TWO WINS FOR AMERICAN NATIVE WILD HORSES

“The attached press release, below, gives the inside story of how the Oregon wild mare sterilization experiments were stopped by an appeal to the Department of Interior’s IBLA (Interior Board of Land Appeals) by a coalition of equine advocate, animal welfare and environmental groups.  Thanks again to all the individuals and groups that supported our appeal and kept believing we could win.  The topsy turvy events of the past week demonstrate that unity is more important than ever to protect our public lands and the wild animals we cherish.” ~ Charlotte Roe


Citizens Against Equine Slaughter

8 month old fillies at BLM's Hines, Oregon holding facility...saved from the "experiments" ~ photo by R.T. Fitch of Wild Horse Freedom Federation

8 month old fillies at BLM’s Hines, Oregon holding facility…saved from the “experiments” ~ photo by R.T. Fitch of Wild Horse Freedom Federation

In a precedent setting case with the Department of Interior’s Board of Land Appeals (IBLA), environmental, animal welfare and wild horse advocate groups joined forces to defeat Bureau of Land Management (BLM) brutal plans to sterilize 225 wild mares, fillies and foals in Oregon’s Hines corrals in cooperation with Oregon State University (OSU).

On July 29, 2016, the BLM and IBLA received a Notice of Appeal and Stay of Implementation Petition from a coalition of 14 environmental groups. The Notice/Stay named Citizens Against Equine Slaughter (CAES), Oregon Wild Horse & Burro Association (OWHBA), Central Oregon Wild Horse Coalition (COWHC) and Wild Equid League of CO (WELOC) as the main appellants.

On August 4, 2016, BLM filed a motion to dismiss the appeal with the IBLA. They claimed appellants did not have standing or proper representation.

On August 12, Appellants delivered a response to this motion proving that our representative was indeed a pro se attorney and that she was the founding member of the lead advocate group, Citizens Against Equine Slaughter (CAES). Several affidavits were delivered proving standing of all the appellants. In particular, one member of both CAES and OWHBA who is disabled, challenged BLM’s claim of no standing of a person who cannot physically stand out on the range or travel to the holding pens as often as BLM felt was necessary to be considered sufficient for “standing.”

Two other appeals filed by individuals were dismissed September 7, 2016, for lack of standing. This coalition’s appeal was the only action that stood. Three lawsuits were also filed, but the Board’s procedures dictate that these legal challenges could not be considered until the it acted on the IBLA appeals.

On August 29th, 2016, the Coalition filed their Reasons for Appeal Brief. Among the affidavits delivered with this brief were the eyewitness testimony of an individual who watched Dr. Leon Pielstick perform ovariectomy via colpotomy on burros and mares during a public workshop in Arizona. This video and testimony demonstrated that the procedures were not successful, and that the death rate was significantly higher than that allowed by veterinary standards.

Seven business days after the reasons for appeal and these documents were presented in the case, the BLM submitted a Motion to Vacate and Remand. This was done because BLM no

longer wished to implement the Decision of Record (DR). In all likelihood, the Agency chose to avoid the risk that the Board could rule against it, setting precedent for the horses. On September 9, 2016, the IBLA Vacated and Remanded the DR to the BLM. This action meant the BLM’s decision to sterilize the wild mares and foals was vacated and rescinded. Implementation of these experiments would now be illegal.

The pressure put on the Department of Interior and BLM due to this Appeal, public outrage and a combination of related actions stopped BLM and OSU from submitting these wild mares to barbaric, unwarranted experiments and dangerous surgeries that would have resulted in the deaths of many mares, aborted foals, and permanent injury for countless others that may have survived.

To date, the coalition is formed of the following groups: Citizens Against Equine Slaughter, Oregon Wild Horse & Burro Association, Central Oregon Wild Horse Coalition, Wild Equid League of Colorado, In Defense of Animals, Wild Horse Freedom Federation, Union for the Preservation of Wildlife, Animal Rights Leadership Council, Animal Horse Defense Coalition, Mobilization for Animals, Monero Mustang, New Mexicans Against Horse Slaughter, Wild Horse Observers Association and Pity Not Cruelty.

