Legal: Feral Animal on Cumberland Island
By Hal Wright and Rhett Lawrence (initially published 2010)
I. CONCERN OVER FERAL ANIMALS
Animals which were once domesticated but have since reverted to a state of nature are termed to be “feral”. There are feral dogs, cats, cattle, donkeys, and, in the case of Cumberland Island, feral hogs and horses. These animals are not “wild” in the sense that they are part of the naturally occurring fauna. They do, however, display the behavior of what are termed “wild” animals or wildlife. Feral animals are wild by nature, as opposed to domestic, and cannot be claimed in private ownership.
Feral animals, because they do not occur naturally within a particular ecosystem, can drastically alter that ecosystem and in some instances threaten its very existence by harming or eliminating key indigenous plant and animal species. Such is the case on Cumberland Island, where feral hogs and horses threaten the diversity and long term viability of the island’s natural resources.
A. Feral Horses
Feral horse damage to Cumberland Island’s flora and fauna is well documented. Cumberland Island’s feral horses graze heavily on the smooth cord grasses (Spartina alterniflora), the primary plant of the tidal areas on the mainland side of the island. This grazing occurs primarily in the high marsh areas, those least affected by tides. These areas have experienced excessive damage which can be expected to become permanent if the horses are not prevented from using these areas.
Grazing reduces the density of the grasses in the marsh, which in turn negatively affects the marsh’s ability to trap and hold sediments. This inability to trap sediment can lead to increased erosion and damage from storms. Perhaps more detrimental to the marsh than grazing (removal of grass) are the negative effects of trampling. As these large herbivores graze in these areas their hooves compress and churn the soil, thereby impeding the marsh’s ability to regenerate. The overall effect is the loss of the marsh. Marsh grazing also reduces the number of fiddler crabs, a critical species in the salt marsh ecosystem. Fiddler crabs, besides having a positive effect on spartina grass production, are a valuable food source for many of the animals inhabiting this ecosytem. Grazing by horses mirrors competitive behavior of other native grazers.
Feral horse impacts also threaten Cumberland Island’s dune system by reducing dune stabilizing plants such as sea oats. As early as 1975 dune erosion was identified as a serious problem on Cumberland. Measures such as the removal of free ranging livestock (cattle), prohibition of foot and vehicular traffic on the dunes, and erection of sand retention fences have been partially successful in helping stabilize Cumberland’s dune system. However, “recovery is retarded by feral horse impacts.”
Other noted impacts of feral horses on Cumberland include: consumption of all spanish moss within reach; negative effects on amphibians; disruption of nesting sea turtles; disturbance of brooding shore birds; and damage to archeological sites and artifacts.
B. Feral Hogs
Likewise, feral hogs’ adverse effects on ecosystems are abundantly documented, as is their significant impact on Cumberland Island’s natural systems. The feral hogs’ foraging activities, especially rooting activities, have greatly disturbed the island’s various plant communities and plant patterns of succession; interfered with essential nutrient cycling; and in some areas removed dune stabilizing vegetation. Feral hogs have been found to heavily feed on long leaf pine seedlings, affecting the regeneration of this valuable key plant species. The disruption of the island’s flora also directly impacts the island’s fauna dependent on those various plant communities for food, shelter, and nesting. The diet of feral hogs includes both invertebrates (insects, worms, and snails) and vertebrates (snakes, lizards, frogs, salamanders, and turtles). Feral hogs also like eggs, including those of the federally protected loggerhead sea turtle (Caretta caretta) and ground nesting birds.
II. HISTORY OF HOGS AND HORSES ON CUMBERLAND ISLAND
Hogs and horses are not native to Cumberland Island or to North America, but were introduced to the island by humans for use as domestic animals. Hogs have been on Cumberland Island almost since the first arrival of Europeans on the island. It appears that European wild hogs were introduced to many of Georgia’s barrier islands by Spanish explorers and missionaries more than 400 years ago.
As with the hogs, horses were probably first brought to Cumberland Island by Spanish missionaries in the late 1500’s. However, the Spanish were not frequent visitors to the island and the Native Americans living there did not find the horses particularly useful, so it is not thought that the earliest introduction of horses survived.
