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Friends of Animals' Response to BLM's Report to Congress: Management Options for a Sustainable Wild Horse and Burro Program

EXECUTIVE SUMMARY

Friends of Animals is providing this Response to the Bureau of Land Management’s (BLM)

Report to Congress1 to suggest better and more ethical alternatives to BLM’s cruel and

unacceptable management options. In its Report, BLM asks Congress for the unlimited

authority to, among other actions, aggressively round up a majority of the wild horses in

the western United States so it can permanently sterilize up to 80% of the current

population of wild horses, euthanize healthy wild horses, and/or sell without limitation

what remains of these magnificent animals.

In order to implement its options, BLM requests that Congress grant BLM the authority to

sell and euthanize healthy, wild horses without limitation; amend the Wild Free-Roaming

Horses and Burros Act (WHBA) in order to make both selling and killing wild horses easier;

and to exempt wild horse management actions from detailed review under the National

Environmental Policy Act (NEPA).2 Additional proposed actions include creating large

populations of nonreproducing horses, eliminating off-range pastures in favor of private

pastures, and providing monetary incentives of up to $1,000 to adopt wild horses.

Notably, BLM makes several misleading assertions in support of its options. For instance,

BLM claims that wild horses have no natural predators. To the contrary, wild horses do

have natural predators, specifically mountain lions and wolves. Recent studies have shown

that maintaining predator populations at sufficient levels within current Horse

Management Areas (HMAs) is an extremely effective check on wild horse populations.

Similarly, BLM claims that wild horses will starve and die if the population exceeds the

appropriate management levels (AMLs). In making this assertion, BLM does not disclose

that it sets arbitrarily low AMLs based on outdated and inaccurate population estimates.3

Additionally, BLM often refuses to adjust these arbitrarily low AMLs to allow more wild

horses, despite evidence that HMAs could support additional horses, and instead often

shrinks HMA boundaries or zeroes out populations by removing them from protected HMA status.

Why has BLM taken this approach? Because, as it stands, BLM appears to be favoring

competing uses to the detriment of wild horses. BLM, pushed by both industry and local

1 Bureau of Land Management, Report to Congress: Management Options for a Sustainable Wild Horse and Burro Program (2018), (hereinafter, “BLM’s Report to Congress” or “Report”). 2 BLM’s Report to Congress at 12-13. 3 See, e.g., Eagle Complex Wild Horse Gather Final Environmental Assessment, DOI-BLM-NV-L030-2018-0004-EA, August, 2018, at 3 (“The Appropriate Management Levels (AMLs) for the Mt. Elinore and Chokecherry HMAs set in the Pinyon MFP were established at the population levels that existed between 1971 and 1982. The AMLs within the Chokecherry and Mt. Elinore HMAs remain as set in the Pinyon MFP Wild Horse Amendment (1983).").

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governments in states like Nevada, Utah, Wyoming, and Idaho, seek to remove wild horses

from federal public lands to make room for commercial purposes, including livestock grazing, oil, gas, and mining development.

There are better options. Friends of Animals urges Congress to consider the following five

alternative management options: (1) limiting livestock use in HMAs; (2) limiting oil and gas

development and mining operations in HMAs; (3) protecting natural predators, such as

mountain lions, so that horse populations can be maintained naturally; (4) adjusting AMLs

to accommodate more horses; and (5) expanding existing HMAs to include surrounding Herd Areas (HAs).

A. Statutory Background: The 1972 Wild Free-Roaming Horses and Burro Act.

In 1971, Congress passed the Wild Free-Roaming Horses and Burro Act (WHBA).4 The

WHBA requires the Bureau of Land Management (BLM) to “protect and manage wild free-

roaming horses and burros as components of the public lands . . . in a manner that is

designed to achieve and maintain a thriving, natural ecological balance on the public

lands.”5 The WHBA also states that, “wild free-roaming horses and burros are living

symbols of the historic and pioneer spirit of the West; that they contribute to the diversity

of life forms within the Nation and enrich the lives of the American people; and that these

horses and burros are fast disappearing from the American scene.”6

Congress passed the WHBA with the intent that the management of the wild horses be

minimal to reduce costs and avoid “zoolike developments.”7 BLM is authorized to manage

wild horses only “in a manner that is designed to achieve and maintain a thriving natural

ecological balance on the public lands.”8 BLM is directed to manage wild horses as self-

sustaining populations of healthy animals in balance with other uses and the productive

capacity of their habitat.9 The Secretary of Interior may authorize removals and

destruction, but only if current data shows there is an overpopulation.10 To determine the

AML, the number of horses within an HMA, BLM must analyze a minimum of three to five

years of data for grazing utilization, range ecological condition and trend, actual use,

climate, population inventory, and animal distribution.11 To amend an AML, the BLM must

conduct an in-depth evaluation that considers, among other factors, environmental

changes, the presence of newly listed Threatened, Endangered, or Sensitive Species, and

population inventory.12 Further, wild horses that have been removed and remain in BLM

4 16 U.S.C. §§ 1331 et seq. 5 16 U.S.C. § 1333(a). 6 16 U.S.C. § 1331. 7 92nd Congress, Senate Report 92-242, June 25, 1971. 8 16 U.S.C. § 1333(a). 9 43 C.F.R. § 4700.0-6(a). 10 16 U.S.C. § 1331(b)(1). 11 Bureau of Land Management, Wild Horses and Burros Management Handbook, H-4700, § 4.2.2.1(hereinafter, “BLM’s Handbook”). 12 BLM’s Handbook at § 4.2.2.2.

