By Scott Sonner, Associated Press
RENO, Nevada — A federal judge cleared the way Wednesday for a Nevada tribe to sell 149 mustangs over the objection of critics who claim the unbranded animals are federally protected wild horses that should not be auctioned off for possible slaughter.
U.S. District Judge Miranda Du lifted an emergency restraining order she put in place last week temporarily blocking the sale of any adult horses without brands among the more than 400 recently gathered near the Nevada-Oregon line.
After hearing conflicting testimony during a hearing in Reno Wednesday about whether the mustangs exhibited wild behavior, Du ruled the U.S. Forest Service acted appropriately in determining the Fort McDermitt Paiute-Shoshone Tribe is the animals' rightful owner and can't be stopped from selling them.
Earlier Wednesday, Du indicated in a related case that she's unlikely to grant a blanket prohibition on any roundups from a big herd near the Oregon line because government land managers insist they don't intend to gather any more mustangs there for at least two years.
She said there doesn't appear to be a legal basis to grant horse advocates' request for a temporary injunction regarding roundups in the U.S. Bureau of Land Management's Owyhee horse complex given BLM's representation that none of the more than 1,000 mustangs there will be gathered for two or three years.
Du said written orders would follow in both cases.
In regard to the BLM, she said she would consider during a regular court schedule in the months ahead the claims by Wild Horse Education leader Laura Leigh of Reno and others that such roundups are illegal because the agency has failed to provide the necessary documentation that the federal rangeland in question is overpopulated with mustangs.
The Fort McDermitt tribe sold the majority of the more than 400 horses it had gathered during an auction on Saturday at the Fallon Livestock Exchange about 60 miles east of Reno.
The 149 that carried no brands were held out of the sale that made the animals available to purchase for slaughter after Du granted an emergency order late Friday night sought by the American Wild Horse Preservation Campaign and others based on allegations the mustangs originated on national forest and BLM land and therefore protected under the Wild Free Roaming Horse and Burro Act of 1971.
"Unless someone can prove they are not a wild, a horse that exhibits wild horse behavior and is not branded, it is a wild horse," Katherine Meyer, a lawyer for the horse advocates, said via a telephone hookup from Washington.
But Du concluded the opponents of the sale had failed to prove a temporary injunction should remain in place after a longtime member of the horse campaign who routinely monitors wild horse roundups and a Nevada state brand inspector offered contradictory testimony about whether the horses without brands exhibited such characteristics.
"It's the exact same behavior I've observed at roundups," said Deniz Bolbol, a horse advocate who examined the horses at the Fallon auction yard last weekend.
"These horses showed no signs of having familiarity with humans and every sign of fear of humans," she said. "They moved in a group clustered together and circled together consistent with undomesticated, unbroken horses. They were bashing their heads against the chute trying to escape."
But Chris Miller, a Nevada brand inspector, testified to the exact opposite.
"They didn't want to try to escape from us, which you'd expect a wild horse to do," Miller said. "We were able to walk among them within a few feet and the horses were not excited."
It wasn't immediately clear when the remaining unbranded horses being held in Fallon would be put back up for auction.
Erik Petersen, a Justice Department lawyer representing the Forest Service and BLM, said the opponents had no legal basis to prevent the private sale of the horses.
"These horses are tribal horses and they have the full right to gather up their horses whenever they want to," he said.