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FN1. Act of Dec. 15, 1971, Pub.L.No.92-195, 85 Stat. 649, 16 U.S.C. ss 1331-1340 (Supp. V 1975) (hereinafter “Act”). The Supreme Court has held the Act constitutional. Kleppe v. New Mexico, 426 U.S. 529, 96 S.Ct. 2285, 49 L.Ed.2d 34 (1976).
FN2. Act, s 2(b), 16 U.S.C. s 1332(b) (Supp. V 1975).
FN3. Act, s 1, 16 U.S.C. s 1331 (Supp. V 1975).
FN6. Act, s 2(a), 16 U.S.C. s 1332(a) (Supp. V 1975).
FN7. See text infra at notes 8-12.
FN8. Act, s 3(a), 16 U.S.C. s 1333(a), provides in pertinent part:All wild free-roaming horses and burros are hereby declared to be under the jurisdiction of the Secretary for the purpose of management and protection in accordance with the provisions of this chapter. The Secretary is authorized and directed to protect and manage wild free-roaming horses and burros as components of the public lands, and he may designate and maintain specific ranges on public lands as sanctuaries for their protection and preservation, where the Secretary after consultation with the wildlife agency of the State wherein any such range is proposed and with the Advisory Board established in section 1337 of this title deems such action desirable. The Secretary shall manage wild free-roaming horses and burros in a manner that is designed to achieve and maintain a thriving natural ecological balance on the public lands. . . . All management activities shall be at the minimal feasible level and shall be carried out in consultation with the wildlife agency of the State wherein such lands are located in order to protect the natural ecological balance of all wildlife species which inhabit such lands, particularly endangered wildlife species.Act, s 7, 16 U.S.C. s 1337, provides in part:The Secretary of the Interior and the Secretary of Agriculture are authorized and directed to appoint a joint advisory board of not more than nine members to advise them on any matter relating to wild free-roaming horses and burros and their management and protection.
FN9. Act, s 3(a), 16 U.S.C. s 1333(a) (Supp. V 1975), quoted in part supra note 8.
FN11. Act, s 3(a), (b), 16 U.S.C. s 1333(a), (b) (Supp. V 1975).
FN12. Act, s 6, 16 U.S.C. s 1336 (Supp. V 1975). The Act also provides criminal penalties (a) for willfully removing wild free-roaming horses or burros from public lands; (b) for converting them to private use; (c) for harassing, causing the death of, or processing any such animal into a commercial product; (d) for selling any such animal directly or indirectly; and (e) for willful violations of regulations issued pursuant to the Act. Act, s 8(a), 16 U.S.C. s 1338(a) (Supp. V 1975).
FN13. Act, s 2(b), 16 U.S.C. s 1332(b) (Supp. V 1975).
FN14. Act, s 5, 16 U.S.C. s 1335 (Supp. V 1975).
FN15. Appellants are the American Horse Protection Association and a member of the joint advisory board created under the Act. The Humane Society of the United States, a plaintiff in the District Court, did not join in this appeal.
FN16. Appellees are the Departments of the Interior and Agriculture and officials thereof.
FN17. These statutes are The Administrative Procedure Act, Pub.L.No.89-554, 80 Stat. 383, 5 U.S.C. ss 551 et seq. (1970); the Act of Aug. 27, 1958, Pub.L.No.85-765, 72 Stat. 862, 7 U.S.C. ss 1901 et seq. (1970); the Act of Aug. 24, 1966, Pub.L.No.89-544, 80 Stat. 350, as amended, 7 U.S.C. ss 2131 et seq. (1970); the Horse Protection Act of 1970, Pub.L.No.91-540, 84 Stat. 1404, as amended, 15 U.S.C. ss 1821 et seq. (1970); the Act of Nov. 18, 1971, Pub.L.No.92-159, 85 Stat. 480, 16 U.S.C. s 742j-1 (Supp. V 1975); the Act of Sept. 8, 1959, Pub.L.No.86-234, 73 Stat. 470, 18 U.S.C. ss 47(a) et seq. (1970); the National Environmental Policy Act of 1969, Pub.L.No.91-190, 83 Stat. 852, 42 U.S.C. ss 4321 et seq. (1970); the Taylor Grazing Act, Pub.L.No.73-842, 48 Stat. 1269, as amended, 43 U.S.C. ss 315 et seq. (1970). The posture of the case on this appeal renders unnecessary any present consideration of the possible relationship of these laws to the litigation.
