[00:00:00] Speaker 04: You may begin. [00:00:18] Speaker 03: Good morning. [00:00:19] Speaker 04: Good morning. [00:00:21] Speaker 03: May it please the court. My name is Alan Schroeder. I represent the ranchers and the appellants in this matter before the court this morning. [00:00:31] Speaker 03: We get to talk about wild horses, the American icon of the West. [00:00:37] Speaker 03: But sadly, we are dealing with an issue where the federal government is not taking care of them, as well as the underlying public land upon which they depend. The federal government issued decision records that were seemingly going to provide a plan to fix that problem. But a closer examination of that plan revealed something that did not reverse the harm, did not restore the natural thriving ecological balance, all without any legal substance. [00:01:17] Speaker 03: The district court agreed and gave the government a pass. We're now before the court today for this court to provide the needed substance. [00:01:29] Speaker 03: So how do we get there? [00:01:32] Speaker 03: It's apparent we need to get there because however odd it is that the Wild Horse and Burrow Act was passed in 1971 and then amended in 1978, there hasn't been a court, particularly within the Ninth Circuit, that has made a decision or decided on the meaning of immediately as it's used in Section 133 or 1,333 in the Wild Horse and Burrow Act. [00:02:04] Speaker 03: One can get some context for that by looking at the Act. [00:02:08] Speaker 03: The Act, when it was enacted in 1971, was remarkably unanimously passed by Congress. It was unanimously passed because there was a problem with the killing and harassment of the wild horses, even sometime for sport. And so the Act was overwhelmingly passed by Congress. And yet, it was overwhelmingly successful in curing the problem. [00:02:41] Speaker 03: Just a short seven years later, Congress had to take another look. And they took another look in enacting the Multiple Use Sustained Yield Act and additionally with that, these amendments to the Wild Horse and Burrow Act that brought before you today the the main portion of the Wild Horse and Burrow Act, as amended in 1978, that's Section 1333B2. That is really the focus here today. [00:03:14] Speaker 03: What's important about what happened in 1978 is... Mr. Schroeder, do you mind if I interrupt? [00:03:20] Speaker 01: Sure. So if we're looking to the text of the statute for immediately, would you agree that it can't happen overnight? So there are certain definitions of immediate that would suggest something overnight or right away. And there are practical realities behind, you know, what the agency proposes to do and how to do it over a 10-year span. So give me your sense of what immediate should mean in the context of these practical realities. [00:03:49] Speaker 03: Well, certainly it means, as what the Culver decision said in the D.C. Circuit in 2022, that it should mean that after they have made the requisite determination under the act, that's the focus, that if there's a determination of excess, if there's a determination that there should be an action to remove, then at that point in time it must be done expeditiously as possible. [00:04:21] Speaker 04: But, I mean, when we look at the statute, it certainly does use the word immediate. There's no question about that. But then the statute follows up the use of that word with a series of required actions, which by definition can't be done immediately. The secretary has to order old, sick, and lame animals to be destroyed. The secretary has to set up a plan where people can adopt them. The secretary then has to take the potentially adoptable animals that can't be adopted, has to have them destroyed humanely. [00:04:59] Speaker 04: I mean, these things can't all be done like yesterday. [00:05:04] Speaker 03: I would agree with that. And it's important to know that even Judge Ginsburg, when she was on the D.C. Circuit and issued the 1982 opinion in the American Horse Protection, she grappled with this issue. And what she said is important of what I wanted to get to in terms of your question too, Judge Sanchez, is there was a shift in focus in 1978. The shift in focus was from the protection of the horse to the protection of the underlying public lands. [00:05:42] Speaker 03: And so with that, it's important to note that when reading the answering brief of the federal government in this case, the entire focus is just on the horses, and to your question, Judge Bennett, as dealing with the element of these practical realities that you have. And so really, when you get into that, the... Aren't those two things related? [00:06:06] Speaker 01: I mean, part of the statutory language is to restore a thriving natural ecological balance to the range. So one component of it is removing excess wild horses and But another part is making sure that the population stabilizes so that you