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December 21, 2015
VIA ELECTRONIC MAIL (blm_wy_checkerboard_hmas@blm.gov)
Kimberly D. Foster, Field Manager,
BLM Rock Springs Field Office
Dennis J. Carpenter, Field Manager
Rawlins Field Office
Re:
Comments 2014 Removal of Wild Horses from Checkboard within Great Divide
Basin, Salt Wells Creek and Adobe Town Herd Management Areas, DOI-WY-040EA15-104
Dear Ms. Foster and Mr. Carpenter:
Friends of Animals (“FoA”)1 submits these comments in response to the unsigned
Finding of No Significant Impact (“FONSI”) for the 2014 Removal of Wild Horses from
Checkboard within the Great Divide Basin, Salt Wells Creek and Adobe Town Herd
Management Areas, DOI-WY-040-EA15-104. The FONSI was issued in response to a
remand by the U.S. District Court for the District of Wyoming (Case No. 14-CV-0152-NDF)
which granted the wild horse advocates’ “request for a declaration that BLM’s July 2014 CX
is in violation of [the National Environmental Policy Act]” and ordered BLM to “remedy the
NEPA deficiencies.” Specifically, the Court determined that “BLM’s conclusion that the
gather would not individually or cumulatively have a significant effect on the human
environment is not adequately supported by an analysis of all relevant factors.”
FoA is a non-profit international advocacy organization incorporated in the state of New
York since 1957. FoA has nearly 200,000 members worldwide. FoA and its members seek
to free animals from cruelty and exploitation around the world, and to promote a respectful
view of non-human, free-living and domestic animals. FoA regularly advocates for the right
of wild horses to live freely on public lands, and for more transparency and accountability
in BLM’s “management” of wild horses and burros.
1
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BLM’s decision that a mere Categorical Exclusion (“CX”) would fulfill its NEPA
obligation to analyze and disclose the impacts of the removal of 1263 horses from the
Wyoming Checkerboard was due in large part to commitments the agency made under a
Consent Decree signed in 2013 to settle litigation dating back to 1979. However, the
settlement, which deprived U.S. taxpayers of over one million acres of public lands formerly
available for wild horse use, was a major federal action that significantly affects the quality
of the human environment, and analysis of “all relevant factors” regarding the individual
and cumulative impacts of the total removal of all wild horses from the Wyoming
Checkerboard requires not just an Environmental Assessment (“EA”)/FONSI but the
preparation of an Environmental Impact Statement (“EIS”). In addition, the closure of over
a million acres of public lands for the benefit of private grazing interests violates the
Unlawful Inclosures of Public Lands Act.
BACKGROUND
The allocation of forage in the Wyoming Checkerboard has been the subject of
litigation for at least thirty-five years. In 1909, the Rock Springs Grazing Association
(“RSGA”) was established “to assemble the land rights to use the rangeland resources
within a portion of the Wyoming Checkerboard roughly 40 miles wide and 80 miles long
and containing slightly more than two million acres.”2 While RSGA uses this land primarily
for grazing sheep in the winter, “the Wyoming Checkerboard is also crucial winter range
habitat for wild horses, although animals can be there year long.“3
It is critical to note that while RSGA is considered to “own or control” more than two
million acres within the Wyoming Checkerboard, in fact, over 70% of the checkerboard
lands within the three Herd Management Areas (HMAs) at issue here are public
lands owned and managed for the public by BLM. Specifically, within the Checkerboard
area, BLM manages 61% of the Great Divide Basin HMA, 69% of the Salt Wells Creek HMA,
and 92% of the Adobe Town HMA.4
In spite of overwhelming Federal control over the lands in the Wyoming
Checkerboard, in 1979, “RSGA met with wild horse advocacy organizations and agreed to
allow 1,500 wild horses within the Rock Springs District with only 500 horses [to remain]
on the Checkerboard.”5 (Emphasis added.)
American Wild Horse Preservation Campaign v. Sally Jewel, 14-CV-0152-NDF (D. Wyo.
March 3, 2015).
3
Rock Springs Grazing Ass’n v. Salazar, 935 F. Supp. 2d 1179, 1183 (D. Wyo. April 3, 2013)
n-4.
4
See 2015 Environmental Assessment, 2014 Removal of Wild Horses from Checkerboard
within the Great Divide Basin, Salt Wells Creek and Adobe Town Herd Management Areas,
(2015 Checkerboard EA) at 1.
