In fight over Wyoming’s wild horses, advocates see test of public land stewardship

By Arno Rosenfeld as published on the Casper Star Tribune

“The Rock Springs (Welfare) Grazing Association did not respond to a request for comment…”

A wild horse family in Adobe Town

A wild horse family in Adobe Town ~ photo by Carol Walker of Wild Horse Freedom Federation

A federal court battle over the fate of wild horses in Wyoming’s high desert could have implications for the management of public lands across the American West.

Wild horse advocates claim the Bureau of Land Management has ceded control over public lands near Rock Springs to local landowners. The federal agency claims it is only trying to fulfill its legal obligations to keep the horses off private grazing areas.

Underpinning the dispute are lofty notions of the American mustang as a symbol of the country’s pioneer spirit facing off against ranchers who claim wild horses are feral nuisances, an invasive species competing with productive livestock for precious resources in the arid west.

The debate centers on about 2 million acres of “checkerboard” land just east of Rock Springs. Created in 1862 as part of negotiations with the Union Pacific Railroad, odd-numbered blocks of public land were sold while the even-numbered blocks were retained by the federal government.

Today, the Rock Springs Grazing Association owns the private blocks and uses the entire checkerboard area to graze sheep. With wild horses on grazing association land exceeding the numbers set by federal policies, the group sued the BLM in 2011, demanding that the bureau remove all horses from private land. The two parties settled in 2013, and the BLM recently announced plans to remove all horses from the private and public lands within the checkerboard area. The first roundup occurred in 2014.

“It’s an impossible task for BLM to remove just from the private lands within the checkerboard area,” the bureau’s Rock Springs field manager Kimberlee Foster said. “It’s not fenced, the horses move freely … they might be on private land and half an hour later they’re on public land.”

But under the Wild Horses and Burros Act of 1971, Congress stipulated distinct procedures for removing horses from private and public lands. The BLM argued — and a U.S. District Court agreed — that the bureau could treat the entire checkerboard area as private land for the purpose of removing horses.

A group of wild horse advocates is now appealing that decision and argued before the 10th Circuit Court of Appeals in Denver this week.

Bill Eubanks, an attorney representing the horse groups, said that while he understands the challenge of managing the combination of public and private lands in the checkerboard, the BLM is still obligated to protect wild horses on public lands.

“The one thing you cannot do as an agency charged with implementing … the Wild Horses Act is to throw up your hands and say we’re just going to violate the statutes,” Eubanks said.

If the BLM is allowed to treat public land interspersed with private holdings under the laws governing private land, there could be repercussions for federal land management across the country, Eubanks said. He said there were 20 checkerboard parcels of land across the country with wild horses; many other public lands with wild horses are adjacent to or surrounded by private land.

“I’ve honestly never seen an agency treat public land as private,” Eubanks said. “If BLM can do this here, it’s a practice and approach that can be used everywhere across the country.”

Foster, the BLM field director, disputes the notion that the Wyoming fight will have any broader application. The Rock Springs grazers initially allowed some wild horses on their land before revoking their consent — a situation Foster called “extremely rare.”

Eubanks said that the bureau’s obligation under the Wild Horses Act should never have been affected by an agreement — or lack thereof — with private landowners and that Foster’s contention that the Rock Springs situation is unique “is from an objective standpoint completely false.”

The Rock Springs Grazing Association did not respond to a request for comment. However, attorneys for the association argued in a court brief that the BLM should be allowed no discretion in removing all horses from the checkerboard area.

“[T]he only way any wild horses can be maintained on the Checkerboard is with RSGA’s consent,” the brief argues.

The case is wrapped in acronyms, lengthy environmental reviews and legal precedents. The Rock Springs case centers on three “herd management areas” known as Divide Basin, Salt Wells Creek and Adobe Town. About half the area of those three pieces of land is taken up by the checkerboard…(CONTINUED)

http://trib.com/news/state-and-regional/in-fight-over-wyoming-s-wild-horses-advocates-see-test/article_ee791e48-d8db-5cdf-ad6f-a61b051d24c1.html

7 comments on “In fight over Wyoming’s wild horses, advocates see test of public land stewardship

  1. RSGA evidently thinks federal and state laws should be ignored as they are inconvenient to around 22 private, for-profit sheep and cattle owners. If their argument is as it seems, that is impractical to fence their private property, this also ignores that Wyoming is a “fence out” state, which means any private property owner is obliged to fence their own place, at their own expense, to keep wildlife or other folks’ livestock out. That this is expensive has never been a reason to excuse other citizens from this requirement.

