Wyoming Checkerboard Draft Wild Horse Amendment Comments
April 30, 2020
Kimberlee Foster, Rock Springs Field Office Manager
BLM High Desert District/Rock Springs Field Office
280 Highway 191 North
Rock Springs, WY 82901
Submitted online: https://eplanning.blm.gov/epl-front-office/eplanning/comments/commentSubmission.do?commentPeriodId=8001035
Dear Ms. Foster,
The Cloud Foundation (TCF), is a 501(c)3 nonprofit organization committed to protecting and preserving America’s wild horse and burros on our public lands through education and advocacy. On behalf of TCF and our nearly 500,000 supporters, I respectfully submit these comments on the Bureau of Land Management’s (BLM) Draft RMP Amendment and EIS for Wild Horse Management in the Rock Springs and Rawlins Field Offices, Wyoming (DOI-BLM-WY-D040-2011-0001-RMP-EIS).
Introduction
TCF strongly opposes the zeroing out of wild horses and/or the reduction of the “Allowable” Management Level (AML) for the Great Divide Basin, Salt Wells Creek, White Mountain, and Adobe Town Herd Management Areas (HMAs). We also oppose the creation of non-reproducing herds as a management strategy.
TCF does not support or condone the Draft RMP Amendment and Environmental Impact Statement (EIS) Preferred Alternative D, nor Alternatives B or C which include:
· Eliminating or dramatically reducing wild horses from public lands in southern Wyoming
· Destroying wild horse natural behaviors through sterilization
· Skewing sex ratios which would destroy natural social structure causing increased aggression, stress and harm to wild horses
I, along with TCF’s board, staff and supporters, are interested and affected parties in this action. We enjoy and appreciate the wild horses currently living in southern Wyoming. We appreciate wild horses specifically for their natural behaviors – their social bonds, herd dynamics and individual personalities. We strongly oppose the removal of these horses and any management actions that will interfere with or destroy natural behaviors or herd social structures.
I. AML, AUMs, Livestock Grazing and Rangeland Health
The EIS fails to consider or adequately analyze the effects of multiple individual users on the southern Wyoming Checkerboard rangelands.
AUMs
It is common knowledge that today’s cattle are much heavier (nearly 40%) than those of a half century ago. Therefore, the current allocation of one AUM does not represent adequate forage to sustain a modern cow/calf pair for 30 days or one month.
Wild horses, on the other hand, have not significantly grown or changed in size. This leads to the inescapable conclusion that modern livestock on the range are eating more than their allocated share of forage and are having a greater impact on rangeland health than is being attributed to them. Wild horses are just one user in a multiple-use system. The effects of ALL users and their cumulative impacts must be analyzed and incorporated in a final EIS/RMP.
"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 13)
Per industry sources, modern cows weigh between 1,210 lbs. and 1,870 lbs. (Attachment 14) But despite this industry information, 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)”
From a study by Daniel Uresk, a senior research biologist for the USFS, published by the Society For Range Management: “An animal unit month (AUM) is based on a 1,000-pound cow with calf consuming 26 pounds of oven-dry weight per day.1 Forage consumption has increased in recent years due to larger cattle and calves.2 This has prompted the USDA Forest Service to evaluate various options for change. In addition, recent public aware- ness has also raised concern that the animal unit and AUM needs updating.” (Attachment 16)
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. Scientific data (Attachment 13 & 16), demonstrates the disparity clearly, and BLM must recalculate livestock stocking rates accordingly and give wild horses their fair share (at minimum 50%). BLM must also disclose the actual use of livestock AUMs in these 4 HMAs.
Rangeland Health and Riparian Areas
Livestock (majority user) along with wildlife (wild horses included) constitute an intertwined system of multiple users on our public lands. Per Congress in the 1971 Wild Free-Roaming Horses and Burros Act, wild horse habitat such as the 4 HMAs addressed in this EIS, “is devoted principally but not necessarily exclusively to their [wild horses and burros] welfare...” [Public Law 92-195 § 1332] Thus the rangelands and their health must be managed primarily with the welfare of our federally-protected wild horses in mind, and for not privately-owned livestock.
This is relevant because the EIS fails to produce current rangeland health assessments. Therefore, we do not have current data which accurately represents the on-the-ground conditions of the range in these 4 HMAs. This information is necessary for us to understand the context in which these decisions were made as is our First Amendment right.
Over the decade or more since the last rangeland health assessments, we have seen and felt the inexorable forces of climate change. The effects of climate change – and of ALL users – must be analyzed and incorporated into any final RMP. The following must be disclosed:
· Which allotments would show a change of status (pass/fail) since their last rangeland health assessment?
· What does current data show the effect of private livestock on the range to be?
· What does monitoring data show as the current actual livestock forage consumption vs. what the AUM concept says they are supposed to be consuming?
· What do current monitoring studies show the effect of climate change to be on these specific rangelands? This data must be produced.
Delicate riparian areas are particularly susceptible to damage due to livestock overuse. While horses trail in and out to water, cattle are more sedentary creatures due to their ruminant digestive system. They congregate close to water, trample the ground, denude the soil and foul the water with their excrement.
