                                                            FILED
                                               United States Court of Appeals
                                                       Tenth Circuit

                                                    October 11, 2016
                                 PUBLISH           Elisabeth A. Shumaker
                                                       Clerk of Court
                 UNITED STATES COURT OF APPEALS

                              TENTH CIRCUIT



STATE OF WYOMING,

      Petitioner-Appellant,
v.                                            No. 15-8041
UNITED STATES DEPARTMENT
OF THE INTERIOR; SALLY
JEWELL, in her official capacity as
Secretary of the Interior; UNITED
STATES BUREAU OF LAND
MANAGEMENT; and NEIL
KORNZE, in his official capacity as
Director of the Bureau of Land
Management,

       Respondents-Appellees.

______________________

AMERICAN WILD HORSE
PRESERVATION CAMPAIGN;
RETURN TO FREEDOM; THE
CLOUD FOUNDATION; CAROL
WALKER; KIMERLEE CURYL,

     Intervenors-Appellees.

______________________

WYOMING STOCK GROWERS
ASSOCIATION,

     Amicus Curiae.
        APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF WYOMING
                  (D.C. No. 2:14-CV-00248-NDF)


Michael J. McGrady, Senior Assistant Attorney General, Wyoming Attorney
General’s Office, Cheyenne, Wyoming, for Petitioner-Appellant.

Allen M. Brabender, Attorney, United States Department of Justice, Environment
& Natural Resources Division, Washington, D.C., (Arthur R. Kleven, Attorney,
Office of the Solicitor, United States Department of the Interior, Washington,
D.C.; John C. Cruden, Assistant Attorney General, Environment & Natural
Resources Division, Washington, D.C.; Alison C. Finnegan, Attorney, United
States Department of Justice, Environment Natural Resources Divsion,
Washington, D.C., with him on the brief), for Respondents-Appellees.

William S. Eubanks, II, Meyer Glitzenstein & Eubanks LLP, Ft. Collins, Colorado
(Katherine A. Meyer, Meyer Glitzenstein & Eubanks LLP, Washington, D.C.,
with him on the brief), for Intervenors-Appellees.

Maegan L. Woita and Steven J. Lechner, Mountain States Legal Foundation,
Lakewood, Colorado, filed an amicus curiae brief on behalf of the Wyoming
Stock Growers Association.



Before BRISCOE, McKAY and MATHESON, Circuit Judges.


BRISCOE, Circuit Judge.


      Petitioner State of Wyoming (the State) filed this action against the United

States Department of the Interior, the Secretary of the Department, and the acting

director of the Bureau of Land Management (BLM) seeking judicial review of

what the State claimed was their failure to comply with non-discretionary


                                        2
obligations imposed upon them by the Wild Free-Roaming Horses and Burros

Act, 16 U.S.C. §§ 1331-1340 (1982). More specifically, the State alleged that

respondents were statutorily obligated, but had failed, to properly manage the

overpopulation of wild horses on seven areas of public land in Wyoming.

Respondents moved to dismiss the petition for failure to state a claim upon which

relief could be granted. The district court granted respondents’ motion and

dismissed the action. The State now appeals. Exercising jurisdiction pursuant to

28 U.S.C. § 1291, we affirm.

                                         I

                  The Wild Free-Roaming Horses and Burros Act

      The Wild Free-Roaming Horses and Burros Act (the Act), 16 U.S.C.

§§ 1331-1340, was enacted by Congress in 1971 pursuant to the Property Clause

of the United States Constitution. Mountain States Legal Found. v. Hodel, 799

F.2d 1423, 1425 (10th Cir. 1986). As its name suggests, the Act was designed to

protect from “capture, branding, harassment, or death,” the wild horses and burros

that roam the rangelands of the western United States. Id. (quoting 16 U.S.C. §

1331). “[T]he Act declares wild horses and burros to be an ‘integral part of the

natural system of the public lands,’ 16 U.S.C. § 1331 (1982), and mandates that

the animals be managed ‘as components of the public lands.’” Id. (quoting 16

U.S.C. § 1333(a)).

