Western Association of Fish & Wildlife Agencies. White Paper: Wildlife Management Subsidiarity

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1 Western Association of Fish & Wildlife Agencies White Paper: Wildlife Management Subsidiarity Consideration of federal preemption efforts to pursue wildlife management through enhanced states authority for greater localized effectiveness. Prepared for: WAFWA & AFWA adoption A White Paper Prepared by: WAFWA Commissioners State Authorities Subcommittee Ernest R. Perkins, Chair Jennifer L. Martin, Past Chair Members: Jerry Galles, Wyoming Jack Husted, Arizona Tony McDermott, Idaho Chuck Perry, Washington Bob Streeter, Colorado Bob Broscheid, AZGFD The Subcommittee expresses appreciation to the WAFWA Legal Committee especially Mr. Jim Odenkirk, Vice Chair, for their exceptional service & support. June, 2011

2 Executive Summary WAFWA State-Federal Wildlife Management White Paper This white paper describes the need for greater substantive authority for states to more effectively and efficiently remedy localized wildlife issues as they arise. Recognizing that a uniform national approach to resource management is sometimes required, wildlife resource management has inherently localized variability within a state s jurisdictional boundaries, and poses unique problems that require tailored solutions. The Western Association of Fish and Wildlife Agencies (WAFWA) Commissioners Committee proposes a plan that includes maximizing individual states authorities to effectively plan and manage wildlife resources to ensure their sustainability and enhance their potential for future growth. This plan would require Congressional action for a more robust delineation of states statutory authority to manage their respective wildlife issues, including those that arise on federal land. The legislative strategy could be a single omnibus provision, or a more conservative approach that slowly amends acts over time. While Congress has recognized the states historical authority and expertise in wildlife conservation, WAFWA identifies new legislative wording to clearly define the states primary wildlife management authority, thereby giving greater flexibility to appropriately fulfill the trust responsibilities over wildlife resources. We identify in this white paper some of the concerns arising from divergent state and federal resource management policies, and offer solutions that will require further collaboration between the states, Congress and federal agencies. Historical Context 2 Public Trust and the North American Model of Wildlife Conservation In order to fully appreciate today s fish and wildlife management issues that stem from state-federal divergence, it is important to understand the long history of events that defined the states public trust responsibility over wildlife, state fish and wildlife management authorities and, more importantly, the citizens desire to entrust that authority to the states. The notion of state ownership in wildlife culminated in 1896 when the Supreme Court clearly articulated the theory of state ownership of wildlife in Geer v. Connecticut, 161 U.S. 519 (1896) and made the first explicit reference to wildlife as a public trust resource. The Court stated that the power or control lodged in the State resulting from the common ownership [of wild animals], is to be exercised... as a trust for the benefit of the

3 people and not as a prerogative for the advantage of the government, as distinct from the people, or for the benefit of private individuals as distinguished from the public good. Since the Geer decision, however, the courts have eroded the state ownership theory. In Missouri v. Holland, 252 U.S. 416 (1920, the Court stated that a claim of state ownership in wildlife is to lean upon a slender reed. Despite the fact that many states have codified in statutes and constitutions the state ownership concept, the Court finally disposed of the state ownership concept in Hughes v. Oklahoma, 441 U.S. 322 (1979). Nonetheless, the erosion of state ownership has not eliminated the states ongoing and traditional role in regulating fish and resident wildlife. In fact, most federal agencies recognize that the states possess broad trustee and police powers over fish and wildlife within their borders, including fish and wildlife found on federal lands within a state. 43 C.F.R On the heels Geer v. Connecticut, a few state game officials in the West felt the need to join together to solve a series of game management questions that they had in common. This led to the formation of WAFWA. Of particular importance at that time was the states ability to perform game management functions in the context of the growing federal land management agencies. These federal agencies were in the process of carving out areas of responsibility which many people believed included the management of game on the vast areas of federal lands in the West. During the first decade of WAFWA s existence, the primary interest was to solidify the states authorities pertaining to game management. These efforts succeeded and the Forest Service acknowledged the states authorities for the management of big game in national forests throughout the West. This established the precedence that states should act as primary managers and experts of their respective resident game and fish. WAFWA and the Forest Service have since become working partners in the field of wildlife management on national forests. States Challenges & Limitations WAFWA s first decade represented a monumental step in establishing state authorities over game management. Congress later passed several important environmental laws that define and expanded the federal government s role in protecting America s natural resources. For example, the National Environmental Policy Act (NEPA), Endangered Species Act (ESA) and Wilderness Act (Act) clearly articulate the intent of Congress regarding federal agencies authority to protect natural resources including wildlife. Often the state wildlife agencies roles and 3

