ELR Citation: ELR 20944
No(s). s. 90-15124, -15125 (9th Cir. May 1, 1992)

The court holds that Nevada ranch operators did not violate their Taylor Grazing Act §4 federal range improvement permit when they installed highway guardrails around one of the water troughs they were authorized to construct on Bureau of Land Management (BLM) land to discourage wild horses from grazing the surrounding land. In 1967, the ranch operators obtained the §4 permit allowing them to install steel gates, maintain and use a stock-watering facility on public lands, and requiring wildlife access to water. At that time, approximately 130 wild horses roamed the area. However, as a result of Congress passing the Wild Free-Roaming Horses and Burros Act in 1971, approximately 1,800 wild horses inhabited the area by 1984, several hundred of which were attracted to the operators' stock-watering facility for water and grazing. In 1983, the operators installed highway guardrails across the entrances to nine water troughs that prevented access to the water by wild horses, but did not bar access by cattle or indigenous wildlife. BLM thereafter notified the operators that the modifications violated the §4 permit because prior approval had not been obtained. After the operators refused to remove the modification at one water trough, BLM canceled that permit. On appeal, an administrative law judge determined no violation had taken place, and BLM appealed to the Interior Board of Land Appeals (IBLA), which reversed. On appeal, the district court held that the modification did not require preapproval by BLM.

The court first observes that although stretching the definition of "gates" in the permit to include guardrails may be unwarranted, both the IBLA and the trial court accepted this construction, and it is not challenged on appeal. The court holds that although there would be little basis for quibbling about whether wild horses are wildlife, the trial court's holding that the term "wildlife" used in the operators' §4 permit did not include feral horses was not clearly erroneous. By concluding that the IBLA failed to consider the purposes of the Taylor Grazing Act in construing the intent of the parties to the 1967 permit, the district court reasonably concluded that "wildlife" does not include wild horses. No sane rancher would spend thousands of dollars to drill a deep well and build associated water works in order to attract a population of wild horses that would eat and uproot all the grass for miles around the water hole. Moreover, BLM could not claim that a purpose of the range improvement permit was to provide water to wild horses because none roamed the well-site area at the time the permit was issued.

A dissenting judge would hold that the operators' modification violated the permit, because Congress intended to allow wild horses and burros to be treated as wildlife under the Taylor Grazing Act because legislators were aware of the Taylor Grazing Act when they passed the Wild Free-Roaming Horses and Burros Act.

[An earlier decision in this litigation is published at 16 ELR 20456.]

Counsel for Defendants-Appellants
William B. Lazarus
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendant-Intervenor-Appellant
Laurens H. Silver
Sierra Club Legal Defense Fund
2044 Fillmore St., San Francisco CA 94115
(415) 567-6100

Before Sneed and Taylor^*, JJ.