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Alliance of Wild Horse Advocates'
WILD HORSE WAR ROOM

INCIDENT STATUS UPDATE

FEDERAL JUDGE DENIES
CALICO MOUNTAINS ROUNDUP INJUNCTION


Issue: Court case regarding the Calico Mountains Complex roundup.

Update: Judge Friedman denies injunction request.

On December 23, 2009 US District Judge Paul Friedman issued an opinion in which he denied plaintiffs In Defense of Animals and Craig Downer the injunctive relief that they had sought to stop the roundup of horses in the Calico Mountains Complex.

In his opinion Friedman wrote, "Preliminary injunctive relief is 'an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.'"

Relief is dependant upon several conditions, one being than an agency is breaking the law and another being that failure of the court to act would result in irreparable injury (often referred to as "irreparable harm.")

Friedman indicated that the plaintiffs had failed to show that BLM's gather plan proposed by BLM departs from the removal procedure mandated by 16 U.S.C. § 1333(b)(2) of the Wild Free-Roaming Horses and Burros Act. Friedman wrote, "Issuance of an injunction at this stage might lead to substantial growth in the already overpopulated herds residing in the Complex. When the merits of the case are as yet uncertain, it would be imprudent to grant the plaintiffs’ relief that would produce such perverse results."

He further wrote, "“Plaintiffs seeking preliminary relief MUST demonstrate that irreparable injury is likely in the absence of an injunction. And the D.C. Circuit has set a high standard for irreparable injury. The injury must be both certain and great; it must be actual and not theoretical. Furthermore, the injury must be of such imminence that there is a clear and present need for equitable relief. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.” [Editor's note: Numerous legal citations were removed from this paragraph in order to facilitate easier reading.]

In other words, the irreparable injury has to be substantial and actual, and it has to be of a nature that it could not be corrected later if the Court ruled against the defendants.

Judge Friedman ruled that a reduction of horses available for viewing did not constitute irreparable injury, drawing a distinction in how courts viewed reductions as opposed to total removals. No reference to genetic viability appeared in the opinion so it appears that such an argument may not have been presented.

IDA had also raised a second claim that addressed the issue of long term holding.

Friedman wrote that this second claim, an argument that BLM was not given authority under the law to keep excess horses in long term holding, has a much greater chance of success. However in light of a lack of opportunity for BLM to fully respond to that claim and the plaintiffs' failure to establish imminent irreparable injury, and citing harms to interested parties and the public interest that would result from issuance of preliminary injunctive relief, Judge Friedman declined to issue an injunction based on that claim "at this time."

Judge Friedman further wrote, "BLM estimates that the proposed gather will last approximately fifty to sixty days. EA at 1. Presumably, at the end of that period, the agency will have to make firm decisions regarding the transport of some excess horses for long-term holding. The Court would be receptive to an effort by the parties to resolve some of the many outstanding questions in this matter on an expedited basis, or to agree upon an expedited briefing schedule for dispositive motions, before that sixty day period has concluded."

In other words, it would be approximately two months before the rounded up horses are actually distributed and during that time the court would receive arguments with respect to the disposition of the gathered horses.

It should be noted that an interesting footnote appeared in the court's opinion that referenced the ROAM act.

10 It is also possible that Congress soon may enact a more nuanced solution to this problem than this Court can offer. Under a bill already passed by the House and now under consideration in the Senate, the Wild Horse Act would be amended to expressly permit the relocation of horses to new areas of the public lands. See H.R. 1018, 111th Cong. § 5(b)(1) (2009). The bill would also prevent BLM from confining horses “in corrals or short-term holding facilities for more than 6 months.” Id. § 5(d).

[Citation: IDA, et al v. Salazar, DCD Courts]

(A link to an Examiner On-Line story on this subject will be added as soon as the story posts to the web.)


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