FISH AND WILDLIFE MANAGEMENT ON FEDERAL LANDS: DEBUNKING STATE SUPREMACY.

• Author: Nie, Martin
• Position: ARTICLES

1. INTRODUCTION 801 II. STATE MANAGEMENT CONTEXT AND STATE PERSPECTIVES ON MANAGING WILDLIFE ON FEDERAL LANDS 806 A. State Ownership and the Wildlife Trust 806 B. State Wildlife Laws, Decision Making, and Funding 808 C. The North American Model of Wildlife Conservation 811 D. The 2014 AFWA Task Force Report 814 III. THE LEGAL CONTEXT OF WILDLIFE MANAGEMENT ON FEDERAL LANDS 819 A. Constitutional Context 819 1. The Property Clause 819 a. The Nature and Scope of the Property Clause 819 b. Property Clause Power to Protect Federal Lands and Resources from External Threats 824 2. The Treaty Clause 825 a. Migratory Bird Treaty of 1916 827 3. The Tenth Amendment and the Commerce Clause 829 a. The Evolution of the Anti-Commandeering Doctrine 829 b. The Tenth Amendment's Application to Wildlife Management 831 c. The Commerce Clause and Federal Wildlife Management 833 4. Federal Preemption and Savings Clauses 836 B. Federal Land Laws and Regulations 838 1. The Endangered Species Act 839 a. Listing Determinations (Section 4) 840 b. Federal Obligations (Section 7) 842 i. Affirmative Duty to Conserve (Section 7(a)(1)) 842 ii. Prohibition Against Jeopardy (Section 7(a)(2)) 843 iii. Prohibition Against Adversely Modifying Critical Habitat (Section 7(a)(2)) 844 c. Take Prohibition (Section 9) 845 i. Incidental Take Statements and Incidental Take Permits (Section 7(a)(2) and Section 10) 846 d. Cooperation with States (Section 6) 847 2. The National Park System 848 a. The 1916 Organic Act 848 b. National Park Service Management Policy 849 c. Hunting and Fishing 850 3. The National Wildlife Refuge System 851 a. The National Wildlife Refuge System Improvement Act (1997) 851 i. Provide for the Conservation of Fish, Wildlife, Plants, and Their Habitats 853 ii. Ensure That the Biological Integrity, Diversity, and Environmental Health of the System Are Maintained 854 iii. Ensure Effective Coordination, Interaction, and Cooperation 854 iv. Savings Clause 855 v. Compatibility Determinations 856 4. The National Forest System 857 a. The 1897 Organic Act 857 b. The Multiple-Use Sustained-Yield Act of 1960 858 c. The National Forest Management Act of 1976 860 i. NFMA and Wildlife 861 ii. Wildlife and Special Use Authorization 864 iii. Coordination with State and Local Governments. 865 d. U.S. Forest Service Cooperation in Wildlife Management 866 e. Special Designated Areas Managed by the U.S. Forest Service 867 5. Public Lands Managed by the Bureau of Land Management 868 a. Federal Land Policy Management Act (1976) 868 i. Areas of Critical Environmental Concern 870 ii. Bureau of Land Management Regulation and Policy 871 b. The National Landscape Conservation System 873 c. Federal-State Interactions 873 6. The Special Case of Alaska 876 a. Alaska National Interest Lands Conservation Act 876 i. Subsistence 877 ii. Sport Hunting 878 7. The National Wilderness Preservation System 880 a. The Policy and Objectives of the Wilderness Act 880 i. Preserving Wilderness Character 881 ii. Within and Supplemental 883 iii. Prohibition of Certain Uses 884 iv. Special Provisions 887 b. Subsequent Wilderness Legislation with Wildlife Provisions 888 c. Agency Policy 893 d. Wilderness and the Association of Fish & Wildlife Agencies 894 IV. ANALYSIS AND RECOMMENDATIONS 897 A. The Federal Obligation to Manage and Conserve Fish and Wildlife on Federal Lands 897 1. Federal Land Laws Governing Wildlife Management 899 2. The Public Trust and National Interest in Federal Lands 902 3. The Ecological Fallacy of Separating Wildlife from Habitat 906 B. State Wildlife Governance 907 1. State Ownership and the Wildlife Trust 907 2. Hunting and the North American Model of Wildlife Conservation 911 C. The Department of Interior's Policy Statement on Federal-State Relationships 913 D. Failure to Act: The APA, NEPA, and Beyond 916 E. The National Wilderness Preservation System 920 F. Intergovernmental Cooperation 926 1. Existing Opportunities for Intergovernmental Cooperation at the Federal Level 927 2. Opportunities to Cooperate at the State Level 930 3. Cooperation Does Not Equal Federal Acquiescence 931 V. CONCLUSION 931 I. INTRODUCTION

