CHAPTER 9 STATE CONSERVATION OF WILDLIFE IN THE SHADOW OF THE ENDANGERED SPECIES ACT: MONTANA FISH, WILDLIFE AND PARKS' COLLABORATIVE MANAGEMENT OF THREATENED, ENDANGERED AND CANDIDATE SPECIES

• Jurisdiction: United States

Endangered Species and Other Wildlife (Oct 2019)
CHAPTER 9
STATE CONSERVATION OF WILDLIFE IN THE SHADOW OF THE ENDANGERED SPECIES ACT: MONTANA FISH, WILDLIFE AND PARKS' COLLABORATIVE MANAGEMENT OF THREATENED, ENDANGERED AND CANDIDATE SPECIES
William Schenk
Agency Legal Counsel
Montana Fish, Wildlife & Parks
Helena, MT
Dustin Allen
J.D. Candidate, 2020
Alexander Blewett III School of Law, University of Montana
Missoula, MT
Kaedy Gangstad
Paralegal
Montana Fish, Wildlife & Parks
Helena, MT

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WILLIAM SCHENK, Montana Fish, Wildlife & Parks, Helena, MT

I. Introduction

The Endangered Species Act ("ESA") was enacted "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 and threatened species."¹ That purpose is best fulfilled when states are actively involved in the conservation of candidate and listed species.

Management of wildlife in America has traditionally been the responsibility of the individual states. States can be credited with conservation programs that have sustained countless species and populations throughout our history. It follows that declines in wildlife populations that led to the passage of the ESA² must be attributed, at least in part, to states' failures. Whether due to the politics around individual species or a general aversion to the loss of state authority, states tend to oppose new ESA listings and support proposals to delist.³ However, ESA's "best available science" mandate⁴ combined with the rigor of judicial review of listing and delisting determinations by the federal listing agencies leave states little choice but to avoid listing (and promote delisting) by managing wildlife so listing is not warranted and to help recover listed species. In effect, ESA has incentivized state wildlife protection. In Montana, this has fostered a cooperative approach to conservation in which the Montana Department of Fish, Wildlife and Parks ("FWP") (Montana's state wildlife management agency) engages with the U.S. Fish and Wildlife Service ("FWS"), and other stakeholders such as federal and state agencies, potentially affected landowners and nonprofit organizations. The approach has resulted in tangible benefits to wildlife irrespective of the outcome of ESA listing determinations and judicial review of those determinations.

This article is a case study of Montana's conservation efforts, and the conservation gains they have produced that are, at least in part, a result of its efforts to avoid listings and foster delisting. It begins by briefly discussing the history of FWP and its conservation successes and failures leading up to passage of the ESA. The article then uses three examples of how the ESA has prompted FWP to engage in programs that benefit species that are listed or are candidates for listing. The three examples represent a continuum from a high-profile, iconic species that is currently listed as threatened (grizzly bear), to a lesser known but regionally significant species

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whose status is currently "warranted but precluded" (Arctic grayling), to a little-known species that was once a candidate for listing but was found to be "not-warranted" (Sprague's pipit). These species' stories illustrate that the best conservation results occur when there is a collaborative relationship between states, FWS, and other partners (public and private). They also demonstrate that ESA has prompted an evolution toward an approach to conservation that is sensitive to the needs of local people and is more effective for it. Such efforts are producing meaningful conservation gains for individual candidate and listed species and improving habitat that is shared by other species - regardless of the outcome of litigation over listing decisions.

The article does not propose a specific amendment or reform of the ESA. It does, however, use the examples to suggest that a productive avenue for reform is to enhance the ability of the FWS, when making listing decisions, to consider the conservation efforts of states and their partners when those efforts are producing biologically meaningful results.

