Judge Denies Motions to Hold BLM in Contempt of Court and Delay Roundup

Update July 28, 2010: Late yesterday, U.S. District Judge Larry Hicks denied a motion asking the court to hold Interior Secretary Ken Salazar, BLM Director Bob Abbey and Nevada BLM Director Ron Wenker in contempt of the court’s earlier order requiring BLM to allow Plaintiff Laura Leigh, a journalist, author and artist, access to the Tuscarora roundup.

Prior to the start of the roundup earlier in July, 2010, BLM had issued a notice closing 27,000 acres of public lands for the duration of the roundup.

On July 16 Judge Hicks ordered that the "blanket closure" of public lands was too broad, a violation of the First Amendment, and Leigh, in particular, should be able to be present to observe and report on the roundup. (For more on that order, read Animal Law Coalition’s report below.)

BLM, however, continued to deny Leigh access. Leigh detailed in a declaration for the judge her efforts at least to observe the roundup and instead found herself threatened with arrest.

Leigh’s attorney, Gordon Cowan, explained to the court, "The [BLM]… artificial barriers effectively precluded, and still preclude Ms. Leigh from visualizing, seeing, hearing or photographing any gather activity whatsoever. Instead, Ms. Leigh was the brunt of intimidation by law enforcement types apparently arranged to be present by BLM, to hold Ms. Leigh at bay."

BLM actually placed corrals and holding facilities on private land, meaning the public is not entitled to access without permission of the landowner. BLM claims the landowner does not want the public including Leigh on his land. Yet, a BLM manager, Ken Miller, admitted to Leigh at one point that the landowner had given permission for her to come onto his property. 

Photographs submitted by Leigh showed BLM kept public roads closed throughout the roundup.

In denying the motion to hold BLM in contempt of his order regarding access to the roundup, Judge Hicks explained, "The court’s previous order lifted the BLM’s blanket closure of public lands to allow the public and press the opportunity to observe any gather operations that take place on public land. The court’s previous concerns regarding Leigh’s First Amendment rights, namely, the right of the public and press to have reasonable access to a matter of public interest being conducted on public lands, is not present when gather operations are taking place on private land over which the BLM has no rights".

Also, on July 27, 2010, Judge Hicks denied Leigh’s motion for a temporary restraining order to delay use of helicopters until after foaling season in the Rock Creek and Little Humboldt Herd Management Areas of the Tuscarora roundup. The judge had previously denied a similar motion with respect to the Owyhee herd management area. The judge explained that Leigh "has not made a sufficient showing of the legal deficiencies in the BLM’s decision to conduct the gather at this time and its decision to effectuate the gather via helicopter.

"In support of her motion, Leigh argues that the use of a helicopter during the foaling period is a violation of the BLM’s own policies and procedures. However, the court finds that the BLM’s policies and procedures define the foaling period as "six weeks on either side of the peak of foaling" which is identified as the period generally from March 1 to June 30. Doc. #3, Exhibit B, §4.4.4, BLM’s June 2010 official management manual "The Wild Horses and Burros Management Handbook." Here, the gather is taking place in July 2010, outside of the defined foaling period.

"Accordingly, the court finds that Leigh is not likely to succeed on the merits of her complaint and, as such, a temporary restraining order is not warranted."

The Tuscarora roundup has continued despite hot summer temperatures, stopping only briefly for high winds. It is expected to be completed by this weekend. At least 25 horses have died, mostly from dehydration, and 3 from what BLM calls "congenital" abnormalities. It is not known how many have become ill from dehydration. All are terrified and their bands or families have been destroyed forever.   

The BLM claims that horses lack water and are suffering from dehydration on the range. BLM claims that lack of water on the range, not the roundup, caused the horses to die or become ill from dehydration even though they did not die or become ill until the roundup. Indeed, BLM convinced the judge the roundups must proceed on an emergency basis because of the lack of water on the range.

Leigh says she has investigated BLM’s claims and has found horses have been denied access to water on the range. As Cloud Foundation reports, "The issue is not one of lack of water but prevention of access to water as the Tuscarora mustangs must navigate a maze of livestock fences and closed gates. Miles of fencing prevent their free-roaming behavior and ability to access water sites they’ve used for decades if not centuries."

