FOA INTERVENES, SECURES VICTORY FOR PRAIRIE DOGS AND THE ESA
In March, the Tenth Circuit Court of Appeals overturned a 2014 decision by a federal district judge in Utah that sought to strip the Utah prairie dog of federal protection under the Endangered Species Act (ESA). Judge Dee Benson had ruled that Congress exceeded its authority under the U.S. Constitution when it authorized the U.S. Fish and Wildlife Service to prohibit the killing or harassment of Utah prairie dogs on public lands.
The federal district court had adopted a species-by-species approach, arguing that the federal government had to first demonstrate that a species had value in interstate commerce before it could protect the species under the ESA. The Tenth Circuit, agreeing with other federal courts, rejected this species-specific approach.
“This is a huge victory for Utah prairie dogs and the ESA,” says Michael Harris, director of Friends of Animals’ Wildlife Law Program. Friends of Animals (FoA) immediately intervened in a 2013 lawsuit brought by People for the Ethical Treatment of Property Owners (PETPO) challenging the USFWS’ decision to list the Utah prairie dog as a threatened species, as it restricted what landowners can do in regards to managing the species on private land.
In Tenth Circuit opinion, authored by Judge Jerome Holmes, the court concluded that under the Commerce Clause of the Constitution, Congress can extend protection to any species, regardless of its specific commercial value, because such regulation “is an essential part of a broader regulatory scheme that substantially affects interstate commerce.” Indeed, as the court made clear, in passing the ESA, Congress specifically sought to both place a “short-term” brake on human economic activity that threatened the existence of species like the Utah prairie dog and to promote “long-term” sustainable commerce by conserving individual species and their habitats.
“On display in this case is an ongoing, fundamental dispute over the value of America’s natural heritage,” Harris says. “On one side, a minority of private property owners and some state governments appear to view members of the animal kingdom as being valueless and unworthy of protection unless they can be reduced to mere ‘commodities.’ Accordingly, in their view, if an animal cannot be sold or traded, then it is no more than a mere pest to be eradicated to make way for human development.
“On the other side, Friends of Animals, numerous scientists and millions of Americans recognize that protection of all members of the North American biota— from the smallest fungi to the greatest of mammals— is essential to biodiversity and to human economic health.” “The reality is that the Utah prairie dog, like many other animals, is worthy of protection from human destruction because they are unique individuals capable of living meaningful lives,” says Priscilla Feral, president of Friends of Animals.
“These are some of the most intelligent, social animals in the world. Moreover, the Utah prairie dogs’ value in maintaining the health of western grassland ecosystems is immeasurable.” In addition to protecting the Utah prairie dog, the Tenth Circuit also prevented the ESA from a lingering death at the hands of anti-wildlife, pro-property activists like the plaintiffs in this case. “While PETPO asserts it is only trying to reduce regulation of Utah prairie dogs on their private lands, the reality is that PETPO and their allies’ true agenda is to blow a massive hole through the ESA,” states Harris. “If the lower court’s decision was left in place, protections of more than a third of all threatened and endangered species in the United States would have been in jeopardy.”
FOA CONTINUES TO FIGHT FOR AMERICA’S WILD HORSES….AND WIN WYOMING
In March, Friends of Animals (FoA) obtained another remarkable victory for wild horses—the organization challenged one of the largest wild horse roundups in Wyoming’s Red Desert Complex and won. In 2016, the U.S. Bureau of Land Management (BLM) authorized the roundup and removal of 2,096 wild horses from the Lost Creek, Stewart Creek, Antelope Hills, Crooks Mountain and Green Mountain Herd Management Areas in south central and central Wyoming. The agency’s decision also allowed the forced drugging with fertility control of some mares to be released back to the HMAs.
“Friends of Animals challenged the agency’s decision because, among other things, BLM failed to consider the impact of its decision on the unique Iberian genotype of these wild horse herds,” said Jennifer Best, associate attorney for FoA’s Wildlife Law Program. “Our lawsuit argued that BLM had committed to preserve this genotype and was legally required to consider how its decision would impact these distinct wild horses.”
The Court vacated and remanded BLM’s decision, meaning BLM cannot remove these horses until it goes back to analyze the potential impact of roundups on the special genotype of these horses and issues a new decision.
“BLM has committed in its Range Management Plans to engage in management practices, monitoring and analyses to help assure a sufficient prevalence of these historically important breeds,” noted Judge Nancy Freudenthal. “BLM should not ignore such promises during periodic gathers, risking the loss of significant genetic resources.”
In March, a federal judge in Portland, Oregon, granted a request by Friends of Animals (FoA) to undertake questioning of Bureau of Land Management (BLM) officials in the form of interrogatories and depositions regarding an “emergency removal” the agency undertook on the Three Fingers Horse Management Area (HMA) in eastern Oregon.
As a result of a brush fire that impacted the northern portion of this HMA, BLM removed 150 horses without complying with federal law, and refused any request by FoA to put the horses back now that the land is recovering from the fire. This is a huge first step toward stopping BLM from claiming that emergency situations require that horses be permanently removed from the wild. FoA intends to demonstrate that BLM can use less permanent and severe means of protecting horses from threats—measures that will keep horses wild.