A scientific study titled “Factors Influencing Selection of Resting Sites by Cattle on Shortgrass Steppe” by R.L. Senft, L.R. Rittenhouse and R. G. Woodmansee which took place in northeastern Colorado, found that “A significant portion of daytime resting occurred near water (23%)…at all times of the year” and that the observed resting time near water was always higher than what the researchers expected. (Attachment 15) It is also important to note that the watering area was defined as “the area within a 100m radius of the water tank,” supporting the assertion that cattle spend a significant amount of time lingering in very close proximity to water.
Since these HMA rangelands must, by order of Congress, be managed primarily for the welfare of the wild horse herds, livestock damage in Riparian areas must be analyzed regularly and measures taken to restore these areas as soon as damage is noted. The following must be disclosed:
· Would any of the riparian areas in the 4 HMAs show a change in status or show significant degradation, if a rangeland health assessment had been done in the past decade?
· How many (what percentage) of these areas show a downward trend now due to overuse by the primary user – privately owned livestock?
· How many (what percentage) of streams/riparian areas are drying up altogether as a result of climate change trends?
· Have riparian areas shown significant changes in patterns of use or degradation since permits were changed from sheep to cattle?
· If so, what is the trend in these areas?
· If cattle AUMs were switched to horse AUMs, would we expect to see a reduction in grazing pressure in riparian areas, since horses do not congregate as long near water?
· Where is the current (not decades old) monitoring data that supports the proposed alternatives in the EIS? This data must be produced.
· Current monitoring data that implicates wild horses in rangeland and riparian area damage must be produced, if it exists.
· Current monitoring data that analyzes the impact of the privately-owned livestock on rangeland and riparian areas must be produced.
· Current data analyzing forage allocation (in its proportionate ratio of users) and the implications on rangeland health and riparian area degradation must be produced.
BLM cannot simply avoid its duty to adequately, scientifically, and continually analyze the impacts of all users, particularly when livestock grazing by private parties is a privilege and not a right. Why does the EIS fail to include an alternative that cuts livestock AUMs, when livestock, as the primary user (majority of animals) must bear the majority of responsibility for range and riparian degradation?
The EIS fails to adequately consider sufficient reasonable alternatives. An alternative that analyzes and addresses the welfare of wild horses (as the lawful primary user), all wildlife, riparian area improvements, and livestock allocations – including the impact of livestock on rangeland health and the impact of reducing livestock in these HMAs – must also be included.
Appropriate Management Level (AML)
No data has been provided to account for or support the current AMLs of the 4 HMAs addressed in the EIS. The following questions must be addressed, and data produced:
· When was AML first calculated for these HMAs and upon what rangeland data analysis was it based? This data and the AML calculation formula must be produced to support BLM’s claim that the range can only support this number of horses.
· Upon what data was livestock AUM allocation originally based?
· In what year were AUMs originally set?
· Have AUMs been recalculated since? As mentioned previously, modern cattle are significantly larger, thus if AUMs/forage allocation have not been recalculated since the origin of these HMAs, they must now be recalculated. This data must be produced.
· Where is the on-going current monitoring data that supports AML and AUM allocation? This data must be produced.
· If the EIS solutions are carried out, who will the horse AUMs be reallocated to? This information must be disclosed.
Where the horse AUMs are going to be reallocated and why (what purpose does conversion serve) is a public concern and we have a First Amendment right to know.
The BLM may not resort to the extreme and drastic measure of zeroing out all horses from their dedicated habitat without producing hard data and analysis to support it. Where is this data? We suspect it does not exist.
A detailed forage allocation and usage analysis must also be included for each proposed alternative, as it is essential information for the interested and affected parties to have in order to understand the context in which these decisions are being made.
II. EIS Fails to Address that Wyoming Is a Fence-Out State
The EIS claims, “The need for the plan amendment is driven by the checkerboard pattern of public and private land ownership within the HMAs…and RSGA’s withdrawal of consent to maintain wild horses on its privately-controlled lands, as embodied in the 2013 Consent Decree.”
Wyoming is a fence-out state for livestock (except sheep), wildlife and other animals. Landowners who prefer not to have wildlife and other animals on their property are responsible for fencing them out. [WY Stat § 11:28:101-108(2019)] The statute makes no exception for wild horses, despite WY Stat § 11-30-115 (2019),[1] which outlines the state criminal code for killing a wild horse. Wyoming’s fence-out state mandate is a matter of public interest. (See Attachment 1) The EIS fails to address this issue.
After receiving a written request for removal of wild horses from a private landowner, there is no mandate for (a) when horses shall be removed, (b) where horses shall be removed to, or (c) that horses should not be permitted to continue to live on the public lands adjacent to the unfenced private properties. In fact, there is no legal basis for the removal of wild horses from public lands merely because private property owners refuse to fence-out their private property as required by state law. The EIS ignores these legal facts.
III. Intent of Congress Is Clear on Public Lands Designated as Wild Horse Habitat
The EIS proposes, in Alternatives B, C and D to eliminate, or “zero out”, all wild horses from more than 1.5 million acres of public lands which were Congressionally designated as wild horse habitat. While there may be extenuating circumstances in some rare cases to support such drastic action, this EIS fails to make the case for such an extreme solution in the Great Divide Basin, Salt Wells Creek, White Mountain and northern portion of the Adobe Town Herd Management Areas (HMAs).
