On Monday, March 2, 2015, the U.S. District Court for the District of Wyoming held an oral argument on the lawsuit filed by the American Wild Horse Preservation Campaign, The Cloud Foundation, Return to Freedom, Carol Walker and Kimerlee Curyl against the Bureau of Land Management (BLM) for its fall 2014 Wyoming Checkerboard wild horse roundup.
The Honorable Nancy Freudenthal, a federal court judge and former First Lady of Wyoming, presided over a packed courtroom at the University of Wyoming College of Law. William Eubanks of Meyer Glitzenstein & Crystal represented AWHPC, et al., squaring off against four lawyers for the defense. Two of the opposing counsel were from the Department of Justice (DOJ) on behalf of BLM, and two were from the Rock Springs Grazing Association and State of Wyoming, which had previously been granted the right to intervene in the case.
At issue in the lawsuit was the BLM’s roundup and removal of 1,263 wild horses from the checkerboard portions of the Adobe Town, Salt Wells Creek and Great Divide Basin Herd Management Areas (HMAs) between September 15 and October 9, 2014. The Wyoming Checkerboard is a two-million acre area of alternating public and private land parcels one square mile each in size. The private land parcels in the checkerboard are controlled by the Rock Springs Grazing Association (RSGA). RSGA members also hold permits to graze their livestock on the public lands parcels of the checkerboard, where they enjoy below-market, taxpayer-subsidized grazing fees.
In July 2011, RSGA sued the BLM, stating that it was reneging on an earlier agreement to allow a certain number of wild horses on its private lands in the checkerboard. The RSGA informed the government that it would no longer “tolerate” the presence of wild horses on their private lands in the checkerboard and, as a result, demanded that all horses removed from both the public and private land parcels in the area. In April 2013, the BLM settled the case by signing a consent decree that calls for removal of all wild horses from public and private lands in the checkerboard. (For more information, please see How the Interior Department Sold Out America’s Wild Horses by journalist Andrew Cohen.)
The 2013 consent decree formed the basis of BLM’s decision to roundup all the horses from checkerboard lands in the Adobe Town, Salt Wells and Great Divide Basin HMAs in the fall of 2014. On August 1, 2014, AWHPC, et. al. filed suit against the BLM. The district court denied our motion for a preliminary injunction to stop the roundup, as did a two-judge panel at the Tenth Circuit Court of Appeals. The roundup proceeded, as did the lawsuit, which culminated with the oral argument on March 2.
In the courtroom on Monday, Eubanks skillfully delivered opening arguments for the plaintiffs, explaining clearly that the case before the judge was not moot, as the government had argued, and why the BLM’s actions in the 2014 roundup constituted serious and precedent-setting violations of the law.
Eubanks coherently countered the government’s claim that because the roundup was over, the case was moot by reminding the court that remedies are still available to the plaintiffs, even though the roundup was completed in fall 2014. These remedies include the return to the range of captured horses – six hundred of which remain at the BLM’s corrals in Rock Springs, Wyoming. In addition, the judge could enjoin the BLM from repeating its illegal actions when it conducts the next checkerboard roundup, which could be scheduled as early as this summer in the White Mountain HMA.
Eubanks turned to the merits by clearly outlining three categories of BLM’s legal violations. First, he explained that the BLM violated the Wild Free Roaming Horses and Burros Act (“Wild Horse Act”) when it used Section 4 of the law, which applies specifically to the removal of horses from private land, to remove wild horses from the public lands. Eubanks clarified that the BLM illegally evaded all the requirements for removing horses from public land, which constitutes 70 percent of the HMAs in question. These requirements include preparation of an environmental analysis, providing public notice and opportunity to comment, making a determination that “excess” horses exist, and ensuring that these areas maintain wild horse population levels at numbers previously determined by BLM to be necessary to satisfy various legal mandates.
“This is the first time in the history of the Wild Horse Act that the BLM has used Section 4 to remove horses from the public lands,” Eubanks observed, noting that the action had “huge implications throughout the American West.”
“What stops the BLM from doing this in every HMA?” he asked Judge Freudenthal.
Second, Eubanks pointed out that BLM violated the National Environmental Policy Act (NEPA) by failing to prepare an Environmental Assessment (EA) and provide an opportunity for the public to comment on the proposed removal of an estimated 600 wild horses from the public lands in the checkerboard. Instead, the BLM issued a “categorical exclusion” from environmental review, something it can only do for removal of wild horses from private lands.
Third, the BLM violated the Federal Land Policy and Management Act (FLPMA) and its own resource management plans by reducing the wild horse populations in each of the three HMAs to levels far below the minimum number required by the agency’s own land use plans. This minimum requirement is referred to as the low “Appropriate Management Level” (AML).
To comply with the law, Eubanks told the judge, the BLM could have released horses removed from the checkerboard back into the public lands blocks in each HMA in order to maintain each of the populations at the minimum levels (low AML) established under the BLM’s land use plans and required by federal law. Judge Freudenthal asked several questions about this claim and came back to this point several times throughout the arguments.
Next it was the defense’s turn and two attorneys for the DOJ argued first. Essentially they tried to convince the judge that the case is moot because the roundup is over and therefore there is no agency action to challenge. They asserted that there was no “reasonable expectation” that Petitioners will encounter this situation again because we “just don’t know” if the BLM will proceed in this manner again. The legal mechanism for moving forward with the next roundup of wild horses from the checkerboard, which will take place in the White Mountain HMA, is “undetermined” and we should “wait until White Mountain” happens. Essentially the DOJ was saying that the court could not review the legality of BLM’s past actions because the agency may not authorize similar actions again in the future.
