Court Denies Motion to Dismiss West Douglas Herd Case
|July 1, 2011||Posted by russmead under Wild horses and burros|
Update: July 1, 2011: U.S. District Court Judge Rosemary Collyer has entered an order denying a motion by the defendants to dismiss this case. The defendants argued the case should be dismissed because BLM delayed the planned roundup of the West Douglas herd from 2010 until 2011.
The judge pointed out, the BLM’s decision to delay the roundup "does not effect any change to the allegedly improper decision to eliminate the herd as soon as practicable."
The announcement of BLM’s decision to delay the roundup came just days after the Colorado Wild Horse and Burro Coalition filed a motion in 2010 to hold Interior Secretary Ken Salazar in contempt of U.S. District Court Judge Rosemary Collyer’s 2009 order that stopped a round up of the West Douglas wild horses.
On top of that, this lawsuit was filed by the Coalition as well as Habitat For Horses, The Cloud Foundation, Front Range Equine Rescue, Toni Moore and Dr. Don Moore, claiming that BLM’s plan to round up all of the West Douglas wild horses is a direct violation of Judge Collyer’s 2009 order.
The plaintiffs also claim the BLM’s actions are in violation of the Wild Free Roaming Horses and Burros Act, 16 U.S.C. Sec. 1331, et seq. ("WFRHBA"), the Federal Land Policy Management Act, 43 U.S.C. Sec. 1701 et seq., Public Law 106-554 Sec. 515; Information Quality Act, and the National Environmental Policy Act, 42 U.S.C. Sec. 4321, et seq.
The plaintiffs point out the BLM is supposed to maintain a "thriving ecological natural balance" in herd areas and that "[z]ero wild horses cannot be in ‘balance’ with the remaining ecology of the herd area". Removal of all wild horses from the area violates, say the plaintiffs, the mandate to consider them as "an integral part of the natural system of the public lands" and as one of the multiple uses of the area. And, as Judge Collyer pointed out previously, removal of all of the wild horses from an area is hardly management at the "minimal feasible level" as required by the WFRHBA.
The plaintiffs point out any removal of "excess" wild horses must be because of degradation of the range associated with "overpopulation" of wild horses. They point out any degradation of the herd area is the result of "massive and intrusive human development", not overpopulation of wild horses.
The plaintiffs also object to BLM’s progressive removals, leaving fewer and fewer wild horses until there are too few for genetic viability. Then BLM removes the remaining wild horses, claiming they are not genetically viable!
Plaintiffs allege that under NEPA BLM has failed to take a "hard look" as required at alternatives such as introducing more horses to ensure genetic viability, reducing livestock grazing or limiting oil and gas operations. The plaintiffs say the BLM has failed to consider the cumulative impacts of its decisions and its current plan to zero out this herd area is part of an ongoing pattern and practice to remove wild horses in violation of these laws.
The plaintiffs say BLM has failed to address the environmental effects of corraling, processing, and holding wild horses, using a "categorical exclusion" to circumvent NEPA’s requirements.
The case has been assigned to Judge Collyer. A copy of the complaint is attached below for downloading.
For more on BLM’s efforts to zero out the West Douglas herd area, read Animal Law Coalition’s report below.
Original report July 26, 2010: BLM persists in trying to zero out the West Douglas wild horse herd despite a federal judge’s 2009 order that stopped an effort then to roundup and remove all of the wild horses in the herd.
The judge found then that BLM has no authority to remove wild horses and burros that are not determined to be "excess", or an overpopulation.
Since then, BLM has prepared another environmental assessment, this time finding all of the wild horses are "excess". BLM plans to round up the small herd of 100 or so wild horses beginning Oct. 4, 2010.
Ginger Kathrens, founder of The Cloud Foundation, points out that in the new environmental assessment BLM relied on the same information it had previously, that there has been no determination the wild horses are excess.
She continues, "The [federal judge] found [in her 2009 order] the BLM had not determined there was an overpopulation of wild horses in this herd, nor were the horses "excess" animals. The [judge] concluded that a ‘decision to remove an entire herd of concededly non-excess wild free-roaming horses and burros is … impermissible’. With that finding, Judge Rosemary Collyer put an end to the BLM’s overreaching claim that it can round up the entire West Douglas Herd whether or not they are deemed "excess". The judge put it bluntly, ‘Congress did not intend for BLM’s management authority to be so broad.’"
Kathrens then says, "Despite this decision, BLM is back with yet another EA designed to wipe out this small herd. By eliminating the wild horse herd, the BLM will be free" to implement its plan to increase livestock grazing.
Kathrens rejects that there is an overpopulation of wild horses. "[I]t is hard to imagine a scenario, in which 123,000 acres of the West Douglas Herd Area cannot easily accommodate a herd in excess of 200 mustangs since it currently accommodates over 1,200 head of cows and potentially 1,200 calves.
"As far as the difficulty of providing adequate horse habitat and suitable conditions for other competing uses, taking 1,000 AUMs from the cattle side and allocating them to the wild horses would solve this situation. BLM has the authority to reduce livestock grazing permits given them in CFR 4710.5 and 4710.6G.
"Regarding the ‘problem’ of keeping wild horses in the Herd Area, the BLM needs to reexamine the substantial lost acreage taken away from the wild horse herd area and reinstate the many thousands of acres taken away which would allow for buffer zones so that the horses might reoccupy their traditional lands."
Kathrens points out "let’s examine the science or lack thereof behind [BLM's] assertion that reducing cattle numbers would not improve range conditions. Most scientists and range managers agree that wild horses do no more damage than cattle to public lands and in fact, far less. In 1990 the Government Accountability Office Report underscored that wild horse removals did not significantly improve range conditions. The report pointed to cattle as the culprit as they vastly outnumber horses on BLM-managed public lands. They reported that wild horse removals are not linked to range conditions and mentioned the lack of data provided by BLM."
Kathrens also takes issue with BLM’s failure to appreciate the contributions of wild horses to the ecosystem, their migration patterns, the high cost of removals. She points out BLM all but admits the agency simply does not want to do its job of managing these iconic animals that are supposed to roam free on western public lands.