Meyer Glitzenstein & Crystal

1601 Connecticut Avenue, N.W. Suite 700 Washington, D.C. 20009-1056
Katherine A. Meyer Eric R. Glitzenstein Howard M. Crystal William S. Eubanks II Jessica Almy Telephone (202) 588-5206 Fax (202) 588-5049

August 8, 2013 By Electronic Mail Jeff Ulrich, District Ranger U.S. Forest Service Humboldt-Toiyabe National Forest 1200 East Winnemucca Blvd. Winnemucca, NV 89445 Tom Tidwell, Chief U.S. Forest Service 1400 Independence Avenue, SW Washington, DC 20250-0003 Re: Formal Request for Removal of Branded Horses and Public Access for Roundup in Connection with the Service’s June 14, 2013 Notice to Impound Unauthorized Livestock

On behalf of the American Wild Horse Preservation Campaign, The Cloud Foundation, Return to Freedom, and Western Watersheds Project, we hereby request that the United States Forest Service (“Service” or “USFS”) ensure that no federally protected wild horses are removed from the range and transported to auction at the Fallon Livestock Exchange or any other facility in connection with the Service’s June 14, 2013 Notice of Intent to Impound Unauthorized Livestock in cooperation with the Fort McDermitt Paiute Tribal Council. In addition, we request that opportunities for meaningful public observation be provided at all trapsites and holding facilites. Specifically, as explained in more detail below, we request that (1) the Service commit to removing only horses that are branded; and (2) the Service allow representatives of the abovenamed organizations full access to the roundup operations in order to verify that no unbranded

horses – i.e., federally protected wild horses or horses of unknown origin – are in fact removed in connection with this roundup. If the Service refuses to accommodate these modest requests, the organizations will be forced to consider all available options – including litigation – to protect the federally protected wild horses under USFS and Bureau of Land Management (“BLM”) jurisdiction in Nevada and Oregon. BACKGROUND A. The Wild Free-Roaming Horses and Burros Act

Finding that “wild free-roaming horses and burros are living symbols of the historic and pioneer spirit of the West,” and that “they contribute to the diversity of life forms within the Nation and enrich the lives of the American people,” Congress enacted the Wild Free-Roaming Horses and Burros Act (“Act”), 16 U.S.C. § 1331 et seq., to ensure that “wild free-roaming horses and burros shall be protected from capture, branding, harassment, [and] death,” and “be considered in the area where presently found, as an integral part of the natural system of the public lands.” Id. § 1331; see also S. Rep. No. 92-242 (June 25, 1971) at 1 (identifying wild horses as “a national esthetic treasure” and “living symbols of the rugged independence and tireless energy of our pioneer heritage”). The Act was enacted as a result of “[w]idespread concern for the continued survival of these animals and their protection from continuing depredation,” and to protect the remaining wild horses “from extermination.” Id. at 2. The Act directs the Secretary of the Department of Interior “to protect and manage wild free-roaming horses . . . as components of the public lands,” and, towards that end, provides that the Secretary may “designate and maintain specific ranges on public lands as sanctuaries for their protection and preservation.” 16 U.S.C. § 1333(a). It further provides that the Secretary “shall manage wild free-roaming horses . . . in a manner that is designed to achieve and maintain a thriving natural ecological balance on the public lands,” and that for purpose of carrying out these duties he “shall consider the recommendations of qualified scientists in the field of biology and ecology.” Id. The Secretary’s duties have been delegated to the Service with respect to horses on USFS lands. 36 C.F.R. § 222.60. Thus, the Service has the duty to “protect, manage, and control wild free-roaming horses and burros on lands of the National Forest System and shall maintain vigilance for the welfare of wild free-roaming horses and burros that wander or migrate from the National Forest System.” Id. The Forest Service may not remove wild horses from public lands without consulting with the U.S. Fish and Wildlife Service, state wildlife agencies, and other individuals and organizations. Id. § 222.61. Wild horses – i.e., those subject to the Act – are defined as all “unbranded and unclaimed horses and burros and their progeny that have used lands of the National Forest System on or after December 15, 1971,” and all “unbranded, claimed horses” for which “the claim is found to be erroneous,” but excludes horses left on Forest Service lands “on or after December 15, 1971, by accident, negligence, or willful disregard of private ownership.” 36 C.F.R. § 222.60(b)(13). 2