don't have to go back and do it again. And so I think when you talk about, even if there was a shift in focus to the public lands, it's still tied to the humane treatment of the horses themselves. And so I get back to my original question. [00:06:39] Speaker 01: What is it that you are proposing that the agency ran afoul of when it used the word prompt or other things to move quickly but not in an overnight fashion, which it couldn't do? [00:06:51] Speaker 03: Mr. Three things. [00:06:55] Speaker 03: One is that certainly elevating the standard, as we've argued in the brief, that it should be done expeditiously as possible. Second, in terms of the three components that these plans themselves did, one, dealing with initial gathers, second, dealing with fertility control, third, dealing with subsequent gathers, there is a lack of any sideboards within these plans, within these decision records, and that goes to the heart of your question, and that goes to the heart of why the ranchers are here today. [00:07:35] Speaker 01: When you say sideboards, do you mean timeframes that they have to specify timeframes? [00:07:39] Speaker 03: Certainly, as to the initial gathers, yes, there isn't any temporal sideboards at all on that, in terms of the fertility control. [00:07:51] Speaker 01: Do any of these district court cases indicate that the word immediately means the agency must provide a timeframe in their plan? There isn't anything in the what? No, there isn't. And is there anything in the statutory? So are you rooting that reading in the word immediately that there has to be a timeframe in an agency's plan? [00:08:12] Speaker 03: I would submit to you at least, the parameters for one. And that's the fault and that's the fatal flaw in these decision records in that in the briefing that the government has done, they talk about weather issues. They talk about the foaling of when the mares are foaling and giving birth to their animals. They talk about contractor. [00:08:36] Speaker 04: The statute could have required a number, right? [00:08:41] Speaker 03: They could have, yes. [00:08:41] Speaker 04: But it doesn't, right? That's correct. So... [00:08:44] Speaker 04: I am struck by language I know you're familiar with from Loper Bright. To stay out of the discretionary policymaking left to the political branches, judges need only fulfill their obligations under the APA to independently identify and respect delegations of authority, police the outer statutory boundaries of those delegations, and ensure the agencies exercise their discretion consistent with the APA. [00:09:15] Speaker 04: And you're saying, as I understand you, that we should tell the agency you need to set a number. I don't see how that's consistent with the direction that the Supreme Court has given us to leave those kinds of decisions to the political branches. [00:09:32] Speaker 03: Well, in the context of at least in the Culver decision, the the the District Court of the District of Columbia in that particular case said what the government did there, all they did is they issued a plan and said we will do all these actions to meet a thriving natural ecological balance, to deal with the excess, and to say you're going to do that sometimes within 10 years is not lawful. That's why this is such a unique situation and an uncharted territory for this court as to, okay, there must be some sideboards. [00:10:13] Speaker 03: I don't want to sit here, Judge Bennett, and say, by God, you issue a decision record and then it says in two weeks it is. There has to be some standards that must be within the decision record. For example, you just can't build a court build a nice car and it does everything, but you can't put, but you don't give the gas and you don't give the oil so that it, so it can run and do the work. Much like that's what happened here. They put together. [00:10:43] Speaker 01: But the little fish in the stone cabin management plans both indicate that the initial step is to remove the excess wild horses promptly or, you know, it uses language of some type of urgency. And then it has this follow-up. So the 10-year plan contemplates here moving quickly enough, expeditiously, to deal with the excess horses and then roll out the rest of the 10-year plan. Why is that not sufficient for the immediacy standard? [00:11:15] Speaker 03: Simply because if you look at the decision record, if you look at the final EA, they talk about all of these conditions to maximize the discretion to let the government do whatever they want, but they don't put any sideboards around what they do. For example, weather. [00:11:35] Speaker 03: In an environmental assessment document, it would be very appropriate for the government, the sideboard is that the weather is within this time period gives the opportunity for gather. The foaling period, it typically occurs within this period. And what about funding? [00:11:54] Speaker 03: