Laws are passed by both branches of Congress and signed by the President. Once a bill is signed by the President (or his veto is overridden by both houses) it becomes a law and is assigned an official number.
Regulations are issued by U.S. Federal government Departments and Agencies to interpret and implement laws passed by Congress. When Congress passes a law directing an agency to perform an action, the Department usually issues a regulation further interpreting the language in the law.
On December 15, 1971 the Wild Free-Roaming Horses and Burros Act became law when it was published in the federal register as Public Law 92-195. On December 18, President Nixon signed the Act in a public ceremony.
The next step was to determine where this new law was applicable and which federal agencies would be responsible. The Bureau of Land Management (BLM) and United States Forest Service (USFS) are the only land management agencies where jurisdiction for the Act was established (National Parks, Fish and Wildlife, etc. would not need to establish regulations to carry out the new law).
Then a series of regulations were formalized. Regulations go through a draft phase where the public can comment prior to regulations being finalized. We have been trying to locate the comments period for regulations created after the Wild Free-Roaming Horses and Burros Act (WFRH&B Act) was passed and have had to file a Freedom of Information Act Request (FOIA) as we cannot find the draft process in any public database. (More information on when issuing regulations is necessary, see The Administrative Procedure Act (5 U.S.C. 552).
The final published regulation holds the force and effect of law
The following are among the regulations currently listed in the Code of Federal Regulations (CFR) after the WFRH&B Act was signed:
The objectives of these regulations are management of wild horses and burros as an integral part of the natural system of the public lands under the principle of multiple use; protection of wild horses and burros from unauthorized capture, branding, harassment or death; and humane care and treatment of wild horses and burros.
(a) Wild horses and burros shall be managed as self-sustaining populations of healthy animals in balance with other uses and the productive capacity of their habitat.
(b) Wild horses and burros shall be considered comparably with other resource values in the formulation of land use plans.
(c) Management activities affecting wild horses and burros shall be undertaken with the goal of maintaining free-roaming behavior.
§ 4710.3-1 Herd management areas.
Herd management areas shall be established for the maintenance of wild horse and burro herds. In delineating each herd management area, the authorized officer shall consider the appropriate management level for the herd, the habitat requirements of the animals, the relationships with other uses of the public and adjacent private lands, and the constraints contained in § 4710.4. The authorized officer shall prepare a herd management area plan, which may cover one or more herd management areas.
§ 4710.3-2 Wild horse and burro ranges.
Herd management areas may also be designated as wild horse or burro ranges to be managed principally, but not necessarily exclusively, for wild horse or burro herds.
§ 4710.5 Closure to livestock grazing.
(a) If necessary to provide habitat for wild horses or burros, to implement herd management actions, or to protect wild horses or burros, to implement herd management actions, or to protect wild horses or burros from disease, harassment or injury, the authorized officer may close appropriate areas of the public lands to grazing use by all or a particular kind of livestock.
Once a law the Act passed and codified (regulations), agencies created direction for staff through a series of Memorandums, manuals and handbooks. Memorandums were issued annually to direct employees in how the current Presidential Administration interpreted the law. Today Internal Memorandum (IM) come in two forms: interim and permanent (so they do not have to be issued annually, cutting down paperwork but increasing risk of continuation of failures to interpret correctly at the field level).
The BLM finalized the WHB handbook in 2010.
If all of the above has been done, why are things so bad? Why do we never see regulations carried forward (like getting rid of livestock in HMAs now that climate change has hit)?
Earlier this week we published a piece that delved into a bit about what the world looked like in 1971 and the challenges faced by Velma Johnston (“Wild Horse Annie”).
On social media and in our inbox we received numerous messages where people disparaged the Act (and Velma).
We thought this was a good moment to point out that if the Act did not pass, we probably would not have more than 5 places in the U.S. where horses and burros could be seen on public lands; the 5 ranges declared prior to the passage of the Act.
The Act was imperfect, but was a massive step in gaining long lasting protection. What failed, was the processes that came after. What failed, were land managers intent on finding ways to keep livestock and mining happy through the minimization of the authorities granted to them through the Act.
A manipulation of the regulations to suit a select few ensued immediately after the act passed and continues today.
One example of advocacy today:
The BLM is in process of re-writing the handbook for wild horses and burros. There was no scoping period. There has been no draft out for comment.
Will the BLM say that the public cannot give input on the new manual/handbook? In 1997 they presented a draft handbook on livestock grazing for public comment before finalizing the handbook in 2009. In 2021, they issued a solicitation for public comments to change the rules for renewable energy. Will the new handbook/manual coincide with new legislation that predominantly rewords the same authorities that already exist and bow to the “Path Forward?” Have there been “invitation only” meetings about these changes that the BLM will cite as public input and not open the process to the actual public? If these things are true, are you ready to push back or will you inadvertently support those “select few?”
Part of advocacy today is to find where law and process are being manipulated to suit a select few. This job falls to anyone trying to protect a wild thing or wild place. Our wild places are targeted by profit driven enterprise… and always will be. The task of advocacy to preserve the wild is not to come up with more modern tools to allow the status quo to continue. If the intention is preservation, then we need to commit to an understanding that each victory is a stepping stone, not an end.
Velma did not fail. But she did leave tasks undone to those that come after her. If you see failure in the Act and want to denigrate? Denigrate those that came after her… but learn more about the history of advocacy, the processes and where those failures sit, first.
Better yet, look to see how you can work to turn the word “failure” itself into a new term: a battle still being fought. Look to see who is fighting that battle and what you can do to help.
We do not make progress by tearing down the progress made by those that came before us.. Progress is made by learning from them and building on it.
At the end of every year we like to add attribution to our pieces so you can see “WHE is.” If an article has no attribution on the website throughout the year, it was penned by our founder that serves as a backbone for our small org. and she usually provides no signature line. Signature lines are added to show appreciation for our volunteers and guests. Leigh has been in advocacy for equines for nearly 30 years and solely working for our wild ones for well over a decade.
Happy Anniversary to the 1971 Act. It is a happy anniversary and testament to the fortitude of those that came before us and ensured that today we actually have something left to fight for.
We need your support to stay in the fight. Thank you.
Categories: Wild Horse Education
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