U.S. District Judge William H. Pauley, III, sitting in the Eastern District of New York, observed in his ruling on October 21, 2010 that "the Court is accustomed to dealing with bulls and bears on Wall Street, [but] this case turns its attention westward to wild horses in Colorado".
Judge Pauley then proceeded to deny a motion by plaintiffs Habitat for Horses, American Society for the Prevention of Cruelty to Animals (ASPCA), The Cloud Foundation, Toni Moore and Dr. Don Moore, for an injunction to stop the Bureau of Land Management’s roundup of wild horses in the North Piceance Herd Area in Colorado.
The BLM is right now rounding up and plans to remove all wild horses from the North Piceance Herd Area; the Area is part of the White River Resource Area and that includes the Piceance-East Douglas Herd Area and West Douglas Herd Area which was the subject of an order by U.S. District Court Judge Rosemary Collyer last year.
Irreparable harm
The judge did note, "BLM seeks to remove all horses from a specific tract of land. The BLM cannot gloss over this…by arguing the plaintiffs can still view horses on neighboring lands". The judge found the BLM’s plan to "extinguish" the wild horse population in the North Piceance Herd Area was sufficient to establish a likelihood of irreparable harm necessary to warrant an injunction until the case is resolved.
Likelihood of success on the merits
But, said the court, there was not sufficient evidence of another factor necessary for an injunction – likelihood of success on the merits.
The standard for analysis requires the court to show deference to an agency, and this judge did not question anything presented by BLM. BLM relied on a 1997 land use plan based on a 1980 management, the objective of which was to remove all horses from North Piceance after 2007.
BLM said an aerial census in 2010 showed 49 horses in North Piceance and also 30-130 horses in excess of AML in Piceance East. In a July, 2010 Environmental Assessment BLM preferred the alternative of rounding up all wild horses in and outside of Piceance East and returning about 130 of them to Piceance East. Older mares would be sterilized.
Basically, this would leave no horses in North Piceance and 130 horses in Piceance East with all mares BLM decides are "older" sterilized.
Wild Free Roaming Horses and Burros Act
The plaintiffs argued that the BLM’s actions would violate the requirement under the Wild Free Roaming Horses and Burros Act, 16 U.S.C. Sec. 1331 et seq. (WFRHBA)that the wild horses "are to be considered in the area where …found" as of 1971. The Court, however, said nothing in this statute requires BLM to "maintain" wild horses throughout the area where they roamed as of 1971. The Court endorsed the BLM’s practice of forming herd management areas, pointing to the provision under WFRHBA that allows the BLM to designate ranges. The Court said a "herd management area" which is not mentioned in WFRHBA and is a BLM invention, is actually authorized by the WFRHBA provision allowing BLM to designate ranges. A herd management area is now a "range".
Except that "ranges" are supposed to be "devoted principally" to wild horses and burros, something not mentioned by the Court.
BLM created herd management areas within herd areas with the effect of reducing land available to wild horses and burros. 43 CFR 4710.3-1. In this way, with no statutory authority at all, BLM has limited wild horses and burros’ access to thousands of acres that were historically their herd areas. This is done without thought about the horses’ seasonal migration patterns or available resources. The BLM then removes wild horses and burros from the artificially created "herd management areas" on the basis there is insufficient forage, water or habitat! BLM also targets them for removal if they cross the artificial boundaries into their original herd areas.
The Court also found BLM demonstrated a sufficient basis for the finding the wild horses to be removed are "excess" within the meaning of the WFRHBA. "Excess" horses are defined to mean wild horses and burros to be removed from an area "to preserve and maintain a thriving natural ecological balance and multiple-use relationship in that area" or for some other legal reason. See 16 USC §1332(f). The WFRHBA states that before removing wild horses and burros, a determination must be made that there is an overpopulation and removal is indicated "so as to restore a thriving natural ecological balance to the range, and protect the range from the deterioration associated with overpopulation". 16 U.S.C. §1333(b)(2)
In finding the wild horses are "excess", BLM relied on a 1997 land use plan which was based on a 1980 management plan. Not exactly current information. There is no real basis offered for the removal except that the land was not "suitable" and it was decided in 1980 and the decision repeated in 1997 that the wild horses should be removed from North Piceance after 2007.
In the end, Judge Pauley said he was following other courts and deferring to the BLM. The judge did not mention the laws requiring that "[m]anagement activities affecting wild horses and burros shall be undertaken with the goal of maintaining free-roaming behavior." 16 U.S.C. §1333, 43 CFR 4700.0-6 "All management activities shall be at the minimal feasible level". 16 U.S.C. §1333(a)
Indeed, in Colorado Wild Horse and Burro Coalition, Inc. v. Salazar, No. 06-1609 (D.D.C 2009), Judge Collyer wrote:
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.
…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.
Judge Pauley apparently declined to follow Judge Collyer’s decision which concerned the West Douglas Herd Area.
