Black Mountain HMA - Kingman Burros Comments

April 1, 2020

Bureau of Land Management

Kingman Field Office

2755 Mission Blvd.

Kingman, Arizona 86401

Submitted online: eplanning.blm.gov/epl-front-office/eplanning/comments/commentSubmission.do?commentPeriodId=8001186

Re: Black Mountain HMA EA

These comments on the Black Mountain Herd Management Area Wild Burro Roundup DOI-BLM-AZ-C010-2019-0030-EA are submitted on behalf of The Cloud Foundation (TCF) and our hundreds of thousands of supporters nationwide. TCF is a 501(c)3 organization that is committed to protecting and preserving America’s wild horses and burros on our public lands through advocacy, education, and public participation in our government.

The Colorado River District and Kingman Field Office must, as recommended repeatedly by the National Academy of Sciences, acknowledge and report the number of Americans who have signed petitions and submitted comments on this issue (Attachment 1). The Bureau of Land Management (BLM) cannot discount or ignore the sentiment of the public. Burying public comments by labeling them “form letters” is the BLM’s attempt to silence Americans’ strong support for wild horses and burros and is a prime example of why the American public does not trust government agencies.

As stated by the NAS, NRC and CEQ the BLM must consider the prevailing public preference – which, in this case, is represented by TCF and many supporters. We strongly oppose the Proposed Action and the Alternatives because we cherish the opportunity to observe, photograph, and otherwise enjoy the Black Mountain burros which Congress declared to be “national esthetic treasure[s]” when it enacted the Wild Free-Roaming Horses and Burros Act of 1971.

The National Academy of Sciences (NAS) Report (hereafter “NAS Report”) on the BLM Wild Horse and Burro (WHB) Program dated June 2013 (Attachment 2) states:

“Horse and burro management and control strategies cannot be based on biological or cost considerations alone; management should engage interested and affected parties and also be responsive to public attitudes and preferences.” p. 292

The 1982 National Research Council report on the BLM’s wild horse and burro program stated:

“Attitudes and values that influence and direct public priorities regarding the size, distribution, and condition of horse herds, as well as their accessibility to public viewing and study, must be an important factor in the determination of what constitutes excess numbers of animals in any area… [A]n otherwise satisfactory population level may be controversial or unacceptable if the strategy for achieving it is not appropriately responsive to public attitudes and values…” (emphasis added)

“Biologically, the area may be able to support 500 cattle and 500 horses and may be carrying them. But if the weight of public opinion calls for 1,000 horses, the area can be said in this context to have an excess of 500 cattle. For these reasons, the term excess has both biological and social components. In the above example, biological excess constitutes any number of animals, regardless of which class above 1,000. Social excess depends on management policies, legal issues, and prevailing public preference...” (emphasis added)

According to the White House Council on Environmental Quality (CEQ), under the National Environmental Policy Act (NEPA), “agencies are required to determine if their proposed actions have significant environmental effects and to consider the environmental and related social and economic effects of their proposed actions.”

The BLM has succeeded in doing one thing over the years: they have proven that this roundup-and-stockpile policy is an economic failure. There is no doubt that rounding up wild horses and burros is an enormous fiscal failure, a failure from a societal perspective, a failure from a humane perspective and a failure from a management perspective.

I. Overview

BLM manages 12.2 million acres (more than 19,000 square miles) of public lands in Arizona. Wild burros live on less than 10% of those BLM-managed public lands -- 1,950 square miles. The BLM has arbitrarily set the unrealistic "allowable" management level (AML) of just 1,436 burros—less than one burro per square mile.

The Black Mountain burros are a historic herd, the largest of those the BLM is tasked with managing. It is also most likely our last genetically healthy burro herd and represents roughly 20% of the BLM-managed burro population. They are highly valued by the millions of tourists who have visited them and witnessed their amazing role in the Mojave and Grand Canyon desert environments.

Ginger Kathrens, founder and director of The Cloud Foundation, has observed, documented and filmed the Black Mountain burros many times in recent years, both for her personal enjoyment and on behalf of The Cloud Foundation. TCF highly values and appreciates being able to visit, observe and film these burros. The proposed removal(s) would hinder the enjoyment of our public lands. It is from Ms. Kathrens’ direct experience that we write in strong objection to the plan the BLM is proposing. This plan is inhumane. It lacks empirical foundation. And it violates the spirit and intent of the 1971 Wild Free-Roaming Horses and Burros Act (WFRHBA).

Under the WFRHBA, wild burros and horses are an “integral part” of the public lands on which they roamed in 1971. They are “living symbols” that “enrich the lives of the American people.” The Act was passed to keep them from “fast disappearing” as a protected national resource. The Proposed Action would violate the very intent of the WFRHBA.

