Administration Takes Aim at Laws Protecting Wild Horses and Burros

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The Trump Administration is proposing a significant weakening of the National Environmental Policy Act (NEPA), the first major federal environmental law ever enacted that serves as the basis for sound, fair, and transparent protections for our environment. (You can watch a video explaining NEPA here.)

The effort to weaken NEPA could have devastating consequences for America’s wild horses and burros and the public lands on which they live. Unfortunately, NEPA isn’t the only law in the crosshairs. Other fundamental laws that protect wild horses and burros are on the chopping block as well.

Here’s an overview of these laws and the efforts to undermine them.

NEPA

Passed into law in 1970, NEPA requires all federal agencies, including the Bureau of Land Management (BLM) and United States Forest Service, to evaluate the environmental impacts of agency actions through Categorical Exclusions (CXs), Environmental Assessments (EAs) or Environmental Impact Statements (EISs).  NEPA applies to any major project, whether on a federal, state, or local level, that involves federal funding, work performed by the federal government, or permits issued by a federal agency. 

Often referred to as the “environmental Magna Carte,” NEPA holds federal government agencies accountable for disclosing environmental effects on local communities and opens the political process up to all Americans by allowing for public comments.

The Council on Environmental Quality (CEQ), a division within the Executive Office of the President, was created to ensure that federal agencies meet their obligations under NEPA.

Last August, through Executive Order 13807 (EO) President Trump requested that the CEQ revise the NEPA process to “enhance and modernize the Federal environmental review and authorization process.”  According to the Administration, complying with NEPA takes too long, is too expensive, and is redundant with other legislation, all of which hinder the “partnering” of the federal government with public and corporate development. 

The intent of this effort to undermine NEPA is to minimize environmental review requirements and speed up development of federal lands by mining, oil/gas, timber, and other commercial extraction industries.

Recently the American Wild Horse Campaign (AWHC), along with hundreds of other environmental, wildlife protection, and public interest groups, submitted public comments to the CEQ strongly opposing the proposed weakening of NEPA.

BLM’s Plan for NEPA

In response to the President’s Executive Order, Ryan Zinke, Secretary of the Interior, directed the BLM to “streamline” the NEPA  process by identifying and recommending “results-oriented improvements” via Secretarial Order 3355.

In response, the BLM submitted a report containing over 75 recommendations to dramatically roll back environmental protections. The BLM-proposed changes to NEPA compliance would not only endanger air, water, and wildlife on BLM-managed federal lands but also would strip the American public of its opportunity to be informed and weigh in on proposals. 

Because the BLM manages approximately 245 million acres of public land in Western states where much  of our country’s livestock grazing, logging, and mining as well as and oil and gas development takes place, the NEPA process is particularly important. Each year, the BLM competes more than 5,000 NEPA documents.  Several dozen a year or more relate to the BLM’s management of wild horses and burros, and the agency’s attempts to undermine NEPA will have severe consequences for our national herds.

In its report to Zinke, BLM seeks to unilaterally exclude virtually all wild horse and burro management activities from NEPA by including them broadly under a Categorical Exclusion from NEPA.

Categorical Exclusions (CXs) apply to federal actions that do not significantly affect the environment and do not require in-depth analysis through and Environmental Assessment (EA) or an Environmental Impact Statement (EIS).

Wild horse and burro activities that BLM wants to exempt from NEPA analysis via a CX include:

  • All roundup operations – including helicopter drives, bait trapping and other capture methods;
  • Sales of excess wild horses and burros;
  • Application of population growth suppression techniques to wild horses and burros, including contraception and permanent, surgical sterilization in the form of spaying mares and gelding stallions; and
  • Euthanasia of excess wild horses and burros for which an adoption or sale demand does not exist.

In its report to Congress on options for wild horse and burro management, the BLM added to this list the sterilization of wild horses and burros for the purpose of managing Herd Management Areas as non-reproducing in whole or in part.

By issuing blanket Categorical Exclusions for all of these activities, the BLM would be given carte blanche to proceed with policies that will have profound and widespread negative impacts on wild herds without any of the requirements for disclosure, analysis and public input currently required under NEPA.

This is particularly disturbing in light of this administration’s attempts to legalize mass slaughter, “euthanasia” and sterilization of mares and stallions. The push to weaken NEPA would eliminate the requirement for public input into policies that are widely opposed by the American people and eliminate the current requirements for disclosure and analysis of policies that will have devastating consequences for America’s federally-protected wild horse and burro herds.

Other Laws on the Chopping Block

In its report to Interior, the BLM is also proposing weakening other laws that currently protect wild horses and burros by promoting government accountability. These include:

Freedom of Information Act

The Freedom of Information Act (FOIA) is a bedrock law in our democracy that provides American citizens the right to obtain previously undisclosed information and documents from any federal agency by filing public record requests.

