiscal year 2014. Id.
Federal Defendants also stated that, in addition to budget cuts and increased costs of running the
Case 2:14-cv-00327-DB Document 45 Filed 10/21/14 Page 14 of 24
9

wild horse and burro program, [t]here currently is no place to put horses removed from the
range as wild horse and burro holding facilities are filled to capacity, and therefore the agency
must plan for no wild horse gathers or removals in . . . 2014. Id. (emphasis added).
6

On September 5, 2014, this Court granted AWHPCs motion to intervene in this case. See
ECF No. 40. On September 22, 2014, Federal Defendants filed their Answer to the Plaintiffs
Complaint. See ECF No. 43.
ARGUMENT
Under the Federal Rules of Civil Procedure, [a]fter the pleadings are closedbut early
enough not to delay triala party may move for judgment on the pleadings. Fed. R. Civ. Pro.
12(c). Dismissing a case based on the pleadings is appropriate when the moving party has
clearly established that no material issue of fact remains to be resolved and the party is entitled to
judgment as a matter of law. Sanders v. Mountain Am. Fed. Credit Union, 689 F.3d 1138, 1141
(10th Cir. 2012) (citation omitted). A motion for judgment on the pleadings is treated as a
motion to dismiss under Fed. R. Civ. P. 12(b)(6), Mock v. T.G. & Y. Stores Co., 971 F.2d 522,
528 (10th Cir. 1992) (citing McHenry v. Utah Valley Hosp., 927 F.2d 1125, 1126 (10th Cir.
1991)), and therefore dismissal is appropriate if the complaint fail[s] to state a claim to relief
that is plausible on its face. Myers v. Koopman, 738 F.3d 1190, 1193 (10th Cir. 2013) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). As explained below, Plaintiffs
Complaint fails to state a claim for relief under the APA 706(1) or the Mandamus Act, 28
U.S.C. 1361, that is plausible on its face. As a result, the Court should dismiss all of
Plaintiffs claims.

6
Because Plaintiffs referenced and attached these documents to their Complaint, the Court may
rely on these documents in resolving the instant motion. See, e.g., Smith v. United States, 561
F.3d 1090, 1098 (10th Cir. 2009) (citations omitted).
Case 2:14-cv-00327-DB Document 45 Filed 10/21/14 Page 15 of 24
10

I. WRLCAs COMPLAINT FAILS TO STATE A COGNIZABLE CLAIM FOR
REMOVAL OF WILD HORSES FROM PUBLIC LANDS

A. Government Defendants Do Not Have A Mandatory Duty To Remove
Wild Horses From Public Lands.

Plaintiffs contention that BLM has fail[ed] and refus[ed] to immediately remove excess
wild horses from the specified HMAs and HA, and that the Court should therefore order BLM
to remove these horses immediately as agency action unlawfully withheld or unreasonably
delayed, Compl. 54, 60, must fail in light of the standards set forth for such claims by the
Supreme Court in Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 64 (2004). In that
case, the Court held that a claim for agency action unlawfully withheld or unreasonably
delayed within the meaning of the APA can proceed only where a plaintiff asserts that an
agency failed to take a discrete agency action that it is required to take. Id.; id. at 63, n.1
(explaining claims for agency actions unreasonably delayed must also pertain to
nondiscretionary actions because a delay cannot be unreasonable with respect to action that is
not required).
In Norton, the Court explained that [t]he principal purpose of the APA limitations . . .
and of the traditional limitations upon mandamus from which they were derivedis to protect
agencies from undue judicial interference with their lawful discretion, and to avoid judicial
entanglement in abstract policy disagreements which courts lack both expertise and information
to resolve. Id. at 66 (emphasis added). Moreover, as an example of a broad statutory mandate
for which mandamus would not be appropriate, the Court pointed to the WHAs directive to
BLM to manage wild free-roaming horses and burros in a manner that is designed to achieve
and maintain a thriving ecological balance on the public lands, 16 U.S.C. 1333. Norton, 542
U.S. at 66. (emphasis added). More specifically, encompassed within this statutory grant of
Case 2:14-cv-00327-DB Document 45 Filed 10/21/14 Page 16 of 24
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agency authority, 16 U.S.C. 1333(b) confers discretion upon the agency to determine whether
and where excess wild horses exist, as well as whether appropriate management levels should
be achieved by the removal or destruction of excess animals, or other options. Id. (emphasis
added).
In view of the Supreme Courts recognition of the WHAs broad statutory mandate
concerning how BLM manages wild horses on public lands, including whether and when to
remove them, as well as the WHAs grant of discretionary authority to determine whether to
achieve appropriate management levels by pursuing other options besides removal, 16 U.S.C.
1333(a)-(b), including clos[ing] appropriate areas of the public lands to grazing use by all or a
particular kind of livestock in order to provide habitat for wild horses or burros, 43 C.F.R.
4710.5, Plaintiffs have failed to allege a discrete agency action that BLM is required to take
concerning the removal of excess horses from public lands. Accordingly, these claims must be
dismissed. Myers, 738 F.3d at 1193; Kane Cnty. Utah v. Salazar, 562 F.3d 1077, 1086 (10th Cir.
2009) (explaining that in Norton, the Supreme Court held that a claim under 706(1) can
proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it
is required to take).
B. BLM Has Not Made The Necessary Excess Determinations Required
To Remove Wild Horses From Public Lands.

