Litigation Update: Example of Disparity in Decision Making

Is there a body score chart for cows? This pic was taken in Sept after grazing in prime seasons on public lands.

When it comes to domestic livestock, BLM decision making takes a sharp 180 degree turn. This turn is not only apparent in the physical landscape (sheer numbers, fencing, water pipelines, etc.), but it is present in how they justify decisions. 

One of our active cases in the courts is an extremely simple example of the contradictions.

copyright Laura Leigh

Little black colt, Eagle Roundup, where wild horses were driven through over 2 feet of snow down into lower elevations for capture (Laura Leigh)

The Ely district of BLM Nevada approved an “emergency hay haul” due to heavy snowpack on February 13, 2023, in what is called a “Categorical Exclusion” under the National Environmental Policy Act (NEPA). (Categorical Exclusion means a category or kind of action that has no significant individual or cumulative effect on the quality of the human environment.)

WHE partnered with WLD to file against the plan. As we publish updates on our active cases (beginning with Pancake HERE), we felt this recent filing would provide some essential information to help you understand why we have to fight just to get basic management planning. for wild horses and how it always appears livestock is given “the keys to the kingdom.”

Note: There are already people even writing letters to editors of local papers claiming we should be out feeding wild horses instead of adding to the reward to catch the person responsible for shooting wild horses. Perhaps they don’t understand BLM does not allow us to do that? Only permittees get that kind of treatment from BLM staff and reimbursed by USDA if there is an emergency declaration. Why are they so mad about the reward?

Wild horse babies born in Feb. in the Ely district. These babies have to live or die based on forage left. on cow bashed ranges. BLM does not let the public feed wild horses in hard winters.

Even though snowpack in Ely was heavy beginning in December, and weather services predicted the pattern to continue, BLM waited to create a “fast-track” document until the season has nearly ended. Instead of removing livestock early as a harsh winter was underway, BLM just allowed grazing to continue. (The public has been led to believe livestock is only out a couple of months each year. More than half of existing livestock permits are year-round or nearly year-round.)

The decision would become a “Final Decision” following a 15 day protest period. In addition, “the Final Decision is subject to appeal and allows for an additional 30 days during which an appeal must be filed. A total of 45 days (15-day protest and 30-day appeal) after receipt of the Proposed Decision must lapse before the Project would be authorized.” So that means no feed could be dropped (legally) until March 30th.

The decision was sent during a time when multiple storms hit back-to-back. We received the decision after the protest period expired and crafted a fast appeal to meet the deadline. WLD is an organization WHE often works with to address livestock and reached out to them and they added to the document and we filed jointly. (Unlike the Pancake case, the appeals court does not have an electronic docket sheet we can share with you. Although a different type of federal court, one designed to be a first line for land use disputes, the processes of briefing are extremely similar to the ones in Federal Civil Court.)

Let’s take a look at the decision and the dispute.

Ely district

The decision was signed when daytime temps were in the 30’s and not “legal” until daytime temps hit 40, 5 days later hit the 50s, and no further snow was predicted. In fact, 6 days after the decision was finalized, daytime temps in Ely hit a consistent pattern of over 60 degrees by April 7 and are hitting a consistent 70 degree mark this week. Much of the existing snowpack beginning Nov 2022.

A logical question: Why did BLM wait so long? Many of you asked us if the permittees had been dropping hay all winter and a decision needed to make it legal and to get USDA reimbursement? There is some evidence that this occurred, but let’s jump to the process BLM used to approve it and why taking the time to file an appeal (and all the subsequent documents) is important.

Ely, winter roundup

The physical environment will suffer. Dropping hay into the mud and snow in the lowlands for livestock will change the landscape in those areas for years to come. Not only will the cows and sheep eat the hay, they will continue to eat the residual forage (left from last year) and obliterate any new growth that appears as the land tries to renew after winter. Dropped hay will be trampled into the mud (along with feces) and create, literal, cesspools of bacteria and potential disease. (Any barn owner knows the difference between dropping hay on frozen ground vs dropping it on thawing ground. No one cleans this slop up on public lands.) In addition, uplands stay snowy longer than the lowlands driving wildlife and wild horses down to find food. After spending money on hay and hauling it out (even though the funds will be reimbursed by USDA if the “emergency decision” is affirmed), sharing that food with the natural inhabitants of the range would be inhibited by closing gates or, perhaps, lethal methods (this is the same district where a reward has been offered when horses were shot going into winter in 2022). There are more issues we noted in our appeal, but this summary should give you an idea.

