Andrew Cohen - continued...
Andrew Cohen - Andrew Cohen has served as chief legal analyst and legal editor for CBS News and won a Murrow Award as one of the nation's leading legal analysts and commentators. More Andrew Cohen is a Murrow Award-winning legal analyst and commentator. He covers legal events and issues for CBS Radio News and its hundreds of affiliates around the country and is a frequent contributor to the op-ed pages of the nation's leading newspapers and online sites. From 2000-2009, Andrew served as chief legal analyst and legal editor for CBS News and contributed to the network's coverage of the Supreme Court, the war on terrorism, and every high-profile civil or criminal trial of the decade. He is also a single dad of a great kid, a racehorse owner and breeder, and the winner of several awards for writing about horse racing, including the 2010 John Hervey Award for distinguished commentary and the 2010 O'Brien Award for Media Excellence. Follow Andrew on Twitter at @CBSAndrew.
Andrew Cohen - Andrew Cohen has served as chief legal analyst and legal editor for CBS News and won a Murrow Award as one of the nation's leading legal analysts and commentators. More Andrew Cohen is a Murrow Award-winning legal analyst and commentator. He covers legal events and issues for CBS Radio News and its hundreds of affiliates around the country and is a frequent contributor to the op-ed pages of the nation's leading newspapers and online sites. From 2000-2009, Andrew served as chief legal analyst and legal editor for CBS News and contributed to the network's coverage of the Supreme Court, the war on terrorism, and every high-profile civil or criminal trial of the decade. He is also a single dad of a great kid, a racehorse owner and breeder, and the winner of several awards for writing about horse racing, including the 2010 John Hervey Award for distinguished commentary and the 2010 O'Brien Award for Media Excellence. Follow Andrew on Twitter at @CBSAndrew.
Amplify’d from www.theatlantic.com
The Quiet War Against Wyoming's Wild Horses
By Andrew Cohen
Aug 11 2011, 12:00 PM ET
How can a state promote its wild horses as a tourist attraction while it seeks to decimate herds?
Reuters
Listen for the sound of hooves pounding. Look for manes flying in the wind. Feel the rush of awe at the sight of these creatures. The Pilot Butte Wild Horse Scenic Loop Tour is something you and your family will never forget because Sweetwater County's cherished wild horses are living examples of a wide-open landscape and untamed frontier spirit.
--Wyoming Tourism Board
This is my third take on these Wyoming horses in just the past few weeks, and I again beg your indulgence. First, I wrote about a failed federal plan to round up the horses, geld the stallions, and return some back to the herds to decrease natural procreation cycles. When the government was sued in federal court in Washington to stop the removal and castration, the feds backed off and came forward with a new pitch. The horses would leave, but none of the stallions would be castrated. This plan appears to be going forward. I wrote about that, too. The number of horses in two vast "herd management areas," located in a desolate part of the state, would again dip below 300, making it much less likely that a tourist family would see a wild horse in Sweetwater County.
The reason for my persistence isn't difficult to explain. Each time I write something about these horses, I learn something more about the politics of their plight that is worth sharing to a broader audience. This time, the story is not just about the hypocrisy evident in Wyoming's attitude toward these horses -- the state is both marketing them as tourist attractions and actively conspiring to get rid of them. It's also about the curious conduct of the U.S. Department of the Interior, which, again, has done the bidding of an industry that it is supposed to regulate. With friends like the BLM and Wyoming state officials, the horses and their human supporters don't need any enemies.
The cattle and sheep industries want the horses gone from the rangeland -- even though the ranchers reap the benefits of having their herds graze upon public land at low cost. To support their position, the ranchers cite a 1981 consent decree, overseen by a local federal judge, which limits the number of wild horses that are to be left in the Little Colorado and White Mountain herd areas to approximately 300. To the ranchers, the horses are a nuisance, not an asset, a point Wyoming doesn't happen to mention in its breathless tourism campaigns, which feature television ads of thundering herds.
