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.

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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

The Wyoming Tourism Board wants you and your family to come see the wild horses in Sweetwater County, but you better go quick. Beginning next month, federal officials and local contractors will roundup and remove approximately 700 of those horses (about 70 percent of the herd) to satisfy the complaints of the cattle and sheep ranchers in the area who don't want to share land with federally-protected horses. The "cherished," "living examples" of Wyoming's western heritage will be penned in and then given up for adoption or sold at auction. Many will soon die. Some may even be slaughtered for meat. All will likely be gone from view in Sweetwater County. You and your family, having traveled to southwestern Wyoming, may be plum out of luck. 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.

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Wild Horses Are (Again) Losing Their Home on the Range
By Andrew Cohen

Jul 28 2011, 10:30 AM ET 40
America's wild horses are in trouble, and the federal government isn't helping

Rachel Reeves

Why did this animal that had prospered so in the Colorado desert leave his amiable homeland for Siberia? There is no answer. We know that when the horse negotiated the land bridge... he found on the other end an opportunity for varied development that is one of the bright aspects of animal history. He wandered into France and became the mighty Percheron, and into Arabia, where he developed into a lovely poem of a horse, and into Africa where he became the brilliant zebra, and into Scotland, where he bred selectively to form the massive Clydesdale. He would also journey into Spain, where his very name would become the designation for gentleman, a caballero, a man of the horse. There he would flourish mightily and serve the armies that would conquer much of the known world.
-- James Michener

It's been a hot, stormy summer on the Red Desert range in southern Wyoming, around Rock Springs and the state's southern boundary with Colorado, where Interstate 80 takes long-haul truckers and tourists through one of America's least hospitable landscapes. The desolate land even includes Sweetwater County, one of those romantic cowboyesque names that mockingly crop up from place to place in the Rocky Mountain West, more an aspiration than a reality when you consider that there isn't much water there and what there is isn't so sweet.

In this forlorn place are two "herd management areas" called "White Mountain" and "Little Colorado," places were some of America's wild horses roam free pursuant to federal rule and regulation. According to Bureau of Land Management statistics, the federal government owns or controls 849,033 acres of land in the area, Wyoming owns another 15,877 acres, and private entities own 149,647 more. BLM officials estimate that, after the 2011 foaling season, there are approximately 970 wild horses on White Mountain and Little Colorado lands.

If you do the math, based only upon the federal land figure, it comes to 875.29 acres per horse. Do a little more math and you learn that 875 acres equals approximately 1.37 square miles. Ask any horse owner you know if she could get by on that horse-to-land ratio and the answer is an immediate and emphatic "Yes!" At first glance, it seems like a perfectly harmonic arrangement; our nation's wild horses peaceably tending to our nation's less desirable lands out of the way of most human traffic. The symbol of our nation's history and growth simply left alone to graze land most of us would never see if we were to live a hundred lifetimes.

But alas it's a lot more complicated than that. Intertwined private ownership of lands within the management areas, differing land-use priorities, a lack of bureaucratic courage and creativity, and a 30-year-old deal between ranchers and a long-gone horse group, all have eliminated the possibility of simply working the acreage numbers for the benefit of the horses. The herd areas themselves are part of a "checkerboard" pattern of public and private land (the ratio is close to 50-50, say ranchers) and the horses themselves haven't helped their own cause. During the winter, they often migrate from public land onto private land, where they are considered a nuisance to some property owners.

This natural pattern has persisted for generations and it's been closely monitored by the feds for at least the past 30 years. With this history, geography, and horse biology in mind, the BLM announced last month that there were, again, too many wild horses on the two Wyoming ranges. Wildlife officials now plan in mid-August to begin to cull roughly 70 percent of the herds out of Little Colorado and White Mountain in a particularly controversial way. And, in response, wild horse advocacy groups and others filed a federal lawsuit Monday in Washington, D.C. seeking a restraining order that would halt the roundup.

