Porter, Martin D.

English

University of New Mexico

Volume 19 
Issue 3 Summer 1979 
Summer 1979 
Wild Horses off Private Lands 
Martin D. Porter 
Recommended Citation 
Martin D. Porter, Wild Horses off Private Lands, 19 Nat. Resources J. 721 (1979). 
Available at: https://digitalrepository.unm.edu/nrj/vol19/iss3/16 
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WILD HORSES OFF PRIVATE LANDS
WILD HORSE AND BURRO ACT: Private land owners are entitled
to a mandamus requiring the Secretary of the Interior to remove
wild horses which have strayed from public lands onto their private
lands. Roaring Springs Associates v. Andrus, 12 E.R.C. 1557 (D.
Ore. 1978).
Roaring Springs Associates is a co-partnership owning land in east-
ern Oregon. This private land is unfenced and is bordered on one side
by federally owned land. Wild free roaming horses have often drifted
from the federal land to the private land. Roaring Springs Associates
had contacted the nearest federal marshal and agent of the Secretary
of Interior (Secretary) and requested that the wild horses be re-
moved. When the federal agents refused to remove the horses, Roar-
ing Springs Associates brought a mandamus action seeking an order
compelling the federal government to remove them.1
Roaring Springs Associates brought the mandamus action pursuant
to 28 U.S.C. § 1361.2 This statute gives to the federal district courts
original jurisdiction over mandamus actions which seek to compel a
federal officer or a federal agency to perform a duty that they are
legally required to perform.3 Section 1361 is applicable if it appears
that (1) the plaintiff's claim is clear and certain and (2) the duty of
the officer is ministerial and so plainly prescribed as to be nondiscre-
tionary. 4
Both Roaring Springs Associates and the federal government
moved for summary judgment. In examining the case, the federal
district court determined that there were two basic issues involved.
First, do defendants owe a clearly prescribed ministerial duty to the
plaintiffs to remove the wild horses from the plaintiff's land. If the
court had found that there is such a duty, then the second issue was
whether the plaintiff's claim was nonetheless barred by the doctrine
of sovereign immunity.'
As to the first issue, the plaintiff claimed that the government's
1. Roaring Springs Associates v. Andrus, 12 E.R.C. 1557 (1978).
2. 28 U.S.C. §1361 (1976).
3. Id.
4. Id.
5. 12 E.R.C. at 1558.
NATURAL RESOURCES JOURNAL
duty arises from the Wild Horse and Burro Act6 which provides that
"if wild free roaming horses or burros stray from public lands onto
privately owned land, the owners of such land may inform the near-
est federal marshal or agent of the Secretary who shall arrange to
have the animals removed . . .-
The federal government made four claims which support its con-
tention that there is not a clearly prescribed ministerial duty owed to
the plaintiff. Firstly, the government claimed that the horses had not
strayed onto the plaintiff's land and, therefore, it owed no duty to
the plaintiff under the statute.8 In support of this assertion, the
government pointed to the Oregon estray laws which defines
"estray" as "livestock of any unknown person which is unlawfully
running at large or being permitted to do so, or which is found to be
trespassing on land enclosed by an adequate fence." 9 Thus, by in-
corporating the Oregon statutory definition of "estray" into the
federal statute, the government argued that the horses were not
estrays because the land involved is open range and, by definition,
"estrays" are livestock found on land where they are not permitted
to be legally.1 0
The Oregon District Court rejected this definitional argument. It
pointed out that although Congress had not defined the word
"stray" in the Wild Horse and Burro Act, there was no indication in
the record that Congress intended to incorporate state estray laws.
The court noted that Congress used the word "stray" as a verb; thus
a definition of "stray" was not necessary. The court also determined
that the congressional intent surrounding the Wild Horse and Burro
Act was to protect wild horses.' 1 Therefore, the court concluded,
there is no reason to believe that Congress intended the enforcement
of the Wild Horse and Burro Act to be subject to state law and
thereby to vary from state to state.' 2
The government's second argument was that the Secretary had
promulgated a specific regulation' 3 pursuant to § 1334 which
imposes a duty on the Secretary to remove wild horses from private
