[00:00:00] Speaker 02:
You may begin.

[00:00:18] Speaker 04:
Good morning.

[00:00:20] Speaker 02:
Morning.

[00:00:21] Speaker 05:
May it please the court.

[00:00:22] Speaker 05:
My name is Alan Schroeder.

[00:00:24] Speaker 05:
I represent the ranchers and the appellants in this matter before the court this morning.

[00:00:31] Speaker 05:
We get to talk about wild horses, the American icon of the West.

[00:00:37] Speaker 05:
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.

[00:00:50] Speaker 05:
The federal government issued decision records

[00:00:53] Speaker 05:
that were seemingly going to provide a plan to fix that problem.

[00:01:00] Speaker 05:
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 05:
The district court agreed and gave the government a pass.

[00:01:22] Speaker 05:
We're now before the court today for this court to provide the needed substance.

[00:01:29] Speaker 05:
So how do we get there?

[00:01:31] Speaker 05:
It's apparent we need to get there, because however odd it is that the Wild Horse and Borough 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 1333 in the Wild Horse and Borough Act.

[00:02:04] Speaker 05:
One can get some context for that by looking at the Act.

[00:02:08] Speaker 05:
The Act, when it was enacted in 1971, was remarkably unanimously passed by Congress.

[00:02:17] Speaker 05:
It was unanimously passed because there was a problem with the killing and the harassment of the wild horses, even some time for sport.

[00:02:30] Speaker 05:
And so the Act was overwhelmingly

[00:02:32] Speaker 05:
passed by Congress and yet it was overwhelmingly successful in curing the problem.

[00:02:41] Speaker 05:
Just a short seven years later Congress had to take another look and they took another look in enacting the Multiple Use Sustain Yield Act and additionally with that these amendments to the Wild Horse and Borough Act that brought before you today

[00:02:58] Speaker 05:
the main portion of the Wild Horse and Burro Act as amended in 1978, that's section 1333B2.

[00:03:10] Speaker 05:
That is really the focus here today.

[00:03:14] Speaker 05:
What's important about what happened in 1978?

[00:03:17] Speaker 05:
Mr. Schroeder, do you mind if I interrupt?

[00:03:20] Speaker 03:
Sure.

[00:03:20] Speaker 03:
So if we're looking to the text of the statute for immediately, would you agree that it can't happen overnight?

[00:03:29] Speaker 03:
So there are certain definitions of immediate that would suggest something overnight or right away.

[00:03:34] Speaker 03:
And there are practical realities behind what the agency proposes to do and how to do it over a 10-year span.

[00:03:42] Speaker 03:
So give me your sense of what immediate should mean in the context of these practical realities.

[00:03:49] Speaker 05:
Well, certainly it means, as what the Culver decision said in the DC Circuit in 2022, that it should mean that after they have made the requisite determination under the Act, that's the focus.

[00:04:07] Speaker 05:
That if there's a determination of excess,

[00:04:10] Speaker 05:
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.

[00:04:20] Speaker 02:
But I mean, when we look at the statute, it certainly does use the word immediate.

[00:04:26] Speaker 02:
There's no question about that.

[00:04:28] Speaker 02:
But then the statute follows up the use of that word with a series of required actions

[00:04:36] Speaker 02:
which by definition can't be done immediately.

[00:04:40] Speaker 02:
The secretary has to order old sick and lame animals to be destroyed.

[00:04:45] Speaker 02:
The secretary has to set up a plan where people can adopt them.

[00:04:50] Speaker 02:
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 02:
I mean, these things can't all be done like yesterday.

[00:05:04] Speaker 05:
I would agree with that.

[00:05:05] Speaker 05:
And it's important to know that even Judge Ginsburg, when she was on the D.C.

[00:05:11] Speaker 05:
Circuit and issued the 1982 opinion in the American Horse Protection, she grappled with this issue.

[00:05:22] Speaker 05:
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.

[00:05:33] Speaker 05:
The shift in focus was from the protection of the horse

[00:05:38] Speaker 05:
to the protection of the underlying public lands.

[00:05:42] Speaker 05:
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.

[00:06:01] Speaker 05:
And so really, when you get into that, the... Aren't those two things related?

[00:06:06] Speaker 03:
I mean, part of the statutory language is to restore a thriving natural ecological balance to the range.

[00:06:13] Speaker 03:
So one component of it is removing excess wild horses.

[00:06:19] Speaker 03:
But another part is making sure that the population stabilizes so that you don't have to go back and do it again.

[00:06:25] Speaker 03:
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.