    Twenty two people should not have any legal or ethical right to claim exclusive use of a million acres of public lands. Their grazing permits on the public lands are a privilege, not a right, which by law can be revoked by the BLM. Why is the endless effort made to eradicate the public’s wildlife on the public’s land, rather than enforce existing, well-established laws?

    I agree with Mr. Eubanks, bending over here would indeed set an alarming precedent, especially as the Sagebrush Rebellion is still smoldering. The public has much to lose here, and very little to gain, not even a free piece of mutton in every pot.

    One is forced to imagine the Wyoming state logo would have to be modified to show a cowboy riding a leaping sheep.

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  2. 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

    In April 2013, the U.S. District Court in Wyoming approved a Consent Decree to settle a lawsuit by the Rock Springs Grazing Association (RSGA) against the BLM and the Department of Interior seeking the removal of all wild horses from the Wyoming checkerboard lands. In their opening brief the RSGA wrote: “The Deputy Assistant Secretary advised the RSGA that the DOI policies and priorities made it difficult to offer a solution short of litigation.” It then becomes clearly visible that the proposed and recent past wild horse removals have been and will be completely politically and a monetarily motivated decision.

    This is not in keeping with the law or the wishes of the American people who own the land and who own the wild horses – it is completely biased and favored toward a special interest group – in this case the RSGA. This in itself is illegal and often called “Regulatory Capture”. Regulatory capture is a form of political corruption that occurs when a regulatory agency, created to act in the public interest, instead advances the commercial or special concerns of interest groups that dominate the industry or sector it is charged with regulating. Regulatory capture is a form of government failure; it creates an opening for firms to behave in ways injurious to the public (e.g., producing negative externalities). The agencies are called “captured agencies” and BLM is without a doubt a “captured agency”.

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  3. This can’t be repeated often enough

    DECLARATION OF LLOYD EISENHAUER

    Katherine A. Meyer
    Meyer Glitzenstein & Crystal
    1601 Connecticut Ave., N.W.
    Suite 700
    Washington, D.C. 20009
    (202) 588-5206
    Timothy Kingston
    408 West 23rd Street, Suite 1
    Cheyenne, WY 82001-3519
    (WY Bar No. 6-2720)
    (307) 638-8885

    Attorneys for Defendant-Intervenors
    IN THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF WYOMING
    Rock Springs Grazing Association, Case No. 2:11-cv-00263-NDF
    Plaintiff,
    v.
    Ken Salazar, et al.,
    Defendants,

    DECLARATION OF LLOYD EISENHAUER
    I, Lloyd Eisenhauer, declare as follows:

    1. I live in Cheyenne, Wyoming. I am a former Bureau of Land Management
    (“BLM”) official with extensive experience in the Rawlins and Rock Springs Districts in Wyoming and intimate familiarity with the public lands under BLM management in those areas. I have reviewed the consent decree proposed by BLM and the Rock Springs Grazing Association (“RSGA”) in this case and provide this declaration based on my longstanding knowledge of, and management of, wild horses and livestock grazing in the Rock Springs and Rawlins Districts.

    2. I grew up in Pine Bluffs, Wyoming with a livestock and farming background, served in the Marines for four years, and then owned a livestock business from 1952-1958. I enrolled in college in 1958, studying range management. From 1960-1961, BLM hired me to assist with collecting field data for vegetation assessments and carrying capacity surveys related to livestock and wild horses. These surveys were conducted in the Lander, Kemmerer, and Rawlins Districts. When I graduated in 1962, BLM hired me full-time to serve in the Rawlins District in Wyoming, where most of my work focused on grazing management involving sheep, cattle, and wild horses. From 1968-1972, I was Area Manager of the Baggs-Great Divide Resource Area in the Rawlins District. In 1971, the Wild Free-Roaming Horses and Burros Act was enacted, and in the spring of 1972, on behalf of BLM, I conducted the first aerial survey of wild horses in Wyoming, recording the number of horses and designating the Herd Management Areas (“HMAs”) for the Rawlins District. After a stint as an Area Manager with BLM’s Albuquerque, New Mexico office, in 1975 I took over as the Chief of Planning and Environmental Analysis in BLM’s Rock Springs District for three years. I was the lead on all planning and environmental assessments. During that time, I also served as the Acting Area Manager of the Salt Wells Resource Area, which is located in the Rock Springs District. In 1979, BLM transferred me to its Denver Service Center to serve as the Team Leader in creating the agency’s automated process for data collection. I received an excellence of service award from the Secretary of the Interior commending me for my work as a Team Leader. In 1982, I became the Head of Automation in BLM’s Cheyenne office, where I managed and implemented the data collection and processing of various systems related to BLM programs. I retired from BLM in 1986, and have stayed very involved in the issue of wild horse and livestock management on BLM lands in Wyoming, and have written articles about the issue in local and other newspaper outlets. I have won various journalistic awards, including a Presidential award, for my coverage of conservation districts in Wyoming. Along with a partner, I operated a tour business (called Backcountry Tours) for six years, taking various groups into wild places in Wyoming – without a doubt wild horses were the most popular thing to see on a tour, in large part due to their cultural and historical value. I also served six years on the governor’s non-point source water quality task force.

