Horse News

Update: Appeals Court Allows Cruel Triple B Wild Horse Roundup

Article by Laura Allen of Animal Law Coalition

Let the Carnage BEGIN!

Antelope Stampede earlier this year ~ photo by Terry Fitch

Update July 19, 2011: The 9th Circuit Court of Appeals has now denied an emergency motion for an injunction to stop the Triple B roundup pending an appeal of U.S. District Court Judge McKibben’s order. Last week Judge McKibben denied a motion for a preliminary injunction to stop the roundup.

The BLM is now free to proceed with the roundup. The 9th Circuit  Court of Appeals will hear the merits of the case, but the roundup will be long over by the time a final decision is reached. Too late for the horses.

For more on the roundup and the litigation to try to stop it, read Animal Law Coalition’s report below.

Update July 15, 2011: Just hours after Nevada federal District Court Judge Howard D. McKibben denied a motion for preliminary injunction to stop the Triple B roundup of wild horses, the 9th Circuit Court of Appeals issued an order granted an emergency injunction in the case.

This means for now, pending a decision by the 9th Circuit, the BLM cannot round up and remove wild horses from the Triple B, Maverick Medicine and Antelope Valley herd management areas (HMAs) in eastern Nevada.

The appeals court has set a schedule for filing briefs in the case.

District Court Judge McKibben found the BLM “properly decided” there were excess wild horses that must be removed to maintain “a thriving ecological balance”. The judge accepted the BLM’s claim the horses are reproducing ” at a rate of 20-25% annually”; the judge said the appropriate management levels or AMLs decided by BLM and information in the Environmental Assessement horses indicate the wild horses are “degrading the range habitat“. He rejected as having “little relevance” the plaintiffs’ assertions that the BLM failed to consider the impact of livestock grazing on the range.

Judge McKibben also rejected that the designated ranges or herd management areas must be “devoted principally” to wild horses and burros. This despite the plain language of the Wild Free-Roaming Horses and Burros Act, 16 U.S.C. Sec. 1331, which even with the 1978 amendments emphasizing multiple uses of public lands, specifically states ranges designated for wild horses and burros must be “devoted principally” though not exclusively to them.

The judge also found the roundup and removal did not violate the WFRHBA mandate to manage the herds at “the minimal feasible level”. The judge basically sidestepped the issue, summarizing “plaintiffs have failed to show that a gather of this magnitude is not warranted in order to protect the rangeland habitat and maintain a thriving natural ecological balance. As discussed above, the horse population has grown at an incredibly fast pace, and their numbers are more than five times the lower range AML. Absent intervention, both the horses and the range will suffer”.

The judge did not find any violation of the requirement to manage herds at “the minimal feasible level” in roundups of “non-excess horses into short-term holding facilities and returning them to the range, as well as treating mares with contraceptives” and freeze marking even if these actions destroy families, something the judge called “inevitable“.

We’ll see if the  Appeals Court agrees. For more on this case including the BLM’s environmental assessments, read Animal Law Coalition’s report below.

Original report: A lawsuit has been filed to try to stop BLM’s planned round up and removal of at least 1,726 wild horses from 1,682,998 acres of the Triple B, Maverick Medicine and Antelope Valley herd management areas (HMAs) in eastern Nevada.

Plaintiff The Cloud Foundation describes, “The wild horses of the Triple B, Maverick Medicine and Antelope Valley HMAs are free-roaming on the remote high desert mountains and valleys of east central and northeast Nevada–north of Ely, south of Elko on the Utah border. They have been characterized as a diverse, colorful, intermingling herd with some possessing old mustang origins. Many wild horses descend from an old Shoshone Indian herd known for pintos and paints, as well as a number of medicine hats, horses sacred to Native Americans”.

Only 472 horses would remain after the Triple B roundup, and the mares would all be treated with an immunocontraceptive drug, PZP, to prevent pregnancy for up to 2 years.  This would leave an unnatural sex ratio of 60% male.

46,000 cows and sheep would be allowed to remain to graze.

According to the Bureau of Land Management, the 1,726 wild horses, with about 975 acres per horse, are destroying the range. But apparently 46,000 cows and sheep are having no effect at all on the condition of the range or water. The BLM refused even to consider the effect of so many cows and sheep on the range, let alone reducing their numbers.