When the English began settling Cumberland in the mid-1700’s, they also brought horses with them. By 1788, it was reported that there were free-roaming horses on the island. Indeed, General Nathaniel Greene wrote in 1785 of at least 200 feral horses on Cumberland. During most of the 1800’s, the Robert Stafford plantation permitted visitors to capture and purchase small feral ponies called “marsh tackies” for $5 a head. The Staffords themselves kept 30 to 40 horses between 1850 and 1877.
During the Civil War, most horses on Cumberland were removed to assist in the war efforts,20 and after the war “freed men” from Jekyll Island came to the island in search of horse meat. In 1881, Thomas Carnegie bought the Dungeness and Stafford plantations, and his family introduced several horse breeds (including the Tennessee Walker, Quarter horse, Paso Fino, and Arabian) to the existing population for riding and to improve the feral stock. The Stafford plantation earned a small income from the sale of feral hogs and horses throughout the late 1800’s.
From the late 1800’s through the mid-1900’s, many horses of various breeds were brought to Cumberland by island residents for recreational purposes. In 1921, a boxcar-load of horses was brought to the island from Globe, Arizona, and in the 1930’s a list of the Carnegies’ horses contained the names, ages, and pedigrees of 32 horses. As was recollected by a Carnegie descendant, “[t]he horses came right off the range. They were literally wild horses.” By 1939, there were reportedly “large herds of wild horses around Plum Orchard.”
During the 1950’s, Carnegie descendant Lucy Ferguson took hundreds of horses off the island to be sold on the mainland, and many sales and purchases of horses are also reflected in Carnegie documents in the Georgia archives. The National Park Service (NPS) acquired Cumberland Island in 1972 and has not introduced any additional horses. However, even as recently as the early 1990’s, 4 Arabian horses were brought to the island by a resident in order to improve the stock of Cumberland’s horses. The current herd of feral horses found on Cumberland Island shows no evidence of being from a specific historic Spanish bloodline, neither do they represent a unique gene pool from a common ancestral stock.
III. ATTEMPTS TO MANAGE FERAL HOGS AND HORSES ON CUMBERLAND ISLAND
As previously noted, the hogs and horses on Cumberland Island are non-native species which negatively impact the island’s delicate ecosystems. For this reason, NPS has attempted at various times to control or manage their numbers. These attempts have been largely unsuccessful for assorted reasons, as detailed below.
A. Attempts at hog control
After its acquisition of Cumberland Island, NPS initiated a program of live trapping of hogs in 1975. Over the next 10 years, these efforts, combined with public hunts and scientific collection, reduced the feral hog population on the island by more than 1500. But because the program was expensive and labor-intensive, and because NPS had few outlets for removing the trapped hogs from the island, it was apparently discontinued by the mid-1980’s.
The hog population again grew mostly unabated until 1992. In the Spring of that year, NPS entered a Memorandum of Understanding with a commercial hog trapping operation to use a program of both live trapping and dog hunting to reduce the hog population. Due to complaints by island residents and visitors, the dog hunts were stopped after only five days. When the live trapping was ceased two months later, 317 hogs had been removed – 270 by live trapping and 47 in the five days of dog hunts.
NPS uses periodic public recreational hunts and shooting by NPS personnel in an attempt to control the feral hog population. Public hog hunts are conducted five times a year on the island, resulting in the removal of between 80 and 247 hogs per year through 1998. However, because hog reproduction rates are so high, the population has nonetheless continued to grow and spread throughout the island. Currently, they inhabit and impact the entire island.
B. Horse Management Attempts
NPS has so far attempted only once to initiate a program to manage the feral horse herd at Cumberland Island. In 1995, NPS began a public “scoping” process to gauge public sentiment on the need for managing the feral horses and the possible methods for doing so. Based on the information compiled in that process, NPS released a Draft Environmental Assessment (EA) in March 1996 entitled “Alternatives for Managing the Feral Horse Herd on Cumberland Island National Seashore”.
After releasing the EA in March 1996, NPS accepted written comments from the public for 30 days on the range of alternatives and held a series of public meetings to receive further input. However, in the summer of 1996, before NPS could begin taking steps to implement the management plan for Cumberland’s feral horse herd, United States Representative for the First District of Georgia, Jack Kingston – whose district includes Cumberland Island – attached a “rider” to an unrelated federal appropriations bill forbidding NPS from taking any steps for the remainder of the fiscal year to manage or control the horses.
