Meyer Glitzenstein & Eubanks LLP

4115 Wisconsin Avenue, N.W., Suite 210

Washington, D.C. 20016
Telephone (202) 588-5206
Fax (202) 588-5049
lmink@meyerglitz.com

245 Cajetan Street

Fort Collins, CO 80524
Telephone (970) 703-6060
Fax (202) 588-5049
beubanks@meyerglitz.com

Jeff Rose
District Manager
Burns District Office
Bureau of Land Management
Via electronic mail: j1rose@blm.gov
Lisa Grant
Wild Horse & Burro Specialist
Burns District Office
Bureau of Land Management
Via electronic mail: lgrant@blm.gov
July 20, 2016
RE:

Request For Access To Observe And Record Mare Sterilization At

BLMs Wild Horse Corral Facility In Hines, Oregon

Dear Mr. Rose and Ms. Grant:

We are writing on behalf of the American Wild Horse Preservation Campaign
(AWHPC) and its representatives Suzanne Roy and Deniz Bolbol, and the Cloud Foundation
and its representative Ginger Kathrens, to request that the Bureau of Land Management (BLM)
provide our clients with access to view and record the BLMs upcoming sterilization project to
be undertaken on wild horse mares at BLMs Wild Horse Corral Facility in Hines, Oregon (the
Hines Corral), as described in detail in BLMs Environmental Assessment (EA) DOI-BLMOR-B000-2015-0055-EA. As discussed below, and particularly because BLM is conducting this
research to determine the social acceptability of these procedures, EA at 54, our clients have a
desire, and a First Amendment right, to observe and record these procedures. This is a highly
controversial project, and the BLM has received thousands of comments in opposition. This
research is not only a matter of significant public concern, but also threatens to set an inhumane
precedent for the BLMs management of wild horses. The BLM has never before performed
highly invasive surgical sterilization procedures on federally protected wild horses in
experiments that could lead to a program-wide policy of sterilizing wild horses on the range.
Given that these experiments will shape the BLMs program-wide policies, public
documentation of this project is essential.
At the outset we want to stress that our clients strongly oppose the BLMs experiments
on wild horse mares at the Hines Corral and do not believe these procedures will in fact be

socially acceptable. As documented in our clients extensive comments on the BLMs draft EA,
these experiments are unnecessary given the success of Porcine Zona Pellucida as a wild horse
fertility management tool. As described in further detail below, these experiments will be
inhumane for both the adult mares and their foals. Our clients have especially strong concerns
about the BLMs experiments on ovariectomy-by-colpotomy, which is a highly invasive
procedure that will likely lead to the injury or death of mares and the abortion or deformation of
foalsas the BLM itself has acknowledged. Indeed, the agencys chief purpose for this
particular experimentation is to measure how often these inhumane results occur. See EA at 21.
Our clients therefore urge the BLM to abandon this unnecessary and inhumane experimentation
on ovariectomy-by-colpotomy.
However, if the BLM insists on conducting these particular experiments, our clients have
a desire and a First Amendment right to observe and record these procedures. Because the BLM
has already authorized the sterilization of these mares, and because, according to BLM officials,
the sterilization could occur within a short period of time on a schedule that has not yet been
publicly disclosed, we request that you respond to this request by no later than Thursday,
July 28, 2016 to let us know whether the BLM will accommodate our clients First Amendment
rights by providing access to observe and record these procedures. If we do not hear from you
by that time, we will assume that the BLM has refused to provide access and will file suit to
protect our clients interests and Constitutional rights.
A. Background
The BLMs management of wild horse populations, including the sterilization of wild
horses, and particularly including the sterilization of wild mares currently being held in the Hines
Corral, is a matter of exceptional public interest. Sterilization represents a fundamental shift in
the BLMs management of wild horse populations, which the agency has historically managed
through a series of roundups and removals of wild horses from the Herd Management Areas
where they reside when the agency deems there to be a wild horse overpopulation.
AWHPC, the Cloud Foundation, and their representatives have a long history of
observing and promoting public awareness of these wild horse removals. AWHPC has
documented numerous prior roundups and has disseminated information about these agency
actions to the public through press releases, websites, and other sources. AWHPCs videos of
prior roundups, which it circulated to the public, led the BLM to review and revise some of its
roundup practices in 2011. For example, the BLMs June 2015 Comprehensive Animal Welfare
Program Standards in part address issues captured on video by AWHPC, including the
prohibition on hitting, kicking, striking or beating any WH&B in an abusive manner,
restrictions on the use of electric prods, and the prohibition on deliberate slamming of gates and
doors on WH & Bs.1 AWHPC and the Cloud Foundation thus serve as important public
observers of the BLMs wild horse management, safeguarding wild horses and the public interest
in their welfare and promoting responsible agency behavior.
1

