[00:00:01] Speaker 00:
Case number 15-5332, American Wild Horse Preservation Campaign at Elle Appellant versus Thomas J. Vilsack, Secretary, U.S.

[00:00:10] Speaker 00:
Department of Agriculture at Elle.

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Mr. Zaft for the appellant.

[00:00:14] Speaker 00:
Mr. Haig, excuse me, for the appellees.

[00:01:23] Speaker 04:
Okay, thank you.

[00:01:25] Speaker 04:
Good morning.

[00:01:26] Speaker 04:
May it please the court?

[00:01:27] Speaker 04:
Your honor, your honors, excuse me.

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Before the court this morning is the Forest Service's decision in 2013 to remove over 23,000 acres from the heart of the Devil's Garden wild horse territory in Modoc County, California.

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The Forest Service did not make this decision based on any findings that had to do with the conditions of the range.

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It did not make this decision based on an objective to further the goals of the 1971 Wild Free Roaming Horses and Burrows Act, or to further the multiple use objectives that the Forest Service implements pursuant to the National Forest Management Act.

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The reason that the Forest Service made this decision, the reasons that it gave, were one, that the addition of these, what we refer to as the middle section lands to the wild horse territory, had never been formally

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ratified in any way to that the Forest Service could never have actually incorporated these lands into the Wild Horse territory because some portion of them were private either in the past or currently.

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And the third justification that the agency gave

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was that the Forest Service never actually managed the presence of wild horses in these middle section lands.

[00:02:55] Speaker 01:
Let me just clarify what your position is on what you call the second reason that was given, which is that the middle section couldn't have been, the Forest Service contends that it couldn't have been incorporated legally under the statute because some of it is in private.

[00:03:15] Speaker 01:
your position on that?

[00:03:18] Speaker 01:
Because I couldn't quite get that from your briefs.

[00:03:22] Speaker 04:
Okay, Your Honor.

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Our position is that that is incorrect as far as it pertains to the vast majority of the middle section lands.

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And I want to clarify

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Our position is not that the Forest Service is authorized to require private individuals on their own land manage wild horses or keep wild horses, okay?

[00:03:43] Speaker 04:
So there's some 10% of this middle section that is currently privately held and we agree that's not part of the wild horse territory that's private land.

[00:03:53] Speaker 05:
But the Forest Service declared in the

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The Forest Service, the 91 plan that you're challenging included all the 250,000 acres.

[00:04:05] Speaker 04:
It included, yes, it added about 23,000 acres.

[00:04:08] Speaker 05:
Yes, and so it added all, I mean, if you're right, it added all 23,000 acres, including the acres that were privately held.

[00:04:16] Speaker 04:
Right, Your Honor, but the documents and the records show that in the Avanzino allotment, where about half of that allotment is privately held,

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horses were not, there was no management level assigned to that allotment.

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Now there were management levels assigned to other allotments in the middle section, the big sage allotment and the bulls allotment and the dock.

[00:04:39] Speaker 05:
Isn't that your second point that even if the Forest Service is correct that this was a mistake and this was never part of it that in any event they were managing?

[00:04:48] Speaker 04:
Well and that's exactly right.

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Isn't that your second point?

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So that doesn't answer Judge Wilkins question.

[00:04:54] Speaker 04:
Well, I guess here's what I would say, Your Honor.

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If the Forest Service had come out in 2013 and said, you know what, we had added these middle section lands, but just to clear up some confusion, these privately held lands are not part of the wild horse territory, we wouldn't be here today.

[00:05:08] Speaker 04:
Okay, so if that was the decision of the Forest Service was, you know, this 10% of the middle section that's privately held,

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is actually not part of the wild horse territory, and including that was an error I think my clients would never have filed a suit.

[00:05:24] Speaker 01:
But that's not the way you're litigating this case.

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You're litigating this case as if the entirety of that middle section was and is appropriately part of the plan.

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We're here.

