Appeals Court Allows Triple B Roundup
|July 19, 2011||Posted by russmead under Wild horses and burros|
Update July 19, 2011: The 9th Circuit Court of Appeals has now denied an emergency motion for an injunction to stop the Triple B roundup pending an appeal of U.S. District Court Judge McKibben’s order. Last week Judge McKibben denied a motion for a preliminary injunction to stop the roundup.
The BLM is now free to proceed with the roundup. The 9th Circuit Court of Appeals will hear the merits of the case, but the roundup will be long over by the time a final decision is reached. Too late for the horses.
For more on the roundup and the litigation to try to stop it, read Animal Law Coalition’s report below.
Update July 15, 2011: Just hours after Nevada federal District Court Judge Howard D. McKibben denied a motion for preliminary injunction to stop the Triple B roundup of wild horses, the 9th Circuit Court of Appeals issued an order granted an emergency injunction in the case.
This means for now, pending a decision by the 9th Circuit, the BLM cannot round up and remove wild horses from the Triple B, Maverick Medicine and Antelope Valley herd management areas (HMAs) in eastern Nevada.
The appeals court has set a schedule for filing briefs in the case.
District Court Judge McKibben found the BLM "properly decided" there were excess wild horses that must be removed to maintain "a thriving ecological balance". The judge accepted the BLM’s claim the horses are reproducing " at a rate of 20-25% annually"; the judge said the appropriate management levels or AMLs decided by BLM and information in the Environmental Assessement horses indicate the wild horses are "degrading the range habitat". He rejected as having "little relevance" the plaintiffs’ assertions that the BLM failed to consider the impact of livestock grazing on the range.
Judge McKibben also rejected that the designated ranges or herd management areas must be "devoted principally" to wild horses and burros. This despite the plain language of the Wild Free-Roaming Horses and Burros Act, 16 U.S.C. Sec. 1331, which even with the 1978 amendments emphasizing multiple uses of public lands, specifically states ranges designated for wild horses and burros must be "devoted principally" though not exclusively to them.
The judge also found the roundup and removal did not violate the WFRHBA mandate to manage the herds at "the minimal feasible level". The judge basically sidestepped the issue, summarizing "plaintiffs have failed to show that a gather of this magnitude is not warranted in order to protect the rangeland habitat and maintain a thriving natural ecological balance. As discussed above, the horse population has grown at an incredibly fast pace, and their numbers are more than five times the lower range AML. Absent intervention, both the horses and the range will suffer".
The judge did not find any violation of the requirement to manage herds at "the minimal feasible level" in roundups of "non-excess horses into short-term holding facilities and returning them to the range, as well as treating mares with contraceptives" and freeze marking even if these actions destroy families, something the judge called "inevitable".
We’ll see if the Appeals Court agrees. For more on this case including the BLM’s environmental assessments, read Animal Law Coalition’s report below.
Original report: A lawsuit has been filed to try to stop BLM’s planned round up and removal of at least 1,726 wild horses from 1,682,998 acres of the Triple B, Maverick Medicine and Antelope Valley herd management areas (HMAs) in eastern Nevada.
Plaintiff The Cloud Foundation describes, "The wild horses of the Triple B, Maverick Medicine and Antelope Valley HMAs are free-roaming on the remote high desert mountains and valleys of east central and northeast Nevada–north of Ely, south of Elko on the Utah border. They have been characterized as a diverse, colorful, intermingling herd with some possessing old mustang origins. Many wild horses descend from an old Shoshone Indian herd known for pintos and paints, as well as a number of medicine hats, horses sacred to Native Americans".
Only 472 horses would remain after the Triple B roundup, and the mares would all be treated with an immunocontraceptive drug, PZP, to prevent pregnancy for up to 2 years. This would leave an unnatural sex ratio of 60% male.
46,000 cows and sheep would be allowed to remain to graze.
According to the Bureau of Land Management, the 1,726 wild horses, with about 975 acres per horse, are destroying the range. But apparently 46,000 cows and sheep are having no effect at all on the condition of the range or water. The BLM refused even to consider the effect of so many cows and sheep on the range, let alone reducing their numbers.
As the Complaint filed by Plaintiffs The Cloud Foundation, Craig Downer and Lorna Moffat explains, "Those that are not re-released (about 1,700) would be transported by big rig trucks to long term holding facilities in the Midwest of the United States, where they would live out their lives in confined, zoo-like conditions, separated by sex or sterilized, wild and free-roaming no more.
"Family members would be permanently separated-stallions and mares from each other, and mares and stallions from their foals. Long-term family bonds would be forever severed. Incarcerated in long-term holding facilities in the Midwest, stallions would be gelded, mares would typically be separated from the gelded stallions, and the acres per wild horse in these fenced facilities would be only a tiny fraction of what it is in their natural homeland in the HMA."
