Pulling it all Together – Part 4

Hello and Happy Monday to everyone. 

How is your comment letter coming along?  Please continue to send us your questions about your comment letter to info@chwha.org.  Also, if you have already sent in your comment letter and would like us to share it on our website, we will make a page for the comment letters shared with us during this round of comments. 

REMEMBER: Your comments ONLY count when you enter them on the Park’s Planning website: https://parkplanning.nps.gov/document.cfm?parkID=167&projectID=105110&documentID=132035 or when you send it by mail to: Superintendent, Theodore Roosevelt National Park, P.O. Box 7, Medora, ND 58645.

THAT is the BEST way that you can help the wild horses of Theodore Roosevelt National Park right now.

We know that Theodore Roosevelt National Park listed a series of National Park Service polices that justify their need to remove the wild horses from Theodore Roosevelt National Park.  We know that there are also polices that allow horses to stay on National Park Service lands because there is not a concerted effort to remove the 1,000 wild horses from ALL National Parks – just the 200 at Theodore Roosevelt National Park.

The Park also stated in their Draft EA:

1.2.2 Relationship to Existing Laws and Policies

There is no legislation directing the NPS to maintain horses or cattle in the Park, and horses on NPS units do not fall under the jurisdiction of the Wild Free-Roaming Horses and Burros Act, which only applies to horses on lands managed by the US Forest Service and the Bureau of Land Management.

That seems to be a shift from what they told us at the Civic Engagement Meeting in January of this year when they were emphasizing all of the policy violations as a result of allowing the horses to stay in the Park.

For the purpose of this blog, I wanted to share some of the laws/policies/regulations that Chasing Horses Wild Horse Advocates cited in our last comment letter for the comment period that ended in January 2023. The purpose of this is to show you that there are also laws that work in our favor.  These are also things that you can cite in your comment letter. 

Thank you for your support and have a great week!

NPS, and the National Park System as a whole, were established by Congress in 1916 through the Organic Act. See 54 U.S.C. §§ 100101-104909. Unlike other federal land management statutes 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 resources found therein. Cf. 43 U.S.C §§ 1701(a), 1702(c) (the Federal Land Policy and Management Act’s multiple-use mandate). Often referred to as NPS’s “non-impairment mandate,” Section 1 of 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.

In recognition of the Organic Act’s strict focus on preservation, NPS’s regulations implementing the Organic 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). NPS regulations define “wildlife” to mean “any member of the animal kingdom and includes a part, product, egg or offspring thereof, or the dead body or part thereof, except fish.” Id. § 1.4 (emphasis added).1 The TRNP, specifically, includes wild horses in its definition of “wildlife” for purposes of its prohibition against “Disturbing Wildlife” in the Park. See TRNP, Superintendent’s Compendium of Designations, Closures, Permit Requirements and Other Restrictions Imposed Under Discretionary Authority (Aug. 23, 2022) (“Except for inadvertent or casual encounters with wildlife in areas where traffic is required or essential, willfully approaching, remaining, viewing, or engaging in any activity within 25 yards to bison, elk, and feral horses or closer to any other wildlife including nesting birds, or within any distance that disturbs, displaces, or otherwise interferes with the free unimpeded movement of wildlife, or creates or contributes to a potentially hazardous condition or situation.” (emphasis added)) [hereinafter “Superintendent’s Compendium”].

As outlined above, and consistent with the Organic Act’s nearly singular focus on preservation of National Park resources, NPS’s regulations protect from take “any” animal within the boundaries of a NPS-system unit—regardless of whether those animals are native or not. 36 C.F.R. §§ 1.4, 2.1, 2.2. The only exception to that regulatory scheme relevant here is the Park’s carve-out for animals that have been properly “designated” as “livestock” under 36 C.F.R. § 2.60. Hence, if the Park’s wild horses are not “livestock,” they must be considered and managed as “wildlife” under the Park’s controlling regulations. Cf. Wild Horse EA at 1 (“Since the horses cannot be classified as a native wildlife species, they are managed as a livestock display . . . .”).

40 C.F.R. § 1508.27(b)(4) – This factor requires the preparation of an EIS whenever “the effects on the quality of the human environment are likely to be highly controversial” (emphasis added). As the Park is well-aware, its management of wild horses has been a controversial subject throughout the Park’s existence. Indeed, the Park itself has acknowledged that the management of these animals generates a significant amount of “controversy” due to its cost. See, e.g., McLaughlin Report at 174. Indeed, the Park’s past attempts at eliminating the herd have only been stopped in response to “public outcry.” Id. at 120; see also Wild Horse EA at 2 (“[D]ue to the strong local pressure and unfavorable publicity against the proposal, the decision was made to maintain a maximum 40-horse herd.”); Concurrent Res. No. 4014, 68th Leg. Assemb. (N.D. 2023) (“A concurrent resolution urging the Secretary of the Interior and the Director of the National Park Service to modify its proposed livestock management plan, and to continue to allow for interpretative, cultural, and historical 17 purposes a herd of longhorn steers in the North Unit of the Theodore Roosevelt National Park and the presence of a wild horse herd in the South Unit of the Theodore Roosevelt National Park.”).7 Furthermore, experts with relevant expertise in the management of wild horses, including Milton Frei and Gus Cothran, as well as experts regarding these specific wild horses, including CHWHA and the American Wild Horse Campaign, have taken issue with the Park’s management regime and disputed the scope and extent of the effect of the Park’s proposal on these wild horses, on the cultural and historic value they provide to the Park, on Park users who derive significant benefits from observing these horses, and on local tourism driving by Park users with strong ties to these horses. Thus, unless the Park is able to “resolve [this] serious criticism,” it must prepare an EIS for the LMP. See Standing Rock, 985 F.3d at 1043 (“Indeed, an EIS is perhaps especially warranted where an agency explanation confronts but fails to resolve serious outside criticism, leaving a project’s effects uncertain.”); see also Nat’l Parks, 916 F.3d at 1085-86 (“The question is not whether the [agency] attempted to resolve the controversy, but whether it succeeded.” (emphases added)).

40 C.F.R. § 1508.27(b)(6) – This factor is triggered whenever “the action may establish a precedent for future actions with significant effects or represents a decision in principle about a future consideration.” The Park’s decision here to remake the fundamental character of the Badlands by rounding up and removing all 7 Concurrent Res. No. 4014 is awaiting a vote by the full North Dakota Legislative Assembly. 18 wild horses is nothing if not precedential. The wild horses have inhabited the Badlands since well before the Park was established and the Park has never before eradicated an entire charismatic species simply because it has been deemed insufficiently “native.” As discussed below, the Park’s decision to amend the TRNP “purpose statement” to reflect this new attitude also represents a remarkable shift in Park policy, one which inexplicably prioritizes one Park value (native inhabitants) over another (the Park’s preservation of a historic landscape). Assuming this policy shift was not arbitrarily engineered to encapsulate just wild horses, it promises significant management changes for other Park wildlife, including the California bighorn sheep, which, the Park admits, is not native to the Badlands and has been bred for inclusion in the Park. See, e.g., NPS, General Management Plan at 41 (discussing the extinction of native “Audubon bighorn sheep” and their replacements, the “California bighorn sheep,” which were initially selectively bred in Park “enclosure[s]”). In addition, the Park’s radical reinterpretation of the Organic Act and its implementing regulations to characterize non-domesticated wildlife as “livestock” sets an ominous precedent that allows other National Park System units to eradicate wild horses or other wildlife that fall within this broad new definition of livestock.

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