A. 1971 Wild, Free-Roaming Horses and Burros Act (Act)
The EIS fails to consider the Congressional mandate for managing wild horses on public lands, including the Checkerboard lands, which existed when the Act was unanimously passed by Congress.
1. The Intent of Congress Is Clear: Designated “Range” is “Devoted Principally” for Wild Horse Use
Congress clearly stated in the Act that wild horses have a special, protected status.
The Act specifically defines the "range" where wild horses were “presently found” (in 1971) as “the land necessary to sustain an existing herd or herds of wild free-roaming horses.” The Act also specifically states that this wild horse habitat “is devoted principally but not necessarily exclusively to their [wild horses and burros] welfare...” [Public Law 92-195 § 1332]
The BLM does not hold any discretion or authority to diverge from the clear, stated intent of the United States Congress. Congress told the BLM those lands are (must be) devoted principally to these federally protected animals. Had Congress wanted to provide BLM with discretion, the word “may” would have been used rather than “is”. Wild horse habitat “is devoted principally but not necessarily exclusively to their [wild horses and burros] welfare...” [Public Law 92-195 § 1332]
Again, the language of the Act leaves no possible ambiguity for Congress’ intent, that wild horses “are to be considered in the area where presently found, as an integral part of the natural system of the public lands.”
“If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837, 842–43(1984).
BLM’s regulations state that “wild horses and burros shall be considered comparably with other resource values in the formulation of land use plans.” [43 CFR 4700.0-6][2] Yet, the EIS fails to render a comparable evaluation of wild horse use of the public Checkerboard lands with that of the privately-owned livestock. BLM has thus failed to live up to its own published requirements.
As a result of BLM failing to do a comparable analysis, these Wyoming wild horses stand to lose everything under this EIS, while the private livestock interests stand only to gain. This is directly counter to Congress’s intent and mandate for the protection of wild horses under the 1971 Act and therefore is not a viable or legal solution.
When Congress designated wild horses as the principal user of their designated wild horse habitat, they also effectively stated that the wishes or interests of private livestock groups cannot be the determining factor or driver behind decisions about how to manage that habitat.
The Wyoming Checkerboard existed at the time the Act was unanimously passed by Congress. The Act clearly outlines that if there is a conflict between livestock and wild horse usage, livestock must be the first “user” to be reduced or eliminated from these public lands. The RSGA may either fence their private land so as to disallow the horses access (as noted in section II of these comments) or they may accept that the wild horses of Wyoming are the principal user of the public lands in the Checkerboard and that RSGA’s grazing permits are a privilege, not a right, which can be revoked at any time.
Congress also required in the Act that “All management activities shall be at the minimal feasible level...” (emphasis added) Eliminating all wild horses and implementing sterilization that will destroy natural behaviors are not “minimal” management actions. Nothing could be more extreme than eliminating all wild horses or destroying the very essence of their wildness.
BLM has a responsibility to manage and protect wild horses. It does not have a mandate or the authority to remove them entirely from their land where not warranted by extreme environmental circumstances. And BLM certainly does not have the authority or right to do so as a capitulation to private livestock interests.
The creators of this EIS clearly fall into the latter of the two categories of BLM personnel noted in the 1982 National Resource Council’s report on the BLM Wild Horse Program: “Indeed, we have met many [BLM] employees who are sincerely committed to wild horse and burro management in the spirit of the 1971 Act. But our experience also suggests that the Bureau must be sensitive to considerable pockets of resistance to the program within its own ranks and to the pressures which many district and area personnel feel to depict range, population, and other conditions in an antihorse and antiburro context.” (emphasis added) We will discuss this in further detail below.
B. National Academy of Sciences
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 1971 Act instructs the Secretary of the Interior to consult with the NAS. The BLM-commissioned 2013 NAS report “Using Science to Improve the BLM Wild Horse and Burro Program: A Way Forward” (NAS Report) (Attachment 2) clearly states:
“Horse and burro management and control strategies … should engage interested and affected parties and also be responsive to public attitudes and preferences. Three decades ago, the National Research Council reported that public opinion was the major reason that the Wild Horse and Burro Program existed and public opinion was a primary indicator of management success (NRC, 1982). The same holds true today.” p. 292
The NAS Report also notes:
“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
“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%.” (emphasis added)
The 1984 National Academy of Sciences report on the BLM’s wild horse and burro program states[3]:
“It continues to be obvious that the major motivation behind the wild horse and burro protection program and a primary criterion of management success is public opinion. 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. The choice of control strategies, when and if they become necessary, must also be responsive to public attitudes and preferences and cannot be based solely on biological or cost consideration. The issue of excess numbers is conceptually severable from the strategies questions. However, an otherwise satisfactory population level may be controversial or unacceptable if the strategy for achieving it is not appropriately responsive to public attitudes and values.” p1219
“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...” p1193
“[BLM] Personnel attitudes must also be accounted for in the decision-making process. We have, in the process of our inquiries, encountered a broad range of attitudes toward the wild horse and burro management program among BLM employees. We are not, however, confident that attitudes are evenly distributed throughout the Bureau. Indeed, we have met many employees who are sincerely committed to wild horse and burro management in the spirit of the 1971 Act. But our experience also suggests that the Bureau must be sensitive to considerable pockets of resistance to the program within its own ranks and to the pressures which many district and area personnel feel to depict range, population, and other conditions in an antihorse and antiburro context.” p1219-20
I, TCF’s board and our hundreds of thousands of supporters, are interested and affected parties in this action. The EIS fails to consider the interests of those who cherish the opportunity to observe, photograph, and otherwise enjoy wild horses and their natural behaviors in the Great Divide Basin, Salt Wells, White Mountain and Adobe Town HMAs … these are the very horses which Congress declared to be “national esthetic treasure[s]” when it enacted the Wild Free-Roaming Horses and Burros Act of 1971.
