Beautiful blue-eyed, slate colored wild horse at Salt Wells in Wyoming where roundup has been delayed until after Oct. 1, the new fiscal year
We are running a series of articles titled “Inbox.” In this series we answer questions we receive from the public: 1) How a roundup gets on the schedule 2) Who is responsible for how a roundup is done.
Inbox #3: Cart Before the Horse
“Does BLM Ever Analyze Anything?” — Why the Public Is Losing Faith in Public Lands Management, and Why Litigation Keeps Becoming the Only Answer
A look at predetermination — what it is, why it is illegal, and why, from Red Desert to Eagle, the public is being told its voice is “outside the scope”
It has become the most common question we hear. It arrives in emails after a scoping period closes, in messages after a comment portal goes dark, in the room after a hearing ends. People have read the documents, written thoughtful comments, cited the agency’s own data — and watched all of it disappear into a paragraph that says the issue they raised is “outside the scope” or “within the agency’s discretion” to set aside.
So they ask us, with rising frustration: Does BLM ever actually analyze anything?
It is a fair question, and it deserves a plain answer.
After fifty years of watching the Bureau of Land Management (BLM) produce documents for the wild horse and burro program, the honest answer is that the agency rarely seems to analyze first and decide second. The pattern runs the other way. A decision to “get a roundup done” is made, a herd may even be slotted onto a gather schedule, and only then is the environmental document assembled to justify what was already chosen. The analysis arrives after the action is locked in. The comment period arrives after the decision is set in stone. And the public — the actual owners of these lands and these animals — is left holding comments the agency was never going to use.
There is a legal name for deciding first and analyzing second. It is called predetermination. And it is illegal.
RED DESERT: Sample comments and sign on letter HERE. Deadline Is July 13.
EAGLE COMPLEX: Sample comments and sign on letter HERE. Deadline is July 27.
Bachelor band on range, Adobe Town
The Question Behind the Question
The frustration is not really about one document. It is about a growing sense that the public has nothing to do with public lands management — that comment periods are theater, that the agency has already decided, and that “participation” means watching a decision you cannot change. “Public” to BLM more than seemingly appears to mean livestock permittee or mine owner, the rest of us do not matter.
That sense is grounded in experience. Wild horses and burros are a public lands issue. They belong to the American people and live on land the American people own. The law gives the public a right to participate in how that land is managed — not as a courtesy, but as a statutory requirement.
Yet across roundup after roundup, the public’s contribution is being routed into a dead end:
- Raise issues like livestock, water, or forage allocation in a gather scoping comment, and you are told it is “outside the scope” of a removal decision.
- Raise welfare — helicopter speed, drive distances, foals run to collapse, barbed-wire collisions — in comments on a gather EA, and you are told those concerns belong at the annual “motorized vehicle hearing,” not in the site-specific analysis.
- Go to the motorized vehicle hearing and raise those same welfare concerns, and you are told the hearing “is not part of the BLM’s analysis of any single, site-specific action” — it is a general FLPMA box-check, after which the agency may, in its discretion, do nothing with what it heard.
Follow that circle and you see the trap. Welfare is “outside the scope” of the gather EA because it supposedly belongs at the hearing; and it changes nothing at the hearing because the hearing is not tied to any actual decision (but yet is used in every actual decision to satisfy the “analysis requirement.”). The public is sent around and around between two forums, neither of which is obligated to let its input affect the outcome. That is not participation. That is the appearance of participation, engineered to satisfy a legal requirement on paper while ensuring nothing the public says can move the decision.
Sand Wash
What Predetermination Actually Means
The National Environmental Policy Act (NEPA) does not tell agencies what to decide. It tells them how to decide. Before a significant action — approving a mine, leasing a forest, rounding up a wild horse herd — an agency must study the consequences, weigh reasonable alternatives, take public comment, and let that analysis genuinely inform the choice.
The key word is inform. The analysis comes first; the decision comes second. The regulation says it plainly: NEPA documents must be “prepared early enough so that [they] can serve practically as an important contribution to the decisionmaking process and will not be used to rationalize or justify decisions already made.” (40 C.F.R. § 1502.5.)
When an agency commits to an outcome before completing its review, that is predetermination — and courts have struck down decisions for it again and again, from the Ninth Circuit in Metcalf v. Daley to the Tenth Circuit, the court that governs Wyoming, in Davis v. Mineta.
We see it constantly in the world of wild horses and burros. An EA goes out for comment and, before the Final is even issued, the roundup is on the schedule. Or the EA is finalized and, before the appeal period even closes, the chopper is in the air. The pattern is always the same: an agency that has already made up its mind, asking the public to comment on a decision already made.