5
Id. at 7.
2
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Despite the agreement, disputes over forage in the Wyoming Checkerboard
continued. In 1979, RSGA sued the BLM, seeking removal of wild horses that had strayed
onto RSGA’s private lands in the Checkerboard.6 When BLM didn’t remove wild horses
from RSGA’s land, due to lack of funding for the wild horse gather program,7 in 1981, RSGA
withdrew its consent to “tolerate wild horses on its lands” and sued to compel removal
under the Wild Horses and Burros Act (WHBA), 16 U.S.C. § 1134, also known as WHBA
Section 4.8 In 1981, the Wyoming District Court ordered BLM to remove all wild horses
from the Wyoming Checkerboard except for the number of horses that the RSGA
voluntarily agreed to leave in the area. The 1981 Order was amended in 1982 to specify
that wild horses above the levels agreed to by RSGA were “excess” under the WHBA §
1332(f).9
BLM managed the Wyoming Checkerboard horses to comply with the Order, and the
1997 Green River Resource Management Plan (RMP) specified that an AML of “1105 to
1600 wild horses will be maintained” among the five herd management areas (Table 15).”10
Table 15, from the 1997 RMP, is reproduced below:
Note that the 1997 Green River RMP provided that a minimum of 1105 horses
were to be allowed on the HMAs on the Wyoming Checkboard. Specifically, 415 AMLs were
allocated to the Great Divide HMA, 205 to the White Mountain HMA, 251 to the Salt Wells
Creek HMA, and 165 to the Adobe Town HMA.
Mountain States Legal Foundation et al. v Andrus, Civ. No. 79-275K (D. Wyo. 1981).
Rock Springs Grazing Ass’n v. Salazar, (D. Wyo. April 3, 2013) n-4.
8
Id.
9
Id.
10
1997 Green River RMP, Table 15, page 72.
6
7
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In 2011, RSGA sought a Declaratory Judgment that “RSGA is entitled to enforce the
orders of this Court in [Mountain States Legal Foundation et al. v Andrus]”, and that under
the WHBA’s Section 4, BLM must remove “all of the wild horses that have strayed onto the
RSGA lands and the adjacent public lands within the Wyoming Checkerboard, and all
of the wild horses from RSGA’s land within one year.”11 (Emphasis added.)
However, on April 3, 2013, the parties signed a Consent Decree that provided that,
pursuant to WHBA Section 4, BLM agreed to “remove all wild horses from RSGA’s private
lands, including Wyoming Checkerboard lands….”12 BLM also agreed to remove “wild
horses from Checkerboard lands” within the Salt Wells, Adobe Town, Divide Basin, and
White Mountain HMAs.13
The 2013 Consent Decree set the AMLs for the Checkboard HMAs as follows: Salt
Wells/Adobe Town, 200 horses; the Divide Basin, 100 horses; and White Mountain at 205300 horses.14 BLM also agreed to maintain wild horse levels for those HMAs “at the low end
of AML.”15 Finally, in the Consent Decree, BLM agreed to initiate NEPA planning to consider
the impacts of “zeroing out” both the Salt Wells and the Divide Basin wild horse
populations, to allow 225-450 (“or lower”) horses in the Adobe Town HMA, and to
maintain the White Mountain HMA at 205 wild horses.16
The AMLs resulting from the 2013 Consent Decree therefore represented a dramatic
reduction in the AMLs allocated under the 1997 Green River RMP, both in the number and
distribution of wild horses. Specifically, in the Salt River/Adobe HMAs, AMLS were reduced
from a minimum of 416 to a maximum of 200 horses; in the Great Divide HMA, AMLs were
reduced from a minimum of 415 horses to a maximum of 100. Thus, AMLs agreed to in the
2013 Consent Decree would leave at most 505 wild horses, or less than half of the
minimum AML set under the 1997 Green River RMP, in an area encompassing two
million acres, including over a million acres managed by the BLM on behalf of the
American people.17
In addition to reducing wild horse numbers, the 2013 Consent Decree contemplated
drastic changes in the distribution of wild horse populations related to AML updates
planned for the Rock Springs and Rawlins Field Office RMPs; both the Salt Wells and Divide
Basin horse populations would be gathered to leave zero horses, and Adobe would contain
225-450 horses “or lower,” and White Mountain would be managed for as a nonreproducing herd to maintain a population of 205 wild horses. Therefore, RMP revisions
Rock Springs Grazing Ass’n v. Salazar, 2011, Case No. 11-CV-263-NDF (D. Wyo. November
2, 2011).
