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.

24 Responses

  1. […] Thinking About Wild Horses- Animal Blawg By thecloudfoundation A blog post by attorney Bruce Wagman on the Animal Blawg: Thinking About Wild Horses […]

  2. I guess this comes down to the current law and its amendments (especially the 2004 Burns Amendment) vs. the spirit of the 1971 law. As I understand it, the Burns Amendment had no required notification and/or hearings, and was attached to a HUGE omnibus bill at the 11th hour. Pretty slick.

    I’ve read the judge’s ruling on the BLM’s request to proceed with the recent Calico capture. The BLM adopted his permission for the gather, and completely ignored his recommendations on the advisablity of taking these (or any?) horses until issues regarding the legality of long-term holding have been decided. Am I getting this right?

    I may not be a lawyer, but I do respect and defend the rights of animals (especially horses) wherever and whenever I can.

    Many thanks to you and all your colleagues who are “taking it to the courts” while we’re “taking it to the streets”!

  3. This is so thoughtful and I am pleased to have read your thoughts and glad that Wild Horses are on your mind a lot. mar

  4. Can charges be brought against the BLM or it’s contractors (Catoor – Calico contractor) for animal cruelty, neglect, abuse? Theft of public property? Destruction of public property? 98 deaths and rising is cruel & inhumane, we treat maximum security prisoners better than this. Is the BLM and their contractors above the law? If a citizen did this they would be prosecuted. What about the 2007 horror with the Sheldon horses @ palamino valley? The BLM cut them off from water (& food) during severe drought and 175? died. Curiously, no cattle in the area died. What about the horses they sold (or gave) to Jason Meduna by the truckload. These are crimes. It’s genecide.

  5. Does the Rule of Law still exist in America? Did it ever exist for the wild ones whether they be horses or wolves????

  6. Just curious to know if your group had considered the approach of the Western Watersheds Project in winning lawsuits against the BLM?

    In the case of the wild horses-ask the courts to find, BLM has not proved the horses they are removing are “Excess” because they have not utilized scientific methods to establish there is a lack of forage or water, quite the contrary, they told the US Geological Survey ” there was no pressing need to do those studies at this time” as stated in the USGS report of 20002-the 10 year plan ‘ The Strategic Research Plan for WH&B. I find the 71 congressional act to be so broad and so full of loopholes that it would seem almost impossible to pin the tail on the donkey…rather-shift the burden of proof to the BLM. The fact that they are a governmental agency gives them wide powers and discretion-but it also makes them very sloppy and ineffectual…and I would use that fact to nail them.

  7. Dear Bruce,

    If you want to help free the mustang, help preserve America, the once proud land of the free,
    Boycott Beef!
    The ecconomic sanctions of choosing wisely what you eat through the boycotting of beef will spur the cattlemen into demanding the mustangs freedom, and they will be freed. BLM is Beef.
    It won’t take attorneys, fundraisers, judges, congressmen or even a majority of citizens, only the slightest reduction of profit in the agribusiness of beef will bring freedom to our land again.
    Thanks for your efforts,
    Don’t eat beef,


  8. It is hideous what the BLM is allowing these contractors to do to these horses.

    There is absolutely no excuse for this.

    Laws or no laws. Human decency is the law at work here, and it is being flagrantly violated. Using our tax money. And lots of it. This fact alone seems to stand by itself. This is a violation of our God-given humanity at our expense!

    Thank you for writing this thoughtful and hopeful article.

  9. Hi, Sandra. You’re right about the 1971 Act. It was certainly well-intentioned and well-supported at the time, but is no match for the politicians and lobbists that have ripped it apart since it became law. I don’t think the folks involved in the original efforts to save our wild ones ever anticipated there would be so many crocodiles in the water.

    As for the contractors, there are only two major players – Catoor and Cook. Does the BLM ever put the captures out for bid? America, the land of the free and the home of the no-bid contract. Hello, Blackwater and Halliburton!

