Tools In the Toolbox (let’s take a look at tools never used)

There are “seasons” in advocacy where I do not get as much time on the range as I would like. So the visits I do make are not only precious, but throw me deep into thought. Join me? (Musings: LLeigh)

BLM is pumping out a bunch of EAs around the West trying to find ways around actually doing Herd Management Area Plans (HMAP) to comply with the legal precedents we set at both Pancake and Blue Wing (that show this planning was illegally delayed for decades). So we have to get comments in on the new ones to set up litigation potential as we file briefing in active cases from Stone Cabin in the Ninth Circuit, round two at Pancake, try to stop Devil’s Garden from being hit again (we need to get that EA remanded), Callaghan Complex (a huge boondoggle targeting more wild horses than any other plan) and of course Carter, Buckhorn and Coppersmith.

Carter, one of the most unique herds in the entire country (based on DNA analysis) is truly threatened with functional extinction this fall. Carter Reservoir Mustangs, Inc. (CRMI) and Wild Horse Education have partnered up and are in court… now. The Preliminary Injunction motion is one of the largest we have ever filed as the Judge declined to rule on any of BLM’s Motion to Dismiss (all or part) our case that challenges the entire framework the current plan sits upon dating back to the 1980’s. This case really stretches your “brain muscles” as you articulate the facts.

If you do not want to read the full article for context, you can scroll to the bottom. I created a one-page sheet that outlines unused “tools in the toolbox” for you to use every time you hear our opponents use that phrase to try to gain open sales to slaughter. I hope this will be helpful as you reach out to lawmakers. You can find it in the pdf reader at the bottom of the article or download it HERE.

Being out on the range helps us create up-to-date rebuttals for the repetitive and memo-driven types of arguments BLM uses in court documents. But then I come back in and cannot “exercise” my mind in nature. I get “chained” back to this computer having to try to stretch my ability to articulate arguments and rebut the rhetoric that has taken the place of facts. It gets tedious.

The following article is just my brain creating an warm-up exercise before I dive into the next review of a brief our lawyer will be sending me this afternoon for Callaghan. This article is literally representative of the “thoughts in my head” when I am chained to this keyboard. 

I am getting so tired of the cycle including this childish “we want the original tools back blackmail” from the anti-wild horse faction as they try to assert that somehow this statement makes them “know more” than “dumb advocates.”

“Tools in the toolbox” is a phrase that really only means one thing to the anti-wild horse and burro faction: open sales to slaughter. 

Burns Amendment: from prohibited slaughter to legalized sale (open sales to slaughter was NOT part of the original law)

For 33 years after 1971, the Act’s prohibition on commercial sale and processing meant selling protected animals into slaughter channels was illegal. That changed on December 8, 2004, when Section 142 of the FY2005 Omnibus Appropriations Act (Public Law 108-447) — a rider attached by Senator Conrad Burns — added a new § 1333(e) to the Act.).

The new (Burns) language directed the sale “without limitation” — explicitly “including through auction to the highest bidder” — of any excess animal that is more than 10 years of age OR has been offered unsuccessfully for adoption at least 3 times (16 U.S.C. § 1333(e)) OR any animal BLM determines at it’s discretion is “sale.” And, most importantly, it pulled the keystone: any animal sold under the provision “shall no longer be considered to be a wild free-roaming horse or burro for purposes of this chapter” — stripping the slaughter prohibition from the animal the moment it is sold (16 U.S.C. § 1333(e)(4).

A 1971 protection statute was turned inside out by appropriations-bill language most Americans never saw. Several attempts were made to immediately repeal the amendment but died in the same committee Burns held control. A  2007 House report later confirmed that more than 50 wild horses were slaughtered as a direct result of the Burns rider before it could be defunded (House Report 110-93).

This is the heart of the counter-narrative. When opponents say they want the “original tools” back, they mean the Burns sale authority.

But that authority was not in the original Act.

It was grafted on 33 years later, through a budget back door, to do precisely what Congress had outlawed in 1971. Internal BLM controls since 2005 (buyer affidavits not to sell to slaughter, a four-animal limit) are policy, not statute, and they have not always held. Slaughter was never the tool.

Note: One of the organization WHE partners with, Rewilding America Now, has sent a request to the House Wild Horse and Burro Caucus to Audit the Sale Program. They have an option for members of the public to add their names. You can click HERE to head to their website and add your name. 