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holding facilities do not lose their status as wild horses under the WHBA, or the protections

provided by such status.13

Since 2009, Congress has expressly denied use of funds to destroy wild horses. In the 2018

appropriations legislation, Congress denied BLM’s recent requests for broader

management activities that would result in the destruction of excess wild horses and

unrestricted sales due to public disapproval over the wanton killing and injury of wild

horses.14 Despite Congress’ consistent denial, BLM has once again asked Congress for

greater authority to sell tens of thousands of wild horses to third parties who likely intend to resell the horses to slaughter houses outside the United States.

The issue of providing space to wild horses on federal public lands has only recently

become controversial as the desire to use public lands for commercial activities has grown.

It is clear from the BLM’s recent policy decisions that the BLM prioritizes commercial

activities, such as livestock grazing, oil, gas, and mining, over protecting wild horses.

B. BLM’s Proposed Management Options.

BLM provides four management options in its Report.15 According to BLM, it “is committed

to finding solutions to achieve long-term sustainable populations on the range in a humane

manner.”16 However, the options provided do no such thing. Indeed, they appear to do the

opposite. The options BLM provides would eventually result in the permanent elimination

of the “living symbols of the historic and pioneer spirit of the West” that Congress sought to

protect in 1971 by enacting the WHBA.17

For example, BLM asks Congress to amend the WHBA to authorize: (1) the unrestricted

sale of wild horses within and outside the United States;18 (2) the unlimited euthanasia of

unadopted horses; (3) eliminating WHBA protections for wild horses and burros that BLM

considers “sale-eligible”; (4) managing wild horses as non-reproducing herds; (5) lowering

the sale-eligibility age from older than ten years to older than five years; (6) eliminating

provisions in the WHBA that limit adoptions to only four animals per year; (7) reducing the

time to obtain title of an adopted wild horse from one year to six months; (8) providing for

the transfer of wild horses to nonprofit organizations or other countries for humanitarian

purposes or to promote economic development outside of the United States, which causes

animals to lose their status under the WHBA; (9) redirecting funds from adoptions toward

round ups and removals; and (10) permanent authority to transfer wild horses and burros

13 16 U.S.C. § 1333(d). 14 2018 Consolidated Appropriations Act, Pub. L. No. 115-141, 132 Stat. 348 (2018). 15 BLM’s Report to Congress at 2–3. 16 BLM’s Report to Congress at 1. 17 16 U.S.C. § 1331. 18 See Bureau of Land Management’s 2018 Guidance for the Sale of Excess Wild Horses and Burros, issued May 25, 2018. The Guidance removes procedural safeguards and calls for aggressive steps to increase the volume of horses sold, seemingly encouraging BLM employees to turn a blind eye towards questionable buyers who want to sell wild horses to slaughter.

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that have been removed from public lands to other federal, state, and local government

agencies for use as work animals. BLM also proposes an adoption incentive program that

will pay an adopter $1,000 per horse at the time of adoption.19 BLM further proposes to

phase out off-range pastures in favor of private pastures.20

BLM has also proposed four different options for fertility control of wild horses. Option I

consists of “contraceptives and minimal amounts of permanent sterilization.”21 Option II

consists of the use of Porcine Zona Pellucida (PZP) and a “minimal permanent sterilization

of mares or stallions.”22 Option III consists of sterilizing 3,000 mares and stallions annually

and returning sterilized horses to the range while continuing to dart horses.23 Option IV

consists of sterilizing and returning approximately 18,000 horses per year in each of the

first 5 years and 8,000 in year 6.24 Option IV would result in the permanent sterilization of

80% of the population of wild horses.25 In all options presented, BLM proposes permanent

sterilization utilizing ovariectomies, a procedure that has been proven dangerous with a high frequency of complications and death even under controlled circumstances. 26

C. Negative Impacts of BLM’s Proposed Management Options.

BLM’s proposed amendments do not facilitate a “sustainable” approach or help defray costs for the management of wild horses and burros. BLM’s request for the unrestricted sale, euthanasia, mass round up, and widespread sterilization of herds would not promote a “thriving, natural ecological balance on the public lands.”27 BLM’s proposal to aggressively round up tens of thousands of wild horses for unrestricted sale has a high potential for many healthy horses to be slaughtered or euthanized. BLM asserts that it must round up and remove tens of thousands of horses in order to achieve AMLs, which will prevent the starvation and death of wild horses.28 However, there is no basis to support BLM’s contention that arbitrarily low AMLs support a thriving ecological balance, and that removal, euthanization, sale without limitation, and/or revising the WHBA will, in any way, protect wild horses. Although the BLM blames wild horses for reproducing too fast, it is actually the aggressive round ups that perpetuate the population problem that BLM purports is occurring. A National Academy of Science (NAS) Report stated that BLM’s “management practices are facilitating high horse population growth

19 BLM’s Report to Congress at 12. 20 BLM’s Report to Congress at 10. 21 BLM’s Report to Congress at 13. 22 BLM’s Report to Congress at 2. 23 Id. 24 BLM’s Report to Congress at 3. 25 Id. 26 Why You Don’t Spay When the Animal Eats Hay, http://www.petmd.com/blogs/thedailyvet/aobriendvm/2014/august/why-you-dont-spay-when-animal-eats-hay-31930. 27 16 U.S.C. § 1333(a). 28 BLM’s Report to Congress at 1.