The Forest Service has a duty to protect wild horses that have wandered off its lands. Id. § 222.65 (“Individual animals and herds of wild free-roaming horses and burros will be under the protection of the Chief, Forest Service, even though they may thereafter move to lands of other ownership or jurisdiction . . . . The Chief will exercise surveillance of these animals . . . and act immediately through appropriate administrative or criminal and civil judicial procedures to provide them the protective measures of the Act at any time he has cause to believe its provisions are being violated.”). The Service may only impound horses that are not deemed to be wild horses and which have “not become intermingled with wild free-roaming horses or burros,” which are considered “unauthorized livestock.” Id. § 222.63. The Act further provides that federal agencies “shall maintain a current inventory” of wild horses on public lands. 16 U.S.C. § 1333(b)(1). Where “an overpopulation exists” and “action should be taken to remove excess animals,” the Act sets forth a specific process to “determine appropriate management levels of wild free-roaming horses and burros on these areas of the public lands.” Id. Once the agency determines that there are “excess animals” that must be removed, it may place those animals for adoption by members of the public, humanely euthanize the animals, or, in certain circumstances, offer the animals for sale. Id. §§ 1333(b)(2); 1333(e). “This power may not be delegated to another.” Animal Prot. Inst. of Am., Inc. v. Hodel, 671 F. Supp. 695, 697 (D. Nev. 1987) aff’d 860 F.2d 920 (9th Cir. 1988). Slaughter of wild horses, or the sale of wild horses for slaughter, is not permitted under the Act. Id.; 16 U.S.C. § 1333(b)(2)(C). Courts have held that horses protected by the Act may not be offered for adoption to individuals who will exploit the horses for commercial gain, including by selling them to slaughterhouses. Hodel, 671 F. Supp. at 697. Rather, the “adoption portions of the statute were designed to ensure a suitable home for the animals [and the] Secretary may not abdicate responsibility to place the animals with ‘qualified’ individuals,” who are charged with caring for the horses and may not “exploit or destroy them.” Id.; see also United States v. Tomlinson, 574 F. Supp. 1531, 1534 (D. Wyo. 1983). Liability for slaughter under the Act extends even to people who do not themselves slaughter the wild horses, so long as there is “substantial evidence that [the individual] caused the death of these animals.” United States v. Hughes, 626 F.2d 619, 626 (9th Cir. 1980).1 B. The National Environmental Policy Act

The National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., is the nation’s “basic national charter for the protection of the environment.” 40 C.F.R. § 1500.1. It provides that, for all “major Federal actions significantly affecting the quality of the human environment,” federal agencies “shall” prepare a “detailed statement,” called an “Environmental

Moreover, several courts have recognized that the “wholesale slaughter of animals (especially horses) is considered by many to be degrading to the human spirit, and inappropriate conduct for a civilized human being.” Am. Horse Prot. Ass’n, Inc. v. Andrus, 460 F. Supp. 880, 887-88 (D. Nev. 1978) aff’d in part and vacated in part, 608 F.2d 811 (9th Cir. 1979); see also Cavel Int'l, Inc. v. Madigan, 500 F.3d 551, 557 (7th Cir. 2007). 3

