© by Laura Allen, Executive Director, Animal Law CoalitionIt's time for a public Congressional hearing and investigation of BLM's management of America's wild horses and burros including the new plan recently announced by DOI and BLM.
In the meantime and pending decisions about the course of the wild horse and burro program, there should be a moratorium on gathers.
On October 7, 2009 Dept. of Interior Secretary Ken Salazar and Bureau of Land Management Director Bob Abbey announced a new 3 part plan for managing America's wild horses and burros in the future. But, other than a press release and a letter to Sen. Harry Reid (D-NV), the specifics of the plan have not been made public. As Mr. Abbey said in the press conference held on Oct. 7, 2009, there are "thousands" of wild horse and burro enthusiasts who care about the fate of these animals. There are also innumerable experts and citizens concerned about BLM's management of these American icons.
There should be a public hearing and investigation held by Congress regarding BLM's management of America's wild horses and burros particularly before yet another plan essentially approved only by BLM and DOI is put in place. There should be a moratorium on all gathers until Congress has completed public hearings and an investigation and reached a decision about the appropriate management of these animals consistent with the laws that protect them. These are after all America's wild horses and burros.
The Wild Free Roaming Horses and Burros Act (WFRHBA) directs BLM to manage America's wild horses and burros to "maintain free roaming behavior". All management activities by law are to be at the "minimal feasible level". Under WFRHBA America's wild horses and burros are entitled to humane treatment and to remain free from "capture, ...harassment, or death".
But, instead, the BLM largely manages these animals by running them down with helicopters and gathering or removing them from public lands to holding facilities, separating families, injuring and even killing horses in the process. A terrifying ordeal that leaves wild horses and burros in holding pens where few are adopted, many are sold for slaughter and still more languish, their spirits and bodies broken. The operation of holding facilities will consume about 70% of the total 2009 budget for these animals. Surely, that is contrary, to say the least, to the directive of the WFRHBA. Indeed, U.S. District Court Judge Rosemary Collyer found in her August 5, 2009 opinion: "It would be anomalous to infer that by authorizing the custodian of the wild-free roaming horses and burros to manage them, Congress intended to permit the animals' custodian to subvert the primary policy of the statute by capturing and removing from the wild the very animals that congress sought to protect from being removed from the wild." Colorado Wild Horse and Burro Coalition, Inc. v. Salazar, No. 06-1609 (D.D.C 2009)
Mr. Salazar insists that "arid western lands and watersheds" can't support the few wild horses that remain "without significant damage to the environment" and "degrading public lands". These are reasons typically stated by BLM in its environmental assessments and environmental impact statements to support removals of wild horses and burros from herd areas. And, just as typically, there are no specifics to support these claims. For more examples....
Indeed, Mr. Salazar and BLM do not mention the thousands of cattle grazing and drinking and fouling water on these lands, BLM's land sales, development, increasing recreational use, and mining as well diversion of water from herd areas. Wildlife ecologists say if public lands are "degraded", something that is disputed, these factors are far more to blame. In fact, citizens living in the areas where there are wild horses and burros, including small ranchers, contradict BLM's assessments the range is "degraded" or lacks sufficient water for these few remaining animals.
Note that in 1990 BLM claimed the range was the best it had been in the last century. Yet, since then, there has been an increase in the numbers of wild horses and burros removed from the range. There is also no question BLM has routinely renewed grazing permits, finding the range satisfactory for grazing cattle and at the same time, issue environmental assessments that claim the very same range cannot support the few wild horses and burros that remain. BLM has also relied on outdated or what can only be called completely false assessments in its apparent zeal to justify removal of wild horses and burros.
Shouldn't Congress at least have a hearing or investigate whether BLM's claims are true? Shouldn't Congress consider whether BLM should even continue as the manager of the wild horses and burros program? An agency that has turned the WFRHBA on its head and instead of managing to maintain free roaming behavior, does so by removing and penning wild horses and burros.