NEPA
Judge Pauley also found the plaintiffs did not establish a likelihood of success on the merits of their claims under the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321, et seq. Under NEPA, BLM is required to prepare Environmental Assessments or EAs or, if indicated, Environmental Impact Statements (EIS) or Finding of No Significant Impact (FONSI), for any proposed changes to public lands that may have a significant environmental impact. The law directs the agency to identify environmental concerns, consider alternatives including no action at all and take a "hard look" at the problem and minimize significant environmental impact. A significant environmental impact includes actions that are likely to be highly controversial or have uncertain effects on the quality of our lives and that affect cultural and historical resources. 40 C.F.R. §1508.27(b).
The court in this case rejected that the BLM failed to evalute the impact of removing all of the wild horses from the North Piceance Area on humans or the cumulative impact of complete removals from the herd area. The court found the summary analysis in the 1997 EIS as well as the 2010 EA were sufficient. The judge pointed out how many pages in the EIS and EA and said BLM does not need to detail how the agency reaches its decisions.
The court also found the effect of removals on people who care about the horses and like to watch them is not significant to warrant further study. The judge agreed with BLM that people could go to a neighboring herd area if they want to watch wild horses. The judge also rejected that NEPA should apply to BLM’s practice of holding wild horses and burros in short term holding facilities.
Harm to BLM
Judge Pauley decided there would actually be more harm to BLM if and injunction is granted and the round up is delayed. He said it would cost more to wait and when the round up did occur next year, there will be more horses, 20% more, according to BLM. The judge noted the "ecosystem on the range can deteriorate quickly if there are too many animals." He also said the BLM was obligated to manage the public lands for multiple uses, "not solely to maintain the vitality of wild horse populations".
Actually, I thought the judge wrote this decision quite cleverly, leaving a trail of breadcrumbs on what needed to be done to win this type of suit in court. I think the ASPCA and advocates lost a lot of ground when they didn’t comment in the original period when the BLM had this out for public comment. If, at that time, there had been credible objection to the environmental determinations by the BLM, then I think the case would have a different outcome. I believe he did the best he could under the law.
Good Lord…what a highly educated idiot that apparently can contradict himself numerous tmes in his own written decision.
To put it politely Judge Pauley, you don’t know squat about wild equines OR the BLM.
10-22-2010 Where the heck is President Obama!!!!!! Have you seen him posed in the oval office by a stature of a cowboy bucking a horse with spurs and a whip! Likely a gift from Salazar or one of his other cowboy buddies. That’s what our President thinks about this critical situation. He has no heart or compassion. God bless Bow, the family’s long over due dog previously denied under the aupices of his oldest daughter, exposed to secondary cigarette smoke for years, allergy to dogs when in fact, a situation caused by the President. I remember in a People Magazine article when he was a presidential candidate, his daughters call him “stinky”.
Betty Kelly
Carson City NV 89704
Well, it looks like someone got “bought” again with monies. This whole procedure and the dialog sounds fishy as “h__” to me. Money buys decisions, and this smells again of cash under the table. I hope, the judge Pauley, that made this ruling finds out he made the wrong decision, and he, as well as the BLM employees, the helicopter employees, and all associated with the “murderous” acts of rounding up foals, mares, stallions, and burrows get what is coming to them in the end. This is agregious. It stinks. We will not go away. We will prevail in the end.
What is it going to take for a judge to understand what the blm is doing to our wild horses and burros? Our wild horses and burros are not being protected by blm there are destroying our national treasures like they are worthless. Our wild horses are a native species and have been here in North America since the last ice age. They are called feral, they are not feral, they were reintroduced by the Spainards in the 1600’s. They qualify for the endangered species act. Cattle are the animals that are destroying the lands. When a horse eats wild plants and grasses and it goes thru their digestive track any seeds they have eaten are expelled in their feces. When this happens the seeds are fertilized and grow replenishing the plants and grasses that had been eaten. This isn’t the case when cattle eat grasses and plants, the seeds are not expeled therefore,nothing grows back. The guidelines the blm is following are outdated and does not apply to todays wild horses and burros. Our wild horses and burros should not be managed by a government agency that are cattlemen they should be managed by a board of experts of equines and environmentalists, ecoloist and veterinarians. Our wild horses and burros need Justice when will we find justice that will protect our wild horses and burros not kill, mame and torture them. We demand Justice for Our Wild Horses they belong to the American people not the government!!!
This ruling is even more ridiculous than I thought at first. What are Judges using for brains these days?
Terrific job explaining the ruling. Nice to hear it from a legally savvy person. It sounds to me like he thinks there is merit for a case against BLM, but that it wasn’t presented to him in a way the could withstand scruteny by an appeals court, which is where BLM would’ve headed.
Do you think there’s enough to refile on different merits? Why can’t this thing be dealth with by filing charges against the same parties as this last one, but add the wranglers, and go after them for plain ole animal abuse?
Your work is appreciated! Thanks.