Indeed, BLM did not mention dehydration as a reason for the round up until after Leigh filed her lawsuit and the round up began. On the first day of the roundup, horses began dying and suffering from dehydration as they were forced to run for miles during extreme summer heat. Many of the mares were pregnant or had just given birth.  (For more on this, read Animal Law Coalition’s original reports below.)

Dr. Nena Winand, a respected equine veterinarian, told the court: "Pushing the animals, having been driven via helicopter over the distances they traveled, at a more rapid gait than they would otherwise travel in such environmental conditions, in environmental conditions which included elevated summer temperatures, and where the condition of many of the gathered horses improved rapidly following the gather, all lead me to compellingly conclude to a reasonable degree of medical certainty, that the deaths and injuries to these horses were substantially due to the gather itself, the manner in which the horses were driven during the gather and in their having to negotiate the environmental conditions existing there at the time.

"And it my further opinion to the same degree of reasonable medical certainty that the conditions existing on the range prior to the gather, were not causative in injuring and killing those horses who perished on the dates of the gather.  The uncontroverted fact remains that nearly all horses who reportedly perished, did so during the process of the gather itself or immediately thereafter while the horses were in the custody of the BLM, but not before."

For more on Laura Leigh’s lawsuit and the Tuscarora roundup, read Animal Law Coalition’s report below.       

Update July 16, 2010: Nevada U.S. District Judge Larry Hicks has lifted the injunction prohibiting BLM from proceeding with the Tuscarora roundup.

The judge has also denied plaintiff Laura Leigh’s motion to delay the use of helicopters to round up wild horses until August, after the foaling season, particularly as to the Owyhee Herd. The judge indicated she can seek "further relief" as to the planned round ups in the Rock Creek and Little Humboldt herd management areas.

But the judge also ruled, "As to Leigh’s First Amendment challenge to the closure of public lands during the gather, the court shall grant Leigh’s temporary restraining order. Leigh argues that a blanket closure of 27,000 acres of public land on which the Tuscarora Gather is going to take place is a prior restraint on her First Amendment rights because she will be unable to observe and report on the health of the horses and the BLM’s management of the gather. The court agrees [and]… finds that the blanket closure … is unconstitutional". The BLM can, however, draft a "more reasonable closure".

"The court’s order in no way [a]ffects the BLM’s closure of the airspace above the 27,000 acres of public land. The court finds the closure of airspace to be constitutional and necessary". (A copy of the Order is attached below for downloading.)

In deciding to allow the roundup to proceed now instead of later, Judge Hicks was persuaded by BLM’s last minute "review" filed yesterday by a BLM team that claims the horses dying or suffering from dehydration or water intoxication were in that condition prior to the roundup. The "review" states that a BLM contractor found Tuscarora wild horses without water and said "the next 24-78 hours is critical". BLM recommended rounding up as many horses as possible and warned of a "potentially high mortality" rate.  Horses showing signs of dehydration on the range would be left to die.

Leigh pointed out, however, that there was no mention by BLM of a drought or dehydrated horses in the Tuscarora HMAs until after her lawsuit was filed. She disputed the "hastily assembled" "review" by BLM:

The Defendants’ admit they do not grasp the issue causing the high mortality rate of the horses they run into catch pens. We discover they had not calculated a drought by mid-July or that horses would run out of available water by mid-July although they had studied the probable effects of their intended Gather the several months preceding the Gather, beginning in January 2010. No other BLM document discusses or addresses "drought" for range management in the year 2010 in the Owynee, Rock Creek or Little Humboldt areas. It was in fact, only after suit was filed did these emergency conditions become newly revealed.

Leigh offered to visit the herds and attempt to verify BLM’s claim a roundup must proceed immediately because of drought.

For more on this case and the Tuscarora roundup, read Animal Law Coalition’s report below. 

Update July 15, 2010:  Judge Larry Hicks has issued an injunction prohibiting BLM from proceeding with the Tuscarora roundup.  

The BLM had temporarily suspended its Tuscarora roundup of wild horses initiated in the intense summer heat just days ago on July 10, 2010.

BLM halted the roundup after public outcry over the deaths of horses now said to number 12 including 3 foals.