Principal use and “minimal feasible” interference were original tools. There were also other tools immediately codified into law like removal of livestock, repatriating lost territory, re-evaluation of boundary lines, etc. 

Let’s talk about some of the real original tools.

The tools never used…

Fifty-Five Years Later: What If We Honored the Original Promise of the Wild Free-Roaming Horses and Burros Act?

The promise

In 1971, Congress passed the Wild Free-Roaming Horses and Burros Act and declared wild horses and burros “living symbols of the historic and pioneer spirit of the West,” to be “protected from capture, branding, harassment, or death” (16 U.S.C. § 1331–1333). The statute did not create a disposal pipeline. It created a protection regime built on three commitments that still sit in the law today: manage these animals as “components of the public lands where they are found, as an integral part of the natural system”; keep “all management activities at the minimal feasible level”; and do so to “achieve and maintain a thriving natural ecological balance” (16 U.S.C. § 1333(a)–(b)).

For more than three decades, that protection had teeth. The Act prohibited selling protected animals or processing them into commercial products, and where adopters tried to take title in order to send animals to slaughter, courts shut it down. In 1987, a ruling in the court of Judge Howard McKibben held that while an animal retains its wild-horse status it cannot be sold to slaughter, and BLM cannot grant title to people who express a slaughter purpose. A 1997 consent decree before the same judge — settling a Fund for Animals suit that followed an Associated Press investigation — made it a federal crime to seek title in order to sell animals for slaughter (Deseret News, 1997). The bright line was commercial slaughter, and BLM employees who crossed it ended up in court.

This was a public-trust framework: animals placed under federal protection, not surplus stock to be moved through a commodity market.

Below: After failing to a stallion to let him steal a mare, Valentino came over to us and simply took a bit of a dust bath where the dust from his roll made it’s way to my glasses. I think he had figured out we were not a threat and a “safe space.”

The sleight-of-hand: how “range” and “principal use” were narrowed

A “tool in the toolbox” is principle use. 

Here is one example of how the statutory text matters — and where the real erosion took place, not in Congress, but in the agency’s quiet reinterpretation of words Congress had already written.

The 1971 Act did not leave “range” undefined or bare.

Public Law 92-195 defined it precisely. Under 16 U.S.C. § 1332(c), “range” means “the amount of land necessary to sustain an existing herd or herds of wild free-roaming horses and burros, which does not exceed their known territorial limits, and which is devoted principally but not necessarily exclusively to their welfare in keeping with the multiple-use management concept for the public lands” (16 U.S.C. § 1332). Read it carefully, because every clause does work. Range is (1) the land necessary to sustain the herds that existed in 1971; (2) bounded by their known territorial limits; and (3) “devoted principally but not necessarily exclusively to their welfare” — expressly within, not against, multiple use.

That “principally but not necessarily exclusively” language is not a separate, optional power tucked into some discretionary sanctuary authority. It is built into the definition of range itself. Congress’s instruction was that the land needed to sustain the existing herds, within their known limits, be managed principally for their welfare as part of multiple use. The principal-use standard was the rule for the herds’ range — the default, not the exception.

This is exactly where the sleight-of-hand happened. There was no public process, no act of Congress, and no rulemaking with notice and comment that redefined this statutory “principally but not exclusively” to apply only to a tiny set of formally designated, capital-R “Ranges.” Yet that is precisely what the agency did. Through internal interpretation, it treated the principal-use command as if it reached only the four Wild Horse Ranges ever designated — and treated everywhere else the herds actually lived as ordinary multiple-use ground where horses and burros are a residual claimant behind livestock. The regulatory gloss followed: Herd Management Areas “may also be designated as wild horse or burro ranges to be managed principally, but not necessarily exclusively,” for the herds (43 CFR 4710.3-2). With one word — “may” — a statutory standard for all the herds’ range was converted into a discretionary label the agency almost never applies. That is the political wrangling: the intention of the 1971 Act, minimization of horses and burros on public lands, dressed up as a definition.

The damage compounded from there. Most herds were administered not under the statutory “range” standard at all, but inside Herd Management Areas — a category that does not even appear in the 1971 Act, an artifact of the 1978 Public Rangelands Improvement Act’s inventory-and-AML directive.