Even private livestock operators warn of the dangers of picking an area to feed livestock in the winter: “Outdoor winter feeding areas are likely to take a beating. Heavy hoof traffic and manure accumulation can cause soil compaction, erosion, and excess nutrient buildup. Allotting unfit acres for winter feeding can also negatively affect animal health and performance.” (Hay and Forage, Nov 2021)

The flaws in the decision: BLM simply checked the boxes to make this fit into a fast-track without factual evaluation of the decision. BLM does not even disclose where feeding will take place or for how long. In addition, they are using levels of policy and law to justify the decision that they deny are applicable to wild horse and burro decisions.

The decision it is pretty short. The whole thing (including title pages and 5 pages of an interested public list) is 15 pages. (click HERE)

What wild horse and burro advocates should look at is that BLM uses regulations and policy that they claim does not provide a framework they need to comply with for wild horse decisions. 

The Categorical Exclusion document states: 

Note: the Land Use Plan (LUP) does NOT state hay can be dropped. It says “salt and supplements.” 

Then they claim they comply with NEPA because the Handbook allows feeding of “livestock or wild horses and burros”:

The Proposed Decision notice uses the following to state their authority to come to this decision (a CFR):

That is basically the entire decision. In order to do the fast-track CX, they had to state this decision carries no controversy. 

Ely, winter 2023


  • BLM did not analyze feeding for “livestock or wild horses and burros,” they just fast tracked feeding for domestic livestock they claim the permittees cannot remove (even though they can haul in hay).
  • BLM did not disclose where and how long this feeding would take place.
  • BLM did not analyze damage to the range or grazing species.
  • BLM erroneously claimed this was not controversial.
  • The LUP does not state district wide feeding, it states “salt and supplements.”
  • BLM did not list which permits state winter feeding or where such feeding would not result in range damage.

In the ongoing case, BLM is not arguing the merits of our argument. BLM is simply trying to claim we have no right (standing) to bring it. 

Area of expanding livestock use in Ely, the subject of another appeal by WHE and WLD

If we toggle back to the Pancake case for a moment, the BLM uses the opposite in their decision making process: they state the Land Use Plan is the only relevant authority and the CFR and Handbook don’t matter.

BLM NEVER opened the HMAs in the Ely district to actual herd management area planning. Both the handbook and the CFR call for them. In over 50 years, we have never had a say in actual management… BLM just goes removal plans.

So which is the legal process BLM is supposed to follow to create decisions? When BLM actually does an HMAP (like for the Pine Nuts) they claim they need to do one because of the CFR and Handbook. When they approve feeding of cows on public lands they say they can do it because of the CFR and Handbook.

But when they want to remove 70% of a herd without following the CFR or Handbook… or ever opening up the parameters of an HMAP in any form, in any document or decision, they can because only the LUP means something? An LUP that does not create site-specific parameters for each herd but provides and overview of goals set in the 70s and 80s and just carried forward for decades.

If you follow the trail of the current decision justification to feed livestock because ranges were hit so hard this winter, shouldn’t BLM be closing livestock grazing to protect wild horse habitat simply because the CFR says they can?

§ 4710.5 Closure to livestock grazing.

(a) If necessary to provide habitat for wild horses or burros, to implement herd management actions, or to protect wild horses or burros, to implement herd management actions, or to protect wild horses or burros from disease, harassment or injury, the authorized officer may close appropriate areas of the public lands to grazing use by all or a particular kind of livestock.

BLM states underlying planning (such as an HMAP) would have to specifically state livestock grazing would be closed and outline the triggers for such a closure. BLM won’t open up that question by doing an HMAP, they just do gather planning instead and prohibit that discussion completely. (This is just one example of how BLM inhibits stakeholders for wild horses and burros from having a say in how an HMA is managed.)

We will continue to update you on these active cases and get updates up in the next few weeks on the multiple actions we have taken… including 2 new cases we are drafting.

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

Help keep us in the fight. Your support is what keeps all of our programs running. Thank you. 







Categories: Lead, Wild Horse Education