This Judge needs to be educated to allow this to continue is mind numbing. The BLM clearly is a cruel organization and is attempting to extinct are mustangs. There round ups are inhumane and THEY should be held accountable for there actions . This Judge should be held accountable for signing the Mustangs death warrants by the BLM. BLM Burea OF LIES AND MISMANAGMENT.
THIS IS ALL SO SICK. I AM SO UNHAPPY WITH THIS COUNTRIES GOVERNMENT AND GREED. THE BIG MONEY POLITICS AND INTEREST GROUPS ARE KILLING THIS U.S.A.
WHERE IS A STRONG LEADER OF THIS COUNTRY. WE WOULD NEVER HAVE GOTTEN OUR HATIONAL PARKS WITH THE LEADERSHIP WE HAVE IN OFFICE THESE DAYS.
WHY ARE THE PEOPLE NOT ABLE TO HAVE A SAY IN THIS CRUEL ACT OF MURDER. I HAVE NO RESPECT FOR THAT JUDGE AND HE HAS NO HEART. HE MUST HAVE BEEN PAID OFF TOO. THAT IS WHAT D.C. IS ALL ABOUT. I THINK THERE IS TOO MUCH LIES AND MURDER AT THE PRICE OF MORALS LOST. IT GETS ME SO SICK!!!!! WHY IS THIS HAPPENING IN TIMES THAT SOULD BE HUMANE WITH ALL ANIMALS. I HATE THESE HEARTLESS PEOPLE. IT IS NOT RIGHT FOR THIS TO HAPPEN. IT IS JUST WRONG AND THIS SI WHY SO MANY PEOPLE FIGHT IN DIFFERENT METHODS TO BE HEARD. BIS MONEY MAKER LIKE THOSE IN HOLLYWOOD OR DONALD TRUMP, TED TURNER OR THE ESTATE OF THE LATE MICHALE JACKSON…………..WHO LOVED ANIMALS……………..WHY CAN’T THEY HIT THE NEWS MEDIA AND PAPERS AND HELP THESE POOR HORSES. WHY ARE THEY MADE TO SUFFER. WHY IS IT THESE SLAUGHTER CORPS ABLE TO GET AWAYS WILL MURDER AND IT’S ALL TOO EVIL…EVIL… AND THEN WE TALK ABOUT OTHER COUNTRIES. WE ALLOW THIS EVIL TO HAPPEN IN OUR OWN US OF A. …………………..WHERE IS STONG LEADERSHIP AND COMPASSION FOR LIFE. I HAVE NO RESPECT FOR CONGRESS AND IT’S TIME TO NO LONGER VOTE. POLITICALS HAVE THIER OWN AGENDA AND NO GREATNESS. SAVING LIFES FROM MURDER SHOULD BE ON THE TOP OF EVERY HOUSE MEMBER AND OUR SO CALLED PRESIDENT. SAD SAD SAD DAYS FOR THE PLANET AND ALL LIVING CREATURES. CRY CRY CRY AND I SIGN PETITIONS AND VOLENTER FOR ANIMAL RIGHTS AND YET ………………………………..DEATH STILL AT THE WHITE HOUSE HANDS. WATCHING POOR HORSES DIE A SUFFERING SLOW DEATH. I KNOW WHAT I FEEL LIKE DOING AND TALK IS JUST NOT GETTING THE JOB DONE. SAVE THE HORSES NOW. THEN THEM APPEAL……….IT SHOULD NOT BE ABOUT MONEY. THE TRUTH IS GOD’S THRUTH OR MAN’S TRUTH. THIS IS NOT THE RIGHT FUTURE FOR THESE BEAUTIFUL ANIMALS. WHY CAN’T THAT BE UNDERSTOOD?
This is why is can not sleep at night. there is too much wrong in this counrty. I feel sick and sad. I have no respect in our politicans at all.
Our laws are for the rich and greedy. Interest groups have their dirty hands all in blood and in bed together with capital hill. I am very depressed and sad beyond description. I wish CHRIST would come and save our souls NOW, because the EVIL IS GROWING out of control. I HATE THESE KILLERS. I PRAY THEY DIE THE SAME DEATH. I AM NUMB TO MONSTERS THAT ALLOW SENSLESS DEATHS THAT ARE CRUEL AND OF SUFFERING. I AM SAD AND YET I WILL FIGHT TO CHANGE THIS HEARTLESS ACT…………………EVIL………………AND WHY CAN’T THEY SEE/FEEL THAT. THIS IS WRONG!!!!!!!!!
This whole process is WRONG on so many levels. These horses were to live free on designated lands. BLM does not own the land–you–the taxpayer–own the land and the horses on it. So you are now paying BLM to take away your horses and hide them in long term holding zoos. BLM does not allow the public to view these incarcerated animals– and has free hand with castration/spaying of YOUR MUSTANGS! BLM is mismanaging them to extinction. Prs. Obama by his very silence on this issue is in league with BLM. SHAME on the govt. of the USA to injure/kill/ship to slaughter these icons of America. MORATORIUM NOW !