Understanding Action Items (3 branches)

By Laura Leigh on November 23, 2021

As we advocate for wild horses and burros we have to take actions toward long term goals, as well as short term actions.

Update November 23, 2021: We are getting a lot of questions about action items. the who you ask is as important as what you are asking for. We have republished this article (with all of the edits) to answer those questions. WHE is still involved in legal action to address the process that led the agency to arrive at the “spay plan,” we did not drop our case because they omitted the procedure from this plan.

Update April 19, 2021: The ovariectomy via colpotomy (spay by twisted and pulling out ovaries) has been pulled out of the “BLM toolbox” in an administrative decision. Our legal action remains in pending status as we await a determination on how BLM will handle the approved planning document (final EA) for the Confusion herd. (here)

ACTION SNAPSHOT SHOWING MULTIPLE AVENUES TO ADDRESS THE SAME POBLEM, IN PROGRESS 2/2021

On January 27, 2021, Wild Horse Education (WHE) sent a request to suspend BLM operations (roundups, sterilization, Adoption Incentive Program) that have been approved, or are in process of approval, under the tenure of William Perry Pendley, former acting Director of BLM.

WHE has sent a list of approved, and pending, EAs to the Department of Interior, and the President, asking for review based on the “the questions of fact. law. and policy they raise.”

Included on the list is the EA for the Confusion Herd Management Area (HMA) that contains, among other activities, the experimental spaying of mares. The Confusion HMA is part of a complex of HMAs where the other HMAs are already subject to experimental procedures and various forms of temporary fertility control.

WHE is involved in several legal actions against livestock grazing decision (as well as litigation against the Utah “spay plan”). Some of these decisions are based, in part, on policy changes that were never finalized. These decisions were included in our listing.

As we move these site-by-site requests through process, you can help in the big picture through letters to the President and your Congressional Reps.

One action you can take is to help us push for a overall review of the entire program. HERE.

Our actions, together with your actions, can move change by addressing an issue at multiple points of entry.

Wild horses and burros in the US are part of the system of public lands. There is no “one lawsuit,” or “one change” in law, that would denote an end to advocacy for the wild. We must continue to address issues as they arise, and work for reform; the same as advocacy for any species that occupies a place in the natural world filled with resources that private industries desire.

Taking “action” to protect wild horses and burros takes many forms. The actions that we can take in working for wild horses and burros fall primarily into 3 categories. The categories we advocate within align with the 3 branches of government (and what each is responsible for).

If you are one of the many advocates that are trying to become a more efficient voice for the wild ones, frustrated by “signing petitions” that never create the change you want, this article may be just what you are looking for.

Being specific about what you want to change is as important as “who and how” you ask for those changes.

Legislative branch:

Every two years we have a new Congress. Law is created, changed and funded by Congress.

The 116th Congress has just ended. The 117th United States Congress is the next iteration of the legislative branch of the United States federal government, composed of the United States Senate and the United States House of Representatives. It is scheduled to meet in Washington, D.C., from January 3, 2021, to January 3, 2023.

One example of a Congressional (legislative) “action item” are actions taken to support an amendment to a bill : Action items pertaining to the budget debate for the 2022 Appropriations (spending bill) will go into full swing in February. The 2021 spending bill debate has ended. The 2021 budget does prohibit spending for open sales to slaughter and killing healthy wild horses through amendments kept in the bill. We need more than that in amendments to the 2022 budget, we need incentives to fix management planning. (We will amp up the 2022 Appropriations actions when the new Congress takes their chairs.)

Another example of a Congressional (legislative) Action is the work to pass a new bill: The SAFE Act will need to be reintroduced and the process begun again. Even though there were enough co-sponsors to bring it to a full floor vote, the bill never made it to that vote. Under the 117th Congress we need to start again at the beginning.

Wild horses and burros are not directly tied to the SAFE Act until they are titled after adoption or sale. “Wild horse” is a legal term that applies to a wild horse (or burro) from the moment of birth in the wild, through the system of holding, until it is sold or titled (or dies on the range).

There are two (legislative) ways a wild horse or burro can be protected from slaughter: through passage of the SAFE Act (that protects all domestics) or repeal of the Burns Amendment to the spending bill in 2004. That 2004 Amendment created the title transfer and “sale authority.” (You can learn more in this article: SAFE, Burns and Budget.)

