Wild and Free-Roaming Horses and Burros Act of 1971

Free-roaming horses in Utah

The Wild and Free-Roaming Horses and Burros Act of 1971 (WFRHBA), is an Act of Congress (Pub.L. 92–195), signed into law by President Richard M. Nixon on December 18, 1971. The Act made it a crime for anyone to harass or kill feral horses or feral burros on federal land, required the departments of the Interior and Agriculture to protect the animals, required studies of the animals' habits and habitats, and permitted public land to be set aside for their use. In addition, the act required that Mustangs be protected as "living symbols of the historic and pioneer spirit of the West", and that management plans must "maintain a thriving natural ecological balance among wild horse populations, wildlife, livestock, and vegetation and to protect the range from the deterioration associated with overpopulation." Although feral horse ranges were principally for the protection of the horses, the land was required to be maintained for multiple use. The BLM was also permitted to close public land to livestock grazing to protect feral horse and burro habitat.

History

A feral horse grazes on the Pryor Mountains refuge.

By 1900, there were two to five million feral horses in the United States. However, their numbers were in steep decline as domestic cattle and sheep competed with them for resources. After the mid-1930s, their numbers fell even more drastically due to intervention by the U.S. government. The United States Forest Service and the U.S. Grazing Service (the predecessor to the Bureau of Land Management (BLM)) began to remove feral horses from federal land. The two agencies were concerned that there were too many horses on the land, which led to overgrazing and significant soil erosion. Ranchers wanted the feral horses removed because they were grazing on land ranchers wanted to use for their own livestock. Hunters were worried that as horses degraded range land, hunting species would also suffer. It was not clear that there were too many horses, or that the land was incurring damage due to the presence of the horses. Nonetheless, both agencies responded to political pressure to act, and they began to remove hundreds of thousands of feral horses from federal property. From 1934 to 1963, the Grazing Service (and from 1946 onward, the BLM) paid private contractors to kill Mustangs and permitted their carcasses to be used for pet food. Ranchers were often permitted to round up any horses they wanted, and the Forest Service shot any remaining animals.

Feral horse advocates were unhappy with the Forest Service and BLM's feral horse culling procedures. They argued that herding horses from the air or by motorized vehicle (such as motorcycles) terrorized the animals and caused numerous and cruel injuries. Led by Velma Bronn Johnston—better known as "Wild Horse Annie," a secretary at an insurance firm in Reno, Nevada—animal welfare and horse advocates lobbied for passage of a federal law to prevent this kind of hunting. Their efforts were successful. On September 8, 1959, President Dwight D. Eisenhower signed into law the Hunting Wild Horses and Burros on Public Lands Act (Public Law 86- 234, also known as the "Wild Horse Annie Act"), which banned the hunting of feral horses on federal land from aircraft or motorized vehicles.

Also at issue were BLM practices for managing horses in protected areas. Under BLM policy, ranchers could release a branded mare into a herd and then, the following year, round up the band the mare ran with for slaughter or sale. In Nevada, state law permitted ranchers to round up any unbranded horses on their private land and slaughter or sell them. Concerned about these practices, and about continuing horse hunts in unprotected areas, Johnston and her group began working to pass federal legislation to protect feral horses throughout the U.S. She was joined by a number of prominent people, including country music singer Judy Lynn, Gunsmoke actress Amanda Blake, and New Hampshire Union Leader publisher and conservative William Loeb III.

Implementation

Mustangs in Arizona

The WFRHBA gave jurisdiction over challenges to BLM and Forest Service management of feral horses and how the act is implemented to the Department of the Interior's Board of Land Appeals. The act also contained provisions for the removal of excess animals; the destruction of lame, old, or sick animals; the private placement or adoption of excess animals; and even the destruction of healthy animals if range management required it.

