Many of you are seeing headlines in the news referencing the upending of the National Environmental Policy Act (NEPA) and are emailing us in a panic. The reality of broad (yet vague) programmatic change, directives to fast-track oil and gas and hard rock mining, staffing cuts, mounting litigation, is most likely accelerating everything into gridlock. We will keep you posted. 

On Thursday, what is called an Interim Final Rule was published doing away with decades of Council on Environmental Quality (CEQ) regulations, some going back to 1978. The CEQ oversees NEPA implementation and issues guidance and interpretation of regulations.

The CEQ issued a memo for “voluntary guidance.” Basically the memo says to “keep doing what you are doing,” shifting responsibility from CEQ regulations to agencies’ individual procedures but advises to maintain the status quo (and even notes active litigation and comment periods). Agencies must update their individual procedures within a year and we expect to see a lot of debate as that process occurs.

What does this mean? That is a question even agencies themselves are trying to answer.

Driving this change appears to be a desire to redefine what needs any environmental analysis and disclosure (what they can do without any NEPA) and to limit the scope of any in-depth analysis undertaken for oil and gas, hard rock mining, pipelines, the things that can cause incredible destruction and pollute the environment. This “gut” was put in place right before the next round of oil and gas sale leasing appearing to be directly related to gutting environmental review.

Will public comment still be required on things like roundup plans? At this time the plain answer is “yes.” However, as agencies update individual agency procedures over the coming year, they could claim that no NEPA (Environmental Assessment or EA) is needed at all for a roundup.

Things like the Euthanasia Policy are subjects BLM has prohibited the public from commenting on. Instead, BLM has historically relied on their internal CAWP and guidance from Congress prohibiting the euthanasia of healthy animals. Yes, internal guidance could change (and the gutting of program funding) and a directive could come down to kill or sell off wild horses and burros in off-limits to the public facilities. It could be attempted with no public notice. We are watching closely. (More HERE)

Please keep in mind:

Active litigation and recent court rulings set precedent that has not disappeared and it stands as a foundation to launch the next case (and the next). This upheaval in the interpretation of regulations brings litigation to the center stage.

The acceleration of sweeping changes in basic regulatory interpretation, vague and conflicting guidance, gutting of staff, the expected flurry of legal challenges, is more likely to create gridlock than any rapid change in practices. 

There are active public comments periods you can participate in right now.

Last year we won two lawsuits demonstrating that actual management planning, Herd Management Area Plans (HMAP), had been illegally withheld for decades. Instead, BLM skipped directly to completing “Gather Plans” that are a different document. The Court recognized that that these are two different documents and that a management plan is not the same as a gather plan.

In the first court win at Pancake, the court gave the BLM a year to complete the HMAP. BLM has completed “scoping” and released a draft “Gather and Herd Management Plan.” Basically the BLM is trying to simply pass off a gather plan as an HMAP and, if BLM finalizes the draft with no changes, we are ready to take them back to court.

As you look at the open comment periods for other herds, you will see the overlap in direction: BLM clearly recognizes that without an HMAP they face a situation where they will lose in court. So BLM is beginning to engage in the beginning of crafting HMAPs and then shifting to the only thing they seem to know how to write, gather plans. The way BLM is handling HMAPs is more like an invitation to litigate instead of any attempt to create an actual management plan.

OPEN FOR COMMENT

Scoping is open for the Jackson Mountains HMAP. Deadline, March 4. We did an article explaining what an HMAP is and have sample comments HERE.

Scoping is open for Stone Cabin/Saulsbury HMAP. Deadline, March 10. BLM labels the page “Management Evaluation.” The page is scoping for “HMAP” creation. In fact, there is an HMAP for Stone Cabin finalized in 1983 that the BLM has not complied with nor updated. We have active litigation in this area now demonstrating how BLMs 2023 Gather EA does not comply with the existing HMAP. We filed this case to defend the herd as the permittee filed to force a mass removal. The permittees portion of the “Stone Cabin fight” lost in court. We expect our case addressing the failure of BLM to comply with the existing HMAP, and failure to update the HMAP, to win. We believe BLM believes it will as well and has begun the Scoping for the HMAP. We are working on our comments and will write another article as soon as time allows.

Bullfrog Draft HMAP and Gather Plan. Deadline, March 24. Here again, BLM is creating one document that is basically a gather plan adding the words “Herd Management Area Plan” to the title. Current regulatory guidelines states that BLM can craft the two distinct documents concurrently, but the purpose and need for each action is distinct and they are simply not one “thing.” We did submit Scoping comments and a few of them were addressed by BLM in the draft and the majority were not. We will write an article and give you sample comments as time allows.

Of note: On page 14 of the plan out for comment, we may see the first indication of changes on the horizon. Instead of simply noting the Euthanasia Policy, the EA states: “2.4.8. Euthanasia or Sale without Limitations Under the WFRHBA, healthy excess wild horses or burros can be euthanized or sold without limitation if there is no adoption demand for the animals. However, while euthanasia and sale without limitation are allowed under the statute, for several decades Congress has prohibited the use of appropriated funds for this purpose. If Congress were to lift the current appropriations restrictions, then it is possible that excess horses or burros removed from the HMA could potentially be euthanized or sold without limitation consistent with the provisions of the WFRHBA.” 

Even if you do not have time to craft comments for active NEPA planning (the things above), please make one call to your lawmakers.

Call the Congressional Switchboard at: (202) 224-3121 and ask to be connected to your representatives. Tell them: Public lands must be left in the public domain and not given away or sold. Wild horses and burros on the range and in holding must not be killed or sold to slaughter.

This call made while their offices are receiving a flurry of calls about other issues in the headlines, lets your lawmaker know that even under this chaos, wild horses and burros (and the public lands they call home) remains important issues for the public.

There are moves to gut funding (even funding designated by Congress) for caring for wild horses and burros in holding and fund killing healthy animals or sell them off without limits (slaughter). There are also big moves to transfer or sell public lands into private hands. If land is transferred and is no longer under federal jurisdiction, then there are no protections under law for the wild ones at all. Learn more HERE.

We need your support to keep our critical work alive. We must keep active litigation running to conclusion and launch new cases as needed to keep a strong line of defense. 

All of our work is only possible with your support. We thank you for keeping the critical work we do at WHE running for our wild ones.