4 authorities in implementing the provisions of the federal legislation were not clearly defined. This has lead to conflicting interpretations and inconsistent application of the long-standing federal policy deferring to state wildlife management authority on federal lands. Conflicts have arisen in such areas as state permitting requirements, sharing of data, state hunting seasons, fish and wildlife population goals and objectives, and federal land and resource management planning efforts. Recognizing this shortfall, some state and federal agencies have worked on defining expectations through MOUs and other inter-agency agreements. These agreements, however, have limited authority to bind the parties and have been inconsistently followed depending on leadership changes in federal agencies.. Existing Laws and Inconsistent Application The issue facing the states today is an inconsistent recognition of the states primary wildlife management jurisdiction and differing levels of cooperation or coordination between federal and state resource management agencies. WAFWA member states believe the erosion of state authority to manage wildlife on federal lands is attributed to: Inconsistent language in federal legislation reserving to the states authority to enforce state fish and wildlife laws and authority to manage wildlife on federal lands. Inconsistent federal agency interpretation of the various savings provisions in federal law. Perception that in all cases federal law preempts state wildlife management authority, despite congressional recognition of state management authority. Failure to adhere to agreements (e.g., MOUs) that are intended to define respective state/federal management authority WAFWA posits that there are opportunities to resolve these issues. In order to provide the states with the necessary tools to address their localized challenges, WAFWA recommends that Congress adopt new provisions that clearly establish state fish and wildlife management authority and direct that all federal regulations and policies be consistent with congressional intent. Congress has previously taken action recognizing the states fish and wildlife management jurisdiction. Inconsistent language in various savings clauses, and court interpretations limiting state authority have perpetuated conflicts among state and federal agencies. For instance, the following congressional acts demonstrate the inconsistency and inhibit effective state wildlife management on state and federal lands: 4

5 National Wildlife Refuge System Administration Act of 1966: (16 U.S.C. 668dd-668ee, October 15, 1966, as amended 1968, 1973, 1974, 1976, 1978, 1987, and 1988) Except for listed threatened and endangered species where a cooperative agreement under the Endangered Species Act does not exist, nothing in the Act authorizes the Secretary to control or regulate hunting or fishing on lands outside the System. Regulations permitting hunting and fishing within the System shall be, to the extent practicable, consistent with state fish and wildlife laws and regulations and management plans. Seemingly, this Act does not affect the states jurisdiction to manage, control, or regulate fish and wildlife within the refuge system, to the extent state law and authority does not conflict with federal law. Despite the purpose of the savings clause, states have experienced resistance to and sometimes prohibition against hunting in refuges, such as hunting of mountain lions in the Kofa National Wildlife Refuge in Arizona and wolves in the Alaska Maritime National Wildlife Refuge. Additionally, while hunting is explicitly authorized as a wildlife refuge purpose, state attempts to remove wildlife from a refuge in the interest of wildlife management and conservation is not expressly addressed in the statute, yet such management actions are routinely restricted without an adequate explanation how the state s actions conflict with federal law. Wilderness Act: (16 U.S.C , September 3, 1964, as amended 1978) The Act also does not affect the jurisdiction of the states with respect to wildlife and fish in the national forests. Though it would appear this language preserves state wildlife management authority within a wilderness area, the federal agencies routinely stymie state attempts to manage in wilderness areas. One example is ongoing in Idaho, in which the state wildlife agency wants to use aircraft for wolf monitoring in wilderness and the Forest Service has restricted this use. Wild Free-Roaming Horses and Burros Act: (16 U.S.C , December 15, 1971, as amended 1978) All management activities must include consultation with state wildlife agencies to protect the natural balance of all wildlife species, particularly endangered species. Any adjustments in forage allocations must take into account the needs of other wildlife species. Inconsistent application of this language has led to significant wildlife habitat degradation throughout the west. Fish and Wildlife Conservation Act: (16 U.S.C , September 29, 1980, as amended 1986, 1988, 1990 and 1992) Nothing in the Act should be construed as affecting: the authority, jurisdiction or responsibility of the states to manage, control or regulate fish and resident wildlife under state law 5

