Fund for Animals, Inc. v. U.S. Bureau of Land Management

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 26, 2005 Decided August 18, 2006

No. 04-5359

THE FUND FOR ANIMALS, INC., ET AL.,

APPELLANTS

v.

U.S. BUREAU OF LAND MANAGEMENT, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 01cv01903)

Howard M. Crystal argued the cause for appellants.

With him on the briefs was Eric R. Glitzenstein.

Todd S. Aagaard, Attorney, U.S. Department of Justice,

argued the cause for appellees. With him on the brief was

Katherine J. Barton, Attorney. Andrew C. Mergen, Attorney,

entered an appearance.

Before: HENDERSON, RANDOLPH, and GRIFFITH, Circuit

Judges.

Opinion for the Court filed by Circuit Judge RANDOLPH.

2

Opinion concurring in part and dissenting in part filed by

Circuit Judge GRIFFITH.

RANDOLPH, Circuit Judge: The Wild Free-Roaming

Horses and Burros Act, 16 U.S.C. §§ 1331-1340, directs the

Secretary of the Interior to “protect and manage wild free-

roaming horses and burros as components of the public lands.”

Id. § 1333(a). The Fund for Animals and others challenge the

Bureau of Land Management’s “strategy” for achieving this

statutory goal.

I.

The Bureau of Land Management (“BLM” or the

“Bureau”) “manage[s] the public lands under principles of

multiple use and sustained yield.” 43 U.S.C. § 1732(a). Since

1971, this responsibility has included oversight and management

of wild horses and burros on public lands. Congress passed the

Wild Free-Roaming Horses and Burros Act, Pub. L. No. 92-195,

85 Stat. 649 (1971) (the “Act” or the “Wild Horses and Burros

Act”), to protect those animals from “capture, branding,

harassment, or death.” 16 U.S.C. § 1331; see also Kleppe v.

New Mexico, 426 U.S. 529, 535-36 (1976) (citing legislative

history). The Act grants the Secretary of the Interior jurisdiction

over all wild free-roaming horses and burros on federal lands

and directs the Secretary to “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.” 16

U.S.C. § 1333(a). The Bureau (as the Secretary’s delegate)

carries out this function in localized “herd management areas”

(“HMAs”), 16 U.S.C. § 1332(c); 43 C.F.R. § 4710.3-1,

established in accordance with broader land use plans. Id.

§ 4710.1. There are currently 210 herd management areas in ten

western states. Responsibility for a particular herd management

area rests with the Bureau’s local field and state offices.

3

In each herd management area, the Bureau determines an

“appropriate management level” (“AML”) for the wild horse

and burro populations. 16 U.S.C. § 1333(b)(1). The Bureau

describes the appropriate management level as “the median

number of adult wild horses or burros determined through

BLM’s planning process to be consistent with the objective of

achieving and maintaining a thriving ecological balance and

multiple-use relationship in a particular herd area.” Local

Bureau offices have significant discretion to determine their own

methods of computing AML for the herds they manage. Some

treat it as the midpoint of a sustainable range, while others treat

it as a single number.

When the Bureau determines “that an overpopulation

exists on a given area of the public lands and that action is

necessary to remove excess animals,” the Wild Horses and

Burros Act requires it “immediately [to] remove excess animals

from the range so as to achieve appropriate management levels.”

16 U.S.C. § 1333(b)(2).1 Before taking such action, the Bureau

prepares a detailed “gather” plan, including an environmental

assessment in compliance with the National Environmental

Policy Act. Gather decisions are subject to administrative

appeal. 43 C.F.R. § 4770.3; id. pt. 4.

In early 1999, the Bureau recognized that a population

explosion among wild horses and burros had rendered it

incapable of achieving its statutory goals at then-current funding

levels. The nationwide wild horse and burro population was at

1

All young and healthy horses so removed are made available

for adoption and transferred to private owners after the owners have

demonstrated that the horses or burros will be treated humanely. 16

U.S.C. § 1333(b)(2)(B), (c). Other animals removed from the public

lands are destroyed, id. § 1333(b)(2)(A), (C), sold in certain

circumstances, id. § 1333(e), or placed in private long-term pasturing

arrangements.

4

least 46,000 animals or approximately 19,500 animals above

nationwide AML. In the face of “mounting distrust and

discontent with the BLM’s management of the Wild Horse and

Burro Program,” the Bureau developed a strategy to achieve

nationwide AML and justify increased funding for the program.

After soliciting advice from state Bureau offices about their

specific needs and reviewing several options, the national office

settled on a plan that would, if implemented, achieve nationwide

AML in five years at a cost of an additional $9 million per fiscal

year from 2001 through 2005.

This plan was presented to Congress in February 2000 as

a Presidential Budget Initiative. Entitled “The ‘Restoration of

Threatened Watersheds’ Initiative” and subtitled “Living

Legends in Balance with the Land: A Strategy to Achieve

Healthy Rangelands and Viable Herds,” the five-page document

informed Congress that “[o]ne of the major threats to watershed

health is an overabundance of wild horses and burros on

rangelands” and that “at current funding capability and adoption

demand” the populations of these animals “will increase at a rate

faster than our ability to remove excess animals.” The Bureau

explained that the additional appropriation would enable the

field offices to meet removal targets based on an initial four-

year gather schedule. This would result in a large number of

removals in the early years of implementation and a gradual

decline to maintenance levels. The plan also contemplated

eliminating age restrictions on removals,2 enhanced marketing

of animals and adoption events, and an expanded program of

training and gelding for difficult-to-adopt animals.

Congress approved the needed funding for the program

and the various field offices began implementing individual

gathers on a herd-by-herd basis. The field offices used a

2

The Bureau had, in the past, concentrated on removing

younger animals in order to maximize adoptions.

5

common population model to determine how many animals to

remove based on an initial four-year gather schedule. This

number was just a starting point. The final determinations

concerning the number of animals to remove and the timing of

such removals was left to the field offices to determine based on

the particular characteristics of each herd and geography.

In September 2001, the Fund for Animals, the Animal

Legal Defense Fund, and others (collectively the “Fund for

Animals” or the “Fund”) filed suit in the district court to enjoin

the Bureau from continuing to implement the strategy. The

complaint alleged that the Bureau violated the National

Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321-4347,

by implementing the strategy without first preparing an

environmental impact statement, Am. Compl. ¶¶ 89-91, and that

the Bureau violated the Wild Horses and Burros Act by adopting

a strategy that would reduce herd populations to below their

appropriate management levels. Id. ¶¶ 92-94.3 The complaint

also objected to seven specific gathers of wild horses and burros

carried out after Congress appropriated the funds. Id. ¶¶ 95-102.