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We're focused on the fact that as Judge Tatel mentioned that the Forest Service added these middle section lands and managed wild horses there for decades and then in 2013 turned around and said, you know, this was all some sort of administrative error.

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Now we're going to remove all 23,000 acres that were added in the mid-1980s and that were formally added in 1991 when they adopted the Forest Plan.

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We're saying

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You know, for an agency to consistently manage these middle section lands for the presence of wild horses for decades.

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And then to turn around and say that this was all an error That is not reason decision-making especially when they don't you know all the three reasons that I lay down the beginning reason decision-making for them to manage the entirety of that section when the statute says that they can't and

[00:06:42] Speaker 04:
Your Honor, I don't know that the statute says that they can't manage the areas that they added in the mid-1980s, setting aside the small fraction that are privately held.

[00:06:57] Speaker 01:
Okay, I don't want to set that aside, but that's critical part of your contention.

[00:07:03] Speaker 04:
Well, then the decision that the Forest Service made to address that, if they were only focused on those private lands, is grossly overbroad, I guess is what we would say, given that it's taking

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90% of the middle section, which is not privately held and withdrawing that from the wild horse territory.

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And secondly, I'd say there are these publicly held parts of the middle section where the Forest Service for decades was managing the presence of wild horses.

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They even had minimum

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management minimum levels for horses in the Big Sage and the Bulls allotments from at least 1994, perhaps earlier, all the way through 2012.

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This is like... So maybe the problem

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It's the problem here that if to the extent there's some confusion, at least about the 90 versus 10 percent, that at a minimum here, the agency had to grapple with the history and explain what it was doing, and it didn't do that here.

[00:08:01] Speaker 02:
That's, I guess, what I had understood your position to be, that they didn't – if there's confusion about this, that should have been part of what they addressed instead of just going, oops.

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and erasing the whole thing.

[00:08:13] Speaker 04:
That's right, Your Honor, and I think I would just make two points to tag along to that.

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They didn't really wrestle with anything.

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They never addressed the fact, in their decision-making documents, they never addressed the fact of what they had been doing.

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They never acknowledged it.

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They actually said all along, and they even say today,

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We never had any horses there that we managed.

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So really, this doesn't have any environmental impact.

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We can just withdraw all these lands from the wild horse territory underneath them.

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We don't have to analyze anything because we're not changing the status quo.

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That is not true.

[00:08:47] Speaker 04:
The record, what their position is at direct odds with the record, which shows that they did add these lands to the wild horse territory, that this was formally incorporated in the 1991 Forest Plan, where they clearly and unequivocally state that they were legally obligated to manage a single wild horse territory of 258,000 acres.

[00:09:11] Speaker 04:
And then we have all of these wild horse inventory forms that show that that is in fact what they did.

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I thought they also actually moved horses from outside the territory into

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the bulls and big sage.

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That's right, Your Honor.

[00:09:25] Speaker 02:
So some of those wild horses there.

[00:09:26] Speaker 04:
Yeah, some of those wild horse territory inventory forms show that they would identify horses outside of the larger contiguous wild horse territory.

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And when they did, in some instances, they moved them back into the wild horse territory, including into the middle section.

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So they always treated the middle section as if it was part of the larger wild horse territory.

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Could you answer a practical question for me that I don't understand?

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Why does it matter?

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What are the practical consequences of not including this 90% portion in the wild horse territory?

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As I read the statute, the statute essentially makes all the wild horses

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wards of the secretary or secretaries.

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They're supposed to protect those.

[00:10:15] Speaker 02:
The wild horse territory thing is the creation of regulations.

[00:10:19] Speaker 02:
But the horses are, I thought as I read this statute, would still be protected whether they're in a regulatory territory or not, as long as they're on public lands.

[00:10:29] Speaker 02:
So what is the consequence of this not being a regulatory territory?

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They just don't set management levels?

[00:10:37] Speaker 04:
Well, there would be two things.

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There's two ways I'd like to respond to that.