12
April 3, 2014 Consent Decree, Clause 1.
13
Id. at Clause 5.
14
Id. at Clauses 1, and 4.
15 Id. at Clause 4.
16
Id. at Clause 6.
17
Id. at Clauses 1, 4.
11
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contemplated in the 2013 Consent Decree would leave a maximum of 655 horses in a
two-million acre area, including over a million acres managed by the BLM for the
benefit of the American public. 18
In 2014, BLM removed 1263 wild horses from the Wyoming Checkerboard lands “in
accordance with Section 4 of the WHA and the 2013 Consent Decree….”19 To satisfy its
NEPA obligations, BLM relied on a CX; as noted above, the U.S. District Court of Wyoming
on March 3, 2015, determined that BLM’s reliance on a CX, and conclusion that “the gather
would not individually or cumulatively have a significant effect on the human
environment” was ”not adequately supported by an analysis of all relevant factors” and
remanded the FONSI so BLM could satisfy its NEPA obligations. In response to the remand,
in November of 2015, BLM released the 2015 EA/FONSI that is the subject of this comment.
As will be discussed in detail below, BLM’s decision to all but eliminate wild horses from a
million acres of public land is a major federal action for which an EIS is required. Further,
BLM’s decision to virtually eliminate wild horses from over a million acres of public land,
for the benefit of private land owners, violates the Unlawful Inclosures of Public Lands Act.
BLM SHOULD CONSIDER ITS OBLIGATIONS UNDER THE NATIONAL
ENVIRONMENTAL POLICY ACT
A. The 2014 Checkerboard Removal Constituted an Illegal Commitment of Prior to the
Completion of NEPA Analysis.
NEPA requires that an agency take “a hard look” at the impacts of an action prior to
making an irreversible and irretrievable commitment of resources;20 BLM has not done so.
The 2015 Checkerboard Removal EA specifically states that the decision to remove horses
was not based on NEPA analysis but on various agreements to resolve litigation with a
private grazing organization, and yet the Tenth Circuit has held that “if an agency
predetermines the NEPA analysis by committing itself to an outcome, the agency has likely
failed to take a hard look at the environmental consequences of its actions due to its bias in
favor of that outcome, and therefore, has acted arbitrarily and capriciously.”21
The fundamental purpose of NEPA is to improve the decision making of federal
agencies by requiring an analysis of the environmental impacts of a proposed action and an
exploration of alternatives to that action that would reduce or eliminate such impacts. 42
U.S.C. § 4332. The primary vehicle for this analysis is an EIS. Id.
NEPA requires an acting agency to prepare a detailed EIS for federal actions that
significantly affect the quality of the human environment, including “(i) the environmental
impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided
Id. at Clause 6.
Purpose and Need, 2015 Checkerboard Removal EA, at 7.
20
Robertson v. Methow Valley Citizens Council, 490 U.S 332, 349 (1989).
21
Forest Guardians v. FWS, 611 F.3d 692, 713 (10th Cir. N.M. 2010).
18
19
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should the proposal be implemented, [and] (iii) alternatives to the proposed action.” 42 U.S.C. §
4332(2)(C). The EIS is the cornerstone of NEPA. Generally, an agency will prepare an EA to
determine whether preparation of an EIS is necessary; in the case of the Wyoming
Checkerboard removals, BLM prepared a CX, then an EA, and then determined that an EIS was
not required.
B. The 2014 Checkerboard Removal is a Major Federal Action for which an EIS is required.
An EIS is required for all “major Federal actions significantly affecting the quality of
the human environment.” 42 U.S.C. § 4332(2)(C). The Council on Environmental Quality
(“CEQ”) defines “major federal action” to include “actions with effects that may be major
and which are potentially subject to Federal control.” 40 C.F.R. § 1508.18 (emphasis
added). The requirement to prepare an EIS is broad and intended to compel agencies to
take seriously the potential environmental consequences of a proposed action prior to
taking action.
Whether an agency action is “significant” enough to require preparation of an EIS
requires “considerations of both context and intensity.” 40 C.F.R. § 1508.27.