All the time and all over the West, horse advocacy groups battle the federal government over the fate of wild horses. The story is almost always the same. The "horse lobby" cannot compete politically (i.e. financially) with the cattle or ranching industries. Invariably, it's the wild horses which lose out to the cattle or to the sheep or to other business interests. And invariably, its the federal government, acting through regulators who are captive to the industries they are supposed to regulate, which helps ensure that this occurs. In this case, for example, we see the federal agency responsible for protecting wild horses struggling to justify a decision that undoubtedly will harm a great many of those horses and, indeed, the future of those herds.

Sell the cow, buy the sheep, but never be without the horse. -- Irish Proverb

On June 14th, the BLM announced a plan to remove all of the wild horses on Little Colorado and White Mountain and to then return a small number of castrated or spayed horses to the range. Here is how the Bureau describes how the roundup occurs:

Multiple capture sites (traps) would be used to capture wild horses within the White Mountain and Little Colorado HMAs... Capture techniques would include the helicopter-drive trapping method and/or helicopter-roping from horseback. Bait trapping may also be utilized on a limited basis, as needed.

(These roundups can be so disturbing that they warrant their own treatment in a future article. I will try to get to it later this summer). Just one week later, however, under heavy fire from mortified advocacy groups, the Bureau partially changed its tune. It increased the number of horses that would be returned to the lands and decided not to spay the mares. Still, nearly 700 of 970 or so horses now on the Little Colorado and White Mountain range will soon be gone if the BLM gets its way. Here's how Interior Department officials described their new plan:

This modified decision returns about 177 geldings to the two HMAs to reach appropriate management level (AML). AML is the point at which the herd's population is consistent with the land's capacity to support wild horses in balance with other public rangeland uses and resources. The projected wild horse population remaining on the range following the gather would be about 205 in the White Mountain HMA and about 69 in the Little Colorado HMA.

There is no evidence that the horses are harming each other. And no factual detail about how their population has created an "imbalance" upon the vast range lands. Instead, Lance Porter, Field Manager at the Rock Springs office of the BLM, justified the "modified" decision" by writing that he had "concluded that gathering the excess horses is necessary to preserve and maintain a thriving ecological balance and multiple-use relationship" on the land. By bringing back only castrated stallions to the two Wyoming herds, Porter's plan was meant to "prevent the necessity to gather more frequently due to lower population increases over time."

Going forward, the two herds will be genetically limited in ways the government has not yet fully evaluated. This is perhaps the most significant part of the new BLM plan. It doesn't just purport to addres the current "overcrowding" it sees on these ranges. It seeks to impact the ability of these herds in the future to breed the way wild horses have bred for thousands of years. It's a sort of genetic engineering which horse advocate groups say needs a lot more scientific review before it can be implemented in the wild.

Among the many options that were considered and rejected by the BLM was the concept of revising the existing "management level" so that more than 205-300 horses would be considered an "appropriate" number to graze on the hundreds of thousands of empty acres. Those figures (205-300) arose in 1981 as part of a settlement in a federal lawsuit over the fate of the horses. The party that sought (and obtained) the drastic limitation on the number of wild horses on the lands is an organization known as the Rock Springs Grazing Association. In 2007, according to the Wyoming Business Report, the Association celebrated "100 years of unity."

Here's what else the business paper had to say about the group:

Today, the grazing association has about 50,000 to 70,000 sheep and about 5,000 cattle using its deeded and leased lands. That's compared to 200,000 to 300,000 sheep when the grazing association was first formed. The numbers have not increased in recent years due to seven years of drought and conservative management. Charging fees for surface use, the RSGA generates revenue for its shareholders while welcoming the energy industry. From trona, coal and natural gas, to pipelines and energy transmission lines, RSGA shares its property

Shares its property with the energy industry, that is, but not with a relatively small number of the nation's wild horses. Although the federal government frequently asserts itself to reshape land use disputes out West, the Interior Department evidently wanted no part of revising the old limits endorsed by the RSGA. In its June "Environmental Assessment" of the matter, the one which is now used to justify the looming roundup, the Agency wrote:

Deviating from existing policy, planning decisions, and agreements reached pursuant to the District Court Order are not considered options nor are they within the scope of this EA. Without the cooperation of private landowners, there is a possibility that this HMA could be eliminated or boundaries redefined. Therefore, this alternative was considered by (sic) eliminated from detailed analysis.

