dissenting.
I must respectfully dissent. I continue to adhere to the reasoning of the prior opinion by a panel of this court reversing and remanding the grant of summary judgment on the basis that wild free-roaming horses and burros are not “wild animals.” Mountain States Legal Foundation v. Clark, 740 F.2d 792 (10th Cir.1984), vacated sub nom. Mountain States Legal Foundation v. Hodel, 765 F.2d 1468 (10th Cir.1985). Assuming, however, that the animals protected under the Wild Free-Roaming Horses and Burros Act, 16 U.S.C. §§ 1331-1340 (the Act), are “wild animals,” I would nonetheless dissent from the majority opinion. RSGA should not be precluded from litigating its “taking” claim as a matter of law given the Act’s unique wildlife protection scheme. Summary judgment is inappropriate and this case should be remanded to the district court to determine whether the facts here, i.e., the amount of damage to RSGA’s property and the cause of that damage, entitle RSGA to relief under the Taking Clause of the Fifth Amendment.
I disagree with the majority’s characterization of the Act as “nothing more than a land-use regulation enacted by Congress to ensure the survival of a particular species of wildlife.” Mountain States Legal Foundation v. Hodel, maj. op. at 1428. The plain and unambiguous language of *1436the Act makes clear that Congress intended that wild free-roaming horses and burros be maintained on public lands and not on private lands. Unlike the treatment of wildlife in other federal statutes, wild free-roaming horses and burros under the Act are by definition specific to the public lands. As I read the Act, Congress did not intend to burden private landowners but <rather intended to have the Government assume the complete responsibility for maintaining as well as protecting these animals.
In the section of the Act entitled “Congressional findings and declarations of policies,” 16 U.S.C. § 1331, Congress expressly stated: “It is the policy of Congress that wild free-roaming horses and burros shall be protected from capture, branding, harassment, or death; and to accomplish this they are to be considered in the area where presently found, as an integral part of the natural system of the public lands.” (Emphasis added.) Wild free-roaming horses and burros are defined as “all unbranded and unclaimed horses and burros on public lands of the United States....” 16 U.S.C. § 1332(b) (emphasis added). “Range” is defined as “the amount of land necessary to sustain an existing herd or herds of wild free-roaming horses and burros, which does not exceed their known territorial limits, and which is devoted principally but not necessarily exclusively to their welfare in keeping with the multiple-use management concept for the public lands....” 16 U.S.C. § 1332(c) (emphasis added). “Public Lands” is defined as “any lands administered by the Secretary of the Interior through the Bureau of Land Management or by the Secretary of Agriculture through the Forest Service.” 16 U.S.C. § 1332(e).
The Act directs the Secretary to manage wild free-roaming horses and burros on and as part of the public lands:
The Secretary is authorized and directed to protect and manage wild free-roaming horses and burros as components of the public lands, and he may designate and maintain specific ranges on public lands as sanctuaries for their protection and preservation____ The Secretary shall 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) (emphasis added). Section 1334 of the Act also makes clear Congress’ express intent that wild free-roaming horses or burros be maintained on the public lands and not on private lands: “If wild free-roaming horses or burros stray from public lands onto privately owned lands, the owners of such land may inform the nearest Federal marshall or agent of the Secretary, who shall arrange to have the animals removed.” 16 U.S.C. § 1334 (emphasis added). While a private landowner may choose to maintain these animals on his property, id., it is clear under the Act that the Secretaries have an affirmative and mandatory duty to remove wild horses from private lands at the request of landowners, consistent with congressional intent that these horses be maintained on public lands. Therefore, if the Wild Free-Roaming Horses and Burros Act is a land-use regulation, it is only with respect to public, not private lands.
The majority not only incorrectly characterizes the Wild Free-Roaming Horses and Burros Act as a land-use regulation, but also inappropriately compares the Act with other federal wildlife statutes. My research reveals that the Wild Free-Roaming Horses and Burros Act is the only federal wildlife act which imposes a duty upon an agency of the federal government to manage and to maintain wildlife specifically on the public lands. Again, assuming arguendo, that wild horses and burros are “wild animals,” the Act is nonetheless unique in the duty Congress imposed on the Secretaries of the Interior and Agriculture to maintain and to manage these animals on the public lands. The specific and identifiable duty imposed upon the executive branch to maintain and to manage these animals on public lands is the feature which makes the Act unique among federal wildlife statutes. While other wildlife conservation laws may also authorize and require exclusive governmental control over wildlife, this Act is unique insofar as *1437the complete and total control of the government over wild free-roaming horses and burros is tied to public lands.
