Wild and Free-Roaming Horses and Burros Act of 1971
|Long title||An Act to require the protection, management, and control of wild free-roaming horses and burros on public lands.|
|Enacted by||the 92nd United States Congress|
|Effective||December 15, 1971|
|Statutes at Large||85 Stat. 649 (1971)|
|U.S.C. sections created||1331–1340|
|Sections 1332 and 1333 were modified by the Public Rangelands Improvement Act of 1978 (Public Law 95-514); Section 1338 was modified by the Federal Land Policy and Management Act of 1976 (Public Law 94-579); the Omnibus Parks and Public Lands Management Act of 1996 (Public Law 104-333) added Section 1338a.; and Section 1333 was again modified by the Fiscal Year 2005 Omnibus Appropriations Act (Public Law 108-447)|
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 covered the management, protection and study of "unbranded and unclaimed horses and burros on public lands in the United States."
By the 1900s, feral horse populations were in decline due to competition with livestock, and there was concern that the horses were destroying land and resources wanted by ranching and hunting interests. Pressure on federal agencies from the 1930s on led to a series of policies which severely reduced herd numbers; the policies were opposed by horse advocates such as Velma Bronn Johnston, also known as "Wild Horse Annie," who felt the measures were extreme and cruel. Their activism resulted first in the Hunting Wild Horses and Burros on Public Lands Act in 1959 and then to the Wild and Free-Roaming Horses and Burros Act in 1971. The Bureau of Land Management (BLM) and U.S. Forest Service manage these herds, and challenges to their management and implementation of the act are heard by the Department of the Interior's Board of Land Appeals. Although the BLM struggled to implement adequate herd management in many areas, in 1973 they began a successful program for rounding up excess numbers, and adopting out these captured horses and burros to private owners. This remains the primary method of removing excess horses and burros from managed land.
The act has been challenged numerous times in courts up to the level of the Supreme Court, and has been upheld in all instances. Charges have also been made that the BLM has turned a blind eye to the practice of private investors adopting feral horses for the purposes of slaughter, and courts have determined that the BLM may not ignore the intent of adopters. Congress has taken several actions that affect the act by including provisions in other bills. These provisions have addressed the manner in which horses may be rounded up and the method by which horses may be offered for sale or adoption. Throughout the 2000s, the BLM has struggled to prevent the horses adopted or sold to private individuals from being taken for slaughter.
The act provides specific protections to "all unbranded and unclaimed horses and burros on public lands of the United States," and makes it a crime for anyone to harass or kill these animals on federal land. It requires the departments of the Interior and Agriculture to protect the animals. Beginning with its enactment, it required studies of the habits and habitats of free-ranging horses and burros, permitting public land to be set aside for their use. In addition, the act required that these horses and burros be protected as "living symbols of the historic and pioneer spirit of the West", The BLM was tasked with identification of the areas where free-roaming horses and burros were found, no there was no specific amount of acreage set aside, and the Act required management plans to "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.
Although the Act uses the technical language "wild free-roaming" to describe the horses and burros protected under the Act, the BLM notes that "today's American wild horses should not be considered 'native'." All protected animals descend from domesticated horses and burros brought to the Americas beginning in the 1500s. Some escaped to the wild while others were released, and over the ensuing centuries, these feral animals adapted to the Western range. Due to the Act, the BLM manages horses and burros as "wild" regardless of their native or non-native status.
At the beginning of the 20th century as many as two million feral horses may have roamed the American West. However, no comprehensive estimate of feral horse numbers had been performed in the 19th or early 20th centuries, and thus the two million figure is speculative. However, horse numbers were in decline as domestic cattle and sheep competed with them for resources. Ranchers shot horses to leave more grazing land for other livestock, other horses were captured off the range for human use, and some were rounded up for slaughter. At the time the 1934 Taylor Grazing Act was passed, it was estimated that 150,000 horses roamed wild on public land subject to the Act. When that legislation was enacted, ranchers obtained individual grazing allotments and the fee to graze a horse was twice that for a cow. As a result, ranchers allowed unbranded horses to run loose rather than pay for them, and management of horses running on the range was initially left to Mustangers and local ranchers. It was not clear if there were too many horses, or that the land was incurring damage due to the presence of the horses.
By 1939, the U.S. Grazing Service (the predecessor to the BLM) began to directly hire people to remove horses from public land. The United States Forest Service periodically gave ranchers notice to round up their strays and thereafter shot any remaining horses. After World War II, horses were removed in larger numbers to meet the demands of the pet food market. By the 1950s, the free-roaming horse population was down to an estimated 25,000 animals.
Advocates for free-ranging horses were unhappy with the Forest Service and BLM's 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.
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 healthy 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.
