## Facts

- Rock Springs Grazing Association (RSGA) owned and leased land near Rock Springs, Wyoming, in a “checkerboard” area of alternating private and federal sections used for open-range cattle grazing.
- Thousands of wild free-roaming horses also ranged across the same mixed-ownership landscape, moving between federal land and RSGA’s private property.
- Mountain States Legal Foundation and RSGA alleged the horses’ grazing and presence damaged private land by eroding topsoil and reducing available forage and water for cattle.
- Plaintiffs claimed federal officials repeatedly failed to respond adequately to requests to remove the horses from private lands.
- Plaintiffs also alleged that the Wild Free-Roaming Horses and Burros Act (WFRHBA), 16 U.S.C. §§ 1331–1340, and its enforcement provisions barred landowners from capturing, removing, or otherwise interfering with protected wild horses on their own.
- Plaintiffs sued the Secretary of the Interior and other federal officials seeking declaratory and injunctive relief, a writ of mandamus compelling removal of wild horses from private lands, and Fifth Amendment just compensation for an alleged taking.
- The district court granted a writ of mandamus requiring federal officials to remove wild horses from certain private property when requested, but granted summary judgment to the government on the takings claim.
- A prior Tenth Circuit panel reversed and remanded on the takings issue, reasoning that the government’s “complete and exclusive control” over the wild horses under the Act distinguished the statute from ordinary wildlife regulation.
- The Tenth Circuit granted rehearing en banc limited to the takings issue.

## Issues

1. Whether federal protection and regulation of wild horses under the WFRHBA—combined with limits on landowners’ ability to remove the horses and resulting grazing-related damage—constituted a compensable taking of private property under the Fifth Amendment.
2. Whether wild horses protected under the WFRHBA should be treated as instruments or agents of the federal government, making their incursions onto private land attributable to federal action for takings purposes.

## Decision

- The en banc Tenth Circuit held that the WFRHBA’s protection and regulation of wild horses did not effect a compensable taking of the plaintiffs’ property.
- The court rejected the argument that statutory management authority converted wild horses into federal instruments whose movements and grazing on private land amounted to a government-caused physical invasion.
- The court concluded that the plaintiffs had not shown a physical occupation or appropriation of a private property interest by the United States, as required for takings liability on these facts.
- The court affirmed summary judgment for the government on the Fifth Amendment takings claim.

## Legal Principles

- A Fifth Amendment taking generally requires a government-caused physical occupation/invasion of private property or a regulatory action that appropriates a recognized property interest; incidental harm from protected wildlife is not enough without more direct governmental action.
- Government regulation and protection of wildlife, even when it restricts private self-help measures against the animals, does not by itself transform wild animals into government agents for takings purposes.
- Extensive statutory authority to manage wildlife is not the same as the government placing, using, or directing animals to occupy private land; absent that kind of affirmative governmental use, takings liability does not attach.
- Wildlife-protection statutes may limit landowners’ options, but those limits are generally treated as part of the background of property ownership and land-use regulation rather than as a compensable physical taking.

## Conclusion

Mountain States Legal Foundation and RSGA alleged that federally protected wild horses grazed on and damaged their private lands and that federal law prevented them from removing the horses themselves, but the en banc Tenth Circuit held that the WFRHBA’s regulatory scheme and the horses’ free-roaming incursions did not amount to a Fifth Amendment taking because the horses were not federal instruments and the government had not physically occupied or appropriated a private property interest.


Mountain States Legal Foundation v. Hodel, 799 F.2d 1423 (10th Cir. 1986)