IV. 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 and livestock in HMAs. The EIS fails to address this.
The EIS fails to address that FLPMA highlights 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). Indeed, public land grazing is a privilege and not a right, however the BLM is mandated by law to protect wild horses and burros, and to manage their designated habitat principally for their welfare.
Grazing on public lands is a privilege, not a right. See 43 U.S.C. § 315b & 16 (1934 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).
The EIS fails to reflect these priorities and legal requirements.
V. 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, grazing is a privilege that can be taken away to regardless of the reason (whether to protect the health of the range or even the welfare of 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.
Indeed, 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 rescinded. It is in no way an entitlement. BLM can and should reevaluate livestock grazing, it’s impact on the range, and rescind permits when necessary, to protect the welfare of wild horses.
VI. 43 C.F.R. 4710 Management Considerations
The EIS fails to consider the BLM authority to temporarily or permanently reduce or eliminate livestock grazing from the public lands in the HMAs pursuant to 43 C.F.R. 4710.5(a). This regulation allows the BLM to temporarily or permanently close a public land area to livestock grazing, "If necessary, to provide habitat for wild horses or burros…” The BLM has the discretion to implement this either temporarily or permanently and this action is available whether or not there is an emergency.
The EIS fails to consider utilizing 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.
VII. 43 C.F.R. 4720.2 Removal of Excess Horses from Private Lands
“Upon written request from the private landowner to any representative of the Bureau of Land Management, the authorized officer shall remove stray wild horses and burros from private lands as soon as practicable. … The request shall indicate the numbers of wild horses or burros, the date(s) the animals were on the land, legal description of the private land, and any special conditions that should be considered in the gathering plan.”
The EIS fails to disclose if BLM has received any written requests from private landowners for the removal of wild horses from their land. The Consent Decree with the RSGA, and RSGA-instigated litigation against the BLM, is the onlyreference to private landowners. Yet, the RSGA-owned lands represent only a portion of all privately-owned lands in the checkerboard.
The EIS must disclose if the primary private-property owner has, in fact, submitted a request, as required by statute, to remove wild horses from private lands. The EIS fails to adhere to 43 CFR 4720. All written requests must be disclosed and included in the appendix should a final EIS be issued.
VIII. 43 CFR 4700.0-6 Policy
The BLM statute 43 CFR 4700.0-6 clearly establishes the policies for the agency’s management of wild horses. The EIS fails to adhere to these policies by proposing to sterilize an entire population of wild horses while also zeroing out, or eliminating, all wild horses from three HMAs and a portion of the Adobe Town HMA.
43 CFR 4700.0-6 states:
“(a) Wild horses and burros shall be managed as self-sustaining populations of healthy animals in balance with other uses and the productive capacity of their habitat.
(b) Wild horses and burros shall be considered comparably with other resource values in the formulation of land use plans.
(c) Management activities affecting wild horses and burros shall be undertaken with the goal of maintaining free-roaming behavior.”
The EIS fails to adhere to 43 CFR 4700.06(a) since a sterilized population will no longer be “managed as self-sustaining populations of healthy animals…” The statute specifically refers to “populations” because it is understood there are many populations of wild horses managed by the BLM – all wild horses do not and cannot be considered to constitute one metapopulation.
The EIS Fails to adhere to 43 CFR 4700.06(c) since the management activity to sterilize the White Mountain wild horse population will no longer “maintain[ing] free-roaming behavior.”
The EIS fails to adhere to 43 CFR 4700.06(b) given the proposal to zero-out all wild horses while allowing livestock grazing to continue and possibly increase after all horses are removed. The statue specifically states horses “shall be considered comparable with other resource values in the formulation of land use plans.”
The BLM is not currently treating the wild horses in Great Divide Basin, Salt Wells, and Adobe Town HMAs in a “comparable” manner as the agency treats livestock that graze in the same areas. This is demonstrated in the proposed removal of horses while no consideration has apparently been given to removal of livestock.
Given the disparity of allocation of AUMs (Attachments 9 and 10) within the above-mentioned HMAs, the BLM is already in violation of this statute.
IX. Preserving and Protecting Natural Behaviors
The NAS determined "preserving natural behaviors is an important criterion" for wild horse management. Therefore, the following should be precluded from management actions:
· sex ratio skewing which causes stallion aggression due to the unnatural ratio of males to females;
· castration, ovariectomy and other surgical sterilization that alters an animal's ability to produce natural hormones; and
· any fertility control (e.g. Gonacon) 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. Wild behaviors are the basis for the rich and complex natural social structure of wild horses.
