By Arno Rosenfeld, Casper Star Tribune
October 11, 2016
A federal appeals court ruling Tuesday bolstered the Bureau of Land Management’s discretion in dealing with wild horse populations by dismissing a case brought by the state of Wyoming against the agency.
The 10th Circuit Court of Appeals upheld a lower court’s 2015 ruling that the state could not compel the BLM to remove wild horses from federal land unless the agency itself determined such action was necessary.
By reaffirming the BLM’s discretion under the Wild Horses and Burros Act of 1971, the ruling heads off similar attempts to force the agency to remove allegedly excess horses from public land across the west. Similar lawsuits originating in Utah and Nevadaare currently awaiting court decisions.
Bill Eubanks, an attorney representing wild horse advocates who filed a brief supporting the BLM, said Tuesday’s ruling set a precedent that will be hard to shake.
“This is major,” Eubanks said. “If anyone were now to start a new lawsuit on these grounds, it would be found frivolous. This really does shut the door.”
Eubanks said the Wyoming lawsuit was part of a recent trend of local and state governments suing the BLM claiming the agency was legally required to remove wild horses from public land if the animals passed certain population thresholds.
The Mountain States Legal Foundation, a public-interest law firm dedicated to private property rights by using creative legal arguments to upend legal precedent in the western United States, filed a brief supporting the state. The foundation did not respond to a request for comment.
This week’s ruling stems from a lawsuit Wyoming filed last year to force the BLM to remove what it considered excess horses from several blocks of federal land in mostly the southwestern quadrant of the state. Wyoming argued that the wild horse populations in those areas exceeded even the BLM’s own targets and damaged the land’s ability to support livestock grazing.
“The BLM has previously established management levels for each of these herd areas, and if they allowed horses to exceed the maximum levels that they themselves determined, then they have an obligation to remove them,” said Jim Magagna, executive director of the Wyoming Stock Growers Association, which joined the lawsuit in support of the state.
Under the Wild Horses and Burros Act of 1971, the BLM is required to set aside blocks of land known as “herd management areas” for wild horses to live. The “maximum levels” Magagna referred to are ideal population ranges set by the BLM for the wild horses in each area, known as “appropriate management levels.”
The state and stock growers association argued that the BLM is legally required to keep the horse population under the AMLs. They asked the court to require the agency to remove horses that exceeded the those levels in seven Wyoming herd management areas: Antelope Hills, Crooks Mountain, Green Mountain, Lost Creek, Stewart Creek, Fifteenmile and Little Colorado.
But the BLM said that determining overpopulation went beyond comparing current population numbers to the AML. Without going through a lengthy review process to see whether the horse population is disturbing the ecological balance mandated by the Wild Horses Act, the BLM argued there was no basis to force it to remove any animals.
The state argued “BLM’s position [is] one suggesting it is never required to remove horses until it decides removal is necessary,” Chief U.S. District Judge in Wyoming Nancy Freudenthal wrote in her opinion.
Freudenthal essentially agreed, ruling that the BLM was not bound by AML levels and must weigh additional factors when deciding whether to remove horses.
The ruling concluded that court intervention in BLM’s horse removal decisions would lead to inappropriate micromanagement.
Wyoming “cannot seek wholesale action across seven HMAs without miring this Court in programmatic issues best left to the BLM,” Freudenthal wrote. “This Court lacks both expertise and information to resolve whether it is necessary to remove any or all of the wild horses...”
The 10th Circuit Court of Appeals upheld the district court ruling that dismissed the state’s case, agreeing that the BLM was not automatically required to remove all horses that exceed the agency’s population targets.
“Contrary to the State’s argument, a determination that an overpopulation exists in a given HMA is not sufficient, standing alone, to trigger any duty on the part of the BLM,” the court wrote. “Instead, the BLM must also determine that action is necessary to remove excess animals.”
While acknowledging his disappointment, Magagna, of the stock growers association, said more than anything the case highlighted a need to reform the Wild Horses Act.
“It lays out pretty clearly some of the challenges that we as the state of Wyoming, and our industry, face,” Magagna said.
As for the BLM, Magagna said he understood its resources were stretched thin and that regions in, for example, Nevada — where wild horse population numbers are far higher than Wyoming — will inevitably be prioritized.
Magagna was confident that the BLM would bring the horse populations within the AMLs when it was able to.
“It’s not that they don’t want to do that, it’s just that they’re so overwhelmed by the number of wild horses,” Magagna said.
Gov. Matt Mead issued a statement Tuesday saying that he was exploring the state’s legal options in light of the ruling.
“The BLM is not managing wild horse populations as required [by law],” Mead said. “Wyoming wildlife and wild horses are treasured assets. Mismanagement adversely affects all species and the rangelands necessary for their health and survival.”
Wyoming’s lawsuit was just the latest salvo in an ongoing battle between private landowners and the BLM over wild horses on federal land. While the Wild Horses Act was created to protect dwindling numbers of the animals, the horse and burro population now far exceeds the BLM’s targets nationwide. But the agency’s hands are largely tied by funding and logistics when it comes to reducing the overpopulation.
In another significant wild horse case in the state, wild horse advocates are seeking to block the BLM from removing horses from public lands within the Wyoming checkerboard at the behest of private landowners in the area.
The 10th Circuit is currently hearing one of those cases, while another is before the U.S. District Court in Wyoming.
Eubanks, who is representing the groups in those cases, said that the court’s emphasis on the process the BLM must go through to remove horses from HMAs in this week’s ruling boded well for those cases. Horse advocates are arguing the agency has not followed proper procedures in rounding up horses in the checkerboard.
“We think it’s really helpful and almost predicative [for] the new checkerboard case,” Eubanks said of this week’s ruling.