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Colorado Wild Horse and Burro Coalition, Inc., et al v. Kenneth Lee Salazar

September 13, 2012


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


Plaintiffs challenge the validity of the Bureau of Land Management's ("BLM") decision in 2005 to remove a herd of wild horses west of Douglas Creek in Colorado, on the basis that the decision violates the Wild Free-Roaming Horses and Burros Act ("Wild Horse Act"), 16 U.S.C. § 1331 et seq.*fn1 The Court will dismiss the case because it is not yet ripe for judicial review.

Congress adopted the Wild Horse Act in 1971 and entrusted BLM, an agency within the U.S. Department of the Interior, with responsibility for guarding and maintaining wild free-roaming horses in the American West. The Wild Horse Act provides that "[i]t is the policy of Congress that wild free-roaming horses and burros shall be protected from capture, branding, harassment, or death; and to accomplish this they are to be considered in the area where presently found, as an integral part of the natural system of the public lands." Id. § 1331. It is a violation of federal law to remove a wild free-roaming horse or burro from public lands, convert a wild free-roaming horse or burro to private use, or kill or harass a wild free-roaming horse or burro. See id. § 1338(a)(1)-(3). Tasked with "protect[ing] and manag[ing] wild free-roaming horses and burros," the Secretary is authorized to "make determinations as to whether and where an overpopulation exists and whether action should be taken to remove excess animals." Id. §§ 1333(a), 1333(b)(1). The term "excess animals" is defined as "wild free-roaming horses or burros (1) which have been removed from an area by the Secretary pursuant to applicable law or, (2) which must be removed from an area in order to preserve and maintain a thriving natural ecological balance and multiple-use relationship in that area." Id. § 1332(f). Section 1333(b)(2) specifically provides an "order and priority" for the removal of excess animals, starting with the old, sick, or lame, to protect the land necessary to sustain an existing herd or herds of animals, within their known territorial limits, which is "devoted principally but not necessarily exclusively to their welfare in keeping with the multiple-use management concept for the public lands," id. § 1332(c) (emphasis added).

As relevant here, BLM initially identified two separate "herd units" in northwestern Colorado, known as the Douglas Creek Herd Unit and the Piceance Basin Herd Unit, located on either side of a ridge called Cathedral Bluffs. Both herd units are located within BLM's White River Resource Area ("WRRA"). In February 1975, BLM conducted its first Unit Resource Analysis*fn2 that included the Douglas Creek area. It noted that the primary land use for the local economy was the oil and gas industry and that no forage had been allocated to wild horse use. A.R. Vol. 4, Tab 14, p. 379.*fn3 The White River Field Office prepared a Management Framework Plan*fn4 for the WRRA in that same year and determined that conditions were not suitable for managing a population of wild horses west of Douglas Creek (the "West Douglas Herd"). It concluded that the West Douglas Herd should be removed because "[t]he increase in oil and gas activities in this area . . . is causing horses to disperse into areas where they did not exist prior to 1971." A.R. Vol. 4, Tab 12, p. 248. In other words, as early as 1975, the "known territorial limits" of the range for wild horses in the West Douglas Herd Area were not devoted principally to the welfare of the horses. Rather, BLM's decision was to remove the horses to allow continued oil and gas development.

The 1975 decision was not acted upon but was also not changed upon review in 1981 and 1997. Still BLM took no actions to remove the wild horses. On August 29, 2005, BLM's White River Field Office issued a proposed Decision Record and a Finding of No Significant Impact*fn5 ("2005 Decision Record") that again recommended a total removal of the wild horses from the West Douglas Herd Area by 2007. A.R. Vol. 1, Tab 54, p. 360. The Colorado State Director approved this recommendation on October 10, 2007, directing that all horses be removed from the West Douglas Herd Area "at the earliest practicable date." A.R. Vol. 1, Tab 12, p. 71.

