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Wild horse advocates make next move in Wyoming checkerboard case

Wild horses in Wyoming.

Wild horses in Wyoming. © BLM

Wild horse advocates have lost a legal bid for a temporary injunction to stop the muster of mustangs from the checkerboard lands of Wyoming, but they have been granted more time to allow for an appeal.

Late on Thursday, the US District Court in Wyoming granted an emergency injunction to delay until September 12 the planned roundup of more than 800 wild horses by the Bureau of Land Management (BLM) from public and private lands in the Adobe Town, Salt Wells Creek and Great Divide Basin Herd Management Areas (HMAs).

The three HMAs total about 2,427,220 acres, with 1,242,176 acres falling within the checkerboard region – so-named because of its alternating public and private land parcels.

Under the muster plan, wild horses will remain in the non-checkerboard sections of the HMAs. About 800 wild horses are to be targeted.

The planned muster complies with an agreement between the bureau and a group of local ranchers involving the removal of the horses from private lands.

The latest injunction allows the American Wild Horse Preservation Campaign, the Cloud Foundation, Return to Freedom and wild horse photographers Carol Walker and Kimerlee Curyl the chance to appeal the district court’s denial of a motion for a preliminary injunction to stop the roundup, which was also issued late on Thursday.

The advocates said in a statement they were disappointed by the court’s denial of their longer-term preliminary injunction request, but pleased a further delay was ordered to allow for an appeal.

“This decision illegally elevates the interests of a small group of private landholders and ranchers over the broader interest of the American public and our federally protected wild horses,” the plaintiffs asserted.

“We look forward to the opportunity to challenge this decision in the US Court of Appeals for the Tenth Circuit.

“The ruling fails to hold the BLM to account for its flagrant violation of the National Environmental Policy Act and the Wild Free-Roaming Horses and Burros Act.”

They noted that more than 40,600 individuals had signed a petition opposing this wild horse roundup. They claimed their voices were being ignored, with the BLM siding with ranchers who grazed livestock on public lands.

“We are hopeful that the Tenth Circuit will reverse the district court’s decision to allow the BLM to trounce federal law and the will of the people by proceeding with this unprecedented wild horse roundup without even attempting to comply with governing laws on federally protected public land.

“At stake is the integrity of well-established laws that govern the BLM’s management of our public lands.”

Chief United States District Court Nancy Freudenthal, in her ruling, said the advocates had argued that, while the Wyoming checkerboard was a unique pattern of land ownership that added difficulty to the management of wild horse populations, it did not allow the BLM to avoid its statutory obligations under the Wild Free-Roaming Horses and Burros Act (WHA) and the National Environmental Policy Act.

The judge said the petitioners claimed the BLM had “run roughshod” over all of its legal obligations by relying on Section 4 obligations to arrange removal of wild horses that strayed on to private lands.

“BLM argues the fact that some public lands are involved in the gather does not change its duty, and it has no practical ability to segregate wild horses that reside on private lands from those that reside on public lands within the Checkerboard at any one point in time.

“In short, BLM argues Petitioners place it in an impossible situation.”

The judge ruled that the petitioners had not met the required requisite burden, so their bid for a preliminary injunction was denied.

“Both this Court and the Tenth Circuit recognized that BLM is forced to manage the alternating land pattern of the Checkerboard as a single unit,” she said.

The plaintiffs filed their lawsuit on August 1. They are represented in the case by the public interest Washington DC law firm of Meyer Glitzenstein & Crystal.

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  1. Louie C says:

    There appears to be disturbing conflict of interests here.

    http://www.wywf.org/nancyfreudenthal.html

    Energy and environmental issues have been Freudenthal’s catalyst for thought. She was a partner in the law firm of Davis & Canon before being nominated to federal judgeship.
    Perhaps the most notorious tidbit of her career springs from partnerships. Her husband, Governor Dave Freudenthal, nominated her along with two others to President Barack Obama for the position of federal judge for the United States District Court of the District Court Wyoming with the missive that “I thought about that long and hard, and the question really came down to (was) should she be penalized for having married me.”