I would submit to you, and that goes to our issue number three, Judge Bennett, that any what we have said in the briefing is off-site things, such as funding. Talk about things that are not even in the act. That clearly is not even in the act. [00:12:12] Speaker 04: Judge Bennett So the agency's job is to comply with the mandate even if Congress hasn't given them the funds to do it? [00:12:25] Speaker 03: Well, I guess then we get – I would submit to you, yes. It's not like they are – it's an unfunded – And so who do we issue the order to? Pardon? [00:12:34] Speaker 04: Do we issue the order to the Congress to appropriate more? [00:12:38] Speaker 03: Well, certainly, at least in this fiscal year, they have appropriated $144 million. So it's not like they haven't appropriated money. year after year to achieve the objectives and issue the decisions that they have. [00:12:51] Speaker 04: Male Speaker 1 But when I look, for example, at what Judge Sanchez was referring to for Little Fish, I see, for example, at ER 129, and this is just one of many statements, while the agency's plan is to promptly remove all excess animals above low AML, it is unlikely that a single gather can achieve this. I mean, you don't quarrel with that statement per se, right? No. But when you have that kind of an overview, which is we have to get down to a particular number, but we don't know exactly how many gathers it's going to take, I mean, doesn't that mean that the agency has to have discretion to be able to do it in a way they think is going to work but consistent with the requirement that they use humane means? [00:13:44] Speaker 03: within the slight discretion that they have. Remember, once the determination is made, which it was made in this case, that triggers, you know, a mandate at that point in time in the act to act. And so I appreciate the struggling that exists in, okay, well, how do you balance that human, humanitarian treatment of animals? [00:14:12] Speaker 03: There's got to be a limit, and that limit can be in creating a standard, an expeditious standard instead of a prompt standard that they're required to act. It can be done by putting sideboards on what initial gather means. I mean, certainly Culver said initial gather doesn't mean sometime in 10 years. [00:14:34] Speaker 01: Are we arguing about the difference between prompt and expeditious? [00:14:38] Speaker 03: Well, certainly. What's the difference? Well, certainly under the definition in the brief, there's an indication that it's a higher level standard upon scrutiny upon which they can act. I mean, in the Western Conservation Protection case, they talked about that there is a trigger associated with this and that they're required to act over all other resources associated with that. And you just can't lay back and just say, but we're just going to wait. [00:15:13] Speaker 01: There needs to be some kind of – But isn't there a separate remedy if the agency falls back and says, let's just wait? I mean, this is an action challenging the plan itself. You could file a different action if the agency isn't moving on the plan, but you haven't done so under a different provision of the APA. Correct. So isn't that – maybe the resort should be to press the agency to actually fulfill – the plan rather than to challenge the plan details itself. [00:15:42] Speaker 03: I hear what you're saying, and there's perhaps, I would say, a remedand or 706-1, but in that context, you have to deal with all the different track standards. In this, we're looking at the 706-1 claim, or excuse me, 706-2 claim on the unlawfulness of the application of of the Wild Horse and Burrow Act itself. And certainly, it's the position of the appellants in this case that there needs to be initial focus there to create a standard. [00:16:16] Speaker 03: Because without any of these standards that we're talking about in issues one, two, and three, moving then to a 7062, you're going to grapple with the same thing, just like in the Western Conservation Protection case, it appropriately went through all of everything we're speaking about here under 706.2, but then defaulted and then applied the 706. It was a 706.1 case and then said it didn't need to do anything, but it didn't reach the core issues of what we're talking about here. [00:16:50] Speaker 04: Counsel, you've exhausted your time. [00:16:52] Speaker 03: Yes, I have. [00:16:53] Speaker 04: I don't have any more questions, but we've taken up a lot of your time with questions, and we'll give you three minutes for rebuttal. [00:16:59] Speaker 03: Thank you. [00:17:00] Speaker 04: Thank you. [00:17:07] Speaker 00: Good morning, Your Honors. It may please the Court. Tamara Rountree for the United States. I'd like to begin with the specificity that plaintiffs contend is required here. It's their position that under the Wild Horses Act, the gather plans are required to identify and put in place a specific