Authors: Kelsey Stangebye J.D. – Michael Harris J.D.
Each year thousands of wild horses are rounded-up and removed from public lands in the western United States. The majority of these horses are sent to holding facilities and maintained at great cost to American tax payers. Today, approximately 80,000 wild horses are being held off the range. As a result, these horses are unable to perform the important beneficial ecological functions on the American landscape, such as the grazing of grass and brush wildfire fuels, they have adapted-to after millions of years.
Federal land managers at the Bureau of Land Management (‘BLM’) and the United States Forest Service (‘USFS’), who are also responsible for the humane management of protected American wild horses under the Wild Free-Roaming Horses and Burros Act (Public Law 92-195), are limited in their management options for wild horses by Section 1339 of the Act. These managers are prohibited by Section 1339 from relocating wild horses from herd areas that may have determined ‘excess’ populations and/or are in conflict with commercial enterprises and rewilding them into appropriate wilderness areas outside designated wild horse management areas. In a sense, wild horses are ‘boxed-in’ based upon a Law that in many ways has become obsolete as pressures for increased public lands use in some areas create conflicts for wild horses.
There is, however, an underutilized legal path for wild horse managers at the BLM and USFS to work with local and state governmental entities to relocate and rewild American wild horses into appropriate state and county managed wilderness areas. Local and state government entities could request the Bureau of Land Management (or the USFS) to transfer BLM (or USFS) horses to public lands that are not managed within the BLM herd management areas. The legal transfer could essentially rewild the horses into remote wilderness areas to graze on public lands and provide an essential wildfire grazing management tool for local and state governmental entities in areas that are manifestly unsuited for cattle or sheep wildfire grazing.
- Background of the Humane Transfer of Excess Horses
As of 2017, Congress has considered passage of a new law called the Humane Transfer of Excess Animals (now Section 417, formerly 313) (hereinafter HTEA). This law would authorize federal, state and local governmental entities to formally request excess wild horses from the Bureau of Land Management so that these approved governmental entities may use wild horses as “work animals”. By definition, excess wild horses are horses that have been removed by the BLM from the public range and are managed by the BLM in holding corrals. There is not a specific statutory definition of “work animal” as it pertains to this HTEA passage. A governmental entity could submit a request for “work animals” for horses to be used for grazing management and wildfire mitigation.
- Why would the Humane Transfer of Excess Animals benefit local county and state agencies?
The HTEA could serve as a legal path for a wild horse rewilding pilot program that would demonstrate that wild horses can be managed in an ethical manner in appropriate wilderness areas, removed from areas of economic conflicts, as wild and free and benefit the surrounding environment and the local resident taxpayers. The transfer program is free for the requesting state/local governmental entity. There is minimal financial risk to the requesting governmental entity to obtain the excess wild horses as the work animals would be used in remote wilderness grazing areas not suited for cattle or sheep, or other wildfire fuels management methodologies. The horses could dramatically reduce the costs for wildfire mitigation through their natural grazing patterns which benefits a multitude of stakeholders.
By utilizing the Humane Transfer of Excess Animals, there is a logical opportunity to use ‘cooperative federalism’ to develop a pilot program to transfer excess wild horses from BLM holding corrals to be used as “work horses” to graze naturally in remote forested areas in western states. Rather than county, state and other local government agencies exclusively engaging privately owned cattle and sheep into wildfire grazing through memorandums of understanding ‘MOU(s)’, especially into environmentally sensitive wilderness areas where ruminant livestock grazing may be ecologically inappropriate.
- Summary of the Transfer Requirements and Legality of the Humane Transfer of Excess Animals.
The Instruction Memorandum (IM) dated April 21, 2022, outlines the policy and guidance for the federal, state and local authorities to request to the BLM to transfer excess wild horses and burros. According to the BLM’s website, this IM provides legal grounds for the BLM to review applications and approve transfers of wild horses to the approved governmental applicants as the IM “supersedes the Adoption of Wild Horses and Burros Handbook, H 4750-2, Chapter 2 – General Adoption Requirements and Procedures, Section A – 3 (Adoption Application – Adoptions to Other Federal Agencies, States, Counties and Cities).”
