A contractor’s helicopter drives wild horses toward the trap site during a roundup in Wyoming’s Checkerboard region. RTF file photo.
Legal commentary by Jenna Greene
It’s hard not to be moved by the beauty of wild horses galloping across a western plain, hooves pounding and manes flying. Little wonder such images are featured in ads selling everything from beer to homeowner’s insurance.
But where some see wild horses as “living symbols of the historic and pioneer spirit of the West,” as Congress put it in a 1971 law, protecting the animals, others decry them as pests — voracious grazers that reproduce rapidly and compete with livestock for forage on unfenced tracts of private land.
A showdown over the fate of wild horses in Wyoming and beyond is looming at the 10th U.S. Circuit Court of Appeals. Mustang advocates are challenging a recent lower court decision they say will allow the federal government to decimate the free-roaming herds, rounding up nearly 5,000 animals and warehousing those that are not adopted in long-term holding facilities.
The Bureau of Land Management, or BLM, “is trying to pull a fast one” in seeking to remove the horses from vast swaths of public land intermixed with private parcels, said Bruce Wagman, of counsel at 100-lawyer Riley Safer Holmes & Cancila.
Working at a reduced “low bono” rate on behalf of clients including wild horse conservation group Return to Freedom, Wagman told me that given the ever-growing mustang population, “We’re past the point where we can just say ‘Leave them alone.’”
Note: Wagman is alluding to RTF’s support of proven, safe and humane fertility control to stabilize herd growth. He also represents Front Range Equine Rescue and photographers Meg Frederick and Angelique Rea
But he argues, that the government hasn’t gone through the proper procedures to justify the reduction in herd headcount, nor has it adequately considered contraception as a population control alternative – moves that he says violate BLM’s obligations under the Administrative Procedure Act.
A BLM spokesperson declined comment on the litigation, as did the U.S. Justice Department.
A spokesperson for Wyoming governor Mark Gordon, whose state is an intervenor in the case, said Gordon “has long expressed concerns” about the impact of “unmanaged” wild horse populations and is pleased with the Aug. 14 decision by U.S. District Judge Kelly Rankin, who was appointed to the bench in Cheyenne by President Joe Biden in March.
Lawyers from Fairfield and Woods representing intervenor the Rock Springs Grazing Association did not respond to requests for comment.
As an animal lover, I can sympathize with teams of wild horses. But it’s also apparent that BLM is stuck trying to fulfill conflicting mandates – “a statutory Scylla and Charybdis” as Rankin put it in his decision (helpfully footnoting, “In more contemporary terms, we call this being ‘between a rock and a hard place.’”).
According to court papers, the roots of the case go back to the 1860s, when Congress in allocating Union Pacific Railroad land grants created what’s known as the Wyoming Checkerboard. Spanning 2 million acres of mostly high desert in southwestern Wyoming, the land is divided into one-mile squares with alternating public and private ownership, much like the board of the classic game.
“An unfortunate mistake,” is how Erik Molvar, executive director of the Western Watersheds Project, which has consolidated its appellate challenge to BLM’s plan with Wagman’s clients, described the allocation to me.
While the public/private land mix may have helped get the transcontinental railroad built, it created major difficulties in managing the wild horses that make the area their home. That’s because the herds move freely across the Checkerboard, indifferent to ownership of the parcels.
In a consent decree 45 years ago, the Rock Springs Grazing Association, which owns or leases much of the Checkerboard’s private land, agreed to allow about 1,500 wild horses spread across four “herd management areas.”
The problem is that the grazers don’t want the horses on their property anymore, citing the degradation of the range resources. In 2010, they officially revoked consent to allow the horses access because they said BLM let the equine population climb well above agreed-upon limits.
Fences are not an option. As grazing association lawyers in court papers point out, fencing federal public lands is prohibited by law, plus doing so would impede the migration of other wildlife.
Under the Wild and Free-Roaming Horses and Burros Act, which was passed by Congress in 1971 after decades of mustangs being slaughtered for dog food and hunted for sport, private landowners can’t remove or destroy the horses themselves. But they can ask BLM to come get any strays, and the agency is required to remove the horses “as soon as practicable.”
Except the horses are on the move constantly. By the time BLM shows up, odds are the herd is long gone.
The past decade has been marked by a push-and-pull of litigation between BLM, the grazing association and wild horse advocates as the mustang population on the Checkerboard has ticked up.
According to the grazing association, a 2022 infrared census found 4,313 horses in the area — three times more than has ever been authorized. Since then, the grazing association estimates the population may have grown to 6,000.
The association sued BLM in 2023. In response, BLM unveiled a new resource management plan last year, which according to an agency press release, will cut the maximum number of horses allowed on Checkerboard land by 60%, from 2,065 to 836.
Horse advocates protest that under the Wild Horses Act, BLM can only reduce herd size after it determines there’s an overpopulation of horses in the area, and that forage, water, cover and space are insufficient to support the existing herd.
They say BLM did not make that determination here, and that evidence of insufficient resources is lacking. Indeed, they calculate that the agency’s plan works out to one wild horse for every 2,297 acres of BLM-managed public land in the area.
The new BLM plan is a fundamental shift in the way the agency manages wild horses, the horse advocates argue in court papers.
If allowed to stand, they say, it would set a dangerous precedent and allow BLM to remove wild horses from public lands whenever the agency finds their management difficult or they fear they’ll stray onto private lands.