The coalition is growing and will continue to fight to keep wild horses and burros alive and free, and to defend all wildlife and the health of public lands.

The day we received the news of the victory with IBLA, the BLM’s Wild Horse and Burro Advisory Council voted with one dissent (by Ginger Kathrens of The Cloud Foundation) to recommend that the BLM euthanize all ‘unadoptable’ horses in long-term holding. This would mean killing some 45,000 healthy wild horses that the BLM had removed from the range. Killing captive prisoners whether human or animal is NOT what we or most Americans can accept. It HAD to stop, and it has been stopped by a tremendous civic uproar. This afternoon BLM announced that it has no plans to perform mass euthanasia. Our wild horses and burros have had a good week. How long will it last?

For questions or more information please contact:
Val Cecama-Hogsett, CAES & OWHBA media liaison Phone: 541.315.6650
Email: val4.wildhorses@gmail.com
Facebook: https://www.facebook.com/groups/CAES4OWH/

News analysis: Lawyers to debate what makes a wild horse wild

By Dave Tomlin / Ruidoso News, N.M. (TNS) as published in the Albuquerque Journal

“How does the Livestock Board distinguish this herd from the Placitas herd in the Court of Appeals case?”

photo courtesy of wildhorsesofalto.blogspot.com

photo courtesy of wildhorsesofalto.blogspot.com

As the lawyer for the New Mexico Livestock Board stood before him last week, District Judge Dan Bryant asked what is sure to be a key question if the lawsuit over the future of the wild horses of Alto goes to trial.

“How does the Livestock Board distinguish this herd from the Placitas herd in the Court of Appeals case?” Bryant asked Asst. Atty. Gen. Ari Biernoff.

The judge was referring to a case in which the appellate court ruled last year that the Board shouldn’t have treated a free-roaming herd of wild horses near Placitas as if they were “estray” livestock, just as they tried to do with the Alto herd.

To those who love Lincoln County’s free-roaming horses, the answer is self-evident. There’s no difference at all between the Alto horses and the Placitas horses, and the Livestock Board is wrong again.

The horse advocates may be exactly right. But that doesn’t mean lawyers won’t find plenty to argue about as they belabor what may look to equine-loving eyes like the obvious, if and when Bryant takes the bench to preside over Wild Horse Observers Association (WHOA) v. New Mexico Livestock Board.

Here are some of the legal and factual points a trial may raise:

1. The Court of Appeals opinion accepted WHOA’s claim that the Board “took the auctioned Placitas horses directly from public land before auctioning them.” But the Alto herd was penned up by a private landowner who summoned the Livestock Board to collect them.

We’ll discuss later why it might matter a lot where the Board picked up the horses. But one side, or maybe both, may argue that the Court of Appeals was misinformed about where the Placitas herd was picked up and by whom.

Corrales attorney David G. Reynolds, an attorney for one of the private landowners who intervened in the Placitas case on the Livestock Board’s side, told the News last month that the herd was actually captured on private property just like the Alto herd.

The point was never hashed out in court because 2nd District Court Judge Valerie Huling dismissed the case. The Court of Appeals sent it back to her for trial, but last week Huling dismissed it again because the Placitas horses are all gone and there’s no longer any herd to argue over. As lawyers say, the case is “moot.”

But since Bryant may have to decide whether the Court of Appeals ruling controls the outcome of the Alto case, he might hear arguments or evidence that the relevance of the appellate court opinion should be discounted because it was based on incorrect facts.

2. The New Mexico Livestock Code defines a wild horse as “an unclaimed horse on public land that is not an estray.”

The wording of this statute is the reason it might matter where the Board picks up any given group of unclaimed horses. The Court of Appeals ruling never says what an unclaimed horse on private land might be, because it presumed the Placitas herd was on public land as the statute appears to require.

Biernoff told Bryant last week that this is a “critical” difference between the Placitas and Alto cases. But even if the facts show that both herds were actually taken by the Board from private land, the Board may still argue that the Court of Appeals ruling doesn’t apply to the Alto herd.