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rates.”29 The NAS Report also states that the population growth rate may be increased “by removals through compensatory population growth from decreased competition for forage.”30 Moreover, BLM’s Report to Congress fails to consider the impacts of other uses in HMAs, such as livestock grazing, oil, gas, and mining development. BLM also proposes to phase out long-term pastures by placing animals in private care placements through local private pastures or local partnerships.31 Each private pasture contractor must take a minimum of 100 horses.32 There are no guidelines on standards for the treatment of wild horses on these pastures and based on BLM’s proposals, wild horses will lose WHBA protection when they are shipped to the private pastures. The only guideline regarding care is that “humane care” must be provided for one year.33 BLM also fails to discuss how this option would cut down costs for the program since BLM would be paying individuals to run these private pastures. In addition, BLM is proposing to give $1,000 to anyone who adopts a wild horse.34 BLM

states that the incentive will increase adoptions and save taxpayer money, but BLM fails to

state the fact that the actual cost of adoption is only $125.35 This program may save BLM

the cost of caring for horses but it also increases the likelihood of horses being adopted for

re-sale to slaughter. Indeed, it provides a generous incentive to adopt a wild horse and turn

around and sell the wild horse to the highest bidder. BLM provides no guidelines for follow

up care of adopted horses or any plan to make sure that horses are not being sold to

slaughter or used for other nefarious purposes. This “incentive” program, in combination

with BLM’s request to allow one individual to adopt more than four animals a year, appears

to be encouraging a repeat of the 2012 scandal in which approximately 1,700 wild horses

were sold to a single individual over three years, and subsequently sent to slaughter. BLM

failed to thoroughly investigate the individual and did not check on where all the horses

had disappeared to. If this “incentive” program is authorized, BLM cannot ensure that wild horses will not be sold to slaughter again.

Under all the proposed options, BLM plans to perform some amount of permanent

sterilization, specifically ovariectomies on female wild horses. However, any type of

ovariectomy can be dangerous and has a high chance of complications, including,

“postoperative pain, anorexia, depression, incisional swelling, incisional infections,

29 National Research Council, Using Science to Improve the BLM Wild Horse and Burro Program: A Way Forward, Washington, D.C.: The National Academies Press, 2013, (hereinafter, “NAS Report”) at 5. 30 NAS Report at 6. 31 BLM’s Report to Congress at 10. 32 Bureau of Land Management, Public Off-Range Pastures Fact Sheet, available at https://www.blm.gov/sites/blm.gov/files/wildhorse_PORP_FAQs_6.18.18.pdf. 33 Id. 34 BLM’s Report to Congress at 12. 35 Nicole Rivard, The true cost of wild horse adoption (May 05, 2018), available at https://friendsofanimals.org/news/the-true-cost-of-wild-horse-adoption/.

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incisional dehiscence, eventration, peritonitis, intraabdominal adhesions, and death.”36

Equine Vets warn that ovariectomies are an unreasonable risk even in controlled circumstances:

Spaying of female horses, called mares, is very rarely done. Let’s look at why this is. . . . Spaying a mare is a more complicated medical procedure than gelding, involving entering the abdominal cavity. Although there is more than one way to spay a mare, each resulting in the removal of the ovaries, the procedure tends to be painful and there can be scary complications, such as bleeding from the ovarian artery, which can be difficult to control.37

The other fertility control measure proposed, and currently used, porcine zona pellucida

(PZP), has also been widely shown to have significant negative side-effects that place stress

on the individual mare and the herd collectively.38 For example, researchers now know

that:

• Mares which change groups more often (such as those treated with

PZP) can exhibit increased stress levels and that this increased stress is maintained for at least two weeks after the group changes occur;39

• Mares that receive PZP over extended periods are more likely to

cycle, become pregnant, and subsequently give birth in the fall40 and

winter (unpublished data) months. This is significant because offspring

born at this time face nutritional and thermoregulatory challenges not

experienced by their counterparts born during the normal foaling season

(during the spring and summer), potentially making developmental

benchmarks difficult to achieve;

• After contraception management, PZP recipients both attract and

initiate more instances of reproductive behavior41 and are more often

36 Dawn A Loesch, DVM, DACVS, Dwayne H. Rodgerson, DVM, MS, DACVS, Surgical Approaches to Ovariectomy in Mares, COMPENDIUM, Vol 25, No. 11, November 2003, at 869. 37 Why You Don’t Spay When the Animal Eats Hay, http://www.petmd.com/blogs/thedailyvet/aobriendvm/2014/august/why-you-dont-spay-when-animal-eats-hay-31930. 38 Craig C. Downer, The Horse and Burro as Positively Contributing Returned Natives in North America. American Journal of Life Sciences. Vol. 2, No. 1, 2014, pp. 5-23. 39 Nuñez, C.M., J.S. Adelman, H.A. Carr, C.M. Alvarez, and D.I. Rubenstein. 2017. Lingering effects of contraception management on feral mare (Equus caballus) fertility and social behavior. Conservation Physiology 5(1): cox018; doi:10.1093/conphys/cox018; Nuñez, C.M.V, J.S. Adelman, J. Smith, L.R. Gesquiere, and D.I. Rubenstein. 2014. Linking social environment and stress physiology in feral mares (Equus caballus): group transfers elevate fecal cortisol levels. General and Comparative Endocrinology. 196:26-33. 40 Nuñez 2014, see supra n. 39. 41 Nuñez, C.M.V., J.S. Adelman, C. Mason, and D.I. Rubenstein. 2009. Immunocontraception decreases group fidelity in a feral horse population during the non-breeding season. Applied Animal Behavior Science 117:74-83.

