Mountain States Legal Foundation v. Hodel
799 F.2d 1423 (10th Cir. 1987)
When the US had partitioned
parts of Wyoming into private sections and public lands, it did so in a
checkerboard pattern, where every odd section was private and every even
section was public.
In one of these checkerboard
areas in Wyoming, a lot of wild horses lived on the Federal land. They
would often stray onto the private land where they would eat up all the
Ranchers (led by the MSLF)
sued for a writ of mandamus to order the Bureau of Land Management (BLM)
to get rid of the horses. They also wanted money for damages.
The ranchers were not
allowed to get rid of the horses themselves because the Wild
Free-Roaming Horses and Burros Act (Pub.L.
92-195), made it a crime to
"capture, brand, harass, or kill" wild horses or burros on
But the BLM was supposed to
remove the horses form private land if they strayed.
The ranchers wanted money
because they felt that the wild horses were eating all the grass, so the
land wouldn't support as many cattle as it would otherwise have. The
ranchers argued that this constituted a taking, and they should be compensated for it under
the 5th Amendment.
The Trial Court ordered the
writ of mandamus, but declined to award any damages to the ranchers. They
The Trial Court found that
the BLM's failure to get rid of the horses did not constitute a taking.
The Appellate Court affirmed.
The Appellate Court found
that the Takings Clause of the 5th
Amendment is only applicable if the government deprives a
private landholder of 100% of the value of their land.
See Village of Euclid v.
Ambler Realty Co. (272 U.S. 365
In this case, although the
Court agreed that the ranchers' land had lost some of its value because
of the loss of grass, it hadn't lost 100% of its value and therefore it
was not a taking and the Federal
government did not need to provide compensation.
In general, the Federal
government is not liable for damages done by wild animals, even if there
is a regulation protecting those wild animals.
The ranchers should have
known that there were wild animal problems when they bought the land.
In addition, the ranchers
could have always fenced off their sections if they wanted to keep the
wild horses out.
See Mackay v. Uinta
Development Co. (219 Fed. 116 (8th
The Court found that this was
a regulatory taking, because it was
a Federal regulation that protected the horses. However, an alternate
argument would be that this was an actual physical taking of the ranchers' grass. If you think about the
problem that way, then the Euclid reasoning would not be
Of course, then the question
comes up over who 'owns' the horses. The Federal government would argue
that since they didn't own the horses, they were not responsible for
physical damage done by the horses.
But, the ranchers' weren't
allowed to get rid of the horses themselves (see Kleppe v. New Mexico (426 U.S. 529 (1976))), so who is ultimately