    3. Based on my longstanding knowledge of wild horse and livestock management in the Rawlins and Rock Springs Districts, and in the Wyoming Checkerboard in particular, I am very concerned about BLM’s agreement with RSGA, embodied in the proposed Consent Decree they have filed in this case, under which BLM would remove all wild horses located on RSGA’s private lands on the Wyoming Checkerboard.

    4. The Checkerboard is governed by an exchange of use agreement between the federal government and private parties such as RSGA. However, due to state laws, property lines, and intermingled lands, it is impossible to fence the lands of the Wyoming Checkerboard, which means that both the wild horses and the livestock that graze there roam freely between public and private lands on the Checkerboard without any physical barriers. For this reason, it is illogical for BLM to commit to removing wild horses that are on the “private” lands RSGA owns or leases because those same horses are likely to be on public BLM lands (for example, the Salt Wells, Adobe Town, Great Divide, and White Mountains HMAs) earlier in that same day or later that same evening. Essentially, in contrast to other areas of the country where wild horses still exist, on the Wyoming Checkerborad there is no way to distinguish between horses on “private” lands and those on public lands, and therefore it would be unprecedented, and indeed impossible for BLM to contend that it is removing all horses on RSGA’s “private” lands at any given time of the year, month, or day, considering that those horses would only be on the strictly “private” lands very temporarily and intermittently on any particular day .

    5. Another major concern with BLM’s agreement to remove all horses from the private lands of the Wyoming Checkerboard is that BLM is undermining the laws that apply to the Checkerboard, and wild horse management in general, which I implemented during my time as a BLM official. Traditionally, BLM officials (myself included) have understood that, pursuant to the Wild Horse Act, wild horses have a right to use BLM lands, so long as their population numbers do not cause unacceptable damage to vegetation or other resources. In stark contrast, however, livestock (sheep and cattle) have no similar right to use BLM lands; rather, livestock owners may be granted the privilege of using BLM lands for livestock grazing pursuant to a grazing permit that is granted by BLM under the Taylor Grazing Act, but that privilege can be revoked, modified, or amended by BLM for various reasons, including for damage to vegetation or other resources caused by livestock, or due to sparse forage available to sustain livestock after wild horses are accounted for. BLM’s tentative agreement here does the opposite and instead prioritizes livestock over wild horses, by proposing to remove hundreds of wild horses from the Wyoming Checkerboard without reducing livestock numbers – which, in my view, is contrary to the laws governing BLM’s actions as those mandates were explained to me and administered during the decades that I was a BLM official.

    6. While I do not agree with every management action taken by BLM over the years in the Rock Springs District, I can attest – based on my longstanding employment with BLM and my active monitoring of the agency’s activities during retirement – that BLM has generally proven capable of removing wild horses in the Rock Springs District, including by responding to emergency situations when needed and removing horses when necessary due to resource damage.

    7. Considering that wild horses exhibit different foraging patterns and movement patterns than sheep and cattle, and also than big game such as antelope and elk, no sound biological basis exists for permanently removing wild horses from the Wyoming Checkerboard at this time. In particular, wild horses tend to hang out in the uplands at a greater distance from water sources until they come to briefly drink water every day or two, whereas livestock congregate near water sources and riparian habitat causing concentrated damage to vegetation and soil. For this reason, the impacts of wild horses are far less noticeable on the Checkerboard than impacts from livestock.