Specifically, the judge has ordered BLM to comply with requests from FoA to determine whether: (1) the removed horses can be returned to the Three Fingers HMA after post-fire restoration has been completed; (2) unburned portions of the HMA can support additional horses; (3) fencing is a viable alternative to removal to protect the fire-damaged areas from wild horses; and (4) supplemental food and water can be provided to keep wild horses from returning to the fire damaged areas.
Since FoA commenced a legal campaign in January 2015 to protect America’s wild horses, BLM has engaged in dozens of illegal roundups, resulting in thousands of horses being violently removed from the wild and placed in BLM-run detention centers.
Through legal action, FoA has successfully stopped such roundups in Arizona, Nevada, Wyoming and Montana, and we have additional lawsuits making way through the federal courts involving horses in Colorado, Utah and Oregon. Sadly, each time we prevail in court, BLM comes up with a new way to avoid complying with the federal Freeroaming, Wild Horse and Burro Act and the National Environmental Policy Act. The most widely-used method of avoiding these laws is through the use of so-called “Emergency Action.”
Since summer of 2016, BLM has engaged in numerous wild horse round-ups by claiming some sort of imminent threat to the horses, usually due to the horses coming to close to roads or suffering from lack of food. While in some cases risks are present to the horses, the fact of the matter is that BLM is merely using the situation as an excuse to permanently remove horses from the land without complying with the law.
How do we know this? Because in each and every case that BLM has declared an “emergency” the agency has not once considered any solution short of permanent removal. FoA has repeatedly asked BLM why it cannot take less drastic measures to protect the horses, such as providing supplemental food, using fencing to protect the horses, or even using temporary removals until the emergency is abated. Every time BLM refuses to consider any option short of permanently subjecting the horses to confinement in dreadful holding facilities.
Following a lawsuit filed by international animal advocacy group Friends of Animals, in May the Bureau of Land Management (BLM) cancelled its five-year remote darting program that would have forcibly drugged Nevada’s Rocky Hill wild horses with fertility control.
“This is a significant victory for Nevada’s wild horses because it was a five-year fertility control plan,” said Michael Harris, director of Friends of Animals’ Wildlife Law Program. “What is ignored by the pro-fertility control community is that wild horses darted with PZP to inhibit their ability to naturally reproduce aren’t really, well, wild anymore.
“The solution to any perceived wild horse crisis in Nevada is not to simply prescribe a drug. If wild horses, along with other wild animals in the West, are to be saved, we must change the unsustainable method of land use planning that we have created for our public lands. Wild horses and other wildlife deserve their own lands to call home.”
Since the BLM caters to the cattle and sheep ranching industry, it has created an artificially low appropriate management level for the Rocky Hills Herd Management Area (HMA). A measly 86-143 wild horses are deemed appropriate for the HMA, which consists of 83,988 acres. If that’s not staggering enough, the bombshell in this case is that the Humane Society of the United States (HSUS), which claims to advocate for the protection of wild horses and burros, intervened in Friends of Animals’ original appeal and petition to suspend BLM’s Aug. 2016 decision on behalf of the BLM, showing its true colors—that one of the nation’s wealthiest animal charities buys into the myth perpetuated by cattle and sheep ranchers that there are too many wild horses on federal public lands.
HSUS is the registrant of the fertility control drugs PZP and ZonaStat-H. However when HSUS obtained EPA registration, the organization never provided evidence that the birth control doesn’t have negative side effects…it just provided information about its efficacy and actually requested waivers for most of the studies ordinarily required from an applicant seeking pesticide registration—including a toxicity study, ecological effects and environmental fate guideline study.
The majority of research submitted by HSUS did not consider the biological, social and behavioral effects the drug can have on wild horses. More recent research has demonstrated repeated applications of PZP can cause physical damage to treated mares; it is not completely reversible; it can increase mortality in foals post-PZP effectiveness; and it interferes with herd cohesion, which is critical to the overall health of wild horses. In addition, preventing mares from producing foals can create a genetic bottleneck that may ultimately extinguish the species as a whole.
No public comment or notice was given before the BLM’s decision about the Rocky Hills HMA was made. Furthermore, the BLM did not prepare a project-specific Environmental Assessment (EA) to inform this decision; instead, BLM completed a Determination of NEPA Adequacy (DNA), in which it concluded that the Fertility Control Darting Project
“is essentially similar to an alternative analyzed in the prior National Environmental Protection Act (NEPA) documents,” and the effects of the Project “are similar to those disclosed” in the 2010 Callaghan Complex EA, so no further NEPA analysis was necessary.”
“We were repulsed from the beginning that HSUS would condone BLM’s failure to comply with federal law, specifically NEPA,” said Priscilla Feral, president of Friends of Animals. “But bolstered by this victory, FoA marches on in its fight to keep the wild in wilderness and to make sure our federal public lands do not become zoo-like settings.”