Petition for Stay Pending Appeal FInal

Mark L. Pollot, Esq.7277 West Potomac DriveBoise, Idaho 83704Phone Number: 208.867.8389E-mail: [email protected]

Attorney for ComplainantsBorba Land and Cattle, LLC,Ruth Martin Ranches, andEureka County, Nevada

UNITED STATES DEPARTMENT OF THE INTERIOROFFICE OF HEARINGS AND APPEAL

BORBA LAND AND CATTLE, LLC; et al, ) Docket No. _________)) Petition for Stay of Decision, Wild

Complainants ) Horse and Burro Program, Fish) Creek Herd Management Area Horse

v. ) Gather Plan and Environmental) Assessment (DOI-BLM-NV-B010-) 2015-0011-EA)

MICHAEL VERMEYS, ACTING FIELD ) EXPEDITED CONSIDERATIONMANAGER, MOUNT LEWIS FIELD ) REQUESTEDOFFICE, BATTLE MOUNTAIN DISTRICT, )BUREAU OF LAND MANAGEMENT ) 43 CFR 4.21

)Respondent )

__________________________________________/

COME NOW COMPLAINANTS HEREIN, Borba Land and Cattle, LLC, Ruth Martin

Ranches, and Eureka County Nevada, and Petition this Office for a stay of decision pending

appeal in the above-captioned matter pursuant to 43 CFR 4.21. Stay pending appeal is sought

for the reasons set forth below, including, but not limited to, the fact that 43 CFR 4770.3(c),

relied on by Respondent, does not apply to permit the implementation of the bulk of the plan to

proceed before the appeal period closes.

I.

BACKGROUND

This matter involves two federal statutory schemes. First and foremost, it takes place in

the context of the Wild Free-Roaming Horse and Burro Act of 1971 (WFRHBA or Wild

Horse Act), as amended. 16 U.S.C. 1331, et seq. The second statute at issue is the National

Environmental Policy Act (NEPA) (42 U.S.C. 4331, et seq.). The appeal before this body

will address defects in the decision involving both statutes and will be explored in more detail in

the Statement of Reasons which will follow the Notice of Appeal. The greater weight of the

matter concerns violations of NEPA. The decision being challenged, which is already being

implemented (see discussion infra) purports to meet the obligation of BLM under the Wild Horse

Act, about which a brief discussion here is needed. As discussed in detail, infra, Respondent

determined that the decision could be immediately implemented by erroneously relying on 43

CFR 4770.3(c), which allows only gathering to commence immediately.

A. The Wild Horse Act.

The Wild Horse Act requires the Secretaries of Interior and Agriculture to manage wild,

free-roaming horses and burros in a manner that is deigned to achieve and maintain a thriving

natural ecological balance on the public lands and, in so doing they are required consider the

recommendations of qualified scientists in the field of biology and ecology, some of whom are

required to be independent of both Federal and State agencies. Just as in NEPA, the agencies are

required to pay attention to valid, scientific, evidentiary and non-arbitrary information. The Wild

Horse Act imposes on the agencies explicit, mandatory duties such as maintaining a current

inventory of wild free-roaming horses and burros on given areas of the public lands, and to

Petition for Stay: Page 2 of 22

remove excess animals. 16 U.S.C. 1333(a)(1) and (a)(2). Similarly, they are obliged to protect

the lands within the State of Nevada and other states from deterioration caused by the presence of

wild horses and burros as defined by the action and maintain the multiple use of the affected

lands.1 16 U.S.C. 1332(f). The Respondents failure to meet these obligations in the plan

under consideration and defects in Respondents compliance with NEPA render the

Environmental Assessment (EA), the Finding of No Significant Impact (FONSI) and the

final decision which rests on the EA, defective and challengeable on appeal as will be addressed

specifically in the Statement of Reasons to be filed.

In brief, the agencies were not given free rein and utter discretion to manage horses and

burros as they wish. Congress insisted that there be protection only within certain limits. Absent

such limits, severe damage could occur, affecting not only the quality of the lands on which such

animals are found, but also private property rights, wildlife, livestock, and other animals as well

as the horses and burros themselves; among other things. Given the propensity of horses and

burros to breed in an uncontrollable fashion (a fact of importance to this petition as discussed

infra) as they have virtually no natural predators, Congress imposed a number of mandatory

duties on the Secretaries of Agriculture and Interior.

(a) For example, the Act provides that the Secretaries:

shall consider the recommendations of qualified scientists in thefield of biology and ecology, some of whom shall be independent

1 There are many parallels between the Wild Horse Act and NEPA. Not only do bothrequire consideration of valid scientific data and methods to guide the decisions of the agencies,the both require the agencies to take into account the impact of their actions on the environmentand to cooperate and coordinate with state and local government in their processes and decisions. See e.g. 42 U.S.C. 4331(A), 42 U.S.C. 4332(2)(C), 42 U.S.C. 4332(2)(d), 42 U.S.C. 4332(2)(G),452 U.S.C. 4341, 42 U.S.C 4345(1), and 42 U.S.C. 4371.


