Webmaster's Comments: For those of you who are just getting acquainted with this issue, this web document is an electronic reproduction of a court action filed by The Fund for Animals and the Animal Protection Institute against the BLM over alleged improprieties by some adopters after receiving BLM animals. The complaint specifically argues that some horses are still inappropriately ending up in slaughter houses.

Willis Lamm

In 1987, after prolonged litigation concerning the Bureau of Land Management's ("BLM") implementation of the Congressionally mandated "adopt-a-horse" program -- whereby BLM places, and, after a one year probationary period, grants private adopters title to, wild horses and burros which are removed from public lands -- this Court issued an injunction designed to curtail abuses in the program. In particular, the Court ordered that:

The defendants are hereby enjoined and restrained from transferring the titles of wild free-roaming horses and burros to individuals who have, prior to the expiration of the one year 'probationary period,' . . . expressed to the Secretary an intent, upon the granting of title, to use said animals for commercial purposes.

Animal Protection Institute v. Hodel, 671 F. Supp. 695 (D. Nev. 1987) aff'd, 860 F.2d 920 (9th Cir. 1988).

As fully detailed in the accompanying memorandum, declarations and exhibits, BLM has continuously and systematically violated both the letter and purpose of this injunction for the past ten years. As a result, hundreds, if not thousands, of wild free-roaming horses and burros are continuing to be unnecessarily slaughtered every year. Moreover, as similarly detailed, it is clear that the BLM is institutionally incapable of reforming the continuing abuses in this program without additional judicial intervention.

Rather than return to the Court to seek a finding of contempt for each of many violations of the Court's injunction, by this motion, plaintiffs are requesting that the Court modify the injunction in several specific respects in order to ensure that BLM carries out its statutory responsibility to protect these animals. In particular, plaintiffs request that the Court require BLM to take modest administrative steps to affirmatively inquire into adopter's intentions before transferring title, and to discourage the adoption of wild horses and burros for slaughter. Given the startling, detailed evidence that plaintiffs have already obtained, these limited modifications to this Court's ongoing injunctive decree are a reasonable attempt to resolve this grave ongoing problem.

Plaintiffs request oral argument on this motion at the Court's earliest convenience. At this time plaintiffs do not believe that there is a need for a full evidentiary hearing, as the evidence plaintiffs have obtained already consists mostly of defendants' own documents. [2]

In order to put plaintiffs' motion in context, it is important to consider the statutory scheme, the prior proceedings which have occurred in this case, and the facts which give rise to the present motion.

A. The Wild Horses and Burros Act

Expressly finding that "wild free-roaming horses and burros are living symbols of the historic and pioneer spirit of the West," and are "an integral part of the natural system of the public lands" of the United States, Congress passed the Wild Horses and Burros Act in 1971 to protect "all unbranded and unclaimed horses and burros on public lands" from "capture, branding, harassment, or death." 16 U.S.C. $ 1331. Finding that these animals "have been cruelly captured and slain and their carcasses used in the production of pet food and fertilizer," Kleppe v. New Mexico, 426 U.S. 529, 536 (1976), citing S. Rep. No. 242, 92d Cong., 1st Sess. 1-2 (1971), reprinted in 1971 U.S.C.C.A.N. 2149, Congress enacted criminal provisions which prohibit any person from removing these animals from public land or converting them to private use, without authority from the Secretary of Interior, or from "process[ing] or permit[ting] to be processed into commercial products the remains of a wild free-roaming horse or burro." 16 U.S.C. $ 1338(a). By so doing, it was Congress' intent "to remove the possibility of monetary gain from exploitation of these animals." Animal Protection Institute v. Hodel, 860 F.2d 920, 926 (9th Cir. 1988), quoting S. Rep. No. 242 at 4, reprinted in 1971 U.S.C.C.A.N. at 2152.

In addition to protecting these animals from exploitation while on public lands, the Act also permits BLM to remove wild horses and burros from public lands in order to maintain "a thriving natural ecological balance" on the range. 16 U.S.C. $ 1333(b). It requires that these removed animals be handled in one of two ways -- either they are to be destroyed by the Secretary "in the most humane manner possible," or they are to be "adopted" pursuant to a statutorily defined "adopt-a-horse" program. Id.

For years, Congress has included in its annual appropriation to BLM a prohibition on the expenditure of federal funds to destroy these healthy animals. [3] Consequently, the adoption program is presently BLM's only management option when it decides to remove healthy horses and burros from the wild. Under the program, BLM provides animals to adopters for private maintenance and care for a one-year probationary period, 16 U.S.C. $ 1333(b)(2)(B), and then, if the adopter is a "qualified individual" and has provided "humane conditions, treatment and care for such animal or animals" for the one year, BLM grants the adopter title to the animal. 16 U.S.C. $ 1333(c).

According to the regulations and guidance implementing the adoption program, in order to participate an individual must execute both an adoption application ("Application") (Plaintiffs' Exhibit ("Pl. Exh.") 1), see 43 C.F.R.$ 4750.3-1, and, once approved for adoption, a Private Maintenance and Care Agreement for the animals they wish to adopt ("Agreement") (Pl. Exh. 2); see 43 C.F.R. $ 4750.4-1. Under the Application and Agreement, both of which the adopter signs under express penalty for making false statements, see 18 U.S.C. $ 1001, adopters must provide information concerning the facilities available to maintain the adopted animals, and must certify that they recognize that certain acts are prohibited during the probationary period, including abusing the animals or "[s]elling or attempting to sell" them. Nowhere, however, does either the Application or the Agreement inquire into the adopter's intentions once he or she receives title.

Once title is transferred, the animals are no longer protected by the statute, except for one limitation. Under Section 1333(d), even after title is transferred, "no wild free-roaming horse or burro or its remains may be sold or transferred for consideration for processing into commercial products." 16 U.S.C. $ 1333(d). Despite this restriction, BLM has issued regulations concerning the receipt of these animals by slaughterhouses. 43 C.F.R. ' 9265.0-3(14) and (15). Under these regulations, a slaughterhouse may slaughter unlimited numbers of wild horses and burros as long as the animals are accompanied by title certificates which the slaughterhouse maintains for one year. Id. [4]

Finally, although the statute limits to four the number of animals to which an adopter can receive title each year, 16 U.S.C. $ 1333(c), BLM regulations permit mass adoptions. 43 C.F.R. $ 4750.3-3. In addition, by collecting powers of attorney from a group of individuals, one adopter can also adopt a large group of animals. Id. at $ 4750.3-3(c).

B. Prior Proceedings

1. Initial District Court Proceedings

Plaintiffs brought this suit in 1985, seeking injunctive relief concerning BLM's implementation of the Wild Horses and Burros Act. Plaintiffs claimed BLM was rounding up and adopting out horses and burros in an inhumane manner, and was facilitating the commercial exploitation of these animals.

In the summer of 1986, the parties stipulated to two critical facts. First, BLM acknowledged that adopted animals do routinely end up in commercial slaughterhouses. Second, BLM admitted that it knew that some of these animals would be slaughtered before transferring title to adopters. Based on these undisputed facts, the parties sought summary judgment.