"That our government is unwilling to find these horses room -- or even consider doing so -- contradicts the spirit, if not the letter, of federal law"
Meanwhile, the BLM and Wyoming seem more intent on justifying ways to get rid of the horses rather than upon figuring out how to preserve and protect them. Wyoming cites a 2003 agreement between state officials and the Bush-era Department of the Interior, which places legal pressure on the BLM to rid Wyoming of excess wild horses -- and the BLM itself gets to determine what constitutes "excess." These officials say they have history and the law on their side. But the facts seem to support those who support the horses. When you have the law going one way and the facts going another, it's typically time to go to court. And that's not the worst thing that could happen here.
Wyoming
Earlier this week, I asked Chuck Coon, Media Relations Manager at the Wyoming Office of Tourism, how he squared the evident contradiction of Wyoming's policies. How can you be advertising to tourists to come see the wild horses of Sweetwater Country while Wyoming's lawyers are in federal court endorsing the BLM policy to rid the area of most of its horses? Here is Coon's response:
As you know, management of wild horse herd sizes in Wyoming is under the jurisdiction of the Bureau of Land Management. No matter what decision is rendered in terms of herd reductions there will remain ample opportunities for visitors to see wild horses in several parts of this state. And we'll continue to help local tourism entities in the open landscapes where those horses still roam in Sweetwater County, Park County, Carbon County and Big Horn County as part of our overall marketing of the state as a tourism destination.
Coon understandably wants to reassure Wyoming's tourists that they still have "ample opportunities" to see the horses of Sweetwater County. We'll see. But the state didn't merely defer the question to the BLM, as Coon suggests. Instead, Wyoming weighed in heavily via litigation on behalf of its ranchers, one of whom, Matt Mead, happens to be the state's governor. No small wonder. The ranching lobby in Wyoming (and Washington) is powerful. The wild horse lobby is not. When it comes to these horses, might makes right under cover of law.
Through a spokesman, and via email, Gov. Mead dodged the question of how Wyoming could market its wild horses with one hand and decimate its wild horse herds with the other. "The Governor's approach, which follows the approach of past governors, is to ensure there is balance on the range and right now with the number of wild horses in this herd there is an imbalance." When pushed, the spokesman wrote: "The State of Wyoming has an interest in defending its consent decree. That agreement allows for horses on the range, but also prevents overpopulation that damages the public lands for other uses, which are equally important for tourism and other industries, like ranching and hunting."
When the governor's office uses the word "balance" to describe how Wyoming's vast range lands ought to be used, what it really means is "imbalance." Cattle and sheep dominate the Wyoming range when compared to wild horses. And when the governor's office uses the word "imbalance" to describe the current situation, what it really means is the growing "balance" between and among species when wild animals are left to their own devices. Meanwhile, as you will see below, reasonable people disagree about what constitutes an "overpopulation" of wild horses in or near Sweetwater County.
According to statistics compiled by Jonathan Ratner, of the Western Watersheds Project, one of the plaintiffs who initially filed suit to block the Wyoming removal/castration plan, Wyoming and the BLM currently allocate nine times more forage for livestock than for wild horses in the two herd management areas from which the horses soon will be taken. There are approximately 850,000 acres of public land in those two areas -- and the ranchers won't tolerate more than approximately 300 wild horses there. You do the math. There is plenty of room for all of Wyoming's four-legged creatures.
The BLM
If Wyoming is not a neutral player here, state actors like Gov. Mead have plenty of company. The BLM, the statutorily-mandated stewards of the horses, also have made clear on which side of the saddle they sit. Even the new plan to remove Wyoming's wild horses is full of circular logic and unanswered questions. What justifies such a low limit for wild horses on the wide expanses of the two herd management areas? Don't wild horses affect grazing lands far less than livestock do? Has the federal government asked the ranchers, benefits of so much public land use, to ease off their pursuit of the wild horses?
More than that, now there are now allegations -- made by the ranchers themselves -- that the Bureau of Land Management actually advised them on how best to maximize their position vis-a-vis the horse groups. The solution? The BLM told the ranchers to sue the federal government (advice, I am sure, that is simply appalling to U.S. Attorney General Eric Holder, whose Justice Department has to defend those lawsuits). Here are the specific allegations contained in a complaint filed on July 27th by the Rock Springs Grazing Association (the RSGA) which acts on behalf of ranching interests in the area:
69. RSGA also met with Deputy Assistant Secretary Sylvia Baca to deliver its demand that BLM remove all of the wild horses on RSGA lands, to explain its rights under the 1981 order, and to formally request removal of all of the stray wild horses. RSGA also presented a copy of its letter to the U.S. Marshal officially asking for removal of all wild horses that have strayed onto the RSGA lands in light of repeated failure on the part of BLM to manage and control the wild horse numbers.