[00:06:36] Speaker 03:
And so I get back to my original question.

[00:06:39] Speaker 03:
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?

[00:06:53] Speaker 05:
Three things.

[00:06:55] Speaker 05:
One is that certainly elevating the standard, as we've argued in the brief, that it should be done expeditiously as possible.

[00:07:04] Speaker 05:
Second, in terms of the three components that these plans themselves did,

[00:07:12] Speaker 05:
One, dealing with initial gathers, second, dealing with fertility control, third, dealing with subsequent gathers.

[00:07:20] Speaker 05:
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 03:
When you say sideboards, do you mean timeframes?

[00:07:38] Speaker 05:
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 03:
Do any of these district court cases indicate that the word immediately means the agency must provide a time frame in their plan?

[00:08:00] Speaker 03:
There isn't anything in the what?

[00:08:02] Speaker 03:
No.

[00:08:03] Speaker 03:
There isn't.

[00:08:03] Speaker 03:
Is there anything in the statutory?

[00:08:04] Speaker 03:
So are you rooting that reading in the word immediately that there has to be a time frame in an agency's plan?

[00:08:12] Speaker 05:
I would submit to you at least the parameters for one.

[00:08:16] Speaker 05:
And that's the fault and that's the fatal flaw in these decision records in that

[00:08:22] Speaker 05:
In the briefing that the government has done, they talk about weather issues.

[00:08:26] Speaker 05:
They talk about the foaling of when the mayors are foaling and giving birth to their animals.

[00:08:33] Speaker 05:
They talk about contractor.

[00:08:36] Speaker 02:
The statute could have required a number, right?

[00:08:41] Speaker 02:
They could have, yes.

[00:08:42] Speaker 02:
But it doesn't, right?

[00:08:42] Speaker 02:
That's correct.

[00:08:43] Speaker 02:
So I am struck by language I know you're familiar with from Loper Bright.

[00:08:52] Speaker 02:
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

[00:09:04] Speaker 02:
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 02:
And you're saying, as I understand you, that we should tell the agency you need to set a number.

[00:09:23] Speaker 02:
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.

[00:09:33] Speaker 05:
In the context of, at least in the Culver decision, 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 gonna do that sometimes within 10 years is not lawful.

[00:10:02] Speaker 05:
That's why this is such a unique situation and an uncharted territory for this court is to, okay, there must be some sideboards.

[00:10:13] Speaker 05:
I don't want to sit here, Judge Bennett, and say, by God, you issue a decision record and then

[00:10:19] Speaker 05:
It says in two weeks it is.

[00:10:21] Speaker 05:
There has to be some standards that must be within the decision record.

[00:10:26] Speaker 05:
For example, you just can't build a nice car and it does everything, but you don't give the gas and you don't give the oil so it can run and do the work.

[00:10:39] Speaker 05:
Much like that's what happened here.

[00:10:41] Speaker 03:
They put together a... But the little fish in the stone cabin management plans both

[00:10:46] Speaker 03:
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 you know quickly enough expeditiously to deal with the excess horses and then and you know roll out the rest of the 10-year plan.

[00:11:12] Speaker 03:
Why is that not sufficient for the immediacy standard?

[00:11:15] Speaker 05:
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.

[00:11:32] Speaker 05:
For example, weather.

[00:11:34] Speaker 05:
In an environmental assessment document, it would be very appropriate for the government.

[00:11:40] Speaker 05:
The sideboard is that the weather is, within this time period, gives the opportunity for gather.

[00:11:48] Speaker 05:
The foaling period, it typically occurs within this period.

[00:11:52] Speaker 02:
And what about funding?

[00:11:54] Speaker 05:
Well, I would submit to you, and that goes to our issue, issue number three, Judge Bennett, that any what we have said in the briefing is outside things, such as funding.

[00:12:07] Speaker 05:
Talk about things that are not even in the act.

[00:12:10] Speaker 05:
That clearly is not even in the act.

[00:12:13] Speaker 02:
So the agency's job

[00:12:16] Speaker 02:
is to comply with the mandate even if Congress hasn't given them the funds to do it?

[00:12:25] Speaker 05:
Well, I guess then we get it.

[00:12:27] Speaker 05:
I would submit to you, yes.

[00:12:29] Speaker 05:
It's not like they are unfunded.

[00:12:31] Speaker 02:
And so who do we issue the order to?

[00:12:33] Speaker 02:
Pardon?

[00:12:34] Speaker 02:
Do we issue the order to the Congress to appropriate more?