This Court issued its opinion in 1987. 671 F. Supp. 695. According to the Court, "[i]t was clearly congressional intent that the [statute be implemented] in such a way that the wild horses and burros are protected from commercial exploitation and slaughter." Id. at 697. Thus, the Court explained, the one year probationary period "is designed to ensure that the BLM will have a reasonable time (one year) to satisfy itself that the prospective adopter will treat the animals in a humane manner and not exploit them." Id. at 697 (emphasis added). Consequently, "if during that period, the BLM becomes aware . . . that the only purpose for the adoption is to enable the adopter to exploit the animals for a commercial purpose, the transfer of title should not occur." Id. at 697. While recognizing that, under the statute, BLM may itself destroy excess animals, the Court made it clear that BLM "may not delegate or transfer this obligation to others through the placement of horses with unqualified persons in the adoption program." Id. at 698. Based on this reasoning, the Court issued a permanent injunction as follows:

The defendants are hereby enjoined and restrained from transferring the titles of wild free-roaming horses and burros to individuals who have, prior to the expiration of the one year 'probationary period,' . . . expressed to the Secretary an intent, upon the granting of title, to use said animals for commercial purposes.

671 F. Supp. at 698.

2. The Ninth Circuit Ruling

BLM appealed this Court's ruling to the Ninth Circuit. In its brief, the agency argued that nothing in the Act or its legislative history indicates a Congressional intent to prohibit from participation in the adoption program those individuals who intend to sell animals to slaughter once they obtain title. Brief of Appellants at 25 (Pl. Exh. 3 (relevant excerpts)). BLM went on to argue:

On the contrary, it seems perfectly clear that this possibility of commercial use was the 'incentive' that Congress envisioned would spur the adoption program and thereby remedy the administrative problem of managing the thousands of excess horses removed from the range each year.

Id. (emphasis added).

The Ninth Circuit soundly rejected this reasoning. 860 F.2d at 920. Noting that Congress' intent was to "'to remove the possibility of monetary gain from exploitation of these animals,'" the court found that the "one-year wait for title transfer [was designed] to act as a probationary period to weed out unfit adopters." Id. at 926-27 (other citations omitted) (emphasis added). Consequently, the court concluded that:

the Secretary's disregard for the announced future intentions of adopters undercuts Congress' desire to insure humane treatment for wild horses and burros. In fact, it renders the adoption process a farce, for the one-year requirement of humane treatment and care serves no purpose if on the day the one-year period expires, the adopter can proceed to the slaughterhouse with his horses or burros.

Id. at 927 (emphasis added).

3. Additional Proceedings In This Court

While the Ninth Circuit appeal was pending, plaintiffs returned to this Court to enforce the injunction. A&B Horse Farms ("A&B") had adopted hundreds of horses, but prior to passage of title plaintiff The Fund For Animals informed BLM by telegram that A&B planned to sell the animals for slaughter upon obtaining title. This Court declined to find that BLM willfully violated the injunction, because title to the horses had never been transferred. However, the Court did find that BLM's "failure to make reasonable inquiry as to where these horses are going to be placed" constituted both "negligence" and "gross neglect of responsibilities." Transcript of March 21, 1989 hearing at 6, 8 (Pl. Exh. 4 (relevant excerpts)). Moreover, the Court stated that "it does not serve the Bureau well to attempt to devise any schemes or plans for attempting to circumvent the Court's order." Id. at 9 (emphasis added).

Plaintiffs returned to the Court again in May, 1989. In late 1988, the General Accounting Office had learned through an ongoing audit, and had told BLM, that Earl Shryock, who was due shortly to receive title to some 150 wild horses, had previously sold adopted animals to slaughter immediately upon obtaining title. The Department of Interior wrote to Shryock, enclosing copies of this Court's and the Ninth Circuit's decisions, and asked him to state his intentions regarding the horses. Mr. Shryock sent a letter in response stating that he did not intend to use the animals for commercial purposes. Title to the horses was transferred, and they were slaughtered.

The Court again declined to find a willful violation of its injunction, because BLM had received Shryock's letter, and had been advised by counsel that this was sufficient. Order of October 12, 1990 (Pl. Exh. 5). Nonetheless, the Court made quite clear that the injunction requires that not only may BLM not transfer title when it knows an adopter's intentions are for commercial use, but also when BLM "reasonably should have known . . . . " Transcript of August 10, 1989 hearing at 29 (Pl. Exh. 6 (relevant excerpts)). In other words, the Court explained, "the order did not contemplate that the Bureau of Land Management close its eyes," or that BLM employees could avoid their responsibilities by "intentionally putting their head in the sand." Id. at 32, 34.

At neither of these post-judgment proceedings did plaintiffs seek a modification of the Court's injunction, but, at the 1990 hearing, the Court itself indicated a modification might be necessary: "[i]n retrospect, perhaps I should have crafted an order somewhat broader than what I did." Transcript of July 30, 1990 hearing at 56. (Pl . Exh. 7 (relevant excerpts)). Noting that the objective of the original Order was to ensure "that these animals that were to be adopted were well cared for," the Court expressed frustration that it was "facing an end result that was certainly what this order was designed to prevent." Id. (emphasis added).

C. Ongoing Violations Of The Act and This Court's Injunction

This Court's opinion and subsequent admonishments notwithstanding, BLM has continued to permit individuals to adopt wild free-ranging horses and burros under circumstances in which the agency knows -- or, in this Court's words, "should have known" absent putting "their head in the sand," Pl. Exh. 6, at 32 -- that, upon obtaining title, the adopter plans to sell them for slaughter. Contrary to this Court's instructions and intent, BLM has continued to do precisely what the Court prohibited -- i.e., "devis[ing] schemes [and] plans for attempting to circumvent the Court's order." Pl. Exh. 4 at 9. Indeed, according to a 1996 Department of Justice memorandum ("DOJ Memorandum"), the BLM has:

its own version of "don't ask, don't tell" -- that is, do not ask the follow up questions which might elicit information that would preclude transfer of title. So while [two BLM employees] freely admit that everyone "knows" as a general proposition that most of the horses adopted out go to slaughter eventually, the agency tries to avoid finding out that this will happen in any given adoption.

April 22, 1996 Memorandum from Charles Brooks, Department of Justice attorney, to James DeAtley, Assistant United States Attorney ("DOJ Mem.") (Pl. Exh. 8) at 5 (emphasis added).

This DOJ Memorandum resulted from an investigation by the United States Attorney's Office for the Western District of Texas into criminal violations by a BLM compliance officer, Mr. Don Galloway, who had arranged an adoption for slaughter. See Application and Affidavit of Steven M. Sederwall for Seizure Warrant, Dec. 2, 1994 at Par. 8 (Pl. Exh. 9). However, the memorandum also discusses what the Department of Justice describes as "the widespread irregularities in the management of the horse adoption program which have opened up as a result of looking into this case." Pl. Exh. 8 at 2.

According to the Memorandum, "BLM has an unstated policy of not looking too closely at proposed adoptions." Id. at 5 (emphasis added). As the DOJ Memorandum further explains:

Typical is an Oklahoma adoption . . . . The probationary periodinspector wrote: "[the adopter] stated that the horse was mean and [she] would be very scared to have it around kids or people with dark skin. (She) stated that [she] was going to sell this horse at the sale barn when she got title. I explained to (her) that the horse should not go to the killer (plants, i.e. the slaughterhouse). She replied that she understood." This adopter was approved for title transfer.

Id.

Given these ongoing problems, the DOJ Memorandum concludes that "[t]he Adopt-a-Horse program is clearly seriously flawed." Id. Referring to this Court's ongoing injunction, the Memorandum finds that although, under this Court's ruling, "the Secretary may not delegate or transfer th[e] obligation [to humanely destroy excess animals] to others through the placement of horses with unqualified persons in the adoption program[,] [t]his is precisely what is happening." Id. at 6 (emphasis added).

