dissenting:
I must respectfully dissent from the opinion of the majority and from the basic position it represents.
This “basic position” seems to be that the case represents a challenge by plaintiffs to the extent of the authority of, and control over the horses, exercised by the BLM. However, no one challenges this authority nor the extent thereof, but instead it is accepted in its fullest extent and it, as the Government suggests, is complete and is exclusive. The consequences of the existence of this authority and the consequences of the failure by the BLM to perform its duties under the Act is instead the basic issue as will be further described.
The complaint of owners of grazing lands commenced this action against several federal officials and the United States for the unconstitutional taking, without condemnation proceedings, of forage on their private lands and for damage to their land. The taking, and general damage to the range, it is alleged, resulted from the failure by the defendants to manage herds of wild horses contrary to and in violation of the Wild Free-Roaming Horses and Burros Act, 16 U.S.C. § 1331. Also substantial damages were sought against officials for willfully preventing the proper management of the horses under the Act to the damage of plaintiffs.
This case concerns grazing in the southwestern part of Wyoming known as the checkerboard. These lands are so described because alternate sections are private lands and public lands. In the area in question, which is about 115 miles long and 40 miles wide, the Rock Springs Grazing Association composed of a group of ranchers owns or leases the private lands. The area, of course, generally follows the railroad. The land is described as high desert, the forage is very limited, the area is sensitive to overuse, and there are few if any fences to mark property lines. The Grazing Association has been in business since 1909 and has used the area with seasonal variations during that time. The depositions indicate that with the limited forage *1432and a need to use different portions of the area during different seasons a large acreage is required to support a horse or cow.
The Government acknowledges that the horses have been using plaintiffs’ private lands for grazing; that there has been an overpopulation of horses since the BLM assumed control of them; and that requests have been made by plaintiffs under the Act for it to remove the horses from their private lands. The record shows the horses were not so removed.
The Complaint as to the number of horses, states:
“Plaintiff Rock Springs Grazing Association is desirous of maintaining and preserving a reasonable number of wild horses in the checkerboard area pursuant to previous understandings with the defendants and other interested parties. The Association has expressed to defendants on numerous occasions its willingness to accomplish the purposes of the Wild Horse Act and allow a reasonable and manageable number of wild horses to remain on Association land.”
The plaintiffs assert, and the Government agrees, that the complete and exclusive control and management of the horses is in the Government; that this control is complete; that the Government by the express provisions of the Act must remove horses from private lands when requested; that many such requests have been made by plaintiffs but the horses were not removed and continued to consume the forage on plaintiffs’ lands.
The trial court issued the writ of mandamus and ordered all wild horses removed from the Association’s land within one year and a reduction in the wild horse population on the public lands within two years. The trial court eventually dismissed the claim against the BLM director and granted the Government’s cross-motion for summary judgment on the unconstitutional taking claim. The plaintiffs relinquished their claim for attorneys’ fees and costs. The plaintiffs appeal the dismissal of their claim against the BLM director and the court’s order denying damages against the Government.
Again it must be emphasized the complaint is that the BLM has specific duties under the Act but has failed to carry them out. These duties relate to the obligation of the agency to control the horses; to move them when the Act requires such action; to capture and remove the horses from the range; and if necessary to sell or to destroy the horses. The Act assumes the ability of the BLM to exercise complete control of the horses. The BLM has assumed it has both the ability and the authority to completely and exclusively control the horses.
The Government seeks on appeal to change the issues, the arguments and the contentions of the parties to make it appear that we are concerned here with the issues presented in other cases wherein the authority of the agency is challenged or where it is asserted that the authority is limited. These are the migratory bird cases, the marine mammal cases and the endangered species cases. However, no one here challenges the ability or extent of authority of the BLM to completely control the horses at all times. This is accepted. The ability of the BLM as a practical matter to control the horses wherever they are is a very significant factor, as is its ability to capture, mark, sell and convey title to the horses as would be done as to any domestic animal.
