71-1 foster affidavit

8/9/2019 71-1 Foster Affidavit

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IN

TEE UNTTED

STATSS

DISTRICT

COURT

FOR TIIE DISTRICT OF WYOMING

AMERICAN

WILD HORSE

PRESERVATION CAMPAIGN, er al,

)

Case

No. l:14-cv-8063

Petitioners-Appellants,

S.M.R.

JEWELL,

Secretary

of

the

United

States Depaxtment

of

the

Interior,

el

al,

Respondents-Appellees.

TIIIRD DECLARATION

OT

KIMBERLEE

D. FOSTER

1

.

I

am

Kimberlee D.

Foster,

Manager of

the

Rock

Springs

Field

Office

(RSFO),

High Desert

Distric

Wyoming State Office,

Bureau

of Land

Management

(BLM),

U.S.

Depaxtrnent

of

the Interior.

In this

position,

I am

responsible

for management of

approximately

3.6

million

acres ofpublic lands and

3.5 million

acres

of

federal

minerals

within

the

Rock

Springs

Management Area

(RSMA).

Among

the

public

lands

managed by the

RSFO

are

approximately two

million acres of

altemating

even-numbered sections

witlin

the

Wyoming

Checkerboard

ofthe Union

Pacific

Railroad

grant.

2.

As

Field Manager,

I

am responsible for

oversight

of

BLM's

management

of

wild

horses

within

lhe

RSMA

and

implementation

of

federal

law

applicable to

wild

horse management,

including

the

Wild

Free-Roarning Horses

and

Burros

Act

(WHA),

as

amended,

the

Federal

Land

Policy

and

Management

Act

(FLPMA),

and the

National

Environmental

Policy Act

(NEPA).

I

am

submitting

this declaration

as

part

ofmy

official duties

as

Field Manager of

the

RSFO. Within

the

RSMA are

Herd

Management

Areas

(HMAs),

which

are

those

areas

designated

by

BLM

for

long-term

wild

horse

management.

In my

capacity

as

Field Manager,

I

am

the

authorizing

officer

for wild

horse

gathers

for

the

HMAs

Case 2:14-cv-00152-NDF Document 71-1 Filed 01/20/15 Page 1 of 5


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within or

adjacent

to

the

Wyoming

Checkerboard,

including

those

HMAs

adjacent

to or

encompassing

private

lands owned

or

leased

by

the Rock Springs Grazing

Association.r

This declaration

pertains

only

to

those

HMAs identifred in

the 2013

Consent

Decree:

Adobe

Town,

Salt Wells Creek, Great Divide

Basin

and

White

Mountain

HMAs.

3. On

July

18, 2014, the BLM issued

a

Decision

Record

authorizing the

removal

ofall

wild

horses

from the Checkerboard lands within the Great Divide

Basin

HMA,

as well as Adobe Town

and Salt

Wells

Creek

HMAs. This decision

was

based

on the

Categorical

Exclusion

Review

WY-040-CX14-134,

as

provided

by

Section

4

of

the

WHA,

16

U.S.C.

$1334,

and the

2013

Consent

Deuee.

4.

The

removal ofwild

horses

from

the Checkerboard

within

these

HMAs

began

on September

15,

2014

and

was

completed

on

October

9,2014. A

total

of

1,263

wild

horses

were

removed from

fie

Checkerboard

land:

527

within

the Great

Divide

Basin

HMA,

689 within

the

Salt Wells Creek

HMA,

and 47

within the

Adobe

Town HMA.

Based

on the

census data

from April

2014, it

is

estimated

that approximately

649

wild

horses

remain

within

the

BlM-administered

portions

of

the HMAs

(outside

the

Checkerboard):

91

within

the Great

Divide

Basin,

39

within

Salt

Wells

Creek,

and 519

within

Adobe

Town. During

gather

operations,

the

BLM

implemented

several

measures

to easily

identif the

boundary

between

the solid

block

and Checkerboard

to

ensure

wild horses were only

removed

from the

Checkerboard.

For

example,

the BLM used

global

positioning

device

(GPS)

units,

personnel stationed

as

spotters,

topographic

features,

and

maps

to orient

the

helicopter

pilots

ofthe

Checkerboard

boundary.

