By Laura Leigh, Special to Return to Freedom
In what may be a precedent-setting decision, the 10th Circuit of Appeals recently upheld a lower court ruling that essentially denied the claim that the removal of wild horses from the range is based solely on a numbers claim.
Central to the appeals court’s Oct. 11 ruling: Its determination that the Bureau of Land Management cannot equate overpopulation with exceeding the BLM’s appropriate management level, or AML: the agency’s estimate of the number of wild horses that can live on a given range.
The case dated to 2014, when the BLM removed 1,263 federally protected horses from the Wyoming Checkerboard area: a 2 million-plus acre strip of land near Rock Springs that includes both public and private parcels separated by few fences. Property owners whose livestock graze their land requested the removal.
Litigation ensued, with the State of Wyoming on the side of removal based on AML. Wild horse advocates, including Return to Freedom, AWHPC, and the Cloud Foundation argued that AML was an insufficient justification for removing wild horses and that analysis must be broader.
In 2015, a federal judge in Wyoming ruled that the roundup violated the National Environmental Policy Act (NEPA) because BLM failed to consider alternatives to removing the wild horses.
In affirming the lower court’s ruling, the appeals court on Oct. 11 stated that “the act directs the BLM to maintain an inventory of wild free-roaming horses and burros on public lands, saying the inventory’s purpose is in part to determine whether an overpopulation exists and whether action should be taken to remove excess animals.”
The opinion continues: “…The BLM has not determined that action is necessary to remove the excess animals …. The BLM is under no statutory duty to remove animals from the seven (Horse Management Areas at issue.”
On Oct. 14, 2016, in a separate case also dating to 2014, the 10th Circuit again sided with wild horse advocates, overturning a lower court ruling and finding that the BLM had violated both the Wild Free Roaming Horses and Burros Act and Federal Land Policy Management Act (FLPMA), when the agency rounded up and removed the wild horses from the Checkerboard, and cannot treat private property like public land. The ruling effectively halted another roundup planned for this fall.
The appeals court’s ruling in the State of Wyoming case, in particular, has created some confusion for many following wild horse and burro issues in the American West. In part, that’s because many in the ranching community, and even the federal government itself, have perpetuated a fiction that simply being over AML means removal is a legal obligation. It’s not.
In 2015, Eureka County, Nevada, and local ranchers tried to stop the return of wild horses to the Fish Creek Herd Management Area (HMA) in Nevada. The suit called for the permanent removal, asserting that their numbers were over AML and that BLM lacked the authority to return wild horses, treated with fertility control, back to the range.
The petition to “stay” (stop) the return was not successful (Return to Freedom and Wild Horse Education were intervenors in the case). In that instance, the court ruled BLM possessed the authority to manage wild horses in compliance with multiple factors, not simply remove animals to a preset number.
Crucial to any explanation is that “inventory of wild horses” is a factor that then triggers an evaluation of other factors that includes “inventory of rangeland health.” Including all variables creates a comprehensive equation, yet if the variables themselves have no validity then the equation is not viable. Often this is the reality of how we “manage” wild horses and burros in our country.
The BLM Wild Horse and Burro Handbook (H- 4700-1, Appendix 3) uses a three pronged approach to setting AML:
* Tier One: determine whether the four essential habitat components (forage, water, cover and space) are present in sufficient amounts to sustain healthy wild horse and burro populations and healthy rangelands over the long-term.
* Tier Two: determine the amount of sustainable forage available for wild horse and burro use.
* Tier Three: determine whether or not the projected wild horse and burros herd size is sufficient to maintain genetically diverse wild horse and burro populations (i.e., avoid inbreeding depression).
The handbook describes forage, water and trend monitoring and mapping, over a minimum period of three to five years, to be analyzed.
All of that may sound like the beginning of a valid dialogue for a sound management plan. However, words and implementation in any management plan are not always congruent.
In 2013, the National Academy of Sciences (NAS) released the findings of a 12-point comprehensive study on the BLM Wild Horse and Burro Program. The report repeatedly notes the program’s severe data deficit.
As an example, deficits in inventory and reproductive rates are cited in Chapters 3 and 6 of the study. Those populations exist on rangeland that has either a lack of data or a deficit in the appropriate management for multiple uses.
Rangeland health is one of the most crucial components to maintain any healthy population of any species. Public Employees for Environmental Responsibility (PEER) released the results of a rangeland health mapping project in 2014 (view PEER’s interactive map here).
What are “rangeland health standards?” The purpose of the standards and guidelines at Title 43 Code of Federal Regulations (CFR) § 4180 are to provide a measure to determine land health, and methods to improve the health of the public rangelands.
Issues that reflect severe degradation to our western landscape by domestic livestock go back more than a hundred years. This is not an “anti-ranching” statement; it is a fact.
(To learn more about the history of the federal grazing program and the effects on the landscape read “The Western Range Revisited: Removing Livestock from Public Land to to Conserve Native Biodiversity.” For more about grazing, see the video below this article.)
As advocates for wild horses and burros, we face increasing challenges to create valid equations to sustain healthy populations when the land itself is in trouble. Either due to funding deficits, or incompetent management, the fact remains that the resources that our wild things depend on are either not monitored and/or managed inappropriately.
In 2016, the U.S. Fish and Wildlife Service chose not to list the greater sage-grouse under the Endangered Species Act. Instead, the federal government chose to pursue on an interagency, interdisciplinary approach to conservation of habitat.
This presented an opportunity to integrate wild horses and burros into the larger picture to create sustainable and fair use.
Unfortunately the Appropriated Management Level (AML) on our ranges, is not based on good or current science, Rangeland Health therefore is also a phrase that is nothing more than a shot in the dark which perpetuates the current broken paradigm.
In addition, we have seen inaccuracies increase as damage to the landscape has been disproportionately placed on wild horses. The method used by the U.S. Bureau of Land Management to assess range conditions is seriously skewed toward minimizing impacts from domestic livestock and magnifying those from wild horses and burros, according to an appraisal by Public Employees for Environmental Responsibility.
As advocates for wild horses, we find ourselves once again feeling like a card player in a poker game. Were wild horses treated as a mere footnote in the new land-use planning process or was the omission intentional to satisfy other uses of our increasingly damaged public land?
Rulings like the one handed down on Oct. 11 by the Tenth Circuit will become increasingly valuable tools in the toolbox of an advocates who may very well find themselves faced with an increasing need to litigate in order to gain a fair voice for wild horses in process and action.
Laura Leigh is the founder of Wild Horse Education. This piece was edited by RTF for publication.