    8. In addition, because livestock tend to eat somewhat different forage than wild horses (horses tend to eat coarser vegetation such as Canadian wild rye and other bunch grasses, whereas cattle and sheep mostly eat softer grasses), there is no justification to remove wild horses on the basis that insufficient forage exists to support the current population of wild horses. Also, because cattle and sheep have no front teeth on the front part of their upper jaws, they tend to pull and tear grasses or other forage out by the root causing some long-term damage to vegetation, whereas wild horses, which have front teeth on both their front upper and lower jaws, act more like a lawnmower and just clip the grass or forage (leaving the root uninjured), allowing the vegetation to quickly grow back. These differences are extremely significant because if there were a need to reduce the use of these BLM lands by animals to preserve these public lands, it might be cattle and sheep – not wild horses – that should be reduced to gain the most benefit for the lands, and which is why BLM, during my time as an agency official, focused on reducing livestock grazing.

    9. BLM’s agreement with RSGA states that RSGA’s conservation plan limited livestock grazing, primarily by sheep, to the winter months to provide sufficient winter forage. This is a good example of “multiple use” management, since wild horses and sheep have very little competition for the forage they consume and the seasons during which they use parts of the Checkerboard. During winter, sheep use the high deserts and horses utilize the uplands and breaks (i.e., different locations) for forage and protection. During the summer, when sheep are not present, wild horses use various landscapes on the Checkerboard. This multiple use should continue for the benefit of the livestock, the wild horses, and the public and private lands involved.

    10. I am also very concerned about BLM’s agreement with RSGA to permanently zero out the Salt Wells HMA and the Divide Basin HMA, leaving no wild horses in those areas that have long contained wild horses. I have been to fifteen of the sixteen HMAs in Wyoming, and to my knowledge none has ever been zeroed out by BLM. It is my view, based on everything I know about these areas and the way these public lands are used by wild horses and livestock, that BLM has no biological or ecological basis for zeroing out a herd of wild horses in an HMA that existed at the time the wild horse statute was passed in 1971, as is the case with both the Salt Wells and Divide Basin HMAs. And, again, because the wild horses have a statutory right to be there, whereas livestock only have a privilege that can be revoked at any time by BLM, there also is no authority or precedent, to my knowledge, for the agency to zero out these two longstanding wild horse herds simply to appease private livestock grazers.

    11. The zeroing out of wild horses in the Salt Wells and Divide Basin HMAs is also concerning because it would mean that, in those two longstanding HMAs, there would no longer be the “multiple use” of these public lands as required by both the Wild Horse Act and the Federal Land Policy and Management Act. Currently, while there are other uses of this public land, such as by wildlife, hunters, and recreational users, the two primary uses in those HMAs are by wild horses and livestock. If BLM proceeds with its agreement with RSGA to zero out wild horses in those HMAs, the only major use remaining would be livestock use, meaning that there would be no multiple use of those BLM lands. Not only will that potentially undermine the laws that BLM officials must implement here, but it has practical adverse effects on the resources – multiple use is very beneficial for the environment, and particularly for sensitive vegetation, because different users (e.g., livestock, wild horses) use the lands and vegetation in different ways. When that is eliminated, the resources are subjected to an unnatural use of the lands which can cause severe long-term damage to the vegetation. As a result, zeroing out these herds would likely bedevastating for the vegetation in these two HMAs, because livestock would be by far the predominant use in this area.

    12. Turning the White Mountain HMA into a non-reproducing herd, as the agreement between BLM and RSGA proposes to do, is also a farce, and violates the meaning of a wild and free-roaming animal. This is essentially a slow-motion zeroing out of this HMA, and is inconsistent with any wild horse management approach I am familiar with that BLM has implemented on public lands.
    Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct.

    Lloyd Eisenhauer

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  4. SPORTS FOLKS ARE FACING A SIMILAR CHALLENGE IN WYOMING:

    http://trib.com/lifestyles/recreation/sportsmen-oppose-wyoming-land-trade-that-could-block-thousands-of/article_9cb570e4-e25b-5208-a706-211222e8f936.html

    (copied below since after a few views one has to subscribe to this paper to read anything)

    High in the Laramie Range in southeast Wyoming lies a Western patchwork of land embroiled in controversy. Ownership in the area looks like a quilt, with pieces run by the federal government, others by the state of Wyoming and yet more owned by a Casper businessman.

