Ignoring the Rule of Law - RANGE magazinerangemagazine.com/features/winter-16/range-wi16-ignoring-law.pdf · Ignoring the Rule of Law Thanks to activists and feckless bureaucrats,

60 RANGE MAGAZINE WINTER 2015/2016

A s the wild-horse saga plays out onthe rangelands of the AmericanWest, there is a new episode almostdaily. The hourglass is turned over onceagain, starting the latest chapter in EurekaCounty, Nev., with a cast the same as it is inSweetwater County, Wyo., Cold Creek, Nev.,or Salt River, Ariz.federal governmentemployees, local politicians, ranchers, wild-horse activists, wildlife supporters, statewater regulators, lawyers, and judges.In February 2015, the BLM began an

orderly roundup of excess horses from theFish Creek Herd Management Area, afterfederal-agency prioritizing, environmentalreviews, demands by wild-horse activists,memoranda of understanding, and the exer-cise of something we now call the Compre-hensive Animal Welfare Policy. Thattriggered a modern-day range war, completewith death threats. After the roundup, amessage left on one ranchers phone says,You die if the horses arent released. Thelocal sheriff and FBI got involved, theytraced the call to an animal rights activist,knocked on her door, and told her to stop. The Eureka County commissioners are

concerned about their community, withdwindling revenues as gold prices drop andmining companies close shop, and decliningrevenues from its agricultural and ranchingindustries hit hard by a four-year droughtand deep cuts in grazing numbers by theBureau of Land Management.Prior to passage of the WHBAwhich

states that horses should be maintained atthe same levels and in the same places asfound in 1971there were 639,000 cattlerunning on Nevada ranges; now there are 32percent less. And when the law was passedthere were less than 10,000 horses in thestate. Since that time, close to a quarter-mil-lion horses have been adopted out from theranges by BLM and close to 50,000 more areon welfare in holding facilities or on farmsand ranches in the Midwest. Even so, thereare about 30,000 left on Nevada ranges whilethe BLMs appropriate management levelis 12,811. And thanks to the laws of naturethe herds double every four years.Under the WHBA, Herd Management

Areas (HMAs) are designated as those inwhich wild horses were found in 1971 atpassage of the actand they include feedand water resources to support the herds.Herd sizes were designated and AppropriateManagement Levels (AMLs) established,using scientific data to quantify the number

Ignoring the Rule of LawThanks to activists and feckless bureaucrats,

a lawless West is reemerging.By Rachel Dahl

Ranchers live closest to the land and the creatures that live there with them; cattle, sheep,rabbits, coyotes, sage grouse and horses. By definition they care deeply for nature andunderstand better than most of us the natural laws that direct life: eat, drink, repro-duce, age, die. Todays ranchers regularly provide feed and water for the feral horses that runon the same land where they run their cattle, helping to perpetuate the very system that isputting ranchers out of business. When too many wild horses flood the range, the Bureau ofLand Management cuts ranchers cattle numbers, impacting their ability to make a living,which in turn impacts their ability to provide feed and water for the horses. The laws in placeto control the horse problemthe Wild Free-Roaming Horses & Burros Act of 1971(WHBA), state water laws, and state brand lawsare being ignored and flaunted in favor ofcase-by-case decision-making by bureaucrats and special interests.

We are in trouble and the solutions are being ignoredthe solvers, marginalized.

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WINTER 2015/2016 RANGE MAGAZINE 61

of horses the land could sustain, while nothurting a century-old ranching industry.Before the gather in February 2015, there

were an estimated 549 horses on the FishCreek HMA, and Eureka County supportedthe original federal agency environmentalassessment that called for a roundup thatwould leave the range at AMLa maximumof 170 horses. But then the activists gotinvolved, stopping the gather before it wascomplete, and the county filed legal actionthat was pending as this is written.Kevin Borba is the rancher whose

ground and grazing permits overlap the FishCreek Herd Management Area. He comesfrom a long line of dairy farmers in the Cen-tral Valley of California, and dreamed ofbeing a cattle rancher. He and wife, Sue,ended up with their five kids on a little 219-acre patch of rock in Panoche. The kidswent to the one-room schoolhouse, and the

