By: Karen Budd-Falen
On June 30, 2022, the New Mexico Cattle Growers Association (NMCGA), New Mexico Federal Lands Council (NMFLC) and Spur Lake Cattle Company (Spur Lake) signed a Joint Stipulation of Dismissal in the Gila cattle killing case because--we won!
There will be no more aerial livestock slaughters in the Gila by the Animal and Plant Health Inspection Service (APHIS) or the Forest Service (Forest Service) unless (1) the Forest Service and APHIS conduct completely new environmental analyses pursuant to the National Environmental Policy Act (NEPA) and the Wilderness Act, (2) local governments are given their rights of participation under NEPA and (3) the NMCGA, NMPLC, Spur Ranch and the public have at least 75 days’ prior notice to file comments or request a court injunction.
I am sure that the question some are is asking is why we consider this “a win” if the litigation didn’t permanently bar the federal agencies from shooting livestock anywhere at any time. For the answer, we need a little discussion of what litigation against the federal government entails and how federal court jurisdiction works.
First, the American justice system came from the Founding Fathers who had been used to the English Common Law from Britain. Under that system, it was assumed that “the king could do no wrong” and that a private party had to have a statute, rule, or regulation to sue the king. That system was adopted in this Country substituting “the king” for “the federal government.”
Based on that system, federal courts may hear a case against a federal agency only when the plaintiff can show that Congress has “waived sovereign immunity” for the federal agency to be sued. In the cattle slaughter case, that waiver is through the Administrative Procedures Act because we claimed that the federal agencies acted “arbitrarily, capriciously, and outside their statutory authority.” Specifically we alleged that (1) the Forest Service failed to conduct an adequate environmental review and allow public participation under NEPA, (2) APHIS failed to conduct an adequate review of whether flying a helicopter and shooting cattle in a wilderness violated the Wilderness Act, (3) there are no regulations allowing the shooting of livestock by the Forest Service, and (4) the Forest Service failed to consider the impacts of leaving dead livestock to attract Mexican wolves.
Second, under Article III of the U.S. Constitution the courts will only decide cases that involve a “live case or controversy.” That means the litigation must involve facts that show an allegedly illegal action will happen in the future or that the defendant owes monetary damages for a past action.
In this case, on February 1, 2022, the Forest Service requested APHIS “lethally remove” unbranded and unauthorized cattle from the Gila by chasing them down and shooting them from a helicopter. Word of that request wasn’t made public until February 4. The Forest Service request was to shoot the 200 head and leave the carcasses where the animals died. On February 10 and 11, an APHIS sharpshooter killed 65 head. Not all the kills were “clean” as there were animals with broken legs and others that were gut shot. Two of the animals died in the middle of the Gila River and others died in the flood plain. On February 11, APHIS concluded the killing for 2022 but left open their ability to conduct aerial gunning of the remaining livestock in February 2023.
The NMCGA, NMFLC and Spur Ranch filed suit on February 9, 2022 to stop the cattle slaughter. As part of the litigation, we learned that the killing was authorized by a Forest Service Decision Memo dated September 2020 that was not made public. In that memo, the Acting Forest Supervisor determined that gunning down cattle from a helicopter is not subject to notice and public comment.
In addition to filing a legal complaint, the NMCGA, NMPLC and Sarah Falen from this firm went on the offensive with public information campaign. Sarah made a “tic toc” video explaining the facts and asked the public to call the Forest Service and tell them to “stop the slaughter.” Her first video received over 500,000 views from people all over the world. The New Mexico Stockman released a “Stop the Slaughter” page on Facebook and other social media forums. Loren Patterson from NMCGA spent countless hours on the radio explaining the Forest Service actions, not just in rural New Mexico media, but also in Albuquerque media as well. All the messages contained the same request: call the Forest Service and tell them to “stop the slaughter.” Without exaggeration, the message when viral with voices from all over the country asking the Forest Service to cease its action.
Between the federal court litigation and the public outcry, on May 11, 2022, not only did the Forest Service stop the slaughter, they also withdrew the 2020 decision. That makes it impossible for the Forest Service to attempt cattle killing without going through an entirely new decision-making process. To ensure that such a decision wouldn’t be made like the 2020 decision without any public notice, the agency stipulated that it will provide 75 days’ prior notice.
The combination of aggressive federal court litigation and an equally aggressive media campaign forced the Forest Service to come to a full stop in slaughtering cattle is absolutely a win. Once that full stop happened, there was no longer a case or controversy to litigate so we agreed to dismiss the case. Chalk one up for the good guys—we won.
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