Thinking About Wild Horses

Bruce Wagman

Lately I have been thinking about wild horses.  I discovered the Wild Free-Roaming Horses and Burros Act, 16 U.S.C. §§ 1331-1340 (Wild Horses Act), when I was collecting materials for the first animal law class at Hastings College of the Law in 1996.  Like several laws written for animals, on its face it looked like it would actually protect the covered animals, and that the legislators were very concerned about the horses’ well-being.  Congress actually said that wild horses were “living symbols of the historic and pioneer spirit of the West; that they contribute to the diversity of life forms within the Nation and enrich the lives of the American people; and that [they] are fast disappearing from the American scene.”  It sounded like a set-up for protection to me.  What a letdown when I eventually discovered that while the law arguably provides some protection, it has also been used to herd these independent beauties with helicopters and worse, then to pen them in corrals where they are unable to run or engage in any semblance of their normal lifestyles, and then to either warehouse them for years (the federal government currently keeps over 30,000 in long-term holding) or, if they are old or infirm, sell them for slaughter.  During the “gathers,” horse are obviously frightened, they may die, and once captured, spontaneous abortions of foals is common.  And if they live, they often slowly die from starvation, lack of activity, and other causes.  

My introduction to the WFHBA came through reading the cases in the area at first and trying to figure out what was going wrong.  I then learned much more through a mentor, colleague, and animal law pioneer, Valerie Stanley, who was on the briefs in the seminal standing decision of Animal Legal Defense Fund v. Glickman, 154 F.3d 426 (D.C. Cir. 1998) (which had nothing to do with horses).  One of Val’s passions has always been horses, and she has been tirelessly involved in a series of challenges to the federal government’s operations with respect to its obligations under the Wild Horses Act.  (She seems to work nonstop for the horses; when I contacted her late Sunday night about this piece, she was “out on a wild horse call” – a common response.)  Over the past few years, I’ve been lucky enough to work with Val representing horse-minded organizations like the Cloud Foundation when she learned the story of a now-famous horse named Cloud.  Organizations and individuals have joined in the fight to help Cloud and his band.    

The wild horse cases are compelling because of (1) the obvious suffering of the animals during capture, confinement, and slaughter; (2) the inherent contradiction of an act written to protect horses that cloaks the responsible government agency with the shield of agency discretion in its decisions to capture them, often based on objectively insufficient data; and (3) the appeal of horses to so many Americans.  They also represent one of the regular frustrations of being an animal lawyer – the laws are against us.  We are trying to change the world, and the world is not necessarily ready for that.  Like all important social justice movements, the fight for animal protection is long-term, and we must be prepared to lose, multiple times, before we succeed in making change.  That is not to say animal lawyers around the country are not having success; it just means we need to keep coming back to the fray regardless of the result.  We need to refine and redefine our efforts, and keep our eyes on the prize – better treatment for the animals.  If we ever flag in our willingness, if we ever feel like it is too much or too painful or too much trouble, we need to remember why (most of us) do it, and to put ourselves in the hooves, paws, feathers and feet of those for whom we fight.  If we are thinking about surrender, we need to think about having a conversation with the animals for whom we are fighting.  Faced with that, I always carry on.

The wild horse issues were present enough in my mind, and the most recent Calico gather so current and painful to learn about, that I worked with Joyce Tischler and Matthew Liebman of the Animal Legal Defense Fund to make a Wild Horses Act problem for the annual National Animal Advocacy Competition’s moot court competition, put on by the Center for Animal Law Studies.  The problem was challenging to draft, but in the end the student competitors demonstrated the importance and vitality of litigation under the Wild Horses Act.  The arguments were varied and very well made.  I sat through the first three rounds of arguments and heard several different approaches to the very same issues – proof that the road before us provides many options.  In many cases (like the hypothetical we created for the competition), there are still areas to be explored under the Wild Horses Act, and room for change.  At the same time, animal lawyers are also proposing new legislation that could make a difference for wild horses.

I guess I think about wild horses all the time.