A top federal court on Wednesday appeared ready to force changes in a Forest Service plan that reduced wild horse protections in a remote Northern California county.
With tough questions and some pointed statements, three judges on the U.S. Court of Appeals for the District of Columbia Circuit revealed their apparent skepticism about management of the Devil’s Garden Plateau Wild Horse Territory in Modoc County. The Forest Service shrank the territory by about 25,000 acres in 2013.
“You’ve got a problem here,” Judge Patricia Millett told a Justice Department attorney.
At another point during the 30-minute oral argument, Judge Robert L. Wilkins called a government assertion “factually unsupported,” while Judge David Tatel offered that the wild horse advocates “still have a case” even if the government prevails on one issue.
The tenor and the content of the oral argument held before what is often called the nation’s second-highest court suggested eventual victory for the advocates who are challenging the Forest Service. Underscoring the stakes, an attorney for the California Cattlemen’s Association, the state’s farm bureau and other groups sat at the table alongside the federal government’s team.
“Why does it matter?” Millett asked David Zaft, an attorney for the American Wild Horse Preservation Campaign. “What are the practical consequences?”
Millett and her two colleagues were appointed by Democratic presidents, to a court that has often served as a feeder to the Supreme Court. Oil portraits of past D.C.-based appellate judges, including current Supreme Court Justice Ruth Bader Ginsburg, hang on the walls of the fifth-floor courtroom.
The agency needed to wrestle with this in an environmental assessment, and it didn’t.
Judge David Tatel.
The oral argument – which drew a crowd of students, lawyers and others – capped a challenge to the Forest Service’s 2013 management plan for the wild horse territory located within the Modoc National Forest. The site is one of 37 federal wild horse or burro territories established in six Western states. California is home to eight of the active territories, including several in the Inyo and Klamath national forests.
The Devil’s Garden territory consisted of two parcels totaling 236,000 acres when it was established in 1975. The Forest Service adjusted the Devil’s Garden borders in the 1980s to create a larger, unified territory, some of it including private land previously used for grazing by livestock. The Forest Service did not take possession of the private land within the territory boundaries.
“Sometime in the ’80s, someone draws a map that connects the units, and that’s when the confusion begins,” Justice Department attorney Mark R. Haag said.
While the Forest Service further recognized these new borders in a 1991 forest plan, a new management plan in 2013 shrank the territory back to the original 1975 layout. The change cut the wild horse territory by about 25,000 acres as it reverted to its original size.
“The decision by the Forest Service (was) grossly overbroad,” Zaft said, adding that the agency’s environmental assessment “didn’t really wrestle” with some key issues.
Millett, calling it a Forest Service “problem,” further declared that “this was more than just a ‘whoops’ on a map.”
The California Cattlemen’s Association, state farm bureau and others favoring the smaller territory noted in a legal brief their concerns about the “unprecedented wild horse population explosions that have spilled over onto adjacent private lands and into government-funded offsite holding facilities.”
The current plan sets a target range for the wild horse population of roughly 200 to 400. In a 2014 report, the Forest Service said the population had reached upward of 1,900.
In a 2015 ruling, U.S. District Judge Amy Berman Jackson upheld the Forest Service’s action as administratively justifiable.