    The Western Watersheds Project approach shows a lot of promise. We’ve tried appealing to so many powerful people on so many levels. Some are sympathetic, but little has been accomplished. As I’ve said before, it’s all about water, and these are the “water people”.

    I’ve been trying to find the person who received an email from WWP stating that, in their opinion, the horses are not the problem, it’s the COWS. With all this activity, my inbox and folders are a terrible mess. Maybe someone else can make the contact and get it posted here.

  10. Forgot to check the boxes. It’s been a long day.

  11. I went back and looked at archived news stories for the late 1800s on the wild horses…the exact same arguments were being used to try and eradicate the wild horses..and yet the range managed to last another 120 years..despite their dire predictions..and thats when there were around 2 million horses….about every 10 years or so someone tries to do they same its not just the cattlemen..its the corporations ,mining ,developers,as well as corrupt politicians.

  12. @All: Thanks for all the thoughtful replies. This format of communication is new to me and a nice break.
    An overall response is just that as long as humans treat animals as disposable and dispensable items of property or less, conduct such as that occurring on the plains to the wild horses — and in the slaughterhouses, feedlots, and factory farms — is going to be a fact of American life.
    Another general response is that there of course many factors at work here, and water and grazing land for commercial interests (like beef) are given consideration by BLM under the “multiple use” requirement of the Wild Horses Act.

    @Linda/Lisa/Honor/Sandra — many efforts and ideas have been attempted by many good groups and lawyers, and the fight is certainly not over. Keep those ideas coming, we never know when a new one will work. But one big barrier to change is the large amount of deference and discretion given to government agencies. Determinations such as “excess” and the need for removals, often based on outdated information, are still given that deference under prevailing Supreme Court law. This is probably the biggest legal blockade to success in the courts on these issues.

  13. I have long believed that the achille’s heel in the BLM’s WHB program are the Herd Mangement Area’s that have been (or are proposed to be) zero’d out.

    The public is told it is so they don’t die from lack of food and water, but we all know that is a smoke screen, there are multiple reasons these herds are removed.

    The 1971 law gives no provision for the removal of all horses from an area. “Management in the wild” would be providing them with food and water, not taking them away.

    The Federal District Court judge in Colorado ruled the BLM couldn’t remove a specific herd in 2009(?). It would be great if another federal court would rule the same, and make the BLM put back the specific horses that had been removed.

    This would make the BLM inventory all the horses to find the ones from a specific HMA. Then that information could be used in multiple ways by the people fighting to help the wild horses.

    I’m not a lawyer nor involved in the legal profession. Just my two cents.

  14. Watched the buget comittee meeting this morning via on archive
    The first speaker, senator bingaman, brought up the fact that the BLMs purchase of land for holding facilities was not an authorised use of funds from the Land and Conservation fund….Yeah! one small step…and senator Landrue the last speaker of the day on second round…had a discussion with Salazar covering most of our issues..and he said he was not wedded to his plan if someone had a better idea…however his demeanor was pretty stony on the subject

  15. I’m glad Senator Bingaman brought that up, because that was the opinion of Judge Friedman in the IDA lawsuit. That’s why he strongly suggested that the BLM not do the Calico gather until he gave his final ruling. I believe that may come in April.

    Sounds like Bingaman may be on the same page. I know where Landrieu stands. One of my Senators – Evan Bayh – is on this committee and I’ve been writing to him. He has a good humanitarian history, so I’m hopeful.

    Sandra, do you remember anything else pertinent? With my slow connection I have problems trying to watch videos.