The geography shrank: the roughly 329 herd areas mapped in 1971 have been winnowed to 175 HMAs covering about 25.5 million acres (BLM, March 2026; BLM Program Maps). That is roughly 10–11% of BLM-managed public lands, set against the agency’s ~245 million acres. The land Congress defined as devoted principally to the herds’ welfare was quietly redefined down to a sliver, and even the sliver was stripped of its principal-use standard.

Inside even that small fraction, wild horses and burros were never managed as a principal use. The mechanism is documented by the National Academies: BLM subtracts the forage allocated to existing livestock grazing privileges first, then divides the remainder among wildlife and horses (National Academies, 2013). The result is an equine forage share that is tiny. In Nevada, the wild-horse AML converts to about 153,732 animal-unit-months against roughly 2 million livestock AUMs — about 7%; in Arizona it is closer to 3%, in California about 5% (Wild Horse Education). A Public Employees for Environmental Responsibility analysis found livestock outnumber wild horses and burros on public lands by more than 125 to 1 (PEER). “Low AML” became a policy floor — an administratively convenient number that keeps removals flowing and holds the herds near the edge of genetic and demographic viability.

The “low AML” construct: below the “emergency” number that drove the 1971 Act

Before working the math, look at the number BLM is actually driving toward — and measure it against the one Congress faced in 1971. When Congress passed the Act to rescue herds it described as “fast disappearing from the American scene,” the wild horse and burro population stood at roughly 26,785 (Congressional Research Service). That was the emergency: a number Congress judged so low it warranted federal protection by unanimous vote. By a striking coincidence, that figure sits almost exactly at today’s high AML — the national maximum of 25,592.

But BLM does not manage to the high AML. It manages to “low AML” — an administratively convenient floor it has never disclosed the science for (Wild Horse Education, “Bottom Line: AML”). The national low-AML target is just 16,360 animals — roughly 14,000 wild horses and 2,000 burros in the entire country.

That is about a third below the very number Congress found alarming enough to require emergency protection in 1971. The agency then declares any animals above that floor to be “excess” and “over AML” — triggering removals — from a baseline lower than the one that justified the Act in the first place.

The Secretary has the authority to move toward principal use under the original law. Instead, an asserted internal discretionary directive choice drives the herds a third below what Congress deemed a vanishing remnant in need of rescue.

Evaluating a principle use, where the legal authority already exists, would save a lot of money. A lot of money. According to research we noted earlier by PEER, moving to a principle use would also move the needle closer to Thriving National Ecological Balance. It is an original “tool in the toolbox” entirely forgotten.

You can play devil’s advocate against the “give us all the tools back” crowd — but choose the real original tool.

Suppose we simply applied the principal-use standard Congress wrote into the statutory definition of “range” — devoted principally but not exclusively to the herds’ welfare within multiple use — to the HMAs that remain, instead of the agency’s after-the-fact reading that confined it to a handful of designated Ranges.

Instead of treating wild horses and burros as a residual line item in “multiple use,” we would set AMLs on a principle-use forage metric: at minimum, wild horses and burros are allocated 51% of the available forage within their HMAs. 

• 51% is a floor, not a ceiling. On ranges where horses and burros were historically central, true principal use might be 70–80% of forage. 51% is simply the legally and rhetorically defensible minimum — it still leaves nearly half the forage for wildlife, livestock, and ecological needs.

This is not “horses/burros everywhere.” It is rebalancing inside roughly only 10–11% of BLM-managed land. That is, by definition, multiple use.

Below: “Doing the math” on what AML within existing HMA boundary lines would look like on a national level if the original definition of “range” applied to HMAs and “principle use” were then limited to only 51% of forage on 11% of public lands (currently livestock has over 80% of the forage in these areas as well as all the rest of grazing land in the US.

The numbers in the chart above are all legally defensible under current authority. Just tipping the principle use scale on 11% of public land one percentage point over half results in an AML range of about 109,000-217,500 (depending on where actual AUM allocations sit in HMAs today).

So when BLM says “what the range can sustain” remember two things: They do not really have any data to support that assertion and what they really mean is that we CHOOSE to to prioritize livestock (we are not legally required to) on wild horse and burro HMAs exactly as we prioritize them where there are no wild horses and burros. (Note: The Wild Horse and Burros Act pre-dates FLPMA where the term “multiple use” was born. FLPMA expressly states it does not derogate existing provisions of law. The authority for “principle use” still stands under the 1971 Act, they just do not choose it.

What this would mean for removals, holding, and cost?

