Judge Dismisses Suit Challenging Calico Roundup

Update May 24, 2010: U.S. District Court Judge Paul L. Friedman has dismissed this case, entering summary judgment in favor of the BLM. A copy of the opinion is attached below.

The judge found the issues related to the legality of the round up of the Calico Mt. Complex wild horses are moot because the roundup has already occurred.

The judge explained that while he denied plaintiffs In Defense of Animals, Craig Downer and Terri Farley, a preliminary injunction that would have stopped the roundup before it occurred, they should have appealed that denial. Because they failed to appeal the denial of the motion for preliminary injunction at the time, Judge Friedman said he could not now hear their claims.

(There is an exception to the mootness doctrine for claims that are capable of repetition but evading review, meaning acts or omissions which could never be challenged in court because it would be moot by the time the court could reach a decision. That exception would have applied in this case. But, said the judge, for that exception to apply and for the court to be able to review the plaintiffs’ claims, they would have had to appeal the denial of the motion for preliminary injunction.) 

The judge also dismissed their remaining claims for lack of standing. The judge explained that plaintiffs were challenging the legality of keeping wild horses in long term holding facilities including as Interior Secy. Ken Salazar has proposed, on "preserves" in the midwest or East. The judge acknowledged that when he denied the motion for preliminary injunction, he did state there was a likelihood of success on that claim. Wild horse enthusiasts, wildlife ecologists, advocates and many other citizens as well as the plaintiffs in the case, hoped the judge’s words meant he intended to end the warehousing of wild horses in long term facilities and pave the way for them to remain free roaming on the range.   

But Judge Friedman said in his opinion that he now does not believe the plaintiffs have standing to pursue that claim. (Anyone who brings a lawsuit must show "standing", which in a case like this means, an "injury in fact," that is "concrete and particularized" and "actual or imminent." There must be a causal connection between the injury and the conduct complained of. The injury must be likely, not speculative, and the injury must be redressable by the trial court’s favorable decision. For these kinds of cases a plaintiff must also meet the statutory standing requirements of the APA: Plaintiffs must show there has been some final agency action and must demonstrate that their claims fall within the zone of interests protected by the statute forming the basis of their claims.)

The judge explained that plaintiffs did not show the injury they would suffer from the roundup of the wild horses was related to their placement in long term holding facilities. He said the plaintiffs only established a causal connection between their suffering and the round up and removal of wild horses from the Calico Mt. Complex.  

Judge Friedman said, "The closest the plaintiffs come to [establishing an injury from placement of the wild horses in long term holding facilities] is their assertion that transfer to the long-term holding facilities in the Midwest would permanently remove the gathered Calico wild horses from their home on the range".

A narrow reading of plaintiffs’ claims to be sure. Surely the whole point of the lawsuit as described in declarations submitted by the plaintiffs was to show injury and devastating loss from the roundup, removal and forced captivity of these wild animals in long term holding facilities.    

The judge then said the plaintiffs also lacked standing to pursue the claim they added after denial of the motion for preliminary injunction under the National Environmental Policy Act, ("NEPA"), 42 U.S.C. §§ 4321, et seq. They alleged the BLM failed to consider the significant environmental impact of holding wild horses in long term holding facilities.

A "procedural injury" such as a NEPA claim is not sufficient to establish standing, said the judge, unless the plaintiffs show a causal connection between the NEPA violation and their injury. The judge found the plaintiffs had not established such a connection.       

For more on this case, read Animal Law Coalition’s report and update below and for more on the brutal roundup and removal of the Calico wild horses….    

Update Dec. 23, 2009: Judge Paul L. Friedman has denied the motion by plaintiffs In Defense of Animals, Craig Downer and Terri Farley, for a preliminary injunction to stop the roundup of up to 2,736 wild horses from the Calico Mountain Complex herd management areas in Nevada.

But the judge has also rejected that BLM can continue to keep unadopted wild horses and burros in long term facilities. The judge agreed with the plaintiff that BLM has no authority to transport healthy unadoptable horses and hold them in long term holding facilities especially in places where they were not located previously, Oklahoma, Kansas or South Dakota.  

The judge, however, found the plaintiffs did not raise this argument until their reply brief and it could not be the basis for a preliminary injunction. The judge said the defendants had not had time to brief the issue fully. The judge did reject the BLM’s contention that Congress had ratified its policies of putting unadopted wild horses and burros into long term holding facilities by approving appropriations bills.