Despite Plaintiffs assertions that BLM has violated the APA, 5 U.S.C. 706(1), by shirking its
duty to immediately remove excess wild horses from the HMAs, HA, and other public lands
at issue, Compl. 54, 60, any statutory duty BLM has to remove excess wild horses from
these public lands is triggered only if and when BLM makes a determination that excess wild
horses exist in these areas. 16 U.S.C. 1333(b); 43 C.F.R. 4720.1; Colo. Wild Horse and
Burro Coal., Inc., 639 F. Supp. 2d at 98 (A prerequisite to removal under the [WHA] is that
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12

BLM first make an excess determination.); id. at 95-96 ([T]he Court finds that Congress
clearly intended to protect non-excess wild free-roaming horses and burros from removal, and
that BLMs removal authority is limited to those wild free-roaming horses and burros that it
determines to be excess animals within the meaning of the Wild Horse Act.) (emphasis added).
Notably, Plaintiffs concede in their Complaint that BLMs duty to remove the excess animals
immediately depends upon BLMs determination . . . that an excess of wild horses or burros
exists. Compl. 48 (emphasis added) (citing 16 U.S.C. 1333(b); 43 C.F.R. 4720.1).
However, neither Plaintiffs Complaint nor their attached Exhibits indicate that BLM has in fact
made any such determinations.
Plaintiffs point to a chart BLM has prepared indicating the estimated wild horse
populations and appropriate management levels for HMAs and HAs in Utah. Pls. Ex. A.
However, nothing in this chart demonstrates that BLM has made a determination that excess
wild horses exist on the Frisco, Four Mile, Bible Springs, Sulphur, Muddy Creek, and North
Hills HMAs, and Blawn Wash HA. Compl. 52-54. Moreover, Plaintiffs assertion that merely
exceeding an AML automatically constitutes the necessary excess determination, Compl. 24,
ignores the process outlined in the WHA for making such determinations.
Thus, under 16 U.S.C. 1333, BLM shall . . . make determinations as to whether and
where an overpopulation exists and whether action should be taken to remove excess animals
based upon:
(i) the current inventory of lands within [its] jurisdiction; (ii) information
contained in any land use planning completed pursuant to [43 U.S.C. 1712]; (iii)
information contained in court ordered environmental impact statements [under
43 U.S.C. 1902]; and such additional information as becomes available . . .
including that information developed in the research study mandated by this
section, or in the absence of the information contained in (iiv) above on the basis
of all information currently available to [the agency].

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13

16 U.S.C. 1333(b). Only after determining that an overpopulation [of wild horses] exists on a
given area of the public lands and that action is necessary to remove excess animals may BLM
then remove excess animals from the range so as to achieve appropriate management levels.
Id. 1333(b)(2)(iv) (emphasis added).

Indeed, for these very reasons, Federal Defendants have
specifically denied that BLM has made any such determinations. See Federal Defs. Answer
24-25.
Plaintiffs have not presented any evidence in their Complaint demonstrating that BLM
has made any such determination with respect to the HMAs and HA at issue here. Rather, by
asking the Court to order Defendants to immediately remove wild horses from these HMAs and
HA, Plaintiffs attempt to force BLM to leapfrog from a chart of raw data immediately to
rounding up hundreds of wild horses that are protected by federal law, thus circumventing
statutory requirements and ignoring the agencys discretionary authority. See 16 U.S.C.
1333(b)(iv). Nevertheless, because BLMs removal authority is limited to those wild free-
roaming horses and burros that it determines to be excess animals within the meaning of the
[WHA], Colo. Wild Horse and Burro Coal., Inc., 639 F. Supp. 2d at 96, and no such
determination has been made here, Defendants have no obligation to remove wild horses from
any of the public lands identified in the Plaintiffs Complaint. Therefore, this Court has no basis
for ordering BLM to remove any wild horses from these public lands. Hence, the Court should
dismiss this claim.
7