      The Act proved to be effective at remedying the decline of wild horse

                                         3
herds. Indeed, the Act proved almost too effective, as excess numbers of wild

horses began to pose a threat to habitat conditions. In 1978, Congress concluded

that amendments to the Act were necessary “to facilitate the humane adoption or

disposal of excess wild free-roaming horses and burros . . . because they [were]

exceed[ing] the carrying capacity of the range, [and] pos[ing] a threat to their

own habitat, fish, wildlife, recreation, water and soil conservation, domestic

livestock grazing, and other rangeland values . . . .” Pub. L. No. 95-514, §

2(a)(6), 92 Stat. 1803, 1803 (1978) (codified as amended at 43 U.S.C. §

1901(a)(6)). Accordingly, Congress amended the Act to give the Secretary of the

Interior greater authority to manage wild horses on public lands. Id. § 14, 92

Stat. at 1808-10.

                     The BLM and its management obligations

      In the Act, Congress designated the BLM to oversee the management of

wild horses and burros on public lands. BLM manages wild horses on public

lands within what it calls designated herd management areas (HMAs). 43 C.F.R.

§ 4710.3-1. HMAs and their boundaries are established by BLM in Resource

Management Plans (RMPs). RMPs are prepared through a land-use planning

process conducted pursuant to the Federal Land Policy and Management Act of

1976, 43 U.S.C. §§ 1701 et seq. To comply with the Act’s directive to manage

wild horses “in a manner that is designed to achieve and maintain a thriving

natural ecological balance on the public lands,” 16 U.S.C. § 1333(a), the BLM (a)

                                          4
maintains a current inventory of wild horses in each HMA, (b) determines the

appropriate management level (AML) of wild horses that each HMA can sustain,

and (c) determines the method of achieving the designated AML. Id.

§ 1333(b)(1); 43 C.F.R. §§ 4710.2, 4710.3-1.

      The Act does not define the phrase “appropriate management level.” The

BLM itself generally defines AML “as a population range within which [wild

horses and burros] can be managed for the long term.” Bureau of Land Mgmt.,

U.S. Dep’t of Interior, BLM Handbook H-4700-1, Wild Horses and Burros

Management Handbook 17 (2010), http://www.blm.gov/style/medialib/blm/wo/

Information_Resources_Management/policy/blm_handbook.Par.11148.File.dat/H-

4700-1.pdf. According to the BML, “[t]he AML upper limit shall be established

as the maximum number of [wild horses and burros] which results in a [thriving

natural ecological balance] and avoids a deterioration of the range.” Id. “This

number,” the BLM states, “should be below the number that would cause

rangeland damage.” Id. (citation omitted). “The AML lower limit shall normally

be established at a number that allows the population to grow (at the annual

population growth rate) to the upper limit over a 4-5 year period, without any

interim gathers to remove excess [wild horses and burros].” Id.

                             The seven HMAs at issue

      Seven HMAs are at issue in this lawsuit: Antelope Hills, Crooks Mountain,

Green Mountain, Lost Creek, Stewart Creek, Fifteenmile, and Little Colorado.

                                         5
The State owns varying amounts of acreage in each of these seven HMAs. Aplt.

App. at 20-21 (listing State acreage per HMA). It is undisputed that the BLM’s

2014 population estimates indicate that the wild horse populations on each of

these seven HMAs exceed the upper limit of their respective AMLs.

                           The State’s demand to the BLM

      On August 21, 2014, the State, through Governor Mead, wrote to the

Secretary of the Interior and the Acting Director of the BLM claiming that these

seven HMAs “contain[ed] wild horses in excess of AML.” Id. at 17. The letter

further stated that AMLs “determine when an overpopulation exists, triggering the

[BLM’s] non-discretionary duty to remove excess animals from an HMA.” Id.

The letter stated that the State would “proceed in court against [the Secretary and

the Acting Director] in [their] official capacit[ies] . . . for failure to comply with

non-discretionary duties in the . . . Act unless the violations identified in th[e]

letter [we]re remedied within 60 days.” Id. at 18. On October 28, 2014, the State

sent a follow-up letter stating, in pertinent part, that because the BLM “ha[d] not

taken action or responded to [the first] letter,” the State “consider[ed] [this]

silence to be a final decision not to act.” Id. at 176. The letter in turn stated that

Governor Mead “intend[ed] to instruct the Wyoming Attorney General to file

suit.” Id.

