So says a misinformed reporter;
http://www.trib.com/news/opinion/editorial/article_af70c792-a686-5dfd-b411-1f7ad6dcb0f2.html
Wednesday, December 9, 2009
Opposition to wild horse proposal is misguided
http://www.trib.com/news/opinion/editorial/article_af70c792-a686-5dfd-b411-1f7ad6dcb0f2.html
FERC, WH&Bs, & The Big Ruby (Pipeline)
I am having another idea on how to fight this (Calico) gather other than through the courts. I understand that these removals are part of the plans for (is it?) the Ruby Pipeline? If so, that project has to be licenced by the Federal Energy Regulatory Commission (FERC) I am familar with this branch of gov't because we live directly across the street from a hydroelectric facility (FERC Project 2616) which also operates under licence from FERC, and you know I am always hollering about the conditions and need for improvements down here at "The Project." When I do holler I holler first at whatever power company happens to he holding the lease at the time, and if they ignore me or give me no concern usually all I have to do to spur them into action is threaten to call "their bosses" at FERC though I never ask them to do anything they are not required to do by the terms of the (52 pg.) lease; see it here on the "Hoosic River Project" page; http://www.freewebs.com/earthma
Over the 9 yrs I been livin here, I have had to actually call the FERC-Folk a couple a times, so I do have some contacts with them, though in a different dept I am sure. Anywho, what I am thinking is to find out who is in charge of the Ruby Project at FERC and direct our concern (and request) to them asking them please not to grant a licence to the project if it is dependant upon the declimation of our wild horse herds. We could remind them that those lands are BY STATUTORY LAW "specially designated" principally for wild horse and burro use. . shall we go on to tell them of all the law suits that are flying and will be flying if the plan goes through without some protections to insure that our wild horse and burro herds are maintained in viable numbers to insure that they will remain free and wild and forever roaming about upon their historic and STATUTORILY designated rangelands?
I was thinking there are several ways to do this, we could make up one letter but signed by all, or we could do a petition and pass it around and when we get enough signatures we could send a hard copy, or we could bombard them individually. Ideas?
CJ
----- Original Message -----
BLMs BIG-FAT Lie
BLMs BIG-FAT Lie:
TITLE 31 > SUBTITLE III > CHAPTER 37 > SUBCHAPTER III > § 3729
§ 3729. False claims
(a) Liability for Certain Acts.— Any person who—
(1) knowingly presents, or causes to be presented, to an officer or employee of
the United States Government or a member of the Armed Forces of the United
States a false or fraudulent claim for payment or approval;
(2) knowingly makes, uses, or causes to be made or used, a false record or
statement to get a false or fraudulent claim paid or approved by the Government;
(3) conspires to defraud the Government by getting a false or fraudulent claim
allowed or paid;
(4) has possession, custody, or control of property or money used, or to be
used, by the Government and, intending to defraud the Government or willfully to
conceal the property, delivers, or causes to be delivered, less property than
the amount for which the person receives a certificate or receipt;
(5) authorized to make or deliver a document certifying receipt of property
used, or to be used, by the Government and, intending to defraud the Government,
makes or delivers the receipt without completely knowing that the information on
the receipt is true;
(6) knowingly buys, or receives as a pledge of an obligation or debt, public
property from an officer or employee of the Government, or a member of the Armed
Forces, who lawfully may not sell or pledge the property; or
(7) knowingly makes, uses, or causes to be made or used, a false record or
statement to conceal, avoid, or decrease an obligation to pay or transmit money
or property to the Government,
is liable to the United States Government for a civil penalty of not less than
$5,000 and not more than $10,000, plus 3 times the amount of damages which the
Government sustains because of the act of that person, except that if the court
finds that—
(A) the person committing the violation of this subsection furnished officials
of the United States responsible for investigating false claims violations with
all information known to such person about the violation within 30 days after
the date on which the defendant first obtained the information;
(B) such person fully cooperated with any Government investigation of such
violation; and
(C) at the time such person furnished the United States with the information
about the violation, no criminal prosecution, civil action, or administrative
action had commenced under this title with respect to such violation, and the
person did not have actual knowledge of the existence of an investigation into
such violation;
the court may assess not less than 2 times the amount of damages which the
Government sustains because of the act of the person. A person violating this
subsection shall also be liable to the United States Government for the costs of
a civil action brought to recover any such penalty or damages.
(b) Knowing and Knowingly Defined.— For purposes of this section, the terms
"knowing" and "knowingly" mean that a person, with respect to information—
(1) has actual knowledge of the information;
(2) acts in deliberate ignorance of the truth or falsity of the information; or
(3) acts in reckless disregard of the truth or falsity of the information,
and no proof of specific intent to defraud is required.
(c) Claim Defined.— For purposes of this section, "claim" includes any request
or demand, whether under a contract or otherwise, for money or property which is
made to a contractor, grantee, or other recipient if the United States
Government provides any portion of the money or property which is requested or
demanded, or if the Government will reimburse such contractor, grantee, or other
recipient for any portion of the money or property which is requested or
demanded.
(d) Exemption From Disclosure.— Any information furnished pursuant to
subparagraphs (A) through (C) of subsection (a) shall be exempt from disclosure
under section 552 of title 5.
(e) Exclusion.— This section does not apply to claims, records, or statements
made under the Internal Revenue Code of 1986.
http://www.law.cornell.edu/uscode/html/uscode31/usc_sec_31_00003729----000-.html
§ 3729. False claims
(a) Liability for Certain Acts.— Any person who—
(1) knowingly presents, or causes to be presented, to an officer or employee of
the United States Government or a member of the Armed Forces of the United
States a false or fraudulent claim for payment or approval;
(2) knowingly makes, uses, or causes to be made or used, a false record or
statement to get a false or fraudulent claim paid or approved by the Government;
(3) conspires to defraud the Government by getting a false or fraudulent claim
allowed or paid;
(4) has possession, custody, or control of property or money used, or to be
used, by the Government and, intending to defraud the Government or willfully to
conceal the property, delivers, or causes to be delivered, less property than
the amount for which the person receives a certificate or receipt;
(5) authorized to make or deliver a document certifying receipt of property
used, or to be used, by the Government and, intending to defraud the Government,
makes or delivers the receipt without completely knowing that the information on
the receipt is true;
(6) knowingly buys, or receives as a pledge of an obligation or debt, public
property from an officer or employee of the Government, or a member of the Armed
Forces, who lawfully may not sell or pledge the property; or
(7) knowingly makes, uses, or causes to be made or used, a false record or
statement to conceal, avoid, or decrease an obligation to pay or transmit money
or property to the Government,
is liable to the United States Government for a civil penalty of not less than
$5,000 and not more than $10,000, plus 3 times the amount of damages which the
Government sustains because of the act of that person, except that if the court
finds that—
(A) the person committing the violation of this subsection furnished officials
of the United States responsible for investigating false claims violations with
all information known to such person about the violation within 30 days after
the date on which the defendant first obtained the information;
(B) such person fully cooperated with any Government investigation of such
violation; and
(C) at the time such person furnished the United States with the information
about the violation, no criminal prosecution, civil action, or administrative
action had commenced under this title with respect to such violation, and the
person did not have actual knowledge of the existence of an investigation into
such violation;
the court may assess not less than 2 times the amount of damages which the
Government sustains because of the act of the person. A person violating this
subsection shall also be liable to the United States Government for the costs of
a civil action brought to recover any such penalty or damages.
(b) Knowing and Knowingly Defined.— For purposes of this section, the terms
"knowing" and "knowingly" mean that a person, with respect to information—
(1) has actual knowledge of the information;
(2) acts in deliberate ignorance of the truth or falsity of the information; or
(3) acts in reckless disregard of the truth or falsity of the information,
and no proof of specific intent to defraud is required.
(c) Claim Defined.— For purposes of this section, "claim" includes any request
or demand, whether under a contract or otherwise, for money or property which is
made to a contractor, grantee, or other recipient if the United States
Government provides any portion of the money or property which is requested or
demanded, or if the Government will reimburse such contractor, grantee, or other
recipient for any portion of the money or property which is requested or
demanded.
(d) Exemption From Disclosure.— Any information furnished pursuant to
subparagraphs (A) through (C) of subsection (a) shall be exempt from disclosure
under section 552 of title 5.
(e) Exclusion.— This section does not apply to claims, records, or statements
made under the Internal Revenue Code of 1986.
http://www.law.cornell.edu/uscode/html/uscode31/usc_sec_31_00003729----000-.html
http://groups.yahoo.com/group/BigMouthBroadCasting/message/83
Fw: BLM Investigating Possible Shooting Deaths of Wild Horses in Northern Washoe County, Nevada (12-07-2009)
BLM Investigating Possible Shooting Deaths of Wild Horses in Northern Washoe County, Nevada (12-07-2009)
Monday, December 7, 2009
Court Lamblasts BLMs "New Improved" Grazing Regs
Wonder how this one fared in FINAL disposition.
