Eyewitness Report: Defending Wild Horses at the Tenth Circuit Court of Appeals

From left - AWHPC Executive Director Suzanne Roy; Meyer Glitzenstein and Eubanks attorneys Bill Eubanks, Kathy Meyer and Nick Lawton; Ginger Kathrens, Executive Director of The Cloud Foundation.

On September 19, 2016, William Eubanks, of Meyer Glitzenstein and Eubanks, did an outstanding job of defending Wyoming’s wild horses before the Tenth Circuit Court of Appeals in Denver.

Representing the American Wild Horse Preservation Campaign, The Cloud Foundation, Return to Freedom and photographers Carol Walker and Kimerlee Curyl, Eubanks argued back-to-back cases before a three-judge panel. Decisions in both cases are not expected for several weeks, or more.

Case #1: Wyoming Checkerboard (AWHPC, et. al. vs. BLM)

This is the appeal of a lawsuit filed by AWHPC, et. al. in 2014 over the BLM’s roundup of 1,260 wild horses from the Wyoming Checkerboard of the Adobe Town, Salt Wells Creek and Great Divide Basin Herd Management Areas (HMAs). The action brought the wild horse populations in two of the three HMAs below the “Appropriate” Management Levels (AMLs) established under the governing Resource Management Plans for the area.

The Wyoming Checkerboard is a more than 2-million-acre area of land, alternating between public and private parcels in southern Wyoming. More than half the land in the checkerboard is public land managed by the BLM. The private land parcels are owned by the Rock Springs Grazing Association (RSGA) are leased by the RSGA from Anadarko Petroleum for livestock grazing.

At issue in this case is whether the BLM can use the RSGA’s request to remove wild horses from private land parcels as an excuse, or justification, to also remove (and essentially eliminate) wild horses from nearby or adjacent public lands as well.

The law on this point is clear. Section 4 of the Wild Free Roaming Horses and Burros Act requires the BLM to remove stray wild horses from private lands upon request of a landowner. Section 3 of the Act, however, guides the removal of wild horses from the public lands.Section 3 defines a two step process for removing wild horses from public lands: First the BLM must determine that an overpopulation of horses exists on the public land in question, and then it must determine that the horses must be removed in order to restore the Thriving Natural Ecological Balance of the area. Despite the fact that the BLM failed to comply with Section 3, U.S. District Court Judge Nancy Freudenthal allowed the BLM’s actions to stand.

During oral arguments this morning, Eubanks argued to overturn the lower court decision. He stressed the precedent-setting nature of the BLM’s actions in the Wyoming Checkerboard. He noted that there are 179 BLM wild horse and burro Herd Management Areas, and every one either includes or abuts private land. Therefore, the BLM’s actions that allow private landowners to dictate the removal of wild horses from public lands have far-reaching implications for wild horses across the entire West. Citing a Ninth Circuit Court of Appeals case, Eubanks stated that BLM “does not have the ability to remove wild horses from the public lands to prevent them from straying onto the private lands as well.” 

Judge Mary Beth Briscoe asked Eubanks about the viability of the BLM’s argument that it was not feasible to remove wild horses from the private lands in the Checkerboard without also removing them from the public lands. Eubanks answered, “Treating millions of acres of public land as private under a statute that is intended to protect wild horses on public land is never a proper construction of the statutes.”

Later, in questioning an attorney for the BLM, Judge Scott Matheson folowed up on  Eubanks’ arguments, asking “How can BLM ignore Section 3 [of the Wild Horse Act] on over 2 million acres of land, over half of which is public?” “They are treating the public lands like private lands,” he later observed.

The government attorney acknowledged that this was a change in BLM policy.

Eric Peterson of the Department of Justice closed the government’s arguments with what he called a “practical consideration” about protecting private landowner rights. Eubanks provided a succinct rebuttal, stating that: 1) federally protected animals cannot to be removed from the public lands unless agency follows the law for making excess determinations, and 2) the Resource Management Plans that establish population levels for HMAs are binding, and unless or until they are revised, apply.

Case 2. State of Wyoming vs. BLM

The State of Wyoming sued the BLM seeking more wild horse roundups. The State is claiming that the “Appropriate” Management Levels (AMLs) established by BLM are legally binding and that whenever wild horse populations exceed these AMLs, the BLM is legally mandated to remove “excess” horses. The lower court tossed out the State of Wyoming’s lawsuit, and the State appealed.

It was refreshing, and rather ironic, to hear attorneys for the Department of Justice (DOJ) making the arguments that we always make with regard to removals and “excess” horses. The DOJ attorney stated correctly that in order to remove wild horses from the public lands, the BLM must make a two-step finding, as noted above. First the agency must determine that an overpopulation of wild horses exists, and then it must find that wild horses need to be removed to restore the Thriving Natural Ecological Balance in the area. Just because a wild horse population exceeds the AML does not mean that “excess" horses are present, the DOJ attorney argued. He further stated that even if BLM determines that an overpopulation of wild horses exists, it is not mandated to remove horses. Rather it has wide discretion to deal with overpopulation in a variety of ways, including fertility control, sex ratio adjustment, sterilization and natural controls (predation). Although the DOJ did not mention it, the BLM also has discretion to deal with horse overpopulation by reducing livestock grazing, pursuant to 43 CFR 4710.5

The judges did not seem to accept the State of Wyoming’s arguments that 20-year old AMLs were set in stone and legally binding.  Judge Briscoe noted that significant ecological changes can occur over 20 years, asking, “The BLM has no discretion?”

In response the State of Wyoming's attorney wrongly claimed that BLM re-evaluates AMLs every time the agency does an Environmental Assessment for a wild horse roundup. In reality, the BLM regularly states that the re-evaluation of AMLs is “outside the scope” of roundup EAs.

Judge Briscoe replied that “relying on AML is not sufficient. Just because AML was set long ago…the Act explicitly requires the BLM to justify its removal actions on ALL CURRENT INFORMATION, including overpopulation. Even where the agency makes an overpopulation determination, it must also determine that removal is necessary to achieve the Thriving Natural Ecological Balance.”

Eubanks followed the DOJ attorney and reaffirmed that removal decisions are not tied to the AML, they are tied to the Thriving Natural Ecological Balance. "Congress did not say that horses above the AML should be removed", he said.

The State of Wyoming rebuttal was weak and did not adequately counter the salient legal arguments made by Eubanks and the DOJ attorney.

Decisions on both cases are expected in several weeks.