In fact, the destruction of health or unhealthy horses almost never occurred. The WFRHBA left range management policy unresolved in many respects, although it did specify that BLM and the Forest Service consult with state wildlife agencies. In practice, BLM struggled to accommodate the needs of feral horses among its other priorities (which included livestock grazing, prevention of soil erosion, and accommodating big game hunting). In November 1971, BLM announced a major effort to save the Pryor Mountains herd from starvation after a poor summer growing season left vegetation on the range stunted. By 1974, the herd on the Pryor Mountain range had increased by 17 percent over the 1968 level. But there was strong disagreement over whether the population had actually increased as much as this, if at all.

In 1973, BLM began a pilot project on the Pryor Mountains Wild Horse Range known as the Adopt-A-Horse initiative. The program took advantage of provisions in the WFRHBA to allow private "qualified" individuals to "adopt" as many horses as they wanted if they could show that they could provide adequate care for the animals. At the time, title to the horses remained permanently with the U.S. federal government. The pilot project was so successful that BLM allowed it to go nationwide in 1976. As of 2001, the Adopt-a-Horse program was the primary method of removing excess feral horses from BLM and Forest Service land.

A mare attends to her foal on the Pryor Mountains Wild Horse Refuge.

Pursuant to the 1978 amendments to the Public Rangelands Improvement Act (PRIA), the BLM established 209 "herd management areas" (HMAs) where feral horses existed on federal land. The Pryor Mountains Wild Horse Range was one of only three HMAs solely dedicated to feral horses. In January 1982, the director of BLM issued a moratorium on the destruction of excess adoptable animals. From 1988 to 2004, Congress also prohibited BLM from using any funds to destroy excess animals.

Legal challenges

The act was challenged in court for being unconstitutionally vague and unconstitutionally overbroad. The United States Court of Appeals for the Ninth Circuit upheld the act in all regards in United States v. Johnson, 685 F.2d 337 (9th Cir. 1982). See: Iraola, p. 1072.</ref> In November 1996, Congress passed the Omnibus Parks and Public Lands Management Act, which authorized BLM and the Forest Service to use helicopters and motor vehicles to round up and transport feral horses on public lands.

There were strong disagreements over the nature of the horses. Many ranchers and hunters considered feral horses to be an invasive species, or at least an introduced species. While conceding that federal law protects the animals, these individuals also argued that economic needs, such as livestock grazing, should take precedence over the horses. But advocates for free-roaming horses argued that horses were native to North America and eliminated by paleolithic human beings, and as a native wild animal they should be protected like the grizzly bear or bald eagle. To test which definition applied to feral horses, in 1974 the New Mexico Livestock Board seized 19 free-roaming feral burros which were preventing cattle from using a watering hole on federal land. The United States District Court for the District of New Mexico held that, under the Property Clause of the U.S. Constitution, Congress could regulate wild animals only to protect public land from damage. The case went to the Supreme Court of the United States. In Kleppe v. New Mexico, 426 U.S. 529 (1976), the Supreme Court ruled that these free-roaming horses and burros were, in fact, wildlife, and it rejected New Mexico's narrow construction of the Property Clause. Ranchers continued to litigate the issue, however. In the early 1980s, ranching interests won a ruling from the Department of the Interior that feral horses who ate grass or drank water which ranchers had leased had "taken" these resources from the ranchers in violation of the "takings clause" of the Fifth Amendment to the U.S. Constitution. But in Mountain States Legal Foundation v. Hodel, 799 F.2d 1423 (1986), cert. den'd. 480 U.S. 951 (1987), the United States Court of Appeals for the Tenth Circuit said that a wild animal was not an "agent" of the federal government and hence could not be found guilty of "taking" the ranchers' leased grass or water.

