This piece was written in 2015 and republished today, the 47th anniversary of the Act, 2018. In the last two years we have seen an escalation of the destruction of wild places and the push against protections of our wild horses. We have a lot of hard work to do in 2019.
The Wild Free Roaming Horses and Burros Act of 1971 (WFRH&B Act) was signed into law by President Richard Nixon on December 18, 1971 (approved on December 15). This law landed on Nixon’s desk after passing both the House and Senate (June 19, 1971) unanimously.
The idea that any bill that will create new law is hopeless to move through Congress is relatively new. In 2013 and 2014 were the least productive years in Congress since 1947. A link you can click on for further reading: http://www.nationaljournal.com/congress/2014/12/23/No-113th-Congress-Wasnt-Least-Productive-Ever
The WFRH&B Act created the sensation that wild horses were now protected on public land, but did not create actual defined parameters. Much of this law was an intention statement, rather than clear direction. Like most laws the practical application of the intention is left to imposition by competing law, lack of clear enforcement and interpretation by the US judicial system.
The one thing this Act did clearly was establish “jurisdiction.” Prior to the signing of this law free roaming horses were in a “no mans land” of legal discussion. They were caught in a “free for all” that resembled no other animal that roamed our American West. Livestock was run yearly, and gathered yearly, then sent to market by the livestock operator. Game species were hunted through tags purchased through state Department’s of Wildlife or Fish and Game. Wild horses and burros were nothing but a fast “cash crop” open to anyone, without regulation. The WFRH&B Act established federal authority on federal land, to regulate and manage.
Many people confuse the “Wild Horse Annie Act,” that became Public Law 86-234 on Sept. 8, 1959 with the WFRH&B Act of 1971. This law was specifically targeted to many of the foul practices of “mustanging,” (the free for all hunt of wild horses and burros by anyone, in brutal fashion). This law was brief and simple and reads: (a) Whoever uses an aircraft or a motor vehicle to hunt, for the purpose of capturing or killing, any wild unbranded horse, mare, colt, or burro running at large on any of the public land or ranges shall be fined under this title, or imprisoned not more than six months, or both. (b) Whoever pollutes or causes the pollution of any watering hole on any of the public land or ranges for the purpose of trapping, killing, wounding, or maiming any of the animals referred to in subsection (a) of this section shall be fined under this title, or imprisoned not more than six months, or both. But this law did not include the recommendation that Congress initiate a program to protect, manage, and control wild horses and burros under federal control. The nickname “Wild Horse Annie,” refers to Velma Johnston (Johnson) of Reno Nevada, a staunch advocate.
This law was hardly enforced. The practice of “mustanging” went virtually unchanged as local law enforcement failed, states ignored it and the brutality continued.
In order to address this advocates, including Velma, continued to document the brutality and take it to the public and Congress. Velma’s husband, a rancher named Charley, would literally “ride shotgun” on the range to protect his wife. Velma enlisted schoolchildren in a letter writing campaign. Long before the days of social media the documentation was unfiltered through the public sphere. This both slowed efforts (compared to how fast documentation can reach the public today) but kept it undiluted and uncorrupted.
In 1971 all of the documentation and visits to Congress finally paid off. In an election year, under the pressure of mounting public interest through the outreach to media (that was primarily print in those days) the push to get federal jurisdiction, enforcement, finally paid off. The Act passed as Velma’s health was failing.
We celebrate this week. We recognize the achievement and appreciate every step of “blood, sweat and tears.” We also recognize that the Act was not an end, but a stepping stone.
Many people fail to recognize what transpired immediately after the Act passed. A “claiming period” was created as Mustangers were outraged that they would be restricted. Essentially that period saw mustanging increase. In one year alone over 17,000 free roaming horses were claimed as “private property” in the state of NV. Wranglers were hired to remove, by any means, wild horses from certain grazing allotments to keep the “feds” from having additional jurisdiction over livestock operators. The livestock community was doing everything they could to get the “feds out.”