The Black Mountain burro herd is a genetically significant population because the large number of burros (BLM estimates the population has historically exceeded 2,000 burros) provides for a genetically healthy population. This is necessary to ensure the long-term genetic health of burros as a species. Dr. Gus Cothran, the BLM’s geneticist, has presented the genetic data available on all burros managed by the BLM and it is clear from this data that the majority of burros face a genetic crisis.

The NAS Report states that the genetic viability of the U.S. burro population is in jeopardy due to the aggregated populations and overall low number of burros, stating: “removing burros permanently from the range could jeopardize the genetic health of the total population.” Clearly, burros should not be removed from what is likely to be the only genetically strong burro population in the U.S.

The EA fails to consider the cumulative effects that the Proposed Action will have on the national wild burro population. The long history of mass wild burro removals has literally crashed the species’ genetic health. Further removal of burros from the wild population could have tremendous long-term and cumulative impact on the national burro population.

The EA fails to take a hard look at this important effect – only stating “if the genetic health of the Black Mountain burro herd is unhealthy, burros from other HMAs would be added to the population.” This would not, however, prevent inbreeding and would arguably not address the genetic health crisis facing all burro populations today.

TCF strongly urges the BLM to re-assess and designate, through the land use planning process, the Black Mountain Herd Management Area (HMA) as a protected Wild Burro Range.

II. The EA Fails to Disclose and Analyze Information and Alternatives

The EA states: The BLM authorized officer will determine whether to implement all, part, or none of the proposed gathers and/or population control measures. The decision will not set or adjust AML within the Black Mountain HMA nor adjust authorized animal unit months (AUMs) for livestock grazing within the HMA, as these decisions were set through previous planning and implementation-level decisions and would be undertaken in conformance with applicable regulations.

The Proposed Action and current EA cannot hide behind 24- to 26-year-old planning documents. These documents are clearly outdated and no longer represent the prevailing public attitudes and preferences

The agency, through its old planning documents and current EA, has failed to implement solutions which would have mitigated many of the issues now cited as reasons for the Proposed Action. These include but are not limited to: fencing, placing water sources away from human developments and Streiter-Lite reflectors to decrease vehicle-burro accidents.

As this proposed action would destroy the last healthy burro population managed by the agency, the agency must take this very seriously. The BLM, through its negligence, created the situation currently facing the Black Mountain burros, and now seeks to punish the burros for its own managerial failures.

Additionally, despite receiving comments during the Scoping Period in 2015, the EA fails to address whether actions could be taken to mitigate the need for the Proposed Action. Such actions include, but are not limited to the following and will be addressed in greater depth in these comments -

· Analyze the current allocation that one AUM is able to provide enough forage for a modern cow/calf pair. Scientific data shows (Attachment 3) that a cow/calf pair today needs and consumes more forage than the quantity associated with an AUM. This is based on the increased size of cows, compared to the size of cows when the AUM system was first created. This data must be examined and assessed. A current range evaluation is essential in order to determine what impacts various species are having on the range, particularly if livestock have grazed in the area in recent years.

· Disclose and analyze the actual use of AUMs by livestock in the HMA for each of the last three years.

· Accommodate current wild burro numbers with continued range improvements and temporary or permanent reduction or elimination of livestock grazing pursuant to 43 C.F.R. 4710.5(a).

· Consider and analyze WFRHBA-compliant strategies to enable the burros to remain in the wild while at the same time mitigating public safety concerns. These include but are not limited to: Streiter-Lite reflectors which scare wildlife away from roadways; fencing along highways and urban areas; construction of wildlife overpasses or underpasses; public education and enforcement to prevent people from feeding burros along highway corridors; and restoration and repair of water sources to allow burros to more evenly distribute themselves and fully utilize the entire HMA.

· Disclose all rangeland health assessments for livestock allotments which overlap the HMA (including pastures, allotments, etc.), including all rangeland assessments used for the renewal of livestock permits, etc.

· Disclose information (including maps) regarding fencing within the HMA. This should include: when fencing is open or closed, information about water sources and the availability of those water sources, and whether water sources are available to livestock but fenced off from burros.

· Reveal the data and processes used to determine AML for the HMA. Include a complete list of all interested parties consulted when establishing AML and all scientific data used to set AML. Given that the Proposed Action is based on AML, this basic information must be disclosed in the final EA.

· Disclose the likely economic costs (long and short-term) associated with the capture, removal and warehousing of burros targeted for removal.

· Disclose a complete inventory of burros in government holding facilities, the average length of time burros spend in short-term holding and the number of burros adopted.

