The Wild Ones: Fighting for the Lives, Their Lands and Their Water

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The Wild Free-Roaming Horse & Burro Act
Environmental Law
Published September 22, 2005
Note: Excellent Summary on Applicable Laws and Legal Challenges throughout the history of the WH&B
Program.
Full Article
I. INTRODUCTION
II. OVERVIEW III. REMOVALS AND APPROPRIATE MANAGEMENT LEVELS A. Administrative Challenges to
Removals B. Judicial Review of Removal Authority C. Thriving Ecological Balance IV. OWNERSHIP CLAIMS,
STRAYING HORSES, AND CONSTITUTIONAL TAKINGS The…
… A. Ownership Determinations B. Statutory Duty to Remove Stray Horses C. The Fifth Amendment’s Takings Clause
V. ADOPTION A Applications and PMCAs B. Transfer of Title VI. CRIMINAL PROSECUTIONS A. Vagueness and
Overbreadth B. Wild Horses and Property interests Under Criminal Statutes VII. CONCLUSION
I. INTRODUCTION
In the United States, wild free-roaming homes and burros on public lands are deemed “living symbols of the historic
pioneer spirit of the West and as such are considered a national aesthetic resource.” (1) At one time numbering in the
millions, by the 1960s, the horse population had declined to seventeen thousand. (2) In 1971, concerned with this
decline and recognizing the need for their protection, Congress enacted the Wild and Free-Roaming Homes and
Burros Act (WFRHBA or Act). (3)
Under the WFRHBA and its implementing regulations, the Departments of the Interior and Agriculture manage and
protect wild and free-roaming homes and burros on public lands. (4) Over the course of the past thirty years, the Act
has been the subject of litigation with respect to both the management of these animals and their protection. (5) This
article is intended to provide a general overview of the developing judicial and administrative case law in these areas.
Since the overwhelming majority of wild homes and burros live on lands managed by the Department of the Interior, (6)
the discussion about developing administrative law focuses solely on rulings by the Department of the Interior’s Board
of Land Appeals (IBLA or Board), which has jurisdiction over appeals challenging management and compliance
determinations under the Act. (7)
The article is divided into five parts. First, by way of background, the article provides an overview of the Act. The article
proceeds with an analysis of the cases involving decisions to remove wild homes and burros from public lands,
including the question of the appropriate management levels for these animals. It then discusses the government’s
responsibilities with respect to straying horses and the question of whether the management of these homes may
effect a taking of private property under the Fifth Amendment. It continues by considering cases discussing adoption of
wild homes. Finally, the article analyzes the case law on the Act’s criminal provisions.
II. OVERVIEW
In 1971, under legislative authority granted to it under the Property Clause, (8) Congress passed the WFRHBA to
protect wild free-roaming homes and burros on public lands from “capture, branding, harassment, or death.” (9) As
amended, (10) the Act brings “[a]ll wild free-roaming homes and burros” under the jurisdiction of the Department of the
Interior, through the Bureau of Land Management (BLM), and the Department of Agriculture, through the Forest
Service (FS), (11) “for the purpose of management and protection.” (12)
Under the WFRHBA, the Secretary (13) is authorized and directed to protect wild free-roaming horses and burros “as
components of the public lands.” (14) In doing so, the Secretary may “designate and maintain specific ranges on public
lands as sanctuaries for their protection and preservation” (15) after consultation with state wildlife agencies and
advisory boards established under the Act. (16) Through the land use planning process, BLM in herd management
areas, (17) and FS in territories, (18) manage wild horses and burros “in a manner that is designed to achieve and
maintain a thriving natural ecological balance on the public lands.” (19) All management activities are to be conducted
“at the minimal feasible level” and in consultation with state wildlife agencies. (20)
A person who claims ownership of a burro or horse on “public lands shall be entitled to recover it only if recovery is
permissible under the branding and estray laws of the state in which the animal is found.” (21) If a wild burro or horse
strays from public lands onto privately owned land, the owner of such land may inform an agent of the Secretary or a
U.S. Marshall “who shall arrange to have the animals removed.” (22) The Secretary also must maintain current
inventories of wild and free-roaming homes and burros on public lands to determine whether an overpopulation exists
and to assist him in arriving at “appropriate management levels.” (23) In addition to this inventory, the Secretary may
consider various sources to determine whether an overpopulation exists in a given area, including the current inventory
of federal public lands, land-use plans, and court-ordered environmental impact statements. (24)
If the Secretary concludes that an overpopulation exists and that “action is necessary to remove excess animals, he
shall immediately remove excess animals (25) from the range so as to achieve appropriate management levels.” (26)
With respect to wild homes and burros that are removed, the Secretary is authorized to destroy “old, sick, or lame”
animals in the most humane manner possible. (27) He may then attempt to place healthy excess animals under
“private maintenance and care.” (28) To the extent that healthy animals have been removed are not in demand for
adoption, they are also subject to destruction in the most “humane and cost efficient manner possible.” (29)
Private maintenance is accomplished through an adoption program, which contemplates adopters who are both
“qualified individuals,” and also persons who “can assure humane treatment and care (including proper transportation,
feeding, and handling)” of these animals. (30) Generally, no more than four animals may be adopted per year. (31)
Upon application, an adopter will receive title to a wild horse or burro one year after the transfer if the Secretary
determines that certain conditions have been met. (32) If animals removed from the range are not adopted, they are
then placed in government long-term holding facilities. (33) Under a 2004 amendment to the Act, excess animals over
ten years old or those that have been unsuccessfully offered for adoption at least three times, may be sold “without
limitation.” (34)
Finally, the Act contains criminal penalty provisions. (35) Specifically, criminal penalties may be imposed under the
WFRHBA for: 1) willfully removing or attempting to remove wild free-roaming horses or burros from public lands; 2)
converting them to private use; 3) maliciously harassing such animals, or causing their death; 4) processing, or
permitting to be processed, the remains of these animals into commercial products except as provided for in the case
of animals which may be sold; 5) selling, directly or indirectly, any such animal that is maintained in private or leased
land; or, 6) willfully violating any regulation promulgated under the Act. (36) The maximum penalty under the Act or its
implementing regulations is a $2,000 fine and one year imprisonment. (37) Under the Criminal Fine Improvements Act
of 1987, (38) however, the maximum amount of a fine for a misdemeanor offense was increased to $100,000 and
$200,000 for an individual and a corporation, respectively. (39)
III. REMOVALS AND APPROPRIATE MANAGEMENT LEVELS
The management of wild horses under the Act has resulted in the litigation of a number of issues. For example, what is
the scope of administrative and judicial review of actions concerning removal of wild horses and burros from public
lands? Can removals take place prior to the preparation of an environmental impact statement under the National
Environmental Policy Act? (40) Is the appropriate management level for a herd of wild horses in a given area of public
lands that level that existed at the time of the passage of the Act? The cases addressing these questions are discussed
below.
A. Administrative Challenges to Removals
Wild horse and burro management aims to “maintain a thriving natural ecological balance among wild horse
populations, wildlife, livestock, and vegetation and to protect the range from the deterioration associated with
overpopulation.” (41) This management takes place within herd management areas, or the broader “herd areas,” which
the regulations define as the “geographic area identified as having been used by a herd as its habitat in 1971.” (42)
The applicable test, in terms of the level of horse populations, “is whether such levels will achieve and maintain a
thriving ecological balance on the public lands.” (43)
Removal determinations “must be based on research and analysis, and on monitoring programs that include studies of
grazing utilization, trends in range condition, actual use, and climatic factors,” (44) Removal is warranted where “the
record establishes current resource damage or a significant threat of resource damage.” (45) When removal is based
on monitoring data, the party challenging the action “bears the burden of demonstrating, by a preponderance of the
evidence, that BLM committed an error in ascertaining, collecting, or interpreting the data upon which it relie[d] in its
decision.” (46)
Under Department of the Interior regulations, a removal decision by an authorized BLM officer is “effective upon
issuance or on a date established in the decision.” (47) On numerous occasions, the Board has confronted
administrative challenges to BLM removal determinations and, applying the legal principles set forth above, affirmed
those determinations. (48)
B. Judicial Review of Removal Authority
Not long after passage of the Act, the scope of the Secretary’s authority to remove wild horses was challenged in court.
In American Horse Protection Ass’n, Inc. v. Frizzell, (49) to alleviate an overgrazing problem in the Stone Cabin Valley,
an area comprising approximately 600 square miles located in central Nevada, state and federal officials agreed on a
plan to remove approximately 400 wild horses. (50) Plaintiff, a nonprofit corporation dedicated to the protection of wild
homes, sought declaratory and injunctive relief alleging in part that the round up was illegal because it violated the Act;
the decision reached was arbitrary and capricious; and, contrary to the requirements of NEPA, no environmental
impact statement had been prepared. (51) The court denied the request for declaratory and injunctive relief. (52)
Applying the Act and the regulations as they existed at the time, the court ruled that BLM’s decision to remove less
than one half of the homes in the Valley to relieve grazing pressures, and to do so using the water trap method, (53)
was not arbitrary or capricious. (54) The court found that Stone Valley was endangered by overgrazing, that the
Secretary had wide discretion in protecting and managing wild homes, and that the capture of the horses using the
water trap method was humane. (55)
With respect to plaintiffs claim under NEPA, the court held that since the round-up of the homes from Stone Valley
would not have a significant effect on the environment, an environmental impact statement was not required. (56) The
court also noted, however, that the roundup was deemed “an interim measure to preserve the Valley pending a
complete study and development of a long-range solution designed to preserve the environment and reconcile the
competing interests involved.” (57)
Several years later, in American Horse Protection Ass’n, Inc. v. Andrus, (58) the United States Court of Appeals for the
Ninth Circuit held that while an interim action involving the removal of homes, such as was at issue in Frizzell, may not
be sufficiently significant to trigger the preparation of an environmental impact statement, “it would not follow that the
ultimate decision to remove horses in order to maintain the horse population at a permanent level would be equally
insignificant.” (59) In Andrus, the proposed action involved the annual removal of approximately 3,500 to 7,000 wild
horses from federal public lands in Nevada. (60) The court of appeals held that the district court had to decide whether
the proposed roundups and removals constituted a major federal action significantly affecting the environment. (61)
The environmental impact, the court pointed out, encompassed the rangeland and the horses. (62)
The final significant reported case touching on the Secretary’s removal authority is American Horse Protection Ass’n,
Inv. v. Watt. (63) In that case, the district court had denied a request by BLM to dissolve an injunction entered in 1976
prohibiting BLM from removing horses from certain public lands in Idaho without the court’s approval. (64) In 1981,
BLM had proposed to cull the herd, which by then numbered 400 horses, by 200, but the court denied BLM permission
to do so finding that the Bureau had failed to abide by the 1976 order instructing it to give consideration to the
possibility of protecting the range by limiting cattle grazing. (65)
In remanding the case to the district court, the United States Court of Appeals for the District of Columbia Circuit noted
that the principal thrust of the 1978 amendments had been “to cut back on the protection the Act afford[ed] wild horses,
and to reemphasize other uses of the natural resources wild horses consume.” (66) Particularly relevant was the
authority granted to the Secretary under [section] 1333(b)(2) to “immediately remove excess animals” in the case of an
overpopulation. (67) The court concluded that to delay the proposed action pending further study of the alternative
limiting cattle grazing was inconsistent with the “mandate to the Secretary ‘immediately’ to remove excess horses once
an overpopulation is determined to exist.” (68) Upon remand, however, the proposed reduction plan was still subject to
review under the arbitrary and capricious standard, taking into account the goals of the Act as revised and the
information available to the Secretary. (69)
C. Thriving Ecological Balance
What is the appropriate management level for a herd of wild horses in a given area of public lands? (70) In Dahl E
Clark, (71) holders of grazing permits on federal lands sought a writ of mandamus against officials at the Department of
the Interior and BLM ordering them to reduce the size of wild horse herds that occupied lands on which they held
grazing rights to 1971 levels. (72) In rejecting the relief requested, the district court found that both the statute and the
regulations addressed the need to maintain wild horse population levels in terms of achieving an ecological balance
and not “in terms of the numbers extant at any particular point in time.” (73) The court stressed that the relevant inquiry
is whether the “levels will achieve and maintain a thriving, ecological balance on the public lands.” (74) The court also
noted that the Act’s legislative history supported the conclusion that Congress had not intended to maintain wild horses
and burros at 1971 levels. (75)
Following Dahl, the Board has set aside BLM decisions that proposed removals based on horse population numbers
established under planning documents “for administrative convenience, rather than based on a determination of the
optimum number of wild horses which would maintain the range in a thriving natural ecological balance and avoid a
deterioration of the range.” (76) Contrariwise, the Board has affirmed BLM decisions predicated on analysis of current
data that demonstrate removal is necessary to restore a natural ecological balance and prevent deterioration of the
range. (77)
IV. OWNERSHIP CLAIMS, STRAYING HORSES, AND CONSTITUTIONAL TAKINGS
As noted above, under [section] 1335, a person claiming ownership of a wild burro or horse on public lands will be
entitled to recovery of the animal consistent with the stray and branding laws of the state where the animal is found.
