Plaintiffs Decry BLM's Plan to Turn Wild Horses into "Ranch Animals"

Update Dec. 23, 2011: Following the filing of the lawsuit, BLM announced it would postpone plans to zero out the wild horses on Jakes Wash and castrate male horses, returning them to the Pancake Complex.  Read about the lawsuit below.  

Original report: Once again Western Watersheds, The Cloud Foundation and American Wild Horse Preservation Campaign are challenging in court "a controversial and precedent-setting ‘pilot' program by the Interior Department's Bureau of Land Management ("BLM") under the Wild Free-Roaming Horses and Burros Act ("Wild Horse Act" or "WHA"), 16 U.S.C. §§ 1331-1340, to roundup, castrate, and return wild horses to the public lands in Nevada". 

Craig Downer, a renowned wildlife ecologist, and Arla Ruggles, a wildlife photographer, are also plaintiffs in the Complaint filed in U.S. District Court in Washington, D.C.  

Previously, the agency withdrew a decision to castrate wild horses when AWHPC filed suit. Am. Wild Horse Preservation Campaign v. Salazar, Civ. No. 11-1352 (D.D.C.) (ABJ) Dkt. Nos. 13-14 (Aug. 8, 2011).

The new lawsuit also challenges the BLM's decision to permanently remove all of the wild horses from approximately 153,663 acres of public lands called Jakes Wash, on the purported grounds that there is not enough forage and habitat for the horses. This despite the thousands of cattle and sheep BLM permits to graze on these same public lands, animals that, unlike the wild horses, are not required to be "‘protected' as an ‘integral part of the natural system of the public lands.'" 16 U.S.C. § 1331.

The Complaint in this case targets "BLM's decision to permanently remove all of the wild horses from Jakes Wash, to castrate and return male horses to the Pancake Complex, and to remove 84% of the current population of wild horses in the Pancake Complex" as violations of the "mandate of the WHA".

Plaintiffs challenge that BLM's "scientifically unsound, controversial, untested, and radical approaches for the management of wild horses" violate the requirements of the WHA to "protect and manage" these "wild and free-roaming" horses as "living symbols of the historic and pioneer spirit of the West" and to ensure that "all management activities shall be at the minimal feasible level." Id. §§ 1331, 1333(a).

Plaintiffs point out that "BLM's decision to return a significant number of ‘non-reproducing' geldings to the Pancake Complex is inconsistent with the agency's own regulations which require it to manage these wild horses ‘as self-sustaining populations of healthy animals,' 43 C.F.R. § 4700.0-6(a), and is therefore arbitrary, capricious, an abuse of discretion, and not in accordance with law in violation of Section 706(2) of the APA....

"The BLM's decision to set the AML for wild horses in the 2008
RMP, and to implement that decision in the ROD on the Pancake Complex, without first conducting an ‘an in-depth evaluation of intensive monitoring data or land health assessment. . . . includ[ing] studies of grazing utilization, range ecological condition and trend, actual use, and climate (weather) data [as well as] [p]opulation inventory, use patterns and animal distribution" violates the BLM's own process for making AML determinations, BLM Handbook at 4.2.2.1, 4.2.2.2, and is also arbitrary and capricious and an abuse of discretion."

The Complaint states, "The BLM's decision to castrate wild horses and to permanently remove an entire wild horse population also violates its own resource management plan for this area of public lands which requires it to ‘protect' and ‘maintain' viable, ‘self-sustaining' herds of ‘wild' horses while retaining their ‘free-roaming' nature, and the BLM has violated its obligations under the Administrative Procedure Act, 5 U.S.C. §§ 551-706, by failing to consider the impacts of its actions on both the individual horses and wild populations as a whole; failing to explain the basis for its management choices; and failing to respond to significant comments in opposition to these management actions, including sworn declarations from biologists and others concerning the significant adverse affects such actions will have on these wild horses."

NEPA Violations

According to the Complaint, BLM has also violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4370f, by ‘failing to adequately analyze[, to take a ‘hard look' at] the environmental consequences of its decision on the individual wild horses or the herds as a whole; failing to consider reasonable alternatives such as reducing the amount of livestock permitted on these lands; and failing to prepare an Environmental Impact Statement ("EIS").'

The plaintiffs, in particular, allege:

Because the BLM's decision to adopt an untested "pilot" management approach that involves castrating a significant number of wild horses and returning these severely impaired animals to the range is extremely controversial, implicates impacts on the wild horses and the environment that are highly uncertain, establishes a precedent for future actions with significant effects, and will cause the loss or destruction of a significant cultural resource - i.e. the free-roaming horses that Congress has commanded the BLM to "protect" - the agency's failure to prepare an EIS before proceeding with this action also violates NEPA and the CEQ's implementing regulations.