Sunday, July 08, 2007
A June ruling by the Federal District Court of Idaho stopped implementation of new (2006) grazing regulations by the U.S. Bureau of Land Management (BLM), reports the Wildlife Management Institute.
The BLM, which manages grazing on nearly 160 million acres of public rangeland, with use authorized by approximately 18,000 permits and leases on about 20,600 allotments, claimed that the new regulations would improve grazing management and promote stability of ranching on public lands. To the contrary, U.S. District Judge B. Lynn Winmill harshly criticized the agency's process and determined the BLM's new regulations to be in violation of the Endangered Species Act (ESA), National Environmental Policy Act (NEPA) and Federal Land Policy Management Act (FLPMA).
The new regulations amended 1995 regulations that the livestock industry claimed were too restrictive. The major objectives of the new regulations ostensibly were to improve the agency's working relationships with public land ranchers, conserve rangeland resources and address legal issues while enhancing administrative efficiency. The final regulatory changes were to take effect on August 11, 2006. However, the court immediately enjoined them until thorough judicial review could occur.
In his analysis, Judge Winmill wrote, "[The 2006 regulations] limit public input from the non-ranching public, offer ranchers more rights on BLM land, restrict the BLM's monitoring of grazing damage, extend the deadlines for corrective action, and dilute the BLM's authority to sanction ranchers for grazing violations."
The court specifically cited comments on the new regulations by the U.S. Fish and Wildlife Service (FWS), the agency with which the BLM is required to consult, by virtue of the Endangered Species Act, if land-management changes could have negative impacts on threatened or endangered species. The BLM concluded that its new regulations largely are clarifications of the 1995 regulations or bring those previous regulations into compliance with court rulings. The FWS disagreed, stating that the new regulations would "fundamentally change the way BLM lands are managed temporally, spatially, and philosophically. These changes could have profound impacts on wildlife resources."
In addition, the new regulations ignored an analysis of the BLM's own team of scientists, which concluded that the changes would have a "slow long-term adverse effect on wildlife and biological diversity in general." The court observed that "the BLM moved with extraordinary speed to reject the substantial [interdisciplinary team] criticisms" by publishing the proposed regulations just three weeks after the team's administrative review was received.
Within the new regulations, provisions designed to improve working relationships would have allowed shared title to any range improvements-such as fences, wells, pipelines, etc.-that were constructed under cooperative range improvements agreements. For example, fence lines across public lands would have become essentially private property, calling into question the impacts to access to public lands across the fences. In addition, the regulations would have removed an existing requirement that livestock water rights on BLM land are to be acquired in the name of the United States and not in the permittee's name.
The provisions also focused on using only monitoring data, as opposed to all available data, in determining when a grazing allotment is failing to meet rangeland health standards and extending the deadline for corrective action. The final rule would have given the BLM two years to adopt a new grazing decision after a violation and an additional year to implement the decision. Under the 1995 regulations, BLM is required to take corrective action as soon as practicable but no later than the next grazing year. In addition, if a grazing reduction of more than 10 percent were needed to correct the violation, the new regulations would have allowed the reduction to be phased-in over five years unless the permittee agreed to make the changes in a shorter time period.
In an effort to streamline the public-participation process, the new grazing regulations would have modified the definition of "interested publics" and narrowed the BLM's obligation to consult, cooperate and coordinate with the interested publics. Previously, an individual or group that submitted a written request to be involved in the decision-making process on a specific allotment would be added to the list of "interested publics" and notified of issues concerning the allotment. Under the new regulations, the individual or group would have been dropped from the list if notice was received but no comment provided. In addition, the BLM would no longer have had to consult, cooperate and coordinate with interested publics on adjustments to allotment boundaries, changes in active use, emergency allotment closures, issuance or renewal of individual permits or leases, and issuance of temporary nonrenewable grazing permits and leases. The court ruled that these changes violated NEPA, because the BLM was deemed not to have considered or justified adequately why public participation should be more limited than in the 1995 regulations.
The injunction against the new regulations will be in place until the BLM proceeds with consultation under the ESA and takes the "requisite hard look" at the environmental impacts under NEPA. (jas)
http://www.wildlifemanagementinstitute.org/index.php?option=com_content&view=article&id=86%3Acourt-halts-and-lambastes-blms-new-qand-improvedq-grazing-regulations&Itemid=95
Sunday, July 08, 2007
A June ruling by the Federal District Court of Idaho stopped implementation of new (2006) grazing regulations by the U.S. Bureau of Land Management (BLM), reports the Wildlife Management Institute.
The BLM, which manages grazing on nearly 160 million acres of public rangeland, with use authorized by approximately 18,000 permits and leases on about 20,600 allotments, claimed that the new regulations would improve grazing management and promote stability of ranching on public lands. To the contrary, U.S. District Judge B. Lynn Winmill harshly criticized the agency's process and determined the BLM's new regulations to be in violation of the Endangered Species Act (ESA), National Environmental Policy Act (NEPA) and Federal Land Policy Management Act (FLPMA).
The new regulations amended 1995 regulations that the livestock industry claimed were too restrictive. The major objectives of the new regulations ostensibly were to improve the agency's working relationships with public land ranchers, conserve rangeland resources and address legal issues while enhancing administrative efficiency. The final regulatory changes were to take effect on August 11, 2006. However, the court immediately enjoined them until thorough judicial review could occur.
In his analysis, Judge Winmill wrote, "[The 2006 regulations] limit public input from the non-ranching public, offer ranchers more rights on BLM land, restrict the BLM's monitoring of grazing damage, extend the deadlines for corrective action, and dilute the BLM's authority to sanction ranchers for grazing violations."
The court specifically cited comments on the new regulations by the U.S. Fish and Wildlife Service (FWS), the agency with which the BLM is required to consult, by virtue of the Endangered Species Act, if land-management changes could have negative impacts on threatened or endangered species. The BLM concluded that its new regulations largely are clarifications of the 1995 regulations or bring those previous regulations into compliance with court rulings. The FWS disagreed, stating that the new regulations would "fundamentally change the way BLM lands are managed temporally, spatially, and philosophically. These changes could have profound impacts on wildlife resources."
In addition, the new regulations ignored an analysis of the BLM's own team of scientists, which concluded that the changes would have a "slow long-term adverse effect on wildlife and biological diversity in general." The court observed that "the BLM moved with extraordinary speed to reject the substantial [interdisciplinary team] criticisms" by publishing the proposed regulations just three weeks after the team's administrative review was received.
Within the new regulations, provisions designed to improve working relationships would have allowed shared title to any range improvements-such as fences, wells, pipelines, etc.-that were constructed under cooperative range improvements agreements. For example, fence lines across public lands would have become essentially private property, calling into question the impacts to access to public lands across the fences. In addition, the regulations would have removed an existing requirement that livestock water rights on BLM land are to be acquired in the name of the United States and not in the permittee's name.
The provisions also focused on using only monitoring data, as opposed to all available data, in determining when a grazing allotment is failing to meet rangeland health standards and extending the deadline for corrective action. The final rule would have given the BLM two years to adopt a new grazing decision after a violation and an additional year to implement the decision. Under the 1995 regulations, BLM is required to take corrective action as soon as practicable but no later than the next grazing year. In addition, if a grazing reduction of more than 10 percent were needed to correct the violation, the new regulations would have allowed the reduction to be phased-in over five years unless the permittee agreed to make the changes in a shorter time period.
In an effort to streamline the public-participation process, the new grazing regulations would have modified the definition of "interested publics" and narrowed the BLM's obligation to consult, cooperate and coordinate with the interested publics. Previously, an individual or group that submitted a written request to be involved in the decision-making process on a specific allotment would be added to the list of "interested publics" and notified of issues concerning the allotment. Under the new regulations, the individual or group would have been dropped from the list if notice was received but no comment provided. In addition, the BLM would no longer have had to consult, cooperate and coordinate with interested publics on adjustments to allotment boundaries, changes in active use, emergency allotment closures, issuance or renewal of individual permits or leases, and issuance of temporary nonrenewable grazing permits and leases. The court ruled that these changes violated NEPA, because the BLM was deemed not to have considered or justified adequately why public participation should be more limited than in the 1995 regulations.
The injunction against the new regulations will be in place until the BLM proceeds with consultation under the ESA and takes the "requisite hard look" at the environmental impacts under NEPA. (jas)
http://www.wildlifemanagementinstitute.org/index.php?option=com_content&view=article&id=86%3Acourt-halts-and-lambastes-blms-new-qand-improvedq-grazing-regulations&Itemid=95
The Omnibus Public Lands Management Act of 2009
Nothing in this or any other Act or Law can overide the main provisions of the WFH&B Act of 1971....
Click on title above for full text of OPLMA;
Click on title above for full text of OPLMA;
Sunday, December 6, 2009
Gov't Investigation Alleges Wrongdoing by BLM
Government Investigation Alleges Wrongdoing By Bureau Of Land Management Employees
Oct 08, 2009, ©Copyright 2009, Roadracing World Publishing, Inc.
