A decades-long effort to reform the federal program that manages free-roaming wild horses and burros throughout the West faces a new challenge in a recent lawsuit filed by the American Wild Horse Campaign (“AWHC”).

The Wild-Free Roaming Horses and Burros Act (“Act”) vests the Bureau of Land Management (“BLM”) with the responsibility to manage and protect wild horses and burros across nearly 27 million acres of public land in the West.[i] According to recent surveys, 100,000 wild horses and burros live on these lands,[ii] yet the BLM estimates that the area can only sustain about 27,000.[iii]

Wild horses and burros are protected species under federal law.[iv] That status, combined with the absence of any natural predator, has allowed the population to skyrocket—so much so that today there are more wild horses and burros on public lands than at any point in the last century.[v]

Conservationists, animal welfare groups, and the federal government all agree the population has reached unsustainable levels.[vi] As they roam, wild horses and burros graze the land to depletion—meaning that vegetation and water sources are scarce—choking the supply of essential sustenance for other animals and themselves.[vii] But while the various stakeholders agree on the problem, there is no consensus on the solution.

In response to the threat of starvation and ecological degradation, the BLM devised a series of plans to mitigate overpopulation, from containing and selling the wild horses to interested buyers, to contraceptive fertility control treatments to keep the populations at manageable levels.[viii] But each successive plan has faced budget constraints and opposition from advocacy groups like AWHC.[ix]

The AWHC, joined by Western Watersheds Project and the Cloud Foundation (together, “Petitioners”), mounted their most recent challenge to BLM’s wild horse and burro program in 2018. In their complaint, the Petitioners allege that BLM violated the Act and the Administrative Procedure Act (“APA”) when the agency decided to permanently remove all wild horses from over 700,000 acres of public lands in the Caliente Head Area Complex in Nevada.[x]

The Petitioners focused their challenge on two BLM decisions. The first, issued in 2008, determined that the appropriate number of wild horses in the Caliente Complex is zero, and the second, issued in 2018, authorized the agency to conduct a series of “gathers” to round up and permanently remove all remaining wild horses from the Caliente Complex.[xi]

The Act states that “wild free-roaming horses and burros are living symbols of the historic and pioneer spirit of the West” and, to that end, “shall be protected from capture, branding, harassment, [and] death,” because they are “an integral part of the natural system of the public lands.”[xii] Given this statutory mandate, the Petitioners claim that the BLM’s decision to remove wild horses from public lands, while also “continuing to allow substantial grazing by domestic livestock” is arbitrary, capricious, and an abuse of discretion, in violation of § 706(2) of the APA and, moreover, is contrary to the central principal of the Act.[xiii]

The lawsuit is currently on appeal before the D.C. Circuit Court, but at a recent hearing, the panel expressed their skepticism about the viability of the suit.[xiv] The Petitioners filed their complaint in 2018, but the judges pointed out that the statute of limitations for their claim had run in 2015.[xv] The D.C. District Court reached the same conclusion when it decided that the 2008 decision was a “final agency action” and was therefore subject to the statutory six-year statute of limitations.[xvi]

With the future of the lawsuit in doubt, and recognizing that the decision would affect only one herd management area in the 27 million acres subject to BLM’s control, the AWHC continues to engage in other forms of advocacy, including issuing a “First 100 Day Wild Horse Agenda to the Biden Administration,” which the group frames as an “urgent plea for reform of the [BLM’s] wild horse and burro management program, which is careening toward a fiscal and animal welfare disaster.”[xvii] The AWHC suggests the only way to reform is by ending the current practice of mass round ups and fertility treatments.

However, the AWHC’s proposal stands in stark contrast to the BLM’s 2020 report to Congress detailing how the agency intended to achieve a sustainable wild horse and burro program.[xviii] The BLM was required to submit a “comprehensive and detailed plan for an aggressive, non-lethal population control strategy” as a condition of the $21 million budget increase the agency received in appropriations bills passed in 2019 and 2020.[xix] BLM’s report concluded that the most effective way to manage and protect wild horses and burros, and conserve western lands, is to continue rounding up thousands of the animals and treating them with various fertility control methods.[xx]

With the court challenge unlikely to succeed and animal welfare groups and Trump-era BLM guidance at an impasse, it will be left to the Biden Administration to craft reforms that can balance protections both for wild horses and burros and the land they roam.

