Appeals Court: Appeal is Too Late for Wild Horses

Update Aug. 20, 2011: More than a year ago, the 9th Circuit Court of Appeals rejected  an emergency motion to stop the Twin Peaks roundup. Now the 9th Circuit has issued a ruling that the appeal of the District Court’s denial of Plaintiffs Motion for Temporary Restraining Order and/or Preliminary Injunction to stop the round up is moot. Why? Because the roundup has already occurred.

The appeals court did indicate the merits of the case are still at issue before the lower court. The court said, "Plaintiffs’ motion raises serious legal questions concerning whether the large-scale removal of horses conflicts with the Wild Horses Act and whether an Environmental Impact Statement is required before any action can be implemented."

Update Aug. 15, 2010: For a look at the roundup going on now in Twin Peaks, read accounts of observers…. 

Update August 11, 2010: The 9th Circuit Court of Appeals has rejected an emergency motion to stop the Twin Peaks wild horse roundup.

In doing so, the Court of Appeals upheld a denial last week by U.S. District Court Judge Morrison C. England, Jr. of motions filed by Plaintiff In Defense of Animals for an emergency stay, temporary restraining order and preliminary injunction to stop the roundup.

Like Judge England, the 9th Circuit Court of Appeals issued no written explanation for the ruling other than to cite the high standard set by the Supreme Court in the case, Winter v. NRDC, Inc., 129 S. Ct. 365 (2008) to obtain a preliminary injunction or stay issued to keep the status quo pending a lawsuit. For more on that…. 

The Twin Peaks roundup is set to begin today. Attorneys for plaintiffs had this to say: "In Twin Peaks, the Department authorizes four to seven times more privately-owned sheep and cattle than wild horses and burros to graze on Twin Peak’s nearly 800,000-acres – which is federally protected to serve as horse and burro areas.

"Under the Obama Administration for the first time in history, there are now more wild horses in government holding facilities than are left on the Western range. The vast majority of the captured Twin Peaks horses will join the 38,000 mustangs already stockpiled in zoo-like conditions…This scheme is not only fiscally unsustainable, it is also blatantly illegal."

"The Department of Interior has a policy of removing mass numbers of wild horses from the range without fulfilling its obligation to establish the need for the action".

For more on plaintiffs’ Complaint and motions and the Twin Peaks roundup, read Animal Law Coalition’s earlier reports below. 

Aug. 6, 2010: U.S. District Court Judge Morrison C. England Jr. ruled from the bench yesterday, denying motions for a stay, temporary restraining order and preliminary injunction brought by Plaintiffs In Defense of Animals, Dreamcatcher Wild Horse and Burro Sanctuary; Barbara Clarke; Chad Hanson; and Linda Hay to stop the Twin Peaks roundup.

Plaintiffs’ motions are more fully discussed in Animal Law Coalition’s earlier report below.  In allowing the roundup to proceed August 9, the judge said he was satisfied with precautions he believes BLM will take to protect the horses. BLM has said the horses will walk slowly, not run, and water and nutrients will be available. It is not clear how the helicopter typically used to terrify and stampede the horses during a roundup, will instead now encourage the animals to walk toward the holding facilities.

Regardless, plaintiffs wasted no time in filing an appeal to the 9th Circuit Court of Appeals.

Safari Club International and Safari Club International Foundation were permitted to join the lawsuit in support of the Twin Peaks roundups. There are reports the roundup was scheduled now during the heat of summer so as not to interfere with hunting season later. 

Original report: A lawsuit has been filed to challenge the "stampede, round-up and removal of over two thousand wild and free-roaming horses and burros … from the Twin Peaks Herd Management Area … in northeast California and northwest Nevada" and the BLM’s plan to "warehouse[e]" these horses in "zoo-like conditions" in the Midwest.  

Plaintiffs In Defense of Animals; Dreamcatcher Wild Horse and Burro Sanctuary; Barbara Clarke; Chad Hanson; and Linda Hay say that the "stampede, round-up, removal, and warehousing of these wild horses is dangerous, inhumane, unnecessary, ill-conceived, inadequately explained or justified, and is in direct contradiction of the Wild Free-Roaming Horses and Burros Act ("WFHBA"), 16 U.S.C. §§ 1331 et seq., the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 501 et seq., and the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321, et seq."

The case was filed in the federal court for the Eastern District of California against Interior Secretary Ken Salazar, Bureau of Land Management Director Bob Abbey, and Dayne Barron, Field Manager for the Eagle Lake Field Office for BLM.

The Twin Peaks HMA consists of about 789,852 acres. BLM plans to capture 2,300 wild horses and 210 burros and release only about 180 of those captured horses back to the range after most have been sterilized. It is not clear how many horses and burros will ultimately remain in Twin Peaks.  The roundup is set to begin August 9, 2010.

According to the Complaint, "BLM has engaged in a classic example of crafting a solution and then searching for a problem…. Driven by a singular focus of eliminating wild horses from the public lands …, the BLM has turned the requirements of the WFHBA and NEPA on their heads. WFHBA requires that the BLM manage HMAs principally to protect the health and welfare of the wild horse herds living [on public lands]… and maintain a thriving natural ecological balance on these lands, of which the continued existence of native wild horse herds is an integral part….

"NEPA requires that an agency properly define the purpose and need of a proposed action, take a hard look at the various options available for achieving that proper purpose, in particular, its effects on the human environment, consider the comments and concerns submitted by interested parties, and make a decision that is justifiable … and fully explained by the agency. The BLM…ignores the mandates and instructions of both laws in a manner that is both arbitrary and capricious."