(78) Conversely, if wild horses or burros stray onto private land, the land owner “may inform the nearest Federal
marshal or agent of the Secretary, who shall arrange to have the animals removed.” (79) These and related provisions
of the Act have resulted in litigation over the following important issues: 1) whether the determination of ownership
under a state’s stray and branding laws is to be made by a federal or state official; 2) whether BLM has a statutory duty
to prevent wild horses from straying onto private land; and 3) whether damage to private property caused by wild
horses may subject the government to liability under the takings clause of the Fifth Amendment. The cases addressing
each of these issues are discussed below.
A. Ownership Determinations
In American Horse Protection Ass’n v. United States Department of Interior, (80) an association and a member of the
joint advisory board established under the Act brought suit against the Departments of the Interior and Agriculture
alleging violations of the Act and other statutes in connection with a roundup of horses on federal lands. (81) After the
suit was filed, claims to the gathered horses were submitted to BLM by private individuals asserting ownership, and by
members of Congress, asserting that the horses were wild. (82) The district court ruled that a state inspector had the
authority under the Act to determine the ownership question, and the association and the members of the joint advisory
board appealed. (83)
The United States Court of Appeals for the District of Columbia Circuit reversed. (84) The court reasoned that since the
language of [section] 1335 did not “define the proper roles of state and federal officials,” (85) it was necessary to
examine the Act’s legislative history. (86) Based on that history, and administrative interpretations of the Act by the
Secretaries of the Interior and Agriculture, the court ruled that the “final role” in the ownership determination under
[section] 1335 was reserved to the federal government. (87)
B. The Statutory Duty to Remove Stray Horses
In Fallini v. Hodel, (88) private landowners, who maintained a ranching operation in Nevada adjacent to public lands,
sought and obtained a writ of mandamus requiring BLM to remove stray and wild horses from their land. (89) In
addition, the district court directed BLM to take all necessary action to prevent wild homes from straying onto the
private lands. (90) On appeal, BLM challenged only the latter portion of the district court’s ruling. (91)
The United States Court of Appeals for the Ninth Circuit held that mandamus was not available as a remedy to compel
BLM to take all necessary steps to prevent wild homes from straying onto private lands. (92) The court reasoned that
while BLM had a ministerial duty under [section] 1334 to remove homes from private land upon notification by an
owner, it did “not require the BLM to prevent straying in the first instance.” (93) The court further noted that in addition
to the language of the Act, its legislative history did not support the finding of an implied duty to prevent straying, (94)
and that the remedy authorized under [section] 1334-the removal of wild homes and burros from privately owned land
upon notification–provided an adequate recourse, thereby rendering mandamus relief inappropriate. (95)
C. The Fifth Amendment’s Takings Clause
The Takings Clause of the Fifth Amendment provides that private property shall not “be taken for public use, without
just compensation.” (96) Two types of takings are protected by this clause: physical takings and regulatory takings. (97)
In Mountain States Legal Foundation v. Hodel, (98) the United States Court of Appeals for the Tenth Circuit, sitting en
banc, considered whether the Secretary of the Interior’s failure to manage wild horses in accordance with the
mandates of the Act gave rise to a takings claim under the Fifth Amendment. (99) The plaintiffs in that case, two
groups that represented private land owners in southwestern Wyoming, alleged that the Secretary’s management of
wild horse herds in that area had resulted in the unconstitutional taking of forage on their private lands, thereby
damaging their lands. (100)
The Tenth Circuit preliminarily noted that the horses involved were wild animals, no different than the grizzly bears that
roamed in our national forests and parks, and that, as such, they were “not the private property of those whose land
they occup[ied], but [we]re instead a sort of common property whose control and regulation [we]re to be exercised as a
‘trust for the benefit of the people.” (101) The court rejected plaintiffs’ argument that these horses were
“instrumentalities of the federal government whose presence constitute[d] a permanent governmental occupation” of
their property and found the Act to be “nothing more than a land-use regulation enacted by Congress to ensure the
survival of a particular species of wildlife.” (102) The Tenth Circuit also noted that a clear majority of the courts that had
considered the issue had ruled that damage to private property perpetrated by protected wildlife did not constitute a
taking. (103) Furthermore, the rule of these cases was in line with Supreme Court precedent sustaining the validity of
land-use regulations which promoted the public interest. (104)
V. ADOPTION
The Act provides that wild horses removed from public lands because of overpopulation are eligible for adoption by
private parties if the Secretary determines that the potential adopters are “qualified individuals” and that they “can
assure humane treatment and care” for the animals. (105) Unless the Secretary determines otherwise, a person may
not adopt more than four animals per year. (106) If the adopter provides humane treatment and care for one year, the
Secretary, upon application, is authorized to grant him title to the animal(s). (107)
Under BLM’s Adopt-a-Horse-or-Burro Program, a person seeking to adopt a wild horse or burro must be eighteen
years or older; have no prior conviction under the Act or its implementing regulations; have no prior conviction involving
the inhumane treatment of animals; have adequate water, feed, and facilities to furnish humane care to the animals
sought to be adopted; (108) and, unless previously authorized, not have obtained more than four wild burros or horses
within the preceding year. (109) The application may be submitted online through BLM’s web site or by mail. (110)
While the base adoption fee for each wild horse or burro is $125, BLM generally uses competitive bidding to establish
adoption fees. (111) The average adoption fee today is about $135 for burros, $160 for mules, and $185 for horses.
(112)
If the application meets the requirements, the applicant then must execute a Private Maintenance and Care Agreement
(PMCA) under which he agrees to abide by a number of conditions and restrictions affecting, interalia, the title, transfer,
physical inspection, notice of death or escape, and care and treatment of the animal(s). (113) Compliance with the
terms of the PMCA is subject to verification through visits and inspections by BLM’s authorized officer. (114) If within
six months from execution of the PMCA, the animal dies or has to be destroyed because of a condition existing at the
time of placement and the adopter provides a statement by a veterinarian certifying that reasonable care and treatment
would not have corrected the condition, then BLM will replace the animal. (115)
An adopter wishing to terminate his responsibility under the PMCA must submit a written relinquishment of the PMCA
and the authorized officer must take possession of the animal or transfer it to another qualified applicant within thirty
days of the receipt of the request. (116) Title to wild burros and homes remains with the government for at least one
year after the PMCA is executed and until the authorized officer issues a Certificate of Title. (117) Since 1973, BLM
has placed 203,000 animals in homes. (118)
The adoption process under the Act has generated litigation in two general areas. The first surrounds the denial of
applications and the cancellation of PMCAs. The second concerns the transfer of title to a wild horse or burro after the
one-year probationary period has run to a person who has expressed an interest in exploiting these animals for
commercial purposes. The administrative and judicial rulings addressing these issues are discussed below.
A. Applications and PMCAs
An individual whose application for adoption has been denied, and who seeks to overturn that determination at the
administrative level, bears the burden of establishing that the decision does not comply with the regulations or statutes,
or finds no support on any rational basis. (119) The few reported IBLA opinions (120) regarding denials of applications
have affirmed BLM decisions which found that the putative adopter did not possess adequate facilities for the care and
maintenance of the animal, (121) engaged in past conduct involving the sale of horses for slaughter, (122) or neglected
the animal resulting in inhumane treatment. (123) Additionally, the Board has held that a conviction for violating the Act,
or the regulations promulgated under it, may not be necessary to affirm the denial of an application where the
“applicant’s responsibility for a violation of the Act or applicable regulations are not in dispute.” (124)
Disputes concerning PMCAs have resulted in several judicial opinions. In Haberman v. United States, (125) the Claims
Court dismissed, for lack of jurisdiction, an action for money damages brought by a partnership comprised of 150
individuals who had entered into PMCAs, and whose horses were repossessed when BLM learned that the partnership
intended to sell the horses for slaughter once it obtained title to them. (126) The partnership subsequently certified its
claim with BLM and filed a new suit alleging that BLM had breached an express or implied contract by its actions, and
that it was entitled to compensation. (127) While the court denied the government’s motion to dismiss the case on
procedural grounds, it cautioned the partnership that it was going to have to overcome the suggestion presented by the
record that the partnership may have breached the PMCA by seeking to adopt horses with the intent to later use them
for commercial purposes. (128)
In M.E. Eddleman v. United States, (129) plaintiffs brought an action against the United States under the Federal Tort
Claims Act (FTCA), (130) alleging that the government’s failure to transfer title to a number of horses that the plaintiffs
had taken care of, or to compensate them for such care, rendered it liable. (131) Observing that the plaintiffs’ claims
sounded in contract and not in tort, the court concluded that under the Tucker Act, (132) exclusive jurisdiction lay with
the Court of Claims and dismissed the action. (133)
Administratively, challenges to the cancellation of PMCAs have, since 1981, produced over twenty-five rulings by the
IBLA. (134) The procedure governing appeals from cancellations of PMCAs is well-established. An adopter must
comply with the terms and conditions of the PMCA and the regulations. (136) Failure to comply with the terms of the
PMCA may lead to the cancellation of the agreement and repossession of the animal(s) sought to be adopted. (136) If
the adopter is not in compliance, BLM may, but is not obligated, to provide him with notice and an opportunity to take
corrective action. (137) In determining whether to cancel a PMCA, BLM “may rely upon an observed ‘deteriorating
condition of the animals themselves and … the credible reports of third parties.”‘ (138) The burden is on the adopter to
prove that the administrative action was improper. (l39)
Consistently, the Board has upheld BLM determinations canceling PMCAs and repossessing wild horses and burros
when adopters have sold or attempted to sell the animals prior to receiving title, (140) failed to notify BLM of the death
or escape of an animal within seven days of discovery,m transferred horses to a location other than identified in the
agreement for more than thirty days without prior approval, (142) failed to make the animals available for physical
inspection following a demand by BLM, (143) or failed to provide humane treatment by not meeting the physical and
medical needs of the animals, often by not supplying feed, water, and adequate facilities. (144)
When there is no indication that the animal is in jeopardy, the Board has deemed that violation of the requirement that
the adopter notify BLM of a change of address within 30 days of such change is a technical violation not justifying
cancellation of the PMCA. (145) The duty of care under the PMCA is not abated simply because the adopter has
become ill, (146) or because he entrusts the care of the animal(s) to a third party. (147) Further, the Board has held
that violation of the agreement, with respect to some of the animals obtained, can properly lead to the cancellation of
the PMCA and repossession of the remaining animals. (148)
B. Transfer of Title
In Animal Protection Institute of America v. Hodel, (149) two associations sought injunctive relief against the Secretary
of the Interior and subordinate officials regarding the transfer of title to putative adopters when, prior to the transfer, the
officials were informed that the adopters intended to use the animals for commercial purposes. (150) The district court
granted the relief and the Secretary appealed. (151)
In affirming the ruling of the district court, the United States Court of Appeals for the Ninth Circuit noted that the
adoption determination under [section] 1333(b)(2)(B) of the Act initially required the Secretary to make two findings:
first, that the adopter was a “qualified individual[],” and second, that he “c[ould] assure humane treatment and care.”
(152) Then, for title to pass to the adopter, [section] 1333(c) required that the otherwise “qualified individual” had, for
one year, “provided humane conditions, treatment and care” to the animal(s) entrusted to him. (153) The court
reasoned that given the reference to “qualified individual” in [section] 1333(c), the Act’s explicit prohibitions on the
commercial exploitation of horses, (154) and the mandate that they be treated humanely, (155) “it would be
unreasonable to maintain that Congress intended a qualified individual to include a person who ha[d] expressed an
intent to commercially exploit these” animals. (156)
VI. CRIMINAL PROSECUTIONS
Since its enactment over thirty years ago, there have been a handful of cases addressing challenges to criminal
prosecutions under the WFRHBA. Those cases, which have touched upon the constitutionality of the Act (157) and the
nature of the government’s property interest in wild horses and burros, are discussed below. (158)
A. Vagueness and Overbreadth
A criminal statute must define the “offense with sufficient definiteness [such] that ordinary people can understand what
conduct is being prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” (159)
When First Amendment freedoms are not at issue, a vagueness challenge “must be examined in light of the facts of
the case at hand.” (160) This means that one “who engages in some conduct that is clearly proscribed cannot
complain of the vagueness of the law as applied to the conduct of others.” (161) The doctrine of overbreadth, while
related, is distinct from the vagueness doctrine. (162) A law will be considered overbroad if “it prohibits not only acts
the legislature may forbid, but also constitutionally protected conduct.” (161)
In United States v. Johnson, (164) following a bench trial on stipulated facts, the defendant was convicted of removing
a free-roaming horse from public lands in violation of [section] 1338(a)(1). (165) On appeal, he argued that the Act was
unconstitutionally vague, that it encouraged arbitrary enforcement, and that it was overbroad. (166) The court of
appeals rejected all three arguments. (167)
First, insofar as the vagueness challenge was concerned, the defendant maintained that the Act’s definition of wild and
free-roaming horses as “unbranded and unclaimed” animals reasonably could be interpreted to mean that if one
captured a horse, it was no longer “unclaimed” and thus could be removed from public lands. (168) The court found
this argument unpersuasive, concluding that the stipulated facts established beyond a reasonable doubt that the
defendant “knew that the horse was wild and unclaimed, and that his actions were contrary to the Act.” (169) As to the
contention that the Act encouraged arbitrary enforcement because those in charge of investigating possible criminal
violations relied on “the appearance of a horse,” and not “‘the statutory definition,’” the court held that consideration of
this factor was entirely appropriate. (170) Lastly, the court held that the Act was not overbroad, and that through its
criminal provisions Congress intended to prohibit the “precise conduct” for which the defendant was convicted. (171)
B. Wild Horses and Property Interests Under Criminal Statutes
On two occasions, in the context of prosecutions involving charges under Title 18 of the United States Code, courts
have discussed the nature of the government’s interest in wild horses on public lands. In United States v. Hughes,
(172) the defendant was convicted of knowingly converting government property under 18 U.S.C. [section] 641, (173)
and of maliciously causing the death of horses and permitting their remains to be processed into commercial products
under 16 U.S.C. [subsections] 1338(a)(3)-(4). (174) The defendant had obtained these horses under the adoption
program managed by BLM and sold them to a slaughterhouse. (175)
On appeal, the defendant raised several arguments. First, he contended that his conviction for converting the horses to
private use under [section] 641 could not stand because the horses were not the property of the United States. (176)
Alternatively, the defendant maintained that even if the United States had a property interest in the horses he had
adopted and later sold, he should have been prosecuted only under the more specific conversion prohibition found in
the Act and not the general conversion provision under Title 18.177 The defendant also argued that the district court’s
instruction on the element of malice necessary to sustain a conviction under [section] 1338(a)(3) was erroneous, and
that the evidence was insufficient to sustain his conviction for this offense, as well as the offense of permitting horses
and their remains to be processed into commercial products. (178) The court of appeals rejected all of the defendant’s
contentions.
