American Horse Protection Association, Inc. v. James G. Watt, Secretary, United States Department of the Interior

SPOTTSWOOD W. ROBINSON, III, Chief Judge,

dissenting in part:

I join in Parts I and II of the court’s opinion, and in the court’s determination in Part III that the District Court’s interpretation of the Public Rangelands Improvement Act of 1978 is subject to independent review on appeal. I cannot agree, however, with my colleagues’ construction of this Act removing, as a matter of law, the grounds upon which the District Court fashioned, and later refused to lift, the injunction here at issue. Because I am not persuaded that the challenged injunction is inconsistent with this Act, I would affirm the judgment of the District Court. Because today’s reversing opinion rests largely on two rationales, I explicate my disagreement with each in turn.

I. The Applicability of Section 1333(b)(2)

In 1976, the Bureau of Land Management proposed to round up and pare the herd of wild horses on the Challis public lands because it believed that their winter feeding range, as it then existed, could not adequately support them. The District Court enjoined the roundup, partly on the ground that the Bureau had not considered the “viable” alternative of increasing the winter range’s supportive capability by restricting cattle grazing thereon.1 The District Court found this failure to be arbitrary and capricious in violation of the Administrative Procedure Act,2 and also contrary to Section 1333(a) of the Wild Free-Roaming Horses and Burros Act of 1971 (Wild Horses Act),3 which requires the Bureau’s management of wild horses to be maintained “at the minimal feasible level.”4

In 1981, the Bureau moved to dissolve the injunction.5 The District Court denied the motion on the ground that the Bureau still had not sufficiently considered the winter range alternative.6 Although my col*1321leagues do not dispute this conclusion,7 they nevertheless hold that the injunction has been superseded by Section 1333(b)(2) of the Wild Horses Act,8 as amended by the Public Rangelands Improvement Act of 1978,9 which provides that the Bureau may, in the absence of specified data, determine “on the basis of all information currently available” to it whether there exists an overpopulation of wild horses on public lands. I cannot agree that this statutory authorization entails that the Bureau need not give the winter range alternative suitable consideration.

I do not dispute the proposition that Section 1333(b)(2) precludes courts from formulating injunctions that would require the Bureau to engage in additional fact-investigatLn or factfinding on overpopulation.10 I submit, simply, that this provision is inapplicable here. The District Court denied the Bureau’s motion to dissolve the injunction, not because the Bureau lacked information, but because the Bureau had not adequately considered an identified alternative — a course of action. On the face of its 1981 opinion, the District Court in no way required the Bureau to act on any data other than that already “currently available” to it.11 That the Bureau’s superficial treatment of the winter range alternative was arbitrary represents a failure of reasoning and evaluation, not necessarily one of factfinding, and certainly not one of fact-investigation. In concluding that Section 1333(b)(2) dispenses with judicial review of the Bureau’s reasoning as well as its factfinding and fact-investigation, the court resorts to an unnatural and uncommonly broad construction of the word “information.” 12 A process of reasoning is not *1322“information” upon which the Bureau relies when it decides upon a course of action; it is the soul of the decision itself.

I am also troubled by my colleagues’ failure to articulate a clear concept of the scope of judicial review under their interpretation of Section 1333(b)(2). Although they declare that the Bureau’s discretion “remains bounded,”13 it is difficult to delineate the intended constraints on this discretion in light of their holding in the case at bar. By overturning the District Court’s decision not to dissolve the injunction, which was based on the Bureau’s refusal to deal adequately with the winter range alternative, they apparently will allow the Bureau not only to limit fact-investigation and factfinding as it chooses, but also to indulge in any manner of reasoning based on the facts at hand without judicial reproach. Such an extreme result seems inconsistent with the paucity of notice accorded this statutory provision by Congress,14 and is indeed belied by the fact that Congress retained intact the particular statutory provision — which limits the Bureau’s management activity to the “minimal feasible level” — upon which the District Court explicitly relied.15