But, according to the BLM, responding to FOIA requests is too burdensome because it diverts

agency resources and delays the decision-making process. So, the BLM recommended these changes to FOIA requests in its report:

  • Providing the BLM with expanded exemptions under FOIA to protect the confidentiality of “sensitive” information shared by State, Local and Tribal governments. (p. 13)
  • Limiting the number of FOIA requests from any one group, requiring more stringent justification for

fee waivers, and increasing search and redaction fees so an agency can recover all of its direct costs related to the FOIA request. (p. 15)

Often, filing FOIA requests is the only way that advocacy groups and private citizens can obtain information on the BLM’s Wild Horse and Burro Program.  FOIA requests have initiated or supported multiple investigations the BLM management, or mismanagement, of our wild horses and burros and exposed mass killing plans that sparked nationwide outrage.  (A FOIA request served as the basis for the 2012 ProPublica article that exposed the BLM for illegally selling nearly 2,000 horses to a Colorado kill buyer.)  The BLM’s proposed changes to its compliance with FOIA will serve to chill this law, limit the information that is available under it, and restrict the ability of the American public to obtain information that it has a right to access. The result could significantly hamper efforts to expose government mismanagement and hold this agency accountable for its use of our tax dollars and its treatment of our federally-protected wild horses and burros.

Interior Board of Land Appeals Regulations

The Interior Board of Land Appeals (IBLA) is a review body that decides appeals of final decisions of agencies and departments within the Department of the Interior. It is separate and independent from the bureaus and offices whose decisions it reviews.  

In its report, the BLM recommended amending the IBLA regulations for wild horse and burro activities to shorten the appeals period from 30 days to 15 days and the time to respond to an appeal from 45 days to 30 days. (p. 18)

Reducing the appeals period and the response time would make filing appeals more difficult for advocacy groups and/or private citizens and speed up the roundup approval process.

Wild Free-Roaming Horses and Burros Act

According to the BLM, the plethora of lawsuits that wild horse advocacy groups, among others, file around controversial “actions” related to the federal Wild Free-Roaming Horses and Burros Act end up delaying “less controversial non-gather actions.” (p. 18)

Therefore, the BLM is recommending that the Act be amended to allow for immediate implementation of non-roundup related decisions like remote darting for fertility control.

While fast tracking fertility control sounds appealing, especially because the BLM is so reluctant to use it as a management tool, other more controversial activities that could be fast-tracked include surgical sterilization of wild horses and burros or the destruction of “excess “ wild horses and burros though euthanasia or sale for slaughter. These are actions are highly likely to provoke litigation and the BLM is clearly trying to make legal challenges more difficult.

In its report to Congress, the BLM outlined other legislative changes to the Wild Horse Act that it would Congress to consider. These include:

  1. Provide that animals that are sale-eligible, pursuant to the Wild Free-Roaming Horses and Burros Act, are no longer subject to the protections of the Act, and should be offered for sale as soon as is practicable.
  2.  Stipulate that areas identified for long-term management may be managed as non-reproducing herds, in whole or part, through the use of surgical and/or chemical sterilization methods.
  3. Lower the sale-eligibility age from older than 10 years to older than 5 years.
  4. Eliminate the provision that limits an adopter to acquire title to only 4 animals per year.
  5. Reduce the time to title an adopted wild horse and burro from 1 year to 6 months.
  6. Provide a) for transfer of wild horses and burros to nonprofit organizations or other countries for humanitarian purposes or to promote economic development outside the United States, and b) that such transfer causes animals to lose their status as wild horses and burros under the Act.
  7. Enable the BLM to redirect receipts from sales towards gathering and removing excess wild horses and burros from the range instead of using those funds for the adoption program.
  8. Provide permanent authority to transfer excess wild horses or burros that have been removed from the public lands to other Federal, state, and local government agencies for use as work animals.

AWHC would vigorously oppose any of these revisions, which would seriously undermine the nearly 50 year-old law unanimously enacted by Congress to protect America’s wild horses and burros on our Western public lands.

Revising Equal Access to Justice Act

Equally disturbing, the BLM, in its report to Zinke, recommended asking Congress to revise the Equal Access to Justice Act. (EAJA)  Enacted in 1980, the EAJA allows individuals, small businesses, and public interest groups to obtain attorney fees when they take legal action against the federal government and win. 

But if the BLM has its ways, EAJA would not only eliminate or reduce the award of attorney fees for successful lawsuits against federal agencies but also create a “mechanism” for those agencies to recover any fees or costs they incur when they successfully defend a NEPA analysis and/or implementation decision (p. 15).

This requested change could severely discourage the filing of lawsuits regarding wild horses and burros management.

Conclusion

Secretary Ryan Zinke may have ridden a horse to his first day of work at the Interior Department, but since that day he’s pursued a trail of destruction for America’s wild herds. The policies and undermining of laws that Zinke and his BLM are proposing would have lasting and devastating consequences for our wild horses and burros. As always, we the people are the line that stands between these cherished animals and doom, and we must continue to let Congress know that Americans oppose this this Administration’s destructive policies.