By Andrew Cohen, The Atlantic
Say you were sitting in a law school classroom taking an exam, or you were on a panel of experts talking about ethics in government, or you were the Inspector General of the Interior Department or a member of Congress, or you were just a plain old citizen who still believes that public officials ought to be honest brokers in conflicts between competing interests -- and the following hypothetical were posed to you. What would you think? What would you say? What would you do?
In 2010, Jane Doe was a deputy assistant secretary at the Department of the Interior. With strong ties to the oil and gas industry, over two separate stints at Interior, she was publicly indifferent and sometimes hostile toward the nation's wild horse herds, which under federal law are supposed to be protected and managed by the Bureau of Land Management. For her positions, she was sharply criticized by wild-horse advocates.
One day that year, some ranchers and livestock operators met with Jane Doe to discuss their frustration about the number of wild horses living and roaming in and around the "checkerboard" area, a mix of private and public land, in a Western state. The BLM, these folks told her, wasn't doing enough to remove horses from the land -- portions of which they lease from the federal government at well below market rates.
There was a decades-old agreement between them and the BLM, the ranchers told Jane Doe, a deal enforced in 1981 by a federal judge. At the time, the feds agreed to manage the herds and remove most of the horses from the Checkerboard except for those the ranchers reluctantly agreed to allow to stay. The feds have reneged on the deal and the terms of the court order, the ranchers now claimed, and something had to be done about it.
Jane Doe listened to these advocates for an industry the Interior Department directly regulates. And then she offered some advice. If she stridently reminded the ranchers of the BLM's persistent removals of wild horses from the Checkerboard, roundups of thousands of mustangs over the decades which had angered wild horse advocates in the area, it is not reflected in the record.
Instead, what is on the record, what in fact the ranchers later would include in their court filings, is that Jane Doe told the ranchers that "litigation" against the Interior Department "would be necessary to secure additional funding for wild horse gathers." She had, in effect, told them to sue her own agency to force Congress to pay the cost of ridding the Checkerboard of most of its federally-protected horses.
Within a year, the ranchers did just that. They filed a lawsuit in federal court to force the BLM to eliminate wild horses from the Checkerboard. Jane Doe and the BLM did not aggressively defend the lawsuit. They did not point to all of the work the BLM had done over the decades to rid the land of the horses. They did not encourage wild horse advocates to join the litigation on behalf of the herds. Instead, the BLM and the ranchers entered into a Consent Decree which, they claimed, was "in the public interest."
The proposed deal would remove approximately two million acres of wild horse habitat in that Western state. It would immediately eliminate wild horses from two herd management areas and gradually reduce to zero the population in a third area. In return, the ranchers would allow a few hundred horses to temporarily remain on the Checkerboard but pay no additional leasing fees for the public land upon which their livestock are permitted to graze.
The federal case came before a federal trial judge, who happens to be married to the former governor of Wyoming. The former governor is no friend to the wild horses. In fact, his tenure was marked by a great deal of animosity toward the herds. The judge's decision -- whether to approve or deny the Consent Decree or suggest modifications to it -- could come at any time.
Jane Doe, as you may already have guessed, is Sylvia Baca, the former Interior Department official. The ranchers in the scenario are the folks at the Rock Springs Grazing Association. The judge is U.S. District Court Chief Judge Nancy D. Freudenthal. Her husband is former Governor Dave Freudenthal. The horses exist today, at least for now, in the Checkerboard in and around Sweetwater County, Wyoming. Here is some background on the case.
Questions of Form
Let's for now leave aside the merits of the case. Let's focus solely on the integrity of the process and the appearance of impropriety. Do you think it is appropriate for a federal official to invite a lawsuit against the very agency for which she works? Do you think it's a conflict of interest for that agency then to enter into a Consent Decree for the very remedy that was the subject of the lawsuit that the official encouraged to be filed? As a basic precept of ethics and governance, is that how we want and expect our public officials to act?
