Wild horses on the Salt Wells Creek Herd Area. In 2023, the Bureau of Land Management made management plan changes that included downgrading Salt Wells from a 1.2 million acre (724,000 acres of that public land) Herd Management Area to a Herd Area, meaning it is no longer managed for wild horses. Photo by Meg Frederick.
As published by Courthouse News Service
Wild horse advocates argued before a panel of the Tenth Circuit on Tuesday morning for another chance to preserve management of over 1,000 wild horses roaming public lands in southwest Wyoming after officials approved a plan to remove the animals due to rampant straying onto private lands.
“ This is a straightforward case about agency overreach,” said Jennifer Best, attorney for the nonprofit group Friends of Animals.
The Bureau of Land Management issued a decision in 2023 that eliminated the protection of wild horses on the checkerboard lands — square mile plots that alternate between private and public ownership — of southwest Wyoming to prevent the horses from straying onto nearby private lands. The decision removes protection from two wild horse herds and reduces the number of horses in a third herd, impacting around 1,200 of the 2,100 horses in the area.
A collection of wild horse advocates sued the agency, arguing the decision violated the Wild Horse Act, the National Environmental Policy Act and exceeded the bureau’s authority. In August, a federal court found in favor of the Bureau of Land Management and intervenors Wyoming and the Rock Springs Grazing Association. On appeal, the court consolidated three cases all challenging the government action into one.
Under the Wild Horse Act, the Bureau of Land Management is directed to manage wild horses in a way that maintains a “thriving natural ecological balance.” The bureau can remove excess horses if it determines there is an overpopulation and action is needed to maintain the balance.
“ Here, BLM has made a final decision to remove animals without making those required findings. So it is clear that BLM has violated the law,” Best said.
The act also allows the bureau to remove horses that have strayed onto private lands, which is a large factor behind the bureau’s decision to remove wild horse management from the region.
U.S. Circuit Judge Harris Hartz noted that the bureau is directed under the Wild Horse Act to keep management to a “minimal feasible level” but still respond to frequent notices from private landowners.
“ Now you have a private landowner who’s unwilling to have these animals on this property. So, to police that, to respond to the demand that there not be any on that property, it’s going to take a lot of management,” the George W. Bush appointee said.
Bruce Wagman, attorney for Return to Freedom, a wild horse sanctuary, argued that the bureau tried to use the minimal feasible management directive to ignore its responsibility for management on public lands.
“ You can’t manage no horses,” Wagman said. “It’s minimal feasible management on public lands, not private lands. You can’t say ‘I’m going to manage by not managing anything.’ And that’s what they’ve done here.”
Further, Wagman argued that the Bureau of Land Management disregarded its responsibilities under the National Environmental Policy Act to study the issue by essentially predetermining the outcome of its decision regarding wild horses in the area.
“ It set up the outcome before it did any work. It said, ‘We’re going to get rid of these horses,’ and then went into the NEPA process,” Wagman said. “ They went through NEPA because they needed to act like they were going through NEPA. But they went through NEPA to cater to the ranchers, to cater to the private interests.”
William Eubanks, attorney for the nonprofit American Wild Horse Campaign, argued that Congress specifically required that wild horses be managed as components of the public land and that management must be consistent with a thriving natural ecological balance.
“ BLM is not allowed to come in, no matter how compelling it is as a policy argument, and say there are other reasons that we want to tinker with those threshold congressional protections,” Eubanks argued. “That’s what it’s done here.”
The Bureau of Land Management disagreed with that interpretation and argued that it has the authority to decide that certain lands should or should not be managed for other uses.
Ezekiel Peterson, Justice Department attorney representing the federal defendants, argued that the bureau has the discretion under the Federal Land Policy and Management Act to decide if lands are unsuitable for wild horse management.
Further, he argued that the wild horse advocates are essentially arguing for the creation of thousands of mini herd management areas where bureau staff would constantly have to go out and coax horses back onto public land.
“ BLM doesn’t have the resources to do it, it doesn’t have the staff to do that, and it’s not required by the statute to have agents of the BLM going out there and literally playing checkers with these horses, moving them around from square to square,” Peterson said.
Danielle Bettencourt, attorney for the Rock Springs Grazing Association, argued that siding with the wild horse advocates would “basically eradicate” the section of the Wild Horse Act that gives landowners the ability to ask for wild horses to be removed from their property.
“ Wild horses on any given day are going to be on public and private lands,” Bettencourt said.
Greg Weisz, an attorney representing Wyoming, which intervened in the case, also spoke in support of the Bureau of Land Management’s decision. While the agency could construct physical obstacles or a fence of some sort to separate public and private lands in the checkerboard area, it would negatively impact big game migration and protected sage grouse movement, he said.
On rebuttal, Eubanks argued that the Federal Land Policy and Management Act doesn’t override protections for wild horses.
“ It may not remove the protections for a protected category of wildlife,” Eubanks said. “That would be completely inconsistent with the statute.”
The Tenth Circuit panel — which also included U.S. Circuit Judges Timothy Tymkovich and Allison Eid, a George W. Bush and a Donald Trump appointee, respectively — did not indicate when it would rule.