Reveille

This time of year our inbox explodes with questions ranging from engaging your lawmakers over the spending bill to tracking captives in holding. The most frequent questions we receive concern roundups. Over the next few days we will be publishing additional articles to cover the questions coming in.

Pointing fingers at a roundup: Who is legally responsible? 

As helicopter roundup “season” is set to begin again in a few days one of the questions we get a lot is about legal responsibilities. A lot of finger pointing happens to shift blame when public scrutiny rises. In a nutshell: BLM personnel are responsible for it all.

As our team gets ready to head into the field to do independent welfare assessments and engagement. Sometime we do need your help to impact situations unfolding in real time. It is important for you to understand so when we all come together as a “team,” actions do not get misdirected.

Humbolt HA “zero out.” Wild horses being driven past domestic cattle

How a helicopter roundup is legally structured while it is happening — and why BLM cannot hand the wheel to the contractor

Once the schedule is set, the contract is awarded, and the helicopter is in the air, a different question takes over: who is actually responsible for what happens out there? Who decides how many animals are captured? Who decides where the helicopter flies and where capture happens? Who decides what counts as “humane,” when to stop, and how much access the public gets to watch?

The answer, under the law, is consistent and uncomfortable for the agency: the federal government is the responsible party. Not the contractor. The Bureau of Land Management (BLM) writes the plan, sets the boundaries, and is legally accountable for what occurs in the field.

Too often, in practice, BLM behaves as though it has handed the controls to the private contractor — and then, if something goes wrong, tries to point at that contractor. The law does not allow it to do either of those things.

This article walks through how a roundup is legally structured as it happens: the chain of command, who holds the authority, what BLM is required to direct, and what your right to watch actually is.

The federal government owns the outcome

The wild horses and burros on public lands are a public resource, managed by a federal agency under federal law. When BLM conducts a gather, it is performing a government function.

Hiring a contractor changes who is holding the rope — it does not change who is responsible. The number of animals captured, where the helicopter flies, what is “humane,” and how the public is treated are all federal responsibilities. The contractor is a vendor performing to government specifications, not a substitute decision-maker

The chain of command: CO, COR, IC, PI

To understand accountability in the field, you have to understand the communication and command structure BLM builds for every gather. A few acronyms do the heavy lifting.

• CO — Contracting Officer. The CO has overall responsibility for the contract: solicitation, award, modification, disputes, payments, and — critically — the authority to terminate the contractor’s right to proceed. Only the CO can obligate government money or make a final decision on a contract matter. The CO is usually not standing at the trap; the CO delegates technical, on-the-ground duties.
• COR / Lead COR — Contracting Officer’s Representative. This is the CO’s eyes, ears, and authority in the field. The COR (and a Lead COR when more than one is assigned) is the BLM official who administers the contract on-site and directs the contractor within the limits of the contract and BLM policy. The COR is who the public should be looking to when asking “who is in charge here?”
• IC — Incident Commander. The IC runs the overall gather operation. The IC is responsible for completion and dissemination of daily reporting and for coordinating the on-site command team.
• PI — Project Inspector. The PI works alongside the COR on inspection and compliance with operating procedures.

BLM organizes these roles into an on-site command team. Under BLM’s own internal/external communication policy, the on-site team consists of four people: the Incident Commander, the Lead COR, the Lead Public Affairs Officer, and the Lead Law Enforcement Officer. That structure exists precisely so that responsibility for the operation — animal welfare, accuracy, public information, and law enforcement — stays inside the federal government.

Everyone in that structure — Incident Commanders, Lead CORs, CORs, Project Inspectors, and the contractor crews — is required to complete mandatory Comprehensive Animal Welfare Program (CAWP) training before a gather, on an annual basis. The point of that shared training is that there is no daylight between what BLM expects and what the contractor must do — because BLM, not the contractor, sets the standard.

BLM writes the boundaries — and is supposed to enforce them in real time

The boundaries of a roundup are not improvised on the range. They are set in advance, in the documents BLM controls, and BLM is supposed to hold the line on them as the operation unfolds.

The gather EA defines the welfare and operational limits: how the helicopter may be used, how animals may be handled, when capture attempts must stop, and what happens to weak or vulnerable animals. 

In other words, the welfare “rules” and COR imposed limitations onsite are not suggestions to the contractor — they are contract terms BLM is responsible for enforcing.