The context of the action includes factors such as “society as a whole (human,
national), the affected region, the affected interests, and the locality.” 40 C.F.R. §
1508.27(a). The intensity of an action refers to the “severity of the impact” and requires
consideration of several factors, including “[t]he degree to which the effects on the quality
of the human environment are likely to be highly controversial”; [t]he degree to which the
possible effects on the human environment are highly uncertain or involve unique or
unknown risks”; and “[w]hether the action is related to other actions with individually
insignificant but cumulative significant impacts.” 40 C.F.R. §1508.27(b).
The 2014 Wyoming Checkerboard removal of 1263 wild horses, with no chance of
return to wild status, constitutes a significant federal action based on the context and
intensity of the action. First of all, as Congress declared, wild horses “are living symbols of
the historic and pioneer spirit of the West; that they contribute to the diversity of life forms
within the Nation and enrich the lives of the American people.” 16 U.S.C. § 1331. Second,
the public has advocated for the right of wild horses to live freely, and the proposed action,
which involves removing over half the horses allowed in the current RMP as well as
eliminating reproduction for an entire herd, will be significant to both the wild horses and
those who enjoy viewing and studying them. Third, while the impact of the removal of
1263 wild horses may be individually minor, the removal of 1263 wild horses from over a
million acres of public land is severe when considered cumulatively.
Cumulative impacts, as defined by the CEQ (40 C.F.R. 1508.7), are impacts to the
environment that result from the incremental impact of the action when added to other
past, present, and reasonably foreseeable future actions, regardless of what agency (federal
or non-federal) or person undertakes such other actions. Cumulative impacts may result
from individually minor, but collectively significant, actions taking place over time.
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Cumulative impacts in this case would include the near total removal of wild horses from
over a million acres of federal lands, further reduction in the genetic viability of the horses
allowed to remain, the addition of yet another 1263 horses to an already overburdened and
ineffective wild horse adoption program, and the release of unadoptable horses into
expensive and unsustainable long-term holding facilities.
This removal represents not only significant direct impacts on the wild horses of the
Wyoming Checkerboard, because the horses will be removed from open range and placed
in BLM holding facilities, there is a significant cumulative impact on the human
environment that BLM failed to consider in its NEPA analysis: the increasing costs of BLM’s
ineffective approach to wild horse management. In 2008, the Government Accountability
Office (GAO) warned that “the long-term sustainability of BLM’s Wild Horse and Burro
Program” was in doubt due in part to the increasing costs of keeping wild horses in holding
facilities; the GAO noted that the cost of holding animals “off the range” increased from $7
million in 2000 to $21 million in 2007.22
The cost of maintaining wild horses off the range has continued to grow since GAO’s
2008 warning regarding unsustainable costs of the program. Holding costs were a mere
$21 million in 2007; in FY 2012, BLM spent $42.955 million on holding facilities, which
constituted 59% of its total wild horse program budget. While the cost of maintaining wild
horses removed from the range was astronomical even in 2012, in the last three years that
cost has continued to grow; in 2015, BLM budgeted $49.382 million for holding
facilities, which represents 65.7%, or almost two-thirds, of the agency’s total wild horse
program budget.23
Eliminating wild horses from over a million acres of public land constitutes a
significant impact on wild horses, which alone constitutes a significant environmental
impact requiring the preparation of an EIS. In addition, with this removal of all but 500
wild horses from over a million acres of public land, American taxpayers are required to
bear the costs of an unsustainable approach to wild horse management. And this gather
represents a significant departure from wild horse management in the Wyoming
Checkerboard; the U.S. District Court of Wyoming noted that “This appears to be the first
time RSGA’s checkerboard rangeland has been gathered for removal of all horses without
any return.”24 (Emphasis in original.) Therefore, based on the context, intensity, and
cumulative effect of this gather demonstrates that this action constitutes a significant
impact on the human environment that requires the preparation of an EIS.
BUREAU OF LAND MANAGEMENT Effective Long-Term Options Needed to Manage
Unadoptable Wild Horses issued in October, 2008,
http://www.gao.gov/new.items/d0977.pdf
22
Wild Horse and Burros Quick Facts, updated November 24, 2015.
American Wild Horse Preservation Campaign v. Sally Jewell, Case No. 14-CV-0152NDF
(D. Wyo. March 3, 2015) at 26.
