Fate of Oregon wild horses falls to Ninth Circuit
Monique Merrill
(CN) — Wild horse advocates on Monday asked a three-member panel of the Ninth Circuit to stop the U.S. Forest Service’s plan to remove 78 wild horses — more than half the local population — from a central Oregon forest.
“Our position is the agency has acted arbitrarily and capriciously in selecting which studies and which portions of which studies they will look at while ignoring the actual recommendations in some of their studies by their own experts,” attorney Sasha Petrova of the Portland-based Tonkon Torp firm, argued on behalf of the conservationist appellants.
Central Oregon Wild Horse Coalition sued three Forest Service officials and U.S. Department of Agriculture Secretary Tom Vilsack, accusing the agency of neglecting to consider all available data before approving a plan to remove two-thirds of the wild horses in the Ochoco National Forest in central Oregon.
The group says the Forest Service violated the National Environmental Policy Act and the Wild Horse Act by setting a new population limit — known as an AML, meaning appropriate management level — that would spur the herd’s extinction through drastic reductions and an irretrievable loss of genetic variability.
After a lower court sided with the Forest Service, finding the agency reasonably considered the available data, the Wild Horse Coalition appealed.
The Forest Service has managed wild horses in the area since 1975, when it set the population limit at 55 to 65 horses. That decision, Petrova argued Monday, clearly was not an accurate reflection of the actual herd size. “Now, of course, the time to challenge that decision, the AML, has long passed,” he said.
In May 2021, the Forest Service reined in the appropriate management level for Big Summit Wild Horse Territory to just 47 to 57 horses, which is less than half the existing population.
U.S. Circuit Judge Lawrence VanDyke told Petrova he had a background with wild horse cases, having served as a judge in Nevada. “There’s these AMLs, then there’s the actual number of horses,” the Donald Trump appointee said. “As I understand, that number has not been adhered to very much.”
VanDyke asked Petrova if his clients' issue was with the number the agency set or its intent to act on the number and thin the herd.
“The issue here that’s really significant is that the population has been significantly higher,” Petrova said, arguing that the range can sustain a much higher population than the federal government suggests.
Justice Department attorney Robert Stockman meanwhile argued that the Forest Service’s decision was a “small change in the overall goal and management direction” of the land. VanDyke quickly asked him to clarify whether the change was theoretically small or practically significant.
Stockman said the agency up until 2011 kept the horse population roughly in line with the appropriate management level set in 1975. Since 2011, however, the agency has removed just six horses. Removed horses are either sold or adopted.
The government attorney also countered a claim central to the Central Oregon Wild Horse Coalition's appeal: that in 2017, the conservationists offered via email to supply the Forest Agency with herd data, but never received a response.
Stockman characterized the argument as a “distraction” to the overall issues in the case.
“We’re not saying they didn’t send it, we just don’t know what happened,” Stockman said. He added that the issue was never brought to the agency’s attention and said the wild horse conservationists had the opportunity to submit data during the public comment period, but failed to do so.
“You have to submit the data you want considered in the comment period, that’s how you make sure it formally gets in the record and the agency considers it,” Stockton said. “It can’t be that [Administrative Procedure Act] review — a whole decision that’s taken years and had tons of formal processes — can get reversed because an email was missed.”
The wild horse conservationists argue that the Forest Service refused to consider data they “hand-delivered” to the agency, which showed a map of areas where horses and horse trails were seen over three winters. The materials supplement the agency’s winter range territory determination, which the conservationists consider key to population management decisions.
However, the agency argues that the information was unusable because it didn’t specify which sightings were during the winter that received less snowfall.
U.S. Circuit Judge Salvador Mendoza Jr., a Joe Biden appointee, pushed back on Petrova's argument that the burden lies on the agency, not the wild horse advocates, to seek the available data.
“If the statute says they’re supposed to consider all available information, which they did — they didn’t consider the information you had because you never gave it to them — so they technically are consistent with the statute,” Mendoza said.
The panel, which also included Donald Trump appointee U.S. Circuit Judge Daniel P. Collins, did not indicate when it would rule.