Preemption of State Wildlife Law in Alaska: Where, When, and Why

• Jurisdiction: United States,Federal,Alaska
• Publication year: 2007
• Citation: Vol. 24

§ 24 Alaska L. Rev. 145. PREEMPTION OF STATE WILDLIFE LAW IN ALASKA: WHERE, WHEN, AND WHY

Alaska Law Review
Volume 24, No. 2, November 2007
Cited: 24 Alaska L. Rev. 145

PREEMPTION OF STATE WILDLIFE LAW IN ALASKA: WHERE, WHEN, AND WHY

JULIE LURMAN, J.D., M.E.S. AND SANFORD P. RABINOWITCH, M.L.A. ^{[*] [**]}

I. INTRODUCTION

II. WILDLIFE MANAGEMENT AND THE NATIONAL PARK SERVICE

III. STATE INTENSIVE MANAGEMENT OF WILDLIFE

IV. PREEMPTION: WHAT IS IT?

V. PREEMPTION - WHY DOES IT APPLY?

VI. CONCLUSION

FOOTNOTES

Preemption is the constitutional doctrine which holds that when federal law and state law conflict, federal law must be followed, and state law must yield. In Alaska, the wildlife law known as the Intensive Management statute is in conflict with federal laws governing national park lands and the management of wildlife on those lands. Preemption requires the State of Alaska to refrain from implementing the Intensive Management statute on national park lands because of the conflict with federal laws. This Article describes the relevant state and federal laws, the preemption doctrine, and the doctrine's application to wildlife management in Alaska. It concludes by stating that Alaska has every right to manage wildlife as it sees fit but must always yield in cases where its laws are preempted by the laws of the United States.

[*PG 146]

I. INTRODUCTION

Since 1994, the State of Alaska has been managing wildlife in accordance with the state's Intensive Management principles laid out in the Alaska Code. ^[1] This statute -- which will be referred to as the Intensive Management statute -- directly conflicts with the wildlife management mandates laid out by Congress in the National Park Service Organic Act ^[2] and the Alaska National Interest Lands Conservation Act (ANILCA). ^[3] This direct conflict is currently preventing the National Park Service (NPS) from achieving the goals set out for it by Congress. ^[4] As the State's implementation of the Intensive Management statute becomes increasingly widespread, it is ever more important for the National Park Service to recognize that the State's current Intensive Management program is preempted on NPS lands based on a theory of direct conflict. The stark differences in the animating legislation of the State and the NPS have led to misunderstandings between both the hunting and conservation communities and the management agencies themselves. This Article seeks to explain why the NPS may not acquiesce to wildlife management practices

[*pg 147] that conflict with its mandate and how the Intensive Management statute does, in fact, conflict with that mandate.

Part II of this article outlines the federal mandates for the management of wildlife on NPS lands in Alaska. Part III describes Alaska's Intensive Management statute and the regulations derived from it. Part IV defines the theory of preemption as a result of direct conflict, and Part V describes how the criteria for preemption of state law, based on a theory of direct conflict, are met by the facts in this situation.

II. WILDLIFE MANAGEMENT AND THE NATIONAL PARK SERVICE

The NPS is guided in its efforts to manage wildlife on its lands by its enabling statute, the 1916 National Park Service Organic Act, and its most recent interpretation of this statute -- which was most recently stated in the 2006 Management Policies. The agency is also guided by the legislation creating each park unit -- which often carries more specific instructions regarding Congress's intentions for the different land areas.