7
Plaintiffs also contend that under the WHA, Defendants are obligated to remove excess wild
horses that exist on the public lands outside the herd management areas, including, but not
limited to, lands managed by the Utah School and Institutional Trust Lands Administration
(SITLA). Compl. 58-59 (emphasis added). However, even assuming BLM has jurisdiction
over these landsa fact that Plaintiffs fail to allege in their Complaintthis claim would also
fail for the same reason, i.e., BLM has not made the requisite determination that excess horses
exist on any such lands.
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14

II. WRLCAs COMPLAINT ALSO FAILS TO STATE A COGNIZABLE CLAIM
FOR REMOVAL OF WILD HORSES FROM PRIVATE LANDS

A. BLMs Obligation To Remove Wild Horses From Private Lands
Is Not A Ministerial Duty.

Plaintiffs additional claim that Defendants have violated the APA, 5 U.S.C. 706(1),
because BLM has not carried out its plainly prescribed, ministerial duty to remove wild
horses and burros that stray from public lands onto privately-owned land, Compl. 63-64, 67,
must also fail. As the Supreme Court has explained, 706(1) empowers a court only to compel
an agency to perform a ministerial or non-discretionary act, or to take action upon a matter,
without directing how it shall act. Norton, 542 U.S. at 64 (emphasis added) (citation omitted).
As explained, the WHA specifies that if wild horses stray from public lands onto
privately owned land, the owners of such land may inform [BLM], [which] shall arrange to have
the animals removed. 16 U.S.C. 1334 (emphasis added). However, this dutyto arrange for
removal of wild horses that have strayed onto private landsalso falls short of the kind of non-
discretionary duty that can be compelled by a court. Norton, 542 U.S. at 64.
As BLMs implementing regulations make clear, BLMs obligation under this section of
the Act is to remove stray wild horses and burros from private lands as soon as practicable. 43
C.F.R. 4720.2-1 (emphasis added). Therefore, despite Plaintiffs protests that the Court must
order the agency to remove these horses immediately, Compl. at 21, neither the statute nor the
agencys implementing regulations establish a deadline by when the agency must arrange to
have such horses removed from private lands. As a result, this claim also fails to identify the
kind of ministerial act that, after Norton, a court can command an agency to take pursuant to
APA 706(1). See Norton, 542 U.S. at 63-64 (explaining that the mandamus remedy upon which
the APA was based requires a precise, definite act . . . about which [an official] ha[s] no
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15

discretion whatever) (citations omitted); cf. Forest Guardians v. Babbitt, 174 F.3d 1178, 1190
(10th Cir. 1999) ([W]hen an entity governed by the APA fails to comply with a statutorily
imposed absolute deadline, it has unlawfully withheld agency action and courts, upon proper
application, must compel the agency to act.); see also Shawnee Trail Conservancy v. Nicholas,
343 F. Supp. 2d 687, 704 (S.D. Ill. 2004) (finding no mandatory duty where regulations did not
stipulate a precise timetable for when [the agency action] must occur). Accordingly, this claim
must also be dismissed.
8

B. Even If BLM Has A Duty To Remove Wild Horses From Private Lands,
Any Delay In Taking Such Action Is Not Unreasonable.

Even assuming that BLM has a mandatory duty to remove wild horses from private lands
as alleged by Plaintiffs, the agencys failure to do so here simply cannot be said to be
unreasonable within the meaning of the APA, 5 U.S.C. 706(1). It is well established that in
actions alleging an agencys failure to act, if an agency has no concrete deadline establishing a
date by which it must act, . . . a court must compel only action that is delayed unreasonably.
Forest Guardians, 174 F.3d at 1190 (emphasis added). The Court of Appeals for this Circuit has
taken into account several factors when deciding whether a court may grant relief for a non-
discretionary agency action that has been delayed, including, for present purposes, both the
reasonableness of the delay in the context of the legislation authorizing agency action, and