PICKERINGTON, Ohio -- Investigators with the U.S. Interior Department's Office of Inspector General (OIG) say in a report that they found alleged wrongdoing in the relationships between certain National Landscape Conservation System (NLCS) employees of the Bureau of Land Management (BLM) and anti-access groups, the American Motorcyclist Association (AMA) reports.The U.S. Interior Department's OIG referred its findings to the U.S. Attorney's Office for prosecution but was told, according to the OIG report of its investigation, that the law, Lobbying with Appropriated Monies, "has no criminal sanctions associated with it, and thus, declined to prosecute in lieu of administrative action."The OIG then submitted its findings to BLM Director Robert Abbey for appropriate administrative action.The investigation of the employees of the NLCS, which is responsible for conserving nationally significant landscapes, was initiated after BLM officials reviewed documents requested by Rep. Rob Bishop (R-Utah) and former Rep. Bill Sali (R-Idaho) in July and September of 2008, respectively. When the BLM found documents it believed showed inappropriate relationships with advocacy groups and possible violations of anti-lobbying laws and policies by the NLCS, it referred the matter to the OIG for investigation."Our investigation determined that numerous activities and communication took place between NLCS officials and nongovernmental organizations (NGO), including discussions about the NLCS budget and BLM editing brochures and producing fact sheets for a specific NGO," Mary Kendall, acting inspector general, said in a memorandum to Abbey received Oct. 2. "Our investigative efforts revealed that communication between NLCS and certain NGOs in these circumstances gave the appearance of federal employees being less than objective and created the potential for conflicts of interest or violations of law."We also uncovered a general disregard for establishing and maintaining boundaries among the various entities," Kendall wrote.Specifically, the OIG alleged that a NLCS staff member asked a representative of the National Wildlife Federation (NWF) to influence legislation before Congress involving the protection of some areas in New Mexico. Federal law bars federal employees from trying to shape legislation.(Bloggers Note: Such as Sen Harry Reid tried to do and IN FACT did do, when he asked Sen Burns to "slip the rider in" for him, that would take away wild horse protections...too late to prosecute?hmmmmm)
The investigation also found, among other things, that NLCS staff helped the NWF edit a brochure that may have been used for lobbying, and NLCS staff may have disclosed BLM budget information to Wilderness Society officials before the information was presented to Congress.In response to the investigation report, Rep. Rob Bishop (R-Utah) issued a release calling the use of government worker time, effort and money to lobby "simply wrong.""The ongoing, explicit, far-reaching coordination between special interest lobbying groups and NLCS staff revealed in this report is troubling," he said. "Reading case after case of lobbyists outsourcing their work to federal employees is unsettling. This inappropriate meddling of private and public lobbying efforts is precisely the sort of thing I warned against before the NLCS legislation was rushed through Congress."The American people deserve to know that government employees, paid for by their hard-earned dollars, are not engaged in lobbying, not playing favorites and not being co-opted by interest groups," he said. "In most cases I believe this is true. However, in this specific instance, certain government officials clearly fell short."The NLCS legislation that made it a permanent agency within the BLM was S. 22, the Omnibus Public Land Management Act of 2009. It was fast-tracked through Congress and then signed into law by President Obama on March 30, 2009. The AMA opposed this bill because it would close over 2 million acres of public land to responsible OHV users, and because the legislative process didn't allow for full public comment and debate.To read the full investigative report, go here;
To read the congressional letters that initiated the OIG investigation, click:*
http://www.americanmotorcyclist.com/legisltn/documents/senate_letter.pdf* http://www.americanmotorcyclist.com/legisltn/documents/president_nlcs.pdf* http://www.americanmotorcyclist.com/legisltn/documents/nlcs_document_request.pdf
About the American Motorcyclist Association: Since 1924, the AMA has protected the future of motorcycling and promoted the motorcycle lifestyle. AMA members come from all walks of life, and they navigate many different routes on their journey to the same destination: freedom on two wheels. As the world's largest motorcycling organization, the AMA advocates for motorcyclists' interests in the halls of local, state and federal government, the committees of international governing organizations, and the court of public opinion. Through member clubs, promoters and partners, the AMA sanctions more motorsports competition and motorcycle recreational events than any other organization in the world. AMA members receive money-saving discounts from dozens of well-known suppliers of motorcycle services, gear and apparel, bike rental, transport, hotel stays and more. Through its Motorcycle Hall of Fame Museum, the AMA preserves the heritage of motorcycling for future generations.
Click on title above for original article;
BLM Illegally Sells Burros to Military
By Tony Perry
July 7, 2009
Reporting from Bridgeport, Calif. - With 75 pounds of military gear cinched on her furry back, Annie was stubborn the whole way.
The two Marines assigned to her pushed, pulled and sweet-talked her up the steep, twisting trail on the eastern side of the Sierra Nevada.
"C'mon, girl, you can make it," Lance Cpl. Chad Campbell whispered in her ear.
"Only one more hill," promised Lance Cpl. Cameron Cross as he shoved Annie's muscular hindquarters.
The red-hued donkey snorted, nibbled on grass and let loose that distinctive braying, which begins with a loud nasal inhalation and concludes with an even louder blast of deep-throated protest.
She also dropped green, foul-smelling clumps, which the Marines carefully sidestepped.
On the rocky, uneven path, Annie never stumbled. A good donkey, Marines say, knows three steps ahead where it wants to walk.
For Campbell and Cross, the day with Annie could be a preview of days to come. The two may soon deploy to Afghanistan, where donkeys and mules have been the preferred mode of military transport for centuries -- and remain so.
With the U.S. shifting its focus from the deserts of Iraq to the mountains of Central Asia, this course on pack animals at the Marine Corps Mountain Warfare Training Center has become critical to the new mission.
Opened in 1951 to train troops for Korea, the center -- with its administrative buildings, barracks, corrals and an enormous tent for visiting troops -- is set on 47,000 acres of the Humboldt-Toiyabe National Forest, where serrated peaks above 10,000 feet are the perfect terrain to teach high-altitude combat skills.
Five donkeys, 24 mules and five sergeant trainers are stationed at the center for the course, which is given eight times a year to Marines, Army soldiers, Navy SEALs and some foreign troops.
Humvees and even helicopters are of limited use in Afghanistan's mountains. There are few roads and the air is thin. But a 1,000-pound mule or 400-pound donkey can easily carry a load one-third its weight -- or more, if necessary.
The weapons of war have changed, but the basics of handling donkeys and mules -- like the sawbuck saddle and packs on Annie -- are not much different from how they were in the time of Genghis Khan.
"It's a very primitive way to carry very modern weapons," said Sgt. Joe Neal, one of the instructors. "But it works."
On the first day of the 12-day course, Campbell, Cross and 40 other junior Marines, all from Camp Pendleton, listened intently at the corral in Pickel Meadows as instructors spoke of battles won with the help of four-footed allies.
One of the Marine Corps' most fabled heroes, Sgt. Maj. Daniel Daly, earned his second Medal of Honor for leading pack animals into combat against Haitian bandits in 1915.
Assigned one of the older, scruffier mules, two of the Marines later insisted the animal must have deployed with Daly.
The students learned to pack machine guns, mortars, grenades, Javelin missiles and M-16 ammunition, as well as food, water and medical supplies -- all needed to carry the fight to the enemy.
"The Taliban are born mountain men, they can move faster in that terrain than we can," said Staff Sgt. Tyler McDaniel, an Iraq war veteran who is now the lead instructor for the course. "The pack animals are a force multiplier. They make sure we can get enough gear and men to the fight."
For some of the Marines here, animals were part of their upbringing. "I'm used to breaking horses, but I'm not used to packing mules," said Pfc. James Moody, 19, of Zavalla, Texas.
But others had no experience. "This is all new to me," said Cpl. Bradley Neuenburg, a 20-year-old computer buff from San Rafael in Northern California. "I'm more used to basic syntax, binary language and codes."
In the beginning, some were tentative with the animals, leery of being kicked and reluctant to take charge. Instructors prowled around the corral as the two-man teams struggled.
"Pull that rope tight," Sgt. Graham Golden told Neuenburg in a voice loud enough to be heard by others having the same difficulty. "You're not going to hurt the mule, and otherwise that load is going to fall off up the mountain."
After several days of learning to handle rope, tie knots and hitches, and pack and balance loads, the students were graded on the knots -- and their demeanor around the animals.
"It's a dying skill that we need to revive," said Sgt. Jerry Meece, 35, a lean, slow-talking native of Lufkin, Texas, who was a rodeo bull rider for a dozen years before enlisting.
The animal packers course dates to the 1980s, when the CIA sent operatives here before they were dispatched to help the Afghans fight the Soviet occupation force. The agency bought several thousand mules for the Afghans to maintain supply lines.