In February 2002, while the complaint was pending, an

assistant director of the Bureau issued an “Instruction

Memorandum” to the field offices “to communicate guidance

and policy” regarding how the Bureau would achieve AML in

herd management areas by 2005. The memorandum included a

chart containing an “estimate” for each state of the number of

horses to be removed; stated that horses five years and younger

would be removed first, those ten years and older next, followed

by horses six to nine years of age; and outlined the data field

offices must collect on each herd in order to prepare “Population

3

The Fund also challenged the Bureau’s “pattern, practice and

policy of removing wild horses and burros pursuant to the Restoration

Strategy.” Am. Compl. ¶ 103 (emphasis added). Because this claim

is not independent of the strategy, we do not address it separately.

6

Management Plans,” which “will detail the population

objectives for the herd(s) and the rationale for those objectives.”

The instruction memorandum stated that it would be “effective

for all gathers beginning upon receipt and will expire on

September 30, 2003.” The Bureau’s Manual specifies that

instruction memoranda “are of a short-term, temporary nature”

and are “in effect for a short period of time.” The February

2002 memorandum explained that the Bureau’s policy regarding

the removal of wild horses is “reviewed and revised each year

in an effort to balance the need to achieve AML, minimize the

time excess animals are held in BLM facilities awaiting

adoption and enhance our ability to place those animals into

private maintenance and care.”

After the Instruction Memorandum issued, the Fund filed

a “Supplemental Complaint” alleging that before the

memorandum became effective the Bureau was bound to issue

an environmental impact statement or an environmental

assessment. The supplemental complaint sought a preliminary

and permanent injunction ordering the Bureau not to take any

steps to implement the memorandum and directing it to prepare

an environmental impact statement pursuant to NEPA.

Insofar as the action dealt with the strategy, the district

court dismissed for lack of subject matter jurisdiction, finding

that the strategy was not a reviewable “final agency action.”

Fund for Animals v. Bureau of Land Mgmt., 357 F. Supp. 2d

225, 229 (D.D.C. 2004). As to the specific removal actions, the

district court found that the Fund’s challenges were moot. Id. at

230.

II.

The Fund takes exception to several of the Bureau’s

policies for carrying out its wild horse and burro management

7

duties. The federal courts are not authorized to review agency

policy choices in the abstract. In the absence of a specific

statutory review provision – neither the Wild Horses and Burros

Act nor NEPA contains one – the Administrative Procedure Act

provides a generic cause of action to “[a] person suffering legal

wrong because of agency action, or adversely affected or

aggrieved by agency action.” 5 U.S.C. § 702 (emphasis added).

Review under the APA is further limited to “final agency action

for which there is no other adequate remedy in a court.” Id.

§ 704 (emphasis added). Whether there has been “agency

action” or “final agency action” within the meaning of the APA

are threshold questions; if these requirements are not met, the

action is not reviewable.4 See Nat’l Ass’n of Home Builders v.

Norton, 415 F.3d 8, 13 (D.C. Cir. 2005); DRG Funding Corp. v.

Sec’y of Housing & Urban Dev., 76 F.3d 1212, 1214 (D.C. Cir.

1996).

The Fund cites two documents that it claims are final

agency action. One of these documents is the “Instruction

Memorandum” issued by the Bureau’s Assistant Director for

4

Although the final agency action requirement “has been

considered jurisdictional” because, without it, “the court . . . cannot

reach the merits of the dispute,” DRG Funding Corp. v. Sec’y of

Housing & Urban Dev., 76 F.3d 1212, 1214 (D.C. Cir. 1996), the

APA grants a cause of action rather than subject matter jurisdiction,

see Califano v. Sanders, 430 U.S. 99, 107 (1977). The district court

therefore erred in dismissing the Fund’s claim for lack of subject

matter jurisdiction pursuant to FED. R. CIV. P. 12(b)(1). The error is

of no consequence: “[E]ven though there was no basis for dismissal

under Rule 12(b)(1), we may properly affirm the District Court’s

judgment pursuant to Rule 12(b)(6).” Reliable Automatic Sprinkler

Co. v. Consumer Prod. Safety Comm’n, 324 F.3d 726, 731 (D.C. Cir.

2003). Because the parties presented “matters outside the pleading,”

which the district court did not exclude, FED. R. CIV. P. 12(b), the

court should have treated the motion to dismiss as a motion for

summary judgment.

8

Renewable Resources and Planning. This memorandum

“communicate[s] guidance and policy on how BLM will achieve

AML on all HMA’s [sic] by 2005.” By its terms, the

memorandum – a “short-term, temporary” document according

to the Bureau’s manual – expired on September 30, 2003.5 In its

Supplemental Complaint, the Fund claims only that the memo

was issued in violation of NEPA. Because the memo has

expired, this claim is moot. See In re Bluewater Network, 234

F.3d 1305, 1314 (D.C. Cir. 2000) (“Petitioners do not here

challenge the 1997 temporary regulations, either for what they

did or did not do; those regulations have expired. Whatever

issues could have been raised regarding their legality are

moot.”); see also Worth v. Jackson, 451 F.3d 854, 860-61 (D.C.

Cir. 2006). The government’s concession that “the general

national planning approach set forth in the February 2002

memorandum continues to serve as guidance to the field for the

conduct of specific gather and removal decisions,” Br. of

Appellees at 25 n.6, cannot support the weight the Fund would

place on it.6 The “general national planning approach” is the

5

As the memorandum itself makes clear, the Bureau’s

selective removal policy regarding wild horses is “reviewed and

revised each year in an effort to balance the need to achieve AML,

minimize the time excess animals are held in BLM facilities awaiting

adoption and enhance our ability to place those animals into private

maintenance and care,” which is doubtless why the memorandum was

in effect for such a short period of time.

6

Neither can it support our partially dissenting colleague’s

argument. The government notes that “the record provides no

evidence of [the Memorandum’s] continued implementation.” Br. of

Appellees 25 n.6. The absence of record evidence does not create a

genuine issue of material fact. This is especially so with respect to

questions of mootness. See, e.g., Sierra Club v. EPA, 292 F.3d 895,

899 (D.C. Cir. 2002); Foretich v. United States, 351 F.3d 1198, 1210

(D.C. Cir. 2003). The Fund states in a footnote that “BLM has never

claimed that it is no longer implementing the . . . Memorandum.” Br.