Moreover, the DOJ Memorandum is far from the only evidence plaintiffs have obtained that BLM and its employees continue to violate this Court's injunction by, in the Court's words, "fail[ing] to make reasonable inquiry as to where these horses are going to be placed." Pl. Exh. 4 at 6. In fact, Jerome Needy, a former BLM law enforcement officer who spent over twenty years investigating compliance with the Act, has sworn that he is aware of over 1,000 animals who have been adopted under these circumstances. Declaration of Jerome R. Needy ("Needy Decl."), Par. 2 (Pl. Exh. 10).

BLM has itself acknowledged these ongoing violations. For example, in June of 1993, the BLM chief of law enforcement, Walter Johnson, wrote a Memorandum to the Department of Interior's Deputy Assistant Inspector General outlining investigations into BLM employees "[p]romoting and organizing group adoptions for the intended purposes of selling the wild horses to slaughter plants . . . once the wild horse has been titled." Memorandum of June 18, 1993, at 3 (Pl. Exh. 11). He reports that "[i]n many of the adoptions and group adoptions reviewed, personnel from BLM apparently promoted the adoption of horses for commercial gain." Id. at 4 (emphasis added).

Indeed, even at as high a level as the State Directorship of BLM, it is apparent that BLM consciously and studiously avoids finding out adopters' intentions. According to a memorandum from the New Mexico state director, "[t]he sale of horses after titling has been a common practice in this region of the country." Memorandum of January 5, 1994 (Pl. Exh. 12). He expresses uncertainty as to whether title may legally be transferred to individuals who have made statements "to law enforcement personnel that the various adopters have intent to sell the animals once title is received." Id. Thus, even where an adopter expresses an intent to sell the animal, no further inquiry is necessarily made, and title is transferred.

Moreover, while these general statements of the Justice Department and BLM amply demonstrate that the agency has continued to violate the letter and spirit of the Court's injunction, plaintiffs have already documented several specific examples of BLM's ongoing violations. For example, in the Spring of 1993 Glen Custer sought to take title to twenty-one animals he held for a year. He told a BLM official that he would be selling a number of them, explaining how much money they were worth per pound, and stating that "the French like horse meat." September 29, 1993 Incident Report, at 2 (discussing March 4, 1993 compliance check) (Pl. Exh. 13). As a result, BLM officials initially recommended repossessing the horses. Memorandum of Mar. 18, 1993 (Pl. Exh. 14).

Six months later, however, Mr. Custer wrote to his Senator for assistance in obtaining title. September 8, 1993 letter to Senator Don Nickels (Pl. Exh. 15). The Senator's office contacted BLM, which responded that it plans to "move forward with the final disposition of the horses in question." November 8, 1993 letter from Jim Baca, BLM Director, to Senator Nickels (Pl. Exh. 16). In November 1993 title was transferred (Pl. Exh. 17) (representative sample of titles)), and, as of September 1994, none of these horses remained in Mr. Custer's possession. Memorandum of September 28, 1994 (Pl. Exh. 18) at 2.

There are certainly many more examples of this "unstated policy of not looking too closely at proposed adoptions." DOJ Memorandum at 5 (Pl. Exh. 8). Without having conducted any discovery, plaintiffs can only scratch the surface of these ongoing violations. However, several additional group adoptions which likely violated the Court's order include (1) the Choctaw Nation's adoption of over 100 horses, of which one BLM official said: "it doesn't take a rocket scientist to figure out what they were going to do" with them (June 21, 1993 Interview Report of Steve Henke (Pl. Exh. 19) at 3); (2) Warren Custer's 1991 adoption of 87 horses, all of which were sold within several years of obtaining title; and (3) Curtis Schultz's 1992 adoption of 48 horse, over half of which were sold within one year. September 28, 1994 Memorandum at 2 (Pl. Exh. 18). [5]

As a result of BLM's "don't ask, don't tell" policy, and these ongoing violations of the Court's order, these "living symbols" of the West continue to be commercially slaughtered. BLM's own recent, unscientific estimate of slaughter rates concluded that over 300 of these animals are commercially slaughtered each year. Wild Horse and Burro Adoption Program Analysis Team Report (April 18, 1997) ("Team Report") (Pl. Exh. 20) at 8. However, given that BLM admits that "many slaughterhouses [do] not have full records," id. at 9, this number is a woeful underestimate. Although plaintiffs cannot provide a precise number, based on the number of horses saved from slaughter in the Phoenix, Arizona area in recent years, it is more than a thousand rather than a few hundred. Declaration of Karen Sussman ("Sussman Decl.") (Pl. Exh. 21) at Par. 4. [6]

Finally, numerous documents indicate that BLM is institutionally incapable of reforming the adoption program on its own. As explained by Alia Ludlum, the Assistant United States Attorney ("AUSA") working on the Galloway case: "I believe that my investigation was obstructed all along by persons within the BLM because they did not want to be embarrassed." January 6, 1997 Memorandum at 3 (emphasis added) (Pl. Exh. 23). Ms. Ludlum also wrote that "BLM as an organization and persons that were at the meeting [concerning the Galloway case] cannot be trusted," and "I cannot deal with an agency that will only tell me what they want me to hear." February 23, 1995 e-mail (Pl. Exh. 24).

In late 1995, AUSA Ludlum further reported that "something smells fishy" in the ongoing BLM investigation of Galloway. December 13, 1995 e-mail (Pl. Exh. 25). Explaining her concern that the Department of Justice and the Department of Interior had worked out an arrangement that would avoid prosecuting violations of this Court's injunction and the Act, she wrote:

So, as you can tell, something is awfully wrong with this picture. I am sure that "stuff" is happening in Washington concerning my case that I surely don't know and can never hope to know. I just don't understand how 36 horses could cause such overwhelming governmental distress unless there are lots of problems and we are not supposed to find out what the problems are or to solve those problems. I don't like what is happening.

Id. at 2 (emphasis added).

After the DOJ Memorandum was distributed, the United States Attorney's office declined to prosecute the Galloway case. According to Ms. Ludlum, "It is obvious that Charles [Brooks, author of the DOJ Memorandum] and/or his bosses do not want the case prosecuted period and will come up with any excuses to make it go away." April 25, 1996 e-mail (Pl. Exh. 26). [7]

D. Plaintiffs' Attempts To Resolve This Matter Without Further Litigation Given these violations of this Court's injunction and its underlying purpose, and the ongoing problems in BLM's implementation of this program, on March 11, 1997, plaintiff The Fund for Animals and the International Society for the Protection of Mustangs and Burros sent BLM a letter expressing their concerns. March 11, 1997 Letter (Pl. Exh. 29). They requested that BLM agree to certain modifications of this Court's injunction, and that the parties would then return to this Court together, with stipulated modifications -- for which they would together seek this Court's approval -- that would meaningfully address the ongoing problems.

In May, 1997, plaintiffs and BLM met to discuss the issues raised in this letter. BLM provided plaintiffs with two recent internal reports discussing the adoption program. Wild Horse and Burro Evaluation (Jan. 13, 1997) (Pl. Exh. 30); Team Report (Pl . Exh. 20). Although a few of the recommendations raised in these reports touch on plaintiffs' concerns, none of them address the core issue of BLM's "don't ask, don't tell" policy.

Although plaintiffs had requested a substantive response to their March 11 letter within thirty days, they have yet to receive one. BLM has, however, indicated that it is not willing to voluntarily return to this Court with plaintiffs to seek stipulated modifications to the injunction. Therefore, plaintiffs have found it necessary to file this motion.