Initially, the court observed that it did not need to reach the question of whether Congress had intended to assert a
property interest with respect to all wild horses on public lands or whether a person could be prosecuted under
[section] 641 for converting such horses. (179) Rather, the narrower question that the court confronted was whether
the government had acquired a property interest in the homes it had captured and loaned to the defendant under the
adoption program. (180) As to those homes, the court found the government had a property interest. (181) The court
ruled that the control the government exercised over the wild homes it made available under the adoption program
gave it a sufficient federal interest to satisfy the elements of [section] 641. (182) The court found additional support for
this ruling from the traditional common law rule that one who removed an animal from its natural environment and
placed it in captivity became its owner. (183) Further, the court determined that its ruling was consistent with the
purpose of the Act and its implementing regulations regarding the adoption of homes and burros. (184)
Having determined that the government had a property interest in the homes made available to the defendant for
adoption, the court next ruled that the elements of 18 U.S.C. [section] 641 and 16 U.S.C. [section] 1338 were
sufficiently distinct for the defendant to be prosecuted under either offense. (185) The court found that although
[section] 641 required the government to show a property loss, [section] 1338 did not. (186) Additionally, under
[section] 641, the government had to establish that a defendant knowingly converted government property, but
[section] 1338 contained no such requirement. (187) Lastly, the court noted that while the legislative history of the Act
revealed that Congress elected to include a penal provision in the Act instead of in Title 18 to reinforce the
government’s ability to protect wild homes, this “d[id] not imply an intent to limit the application of section 641.” (188)
On the propriety of the instruction with respect to the element of malice required for a conviction under 16 U.S.C.
[section] 1338(a)(3), the court rejected the contention that the criminal prohibition contemplated only inhumane
methods of killing wild horses. (189) The court further held that there was evidence to support the finding that the
horses the defendant obtained were wild and free-roaming, that the defendant had acted deliberately and wrongfully in
selling the homes for slaughter, and that he had caused the death of the animals. (190)
The second case addressing the nature of the government’s interest in wild horses on public lands in the context of a
criminal prosecution is United States v. Tomlinson. (191) In Tomlinson, the defendants were charged with removing
wild and free-roaming homes from public lands, and with transportation of stolen property under 18 U.S.C. [section]
2314.192 According to the indictment, the defendants captured wild and free-roaming homes on federal public lands in
Wyoming and secretly removed them from those lands without any notice to, or consent from, the Secretary of the
Interior. (193) The defendants then transported these homes to Colorado and then New Mexico, where they sold them
to a slaughterhouse. (194)
In a motion to dismiss the indictment, the defendants argued that criminal violations of the WFRHBA should be
prosecuted only under 16 U.S.C. [section] 1338. (195) Further, they maintained that the homes were not the property
of anyone at the time they were captured and removed from federal public lands; therefore, they could not be “stolen,”
much less constitute “stolen property,” under 18 U.S.C. [section] 2314. (196) The court rejected the defendants’
contentions and denied the motion.
The court initially found that although there was some overlap in the prohibited conduct, the offenses identified in 16
U.S.C. [section] 1338 and 18 U.S.C. [section] 2314 represented two distinct charges and the defendants properly could
be prosecuted under either charge. (197) Further, neither the legislative history of the Act, nor the Act itself, indicated
that Congress intended to displace the application of [section] 2314 to criminal violations of the Act. (198)
On the question of whether wild and free-roaming horses captured and removed from federal public lands could
constitute stolen property under [section] 2314 ff transported across state lines, the court held that Congress, through
the WFRHBA, had asserted a sufficient interest over these animals such that the conduct allegedly engaged in by the
defendants triggered a violation of [section] 2314. (199) The court found that whether the government’s interest was
described as “regulatory” or “proprietary,” it was difficult “to conceive any way in which the Congress could have
chosen to exercise a greater dominion and control over such animals without reducing them to actual possession, an
alternative Congress expressly rejected as contrary to its intent.” (200) The court further determined that given the
broad remedial purposes behind [section] 2314, congressional intent would be severely undermined ff horses which
had been removed from federal lands in circumstances such as those alleged in the indictment were not deemed to be
“stolen” property. (201)
VII. CONCLUSION
Approximately 32,290 wild horses and 4,845 burros inhabit public lands in the West. (202) Their presence on these
lands continues to be a source of debate. Western ranchers complain that wild horses and burros are a nuisance that
compete with cattle for water and forage. (203) Horse advocates, on the other hand, want to protect and expand these
herds. (204) BLM plans to reduce the burro and horse population to about 28,000 by the year 2007. (205)
The most recent skirmish in the ongoing debate surfaced in December 2004 when the Act was amended to allow
animals who are over ten years old, or who have been unsuccessfully offered for adoption at least three times, to be
sold “without limitation.” (206) Wild horse advocates fiercely criticized the amendment arguing that it will lead to the
slaughter of thousands of horses. (207) Proponents of the measure, however, counter that the affected animals may be
bought by anyone, including citizens and organizations who would like to provide them with a suitable home. (208)
Notably, in the first sale following the enactment of the amendment, BLM sold 200 horses from Nevada to a group that
pledged to provide humane treatment to the animals. (209) The agency is soliciting buyers for its aging and
unadoptable animals, (210) and has approached animal rights organizations and Indian tribes. (211)
As demonstrated by the discussion above, the developing judicial and administrative case law has addressed some of
the issues that have arisen regarding the operation and interpretation of the Act and its accompanying regulations. In
responding to administrative and judicial challenges to follow, care must be taken to ensure that wild horse and burros
remain “living symbols of the historic and pioneer spirit of the West” and continue to “contribute to the diversity of life
forms within the Nation and enrich the lives of the American people.” (212) This goal, however, must be accomplished
within the confines of the congressional mandate that wild horses and burros must be managed “in a manner that is
designed to achieve and maintain a thriving and ecological balance on the public lands.” (213)
(1) S. Rep. No. 92-242, at 1 (1971), as reprinted in 1971 U.S.C.C.A.N. 2149, 2149.
(2) See Kristin H. Glover, Managing Wild Horses on Public Lands: Congressional Action and Agency Response, 79
N.C.L. REV. 1108, 1108 (2001) (“Once numbering two to five million, the United States wild horse population declined
to seventeen thousand by the 1960s.”). See generally Kenneth P. Pitt, The Wild Free-Roaming Horses and Burros Act:
A Western Melodrama, 15 ENVTL. L. 503, 505-08 (1985) (discussing origins of horses in North America and reasons
for decline in population).
(3) 16 U.S.C. [sub section] 1331-1340 (2000), amended by Consolidated Appropriations Act of 2005, Pub. L. No. 108-
477, [section] 142, 118 Stat. 2809, 3070-71. See George Santini, Comment, Good Intentions Gone “Estray”–The Wild
Free-Roaming Horse and Burro Act, 16 LAND & WATER L. REV. 525, 525-26 (1981) (discussing history leading to the
enactment of the Act); Velma B. Johnston, The right to Save a Memory, 50 TEX. L. REV. 1055, 1057-63 (1972)
(discussing history of the Act’s enactment).
(4) 16 U.S.C. [sub section] 1332-1333.
(5) See BETSY A. CODY, WILD HORSE AND BURRO MANAGEMENT, Congressional Research Service Report for
Congress 97-370 (Mar. 19, 1997), http://www.ncseonline.org/NLE/CRSreports/biodiversity/boiodv-33.cfm (last visited
Nov. 20, 2005) (“Since 1971, the number of horses and burros allowed to remain on the range, the agencies’
management methods, and the plight of animals removed from public lands have been topics of considerable
debate.”).
(6) See CODY, supra note 5 (“About 96% of wild homes and burros live on [Bureau of Land Management] lands … with
the remainder on [Forest Service] lands….”).
(7) See 43 C.F.R. [section] 4.1(b)(3) (2004) (establishing jurisdictional reach of the Board); Animal Prot. Inst. of Am.,
118 I.B.L.A. 20, 25 n.3 (1991), 1991 IBLA LEXIS 15 (“The jurisdiction of th[e] Board embraces the final decisionmaking
authority with respect to appeals from decisions of BLM regarding the use of the public lands and their resources.”).
Final IBLA decisions are subject to judicial review under the Administrative Procedure Act, 5 U.S.C. [sub section] 551-
559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2000). Fallini v. Hodel, 963 F.2d 275, 277 (9th Cir. 1992).
(8) U.S. CONST. art. IV, [section] 3, cl. 2. In Kleppe v. New Mexico, 426 U.S. 529, 540-41 (1976), the Supreme Court
ruled that the protection of wild burros and homes on public lands was a proper exercise of congressional power under
the Property Clause. The Court observed: Although the Property Clause does not authorize an exercise of a
general control over public policy in a State, it does permit an
exercise of the complete power that Congress has over particular
public property entrusted to it. In our view, the ‘complete power’
that Congress has over public lands necessarily includes the power
to regulate and protect wildlife living there. Id. at 540-41 (quoting United States v. San Francisco, 310 U.S. 16, 30
(1940)). See generally Blake Shepard, The Scope of Congress’ Constitutional Power Under the Property Clause:
Regulating Non-Federal Property to Further the Purposes of National Parks and Wilderness Areas, 11 B.C. ENVTL.
AFF. L. REV. 479, 498-502 (analyzing the Court’s ruling in Kleppe).
(9) 16 U.S.C. [section] 1331. Under the Act, “wild free-roaming homes and burros” are defined as “all unbranded and
unclaimed homes and burros on public lands of the United States.” Id. [section] 1332(b).
(10) The Act was amended by the Federal Land Policy and Management Act of 1976, 43 U.S.C. [sub section] 1701-
1785, the Public Rangelands Improvement Act of 1978, 43 U.S.C. [sub section] 1901-1908, and most recently in 2004,
by the Consolidated Appropriations Act of 2005, Pub. L. No. 108-477, [section] 142, 118 Stat. 2809, 3070-71. BUREAU
OF LAND MANAGEMENT NATIONAL WILD HORSE AND BURRO PROGRAM, HISTORY OF THE PROGRAM,
http://www.wildhorseandburro.blm.gov/history.htm (last visited Nov. 20, 2005) (summarizing the history of the
WFRHBA).
(11) 16 U.S.C. [section] 1332(a) (2000).
(12) Id. [section] 1333(a).
(13) The term “Secretary” refers to the Secretaries of the Departments of the Interior and Agriculture. Id. [section]
1332(a).
(14) Id. [section] 1333(a).
(15) A designated range is the “amount of land necessary to sustain an existing herd or herds of wild free-roaming
horses and burros, which does not exceed their known territorial limits, and which is devoted principally but not
necessarily exclusively to their welfare in keeping with the multiple-use management concept for public lands.” Id.
[section] 1332(c).
(16) Id. [section] 1333(a). For a discussion of the policy of regulations affecting protection, management, and control of
wild horses and burros by the Bureau of Land Management, see 43 C.F.R. [section] 4700.0-6 (2004), and by the
Forest Service, see 36 C.F.R. [section] 222.21 (2005). The Act authorizes the Secretaries “to appoint a joint advisory
board of not more than nine members to advise them on any matter relating to wild free-roaming horses and burros
and their management and protection.” 16 U.S.C. [section] 1337.
(17) 43 C.F.R. [section] 4710.3-1 (2004).
(18) 36 C.F.R. [sub section] 222.20(15), 222.21(a)(1) (2005).
(19) 16 U.S.C. [section] 1333(a) (2000). See U.S. DEP’T OF THE INTERIOR, THE 10TH AND 11TH REPORT TO
CONGRESS ON THE ADMINISTRATION OF THE WILD FREE-RoAMING HORSES AND BURROS ACT FOR
FISCAL YEARS 1992-1995, at 7 (1997) [hereinafter REPORT TO CONGRESS] (describing how the Department
utilizes land-use planning, census techniques, and herd management to maintain a “thriving natural ecological
balance”). BLM manages 201 herd management areas in Arizona, California, Colorado, Idaho, Montana, Nevada, New
Mexico, Oregon, Utah, and Wyoming. The Fund for Animals Inc., 163 I.B.L.A. 172, 174 n.1 (2004), 2004 IBLA LEXIS
74; BUREAU OF LAND MANAGEMENT NATIONAL WILD HORSE AND BURRO PROGRAM, RANGELAND
MANAGEMENT, http://www.wildhorseandburro.blm.gov/rangeland.htm (last visited Nov. 20, 2005). FS territories are
found In all of those states with the exception of Colorado, Idaho, and Wyoming. REPORT TO CONGRESS, supra at
48.
