AWHC Welcomes Fernando Guerra as Legal Affairs Director

Fernando Guerra(September 20, 2022) American Wild Horse Campaign (AWHC) welcomes Fernando Guerra as our new Legal Affairs Director. Guerra joins the ranks of AWHC’s East Coast team from Charles County, MD. Guerra earned a Bachelor of Science degree from the University of Maryland, College Park in 2008, specializing in environmental science and policy, and biodiversity and conservation biology. He received his law degree in 2014 from the University of Maryland Francis King Carey School of Law. Guerra sat down with AWHC’s Amy Hadden Marsh to talk about his interests and why he got involved with the wild horse and burro management issue. The interview has been edited for clarity and length.

What is animal law?

Animal law is based on very old areas of law but it's emerging as a new concept. I think it's because there are many areas that interact with how we are directed by law to treat animals, how we protect animals, and more generally how we view animals. It touches all kinds of aspects.

For example, there's been more acknowledgment of pets as something that needs to be adjudicated even in domestic cases. Basically, the animals are considered property. That's where the foundation of the law comes from. And I think that as we've developed as a society and law has developed as a body, we've begun to acknowledge that animals have some unique characteristics because of their sentience. They can't just be treated the same way that a car or some other object would be treated. You can see that more prominently in anti-cruelty laws that show that there is a judicial or legal acknowledgment that animals should be treated as something that's beyond just property. So that's one of the major issues that is an all-encompassing concept that needs to be addressed more deeply. Our laws still treat animals as property and have been slow to really incorporate that into a more realistic adjudication of topics that involve animals.

Animal law also covers quite a few things, from what we do here with the American Wild Horse Campaign to things like whether or not there should be some kind of visitation agreement for a domestic pet if someone gets divorced, for example. Those are things that courts are starting to look at.

If you look at the way it's reflected in the economics of society, there's quite a bit of indication that people care about their pets, care about things like wild horses. For example, if you look at the scoping data for a lot of the legislation and a lot of the regulations that are being contemplated by the [Bureau of Land Management], I think there's a very clear indication that we, as a society in the United States, [believe that] animals are not just inanimate property.

I think that defining animal law can be difficult, especially because it is so spread out and most of our laws that apply to animals were not developed with the idea that animal law would become a field at any time. They were just developed within their own field, whether it be domestic, whether it be regulatory in nature, such as what we're looking at with BLM. In many ways it requires quite a bit of scouring to see what laws are out there and how they are going to interact with animals. And, for that reason, education is a major portion of what you can do in terms of advocacy - just letting people know. 

Other than the obvious, how does animal law differ from laws that govern human behavior? 

In most jurisdictions in the United States, an animal doesn't have standing or a right in and of itself. So anytime anybody brings an action on behalf of an animal, it would probably be challenged on standing and in most courts be found inadequate. There have been some recent developments in international law in South America that recently recognized the rights of nature. So, in my mind, that's something that can be incorporated into the development of animal law. But right now, [the laws] are normally human-centric.

Talk about some of the work you've done in the area of animal law.

Some of it has been educational. I think that's a large part of it. I have contributed to American Bar Association articles as well as given lectures that have been, hopefully, informative. 

I've also done some legislative work at the state level. A lot of it is just education and having conversations about what's happening. Obviously, legislators have a lot of things on their plates and a lot of times they're not coming from the perspective of the animals themselves. When you're dealing with an animal, in terms of the animal’s interests, it's an interesting position to be in because you are talking about a legal entity that does not have any inherent legal rights.

Another thing related to my current position [with AWHC] is educating people who may not be aware of the history of these horses, why it's important and what symbolic nature they have.

For me, there is quite a bit of power in the spirit and importance of these animals as it was written in the [1971 Wild Free-Roaming Horses and Burros Act] itself. From a legal perspective, it's an amazing piece of legislation, at least conceptually, in that it really acknowledges the importance and emotional nature that animals occupy in a lot of places for people.

It seems that ever since the Wild Horse Annie Act became law in 1959, powerful officials have been working to dismantle the protection afforded to wild horses and burros. The original 1971 Wild Free-Roaming Horse and Burro Act (WHBA) has been amended multiple times, as you know, beginning with the Federal Land Policy and Management Act in 1976 (FLPMA), which basically moved the Bureau of Land Management into the multiple use/sustainable yield management philosophy. Then came the 1978 Public Rangelands Improvement Act. Then, the 2004 Burns Amendment, which required the BLM to sell excess horses and burros over 10 years old or that had been offered for adoption three times, and opened the door for unlimited sale of so-called unadoptable animals. How do you think these amendments have impacted the original Act? Have they watered down the original purpose of the WHBA?

I think one of the major things to keep in mind, especially with this mixed-use directive, is the [1934] Taylor Grazing Act. I don't think you can examine these issues in isolation. I agree with you that there have been some steps back. You see that as a trend in environmental regulations in general. For example, the Endangered Species Act, and a lot of other acts have been watered down by subsequent legislation. I think with Silent Spring and Rachel Carson and the whole ideology that we needed to save our wildlife, especially our symbolic wildlife, that this is one of the unique things about the wild horses as well.