As the Complaint filed by Plaintiffs The Cloud Foundation, Craig Downer and Lorna Moffat explains, “Those that are not re-released (about 1,700) would be transported by big rig trucks to long term holding facilities in the Midwest of the United States, where they would live out their lives in confined, zoo-like conditions, separated by sex or sterilized, wild and free-roaming no more.

“Family members would be permanently separated-stallions and mares from each other, and mares and stallions from their foals. Long-term family bonds would be forever severed.  Incarcerated in long-term holding facilities in the Midwest, stallions would be gelded, mares would typically be separated from the gelded stallions, and the acres per wild horse in these fenced facilities would be only a tiny fraction of what it is in their natural homeland in the HMA.”

The BLM is required to justify its brutal roundups and removal of wild horses and burros from the range in Environmental Assessments called EAs. Under the National Environmental Policy Act, “whether by Environmental Impact Statement or Environmental Assessment, the agency must ‘study, develop, and describe appropriate alternatives to recommended courses of action in any proposal…’” 42 U.S.C. §4332(E). The implementing regulations provide that this consideration of all reasonable alternatives is “the heart of” the environmental analysis. 40 CFR §1502.14.

EAs when issued in cases recommending roundups of wild horses and burros are typically cookie cutter reports go something like this: The few wild horses and burros, as in this case, are causing degradation of the range and water sources; the range cannot support the horses and most or all are “excess” which must be removed.

Typically, these EAs fail to mention the numbers of livestock that are more likely the culprit of any range degradation or lack of water. There are any number of cases where the evidence establishes that, in fact, the range can support the few wild horses that under the Wild Free Roaming Horses and Burros Act of 1971, 16 U.S.C. §§1331 et seq., are supposed to be protected from “capture”, “harassment” and “death” and managed at “the minimal feasible level“. Only “excess” horses, those that represent an overpopulation, can be removed. The goal is to maintain a “thriving ecological balance”.

In this case the Decision Record (“DR”), Finding of No Significant Impact (“FONSI”), and Final EA (“FEA”) were issued on May 17, 2011. True to form, BLM claims the few horses are degrading the range. As the plaintiffs’ point out, “the BLM [fails to] explain how any noncompliance with land standards …is not primarily the result of livestock grazing, which is about eight times higher and more intensive than grazing from wild horses“. Complaint, par. 36.

The roundup was to have begun by now but the BLM delayed it pending the July 14, 2011 hearing before the Nevada federal District Court on the plaintiffs’ motion for a preliminary injunction to stop the roundup and removal.

The plaintiffs claim BLM is in violation of the WFRHBA for failing to manage these herds at the “minimal feasible level“. As the Complaint states, “the BLM chose an alternative that manages wild horses more intensively than the ‘minimal feasible level’ of management by unnecessarily subjecting the wild horse herds to harmful immunocontraceptive drugs and an artificial and unnatural skewing of the sex ratio to 60% males, both of which cause harm to the behavioral ecology and social structure of wild horse herds.”

Also, according to the Complaint, the BLM has failed to make a determination that the horses are indeed “excess“.  Under the WFRHBA, only “excess” horses can be removed. BLM says the number of horses exceeds the “appropriate management level” or AML, basically the numbers of horses, usually stated as a low to high, BLM says the range can support. The numbers relied on are at least ten years old; some date back to 1993. Also, it is clear from the EA BLM is removing wild horses to obtain what would be the low end of the AML. And, the “BLM’s own June 2010 Wild Horses and Burros Management Handbook (p. 47) states: ‘Justifying a removal based on nothing more than the established AML is not acceptable'”.  

The plaintiffs further claim BLM violated the WFRHBA by failing to manage the herd management areas “principally” for wild horses and burros.

The Complaint says the BLM violated NEPA in refusing “to fully consider, in the EA, reducing livestock levels” and did not accurately or fairly consider there are predators, mountain lions, that could control the wild horse population.

The Cloud Foundation notes, “Taxpayer dollars paid to the infamous Sun J helicopter roundup crew alone will total approximately $600,000 and that’s just the beginning of the expenditures. The costs in short-term holding, where all the horses will go at least temporarily, will be $8,000 per day based on the target number of horses to be removed. Incarceration for life will add millions to the price tag-all funded by American taxpayers.”  