The BLM adopted these restrictions in part as a result of AWHPCs video documentation of the Triple B Wild
Horse Roundup in 2011. See, e.g., http://yubanet.com/usa/BLM-Report-Confirms-Inappropriate-Treatment-ofWild-Horses_printer.php

Ms. Kathrens, the Cloud Foundations representative, is also an Emmy-award-winning

creator of a PBS documentary on the life of a wild stallion named Cloud, which has greatly
increased the publics interest in preserving wild horses on the public lands. Indeed, the BLM
has acknowledged the value of Ms. Kathrens advocacy and public outreach on this issue by
appointing her to serve on the National Wild Horse and Burro Advisory Board in the capacity of
Humane Advocacy.2
The vital role our clients play in public observation of BLMs wild horse management
has taken on increasing importance as the BLM has begun a new program under which it will
permanently sterilize wild horses, including at the Hines Corral, in the White Mountain Herd
Management Area (HMA) in Wyoming, and in the Saylor Creek HMA in Idaho. The
permanent sterilization of wild horses is extremely controversial. As the BLM itself noted in the
EA for the Oregon project, [t]he public has participated in the long-running discussion of wild
mare sterilization for multiple years. EA at 54. For example, on July 28, 2011, sixty-five
members of Congress sent a letter to the Secretary of the Interior strongly opposing the drastic,
inhumane practice of spaying and gelding wild horses.3
Indeed, in response to strong public opposition to this approach to managing wild
horses, including litigation brought by our clients, the BLM has twice withdrawn proposals to
implement widespread sterilization of wild horses on public lands. See AWHPC v. Salazar, 800
F. Supp. 2d 270 (D. D.C. 2011); AWHPC v. Salazar, 859 F. Supp. 2d 33 (D. D.C. 2012).4 In
fact, the BLMs plan to sterilize wild mares in the Hines Corral has resulted in the submission of
over two thousand public comments, many of which expressed strong opposition to the project.
Decision Record for DOI-BLM-OR-B000-2015-0055-EA, at 13. It is thus clear that the BLMs
efforts to sterilize wild horses is a matter of intense public interest. Moreover, as candidly
admitted by BLM in its Final EA on the current project, the purpose of the project is to aid in
determining the social acceptability of each procedure to be implemented. EA at 54.
B. The Publics First Amendment Right To Observe And Record These Activities
Members of the public and the press have a First Amendment right to access and observe
government activities. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 576 (1980). This
First Amendment right clearly extends to the ability to observe and document the BLMs
management of wild horse populations. See Leigh v. Salazar, 954 F. Supp. 2d 1090, 1100 (D.
Nev. 2013). As the District of Nevada concluded in that case, public access contributes to the
purpose and functioning of BLMs management of wild horse populations and plays an
important role by protecting the interests of wild horses and through news-gathering for the
2

The BLM even noted Ms. Kathrens prior media outreach when it appointed her to this position. See
http://www.blm.gov/wo/st/en/info/newsroom/2016/march/nr_03_28_2016.html.
3
Letter from Members of Congress to Kenneth L. Salazar, Secretary of the Interior, July 8, 2011, attached as Exhibit
A.
4
This particular challenge concerned whether BLM had to include scientific evidence submitted by AWHPC about
the adverse effects of sterilization on wild horses in the administrative record for a decision to geld numerous wild
stallions. After the district court held that BLM had to include that information in the record, BLM withdrew its
decision.