                                 The BLM’s response

      The BLM finally responded by letter on November 5, 2014. The letter

                                            6
stated, in pertinent part:

      The BLM acknowledges your concerns about expanding wild horse
      populations and understands the need to manage populations within
      Appropriate Management Levels (AMLs), along with other
      responsibilities under the Act.

      As you know, on October 8th the BLM Wyoming State Office
      removed 1,263 wild horses from the checkerboard area in
      southwestern Wyoming. This large removal was in compliance with
      the Act and the Rock Springs Grazing Association Consent Decree.
      It reduced the wild horse populations in the affected Herd
      Management Areas to below AML.

      Gather plans for fiscal year 2015 are currently being developed. As
      the BLM plans management activities for 2015, we will carefully
      consider the actions needed in Wyoming along with all wild horse
      management requirements in 10 western states. The BLM will utilize
      our resources and capabilities to the maximum extent possible under
      the circumstances, including the limited capacity at holding facilities.

      We request your continued assistance in collaborating with the BLM
      and stakeholders to identify a strategy for Wyoming that recognizes
      the many challenges we face to achieve a fiscally and ecologically
      sustainable program. We look forward to working with you and your
      staff to resolve these concerns.

Id. at 178.

                                           II

      On December 8, 2014, the State initiated this action by filing what it styled

as a “PETITION FOR REVIEW OF FINAL AGENCY INACTION.” Id. at 12.

The State’s petition sought judicial review under the Administrative Procedure

Act (APA), specifically 5 U.S.C. § 706(1), 1 of what the State described as the

      1
          Section 706(1) states that a “reviewing court shall . . . compel agency
                                                                         (continued...)

                                           7
respondents’ “final decision not to manage wild horses in Wyoming according to

their mandatory, non-discretionary obligations under the Act.” Aplt. App. at 13.

In support, the petition alleged that “[r]espondents [we]re in violation of the Act

for failing to adequately management [sic] overpopulations of wild horses on

public lands in Wyoming . . . .” Id. at 14. The petition asked the district court to

“[o]rder that the [r]espondents take immediate action to remove excess wild

horses from Wyoming public lands and prevent wild horse overpopulations in

Wyoming . . . .” Id.

      Respondents moved to dismiss the complaint for failure “to state a claim

for which relief c[ould] be granted under the . . . Act or the [APA] because . . .

[r]espondents do not have a mandatory duty to remove wild horses from the

[HMAs] at issue in the [p]etition.” Id. at 180.

      On April 21, 2015, the district court issued an order granting respondents’

motion to dismiss. In doing so, the district court concluded that “the State’s

petition fail[ed] to set forth a discrete agency action that BLM [wa]s required to

take” under the Act. Id. at 335.

      Judgment in the case was entered that same day. The State filed a notice of

appeal on June 19, 2015.




      1
       (...continued)
action unlawfully withheld or unreasonably delayed . . . .” 5 U.S.C. § 706(1).

                                           8
                                          III

      In its appeal, the State challenges the district court’s order dismissing its

petition for failure to state a claim upon which relief can be granted under the Act

or the APA. “We ‘review de novo the grant of a Rule 12(b)(6) motion to dismiss

for failure to state a claim . . . .’” Wasatch Equal. v. Alta Ski Lifts Co., 820 F.3d

381, 386 (10th Cir. 2016) (quoting Gee v. Pacheco, 627 F.3d 1178, 1183 (10th

Cir. 2010)). “In reviewing the complaint, we ‘accept all facts pleaded by the non-

moving party as true and grant all reasonable inferences from the pleadings in

favor of the same,’ but we [do not] accept the nonmoving party’s legal

conclusions as true.” Id. (quoting Colony Ins. Co. v. Burke, 698 F.3d 1222, 1228

(10th Cir. 2012); and citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

      The question before us is whether the State’s petition states a valid claim

under the APA that the BLM “unlawfully withheld or unreasonably delayed”

action that it was required to take under Section 3 of the Act. 5 U.S.C. § 706(1);

see Norton v. SUWA, 542 U.S. 55, 64 (2009) (“[A] claim under § 706(1) can

proceed only where a plaintiff asserts that an agency failed to take a discrete

agency action that it is required to take.”) (emphasis in original). More

specifically, the question is whether, as the State alleged in its petition, Section 3

obligated the BLM to gather or otherwise remove excess wild horses from each of

the seven HMAs once it learned that the wild horse population in each of those

HMAs exceeded the upper limit of their respective AMLs.

