Rift in Wild Horse World

The policy change by the Sierra Club marks a widening gap among those who are trying to protect wild horse and burros.

On one side are the sellouts and charlatans—those who signed the rancher-friendly ‘Path Forward‘ and those who give tacit approval through their darting programs, which includes most of the advocates.

On the other side are the originalists—those who reject the ranching agenda and believe that areas set aside for wild horses and burros should be managed principally for wild horses and burros, as specified in the original statute.

One thought on “Rift in Wild Horse World

  1. focus on the rule of law…The evolution of the wild horse and burro today has resulted in herds that have been subjected and adapted to the harshest of environments and predators over thousands of years. But can they survive the biggest threat of all…a government with an extinguishment agenda of America’s Protected Icon?
    Kim Thorburn, Commissioner Washington Department of Fish and Wildlife,who stated
    ‘Those gorgeous herds of wild horses are non-native and destroying the West’, effectively sabotages the rule of law since the Magna Charta, Section 106 of the National Historic Preservation Act, 1971 Free Roaming Wild Horse and Burro ACT, the ESA, FLPMA, and numerous case findings/rulings. One out of every 10 acres of US wildlife habitat ( approximately 245 million acres equal to 380,000 square miles) is managed by the BLM National System of Public Lands. How much of that is wild equid Natural Habitat and how many herds can it sustain?
    Land also may be acquired under section 5 of the ESA to prevent “modification of land that is not yet but may in the future become habitat for an endangered or threatened species.” (case law: Sweet Home Chapter) CRS Report: 95-778

    Since the 1976 Kleppe v, New Mexico Supreme Court established the wildlife status for Wild horse and burro herd, should the US Fish and Wildlife Service be accountable for their PROTECTION by operation of law under the Endangered Species Act. https://www.blm.gov/programs/planning-and-nepa/planning-101/special-planning-designations/acec.

    Nos. No. 79-1428, 626 F.2d 619/(9th Cir., 05/22/1980)
    The court affirms a conviction for converting government property and violating the Wild Free-Roaming Horses and Burros Act against a defendant who sold for slaughter horses that had been rounded up from the public lands and lent under the Adopt-a-Horse Program….The wild horse/burro as a ”property issue “ was addressed in 1984 when the government had Hughes sign an agreement in which he acknowledged that the adopted horses remained the property of the United States. He was convicted for conversion of government property under Sec 641, a theft provision which requires a showing that the defendant knowingly converted property of the United States. Conversion of the protected inventory/property after capture takes many forms that are prohibited. See https://www.animallaw.info/case/united-states-v-hughes. More (https://elr.info/litigation/10/20955/united-states-v-hughes#:~:text=United%20States%20v,a-Horse%20Program…. United States v. Hughes

    In a 2008 9th Circuit case involving cultural properties law under the 1966 National Historic Preservation Act, the court specified that the department specifically failed to consider population fragmentation and the disruption of travel routes.
    Many herds are “remnant segments” a comparable term used in the recent 9th Circuit court Yellowstone Grizzly Bear decision. THE ruling in favor of “REMNANT POPULATIONS” requires the FWS to consider “the inadequacy of existing regulatory mechanisms; Section 4(a) analysis of the remnant population to ensure long-term genetic viability of the Yellowstone grizzly and adopt regulatory mechanisms that ensure long-term genetic health
    .See 16 U.S.C. § 1533(a)(1)(D
    https://www.doi.gov/…/files/uploads/signed_so_3356.pdf This historic order specifies that DOI bureaus prioritize “active habitat-management projects and funding that contribute to achieving wildlife population objectives” and to “review and use the best available science or other relevant projects to avoid or minimize potential negative impacts on wildlife.” Federal Aid for Wildlife Restoration via the Pittman-Robertson Act was passed in 1937 to generation revenues for restoration. Funds are apportioned to state wildlife agencies for their conservation efforts, includes non game species. see: https://www.animallaw.info/…/us-funding-state-pittman… ( the term “wildlife-restoration project”….