Borba family was part of the Central Valleystightly knit ranching community.But then solar energy came to town and

the ranches were up for grabs, getting soldoff for the development ofthe green-energy industry tomeet the needs of a statewhose elites are committedto divesting fossil fuels fromthe energy productionindustry. Over the years,increasing environmentalregulations have drivenmany California business-men, dairymen, and agricul-tural producers out of thestate, and Borba was no dif-ferent. He was happy to crossthe state line.With his muleskinners

hat pulled down low over hisears and his plaid shirtsnapped all the way up to hischin, Borba got way down deep in his Wran-glers and headed for Nevada. Little did heknow that the simple matter of a brand (his,the B Bar over a quarter circle) and the com-

plicated nature of waterlaw would weave theirway through what was tobecome a saga fit for day-time television, and cul-minate with a BLM BattleMountain manager sug-gesting Borba change hisrole and become a shoesalesman, and a BLMmanager in Ely telling thecowboy she would preferthat he run sheep.Another character in

the saga, Laura Leigh (lastname rhymes with peenot neigh), is the self-appointed wild-horseexpert and, depending on

the day and the issue, is either a venomouscritic or an official volunteer of and for theBLM. A woman Hollywood would have castas a schoolmarm, her issue-driven-propa-

ganda-producing-always-fundraising web-site spins the ongoing plight of wild horsesfrom an anti-ranching, anti-livestock pointof view.Leigh has been a thorn in the side of the

BLM for years, litigating at the drop of a hateverything from trap-site access and FirstAmendment rights to using hot-shots toload horses in the trailer, and now emergeswith VIP access to BLM wild-horse gathers,its data, on-site cameras, and water sources.(One rancher says he thinks shell probablyhave a BLM badge by next week and theyllgive her a pistol by Christmas.)When the February gather commenced,

it was Laura Leigh, with her officially desig-nated approved volunteer status, her ownobservation trailer, cell phone, and propa-ganda machine, who called short the gatherbefore it reached 170 AML. Apparently thehorses at Fish Creek are suffering stress andas a result their natural cycles are off, result-ing in an early crop of foals. Leigh cried foul

ABOVE: View from Hwy. 50 (The Loneliest Road in America) looking south toward the Fish Creek HMA.BELOW: Water is so scarce on this years desert that the horses are mostly sucking mudif they can get that.BOTTOM: Kevin Borba with the B Bar quarter cirle brand on his boots. Borba paid for permits for 924 cowsbut is only allowed to run 247. OPPOSITE: The stallion called Warrior has fought many other studs(including his own sons) to keep his mares to himself. His scars show a few of the battles.

The wild-horse volunteerwill probably have a

BLM badge by next week and theyll give her

a pistol by Christmas.A NEVADA RANCHER

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at the number of day-old babies that gotcaught up in the politics and the BLM caved,setting aside its mission to reach AML.Of the total horses gathered at Fish Creek,

102 of the mares were given a fertility controltreatment, branded with KB, and turnedback out on the range in spite of legal actionbrought by the ranchers and Eureka Countyto prevent a return of excess horses. Addition-ally, 81 of the gathered stallions were given a12 brand to signify for monitoring purpos-es the HMA to which they were returned,intact and able to make more babies.The problem is, if a person looks up

those two brands in the state of Nevada offi-cial livestock brand book, it says that the 12brand is registered to Kelly Burroughs inRuby Valley. According to Nevada law, andFlint Wright, the administrator of the Live-stock Identification Division of the NevadaDepartment of Agriculture, Burroughs isnow the legal owner of 81 stud horses gath-ered off the Nevada desert under the guide-lines of the WHBA. Should Burroughs be soinclined, he could legally catch any or all of

those horses and dispose of them in any wayhe sees fit.When Borba actually saw the brands on

horses out on the Fish Creek HMA thatoverlaps his Antelope/Fish Creek grazingallotment later, he met Shawna Richardsonin Ely and asked the wild-horse specialist forthe Battle Mountain BLM district what theKB brand stood for. As the story goes, in aclassic case of he said, she said (which shesays absolutely did not happen), Borba saysRichardson told him: We branded the studswith a 12 and the mares with a K. ThenBorba said, KB is my name. Am I going tosee horses with my initials on my range? Shereplied: We did that because we kicked buttand it meant we won and got to turn thehorses back out.Richardsons boss, state director John

Ruhs, said he wasnt going to waste time tofigure out if she really said it. We have to goback to core values of respect for others,integrity and accountability, and thats thekind of direction Ill give and if people cantdo that, theyll have a tough time.