....  BLM failed to analyze the environmental effects of the action on the behavior and physiology of wild horses subjected to sterilization and then cast out back on the range. Nor did the agency analyze the action's effects on the social organization or long-term survivability of the herds - comprised in substantial part of non- reproducing horses.

....BLM also failed to explain how an action that results in converting the majority of the wild male horses in these herds into castrated horses more akin to ranch animals is consistent with the agency's obligation "to protect and manage wild free-roaming horses" as "living symbols of the historic and pioneer spirit of the West." 16 U.S.C. § 1331.

... Castrating a male horse decreases muscle mass and strength, reduces bond density, and increases frailty - all of which puts the horse at a significant disadvantage on the range in terms of survival. Castration will also adversely affect the horse's behavior in the herd. For example, wild stallions who are part of family bands try to protect their mares from harassment by other stallions to secure exclusive reproductive access to the mares, and wild stallions who are part of bachelor bands of stallions attempt to displace band stallions and acquire reproductive access to mares. Geldings do not exhibit these natural wild horse behaviors.

.... Adding a substantial number of castrated geldings to a wild population will have definite and noticeable adverse impacts on individual wild horses and on the social structure of the herds as a whole.

What This Means for the Horses

BLM determined that 1,847 of the combined approximately 2,208 wild horses believed to exist in the Complex, are in "excess" of the combined low AML for the area of 361 horses. AML or "appropriate management level" refers to the  range of numbers of wild horses and burros the range can sustain, at least according to BLM.  BLM has been managing, or rather, removing wild horses and burros, to keep only the low end of AML on the range. Thus, BLM will retain a total of 361 reproductive wild horses - in conformance with the lowest end of the combined AML (361-638) - over the course of two to four gathers to take place over six to ten years.

BLM proposes to round up "approximately 65-70% of the existing wild horses in the Pancake Complex - approximately 1,435-1,540 horses in the initial 2012 gather - every two to three years, and to permanently remove approximately 800-1,000 horses from the range each time, until the low AML of 361 reproductive wild horses is achieved, which the agency projects will most likely occur in six to ten years. ... The proposed action additionally called for a 'non-breeding component of 200 geldings' that would be returned to the range in addition to the 361 reproductive horses needed to achieve the low AML, meaning that approximately 36% of all of the remaining wild horses in the Pancake Complex and 60% of the remaining male horses will be unable to reproduce when the roundups are completed. Id. The proposed action also sought to intentionally skew the sex ratio of the Pancake Complex's herd - 60% males to 40% females - and to use two-year fertility control treatments of the Porcine Zona Pellucida (PZP-22) vaccine for all of the female horses returned to the range."

The BLM will also eliminate all of the wild horses from Jakes Wash, based on the BLM's determination that "[r]emoval of all excess wild horses from the Jakes Wash HA is needed" to meet the management directives of the 2008 Ely RMP - i.e., to implement its determination that there is not enough forage and habitat to sustain any of these horses. Yet, BLM's own reports show that  Jakes Wash currently supports 132 wild horses.

BLM currently allows up to 2,320 cows and 3,131 sheep to graze in Jakes Wash.

According to the BLM's records, the BLM currently allows up to 8,691 cows and 18,082 sheep in the Pancake Complex as a whole.

Livestock and wild horses use the same forage and also compete for water and other resources on the range.

The BLM has failed to explain in any of its planning documents "why all of the wild horses must be removed from Jakes Wash on the ground that there is purportedly ‘inadequate' forage, water, habitat, and other resources available for wild horses, yet the agency has decided to continue to allow livestock to remain in the same area at the same levels, ...and that the most recent habitat evaluation in Jakes Wash showed that ‘[c]attle grazing is a contributing factor' to not achieving the BLM-required habitat standards to avoid damage to the range."

The plaintiffs call this decision a "sudden reversal of position from one [BLM] has maintained for nearly forty years - i.e. that wild horses must be maintained and protected in Jakes Wash".

The BLM is planning to conduct its first roundup in the Pancake Complex in January 2012.

Plaintiffs who are represented by Katherine A. Meyer, Meyer, Glitzenstein and Crystal, are seeking a declaration that the BLM has violated the Wild Free-Roaming Horses and Burros Act, the National Environmental Policy Act, and the Administrative Procedure Act; and an order enjoining defendants from taking any further actions to roundup and remove any wild horses from the Pancake Complex, including Jakes Wash, until they have fully complied with the provisions of these statutes.

A copy of the Complaint is attached below. For more on the BLM's planning documents for the Pancake Complex roundup....