(20) 16 U.S.C. [section] 1333(a).
(21) Id. [section] 1335. See 36 C.F.R. [section] 222.22 (2005) (providing procedures for ownership claims).
(22) 16 U.S.C. [section] 1334. See 43 C.F.R. [section] 4720.2-1 (2004) (“Upon written request from the private
landowner.., the authorized officer shall remove stray wild horses and burros from private lands as soon as
practicable.”); 36 C.F.R. [section] 222.26 (2005) (“Owner of land upon which wild freeroaming homes and burros have
strayed … may request their removal by … either the Forest Service or Federal Marshall.”).
(23) 16 U.S.C. [section] 1333(b)(1). See 43 C.F.R. [section] 4710.2 (2004) (“The authorized officer shall maintain … a
current inventory of the number of animals and their areas of use.”); 36 C.F.R. [sub section] 222.21(a)(5)-(6) (2005)
(requiring the Forest Service to “[m]aintain a current inventory of wild free-roaming homes and burros” to determine
appropriate management levels). With respect to inventories, the Board in Craig C. Downer, 111 I.B.L.A. 332, 337
(1989), 1989 IBLA LEXIS 292, explained: Inventory number chosen for administrative convenience as a starting point
for monitoring purposes are not [appropriate management levels] within the statutory meaning of the term…. The
inventory is to provide information which, along with other information gathered from monitoring and studies.., will allow
the Secretary to determine the optimum number of wild homes and burros that will allow a thriving natural ecological
balance and protect the range from deterioration. The inventory it self does not constitute that determination. Id.
(24) 16 U.S.C. [section] 1333(b)(2).
(25) The Act defines “excess animals,” in part, as wild horses and burros “which must be removed from an area In
order to preserve and maintain a thriving natural ecological balance and multiple-use relationship In that area.” Id.
[section] 1332(f)(2).
(26) Id. [section] 1333(b)(2). See 43 C.F.R. [section] 4720.1 (2004) (instructing BLM to immediately remove excess
animals in a specified order); 36 C.F.R. [section] 222.29(a) (2005) (instructing the FS to take immediate necessary
action to remove excess animals). The IBLA has interpreted the term “appropriate management level” to mean the
“optimum number’ of wild homes which results in a thriving natural ecological balance and avoids a deterioration of the
range.” Animal Prot. Inst. of Am., 109 I.B.L.A. 112, 119 (1989), 1989 IBLA LEXIS 95; Animal Prot. Inst. of Am., 128
I.B.L.A. 150, 155 (1994), 1994 IBLA LEXIS 4; Craig C. Downer, 111 I.B.L.A. 339, 341 (1989), 1989 IBLA LEXIS 293.
(27) 16 U.S.C. [section] 1333(b)(2)(A). For definitions of humane and inhumane treatment, see 43 C.F.R. [section]
4700.0-5(e)-(f) (2004) and 36 C.F.R. [section] 222.20(b)(5)-(6) (2005). Interpreting 43 C.F.R. [section] 4700.0-5(e), the
IBLA found that “[i]nhumane treatment may result as much from neglect as from design.” Nikki Lippert, 160 I.B.L.A.
149, 156 n.5 (2003), 2003 IBLA LEXIS 56.
(28) 16 U.S.C. [section] 1333(b)(2)(B). For provisions regarding placement of animals under private maintenance and
care, see 43 C.F.R. [section] 4720.1 (2004) and 36 C.F.R. [section] 222.29(c)(4) (2005).
(29) 16 u.s.c. [section] 1333(b)(2)(c). For provisions mandating humane and cost-efficient destruction of unadopted
animals, see 43 C.F.R. [section] 4730.1 (2004) and 36 C.F.R. [section] 222.29(c)(5) (2005). See generally Kyla
Seligsohn-Bennett, Comment, Mismanaging Endangered and “Exotic” Species in the National Parks, 20 ENVTL. L.
415, 434 (1990) (“The Act also requires the Secretary to determine whether any given herd is overpopulated, and if so,
to determine if appropriate population levels should be achieved by removal, destruction, or other methods which may
include sterilization.”).
(30) 16 U.S.C. [section] 1333(b)(2)(B).
(31) Id.; 43 C.F.R. [section] 4750.3-2(a)(4) (2004); 36 C.F.R. [section] 222.29(c)(4) (2005). Special requirements
govern applications involving more than four wild horses or burros. See 43 C.F.R. [section] 4750.3-3(a) (2004); 36
C.F.R. [section] 222.29(c)(4) (2005).
(32) 16 U.S.C. [section] 1333(c); 43 C.F.R. [sub section] 4750.1-4750.5 (2004); 36 C.F.R. [section] 222.29(c)(4),
222.29(d)(f) (2005). See Animal Prot. Inst. of Am. v. Hodel, 860 F.2d 920, 926 (9th Cir. 1988) (“Section 1333(c), in
authorizing the transfer of title to adopters, requires the Secretary to insure that an adopter who seeks title remains a
‘qualified individual’ and one who ‘has provided humane conditions, treatment and care’ for the animals he has
maintained.”).
(33) See Samantha Young, Wild Horse Sales Plan Defended, LAS VEGAS REV. J., Dec. 9, 2004, at 1B, available at
2004 WLNR 13682737 (“Government roundups have reduced herds from an estimated 50,000 to 36,000 animals.
Captured horses are either auctioned for adoption or sent to sanctuaries in Oklahoma and Kansas, where the BLM
spends $465 per horse annually on their care.”). It has been reported that as of March 2005, there were in excess of
24,000 wild horses in long-term facilities. Michael Milstein, Mustang Selloff Stirs Fears over Their Fate, THE
OREGONIAN, Mar. 27, 2005, at A17, available at 2005 WLNR 4826574. Of those, approximately 8,400 are over ten
years old or have been unsuccessfully offered for adoption at least three times. Kimberly Edds, Wild Horses Run Risk
of Slaughter, WASH. POST, Feb. 28, 2005, at A15, available at 2005 WLNR 3027616.
(34) Consolidated Appropriations Act of 2005, Pub. L. No. 108447, [section] 142(a)(2), 118 Stat. 2809, 3070 (to be
codified at 16 U.S.C. [section] 1333(e)). Revenues generated from these sales are applied to the adoption program. Id.
(35) 16 U.S.C. [section] 1338.
(36) Id. [sub section] 1338(a)(1)-(6). The regulations subjecting one to criminal liability are found at 43 C.F.R. [sub
section] 4770.1, 4770.5, 9264.7 (2064) and 36 C.F.R. [section] 261.1b, 261.21 (2005).
(37) 16 U.S.C. [section] 1338(a). The Department of the Interior’s regulations specify that the maximum penalty for their
violation is a $2,000 fine and one-year imprisonment. 43 C.F.R. [sub section] 4770.5, 9264.7(a)(16) (2004). The Forest
Service’s regulations state that a violation of the regulations pertaining to wild free-roaming horses and burros subject
one to a maximum penalty of a $500 fine and six months imprisonment, “unless otherwise provided.” 36 C.F.R.
[section] 261.1b (2005). The WFRHBA provides that the maximum penalty in the case of a willful violation of a
regulation promulgated under the Act is a $2,000 fine and one year in jail. 16 U.S.C. [section] 1338(a)(6) (2000).
(38) Pub. L. No. 100-185, 101 Stat. 1279 (1987) (codified in scattered sections of 18 U.S.C. and 28 U.S.C.).
(39) 18 U.S.C. [sub section] 3571(b)(5), (c)(5). If the Act is not deemed to affect the penalties under the Forest
Service’s regulation, then the maximum penalty for a violation of the regulation would be $5,000 in the case of an
individual and $10,000 in the case of an organization. Id. [section] 3571(b)(6), (c)(6).
(40) The National Environmental Policy Act of 1969, 42 U.S.C. [sub section] 4321-4370e, requires federal agencies to
prepare a detailed environmental impact statement for “major Federal actions significantly affecting the quality of the
human environment.” Id. [section] 4332(2)(C). Thus, an “impact statement is not required for a non-major action or a
major action which does not have a significant impact on the environment.” Sierra Club v. Hassell, 636 F.2d 1095,
1097 (5th Cir. 1981). To assist it in determining whether the environmental impact of a proposed action is sufficiently
significant to warrant the preparation of an environmental impact statement, an agency may perform an environmental
assessment. 40 C.F.R. [section] 1508.9(a) (2004). NEPA imposes only procedural requirements; it does not mandate
substantive results. See Marsh v. Or. Natural Res. Council, 490 U.S. 360, 371 (1989) (“NEPA does not work by
mandating that agencies achieve particular substantive environmental results.”); Vermont Yankee Nuclear Power Corp.
v. Natural Res. Def. Council, Inc., 435 U.S. 519, 558 (1978) (“NEPA does set forth significant substantive goals for the
Nation, but its mandate to the agencies is essentially procedural.”). Accordingly, “[i]f the adverse environmental effects
of the proposed action are adequately identified and evaluated, the agency is not constrained by NEPA from deciding
that other values outweigh the environmental costs.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350
(1988). See id. at 351 (“Other statutes may impose substantive environmental obligations on federal agencies, but
NEPA merely prohibits uninformed–rather than unwise-agency action.”); Strycker’s Bay Neighborhood Council, Inc. v.
Karlen, 444 U.S. 223, 227-28 (1980) (“[O]nce an agency has made a decision subject to NEPA’s procedural
requirements, the only role for a court is to insure that the agency has considered the environmental consequences; it
cannot interject itself within the area of discretion of the executive as to the choice of the action to be taken.” (internal
quotation omitted)).
(41) Redwing Horse Sanctuary, 148 I.B.L.A. 61, 63 (1999), 1999 IBLA LEXIS 43; accord The Fund for Animals, Inc.,
163 I.B.L.A. 172, 172 (2004), 2004 IBLA LEXIS 74 (“BLM must manage wild horses and burros on particular public
lands at population levels which protect both the animals and their rangeland habitat.”).
(42) 43 C.F.R. [section] 4700.0-5(d) (2004). See id. [sub section] 4710.3-1, 4710.4 (providing guidelines for
management of herd management areas); Redwing Horse Sanctuary, 148 I.B.L.A. 61, 63-64 (1999), 1999 IBLA LEXIS
43 (“[R]egulations at 43 C.F.R. [sub section] 4710.3-1 and 4710.4 provide that the management of wild horses is to
occur within designated [herd management areas] or within more extensive ‘herd areas,’ which are defined at 43
C.F.R. [section] 4700.0-5(d)…. “). Under 48 C.F.R. [section] 4710.4, BLM is also authorized to remove wild horses and
burros from locations outside herd areas. Wild Horse Spirit Ltd., 147 I.B.L.A. 317, 327 (1999), 1999 IBLA LEXIS 23.
(43) Don & Martha P. Sims, 141 I.B.L.A. 7, 8 (1997), 1997 IBLA LEXIS 160. See Comm’n for the Pres. of Wild Horses,
133 I.B.L.A. 97, 102 (1995), 1995 IBLA LEXIS 67 (“[T]he issue generally is whether the record supports a finding that
removal of excess horses is necessary to establish a thriving natural ecological balance and preserve a multiple-use
relationship in the area.”).
(44) Thomas U. Berry, 162 I.B.L.A. 221, 224 (2004), 2004 IBLA LEXIS 56. For factors used in removal determinations,
see Comm’n. for the Pres. of Wild Horses, 139 I.B.L.A. 327, 329 (1997), 1997 IBLA LEXIS 111 and Am. Horse
Protection, Inc., 134 I.B.L.A. 24, 26 (1995), 1995 IBLA LEXIS 94.
(45) Comm’n for the Pres. of Wild Horses, 139 I.B.L.A. 327, 330 (1997), 1997 IBLA LEXIS 111. See Animal Prot. Inst.
of Am., 151 I.B.LA. 396, 401 (2000), 2000 IBLA LEXIS 98 (“BLM need not wait until actual damage to the rangeland
has occurred, but rather, may take preventive action to avoid it by removing horses before their numbers become
excessive.”); Redwing Horse Sanctuary, 148 I.B.L.A. 61, 64 (1999), 1999 IBLA LEXIS 43 (“BLM is not required to walt
until the range is damaged before it takes preventive action; proper range management dictates herd reduction before
the herd causes damage to the rangeland. If the record establishes current resource damage or a significant threat of
resource damage, removal is warranted.”). As the Board explained in Animal Protection Institute of America. Past
experience in range management demonstrates that the rate of population increase will eventually flatten and there is a
risk of a precipitous fall in the animal count when range conditions deteriorate. In addition, when range land damage is
sustained, it is often necessary to reduce animal population to below that which could be supported by the remaining
forage to give the range an opportunity to recover from the damage.