As the Supreme Court has long recognized, "modification of the terms of an injunctive decree [is appropriate] if the circumstances . . . at the time of its issuance have changed, or new ones have since arisen." Systems Fed. No. 91 Ry. Employees Dep't v. Wright, 364 U.S. 642, 647 (1961). Thus, a "district court, of course, has continuing power to modify or vacate its decree." Ellis v. City of La Mesa, 990 F.2d 1518, 1531 (9th Cir. 1993), cert. denied, 513 U.S. 925 (1994). Moreover, "[b]ecause permanent injunctive relief" -- which was granted in this case -- "controls future conduct, federal courts must be sensitive to the need for modification when circumstances change," particularly "when an injunction involves changing conduct and facts not predicted at the time the injunction was issued." Clark v. Coye, 60 F.3d 600, 604 (9th Cir. 1995).

This is such a case. As this Court recognized in 1990, the injunction was supposed to accomplish a particular objective, to ensure "that these animals that were to be adopted were well cared for . . . ." Transcript of July 30, 1990 hearing at 56 (Pl. Exh. 7). Yet, many are not in fact being well cared for. To the contrary, despite this Court's injunction, the Ninth Circuit's affirmance, and this Court's admonishments on both occasions that plaintiffs previously returned to this Court, BLM and its employees continue to operate an adopt-a-horse program which is, as characterized by the Court of Appeals, largely "a farce." 86 F.2d at 927.

There is no great mystery in the underlying reason for BLM's continuing violations of the injunction. As explained in the DOJ Memorandum, due to various pressures -- many of which are self-imposed -- BLM is "[f]aced with the need to remove 10,000 horses a year from public lands." DOJ Mem. at 5 (Pl. Exh. 8). Given Congress' prohibition on BLM slaughtering the animals, BLM must find individuals to take title to them. Although there is in fact a large demand for legitimate adoption, Sussman Decl. Par. 5 (Pl. Exh. 21), finding legitimate adopters requires some effort on BLM's part. Rather than expend that effort, BLM has opted in many cases to transfer title to individuals who simply do not want to keep and care for the animals.

As a result, BLM has refused to find out adopters' intentions when the need for inquiry was obvious, has transferred title even when it knew an adopter's intentions were illegitimate -- a blatant violation of this Court's injunction -- and, according to the government's own documents, has taken extraordinary pains to avoid prosecuting violators within and without BLM. See Martha Mendoza, Probe of Wild Horse Slaughter Derailed, Los Angeles Times, Mar. 23, 1997 (Pl. Exh. 31).

Plaintiffs could continue to pursue violations of the existing injunction in individual contempt proceedings in this Court. However, plaintiffs are not returning to this Court at this time to seek contempt against the Secretary or other BLM employees. Instead, plaintiffs seek specific modifications to this Court's injunction that will remedy this problem in the future, and will put an end to BLM's "don't ask, don't tell" policy. If the Court adopts the specific changes discussed below, plaintiffs believe that far fewer animals will end up slaughtered, and BLM will be more fully carrying out its statutory duty to protect these animals.

I. The Injunction Should Be Modified To Require BLM To Timely, Affirmatively, and Explicitly Inquire Into Adopters' Intentions.

When this Court fashioned its original injunction, BLM had admitted that it was transferring title even when it "knew [of] the transferees' intent to exploit the animals for commercial purposes." 671 F. Supp. at 698. Given this admission, the Court did not have to determine whether BLM had any duty to inquire into what adopters plan to do with their animals after receiving title. Thus, as the Ninth Circuit noted, the injunction did "not address whether the Secretary has an affirmative duty to ascertain an adopter's intent." 860 F.2d at 928.

Nonetheless, by limiting the injunction to situations in which BLM already has knowledge of an adopter's ill-intent without making an inquiry, this Court certainly did not intend, ten years later, for BLM to have institutionalized a "don't ask, don't tell" policy -- a policy which permits BLM to transfer title to adopters with ill-intentions simply by studiously avoiding inquiry into the adopter's intent, even where the most minimal effort would expose these adopters. To the contrary, as this Court noted in its original decision, in order to determine whether an adopter is a "qualified individual" as defined in the statute, 16 U.S.C. '1333(c), it is obviously important to know whether the adopter "is someone who will care for the animals, [rather than] someone who will exploit or destroy them." 671 F. Supp. at 697. Much of the ongoing abuse in the adopt-a-horse program stems from BLM's unwillingness to acquire this knowledge by making even the most obvious, rudimentary inquiry into an adopter's post-titling intentions.

In order to squarely address BLM's "don't ask, don't tell" policy, then, plaintiffs seek a modification of this Court's injunction to require that BLM in fact inquire into an adopter's intentions. The agency clearly has the legal authority to make such an inquiry in order to determine whether prospective adopters should be allowed to obtain title from the government. Indeed, BLM's own internal guidance requires that for group adoptions, if the adopter is "employed by or engaged in a livestock auction, rodeo, or slaughterhouse" the adopter must "state in writing the reasons for adopting the animals." BLM Guidance at I-7 (Pl. Exh. 32). BLM should simply apply this requirement to all adopters, not just those employed by rodeos or slaughterhouses.

This would not be an administrative burden. Under BLM's current procedures an adopter must sign both an Application and a Private Maintenance and Care Agreement, both of which contain limitations on the adopter's use of the adopted animal during the one year probationary period. Pl. Exhs. 1 and 2. The adopter signs these documents under penalty of prosecution for false statements under 18 U.S.C. $ 1001. All BLM would need to do to make specific inquiry into adopters' intentions would be to add the following, or equivalent language, to both the Application and Agreement in a conspicuous location: "I do not intend to sell the animal(s) I am adopting upon obtaining title, and I will not seek to obtain title to any animal which, at the time I apply for title, I intend to sell."

Adding this explicit language to the Application and Private Maintenance and Care Agreement would plainly be consistent with the objectives of this Court's original injunction, and would serve several vital purposes. First, it would serve as a significant deterrent to continuing abuse in this program. If adopters are forced to sign a statement regarding their intention, under the threat of prosecution for false statements, these exploitative adopters are significantly less likely to participate in this program in the first place. Similarly, BLM employees -- including those acting without official agency authority or knowledge -- will no longer be able to convince adopters that their adopted animals will be available for sale after title is transferred.

Second, the statement would serve BLM as useful benchmark for prosecution of violators. Although the Ninth Circuit said the adopt-a-horse program is "a farce" if "on the day the one-year period expires, the adopter can proceed to the slaughterhouse with his horse or burros," 860 F.2d at 927, under BLM's current policy, in which the agency studiously avoids inquiring into an adopter's intentions, it is perfectly acceptable for an adopter to do just that -- i.e., sell the titled animals for slaughter immediately after obtaining title. In fact, it is plaintiffs' understanding that in the entire history of this program, while thousands of titled animals have ended up in slaughterhouses, not one adopter has ever been prosecuted as a result. [8]

Making adopters affirmatively attest to their intentions would significantly alleviate this problem. An adopter who immediately sells titled animals could not claim that he thought there were no post-titling limitations on use of the animals, or that BLM employees told him that he could do what he wanted after obtaining title. While he could claim that his intentions changed upon obtaining title -- e.g., because of an abrupt change in financial circumstances or the like -- this would be far more difficult for adopters who sell horses for slaughter shortly after obtaining title. As this Court, contemplating just such an affirmative inquiry, explained at the hearing on plaintiffs' summary judgment motion, should adopters continue to sell their animals immediately to slaughter even with the attestation included, such individuals could be prosecuted "for perjur[ing] themselves when they sign the affidavit . . . ." Transcript of May 22, 1987 hearing (Pl. Exh. 33 (relevant excerpts)) at 15. The threat of prosecution should itself become a significant deterrent. [9]

Third, affirmatively inquiring into adopters' intentions would more fully serve the purposes of the adopt-a-horse program than BLM's implementation of the original decree, which has completely undermined those purposes. Congress could have treated wild horses and burros like any other excess government property, permitting private parties to simply purchase them and immediately obtain title. Under such a program, adopters clearly could have immediately resold their newly titled animals.