[00:12:38] Speaker 05:
Well, certainly, at least in this fiscal year, they have appropriated $144 million.

[00:12:44] Speaker 05:
So it's not like they haven't appropriated money year after year to achieve the objectives and issue the decisions that they have.

[00:12:52] Speaker 02:
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,

[00:13:04] Speaker 02:
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.

[00:13:13] Speaker 02:
I mean, you don't quarrel with that statement per se, right?

[00:13:17] Speaker 02:
No.

[00:13:18] Speaker 02:
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?

[00:13:42] Speaker 05:
Well,

[00:13:44] Speaker 05:
within the slight discretion that they have.

[00:13:46] Speaker 05:
Remember, once the determination is made, which it was made in this case, that triggers

[00:13:53] Speaker 05:
a mandate at that point in time in the act to act.

[00:13:58] Speaker 05:
And so I appreciate that the struggling that exists in, OK, well, how do you balance that humanitarian treatment of animals?

[00:14:12] Speaker 05:
But there's got to be a limit.

[00:14:14] Speaker 05:
And that limit can be in creating a standard

[00:14:17] Speaker 05:
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.

[00:14:28] Speaker 05:
I mean, certainly Culver said initial gather doesn't mean some time in 10 years.

[00:14:34] Speaker 03:
Are we arguing about the difference between prompt and expeditious?

[00:14:38] Speaker 05:
What's the difference?

[00:14:39] Speaker 05:
Well, certainly under the definition in the brief, there's an indication that it's a higher level standard on scrutiny upon which they can act.

[00:14:50] Speaker 05:
I mean, in the Western Conservation Protection Case, they talked about that

[00:14:58] Speaker 05:
You know there is a trigger associated with this and that they're required to act over all other resources associated with that and you just just can't lay back and just say but we're just going to wait There needs to be some isn't there a separate remedy if the agency falls back and says let's just wait I mean you this is an action challenging the plan itself

[00:15:22] Speaker 03:
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.

[00:15:29] Speaker 03:
Correct.

[00:15:29] Speaker 03:
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.

[00:15:41] Speaker 05:
Hear what you're saying and there's there's an a perhaps.

[00:15:46] Speaker 05:
I would say a remodan or 706 7061 but in that context you have to deal with all the different track standards in this we're looking at the 7061 claim or excuse me a 7062 claim on the the unlawfulness of the application of the wild horse and burrow act itself and certainly

[00:16:08] Speaker 05:
it's the position of the appellants in this case that there needs to be initial focus there to create a standard 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.

[00:16:31] Speaker 05:
It appropriately went through

[00:16:33] Speaker 05:
of everything we're speaking about here under 7062, but then defaulted and then applied the 706.

[00:16:41] Speaker 05:
It was a 7061 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 02:
What is this?

[00:16:51] Speaker 02:
You've exhausted your time.

[00:16:52] Speaker 02:
Yes, I have.

[00:16:53] Speaker 02:
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 02:
Thank you, thank you.

[00:17:07] Speaker 00:
Good morning, Your Honors, and may it please the Court, Tamara Rountree for the United States.

[00:17:10] Speaker 00:
I'd like to begin with the specificity that plaintiffs contend is required here.

[00:17:15] Speaker 00:
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.

[00:17:27] Speaker 00:
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.

[00:17:45] Speaker 00:
And there can be no dispute that the Act does not require that the plan specify a specific amount of time, in essence a deadline, by which the gather and removal actions will occur.

[00:17:58] Speaker 03:
Ms.

[00:17:58] Speaker 03:
Brown, could the, I'm not saying that the agency is required to, but could the agency identify a timeframe in which an initial gather might take place given weather patterns and other circumstances?

[00:18:14] Speaker 03:
Is that something the agency could do?

[00:18:15] Speaker 00:
Well, Your Honor, I appreciate the question.

[00:18:18] Speaker 00:
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.

[00:18:26] Speaker 00:
Because not only does BLM have to account for the undisputed practical realities, on-the-ground realities of gathering and removing wild animals off an open range,

[00:18:36] Speaker 00:
But it's also what's required in the statute.

[00:18:40] Speaker 00:
So as Judge Bennett pointed out in section 1333 B to A through C, there's quite a list of what BLM has to do.

[00:18:48] Speaker 02:
So there certainly is counsel.

[00:18:51] Speaker 02:
But I think what gives me pause in the case is that

[00:18:59] Speaker 02:
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.

[00:19:15] Speaker 02:
And the Supreme Court has recently said something like, we're all textualists now.

[00:19:22] Speaker 02:
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.