A few concrete examples of where BLM holds the authority — not the contractor:

• Trap and holding sites. Every trap site and temporary holding facility location must be approved by the COR and/or PI before it is built. The contractor does not get to put a trap wherever it likes.
• How hard animals may be pushed. Animals must not be pursued by the helicopter beyond limits set by the Lead COR/COR/PI; weak or debilitated animals must be identified and handled according to the direction of the Lead COR/COR/PI.
• Roping must be pre-approved. This is the clearest illustration of the principle. Under the CAWP standards, the roping of any wild horse or burro must be approved in advance by the Lead COR/COR/PI, and it must be documented. The contractor cannot decide on its own to rope an animal. A federal official has to authorize it first — a built-in, before-the-fact decision point that the government owns.
• Stopping things as they happen. The authority runs in real time, not just on paper. BLM has long recognized that the Lead COR can suspend gather operations if actions contrary to humane-treatment expectations are taking place or an unsafe condition exists, must promptly notify the contractor of improper or unsafe behavior, and must require that it be corrected. And BLM’s CAWP policy makes the line of accountability unmistakable: “The authorized officer is the primary party responsible for immediately addressing any actions that are inconsistent with the CAWP”.

Put together, these rules describe a roundup in which BLM is supposed to be making the consequential decisions and policing the operation moment to moment — approving sites before they are built, approving roping before it happens, and stopping things that should not be happening as they occur.

BLM cannot blame the contractor — in the courtroom or on the range

Here is the legal core of it. Because the gather is a federal action governed by a federal plan and a federal contract, BLM cannot legally offload its responsibility onto the contractor. It cannot hand over control in the field and then, when something goes wrong, rewrite reality and say the contractor was in charge. The agency wrote the EA, set the AML, defined the welfare limits, built them into the contract, and put a COR on-site with the authority to stop operations. The responsibility is structural; it cannot be delegated away.

When BLM evades that responsibility — when it defers to a contractor’s preferences instead of directing the operation — it is not following its own rules. It is abandoning a duty the law assigns to the government, not the vendor.

Access is BLM’s responsibility too — and a contractor’s discomfort is not a legal reason to deny it

The same principle governs the public’s ability to watch. How much attention BLM gives the First Amendment at a roundup is BLM’s decision and BLM’s obligation — not the contractor’s.

The public has a qualified First Amendment right of access to observe government activities, and the courts have applied that right specifically to wild horse gathers. In Leigh v. United States Department of the Interior, the court held that “the public has a qualified right of access to view wild horse gather operations”.

The court did not stop at the trap sites on public land. It also held that there is a qualified right of access to post-gather holding corrals — and it flatly rejected BLM’s argument that the right disappears just because BLM hired a private company to run the facility: “This Court disagrees with BLM’s sweeping contention that ‘there is no qualified right of access’ to holding corrals that would otherwise be available for public viewing simply because BLM contracted with a private company to run the facilities, rather than establishing and managing the corrals itself.”

That language matters enormously, because it is the access version of the same rule that governs welfare: contracting out the work does not contract away the public’s rights or BLM’s responsibilities. A contractor not wanting the public around is not, by itself, a lawful basis to shut the public out.

So legitimate, narrowly tailored limits for genuine safety or property concerns are one thing. Distance and restriction used to functionally hide the operation — or denial of access simply because a contractor would prefer no witnesses — is something the courts have refused to accept. BLM has the duty to provide access and the authority to manage it reasonably; it does not have the authority to surrender that duty to a contractor’s wishes.

The bottom line

A helicopter roundup looks, on the surface, like a private contractor’s operation: it is the contractor’s helicopter, the contractor’s crew, often the contractor’s corrals.

But that surface is misleading. Underneath, the operation is a federal action, run on a federal plan, under a federal contract, with a federal official (the COR) holding the authority to approve sites, approve roping, and stop the operation — and with the federal government owing the public a qualified right to watch.

When something goes wrong at a roundup, the right question is not “what did the contractor do?” It is “what did BLM direct, permit, or fail to stop?”

The law puts the answer — and the accountability — squarely with the government. BLM cannot hand over the field and then disown what happens in it.

These are the questions we get every year as helicopter season ramps up. Knowing how a roundup is legally structured while it happens is what turns a frustrated bystander into an informed witness — and an informed witness is exactly what the law contemplates, and what accountability requires.

We take our responsibility to document roundups very seriously. We spent years litigating to gain daily access and years litigating to drive the creation of the Comprehensive Animal Welfare Program (CAWP). BLM simply stopped short of formalizing the welfare standards with the CAWP.

Our work at trap is to engage in the moment on welfare issues and maintain a record to continue the work to gain formalized and enforceable welfare standards (and in a courtroom should it be necessary).

You can learn more about what you can do to help in the fight to gain enforceable elfare rules here. 

Every court case we bring, every mile we travel to cover roundups or assess a herd, every win, every action we take is only possible because of your support.

With our deepest gratitude for helping to keep the fight moving forward.