Based on BLM’s representation the roundup would not begin again until Sunday, July 19, 2010, the judge set a hearing on July 14 on a motion for restraining order filed by plaintiff Laura Leigh to delay the roundup until August and compel BLM to allow access to the roundup by the media and the public. 

The judge explained that he was then informed despite BLM’s representation to the court, BLM Director Bob Abbey had issued an order for an "emergency" roundup of the horses prior to the hearing.   

Judge Hicks ordered, "Based on this change in the BLM’s position, the court finds it necessary to grant an immediate injunction preventing the Tuscarora gathering of wild horses until further order by the court."

Go here for more on the planned Tuscarora roundup of 1,438 wild horses in the 482,191 acres of the Owyhee, Rock Creek, Little Humboldt Herd Management Areas. In proceeding with the roundup on July 10, BLM basically ignored thousands of citizens who submitted letters and emails in protest during a period of public comment on the planned roundup.

An appeal of BLM’s decision to round up wild horses in the Tuscarora HMAs has been filed with the Interior Board of Land Appeals by In Defense of Animals and Craig Downer, a wildlife ecologist. BLM, however, can resume the roundup while the appeal is pending.

The dehydration, the deaths, the cruelty

Once again, BLM hired Dave Cattoors to round up wild horses. Cattoors has a federal conviction for aiding and abetting the theft and sale of wild horses for slaughter and also for using the helicopter as part of this conspiracy. But he has made millions as a BLM contractor rounding up wild horses and burros – with a helicopter.

As summer temperatures soared on the first day of the roundup, Cattoors ran down approximately 228 horses in a matter of a few hours with a helicopter. Most of the horses were forced to run for miles. Many of the mares had just given birth or were about to do so. It was a tragedy in the making, and 7 horses died during the first day of the roundup while another was euthanized in the holding pen after breaking a leg.

Michael Lindinger, PhD, MSc, an animal and exercise physiologist at the University of Guelph, explains: "It only takes 17 minutes of moderate intensity exercise in hot, humid weather to raise a horse’s temperature to dangerous levels. That’s three to 10 times faster than in humans. Horses feel the heat much worse than we do."

If a horse’s body temperature shoots up from the normal 37 to 38°C to 41°C (98.6 – 105.8°F), temperatures within working muscles may be as high as 43°C (109.4°F), a temperature at which proteins in muscle begin to denature (cook). Horses suffering excessive heat stress may experience hypotension, colic, and renal failure.

BLM acknowledged the deaths were the result of dehydration or water intoxication, meaning horses were consuming large amounts of water because of dehydration. According to The Cloud Foundation, other horses were "exhibiting signs of colic and brain swelling" from dehydration or water intoxication.

Dehydration obviously results from forcing horses to run for miles in summer heat. Add to that extreme stress and fear. Common sense would tell anyone that this would be particularly dangerous for mares that have just given birth or are about to do so and also for foals. In fact, The Cloud Foundation reports, "[BLM] 2009 … Roundup planning documents stated: ‘…Not only are young foals in summer months more prone to dehydration and complications from heat stress, the handling, sorting and transport is a stress to the young animals and increases the chance for them to be rejected by their mothers.’"

BLM’s Rationale for the Roundup

The BLM continues to insist publicly there were too many horses in these herd areas and thus the roundup was "necessary". There were 464 acres per horse, however, and the animals were healthy, according to the agency’s own spokesperson, Heather Emmons. At least they were healthy until BLM began its brutal roundup. Go here for analysis of the BLM’s decision to round up these horses.

Recently, BLM has said the horses must be removed because of damage to livestock fences. Hardly a reason to remove animals protected by a law which tasks BLM with protecting them from "harassment", "capture" and "death" and which is supposed to manage them at the "minimal feasible level"as "free-roaming" "components" of the public lands and treat these animals humanely.  Wild Free Roaming Horses and Burros Act, 16 U.S.C. §1331 et seq.  

Buried in its Environmental Assessment, BLM says that to "leave …. wild horses on the range, could lead to negative impacts on livestock grazing management". Agri-business does not want wild horses and burros on public lands it uses for livestock grazing. And neither does BLM.