    Failure to identify the Wild horse and burro as a Cultural Resource has extinguished many distinct population segments of Native North American Herds. It is also the duty of the Advisory Council on Historic Preservation (ACHP) to correct this fatal flaw and facilitate the amendment of Resource Management plans. https://www.achp.gov/blm-npa-executed.
    https://www.cambridge.org/core/journals/environmental-practice/article/perspectives-from-the-field-integrating-cultural-impact-assessments-into-environmental-analysis/D52F3CA95D7D714903A9E97BB594019F. The concerns in this article go beyond the scope of historic properties as defined by Section 106 of the National Historic Preservation Act (NHPA) and includes living cultures and their values as reflected by the environments within which their beliefs systems are based. NHPA is amongst the agencies that adamantly refuse to acknowledge wild equids as a historic and cultural native American property.


    Two federal agencies share responsibility for identifying endangered and threatened species and for promulgating and enforcing regulations to ensure the survival of listed species. The U.S. Fish and Wildlife Service (FWS, within the Department of the Interior) and the National Oceanographic and Atmospheric Administration (NOAA, under the Department of Commerce) are each responsible for listing species, with the agencies’ jurisdictions divided according to the habitat of the individual species. NOAA contains within it the National Marine Fisheries Service (NMFS), which actually implements the ESA for its parent agency.”
    The process of moving from data collection to rulemaking necessarily sheds information with each step, as the biologists must simplify the raw data into conclusions, which the agency must simplify into rules.’ But preserving the information lost along the way is important both as part of the administrative record of the ESA listing decision (subject to judicial review under the Administrative Procedure Act (APA)),’ and as a way of promoting transparency in the administrative process.’ This transparency, in turn, reinforces the political legitimacy of the relevant agencies by increasing public participation and agency accountability.’ The challenge, then, is to maintain openness by documenting even fairly technical agency judgments, but to do so in a way that avoids burdening the two federal agencies that administer the ESA. Meeting this challenge will require the government and members of the public who engage with the ESA to share the burden of sustaining transparency critical to ecosystem function and resilience, so two characteristics inherently required for ecosystem conservation, the first aim of the ESA.” https://www.fws.gov/endangered/esa-library/pdf/guidance-for-4d-rules-under-the-endangered-species-act.pdf. Special Cases of 4(d) Application 10(j) Rules (Experimental Populations) The application of 4(d) to experimental populations results in what we call 10(j) rules. Section 10(j) provides for a special application of section 4(d) to facilitate reintroducing species to contribute to their conservation. Section 10(j) allows us to designate a population as an experimental population prior to its reintroduction. Members of experimental populations are generally treated as threatened species for the purpose of establishing protective regulations under section 4(d) of the Act (see 50 CFR 17.82), but unlike threatened species, special provisions in section 10(j) of the Act and at 50 CFR 17.83 govern when and where section 7 of the Act applies to these populations. Each 10(j) rule contains applicable prohibitions and exemptions for a specific experimental population. There may be multiple 10(j) designations for a species across multiple geographic areas, and the prohibitions and exemptions may differ to address threats that vary geographically, or to address specific stakeholder concerns.
    BLM Statement“The herd areas will always be in existence. WH&B program has provision for developing an Herd Area Management Plan designed to implement management actions or areas designated as Herd Management Areas through the land use plan.
    Management for a herd area is NEPA document which is subject to change should new, prevailing data become available. As such through NEPA.
    The burden to demonstrate that BLM’s inventory of the 1971 WH&B areas of use was in error falls to the challenger. When the plan establishing areas of use was approved, it represented BLM’s decision based on best available data. If the public has quantifiable data which shows there may be an error, they need to provide those data to petition BLM to reconsider the decision.” notes Tom Pogacnik, Acting Deputy CA State Director, Natural Resources, Bureau of Land Management, 2008
    Respectfully submitted
    Kathleen Hayden

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