Groundbreaking Tenth Circuit Decision Rules That BLM Cannot Treat Public Land As Private Land

For the second time this week, the U.S. Court of Appeals for the Tenth Circuit has ruled in our favor on a precedent-setting issue concerning wild horse management on public lands.  In 2014, the Bureau of Land Management (“BLM”) treated more than a million acres of public land in the Wyoming Checkerboard as private land for purposes of wild horse management.  The “Checkerboard” is a large area in Wyoming that consists of alternating parcels of public and private lands.  Today, the U.S. Court of Appeals for the Tenth Circuit held that BLM violated the Wild Free-Roaming Horses and Burros Act and the Federal Land Policy and Management Act by removing hundreds of federally protected will horses from public lands under the agency’s limited private land removal authority, and in the process ignoring the legal requirements that BLM must satisfy before permanently removing wild horses from public lands.  Because all herd management areas either contain private lands within their boundaries or are adjacent to private lands, today’s ruling has enormous precedential implications for wild horse management throughout the American West.  The ruling can be found here.


Today, the Tenth Circuit issued a resounding victory for wild horse conservation organizations in a case raising important questions of first impression.  In 2014, the State of Wyoming brought a federal lawsuit asserting that the Bureau of Land Management (“BLM”) must permanently remove all federally protected wild horses from seven herd management areas located in Wyoming that were above the respective population minimums set long ago in outdated resource management plans.  Wyoming argued that once wild horse population herds exceeded these outdated population minimums, BLM lacked all discretion to determine whether action is needed to permanently remove the animals from the range.  In 2015, the U.S. District Court for the District of Wyoming dismissed the State’s case, finding that the Wild Free-Roaming Horses and Burros Act vests BLM with broad discretion in determining, based on current data and information, whether action is necessary to remove wild horses from public lands even when they exceed the “Appropriate Management Level.”  Today, the Tenth Circuit affirmed that ruling, holding that the statute clearly affords wide latitude to BLM in determining whether, and when, action is needed to permanently remove animals from the range.  This decision – the first of its kind to be resolved by a federal court of appeals – should have important ripple effects in helping to defeat pending lawsuits filed by other States, municipalities, and livestock grazing associations seeking similar relief in Utah, Nevada, and elsewhere.  The Tenth Circuit’s ruling can be accessed here.

Conservation Groups Once Again Go To Court To Protect Wild Horses In The Wyoming “Checkerboard”

The “Checkerboard” is a large area in Wyoming that consists of both public and private lands.  Under the Wild Free-Roaming Horses and Burros Act, Congress imposed far more stringent requirements for the removal of wild horses from public lands than private lands.  Nonetheless, the Bureau of Land Management (“BLM”) has recently adopted an interpretation of the Act under which BLM can remove horses from public lands in the Checkerboard using only the agency’s authority for private land removals.  Although the legality of that interpretation is presently pending in the U.S. Court of Appeals for the Tenth Circuit in a case we brought on behalf of wild horse advocates, without even awaiting a ruling from the Tenth Circuit BLM has announced another permanent removal of approximately 500 horses based on the same interpretation that we contend is fatally flawed.  Accordingly, we filed suit today in federal court in Wyoming requesting that the court temporarily enjoin BLM’s actions until the Tenth Circuit can resolve the pending appeal, which will determine the limits of BLM’s authority in a situation such as this one.  Because BLM intends to proceed with permanently removing wild horses from these lands in less than two weeks, we are seeking emergency injunctive relief.  The case is American Wild Horse Preservation Campaign v. Jewell, No. 16-cv-246, and the Petition for Review filed today can be found here.


The firm is pleased to announce that Margaret Coulter, who has previously worked with the firm as a law clerk and law fellow, has become an Associate with the firm.   Maggie received her J.D. from the American University Washington College of Law and her M.A. in International Affairs focusing on Global Environmental Policy from the American University School of International Service.  While at the firm, she has worked on behalf of our clients on an array of issues involving the National Environmental Policy Act, the Endangered Species Act, and the Freedom of Information Act, among others.  The firm is very happy to make her an associate.

