Fish and game regulations are primarily determined by the state. Two obvious exceptions are for migratory birds and endangered species. These omissions exist because it would be hard for any state or country in North America to individually manage ducks and geese as they migrate from Canada to Mexico. Similarly, it is hard for states to manage threatened and endangered species when they can’t agree with other states or the federal government on the species’ status. Two other situations where the feds directly manage wildlife are wild horses and marine mammals.
Although these are very different groups of animals, they ended up under the federal management in the same way; they were given protection under a federal law. The Wild and Free-Roaming Horse and Burros Act was passed in 1971 with the stated intent of protecting these animals from being harassed or killed on public land. Nearly the same language for protections was used a year later in 1972, when the Marine Mammal Protection Act was passed.
Given the novelty of direct federal management of wildlife, it was not surprising when the Wild Horse and Burro Act was challenged all the way to the U.S. Supreme Court in 1976. That case, Kleppe v. New Mexico, was based on the state removing wild burros that were keeping cattle from using a water hole on public lands. The high court ultimately found that Congress’ ability to manage public lands “includes the power to regulate and protect the wildlife living there.”
The legal protection of these animals are causing concerns when it comes to the management of other species. An increasing number of horse and burros are putting at risk many native species as well as cattle ranching in arid rangelands. Seals are causing problem because they swim up the Columbia and Willamette River to feed on endangered salmon and steelhead. Some argue seals have always done this. The dams in these rivers, however, make seals much more efficient predators as they concentrate the fish and provide coaancrete footings as safe areas to rest. The simplest theoretical solutions for both animals would be to allow some of them to be harvested or otherwise removed from the population.
Lethal control of horses and burros, which is favored by several states — including Utah — will be difficult, as many people rightly venerate these animals. Currently the federal government is capturing horses and allowing individuals to adopt them. In implementing this program, the Bureau of Land Management spends $ 50 million a year to hold 40,000 of these animals in corrals and manage 70,000 in the wild. This untenable situation makes it clear the states and the federal government need to work together to provide the scientific and legal rational for a better and cheaper wild horse and burro program.
In contrast, the states and tribes have worked with the federal government for a permit to remove up to 920 seals from the lower Columbia River. These animals are captured on artificial docks that serve as traps, then removed from the river and euthanized. While there have been outcries concerning this program, it has withstood legal challenges as states and the federal government worked together to help judges understand what is at risk. In this situation, all parties agree that these seals were consuming too many adult salmon and steelhead.
In observing wild horses, it is easy to see their majesty, but not as easy to see their impacts on arid rangelands. An additional contradiction is that while individuals and states want horses removed, they often want cattle permitted to graze in the same areas to remain. While this problem is difficult, a solution can be achieved if the federal government, states, ranchers and environmentalists work together to define what these landscapes should look like. Instead what you often hear are arguments at the extremes. It has been shown time and again that solutions forged under political fires don’t stand the test of legal challenge.
While it is nice to think these types of issues will resolve themselves without our intervention, the reality is animal populations have long followed boom and bust cycles. Now that humans play such an outsized role in reshaping outcomes in nature, we can favor certain species over others. Wild horses, burros, and seals all had depressed populations 40 years ago when they were given federal protection; now they are thriving. Without the states, tribes and federal managers stepping in and managing conflicts related to these species together, we may start to lose grasp of the ability to wisely manage the lands and animals we cherish — regardless of who we decide to blame.