Judge Tells Advocates Lawsuit Was Worth It

Update Jan. 27, 2012:  In a hearing yesterday, U.S. District Court Judge Howard McKibben denied further injunctive relief to plaintiff Laura Leigh in her challenge to BLM’s inhumane treatment of wild horses during the Triple B roundup. The judge was adamant, however, in stating that the court was and will continue to be concerned with the care and handling of wild horses within Northern Nevada and reminded plaintiff Laura Leigh and the wild horse advocates present that their actions resulted in the following actions by BLM:

  1. The Triple-B roundup was halted 
  2. The BLM conducted an internal investigation into its contractor’s conduct at the roundup 
  3. From said investigation opportunities for improvement were identified and a recommended list of appropriate contractor behaviors was itemized (which the Judge recommended to become required policy and procedure)
  4. The BLM will not be conducting any roundup activities in the Triple-B complex during 2012

Judge McKibben recognized Leigh’s standing and left the court’s door open for further litigation on behalf of the wild horses and burros should the situation warrant.

"We found a dent in the BLM’s armor and likewise a Federal Judge who understands the issues," said R.T. Fitch, President of Wild Horse Freedom Foundation, "and, it is now incumbent upon ourselves and the advocacy to present noted discrepancies in an undisputable manner so as to permanently effect positive change in the handling and humane management of our national icons, the wild horses and burros of the United States".    

For more on this case and the judge’s initial issuance of an emergency temporary restraining order, read Animal Law Coaltion’s report below. 

Original report: A federal judge has issued an emergency temporary restraining order in a second lawsuit filed in connection with the Triple B wild horse roundup.

The Bureau of Land Management (BLM) is currently rounding up wild horses in the Triple B, Maverick-Medicine, and Antelope Valley Herd Management Areas ("Triple B Complex" or "Triple B") in northwestern White Pine and southern Elko counties in Nevada.

On August 31, 2011 U.S. District Judge Howard McKibben issued a Temporary Restraining Order against the continuation of documented inhumane conduct by the helicopter pilot hired by the BLM to round up the horses. Judge McKibben found the BLM’s pilot was "in violation of" the Wild Free Roaming Horses and Burros Act, 16 U.S.C. Section 1331 et seq.

Under the Act the horses that are rounded up as "excess" must be captured "humanely" and the BLM must "assure humane treatment and care" of these horses. 16 USC 1333 (b)(2)(iv)(B) Federal regulations define humane treatment as "handling compatible with animal husbandry practices accepted in the veterinary community, without causing unnecessary stress or suffering to a wild horse or burro." The regulations state that "[i]nhumane treatment means any intentional or negligent action or failure to act that causes stress, injury, or undue suffering to a wild horse or burro and is not compatible with animal husbandry practices accepted in the veterinary community. 43 CFR Sec. 4700.0-5. Wild horse and burros roundups using helicopters "shall be conducted in a humane manner." 43 CFR § 4740.1. The plaintiffs, Laura Leigh, also claim the pilot’s abusive treatment of the horses violates Nevada animal cruelty laws. N.R.S. 547.100

A video taken by plaintiff Laura Leigh shows a BLM contract pilot coming dangerously close to an exhausted horse, apparently hitting the animal. In fact, Youtube has banned the video as too disturbing for some viewers. Judge McKibben noted the evidence submitted by BLM in denying any wrongdoing was contradicted by the video. The judge said he did not appreciate the "blame the horse" direction of the BLM’s statements. "I am deeply concerned," Judge McKibben stated to Eric Petersen, BLM’s legal counsel, "that declarations presented to the Court by the Agency do not address the issue, but simply deny wrong doing."

This is no surprise that BLM would deny obvious abuse. In fact, it would be no surprise  for BLM to turn the truth upside down by claiming the weather, not the brutal roundup, is the cause of the horses’ suffering and BLM is simply trying to save them. In the Tuscarora round up, for example, BLM did not mention "emergency" conditions as a reason for the round up in any of its planning documents. Then when horses began collapsing during the 2010 summer roundup from dehydration as they were forced by helicopters to run for miles in the searing heat, BLM claimed the round up was necessary because of drought conditions.