When they reach Afghanistan, the Marines probably will work with donkeys, which are cheaper and more common. A good donkey can be had there for $5.
As the Marines prepared for their first "hump" up the mountain, instruction was intense, laced with an obscenity that is integral to military patois. Golden spotted Pfc. James McGuckin, an 18-year-old from Staten Island, curling a rope around his hand and forearm like a suburbanite wrapping a garden hose for storage.
"Is that the way I taught you to handle ropes?" he bellowed, slamming his clipboard to the ground. "Pay attention to detail! Are you a [expletive] Marine or in the [expletive] Army?"
In combat, said Golden, 27, of Ferndale, Ark., any deviation from training can get Marines killed.
McGuckin froze to attention and carefully placed the rope on the ground. Other Marines watched wordlessly -- seemingly relieved it was someone else who was the object of their teacher's ire.
Later, as he waited in line at the chow hall, McGuckin said he did not mind being bawled out. "Someday, when we're in a fight, we're going to need those animals and those ropes," he said.
The trek up the mountain to a grassy meadow the Marines call LZ (Landing Zone) Penguin came on the fourth day. The rain of previous days had abated, and only a few clouds shielded the Marines and the animals from bright sunshine.
The Marines and animals trudged for more than three hours and three miles up narrow, rock-strewn trails, a climb of about 1,000 feet in altitude.
More arduous journeys would follow in the next eight days. One would test the Marines' ability to use their animals to retrieve U.S. injured and dead from a helicopter crash, with 200-pound dummies called Rescue Randys as faux casualties.
The mules were purchased by the Marines from an outfitter in Montana. The donkeys were rounded up by the Bureau of Land Management from its vast acreage.
The mules -- bigger, sleeker and more cooperative -- led the single-file procession. The donkeys were in back. The Marines devised different strategies for their maiden convoy.
Lance Cpl. Usay Vue, 25, of Fresno, put apples from the chow hall in his backpack. His mule, Gray, could smell the fruit and nosed the pack. He seemed to be imploring Vue with a longing look in his brown eyes.
As they waited in the corral for the order to move out, Vue gave in and fed the mule a slice.
"You be good to me," he whispered in the animal's ear, "and I'll feed you more later."
Vue's partner, Pfc. Tony Chan, 20, of Queens, N.Y., found that their apple system worked well -- maybe too well. Gray wanted to move faster than the column. "He was trying to motivate me, I guess," Chan said.
Pfc. Ilya Ward and Lance Cpl. John Fisher designed a buddy system. One would take the reins while the other ran ahead to rip up clumps of grass to feed their donkey, Jimmy.
"It's a way to keep Jimmy motivated," said Ward, who rode horses in his native Siberia.
On those half a dozen occasions when Annie refused to budge, Campbell and Cross stuck to the dictum drilled into them: Donkeys do not respond well to rough treatment or harsh language.
Sgt. Chad Giles sat on his horse and watched the two 20-year-olds coax and cajole Annie. He urged persistence but admonished against rude language, saying they should talk to her as they would a woman they loved.
Another Marine had trouble summoning up patience as his brownish donkey refused to move, braying its discontent and threatening to bring the convoy to a halt.
"I got the absolute worst [expletive] one of all," cried Pfc. Patrick Burree, 22, of Santa Barbara.
Giles, 25, of Provo, Utah, was not sympathetic. "I told you not to talk to her like that," he said, shaking his head in one of those "some people never learn" gestures.
After a short rest, the donkey moved on its own.
The final push, to about 8,000 feet, was through a grove of pine trees to a meadow the size of several football fields, with a small stream, shade trees and an abundance of sweet grass. A snow-capped peak loomed in the distance.
For the donkeys and the mules -- bred for strength and stamina -- the size of their loads and the steepness of the terrain were no problem. For the Marines, each with a 30-pound pack, they were.
Many were winded and flushed.
"She's OK, but I could be better," admitted Campbell, scratching Annie's chin and patting her sides.
"We wanted a challenge and we got what we asked for," Cross said.
Campbell, of Pleasant Hill, Mo., and Cross, of Altus, Okla., were pleased they had passed the first test. Campbell let Gus, a friend of Annie's, take a bite of an apple -- and then took a bite himself.
"A little bit of donkey slobber never hurt nobody," he said.
Marines rested; animals grazed. The march down would be quicker, easier.
"Now we know we can do it," Cross said, "even when you get a stubborn one."
tony.perry@latimes.com
--------------------------
What they dont tell you is that donkeys in war zones are routinely used as involuntary "suicide bombers"" when they load them up with remote control explosive devices and send them into or plant them in target areas where the explosives are designated blowing the donkey and everything nearby to hell. Guess there is a shortage now of Afganistian donks so they have to import them from the BLM.
Click on title above for original article with pics and video;
http://www.latimes.com/news/local/la-me-donkeys7-2009jul07,0,6183548,full.story
July 7, 2009
Reporting from Bridgeport, Calif. - With 75 pounds of military gear cinched on her furry back, Annie was stubborn the whole way.
The two Marines assigned to her pushed, pulled and sweet-talked her up the steep, twisting trail on the eastern side of the Sierra Nevada.
"C'mon, girl, you can make it," Lance Cpl. Chad Campbell whispered in her ear.
"Only one more hill," promised Lance Cpl. Cameron Cross as he shoved Annie's muscular hindquarters.
The red-hued donkey snorted, nibbled on grass and let loose that distinctive braying, which begins with a loud nasal inhalation and concludes with an even louder blast of deep-throated protest.
She also dropped green, foul-smelling clumps, which the Marines carefully sidestepped.
On the rocky, uneven path, Annie never stumbled. A good donkey, Marines say, knows three steps ahead where it wants to walk.
For Campbell and Cross, the day with Annie could be a preview of days to come. The two may soon deploy to Afghanistan, where donkeys and mules have been the preferred mode of military transport for centuries -- and remain so.
With the U.S. shifting its focus from the deserts of Iraq to the mountains of Central Asia, this course on pack animals at the Marine Corps Mountain Warfare Training Center has become critical to the new mission.
Opened in 1951 to train troops for Korea, the center -- with its administrative buildings, barracks, corrals and an enormous tent for visiting troops -- is set on 47,000 acres of the Humboldt-Toiyabe National Forest, where serrated peaks above 10,000 feet are the perfect terrain to teach high-altitude combat skills.
Five donkeys, 24 mules and five sergeant trainers are stationed at the center for the course, which is given eight times a year to Marines, Army soldiers, Navy SEALs and some foreign troops.
Humvees and even helicopters are of limited use in Afghanistan's mountains. There are few roads and the air is thin. But a 1,000-pound mule or 400-pound donkey can easily carry a load one-third its weight -- or more, if necessary.
The weapons of war have changed, but the basics of handling donkeys and mules -- like the sawbuck saddle and packs on Annie -- are not much different from how they were in the time of Genghis Khan.
"It's a very primitive way to carry very modern weapons," said Sgt. Joe Neal, one of the instructors. "But it works."
On the first day of the 12-day course, Campbell, Cross and 40 other junior Marines, all from Camp Pendleton, listened intently at the corral in Pickel Meadows as instructors spoke of battles won with the help of four-footed allies.
One of the Marine Corps' most fabled heroes, Sgt. Maj. Daniel Daly, earned his second Medal of Honor for leading pack animals into combat against Haitian bandits in 1915.
Assigned one of the older, scruffier mules, two of the Marines later insisted the animal must have deployed with Daly.
The students learned to pack machine guns, mortars, grenades, Javelin missiles and M-16 ammunition, as well as food, water and medical supplies -- all needed to carry the fight to the enemy.
"The Taliban are born mountain men, they can move faster in that terrain than we can," said Staff Sgt. Tyler McDaniel, an Iraq war veteran who is now the lead instructor for the course. "The pack animals are a force multiplier. They make sure we can get enough gear and men to the fight."
For some of the Marines here, animals were part of their upbringing. "I'm used to breaking horses, but I'm not used to packing mules," said Pfc. James Moody, 19, of Zavalla, Texas.
But others had no experience. "This is all new to me," said Cpl. Bradley Neuenburg, a 20-year-old computer buff from San Rafael in Northern California. "I'm more used to basic syntax, binary language and codes."
In the beginning, some were tentative with the animals, leery of being kicked and reluctant to take charge. Instructors prowled around the corral as the two-man teams struggled.
"Pull that rope tight," Sgt. Graham Golden told Neuenburg in a voice loud enough to be heard by others having the same difficulty. "You're not going to hurt the mule, and otherwise that load is going to fall off up the mountain."
After several days of learning to handle rope, tie knots and hitches, and pack and balance loads, the students were graded on the knots -- and their demeanor around the animals.
"It's a dying skill that we need to revive," said Sgt. Jerry Meece, 35, a lean, slow-talking native of Lufkin, Texas, who was a rodeo bull rider for a dozen years before enlisting.