public benefit, as well as by allow[ing] individuals to report on the governments activities. Id.
at 1101.
Moreover, the BLM generally claims to employ a nation-wide policy of full
transparency in its Wild Horse and Burro Program. BLM IM 2011-040, Protocols for Media at
Wild Horse and Burro Gathers. This national policy further states that the agencys staff should
work to ensure that the public/media have opportunities to safely observe gather activities at the
trap site and temporary holding facilities when practicable. Id. (emphasis added). The BLM
further purports to welcome[] media interest in its management of wild horses and to be
committed to working with members of the media to accommodate reasonable requests for
access. BLM IM 2011-040. More specifically, the Hines Corrals are open to public tours.5
Indeed, Ms. Kathrens has visited the Hines Corrals on more than one occasion to assess and
document the health of the wild horses maintained there, including the individual horses that are
to be the subject of BLMs sterilization research. It is thus quite clear that there is a public right
to observe and record these wild horse management activities.
Further, my clients right to observe and document these procedures is critical to the
public interest in monitoring the BLMs activities to ensure the humane treatment of federally
protected wild horses. Any restrictions that BLM imposes on this right must be narrowly
tailored to serve the governments overriding interests. Leigh, 954 F. Supp. 2d at 1101. A
reviewing court will not rubber-stamp an access restriction simply because the government says
it is necessary. Leigh v. Salazar, 677 F.3d 892, 900 (9th Cir. 2012). Instead, a reviewing court
has a duty to conduct a thorough and searching review of any attempt to restrict public access.
Id.
C. Specifics Of Our Request
Although we are confident that a reviewing court would find that our clients have a clear
right to observe and record the BLMs activities at the Hines Corral, we hope that litigation will
not be necessary to vindicate our clients interests and Constitutional rights. We request several
steps that BLM can take to accommodate our clients interests.
First, because the BLM has not made clear when precisely it will begin conducting this
sterilization research, we request that you disclose that information as soon as possible.
Second, again, our clients request an opportunity to send representatives to attend,
observe, and record these procedures including all three aspects of the sterilization research,
i.e. ovariectomy by colpotomy, tubal ligation, and hysteroscopically-guided laser ablation. Once
the BLM tells us when each procedure will take place, we can work with the agency to identify
the individuals who will attend and record these events.
Third, we again wish to stress that our clients most pressing concern is with the BLMs
proposed ovariectomy-by-colpotomy research. Ovariectomy-by-colpotomy is the most invasive
sterilization method that the BLM is proposing to undertake on these wild horses, involving
literally reaching inside a mare, without any tool to visualize the mares organs, to identify the
5

http://www.blm.gov/or/districts/burns/wildhorse/corral.php

ovaries by touch and to remove them by severing them with a loop of chain. EA at 1819.
Particularly because this procedure will be occurring on wild horses that are pregnantand that
it is also a procedure that the BLM already proposes to use on the public range where access to
sanitary conditions and quality veterinary care will be limitedour clients are extremely
concerned about the inhumane results of this highly invasive experimentation on both adult
horses and their foals.
BLM has elected to move forward with research into ovariectomy-by-colpotomy
despite a contrary recommendation by the National Academy of Sciences (NAS)because
the surgical complications of performing this technique on wild horse mares at various
gestational stages has not been well documented. Id. at 5. In other words, the BLMs research
on this procedure necessarily acknowledges that inhumane results will occur; the chief issues
that the BLM is planning to study are how often pregnant mares will be injured or die, and how
often their foals will be aborted. See id. at 21. Therefore, our clients have obvious concerns that
this extremely invasive procedure will lead to highly inhumane results.
In addition, of the procedures that BLM has decided to study, ovariectomy-by-colpotomy
is the method with the least research value. Indeed, the BLM elected to fund this particular
research despite several strong reasons not to do so. Thus, in contrast to the two other minimally
invasive sterilization techniques to be performed for this research at the Hines Corrals, the NAS
recommended against dedicating research funds to ovariectomy-by-colpotomy because the
proposal contained no science or experimentation. Id. at 5. In fact, despite the BLMs
statement that the rate of surgical complications of this invasive procedure has not been well
documented, EA at 5, the BLMs EA contains significant data on this very question. For
example, the EA includes a discussion of how often ovariectomies result in abortions in domestic
mares at different gestational stages. EA at 133. Similarly, the NAS also described data on this
issue, noting that the proposed ovariectomy-by-colpotomy research did not propose investigating
any new surgical techniques, and that the only novelty in this proposal is that the procedure
would be performed on free-ranging rather than domestic horses. EA at 108. Given that
domestic and wild horses are members of the same species, and differentiated chiefly by their
behavior, the NAS Committee did not consider this difference to be a matter of research. Id.
Indeed, the NAS committee also provided other reasons not to proceed with this research.
It expressly noted that this procedure could result in higher fatalities than reported in scientific
literature. Id. Additionally, it noted that the other, far less invasive, sterilization procedures that
the BLM is proposing to undertake at the Hines Corrals would be saferwith less risk of
hemorrhage and eviscerationand probably less painful. Id. Thus, the NAS committee
concluded that those less invasive procedures, if successful, should replace . . . ovariectomy via
colpotomy as surgical approaches for permanent sterilization. Nevertheless, despite this strong
scientific criticism, BLM has decided to go forward with this unnecessary and inhumane
experimentation.
As such, our clients have an especially strong interest in observing and documenting the
results of this highly invasive and unnecessary procedure. However, if the BLM were willing to