Federal Court Criticizes Fish and Wildlife Service for “Selling” Export Permit To Yerkes In Violation of Endangered Species Act

On September 14, 2016, the federal district court in D.C. issued a final ruling in our case on behalf of the New England Anti-Vivisection Society (NEAVS) and its coalition of sanctuaries, chimp experts, and individuals challenging the decision by the Fish and Wildlife Service (FWS) to allow Yerkes Research Center to export seven endangered chimpanzees to an unaccredited zoo in England.  Although the Court ruled that the Plaintiffs lacked Article III standing to pursue the case, the Court included some harsh criticism of the FWS’s “pay to play” approach to issuing permits under the Endangered Species Act (ESA) by which it allows entities to engage in otherwise strictly prohibited activities with endangered species in exchange for a promise to contribute money to a conservation organization.  The Court explained that “the plain language” of the ESA, which authorizes the agency to permit such activities where needed to “enhance the survival” of the species does not permit such an approach, and that “the FWS’s broad interpretation appears to thwart the dynamic of environmental protection that Congress plainly intended when it mandated that no export of endangered species be allowed . . . unless the agency permits such export pursuant to certified specified circumstances.”   The Court further stated that “Plaintiffs have ably made the persuasive argument that, far from viewing Section 10(a) as a limit on the circumstances in which the permitting of activities that impact endangered species can occur, FWS now apparently views that provision as a green light to launch a permit-exchanged program wherein the agency brokers deals between, on the one hand, anyone who wishes to access endangered species in a manner prohibited by the ESA and has sufficient funds to finance that desire, and on the other, the agency’s own favored, species-related recipients of funds and other services.”  The Court further emphasized that “[t]his Court considers doubtful FWS’s insistence that, when Congress penned Section 10(a) it intended to authorize the agency to ‘sell’ its permits in this fashion . . .” While we disagree with the Court’s ruling on standing, we hope that the Court’s strong critique of the FWS’s approach will persuade the Service to reconsider the unlawful “pay to play” system.  There is also time for Yerkes to reconsider the fate of the seven chimpanzees, especially since a number of U.S. sanctuaries have made clear that they are willing to accept these animals who have already suffered so much and deserve a far better fate than being shipped overseas to an unaccredited zoo in England.      

A copy of NEAVS’ press release about the case can be found here

BLM Abandons Invasive Wild Horse Sterilization Experiments In Response to First Amendment Lawsuit

In direct response to our lawsuit on behalf of the Cloud Foundation and the American Wild Horse Preservation Campaign, the Bureau of Land Management (BLM) on Friday September 9 withdrew its authorization for invasive experiments on wild horse sterilization in Burns, Oregon.  On behalf of our clients, we had requested that the BLM allow for public observation of these experiments in order to document the agency’s inhumane experimentation on these federally protected animals.  After the BLM denied any opportunity for public observation, we filed suit and moved for a preliminary injunction to protect our clients’ First Amendment right to observe these controversial experiments.  Rather than file any response to our preliminary injunction motion, the BLM abandoned its experiments altogether, making clear that BLM recognizes that the public would likely be appalled by these experimental techniques.  Attached is a press release our clients issued on BLM’s decision.

Brief Filed Challenging Eagle-Killing Wind Project in California

We have filed a brief in federal court in San Diego on behalf of the Protect Our Communities Foundation and several conservationists challenging the Bureau of Indian Affairs’ (“BIA”) approval of a lease to construct and operate a commercial wind project on ridgelines above the McCain Valley in San Diego and Imperial Counties in California.  Because of the location of the proposed project – which contains active golden eagle nests and which serves as a critical migratory route for golden eagles and other bird species – the U.S. Fish and Wildlife Service and the California Department of Fish and Game have roundly criticized the project and urged BIA to move the project to a lower-risk location or at least eliminate the most high-risk turbines to eagles and other birds.  In authorizing project construction and operation, however, BIA refused to adopt the recommendations of the expert wildlife agencies and failed even to conduct any review under the National Environmental Policy Act (“NEPA”) analyzing the exceptionally high risk to eagles and other birds.  Thus, Plaintiffs’ brief – which may be accessed here – requests that the court compel BIA to fully evaluate the impacts of, and alternatives to, this action in a formal NEPA document. 