The Organic Act tells the agency to "conserve the scenery and the natural and historic objects and the wildlife therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations." ^[5] Over the years, courts have interpreted this somewhat vague statement to mean that the agency has broad discretion in making resource use decisions and in determining the proper balance between preservation and enjoyment. ^[6] With wildlife in particular, the agency initially applied this statutory language inconsistently, sometimes emphasizing preservation ^[7] and at other times highlighting use and enjoyment. ^[8]

[*pg 148]

In 1978, Congress amended the NPS's responsibilities with the Redwood National Park Expansion Act, ^[9] which states in part that:

Congress further reaffirms, declares, and directs that the promotion and regulation of the various areas of the National Park System . . . shall be consistent with and founded in the purpose established by the first section of the Act of August 25, 1916, to the common benefit of all the people of the United States. The authorization of activities shall be construed and the protection, management, and administration of these areas shall be conducted in light of the high public value and integrity of the National Park System and shall not be exercised in derogation of the values and purposes for which these various areas have been established, except as may have been or shall be directly and specifically provided by Congress. ^[10]

This statement reaffirms and strengthens Congress's earlier pronouncement on the NPS's duties, because it requires that the agency's actions be consistent with the conservation purpose of the parks. ^[11]

In the late 1960s, the NPS also began implementing less intrusive techniques for the management of wildlife. This policy -- which has come to be called natural regulation -- "relies on ecological processes to determine, or regulate, population conditions of native plants and animals to the extent practicable." ^[12] Under a natural regulation regime, "[w]ildlife populations are allowed to fluctuate without direct human intervention." ^[13] The agency's policy, by the 1980s, "had evolved to emphasize maintenance of natural ecological processes as a means of managing native wildlife. The tradition of nonintervention in wildlife dynamics in U.S. national parks is an outgrowth of this policy . . . ." ^[14] This approach was formalized in a series of Management Policies, with the latest being Management Policies 2006. ^[15] In this document, NPS managers are told to "adopt park

[*pg 149] resource preservation, development, and use management strategies that are intended to maintain the natural population fluctuations and processes that influence the dynamics of individual plant and animal populations, groups of plants and animal populations, and migratory animal populations." ^[16] Therefore, the NPS's current policy is generally to avoid interfering with population dynamics.

Only under unusual circumstances is the natural regulation rule set aside for a more active management approach. For instance, the NPS may remove wildlife from parks where the agency determines that such removal is necessary for the protection of park resources. ^[17] In general, the Organic Act requires a finding of "detriment" before the NPS may destroy park wildlife: "The Secretary of the Interior . . . may also provide in his discretion for the destruction of such animals and of such plant life as may be detrimental to the use of any of said parks, monuments, or reservations." ^[18] There is also an NPS policy that requires "an explicit finding of detriment by a park superintendent when a controlled harvest program is contemplated, i.e., a program designed to kill a percentage of a herd [or population] for no other reason than the desire to reduce the size of the herd [or population]." ^[19] So, while artificial manipulation of wildlife

[*pg 150] populations is permissible, the circumstances under which the NPS can take such action are quite narrow, and the NPS must first make its case for choosing to do so.

The NPS has a long history of court-supported preemption of state wildlife laws where those laws conflict with the NPS's mission or regulations. ^[20] In New Mexico State Game Commission v. Udall, the Tenth Circuit Court of Appeals found that the NPS had the authority to remove deer from Carlsbad Caverns National Park for research purposes without seeking a permit from the state as required under New Mexico state law. ^[21] The court added that if the State felt that the law gave too much authority to the NPS, the remedy was not with the courts since the law is valid and there was no abuse of the discretion it created. ^[22] Similarly, in United States v. Moore, the West Virginia Southern District Court, citing New Mexico State Game Commission, stated that "the power of the United States to regulate and protect wildlife living on the federally controlled property cannot be questioned." ^[23] In that case, the court found that the NPS had the authority to prevent the state from spraying pesticides to eliminate black flies in the New River Gorge National River because the NPS's regulations prohibited the taking of wildlife -- including black flies. A final example can be found in United States v. Brown, where the State of Minnesota wanted to assert the dominance of state hunting laws on waters adjacent to and surrounded by Voyageurs National Park. ^[24] Here, the court stated bluntly that "[w]here the State's laws conflict with the . . . regulations of the National Park Service . . . the local laws

[*pg 151] must recede." ^[25] It is clear that the NPS has the authority to regulate activities in park areas even where these regulations conflict with state regulations.

As...