The animal packers course dates to the 1980s, when the CIA sent operatives here before they were dispatched to help the Afghans fight the Soviet occupation force. The agency bought several thousand mules for the Afghans to maintain supply lines.
When they reach Afghanistan, the Marines probably will work with donkeys, which are cheaper and more common. A good donkey can be had there for $5.
As the Marines prepared for their first "hump" up the mountain, instruction was intense, laced with an obscenity that is integral to military patois. Golden spotted Pfc. James McGuckin, an 18-year-old from Staten Island, curling a rope around his hand and forearm like a suburbanite wrapping a garden hose for storage.
"Is that the way I taught you to handle ropes?" he bellowed, slamming his clipboard to the ground. "Pay attention to detail! Are you a [expletive] Marine or in the [expletive] Army?"
In combat, said Golden, 27, of Ferndale, Ark., any deviation from training can get Marines killed.
McGuckin froze to attention and carefully placed the rope on the ground. Other Marines watched wordlessly -- seemingly relieved it was someone else who was the object of their teacher's ire.
Later, as he waited in line at the chow hall, McGuckin said he did not mind being bawled out. "Someday, when we're in a fight, we're going to need those animals and those ropes," he said.
The trek up the mountain to a grassy meadow the Marines call LZ (Landing Zone) Penguin came on the fourth day. The rain of previous days had abated, and only a few clouds shielded the Marines and the animals from bright sunshine.
The Marines and animals trudged for more than three hours and three miles up narrow, rock-strewn trails, a climb of about 1,000 feet in altitude.
More arduous journeys would follow in the next eight days. One would test the Marines' ability to use their animals to retrieve U.S. injured and dead from a helicopter crash, with 200-pound dummies called Rescue Randys as faux casualties.
The mules were purchased by the Marines from an outfitter in Montana. The donkeys were rounded up by the Bureau of Land Management from its vast acreage.
The mules -- bigger, sleeker and more cooperative -- led the single-file procession. The donkeys were in back. The Marines devised different strategies for their maiden convoy.
Lance Cpl. Usay Vue, 25, of Fresno, put apples from the chow hall in his backpack. His mule, Gray, could smell the fruit and nosed the pack. He seemed to be imploring Vue with a longing look in his brown eyes.
As they waited in the corral for the order to move out, Vue gave in and fed the mule a slice.
"You be good to me," he whispered in the animal's ear, "and I'll feed you more later."
Vue's partner, Pfc. Tony Chan, 20, of Queens, N.Y., found that their apple system worked well -- maybe too well. Gray wanted to move faster than the column. "He was trying to motivate me, I guess," Chan said.
Pfc. Ilya Ward and Lance Cpl. John Fisher designed a buddy system. One would take the reins while the other ran ahead to rip up clumps of grass to feed their donkey, Jimmy.
"It's a way to keep Jimmy motivated," said Ward, who rode horses in his native Siberia.
On those half a dozen occasions when Annie refused to budge, Campbell and Cross stuck to the dictum drilled into them: Donkeys do not respond well to rough treatment or harsh language.
Sgt. Chad Giles sat on his horse and watched the two 20-year-olds coax and cajole Annie. He urged persistence but admonished against rude language, saying they should talk to her as they would a woman they loved.
Another Marine had trouble summoning up patience as his brownish donkey refused to move, braying its discontent and threatening to bring the convoy to a halt.
"I got the absolute worst [expletive] one of all," cried Pfc. Patrick Burree, 22, of Santa Barbara.
Giles, 25, of Provo, Utah, was not sympathetic. "I told you not to talk to her like that," he said, shaking his head in one of those "some people never learn" gestures.
After a short rest, the donkey moved on its own.
The final push, to about 8,000 feet, was through a grove of pine trees to a meadow the size of several football fields, with a small stream, shade trees and an abundance of sweet grass. A snow-capped peak loomed in the distance.
For the donkeys and the mules -- bred for strength and stamina -- the size of their loads and the steepness of the terrain were no problem. For the Marines, each with a 30-pound pack, they were.
Many were winded and flushed.
"She's OK, but I could be better," admitted Campbell, scratching Annie's chin and patting her sides.
"We wanted a challenge and we got what we asked for," Cross said.
Campbell, of Pleasant Hill, Mo., and Cross, of Altus, Okla., were pleased they had passed the first test. Campbell let Gus, a friend of Annie's, take a bite of an apple -- and then took a bite himself.
"A little bit of donkey slobber never hurt nobody," he said.
Marines rested; animals grazed. The march down would be quicker, easier.
"Now we know we can do it," Cross said, "even when you get a stubborn one."
tony.perry@latimes.com
--------------------------
What they dont tell you is that donkeys in war zones are routinely used as involuntary "suicide bombers"" when they load them up with remote control explosive devices and send them into or plant them in target areas where the explosives are designated blowing the donkey and everything nearby to hell. Guess there is a shortage now of Afganistian donks so they have to import them from the BLM.
Click on title above for original article with pics and video;
http://www.latimes.com/news/local/la-me-donkeys7-2009jul07,0,6183548,full.story
Wild Horse (and Burro) Warriors Take Credit for Rustling Cattle Out of Wild Horse (and Burro) Country
Words has it but authorities wont confirm, that in the area where the rustlers were spotted there was a message drawn in the sand that said,..."Wild Horse Warriors were Here" and "No Cows in Wild Horse Country Please." Isnt it nice of them to be so polite? I wonder what they did with them cows....put them in a farm sanctuary somewhere I suppose, anywhere safe but...out of wild horse country at last. Geeze we hope this dont start a welfare-rancher domestic cattle-rustling trend!
Click title above for full story.
Click title above for full story.
An Interesting Case of Neglect & BLM Held Blameless
(Soverign Immunity in Discretionary Matters)
Pearson v. United States Department of Interior
United States Court of Appeals, Ninth Circuit.
UNPUBLISHED, 1993 WL 438760
October 28, 1993
Summary of Opinion
The plaintiffs were injured by horses or burros wandering onto an unfenced highway and colliding with the plaintiffs' cars. The land was federal land, managed jointly by the Bureau of Land Management and the Department of the Army. The trial court granted summary judgment to the United States government and the plaintiffs appeal.
The Court of Appeals held that the conduct of the United States government came within the discretionary function exception to the waiver of sovereign immunity in the Tort Claims Act. A person cannot sue a sovereign (a state or the United States) without the sovereign's permission and except in accordance with the waiver of immunity by the sovereign. In the case of the United States, the waiver of sovereign immunity appears in the federal Tort Claims Act. Excepted from the waiver are discretionary governmental functions.
The Court of Appeals held that the decision not to fence off the highway was discretionary, that the decision to provide food and water for the horses near the highway was also discretionary, and, finally, the United States government was exercising a discretionary function when it delegated responsibilities for warning motorists of the presence of the horses and burros to the State of Arizona. Since all of these functions were discretionary, the United States was not liable for the injuries to the plaintiffs.
Text of Opinion
Gilbert and Phyliss Pearson, Darren, Carla and Ashley Ford, and Tonia and Korrina Bovee ("the plaintiffs") appeal the district court's grant of summary judgment in favor of the United States, in their consolidated actions under the Federal Tort Claims Act (FTCA) for injuries sustained when vehicles they or their relatives were traveling in collided with horses or burros, managed by the federal government, on an Arizona state highway.
This case involves three consolidated actions against the United States under the FTCA. The claims arose from two separate accidents in which cars collided with wild horses or burros on U.S. 95. One accident occurred near milepost 56.8 and the other near milepost 55.5 of U.S. 95, an unfenced Arizona state highway which runs through the U.S. Army Yuma Proving Grounds.
The Yuma Proving Grounds is part of the Cibola-Trigo Herd Management Area, an area established by the Bureau of Land Management (BLM) for the maintenance of wild free-roaming horses and burros. Management of wild horses and burros that inhabit the Yuma Proving Grounds is jointly administered by the Army and the BLM, with the BLM taking the "lead role."
The plaintiffs allege that the United States government was negligent in (1) failing to prevent wild horses and burros from crossing U.S. 95; (2) providing food and water sources for the animals near U.S. 95; and (3) failing to warn motorists on U.S. 95 of the presence of the animals.
The government moved for summary judgment. It argued that the federal government, as a possessor of land abutting a state highway, owed no duty under Arizona law to motorists traveling on the highway and that any duty under Arizona law which would require the United States to prevent wild horses and burros from roaming onto a public highway was preempted by the Wild Free- Roaming Horses and Burros Act.
The district court granted summary judgment in favor of the government on all of the plaintiffs' claims, holding that the Burros Act created no independent duty on the part of the federal government to prevent wild animals from straying onto the highway and that the Burros Act "preempts any potential, state-imposed duty on landowners to prevent livestock or other animals from roaming onto public roadways."