The judge in this case entered an emergency temporary restraining order prohibiting "the use of the helicopter as demonstrated on 8/11/11, that is, striking horses with the skid or flying the skid or part of the helicopter being dangerously or unreasonably close to the horses during the remainder of the first phase of the round up at the Triple B Complex. …This order does not preclude the Defendants from proceeding with the Triple B round up as represented by Defendant’s counsel, that there will be no further use of helicopters for the remainder of the round up scheduled to end 8/31/11. Should the Defendants contemplate the use of helicopters on the Triple B Complex in the future, they will need to address the concerns raised by this Court or be subject to possible additional intervention by this Court in the future".

The judge did not grant the motion as to other complaints including the BLM’s failure to provide sufficient food and water for the horses or stop the excessive dust created by the helicopters. Judge McKibben did say, however, that if the horses drain the water they should simply be given more.

Leigh is an award recipient illustrator and a journalist / videographer who reports on issues dealing with the American West.  In her motion she stated, "There are multiple instances of mishandling or negligent handling, or inhumane handling of captured wild horses at Triple B occurring nearly each day". 

She describes the helicopter as "dangerous" and described the operation as "pushing of an exhausted horse with the skid of the helicopter while flying, causing unnecessary chasing or driving …., causing fracturing of wild horse family bands, causing unnecessary injury and stress to horses, particularly to young, unweaned foals, and causing the orphaning of young, unweaned foals.

"In one instance, the helicopter operation is so dangerous, that the pilot, using the skid of the helicopter, pushes an already exhausted horse while the helicopter is flying and in operation during the roundup."

Leigh noted the horses knock over the few unsecured tubs of water there are and that BLM simply does not provide enough water and hay for them.  "Temperatures have reached as high as 96 degrees during operation days. This typical scenario has implications that foals as young as two weeks old, that have been run significant distance in the summer heat, may not have access to water or their moms, for 8 hours."

Dr. Bruce Nock, an expert on stress suffered by wild horses in captivity, testified "that the current roundup operation at the Triple B Complex demonstrates a lack of comprehension of the effects of actions on the welfare of the wild horses the BLM is rounding up." Dr. Nock continued,

"Based on my review of these materials, and considering my background on the subject, it is my opinion, that the use of the helicopter to literally and physically touch an already over taxed animal so as to cause the horse to move further, is not in accordance with the best welfare of that animal, and is inhumane treatment….[T]o use hotshots on horses already over-taxed or stressed, in order to expedite the BLM’s movement and loading of the horses they captured, may be good for the BLM’s fiscal efficiency but that conduct is not humane handling of these horses….

"[T]o run foals under two months (whose systems are fragile and undeveloped) at distance and in the desert heat of that experienced at the Triple B Complex roundup, is not humane."   

Leigh also pointed out BLM used the same helicopter contractor, Sun-J, at the earlier Antelope roundup where the same abuses were observed. Indeed, BLM has a history of blatant abuse of wild horses and burros during roundups: BLM has insisted on using helicopters to frighten and stampede wild horses as a means of capture rather than humane water trapping or bait methods; BLM has rounded up horses in extreme weather conditions, causing unnecessary injury, death and suffering. A 2008 report from the Government Accountability Office states that from 2005 to 2007 at least 1.2 percent of the horses removed from these states were euthanized or died during the roundup process.

It is much higher now.

As a result of the Calico roundup in 2009, 153 horses including aborted foals died; two foals ran so hard their hooves were literally torn off. This number does not include the untold suffering of hundreds of horses, injured, sick, terrified and separated forever from their bands or families.  In the Tuscarora roundup in 2010, more than 5% of the wild horses rounded up in Nevada died.  A lawsuit challenging the 2010 Twin Peaks roundup also alleges inhumane treatment of horses.

It is not just Sun-J; BLM has typically hired Dave Cattoor to conduct the helicopter roundups. Cattoor was previously convicted of using a helicopter to take wild horses illegally from the public lands.

An earlier lawsuit to try to stop the Triple B roundup was rejected by Judge McKibben and the appellate court, the 9th Circuit Court of Appeals. But the case remains pending.

