Wednesday, April 21, 2010

Calico: Past, Present & Future II

This is the second in a series of articles that attempts to disclose some of the known issues playing behind the scenes in the Calico Complex and beyond…

Calico Complex Wild Horse Captures - 2005
BLM Winnemucca Field Office Photo Files

When BLM released the first environmental assessment (EA) to remove wild horses from the Calico Complex in late October 2009, they didn’t even bother to address – much less try to explain - how the wild horse population shot up 500%, increasing from 575 estimated horses still remaining after the early 2005 round up (and all released mares treated with fertility control drugs) to a whopping 3,000+ in just five years.

Eight to ten thousand public comments later, many of which questioned how BLMs population estimates could even be remotely correct, BLM was finally compelled to at least GUESS how this happened. Specifically, the Final round up EA stated:

The discrepancy between the expected 2008 wild horse population and the actual wild horse count in March 2008 may be due to several factors. First, inventory data used to estimate excess wild horse population prior to the 2004-2005 gather was potentially incomplete due to poor weather conditions during the population inventory, which could have contributed to horses being missed and a population estimate that was lower than actual. Second, it is likely that more horses than anticipated were actually left in the Complex post-gather in 2005 due to the under-counting of horses prior to the gather. Third, movement has been documented between the Complex and HMAs administered by the BLM Surprise Field Office, CA and the Sheldon Wildlife Refuge. Data compiled by the Surprise Field Office during the March 2008 inventory of those HMAs also revealed higher populations than anticipated in the adjoining HMAs. Overall, the population levels of the Surprise Field Office HMAs exceeded natural recruitment by more than 400 wild horses (representing approximately 80% more wild horses than anticipated).”

A BLM footnote also stated: “10) The March 2008 population inventory included both the Calico Complex HMAs and HMAs managed by BLM’s Surprise Field Office in California. The horses counted in the Complex were separate and distinct from those simultaneously counted within the adjoining Surprise Field Office managed HMAs.”

While In Defense of Animals (IDA) and attorney William Spriggs filed a request for an Injunction in federal court attempting to stop the Calico Complex round up, another legal challenge was quietly filed by The Cloud Foundation, Bob Bauer and myself with the Interior Board of Land of Appeals (IBLA).

It arrived on the BLM’s Winnemucca Field Offices desk on Christmas Eve and targeted a completely different set of legal arguments than what IDA and Mr. Spriggs presented to the federal judge in their now pending lawsuit.

Specifically, this legal appeal focused on:

a) The wild horse AMLs set so long ago had no rangeland or monitoring data to support them – including recent court testimony from their own Wild Horse & Burro Specialist stating “monitoring objectives were being met” at the reported “high” population levels and therefore, the wild horses could not be deemed "excessive" - or at least not nearly that many of them! (for more detailed information on this part of the Calico Complex issues, Click Here to read, "Calico: Past, Present and Future, Part I – The Past") and,

b) That BLM had presented so much new information in their Final EA in their attempts to explain away all the questions, (which only raised more questions) that requirements of the National Environmental Protection Act (NEPA) mandated BLM must make an attempt to reasonably answer these questions by preparing an Environmental Impact Statement (EIS) before they were allowed to proceed.

Wranglers Bring In a Separated Foal From Its Mother
Calico Complex Capture, Black Rock Range West - 2005
BLM Winnemucca Field Office Photo Files

An agency must prepare an EIS if the environmental effects of a proposed action are highly uncertain. See Blue Mtns., 161 F.3d at 1213. Preparation of an EIS is mandated where uncertainty may be resolved by further collection of data, see id. at 1213-14 (lack of supporting data and cursory treatment of environmental effects in EA does not support refusal to produce EIS); or where the collection of such data may prevent “speculation on potential . . . effects. The purpose of an EIS is to obviate the need for speculation by insuring that available data are gathered and analyzed prior to the implementation of the proposed action.” Sierra Club v. U.S. Forest Serv., 843 F.2d 1190, 1195 (9th Cir. 1988).”

