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.