Judge Friedman Denies Preliminary Injunction But Questions BLM Policies

from  Animal Law Coalition

Posted Dec 21, 2009 by lauraallen

Update Dec. 23, 2009: Judge Paul L. Friedman has denied the motion by plaintiffs In Defense of Animals, Craig Downer and Terri Farley, for a preliminary injunction to stop the roundup of up to 2,736 wild horses from the Calico Mountain Complex herd management areas in Nevada.

But the judge has also rejected that BLM can continue to keep unadopted wild horses and burros in long term facilities. The judge agreed with the plaintiff that BLM has no authority to transport healthy unadoptable horses and hold them in long term holding facilities especially in places where they were not located previously, Oklahoma, Kansas or South Dakota.

The judge, however, found the plaintiffs did not raise this argument until their reply brief and it could not be the basis for a preliminary injunction. The judge said the defendants had not had time to brief the issue fully. The judge did reject the BLM's contention that Congress had ratified its policies of putting unadopted wild horses and burros into long term holding facilities by approving appropriations bills.

The judge suggested the agency postpone the roundup scheduled for December 28 but declined to issue an injunction at this time. The judge reasoned that if the BLM proceeds with the gather, knowing that long term holding may not be an option and with no funds under the Appropriations Act, FY 2010, for euthanization or sale for slaughter, the agency must come up with another solution for the horses it will have removed from the wild. The judge said that once removed as excess, the horses could not at that point simply be returned to the herd areas.

The judge found "untenable" the plaintiffs' other contention that BLM cannot round up and remove horses en masse. The court rejected the plaintiffs' interpretation of the Wild Free Roaming Horses and Burros Act, 16 U.S.C. Sec. 1331 et seq, (WFRHBA) that BLM must determine on a case by case basis those horses deemed "excess" or causing an overpopulation, and then remove them under a tiered approach with the old, sick and lame taken first and then the healthy adoptable horses. The judge said such a process would put the BLM in "an impossible Catch-22"  because the agency could not really evaluate the health or age of horses without capturing them first. The judge found the WFRHBA did not prohibit the BLM's current method of rounding up horses, separating them, sterlizing and returning some and placing others in short term holding facilities for adoption or sale.

Judge Friedman did also say the public and BLM's interest in controlling the overpopulation of wild horses could be negatively impacted by a delay. He said "issuance of an injunction at this stage might lead to substantial growth in already overpopulated herds" in the Calico Complex. The judge said that, according to BLM, a spring roundup could result in more injuries for the wild horses.

This ruling does not end the case. With this ruling, judge rejected the motion for a preliminary injunction to keep the status quo pending a final decision. It is a serious warning to BLM that the judge does not think its policy of keeping wild horses in long term holding facilities, is legal. But, unfortunately, unless BLM takes the judge's advice, the Calico roundup will proceed on Dec. 28.

At this point, the best course of action is to call on President Barack Obama and BLM to stop the roundups. Urge Congress to take action, too, and demand a stop to these roundups!  Go here to find out how you can join the call for a moratorium on BLM roundups of wild horses and burros. 

For more on the plaintiffs' allegations, read Animal Law Coalition's  original report.
  

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BLM Official Says Wild Horses Are Not Starving

Time to "rein in" BLM's wild horse and burro program

December 18, 2:31 PMLA Equine Policy ExaminerCarrol Abel

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A wild stallion on the Pine Nut Range in Northern Nevada

photo by Carrol Abel

Was last years Bureau of Land Management announcement of plans to euthanize 33,000 wild horses a prelude to the BLM program's swan song?  A clamor of voices rapidly growing in number has brought the wild horse and burro program under the spotlight of mainstream press. Conducting business as usual is no longer acceptable to the American public.

The BLM has been operating the program with an omnipotent mind set for so many years they can't seem to function otherwise. Evidence that detail of program policies will not hold up under scrutiny is popping up from all directions.  Can it stand the final test of President Obama's promise of transparency in government.

There seems to be little connection between the left and right hands of upper management. Don Glenn, head of the national program, stated to this examiner, "Wild horses are not starving.  The press repeatedly gets that wrong.  We don't know of any that are starving right now.  The range is in good condition."  Apparently, Glenn did not communicate that to his boss, Department of Interior Secretary Ken Salazar.

"One of the first things he said was something must be done because the horses are starving." said singer Sheryl Crow of her conversation with Salazar in a recent interview with AP reporter Martin Griffith.

