Hold Your Horses, Bureau of Land Management! The 10th Circuit is Rearin’ to Protect Equine Rights: A Closer Look at Federal Legislation Affecting Wild Horses
Jacey Smith*
From carrying pioneers to the West, soldiers to war, Denver to the Super Bowl, and coal from the mines, horses have been viewed as an integral part of American society. Despite the weighty compassion that many Americans feel for horses, since the beginning of the nineteenth century, the population of wild horses in the West has decreased by 75%. The Issue, Am. Wild Horse Preservation, http://www.wildhorsepreservation.org/issue (last visited Jan. 13, 2017).
In 1971, Congress acted to help prevent this rapid decline by passing the Wild Free-Roaming Horses and Burros Act (“the Act”), which recognizes that “wild free-roaming horses and burros are living symbols of the historic and pioneer spirit of the West; [and] that they contribute to the diversity of life forms within the Nation and enrich the lives of the American people . . . .” 16 U.S.C. § 1331 (2012). In order to protect the horses, Congress declared that “wild free-roaming horses and burros shall be protected from capture, branding, harassment, or death; and to accomplish this they are to be considered in the area where presently found, as an integral part of the natural system of the public lands.” Id.
Under the umbrella of the Department of the Interior, the Bureau of Land Management (BLM) is charged with the care of horses under the Act. Wild Horse and Burro Quick Facts, U.S. Dep’t of the Interior, Bureau of Land Mgmt., http://www.blm.gov/wo/st/en/prog/whbprogram/history_and_facts/quick_facts.html (last visited Jan. 13, 2017). Section 3 of the Act discusses proper removal of wild horses in order to manage the ecosystems accordingly. See 16 U.S.C. § 1333 (2012). It provides that the BLM take inventory of the horses, establish “appropriate management levels” to preserve a quality ecosystem, and then either remove or sterilize horses in areas that reach the high end of the appropriate management level. Id.
Equine Activists, however, fear that the BLM has been abusing its removal authority. See The Issue, supra. These activists accuse the BLM of removing the horses from areas in which removal is not authorized, and even choosing inhumane options for the animals once captured. Id. Tensions have risen between organizations like the American Wild Horse Preservation and the BLM so much that it sparked recent litigation over a 2014 BLM roundup. David Bailey, Wyoming 2014 Wild Horse Roundup Violated Protection Act—10th Circuit, Reuters (Oct. 14, 2016, 7:24 AM), http://www.reuters.com/article/environment-horses-idUSL1N1CN0BD. In July 2014, the BLM removed approximately 1,263 wild horses from the Checkerboard region of southwestern Wyoming. Id. The Checkerboard region received its name because it is a literal “checkerboard” of Federal and private lands. Ben Neary, Wild Horse Advocates Seek to Block Wyoming Roundup, Chi. Trib. (Oct. 7, 2016, 7:00 PM), http://www.chicagotribune.com/lifestyles/pets/sns-bc-wy–wild-horses-20161007-story.html.
The Petitioners included a variety of animal rights activists, foundations and individuals, including the American Wild Horse Preservation Campaign, The Cloud Foundation, Return to Freedom, Carol Walker, and Kimerlee Curyl (“the activists”). Brief for Appellant at 3, Am. Wild Horse Pres. Campaign v. Jewell, No. 15-8033, 2015 WL 7421931 (10th Cir. Nov. 20, 2015). The activists, filing suit against Neil Kornze, the acting director of the BLM, and Sally Jewell, Secretary of the Department of the Interior, alleged that this particular roundup was a violation of the Act and the Federal Land Policy and Management Act (FLPMA).
The activists’ main argument was that the Federal Acts only authorize the BLM to round up horses on public, not private, land. Id. The 2014 roundup took horses indiscriminately from public and private land in the Checkerboard region of Wyoming, and this, appellants argue, is not within the statute’s intended purview. Id. The allegation is that the BLM did not take the time to check the boundaries of the public and private land in the region, exercising a power not statutorily prescribed. Id. The appellants assert that this is contrary to the statutory language, and the statutory ambiguity should be resolved in the activists’ favor. Id. The activists urge that, by abusing its power, the BLM has removed far in excess of what was necessary, “reduc[ing] these populations far below the express [appropriate management level] requirements of the operative [resource management plans].” Id. at 62.
The BLM argued back stating that the wild horses wander back and forth throughout the Checkerboard on a “regular and near continuous basis.” Brief for Appellee at 16, Am. Wild Horse Pres. Campaign v. Jewell, No. 15-8033, 2016 WL 316220 (10th Cir. Jan. 22, 2016). Because under Section 4 of the Act private landowners are entitled to call the BLM to remove horses from their own private land, only removing the horses from public land in the Checkerboard region would deny the private landowners their statutory rights. Id.
In the District Court, the BLM was successful in its arguments. However, after appeal to the United States Court of Appeals for the Tenth Circuit, the court reversed the judgment in favor of the activists, holding that the BLM violated its statutory authority in the 2014 Checkerboard Roundup. Am. Wild Horse Pres. Campaign v. Jewell, No. 15-8033 2016 WL 6033311, at*1, (10th Cir. Oct. 14, 2016). Now it seems that the BLM will have to step back and reevaluate its strategies, ensuring it is not overstepping its statutory boundaries while attempting to care for the wild horses and burros. This victory may be one small stride for the equine activists, but will be sure to spur on change for the American horses out West.
*Jacey Smith is a second-year law student at the University of Baltimore School of Law, where she is a staff editor for Law Review, as well as a research assistant to Professor Robert Lande and a Law Scholar for Professor Stone’s Criminal Law class. Jacey is a law clerk at the Baltimore County State’s Attorney’s Office.
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