abandon this particular aspect of the upcoming research, our clients would consider withdrawing
their request to observe and record the remaining research.
Conclusion
Because of the publics strong interest in this matter, and the scientific controversy
surrounding the BLMs sterilization research, we request an immediate response to our request
so that our clients can make necessary arrangements to attend the procedures before they occur.
Therefore, please respond to this letter by no later than Thursday, July 28, 2016. If we do
not hear from you by then we will assume that the agency has denied our clients request and
will file suit to protect our clients interests in this matter and their First Amendment rights.
Sincerely,
Nick Lawton
Meyer Glitzenstein & Eubanks LLP
4115 Wisconsin Ave. NW Ste. 210
Washington, DC 20016
(202) 588-5206
nlawton@meyerglitz.com
Katherine A. Meyer
Meyer Glitzenstein & Eubanks LLP
4115 Wisconsin Ave. NW Ste. 210
Washington, DC 20016
(202) 588-5206
kmeyer@meyerglitz.com

CC:
Julianne Tilton, on behalf of
Ron Dunton
Acting State Director, Oregon
Bureau of Land Management
Via electronic mail: jtilton@blm.gov

Travis Annatoyn
United States Department of Justice
Environmental and Natural Resources Division
Via electronic mail: travis.annatoyn@usdoj.gov

Neil Kornze
Director
Bureau of Land Management
Via electronic mail: Director@blm.gov

Rebecca Jaffe
United States Department of Justice
Environmental and Natural Resources Division
Via electronic mail: Rebecca.jaffe@usdoj.gov

Exhibit A: Letter From Members of Congress Opposing the Sterilization of Wild Horses

~nngri~aii uf t1!i~ Thtik~i ~tati~

~a~I!in~tnn, ~Qt 2U515

The Honorable Kenneth L. Salazar

Secretary of the Interior
U.S. Department of the Interior
1849 C Street NW
Washington, DC 20240

July 28, 2011

Dear Secretary Salazar,
In recent months the Bureau of Land Management (BLM) has unveiled detrimental new policies
in regards to the management of Americas wild horses and burros. Recently selected as the
management tool for the White Mountain and Little Colorado herds in southern Wyoming, the
most disconcerting of these is the decision to create non-reproducing herds on legally designated
wild horse and burro herd areas.
Since the designated Proposed Action in the Environmental Assessment is different than the
chosen alternative in the Decision Record, such action could be in violation of the National
Environmental Policy Act, which requires full justification of any change to the chosen
alternative and a public comment period. On June 21, 2011, BLM Rock Springs Field Office
issued a public letter noting they were re-evaluating certain aspects of its Decision Record
related to spaying gathered mares, and issued a modified Decision Record for gathering wild
horses. This modified Decision Record returns only gelded wild horses to the herd management
areas, and does not include spaying.
To accomplish the goal of creating a non-reproducing herd, the BLM proposes to geld stallions
and also spay wild horse mares. Both procedures are dangerous for wild animals, but the spaying
of female horses is a practice not even recommended for domestic mares, let alone wild ones.
Immunocontraception is a much safer, more humane, and less costly method of fertility control,
which has already proven to reduce population growth rates, and can reduce the need and
frequency of removals, and ultimately, result in long-term reductions in off-the-range
management costs.
Only one field example of spaying of wild mares exists. This spaying took place at the Sheldon
National Wildlife Refuge in Nevada. At least, ten percent (30 horses) of the mares died. The
Sheldon operation was conducted on a much smaller scale than what is currently under
consideration by BLM. It is also possible that the recorded number of deaths at Sheldon is far
below the actual number of deaths- some mares were released to the wild and not tracked to
determine if more deaths occurred. The potential risk to the affected herds is troubling. Even the
United States Department of Agriculture (USDA) Animal and Plant Health Inspection Service

