Disastrous Oil Spill, Fatal Horse Roundup: Blame the Interior Department

Two years after a rollicking sex and drugs scandal hit the Department of the Interior, and nearly three months after the Deepwater Horizon calamity hit the Gulf of Mexico, it’s clear the venerable (but rarely venerated) agency still can’t get its basics right. From a forced and deadly roundup of wild horses in the red dust of northeastern Nevada to the slimy, tar-balled seas of the Gulf, the Interior Department keeps exhibiting dichotomies that are poisonous to good governance. It has stubbornly remained arrogant despite having no recently evident cause to be brash. And it continues to offer to the nation inadequate work even as its responsibilities grow in the wake of the Gulf disaster, one of the worst oil spills in world history.

Let’s start with a keystone. As any administrative law professor will tell you, one basic function of an administrative agency is to generate and disseminate accurate and credible and comprehensive evidence through a rigorous fact-finding process. Designed to be speedier than the judicial process and less cumbersome than federal legislation, federal administrative agencies are supposed to help us make sense of dense, technical, often-scientific information — like why a drilling moratorium is necessary in the Gulf — in a way that then justifies the power and authority granted to the agency and reassures the rest of us, so much as possible, of a fair deal.

Yet when the Interior Department tried last month to justify in court its six-month moratorium on deep-water drilling in the Gulf, the federal judge who heard the case was flabbergasted at the lack of quality, professionalism and integrity in the work of the Minerals Management Service team within Interior. That’s the same division, not coincidentally, from which the department’s 2008 scandal emerged. Evidently these people aren’t very good at what they do even when they aren’t watching porn at work all day.

Among other harsh criticisms of the government’s drill-ban evidence, U.S. District Judge Martin L.C. Feldman noted a disturbing lack of candor in it: “Indeed,” he wrote, “while the government makes light of the fact that several of the experts disagree with the recommendations in the Report by noting that they do not disagree with the findings, of greater concern is the misleading text in the Executive Summary that seems to assert that all the experts agree with the Secretary’s recommendation. The government’s hair-splitting explanation abuses reason, common sense, and the text at issue.” And that’s when the judge was being nice.

Much was subsequently made of the fact that Judge Feldman had some oil-related investments when he issued his order denying reinstatement of the drilling ban. Evidently, the judge has now sold those stocks, but he could have increased his shares in and it still wouldn’t have mattered. In fact, Feldman could have channeled Tony Hayward or Philippe Cousteau, but the MMS “report” about the drilling ban still would deserve an F. No perceived conflict of interest on the part of any judge could rescue or excuse such a shoddy work product by an administrative agency. Any judge would have seen it the way Feldman did — and the 5th U.S. Circuit Court of Appeals promptly affirmed the order, causing MMS officials to go back and try to make right what it should have gotten right in the first place.

The fish, fowl and economic kill in the Gulf would be bad enough if Interior’s credibility problems were merely limited to the MMS. But on Friday, far from the ocean, another Interior Department division, the Bureau of Land Management, hastily forced the roundup of 1,200 or so wild horses, including vulnerable newborn foals, in circumstances that cry out for further explanation and review. As reported locally, the BLM says the Nevada roundup was necessary because “the current wild horse population in these [public lands] is more than three times what the range can sustain. We need to gather and remove the excess wild horses to achieve a thriving natural ecological balance on the land and address the horse populations that have moved outside the [public] boundaries.”

Others are not so sure. Horse advocate Laura Leigh notes that there is plenty of room — 480,000 acres, give or take a few — for the horses. She contends that the BLM is forcing the issue now (instead of waiting until the new foals are assured of being strong enough to be herded via helicopter) because two private developments are slated for the area. One is at the Arturo Mine project, where Interior is undertaking an environmental impact study on behalf of Barrick Gold Exploration, a company that wants to expand open-pit mining to thousands of acres of public and private land. The other industry-fueled development that some say prompted the deadly mustang roundup is the Ruby Pipeline project, which for a while became so controversial that the BLM was forced to explain itself to the media.

It may have to explain itself again. An animal rights group has appealed the timing of the BLM’s roundup to the Interior Board of Land Appeals. The grievance in the case, oddly enough, isn’t the sanctity of the animals or the rapacious development of pristine lands for private gain. It’s the far more modest charge that the BLM has violated its own, longstanding and widely accepted rules about “foaling seasons”– no roundups from mid-January to mid-August to save baby horses. Even if the BLM justification for giving the horses the bum’s rush is twice as strong as was the MMS justification for the drilling ban in the Gulf, it still won’t be strong enough to justify the agency’s departure from the rules protecting foals. Should the sins and omissions of the MMS be impugned to the BLM? Why not? They both answer to the beleaguered secretary of the Interior, Ken Salazar, don’t they?

Nevada is a long way from the sea. But forgive me for worrying that the same guys who promised me safety in the Gulf are now promising me safety for our nation’s wild horses — or that an agency exposed as besotted with industry influence toward Gulf drilling issues is suddenly going to develop a backbone to stand up to corporate interests in the desert. It’s too late for the Gulf. The damage from a lack of regulatory oversight at Interior is all but done there. I just hope it’s not too late for northeastern Nevada, too.

Andrew Cohen
Legal Analyst
Posted: 07/12/10

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