A. Castration/Gelding
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.” p123
“A potential disadvantage of both surgical and chemical castration is loss of testosterone and consequent reduction in or complete loss of male-type behaviors necessary for maintenance of social organization, band integrity, and expression of a natural behavior repertoire.” p142
“The very essence of the wild horse, that is, what makes it a wild horse, is the social organization and social behaviors.Geldings (castrated male horses) no longer exhibit the natural behaviors of non-castrated stallions. We know this to be true from hundreds of years of experience with gelded domestic horses. Furthermore, gelded stallions will not keep their bands together, which is an integral part of a viable herd. These social dynamics were molded by millions of years of evolution, and will be destroyed if the BLM returns castrated horses to the HMAs … Castrating horses will effectively remove the biological and physiological controls that prompt these stallions to behave like wild horses. This will negatively impact the place of the horse in the social order of the band and the herd.” (emphasis added) – Dr. Jay Kirkpatrick, wildlife reproductive biologist, Science and Conservation Center, Zoo Montana. Dr. Kirkpatrick explains that altering natural hormone production through castration essentially changes how that animal feels and behaves.
BLM has claimed that castration does not alter the natural behaviors of stallions. This is patently false, as explained by renowned biologist Dr, Kirkpatrick above. Further, BLM refutes its own claim by citing “anecdotal” information regarding returning castrated stallions to the range stating, “Once released, anecdotal information indicates geldingswould be expected to form bachelor bands.” A true stallion has the biological imperative to claim mares and reproduce. If geldings are expected to only “form bachelor bands,” this is an enormous departure from the natural social behavior of a wild stallion. Thus, BLM contradicts itself.
Deciding which males will become permanent bachelors and not contribute to the gene pool of the herd is indeed altering natural behaviors. To draw a parallel, while a human male may choose to stay single and/or not have children, this is very different from forcibly castrating him. A castrated male, like a gelding, loses all sexual hormone production, which intrinsically and definitively changes his behavior for the rest of his life.
Castration is performed in domestic settings largely to alter the horse’s natural behaviors and to make him more docile and manageable – to make him a lifelong bachelor without stallion behaviors. Gelding destroys natural stallion drives -- not just breeding behaviors but other ritualistic social behaviors as well. These behaviors are essential for the social hierarchy of the herd and each family band to remain intact. Most stallions do not naturally remain in bachelor bands for life.
Bruce Nock, Ph.D., of Washington University School of Medicine, an expert in the physiological effects of stress, states that gelding may compromise a horse’s ability to survive in the rugged and extreme natural environment:
Gelding (removing a horse’s testes) will have irreversible effects on both the individual horse and the herd. A gelded horse does not behave as a “wild” or “free-roaming” horse. . . It decreases muscle mass and strength, reduces bone density, and increases frailty. These deficits put the horse at a significant disadvantage on the range in terms of survival. A gelding will still have to compete with intact stallions for resources. His smaller size and strength, however, will not only put him at a competitive disadvantage, it increases the likelihood that agonistic encounters with intact stallions will result in severe injuries.
The compromised physical capacities that accompany gelding are likely to endanger castrated horses in a number of ways. In addition to undermining their ability to compete with intact stallions, it may diminish their ability to traverse the harsh terrain and great distances normally travelled to acquire food and water. This would jeopardize their survival particularly during challenging weather conditions, like droughts or heavy snow storms. A limited geographical home range is also likely to deplete local resources and negatively impact the ecological system as a whole. To survive in the wild, a horse must be able to achieve a certain fitness level that may be impossible to attain once the animal is castrated. In my professional opinion, releasing a castrated horse into a wild herd is an inhumane management approach that certainly does not “protect” or “help preserve” wild horses in any sense of the word.
B. Ovariectomy/Spaying
The Cloud Foundation has documented that mares – especially lead mares – play a critical role in wild horse natural behaviors and social structure. Mare hormone production would be altered through spaying/ovariectomy or use of drugs such as Gonacon which can literally shutdown or permanently alter a mares’ estrus cycles. The resulting changes to their natural behaviors may only be known on an individual basis.
Altering a mares’ hormones through spaying/ovariectomy could result in the reduction or complete loss of natural lead mare-type behaviors which are necessary for maintenance of social organization and band integrity. In fact, the impacts of sterilization on wild horses can be severe, affecting their behavior, their physiology and thus their ability to survive. This undoubtedly impacts – and possibly compromises -- their family band, and potentially the herd as a whole.
We know that mammal behaviors, especially social behaviors, are related to hormone production. Therefore, it’s understandable that shutting down the production of certain hormones would likely cause the loss of natural behaviors essential to “wild horses” – including stallion behaviors for winning and keeping mares, lead-mare behaviors necessary for maintenance of social organization, band integrity, and expression of a repertoire of natural behaviors.
Additionally, wild horses and burros living in extreme environments rely on their natural instincts for survival -- destroying natural behaviors may actually put the lives of these animals at risk.
