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Wild horse case sees oral arguments

Cattle and Beef Industry News
Apr 14, 2017

—Attorneys in Utah argue over definition of “immediately”

Utah has 19 Horse Management Areas (HMAs) occupying 2.5 million acres of federal public land. According to the BLM, the state's combined appropriate management level for those HMAs is 1,956 animals. Gathers are used to help keep overpopulation down. Pictured is the Cedar Mountain HMA gather from 2012.
Photo courtesy of the Utah BLM.

What’s does “immediately” mean? This second? This week? This decade?

This was a foremost question in a federal courtroom on April 11, where a judge heard oral arguments on a lawsuit brought by ranchers against the Bureau of Land Management (BLM) for failing to remove excess wild horses from rangelands in Utah.

The Wild Free-Roaming Horses and Burros Act of 1971 (WHBA) states that if BLM determines that wild horse populations exceed appropriate management levels (AML), the agency “shall immediately remove excess animals from the range so as to achieve [AML].” When this wasn’t done on nine herd management areas and surrounding state and private lands in southwestern Utah for decades, a coalition of ranchers finally filed suit with the U.S. District Court for Utah in 2014.

As of 2013, BLM had determined that a total of 384 excess animals existed on the nine herd management areas (HMAs). “Plaintiffs believe that the true number of horses in these [areas] far exceed BLM’s estimated horse population,” the complaint states. Additionally, the state and private landowners outside the HMAs had made repeated requests for horse removals from their land where wild horses aren’t legally permitted to be.

Even though BLM has issued multiple decisions to remove excess horses since 2009, it has failed to remove enough horses to reach appropriate levels on any of the affected HMAs. It also has failed to remove horses from the surrounding private and state lands.

“The judge [Judge Jill Parrish] drilled all the attorneys on what ‘immediately’ means,” said one rancher-turned-plaintiff, Mark Wintch, in an interview with WLJ.

“BLM’s attorney said it means they will ‘immediately start taking steps to determine what to do.’ Typical for the agency.”

Karen Budd-Falen, the Wyoming-based attorney who argued on behalf of the Utah ranchers, told WLJ that she, too, hopes Judge Parrish will define the term “immediately” so that it “has some meaning” in the WHBA.

Forced reductions

Wintch is one of many ranchers who has had to make major cuts in his cattle numbers due to the horses’ impact on summer feed.

“In the last 25 to 30 years we have not been able to fully stock due to horses,” Wintch told WLJ.

In 2014, ranchers in the area were asked to “voluntarily” reduce their livestock numbers by 50 percent. Instead, Wintch’s family was forced to remove their cattle from their summer range for both 2013 and 2014 due to lack of feed.

Last year, Wintches reduced their summer range numbers from the normal 330 head for four months to just 57 head for three months. He said because of the excess horse problem, they’ve been forced to cut their herd back by 15 percent. If ranchers go out of business, he added, the horses will have no one to keep water pipelines in repair and haul water in drought years.

In the long view, Wintch said, desert rangelands don’t recover from abuse quickly. That means even if the horses were brought to AML, it could take decades before his family could return to their originally permitted numbers. He also warned that if BLM decisions don’t result in action, then the agency will start to lose power and credibility.

“If they don’t follow through on their decisions, then why should any of us follow their decisions, such as livestock reductions?” Wintch said.

There is one very convincing argument for following agency decisions to reduce livestock numbers: fines. In 2015, BLM issued a memo stating that ranchers who willfully allow excess livestock on their BLM allotment will be charged double the private lease rate in a given state. In Utah, the private lease rate was determined to be $15.00 per animal unit month (AUM); thus, the rate for willful trespass would be $30 per AUM per month. Permittees who “non-willfully” allow trespass livestock will be charged the average private lease rate.

On the other hand, the BLM and other federal land management agencies pay nothing for allowing excess horses on the range.

Different now?

While this isn’t the only wild horse lawsuit against BLM in recent years, Budd- Falen told WLJ this one could be different.

“Other recent cases in the 10th Circuit [Court of Appeals] and in Nevada didn’t have [BLM] records of decision to remove horses,” Budd-Falen explained. “We learned in those cases that just being over AML doesn’t mean BLM has to remove. There has to be a decision to remove.”

Indeed, on April 3, the Ninth Circuit Court of Appeals rejected arguments made by the Nevada Association of Counties (NACO), the Nevada Farm Bureau Federation, and others asking the court to require BLM and U.S. Forest Service to remove excess horses. The court determined the plaintiffs failed to cite a “final action” by the land agencies that could be challenged.

“Federal courts lack jurisdiction over an [Administrative Procedures Act] claim that ‘does not challenge final agency action,’” the decision read. “… Here, NACO has failed to identify a specific final agency action … or discrete action unlawfully withheld … that allegedly harmed it.”

Budd-Falen said she hopes the judge’s decision this time will be influenced by the fact that BLM had gone so far as to issue final decisions to remove horses. No timeline is known for a decision to be handed down by Judge Parrish, however.

According to Budd-Falen, BLM’s attorney argued that the agency has neither the funding nor the space to gather horses. Budd-Falen acknowledged that Congress “has put the agency in an impossible position.” While the WHBA requires BLM to keep horses at AML, she noted, an appropriations rider dating back to 2009 prevents it from destroying excess horses. Yet, she added, BLM has not been its own best advocate.

“Last year, under the Obama administration, the agency actually asked for less money for gathers, and more money for research,” she said.

Even Judge Parrish, Budd-Falen pointed out, told BLM point blank that it needs to join ranchers in asking Congress for a real solution.

New administration, new hope

Budd-Falen, who served as a member of President Donald Trump’s transition team for the Department of the Interior, sounded optimistic that change was coming for the wild horse and burro program.

Wintch agreed. While a new BLM director has not yet been appointed, he said Interior Secretary Ryan Zinke appears to understand the problem.

“I asked him about wild horses at the [Public Lands Council] meeting in D.C. [last month],” Wintch told WLJ. “He said it’s a huge problem, the populations are bloated, and he’s going to do everything in his power to reduce their numbers.”

Theodora Johnson, WLJ Correspondent

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