Lawsuit And Preliminary Injunction Motion Filed To Protect Wild Horse Advocates’ First Amendment Rights

Yesterday, we filed suit—as well as a preliminary injunction request—against the Bureau of Land Management (“BLM”) to protect wild horse advocates’ First Amendment right to observe and document the government’s treatment of federally protected wild horses.  BLM is planning to conduct a series of highly invasive sterilization experiments on 225 wild mares in eastern Oregon, which the agency expects to contribute to its ongoing effort to sterilize many more wild horses on the public range—a plan that our firm has helped wild horse advocates successfully oppose in the past.  In an effort to reveal to the public the reality of the BLM’s inhumane treatment of these mares and to hold BLM publicly accountable for its plans to sterilize wild horses on the range, wild horse advocates requested access to observe and document the agency’s gruesome sterilization experiments.  However, providing only conclusory and unsubstantiated assertions, BLM denied any public access to observe its highly invasive, inhumane sterilization experiments.  Because the public and the press have a right to observe government activities under the First Amendment, BLM’s attempt to conduct these experiments behind closed doors is unconstitutional, and BLM’s denial of these wild horse advocates’ requests to observe these procedures is also arbitrary and capricious for various reasons.  Our clients are The Cloud Foundation, its founder and executive director and Emmy-award-winning wild horse documentarian Ginger Kathrens, the American Wild Horse Preservation Campaign, and Deniz Bolbol, an employee of AWHPC with a long record of documenting BLM’s inhumane treatment of wild horses.  You can access the complaint here and the preliminary injunction here.

Summary Judgment Sought In Case Challenging FWS’s Refusal To Protect Pygmy-Owl Based On Harmful Endangered Species Act Policy

On behalf of the Center for Biological Diversity and Defenders of Wildlife, we have filed our opening summary judgment motion in a case challenging the Fish and Wildlife Service’s (FWS) refusal to list the pygmy-owl as an endangered or threatened species under the Endangered Species Act (ESA).  The pygmy-owl is a tiny owl that has been reduced to 50 or fewer birds in all of the Arizona portion of its range because of rampant urban development, grazing, invasive species, and other threats.  While conceding the owl’s highly imperiled status in the U.S. portion of its range and in adjacent habitat in northern Mexico, the FWS has refused to list the owl – and thus afford it the critically needed protection of the ESA – based on a recent policy change adopted by the Obama Administration, under which species such as the pygmy-owl may receive no protection under the ESA so long as they may be more plentiful in other parts of their range.  Applying that policy, the FWS determined that simply because the pygmy-owl is not in as desperate straits in southern Mexico, it should be allowed to go extinct in Arizona and northern Mexico.  We have challenged that decision, and the underlying policy, as contrary to the overriding conservation purpose of the ESA to safeguard imperiled wildlife in the U.S. even if they be more abundant elsewhere.  Indeed, as our brief points out, under the harmful policy applied to the pygmy-owl, such iconic species on the American landscape as grizzly bears, wolves, eagles, jaguars, and many others would never have received protection under the ESA.  Our case is pending in the U.S. District Court for the District of Arizona.  A copy of our summary judgment motion is here.

Federal Court Requires Further Study For Environmentally Destructive “Purple Line” Project

A federal judge in Washington, D.C. has agreed with our claims – made on behalf of the Friends of the Capital Crescent Trail and two environmental activists – that the proposed “Purple Line” requires further environmental review before it may move forward.  The Purple Line is a massively expensive, environmentally harmful project that, if built, would destroy precious park land and seriously impair the popular Capital Crescent Trail, threaten area wildlife, including rare species found only in the Washington, D.C. vicinity, and degrade the quality of many of the region’s water ways.  Far less environmentally harmful alternatives, such as expanding and improving bus service, would accomplish the project’s purported objectives at a fraction of the cost and impact.  In the case decided yesterday, the U.S. District Court for the District of Columbia ruled that the Federal Transit Administration and its counterparts in the State of Maryland violated the National Environmental Policy Act by failing to prepare a Supplemental Environmental Impact Statement (SEIS) analyzing the need for the project in view of the “recent extraordinary events involving seemingly endless Metrorail breakdowns and safety issues.”  Although the Purple Line is not technically part of the Metrorail system, as proposed, the Purple Line is heavily dependent on Metro riders for its projected ridership, and even the project name is intended to emphasize the interrelationship with the Metro system.  Consequently, the Court concluded that the federal and state agencies’ refusal to prepare an SEIS in view of the “serious issues” plaguing the Metro system, “which may have long-term effects on Metro ridership, only underscores how important it was for defendants to take the requisite hard look at the potential effect of Metro’s safety issues on future Purple Line ridership and any related environmental issues.”  The Court further opined that “WMATA and the FTA’s cavalier attitude toward these recent developments raises troubling concerns about their competence as stewards of nearly a billion dollars in federal taxpayers’ funds” that would be spent on the Purple Line.  The Court therefore vacated the Record of Decision approving the project and required the defendants to prepare an SEIS before it may proceed.

 A copy of the Court’s opinion is ­here, and a press release concerning the ruling is here.