The Surprise Field Office recently conducted an unscheduled removal of  over 200 wild  horses near the Nevada/ California border giving advocates no opportunity for legal filing to stop the action. Apparently, Glenn was not aware.  Either Glenn is hiding the truth or management has no idea what the field offices are doing.  Any way one chooses to look at it, this makes a huge statement.

Even Department of Justice lawyers seem to be tripping over their tongues.  Erick Petersen defended BLM's position in a district court hearing to determine the merits of a request for injunction to stop the Calico Complex roundup.  "Removing the animals also will help preserve the endangered and rapidly disappearing rangeland where they live." Petersen said.  Maybe Glenn didn't tell him "The range is in good condition."

Petersen also said "The 1971 law requires removal of excess horses to ensure they are treated humanely." He was joking wasn't he?

Animal welfare groups have been frustrated with BLM contradictions and inconsistencies for some time.  The program istelf would seem to be a contradiction.

District Court Judge Rosemary M Collyer ruled against a Colorado roundup in August of this year saying,
 "It would be anomalous to infer that by authorizing the custodian of the wild free roaming horses to 'manage' them, Congress intended to permit the animals' custodian to subvert  the primary policy of the statute by capturing and removing from the wild the very animals that Congress sought to protect from being captured and removed from the wild."

Celebrities, scientists, Animal welfare and Wild Horse Advocate organizations along with private citizens are supported by members of Congress in their call for an immediate moratorium on wild horse roundups pending Congressional investigation.  And yet the roundups continue at an escalated pace.  By all appearances, it's a last ditch attempt at the annihilation of America's wild horse herds.

A call is growing to remove the wild horse and burro program from the BLM altogether..... a movement also supported by some members of congress.

In all fairness to Ken Salazar, he has been on the job for less than a year.  He inherited the problem. Corralling the BLM herd of management dinosaurs in that period of time is an unrealistic expectation.  A anonymous source stated to this examiner," This is a timely moment.  For the first time in history, this has gotten the Secretary's attention."  The statement is pleasant to the ears.  But the questions remain.  Can Ken Salazar bring the program into the 21st century?  Will the program be removed from the BLM before America's symbol of freedom is no longer free?

http://www.youtube.com/watch?v=-FWefEkv85Q&feature=player_embedded
Disappointment Valley... A Modern Day Western
 

More About: wild horses · BLM · animal rights
 

I-Team: Injunction Filed to Fight Wild Horse Roundup

 Chief Investigative Reporter George Knapp and Photojournalist Matt Adams

I-Team: Injunction Filed to Fight Wild Horse Roundup

Posted: Dec 16, 2009 8:06 PM EST Updated: Dec 16, 2009 8:10 PM EST  

The fate of thousands of Nevada's wild horses was on the line Wednesday in the nation's capital. Advocates for the horses asked a federal judge to stop a massive roundup planned for later this month in northern Nevada.

The focus of the court battle is the proposed Calico roundup. The Bureau of Land Management says it needs to remove 2,700 horses from an area larger than 500,000 acres and it needs to happen even in brutal winter weather. Advocates for the horses argued the BLM action is cruel, dangerous and clearly illegal.

"The whole idea of the Wild Horse Act was the horse living in its natural state on the continent of its origin. Now that's being perverted and they are being made into slave horses, against their will and against the will of the people," said Wildlife Ecologist Craig Downer.

Downer is one of two Nevadans who lent their names to the lawsuit filed in Washington by the group In Defense of Animals to stop BLM in its tracks.

BLM had planned to start the roundup December 7, 2009 but delayed its plans for a few weeks. Unless Judge Paul Friedman orders otherwise, BLM will unleash its wranglers and choppers on December 28, 2009. The three-month project could cost $1.7 million in taxpayer money and remove 90-percet of the estimated 3,000 horses that live on more than half a million otherwise empty acres of public land.

The Calico gather is one of many on the BLM schedule. The bureau wants to capture another 12,000 horses to join the 33,000 already living in government pens. Earlier this year, Downer said the BLM's new found sense of urgency goes too far. "It's totally in your face extremism. It's a bold faced attempt to obliterate, and those few they leave, they sterilize them, cut them down to such miserably low numbers that they will become inbred or some rancher is going to come out and shoot the rest of them," he said.

In its public statements, BLM argues it needs to remove the horses right away to protect the range from overgrazing, even though last year the bureau approved an increase in cattle grazing in the very same range, saying then that damage from horses was negligible.

The lawyer representing Downer and the other parties thinks a winter roundup will kill many of the mustangs but his arguments in federal court focused on the law. "It does not include a roundup such as what is contemplated here. In fact, it is quite the opposite," said attorney Bill Spriggs.