It is also questionable whether BLM really has the authority, as it claims, to manage America's wild horses and burros in all respects pursuant to a multiple use concept. Though WFRHBA mentions "multiple-use relationship" in connection with specified ranges, it is very clear that the directive is to manage these animals otherwise only to "maintain a thriving natural ecological balance on the public lands" and "protect the natural ecological balance of all wildlife species which inhabit such lands, particularly endangered wildlife species".
In effect, WFRHBA authorizes only limited interference with wild horses and burros in herd areas where they were living in 1971. Nothing about removing wild horses and burros from herd areas where they lived in 1971 to allow multiple use such as cattle grazing, recreation for off road vehicles, mining or development. Also, protecting the ecological balance of all wildlife has never meant rounding up and removing whole species. Especially when there is a law that explicitly protects their right to exist in historic herd areas. Even designated ranges managed under a multiple use concept are to be "devoted principally" to wild horses and burros. The wild horses and burros on these lands are not to be eliminated for cattle or mining or recreation or even secondary to these other uses.
Despite the limited authority to interfere with wild horses and burros under WFRHBA, the BLM has decided, however, the multiple public use concept applies to all herd areas as well as ranges. BLM even issued a regulation that effectively rewrites WFRHBA to say the "objectives of these regulations are management of wild horses and burros as an integral part of the natural system of the public lands under the principle of multiple use". 43 CFR § 4700.0-2 Yet, the WFRHBA says only that wild horses and burros "are to be considered in the area where presently found, as an integral part of the natural system of the public lands". 16 U.S.C. §1331.
The BLM has also authorized itself to divide herd areas into "herd management areas", something not authorized by WFRHBA. 43 CFR 4710.3-1. In this way, with no statutory authority at all, BLM has limited wild horses and burros' access to thousands of acres that were historically their herd areas. This is done without thought about the horses' seasonal migration patterns or available resources. The BLM then removes wild horses and burros from the artificially created "herd management areas" on the basis there is insufficient forage, water or habitat! BLM also targets them for removal if they cross the artificial boundaries into their original herd areas.
While BLM has authorized itself to create divide herd areas into Herd Management Areas, its own regulations provide that "management of wild horses and burros shall be undertaken with the objective of limiting the animals' distribution to herd areas, 43 C.F.R. § 4710.4."Herd area" is defined by regulation as "the geographic area identified as having been used by a herd as its habitat in 1971," 43 C.F.R. §4710.4.
Another example of BLM's erosion of the WFRHBA protections is the rewording of the WFRHBA mandate "[a]ll management activities shall be at the minimal feasible level". BLM's regulation says "[m]anagement shall be at the minimum level necessary to attain the objectives identified in approved land use plans and herd management area plans." 43 CFR 4710.4, 16 U.S.C. §1333. Two very different laws. So if a land use plan authorizes a land giveaway or increased recreation or mining, "management...at a minimum level" can mean round up and removal, according to the BLM.
The Federal Land Policy Management Act requires management of public lands under concepts of multiple use and sustained yield. 43 U.S.C. §§ 1701, et seq. But the multiple use concept does not trump the WFRHBA protections for wild horses. In fact, the statute makes clear that the protections under WFRHBA take precedence. FLPMA, 43 U.S.C. § 1732 (a) Yet, despite this, BLM has issued a regulation that provides "[w]ild horses and burros shall be considered comparably with other resource values in the formulation of land use plans." 43 C.F.R. §4700.0-6(b).
The BLM's land use plans make clear that contrary to WFRHBA, it does not decide to remove wild horses and burros only to maintain a "thriving natural ecological balance to the range, and protect the range from the deterioration associated with overpopulation". Nor are the protected wild horse ranges "devoted principally" to the use of wild horses and burros. Instead, the BLM clearly embraces the multiple use concept for all lands designated for wild horses and burros. Indeed, the plan seems to be to eliminate or zero out the wild horses and burros in favor of increased development and recreational use, mining, and cattle.
Surely, BLM's fast and loose interpretation of the WFRHBA is more than sufficient for Congress to take a look, hold a public hearing and investigate before America's icon is lost forever.
