NEPA Gutting and the “Spay Case” (into the weeds)

Conger mare with tracking collar, Utah. Conger will also be impacted by the “spay plan” at Confusion. The areas have populations that intermingle.

This article is an “update” on the legal action WHE began October 28 against the “Spay Plan” for the Confusion HMA.

Wild horses and burros are an “integral part of the system of public lands” according to the law. “Wild horse” and “wild burro” are legal terms that reference free-roaming horses or burros on BLM or USFS lands in the United States. 

The paragraph above is just the beginning of gaining any understanding of how to be an effective and informed advocate. 

Many throw around words like “fighting the gutting of the NEPA process” and then claim the “gut” is some mystery. When such statements are made it is understood that a “wild horse public” wont understand what that actually means, either. Many, including actions by many land managers, rely on an unwillingness of media and the public to understand the processes of land management when it comes to the wild horse and burro program.

There is no mystery. You just have to learn the language and recognize the connection between processes and how policy guides the legal frame. NEPA (National Environmental Policy Act)  guides the processes of carrying out the law.

We are getting multiple emails asking “what is the status” of our legal action against the “spay plan” now that 2 orgs have filed after the roundup has ended.

In order to understand where our fight against the spay plan sits, you need to understand a bit about NEPA and some of the administrative processes of land management. If this were sage grouse or oil and gas, our appeal would have gained media coverage that included the language of “public lands law.” Wild horse stories are more glitz than substance in the media, with no follow up on the cases where they may cover the federal district filings in response to a press release, but do not cover the outcome of the vast majority of cases. A filing brings a headline, that is often misleading, with no follow up on the actual issue at hand.

All of this is helping to keep wild horses and burros in some subset unrelated to “integral to the system of public lands” under law in the public eye.

It all contributes to the proposed gutting of NEPA processes for wild horses. NEPA is a frame for the process of management and advocacy for our interests. (scroll down to blue text for NEPA update)

Our case is now an illustration of the process that is part of what BLM wants to gut from NEPA and why. 

If you really want to understand “what just happened with the legal fight,” and what the “NEPA gut” is all about, you need to read to the end.

Stud with tracking brands and collared mare, both part of the Conger study that interacts and impacts Confusion HMA. Just as mixing spayed mares from Confusion will impact Conger.

Where Our Case Sits Now

WHE filed on October 28 as full and complete participants in the NEPA process that governs public land decision making. Since the initial filing we have responded to a Motion to Dismiss and filed additional documents. It was a lot of work: identical to filing in district court, except for certain terminology and at a reduced cost.

The first roundup began, that was tiered to the disputed EA, on November 29th, a Sunday.  This operation began 2 days after our final legal brief was filed, as BLM only gave an initial 30 days to appeal the EA. This created a timeline to get all briefs filed before the first action (roundup) allowed under the disputed plan. Our filing an appeal tagged the plan as “in dispute” prior to any action; actions formally in dispute prior to one single horse being removed from the range.

(note: Many of you remember the 2015 fight at Fish Creek. That incident saw wild horses rounded up and a pending release terminated. Wild horses were trucked to a facility and then, after the completion of a legal battle, returned to the range. That entire battle was fought in the same court, the IBLA, that we filed our action against spaying.)

Confusion Roundup (Dec 3, 2020)

We took the fight to the juncture where an administrative ruling on the merits of our arguments was pending. If successful, a ruling on our case would invalidate the entire EA.  We were fighting to invalidate the entire decision, not just “let us see any spaying” and change out spaying for PZP. The issues  run deep and determining any tool of management should not be slammed through in a gather plan. Setting a system up to run agenda, any agenda, over transparent and complete process is simply wrong (it is why the program has remained broken for 50 years). We fully expected to have our claim upheld.

Then, after all administrative deadlines expired and the roundup concluded, two cases were filed on the same date, in conflicting federal district court jurisdictions. A filing such as this, that has no actual due date attached, is no accident. This creates another layer of briefs that need to be filed just to determine venue. If they had filed on different days, at different times, the delays in gaining a ruling would not be as extreme.