Photo by Craig Downer 

Lawsuit Filed to Stop BLM’s Wild Horse Castration Plan

Plaintiffs Decry BLM’s Plan to Turn Wild Horses into "Ranch Animals"

Update Dec. 23, 2011: Following the filing of the lawsuit, BLM announced it would postpone plans to zero out the wild horses on Jakes Wash and castrate male horses, returning them to the Pancake Complex.  Read about the lawsuit below.  

Original report: Once
again Western Watersheds, The Cloud Foundation and American Wild Horse
Preservation Campaign are challenging in court "a controversial and
precedent-setting ‘pilot’ program by the Interior Department’s Bureau of Land
Management ("BLM") under the Wild Free-Roaming Horses and Burros Act ("Wild
Horse Act" or "WHA"), 16 U.S.C. §§ 1331-1340, to roundup, castrate, and return wild horses to the public lands in Nevada". 

Downer, a renowned wildlife ecologist, and Arla Ruggles, a wildlife
photographer, are also plaintiffs in the Complaint filed in U.S. District Court
in Washington, D.C.  

the agency withdrew a decision to castrate wild horses when AWHPC filed suit. Am. Wild
Horse Preservation Campaign v. Salazar,
Civ. No. 11-1352 (D.D.C.) (ABJ) Dkt. Nos. 13-14
(Aug. 8, 2011).

new lawsuit also challenges the BLM’s decision to permanently remove all of the
wild horses from approximately 153,663 acres of public lands called Jakes Wash,
on the purported grounds that there is not enough forage and habitat for the
horses. This despite the thousands of cattle and sheep BLM permits to graze on
these same public lands, animals that, unlike the wild horses, are not required
to be "‘protected’ as an ‘integral part of the natural system of the public
lands.’" 16 U.S.C. § 1331.

Complaint in this case targets "BLM’s decision to permanently remove all of the wild horses
from Jakes Wash, to castrate and return male horses to the Pancake Complex, and
to remove 84% of the current population of wild horses in the Pancake Complex"
as violations of the "mandate of the WHA".

challenge that BLM’s "scientifically unsound, controversial, untested, and
radical approaches for the management of wild horses" violate the requirements
of the WHA to "protect and manage" these "wild and free-roaming" horses as
"living symbols of the historic and pioneer spirit of the West" and to ensure
that "all management activities shall be at the minimal feasible level." Id. §§
1331, 1333(a).

point out that "BLM’s decision to return a significant number of
‘non-reproducing’ geldings to the Pancake Complex is inconsistent with the
agency’s own regulations which require it to manage these wild horses ‘as self-sustaining
populations of healthy animals,’ 43 C.F.R. § 4700.0-6(a), and is therefore
arbitrary, capricious, an abuse of discretion, and not in accordance with law
in violation of Section 706(2) of the APA….

BLM’s decision to set the AML for wild horses in the 2008
RMP, and to implement
that decision in the ROD on the Pancake Complex, without first conducting an ‘an
in-depth evaluation of intensive monitoring data or land health assessment. . .
. includ[ing] studies of grazing utilization, range ecological condition and
trend, actual use, and climate (weather) data [as well as] [p]opulation
inventory, use patterns and animal distribution" violates the BLM’s own process
for making AML determinations, BLM Handbook at,, and is also
arbitrary and capricious and an abuse of discretion."

Complaint states, "The BLM’s decision to castrate wild horses and to
permanently remove an entire wild horse population also violates its own
resource management plan for this area of public lands which requires it to
‘protect’ and ‘maintain’ viable, ‘self-sustaining’ herds of ‘wild’ horses while
retaining their ‘free-roaming’ nature, and the BLM has violated its obligations
under the Administrative Procedure Act, 5 U.S.C. §§ 551-706, by failing to
consider the impacts of its actions on both the individual horses and wild
populations as a whole; failing to explain the basis for its management
choices; and failing to respond to significant comments in opposition to these
management actions, including sworn declarations from biologists and others
concerning the significant adverse affects such actions will have on these wild

