Tuesday, November 3, 2009

The Problem with ROAM

Animal Law

wild horsesAnimal Law Coalition calls on Congress to amend the pending bill, Restoring Our American Mustangs or ROAM, so that it does just these 2 things: (1) ban the sale, transfer, transport, or possession of wild horses and burros for slaughter and (2) ban the killing of healthy wild horses and burros.
Oh, and a 3rd thing: The ROAM Act does further limit the BLM's authority by requiring, instead of merely authorizing, the agency "to protect and manage wild free-roaming horses and burros as components of the public lands" and "designate and maintain specific ranges on public lands as sanctuaries for their protection and preservation".  So keep that.
Okay, one more good thing: The bill would also restore acreage for wild horses and burros to 1971 levels. The BLM has zeroed out or removed wild horses and burros permanently from nearly 20 million acres originally designated for their use.
And, it is good that ROAM would not allow helicopters or "any other airborne devices" for corraling and removing wild horses and burros. Anyone who thinks it is okay or appropriate to use helicopters to run down and terrify these animals, decimate their herds and leave them traumatized, injured and suffering, should not be involved in managing, handling or caring for  these animals. What's worse is that BLM employs criminals to do this, people convicted of illegally running down wild horses and burros with helicopters, stealing them from public lands and selling them for slaughter.  
ROAM should propose to do nothing else until there has been a full public Congressional hearing or investigation into BLM's management of America's wild horses and burros, including Secretary of the Interior Ken Salazar's most recent proposal. There should be a moratorium in the meantime on any wild horse and burro roundups and removals.
ROAM was originally about stopping the slaughter
Basically, the bill does save wild horses and burros from commercial sale and slaughter as originally intended under the Wild Free Roaming Horses and Burros Act of 1971 ("WFRHBA").
The protections of the WFRHBA were gutted in 2004 for many thousands of horses, leaving them at risk of sale and slaughter. That Act, 16 U.S.C. §1331, et seq., declares, "It is the policy of Congress that wild free-roaming horses and burros shall be protected from capture, branding, harassment, or death; and to accomplish this they are to be considered in the area where presently found, as an integral part of the natural system of the public lands."
In 2004 then Sen. Conrad Burns (R-MT), now a pro-horse slaughter lobbyist with the Washington D.C. firm, Gage, acting at least in part at the request of Sen. Harry Reid (D-NV), buried an amendment to this Act in a 3,300 page appropriations bill. That infamous amendment opened the door to the slaughter of thousands of horses. Basically under the Act there are certain horses and burros defined as excess animals. These are animals the [Bureau of Land Management] "BLM" has removed from an area "to preserve and maintain a thriving natural ecological balance and multiple-use relationship in that area" or for some other legal reason. See 16 USC §1332(f).
wild horsesUnder Burns Amendment, these "excess" horses "shall be sold...if the excess animal is more than 10 years of age; or ... has been offered unsuccessfully for adoption at least 3 times." 16 U.S.C. §1333. Any horse sold under this provision is no longer subject to the protections of the Wild Free-Roaming Horses and Burros Act. 16 U.S.C.§1333. Since this amendment became effective, thousands of horses have been slaughtered for human consumption.
ROAM as introduced in the last 2 Congressional session and the current session reverses the Burns Amendment. Though recent federal court rulings and Congressional action as well as state laws have shut down horse slaughter for human consumption in the U.S., for now, American horses are still shipped outside of the U.S., usually to Mexico and Canada for slaughter for their horse meat consumed primarily as a delicacy in some other countries. 
This bill will at least protect wild horses and burros from this fate and also ban the killing of healthy animals, something BLM has wanted to do as part of a euthanasia policy.
ROAM is numbered S.B. 1579 in the Senate and is pending in Committee. The House version, H.R. 1018, has already passed. 
In its current form the bill would amend the Wild Free Roaming Horses and Burros Act, 16 U.S.C. §1333 et seq. in a number of other ways, but many of these provisions are flawed.
For example, ROAM keeps BLM and takes away the historical ranges and herd areas.
The bill would allow BLM to remain as the managing authority of the wild horses and burros program.  In view of BLM's management of the wild horses and burros, that is not a really a good thing.
In restoring acreage for wild horses and burros to 1971 levels, the bill would require BLM to "[i]dentify new, appropriate rangeland for wild free roaming horses and burros, including use of land acquisitions, exchanges, conservation easements, voluntary grazing buyouts, and agreements with private landowners to allow for the federally supervised protection of wild horses and burros on private lands". BLM would also be required to "[e]stablish sanctuaries or exclusive areas". A Congressional committee would oversee environmental assessments required from BLM in designating these new ranges or establishing sanctuaries or exclusive areas for wild horses and burros.
(Interestingly, the bill provides the wild horses and burros could not be placed anywhere if there would be conflict with energy development. It is not clear what that means. Almost any place could have energy development.)
But regardless of possible new ranges, sanctuaries, preserves and the like, the bill would eliminate the protection the right of the wild horses and burros to remain in herds on lands designated for them in 1971. The idea may be that BLM can now move them to lands other than those designated for them in 1971. But the result is that the wild horses and burros will have lost the right to remain free to live in herds on their original ranges.
One of the major costs of the bill as determined by the Congressional Budget Office is for the purchase of new land. Is this really necessary given the millions of acres of BLM land that remains available, where wild horses and burros could continue to live?
This bill also maintains the limited definition of "public lands" meaning there is no protection for wild horses not on public lands managed by BLM or the Forest Service. This is at odds with the effort to have a consistent policy across all federal lands.
wild horses
Under ROAM BLM may actually have more discretion to round up and remove wild horses and burros. 
ROAM would limit to 6 months the time BLM could hold wild horses and burros in corrals or short term holding facilities.  But the bad news is that under ROAM, BLM will continue to round up and remove the few remaining wild horses and burros. ROAM eliminates the current requirement that BLM must remove wild horses and burros that are declared to be "excess", an overpopulation basically. Under ROAM BLM could remove wild horses or burros if the agency has "exhausted all practicable options for maintaining a thriving natural ecological balance on the range".  ROAM would somewhat improve the definition of "thriving ecological balance" to make clear horses and burros must be given "fair consideration in allocation of resources". But this would still leave BLM with too much, maybe more, discretion. BLM will simply say it gave "fair consideration" to the wild horses and burros and remove them regardless. 