That is not a technicality. It corrupts the analysis — once the conclusion is chosen, alternatives are dismissed before they are studied and inconvenient data is sidelined. It strips the public of any real voice. And it hides the real reasons, which usually have nothing to do with the resource on the ground — a budget cycle, a livestock-permit relationship, a political timeline. NEPA is supposed to surface those pressures. Predetermination buries them, and “outside the scope” is the shovel.
Callaghan Complex, South Shoshone HMA
How the Program Got Here
The wild horse program was built on this backwards model. For decades, BLM was supposed to produce Herd Management Area Plans (HMAP) — site-specific documents that disclose how Appropriate Management Level (AML) was set, what data justifies it, how forage and water are divided among uses, what water improvements need to be done, fence removals, where boundaries actually sit based in how horses/burros use the range (not just where BLM wants them to cut down contention), and what the genetics require, etc.. HMAPs are the planning layer; they are supposed to come before the removals, before the sterilization decisions, before the population targets are locked in. The HMAP is the place where the public is supposed to be able to propose alternatives after BLM discloses its data — in other words, all the things the agency now forbids you from commenting on in a gather EA (and is now trying to forbid you to comment on in the HMAP and why we are back in court).
By the late 1980s, fewer than one in five HMAPs that should have existed had been completed. Rather than finish the work, the agency leaned on a decision allowing short-term gathers while HMAPs were “being developed.” That temporary permission became permanent practice — BLM removed horses, set AMLs through agreements, and approved livestock and mining uses for decades, all while denying it had any obligation to do the planning at all.
In 2024, federal rulings rejected that position. The courts found — in our litigation for the Pancake HMA and a separate case for the Blue Wing Complex — that HMAPs had been unlawfully withheld and that the agency could not operate indefinitely without them. As the court put it, a removal plan is not a management plan.
That was supposed to be the breakthrough. But cracking a door open and walking through it are not the same thing.
We have since filed Pancake phase 2, against a document where BLM essentially just renamed a gather plan to include the words “Herd Management Area Plan” without any of the substance. We are litigating Callaghan, where BLM produced a short gather plan, called it an HMAP, and stuffed the HMAP language into a generic Appendix that kicks the real analysis down the road to “someday” — a record with no water inventories, no land-health baselines, and no genetic or wildfire analysis. The agency keeps changing tactics to avoid the one thing it has dodged for over fifty years: disclosing what is really going on and building fair, science-based allocations. (We are also in court in places like Stone Cabin where BLM is claiming they do not have to comply with an HMAP that requires things like actual data collection and water improvements.)
Which brings us to the Red Desert — and to Eagle, and to every herd in line behind them.
Lost Creek, Red Desert
Red Desert: A “Plan” That Plans Nothing
In spring 2026, BLM’s Lander and Rawlins Field Offices opened scoping for the Red Desert Complex — five Herd Management Areas (Antelope Hills, Crooks Mountain, Green Mountain, Stewart Creek, and Lost Creek) across roughly 752,694 acres of southwestern Wyoming. The document that emerged (DOI-BLM-WY-R050-2026-0012-EA) “purports to be” a Herd Management Area Plan — exactly the standalone planning document the 2024 rulings said BLM could no longer avoid.
Open it, and the now-familiar move is right there. The questions an HMAP exists to answer are declared “outside the scope” of the very document meant to answer them. The EA states up front that it “does not address setting or adjusting AMLs” and “does not address adjusting livestock use.” The AMLs — 480 to 724 horses for the entire complex — are treated as a settled premise inherited from the Rawlins (2008) and Lander (2014) Resource Management Plans, with the EA reciting that prior evaluations found “no compelling reason to either increase or decrease the current AML.” The public notice itself conceded that the herd evaluations underpinning this action are more than thirty years old (and set in agreements, not data)
This is the tell. A document written to manage a herd asks what the herd needs — water, forage, boundaries, genetics, how the range fares under drought when every user is counted.
A document written to gather a herd asks one question: how do we get to the low end of AML, and how fast. The Red Desert EA asks the second and rules the first out of order.
The goal is gather, not manage. That is why they did the paperwork — and it explains every choice that follows.
This is a gather plan, not an HMAP.
Red Desert release
Three pieces of the record show the pattern in plain sight. There is no substantive response, only vague language that seems more like a dodge when this plan eventually hits the courtroom.
Arapahoe Creek — Decided, Not Analyzed
The EA proposes to manage the Arapahoe Creek Herd Area and other areas outside the HMA boundaries for zero wild horses, removing more than 260 animals as “outside” the area managed for them. When commenters asked BLM to analyze Arapahoe Creek as an HMA — to study whether horses belong there — the agency refused, calling that a land-use-planning question “outside the scope.”