[00:19:41] Speaker 02:
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 02:
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.

[00:20:11] Speaker 00:
We're slipping into implementation execution language, which is 70, it's a 7061 claim.

[00:20:17] Speaker 00:
The question here is what do the plans say?

[00:20:19] Speaker 00:
It's not what has BLM done or whether it will do it or when will it do it.

[00:20:24] Speaker 00:
It's what did it say in the plans that it will do.

[00:20:28] Speaker 00:
And so the question here is the court has to look at the plans themselves to determine whether BLM reasonably provided

[00:20:35] Speaker 00:
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.

[00:20:47] Speaker 00:
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.

[00:20:59] Speaker 00:
I thought immediacy, immediate meant immediate.

[00:21:02] Speaker 00:
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.

[00:21:12] Speaker 00:
Here we look at the statute.

[00:21:15] Speaker 00:
And as I said, the statute 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.

[00:21:31] Speaker 00:
One of which is we're here in the courtroom.

[00:21:33] Speaker 00:
Someone walks in and says there's a fire.

[00:21:35] Speaker 00:
There are flames down the hallway.

[00:21:36] Speaker 00:
Everyone has to leave the courtroom immediately.

[00:21:40] Speaker 00:
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.

[00:21:45] Speaker 00:
And they say, no, no, you leave immediately.

[00:21:49] Speaker 00:
Our interpretation is, I need to get out of there right away, no delay at all.

[00:21:53] Speaker 00:
Second scenario, the court gets miffed with me.

[00:21:56] Speaker 00:
It says, Ms.

[00:21:56] Speaker 00:
Rountree, you need to leave immediately.

[00:21:59] Speaker 00:
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.

[00:22:09] 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.

[00:22:25] Speaker 00:
And I think that is still in keeping with what the court meant by leave immediately.

[00:22:30] Speaker 00:
So as we can see, immediately

[00:22:34] Speaker 00:
oddly enough, escapes specificity, the exact kind of specificity that plaintiff's claim is required here by the statute.

[00:22:43] Speaker 03:
When I look at this case, I ponder, what am I trying to decide?

[00:22:50] Speaker 03:
Because even if we're having difficulty understanding Congress's intent behind immediately,

[00:22:55] Speaker 03:
I'm having a difficult time discerning a difference between promptly and expeditiously 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 is What what do you see as a difference between those?

[00:23:19] Speaker 03:
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

[00:23:26] Speaker 00:
spoke to this a little bit.

[00:23:28] Speaker 00:
And I'll offer this to the court.

[00:23:30] Speaker 00:
I didn't even want to offer a definitive immediate, because I don't think the court needs to define it here.

[00:23:35] Speaker 00:
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?

[00:23:40] Speaker 00:
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 gather will be done.

[00:23:50] Speaker 00:
all of the A through C, the subparagraphs A through C, all of that will be done.

[00:23:54] Speaker 00:
So the question is, did it provide for in a reasonable way, providing for the immediacy that Congress required in the plans?

[00:24:02] Speaker 00:
Again, do the plans say, we will do it immediately?

[00:24:09] Speaker 00:
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 03:
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 03:
We would probably infer it within the language of the word anyway.

[00:24:49] Speaker 00:
Indeed, indeed.

[00:24:50] Speaker 00:
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 01:
You said convey urgency.

[00:25:01] Speaker 01:
You think if the plan conveys urgency,

[00:25:05] Speaker 01:
then it satisfies the immediacy requirement of the statute?

[00:25:09] Speaker 00:
I believe if it recognizes that Congress says we are to immediately remove, and that is what this plan is intended to do, then it has satisfied the requirement.

[00:25:19] Speaker 00:
Because ultimately, a plan is stuck with words.

[00:25:22] Speaker 00:
Again, we're not talking about implementation.

[00:25:24] Speaker 00:
We're not talking about boots on the ground feet.

[00:25:29] Speaker 00:
We're talking about what the plan says.

[00:25:32] Speaker 00:
So yes,

[00:25:33] Speaker 00:
That's correct, Your Honor.

[00:25:34] Speaker 00:
It's whether the plans actually speak to the emergency.

[00:25:38] Speaker 00:
And I'll offer the court Western Rangeland and Culver, I believe, in which BLM actually said,

[00:25:47] Speaker 00:
honestly admitted to the public, we are going to need six to 10, I think it was six to 10 years in Western Rangeland, and it was 10 years in Culver, that BLM said we need the full 10 years to do the initial gather.

[00:26:02] Speaker 00:
That's not what's said here.

