Tuesday, February 1, 2011


The following was written in a dissent to the case involving Rock Springs Grazing Association in Wyoming and the Secretary of Interior. Horses were straying onto these private lands from public lands. Though the grazing association had called the BLM and asked for the horses to be removed, it did not happen. The horses ate forage that otherwise cattle would have eaten. The association filed suit against the secretary alleging that a taking had occurred under the fifth amendment. The court found that the horses did not interfere with using their land for cattle grazing, nor did it impeded their right to investment value of the property. Court declared that the plaintiffs were not deprived of the right to exclude the horses by building a fence. The court admitted that horses did diminish value of the property, but that is not necessarily a taking. Court ordered that no taking had occurred and the Secretary was dismissed of the associations claim.

In a dissent, Seth and Barrett argued that the case should be remanded for factual determination to find if the taking occurred because of failure for the government to remove horses from private land. The horses are a part of government property and it is stated in the Act that the government is enacted to control them.

I found this quote interesting:

"These horses are thus placed in a newly created legal category not wild animals, not strays, not migratory, not related to treaty obligations but as part of the public lands as the Supreme Court noted.......Thus they cannot be described as 'wild animals,' as the Act avoids doing this, but instead are a part of the public lands -- a 'component' thereof, a part thereof and that alone."

Using such language as found in the Act, that horses are "components of the public lands," Seth and Barrett claimed that the Government used the association's private property for a public purpose. Thus, this judge felt that the plaintiffs were entitled to compensation when that control was not initiated to prevent grazing of private lands when the horses were asked to be removed.

I found this case to be interesting and educating. I had not thought about the Wild Horse Act in comparison with the bald eagle acts or endangered species act. But two of these takings cases referred to their similarities. These acts federally protect species and there is no taking allowed, despite what injury is caused (grazing, livestock loss, crop loss).

The first time the grazing association brought this file to suit in 1984 against the prior Secretary, it was remanded for factual determination and not heard again until 1986. In that first case, a different judge dissented agreeing with the Court based partly on the fact that if the association were allowed compensation, then everyone who ever had a similar situation with other wildlife would be filing suit under the fifth amendment as well.

I don't know what became of this 1986 case. Judges Seth and Barrett's dissent made sense where the Court's decision did not. How frustrating it must be to have wild horses on your property and be unable to move them! And then they are eating your forage and possibly overgrazing your lands, but you can do nothing because of the Wild Horse Act. You must wait on the Government.

I can see why the judge dissented...(Several judges actually dissented on this case, Halloway agreed with Seth and Barrett's dissent.)


  1. Part of the equation is where are the boundaries of the HMA (I doubt if they are within said private property) and what is the law in that area (open range or closed range)?

    We have open range here and to keep unwanted livestock off of private property, the land owner builds a fence. I think the private land owner in this case needed to take partial responsibility by putting up a fence; of course that can be very expensive.

    I'm sure I'm too simplistic with that idea, but that's the way it's done here (SE Oregon), and how we keep livestock out of our alfalfa fields.

    With the Central Oregon Wild Horse Coalition, we have seen instances where there are wild horses that go through gates that have been left open and onto private property...then the BLM and/or Forest Service people close the gates and put a lock on them and refuse to open them to allow the horses back into their designated HMA and proceed to gather them.

    Cooperation by both government and private is essential.

  2. That does make sense and cooperation by both government and private landholders is required to avoid conflicts. I don't know about this case other than what I read in the file, but the association had asked several times for the Secretary to remove the horses and it didn't happen. I'm going to read about the Fallini's attempt next. I think they tried twice to bring suit alleging that a taking had occurred because the horses were damaging their water pumps and drinking their stock water.

    I guess my Law and Policy class is paying off!