Dr. Jay Kirkpatrick, director of the Science and Conservation Center in Montana and internationally recognized expert on wildlife reproduction and biology summarized:
“Gelded stallions will not keep their bands together. Ovariectomized mares will not
display estrous behavior. The very essence of the wild horse, that is, what makes it a wild horse, is the social organization and social behaviors, which in turn were molded by
millions of years of evolution. Gelding/spaying will take exactly that away and then you
no longer have wild horses... Sterilization is incompatible with the mandate to protect
and retain the free-roaming nature of wild horses.” (emphasis added)
“Wild horses typically live in reproductive bands consisting of adult mares, their dependent offspring, and one or more stallions who lives revolve around trying to protect mares from harassment by other stallions and securing exclusive reproductive access to the mares for themselves; …Mares, meanwhile, simultaneously bond to one another and compete with each other for access to water, food, and other resources for themselves and their foals. Neither geldings nor spayed mares participate in these fundamental processes of wild horse behavior.” (emphasis added) – Allen T. Rutberg, Ph. D., Assistant Director, Center for Animals and Public Policy, Tufts-Cummings School of Veterinary Medicine.
The NAS 2013 on ovariectomizing wild mares:
“Any of the methods [castration, ovariectomy and GnRH products] described may also affect behavior. Because all methods affect sexual function in some way, changes in expression of sexual and social behavior should be considered. The ideal method would not eliminate sexual behavior or change social structure substantially. Castration, ovariectomy, and the GnRH products (vaccines and agonists) eliminate or substantially reduce steroid hormone production and so have a potentially profound effect on the expression of sexual behavior. In contrast, vasectomy and the PZP vaccines result in a prolonged breeding season, with increased sexual interaction, because females continue to undergo estrous cycles but fail to conceive.” p149 (emphasis added)
“Typical side effects associated with ovariectomy in many species include decreased activity and weight gain.” p115
Years of conducting ovariectomies in domestic mares shows that behavioral change (referred to as "improvement" for domestic mares because natural estrus-related behaviors are deemed in the domestic setting as undesirable) is seen in 83% of the mares who underwent surgery (Attachment 3).
In addition to the behavioral changes, the reduction of estrus and alteration of hormones undeniably has an impact on the physiology of any mammal. The EIS fails to consider and analyze available research that outlines the hormonal changes and the implication that has on bone density and other physiological implications. Ovariectomy causes premature menopause and, in turn, has a cascading impact on other organ systems, bodily functions and structural conditions (including bone conditions). (Attachment 4).
We have serious concerns about the physiological and psychological impacts that result from sterilization/ovariectomy and the related conditions and implications – both direct and indirect. The EIS must consider these detrimental effects on the horses:
· Changes to the horse’s diestrus phase – the impact to hormone production or organ/gland functions which directly and indirectly impact the horse’s physiology and psychology.
· Changes to the horse’s estrous phase – the impacts to hormone production or organ/gland functions and the direct and indirect resulting impacts to glands, organs, tissues, production of hormones and all possible impacts to the horse’s physiology and psychology.
· Changes to the horse’s production of progesterone – the impacts to hormone production or organ/gland functions and the direct and indirect resulting impacts to glands, organs, tissues, production of hormones and all possible impacts to the horse’s physiology and psychology.
· Changes to the horse’s pituitary gland or the function of the pituitary gland and all resulting impacts to hormone production – the direct and indirect resulting impacts to glands, organs, tissues, production of hormones and all resulting impacts to the horse’s physiology and psychology.
· Changes to the horse’s production of estrogen – the impact to hormone production or organ/gland functions, including all direct and indirect resulting impacts to glands, organs, tissues, production of hormones and all possible impacts to the horse’s physiology and psychology.
· Changes to the horse’s production of gonadal hormones – the impacts to hormone production or organ/gland functions, including all direct and indirect resulting impacts to glands, organs, tissues, production of hormones and all possible impacts to the horse’s physiology and psychology.
· Changes to the horse’s serotonin pathways, catecholamine neurons and the basal forebrain cholinergic system.
· Changes to ovarian steroids.
· Changes to cardiovascular health and immune function.
The BLM must base wild horse management decisions on science, not convenience. The science clearly shows that removing the ovaries has long-term, negative effects on wild horses’ physiology and psychology and in turn on social behaviors. The EIS fails to provide any supporting science or data to support the extreme permanent management method of ovariectomizing mares and gelding stallions.
C. Gonacon and Other Drugs that Shutdown Natural Hormone Production
The NAS stated in its 2016 Report, “Thus, to the extent that GonaCon preserves natural behavior patterns while effectively preventing reproduction, it is a promising candidate as a female-directed fertility-control method. However, further studies of its behavioral effects are needed.” p. 149 (emphasis added)
We now know that GonaCon does not preserve natural behaviors because it explicitly shuts down a mare’s estrus cycle.
The Cloud Foundation cannot support any management strategy [Castration (gelding), ovariectomy (spaying), and drugs or vaccines (e.g. Gonacon)] that shuts down the natural production of wild horse hormones. The changes to wild horses’ natural behaviors, which include the following, could be catastrophic to the health of the herd:
· Behavioral disruption of social structure and band integrity.
· Physiological disruption of hormones that play a vital role in the survival ability in the harsh and rugged wild environments.
· Environmental impacts caused by sterilization procedures which may alter the way horses utilize the land.