  2. Shane Destry says:

    “Chief United States District Court Nancy Freudenthal, in her ruling, said the advocates had argued that, while the Wyoming checkerboard was a unique pattern of land ownership that added difficulty to the management of wild horse populations, it did not allow the BLM to avoid its statutory obligations under the Wild Free-Roaming Horses and Burros Act (WHA) and the National Environmental Policy Act…“Both this Court and the Tenth Circuit recognized that BLM is forced to manage the alternating land pattern of the Checkerboard as a single unit,” she said.” Fruedenthal’s arguments are specious. The primary obligation imposed upon the BLM
    by the 1971 federal law protecting them are to prevent them from being removed for any reason from their native ranges and to ensure that they are not subject to harassment or shipment to slaughter even if they wander off into private lands ! The fact that the BLM is “forced to manage” a checkerboard pattern, an arbitrary arrangement partly of their own inept creation is irrelevant to abiding by their primarily legal obligation not to remove wild horses from public lands or allow them to be later sold into slaughter. A judge’s responsibility is to prioritize the chief obligation of the BLM – to protect wild horses- not to focus on the esoteric and irrelevant bureaucracy of “management according to a checkerboard pattern”. The chief legal obligation of the BLM is to save wild horses from suffering and death not to make it easier to facilitate the interests of frackers and welfare cattlemen in stealing land and water from our wild horses.

  3. Louie C says:

    This is the Legal Declaration that was presented in the original lawsuit.
    Was this ignored?

    https://docs.google.com/file/d/15XxDMsR1HKkjS_tWEb4QDIEKvMwrrSoiWlxlFWfbkLe8-boHU1lBYiuqd6pH/edit?pli=1
    1. DECLARATION OF LLOYD EISENHAUER

    Katherine A. Meyer
    Meyer Glitzenstein & Crystal
    1601 Connecticut Ave., N.W.
    Suite 700
    Washington, D.C. 20009
    (202) 588-5206
    Timothy Kingston
    408 West 23rd Street, Suite 1
    Cheyenne, WY 82001-3519
    (WY Bar No. 6-2720)
    (307) 638-8885

    Attorneys for Defendant-Intervenors
    IN THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF WYOMING
    Rock Springs Grazing Association, Case No. 2:11-cv-00263-NDF
    Plaintiff,
    v.
    Ken Salazar, et al.,
    Defendants,
    DECLARATION OF LLOYD EISENHAUER

    I, Lloyd Eisenhauer, declare as follows:

    1. I live in Cheyenne, Wyoming. I am a former Bureau of Land Management
    (“BLM”) official with extensive experience in the Rawlins and Rock Springs Districts in Wyoming and intimate familiarity with the public lands under BLM management in those areas. I have reviewed the consent decree proposed by BLM and the Rock Springs Grazing Association (“RSGA”) in this case and provide this declaration based on my longstanding knowledge of, and management of, wild horses and livestock grazing in the Rock Springs and Rawlins Districts.

