(October 15, 2020) As the Bureau of Land Management’s (BLM) summer roundup season comes to a close and the winter season picks up speed, we wanted to delve into the instances of wild horse removals on private lands. This summer we saw increased private land removals, as an excuse to permanently remove wild horses and burros from the range, often on private lands within and immediately adjacent to wild horse habitat areas.

Where did it happen?

According to the BLM’s roundup schedule, since January 2020 the BLM has conducted 8 roundup operations that were conducted to remove wild horses and burros from private lands within or immediately adjacent to public land Herd Management Areas (HMAs). Some of those operations included:

• Havasu HMA, Arizona: Between this past May and September, the BLM removed 138 wild burros from private land within the HMA via bait trapping, water trapping, or both after landowner complaints about private property damage.
• Big Sandy HMA, Arizona: Between this past July and September, the BLM removed 350 wild burros from private land outside of the HMA via bait and/or water trapping after the BLM claims it received complaints from private landowners regarding wild burros that are creating nuisance situations on private land.
• South Steens HMA, Oregon: This September the roundup removed 218 wild horses from private property within and outside the southern boundary of the HMA. 

How do they conduct these operations?

More often than not, these operations will be conducted with the use of bait or water trapping. In these circumstances, hay or water is set in a temporary trap on private lands in order to entice wild horses or burros into the trap for removal. Sometimes, the BLM will utilize helicopters for private land removals. The decisions on what method to use depend on the area of private lands, where the animals are found on those lands, and the condition of the lands (because, for example, where there is ample forage the horses may not be interested in a bait trap). 

Unfortunately, both because these traps are on private land and because the use of the trap itself is a situation where the BLM does not allow public observation, we cannot observe and document these operations for the public.

How can the BLM do this?

With regard to private lands, Section 4 of the Wild Horse Act grants BLM the authority to remove wild free-roaming horses or burros that “stray from public lands onto privately owned lands,” provided that the landowner notify the agency, which then “shall arrange to have the animals removed.” 16 U.S.C. § 1334. By its plain terms, Section 4 of the WHA applies only to animals that “stray from public lands onto privately owned lands.” Id. The Section does not provide any authority to willfully remove or entice wild horses off of public lands. BLM’s own regulations specify that any “removal of strayed animals from private lands” must be based on a “written request” that “shall indicate the numbers of wild horses or burros” that have strayed onto private lands. 43 C.F.R. § 4720.2-1.

Importantly, AWHC’s own litigation has clarified and protected wild horses that the BLM seeks to remove under this provision. For example, in the Tenth Circuit case American Wild Horse Preservation Campaign v. Jewell, 847 F.3d 1174, 1187 (10th Cir. 2016), the court found that according to the Wild Horse Act, the BLM may not respond to a Section 4 removal request by treating public lands as private lands. If BLM wishes to simultaneously remove wild horses from public lands as part of a response to a Section 4 request regarding private lands, the agency “must abide by the plain terms of Section 3.” Id.

Section 3 of the Wild Horse Act grants BLM the authority to manage and protect wild horses by permanently removing “excess” horses from public lands, but only after BLM specifically determines that: (1) “an overpopulation [of wild horses] exists on a given area of the public lands,” and (2) “action is necessary to remove excess animals.” 16 U.S.C. § 1333(b)(2). An “excess” wild horse is defined as one that “must be removed from an area in order to preserve and maintain a thriving natural ecological balance . . . in that area.” 16 U.S.C. § 1332(f) (emphasis added). Once BLM makes a formal “excess determination,” it may remove only those “excess animals from the range so as to achieve appropriate management levels.” 16 U.S.C. § 1333(b)(2). As such, and as our litigation made clear, any removal of wild horses from public lands requires a valid excess determination and horses cannot simply be removed because the BLM may already be in an HMA removing horses because of a private landowner complaint.

In short, under the WHA, when the BLM is responding to a request under Section 4, to remove wild horses that have strayed from public lands onto private lands, if the agency wishes to simultaneously remove wild horses from public lands, it may not ignore the requirements of Section 3 and the National Environmental Policy Act (NEPA). 

What can be done instead?

Instead of removals, the BLM could work with stakeholders, especially those who own land within the HMAs, to educate them on ways to protect their land from wild horse and burro use. In the alternative, these landowners could become partners in humane, sustainable wild horse and burro management. For example, instead of simply removing these horses, the BLM could train the landowners that complain to the agency to administer PZP fertility control and bring them into the conversation so that they understand how to document the mares that are inoculated and track their dose history. 

AWHC focuses heavily on public education. In fact, we work with private landowners to find creative solutions and common ground so that our wild horses and burros can stay protected and wild for generations to come.

Brieanah Schwartz is Policy Counsel for the American Wild Horse Campaign.  Schwartz received her J.D. from the University of Maryland Francis King Carey School of Law in Baltimore, Maryland and graduated with a concentration in Environmental Law. She is now barred in the District of Columbia. Brieanah is responsible for advancing AWHC’s position before Congress and this administration, for producing comments that AWHC submits, and for assisting the litigation teams on all of AWHC’s active cases. A long-time lover of wild horses, she self-published a book with her photography and research on the Cumberland Island wild horses while she attended Sweet Briar College in Sweet Briar, Virginia. She currently resides in Washington, D.C. area with her horse, Eire, dogs, Lady, Drover, and Dandy, and kitten, Pippy.