August 11, 2011 Lance Porter, Field Manager Bureau of Land Management Rock Springs Field Office 280 Highway

191 North Rock Springs, WY 82901-3447 Via Email: Dear Mr. Porter, This letter is an official request on behalf of the American Wild Horse Preservation Campaign for reconsideration of your “Second Modified Decision Record” for the White Mountain and Little Colorado Wild Horse Gather and an official protest of your failure to give the public a 30day period for appeal of this decision document. AWHPC is dedicated to preserving the American wild horse in viable free-roaming herds for generations to come, as part of our national heritage. Our grassroots efforts are supported by a coalition of over 45 historic preservation, conservation, horse advocacy and animal welfare organizations.

I. Lack of Adequate Appeal Period for Decision Record
On August 4, 2011, you issued the Second Modified Decision Record for the White Mountain – Little Colorado Herd Management Areas Wild Horse Gather (WY-040-EA11-124). This document represents the third change in plans for the proposed action since the initial decision record was released on June 13, 2011. The action described in the new “Second Modified Decision Record” is completely different than the action implemented by either the “Modified Decision Record” or the “Decision Record.” As such, the Second Modified Decision Record must be accompanied by a 31 day period prior to gather implementation during which the public can “participate in and request administrative review” of the new gather decision. [Washington Office Instruction Memorandum (IM) No. 2010-130]

American Wild Horse Preservation Campaign, P.O. Box 1048, Hillsborough, NC 27278

In a telephone conversation today with Serena Baker, Public Affairs Specialist for the BLM’s High Desert District Office, AWHPC was informed that the start date for the White Mountain/Little Colorado gather is now Saturday August 20, 2011. Not only does this start date fail to provide the required 31 day appeal period, but also it is 11 days earlier than the September 1, 2011 start date indicated in the “Second Modified Decision.” In addition, as recently as Friday, August 5, 2011, your attorneys with the Department of Justice assured U.S. District Court Judge Amy Berman Jackson by telephone that the roundup would not begin until September 1, 2011. The “Second Modified Decision Record” erroneously states that, because this decision document is implementing the proposed action in the Environmental Assessment, upon which the public had opportunity to comment, that the 31-day appeal period is not required in this situation. However, the public has never had the required 31 day period to appeal the action implemented by the “Second Modified Decision,” which as stated above is different from the action implemented by the “Modified Decision Record” as well as from the action implemented by the “Decision Record.” Therefore, AWHPC requests the 31-day period to appeal the “Second Modified Decision Record,” in order to have the time necessary to file an appeal of this decision record. This means that that the White Mountain/Little Colorado Herd Management Area wild horse roundup should begin no earlier than September 5, 2011 in order that to have the time ne. By this letter, I am copying BLM Director Bob Abbey, BLM Associate Director Ed Roberson as well as the White House Council on Environmental Quality, and I trust that these higher authorities will ensure that your field office complies with agency requirements regarding provision of an adequate appeal period for decision records issued for agency actions. Although the BLM has not afforded the public time to file a proper appeal, the remainder of this letter will present the reasons why we believe that BLM should reconsider its “Second Modified Decision” for the White Mountain/Little Colorado roundup.

II. BLM Cannot Legally Round Up and Remove Wild Horses from the White Mountain and Little Colorado Herd Management Areas
The Wild Free-Roaming Horses and Burros Act (“Wild Horse Act”) directs the Secretary of the Interior (the "Secretary") to "protect and manage wild free-roaming horses and burros as components of the public lands .... The Secretary shall manage horses and burros in a manner that is designed to achieve and maintain a thriving natural ecological balance on the public lands." 16 U.S.C. § 1333(a). All management activities shall be at the minimal feasible level ... in order to protect the natural ecological balance of all wildlife species which inhabit such lands, particularly endangered wildlife species. Id. The Act further requires BLM to "maintain a current inventory of wild free-roaming horses and burros on given areas of public lands," so that BLM can "make determinations as to whether and where an overpopulation exists and whether action should be taken to remove excess animals." 16 U.S.C. § 1333(b)(l). Upon determining that "an

