Wild Horse Education

Litigation: Pancake Update

Pancake roundup

Many of you are writing asking about the cases WHE currently has active in the courts. WHE has over a dozen active cases at this time in various stages in multiple courts that address public lands issues. Over the next few weeks we will provide updates on as many of them as time allows.

Why litigate? Litigation can be used as a tool to bring about changes in law, policy, and practice. Litigation can have a broad impact far beyond the parties involved in taking the case. Law (and justice system) functions to advocate for change to better protect public rights and justice.

Sometimes the outcome can carry unexpectedly broad implications, when neither the claimant nor the defendant intended at the start to create a precedent or generate public debate. The fight to gain daily access to view roundups and assess the condition of captured wild horses is one such case. Leigh v Salazar was cited as a “hallmark” in a ruling to stop the arrest of journalists during the Portland riots. Even though access has once again degraded, the ruling stands as one to build upon to continue to the fight to protect the rights of the public to view the actions of the government. Another example involved a wild horse hit with a helicopter at Triple B that kicked off the fight to gain the first humane handling policy for all wild horses and burros nearly 45 years after the Wild Horse and Burros Act (to manage wild horses and burros humanely) was made law.

Protecting the rights of one (person, horse or herd), can protect all. 

In the 1970s, as environmental law was in its infancy, there were many organizations founded to take on the task to protect water, air, species. For wild horses and burros, the effort has been piecemeal with the faces of those willing to litigate changing over the decades (and changing agendas).

We at WHE see the judicial system playing a vital role in the 3 branches of government and remain committed to continuing to seek justice for our wild ones.

Pancake Background (nutshell):

Many of you are writing to us asking about Pancake. You have been following this amazing herd with us for over a decade as we watch expanding industry rapidly encroach into the best habitat, critical habitat for wild horses, in the complex. Using the same data poor framework BLM established for this complex in the late 1970s they continue to carry forward, the public watched about 70% of the existing population removed, without every getting a say in how the wild horses in the complex would be managed. Removal is a potential tool of management; a removal plan is not a management plan.

After years of making many attempts to gain these Herd Management Area Plans (HMAP), as noted in both the handbook and the Code of Federal Regulations (CFR), we have had to go to the courts to sort it out. Having no voice in actual management planning is a frustration we share with you.

First, WHE filed in the Interior Court of Land Appeals (IBLA) which is the first step to challenge an agency decision. BLM did not wait for that process to run its course and scheduled the roundup with little notice. (Yes, in wild horse decisions this is not uncommon; with livestock decisions where a permittee files, this practice is unheard of).

On the first day of the roundup a colt snapped his leg. This unnecessary death (an HMAP would also be able to determine actual foaling season and safe times for capture. if it were justified by range data triggers) brought public outrage. With that outrage the support came to jump up to federal court. With the help of CANA and AWA, a plea to the federal court system was made. But the time to get everyone informed and a brief written was short.

Many people have an assumption that the timeline of court cases follows the ones you see on television, they don’t. There is a lot of work involved.

There were 3 deaths the first day. A second foal died and BLM never noted that death in the public update while limiting access to view temporary holding. 

Pancake litigation

Litigation is public information. Civil cases filed in federal court have documents loaded electronically online, cases in the land appeals court do not.

A list of motions and schedules is called a “docket sheet.” An electronic docket sheet links to all filings. You can see the docket for Pancake HERE. 

A Complaint is where you outline your case before the court. The Complaint at Pancake begins:

Some highlights of the “HMAP” argument contained in the Complaint so you can see some of our baseline:

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The BLM files a Reply. When you read the format of their document, perhaps you can see why courts are needed? What does the “plain language” of the law mean in this instance? How would any reasonable person interpret law, regulation and policy considering the nature of our grievance? You can see in our clips above the “plain language” and that BLM does not do HMAPs. Below, you can see what the beginning arguments look like and why courts are often needed (for all public lands disputes). 

Each document filed would include all declarations and supporting information. The process is extensive.

In order to fully argue your case, you need all of the information surrounding a grievance. In addition to reviewing the available administrative record, you may know there is additional (or should be) information. At this juncture you ask for information that may be left out of the administrative record, generally called “Discovery.”

In this case, when multiple inquiries have been made to BLM about crating an HMAP for Pancake over the years, what decision making process was had not to do them? What decision making process was had to determine sending wild horses directly from the range into an off-limits facility in another state instead of sending them to an open to the public facility? What discussion was had to determine access to view operations and processing on the range? Were those discussions appropriate or intended to limit participation in management decisions or inhibit the ability to assess handling? The deliberative discussion and any data would be pertinent to BLM making a determination to skip doing an HMAP, sending wild horses into off-limits facilities and not providing a timely date for the public to assess their condition, etc. BLM argues that they don’t need to add any new information and courts should defer to their “expertise.”

The next step is to review the record (and any additional materials), collect additional documentation from our records and create the final argument. This step requires a lot of attention and where litigation for the Pancake complex sits today. 

The vast majority of our herds sit with no actual management plan (have never had a management plan) as roundups hit historically high levels, climate change and rapidly expanding industry forever impact the ability of our herds to survive into the future.

Cases like the one at Pancake are vital. A law or regulation may give the impression that something is being carried out in practice. If you read the law there is a logical assumption that data-driven transparent and inclusive management planning is taking place. Even in the late 1980’s BLM stopped reporting to Congress on progress of planning and were never questioned (even though they continued to include HMAPs in budget requests). This is where the courts become critical.

We remain committed to continuing to seek justice to protect our wild ones from abuses and to see them protected for future generations. 

Update on captives: We were able to locate 3 medicine hat horses and get them placed only after an extensive search of 2 facilities and begging to get BLM to look at a 3rd that they would not let us get into. But, we were also looking 6 others, including a mare and foal, that had home offers. By the time we got into the facility, BLM had already shipped them off to events and other facilities where we could not track them because we were never able to obtain a tag number. We do not know if the horses made it safe or are among those that died in the first six months post capture.

On range: Industry is starting to expand into the prime habitat in the complex. Both mining and livestock expansion have been approved before any discussion to identify critical habitat for wild horse use inside their designated territory (HMA). We found “old man” and fragments of the herd still living on the range… the need to protect our wild ones that are still free solidified.

In our next update on our legal actions we will discuss a livestock where BLM decision making is very different.

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Categories: Wild Horse Education