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the harem male’s nearest neighbor during the fall and winter42,

indicating that group spreads are reduced. These changes can be

important as horses typically spread out in the fall and winter months to

find scarce forage. Such changes represent an increase in energy

expenditure and a potential decrease in nutrient intake during a time of

year when sufficient energy reserves are at a premium;

• Mares treated for more consecutive years are more likely to exhibit

the behavioral and physiological changes outlined above43 and decreases

in ovarian function;

• Where, as is often the case, the plan is to vaccinate non-

reproductive females (those between 1 and 3 years old), it will preclude

young mares from forming the important social attachments between

males and females typically made when foals are conceived. Such changes could further affect herd dynamics;44 and

• PZP may cause direct effects on ovaries,45 and in many cases, PZP

causes permanent infertility.46

Most importantly, studies have shown that PZP may not be reversible.47 Clearly, BLM’s

proposed fertility control measures go well beyond “minimal” management.

D. Issues and Alternative Options.

1. Limiting Livestock Use in HMAs.

42 Nuñez, Cassandra MV, James S. Adelman, and Daniel I. Rubenstein. "Immunocontraception in wild horses (Equus caballus) extends reproductive cycling beyond the normal breeding season." PLoS One 5, no. 10 (2010): e13635. 43 See supra n. 39, 42 see also Ransom, J.I., B.S. Cade, and N.T. Hobbs. 2010. Influences of immunocontraception on time budgets, social behavior, and body condition in feral horses. Applied Animal Behaviour Science 124:51-60. 44 Nuñez 2014, see supra n. 39. 45 Gray, M.E. and E.Z. Cameron. 2010. Does contraceptive treatment in wildlife result in side effects? A review of quantitative and anecdotal evidence. Reproduction 139:45-55; Joonè, C.J., H. French, D. Knobel, H.J. Bertschinger, and M.L. Schulman. 2017. Ovarian suppression following PZP vaccination in pony mares and donkey jennies. Proceedings of the 8th International Wildlife Fertility Control Conference, Washington, D.C.; Joonè, C.J., M.L. Schulman, G.T. Fosgate, A.N. Claes, S.K. Gupta, A.E. Botha, A-M Human, and H.J. Bertschinger. 2017. Serum anti-Müllerian hormone dynamics in mares following immunocontraception with anti-zona pellucida or -GnRH vaccines, Theriogenology (2017), doi: 10.1016/ 46 Nuñez 2010, see supra n. 42; Nuñez 2017, see supra n. 39; Knight, C.M. 2014. The effects of porcine zona pellucida immunocontraception on health and behaviour of feral horses (Equus caballus). Graduate thesis, Princeton University. 47 See supra n. 42.

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One issue wild horses face is the disproportionate number of livestock allowed to graze on

public lands. The solution that Friends of Animals proposes is to allow fewer livestock to graze in HMAs.

BLM prioritizes livestock grazing on public lands over the protection of wild horses on

public lands. In 2004, 79% of BLM land in the West was used for livestock grazing.48 In

2014, 97% of forage was allocated to livestock while only 3% was allocated to wild horses and burros.49

BLM annually administers approximately 18,000 permits and leases, which equals

approximately 12 million Animal Unit Months (AUMs).50 BLM manages 245 million acres of

public lands, and 155 million acres are allocated to livestock grazing. Wild horses are only

allocated 26.9 million acres, which they share with livestock.

Contrary to BLM’s statements, reducing AUM’s for livestock is not only consistent with BLM guidelines, it is required. The WHBA states that the range should be principally devoted to wild horses, and the Secretary is authorized to “designate and maintain specific ranges on public lands as sanctuaries for their protection and preservation.”51 Furthermore, the Federal Land Policy and Management Act of 1976 (FLPMA)52 principles on multiple land use do not preclude reducing forage to livestock.53 BLM is authorized to close public lands to grazing by all or a particular livestock “if necessary to provide habitat for wild horses or burros, to implement herd management actions, or to protect wild horses or burros from disease, harassment or injury.”54 It has been shown that livestock grazing takes a severe toll on the land:

Livestock grazing threatens native species, reduces water quality, spreads noxious weeds, alters natural fire regimes and accelerates soil erosion, destroying streamside and upland ecosystems. About 80 percent of all streams and riparian ecosystems in the arid West are severely degraded by livestock grazing. In its Global 2000 report, the Council on Environmental Quality noted that "improvident grazing . . . has been the most potent desertification force, in terms of total acreage, within the United States.”55

48 Christine Glaser, Costs and Consequences: The Real Price of Livestock Grazing on America’s Public Lands, Center for Biological Diversity at 9 (2015), available at https://www.biologicaldiversity.org/programs/public_lands/grazing/pdfs/CostsAndConsequences_01-2015.pdf. 49 Vickery Eckhoff, Livestock Grazing Stats: Examining Key Data in the Debate Over Wild Horses on Western Public Lands, THE DAILY PITCHFORK at 15 (2015). 50 AUMs are the amount of forage allocated to livestock and/or horses. 51 16 U.S.C. §§ 1331 et seq. 52 43 U.S.C. § 1701. 53 43 U.S.C. § 1702(c). 54 43 C.F.R. § 4710.5. 55 Western Watersheds Project, The Legacy of Livestock Grazing on Public Lands, available at https://www.westernwatersheds.org/reports/legacy/legacy.htm.