70. The Assistant Secretary attributed the failure to comply with external influences on the Department and Congress, and the lack of funding due to the need to contract for sanctuaries. The Assistant Secretary stated that litigation would be necessary to secure additional funding for wild horse gathers (my emphasis).
I have asked the BLM to comment upon these allegations, but I don't expect the Bureau's lawyers to allow anyone to say anything insightful about the topic. Assuming these allegations are true, they are another black mark upon the Interior Department. Here is a federal official, sworn under at least two federal statutes to guard the welfare of the wild horses, telling ranchers to sue the federal government to prompt quicker political action against the horses. And even if the BLM now backs away from Baca -- "she wasn't authorized to make those representations" -- the allegation itself is compelling insight into the atmosphere that surrounds the BLM's attitude toward these horses. Like the ranchers, the BLM seems to consider them pests and certainly not "cherished" symbols protected by law.
The BLM is part of the Interior Department. The Secretary of the Interior is a man named Ken Salazar and, although his Wikipedia entry strangely is silent on the matter, he is part of a long-time ranching family from Colorado. Salazar's brother, John, who recently represented Colorado's 3rd Congressional District (it's Western Slope), also is a rancher. Rep. Cynthia Lummis (R), who alone represents Wyoming in the House of Representatives, evidently raised Heifers when she was younger. These are some of the people who are judging the competing interests that clash over the fate of the herds. What chances do you reckon those horses have?
The Facts On The Ground
If Wyoming were the size of Delaware, a battle over what to do with federal land might make more sense. But Wyoming contains vast tracts of land owned by the federal government and, to a lesser extent, by the state. If we were talking about a huge number of wild horses and a relatively small number of sheep and cattle then the dynamic of the argument might differ as well. But the number of sheep and livestock in Wyoming now grazing on public land is far greater, orders of magnitude greater, than the number of wild horses who cross over between public and private land. And if the horses were, indeed, as destructive to the rangelands as the ranchers assert, perhaps the mass expulsions might be justified. But the horses aren't nearly as destructive as the cattle and sheep who roam the range.
If you don't believe me, just ask the BLM. The Bureau's own statistics tell the story of the "imbalance" the government and the ranchers want to maintain. Livestock grazing in the United States is authorized on 157 million acres of BLM land. For wild horses, it is restricted to 26.9 million acres of that land (and, as we have seen, there are limits within the limits). There may be over one million cattle and sheep now grazing public land in many western states. At the same time, there are approximately 38,000 wild horses and burros stuffed into only 11 percent of all BLM land. And even this relatively small figure is too high for the BLM; the feds say only about 26,000 wild horses should remain on public land.
Focusing upon Wyoming alone, the "imbalance" between land uses is pronounced. A 2007 article in the Wyoming Business Report indicated that the Rock Springs Grazing Association alone had between 50,000-70,000 sheep and 5,000 head of cattle on its grazing lands (that figure may be more or less four years later). By contrast, the BLM allows only 2,100 wild horses total in the five herd management areas of interest to the RSGA, a swath of land that encompasses thousands of square miles. But, again, even that relatively small number of horses is too great for the ranchers. While the horse advocates were suing the BLM for being too quick to get rid of the herd, the RSGA was suing the BLM for being too slow to remove the horses.
There are costs incurred by the federal government in allowing ranchers to use public lands (at low costs). From a 2008 Congressional Report on grazing fees:
BLM and the FS typically spend far more managing their grazing programs than they collect in grazing fees. For example, the GAO determined that in FY2004, the agencies spent about $132.5 million on grazing management, comprised of $58.3 million for the BLM and $74.2 million for the FS. These figures include expenditures for direct costs, such as managing permits, as well as indirect costs, such as personnel. The agencies collected $17.5 million, comprised of $11.8 million in BLM receipts and $5.7 million in FS receipts. Receipts for both agencies have been relatively low in recent years, apparently because western drought has contributed to reduced livestock grazing.