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First of all, just on the ground, practically, what would happen is you're taking away this large swath of territory from the very center of the wild horse territory.

[00:10:48] Speaker 02:
Well, are there fences so then the horses can't go?

[00:10:50] Speaker 02:
Or I thought the horses could still...

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passed through.

[00:10:54] Speaker 02:
It's just they didn't have this legal status.

[00:10:55] Speaker 04:
Yeah, the horses would not be able to travel from the east to the west range because those are no longer contiguous.

[00:11:01] Speaker 04:
The middle section created this outflow.

[00:11:04] Speaker 02:
They may not be contiguous on a map.

[00:11:06] Speaker 02:
When they declare something a wild horse territory, do they throw up fences so they can't go?

[00:11:13] Speaker 04:
Well, and we saw that when horses stray outside of the wild horse territory, they're captured and removed.

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And so they would be, and the agency has said they will zero out the horses in the middle section.

[00:11:24] Speaker 04:
The other thing I wanted to say, though, Your Honor, if I can take a step back and look at the bigger picture, is this the way that we want agencies to conduct themselves, okay?

[00:11:32] Speaker 04:
And this brings up, I think, the Encino motorcars case, which we cite.

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that the Supreme Court handed down last year.

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You have a situation here where an agency has consistently managed horses in a particular way and managed the entire wild horse territory in a particular way for decades.

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And they even, you know, formally state this in the governing 1991 force, but this is how we're going to do it.

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And then suddenly, after many decades of doing this,

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the agency says, whoops, this was all an administrative error.

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And from an administrative policy standpoint, is this the way we want agencies to conduct themselves?

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They didn't provide an analysis or they didn't struggle with

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what were the implications of this.

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They never even acknowledged the status quo of what they were doing.

[00:12:24] Speaker 05:
Well, aren't there two different issues here?

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I just want to be sure I understand.

[00:12:28] Speaker 05:
Let's just assume, for example, that for purposes of discussion, that we think that the

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that the agency's argument that it could never legally have included this in the territory justifies its decision, its 2013 decision to say that these were never properly, never included, these lands.

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Assume we think that.

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You still have a case, right?

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Your case is that, well, it doesn't make any difference because according to the evidence that you submitted, they in fact managed wild horses on that land actively, correct?

[00:13:06] Speaker 05:
Yes.

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And that they failed to take that into account in their environmental assessment.

[00:13:10] Speaker 05:
Exactly right.

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Is that right?

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So there's two issues, right?

[00:13:14] Speaker 05:
Yes, Your Honor, and actually- And the second issue doesn't really have anything to do with the first one, does it?

[00:13:19] Speaker 04:
I agree, Your Honor.

[00:13:20] Speaker 04:
There's a case, I think it's the city of Kansas City case, where they say even if the agency's interpretation of this statute survives, in that case, the Chevron review, there's an independent issue that still must be resolved, which is whether or not the environmental review was done properly under NEPA and the APA.

[00:13:43] Speaker 04:
And that is our position.

[00:13:47] Speaker ?:
OK.

[00:13:48] Speaker 02:
Do you agree that, at least as to the 90%, there was any legal barrier to them managing horses on that land in the 80s?

[00:13:57] Speaker 04:
we think there was absolutely no legal barrier.

[00:13:59] Speaker 04:
There's nothing in the Wild Horse Act, and we don't believe there's anything even in the regulations that would preclude the Forest Service from adding these public lands to the Wild Horse territory.

[00:14:11] Speaker 04:
And I believe I might add to that, Your Honor, in the Forest Service Manual, it actually provides that the Forest Service, it authorizes the Forest Service to modify the boundaries of the Wild Horse territory.

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This idea that once the boundaries were set in 1975, they were sacrosanct and could never be changed, I think is wrong.

[00:14:33] Speaker 04:
And actually, we cited a couple of examples where the services sister agency, the Bureau of Land Management, which manages a lot of wild horse areas throughout the country, they have modified the boundaries and even expanded the boundaries of wild horse territory.