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BLM should re-evaluate prioritizing livestock over the protection of wild horses. Indeed,

livestock grazing is not as lucrative as BLM makes it out to be. BLM is actually operating at

a deficit between the direct appropriations funding, funds specifically set aside for the

program, and the grazing fees collected.56 Currently, public land grazing fees are $1.87 per

month for one cow and calf, well below market value.57 An analysis from the Center for

Biological Diversity states that the difference between direct appropriations funding and

grazing fee receipts exceeded $120 million every year for the past 12 years, up to 2014.58

This difference, of more than $120 million, is a measure of the cost of BLM’s grazing

program to taxpayers.59 When indirect costs are calculated, the cost to taxpayers is more

than $500 million.60 Essentially 96% of public funds are used to bankroll livestock production.61

2. Limiting Oil, Gas, and Mining Operations in HMAs.

A second issue that wild horses face is the leasing of public lands to oil, gas, and mining

operations. The solution that Friends of Animals proposes is to limit (or eliminate) oil, gas,

and mining operations within HMAs.

The oil and gas development occurring on public lands appears to be one of the primary

reasons for some of the most recent wild horse removal actions. For FY 2017 alone, BLM

contracted out a total number of 38,556 leases while the total number of acres of public land leased to oil and gas developers was about 26 million acres.62

It appears that BLM is seeking to promote oil and gas interests over the lives of the wild

horses. Indeed, the evidence demonstrates that some of the biggest proposed roundups in

2018 are taking place in areas where a significant number of leases have been sold in the

last few years.

56 Christine Glaser, Costs and Consequences: The Real Price of Livestock Grazing on America’s Public Lands, Center for Biological Diversity at 17 (2015), available at https://www.biologicaldiversity.org/programs/public_lands/grazing/pdfs/CostsAndConsequences_01-2015.pdf. 57 Western Watersheds Project, Public Lands Ranching, available at https://www.westernwatersheds.org/public-lands-ranching/. 58 Christine Glaser, Costs and Consequences: The Real Price of Livestock Grazing on America’s Public Lands, Center for Biological Diversity at 17 (2015), available at https://www.biologicaldiversity.org/programs/public_lands/grazing/pdfs/CostsAndConsequences_01-2015.pdf. 59 Id. 60 Western Watersheds Project, Public Lands Ranching, available at https://www.westernwatersheds.org/public-lands-ranching/. 61 Id. 62 BLM, Oil and Gast Statistics, available at https://www.blm.gov/programs/energy-and-minerals/oil-and-gas/oil-and-gas-statistics

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Additionally, the current administration is pushing BLM to boost sales of oil and gas leases

on public lands, listing oil and gas as the focus of a “priority work list.”63 In response, BLM

changed its policy on oil and gas leases to streamline and encourage more drilling on public

lands by reducing the public comment period and the time it takes for a parcel of land to

move from nominations to sale.64 BLM’s new policy also eliminates site visits, and allows

for the BLM to determine whether public comment is necessary if existing NEPA

documents are deemed adequate.65 By cutting out public involvement, shortening the

timeline, and potentially forgoing environmental analyses, BLM is catering to the oil, gas

and mining industries at the expense of wildlife and the public. BLM’s most recent policy

change coupled with the current administration’s push to prioritize oil, gas, and mining clearly demonstrate that wild horses are at the bottom of BLM’s list of priorities.

BLM also leases over 245 million surface acres of public land for mineral development in

twelve western states, all of which contain public land designated as HMAs.66 This is more

than any other Federal agency in the United States.67 BLM’s mineral leases are also covered

by the multiple use principles of FLPMA.68

Oil and gas development, along with mineral development, poses serious risks to the

environment, humans, and animals.69 Leakage of toxic chemicals into the water or air near

areas of drilling can cause symptoms of asthma or dizziness in humans and more severe

symptoms in animals, such as miscarriages.70

Indeed, under FLPMA, the Secretary is required to manage public lands:

[In] a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values; that, where appropriate, will preserve and protect