NEPA Violations

to the Complaint, BLM has also violated the National Environmental Policy Act
("NEPA"), 42 U.S.C. §§ 4321-4370f, by ‘failing to adequately analyze[, to take
a ‘hard look’ at] the environmental consequences of its decision on the
individual wild horses or the herds as a whole; failing to consider reasonable
alternatives such as reducing the amount of livestock permitted on these lands;
and failing to prepare an Environmental Impact Statement ("EIS").’

plaintiffs, in particular, allege:

the BLM’s decision to adopt an untested "pilot" management approach that involves
castrating a significant number of wild horses and returning these severely
impaired animals to the range is extremely controversial, implicates impacts on
the wild horses and the environment that are highly uncertain, establishes a
precedent for future actions with significant effects, and will cause the loss
or destruction of a significant cultural resource – i.e. the free-roaming horses
that Congress has commanded the BLM to "protect" – the agency’s failure to
prepare an EIS before proceeding with this action also violates NEPA and the
CEQ’s implementing regulations.

….  BLM failed to analyze the environmental
effects of the action on the behavior and physiology of wild horses subjected
to sterilization and then cast out back on the range. Nor did the agency
analyze the action’s effects on the social organization or long-term
survivability of the herds – comprised in substantial part of non- reproducing

also failed to explain how an action that results in converting the majority of
the wild male horses in these herds into castrated horses more akin to ranch
animals is consistent with the agency’s obligation "to protect and manage wild
free-roaming horses" as "living symbols of the historic and pioneer spirit of
the West." 16 U.S.C. § 1331.

Castrating a male horse decreases muscle mass and strength, reduces bond
density, and increases frailty – all of which puts the horse at a significant
disadvantage on the range in terms of survival. Castration will also adversely
affect the horse’s behavior in the herd. For example, wild stallions who are
part of family bands try to protect their mares from harassment by other
stallions to secure exclusive reproductive access to the mares, and wild
stallions who are part of bachelor bands of stallions attempt to displace band
stallions and acquire reproductive access to mares. Geldings do not exhibit
these natural wild horse behaviors.

Adding a substantial number of castrated geldings to a wild population will
have definite and noticeable adverse impacts on individual wild horses and on
the social structure of the herds as a whole.

What This Means for the

determined that 1,847 of the combined approximately 2,208 wild horses believed
to exist in the Complex, are in "excess" of the combined low AML for the area
of 361 horses. AML or "appropriate management level" refers to the  range of numbers of wild horses and burros
the range can sustain, at least according to BLM.  BLM has been managing, or rather, removing
wild horses and burros, to keep only the low end of AML on the range. Thus, BLM
will retain a total of 361 reproductive wild horses – in conformance with the
lowest end of the combined AML (361-638) – over the course of two to four
gathers to take place over six to ten years.

proposes to round up "approximately 65-70% of the existing wild horses in the
Pancake Complex – approximately 1,435-1,540 horses in the initial 2012 gather –
every two to three years, and to permanently remove approximately 800-1,000
horses from the range each time, until the low AML of 361 reproductive wild
horses is achieved, which the agency projects will most likely occur in six to
ten years. … The proposed action additionally called for a ‘non-breeding
component of 200 geldings’ that would be returned to the range in addition to
the 361 reproductive horses needed to achieve the low AML, meaning that
approximately 36% of all of the remaining wild horses in the Pancake Complex
and 60% of the remaining male horses will be unable to reproduce when the
roundups are completed. Id. The proposed action also sought to intentionally
skew the sex ratio of the Pancake Complex’s herd – 60% males to 40% females –
and to use two-year fertility control treatments of the Porcine Zona Pellucida
(PZP-22) vaccine for all of the female horses returned to the range."

BLM will also eliminate all of the wild horses from Jakes Wash, based on the
BLM’s determination that "[r]emoval of all excess wild horses from the Jakes
Wash HA is needed" to meet the management directives of the 2008 Ely RMP –
i.e., to implement its determination that there is not enough forage and
habitat to sustain any of these horses. Yet, BLM’s own reports show
that  Jakes Wash currently supports 132
wild horses.

currently allows up to 2,320 cows and 3,131 sheep to graze in Jakes Wash.

to the BLM’s records, the BLM currently allows up to 8,691 cows and 18,082
sheep in the Pancake Complex as a whole.

and wild horses use the same forage and also compete for water and other
resources on the range.