The most striking result falls straight out of the table: even the most conservative version (if wild horses are actually allocated 12% of existing forage today and not the 6% many ranges actually show) of a 51%-floor scenario sits above today’s entire on-range population of 85,466. 

Removals would stop — for decades. If the legally grounded AML is higher than the population already on the range, there are no “excess” animals to remove. Instead of chasing a low-AML system that perpetually declares an overpopulation, management would let herds occupy the territory the Act contemplated and grow toward a meaningful ceiling. A number that would actually represent a recovery the 1971 Act claimed to address. 

Holding costs would collapse over time. BLM currently warehouses 58,025 animals off-range (May 2026), and in FY2024 spent $101 million — 66% of its $142 million program budget — on off-range holding alone, against roughly $8 million on gathers. With removals halted, no new animals enter holding; as the existing held population ages out, the single largest line item in the program bends down and then falls. The warehouse empties instead of filling.

Room for natural regulation. With larger, more robust herds occupying full territory, natural processes — predation, competition, drought — have more room to operate. And because the livestock footprint inside HMAs would shrink under a 51% floor, the central justification for killing native predators inside those boundaries — protecting domestic livestock — weakens (Western Watersheds). This is a managed system of multiple use with a true ecological balance goal, not a free-for-all.

Could occasional removals meet adoption demand?

Take a 20-to-25-year view. Once herds recover toward the new AML, any subsequent management would be about skimming a small annual surplus, not crisis-driven mass gathers. Model that surplus at a conservative 2–5% net per year (the residual after fertility control and natural regulation), and compare it to BLM’s recent placement capacity of roughly 10,000 animals per year through adoptions and sales.

Yes. There would not be any need for mass removals and even if national AML were over 200,000, the largest potential placement need would not exceed 8,000 per year, the log term holding and adoption need of today. If BLM began skimming small numbers before exceeding the new AML, the projected demand would not exceed over 2000 per year, far lower than the numbers of today.

Multiple use and the order of the laws

Critics invoke “multiple use” as a trump card, as if the 1976 Federal Land Policy and Management Act erased the 1971 Act. It did not. FLPMA directs BLM to manage public lands under “multiple use and sustained yield,” but courts read FLPMA and the Wild Horses Act together — BLM balancing competing uses through Resource Management Plans, not subordinating one statute to the other. Crucially, multiple use does not require that every use dominate everywhere. It means a mix across the landscape — some places managed primarily for one value, others for another. Allocating wild horses and burros a principal forage share on the 10–11% of BLM land that is the herds’ range — the land Congress’s own definition devoted principally to their welfare within multiple use — is the very definition of that mix, not a departure from it. Nothing in FLPMA repealed the 1971 standards of “minimal feasible level,” management “as components of the public lands,” and “thriving natural ecological balance.”

The litigation “belly-ache”

Opponents complain that advocates litigate.

What litigation actually does is peel back comfortable myth — exposing how AMLs were set, how boundaries were drawn, and how budget riders and internal memos narrowed the Act without public process. Litigation creates stepping stones to reach the goal of transparent and fair management planning and to stop the abuses of the system that have been historically corrupted to villainize and minimize wild horses and burros. As long as this continues, we must continue to file.

The pattern we fight against runs in one direction: from lifetime protection against commercial slaughter and a statutory principal-use standard written into the very definition of “range,” to the quiet, process-free reinterpretation that shrank that standard down to a handful of designated Ranges and redefined where horses “belong” lumping them into “sub” categories and stripping protection, to the Burns rider. It runs through AMLs set by agreement, not science, and boundary lines set in ways to satisfy livestock, not representations of the basic ways wild horses and burros use the land. None of it was openly debated.

So when opponents scream “tools in the toolbox” you can respond (fully within the law) by bringing up the very real and lawful tools of principle use and others. It makes perfect fiscal sense. (pdf at the bottom of the page)

We will keep litigating, pulling back the curtain and taking concrete steps to change this one-way narrative that continually takes everything from wild horses and burros and never, not one, gave them anything in return. Heck, our wild ones still do not have an enforceable set of welfare rules after 55 years of the law intended to provide for their welfare.

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We need your support to keep our teams engaging lawmakers, our team fighting in the court, our team ready to run the roundup schedule. Every mile we travel to cover roundups or assess a herd, every court case we bring, every win, every action we take is only possible because of your support.

 

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One page of never used “tools in the toolbox” BLM could choose to use today. You can download HERE.