9

same approach put forward in the budget document, which we

discuss next.

This leaves the Fund with the “FY 2001 Presidential

Budget Initiative.” On its surface, the document was a budget

request to Congress. The record confirms that it was intended

as such. In the face of mounting pressure to fix systemic

problems in the Wild Horse and Burro Program, the Bureau

determined that it could do so only with additional funding. The

Budget Initiative explains why the current funding amount is

insufficient for the Bureau to achieve appropriate management

levels. To justify its request for an additional “$9,000,000 [per]

year over current funding levels sustained through 2005,” the

Budget Initiative lays out the key elements of the Bureau’s

“strategy”: a four year gather schedule for all HMAs, removal

of animals without age restrictions, a removal target of 12,855

animals in the first year and then a significant drop-off,

enhanced marketing of animals and adoption events, training

and gelding difficult-to-adopt animals, and long-term pasturing

for unadoptable animals. Congress approved this request by

appropriating the needed funds in 2001 and 2002.7 See J.A. 101;

Dep’t of the Interior and Related Agencies Appropriations Act

of 2001, Pub. L. No. 106-291, tit. I, 114 Stat. 922, 922-23

(2000); Dep’t of the Interior and Related Agencies

of Appellants 12 n.4. This is hardly “evidence” that the expiration

date does not mean what it says.

7

This in itself poses a problem for the Fund: If Congress

approved an agency program, how can it be that a court should review

the program to determine if it complies with federal law? “Congress

may ratify an agency action through appropriation acts.” Schism v.

United States, 316 F.3d 1259, 1289 (Fed. Cir. 2002) (en banc).

Because the appropriations here did not identify the wild horses and

burros program as a line item, however, we hesitate to read too much

into Congress’s action. See id. at 1290-91 (requiring clear statement

of Congressional approval).

10

Appropriations Act of 2002, Pub. L. No. 107-63, tit. I, 115 Stat.

414, 414-15 (2001).

The Bureau’s approved budget request is not “agency

action” within the meaning of § 702, much less “final agency

action” within the meaning of § 704. The APA defines an

“agency action” as “the whole or a part of an agency rule, order,

license, sanction, relief, or the equivalent or denial thereof.” 5

U.S.C. § 551(13). This list is expansive. It is “meant to cover

comprehensively every manner in which an agency may

exercise its power.” Whitman v. Am. Trucking Ass’ns, Inc., 531

U.S. 457, 478 (2001). But we “have long recognized that the

term [agency action] is not so all-encompassing as to authorize

us to exercise judicial review over everything done by an

administrative agency.” Indep. Equip. Dealers Ass’n v. EPA,

372 F.3d 420, 427 (D.C. Cir. 2004) (internal quotation marks

and alteration omitted). Much of what an agency does is in

anticipation of agency action. Agencies prepare proposals,

conduct studies, meet with Members of Congress and interested

groups, and engage in a wide variety of activities that comprise

the common business of managing government programs. Id.

Budget requests seek funding for an agency to exercise

its power. Once Congress appropriates the funds, the agency

must determine how to use the money consistent with the

appropriation. The agency’s proposal to Congress, developed

to secure the funds, may serve as a useful planning document,

but it is not a “rule” – that is, “an agency statement of general or

particular applicability and future effect designed to implement,

interpret, or prescribe law or policy.” 5 U.S.C. § 551(4). It does

not “implement, interpret, or prescribe” any “law or policy.”

See Indep. Equip. Dealers Ass’n, 372 F.3d at 428; see also

Indus. Safety Equip. Ass’n v. EPA, 837 F.2d 1115, 1120 (D.C.

Cir. 1988). And it is not an “order,” or a “license,” or a

“sanction,” or “relief.” 5 U.S.C. § 551(13). The most that can

11

be said is that it outlines the goals and methods of an

administrative program. The Wild Horses and Burros Program,

according to the “FY2001 Presidential Budget Initiative,”

proposed rounding up 12,855 animals in its first year, trying to

market those animals through adoption events, and so on.

Judicial review of such budget initiatives would wreak havoc

with the normal operations of agencies and the executive branch.

Agencies propose all kinds of programs in the budget process,

and they are not the only actors in that process. The President

decides which agency budget requests to forward to Congress.

See Judicial Watch v. Dep’t of Energy, 412 F.3d 125, 129-30

(D.C. Cir. 2005). This is doubtless why the Bureau’s proposal

was called a “Presidential Budget Initiative.” It is impossible to

believe that the APA opened this process to judicial scrutiny as

a reviewable “agency action.”

To rule otherwise would be contrary to Lujan v. National

Wildlife Federation, 497 U.S. 871, 890-94 (1990). Courts may

“intervene in the administration of the laws only when, and to

the extent that, a specific ‘final agency action’ has an actual or

immediately threatened effect.” 497 U.S. at 894. The individual

roundups might qualify; the Bureau’s budget proposal does not.

When the Bureau sought funding from Congress, it did not harm

or affect the plaintiffs in this case; and they were not harmed or

affected when Congress appropriated the $9 million. This is

very unlike a substantive rule that, as a practical matter, requires

the parties affected to adjust their conduct as soon as the rule is

issued. The budget request is a broad “programmatic” statement

that Lujan keeps from our review. Id. at 891.

Unlike “circumscribed, discrete agency actions” that are

the ordinary subjects of judicial review, Norton v. S. Utah

Wilderness Alliance, 542 U.S. 55, 62 (2004), the Bureau’s

strategy represents the sum of “many individual actions,”

including some “yet to be taken.” Lujan, 497 U.S. at 893; see

12

also Cobell v. Norton, 240 F.3d 1081, 1095 (D.C. Cir. 2001);

Indep. Petroleum Ass’n of Am. v. Babbitt, 235 F.3d 588, 595

(D.C. Cir. 2001). The Fund identifies four “elements” of the

Budget Initiative that it claims “require specific agency

conduct”: removing animals to achieve AML in all HMAs,

implementing a four-year gather schedule, removing animals

regardless of age, and reducing populations to forty percent

below AML. Even if the Bureau’s budget request were

somehow considered to be a regulation – the Bureau disputes

that these “elements” of the strategy are binding upon the field

offices actually making gather decisions – there must still be

“some concrete action applying the regulation to the claimant’s

situation in a fashion that harms or threatens to harm him.”

