About Last Night…

Good Morning!

We have been FLOODED with calls, emails, private messages and even text messages – ALL of them are “About last night…”

Last night was a disappointment.

Did we REALLY expect anything different?

In their scripted response, the park is now telling us that having horses on NPS property is a violation of 36 CFR § 2.60 and the NPS Organic Act (54 U.S.C. §§ 100101 et seq.) 


#1 The park seems to regularly forget that our national parks belong to US – the taxpaying public. 

And #2…

We have been trying to figure out HOW the park came up with this “livestock” classification for the horses for quite some time.  Our lawyers have been trying to get to the bottom of this very relevant question for a while now.  We KNEW this livestock classification was WRONG and yesterday the park showed their true reasoning for changing the label on the horses from their previous labels of “demonstration herd”- “historical representation” or “cultural resource” to simply “LIVESTOCK”.

We are now supposed to simply accept that after 76 years the National Park Service is forcing Theodore Roosevelt National Park – quite suddenly – to answer to these ongoing violations?

For those of you asking -the park has stated that they will make a recording of the meeting available.  We have no idea when that will be or if it will include the entire meeting – WITH the Q&A portion or just their presentation.

More than anything, we hope that last night showed beyond a shadow of a doubt how serious this situation is for our beloved wild horses that call Theodore Roosevelt National Park home.  We need your help now more than ever.  Please help support our advocacy work.  There are several ways listed on our website that you can help: https://chwha.org/support-chwha/

This meeting also showed just how important it is that EVERYONE gets their comments into the park by the January 31st deadline! REMEMBER – the ONLY ways you can comment to the park is through the PEPC website at: https://parkplanning.nps.gov/LP

Or in writing to:
Theodore Roosevelt National Park
PO Box 7
Medora, ND 58645

We have more to share on this topic and the meeting yesterday so be sure to check back. 

We will leave you with this ~ For your reading enjoyment…from our lawyers in our March of 2022 letter to the TRNP on this topic:

  1. The Park’s Ad Hoc Classification of Wild Horses as ‘Livestock’ Runs Contrary to the Plain Meaning of the Agency’s Regulations

NPS, and the National Park system as a whole, were established by Congress in 1916 through the Organic Act. See 54 U.S.C. § 100101 et seq. Unlike other federal land management statutes (e.g., the Federal Land Policy and Management Act, 43 U.S.C §§ 1701(a), 1702(c)) that require a balance between conservation and extractive uses, the Organic Act focuses exclusively on the preservation of the nation’s park lands and the specific resources found therein. In relevant part, the Organic Act provides that NPS:

[S]hall promote and regulate the use of the National Park System by means and measures that conform to the fundamental purpose of the System units, which purpose is to conserve the scenery, natural and historic objects, and wild life in the System units and to provide for the enjoyment of the scenery, natural and historic objects, and wild life in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.

54 U.S.C. § 100101(a).

Given the Organic Act’s strict preservation mandate, NPS’s regulations implementing the Act broadly prohibit the removal of any wildlife, dead or alive, from the boundaries of a National Park. See 36 C.F.R. § 2.1; see also id. § 2.2 (NPS regulations concerning wildlife, which include a prohibition against “taking” and/or intentionally “disturbing” wildlife found within a park unit). According to NPS, “[w]ildlife means any member of the animal kingdom and includes a part, product, egg or offspring thereof, or the dead body or part thereof, except fish.” 36 C.F.R. § 1.4 (emphasis added). Notably, NPS’s regulations pertaining to wildlife take do not draw any distinction between native and non-native (i.e., invasive) species, although the latter may be removed from a park unit under specified conditions. See NPS, Management Policies at 48 (2006), https://bit.ly/3tvupvi [hereinafter Mgmt. Policies].

NPS’s regulations, however, contain an exception for “livestock” animals. The “pasturing or grazing of livestock of any kind in a park area” is generally prohibited but may be permitted “as a necessary and integral part of a recreational activity or required in order to maintain a historic scene”—so long those animals have been “designated” as such by the responsible park official. 36 C.F.R. § 2.60(a)(3).

Although NPS has never formally designated the wild horses of the TRNP as “livestock,” the agency manages these animals as though they were livestock. See Wild Horse EA at 2 (“Since the horses cannot be classified as a native wildlife species, they are managed as a livestock display, significant because of the presence of feral horses in this area during Theodore Roosevelt’s time.”); see also id. at 8 (“[F]eral horses are historic livestock displays that should be managed separately and apart from native wildlife species.”); FAQs, supra (“[P]ark horses are maintained as a demonstration herd to represent a historic scene reminiscent of Theodore Roosevelt’s time in the Badlands of North Dakota.”).