Perhaps sensitive to this criticism, my colleagues hasten to emphasize that the District Court on remand may yet enjoin the proposed Bureau action if, on grounds other than the Bureau’s treatment of the winter range alternative, it finds this action not “rationally grounded” on the information at hand.16 This statement, it seems to me, is strikingly inconsistent with the general thrust of the majority opinion. To say that a decision is not “rationally grounded” on such information is simply another way of saying that the decisionmaker has used an arbitrary or otherwise defective reasoning process. Such a faulty deliberative process, I would submit, is presented by the case before us, in which the District Court enjoined contemplated Bureau action because it found the Bureau’s failure to evaluate adequately a particular course of action to be arbitrary. Although the District Court did not use the precise form of words proffered by the majority opinion, it could easily have found that the Bureau’s intended course of action was not “rationally grounded” upon the data it had because its deficient consideration of the winter range alternative represented an “irrational” evaluation of that data. Accordingly, I am unable to see that my colleagues’ view— that proposed Bureau action not “rationally grounded” on the information at hand might be enjoined — either distinguishes the instant case or supports their apparent in*1323terpretation of the statutory word “information” to encompass the Bureau’s reasoning process as well as its fact-investigation and factfinding activities.17

I wish to emphasize that I do not dispute a construction extending the scope of Section 1333(b)(2) to fact-investigation or fact-finding activities, nor would I affirm judicial orders that required the Bureau to engage in exhaustive studies or research, or even evaluations of alternative courses of action, if compliance with such orders entailed additional fact-investigation or fact-finding responsibilities on the part of the Bureau. I submit, however, that the District Court has not, as my colleagues contend, required an “exhaustive” evaluation18 of the winter range alternative that would entail further data compilation; rather, it has mandated only that the Bureau engage in rational consideration of a specified course of action based on information at hand. In my view, it could not have done less, for I believe that Section 1333(b)(2) cannot reasonably be construed to permit the Bureau to engage in an arbitrary reasoning process with impunity. To hold otherwise not only overloads the statutory word “information,” but, by precluding judicial review of such arbitrary actions, frustrates the congressional purpose to halt range deterioration and maximize multiple uses of public lands.

II. The Need for Immediate Action

A subsidiary rationale advanced by my colleagues in attempted support of their broad interpretation of the statutory word “information” is that such a reading effectuates congressional intent that immediate action be taken to preserve the Challis public lands.19 They rely particularly upon the statutory command that the Bureau, after it has ascertained both that an animal overpopulation exists and that action is necessary to remove excess animals, “shall immediately remove excess animals from the range so as to achieve appropriate management levels.”20 I cannot agree that this directive militates against the District Court’s decision, based on the Bureau’s disposition of the winter range alternative, not to dissolve the injunction. This provision speaks to the Bureau’s responsibility only after it has determined the existence and number of excess animals; as the District Court noted,21 it says nothing about the manner in which the Bureau shall ascertain the existence and number of excess horses. Because the case at bar involves only this *1324latter determination, the provision is inapplicable.

My colleagues also look to other statements in the legislative history that recognize the heed for action, and they interpret these statements to call for prompt or immediate action.22 The legislative history of the Public Rangelands Improvement Act of 1978, however, demonstrates that Congress did not intend what my colleagues say. The Conference Committee, which inserted the disputed language into Section 1333(b)(2), expressly warned of the dangers of hasty Bureau decisionmaking. It noted that,

[i]n summary, the conferees agreed that excess numbers of wild horses and burros must be removed from the range, but that caution must be exercised in determining what constitutes excess numbers23

In light of this admonition, I would not, on the basis of other, diffuse expressions of the need for action, promulgate such an expansive interpretation of Section 1333(b)(2), especially since, by placing serious constraints on judicial review, such interpretation might allow precipitous Bureau action in conflict with the overriding statutory goal of enhancing the productivity and multiple uses of rangelands.

Moreover, I cannot see that judicial scrutiny of the Bureau’s reasoning process will prevent the Bureau from taking immediate effective action in the present case. The parties might, as previously they did,24 agree extrajudicially to partial herd reductions prior to adoption and implementation of a comprehensive removal plan. And absent such negotiations or in the event they prove futile, I have no reason to doubt that the District Court would grant expeditiously a reasonable motion by the Bureau for a partial dissolution of the injunction. At any rate, full compliance with the injunction, which required only that the Bureau rationally consider an identified alternative based on information at hand, should take no more time than necessary to digest and evaluate available data. Of course, negotiations, court appearances, or compliance with the injunction will cause some delay before the Bureau can act, but this delay does not threaten to be so substantial as to warrant elimination of judicial review on these matters.25 Indeed, my colleagues themselves apparently contemplate that proposed Bureau action might still be enjoined if it is arbitrary, and thus in effect admit that the need for prompt action must in any event recede before the need for rational decisionmaking. Accordingly, I can agree neither that a construction of the statutory word “information” excluding the Bureau’s reasoning process will result in appreciable delay, nor that any delay caused by that construction justifies the severe curtailment of judicial review imposed.