If BLM were required to wait until actual damage occurs before
removing what is then obviously an excess number of homes, the number of homes in the remaining herd would, in
most likelihood, be
smaller than it would be if’horses are removed when the herd approached the critical size. It is fortunate that BLM is not
required to walt until the range has sustained resource damage as a result of an ecological imbalance before reducing
the size of the horse herd. Proper range management dictates removal of homes before the herd size causes damage
to the range land. Thus, the optimum number of homes is somewhere below the number that would cause damage.
Removal of homes before range conditions deteriorate ensures that homes enjoy adequate forage and an ecological
balance is maintained. 118 I.B.LA. 63, 74-75 (1991), 1991 IBLA LEXIS 20.
(46) Animal Prot. Inst. of Am., 151 I.B.L.A. 396, 401 (2000), 2000 IBLA LEXIS 98. The party challenging the action
bears the burden of demonstrating BLM error. Redwing Horse Sanctuary, 148 I.B.L.A. 61, 64 (1999), 1999 IBLA LEXIS
43; Joey R. Deeg, 141 I.B.L.A. 67, 70 (1997), 1997 IBLA LEXIS 166; Am. Horse Prot., Inc., 134 I.B.L.A. 24, 35 (1995),
1995 IBLA LEXIS 94.
(47) 43 C.F.R. [section] 4770.3(c) (2004). See generally Blake v. Babbitt, 837 F. Supp. 458 (D.D.C. 1993) (discussing
how, before enactment of new regulations, there was an automatic stay of removal decisions unless BLM succeeded in
getting the stay lifted but now an affected party must obtain a stay from IBLA or a U.S. district court).
(48) See, e.g., Animal Prot. Inst. of Am., 151 I.B.L.A. 396, 406 (2000), 2000 IBLA LEXIS 98; Redwing Horse Sanctuary,
148 I.B.L.A. 61, 64 (1999), 1999 IBLA LEXIS 43; Wild Horse Spirit Ltd., 147 I.B.L.A. 317, 322 (1999), 1999 IBLA LEXIS
23; Comm’n for the Pres. of Wild Homes, 145 I.B.L.A. 343, 347 (1998), 1998 IBLA LEXIS 166; Am. Mustang & Burro
Ass’n, Inc., 144 I.B.L.A. 148, 155 (1998), 1998 IBLA LEXIS 93; Wild Horse Organized Assistance, 141 I.B.L.A. 202,
206 (1997), 1997 IBLA LEXIS 202; Joey R. Deeg, 141 I.B.L.A. 67, 71 (1997), 1997 IBLA LEXIS 166; Comm’n for the
Pres. of Wild Homes, 139 I.B.L.A. 327, 329 (1997), 1997 IBLA LEXIS 111; Michael Blake, 138 I.B.L.A. 170, 179 (1997),
1997 IBLA LEXIS 27; Am. Horse Prot., Inc., 134 I.B.L.A. 24, 36 (1995), 1995 IBLA LEXIS 94; Comm’n for the Pres. of
Wild Homes, 133 I.B.L.A. 97, 103 (1995), 1995 IBLA LEXIS 67; Animal Prot. Inst. of Am., 131 I.B.L.A. 175, 179 (1994),
1994 IBLA LEXIS 202; Audubon Soc’y of Portland, 128 I.B.L.A. 370, 376 (1994), 1994 IBLA LEXIS 40; Animal Prot.
Inst. of Am., 128 I.B.L.A. 150, 158 (1994), 1994 IBLA LEXIS 4; Animal Prot. Inst. of Am., 122 I.B.L.A. 290, 296 (1992),
1992 IBLA LEXIS 12; Animal Prot. Inst. of Am., 118 I.B.L.A. 63, 77 (1991), 1991 IBLA LEXIS 20; Animal Prot. Inst. of
Am., 117 I.B.L.A. 208, 220 (1990), 1990 IBLA LEXIS 228.
(49) 403 F. Supp. 1206 (D. Nev. 1975).
(50) Id. at 1209-12.
(51) Id. at 1215.
(52) Id. at 1222.
(53) The water trapping method involved nothing more than the erection of a corral around a watering hole used by
horses. Id. at 1212 n.4. Once the horses entered the corral, a person hiding in a blind closed the gate. Id. The captured
horses were then taken to a holding corral, where they were medically examined and tested. Id.
(54) Id. at 1217-18.
(55) Id. The court rejected the argument that wild horses were given higher priority over other grazers on public lands.
Id. at 1220-21. The court observed: The decision to remove some of the wild horses is not so contrary to the statutory
authority, or so out of line with the principles of multiple use and sustained yield, that this Court can find it to be
arbitrary or capricious. Had the BLM decided to remove 400 cattle from the Valley, this Court would probably reach the
same conclusion: that decision would not be arbitrary or capricious, requiring this Court to set it aside. Id. at 1221. But
see George Cameron Coggins, The Law of Public Rangeland Management III: A Survey of Creeping Regulation at the
Pariphery, 1934-1982, 13 ENVTL. L. 295, 349-50 (1983) (“In holding that the WHBA does not give wild horses an
‘exalted status’ on the public range, the court relied on the 1964 Classification and Multiple Use Act–even though the
CMUA had expired years before the case arose.”).
(56) Frizzell, 403 F. Supp. at 1219 (“The overall effect of this round up will be to stabilize the range temporarily; the
effect on the Stone Cabin environment, if any, will be a slight improvement in the quality of the range.”).
(57) Id. at 1219 n.9.
(58) 608 F.2d 811 (9th Cir. 1979).
(59) Id. at 814-15.
(60) Id. at 813.
(61) Id. The district court in Andrus had concluded that the preparation of an environmental impact statement in the
case would interfere with the jurisdiction of the court in Natural Resources Council, Inc. v. Morton, 388 F. Supp. 829
(D.D.C. 1974), aff’d, 527 F.2d 1386 (D.C. Cir. 1976), which involved whether NEPA applied to BLM’s livestock grazing
program, and, if so, what level of compliance was required. The Ninth Circuit was not persuaded by the argument that
the court in Morton “intended to assert jurisdiction over all NEPA questions involving the public rangelands.” Andrus,
608 F.2d at 813. The court observed: The most that will be required is that the two groups of decisionmakers gathering
data consult with each other or co-ordinate their efforts. There is nothing to prevent the Secretary from providing for
such co-ordination. Judicial concern
at this stage of the proceedings is only that the decisionmaker
be adequately informed before making his decision; the mechanics of that informational process are for the Secretary,
not the courts,
to determine. Similarly, the exercise of jurisdiction by both courts creates no threat of conflicting decisions dealing with
range utilization because those decisions will be made by the Secretary, not the courts; the courts’ only concern is to
assure that the ultimate decision of the Secretary be an informed one. Id. at 814.
(62) Andrus, 608 F.2d at 814 (“[T]he environmental impact is not solely on the rangelands, but on the horses as well….
It cannot be denied that removal of a substantial number of wild horses will affect the quality of the human environment
as that quality is viewed by Congress.”). Following one of the roundups, an environmental impact statement was filed
and others planned. See Am. Horse Prot. Ass’n, Inc. v. Watt, 679 F.2d 150, 151 (9th Cir. 1982). In a number of
instances, following the preparation of an environmental analysis, the Board has rejected the contention that BLM was
required to prepare an environmental impact statement prior to the removal of wild horses. See, e.g., Michael Blake,
135 I.B.L.A. 9, 17-18 (1996), 1996 IBLA LEXIS 16; Animal Prot. Inst. of Am., 109 I.B.L.A. 112, 126-27 (1989), 1989
IBLA LEXIS 95; Craig C. Downer, 105 I.B.L.A. 369, 373 (1988), 1988 IBLA LEXIS 180.
(63) 694 F.2d 1310 (D.C. Cir. 1982).
(64) Id. at 1311.
(65) Id. at 1313.
(66) Id. at 1316. The court explained: The amendments introduce a definition of “excess” horses: horses are in
“excess” if they “must be removed from an area in order to preserve and maintain a thriving natural ecological balance
and multiple-use relationship in that area.” … This definition makes explicit what was, at most, implicit in the 1971 Act:
public ranges are to be managed for multiple uses, not merely for the maximum protection of wild horses. Id. at 1316-
17.
(67) Id. at 1318 n.37.
(68) Id. at 1319.
(69) Id. The Board, of course, has no power to review or reverse any order from a U.S. district court relating to the
removal of wild horses or burros, or to reverse a BLM decision that complies with such an order. Craig C. Downer, 105
I.B.L.A. 369, 372 (1988), 1988 IBLA LEXIS 180.
(70) See CODY, supra note 5 (discussing how debate on removal now centers on appropriate management level
determinations).
(71) 600 F. Supp. 585 (D. Nev. 1984).
(72) Id. at 586. Under the federal mandamus statute, “district courts … have original jurisdiction of any action in the
nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty
owed to the plaintiff.” 28 U.S.C. [section] 1361 (2000). Mandamus is only available if “the petitioner’s right to relief is
clear and indisputable, and there is no other adequate means by which the petitioner may attain the relief it seeks.”
Cobell v. Norton, 334 F.3d 1128, 1137 (D.C. Cir. 2003) (internal quotations omitted). Accord Lifestar Ambulance Serv.,
Inc. v. United States, 365 F.3d 1293, 1295 (llth Cir. 2004); In re Patenaude, 210 F.3d 135, 141 (3d Cir. 2000).
(73) Dahl, 600 F. Supp. at 594. See H.R. REP. No. 95-1737, at 15 (1978), as reprinted in 1978 U.S.C.C.A.N. 4127,
4131 (“The goal of wild horse and burro management … should be to maintain a thriving ecological balance between
wild horse and burro populations, wildlife, livestock, and vegetation, and to protect the range from the deterioration
associated with overpopulation of wild horses and burros.”).
(74) Dahl, 600 F. Supp. at 595.
(75) Id. See Don & Martha P. Sims, 131 I.B.L.A. 1, 7 (1997), 1997 IBLA LEXIS 160 (“The legislative history of the
[WFRHBA] supports a finding that Congress had no intention to maintain the free-roaming horses and burros at their
1971 levels.”).
(76) Animal Plot. Inst. of Am., 109 I.B.L.A. 112, 119 (1989), 1989 IBLA LEXIS 95. Accord Animal Prot. Inst. of Am., 124
I.B.L.A. 231, 236 (1992), 1992 IBLA LEXIS 112; Animal Prot. Inst. of Am., 116 I.B.L.A. 239, 243 (1990), 1990 IBLA
LEXIS 197; Craig C. Downer, 111 I.B.L.A. 332, 336-37 (1989), 1989 IBLA LEXIS 292.
(77) See Animal Prot. Inst. of Am., 122 I.B.L.A. 290, 296 (1992), 1992 IBLA LEXIS 12 (affirming BLM decision where
record reflected substantial monitoring of the condition of the range and usage of the public lands by wild horses);
Animal Prot. Inst. of Am., 117 I.B.L.A. 208, 219 (1990), 1990 IBLA LEXIS 228 (affirming BLM decision based upon
current monitoring data); Animal Prot. Inst. of Am., 117 I.B.L.A. 4, 8 (1990), 1990 IBLA LEXIS 208 (affirming BLM
decision supported by diligent analysis and research). The Board consistently has affirmed BLM’s use of stocking rate
formulas to determine the appropriate management level. See Thomas M. Berry, 162 I.B.L.A. 221, 225 (2004), 2004
IBLA LEXIS 56 (“The use of the desired stocking formula to determine the [appropriate management level] for wild
horses has been widely accepted on appeal to this Board when based on an analysis of forage consumption and
livestock and wild horse numbers.”); Comm’n for the Pres. of Wild Horses, 145 I.B.L.A. 343, 346-47 (1998), 1998 IBLA
LEXIS 166 (recognizing the validity of stocking rate formulas to determine area management levels); Comm’n for the
Pres. of Wild Horses, 133 I.B.L.A. 97, 102 (1995), 1995 IBLA LEXIS 67 (affirming use of stocking rate formula to
determine the appropriate management level).
(78) Wild Free-Roaming Horses and Burros Act, 16 U.S.C. [section] 1335 (2000).
(79) Id. [section] 1334.
(80) 551 F.2d 432 (D.C. Cir. 1977).
(81) Id. at 434.
(82) Id. at 435.
(83) Id. at 437.
(84) Id. at 442.
(85) Id. at 437.
(86) Id. at 438-40.
(87) Id. at 440-42. See Sheridan v. Andrus, 465 F. Supp. 662, 664 (D. Colo. 1979) (“The law is clear that the decision
on animal ownership is ultimately to be made by federal authorities.”). See also Raymond G. Rosenlund, 94 I.B.L.A.
308 (1986), 1986 IBLA LEXIS 214 (affirming decision denying claim of ownership to unbranded horses).
(88) 783 F.2d 1343 (9th Cir. 1986).
(89) Id. at 1344.
(90) Id.
(91) Id.
(92) Id.
(93) Id. at 1345. See Roaring Springs Assocs. v. Andrus, 471 F. Supp. 522, 526 (D. Or. 1978) (“[T]he Secretary has a
ministerial duty to remove the wild homes and burros from private lands.”).
(94) 783 F.2d at 1346. The court observed: The floor debates fail to support a finding of an implied duty to prevent
straying. Repeated emphasis is placed upon a desire not to rely on fenced ranges and to keep management at a
minimum. The conference committee assigned to reconcile differences between the original Senate Bill and the House
Amendment states: “Reliance on ranges, and particularly fenced ranges, would defeat the purpose of the legislation….