Pressure was being placed on Congress. That pressure included intense pressure from livestock to continue to operate unchecked (remember in 1976 the Federal Policy and Land Management Act, FLPMA was created to try to define land use). Federal agencies maneuvered to “get out” of the jurisdiction of the Act. The Bureau of Land Management (BLM) and Forest Service (USFS) are the only federal jurisdictions that remained under the provisions outlined. Scapegoating the wild horse was already in full swing as rangelands were being pounded by the cloven hooves of public land ranching.
In 1975 the first removal of wild horses after federal jurisdiction was established took place at Stone Cabin (bait trapping). The first removal saw the need to place horses removed. Velma was instrumental in creating the “foster” program that kept legal status as “federal wild horses” and then later morphed into the BLM adoption and “sales” program. The first removal also came with the first litigation. The outcome of the suit essentially required the BLM to obligate any removal to the National Environmental Policy Act (NEPA) in public process and that wild horses could not been removed simply to provide “cow chow.” To read go here: http://wildhorseeducation.org/2014/09/15/perspective-1975-first-blm-wild-horse-capture/ (here we begin to see the intentions of law interpreted in action on the ground and in the judicial system).
The ranching community was pushing to allow mustanging as “management” saying that the feds could not manage horses by “bait trapping” and the ability to profit off the land was being interfered with (sound familiar?). The federal “claiming period,” that essentially had allowed mustanging to continue, was out of control with ranchers claiming horses on public land as their own without providing proof of ownership and simply removing them in a timeline they chose.
In a 1976 report to Congress Velma once again gave testimony. She testified that helicopter removal was more humane than mustanging. She testified that the “claiming” was arbitrary, had little to no oversight, and allowed the brutality to continue.
In 1976 the WFRH&B Act was amended to allow helicopter use to roundup horses. In 1976 the claiming period ended.
Velma died of cancer in 1978.
Very little has been done legislatively since her death to expand and enforce the intention of the Act, in fact the opposite has occurred. Laws and land use plans began to cut away the intention of protecting wild horses as an integral part of our landscape. BLM changed the intention from a principle use of the land as a range (the amount of land and forage required to sustain herds) was changed to an upper case “R” that has only designated 4 ranges as “principle use,” in a process that resembles a magician pulling a rabbit out of a hat with no paper trail. The most nefarious of all was the stealth rider by Conrad Burns in 2004 allowing the sale of wild horses to slaughter, undermining the very core of the Act (Congress has repeatedly defunded this provision making outright sales illegal, but defunding must be defended every single year).
Key to the establishment of the Act was the cessation of brutality. The Act itself mentions the word “humane” no less than 7 times. In 40 years the BLM failed to create any handling policy, during capture and in holding.
It took until 2011 to get the first court orders against inappropriate treatment of wild horses during capture. We were told it was impossible by some very expensive attorneys. Our founder literally live out of her truck and travelled 100’s of thousands of miles documenting roundups. When a roundup ended courts said any case was “moot,” or no longer under court scrutiny, because the underlying documents governing removals only covered the removal itself. WHE just learned how to move faster.In 2011 not only did the court side with our documentation, the agency had to do an evaluation of it’s own practices to present to the Judge as we kept that case alive. (at this link you can access information, including the investigative Charter, on the report http://wildhorseeducation.org/2011/12/07/blm-issues-report-on-triple-b/)
WHE was able to keep the case alive because of a win in another case, on First Amendment issues. In that case we not only won a landmark ruling on access (15 news organizations nationwide spoke out through briefs filed in our defense) but we clearly demonstrated that simply because one roundup ended it did not mean the conduct would not continue at the next. (This case allowed daily observation at roundups and eventually got the doors open to a facility that had closed it’s doors to the public after horrific images reached the public sphere). http://wildhorseeducation.org/2015/05/11/whe-works-access-and-the-right-to-know/
WHE has gained multiple rulings against conduct. As a result BLM created the Comprehensive Animal Welfare Plan (CAWP). At first CAWP was nothing but a memo. We continued to fight in court and win. Last year the BLM attempted to put CAWP into roundup contracts. Instead of new contracts, old ones were extended as CAWP became a bargaining chip. This year a version of the policy is included in contracts. However for any tool to be effective first it’s existence must be recognized and then the tool used. The tool (Just like the Act itself) must be refined to reflect it’s true intention. (Read about some of our work here: http://wildhorseeducation.org/2015/05/06/whe-works-humane-care/)
On the range the inequity still exists. Extraordinary pressure by livestock, both exerted to local politicians and to the agencies themselves, still continues. Our documentation has stopped unjustified removals in areas such as Snowstorm and McDermitt (this year). We have been very active in documenting range degradation and trespass (unlawful) livestock grazing practices. (Read some of our work here: http://wildhorseeducation.org/2015/05/13/whe-works-on-the-road/)
Today the challenges are not to get the federal government to take jurisdiction, but to enforce the intention of law in an equitable and fair practice. It is not easy, but it is certainly not impossible (just as winning on inhume handling was not impossible). Some major discussion points in today’s advocacy http://wildhorseeducation.org/2015/09/20/whe-cut-to-the-chase-major-discussion-points-in-advocacy-today/
One of the most glaring deficits to create sustainable practices is actual hard fact on the way wild horses (and burros) utilize resource and the herds themselves. In 2013 the National Academy of Sciences (NAS) released a report that failed management practices on every level. Essentially this report confirmed what advocates had said (that had been vilified for daring to assert such things), that BLM fails to even “know” what they are actually supposed to manage. Every decision is based on historic assertion, not hard data.
