Our team is working hard on active litigation that addresses management planning and welfare rules. WHE carries a handful cases in federal district court that address numerous subjects. When you enter into any discussion about the law, language is important. Sometimes the public can get confused with the formal definition of a word when used in crafting or carrying out law.

One of our cases addresses gaining an enforceable welfare policy, formal rules. Other cases address a process called Herd Management Area Plans (HMAP) that would simply open up the actual conversation about managing wild horses and burros, not masquerading population control as management.

By questions we receive in our inbox (and comments on social media), the language we are using seems to confuse some of our readers. We hope this article can help you understand so you are better armed when you speak to your lawmakers.

We apologize for not being able to answer all of your questions individually. WHE is not a big organization with staff, we have no corporate or federally grant funding. However, we have always taking on ground breaking tasks and push precent on the frontline of the fight. We hope the following article gives you a bit of insight on what our team is focused on.

Enforceable Rules (from reginfo.gov)

Rulemaking is the policy-making process for Executive and Independent agencies of the Federal government. Agencies use this process to develop and issue Rules (also referred to as “regulations”).

The process is governed by laws including but not limited to the Administrative Procedure Act (APA) (5 U.S.C. Chapter 5), Congressional Review Act, Paperwork Reduction Act, Regulatory Flexibility Act and can lead to a new Rule, an amendment to an existing Rule, or the repeal of an existing Rule. Executive Orders such as 12866, 13563, and 13579 also establish principles and guidance for the rulemaking process.

You can get answers to other questions by clicking the government portal HERE.

When we use the phrase “enforceable welfare rules” we are talking about opening the welfare standards through a public and transparent process of rulemaking. Right now, BLM is using a simple set of internal standards they developed as a “test” or Beta version of what should have become an enforceable policy. BLM simply stopped short of following standard process that would be used for any other program: rulemaking. They simply typed the word “permanent” onto the Beta version without putting it out for review, public comment and then finalizing enforceable rules (policy).

As WHE continues the fight we began in the courts to gain an enforceable welfare policy, you can also take action. We made it easy: Just Click HERE

Learn more about the long battle to get an enforceable welfare policy HERE. It seems an absurdity that rulemaking is done for everything from animals raised for slaughter to displaying exoctic animals, but the federal government wonlt follow the process for protected wild horses and burros.

Code of Federal Regulations (CFR)

Regulations are issued by U.S. Federal government Departments and Agencies to interpret and implement laws passed by Congress.  Regulations are not laws themselves, but are legal directives written to explain how to implement statutes or laws. The CFR was created with the passage of the Federal Register Act and amended in 1937 to provide a “codification” of all regulations.

The CFR reflects the tenet that the federal government must follow an open public process when rulemaking (to add emphasis to the section above and the need for rulemaking for a welfare policy, a main tenet of the 1971 Wild Free-Roaming Horses anf Burros Act).

We have attempted to locate the “comment period” for rulemaking for the BLM Wild Horse and Burro Program (late 1970s) and will let you know what we find.

An example of one of the CFRs:

§ 4700.0-5 Definitions, (e) Humane treatment means handling compatible with animal husbandry practices accepted in the veterinary community, without causing unnecessary stress or suffering to a wild horse or burro.

However, the agency failed to define exactly what “compatible with animal husbandry practices accepted in the veterinary community” and has never codified a welfare policy. Instead, they have relied primarily on local “agriculture vets” including directly contracting with individuals that head things like the Cattlemen’s Association and are members of varios “anti-wild horse” organizations such as the Public Lands Council. BLM has primarily left “what is acceptable” under what they call “discretion of the BLM in charge of the operation.” Putting the determination of what is “ok” in the same hands that carry out an action has never been “ok.” (Like big tobacco in charge of determining if smoking is “ok.”) (Our litigation on this matter is explained a bit in the previous section on Rulemaking.)

The CFRs take on further importance for the public to understand, is they include actual management planning. All of the things you want to be able to address are already codified into law.

Example:

§ 4700.0-2 Objectives.

The objectives of these regulations are management of wild horses and burros as an integral part of the natural system of the public lands under the principle of multiple use; protection of wild horses and burros from unauthorized capture, branding, harassment or death; and humane care and treatment of wild horses and burros.

§ 4700.0-6 Policy.

§ 4710.3-1 Herd management areas.

Herd management areas shall be established for the maintenance of wild horse and burro herds. In delineating each herd management area, the authorized officer shall consider the appropriate management level for the herd, the habitat requirements of the animals, the relationships with other uses of the public and adjacent private lands, and the constraints contained in § 4710.4. The authorized officer shall prepare a herd management area plan, which may cover one or more herd management areas.

A number of our cases involved management planning. The Herd Management Area Plan (HMAP) is a foundational management document further outlined in the BLM Handbook and BLM has asked for funding every year (including in their reports to Congress) to undertake this process. BLM continues to skip this process and simply create ten-year roundup (population growth suppression) plans instead of ever outlining goals/objectives and when a roundup and impacts from fertility control (including sterilization). The HMAP is not a discretionary document, it is mandated. BLM does not deny they must do them. BLM simply claims the mandate does not say “when” they need to do them. We are battling this out in the courts, now. Will the courts agree that over 50 years after the law passed without HMAPs is “undue delay?” We will keep you posted.

When you comment on a “Gather-EA” (Environmental Assessment), many if you will get a reply from BLM that your comment is not “relevant” to the EA. If you are asking for information on Appropriate Management Level (AML, or how they came up with the number), forage allocation, fragmented habitat (fences), water improvements, impacts to natural behaviors from a specific drug or sterilization, etc., your comment is not “relevant” to removal. However, your comment is the essence of management. A comment relevant to an HMAP that was skipped entirely.

The most common example we see the public use from the CFR:

§ 4710.5 Closure to livestock grazing.

Determining what might trigger closure to domestic livestock (discretionary private use of public lands), would be determined in an HMAP. You have been given absolutely no place where your comment would be “relevant.” BLM has simply skipped that place in the process for 40 years for the vast majority of our herds.

The environmental trigger for closure to livestock to protect habitat for wild horses and burros (that cannot legally leave the area behind the artificial boundary lines) is increasingly important with climate change. Smaller herds are being particularly impacted by repeated removal to genetic bankruptcy as forage production decreases and there are no parameters to protect the habitat necessary to preserve them.

We have several federal court actions on this front. Two address places where BLM has never created any HMAP and never disclosed how they even set AML in those areas. BLM has substituted ten-year “Gather-EAs” where there has never even been any update on environmental factors as they slam these herds down to non-viable levels and further place these animals in jeopardy by approving longterm fertility control that will render mares sterile for their lifetimes. Another case addresses an area BLM did do an HMAP in 1983, but never followed up on any of the studies or range improvements outlined and simply replaced the HMAP (for over 40 years) with removal plans that do not tier to any new data after the 1983 HMAP outlined severe deficiency.

Stone Cabin Grays, showing color change, at risk because BLM simply skips HMAPs

We hope this article helps to gain a deeper understanding of the work our team is doing, right now.

We may not have a lot of time to do social media, gimmicks and games, or answer all of the notes in out inboxes. However, we are working really hard to protect and preserve our wild ones.

We need your help to continue to document, expose, work toward reform with lawmakers and litigate. Our wild ones deserve to live free on the range and free from abuse.

Thank you for keeping WHE on the frontline in the fight to protect and preserve our treasured wild ones.