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Colorado Wild Horse and Burro Coalition, Inc. v. Salazar

August 5, 2009

COLORADO WILD HORSE AND BURRO COALITION, INC., ET AL., PLAINTIFFS,
v.
KEN SALAZAR, SECRETARY, U.S. DEPARTMENT OF THE INTERIOR,*FN1 ET AL., DEFENDANTS.



The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge

MEMORANDUM OPINION

Plaintiffs challenge the decision of the Bureau of Land Management ("BLM"), an agency of the U.S. Department of the Interior, to remove all wild horses from the West Douglas Herd Area in Colorado. They argue, inter alia, that the decision violates the Wild Free-Roaming Horses and Burros Act ("Wild Horse Act" or "Act"), 16 U.S.C. § 1331 et seq. Defendants counter that BLM's decision to remove the West Douglas Herd is a reasonable exercise of BLM's discretion and is entitled to Chevron*fn2 deference. Before the Court are cross motions for summary judgment.*fn3 For the reasons explained herein, the Court finds that BLM's decision to remove the West Douglas Herd exceeds the scope of authority that Congress delegated to it in the Wild Horse Act. The Court will grant in part Plaintiffs' motion for summary judgment, deny Defendants' cross motion for summary judgment, and set aside BLM's decision.

I. FACTS*fn4

The West Douglas Herd Area encompasses 123,387 acres of federal land managed by BLM and 4,754 acres of private land in Northwestern Colorado, southwest of the town of Rangely and approximately 50 miles north of Grand Junction. It is located within the White River Resource Area. In the first census conducted by BLM in 1974, it counted 9 wild horses in the West Douglas Herd Area.*fn5 BLM estimates that there are now 147 wild horses in the herd area.

In 1975, BLM drafted a White River Resource Area Management Framework Plan*fn6 that provided a framework for managing multiple uses in the area, including the management of the wild horses. In 1980, BLM issued an updated Management Framework Plan which recommended that all horses west of Douglas Creek (later designated as the West Douglas Herd Area) be removed because other resource activities in this area (namely, energy exploration) were causing the horses to disperse into areas where they did not roam in 1971, when the Wild Horse Act was enacted. In 1985, for reasons not fully explained, BLM unsuccessfully attempted to completely remove wild horses from the West Douglas Herd Area.

On July 1,1997, the Colorado State Director of BLM signed a Record of Decision for the White River Resource Area Management Plan that called for the total removal of wild horses in the West Douglas Herd Area by 2007. However, BLM decided to reconsider its decision and to conduct further analysis before commencing the removal of the West Douglas Herd.

On April 28, 2005, BLM published an environmental assessment that considered two alternatives: Alternative A, removing all wild horses from the West Douglas Herd Area by 2007; and Alternative B, managing a small herd of 29-60 wild horses in this area. On August 29, 2005, Kent E. Walter, Field Manager for BLM's White River Field Office, issued a proposed Decision Record and a Finding of No Significant Impact with respect to his decision to implement Alternative A, removing all wild horses from the West Douglas Herd Area. Mr. Walter's proposed decision was protested by five parties, including counsel for Plaintiffs in this case.

By letters dated October 10, 2007, Bud Cribley, BLM's Acting Assistant Director for Renewable Resources and Planning, denied each of the five protests to Mr. Walter's proposed decision to remove all wild horses from the West Douglas Herd Area. Mr. Cribley concluded that the White River Field Office and the Colorado State Director followed the appropriate planning procedures and complied with applicable laws in reaching their decisions. Thereafter, but also on October 10, 2007, the Colorado State Director issued a Decision Record approving Mr. Walter's proposed decision to remove all of the wild horses in the West Douglas Herd Area "at the earliest date."

On July 14, 2008, BLM released its 2008 West Douglas Herd Area Wild Horse Removal Final Decision Record and Environmental Assessment ("2008 Gather Plan"), authored by Mr. Walter, which provided that "[a]ll wild horses will be removed from within and outside the [West Douglas Herd Area] beginning no sooner than October 1, 2008" and that "[t]he gather methods used will include helicopter drive trapping, helicopter assisted roping, water trapping, or bait trapping." See Defs.' Combined Mem. in Opp'n to Pls.' Mot. for Summ. J. & in Supp. of Cross- Mot. for Summ. J. [Dkt. # 71], Ex. 1 at 1. However, the gather never occurred due to a lack of funding. See Defs.' Notice of Postponement of West Douglas Gather [Dkt. # 87]. BLM currently plans to remove 100 horses from the West Douglas Herd Area pursuant to the 2008 Gather Plan beginning on September 27, 2009. See Defs.' Notice of Intent to Conduct Partial Removal [Dkt. # 97].

Plaintiffs are four associations organized to protect wild horses and one equine veterinarian, a former contract veterinarian for BLM, who frequently visits the West Douglas Herd Area to see and enjoy the wild horses. Plaintiffs filed their Third Amended Complaint on March 24, 2009, seeking, inter alia, a declaration that the 2008 Gather Plan exceeds BLM's discretion in the Wild Horse Act and an order setting aside the 2008 Gather Plan as ultra vires. Pending before the Court are cross motions for summary judgment.

II. LEGAL STANDARDS

A. Standard of Review

Under the Administrative Procedure Act ("APA"), 5 U.S.C. § 551 et seq., "[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review."*fn7 Id. § 704. The APA provides that the reviewing court shall "hold unlawful and set aside agency action . . . found to be . . . in excess of statutory jurisdiction, authority, or limitations, or short of statutory right." Id. § 706(2)(C). "To determine if the Secretary has exceeded his statutory authority under 5 U.S.C. § 706(2)(C), the Court must engage in the two-step inquiry required by Chevron." Anna Jacques Hosp. v. Leavitt, 537 F. Supp. 2d 24, 29-30 (D.D.C. 2008). "If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." ...


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