Stallion pen from previous roundup

We understand that you are waiting to hear an update on our emergency motions for Devil’s Garden. WHE always tries to update you as quickly as possible on any litigation and not simply push the complexities to the background.

Emergency motions are not cases you are preparing to fight. Instead, you are thrust forward rapidly out of necessity.

In brief: The Temporary Restraining Order (TRO was denied, but not the more fully briefed Preliminary Injunction (PI). Both the TRO and PI can be ruled on at the same time. That is not the case here. The court wants a more extensive briefing and has not denied our claims; simply saying more information is needed as the last 7 roundups at the Garden were not litigated and he is attempting to understand the relevance in regard to this operation. A TRO would stop things before they start. A PI would return the status quo as the rest of the case is heard (any active roundup would stop and horses should be returned).

So while we are disappointed that the court feels that additional briefing is needed and the TRO denied,  we are entering the Preliminary Injunction phase hopeful that we can fully brief all of our issues and gain justice for our wild ones at Devil’s Garden. 

Important to note: The court did find that we have a likelihood of success on the merits of the claim that the 2013 gather plan is insufficient NEPA to base a roundup on. 

We are still in an accelerated briefing on this case. 

Read our full statement on where the case stands below: 

TRO Denied, But Preliminary Injunction Hearing Scheduled

A Temporary Restraining Order (TRO) is a rapid briefing seeking the extraordinary measure of stopping a roundup. Less than a handful have ever been awarded to wild horse advocates and the three we won had to do with abuses happening during active roundups.

At Devil’s Garden the Judge denied the TRO based on what appears to be the fact that we did not litigate prior roundups under the 2013 plan and the fact that with the limited time, we could not fully brief issues in a manner that would rise to the court issuing the TRO.

The court stated: “At oral argument, Defendants represented that if the gather does not occur now, it may not happen and that, due to budget constraints, they will be unlikely to conduct a subsequent gather for the remainder of the year. Nevertheless, it is important to note that as discussed above, Defendants may not ultimately be able to permanently remove horses from the Territory if they have, in fact, failed to comply with their obligations under NEPA.”

However, it is worth noting that the court found that our challenge to the legality of the roundup occurring under the 2013 gather plan holds merit, stating:

“Plaintiffs have established a likelihood of success on the merits of their NEPA claim. While it is unclear exactly how far the D.C. Circuit’s decision extends in vacating the 2013 Plan, it is clear that its effects extend well beyond that suggested by Defendants…

Moreover, it does not appear that the Forest Service has yet complied with the remand order directed by the D.C. Circuit and issued by the district court. In its order the Circuit Court expressly “direct[ed] the district court to remand to the Service for further consideration consistent with this decision.” Id. at 932. No subsequent NEPA document was ever issued by the Forest Service…

The Forest Service’s continued reliance on the 2013 Plan without completing the assessment that was ordered on remand almost certainly constitutes an arbitrary and capricious action. As such, Plaintiffs have established a likelihood of success on this claim.”

The court will allow the roundup to begin on September 2nd. However, as the roundup begins the court has ordered us to meet with USFS to determine which issues can be resolved, if any, before Forest Service must respond to our Preliminary Injunction Motion on September 11.

“It is difficult to assess at this time the scope of the harm that would result from the removal of the horses given the factual dispute between the parties regarding the current number of horses. If Plaintiffs are correct that as a result of the removal of horses “the population will dip significantly below AML, and the horses will essentially be eradicated” (Mot. at 22–23), that would almost certainly constitute irreparable injury. See Friends of Animals 2015 WL 555980, at *4. If Defendants are correct and the removal of horses is required to return to herd to AML, that may not constitute irreparable harm. See In Def. of Animals v. U.S. Dept. of Interior, 737 F. Supp. 2d 1125, 1138 (E.D. Cal. 2010). In light of the representations that the gathered horses will not be removed and can be released after the October aerial survey, however, these concerns can be addressed on briefing for Plaintiffs’ Motion for Preliminary Injunction and do not establish irreparable harm for purposes of Plaintiffs’ Motion for Temporary Restraining Order.”

A Preliminary Injunction is a longer-lasting court order than a TRO, issued after a hearing with notice to both sides, that preserves the status quo of a situation until the underlying case can be fully decided.

If successful in obtaining a Preliminary Injunction, the horses could be released back to the range immediately to preserve the herd.

On First Amendment issues the court seemed to believe we were arguing about where we would be placed and not the limits on the “when” observation would occur. On First Amendment, we believe the judge was more concerned about the government’s claim to lack of resources. When fully briefed, we will show this is not a valid reason to deny a Constitutional Right. We will include further briefing as we work toward a Preliminary Injunction and attend the mandated discussions with Forest Service in the coming week.

Our team will be working hard this week. We will be engaging the court ordered “meet and confer” and moving forwards on briefing.

We do have a team member ready to assess the roundup and she will be onsite. We will be updating the court on access issues at the operation as part of our briefing.

“Never confuse a single defeat with a final defeat.” ― F. Scott Fitzgerald

Thank you for your support and patience.

Without your support, none of our work is possible.