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. As of 2013, the number of HMAs had been reduced to 179, covering 31.6 million acres. Three HMAs are dedicated solely to the protection of feral horses: the Pryor Mountains Wild Horse Range in Montana, the Little Book Cliffs Wild Horse Range in Colorado and the Nevada Wild Horse Range in Nevada. Another HMA is dedicated to the protection of feral burros, the Marietta Wild Burro Range, also in Nevada.
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. The BLM also uses limited amounts of contraceptives in the herd, in the form of PZP vaccinations; advocates say that additional use of these vaccines would help to diminish the excess number of horses currently under BLM management. Despite the success of the adoption program, the BLM has struggled to maintain acceptable herd levels, as without natural predators, herd sizes can double every four years. As of 2013, there were over 40,000 horses and burros on BLM-managed land, exceeding the BLM's estimated "appropriate management level" (AML) by almost 14,000. In addition to these on-range horses, there are 49,000 additional feral horses, also protected under the WFRHBA, living in off-range corrals and pastures.
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. In 2008, the BLM announced the possibility of euthanizing excess horses, a move which was quickly condemned by feral-horse advocates. As of 2013, the BLM is also researching the possibility of spaying some mares to permanently prevent pregnancies, and a new vaccine, the "first single-shot, multiyear wildlife contraceptive for use in mammals", has been approved for use by the Environmental Protection Agency.
The act, and the BLM's actions in implementing the requirements of the act, have been challenged in court on multiple occasions, in cases that have risen to the level of the Supreme Court. Objections have been varied, focusing on constitutionality, animal welfare and legal status of the animals. 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).
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. The use of helicopters in roundups has been challenged by feral-horse advocates on the grounds that they are dangerous to the horses. In 2011, a case was brought before the U.S. District Court in Nevada, regarding a roundup in that state, alleging in part that helicopter pilots flew too close to horses. The judge in that case issued a temporary restraining order against the "mistreatment of mustangs during BLM gathers", including inadequate distance between helicopters and animals. In 2013, the BLM issued new policy directives covering humane treatment of animals during roundups, including the use of helicopters, and stated that "further animal handling policy changes [are expected] in the future".
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. 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". In the 2006 Interior Appropriations Act, a rider was inserted that repealed the Burns amendment; however, in the 2007 Interior Appropriations Act the clause was re-added. As of August 2012, it had not been repealed.
In early 2005, the 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 (GAO) concluded BLM was not in compliance with the 2004 amendment, as the department had imposed limitations on the sale of excess horses to help ensure that they were not slaughtered (thus avoiding a public outcry). The GAO also stated that the BLM had a serious "dilemma" in the need to balance their charge to protect and preserve the feral horses with their charge to destroy or sell without limitation excess animals. It recommended that the BLM "develop cost-effective alternatives to the process of caring for wild horses removed from the range in long-term holding facilities and seek the legislative changes that may be necessary to implement those alternatives".
In February 2009, U.S. Representatives Nick Rahall, a Democrat from West Virginia, and Raul Grijalva, a Democrat from Arizona, introduced HR 1018, the "Restore Our American Mustangs Act". The act, if passed, would have amended the 1971 Act to increase available acreage for feral horses, develop additional sanctuaries, "[forbid] the killing of healthy animals, and [allow] greater public participation in herd management decisions." The bill passed a House vote on July 17, 2009 with a vote of 239 for and 185 against, but died in the Senate after being referred to the Senate Energy and Natural Resources Committee.
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- Pub.L. 92–195 Sec. (2)(b)
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- Raia, Pat (September 2, 2011). "Federal Judge Warns BLM Over Helicopter Use in Roundups." The Horse. Accessed 2013-09-21.
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- Kleppe v. New Mexico, 426 U.S. 529 (1976) at 534.
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- In January 2007, the United States Court of Appeals for the Fifth Circuit ruled that a 1949 Texas law banned the possession, transfer, or sale of horse meat. This ruling forced the two slaughterhouses in Texas to close. In September 2007, the United States Court of Appeals for the Seventh Circuit upheld a similar ban in Illinois, causing the plant located in that state to close. See: Empacadora de Carnes de Fresnillo v. Curry, 476 F.3d 326 (5th Cir. 2007), cert. denied, 75 U.S.L.W. 3569 (2007); Cavel International, Inc. v. Madigan, 500 F.3d 551 (7th Cir. 2007), cert. denied, 76 U.S.L.W. 3410 (2008); Government Accountability Office, p. 54–55, Accessed 2011-06-07.
- Government Accountability Office, p. 60–63, Accessed 2013-09-21.
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- "H.R. 1018 (111th): Restore Our American Mustangs Act." GovTrack. Accessed 2013-09-21.
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