The Consent Decree reads like a capitulation by the feds. It does nothing to protect the horses or to recognize that the ranchers receive enormous financial benefits from the below-market leasing rates on public land. The BLM and the ranchers, it reads, "have concluded their discussions and the parties agree that it is in the public interest to resolve this controversy and enter into a stipulation with respect to the wild horses located on private RSGA land and to initiate a process to better manage wild horses on the adjacent public lands," and further:
that the parties have engaged in arm's length negotiations, and that it is in the interest of the public, the parties, and judicial economy to resolve this action through settlement.
I guess it all depends upon what your definition of "arm's length negotiations" means. How can it be so when an agent of one party, an official in government no less, advises the other party to sue? At a minimum, the circumstances surrounding the initiation of the lawsuit, and the resulting one-sided terms of the deal itself, raise legal and ethical questions about whether the deal truly is "in the public interest" or whether it is, instead, an example of raw political power imposed upon suppliant regulators by the very industries they are supposed to regulate.
Questions of Substance
Wild-horse advocates were allowed to intervene in the Wyoming litigation and they allege the obvious: collusion. From the very start of the case, they argue in their brief opposing the Consent Decree, "it is clear that RSGA and the BLM planned to use this litigation ... to require the agency to remove more wild horses from the Wyoming Checkerboard than is currently permitted under the existing laws and factual circumstances that apply to these matters." Not only should the Consent Decree be rejected, they argue, but the case should be dismissed.
The ranchers cannot validly claim that the feds did not abide by the 1981 argument, these advocates contend, because the BLM has capably removed thousands of excess wild horses from the Checkerboard over the past 30 years. Moreover, because of the unique topography of Sweetwater County -- because the horses roam back and forth between public and private land -- the ranchers and the BLM can't simply agree between themselves to remove the horses from public lands without undertaking a comprehensive review required by federal law.
"[T]he agency has not even prepared an Environmental Assessment," lawyers for the horse advocates have told Judge Freudenthal, "let alone determined that its decisions to remove all of the wild horses ... is not an action that may significantly alter the environment and hence require the preparation of an Environmental Impact Statement." The decades-old agreement, in other words, can't be used to justify an end-run around the existing federal rules and regulations, which are designed to protect both the horses and the environment.
It's not hard to see the roots of the ranchers' frustration. Though they are the beneficiaries of "welfare ranching" because of the below-market lease rates they pay for the use of federal grazing land, and though there is evidence suggesting that livestock do more damage to that land than do the horses, these folks believe that they have a legal right to force the removal of the wild horses because of the old deal they made with the BLM -- rubber stamped by a judge 30 years ago -- which permitted the horses to stay in the Checkerboard as charity cases.
Knowing that the environmental studies referenced by the wild-horse advocates would be lengthy and expensive, and in the end might not justify the removal of all of the horses from the Checkerboard, the ranchers and livestock tribunes tried a short-cut. I don't blame them. That's what industry does. What's wrong here -- on so many levels -- is that the BLM, supposedly a neutral public referee between competing interests, has been consistently complicit in a plan to evade the very legal requirements which are designed to protect the horses, and the land for that matter, from the particular machinations of a single industry.
The last word here goes to Lloyd Eisenhauer, born and raised in Wyoming, still a resident there, and a former BLM official with direct and extensive knowledge of the conditions in Sweetwater County as well as the relationship between the wild horses of the Checkerboard and the ranchers and livestock operators in the southern part of the state. In opposing the Consent Decree, Eisenhauer swore an affidavit which ought to be the first thing that Judge Freudenthal reads as she decides what to do here. From this affidavit, three points. First:
Essentially, in contrast to other areas of the country, where wild horses still exist, on the Wyoming Checkerborad [sic] 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.
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 prioritized livestock over wild horses...
[B]ecause livestock tend to eat somewhat different forage than wild horses... there is no justification to remove wild horses on the basis that insufficient forage exists to support the current population of wild horses. ... 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...
Right or wrong, that testimony deserves its day in court, where it can be challenged and tested and subjected to the rigors of cross-examination. It deserves a substantive response from the ranchers, and the BLM, and anyone else with an interest in what happens to our land and our wild horses. Judge Freudenthal should not accept this backroom deal between regulators and those they purport to regulate. She should not accept the fruits of a deal from a lawsuit the government itself invited. The horses deserve better. And the rule of law demands more.