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Wild Horse Round-Up in Nevada Essay

The rounding up wild horses and leading them to their new destination, howbeit, for the slaughter or sales, has created a rift of an US (i.e. particularly; citizens of Nevada) and THEM (i.e. Federal Government, BLM) mentality. The animal activist is citing cruelty to animals and stifling the “First Amendment, Freedom of the Press”, on the part of BLM. The following article was quoted from USA Today:

[A federal roundup of wild horses in Nevada was scheduled to resume Thursday and to continue through this weekend despite nearly two dozen animal deaths since it began.

The Bureau of Land Management (BLM) says three of the deaths were due to injury and 18 due to severe dehydration following a drought. Horse activist Laura Leigh, whose lawsuit put a temporary halt to the roundup July 14, blames the deaths on the BLM, which she says allowed the horses to become dehydrated and held the roundup during the hottest season of the year. “This is foaling season, it could have been done earlier, it could have been done last fall,” Leigh says. “This is not following the mandate to manage and protect our horses. It’s just wrong.” She and other activists also complain that the BLM has blocked them from observing the roundups to control the flow of images and public opinion. The BLM will escort up to 20 members of the media and the public to observe roundup operation today and Saturday for the first time since the roundup began July 10.

The BLM says the roundup of wild horses is a necessity because the mustang population is growing so fast that horses are running out of food and harming the native land and wildlife. Agency estimates show 38,000 mustangs and burros roam 10 Western states; half are in Nevada. Leigh and other activists say the agency is moving the animals to clear the way for livestock grazing and energy interests. Elliot Katz, founder of In Defense of Animals, which filed a separate lawsuit, says wild horses are a low priority nationally because they don’t produce a profit. “They’re just in the way of corporations who have cattle interests or want to do mining,” Katz says. “There’s been a gradual continuing effort to get rid of them.”] (Dorell, 7/29)

BLM’s stands its ground by stating they are “required by law to balance the needs of multiple interests on public lands, including wild horses, wildlife, mining and livestock. Wild horses, which have few predators and double their population every four years, can damage habitat shared by endangered and threatened species such as the pygmy rabbit and the lahontan cutthroat trout, says Heather Emmons, a spokeswoman for the BLM in Nevada.” (Dorell, 7/29)

One of the many law suits that have been filed comes out of New Mexico and has gone to the Supreme Court. KLEPPE v. NEW MEXICO, 426 U.S. 529 (1976) 426 U.S. 529


No. 74-1488.

Argued March 23, 1976
Decided June 17, 1976

The Wild Free-roaming Horses and Burros Act (Act) was enacted to protect “all unbranded and unclaimed horses and burros on public lands of the United States” from “capture, branding, harassment, or death,” to accomplish which “they are to be considered in the area where presently found, as an integral part of the natural system of the public lands.” The Act provides that all such animals on the public lands administered by the Secretary of the Interior through the Bureau of Land Management (BLM) or by the Secretary of Agriculture through the Forest Service are committed to the jurisdiction of the respective Secretaries, who are “directed to protect and manage [the animals] as components of the public lands . . . in a manner that is designed to achieve and maintain a thriving natural ecological balance on the public lands,” and if the animals stray from those lands onto privately owned land, the private landowners may inform federal officials, who shall arrange to have the animals removed.

Appellees, the State of New Mexico, its Livestock Board and director, and the purchaser of three unbranded burros seized by the Board (pursuant to the New Mexico Estray Law) on federal lands and sold at public auction, and whose return to public lands had been demanded by the BLM, brought this suit for injunctive relief and for a declaratory judgment that the Act is unconstitutional. A three-judge District Court held the Act unconstitutional and enjoined its enforcement.

Held: As applied to this case, the Act is a constitutional exercise of congressional power under the Property Clause of the Constitution, which provides that “Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” Art. IV, 3, cl. 2. Pp. 535-547. (FindLaw, June) (a) The Clause, in broad terms, empowers Congress to determine what are “needful” rules “respecting” the public lands, and there is no merit to appellees’ narrow reading that the provision [426 U.S. 529, 530] grants Congress power only to dispose of, to make incidental rules regarding the use of, and to protect federal property. Pp. 536-541. (FindLaw, June)

(b) In arguing that the Act encroaches upon state sovereignty and that Congress can obtain exclusive legislative jurisdiction over the public lands in a State only by state consent (absent which it may not act contrary to state law), appellees have confused Congress’ derivative legislative power from a State pursuant to Art. I, 8, cl. 17, with Congress’ powers under the Property Clause. Pp. 541-546. (FindLaw, June)

(c) The question of the Act’s permissible reach under the Property Clause over private lands to protect wild free-roaming horses and burros that have strayed from public land need not be, and is not, decided in the context of this case. Pp. 546-547. (FindLaw, June)

A law suit filed and made it to the U.S. Courts of Appeals, Federal Circuit was initiated from a rancher family of Fallini who states in the following law suit the cost of the wild horses to them personally: FALLINI v. UNITED STATES

Susan L. FALLINI, and Joseph B. Fallini, Jr., in each of the following capacities:  as an individual person and successor to the interest of Helen Fallini as sole heir of Helene Fallini, deceased, executor of the last will of Helene Fallini, and Trustee of the Helene Fallini Living Trust and the Helene Fallini Living Trust as the sole distributee of the last Will of Helene Fallini, Plaintiffs-Appellants, v. The UNITED STATES, Defendant-Appellee. No. 94-5110.

