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Thursday, June 19, 2014

Historic Horses


 Friends of Animals (http://friendsofanimals.org/about_us/who_we_are ) and the Cloud Foundation (http://www.thecloudfoundation.org/) have filed a petition with the Secretary of the Interior seeking to have a segment of North America’s wild horse population listed as an endangered species (See http://www.thecloudfoundation.org/images/pdf/Final_Petition_Complete_As_Filed.pdf ).  Part of the rationale for listing is that the Bureau of Land Management (BLM) is allegedly mismanaging wild horses on public lands, failing to protect their habitat and removing them from their traditional ranges.

Wild horses are certainly “cultural resources.”  They have played important roles in the history of the West, and particularly in the histories of many Indian tribes.  They have iconic status in popular depictions of the West, and are treasured by many outdoor and equestrian groups.  Yet when BLM undertakes an action aimed at managing them – for example a roundup – it doesn’t do much (if anything) about compliance with Section 106 of the National Historic Preservation Act (NHPA).  Its people don’t sit down with groups that value wild horses and negotiate memoranda of agreement stipulating how a herd’s cultural values will be protected.  It doesn’t seek the comments of the Advisory Council on Historic Preservation (ACHP).

Why not?

Because horses, and animals in general – however obvious they may be as cultural resources – are not eligible for the National Register of Historic Places (NRHP), and Section 106 of NHPA requires agencies only to consider the effects of their actions on places included in or eligible for the NRHP.  So BLM needs to address the effects of its wild horse management under the National Environmental Policy Act (NEPA), but not under NHPA – except to the extent that such management may churn up archaeological sites or other places eligible for the NRHP.

That, at least, is a gloss on the government’s party line.  But does it make sense?

Well, that depends on your perspective.  The NRHP is, after all, the National Register of Historic Places, so the first question is: is a horse a place?  Most of us, most of the time, would probably say “no.”  But when one is sitting on a horse, is one not in a “place?”  Or what if one is a flea, living its entire life on a horse’s belly; is the horse not a “place” from the flea’s perspective?

More to the point, the National Park Service divides the world of historic properties up into “districts, sites, buildings, structures, and objects.”  In 2005, the District Court for the Northern District of California raised the question of whether an animal could be defined as an “object.”  The case at hand was Okinawa Dugong v. Rumsfeld[1], dealing with a proposed base on Okinawa that would, if built, threaten the habitat of the Okinawa Dugong, an iconic animal listed in Japan’s equivalent of the NRHP.  The court mused:

Defendants contend that a wild animal cannot qualify as a “property” and that there is no indication in the NHPA (National Historic Preservation Act) and its amendments, the accompanying legislative history, the implementing regulations and guidelines, or case law that Congress “sought to expand the NHPA’s statutory coverage in order to protect or preserve wild animals.”  See Def.’ Mot. At 3, 13.  “Wild animals” fails to describe the relevant group of animals at issue here, namely those with special cultural significance protected under foreign historical preservation laws which are deemed “equivalents” of the National Register of Historic Places.  Taking defendants’ point, nonetheless, very little precedent exists governing the question of whether a living thing can constitute a property eligible for the National Register.  The decision of the one district court that has dealt with the issue undermines defendants’ argument that the dugong is automatically disqualified.  In Hatmaker v. Georgia Department of Transportation, 973 F. Supp. 1-47 (M.D. Ga. 1995), plaintiffs sought a preliminary injunction against continued construction of a federally-funded road widening project that involved destruction of an oak tree of significance in Native American history.  The court held that the tree was at least potentially eligible for placement on the National Register and granted the preliminary injunction.  Id. At 1056-57.  In a subsequent case, in which the Department sought to have the injunction dissolved, the court again rejected the defense’s argument that an unaltered tree could not qualify for the National Register.  See Hatmaker v. Ga Dep’t of Transp. 974. Sup. 1058, 1066 (M.D. Ga. 1997).  In assessing the applicability of the statute, the court emphasized the verifiable nature of the contested object’s historic qualities. Id. At 1067.

Hatmaker is analogous to the present case. While animals obviously differ from trees, their distinguishing qualities are not significant under the plain language of the statute.  The dugong may, like a tree, fall under the category of “object” as “a material thing of functional, aesthetic, cultural, historical or scientific value that may be, by nature or design, movable yet related to a specific setting or environment.” 36 C.F.R. § 60.3(j)[2].