We review de novo the district court's determination of subject matter jurisdiction. It is "well-established law that ... jurisdictional defenses," such as the discretionary function exception to the FTCA's waiver of sovereign immunity, "cannot be waived by the parties and may be raised for the first time on appeal or even raised by a court sua sponte."
The FTCA authorizes suits against the United States for damages for personal injuries when a private person would be liable under the law of the place where the act or omission causing the injury occurred. Such a suit is not available, however, when the act or omission complained of is "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the [g]overnment." The government has the burden of proving the discretionary function exception to the FTCA's general waiver of immunity. In accordance with the Supreme Court's decision in Berkovitz v. United States, 486 U.S. 531 (1988), we use a two-step test to determine whether the discretionary function exception applies. First, we consider "whether the challenged action is a matter of choice for the acting employees: '[T]he discretionary function exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow' " and the employee fails to follow that course of action. Second, if the challenged conduct does involve an element of judgment, we must determine whether that judgment "is of a kind that the discretionary function was designed to shield." The discretionary function was designed to protect from review decisions "susceptible to policy analysis."
IS THE GOVERNMENT LIABLE FOR FAILING TO FENCE? The United States government is protected by the discretionary function exception for the BLM's decision not to fence the land adjacent to U.S. 95 or otherwise prevent wild horses and burros from crossing the highway, notwithstanding the BLM's knowledge of accidents involving such animals on U.S. 95. First, no federal statute, regulation, or policy requires the BLM to fence federal grazing land adjacent to highways. Furthermore, we have previously determined that the Burros Act, though creating a duty on the part of the BLM to remove wild horses and burros that stray onto private land upon request," does not require the BLM to prevent straying in the first instance."
Second, the BLM's decision to leave the land adjacent to U.S. 95 unfenced and not prevent wild horses and burros from straying onto the highway is susceptible to the type of policy considerations protected by the discretionary function exception. The BLM has discretion to balance the safety gains to be achieved by fencing the highway, against the congressional directives to: (1) consider the wild horses and burros in the area where they are presently found as an "integral part of the natural system of the public lands," (2) manage the "wild free-roaming horses and burros in a manner that is designed to achieve and maintain a thriving natural ecological balance on the public lands," (3) keep management activities "at the minimum feasible level" to avoid " 'zoolike' developments," and (4) manage the wild horses and burros "with the goal of maintaining free-roaming behavior," while considering the other uses of the public and adjacent private land. The BLM's decision to leave U.S. 95 unfenced and allow wild horses and burros to cross the highway is readily distinguishable from cases where an agency is alleged to have ignored an established safety policy rather than to have balanced competing considerations. Compare Richardson v. United States, 943 F.2d 1107, 1112 (9th Cir.1991) (agency decision to install overhead ground wires at certain places and not others was not made in disregard of safety considerations), with Summers, 905 F.2d at 1215-16 (agency failure to identify and warn of danger of hot coals on park beaches was not a balanced policy decision, but rather a departure from established safety policy); ARA Leisure Services Inc. v. United States, 831 F.2d 193, 195-96 (9th Cir.1987) (agency decision to design and construct road without guardrails was grounded in social and political policy, but agency failure to maintain road in safe condition was not grounded in policy). The BLM's discretionary decision not to prevent wild horses and burros from crossing U.S. 95 is not subject to "judicial second-guessing."
The United States is also protected by the discretionary function exception for the Army's decision not to fence the land adjacent to U.S. 95 or otherwise prevent wild horses and burros from crossing the highway. No federal statute, regulation, or policy requires the Army to fence federal land adjacent to highways Rather, the Army has discretion to enter into cooperative agreements with the BLM and allow the BLM to take the lead role in management of the Yuma Proving Grounds.
The Army's agreement with the BLM, which provides that the BLM will take the lead in management of the Yuma Proving Grounds, is broad enough to confer management responsibility upon the BLM to decide whether to prevent wild horses and burros from crossing U.S. 95. This decision is susceptible to policy considerations of efficiency, effectiveness, and cooperation with federal agencies that share mutual interests. We will not second-guess this decision.
IS THE GOVERNMENT LIABLE FOR PROVIDING FOOD AND WATER NEAR THE HIGHWAY? The United States is also protected by the discretionary function exception for the BLM's decision to provide food along Highway 95 for wild horses and burros. This decision is susceptible to the type of policy considerations protected by the discretionary function exception. Policy considerations implicated in the BLM's decision of food placement, in addition to the safety of passing motorists, include the feasibility, expense, and safety of workers and animals if food were provided further from the highway and deeper within the national defense lands used for weapon and equipment testing. The United States is also protected by the discretionary function exception for the BLM's decision to place water along the highway. While the BLM may develop "new sources of water" for the wild horses and burros to mitigate loss of access to water along the Colorado River, the BLM may not allow water developments for horses and burros "that would expand their present herd areas." "Herd area" means "the geographic area identified as having been used by a herd as its habitat in 1971." Program Guidance provides information for calculating the 1971 herd areas. It states:
Because the exact boundaries of herd areas may never be known in some cases, and because disagreement and confusion on the subject can be expected until firm herd area delineations are made, each district must seek to resolve the question in an objective manner. An intensive effort should be made to seek documentation that would support a delineation of herd area boundaries, and to incorporate these herd areas into the land use plan....
In cases where no objective determination about herd areas can be made by analyzing the information available, the authorized officer may elect to address the question of 1971 herd areas by planning area. The Management Plan does not explicitly delineate the boundaries of the 1971 herd areas. The Management Plan states The wild horse and burro populations within the Cibola-Trigo Herd Management Area (C-T HMA) roam freely on lands with different administrative responsibilities. These animals roam off and on lands administered by the Yuma BLM District, Cibola National Wildlife Refuge, Imperial National Wildlife Refuge, U.S. Army Yuma Proving Ground, and the State of Arizona ....
The key to managing the Cibola-Trigo Herd Management Area is to manage the critical area. The critical area is an area radiating out from the Colorado River in which large populations of burros concentrate around permanent water sources during the hot or dry seasons. The critical area consists of approximately 253,000 acres....
The BLM's placement of water along the highway did not expand 1971 herd areas, regardless of whether the water placement encouraged animals to cross U.S. 95 and regardless of whether the Management Plan is interpreted to define herd areas by herd habitat or planning area. The Management Plan indicates that the herds roam off and on lands administered by the State of Arizona, such as U.S. 95. The Management Plan also indicates that the planning area includes the Yuma Proving Grounds, which lies on both sides of U.S. 95. As long as herd areas were not expanded by the location of new water sources, which they were not, the water placement decision was discretionary. The BLM's decision to place water sources along the highway is susceptible to the same policy considerations implicated in its decision to place food sources along the highway. Accordingly, judicial review of the BLM's decision is inappropriate.
The United States is also shielded by the discretionary function exception for the Army's decision to provide food and water along the highway. No mandatory federal statute, regulation, or policy clearly dictates a particular course of conduct for the Army to follow on the subject of feeding or watering wild horses and burros, jointly administered by the Army and the BLM, found on the Yuma Proving Ground.
The Army has discretion in carrying out its managerial responsibilities of the wild horses and burros. In providing food and water near the highway for the wild horses and burros, the Army had to consider the multiple uses of the land, the safety of animals and federal employees if food and water were provided further within the defense lands, and the expense. Again, Congress has directed that decisions susceptible to policy analysis are not subject to judicial review.
FAILING TO WARN MOTORISTS OF THE HORSE HAZARD: Failing to warn motorists on U.S. 95 of the possible presence of wild horses and burros The United States is protected by the discretionary function exception for the BLM's decision not to post warning signs on U.S. 95. While no federal statute, regulation, or policy requires the BLM itself to post warning signs on U.S. 95, the Management Plan does require the BLM to initiate a program with the Arizona Department of Transportation (ADOT) to alleviate auto-horse and auto-burro collisions. Specifically, the Management Plan provides:
This action consists of initiating a program with Arizona Department of Transportation to place highway warning signs on horse and burro crossings. The warning signs should be erected near the known crossing points as follows:
1. Highway 95 in vicinity of Laguna Road;
2. Highway 95 in vicinity of mile post 49.5;
3. Highway 95 in vicinity of mile post 58;
4. Martinez Lake Road 1/2 mile from Highway 95, at pipeline crossing."
The plaintiffs do not allege that the BLM failed to fulfill its nondiscretionary duty to initiate a program with ADOT to post the highway warning signs. In fact, a report prepared by the plaintiffs' expert indicates there are seven animal warning signs posted by the State of Arizona on southbound U.S. 95 between mileposts 50.0 and 75.8, and six animal warning signs posted northbound U.S. 95, between mileposts 42.3 and 71.7.