The “taking” issue before us in this case is specific to the Wild Free-Roaming Horses and Burros Act. Properly stated, the issue is whether damage to private property by wild horses caused by the failure of the Government to remove the horses from private lands at the request of landowners constitutes a violation of the Fifth Amendment Taking Clause under the Act? Assuming that a private landowner’s property is damaged by a failure of the Government to maintain and to manage wild horses and burros on public lands as required by the Act, I believe there can be a violation of the Fifth Amendment Taking Clause. Therefore, summary disposition of RSGA’s “taking” claim is inappropriate.
The Fifth Amendment of the United States Constitution provides in relevant part: “nor shall private property be taken for public use without just compensation.” While the Supreme Court has apparently never addressed the issue of whether property damage caused by wild animals can constitute a taking, see generally, Note, “The Liability of the Federal Government for the Trespass of Wild Horses and Burros,” 20 Land & Water L.Rev. 493, 506 (1985), the majority applies the “land-use regulation” taking cases to this case. As noted above, I do not believe this is a land-use regulation case nor do I believe this case can be decided as a matter of law based upon prior Supreme Court decisions.
The Supreme Court has often stated that there is no “set formula” for determining when justice and fairness require that economic injuries caused by public action (or inaction) must be deemed a compensable taking. Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1005, 104 S.Ct. 2862, 2874, 81 L.Ed.2d 815 (1984) (citations omitted).
[W]e have eschewed the development of any set formula for identifying a “taking” forbidden by the Fifth Amendment, and have relied instead on ad hoc factual inquiries into the circumstances of each particular case. To aid in this determination, however, we have identified three factors which have “particular significance:” (1) “the economic impact of the regulation on the claimant”; (2) “the extent to which the regulation has interfered with distinct investment-backed expectations”; and (3) “the character of the governmental action.”
Connolly v. Pension Benefit Guaranty Corp., — U.S. -, -, 106 S.Ct. 1018, 1026, 89 L.Ed.2d 166 (1986) (citations omitted).
While the general rule is that a Fifth Amendment taking claim is to be determined on a case by case basis, the Supreme Court has held that a permanent physical invasion by the Government constitutes a taking per se without regard to other factors that a court might ordinarily examine. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 432, 102 S.Ct. 3164, 3174, 73 L.Ed.2d 868 (1982). All other taking claims not involving a permanent physical invasion must be resolved by an ad hoc inquiry considering the factors set forth above. Id. RSGA apparently does not contend that the presence of wild horses upon its property constitutes a permanent physical occupation. Therefore, the resolution of RSGA’s taking claim in this case must be made upon a review of the facts in light of the factors articulated by the Supreme Court.
The Supreme Court has stated: “The purpose of forbidding uncompensated takings of private property for public use is ‘to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.’ ” Connolly, 106 S.Ct. at 1027, quoting Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 1569, 4 L.Ed.2d 1554 (1960). In this case it is not only fair and just that the Government not impose a burden on a few individuals to sustain wild free-roaming horses and burros, but it is also the express intent of Congress that private landowners not be required to share the burden of sustaining these animals which compete with livestock for scarce and valuable high plains forage. RSGA should be given an opportunity to *1438demonstrate how and to what extent it has been harmed by the failure of the Secretaries to remove the horses from its property. The majority concedes that “the economic burden imposed on the Association is significant....” Mountain States Legal Foundation v. Hodel, maj. op. at 1431. In light of the direct impact of the Secretaries’ action under the Act on RSGA’s land, I am not prepared to hold as matter of law that a compensable “taking” has not occurred in this case. I would therefore reverse the district court’s holding that “the use of private lands by excess horses under .the Act does not rise to the level of a Fifth Amendment violation” and remand the case to the district court for fact-finding consistent with the Supreme Court’s previous holdings regarding “taking” claims.
I fully concur in the views expressed by Circuit Judge SETH in his separate dissenting opinion.
HOLLOWAY, Chief Judge, joins in the dissents of Circuit Judges SETH and BARRETT.