But that is not the way the statute is designed. Instead, it was "'the expressed intent of the committee [considering the legislation] to remove the possibility of monetary gain from exploitation of these animals.'" 860 F.2d at 926. Thus, as the Ninth Circuit recognized, Congress required that BLM determine "that adopters are both 'qualified individuals' and persons who 'can assure humane treatment and care.'" 860 F.2d at 926, quoting 16 U.S.C. $ 1333(b)(2)(B). To ensure that BLM has an opportunity to be satisfied that the adopter meets these eligibility criteria, the statute requires that the adopter provide this humane treatment and care for a full year before BLM may transfer title. Id. at 1333(c). Similarly, Congress required a written determination from the Secretary to permit an individual to adopt multiple animals, in order to ensure the "adopting party is capable ofinspector wrote:

"[the adopter] stated that the horse was mean and [she] would be very scared to have it around kids or people with dark skin. (She) stated that [she] was going to sell this horse at the sale barn when she got title. I explained to (her) that the horse should not go to the killer (plants, i.e. the slaughterhouse). She replied that she understood." This adopter was approved for title transfer.

Id. <\P>

Given these ongoing problems, the DOJ Memorandum concludes that "[t]he Adopt-a-Horse program is clearly seriously flawed." Id. Referring to this Court's ongoing injunction, the Memorandum finds that although, under this Court's ruling, "the Secretary may not delegate or transfer th[e] obligation [to humanely destroy excess animals] to others through the placement of horses with unqualified persons in the adoption program[,] [t]his is precisely what is happening." Id. at 6 (emphasis added).

Moreover, the DOJ Memorandum is far from the only evidence plaintiffs have obtained that BLM and its employees continue to violate this Court's injunction by, in the Court's words, "fail[ing] to make reasonable inquiry as to where these horses are going to be placed." Pl. Exh. 4 at 6. In fact, Jerome Needy, a former BLM law enforcement officer who spent over twenty years investigating compliance with the Act, has sworn that he is aware of over 1,000 animals who have been adopted under these circumstances. Declaration of Jerome R. Needy ("Needy Decl."), Par. 2 (Pl. Exh. 10).

BLM has itself acknowledged these ongoing violations. For example, in June of 1993, the BLM chief of law enforcement, Walter Johnson, wrote a Memorandum to the Department of Interior's Deputy Assistant Inspector General outlining investigations into BLM employees "[p]romoting and organizing group adoptions for the intended purposes of selling the wild horses to slaughter plants . . . once the wild horse has been titled." Memorandum of June 18, 1993, at 3 (Pl. Exh. 11). He reports that "[i]n many of the adoptions and group adoptions reviewed, personnel from BLM apparently promoted the adoption of horses for commercial gain." Id. at 4 (emphasis added).

Indeed, even at as high a level as the State Directorship of BLM, it is apparent that BLM consciously and studiously avoids finding out adopters' intentions. According to a memorandum from the New Mexico state director, "[t]he sale of horses after titling has been a common practice in this region of the country." Memorandum of January 5, 1994 (Pl. Exh. 12). He expresses uncertainty as to whether title may legally be transferred to individuals who have made statements "to law enforcement personnel that the various adopters have intent to sell the animals once title is received." Id. Thus, even where an adopter expresses an intent to sell the animal, no further inquiry is necessarily made, and title is transferred.

Moreover, while these general statements of the Justice Department and BLM amply demonstrate that the agency has continued to violate the letter and spirit of the Court's injunction, plaintiffs have already documented several specific examples of BLM's ongoing violations. For example, in the Spring of 1993 Glen Custer sought to take title to twenty-one animals he held for a year. He told a BLM official that he would be selling a number of them, explaining how much money they were worth per pound, and stating that "the French like horse meat." September 29, 1993 Incident Report, at 2 (discussing March 4, 1993 compliance check) (Pl. Exh. 13). As a result, BLM officials initially recommended repossessing the horses. Memorandum of Mar. 18, 1993 (Pl. Exh. 14).

Six months later, however, Mr. Custer wrote to his Senator for assistance in obtaining title. September 8, 1993 letter to Senator Don Nickels (Pl. Exh. 15). The Senator's office contacted BLM, which responded that it plans to "move forward with the final disposition of the horses in question." November 8, 1993 letter from Jim Baca, BLM Director, to Senator Nickels (Pl. Exh. 16). In November 1993 title was transferred (Pl. Exh. 17) (representative sample of titles)), and, as of September 1994, none of these horses remained in Mr. Custer's possession. Memorandum of September 28, 1994 (Pl. Exh. 18) at 2.

There are certainly many more examples of this "unstated policy of not looking too closely at proposed adoptions." DOJ Memorandum at 5 (Pl. Exh. 8). Without having conducted any discovery, plaintiffs can only scratch the surface of these ongoing violations. However, several additional group adoptions which likely violated the Court's order include (1) the Choctaw Nation's adoption of over 100 horses, of which one BLM official said: "it doesn't take a rocket scientist to figure out what they were going to do" with them (June 21, 1993 Interview Report of Steve Henke (Pl. Exh. 19) at 3); (2) Warren Custer's 1991 adoption of 87 horses, all of which were sold within several years of obtaining title; and (3) Curtis Schultz's 1992 adoption of 48 horse, over half of which were sold within one year. September 28, 1994 Memorandum at 2 (Pl. Exh. 18). [5]

As a result of BLM's "don't ask, don't tell" policy, and these ongoing violations of the Court's order, these "living symbols" of the West continue to be commercially slaughtered. BLM's own recent, unscientific estimate of slaughter rates concluded that over 300 of these animals are commercially slaughtered each year. Wild Horse and Burro Adoption Program Analysis Team Report (April 18, 1997) ("Team Report") (Pl. Exh. 20) at 8. However, given that BLM admits that "many slaughterhouses [do] not have full records," id. at 9, this number is a woeful underestimate. Although plaintiffs cannot provide a precise number, based on the number of horses saved from slaughter in the Phoenix, Arizona area in recent years, it is more than a thousand rather than a few hundred. Declaration of Karen Sussman ("Sussman Decl.") (Pl. Exh. 21) at Par. 4. [6]

Finally, numerous documents indicate that BLM is institutionally incapable of reforming the adoption program on its own. As explained by Alia Ludlum, the Assistant United States Attorney ("AUSA") working on the Galloway case: "I believe that my investigation was obstructed all along by persons within the BLM because they did not want to be embarrassed." January 6, 1997 Memorandum at 3 (emphasis added) (Pl. Exh. 23). Ms. Ludlum also wrote that "BLM as an organization and persons that were at the meeting [concerning the Galloway case] cannot be trusted," and "I cannot deal with an agency that will only tell me what they want me to hear." February 23, 1995 e-mail (Pl. Exh. 24).

In late 1995, AUSA Ludlum further reported that "something smells fishy" in the ongoing BLM investigation of Galloway. December 13, 1995 e-mail (Pl. Exh. 25). Explaining her concern that the Department of Justice and the Department of Interior had worked out an arrangement that would avoid prosecuting violations of this Court's injunction and the Act, she wrote:

So, as you can tell, something is awfully wrong with this picture. I am sure that "stuff" is happening in Washington concerning my case that I surely don't know and can never hope to know. I just don't understand how 36 horses could cause such overwhelming governmental distress unless there are lots of problems and we are not supposed to find out what the problems are or to solve those problems. I don't like what is happening.

