We are receiving numerous requests asking for an update from our legal team and NEPA team.

Before we do the update, we want to touch on how each team interacts in the system of public lands management and with our other teams.

The NEPA team provides input (comments) on the proposed plans land management agencies provide, performs research into the NEPA process to help us effectively engage those “comment periods,” and drafts protests and appeals when analysis of input is not adequately performed by federal agencies.

Our legal team overlaps with the NEPA team. “Comment periods” are the often the beginning of the litigation process. It is sad, but true, that the vast majority of the time agencies like the Bureau of Land Management (BLM) do not appropriately analyze data provided by the public or input noting flaws in analysis. “Comments” often become the basis for an appeal (legal brief) in the Interior Board of Land Appeals (IBLA) or a case filed in federal civil court.

Both teams overlap with our field teams. Data from the field is “ground zero.” This data is used to inform comments and briefing in both land use and federal civil courts. Documentation from the field helps illustrate and inform the public, lawmakers and the courts.

Yes, team members also overlap. You can think of it this way: a BLM Wild Horse and Burro Specialist is supposed to gather data from the field and historic data sets, determine what action to propose, write the draft planning (Environmental Assessment-EA) and then provide the declarations and basis to BLM solicitors (attorneys) in the event of litigation. Our team often mirrors this process for continuity and accuracy.

All of this is guided by the “3 branches of Government” that you need to become intimately familiar with as an advocate. (Article from 2021 illustrating the functions)

When we get requests asking for an update from the “legal team,” those requests focus on the engagement that team is doing in the federal district courtrooms. However, keep in mind that team is also reviewing and drafting comments and engaging in land use appeals. This time of year that team is really busy working on engagement on EAs and EISs that range from removal plans (Gather-EAs) and massive mining plans that are eating up territory and resources in Herd Management Areas (HMAs) at breakneck speed. A lack of underlying Herd Management Area Plans (HMAPs) makes gaining something like a simple water improvement to mitigate some of the impacts from mining, or changes in fencing for livestock, a dead end street. This is one of the main focuses of our overlapping teams today. We can’t have wild horses on the land if the territory they rely on is carved up without concern for how wild horses will eat or drink.

The team is really busy and we know this update is overdue.

Wild horses and burros are caught between livestock and mining, literally, in this photo from Owyhee.

Over the last month we have presented articles that delve into the subjects much of our active litigation is addressing. Many time the language of land use planning, rulemaking for policy, regulations, etc., can leave the public a bit confused. It can also make it hard to understand litigation. We have always been loathe to shorthand what we are litigating to try to avoid adding to the confusion, creating unrealistic interpretation and further hindering moving forward effectively as a collective advocacy.

These articles will help you understand each case better:

Codes and Rules (What do they mean?)

Enforceable Welfare Policy (Simplified)

Debate: Wild Horse and Burro Welfare

What is an HMAP (and why is it so important?)

Timetable Update, Federal District Court

Pancake Complex:

Primarily a case addressing the omission of actual management planning for one our last large herds that live in a place that could sustain them into the future. The omission of Herd Management Area Plans (HMAP) has led to a lack of disclosure of data and decision making on things like “goals and objectives” and the steps the agency will take to meet them and jeopardizes the future of the herd. Removal might be a tool of management if determined appropriate through management planning after analysis of options, but removal is not management.

Many of you will remember when this case was filed after a colt snapped a leg on slippery ground at the worst time of year to run horses at Pancake; timing of foaling season and type of capture method are something the public has never had any opportunity to address. Exclusive video obtained by our field team illustrates that moment (warning, graphic). This event also spurred the Wild Horse Protection Act introduced by Dina Titus that mentions this event in text.

This case had a hearing earlier this week after additional briefing on the issue was requested by the court. We expect a final ruling in the coming weeks.

