U.S. Forest Service Added as Defendant in Case Challenging Fence for Cloud’s Herd
|August 27, 2010||Posted by russmead under Wild horses and burros|
Washington D.C. (August 27, 2010)- United States District Judge, James S. Gwin, has granted The Cloud Foundation, Front Range Equine Rescue and photographer/author Carol Walker, leave to file a Second Amended Complaint against the Bureau of Land Management’s (BLM) actions in the mismanagement of the Pryor Mountain Wild Horses.
The Custer National Forest is presently moving forward with building a restrictive boundary fence to prevent the wild horses from accessing crucial current and historical summer grazing lands. Judge Gwin ordered the BLM and USFS to answer the Second Amended Complaint within 30 days.
The amended complaint "abandons the NEPA claim that the Bureau’s Environmental Assessment for the September 2009 gather was deficient." Plaintiffs also add three violations of the Wild Free-Roaming Horses and Burros Act: (1) the Bureau’s May 2009 Herd Management Area Plan violated the Act; (2) the Bureau’s construction of a fence at the Range’s northern boundary violated the Act; and (3) the June 1987 Custer National Forest Plan and the May 2009 Herd Management Area Plan violated the Act by excluding areas historically used by the herd.
Judge Gwin said, "If the Plaintiffs ultimately prevail on the merits of those claims, the Court can grant effective relief, either by requiring the Bureau to remove existing fences or by enjoining the Bureau from constructing new fences."
In his decision, Judge Gwin wrote that "[the] government is … incorrect that the Plaintiffs’ claim challenging the 1987 Custer National Forest Plan is time-barred".
The judge also found the court could review the challenge to BLM’s use of a Categorical Exclusion to avoid analyzing the environmental impacts of the processing of wild horses and burros removed from the range. The issue was deemed not moot because plaintiffs seek "declaratory relief as to an ongoing policy."
Attorneys Valerie J. Stanley and Bruce A. Wagman represent the Plaintiffs in this action.
The suit challenges both agencies’ rejection of a Natural Management Approach for the herd and the planned construction of a two-mile long fence which would cut off the Pryor Mountain Wild Horse Herd from crucial summer and fall grazing lands they’ve used for centuries.
This small herd is the world’s most famous and the last remaining in Montana, sometimes called "Cloud’s herd" for the now-15-year old band stallion who TCF Director and plaintiff Ginger Kathrens has documented for the popular PBS Nature series. The herd traces its history back to the horses of the Spanish Conquistadors, the Lewis and Clark expedition horses, and Crow Indian War ponies.
Plaintiffs contend that the USFS and BLM are engaging in illegal treatment of these federally-protected mustangs and that the Pryor Wild Horses are entitled to use lands in the Custer National Forest, currently not included in the designated range.
Plaintiffs in the litigation include Front Range Equine Rescue based in Larkspur, CO; Carol Walker, equine photographer and author of "Wild Hoofbeats: America’s Vanishing Wild Horses"; and Ginger Kathrens, Director of the Cloud Foundation and Emmy-Award winning producer with 16 years experience documenting and observing the Pryor Mountain herd.
Kathrens explains, "The Forest Service should be working to set this area aside as a designated wilderness rather than working on how to build a bigger, stronger barrier to keep the Pryor horses from their rightful and essential high mountain meadows.
"Building the fence, cattle guard and gates would illegally confine horses to jurisdictional boundaries, restricting their natural and long-held seasonal pattern of use on East Pryor Mountain. Centuries old horse trails go straight through the line now flagged for construction of the fence, estimated to cost taxpayers between $25,000 and $100,000, not including USFS planning costs which, according to USFS, greatly exceed the cost of building the fence."
"The Forest Service has fought efforts to expand the Pryor Mountain Wild Horse Range to allow the herd to engage in their historical and seasonal migrations. Confining wild horse herds to smaller and smaller areas of the public lands lays the groundwork for more intrusive management and manipulation as the Forest Service and BLM contend that these animals will need to be removed from the wild for their own good," states lead attorney, Valerie Stanley.
For a four-year period in the early 2000s the Pryor Herd was at zero population growth due to mountain lion predation on the foals, as well as the ever-present harsh winter weather and deadly lightning storms. The population of the herd increased only after BLM encouraged the killing of mountain lions.
"The public has overwhelmingly supported allowing the herd the opportunity to manage itself. Apparently, BLM and the Forest Service think Mother Nature can’t get along without them," Stanley concludes.
Over 100 wild horses have been using the Custer National Forest this month, which constitutes the majority of the Pryor Mountain wild horses, of which less than 150 adults remain in the wild following a massive roundup in September 2009.
The Custer National Forest has not explained how the wild horses would be driven them back into the designated horse range. At least two new foals were born last week on the mountaintop and more births are anticipated. Running these young mustangs is dangerous and inhumane and can be fatal as has been proven during recent BLM roundups in Nevada and Oregon.
