CHAPTER 11 FEDERAL REGULATION OF NON-LISTED WILDLIFE

• Jurisdiction: United States

Federal Regulation of Cultural Resources, Wildlife & Waters of the U.S.
(Apr 2012)
CHAPTER 11
FEDERAL REGULATION OF NON-LISTED WILDLIFE
Steven K. Imig ¹
Ducker, Montgomery, Lewis, & Bess, P.C.
Denver, Colorado

STEVEN K. IMIG is an attorney with Ducker, Montgomery, Lewis & Bess, P.C. in Denver, Colorado. Steve specializes in natural resources, public lands law, litigation, and environmental law. His practice involves oil and gas and resource development, federal land use planning, ski area development, and litigation over various types of oil and gas agreements. Steve also helps clients navigate federal, state, and local environmental permitting and review processes. Steve has a B.A. in economics, magna cum laude, from Bates College; and a J.D., cum laude, from the Georgetown University Law Center. Steve has been a guest lecturer in environmental and natural resource law at the University of Denver, Sturm College of Law, and frequently speaks and writes on natural resources and environmental issues. Prior to law school, Steve was an economic consultant specializing in energy markets.

I. INTRODUCTION

The Endangered Species Act of 1973 ("ESA")² understandably commands central status among federal wildlife laws in the United States. Once a species is "listed" as threatened or endangered under the ESA, multiple powerful legal protections kick in. These protections include: (1) designation and protection of "critical habitat" of the species;³ (2) restrictions and consultation requirements for federal agencies taking action that may affect a listed species (including the issuance of a federal permit to a private party);⁴ and (3) prohibition of actions that may harass, harm or kill a listed species, including private actions taken on private lands.⁵ The ESA has been described as "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation,"⁶ but it only applies once a wildlife species is "listed" under the Act. This paper addresses federal regulation of all other types of wildlife: the "non-listed" species.

Although wildlife management has traditionally been a state prerogative, a century of U.S. Supreme Court decisions confirm that federal constitutional authority to regulate wildlife is extensive. But Congress has chosen to exercise that authority selectively and federal regulation of non-listed species is a broad but fragmented patchwork of laws. Because federal wildlife regulation is not comprehensive, and because Congress has generally chosen not to completely displace state authority even when it does act, the states retain a central role in wildlife management.

This paper covers four main topics. First, the paper explains the basis for the federal government's constitutional authority to regulate wildlife. Second, the paper briefly outlines the patchwork of the major laws in which Congress has chosen to exercise that authority. Third, the paper describes the relationship of the state and federal government with respect to wildlife management, and describes the circumstances under which state wildlife management is preempted. Fourth, the federal government owns nearly 30% of the total land mass of the United States. The U.S. Supreme Court has stated that congressional power to make laws respecting federal lands is "without limitations" and the Congress has chosen to grant extensive wildlife regulatory authority to the federal land management agencies.⁷ This paper therefore describes

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the way that the two primary land management agencies - the U.S. Bureau of Land Management ("BLM") and the U.S. Forest Service ("Forest Service") - plan for and manage wildlife on federal lands.

II. FEDERAL CONSTITUTIONAL AUTHORITY TO REGULATE WILDLIFE

Congress cannot enact laws based on a general police power. It is limited to those powers specifically enumerated in the Constitution, with all other powers reserved to the states.⁸ The ownership and management of wildlife was initially believed to be one of those powers reserved to the states.

Early U.S. Supreme Court cases indicated state wildlife authority trumped that of the federal government. In Geer v. Connecticut, the U.S. Supreme Court upheld a Connecticut law forbidding export of game from the state.⁹ The Court explained that the state owns the wildlife in its sovereign capacity for the benefit of the people. Although the dormant Commerce Clause would usually prohibit such a restriction on trade between the states, the Court held that the state had the power to prevent commerce in goods it itself owned.¹⁰ This state ownership of wildlife became known as the "state ownership doctrine."

