Legal

Owyhee Complex Roundups, NV: Next Phase of Litigation Explained

When a legal case is filed you craft a Complaint that deals with the issue. Then you file a Motion for a Temporary Restraining Order or “TRO.” You also file a motion for Preliminary Injunction. SEE EXPLANATION HERE >>> 

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UPDATE: Our attorney had significant surgery and hearing date reset. ORDER granting [21] Motion to alter Preliminary Injunction hearing date. The hearing set for 4/18/2013 at 9:00 AM is reset to 5/31/2013 at 9:00 AM in Reno Courtroom 3 before Judge Miranda M. Du.

BACKGROUND

Run in sub-freezing temperatures at Owyhee (Leigh)

Run in sub-freezing temperatures at Owyhee (Leigh)

When we are talking about cases involving wild horse and burro issues (particularly issues surrounding handling of animals) writing (and researching) a case, obtaining the temporary restraining order (TRO) and Preliminary Injunction, and gathering and preparing documentation and collecting declarations to support the argument are often done at a frantic pace. As an example, if an issue is documented that raises concern, attempts must be made to address issues through other means first. If those efforts fail, and there is no action made by the erring party at improving the situation, the only option at that point is to address the issues through the courts. Often you find yourself under the gun of time. Many operations take place rapidly and you must create your case before the conduct in question ends, e.g. before a particular roundup ends. However, new case law (created in a case carried by  Wild Horse Education (WHE) has effectively demonstrated that conduct is cyclical, and likely to reoccur, as Bureau of Land Management (BLM) roundups repeat in each area in any given time frame.  In addition, BLM can operate on plans that have not been revised to correct the contested actions, as is the case with the Owyhee Complex of roundups in Nevada where BLM is operating on a Record of Decision that spans ten years. Over the span of the execution of the ten year plan, BLM has not revised the plan to correct the issues presented to them through all avenues.

If you have been following the Owyhee case on our WHE Blog, Facebook page and website, you know that WHE was at the first phase of operations in the Owhyee roundup, almost daily, and documented issues that raised serious concern. WHE documented horses being run into barbed wire, excessive and unjustified  hotshot use, foals literally being run to exhaustion, and horse run until they were steaming in extremely cold temperatures. The distances these horses were stampeded  exceeded ten miles. The next scheduled roundups in the Owyhee Complex operation could require stampeding horses at distances as much as twenty five miles to reach the chosen trap location. These are Issues that WHE, and the  public, through a  letter writing campaign, made every possible attempt to rectify.

And as BLM has chosen not to do the entire Complex operation based on the data used to create the decision, they have now created a situation where, as they move operations forward months or years after data is collected, they now can not accurately determine excess animals exceeding their authority under the Act. In other words they can not accurately determine  how many horses they will leave on the range and will likely leave populations in each Herd Management Area (HMA) well below their claimed “Appropriate Management Level,” or AML.”

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Run by helicopter, run by horses, roped and exhausted this foal is carried back limo to the trap, Owyhee Complex

THE CASE TO DATE:

Incredibly on January 3rd, 2013 BLM announced it was moving into the second phase of the ten-year plan without making any changes to the plan. That announcement began the clock ticking for Leigh and attorney Gordon Cowan to write the Complaint and Motions and to finalize all supporting documents and declarationsfor WHE’s filing in court against BLM’s actions.

(To see the personal side of this, all the above events were occuring simultaneously for Laura Leigh, WHE President and principle investigator, who was also working on a separate legal case against BLM, arguing Motions in yet another case, recovering from a severe case of hypothermia that happened during final days at Owyhee, and preparing for and starting the observation project for the Diamond Complex roundup).

On January 4th Federal Judge Miranda Du, in response to WHE’s filing,  granted an emergency TRO and halted phase two of the Owyhee Complex operations, pending hearing. What happens then behind the scenes is that during that time before the hearing,  BLM attorneys craft a “Reply” which WHE has to respond to by crafting an “Answer.” All of this takes incredible amount of time and effort.

On January 10th there was a hearing in federal court regarding the WHE’s Owyhee TRO motion. The night before, in a race against time, after the briefs on the TRO were filed, WHE finished the more extensive Owyhee Complex brief for Preliminary Injunction. At the hearing, BLM argued that temporarily holding the horses they had just captured in the field (remember they announced they were moving ahead late on January 3rd and started at sunrise on the 4th) was costing the taxpayers $20,000 a day! Holding less than 50 horses in pens on the range was costing $20,000 a day? So BLM said they needed the order lifted to transport those animals immediately to short-term holding. The BLM also claimed that Nevada State WH&B lead, Alan Shepard, was a “witness” that all conduct at Owyhee  was “humane.” The only slight problem with this is that Alan Shepard had not been to Owyhee nor had he reviewed any of the video tape. The BLM Incident Commander (IC) who is supposed to, according to BLM policy,  communicate all activities “up the chain,” was only seen to be present by WHE declarants (WHE witnesses at Owyhee ) on two days of the operation. The hearing lasted much longer than most hearings for TRO, and the Judge told those in court she would give her ruling shortly.

