American Horse Protection Ass'n, Inc. v. Frizzell

• Decision Date: 02 October 1975
• Docket Number: Civ. No. LV 75-143 RDF.
• Citation: 403 F. Supp. 1206
• Parties: AMERICAN HORSE PROTECTION ASSOCIATION, INC., a Virginia nonprofit corporation, Plaintiff, v. Dale Kent FRIZZELL, acting Secretary, United States Department of Interior, et al., Defendants.
• Court: U.S. District Court — District of Nevada

403 F. Supp. 1206

AMERICAN HORSE PROTECTION ASSOCIATION, INC., a Virginia nonprofit corporation, Plaintiff, v. Dale Kent FRIZZELL, acting Secretary, United States Department of Interior, et al., Defendants.

Civ. No. LV 75-143 RDF.

United States District Court, D. Nevada.

October 2, 1975.

COPYRIGHT MATERIAL OMITTED

Robert C. McCandless, Washington, D. C., for plaintiff.

John E. Lindskold, Atty., U. S. Dept. of Justice, James Coda, Atty., U. S. Dept. of the Interior, Washington, D. C., U. S. Atty. Lawrence J. Semenza by Asst. U. S. Atty. Wm. C. Turner, Las Vegas, Nev. for defendants Frizzell, Berklund, Turcott, Wilkes, Rowland and Nodine.

Atty. Gen. Robert List by Wm. E. Isaeff, Deputy Atty. Gen., Las Vegas, Nev., for State of Nevada defendants Ballow, Raetz and Lee.

MEMORANDUM AND ORDER DENYING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION

ROGER D. FOLEY, Chief Judge.

Plaintiff filed this action on July 23, 1975, in the United States District Court for the District of Columbia, seeking declaratory and injunctive relief against the various federal defendants concerning a proposed Bureau of Land Management (BLM) round up of wild horses in Stone Cabin Valley, Nevada. On July 24, 1975, the district court in the District of Columbia granted defendants' motion for a change of venue and ordered that the action be moved to the United States District Court for the District of Nevada.

On September 10, 1975, plaintiff filed an amended complaint in this Court and a motion for a temporary restraining order to prohibit the defendants from conducting the proposed wild horse roundup. The amended complaint added the state defendants to this action. On September 11, 1975, this Court denied plaintiff's motion for a temporary restraining order and agreed to treat that motion as a motion for a preliminary injunction. On September 17, 1975, a hearing on plaintiff's motion was conducted in this Court. This memorandum and order is the Court's decision on that motion.

FACTS

The Stone Cabin Valley contains about 385,000 acres of land (encompassing an area of approximately 600 square miles) and is located in central Nevada, about 25 miles east of Tonopah, Nevada. About 99% of the land is National Resource Land, within an established BLM grazing district; the remaining 1% is under private ownership. The land may be characterized as predominantly desert, with vegetation consisting of big sagebrush, black sagebrush, saltbrush, greasewood, and plya. At the higher elevations along the mountain ranges which border the Valley, vegetation consisting of pinion-juniper woodland is present.

Several desert land entry farms have been located in the Valley, but only one is active. Three cattle operations use the grazing unit, with about 2400 head consuming about 15,400 Animal Unit Months (AUMs) per year. A 1959 range survey showed production of vegetation in the Valley at 19,782 AUMs per year. Of these, 2,011 AUMs were reserved for wildlife and 17,771 AUMs for livestock. Since licensed livestock grazing use is 15,400 AUMs, about 2,300 AUMs remain uncommitted or available for wild horses.

Estimates of the number of wild horses in Stone Cabin Valley range from a figure of 200-300 (provided by plaintiff based on an aerial count conducted in June, 1975) to BLM estimates of 1000-1200 (based on statistically-computed estimates, using an 18% per year rate of increase). Plaintiff's most qualified expert, Dr. David W. Kitchen of Humboldt State University, estimates that about 900 horses currently populate the Stone Cabin Valley and that their population is stable. He acknowledges that his population estimates are similar to those of the BLM, but states that "finding a similar population size does not necessarily support or refute the need to remove wild horses from Stone Cabin Valley. At present data are insufficient to permit a decision regarding removal of horses from the present population." (Affidavit of Dr. Kitchen of September 12, 1975, attached to plaintiff's supplemental memorandum of points and authorities in support of motion for a preliminary injunction, filed September 16, 1975.) This Court finds that the estimates of Dr. Kitchen and those of the BLM support a population of wild horses ranging from 900-1200 currently in Stone Cabin Valley.

