William & Mary Environmental Law and Policy Review
In addition to its ecological and intrinsic significance, wildlife is recognized as invaluable historic and cultural resources. Current laws protecting wildlife, like the Endangered Species Act (“ESA”), fail to recognize this dimension, and are limited in providing meaningful protection for culturally significant wildlife. The cultural and historic value of wildlife was recognized in Dugong v. Rumsfeld, in which the court held that a species of dugong could be considered “historic property” under the National Historic Preservation Act (“NHPA”). NHPA requires federal agencies to evaluate the impact of all federally funded or permitted projects on “historic properties.” It is a close statutory analog to the National Environmental Policy Act (“NEPA”), which requires federal agencies to evaluate the impacts of any federally funded or permitted projects that are determined to have a significant impact on the human environment. The government has recognized the close interconnection between these two acts and has provided guidance for coordination of review under the two statutes. The holding in Dugong and the eligibility of wildlife as “historical property” encourages enhanced coordination of consultation and review between NHPA and NEPA, in which a major federal action threatens culturally and ecologically significant wildlife, potentially evading categorical exclusions under NEPA.
Part I of this Article addresses some of the gaps in United States federal wildlife protection law through the limitations of federal statutes like the ESA, highlighting harm to culturally significant species, both listed and unlisted. Part II explains how the court in Dugong concluded that wildlife could be considered “historic property” under the NHPA. Part III examines the structural and procedural similarities between the NHPA and NEPA, along with federal guidance encouraging coordination of review under the two statutes and potentially avoiding categorical exclusions under NEPA. Part IV concludes that the recognition of wildlife as capable of being considered “historic properties” under the NHPA, prompting coordination of review under these statutes in which federal actions threaten culturally significant wildlife, enables more robust wildlife protection where the ESA falls short.