Spriggs told the judge that the law lays out specific steps that must be taken before mustangs can be removed from public land, and that BLM hasn't followed any of them in the Calico Hills. He further argued BLM has no legal authority to warehouse horses in out-of-state holding pens, which is where most of them end up, in part because BLM puts minimal effort into adopting them out.

The judge said that if he agrees with the argument and stops the roundup, he's concerned what would become of the horses already captured. Mustang advocates say its BLM's own fault for not following the law. "That was a self-inflicted wound since they're spending 70-percent of their budget on horses in Kansas and should have spent it managing the horses in the first place," said Spriggs.

Because the roundup is slated to begin December 28, a decision on the preliminary injunction will have to come soon, most likely by next week. If it is granted, the mustang advocates will have the time to launch a much broader legal assault on the BLM's entire approach to the wild horse issue.

The I-Team special report on wild horses, Stampede to Oblivion, is re-airing this Saturday afternoon at 4 p.m. and it covers many of the central issues in this debate.

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America's Wild Horses - A Study in Mismanagement

How the US Government is eradicating an American icon

Over the past 30 years, under pressure from special interest groups and in blatant disregard of the public’s wishes, the BLM has systematically favored subsidized livestock grazing on public lands to the detriment of wild horse populations. The Burns Amendment, slipped into the 2005 federal budget without so much as a hearing or opportunity for public review, was the last nail in the coffin of federal wild horse protection, opening the door to the slaughter of thousands of these living symbols of our Nation’s spirit. A few months later, while in the process of rounding up another 10,000 horses supposedly due to poor range conditions, BLM eased public land grazing restrictions for private cattle. Now BLM is considering simply killing "excess" horses to help balance its budget.

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In 1971, the Bureau of Land Management (BLM), an agency of the U.S. Department of Interior, was put in charge of implementing the Wild Free-Roaming Horse and Burro Act. When the Act was passed, the U.S. Senate stated: "An intensive management program of breeding, branding, and physical care would destroy the very concept that this legislation seeks to preserve […], leaving the animals alone to fend for themselves and placing primary emphasis on protecting the animals from continued slaughter and harassment by man." Sadly, this Congressional mandate has been ignored and, over the past thirty-five years, no strategic plan to keep viable herds of wild horses on public lands was ever developed. 

Pursuant to the 1971 Act, BLM is directed to protect and manage wild free-roaming horses and burros as components of the public lands, and may designate and maintain specific ranges on public lands as sanctuaries for their protection and preservation. Yet, its management policy has translated into a diligent and steady herd reduction campaign, causing America’s wild horse population to dwindle to less than 25,000 and to lose 19 million acres of its legally allocated range.
Approximately 36,000 wild horses and burros adopted through BLM’s Adopt-A-Horse program are unaccounted for, and in 1997, BLM’s Wild Horse and Burro Program Director conceded that about ninety percent of rounded up horses ended up at slaughter. Questioned off-the-record, BLM employees routinely acknowledge rampant mismanagement and disregard for the 1971 Act (see Case Study #1). 


In 1992, wild horses and burros were left out of BLM’s revised mission statement altogether.

“Excess Animals”: A Very Nebulous Concept


The 1971 Act requires that wild horses "be considered in the area where presently found, as an integral part of the natural system of the public lands." The Act also defines "range" as “the amount of land necessary to sustain an existing herd or herds of wild free-roaming horses and burros, which does not exceed their known territorial limits, and which is devoted principally but not necessarily exclusively to their welfare, in keeping with the multiple-use management concept for public lands." By law, only “excess animals” should be removed from the range. It is therefore how BLM determines “excess” that will shape the entire Wild Horse and Burro Program. 


The legal requirement that “excess” be determined based on population monitoring and inventory has been circumvented by allowing BLM to determine “excess” based on whatever information is in its possession at the time a decision is made, rather than requiring that relevant information (such as actual census numbers) be obtained. In fact, only four percent of BLM’s wild horse and burro budget is allocated to population inventory. The legal requirement that BLM consider the “recommendations of qualified scientists in the field of biology and ecology, some of whom shall be independent of both Federal and State agencies,” has also been circumvented or ignored. 

© Laurel Monreal Photography horsesofnature.com

“Excess” is simply determined on paper, using grossly inflated fertility rates (up to 25%, whereas the National Academy of Sciences estimates actual growth rates to be closer to 10%) and generalized data that does not take into account the specificity of each geographic area (foaling rates, mortality rates and foal survival rates can vary greatly from one area to the next). This questionable methodology leads to highly inaccurate population estimates (e.g. an 800% discrepancy in the Salt Wells HMA - WY, 2006). 


