On November 27, the Institute for Public Representation filed an amicus brief on behalf of four natural resources and administrative law professors in the case American Wild Horse Preservation Campaign v. Jewell, et al., currently on appeal in the Tenth Circuit. The brief supports the Petitioners’ challenge to the Bureau of Land Management’s (BLM) unlawful removal of over 1,200 wild horses on federally protected habitat.
When removing wild horses from public and private land, BLM must comply with the procedures in the Wild Free-Roaming Horses and Burros Act (WHA). In 2014, a private cattle-grazing association requested that BLM remove wild horses on both the public and private Checkerboard lands. In responding to that request, BLM decided to remove wild horses from both public and private lands pursuant only to “private land” removal procedures (required by Section 4 of the WHA), circumventing “public land” procedures (required by Section 3 of the WHA).
IPR’s brief argues that under the plain language of the WHA, Congress unambiguously directed BLM to follow Section 3’s rigorous procedures before removing wild horses on “public lands.” Therefore, the agency’s 2014 decision to remove wild horses on the Checkerboard under Section 4—the “private land” removal process—alone, violates numerous principles of statutory interpretation. Alternatively, because the agency presented its novel interpretation that Section 4 authorizes wild horse removal on public lands in just one sentence of its 2014 “Decision Record,” without giving opportunity for notice-and-comment on its new reading, BLM’s position does not deserve deference from the courts under the Chevron doctrine.
If the Tenth Circuit approves BLM’s interpretation of the WHA, BLM will have carte blanche authority to systematically bypass the strict procedures for removal of wild horses on “public lands.” The amicus brief clarifies that Section 3 of the WHA should not be subordinate to discretionary actions taken to protect private landowners, and that BLM’s novel interpretation of the WHA is nowhere near the exercise of policymaking authority required by Mead to receive Chevron deference.
Georgetown Law students Stephanie Littlehale (L’16) and Taylor Denson (L’16) helped research and draft the brief, along with graduate teaching fellow/staff attorney Danny Lutz.