The principal goal of this legislation is to provide for the protection of animals from death and harassment….”
Prevention of straying is subservient to the fundamental goal of protecting the animals with minimal management effort.
Id. (citations omitted).
(95) Id. at 1346-47. The court held that for the remedy of removal to be meaningful under [section] 1344, it had to be
effected “within a reasonable time,” a calculation that would depend on the facts and circumstances of the particular
case. Id. at 1347. In subsequent litigation, the Ninth Circuit held that the Fallinis had not violated their range
improvement permit issued under the Taylor Grazing Act, 43 U.S.C. [sub section] 315-3150-1 (2000), when they
installed highway guardrails around a stock watering facility to prevent access to the water by wild homes. Fallini v.
Hodel, 963 F.2d 275, 278-79 (9th Cir. 1992).
(96) U.S. CONST. amend. V. The Takings Clause, which is also referred to as the Just Compensation Clause, see
Brown v. Legal Found. of Wash., 538 U.S. 216, 232 n.6 (2003), is made applicable to the states through the Fourteenth
Amendment. Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 239 (1897).
(97) For a comparison of physical and regulatory takings, see Lingle v. Chevron, 04-163, 2005 US Lexis 4342, at 18-19
(May 23, 2005); Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 321-23
(2002); and Melinda H. Benson, The Tulare Case: Water Rights, The Endangered Species Act, and the Fifth
Amendment, 32 ENVTL. L. 551, 579-83 (2002).
(98) 799 F.2d 1423 (10th Cir. 1986) (en banc).
(99) Id. at 1425. See Rebecca E. Harrison, Comment, When Animals Invade and Occupy: Physical Takings and the
Endangered Species Act, 78 WASH. L. REV. 867, 886 (2002) (discussing Hodel and its consideration of “whether
damage to private land caused by wild horses and burros should be compensated as a per se physical taking.”). But
see Aires v. United States, 133 F.3d 1454, 1458 (Fed. Cir. 1998) (“Under the ‘majority rule’ enunciated by the Tenth
Circuit [in Hodel], the trespass of regulated wildlife does not constitute a regulatory taking.”).
(100) Hodel, 799 F.2d at 1424, 1431.
(101) Id. at 1426.
(102) Id. at 1428.
(103) Id. at 1428-29.
(104) Id. at 1429-31. See generally Anna R.C. Caspersen, Comment, The Public Trust Doctrine and the Impossibility of
“Takings” by Wildlife, 23 B.C. ENVTL. AFF. L. REV. 357, 384-89 (1996) (discussing the public trust doctrine in the
context of “takings” by wildlife). The court rejected plaintiffs’ contention that the consumption of forage by wild horses–
without more–rendered the government liable under the Takings Clause. The court reasoned that the impact of the
regulation had to be considered by viewing the property as a whole. Hodel, 799 F.2d at 1430. Here, contrasting the
reduction in the value of the land brought about by the grazing of the wild horses to cases where the lost value of the
property was 75% and 92.5%, the court found that there was no taking. Id. at 1431. See Bradshaw v. United States, 47
Fed. C1. 549, 554 (2000) (“[Government] is not liable to plaintiffs for damage caused by the feral horses because the
feral horses are not instrumentalities of the government and because the regulation is a land-use regulation that is
reasonably related to the promotion of the public interest.” (quotation omitted)). But see Geoffrey L. Harrison,
Comment, The Endangered Species Act and Ursine Usurpations: A Grizzly Tale of Two Takings, 58 U. CHI. L. REV.
1101, 1121 (1991) (“The Mountain States court improperly analyzed the takings issue. A taking should be determined
by what the state has taken, not what the owner has retained. Even if the takings claim were considered within the
context of some diminution in the value of the whole, a taking may still be found.”). See also Fallini v. United States, 56
F.3d 1378, 1383 (Fed. Cir. 1995) (holding that complaint alleging that government had effected a taking by requiring
plaintiffs to provide water to wild horses in area where they conducted ranching operations was barred by statute of
limitations).
(105) Wild and Free-Roaming Horses and Burros Act, 16 U.S.C. [section] 1333(b)(2)(B) (2000).
(106) Id.
(107) Id. [section] 1333(c).
(108) The standards governing the physical facilities required and the amounts of water and feed are set forth in detail
in the regulations. 43 C.F.R. [sub section] 4750.3-2(3)(i)-(iv) (2004).
(109) Id. [sub section] 4750.3-2(a)(1)-(4). The regulations do not permit a person to act as the agent of another in the
adoption process through the use of a power of attorney or similar instrument. Id. [section] 4750.3-3.
(110) See Bureau of Land Management, Wild Horse and Burro Program, Adoption,
http://www.wildhorseandburro.blm.gov/adoption.htm (last visited Nov. 20, 2005) (providing link to internet adoption
process); Bureau of Land Management, National Wild Horse and Burro Program, Application for Adoption of Wild
Horse(s) or Burro(s) (providing Application Form 4710-10), available at

http://www.wildhorseandburro.blm.gov/BLM_4710-010.pdf.

(111) 43 C.F.R [sub section] 4750.4-2(a)-(b) (2004); Bureau of Land Management, Wild Horse and Burro Program,
Adopting a Wild Horse or Burro, http://www.wildhorseandburro.blm.gov/ requirements.htm (last visited Nov. 20, 2005).
BLM does not charge a fee for orphan foals and may reduce or waive the base fee if a wild horse or burro is unadoptable
at that fee. 43 C.F.R. [sub section] 4750.4-2(a) & (c)(1) (2004). See Grant F. Morey, 108 I.B.L.A. 354, 357
(1989), 1989 IBLA LEXIS 178 (ruling that refund of fee not contemplated by then operative regulations when BLM had
to cancel a private maintenance and care agreement and repossess animals).
(112) Bureau of Land Management, Wild Horse and Burro Program, Adopting a Wild Horse or Burro,
http://www.wildhorseandburro.blm.gov/requirements.htm (last visited Nov. 20, 2005).
(113) Id.; 43 C.F.R. [section] 4750.4-1 (2004).
(114) Id. [section] 4760.1(a). The regulations define “authorized officer” as the BLM employee who has been delegated
the duties described in the regulations. Id. [section] 4700.0-5(b)).
(115) Id. [section] 4750.4-4. The adopter, however, bears the responsibility of transporting the replacement animal. Id.
(116) Id. [section] 4750.4-3.
(117) Id. [section] 4750.4-1(a). See also id. [section] 4750.5(c) (“Effective the date of issuance of the Certificate of Title,
Federal ownership of the wild horse or burro ceases and the animal loses its status as a wild horse or burro and is no
longer under the protection of the Act or regulations under this title. “).
(118) See John Heilprin, Legal to Sell Wild Horses for Slaughter, DESERET MORNING NEWS, Dec. 9, 2004, at A06,
available at 2004 WLNR 13597643 (reporting that BLM spokeswoman Celia Boddington stated: “‘Since 1973, we have
placed 203,000 animals in good homes, and we’re looking forward to continuing our adoptions with the public.’”);
Editorial, Wild Horses: Ready, Aim, Slaughter, SEATTLE POST-INTELLIGENCER, Dec. 30, 2004, at B6, available at
2004 WLNR 15513449 (“[T]he Bureau of Land Management has placed more than 200,000 animals in homes since
the mid-1970s.”).
(119) Nikki Lippert, 160 I.B.L.A. 149, 152 (2003), 2003 IBLA LEXIS 56.
(120) There do not appear to be any judicial rulings reviewing the denial of an application. As noted earlier, final IBLA
decisions are subject to judicial review under the Administrative Procedure Act, 5 U.S.C. [section] 551-559, 701-706,
1305, 3105, 3344, 4301, 5335, 5372, 7521 (2000). See supra note 7 and accompanying text.
(121) See, e.g., Nikki Lippert, 160 I.B.L.A. 149, 155 (2003), 2003 IBLA LEXIS 56 (finding evidence of animal neglect
demonstrated lack of adequate facilities); John Linjatie, 137 I.B.L.A. 390, 393 (1997), 1997 IBLA LEXIS 254 (finding
fencing and horse shelter did not meet BLM requirements).
(122) See Leroy Kalenze, 106 I.B.L.A. 201, 205 (1988), 1988 IBLA LEXIS 127 (finding applicant sold homes to known
slaughter buyer).
(123) See Nikki Lippert, 160 I.B.L.A. 149, 155 (2003), 2003 IBLA LEXIS 56 (finding horse confined to degree that
hooves curled up).
(124) See Marvin Cook, 126 I.B.L.A. 158, 160 (1993), 1993 IBLA LEXIS 58 (finding applicant attempted to sell a horse
to which he did not know BLM held rifle).
(125) 18 C1. Ct. 302 (1989).
(126) Id. at 308.
(127) See Haberman v. United States, 26 C1. Ct. 1405, 1411 (1992) (requiring that plaintiffs “establish either an
express or implied-in-fact contractual relationship with the United States”).
(128) Id. at 1416-17. See infra section V.B.
(129) 729 F. Supp. 81 (D. Mont. 1989).
(130) 28 U.S.C. [sub section] 2671-2680 (2000).
(131) M.E. Eddleman, 729 F. Supp. at 82. Plaintiffs alleged that they had entered into an agreement to take care of the
horses based on representations that after one year, they would be able to adopt them. Id. at 83. Following the court’s
ruling in Animal Protection Institute of America v. Hodel, 860 F.2d 920 (9th Cir. 1988), however, the government
refused to transfer rifle when it learned of plaintiffs’ intent to sell the homes for slaughter. M.E. Eddleman, 729 F. Supp.
at 83.
(132) Tucker Act, 28 U.S.C. [sub section] 1346(a)(2), 1491 (2000).
(133) M.E. Eddleman, 729 F. Supp. at 83-84. In dismissing the action, the court noted that it appeared, given the
arguments presented, that plaintiffs were entitled to recover the moneys expended in taking care of the horses. Id. at
83.
(134) See generally Ted L. Barber, Sr., 156 I.B.L.A. 59 (2001), 2001 IBLA LEXIS 67; Julie R. Hayslip, 155 I.B.L.A. 315
(2001), 2001 IBLA LEXIS 48; Stefanie Lee, 151 I.B.L.A. 1 (1999), 1999 IBLA LEXIS 158; John Sampson, 150 I.B.L.A.
92 (1999), 1999 IBLA LEXIS 123; Larry Vanden Heuvel, 145 I.B.L.A. 309 (1998), 1998 IBLA LEXIS 162; Joe Peepers,
137 I.B.L.A. 324 (1997), 1997 IBLA LEXIS 266; William J. Ahrndt, 132 I.B.L.A. 126 (1995), 1995 IBLA LEXIS 23; Noel
Benoist, 131 I.B.L.A. 138 (1994), 1994 IBLA LEXIS 198; Larry Pulley, 131 I.B.L.A. 7 (1994), 1994 IBLA LEXIS 162;
Mark L. Williams, 130 I.B.L.A. 45 (1994), 1994 IBLA LEXIS 128; Darby L. Ryland, 126 I.B.L.A. 371 (1993), 1993 IBLA
LEXIS 177; John P. Wiley, 126 I.B.L.A. 261 (1993), 1993 IBLA LEXIS 70; Freddie R. Mason, 126 I.B.L.A. 28 (1993),
1993 IBLA LEXIS 46; George Gilchrist, 117 I.B.L.A. 142 (1990), 1990 IBLA LEXIS 221; G.W. Elliott, 117 I.B.L.A. 134
(1990), 1990 IBLA LEXIS 219; Kathleen Chapman, 115 I.B.L.A. 59 (1990), 1990 IBLA LEXIS 82; Thana Conk, 114
I.B.L.A. 263 (1990), 1990 IBLA LEXIS 168; Grant F. Morey, 108 I.B.L.A. 354 (1989), 1989 IBLA LEXIS 178; Esther E.
Lenox, 102 I.B.L.A. 224 (1988), 1988 IBLA LEXIS 212; Mary Magera, 101 I.B.L.A. 116 (1988), 1988 IBLA LEXIS 254;
Susan A. Moll, 101 I.B.L.A. 45 (1988), 1988 IBLA LEXIS 242; Kathryn E. Spring, 82 I.B.L.A. 26 (1984), 1984 IBLA
LEXIS 76; Dennis Turnispseed, 66 I.B.L.A. 63 (1982), 1982 IBLA LEXIS 259; Cecil McCandless, 64 I.B.LA. 76 (1982),
1982 IBLA LEXIS 427; Patrick E. Hamond, 60 I.B.L.A. 205 (1981), 1981 IBLA LEXIS 63; Geneva Barry, 54 I.B.L.A. 48
(1981), 1981 IBLA LEXI8 381.
(135) 43 C.F.R. [section] 4760.1(a) (2004). See Larry Vanden Heuvel, 145 I.B.LA. 309, 315 (1998), 1998 IBLA LEXIS
162 (recognizing sections “4760.1(a) and 4770.1(g) require the adopter to comply with the Agreement and the
regulations”).
(136) 43 C.F.R. [section] 4770.2(b) (2004). See Noel Benoist, 131 I.B.L.A. 138, 143 (1994), 1994 IBLA LEXIS 198
(“[C]ancellation is not mandatory where there is a failure to comply with the terms of the PMCA.”).