    2. I grew up in Pine Bluffs, Wyoming with a livestock and farming background, served in the Marines for four years, and then owned a livestock business from 1952-1958. I enrolled in college in 1958, studying range management. From 1960-1961, BLM hired me to assist with collecting field data for vegetation assessments and carrying capacity surveys related to livestock and wild horses. These surveys were conducted in the Lander, Kemmerer, and Rawlins Districts. When I graduated in 1962, BLM hired me full-time to serve in the Rawlins District in Wyoming, where most of my work focused on grazing management involving sheep, cattle, and wild horses. From 1968-1972, I was Area Manager of the Baggs-Great Divide Resource Area in the Rawlins District. In 1971, the Wild Free-Roaming Horses and Burros Act was enacted, and in the spring of 1972, on behalf of BLM, I conducted the first aerial survey of wild horses in Wyoming, recording the number of horses and designating the Herd Management Areas (“HMAs”) for the Rawlins District. After a stint as an Area Manager with BLM’s Albuquerque, New Mexico office, in 1975 I took over as the Chief of Planning and Environmental Analysis in BLM’s Rock Springs District for three years. I was the lead on all planning and environmental assessments. During that time, I also served as the Acting Area Manager of the Salt Wells Resource Area, which is located in the Rock Springs District. In 1979, BLM transferred me to its Denver Service Center to serve as the Team Leader in creating the agency’s automated process for data collection. I received an excellence of service award from the Secretary of the Interior commending me for my work as a Team Leader. In 1982, I became the Head of Automation in BLM’s Cheyenne office, where I managed and implemented the data collection and processing of various systems related to BLM programs. I retired from BLM in 1986, and have stayed very involved in the issue of wild horse and livestock management on BLM lands in Wyoming, and have written articles about the issue in local and other newspaper outlets. I have won various journalistic awards, including a Presidential award, for my coverage of conservation districts in Wyoming. Along with a partner, I operated a tour business (called Backcountry Tours) for six years, taking various groups into wild places in Wyoming – without a doubt wild horses were the most popular thing to see on a tour, in large part due to their cultural and historical value. I also served six years on the governor’s non-point source water quality task force.

    3. Based on my longstanding knowledge of wild horse and livestock management in the Rawlins and Rock Springs Districts, and in the Wyoming Checkerboard in particular, I am very concerned about BLM’s agreement with RSGA, embodied in the proposed Consent Decree they have filed in this case, under which BLM would remove all wild horses located on RSGA’s private lands on the Wyoming Checkerboard.

    4. The Checkerboard is governed by an exchange of use agreement between the federal government and private parties such as RSGA. However, due to state laws, property lines, and intermingled lands, it is impossible to fence the lands of the Wyoming Checkerboard, which means that both the wild horses and the livestock that graze there roam freely between public and private lands on the Checkerboard without any physical barriers. For this reason, it is illogical for BLM to commit to removing wild horses that are on the “private” lands RSGA owns or leases because those same horses are likely to be on public BLM lands (for example, the Salt Wells, Adobe Town, Great Divide, and White Mountains HMAs) earlier in that same day or later that same evening. Essentially, in contrast to other areas of the country where wild horses still exist, on the Wyoming Checkerborad there is no way to distinguish between horses on “private” lands and those on public lands, and therefore it would be unprecedented, and indeed impossible for BLM to contend that it is removing all horses on RSGA’s “private” lands at any given time of the year, month, or day, considering that those horses would only be on the strictly “private” lands very temporarily and intermittently on any particular day .

    5. Another major concern with BLM’s agreement to remove all horses from the private lands of the Wyoming Checkerboard is that BLM is undermining the laws that apply to the Checkerboard, and wild horse management in general, which I implemented during my time as a BLM official. Traditionally, BLM officials (myself included) have understood that, pursuant to the Wild Horse Act, wild horses have a right to use BLM lands, so long as their population numbers do not cause unacceptable damage to vegetation or other resources. In stark contrast, however, livestock (sheep and cattle) have no similar right to use BLM lands; rather, livestock owners may be granted the privilege of using BLM lands for livestock grazing pursuant to a grazing permit that is granted by BLM under the Taylor Grazing Act, but that privilege can be revoked, modified, or amended by BLM for various reasons, including for damage to vegetation or other resources caused by livestock, or due to sparse forage available to sustain livestock after wild horses are accounted for. BLM’s tentative agreement here does the opposite and instead prioritizes livestock over wild horses, by proposing to remove hundreds of wild horses from the Wyoming Checkerboard without reducing livestock numbers – which, in my view, is contrary to the laws governing BLM’s actions as those mandates were explained to me and administered during the decades that I was a BLM official.

