Consent Decrees and Consequences

I have spent the last day trying to figure out exactly how I want to word this blog entry. I am a wild Mustang advocate and an equine attorney, and those two parts of me are in conflict right now. I have read the 170-page PDF the BLM has issued concerning the proposed gather and removal of all horses from 3 HMAs in southwestern Wyoming. I was hoping to find a novel argument that would make the BLM decide not to pick that alternative among four that they mention in the report.

But the job of an attorney is to share the truth not to make people happy. The truth is that while this gather might be delayed for reasons I’ll discuss in a minute, the BLM will invariably remove these Mustangs and in fact, has the legal power to do so. That power was given to it in a Consent Decree (a court order) issued way back in 2011. The alternative the BLM advocates – the removal of those Mustangs and literally making it so that wild Mustangs no longer live there – is expressly listed in that court order. The BLM is following the law. I wish I didn’t have to say that, but I do. There are still ways to help the Mustangs so read on after you take a minute to let that sink in.

How did we get here?

In a nutshell, the report sets out four alternatives concerning the wild Mustangs in the checkboard area of southwestern Wyoming. The Rock Springs Grazing Association (“RSGA”), which owns most of the private land in that area, has historically allowed a small number of Mustangs to graze on the private land. Their land and the BLM land is literally interspersed like a checkerboard every square mile, which is 640 acres. The RSGA revoked that permission in 2010, and sued the BLM in 2011 to remove the Mustangs. In 2013, a Consent Decree was agreed to by the RSGA and the BLM. It was opposed by the American Wild Horse Preservation Campaign and other wild Mustang advocacy groups who had intervened in the case but the Court granted it over their opposition. That Consent Decree literally lists the exact alternative that the BLM is advocating for at this time.

What can you do, short term?

You can write a comment to the BLM and tell them you want alternative A, which leaves things the way they are right now, with the Mustangs on the range. If you do, you should know a few important things:

  1. Do not send in a form letter. Your comment must be substantive. The BLM states on page 12, “During the public scoping period, 15,013 individuals, agencies, and groups submitted comments on wild horse management. The bulk of these commenters submitted identical form letters. The BLM identified 734 substantive comments.” In the table on that page showing the categories of comments, the BLM notes that “*Identical comments in form letters were counted as a single comment.” That means all those letters that were form letters with identical comments about grazing were boiled down to, according to the table, only 68 comments.
  1. Do not mention grazing. I know that Mustang advocates believe there are too many cattle and sheep grazing the range and that the Mustangs are being removed so more can be put there. However, making that comment to this report will not matter. On page 13, Table 1-2 shows “Issues not carried forward for detailed analysis.” The very first issue is “BLM has illegally elevated the interests of livestock grazing over the interests of wild horses, in violation of FLPMA’s multiple-use mandate and the Wild Free Roaming Horses and Burros Act.” The BLM dismisses that argument because “[T]he assertion is not an issue for land use planning analysis but is instead a legal conclusion.” The BLM further states that “[T]o the extent the comment refers to the Consent Decree, that settlement is consistent with applicable law,” and “[M]oreover, the planning criteria for this planning effort (Section 1.4) provide for compliancewith both FLPMA and the WFRHBA as well as other applicable law.” By citing these laws, the BLM is stating that it believes grazing is a legal issue already settled by law and so it won’t consider it any further.

What should you say if you do comment?  

Well, the BLM acknowledges on page 10 that “[T]he Consent Decree requires that BLM consider these actions, but does not require that the BLM implement any specific action. The BLM has met the requirements of the Consent Decree by considering each of these actions as elements of various alternatives in this EIS, though no single alternative considers all of them together.” The BLM is under no obligation to actually do any kind of removal right now. It has considered the options and that is all that is required by the Consent Decree. It is, therefore, acting in accordance with the law, and the BLM could choose to do nothing.