There is very much a connection to national identity and to the history of the country that's involved in these animals, much like the Bald Eagle, which was sort of the poster child for Rachel Carson in Silent Spring. You're looking at a very similar situation with the wild horses, which is why the language discussing their spirit and their importance to the culture of the country is very important.

But there's been some pushback. I think there will always be pushback from big environmental swings. With the Endangered Species Act, the Migratory Bird Act, all these big Acts that are fixated on protecting natural resources, as people with different interests are able to - no pun intended - get their ducks in a row, you will see challenges and erosion of these regulations depending on administrations and the makeup of the legislature. 

But going back to the Taylor Grazing Act, which is one of the bigger issues that needs to be addressed by the government in general, the origin was to prevent overgrazing. Not only was that the primary purpose, it was a reaction to the Dust Bowl, the ideology being that the grazers were to be curtailed or controlled in some manner and not be the primary holders of the public natural resources.

I think this is one of the broad issues that needs to be reexamined; it's one of the major problems when you look at the number of cattle grazing on public lands now, the impact and how that relates to complaints about wild horse populations and their effects on the land.

You say the Taylor Grazing Act should be reexamined. Talk more about that.

The 1971 WHBA definitely acknowledges that these animals are a natural part of the environment and that they need to be protected as such. This legislation is very clear about how the BLM and managing bodies are supposed to treat these animals [as] part of the natural world. One of my issues is: how do we balance the interest of that versus grazing that is permitted under the Taylor Grazing Act?

The Taylor Grazing Act is basically at the direction and the discretion of the BLM director. But not in the same way that the WHBA directs the agency to protect and manage the horse populations. If those two concepts were to interact, the BLM director would have a very explicit direction to, first, protect the horses as part of the natural environment and then after that, look at his or her discretionary power to permit grazing under the Taylor Grazing Act. We have flipped that upside down throughout the years with different kinds of interests and different kinds of advocacy. When we look at it now, we are protecting grazing interests first and then trying to fit in the natural world on top of that. That's very problematic, especially because these are public lands that are supposed to be for the benefit of everyone, not just for individuals who may be involved in a certain business.

The BLM practice of creating herd management areas (HMAs) began in the late 1970s. HMAs are basically where the BLM thinks it's best for these horses and burros to live. I'm wondering about the legality of what I consider an artificially-created HMA that is not mentioned in the 1971 WHBA.

I understand that this was one of the ways in which BLM was trying to quantify and manage these populations, which is their responsibility. But again, the issue really does come down to the fact that the limitations and planning for the number of horses and their distribution is based as a secondary consideration to grazing interests. I think that's the major issue. I'm not sure if, for example, a herd management area or a herd area would work in a context where we weren't placing wild horses as secondary to grazing. Perhaps those systems would work if they were not based on treating wild horses as if they are an inconvenience. That's not the intent of the law. 

Would you say that current BLM practices with livestock on HMAs is illegal? Is that contrary to the 1971 WHBA?

I think that it's something that needs to be reexamined. I certainly can't sit here and tell you whether it's illegal or not. I would say that it's certainly not in the spirit of the 1971 WHBA as it was conceived. And it certainly isn't in line with what the Taylor Grazing Act was primarily intended to do.

Briefly talk about the other laws that come into play with wild horse and burro management. 

We were talking [earlier] about the National Environmental Policy Act (NEPA) and how interesting it is [by creating] some procedural grounds for bringing actions against BLM and also just keeping [the government] accountable and making sure that decisions at least have some relation to available data.

These are really technical areas, especially because when you look at what the BLM has been charged with in this statutory framework, it is a very unique situation. For example, the Endangered Species Act is basically a prohibition on “taking”, which is a very straightforward way of saying you can't kill or take or hunt these animals because they're protected.

The Administrative Procedure Act (APA) is another relevant law. It’s basically the hook for NEPA reviews and gives jurisdiction to challenges and things like that. So it's almost like a ladder of different legislation that you have to climb in order to bring an action.

Then of course there are all the regulations that adjudicate roundups and onsite management. These are internal [agency] documents issued by BLM. There's a lot of interplay between different kinds of regulations. From a legal perspective, if you're going to challenge based on one of those, you have to figure out what is the statutory framework for actually bringing the action. So it's a bit of a spider web.

The wild horses and burros under BLM also have a very different position legally, which is that they are to be managed by BLM. And this is what creates a lot of these issues. Managing a very large population of wild horses and burros is going to, inherently, create a lot of challenges.

But I also think that there's a lot of unique opportunities to see what works and what doesn't work. I think about this sometimes with other animals that live in nature that may need more intense management in the future, based on habitat destruction, global climate change and things of this manner. What we are learning here in the management of wild horses and burros will have much wider applicability.

As the human population continues to grow, as global climate change continues to be an issue, as habitat degradation and destruction continues to be an issue, I certainly see the possibility that we will need to understand how to manage populations of wild animals. I definitely think this is a unique opportunity to see what actually works and how to best implement those policies, even if it's just wild horses for now.

What part of BLM's wild horse management do you think could transfer to other wild animals?

