Judge Friedman Denies Preliminary Injunction But Questions BLM Policies
Posted Dec 21, 2009 by laura allen, Animal Law Coalition
Update Dec. 23, 2009: Judge Paul L. Friedman has denied the motion by plaintiffs In Defense of Animals, Craig Downer and Terri Farley, for a preliminary injunction to stop the roundup of up to 2,736 wild horses from the Calico Mountain Complex herd management areas in Nevada.
But the judge has also rejected that BLM can continue to keep unadopted wild horses and burros in long term facilities. The judge agreed with the plaintiff that BLM has no authority to transport healthy unadoptable horses and hold them in long term holding facilities especially in places where they were not located previously, Oklahoma, Kansas or South Dakota.
The judge, however, found the plaintiffs did not raise this argument until their reply brief and it could not be the basis for a preliminary injunction. The judge said the defendants had not had time to brief the issue fully. The judge did reject the BLM's contention that Congress had ratified its policies of putting unadopted wild horses and burros into long term holding facilities by approving appropriations bills.
The judge suggested the agency postpone the roundup scheduled for December 28 but declined to issue an injunction at this time. The judge reasoned that if the BLM proceeds with the gather, knowing that long term holding may not be an option and with no funds under the Appropriations Act, FY 2010, for euthanization or sale for slaughter, the agency must come up with another solution for the horses it will have removed from the wild. The judge said that once removed as excess, the horses could not at that point simply be returned to the herd areas.
The judge found "untenable" the plaintiffs' other contention that BLM cannot round up and remove horses en masse. The court rejected the plaintiffs' interpretation of the Wild Free Roaming Horses and Burros Act, 16 U.S.C. Sec. 1331 et seq, (WFRHBA) that BLM must determine on a case by case basis those horses deemed "excess" or causing an overpopulation, and then remove them under a tiered approach with the old, sick and lame taken first and then the healthy adoptable horses. The judge said such a process would put the BLM in "an impossible Catch-22" because the agency could not really evaluate the health or age of horses without capturing them first. The judge found the WFRHBA did not prohibit the BLM's current method of rounding up horses, separating them, sterlizing and returning some and placing others in short term holding facilities for adoption or sale.
Judge Friedman did also say the public and BLM's interest in controlling the overpopulation of wild horses could be negatively impacted by a delay. He said "issuance of an injunction at this stage might lead to substantial growth in already overpopulated herds" in the Calico Complex. The judge said that, according to BLM, a spring roundup could result in more injuries for the wild horses.
This ruling does not end the case. With this ruling, judge rejected the motion for a preliminary injunction to keep the status quo pending a final decision. It is a serious warning to BLM that the judge does not think its policy of keeping wild horses in long term holding facilities, is legal. But, unfortunately, unless BLM takes the judge's advice, the Calico roundup will proceed on Dec. 28.
At this point, the best course of action is to call on President Barack Obama and BLM to stop the roundups. Urge Congress to take action, too, and demand a stop to these roundups! Go here to find out how you can join the call for a moratorium on BLM roundups of wild horses and burros.
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