The judge suggested the agency postpone the roundup scheduled for December 28 but declined to issue an injunction at this time. The judge reasoned that if the BLM proceeds with the gather, knowing that long term holding may not be an option and with no funds under the Appropriations Act, FY 2010, for euthanization or sale for slaughter, the agency must come up with another solution for the horses it will have removed from the wild. The judge said that once removed as excess, the horses could not at that point simply be returned to the herd areas.

The judge found "untenable" the plaintiffs’ other contention that BLM cannot round up and remove horses en masse. The court rejected the plaintiffs’ interpretation of the Wild Free Roaming Horses and Burros Act, 16 U.S.C. Sec. 1331 et seq, (WFRHBA) that BLM must determine on a case by case basis those horses deemed "excess" or causing an overpopulation, and then remove them under a tiered approach with the old, sick and lame taken first and then the healthy adoptable horses. The judge said such a process would put the BLM in "an impossible Catch-22"  because the agency could not really evaluate the health or age of horses without capturing them first. The judge found the WFRHBA did not prohibit the BLM’s current method of rounding up horses, separating them, sterlizing and returning some and placing others in short term holding facilities for adoption or sale.

Judge Friedman did also say the public and BLM’s interest in controlling the overpopulation of wild horses could be negatively impacted by a delay. He said "issuance of an injunction at this stage might lead to substantial growth in already overpopulated herds" in the Calico Complex.  The judge said that, according to BLM, a spring roundup could result in more injuries for the wild horses. 

This ruling does not end the case. With this ruling, judge rejected the motion for a preliminary injunction to keep the status quo pending a final decision. It is a serious warning to BLM that the judge does not think its policy of keeping wild horses in long term holding facilities, is legal. But, unfortunately, unless BLM takes the judge’s advice, the Calico roundup will proceed on Dec. 28.  

For more on the plaintiffs’ allegations, read Animal Law Coalition’s  original report below.  

Original report: The plaintiffs, In Defense of Animals, wildlife ecologist Craig Downer and journalist and author, Terri Farley, are optimistic U.S. District Court Judge Paul L. Friedman, will grant their request for a preliminary injunction to stop the Bureau of Land Management (BLM)’s plan to round up wild horses from the Calico Mountain Complex in Nevada.

Plaintiffs say BLM’s proposed round up set to begin December 28 violates the Wild Free Roaming Horses and Burros Act of 1971, 16 U.S.C. §1331 et seq., and is arbitrary and capricious, an abuse of discretion, and in excess of and without legal authority, in violation of the Administrative Procedures Act, 5 U.S.C. §701 et seq.

The judge has promised to rule before Christmas.

In their First Amended Complaint the plaintiffs point out BLM has no authority under the Wild Free Roaming Horses and Burros Act of 1971, 16 U.S.C. §1331 et seq., to use helicopters to round up wild horses en masse and hold them in short or long term holding facilities. BLM is required to manage the wild horses and burros as "components" of the public lands on which they were living as of 1971 or on designated ranges. 16 U.S.C. §1333 BLM must manage them at "the minimal feasible level". 16 U.S.C. §1333 WFRHBA forbids the capture, harassment, death and inhumane treatment of these animals. 16 U.S.C. §1331, 43 CFR 4700.0-2, -5

U.S. District Court Judge Rosemary Collyer ruled recently 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."

The BLM is directed to protect the wild horses and burros "in a manner that is designed to achieve and maintain a thriving natural ecological balance on the public lands" and "protect the natural ecological balance of all wildlife species which inhabit such lands, particularly endangered wildlife species. Any adjustments in forage allocations on any such lands shall take into consideration the needs of other wildlife species which inhabit such lands." 16 U.S.C. §1333(a). The Public Rangelands Improvement Act of 1978 amended the WFRHBA to require BLM to determine appropriate management levels (AML) and maintain an inventory of wild horses and burros to help achieve these goals.

BLM is only authorized to remove "excess" wild horses or burros.  Under WFRHBA, "excess animals" means wild free-roaming horses or burros (1) which have been removed from an area by the Secretary [of the Interior] pursuant to applicable law or, (2) which must be removed from an area in order to preserve and maintain a thriving natural ecological balance and multiple-use relationship in that area. 16 U.S.C. §1332.

Basically the BLM is only authorized to cull wild horses and burros from their historic herd areas where they were living in 1971 to control overpopulation or "maintain a thriving natural ecological balance".  In designated ranges, there may be consideration given to "multiple uses" but even these are to be "devoted principally" to the wild horses and burros. 16 U.S.C. §§1332, 1333

Plaintiffs’ Allegations 

The plaintiffs say that even if there are "excess" wild horses in the Calico Mountain Complex herd management areas, the BLM cannot simply use helicopters to drive them all into holding pens or corrals and then return the few that the agency decides are not "excess". The WFHRBA is clear that BLM must first cull any wild horses that are old, sick or lame. 16 U.S.C. §1333 Plaintiffs say this most likely means these animals would be humanely euthanized in the field.