Later, on September 28, 1908, the owners of the fishing vessel the "Abbe Dodge" were charged with illegally diving for and landing 1,229 sponges in state waters off the coast of Florida.¹¹ Sponge diving was legal under Florida law, but a 1906 federal law prohibited it.¹² Although the U.S. Supreme Court declined to uphold the divers' convictions on other grounds, it cast doubt on federal wildlife authority in dicta. The Court described the "plainly established" doctrine that the states have "exclusive authority" over the regulation offish and wildlife within their territorial limits, and that applying the sponge diving statute in state waters would result in "repugnancy to the Constitution."¹³

The Abbe Dodge Court's axiomatic belief that wildlife regulation was solely the province of the states was short lived. In 1920, the Supreme Court wrote that to rely upon the state ownership doctrine "is to lean upon a slender reed."¹⁴ The Supreme Court never again held that validly enacted federal wildlife regulation must yield to contrary state law. The Court has since

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upheld federal wildlife laws as a proper exercise of multiple constitutional powers, and has determined that, when Congress properly acts, state law must give way to federal law pursuant to the Supremacy Clause of the Constitution.¹⁵

The Constitutional powers that support federal wildlife regulation include:

• The Treaty Clause: gives the President the power "to make Treaties, provided two thirds of the Senators present concur . . . ."¹⁶ Wildlife legislation that implements an international treaty is a valid exercise of federal power under the Treaty Cause, and displaces contrary state law. The Treaty Clause has served as the basis for laws such as the Migratory Bird Treaty Act, 16 U.S.C. §§ 703 -711.¹⁷

• The Commerce Clause: grants Congress the power to "regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes . . . ."¹⁸ Multiple federal wildlife laws have been upheld on the basis that they regulate commerce between the states, including the Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1544 ,¹⁹ and the Airborne Hunting Act of 1971, 16 U.S.C. 742j-1.²⁰

• Property Clause: The Property Clause grants Congress the power to "make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States."²¹ The Property Clause allows the regulation of wildlife present on the 650 million acres of land owned by the federal government.²² This means that the United States can assert exclusive and preemptive authority over wildlife on federal lands if it chooses to do so.²³ The Property Clause may also allow the federal government to

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regulate wildlife on private or state lands if that wildlife affects public lands,²⁴ although the scope of Congress' power to regulate extraterritorial wildlife pursuant to the Property Clause has not been definitively resolved.²⁵

A detailed examination of the extent of each of these powers is beyond the scope of this paper. But it is clear that federal constitutional authority to regulate wildlife is broad. Despite challenges when Congress tests the outer limits of that authority, the debate about the propriety of federal wildlife regulation has largely shifted from one about Congress' power to one of the proper interpretation of the mosaic of ambiguous federal wildlife statutes that together form a fragmented body of law.

III. FEDERAL EXERCISE OF WILDLIFE AUTHORITY: A PATCHWORK APPROACH

Despite broad authority to do so, Congress has not chosen to regulate wildlife in a comprehensive manner (the exception arguably being the management of wildlife habitat on federal lands - an issue discussed in section V below). Federal regulation of non-endangered species is a patchwork of grant programs, species-specific laws, and cooperative programs with state and local governments. This section provides a brief overview of the many laws that form this patchwork.

The early days of federal wildlife regulation saw an eclectic mix of regulatory approaches. For example:

• The Lacey Act of 1900: One of the country's first wildlife laws makes it a federal crime "to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce . . . any fish or wildlife taken, possessed, transported, or sold in violation of any law or regulation of any State" or in violation of the laws of the United States or foreign nations.²⁶ Despite its age, the law still serves as the basis for prosecutions.²⁷

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• The Migratory Bird Treaty Act of 1918: comprehensively regulates the hunting, killing, taking, capture and sale of migratory birds.²⁸

• The Animal Damage Control Act of 1931: authorizes the Secretary of Agriculture to implement programs to control unwanted mammalian predators, rodents, and birds.²⁹

• The Fish and Wildlife Coordination Act of 1934: authorizes the Secretaries of Agriculture and Commerce to assist state agencies in protecting game and fur bearing animals, funds wildlife surveys on public lands, and provides for protection and mitigation of impacts to fish and birds.³⁰

• The Federal Aid in Wildlife Restoration Act of 1937: provides federal aid for state management of wildlife.³¹

• The Bald and...