The Mohave County Supervisors have stated that public safety is their only motivation to addressing the burro population. Removal will not address the public safety issue of burros traveling onto roadways and private property. Roundups only kick the can down the road as new animals will move into those same areas in time (often in a very short time). The only way to increase public safety is to address why or how the animals are entering roadways and private properties. To this end, BLM should:

· Partner with ADOT to determine which stretches of roadways need fencing and/or Streiter-Lite reflectors, etc.

· Educate the public why it is important not to feed and water the burros which attracts them into neighborhoods and makes them more likely to get hit by cars.

· Ensure adequate water sources exist throughout the HMA.

· Immediately implement humane fertility control, such as PZP which preserves natural behaviors while suppressing population growth.

The EA failed to address these alternative actions.

III. The EA Fails to Address Humane Standards for Helicopter Roundups and

Public Observation

A. Humane Standards for Helicopter Roundups

The “APPENDIX F - Standard Operating Procedures for Wild Horse and Burro Gathers” is inadequate: “The rate of movement and distance the animals travel shall not exceed limitations set by the COR who would consider terrain, physical barriers, access limitations, weather, extreme temperature (high and low), condition of the animals, urgency of the operation (animals facing drought, starvation, fire rehabilitation, etc.) and other factors. In consultation with the contractor the distance the animals travel would account for the different factors listed above and concerns with each HMA.”

This statement fails to address any issue regarding humane treatment; it provides absolutely no guidance whatsoever. When helicopters are used as a part of any management strategy, the EA must consider, analyze and implement specific humane standards as outlined in the recommendations below. These recommendations are essential to reduce stress and harm to the animals during the roundup. The following must be considered:

i. Limit the distance burros may be chased by a helicopter to no more than five (5) miles.

ii. Require that the helicopter not chase/move burros at a pace that exceeds the natural rate of movement of the individual animal. Every effort should be made to keep older, sick and young animals together with their companions or mothers as they are moved to the trap. The helicopter should not move or capture compromised, old, weak or young animals.

iii. Establish strict requirements for suspending helicopter roundup operations in temperatures below 32 degrees F (freezing) or over 90 degrees F. Roundups outside of this temperature range would be blatantly inhumane.

(Attachments 5, 6, and 7)

B. Public Observation

There is significant public interest in the agency’s management of our federally protected wild horses and burros. The NAS specifically recommended that the BLM improve the transparency of the Wild Horse and Burro Program. Humane treatment of the animals and agency transparency are paramount.

The EA fails to consider and address the following with regards to public observation (First Amendment rights):

· Provide meaningful public observation of all agency actions – the “APPENDIX G - Wild Horse and Burro Gather Observation Protocol” fails to address whether or not the public will 1) have any ability to document and observe the burros running into the trap 2) will be able to document and observe the treatment of the burros in the trap, 3) will have the ability to document and observe the burros in temporary holding pens. By keeping public observers far from the trap and/or holding pens, the BLM is intentionally rendering public observation meaningless.

· Real-time cameras with GPS must be installed on all aircraft and/or helicopters used in operations and video should be live streamed on the Internet. This will improve the transparency and accountability of roundup operations and enable the BLM and public to monitor the direct impact motorized vehicle usage has on the wild burros and the environment.

· Real-time cameras must be installed on all traps, corrals and temporary holding pens, again, so that BLM personnel, public and media can monitor the entire roundup operation and treatment of the burros. If meaningful public observation, as described above, is not provided, real-time cameras are necessary to ensure the public has the ability to observe the government action. THE OMISSION OF ADDRESSING THIS ISSUE IN THE EA WILL BE CONSIDERED A DENIAL OF THIS REQUEST.

The recommendation of real-time cameras is also supported by a report commissioned by Cattoor Livestock Roundup, a long-time roundup contractor hired by the BLM, which states:

“Video monitoring of animal operations is a good way to ensure humane handling is taking place on a daily basis. Video cameras mounted in helicopters and in the capture and holding pens can also render the activists’ videos as simply nothing more than proof that your business ‘walks the walk’ when it comes to upholding animal welfare standards.” The report was prepared by Mark J. Deesing, Animal Behavior & Facilities Design consultant for Grandin Livestock Handling System. Deesing was an assistant to the highly regarded livestock industry consultant Dr. Temple Grandin. (Attachment 5)

Video cameras will improve the transparency of operations and enable BLM and the public to monitor the direct impact of all roundup processes on these wild burros and the environment. TCF would be happy to provide technical assistance and financial assistance to implement these real-time cameras as described above.

· All removal operations must be located on public lands to allow public observation of all activities. No government operations should be located on private lands where the owners will not give permission for public observation of activities.

IV. The EA Fails to Provide Data that Supports Estimated Population Number

The last survey, taken in 2014 by helicopter and adjusted, estimated there were 1,389 adult burros. The EA states (Section 3.3.1) that the current estimate of 2,205 adult burros derives from a “typical expectation” of a 15% growth rate. Basing the Proposed Action on a six-year-old census and six years of assumed growth is not good science.