To the best of my knowledge, NPS has never addressed this question as a matter of policy.  If a tree can be eligible for the NRHP, why cannot a horse?  Or an eagle, a whale, or, say, a population of animals like a herd of horses or a school of fish?

In practice, we’ve usually dodged the question – either by ignoring it and taking it as given that “animals can’t be eligible for the NRHP,” or by addressing not the animals per se but their habitat.  In 2004, for example, in a report for the Klamath River Intertribal Fish and Water Commission, I argued that California’s Klamath River was eligible for the NRHP in part as salmon spawning habitat – salmon being of existential cultural significance to the tribes along the river.  Following the lead of then-Yurok Tribal Historic Preservation Officer Tom Gates, I defined the Klamath as a “riverscape” district, with the salmon among its character-defining features[3].  This assessment was accepted by the California State Historic Preservation Officer (SHPO) and the Federal Energy Regulatory Commission (FERC) for purposes of NHPA Section 106 review.  Around the same time, I failed in attempting the same sort of argument with respect to Southern California’s Coyote Canyon and its erstwhile wild horses.  However, that was in the context of a formal nomination to the NRHP, in which it is traditional to pick fatuous nits – and in fairness, the wild horses had been removed from the canyon, so their association with it was a bit tenuous.

Presumably now the U.S. Fish and Wildlife Service (FWS) will be preparing some kind of response to the Friends of Animals/Cloud Foundation petition.  It occurs to me that this response – whatever it is – ought to be a federal undertaking subject to review under NHPA Section 106, because it surely is the kind of federal action that has the potential to affect historic properties.  Particularly if wild horse habitat – to say nothing of the horses themselves – can be defined as NRHP eligible.  I certainly hope that FWS will undertake such review; it might provide a context in which the cultural significance of wild horses -- and other animals -- could be systematically addressed.




[1] OKINAWA DUGONG (Dugong Dugon); CENTER FOR BIOLOGICAL DIVERSITY; TURTLE ISLAND RESTORATION NETWORK; JAPAN ENVIRONMENTAL LAWYERS FEDERATION; SAVE THE DUGONG FOUNDATION; DUGONG NETWORK OKINAWA; COMMITTEE AGAINST HELIPORT CONSTRUCTION, SAVE LIFE SOCIETY; ANNA KOSHIISHI; TAKUMA HIGASHIONNA; and YOSHIKAZU MAKISHI v DONALD H. RUMSFELD, in his official capacity as the Secretary of Defense; and U.S. Department of Defense; U.S. District Court for the Northern District of California, Civil Action No. C-03-4350 (MHP)
[2] Memorandum and Order, No. C 03-4350 MHP, filed March 2, 2005: I.B
[3] King, T.F. First Salmon: the Klamath Cultural Riverscape and the Klamath River Hydroelectric Project.  Klamath River Intertribal Fish and Water Commission, 2004.

3 comments:

Anonymous said...

Couldn't the animals in question be considered as contributing elements to a historic district?
I tried this with a salmon stock (furthest up the fjord chinook run) and a tidal eddy, but because it was part of a tcp the whole thing was denied. Lots of antipathy at the state and industry level to even the consideration of a tcp. Project proponents went with the recommendation despite the SHPO so kind of a win.

Tom King said...

Sure they could, Anon. That's exactly what we did with salmon and other critters (but especially salmon) in the Klamath. So you tried it and it was "denied?" By whom? The SHPO? And because it was a TCP? You must be in Alaska -- such a fine, egalitarian, populist state, with such a responsible, public-spirited SHPO.

Anonymous said...

I'm late to this party, but we have historic districts with trees and other natural features as contributing elements. I agree with you and Anon above that an animal/tree/"non-place" can contribute to a district or to the significance of a TCP, as defining characteristics. I am less sold on the idea that an animal or group of animals can, in and of itself/themselves be considered eligible.

But then again, I consider myself an open-minded kind of guy who, owing to the state in which I work, often find myself pondering the nature of many odd Section 106 eligibility questions (not to mention NR nominations, which I am less directly involved with). So I could see myself considering it...but I'd probably encourage whomever was suggesting it to strongly consider the more traditional option of a historic district with a living, breathing, contributing element.