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Fish and Wildlife Management on Federal Lands 5_TOJCI.NIE (DO NOT DELETE) 12/1/2017 4:25 PM ARTICLES FISH AND WILDLIFE MANAGEMENT ON FEDERAL LANDS: DEBUNKING STATE SUPREMACY BY MARTIN NIE,* CHRISTOPHER BARNS,** JONATHAN HABER,*** JULIE JOLY,**** KENNETH PITT***** & SANDRA ZELLMER****** This Article reviews the authority of federal and state governments to manage wildlife on federal lands. It first describes the most common assertions made by state governments regarding state powers over wildlife and then analyzes the relevant powers and limitations of the United States Constitution and federal land laws, regulations, and policies. Wildlife-specific provisions applicable within the National Park System, National Wildlife Refuge System, National Forest System, Bureau of Land Management, the special case of Alaska, and the National Wilderness Preservation System are covered, as is the Endangered Species Act. We reviewed an extensive collection of cases of conflict between federal and state agencies in wildlife management on federal lands. These cases show how federal land laws, regulations, * Martin Nie is Director of the Bolle Center for People and Forests and Professor of Natural Resources Policy, W.A. Franke College of Forestry and Conservation, University of Montana. ** Christopher Barns is a wilderness consultant and former Wilderness Specialist, Bureau of Land Management National Landscape Conservation System, and BLM Representative at the Arthur Carhart National Wilderness Training Center. *** Jonathan Haber is a wildlife planning and policy consultant and a former planning specialist for the United States Forest Service. **** Julie Lurman Joly is former Associate Professor of Resources Law and Policy at Alaska- Fairbanks. ***** Kenneth Pitt is Adjunct Instructor in the Natural Resource Department at Salish Kootenai College and formerly a General Attorney for the USDA-Office of the General Counsel. ****** Sandra B. Zellmer is Robert B. Daugherty Professor of Law, University of Nebraska- Lincoln. [797] 5_TOJCI.NIE (DO NOT DELETE) 12/1/2017 4:25 PM 798 ENVIRONMENTAL LAW [Vol. 47:797 and policies are frequently applied by federal agencies in an inconsistent and sometimes even unlawful fashion. They also demonstrate how commonalities found in state wildlife governance, such as sources of funding and adherence to the North American Model of Wildlife Conservation, often exacerbate conflict over wildlife management on federal lands. Federal land management agencies have an obligation, and not just the discretion, to manage and conserve fish and wildlife on federal lands. We debunk the myth that “the states manage wildlife and federal land agencies only manage wildlife habitat.” The myth is not only wrong from a legal standpoint, but it leads to fragmented approaches to wildlife conservation, unproductive battles over agency turf, and an abdication of federal responsibility over wildlife. Another problem exposed is how the states assert wildlife ownership to challenge the constitutional powers, federal land laws, and supremacy of the United States. While the states do have a responsibility to manage wildlife as a sovereign trust for the benefit of their citizens, most states have not addressed the conservation obligations inherent in trust management; rather, states wish to use the notion of sovereign ownership as a one- way ratchet—a source of unilateral power but not of public responsibility. Furthermore, the states’ trust responsibilities for wildlife are subordinate to the federal government’s statutory and trust obligations over federal lands and their integral resources. The Article finishes by reviewing the ample opportunities that already exist in federal land laws for constructive intergovernmental cooperation in wildlife management. Unfortunately, many of these processes are not used to their full potential, and states sometimes use them solely as a means of challenging federal authority rather than a means of solving common problems. Intergovernmental cooperation must be a mutual and reciprocal process, meaning that state agencies need to constructively participate in existing federal processes, and federal agencies should be provided meaningful opportunities to participate in, and influence, state decision making affecting federal lands and wildlife. I. 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 5_TOJCI.NIE (DO NOT DELETE) 12/1/2017 4:25 PM 2017] DEBUNKING STATE SUPREMACY 799 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 5_TOJCI.NIE (DO NOT DELETE) 12/1/2017 4:25 PM 800 ENVIRONMENTAL LAW [Vol. 47:797 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 ....................................................
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