Lujan, 497 U.S. at 891. As we have said, the cited “elements”

had no such consequence.8

The budget proposal represents the Bureau’s latest plan

to comply with its broad statutory mandate. The Supreme Court

addressed an analogous situation in Norton v. Southern Utah

Wilderness Alliance, 542 U.S. at 61-65.9 The Court reiterated

the point that before there may be judicial review there must be

a “discrete” “agency action.” Id. at 62, 64. In a portion of the

8

The budget initiative is therefore quite unlike the policy

guidance we reviewed in Appalachian Power Co. v. EPA, 208 F.3d

1015 (D.C. Cir. 2000). EPA’s guidance document amounted to a

legislative rule – subject to notice-and-comment rulemaking – because

it required the parties affected to adjust their conduct as soon as it was

announced. See id. at 1023, 1028.

9

Although the complainants in Southern Utah sought to

compel agency action allegedly withheld, see 5 U.S.C. § 706(1), the

Court’s reasoning applies with equal force to claims regarding action

taken under § 706(2). The Court stated that the requirement of

discrete “agency action” is the same regardless whether a plaintiff

challenges alleged action taken or withheld. See Southern Utah, 542

U.S. at 64-65.

13

opinion that almost seems to anticipate this case, the Court

hypothesized a plaintiff who alleged “that the Secretary had

failed to ‘manage wild free-roaming horses and burros in a

manner that is designed to achieve and maintain a thriving

natural ecological balance.’” Id. at 67 (quoting 16 U.S.C.

§ 1333(a)). “The prospect of pervasive oversight by federal

courts over the manner and pace of agency compliance with

such congressional directives,” the Court stated, “is not

contemplated by the APA.” Id. Yet that is precisely the step

that the Fund asks us to take in this case.

Both Lujan and Southern Utah were suits challenging

land use plans formulated pursuant to the Federal Land Policy

and Management Act of 1976, and the Act’s mandate to

“manage the public lands under principles of multiple use and

sustained yield.” 43 U.S.C. § 1732(a). The Court held that the

plans themselves are generally unreviewable; it is only specific

actions implementing the plans that are subject to judicial

scrutiny. “[A] land use plan is generally a statement of

priorities; it guides and constrains actions, but does not . . .

prescribe them.” Southern Utah, 542 U.S. at 71. The Wild

Free-Roaming Horses and Burros Act thus directs the Secretary

to manage the animals “as an integral part of the natural system

of the public lands,” 16 U.S.C. § 1331, “to achieve and maintain

a thriving natural ecological balance on the public lands,” id.

§ 1333(a), and to “preserve and maintain . . . [a] multiple-use

relationship” with the land, id. § 1332(f)(2). The Bureau carries

out its wild horse and burro management duties as part of the

broader land use planning process. See 43 C.F.R. § 4700.0-2

(“The objectives [of the program] are management of wild

horses and burros . . . under the principle of multiple use . . ..”);

id. § 4700.0-6(b) (“Wild horses and burros shall be considered

comparably with other resource values in the formulation of

land use plans.”); id. § 4710.1 (“Management activities affecting

wild horses and burros . . . shall be in accordance with approved

14

land use plans . . ..”). The budget initiative reflects land use

planning. It contains the outlines of a reinvigorated wild horses

and burros program and sets broad goals and strategies. Like the

land use plans in Lujan and Southern Utah, it is “[a] statement

by BLM about what it plans to do, at some point, provided it has

the funds and there are not more pressing priorities.” Southern

Utah, 542 U.S. at 71. As such, it “cannot be plucked out of

context and made a basis for suit” under the APA. Id.

Our conclusion that the Bureau’s budget request is not

reviewable under the APA is of a piece with this court’s

consistent refusal to review agency orders “that do[] not

[themselves] adversely affect complainant but only affect[] his

rights adversely on the contingency of future administrative

action.” DRG Funding Corp., 76 F.3d at 1214 (internal

quotation marks omitted); see, e.g., Reliable Automatic

Sprinkler Co. v. Consumer Prod. Safety Comm’n, 324 F.3d 726,

731-33 (D.C. Cir. 2003); AT&T Co. v. EEOC, 270 F.3d 973,

975-76 (D.C. Cir. 2001). As is the case with more formal land

use plans, there is “considerable legal distance” between the

appropriation of funds to implement a gather “strategy” and the

actual removal of wild horses and burros. Ohio Forestry Ass’n,

Inc. v. Sierra Club, 523 U.S. 726, 730 (1998). The field office

responsible for a particular herd management area must conduct

its own surveying and land use planning; it must propose a

gather and provide notice to interested parties; if those parties

object, it must consider their objections and render a decision.

Although the “strategy” likely guides this process, it does not

carry the legal significance the Fund assigns to it. The elements

of the strategy to which the Fund objects “do not command

anyone to do anything or to refrain from doing anything; they do

not grant, withhold, or modify any formal legal license, power,

or authority; they do not subject anyone to any civil or criminal

liability; they create no legal rights or obligations.” Id. at 733.

Our long-standing practice in circumstances like this is to

15

require the complaining party to challenge the specific

implementation of the broader agency policy.

III.

The Fund’s complaint did object to seven specific

gathers allegedly carried out “in accordance with the Restoration

Strategy.” Am. Compl. ¶¶ 95-102. The Fund requested relief –

“permanently enjoining [the Bureau] from taking any further

steps to implement its Restoration Strategy,” id. at 30 – that can

fairly be read to include an injunction against carrying out the

specified removal actions. But those gathers have been

completed. It is “impossible for the court to grant any effectual

relief whatever” with respect to the challenged gathers.

Beethoven.com LLC v. Librarian of Congress, 394 F.3d 939,

950 (D.C. Cir. 2005) (internal quotation marks omitted). They

cannot be undone.

This aspect of the case cannot be saved from mootness

on the ground that it raises “issues or wrongs capable of

repetition yet evading review.”10 People for the Ethical

Treatment of Animals, Inc. v. Gittens, 396 F.3d 416, 421 (D.C.

Cir. 2005) (“PETA”) (internal quotation marks omitted).

Particular decisions to remove wild horses and burros are highly

fact-specific. How a herd will be managed in the future after the

initial culling is anyone’s guess, as the Bureau makes clear. It

may depend on climate, on how many new births occur, on the

mortality rate of the horses, on whether fertility control is used

as a management tool, and on many other factors specific to a

herd and to the area in which it is located. Once appropriate

10

Although the Fund did not press this specific exception to

the mootness doctrine in the district court, it did so in this court. As

the Bureau rightly conceded at oral argument, this court has authority

to address the exception as a matter of our Article III jurisdiction. See

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 95 (1998).