temporal limitation on when the initial gathers would occur. Now, plaintiffs don't identify, as the Court has recognized, plaintiffs don't identify any provision in the Act which imposes that kind of specificity on the plans. [00:17:37] Speaker 00: In fact, the Act doesn't address plans, gather plans at all, let alone specify what BLM is required to include in them. And there can be no dispute that the Act does not require that the plans specify a specific amount of time, in essence a deadline, by which the gather and removal actions will occur. [00:17:58] Speaker 01: Ms. Brown, could the – I'm not saying that the agency is required to, but could the agency – identify a time frame in which an initial gather might take place, given weather patterns and other circumstances? Is that something the agency could do? [00:18:15] Speaker 00: Well, Your Honor, I appreciate the question. And I think the court, though, appreciates the difficulty in doing that, and in doing that in a way that's not arbitrary and completely capricious. Because not only does BLM have to account for the undisputed practical obligations realities, on-the-ground realities of gathering and removing wild animals off an open range, but it's also what's required in the statute. So as Judge Bennett pointed out in Section 1333B2A through C, there's quite a list of what BLM has to do. [00:18:48] Speaker 04: So there certainly is counsel, but I think what gives me pause in the case is that although Congress certainly did put in these other things that the agency had to do, they used the phrase immediately remove excess animals from the range. And the Supreme Court has recently said something like we're all textualists now and we go to dictionary definitions or contemporary sources for immediately, and it's hard to reconcile what the agency is doing, maybe because it's the only way they actually can achieve it, with the words in the statute, immediately remove excess animals from the range, because in the way the word immediately is used normally by the Congress, What the agency is doing is not immediately removing excess animals from the range. [00:19:59] Speaker 04: So how do we square the United States and the agency's position with the actual phrase used by the Congress? [00:20:06] Speaker 00: Well, I first would like to begin with we have to be careful when we discuss what BLM does immediately. We're slipping into implementation execution language, which is it's a 7061 claim. The question here is what do the plans say? It's not what has BLM done or whether it will do it or when will it do it. It's what did it say in the plans that it will do. And so the question here is the court has to look at the plans themselves to determine whether BLM reasonably provided that the statute's requirements for immediacy and their instructions for the actual gather and removal would be carried out. [00:20:43] Speaker 00: We can't talk about when BLM actually hit the ground. But to your point about the definition of immediacy, to be honest with you, the court doesn't even have to define it because we're talking about gather plans. not when did the agency get out on the ground. Initially, I thought immediacy, immediate meant immediate, and then I spent time with this case and realized immediacy, or immediately remove, gathers its meaning from the context in which the words reside. Here we look at the statute, and as I said, the statute prescribes clearly indicates that immediately doesn't mean tomorrow, even next week, given all that BLM is required to do by Congress. [00:21:25] Speaker 00: But I'll offer the court two examples of the use of immediate to show you how different the meaning could be. One of which is we're here in the courtroom. Someone walks in and says there's a fire. There are flames down the hallway. Everyone has to move, leave the courtroom immediately. The person who yells it looks at me and says, they can see in my face, but I want to stay here and finish my argument. And they say, no, no, you leave immediately. Our interpretation is I need to get out of there right away, no delay at all. Second scenario, the court gets miffed with me and says, Ms. [00:21:56] Speaker 00: Roundtree, you need to leave immediately. But the context is the rules of occupancy of this building are that anyone who enters the building must take all of their possessions before they leave. [00:22:10] Speaker 00: I understand that, and I believe reasonably that the court means I need to leave, but I need to remove my possessions from the lectern, my possessions from council table, wherever my coat is, remove it, and maybe even slip into the restroom and then leave. And I think that is still in keeping with what the court meant by leave immediately. So as we can see, immediately, oddly enough, escapes specificity, the exact kind of specificity, The plaintiff's claim is required here by the statute. [00:22:44] Speaker 01: When I