    6. While I do not agree with every management action taken by BLM over the years in the Rock Springs District, I can attest – based on my longstanding employment with BLM and my active monitoring of the agency’s activities during retirement – that BLM has generally proven capable of removing wild horses in the Rock Springs District, including by responding to emergency situations when needed and removing horses when necessary due to resource damage.

    7. Considering that wild horses exhibit different foraging patterns and movement patterns than sheep and cattle, and also than big game such as antelope and elk, no sound biological basis exists for permanently removing wild horses from the Wyoming Checkerboard at this time. In particular, wild horses tend to hang out in the uplands at a greater distance from water sources until they come to briefly drink water every day or two, whereas livestock congregate near water sources and riparian habitat causing concentrated damage to vegetation and soil. For this reason, the impacts of wild horses are far less noticeable on the Checkerboard than impacts from livestock.

    8. In addition, because livestock tend to eat somewhat different forage than wild horses (horses tend to eat coarser vegetation such as Canadian wild rye and other bunch grasses, whereas cattle and sheep mostly eat softer grasses), there is no justification to remove wild horses on the basis that insufficient forage exists to support the current population of wild horses. Also, because cattle and sheep have no front teeth on the front part of their upper jaws, they tend to pull and tear grasses or other forage out by the root causing some long-term damage to vegetation, whereas wild horses, which have front teeth on both their front upper and lower jaws, act more like a lawnmower and just clip the grass or forage (leaving the root uninjured), allowing the vegetation to quickly grow back. These differences are extremely significant because if there were a need to reduce the use of these BLM lands by animals to preserve these public lands, it might be cattle and sheep – not wild horses – that should be reduced to gain the most benefit for the lands, and which is why BLM, during my time as an agency official, focused on reducing livestock grazing.

    9. BLM’s agreement with RSGA states that RSGA’s conservation plan limited livestock grazing, primarily by sheep, to the winter months to provide sufficient winter forage. This is a good example of “multiple use” management, since wild horses and sheep have very little competition for the forage they consume and the seasons during which they use parts of the Checkerboard. During winter, sheep use the high deserts and horses utilize the uplands and breaks (i.e., different locations) for forage and protection. During the summer, when sheep are not present, wild horses use various landscapes on the Checkerboard. This multiple use should continue for the benefit of the livestock, the wild horses, and the public and private lands involved.
    10. I am also very concerned about BLM’s agreement with RSGA to permanently zero out the Salt Wells HMA and the Divide Basin HMA, leaving no wild horses in those areas that have long contained wild horses. I have been to fifteen of the sixteen HMAs in Wyoming, and to my knowledge none has ever been zeroed out by BLM. It is my view, based on everything I know about these areas and the way these public lands are used by wild horses and livestock, that BLM has no biological or ecological basis for zeroing out a herd of wild horses in an HMA that existed at the time the wild horse statute was passed in 1971, as is the case with both the Salt Wells and Divide Basin HMAs. And, again, because the wild horses have a statutory right to be there, whereas livestock only have a privilege that can be revoked at any time by BLM, there also is no authority or precedent, to my knowledge, for the agency to zero out these two longstanding wild horse herds simply to appease private livestock grazers.

    11. The zeroing out of wild horses in the Salt Wells and Divide Basin HMAs is also concerning because it would mean that, in those two longstanding HMAs, there would no longer be the “multiple use” of these public lands as required by both the Wild Horse Act and the Federal Land Policy and Management Act. Currently, while there are other uses of this public land, such as by wildlife, hunters, and recreational users, the two primary uses in those HMAs are by wild horses and livestock. If BLM proceeds with its agreement with RSGA to zero out wild horses in those HMAs, the only major use remaining would be livestock use, meaning that there would be no multiple use of those BLM lands. Not only will that potentially undermine the laws that BLM officials must implement here, but it has practical adverse effects on the resources – multiple use is very beneficial for the environment, and particularly for sensitive vegetation, because different users (e.g., livestock, wild horses) use the lands and vegetation in different ways. When that is eliminated, the resources are subjected to an unnatural use of the lands which can cause severe long-term damage to the vegetation. As a result, zeroing out these herds would likely bedevastating for the vegetation in these two HMAs, because livestock would be by far the predominant use in this area.

