ELR Citation: ELR 20456
No(s). 85-1585 (9th Cir. Feb 27, 1986)

The court holds that §4 of the Wild Free-Roaming Horses and Burros Act does not impose a duty on the Bureau of Land Management (BLM) to prevent wild horses from straying onto private lands. After BLM failed to respond to plaintiffs' requests that wild horses be removed from their property, plaintiffs sought mandamus to compel BLM to remove the horses and to prevent any future entry. The court holds that plaintiffs have not proven the requirements for mandamus to issue. The court rules that §4 of the Act does not impose a ministerial duty on BLM to prevent wild horses from straying onto private lands. The plain language of the section creates no express duty and the court finds no implied duty. Congress clearly anticipated in §4 the possiblity of wild horses straying onto private land, but it rejected the use of intensive management techniques. The court next rules that §4's requirement that BLM remove strays upon notification by the landowner in an adequate remedy. Upon such notification, BLM has a non-discretionary duty to remove the horses. The court rules that BLM is required to remove the horses within a reasonable time period. Although the Act does not specify any such period, an unreasonable delay would frustrate Congress' intent. The court declines to rule on what a reasonable time period is, however, and remands the case for the district court to make this determination.

Counsel for Plaintiffs-Appellees
William F. Schroeder
Schroeder & Hutchens
280 A St. E., P.O. Box 220, Vale OR 97918
(503) 473-3141

Counsel for Defendants-Appellants
William B. Lazarus
Department of Justice, Washington DC 20530
(202) 633-2000

Counsel for Amicus Curiae
Dan R. Reasor, Deputy Attorney General
Heroes Memorial Bldg., Carson City NV 89710
(702) 885-4170

Before Fletcher and Wiggins, JJ.