Mountain States Legal Found. v. Clark
Citation: 14 ELR 20687
No. No. 82-1485, 740 F.2d 792/21 ERC 1759/(10th Cir., 07/23/1984) Later decision aff'd in part, rev'd in part
The court rules that the consumption of forage on private property resulting from improper management of wild horses by the Bureau of Land Management (BLM) under the Wild Free-Roaming Horses and Burros Act may be a Fifth Amendment taking of that forage. The court holds that the Act creates a legal framework for wild horses not comparable to laws governing management of other wild animals. The court notes that the horses, roaming freely over a part of Wyoming checkerboarded with private and public lands, are by law under the exclusive control of BLM. The private landowners may not, subject to criminal penalties, remove the horses from their land; the statute imposes an affirmative duty on BLM to manage the horses and to remove the horses from private land when requested to do so. BLM has allegedly failed to control horse populations on plaintiffs' lands, and admits to allowing overpopulation on public lands and to failing to remove horses from plaintiffs' lands in response to their requests. Personal property such as forage, the court concludes, is within the protection of the Fifth Amendment Taking Clause. Any taking would result from a continued course of action for a period of years. The court remands for a factual determination whether the forage was taken by the continued failure to manage the horses and to keep their numbers in check, but affirms the denial of damages against the Secretary of the Interior.
Judge McKay, dissenting in part, sees wild horses under the Act as indistinguishable from other wild animals managed by the government and concludes that the loss of forage is incidental to a valid act of regulation.
Counsel for Plaintiffs
Constance E. Brooks
Mountain States Legal Foundation
1200 Lincoln St., Suite 600, Denver CO 80203
Counsel for Defendants
Diane H. Kelly
Land and Natural Resources Division
Department of Justice, Washington DC 20530
Seth J. before Holloway and McKay, JJ.