If they had filed an appeal, as we did, the cases would have already been joined and a ruling expected soon. Instead, this issue wont even have venue determined for days or weeks. Any adjudication of the issues will take months, if they do not take a settlement first.

Even though our appeal is public knowledge, no one from either party that filed in district court reached out to us to determine what our filing entailed and if theirs would damage the work we had been doing on the case since October. Attorneys reaching out to those with existing claims is a part of the decorum of law. Even though one of the filings mentions our interaction in the NEPA process in their claim, yet do not mention us by name (we are simply noted as “some other org”)  attached to a small section almost verbatim from one section in our filing, we were given no  courtesy or consideration. We have no idea why they filed when they did, as it makes no sense to legal administrative proceedings. (We can not answer these questions for you. In layman’s terms: You are walking down the street and a purse snatcher takes your purse, knocks you over, and never looks back.)

We can  not stress enough how much work was done since the decision was finalized. Making the deadlines, creating a cognizable argument, making sure we hit all relevant points succinctly, is hard work. We did all of this on a rapid timeline putting all other tasks on a back burner and then you hit a “complication” that simply should not exist. In the world of advocacy this is not an unusual circumstance.

What that does to our case? it just made it more complicated and a lot more expensive. Now that related cases have been filed, regardless of the timing, our case is effected and a decision on our filing will, likely, be suspended until all the mess of the “red tape” gets sorted out. (We have not yet received a notification of suspension and are busy trying to determine our next course of action.)

We will need to file documents demonstrating our full involvement, so our case does not get buried.  The cost just went way up. In one venue or another, we will need to protect the heart of the issues we brought up on appeal, a legal tool we need to help all of our wild ones. We need to make sure our points get adjudication and not tied up in a settlement deal or overlooked.

The Appeal Process is a part of the “gutting of NEPA” many of you have heard about. BLM wants to gut the appeal process. Our filing is an example of the process BLM wants to eliminate and, the subsequent filings of the other groups, an example of why.  

Confusion Roundup

For the last few years many of you have been learning about attempts to gut processes and timelines for environmental issues, including wild horses.

Most environmental public lands decisions have at least 31 days, and up to 76 days, to appeal. BLM is operating on very short appeal deadlines on wild horse decisions.

BLM plans to gut that timetable even further; part of the “gutting of NEPA” you hear tossed about online and in press releases, but never explained, is the appeal process. Example of an appeal: opposition to a decision on an oil and gas lease sale would first be filed as an appeal and then, if not heard fully, the appeal could be carried into district court by an environmental org to attempt to overturn.

This proposed “gutting” of NEPA gained some attention last year. However, many organizations  claimed that BLM was trying to make it “too hard for organizations to observe roundups” by changing a notification timeline. They claimed the timeline cut “did not provide enough time to buy plane tickets and make travel plans.” These “observation” claims were made by the 2 orgs that just filed, coordinated on a random date, against the “spay plan.” These 2 orgs also claim to be fighting to “protect NEPA,” but seem to fail to comprehend what the BLM is gutting (and has already).

We notified our readers of those changes back in March of 2019. WHE protested those changes as we actually utilize that appeal period. BLM has not gone forward, yet, with obliterating the right to appeal. But they were just given another reason to do it using the way legal actions were filed at Confusion.

A change to a “14 day” notification period (the time a decision was finalized and the time a roundup could begin) did not represent an attempt to interfere with “plane tickets and hotel reservations.” It would gut the NEPA process and the time to protest new decision documents (EAs).

That proposed change applied to a when a new EA is finalized  and the time a roundup begins under that new EA. Most roundups are run on older EAs. Hence, you see several operations that begin in just days after being announced. Those operations are run on an older NEPA document(s). The (proposed) 14-day change applied to new NEPA documents. The change would gut the appeal period, part of the NEPA process.

