Inbox: Update, Legal Team (Pancake Court Order)

By Laura Leigh on April 3, 2024

Pancake wild horses

Our inbox is overflowing! We understand your excitement, concern and questions and are not ignoring you. We simply do not have time to answer all of you individually. We hope this article serves as a response, for now.

The court ordered that BLM has unduly delayed crafting Herd Management Area Plans (HMAP) and given them 1-year to complete one. In addition, the court also found the roundup plan deficient in analysis and remanded it back to BLM. BLM must create a transparent management plan and cannot do any more roundups at Pancake until they fix the deficits that address things like impacts to wild fire fuels after removing wild horses. This will be done at the same time as they allow full involvement in all aspects of planning through the HMAP.

Many of you have questions about the ruling at the Pancake Complex and asking what it means and about what WHE is doing.

There is a real danger in “shorthanding” any explanation about litigation. The language of the law, land use and processes is very specific and “words matter.” We have seen many, for the purposes of public relations, make claims or interpretations (of many things) that are simply not technically correct. This has led to many in the public being misdirected and it slows potential progress. This article is not a “soundbite” answer because it would be more than inappropriate to provide you with one.

On March 23 we did an update from the “legal team” to try to show you how our teams (from field, through comments and engagement, and even litigation) overlap. The earlier article also attempts to demonstrate how the cases we have active now address deficits in practice: overlapping and distinct.

Old Man, a medicine hat from the Pancake HMA.

First, let us define the Pancake Complex before we dive in to questions. The Pancake Complex spans approximately 1.5 million acres, about 30 miles west of Ely or 80 miles northeast of Tonopah, Nevada. The Complex consists of the Sand Springs West and Pancake Herd Management Areas (HMAs), Jakes Wash Herd Area (HA) and Monte Cristo Wild Horse Territory (WHT). The BLM Battle Mountain District, Tonopah Field Office administers the Sand Springs West HMA. The BLM Ely District Office administers the Pancake HMA and Jakes Wash HA. The Humboldt-Toiyabe National Forest, Ely Ranger District administers the Monte Cristo WHT. Rapidly expanding profit-driven uses have been carving up this once wild landscape at a rapid pace. Everything from sage grouse to wild horses are harder and harder to find.

Pancake

#1 Question:

What does the ruling mean?

The ruling means exactly what it states: BLM has 1 year to complete a Herd Management Area Plan (HMAP) for the Pancake Complex. In addition, the Gather-EA was found flawed in analysis and was remanded back to BLM (needs to be redone). Yes, that does mean that (now) there is no approved underlying paperwork for removal at the complex.

The ruling means exactly what it states:

“Engaging in the decision-making of an HMAP without actually preparing an HMAP could therefore deprive interested parties of the administrative review processes to which they are entitled.”

“BLM’s decades-long delays in developing and approving HMAPs have therefore been “nothing short of egregious” and clearly violate the rule of reason.”

Learning more about what an HMAP is and why it is so important would be a good step for those of you asking “what does this mean?” (HERE)

A Gather Environmental Assessment (EA) is not the same as an HMAP or HMAP Environmental Assessment (EA). The type of comments accepted (considered relevant), and issues addressed, are entirely different in the two documents. The words “Environment Assessment (EA)” don’t describe the action, but are instead a label given to describe a tier of analysis in the NEPA process. There are less in-depth tiers (like a Categorical Exclusion) and more in-depth tiers (like an Environmental Impact Statement). The words before “EA” describe what is being analyzed and then a specific process is followed to analyze the subject.

A “Gather-EA” (or the term “Population Growth Management Plan” that has become another way to say “Gather”) analyzes the impact of removal/fertility control, not inclusive management like an HMAP could. The court saw the distinction. To us, this is a huge breakthrough. (The court also found the analysis of the action of “gather” for Pancake deficient and remanded the EA back to BLM for revision.)

An unreasonable delay in agency action (creating the HMAP) is the basis for part of the ruling and you may have seen other cases similar in intention. The “Pancake case” was filed back in January of 2022. After our hearing last week, the Center for Biological Diversity filed a similar claim against BLM for undue delay in crafting management planning for National Monuments in NV. The plans mentioned in that claim have been delayed 7 years and 9 years (respectively). The cases address similar points of law.

