Wild Horse Education

Pancake (lawsuit not over)

Many of you are contacting us via multiple channels with a misunderstanding that the case at the Pancake Complex is over, it is simply not over. 

The official statement from the organizations involved (AWA, CANA, WHE) is as follows: “We remain deeply concerned about the wild horses at Pancake as BLM rushes this gather plan forward. We are reviewing the courts ruling and evaluating our next steps. We will keep working toward gaining equitable and humane management for wild horses in the Pancake Complex and elsewhere.” 

Charlie, lost his freedom at the beginning of the operation as BLM hit the complex inn the best habitat in the entire 1.2 million acre area before livestock turnout.

For those of you wanting a deeper explanation about the process involved:

The challenges are many as we attempt to move through the contradictory and dead end avenues provided by the Bureau of Land Management (BLM) to address our interests (wild horses). As all of you are aware, we are required to engage every channel that simply lands in a drawer with no response required. Then, we are faced with an avenue of legal remedy BLM says is required (the “legal Appeal” lawsuit) that BLM ignores. Then you need to race to educate both an attorney (and then federal court) if you want to try to halt an action BLM has rammed into execution and have the entire mess heard in a court of law. We have not failed to address every avenue and the challenge is still active. Wherever you are getting the information that this fight is over is not an accurate interpretation of the reality we are in. 

Yes, we filed a lawsuit and distinct and separate request to halt the action (TRO/PI). The request to halt this particular roundup was denied (this is a “ten-year EA”). These hearings happen rapidly and when the record on an issue is long, a very abbreviated version of the argument begins the dialogue on the larger issues represented in the underlying lawsuit.

Scott Sonner from the Associated Press has been following the case and updated his piece on the case reflecting that denial. You can read it HERE.

If you read simply what the article from Sonner includes, you can see some of the reasoning involved and the challenge of addressing the current system (italics).

Agents are prohibited from using helicopters to drive herds into temporary corrals from March 1 to June 1, when mares typically are pregnant and give birth. “After that, summer heat adds stress on the animals and contractor availability becomes a problem in the fall,” Smith (attorney for BLM) said.

“This particular herd is foaling now and pregnant now,” Blome  (attorney for Plaintiffs) told (Judge) Du on Wednesday. “If they had followed the proper process and monitored the herd, they would know that.”

That is just an argument on one point: the (lack of) availability of contractors during fall (when it is safer to roundup mares) and the issue of a failure to determine an actual foaling season by BLM through monitoring. This issue (foaling) is not the only assertion in the much broader underlying claim. BLM skipped doing a Herd Management Area Plan Environmental Assessment (HMAP-EA) and simply jumped to a Gather Plan Environmental Assessment (Gather EA). Foaling season in an HMA (or complex) is one factor an HMAP would determine.

If you understand the above you can plainly see in layman’s terms: Pancake is not an “abuse” case, it is an “abuse of power case” (that can cause abuse) through failures in the process.

Several of you have looked up the brief yourselves and have asked basic vocabulary questions. Not only do we have to get everyone involved to understand that the acronym “EA” is not synonymous to “gather,” we need to introduce a process, the herd management area plan, as one plainly required under law and never discussed. “EA” is just the process of analysis; BLM can analyze something under an Environmental Impact Statement (EIS), Categorical Exclusion, EA, etc. An HMAP would (most likely) be done under an EA. “EA” is just the process BLM took to deliver a “Gather plan,” just like BLM delivers most of their proposed actions. “EA” is not an elevated title for “gather.”

An HMAP would also be delivered as an EA. The vast majority of what BLM puts into any “Gather EA” should be in an “HMAP EA.” In a gather plan you cannot give input on any meaningful factor, in an HMAP you could. That is the difference between gather plan and a management plan. A “gather plan” should comply with an underlying approved HMAP-EA according to BLM (we did not make up the process).

Those of you that attended our webinars and read our articles know this is a systemic problem and not specific to the Pancake Complex. Both the issue of a lack of knowledge on basic terminology and the lack of HMAPs is a real challenge to gaining any equity in management for our herds.

Without going into any detail on this case (beyond what was written over the last few days by AP in their articles) keep in mind a few premises of determining a TRO/PI (an order to halt a roundup).

From Cornell law:

Generally a plaintiff seeking preliminary injunctive relief must satisfy a four-factor test: (1) that he or she is likely to succeed on the merits of his claims; (2) that he or she is likely to suffer irreparable harm without preliminary relief; (3) the balance of equities between the parties support an injunction; and (4) the injunction is in the public interest. The court is likely to more heavily scrutinize the factors when considering a PI than a TRO.

A balance of equities refers to a process a court applies to determine which party should prevail. It entails the court weighing such factors as public policy and the convenience or hardship to the parties in determining the fairness of granting or denying equitable relief (such as an injunction). Hardship can include factors such as the financial expenditures involved in the action a TRO or PI seeks to halt.

If you have read all of the news articles you already know that BLM essentially claimed the financial hardship due to the roundup already being in progress, the need to finish due to the high pressure demands of the packed schedule, etc., would “tip the scale” in their favor.

Part of our job moving forward is to show why the harm actually tips the other way. 

This fight is not over. 

Footnote from Leigh to BLM: Many of you know that the HMAPs have been ignored for 40 years and you needed to do them. Please, speak up. 

Our team remains on-site.  Reports HERE.

More on the fight for our wild ones in 2022 HERE.

Categories: Wild Horse Education