In the Complaint which names Dept. of Interior Secretary Ken Salazar, BLM Director Bob Abbey and Nevada field managers Gary Medlyn and Brian Fuell as defendants, the plaintiffs ask the Court to enter a permanent injunction to stop the roundup “unless and until the BLM has fully complied with the requirements of NEPA and …WFHBA. Activities to be enjoined include but are not limited to:

1) the utilization of helicopters or other means to chase and capture wild horses and burros for purposes of removing them from the range;

2) the utilization of helicopters or other means to chase and capture wild horses for the purpose of injecting mares with immunocontraceptive drug known as PZP and then returning them to the range;

3) injecting any mares with the immunocontraceptive drug known as PZP;

4) removing more mares than stallions resulting in an unnaturally skewing of the sex ratio of the herds on the range;

5) gelding any stallions; and

6) shipment of wild horses to long-term holding facilities in the mid-west.”

Julie Cavanaugh-Bill and Rachel M. Fazio are the attorneys for plaintiffs in this case.

For more on the Wild Free Roaming Horses and Burros Act…    

For more on the fight to save the wild horses and burros and stop the BLM’s roundups and removals….

47 replies »

  1. This is just so horrifying, that a judge does not LISTEN to plaintiffs that have actual facts. They don’t demand PROOF of the BLM’s “ass..essments”
    R.T. You an the group have such heart to continue. Thank you so much.

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    • This only makes our ongoing battle all the more important. We are legally nibbling away at the BLM under the surface and if we should prevail there will be no further need for TROs. It just takes buckets of money, time, patience and many pitchers of Wrangler Iced Tea.

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      • Another donation on its way right after the 1st! We have to keep trying! We have to for the wild ones!

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  2. The Wild Mustangs are suppose to be protected under Federal Law?????? And these Judges think that they applied Federal Law??????? I think not. they have just allowed a needless Blm round up continue under extreme ly hot weather conditions and have allowed the death sentence to many innocent Wild Mustangs, Classic Corruption on the Federal Level, I am appalled at this decision……………………..and thoroughly disgusted …………….. again the Law fails……………………………

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  3. Now, more than ever, is the time to support the Legal Funds and the Humane Observers who are out there and reporting back to us. We just go back at them AGAIN, and while we’re at it, we have a court system that needs to be straightened out.

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  4. I just don’t understand the legal system. The court will hear the merits of the case, but will still allow the roundup to proceed before they hear the case? That makes no sense. I see a “moot” in the future. This is just wrong.

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    • No, they didn’t hear the “merits” of the case…they granted the TRO based on the possibility that the appeal would be allowed to proceed and may have merit.(correct me if I’m wrong legal eagles….I may have not used the correct terms).

      I had no delusion that the case would be heard in it’s entirety; I was stunned that they granted the TRO and considered the appeal. That is progress folks…not enough for the wild equines in question, but progress.

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  5. One citizen’s facts are another cause for official dismissal.

    Like I said before, we got a TRO…no matter how short in duration.

    The wild ones will suffer.

    We will not go away and are getting smarter and smarter with our legal efforts and opposing science….BUT IT IS GOING TO TAKE BIG BUCKS FOLKS!!!!!! Open up those piggy banks and give a buck, 50 cents…whatever.

    We shall overcome. I retrospect, can we find a place for the wild equine prisoners to preserve them until we can put them back?…premutilation/sterilazation?

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  6. a lot of people have blood on their hands. all for money. the love of money. it will be harder for a rich man to enter the Kingdom of Heaven than it is for a camel to go through the eye of a needle. a needle is a small passageway that a camel has to get down on h is knees to get through. well everyone, pray.

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    • I am all for prayer…but there comes a time when god(God) comes to the aid of those that help themselves….and it takes alot of guts, tenacity, humility, passion and yes, sometimes cash to help ourselves and the equines.

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    • Take that justified anger/frustration and funnel it into determined action is my philosophy. I will not let it eat at my insides nor will I allow it to fester into evil because it’s controlled release manifests itself into my drive, focus and a determination that will not cease until we see this through. Focus is the the key, here. We must stay the path and be thankful for each and every little minor victory that we gain and coming from one of the most impatient, ask Terry, Type-A personalities around that says a lot.