Last year BLM gave us a glimpse at the proposed rule change: “Strive to issue the authorized officer’s (AO’s) signed Decision Record (DR) and Finding of No Significant Impact (FONSI)… 14 days prior to the proposed start date of the gather, with a multi-gather, multi-year effective life to maximize management flexibility.”

The reasoning was as follows: “… The intent of the 31-76 day lead time was to allow opponents of the gather decision to pursue an administrative challenge before going to Federal Court. However, opponents often go directly to federal court the day before or during a gather seeking a Temporary Restraining Order (TRO) or Preliminary Injunction (PI). Thus, the 31-76 day lead time did not achieve the intended purpose and furthermore, impeded management capabilities by reducing decision-making flexibility…”

BLM also directed long term EAs as another way to address the “waiting until a roundup begins” to file administrative legal challenges and the chaos it created to the roundup scheduling process: “The BLM should issue decisions authorizing gathers, removals, or population control actions through a phased approach or over a multi-year period when it determines that such an approach would help it achieve its management objectives..”

BLM now does one decision document that will last at least ten years. They will offer only one opportunity to appeal that decision and intend to cut that time to only 14 days… claiming advocates do not use the appeal process anyway and wait for the roundup to start (for whatever reason orgs have, that perhaps has to do with the way media treats appeals?). 

So what are we protecting when we say we are fighting against “gutting NEPA for wild horses?” We are fighting to keep the appeal process on equal footing with other environmental interests. This appeal process is critical now that BLM has already finalized (and is finalizing more each month) long term EAs. 

The appeal process is one that anyone can participate in that carries the same weight and parameters as a district court, at a substantially reduced cost. We are fighting to keep that timetable intact. 

An example of an outcome of a challenge in the appeal process governed by the arbiter, court, known as the Interior Board of Land Appeals. You can challenge a BLM decision and intervene when there is a filing you do not agree with, just like federal district court, through “intervention.” IBLA decisions can be appealed to district court.

What happens after any “win,” in any court, is dependent on multiple factors. There are many “big money interests” intent on moving multiple agendas. Those agendas do not disappear after a legal win in court relevant to any public lands issue.

Those with a financial stake in the outcome of “agenda over transparent and full process,” often resort to tactics to keep interests that have less resources (funding) from holding them accountable. Gutting the Appeal period required under NEPA, helps keep public lands management in the hands of those that can “pay to play” only.

Wild horses, sage grouse, speckled dace, etc. the fight continues on a case by case basis, site specific plan to plan.

We are now looking at all of our options to ensure the core of our appeal is protected.

We are also looking at options that will protect the process to file an appeal, one target of a “NEPA gutting.”

WHE is not looking to just switch out spaying for PZP. We are looking to ensure that any action taken complies with open and transparent processes, where all of us have a voice. No management agenda should be rammed into any “gather plan” without creating a full and complete plan that includes all factors at issue. 

Management has many factors and BLM needs to stop overlooking actual management. BLM should not be able to slide in agenda, anyones agenda, above the law. “Agenda of profit driven interests” over the law is what has kept this program broken for 50 years, with absolutely no incentive to stop the game. The games are getting worse, not better.

Until the media, the public and legislators begin to recognize “integral to the system of public lands,” and the actual processes that govern such, our wild horses and burros will remain pawns of agenda and never actually treated as integral to PUBLIC lands.

YOU can help us in that fight by taking action here.

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What you can do today to help in the fight.

Please take action to demand Congress defund any roundups where the BLM has failed to create open and transparent management planning.  Click HERE.

Call the Senate switchboard and ask for your rep. Demand that all actions against wild horses and burros halt until William Perry Pendley leaves the BLM. His tenure was ruled illegal and BLM is still moving an agenda forward for Pendley’s former law clients.  All actions Pendley had a hand in must face scrutiny by a Senate committee. Switchboard (202) 224-3121




Categories: Legal