On the other points, the DOJ attorneys maintained that the BLM was not violating NEPA and its land use plans because it was not “managing horses below AML” because “AML remains the same” even though the populations may have been reduced below AML after the roundup. The DOJ attorneys suggested that the horse populations were not reduced to levels as low as AWHPC had referred to, citing a recent aerial survey in Salt Wells and suggesting that the plaintiffs’ population estimates were based on their “own calculations and math.” When the judge asked a question on this point, our attorney had the opportunity to clarify that the population estimates we cited were not based on our calculations, but rather a declaration –- submitted to the court by the DOJ attorneys themselves -- of a BLM employee regarding the post-roundup population estimates.
To the DOJ’s points regarding AML, Judge Freudenthal asked whether it might have been better to wait until the AMLs were changed before reducing the populations below the minimum population level. She said it appeared to be a “tail wagging the dog” situation.
The DOJ also denied any NEPA violations, stating that the Categorical Exclusion was a form of NEPA compliance for a roundup conducted to “protect RSGA’s private landowner rights.”
Next, Connie Brooks argued on behalf of the RSGA, going into detail about the various agreements between the RSGA and BLM regarding how many horses on the checkerboard the RSGA “would allow.” She suggested that compliance with Section 3 of the Wild Horse Act was discretionary because the “Wyoming checkerboard is unique” as is the RSGA’s agreement with the BLM to “tolerate” horses on the private land blocks. She suggested that putting wild horses removed from the checkerboard back on the public lands “didn’t make a lot of sense” because BLM would be releasing them just across the border of the checkerboard and the horses would return to checkerboard lands in a matter of days, if not hours. (In his rebuttal, --Eubanks – the AWHPC et al. attorney -- clarified that the public lands blocks are so large, that horses could be released a full 70 miles from the checkerboard border.)
Judge Freudenthal asked the RSGA attorney, “Why not concede to a FLPMA violation and agree to no more activity until remedied?” In other words, why not admit that the BLM’s reduction of the wild horse populations in the three HMAs to below minimum AMLs was illegal and agree not to do conduct any further actions until completion of the land use processes necessary to officially reduce the AMLs in the three HMAs. Brooks replied that RSGA could “live with it for a year, but not for 4-5 years” while the processes were underway.
Ending the defendants' arguments was a lawyer from the Wyoming Attorney General’s Office. He offered a novel theory that “Section 4 [of the Wild Horse Act] doesn’t require that horses’ hooves are on private land.” He suggested that any horse that strayed at any time from the public land onto private land could be considered a “stray” and removed from the public land under Section 4. Therefore, if the BLM received a request from a landowner to remove horses, the agency was then obligated to also remove from the public lands horses that may at some point stray onto private lands. If that rationale were valid (which it clearly is not), it would be a recipe for removal of wild horses from HMAs across the West, since most HMAs contain and are bordered by private land!
Eubanks returned to the podium for a five-minute rebuttal during which he succinctly drove our case home. “Nothing in the consent decree [between the BLM and the RSGA] allows the BLM to do what they have done here, “ he said. “The actions are unprecedented and cannot be sustained.” He suggested that if the judge finds in our favor on any of the merits points, she consider holding a separate round of briefing on the remedies.
One of the DOJ attorneys had the opportunity to add his final thoughts and he chose to end with a threat. If the remedy involved putting horses back on the public lands in the three HMAs, it could “provoke a response” from the RSGA in which they would renege on their agreement to tolerate a certain number of horses in the checkerboard. “the consent decree goes away” in that case, he concluded.
The judge thanked everyone and said that she would take the arguments under advisement and issue a ruling in the near future.
It was clear to those of us present (Suzanne Roy for AWHPC; Jennifer Maramonte, AWHPC supporter; Carol Walker; Ginger Kathrens and Linda Hanick for the Cloud Foundation; and Lucy Powers, wild horse advocate from Colorado) that our attorney carried the day. The Associated Press coverage of the hearing also reflects the impressive case that Eubanks presented to the court.
Judge Freudenthal delivered her ruling the day following the hearing, finding that BLM did in fact violate the National Environmental Policy Act (NEPA) by failing to conduct an analysis of the impacts of the roundup on the natural environment and by failing to consider alternatives to the proposed action. She remanded the case back to the BLM to remedy the violations.
Unfortunately, the judge ruled against AWHPC et al. on the other two claims, finding that the BLM could use a request by a landowner for removal of wild horses from private lands (Section 4 of the Wild Horse Act) to remove wild horses from the public lands as well. In addition, despite her questions and statements in the hearing regarding the FLPMA violations, she ruled that BLM had not, in fact, violated FLPMA because the AMLs for the three HMAs were based on agreement with the RSGA that has since been revoked. Since the RSGA has decided that it will no longer tolerate wild horses on its private checkerboard lands in the three HMAs, the court found that BLM is obligated to remove them from both the public and private lands in the checkerboard.
While we are very glad that the court agreed with us that BLM failed to comply with NEPA, we are disappointed with the ruling on our Wild Horse Act and FLPMA claims and are in the process of considering our options as BLM attempts to comply with her ruling on remand in a public NEPA process.
Meanwhile, 600 wild horses that were captured in the roundup remain in Wyoming at BLM’s Rock Springs Corral. One of the alternatives that the BLM must now consider is returning some of those horses to the public lands blocks of the HMAs. The public should have a right to input into this alternatives consideration, and we will continue to closely follow this matter and keep AWHPC supporters informed of all developments.
For more information about this case, click here.