In the case of Pancake, we have been waiting 38 years for the herd management area plan. Wild horses and burros have been on BLM’s back burner for decades as they continually prioritize removals to suit planning that is done for everyone else and relegate participation in wild horse/burro decision-making to one subject: population growth suppression without ever addressing disclosure of real data, defining the goals for the herd beyond a number reached without any data or equation, or any other potential management action.

But, don’t you have a lot more work to do and this really does not mean anything!? (and other criticisms framed as a question)

Of course we have a lot of work to do. Advocacy is a lifelong commitment. Wild horses and burros live on public lands that is a multi-layered reality that is always rapidly changing and complex.

There is never “one fix” in advocacy for anything that lives and breathes on public lands. Anyone that claims they have this “magic wand” is akin to a snake oil salesman claiming their potion can cure all your problems from a headache to cancer or they just provide you with a “wish list” without any real plan to obtain the things on the list.

Don’t worry, WHE understands the strategic nature of advocacy and put in motion many pieces to address additional factors long before we saw this particular ruling. We have been on the frontline for over fifteen years and know the work does not stop, ever.

As simple as we can make it: BLM has equated “management” with “population growth suppression” for far too long. Heck, how do you think environmentalists would respond if plans to “protect” (shoot) sage grouse included only comments and documents addressing hunting and not how to manage decreasing populations and habitat preservation? Or think of BLM simply removing cattle from a range without an Allotment Management Plan (AMP). Being able to comment on a Gather plan which only addresses removal and fertility control and is NOT public participation in management goals and decision-making. The management document, the HMAP, is neglected and we need to rectify this deficit.

Please read “What is an HMAP (why it is so important?)” and that will answer a lot of questions.

Will this ruling impact other herds?

Yes. Just like any court ruling it can impact other decisions BLM makes for other herds and impact other litigation.

Our Ninth Circuit ruling on First Amendment has been widely cited and even called the “Gold Standard” on the First Amendment in rulings in other courts even outside the scope of “wild horses.” Journalists in similar situations have benefited from our case. This First Amendment case was also used widely to help impact litigation on surgical sterilizations and the need for transparency.

Every court ruling (pro and con) impacts everything else you can think of and even things you might not imagine.

BLM says that they are reviewing the ruling and have no comment. Are they not going to comply?

What BLM probably means in their statement to the press is that they are reviewing the ruling to decide if they are going to appeal to the Ninth Circuit. There is a timeframe of 60 days for either party to Appeal (continue the court battle in the Appeals Court). If a ruling from a district court can be shown to be flawed in interpretation and analysis, a ruling can be appealed to a higher court (the highest court is the U.S. Supreme court). However, the district court judge (in this case) even ordered additional briefing on the issues to fully analyze the issues at hand. An appeal can only include the record argued in the lower court. Appeals are very time-consuming and expensive. If you lose an appeal there is also a risk of harsher censure and precedent. Appeals are never undertaken lightly.

BLM is also probably reviewing the ruling to determine if any internal directives may be needed to help them comply with existing law to avoid wasting time and resources on future litigation. We hope this is the review they are engaging in.

We have always noted that the Secretary of Interior could issue a simple Internal Memorandum to direct each district to begin addressing the decades-old backlog in HMAPs. BLMs own report to Congress in 2020 states: “Every major management activity that occurs on HMAs starts with the NEPA process. Herd Management Area Plans (HMAPs) summarize the management goals for an HMA and the anticipated actions required to achieve those goals… ” BLM has been including HMAP creation in funding requests to Congress for a long time and claiming they are doing them. BLM has gotten the funding and we have not seen any scoping processes begun for real HMAPs.

It would be a really good idea if BLM, itself, took some initiative to rectify this deficit.

Final Note:

We know how frustrated all of you are. Please remember the danger is real when you try to shorthand complex land use processes and law for social media or try to compare any measure of progress to a “magic wand.”

However, please rest assured, we know in our hearts just how important this ruling is for all of our herds and to help the public actually gain some equity in process.

A door closed to advocates to address actual management planning has finally opened. This crucial tool to outline goals, objectives, and how to reach them, has been recognized.

We are simply elated.

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.