Impact Statement” (“EIS”). 42 U.S.C. § 4332(C). The EIS must consider (1) the “environmental impact of the proposed action”; (2) any “adverse environmental effects which cannot be avoided”; (3) “alternatives to the proposed action”; (4) the relationship between “local short-term use of man’s environment and the maintenance of long-term productivity”; and (5) “any irreversible and irretrievable commitment of resources” involved in the proposal. Id. § 4332(c)(I)-(v). The Council on Environmental Quality (“CEQ”) – an agency within the Executive Office of the President – has promulgated regulations implementing NEPA’s requirements that are “binding on all Federal agencies.” 40 C.F.R. § 1500.3. Those regulations provide that, where the agency has not determined whether an EIS is required, it must generally prepare an “Environmental Assessment” (“EA”) to determine whether the environmental effects of its proposed action are “significant,” thereby requiring preparation of an EIS. Id. § 1501.4(b). The EA must analyze both “direct” impacts of the proposed action, i.e., those that result immediately from the proposed management action, as well as the “indirect” impacts, which are those caused by the action later in time but “still reasonably foreseeable.” Id. § 1508.8(a)-(b). The CEQ regulations further provide that “NEPA procedures must ensure that environmental information is available to public officials and citizens before decisions are made and before actions are taken.” 40 C.F.R. § 1500.1(b). Indeed, recognizing that “public scrutiny [is] essential to implementing NEPA,” id., the regulations provide that “Federal agencies shall to the fullest extent possible . . . encourage and facilitate public involvement in decisions which affect the quality of the human environment.” Id. § 1500.2(d). In determining whether a proposed action may have a “significant” impact on the environment – and hence require the preparation of an EIS – the agency is to consider a list of enumerated factors, including the degree to which the effects on the environment “are likely to be highly controversial;” the degree to which “the possible effects” are “highly uncertain or involve unique or unknown risks;” the degree to which the action “may establish a precedent for future actions with significant effects;” the degree to which the action “may cause loss or destruction of significant scientific, cultural, or historical resources;” and whether the action “threatens a violation” of federal law. Id. § 1508.27(b). Further, “[b]oth short- and long-term effects are relevant” to the significance analysis, id. § 1508.27(a), as are “[i]mpacts that may be both beneficial and adverse.” Id. § 1508.27(b)(1) (“A significant effect may exist even if the Federal agency believes that on balance the effect will be beneficial”). The presence of any one of these facts “‘should result in an agency decision to prepare an EIS.’” Humane Soc’y of the U.S. v. Johanns, 520 F. Supp.2d 8, 20 (D.D.C. 2007), quoting Fund for Animals v. Norton, 281 F. Supp. 2d 209, 218 (D.D.C. 2003) (“courts have found that the presence of one or more of [the CEQ significance] factors should result in an agency decision to prepare an EIS”) (other citations omitted). Where an agency argues that it has – on the basis of internal agency guidance or some other rationale – categorically excluded an action that would otherwise require NEPA compliance, the agency must conduct a contemporaneous analysis of whether the categorical 4

exclusion applies to the particular agency action. Humane Soc. of U.S. v. Johanns, 520 F. Supp. 2d 8, 35-36 (D.D.C. 2007). Failure to do so renders the agency action unlawful. Id. C. Factual Background

The Humboldt-Toiyabe National Forest is located in Nevada, and its Santa Rosa Ranger District has authority over issues within its jurisdiction in north-central Nevada. Although there is no wild horse territory in the Santa Rosa Ranger District, its borders are as close as ten miles to the nearest BLM-managed wild horse herd management area (“HMA”), which is a distance easily covered in a single day by wild horses in this region, particularly due to the lack of properly functioning fences in this region that have been ineffective at controlling livestock trespass on National Forest lands. See, e.g., July 8, 2010 Service Fence Construction and Reconstruction Project. According to the “Final Environmental Assessment (DOI-BLM-W0102012-0055-EA Owyhee Complex Herd Management Area Gather,” the Owyhee Complex and Gather Area Map, the gather area for capturing wild horses extended to the Humboldt-Toiyabe National Forest eastern border, indicating that wild horses were found in that area. See Complex_Gather_Area.pdf. Indeed the EA states that “wild horses have moved outside of the Owyhee Complex onto private and public lands that fall outside of designated HMA boundaries, as observed by BLM staff in 2011 and 2012.” EA at 5. Wild horses’ ability to travel great distances daily is well known and documented. This fact further supports that federally protected wild horses from the Little Owyhee HMA have moved outside the protected area and are living on USFS and other lands. For these reasons, it is highly likely that federally protected wild horses have routinely strayed onto National Forest lands in the Humboldt-Toiyabe National Forest, and will continue to do so until and unless a properly constructed border fence, continually maintained, proves effective to deter their immigration onto USFS lands. On June 14, 2013, District Ranger Jeff Ulrich signed a Notice of Intent to Impound Unauthorized Livestock in the Santa Rosa Ranger District. That notice explained that on or after August 1, 2013, “all unauthorized livestock found upon the National Forest System Lands or other lands within” the specified area “will be impounded by the United States Forest Service.” The notice further explained that “[a]ll livestock gathered will be transported to the Fort McDermitt Paiute & Shoshone reservation for disposition consistent with Fort McDermitt Tribal law and order code and the Fort McDermitt Horse Gather 2013 Participating Agreement” between the Service and the Tribal Council. Our clients are unaware of any NEPA review for this action of rounding up and permanently removing horses from the range. On August 6, 2013, the signatories to this letter learned that the Fort McDermitt Tribal Council – in close cooperation with the Service and the Service’s contractors – will remove from the range up to 700 horses pursuant to the June 14 notice, and will deliver all of those removed horses to the Fallon Livestock Exchange where they will be sold for various purposes, including slaughter in foreign countries. On August 7, 2013, on behalf of our clients, we contacted District 5