                                           9
      Section 3 of the Act declares that “[all] wild free-roaming horses . . . are

. . . under the jurisdiction of the Secretary [of the Interior] for the purpose of

management and protection . . . .” 16 U.S.C. § 1333(a). It in turn directs the

Secretary “to protect and manage wild free-roaming horses . . . as components of

the public lands” and “in a manner that is designed to achieve and maintain a

thriving natural ecological balance on the public lands.” Id. “All management

activities,” Section 3 provides, “shall be at the minimal feasible level . . . .” Id.

      Of particular relevance here, subsection (b) of Section 3 outlines the

Secretary’s duties with respect to inventorying wild horses and dealing with

overpopulation issues:

      (1) The Secretary shall maintain a current inventory of wild
      free-roaming horses and burros on given areas of the public lands.
      The purpose of such inventory shall be to: make determinations as to
      whether and where an overpopulation exists and whether action
      should be taken to remove excess animals; determine appropriate
      management levels of wild free-roaming horses and burros on these
      areas of the public lands; and determine whether appropriate
      management levels should be achieved by the removal or destruction
      of excess animals, or other options (such as sterilization, or natural
      controls on population levels). In making such determinations the
      Secretary shall consult with the United States Fish and Wildlife
      Service, wildlife agencies of the State or States wherein wild
      free-roaming horses and burros are located, such individuals
      independent of Federal and State government as have been
      recommended by the National Academy of Sciences, and such other
      individuals whom he determines have scientific expertise and special
      knowledge of wild horse and burro protection, wildlife management
      and animal husbandry as related to rangeland management.

      (2) Where the Secretary determines on the basis of (i) the current
      inventory of lands within his jurisdiction; (ii) information contained

                                           10
      in any land use planning completed pursuant to section 1712 of Title
      43; (iii) information contained in court ordered environmental impact
      statements as defined in section 1902 of Title 43; and (iv) such
      additional information as becomes available to him from time to
      time, including that information developed in the research study
      mandated by this section, or in the absence of the information
      contained in (i-iv) above on the basis of all information currently
      available to him, that an overpopulation exists on a given area of the
      public lands and that action is necessary to remove excess animals,
      he shall immediately remove excess animals from the range so as to
      achieve appropriate management levels. Such action shall be taken,
      in the following order and priority, until all excess animals have been
      removed so as to restore a thriving natural ecological balance to the
      range, and protect the range from the deterioration associated with
      overpopulation:

            (A) The Secretary shall order old, sick, or lame animals to be
            destroyed in the most humane manner possible;

            (B) The Secretary shall cause such number of additional excess
            wild free-roaming horses and burros to be humanely captured
            and removed for private maintenance and care for which he
            determines an adoption demand exists by qualified individuals,
            and for which he determines he can assure humane treatment
            and care (including proper transportation, feeding, and
            handling): Provided, That, not more than four animals may be
            adopted per year by any individual unless the Secretary
            determines in writing that such individual is capable of
            humanely caring for more than four animals, including the
            transportation of such animals by the adopting party; and

            (C) The Secretary shall cause additional excess wild
            free-roaming horses and burros for which an adoption demand
            by qualified individuals does not exist to be destroyed in the
            most humane and cost efficient manner possible.

Id. § 1333(b)(1)–(2) (emphasis added).

      The State argues that Section 3 “clearly requires the [BLM] to remove

excess wild horses when the population of [an HMA] exceeds what the agency

                                         11
has determined through thorough analysis to be the [AML] for the area.” Aplt.

Br. at 23. In other words, the State argues, “surpassing the [AML] triggers the

. . . Act’s requirement to remove excess horses.” Id. at 21. The State also alleges

that in this case, the BLM “identified the” AML for each of the seven HMAs at

issue and subsequently “collected inventory data showing an overpopulation” in

each of them. Id. “The Act,” the State argues, thus “leaves nothing for the

[BLM] to do but remove the excess wild horses in the seven areas.” Id.