In conjunction with flawed population monitoring, BLM relies on the notion of “Appropriate Management Level” (AML) to determine “excess.” AMLs dictate how many horses and burros can be allowed on the range, and therefore what constitutes “excess.” AMLs are the single most important tool in BLM’s arsenal. They are also a moving target: once AML is reached in an area, meaning the wild horse population is deemed at an acceptable level, it is often subsequently lowered, paving the way for more round-ups (e.g. in 2001, the national wild horse AML was drastically lowered to 26,000; since then, it has crept down by a few hundred every year, adding up to a further loss of 1,500 as of 2006). 

AML for a given Herd Management Area (HMA) is based on forage and water availability, or rather, forage and water allocation. Case study after case study have shown that BLM consistently allocates substantially more forage to private livestock and game animals on the very areas that were legally designated for wild horses (e.g. 700% more forage allocated to livestock than to horses in the Stone Cabin Complex - NV, 2007), steadily reducing wild horse AMLs, sometimes to the point of eradication (the so-called “zeroing out” of a herd area). 


Likewise, only a small fraction of water available in a given area will be allocated to wild horses (e.g. 7% in the Spring Mountain Complex - NV, 2006), who will then be removed due to supposed lack of water, while livestock and game animals are allowed to thrive in areas that, by law, were to be “devoted principally” to wild horses (see Case Study #2). Case in point: bighorn sheep can be found on seventy-five percent of Nevada’s Muddy Mountain HMA and are allocated water from the National Park Service (NPS), water guzzlers and specially made dams. These water developments have allowed the HMA to be turned from seasonal into year-round bighorn habitat, a victory for the local hunting lobby, but are not taken into account in determining wild horse and burro AMLs for the area, despite a federal mandate that “all range improvements […] be installed, used, maintained and/or modified on public lands […] in a manner consistent with multiple-use application” (43 CFR 4120.3-1 (A)).


Another critical piece of federal regulation states: “If necessary to provide habitat for wild horses or burros, to implement herd management actions, or to protect wild horses or burros from disease, harassment or injury, the authorized officer may close appropriate areas of the public lands to grazing use by all or a particular kind of livestock.” (43 CFR 4710.5 (A)) This provision is also routinely ignored.

More Round-Ups


Round-ups (or “gathers,” to use a placating BLM euphemism), are BLM’s “management” tool of choice: the fewer horses on public lands, the more convenient for public land managers and special interest groups. Oftentimes, livestock is restocked shortly after wild horses have been removed (e.g. about 1,000 sheep reportedly brought in the Dry Lake Complex just a couple of weeks after 200 horses had been removed from that same area - NV, 2006; ten-year grazing permit granted for 6,882 head of cattle in New Pass Ravenswood HMA the same month as 692 horses are removed from the same HMA due to "lack of forage" - NV, Oct. 2007). 


In addition to the concept of “excess animals,” BLM has several tools at its disposal to justify round-ups. Early on, BLM did not capture wild horses who ranged out of their herd boundaries. Today, if wild horses step out of their boundaries, BLM removes them permanently from public lands. In the state of Nevada, home to about seventy percent of our nation’s wild herds, horses found outside of their federal boundaries are treated as stray animals and sold at auction, usually ending up at slaughter. 


Another well-established BLM practice is to thin out herds to the point where they are no longer deemed genetically viable, and then use the threat of in-breeding as an excuse to zero out such herds completely. It has been estimated that up to three-fourths of our remaining wild horse and burro herds are below population levels that would guarantee their long-term survival. Sex ratios in wild horse herds normally average 50/50. To further affect viability, BLM will stack herds with seventy percent of males, severely disrupting herd dynamics and behavioral patterns. 
Still, BLM’s most often used rationale for round-ups is the threat of starvation and drought conditions: so-called “emergency gathers” are another way for BLM to circumvent the legal requirement that only “excess” animals be rounded up. 


Whereas private cattle and sheep are promptly restocked, if in fact they were removed at all (e.g. almost 50% of the total estimated horse population removed from the Ely District following brush fires, but no reduction in authorized livestock for the 23 affected grazing allotments - NV, 2006), horses are not returned to the area after the “emergency” conditions subside. BLM simply makes the zeroing out of the HMA official by issuing an AML of zero: a wild horse range originally managed under the Wild Free-Roaming Horse and Burro Act is now permanently devoid of wild horses (e.g. Blue Nose Peak HMA, AML of 1 - NV, 2003). Over the years, dozens of HMAs, representing millions of acres, have met this fate.