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of both Federal and State agencies and may include members of theAdvisory Board established in section 7 of this Act . . .

shall [carry out management activities] at the minimal feasible level . . .

shall [carry out all management activities] . . . in consultation with thewildlife agency of the State wherein such lands are located in order toprotect the natural ecological balance of all wildlife species which inhabitsuch lands, particularly endangered wildlife species . . .

shall [in making such determinations] consult with the United States Fishand Wildlife Service, wildlife agencies of the State or States wherein wildfree-roaming horses and burros are located, such individuals independentof Federal and State government as have been recommended by theNational Academy of Sciences, and such other individuals whom hedetermines have scientific expertise and special knowledge of wild horseand burro protection, wild-life management and animal husbandry asrelated to rangeland management.

16 U.S.C. 1333(a)(1). Emphasis added.

Furthermore, the Secretaries of Interior and Agriculture in their respective spheres are

mandated to keep close scrutiny of the numbers of such animals and take action to immediately

remove excess animals from the range and to protect the range from the deterioration

associated with overpopulation. 16 U.S.C. 1333(a)(2).

Unlike many other federal land management statutes which vest the Secretaries with

broad discretion, the Act strictly limits the discretion of the Secretaries with respect to how they

are to carry out these tasks under the Act. In fact, in key areas they are given virtually no

discretion. Instead, Congress directed that [s]uch action shall be taken, in the following order

and priority, until all excess animals have been removed so as to restore a thriving natural

ecological balance to the range, and protect the range from the deterioration associated with


overpopulation. Id. Emphasis added.2 Specifically, the Act provides that the following

procedures must be followed in the following order:

(a) The Secretary shall order old, sick, or lame animals to be destroyed in themost humane manner possible;

(b) The Secretary shall cause such number of additional excess wildfree-roaming horses and burros to be humanely captured and removed for privatemaintenance and care for which he determines an adoption demand exists byqualified individuals, and for which he determines he can assure humanetreatment and care (including proper transportation, feeding, and handling):Provided, That, not more than four animals may be adopted per year by anyindividual unless the Secretary determines in writing that such individual iscapable of humanely caring for more than four animals, including thetransportation of such animals by the adopting party; and

(c) The Secretary shall cause additional excess wild free roaming horsesand burros for which an adoption demand by qualified individuals does not existto be destroyed in the most humane and cost efficient manner possible.

16 U.S.C. 1333(a)(2).

At the risk of oversimplifying the plan at issue as discussed below, its two components

are basically to remove horses from the vast overpopulation (see discussion infra), thereby

moving the population in the direction which Congress mandated it go, and then after having

2 Respondent will no doubt argue that other language in the Wild Horse Act gives BLMdiscretion to utilize other methods such as sterilization, but it is clear from the language herequoted and other language in the statute that other options can be used to stabilize the populationand prevent unmanageable growth of the population once the target levels have been reached. Otherwise the language provided that the specified actions shall be taken, in the following orderand priority, until all excess animals have been removed so as to restore a thriving naturalecological balance to the range, and protect the range from the deterioration associated withoverpopulation. Emphasis added. Only then can birth control discretion be exercised as ameans of maintaining the achieved goal. After all, rendering the mares partially unable toconceive (which is the most that the selected contraceptive can hope to achieve based onextensive studies brought to BLMs attention in the EA process) will not reduce the populationuntil and unless the mares die without offspring. On the other hand, if the mares, once removedfrom the population, are not returned to it, there is not chance that they can contribute to thepopulation growth of the herd.


done what Congress mandated dose mares with a contraceptive which is at best partially

effective and potentially harmful (as demonstrated by commenters in the EA process based on

scientific studies) and then release them back into the population they came from thereby

swelling the reduced, but still excessive population. Following release, the plan calls for

superflous measures to take place over the next, for which no support in the record can be found

and which are both unproven and questionable under the Act and regulations as will be discussed

in the Statement of Reasons. In sum, the plan calls not only for giving the mares shots and

turning them out, but includes in-the-field darting as boosters, bait and trap gathers, and other

activities.

