What is the “law of the land” and how should it be enforced? These questions drive the interplay between state and federal governments, particularly in the Rocky Mountain West. This is especially true when you consider that the federal government owns vast areas of the surface of Colorado (35.9%), Wyoming (48.1%) and the other 10 public land states as well as 700 million acres of federal minerals throughout the U.S. See “Federal Land Ownership: Overview and Data,” by the Congressional Research Service dated December 29, 2014.i This state/federal tension regularly leads to conflicts over oil and gas, mining, environmental regulation … and wild horses?
The Wild Free-Roaming Horses and Burros Act was enacted by Congress in 1971 to protect wild horses and burros from “capture, branding, harassment, or death” and, significantly, declares wild horses and burros to be an “integral part of the natural system of the public lands.” The law was enacted in response to a campaign led by “Wild Horse Annie” and has proved to be one of the most difficult management challenges for the Bureau of Land Management (“BLM”). Caught between wild horse lovers, state governments and ranchers, the BLM is spending close to $75 million a year, primarily to feed and care for the bulk of the “wild” horse population off the range in leased pasture. BLM recently testified that there are 67,000 WHB in 10 states and 47,000 are in leased pasture because the population is 2.5 times more than the range can sustain.ii
On August 21, 2014, the State of Wyoming wrote to the Secretary of the Interior and the Acting Director of the Bureau of Land Management (“BLM”) demanding the BLM take action to remove excess wild horses from seven BLM herd management areas (“HMAs”) in southwestern Wyoming. After what it considered to be an inadequate response by the BLM, Wyoming filed suit on December 8, 2014, in Federal District Court to force the BLM to take immediate action to bring the numbers down to the HMA carrying capacity. On April 21, 2015, the District Court dismissed the State’s claims, and now the Tenth Circuit Court of Appeals has affirmed that decision. See Opinion in State of Wyoming v. United States Department of the Interior, et al. Case No. 15-8041 filed October 11, 2016 (10th Cir.). The question the Tenth Circuit addressed was “whether … Section 3 [of the Wild Free-Roaming Horses and Burros Act (the “Act”)] obligated the BLM to gather or otherwise remove excess wild horses from each of the seven HMAs once it learned that the wild horse population in each of those HMAs exceeded the upper limit of their respective AMLs [“appropriate management level”].” Id. at page 9.
In construing the provisions of the Act, the Tenth Circuit held:
As noted, the Act does not define the phrase “appropriate management level” and thus does not equate it with any requirement to remove excess animals from a particular HMA. Nor does the BLM itself define the phrase as equivalent to a determination that removal is necessary. Further, and most importantly, the language of Section 3, as discussed above, clearly requires both a determination by the BLM that “an overpopulation exists on a given area of the public lands and that action is necessary to remove excess animals ….” 16 U.S.C. § 1333(b)(2) (emphasis added). Because only the first of these determinations has been made, the BLM is under no statutory duty to remove animals from the seven HMAs at issue. Moreover, there is nothing in the statute that obligates the BLM to make an immediate determination regarding the second requirement.
Id. at pages 14-15. Thus, until the BLM determines there is both an excess of horses and action is necessary to remove those excess animals, the State of Wyoming cannot force the BLM to act.
In a statement issued after the Tenth Circuit released its opinion, Wyoming Governor Matt Mead said, “The BLM is not managing wild horse populations as required … Wyoming wildlife and wild horses are treasured assets. Mismanagement adversely affects all species and rangelands necessary for their health and survival.” See “In major decision, 10th Circuit rules Wyoming can’t force BLM to remove wild horses,” by Arno Rosenfeld, Casper Star-Tribune dated October 11, 2016.iii While the State of Wyoming considers its options, several other cases are pending in Wyoming, at the Tenth Circuit and in other western states, including Nevada which has the largest population of wild horse, regarding the proper management of wild horse populations on public lands.
The tangle between state and federal governments continues amid an effort to determine the “law of the land.” The Tenth Circuit’s Opinion in the above case can be accessed on its website at https://www.ca10.uscourts.gov/opinion/search by entering the case number “15-8041” in the search field. Links to additional discussion of the Tenth Circuit’s Opinion and issues surrounding wild horse management can also be found at the links below.iv The Tenth Circuit also recently issued an opinion seeking review of the BLM’s decision to remove wild horses from public lands in Wyoming. That case can be accessed on the Tenth Circuit Court’s website listed above by entering the case number “15-8033”.
i www.fas.org/sgp/crs/misc/R42346.pdf
ii http://www.blm.gov/wo/st/en/prog/whbprogram/history_and_facts/quick_facts.html
iii http://trib.com/lifestyles/recreation/in-major-decision-th-circuit-rules-wyoming-can-t-force/article_0a3c5700-e59e-520e-aa91-c053b3c0f7d5.html
iv “Wild Horses Couldn’t Drag the Government to Act,” by Noah Feldman, Bloomberg View dated October 14, 2016 accessed at https://www.bloomberg.com/view/articles/2016-10-14/wild-horses-couldn-t-drag-the-government-to-act and “Success Spoils a U.S. Program to Round Up Wild Horses,” by Dave Philipps, New York Times dated October 14, 2016 accessed at http://www.nytimes.com/2016/10/15/us/wild-horses-us-west.html