    12. Turning the White Mountain HMA into a non-reproducing herd, as the agreement between BLM and RSGA proposes to do, is also a farce, and violates the meaning of a wild and free-roaming animal. This is essentially a slow-motion zeroing out of this HMA, and is inconsistent with any wild horse management approach I am familiar with that BLM has implemented on public lands.
    Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct.
    Lloyd Eisenhauer

    • cindy mendoza says:

      wow,is going to testify for us louie,god i hope so.let me know.

    • Barbara Griffith says:

      Mr. Eisenhauer

      Would you be interested in being a witness and testifying in court using your abundant knowledge of the area and its problems? You may be just the one to save these horses. I hope you will offer your services.

  4. Sue carter says:

    Although, the “ownership” is attributed To Private owners, most, if not all is owned by Anadarko Oil and the Rock Springs Grazing Association. The Checkerboard Pattern is unworkable. The obvious fix is a land swap. Federal relinquishment of alternate blocks. Giving the horses and BLM the upper blocks near White Mountain.

  5. TerryW says:

    What other wild animal in this country is not allowed to step foot on private land??????

    If these ranchers wanted all elk and deer off of their private land, what would they do? Call the federal wildlife dept and demand they be removed? Because really there is no difference here.

    “a group of local ranchers involving the removal of the horses from private lands”

    I think as long as privately owned livestock are allowed to graze in federally designated wild horse herd areas, then wild horses should be allowed to graze private lands as well.

    If you don’t want wild horses on your private lands then get out and stay out of wild horse herd areas.

    As long as wild horses have been utilizing the checkerboard (and all federal lands are checkerboarded with state and private), and we’re talking several decades to several centuries of wild horses using these “checkerboard” lands, they if nothing else should be GRANDFATHERED in.

    • IcySpots says:

      Let’s not forget that Wyoming is a FENCE OUT state, which means private landowners in all other instances are required by law to FENCE OUT animals they do not want to have traversing their private land. The fact that the checkerboard makes this inconvenient doesn’t change the facts.
      In addition, each “square” of the checkerboard is about one square mile… plenty of other ranches have miles upon miles of fences. Why is this privately owned land considered an exception?

      • IcySpots says:

        Also the extreme irony here should be pointed out. The FENCE OUT laws are a vestige of white settlement days, when animals were grazed in the open range in what was quite literally a “free for all” situation. Anyone settling and farming was thus legally obliged to fence out the vast herds of cattle and sheep freely roaming the range, if they wanted to harvest any crops for themselves.

        Thus the laws formed to protect cattle and sheep producers are being categorically ignored when the shoe is on the other foot, protecting a species these same for-profit interests consider valueless.

        Why?

  6. Louie C says:

    CONDITIONS WORSEN FOR CAPTIVE NATIVE WILD HORSES AND BURROS
    http://horsebackmagazine.com/h

    August 30, 2014

    The Bureau of Land Management, Native Wild Horse & Burro holding facility, located in Palomino Valley, Nevada, has taken a turn for the worse.

    Last year, citizens of Nevada and from across the country, including veterinarians, many animal and equine welfare organizations expressed deep concern, for the welfare of the horses and burros held within this facility, over inhumane treatment, animal abuse and neglect, caused by failure to simply provide basic needed shelter and more drinking water troughs, to prevent doctor warned heat
    related and suffering and death, for many horses and burros.

    Located in high desert, approximately 1,800 horses and burros held within the BLM’s, Palomino Valley Center, are fenced within cages, with no shelter, provided no way to escape, life threatening Summer desert sun’s blazing hot rays, or Winter’s freezing cold storms.