B. NEPA

In an attempt to comply with NEPA, the agency performed an Environmental

Assessment. Complainants jointly submitted written comments on the draft EA under

Complainant Countys letterhead (see Declaration of J.J. Goicoechea, appended hereto as Exhibit

A, and Declaration of Kevin Borba, appended hereto as Exhibit C), bringing pertinent and

significant information to Complainants attention, including, but not limited to the following:

(1) a massive failure in the process to coordinate with Eureka County; (2) a failure of the EA to

consider the conflicts raised by the agencys plans with the policies and plans of the County; (3)

the EA ignored the lack of adequate, natural sources of water for horses, wildlife, and other

animals in the affected area (although the agency was informed in the EA process that only well

water which must be pumped and which the rights to which are privately owned) as well as

the fact that the plan as contemplated cannot function without violating Nevada water law which

is binding on the agency; (4) the EA demonstrated an absence of any scientifically-based


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consideration in the EA of the socioeconomic impacts of the plan or on the existing wildlife; (5)

there was no consideration in the EA of any need to comply with rules and procedures on non-

federally owned roads which could impact the plan nor did the EA account for the impact of the

plans contemplated actions on county-owned infrastructure; (6) the EA, without any scientific

data, ignored the comments by Complainants and others, about the inefficacy of the selected

contraceptive in controlling excessive populations and the injuries that can result to the horses,

other wildlife, and the environment from repeated attempts to readminister; and (7) the EA fails

to consider the impact of the management plan on other species, including elk. Complainants

comments were not alone. Others also brought attention to similar and other issues which were

likewise unaddressed or inadequately considered.

Given the failure of the agency to account for substantive information brought to its

attention and its unwillingness to obtain or consider opinions from experts outside the agency,

give[] careful scientific scrutiny and respond[] to all legitimate concerns that are raised (Hughes

River Watershed Conservancy v. Johnson (Hughes River II), 165 F.3d 283, 288 (4th Cir.1999)),

the agency cannot be said to have taken the hard look required by NEPA. To pass muster

when issuing a Finding of No Significant Impact (FONSI), [a]n agency must make a

convincing case as to why an EIS is not necessary if it so decides after preparation of an EA.

Coalition to Preserve McIntire Park v. Mendez, 862 F.Supp.2d 499. 518 (2012). Emphasis

added. In any event, whether issuing an EA or an EIS, the agency's hard look must encompass

a thorough investigation into the environmental impacts of [the] agency's action and a candid

acknowledgment of the risks that those impacts entail. Id. This did not happen in the above-

captioned matter.


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II.

THE DECISION FOR WHICH STAY IS SOUGHT

On February 9, 2015, Respondent Michael Vermeys in his capacity as Acting Field

Manager of the BLMs Mount Lewis Field Office, Battle Mountain District in Nevada Issued the

following documents pertaining to the Wild Horse and Burro Program, Fish Creek Herd

Management Area Horse Gather Plan: (1) a Notice of Decision (ND); (2) a FONSI; and (3) a

Dear Reader letter (a copy of which is appended hereto as Exhibit B) notifying those reading

it of the decision and providing a summary of the plan. As will be further explored in the

Complainants Statement of Reasons, the letters exposition of the plan was not as accurate as is

desirable. However, it did provide some information that demonstrates some of the reasons why

a stay is being requested which are discussed infra.

The ND includes as an attachment, a copy of Form 1842.1 (Information on Taking

Appeals to the Interior Board of Land Appeals), which form notes that, unless program-

specific regulations place this decision in full force and effect or provide for an automatic stay,

the decision becomes effective upon expiration of the time allowed for filing an appeal unless a

petition for stay is filed together with a notice of appeal. At the end of the ND, Respondent

wrote that the decision is effective on issuance in accordance with 43 CFR 4770.3(c) because

removal of excess wild horses and fertility control treatment is necessary to protect animal health

and prevent further deterioration of rangeland resources For the purposes of this Petition to

Stay, Complainants do not dispute that removal of excess horses would prevent further

deterioration of rangeland resources. Indeed, it is self-evident that this is the reason that

Congress mandated that excess horses be removed before any other action is taken.


However, there are two problems with Respondents determination of immediate

implementation of the decision. First, and foremost, 43 CFR 4770.3(c) specifically provides as

follows:

Notwithstanding the provisions of paragraph (a) of 4.21 of this title, theauthorized officer may provide that decisions to remove wild horses or burrosfrom public or private lands in situations where removal is required by applicablelaw or is necessary to preserve or maintain a thriving ecological balance andmultiple use relationship shall be effective upon issuance or on a date establishedin the decision.