lands which are fenced. The regulation does not include the removal
of wild horses from land which is unfenced and in an open range
area. 14
6. Wild Horse and Burro Act, 16 U.S.C. § 1331 et seq. (1976).
7. Id §1334.
8. 12 E.R.C. at 1558.
9. ORE. REV. STAT. §607.007(1).
10. 12 E.R.C. at 1559.
11. 12 E.R.C. at 1559.
12. 12 E.R.C. at 1559.
* 13. 43 C.F.R. §4750.3 (1978).
14. Id
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WILD HORSES OFF PRIVATE LANDS
The court agreed with the government's reading of the regulation.
Therefore, it had to determine whether the regulation conflicted
with the Wild Horse and Burro Act. It is the courts, not adminis-
trative agencies, who must decide questions of statutory construc-
tion.' I After examining the statute, the court determined that the
Wild Horse and Burro Act imposes a duty on the Secretary to remove
wild horses from private lands upon notice from the private land
owner. This statute, the court held, is not limited in its applicability
to only some private land owners. If the government's claim that the
regulation passed pursuant to the Wild Horse and Burro Act limits
the applicability of the Act, then states could remove the protection
provided by the Act by declaring that all lands are in an open
range. I6
The next argument of the government was that Congress, in pass-
ing the Wild Horse and Burro Act, intended to protect wild horses
and not private land owners.' I The court quickly rejected this con-
tention because, as the court had already determined, the statute
requires the Secretary to remove the animals from private lands. This
mandate serves to protect the animals by keeping them on public
lands where they can be controlled and guarded by the government.
It also gives the private land owner an easy and cost free way to
remove the animals from his/her land. Thus, the land owner is less
apt to shoot or injure the animals in an attempt to remove them.' 8
Lastly, the government claimed that the manner in which the
Secretary protects the horses is within his discretion and, therefore, a
mandamus action does not lie to dictate the exercise of this dis-
cretion. The court found that the manner in which horses are pro-
tected is within the discretion of the Secretary, but that the removal
of the wild horses is clearly a ministerial duty.' I
Having determined that the Secretary did owe a duty to the plain-
tiff, the court then examined the issue of whether the doctrine of
sovereign immunity affected the plaintiff's right to relief. According
to this doctrine, mandamus relief that expends itself on the public
treasury is barred unless the federal officer being sued is alleged and
found to have acted either unconstitutionally or beyond the scope of
his statutory authority.2 0
Congress has appropriated over three million dollars to be used in
the wild horse and burro management program. Oregon had received
15. Patagonia v. Board of Gov. of Fed. Res. Sys., 517 F.2d 803, 812 (9th Cir. 1975).
16. 12 E.R.C. at 1559.
17. Icd at 1559.
18. lh. at 1560.
19. Id at 1560.
20. Dugan v. Rank, 372 U.S. 609, 620 (1963).
July 1979]
NATURAL RESOURCES JOURNAL
$475,000 of this amount.2 1 The Secretary has access to these funds.
Merely because he desires to spend the allocated funds for activities
other than removing horses from private lands, does not mean that
the funds are unavailable for this purpose. Thus, the court held that
the plaintiff's claim was not barred by the doctrine of sovereign
immunity and that the government owes a duty to private land
owners to remove wild horses and burros so long as the funds are
available.2 2
The federal district court granted the plaintiffs motion for sum-
mary judgment and held that mandamus relief was available to it.
This is a well-reasoned decision. Congress has determined that the
wild horses that roam throughout many of our western states are
part of our American heritage. Thus, their protection is a task ap-
propriately undertaken by Congress. Horses can damage grazing land.
This is a real threat to some land owners. One solution available to
the Secretary is to fence the federal lands upon which wild horses
and burros graze. If the costs of removing roaming animals from
private lands is similar in amounts to the cost of fencing the federal
lands upon which they roam, then fencing may be the solution.
MARTIN D. PORTER
21. 12 E.R.C. at 1560.
22. Id at 1560.
[Vol. 19


Wild Horses off Private Lands

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