Progressives Plan New Lawsuit to Declare Feral Horses in Wyoming ‘Wild Animals’ Under Federal Endangered Species Act

The progressive group Friends of Animals (FOA) is planning a lawsuit to have the feral horses and burros roaming Wyoming declared an “endangered species” by the federal government under the federal Endangered Species Act (7 U.S.C. § 136, 16 U.S.C. § 1531 et seq) by 2015.

Mike Harris, an attorney for FOA, based in its regional office in Denver tells LandAndWaterUSA that the militants, under the provisions of the ESA, will file the lawsuit within 12 months or so from this week.

The group, headquartered in New York City, filed a petition late this past summer with the Secretary of the Interior, Sally Jewell, asking her to determine if the group’s claim that the feral horses – descendants of escaped horses from the Conquistador era – “substantially warrants” protection under the ESA, said Harris.

“This does not have anything to do with the resources of the agency,” said Harris. “This is a mandatory duty the agency has under the statute on our petition.”

Once the 12-month deadline passes, next year, the group plans to seek judicial review in federal court for a determination declaring the horses as “wild animals,” and also to request that they be deemed protected under the ESA, said Harris.

No Contact from Interior

“We filed the petition initially, and there is a 90-day deadline for them to make an initial determination under the statute,” said Harris. “It is our position that the 90-day deadline has passed, and no 90-day determination has been issued by the Secretary. We are likely to contact the Secretary of the Interior in the next four or five months to see the status of the petition. We do not expect, given their track record, to hear from them. We will then wait until the 12 months expires to proceed.”

The U.S. Appeals Court for the 10th Circuit late last month, in a ruling regarding the 800 horses from the Checkerboard Herd Management Area in Wyoming, ruled that the Department of the Interior’s Bureau of Land Management (BLM) could proceed with a planned roundup this fall of the feral horses, which in Wyoming appear to be mixed breeds of horses with different genetic histories, and phenotypes.

That case, a loss for the FOA, was just a precursor to the forthcoming litigation.

The Endangered Species Act (ESA) was signed into law by President Nixon on December 28, 1973, and progressives recently celebrated its 40th anniversary. The law is designed to protect critically imperiled animal species from extinction as a "consequence of economic growth and development untempered by adequate concern and conservation."

The Act is administered by the U.S. Department of the Interior and the U.S. Department of Commerce.

Animals are listed in the U.S. Federal Register – the daily diary of government regulations – under several categories. There is the most prominent listing “e = endangered,” for any species in danger of extinction throughout all or a “significant portion” of its range. There is also the designation of “t = threatened,” for a species that is likely to become an endangered species within the future throughout a significant portion of its range. Other categories include, the status of “C = candidate,” or a species under consideration for listing, and the status of “T = threatened due to similarity of appearance”(SA) to a species that closely resembles a species that is endangered, and XE, or “experimental essential member of a population of an endangered species.”

Clearly, there is a lot of room for mischief under these categories by regulators or courts, and more than 2,000 animals have been placed on the list during the last 40 years, after agitation, primarily petitions from private progressive groups, like FOA.

Inaccurate Listings

More than a dozen animal species have, however, been delisted due to discoveries of inaccurate data, which put them on the list improperly. This includes the northern flying squirrel and the gray wolf.

To combat the very expansive law and its regulations, which ranchers, farmers and other property owners have battled for decades, the Congress recently introduced a bill that would rein in the power of federal agencies to name a species endangered. The bill is called 21st Century Endangered Species Transparency Act.

Progressives worked for nearly 100 years to get the Endangered Species Act passed by Congress, even authoring the very idea of species “extinction” in late 1890s, as a follow-on to Charles Darwin’s theory of evolution from earlier in that century.
FDR paved the way for progressives to portray themsleves as champions of animals in 1941, in pushing through the Bald Eagle Protection Act as part of the late New Deal, before the start of World War II.

Years later, by 1965, during LBJ’s “Great Society” legislative period, Congress expanded the federal Land and Water Conservation Fund Act to authorize federal funds for the "acquisition of land, waters...for the preservation of species of fish and wildlife that are threatened with extinction."

The very next year, the Democratic Congress, and President Johnson, signed the law that set the stage for the Endangered Species Act, the Endangered Species Preservation Act of 1966, which provided protection, temporarily, for fish, fowl and certain native mammals in the U.S.

When President Nixon signed the ESA, seven years later, it was vastly expannded to provide protection for reptiles, mammals, amphibians, and even crustaceans. Pestilent insects were left off the list. Nixon made passage of environmental laws a priority in the 93rd Congress of the U.S., creating the Environmental Protection Agency, and expanding endangered species law, thus earning him the enmity of many Constitutional conservatives in the 1970s who said the federal government had no right to intervene in these state animal and property and water rights issues.

Progressive Dream Team

A progressive dream team, of sorts, was created to write the ESA, at the Nixon White House, including noted environmental activists Dr. Russell E. Train, Dr. Earl Baysinger, U.S. Commerce Deparatment lawyer Dick Gutting, and Dr. Gerard A. "Jerry" Bertrand, a marine biologist. These Nixon aides wanted to create a “Magna Carta” of environmental rights in the U.S., and that is what regulators, and progressive activists, in their wake, have been implementing ever since that time.

To be eligible for endangered species listing, these aides made the legal and scientific criteria very loose. A petitioner must present only one of five reasons for a creature to receive ESA protection under the law:

A) There is the present, or potential destruction, modification, or curtailment of its habitat.
B) An overuse of animals for commercial, recreational, scientific, or educational purposes.
C) The species is declining due to disease or predation by environmental rivals.
D) There is an inadequacy of existing regulations.
E)There are other natural or manmade factors affecting its continued existence.

Amazingly, during the endangered species listing process, economic factors cannot be considered, no matter what their cost to landowners, but federal agencies are instructed to act "solely on the best scientific and commercial data available."

President Reagan signed an Executive Order, 12291, which required an economic analysis of any government actions, including proposed listings on the Endangered Species Act. Congress rejected the executive order, however.

Most interestingly, under the petition provisions of the ESA, if a group like FOA filed information in a petition that is considered “substantial,” a status review is started, which is an administrative assessment of a species' biological status and threats, with three possible results: "warranted," "not warranted," or "warranted but precluded” by findings by the government.

Exponential Growth

Listings of endangered species have increased exponentially since the 1970s, following those flexible procedures. There were 47 listings during the Ford administration, 126 listings during the Carter administration, 255 listings during the Reagan administration, 231 listings during the George H. W. Bush administration, 521 listings during the Clinton administration, but the number decreased during the George W. Bush administration to 60 listings. The pace has picked up again during the Obama administration. Two years after taking office, President Obama reissued repealed regulations on a part of the gray wolf population, which resides in the Northern Rocky Mountains.

Findings of the government calling a species endangered are published in the Federal Register, making them the law of the land.
Over half of the habitat for listed species resides on non-federal property, though in the case of the feral horses, the feral animals quite often live on federal land and trespass on private property.

In many instances, the government, rather than simply listing an animal as endangered, may reach a so-called “safe harbor” arrangement with a private landowner, wherein the landowner “voluntarily” agrees to accommodate the animals on his property.
The Bureau of Land Management (BLM) reached this kind of a deal with ranchers and farmers in the 1990s in order to compensate the landowers for maintenance of feral horses, but the pact for Wyoming has never been implemented, and the ranchers and farmers have not been paid a penny of the millions of dollars in promised fees over the last 20 years by the U.S. government.

The feds are, per these failed promises, deadbeat debtors, according to ranchers.