    A visit to the BLM’s, PVC facility, yesterday by wild horse advocate and Nevada, resident Patty Bumgarner, uncovered further health and safety concerns for horses, burros and also near by humans. A large insect infested manure filled pond, caused by this week’s rains, is located standing, openly behind the horse pens. Bumgarner, noted swarming insects flying and birds gathering eating
    insects, but no BLM staff was seen working to alleviate the apparent health hazard. This week’s rains, created concern of flooding upon the playa, that caused Burning Man to delay their opening, is located near the BLM’s Palomino Valley Center, facility.

    Dr. Lester Friedlander BA DVM, former Chief USDA Inspector, President of Citizens Against Equine Slaughter, expressed his medical opinion about this situation: “The stagnant water is a very good breeding ground for Mosquitoes. Mosquitoes are carriers of the West Nile Virus and other Diseases.. It has been well documented thru out the United States that horses got sick and then died.
    Veterinarians who did the Necropsies of these horses did isolate the West Nile Virus. It should be of Public Health Significance that no water lay stagnant, to prevent Mosquitoes from laying their eggs in the water; since West Nile Virus affects both Humans and Animals. The stagnant Water should be drained or kept moving until it is dispersed into the soil.”

    Upon Bumgarner’s arrival at approximately 11:30 am., she visited the BLM air conditioned offices and heard acting Director Jeb Beck, instructing several BLM employees to keep the water cool in the troughs, for the horses. There was no discussion, to erect needed shelters, nor to remedy the standing water pond. When Bumgarner, left the facility just before noon, the temperature already had
    risen to 92 degrees, with an expected high temperature forecast of 97 degrees. The Bureau of Land Management pens are mainly barren, shelterless and in full Sun, barren soil in 104 degree temperatures may reach 148 degrees or
    higher, posing serious risk for the captive horses and burros.

    Photo: Patty Bumgarner, large still water pond provides a perfect breeding ground for mosquitoes, BLM’s Palomino Valley Center, Nevada

    PHOTO: Patty Bumgarner, BLM’s Palomino Valley Center, located in high desert, a burro seeks shade beneath another burro,

  7. Louie C says:

    America’s Wild Horses and Burros should NEVER have been removed from their Legal Herd Management Areas in the first place.

    The answer to the “problem” is to put them back where they so rightfully belong.

    http://www.habitatforhorses.org/a-biologists-response-to-the-blms-wild-horse-problem/

    A biologist’s response to the BLM’s wild horse “problem” (excerpt)
    By Robert C. Bauer

    REPRODUCTION, MORTALITY, AND OVERPOPULATION IN WILD EQUIDS by ROBERT C. BAUER,
    B.S. in Biology

    The rangelands, however, can easily sustain not only the wild horses and burros existing out there now, but also every one of those in holding facilities, which now number well over 40,000.

    The truth is that every one of those wild horses and burros in holding facilities, if released back to the areas from which they were taken, along with those in the wild, would help bring the balance back to the rangelands, a balance that is so very vital!

  8. Louie C says:

    CONDITIONS WORSEN FOR CAPTIVE NATIVE WILD HORSES AND BURROS
    http://horsebackmagazine.com/hb/archives/31425

  9. Barbara Griffith says:

    With the information that Mr. Eisenhauer declared in the first lawsuit that wasn’t used it looks like the judge is on the side of the ranchers like it always is.
    Can the lawsuit be moved out of Wyoming? The horses will never get a fair trial in this area or the state. From reading the declaration by Mr. Eisenhauer in the previous lawsuit it looks like it was ignored because of the damage that the truth would have caused to the ranchers, exposing their outright lies about the so called damage to the range the horses were causing. All of the ranchers know who is causing the damage they don’t have to feed their own livestock the way all of the ranchers in the rest of the US have to do. They prefer to destroy the horses instead. Once the horses are gone the BLM will never say one word about the damage that could take years to repair to the range if the cattle and sheep were removed today. The horses don’t have a chance with the BLM controlling what happens to them. But who controls the BLM??

  10. Louie C says:

    It’s hard to see how the Wild Horses could ever get a fair trial in Wyoming.

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