National Wildlife Refuges and Intensive Management in Alaska: Another Case for Preemption

• Publication year: 2010

§ 27 Alaska L. Rev. 27. NATIONAL WILDLIFE REFUGES AND INTENSIVE MANAGEMENT IN ALASKA: ANOTHER CASE FOR PREEMPTION

Alaska Law Review
Volume 27, No. 1, June 2010
Cited: 27 Alaska L. Rev. 27

NATIONAL WILDLIFE REFUGES AND INTENSIVE MANAGEMENT IN ALASKA: ANOTHER CASE FOR PREEMPTION

JULIE LURMAN JOLY ^[*]

ABSTRACT

In this Article, the Author explores the attempts made by the State of Alaska to implement various regulations on National Wildlife Refuge System (NWRS) lands in the state, examining the conflict between the State's Intensive Management System and the mission of the NWRS, which is managed by the U.S. Fish and Wildlife Service, a federal agency. The Author discusses the concept of preemption generally and concludes that actions undertaken by Alaska's Intensive Management System are in direct conflict with the federal mandates of the NWRS, and thus the State's actions should be preempted.

TABLE OF CONTENTS

INTRODUCTION..................................................................................................28

I. STATE INTENSIVE MANAGEMENT..........................................................28

II. FISH AND WILDLIFE SERVICE MANAGEMENT MANDATES...................31

A. National Wildlife Refuge System Improvement Act..............31

B. Alaska National Interest Lands Conservation Act..................34

C. Wilderness Act.............................................................................37

D. Are the Fish and Wildlife Service Manuals Binding on the Agency?...................................................................................40

III. PREEMPTION...........................................................................................41

CONCLUSION............................................................................................47

INTRODUCTION

The 2007 article, "Preemption of State Wildlife Law in Alaska: Where, When, and Why," ^[1] made the argument that attempts by the State of Alaska to implement its intensive management law or other regulations that amounted to an intensive type of wildlife management (such as managing for desirable prey species abundance at the cost of natural processes and population dynamics) on National Park Service lands were in direct conflict with the Park Service's mandates as laid out by Congress, and should therefore be preempted on Park Service lands. ^[2] This conclusion left open the question of whether a similar problem exists with regard to other federal lands in Alaska. This follow-up Article examines the same issue from the perspective of the U.S. Fish and Wildlife Service (FWS) and the National Wildlife Refuge System (NWRS).

Part I of this Article briefly describes state intensive management law and practices and their relevance to the NWRS. Part II provides an analysis of the relevant federal legislation guiding the FWS in its management of the NWRS, as well as the courts' and FWS's interpretations of that legislation. Part III presents the concept of preemption and its application in this context, followed by a discussion of the legality of intensive management on NWRS lands.

I. STATE INTENSIVE MANAGEMENT

The federal government sets the rules and regulations for subsistence hunting on federal lands in Alaska, as required under the Alaska National Interest Lands Conservation Act (ANILCA). ^[3] In general, however, it is the State of Alaska that sets the terms for non-subsistence hunting in Alaska, on both federal and non-federal lands. Non-subsistence hunting is allowed on nearly all refuge lands in Alaska. As a result, the State's actions and policies can have a significant impact on refuge lands. Additionally, there is constant pressure from the State to harmonize federal subsistence hunting regulations with the State's hunting regulations. ^[4]

Alaska's fish and wildlife management program, like most state wildlife programs, is geared toward providing hunting opportunities. ^[5] This tendency is exemplified by the State's intensive management program. Intensive management in Alaska has two distinct faces: the first is the official Intensive Management program formalized through Section 16.05.255 of the Alaska Statutes, and the second is the regular use of an intensive type of wildlife management. ^[6]

The goal of the State's Intensive Management statute is to maintain, restore, or increase the abundance of certain game populations (specifically moose, caribou, and deer) for human consumption. ^[7] The intention of the program is to maintain a "sustained yield," which the statute defines as "the achievement and maintenance in perpetuity of the ability to support a high level of human harvest of game, subject to preferences among beneficial uses, on an annual or periodic basis." ^[8] The regulations implementing this statute require the Board of Game to "utilize active management of habitat and predation as the major tools to reverse any significant reduction in the allowable human harvest of the population." ^[9] If prey population levels set by the State are not being met in a particular game management unit, then the State must officially designate the unit as an Intensive Management area and implement intensive management practices. ^[10]

Implementing intensive management may take the form of lethal predator control, but may also take various other forms, such as:

[I]ncreasing bag limits and liberalizing hunting seasons for predators to increase their harvest; eHminating the need for hunters to obtain or purchase hunting tags or permits for predators, thereby permitting the "incidental" taking of these animals; same day airborne hunting and trapping which allow taking the same day one flies in an aircraft; allowing easier and greater use of motor vehicles while hunting to increase the hunter's advantage; expanding the allowable means and methods of hunting for predators, like baiting or feeding, thereby creating additional opportunities for taking; allowing the sale of raw hides and skulls thereby creating economic incentives for taking; and many others. ^[11]

These less controversial, though more ubiquitous, regulatory changes typically apply to all hunters within the relevant game management unit. They even apply regardless of whether that unit encompasses federal lands or not, unless an exception is written into the regulation itself. Thirteen out of the sixteen federal wildlife refuges in Alaska overlap with officially designated Intensive Management areas. ^[12] Of those thirteen, twelve are entirely or largely within Intensive Management areas. ^[13] While lethal predator control for prey enhancement is not currently permitted on any refuge in Alaska, ^[14] the other types of Intensive Management activities mentioned above are permitted. This problem, therefore, is extremely pervasive. Over eighty percent of the refuges in Alaska are affected by Intensive Management, and for over ninety percent of those refuges affected, all or nearly all of the refuge's land base is affected.

The Intensive Management policy and the types of actions it engenders are technically limited to areas officially designated as "Intensive Management" areas and to species officially recognized by the Intensive Management statute. ^[15] However, the philosophy behind the Intensive Management approach spills over to the regulation of other species and to areas outside those marked Intensive Management where the State is still primarily interested in providing game species for hunting. As such, many hunting regulations outside official Intensive Management areas are established with an eye toward limiting predator species in order to increase the abundance of game species for human hunting purposes. ^[16] This broader concept of intensive wildlife management is also problematic for the FWS.

II. FISH AND WILDLIFE SERVICE MANAGEMENT MANDATES

The FWS must meet obligations under many statutes in its management of the NWRS. Three statutes in particular provide the greatest source of authority and responsibility for the agency in its management capacity: (1) the 1997 National Wildlife Refuge System Improvement Act ^[17] (which amended the National Wildlife Refuge System Administration Act of 1966 ^[18]); (2) the 1980 Alaska National Interest Lands Conservation Act; ^[19] and (3) the Wilderness Act of 1964. ^[20]

A. National Wildlife Refuge System Improvement Act

The National Wildlife Refuge System Improvement Act ("Improvement Act") states that refuges must be managed to fulfill the overall mission of the refuge system and the purposes of the individual refuge. ^[21] The Improvement Act states that the mission of the system is to "administer a national network of lands and waters for the conservation, management, and where appropriate, restoration of the fish, wildlife, and plants resources and their habitats within the United States for the benefit of present and future generations of Americans." ^[22] The statute defines "conservation" and "management" as synonymous, both meaning "to sustain and, where appropriate, restore and enhance, healthy populations of fish, wildlife, and plants utilizing . . . methods and procedures associated with modern scientific resource programs." ^[23] This restates the system mission without providing much additional guidance, ^[24] though it makes clear that maintenance of "healthy populations" is part of the statute's goal.

Professor Robert Fischman suggests...