Prior to the final EA, a new census must be conducted. BLM has repeatedly overestimated the number of wild horses or burros in a given HMA and rounded up fewer animals than anticipated because they literally could not be found. The best practice would be to conduct a current census prior to the issuance of a Final EA so that data can be disclosed and utilized.

V. National Environmental Policy Act (NEPA) Requires Review and Analysis of CURRENT Conditions

NEPA requires that agencies review current data and seek public input and information regarding currentgovernmental actions. BLM is attempting an end-run around their NEPA responsibilities in purporting that this EA would satisfy NEPA requirements for the next decade. This is patently false and a clear abdication of their NEPA responsibilities.

Due to changing environmental conditions, this EA cannot be sufficient under NEPA for actions taking place over the next 10 years. NEPA requires that BLM conduct further environmental analysis and accept public comment for additional roundups and management actions in the future. We strongly object to the Proposed Action on these grounds.

VI. The Proposed Action Would Destroy the Last Healthy Burro Herd

This EA eliminates a key alternative solution — raising the Appropriate Management Level — with a string of bureaucratic excuses.

The EA then cites a 2008 statement by equine geneticist Gus Cothran, stating that an AML of 478 would lead to little loss of genetic variability. Putting this in context -- a central task of any EA -- would open a different perspective.

The Black Mountain HMA is segmented by highways, steep cliffs, mesas and rough volcanic terrain which break the burro herd into subpopulations. Removing 73% of the WB population here will indeed genetically threaten, and likely doom, these fragmented sub-groups. In this HMA, the burro “herd” cannot be looked at through the lens of a metapopulation. Rather, any proposed action must be carefully considered in terms of how it would affect the current genetic health of these isolated sub-populations.

Dr. Cothran has pointed out that massive BLM roundups have already reduced the U.S. burro population to small, potentially inbred groups, leading to a genetic crisis for the population as a whole. The NAS Report found there was no science-based rationale for the agency’s practice of allocating forage resources and establishing AMLs. The report specifically recommended a reassessment of AMLs for burros to ensure the sustainability of genetically healthy populations. It stated that “removing burros permanently from the range could jeopardize the genetic health of the total population.” See references below:

· “removing burros permanently from the range could jeopardize the genetic health of the total population.” (NAS page 268)

· BLM "may need to assess whether the AMLs set for burros can sustain a genetically healthy total population." (NAS page 268)

· BLM must utilize “A participatory adaptive-management process for the setting and adjustment of AMLs…” (NAS page 250)

· “Environmental variability and change, changes in social values, and the discovery of new information require that AMLs be adaptable.” (NAS pages 12 and 253)

· “…management should engage interested and affected parties and also be responsive to public attitudes and preferences.” (NAS page 292)

Dr. Cothran stated, “The burros, I think, have in many cases had more severe population contractions [roundups] probably more inbreeding because of the smaller numbers on the land…. And one of things we are seeing is that most of the burro herds show very low [genetic] variability ... I think the burros, in terms of genetic diversity, are a much bigger problem than the horses are. And again, we have tested a fair number of burros...” Source: www.youtube.com/watch?v=f5HTuKtVMVg

Dr. Cothran has said that many burro populations have only a 20% genetic variability factor compared to a healthy genetic variability of 70%. At 50% variability, a population is considered “challenged.”

This EA fails to disclose the previous genetic reports from Dr. Cothran. The final EA must include copies of those reports. The BLM is compelled to full disclosure so the public has all available information in order to provide public comments.

VII. EA Relies on Faulty and Outdated Data

As a central argument for the proposed mega-removal of wild burros, the EA attributes “heavy resource damage,” water depletion, riparian habitat deterioration and “severe degradation” of the rangeland to wild burro overgrazing.

The EA states: “Burros can be more destructive to the range than cattle due to their differing digestive systems and grazing habits. Wild burros can exploit poor quality forage (reviewed in Douglas and Hurst 1993), as they have a similar digestive system to horses. However, the equine digestive system requires that horses and burros consume 20-65% more forage than a cow of equal body mass (Hanley 1982, Menard et al. 2002).”

In writing the above, BLM completely ignored pertinent information submitted during the Scoping period for this Proposed Action. The EA fails to consider or analyze whether the current allocation of one AUM represents enough forage to sustain a modern cow/calf pair for 30 days or one month.

BLM must re-assess its current method for calculating AUMs, which has not kept pace with the dramatic increases in average weight and size of cattle. Modern-day cattle are considerably larger than their ancestors were when the AUM system was first established, and thus they consume significantly more in terms of forage and water resources. Scientific data (Attachment 3), previously submitted during the Scoping Period, demonstrates that the quantity of forage represented by an AUM does not adequately represent what is consumed by the average cow/calf pair today.