BLM has failed to explain in any of its planning documents "why all of the wild
horses must be removed from Jakes Wash on the ground that there is purportedly
‘inadequate’ forage, water, habitat, and other resources available for wild
horses, yet the agency has decided to continue to allow livestock to remain in
the same area at the same levels, …and that the most recent habitat evaluation
in Jakes Wash showed that ‘[c]attle grazing is a contributing factor’ to not
achieving the BLM-required habitat standards to avoid damage to the range."

plaintiffs call this decision a "sudden reversal of position from one [BLM] has
maintained for nearly forty years – i.e. that wild horses must be
maintained and protected in Jakes Wash".

BLM is planning to conduct its first roundup in the Pancake Complex in January

who are represented by Katherine A. Meyer, Meyer, Glitzenstein and Crystal, are
seeking a declaration that the BLM has violated the Wild Free-Roaming Horses
and Burros Act, the National Environmental Policy Act, and the Administrative
Procedure Act; and an order enjoining defendants from taking any further
actions to roundup and remove any wild horses from the Pancake Complex,
including Jakes Wash, until they have fully complied with the provisions of
these statutes.

copy of the Complaint is attached below. For more on the BLM’s planning documents for the Pancake Complex roundup….


“Grazing Improvement Act” a Misnomer

Federal Senate Bill 1129 is akin to the kid who has been handed a plate of cookies and then demands the entire batch. 

It is no secret that grazing rights on America’s public lands represent a substantial giveaway of taxpayer money largely to big corporations.

The Bureau of Land Management and the U.S. Forest Service which manage the public lands, currently charge only $1.35 per cow and calf for grazing on public lands.  As conservation groups told President Obama last year, that translates to an astonishing taxpayer subsidy of "$132 million each year, and independent economists have estimated the true cost at between $500 million and $1 billion dollars a year." This even though livestock grazing on public lands provides only 3% of beef produced in the U.S. More than that, the artificially low fee in no way provides the revenue necessary to take steps to mitigate the damage and restore the ecosystems of public lands destroyed as a result of livestock grazing.

The conservation groups also say the program "incentivizes destructive grazing practices".

"The Government Accountability Office reported in 2005 that the BLM loses $46.5 million every year administering its grazing program. This is equal to 5 percent of the agency’s 2011 budget request. The Forest Service loses at least $69.5 million dollars a year on its grazing program. This is more than 1 percent of its 2011 budget request."  

But now, those that control these valuable grazing rights want more. Sen. John Barrasso (R-WY) has introduced S.B. 1129 under the misnomer, "Grazing Improvement Act of 2011".

The bill would amend the Federal Land Policy and Management Act of 1976, 43 U.S.C. 1751 et seq. 

The bill would broadly exempt any "renewal, reissuance, or transfer of a grazing permit or lease" from the requirements of the National Environmental Policy Act ("NEPA") if the "current grazing management" continues. This means there would be no environmental assessment required for the continued use of an allotment on public lands for grazing.

Even renewals, reissuances or transfers that contain modifications of grazing permits or leases are exempt if the changes are "minor", whatever that means,  and (1) the federal agency believes the "current grazing management has met, or has satisfactorily progressed towards meeting, objectives contained in the land and resource management plan" and (2) "the decision is consistent with the policy of the Department of the Interior or the Department of Agriculture, as appropriate, regarding extraordinary circumstances".

The agencies could allow grazing to continue pending appeals of a decision by a permittee.  

The 10 year period for a grazing permit or lease would be extended to 20 years. 

It would be up to the agency’s "sole discretion" to determine the priority and time for completing any environmental analyses required. The decision would be based on the "environmental signifcance" of the land and funding. 

This bill would eliminate any accountability for environmental damage by grazing permittees and would mean they would continue to occupy public lands with even more rights at the same low price, all at taxpayer expense.  

