By Tom McGhee, Denver Post
September 19, 2016
The U.S. Court of Appeals in Denver heard a case Monday that will decide if the BLM, the agency that oversees the government’s free-roaming wild horse program, can remove mustangs from public land in Wyoming at the request of a private landowner.
Wyoming is a party in the case as well, siding with the Bureau of Land Management’s position that a landowner’s request to remove horses from adjacent public land is sufficient to trigger the removal from adjacent public land.
In 2014, the BLM removed 1,263 federally protected horses from the Wyoming Checkerboard area, a 2 million-plus acre strip of land near Rock Springs that includes both public, and private, property parcels, separated by few fences.
Property owners whose livestock graze their land requested the removal.
Last year, a federal judge in Wyoming ruled that the removal violated the National Environmental Policy Act because the agency failed to consider alternatives to removal.
But Chief Judge Nancy Freudenthal, of the U.S. District Court of Wyoming, also ruled that the agency could comply with a request from a private owner to remove wild horses from public land adjacent to private property.
The American Wild Horse Preservation Campaign, and other advocates, appealed Freudenthal’s decision, saying that section 3 of the Wild Horse Act requires the BLM to make a formal determination that too many wild horses are present on BLM lands, and that they must be removed to maintain a natural ecological balance. The BLM made no such determination before the 2014 Checkerboard roundup.
BLM roundups, called “gathers,” use helicopters to herd the animals, and horses can run miles crossing multiple public and private boundaries before they are trapped.
The animals’ mobility complicates efforts to gather the horses only on public land.
Judge Mary Beck Briscoe, one of three justices hearing the case, said the close proximity of public and private property boundaries makes management of the animals difficult. “What we have here is an overwhelming mess.”
William S. Eubanks, a lawyer for the advocates, said there are areas throughout the west where horses roam and public and private property are adjacent to each other. At least 20 areas are similar to Wyoming’s Checkerboard, a crowded patchwork of public and private land.
A court ruling in favor of Wyoming’s position would have ramifications throughout the west, he told the three-judge panel.
Wyoming is trying to “protect the rights of private citizens in Wyoming,” said Erik Petersen, Wyoming senior assistant attorney General.
A decision in favor of the BLM would benefit ranchers by eliminating the federally protected animals from land where they belong, Suzanne Roy, executive director of the American Wild Horse Preservation Campaign, said after the hearing.
The court also heard a second case involving the horses, a Wyoming lawsuit against the BLM demanding the agency remove hundreds of mustangs from federal land throughout the state.
The BLM argues that before removing animals it must first determine that overpopulation exists in a herd management area, and that the horses must be removed to assure ecological balance.
In 2015, the Wyoming federal district court dismissed Wyoming’s suit, saying the state failed to state a viable legal claim. Wyoming appealed that ruling.