      The State’s arguments, however, are contrary to the plain language of

Section 3. After directing the BLM to “maintain a current inventory of wild

free-roaming horses and burros on given areas of the public lands,” subsection

(b)(1) states that “[t]he purpose of such inventory shall be,” in pertinent part, “to

. . . make determinations as to whether and where an overpopulation exists and

whether action should be taken to remove excess animals[,] . . . and [to]

determine whether [AMLs] should be achieved by the removal or destruction of

excess animals, or other options (such as sterilization, or natural controls on

population levels).” 16 U.S.C. § 1333(b)(1). Subsection (b)(1)’s use of the

phrase “whether action should be taken to remove excess animals” quite clearly

affords the BLM with discretion to decide whether or not to remove excess

animals.

      Any doubts on this score are negated by the language of subsection (b)(2).

It provides, in pertinent part, that the BLM “shall immediately remove excess

                                          12
animals from the range so as to achieve [AMLs]” only after the BLM “determines

. . . that an overpopulation exists on a given area of the public lands and that

action is necessary to remove excess animals . . . .” Id. § 1333(b)(2) (emphasis

added). In other words, contrary to the State’s argument, a determination that an

overpopulation exists in a given HMA is not sufficient, standing alone, to trigger

any duty on the part of the BLM. Instead, the BLM must also determine that

action is necessary to remove excess animals.

      Turning to the facts alleged in the State’s petition, it is indisputable that

only the first of these statutory requirements has been met, i.e., the determination

of an overpopulation in each of the seven HMAs. Importantly, the second

requirement has not been satisfied because the BLM has not determined that

action is necessary to remove the excess animals. Consequently, the State cannot

establish that the BLM has “unlawfully withheld or unreasonably delayed” action

that it was required to take under Section 3 of the Act, and thus has failed to state

a claim upon which relief can be granted under the APA. 5 U.S.C. § 706(1).

      The State also argues that “[t]he district court . . . erred in concluding that

the [BLM] has discretion to wait for more proof that removal is necessary.” Aplt.

Br. at 21. In support, the State argues that “[w]hile Congress afforded the agency

discretion to determine [an] area’s [AML], in 1978 Congress removed any

discretion the [BLM] might have had to ignore its own monitoring data showing

that an overpopulation exists and that removal is necessary to restore an area back

                                          13
to the [AML].” Id. In other words, the gist of the State’s argument on this point

appears to be that AMLs “represent the agency’s scientific determination about

how many horses a particular [HMA] can sustain without threatening the area’s

thriving natural ecological balance or causing range deterioration.” Id. at 24.

Thus, the State asserts, once it is determined that the wild horse population in an

HMA exceeds its AML, it is established that removal is necessary and the BLM

“no longer has discretion” to fail or refuse to act. Id. “Therefore,” the State

argues, “this Court should reverse the district court’s dismissal and hold the

[BLM] to its own analysis and to Congress’s mandate in the . . . Act to perform

the discrete, non-discretionary action being unlawfully withheld—the removal of

excess wild horses from the overpopulated [HMAs] in Wyoming.” Id. at 21-22.

      We reject the State’s arguments and conclude that they are nothing more

than a reformulation of its main argument. As noted, the Act does not define the

phrase “appropriate management level” and thus does not equate it with any

requirement to remove excess animals from a particular HMA. Nor does the

BLM itself define the phrase as equivalent to a determination that removal is

necessary. Further, and most importantly, the language of Section 3, as discussed

above, clearly requires both a determination by the BLM “that an overpopulation

exists on a given area of the public lands and that action is necessary to remove

excess animals . . . .” 16 U.S.C. § 1333(b)(2) (emphasis added). Because only

the first of these determinations has been made, the BLM is under no statutory

                                          14
duty to remove animals from the seven HMAs at issue. Moreover, there is

nothing in the statute that obligates the BLM to make an immediate determination

regarding the second requirement.

                                       IV

      The judgment of the district court is AFFIRMED.




                                       15