[00:26:03] Speaker 00:
And I think Judge Santos, you're put on the money, there's a specific breakdown of the timing.

[00:26:08] Speaker 00:
The 10 years is for the latter, the population control and possible maintenance gathers after the initial gathers occur.

[00:26:16] Speaker 00:
but the initial gather is what's to occur immediately, and both of the plans speak to that.

[00:26:21] Speaker 03:
What is the time frame for an initial gather just in a ballpark?

[00:26:26] Speaker 00:
I talked to the agency about that, and it's just too much to, there are too many variables to say.

[00:26:34] Speaker 03:
But doesn't that kind of lend credence to what the ranchers are saying, is if you can't tell me what an initial gather time frame might be,

[00:26:41] Speaker 03:
How do I know that this case is very different than Western rangeland which?

[00:26:47] Speaker 00:
Was candid in saying it takes ten years to even do an initial gathering that's too long I thought you were speaking in general, so I think BLM if they were to zero went on a specific case I thought you meant No for this case right um and 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 could

[00:27:11] Speaker 00:
We're forced to give you some kind of specificity, which again is not required in the statute.

[00:27:16] Speaker 00:
One of the things we have to account for is, for example, the statute requires that BLM find an old, lame, and sick horse.

[00:27:24] Speaker 00:
I offer the court one of the first steps BLM has to do before it can remove any horse is get personnel out there.

[00:27:31] Speaker 00:
And for the stone cabin gather plan, for example,

[00:27:35] Speaker 00:
There are over 1,000 horses currently in that herd.

[00:27:39] Speaker 00:
That means go through over 1,000 horses just to identify those that are lame or sick.

[00:27:44] Speaker 00:
or old, and so there could be a timeframe, 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 I'm certain they 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 aren't needed.

[00:28:10] Speaker 03:
What I take the ranger's point is, look,

[00:28:15] Speaker 03:
We want to see what the ballpark numbers might be.

[00:28:18] Speaker 03:
Would it be through this action where you challenge the plan and the agency's responses?

[00:28:23] Speaker 03:
No, we don't have to give you specificity.

[00:28:25] Speaker 03:
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?

[00:28:32] Speaker 03:
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 sounding like a broken record, it's just not required by the statute.

[00:28:45] Speaker 00:
It would be a different thing if Congress decides, you know what, we played with language about immediate removal.

[00:28:51] Speaker 00:
We're going to give you numbers now, or we're going to give you specific timeframes.

[00:28:54] Speaker 02:
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.

[00:29:06] Speaker 02:
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

[00:29:18] Speaker 02:
immediately but we don't know how long it's going to take and so immediately as possible could like mean almost anything.

[00:29:25] Speaker 00:
Well I wouldn't want to offer that extreme and there may be 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

[00:29:37] Speaker 00:
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.

[00:29:52] Speaker 00:
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 gather plan.

[00:30:02] Speaker 00:
And again, I go back to the fact that the Act doesn't speak to plans at all.

[00:30:07] Speaker 00:
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 gathers would take 10 years, and I spoke to that, and I think you understood that the record is clear.

[00:30:43] Speaker 00:
The 10 years is part of an overall management plan.

[00:30:47] Speaker 00:
The 10 years is for the other, I'll call them future-oriented, which is population control, and the maintenance gathers that would occur after the initial gathers

[00:30:58] Speaker 00:
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,

[00:31:17] Speaker 00:
that were written and approved by BLM are they don't adopt and identify any latency periods.

[00:31:25] Speaker 00:
They specifically require what it is that Congress sought and should be upheld, and the district court's judgment should be affirmed.

[00:31:34] Speaker 02:
Thank you, counsel.

[00:31:41] Speaker 04:
Thank you, Judge Pennant, for giving me.

[00:31:43] Speaker 05:
It should be three.

[00:31:46] Speaker 05:
Sorry.

[00:31:46] Speaker 05:
Thank you 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 I have two things to say to you in my left hand.

[00:32:03] Speaker 05:
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 05:
In my right hand, you can do this very easy.

[00:32:21] Speaker 05:
The Culver case, everything that you just heard from counsel,

[00:32:27] Speaker 05:
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.

[00:32:37] Speaker 05:
And so if you easy way and say and just go the Culver route,

[00:32:43] Speaker 05:
That is the way to go.

[00:32:44] Speaker 05:
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 05:
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 remanning this down to the district court for a remedy phase.

[00:33:09] Speaker 05:
Thank you.

[00:33:10] Speaker 02:
Alright, we thank counsel for their arguments and the case just argued is submitted.