The BLM's reliance on Arizona to fulfill the signing program is a discretionary decision, grounded in policy implications and concerns of federalism, and is shielded from review. The qualified immunity exception also immunizes the United States from any liability stemming from the Army's decision not to post warning signs on U.S. 95. No federal statute, regulation, or policy requires the Army to post warning signs on U.S. 95. See 1978 Memorandum of Agreement; 1989 Cooperative Agreement. Rather, the Army has discretion to enter into cooperative agreements with the BLM and allow the BLM to take the lead role in management of the Yuma Proving Grounds. The Army's agreement with the BLM is broad enough to confer the BLM with the management responsibility of deciding whether to post warning signs along U.S. 95.
Because the discretionary function exception to the FTCA's waiver of sovereign immunity shields review of all of the alleged acts of negligence by United States' employees, we need not decide whether federal law preempts any potential state imposed duty on landowners to prevent wild horses and burros from roaming onto public roadways.
--------------------------------------------------------------------------------
Pearson v. United States Department of Interior
United States Court of Appeals, Ninth Circuit.
UNPUBLISHED, 1993 WL 438760
October 28, 1993
Summary of Opinion
The plaintiffs were injured by horses or burros wandering onto an unfenced highway and colliding with the plaintiffs' cars. The land was federal land, managed jointly by the Bureau of Land Management and the Department of the Army. The trial court granted summary judgment to the United States government and the plaintiffs appeal.
The Court of Appeals held that the conduct of the United States government came within the discretionary function exception to the waiver of sovereign immunity in the Tort Claims Act. A person cannot sue a sovereign (a state or the United States) without the sovereign's permission and except in accordance with the waiver of immunity by the sovereign. In the case of the United States, the waiver of sovereign immunity appears in the federal Tort Claims Act. Excepted from the waiver are discretionary governmental functions.
The Court of Appeals held that the decision not to fence off the highway was discretionary, that the decision to provide food and water for the horses near the highway was also discretionary, and, finally, the United States government was exercising a discretionary function when it delegated responsibilities for warning motorists of the presence of the horses and burros to the State of Arizona. Since all of these functions were discretionary, the United States was not liable for the injuries to the plaintiffs.
Text of Opinion
Gilbert and Phyliss Pearson, Darren, Carla and Ashley Ford, and Tonia and Korrina Bovee ("the plaintiffs") appeal the district court's grant of summary judgment in favor of the United States, in their consolidated actions under the Federal Tort Claims Act (FTCA) for injuries sustained when vehicles they or their relatives were traveling in collided with horses or burros, managed by the federal government, on an Arizona state highway.
This case involves three consolidated actions against the United States under the FTCA. The claims arose from two separate accidents in which cars collided with wild horses or burros on U.S. 95. One accident occurred near milepost 56.8 and the other near milepost 55.5 of U.S. 95, an unfenced Arizona state highway which runs through the U.S. Army Yuma Proving Grounds.
The Yuma Proving Grounds is part of the Cibola-Trigo Herd Management Area, an area established by the Bureau of Land Management (BLM) for the maintenance of wild free-roaming horses and burros. Management of wild horses and burros that inhabit the Yuma Proving Grounds is jointly administered by the Army and the BLM, with the BLM taking the "lead role."
The plaintiffs allege that the United States government was negligent in (1) failing to prevent wild horses and burros from crossing U.S. 95; (2) providing food and water sources for the animals near U.S. 95; and (3) failing to warn motorists on U.S. 95 of the presence of the animals.
The government moved for summary judgment. It argued that the federal government, as a possessor of land abutting a state highway, owed no duty under Arizona law to motorists traveling on the highway and that any duty under Arizona law which would require the United States to prevent wild horses and burros from roaming onto a public highway was preempted by the Wild Free- Roaming Horses and Burros Act.
The district court granted summary judgment in favor of the government on all of the plaintiffs' claims, holding that the Burros Act created no independent duty on the part of the federal government to prevent wild animals from straying onto the highway and that the Burros Act "preempts any potential, state-imposed duty on landowners to prevent livestock or other animals from roaming onto public roadways."
We review de novo the district court's determination of subject matter jurisdiction. It is "well-established law that ... jurisdictional defenses," such as the discretionary function exception to the FTCA's waiver of sovereign immunity, "cannot be waived by the parties and may be raised for the first time on appeal or even raised by a court sua sponte."
The FTCA authorizes suits against the United States for damages for personal injuries when a private person would be liable under the law of the place where the act or omission causing the injury occurred. Such a suit is not available, however, when the act or omission complained of is "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the [g]overnment." The government has the burden of proving the discretionary function exception to the FTCA's general waiver of immunity. In accordance with the Supreme Court's decision in Berkovitz v. United States, 486 U.S. 531 (1988), we use a two-step test to determine whether the discretionary function exception applies. First, we consider "whether the challenged action is a matter of choice for the acting employees: '[T]he discretionary function exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow' " and the employee fails to follow that course of action. Second, if the challenged conduct does involve an element of judgment, we must determine whether that judgment "is of a kind that the discretionary function was designed to shield." The discretionary function was designed to protect from review decisions "susceptible to policy analysis."
IS THE GOVERNMENT LIABLE FOR FAILING TO FENCE? The United States government is protected by the discretionary function exception for the BLM's decision not to fence the land adjacent to U.S. 95 or otherwise prevent wild horses and burros from crossing the highway, notwithstanding the BLM's knowledge of accidents involving such animals on U.S. 95. First, no federal statute, regulation, or policy requires the BLM to fence federal grazing land adjacent to highways. Furthermore, we have previously determined that the Burros Act, though creating a duty on the part of the BLM to remove wild horses and burros that stray onto private land upon request," does not require the BLM to prevent straying in the first instance."
Second, the BLM's decision to leave the land adjacent to U.S. 95 unfenced and not prevent wild horses and burros from straying onto the highway is susceptible to the type of policy considerations protected by the discretionary function exception. The BLM has discretion to balance the safety gains to be achieved by fencing the highway, against the congressional directives to: (1) consider the wild horses and burros in the area where they are presently found as an "integral part of the natural system of the public lands," (2) manage the "wild free-roaming horses and burros in a manner that is designed to achieve and maintain a thriving natural ecological balance on the public lands," (3) keep management activities "at the minimum feasible level" to avoid " 'zoolike' developments," and (4) manage the wild horses and burros "with the goal of maintaining free-roaming behavior," while considering the other uses of the public and adjacent private land. The BLM's decision to leave U.S. 95 unfenced and allow wild horses and burros to cross the highway is readily distinguishable from cases where an agency is alleged to have ignored an established safety policy rather than to have balanced competing considerations. Compare Richardson v. United States, 943 F.2d 1107, 1112 (9th Cir.1991) (agency decision to install overhead ground wires at certain places and not others was not made in disregard of safety considerations), with Summers, 905 F.2d at 1215-16 (agency failure to identify and warn of danger of hot coals on park beaches was not a balanced policy decision, but rather a departure from established safety policy); ARA Leisure Services Inc. v. United States, 831 F.2d 193, 195-96 (9th Cir.1987) (agency decision to design and construct road without guardrails was grounded in social and political policy, but agency failure to maintain road in safe condition was not grounded in policy). The BLM's discretionary decision not to prevent wild horses and burros from crossing U.S. 95 is not subject to "judicial second-guessing."
The United States is also protected by the discretionary function exception for the Army's decision not to fence the land adjacent to U.S. 95 or otherwise prevent wild horses and burros from crossing the highway. No federal statute, regulation, or policy requires the Army to fence federal land adjacent to highways Rather, the Army has discretion to enter into cooperative agreements with the BLM and allow the BLM to take the lead role in management of the Yuma Proving Grounds.
The Army's agreement with the BLM, which provides that the BLM will take the lead in management of the Yuma Proving Grounds, is broad enough to confer management responsibility upon the BLM to decide whether to prevent wild horses and burros from crossing U.S. 95. This decision is susceptible to policy considerations of efficiency, effectiveness, and cooperation with federal agencies that share mutual interests. We will not second-guess this decision.
IS THE GOVERNMENT LIABLE FOR PROVIDING FOOD AND WATER NEAR THE HIGHWAY? The United States is also protected by the discretionary function exception for the BLM's decision to provide food along Highway 95 for wild horses and burros. This decision is susceptible to the type of policy considerations protected by the discretionary function exception. Policy considerations implicated in the BLM's decision of food placement, in addition to the safety of passing motorists, include the feasibility, expense, and safety of workers and animals if food were provided further from the highway and deeper within the national defense lands used for weapon and equipment testing. The United States is also protected by the discretionary function exception for the BLM's decision to place water along the highway. While the BLM may develop "new sources of water" for the wild horses and burros to mitigate loss of access to water along the Colorado River, the BLM may not allow water developments for horses and burros "that would expand their present herd areas." "Herd area" means "the geographic area identified as having been used by a herd as its habitat in 1971." Program Guidance provides information for calculating the 1971 herd areas. It states:
Because the exact boundaries of herd areas may never be known in some cases, and because disagreement and confusion on the subject can be expected until firm herd area delineations are made, each district must seek to resolve the question in an objective manner. An intensive effort should be made to seek documentation that would support a delineation of herd area boundaries, and to incorporate these herd areas into the land use plan....
