The Wild Mare Experiments Were Halted! Now What?

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Brieanah Schwartz, American Wild Horse Campaign

Update - December 3, 2018

On November 2, 2018, the US District Court in Oregon issued an injunction to block the BLM from proceeding with the cruel sterilization experiments proposed to be conducted on wild mares recently captured from the Warm Springs Herd Management Area (HMA).

The court issued the injunction in response to the lawsuit filed by AWHC, and our coalition partners The Cloud Foundation and the Animal Welfare Institute. In response, the BLM notified AWHC on November 7 that it would be withdrawing the Decision Record authorizing the experiments. As in 2016, our lawsuit stopped the BLM from proceeding with these cruel and risky surgeries on wild mares.

For those of you following this case, below is an update on what has transpired since early November when the BLM announced that it was pulling the plug on the controversial experiments.

  1. Motions Filed by the Government

On November 21, 2018, the government filed two motions with the court. The first, is a 60-day extension on filing their Answer which is a response to our initial complaint in this case. (The answer is part of the normal court process and is a standard document that the opposing party files after the plaintiff files a complaint.) Here, the agency noted that the reason it sought an extension was so that it could deal with complaints filed by other entities with the Interior Board of Land Appeals (IBLA) against the experiments. BLM’s goal was to have the IBLA vacate the appeals and remand the decision authorizing the spay study back to BLM before the answer was filed. We consented to this motion and the court granted the agency the additional 60 days. Now their Answer is due on January 25, 2019.

The second motion asked the court for clarification of some of the language in the court’s order that granted our preliminary injunction. Specifically, the agency wanted the court to clarify whether the agency is prevented from implementing this decision or whether it is prevented from performing this experiment anywhere under any decision. (Decision in this context refers to the BLM’s NEPA decision document for the spay study.) In other words, the BLM wanted to know if the order held a broad effect or was specific to this set of facts. Since our case focused only on this set of facts, and this decision document, we did not feel that such a clarification was necessary and planned to oppose this motion. However, before we could, the court granted the motion:

ORDER: GRANTING Defendants' Motion for Clarification. The Order of Preliminary Injunction enjoins Defendants from undertaking the portion of the 9/12/2018 Decision Record relating to the planned sterilization procedure. No other action is enjoined by the Order of Preliminary Injunction. Ordered by Judge Michael W. Mosman.

  1. IBLA Vacates BLM’s Decision Authorizing the Spay Study

On November 29, 2018, the government informed our legal team that the IBLA vacated the appeals and remanded the decision authorizing the spay study back to BLM so the agency could formally withdraw it. This decision clearly notes that our litigation is what prompted BLM to withdraw the decision by stating that before the IBLA could adjudicate the appeals before them, the BLM filed a Motion to Vacate and Remand.

“BLM states in those Motions that a group of wild horse advocates that was not a party to any of the consolidated appeals before the Board challenged the decision on appeal in the United States District Court for the District of Oregon and filed a motion to preliminarily enjoin the spay study…. BLM represents that, because of the court’s ruling, BLM reviewed the decision here on appeal and ‘has determined that it wishes to rescind’ the decision.”

In short, the IBLA noted that the BLM asked the IBLA to remand the matter to BLM because of the court’s decision to grant our preliminary injunction. The IBLA never ruled on the appeals before it.

In addition, the agency asked IBLA to vacate the entire decision, and the IBLA did. This means that BLM has no decision in place for what it plans to do with these horses. One of the appellants requested that the IBLA rule on the merits of their appeal despite the BLM’s decision to withdraw the decision, but the IBLA declined to do so.

We will update you when we hear the agency’s plan for the horses it removed from the Warm Springs HMA.


Update - November 20, 2018

1. Court issues formal order barring BLM from proceeding with mare sterilization experiments. 

On November 13, 2018 the U.S. District Court in Oregon published its written order. You can read it here

2. BLM moves to dismiss IBLA Appeals after the court grants our motion for an injunction to block BLM from proceeding with mare sterilization experiments.

