LEGAL RULES, ECONOMIC SELECTION AND WILDLIFE CONSERVATION DEAN LUECK* Project summary. This project will develop new research on the effect of differential legal ownership regimes for wildlife on the conservation outcomes of those species. The project will focus on two species: the Bison or Buffalo (Bison bison) and the Caribou or Reindeer (Rangifer tarandus). Both species have been and currently are governed by different legal ownership regimes. In the U.S. bison are generally governed as domestic livestock and thus subject to ownership like cattle with the attendant rights, obligations and liabilities. Domestic bison can be bought, sold and transported like cattle but are also required to be vaccinated like cattle. In fewer cases (one region of Utah and on National Parks) bison are legally governed as wildlife, free to roam and harvested only per state regulations. Similar legal differences are found for Rangifer taranadus known as caribou in North American and reindeer in Europe. In North America caribou are generally (but not always) governed as wildlife but in Europe reindeer are usually (but not always) governed as private livestock. The incentives for management, husbandry and conservation are expected to be driven by the legal ownership incentives that govern these species and the project will seek to develop economic models of management and conservation and collect data on bison and reindeer/caribou populations to test the implications from these models. A regime of private ownership gives incentives to establish and grow populations in ways that a regime of wildlife does not, but this regime also is likely create populations with different characteristics (e.g., sex-ratios, age distribution) from populations governed as wildlife. This project will seek evidence for these differences and their implications for conservation benefits. Draft of August 19, 2019: do not cite, circulate or distribute. Note to PERC seminar attendees – this is a very preliminary draft that sketches out the basic framework and suggests work to be done. “***” indicate weak transitions and work to be done. *Department of Economics and Ostrom Workshop, Indian University, Bloomington IN. [email protected]. This paper was developed during my visit as Julian Simon Fellow at PERC 2019. Discussions with Jim Huffman and Kyran Kunkel have been helpful in developing this project. 1 PAPER OUTLINE I. INTRODUCTION II. BISON AND REINDEER – A BRIEF ECONOMIC & LEGAL HISTORY A. Bison B. Reindeer III. ECONOMIC MODEL A. Management under wildlife law B. Management under domestic law C. Implications IV. DATA & EVIDENCE A. Case Studies 1. Yellowstone Bison 2. Henry Mountains Bison 3. American Prairie Reserve Bison 4. Sami Reindeer 5. South African Wildlife B. Bison 1. Conservation Herds 2. Commercial Herds C. Reindeer 1. North American vs. Europe 2. Norway -- 3. Reindeer Peoples in Russia V. DISCUSSION & CONCLUSION VI. REFERENCES VII. APPENDICES 2 If it was the common law that sheep and lambs belonged to nobody, it would be impossible to preserve them from utter destruction. Each man, when he saw a sheep or lamb, would take and sequester it for his own use, lest his neighbor should get the start on him. There is no common or statute law [in the United States] protecting fish and game, therefore our fish and game are rapidly disappearing. What we need is a law, not simply protecting game and fish... but making game and fish the property of the owners of the land on which they are found, and the streams through whose territory they run.1 1. INTRODUCTION In 2005 bison were reintroduced to the plains of north central Montana by a new NGO called American Prairie Reserve (APR). APR’s grand goal is to recreate an intact prairie ecosystem of over 3 million acres and the key to that end was to introduce the dominant grassland species – the American Bison. To implement this goal APR has done two things. First, they bought rangeland from private landowners and removed cattle from that land. Second, they bought bison from Wind Cave National Park2 and released them on the range. This effort by APR is possible only because of the legal system of ownership for bison in Montana. In Montana and most state, bison are considered as domestic livestock under the law and subject to ownership like cattle or sheep. APR could buy and release bison on its land but cannot do the same for deer or wolves. *** The exploitation and conservation of natural resources depends on the structure of property rights to those assets and those rights in turn depend, often crucially, on the prevailing legal rules. As the APR-bison case shows, this is also true for animals, both domestic and wild. xx Consider, for example, governance of the American bison (Bison bison).3 Today, many bison are privately owned like domestic cattle, but some are also under the administration of national 1 Forest and Stream (volume 5, January 13, 1875, page 361) and cited in Tober (1976, p.122.) 2 It is common for national parks with bison to sell animals each year. 3 Bison bison include two subspecies – the plains and wood bison – which are distinguished later in the paper. 