In cases where no objective determination about herd areas can be made by analyzing the information available, the authorized officer may elect to address the question of 1971 herd areas by planning area. The Management Plan does not explicitly delineate the boundaries of the 1971 herd areas. The Management Plan states The wild horse and burro populations within the Cibola-Trigo Herd Management Area (C-T HMA) roam freely on lands with different administrative responsibilities. These animals roam off and on lands administered by the Yuma BLM District, Cibola National Wildlife Refuge, Imperial National Wildlife Refuge, U.S. Army Yuma Proving Ground, and the State of Arizona ....
The key to managing the Cibola-Trigo Herd Management Area is to manage the critical area. The critical area is an area radiating out from the Colorado River in which large populations of burros concentrate around permanent water sources during the hot or dry seasons. The critical area consists of approximately 253,000 acres....
The BLM's placement of water along the highway did not expand 1971 herd areas, regardless of whether the water placement encouraged animals to cross U.S. 95 and regardless of whether the Management Plan is interpreted to define herd areas by herd habitat or planning area. The Management Plan indicates that the herds roam off and on lands administered by the State of Arizona, such as U.S. 95. The Management Plan also indicates that the planning area includes the Yuma Proving Grounds, which lies on both sides of U.S. 95. As long as herd areas were not expanded by the location of new water sources, which they were not, the water placement decision was discretionary. The BLM's decision to place water sources along the highway is susceptible to the same policy considerations implicated in its decision to place food sources along the highway. Accordingly, judicial review of the BLM's decision is inappropriate.
The United States is also shielded by the discretionary function exception for the Army's decision to provide food and water along the highway. No mandatory federal statute, regulation, or policy clearly dictates a particular course of conduct for the Army to follow on the subject of feeding or watering wild horses and burros, jointly administered by the Army and the BLM, found on the Yuma Proving Ground.
The Army has discretion in carrying out its managerial responsibilities of the wild horses and burros. In providing food and water near the highway for the wild horses and burros, the Army had to consider the multiple uses of the land, the safety of animals and federal employees if food and water were provided further within the defense lands, and the expense. Again, Congress has directed that decisions susceptible to policy analysis are not subject to judicial review.
FAILING TO WARN MOTORISTS OF THE HORSE HAZARD: Failing to warn motorists on U.S. 95 of the possible presence of wild horses and burros The United States is protected by the discretionary function exception for the BLM's decision not to post warning signs on U.S. 95. While no federal statute, regulation, or policy requires the BLM itself to post warning signs on U.S. 95, the Management Plan does require the BLM to initiate a program with the Arizona Department of Transportation (ADOT) to alleviate auto-horse and auto-burro collisions. Specifically, the Management Plan provides:
This action consists of initiating a program with Arizona Department of Transportation to place highway warning signs on horse and burro crossings. The warning signs should be erected near the known crossing points as follows:
1. Highway 95 in vicinity of Laguna Road;
2. Highway 95 in vicinity of mile post 49.5;
3. Highway 95 in vicinity of mile post 58;
4. Martinez Lake Road 1/2 mile from Highway 95, at pipeline crossing."
The plaintiffs do not allege that the BLM failed to fulfill its nondiscretionary duty to initiate a program with ADOT to post the highway warning signs. In fact, a report prepared by the plaintiffs' expert indicates there are seven animal warning signs posted by the State of Arizona on southbound U.S. 95 between mileposts 50.0 and 75.8, and six animal warning signs posted northbound U.S. 95, between mileposts 42.3 and 71.7.
The BLM's reliance on Arizona to fulfill the signing program is a discretionary decision, grounded in policy implications and concerns of federalism, and is shielded from review. The qualified immunity exception also immunizes the United States from any liability stemming from the Army's decision not to post warning signs on U.S. 95. No federal statute, regulation, or policy requires the Army to post warning signs on U.S. 95. See 1978 Memorandum of Agreement; 1989 Cooperative Agreement. Rather, the Army has discretion to enter into cooperative agreements with the BLM and allow the BLM to take the lead role in management of the Yuma Proving Grounds. The Army's agreement with the BLM is broad enough to confer the BLM with the management responsibility of deciding whether to post warning signs along U.S. 95.
Because the discretionary function exception to the FTCA's waiver of sovereign immunity shields review of all of the alleged acts of negligence by United States' employees, we need not decide whether federal law preempts any potential state imposed duty on landowners to prevent wild horses and burros from roaming onto public roadways.
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Tuesday, December 1, 2009
National Poll on Round Up Moratorium
Click on title above to vote in the poll and make your voice count for the wild ones! But hurry, dont wait, poll ends Dec 16th, 2009
Salazar, Reid, Abbey Approve $135 Million for Nevada and Lake Tahoe Projects
What R Feinds 4?
LAKE MEAD NATIONAL RECREATION AREA, NV -- Secretary of the Interior Ken Salazar, Senate Majority Leader Harry Reid and Bureau of Land Management Director Bob Abbey today approved more than $135 million for a variety of restoration and improvement projects throughout Nevada and Lake Tahoe under the Southern Nevada Public Land Management Act
“I am pleased to commit more than $135 million for federal improvement projects throughout Nevada at Lake Tahoe,” Salazar said. “The Department of the Interior remains committed to working closely with our local, state and federal partners to protect and enhance these specials areas for the benefit of all who live in and visit Nevada.”
“I thank Secretary Salazar and BLM director Abbey for coming to Searchlight to announce the approval of 135 million dollars for vital projects all around Nevada,” Reid said. “Today’s announcement is a great example of our efforts to strengthen and diversify Nevada's economy.”
"Thanks to these funds, NV's lands and special areas will continue to be accessible to the public and be healthier for years to come," said Abbey.
The Round 10 expenditures under the Act include more than $79.9 million for a variety of restoration and improvement projects throughout Nevada in the following categories:
Parks, Trails & Natural Areas - $10,239,022
Capital Improvements - $8,246,129
Conservation Initiatives - $7,655,107
Environmentally Sensitive Land Acquisitions - $13,066,000
Hazardous Fuels Reduction and Wildfire Prevention - $10,963,140
Eastern Nevada Landscape Restoration Project - $1,931,721
Lake Tahoe Restoration Projects - $27,891,285
The package also includes a $30 million set-aside for future Lake Tahoe projects, $10 million in a special account reserve for emergency or unexpected project expenditures, and more than $15.8 million for the previously approved Wetlands Park project in Clark County.
The expenditures are authorized through the Southern Nevada Public Land Management Act (SNPLMA) of 1998 (as amended), which generates revenue from the sale of public lands identified for disposal in the Las Vegas valley. The funds facilitate a broad array of restoration and improvement projects at Lake Tahoe, in Clark, Lincoln, and White Pine Counties, and to a limited extent Washoe County and Carson City.
— DOI —
LAKE MEAD NATIONAL RECREATION AREA, NV -- Secretary of the Interior Ken Salazar, Senate Majority Leader Harry Reid and Bureau of Land Management Director Bob Abbey today approved more than $135 million for a variety of restoration and improvement projects throughout Nevada and Lake Tahoe under the Southern Nevada Public Land Management Act
“I am pleased to commit more than $135 million for federal improvement projects throughout Nevada at Lake Tahoe,” Salazar said. “The Department of the Interior remains committed to working closely with our local, state and federal partners to protect and enhance these specials areas for the benefit of all who live in and visit Nevada.”
“I thank Secretary Salazar and BLM director Abbey for coming to Searchlight to announce the approval of 135 million dollars for vital projects all around Nevada,” Reid said. “Today’s announcement is a great example of our efforts to strengthen and diversify Nevada's economy.”
"Thanks to these funds, NV's lands and special areas will continue to be accessible to the public and be healthier for years to come," said Abbey.
The Round 10 expenditures under the Act include more than $79.9 million for a variety of restoration and improvement projects throughout Nevada in the following categories:
Parks, Trails & Natural Areas - $10,239,022
Capital Improvements - $8,246,129
Conservation Initiatives - $7,655,107
Environmentally Sensitive Land Acquisitions - $13,066,000
Hazardous Fuels Reduction and Wildfire Prevention - $10,963,140
Eastern Nevada Landscape Restoration Project - $1,931,721
Lake Tahoe Restoration Projects - $27,891,285
The package also includes a $30 million set-aside for future Lake Tahoe projects, $10 million in a special account reserve for emergency or unexpected project expenditures, and more than $15.8 million for the previously approved Wetlands Park project in Clark County.
The expenditures are authorized through the Southern Nevada Public Land Management Act (SNPLMA) of 1998 (as amended), which generates revenue from the sale of public lands identified for disposal in the Las Vegas valley. The funds facilitate a broad array of restoration and improvement projects at Lake Tahoe, in Clark, Lincoln, and White Pine Counties, and to a limited extent Washoe County and Carson City.
— DOI —
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