An “administrative error” that added 23,000 acres to wild horse territory in the 1980s can’t be reversed according to a court ruling. In late September, the U.S. Court of Appeals for the District of Columbia overturned a lower court decision that would have removed the area from wild horse management.
The Devil’s Garden Wild Horse Territory (WHT), located in California’s Modoc National Forest was created by the U.S. Forest Service (USFS) in 1975 and included 236,000 acres divided in two sections. The areas were separated by 23,000 acres known as the “Middle Section.”
In the 1980s a USFS map was redrawn and later found to include the Middle Section, linking the two areas and causing all of the now 258,000 acres to be included in the forest management plan. In 2013, USFS publicly acknowledged the expanded area was the result of an administrative error and set about redrawing the wild horse territory, without further analysis.
The change caught the attention of the American Wild Horse Preservation Campaign and other plaintiffs who filed suit alleging that the USFS’ revamping of the territorial lines violated a number of federal laws, including the requirement for environmental impact studies and public input.
In writing the court opinion, Judge Patricia A. Millett wrote, “We agree. A 23,000-acre tract of land cannot be swept under the rug as a mere administrative mistake.” She further wrote, “The Forest Service’s management of the Devil’s Garden Wild Horse Territory is subject to a Matryoshka doll of nesting federal statutes.”
Millett also noted that for two decades the USFS “actively managed and recorded wild horses in the Middle Section, as evidenced by official Wild Horse Inventory Reports from that time period.”
USFS argued that it’s making the change in 2013 was not a violation because the Middle Section was never part of the Devil’s Garden Wild Horse Territory, so there was nothing to change. Millet noted, “That argument flatly defies the plain text of the official 1991 Forest Plan, repeated official agency statements and two decades of agency practice. Blinders may work for horses, but they are no good for administrative agencies.”
USFS’s argument that the inclusion of the Middle Section should be ignored because there was no legal authority to add it in the 1980s also fell flat in the court’s opinion, with Millett writing, “That argument never even leaves the starting gate.”
The Modoc National Forest also includes cattle grazing allotments, which prompted California Cattlemen’s Association (CCA) to intervene on behalf of livestock producers. In response to questions from WLJ, Kirk Wilbur, director of government affairs for CCA, wrote, “First, I want to be clear that ‘American Wild Horse Preservation Campaign v. Vilsack (now Perdue)’ was broader than merely the Middle Section—it dealt in part with the whole of the Wild Horse Territory on the Modoc National Forest. CCA intervened in the case to defend the Forest Service’s Territory Management Plan (TMP), which established an Appropriate Management Level (AML) for the whole WHT at a maximum of 402 horses. CCA was eager to ensure that the TMP was upheld because the wild horse population has exploded well beyond the AML; it’s now estimated at 3,000. The wild horse population has not only been devastating to ranchers in the Middle Section and the two adjacent sections of the WHT; it’s been extremely destructive to the environment (and other wildlife species) and to the horses themselves.”
Wilbur went onto explain that a trial court upheld the TMP, and the recent decision out of the Court of Appeals for the District of Columbia deals with a narrower issue: whether exclusion of the Middle Section from the TMP was appropriate. “Importantly, the other provisions of the TMP remain in force, which is hugely important to ranchers. Again, the ultimate goal is to keep the wild horse population down to reasonable levels consistent with the AML, though we also need to get the Forest Service to implement that AML,” he told WLJ.
He went on to say the appeals court decision does not invalidate the AML, which caps the wild horse population at 402. He indicated the problem is the Forest Service not implementing wild horse management and conducting necessary gathers. He said 3,000 horses in the areas is unsustainable and environmentally devastating.
The American Wild Horse Campaign responded in a press release, “The D.C. Circuit sent a strong message to the Forest Service that it must manage these public lands in accordance with federal laws that afford these wild horses protection from death, harassment, or other forms of interference with their wild and free-roaming behaviors,” said William S. Eubanks II, of Meyer Glitzenstein and Eubanks, who along with David Zaft, pro-bono legal counsel, retained by the Animal Legal Defense Fund, represented the wild horse advocacy groups in the lawsuit.
“The federal courts have once again reined in a government agency intent on turning the public lands over to private livestock grazing interests and eliminating federally protected wild horses in the process,” Eubanks concluded.
Wilbur pointed out that wild horse management is much larger than the Middle Section, saying that at least two grazing permittees outside of the Middle Section have been informed by the USFS that they will not be able to turn out any cattle on their 2018 allotments due to range degradation caused by wild horses.
“Ranchers manage their cattle to ensure appropriate environmental conditions; nobody manages wild horses—the condition of the range in that area is absolutely abysmal. And it’s problematic for other wildlife that rely on that ecosystem. It’s obviously problematic for ranchers, who have no forage on which to graze cattle, but it’s problematic for the horses, too. If you travel up to the Modoc, you’ll see emaciated horses. There’s not enough forage for their numbers. And during the drought, of course, horses died from lack of water,” Wilbur said.
The court’s opinion is available online at http://tinyurl.com/y8ku7akg. — Rae Price, WLJ editor