FN18. Joint Appendix (J.App.) 134-135.
FN19. See note 35 infra.
FN20. J.App. 135.
FN21. J.App. 135. Even assuming, however, that the horses were owned by the ranchers, the Act and implementing regulations would not permit the ranchers to round them up without first complying with prescribed procedures. See note 34 infra.
FN22. J.App. 181-187.
FN23. J.App. 183.
FN24. J.App. 183.
FN25. J.App. 183.
FN26. J.App. 184.
FN27. J.App. 185.
FN28. J.App. 185.
FN29. J.App. 185.
FN30. J.App. 185. Snowmobiles were also used to round up the horses.
FN31. J.App. 135, 186.
FN32. They are Senator James G. Abourzek and Representative Gilbert Gude.
FN33. J.App. 136.
FN34. J.App. 78-91. The joint agreement between the Bureau, the Forestry Service and the State of Idaho was entered into in July, 1973, several months after the roundup at issue in this case. J.App. 255-257. That agreement provides that prior to any roundup of horses, the claimant must submit to the Bureau a sworn affidavit containing designated information concerning the animals claimed. Bills of sale recognized by the state and valid animal-inspection certificates are also to be submitted when available; if they cannot be produced, other indicia of ownership may be accepted. Following the submission, state and federal officials are to meet and review the data and, on the basis of the review, the state officer is to certify to the federal official his opinion as to whether the claimant meets the state's ownership requirements. If he does, the federal official is to issue a written authorization to the claimant to round up the animals. After the roundup, however, the two officials are to examine the animals and, if they are satisfied as to ownership, the animals are to be turned over to the claimant. J.App. 257. The agreement does not indicate what occurs if the state official is satisfied as to ownership but the federal official is not.
FN35. J.App. 263-267. The memorandum discusses in some detail the problems incidental to adjudication of claims to the animals. It states in part:It should be noticed that in the Howe Horse Incident the Estray Laws were not followed.The testimony also indicates that horses were lost and/or released during the 1950's and up to about 1964 or 1965 and that since then no acts actually showing ownership have taken place by the persons claiming the horses or having signed the bills of sale for these horses.Possibly action to substantiate ownership could have been initiated under the Idaho Stallion Law . . . (o)r under the Idaho Estray Law. . . . But, the actions taken in capturing the horses here in question did not follow either of these Idaho laws and thus under the Idaho cases cited to you and general case law no title can be based upon these laws and none of the claimants could claim title under the laws since they have not followed them.J.App. 264-266.
FN36. J.App. 78-91.
FN37. J.App. 181-182, 186.
FN38. J.App. 91.
FN39. J.App. 181-182.
FN40. J.App. 181-182.
FN41. The Brand Inspector's discussion of these horses, J.App. 82-84, does not indicate exactly how many horses were pictured.
FN42. J.App. 83-84. The decision also undertook to establish the ownership of a small number of horses, some branded, which were found not to have been involved in the roundup, but were added to the group shipped to Nebraska for slaughter. The bases for these determinations were either the brands or their identification by an individual who was said to have “a well-developed ability to recognize and remember individual horses.” J.App. 86.
FN43. J.App. 90.
FN44. J.App. 91. By this time all of the bills of sale had been assigned to one person. Even assuming that this evidence sufficed to show private ownership of the horses at one time, it does not resolve the issue relevant under s 5 of the Act. The horses could be claimed only by individuals who could prove ownership under state law, and any horse as to which ownership could not be demonstrated would be wild and free-roaming within the contemplation of the Act even though at some past time it might have been domesticated. This result is implicit in the Idaho Attorney General's memorandum which cautioned the Brand Inspector that the horses probably could not be claimed under the state's estray laws, J.App. 263-267. If they could not be so claimed they necessarily fell within the Act's definition of wild free-roaming horses. See text supra at note 13.
FN45. J.App. 137.
FN46. J.App. 142.
