Mountain States Legal Foundation v. Clark

SETH, Chief Judge. The complaint of plaintiffs, who are owners of grazing lands, brought this action against the Secretary of Interior and the United States for the unconstitutional taking, without condemnation proceedings, of forage on their private lands. This taking, [793] it is alleged, resulted from the failure by the defendants to manage herds of wild horses contrary and in violation of the Wild Free-Roaming Horses and Burros Act, 16 U.S.C. § 1331 et seq. Mandamus is sought to require defendants to remove the horses from plaintiffs’ lands. Also substantial damages were sought against the Secretary of Interior and other officials for willfully preventing the proper management of the horses under the Act to the damage of plaintiffs. This case concerns grazing in the southwestern part of Wyoming known as the checkerboard. These lands are so described because alternate sections are private lands and public lands administered by the Bureau of Land Management under the Taylor Grazing Act. The ownership is thus eheckerboarded. In the area in question, which is about 115 miles long and 40 miles wide, the Rock Springs Grazing Association composed of a group of ranchers owns or leases the private lands. The area, of course, generally follows the railroad. The land is described as high desert, the forage is very limited, the area is sensitive to overuse, and there are few if any fences to mark property lines. The Grazing Association has been in business since 1909 and has used the area with seasonal variations during that time. The depositions indicate that with the limited forage and the need to use different portions of the area during different seasons a large acreage is required to support a horse or cow. The affidavits show that horses have used the range since ranchers have been in the area. The horses were originally from ranchers’ herds as all were not gathered, but were left on the range to be available as a source of ranch horses and horses for sale for military and general use. The record shows that studs of good varieties were introduced by the ranchers to improve the herds. The depositions describe the different strains or breeds of horses which so resulted and which can be now recognized. There apparently has been no attempt in recent years, and certainly not since 1971, by the ranchers to manage the herds of horses. It appears that a large percentage of the horses in the area are unclaimed. Since the Government has assumed control of the horses their numbers have increased greatly. The horses compete for forage with wild animals and with livestock on the entire range. The complaint alleges that the Secretary has mismanaged the public lands in the Rock Springs District in that he has not managed the horses in accordance with the Wild Horse Act thereby causing a deterioration of the range. The Government admits the horses have been using plaintiffs’ lands. The complaint states that requests have been made that the horses be removed from plaintiffs’ lands. This the Government also admits. The complaint as to the number of horses, states: “Plaintiff Rock Springs Grazing Association is desirous of maintaining and preserving a reasonable number of wild horses in the checkerboard area pursuant to previous understandings with the defendants and other interested parties. The Association has expressed to defendants on numerous occasions its willingness to accomplish the purposes of the Wild Horse Act and allow a reasonable and manageable number of wild horses to remain on Association land.” The plaintiffs allege that the control and management of the horses is exclusively in the Government (and the Secretary agrees); that this control is complete; that the Government by the express provisions of the Act must remove horses from private lands when requested; that many such requests have been made by plaintiffs but the horses continued to consume the forage on plaintiffs’ lands and thereby a taking of their property resulted. The plaintiffs sought a writ of mandamus to have the horses removed from their property, prayed for nominal damages for the consumption of forage, and for substantial damages against the Secretary for failure to administer the Wild Horse Act and thereby causing damage to plaintiffs. [794] The trial court issued the writ of mandamus and ordered all wild horses removed from the Association’s land within one year and a reduction in the wild horse population on the public lands within two years. The trial court eventually dismissed the claim against the BLM director and granted the Government’s cross-motion for summary judgment on the unconstitutional taking claim. The plaintiffs relinquished their claim for attorneys’ fees and costs. The plaintiffs appeal the dismissal of their claim against the BLM director and the court’s order denying nominal damages against the Government. The horses generally, and especially those with identifiable characteristics of particular breeds, cannot be classified as “wild animals” in an attempt to compare them or the Act to other statutes relating to wild birds and wild animals. The horses do not have to be “wild animals” to come within the Act, but other requirements must be met. In the checkerboard area, the parties have assumed that the horses in question come within the definition in the Wild Horse Act. Since the Government has assumed jurisdiction