The BLM could choose to leave the Mustangs on the range (Alternative A) because we are in an extraordinary time that it did not foresee or address in January 2020 when it wrote this report. This country is now in the throes of the COVID19 pandemic. This is not the time to be spending money gathering wild Mustangs when there is no emergency reason to do so. For example, the Mustangs in that area are not in danger of starving or dying of thirst. Having gathers increases the likelihood of exposure of people to COVID19 who might not otherwise have that exposure. We are seeing non-essential businesses being closed and people being cautioned to remain socially distanced, sometimes even being ordered to stay at home, so that we can flatten the curve of this dangerous virus. Gathering these Mustangs is not essential. The BLM created the report and considered the alternatives as required under the Consent Decree. Therefore, it should defer any gather until at least 2021, when more will be known about the virus and hopefully, the curve will have flattened or a vaccine may even be available.

The Court continues to maintain jurisdiction over this matter, as stated in the Consent Decree, so an emergency motion might be able to make this argument about extenuating circumstances, depending on the Court’s schedule during the pandemic. But the BLM can take this action without the necessity of anyone filing a lawsuit to stop the roundup. This is a rare time when the BLM, RSGA, and wild Mustang advocates can actually come together and agree on something that serves the entire country. We should all agree about what is most important now, and the BLM should hold off on these roundups in light of this unique point in history. We can all revisit the issue next year, at a time that is hopefully not as fraught with uncertainty and danger.

Because I know I will be asked, yes, you may discuss this COVID19 argument in your comment to the BLM. But do not send a form letter or quote me directly. If this is what you truly believe, then speak from your heart. If we don’t do that now, when will we?

Where do we go from here?

AnnieI think that, in reality, we, Mustang advocates, need to realize that we need to put our energy, minds, hearts, and money together to find a viable solution for these Mustangs. Even if they stay on the range for now, the Consent Decree clearly shows that one day they will be removed. I know, I hear you. “But, Jo, they might not be gathered.” Yes, that’s true. The Consent Decree does not expressly require it. However, there comes a time when, as painful as it is, we have to look at what is going on and find a better solution. We owe it to the Mustangs. If we know they are going to be gathered, what can we do now to find them places to live, whether that is at established and new sanctuaries, adoptive homes, or other avenues that we come up with when we put our energy there.

Based on what I have learned by reading this document and what I understand as an attorney, I think that a good course of action is to submit a comment as outlined above and then start thinking of ways to help those Mustangs who will need a place to live. Maybe that’s one blessing from this pandemic. We have the time and the ability, thanks to the Internet, to find ways to help that we might not have had before. It won’t be easy. But we’re never promised that it will be. I know that it is an incredible blessing to simply be able to help the Mustangs any way I can and to be in their presence. They are truly special.

I wish I had better news, I really do. But for the Mustangs, for those relatives of my beloved Annie (the white mare pictured above), who is from Salt Wells, I vow to work on solutions so these magnificent horses can live in a way that allows them to remain true to themselves, even if they can’t remain on the range.

This blog post is for educational purposes only.  It does not create an attorney-client relationship.  Seek an attorney’s advice for your specific situation. 

COVID19 Legal Issues for the Horse Community

Click HERE for the free e-book.

Are you concerned about the legal issues surrounding COVID19 and your horse business or personal horses? I have written an e-book entitled “Horse People, Don’t Panic: COVID19 Legal Issues for the Horse Community.” It’s a free PDF download, and you are encouraged to share it in its entirety and let others know they can download it here.

You will learn about legal issues concerning liability, horse care if you get sick, equine estate planning, and contracts during these difficult times. This is an educational service of Windhorse Legal, PLLC, and does not constitute legal advice. It is my hope that this e-book can give you some information that helps you make informed decisions and helps you discuss these issues with an equine attorney in your state.

Feel free to contact me if you need legal services I can provide. Stay safe, stay healthy, stay compassionate.

Updating Your Estate Plan

Because of the COVID19 pandemic, many people are thinking about estate plans. You may think that once you get your estate plan drafted that you can make some changes just by handwriting in the changes and adding your signature to the change. Unfortunately, it’s not that easy.