overpopulation exists on a given area of the public lands and that action is necessary to remove excess animals, [the Secretary] shall immediately remove excess animals from the range so as to achieve appropriate management levels. ld. at (b)(2). The Wild Horse Act defines "excess animals" as wild free- roaming horses and burros "which must be removed from an area in order to preserve and maintain a thriving natural ecological balance and multiple-use relationship in that area." U.S.C. § 1332(1). In other words, excess animals are only those animals above the level necessary to "maintain a thriving natural ecological balance." Id. See also Dahl v. Clark, 600 F,Supp 585, 592 (D, Nev. 1984) (interpreting AML to mean the "optimum number" of wild horses which results in a thriving natural ecological balance and avoids a deterioration of the range); Animal Protection Institute of America, 109 IBLA 112 (June 7, 1989) (noting that the term AML is "synonymous with restoring the range to a thriving nat11ral ecological balance and protecting the range from deterioration"). A. The removal of wild horses from White Mountain and Little Colorado HMAs is not necessary to restore a thriving natural ecological balance (TNEB) nor will the removal of the horses achieve the goal of restoring TNEB. BLM's decision to roundup and remove wild horses from the White Mountain/Little Colorado HMAs violates the Wild Horse Act because the decision is based on an Appropriate Management Level (AML) that was established based not on restoring the range to a thriving natural ecological balance and protecting the range from deterioration, but instead on an AML that was established through an agreement between the livestock permittees, r ep r es en t e d b y t h e R o c k S p r i n g s G raz i n g A s s o ci at i o n and BLM. Because the AMLs for the White Mountain/Little Colorado HMAs are based on administrative convenience, rather than sound scientific principles, BLM cannot establish that the wild freeroaming horses within the White Mountain/Little Colorado HMAs are "excess animals" under the Wild Horse Act. Further, the removal of wild horses in excess of the illegally-determined AMLs will not restore a thriving natural ecological balance, as documented in the attached range report prepared by Bob Edwards, who was a range management specialist for 30 years with the BLM. Mr. Edwards visited the White Mountain/Little Colorado HMAs over a six-day period between July 30 and August 4, and his field review included documentation at 24 locations over both HMAs and also observations of numerous other areas. Mr. Edwards conclusions raise serious questions about the validity of data cited in the BLM’s Environmental Assessment on the White Mountain/Little Colorado wild horse roundup plan, and directly contradict the BLM’s conclusion that 696 wild horses must be removed from the area in order to restore the thriving natural ecological balance of the range. Mr. Edwards’ report concludes that: • The wild horses do not need to be removed in order to achieve the goal of achieving a thriving natural ecological balance, and

Removing the wild horses will not achieve that goal.

Mr. Edwards explains that “Removing a large percentage of the wild horses is not likely to result in an improvement of range condition since the percentage of forage allocated to wild horses is very small compared to the amount of forage allocated to livestock. (The forage allocation for wild horse use is only 2% to 3% of the total forage allocation for these HMAs.) Further, Mr. Edwards’ findings contradict data upon which BLM has relied in making its decision to remove wild horses from these HMAs. For example, Mr. Edwards visited the two utilization study areas cited in the EA on page 4 and 12. He reports: The E.A. focuses on utilization studies of two areas which are major use areas for wild horses. These are the water sources at Central Well and Buckhorn. For both areas, grazing becomes lighter the farther one moves away from them, which indicates that the area in not overstocked with wild horses. If forage amounts in the general area were lacking as implied by BLM, the grazing use would be heavy in areas extending far beyond 1 mile from the water source. Mr. Edwards also explains that, since at least one of these areas (Central Well) has evidence of recent cattle use as well as wild horse use, BLM is unable to distinguish impacts caused by livestock vs. impacts caused by wild horses, yet has attributed the damage in its entirety to wild horses. Mr. Edwards’ discussion with BLM have revealed the likelihood that BLM’s range management practices – not wild horse numbers – are resulting in moderate to heavy usage of these water areas. Specifically at issue is the BLM’s practice of allowing livestock permittees to turn off wells on BLM land in summer, when livestock are not grazing the range. Mr. Edwards explains: Information from the BLM indicates that there are well water sources in these HMAs which are turned on and off to accommodate livestock use. If true, this would reduce the number of water sources available for wild horse use in the summer months. . . . Limiting the number of water sources forces the wild horses to congregate in areas where water is available, and consequently increases the negative impact they are having on the range areas they are using. Making more water sources available would disperse the population of wild horses over a wider geographical area and decrease the amount of grazing use over the area. The overgrazed conditions near the water sources in the Central Well and Buckhorn areas focused on in the E.A. would likely improve if the BLM increased the number of water sources available to wild horses in the summer. In his report, Mr. Edwards concludes: There is no emergency situation in the area that would cause significant damage to the range or harm to the wild horses if they are not removed. The forage resources needed to support the wild horse population are more than adequate and the horses observed are in good condition.

