American Horse Protection Ass'n v. Andrus

• Citation: 460 F. Supp. 880
• Decision Date: 15 September 1978
• Docket Number: Civ. No. R-78-105BRT.
• Parties: AMERICAN HORSE PROTECTION ASSOCIATION, INC., et al., Plaintiffs, v. Cecil ANDRUS et al., Defendants.
• Court: U.S. District Court — District of Nevada

460 F. Supp. 880

AMERICAN HORSE PROTECTION ASSOCIATION, INC., et al., Plaintiffs, v. Cecil ANDRUS et al., Defendants.

Civ. No. R-78-105BRT.

United States District Court, D. Nevada.

September 15, 1978.

McCandless & Barrett, Robert C. McCandless, David M. Barrett and Russell J. Gaspar, Washington, D.C., for American.

Murdaugh Stuart Madden and Roger A. Kindler, Washington, D.C., for Humane Soc.

B. Mahlon Brown, U. S. Atty., Dist. of Nevada, Reno, Nev., Walter J. Postula, Atty., Dept. of Justice, Washington, D.C., for defendants.

BRUCE R. THOMPSON, District Judge.

ORDER ON MOTION FOR PRELIMINARY INJUNCTION

This is an action brought by American Horse Protection Association, Inc. and the Humane Society of the United States against the Secretary of the Interior and subordinate officials for declaratory and injunctive relief concerning the administration in Nevada of the Wild Horses and Burros Act adopted by the Congress on December 15, 1971.

The Court held an evidentiary hearing on plaintiffs' motion for a preliminary injunction on July 27th and 28th. The motion sought to enjoin defendants from implementing their announced plans to remove wild, free roaming horses from federal public lands in four Nevada grazing districts. Plaintiffs contend that the round-up proposals are violative of the National Environmental Policy Act in that defendants unreasonably determined that the roundups will not have significant environmental effects and are violative of the Wild Free-Roaming Horses and Burros Act in that the round-ups are being planned without adequate information, in a manner that is not the minimum feasible level of management of wild horses, and without a proper consideration of alternatives. Defendants' cruel and inhumane operation of a wild horse holding facility at Palomino Valley, Nevada is also challenged as violative of the Wild Horses Act.

The Congressional Reports which led to the passage of the Wild Free-Roaming Horses and Burros Act stated, in part:

"We believe that a comprehensive wild horse and burro management program can no longer be deferred. Consistent with sound management practice, no such program should be undertaken that does not (1) provide for the protection and preservation of healthy animals and (2) help to maintain a viable balance between the numbers of animals protected and the continued availability of suitable habitat. The number of nonpermitted free-roaming horses, found mainly in Nevada, Oregon, and Wyoming, has remained relatively stable at 17,000. Of this total, it is estimated that 7,500 are branded or probably will be claimed by private owners, leaving about 9,500 unclaimed free-roaming horses. However, the number of unclaimed free-roaming burros, now at 10,000, has continued to grow in the areas of Arizona and California where they are most often found. Our responsibility for management of wildlife on the public lands requires that we give consideration to the needs of all species, including some now threatened with extinction."

(Letter of Secretary of Interior dated April 16, 1971.)

"Reliance on ranges, and particularly fenced ranges, would defeat the purpose of the legislation, i. e., the survival of wild free-roaming horses and burros, and substitute a `zoo-like' concept. The conferees are of the opinion that the confinement of these animals to such ranges, except in unusual circumstances, should be discouraged and that the animals should be considered as integral parts of the public lands, which should be administered on concepts of multiple use. The principal goal of this legislation is to provide for the protection of the animals from death and harassment at the hands of man and not the single-use management of areas for the benefit of the wild free-roaming horses and burros. Hence, the inclusion of the phrase `in keeping with the multiple-use management concept for the public lands.'"

(Joint Statement of the Committee of Conference).

"The Senate version of the bill authorizes and directs the Secretary to undertake studies of the habits of the animals. The House amendment does not. The Committee of Conference agreed to the adoption of the Senate language in light of the apparent lack of adequate knowledge regarding many of the habits of these animals.

"It is the opinion of the conferees that the compromise version of this legislation as embodied in the conference report will prove to be an effective measure. It should be pointed out that the Secretaries of Interior and Agriculture are given a high degree of discretionary authority for the purposes of protection, management, and control of wild free-roaming horses and burros on the public lands. The Act provides the administrative tools for protection of the animals from depredation by man. This is the paramount responsibility with which the Secretaries are charged under the terms of the statute.

