By Victoria Prieskop, Courthouse News Service
October 26, 2016
The 10th Circuit Court on Monday reversed a ruling that gave the Bureau of Land Management permission to remove hundreds of wild horses from the Checkerboard area of southwestern Wyoming.
The Checkerboard is a range of roughly 1 million acres of alternating plots of public and private land in the high desert. It was created by the Union Pacific Act of 1862, which gave the Union Pacific Railroad the odd-numbered lots of public land for 20 miles on each side of the transcontinental railroad, while the federal government kept the even-numbered lots. It was regarded at the time as one of the biggest boondoggles in U.S. history.
More than half of Checkerboard lands are still federally owned, and private landowners there are prohibited from fencing in public rangeland. This makes it virtually impossible to confine herds of wild horses to the public lands.
In the Rock Springs District of the Checkerboard, the Rock Springs Grazing Association uses the land for grazing sheep, managing private lands and allowing livestock to graze on private and public lands, under terms of the Taylor Grazing Act of 1934.
The grazing association has been trying to get the local herds of wild horses removed from the range since 1979. The Bureau of Land Management signed agreements with the association in 1981, 2003 and 2013 to try to manage the number of wild horses on the grazing lands.
When funding limitations kept the BLM from thinning the herds on Rock Springs lands for several years, the association sued the Bureau and the BLM agreed in a consent decree "to remove all wild horses located on RSGA's private lands, including Wyoming Checkerboard lands." The BLM also agreed to adjust the herd limits in the area.
In July 2014 the BLM decided to remove all wild horses from three areas of the Checkerboard, public and private, and did remove 1,263 horses, reducing the local herd populations below their assigned population.
The American Wild Horse Preservation Campaign and others rapidly sued the secretary of the interior and the BLM for violating the Wild Free-Roaming Horses and Burros Act and the Federal Land Policy Management Act of 1976.
The Free-Roaming Horses Act requires the BLM to maintain an inventory of wild horses on public lands and to remove animals only in cases of overpopulation or damage to the land and habitat. Under the Act, private landowners can request removal of horses from their lands, but not from public land.
The U.S. District Court in Cheyenne ruled that the BLM did not violate the Free-Roaming Horses Act or FLPMA in the 2014 roundup. The court agreed with the BLM, which said that "'due to the unique pattern of land ownership' within the Checkerboard, 'and as recognized in the Consent Decree, it is practically infeasible for the BLM to meet its obligations under Section 4 of the [Act] while removing wild horses solely from the private lands sections of the [C]heckerboard."
The petitioners appealed, and on Monday Circuit Judge Mary Beck Briscoe wrote for the court that despite the difficulties of keeping wild horses from straying back and forth between public and private lands, the BLM cannot respond to private landowners' requests by treating public land as private land.
"(N)othing in Section 4 or elsewhere in the Act allows BLM to ignore the duties and responsibilities imposed upon it by Section 3, or to respond to a Section 4 removal request by treating public lands as private lands," Briscoe wrote for the unanimous three-judge panel.
She also agreed with the petitioners' claim that the 2014 roundup violated the Federal Land Policy Management Act by reducing the herds in three ranges without conducting appropriate reviews and administrative processes.
Senior Circuit Court Judge Monroe McKay wrote in concurrence that the answer may be for the BLM to recalculate population numbers for local herds based on the areas of public land and excluding private lands from the math, to keep herd limits low enough to be manageable in the Checkerboard.