look at this case, I ponder, what am I trying to decide? Because even if we're having difficulty understanding Congress's intent behind immediately, I'm having a difficult time discerning a difference between promptly and expeditiously. [00:23:02] Speaker 01: Do you see a difference between those two words? Because, again, as you said, we are looking at the plan itself. And so if it has a defect, is it because the word prompt was being used instead of expeditious? [00:23:15] Speaker 01: What do you see as a difference between those two words and whether one imposes an additional requirement? [00:23:22] Speaker 00: I think not, Your Honor. And I believe Your Honor actually spoke to this a little bit. And I'll offer this to the court. I didn't even want to offer a definition of immediate because I don't think the court needs to define it here. It just needs to look at the plans and say, Did BLM say it was going to do what Congress said it needed to do? And plaintiffs here, for example, don't dispute that the plan set out that they'll provide for the statutes and requirements for the way in which the gatherer will be done. All of the A through C, the subparagraphs A through C, all of that will be done. [00:23:53] Speaker 00: So the question is, did it provide for, in a reasonable way, providing for the immediacy that Congress required in the plans? Again, did the plan say, we will do it immediately? So I think a possible definition or explanation could be is that removal could be immediate or prompt as immediately or promptly or expeditiously choose your word as possible, taking into account all that is required for gather and removal under the statute. [00:24:28] Speaker 00: So I don't think, long way of saying, I don't think the words, as long as they convey urgency, It doesn't matter if you pick prompt, immediate, or expeditious, for example. [00:24:38] Speaker 01: And really the second half of that sentence would almost be surplus because you have to take into account those other requirements of the statute anyway. [00:24:46] Speaker 00: Correct. [00:24:46] Speaker 01: I mean, you'd probably infer it within the language of the word anyway. [00:24:49] Speaker 00: Indeed. Indeed. And that's required under principles of statutory interpretation, or it's required by this statute that we look beyond the words. [00:24:58] Speaker 02: Sorry. You said convey urgency. You think? if the plan conveys urgency, then it satisfies the immediacy requirement of the statute? [00:25:09] Speaker 00: I believe if it recognizes that Congress has said we are to immediately remove, and that is what this plan is intended to do, then it has satisfied the requirement. Because ultimately, a plan is stuck with words. We're not talking about implementation. We're not talking about boots, hooves on the ground, feet, feet. [00:25:29] Speaker 00: We're talking about what the plan says. So, yes, that's correct, Your Honor. It's whether the plans actually speak to the emergency. And I'll offer the court Western Rangeland and Culver, I believe, in which BLM actually said, honestly admitted to the public, we are going to need six to ten. I think it was six to ten years in Western Rangeland, and it was ten years in Culver that BLM said, we need the full ten years. to do the initial gather. [00:26:02] Speaker 00: That's not what's said here. And I think, Judge Sanchez, you're quite on the money. There's a specific breakdown in the timing. The 10 years is for the latter, the population control and possible maintenance gathers after the initial gathers occur. But the initial gather is what's to occur immediately. And both of the plans speak to that. [00:26:21] Speaker 01: What is the timeframe for an initial gather just, you know, in a ballpark? [00:26:28] Speaker 00: I talked to the agency about that, and it's just too much to – there are too many variables to say. [00:26:33] Speaker 01: But doesn't that kind of lend credence to what the rangers are saying? If you can't tell me what an initial gather time frame might be, how do I know that this case is very different than Western Rangeland, which was candid in saying it takes 10 years to even do an initial gather, and that's too long? [00:26:52] Speaker 00: I thought you were speaking in general. So I think BLM, if they were to zero in on a specific case, I thought you meant – No, for this case. Right. And I most certainly can't speak to that, but I will offer, for example, one of the things that if the agency people perhaps were hearing could – were forced to give you some kind of specificity, which, again, is not required in the statute. [00:27:17] Speaker 00: One of the things we have to account for is, for example – The statute requires that BLM find old, lame, and sick horses. I offer the court one of the first steps BLM has to do before it can remove any horse is get personnel out there and for the stone cabin gather plan, for example, there are