Wild Horse Herds – A Little Law – Who Owns Them?

15 May

eye of Babe

“Connecting with the wilderness allows us to live in the flow of a meaningful, joyful life. Embracing this state of connectedness or oneness with other living beings including animals, as opposed to feeling an “otherness” or “separateness” brings a sense of harmony and enables us to be at peace with oneself and the world.” — Sylvia Dolson, Joy of Bears

The constant destruction from prolific human obnoxiousness toward America’s wildlife and environment somehow has become acceptable conduct. Similar is the term, Acceptable Animal Abuse, which relates to economic profits? How odd such a vial and disgusting situation as this has also become a sign, a signature if you will, of our times.

Humane treatment of animals, and people for that matter, is for all intents and purposes, thrown out the window by today’s politicians and business people! What had caught my eye the other day was a powerful statement, ironically, how true it is – “When did ignorance become a Perspective?”

Here is examined the Legality of Ownership of America’s Wildlife. These explanations and Legislative Laws are what is not only being ignored today, but new actions set in place that allow criminal conduct to take place, as you will read below, contradict directly Constitutional Guidelines to do so!

Yes, our government is in contempt, with no checks-an-Balance System in place to stop them! Especially in regard to America’s Wild Horse Herds and the outright destruction of America’s Heritage – the American Wild Mustang! That is, unless – Unless honest folks are elected into legislative office that are responsible enough to represent the Voters, the Taxpayers, the American’s of this land of ours.


Federal actions must be authorized by a constitutional clause (Maltz 1981, McGinley). For wildlife legislation, the main clauses are the treaty clause (U.S. Const. Art. I, sec. 10), property clause (U.S. Const. Art. IV, sec. 3), and commerce clause (U.S. Const. Art. I, sec. 8). In addition Congress can direct federal agencies to modify agency actions to protect wildlife — TO PROTECT WILDLIFE!

For Congress to pass legislation, a constitutional clause must exist justifying its action. For example, the Migratory Bird Treaty Act of 1918 (16 U.S.C. ? 703) and the Endangered Species Act of 1973 (16 U.S.C. ?? 1531-1543) use the treaty clause as a partial justification. Statutes created under the treaty power can control any wildlife species as long as individual rights and liberties are not contravened (Coggins 1980). The property clause is also important. Under it the federal government has the power to control its own land. Also, the federal government can control activities that take place elsewhere if they have an impact on federal land.

For example, Devil’s Hole National Monument was created to protect the Devil’s Hole pupfish (Cyprinodon diabolis). A Nevada rancher drilled wells on private land nearby as authorized by a state water permit. When pumping began and the water in Devil’s Hole began to drop, the rancher was required to reduce his pumping rate so that federal property was not harmed. This preserved the habitat and the pupfish (United States v. Cappaert, 426 U.S. 256 [1976]).


Kleppe v. New Mexico (426 U.S. 529 [1976]), which upheld the Wild Free Roaming Horses and Burros Act (16 U.S.C. ?? 1331-1340), was also a significant decision. New Mexico had a law (N.M. Stat. Ann. ?? 47-14-1 et seq.) that allowed feral horses and burros to be rounded up and sold at auction. In accordance with this state law, some wild burros were rounded up because a rancher claimed they were molesting his cows. The land involved was federal land with the rancher possessing a grazing permit. The U.S. Supreme Court held that the burros were federal property, just like the land.

Since activities off federal property can be controlled, animals that touch federal land at some time during their life may be federal property no matter where they go. A better argument limits this concept to animals that use federal land as an essential part of their habitat. In this view, land and animal are part of the same ecological system. Harm to one can cause harm to the other.

The commerce clause is perhaps the most far reaching of the 3 clauses. “The scope of the commerce power has become virtually unlimited” (Coggins 1980:327) with the U.S. Supreme Court decision in Hughes v. Oklahoma (441 U.S. 322 [1979]). Horse Advocates are caught in this realm of expanded legislative power, generic attributes, and unsettled discrepancies’ harmful to wildlife . . . a point for another article. . .

