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Roaring Springs Assocs. v. Andrus

Citation: 8 ELR 20696
No. No. 77-330, 471 F. Supp. 522/12 ERC 1557/(D. Or., 08/14/1978)

Granting plaintiff's motion for summary judgment, the court holds that the Secretary of the Interior has an enforceable duty under the Wild Free-Roaming Horses and Burros Act to remove wild horses which have strayed from federal lands onto plaintiff's unfenced property. The court rejects the Secretary's argument that the Act's removal provision does not apply to horses on unfenced, open-range country in that they are not "stray" animals within the definition set forth in the Oregon estray laws, finding no indication in the legislative history that Congress intended to incorporate state law definitions into the Act. The court also rules invalid as inconsistent with the Act the agency regulations which provide for removal of wild horses only from fenced private lands or private lands in fenced-in areas. The court holds that mandamus is a proper remedy to assure the fulfillment of this non-discretionary duty and rules that such relief is not barred by sovereign immunity because the Secretary has sufficient appropriated funds available to remove these horses from plaintiff's land, and the court's order would thus not expend itself on the public treasury.

Counsel for Plaintiff
W. F. Schroeder
Schroeder, Denning & Hutchens
P.O. Box 776, Vale OR 97918
(503) 473-3141

R. M. Turnbow
Eberle, Berlin, Kading, Turnbow & Gillespie
P.O. Box 1368, Boise ID 83701
(208) 344-8535

Counsel for Defendants
Sidney Lezak, U.S. Attorney
P.O. Box 71, Portland OR 97207
(503) 221-2101

Marc Blackman
330 American Bank Bldg., Portland OR 97205
(503) 228-0487