Foal falling after stumbling at ditch as other horses stampede through the jute, Owyhee Complex

Foal falling after stumbling at ditch as other horses stampede through the jute, Owyhee Complex

On the way out of the courtroom,  BLM Nevada’s WH&B lead Alan Shepard said, that BLM would continue to treat the horses as they always do. He made that statement before the Judge’s ruling.

Within a couple of short hours the Judge gave her ruling. She did allow BLM to continue the operation (remove the 50 horses and PZP treat and release about 150),  but she set the Court’s expectations of how the operation would continue. PLEASE READ BOTTOM OF PAGE HERE>>>

(Please note BLM did not then ship the 50 horse out of the field until three ays after the TRO was lifted. Right, the same horses that were costing $20,000 a day to hold and were constituting a hardship if the Judge did not immediately lift the TRO and was the bulk of BLM argument to the TRO).

WHAT COMES NEXT?

A hearing date has been set for the next motion to be heard. That date is currently set for April 18th in Nevada Federal Court. (To find out more details about the hearing, sign up for email notifications on our website, subscribe to our blog, or like us on Facebook for regular update posts).

The next motion is the one that involves a Preliminary Injunction. A Preliminary Injunction, if won, will hold off the operation until the underlying case can be heard. If the underlying case is heard,  the language of an Injunction  can become permanent (unless Appealed).

The Owyhee Complex is on a ten year plan and BLM did announce that they could be back as early as this summer, with the Snowstorm Roundup  (HMA in the Owyhee Complex) as the likely first target. Snowstorm HMA had been removed from the schedule this winter, suspended due to a lack of space for more horses in BLM holding pens and warehouses. The Snowstorm HMA had a target of 384 animals to be run into government pens and 256 to be removed. ALL HMAS in the Owyhee Complex are now subject to removal, whenever BLM decides to do so, without another Environmental Assessment (EA), public comment,  or any new data gathered over the NEXT TEN YEARS.

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Owyhee Complex

THE PRELIMINARY INJUNCTION

Inserted below are screen grabs of  documents filed with the court. Please take the time to read through these documents to understand the case for humane treatment and that BLM is exceeding authority to remove horses that WHE is making. If WHE is successful in this case it will mean that there will be in place a Court-ordered humane treatment expectation at all roundups at the Owyhee Complex for the next ten years and that BLM will be prohibited from removing animals it can not identify as excess. This would still mean BLM will have to be observed by outside parties, like WHE, and called to task for violating the orders, but a permanent court injunction is the law….not just a BLM memo of good intent (as the Memorandum on expectations they are presenting to the public is a non-specific reiteration of current protocol, it is nothing new).

Documents below are a series of screen grabs to allow you to see the current arguments. Each document is also loaded in fill version. Declarations etc will be loaded shortly under the Owyhee section of Legal Action in the menu bar. (WHE needs your support to continue this case. Please read and decide if this action is one you want to see move forward and support it if you can).

CHALLENGE

Plaintiff (Leigh) Challenges:

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Plaintiff (Leigh) continues

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Plaintiff gives a bit more background: 

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continued:

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IMPORTANT INFORMATION ON NEXT PHASE OF OWYHEE NOTED (as BLM is now claiming they have no plan to go there until perhaps two years from now, in briefs filed to dismiss this motion)

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INTERESTING:

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A REMINDER (one section)

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CONCLUSION:

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The Plaintiff’s Motion was uploaded in full in this post>>>

BLM RESPONSE

(all of the below are from BLM’s filed Reply to Preliminary Injunction (the argument AGAINST us)

These are some important things YOU need to see nestled in BLM’s response to the challenge.

FIRST is a statement that shows litigation CAN lead to an amendment to the ACT itself, in this instance not in the horses favor.

