Insider’s Look: Wyoming Checkerboard Wild Horse Case

By Carol Walker ~ Director of Field Documentation for Wild Horse Freedom Federation

img_0006On Monday I was in Denver at the Byron White Courthouse for the 10th Circuit Court of Appeals in two cases for wild horses. I am a plaintiff in both these cases, and had waited an especially long time for this day, as our lawsuit was originally filed in District Court in Wyoming in September, 2014.

The old courthouse is beautiful, full of character and I enjoy looking around while waiting for our first Oral Argument. The judges were: Judge Scott M. Matheson Jr., Chief Judge Mary Beck Briscoe and Senior Judge Monroe G. McKay.

Our attorneys were Meyer Glitzenstein & Eubanks LLP attorneys Bill Eubanks, Kathy Meyer and Nick Lawton.

Each side was only allowed 15 minutes, which could go a bit longer depending upon questions from the judges. Bill Eubanks argued for our side in both appeals. I was very impressed by his presentation and answers to questions, which were very thorough and methodical in laying out the important points. One issue that came up is that the BLM is wanting the Checkerboard case dismissed on grounds of mootness. Yet it is far from moot – on Friday the Decision Record was published by the BLM for the Checkerboard II Roundup, in which the BLM is again treating public lands as if they are private:  https://eplanning.blm.gov/epl-front-office/projects/nepa/59563/81678/95899/3c.DR_Checkerboard_Removal_2016.pdf

These are the two appeals:

American Wild Horse Preservation Campaign, The Cloud Foundation, Return to Freedom, Carol Walker and Kimerlee Curyl Appellants v. Jewell, et al.

In the Checkerboard area in Wyoming, with alternating private and public lands on over 2 million acres we are fighting to keep our wild horse son our public lands, and to keep the BLM and private landowners treating public lands as if they are private. The consequences of this decision will have an impact on how our wild horses are treated in every Herd Management Area that includes private lands – not just other Checkerboard Areas like in Utah and Nevada.

WY State of Wyoming, Appellant v. United States Department of the Interior DOI, et al.; Intervenors American Wild Horse Preservation Campaign, The Cloud Foundation, Return to Freedom, Carol Walker and Kimerlee Curyl

In this appeal, the state of Wyoming sued the BLM to force them to remove wild horses from 7 herd management areas that were estimated to have more wild horses than the Appropriate Management Level. Here we a fighting to keep management of wild horses in Federal hands, where it belongs, rather than turning the management of our wild horses over to states who would as soon remove them all.

It was fascinating to me to listen to the back and forth between the attorneys and the judges. It was hard for me to tell how our side was doing, but I am hoping for the best. I was proud to be there representing our wild horses. We should hear the decision for both appeals in the next several weeks.

Related Posts:

Upcoming Checkerboard II Roundup

http://www.wildhoofbeats.com/news/wild-horses-federal-court-rules-blm-violated-law-in-checkerboard-roundup

http://www.wildhoofbeats.com/blog/wild-horses-stop-the-blms-illegal-plans-for-the-checkerboard-roundup-ii-comment-by-friday-april-22

http://www.wildhoofbeats.com/blog/please-comment-on-the-blms-upcoming-checkerboard-ii-wild-horse-wipeout-plan

http://www.wildhoofbeats.com/news/wild-horses-court-grants-wild-horse-advocates-right-to-intervene-in-state-of-wyoming-anti-mustang-lawsuit

Wyoming v. BLM and Intervention

http://www.wildhoofbeats.com/news/wild-horse-advocates-blast-governor-mead-for-suit-against-feds-over-wild-horses

http://www.wildhoofbeats.com/blog/wild-horses-wyomings-governor-seeks-complete-annihilation-of-his-states-wild-horses