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When they created the initial two separate territories,

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In creating that, did they determine that those territories fully encompassed the territory in which horses had occurred in 1971 at the time of the statute's enactment?

[00:15:09] Speaker 02:
Or I guess I had assumed that the territories were somewhat smaller than the factual, empirical evidence as to where horses would have been in 1971.

[00:15:20] Speaker 04:
there's no finding in the record or in the, for instance, the 1975 wild horse management plan where they say, we've done this inventory and these are the exact areas where horses exist.

[00:15:32] Speaker 04:
In fact, there are some straight comments in the record that indicate that horses existed outside of those boundaries, but they said, you know,

[00:15:40] Speaker 04:
So there aren't a lot of findings in the record about what was done.

[00:15:43] Speaker 04:
I might also note that that territory was established in 1975, so the Forest Service has taken the position that you have to limit yourself to where horses were found in 1971.

[00:15:56] Speaker 04:
Well, they didn't go out and do that right away.

[00:15:58] Speaker 04:
In 1975, they established the Wild Horse Territory.

[00:16:02] Speaker 04:
We think the Wild Horse Act authorizes the service not only to establish the Wild Horse Territory, but to modify its boundaries and in some cases expand it as it's done here.

[00:16:13] Speaker 04:
Okay.

[00:16:15] Speaker ?:
Anything else?

[00:16:15] Speaker 05:
Okay.

[00:16:15] Speaker 05:
Thank you.

[00:16:16] Speaker 04:
Thank you, Your Honor.

[00:16:34] Speaker 06:
May it please the Court, I'm Mark Haig from the Department of Justice.

[00:16:38] Speaker 06:
With me at Council Table is Stephen Hirsch of the Department of Agriculture's Office of General Counsel.

[00:16:45] Speaker 06:
And also at Council Table is Caroline Lobdell of the Western Resources Legal Center, who represents the interveners.

[00:16:53] Speaker 06:
I guess I would like to jump in responding to your question, Judge Millett, about why does it matter, which I think also responds to Judge Tatel's question or analysis of two separate issues, the legal question, could the agency do it, and the factual question of what the management was.

[00:17:18] Speaker 06:
The reason it matters is because

[00:17:21] Speaker 06:
the wild, there's a legal question of what Congress intended the agencies to manage as wild horse territory.

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The Wild Horses Act

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instructs the agencies to protect horses where they were found on public lands in 1971.

[00:17:41] Speaker 06:
So I disagree with Mr. Zaft's statement that the agency could designate wild horse territory on lands that was acquired after 1971.

[00:17:58] Speaker 02:
Well, wait, it doesn't say on public lands where horses are found in 1971.

[00:18:03] Speaker 02:
The statute says where they're found.

[00:18:05] Speaker 02:
It says, no, that's right.

[00:18:07] Speaker 02:
If they happen to be on private land and then you got it, it could still be that that private land, in fact, was a place where they were found in 1971.

[00:18:13] Speaker 02:
Nothing would impair your ability to then take it.

[00:18:17] Speaker 06:
That section 1331 of the act says protect them where they're found.

[00:18:24] Speaker 06:
1332 of the act, the definitions, defines wild horses and it defines wild horses as horses that are on public lands.

[00:18:36] Speaker 06:
And when you read the

[00:18:38] Speaker 06:
1331, the definition in 1332, and then the regulations at 16 CFR 222.60, 13, 14, and 15, they make it clear that the agency's view is it has to protect horses and it creates territories where the horses were found on public lands in 1971.

[00:19:03] Speaker 02:
So does that mean, because you've got these territories all over the west, like 36 of them.

[00:19:08] Speaker 02:
Does that mean that all of those capture 100% of the territory in which wild horses were found in 1971, or have you created territories for your management purposes that are smaller, recognizing the horses themselves may still be protected if they wander off?