23
24
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C. BLM Should Consider Other Reasonable Alternatives.
The 2015 Checkerboard Removal EA proposed three alternatives, including
Alternative 1, the No Action alternative.25 Alternative 2 was to “remove all the wild horses
from the checkerboard lands within the Salt Wells Creek, Adobe Town and Great Divide
Basin HMAs” and Alternative 3 was to “remove the wild horses from the checkerboard
lands and return them only to the solid block lands within the Salt Wells Creek, Adobe
Town, and Great Divide Basin HMAs.”26 In 2014, BLM implemented Alternative 2, to
remove all wild horses from the checkerboard lands, resulting in the permanent removal of
1263 wild horses from the Wyoming Checkerboard. Other alternatives considered but
eliminated from detailed analysis included changing the established AMLs, removing wild
horses to the low AML for each of the HMAs, and using fertility control in lieu of horse
removal.27
Each of these alternatives, including the agency’s chosen alternative to remove all
wild horses from three existing HMAs in the Wyoming Checkerboard, is predicated upon
AMLs set pursuant to an agreement with a private ranching organization that in effect
removes all but 500 wild horses from over a million acres of Federal public lands. The 1263
removed horses were transported to holding facilities, to the severe detriment of the
horses and at great expense to the American public.
An EA or an EIS should provide a full and fair discussion of the issues; it should
inform decision makers and the public of the reasonable alternatives that would avoid or
minimize adverse impacts or enhance the quality of the human environment.28 The AMLs
for these HMAs were set in 1979 based only the demands of a private grazing organization,
and with the 2014 Checkerboard Removal BLM affirms that a private grazing association
can dictate the use of federal lands to the detriment of both a treasured species protected
by statute, and taxpayers who are left responsible for their upkeep.
Therefore, Friends of Animals asks BLM to conduct NEPA analysis that considers a
full range of alternatives, including at least one alternative that protects wild horses.
Reasonable alternatives would include: (1) revisiting assumptions made in the 2013
Consent Decree regarding AMLs; (2) reconsidering AMLs allocated under existing grazing
permits; (3) re-evaluating AMLS to meet the needs of wild horses, not just RSGA’s sheep
and cattle; and, (4) consistent with BLM’s responsibilities under the WHBA, ensuring that
wild horses are considered as “an integral part of the natural system of public lands” and
prioritizing wild horses, not sheep and cattle, on herd management areas.
2015 Checkerboard Removal Environmental Assessment, at 11.
Id.
27
Id. at 12-13.
28 See 40 C.F.R. § 1502.1.
25
26
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Not only are each of these alternatives reasonable, use of any of these alternatives
would avoid or minimize adverse impacts to and enhance the quality of the human
environment. Thus, NEPA mandates consideration of these alternatives.
D. BLM Should Analyze Additional Alternatives Regarding the Positive Impact of
Wild Horses, and the Ethical Implications of Its Management of Wild Horses on the
Wyoming Checkerboard.
NEPA requires BLM to adequately evaluate all potential environmental impacts of
proposed actions.29
To meet this obligation, BLM must identify and disclose to the public all foreseeable
impacts of the proposed action, including direct, indirect, and cumulative impacts.30 In
addition to the issues discussed above, the 2015 Checkerboard EA failed to evaluate the
positive impacts of wild horses in the Wyoming Checkerboard, and the ethical impacts of all
alternatives.
1. Wild Horses Have a Positive Impact on the Land.
The 2015 Checkerboard EA gives the impression that wild horses have an
exclusively negative impact on the health of the range.31 However, literature from wildlife
ecologists suggests the opposite may be true. A healthy, free-roaming wild horse
population serves to fertilize soils, suppress catastrophic wildfires, and contribute to
overall ecological stability.32 Nonetheless, the 2015 Checkerboard EA is devoid of any
discussion regarding the positive impact of wild horses. In order to make an informed
decision and comparison of the alternatives about how to allocate resources and acreage to
wild horses or other uses, the BLM must disclose these views and allow the public to
comment on them.
When given sufficient habitat to roam, there are many ways that wild horses
actually support ecosystems on public land.33 Wild horses help spread plant seeds over
large areas where they roam. They do not decompose the vegetation they ingest as
thoroughly as ruminant grazers, such as cattle or sheep, which allows the seeds of many
plant species to pass through their digestive tract intact into the soil that the wild horses
fertilize by their droppings. 34 Additionally, other animals depend on horses to make certain
29
See 42 U.S.C. § 4332(2)(C).