Id. Emphasis added. Based on this highly specific language, Respondent might be justified in

permitting implementation of the provisions of the plan calling for the removal of the excess

horses from the area, but not that portion of the plan which calls for their contraceptive dosing or,

more importantly, the release of horses back into an already massively overpopulated area.3 In

brief, the plan calls for reducing the environmental stress on an area by removing approximately

500-549 horses (Exhibit B at 3) and then to return 300-349 of them to the same area. Id. In fact,

the figures do not add up. If one assumes that BLMs estimate is accurate at 549 horses (a

questionable proposition), it intends to remove them all or nearly all, and then intends to return

3 The ND states that the Appropriate Management Level (AML) for the Fish CreekHorse Management Area (HMA) is 101 to 170 animals. This figure is hard to understandgiven that, as noted above, there is no surface water for the horses to use. It can only be obtainedby pumping water to which the BLM is not entitled from wells it does not own. In short, thehorses depend on the good will of the ranchers in the area which has been given. By itself, theland can support zero horses. Be that as it may, the ND estimates that there are in fact 549animals on the HMA, or an overpopulation of 323 percent, a figure that is virtually certain to below. See, e.g., Audit Report No. GAO-09-77. Bureau of Land Management: EffectiveLong-Term Options Needed to Manage Unadoptable Wild Horses, October 9, 2008; UsingScience to Improve the Wild Horse and Burro Program: A Way Forward, Committee to Reviewthe Bureau of Land Management Wild Horse and Burro Management Program; Board onAgriculture and Natural Resources; Division on Earth and Life Studies; National ResearchCouncil, National Academies Press, p.3 (2013). (Hereinafter AAS Report.)


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suzanneroySticky Notethey want an aml of zero

up to 349 horses to the HMA, slightly more than twice the maximum AML it claims for the Fish

Creek HMA of 170.

In other words, the plan purports to attempt to bring the number of wild horses and

burros in the affected area down to statutorily mandated levels by removing and then returning

animals in hopes that, contrary to actual evidence and studies as opposed to the anecdotal and

unsubstantiated experience of an individual, the dosed mares will reproduce at a slower rate,

which may slow the growth of the population, but cannot reduce it to anywhere near AML for at

least 10 years. In the meantime, the released animals will continue to degrade the environment

for the same 10 years or more.

III.

ARGUMENT

Pursuant to 43 CFR 4.21, a petition for a stay of the decision pending appeal must meet

the same standards as one must meet to obtain a preliminary injunction. Specifically, the Board

must: (1) balance the relative harm to the parties if the stay is granted or denied; (2) the

likelihood of the appellants success on the merits; (3) the likelihood of immediate and

irreparable harm if the stay is not granted; and (4) whether the public interest favors granting the

stay. Id.; see, e.g., The Nation Magazine v. Department of State, 805 F. Supp. 68, 72 (D.D.C.

1992); Natural Resources Defense Council v. EPA, 806 F.Supp. 275, 277 (D.D.C. 1992).

However, these elements do not represent hard and fast prerequisites that must be

satisfied, but rather are considerations to be balanced that guide the discretion of court. Milliron

v. Louisville & Jefferson County Metropolitan Sewer District, 867 F.Supp. 559, 563 (W.D.Ky.

1994). All of these factors are to be balanced with regard to any final decision, and the strength


of any one factor may affect the necessary showing with regard to another. Olmeda v. Schneider,

889 F.Supp. 228, 231 (D.Virgin Islands 1995). Thus, it has been held that a critical element in

making the determination as to whether a preliminary injunction (or in this case, a stay) should

issue is the relative hardship to parties such that parties seeking an injunction need not show so

great a likelihood of success on the merits if balance of harms tips decidedly toward

Complainants. Janra Enterprises, Inc. v. City of Reno, 818. F.Supp. 1361, 1363 (D.Nev. 1993).

Complainants respectfully submit that a stay is appropriate under the circumstances herein.

Before discussing this in detail, Complainants note that they do not here object to the

BLM proceeding to remove excess animals during the pendency of the appeal. Indeed, the Wild

Horse Act requires the agency to do so and the ND and EA themselves are permeated with

information demonstrating that not removing horses is highly detrimental to the horses and range

resources. However, 43 CFR 4770.3(c) by its terms as set forth above, only allows respondent

to permit the gathers to go forward, not the dosing and release of horses. Further, there is no

reliable evidence or studies supporting the FONSI determination or the NDs conclusion that

dosing and releasing excess horses will even be effective in the 10 years postulated for it, much

less that any immediate harm would result from a resolution of the appeal in this matter.

Common sense and facts themselves support the stay even if 4770.3(c) otherwise permitted the

immediate implementation of the dose and release portions of the plan.

A. Likelihood of Success on the Merits.

As noted, the first element to be addressed by parties seeking a stay is whether they have

a likelihood of success on the merits. 43 CFR 4.21. This does not mean that the parties seeking

the stay need to demonstrate that they are certain to prevail on the merits, but only that there is a


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reasonable probability of success on the merits. Apollo Technologies Corp. v. Centrosphere

Indus Corp., 805 F.Supp. 1157, 1191 (D.N.J. 1992). It is enough to show that the plaintiffs

chances of succeeding are better than negligible. Mulligan v. Parker, 805 F.Supp. 592, 595

(N.D. Ill. 1992). The discussion above pertaining to the NEPA process establish that there is a

significantly greater than negligible chance of succeeding on the merits.

