"In sum, the BLM's actions fell within the discretion which courts have recognized the BLM has to remove excess animals," he wrote.
Judge Johnnie Rawlinson wrote in a strongly worded dissent that such deference isn't warranted if the agency interprets part of a law inconsistently with its overall purpose. She argues BLM violated the intent of Congress to protect the horses.
The ruling upheld an earlier decision by U.S. District Judge Morrison England Jr. in Sacramento that found the BLM acted legally when it gathered horses from overpopulated herds it determined were three times larger than the range can ecologically sustain.
The agency projected that left unchecked, the herds could exceed 6,000 to 8,000 animals within a decade.
But In Defense of Animals and others argued, among other things, that the act prohibits the removal of any mustangs from horse management areas on the range before the agency first identifies old, sick or lame animals to be destroyed humanely.
BLM maintains the term "remove" should be interpreted to refer to the permanent removal of animals, not the temporary gathering of animals to determine which ones should be euthanized and which should be made available for adoption.
"We agree with BLM," Bea wrote, adding that the act itself does not define "remove."
Bea noted in the majority opinion joined by Judge Mary Schroeder that although the act authorizes the humane destruction of excess healthy wild horses and burros, Congress has prohibited authorization of funds to be spent to do so.
In her dissent, Rawlinson said the act was intended to protect horses on public lands in the West. She said if the herds become overpopulated, the law allows removal only of "excess animals," and old, sick or lame horses must be removed first.
"The act couldn't be clearer," Rawlinson wrote. "It is only after old sick or lame animals are destroyed that the act provides for additional excess wild horses to be captured."