"BLM is understating forage consumption by cow/calf pairs by a nominal 50% based on the average body condition and frame scores. The implication of this on stocking rates is obvious. Based on forage consumption alone, not considering proper utilization, forage capacity and capability factors, BLM is over stocking allotments by 33% based on failure to take into account current cattle weights and calves." (Attachment 3)

Industry sources clearly show that the cows and calves bred today are larger. Modern cows weigh between 1,210 lbs. and 1,870 lbs. (Attachment 4) Despite the overwhelming information coming directly from the livestock industry, BLM continues to use the outdated 1,000 lb. cow weight: “Animal Unit: One mature (1000–pound) cow or its equivalent based on an average daily forage consumption of 26 pounds of dry matter. Animal Unit Month: The amount of forage necessary for the sustenance of one cow or five sheep for one month. (BLM 1995)”

The BLM formula that a cow/calf pair consumes the same forage in one month as two burros under-calculates the true forage consumption of livestock on the range. The final EA must re-examine this issue and re-assess livestock usage on the allotments within the HMA boundary. As stated in Section II above, the BLM must also disclose the actual use of livestock AUMs.

The EA also fails to consider that burros are disproportionately blamed for vegetation usage. A study conducted by Public Employees for Environmental Responsibility (PEER), and hereby incorporated in these comments, found that the BLM’s method in assessing rangeland conditions is seriously skewed toward minimizing the impacts of domestic livestock and magnifying those from wild horses and burros. (Attachment 9)

PEER found that the BLM’s approach to range management targets scattered wild horses and burros while ignoring far more numerous cattle. The organization based this finding on an appraisal of the BLM’s own report assessing the factors influencing the Great Sage-Grouse habitat.

In the report, BLM supposedly found that wild horses and burros have twice the negative impact that livestock do sage grouse habitat. However, PEER’s review revealed that the agency did not use the same approach for calculating the influence of livestock compared to wild horses and burros. If it had, the area of influence for livestock would have been roughly 14 times greater than what was presented in the report, and more than 6 times that of wild horses and burros. This PEER report in combination with Dr. Carter’s research (Attachment 3) highlights that the EA fails to consider the true impacts of livestock on the range when determining the Proposed Action.

It is evident that there is tremendous scientific controversy surrounding the BLM’s failure to take a hard look at the true range impact of livestock and the agency’s propensity to blame wild burros for range degradation. An unbiased, truly scientific analysis and study is needed before the EA’s Proposed Action can even be considered.

VIII. 43 C.F.R. 4710

The EA fails to consider the alternative action to temporarily or permanently reduce or eliminate livestock grazing in the HMA pursuant to 43 C.F.R. 4710.5(a). This regulation allows BLM to close a public land area to livestock grazing, "If necessary to provide habitat for wild horses or burros, to implement herd management actions, or to protect wild horses or burros, to implement herd management actions, or to protect wild horses or burros from disease, harassment or injury.” BLM has the discretion to implement this statute -- either temporarily or permanently -- and this action is available whether or not there is an emergency.

This alternative would forgo or greatly reduce removals and accommodate current wild burro numbers by using the agency's Adaptive Management mandate and its discretion under 43 C.F.R. 4710.3-2 and 43 C.F.R. 4710.5(a), which allows for the reduction or elimination of grazing for privately-held animals in order to improve conditions and forage availability for wild horses or burros.

The data presented in the EA suggests that livestock grazing within the HMA is at least 7,334 AUMs or the annual equivalent 1,222 burros. Based on this data, the high AML of 478 burros (equivalent to 2,868 AUMs) represent just 28% of the AUMs permitted within the HMA.

Livestock is permitted to graze far outside the HMA and yet the livestock is still allocated 73% of the forage within the HMA. (Attachment 10) This is not in conformance with the Wild Free-Roaming Horses and Burros Act which clearly states, the definition of range is the amount of land needed for a herd and it should be “devoted principally” to their welfare. The plain language of the Act is undeniable. Congress was not referring to creating a special “range” but rather the “range means the amount of land necessary to sustain an existing herd.”

IX. Preserve Natural Behaviors

The EA fails to consider any alternative action that does not have detrimental effects on the natural, wild behaviors of the burros. The Proposed Action includes severe sex-ratio skewing which would increase the aggression of jacks as they compete for jennies. If implemented, jennies would be brutally pursued by jacks due to the unnatural ratio of males : females on the range. The Cloud Foundation has video documentation of this sad outcome and urges BLM to reconsider this sadistic management strategy.