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  7. Tears don’t fill out a court petition; but they certainly motivate those to give, commit and persevere to get the right one that wins the court process.

    Everyone here sheds tears, angst, pain for the injustice…gotta take that energy and find a way to beat the killers; anyway possible.

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  8. why is always too late for the horses? why can’t they wait? why can’t the contractors ever wait for their blood money?

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    • Contracts, money, scheduling, money, contracts, flaws in the 1971 ACT (amend/riders), the law, money, energy trolls, money, water rights, money…did I mention money? ….of which the wildlife, including wild equines have none of.

      I personally believe the 1971 Act was crafted in a manner that everyone that voted for it in Congress, including Nixon’s signature KNEW that it could be ripped apart in implementation/riders/amendments to make them go away in the long run and shut Annie up .

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  9. WHAT IS WRONG WITH THESE PEOPLE?? I AM FURIOUS. I AM SO DISAPPOINTED. I CANNOT BELIEVE THAT THIS ROUNDUP IS BEING ALLOWED. I GUESS MONEY TALKS AND THAT IS ALL THAT MATTERS IN THIS SOCIETY. I AM SO ANGRY. DO ANY OF THESE PEOPLE HAVE HORSES? DO THEY HAVE AN ANIMAL? HOW CAN THIS ROUNDUP BE ALLOWED IN THIS HEAT? WITH THE NEW FOALS? WHO CAN I AWAKEN? DAMN ALL OF THESE PEOPLE.

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    • Sometimes you can look at the judge and other times it is simply the execution of the law. I don’t believe that it would be appropriate, in this case, to bash the judge or publicly comment on the brief as the real systemic problem is the action that the TRO was intended to stop, the grisly stampede…by Sun J I might add…of over 1,600 horses from their rightful land.

      The way to stop the BLM is to finger their process for determining when and where roundups should occur to be flawed, stop them on the front end, not the back end.

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      • And showing the failure of their science..the front end…YEP!!!!!

        You got it RT.

        Still don’t believe this a complete failure…we are getting better at the legal argument.

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      • Laura, you are so right about the need to read!

        When the TRO was granted, I read R.T.’s link to the document:
        http://www.box.net/shared/rfzcvf6uyr2xdk3r3ich

        I noticed that it had been granted under Rule 3-3, and the timeframe under 9th Cir. R. 3-3(b), and wanted to know what that invloved. It’s part of the Federal Rules of Appellate Procedure (FRAP) for the 9th Circuit. It’s long and complicated, but, when you’re dealing with a legal system a convoluted as ours, you just have to get used to it.
        http://www.ca9.uscourts.gov/datastore/uploads/rules/rules.htm

        Circuit Rule 3-3. Preliminary Injunction Appeals
        (b) Within 7 days of filing a notice of appeal from an order specified in subparagraph (a), the parties shall arrange for expedited preparation by the district court reporter of all portions of the official transcript of oral proceedings in the district court which the parties desire to be included in the record on appeal. Within 28 days of the docketing in the district court of a notice of appeal from an order specified in subparagraph (a), the appellant shall file an opening brief and excerpts of record. Appellee’s brief and any supplemental excerpts of record shall be filed within 28 days of service of appellant’s opening brief. Appellant may file a brief in reply to appellee’s brief within 14 days of service of appellee’s brief.

        I noticed “motion to expedite” under (c), but figured that would have been mentioned if one had been filed by the BLM
        (c) If a party files a motion to expedite the appeal or a motion to grant or stay the injunction pending appeal, the court, in resolving those motions, may order a schedule for briefing that differs from that described above. (Rev. 7/1/06)

        Then I saw the Cross References, specifically “Circuit Rule 27-3. Emergency and Urgent Motions”. “Emergency” sounded dangerously familiar to me, and perhaps that’s how the BLM lawyers got the judges to see things their way. I’m not going to put the procedures up. Just the first lines which, IMO, may possibly have been the argument.

        Circuit Rule 27-3. Emergency and Urgent Motions
        (a) Emergency Motions
        If a movant certifies that to avoid irreparable harm relief is needed in less than 21 days …

        As we know from the past, the BLM considers the Mustangs “harmers” to the range by their very presence, but, in this case, I think the BLM’s most potent argument would be the “irreparable harm” (i.e. death) that “would” (not “could”) be done to the horses due to potential lack of water (which had already been established by the hauling) or sufficent forage to survive the winter. It speaks to “protecting” the horses rather than the range. Compassion and altruism, even when feigned, are an effective combination few judges can resist.