The TRNP’s classification, however, runs counter to the plain language of the NPS’s implementing regulations. Although those regulations do not define “livestock,” that term generally refers to domesticated animals. See Livestock, Webster’s New Collegiate Dictionary (7th ed. 1967) (“[A]nimals kept or raised for use or pleasure.” (emphasis added)); see also 43 C.F.R. § 4100.0-5 (BLM regulations defining “livestock” as “species of domestic livestock – cattle, sheep, horses, burros, and goats.” (emphasis added)). By contrast, here, there is no indication that the wild horses found in the TRNP are domesticated in any way; that is, they have never been fed, sheltered, or cared for in any way by the Park. And, while these horses may be descendants of domesticated animals, the Park itself refers to the modern population as “feral”— a term that, by definition, means these horses are no longer “domesticated or cultivated.” See Feral, Webster’s New Collegiate Dictionary (7th ed. 1967) (“[O]f, relating to, or suggestive of a wild beast”); see also Wild Horse EA at 2; Foundation Document at 36 (characterizing the TRNP herd as “feral”). Moreover, as mentioned above, wild horses have roamed free across North Dakota’s Badlands (and, specifically, the Park area)—without human intervention—since well before the TRNP even existed. See Horse Background, supra; see also Castle Report, infra, at 1-6.

For all these reasons, the Park’s unexplained classification of wild horses as “livestock” cannot be squared with the plain meaning of NPS’s regulations and therefore cannot be sustained under basic principles of administrative law. See Chicago Transit Auth. v. Adams, 607 F.2d 1284, 1289 (7th Cir. 1979) (“Words are to be given their ordinary meaning absent persuasive reasons to the contrary.”); see also In re Old Fashioned Enterps., Inc., 236 F.3d 422, 425 (8th Cir. 2001) (“Although substantial deference is due an agency’s interpretation of its regulations, no deference is due if the interpretation is contrary to the regulation’s plain meaning.” (citing Shalala v. St. Paul–Ramsey Med. Ctr., 50 F.3d 522, 528 (8th Cir.1995)); Safe Air for Everyone v. EPA, 488 F.3d 1088, 1097 (9th Cir. 2007) (“As a general interpretative principle, ‘the plain meaning of a regulation governs.’” (quoting Wards Cove Packing Corp. v. Nat’l Marine Fisheries Serv., 307 F.3d 1214, 1219 (9th Cir. 2002)).

Notably, the TRNP’s “livestock” classification is at odds with how wild horses are managed at the Assateague Island National Seashore—one of the only other units of the National Park system that manages for wild horses. At Assateague, NPS maintains a herd of 80-100 wild horses across 48,700 acres. NPS, Environmental Assessment of Alternatives for Managing the Feral Horses of Assateague Island National Seashore at 7, 28 (2008). Like the TRNP, the Assateague herd pre-dates the park’s establishment and are descendants of domestic stock. Id. at 5, 62. Unlike the TRNP, however, the “feral horse population [at Assateague] is managed, in general, as a wildlife resource.” Id. at 7 (emphasis added). This, of course, flatly undermines the TRNP’s assertion that horses must be “managed as a livestock display” because they “cannot be classified as a native wildlife species” under the agency’s regulations. See Wild Horse EA at 1.

The distinction between “livestock” and “wildlife” is more than semantics. By classifying wild horses as livestock, the TRNP has denied these animals certain protections under its agency-wide Management Policies, a document that sets forth “mandatory” management 7 directives. While this document appropriately delineates “native” from “nonnative” species,3 even the latter benefit from certain safeguards against their removal from a given park. For example, where NPS seeks to remove nonnative species, it must ensure their removal is “prudent and feasible,” and that the given species satisfies any number of removal criteria, including that it “disrupts the genetic integrity of native species” or “disrupts the accurate presentation of a cultural landscape.” Id. at 48. Assuming a nonnative species meets these removal criteria, NPS’s Management Policies dictate that the responsible park engages in a comprehensive planning process—including “public review and comment, where appropriate”—to achieve this goal. Id.

The TRNP’s removal of wild horses has not complied with any of these directives. As explained, Advocates’ recent FOIA request sought records “regarding how NPS determines that an excess number of horses exist on the TRNP such that roundups and removals of those horses are necessary.” The dearth of responsive records indicates that the TRNP’s roundups are, at best, conducted on an ad hoc basis and lack any coherent guiding principle. For example, the agency’s response indicates that it is not tracking the kinship of the horses under its jurisdiction, or monitoring the herd for potential impediments to their reproductive capacity or their genetic diversity (e.g., risks associated with inbreeding).

Instead, the Park’s management regime is evidently driven by a singular desire to achieve a herd size that the agency itself has deemed “somewhat arbitrary” in its now-obsolete Wild Horse EA, id. at 6. The Park owes more to the public under federal law and its own regulations and policies. At the very least, it must explain why its decision to manage wild horses as livestock rather than wildlife is a rational reading of the agency’s implementing regulations. It should also explain why the agency’s removal procedures depart from the mandatory guidance laid out in its Management Policies. Without these explanations, any further roundups and removals predicated on the Park’s counterintuitive regulatory interpretation and/or undertaken without observance of its agency-wide policies are unlawful. See, e.g., Chicago Transit Auth., 607 F.2d at 1289.

Chasing Horses Wild Horse Advocates is committed to advocating for a wild horse management plan and protection for these unique wild horses that call Theodore Roosevelt National Park home!  We are fighting for a management plan that is guided by science especially when it comes to decisions regarding the removal of horses and the administration of birth control.  Many other wild horse management plans have proven to be successful with their science-based plans.  We are asking for the same for this amazing group of wild horses that call Theodore Roosevelt National Park home.

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