It turns out, though, when Borbalooked up the KB brand in the stateregistry to see what it really meant,he found that it didnt even exist. Soin April 2015, in accordance withstate brand laws, he registered theKB brand, and again in compliancewith state law is now the legal

owner of animals bearing that brand,including the 102 mares the BLM gathered,branded, fertility treated, and turned backout. The Nevada Department of Agricul-ture, responsible for the orderly conduct ofthe state branding program, is currentlyinvestigating the entire situation.When the BLM finished the Fish Creek

gather and turnout, there was a total of 302horses on the HMA, but that was before themares finished foaling. In 1997, the BLMactually had a plan to reduce Fish Creeknumbers to the high end of 170 by usinggathers and birth control, but said it wouldtake 19 years to implement. Those measureswere never put into place and so this year, 18years later, when success should be withinreach, the 18-year-old goal of achieving AMLis short by 132. And by now there is a newcrop of colts adding to that number. If thescientific datathat horse herds doubleevery four yearsis correct there will be 604head on the HMA by 2019.Historically, the ranch had run 32,000

Animal Unit Months (AUMs), a measure

Due to too many feral horses and almost no management, many of the herds are doing poorly. In late September, some Eureka County residents found threefresh pits out on the range, with buried horses. It smelled bad, one said. We couldnt tell how manyprobably close to a hundredbut the graves are bigand were made with a Cat. Theres lots of feed out here so they must have died of dehydration. You could see outlines of the bodies and hair from some of thetails. TOP LEFT: This young male is covered with bite marks from other studs, trying to keep him away from their mares. ABOVE RIGHT: This mare and foal are

hanging on to life in the Cold Creek herd west of Las Vegas. Some of the horses werein such poor condition, out of an act of kindness, the BLM had 28 euthanized. LEFT: Studs in battle for the harem. BELOW: The results from these fights can be ugly.

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indicating what a cow and calf (or fivesheep) will eat in one month. Over the yearsBLM management decisions have slowlyeroded the ability of ranchers to fully exercisetheir grazing permits, legal property thatthey own and on which they pay taxes. Basedon sound science and pressure from envi-ronmental groups using the strong arm oflitigation, ranches across the West have beendecimated by these reductions in the num-bers of cattle they can run. Fish Creek hasbeen no different. The ranchers who previ-ously owned it suffered when the AUMswere cut to 18,900 in 1994, and then again to4,800 in the late 90s.When Kevin and Sue Borba bought the

Fish Creek Ranch just southwest of the oldmining town of Eureka four years ago, theymade their decision based on the numbersthe BLM was allowing in 2010: roughly 418cows (3,090 AUMs) on their Duckwaterallotment for five months, and 506 cows(2,530 AUMs) on Antelope/Fish Creek forfive months. They were to run on their pri-vate land for several months and use winterrange on the desert. They didnt buy the

ranch to get rich...they were buying adreamto run cattle and raise their kids inthe ranching lifestyle. They knew that to gen-erate a basic living for a family with so fewcows, they would have to work tirelessly, butthat was the whole point of the dream.Today Borba is running 107 cows

(instead of 506) on the Antelope/Fish Creekallotment and 140 cows (instead of 418) onhis Duckwater allotment, because thats allthe BLM will allow. And he is worried thatgovernment agents will break anotherpromise and not let him turn cows out inNovember on his winter ground at all. In anultimate insult, when it drastically cutBorbas allotment, the BLM suggested heconvert his cattle permit on Duckwater torun 1,006 sheep instead. As a rancher, Borba, who owns all of the

water rights on that range, spends all his time

and money caring for the land. In the sum-mer he makes improvements and does regu-lar maintenance on all water sourceseventhough hes not making enough money oncattle to pay for it. In the winter he spends hisdays breaking ice so animals including thehorses can drink. There are days when thehorses are waiting for him at the troughs. Heis the daily caretaker of not only his cattle butall wildlife on that range.By July, the 302 head of wild horses the