The requirements and standards are generally minimal and there are not any costs associated with the transfer application/ request. The governmental requestor makes arrangements with the BLM to pick up the approved horses and is responsible for shipping. The transfer could be utilized by the requesting governmental entity “immediately.” Additionally, given the desire of thousands of wild horse advocates to save wild horses via rewilding, there is likely cooperative private funding that could ostensibly cover transport costs for the requesting local governmental agency.
The governmental agency must provide its general clerical information including name, address, description of the facility available to shelter the wild horses. The application needs to specify whether the wild horses need to be trained (i.e. halter and or saddle trained), a description of the work that the “work animal” would be used for, an affidavit outlining that the horses will not be destroyed, sold or used in a way that results in their destruction for commercial products. Additionally, the requestor is required to sign an affidavit confirming that if euthanasia is required due to “severe injury, illness or advanced age,” then it must be upon recommendation of a licensed veterinarian. There is not a shortage of work animals asthere are over 80,000 BLM horses managed in off-range holding sites. This program could be utilized immediately in anticipation for Spring range management and fire mitigation practices.
Once excess horses are transferred to the requesting governmental entity, then horses would lose their federally protected status as a wild free-roaming horse or burro as defined in the Wild Free-Roaming Horses and Burros Act. However, based on the language in the HTEA passage, the governmental entity will be bound by contractual affidavits to manage and ensure the welfare of the wild horses obtained under the HTEA.
Now is the time for local and state governmental entities to request excess wild horses through the HTEA. This kind of passage would promote fiscal soundness, the humane treatment of wild equines while benefiting the local and regional stakeholders, as well as governmental stakeholders with their public land grazing management. All questions regarding a transfer request should be directed to Paul McGuire, Acting Off-Range Branch Chief, Wild Horse and Burro Program at (405) 826-3036 or by email at [email protected].
About Michael Harris:
Mike Harris practices environmental, conservation and wildlife law. In addition to having represented clients in numerous court and administrative proceedings across the United States, Mike has taught courses in environmental law, land use law, air pollution law and administrative law. Mike has been part of the advisory board of the all-volunteer 501-3 nonprofit Wild Horses Fire Brigade since 2022. Mike currently practices law at BCM Environmental & Land Law, PLLC (‘BCM’). Before joining BCM, Mike was an Associate Professor and Director of the Environmental Advocacy Clinic at the Vermont Law and Graduate School. Prior to that he lived in Colorado where he was General Counsel and Director of the Wildlife Law Program for Friends of Animals, an international non-profit animal organization. From 2008 through 2014, Mike was an Assistant Professor of Law at the University of Denver, Sturm College of Law. He has also worked for Earth Justice, the South Coast Air Quality Management District in Los Angeles, and several private law firms. Mike received his Juris Doctor from the University of California—Berkeley School of Law. He earned a Masters in the Study of Law from Vermont Law School, and a Bachelor of Arts from Pitzer College.
About Kelsey Stangebye:
Kelsey Stangebye received her Bachelor of Arts from the University of South Carolina, majoring in Political Science. She graduated cum laude from Northern Illinois University College of Law and was the Research Editor for their Law Review. Her article “Cowboys Gone Rogue: The Bureau of Land Management’s Mismanagement of Wild Horses in Light of its Removal Procedures of ‘Excess’ Wild Horses,” examined the use of public land in the western states. As a law student, Ms. Stangebye worked as a student attorney in the NIU Foreclosure Mediation Clinic, where she represented homeowners in their foreclosure mediations through the Kane County Residential Foreclosure Mediation Program. She was nominated by the clinical faculty at Northern Illinois University College of Law for the “Outstanding Clinical Student Award” for her work in the legal clinic. Additionally, she participated in the ABA Negotiation Competition, which focused on representing corporate and individual clients in business negotiations. Ms. Stangebye’s team bested the two highest-ranked Illinois law schools in the competition. She is admitted to practice law in the State of Illinois and is a member of the Illinois State Bar Association and the Chicago Bar Association. In addition to practicing law at Shawn Bolger Ltd in Chicago IL, Kelsey also serves on the advisory board of the all-volunteer 501-c-3 nonprofit Wild Horse Fire Brigade.
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