The findings of this report – prepared by a range expert with a 30-year work experience at BLM, call into question the entire basis for BLM’s decision to remove 696 wild horses from the White Mountain and Little Colorado Herd Management Areas. Therefore, AWHPC calls for an immediate suspension of all plans to roundup wild horses from this area and reconsideration of the Second Modified Decision which implements this unnecessary and illegal plan. B. BLM has failed to "maintain a current inventory of wild free-roaming horses and burros on given areas of public lands" as required by the Wild Horses Act. The BLM has failed to provide scientific substantiation of current wild horse population estimates within these HMAs. BLM representatives have publicly stated that current methods used to count wild horses do not yield accurate numbers. The current estimated population is explained this way in the EA (page 3): The estimated current wild horse population within the HMAs are based on the April 2010 census flight of 404 wild horses within the White Mountain HMA and 190 wild horses in the Little Colorado HMA These numbers were increased by 35% which included 21% for the 2010 foal crop and 14%* for wild horses unobserved during the survey (404 x 0.35 = 141 + 404 = 545 White Mountain HMA) and (190 x 0.35 = 66 + 190 = 256 Little Colorado HMA). The estimated population was further adjusted 21% for 2011 foal crop recruitment (545 x 0.21 = 115 + 545 = 660 White Mountain HMA) and (256 x 0.21 = 54 + 256 = 310 Little Colorado HMA). The low AML is exceeded by an estimated 455 wild horses in the White Mountain HMA and 241 wild horses in the Little Colorado HMA. There are several problems with this population estimate: • The accuracy of census data conducted in flyovers in fixed wing aircraft is dependent on the skill of the observers, yet no information is provided on the qualifications of the BLM personnel who conducted this census data. Mention is made of plans to conduct an additional census in June 2011 to provide updated information on wild horse numbers, but BLM has not provided the results of that survey nor informed the public about whether it indeed even happened. The population numbers are increased by 21 percent annually to account for a new foal crop, yet no substantiation of that number is provided, and no evidence is provided that BLM has taken into account the effect of previous fertility control treatments on the reproductive rates of these herds. The population estimate incorrectly includes the 2011 foal crop, even though the roundup would be conducted before the beginning of the new year, when the BLM historically includes foals in population censuses. This incorrect inclusion of foal numbers in the population census increases the numbers of horses to be removed by 115, a significant portion of the 696 targeted for removal from these HMAs.

The BLM’s Wild Horse and Burro Management Handbook states on page 17 that “AML applies to the number of adult wild horses or burros to be managed within the population and does not include current year‘s foals. All WH&B one year of age and older are considered adults (a foal is considered one year of age on January 1 of the year following its birth).” (Emphasis added.) Regarding the proposed action, Cindy Wertz, public affairs specialist for the BLM in Cheyenne, told the Associated Press that “We’re assuming we never can gather 100 percent of the horses. We’re assuming we can gather approximately 90 percent. So that would still leave stallions and mares out on the range.” In other words, BLM will roundup every horse it can find in the HMAs and just assume that it is leaving 10 percent behind. However, based on its faulty population census data, the agency has no evidence that it will indeed, be leaving 10 percent of the population behind on the range, and therefore may be leaving the wild horse populations in these areas well below low AML levels, an action that would not be consistent with federal law. For all these reasons, we request that BLM reconsider its decision to conduct the roundup in White Mountain Little Colorado. At minimum, the BLM must provide the required 31 day appeal period for the Second Modified Decision.\ Sincerely,

Suzanne Roy Campaign Director 919-697-9389


Bob Abbey, Director, Bureau of Land Management ( Ed Roberson, Assistant Director, Bureau of Land Management ( Horst Greczmiel, Associate Director for NEPA Oversight, White House CEQ ( Katherine Meyer, Esq. (

Attachments: Rangeland Resource Report by Robert Edwards

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