Ranger Ulrich, who explained that the Service anticipated “at least 95%” of the horses that will be removed from the range pursuant to the notice will be branded – i.e., the horses being removed will be domesticated horses rather than federally protected wild horses. There was no indication as to what the Service intends to do with respect to the unbranded horses that are rounded up. Due to their lack of branding and the impracticability of differentiating wild horses from domesticated horses based on physical differences alone, any unbranded horses could consist of federally protected wild horses that have strayed onto USFS lands from nearby BLMmanaged wild horse herd management areas such as the Little Owyhee HMA. Indeed, again, this is further borne out by the fact that when BLM conducts wild horse roundups of the Little Owyhee HMA, the roundup area extends to these USFS lands. See, e.g., BLM, Owyhee Complex Gather Area, available at office/projects/nepa/33902/40772/42882/ Figure_1_Owyhee_Complex_Gather_Area.pdf. During the call, District Ranger Ulrich also confirmed that one possible outcome for the horses subject to impoundment and auction pursuant to the June 14 notice is sale to third parties for the purpose of slaughter, despite the fact that U.S. Department of Agriculture Secretary Tom Vilsack has recently admonished the practice of horse slaughter in lieu of more humane options.2 DISCUSSION The Forest Service’s plan to round up and impound free-roaming horses in the Fort McDermitt Paiute and Shoshone Reservation and the Service’s Indian C&H Allotment, Quinn River C&H Allotment, and Eight Mile Closed Allotment will violate the Wild Free-Roaming Horses and Burros Act and NEPA unless the Service takes affirmative actions to ensure that wild horses are not impounded and sent to auction, where they could be purchased by “kill buyers,” who subsequently sell the horses to slaughterhouses. The purpose of this letter is to request specific actions to ensure that federally protected wild horses are not sold for slaughter and to provide reasonable public access and verification to ensure that the Forest Service is fulfilling its responsibilities under the Wild Free-Roaming Horses and Burros Act. Different legal mechanisms apply depending on whether the Service is authorizing the removal from the range of federally protected wild horses or the removal of domesticated horses. As the Service is aware, in order to remove federally protected wild horses from the range, regardless of whether they are found on BLM or USFS lands, the agency with jurisdiction must, at minimum, make a formal “excess” determination and provide a reasoned explanation for why “is necessary to remove excess animals.” 16 U.S.C. § 1333(b)(2)(iv). In addition, the removal of wild horses cannot occur without the governing agency complying with other federal environmental laws, including by preparing adequate NEPA review to analyze the environmental See Food Safety News, Secretary Vilsack Says Another Option Needed for Unwanted Horses, available at 6

impacts and reasonable alternatives to the proposed action. Removing wild horses from the range without meeting these and any other applicable legal mandates is arbitrary and capricious, and contrary to law.3 Here, the Service’s June 14 notice is silent as to whether the Forest Service and its contractors will only remove branded horses from the range to ensure that no federally protected wild horses are removed, or whether unbranded horses – which could likely include a subset of wild horses due to the proximity of the Little Owyhee HMA and their routine straying onto these USFS lands – will also be permanently removed and transported to the stockyard by the Service. In fact, in an August 7, 2013 telephone conversation Genny Wilson, Acting Deputy Forest Supervisor, confirmed to Deniz Bolbol of the American Wild Horse Preservation Campaign that the Service will remove both branded and unbranded horses from the range. Wilson stated that the Service would not be releasing any horses; either the owners of the horses would claim them, or the horses would be turned over – branded or unbranded – to the tribes. This distinction between branded and unbranded horses is critical. In our view, because the Service has not (and could not under the circumstances since this is not a USFS wild horse territory) made a formal “excess” determination pursuant to the Act, nor for that matter has it engaged in any NEPA analysis of the environmental effects of permanently removing any federally protected wild horses from the range, it would be illegal for the Service to remove, pursuant to the June 14 notice, any unbranded horses unless their domesticated origin can be definitively verified via legal documentation prior to removal. Accordingly, we formally demand a commitment from the Forest Service that before it begins rounding up and impounding horses, it will remove from the range only branded horses in connection with the June 14 notice, in compliance with all federal laws. In addition, while we recognize that state brand inspectors are expected to be present at the site of the impoundment, removing a federally protected wild horse from the range would violate the Act and NEPA. We therefore request that the Service and its contractors allow at least three representatives designated by the organizations submitting this letter to be present during and after the roundup and impoundment, and to have full access to the horses in order to verify that only branded domesticated horses have in fact been removed. Again, we think it is highly likely – based on the past immigration of wild horses from the Little Owyhee HMA to USFS lands where the roundup and impoundment will occur – that wild horses currently use these USFS lands and are intermingled with domesticated horses. As a result, it is crucial that we have access to verify that the horses being removed from the range are branded.