[00:19:31] Speaker 06:
I'm sure we haven't captured 100 percent, Your Honor, but I think that we that the agency's obligation was to try.

[00:19:42] Speaker 06:
I think there's also a distinction between horses

[00:19:47] Speaker 06:
I think it's important to think about the present, the mere fact that a horse has been there at some point, and whether the area actually constitutes territorial habitat, which is, I think a statutory term, and it's also in the regulations as being the key.

[00:20:03] Speaker 02:
So is there a determination, at least the entire west of the United States, as to the two original territories here, was there ever a determination that those territories were it for purposes of the statutory test of where horses

[00:20:21] Speaker 02:
occurred in 1971.

[00:20:24] Speaker 06:
I think that's what the 1975 territory management plan is.

[00:20:28] Speaker 02:
Does it make that finding that that's where they were or that's because you can just imagine all kinds of reasons why your territory would draw lines that would be somewhat different from what you could have drawn for purposes of your

[00:20:41] Speaker 02:
management and protection and where you're putting out your resources.

[00:20:44] Speaker 06:
I think that's what the 1975 management plan does.

[00:20:48] Speaker 06:
And there's a map attached to the 1975 territory plan.

[00:20:59] Speaker 02:
So I'm just curious, because you also have regulations that say you can adjust these boundaries.

[00:21:03] Speaker 02:
And so I'd assume the reason you have that is because

[00:21:06] Speaker 02:
You're not reporting to capture everything, or you recognize you might learn something later, you might get better information later.

[00:21:13] Speaker 02:
These things aren't written in stone.

[00:21:15] Speaker 06:
I think the reasons for adjusting boundaries would be a determination that, in fact, there were horses – you know, we now have information that there were horses on this meadow all through the 50s and 60s, and therefore it should be included in the territory.

[00:21:31] Speaker 06:
But I don't think that the statute authorizes the agencies to establish territories on land that was not federal land in 1971, that was not territorial habitat of wild horses.

[00:21:45] Speaker 02:
So it's in 90% of the middle section.

[00:21:47] Speaker 02:
The private land only deals with 10%, so 90% of the middle section.

[00:21:52] Speaker 06:
The private land, as of 1975, when the territory was designated, and as of 1971, it was 25% of that middle section, but not 10%.

[00:22:02] Speaker 02:
OK, so 75%, OK.

[00:22:03] Speaker 06:
or right, 25% of it was privately owned, 75% of it was publicly owned.

[00:22:08] Speaker 06:
There is evidence in the record from the early 70s that horses were occasionally seen in that area, but the determination that the agency made in 1975 was that the territorial habitat consisted of these two units, one that was identified as one territory, two separate non-contiguous units totaling 236,000 acres.

[00:22:32] Speaker 06:
So then in – sometime in the 80s, someone draws a map that connects the two non-contiguous units, and that's when the confusion begins.

[00:22:44] Speaker 06:
1991, the Forest Plan includes these two

[00:22:49] Speaker 06:
two sentences that say we have a wild horse territory of 258,000 acres.

[00:22:57] Speaker 06:
But that's it.

[00:22:59] Speaker 06:
There's no explanation.

[00:23:00] Speaker 06:
There's no indication in the record of the 91 Forest Plan of an intent to make a big change in management.

[00:23:07] Speaker 06:
And in fact,

[00:23:09] Speaker 06:
The 1991 forest plan incorporates the wild horse management plan that was in effect at the time and says we're incorporating this without change.

[00:23:21] Speaker 06:
The plan that was in effect at that time was the 1982 management plan, which like the 1981 management plan, the 1980 management plan, and the 1975 management plan,

[00:23:33] Speaker 02:
Describe the territory of two non-contiguous units totaling 236,000 acres you've got that you've got the problem here That this was more than just us on a map that you spent Two decades at least Managing horses setting management levels for horses moving horses into

[00:23:59] Speaker 02:
this area, and so it's not just a map and a mistaken piece of paper.