As a result of what BLM published in the Calico Complex Final EA, some of these new "unknowns" now include:

> The possibility that wild horses from five additional Herd Management Areas (HMAs) managed from the Surprise Field Office, which are Bitner, Massacre Lakes, High Rock, Wall Canyon and Fox Hog HMAs AND the Sheldon National Wildlife Refuge, were affected by the round up - since BLM couldn’t explain where exactly all the wild horses had come from.

Would the Calico round up inadvertently gut migrating wild horses from these areas too and leave populations so low they might now be at risk of crashing or left incapable of being self-sustaining herds as required by law?

> BLM added almost a million more acres potentially affected by the removal operations than they had originally projected or told the public about (and the corresponding wild horse populations), which was never analyzed at all.

> BLM has for the first time ever, suddenly stated that wild horses may be moving back and forth between “protected” BLM lands and the “non-protected lands” of Sheldon managed by U.S. Fish and Wildlife Service. Unlike BLM, USFWS is not bound by the Wild Free-Roaming Horse and Burro Act. Their policies regarding “feral” horses allows for, “§ 30.12 Disposition of feral animals; Feral animals taken on wildlife refuge areas may be disposed of by sale on the open market, gift, loan to public or private institutions for specific purposes, and as otherwise provided in section 401 of the act of June 15, 1935 (49 Stat. 383, 16 U.S.C. 715s)”

If what BLM was suddenly claiming about “migrating horses” between the Sheldon Refuge and BLM HMA’s is true, how many BLM wild horses have been or will be rounded up in the future when they are on non-protected land and “disposed of” through this feral animal policy?

Wranglers Bring In a Separated Foal From Its Mother
Calico Complex Capture, Black Rock Range West - 2005
BLM Winnemucca Field Office Photo Files

On top of this, large-scale plans are currently in the works throughout this entire area. Due to the questions BLM themselves have now raised, getting answers before they take any further action has become critical. Some of the publicly known plans include:

> U.S. Fish & Wildlife Services Comprehensive Conservation Plan (CCP) for the Sheldon National Wildlife Refuge scheduled for release in 2010, which will address all future management plans on wild horses and burros residing in the Refuge.

> The Ruby Pipeline Project, which has already been asked by the Federal Regulatory Commission to discuss how they propose to address appropriate mitigation measures to protect wild horse and burro populations within the area.

> The establishment of Appropriate Management Levels for wild horses in the Massacre Lakes HMA managed by the Surprise Field Office, also included as one of the six wild horse areas that might have been affected by wild horses “free-roaming behaviors” and the Calico Complex round ups.

But of course, BLM wasn’t worried about having to answer any of these questions because the Interior Board of Land Appeals (IBLA) had their back!

After BLM received our Appeal, they submitted a request for an extension to file their response, which IBLA finally granted to them – but not until AFTER the required 10 day deadline had passed!

Turns out, the legal requirements the Department of the Interior has set for itself allow for zero penalties if they fail to meet the deadlines; that only applies to the public. My appeal of the Soldier Meadows Livestock Grazing Decision back in 2008 was thrown out by IBLA because it arrived on the judge’s desk one day late.

When IBLA finally did rule in favor of BLM's decision to remove the Calico wild horses almost two months later, despite the fact that we filed an Expedited Emergency Request for a Stay, the judge cited the issue of granting a Stay as “moot” since the round ups had already begun and coincidentally, the judge issued his decision the day before BLM announced the round ups were now over. Hmmm...

What was taking IBLA so long to rule on the case was, the BLMs attorney submitted an affidavit from Winnemucca Field Office employee Amanda Deforest, who swore under penalty of perjury that fellow appellant, Bob Bauer, never submitted comments to BLM about the Calico Round Up.

So we had to submit extensive evidence time and time again to prove Bob did submit comments, which IBLA finally ruled in our favor and agreed, yes, Bob had submitted comments.

I guess that was the only victory IBLA would allow “we, the people” and never mind that Ms. DeForest lied under oath - as we all know, there seems to be no consequences for what BLM says or does. What would have happened if we could not have proved beyond a shadow of a doubt that Bob did indeed submit multiple comments and phone calls to BLM? To learn more about this phase of the legal battle, Click Here.

To back up for a moment, I want to explain another legal ruling IBLA slapped me with early on in my “Wild Horse & Burro” legal challenge adventures - because it has relevance.