16

management levels have been achieved, the “schedule for

maintaining those AMLs will be developed based on the

individual needs of each herd.” If there are to be more roundups

in the future – itself an open question – it remains to be seen

whether they will be of the same magnitude as those which have

come before, and whether the same criteria are applied. As in

PETA, the “essential point is that the case before us is highly

dependent upon a series of facts unlikely to be duplicated in the

future,” id. at 424, particularly since the 2001 budget request

proposed only a four-year gather program.

* * *

Because the Fund does not challenge any justiciable

agency action, the judgment of the district court is affirmed.

So ordered.

GRIFFITH, Circuit Judge, concurring in part and dissenting

in part:

The majority devotes almost all of its analysis, see Maj. Op.

at 9-15, to deciding whether an agency’s budget request to

Congress constitutes “final agency action” under the

Administrative Procedure Act (“APA”), see 5 U.S.C. § 704. I

agree fully with the majority that a budget request made by a

federal agency to Congress, in and of itself, is not subject to

judicial review under the APA.

The majority gives short shrift, however, to what happened

after Congress appropriated the funds requested by the Bureau of

Land Management (“BLM”). Through the Wild Free Roaming

Horses and Burros Act (“WHBA” or the “Act”), 16 U.S.C.

§ 1331, et seq., Congress has given the BLM a broad mandate:

“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,” 16 U.S.C. § 1333(a). After

completing an extensive review of its management of wild

horses and burros throughout the American West, and receiving

funds to pursue a new course, the BLM’s central leadership in

Washington, D.C. issued “Instruction Memorandum No. 2002-

095” (the “Instruction Memorandum” or “Memorandum”),

which sets out the agency’s final plan for the Restoration

Strategy and the specific standards field employees are to use in

managing wild horses through the year 2010. Specifically, the

Memorandum sets forth the particular types and quantities of

horses that agency employees are to remove under the BLM’s

current interpretation of the WHBA.

The majority never squarely addresses whether the

Instruction Memorandum constitutes final agency action, see

Maj. Op. at 8, and instead devotes its analysis to the agency’s

earlier budget request, see id. at 9-15. But at base, this case is

nothing more than a rather ordinary request for review of

regulatory criteria promulgated by an agency in carrying out a

2

congressional mandate. A preliminary budget request sent to

Congress surely does not constitute final agency action, but that

request does not immunize from judicial review an agency’s

later, final order implementing its statutory authority.

To resolve the Fund’s claim predicated upon the

Memorandum, the majority raises a mootness issue sua sponte,

but without providing the parties an opportunity to respond. The

majority concludes that, as a matter of law, an expiration date

printed on the Memorandum makes it “doubtless . . . [that] the

[M]emorandum was [only] in effect for . . . a short period of

time,” Maj. Op. at 8 n.5, despite the BLM’s acknowledgment in

its brief that it “does not dispute . . . that the general national

planning approach set forth in the . . . [M]emorandum continues

to serve as guidance to the field for the conduct of specific gather

and removal decisions,” Appellees’ Br. at 25 n.6. In the

majority’s view, it is “doubtless” that the Fund’s claim is moot

even where other terms of the Memorandum purport to provide

the agency’s governing interpretation of the Act through the year

2010.

As the Government notes in its brief, no party has developed

a record on the majority’s expiration argument, see Appellees’

Br. at 25 n.6, because no party has made that argument. As we

have said before: “‘The premise of our adversarial system is that

appellate courts do not sit as self-directed boards of legal inquiry

and research, but essentially as arbiters of legal questions

presented and argued by the parties before them.’” United States

v. West, 392 F.3d 450, 459 (D.C. Cir. 2004) (quoting Carducci

v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983)). The majority

runs afoul of that maxim by dismissing the Fund’s claim on

mootness grounds absent any development of that issue by the

parties.

Undoubtedly, even where “no party asserts that the case is

. . . moot, we are obliged to address the issue sua sponte because

3

mootness goes to the jurisdiction of this court.” Mine

Reclamation Corp. v. FERC, 30 F.3d 1519, 1522 (D.C. Cir.

1994) (citing Iron Arrow Honor Soc’y v. Heckler, 464 U.S. 67,

70 (1983) (per curiam)). With respect to fact-dependant

jurisdictional issues, however, “it is our general practice to allow

full development and presentation in the district court of matters

that surface initially on appeal” and “[w]e . . . therefore remand

. . . to the district court for a current ruling on whether . . .

threshold Article III requirements are satisfied.” Women’s

Equity Action League v. Bell, 743 F.2d 42, 44 (D.C. Cir. 1984)

(citing Dandridge v. Williams, 397 U.S. 471, 475-76 n. 6 (1970))

(internal citation omitted).

By not following that general practice of allowing the parties

to fairly join this issue, the majority ends this case on mootness

grounds despite the BLM’s concession that the “general national

planning approach set forth in the February 2002 [M]emorandum

continues to serve as guidance to the field,” Appellees’ Br. at 25

n.6, and that the Restoration Strategy, which the Instruction

Memorandum by its terms implements, see Joint Appendix

(“JA”) at 113, 118, is “intended . . . to provide guidance for the

national wild horse and burro program for some unspecified

period of time,” Appellees’ Br. at 28 (emphasis added). The

Instruction Memorandum was doubtless in effect when the

parties briefed summary judgment in the District Court. The

BLM represents in its brief, however, that its Instruction

Memoranda are “reviewed annually.” Id. at 25. That annual

reviewing process, combined with the fact that the agency

acknowledges that it still follows the approach set forth in the

Memorandum, suggests that either this Memorandum is still in

effect or the agency has issued another memorandum setting

forth the same, continuing legal interpretation of the WHBA.

The parties will have no chance to develop that issue, however,

because the majority has declined to allow the parties an

opportunity to develop a record on mootness.