According to the plaintiffs, the BLM must then determine on a horse by horse basis which are adoptable and remove only those excess adoptable horses.  16  U.SC. §1333 The plaintiffs say BLM has no authority to round up healthy, unadoptable wild horses and transport them to holding facilities where they were not living in 1971.  Though WFRHBA states BLM shall euthanize remaining unadoptable healthy excess wild horses and burros, the Appropriations Act, FY 2010, de-funds or bars BLM from using any of its budget to euthanize healthy wild horses or sell them for "processing into commercial products". 

But because BLM cannot or does not euthanize healthy, unadoptable horses deemed "excess," does not mean the agency can put them into short or long term holding facilities. Nothing in WFRHBA authorizes excess wild horses to be maintained in this way.  

During oral argument on Dec. 16, Judge Friedman asked about the fate of the "excess" healthy, unadoptable horses.  Clearly the plaintiffs believe they should simply be left to roam freely in the herd management areas, that at this point, the law provides no basis for their removal.

The BLM also has no authority, say the plaintiffs, to round up non-excess wild horses even if the agency then returns them to the wild.

BLM Says Congress has Ratified its Plans for the Calico Wild Horses

In this case BLM plans to use a helicopter to round up 2,432-2,736 wild horses or  nearly 90% of the population of the Calico Mountain Complex herd management areas and then return 268 to the wild. The herds and families will be destroyed forever.

BLM says it is too expensive, too difficult, to assess and cull wild horses on a case by case basis. BLM also says that, regardless, Congress has ratified or approved the agency’s helicopter roundups and management of wild horses and burros in short and long term holding facilities. BLM contends that in appropriating funds for roundups and holding facilities, Congress has ratified the agency’s policies and effectively amended the WFRHBA to allow this.

Plaintiffs countered that while Congress can amend laws in appropriations legislation, there is a presumption against it and any such amendment must be stated clearly. Congress has never stated clearly that it approves of BLM’s management of wild horses and burros in this way.     

The Cruelty of BLM’s Handling of Wild Horses 

The plaintiffs note that according to the 2008 Government Accountability Office (GAO) report, 1.2% or horses died during BLM roundups also called "gathers" in 2005-2007. This means during the Calico gather, 30-34 wild horses are likely to die.  According to the GAO report, up to 5% of the wild horses died while they were held in short term holding facilities from 2003-2007 and  8% died during that period in long term holding facilities.

These animals also suffer destruction of their herds, separation of families, even foals from their mares. Wild horses and burros have suffered terrible injuries during these round ups and while kept in holding facilities.  Some will try to jump even 6′ fences or throw themselves at corral panels in an effort to escape, breaking their necks or legs. They suffer as any wild animal would when kept in captivity, a condition known as capture myopathy.  They can die from this and at best, live with their spirits broken, forever denied the free-roaming herd behavior promised by WFRHBA.

The Calico helicopter round up scheduled to begin December 28 presents a particular danger to mares likely to be pregnant with foals. Old, sick and disabled wild horses are likely to suffer injuries and even death as they are run down by helicopters.

BLM’s "Excess" Wild Horses 

As of May 31, 2009 there were 8,532 horses and 57 burros in short-term holding facilities that have a total capacity of 15,645 animals. As of that date there were 22,126 horses in long-term holding facilities that have a total capacity of 22,100. The long-term holding facilities are full. BLM claims there are 10,350 excess wild horses and burros that must be removed from herd areas and ranges. Since 2000, BLM has removed more than 74,000 wild horses and burros from the wild, 40% of the population.

It is far from clear that these wild horses and burros are actually "excess". In the Calico Mountain Complex environmental assessment, for example, BLM relied on old, outdated data to determine appropriate management levels of wild horses. Just last year, BLM permitted a 300% increase in cattle grazing in the area. The same area said to be too degraded and dry for the few remaining wild horses.

Also, despite the WFRHBA mandate to maintain a current inventory of wild horses, BLM’s census fluctuate wildly. Plaintiff Craig Downer has questioned whether BLM is now exaggerating the census to justify removal of even more wild horses.   

The Safari Club International and Safari Club International Foundation and Coalition for Nevada’s Wildlife have filed amici briefs in support of BLM’s assessments and decision to remove these wild horses.