The EIS fails to address that the Act requires BLM to manage wild horses and burros
in a manner that protects their wild and free-roaming behavior. While Section 3(b)(1) as
modified by the Public Rangelands Improvement Act of 1978, outlines options for
population management that include sterilization, it is to be read in conjunction with and not in substitute for the overarching intent of the Act: to protect wild horses.
In addition, the 1971 Act directs BLM to work with independent experts, such as the NAS, which has clearly stated the importance of preserving natural wild behaviors in all management actions:
“A potential disadvantage of both surgical and chemical castration is loss of testosterone and consequent reduction in or complete loss of male-type behaviors necessary for maintenance of social organization, band integrity, and expression of a natural behavior repertoire.”
The EIS fails to provide material scientific evidence when considering the impacts of converting a viable wild horse population to non-reproducing.
D. Sex Ratio Skewing
The EIS fails to provide any scientific information or data to support the artificial skewing of the sex ratio in these herds. The EIS also does not specify the proposed equation for the skewed ratios.
The natural sex ratios of adult wild horse herds are nearly always skewed toward females. The main reasons for this: differential survival of adult males and females and foal sex ratios (Garrott and Taylor 1990). Higher mortality in male horses may be due to injuries acquired during fights for mates or under conditions of food shortage and being unable to obtain sufficient nutrients since male horses naturally need more nutrients than females (D. Siniff, J.Tester, and G. McMahon 1986).
Creating unnatural sex ratios increases aggression among males and causes stress and social disruption. It can create dangerous situations for females, who may be subject to being repeatedly raped by stallions. I have footage of a burro jenny being repeatedly raped by jacks specifically as a result of this inhumane management practice.
Sex ratio skewing could also have a devastating impact on individual horses and family bands, as band stallions must remain ever vigilant and ready to fight bachelors who aim to steal their mares and break up the family unit. Far from being an acceptable management strategy, sex-ratio skewing is, in fact, mismanagement. This dangerous strategy endangers the health of the animals in BLM’s care and is a clear abdication of BLM’s responsibility to preserve and protect them.
The BLM Beatys Butte EA DR FONSI 2009[4] (Attachment 5) states,
"If selection criteria leave more studs than mares, band size would be expected to
decrease, competition for mares would be expected to increase, recruitment age for
reproduction among mares would be expected to decline, and size and number of
bachelor bands would be expected to increase. . . ."
The BLM EA for the South Steens Wild Horse Gather[5] (Attachment 6) states,
“Skewing the sex ratio of stallions v. mares would result in a destabilization of the
band (stallion, mare and foal) structure moving it from five to six animals to three
animals. Social band structure will be lost resulting in combative turmoil as surplus
stallions attack a band stallion trying to capture his mare. This could result in the
foal being either killed or lost. The mare and foal will not be allowed to feed or water
naturally as the stallion tries to keep them away from the bachelor bands of stallions,
resulting in stress to the mare during her lactation condition.”
X. Cumulative Impacts
The EIS fails to consider the cumulative impact of the Proposed Action in relation to BLM Wyoming’s elimination of wild horses from other public lands in the state. Fifty percent (50%) of the original Congressionally designated wild horse habitat in the state of Wyoming has been zeroed out or taken away from wild horses for their use. Yet, the BLM continues to permit livestock grazing in these same areas.
The Preferred Alternative proposes to reduce by another 43% the public lands available to wild horses in the state. The cumulative impact of the Preferred Alternative results in the BLM eliminating 71% of all public lands originally designated by Congress for wild horse use in the state of Wyoming. The proposed removal of wild horses from 1,554,282 acres of public lands represents removing wild horses from 6% of all public lands where BLM currently manages wild horses and burros.
Currently, BLM manages wild horses and burros on only 64% of the original public lands identified by Congress for wild horse and burro habitat. That means, since 1971, the BLM has cumulatively reduced wild horse and burro habitat by 37%. BLM eliminated wild horses and burros from more than 1 of every 3 acres of public lands which Congress designated “principally” for wild horse and burro use. (Attachment 7) The EIS fails to consider the cumulative impacts of the Preferred Alternative on the wild horses throughout the state and nationally.
XI. EIS Fails to Consider Alternatives
The EIS fails to consider alternatives that would consolidate private and public lands in Checkerboard areas to address the private property and permittee complaints calling for the removal of wild horses. The BLM can use “land exchanges with other landowners to improve land management, consolidate ownership, and protect environmentally sensitive areas…the BLM can acquire other lands with important recreation, conservation, scenic, cultural and other resource uses. Land exchanges also allow the BLM to reposition or consolidate lands into more manageable units…” (BLM Lands and Realty – Sales, R&PP and Exchanges; The BLM Lands Exchange Handbook 2-294) Land swaps have been carried out
The EIS does not consider a fair and equitable resource allocation for wild horses. BLM must increase horse AUMs to be in conformance with the Act (which requires wild horses are the principal user of their range.) The EIS should include an AUM exchange alternative – to increase livestock grazing/increase wild horse AML (AUM for AUM) on certain Checkerboard lands – and do the inverse in other Checkerboard lands. This equitable exchange of AUMs should not increase livestock AUMs, but rather redistribute all AUMs equitably, with wild horses as the primary user in their habitat.
