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Mountain States Legal Found. v. Hodel

Citation: 17 ELR 20380
No. No. 82-1485, 799 F.2d 1423/(10th Cir., 08/22/1986) On reh'g en banc

The court holds that failure of the Secretary of the Interior and the Bureau of Land Management (BLM) to control the consumption of forage by wild horses on private lands pursuant to the Wild Free-Roaming Horses and Burros Act (the Act) does not constitute a taking of private property without just compensation under the Fifth Amendment. The court initially reviews the federal trust responsibility for wildlife, including the wild horses and burros protected by the Act, and the numerous wildlife laws enacted that provide for wide-ranging control over activities affecting these species. The court compares the Act to a land use regulation that guarantees the survival of particular species of wildlife. Moreover, the many courts that have considered the issue have generally barred compensation for damage by various protected wildlife. Although a land use regulation may effect a taking if it does not substantially advance legitimate state interests or denies an owner economically viable use of the land, the court holds that neither possibility applies to the case in question. The Act advances the important government interest in preserving the lives and habitats of wild horses and burros. In addition, the Act did not deprive landowners of economically viable uses of their land as a whole, but only diminished the value of their property. The court rejects plaintiffs' argument that the consumption of forage by the wild horses, standing alone, requires just compensation. The Act does not interfere with plaintiffs' investment-backed expectations of using their land to graze cattle. Although the foraging has decreased the value of plaintiffs' property, the reduction is comparable to other cases in which no taking has been found.

A dissent would remand the case for further consideration of whether BLM's continued failure to control the horses caused the landowners' loss of forage. Another dissent would remand for reconsideration of BLM's duty to manage wild horses solely on public lands.

[Related opinions are published at 12 ELR 20105 and 14 ELR 20687.]

Counsel for Plaintiffs-Appellants
Constance E. Brooks
Mountain States Legal Foundation
1200 Lincoln St., Suite 600, Denver CO 80203
(303) 861-0244

Counsel for Defendants-Appellees
Donald A. Carr
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 724-7352

Before HOLLOWAY, Chief Judge, and SETH, BARRETT, McKAY, LOGAN, SEYMOUR and MOORE, Circuit Judges.