Eyewitness Report: Defending Wild Horses at the Tenth Circuit Court of Appeals

Wild Horses: A Legal Battle at the Tenth Circuit CourtWild Horses: A Legal Battle at the Tenth Circuit Court

Defending Wyoming's Wild Horses in Court

On September 19, 2016, William Eubanks of Meyer Glitzenstein and Eubanks delivered a compelling defense of Wyoming’s wild horses before the Tenth Circuit Court of Appeals in Denver. Representing the American Wild Horse Conservation (formerly American Wild Horse Preservation), The Cloud Foundation, Return to Freedom, and photographers Carol Walker and Kimerlee Curyl, Eubanks argued two pivotal cases before a three-judge panel. Decisions in both cases are anticipated in the coming weeks.

Case #1: Wyoming Checkerboard (AWHC, et. al. vs. BLM)

This appeal involves a lawsuit filed by AWHC in 2014 against the BLM’s roundup of 1,260 wild horses from the Wyoming Checkerboard, affecting the Adobe Town, Salt Wells Creek, and Great Divide Basin Herd Management Areas (HMAs). The roundup reduced wild horse populations in two HMAs below the “Appropriate” Management Levels (AMLs) set by the governing Resource Management Plans.

The Wyoming Checkerboard spans over 2 million acres of alternating public and private land in southern Wyoming. More than half is public land managed by the BLM, while private parcels are owned by the Rock Springs Grazing Association (RSGA) and leased from Anadarko Petroleum for livestock grazing.

The case questions whether the BLM can use the RSGA’s request to remove wild horses from private lands as justification to also remove them from adjacent public lands.

Section 4 of the Wild Free Roaming Horses and Burros Act mandates the BLM to remove stray wild horses from private lands upon a landowner's request. However, Section 3 outlines a two-step process for removing wild horses from public lands: determining an overpopulation and ensuring removal is necessary to restore the Thriving Natural Ecological Balance. Despite the BLM's non-compliance with Section 3, U.S. District Court Judge Nancy Freudenthal upheld the BLM’s actions.

During oral arguments, Eubanks emphasized the precedent-setting nature of the BLM’s actions, noting the potential impact on 179 BLM wild horse and burro Herd Management Areas, all of which include or border private land. He cited a Ninth Circuit Court of Appeals case, asserting that the BLM “does not have the ability to remove wild horses from public lands to prevent them from straying onto private lands.”

Judge Mary Beth Briscoe questioned the feasibility of the BLM’s argument that removing wild horses from private lands without affecting public lands was impractical. Eubanks countered, “Treating millions of acres of public land as private under a statute intended to protect wild horses on public land is never a proper construction of the statutes.”

Judge Scott Matheson further questioned the BLM’s policy change, asking, “How can BLM ignore Section 3 [of the Wild Horse Act] on over 2 million acres of land, over half of which is public?”

Eric Peterson of the Department of Justice concluded the government’s arguments by emphasizing the protection of private landowner rights. Eubanks rebutted, stating that federally protected animals cannot be removed from public lands unless the agency follows the law for making excess determinations, and that Resource Management Plans establishing population levels for HMAs are binding until revised.

Case 2: State of Wyoming vs. BLM

The State of Wyoming sued the BLM for more wild horse roundups, claiming that AMLs set by the BLM are legally binding and require removal of “excess” horses when populations exceed these levels. The lower court dismissed the lawsuit, prompting an appeal.

In a twist, Department of Justice attorneys argued that the BLM must make a two-step finding to remove wild horses: determining overpopulation and the necessity of removal to restore ecological balance. Exceeding AMLs does not automatically indicate “excess” horses, and the BLM has discretion to manage overpopulation through various methods, including fertility control and reducing livestock grazing.

The judges appeared skeptical of Wyoming’s argument that AMLs are immutable. Judge Briscoe noted ecological changes over 20 years, questioning the lack of BLM discretion.

Wyoming's attorney incorrectly claimed that BLM re-evaluates AMLs during Environmental Assessments for roundups, whereas BLM often states this is “outside the scope” of such assessments.

Judge Briscoe emphasized that relying solely on AMLs is insufficient, as the Act requires BLM to justify removal actions based on current information, including overpopulation. Eubanks reiterated that removal decisions are tied to ecological balance, not AMLs.

The State of Wyoming's rebuttal failed to effectively counter the legal arguments presented by Eubanks and the DOJ.

Decisions on both cases are expected in several weeks.

Media Coverage of the Hearing

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