The social structure of wild burros is quite different from wild horses in which a dominant stallion defends his family of mares and young offspring. Jack burros are often in their own bachelor groups until breeding season. In the Marietta Wild Burro Range, our footage shows the rape of a young jenny by a dozen jacks. When the BLM was questioned about the sex skewing---leaving far fewer females than males. The BLM employee in charge of this herd replied that “the jennies are easier to adopt out.” This is a management strategy that must not occur in Black Mountain.

The Proposed Action additionally fails to identify which fertility control drug or vaccine will be utilized on the jennies – leaving the door open for drugs/vaccines that destroy the natural hormone production of female burros. TCF has strong objections based on scientific data related to specific fertility control drugs/vaccines. We request full disclosure, prior to issuance of the Decision Record, of the specific drug/vaccine that will be used, the protocol for using that drug/vaccine, and any intention to reapply the drug/vaccine to the jennies.

TCF opposes the alternatives presented in the EA because they include either sex ratio skewing or gelding as management practices. The BLM must prioritize preserving natural wild burro behaviors as part of a humane management program. The NAS determined "preserving natural behaviors is an important criterion" for wild horse and burro management. Therefore, the following should be precluded from management actions:

· Sex ratio skewing which causes jack aggression due to the unnatural ratio of males to females.

· Castration, ovariectomy and other surgical sterilization that alters the animal's ability to produce natural hormones.

· Any fertility control measure that alters the production of natural hormones.

In 1971, Congress unanimously passed the Wild, Free-Roaming Horses and Burros Act. It was not called the "American Horses and Burros Act" for a reason. The word "Wild" has distinct meaning, especially when it comes to wild horses and burros. Altering the natural production of hormones (via gelding or drugs/vaccines that destroy jennies’ cycles) threatens the ability of these burros to survive in the rugged and extreme environment where these animals live.

Natural behaviors are essential to the well-being of any animal (including humans). Altering natural hormone production through castration essentially changes how that animal feels and behaves. Gelding, ovariectomy and drugs/vaccines that shutdown natural cycles are primarily used on domestic horses and burros to change behaviors – to make the animals more docile and conducive to training.

Interfering in this way with wild horses or burros is counter to the very spirit of the 1971 WFRHB Act. Wild horses and burros living in extreme and challenging environments rely on their natural instincts for survival. Destroying natural behaviors may actually put the lives of these animals at risk.

The 2013 National Academy of Sciences conducted a BLM-commissioned scientific review of the agency’s Wild Horse and Burro Program. The NAS stated that maintaining natural behaviors in free-ranging horses is in the public interest and that BLM should be more responsive to public sentiment: “Individual males vary in their behavioral response to castration—for example, in the loss of male-type behavior, such as aggression and sexual interest, depending on the age and sexual experience of the male. However, some or total loss of sex drive would be likely in castrated stallions, and this is counter to the often-stated public interest in maintaining natural behaviors in free-ranging horses.” (page 123)

TCF thus opposes management strategies that would alter the natural hormone production of these wild animals, while fully supporting implementation of a PZP program to manage population growth.

XI. Applicable Laws and NAS

The EA and Proposed Action must address and be in conformance with applicable laws, regulations and statues including but not limited to those listed herein.

A. Federal Land Policy and Management Act of 1976 (FLPMA)

FLPMA requires that BLM “balance wild horse and burro use with other resources” which equates, at minimum, to a 50-50 allocation of available forage between horses/burros and livestock on HMAs. The final EA and Proposed Action must take this into consideration.

FLPMA addresses the importance of the non-market value within its definition of the term “multiple-use.” FLPMA requires that:

“(c) . . . consideration being given to the relative values of the resources and not necessarily to the combination of uses that will give the greatest economic return or the greatest unit output.”

The intrinsic value of wild horses and burros falls under the non-market definition specified by both laws.

Sec. 302 of FLPMA states:

“(a) The Secretary shall manage the public lands under principles of multiple use and sustained yield, in accordance with the land use plans developed by him under section 202 of this Act when they are available, except that where a tract of such public land has been dedicated to specific uses according to any other provisions of law it shall be managed in accordance with such law,” [43 U.S.C. 1732] and Sec. 102 “(b) The policies of this Act shall become effective only as specific statutory authority for their implementation is enacted by this Act or by subsequent legislation and shall then be construed as supplemental to and not in derogation of the purposes for which public lands are administered under other provisions of law” [43 U.S.C. 1701]

In addition, FLPMA requires the public lands to be administered for “multiple-use,” which Congress defined as:

“the management of the public lands and their various resource values so that they are utilized in the combination that will best meet the present and future needs of the American people . . . with consideration being given to the relative values of the resources and not necessarily to the combination of uses that will give the greatest economic return or the greatest unit output.” [43 U.S.C. § 1702(c)].

