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)




Editorial: Feds hand counties a tiny fraction of public land revenue

It is that time of year again. The Interior Department has just announced the paltry sums it will dole out this year to counties that have federal public lands from which they can collect no property taxes to support public services.

This year the feds are magnanimously returning to the counties a whopping $452 million in payment in lieu of taxes (PILT) out of the $11 billion they receive in revenue off those public lands – about 4 percent. That $11 billion is down from $14 billion in previous years, showing how poorly those lands are profitably managed. The money is generated from commercial activities such as oil and gas leasing, livestock grazing and timber harvesting.

“Rural communities contribute significantly to our nation’s economy, food and energy supply, and help define the character of our diverse and beautiful country,” Interior Secretary Sally Jewell had the audacity to boast in a statement. “These investments (PILT) often serve as a lifeline for local communities as they juggle planning and paying for basic services like public safety, housing, social services and transportation.”

Since created by Congress in 1977 PILT payments have been calculated based on the number of acres of federal land within each county and its population.

This year Nevada is slated to get $25.6 million, up $400,000 from the previous year. Most counties will receive payments approximately the same as this past year, some more, some less.

Once again the PILT formula short changes Nevada compared to our neighboring states. Nevada is to get 45 cents an acre, up 4 cents from a year ago. Meanwhile, California is get $1.06 per acre, up 12 cents. Arizona is to get $1.24 an acre, up 12 cents. New Mexico, $1.69, up 15 cents. Utah, $1.17, up 12 cents.

If the states were allowed to control what are now federal lands, instead of getting 4 percent of the revenue, they could collect it all.

A report from the legislatively created Nevada Public Land Management Task Force noted a year ago that the Bureau of Land Management, a division of Interior, loses 91 cents an acre on land it controls, while the average income for the four states that have public trust land is $28.59 per acre. It also estimated the state could net $114 million by taking over just 4 million acres of BLM land, less than 10 percent.

For two years Rep. Mark Amodei has had pending a bill that calls for transferring federal land to the state in phases. The initial phase would authorize the state to select no less than 7.2 million acres of public land for conveyance to Nevada.

“These investments (PILT) are one of the ways the federal government can fulfill its role of being a good neighbor to local communities,” said Secretary Jewell in her statement.

Sounds more like paltry alms than a fair share to us.

A version of this editorial appears this past week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.


Federal judge dismisses challenge to BLM wild horse management

A federal judge has dismissed a lawsuit brought by the Nevada Association of Counties, the Nevada Farm Bureau Federation, several rural counties and others that sought to force the Bureau of Land Management to follow the law and properly manage the wild horse and burro populations in Nevada.

The suit claimed the BLM is starving the very animals the law was intended to protect, as well as the overpopulation is resulting in damage to range land used for cattle grazing and taking private water rights.

Judge Miranda Du ruled that she basically did not have the authority to micromanage the BLM and the plaintiffs failed to “identify a final agency action that is subject to judicial review.”

Though the suit spelled out a pattern of neglect and lack of scientific data to support the agency’s actions, the judge said the law requires specific and discrete acts to be spelled out.

The judge explained (edited to remove legal notations and add explanations of abbreviations):

The FAC (First Amended Complaint) alleges that Federal Defendants acted arbitrarily and capriciously in making decisions “based on political considerations and their own preferences,” rather than following the Wild Horse Act and its regulations. As alleged, Plaintiffs’ claims challenge Federal Defendants’ creation of animal inventories, their maintenance of a thriving natural balance” on public lands, their determinations of AMLs (Appropriate Management Levels) and excess populations, and their decisions to gather wild horses and burros. … The Court need not decide whether Federal Defendants have discretion in carrying out their duties under the Wild Horse Act. Plaintiffs have failed to identify any unlawfully withheld agency action, much less a mandatory agency action.

Meanwhile, there are nearly 50,000 feral horses and burros on the open range in the West, nearly 50 percent more than the range can handle. About half those are in Nevada. Off the range, there are another 48,000 animals in either short-term corrals or long-term pastures, which the taxpayers are feeding for their average 25-year life span.

The BLM pleads poverty, saying Congress has cut its budget, much of which goes to warehousing horses, while Congress also has forbidden selling any unadoptable horses for slaughter.

The opinion: Wild horse ruling

Wild horses in corrals in Carson City (R-J photo by John Locher)