"The Congress has declared that wild free-roaming horses and burros enrich the lives of the American people. The conferees, by recommending the language of the conference report, hope to insure the preservation and protection of the few remaining wild free-roaming horses and burros in order to enhance and enrich the dreams and enjoyment of future generations of Americans."

(Joint Statement) (Vol. 2, U.S.Code Congressional and Administrative News, 92nd Congress, First Session 1971, p. 2149 et seq.).

The State of Nevada, comprising approximately 110,000 square miles, has been divided administratively by the Bureau of Land Management of the Department of the Interior into six grazing districts, each roughly equal in size (see maps attached to Environmental Assessment Records, for example, Exhibit 6). There are six proposed horse round-ups involved in the motion for a preliminary injunction.

1. The Paradise-Denio Resource Area (Exhibit 1) in the Winnemucca District involves mountain range lands in the Krum Hills, Bloody Run Hills, Hot Spring Range and Osgood Mountains. In 1977 approximately 800 horses were counted in this area. As shown by Exhibit 18 this area is actually five separate horse ranges, the horse counts in each area being as follows: 228, 206, 123, 229 and 13, but, as disclosed by the map (Figure 1, Exhibit 1) were treated as one area for purposes of the Environmental Assessment Record. The assessment included 704,000 acres of public lands administered by the BLM in a grazing district which encompasses 8,253,000 acres of public lands so managed. The area lies on both sides of the City of Winnemucca, Nevada extending roughly 30 miles in an east-west direction and 20 miles north from Winnemucca. The Winnemucca Grazing District occupies an area approximately 140 miles north-south and 120 miles east-west. The Paradise-Denio area is a checkerboard area (caused by congressional grants of alternate sections for the aid of railroads) and 65% is in public ownership and 35% privately owned.

2. The East Range (Exhibit 2) is southwest of Winnemucca comprising 577,375 acres, 73% public lands and 27% privately owned—another checkerboard area. It is one integrated horse range about 40 miles long (N-S) and 20 miles wide. The 1977 count identified 1,093 horses on the range.

3. The Stone Cabin and Reveille Grazing Allotments in the Tonopah Resource Area of the Battle Mountain Grazing District are adjacent to each other and to the northern boundary of Nellis Airforce Base. The area is roughly fifty miles square. The entire Battle Mountain District is roughly 200 miles (N-S) and 100 miles (E-W). The horses were counted in 1978. It is planned by round-up to reduce the 785 head of horses to 185 head and thereafter to permit a fluctuation between 185 and 320 head in the Stone Cabin area. It is planned to reduce the 690 head of horses in the Reveille area to 175 head and thereafter to permit fluctuation between 175 and 225 head of horses.

4. Flanigan Management Area. This area is approximately fifty miles north of Reno, Nevada. There are six separate small herds of horses in the area. It is planned to establish an intensive wild horse management situs in the Flanigan Allotment for approximately 100 head and to remove all but about 75 head for a starter, a round-up of about 210 head. The present six scattered small herds range in an area approximately twenty miles square in the Carson City Grazing District which encompasses approximately five and one-half million acres managed by the BLM.

5. Horse Mountain Area. This, too, is in the Carson City Grazing District about seventeen miles southwest of Fallon, Nevada. The approximately 35,000 acres of federal range carry an estimated 65 to 80 head of horses. The plan is to reduce the horse herd to the 1971 level of approximately 27 head.

6. Monte Cristo Area is in the Egan Resource Area of the Ely Grazing District. The Ely Grazing District encompasses eight million acres of public lands administered by the BLM. It is roughly 100 miles in width and 150 miles in length (N-S). The Monte Cristo area includes 228,000 acres of BLM and National Forest lands. It is estimated that there were 71 horses in the area in 1971 and these had increased to 141 by 1975 when a count was made. The 1978 count disclosed 188 head (Exhibit 18). The range is approximately 40 miles long (N-S) and 20 miles wide. The plan is to round-up and remove approximately 55 wild horses from this area.

With respect to each of the six areas listed, defendants produced an Environmental Assessment Record. These are in evidence (Exhibits 1-6). While they are not offered as complete environmental impact statements under NEPA, and do not all cover the same subject matters in the same detail, each of them demonstrates a sincere effort by the officials of the Bureau of Land Management to bring together the significant data bearing upon a decision with respect to whether numbers of wild horses should be rounded up and disposed of as authorized by the Wild Horses and Burros Act, 16 U.S.C. § 1333(b). Each of the areas in question...