FN47. Appellee filed a cross-appeal from the District Court's stay of its judgment pending this appeal. Since, in their brief they offer no argument whatsoever in support of the cross-appeal, we decline to consider any question in regard to the stay. Fed.R.App.P. 28(h); Democratic Cent. Comm. v. Washington Metropolitan Area Transit Comm'n, 158 U.S.App.D.C. 7, 11 n.16, 485 F.2d 786, 790 n.16, cert. denied, 415 U.S. 935, 94 S.Ct. 1451, 39 L.Ed.2d 493 (1973), and cases cited therein.
FN48. Act, s 5, 16 U.S.C. s 1335 (Supp. V 1975).
FN49. Act, ss 3(a), 6, 16 U.S.C. ss 1333(a), 1336 (Supp. V 1975).
FN50. See, e.g., First Nat'l Bank v. Walker Bank & Trust Co., 385 U.S. 252, 261, 87 S.Ct. 492, 497, 17 L.Ed.2d 343, 349 (1966); United Shoe Workers AFL-CIO v. Bedell, 165 U.S.App.D.C. 113, 118, 506 F.2d 174, 179 (1974); Portland Cement Ass'n v. Ruckelshaus, 158 U.S.App.D.C. 308, 316, 486 F.2d 375, 383, cert. denied, 417 U.S. 921, 94 S.Ct. 2628, 41 L.Ed.2d 226 (1973); National Petroleum Ref. Ass'n v. FTC, 157 U.S.App.D.C. 83, 100, 482 F.2d 672, 689, cert. denied, 415 U.S. 951, 94 S.Ct. 1475, 39 L.Ed.2d 567 (1973).
FN51. Act, s 1, 16 U.S.C. s 1331 (Supp. V 1975).
FN54. The hearings were conducted by the Subcommittee on Public Lands of the Senate Committee on Interior and Insular Affairs and by the Subcommittee on Public Lands of the House Committee on Interior and Insular Affairs.
FN55. Hearings before the Subcomm. on Public Lands, House Comm. on Interior and Insular Affairs, 92d Cong., 1st Sess., 27, 81-82, 84-85, 97, 135-136, 183-184 (1971) (hereinafter 1971 House Hearings ); Hearings before the Subcomm. on Public Lands, Senate Comm. on Interior and Insular Affairs, 92d Cong., 1st Sess., 52, 58, 73, 88-95, 181 (1971) (hereinafter cited 1971 Senate Hearings ).
FN56. 1971 House Hearings at 27.
Federal legislation is urgently needed to protect the remaining wild horses and burros not only because they are threatened with possible extinction, but also due to the fact that states have been notoriously lax in protecting these animals.[FN57]
FN57. 1971 Senate Hearings at 52.
FN58. S. 1116 as amended and modified eventuated as the Act.
FN59. S.Rep.No.242, 92d Cong., 1st Sess. 3 (1971), U.S.Code Cong. & Admin.News 1971, pp. 2149, 2150.
During the consideration of this legislation, the committee found that one of the most difficult problems was a means of determining what was a wild free-roaming horse or burro. While relatively easy to define, that is, “all unbranded and unclaimed horses or burros on public lands,” this does not, of course, make actual field identification of a specific animal either positive or easy. Many privately owned animals are unbranded, and merely because of this lack of visible markings the ownership of such animals should not be placed in doubt. In recognition of this problem, the bill provides that any person asserting ownership of a horse or burro on the public lands shall do so in accordance with the branding and estray laws of the State in which it is found. This permits full play of State laws regarding any question of ownership. [FN60]
FN60. H.R.Rep.No.480, 92d Cong., 1st Sess. 5 (1971). Appellees point further to other testimony at the hearings in an effort to demonstrate that Congress intended that state officials make the final determinations on ownership of animals claimed pursuant to s 5. They rely specifically on the testimony of several individuals distressed by language in several bills under consideration which would have required that ownership claims be proven to the satisfaction of the Secretaries. 1971 House Hearings at 149; 1971 Senate Hearings at 136. The major objection to a provision of that kind was that it would lead to conflict with various state brand and estray laws and would promote sentiments for a national law on brands and estrays. 1971 House Hearings at 121-122, 149; 1971 Senate Hearings at 134-135, 156. Dean T. Prosser, chief brand inspector and executive secretary of the Wyoming Stock Growers Association and president of the International Livestock Brand Conference, an organization representing official brand inspection agencies and livestock law enforcement officers from 21 states and several Canadian and Mexican provinces testified as follows:My point here that I wish to stress is that with these State laws in effect, the proposal to classify all unbranded horses and burros running on public lands as free-roaming horses and burros, except those to which private owners can establish title to the satisfaction of the Secretary of the Interior is in direct conflict.As an organization representing all States with existing brand laws, we are apprehensive about the possibility of a national law that could create such “conflicts” or even override existing established State laws. We do not oppose the establishment of wild horse refuges where the need can be clearly demonstrated, and where all parties concerned can come to agreement, but we do oppose an arbitrary establishment of such refuges by national law, which we fear may be only done as a legislation reaction to the hysteria that has unquestionably been created by the media in regard to this matter. If we confined wild horse refuges to those areas where the true feral Spanish mustang exists, we would perhaps be on sound ground. Moreover, the language used in many of these bills such as I have previously read concerns us deeply, and I only hope that the subcommittee will take our suggestions into consideration so as to help avoid unneeded and unfortunate conflicts with existing laws regarding the classification of unbranded horses per se.1971 House Hearings at 149.