No

wild horses

were

gathered outside

of

the Checkerboard

within

these

HMAs

or

from any other

HMA.

5. The BLM

had

originally

estimated

between

800 and 950 wild hones

were

present

in

the Checkerboard

within

the

three

HMAs,

based

on census data

from

April

2014 and

growth projections.

The

BLM

attributes

the increased

numbers

of wild

horses

present

in

the Checkerboard

at the

time of

gather

operations

primarily

to

the delay

in

the

gather

start date and

the

early

onset of cold

weather.

Due

to

the

topography

and

elevation,

the

Checkerboard

area is

known as

a

historic winter

range

area

for both livestock

and

wild

horses.

Much

ofthe

Checkerboard

areas

ofthese HMAs are at

lower

elevations

than the adjacent solid

blocks

ofpublic

land,

and

vegetation

and

water

resources

are

more

readily

I

Part

ofthe

Adobe Town HMA

lies

within the

Rawlins Management

Area,

which

is

overseen by

Demis

Carpnter, Rawlins

Field Office Manager. For

purposes

ofthis

litigatiorq the

mamgement

is the

same

in both districts.



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available during cold

and snowy

conditions than

can be

found in

the

more

mountainous

terrain

ofthe

solid

block.

This

year,

a

cool

wet

summer and

an

early

fall

led

many

ofthe

wild

horses

to

disperse

from the solid block

and

move down

into

the

Checkerboard

portions

of

the

HMAs.

Additionally, stxong storms

in

August

and

early

September

brought cold wet conditions to

the

entire

area,

bringing

even

more wild

horses

into

the Checkerboard wintering

range.

The

Checkerboard

gather

was

originally

planned

for mid-Augusl however,

the

stad

date

was delayed until

mid-September

due

to

the

legal

challenges at

issue

in

this

lawsuit.

6.

All

captured

wild

horses were

removed from

the range and entered

into

the

BLM's

national

Wild Horse

and

Burro Program

to

be

made

available

for

adoption.

There

are several

challenges

associated

with retuming wild

horses

to

the

range, including the

adaptability

ofthe horses

after being

in captivity, the

potential for introduction

ofdisease,

and

the increased

costs

to

the

BLM.

First,

the

wild

horses

removed from

the Checkerboard

during

the 2014

removal

have

now

been in captivity

for

several

months.

It is

unknown how

those

horses would

fare

if retumed

to the

HMAs

and

forced to

seek out

their

own

food

and

water after

being

maintained

as domesticated

aaimals

for

an

extended

period

of time.

Additionally,

the

captive

horses have been

disbwsed

into

BLM holding facilities

across

Wyoming,

Utah

and

Colorado

where

they

have been readied

for

adoption

through

vaccinations

and,

for

male horses,

gelding.

Because the

remaining

wild

horse

herds within these HMAs

do

not contain

any

geldings,

it

is

unlnown

how

retumed geldings

would

adjust

or

even be

received

to

the

new social

structures

that

have

formed

within the herds since the

removal.

7. Second,

wild horses

have

not been

immunized

against

common,

domestic

horse upper

respiratory

diseases such

as

inlluenz4 rhino

pneumonitis,

streptococcus

infections

(the

most

common

being

snangles), and

pneumonia.

These diseases

are

highly contagious

for

horses and

pose

a

threat if introduced

into

the

wild herd. Any

horses

to

be released back

into

the Checkerboard

would need

to

be

quaxantined

in a

relatively

sterile

facility

prior

to

being retumed

to the

wild.

Due

to

disease

incubation

periods

and the

difficulty

in maintaining

sbrile

conditions in

a

domestic

livestock

setting, the quarantine procedure

would not

guarantee

that

diseases

would

not

be

introduced

into

the

wild herd.

8.

The

BLM

has already

incurred

costs associated

with the

2014

Checkerboard

Removal

in

excess

of$535,000.

Ifhorses

removed

fiom

the

HMA

are

retumed,

BLM

will

not

be able

to

recover the

significant

economic

costs of

preparing

for

and

conducting

the

removal,

and

post-removal

costs

including



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transportation,

preparation,

holding,

and

adoption of

gathered

horses.

