FISH AND WILDLIFE MANAGEMENT ON FEDERAL LANDS: THE AUTHORITIES AND RESPONSIBILITIES OF STATE FISH AND WILDLIFE AGENCIES.

• Author: Kisonak, Lane
• Position: Response to Martin Nie and others, Environmental Law, vol. 47, p. 797, 2017

1. INTRODUCTION 936 II. STATE OWNERSHIP, CONSTITUTIONAL LIMITATIONS, AND THE QUESTIONS LEFT TO US 938 A. The State Management Backdrop: Ownership and Trust in Wildlife 939 1. The Rise of Sovereign Ownership and Public Trust Doctrines 2. The Rise of the Commerce Clause and the Evolution of the Modern Universe of Public Trust Doctrines 941 3. The Descriptive Import of the North American Model 946 B. The Constitutional Foreground: The Supremacy and Property Clauses, the Tenth Amendment, and Parens Patriae 948 1. Preemption and Anti-Commandeering Doctrine 948 2. Regulation of Activity on State Land Near or Within Federal Land 951 3. Parens Patriae, Police Powers, and Natural Resource Interests 953 III. UNSOLVED JURISDICTIONAL ISSUES AND ONGOING MANAGEMENT DISPUTES OVER WILDLIFE ON FEDERAL LAND 956 A. National Wildlife Refuges 956 1. NWRSIA Savings Clauses 956 2. Refuge Purposes, Planning, and Compatibility--Policy and Guidance 959 B. Wildernesses 961 C. How Recognizing State Authority Can Reduce Interagency Conflict and Confusion 964 IV. TOWARD CONSTRUCTIVE COLLABORATION 966 A. Creating and Updating Memoranda of Understanding, and Regularly Updating Policy and Guidance 966 B. Setting the Record Straight on State Management, the North American Model, and the Public Trust Doctrine 968 C. Advocating for Higher Funding of State and Federal Wildlife Conservation Programs 969 V. CONCLUSION 970 I. INTRODUCTION

   In 2017 Dr. Martin Nie et al. (Nie et al.) published an article purporting to "debunk the myth that 'the states manage wildlife and federal land agencies only manage wildlife habitat"' and arguing that "states assert wildlife ownership to challenge the constitutional powers, federal land laws, and supremacy of the United States." (1)

   At the heart of the matter, Nie et al. are concerned with lines--among them the abstract line sometimes drawn between wildlife and habitat, the division of federal and state responsibilities, and the lines distinguishing "ownership" from "trust" and "management" from "duties." (2)

   Nie et al.'s article makes a number of claims that unduly diminish the authority of state wildlife agencies to manage wildlife resources within the U.S. constitutional structure and discredit the Association of Fish and Wildlife Agencies' (AFWA) role as a convener and facilitator of state wildlife agencies. Broadly stated, Nie et al.'s arguments include:

   * "[F]ederal land agencies have considerable powers and statutory duties to manage wildlife on federal lands, even if they have chosen not to exercise those powers consistently in the past." (3)

   * "[T]he states' assertion that they own wildlife--full stop--is incomplete, misleading, and needlessly deepens divisions between federal and state governments." States rightfully claim "sovereign ownership" in trust for the public but do not fulfill attendant duties. (4)

   * "[The North American Model of Wildlife Conservation's] frequent invocation by AFWA and the states is problematic, from providing a... narrow and hunting-centric view of conservation history to asserting the power and authority of the states to regulate wildlife." (5)

   * Memoranda of agreement between AFWA and federal agencies are "legally questionable policy channels" and are "nontransparent". Federal agencies "should expect scrutiny of the assignment of blanket authority to states using MOUs." (6)

   * "AFWA['s] initiatives[] reflect a fundamental misunderstanding of the federal role in managing wildlife." (7)

   This Article fully rebuts those lines of argument. Part II provides a clear and unifying reading of the constitutional provisions and case law necessary to understand the roots of shared jurisdiction of state and federal agencies on federal land, some of which, such as parens patriae, went unexplored by Nie et al. Part III reviews the federal statutes, regulations, and guidance central to the jurisdictional concerns of Nie et al. Finally, Part IV offers practical, conciliatory answers to outstanding questions rooted in these legal authorities, particularly with respect to the management of fish and resident wildlife located in national wildlife refuges and wilderness areas.