3 park managers and state wildlife agencies where the ownership is less clear. Prior to extensive European contact, Native Americans governed bison as common property with enforcement of hunting territories against other tribes and internal tribal rules about hunting times and methods. During the 19th century as the indigenous peoples were conquered, the bison stocks were subjected to open access depletion and nearly exterminated before they ultimately become governed largely as domestic animals under state agricultural laws. These laws are detailed later in this study. Reindeer or rangifer tarandus (known as caribou in North America) are governed as wild animals in Canada and the US, subject only to full ownership upon harvest. In Europe, however, there is a wide range of governance regimes. Most populations of reindeer come from domesticated stocks and have been governed as private (sometimes communal) property. In other cases reindeer are wild (and never domesticated). *** Wild animals can be distinguished from domestic animals by examining the property rights associated with various species (Lueck 1989). A population or stock of animals is completely wild only when there exists open access. A stock is fully domestic only when property rights to the stock are perfectly defined and enforced. Ownership can take place over populations (e.g., a herd of deer) or over individuals (e.g., a trained tiger), though the focus here is on ownership of populations and other aggregations of individuals. One can also consider wild versus domestic in terms of the animals' habitat and behavior (Lueck and Torrens 2019). The more natural the habitat, the more wild the animals are. In everyday usage "wild" has implications about ownership and habitat. It also follows that ownership affects animal behavior (and ultimately biology) by altering the natural parameters faced by the animals. It is also true that humans affect the population even 4 without ownership, because open access exploitation can lead to over harvest and other impacts. Both concepts of wild and domestic are incorporated in the analysis below. *** This project will examine the implications for the management and conservation of species under wild and domestic legal regimes. While the law of domestic animals offers incentives for husbandry and habitat investment, it also creates differential selection pressures on populations that can be in conflict with more ‘pure’ conservation goals. Section 2 provides and overview of the economic and legal history of bison and reindeer. In section 3, I present an economic model of wildlife management that depends on legal constraints. A key part of the model is the idea of “economic selection.” Economic selection means that characteristics of animals will be chosen (and other excluded) depending on the objective of the owner/manager of the populations. The law of wild and domestic animals will shape the objectives faced by owners/managers. In section 4, I examine the implications of these models against data on populations of bison and caribou. Section 5 is a discuss and short conclusion. II. BISON AND REINDEER – A BRIEF LEGAL AND ECONOMIC HISTORY In the United States wildlife are governed by a legal/regulatory regime recently labeled the ”The North American Model of Wildlife Management” in which state wildlife agencies have the dominant management authority and landowners and other government units have lesser authority (Lueck 1989, 2017). The earliest state controls simply restricted the time of year during which it was legal to kill game. When these restrictions were contested, numerous court decisions bolstered the 5 states' authority to regulate the taking and trading of wildlife consistently upholding state wildlife regulations.4 Today, states have the dominant regulatory authority over wildlife control and use, typically vested in a state "fish and game" or "wildlife" agency (Lund 1980 and Tober 1989). The key components of modern game laws and regulations, administered and enforced by game departments, include seasonal restrictions (and sometimes prohibitions) on taking wildlife, prohibition or severe restrictions on game trade, licensing requirements for legal taking of game, and restrictions on the methods by which animals can be taken. Game departments also administer state wildlife refuges and undertake research (e.g. population surveys, re-stocking programs). The federal government has dominant authority for endangered species (under the 1973 Act) and for species linked to international treaties (e.g. migratory waterfowl). Legally species governed as wildlife have no owner while the animals are alive. When legally taken an animal becomes the private property of the taker subject to many restrictions on use and transfer. An important feature of this ownership regime is that the regulatory authority is not liable for damages caused by wild populations.5 *** Bison bison, the American Bison, is a large herbivore also known as the buffalo.