[00:24:06] Speaker 06:
But we need to talk about that, because the extent to which this area was managed for wild horses, Mr. Zaff greatly exaggerates the extent.

[00:24:17] Speaker 06:
what the record shows in terms of management of that disputed area.

[00:24:22] Speaker 05:
Well, when you talk about that, could you do it please in terms of these monitoring reports that are in the record?

[00:24:28] Speaker 06:
Yes.

[00:24:28] Speaker 05:
Because they actually seem to suggest that they were actively matched.

[00:24:34] Speaker 05:
Well, there are monitoring reports.

[00:24:40] Speaker 05:
Let me take the 94 report.

[00:24:42] Speaker 05:
It says that Big Stage has an AML

[00:24:48] Speaker 05:
of 20, and bowls, which is part of triangles, 40.

[00:24:56] Speaker 05:
And then it's got this language on the next page which suggests that there's some active management going on.

[00:25:02] Speaker 05:
It says that we've seen horse sign in these areas.

[00:25:08] Speaker 05:
That area is outside, but these horses should be moved back over to the bulls allotment, which is part of the disputed area, right?

[00:25:18] Speaker 05:
Right.

[00:25:18] Speaker 05:
So this report looks like, A, you've got the Forest Service has goals for the number of horses on this property, and number two, that it's managing them.

[00:25:27] Speaker 05:
Right?

[00:25:28] Speaker 05:
Right.

[00:25:29] Speaker 02:
And it's putting horses there.

[00:25:31] Speaker 02:
Yeah, putting them.

[00:25:31] Speaker 02:
We're adding horses to it.

[00:25:32] Speaker 05:
Outside the territory.

[00:25:33] Speaker 05:
Right.

[00:25:34] Speaker 05:
So why isn't that a pretty?

[00:25:37] Speaker 05:
And the EA didn't consider this at all, did it?

[00:25:40] Speaker 06:
Well, let me respond to the monitoring question first.

[00:25:45] Speaker 06:
The monitoring reports from 1987 to 1993

[00:25:54] Speaker 06:
which are all in the record, so 87, 88, 90, 92, 93, all have this same table.

[00:26:02] Speaker 06:
I think that you're referring to Judge Tatel on JA 589.

[00:26:08] Speaker 06:
And in the earlier versions of the table, actually, I'm giving you the wrong page there.

[00:26:18] Speaker 06:
Yeah, so the 1994 is 857.

[00:26:23] Speaker 05:
The one I was talking about was 857.

[00:26:25] Speaker 05:
857.

[00:26:32] Speaker 06:
So if you look at page 861,

[00:26:42] Speaker 06:
The modern reports from 1987 through 1983 include that same table, but the first column does not include this heading Designated Management Herd Minimum Size.

[00:26:58] Speaker 06:
And I agree that the references to 20 horses on Big Sage and 40 horses on Bowles, they're incorrect, or they're inconsistent with the Forest Services view that the 1991 Forest Plan was not intended to change.

[00:27:17] Speaker 05:
I guess the petitioner's view about that is that that's exactly why the agency needed to wrestle with this in its environmental assessment.

[00:27:25] Speaker 05:
And it didn't.

[00:27:26] Speaker 02:
And if I could just, before you go on, you're stopping with 1993, and it's 94, 96, 97, 98, 2003, 2004, 2010.

[00:27:33] Speaker 06:
So all the other reports could then pick up and carry that language, aren't they?

[00:27:41] Speaker 02:
Yeah, they set management levels and they move horses there.

[00:27:44] Speaker 06:
Well, these are monitoring reports, not decision documents.

[00:27:48] Speaker 06:
They don't reflect a formal determination by the agency that we need to change this.

[00:27:54] Speaker 02:
They are evidence of what the agency was doing that's consistent with the map and consistent with what the 1991 Forest Management Plan incorporated.

[00:28:06] Speaker 02:
And it's not just a report.

