ELR Citation: ELR 21288
No(s). 92-2871 (8th Cir. Jun 15, 1993)

The court vacates a district court order permanently enjoining the Secretary of the Interior and the Superintendent of the Ozark National Scenic Riverways from destroying, removing, moving, transporting, molesting, or otherwise harming feral or wild horses in the Ozark National Scenic Riverways Park in Missouri. The court holds that although the district court correctly decided that determining whether the agencies acted arbitrarily or capriciously was the appropriate standard of review, the lower court applied the standard incorrectly. The district court chose not to remand the matter to the Secretary, but developed independent findings of fact at trial. The proper standard of judicial review of agency decisionmaking does not permit the district court to make independent findings. The court holds that sufficient evidence exists in the record to support the Secretary's decision to remove the horses from the park and that the decision is not arbitrary and capricious. The court holds that its decision is supported by the 1916 Organic Act and the decision of the U.S. Court of Appeals for the Tenth Circuit in New Mexico State Game Commission v. Udall, 410 F.2d 1197 (1969).

A dissenting judge would affirm the district court's decision, because the agencies' purported decision documents were generated long after the agencies effectively made their decision, the agencies have failed to adequately explain their actions, the Superintendent's conclusion that removal was mandated by governing statutes and regulations is not in accordance with law, and the agencies ignored the declaration in the Wild Free-Roaming Horses and Burros Act of 1971 that it is Congress' policy that wild and free-roaming horses and burros shall be protected from capture.

Counsel for Appellees
Douglas Kennedy
Kennedy & Kennedy
P.O. Box 696, Poplarbluff MO 63901
(314) 686-2459

Counsel for Appellants
M. Thurston
Environmental and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000