Go here for more on NEPA and a lawsuit brought last year that highlighted the difficulty already of getting the Bureau of Land Management and U.S. Forest Service to obtain environmental assessments, set appropriate fees, limit grazing or really do anything to protect public lands from overgrazing by cattle.

Go here for more on a letter sent to Pres. Obama last year, calling on the administration to end subsidized grazing on public lands.  

Pancake Complex Roundup

From The Cloud Foundation, www.thecloudfoundation.org   

Update December 15, 2011: Read here about a lawsuit filed to stop the Pancake Complex roundup.

Update Oct. 31, 2011: The period for submitting comments to the BLM regarding the Pancake Complex roundup is now over.  

Original report: Nevada wild horse herds are on the chopping block in FY 2012 with roundups scheduled to begin in the dead-of-winter… again!

The Pancake Complex which includes the Sand Springs Herd Management Area HMA), Pancake HMA, Jakes Wash Herd Area (HA), and the Monte Cristo Wild Horse Territory is an enormous 1.2 million acres in northeastern Nevada south of Ely. Helicopters are scheduled to swoop in, driving terrified wild horses for 10 miles or more in January-the coldest month of the year.

We’re asking that you submit comments in response to a truly shocking Environmental Assess (EA) that calls for the elimination of all wild horses in the Jakes Wash HA. In the remaining HMAs, 70% of the horses would be removed, PZP-22 would be given to any mares released back onto the range, and 200 stallions would be released back into the HMAs only after they have been gelded, operated on in either make-shift temporary corrals or in short-term holding facilities. Only 361 truly wild horses would be allowed to occupy 1.1 million acres (acreage without Jakes Wash) in addition to 200 neutered males who no longer qualify as wild horses as they no longer have any role to play in the once rich and complex society from which they came.

Comments must be submitted by Friday, October 28th, no later than the close of business at 4:30 PM Pacific Time. If you feel like a little light bedtime reading, you can read the EA here.

Dear Sir:

I do not support the removal of wild horses from the Pancake Complex. Allowing only 361 (and 200 geldings) to live on their legal wild horse areas, even though they roam over 1.2 million acres of public lands, is unfair to the mustangs still living free, and to those of us who enjoy seeing them in their natural environment in Nevada.

Gelding stallions and releasing them back into the HMAs violates your legal responsibility of managing for sustainable herds. No research exists on how this radical policy. Regardless, you threaten the social dynamics of wild horse society and ensure chaos and the eventual extinction of the herd.

Removing all the horses from Jakes Wash is illegal. They were legally designated by the Wild Horse and Burro Act to live in this area. How can you justify allowing privately owned cattle and sheep in this area, while calling for the elimination of every single wild horse?

Running wild horses with helicopters in the dead of winter is inhumane and dangerous. Over 140 horses died at this same time of year in the Calico round up of 2009-2010.

I ask that you issue an Environmental Impact Statement before taking the drastic actions outlined in this EA. And, in the meantime, I encourage you to select the No Action Alternative.

When you write your own letter, be sure to include some of the following points:

  • Increase the appropriate management levels (AMLs) and allocate a fair share of forage to wild horses over livestock.
  • Do not remove all wild horses from the Jakes Wash HA, it is a legally designated range as established in the Wild Horse and Burro Act of 1971.
  • Strongly urge BLM not to put back out geldings onto the range. The effects on herd dynamics has not been researched.
  • Push for an accurate census using the most up to date technology, not the outdated aerial headcount used now
  • Do not conduct a helicopter removal during the winter. If removals are justified, opt for bait and water trapping.
  • Consider predator management as a viable population growth. Work with the local fish & wildlife divisions to urge the reduction of hunting tags permitted for mountain lions.
  • Point out that taxpayers could save over $535,000 in contractor fees as well as millions more from holding costs by not conducting this roundup!
  • Allow for a truly genetically viable herd in each HMA, HA, and Wild Horse Territory with a 50/50 sex ratio.
  • Reconsider the use of PZP-22, as it is an unvetted drug. Opt for the one-year drug.
  • Protest the cruelty of removing older horses! Older horses are targeted for removal second only to animals under 4 years of age.

[Your name]