By Andrew Cohen, Special to Esquire Magazine
It's hard to believe or describe what just happened to hundreds of horses who were, until last week, roaming free in northern Nevada. Unwanted by members of a Native American tribe living near them, quietly delivered up by federal agents who wanted to make room for grazing livestock, unprotected by Obama Administration which says it is opposed to slaughter even as it enables it, the horses, more than 460 of them, were rounded up and shipped late last week to a public auction known for attracting "kill buyers" looking to fill slaughter plants in Canada and Mexico.
I'm told that approximately 149 horses -- unbranded and thus likely to be wild horses protected by federal law -- were spared from slaughter on Saturday thanks to wild horse advocates, public interest lawyers, and a federal judge who late Friday night issued a restraining order because of the "serious questions" she had about the way the roundup was conceived and executed. But approximately 316 other horses, branded and thus considered private property, found on federal or tribal lands or otherwise brought to auction by their legitimate owners, were sold at a public sale Saturday in Fallon, Nevada.
As Congress contemplates two measures that would again ban such slaughter around the nation, and as officials in New Mexico and Iowa grapple with the controversial return of slaughterhouses to their jurisdictions, many of the horses sold Saturday, perhaps as many as 200 according to witnesses at the sale, will be killed for meat -- or already have been. From a wild horse advocate, here's one account of what happened Saturday at the Fallon sale:
"Babies of weaning age -- maybe three months old -- were pulled from their mothers and immediately herded into the auction ring, one by one, crying and looking for their mothers as they were sold to the highest bidder. Then their mothers followed, pushed into the ring in groups of 5-6 horses, huddled together, terrified and auctioned in lots and purchased by a kill buyer. It was brutal."
The story of what happened to these horses is part of a broader story of the Obama Administration's deliberate indifference to the nation's wild herds and to the federal laws and policies designed both to protect and manage them. It is also a story that highlights the uneasy contradictions in the administration’s policy toward horse slaughter. Administration officials -- like Agricultural Department Secretary Tom Vilsack, for example -- have gone on the record saying they are opposed to slaughter. But it was the USDA’s Forest Service, in ways still not fully explained to the American people, that planned to facilitate the roundup of these horses (both the branded and unbranded ones) on behalf of the Paiute-Shoshone tribe -- a roundup destined (as it did) to lead to slaughter for many of the horses.
There is no law in America today that says a person can't sell his horse to slaughter. Members of the tribe had a right to collect and sell their own horses. But many serious questions remain about what happened last week, most notably these two: How did it come to pass that hundreds of horses were rounded up and shipped off for sale in the days immediately following a public announcement by the Forest Service that it was postponing that very roundup? And why, a week later, has the Forest Service still failed or refused to explain precisely what happened to cause these horses to be rounded up before officials satisfied their reporting requirements under federal law?
Had the advocates not intervened, and the judge not ruled, wild horses almost certainly would have been slaughtered in violation of federal law and policy. Moreover, if this episode represents a policy shift for the administration -- if it is now the policy of the United States to actively help private parties sell their horses to slaughter -- the American people surely deserve to have a fuller opportunity to debate the wisdom of that policy. On Friday, as the story drew attention in court and in the field, and as the emergency injunction filed by horse advocates was being evaluated by a federal judge, two of the three federal spokespeople responsible for keeping us all abreast of wild horse developments were gone for the weekend. A third told me via email that "it is Forest Service policy to defer to DOJ for comment on matters under litigation."
To understand the story you need to understand the geography. Most members of the Paiute and Shoshone Tribe live on the Fort McDermitt Indian Reservation, along the Quinn River, a swath of land that encompasses parts of both northern Nevada and southern Oregon. That sweeping area of the nation also is home to the Little Owyee Herd Management Area for wild horses in eastern Humboldt and western Elko counties in Nevada, as well as the Santa Rosa District of the Humboldt-Toiyabe National Forest, the largest national forest in the nation. There aren't nearly enough fences to handle the vast acreage, and so horses, being horses, wander freely in and out of the Little Owyee onto surrounding land, including the National Forest, where water is more plentiful. Wild horses, and branded horses, still need to drink.