— June 08, 1995
Before MICHEL, LOURIE and BRYSON, Circuit Judges.

William F. Schroeder, Vale, OR, argued for plaintiffs-appellants.   With him on the brief was William A. Schroeder, of Boise, ID.Peter A. Appel, Attorney, Environment and Natural Resources Div., Dept. of Justice, Washington, DC, argued for defendant-appellee.   With him on the brief were Lois J. Schiffer, Asst. Atty. Gen., John A. Bryson and Dorothy R. Burakreis, Attorneys.   Of counsel was Laura B. Brown, Office of the Sol., Dept. of the Interior, Washington, DC. James L. Huffman, Dean and Professor of Law Director, Natural Resources Law Institute, Northwestern School of Law, Lewis and Clark College, of Portland, OR, was on the brief for amicus curiae, Water for Life, Inc. (FindLaw, June) In this Fifth Amendment “takings” case, the Fallinis, who are engaged in cattle ranching in Nevada, argue that the federal government has taken personal property from them without compensation.   The Fallinis contend that the government affected a “taking” by requiring them to provide water to wild horses living in the area in which the Fallinis conducted their ranching activities.

The Court of Federal Claims ruled against the Fallinis, concluding on motion for summary judgment that they had no property right that was taken by governmental action.  Fallini v. United States, 31 Fed.Cl. 53 (1994).   We conclude that their complaint was not filed within the applicable statute of limitations period and that the complaint should be dismissed on that ground. (FindLaw, June) The suit alleges the wild horses are costing their family approximately $1 million between 1971 and 1991 for the watering of the animals which they have not been allowed by the BLM to fence off the watering areas in such a way to grant cattle access by deny horses from accessing the water supply. In conclusion of the law suit filed by the Fallinis family states as follows: What the Fallinis may challenge under the Fourth Amendment is what the government has done, not what the horses have done.

The only governmental action that could constitute a compensable taking in this case is the government’s directive forbidding the Fallinis from shooing the horses away from the water that the Fallinis have produced at their developed water sources.   That governmental action cannot be regarded as recurring with every new drink taken by every wild horse, even though the consumption of water by the wild horses imposes a continuing economic burden on the Fallinis.

See Delaware State College v. Ricks, 449 U.S. 250, 258, 101 S.Ct. 498, 504, 66 L.Ed.2d 431 (1980) (proper focus, for statute of limitations purposes, “is upon the time of the [defendant’s] acts, not upon the time at which the consequences of the acts became most painful”).   Because the Fallinis identify the enactment of the Wild Free-Roaming Horses and Burros Act as the governmental action that prevented them from fencing the horses away from their water sources, and because they admit that they suffered injury from the date of enactment, their claim must be regarded as accruing long before they filed their present suit. (FindLaw, June) III

Based on our analysis of the Fallinis’ takings claim, we conclude that their claim was time-barred.   We therefore vacate the judgment and remand this case to the Court of Federal Claims with instructions to dismiss the complaint as untimely. (FindLaw, June) Each party shall bear its own costs.

BRYSON, Circuit Judge. (FindLaw, June)

The round-up of the wild horses is complex with legitimate issues on all sides. I see four distinct (legitimate) sides in this fight. They is the BLM, the animal activist, the media, and the cattle ranchers. The BLM cites it has a legal responsibility to round them up for control of population and preservation of public lands, including wild horses, wildlife, mining and livestock. The animal activists cite cruelty on the method used by the BLM with the time of year the round-ups are conducted to how they are treated while in captivity. The Public News Media cites they are being denied the first amendment right to the “Freedom of the Press” by being restricted access during the round-ups. Lastly, there is the cattle rancher that is citing a Fourth Amendment violation by the seizure of the water without their permission.

Somehow there needs to be a balance of the issue. In my opinion, the Public News Media doesn’t have a say in the matter because they twist any issue for the selling of their news and that is why they are in the fight. The animal activist have no place in this matter either because they are not any different than the News Media. I see two main players that have a stake in the holdings. The BLM and the cattle ranchers. Those are the two entities that are directly affected by this ordeal. The BLM has to strike a delicate balance of their responsibilities to Federal and State Law and to accomplish this with disturbing anybody’s ZEN. The cattle ranchers are trying to make a living in an economy that is seeing less and less profit.

Dorell, O. (7/29/2010). Federal roundup of wild horses resumes in Nevada. Retrieved from http://http://www.usatoday.com/news/nation/2010-07-22-wild-horses_N.htm FindLaw. (June 08, 1995). United States Court of Appeals,Federal Circuit, FALLINI v. UNITED STATES. Retrieved from http://caselaw.findlaw.com/us-federal-circuit/1336480.html FindLaw. (June 17, 1976 Decided). U.S. Supreme Court, KLEPPE v. NEW MEXICO, 426 U.S. 529 (1976). Retrieved from http://caselaw.lp.findlaw.com/cgi-bin-getcase.pl?court=us&vol=426&invol=529

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