XII. Animal Welfare
The EIS fails to adequately address the protection of wild horses during the proposed roundup. The BLM’s “Comprehensive Animal Welfare Program (CAWP)” is woefully inadequate in establishing humane standards for the treatment of wild horses and burros during a roundup. It must go further in its protection of these animals.
If helicopters are to be used as a part of management, the plan must consider, analyze and implement humane standards as outlined in the recommendations below. These recommendations are necessary to reduce potential stress and harm to the wild horses during a roundup.
1. Limit the distance wild horses may be chased by a helicopter to no more than five (5) miles.
2. Require that the helicopter not chase/move wild horses at a pace that exceeds the natural rate of movement of that specific animal. Every effort should be made to keep older, sick and young foals 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.
3. 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.
The EIS must consider and implement the following with regards to CAWP:
· Improved public observation of all agency actions. There is significant public interest in the agency’s management of wild horses and burros. The NAS specifically recommended to the BLM to improve the transparency of its management of the Wild Horse and Burro Program (Attachment 1). The treatment of the wild horses and agency transparency are paramount.
· 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 for which the owners will not give permission for public observation of activities.
· Real-time cameras with GPS should 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 that motorized vehicle usage has on wild horses and the environment.
· Real-time cameras should be installed on any traps, corrals and temporary holding pens, again, so that BLM personnel, public and media can monitor the entire roundup operation and treatment of the horses.
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 8)
Video cameras will improve the transparency of the operations and enable the BLM and public to monitor the direct impact motorized vehicle usage has on wild horses and the environment. TCF would be happy to provide technical assistance and financial assistance to establish these real-time cameras as described above.
XIII. Conclusion
As the BLM continues to permit and accelerate the use of our public lands in Wyoming for the livestock as well as oil and gas industries (Attachments11 and 12), the agency would leave America’s wild horses with less than 30% of the original public lands in Wyoming which were designated principally for wild horses.
The 2013 Consent Decree with the Rock Springs Grazing Association, grazing permittee in the area, is nothing more than a backroom deal cut by the pro-livestock BLM and the livestock industry. Internal documents show the BLM has colluded with the livestock industry for years to come up with this Extermination Plan which is opposed by the majority of Americans.
I and TCF’s hundreds of thousands of supporters, will be irreversibly harmed if the BLM proceeds with reducing or eliminating horses from any of the above-mentioned HMAs or if the BLM destroys the natural behaviors of any horses through sterilization.
It’s time for the BLM to listen to the American people, stop pitting American against American, and create win-win solutions so advocates and ranchers can work together. Please drop this Wyoming Wild Horse Extermination plan and return wild horses to the 50% of zeroed out Herd Areas in the state.
Ginger Kathrens
Director, The Cloud Foundation
Attachments:
1. Wyoming Is a Fence-Out State
2. “Using Science to Improve the BLM Wild Horse and Burro Program: A Way Forward,”
National Academy of Sciences, June 2013.
3. “Clients' Perspectives on the Effects of Laparoscopic Ovariectomy on Equine Behavior and
Medical Problems,” Journal of Equine Veterinary Science, Oct 2007, Vol 27, Issue10, p.435-8
4. “Menopause … and Wild Horse Management,” Bruce Nock, Ph.D., Washington University
School of Medicine, Depts of Psychiatry and of Anatomy and Neurobiology, St. Louis, MO.
5. BLM Beatys Butte EA DR FONSI 2009
6. BLM EA for the South Steens Wild Horse Gather
7. BLM WY Herd Area, Herd Management Area statistics, 2019
8. Temple Grandin letter dated 2012
9. BLM Rawlins FO AUMs allocated for livestock
10. BLM Rock Springs FO AUMs allocated for livestock
11. TCF public comments 2012
12. ISPMB public comments 2012
13. CARTER: Updating the Animal Unit Month, 2007
14. Cattle Info
15: Factors Influencing Selection of Resting Sites by Cattle on Shortgrass Steppe
[1] 11-30-115. Unlawful killing of wild horses.
(a) For purposes of this section "wild horse" means a horse, mare, filly or colt which is unbranded and unclaimed and lives on state or public land.
(b) Any person, without legal justification, who willfully and maliciously kills a
wild horse is guilty of a misdemeanor punishable by a fine of not more than
seven hundred fifty dollars ($750.00), imprisonment for not more than six (6), months or both.
[2] 43 CFR 4700.0-6 Policy (a) Wild horses and burros shall be managed as self-sustaining populations of healthy animals in balance with other uses and the productive capacity of their habitat. (b) Wild horses and burros shall be considered comparably with other resource values in the formulation of land use plans. (c) Management activities affecting wild horses and burros shall be undertaken with the goal of maintaining free-roaming behavior.
[3] Department of the Interior and related agencies appropriations for fiscal year 1984 hearings before a subcommittee of the Committee on Appropriations, United States Senate, Ninety-eighth Congress, first session · Part 1
[4] http://www.blm.gov/or/districts/lakeview/plans/files/Revised_BButte_EA_FONSI_DR_09012009.pdf page 33
[5] http://www.blm.gov/or/districts/burns/plans/files/SSteensGatherEAandFONSIFinal.pdf, page 41