While commercial livestock grazing is permitted on public lands, it is not a requirement under the agency’s multiple use mandate as outlined in the Federal Land Policy and Management Act of 1976 (FLPMA). Public lands grazing is a privilege and not a right, and the BLM is mandated by law to protect wild horses and burros. Therefore, the agency’s management and Draft EA should reflect these priorities and legal requirements.

For “grazing on public lands is a privilege, and not a right,” see 43 U.S.C. § 315b & 16 (1943 Taylor Grazing Act, stating that grazing preferences "shall not create any right, title, interest, or estate in or to the lands" belonging to the U.S. Government); 43 U.S.C. § 580l (FLPMA similar provision); Omaechevarria v. Idaho, 246 U.S. 343, 352 (1918) ("Congress has not conferred upon citizens the right to graze stock upon the public lands. The government has merely suffered the lands to be so used"); U.S. v. Fuller, 409 U.S. 488, 494 (1973) (grazing permittee does not acquire a property interest in grazing permit); Swim v. Bergland, 696 F.2d 712, 719 (9th Cir. 1983) ("license to graze on public lands has always been a revocable privilege"); Osborne v. United States, 145 F.2d 892, 896 (9th Cir. 1944) ("it has always been the intention and policy of the government to regard the use of its public lands for stock grazing. . . as a privilege which is withdrawable at any time for any use by the sovereign without the payment of compensation"); Diamond Bar Cattle Co. v. U.S.A., 168 F.3d 1209, 1217 (10th Cir. 1998) (permittees "do not now hold and have never held a vested private property right to graze cattle on federal public lands"); Alves v. U.S., 133 F.3d 1454 (Fed. Cir. 1998) (holding that neither grazing permit nor preference is a compensable property interest).

B. Taylor Grazing Act (TGA)

The TGA provides the government broad discretion to decide whether to allow livestock owners to use the public lands i.e., the issuance of a grazing permit does not confer any entitlement or right to use the public lands; rather, it is a privilege that can be taken away if necessary to protect the health of the range and even if necessary to protect the wild horses. See 43 U.S.C. § 315b (BLM, is “authorized” to issue permits for the grazing of livestock on public lands “upon the payment . . .of reasonable fees”); id. (“the creation of a grazing district or the issuance of a [grazing] permit . . . shall not create any right, title, interest, or estate in or to” these public lands. Id. (emphasis added). The TGA also provides that the Secretary “is authorized, in his discretion, to . . . classify any lands within a grazing district, which are . . . more valuable or suitable for any other use,” 43 U.S.C. § 315f, including use by wild horses that are required to be protected under the WHA (Wild Horse Act). See 16 U.S.C. § 1333(a); see also 43 C.F.R. § 4710.5(a).

Livestock grazing on public lands is a privilege that can be taken away to protect the health of the range and even, if necessary, to protect wild horses and burros.

C. Wild Free-Roaming Horses and Burros Act of 1971

The following is a general definition of “range” in the 1971 Act and it applies to all BLM-managed public lands where the horses/burros were “presently found” in 1971 and thus applies to all Herd Areas

“Definitions . . . (c) ‘range’ means the amount of land necessary to sustain an existing herd or herds of wild free roaming horses and burros, which does not exceed their known territorial limits, and which is devoted principallybut not necessarily exclusively to their welfare in keeping with the multiple-use management concept for the public lands; . . .” [Public Law 92-195 § 1332]

D. National Academy of Sciences and National Research Council

The National Academy of Sciences (NAS) was founded in 1863 in the midst of the American Civil War. The National Research Council (NRC) was founded in 1916 against the backdrop of the First World War. These two independent research bodies have played significant roles to ensure the U.S. government is provided balanced, fact-based information and data which should be incorporated in governmental decision-making processes.

The EA should consider recommendations and reviews from the NAS and NRC – while directed to the BLM Wild Horse program, these positions are applicable to the USFS management of Congressionally-protected wild burros.

The NAS Report also supports the above requirements of FLPMA:

“It is unlikely that all the values involved can be monetized in a way that is satisfactory to all parties, so use of economic policy tools such as benefit-cost analysis and contingent valuation, although potentially informative, is not able to resolve value differences fully and is not adequate to support decisions.” p. 273

“Livestock grazing occurs on 160 million acres of land (65% of BLM land) with a maximum of 12.5 million AUMs of grazing authorized and 8.6 million AUMs used. By contrast, wild horses exist on 26.9 million acres of BLM land and are authorized 318,060 AUMs and are estimated to have used 447,689 AUMs. Put another way, of forage allocated on BLM land to wild horses and livestock, wild horses account for just 5% of consumption, while livestock account for 95%.”