    The businessman wants the state to trade its land to him for another parcel somewhere else, saying it will make it easier to manage his ranch. Sportsmen, however, argue losing the state parcel would lock them out of more than 4,000 acres of public land used for hunting and recreation.

    The fate of the parcels rest in the hands of the State Board of Land Commissioners, which will decide on Oct. 6.

    Wyoming’s top five elected officials, who make up the board, consider land trades every year across the state. Many are not controversial. They simplify ownership or better suit the needs of the state.

    Others, like the Laramie Range trade, attract dissension.

    “That is the No. 1 spot. It’s the best elk hunting experience I’ve had on public land in Wyoming,” said Guy Litt, a Laramie hunter. “The layout of the proposed exchange would isolate so much BLM and Forest Service land so it would no longer be accessible by foot.”

    Litt is one of hundreds of hunters and sportsmen opposed to the land trade. A petition by Backcountry Hunters and Anglers, a national sportsmen’s group with local chapters, has received more than 1,500 signatures urging the lands board to vote no.

    Why is the public land so appealing? In part because it is rugged and difficult to access, filled with boulders, steep ravines and pine- and juniper-covered hillsides, said Litt and Jeff Muratore, a Casper hunter and board member of the Natrona County chapter of Backcountry Hunters and Anglers.

    It takes a GPS and hard work to wind back into the thousands of acres run by the Forest Service and Bureau of Land Management, but it’s worth it, they say. It is a quality hunt area with ideal elk and mule deer habitat.

    “That’s the area I seek out,” Litt said. “I like getting away from crowds and roads and have a more wild experience.”

    But that experience, he says, would be lost if the land trade proceeds.

    In Wyoming, people cannot cross private property to access public land. If a federal or state parcel is surrounded by private land, no matter how big it is, it is closed to the public.

    Richard Bonander acknowledges his proposed trade would block off public land but says the path to the public land is so jagged that it is hardly usable now without crossing his ranch.

    “Most of the land is steep, rough ground,” he said. “The significant portion of it is inaccessible.”

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    The Casper businessman owns Inter-Mountain Pipe and Threading Company and bought the Laramie Range ranch three years ago in part for the hunting, fishing and other recreation. He realized shortly after the purchase how the convoluted land ownership setup made building trails, fencing and irrigation ditches difficult.

    He first approached the state asking to trade parcels two years ago. The state didn’t want his original trade proposal but said it would consider swapping him for land in the Black Hills. If Bonander would buy a similarly valued parcel in the Black Hills, in a place called Moskee, the state would consider a trade.

    “The board has been interested in the Moskee area for probably over a decade,” said Jason Crowder, assistant director for the Trust Land Management Division with the Office of State Lands. “They initially looked at it for a straight acquisition but didn’t have the funding.”

    The two parcels appraise for about the same amount. The Moskee land, measuring 295 acres, is worth about $1,032,500. The Laramie Range land, measuring a little over 1,000 acres, is worth about $1,034,000, according to a detailed analysis of the land trade commissioned by the Office of State Lands.

    While the parcels are worth about the same now, the state believes it could ultimately make more money from owning the Moskee land because of timber sales and potential for outfitting leases or even communication towers, Crowder said.

    And profit for the state is the top priority, he added.

    The state owns land to make money for schools, mostly through leasing parcels for grazing or mineral development. To decide on a trade, the Board of Land Commissioners considers three criteria: revenue-generating potential, appreciation potential and manageability and whether the swap would fill a community need.

    Crowder said community need, which would include aspects such as hunter access, is considered a third priority.

    Divisions in Wyoming government are split on the land trade. According to documents submitted as part of the land analysis, the Wyoming State Forestry Division supports the land trade as a way to own the Moskee land, while the Wyoming Game and Fish Department is critical of the swap.

    The land trade would “reduce overall hunting opportunity with impacts to sportsmen and wildlife management,” reads a letter written by Game and Fish to the Office of State Lands.

    Bonander said he would consider a type of easement to still allow the public to access those thousands of acres if the land deal is approved, but nothing has been formalized.

    The Office of State Lands and Investments will hold a public meeting Sept. 26 in Laramie to discuss the potential trade. The department’s director, Bridget Hill, will wait until after the meeting to make a recommendation, Crowder said.

    “Nothing has been finalized,” he said. “We want to see if we can mitigate some of the sportsmen’s concerns.”

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