30 See
42 U.S.C. § 4332(2); see also 40 C.F.R. §§ 1508.7-1508.8.
2015 Checkerboard EA at 26.
32 Downer, Craig C. "The horse and burro as positively contributing returned natives in
North America." American Journal of Life Sciences 2, no. 1 (2014): 5-23.
33 Id.
34 Downer, 11; Duncan, Patrick, ed. Zebras, asses, and horses: an action plan for
the conservation of wild equids. Gland: IUCN, 1992.
31
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resources, such as water, available. For example, in the winter horses are able to break
through the ice to expose water to a variety of species.35 Wild horses also reduce dry,
parched and flammable vegetation, and thus can prevent catastrophic wildfires that are on
the increase. Further, their ability to build more moisture-retaining soils makes them very
important in this respect, since soil moisture dampens out incipient fires and makes the air
coating the earth also more moist.36 Wild horses and burros are well adapted to their
habitats and fill a significant niche within the North American ecosystem.37 The 2015
Checkerboard EA should be modified to include a fair discussion of reasonable opposing
viewpoints, including the beneficial ecological role of wild horses.
2. BLM Must Consider the Ethical Impacts of Its Wild Horse Management.
It is time for BLM to recognize that individual wild horses that may be
subject to its actions have intrinsic value and this in turn demands that BLM incorporate
ethics into its consideration of wildlife management activities and resource planning for
the Wyoming Checkerboard wild horse herds. There is a growing recognition among
conservationists and biologists that ethics must play a greater role in wildlife policy. 38
“While many agree that ethics must play a central role in any project involving [animals], it
is often interesting to note that in many books on human animal interactions . . . there is
often no mention of ethics. This needs to change.”39 The same must be said for the way
BLM discusses wild horses. 40
Undoubtedly, discussions in the context of policy development about ethics and
animals can make some people uncomfortable. But, of course, just a generation ago it was
also unheard of for an agency like BLM to incorporate the humane treatment of animals
into its decisionmaking process. This has changed dramatically. Inclusion of ethical impacts
and considerations allows federal, state, and local decision-makers, as well as the public, to
better understand the impact of human actions on animals, and allows for better decisions
to be made.
Our generation needs to adopt the same approach to educating the decision-makers
and the public as to the role of ethics in making decisions to “manage” public lands and
animals. Indeed, it is the job of range managers, conservationists, animal advocates and
scientists “to work toward public education and information dissemination to address real
Downer, 12.
Downer, 13-14.
37 Ross MacPhee. “Managed to Extinction.” A 40th Anniversary Legal Forum assessing the
38 See, e.g., Fox, Camilla H., and Marc Bekoff. "Integrating values and ethics into wildlife
policy and management—lessons from North America." Animals 1, no. 1 (2011): 126143.
39 Fox and Bekoff, 129.
40
Fox and Bekoff, 128.
35
36
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and perceived fears held” by others. What is missing in BLM’s management of the Wyoming
Checkerboard herds is the perspective of the animals.
The growing body of literature on animal cognition and emotions demonstrates
undeniably that animals have interests and points of view. Like us, they avoid pain and
suffering and seek pleasure. They form close social relationships, cooperate with other
individuals, and likely miss their friends when they are apart. Emotions have evolved,
serving as “social glue,” and playing major roles in the formation and maintenance of social
relationships among individuals. Emotions also serve as “social catalysts,” regulating
behaviours that guide the course of social encounters when individuals follow different
courses of action, depending on their situations. If we carefully study animal behaviour, we
can better understand what animals are experiencing and feeling and how this factors into
how we treat them.41
The 2015 Checkerboard EA should include a serious discussion of the ethical
implications of the proposed actions, such as restricting wild horse to artificially low
population numbers and depriving them of the right to reproduce. It should also discuss
the ethical implication of attempting to roundup wild horses.
Wild horses live in highly structured, hard-won family groups and are acutely
attuned to dangers in their environment, and wary of humans. 42 These family groups,
called bands, generally consist of several females (mares) protected by a dominant male
(stallion).43 Once a band is formed, the lead stallion usually watches out for and defends the
band and does most of the breeding. The band stallion is protective over the mares and will
defend against intrusion, takeover, or theft of females by outside males. Wild horses
communicate through a range of vocalizations including neighs, grunts and squeals. Pairbonded animals that have been separated will neigh to locate each other at a distance.