(137) 43 C.F.R. [section] 4760.1(d) (2004). See Larry Vanden Heuvel, 145 I.B.L.A. 309, 316 (1998), 1998 IBLA LEXIS
162 (“It is within BLM’s discretion to repossess a horse immediately or allow additional time to respond.”); Mark L.
Williams, 130 I.B.L.A. 45, 48 (1994), 1994 IBLA LEXIS 128 (“BLM may require, as a condition for continuation of the
Agreement, that an adopter take specific corrective actions if the authorized officer determines that an animal is not
receiving proper care, or the animal is being maintained in an unsatisfactory manner.”). As the Board observed in Julie
R. Hayslip, 155 I.B.L.A. 315 (2001), 2001 IBLA LEXIS 48, “[e]xcept in cases where the horses are in physical distress,
granting notice and opportunity to correct serves the valuable purpose of avoiding mistakes and preventing horses
from being seized in inappropriate cases.” Id. at 319.
(138) Mary Magera, 101 I.B.L.A. 116, 119 (1988), 1988 IBLA LEXIS 254 (quoting Dennis Turnispseed, 66 I.B.L.A. 63,
67 (1982), 1982 IBLA LEXIS 259). See Noel Benoist, 131 I.B.L.A. 138, 142 (1994), 1994 IBLA LEXIS 198 (“Where a
BLM inspection and/or credible reports by third parties of substandard care reveal that the animals are in a
deteriorating condition, this evidence will, in the absence of a showing that persuasive countervailing evidence exists,
constitute good and sufficient evidence that the terms of the agreement have been violated.”).
(139) Stefanie Lee, 151 I.B.L.A. 1, 2 (1999), 1999 IBLA LEXIS 158 (“When BLM cancels an Agreement, the adopter
has the burden of establishing that such action was improper.”); George Gilchrist, 117 I.B.L.A. 142, 146 (1990), 1990
IBLA LEXIS 221 (“[T]he burden is upon the adopter to establish that the cause of the animals decline was not
attributable to any conduct on his part or to the failure to take necessary care of the animals.”); Thana Conk, 114
I.B.L.A. 263, 276 (1990), 1990 IBLA LEXIS 168 (“[A]ppellant must establish the cause of the animal’s decline was not
attributable to any conduct on her part or any failure by her to take necessary care of the horse.”).
(140) See Ted L. Barber, Sr., 156 I.B.L.A. 59, 63 (2001), 2001 IBLA LEXIS 67 (canceling PMCA for sale of horses prior
to receiving rifle); Larry Vanden Heuvel, 145 I.B.L.A. 309, 315 (1998), 1998 IBLA LEXIS 162 (stating that title to horses
remains with the government for a minimum of one year until the BLM issues proper title); Darby L. Ryland, 126
I.B.L.A. 371, 373 (1993), 1993 IBLA LEXIS 177 (finding a violation of the Act for sale of horses prior to receipt of proper
title); G.W. Elliott, 117 I.B.L.A. 134, 136 (1990), 1990 IBLA LEXIS 219 (finding a violation of the Act for sale of horse
prior to BLM issuing proper title). See also 43 C.F.R. [section] 4710.1(d) (2004) (prohibiting “[s]elling or attempting to
sell, directly or indirectly, a wild horse or burro or its remains”).
(141) See Ted L. Barber, Sr., 156 I.B.L.A. 59 (2001), 2001 IBLA LEXIS 67 (death); Larry Pulley, 131 I.B.L.A. 7 (1994),
1994 IBLA LEXIS 162 (escape). See also 43 C.F.R. [section] 4750.4-1(d) (2004) (“The authorized officer shall be
notified within 7 days of discovery of the death, theft or escape of wild horses and burros covered by the agreement.”).
(142) See Stefanie Lee, 151 I.B.L.A. 1, 2 (1999), 1999 IBLA LEXIS 158 (stating that terms of adoption do not allow for
transfer of an animal without prior BLM approval). See also 43 C.F.R. [section] 4750.4-1(b) (2004) (“Wild horses and
burros covered by the agreement shall not be transferred for more than 30 days to another location to the care of
another individual without prior approval of the authorized officer.”).
(143) See Joe Peepers, 137 I.B.L.A. 324 (1997), 1997 IBLA LEXIS 266 (canceling PMCA for failure to properly corral
horses for inspection). See also 43 C.F.R. [section] 4750.4-1(c) (2004) (“Wild horses and burros covered by the
agreement shall be made available for physical inspection within 7 days of receipt of a written request by the
authorized officer.”).
(144) See William J. Ahrndt, 132 I.B.L.A. 126, 127 (1995), 1995 IBLA LEXIS 23 (failed to provide feed and shelter);
Larry Pulley, 131 I.B.L.A. 7, 9 (1994), 1994 IBLA LEXIS 162 (inadequate facilities); Mark L. Williams, 130 I.B.L.A. 45,
48-49 (1994), 1994 IBLA LEXIS 128 (caretaker indicated she would not take care of horses because she had not been
paid by putative adopter); John P. Wiley, 126 I.B.L.A. 261, 267 (1993), 1993 IBLA LEXIS 70 (failed to keep burro’s
hooves trimmed); Freddie R. Mason, 126 I.B.L.A. 28, 30 (1993), 1993 IBLA LEXIS 46 (failed to provide feed); George
Gilchrist, 117 I.B.L.A. 142, 146 (1990), 1990 IBLA LEXIS 221 (burros malnourished); Kathleen Chapman, 115 I.B.L.A.
59, 60 (1990), 1990 IBLA LEXIS 82 (failed to provide food and care to underweight horse); Thana Conk, 114 I.B.L.A.
263, 275-76 (1990), 1990 IBLA LEXIS 168 (inadequate facilities and treatment); Grant F. Morey, 108 I.B.L.A. 354, 356
(1989), 1989 IBLA LEXIS 178 (inadequate facilities and treatment); Esther E. Lenox, 102 I.B.L.A. 224, 225-26 (1988),
1988 IBLA LEXIS 212 (horse grossly misfed); Kathryn E. Spring, 82 I.B.L.A. 26, 30 (1984), 1984 IBLA LEXIS 76
(inadequate facilities and treatment); Dennis Tumispseed, 66 I.B.L.A. 63, 67 (1982), 1982 IBLA LEXIS 259 (inadequate
treatment); Cecil McCandless, 64 I.B.L.A. 76, 82 (1982), 1982 IBLA LEXIS 427 (commercial exploitation of horses).
(145) See John Sampson, 150 I.B.L.A. 92, 96 (1999), 1999 IBLA LEXIS 123 (finding, where horse was not in jeopardy,
BLM’s inability to contact applicant did not put the horse at risk); Noel Benoist, 131 I.B.L.A. 138, 143 (1994), 1994 IBLA
LEXIS 198 (finding the possibility of a violation of the notice term to be a mere technical violation not justifying
cancellation of the PMCA). The regulations state that “[a]dopters shall notify the authorized officer within 30 days of
any change in the adopter’s address[.]” 43 C.F.R. [section] 4750.4-1(g) (2004).
(146) See William J. Ahrndt, 132 I.B.L.A. 126, 129 (1995), 1995 IBLA LEXIS 23 (“Admitted inability to care for a horse
because of one’s physical incapacity caused by illness does not excuse one from the duty to care for assigned animals
imposed by entry into a maintenance agreement with BLM.” (internal citation omitted)).
(147) See id. (“Nor can one explain away observed physical deterioration in animals entrusted to his care by blaming
others for negligent performance of an agreement to feed and care for them.”). See also Mary Magera, 101 I.B.L.A.
116, 119 (1988), 1988 IBLA LEXIS 254 (“Whatever may have been the cause, the condition of the horses deteriorated
while in [adopter's] care. This circumstance required the action taken by BLM in this case.’).
(148) See Darby L. Ryland, 126 I.B.L.A. 371, 373-74 (1993), 1993 IBLA LEXIS 177 (upholding BLM’s repossession of
remaining horse after two adopted horses were sold); Susan A. Moll, 101 I.B.L. 45, 49-50 (1988), 1988 IBLA LEXIS
242 (finding that the inhumane and unauthorized killing of one horse justified the repossession of remaining horse).
(149) 671 F. Supp. 695 (D. Nev. 1987).
(150) Id. at 696-97.
(151) Id. at 698.
(152) Animal Prot. Inst. of Am. v. Hodel, 860 F.2d 920, 926 (9th Cir. 1988) (quoting 16 U.S.C. [section] 1333(b)(2)(B)).
(153) Id. (quoting 16 U.S.C. [section] 1333(c)).
(154) See 16 U.S.C. [subsections] 1333(d)(5), 1338(a)(4) (2000) (prohibiting the processing of wild horses or burros
into commercial products and providing criminal penalties for violations).
(155) Id. [subsections] 1333(b)(2), 1333(c), 1338(a)(3), 1338a.
(156) Hodel, 860 F.2d at 926. The court also noted that the legislative history of the Act supported its ruling. Id. at 926-
27. The court observed:
Legislative history … reveals that Congress intended the one-year walt for title transfer to act as a probationary period
that would weed out unfit adopters. The Secretary’s disregard for the announced future intention of adopters undercuts
Congress’ desire to insure humane treatment of wild horses and burros. In fact, it renders the adoption process a farce,
for the one-year requirement of humane treatment and care serves no purpose if on the day the one-year period
expires, the adopter can proceed to the slaughterhouse with his horse or burros. Id. at 927. See Haberman v. United
States, 26 CI. Ct. 1405, 1418 (1992) (“Documentation of an intention, evidenced prior to the transfer of title, to use the
wild horses and/or burros for commercial purposes is not consistent with the statutory and regulatory mandate.”);
Haberman v. United States, 18 C1. Ct. 302, 306 (1989) (“While [section] 1333(c) gives the Secretary authority to
transfer title of adopted horses to private individuals who have complied with the terms of a Private Maintenance and
Care Agreement, it by no means mandates that the Secretary automatically transfer title following a one year period.”).
(157) See United States v. Johnson, 685 F.2d 337, 339-40 (9th Cir. 1982) (rejecting challenges that the Act is
unconstitutionally vague and overbroad).
(158) See United States v. Hughes, 626 F.2d 619, 621-23 (9th Cir. 1980) (holding that the government possessed a
property interest in wild horses); United States v. Tomlinson, 574 F. Supp. 1531, 1534-35 (D. Wyo. 1983) (holding that
the government possessed an interest in wild horses by asserting dominion and control over them).
(159) United States v. Soussi, 316 F.3d 1095, 1101 (10th Cir. 2002) (quoting Kolender v. Lawson, 461 U.S. 352, 357
(1983)).
(160) United States v. Fisher, 289 F.3d 1329, 1333 (llth Cir. 2002) (citing with approval United States v. Mazurie, 419
U.S. 544, 550 (1975)). Accord United States v. Rybicki, 354 F.3d 124, 129 (2d Cir. 2003).
(161) Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 (1982). See also United States
v. Williams, 364 F.3d 556, 560 (4th Cir. 2004); United States v. Krumrei, 258 F.3d 535, 537 (6th Cir. 2001).
(162) See United States v. Austin, 902 F.2d 743, 744-45 (9th Cir. 1990) (evaluating vagueness and overbreadth
challenges separately); Diva’s, Inc. v. City of Bangor, 21 F. Supp. 2d 60, 64 (D. Me. 1998) (stating that the doctrines of
vagueness and overbreadth derive from different policies and look to different effects).
(163) Schwartzmiller v. Gardner, 752 F.2d 1341, 1346 (9th Cir. 1984); Connection Distrib. Co. v. Reno, 154 F.3d 281,
292 (6th Cir. 1998). (164) 685 F.2d 337 (9th Cir. 1982).
(165) Id. at 338. Section 1338(a)(1) subjects a person who “willfully removes or attempts to remove a wild free-roaming
horse or burro from the public lands, without authority from the Secretary” to a maximum fine of $2,000 and
imprisonment for one year. 16 U.S.C. [section] 1338(a)(1) (2000).
(166) Johnson, 685 F.2d at 339-40.
(167) Id.
(168) Id. at 339.
(169) Id. The defendant and an accomplice captured six wild horses on public lands In Nevada and transported them to
Utah where they sold them. Id. at 338. In the process, a mare was killed. Id. The defendants subsequently were
charged in a seven-count indictment with willfully removing wild free-roaming horses and maliciously causing the death
of a wild free-roaming horse. United States v. Christiansen, 504 F. Supp. 364, 365 (D. Nev. 1980). During an interview
with a BLM investigator, the defendant stated that there were no wild horses, just domestic horses which had gone
wild, and that BLM could not get the horses off the range so he was doing its work. Johnson, 685 F.2d at 338.
(170) Johnson, 685 F.2d at 339-40.
(171) Id. at 340.
(172) 626 F.2d 619 (9th Cir. 1980).
(173) 18 U.S.C. [section] 641 subjects anyone who “knowingly converts … [a] thing of value of the United States” to a
maximum term of imprisonment of ten years ff the value of the property converted exceeds $1,000. Id.
(174) Hughes, 626 F.2d at 620-21. The court dismissed the count in the indictment charging the defendant with
conversion under 16 U.S.C. [section] 1338(a)(2), finding that it was duplicitous with the count charging conversion
under 18 U.S.C. [section] 641. Hughes, 626 F.2d at 623.