The Arapahoe Creek area and surrounding allotments carry active, heavy cattle and sheep authorizations; the Crooks Mountain allotment alone runs cattle at 98% of authorized use. An area managed for zero horses while remaining fully stocked with livestock is not being managed for balance. It is being managed for the removal of one use to benefit a powerful political livestock faction.
Courts have already held that BLM acts arbitrarily and capriciously when it uses the planning process to zero out wild horse management without applying the Act’s “thriving natural ecological balance” standard. The Red Desert EA does precisely what the court forbade: it treats the zero-out as a settled given and refuses the analysis the law requires. The decision came first; the refusal to analyze it came second.
The Water Comparison BLM Made — Then Refused to Make
The EA (absurdly) blames drought and water stress on wild horses. The word “drought” appears roughly two dozen times — yet the document never quantifies it, with no Drought Monitor classifications and no snowpack figures, even though Wyoming’s 2026 snowpack was the lowest in the recorded history of the measurement, at less than half of normal. Drought is a reason to remove horses and is never applied to any other user or other action (like water repairs, livestock reduction, fence removal, etc.)
Worse, the EA never measures how much water the other animals on the same range are drinking. A cow-calf pair drinks roughly 40 gallons a day. A wild horse drinks roughly 15 — and BLM’s own cited research inside this very EA puts horses even lower, at about 7.4 gallons. By the agency’s own numbers, cattle consume far more water per animal than horses. The EA placed that comparative figure in its own record and then declined to make the comparison, telling commenters the relative responsibility of livestock versus horses is “outside the scope” and “difficult to quantify and test conclusively.” (As a response to comments so, if you are in a courtroom, BLM can say they did not ignore us.)
That is an admission, not an analysis. The forage accounting runs one direction only: the EA tallies the 18,408 animal-unit-months that horse removal would “free up” and frames livestock as the beneficiary, while the Cyclone Rim sheep allotment (27,286 AUMs) and Stewart Creek (7,851 AUMs) — numbers that dwarf the entire horse herd — are listed with “No Data” on actual use and never tested against the drought. When an analysis counts only one user’s consumption as a problem and treats every other user as a beneficiary, the conclusion was reached before the counting started.
The HMAP Dodge — “Outside the Scope” Because It Might Require an LUP Amendment
This is the heart of it. When commenters asked BLM to analyze the obvious alternative — reducing or conditioning livestock use to protect water and forage during record drought — the agency refused, on the ground that doing so would require a Land Use Plan amendment and “cannot be made through a wild horse gather decision.”
That single sentence is the predetermination engine. The whole purpose of an HMAP is the site-specific analysis that determines what the range needs — and if that analysis shows the land-use plan got the allocation wrong, the honest result is to say so and trigger the amendment. BLM has inverted the logic. Rather than let the analysis lead, the agency refuses to perform it precisely because it might point toward an LUP amendment. The conclusion — no change to livestock, no change to AML, remove horses — is protected by declaring the question that would test it “outside the scope.”
The agency cannot have it both ways. It cannot label a document an HMAP to satisfy the 2024 rulings and then carve out every disclosure an HMAP exists to make. As the District of Nevada held in Leigh v. Raby (2024), “LUPs and HMAPs are not equivalent documents”; BLM must actually prepare an HMAP and analyze the foreseeable effects of the gather alternatives — including effects on wildfire risk — and reach a conclusion about their significance. The Red Desert EA confines fire and fuels to an appendix and never analyzes how removing 1,800 to 2,050 large herbivores during record drought will affect fine-fuel loads and wildfire risk across three-quarters of a million acres. The HMAP BLM approved, by its own terms, “would not differ between selected alternatives” — its objectives do not change no matter which action is chosen, and every monitoring trigger points back to a single lever: remove horses.
Red Desert, 2020
The Same Move, Everywhere: Red Desert to Eagle
The reason the question “Does BLM ever analyze anything?” keeps coming is that the Red Desert pattern is not unique to the Red Desert. It is the template.
At the Eagle Complex on the Nevada–Utah border — three HMAs across roughly 760,779 acres — BLM opened HMAP scoping in 2026 with the same structure: a 10-year wild horse plan written on top of grazing decisions that are still being litigated, with the Wilson Creek allotment overlapping nearly half the Eagle HMA at tens of thousands of permitted livestock AUMs, much of it suspended or under administrative review. There, too, commenters had to ask BLM to put real, site-specific content in the body of the plan instead of a generic appendix, to disclose the water sources that are fenced or privately controlled, and to analyze livestock closures and fence removal as HMAP tools “rather than declare them outside the scope.” Same template, same dodge, different state.