BLM left on Fish Creek were dangerouslyclose to being out of water and they hadstrayed off their HMA looking for relief. It

turns out that one of the BLM water sourcesat Fish Creek isnt even inside the HMAboundaries and lures horses off their desig-nated range on a regular basis. One day, closeto Highway 50, Borba and his daughter, SageRose (11) and son Dustin (19), came across alittle stallion lying in the mud, hungry andthirsty, in need of rescue.Since he had been taking care of these

horses all year anyway, and because rancherstake care of animals, Borbas natural instinctwas to get the horse in the trailer and get himsome water. He hauled the horse to theranch house and called the BLM and theEureka County sheriff to let them knowwhat he was doing to save the colt.Incredibly, wild-horse activists always

find a use for the law when its convenient,and in this case they claimed that onlyauthorized personnel are allowed to feedand water a wild horse. Now they are push-ing for Borbas arrest because they claim helured the stallion off the HMA. Never mindthat the BLM doesnt get cited or threatened

FROM TOP: Doug Furtado (cap and sunglasses) isflanked by his muscle, Jon Sherve. The NationalGeographic stringer is wearing a white shirt.CENTER: Flint Wright, left, Nevada Department ofAgriculture livestock administrator, rancher KevinBorba, center, and BLMs John Ruhs. LEFT: JakeTibbitts, Eureka County natural resource boss, ledthe tour.

We have to go back to corevalues of respect for others,integrity and accountability,

and thats the kind of direction Ill give and if

people cant do that, theyllhave a tough time.

JOHNRUHS, BLM

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with arrest when the water ituses is located on the edge of orin some cases outside of anHMA and it lures horses out-side its boundaries. In themeantime, activists haveclaimed Sarge for their own:the little scoundrel stud horsefrom Fish Creek has becomeMr. Ed, with words put in hismouth, speaking online onbehalf of wild horses every-where. But its a mixed mes-sagesave the horses hasbecome dont touch thosehorses and dont water them orwe will put you in jail.Things had gotten so bad at

Fish Creek by August that theEureka County NaturalResources Advisory Board(NRAB) called for a tour of theFish Creek HMA. It hostedcounty commissioners, BLMdirector Ruhs, who was accom-panied by the Battle Mountaindistrict manager Doug Furtado,and his muscle, Jon Sherve.[See The Grass March,RANGE, Summer 2015 atwww.rangemagazine.com.]There were also members of theranching community and thepublic, along with a whole passelof the press including a stringerfrom National Geographic. Curi-ously, Laura Leigh was nowhereto be found.Jake Tibbitts, Eureka Coun-

tys natural resource director, led the tour. Hespoke at length of the history of Fish Creekand presented several action items for theboard to discuss and eventually present tothe commissioners. Tibbitts reminded atten-dees that before he went to work at the BLM,Furtado had worked for Eureka Countyunder John Balliette, Tibbitts predecessor.Furtado had actually authored some of thelanguage found in existing Eureka Countynatural-resource policy.Kerry OBrien, a blogger and supporter

of the BLM birth-control program, hadspent some time with Richardson and Leighin the days leading up to the tour. When theissue of the KB brand was brought up, Ruhswas surprised and vowed to find out whatthe brand stood for. OBrien then stepped upto explain the two-letter brand as a coding

scheme the BLM uses when it applies birthcontrol to gathered mares that are thenturned back out on the range.Confirmed later by Furtado, who called

back to his office to make sure, OBrien saysthat in 2004 the BLM started marking mareswith an AA. The first letter stands for the fis-cal year of the gather, and the second lettercorresponds to the place of the gather. It wasJ.J. Goicoechea, Eureka County commission-er and veterinarian, who brought up the factthat under that reasoning, 2015 would be L,so those mares probably should have bornean LB brand. But that brand isnt registeredat the state brand office either, althoughLarry and Patricia Bute in Ely own the LHanging B.About halfway through the tour, Leigh

materialized in a jacked-up pickup but stayed

hidden behind darkly tinted win-dows, except to pop out throughthe window like a prairie dog toshoot photos of the crowd. Shewas chaperoning the NationalGeographic stringer and his buddyfrom Wildlands Defense who hadpreviously served as media direc-tor for the anti-cow activists run-ning Western Watersheds Projectin Idaho and whose car couldntmake it through the desert for thetour.Leigh went on afterwards to

