The Wild Free-Roaming Horses and Burros Act of 1971.

• Author: Iraola, Roberto

1. INTRODUCTION II. OVERVIEW III. REMOVALS AND APPROPRIATE MANAGEMENT LEVELS A. Administrative Challenges to Removals B. Judicial Review of Removal Authority C. Thriving Ecological Balance IV. OWNERSHIP CLAIMS, STRAYING HORSES, AND CONSTITUTIONAL TAKINGS A. Ownership Determinations B. The Statutory Duty to Remove Stray Horses C. The Fifth Amendment's Takings Clause V. ADOPTION A Applications and PMCAs B. Transfer of Title VI. CRIMINAL PROSECUTIONS A. Vagueness and Overbreadth B. Wild Horses and Property interests Under Criminal Statutes VII. CONCLUSION I. INTRODUCTION

   In the United States, wild free-roaming homes and burros on public lands are deemed "living symbols of the historic pioneer spirit of the West and as such are considered a national aesthetic resource." (1) At one time numbering in the millions, by the 1960s, the horse population had declined to seventeen thousand. (2) In 1971, concerned with this decline and recognizing the need for their protection, Congress enacted the Wild and Free-Roaming Homes and Burros Act (WFRHBA or Act). (3)

   Under the WFRHBA and its implementing regulations, the Departments of the Interior and Agriculture manage and protect wild and free-roaming homes and burros on public lands. (4) Over the course of the past thirty years, the Act has been the subject of litigation with respect to both the management of these animals and their protection. (5) This article is intended to provide a general overview of the developing judicial and administrative case law in these areas. Since the overwhelming majority of wild homes and burros live on lands managed by the Department of the Interior, (6) the discussion about developing administrative law focuses solely on rulings by the Department of the Interior's Board of Land Appeals (IBLA or Board), which has jurisdiction over appeals challenging management and compliance determinations under the Act. (7)

   The article is divided into five parts. First, by way of background, the article provides an overview of the Act. The article proceeds with an analysis of the cases involving decisions to remove wild homes and burros from public lands, including the question of the appropriate management levels for these animals. It then discusses the government's responsibilities with respect to straying horses and the question of whether the management of these homes may effect a taking of private property under the Fifth Amendment. It continues by considering cases discussing adoption of wild homes. Finally, the article analyzes the case law on the Act's criminal provisions.

2. OVERVIEW

   In 1971, under legislative authority granted to it under the Property Clause, (8) Congress passed the WFRHBA to protect wild free-roaming homes and burros on public lands from "capture, branding, harassment, or death." (9) As amended, (10) the Act brings "[a]ll wild free-roaming homes and burros" under the jurisdiction of the Department of the Interior, through the Bureau of Land Management (BLM), and the Department of Agriculture, through the Forest Service (FS), (11) "for the purpose of management and protection." (12)

   Under the WFRHBA, the Secretary (13) is authorized and directed to protect wild free-roaming horses and burros "as components of the public lands." (14) In doing so, the Secretary may "designate and maintain specific ranges on public lands as sanctuaries for their protection and preservation" (15) after consultation with state wildlife agencies and advisory boards established under the Act. (16) Through the land use planning process, BLM in herd management areas, (17) and FS in territories, (18) manage wild horses and burros "in a manner that is designed to achieve and maintain a thriving natural ecological balance on the public lands." (19) All management activities are to be conducted "at the minimal feasible level" and in consultation with state wildlife agencies. (20)

   A person who claims ownership of a burro or horse on "public lands shall be entitled to recover it only if recovery is permissible under the branding and estray laws of the state in which the animal is found." (21) If a wild burro or horse strays from public lands onto privately owned land, the owner of such land may inform an agent of the Secretary or a U.S. Marshall "who shall arrange to have the animals removed." (22) The Secretary also must maintain current inventories of wild and free-roaming homes and burros on public lands to determine whether an overpopulation exists and to assist him in arriving at "appropriate management levels." (23) In addition to this inventory, the Secretary may consider various sources to determine whether an overpopulation exists in a given area, including the current inventory of federal public lands, land-use plans, and court-ordered environmental impact statements. (24)