It should be noted that BLM has also virtually ignored the directive in the WFRHBA to "maintain a current inventory of wild free-roaming horses and burros on given areas of the public lands". 16 U.S.C. §1333(b). According to WFRHBA, the inventory is critical in determining appropriate management levels or AML and whether there is indeed an overpopulation or excess horses and burros. Yet, BLM has gathered and removed thousands of horses without the important information necessary to determine if the removal is legal. It's time to take a look, an independent census and standardize AML determinations. It is important for Congress to open up for public review the work of an agency that has operated largely in secret, offering the public generally pre-determined courses of action, making a joke out of the public comment process. It is also time BLM or whatever agency that is put in charge of the wild horses and burros took seriously the WFRHBA mandate requiring consultation not with special interests but also a range of independent experts recommended by the National Academy of Sciences, the states and those with "scientific expertise and special knowledge of wild horse and burro protection...[and] wildlife management". 16 U.S.C. §1333(b).
Congress should hold public hearings and investigate Secretary Salazar's plan in particular. There are innumerable experts outside of the BLM who should have an opportunity to weigh in on how BLM continues to manage America's wild horses and burros.
Secretary Salazar delivered the following 3 part proposal to Sen. Reid: 1. BLM will work with non-profits and the "thousands" of wild horse enthusiasts to create sanctuaries and preserves in the Midwest or east. In fact, BLM appears to have already decided on sever preserves. It is not known who is involved in these transactions or how BLM decided on these preserves. Surely, the public is entitled to know how this happened. Mr. Salazar says tourism would be encouraged and could provide a source of revenue. But the mandate of the WFRHBA is to avoid such zoo-like settings for these American icons. The idea, the law, in fact, is that these animals are to remain free to roam on the public lands where they were living in 1971 when the Act went into effect.
2. Mr. Salazar will designate more ranges for wild horses. He cited the Pryor Mountain herd, recently rounded up and decimated, as an example of a range under BLM protection.
3. This is one of the most troubling aspects of Mr. Salazar and Mr. Abbey's plan. They say BLM will work to restore the "sustainability" of herds and public lands. BLM will continue to round up and remove horses but step up "fertility control", monitor sex ratios, and introduce non-reproducing herds. More like BLM will work toward the extinction of herds. The obvious concern is how a herd that is non-reproducing or sterilized can remain self-sustaining, genetically viable, as mandated by law. There are serious questions here about BLM's determination of sex ratios. These proposals will have a very negative effect on herds and herd behavior. This plan euphemistically referred to as "restoring sustainability" during the press conference, is, in fact, the opposite, a plan to exterminate the wild horses and burros and in doing so, create great chaos and suffering in the herds. In effect, this plan raises real concerns about compliance with WFRHBA's mandate that BLM should manage these animals to maintain "free-roaming behavior" and a "thriving natural ecological balance" in herd areas. There are also growing concerns about the effectiveness and use of the contraceptive, PZP, particularly in view of its effect on herd behavior and dangerous side effects such as out of season foals.
These plans likely stem from BLM's secret discussions that began in July, 2008 about ways to eliminate wild horses through unlimited slaughter, killing, manipulation of sex ratios, sterilization of mares, creation of gelding herds and the like. It is telling that here there is no promise in this plan to stop the slaughter of these wild animals or killing of healthy animals. There is no promise to stop the round ups, the decimation of herds, the brutal treatment of America's wild horses and burros in holding facilities.
During its discussions in the past year BLM considered ways to keep the public away from round ups and the killing of healthy horses and burros and planned to brand protests as "eco-terrorism". This was all to be done in secret. If Congress does not hold a hearing, investigate this plan and this agency, BLM will have succeeded.
WHAT YOU CAN DO
The wild horses and burros can be saved. There has to be a better way to manage these animals other than by hiring criminals to run them down with helicopters and penning some for life and sending others to slaughter. The WFRHBA requires them to be protected in their herd areas where they were living in 1971. And that is what the BLM should do.
Find and contact your U.S. senators here and urge them to hold a hearing or investigate BLM's management of America's wild horses and burros and tell the BLM to stop rounding up and killing or removing our wild horses and burros or selling them for slaughter and return them to the lands where they were living in 1971.
Go here to write your U.S. representative and urge him or her to do the same!
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