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