6 ELR 20249 | Environmental Law Reporter | copyright © 1976 | All rights reserved

American Horse Protection Association, Inc. v. Frizzell

No. LV 75-143 RDF (403 F. Supp. 1206) (D. Nev. October 2, 1975)

ELR Digest

The Bureau of Land Management's roundup of 400 wild horses in Stone Cabin Valley, Nevada, does not violate the Wild Free-Roaming Horses and Burros Act and is not a major federal action significantly affecting the environment so as to require an environmental impact statement under NEPA. The predominantly desert Stone Cabin Valley is mostly comprised of an established BLM grazing district. Both cattle and wild horses graze the land, which traditionally has had an overgrazing problem. The valley currently holds 900-1200 horses. To reverse range deterioration, the BLM Director approved removal of 400 horses. Several national groups interested in wild horse protection supported the action.After Nevada state officials terminated initial roundup efforts, a cooperative agreement was reached between federal and state officials regarding jurisdiction over captured horses.

The court has jurisdiction because of the federal questions presented under NEPA, Molokai Homesteaders Cooperative Ass'n v. Morton, 506 F.2d 572, 5 ELR 20024 (9th Cir. 1974) and the Wild Horses Act, 16 U.S.C. § 1331. The $10,000 jurisdictional amount is met under the value-to-defendant or value-of-the-action tests, since federal expenditures for the roundup involve about $50,000. See Senate Select Comm. on Presidential Compaign Activities v. Nixon, 366 F. Supp. 51 (D.D.C. 1973). Jurisdiction is also based on the Administrative Procedure Act, 5 U.S.C. § 702, since plaintiff is sufficiently aggrieved to maintain an action for judicial review. Plaintiff has standing because it has alleged the existence of a member who wishes to continue viewing wild horses in Stone Cabin Valley, Sierra Club v. Morton, 405 U.S. 727, 2 ELR 20192 (1972); United States v. SCRAP, 412 U.S. 669, 3 ELR 20536 (1973), and because this interest comes within the zone of interests protected by both the Wild Horses Act and NEPA. Exhaustion of administrative remedies is not required because the horses will be rounded up, and the controversy moot, by the time an administrative review of the project is completed. Of the four factors which must be considered on a motion for a preliminary injunction, (1) plaintiff's success on the merits, (2) irreparable injury, (3) harm to other parties, and (4) the public interest, Virginia Petroleum Jobbers Ass'n v. FPC, 259 F.2d 921 (1958), plaintiff fails to meet the first standard, and the preliminary injunction must be denied.

The arbitrary and capricious standard of review under 5 U.S.C. § 706(2)(A) applies under the Wild Horses Act. Under NEPA, the 5 U.S.C. § 706(2)(D) standard of observance of procedures required by law must be used. Lathan v. Brinegar, 506 F.2d 677, 4 ELR 20802 (9th Cir. 1974). BLM has discretion to conduct the roundup of wild horses in Stone Cabin Valley, 16 U.S.C. § 1333(b), 43 C.F.R. § 4712.3-2, but that discretion is not so broad that there is no law to apply to this case. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 1 ELR 20110 (1971). The Interior Secretary has a duty to protect wild horses and to conduct the roundup in a humane manner. But the facts indicate that the BLM roundup decision is not an abuse of discretion: protection of wild horses entails elimination of habitat overgrazing through thinning of herds. Use of the water trap method of roundup is the most humane manner possible.

The court finds that the proposed action will not have a significant effect on the environment, but expresses no opinion on whether the action is major, federal, or affects the human environment. The action's primary effect will be a slight improvement in the quality of the range. In light of expert opinion that the range is in poor condition BLM's decision to take remedial action is not arbitrary. Despite regulations allowing range closure to livestock grazing, 43 C.F.R. § 4712.1-4, public lands are to be administered under the multiple use-sustained yield concept. Therefore, the status of wild horses cannot be exalted over other uses of public lands. See 43 C.F.R. § 1725.3-1. BLM has several alternatives available to alleviate overgrazing, including removing wild horses, 16 U.S.C. § 1333(b), or restricting livestock grazing in established grazing districts, Taylor Grazing Act, 43 U.S.C. § 315, ELR 41406. Under these alternatives, BLM's decision to remove some horses is not arbitrary or capricious.

Plaintiff's argument that the cooperative agreement between BLM and state authorities is illegal must fail, since 16 U.S.C. § 1336 expressly contemplates this type of agreement, in order to permit the state to protect its interests in these horses.

The full text of this opinion is available from ELR (15 pp. $2.00, ELR Order No. C-1025).

Counsel for Plaintiff
Robert C. McCandless
Burwell, Hansen & McCandless
700 Federal Bar Building
Washington DC 20006
(202) 293-7010

Counsel for Federal Defendants
John E. Lindskold
Justice Department
Washington DC 20530
(202) 739-2654

James Coda
Department of Interior
Washington DC 20240
(202) 743-4444

Lawrence J. Semenza, U.S. Attorney
William C. Turner
Federal Building
Las Vegas NV 89101
(702) 385-6336

Counsel for State Defendants
Robert List, Attorney General
William E. Isaeff
Supreme Court Building
Carson City NV 89701
(702) 885-4170

Foley, C.J.


6 ELR 20249 | Environmental Law Reporter | copyright © 1976 | All rights reserved