Meyer Glitzenstein & Eubanks LLP

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Washington, DC 20009
Telephone (202) 588-5206
Fax (202) 588-5049
meyerglitz@meyerglitz.com

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245 Cajetan Street
Fort Collins, CO 80524
Telephone (970) 703-6060
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beubanks@meyerglitz.com

August 4, 2015
Sent By Electronic Mail
Cal Joyner, Regional Forester
U.S. Forest Service, Region 3
333 Broadway, Southeast
Albuquerque, NM 87102
Facsimile: 505-842-3800
Email: cjoyner@fs.fed.us
Neil Bosworth, Tonto National Forest Supervisor
2324 E. McDowell Road
Phoenix, AZ 85006
Facsimile: 602-225-5201
Email: nbosthworth@fs.fed.us
Re:

Forest Services Obligation To Comply With The National Environmental Policy

Act In Connection With the Removal Of Horses From Forest Service Lands

Dear Mr. Joyner and Mr. Bosworth:

I write this letter on behalf of two leading conservation organizationsthe American
Wild Horse Preservation Campaign (AWHPC) and the Animal Legal Defense Fund (ALDF)to
urge the U.S. Forest Service to fully comply with its obligations under the National
Environmental Policy Act (NEPA), 42 U.S.C. 4321-4370h, in connection with the July 31,
2015 public notice of intent to impound all unauthorized horses in the Tonto National Forest.
As the Forest Services public notice explains, all unauthorized livestock found upon National
Forest System lands or other lands under Forest Service control within the area identified below,
will be impounded by the United States Forest Service on or after 8/07/15, unless said livestock
is permanently removed from the above described lands.
By the Forest Services own admission, [r]ange records indicate that there has been a
population of trespass horses along the Lower Salt River (river), southwest of the allotment,

since the 1930s. U.S. Forest Service, Final Environmental Assessment for the Sunflower
Allotment Grazing Analysis (July 2015) at 61 (emphases added).
Before the Forest Serviceor any parties asserting ownership of free-roaming,
unbranded, previously unclaimed horsesconduct a wild horse roundup, gather, or capture
operation through the use of helicopters, motorized vehicles, and/or bait or water traps, the
Service has, at minimum, a clear obligation under NEPA and its implementing regulations to
conduct an analysis of the impacts of such an action on the affected environment.
The Services attempt to permanently remove horses from a population that has existed on
Forest Service land for at least 80 years in a free-roaming, unbranded, unclaimed condition by
merely labeling these horses as unauthorized livestock does not exempt the Forest Service
from its responsibilities under NEPA to analyze the environmental impacts of this major action
that will be conducted on Forest Service lands. In particular, NEPAwhich serves as the
nations basic national charter for the protection of the environment, 40 C.F.R. 1500.1
requires that, for all major Federal actions significantly affecting the quality of the human
environment, federal agencies shall prepare a detailed statement, called an Environmental
Impact Statement (EIS). 42 U.S.C. 4332(C). The EIS must consider (1) the environmental
impact of the proposed action; (2) any adverse environmental effects which cannot be
avoided; (3) alternatives to the proposed action; (4) the relationship between local short-term
use of mans environment and the maintenance of long-term productivity; and (5) any
irreversible and irretrievable commitment of resources involved in the proposal. Id.
4332(c)(i)-(v).
The Council on Environmental Quality (CEQ)an agency within the Executive Office
of the Presidenthas promulgated regulations implementing NEPAs requirements that are
binding on all Federal agencies. 40 C.F.R. 1500.3. Those regulations provide that, where the
agency has not determined whether an EIS is required, it must generally prepare an
Environmental Assessment (EA) to determine whether the environmental effects of its
proposed action are significant, thereby requiring preparation of an EIS. Id. 1501.4(b). The
EA must analyze both direct impacts of the proposed action, i.e., those that result immediately
from the proposed management action, as well as the indirect impacts, which are those caused
by the action later in time but still reasonably foreseeable. Id. 1508.8(a)-(b). The CEQ
regulations further provide that NEPA procedures must ensure that environmental information
is available to public officials and citizens before decisions are made and before actions are
taken. 40 C.F.R. 1500.1(b). Indeed, recognizing that public scrutiny [is] essential to
implementing NEPA, id., the regulations provide that Federal agencies shall to the fullest
extent possible . . . encourage and facilitate public involvement in decisions which affect the
quality of the human environment. Id. 1500.2(d).
It is indisputable that a gather of this magnitude on federal land involving dozens of freeroaming horses using helicopters, motorized vehicles, and/or bait or water traps will result in
myriad environmental impacts to this horse population, individual horses, and natural resources
located in the geographic area encompassed by the gather such as vegetation, hydrological
resources, and wildlife. In addition, such an action will have long-term aesthetic, recreational,
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and scientific consequences for the many visitors to this region who come primarilyif not
exclusivelyto observe, view, and study this free-roaming horse population, and, in turn, will
have economic implications as tourism dollars decrease after any roundup takes place. Hence, as
the Forest Serviceand its sister agency Bureau of Land Managementhave long recognized in
conducting gathers of horses on federal land, such decisions invariably require NEPA analysis
before they may commence in order to analyze precisely the kinds of impacts at issue here and
alternatives to the proposed action. See, e.g., U.S. Forest Service, Environmental Assessment for
Pryor Mountain Wild Horse Gather (July 17, 12015), available at
http://www.blm.gov/mt/st/en/info/newsroom/2015/june/blm_releases_2015.html.
Although the primary focus of this letter is on the NEPA requirement that attaches to the
Forest Services decision, we note that there are also likely violations of the Wild Free-Roaming
Horses and Burros Act, 16 U.S.C. 1331-1340, if the Forest Service decides to proceed with its
proposed action. In light of the fact that the Forest Service admits that trespass horses have
been continually present on these Forest Service lands since at least the 1930s (which is well
before the 1971 Act created wild horse territories in all areas where free-roaming horses were
found at that time, see 16 U.S.C. 1331), and in the absence of any documentation, evidence, or
other substantiation in the Forest Services public notice that these particular horses are, in fact,
owned by any specific individual or entity, the strong presumption is that these horses are wild
horses subject to the protections of the Act and thus are not appropriate for impoundment as
unauthorized livestock. See 16 U.S.C. 1332(b) (defining wild free-roaming horses and
burros as all unbranded and unclaimed horses and burros on public lands of the United
States).
Accordingly, my clients request that the Forest Service seriously consider these
comments in an effort that will hopefully assist the parties in avoiding litigation or other
challenges to the Forest Services decision. As highly interested parties in this decisionmaking
process, and given that the removal of horses may begin as early as August 7, my clients
respectfully request a response within 24 hours of receipt of this letter which you may send to
my email address (beubanks@meyerglitz.com). If you would like to set up a conference call to
discuss this matter, I can make myself available at your convenience.

Sincerely,

William S. Eubanks II
(970) 703-6060

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