In March 1987, the Animal Protection Institute sued the Department of the Interior, arguing that BLM was turning a blind eye to "adopters" who obtained horses with the intent to slaughter. In Animal Protection Institute v. Hodel, 671 F. Supp. 695 (1987), the United States District Court for the District of Nevada held that BLM could not ignore the intent of adopters. The decision was upheld by the Ninth Circuit Court of Appeals in Animal Protection Institute v. Hodel, 860 F.2d 920 (1988). In 1997, the Animal Protection Institute and BLM signed an out-of-court settlement under which BLM would require individuals to sign an affidavit stating they had no intent to sell the animal for slaughter or for use as rodeo stock. The settlement also required BLM to establish rules requiring horse slaughterhouses to maintain paperwork on horses for no less than one year and to report any horses to which clear title was not established. BLM also agreed to no longer permit adoption by proxy or power of attorney. But the district court refused to enforce this settlement in 2000, leaving the issue unresolved.

Subsequent Congressional action

In 1976, Congress included a provision in the Federal Land Policy and Management Act that permitted the humane use of helicopters in capturing free-roaming horses on federal land, and for the use of motorized vehicles in transporting them to corrals. When problems with the Adopt-a-Horse program emerged and the BLM was accused of allowing too many adoptions so as to deplete feral horse populations on federal land and allowing "adopted" horses to sell for slaughter, in 1978 Congress passed the Public Rangelands Improvement Act (PRIA). The PRIA limited adoptions to only four horses a year per individual and allowed BLM to relinquish title to the horse after one year (during which inspections regarding the animal's treatment were to occur). The law also required BLM to inventory all feral horse herds, scientifically determine what constituted "appropriate" herd levels, and determine through a public process whether "excess" animals should be removed. Congress further amended PRIA in 1978 to require updated herd counts.

In 2004, Republican Senator from Montana Conrad Burns inserted a rider into the Consolidated Appropriations Act of 2005 (a 3,000-page omnibus appropriations bill) which permitted BLM to sell excess animals more than 10 years old or which have been offered for adoption three times. The amendment also required that excess, unadoptable horses "shall be made available for sale without limitation." Burns was reportedly acting on behalf of ranching interests, who wished more of the horses removed from federal land. Although the legislation (signed into law by President George W. Bush) was described by one media outlet as "undercut[ing] more than three decades of lobbying and legislative action aimed at protecting America's wild horses from slaughter", as of May 2011 it has not been repealed.

In early 2005, BLM discovered that some of the excess wild horses it had sold had been slaughtered. BLM suspended the sales program in April 2005 and resumed them in May 2005 after implementing new requirements to deter buyers from slaughtering the animals. In the fall of 2007, the last three horse slaughterhouses in the United States closed. However, BLM procedures do not ban the export of wild horses for sale and slaughter outside the United States.

In 2008, the Government Accountability Office concluded BLM was not in compliance with the 2004 amendment. BLM had imposed limitations on the sale of excess horses to help ensure that they were not slaughtered (thus avoiding a public outcry).

References

• Evans, J. Warren. Horses: A Guide to Selection, Care, and Enjoyment. New York: W.H. Freeman/Owl Book, 2002.
• Flores, Dan Louie. Horizontal Yellow: Nature and History in the Near Southwest. Albuquerque, N.M.: University of New Mexico Press, 1999.
• Glover, Kristen H. "Managing Wild Horses on Public Lands: Congressional Action and Agency Response." North Carolina Law Review. 79:1108 (May 2001).
• Government Accountability Office. Bureau of Land Management: Effective Long-Term Options Needed to Manage Unadoptable Wild Horses. GAO-09-77. Washington, D.C.: Government Accountability Office, October 2008.
• Iraola, Roberto. "The Wild Free-Roaming Horses and Burros Act of 1971." Environmental Law. 35:1049 (Fall 2005).
• Lynghaug, Fran. The Official Horse Breeds Standards Guide. Minneapolis: Voyageur Press, 2009.
• Pitt, Kenneth. "The Wild Free-Roaming Horses and Burros Act: A Western Melodrama." Environmental Law. 15:503 (Spring 1985).