Court or­ders restora­tion of 23,000 acres for wild horses

Land added in er­ror in 1980s still pro­tected

The Washington Times Daily - - POLITICS - BY STEPHEN DINAN

A fed­eral ap­peals court has de­liv­ered a vic­tory to wild horse en­thu­si­asts, or­der­ing the U.S. For­est Ser­vice to re­store 23,000 acres of crit­i­cal land as pro­tected horse coun­try in Cal­i­for­nia — and showed judges tak­ing an in­creas­ingly dim view of agen­cies’ de­ci­sion-mak­ing.

The gov­ern­ment had said the land was added by “ad­min­is­tra­tive er­ror” in the 1980s, and tried to erase it from the bound­aries of the pro­tected wild horse ter­ri­tory, but the U.S. Cir­cuit Court of Ap­peals for the District of Columbia said decades of his­tory of pro­tec­tion can’t be tossed out so eas­ily.

Judges or­dered the For­est Ser­vice to go back and redo the de­ci­sion, con­sid­er­ing what im­pact the era­sure would have on the horse pop­u­la­tion.

“This is a prece­dent-set­ting vic­tory mak­ing clear that fed­eral land man­age­ment agen­cies can­not ex­clude fed­er­ally pro­tected wild horses or other key uses of pub­lic lands with­out grap­pling with the im­pli­ca­tions of such ac­tions on the en­vi­ron­ment,” said Wil­liam S. Eubanks II, a lawyer who helped han­dle the case for a se­ries of chal­lengers.

The horse ad­vo­cates have been bat­tling the gov­ern­ment for years over wild horse roundups and pro­tected lands, and the fight over the Cal­i­for­nia area known as Devil’s Gar­den in the Modoc Na­tional For­est is the lat­est skir­mish.

Horses are pro­tected by what Judge Pa­tri­cia Mil­lett, who wrote the court’s opin­ion, called a “Ma­tryoshka doll of nest­ing fed­eral statutes.”

In the case of the Cal­i­for­nia land, the 23,000 acres con­nected two other pro­tected horse ter­ri­to­ries, cre­at­ing one large swath. But the For­est Ser­vice said the land was added to a map in the 1980s by mis­take and never should have been there.

It said re­mov­ing the land wasn’t a change in pol­icy, but rather just clean­ing up what the ac­tual pol­icy was sup­posed to have al­ways been.

The judges said decades of his­tory and prac­tice by the For­est Ser­vice can’t be swept away by call­ing the orig­i­nal de­ci­sion a mis­take.

“The ser­vice brushed aside crit­i­cal facts about its past treat­ment of and of­fi­cial state­ments about the bound­aries of the Devil’s Gar­den Wild Horse Ter­ri­tory,” Judge Mil­lett wrote.

The horse cam­paign­ers won an­other legal bat­tle last year when a fed­eral ap­peals court out west ruled that the Bureau of Land Man­age­ment, an­other fed­eral lands agency along­side the For­est Ser­vice, il­le­gally re­moved wild horses from Wy­oming ter­ri­tory.

On the other side are ranch­ers and state and lo­cal of­fi­cials who have pushed for horse re­moval, ar­gu­ing the wild horses are tax­ing the re­sources of the land.

The lat­est rul­ing is also a test of the courts’ level of def­er­ence to fed­eral agen­cies. While judges gen­er­ally re­spect agency de­ci­sions, in this case the three-judge panel showed skep­ti­cism, say­ing a mis­take is not the same as a de­ci­sion.

“There is no ‘oops’ ex­cep­tion to the duty of fed­eral agen­cies to en­gage in rea­soned de­ci­sion mak­ing,” the court con­cluded.

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