This pervasive control placed in the BLM is thus fully acknowledged by all parties as are the active affirmative duties of the agency under the Act. With no challenge to the BLM’s authority and with the assertion of the agency that it indeed has such duties and has the exclusive control of the horses the discussion of the cases concerning waterfowl, marine animals and endangered species are interesting historically on the issue of prohibitions on the public, the extent of challenged authority, and are very important in that context but are well outside the issues of this case. We have instead the explicit duties of the BLM acknowledged by it and the admitted failure to perform such duties. Thus we are not exploring the extent, nature and existence of the duties. The agency has admitted *1433facts demonstrating that it has not performed its duties. The case is thus about the consequences of the failure to so perform.
As it is easy to overlook this basic issue, it is also easy to overlook just what horses we are concerned with on this appeal. The statute, 16 U.S.C. §§ 1331-40, provides (by definition) that it covers “all unbranded and unclaimed horses and burros on public lands of the United States.” There are' no other qualifications. Thus the category of animals covered is determined by their location — not the nature of the animals but instead where they are found. They are not within the Act when found on state land or private land. The “place” separates them from all other horses unbranded and unclaimed running free. If they are not on public land of the United States they are not under the Act. The Regulations further refine this geographically controlled coverage by adding a date — thus those animals “that have used public lands on or after December 15, 1971.” No reference whatever is made to the origin or nature of the animals. Thus any unclaimed unbranded horse is within the definition of the Act if it is at the required place at the required time. It is thus apparent that a determined effort was made in drafting to include in the definition for coverage purposes only certain horses by location and date. Nevertheless any horse and all horses here concerned under this test are really domestic animals according to the record. They are not unbranded and unclaimed wild animals — but “all such” horses.
Apparently by design, the horses are not referred to in the Act as “wild horses” or “wild animals”. There would seem to be no basis for treating them as wild animals for some purposes and not for others as the Government would have us do. The horses cannot be biologically so altered by an Act of Congress into “wild animals”. We have seen that certain individuals in the Army were made “gentlemen” by Act of Congress but that may not have been all that successful either.
The record shows that the horses here concerned bear recognizable traits or characteristics of particular breeds. These horses in the not too distant past in this area were the ungathered portion of ranch herds maintained by the ranchers as a readily available pool of stock for ranch use and for use by the military. The record shows that particular breeds were from time to time introduced into the herds to improve the quality or characteristics of the pool for specific anticipated uses. Needed horses were easily gathered from time to time.
The statute appears to be drawn to completely exclude all state authority in the control or management of the horses. Thus the statute nowhere refers to the horses as “wild animals” which would permit the states to participate and which would also recognize the interest of the citizens of the state therein. To this end control or movement of the horses by a state official or anyone else constitutes a criminal offense. See Kleppe v. New Mexico, 426 U.S. 529, 96 S.Ct. 2285, 49 L.Ed.2d 34 (1976); (State of New Mexico v. Morton, 406 F.Supp. 1237 (M.D.N.M.1975)).
These horses are thus placed in a newly created legal category not wild animals, not estrays, not migratory, not related to treaty obligations but as part of the public lands as the Supreme Court noted. This was an innovative device to exclude state participation and to place exclusive control in the Secretary. This theory is absolutely the only basis advanced to support the jurisdiction of the BLM. The horses are thus expressly and necessarily made a part of the public lands. The Act says they are “components” of the public lands under the “jurisdiction” of the Secretary. Thus they cannot be described as “wild animals”, as the Act avoids doing this, but instead are a part of the public lands — a “component” thereof, a part thereof and that alone.
The nature of the Government’s interest in the public lands is certainly clear and it must be recognized that the interest in the components thereof is of the same nature and character. The Act in no way indicates otherwise. There can thus be no issue of ownership of wild animals.
*1434The persons who drafted the statute were thus clear and precise in placing the jurisdiction of the Secretary only on the “component of public land” theory, on his control over the public lands for public use and the Government’s ownership thereof. This theory was convincing to the Supreme Court and we should adhere to it.
As herein mentioned, the Secretary is required to remove the horses from private land when requested to do so by the Regulations — § 4750.3. The Secretary is so required to act on request, as would be expected when dealing with something he can control and over which he has actually assumed control. Also he must:
1. Gather and capture and mark horses under stated circumstances. (Capture methods are described in great length in the Regulations.)
2. Relocate horses and move them from place to place. (Removal is described in a separate section of the Regulations.)
3. Transport horses.
4. Offer horses for adoption (sale) and convey title to them on request as would be typical of all horses under state law.