Id. at 2 (emphasis added).

After the DOJ Memorandum was distributed, the United States Attorney's office declined to prosecute the Galloway case. According to Ms. Ludlum, "It is obvious that Charles [Brooks, author of the DOJ Memorandum] and/or his bosses do not want the case prosecuted period and will come up with any excuses to make it go away." April 25, 1996 e-mail (Pl. Exh. 26). [7]

D. Plaintiffs' Attempts To Resolve This Matter Without Further Litigation

Given these violations of this Court's injunction and its underlying purpose, and the ongoing problems in BLM's implementation of this program, on March 11, 1997, plaintiff The Fund for Animals and the International Society for the Protection of Mustangs and Burros sent BLM a letter expressing their concerns. March 11, 1997 Letter (Pl. Exh. 29). They requested that BLM agree to certain modifications of this Court's injunction, and that the parties would then return to this Court together, with stipulated modifications -- for which they would together seek this Court's approval -- that would meaningfully address the ongoing problems.

In May, 1997, plaintiffs and BLM met to discuss the issues raised in this letter. BLM provided plaintiffs with two recent internal reports discussing the adoption program. Wild Horse and Burro Evaluation (Jan. 13, 1997) (Pl. Exh. 30); Team Report (Pl . Exh. 20). Although a few of the recommendations raised in these reports touch on plaintiffs' concerns, none of them address the core issue of BLM's "don't ask, don't tell" policy.

Although plaintiffs had requested a substantive response to their March 11 letter within thirty days, they have yet to receive one. BLM has, however, indicated that it is not willing to voluntarily return to this Court with plaintiffs to seek stipulated modifications to the injunction. Therefore, plaintiffs have found it necessary to file this motion

As the Supreme Court has long recognized, "modification of the terms of an injunctive decree [is appropriate] if the circumstances . . . at the time of its issuance have changed, or new ones have since arisen." Systems Fed. No. 91 Ry. Employees Dep't v. Wright, 364 U.S. 642, 647 (1961). Thus, a "district court, of course, has continuing power to modify or vacate its decree." Ellis v. City of La Mesa, 990 F.2d 1518, 1531 (9th Cir. 1993), cert. denied, 513 U.S. 925 (1994). Moreover, "[b]ecause permanent injunctive relief" -- which was granted in this case -- "controls future conduct, federal courts must be sensitive to the need for modification when circumstances change," particularly "when an injunction involves changing conduct and facts not predicted at the time the injunction was issued." Clark v. Coye, 60 F.3d 600, 604 (9th Cir. 1995).

This is such a case. As this Court recognized in 1990, the injunction was supposed to accomplish a particular objective, to ensure "that these animals that were to be adopted were well cared for . . . ." Transcript of July 30, 1990 hearing at 56 (Pl. Exh. 7). Yet, many are not in fact being well cared for. To the contrary, despite this Court's injunction, the Ninth Circuit's affirmance, and this Court's admonishments on both occasions that plaintiffs previously returned to this Court, BLM and its employees continue to operate an adopt-a-horse program which is, as characterized by the Court of Appeals, largely "a farce." 86 F.2d at 927.

There is no great mystery in the underlying reason for BLM's continuing violations of the injunction. As explained in the DOJ Memorandum, due to various pressures -- many of which are self-imposed -- BLM is "[f]aced with the need to remove 10,000 horses a year from public lands." DOJ Mem. at 5 (Pl. Exh. 8). Given Congress' prohibition on BLM slaughtering the animals, BLM must find individuals to take title to them. Although there is in fact a large demand for legitimate adoption, Sussman Decl. Par. 5 (Pl. Exh. 21), finding legitimate adopters requires some effort on BLM's part. Rather than expend that effort, BLM has opted in many cases to transfer title to individuals who simply do not want to keep and care for the animals.

As a result, BLM has refused to find out adopters' intentions when the need for inquiry was obvious, has transferred title even when it knew an adopter's intentions were illegitimate -- a blatant violation of this Court's injunction -- and, according to the government's own documents, has taken extraordinary pains to avoid prosecuting violators within and without BLM. See Martha Mendoza, Probe of Wild Horse Slaughter Derailed, Los Angeles Times, Mar. 23, 1997 (Pl. Exh. 31).

Plaintiffs could continue to pursue violations of the existing injunction in individual contempt proceedings in this Court. However, plaintiffs are not returning to this Court at this time to seek contempt against the Secretary or other BLM employees. Instead, plaintiffs seek specific modifications to this Court's injunction that will remedy this problem in the future, and will put an end to BLM's "don't ask, don't tell" policy. If the Court adopts the specific changes discussed below, plaintiffs believe that far fewer animals will end up slaughtered, and BLM will be more fully carrying out its statutory duty to protect these animals.

I. The Injunction Should Be Modified To Require BLM To Timely, Affirmatively, and Explicitly Inquire Into Adopters' Intentions.

When this Court fashioned its original injunction, BLM had admitted that it was transferring title even when it "knew [of] the transferees' intent to exploit the animals for commercial purposes." 671 F. Supp. at 698. Given this admission, the Court did not have to determine whether BLM had any duty to inquire into what adopters plan to do with their animals after receiving title. Thus, as the Ninth Circuit noted, the injunction did "not address whether the Secretary has an affirmative duty to ascertain an adopter's intent." 860 F.2d at 928.

Nonetheless, by limiting the injunction to situations in which BLM already has knowledge of an adopter's ill-intent without making an inquiry, this Court certainly did not intend, ten years later, for BLM to have institutionalized a "don't ask, don't tell" policy -- a policy which permits BLM to transfer title to adopters with ill-intentions simply by studiously avoiding inquiry into the adopter's intent, even where the most minimal effort would expose these adopters. To the contrary, as this Court noted in its original decision, in order to determine whether an adopter is a "qualified individual" as defined in the statute, 16 U.S.C. '1333(c), it is obviously important to know whether the adopter "is someone who will care for the animals, [rather than] someone who will exploit or destroy them." 671 F. Supp. at 697. Much of the ongoing abuse in the adopt-a-horse program stems from BLM's unwillingness to acquire this knowledge by making even the most obvious, rudimentary inquiry into an adopter's post-titling intentions.

In order to squarely address BLM's "don't ask, don't tell" policy, then, plaintiffs seek a modification of this Court's injunction to require that BLM in fact inquire into an adopter's intentions. The agency clearly has the legal authority to make such an inquiry in order to determine whether prospective adopters should be allowed to obtain title from the government. Indeed, BLM's own internal guidance requires that for group adoptions, if the adopter is "employed by or engaged in a livestock auction, rodeo, or slaughterhouse" the adopter must "state in writing the reasons for adopting the animals." BLM Guidance at I-7 (Pl. Exh. 32). BLM should simply apply this requirement to all adopters, not just those employed by rodeos or slaughterhouses.

This would not be an administrative burden. Under BLM's current procedures an adopter must sign both an Application and a Private Maintenance and Care Agreement, both of which contain limitations on the adopter's use of the adopted animal during the one year probationary period. Pl. Exhs. 1 and 2. The adopter signs these documents under penalty of prosecution for false statements under 18 U.S.C. $ 1001. All BLM would need to do to make specific inquiry into adopters' intentions would be to add the following, or equivalent language, to both the Application and Agreement in a conspicuous location: "I do not intend to sell the animal(s) I am adopting upon obtaining title, and I will not seek to obtain title to any animal which, at the time I apply for title, I intend to sell."