63 Jim Lyons, The Rush to Develop Oil and Gas We Don’t Need, NY Times (Aug. 28, 2017), available at https://www.nytimes.com/2017/08/28/opinion/trump-oil-public-lands.html; see also Julia Travers, More Leaked Documents Reveal Trump’s BLM Prepping to Ramp up Drilling, Mining, Grazing on Public Lands, EnviroNews DC News Bureau (Apr. 13, 2017), available at http://www.environews.tv/041317-leaks-reveal-trumps-blm-prepping-ramp-drilling-mining-grazing-public-lands/. 64 Bureau of Land Management, Updating Oil and Gas Leasing Reform-Land Use Planning and Lease Parcel Reviews, IM 2018-034 (2018), available at https://www.blm.gov/policy/im-2018-034; see also Cooper McKim, BLM Pushes More Oil and Gas Production, Narrows Public Input and Review, Wyoming Public Media (Apr. 20, 2018). 65 Bureau of Land Management, Updating Oil and Gas Leasing Reform-Land Use Planning and Lease Parcel Reviews, IM 2018-034 (2018), available at https://www.blm.gov/policy/im-2018-034. 66 Bureau of Land Management, Land and Mineral System Reports, available at https://reports.blm.gov/reports.cfm?application=LR2000. 67 Id. 68 43 U.S.C. § 1701(a)(12). 69 Michelle Bamberger & Robert E. Oswald, Impacts of Gas Drilling on Human and Animal Health, NEW SOLUTIONS Vol. 22(1) 51-77 (2012); see also Amy Mall, Lots of news (bad) about the health risks from oil and gas production (2012), available at https://www.nrdc.org/experts/amy-mall/lots-news-bad-about-health-risks-oil-and-gas-production. 70 Id.

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certain public lands in their natural condition; that will provide food and habitat for fish and wildlife and domestic animals; and that will provide for outdoor recreation and human occupancy and use.71

To comply with FLPMA, BLM must manage the range to provide food and habitat for wild

horses.72 Furthermore, to respect the intent of Congress and comply with the WHBA,73 BLM

should lease out less parcels to oil and gas development and limit mining operations within

HMAs. BLM is obligated to consider the long-term sustainability of public lands, and wild

horse habitats, to achieve a thriving natural ecological balance.74 To achieve a thriving

balance, BLM should conduct in-depth environmental analyses before leasing out parcels to

oil and gas developers, and BLM should carefully consider whether the benefits outweigh the negatives.

3. Protecting Natural Predators in and around HMAs.

A third issue that BLM refuses to acknowledge is the lack of natural predators allowed to

survive on public lands and within HMAs. Natural predation would keep wild horse

populations in check and eliminate the need to conduct expensive roundups or dangerous

fertility control treatments. The solution that Friends of Animals proposes is to protect

predators, such as mountain lions and wolves, in areas where wild horses roam so that

wild horse populations are managed naturally and inexpensively.

BLM claims, incorrectly, that wild horse “herds have no natural predators.”75 To the

contrary, wild horses have several natural predators, including mountain lions and wolves.

However, as stated in the NAS Report, the potential for predators to affect wild horse

populations “is limited by the absence of abundance of such predators as mountain lions

and wolves on HMAs.”76 By working with other agencies to protect predators, specifically

mountain lions, in areas where wild horses are still permitted to roam, BLM would have an

effective, low-cost option to manage wild horse populations.

Most predation on wild horses in North America has been attributed to mountain lions.77

Several studies concluded that mountain lion predation can significantly influence the

number of wild horses in a given area.78 Most HMAs are in areas that currently have few

71 43 U.S.C. § 1701(a)(8). 72 Id. 73 16 U.S.C. §§ 1331 et seq. 74 16 U.S.C. § 1333(a). 75 BLM’s Report to Congress at 1. 76 NAS Report, supra n. 29, at 6, 74. 77 NAS report at 72-73. 78 Turner, John W., Jr., Wolfe, Michael L., and Kirkpatrick, Jay F. (1992) Seasonal mountain lion predation on a feral horse population, Can. J. Zool. 70: 929 -934; Greger, Paul D. and Romney, Evan M. (1999) High foal mortality limits growth of a desert feral horse population in Nevada, Great Basin Naturalist: Vol. 59 : No. 4 , Article 10; Turner, John W. and Morrison, Michael L. (2001) Influence of predation by mountain lions on numbers and survivorship of a feral horse population, The Southwestern Naturalist 46(2): 183-90; Gray, Meeghan, Spencer, Jack Jr., and Thain, David (2008) Live trapping and monitoring mountain lion movements within a feral horse population in Storey County, Nevada, 2005 – 2007, Proc. 23rd Vertebr. Pest Cont (R. M.

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mountain lions despite the fact that most HMAs are in viable mountain lion habitat. Indeed,

the lack of mountain lions in wild horse territory is not due to unsuitable habitat –

mountain lions occur naturally in these areas. Instead, it is due to the substantial number of

mountains lions that are killed by both hunters and government (state and federal)

agencies. Record numbers of mountain lions have been killed in the United States in the

past decade.79 For instance, between 2005 and 2014, hunters killed approximately 29,000

mountain lions in the United States.80 Even more alarmingly, Wildlife Services, a program

that is part of the United States Department of Agriculture’s (USDA) Animal and Plant

Health Inspection Service (APHIS), intentionally kills hundreds of mountain lions every

year at the behest of private interests, such as the livestock industry.81 In 2017 alone,

Wildlife Services intentionally killed 316 mountain lions across 13 states.82 States such as

Colorado, Utah, Wyoming, Oregon, Idaho, Nevada, and New Mexico are all areas where the

government is spending tons of money to both kill mountain lions and round up wild

horses.83

In the United States, breeding populations of mountain lions exist in 15 western states—

including all western states where wild horses are still allowed to roam. Rugged terrain,

which provides stalking cover and den sites, as well as areas with low road densities and

low human disturbance, are preferred habitat characteristics for mountain lions.84 Most

HMAs contain these habitat characteristics.