The area immediately adjacent to the designated range is not currently allocated for livestock grazing, but the Cloud Foundation questions USFS motives in blocking horses from this public land. Actions by the USFS are based, not on damage by the horses to the ecosystem, but seemingly on complaints from livestock permittees. Plaintiffs wonder if USFS is arranging for the building of this fence to facilitate cattle grazing on what would be a new livestock allotment on scenic subalpine meadows used annually by wild horses, mule deer, black bears and an array of small animals in the summer and fall.
"Wild horses have used these Forest Service lands for centuries. BLM and Forest Service have so far failed to work together to expand the range, using natural boundaries which encompass the mustangs’ use area, for the good of the herd and the public that loves them," explains Front Range Equine Rescue President/Founder, Hilary Wood.
Historically, BLM directed livestock permittees on public grazing land to round up wild horses by aircraft. Once captured, the wild horses were either killed and butchered on the range or were shipped live to meat packing plants. In 1968, a public outcry was launched, spurred by local residents and ABC reporter, author and TCF Honorary Board Member, Hope Ryden. Ryden’s discovery of plans to trap and remove the Pryor Horses despite BLM assertions to the contrary caused a national outcry.
In response, then Secretary of the Interior Stuart Udall issued an Executive Order creating the first public range ever dedicated in the United States for the protection of wild horses. The 39,000-acre range was intended to protect the horses, other wildlife, and the natural state of the area. At the time, none of the Custer National Forest Service lands were included, as that was outside of Interior Secretary Udall’s jurisdiction.
"Treating the wild horses as if they are livestock by fencing them into one small section of their traditional use area will not just harm the mustangs, but also the public who can more easily access the Forest Service lands to experience a wildlife display unlike any in North America," states plaintiff Carol Walker. "I don’t understand why the Forest Service would want to deprive the public from experiencing this kind of natural wild horse wilderness."
"Wild horses need to be treated like wild horses-not livestock. Right now the public can easily access the Forest Service lands and experience a wildlife display unlike any other," states plaintiff Carol Walker. "We want the Forest Service to immediately abandon plans to build the fence."
The plaintiffs also continue to challenge BLM’s conduct related to the 2009 roundup that decimated Cloud’s Herd.
Plaintiffs allege, "In the 2009 roundup, BLM ignored the safety of newly born foals by refusing to wait until the foals were older and might better stand the rigors of being chased for miles by a helicopter.
"BLM also engaged in the cruel process of removing horses 10 years and older. These horses have lived their entire lives in freedom, include the majority of band stallions and lead mares who lead the herd. BLM is also aware that these horses are referred to as "sale authority" horses, and may eventually end up in bad situations in which they are eventually sold to slaughter.
"The BLM rejected Ms. Kathrens’ requests for a reasonable approach to the capture and engaged in harmful actions, including chasing newborn foals down steep inclines and running the horses for 10 miles in 90 degree weather. Many of the young foals were lame and some were barely able to walk once they arrived at the corrals where the temperature reached 100 degrees. Respiration rates of young bachelor stallions, who tend to be some of the fittest members of the herd, were recorded at dangerously high levels. After the round up, some of the horses that had been released back into the Range were struggling to walk, holding their legs in the air or were laying down for hours at a time due to exhaustion.
"Ms. Kathrens and Ms. Walker have experienced extreme distress at witnessing the BLM’s harassment of these horses and foals and they fear that they will again witness this type of treatment of the horses during the next roundup. For Ms. Kathrens and Ms. Walker, it is distressing to visit the range in 2010 and not see horses that they have watched for years in the Forest Service lands. It degrades their experience and saddens them every time they return. Even though Ms. Kathrens and Ms. Walker can visit some of the wild horses removed from the FS lands on a ranch near the range, it is not the same as viewing these animals in the wild.
The plaintiffs continue to assert as they did prior to the 2009 roundup that BLM relies on irrelevant, baseless and outdated information to justify its claim the horses removed from the range at that time were "excess" or represented an overpopulation. There was no overpopulation, say Plaintiffs. Indeed, Plaintiffs say BLM’s unnecessary 2009 roundup has jeopardized the genetic viability of Cloud’s Herd.
Plaintiffs’ Amended Complaint alleges BLM’s actions are in violation of the Wild Free Roaming Horses and Burros Act, 16 U.S.C. Sec. 1331 et seq. (WFRHBA) and arbitrary, capricious and beyond its discretion under the Administrative Procedure Act, 5 U.S.C. §§701 et seq.
WFRHBA mandates wild horses and burros are to be protected from "harassment"and "capture" and managed humanely at "the minimal feasible level" as free-roaming "components" of the public lands where they were found as of 1971. Ranges such as the Pryor Mountain Wild Horse Range are supposed to be "devoted principally" to the wild horses that roam there.
Plaintiffs say BLM has also circumvented the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., which requires the preparation of an environmental impact statement (EIS) for any major federal action that signficantly affects the quality of the human environment. The language and spirit of NEPA is aimed at ensuring that an agency’s single-minded approach to a proposed action is tempered by taking a "hard look" at a reasonable range of alternatives, including those with fewer adverse environmental impacts than the proposed action.
Photo credit: R.T. Fitch