One time, I tried to file an appeal of a round up before BLM had issued a Final Decision as, just like the Calico case, it was a god-awful mess right out of the gate. IBLA shot back the public cannot appeal a decision if a decision hasn’t been issued and threw it out. In retrospect, I have to agree with this as it makes sense - because no one can know what BLM is going to actually do until they do it – anything else is just speculative. So, with that former ruling in mind, check out what they did in the Calico case…

First, BLM only allowed the public to comment on the PRELIMINARY EA.

However, it was the Final EA BLM added all kinds of speculative stuff about where the wild horses may have come from and all these other areas that may be affected by the round up. Except, NO PUBLIC COMMENTS WERE ALLOWED ON THE FINAL EA.

Then, while IBLA finally ruled that Bob did indeed have a right to appeal because we proved he submitted comments, the judge limited his considerations and based his decision ONLY on the issues Bob raised in his public comments during the Preliminary EA – not anything that was submitted in the appeal after BLM issued their Final Decision.

The judge refused to address any of the questions raised in the appeal about what BLM had published in the Final EA - which never allowed any public comments – and the judge justified these limitations because Bob’s public comments never addressed those issues.

Why didn’t Bob’s comments ever address those issues? Because BLM only publicly published those issues AFTER the public comment period had closed on the Prelimary EA but never allowed any public comments on the Final EA.

Furthermore, IBLA refused to acknowledge or address the full scope of the appeal because it was collectively filed, even though Bob's signature was on it, Bob filed no separate appeal of his own, and Bob submitted extensive follow up evidence, affidavits and declarations during the appeal process.

Obviously, the judge accepted the appeal as Bob's because he didn't throw it out. Yet while the judge acknowledged Bob did file an appeal (after all, what other document could the judge rule on?), the judge simultaneously excluded almost everything presented in the appeal and only addressed the statements submitted by Bob to BLM during the Preliminary EA's public comment process.

So bascially, "we, the people", can't appeal a decision before it is issued and we can't appeal any issue that we haven't already submitted comments to BLM on. As a result, BLM can present any new information they want to "after the fact" and by just refusing to allow the public the opportunity to comment, they get to circumvent any legal challenge - because no one could possibly comment on information they didn't know about!

Finally, the judge refused to consider the appeal in context of the National Environmental Protection Act’s mandates and to paraphrase here, ruled that once BLM stated the wild horses were excessive, there were no further requirements they had to adhere too. Pretty sweet, huh?

Close Up: Wranglers Bring In A Separated Foal From Its Mother
Calico Complex Capture, Black Rock Range West - 2005
BLM Winnemucca Field Office Photo Files

Except, BLM and U.S. Fish & Wildlife Service might now have a bit of a problem...

Even if IBLA, which is an Administrative Court under the Department of the Interior, was able to squash this information and refused to demand a sincere NEPA review this time, a federal judge might not see eye to eye with IBLA’s unconditional support for BLM’s actions sometime in the future.

The agencies also know they are in the clear as far as the In Defense of Animals and Mr. Spriggs lawsuit because the currently pending legal challenge never touches these issues (at least this time).

But while BLM has been able to string the public and courts along for 27 years with promises of monitoring, evaluations, and still not having a clue about what is really going on with the wild horses and burros throughout the entire area – with a large stack of evidence now assembled to prove this - BLM is running out of excuses and out of time.

So with plenty of opportunities for legal challenges looming on the immediate horizon, such as the Ruby Pipeline, the soon to be released US Fish & Wildlife Services Comprehensive Conservation Plan and issuing AMLs for the Massacre Lakes HMA, what can the agencies do to try and cover their butts now and are they scrambling to come up with a plan to do just that?


MorganG said...

Once again any dealings with BLM make my head spin. I think they figure if they throw enough nonsense at you that you will be overwhelmed and go away--fat chance. As far as not being able to comment on the Final EA that to me is like the prosecution holding out evidence to the defense and judges love to jump all over attorneys for these monkey shines, in fact it gets mistrials and convictions overturned. Thank you for following through on this--their day has got to come.

MorganLvr said...

I agree - their day has GOT to come! I just hope it comes before they exterminate the wild horses.