RESPONSE TO KISONAK'S "FISH AND WILDLIFE MANAGEMENT ON FEDERAL LANDS: THE AUTHORITIES AND RESPONSIBILITIES OF STATE FISH AND WILDLIFE AGENCIES".

• Author: Nie, Martin A.
• Position: Article by Lane Kisonak in this issue, p. 935

1. INTRODUCTION 974 II. THE PUBLIC TRUST DOCTRINE APPLIED TO WILDLIFE 976 III. THE NORTH AMERICAN MODEL OF WILDLIFE CONSERVATION 979 IV. STATE OWNERSHIP AND CONSTITUTIONAL LIMITATIONS 982 V. PREEMPTION AND ANTI-COMMANDEERING DOCTRINE 985 VI. REGULATION OF ACTIVITY ON STATE LAND NEAR OR WITHIN FEDERAL LAND 986 VII. PARENS PATRIAE, POLICE POWERS, AND NATURAL RESOURCE INTERESTS 988 VIII. WILDLIFE AND THE WILDERNESS ACT 989 IX. NATIONAL WILDLIFE REFUGES 992 X. CONCLUSION 996 I. INTRODUCTION

   Do you want to perpetuate a myth? Then say it again. And again. And again.

   Equating repetition with the truth and believing false information due to repeated exposure is known as the "illusory truth effect." (1) To repeatedly use short, simple phrases and slogans with confidence can make for good politics, but it does nothing to solve real problems and conflicts related to the interjurisdictional complexities of wildlife management on federal public lands.

   None of the core findings and assertions made in our Article are seriously challenged by Kisonak. Instead of working through the complexities involved in managing wildlife on federal public lands, his approach is to mischaracterize our work, evade our central findings and recommendations, and call upon a distorted view of the public trust doctrine (PTD) and an "inspirational" North American Model of Wildlife Conservation as a "motivating conceptual force for state, federal, and non-governmental conservation professionals." (2)

   Our response tracks the core assertions and big themes presented in Kisonak's response, starting with the broad PTD and constitutional context and finishing with the statute-specific claims he makes about the Wilderness Act (3) and the National Wildlife Refuge System Administration Improvement Act. (4) For brevity's sake we chose not to respond to every claim made in the response because we feel confident we adequately addressed those issues in our Article or because we fail to follow the logic of Kisonak's argument in places. We do, however, want to be clear at the outset that in no way do we discredit the role of the Association of Fish and Wildlife Agencies (AFWA) "as a convener and facilitator of state wildlife agencies." (5) What we discredit are several recurring arguments made by AFWA regarding state primacy in managing wildlife on federal lands.

   As a general matter, Kisonak claims we ignored the ambiguities in federal case law. (6) This assertion is unfounded. Throughout our Article, we fairly, and at times tediously, addressed the nuances of these cases. Kisonak uses our treatment of Hughes v. Oklahoma (1) for illustration, contending our "simplistic view does not engage with many of the real issues in play." (8) But we deal fairly with the complexity of this important case. (9) For arguments sake, we could have cherry-picked the Court's finding that unqualified claims of state "ownership" of wildlife were a "19th-century legal fiction." (10) But we did not do so. Instead, we make clear the Court rejected claims of state ownership in ways that are "repugnant to the Commerce Clause" (11) and federal supremacy, while acknowledging the Court also recognized the "legitimate state concerns for conservation and protection of wild animals" and the states are not "powerless to protect and conserve wild animal life within their borders." (12)

   This was our even-handed approach to all of the foundational federalism cases we reviewed. As we state in our conclusion:

   A consistent pattern of primary federal authority emerges from these cases, but even where the Supreme Court corrected itself in overturning Geer v. Connecticut, it did so carefully and constructively, finding in favor of the federal government and interstate commerce but also recognizing the "legitimate state concerns for conservation and protection of wild animals. (13) II. THE PUBLIC TRUST DOCTRINE APPLIED TO WILDLIFE