[i] 16 U.S.C. § 1332 (2021); Bureau of Land Management, About the Program, https://www.blm.gov/programs/wild-horse-and-burro/about-the-program (last visited Apr. 4, 2021).

[ii] Scott Streater, The lost plan to save the West’s wild horses, E&E News (Sept. 10, 2019), https://www.eenews.net/stories/1061111767; https://www.nytimes.com/2020/03/22/us/mustang-crisis-west.html.

[iii] Id; Dave Phillips, A Mustang Crisis Looms in the West, N.Y. Times (Mar. 22, 2020), https://www.nytimes.com/2020/03/22/us/mustang-crisis-west.html.

[iv] 16 U.S.C. § 1332 (2021).

[v] Phillips, supra note 3.

[vi] Id.

[vii] PERC, Reining in the Wild Horse Crisis, https://www.perc.org/about-us/what-we-do/current-initiatives/reining-in-the-wild-horse-crisis/ (last visited Apr. 4, 2021).

[viii] See Bureau of Land Management, Report to Congress: Management Options for a Sustainable Wild Horse and Burro Program 2–3 (2018), https://www.blm.gov/sites/blm.gov/files/wildhorse_2018ReporttoCongress.pdf; Streater, supra note 2.

[ix] Phillips, supra note 3.

[x] American Wild Horse Campaign v. Zinke, Civ. No. 18-1529, Compl. for Injunctive and Declaratory Relief, 1–2 (June 27, 2018), https://drive.google.com/file/d/1QR5LR8gc9rHORs9F1z05hIhz4-kmBQU9/view [hereinafter “Complaint”].

[xi] American Wild Horse Campaign v. Zinke, Civ. No. 18-1529, Memorandum Opinion, 9–11 (Feb. 13, 2020), https://drive.google.com/file/d/1qqfdXyd-sJ0olQw4N-oDow67p5WTOevV/view?usp=sharing [hereinafter “Memorandum Opinion”]. A “gather,” like the one performed on the Caliente Complex, is usually conducted by a team of helicopters that track and drive teams of wild horses into corrals, see Bureau of Land Management, Report to Congress: An Analysis of Achieving a Sustainable Wild Horse and Burro Program 8 (2020), https://www.blm.gov/sites/blm.gov/files/WHB-Report-2020-NewCover-051920-508.pdf [hereinafter “2020 BLM Report”].

[xii] Complaint, supra note 9, ¶ 73 (citing 16 U.S.C. § 1331 (2021)).

[xiii] Id. ¶ 80.

[xiv] Khorri Atkinson, D.C. Circ. Unlikely To Block Feds’ Wild Horse Removal Plan, Law360 (Feb. 22, 2021), https://www.law360.com/articles/1357182/dc-circ-unlikely-to-block-feds-wild-horse-removal-plan.

[xv] Id.

[xvi] 28 U.S.C. § 2401 (2021); Memorandum Opinion, supra note 10, at 15, 25.

[xvii] Press Release, American Wild Horse Campaign, Leading Wild Horse Protection Group Releases First 100-Days Agenda for Biden Administration (Jan. 13, 2021), https://americanwildhorsecampaign.org/media/leading-wild-horse-protection-group-releases-first-100-days-agenda-biden-administration.

[xviii] 2020 BLM Report, supra note 10, at 3–4.

[xix] Karin Brulliard, Spending bill includes funding for controversial wild horse proposal, Washington Post (Dec. 21, 2019), https://www.washingtonpost.com/science/2019/12/21/spending-bill-includes-funding-controversial-wild-horse-proposal/.

[xx] 2020 BLM Report, supra note 10, at 3–4.