Reno Gazette-Journal, Andy Barron
RENO, Nev. — Wild-horse advocates fighting government roundups across the West are citing past rulings that shot down their own legal challenges in urging a U.S. judge to throw out a lawsuit by livestock interests seeking the removal of thousands of more mustangs from the range.
Although somewhat successful in a few isolated cases in Nevada in recent years, horse groups routinely have been turned away over the past decade by federal judges who say the courts lack the authority to overrule the expertise of the U.S. Bureau of Land Management.
They point to a series of such rulings in a motion filed this week in U.S. District Court in Reno to dismiss a lawsuit by the Nevada Farm Bureau Federation and Nevada Association of Counties.
The rural groups argue more roundups are necessary to cull overpopulated herds competing with livestock for water and forage. The suit filed in December seeks to force BLM to sell older horses deemed unadoptable without the usual prohibition on resale for slaughter.
The American Wild Horse Preservation Campaign and others said in requesting dismissal of the suit that the plaintiffs "seek to overhaul the entire program through litigation" but fail to cite any specific agency action that violates the law, including the Wild Free-Roaming Horses and Burros Act.
It's "the latest attempt by ranchers to create a legal facade to give the BLM an excuse to cave in to their interests and remove more mustangs," said campaign director Suzanne Roy. She called the suit a "meritless legal assault on federally protected wild horses and burros by ranchers who view these national icons as competition for cheap, taxpayer-subsidized grazing on our public lands."
BLM estimates there are 40,600 wild horses and burros on federal rangeland in 10 Western states — 14,000 more than the agency maintains the land can sustain. About half of the mustangs are in Nevada.
BLM removed about 8,000 of the animals in 2012 but only about 4,000 last year, due in part to budget constraints.
The Farm Bureau argues the overpopulation "has severe impacts on the health of the horses as well as the ecological health and sustainability of Nevada's rangelands."
"Loss of use of public lands as well as the cost of services associated with the health and safety impacts ... decreases tax revenues and yet increases the costs that counties must bear," the county coalition said.
In asking for the suit's dismissal, the opponents say several suits challenging BLM roundups over the past decade have failed based on the precedent set in a U.S. Supreme Court case involving federal wilderness designations in 1990.
In a 5-4 ruling, the justices rejected the National Wildlife Federation's objection to BLM's land-use designations on more than 1,200 parcels of federal land in the West, saying courts are "not the appropriate venue to air such generalized grievances about the day-to-day operations of federal agencies."
Advising the conservationists to take their concerns to Congress or pursue administrative channels at the Interior Department, the high court ruled they "cannot seek wholesale improvement of a program by court decree."
That logic has driven numerous cases since then, the horse campaign said, including a 2004 Supreme Court ruling against the Southern Utah Wilderness Alliance's challenge of off-road access to wilderness areas. Courts "can only compel an agency to take action — it cannot direct the agency how to act," the ruling said.
In 2010, the 9th U.S. Circuit Court of Appeals refused the Hells Canyon Preservation Council's bid to force the Forest Service to designate wilderness areas in the canyon along the Snake River dividing Oregon and Idaho. It said courts can compel an agency to act "only in situations where an agency has ignored a specific legislative command."
The horse campaign notes in Thursday's filing the San Francisco-based appellate court offered similar reasoning in its most significant recent wild horse decision, ruling 2-1 in April against In Defense of Animals' challenge of the roundup of 1,600 mustangs along the Nevada-California line in 2010.
"In sum, the BLM's actions fell within the discretion which courts have recognized the BLM has to remove excess animals," Judge Carlos Bea wrote.
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