FN61. National Petroleum Ref. Ass'n v. FTC, supra note 50, 157 U.S.App.D.C. at 100, 482 F.2d at 689.
FN62. See text supra at notes 56-57.
FN63. See text supra at note 55.
FN64. See note 8 supra.
FN65. See text supra at note 56.
FN66. Dilution of the traditional standards and burdens of proof conceivably could wreak havoc on the legislative scheme. See text supra at notes 34-44. The dangers of departure from accepted norms is not unreal. For example, witnesses testified at the subcommittee hearings that legislation was needed to combat a technique common in many states. Ranchers frequently release their own horses into herds of wild horses and then seize the wild horses when they reclaim their horses. 1971 House Hearings at 15, 89-90, 185. While state brand and estray laws might forbid such practices, the testimony indicated that they are widespread.
FN67. See text supra at notes 59-60.
FN68. See text supra at notes 56-57.
FN69. J.App. 175-178.
FN70. J.App. 176.
FN71. J.App. 176.
FN72. J.App. 177. Proof that the state agency charged with livestock inspection had accepted the claim as valid was also required.
FN73. J.App. 164-166.
FN74. J.App. 165.
FN75. J.App. 166.
FN76. J.App. 166.
FN77. J.App. 166.
FN78. 43 C.F.R. ss 4700 et seq. (1976).
FN79. 43 C.F.R. s 4720.2(a) (1976).
FN80. 43 C.F.R. s 4720.2(b) (1976).
FN84. J.App. 261-262.
FN85. J.App. 261.
FN86. J.App. 261.
FN87. J.App. 261.
FN88. J.App. 261.
FN89. See text supra at notes 73-77.
FN90. See text supra at notes 78-83.
FN91. See, e.g., Griggs v. Duke Power Co., 401 U.S. 424, 433-434, 91 S.Ct. 849, 854-855, 28 L.Ed.2d 158, 165 (1971); United States v. City of Chicago, 400 U.S. 8, 10, 91 S.Ct. 18, 20, 27 L.Ed.2d 9, 12-13 (1970); Udall v. Tallman, 380 U.S. 1, 4, 85 S.Ct. 792, 795, 13 L.Ed.2d 616, 619 (1965).
FN92. Power Reactor Co. v. Electrical Workers Int'l Union, 367 U.S. 396, 408, 81 S.Ct. 1529, 1535, 6 L.Ed.2d 924, 932 (1961), quoting Norwegian Nitrogen Prods. Co. v. United States, 288 U.S. 294, 315, 53 S.Ct. 350, 358, 77 L.Ed. 796, 807 (1933), in turn quoted in Udall v. Tallman, supra note 91, 380 U.S. at 16, 85 S.Ct. at 801, 13 L.Ed.2d at 625.
FN93. Act, ss 6, 8(a), (b), 16 U.S.C. ss 1336, 1338(a), (b) (Supp. V 1975).
FN94. See General Elec. Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976).
FN95. Unemployment Compensation Comm'n v. Aragon, 329 U.S. 143, 153, 67 S.Ct. 245, 250, 91 L.Ed. 136, 145 (1946), quoted in Udall v. Tallman, supra note 91, 380 U.S. at 16, 85 S.Ct. at 801, 13 L.Ed.2d at 625.