Other estimates of the cost of livestock grazing on federal lands are much higher. For instance, a 2002 study by the Center for Biological Diversity estimated the federal cost of an array of BLM, FS, and other agency programs that benefit grazing or compensate for impacts of grazing at roughly $500 million annually. Together with the nonfederal cost, the total cost of livestock grazing could be as high as $1 billion annually, according to the study.
Finally, in just the past few days, questions have arisen about the factual bases for the most commonly-stated reason given for removing the horses -- that they mess up the range lands for other users and uses. The American Wild Horse Preservation Campaign, another one of the plaintiffs fighting wild horse removals all over the West, recently commissioned a study from Robert Edwards, a range scientist who worked for 30 years for the BLM before becoming an independent consultant.
With the legal battle joined in Washington over the fate of the herds, the horse advocacy group asked Edwards to go to the two Wyoming range lands in question, check out the horses, and evaluate the impact they have upon the land (and the impact the land has upon them. Here is a link to the Edwards's August 4th Report. It's main findings:
All areas observed and/or documented were found to be in only fair grazing range condition, which is typical of what is found on BLM range lands throughout the west.
Removing a large percentage of the wild horses is not likely to result in an improvement of range condition since the percentage of forage allocated to wild horses is very small compared to the amount of forage allocated to livestock (the forage allocation for wild horse use is only 2% to 3% of the total forage allocation for the [two herd management areas].
Information from the BLM indicates that there are well water sources in these HMAs which are turned on and off to accommodate livestock use. If true, this would reduce the number of water sources available for wild horse use in the summer months.
Limiting the number of water sources forces the wild horses to congregate in areas where water is available, and consequently increases the negative impact they are having on the range areas they are using.
There is no emergency situation in the area that would cause significant damage to the range or harm to the wild horses if they are not removed.
The forage resources needed to support the wild horse population are more than adequate and the horses observed are in good condition.
In other words, the land can sustain a much larger number of wild horses than the BLM, Wyoming, or the ranchers have been willing to admit. Not only that, but the land (the water, actually) is evidently being manipulated by ranchers and/or the BLM in a way that is detrimental to the horses (by denying them water and by pushing the herds toward livestock areas, which which gets them in more trouble with the ranchers). Soon, the BLM, Wyoming, and the RSGA will unleash their own experts to discount Edwards' conclusions. They will likely say that the BLM's calculations are reasonable, supported by evidence, and that the law is settled by consent decree.
This war is eternal and the horses almost always lose. Even if Edwards' conclusions don't hold up in court -- federal judges are required by law to give deferences to the findings of administrative agencies like the BLM -- they have common sense on their side. Blaming the relatively tiny number of wild horses in Wyoming for tearing up the trail, when there are tens of thousands of sheep and cattle roaming around, is like blaming the lifeboats for the sinking of the Titanic. It was a weak argument even before Edwards' findings cast doubt upon it.
As I wrote in my first piece on this topic, I recognize that this is a complicated issue; that the ranchers and government officials don't always wear the black hats in our western tale. There should be reasonable limits on the number of wild horses on public land. What strikes me about this story, however, is how little protection the wild horses of Wyoming really have, despite federal laws and regulations designed to protect them. What jolts me, too, is the strength and ferocity of the political forces arrayed against the horses. There are millions of acres upon which these horses can roam without materially interfering with livestock. There are hundreds of thousands of acres of such room in Sweetwater County alone.
That our government is unwilling to find these horses room -- or even consider doing so -- contradicts the spirit, if not the letter, of federal law. The governor of Wyoming is a rancher. The Secretary of the Interior is a rancher. The lone member of the House of Representatives grew up around cattle. And today ranching interests are routing the wild horses of Sweetwater County. That's an angle you won't see pitched anytime soon by Wyoming's tourism board. It wants you to come to Wyoming to see all the pretty horses, for sure, but it wants you to remain oblivious to what is being done to those horses, and why, in your name.
Read more at www.theatlantic.com
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