The duty of the Executive branch is to carry out the law (land management agencies like the Bureau of Land Management, BLM, are down the food chain of the Executive branch led by a “Cabinet” member).

Understanding Actions We Can Take: Executive Branch

Every 4-8 years we have a new Cabinet. Appointed by the President of the US, Cabinet members direct agency function through the Executive branch leadership.

Cabinet members are chosen by the President and then must pass through Senate confirmation hearings. Prior to confirmation most individuals will serve in an “acting” capacity. Deb Haaland (D-NM) has been chosen to head the Dept of Interior (BLM sits in the Dept of Interior) and Tom Vilsack to helm the Dept of Agriculture (Forest Service sits under Dep of Ag). Once confirmed, both will chose heads of agencies.

Example of a subject that can be addressed in the Executive branch: The Adoption Incentive Program (AIP) is a policy approved within the agency driven by a person(s) appointed by a cabinet member. NOTE: The AIP is not the only policy change put forth in this manner (that is likely illegal due to the the fact that there has been no director of the BLM for 4 years) but it is an example of a policy many of us want to see dismantled. (more in the year in review part 4)

The AIP, a $1,000 payout to anyone that adopts a wild horse, has led to massive numbers of young mustangs in kill auction. The AIP has cost the tax payer nearly a quarter of a million dollars in direct payouts and administrative costs. This payout has no safeguards to protect the horses, it is designed to empty holding pens for the accelerating roundup machine. The AIP was started through an internal decision, not an action by Congress.

There are two ways to stop the AIP using both the Legislative and Executive branch “action item:” 1: An amendment to the next spending bill that prohibits that funding being used to subsidize a new kill pen industry (a lot of kill pen operators have found they can make a lot of money in the “rescue” market off brokering these horses through social media). OR 2: Through what is called an Internal Memorandum (IM) from the next Secretary of Interior or BLM Director.

The spay plan at Confusion will impact Swasey and Conger.

Using the Judicial branch of government:

Legal Action is a way we take action to protect wild horses in the Judicial branch.

Bills (laws) are addressed through Congress. Carrying out policy to follow the law is engaged in the Executive branch. When the Executive branch (agency directions and actions) fails, the Judicial system is a distinct branch of government where we can take action.

How is litigation against management decisions created? One process that can lead to litigation begins with the “comment letter” to an EA or EIS that many of you are familiar with. Part of NEPA policy that guides actions on public lands, the “comment period” is intended to allow stakeholders an opportunity to point out areas where the agency is deficient in analysis and to propose other alternatives.

If the EA or EIS is finalized, without rectifying valid comments, litigation can ensue. (Litigation against abuses, and for access or information, is different than fighting management planning decisions.)

Example of the steps of legal action, boiled down to the basics

We have legal action at the Confusion HMA against the spay plan since October 28. First, we actually visit these areas, and revisit these areas. The first hurdle of any litigation is to have the “Standing,” the ability to demonstrate personal harm. Then we file comments to a proposed action (EA, EIS). If approved without addressing a valid concern, we can appeal through legal challenges including the courts. Our case has been delayed now due to the late filing of other orgs. A resolution through the legal system is not likely now for months. We will update you when we know more.

Legal action against spaying is one example of actions within the Judicial system. There are 3 ways to stop the spay plan using all 3 branches: Judicial (litigation), Executive and Legislative.

Spaying (an extreme and dangerous action) can also be addressed through an amendment in the spending bill that would prohibit funding the procedure. (Legislative)

Yet another avenue to stop spaying could be for the new Secretary of Interior to prioritize management planning (HMAPs) and to direct low impact measures, prohibit permanent sterilization. (Executive)

This article is intended to give you an idea of the different ways advocating for a specific aspect of protection for wild horses and burros can be addressed.

As the new Congress and Cabinet get to work, we will start posting public action items that are targeted at both short and long-term objectives.

Today we filed an Objection to the plan to manage the Ochoco horses at an AML of 12-57 and filed our comments against the plan that includes spaying at Desatoya.

Just because we do not have an active public action item where the number of comments will help create change, does not mean we are not busy with our advocacy in one of the 3 branches named above.

Public actions begin as the next Executive branch takes their seats and the new Congress begins.

Commenting on a proposed action (draft Environmental Assessment) is part of the NEPA process and we will do a piece on “how to craft comments” coming soon.