4

The majority, citing to the summary judgment standard,

concludes that there is no “genuine issue of material fact”

regarding whether the Memorandum is moot. See Maj. Op. at 8-

9 & n.6. At summary judgment, however, we are to “view the

evidence in the light most favorable to the nonmoving party and

draw all reasonable inferences in its favor.” Mastro v. Potomac

Elec. Power Co., 447 F.3d 843, 850 (D.C. Cir. 2006) (citing

Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150

(2000)). There appears to be “evidence” that the “expiration date

does not mean what is says,” Maj. Op. at 9 n.6 (quotation marks

omitted), where, as discussed below, the Memorandum by its

terms provides instructions to BLM field employees for the years

2006, 2007, 2008, 2009, and 2010—years that are hardly

moot—and where the BLM acknowledges that the Strategy,

which the Memorandum sets forth, was “intended . . . to provide

guidance for the national wild horse and burro program for some

unspecified period of time.” Appellees’ Br. at 28.

But the majority’s “no evidence” argument is a red herring.

Even if the majority were correct on that score, it would hardly

be surprising that a record would be incomplete on an issue

never raised or challenged by any party. Although it is true that

“the plaintiff must present affirmative evidence in order to defeat

a properly supported motion for summary judgment,” that is only

so “as long as the plaintiff has had a full opportunity to conduct

discovery.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257

(1986); see, e.g., Khan v. Parsons Global Servs., Ltd., 428 F.3d

1079, 1087 (D.C. Cir. 2005) (this “court has long recognized that

a party opposing summary judgment needs a ‘reasonable

opportunity’ to complete discovery before responding to a

summary judgment motion and that ‘insufficient time or

opportunity to engage in discovery’ is cause to defer decision on

the motion”) (quoting Martin v. Malhoyt, 830 F.2d 237, 256

(D.C. Cir. 1987)). The majority’s sua sponte grant of summary

judgment for “[t]he absence of record evidence,” Maj. Op. at 8

5

n.6, is particularly problematic because it comes on appeal, with

the Fund having had no notice of the majority’s argument or

possibility of seeking discovery or introducing evidence in

response. See Ramirez de Arellano v. Weinberger, 745 F.2d

1500, 1537 & n.163 (D.C. Cir. 1984) (en banc) (“Unless the new

issue uncovered by the appellate court was one which was

clearly framed by the proceedings below so that the parties had

a legitimate chance to submit all relevant materials and argue

their implications, it is clearly unjust for the appellate court to

direct the issuance of summary judgment on a new issue raised

sua sponte on appeal.”) (collecting citations), vacated on other

grounds, 471 U.S. 1113 (1985).

The very legal authority relied upon by the majority shows

where the majority errs. Contrary to the majority’s suggestion,

it is the BLM—and not the Fund—that bears the burden, at this

stage, of demonstrating that the Agency has abandoned the

course set forth in the Memorandum. See Maj. Op. at 8 (relying

upon Worth v. Jackson, 451 F.3d 854, 860 (D.C. Cir. 2006); In

re Bluewater Network, 234 F.3d 1305, 1314 (D.C. Cir. 2006)).

As we recently noted in Worth:

“it is well settled that a defendant’s voluntary cessation

of a challenged practice does not deprive a federal court

of its power to determine the legality of the practice”

except when the defendant meets its “heavy burden of

persuading the court that the challenged conduct cannot

reasonably be expected to start up again.”

451 F.3d at 860 (quoting Friends of the Earth, Inc. v. Laidlaw

Envtl. Servs., Inc., 528 U.S. 167, 189 (2000) (alterations

omitted)) (quotation marks and alteration omitted). True, as the

majority suggests, an agency can abandon its own guidance and

no longer follow a memorandum with an expiration date. But

the record does not establish, at this stage, that the Instruction

Memorandum has been withdrawn. The BLM has not attempted

6

to meet its “heavy burden,” see Laidlaw, 528 U.S. at 189, of

persuading this Court that it will not continue to follow the

Instruction Memorandum—because it concedes, contrary to the

majority’s suggestion, that it does continue to follow “the general

national planning approach set forth in the . . . [M]emorandum.”

Appellees’ Br. at 25 n.6. If given a chance to develop the

majority’s mootness issue in the District Court, the BLM would

be able to advise on which parts of the Instruction Memorandum

it follows, and the Fund would be able to address, and develop

a record on, whether any recent BLM Instruction Memoranda

evidence that the BLM continues to follow the same approach

the Fund challenges. But despite the substantial resources

invested in this litigation, and despite our general approach of

remanding such fact-intensive Article III issues that have gone

previously unchallenged, this case ends today without any of the

parties having been given a chance to address mootness. Instead,

the parties are left with one paragraph from the majority

asserting mootness, see Maj. Op. at 7-9, and the BLM is not held

to meeting its “heavy burden,” see Laidlaw, 528 U.S. at 189, of

demonstrating that the Fund’s claim is moot.

Given the BLM’s acknowledgment that it still follows the

“general national planning approach” set forth in the

Memorandum, Appellees’ Br. at 25 n.6, it is clear, however, that

this approach—whether distributed to field employees through

the Instruction Memorandum or a version of the Memorandum

with a new expiration date—constitutes “final agency action”

under the precedent of both the Supreme Court and this Circuit,

see 5 U.S.C. § 704. As the Supreme Court has reminded us,

“[t]he particular label placed upon [an agency order] by [an

agency] is not necessarily conclusive, for it is the substance of

what the [agency] has purported to do and has done which is

decisive.” Columbia Broad. Sys. v. United States, 316 U.S. 407,

416 (1942); see also, e.g., Croplife Am. v. EPA, 329 F.3d 876,

883 (D.C. Cir. 2003) (same); General Elec. Co. v. EPA, 290 F.3d

7

377, 383-85 (D.C. Cir. 2002) (same); Envtl. Def. Fund v.

Gorusch, 713 F.2d 802, 816 (D.C. Cir. 1983) (same); Chamber

of Commerce of U.S. v. OSHA, 636 F.2d 464, 468 (D.C. Cir.

1980) (same).

“Our cases . . . make clear that an agency pronouncement

will be considered binding as a practical matter if it either

appears on its face to be binding, or is applied by the agency in

a way that indicates it is binding.” General Elec., 290 F.3d at

383 (internal citations omitted) (citing Appalachian Power Co.

v. EPA, 208 F.3d 1015, 1023 (D.C. Cir. 2000); McLouth Steel

Prods. Corp. v. Thomas, 838 F.2d 1317, 1321 (D.C. Cir. 1988)).