Mare run as she aborted a foal, Eagle Complex
And the welfare dodge spans all of it. When the public raises helicopter and welfare concerns on any gather EA, BLM says the requirement to consider those comments is met by the annual motorized vehicle hearing.
Then, at the hearing, the agency’s own materials state the hearing “is not part of the BLM’s analysis of any single, site-specific action.” Welfare comments are thus homeless by design — too site-specific for the general hearing, too “general” for the site-specific EA. (Yet every EA includes the hearing as meeting the analysis requirement.)
When the same maneuver appears at Red Desert, at Eagle, at Pancake, at Callaghan, at Blue Wing, in scoping and in welfare hearings alike, it stops being an accident of one field office. It is a program-wide method for taking public comment without letting public comment matter. Predetermination is standard practice.
Carter, we have litigation here as well. BLM is aware thart issues need to be addressed in the HMAP level but decided instead of fixing anythig, they just want to remove the herd don to 25 wild horses
Is Litigation the Only Avenue Left?
Here is the harder question the frustration is really pointing toward. If comments are routed “outside the scope,” and welfare concerns are bounced between a hearing and an EA that each disclaim responsibility for them, and the planning document is built to ratify a decision already on the schedule — then what is left? Is litigation the only way to make the agency actually analyze anything?
We wish the answer were no. It is supposed to be no. The administrative process — scoping, comment, alternatives, appeal — is designed to be the place where the public corrects the agency without a courtroom. When that process works, litigation is a last resort.
But the process only works if the agency treats comment as something that can change the outcome. When an agency decides first and writes the document to fit, it has removed every internal check the law built in. Scoping cannot fix a decision that was made before scoping opened. Comment cannot move a conclusion the document was engineered to protect. An appeal to the same agency that predetermined the outcome asks that agency to overrule itself. One by one, the avenues that are supposed to come before court are closed off — not because the public failed to use them, but because the agency hollowed them out.
That is why litigation keeps becoming more necessary. It is not that advocates prefer it; it is the only forum the agency does not control.
A court can do the three things the administrative process is failing to do: it can force the agency to actually disclose its data, it can hold that “outside the scope” was used unlawfully to avoid required analysis, and it can make the agency apply standards — thriving natural ecological balance, the duty to prepare a real HMAP, the duty to take a hard look — that it is otherwise free to recite and ignore. The 2024 HMAP rulings happened because of litigation. The only times that BLM has been made to slow down and plan have come at the end of a lawsuit, not at the end of a comment period.
This should alarm anyone who cares about public lands, regardless of where they stand on horses. A management system in which the public’s only effective tool is a federal lawsuit is a system that has stopped functioning as designed.
Litigation is expensive, slow, and available only to those who can sustain it — which means most of the public, doing exactly what the law asks, gets no remedy at all. The growing necessity of litigation is not a sign that advocates are litigious. It is a symptom that the participatory process has been drained of meaning.
Does that mean you stop commenting? Absolutely not. Comment periods must be participated in and still strengthen litigation (until they gain meaning again).
Where We Go From Here
The fix is the one the law has always required, and it should not require a courtroom. Real analysis, done first. Real alternatives, considered honestly — including the livestock and water alternatives BLM keeps ruling “outside the scope.” A genuine drought accounting that measures every user, not just the one without a permit BLM is intent on removing. Welfare comments that actually enter a site-specific record instead of vanishing between a hearing and an EA. And real HMAPs — at Red Desert, at Eagle, everywhere — that follow their own analysis where it leads, even when it leads to amending a land-use plan that got the allocation wrong.
Until that happens, every “plan” the agency releases deserves to be read with the calendar in one hand and the document in the other — checking, every time, whether the analysis came before the decision or chased after it.
And the public deserves a straight answer to the question it keeps asking. Does BLM ever analyze anything? On the present record, the honest answer is: not until a court makes it. The goal is gather, not manage — and that is why they keep doing the paperwork, and why we keep ending up in court to make them do the work.
Wild Horse Education has submitted detailed comments on the Red Desert and Eagle Complex HMAP processes and continues to litigate the broader pattern of “HMAP-in-name-only” documents and the hollowing-out of public participation.
RED DESERT: Sample comments and sign on letter HERE. Deadline Is July 13.
EAGLE COMPLEX: Sample comments and sign on letter HERE. Deadline is July 27.
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. Thank you!
Categories: Wild Horse Education
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