Adding this explicit language to the Application and Private Maintenance and Care Agreement would plainly be consistent with the objectives of this Court's original injunction, and would serve several vital purposes. First, it would serve as a significant deterrent to continuing abuse in this program. If adopters are forced to sign a statement regarding their intention, under the threat of prosecution for false statements, these exploitative adopters are significantly less likely to participate in this program in the first place. Similarly, BLM employees -- including those acting without official agency authority or knowledge -- will no longer be able to convince adopters that their adopted animals will be available for sale after title is transferred.

Second, the statement would serve BLM as useful benchmark for prosecution of violators. Although the Ninth Circuit said the adopt-a-horse program is "a farce" if "on the day the one-year period expires, the adopter can proceed to the slaughterhouse with his horse or burros," 860 F.2d at 927, under BLM's current policy, in which the agency studiously avoids inquiring into an adopter's intentions, it is perfectly acceptable for an adopter to do just that -- i.e., sell the titled animals for slaughter immediately after obtaining title. In fact, it is plaintiffs' understanding that in the entire history of this program, while thousands of titled animals have ended up in slaughterhouses, not one adopter has ever been prosecuted as a result. [8]

Making adopters affirmatively attest to their intentions would significantly alleviate this problem. An adopter who immediately sells titled animals could not claim that he thought there were no post-titling limitations on use of the animals, or that BLM employees told him that he could do what he wanted after obtaining title. While he could claim that his intentions changed upon obtaining title -- e.g., because of an abrupt change in financial circumstances or the like -- this would be far more difficult for adopters who sell horses for slaughter shortly after obtaining title. As this Court, contemplating just such an affirmative inquiry, explained at the hearing on plaintiffs' summary judgment motion, should adopters continue to sell their animals immediately to slaughter even with the attestation included, such individuals could be prosecuted "for perjur[ing] themselves when they sign the affidavit . . . ." Transcript of May 22, 1987 hearing (Pl. Exh. 33 (relevant excerpts)) at 15. The threat of prosecution should itself become a significant deterrent. [9]

Third, affirmatively inquiring into adopters' intentions would more fully serve the purposes of the adopt-a-horse program than BLM's implementation of the original decree, which has completely undermined those purposes. Congress could have treated wild horses and burros like any other excess government property, permitting private parties to simply purchase them and immediately obtain title. Under such a program, adopters clearly could have immediately resold their newly titled animals.

But that is not the way the statute is designed. Instead, it was "'the expressed intent of the committee [considering the legislation] to remove the possibility of monetary gain from exploitation of these animals.'" 860 F.2d at 926. Thus, as the Ninth Circuit recognized, Congress required that BLM determine "that adopters are both 'qualified individuals' and persons who 'can assure humane treatment and care.'" 860 F.2d at 926, quoting 16 U.S.C. $ 1333(b)(2)(B). To ensure that BLM has an opportunity to be satisfied that the adopter meets these eligibility criteria, the statute requires that the adopter provide this humane treatment and care for a full year before BLM may transfer title. Id. at 1333(c). Similarly, Congress required a written determination from the Secretary to permit an individual to adopt multiple animals, in order to ensure the "adopting party is capable of humanely caring for more than four animals." H. Rep. No. 1737, 95th Cong., 2d Sess. 14 (1978), reprinted in 1978 U.S.C.C.A.N. 4127, 4130.

All of these provisions indicate that Congress' intent was for BLM to transfer animals to individuals who planned to keep the animals, not to sell them, and that BLM would not studiously avoid finding out the intentions of adopters. See Haberman v. United States, 26 Cl. Ct. 1405, 1418 (1992) (finding that BLM must not only "ensure that [adopted animals] have received proper care during the probationary period," but also that "they will continue to receive such care following adoption.") Consequently, especially in light of BLM's circumvention of the Court's injunction, it would obviously be far more in keeping with Congressional intent for BLM to make some affirmative inquiry into prospective adopters' intentions. Adopters who intend to sell their animals would, as Congress intended, not be participating in this program, at least not without violating a sworn declaration.

Finally, requiring an affirmative inquiry into adopters' intentions would resolve considerable uncertainty within BLM regarding its obligations. Clearly, the agency has been unable or unwilling to comply fully with this Court's existing injunction and its underlying purposes. As recently as late 1995 the chief BLM Special Agent in New Mexico expressed uncertainty regarding whether and when BLM has an obligation to inquire into adopters' intentions. Memorandum of October 2, 1995 (Pl. Exh. 34). He recommended clarification through "some litigation process," and suggested that, until that process is complete, BLM should adopt a policy that "[p]rior to granting title, [BLM will] ensure that the new owner clearly understands that he cannot sell the horse to a processing plant. . . ." Id. at 2. By modifying the existing injunction to require BLM to affirmatively inquire into adopters' intentions, this confusion regarding how BLM determines when to transfer title will be significantly ameliorated.

The only animals which will not be assisted by putting this inquiry into the Application and Agreement are those animals already in the hands of adopters, because these papers are signed before the adopter receives the animal for the probationary period. Currently, over 30,000 animals eligible for title transfer remain untitled, Team Report at 5 (Pl. Exh. 20), and, according to recent recommendations, BLM intends shortly to complete the titling process on these animals. Id. at 9. While the Court should ensure that this recommendation is implemented, in order to protect these animals from being titled and then slaughtered, before title transfer, BLM should require these adopters to sign a new document stating their intentions. By completing the titling process, and inquiring into adopters' intentions, BLM will reduce the numbers of these animals which end up in commercial slaughterhouses. Indeed, drawing on his more than twenty years of experience in the program, Jerome Needy believes that inquiring into adopters' intentions "would substantially alleviate the ongoing slaughter of these animals upon transferring title." Needy Decl. Par. 3 (Pl. Exh. 10).

II. The Injunction Should Be Modified To Prevent BLM From Encouraging or Sanctioning Adoption for Sale and Slaughter.

To rectify BLM's abuse of the adopt-a-horse program, several additional changes should be ordered. First, BLM should not be permitted to continue large scale adoptions, including both approved group adoptions by one individual and power-of-attorney adoptions. These adoptions have been a primary source of animals being sold for slaughter as long as they have been permitted, and they should be suspended. [10]

Second, the Court should prevent BLM from using its regulations to sanction willful violations of the Court's Order, rather than using them to aid in enforcement efforts. For example, BLM regulations permit slaughterhouses to accept wild horses and burros for slaughter as long as they are accompanied by certificates of title that the slaughterhouse retains for at least one year. 43 C.F.R. $$ 9264.7(a)(14) and (15). At present, however, BLM has no systematic program to collect these certificates or the vital information they contain, i.e., whose adopted animals have ended up at slaughterhouses. Consequently, as currently implemented, this regulation sends a message that slaughter is sanctioned, without serving any compensating useful purpose. [11]

If BLM were ordered to obtain this information routinely, and utilize it in a comprehensive database, it could aid tremendously in enforcement of the statute. Most important, this information could assist in BLM's efforts to determine who is a "qualified individual" to adopt wild horses and burros. If an adopter's prior adopted animals end up at the slaughterhouse, he should be presumed not qualified to adopt animals in the future, unless he can provide compelling reasons why his newly adopted animals will not suffer the same fate.

In addition, this information would reveal those situations when an adopter's animals ended up in a slaughterhouse weeks after he obtained title. Thus, the government would have a strong case against the adopter for making false statements concerning his intent on receiving title.

