The news, nearly all of it grim, coming out of the Bureau of Land Management’s latest round of wild horse roundups in Nevada makes a person long for the return of cult movie hero Billy Jack. An ex-Green Beret who settles on an Indian reservation after his return from Vietnam, Billy Jack quickly assumes the role of protector—of the Native Americans, of the Freedom School, and of the wild horses that are being gathered up and sold for pet food.
Billy Jack is a martial arts expert whose way of dealing with a problem usually involves a kick upside someone’s head. It’s an elegant, satisfying, and usually illegal, solution.
There have been a few real world attempts to sidetrack the BLM’s mustang management efforts, but none in the last few years. The Animal Liberation Front and the Earth Liberation Front, radical organizations with the unfortunate acronyms ALF and ELF, claimed responsibility for burning BLM facilities and releasing hundreds of captured mustangs in the late 1990s. ALF and ELF since have been branded as terrorist organizations by the FBI and advocating their approach today probably violates the Patriot Act and who knows how many other federal laws.
That leaves the courts, and therein rests the problem.
In 1971 Congress passed the Wild Free-Roaming Horses and Burros Act because "wild free-roaming horses and burros are living symbols of the historic and pioneer spirit of the West; that they contribute to the diversity of life forms within the Nation and enrich the lives of the American people; and that these horses and burros are fast disappearing from the American scene." Ironically, the Act was written to protect what remained of the wild horse and burro herds rather than potentially put them at risk.
The BLM was charged with implementing the Act, a delegation of power that in 1976 was ruled constitutional by the United States Supreme Court. Whether you like the BLM or hate it, it’s here to stay.
When an individual or group seeks court intervention to halt some action by a governmental agency, as happened recently when artist and activist Laura Leigh sought an injunction to halt a BLM gather in Nevada, the court has limited options. A judge cannot simply substitute his or her own judgment for the agency’s. Instead, a court can only set aside agency action that is arbitrary or an abuse of discretion, contrary to the constitution, or outside statutory jurisdiction. This sounds good, but in fact is a very narrow grant of judicial power. Judges tend to defer to an agency’s interpretation of its own regulations, assuming rightly or wrongly that that agency knows more about the issue than the court. This is apparently what happened in the Nevada courtroom.
Federal Judge Larry Hicks, who is an "avid equestrian" according to his court website biography, issued a temporary restraining order halting the roundup on July 14. After hearing testimony from both sides two days later, however, Hicks lifted the restraining order. The controversial roundup resumed.
Judge Hicks did rule against the BLM on one claim. The agency’s closure of 27,000 acres of public land, which effectively barred the public and press from monitoring the mustang roundup, was illegal on First Amendment grounds, the judge said. He left open the possibility of a "more reasonable closure" of the public land, however, which is troublesome.
In the shadow of the terrorist attacks on September 11, the Patriot Act and other government intrusions on personal freedoms were justified by the dubious mantra "if you haven’t done anything wrong, you don’t have anything to hide." If the BLM has nothing to hide, the agency should welcome public scrutiny rather than ban it.