. American Horse Protection Ass’n v. Kleppe, 6 Envtl.L.Rep. (Envtl.L.Inst.) 20802, 20804 (D.D.C.Dec.1976).

. Id. at 20804.

. Id.

. 16 U.S.C. § 1333(a) (1976).

. See Motion to Dissolve Injunction and Memorandum in Support of Motion to Dissolve Injunction, filed June 26, 1981, American Horse Protection Ass’n v. Kleppe, No. 76-1455 (D.D.C.).

. See American Horse Protection Ass’n v. Kleppe, No. 76-1455 (D.D.C. Nov. 19, 1981) (memorandum opinion) at 4-6, reprinted in Appendix (App.) 129-131. When it fashioned the injunction in 1976, the District Court relied upon a variety of rationales, one of which was the Bureau’s insufficient collection of data. See American Horse Protection Ass’n v. Kleppe, supra note 1, 6 Envtl.L.Rep. at 20804. In 1981, however, the District Court relied solely on the Bureau’s failure to scrutinize the winter range alternative when it denied the Bureau’s motion to dissolve the injunction, see American Horse Protection Ass’n v. Kleppe, supra, at 4-6, App. 129-131. That other theo*1321ríes initially proffered by the District Court as grounds for the injunction may be inconsistent with the Public Rangelands Improvement Act of 1978 is thus irrelevant.

. See Maj.Op., pt. II, p. 1313.

. See id, pt. Ill, p. 1315.

. Pub.L. No. 95-514 (1978), as codified at 16 U.S.C. § 1333(b)(2) (Supp. IV 1980).

. At the outset, one might argue that the Bureau’s authorization to act simply “on the basis of all information currently available” to it is inapplicable in the instant case, as it appears contingent upon the absence of data specified in clauses (i) through (iv) of § 1333(b)(2). Because information of the type listed in clause (iii), a court-ordered' environmental impact statement, is available to the Bureau in this case, it might seem that the Bureau’s prerogative to proceed solely on the basis of information it already has is jeopardized. I cannot, however, subscribe to such a cramped construction of the relevant statutory language. Clause (iv) of § 1333(b)(2) refers to information that becomes available to the Bureau from time to time. Because the Bureau almost always will possess information that satisfies this clause, it would eviscerate the statutory authorization, that the Bureau may ascertain on the basis of “currently available” information whether an animal overpopulation exists, to condition its efficacy upon the absence of all information specified in clauses (i) through (iv).

. Since the District Court did not directly address the issues posed by § 1333(b)(2), one cannot be certain that it did not premise its critical finding, that the Bureau had not given sufficient consideration to the winter range alternative, on some unarticulated conclusion that the Bureau’s fact-investigation or factfinding efforts were less than they should have been. If, however, the court finds this uncertainty troubling, the appropriate response would be to remand the case to the District Court for a determination whether the Bureau’s assessment of the winter range alternative was deficient as measured solely by the data available to the Bureau at the time. It surely would not support the court’s holding to remand for a decision whether the Bureau’s action is arbitrary, yet exclude from consideration the Bureau’s failure to assess adequately the winter range alternative.

. Indeed, my colleagues appear tacitly to admit that the statutory phrase “information currently available” cannot bear the weight of their holding, for they interpret it to include as well “an assessment of a reasonably limited number of alternative courses of action,” see Maj.Op. at p. 1319 n. 42, a phrase that nowhere appears in § 1333(b)(2). Furthermore, that this subsection relieves the Bureau of any court-imposed obligation to prepare an environmental impact statement, see id., cannot support the expansive statutory interpretation urged by my colleagues. Because fact-investigation and factfinding activities are inextricably integral to preparation of such a statement, congressional purpose to dispense with it cannot, without more, reasonably be taken as a basis for an inflated construction of the statutory word “information,” thereby curtailing judicial review of the Bureau’s reasoning process, *1322merely on the ground that environmental impact statements may also involve subsidiary evaluations of the facts gathered.

. See Maj.Op., pt. IV, p. 1319.

