On Wyoming's Range, Water Is Scarce but Welfare Is Plenty

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Western ranchers frequently enjoy vast discounts on public grazing fees. So why are they so angry about sharing space with America's beloved wild horses?

wildhorses_bnr.jpgReuters

As Wyoming swelters under the summer heat, as the ash and dust from its forest fires spread out across the Western states, as a sustained drought deepens the fissures in its barren expanses of scrub and rock, the battle over the fate of thousands of its wild horses has just exploded anew in court. Here is a nasty bit of litigation worth watching for many different reasons, not the least of which is that may help more people better understand the magnitude of the economic and political forces which are currently arrayed against the federally-protected American mustang.

The short version is a familiar one. Area ranchers, who never wanted the horses around to begin with, now want the herds gone completely from a vast "checkerboard" patch of public and private land in southwestern Wyoming, in and around Sweetwater County, near Rock Springs. They allege that the Department of the Interior's Bureau of Land Management has "utterly failed" to limit the number of wild horses which roam these million-acre (or two-million acre) ranges. We have a legal right to declare we want no horses on these land, the ranchers claim, and it's now time we exercised that right.

Advocates of the wild horses, who have intervened in the case, argue that the ranchers have no such legal right to push the BLM into removing more wild horses than they already have from Wyoming's public and private lands. These tribunes say that federal officials-- led by Interior Secretary Ken Salazar himself, a longtime Colorado rancher-- have aggressively reduced Wyoming's herds, often at great peril to the horses and always at significant expense to taxpayers, who pay for both the roundups and the massive holding facilities where tens of thousands of wild horses now are corralled.

And the feds? As usual, the government is caught betwixt and between. The BLM evidently cannot remove Wyoming's wild horses fast enough to satisfy the ranchers. And it clearly cannot keep enough of the herds near Sweetwater County to satisfy the horse advocates. Indeed, one of the most disappointing aspects of the flurry of briefs that have been filed in Rock Springs Grazing Association v. Salazar is the faux indignation offered by federal officials in defense of their herd management policies -- as if they didn't know why this lawsuit came about the way it did.

THE PRELUDE

Even the lead-up to the litigation has dark meaning here. The lawsuit seems to have been driven from within. In early 2010, Interior Department Assistant Secretary Sylvia Baca, the former oil company executive, candidly told the ranchers that they would have to sue her own agency to vindicate their claimed right to get rid of the horses. This is the same Sylvia Baca, a BP veteran, whose subsequent work for the Interior Department's Minerals Management Service has worried environmentalists and others concerned about the oil and gas industry's influence on the agency required by law to oversee it.

The parties appear to disagree on precisely what Baca said, however, and there even is some room between versions offered by the ranchers. Last year, when the lawsuit first was filed, the Grazing Association wrote in its complaint that Baca, then working for Interior on wild horse issues, "attributed the [BLM's] failure to comply [with horse removal requirements] with external influences on the Department and Congress, and the lack of funding due to the need to contract for sanctuaries. The Assistant Secretary stated that litigation would be necessary to secure additional funding for wild horse gathers."

In their opening brief, however, the ranchers have toned it down a bit. They write: "The Deputy Assistant Secretary advised RSGA that DOI policies and priorities made it difficult to offer a solution short of litigation." Whatever the exact words, Baca's advice to the ranchers represented an appalling lack of neutrality about the Interior Department's political and legal mission (which is, in part, to avoid encouraging private parties to sue). More than that, it represented an overt act of hostility toward the federal government Baca still serves. Neither the feds nor the horse advocates mentioned it in their briefs.

THE RANCHERS

The lawsuit began last year but it took a while to heat up. At the end of May, the Rock Springs Grazing Association filed a motion asking a federal trial judge to enter an order forcing the BLM to remove all of the horses in the Checkerboard, an interconnecting pattern of public and private land that dates back to the days of the Pacific Railways Act of 1864. Not only is such removal required by federal statute, the ranchers argue, the feds still are bound by the terms of a 1981 federal district court order which had settled an earlier generation of litigation over the area's wild horses.

The first half of the Grazing Association's opening brief is interesting, and particularly candid for a court document, because it highlight the two strains of thought and belief that seem to animate the ranchers' dislike for the wild horses and their human advocates. The anger and frustration the ranchers feel toward the federal government practically shoots itself off the pages. And so does the impression that the ranchers never truly accepted the letter or the spirit of the Wild Free-Roaming Horses and Burros Act of 1971, the Nixon-era federal law that first tried to protect the horses from humans.

The Grazing Association argues that the Wild Horse Act requires federal officials to remove wild horses from private land. Since the ranchers can't by law build fences separating their land from public land, the Grazing Association says the horses must go for the sake of land conservation. The ranchers contend that because they have reduced grazing of their own livestock" during the current drought it is "outrageous" that the BLM has performed only "token gathers" of wild horses. The tone of the entire brief is contemptuous-- and why not? The ranchers seek to hold the feds in civil contempt.

THE FEDS

One month after the ranchers filed their motion, the feds responded. The government's brief is dry and spare and focuses a great deal upon civil procedure, administrative law and Washington's version of events surrounding that 1981 court order. Indeed, there is a long history of conflict here between the ranchers and the feds, decades of promises and suspicions, of negotiation and disappointment. All of it is, at least in part, a result of the legislative compromises built into the original statute-- as well as new economic forces unleashed by subsequent amendments like this dubious one in 2004.

The feds say that the Wild Horse Act does not require them to remove wild horses from private land any faster than is "practicable" (to use the pragmatically bureaucratic word contained in the Bureau's own regulations). And they argue that the Grazing Association now is precluded from relying upon the 1981 court order to force the wild horses out any quicker than they already have been forced out by massive roundups In 2011 alone, the feds note in their brief, they removed more than 3,000 wild horses from the five "herd management areas" that are of concern to the Grazing Association.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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