Additionally,

ifthe captive

horses were

required to retum

to

the

wild,

the

BLM

would

not

only

incur

the costs

oftransport,

but

would

also

incur

quarantine

costs

to

prevent

the

spread

ofdisease to

the

remaining

wild

horse

herds within

these three

HMAs.

9. The

2013 Consent Decree

requires the

BLM

to conduct

a census and

evaluate

whether

a

gather

in rhe

White Mountain

HMA

in calendar

year

20

I 5

is

necessary. Unlike other HMAs,

under

the 2013 Consent Decree RSGA allows

between

205-300

wild horses

to remain

on their lands within the White

Mountain

HMA

for

the

duration

ofthe

agreement.

Ifthe

2015 census indicates the

population

of

wild

horses exceeds

300,

rhe BLM

will

gather

and

remove down

to

205

wild

horses and use fertility

connol

to

reduce annual

population

groxth.

10.

No

decision

will

be

made

with

regard

to gathering

the

White

Mountain

HMA

until

an

updated

census is

completed. At

present,

the

BLM has

tentatively

scheduled

this

census

to

begin

the

week

ofFebruary

16,

2015,

weather

conditions

permitting.

The

White Mountain

HMA was

previously

gathered

in

201 1

and

two

fertility

control

methods

were

implemented: a

two-year treatment

of

Porrine

Zona

Pellucida

(PZP)

and the adjustrnent ofthe sex

ratio

ofthe

remaining

herd

(favoring

stallions 60:40). In

May

of20l2,

the

BLM

conducted a census and

the

population

estimate

was

approximately

135

wild

horses

within

this

HMA.

Two

years later, the April 2014 census

indicated

that

the

population

was

152 wild

horses,

well

below

the

205-300

range.

In

the

absence

ofcensus

data,

the 2013

Consent

Decree

allows

for

a

20elo

grolrth

rate

calculation to

be used

for estimating

annual

population.

Based on the

existing

census

of

152

wild

horses,

a

20%

growth

rate

would result in

an

increase

ofabout 30 for a

total

population

estimate

of

182

wild

horses

within

the

HMA.

This

projected population

is

below

the 300 wild

horses

threshold

requiring

a

White

Mountain

HMA

gather.

Based on

my

experience

and

looking

at the

previous

census results, it is

my

professional

opinion

that the

population

in

the

White

Mountain

HMA

is

currently

growing

at

less

than

a

20%

growth

rate due

to

past

fertility

control

methods and,

therefore;

the

population

will

be

well below

the

criteria requiring

a

gather

for 2015.

It is

unlikely

BLM will

gather

in

the

white

Mountain

HMA

in

2015.

11. At

this time,

no

additional

gathers

are

planned

for

the Great

Divide

Basin,

Salt

Wells

Creek

or Adobe Town

HMAs.

After initial removal of all wild

horses

from

the Checkerboard

within

these

HMAs, the 2013

Consent

Decree

allows

for wild

horses

to remain

on

RSGA

lands, up

to certain

limits, which would

not

occur

absent the Consent Decree. The Decree

provides

that

a

removal of wild



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horses

shall occur in

2016

ifthe

population

within

the Checkerboard

portion

ofthe

Great

Divide

Basin

HMA is

likely to

exceed

100

wild

horses

or

if

the

Checkerboard

portion

of

the

Adobe Town

ard Salt Wells Creek HMA

(combined)

is

likely

to

exceed

200

wild horses.

An updated

census

will

be necessary

to

determine

ifthe

population

limits

have been exceeded

within

the

Checkerboard

for

these three

HMAs

prior

to

any decisions

about

future

gathers.

Pursuant

to

28

U.S.C.

$

i746, I

declare under

penalty

of

perjury

under the laws

of

the

United

States

of America

that the

foregoing

is

true

and correct

to

the best

ofmy

knowledge,

information, and

belief.

Executed in

Rock Springs,

Wyoming,

this 20th

day

of

January,

20

1

5

.

lee

D. Foster


71-1 foster affidavit

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