5. See that appropriate use is made of all ranges and multiple use is adhered to.
The Regulations state that their objective is to provide procedures “for protecting, managing and controlling” the horses. The term “controlling” is thereafter implemented in the Regulations in detail with the provisions to carry out the statutory duties. In the statement of policy in the Regulations (§ 4700.0-6) it is provided that “they ... will be ... controlled____” In § 4730.1 relating to the inventories the Regulation again provides in planning for “control” certain practices shall be followed and the term “control” is again used in the planning section — § 4730.6. This “control” over this component of the public lands must mean that the horses be located and relocated from time to time at places which are in accordance with the management duties of the Secretary and thus where the BLM thinks they should be. No one else can do this — no one else can move them for to do so is a criminal offense.
Thus accepting the authority of the BLM as it has assumed it to be, and its undertaking complete control of the horses, its failure to perform its duties as asserted by the plaintiffs, and as the record shows, has caused the consumption and destruction of plaintiffs’ property for a public use without compensation. The plaintiffs are thus entitled to compensation and the relief afforded by the trial court.
The Bivens cause of action advanced by the plaintiffs has much appeal under these circumstances where its elements seem to be admitted by the officials and the other facts supporting it are not challenged. However, I am not prepared to extend the doctrine to a complete failure to act.
The value of forage as a separate item of property ownership is acknowledged by the BLM in its regular fees charged for grazing by permittees. 43 U.S.C. § 315-315q. But more importantly in this consideration are the fees charged by the BLM for livestock which trespass on public lands — § 4720.2(b). These trespass fees are also provided for in the Regulations herein considered and are to be assessed against horses in private ownership which use the public lands without a permit. The BLM by the regular fees and by trespass fees states its view of the value of forage consumed on public land.
Forage as a separate item of property is recognized in Wyoming between private entities. Forage is by statute a crop in Wyoming. Wyo.Stat.Ann. § 11—1—101(a)(iii). Crops are there protected. Crops are recognized generally as personal property, a separate property interest, in condemnation actions, see King v. United States, 427 F.2d 767 (Ct.Cl.1970), and under the common law. An owner of stock is liable therefor when he knows that they will go on the land of another.
The BLM in this action has acknowledged that it administered the checkerboard area for grazing as if it were one range with the public and the fee land together as a unit. The horses were thus *1435controlled as if there was but one ownership of land and forage and thus managed to use the public land and forage, and plaintiffs’ land and forage without a distinction. This consumption of privately owned forage was of course to support the horses for a public purpose.
The Government has thus used and caused the consumption of plaintiffs’ property for a public purpose. The component horses obviously have gone upon private land and have consumed plaintiffs’ forage. This has been on a regular basis as part of the Government’s control of the horses and management of the range as a unit.
The physical “presence” here is not a casual one nor a random one nor one brought about by the movement of ducks or wild animals or any animals by themselves. We are not concerned with geese flying from place to place nor deer moving about. Instead we are here concerned with the physical presence of one of the components of the Government’s land directed and orchestrated on a regular basis by the BLM. This was continuous and pervasive because of the affirmative duties to control placed on the BLM by the Act and the Regulations. It was also because of the significant factor that the area was managed and the horses managed without regard to the ownership of the different tracts within it.
The basic elements of a taking are described in Penn Central Transp. Co. v. New York, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978). The opinion makes the distinction just referred to when it states that:
“[Ajctions that may be characterized as acquisitions of resources to permit or facilitate uniquely public functions have often been held to constitute ‘takings.’ ”
The concern is with the condemnation of forage by the Government which took place at the least after the plaintiffs requested removal of the horses from private land, and the BLM refused to perform its duty to remove them. We also have the acknowledgment by the Government that there was an overpopulation of horses on this range when suit was filed. The record shows that the BLM again had taken no steps to perform its statutory duty to remove the excess which necessarily included plaintiffs’ land.
I would remand the case to the trial court on the issue of the taking of forage from plaintiffs’ lands for a factual determination whether such forage was taken by the continued failure to manage the horses and by permitting their continued use of private lands by the increased number of horses and burros since the operative date in 1971. I would further remand for a further consideration of the Bivens issue.
I agree with the dissenting opinion by Circuit Judge BARRETT.