In other words, the Agency spent no "detailed" time evaluating whether the RSGA would cooperate more fully with the government to allow more horses to stay on site-- even though the government says it owns more than 80 percent of the land of the Little Colorado and White Mountain ranges. This is hardly a neutral or objective position for an administrative agency to take-- and perhaps a judge will even doom it as arbitrary and capricious. And here is the most revealing portion of the BLM's circular rationale for removing so many horses at once and then precluding the herd (through the gelding of its sires) from recovering as nature intended.

An alternative considered but not carried forward for detailed analysis was the incremental approach of removing excess wild horses from the HMAs over a period of time. This alternative does not meet the purpose and need to maintain the AMLs, as the existing population of wild horses within the HMAs is currently above the established AMLs and excess wild horses need to be removed in compliance with applicable regulations described in Section 1.3. Due to the number of excess wild horses to be removed and the large geographic area of the HMAs, this technique would be ineffective and impractical to meet the purpose and need.

This passage tells us that, for the BLM, the most important factor here was to reduce the horse population to fit it within the range established 30 years ago. That goal, we learn here, overrode consideration of a number of other factors, including the current health of the horses and the future of the herd. The Agency didn't even reach out to the RSGA to see whether there was any room for compromise. The potential solution of removing fewer horses simply "did not meet the purpose and need" to maintain the 30-year-old deal, the Agency determined, and the BLM sure wasn't going to stick its neck out for a bunch of wild horses it is by law sworn to protect.

"I'd rather have a goddamn horse. A horse is at least human, for God's sake."
-- J.D. Salinger, Catcher in the Rye

On Monday, the American Wild Horse Preservation Campaign (AWHPC) and other advocates filed a federal lawsuit seeking to halt the roundup before it begins. While you were worrying about offending the good burghers of Rock Springs, the complaint tells the officials at the Interior Department, you were violating the National Environmental Policy Act and the Wild Free-Roaming Horses and Burros Act as well as the procedural guidelines contained in the Administrative Procedure Act.

Here is how the complaint describes the ways in which one of the named plaintiffs would be harmed by the current roundup plan.

Donna Duckworth visits the White Mountain and Little Colorado HMAs nearly every day, photographing the wild horses and scenery, walking, and otherwise enjoying the beauty of the area. She visits the horses so regularly that she now recognizes individual wild horses and their family groups... Based on her frequent visits to the HMAs, she can also accurately predict where the wild horses will be found based on the weather and the time of the day. She observes that many other people share her interest in the wild horses. Nearly every night she goes out to the HMAs, she sees people looking for and watching the wild horses. Ms. Duckworth experiences great aesthetic enjoyment in viewing wild horses engaging in natural social behaviors in these HMAs - such as mothers caring for their young and other young horses, and stallions protecting mares and foals as they nurse.

As for the legal allegations, the plaintiffs say that the Bureau violated both the letter and spirit of federal law, as well as its own rules, by issuing its "modified decision" without affording the public an opportunity to comment upon the new plan and by failing to adequately protect the "viability" of the two wild horse herds. Federal law, the plaintiffs say, requires the BLM to undertake its "management activities" at "the minimal feasible level" and not en masse as contemplated by the removal of nearly 70 percent of the existing herd. To the extent that the 1981 court order contradicts federal law, the horse groups say, federal law must prevail.

Here's one passage from the complaint that offers some flavor as to what the plaintiffs say is at stake in the case:

The BLM's decision to roundup large numbers of wild horses from these herds and return only castrated stallions harms AWHPC's organizational interest and the interests of its coalition members in protecting and preserving viable free-roaming herds of wild horses on public lands for generations to come. The decision to create "minimally reproducing" herds of wild horses in Wyoming is inconsistent with AWHPC's goal of protecting viable, free-roaming herds of wild horses and will set a precedent for wild horse management in other HMAs that would allow the BLM to pursue actions that alter the horses' natural behaviors, change their social dynamics, and harm the integrity and genetic viability of their herds on a broad scale.

