There is something positively perverse about the gloating coming from the self-styled wild horse advocates over the 9th U.S. Circuit Court of Appeals rejection of a lawsuit intended to force federal land agencies in Nevada to reduce the overpopulation of feral horses on the range.
The suit from the Nevada Association of Counties, the Nevada Farm Bureau Federation and others asked the court to require federal agencies to follow the law, because its failure to do so is starving the very animals the law was intended to protect, as well as damaging range used for grazing and taking private water rights.
The Associated Press quoted a lawyer for one of the horse-hugger groups 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.?
A three-judge panel of the appellate court rejected the suit on what best could be described as a hair-splitting technicality, a sort of Catch-22.
Just as a Nevada federal judge had ruled earlier, 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 continuously deny and delay and dither.
It is not entirely the land agencies? fault. Congress is complicit.
The Wild Free-Roaming Horse and Burro Act of 1971, which NACO and others say is being ignored, specifically 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 blocked any spending for destroying excess mustangs.
The BLM itself reported in September that the population of free ranging wild horses and burros was 67,000, even thought the range can sustain a population of no more than 26,700 animals, which means that there is insufficient grazing for the horses and burros as well as cattle and sheep. The BLM itself has found that without roundups and fertilization controls that population can double every four years.
But the horse lovers seem willing to love the horses into misery and death.
The original lawsuit, filed in December 2013, is not just about ranchers being deprived of foliage and water rights by too many feral horses but also about the condition of those horses.
?First and foremost, Defendants? failures to properly follow the law have gravely harmed, and will continue to gravely injure the very animals that the Act was established to protect,? the suit points out. ?Both official reports and individuals have described the effects a failure to properly implement the Act on the animals themselves. 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. At least one individual was so disturbed by the condition of the horses he observed that he demanded of the local BLM office that they gather those horses together or the individual (said) he would notify the media contacts. The animals were then promptly removed.?
Now, who is being humane?
More than 60 percent of the BLM?s $70 million annual budget for managing wild horses and burros is consumed by warehousing more than 45,000 of the animals in off-range corrals and pastures.
Meanwhile, the feral horse and burro populations continue to grow apace, along with the problem.
Thomas Mitchell is a longtime Nevada newspaper columnist. You may email him at firstname.lastname@example.org. He also blogs at http://4thst8.wordpress.com/.