Checkerboard Roundup and Lawsuit

http://www.wildhoofbeats.com/news/wild-horses-court-grants-emergency-inunction-to-delay-wyoming-wild-horse-roundup

http://www.wildhoofbeats.com/news/wild-horses-wyoming-wild-horse-roundup-delayed-as-advocates-appeal-to-tenth-circuit

http://www.wildhoofbeats.com/news/wild-horses-court-denies-emergency-motion-allows-wyoming-wild-horse-roundup-that-turns-public-lands-over-to-private-livestock-interests

http://www.wildhoofbeats.com/news/wild-horses-federal-court-rules-blm-violated-law-in-checkerboard-roundup

http://www.wildhoofbeats.com/blog/wild-horses-fighting-to-save-wyomings-wild-horses-is-personal

15 comments on “Insider’s Look: Wyoming Checkerboard Wild Horse Case

  1. If THEY CONTINUE ROUND UPS. I propse that for EVERY horse TAKEN.10 acres of free relocated donated land by the STATE TAKEN FROM! That seems FAIR. Granted the LAND MUST HAVE CLEAN WATER CREEKS LAKE’S ETC.& foliage to provide nourishment! Now DOESN’T that seem little MORE FAIR THAN THE CONCENTRATION CAMP’S THEY ARE BEING TAKEN TO NOW??? EVEN THOUGH THRY HELP OUR LAND NOT HARM IT IN ANYWAY!!! OR THEY JUST GONA KEEP LYING2 KEEP KILLING OFF OUR WILD HORSES& EVENTUALLY OUR LAND WILL BE BARRON! Thanx BLM

    Like

  2. The earlier rulings made by Judge Freudenthal indicated reliance on Mountain States Legal Foundation v. Andrus (No. C79-275K D. Wyo. April 21, 1981) in interpreting the wild horse and burro act (WHA). She asserted in 2015 the 1981 court “made no distinction between the public land and private land sections of the Checkerboard.” However, this distinction was never in question, only the grazing habits of wildlife and livestock in these shared unfenced areas. Judge Fruedenthal incorrectly interpreted Section 4 of the WHA, which only concerns removing wild horses from PRIVATE LANDS on request by the land owners, and does not mention any presumptive right to remove wild horses from PUBLIC LANDS. Further, however inconvenient, Wyoming was and remains a “fence out” state, which means private property owners are obliged to fence out wildlife they do not wish to roam their lands. The Checkerboard has been de facto exempted from this law which everyone else must obey, and the owners took possession knowing this was the law.
    Further, Judge Freudenthal in her ruling declared MSLF v Andrus “set the stage” for all future wild horse management conflicts in the Checkerboard though this case makes no specific reference to either section 3 or 4 of the WHA, only to the Act itself.
    MSLF v. Andrus also defined “excess” animals as those exceeding the numbers present in the area in 1971 when the WHA was passed. Complete removal is not consistent with the legal protections enacted in 1971.
    MSLF v. Hodel in 1986 established the BLM is NOT REQUIRED to prevent wild horses from straying onto private lands since Congress “clearly anticipated: such a possibility and provided a mechanism for removing only those straying onto private lands and leading to a complaint; nothing was or is indicated that allows removals from public lands in response to a private complaint. This case also established that the Rock Springs Grazing Assn. had not been deprived of “any right to exclude” wild horses and burros (see Kaiser Aetna v. United States, 444 U.S. 164, 179-80, 100 S.Ct. 383, 392-93, 62 L.Ed.2d.332 (1979).
    Her unsupported presumption is adverse to the public interest and is an insufficient legal foundation on which to evict the publics’ wild horses from their legal public lands.
    I hope some of these arguments were made by legal on our behalf!

    Like

    • The issue with MSLF v. Andrus is that it doesn’t take into account the fact that the number of horses and burros on the range at the time of the passage of the 1971 Act was a number of concern as these animals were rapidly disappearing. The words “excess” and “overpopulation” are relative since privately owned cattle and other species outnumber wild horses and burros tremendously. How do we “fix the glitch” with this arbitrary number?