   To assert that state agencies and AFWA "fundamental[ly] misunderstand[]" (8) the federal dimensions of wildlife management is to ignore the ambiguities in federal case law that feed this very debate. Even in light of the federal government's expansive constitutional authority, states' continued ownership of wildlife in trust remains a primary source of law and underlies invaluable programs including, but far from limited to, habitat preservation and restoration, (9) non-game species recovery, (10) cooperative research, (11) and law enforcement including anti-trafficking operations. (12) As can be expected in any area of regulation reserved to states, programs and priorities vary by state. But the historical record shows that state fish and wildlife agencies work to fulfill their duties with the seriousness their power demands, fully aware of the competing principles of the federalist system that make their mark on wildlife conservation, as they do across all areas of public life in America.

2. STATE OWNERSHIP, CONSTITUTIONAL LIMITATIONS, AND THE QUESTIONS LEFT TO US

   In Federalist 10, James Madison suggested (optimistically) a nation abundant in land and people could limit the power and harms of factions. (13) Like many of the Framers' theories that would later bend to unforeseen conditions, this Madisonian theory has shown its limitations. Relevant to multiple domains of local and national life, this pluralistic ideal stalks the edges of land use--a field constantly subjected to competing demands.

   When we consult the Constitution and other sources of law to discern the role of modern factions (e.g., consumptive and non-consumptive users of wildlife, state and federal agencies), little about Congress's power to regulate federal property is as clear as Nie et al. contend. What is evident, however, is state and federal case law both provide for state management and trust authority--claimed and exercised in varying degrees--over fish and wildlife on all lands within a state. (14) Savings clauses in federal statutes, contrary to Nie et al.'s arguments, are designed by Congress to preserve this substantial authority. (15)

   1. The State Management Backdrop: Ownership and Trust in Wildlife

      To discuss state authority to manage wildlife, it is useful first to make like the courts of the early nineteenth century, and ascertain the basis for state ownership of land, water, and wildlife.

      1. The Rise of Sovereign Ownership and Public Trust Doctrines

         Government "ownership" of land can be considered "proprietary" or "sovereign." (16) Proprietary ownership provides for exclusion of trespassers, conveyance of interests, and other functions inherent to personal ownership of real property. (17) Sovereign ownership entails "regulati[on], tax[ation], confer[ral of] citizenship, and... other sovereign functions." (18)

         In 1821, New Jersey's highest court was the first in the country to proclaim "the sea, the fish, and the wild beasts" lay "in the hands of the sovereign power, to be held, protected, and regulated for the common use and benefit." (19) The U.S. Supreme Court took up this formulation in Martin v. Waddell's Lessee, (20) advancing the notions (1) the people of a state retain the right to fish in its navigable and tidal waters subject to state ownership of waterbeds, and (2) states may only transfer ownership interests in public trust resources in service of the common good. (21) While Arnold v. Mundy and Martin v. Waddell's Lessee (along with Illinois Central Railroad Co. v. Illinois) (22) did much to advance the idea of the Public Trust Doctrine (PTD) for states to write into their constitutions, statutes, and jurisprudence, (23) Geer v. Connecticut (24) first directly applied it to wildlife. And, as Nie et al. note, it is Geer that has received the most judicial reappraisal over its life. (25)

         In Geer, the Supreme Court drew upon ancient Roman and medieval English common law to hold that "power or control [over wildlife] lodged in the State, resulting from... common ownership, is to be exercised... as a trust for the benefit of the people" (emphasis added). (26) It therefore fell within the "police power of the state... to make such laws as will best preserve such game [and fish], and secure its beneficial use in the future to the citizens." (27) While this notion held up in name for most of a century, a wave of federal statutes enacted pursuant to the Supremacy, Property, and Commerce Clauses, some of them implementing treaties, nipped at its edges. (28)

         In Geer the Court rejected the idea "the killing of game and its sale within the state" are "commerce in the legal meaning of that word" subject to the Commerce Clause. (29) The statutes that followed in Geer's footsteps, and the Court's reconception of the Commerce Clause during the New Deal Era, (30) gave the Court a second chance to embrace that very idea. What followed, however, changed much less than meets the eye.

      2. The Rise of the Commerce Clause and the Evolution of the Modern Universe of Public Trust Doctrines

         While it is not surprising that the Supreme Court would fix its sights on Geer, (31) the Court did nothing to definitively situate wildlife conservation in the federal sphere. (32) In Hughes v. Oklahoma (33)--a case with facts much like Geer's--the Court declared Geer dead after applying the Dormant Commerce Clause test to strike down an Oklahoma statute banning transport of minnows out of state. (34) On its own terms, applying the Dormant Commerce Clause was sensible enough. But then the Court went on:

         The fiction of state ownership may no longer be used to force those outside the State to bear the full costs of "conserving" the wild animals within its borders when equally effective nondiscriminatory conservation measures are available.... The overruling of...