Third, the Court should prevent the agency, in its regulations, guidance, promotional materials, and all other public information, from suggesting that animals may be sold once title is obtained, rather than sending a clear message that adopters may not adopt animals with the intention of selling them. For example, BLM's adopt-a-horse brochure states: "In general there are no federal restrictions on how you use your adopted wild horse or burro . . . ." (Pl. Exh. 36 at 9). Similarly, BLM's regulations provide that after titling an animal "is no longer under the protection of the Act or regulations . . ." 43 C.F.R. $ 4750.5(c). Thus, although the Ninth Circuit expressly rejected BLM's argument that the "possibility of commercial use was the 'incentive' that Congress envisioned would spur the adoption program," Pl. Exh. 2 at 25, BLM continues to send a not-so-subtle message which keeps this very incentive intact, particularly when coupled with the agency's on-the-ground implementation of a "don't ask, don't tell" policy.

To remedy this problem, the Court should order BLM to rescind the regulation which states that, after title transfer, these animals are entitled to no protection. 43 C.F.R. $ 4750.5(c). Similarly, the Court should require that BLM add to its other materials on the adopt-a- horse program an explicit statement that adopters may not adopt animals intending to sell them. By sending this clear and unambiguous message, BLM would significantly deter the continuing abuses of this program which have continued to take place even under the terms of the Court's injunction.

Finally, BLM must no longer permit its own employees to participate in adoption for slaughter. As the Associated Press has documented, over 200 employees have adopted over 600 animals, a number of which have been slaughtered. Martha Mendoza, Program to Protect Horses Sends Them to Die, Times-News, Jan. 5, 1997, at 16A (Pl. Exh. 37). Although having BLM employees sign the same attestation as all other adopters may ameliorate this problem, employees should be held to an even higher standard, for they represent the agency entrusted with the care of these animals. To allow them to sell their adopted animals under any circumstances sends the message to adopters that adoption for slaughter is permissible, and is antithetical to the purposes of the Act. Thus, BLM should flatly prohibit its own employees from selling their adopted animals, in order to ensure that employee adopted animals do not end up at the slaughterhouse. [12]

III. The Court Should Maintain Ongoing Judicial Oversight of This Federal Program.

Given BLM's many violations of this Court's orders, in addition to modifying the injunction, the Court should order that each year, for the next five years, the Department of Interior must provide to the Court, and to plaintiffs, a written report detailing its implementation of the measures discussed herein, and certifying that in the past year no prospective adopter has been granted title to any animal(s) without having signed the attestations discussed above. Along with this Report, BLM should provide the title records it obtains from slaughterhouses, and a copy of its database recording each gathered horse or burro, to enable plaintiffs and the Court to meaningfully verify BLM's representations.

In addition, the Court should order that BLM implement all of the recommendations contained in BLM's two recent internal reports which are consistent with the relief plaintiffs are seeking. (Pl. Exhs. 8, 29) Although these recommendations are certainly no substitute for the relief plaintiffs seek by this motion, they would provide some improvement in areas such as long-overdue titling. By imposing a schedule by which BLM must implement these recommendations, the Court can ensure that they become more than mere words and empty commitments.

BLM has amply demonstrated that it lacks the ability to reform the adoption program without continued judicial oversight. Only through continued judicial intervention can BLM be forced to comply with the letter and spirit of the law, and to stop using the adoption program as a surreptitious way to destroy these "living symbols of the historic and pioneer spirit of the West." 16 U.S.C. $ 1331.

For the foregoing reasons, plaintiffs respectfully request that this Court grant plaintiffs' motion and modify its injunction in these necessary respects. A proposed order accomplishing this result is attached.

1. According to Federal Rule of Civil Procedure 25(d), these individuals are automatically substituted for prior officeholders.

2. As detailed in the accompanying declaration of Jerry Needy (Pl. Exh. 10, Par. 2.D), BLM has in its possession documents showing even more violations of this Court's injunction than plaintiffs have already documented. Should this Court conclude that an even fuller record of BLM's ongoing violations of this Court's injunction is necessary before the Court crafts relief, plaintiffs would request that the accompanying Motion To Conduct Discovery be granted.

3. Each year BLM's appropriation comes with the limitation "[t]hat appropriations herein made shall not be available for the destruction of healthy, unadopted, wild horses and burros in the care of the Bureau of Land Management or its contractors." See, e.g., Omnibus Consolidated Appropriations Act, 1997, Pub. Law. No. 104-208, 110 Stat. 3009.

4. Plaintiffs are not at this time challenging these regulations, despite the inconsistency between the regulations and Section 1333(d), because Section 1333(d) is directed at private parties, while this Court's injunction runs only against BLM.

5. Should the Court deem it necessary, plaintiffs can provide further details of specific violations of the injunction, and the statute. A great number of records detailing these violations are in the hands of BLM, and can be readily identified by former BLM employee Jerome Needy. Needy Decl. Par. 2.D (Pl. Exh. 10). Should the Court find it necessary to consider further concrete examples of violations of the injunction, plaintiffs have filed a motion to produce these additional documents.

In addition to the "don't ask, don't tell" policy, BLM has avoided the Court's injunction by failing to transfer title in a timely manner. A 1993 Memorandum from the New Mexico state director indicated that at that time untitled horses and burros nationwide numbered as many as 45,000. July 28, 1993 Memorandum at 2 (Pl. Exh. 22). Little progress in resolving this problem was made in the next several years -- an April, 1997 BLM report documents that there are still well over 30,000 eligible, yet untitled animals. Team Report at 5 (Pl. Exh. 20).

Similarly, in May 1995, Walter Johnson, Chief of BLM law enforcement, wrote directly to the Federal Bureau of Investigation seeking assistance in an investigation concerning "higher level BLM management" involvement in "criminal malfeasance." May 12, 1995 letter at 1 (Pl. Exh. 27). For reasons not explained in the records plaintiffs have obtained, the matter was not investigated. August 24, 1995 letter (Pl. Exh. 28).

Indeed, the DOJ Memorandum explains why the current policy makes it difficult to prosecute an adopter who immediately sells titled animals:

the theory [would have to be] that an application to adopt horses has an implied promise to keep the horses once adoption passes. [However,] while the promise might be there, the agency policy and apparently what adopters are told by agency officials, however much Hodel is to the contrary, is that once title passes the horses belong to the adopters.

Memorandum at 4 (Pl. Exh. 8).

Enforcement might also take place pursuant to the False Claims Act, 31 U.S.C. $ 3229, et seq., which permits private parties, acting on behalf of the government, to prosecute false claims. Although no False Claims Act case has yet been prosecuted concerning the adopt-a-horse program, requiring individuals to explicitly state their intentions would aid in the use of this enforcement tool as well.

Plaintiffs understand that BLM is already contemplating rescinding its power-of-attorney adoption program, plainly recognizing its role in these ongoing abuses.

As explained supra, n.4, although Section 1333(d) prohibits these animals from ever being sold for slaughter, because this Court's injunction runs against BLM rather than private parties, plaintiffs are not at this time challenging the legality of these regulations, only the use to which they are put. Nonetheless, it is worth noting that BLM itself has written to at least one slaughterhouse that "[c]ertainly, the BLM would be fully supportive if your corporation took a position of refusing to accept any wild horses for slaughter, regardless of title." Letter of Dec. 22, 1994 (Pl. Exh. 35).

According to BLM's recent recommendations, employees are not routinely selling adopted animals. Pl. Exh. 20 at 15. Consequently, imposing this restriction should not pose a hardship on BLM or its employees. However, the one additional substantive restriction on employees which BLM does recommend -- not allowing employees to participate in reduced fee adoptions -- will not stop employees from adopting animals with the intention of selling them. It merely makes it marginally less profitable.

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