Stallions will also use vocal signals to resolve dominance contests before they escalate to
extreme physical contact.44 Wild horses are accustomed to roaming freely in the wilderness
and are often unable to survive the stress of being captured and held in captivity.45 Indeed,
wild horses have a highly refined fight or flight reaction—bodily changes that enhance a
horse’s chances of surviving a frightening situation by increasing his/her alertness,
capacity for physical exertion and ability to withstand injury.46 Roundups and
Fox and Bekoff, 131.
Alexandra Fuller, “Mustangs, Spirit of the Shrinking West.” National Geographic
Magazine, February 2009; Berger, Joel. "Wild horses of the Great Basin: social competition
and population size." Wildlife and behavior and ecology (USA) (1986).
43 NatureServe Explorer: An online encyclopedia of life [web application]. Version 7.1.
NatureServe, “Equus caballus” (2013)
44 Feldhamer, George A., Bruce C. Thompson, and Joseph A. Chapman, eds. Wild mammals of
North America: biology, management, and conservation. JHU Press, 2003.
45 Hope Ryden, America's Last Wild Horses. (New York: The Lyons Press, 1999).
46 Bruce Nock, “Wild Horses — The Stress Of Captivity.” Liberated Horsemanship, (2010).
41
42
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transportation to holding facilities are “truly disturbing for a species that depends on
familiarity for safety and comfort.”47
Under the 2015 Checkerboard Removal EA, all alternatives propose rounding-up
wild horses, which directly causes stress to the wild horses as they are often forced to run
long distances from helicopters in a state of fear, and on top of that there’s the social unrest
from confinement in close quarters with unfamiliar horses once trapped, and the loss of or
separation from lifelong herd mates.48 Roundups and subsequent captivity, as proposed in
the 2015 Checkerboard EA, can have long term negative effects on the horses and the herd;
the dramatic event can compromise a wild horse’s ability to deal with natural stressors.49
Stress from gathers can “have dramatic effects on how an animal functions, behaves and
even looks.”50 BLM should consider the effect of all of its actions on wild horse populations
as well as individual horses, and their rights to live free of human exploitation and
manipulation.
THE REMOVAL OF ALL BUT 500 WILD HORSES FROM THE WYOMING
CHECKERBOARD TO BENEFIT PRIVATE GRAZING INTERESTS VIOLATES THE
UNLAWFUL INCLOSURES ACT
As is clear from the 100-year history of forage allocation in the Wyoming
Checkerboard, the agency has managed the wild horse herds on the Wyoming
Checkerboard to benefit private grazing interests at the expense, both literally and
figuratively, of wild horses and of American taxpayers.
In 1909, RSGA was established “to assemble the land rights” to use “the rangeland
resources” of a portion of the Wyoming Checkerboard “roughly 40 miles long and 80 miles
wide.”51 In 1979, BLM allowed RSGA, a private ranching organization, to determine the
number of wild horses RSGA would “tolerate” on over two million acres of forage on the
Wyoming Checkerboard, in spite of the fact that 70% of that forage, on 1,695,517 acres,
is found in Herd Management Areas on public land, while only 30%, or 731,703
acres, is private land owned or controlled by RSGA.52
In addition, BLM set the wild horse AMLs in the 1997 Green River RMP, and
drastically revised them in the 2013 Consent Decree, not based on an assessment of range
conditions as required under the WHBA, but based on a court order, which did not
contemplate that BLM is obligated to comply not only with Section 4 of the WHBA, but also
with the Unlawful Inclosures of Public Lands Act (UIA), 43 U.S.C. § 1061, et. seq.
Nock, 10.
Nock, 9.
49 Nock, 10.
50 Nock, 15.
51
Id. at 3.
52
Id. at 6.
47
48
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The UIA, which was passed by Congress in 1885 specifically to deal with conflicts
over forage resources in Checkerboard lands in the arid West, makes it unlawful for private
landowners to enclose public lands for the benefit of private grazing interests.53
Specifically, UIA Section 1 states:
That all inclosures of any public lands . . . constructed by any person . . . to
any of which land included within the inclosure the person . . . had no
claim or color of title made or acquired in good faith . . . are declared to be
unlawful." 23 Stat. 321, 43 U.S.C. 1061.