Even in the context of removing only domesticated wild horses under the Service’s investigative authority, the Service was required to prepare a determination setting forth the reasons why a categorical exclusion applies in this instance under NEPA. Johanns, 520 F. Supp. 2d 8, 35-36. We believe that the Service failed to make that statutorily required determination here. This is one of several legal violations that we will raise should the Service be unwilling to informally resolve this matter in the manner set forth in this letter. 7

We request that the access granted by the Service and its contractors be adequate to provide actual, real-time verification – i.e., we request that our representatives be allowed to stand on the platform as the horses are being processed in the chute, in order to view the horses and to verify that no wild horses or horses of unknown origin are being permanently removed from the range.4 Previous litigation has established the public’s right to observe government operations on public lands. See, e.g., Leigh vs. Salazar, No. 3:10-cv-597, 2013 WL 3791415 (D. Nev. July 19, 2013). Pursuant to that litigation, BLM has instituted public observation at all of its wild horse and burro capture operations. It is imperative that the Service uphold the public’s First Amendment rights and provide the same observation opportunities for the public at a publiclyfunded government operations on USFS lands. The Service is not permitted to delegate its constitutional responsibilities to a private party, and, in fact, is required to ensure that these constitutional responsibilities are upheld in any agreements or contracts the government enters into. Accordingly, we expect the Service to be in conformance with federal laws by providing the public an opportunity to observe all aspects of this capture and impoundment operation. Finally, we implore the Service to develop and apply a reasoned approach for returning any unbranded horses to the range. In the event that you round up unbranded horses – which, again, cannot be removed from the range in connection with this impoundment because it would violate several federal laws – the Service should follow a uniform approach to returning those horses to the range consistent with the Wild Free-Roaming Horses and Burros Act. For example, the Service might, in conjunction with BLM, commit to returning all unbranded horses to the Little Owyhee HMA for management by BLM. We ask to be apprised of the approach the agency intends to use, which should take into account the legal obligations that exist with respect to wild horses, and also proactively take steps to avoid the future roundup of these same horses during subsequent “unauthorized livestock” roundups on USFS lands since repeated captures can cause stress, trauma, and other behavioral effects to wild horses that can, over time, cause serious harm to the social dynamics exhibited by wild horse herds. CONCLUSION Because of the uncertainty of the origin of many of the horses where the Forest Service and its contractors are planning to roundup and impound these horses (i.e., whether or not the unbranded horses are federally protected wild horses), we believe that the modest proposals set forth in this letter are the minimum safeguards necessary to ensure that federally protected wild horses are not removed from the range without satisfaction of the statutory procedures that are legally required as a prerequisite for such action (e.g., a formal “excess” determination, NEPA review, and public comment opportunities).

In the event that the Service or its contractors deems it necessary, the on-site representatives would be willing to sign a waiver releasing the Service and/or its contractors from liability if anything should occur to the on-site representatives as a result of the roundup operations. We note that BLM and its gather contractors have granted requests of this kind for other horse roundups, including in the Pryor Mountains. 8

We hope that the Service is amenable to accommodating these requests in this more informal manner. However, if the Service refuses to provide its assurance that it will not remove any unbranded horses, or refuses to allow reliable third-party verification that only branded horses are being removed from the range, we will consider all available avenues, including litigation, to conserve the federally protected wild horses of Nevada and Oregon from unreasonable and unlawful removal from the range and to vindicate the public’s First Amendment rights to observe these federal activities, including on public lands. Please do not hesitate to contact us if you wish to discuss this matter or have any questions concerning this letter. Because this matter is highly time sensitive and the roundup is scheduled to begin tomorrow, August 9, 2013, we request a response no later than the close of business today, pacific time, Thursday August 8. If we do not hear from you before that time, we will assume that the Service does not intend to attempt to resolve this matter informally, and we will proceed accordingly.


William S. Eubanks II Jessica Almy Cc: Jill Silvey, District Manager Bureau of Land Management Elko District Office 3900 E. Idaho Street Elko, NV 89801 Gene Seidlitz, District Manager Bureau of Land Management Winnemucca District Office 5100 East Winnemucca Blvd. Winnemucca, NV 89445


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