[00:28:08] Speaker 02:
These are recommending, it may not be decisional in the sense of a

[00:28:12] Speaker 02:
something in the federal register, but they are saying horses should be moved from somewhere else to these places.

[00:28:18] Speaker 06:
The number of horses that are being proposed to be moved in both the 1994 and the 1996 mining reports is three to five horses.

[00:28:31] Speaker 05:
But you see, the issue here isn't, we're not assessing this here.

[00:28:37] Speaker 05:
The argument is that the agency didn't look at this.

[00:28:41] Speaker 05:
I mean, it could well have said, if it had looked at these documents, what it was doing, it's environmental assessment.

[00:28:47] Speaker 05:
Hey, it's only three horses, right?

[00:28:49] Speaker 05:
Then we would have known that the agency accounted for these reports.

[00:28:53] Speaker 05:
But the EA is silent about this.

[00:28:56] Speaker 05:
That's the point.

[00:28:58] Speaker 06:
The EA discusses the environmental effects of managing.

[00:29:05] Speaker 05:
But does it mention any of these inventories?

[00:29:13] Speaker 05:
I didn't think it did.

[00:29:15] Speaker 05:
Do you think it did?

[00:29:17] Speaker 05:
Did the EA look at these?

[00:29:19] Speaker 06:
I don't think the EA discusses these monitoring reports.

[00:29:23] Speaker 01:
Doesn't the EA say something like there's really no significant

[00:29:31] Speaker 01:
because these areas were never really managed or something to that effect, but I guess to the points that have been made, isn't that factually unsupported?

[00:29:46] Speaker 06:
I think the fact that supports it, and I wanted to get to in addressing this,

[00:29:53] Speaker 06:
These monitor reports assign minimum numbers that are apparently based on the total acreage.

[00:29:59] Speaker 06:
But at the same time, the appropriate management level for the entire Wild Horse territory remains unchanged from 1975 to 1981 until this

[00:30:13] Speaker 06:
new plan, it's 305 horses for the whole wild horse territory.

[00:30:20] Speaker 06:
And the amount of forage.

[00:30:21] Speaker 02:
Just to make sure I understand what you're saying, I thought it actually had shifted to a range rather than a specific amount.

[00:30:27] Speaker 06:
The target amount starts out at 305.

[00:30:30] Speaker 06:
In the 80s and then in the forest plan.

[00:30:35] Speaker 06:
When all this was happening.

[00:30:36] Speaker 06:
The target stays the same, it's 305, but now the limit is expressed as a range.

[00:30:43] Speaker 06:
plus or minus 10 percent.

[00:30:46] Speaker 06:
And then the latest plan, the amended plan, makes that range broader from about 200 to about 400.

[00:30:55] Speaker 06:
But the target is still 305, and the amount of farage that's allocated to wild horses remains constant through the whole period.

[00:31:03] Speaker 06:
It's 4,400 animal unit months of forage for horses.

[00:31:10] Speaker 06:
So when the EA says that the management hasn't changed, notwithstanding these monitoring reports, the amount of forage and the total animal appropriate management level has not changed during this period.

[00:31:26] Speaker 02:
I guess I'm having trouble understanding

[00:31:30] Speaker 02:
what that shows because it may well be that they actually needed this middle section to hit that target because of something that may have been going on in some of the other territories if there were circumstances of environmental concerns or grazing by other animals that made some portion of the other two original territories

[00:31:50] Speaker 02:
unable to help get to that target amount.

[00:31:53] Speaker 02:
I don't understand how simply saying the target was the same and having documentation that shows we're actively managing that as part of reaching that target shows that you weren't managing it.

[00:32:05] Speaker 06:
There has never been any difficulty in reaching the target.

[00:32:07] Speaker 06:
The difficulty has been that the target has been vastly exceeded.

[00:32:13] Speaker 06:
year after year after year, there are about three times as many horses on the area now as the goal, as the appropriate management level.

[00:32:24] Speaker 06:
So the problem has not been to have enough horses, it's been to remove enough horses.