On March 29 the court issued an order. BLM has 1 year to create an HMAP and the Gather-EA was remanded back to BLM for revision. (more here)

Blue Wing:

This case addresses several factors. Blue Wing is being hit with roundup after roundup all driven by a 2017 Gather Environmental Assessment (EA). No new data or analysis (or opportunity for the public to provide additional data and new scientific method) has been provided through any process. Many of you made comment on the White Mountain Decision of NEPA Adequacy (DNA) that was provided by the Rock Springs District office in Wyoming. Even though the EA BLM NV tiers to for Blue Wing is significant older than White Mountain, no additional analysis in any form has been done since 2017.

In addition, burros at Blue Wing are an example of how BLM utilizes “horse templates” to determine care; burros are not horses and are much more susceptible to capture stress. In order for the public to provide any input on care, we have to be able to assess. At Blue Wing, serious First Amendment arose as BLM provided no opportunity to assess anything, nothing. From capture and loading, temporary holding, shipping and even “short term holding” where processing of burros occurred was all off-limits. Forty burros died from capture stress in the first months post capture and none of the process was observed by the public.

This case is heading into final motions and we expect a ruling sometime in the summer months.

Antelope:

This case has a primary focus on the lack of any enforceable welfare policy. BLM has never taken initiative to create any welfare policy, even though “humane treatment” is a main tenet of the 1971 Act. It took litigation (over 5 years) to spur the creation of a “beta version” of a policy BLM calls the Comprehensive Animal Welfare Program (CAWP). The program has not proven to provide any consistency in how it is applied and there has been no actual enforcement. In order to create any enforceable policy federal agencies utilize a process called “rulemaking.” This process includes public participation. BLM needs to take their internal guidelines through rulemaking so that we can actually have an enforceable policy.

In addition, this is another area where BLM is using old environmental assessments to claim adequacy of NEPA. In fact, BLM notes a statement of adequacy but never engaged in any process of disclosure (see White Mountain in Wyoming). The EA BLM is using covers both the Antelope Complex and Triple B, an area larger than the states of Rhode Island and Connecticut combined and has been used to remove over 10,000 wild horses since 2017. New analysis and data disclosure is required.

This case is in active briefing and we expect the process to continue with resolution before the end if the year.

Stone Cabin/Saulsbury:

Filing this case became a necessity as BLM ignored underlying planning for wild horses. This is one of the very few areas that had an HMAP drafted (back in the early 80s). This HMAP noted that the “Appropriate Management Level” was “interim” based on agreements with private parties but that the district did not have enough information to scientifically address, basically, anything. The HMAP noted studies, water improvements to distribute populations and more. None of these things were ever done.

As territory in this HMA has drastically changed (including a paved highway dividing north and south), mining, livestock fencing and water pumping, the wild horses have just been removed to suit the numbers BLM noted in the HMAP and “affirmed” by simply retyping them.

The livestock permittee filed litigation to force BLM to remove wild horses.

We had to file a distinct suit to address that BLM has never complied with actual management planning, monitoring and more.

Briefing schedule on this case has been decided. We will have to update the timetable as briefing moves forward and we have a better idea of this case will proceed.

Stone Cabin is where the first official roundup (and first lawsuit) took place after the 1971 Act was passed.

It is very important to remember that litigation is never undertaken lightly. Each and every issue that lands in a courtroom represents an issue where every other avenue to address the subject has been engaged. In most cases, BLM ignores your attempts or minimizes your interest. Litigation is a serious, time and resource consuming process. However, the judiciary is a critical branch of government intended for just this purpose.

As you engage in your own advocacy becoming familiar with land use planning and how the 3 branches of government function is vital.

We hope this piece answers your questions.

Our teams are working hard to protect and preserve our precious wild ones.

We need your help to continue to document, expose, work toward reform with lawmakers and litigate. Our wild ones deserve to live free on the range and free from abuse.

Thank you for keeping WHE on the frontline in the fight to protect and preserve our treasured wild ones.