Roundups are inhumane

Plaintiffs allege, "Roundups conducted [with helicopters that stampede wild horses into corrals] are dangerous and inhumane". A 2008 report from the Government Accountability Office states that from 2005 to 2007 six of the ten states having Herd Management Areas indicate that at least 1.2 percent of the horses removed from these states were euthanized or died during the gather process. As a result of the Calico roundup last winter, 153 horses including aborted foals have died. Just this past week more than 5% of the wild horses rounded up in Nevada died.

Other WFRHBA violations

As in the lawsuit brought to challenge the Calico roundup, Plaintiffs claim BLM’s policy of rounding up and transporting wild horses "by tractor trailer to long-term holding facilities in the [Midwest], where they will live out their lives in zoo-like conditions far from their home ranges" violates WFRHBA.

Federal District Court Judge Paul L. Friedman warned BLM in the Calico case that its policy of rounding up wild horses and burros and placing them in long term holding facilities may well be illegal. 

U.S. District Court Judge Rosemary Collyer ruled last year in the case, Colorado Wild Horse and Burro Coalition, Inc. v. Salazar, No. 06-1609 (D.D.C 2009):

 "It would be anomalous to infer that by authorizing the custodian of the wild free roaming horses and burros 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. Defendants argue that the horses will not be "eradicated" or "eliminated" inasmuch as BLM intends to continue to manage the horses not in the wild but through private adoption or long-term care.

…But BLM’s directive is ‘to protect and manage wild free-roaming horses and burros as components of the public lands . . ." 16 U.S.C. § 1333(a) (emphasis added). Congress did not authorize BLM to ‘manage’ the wild horses by corralling them for private maintenance or long-term care as non-wild free-roaming animals off of the public lands. Upon removal for private adoption and/or long-term care, the West Douglas Herd would forever cease to be ‘wild free-roaming’ horses as ‘components of the public lands’ contrary to Congress’s intent to protect the horses from capture. Moreover, the statute expressly provides that BLM’s ‘management activities shall be at the minimal feasible level . . . .’

 It is difficult to think of a ‘management activity’ that is farther from a ‘minimal feasible level’ than removal."

As plaintiffs point out, holding wild horses in long term facilities as planned is not managing them to maintain free-roaming behavior or at the "minimal feasible level". Also, WFRHBA is clear that ranges such as the Twin Peaks HMA that are designated for wild horses and burros are to be "devoted principally" to their welfare.

Plaintiffs then claim, "The roundup is illegal because it indiscriminately removes all horses, some of which will not be excess". Under WFRHBA only "excess" horses are to be removed from the range. Plaintiffs say horses must be identified as "excess" while on the range. "It was Congress’ intention that the herds should be culled where the horses are found and only adoptable horses to be rounded up" . In the Calico case, the judge rejected a similar argument.

Relief requested 

Plaintiffs ask the Court to enjoin BLM from moving the wild horses to facilities on land where they are not presently found such as in the midwest or East and from gelding stallions or administering anti-fertility drugs. Plaintiffs also ask the Court to enjoin the BLM from rounding up the Twin Peaks herd "until it has completed an Environmental Impact Statement and record of decision that is in accordance with the requirements of NEPA and the WFHBA".

NEPA claims

One of plaintiffs’ complaints is that the assessment done by BLM is simply "incomprehensible". Plaintiffs also say BLM has failed to:

"analyze the direct, indirect and cumulative environmental impacts and adverse effects of the roundup on the captured horses, including, but not limited to, the health effects from the round-up; the physical and psychological effects of long distance transport and placement in an unnatural environment (i.e. Kansas plains v. Northern California high country) and being placed in captivity separated by sex and age; the physical, psychological and behavioral effects of utilizing anti-fertility drugs on the female horses to be released back onto the range, given that wild horses function in family bands with a Stallion, mare(s) and foals, and that under normal circumstances mares come into season and are bred only once per year with offspring being born in the spring; the physical, psychological and behavioral effects of returning a group of horses to the range which has an unnatural sex ratio (i.e., more stallions (108) than mares (72)) given that wild horses function in small family bands with one Stallion being paired with one or more mares; and the future direct and cumulative effects of immuno contraceptive application of the population’s immune system and viability."

BLM’s "failure to take a hard look at the impacts and effects of the proposed action on the wild horses and burros, which are components of the range ecosystem and naturally function within that ecosystem in a particular way is arbitrary, capricious, and an abuse of discretion".

Plaintiffs say BLM has also violated NEPA by failing to take a "hard look" at alternatives to a roundup, failing to disclose methodology, present hard data and ensure the "scientific accuracy and integrity" of its Environmental Assessment with regard to the appropriate management levels or AMLs necessary to maintain a thriving ecological balance in the Twin Peaks HMA, the alleged damage to the range and water sources, foaling rates and the effectiveness of fertility control treatments.

Plaintiffs say BLM has failed to respond to dissenting scientific opinion with regard to (a) foaling rates; (b) the adverse impacts of fertility control; (c) the actual effectiveness of fertility control drugs; and (d) killing or removal of mountain lions for cattle or sheep.

Indeed. BLM’s Environmental Assessments used to justify roundups of wild horses are typically cookie cutter based on long outdated data, if any. These EA’s typically point to unsubstantiated claims of "range degradation" and "lack of water" to eliminate wild horses and burros from the range, yet ignore the impact of the thousands of cattle and sheep that also graze there.