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THIS IS VERY IMPORTANT-BLM CLAIMS THEY CAN REMOVE HORSES WITH SIGNIFICANT “DISCRETION” THAT ARE EXCESS, (Remember that term “significant discretion,” BLM uses it all the time)BLM2

AND THAT ARE NOT EXCESS, BUT BECAUSE OF RANGE HEALTH, REGARDLESS OF CAUSE

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AND IN ANSWER TO THE ADMITTED FACT THAT THEY HAVE NO DATA TO JUSTIFY THE REMOVAL THEY BASICALLY SAY THEY DON’T NEED IT

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IN A NUTSHELL THEY BASICALLY SAY THEY CAN DO WHAT THEY WANTdeference

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HERE THEY DENY WHAT THEY SAID TO THE PUBLIC IN DECEMBER 2012 and JANUARY 2013 in RESPONSE TO LETTERS EXPRESSING CONCERNS

BLM ALWAYS SAYS THIS… HOWEVER THEY CLAIM THAT THE TEN-YEAR OWYHEE COMPLEX ROUNDUP IS OVER? 

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HERE BLM CLAIMS THE ROUNDUP WAS HUMANE

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HERE BLM CITES A CASE OF OIL REFINERIES CREATING POLLUTION TO CLAIM THAT THEIR TESTIMONY OUTWEIGHS THE PRIVATE SECTOR (BUT IN OUR INSTANCE IT IS THE OFFENDER DETERMINING HIS OWN CONDUCT STANDARD)

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BLM CLAIMS LEIGH IS “SELECTIVE” IN HER CONTENT AND HER DOCUMENTATION DOES NOT SHOW ABUSE

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BUT EVEN IF THE COURT AGREES WITH LEIGH AND HER DECLARANTS THE BLM CLAIMS THE COURT CAN’T RULE IN HER FAVOR

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BLM CLAIMS THERE WERE SPECIFIC GUIDELINES IN PLACE

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HERE BLM QUOTES THEIR “GATHER RELATED” NUMBERS (not included are deaths that BLM says were pre-existing nor injuries nor deaths at the facility)

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HERE BLM IS TALKING ABOUT WHY HOTSHOTS WERE USED

BLM017SELF-EXPLANITORY

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HERE BLM CLAIMS LEIGH DOES NOT SHOW ANY INHUMANE CONDUCT

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HERE BLM CLAIMS LEIGH HAS NO RIGHT UNDER LAW TO ASK FOR BLM TO HAVE SUFFICIENT DATA

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HERE BLM CITES A CASE WHERE STANDING WAS NOT GRANTED AND THAT LEIGH IS NOT HARMED BY WHAT SHE WITNESSES (If you do not meet this standard, even if your argument is valid, your case will be dismissed)

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HERE BLM IS TRYING TO ARGUING A CASE WHERE LEIGH (WHO HAD/HAS STANDING) SHOWED THAT BECAUSE AN ACTION HAD CEASED IT WAS STILL APPLICABLE TO THE COURT AS LIKELY TO REPEAT, YET THEY CLAIM IT IS NOT APPLICABLE HERE.

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HERE BLM MAKES A CLAIM THAT LEIGH HAS NO RIGHT TO ASK THAT THE BLM PROVIDE INFORMATION TO THE PUBLIC AS THE PUBLIC CAN GAIN THAT INFORMATION FROM THE PRESS (YET LEIGH JUST LEFT ANOTHER FEDERAL COURTROOM ARGUING THAT BLM DENIES INFORMATION TO HER, AND OTHERS,  EVEN IF THEY ARE “PRESS”)

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BLM REPLY BRIEF IN PDF HERE (Doc17-0)OpposMotPrelimInj(Def)

HERE IS LEIGH’S ANSWER IN FULL

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Answer2

Answer3

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All supporting declarations will be posted shortly.

WILD HORSE EDUCATION NEEDS YOUR HELP!

The Owyhee case is heading for hearing. The Triple B (and Jackson Mountain case), which is also a case to secure humane treatment, are in Discovery phase in the courts. The First Amendment or Press Freedom case is waiting for a ruling on Preliminary Injunction with the underlying matter still needing to be addressed . (In the Press Freedom case WHE needs to purchase the court transcripts of the hearing, which will cost over $1000. WHE has to have the transcripts just to prepare a response, it does NOT include any other fees). There are rumors that after WHE wins a TRO they get a lot of money from the government, that is false. AS a matter of fact in both the Jackson Mountain TRO and the Triple B Injunction WHE had to post a small bond requiring further expense.

PLUS WHE has roundups and other field work and various other investigations and issues associated with drought and potential removals.

Our work  must continue and if you feel these cases and are worth fighting for then we need really your support! Small donations add up and give us the fuel we need to see this through!

CLICH HERE TO DONATE: https://wildhorseeducation.org/donate/

BLM has made claim that they are telling the entire truth and that Leigh is “selective.” Below is Leigh’s video of one of the barbed wire and then BLM’s. Can you decide who is selective when BLM omits the entire event?