The final extension of constitutional power was taken in this case, and wildlife species were declared articles of commerce. Species that are valuable for hide, hair, meat, or oil are obviously articles of commerce because these commodities can be sold. Species that cross state boundaries or are found in “navigable” waters are also articles of commerce under traditional constitutional interpretations. The same is true for species that might attract out-of-state visitors. “In short, while a few species may appear to be sedentary, lacking in economic value, and uninteresting, the overwhelming majority of American fauna clearly are (sic) in or affect interstate commerce and are thus subject to federal regulation” (Coggins 1980:328).


The real question is not who owns wildlife but who has the power to manage it. According to the U.S. Supreme Court the state ownership doctrine has always been a myth (Hughes v. Oklahoma [1979]). Interesting is the fact, to say the least, when one acknowledges states giving up their non-private Land Rights, in reality to be accepted within the Union of the United States, when each had become a state – well referenced.

In the past few years the U.S. Supreme Court has been asked to determine which level of government has the power to manage wildlife. Because wildlife is not considered individual private property until reduced to possession, the status of wildlife changes when an individual captures or kills it legitimately and legally, and unless protected — Until that point, wildlife is considered the common property of all the people.

Article 5 of the Constitution can also be implemented here; constructively and figuratively, via enough signatures upon a petition – which represents each state involved where Federal Land / Public Land is located and under controversy – definitely intimidating to legislators of today (Open Platform Debate rears its head again here), scrutiny.

When wildlife does cross state boundaries, they are then considered legally, and legislatively, common property of all the citizens of the United States. One has to wonder if the Supreme Court Justice’s read this material, especially when compounded by the obvious absence of a humane-deduction toward Wildlife apparently excluded from their process.

Often the actual Legislative Law becomes void, within a non-legislative action. This is beyond the scope of the Supreme Court, in accord with the Constitution, as to actually generate legislation — to set Legislative Law — is the act to be accomplished by those Voted by American’s to do so!

Although, the fact is Congress has asserted federal power over some migratory species, and other species in danger of extinction. American’s interests in this circumstance are clear. National interest is also clear on federal land which is the common property of all the people of the United States, not just people in the states where the land is found.

The flawed aspect — In the past decade, the U.S. Supreme Court has interpreted the Constitution to justify existing federal legislation. In doing so, it has made federal power over wildlife unlimited. But, even though the power exists, Congress does not have to exercise it.


The political process – and not law — balances state and federal wildlife issues within Congress. If there is national interest in a wildlife issue, the issue should be debated at the national level and not relegated to state resolution.

The process of a state, for example, using coercion toward a Federal Agency to promote the Wild Horses be vacated from Federal Lands / Public Lands, can and should become a Constitutional Violation, and an issue whereas the American people decide definitely through adequate representation by the Senate and Congress! Note — I state adequate representation of the American Public, no special interest or lobby groups involved!

The political process works, in most instances, to do this when an honest political process is in office and representing American’s appropriately, and within a responsible manner and degree of Law combined with truthful information to make proper decisions adequately.

With wildlife management, it is politics and not “law” that controls which level of government is the manager. Although the federal government has power, the Constitution also allows state control if the federal government has not acted in an appropriate manner. It also allows, under Article 5, jurisprudence within the capacity of the general American Public – via holding a Special Convention to do so (see Article 5 of the Constitution).

A shared and diverse management paradigm was intended in the Constitution — a kind of cooperative federalism enhanced by taxpayer and the general public’s involvement (again not lobby groups and special interests only). The states must accept federal power and develop management plans that consider the federal role. Failure to cooperate may allow political forces to increase the federal role through additional legislation.

Although the current administration emphasizes a reduction in the federal role, the federal influence continues in opposition to any type of reduction what so ever. This will likely remain, and truthfully, unless the federal environmental laws of the 1970s are all repealed and all federal land is sold, the legality of control remains legally defined, but most often ignored.

ANONYMOUS. 1971. Vanishing wildlife and federal protective efforts. Ecol. Law Q. 1:520-560.

COGGINS, G. C. 1980. Wildlife and the Constitution: the walls come tumbling down. Washington Law Rev. 55:294-358.

AND D. L. SMITH. ___________. 1975. The emerging law of wildlife: a narrative bibliography. Environ. L aw 6:583-618.