B. Relative Harm to the Parties if the Stay is Granted or Denied.

Complainants herein are Eureka County, Nevada (Eureka), Borba Land and Cattle,

LLC (Borba), Ruth Martin Ranches (owned by Vicki and Beau Buchanan), Jim Wise (owner

of Fisk Creek Ranch); Willow Creek Ranch - 3F, LLC, Risi Ranch (Kelly Hoekenga,

partner/owner); MW Cattle Co., a private corporation; Gaylen Byler, an individual; and Peter and

Tom Damele, individuals.

Ruth Martin Ranches is a property owner and holds grazing permits in the affected area.

They have grazing permits from both BLM and the United States Foreszt Service (USFS) just

south of the Fish Creek HMA and outside of the HMA. They have had wild horses on their

allotment taking their allocated forage and impacting their private water rights. They have had

issues with horses impacting and damaging fences that assist in management of their livestock.

They have documented multiple occasions of informing BLM of these horses outside of the

HMA and BLM has been generally unresponsive to their request to remove the horses.

Jim Wise is the owner of Fish Creek Ranch. While not a permittee on federal lands, Mr.

Wise owns the original ranch in which the Fish Creek Ranch Allotment and HMA were named.

Wild horses have been on his private property and impacted his private water sources, fences,

and forage.


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Willow Creek Ranch - 3F LLC - has a grazing permit partially in the Fish Creek HMA.

Its Ranch Has been affected in the same manner as Borba. It also has a permit and private

property outside of the HMA that the horses at issue have impacted, including, inter alia, its

fences, forage, and water rights.

Risi Ranch has a grazing permit partially in the Fish Creek HMA and is suffering injury

similar in nature and scope to that suffered by Borba. It also has a permit and private property

outside of the HMA that the subject horses have impacted including, without limitation, fences,

forage, and water rights owned by Risi.

MW Cattle Co. has a grazing permit primarily outside of the Fish Creek HMA. He has

wild horses on their allotment taking their allocated forage and impacted their private water

rights. He has had issues with horses impacting and damaging fences that assist in management

of their livestock. He has documented multiple occasions of informing BLM of these horses

outside of the HMA and BLM has been generally unresponsive to their request to remove the

horses.

Gaylen Byler, permittee and lessee of Snowball Ranch has a grazing permit primarily

outside of the Fish Creek HMA. He has wild horses on their allotment taking their allocated

forage and impacting his water rights. He has had issues with horses impacting and damaging

fences that assist in management of their livestock. He has documented multiple occasions of

informing BLM of these horses outside of the HMA and BLM has been generally unresponsive

to their request to remove the horses.

Finally, Peter and Tom Damele are property owners and permittees holding a grazing

permit that is partially in the Fish Creek HMA. Like the others, the horses at issue have


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adversely affected them in the same manner as outlined for Borba. They also have a permit and

private property outside of the HMA that the horses have impacted, as above, involving the same

injuries and threatened injuries to fences, forage, and water rights, other things, described in

detail herein with respect to Borba.

Fish Creek HMA is located within the boundaries of Eureka County and all gathering and release

of the animals in question will be within the boundaries of the County. Borbas ranch, including

grazing allotments to which it hold permits, encompasses the Fish Creek HMA among other

lands. See Exhibit C at 2-3.

1. Injury and the Threat of Injury to Eureka County of Denial of a Stay.

Eureka County has the responsibility for protecting and forwarding the interests of its

citizens and residents, including, but not limited to, protection and promotion of the public

health, safety, and welfare and the protection of the environment within its borders as well as

fostering positive economic conditions within their borders. It has a long-standing, and intense

interest in protecting the values and natural resources within its borders. Exhibit A at 2, 6, 8.

Like most, if not all, counties, Eureka has within its borders Herd Management Areas,

including the Fish Creek HMA. Id. 7. Respondent admits in its EA and ND that the excess

population is damaging, and not only to the areas within the HMA, but also when, as the EA and

ND acknowledge, animals wander off the HMAs (as there is nothing to keep them there). If it is

permitted to restock the range with animals it had once removed (as it was statutorily required to

do), and to carry out the on-the-ground, post-release activities contemplated by the Plan, the

restocked animals will impose continuing damages on the County and the other Complainants, as


well as the lands, wildlife, vegetation, and other resource conditions in Eureka County and on the

other Complainants ranches. See, e.g., Exhibit A at 7-8; Exhibit C at 2-4. As BLM

necessarily admits, horses compete aggressively for natural resources (including forage and

water) and can endanger native species, including Lahontan cutthroat trout). Horses trample

groundcover, which can impact obligate species such as sage grouse (Jeffress & Roush, 2010).