over the horses under the Act it has thereby taken the exclusive and complete control of the horses and also the duty to manage them. As to control, the Act and Regulations permit no one else to move the horses no matter where they are. No one else can manage the horses. Landowners cannot move them from their land. If the horses stray from public lands onto private lands the owners must request the Government to remove the horses if they want them off their land. It is this complete and exclusive control which makes the Act unique. It cannot be compared, as we have stated, with statutes which relate to wild animals or birds. The drafters of the Act so made the control exclusive in the Government and complete with both the affirmative and negative provisions (with criminal penalties). The implications of the complete and sole control must be examined and applied to the legal relationship of the parties. This degree of control can become the significant factor in an examination of the liability of the Government. The control feature is reinforced by an affirmative express management duty on Interior. The Act thus presumes (and the agency apparently acknowledges) that the management responsibility can and must be carried out. This is the physical management of the horses as to range use, water, location at seasons, and numbers. Thus it is mandated that the horses can be moved to places they should use for good range management and that their numbers be kept within proper limits. The Act further presumes that Interior can and will control and manage the horses by including an explicit duty on Interior to remove the horses from private land when requested to do so. The agency has assumed this duty and an ability to so act. The plaintiffs allege that the Secretary has not managed the horse herds as required in the Act, has not controlled them or their numbers, see American Horse Protection Ass’n v. Andrus, 460 F.Supp. 880 (D.Nev.1978), and also it has not removed horses from their private lands when requested to do so. See Roaring Springs Associates v. Andrus, 471 F.Supp. 522 (D.Nev.1978). Requests to remove the horses it is alleged were made by the plaintiffs at the many meetings with the BLM, and later formal written requests were made all of which the Secretary acknowledges. Requests were also made to reduce the number of horses on the checkerboard to reduce damage to the range. All concerned acknowledged the increase in numbers was causing problems. The Secretary in his Answer herein said: “Admit that an increase in wild horse population has resulted in an over-population and an excessive demand on the public range.” The requests to remove the horses were not met despite the statutory duty of Interior. This inaction knowingly permitted the horses to consume forage on plaintiffs’ private land according to the pleadings and affidavits. This is alleged by plaintiffs as [795] a taking of their forage crop — a taking of their private personal property. Substantial damages resulting from the taking of the forage is described but only nominal damages are prayed for. The cause of action, and the allegations relating to failure to manage the horses on a sound ecological basis under Congressional policy statements, was never put in issue. The Government seems to have taken no position because it answered that it was without knowledge or information on the matter. The trial court did not include these causes of action and issues in his determination of the case. It is only by reason of the eheckerboarded ownership of the lands that horse control and management could become a factor or issue on the taking of plaintiffs’ property. The BLM horse management practices for the District, insofar as it covers the checkerboard, is and was as applicable to private lands as it was to public lands. The Act was so drafted that the BLM was the only one who could in any way manage or control the impact of the increased number of horses using everybody’s land. The affidavits describe the range damage caused by the increase in the number of horses and their seasonal management. This overuse was asserted' to include consumption of the forage crops of plaintiffs and thereby it was alleged that a taking of private property had taken place. The taking allegations are also based on the refusal of the BLM to remove the horses from plaintiffs’ land. This may or may not be distinct from asserted failure to manage under the Act. The allegations as to a taking do not refer or rely on a single event or occurrence but to a continued course of action during the year for a period of years. Personal property is within the constitutional protection as to “taking”. United States v. 12.18 Acres of Land in Jefferson County, Kansas, 623 F.2d 131 (10th Cir.1980); King v. United States, 427 F.2d 767 (Ct.Cl.1970). See also Pennsylvania Hospital v. Philadelphia, 245 U.S. 20, 38 S.Ct. 35, 62 L.Ed. 124 (1917). The issuance of the writ of mandamus did not become an issue on this appeal and no position is taken as to it. The denial of damages against the Secretary is affirmed. The judgment of the trial court is reversed as to the issue of the taking of forage for a factual determination whether such forage was taken by the continued failure to manage the horses and by permitting their continued use of private lands by the increased number of horses and burros since 1971. IT IS SO ORDERED.