As the BLM’s concession indicates, the latter is certainly present

here: BLM employees in the field still must follow this agency

directive. Even with respect to the first category, the Instruction

Memorandum the majority holds has been withdrawn appears on

its face to still be binding, or there is at least a question of fact to

be resolved on that score. Although given scant attention by the

majority opinion, the text of the Memorandum provides:

UNITED STATES DEPARTMENT OF THE INTERIOR

BUREAU OF LAND MANAGEMENT

WASHINGTON, D.C. 20240

***

Instruction Memorandum No. 2002-095

Expires: 09/30/2003

To: All Field Officials (except Alaska)

From: Assistant Director, Renewable Resources and

Planning

Subject: Gather Policy & Selective Removal Criteria for

Wild Horses

8

***

To achieve and maintain [appropriate management

levels (“AML”)] on all [herd management areas

(“HMAs”)] a four year gather cycle will be followed for

each HMA.

***

Fiscal 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010

Year

State Target Actual Target AWP Target Target Target Target Target Target Target Target

AZ 600 646 600 640 326 290 290 290 290 290 290 290

CA 1949 2021 1678 1410 729 249 654 400 458 177 564 262

CO 25 318 452 330 115 0 0 419 67 0 0 418

ID 235 163 68 110 0 368 91 43 0 387 88 43

MT 0 46 121 0 0 0 0 74 0 0 0 80

NV 5222 6329 6322 7667 6095 6085 3365 1727 3011 2287 2557 1557

NM 0 15 0 0 0 0 0 0 0 0 0 0

OR 833 692 709 735 213 288 723 336 283 422 732 285

UT 1990 794 701 715 867 624 887 353 509 268 792 337

WY 2001 1995 837 1650 1337 1208 960 301 582 550 1005 266

Totals 12855 13019 11488 13257 9682 9112 6970 3943 5200 4381 6028 3538

Budget projections for achieving and maintaining AML

were based on these removal rates. It is important that

each state schedule gathers based on these removal

targets as closely as possible so that the overall

program will stay within budget projections. . . . Any

changes from this schedule will have to be coordinated

with WO-260 and approved by the Assistant Director

for Renewable Resources and Planning (AD-200).

JA at 113-14 (emphasis added). After directing field employees

9

to meet those “removal rates” through the year 2010 “as closely

as possible,” the Instruction Memorandum proceeds to set out

“selective removal requirements” that “are in effect for all wild

horses to be placed into BLM’s national adoption program or

long term holding facilities.” Id. at 115 (emphasis added).

According to those requirements, “wild horses will be removed

from within HMAs in the following priority order:”

1. Age Class Five Years and Younger

Wild horses five years of age and younger may be

removed and placed into the national adoption program.

2. Age Class Ten Years and Older

Wild horses ten years of age and older will be removed

and placed into long term holding.

***

3. Age Class Six to Nine Years

Wild horses aged six to nine years old should be

removed last and only if the HMA cannot achieve AML

without their removal.

Id. at 116 (emphasis added). The Memorandum provides

animals will be “unadoptable” if they have “disease[s]; serious

congenital or genetic defects; physical defects due to previous

injuries; recent, but not life threatening injuries; or other factors

that may prevent adoption.” Id. Such animals “will” be

“[r]eleased in an HMA (if defects or disease would not likely

compromise [the] existing herd[])” or, alternatively, “[d]estroyed

if the humane destruction criteria . . . are satisfied.” Id.

It serves only a limited purpose for me to address the BLM’s

10

arguments why the Instruction Memorandum does not constitute

final agency action under the APA, given that the majority

disposes of this issue on its own expiration ground. The BLM

argues that the Memorandum (1) does not represent “the

consummation of the agency’s decisionmaking process about the

gather and removal of animals from the public lands” because

field officers have “further flexibility at the project-specific

level” as to which specific animals within individual herds to

remove, Appellees’ Br. at 26; (2) contains only flexible

guidelines for field officers to apply in choosing which horses to

remove, id. at 27-28; and (3) is merely for “internal use by BLM

employees and has no binding legal force or effect,” id. at 25-26

(quotation marks omitted).

In Bennett v. Spear, the Supreme Court set forth a two-part

test for determining what constitutes “final agency action” under

section 704 of the APA: “[f]irst, [an] action must mark the

consummation of the agency’s decisionmaking process—it must

not be of a merely tentative or interlocutory nature,” 520 U.S.

154, 177-78 (1997) (quotation marks and internal citation

omitted), and “second, [an] action must be one by which rights

or obligations have been determined, or from which legal

consequences will flow,” id. at 178 (quotation marks omitted).

The BLM’s Instruction Memorandum meets that test. The

record reveals that the Memorandum was the result of a

comprehensive decisionmaking process. After studying for some

time the number of wild horses and burros living throughout the

West, the BLM concluded in Spring 2000 that numerous areas

were significantly overpopulated. Implementing the BLM’s

statutory authority under the WHBA to manage overpopulation,

BLM officers set out to develop the Restoration Strategy. See

Maj. Op. at 3-5. In determining how to remedy overpopulation,

the BLM consulted with the Wild Horse and Burro Advisory

Board—a congressionally-provided board of experts, see 16

U.S.C. § 1337; all of its wild horse and burro specialists;

11

participants at two national wild horse and burro meetings; and

finally the public. The Memorandum specifically indicates that

“[t]his review has been completed” and that “all comments

[were] considered” prior to issuing the Memorandum. JA at 118

(emphasis added).

Thus, in the BLM’s own words, agency leadership

“completed,” id., the BLM’s decisionmaking process regarding

the criteria to be used for removing wild horses and burros.

True, as the agency argues before us, BLM employees in the

field must now apply those criteria and remove specific animals.

But decisions by individual field employees as to which

individual horses to remove are not the “consummation of the

agency’s decisionmaking process.” Bennett, 520 U.S. at 178

(emphasis added). They are nothing more than a field

employee’s application of the BLM’s decision.

Under the second part of the Bennett test, an agency action

is not final, and thus subject to judicial review under the APA,

unless it is “one by which rights or obligations have been

determined, or from which legal consequences will flow.” Id. at

178 (quotation marks omitted). Time and again, we have turned,

ultimately, to the impact guidance has on an agency, see Bennett,

520 U.S. at 177-78, a petitioner, see, e.g., Barrick Goldstrike

Mines Inc. v. Browner, 215 F.3d 45, 48 (D.C. Cir. 2000), or both,

see Nat’l Ass’n of Home Builders v. U.S. Army Corps of Eng’rs,

417 F.3d 1272, 1279 (D.C. Cir. 2005). Where agency guidance

alters the obligations of either, we have found final agency

action. The Instruction Memorandum affects both. The

Memorandum requires “All Field Officials (except Alaska),” JA

at 113, to adhere “as closely as possible,” id. at 114, to the

number of horses it requires to be removed. It sets binding

criteria for the types of wild horses that “will be removed.” Id.

at 116. Indeed, in the subsequent years since the Memorandum

was issued for which the record describes how many horses were

removed, field employees appear to have closely adhered to the

12

Memorandum’s directives. Id. at 82-83, 158-59. Field employees

must follow that Memorandum, and members of the Fund can no

longer study and view the number and types of wild horses and

burros they believe lawful agency action would otherwise allow.