When native vegetation is trampled, cheatgrass is often one of the first vegetation types to grow

back. Cheatgrass is a light fuel that ignites easily, which in turn can increase the frequency of

wildland fires. This in turn increases costs associated with fighting fire for local and federal

responders. Resource Concepts, Inc. estimated in 2001 that economic losses to the livestock

sector in the four BLM districts covering Nye County alone, for example, amounted to

approximately $6,743,440. (Nevada Grazing Statistics Report and Economic Analysis for

Federal Lands in Nevada. Resource Concepts, Inc.: Carson City, Nevada [2001]). Threats of

similar damage and associated costs are readily obvious within Eureka County. Given that the

United States is immune from financial liability due to its sovereign immunity, such damages as

have occurred and those which imminently threaten the County and Borba are necessarily

irreparable.

Eureka is imminently threatened by adverse impacts on its tax base and, consequently, its

ability to provide police, fire prevention and fighting resources, as a result of excess horse

populations such as those admitted to in the ND and EA at issue herein, because of the agencys

self-documented failure to control excessive populations of horses and burros. Exhibit A,

6-8. These include, but are not limited to, loss or diminution of vegetation and animals in

affected areas, decreases in water availability, fires resulting from the same, and the attendant


suzanneroyHighlightblaming wild horses for cheatgrass!

diminishment of wildlife habitat and plant life due to poor rangeland and agricultural land health.

It is likewise affected from the decrease in economic viability of agricultural and other activities

within its borders. Id. These damages have occurred and will continue to occur, as has been well

documented, and they are forecast to increase.

According to a 1982 report by the National Research Council, without externalintervention wild horse and burro populations will grow beyond the point at whichenvironmental damage occurs, to the detriment of other authorized uses. Rangeresources will be exhausted and/or damaged as the wild horse and burro herdsincrease in size. BLM's present day wild horse population models estimate thatherds will increase by approximately 20 percent annually under normalconditions, and at this rate, herd sizes double every 4 years. The graph belowestimates population growth from 38,365 in 2010 to 238,000 by 2020 on publicland if there were no efforts toward population control.

OIG Report, supra at 9. Graph omitted. These facts and those admitted in the FONSI, ND, EA,

and Dear Reader Letter, demonstrate that irreparable injuries to the Complainants and the

animals and resources themselves accrue every day that excess numbers of livestock remain on

the HMA and, though once removed that injury is diminished or removed with the animals, as

soon as an excess number of animals is restored to the HMA, accrual of more damage is

immediate.4

2. Injury and Threat of Injury to the Complainant Ranchers if a Stay IsDenied.

The Complainant ranchers are for-profit entities which own or operate cattle ranches

located in the Mount Lewis Field Office area of the Battle Mountain District. Borba, for

example, acquired its Ranch approximately 3 years ago. Exhibit C, 2. Its, and its

predecessors ranching operation includes a grazing allotment containing the Fish Creek HMA.

4 In fact, inherent in the very idea of an AML is that animals in excess of it necessarilycause injury.


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Id, 3. The property owned privately by Borba and its predecessor-in-interest include not only

the fee simple lands owned by Borba, but livestock water rights, rights-of-way to and from the

water sources in which it owns water rights and rights-of-way to and from its privately-owned

lands, and its rights to utilize forage around the water sources and rights-of-way. Id. Both Borba

and its predecessor-in-interest have been adversely affected by the excess population of wild

horses in the Fish Creek HMA (id, 4) in the same manner that the other Complainant ranchers

have been.

For example, because of the excess populations of wild horses, Borba has suffered

significant, unsustainable reductions in grazing AUMs with the number of livestock it has been

allowed to turn out being reduced every year, resource damage on privately-owned lands,

utilization of water rights owned by Borba and its predecessors-in-interest, and damage to

structures/improvements owned by Borba and its predecessors-in-interest, as have other

Complainant ranchers/cattle operators. Given that a single horse will drink 15-20 gallons of

water a day, the use of Borbas water by the excess wild horses has been substantial. Id. When

livestock must be removed because of reductions in AUMs, the livestock that would otherwise

have been fed by utilization on the allotments must be fed elsewhere or disposed of. Id. This has

caused Borba to purchase hay that it would not otherwise have had to purchase and to make other

accommodations and go to additional expense. If this continues at the levels that restocking the

range with previously removed horses, it threatens the viability of Borba Land and Cattle, LLC

business and the businesses of the other Complainant ranchers and cattle operators. Again, given

the sovereign immunity from damage suits of the United States, these injuries are irremediable.