8
Since the Supreme Courts decision in Norton, only one federal court has ever characterized
BLMs duty to arrange for the removal of strayed wild horses from private lands as
ministerial. Am. Wild Horse Pres. Campaign v. Jewell, Civ. No. 14-cv-00152-NDF, at *13-14,
(D. Wyo. Aug. 28, 2014). However, this was done solely in the context of ruling on a motion for
a preliminary injunction. Id. Notably, in its Tenth Circuit brief in the appeal of this decision, the
government explicitly disavowed the district courts interpretation of this obligation as
ministerial. See Am. Wild Horse Pres. Campaign v. Jewell, No. 14-8063, Gov. Defs. Br. at 9
n.3 (10th Cir. Sept. 5, 2014). Moreover, this case is now proceeding on the merits. See Docket,
Am. Wild Horse Pres. Campaign v. Jewell, Civ. No. 14-cv-00152-NDF (D. Wyo. 2014)
(showing case still active).
Case 2:14-cv-00327-DB Document 45 Filed 10/21/14 Page 21 of 24
16

administrative difficulties bearing on the agencys ability to resolve an issue. Qwest Commcn
Intern., Inc. v. FCC, 398 F.3d 1222, 1239 (10th Cir. 2005) (citing In re Intl Chem. Workers
Union, 958 F.2d 1144, 1149 (D.C. Cir. 1992)). Administrative difficulties include the
practical difficulty in carrying out the legislative mandate, or need to prioritize in the face of
limited resources. Wynadotte Nation v. Salazar, 939 F. Supp. 2d 1137, 1151 (D. Kan. 2013)
(emphasis added) (citing Qwest Commcn Intern., Inc. 398 F.3d at 1239).
As explained in the letters from BLM to Plaintiffs, which Plaintiffs referenced in their
Complaint, see, e.g., Compl. 32, and attached as exhibits, [i]t is anticipated that nationally the
wild horse and burro program will not have the budget or space to give approval to remove any
wild horses in fiscal year 2014 in light of reductions in program funding, and that [t]here
currently is no place to put horses removed from the range as wild horse and burro holding
facilities are filled to capacity. Compl. Ex. C (emphasis added). These administrative
difficulties, Qwest Commcn Intern., Inc., 398 F.3d at 1239, the practical difficult[ies] in
carrying out the WHAs directive to arrange for the removal of wild horses from private lands
upon notification, Wynadotte Nation, 939 F. Supp. 2d at 1151, as well as the need to prioritize
in the face of limited resources when deciding how to implement the wild horse and burro
program, id.demonstrate that any purported delay on the part of Federal Defendants in
arranging for the removal of wild horses from the private lands is certainly not unreasonable.
See 5 U.S.C. 706(1); see also 43 C.F.R. 4720.2-1 (requiring BLM to remove stray wild
horses and burros from private lands as soon as practicable) (emphasis added); Wynadotte
Nation, 939 F. Supp. 2d at 1153 (finding agency delay not unreasonable where the delay
stem[med] from a lack of resources); id. at 1151 (explaining that inquiry into whether agency
action has been unreasonably delayed is ultimately governed by a rule of reason, which
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17

accounts for the difficulty and complexity of the issue, problems beyond the agencys control,
[and] an agencys need to prioritize its own resources. . . .) (citing Cutler v. Hayes, 818 F.2d
879, 89899 (D.C. Cir. 1987)).
CONCLUSION

Because Plaintiffs have failed to plead any non-discretionary duty that this Court may
command BLM to undertake, Plaintiffs Complaint must be dismissed.
9


Respectfully submitted,
/s/____________________________
Caitlin T. Zittkowski (admitted pro hac vice)
(California Bar No. 290108)
Katherine A. Meyer (admitted pro hac vice)
(D.C. Bar No. 244301)
Michelle D. Sinnott (admitted pro hac vice)
(Virginia Bar No. 85563)

MEYER GLITZENSTEIN & CRYSTAL
1601 Connecticut Ave., N.W. Suite 700
Washington, D.C. 20009
(202) 588-5206

Joel Ban
(Utah Bar No. 10114)

BAN LAW OFFICE P.C.
170 S. Main #250
Salt Lake City, UT 84101
(801) 532-2447

Counsel for Defendant-Intervenors American Wild
Horse Preservation Campaign, The Cloud

9
For all the same reasons, Plaintiffs additional claims for mandamus relief under 28 U.S.C.
1361 must also fail. See Norton, 542 U.S. at 66 (explaining the Courts review of claims under
APA 706(1) is derived from the legal analysis applied to requests for mandamus relief);
Carpet, Linoleum and Resilient Tile Layers v. Brown, 656 F.2d 564, 566 (10th Cir. 1981)
(explaining mandamus relief is appropriate only when the person seeking such relief can show a
duty owed to him by the [agency] . . . that is ministerial) (emphasis added) (citation omitted).
Case 2:14-cv-00327-DB Document 45 Filed 10/21/14 Page 23 of 24
18

Foundation, Return to Freedom, John Steele, and
Lisa Friday

Date: October 21, 2014

Case 2:14-cv-00327-DB Document 45 Filed 10/21/14 Page 24 of 24