The BLM is required to justify its brutal roundups and removal of wild horses and burros from the range in Environmental Assessments called EAs. Under the National Environmental Policy Act, "whether by Environmental Impact Statement or Environmental Assessment, the agency must ‘study, develop, and describe appropriate alternatives to recommended courses of action in any proposal…’" 42 U.S.C. §4332(E). The implementing regulations provide that this consideration of all reasonable alternatives is "the heart of" the environmental analysis. 40 CFR §1502.14.
EAs when issued in cases recommending roundups of wild horses and burros are typically cookie cutter reports go something like this: The few wild horses and burros, as in this case, are causing degradation of the range and water sources; the range cannot support the horses and most or all are "excess" which must be removed.
Typically, these EAs fail to mention the numbers of livestock that are more likely the culprit of any range degradation or lack of water. There are any number of cases where the evidence establishes that, in fact, the range can support the few wild horses that under the Wild Free Roaming Horses and Burros Act of 1971, 16 U.S.C. §§1331 et seq., are supposed to be protected from "capture", "harassment" and "death" and managed at "the minimal feasible level". Only "excess" horses, those that represent an overpopulation, can be removed. The goal is to maintain a "thriving ecological balance".
In this case the Decision Record ("DR"), Finding of No Significant Impact ("FONSI"), and Final EA ("FEA") were issued on May 17, 2011. True to form, BLM claims the few horses are degrading the range. As the plaintiffs’ point out, "the BLM [fails to] explain how any noncompliance with land standards …is not primarily the result of livestock grazing, which is about eight times higher and more intensive than grazing from wild horses". Complaint, par. 36.
The roundup was to have begun by now but the BLM delayed it pending the July 14, 2011 hearing before the Nevada federal District Court on the plaintiffs’ motion for a preliminary injunction to stop the roundup and removal.
The plaintiffs claim BLM is in violation of the WFRHBA for failing to manage these herds at the "minimal feasible level". As the Complaint states, "the BLM chose an alternative that manages wild horses more intensively than the ‘minimal feasible level’ of management by unnecessarily subjecting the wild horse herds to harmful immunocontraceptive drugs and an artificial and unnatural skewing of the sex ratio to 60% males, both of which cause harm to the behavioral ecology and social structure of wild horse herds."
Also, according to the Complaint, the BLM has failed to make a determination that the horses are indeed "excess". Under the WFRHBA, only "excess" horses can be removed. BLM says the number of horses exceeds the "appropriate management level" or AML, basically the numbers of horses, usually stated as a low to high, BLM says the range can support. The numbers relied on are at least ten years old; some date back to 1993. Also, it is clear from the EA BLM is removing wild horses to obtain what would be the low end of the AML. And, the "BLM’s own June 2010 Wild Horses and Burros Management Handbook (p. 47) states: ‘Justifying a removal based on nothing more than the established AML is not acceptable’".
The plaintiffs further claim BLM violated the WFRHBA by failing to manage the herd management areas "principally" for wild horses and burros.
The Complaint says the BLM violated NEPA in refusing "to fully consider, in the EA, reducing livestock levels" and did not accurately or fairly consider there are predators, mountain lions, that could control the wild horse population.
The Cloud Foundation notes, "Taxpayer dollars paid to the infamous Sun J helicopter roundup crew alone will total approximately $600,000 and that’s just the beginning of the expenditures. The costs in short-term holding, where all the horses will go at least temporarily, will be $8,000 per day based on the target number of horses to be removed. Incarceration for life will add millions to the price tag-all funded by American taxpayers."
In the Complaint which names Dept. of Interior Secretary Ken Salazar, BLM Director Bob Abbey and Nevada field managers Gary Medlyn and Brian Fuell as defendants, the plaintiffs ask the Court to enter a permanent injunction to stop the roundup "unless and until the BLM has fully complied with the requirements of NEPA and …WFHBA. Activities to be enjoined include but are not limited to:
1) the utilization of helicopters or other means to chase and capture wild horses and burros for purposes of removing them from the range;
2) the utilization of helicopters or other means to chase and capture wild horses for the purpose of injecting mares with immunocontraceptive drug known as PZP and then returning them to the range;
3) injecting any mares with the immunocontraceptive drug known as PZP;
4) removing more mares than stallions resulting in an unnaturally skewing of the sex ratio of the herds on the range;
5) gelding any stallions; and
6) shipment of wild horses to long-term holding facilities in the mid-west."
Julie Cavanaugh-Bill and Rachel M. Fazio are the attorneys for plaintiffs in this case.