Bryant could end up scratching his head over how much the extensive reasoning in the Court of Appeals decision depends on where the horses happened to be picked up.

He also may be asked to consider whether the legislature really intended to say that a wild horse suddenly stops being wild whenever it strays or is lured or led from public land onto private land.

Reynolds told the News a wild horse on public land turns instantly into “a large packrat” on private land in the eyes of the law. Since neither the statute nor the Court of Appeals ruling says anything about a free-roaming unclaimed horse on private land, he said, such a beast has no more legal standing or protection than a varmint.

But Albuquerque attorney Steven K. Sanders, who has represented WHOA in both cases, told the News last week before the hearing that this would be “a travesty” and could not have been what the legislature meant the law to say.

3.The Livestock Code says “public land” does not include federal land controlled by the Bureau of Land Management, the Forest Service or state trust land controlled by the state land office.

When you take all that away, plus all private property, an awful lot of Lincoln County is off the table as the kind of land on which a free-ranging horse can be considered legally wild, if the statute means exactly what it says.

Bryant ruminated aloud about that in court last Friday, even though nobody had asked him to. He seemed to conclude that in dealing with this case he will have to decide whether the Alto herd could have spent significant time on “public land” as the Livestock Code defines it.

It’s hard to say how important that will be to the case. But if Bryant was already thinking about it on his own in a preliminary hearing, a smart lawyer would probably have to consider it very important.

4. The only other definition in state law of a “wild horse” besides the one in the Livestock Code doesn’t seem to fit the Placitas and Alto herds.

The Court of Appeals opinion cited a New Mexico Administrative Code section that said a wild horse is a feral horse in an “untamed state having returned to a wild state from domestication.”

That doesn’t describe the wild horses in these cases, which everyone seems to agree have never been owned by anyone in their lives.

But it’s still possible the code section may come into play anyway. Read on.

5. State law defines livestock as “domestic or domesticated animals.” WHOA says that means the Placitas and Alto herds can’t be livestock. The Livestock Board begs to differ.

Biernoff indicated in last week’s hearing that the Board may try to portray the Alto herd as domesticated.

“We’ll have testimony about how this herd was living,” Biernoff told the judge. “We believe that the horses were being fed, having social interaction with people. We might need more evidence on this.”

Biernoff questioned some of Sanders’s witnesses about the Alto horses’ docile behavior. Then he called Caroline McCoy to the stand. McCoy is the property owner who penned up the 12 Alto mares and foals for the Livestock Board to take away. She described how she led them easily into an enclosure while riding her all-terrain vehicle.

Finally Biernoff called a Lincoln County rancher named Ashley Ivins to testify. His main goal with Ivins seemed to be to have her describe her familiarity with the kind of mustangs found on federal Bureau of Land Management ranges and how different they are from the Alto horses.

“They’re true wild horses,” Ivins said. “They’re mean and wild. They won’t eat out of your hand or be near people.”

So the definition of “domesticated” may be among the points Bryant will be asked to consider. And even if he agrees with the Board that the Alto horses have displayed domesticated behavior, he would have to weigh that against the fact that they’re also unclaimed and free-roaming.

Not many cases give a district judge the chance to address important gaps in the law left by both the state’s legislature and its second highest court. The novelty of the judicial opportunity could have been one reason Bryant put a stop to the Livestock Board’s attempt to auction the Alto herd.

But the judge was clearly troubled by the possibility that the Livestock Board is finding it easier to win wild horse cases on the auction block than in the courtroom, especially after the Placitas judge concluded that if the herd is gone, the case goes away too.

Bryant asked Biernoff during the hearing how a court could ever get a chance to review the Livestock Board’s actions and decide the legal issues surrounding New Mexico’s unclaimed, free-roaming horses if the Board were allowed to keep selling them off as soon as it gets its hands on them.

Biernoff uttered some words in reply to the judge’s question, but they didn’t contain a good answer. That’s because there probably isn’t any.