See id. at 85, 91-92, 95, 113-16.

This case is no different from Bennett itself. There, the

Supreme Court examined an opinion letter of the U.S. Fish and

Wildlife Service setting forth activities that would jeopardize an

endangered species and concluded it was “final agency action”

because another agency, the Bureau of Reclamation, had agreed

to be bound by that letter. 520 U.S. at 178. Because the opinion

letter had “direct and appreciable legal consequences,” it was

final agency action subject to review under section 704 of the

APA. Id. Just as in Bennett, before us now is a written

“[s]tatement [that] alter[s] the legal regime to which the action

agency is subject, authorizing [an official] to take the [animal] if

(but only if) [the official] complies with the prescribed

conditions.” Id. The Memorandum sets forth the legal

obligations of BLM field offices for fulfilling the BLM’s duties

under the WHBA, requiring them to gather and remove wild

horses and to do so by complying with the criteria set out in the

Memorandum. It requires BLM field employees to follow the

agency’s interpretation of the WHBA and has “direct and

appreciable legal consequences.” Id. at 178. Indeed, the

Strategy determines how an act of Congress will govern wild

horses and burros throughout the American West for the

foreseeable future—what the BLM calls in its brief “some

unspecified period of time.” Appellees’ Br. at 28. About the

only difference between the Fish and Wildlife Service’s opinion

letter authorizing the taking of fish in Bennett and the BLM’s

Memorandum authorizing the taking of horses in this case is that

one involved fish and the other wild horses. That cannot be a

difference of any moment.

Nor does Lujan v. National Wildlife Federation, 497 U.S.

13

871 (1990), counsel a contrary result. In Lujan, the Supreme

Court rejected an effort by several environmental groups to

challenge a broad set of BLM actions not limited to “a single

BLM order or regulation, or even to a completed universe of

particular BLM orders and regulations.” Id. at 890. In Lujan,

there was no discrete program to review. Environmental groups

simply took issue with all operations of the BLM conducted

pursuant to one statute. The groups failed to allege “‘agency

action’ within the meaning of [5 U.S.C.] § 702, much less a

‘final agency action’ within the meaning of [5 U.S.C.] § 704.”

Id. In contrast, appellants here do not ask the Court to review

BLM activities at a general level; they ask us to determine the

legality of a clearly defined, discrete agency interpretation of a

statute. Unlike Lujan, this is not an attack on the day-to-day

decisionmaking of an agency cloaked in the language of the

APA; instead, it is a rather ordinary review of criteria created by

an agency to carry out its statutory obligation.

Not long ago, we summarized this trend of agencies

attempting to abandon notice and comment rulemaking under the

APA and instead seeking to define the scope of their powers

through continually-issued agency memoranda:

The phenomenon we see in this case is familiar.

Congress passes a broadly worded statute. The agency

follows with regulations containing broad language,

open-ended phrases, ambiguous standards and the like.

Then as years pass, the agency issues circulars or

guidance or memoranda, explaining, interpreting,

defining and often expanding the commands in the

regulations. One guidance document may yield another

and then another and so on. Several words in a

regulation may spawn hundreds of pages of text as the

agency offers more and more detail regarding what its

regulations demand of regulated entities. Law is made,

without notice and comment, without public

14

participation, and without publication in the Federal

Register or the Code of Federal Regulations. With the

advent of the Internet, the agency does not need these

official publications to ensure widespread circulation;

it can inform those affected simply by posting its new

guidance or memoranda or policy statement on its web

site. An agency operating in this way gains a large

advantage. It can issue or amend its real rules, i.e., its

interpretative rules and policy statements, quickly and

inexpensively without following any statutorily

prescribed procedures. The agency may also think

there is another advantage—immunizing its lawmaking

from judicial review.

Appalachian Power, 208 F.3d at 1020 (quotation marks and

internal citation omitted). The same phenomenon occurs here

today. At issue is a broad congressional mandate: “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.” 16 U.S.C. § 1333(a). Although agencies subject

to similar mandates and promulgating similar memoranda

nonetheless had to face judicial review in Appalachian Power,

Bennett, and numerous other cases, today the BLM’s

interpretation of the Wild Free Roaming Horses and Burros Act

escapes review.

Under the majority’s decision, to obtain any relief,

appellants will most likely have to challenge every specific

removal of horses by individual field employees. Horses can be

removed from the public lands, however, faster than cases can

proceed through the public’s judicial dockets. Ordinarily,

litigants faced with such a dilemma would seek to apply the

“capable of repetition yet evading review” exception to

mootness. See Maj. Op. at 15 (quotation marks omitted). The

majority concludes that this exception cannot grant appellants

relief with respect to the specific removals they challenge

15

because “[h]ow a herd will be managed in the future after the

initial culling is anyone’s guess.” Id. Appellants are thus dealt

a double whammy under the majority’s decision: they cannot

challenge the BLM’s legal interpretation of the WHBA set forth

in its Instruction Memorandum to field employees, and yet they

also cannot challenge specific removals of wild horses. Under

the majority’s reasoning, for a litigant seeking to challenge the

lawfulness of the BLM’s actions in managing the Nation’s wild

horses and burros, “final agency action,” 5 U.S.C. § 704, can

only be final in theory, but never in fact.

What the majority calls the “initial culling,” however, is set

to continue through the year 2010, see Dissent at 8, pursuant to

specific criteria promulgated in the Instruction Memorandum, id.

at 9. According to the BLM itself, the “approach set forth in the

. . . [M]emorandum continues to serve as guidance to the field

for the conduct of specific gather and removal decisions.”

Appellees’ Br. at 25 n.6. I thus see no record basis for the

majority’s suggestion that future removals of wild horses and

burros from the public lands will not share significant—if not

identical—factual and legal issues with past removals, given that

field employees must continue to follow the “approach set forth”

in the Memorandum. For the foregoing reasons, I respectfully

dissent.