Also, this new definition would entrench the multiple use concept in the management of lands on which there are wild horses and burros.  The original concept of WFRHBA was that the horses and burros would be given priority on their original herd areas.
(A range is defined currently and also under ROAM as land that should be "principally devoted" to wild horses though under that multiple use concept. So a range theoretically limits BLM authority to remove them especially given the ROAM definition of "thriving ecological balance".) 
The bill would define what BLM must do in determining a "thriving ecological balance" - find the best scientific methods for taking inventory and determining AMLs (appropriate management levels) and include the public in this process thru comment periods. Once determined, these methods would be standardized throughout BLM and personnel trained to use them. This at least would limit BLM's discretion and brings the public more into this process of determining inventory and AMLs. But still. This is not a limit in any real sense on BLM's discretion to round up and remove wild horses and burros.
Also, ROAM has a big catchall loophole: "The Secretary may remove from the range wild free-roaming horses and burros determined to be a threat to the health and well being of native plant or wildlife species." No accountability would be required to the public of numbers of wild horses or burros removed, injured or killed on this basis.
(Wild horses and burros could still be removed temporarily otherwise from rangeland in the event of threats to their health and safety such as drought conditions.)
ROAM's euthanasia policy is weak. The bill tries to define "fatally injured" and "terminally ill", but the definitions are very vague and broad. There are some good definitions like "illnesses or injuries causing irremediable suffering and pain" that would be better. Also, no accountability to the public would be required for these horses or burros that are euthanized. A big problem given BLM's history.
ROAM does not limit BLM's discretion in using "fertility controls", despite BLM's recently announced plan to manage the wild horses and burros to extinction.
A big sticking point is that ROAM would require BLM to "[r]esearch, develop, and implement enhanced surgical or immunocontraception sterilization or other safe methods of fertility control." There does not appear to be any limitation on BLM's authority to use measures that could mean the extinction of these animals. After all, Interior Secretary Ken Salazar has proposed a plan of "fertility control" that includes introducing non-reproducing herds, monitoring sex ratios, and sterilizing all mares.
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 will 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. ROAM should set limits on BLM's discretion to use fertility control.
ROAM does not engage the public and promote transparency of BLM action as much as it should.
wild horsesROAM does require public participation in determination of AMLs.
Under ROAM the public would be entitled to 30 days notice of a planned removal except in cases of removal for adoptions or when wild horses and burros are determined to be a threat to the health and well being of native plant or wildlife species or in the case of temporary removal in the event of drought. Apparently the public would only be entitled to know of removals to sanctuaries or preserves or other herd areas or ranges or holding facilities if there is no plan to place them for adoption. It is not clear why the public would not be entitled to know of all removals well in advance.
ROAM would require BLM to inventory the numbers of wild horses and burros annually and make this information available free of charge on its website.
BLM would be required to track the number of wild free-roaming horses and burros injured or killed during gathering or holding in a centralized database system. But the public would not be entitled to access to information about the treatment of wild horses and burros during gathers and in holding facilities or those placed with adopters unless BLM determines it would "help inform the public". If the information is made public, it is to be "easily accessible" on BLM's website. There is no reason BLM should not be required simply to make the information public.
Some final good things about ROAM
ROAM would require the BLM to develop and implement a much more aggressive adoption program that would also theoretically more rigorously screen adopters.
wild horsesThe BLM would be required to report annually to Congress the following: (1) number of acres for wild free-roaming horses and burros, (2) appropriate management levels on public rangelands, (3) description of the methods used to determine the appropriate management levels and whether it was applied consistently across the agency, (4) number of wild free-roaming horses and burros on public lands; (5) description of the methods used to determine the wild free-roaming horse and burro population; (6) any land acquisitions, exchanges, conservation easements, and voluntary grazing buyouts that the Bureau of Land Management has acquired or pursued for wild free-roaming horses and burros; (7) any sanctuaries or exclusive use areas established for wild free-roaming horses and burros; (8) programs including budget established for enhanced surgical or immunocontraception sterilization research and development and the extent to which fertility control is being used to control the population of wild free-roaming horses and burros;(9) ratio of horses the agency has contracepted and put back on the range; and (10) herds to which contraception has been administered and with what results.
These reports would be available to the public.
ROAM strengthens the requirement of consultation with other agencies and experts outside the government including those involved in wild horse and burro protection.  ROAM also expands the advisory board and requires appointment of animal welfare advocates. Public notice would be required for these nominations.
Write or call your U.S. representative and senators and urge them to support a moratorium on all gathers and removals of wild horses and burros pending decisions by Congress on the role of the BLM and the course of the wild horses and burros program.  Urge them to reconsider some of ROAM's provisions:  (1) amend to keep the current WFRHBA provision that wild horses and burros shall have the right to live in herds on lands where they were living in 1971 and return these animals currently held in holding pens to these ranges and herd areas , (2) remove the multiple use concept language from the definition of "thriving ecological balance" and provide similar to the current provisions, that horses can only be removed to a preserve or sanctuary in the event of overpopulation, and (3) strengthen the current mandate that herds can remain self-sustaining and must be genetically viable.

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