A BLM ecologist Cameron Bryce has said, "Wild horses do not belong in western ecosystems….the 1971 Horse and Burro Act was based on emotions, not science." 

Long time rancher, now Secretary of the Interior Ken Salazar has said wild horses do not belong on public lands. BLM is an agency within the DOI.

Follow the money: Fees charged for cattle or sheep grazing are $1.35 per animal under 18,000 grazing permits and leases on 258 million acres.  Grazing livestock on public lands is a "$132 million loss to the American taxpayer each year and independent economists have estimated the true cost at between $500 million and $1 billion dollars a year."  For more including a look at the astonishing cost to taxpayers to implement BLM’s policy of rounding up and removing wild horses and burros…..

Investigative reporter George Knapp has also revealed plans to build the Ruby oil and natural gas pipeline likely facilitated the mass removals of wild horses. The pipeline will extend across northern Nevada. It is no surprise to find BP involved. BP and another DOI agency, Minerals Management Service, have operated as one and the same under DOI Secretary Ken Salazar.  

Go here for a discussion about this with George Knapp on CNN Headline News, Issues with Jane Velez Mitchell.

Leigh Lawsuit

Laura Leigh, a journalist, author, publisher, artist and wild horse advocate, filed her lawsuit in Nevada federal District Court to delay the Tuscarora roundup until after foaling season and a period of rest for birthing mares. Leigh also seeks an order requiring BLM to allow public and particularly media access to the horses during the roundup and after they are placed in a holding facility.

         Leigh asks BLM to delay roundup until after foaling season

Leigh says BLM violated its own policy that prohibits helicopter roundups until at least six weeks after peak foaling season ends on or about June 30. According to her Complaint and affidavits she has submitted, observers confirm a number of mares have given birth in recent days or are about to do so.

Leigh says the roundup during the summer virtually during foaling season violates the Wild Free Roaming Horses and Burros Act’s requirements for humane treatment of the horses. 

        BLM’s illegal closure of public lands and access to the roundup 

Leigh’s other claims is that BLM’s closure of 27,000 acres of public lands in the area of the roundup constitutes a violation of the First Amendment rights to free speech and freedom of the press. Leigh says the BLM is effectively "censoring" information and denies the media the ability to observe and report on a government action. 

The BLM actuallly began the round up on private land, many say as the excuse to keep the public away. The agency gave no excuse, however, for closing access to public lands even temporarily during the roundup. 

R.T. Fitch, author, Straight from the Horse’s Heart, recalls, "Don Glenn [of the BLM] stood up in front of God and country (also a video camera) and promised that the BLM would be transparent and equine advocates (taxpayers, the one paying his cushy government salary) would be ‘allowed’ to witness all round ups and at the same time he was speaking an undercover round up that was never publicized was taking place.  I mean it was going on while the words were falling out of his mouth and splatting on the floor before him."

Also, following Glenn’s comments, BLM shut down public access to horses after a brutal, deadly helicopter round up by Cattoors in the Calico Mountain Complex during the bitter cold of winter over icy, treacherous terrain. 153 of those horses have died including 2 foals whose hooves were literally torn off as they were chased for miles by Cattoors’ helicopter. 

The closure of the Tuscarora roundup to the public comes on the heels of promises made at the June, 2010 meeting of the WH&B Advisory Board by BLM Director Bob Abbey of a "dialogue" to engage the public and that the agency would seek "in depth" public input in managing wild horses and burros.

Then there is the law.  Federal regulations strictly limit when public lands can be closed to the public even temporarily.

The refusal to allow even the media to watch a wild horse roundup is consistent, however, with BLM’s Bush era discussions during which the agency considered ways to keep the public away from round ups and  devised a plan to brand protests as "eco-terrorism".

BLM manager Gene Seidlitz recently cavalierly announced, "We are not the bureau of horses". 

Yes, there is no doubt about that.   

WHAT YOU CAN DO NOW

Join Equine Welfare Alliance, The Cloud Foundation, Animal Law Coalition and thousands of organizations and citizens and call on Pres. Obama to order a moratorium on wild horse roundups. Here’s his number:  

202.456.1111

 

©Photographs by Elyse Gardner