6 Endangered Species Act- Cooperation with the States: (ESA 6) The Secretary is to cooperate to the maximum extent practicable with the states, including consulting with a state before acquiring land, water or interests for conservation of listed species. The Secretary may enter into agreements with states for administration and management of areas established for conservation of listed species. Cooperative agreements may also be entered into with states which establish and maintain adequate and active programs for conservation of listed species. In Arizona, the U.S. Fish and Wildlife Service has not collaborated with the state wildlife agency to complete a revised Mexican Wolf Recovery Plan that provides achievable and legally defensible population objectives adequate to justify and sustain delisting. Ultimately, this is hindering wolf conservation efforts. Similar situations exist throughout the country. Sikes Act: (16 U.S.C. 670a-670o, September 15, 1960, as amended 1968, 1974, 1978, 1982, 1986, 1988 and 1989) The Secretary of Defense is authorized to carry out a program of planning for, and the development, maintenance, and coordination of, wildlife, fish, and game conservation and rehabilitation in each military reservation in accordance with a cooperative plan agreed upon by the Secretary of Defense, the Secretary of the Interior, and the appropriate state agency for the state in which the reservation is located. Nothing in the Act's provisions on public lands may enlarge, diminish or affect: the rights of Indians or Indian tribes to the use of water or natural resources or their rights to fish, trap or hunt wildlife as secured by statute, agreement, treaty, executive order or court decree; or existing state or federal jurisdiction to regulate those rights either on or off reservations. Multiple-Use Sustained-Yield Act of 1960: (16 U.S.C , June 12, 1960) The Act authorizes the Secretary to cooperate with interested state and local governmental agencies and others in developing and managing the national forests. These Acts recognize state jurisdictional authority and require federal agencies to cooperate with the states in wildlife management. These various provisions, however, fail to provide uniform and unequivocal direction sufficient for the states to operate with the flexibility that is necessary to fulfill their trust responsibilities to conserve wildlife. As some courts have observed, these savings clauses do no more than preserve the status quo, and this is problematic for both state and federal agencies when there exist fundamental disagreements over the status quo. Moreover, using different terms, such as coordination, cooperation and consultation lead to inconsistent relationships between state and federal agencies, often resulting in a diminished state role. Without clear 6

7 statutory language that establishes the states primary wildlife management jurisdiction and a nondiscretionary federal duty to cooperate with the states, state authority will continue to erode and be subject to ever-changing federal policies. Proposed Solutions & Future Legislation In an effort to restore the balance of power and obtain federal acknowledgment of state jurisdiction, as well as require federal agencies to cooperate meaningfully with the states, the WAFWA Commissioners State Authorities Subcommittee proposes the following language to amend or replace existing provisions in federal law or for use in all future legislation: Nothing in the Act shall be construed as affecting or intending to interfere with the laws of the several states to regulate hunting and fishing or to supersede, abrogate or otherwise impair the state s primary jurisdiction to manage or control fish and resident wildlife in a manner not inconsistent with the purpose of this Act. The Secretary, in carrying out this Act, shall proceed in conformity with such applicable state laws, policies and management plans and shall cooperate with the states and develop jointly agreed upon wildlife management plans. This language would ensure that federal law does not preempt state management authority unless it conflicts with a federal objective and will provide clear and consistent direction for state and federal agency cooperation in wildlife management. 7