This time, the White River Field Office moved promptly to propose a gather of the wild horses in the West Douglas Herd Area in 2008. Upon Plaintiffs' suit, this Court ruled that the 2008 Gather Plan*fn6 exceeded BLM's jurisdiction because "[a] prerequisite to removal under the Wild Horse Act is that BLM first determine that an overpopulation exists and that the wild free-roaming horses and burros slated for removal are 'excess animals.'" CWHBC I, 639 F. Supp. 2d at 97-98. This Court reasoned:

[BLM] protest[s] that because wild free-roaming horses will continue to inhabit the Piceance-East Douglas Herd Management Area, BLM's decision to remove the West Douglas Herd will not result in the removal of all the horses historically found in the Douglas Creek wild horse herd unit. . . . The argument misses the point. [BLM] admit[s] that "[t]he area of wild horse use at the passage of the Act was an area of 187,970 acres known as the 'Douglas Creek wild horse herd unit,'" and that the herd unit encompassed the area that the West Douglas Herd now inhabits. . . . [Management of horses in the Piceance-East Douglas HMA] does nothing to remedy BLM's lack of statutory authority to remove non-excess animals historically found in the Douglas Creek herd unit, including the West Douglas Herd Area.

Id. BLM is also required to remove the old, sick, and lame horses first, see 16 U.S.C. § 1333(b)(2)(A), and, implicitly, remove only the number of horses that are needed to protect the land in a herd's traditional area for their "principal[]" but not exclusive use, id. § 1332(c).

Thereafter, when BLM proposed a new gather of wild horses in the West Douglas Herd Area in 2010, Plaintiffs filed this suit. In February 2011, BLM withdrew its 2010 proposal for a gather. See Notice of Withdrawal of September 3, 2010 Decision [Dkt. 27] & Ex. 1. The parties now dispute whether the Court should invalidate the 2005 Decision Record, approved in 2007, and declare that BLM has no authority to zero out the West Douglas Herd or any other herd of wild horses. BLM urges the Court to dismiss this case because, inter alia, it is not ripe for review.*fn7

Jurisdiction requires that a claim be ripe for decision. See Nat'l Park Hospitality Ass'n v. Dep't of Interior, 538 U.S. 803, 808 (2003) ("The ripeness doctrine is drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction." (internal quotation marks and citations omitted)). By requiring that claims be ripe before adjudicating them, courts promote judicial economy, avoid becoming entangled in abstract disputes, and ensure a record adequate to support an informed decision when a case is heard. Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977). To show that a claim is ripe, a plaintiff must demonstrate: (1) the fitness of the issues for judicial decision, and (2) the hardship to the parties caused by withholding court consideration. Nat'l Treasury Emps. Union v. Chertoff, 452 F.3d 839, 854 (D.C. Cir. 2006) (citing Abbott Labs., 387 U.S. at 149). In a case with circumstances similar to those here, the Supreme Court resolved a ripeness challenge by considering: "(1) whether delayed review would cause hardship to the plaintiffs; (2) whether judicial intervention would inappropriately interfere with further administrative action; and (3) whether the courts would benefit from further factual development of the issues presented." Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726, 733 (1998).

BLM argues that the 2005 Decision Record does not authorize any particular site-specific action and that any future decision to gather horses in the West Douglas Herd will be preceded by a gather plan, which requires an environmental review under NEPA and a separate decision record. Plaintiffs contend that the decision is ready for review because BLM's prior attempts to gather the horses demonstrate that BLM refuses to recognize its obligations to wild horses and that the Court must order it to do so. The problem, of course, with BLM's general argument is that the 2005 Decision Record, approved in 2007, very specifically authorized the removal of all horses from the West Douglas Herd Area, an authorization upon which the White River Field Office tried to execute in 2008 and 2010. Nonetheless, the Court concludes that the Complaint should be dismissed on ripeness grounds.

First, deciding not to rule on the 2005 Decision Record at this time will not result in hardship to Plaintiffs. Given that BLM must complete an environmental assessment and propose a separate decision record before any gather of horses in the West Douglas Herd, the 2005 Decision Record has no immediate effect. If BLM issues a new gather plan, Plaintiffs "will have ample opportunity later to bring [their] legal challenge at a time when harm is more imminent and more certain."*fn8 Id. at 734.

Second, a decision now would interfere with further administrative action because BLM still can and, in fact, must, make an excess determination before a gather takes place. See id. at 735 ("[T]he possibility that further consideration will actually occur before the [p]lan is implemented is not theoretical, but real."). By its decision in 2009, this Court ordered BLM to comply with the Wild Horse Act and to remove only those horses deemed in excess, as the statute commands. CWHBC I, 639 F. Supp. 2d at 98. BLM is bound by the Court's order.*fn9

Indeed, BLM states that "the excess determination may be made in the gather plan and supporting NEPA document" and further that "it is particularly appropriate to make the excess determination in the gather plan because circumstances on the range may have changed ...

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