The opinion of the court was delivered by: ROYCE C. LAMBERTH
This matter comes before the court on cross-motions for summary judgment. The court finds that there are no genuine issues of material fact, and that defendants are entitled to summary judgment as a matter of law, dismissing this case.
At issue is the validity of a regulation of the Bureau of Land Management ("BLM") of the United States Department of Interior, 43 C.F.R. § 4770.3(c), that allows a delegated field officer ("authorized officer") of BLM to make and place in full force and effect a decision to remove wild horses or burros pursuant to the Wild and Free-Roaming Horses and Burros Act ("Wild Horse Act", or "the Act"), 16 U.S.C. § 1331 et seq.
The Wild Horse Act was enacted in 1971, and it "extended federal protection to wild horses and empowered BLM to manage horses roaming public ranges as a part of the Agency's management of the public lands." American Horse Protection Association v. Watt, 224 U.S. App. D.C. 335, 694 F.2d 1310, 1311 (D.C. Cir. 1982).
Because overpopulation of wild horses and burros resulted from passage of the 1971 Act, Congress in 1978 amended the Act through the Public Rangelands Improvement Act of 1978. These amendments seemed to strike a new balance between "protecting wild horses and competing interests in the resources of the public range." American Horse Protection Association v. Watt, 694 F.2d at 1316. The amendments made clear the importance of management of the public range for multiple uses, rather than emphasizing wild horse needs. Id. The legislative history makes clear that one of Congress' goals was to "deal with range deterioration in areas where excess numbers of wild-free roaming horses and burros exist." H.R. Rep. No. 1122, 95th Cong., 2nd Sess. 9 (1978). The House Report indicated that the Wild Horse Act had been so successful that the numbers of wild horses and burros "now exceed the carrying capacity of the range. Excess numbers of horses and burros pose a threat to wildlife, livestock, the improvement of range conditions, and ultimately their own survival." Id., at 21.
The Wild Horse Act was specifically amended, then, to require "immediate" removal of excess horses. 16 U.S.C. § 1333(b)(2). When a determination is made that there is an over-population of wild horses, action is required based on the knowledge currently available, even if it is not complete. American Horse Protection Association v. Watt, 224 U.S. App. D.C. 335, 694 F.2d 1310 at 1317. Adjustments can be made later, but the endangered and rapidly deteriorating range cannot wait. Id.
Another part of the legislative history of the 1978 Amendments clearly sets forth Congress' goal:
H.R. Rep. No. 1737, 95th Cong., 2nd Sess., 15 (1978).
By 1991, it became clear to BLM that it was having difficulty complying with the Congressional mandate to take "immediate" action when there were determined to be excess wild horses and burros. Because any person adversely affected had a right to appeal to the Interior Board of band Appeals ("IBLA"), and because Interior Department regulations generally did not allow the decision to take full force and effect until IBLA's ruling, many removal decisions were delayed up to two years. Even when the Interior procedures were followed to allow decisions to be placed in full force and effect pending a final decision by IBLA, there was always a delay of months.
After publishing a proposed rule for notice and comment in 1991 (56 Fed. Reg. 30372), the final rule at issue here was adopted on June 5, 1992, published in the Federal Register on July 6, 1992, and became effective August 5, 1992. 57 Fed. Reg. 29651. The Wild Horse Act specifically authorizes the Secretary to adopt such regulations "as he deems necessary" to carry out the Act. 16 U.S.C. § 1336.
The regulation at issue, 43 C.F.R. § 4770.3(c), provides that:
"The authorized officer may place in full force and effect decisions to remove wild horses and burros from public or private lands if removal is required by applicable law or to preserve or maintain a thriving ecological balance and multiple use relationship. Full force and effect decisions shall take effect on the date specified, regardless of an appeal. Appeals and petitions for stay of decisions shall be filed with the Interior Board of Land Appeals as specified in this part."
The revised regulation therefore allows an "authorized officer" to place in full force and effect a decision to remove wild horses and burros, while still allowing persons adversely affected to appeal. The change is that the adversely affected person now must obtain a stay, either from IBLA or from a U.S. District Court, to stop the decision from being implemented while an appeal is pending. Prior to the change, there was ...