      Like

      • Agreed, my point was simply that there is no basis to argue there were NO wild horses there in 1971, as emptying the Checkerboard area HMAs is intended to do. Without knowing with any degree of accuracy what numbers lived and migrated through there in 1971, determining anything as “excess” is highly problematic. The AMLs since calculated have been calculated by the BLM without reference to historic populations of either wild horses or livestock and can’t therefore be credible enough to justify emptying entire HMAs or managing for non-reproducing herds, as is evidently intended for the White Mountain HMA.

        Like

  3. Isn’t it sad that so much time and money is spent like this. Greedy people!! Shameful people!! Well, today is the day people because many of US will be in front of the AG Building and on Capital Hill to defend Americas horses both domestic and wild. And our poor little burros. But the Horse Warriors will be there with our signs and our Voices will be there!! Watch your news and see you later RT as fight for those that cannot.speak!! Go Horse Warriors and may the Force of the Horse be with!!!

    Like

    • Interestingly, I just overheard a radio interview which mentioned Wyoming is the only state which taxes wind energy production, and one of the proponents of this argued that this industry should pay for what it is taking away from future generations forever… the view shed! This never seems to apply to the oil and gas pads which have sprung up all over southern Wyoming like dandelions, or the stark reality of the Rock Springs Grazing Assn.’s never-ending quest to rid Wyoming of al its public lands and wildlife, including wild horses.

      Like

  4. I have stated this in my public comment for this and previous NEPA documents but I have never seen any response from BLM about this. If it is truly appropriate for this situation, then BLM has ignored NEPA in addition to violating the Supremacy Clause of the United States Constitution.

    Federal law cannot be violated under a consent decree. Although the BLM is positioning this devastating plan as the implementation of a court-approved settlement of a lawsuit filed by the Rock Springs Grazing Association (RSGA), a court settlement cannot trump federal law. The Supremacy Clause of the United States Constitution (Article VI, Clause 2) establishes that the Constitution, federal laws made pursuant to it, and treaties made under its authority, constitute the supreme law of the land. The constitutional principle derived from the Supremacy Clause is Federal preemption. Preemption applies regardless of whether the conflicting laws come from legislatures, courts, administrative agencies, or constitutions.
    Cornell University Law School. “Supremacy Clause”. law.cornell.edu

    Like

  5. BLM TO GATHER SAND WASH WILD HORSES IN OCTOBER

    Contacts: David Boyd, Public Affairs Specialist, (970) 876-9008

    Release Date: 09/21/16
    BLM to gather Sand Wash wild horses in October

    CRAIG, Colo. The Bureau of Land Management will begin gathering up to 50 wild horses from the Sand Wash Herd Management Area in October under a decision signed today.

    Beginning Oct. 21, the BLM will bait-trap wild horses in northwestern Colorado’s Sand Wash Basin in order to administer fertility control treatments and remove up to 50 young horses, which will be placed in the Great Escape Mustang Sanctuary (GEMS) training and adoption program.

    The BLM manages the area for up to 362 wild horses, but the current population exceeds 600, a number that poses a serious risk to the area’s ecological balance. Treating mares and removing some young horses should help check the growth of the Sand Wash Herd.

    Wild horses will be attracted to corrals using bait over a series of days or weeks. While confined in a corral, BLM will work with its partner group the Sand Wash Advocacy Team (SWAT) to identify horses to be placed into the adoption program as well as mares that would be treated with a contraceptive called PZP, which delays fertilization, and released back to the range.

    “The BLM is committed to maintaining a healthy wild horse population in Sand Wash over the long-term,” said BLM Little Snake Field Manager Bruce Sillitoe. “This small gather and fertility treatment will help keep their habitat healthy, which is key to keeping the wild horses healthy.”

    The BLM works closely with its partner groups GEMS and SWAT to manage the Sand Wash Herd Management Area in northwestern Colorado.

    The decision and associated environmental assessment are available at http://1.usa.gov/23gJg6W

    The BLM manages more than 245 million acres of public land, the most of any Federal agency. This land
    http://www.blm.gov/co/st/en/BLM_Information/newsroom/2016/blm_to_gather_sand.html

    Like

Care to make a comment?

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s