Wild-Horse Roundup Defended by 9th Circuit

(CN) - Federal land managers properly winnowed a large herd of wild horses near the California-Nevada border, the 9th Circuit ruled Monday, calling mustangs "sympathetic, even inspiring, but voracious, animals."

Using helicopters to drive mustangs and burros into holding pens, the Bureau of Land Management completed the Twin Peaks Herd Management Area's (HMA) largest ever roundup in the summer of 2010, despite strong opposition from animal-welfare groups.

The agency says that periodic roundups are necessary to maintain a sustainable herd and prevent destruction of streams, rangelands and cultural artifacts. After gathering some 1,639 wild horses, the BLM released 739 back into the management area. Land managers also treated mares with porcine zona pellucida (PZP) to reduce their fertility for two years.

In Defense of Animals and Dreamcatcher Wild Horse and Burro Sanctuary failed to stop the roundup with an injunction and alleged in a federal lawsuit that the BLM's methods and priorities violated the Wild Free-Roaming Horses and Burros Act and the National Environmental Policy Act.

U.S. District Judge Morrison England ruled for the government in Sacramento, and the 9th Circuit affirmed, 2-1, on Monday.

"That these animals should roam the Western spaces appeals to the nature lover and historian in each of us," Judge Carlos Bea wrote for the majority. "But these animals eat and trample. Even in the wide open West of our nation, there is just so much forage; there are also many vulnerable cultural artifacts underfoot."

While the majority found that the BLM's actions "fell within the discretion which courts have recognized the BLM has to remove excess animals from an HMA," one judge argued that the agency had actually ignored specific priorities set down by Congress.

With the Wild Free Roaming Horses and Burros Act, Congress intended to protect mustangs from, among other things, "capture, branding, harassment or death," Judge Johnnie Rawlinson wrote in a dissent.

"There is absolutely no textual support in the act for the secretary to capture the entire herd of wild horses, excess and non-excess alike, in total disregard of the explicit priority articulated in the act," Rawlinson argued. "In addition, it cannot be gainsaid that the wholesale capture of the wild horse herd is the complete antithesis of the 'minimal feasible level' of management mandated by the act."

Unsure Monday of the groups' next move, their attorney, Rachel Fazio, told Courthouse News that she agreed with Rawlinson.

"Aside from Judge Rawlinson's dissent, the court refused to recognize any constraint on the BLM's management of wild horses," Fazio said in an email. "We had hoped that we would get a panel that would actually look past the BLM's hyperbolic rhetoric and recognize that Congress clearly intended to protect wild horses and burros in their wild state, and in doing so imposed constraints on when and how the agencies could manage them."

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