Wild, free and overabundant.

Photographer: KAREN BLEIER/AFP/Getty Images

Wild Horses Couldn't Drag the Government to Act

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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By law, the federal government is supposed to manage the wild horse population in the West. But what happens if, despite an overabundance of the beautiful beasts, the government does nothing about it? The official answer is not much, according to a federal appeals court that turned down Wyoming’s challenge to federal inaction. The decision follows familiar principles of deference to agency action (or, in this case, inaction). But it leaves farmers or others negatively affected by the overpopulation with essentially no recourse, a result that seems at odds with the intent of the law.

Wyoming v. Department of the Interior -- which I like to think of as the "All the Pretty Horses" case -- arose under the wonderfully named Wild Free-Roaming Horses and Burros Act, enacted by Congress in 1971. (I’m happy to admit that I had never heard of this law before, but just reading the name in the opinion made me feel that I love my job.) The law was enacted to protect wild horses from “capture, branding, harassment, or death.” It designates the wild horses as an “integral part of the natural system of the public lands” and assigns responsibility for them to the Bureau of Land Management.

It’s worth noting that, although wild horses have roamed the West for nearly half a millennium, they aren’t strictly speaking indigenous to the West, having been introduced by Spanish colonizers. When Congress said the horses were integral to the “natural system,” it was no doubt influenced more by the romantic idea of wild horses than by environmental science.

The reason that matters is that wild horses don’t exist in a delicate ecological balance with predators. By protecting them from capture, Congress created conditions that could easily lead to overpopulation.

In partial recognition of the danger, Congress directed the Bureau of Land Management to manage the horses “in a manner that is designed to achieve and maintain a thriving natural ecological balance on the public lands.” The law instructs the agency to count the wild horses in each of several herd-management areas, determine “appropriate management levels” of wild horses that each area can sustain, and determine the method of achieving the designated population levels there.

In August 2014, Wyoming Governor Matt Mead wrote to the bureau, complaining about the wild horse population in seven herd-management areas where the state owns land and asserting that the populations were well above appropriate management levels.

When the bureau wrote back, its response took the form of a polite kiss-off. It said that “the BLM acknowledges your concerns” but also had “other responsibilities under the Act.” Then it said that plans for 2015 were already under way, and that “the BLM will utilize our resources and capabilities to the maximum extent possible under the circumstances, including the limited capacity at holding facilities.”

That was a way of telling Wyoming that the Bureau of Land Management wasn’t going to do anything about the horse population in the relevant herd-management areas. The letter implied that the agency couldn’t afford to capture the excess horses and resettle them: It asked for help from the state to identify a strategy "that recognizes the many challenges we face to achieve a fiscally and ecologically sustainable program.”

Wyoming sued the Bureau of Land Management on the theory that it was obligated to reduce the population once it determined there were too many horses. But the district court rejected the claim, and the U.S. Court of Appeals for the 10th Circuit upheld the decision.

The appeals court reasoned that the law doesn’t require the bureau to take action. The law says the bureau “shall” take inventory of the horses, which is mandatory. But it also says that the agency “shall immediately remove excess animals from the range” when the secretary of the Interior has determined “that action is necessary to remove excess animals.”

According to the court, that means that the Bureau of Land Management’s duty to remove the excess animals only arises if the agency itself thinks that is “necessary.” And it can determine necessity in light of its own priorities -- including whether it has the resources to make sure that the horses are captured humanely and resettled in humane circumstances.

It’s not unusual for courts to interpret statutes as giving agencies great leeway to determine when they’re going to take action. In general, this is a good practice, since agencies always must engage in some cost-benefit analysis.

In this case, however, the court’s reading of the statute basically renders the mandatory parts of the law a dead letter. It effectively says that no one can kill or capture wild horses, and that the Bureau of Land Management need only manage a population if it wants to.

That would seem to thwart the goal of the legislation. Wild horses are beautiful, but they aren’t actually an ecologically sustainable part of the West without management. Congress can insist wild horses are “natural.” But nature has a way of getting the last word.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Brooke Sample at bsample1@bloomberg.net