Challenging the Government’s Management of Wild Horses in our Western States in The Fund for Animals v. U.S. Bureau of Land Management

Appearing in JNREL Vol. 22 No. 2 this comment was written by staff member Melanie Price. The abstract was written by staff member Derek Leslie.

This Comment analyzes the legal avenues available to activist individuals or groups who seek to prevent a government agency from implementing an environmental plan. The Fund for Animals v. U.S. Bureau of Land Management, 460 F.3d 13 (D.C. Cir. 2006), provides an instructive lesson for potential plaintiffs in this area.

The Plaintiff in this case, The Fund for Animals, attempted to stop the U.S. Bureau of Land Management (hereinafter "BLM") from implementing a plan that would reduce the population of wild horses and burros. The BLM's plan was promulgated in order to address increasing concerns about overpopulation of wild horses and its effect on the ecological balance. In fact, the BLM was specifically tasked with maintaining appropriate management levels of these populations in order to achieve this balance under the Wild and Free-Roaming Horses and Burros Act (hereinafter "WHBA") enacted by Congress. The challenged plan was proposed to Congress pursuant to the Act, passed, and BLM field offices had begun implementing the plan at the time of litigation.

The Fund sought to enjoin the BLM from implementing this plan. They argued that the BLM violated the National Environmental Policy Act (hereinafter "NEPA"), because it did not prepare an environmental impact statement before implementing the plan. Recognizing that 5 U.S.C. §702 mandates that the federal courts are not to review agency policy in the abstract and that the WHBA and NEPA both lacked provisions providing standing, the Fund's claim was based on a cause of action under the Administrative Procedure Act (hereinafter "APA"). Under the APA there is a cause of action to "a person suffering legal wrong because of an agency action, or adversely affected or aggrieved by agency action." Importantly, the APA states that courts may only intervene when a specific final agency action has an actual or immediately threatened effect.

The district court dismissed the parts of the Fund's injunction request concerning the removal strategy because the BLM's plan, in their view, was not a final agency action. The Fund's objections to specific gathers, where the plan had already been implemented, the court suggested were moot. The Court of Appeals, affirmed suggesting that a Budget Request to Congress was too tenuous to the removal of the animals to constitute reviewable specific implementation of a broader agency policy. Moreover, they found that an expired internal memorandum to BLM field offices with guidance on implementing the plan within the allotted time did not represent "final agency action" and because of its expiration date, it was moot. As to the seven gathers where the plan had already been implemented, the Court of Appeals, agreed with the district court that this part of the claim was also moot.

This case demonstrates the narrow way courts will approach review of agency action under the APA. Potential plaintiffs have only a minute actionable window in which to bring a claim satisfying justiciability without raising issues of mootness. Plaintiffs must be keenly aware of this narrow opportunity if they have any hope of getting an injunction against agency action. Groups like The Fund for Animals, would do well to be vigilant as budget proposals come to Congress, in hopes of finding politicians, and votes, sympathetic to their point of view. Sympathy, as this case shows, is not the courts main concern when asked to intervene in agency action.