accuse Eureka County of holdingthe tour in secret despite itsrequirements as a public body topost notice under the Open Meet-ing Laws of the state of Nevada,advertised for the whole world tosee. Because Leigh reportedlyknows when a gnat sneezes on thehind end of a wild horse in Col-orado, her contemptuous indict-ment of the county claiming shewas unaware of the tour anduninvited was wholly disingenu-ous. She later accused the BLM ofcreating the current crisis at FishCreek and demanded the imme-diate removal of Ruhs in aninflammatory letter to NeilKornze, who heads the BLM fromWashington, D.C.a man who,for anyone interested in politics onthe Potomac, worked for NevadaSen. Harry Reid for several years. Itwas Kornze who sent ATF andother heavily armed storm troop-

ers and cops to take Cliven Bundys cattle offan allotment in southern Nevada in 2014.[See Patterns of Harassment at www.rangemagazine.com, RANGE, Fall 2014.]By September the wild-horse saga had

shifted to southern Nevada, where thedrought forced the BLM to emergency gath-er more than 200 horses from the ColdCreek area of Wheeler Pass HMA. Twenty-eight of those horses were so starved anddehydrated that they had to be euthanized bythe BLM. In a complete about-face, horrifiedactivists cried that volunteers could havehelped them recover. Apparently volun-teers are capable and appropriate in assistingdistressed wild horses, but ranchers who dealwith animals on a daily basis are not.While Kevin Borba worries about his

ranch, his cattle, his family, and what comes

Kevin and Sue Borba with 19-year-old son, Dustin (a rodeo champion broncrider and one of five children), at the Borba Ranch east of Eureka, Nev. Kevinand Sue are both prize-winning former bull riders and bronc riders. They areconstantly battling emotional copy about Save the horses. They are almostextinct. How can stars like Sheryl Crowe, Willie Nelson and Ed Harrisbabble about these horses are endangered when there are more than 50,000on welfare in holding pens at taxpayer-supported ranches in the Midwest,and close to a quarter-million excess horses have already been adopted out?

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next, Eureka County leadership worrieswhat these blows to the grazing industry willhave on the entire community. With themining industry always in fluxgold hasgone from a high of $1,900 an ounce downto $1,100 this year, and two of Nevadasbiggest gold mines are laying off employeesand selling off propertyranching hasalways been the stabilizing force in providingrevenues for the community. According toTom Harris, director of the Center for Eco-nomic Development at the University ofNevada in Reno, when gold is up, the livingin rural communities is large, but when goldis down, cattle ranching pays the basic bills.He says farming and ranching are economicconstants because when costs fluctuate, itsthe rancher or farmer who absorbs lossesand still provides the revenues on whichlocal governments rely.

Things have gotten so bad in EurekaCounty that commissioners and NaturalResource Advisory Board memberswhohave lived through this volatility for years,relying on the steadying force of agricul-tureare now desperately worried not onlyfor county interests, but for individualranchers. Those families stand to lose every-thing due to arbitrary decision-makingabout their range and their cattle, becausethe rule of law apparently no longer matters.

Even BLMs Ruhs, who is a fan of onsitecontraception, is concerned and frustrated.He says: We are being tasked to control thehorses and we havent been able to use thetools the law gives us. The WHBA specifi-cally states: The Secretary shall cause addi-tional excess wild free-roaming horses andburros, for which an adoption demand byqualified individuals does not exist, to bedestroyed in the most humane and cost-effective manner possible.

The Wild Free-Roaming Horses & Bur-ros Act isnt being followed and state brandlaws have been made a mockery. Meanwhile,American taxpayers foot the bill to feed andhouse feral horses that nobody wants at awestwide cost in 2014 estimated at $77.2millionand the BLM thinks it will help ifKevin Borba runs sheep.

Rachel Dahl, working toward her firstPulitzer, writes from Fallon, Nev. She hasmad skills in peopling, sleuthing, and politic-ing and extensive experience in water policy.She has taught public school, and currentlyteaches at Western Nevada College.


Documents

Ignoring the Rule of Law - RANGE magazinerangemagazine.com/features/winter-16/range-wi16-ignoring-law.pdf · Ignoring the Rule of Law Thanks to activists and feckless bureaucrats,