Tom Gorey, senior public affairs specialist at the BLM in Washington, said Tuesday that the Agency has no comment about the pending litigation. It is likely, however, in the next few days, that the BLM will move to dismiss the complaint by arguing that the Agency complied with all procedural requirements and that the federal courts are mandated by law to afford great deference to the decisions made by administrative officials.

I asked Cindy Wertz, a public affairs specialist at the BLM's Wyoming State Office, whether the BLM had contacted the Rock Springs Grazing Association to see if there were wiggle room on the horse limit in the White Mountain and Little Colorado areas. She blew off my question. "We're always having discussions with various public land users, partners and permittees," she told me via email. "I couldn't comment on what is actually discussed during them." Meanwhile, Wyoming, wake up! You advertise the "wild horses" of Sweetwater County in your online tourist material but if you don't chime in soon on this fight there won't be any horses left in Sweetwater County for tourists to sightsee.

The horses paw and prance and neigh
Fillies and colts like kittens play
And dance and toss their rippled manes
Shining and soft as silken skeins
--Oliver Wendell Holmes

Everyone but the most ardent zealots agree that wild horses do have to be "managed" from time to time by the Bureau of Land Management. Reasonable people on both side of the wild-horse divide understand that the occasional culling of herds has benefits both to the horses themselves and to the neighboring flora and fauna. And the federal judges over the decades, over the centuries even, have approved herd culls. Horses may be the great American symbol but when it comes to animal control they are often treated like many other wild animals.

Some people who count even see them as pests. Not surprisingly, when you talk to the ranching people, they offer a same planet/different world sense of the problem. Don Schramm, the office manager of the Rock Springs Grazing Association, has his own complaints about the BLM. He told me Wednesday that the Agency "has not been able to do its job" of culling out more wild horses from public and private ranch lands because of a "revolving door" of horse groups who have challenged the BLM's actions at every turn. The White Mountain and Little Colorado herds, Schramm says, mostly graze on private lands.

"No," he told me, the BLM did not contact the Grazing Association to see whether the group would be amenable to revising the limit on wild horses in the two Wyoming herd management areas. But it probably wouldn't have mattered anyway. "We are not going to allow any more than what's there," Schramm said. Thousands of wild horses have already been taken from the range over the past decades, he told me, and thousands more will have to be taken in the future. "It's complicated," he said, referring to the diversity of interests which coalesce around this arid, windswept country.

Schramm told me that his group has worked in concert with the BLM for decades, usually together on one side of the fight against wild horse advocates. "The horse numbers" out West today "are obnoxious," Schramm said. "They are so far out of management perspective and prescription that they are conflicting with wildlife. You've heard of the Australian rabbit? Well, we are on our way with the wild horse." Schramm said that his group had just learned of the federal lawsuit and he offered no comment on it.

Wyoming may officially be called the "Equality State" and its motto may be "Forever West" but no one should be fooled into thinking that the wild horses there get equal treatment or that a bunch of castrated stallions tending to a genetically unnatural herd is what Americans think about when they think of the heritage of the Wild West. Instead, the story of these two herds is a story of the federal government, steward of America's wild horses, consistently taking sides against the interests of those horses. In this case, it seems to me, the feds didn't even bother to fully justify what they had already decided to do. All that public land and the government can't figure out a way to better protect those horses? Please. A decision by U.S. District Judge Amy Birman Jackson is expected soon.

Related articles

• Wyoming Wild Horse Castration Plan Dropped By Feds (huffingtonpost.com)
• Wild Horses: "D" is for Destroy, Devastate and Decimate - the BLM's plan for Wyoming's Wild Horses (rtfitch.wordpress.com)