II. Origins of ESA-driven State Wildlife Conservation.

The United States Supreme Court has long viewed the states' authority to regulate wildlife as settled law. In 1896 the Court wrote that states have "the undoubted authority to control the taking and use of that which belonged to no one in particular but was common to all."⁵ The Court embraced the concept of state ownership of wildlife noting that "the wild game within a state belongs to the people in their collective sovereign capacity."⁶ Though the Supreme Court in 1979 debunked state ownership of wildlife as a "legal fiction," it affirmed that states continue to have general authority over wildlife within their borders, so long as state regulation does not violate the U.S. Constitution.⁷

In Montana, that authority is delegated by its legislature to the Fish and Wildlife Commission ("Commission") and FWP. The Commission sets policy "for protection, preservation, management and propagation of the wildlife, fish, game, furbearers, waterfowl, nongame species and endangered species of the state. . ."⁸ FWP is charged with supervising "all the wildlife, fish, game, game and nongame birds, waterfowl, and the game and fur-bearing animals of the state . . ."⁹ Congress, of course, may preempt state authority over wildlife management and throughout the 19^th century it did. For example, it created national wildlife refuges, and it passed the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act.¹⁰ This progression of federal preemption culminated in passage of the ESA in 1973.

The ESA defines endangered species as those "in danger of extinction throughout all or a significant portion of [their] range," while threatened species are those "likely to become . . . endangered . . . within the foreseeable future."¹¹ The ESA requires the Secretary of Interior to determine whether any species is endangered or threatened because of any of five factors: "(A)

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the present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence."¹² Importantly, along with the mandate to use the best scientific data available, the ESA instructs the Secretary to make listing determinations "after conducting a review of the status of the species and after taking into account those efforts, if any, being made by any State or foreign nation, or any political subdivision of a State or foreign nation, to protect such species, whether by predator control, protection of habitat and food supply, or other conservation practices, within any area under its jurisdiction, or on the high seas."¹³

The ESA is said to have passed with "remarkably little fanfare"¹⁴ but has evolved into a battle ground where values clash. There is tension between the opportunity for development of resources and preservation of wildlife and its habitat. There is conflict between public demand to protect and recover species and the desire for local control of resource management. Moreover, it is commonly recognized that the states' role in implementing the ESA, which was understood to be very strong when the act was passed,¹⁵ has been diminished over time by federal rulemaking and court decisions.¹⁶ Litigation over decisions to list and delist species, critical habitat designations and other ESA-related decisions is not only prolific but is initiated by environmental groups and industry alike. This has led to numerous calls to amend the ESA or otherwise reform its implementation, including revitalizing the states' role in its administration.¹⁷

Statutory and rulemaking reforms may or may not come to fruition. As a practical matter, however, given the ESA's mandate to use the best scientific and commercial data available, combined with the rigor in which the Section 4 listing/delisting criteria are applied and the intense scrutiny of those decisions upon judicial review, the most effective way for states to avoid listing of species is to prevent the need for it. Similarly, the best path toward delisting is to recover the species. The Montana Legislature recognized this in 1999 when it amended the state statute to require FWP to implement programs that manage wildlife, including non-game animals, in a manner that prevents the need for listing under the ESA, and that assists in the maintenance or recovery of listed or candidate species.¹⁸ As a result, regardless of the outcome of listing decisions, many species have benefitted significantly from FWP's conservation efforts. Those efforts, where biologically successful, should contribute significantly to a decision that listing is not warranted or that delisting is warranted.

III. Wildlife Conservation in Montana

A. History

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Montana's history of wildlife management is, overall, a story of tremendous success. But an honest assessment must conclude that there have been failures. This Part describes both.

Montana's tradition of protecting wildlife began in 1865 when the First Territorial Legislature passed a law prohibiting the use of seines, nets, drugs, and poisons for the purposes of catching or killing fish.¹⁹ In 1872, lawmakers established the first closed season on big game. In 1895, the Montana Board of Game and Fish Commissioners was established and in 1901 the precursor to FWP was born when the Montana Legislature authorized the appointment of a state game warden. A revenue stream was provided through a requirement that nonresident hunters purchase hunting licenses. Four years later, resident hunting and fishing licenses were...