3. The Agency Will not Be Injured if a Stay Is Granted.


As a threshold matter, it must be noted, as already alluded to, the reliance of the

Respondent on 43 CFR 4770.3(c) to immediately implement its decision, at least as so far as the

dosing and releasing of animals and the post-release conduct contemplated by the Plan are

concerned, was misplaced. Reversing that improper application of the regulation by granting a

stay simply restores the circumstances to what they should have been from the start. Respondent

cannot claim injury from having to comply with a valid law or regulation. This is clearly

distinguishable from the irreparable injury that might result from being compelled to comply

with an unconstitutional law or regulation.

Similarly, the statute under which the Wild Horse and Burro Program at issue is governed

mandates that excess horses be removed and then given one of several treatments set forth by

Congress in order as already discussed above. 16 U.S.C. 1333. None of these provisions

authorize excess animals to be returned to the HMA once they have been removed from the

HMA and if they are not returned, the post-release actions of the Plan would not be taken with

respect to them. Thus, a stay would again have only the result that the Wild Horse Act requires

and therefore no injury could result while the appeal proceeds. To be sure, there are costs

associated with complying with a valid mandatory duty, but these costs are just a concomitant to

the fact of compliance.

As importantly, Respondent admits without reservation in the EA, FONSI, ND, and Dear

Reader letter the injuries to federal resources, and even to the animals themselves, occasioned by

the presence of an excess population. The documents discuss in general terms the cost of

compliance with the statutes removal provisions (e.g., the cost of keeping the animals, and the

like) and discuss the damage done by such excess populations to range and environmental


suzanneroyHighlight

resources. None of the documents, however, make a serious effort to quantify the costs of

compliance with the provisions of the Wild Horse Act and to compare those costs with the costs

and remediability of environmental and resource damages occasioned by leaving or returning the

animals to the HMA. There will be a resource damage cost to returning these animals and to

taking the post-release actions required by the Plan.

Finally, although Complainants dispute the claim, superficial and unsustainable as

Complainant submits that it is, they can assume, for the sake of argument, that dosing mares with

a contraceptive medication does slow down or even stop the reproduction rate of dosed animals.

The obvious reality, however, is that the persumed impact of the treatment by no means occurs

rapidly. By the plans own estimate (which Complainants submit is grossly over-optimistic as

show by information ignored by Respondent in the EA and FONSI), it will take at least ten years

to achieve its goal. By comparison, the time for this appeal to be decided will be vastly less and

no significant delay in achieving the asserted goal can reasonably be argued to exist.

C, Immediate Irreparable Harm or Immediate Threat of Irreparable Harm.

These issues were already discussed in subsection III.B. above as they are inextricably

intertwined with the discussion of the balance of harms.

D. The Public Interest Favors Granting the Stay.

In 1971, Congress established a policy in the WFRHBA to protect wild free-roaming

horses and burros . . . from capture, branding, harassment, or death. 16 U.S.C. 1331.

Congress did not, however, determine that such animals are not to be everywhere considered

appropriate to exist or to be placed or protected. Instead, the animals were to be considered as

an integral part of the natural system of the public lands [only] in the area where presently


found (i.e., in 1971, the year the Act was passed into law). Id. Likewise, Congress recognized

that there could be, indeed, must be protection only within certain limits. Absent such limits,

severe damage could occur, affecting not only the quality of the lands on which such animals are

found, but also to private property rights; wildlife, livestock, and other animals; and the horses

and burros themselves; among other things. Given the propensity of horses and burros to breed

in an uncontrollable fashion as they have virtually no natural predators, Congress imposed a

number of mandatory duties on the Secretaries of Agriculture and Interior. See, e.g., 16 U.S.C.

1333(a). These and other provisions establish what Congress viewed as being in the public

interest, that is, preservation a population of wild, free-roaming horses and burros as living

symbols of history whose existence, numbers, and placements must be closely controlled so that

they could be enjoyed but not harmful to the environment, other resources, and other priorities. It

is for this reason that the careful accounting of horse numbers and removal of excess populations

was mandated.

A stay of the decision pending appeal of the release of horses once gathered is entirely

consonant with what Congress determined was in the public interest. It cannot be denied, and the

EA, FONSI, ND and Dear Reader Letter did not purport to do so, that approximately 44 years

after the Wild Horse Act became law, the population has expanded without meaningful restraint

and any lawful action which immediately reduces the population, i.e., the removal of excess

populations of animals from the public lands or evan a given HMA, serves the public interest,

and does not injure it, while the failure to comply and to restock the range with excess animals

injures the public interest.

IV.


CONCLUSION

For the reasons stated hereinabove, Complainants request that their Petition for Stay

Pending Appeal in the above-captioned matter be granted.

Respectfully submitted this 19th Day of February, 2015.