The bill was passed by Congress with the rider intact. NPS was unable to take any action during the next year to manage Cumberland’s feral horses. Representative Kingston’s rider expired in 1997. Since that time, NPS has taken no further steps to manage or otherwise control the island’s horses.
NPS is to release its draft Resource Management Plan and Wilderness Management Plan this fall. It is anticipated that these plans will address the management of Cumberland Island’s feral animals in a thorough and comprehensive manner.
IV. FERAL ANIMALS AND THE LAW
A. Georgia Law
The law in Georgia concerning feral animals is ambiguous at best. Over twenty- two statutes or parts thereof relate in some way to feral animals, particularly feral hogs. For instance, a feral hog is defined separately as being “any member of the family Suidae which is normally considered domestic but which is living in a wild state and cannot be claimed in private ownership.” However, the feral hog is also considered as a “domestic species”, as “wildlife”, and as a “non-game species.”
The status of feral hogs change depending upon the context within which these animals are being considered. For example, state law prohibits the killing, capturing, destroying, catching, or seizing of all “non-game species”. These prohibitions should also apply to the feral hog as a “non-game species”. However, the state of Georgia both promotes and regulates the hunting/killing of feral hogs much as it does other “game animals”. Another example, feral hogs are considered generally as “wildlife” under Georgia law yet are distinguished from wildlife within the context of the laws making it “unlawful to hunt any wildlife or feral hog” from a boat.
Other laws explicitly provide the state with the authority to control and otherwise manage animal and plant species which threaten the habitat upon which wildlife depends. It is also unlawful to liberate any wildlife including, presumably, feral hogs and horses, within the state without a permit.
B. Federal Statutory Law
1. The Endangered Species Act.
The Endangered Species Act (ESA), 16 U.S.C §1531 et seq., was enacted by Congress in 1973 to ”provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, [and] to provide a program for the conservation of such endangered species …” 16 U.S.C. §1531 (b).
The ESA imposes three primary duties on NPS:
1) to avoid jeopardizing49 protected species (section 7);
2) to refrain from “taking” protected species (section 9); and
3) to act affirmatively to restore protected species to a viable population, one not threatened with extinction.
Agency actions resulting in a prohibited “takings” under section 9 also implicate section 7 because such actions necessarily “jeopardize” the species within the meaning of ESA.
2. The Wilderness Act.
The Cumberland Island Wilderness was created by Congress on September 8, 1982, in Public Law 97-250. This act directs the NPS to administer the Cumberland Island Wilderness in accordance with the provisions of the federal Wilderness Act.
The Wilderness Act is founded on two distinct elements: 1) the absence of human structures, settlements, roads, and other evidence of human activities, and 2) the presence of an undisturbed, healthy, and naturally functioning ecology.
The Wilderness Act requires the National Park Service to manage wilderness areas such as the Cumberland Island Wilderness to preserve both the undisturbed, natural appearance of the wilderness and the ecological health of the wilderness.
Moreover, it has been suggested that the Wilderness Act’s mandate to preserve the wilderness character of an area, together with Congress’s description of wilderness as undeveloped land “protected and managed so as to preserve its natural conditions,” requires agencies administering the Wilderness Act to affirmatively act to restore wilderness character. Whether in the context of acts necessary to “preserve” or to “restore” the Cumberland Island Wilderness’s natural conditions and wilderness character, the Wilderness Act seems to direct the National Park Service to remove all exotic animals such as Cumberland’s feral animals from the wilderness area. This is particularly true given the admitted harm these non-indigenous, once domesticated, animals are causing to the island’s biodiversity and ecosytems.
Management actions to preserve or restore a particular element of a wilderness area’s character are to be undertaken within the exceptions to the prohibitions imposed by the Wilderness Act. These actions include those deemed necessary to preserve protected species such as the loggerhead sea turtle. All actions to manage Cumberland Island’s feral animals must be undertaken in such a manner as to meet the minimum requirement of the Wilderness Act and must be accomplished using minimum tools.
