Food & Agriculture Quarterly January 2019 | Page 7

FOOD & AGRICULTURE QUARTERLY | JANUARY 2019
Access to public lands is vital to western agricultural
economies because private land is scarce, expensive
and often already put to use for forage or otherwise
unavailable for livestock grazing. These same public
lands are home to wild horses that compete with
livestock for forage and water.
In managing public lands across 10 western states,
the federal Bureau of Land Management (BLM) must
balance rangeland health with wild horse populations
and the rights of ranchers holding grazing
permits. The issue is that wild horse populations
are collectively more than 200 percent above the
population limits set in BLM land-use plans and
rising. When wild horses are overpopulated in areas
shared with cattle or sheep, grazing permitees
cannot utilize their full allotment of forage and must
eliminate livestock in order to avoid wholly depleting
rangeland resources.
The BLM has a statutory obligation to remedy
rangeland ecological imbalances. Under the Wild
Free-Roaming Horses and Burros Act of 1971 (WHA),
the BLM is required to compile and maintain current
inventories of wild horses and burros on given areas
of the public lands. Inventories are used both to
designate appropriate herd management areas
(HMAs) and to determine the corresponding wild
horse population range that such HMA can support.
Where an overpopulation exists in a given area,
the BLM has wide discretion in how it addresses
that overpopulation, although the statutory duty
to remove excess wild horses is clear. Courts have
interpreted the WHA to mandate that the BLM act
expeditiously (i.e. as soon as logistically possible)
to remove excess wild horses once the agency
determines that an overpopulation exists in a
given area and action is necessary to remove that
overpopulation. The BLM has made such a triggering
determination regarding wild horse overpopulation
in an area known as the Caliente Complex, which
consists of an estimated 911,892 acres of public
lands in Nevada. The BLM had concluded in a 2008
Final Resource Management Plan encompassing
the Caliente Complex that there was not enough
forage and habitat for any wild horses. A 2018 Final
Environmental Assessment for the Caliente Complex
Wild Horse Gather implements the BLM’s decision
to round up and permanently remove all wild horses
from the Caliente Complex.
But, on June 28, 2018, two wild horse advocate
groups and the Western Watersheds Project filed a
legal challenge in D.C. federal court to this decision,
alleging that the BLM has illegally chosen grazing
over wild horse protection in violation of the WHA.
This case—styled American Wild Horse Campaign
v. Zinke—illustrates how the BLM is caught between
the proverbial “rock and a hard place.” Past litigation
between livestock groups and the BLM demonstrates
the former’s frustration with delayed action in
removal of excess wild horses. Yet, the complaint
in American Wild Horse Campaign v. Zinke paints a
picture of bureaucratic favoritism to livestock grazing
on public lands, as the BLM continues to allow
cattle and sheep to remain in the Caliente Complex.
Because the BLM is obligated to administer public
lands for “multiple use,” the court will have to decide
whether the agency’s decision to eliminate wild horse
use, while permitting grazing on the same public
lands, violates federal law. This litigation is poised
to have profound financial ramifications for ranchers
that graze their livestock on these arid Nevada
rangelands. As of mid-November, the defendants
have submitted a certified index to the administrative
record: documents from the Caliente Field Office
relevant to the BLM’s challenged decision.
The American Wild Horse Campaign is also one
of the groups that filed a recent federal lawsuit in
Oregon, Kathrens v. Zinke. The suit seeks to halt
research by the BLM into a permanent sterilization
technique for wild mares roaming federal rangelands.
The claims in that case are grounded in the First
Amendment and the Administrative Procedures
Act. On Nov. 13, 2018, in a win for the plaintiffs, U.S.
District Judge Michael Mosman granted Plaintiffs’
Motion for a Preliminary Injunction, ordering that the
BLM could not undertake the sterilization procedure
at issue under further court order. Defendants have
until Jan. 25, 2019, to respond to the Complaint.
Devan Flahive is an associate who
concentrates her practice in oil
and gas, antitrust and litigation.
She can be reached at dflahive@
porterwright.com or 614.227.1989.
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