ENVIRONMENTAL LAW INSTITUTE, 1977. The evolution of national wildlife law. Council on Environ. Quality, Washington, D.C. 485pp.

EULE, J. N. 1982. Laying the dormant commerce clause to rest. Yale Law J. 91:425-485.

FIELD, M. E. 1984. The evolution of the wildlife taking concept from its beginning to its culmi-nation in the Endangered Species Act. Houston Law Rev. 21:457-503.

LUND, T. A. 1975. British wildlife law before the American Revolution: le ssons from the past. Mich. Law Rev. 74:49-74.
___________. 1976. Early American wildlife law. New York Univ. Law Rev. 51:703-730.

___________. 1980. American wildlife law. Univ. Califor-nia Press, Berkeley, Calif. 179pp.

LUNDBERG, C. 1978. Birds, bunnies and the furbish lousewart-wildlife and mining on the public lands. Rocky Mt. Mineral Law Inst. 24:93-137.

MALTZ, E. M. 1981. How much regulation is too much-an examination of commerce clause juris-prudence. George Washington Law Rev. 50:47- 89.

MATTHIESSEN, P. 1964. Wildlife in America. Viking Press, New York, N.Y. 304pp.

MCGINLEY, P. C. 1983. Federalism lives! Reflections on the vitality of the federal system in the context of natural resource regulation. Kan. Law Rev. 32: 147-163.

PALMER, T. S. 1912. Chronology and index of the more important events in American game protec-tion. U.S. Biol. Surv. Bull. 41. 62pp.

TARLOCK, A. D. 1983. National power, state resource sovereignty and federalism in the 1980’s: scaling America’s magic mountain. Kan. Law Rev. 32: 111-145.

TREFETHEN, J. B. 1961. Crusade for wildlife-high-lights in conservation progress. Stackpole Co., Harrisburg, Pa. 377pp.

TUSHNET, M. 1979. Rethinking the dormant com-merce clause. Wis. Law Rev. 1979:125-165.

VARAT, J. D. 1981. State citizenship and interstate equality. Univ. Chicago Law Rev. 48:487-572.


Posted by on May 15, 2014 in Uncategorized


4 responses to “Wild Horse Herds – A Little Law – Who Owns Them?

  1. EponaSpirit

    May 15, 2014 at 11:03 pm

    Reblogged this on Pass the SAFE Act!.

  2. Louie C

    May 16, 2014 at 7:27 am


    An analysis of the Wild Horses Act and the relevant case law will demonstrate that the prevailing method used to eliminate the “straying problem”-extensive governmental removal of horses from public and private lands-COUNTERMANDS the protective purposes of the Act and of related public lands statutes.

    While the constitutional basis for § 1334′s regulation of conduct on private lands remains an open issue, several persuasive theories suggest that Congress was EMPOWERED TO EXTEND FEDERAL CONTROL BEYOND PUBLIC BOUNDRIES.

    Section 1334 of the Wild Horses Act provides landowners an
    inexpensive and convenient method of removing straying horses from their
    private property.

  3. Louie C

    May 16, 2014 at 7:35 am

    Straying Wild Horses and the Range Landowner:
    The Search for Peaceful Coexistence
    Alfred W. Buckley
    William W. Buckley

    In 1971 Congress passed Public Law 92-195, the Wild Free-Roaming
    Horses and -Burros Act,’ to preserve a vanishing symbol of American
    pioneer heritage.’ Before this statute was enacted, wild horses and burross
    were in danger of extinction.4 Today the success of the Act has prompted
    much controversy as to whether wild horses overpopulate the public
    rangelands6 in the Western United States.

    Private landowners adjacent to federal regions often complain that wild horses “stray” onto their parcels and consume their forage and water.
    While owners have the right to use and enjoy their property free from incursions,
    Congress intended protection of a living emblem of the Nation’s spirit to be of paramount
    importance. 9

  4. hoofhugs

    May 17, 2014 at 3:47 am

    Wonder who the New Mexico rancher was whose nations resulted in this suit? wonder if he is geographically or personally connected to the Baca Ranch? This could be a point of intersection in the threads that I have been following based on the 1993 OTA Report on Harmful, Non-Indigenous Species to the United States


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