C. National Park Service Policy on Feral Animals:
The nationwide policy on the issue of feral animals in NPS units, as stated in the NPS Management Policies, is clear: “Management of populations of exotic plant and animal species, up to and including eradication, will be undertaken wherever such species threaten park resources or public health and when control is prudent and feasible.” The Management Policies also cite as an example of a threat from feral animals the “interfering with natural processes and the perpetuation of natural features or native species (especially those that are endangered, threatened, or otherwise unique).”
The above NPS Management Policies on feral and exotic animals were further refined in NPS’ Natural Resources Management Guideline:
Control or eradication will be undertaken, where feasible, if exotic species threaten to alter natural ecosystems; seriously restrict, prey on, or compete with native populations; present a hazard to human health or safety; cause a major scenic or aesthetic intrusion; disrupt the integrity of an historic site; damage archeological resources; disturb or displace historic cultivars; extensively modify geophysical processes, such as sand deposition on beaches; or threaten resources or cause a health hazard outside the park.
The Natural Resources Management Guideline recommends an “ecosystem level approach to exotic species control” and notes that “[e]xotic species control programs require long-term commitments.”
D. Federal Authorizing Legislation for Cumberland Island National Seashore and the Cumberland Island Wilderness
Cumberland Island National Seashore was created by Congress on October 23, 1972, in Public Law 92-536. The legislation establishing the park does not speak directly to the issue of the feral animals on the island, nor does it make any mention of maintaining or managing them. However, the act does provide that “the seashore shall be permanently preserved in its primitive state, and no development of [a] project or plan for the convenience of visitors shall be undertaken which would be incompatible with the preservation of the unique flora and fauna” of the island.
The Cumberland Island Wilderness was created by Congress on September 8, 1982, in Public Law 97-250. This act, like the legislation establishing the Seashore, fails to address the issue of the feral animals in the area designated as wilderness. The legislation simply states that the wilderness area should be administered in accordance with the provisions of the federal Wilderness Act.
E. Cumberland Island National Seashore Management Plans
In 1984, NPS prepared a General Management Plan for Cumberland Island National Seashore. This document’s introductory overview of the island’s varied wildlife does not mention the feral hogs and horses, presumably because they are not native to the ecosystem. However, the plan lists among its Management Objectives “[t]o manage wildlife in a manner that restores and enhances the natural ecosystem of the island environment” and “[t]o the greatest extent possible, remove feral hogs from the seashore lands.” These objectives are later amplified in the plan:
Feral animals will be removed where they are detrimental to natural and cultural resources, and they will be transported to the mainland. This policy will necessitate the complete removal of feral hogs and the close monitoring of the population size of feral horses. . . . The feral horse population will be managed to insure a [h]ealthy representative herd. . . .
In a 1990 Statement for Management for Cumberland Island National Seashore, NPS lists among its long-term management objectives to “develop a feral horse management program,” to “manage native wildlife populations so as to achieve a balanced eco-system free of interferences created by man,” and to “reduce the competitive impact on native wildlife by exotic animals and the deleterious effect on vegetation by exotic animals by the most effective, feasible means possible.” The management plans for Cumberland Island are clear on the need to protect the species native to the island, and to manage or eradicate the exotic species that threaten the native plants and animals and further insult the island’s natural systems.
F. Management Plan for the Protection of Nesting Loggerhead Sea Turtles and Their Habitat in Georgia.
In 1995, finding “nesting of loggerheads in Georgia has declined despite enactment of conservation measures to protect sea turtles in the water”, NPS, together and in consultation with the United States Fish and Wildlife Service (USFWS), entered into a Memorandum of Agreement with the Georgia Department of Natural Resources adopting the comprehensive Management Plan for the Protection of Nesting Loggerhead Sea Turtles and Their Habitat in Georgia (“Management Plan”). The Management Plan found that “[e]very clutch of eggs is important to the survival of a threatened or endangered species. Management is required to maximize [Caretta caretta’s] reproductive effort until such species can be down-listed to a more stable management category.”
The Management Plan notes that “the negative impact of feral hogs on sea turtles and their nesting habitat has been abundantly documented” and [r]igorous control of hogs is necessary on barrier islands, with zero hogs on the beach and adjacent habitats a mandatory objective.”
Science, law, economics, public opinion, and politics will each influence the National Park Service’s final decision on how best to address the island’s feral hogs and horses. Whatever solutions are adopted to manage the feral animals of Cumberland Island, they are almost certain to be controversial.