   Our Article begins by laying out the most common claims and arguments made by state wildlife agencies and AFWA in the case studies we first investigated for the project. (14) We found the PTD is most often invoked by states when declaring their management authority to regulate fish and wildlife resources. (15) It is used, in other words, as a power play and a means to assert exclusive control over wildlife. We returned to the subject in our analysis and recommendations, first by reviewing the trust-like language found in federal public lands and wildlife law and federal regulations specifying fish and wildlife "are held in public trust by Federal and State governments for the benefit of present and future generations of Americans." (16) This is a complicated area of law, and we carefully work through the doctrine's variations and possible applications, ending with what we believe is a constructive attempt to harmonize the multiple trust obligations found on federal lands (federal, state, and tribal). (17) We believe that a "co-trustee" approach could help reframe what is too often an adversarial relationship between federal and state governments. (18)

   What is AFWA's response to our proposed sharing of trust duties and obligations in order to more effectively conserve interjurisdictional fish and wildlife populations? No thank you. Instead, Kisonak takes the liberty of redefining the very essence and legal foundation of the PTD. (19) Not of concern are the substantive and procedural obligations that are inherent in any serious application of trust management of natural resources. (20) Instead, the doctrine is narrowly defined as providing "a state's exclusive authority and duty to protect those resources as a fiduciary." (21)

   Kisonak then takes issue with our rather non-controversial assertion that the courts and state governments have generally done little to fill in the details of trust management as it applies to fish and wildlife. (22) "These [trust management] duties," he says, "are given life outside the courtroom by state fish and wildlife managers across the country, and agencies along with their partners have picked up a lot of the courts' slack in defining these duties." (23) No evidence is cited to support this claim, and the corresponding footnote includes no examples of a state agency defining--never mind performing--the duties that go along with public trust management. (24)

   Recent research makes us even more skeptical of the claim. Nie, Landres, and Bryan empirically investigated implementation of the PTD as applied to wildlife by thirteen state fish and wildlife agencies in the U.S. West. (25) In only two of the eighty-six decision-making documents they reviewed did they find a discernable application of public trust principles or the PTD to a management policy or decision made by a state wildlife agency. (26) Their research exposes a significant gap between the legal assertions made by western states about the PTD and the actual decisions that are made by state agencies. As their study concludes:

   If the PTD serves as the "legal foundation" of state wildlife management then it ought to mean something in practice. It is time for state wildlife agencies to actually practice trust management or to stop invoking the PTD in courts of law. To the extent states suggest that the PTD is implied in their decision-making, that is not sufficient to meet their fact-finding obligations and leaves the PTD as mere guesswork. Granted, there are variations of the PTD and its application will depend on a state's common law and the management issue in question. But the PTD is not just political rhetoric nor should it be selectively used by states to assert jurisdictional primacy and unfettered control of wildlife vis-a-vis federal and tribal governments. Instead, the PTD comes with significant legal obligations, substantive and procedural. For states and their representatives to ask the judiciary to give the PTD "due force," and to then not apply trust-based decision-making on the ground, is to invite future legal challenge. (27) It is within the context of the PTD Kisonak then takes issue with our Article's criticism that "state endangered species acts and other protections are of comparatively lesser value and that gaps run through management of non-listed species." (28) This argument, he says, "takes no heed of the shift in the landscape it purports to seek--that is, states increasingly take on affirmative conservation duties for non-game species" and a "casual scan of state fish and wildlife agency websites clearly demonstrates deep commitments to managing non-game species and the habitats upon which they depend." (29) Of course, it is not a website that protects federally unlisted non-game species but rather state laws and regulations matched with adequate funds and devoted personnel. And the fact remains that, with few exceptions, most states have relatively weak legislative programs designed to protect and recover imperiled species. (30) One recent study, for example, shows "[s]tates generally fail to prohibit habitat impairment by private parties, lack permit programs to minimize incidental harms to species and spur habitat conservation, and do not restrict state agency actions that undermine species recovery." (31) Another comprehensive study concludes that "conservation laws in most states are inadequate to achieve the [Endangered Species Act's] (32) conservation and recovery goals." (33)

   In the context of the PTD, we are puzzled yet possibly encouraged by Kisonak's use of Center for Biological Diversity, Inc. v. FPL Group, Inc. (34) and In Re Steuart Transportation Co. (35) In Center for Biological Diversity, Inc., plaintiffs used the PTD as a way to protect thousands of birds and raptors that were being killed by the operation of outdated wind turbines by private businesses in California. (36) The decision made it clear citizens have the right to bring a cause of action to enforce the public trust in wildlife, and so we are heartened AFWA agrees with this...