LOVELL — While the Cloud Foundation’s lawsuit against the BLM’s planned capture and removal of 17 mustangs from the Pryor Mountain Wild Horse Range has met success – resulting in the Montana District Court’s ordering of a temporary restraining order against the BLM – another lawsuit against the gather has gone entirely unnoticed.
It’s nothing new for Jerri Tillett, whose federal case against the BLM is on the verge of being dismissed. She’s gone to the U.S. Supreme Court in reaction to the 2012 gather and the 2015, gather along with the most recent gather. She's filed in the District Court of Montana in reaction to every gather since 2001. All were dismissed and failed to gain significant media coverage.
“This is a human interest story, of one women battling for decades to get justice for the horses and for the environment and for civil rights,” said Marybeth Devlin, a wild horse advocate based in Florida.
There are two major factors that have legally kept Jerri Tillett, who lives near the Pryor Mountains where the horse range is established, from being successful.
The first is the controversial Chevron Doctrine. In its 1984 decision in Chevron USA Inc. v. Natural Resources Defense Council, the Supreme Court held that if a statutory provision is ambiguous, and if a federal agency’s interpretation is a permissible interpretation of the statute, the court is to show deference to the agency’s interpretation of the law it administers. The Doctrine has been used as rationale in the dismissal of several of Tillett’s cases.
The second is that Tillett, who has not attained legal services, represents herself. This has caused her lawsuits to be dismissed over formatting and wording issues, and not the substance of the arguments.
In Tillett’s brief to the District court of Montana this year, one of the reasons for her
case’s dismissal was her use of the phrase “request-of-action” instead of “motion.”
Tillett is considered a pro se plaintiff, meaning she represents herself, and that grants her the right to be held to less stringent standards, according to legal law. Tillett argues it’s a leniency the courts have not given her.
U.S. Attorney Melissa Hornbein argues instead in her motion to dismiss, filed Aug. 24 in Tillett's later federal case, that Tillett's lawsuit failed to meet the minimum threshold in meeting legal standards due to Tillett failing to file any motion separate from her complaint and file a brief in support of it, among several other reasons.
For Tillett, it all results in a legal environment where the BLM is not being held accountable for their decisions and rather protected by the judicial branch.
"The malfeasant status quo has been ignoring this aspect of the issues for decades now," Tillett stated in an Aug. 27 filing to her current federal case. "The Judicial Branch defers to the defendants' due to the (Chevron) Deference principle rather than enforce the Constitution of the United States. This dysfunctional pattern needs to change."
Tillett, in her most recent lawsuits, calls for an investigation into the Billings BLM Field Office by the Governmental Accounting Office.
"Just follow the evidence trail wherever it may lead," Tillett states in her 2018 motion to the District Court of Montana.
Because of the fashion her lawsuits have been dismissed, Tillett feels she's never had a fair hearing from the District or Federal Courts. It's a violation of her rights, she said, a violation of the stature she is supposed to hold as a citizen of the United States of America.
“I have a constitutional right to petition," Tillett argues in her 2018 motion to the Billings District Court. “When the defendants dismiss my petition outright without due consideration that negates my constitutional right to petition."
Tillett also argues in her motion that her right to due process has also been violated by the court's handling of her cases.
That hasn't stopped her from being in the Billings BLM Field Office with a lawsuit at hand every time a gather is announced, and it has created an uneasy relationship between Tillett and the agency.
"She's like a gadfly that has been at them for years," Devlin said. "They just want to get her out.”
According to Devlin, the BLM has threatened Tillett with arrest and prosecution if she communicated with anyone other than the Billings Field Office Manager.
Al Nash, communications director for the BLM, said he could not confirm whether or not this was the case but said he knew Tillett needed to be escorted into the building. She has been a "disruptive" presence in the past, he said.
In Hornbein's motion to dismiss, she stated that one of the reason's Tillett's motion was invalid was because she did not “notify the United States of her intent to file such a motion." Devlin said the BLM made it "risky" for Tillett to contact the U.S. Attorney.
“Instead of complaining about Tillett's failing to make a courtesy call, the U.S. Attorney might ask herself why her client failed to alert her to the likelihood of an appeal," Devlin said. "Tillett has appealed every illegal action the BLM has committed over the past two decades."
Tillett in her lawsuits goes one step farther than Ginger Kathrens and The Cloud Foundation in her lawsuits. While Kathrens filed against the gather this year, Tillett opposes both the gathering of mustangs and the administering of PZP fertility control.
"I'm requesting a blanket stay," Tillett states in her 2018 motion to the District Court of Montana. “… This means leaving the horses alone, leaving the predators alone, no burns or poisons. Basically, leaving the PMWHR alone. Let it be the wilderness area it is."
Tillett alleges in her lawsuit that the BLM began the gathering process months before they announced it on August 3.
"I traverse the Crooked Creek road on my daily routines. The BLM Britton Springs facility is located on the side of the same road. I have been observing, for the past several months, the BLM's activities at that location," Tillett states in her 2018 motion to the District Court of Montana, which was filed July 17. "They have been trucking in several haystacks, corral panels, equipment, large horse trailers, etc."
In a May 25 document listing tentative removal schedules, the BLM lists that 20 mustangs are being considered for removal, with the rationale left blank. No decision record had been given at the time, causing Tillett to proclaim the gather “illegal and unnecessary."
Hornbein, in her motion to dismiss, said what Tillett saw was not the preparations for an unannounced cull of Pryor Mountain Mustangs.
"A total of 73 horses from holding facilities in Utah, Nevada and Wyoming were brought to Britton Springs between May 21, 2018, and June 24, 2018. All of these horses were present at Britton Springs only long enough to prepare them for adoption or sale," Hornbein said.
Nash confirmed Hornbein's account in more succinct terms.
"Were we gathering mustangs? Let me state it simply," Nash said. "No."
The Lovell Chronicle failed to find any evidence that the activities Tillett witnessed were not done in preparation for an adoption.
Tillett's July filing was one of the primary reasons this year's lawsuit was dismissed from federal court.
"The plaintiff seeks to challenge an agency action that was not final at the time she filed her complaint," Hornbein stated.
But other Tillett arguments have been affirmed. Tillett argued the BLM's research in support of their announced 2018 gather was "fraudulent" based on research done by Devlin. In a report emailed to the Billings BLM Field Office, Devlin argues that BLM justified their gather on outdated methods that are inaccurate.
"The BLM has improperly reaffirmed an inadequate and unscientific (Area Management Level) using questionable land health assessments" Devlin said. "The reaffirmed AML remains arbitrary and capricious."
Judge Susan Watters, in her Aug. 3 order issuing a temporary restraining order against the gather, also found fault with the BLM's current AML.
"In July 2016 this court found that the BLM had committed to recalculating the 2009 HMAP AML by 2015 but failed to do so," Watters wrote. "Accordingly this court held that BLM acted arbitrarily and capriciously when it used the 2009 AML as the basis for removing 20 young horses from the Range in 2015.
"In the Spring of 2018, the wild horse population on the range remained above the 2009 AML at 154," Watters continued. “So, on January 14, 2018, BLM issued the 2018 PMWHR Bait/Water Trapping Gather and Fertility Control Preliminary Environmental Assessment which tiers to the 2009 HMAP for public comment."
The next hearing in the Cloud Foundation's case is currently set for Nov. 5, delayed after being initially scheduled on Sept. 28. As she is used to, Tillett will be watching from the outside.
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