  16. Thank you, Bruce, for your insight. I too watched the hearing yesterday–Salazar gave himself away too many times, reminding the Senators that wild horses were not a native species, being introduced by the Spaniards. He probably gave himself away far too much, however, at a town meeting in Colorado a couple of years ago when asked about the wild horses, he blatantly answered, “wild horses do not belong on public land.” A family legacy of corporate ranching is the giveaway. In addition to Landreiu (hitting on it again at the end) and Bingaman, Senator Murkowski also addressed the issue at the beginning of the hearing. It was good to hear that the issue was on several Senators’ plates. Several of us advocates met with one of Senator Udall’s main staff people last week, (Udall was awkwardly silent on this issue in the hearing) and she said to us, that until the law is clarified in a court or is changed in Congress, suing the BLM on each case is the best course of action. That just gets a little expensive, but maybe that’s the best course. What are your thoughts on that Bruce?

  17. Did someone correct Salazar’s statement of non-native species??? This issue is important. Fossil records and DNA prove that they are native species even if re-introduced from other continents. They were in N.America first. This is another lie perpetrated by the BLM/DOI/ and wealthy ranchers.
    Now the mustangs meet criteria to be on endangered species list. The petition is on or Care2 websites.

  18. EVERYONE needs to watch this YouTube video and then email the link to all their contacts:

    This short video shows why we ALL must be outraged. The BLM is spending MILLIONS of our tax dollars to kill and torture our Wild Horses.

    In the worst economy since the Great Depression, President Obama and his Secretary of the Interior Ken Salazar are asking for $75.7 million dollars in fiscal year 2011 primarily for more roundups …

    What a disgusting misappropriation of our tax dollars!

    PLEASE take action.

    1) Vote to stop the roundups

    Call/write/fax/email your Senators and Representatives:

    2) Contact your Senator

    3) Contact your Representatives

    4) Attend a PROTEST RALLY in D.C.
    When: Thursday, March 25th
    Time: 1:00-3:00pm, Washington, DC.
    What: “March for Mustangs”, protest rally

    More info

    Spread the word…show up..make your voice heard….

    6) Share on Facebook

    7) Share on Blogs

    8) Post the link on bulletion boards at the grocery store

    9) Pass out flyers

    10) Contact your local newspaper(s)

    11) contact your local TV station(s)

    12) contact your local radio station(s)

    13) Post comments on blogs everywhere – not just on horse related sites – everyone needs to know about this

    14) Do whatever it takes…


  19. Linda ~ Here is a post from Katie Fitch of WWP on American Herds:

    Also, the WWP is suing the BLM and this was included in their documentation:
    Case 4:08-cv-00516-BLW Document 3 Filed 12/17/2008 Page 56 of 120
    196. Despite these admissions that grazing and other factors have caused serious degradation of the sagebrush-steppe and sage-grouse populations in the Ely Field Office, BLM refused to explore in meaningful detail the ways in which domestic livestock grazing has contributed to these degradation conditions, or ways to rectify the situation. Instead of candidly assessing the impacts that livestock have, BLM has also blamed wild horses as supposedly causing rangeland degradation, even though domestic livestock vastly outnumber wild horses in the Ely Field Office.

  20. […] Thinking About Wild Horses « Animal Blawg By Paris Yves of Parrot Productions Thinking About Wild Horses « Animal Blawg. […]

  21. This is pretty lengthy, but it might be of interest, It is from American Herds, December 2009;

    the new grazing proposal for the Soldier Meadows Allotment, Western Watersheds Project filed an appeal and took BLM to court to challenge that decision.

    As a result, extensive testimony from BLM personnel has been given about the Soldier Meadows Allotment and is now part of the public record, some of which included testimony from Glenna Eckel, BLMs Winnemucca Wild Horse & Burro Specialist on May 13th, 2009.

    Ms. Eckel testified, under oath, in a court of law, about impacts from wild horses on the range in areas of the Calico Complex that she had been monitoring for the last six years. Below are some of the highlights of this testimony. To view the complete transcript, Click Here.

    Page 818
    Line 20, Answer from Eckel; “I’ve been assigned the Warm Springs Canyon Herd Management Area and the Calico Mountains Herd Management Area for the last six years. I have only been assigned to the Black Rock Range West for the last year.”