   If the Secretary concludes that an overpopulation exists and that "action is necessary to remove excess animals, he shall immediately remove excess animals (25) from the range so as to achieve appropriate management levels." (26) With respect to wild homes and burros that are removed, the Secretary is authorized to destroy "old, sick, or lame" animals in the most humane manner possible. (27) He may then attempt to place healthy excess animals under "private maintenance and care." (28) To the extent that healthy animals have been removed are not in demand for adoption, they are also subject to destruction in the most "humane and cost efficient manner possible." (29)

   Private maintenance is accomplished through an adoption program, which contemplates adopters who are both "qualified individuals," and also persons who "can assure humane treatment and care (including proper transportation, feeding, and handling)" of these animals. (30) Generally, no more than four animals may be adopted per year. (31) Upon application, an adopter will receive title to a wild horse or burro one year after the transfer if the Secretary determines that certain conditions have been met. (32) If animals removed from the range are not adopted, they are then placed in government long-term holding facilities. (33) Under a 2004 amendment to the Act, excess animals over ten years old or those that have been unsuccessfully offered for adoption at least three times, may be sold "without limitation." (34)

   Finally, the Act contains criminal penalty provisions. (35) Specifically, criminal penalties may be imposed under the WFRHBA for: 1) willfully removing or attempting to remove wild free-roaming horses or burros from public lands; 2) converting them to private use; 3) maliciously harassing such animals, or causing their death; 4) processing, or permitting to be processed, the remains of these animals into commercial products except as provided for in the case of animals which may be sold; 5) selling, directly or indirectly, any such animal that is maintained in private or leased land; or, 6) willfully violating any regulation promulgated under the Act. (36) The maximum penalty under the Act or its implementing regulations is a $2,000 fine and one year imprisonment. (37) Under the Criminal Fine Improvements Act of 1987, (38) however, the maximum amount of a fine for a misdemeanor offense was increased to $100,000 and $200,000 for an individual and a corporation, respectively. (39)

3. REMOVALS AND APPROPRIATE MANAGEMENT LEVELS

   The management of wild horses under the Act has resulted in the litigation of a number of issues. For example, what is the scope of administrative and judicial review of actions concerning removal of wild horses and burros from public lands? Can removals take place prior to the preparation of an environmental impact statement under the National Environmental Policy Act? (40) Is the appropriate management level for a herd of wild horses in a given area of public lands that level that existed at the time of the passage of the Act? The cases addressing these questions are discussed below.

   1. Administrative Challenges to Removals

      Wild horse and burro management aims to "maintain a thriving natural ecological balance among wild horse populations, wildlife, livestock, and vegetation and to protect the range from the deterioration associated with overpopulation." (41) This management takes place within herd management areas, or the broader "herd areas," which the regulations define as the "geographic area identified as having been used by a herd as its habitat in 1971." (42) The applicable test, in terms of the level of horse populations, "is whether such levels will achieve and maintain a thriving ecological balance on the public lands." (43)

      Removal determinations "must be based on research and analysis, and on monitoring programs that include studies of grazing utilization, trends in range condition, actual use, and climatic factors," (44) Removal is warranted where "the record establishes current resource damage or a significant threat of resource damage." (45) When removal is based on monitoring data, the party challenging the action "bears the burden of demonstrating, by a preponderance of the evidence, that BLM committed an error in ascertaining, collecting, or interpreting the data upon which it relie[d] in its decision." (46)

      Under Department of the Interior regulations, a removal decision by an authorized BLM officer is "effective upon issuance or on a date established in the decision." (47) On numerous occasions, the Board has confronted administrative challenges to BLM removal determinations and, applying the legal principles set forth above, affirmed those determinations. (48)

   2. Judicial Review of Removal Authority

      Not long after passage of the Act, the scope of the Secretary's authority to remove wild horses was challenged in court. In American Horse Protection Ass'n, Inc. v. Frizzell, (49) to alleviate an overgrazing problem in the Stone Cabin Valley, an area comprising approximately 600 square miles located in central Nevada, state and federal officials agreed on a plan to...