[00:32:31] Speaker 02:
Well then, doesn't that make the fact that you're removing horses in here even more significant?

[00:32:40] Speaker 06:
I guess I'm...

[00:32:43] Speaker 06:
Most of the horses that are being removed, about 75% of the horses that are on the territory now, or on the forest now, are in the territory management area, the two discrete units of the territory management area.

[00:33:02] Speaker 06:
25% are outside of the wild horse territory, and most of those are in this disputed area.

[00:33:09] Speaker 02:
Can I ask you a technical question?

[00:33:10] Speaker 02:
Sure.

[00:33:11] Speaker 02:
Has the service already implemented the non-significant amendment, which you all call the non-significant amendment to the 1991 source plan, or has that not yet been implemented?

[00:33:21] Speaker 06:
It has been implemented.

[00:33:23] Speaker 06:
It was?

[00:33:24] Speaker 06:
Yes.

[00:33:28] Speaker 05:
Okay, thank you.

[00:33:31] Speaker 05:
Thank you.

[00:33:33] Speaker 05:
Council use of all time, right?

[00:33:35] Speaker 05:
Okay, you can have one minute.

[00:33:39] Speaker 04:
Just a couple of points.

[00:33:41] Speaker 04:
First of all, one thing I'd note, with the wild horse inventory forms, it's not just important that they brought horses into the middle section lands.

[00:33:51] Speaker 04:
They also did not do mass removals of the horses that were in the bulls and big sage allotments.

[00:33:58] Speaker 04:
So they were managing those horses the same way they were managing horses throughout the rest of the wild horse territory.

[00:34:04] Speaker 04:
The second point I'd just add is none of what the government has said is applicable to the Big Sage allotment, okay?

[00:34:13] Speaker 04:
That was always publicly held.

[00:34:16] Speaker 04:
And then the third point is just

[00:34:20] Speaker 04:
This note, I think, Judge Millett, that you mentioned, they changed the way they managed the horses in two ways.

[00:34:28] Speaker 04:
One, they added the middle section, but then they expanded the range.

[00:34:30] Speaker 04:
They made those changes in the mid-1980s.

[00:34:33] Speaker 04:
They incorporated both of those changes into the forest plan.

[00:34:36] Speaker 04:
When they changed again the range, they did a full-blown environmental review and analyzed alternatives.

[00:34:42] Speaker 04:
They did not do that kind of analysis when they decided to remove the middle section.

[00:34:47] Speaker 05:
And that's what is happening here.

[00:34:49] Speaker 05:
I just have a quick, almost non-record question.

[00:34:51] Speaker 05:
I'm just curious.

[00:34:53] Speaker 05:
The service says somewhere in here that there's not much public access here, right?

[00:34:58] Speaker 05:
Is that true?

[00:35:00] Speaker 05:
I don't mean is that true.

[00:35:01] Speaker 05:
But I take it this land is pretty inaccessible.

[00:35:03] Speaker 04:
Well, so I'm from Los Angeles, Your Honor.

[00:35:06] Speaker 04:
Modoc County is not a place where a lot of people visit.

[00:35:10] Speaker 04:
And I say that with all due respect to the people that live there.

[00:35:13] Speaker 04:
I personally have not been, but my clients have and do go.

[00:35:16] Speaker 05:
I mean, I assume that's one of the reasons why there are wild horses there, right, is that there aren't, there's not a lot of people wandering through this area.

[00:35:25] Speaker 04:
I think that's right, Your Honor, because a lot of wild horse populations were decimated before the wild horse happened.

[00:35:30] Speaker 04:
Well, thank you.

[00:35:31] Speaker 02:
Well, it also suggests, I think, that when horses are driven from one place to the other, it's being done by helicopter, which I guess suggests that it's not an easy walk or ride there.

[00:35:41] Speaker 05:
That's an interesting point.

[00:35:42] Speaker 05:
OK, well, thank you.

[00:35:43] Speaker 05:
Case is submitted.