   Some of the most significant cases in the development of federal lands and resources law revolve around questions pertaining to federalism and wildlife management. At stake are weighty issues related to constitutional law, sovereignty, and ownership. Complicating matters is the enduring tension between federal and state governments that is built into American politics, the opaque language sometimes found in federal lands law, and the interjurisdictional nature of wildlife conservation. And, of course, there is the politics of it all, as these cases force federal and state agencies to consider their sources of power and authority, their organizational values and biases, and other deeply polarizing and confrontational issues.

   To begin, consider some of the following questions that were decided long ago by the courts: Does the United States Forest Service (USFS) have the authority to kill over-browsing deer deemed to be causing harm to the Kaibab National Forest and to do so in violation of state game laws? Similarly, does the National Park Service (NPS) have the authority to kill deer within Carlsbad Caverns National Park for research purposes without obtaining a state permit? Does Congress have the power to protect wild horses and burros on federal lands when those species compete with ranchers and their cattle for forage? And can the United States Fish and Wildlife Service (FWS) refuse to permit the State of Wyoming to vaccinate elk on the National Elk Refuge?

   The courts answered these questions, all in the affirmative, (1) but standoffs between federal and state governments have nonetheless intensified in recent years. We examined several of these conflicts to help guide our research so that we could address the key arguments made by state and federal governments, and focus our analysis on the most relevant provisions related to wildlife as found in federal law, regulation, and policy. Included in our review were cases receiving national attention, such as the recent decision by NPS and FWS to preempt those hunting regulations of the State of Alaska that are in conflict with National Park and Refuge laws. These are rare cases where federal agencies pushed back against state interests. In other high profile cases, federal agencies acquiesced to the states, such as Grand Teton National Park's refusal to apply federal regulations to private inholdings within the boundaries of the Park, thus effectively ceding wildlife management authority to the State of Wyoming on roughly 2,300 acres of land within the Park. Other problematic cases include the management of wolves in federally designated wilderness areas, such as the decision made by USFS to permit the State of Idaho to land helicopters in the Frank Church River of No Return Wilderness in order to track and collar wolves, and to not take action to regulate the State of Idaho's plan to hire a professional trapper to kill two packs of wolves living within the Wilderness for the purpose of increasing the area's elk population. We also investigated cases receiving far less national attention, such as an annual predator killing contest on federal lands in Idaho managed by USFS and the Bureau of Land Management (BLM), and the State of Utah's introduction of non-native mountain goats to establish a population on national forest lands.

   In cases like these, the states frequently claim that federal land agencies have limited authority over wildlife management, especially on multiple-use lands managed by USFS and BLM. In making this argument, states commonly assert that they own wildlife and manage it as a trust resource. As they see it, their power and authority over wildlife on federal lands reign supreme, and as the argument goes, neither federal land laws nor the courts have done much to change this historical arrangement. The states often justify their positions and actions by reference to the "North American Model of Wildlife Conservation" (the Model), which is a set of principles to guide state management of wildlife.

   In comparison to the states, the federal government responds in a more varied and often inconsistent fashion. Rare is the situation where a federal agency challenges state interests, such as the case with NPS and FWS in Alaska. More common is a federal agency sending mixed messages about its authority over wildlife on federal lands, sometimes flexing its muscle, sometimes acquiescing to the states, and sometimes doing everything it can to watch from the sideline. This inconsistency may be why questions about wildlife management on federal lands have resurfaced with such force in recent years.

   This Article sets the record straight by providing a comprehensive examination of the authority of federal agencies to manage wildlife on federal lands, with the goal of providing a more common understanding amongst federal and state agencies. To help ground the research and make it usable to decision makers and federal land and wildlife managers, the research team consists of three academics (Zellmer, Joly, and Nie) and three consultants (all retired federal employees) having decades of experience working for the United States Department of Agriculture's Office of the General Counsel (Pitt), USFS (Haber, a former planning specialist for the agency), and BLM (Barns, a former wilderness specialist at the Arthur Carhart National Wilderness Training Center).

   The Article comes in three parts. Part II begins by providing the context of state wildlife governance. It highlights the core claims and arguments most often made by the states and their representative institutions in conflicts like those described above. It reviews the common assertion that states own wildlife and manage it as a trust resource. From there, the Part reviews common themes in state wildlife laws, decision-making...