Wild horse lawsuit dismissal outcome is in the eye of the beholder

The lede on the AP story about the 9th U.S. Circuit Court of Appeals rejecting a lawsuit intended to force the federal agencies in Nevada to actually to do their jobs and reduce the wild horse overpopulation reads:

“Wild horse advocates in Nevada scored a victory Monday in an ongoing legal battle with rural interests they say want to round up federally protected mustangs across the West and sell them for slaughter.”

The lede could just as easily have reported that Nevada ranchers had the value of their grazing rights unconstitutionally taken due to a hair-splitting technicality, a sort of Catch-22. The suit from the Nevada Association of Counties, the Nevada Farm Bureau Federation and others asked the courts to requiring federal agencies to follow the wild horse and burro law, because its failure to do so is starving the very wild horses the law was intended to protect, as well as damaging range land used for grazing and taking private water rights. (9th Circuit wild horse opinion)

Just as a Nevada federal judge had ruled, the 9th Circuit said the plaintiffs failed to cite a “final action” by the land agencies that could be challenged:

The district court did not err in dismissing NACO’s APA (Administrative Procedure Act) claims. Federal courts lack jurisdiction over an APA claim that “does not challenge final agency action.” … Here, NACO has failed to identify a specific final agency action … or discrete action unlawfully withheld … that allegedly harmed it. Instead, NACO seeks judicial oversight and direction of virtually the entire federal wild horse and burro management program … in Nevada. This sort of programmatic challenge is foreclosed under the APA.

That is because there is never a “final agency action.” Everything is fluid, flexible, changeable, appealable. What the Bureau of Land Bureau of Land Management and the Forest Service do is deny and delay.

It is not entirely the land agencies fault. They are aided and abetted by Congress.

The Wild Free-Roaming Horse and Burro Act of 1971, which NACO and others say is being ignored, specially says, “The Secretary (of Interior) shall cause additional excess wild free roaming horses and burros for which an adoption demand by qualified individuals does not exist to be destroyed in the most humane and cost efficient manner possible.”

But the federal budget every year since 2009, has stated, “Appropriations herein made shall not be available for the destruction of healthy, unadopted, wild horses and burros in the care of the Bureau or its contractors or for the sale of wild horses and burros that results in their destruction for processing into commercial products.”

The BLM itself reported in September that the population population of free ranging wild horses and burros was 67,000, even thought the range could sustain a population of no more than 26,700 animals, which means that there insufficient grazing for the horses as well as cattle and sheep.

The AP story quoted two different horse-bugging groups but could not find any ranches to quote.

Nick Lawton, a lawyer for one of the horse lovers was quoted as saying, “We’re pleased that the courts continue to dismiss attempts by these grazing interests to use the judicial system to rewrite federal law that Congress designed to protect wild horses from capture, not to favor the livestock industry.”

The original lawsuit pointed out, “Free-roaming horse and burro herds in Nevada are frequently observed to be in malnourished condition, with the ribs and skeletal features of individual animals woefully on view and other signs of ill-health readily observable.”

Now, who is being humane?

Stallions fighting (Getty Images file photo)

 

 

 

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