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      • This is the AP article on the lifting of the TRO: http://www.greenfieldreporter.com/view/story/7f45006941ae4b52a45a586e65e7a70c/NV–Wild-Horses-Lawsuit/

        Excerpt:

        “BLM officials said that while some rangeland was in good condition, that would change come winter and that the size of horse herds will double every five years if unchecked.

        “They said the delay in the roundup was costing taxpayers $17,000 a day to keep contractors in place, “as well as substantial costs to haul water to keep the horses alive.”

        “Had the roundup been delayed past Thursday, the agency said it would have had to dismiss the contractors and reschedule the gather.”

        I’m sure population growth, money and inconvenience were a major consideration, but, IMO, “would change come winter” and “keep the horses alive” were their key arguements for removing the Mustangs immediately.

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    • Not sure if I’ve hit the proper reply “switch”…but here is my reply to Poor Ginger:

      Barring substantiated evidence that the wild equines would benefit for an extension of stay (which means there is a serious preponderance of data to refute DOI removal data), the main issue becomes that, including the whine period (comments without full and arbitrated acknowledgement resolution re EAs, etc)…you are now screwing with the abortion that is the wild equine contract system. Let me tell you about T4C, Default and the contract arbitration board….it is a nightmare.

      No, this was about invalidating the DOIs findings for removal and terminating the contract.

      But I respectfully defer to those more knowledgeable than I.

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  10. No, folks…we did not file the complaint/petition/etc properly. Are we getting closer? Yep! Now open open those money purses to help those in the field and courts. Gnashing of teeth is fine…to a point.

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    • No, folks…we did not file the complaint/petition/etc properly. Are we getting closer? Yep! Now open open those money purses to help those in the field and courts. Gnashing of teeth is fine…to a point.

      Errr….filing was correct, but content had problems. Beg my stupid.

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  11. I’M PHYSICALLY AND MENTALLY SICK!!!!! HOW ON EARTH CAN THIS HAPPEN??? WHY IS THIS HAPPENING!!!!!! I FEEL AS THO THE LORD ABOVE IS IGNORING THIS ODEAL!!! WHAT NOW????????

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  12. Advocates…don’t forget to vote on the Value of this post (it’s not about liking the results).. I see this on SFTHH blog all the time, a ton of posts and few remember to vote on the importance of the post….importance vote/value does not mean endorsement of content/result.

    I’m beyond being physically ill, I’m getting rev’d up to make a difference and beat the killers at their own game. First stop? Donation to Wild Horse Ed and then to WHFF.

    The “Lord” is not ignoring us…he/she is leading the way to a different path. If you are an atheist or agnostic…then we are still headed in the right direction.

    p.s. thank god, and pray why has he abandoned us stuff only works so far….sometimes, you have to deal with the here and now….we may not be on God’s (god’s) timetable. Want to make a difference? Donate time, money, internet savvy, etc…no disrespect to the God fearing (I’m one). But sometimes, you gotta do more than pray….and yes, prayer is powerful.

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    • Yep! I don’t think the Almighty (agnostic, atheist bear with me) believes in just venting on a blog or sitting on a couch…and that includes the disabled and money restricted. Everyone can do something. Find an active contribution that contributes to the cause…any cause.

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  13. well I’m going home, I’m worn out and my computer at is being worked on. all I can say is “God Bless us–Everyone—-“

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  14. And the plan to scoop these victims up and place them for safe keeping, unaltered reproductive wise is where?

    No reply necessary…but if one wants to save the US wild equine, you better have a scoop up plan at the ready/or bits and pieces plan for advocates to foster these animals until we win legally. Stretch? You bet. Big picture folks..big picture.

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    • Regarading where are the Triple B horses going … I got this message from someone who was at Indian Springs (Fallen Nevada) holding facility last Friday:
      “It is definately sanitized, they have added six holding pens and the facility can now hold 3,000 horses. Palomino Valley only has 25 horses there as they cleaned it out so they could sterilize it after the horrible months of strangles… They are now going to be bringing the Triple B horses there (if the roundup resumes) and any overages will be taken to Indian Lakes…”

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  15. I am heart-broken that the lawsuit was over-ruled. I am by far more heart broken that starting tomorrow wild horses will be injured & killed & torn from their true and rightful lives. Congress stated that they shall not be harassed and how much more harassment is there than being chased across the desert by a helicopter? Very very wrong.