As we reported earlier this month, the BLM is seeking to vacate appeals filed with the Interior Board of Land Appeals (IBLA) against the agency's decsion to proceed with the mare sterilization experiments. The BLM has informed AWHC and our co-plaintiffs that it intends to rescind the decision because of our litigation. The agency is asking the IBLA to vacate and remand the case to the BLM so that it can formally rescind the dccision. This is in an effort to wrap up all loose ends in the case so that the agency can officially abandon the study.

On November 14, 2018 Attorney Advisor Ty Bair sent a letter to interested parties stating that "the BLM cannot rescind the [Decision Record (DR)] while [it] is under appeal to the Board Benton C. Cavin, 166 IBLA 78, 82 (2005). Accordingly, the BLM moves the Board to remand the DR back to the BLM. The BLM has not yet determined any future course of action it might wish to consider related to the spay study. Any such future actions would be identified in a future Decision Record."


ORIGINAL STORY

On November 2nd, Judge Michael Mosman granted our motion for preliminary injunction. This meant that the court ordered the government to halt all plans to proceed with the BLM’s proposed mare sterilization experiments until the court had time to fully consider our lawsuit against them.  Simply put, a federal court halted the experiments that day. Go here for more information.

Our federal litigation – filed by Meyer Glitzenstein and Eubanks on behalf of AWHC and our co-plaintiffs the Animal Welfare Institute, The Cloud Foundation and photographer Carol Walker—targets the BLM’s violation of three federal laws in approving the inhumane experiments, as well as the agency’s failure to provide adequate public observation as required by the First Amendment.

In addition to this litigation (and another case filed in Washington, DC by Front Range Equine Rescue on which there has been no action), multiple appeals have also been filed with the Interior Board of Land Appeals (IBLA) to stay the agency’s spay decision. An appeal to the IBLA is an administrative option that anyone can pursue after the agency has made a final decision on an action. Once an appeal is filed with the IBLA, the challenged action will be automatically delayed. This means that prior to the November 2 oral argument in our case, the experiments were delayed until the end of November, or until the IBLA made a decision on the case. We chose not to pursue an appeal with the IBLA because in our experience, the IBLA – which is part of the Interior Department – routinely rules in favor of the BLM in environmental matters. For this reason, we chose to pursue our legal arguments in court—where we prevailed in securing an injunction to halt the experiments.

And stop them we did… again. On November 7th, government attorneys informed our attorneys that,rather than argue against us in court, the government now plans to abandon the experiments altogether. (The government also dropped plans to proceed with the experiments in 2016 after we filed for an injunction to stop them.)

So, what happens next?

First, the government filed a motion with the court asking the court to wait on issuing a written order granting our preliminary injunction until the BLM can wrap up all the administrative aspects that are involved in abandoning these experiments. We opposed this motion because the judge had already granted our motion for a preliminary injunction in an oral ruling. Therefore, there was no reason to wait to publish the order. Simply put, issuing the order stating that we received our preliminary injunction will not impair the agency from wrapping up the administrative aspects of abandoning the experiments.

Next, because the IBLA has still not ruled on the appeal that was filed, the agency must ask the IBLA to vacate and remand the case to the BLM. This is in an effort to wrap up all loose ends in the case so that the agency may officially abandon the study.

What will happen to the horses that are in holding?

The environmental assessment that the agency reviewed with the spay experiments included a management plan. Now that the experiments are being abandoned by the BLM, the agency is left with the management plan. In the management plan, the agency stated that it will permanently remove all excess horses from the HMA. This means that it is most likely that the agency will only release 111 horses, or the low Appropriate Management Level (AML) for the HMA. The agency also considered a contingency plan if spaying was found to be unsuccessful. This plan included the implementation of PZP. For more information on the management plan, please see the Environmental Assessment starting on p. 31.  Although we do not yet know exactly what the agency will do, the most likely outcome is that it will release horses to bring the population to low AML and use PZP as ongoing fertility control.

We will keep you updated as we learn more!