Almost all of the material presented to this Court indicates that there is a serious overgrazing problem in the Stone Cabin Valley. Government affidavits show that the range is and has been deteriorating because of overgrazing for many years. One Government affiant, C. Wayne Cook of Colorado State University, estimates that even if the horses are removed immediately, twenty to fifty years will be required for the recovery of the understory forage plants on the range area. He asserts that "unless substantial numbers of wild horses are removed in the near future it will require a hundred years or more for recovery of this range area . . ." (Affidavit of Dr. Cook of September 11, 1975, attached to defendants' memorandum in opposition to plaintiff's motion for a preliminary injunction, filed September 16, 1975.) Several members of plaintiff organization viewed the range in the summer of 1975 and report that the range appears in good condition. Apparently, 1975 has been a good year in terms of rainfall and other conditions favorable to vegetative growth; the years just prior to 1975 had been bad, and the range condition overall remains poor. Defendants' evidence indicates that one good year of precipitation will not bring back an abused and deteriorating range. The understory forage plants require several years of growth to strengthen the vegetative resources of the range. The affidavit of plaintiff's expert, Dr. Kitchen, confirms the poor condition of the range:

. . . the overall range condition of the Valley is poor compared to this range's condition 50 years ago. The deterioration of range condition in this area is not recent, but has occurred over a long period. Stone Cabin Valley has received heavy grazing pressure from cattle and sheep for a long time and most of the decline in range condition can be attributed to historical overgrazing before 1972 and not simply a recent, small increase in wild horses.

9. The range is not going to collapse suddenly or change dramatically from its present quality in one or two years . . . It is apparent that some range deterioration was due to drought and not to increased numbers of wild horses.

(Affidavit of Dr. Kitchen of September 12, 1975) (emphasis in original).

The primary dispute regarding range condition, then, is over how the deterioration has been caused, and not over the fact that the range is in poor condition.

Faced with the problem of a deteriorating range in Stone Cabin Valley, BLM officials in Nevada began exploring ways to preserve the range. In the fall of 1974, these officials settled on a proposal to remove approximately 400 wild horses deemed to be in excess of the 1971 population. On January 10, 1974, BLM's proposal to gather wild horses was submitted in final form by Gene Nodine, BLM's Battle Mountain District Manager and a defendant in this action, to E. I. Rowland, BLM's State Director for Nevada. This proposal was submitted to BLM officials in Washington, D.C., for approval (see memorandum from Mr. Rowland to the Director of BLM, dated May 2, 1975). On May 30, 1975, BLM Director Curt Berklund authorized the gathering and removal of about 400 excess wild free-roaming horses from the Stone Cabin Valley (see memorandum from Mr. Berklund, attached as Exhibit B to defendants' original memorandum in opposition to plaintiff's motion for a temporary restraining order, filed on July 23, 1975, in the District Court for the District of Columbia). An affidavit of Mr. Berklund of July 23, 1975, indicates that the National Advisory Board for Wild Free-Roaming Horses and Burros¹ toured the Stone Cabin Valley and concurred that the Valley was heavily overgrazed; this tour was conducted in September, 1974. The affidavit also indicates that several other individuals and organizations have observed the Valley and support BLM efforts to protect the vegetative resources there, including the Governor of Nevada, the Nevada Department of Fish and Game, the National Wild Horse Association, and Wild Horse Organized Assistance, Inc. (WHOA!), Wild Horse Annie's organization (see letters attached as exhibits D, E, F, and G, attached to defendants' original memorandum in opposition to plaintiff's motion for a temporary restraining order, filed on July 23, 1975). None of these individuals or groups have protested this round up (the Court notes that Wild Horse Annie, Velma B. Johnston, and her organization, based in Reno, Nevada, have long been active and ardent supporters of wild free-roaming horses. The 1959 law prohibiting the use of aircraft and motor vehicles to hunt wild horses on public lands is commonly known as the "Wild Horse Annie Act". See 18 U.S.C. § 47, and the legislative history accompanying Public Law 86-234, 1959 U.S.Code Cong. and Admin. News, p. 2253).

BLM officials in Nevada prepared an Environmental Analysis Record (EAR) on the proposed round up as an interim program of range protection.² This report was signed on May 15, 1975, concluding that

. . . none of the alternative proposals discussed in this analysis constitute a major federal action significantly affecting the quality of the human environment and that an environmental impact statement will not be required for any alternative selected. (EAR at 32, attached as exhibit H to defendants' original memorandum in opposition to plaintiff's motion for a temporary restraining order, filed on July 23, 1975)

Five alternative actions were considered: (1) No action; (2) Delay action until the Tonopah Management Framework Plan (MFP) is revised (the revision is expected to be completed sometime in fiscal year 1977); (3) Remove 400 wild horses from Stone Cabin Valley; (4) Remove cattle by a number...