Section 3 further provides:
No person, by force, threats, intimidation, or by any fencing or inclosing, or
any other unlawful means, shall prevent or obstruct, or shall combine and
confederate with others to prevent or obstruct, any person from peaceably
entering upon or establishing a settlement or residence on any tract of public
land subject to settlement or entry under the public land laws of the United
States, or shall prevent or obstruct free passage or transit over or through
the public lands: Provided, This section shall not be held to affect the right or
title of persons, who have gone upon, improved, or occupied said lands under
the land laws of the United States, claiming title thereto, in good faith. 23 Stat.
322, 43 U.S.C. 1063.
Congress passed the UIA specifically to prevent the unlawful enclosure of public
lands, and the Tenth Circuit has specifically recognized that the prohibition against
unlawful enclosures applies not just to people, but to wild animals. In 1988, well before the
2013 Consent Decree was signed, the Tenth Circuit held that the UIA prohibits enclosures
that limit access of wild animals, including antelope, to BLM lands: “the UIA prohibition
against enclosing public lands was not limited to people….that clause does not contain the
word ‘person’ and neither does the Court believe that ‘person’ from the preceding clause
should be read into it…According to the statute, “all enclosures of public
lands…are...declared to be unlawful.”54
BLM’s removal of all but 500 wild horses from the Wyoming Checkerboard allows
RSGA to build a “virtual fence” around two million acres of checkerboard lands, excluding
wild horses from over a million acres of public lands owned and managed on behalf of the
American people.
The language of the 2013 Consent Decree demonstrates that, in spite of the agency’s
obligations under the Unlawful Inclosures of Public Lands Act, BLM relinquished the
public’s right to the use of over a million acres of public lands. For example, while the
Consent Decree notes that RSGA holds only “a grazing permit from the BLM for the
See Leo Sheep Co. v United States, 440 U.S. 668, 99 S. Ct. 1403, (1979).
See United States ex rel. Bergen v. Lawrence, 848 F. 2d 1502, 1508-1509 (10th Cir. Wyo.
1988); cert. denied, Lawrence v. United States, 488 U.S. 980, 109 S. Ct. 528 (1988).
53
54
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alternating sections of the public lands within the Wyoming Checkerboard,”55 the Consent
Decree also states:
RSGA reached an agreement with wild horse advocacy groups to
tolerate 500 wild horses on the Checkerboard in January 1979,
once “BLM has proven that they are capable of managing the wild
horses with respect to numbers of horses to be allowed in the
Rock Springs District.”56 (Emphasis added.)
Such language appears not only in the 2013 Consent Decree, but has been carried
forward as recently as the 2015 EA for the 2014 Checkerboard Removal, which specifies
that, BLM determined that “the appropriate management level for the horse herds on
the Salt Wells/Pilot Butte checkerboard lands is that level agreed to by the
landowners in that area,” and that “[a]ll horses on the checkerboard above such
levels [set by the private landowners] are ‘excess’ within the meaning of 16 U.S.C.
1332(f).”57
While the U.S. District Court of Wyoming in 1979 ordered BLM to “remove all wild
horses from the checkerboard grazing lands except that number with the RSGA voluntarily
agrees to leave in said area,” and the 2013 Consent Decree specifically references the
Unlawful Inclosures of Public Lands Act, BLM has never addressed a critical issue central to
its obligation to manage wild horses on behalf of the American people: setting AMLs based
purely on the needs of a private grazing organization that incorporated for the purpose of
controlling two million acres, well over half of which are owned by the Federal
government, constitutes the very type of “enclosure” of Federal public lands made unlawful
under the UIA.
Sincerely,
Andrea Gelfuso
Andrea Gelfuso
Public Lands Attorney
Wildlife Law Program
Friends of Animals
2013 Consent Decree at 2.
Id.
57
2015 Checkerboard Removal EA at 2, citing Mountain States Legal Foundation v. Watt, No.
C79-275K, Order Amending Judgement Pro Tunc (D. Wyo. February 19, 1982).
55
56
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Western Region Office
7500 E. Arapahoe Rd., Suite 385
Centennial, CO 80112
andreagelfuso@friendsofanimals.org
720-949-7791