There are specific procedures that have to be followed when you execute the documents in your estate plan. According to Massachusetts law, you need a certain number of witnesses and those witnesses must meet certain requirements. You must also have documents notarized. If you do not meet these requirements, then your will, trust, or incapacity documents could be considered invalid after you become incapacitated or die. All that hard work and money that you put into getting your documents drafted correctly by an attorney will be wasted. Even more importantly, you may not receive the care you wanted, and your beneficiaries may not receive the inheritance you left them.

In addition, making a change to your estate plan without having your estate planning attorney do it may have other ramifications. You may put in a term or make a change that is not recognized by Massachusetts. For example, an Irrevocable Medicaid Trust must have certain language in it or it may be successfully challenged by Medicaid, causing you to potentially lose your home to pay for nursing care costs. An estate planning attorney stays current on any state law that may effect estate plans. This allows her to draft documents that meet your needs and are legally binding.

If you haven’t updated your estate plan lately or want to make sure what you have is legally enforceable in Massachusetts, contact me, and I can make sure everything is done correctly.

Hunkering Down with the Horses

Dartagnan in the snowThe wind came rolling down the canyon, rustling the pines and then spreading out along the flattened area where the horses would normally be grazing. We had been told a big snow storm was coming, perhaps even a blizzard. I had put hay in the two barns, hoping to encourage the horses to seek shelter in either one. Instead, I watched as the horses moved in a way that looked like they had been assigned places in the pasture. As if choreographed by some voice I could not hear, they turned their hindquarters to the wind. Then, they dropped their heads low, almost reaching the ground. They stood close enough to be companionable but not in a way that any of them touched each other. Then, they waited. There was no anxiety among them. No frantic whinnying. No white-eyed fear. They knew, deep in their bones, what to do. Turn away from the storm, drop their heads to protect their eyes and ears and noses from the wind and snow, and wait it out. The horses knew the storm would end.

I have learned many things from horses during my 20 years of researching the horse-human relationship from within Indigenous worldview, and I will be sharing many of them on this blog. One of the most important things I have learned is to listen to the horses. Listening doesn’t mean just with the ears. It means listening to their entire being, to their herd, to the way they interact with life without projecting anything onto it. I have seen horses react in stressful situations such as evacuating from a wildfire. I have seen them need to be removed from fencing in which they have gotten tangled. I have seen them give birth, and I have seen them die. They have lessons they can teach us for this time of pandemic. The one I write about today is to be quiet, go inward, and know that the storm will end.

Mustang furMustangs, horses of the Land, were especially made to weather storms. Their tails have a very low set, which allows it to cover the space between their back legs, keeping them warm. They have smaller ears, meaning there is less surface area to allow heat to escape. They grow thick coats that catch snow and ice on the ends of their fur and keeps their skin warm and dry. These are the tools they have, and they use them successfully because where they live, there are no barns and rarely any trees under which to shelter.

The horses teach us how we can weather the COVID19 storm. The biggest thing they are teaching us, a lesson that many people still are having a hard time listening to, is to hunker down and wait it out. Not to panic but to do the things we know we need to do until the storm is over. The horses don’t see storms as a disruption to their lives. They recognize that storms are a part of life. Illness is a part of our lives. It always has been. We have become complacent due to modern medicine but COVID19 is a wake-up call. We now have the opportunity to adjust our lives when this storm passes so that we learn how to live with and survive the storms of illness.

We have the ability to weather this storm because we can stay in our homes until this storm is over. We can work from home or we can take this time and do the things we always say we are too busy to do. We can read, exercise, talk to friends and family via the Internet, write poetry, learn a musical instrument, and the list goes on. If we are essential and must work outside the home, then we can come back to it as the safe haven that it is. We have the tools to hunker down. We simply need to recognize them and use them.

When the horses hunkered down for that storm in their pasture, they didn’t know how bad it would be or when it would end. They simply knew that no matter how bad it got, it would end. While we know that this pandemic will become a severe storm, a blizzard, we also know that it will end. And when it does, we will be changed, individually and as a herd. What we do with that change is up to us. Hopefully, we will learn from the horses so that we will be prepared for other storms.

