Judge won’t block tribe’s mustang sale
August 16, 2013
RENO — A federal judge cleared the way Friday for a Nevada tribe to sell hundreds of mustangs that critics say were gathered illegally from public rangelands and likely will end up at foreign slaughterhouses after an auction this weekend.
U.S. District Judge Miranda Du rejected horse advocates' last-minute request for an emergency order to block today's auction.
The advocates claimed the horses are protected under the Wild Free Roaming Horses and Burros Act of 1971. However, the U.S. Bureau of Land Management says the Fort McDermitt Paiute-Shoshone Tribe is the horses' rightful owner, and that there's no evidence last week's tribal roundup of more than 400 animals included any taken from BLM land in the area along the Nevada-Oregon line.
The judge ruled the horse advocates failed to show the BLM shirked its legal responsibility or offer evidence beyond "speculation" that any of the horses in pens awaiting auction at the Fallon Livestock Exchange originated on federal land and deserve protection under U.S. law.
“The court still has concerns about jurisdiction to force BLM to intervene in a private sale.”
— Miranda Du
U.S. District Judge
"Even assuming the court considered these allegations generously … the court still has concerns about jurisdiction to force BLM to intervene in a private sale," Du said after an hourlong teleconference with lawyers for the horse advocates and the U.S. Justice Department.
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State agriculture officials have acknowledged some of the horses likely will be purchased for slaughterhouses in foreign countries if higher bidders don't step up at the auction.
Reno-based Wild Horse Education said in the emergency motion seeking a temporary restraining order that the BLM should be required to do DNA testing on the horses to prove their ownership.
Gordon Cowan, the group's lead lawyer, told the judge Friday photographs of the horses show many carry no brands and either wandered onto reservation land or were rounded up while on federally protected rangeland.
"The fact it's no longer on BLM property doesn't mean it loses its protect status. It's still a wild horse," he said. "I may be wrong, but there's one way to check and it's easy. You just have to pull some hair and have it analyzed."
Dan Bogden, U.S. attorney for Nevada representing the federal agencies, said in a court filing earlier Friday that the advocates' demand would amount to an illegal search and seizure of private property.
They effectively are asking the BLM to "halt a private sale of horses, seize and conduct genetic testing on all wild horses currently in private hands … sell horses that this accounting reveals to be genetically distinct from wild horses; and enjoin sovereign entities not currently before the court from removing wild horses from public land, an act which is already a criminal offense," he wrote.
Du raised concerns that the horse advocates waited until the last minute to file a motion seeking the restraining order to create an emergency situation. She declined to hear arguments from lawyers for two other coalitions that also filed motions for emergency orders Friday.
In one, the North Carolina-based American Wild Horse Preservation Campaign, Wyoming-based Western Watersheds Project, Colorado-based Cloud Foundation and California-based Return to Freedom, said the government must take "all necessary steps to ensure that all wild horses currently located at the Fallon Livestock Exchange sale yard are identified and returned to the public lands as soon and as humanely as possible."
In another, Citizens Against Equine Slaughter of Ashland, Ore., and Protect Mustangs of Berkeley, Calif., claimed that the federal agencies violated federal law by failing to conduct the necessary environmental analysis of the roundup's potential impact to the range.
Tribal chairperson Maxine Smart said all the horses gathered were on reservation land. She said some belonged to tribal members who died in recent years, and their families have claimed them.
Smart said an overpopulation of the animals is causing harm to the health of the range and posing a threat to public safety. She said she is disappointed critics are "spreading outright lies" about the operation.
"Our dignity is at risk," she said. "We are proud. We love horses just as much as anybody, but when they pose problems to the rangelands and the roads on the reservation that becomes a concern to us."
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