Evidently these horses wandered too freely to suit the tastes of tribal leaders. In late May, the tribe entered into a "Participating Agreement" with the Forest Service "to remove unauthorized horses from the National Forest system lands to enhance the habitat and range condition on Forest Service System lands, to reduce nuisances and hazards from horses to Fort McDermitt residents and to enhance habitat range conditions" on tribal lands. Wild horse advocates say they were not given notice of this deal -- and thus an opportunity to stop it -- because it was published in a Native American publication. Wild horse advocates also claim that Forest Service officials impermissibly delegated the vital "public notice" function to the tribe. The tribe has not responded to my requests for comment.
There were plenty of provisions in the agreement that benefited the tribe. The Forest Service specifically promised to provide a third-party contractor who would gather the horses onto "staging grounds" on the reservation and then transport them to the Fallon Livestock Exchange, an auction house specializing in live animal sales. There, tribal members who chose to do so could sell their "property" to the highest bidder. The object of the deal, according to court papers filed late last week, was clear: to "safely gather horses, determine ownership, and either transport to market or return to owners according to Fort McDermitt tribal law & code."
But there were virtually no provisions in the deal that ensured that the nation's wild horses, which have special protection by virtue of the Wild Free Roaming Horse and Burro Act of 1971, would not be captured. Even though Forest Service officials knew or should have known that wild horses might have roamed from Little Owyee to the National Forest and then perhaps onto tribal land, and even though the roundup was in any event designed to take horses from federal land, there was nothing in the deal that set up a procedure for how tribal members or federal officials would identify and separate the wild horses they had rounded up.
Two weeks later, in mid-June, the Forest Service announced that it would impound "all unauthorized livestock found upon the National Forest Service Lands or other lands" contemplated by the agreement. This meant that the feds were improperly planning to round up (and allow the tribe perhaps to sell to slaughter) some horses that were likely to be federally-protected wild horses. In early August, wild horse advocates challenged the planned roundup on the grounds that it violated the 1971 Wild Horse Act and the National Environmental Policy Act, which requires federal officials to study the environmental impact of horse removals before gathering up herds.
How the Deal Changed
I learned about the plight of these horses at this point. And so I asked officials at the Bureau of Land Management, the Interior Department and the Forest Service to answer some basic questions about how, for example, the roundup could proceed in the absence of the required environmental assessment. Instead of a substantive response, the Forest Service first threatened to preclude public observation of the roundup. And then, on August 9th, the feds announced they were postponing "the removal" of the horses "in order to allow for better coordination of the process." The August 9th announcement was hailed by the horse advocates as a encouraging sign that the feds were going to take some time to think through the legal and practical ramifications of the Fort McDermitt roundup.
What no one then knew, however, was that the horses were doomed to be rounded up anyway. The very next day, on Saturday August 10, without any public notice or explanation by federal officials or tribal members, 277 horses were rounded up from these federal and tribal lands. By August 13, the feds now say, 467 horses -- branded and unbranded -- had been rounded up. All of these horses were then shipped to Fallon for sale. The roundup that had been officially postponed, and never rescheduled, was nonetheless a smashing success for the tribe and auctioneers.
Last Friday, citing these facts and more in a request for an emergency injunction, horse advocates sued to stop all unbranded horses- and thus likely wild horses -- from being sold at Fallon. The harm to federally protected horses might be irreparable, the horse advocates told U.S. District Judge Miranda Du, and the Forest Service still had not followed proper regulatory procedures under federal law. On Friday night, just hours before the sale was to begin, the judge granted the request. "Plaintiffs have shown serious questions," Judge Du wrote, "that wild horses were improperly rounded up." A hearing on the injunction will take place Wednesday.
On Saturday, the sale took place. Suzanne Roy, campaign director of the Wild Horse Preservation Campaign, told me this weekend that approximately 149 unbranded horses were pulled from the auction. "The auction pulled about 70 unbranded horses," she said, "and then we inspected every pen and got 70+ more pulled." Those horses may not be slaughtered. But it is not clear that they will be sent back to their home in the Little Owyee Herd Management Area. They are most likely instead to be shipped to holding facilities -- along with tens of thousands of other wild horses kicked off the range by the Obama Administration.
