Wild horses, feckless bureaucrats, and Civics 101

Like most hot-button issues, this one began with a tragedy. In the summer of 2014, six horses died of dehydration at Mesa Verde National Park after the park superintendent, citing “standard protocol for wildlife management on public lands,” blocked their access to available water. The resulting outrage and protests prompted park officials to seek public comment on how best to round up and remove the horses, which they labeled “trespass livestock.” Some 9,000 respondents urged the park to retain and humanely manage the horses, but park officials contend that “the park’s only legal authority is to remove trespass livestock.”

The battle lines have been drawn. Park officials insist that their hands are tied. Horse advocates respond that the wild horses on Mesa Verde predate the park’s formation in 1906, and that government bureaucrats simply don’t wish to be saddled with the burden of actively managing a unique and historical park resource.

So which side is right? Because the question has both legal and moral dimensions, a review of the applicable law and regulations makes for a good starting point, beginning with a quick refresher in Civics 101.

Federal statutes are bills that have been passed by both houses of Congress and signed into law by the president. The only federal statute that addresses the question of horses in Mesa Verde National Park is found at 16 U.S.C. 117c and requires that the Secretary of the Interior “make and publish such general rules and regulations as he may deem necessary and proper for the management and care of the park . . . and for protection of the animals and birds in the park from capture or destruction, and to prevent their being frightened or driven from the park.” Because horses – whether you choose to label them wild, feral, or something else – are indisputably “animals,” this statute, on its face, protects the horses of Mesa Verde to the extent they were present within the park when the statute was enacted in 1928.

Undaunted, park officials cite a federal regulation, 36 CFR 2.60, as the basis for their position that horses must be removed from the park. That regulation, however, simply prohibits the “running at- large, herding, driving across, allowing on, pasturing or grazing of livestock of any kind in a park area . . . except as specifically authorized by Federal statutory law,” and establishes procedures for the impoundment of trespassing livestock. But if the horses were indeed present on Mesa Verde when the park was established in 1906 – a fact that nobody disputes – then they cannot by any contortion of language or logic be deemed to have “trespassed” into the park and do not, therefore, fall within the regulation’s purview.

Regulations, moreover, are subordinate to statutes, and the Supreme Court has long held that when a federal regulation conflicts with or contravenes its enabling statute, it is to that extent void. Chevron USA, Inc. v. NRDC, 467 U.S. 837, 842-4 (1984). Here, the applicable federal statute mandates that park officials manage and protect all animals that were living within the park as of 1928. To the extent park officials try to strain the cited regulation into requiring the expulsion of such animals, then the regulation contravenes its enabling statute, and is void.

Nor are the park’s positions even coherent. They invoke “standard protocol for wildlife management on public lands” as justification for denying the horses water, while at the same time disputing their status as “wildlife.” If the horses are, as park officials contend, “trespass livestock,” then the superintendent would be obligated under the very regulation he cites to dispose of the horses “in accordance with applicable Federal and State law.” The applicable state law – Colorado’s 35-46-106 – makes it the duty of “any person who takes any animal into custody [as trespass livestock] to feed and care for such animals in a reasonable, careful, and prudent manner and keep the same in as good order and condition as when taken into custody by such party.” As six dead horses attest, the park has done neither.

Which brings us, finally, to small-c civics – the Aristotelian duties of ethical citizenship – and specifically to the proposition that a governmental agency and its officials who blithely allow animals in their care to horribly suffer and die for the sake of operational expedience deserve neither our trust nor our deference.

I say let’s keep the wild horses on Mesa Verde, as the law requires, and let’s instead remove those feckless bureaucrats who would do violence to either.

Chuck Greaves lives and writes in McElmo Canyon. Visit him at www.chuckgreaves.com.

From June 2015.