(175) Hughes, 626 F.2d at 620. See supra note 28.
(176) Hughes, 626 F.2d at 621.
(177) Id. at 623.
(178) Id. at 625-27.
(179) Id. at 621-22.
(180) Id. at 622.
(181) Id.
(182) Id. The court reasoned:
[T]here is substantial authority that a “sufficient federal interest” to satisfy the elements of [section] 641 is present when
the government has “title to, possession of, or control over” the object in question…. While the mere regulations and
protection of the homes on the public lands may not constitute the requisite “possession” or “control” for the purposes
of this rule, a question we need not reach, the governmental decision to take some homes out of the public domain and
exercise complete control and dominion over them amounts to asserting a property interest in those horses.
Id.
(183) Id. Although the traditional common law rule arose in the context of private possession, the court found that there
was no authority prohibiting the application of the rule when it was the government that acquired possession. Id.
(184) Id. The defendant argued that since the Act’s definition of wild homes was limited to “unclaimed” homes, 16
U.S.C. [section] 1332(b), and since [section] 1333(d) implied that adopted homes remained unclaimed until title passed
to the owner, the government could not claim a property interest in homes it captured. Hughes, 626 F.2d at 622. The
court rejected this contention and ruled that the government acquired an interest in homes it captured. The court found
that while [section] 1332(b) of the Act identified the homes to be protected–those on public lands of the United States–
it did “not condition their continuing protection on the continuing existence of those identifying characteristics. Thus,
adopted homes continue[d] to receive protection as ‘wild freeroaming’ homes even though they [we]re neither on public
lands nor, strictly speaking, unclaimed.” Id. at 623 (internal citation omitted).
(185) Id. See United States v. Kelly, 204 F.3d 652, 656 (6th Cir. 2000) (“A defendant may be charged with multiple
offenses based on the same underlying conduct as long as each offense requires proof of an element not required by
the other.”).
(186) Hughes, 626 F.2d at 624.
(187) See id. (“Section 1338 contains no … knowledge element, which implies that a conviction could be based on the
intent to convert wild free-roaming homes to private use, with or without knowledge that the taking is wrongful.”).
(188) Id. at 625. Cr. United States v. Jones, 607 F.2d 269, 273-74 (9th Cir. 1979) (noting that when faced with
overlapping statutes regarding penalties, the degree of punishment should match the specific intent).
(189) Hughes, 626 F.2d at 625.
(190) Id. at 626. Since defendant received a concurrent sentence for his conviction under [section] 1338(a)(4) for
permitting the processing of the remains of wild homes and burros into commercial products, the court declined to
review his challenge to the sufficiency of the evidence. Id. at 626-27. See United States v. Young Buffalo, 591 F.2d
506, 513 (9th Cir. 1979) (exercising discretion under the concurrent sentence doctrine).
(191) 574 F. Supp. 1531, 1534 (D. Wyo. 1983) (noting that issue of whether Congress intended to assert a proprietary
interest over wild and free-roaming homes by enacting the WFRHBA was left undecided by the Supreme Court in
Kleppe v. New Mexico, 426 U.S. 529 (1976), and the court in Hughes).
(192) Tomlinson, 574 F. Supp. at 1532. In the first count of a four-count indictment, defendants were charged with
conspiracy under 18 U.S.C. [section] 371 to violate 16 U.S.C. [section] 1338 and 18 U.S.C. [section] 2314. Id. at 1532.
In the remaining three counts, they were charged with violations of 18 U.S.C. [section] 2314. Id.
(193) Id. at 1537.
(194) Id.
(195) Id. at 1532-33.
(196) Id. at 1532. 18 U.S.C. [section] 2314 subjects anyone who “transports, transmits, or transfers in interstate or
foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the
same to have been stolen, converted or taken by fraud” to a maximum term of imprisonment of ten years.
(197) Tomlinson, 574 F. Supp. at 1533. To sustain a conviction under 18 U.S.C. [section] 2314, the government
needed to present evidence establishing that the horses were stolen property, that they were transported in interstate
commerce, that they were worth at least $5,000, and that defendants knew that the horses were stolen. Id. A conviction
under 16 U.S.C. [section] 1338, on the other hand, did not require any evidence of minimum value or the interstate
transportation of the animals. Id.
(198) Id. As the court explained: Since the … [WFRHBA] was enacted after the [National Stolen Property Act], it is
reasonable to assume that Congress was aware of 18 U.S.C. Section 2314 when it enacted the … [WFRHBA], and
therefore felt there was no need to enact a parallel provision. Thus, the absence of any mention of interstate commerce
in the … [WFRHBA] is a non sequitur and does not logically lead the Court to conclude that Congress did not intend for
the provisions of 18 U.S.C. Section 2314 to apply to proceedings involving violations of 16 U.S.C. Section 1338. Id.
(199) Id. at 1534.
(200) Id. at 1535.
(201) Id. at 1537. The court also found that wild and free-roaming horses and burros were subject to commerce and
thus fell within the ambit of “goods, wares, and merchandise” as those terms were used in [section] 2314. Id. at 1538.
(202) Bureau of Land Management, National Wild Horse and Burro Program, Wild Horse and Burro Herd Area
Statistics–FY 2004, http://www.wildhorseandburro.blm.gov/statistics/2004/index.htm (last visited Nov. 20, 2005). See
Monte Whaley, Ft. Collins Group Corrals Ranch in Wyo. to Prevent Horse Slaughter, DENVER POST, March 11, 2005,
at B01, available at 2005 WLNR 3824571 (“There are roughly 37,000 mustangs and burros roaming public lands
managed by the BLM in 10 Western states, including 19,000 in Nevada.”). Most of these horses are in Nevada. Felicity
Barringer, New Provision Would Allow Slaughtering of Wild Horses, N.Y. TIMES, Nov. 25, 2004, at A28,
availableat2004 WLNR 12207926.
(203) See, e.g., Andrew Murr, A New Range War, NEWSWEEK, Feb. 7, 2005, at 51, available at 2005 WLNR 1381212
(“[C]ritics of [BLM] complain that horses are being blamed for damage caused by the more-numerous cattle.”); Alfred
Lubrano, Federal Bill Imperils Drive to Save Wild Horses From Slaughter, PHILADELPHIA INQUIRER, Dec. 6, 2004, at
A02, available at 2004 WLNR 13438057. (“Western ranchers … have long complained that free-roaming horses
compete with cattle for food and water. The horses live on federal land that the government leases to ranchers for 80 to
90 percent below market.”).
(204) See, e.g., Barringer, supra note 202, at A28 (“Horse lovers have fought to preserve and expand the herds,
whose bloodlines trace back, at least partly, to the animals brought by the Conquistadors in the 16th century.”).
(205) See Scott Sonner, Option of Slaughtering Wild Horses Enrages Activists, DESERET MORNING NEWS, Feb. 25,
2005, at All, available at 2005 WLNR 2891475 (“The BLM said it believes the 37,000 free-roaming wild homes and
burros on the range are about 9,000 more than natural food supplies can sustain. Its aim is to bring the population
down to about 28,000.”); Steve Tetreault, Horse Auction Input Urged, LAS VEGAS REV.-J., March 10, 2005, at 1B,
available at 2005 WLNR 3793894 (“The BLM estimates 37,000 wild horses roam 10 Western states, about half of them
on Nevada public lands. The agency is looking to reduce horse and burro populations to 28,000 by 2007.”).
(206) See Consolidated Appropriations Act of 2005, Pub. L. No. 108-447, [section] 142(a)(2), 118 Stat. 2809, 3070 (to
be codified at 16 U.S.C. [section] 1333(e)). Of the 22,500 burros and horses BLM has in holding facilities,
approximately one-third of them are eligible for sale. Tom Kenworthy, U.S Will Resume Selling Wild Horses, U.S.A.
TODAY, May 18, 2005, at 03A, available at 2005 WLNR 7902645.
(207) See, e.g., Tim Anderson, Wild Horse Patrons to Appeal to Public, RENO GAZETTE-J., Jan. 4, 2005, at 1,
available at 2005 WLNR 130911 (“Wild horse advocates from throughout the country said … they intend to appeal to
the American public to help reverse a new federal law allowing many of the animals to be sold at auction, after which
they could be taken to Slaughterhouses.”); Robert Gehrke, Bill Add-On Strips Wild Horses of Protection from
Slaughter, SALT LAKE TRIBUNE, Dec. 8. 2004, at Al, available at 2004 WLNR 13703522 (“‘We’ve now gone back to
the days when horses can be sent to slaughter indiscriminately and in massive numbers,’ said Mike Markarian,
president of The Fund for Animals. ‘It’s a huge setback for horses.’”); Samantha Young, Congress Passes Less-
Restrictive Wild Horse Bill, LAS VEGAS REV. J., Nov. 23, 2004, at 4B, available at 2004 WLNR 12166108 (“Chris
Heyed, a policy analyst with the Society for Animal Protective Legislation, called Congress’ latest move ‘a systematic
attack on wild horses.’”).
Although U.S. law prohibits the consumption of horse meat, slaughtering of horses is permitted and there are three
foreign-owned slaughterhouses in the United States. Lubrano, supra note 203, at A02. The concern is that older or
unadoptable horses will end up in the slaughterhouse and as horse meat in France, Belgium, Japan, and other
countries where such meat is considered a delicacy. Id; Rebecca Rosen Lum, Wild Homes Lose Protection From
Slaughter, CONTRA COSTA TIMES, Jan. 25, 2005, at F4, available at 2005 WLNR 1429872.
(208) See Anderson, supra note 207, at 1 (“U.S. Sen. Conrad Burns, R.-Mout., who sponsored the controversial
amendment, has said he believes most horses would wind up being adopted, not slaughtered.”); Merle Edsall, Letters
Forum, How to Save Wild Horses, WASH. TIMES, Dec. 12, 2004, at B05, available at 2004 WLNR 13929503 (“IT]he
auction yards will also accept bids from organizations and citizens who wish to provide a suitable home for the horses.
Many of these horses will cost less than $100. This is cheaper than the minimum $125 folks must pay at a BLM
adoption site.”).
(209) See Samantha Young, BLM Conducts Private Horse Sale, LAS VEGAS REV. J., Mar. 2, 2005, at 1B, available at
2005 WLNR 3227159 (“The Bureau of Land Management announced … that it has sold 200 Nevada wild horses or $50
apiece to a Wyoming group that has pledged to provide humane care for them.”).
(210) See THE BUREAU OF LAND MANAGEMENT, INFORMATION, IMPLEMENTATION OF NEW WILD HORSE
AND BURRO AUTHORITY AS DIRECTED BY CONGRESS,
http://www.blm.gov/nhp/spotlight/whb_authority/statement.htm (last visited Nov. 20, 2005) (“We are appealing to
interested groups, organizations and their membership, as well as the general public, to help us in this effort of finding
homes for these animals.’).
(211) See Press Release, BLM Sells 30 Wild Horses to Cattle Rancher (Apr. 4, 2005) (“The BLM is urging ranchers,
Tribes, wild horse advocacy groups, and humane organizations—as well as the general public–to help the agency find
good homes for horses affected by the new law.”), available at
http://ww.doi.gov/sales/news_releases/pr050404_whb.htm; Tetreault, supra note 205, at 1B (“The BLM has been
seeking out animal rights groups and Indian tribes in new efforts to place an estimated 8,400 horses.”). See also
Stephens Washington Bureau, BLM Sells 30 Wild Homes to Florida Rancher, $100 a Head, LAS VEGAS REV.-J., Apr.
5, 2005, at 6B, available at 2005 WLNR 5356666 (“[In March 2005,] BLM … sold 600 homes to two Indian tribes in the
Dakotas, 200 homes to a company based in Wyoming; and 13 to a wild horse rescue group in California “).
In April 2005, BLM suspended further sales pending an investigation into the slaughter of 41 horses. Tim Anderson,
Wild Horse Advocates Urge BLM to Suspend Roundups, RENO GAZETTE-J., May 18, 2005, at 2, available at 2005
WLNR 7926974. In May 2005, BLM resumed its sales of wild burros and horses after revising its pre-sale negotiation
procedures and bill of sale. The Bureau of Land Management, Information, http://www.doi.gov/sales (last visited Nov.
20, 2005). See also Scott Sonner, Critics: BLM Safeguards Too Lax, COLUMBIAN, May 25, 2005, at C2, available at
2005 WLNR 8286765 (“The BLM’s revised bill of sale states that the purchaser will not knowingly sell or transfer
ownership of any horse or burro to anyone ‘with an intention to resell, trade or give away the animal(s) for processing
into commercial products.’ Violators are subject to criminal prosecution.”). As of May 2005, BLM had sold 2,000 horses.
See Brian Faler, To Protect Mustangs, BLM Tightens Rules on Animal Sales, WASH. POST, May 26, 2005, at A25,
available at 2005 WLNR 8351098 (“So far, the agency has sold about 2,000 horses. It has delivered about 1,000, of
which, officials said, 41 have been killed. The remainder have been sold but not delivered, while the BLM checks on
the new owners. It also said it plans to review the status of the horses and burros that have been sold and delivered.”).
(212) Wild and Free-Roaming Horses and Burros Act, 16 U.S.C. [section] 1331 (2000).
(213) Id. [section] 1333(a).
NOTE: All illustrations and photos have been removed from this article.

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