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  16. Where are all those millionaires and well known people that can back and get these horses away from the BLM in a temporary holding range until WE WIN THIS FIGHT?. I wish I had the means to grab up a lot of range land and all our advocates could work to get them to these lands. We seem to be treading water and the ones that will suffer are our beautiful wild horses. THose of you lovers of horses that have money or legal expertise, let’s bombard these idiots until they don’t know where to turn. Maybe we will win and they will all run to sanitariums for relief. We have to try something new as it seems the road we’re on is leading into another big hole.

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  17. Folks, this is one of the most productive thread of comments that I have seen here in a long time. Not that other comments have not been productive but this group is beginning to come around into a major group think that is headed in the right direction:

    1.) Focused
    2.) Receptive to looking beyond the fence in your back pasture
    3.) Putting petty, human, ego driven differences aside
    4.) Pushing for positive change and maintaining civility while doing it.

    This brings me to my comment; in light of the continuing evolution of how important it is for all of us to work together I am issuing a stern warning that this is rapidly becoming a workshop for thinkers and doers so those who wish to flame, snipe, dig, jab, push personal agendas or attempt to deviate the discussion by falling off the vegan cliff can go somewhere else, post haste.

    Here at SFTHH we all come from diversified backgrounds with different political and religious views. Likewise our geographic and socioeconomic demographics are as robust as the count of grains of sands on a beach…and we have all laid our differences aside to stand shoulder to shoulder and embrace the mission that we have mutually accepted as our battle call, “Save the Wild Horses and Burros of the United States of America.” We are strong, intelligent, dedicated and learning better ways and means to work towards our goal everyday.

    This is not a democracy, this is war and we will not allow spoiled apples in our ranks…discussion is good, flaming is not.

    So please be aware that I have an itchy “delete” finger and my aim is to literally die for. Boot Camp is almost over and we are about a heartbeat away from heading out on our first mission…so keep the faith, troops…the fun has only just begun.

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    • R.T., I noticed that I haven’t received any comments to this post today. It may be because of several newer posts, but it may also be because people are confused about showing their passion for the wild ones vs. showing their specific knowledge about the issues and legal complexities.

      IMO, we need both. Not everyone has the time or inclination to commit to research, but they do have a commitment to saving the wild ones. Each of us has an important place in the advocacy, so I say, “Let ‘er rip!” Spread the word as far and as fast as possible ON ALL SOCIAL MEDIA!

      I’ll have something to say on the importance of flooding “all social media” later, but, believe me, it IS important!

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  18. I agree Rt..Decision very disappointing, but we all know how connected they all are. Greed only begets more greed. But now is not the time to feel defeated, it is a time to push even harder so that one day we will have our Wild Mustangs and Burros free from persecution..”Let the Force of the Horse” be with you all. Poor Grandma Greg, it seems you are right there to see this unfolding. Just terrible about the problem with the strangles, just awful…I cannot believe it. Do you think this could ever be referred to the Supreme Court? They are the last stop after all the district courts and appeals.

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    • Gotta get it right on the front end of the legal process. I wouldn’t hope for anything positive out of this current Supreme Court…Justice Roberts controls the docket and he is the one that headed the court that said corporations are people. Let’s do our work up front so the case doesn’t have to go to the Supreme Court…and remember, that court hasn’t gotten alot of issues right in the past (Dred Scot, etc). They have gotten other issues perfectly correct.

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    • “Poor Grandma Gregg” you said, but we know it is not you and me who suffer the most. It is the individual animals (not “numbers” that BLM sees them as) that suffer from the very day they start up that helicopter to chase them. Congressional law states that they shall not be harassed but the contractor’s harass them literally to death under the blanket of the corrupt BLM. And as for the other people who suffer, I have seen wild horses but will my grandchildren and great grandchildren even know what I am talking about when I tell stories about the wild ones? And why is this happening? Very simple: GREED.
      Again, I thank each and every person who does any little thing they can to help our wild ones. We each have a part to play in this story.

      Like

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