Notably, BLM has never conducted a formal survey of which HMAs might have the right

criteria for mountain lion predation. Indeed, BLM has never even asked what that criteria

may be. Instead, BLM waives away any consideration of this option in its wild horse

management decisions. In management decisions that actually acknowledge that wild

horses do indeed have predators, BLM’s excuse for refusing to consider this alternative is most often as follows:

Wild horses in the [HMA] are not substantially regulated by predators. In addition, wild horses are a long-lived species with documented foal survival rates exceeding 95% and they are not a self-regulating species.

Tirnrn and M. B. Madon, Eds.) Published at Univ. of Calif., Davis. 2008. Pp. 140-144; Turner, John W., Jr., (2015) Environmental influences on movements and distribution of a wild horse (Equus caballus) population in western Nevada, USA: a 25-year study, Journal of Natural History, Vol. 49, Nos. 39–40, 2437–2464. 79 The Humane Society of the United States (2017) State of the Mountain Lion: A Call to End Trophy Hunting of America’s Lion (hereinafter, “HSUS Report”), available at http://blog.humanesociety.org/wp-content/uploads/2017/04/Final_Mountain-Lions_-DIGITAL_final.pdf (last accessed Aug. 28, 2018). 80 HSUS Report at 30. 81 Notably, according to the National Agricultural Statistics Service, mountain lions—and all other native carnivores and domestic dogs put together—killed less than one percent of the U.S. cattle inventory and about four percent of the sheep inventory nationwide. HSUS Report at 38. 82 See USDA, Animal and Plant Health Inspection Service, United States Department of Agriculture, Program Data Report G – 2017, available at https://www.aphis.usda.gov/wildlife_damage/pdr/PDR-G_Report.php?fy=2017&fld=&fld_val= (last accessed Aug. 29, 2018). 83 HSUS Report at 82-122. 84 HSUS Report at 70.

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This alternative would result in a steady increase in numbers which would continually exceed the carrying capacity of the range until severe and unusual conditions that occur periodically-- such as blizzards or extreme drought-- cause catastrophic mortality of wild horses.85

BLM never supports this assertion with any scientific studies and refuses to fully consider this alternative in its environmental analyses.

By working with other agencies to protect these predators, and by allowing a healthy

predator population to keep wild horses on the move, BLM could naturally limit wild horse population growth.

As David Philipps suggests in his excellent book, Wild Horse Country, BLM can start by

building on the knowledge that lions hunt foals near water sources in summer months and

likely need to switch to other prey in the winter.86 BLM can then make a list of areas that fit

the criteria and come up with plans to get herds to move seasonally into high ground where

lions hunt. This option would truly restore the thriving ecological balance that BLM strives

to achieve.

4. Adjusting AMLs to Allow Additional Wild Horses in HMAs.

A fourth issue wild horses face are the artificially low AMLs that BLM has set. The solution Friends of Animals proposes is to adjust AMLs to accommodate additional horses.

Habitat and population management are established through Herd Management Area Plans (HMAPs). AMLs are a population range that BLM sets for wild horses. The national AML for wild horses and burros is a total of 26,715 animals on 26.9 million acres of public lands across ten western states.87 This equates to approximately one horse per 1,006 acres of public land. Imagine if BLM told a cattle rancher that it would only allow one cow per 1,000 acres. This would not stand. Indeed, a visit to any HMA demonstrates that thousands of cows can be seen across the HMA, but to find a wild horse practically requires a miracle. There is simply no reason why livestock and other conflicting uses are given priority over wild horses. BLM should be required to revise its management approach and adjust AMLs to, at the very least, equal the number of livestock allowed within HMAs.

According to BLM’s Handbook, AMLs should be set with a minimum of three to five years of data of an in-depth evaluation of intensive monitoring data or land health assessment.88 Furthermore, any adjustments to AMLs require a NEPA analysis for each site89 and BLM is

85 See, e.g., North Hills Wild Horse Herd Management Area Plan and Gather Plan, DOI-BLM-UT-C010-2018-0054-EA, at 54-55. 86 See Philipps, David. Wild Horse Country: The History, Myth, and Future of the Mustang, New York, W. W. Norton & Company, Inc., 2017. See also, David Philipps, Let Mountain Lions Eat Horses, N.Y. Times, May 12, 2018, available at https://www.nytimes.com/2018/05/12/sunday-review/let-mountain-lions-eat-horses.html (last accessed Aug. 29, 2018). 87 BLM’s Report to Congress at 1. 88 BLM’s Handbook at § 4.2.2.1. 89 BLM’s Handbook at § 2.5.1.