/s/ Mark L. Pollot (Signed ELectronically)Mark L. PollotAttorney for ComplainantsBorba Land and Cattle, LLC; Ruth MartinRanches; Jim Wise; Willow Creek Ranch -3F, LLC; Risi Ranch; MW Cattle Co.;Gaylen Byler; Peter and Tom Damele; andEureka County, Nevada


CERTIFICATION OF SERVICE

Pursuant to 43 CFR 4.413, undersigned counsel certifies he served the following

persons with the and foregoing Notice of Appeal and Petition for Stay of Decision Pending

appeal (with Exhibits) as required by 43 CFR 4.413 by depositing it in with the United States

Postal Service utilizing its Priority Express Mail service on February 19, 2015.

Mr. Michael VermeysActing Field ManagerBureau of Land ManagementMount Lewis Field OfficeBattle Mountain District50 Bastian RoadBattle Mountain, NV 89820

Regional SolicitorPacific Southwest RegionU.S. Department of the Interior2800 Cottage WayRoom E-1712Sacramento, CA 95825-1890

United States Department of the InteriorOffice of Hearings and AppealsInterior Board of Land Appeals801 N. Quincy StreetMS 300-QCArtlington, VA 22203

February 19, 2015

/s/ Mark Pollot (Signed Electronically)Mark L. Pollot


Exhibit A

Exhibit B

Exhibit C

UNITED STATES DEPARTMENT OF THE INTERIOROFFICE OF HEARINGS AND APPEAL

BORBA LAND AND CATTLE, LLC; et al, ) Docket No. _________)) Declaration of Kevin Borba ) in Support of Petition) for Stay of Decision, Wild

Complainants ) Horse and Burro Program, Fish) Creek Herd Management Area Horse

v. ) Gather Plan and Environmental) Assessment (DOI-BLM-NV-B010-) 2015-0011-EA)

MICHAEL VERMEYS, ACTING FIELD )MANAGER, MOUNT LEWIS FIELD )OFFICE, BATTLE MOUNTAIN DISTRICT, )BUREAU OF LAND MANAGEMENT ) 43 CFR 4.21

)Respondent )

__________________________________________/

Comes now Kevin Borba and declares under penalty of perjury under the laws of the

United States as follows:

1. I am an Officer/Owner of Borba Land and Cattle, LLC. I have personal knowledge of the

matters stated herein and, if called upon to testify, could competently testify thereto

2. Borba Land and Cattle, LLC is a for-profit entity which is the owner of an operating

cattle ranch located in the Mount Lewis Field Office area of the Battle Mountain District,

acquiring it approximately 3 years ago.

3. Borba and its predecessors ranching operation includes a grazing allotment containing

the Fish Creek HMA. The property is owned privately by Borba and its predecessor-in-

interest include not only the fee simple lands owned by Borba, but livestock water rights,

rights-of-way to and from the water sources in which it owns water rights and rights-of-

way to and from its privately-owned lands, and its rights to utilize forage around the

water sources and rights-of-way. Both Borba and its predecessor-in-interest have been

adversely affected by the excess population of wild horses in the Fish Creek HMA.

4. Because of the excess populations of wild horses, Borba has suffered significant,

unsustainable reductions in grazing AUMs with the number of livestock it has been

allowed to turn out being reduced every year, resource damage on privately-owned lands,

utilization of water rights owned by Borba and its predecessors-in-interest, and damage

to structures/improvements owned by Borba and its predecessors in interest. Given that a

single horse will drink 15-20 gallons of water a day, the use of Borbas water by the

excess wild horses has been substantial. When livestock must be removed because of

reductions in AUMs, the livestock that would otherwise have been fed by utilization on

the allotments must be fed elsewhere or disposed of. This has caused Borba to purchase

hay that he would not otherwise have had to purchase and to make other accommodations

and go to additional expense. If this continues at the levels that restocking the range with

previously removed horses, it threatens the viability of Borba Land and Cattle, LLC

business.

5. I, and other ranchers and permittees adversely affected by wild horses and concerned

about deterioration of range conditions worked with Eureka County officials to prepare

comments and information to provide to the BLM regarding its proposed gather and

fertility control of horses in Fish Creek HMA.

6. The comments that were worked on were included in a letter sent on January 23, 2015 to

BLM on the Countys letterhead setting out mine and the Countys and other Ranchers

concerns and comments on behalf of all of us.

7. The people involved in the letter in addition to Borba and the County wer Vicki

Buchanan, Russ Fitzwater, and John Fraser.

Dated: February 19, 2015

/s/ Kevin Borba (Signed Electronically)

Request for Stay of DecisionExhibit A DividerDeclaration of J.J. Goicoechea in Support of Petition for StayExhibit B DividerSignedDearReaderExhibit CDeclaration of Kevin Borba in Support of Petition for Stay

Documents

Petition for Stay Pending Appeal FInal