PRINTED ON RECYCLED PAPER

(APHIS) veterinarian, Dr. Al Kane, expressed concerns about the procedure. In fact, the majority
of equine and large animal veterinarians strongly discourage the practice, particularly with wild
animals. The surgical environment needs to be completely sterile and recovery time takes at least
a month, neither of which is something BLM has the capacity to undertake. At Sheldon the wild
horses were hoisted into front loaders of tractors where the procedures were performed.
Although sterilization is mentioned in the Free-Roaming Wild Horse and Burro Act, it is
intended to reference population control, and not the creation of completely non-reproducing
herds, which would result in the extinction of wild horses in their legal herd areas. Natural
controls on population levels are cited within the same sentence of the Act, a concept that your
agency has not taken into serious consideration. Predator management through mountain lions
has been enormously successful in stabilizing the population of the Montgomery Pass herd on
the California-Nevada border. Due to predation of foals by mountain lions, that herd has not had
a roundup in almost 30 years. The same is true for the Cerbat wild horses of Arizona who have
shown a stable population in an ecosystem with natural wildlife predation.
BLM has a documented history of inhumane treatment of wild horses and burros during
roundups. This inhumane treatment comes at an enormous price to the animals, but also to
American taxpayers. Short-term and long-term holding of wild horses and burros cost the
taxpayer $36.9 million in fiscal year 2010. With the continuation of roundups this summer, that
cost will certainly escalate.
We are also concerned that BLM has consistently failed to round up its target number of wild
horses. There are numerous examples of actual herd numbers ending up to be far fewer than
stated in the BLM Environmental Assessments. For example, a roundup this winter in the
Antelope Complex of northeastern Nevada resulted in the removal of 1,398 wild horses. BLM
maintained that there were 2,705 horses on the range and intended to remove between 1,8672,228 of those horses. If BLM estimates of herd size are consistently more than actual herd size,
then the stated overpopulation problem could be much more manageable than presented by BLM
and require far fewer roundups. This discrepancy demonstrates the need for the execution of
more accurate censuses.
Given the current methods employed, we have serious doubts about BLMs ability to provide an
accurate census of the wild horse and burros. Despite pressure from outside groups for a state-ofthe-art multispectral camera census using unmanned aircraft- currently in use by Homeland
Security, NASA, and the Department of Defense- it appears no real effort has been made to
explore this option. The potential for partnership with other Federal Agencies with access to this
technology exists. A partnership between NASA and the US Forest Service has resulted in the
use of the unmanned aircraft to spot forest fires. Customs and Border Protection has unmanned
aircraft at our Northern and Southern Borders that could be engaged for accurate wildlife census
in the Western states.
We are also concerned about BLMs overall commitment to herd conservation and stewardship.
BLM budget allocation to census operations and actual on the ground range monitoring was a
paltry $1 million last year, while roundup operations alone constituted over $7.7 million. It
appears that BLM is focusing their efforts on eradication of wild horses and burros, rather than

actual management and monitoring on the range. The wild horses and burros of the American
west deserve the treatment afforded to them by the Wild Horses and Burros Act.
Please take our concerns into account when evaluating the relevant BLM programs and help
rectify the discrepancy between the horse conservation and the in-the-field practices of BLM.
We ask that BLM not engage in the drastic, inhumane practice of spaying and gelding wild
horses to create non-producing herds in protected areas. We also ask that BLM cease all
roundups pending the results of the National Academy of Sciences (NAS) review of BLMs
Wild Horse and Burro Program.
Sincerely,

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CC: Mr. Bob Abbey, Director, Bureau of Land Management

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