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.
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 censusÂ in 2010 showed 49 horses in North Piceance andÂ 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 areasÂ 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.
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".