If the Forest Service has publicly reacted to Judge Du's Friday night order, I am not aware of it. Nor has the Bureau of Land Management, which has the most direct authority over the nation's herds, nor has the Interior Department, the Secretary of which has remained silent and invisible on this divisive topic, nor has the Justice Department, the lawyers of which will have to defend and justify the Forest Service’s conduct in this case. My attempts to reach tribal leaders or a tribal spokesman, before the August 9th postponement notice, were unsuccessful. No one this past weekend was saying anything about anything.
I used the phrase “deliberate indifference” above because what happened to those Nevada horses does not seem to have occurred by accident or even by the sort of common bureaucratic negligence that has accompanied so much of the Obama Administration’s conduct toward wild horses. The merits are bad enough: exactly why did the Forest Service appear to ignore federal law in a way that jeopardized wild horses? How could a roundup postponed by federal officials take place anyway the very next day? And what is the Forest Service doing facilitating horse slaughter in the first place? But the process by which the story unfolded may be even worse. The Forest Service "postpones" a roundup that then takes place and the Forest Service either does not know about it, or knows about it and cannot stop it, and is subsequently unable in any event to explain to the public what happened? It would be funny if it weren’t so sad.
Since neither federal officials nor tribal spokespeople were willing to answer my questions before last week's developments I will ask them here:
Accountability: Which Forest Service officials were responsible for the May agreement with the tribe? Who in Washington signed off on it? How can it be that federal officials who work with and around wild horse issues on a regular basis were so ignorant of their basic regulatory and statutory duties to protect those horses? How many other such agreements are now in place or contemplated by federal officials and tribal leaders or private parties? How many have provisions ensuring that wild horses can be identified and then protected from herds of gathered horses?
Finances: How much did the Forest Service agree to pay the third-party contractor to round-up the horses and deliver them to Fallon? How much did the Forest Service actually pay this contractor? I've seen an August 13 invoice from the contractor to the feds in the amount of $73,000 -- what work was done, if any, in exchange for this payment? Did this contractor round up horses on August 10 at the request of federal officials? At the request of the tribe? How much did the tribe pay for the roundup of horses on federal land? Did the tribe pay the contractor?
Duplicity: Did the Forest Service know when it publicly postponed the roundup on August 9th that the roundup would proceed anyway on August 10? If not, why not? If so, what did government officials know, when did they know it, and why didn't they stop the roundup? Statements by some Forest Service officials last week suggest that the feds were taken by surprise by the roundup. How can this be so? Is the Forest Service now blaming tribal leaders for the roundup? And, if so, how does that explain the role of the federal contractor who was issued a stop-work order on August 11, one day after the roundup began?
Transparency: Why did USDA officials threaten to block the planned roundup from public view before the Forest Service's August 9 postponement of the roundup? How could the Interior Department, the Bureau of Land Management and the Forest Service not have anyone on call last Friday afternoon or evening to provide public information about the pending emergency lawsuit? How long will it be before federal officials explain what happened last week?
Oversight: When will Interior Secretary Sally Jewell, the former chief executive who pledged to clean up the way her agency does business, interject herself into this management crisis? When will Secretary Vilsack authorize a review of this mess? When will the president of the United States inquire as to why administration policy toward wild horses and horse slaughter is being implemented in such a chaotic fashion? When will Congress -- perhaps Rep. Raul Grijalva (D- N.M.) -- intercede? I am not surprised by the Obama Administration's lack of transparency and accountability in its attitudes and conduct toward the horses. I have been writing about it for years. One big problem is that the two most relevant departments -- Interior and Agriculture -- are largely guided (in Democratic administrations as well as Republican ones) by the powerful industries they serve and so are rarely held accountable by Congress, which of course also is guided by lobbyists for many of those same powerful corporate interests. But what happened to these horses is different. Federal law and policy designed to protect wild horses was nullified here by bureaucratic short cuts and what appear to be legally dubious backroom deals. Those 149 wild horses are alive today despite, not because, of the government bound by law to manage and protect them.