Feds Can’t Sideline Horse Roundup Evidence

     WASHINGTON (CN) – A federal judge may block an agency’s plan to castrate wild stallions and return them to public lands after finding that it used an email error to “remain studiously ignorant of material scientific evidence.”
     The Bureau of Land Management proposed in 2008 and 2011 to round up and castrate wild horses before returning them to public lands. It says the program is necessary to control herd populations that can allegedly double every four years.
     But the American Wild Horse Preservation Campaign said the bureau’s plans violate the Wild-Free Roaming Horses and Burros Act, which makes it a crime to kill or harass a feral horse and burros.
     Citing expert declarations from four wild horse behavior experts and biologists, the activists asked for summary judgment in the case earlier this year.
     But the BLM said the testimony was not part of the administrative record and cannot inform the court’s consideration of a motion for summary judgment,
     U.S. District Judge Beryl Howell concluded, however, that the declarations of the experts are part of the administrative record because the group had included lengthy excerpts from the expert declarations in comments it filed within the agency’s public comment period on the proposed plan.
     The BLM had tried to sideline this finding by saying that an email error prevented it from receiving copies of the expert declarations until the day after the public comment period closed. It also claimed the court was obligated to give the agency a strong presumption of regularity in its records.
     Howell agreed with the presumption of regularity, but noted that the BLM already had copies of the expert declarations from previous administrative proceedings and litigation over its castration plans.
     “While it would have been a courtesy for the plaintiffs to include a copy of the expert declarations already possessed by BLM along with their comments relying on these expert declarations, they were not required to do so,” Howell wrote.
     As it was, Howell said, “plaintiffs have shown that they specifically directed the agency to the expert declarations in their timely-filed comments and later, less than two hours after the comment period ended, attempted to submit the Expert Declarations to the agency.”
     This, and repeated attempts in the days following the closing of the public comment period, to include the declarations in the record “constituted evidence that BLM considered the materials at least indirectly,” the judge said.
     “The court finds no reason to exclude the complete expert declarations from the AR merely because of a technical problem in forwarding copies of the expert declarations to the defendants in a timely manner,” the decision concludes, abbreviating administrative record.

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