Practices are not equitable. Profit driven enterprise (mining and livestock) are given priority on the minuscule 11% of public land that horses and burros legally occupy. Not only is the reality faced on the range inequitable, so is participation in process. Local politicians that sit on county commissions, state legislatures and in the national House and Senate are either ranchers themselves or in the pocket of industry.
A glaring example is the Fish Creek Herd Management Area (HMA) in Eureka. A plan was put in place that complied with all current fiscal and budgetary restrictions, including all recommendations from the NAS for data and fertility control, and it is being vehemently fought by local ranchers and government entities. You have to step back and wonder why? Why would these entities fight so vigorously to stop a plan that would slow population growth and gather data to create appropriate management of horses? You have to look deeper at the agenda. (Extended piece on Fish Creek here: http://wildhorseeducation.org/2015/06/07/fish-creek-the-controversy/
In the process of creating appropriate management of horses you discover the reality of the areas they live in and “who” they are. You document the herd (identifying individuals that would help track any “undocumented removals”). You document exactly how horses use the range (so they can not be blamed for degradation caused by other factors and to pressure specific habitat for horses to use). You also see clearly anything else that might be happening on that range (like times and quantity of livestock use).
Please remember that documentation of livestock use is abysmal. Permits are renewed with no actual assessment of ranges (so often that Congress snuck in a rider last year demanding BLM give out permits regardless of any “backlog” in doing rangeland assessment). Trespass livestock is more common than the public realizes. The “big ones” hit the news because of the threats of violence (like Bundy), but it is a widespread problem. Permits begin and end on specific days but can be “inconvenient” to comply with. Trespass of a few weeks to a few months, is rarely documented by understaffed offices. When trespass is brought to their attention the livestock industry has multiple legal loopholes.
When government agencies “deal with” environmental organizations or wild horse advocates counties, ranchers and legislators go a bit “insane.” Every effort to remove any other voice in process but their own is made. Argenta is a good example (where wild horses are not present): http://wildhorseeducation.org/2015/11/25/clandestine-grazing-agreement-draws-more-legal-fire-from-environmental-groups/
In the larger picture the resentment over the passing of the WFRH&B Act is still in full swing. The federal government took away a cash crop and they want it back. There is a huge push in the “State’s Rights” agenda to take over control of federal land and get those “damn feds” out of our hair. The agenda also includes the resumption of mustanging (the ability to remove and sell wild horses to slaughter) in the name of “humane management and the resumption of all horse slaughter in the US.
Today we raise our coffee cup to Velma Johnston. We thank her for her tireless effort and passion to open up the door to gain protections for our American Mustangs. We bow our heads as we recognize that to take this work forward we must be ever vigilant. We understand that in order to make the intentions real, we must address every facet at the core and not get lazy and be reactive, but proactive and unafraid.
Here’s to you Velma, may we make you proud.
Access our main website here http://WildHorseEducation.org
To support the work of WHE go here: http://wildhorseeducation.org/giving-tuesday/
We hold out hope.