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required to formally re-evaluate land use plans at least every five years.90 However, the NAS Report found that “how AMLs are established, monitored, and adjusted is not transparent to stakeholders, supported by scientific information, or amenable to adaptation with new information and environmental and social change.”91

Many AMLs are outdated and were calculated over 30 years ago.92 For example, in a recent environmental assessment (EA) that is proposing to remove 2,000 horses, the AML within the complex was calculated over 35 years ago.93 The NAS Report found that BLM failed to use scientifically sound methods to estimate the population sizes, resulting in unsubstantiated population estimates in HMAs.94 The NAS Report also states that when population estimates were much higher than reported counts, there was no explanation for the differences.95 Furthermore, “the frequency with which surveys were conducted to count horses in each HMA in the sample was highly variable.”96 During years in which population counts were not done, the population was estimated by multiplying the previous year’s population estimate by some assumed growth.97

Maintaining healthy populations of wild horses requires genetically diverse populations. BLM’s handbook states that a total population size of about 150 to 200 horses is recommended to maintain an acceptable level of genetic diversity.98 With the way that BLM is managing wild horses, “unless there is gene flow between HMAs, inbreeding in individual HMAs is inevitable and will result in lower genetic diversity and individual fitness.”99

In order to comply with the WHBA, rather than removing thousands of horses in order to maintain arbitrarily low AMLs, BLM should recalculate AMLs in order to allow additional wild horses.100 BLM rarely does so.

5. Expanding Existing HMAs to Include Surrounding HAs.

A fifth issue wild horses face is the limited amount of public land allocated for wild horses.

The solution Friends of Animals proposes is to expand existing HMAs to include the surrounding HAs.

Friends of Animals, its members, and the public have suggested that BLM return wild

horses to HAs or expand existing HMAs to allow more public land for wild horses to thrive.

90 Bureau of Land Management, Land Use Planning Handbook, H-1601, §1. 91 NAS Report at 11. 92 See, e.g., Eagle Complex Wild Horse Gather Final Environmental Assessment, DOI-BLM-NV-L030-2018-0004-EA, August, 2018, at 3 (“The Appropriate Management Levels (AMLs) for the Mt. Elinore and Chokecherry HMAs set in the Pinyon MFP were established at the population levels that existed between 1971 and 1982. The AMLs within the Chokecherry and Mt. Elinore HMAs remain as set in the Pinyon MFP Wild Horse Amendment (1983)."). 93 Id. 94 Id. 95 NAS Report at 45. 96 NAS Report at 41. 97 NAS Report at 38. 98 BLM’s Handbook at § 4.4.6.3. 99 NAS Report at 161. 100 Bureau of Land Management, Removal of Excess Wild Horses and Burros Manual, 4720, §2.21(B).

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When an area is designated as an HA, populations of wild horses are zeroed out and, for the

most part, wild horses are removed from those areas. Notably, however, HAs are a

geographic area of public lands identified as habitat used by wild horses and burros in

1971, and therefore that land has already been designated as public land that should allow

wild horses. When the WHBA was passed in 1971, wild horses were protected on over 53.8

million acres. According to BLM, those 53.8 million acres are still designated as HAs but wild horses are only allowed on 31 million acres.101

In response to expanding HMAs, BLM states that they would have to amend existing land

use plans and complete the appropriate NEPA analysis on a case-by-case basis or on a

national level. BLM also states that designating lands for wild horses outside of the 1971

HA boundaries would require changes to the WHBA. BLM fails to explain why amending

existing land use plans and conducting appropriate NEPA analysis make this option non-

viable. There is no reason why BLM cannot amend land use plans, as it has done in the past, to expand HMAs into areas currently designated as HAs.

BLM states that the cost of holding and caring for the wild horses and burros off-range

remains the largest component of the program’s budget, using 60% of its $81 million

budget. However, none of BLM’s management options would help defray any costs.

BLM’s Report to Congress consists of costly and potentially harmful management options.

Instead of rounding up wild horses to be sold without limitation, sterilized, or euthanized,

BLM should expand existing HMAs to include surrounding HAs. BLM can change HA

boundaries to include HMAs so long as BLM submits a Land Use Planning amendment,

revision or new Resource Management Plan.102

E. Conclusion.

Some of BLM’s newest ploys to get around appropriate analysis and public participation

include ten-year plans and dangerous sterilization experiments.103 Under many of these

plans, no further environmental analysis would be conducted over at least the next ten

years and the public would be cut out of the process. These plans would rely on outdated

data for future removals and fertility control treatments. This goes against statutory

requirements in the WHBA as the Secretary is required to use current data to determine

appropriate management options.104

Additionally, BLM states several times that certain options would require BLM to amend

existing land use plans and complete appropriate NEPA analyses. However, BLM fails to

explain why this means that these options are not viable. BLM calculates AMLs based on

inaccurate population estimates and outdated counts. In its Report, BLM wholly fails to

101 Bureau of Land Management, Herd Area and Herd Management Area Statistics, available at https://www.blm.gov/sites/blm.gov/files/wildhorse_programdata_2018hmastats.pdf. 102 43 C.F.R § 4710.1; see also Bureau of Land Management, Land Use Planning Handbook, H-1601, § 1. 103 Warm Springs HMA Population Management Plan EA (DOI-BLM-ORWA-B050-2018-0016-EA). 104 16 U.S.C. § 1333(b)(1).

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justify how the management options that it presented would protect wild horses and

achieve a thriving natural ecological balance. BLM is required by law to protect wild horses,

but BLM is utterly failing to carry out its duty. Instead of attacking wild horses, BLM must

strive to protect the majestic animals that are left. Friends of Animals presented five

alternative management options through which BLM could protect wild horses and achieve

a thriving natural ecological balance. BLM must consider these options in order to save wild horses from disappearing completely.