At the end of the day, I think we have evolved somewhat because even the legislation that we have now for the wild horses and burros is different from the completely deregulated populations of the horses that were hunted, stolen off public land and resold. There are a lot of things to be learned about what the best practices are that take into consideration the welfare and the sentience of animals. Unfortunately, many management programs for wildlife in general are based on hunting only or other forms of lethal removal. So I think this is an interesting opportunity since legislation and appropriation has created a situation where directly killing a horse or wild burro is not permitted.

I think we have a rare opportunity to see what methods - outside of those normally accepted as population control methods -  are effective. Personally, I prefer not to be using hunting or lethal or fatal methods of population control. I live on the East Coast. We have way too many White-tailed deer but no natural predators. Right now, the majority of the way that [this population] will be curtailed is through hunting. While [hunting] may be somewhat effective, I think it's always important to keep your eyes and ears open to other possibilities that may not be so cruel, and possibilities that may not create so much violence and suffering against animals.

That reminds me of Colorado’s wildlife management agency - Colorado Parks and Wildlife - that receives most of its funding from the sale of hunting licenses and fees. The animals are seen as a resource. I think some of the frustration is that the wild horse is not seen as a resource. You can't go out and shoot it. You have to treat it as a wild animal. 

This is why I come back to the spirit and what they represent. I think that public polling is quite clear: People in this country have a very, very positive and emotional connection to wild horses and burros. Again, this touches on why animal law is such a unique area of law. It includes a lot of emotional and non-economic priorities and ideologies. If you look around the world, I think it's a very human thing. I think that most cultures have a reverence [for] symbolic animals. This is a very human condition to feel this way about certain animals. I think that the data objectively demonstrates that and the legislation itself demonstrates that there is very much that kind of feeling. 

It also creates a situation where you find a lot of slightly different perspectives on one issue even between individuals at an organization. I think that as human beings throughout history, we've demonstrated that we are very emotionally and individually opinionated about what we think about.

So what got you interested in the wild horse and burro issue? Is there anything specifically that piqued your interest enough to devote your work to this?

I think that for a lot of people, it's not an issue they may be aware of. Or at least I wasn't. I was actually taking a class on federal environmental regulation and the interesting thing was that it was not talking about animals that are protected under the Endangered Species Act.

[Wild horses and burros] are not considered under the International Union for Conservation of Nature. But their history is fascinating and is completely interwoven in the country and the people who make up the history of this country.

From a legal perspective, I find it infinitely intriguing that this is a very unique situation where there is a legislative mandate for an agency to care for a population of wild animals.

What I'm hearing is that it wasn't like you went to Chincoteague or you came out West and saw wild horses in the wild and you were inspired. It really did inspire you through the legal portal.

Definitely. I remember reading about how there were a lot of issues. I think this was in 2012, or 2013 when I wrote this paper [for law school]. There were already a lot of criticisms about BLM’s handling of this program and how things were going to move forward.

Even at that time, I acknowledged that this was an area of animal welfare in the way that animals are treated, and that there was a direct line of accountability because it was the government doing this. It wasn't, you know, poaching or some other kind of nefarious activity. This was something that was being done through formal regulation and formal government processes. It was really interesting from the perspective that there was an ability to voice an opinion, to advocate directly to the agency itself as opposed to a law enforcement perspective of, okay, somebody is trespassing and poaching. The government is actually ordered to do this. And they are doing it through the proper channels. And whether they're doing what they're supposed to do or not is a different question, but they're not hiding on paper what their overall plans are for how they're going to manage these things. And, it's already been found to be quite problematic by quite a few. So to me, that was just a very interesting thing as I learned more and more about the players, with the intersection of law, the history of the Taylor Grazing Act and all these other things that play into this very complicated question.

What are the biggest issues facing wild horse management now? What are your ideas for some solutions?

I think one of the big things is the BLM has recently been ramping up its roundup and holding of these animals. Any time you're going to take a wild animal and start putting it in enclosures or in confined areas, there are going to be massive concerns about how these animals are being treated and what their quality of life is. I mean, in my heart, the idea of animals suffering unnecessarily is very upsetting. This is something that very much motivates my ideas regarding how roundups are done, how animals are kept after roundups. No matter how much general oversight you might consider, it's impossible to forget about the day-to-day operations. At the end of the day, these animals are suffering and living in real time. Because we are talking about the number of animals being managed, there's probably always going to be some improper management. Trying to hold the BLM accountable is always going to be a priority because, to me, it is intolerable to sit by and idly do nothing while these animals are suffering on a day-to-day basis.

Fernando Guerra, do you have anything you'd like to add that maybe I missed?

I think part of the challenge sometimes in having these conversations, is that this is a very big program with a lot of animals. There are many areas of concern right now and one of the challenges is trying to keep all of these plates spinning at the same time.

Amy Hadden Marsh, writer and editor, comes to AWHC from an award-winning background in journalism. Amy spent 15 years as public affairs show host, reporter, and news director for KDNK Community Radio in Carbondale, CO, winning several Edward R. Murrow and Colorado Broadcasters Association awards along the way. She has won awards for her print work from the Colorado Press Association. She has also been a freelance journalist since 1990, publishing in national magazines.