Horse Trusts

As the COVID19 pandemic spreads, I have seen people on social media ask how they can make sure their horse is taken care of in case they are unable to do so. We are facing a reality many of us have never wanted to actually face. But here we are. As someone works with fearful riders, I know that if we can face what we are afraid of, we can handle what most concerns us.

Many people say they have talked to a friend or they have written some informal agreement. For example, I know of a nurse who asked a good friend to take care of her horse is anything happens to her. There is a legal document that allows you to plan for your horse’s future in the event you are incapacitated or die. That document is called an horse trust, and you can have one for every animal in your family, not just your horse. Currently, every state and the District of Columbia had some form of legislation that allows for animal trusts. While an animal trust is a stand-alone document so it doesn’t need to be included in your estate plan, it is a good idea to let your estate planning attorney know that you have or want one.

Horses as Property Under the Law

Under the current law in every state, horses are considered property. This means someone cannot legally step in and take care of your horse if anything happens to you because they do not own your horse. For example, if you are in a coma and your riding buddy decides to move your horse to a less expensive boarding barn during that time so she can take over board payments for you, she could be charged with theft, no matter how good her intentions. She also could not access your checking account to make the regular monthly board payments needed to keep your horse where it’s currently boarded. She would literally be helpless to intervene if the barn owner decided he had to file legal papers to seize your horse and then sell it to pay for unpaid boarding costs if several months went by while you were incapacitated and unable to take care of things. We all would hope that a boarding barn owner would understand but sometimes that isn’t the case.

Horse Trusts

The way around this problem is to create a horse trust. The trust becomes active if you are incapacitated or when you die. Once you are no longer incapacitated, it is no longer active and returns control to you to handle matters concerning your horse.

A horse trust gives you the ability to provide funds for your horse’s care and to include specific instructions concerning that care. When you set up the trust, you set aside enough money in it to take care of your horse in the manner you prefer. How much money should you put into the trust? It depends on how long you want it to last. Write down a monthly budget that shows how much it costs to take care of your horse. Then decide how many months you want to provide care. For example, you may want to provide care for six months and then have a provision that if you have not regained capacity by then, you want your horse sold to someone or given to a specific person. If you want your horse taken care of after your death, you could put in enough money to care for him for several years. Make sure that the amount is reasonable, though. While horse trusts are generally not challenged in court, an argument could be made to reduce the amount you have left for care if one of your relatives or someone you left an inheritance to claim that the amount to care for your horse was excessive. Keep in mind that you can add money to the trust. So start with what you can afford and add more if that works best for your budget.

A horse trust also allows you to name a trustee, which is the person who will take care of your horse if something happens to you. You can be as specific or general as you want concerning that care. You can leave it up to the trustee, or you can put in specific provisions you want the trustee to follow. For instance, you can include directions concerning where your horse is stabled, how she should be fed, and additional instructions about the farrier and vet visits. You can even stipulate specific things such as how you want your horse to be blanketed and special treats she should get fed. It’s always a good idea to talk to the person you want to name as trustee before you set up the trust, to make sure she can take on that responsibility and is comfortable following your directions for your horse’s care. Depending on your state, there may be other people included in the trust, such as a vet who makes sure the horse is being taken care of properly.

attorney lawyer massachusetts online affordable convenient massachsuettsUse equine law as a tool to help you. When you decide you’re ready to create a horse trust, contact an equine or animal lawyer in your state so you can be sure the state’s legal requirements for the trust are met. If you are a Massachusetts resident, please feel free to contact me to discuss one. During the COVID19 epidemic, I am providing free horse trusts if you need me to draft or update an estate plan for you and at a discounted fee if you just need the trust. If you don’t live in Massachusetts, I may be able to refer to an attorney in your jurisdiction. Be sure to revisit the trust every year to make sure the funds you’ve set aside are still adequate and to make sure you don’t want to change any of the instructions for your horse’s care. Then enjoy the peace of mind knowing your horse will be taken care of if anything unexpected ever happens to you.

Stay safe, stay healthy, stay compassionate.

This blog post is for educational purposes only.  It does not create an attorney-client relationship.  Seek an attorney’s advice for your specific situation.