“This is not a Democracy”
(Jim Sparks, BLM District Manager, at a Sept. 2008 public hearing in Billings, MT)


A 1990 GAO report found that “in many areas where wild horse removals have taken place, BLM authorized livestock grazing levels have either not been reduced or have been increased thereby largely negating any reduction in forage consumption.”  In 1997, Public Employees for Environmental Responsibility noted that “little has changed since the 1990 GAO report.  Wild horse management decisions continue to be made within the BLM on a political rather than scientific basis, and in the political balance between horse and cow, the cattle industry almost always wins.” (see Case Study #3)


Today, BLM continues to conduct indiscriminate round-ups, zeroing out herds in violation of the 1971 Act. In 2001, it obtained a 50% increase in annual budget to $29 million for implementation of an aggressive removal campaign (in 2005, that budget rose to $39 million). Twenty-four thousand horses were slated for capture; no long-term plan was put in place for these horses after their removal.

Case Studies
#1 - Jackson Mountain round-up/Palomino Valley deaths, NV, 2007
#2 - Nevada drought, 2004
#3 - Highland Peak HMA, NV, 2003-07
#4 - Wild burro status: critical analysis

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BLM Destroyed Another Wild Horse Herd While Advocates Sat At Advisory Meeting

Get MAD! Get VERY mad while there are still some wild horses left for us to protect! 

clipped from rtfitch.wordpress.com BLM Destroyed another Wild Horse Herd while Advocates sat at Advisory Meeting December 13, 2009 R.T. Fitch Leave a comment Go to comments BLM’s Don Glenn Openly Lied to Press and Advocates while Wild Horses were Rounded up article courtesy of  The Cloud Foundation Once free, their beautiful lives ruined - Palomino Valley 12/11/09 - Photo by K. McCovey Read The AP’s Martin Griffith’s 12-12-09 article on the Clandestine Buckhorn Roundup of 217 horses (San Francisco Chronicle, Examiner.com) Following the yet-unsolved shooting death of 6 federally-protected mustangs, more of America’s mustangs are removed; at least one mare has died to date. The discovery of shooting deaths of six wild horses on the California-Nevada border has led to the exposure of an apparently clandestine BLM roundup of over 200 horses. The roundup of the Buckhorn Wild Horses was scheduled to begin in August 2010.

Read more --

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A Win For The Horses!

 
H.R. 2996 is now law, Public Law 111-88, Interior Dept. and Continuing Appropriations, FY 2010. Under this law, BLM is prohibited from using any funds "for the destruction of healthy, unadopted, wild horses and burros in the care of the Bureau of Land Management or its contractors or for the sale of wild horses and burros that results in their destruction for processing into commercial products".

This is the mandate that was proposed by Sen. Mary Landrieu (D-LA, telling the Senate:


"We ... are down to just a few herds of horses. And the reason that i think that this is even more important than to just western states or the ranchers or landowners or humane society and others is because for the people generally, the idea of wild spaces with wild horses is something that is really part of our heritage. And we want to make sure that that heritage isn't lost, that we're being responsible in terms of the way the land is being used for multiple purposes and from the perspective of horse advocates, that the horses themselves are being treated fairly.
"And none of that right now is being done in the way that most people, i believe, would appreciate or would be satisfied with. There have been any number of studies that i'm going to submit to the record.
"Most recently, the congressional research service as well as the government accounting office has suggested major changes to the program. I'm just going to go through a few possible options. One, the creation of several public-private sanctuaries. This has been suggested by a few fairly high-profiled individuals in our country. The idea has merit. We are working with a variety of different groups along with the department to think about the possibility of creating public-private partnerships, large sanctuaries, maybe 500,000 or a million acres where thousands of wild horses could not only roam freely in a healthy way, but they also could potentially become ecotourist opportunities for some of the states and communities as it would be an attraction that could potentially make money and attract people out to some of these western areas. Or, for that matter, grant rural areas in other parts of the country.
"There is a possibility to make some smart investments to step up some of the adoption programs that might work. And there are any number of scientific and new technologies that can be brought to bear in terms of breed management, reproductive issues that could help us get a much more cost-effective, sane and humane approach to this problem. 

 This bill passed the Senate on September 25, 2009.
 
For more go to Animal Law Coalition

Image via Wikipedia Wild stallion Lazarus and part of his band in West Warm Springs HMA, OR

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