over 1,000 horses currently in that herd. That means go through over 1,000 horses just to identify those that are lame or sick or old. And so there could be a time frame, and BLM probably could come up with numbers. [00:27:52] Speaker 00: The degree to which those numbers are hard and fast, again, not required, perhaps would vary, but certainly could come up with numbers. But the point is BLM then could get hit with a lawsuit which says that number was pretty arbitrary. But in any instance, numbers are needed. [00:28:11] Speaker 01: What I take the ranger's point is, look, we want to see what the ballpark numbers might be. Would it be through this action where you challenge the plan and the agency's response is, no, we don't have to give you specificity? And if you do an enforcement plan, would the agency then have to give numbers or would you say, well, we're doing the best we can? At what point does the agency, if ever, have to give numbers in order to try to fulfill its obligations? [00:28:39] Speaker 00: Well, to be honest with you, and please don't be angry with me if it's sounding like a broken record, it's just not required by the statute. It would be a different thing if Congress decides, you know what, we played with language about immediate removal. We're going to give you numbers now, or we're going to give you a specific time frame. [00:28:54] Speaker 04: So in your view, and I think going to what the ranchers say and to one of Judge Sanchez's questions, I'm looking, for example, at ER-130 for the little fish plan. [00:29:07] Speaker 04: The management objective for the Little Fish Lake JMA is to achieve low AML as immediately as possible. Indeed. So it's like we're going to try to do it immediately, but we don't know how long it's going to take. And so immediately as possible could mean almost anything. [00:29:25] Speaker 00: Well, I wouldn't want to offer that extreme. And it may be the circumstance that when the plan was written, and that's the time frame we're looking at, when it was written and approved, timing could have been different. Weather conditions, helicopter pilots' availability, all sorts of circumstances could have been different, and it could have happened under a quicker time frame. We can't speak to that now. But the question was, did BLM abide by what Congress required? [00:29:59] Speaker 00: And it's not much in terms of what a gatherer plan, and again, I go back to the fact that the The Act doesn't speak to plans at all. So we're kind of swimming in uncharted waters of trying to define what BLM was required to say about gather plans and specificity of timing when Congress doesn't address any of that. [00:30:24] Speaker 00: I think we've touched upon most of the major points. [00:30:30] Speaker 00: And Judge Sanchez, initially you said something about the 10 years, and I thought perhaps you thought BLM contemplated that the initial gatherers would take 10 years. And I spoke to that, and I think you understood that the record is clear. The 10 years is part of an overall management plan. The 10 years is for the other, I'll call them future-oriented, which is population control. And the maintenance gatherers that would occur after the initial gatherers took place and AML was achieved. [00:31:02] Speaker 00: Unless your honors have any additional questions, I will just end by saying those components, those elements of the gather plan that were written and approved by BLM are they don't adopt and identify any latency periods. They specifically require what it is that Congress sought and should be upheld, and the district court's judgment should be affirmed. [00:31:33] Speaker 04: Thank you, Chancellor. [00:31:41] Speaker 03: Thank you, Judge Bennett, for giving me a couple more minutes, but I will be very brief. As you just heard and as the briefing of the government demonstrates, There is nothing. So I have two things to say to you. In my left hand, I'm making it hard on you, and the ranchers don't intend to do that, but these are very important uncharted waters that we ask this Court to provide some parameters on. [00:32:17] Speaker 03: In my right hand, you can do this very easy. The Culver case, everything that you just heard from counsel, the Culver case is flat on in saying that simply saying you're going to do something in 10 years does not conform to the Wild Horse and Burrow Act. And so if you easy way and say and just go the Culver route, that is the way to go. And then it would get sent back down to the agency to deal with these parameters that we're dealing with in the left hand. [00:32:52] Speaker 03: So I submit to you that you can decide this favorably in providing certainty for the public land as well as the horses by reversing this and remanding this down to the district court for a remedy phase. Thank you. All right. [00:33:10] Speaker 04: We thank counsel for their arguments, and the case just argued is submitted.