. Section 1333(b)(2) was inserted into the Public Rangelands Improvement Act of 1978 by Conference Committee, H.R.Rep. No. 1737, 95th Cong., 2d Sess. 8, 14, U.S.Code Cong. & Admin.News 1978, p. 4069 (1978), and after-wards was not specifically addressed or acknowledged by any member of Congress, see 124 Cong.Rec. 34128-34132, 35903-35904, 35540-35542 (1978). In light of this circumstance, I would hesitate to find “persuasive reason,” see Morris v. Gressette, 432 U.S. 491, 501, 97 S.Ct. 2411, 2418, 53 L.Ed.2d 506, 516 (1977), to infer that Congress intended § 1333(b)(2) to effect serious curtailment of judicial review.

. Although this provision, § 1333(a), has remained intact, its meaning has been altered by the Public Rangelands Improvement Act of 1978. The statutory words “management activities” must now be construed to include the Bureau’s responsibility to promote and balance a variety of rangeland values. This alteration, however, does not affect the case at bar. There is no evidence that the District Court enjoined the Bureau’s proposed course of action because it believed that the Bureau had no right or duty to promote cattle grazing; rather, it acted on the basis of its perception that the Bureau’s proposed action unnecessarily promoted cattle grazing at the expense of wild horses on the Challis public lands. Furthermore, even if the court feels uncertain that the District Court appreciated this change in the import of § 1333(a), the appropriate response would be to remand the case to the District Court for reconsideration in light of the change, not to preclude, as the court does today, any reconsideration of the Bureau’s failure to assess adequately the winter range alternative. See note 11 supra.

. See Maj.Op., pt. IV, p. 1319.

. My colleagues may have intended their statement, that courts might enjoin proposed Bureau action not “rationally grounded” on information “currently available” to the Bureau, to refer only to situations in which the court finds that such action could never, on the basis of this information, be other than arbitrary or capricious. This would distinguish the case at bar, in which the District Court has held only that the reasoning process in fact used by the Bureau was arbitrary and capricious, not that the proposed Bureau action could never be the product of rational deliberation.

I do not believe, however, that this distinction, if intended by the majority opinion, is either meaningful or purposeful. First, it ignores the fact that in each instance the critical defect in the Bureau’s action is an arbitrary reasoning process, which suggests that each be treated similarly. Second, this distinction does not directly address the concerns that must have prompted enactment of § 1333(b)(2), as in neither case does the court necessarily require additional fact-investigation or factfinding. Third, because the court may never be apprised or aware of all information “currently available” to the Bureau, it will only rarely be certain that the Bureau could never adequately justify its proposed action on the basis of this information. The small number of cases that could satisfy this strict requirement for proof of “irrationality” would thus foreclose the majority opinion’s apparent contention that meaningful judicial review of the Bureau’s management activities under the Wild Horses Act has been preserved. Finally, there simply is nothing in the text or legislative history of § 1333(b)(2) to suggest that this arcane distinction is the key to construction of the normally specific statutory word “information.” I thus would not utilize the distinction in any endeavor to interpret the scope of § 1333(b)(2).

. See Maj.Op. at p. 1319 n. 42.

. See Maj.Op., pt. III, p. 1315.

. Id See 16 U.S.C. § 1333(b)(2) (Supp. IV 1980).

. See American Horse Protection Ass’n v. Kleppe, supra note 6, at 5, App. 130.

. See Maj.Op., at p. 1317 n. 34.

. See H.R.Rep. No. 1737, 95th Cong., 2d Sess. 15, U.S.Code Cong. & Admin.News 1978, 4131 (1978) (emphasis added).

. The Bureau and the American Horse Protection Association have twice previously, at the behest of the District Court, agreed to partial herd reductions. See Brief for Federal Appellants at 4.

. My colleagues would make much of the statement by appellee’s counsel that a study satisfactory to appellee might conceivably take as long as a year. See Maj.Op., at p. 1319 n. 39. I do not believe, however, that we should place much reliance on this estimáte, which by counsel’s own admission was made without basis in any personal knowledge of the Bureau's planning process. Id. at p. 1319 n. 39. Moreover, counsel stated only his belief that a time period of one year would be the outside limit for the Bureau’s study, not that such study would invariably or even likely take so long. Id. Finally, counsel expressed only his view as to the length of time it might take the Bureau to prepare a report satisfactory to appellee; he expressed no opinion on the length of time it might take the Bureau to evaluate the winter range alternative in a manner that satisfied the requirements of the injunction. Id.