The BLM must consider the interests of those who cherish the opportunity to observe, photograph, and otherwise enjoy the Black Mountain burros.

XII. Conclusion

Burros provide environmental services that are uniquely valuable to the desert ecology. They open up winter trails and water sources for other wildlife, including bighorn sheep. Their hooves cut through ice. They dig water holes, often over a meter deep. https://www.youtube.com/watch?v=faT-u5QaISg

The EA insinuates that mass burro removal would improve habitat for “all wildlife species.” No evidence is presented to support this claim. Wild burros are, according to the WFRHB Act of 1971, a federally protected wildlife species. They have been an integral part of the Black Mountain range for hundreds of years - far longer than domestic livestock. In the 1500s, the Spanish conquistadors relied heavily on donkeys in their explorations of the American West. It’s about time the BLM recognized their role as heritage animals.

The unique value of this herd and the public interest in its preservation calls for a bold solution. The Black Mountain HMA should be revised to a protected Wild Burro Range, through an amendment to the Colorado River District’s Resource Management Plan. Despite the EA’s cavalier dismissal of this alternative, it is well within the scope of an EA/EIA to make this recommendation. The current HMA designation does not recognize or come close to protecting this critically important burro population.

The overall message of this EA is that the BLM is not interested in managing the wild burro population. Instead, the HMA is and will continue to be managed for livestock, not burros. This is wrong. It violates the letter and spirit of the 1971 Wild Horse Act. With its draconian measures and anti-burro bias, the EA fails even to address the real issues it identifies, including highway accidents, private property trespassing, burro presence in Oatman. Rather than scapegoat burros, we’d like to see a serious program to correct these

problems through public education against feeding wild equids, fencing, restoring access to the Colorado River on the Havasu side, and installing streiter light reflectors to prevent burro deaths and highway collisions.

An EIS, Not a Bogus 10-Year EA

We oppose a 10-year EA. The BLM has a responsibility to carry out environmental analysis and public review for the series of wild burro roundups, population suppression and other management actions that are proposed. A 10-year duration would silence public input and radically undermine the 1971 Wild Horse Act.

The serious issues raised by the EA need to be addressed in an environmental impact statement. The cumulative effects list trotted out at the end of this document hardly scratches the surface of these and related concerns. If we accept the EA’s premise that the Black Mountain burros are part of a “megapopulation,” then the impact of a massive removal on other, genetically stretched wild burro herds must be examined. Another serious unaddressed question is the effect of adding large numbers of burros to holding facilities at a time when the COVID-19 virus has placed often unmanageable pressures on BLM staff.

Addressing the Ejiao Trade

Finally, a credible environmental impact review must account for the effect of swelling the captive burro population while the legitimate US donkey adoption market is over-capacity and the donkey skin trade is making huge inroads into global donkey populations. A November 2019 report by the esteemed UK Donkey Sanctuary found that half the international donkey population could be killed for their hides in the next five years to meet the insatiable demands of the ejiao commerce. https://www.thedonkeysanctuary.org.uk/sites/uk/files/2019-11/under-the-skin-report-revised-2019.pdf

The US has been identified as a supplier of this lucrative trade, which attracts many criminal elements that can easily prey on the “pay the adopters” and other incentives offered by the BLM to empty its busting-at-the-seams holding pens. We cannot over-emphasize the ghastly sufferings inflicted on burros, wild asses and donkeys by this practice. Most are transported long distances. Upwards of 20 percent arrive lifeless, with many more maimed and starving. Because traders have no incentive to look after animal welfare, dead burros are worth the same as the living.

Do Right by the Burros and the BLM

The BLM does a grave disservice to the public lands and the burros it is charged to look after by putting forth an EA that draws population figures out of a hat, that scapegoats wild burros for their existence, and that fails to address even the practical problems it identifies. We urge you to revise this flawed review and to work with interested individuals and non-profit groups to manage these vitally important equids on their Congressionally designated wild lands.

Ginger Kathrens

Executive Director

The Cloud Foundation

Attachments:

1. Petition

2. “Using Science to Improve the BLM Wild Horse and Burro Program: A Way Forward,”

National Academy of Science, July 2013

3. “Updating the Animal Unit Month,” Dr. John Carter, Western Watersheds Project

4. Livestock Industry cattle information

5. Dr. Hutchinson letter

6. Dr. Garretson letter

7. HSUS Report: Recommendations on the Bureau of Land Management’s Standard Operating

Procedures for Wild Horse and Burro Gather Operations

8. Temple Grandin letter dated 2012

9. “BLM Weighs Wild Horse Impacts Much More Heavily Than Cattle,” PEER, 2014.

10. BLM Livestock permits

Dana ZarrelloApril 1, 2020