    Page 796
    Line 18, Answer from Eckel; “Well, I guess, honestly, I’m surprised that the number of horses that are out there, based on my monitoring data that I’ve done the last couple of years, that the monitoring data hasn’t shown a higher utilization than what I’ve read. So I guess what I am thinking is that I’m not sure it would change my conclusion.”

    Line 24. Question; “Increasing the horses five times would not change your conclusion; is that right?”

    Page 797
    Line 1, Answer from Eckel; “Well, I think, again it boils down to that competition. And what I have seen, again based on the monitoring data, is that I would have expected different monitoring data than what I’ve collected, based on those numbers.”

    Page 809
    Line 22, Question; “Okay. I believe, in your testimony, you made a statement that you were surprised at the number of horses that were out there, that the monitoring data hasn’t shown higher utilizations than what you read?”

    Page 810
    Line 1, Answer from Eckel; “Correct”.

    Line 2, Question; “Could you just elaborate a little bit more on what you meant by that?”

    Line 4-16, Answer from Eckel; “Sure. I guess what I mean is, given the March ’08 census and the numbers we counted, I didn’t have that knowledge prior to March ’08. So the monitoring that I did and since the last gather, which was in 2004-2005, I was under the impression that we were at AML, those population estimates that we looked at earlier.”

    “And what surprises me is that now, knowing that we had – I can’t remember what you gave it, a certain percentage over. But there’s significantly more animals out there than what we thought were, so I would have expected the monitoring data to show higher levels of use than what I collected. And I guess I’m learning it’s a big country, animals move”.

    Page 814
    Line 18-21, Question; “What were the implications, in your mind, of the monitoring data that you collected? In other words, once you gathered it, what were your – perhaps “conclusions” is a better word.”

    Line 25, Answer from Eckel; “And at the time, again, like after the gather, I assumed that we were close to those population estimates of being under AML, and so the monitoring data was meeting management objectives that we had identified. And again, I was thinking we had a smaller population than I learned then in 2008.” (emphasis added).

    To summarize, Glenna Eckle stated that, despite wild horse populations being five times over BLMs “established AMLs” in the areas she was monitoring in the Calico Complex, BLMs “monitoring objectives were being met”, that this significantly larger population was NOT evident in their forage consumption, that she had no idea they were so far over AML until they flew over the area and counted the horses, and that based on what she had seen, she was really surprised about what she was finding on the range regarding wild horse impacts.

    To understand the full legal implication of what Glenna is saying here, it is also important to understand what the courts have already told BLM in the past about the legal criteria they must use to determine what is “excess” before they have any authority to remove wild horses and burros from the range.

    “The test as to appropriate wild horse population levels is whether such levels will achieve and maintain a thriving ecological balance on the public lands. Nowhere in the law or regulations is the BLM required to maintain any specific number of animals or to maintain populations in the number of animals existing at any particular time Dahl v. Clark, supra, at 595. A determination that removal is warranted must be based on research and analysis, and on monitoring programs, which include studies of grazing utilization, trends in range conditions, actual use, and climactic factors”. Michael Blake, supra: Animal Protection Institute of America 109 IBLA 112, 120 (1989); see Craig C. Downer, 111 IBLA 339 (1989)

    The Calico Complex Environmental Assessments never mentioned Glenna’s testimony or what she found about “monitoring objectives being met” with five times the wild horses than BLM knew were out there before they counted them.

    Instead, BLM buried the evidence and used old decisions to perpetuate the “Appropriate Management Levels” of wild horses in the area, some of which were set as far back as 1982.

  22. The issue continues to get popular press as well. Big front page article, continued to the inside, in today’s Sunday edition of the San Francisco Chronicle.

  23. Louie, the link to the document does not work. would you mind posting it again?

  24. Tufts University in Massachusetts is holding a two-day symposium on the changing relationships between horses and humans this weekend. Makes me wish I was visiting my home state so I could attend. Tufts has an excellent reputation for thorough, fair-minded research, and I’ll be very interested in reading their report.

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