Environmental Law Under Trump: Public Lands, Wildlife, and Federalism

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Environmental Law Under Trump: Public Lands, Wildlife, and Federalism Sandra B. Zellmer Robert B. Daugherty Professor, Nebraska College of Law Distinguished Visiting Professor, Montana School of Law sandra.zellmer@umontana.edu Lewis & Clark Law School Apr. 6, 2018

HISTORY: DEBUNKING MYTHS; DRAWING PARALLELS Historically, public lands have almost always served to unify, not divide, the country (Leshy, Debunking Myths 2018) o The breathing space of the Nation (Nixon 1971) From the beginning, both Congress and the Executive Branch viewed public lands as a means of meeting national policy objectives o Common schools and land grant universities o Watershed protection for urban residents and irrigators alike o Places of redemption and healing, individually and communally - e.g., Yosemite (Lincoln 1864); Yellowstone (Grant 1872)

HISTORY: DEBUNKING MYTHS; DRAWING PARALLELS o Conservation of birds, fish, and wildlife - Pribilof Isl. (fur seals 1869) - Afognak Isl. (forest & fish reserve, Harrison 1892) - Lacey Act (1900) - Pelican Isl. Reserve (Roosevelt 1903) - Game and Bird Preserves Protection Act (Refuge Trespass Act) (1906) - Three Arch Rocks, Klamath, Malheur Bird Reservations, OR (Roosevelt 1907-08) - Bison Fence (Wichita Forest Reserve, OK (1907); Nat l Bison Range, MT (1908) - Gila Wilderness (1924) (1964) - Endangered Species Preservation Act (1966) - Endangered Species Act (1973)

PREDATORS ON PUBLIC LANDS: A BREED UNTO THEMSELVES Ursus arctos horribilis -Yellowstone NP delisted Cr: Jim Peaco/NPS Canis Lupus Yellowstone NP delisted Cr: NPS; Dan Hartman (HCN)

Lynx Canadensis - threatened (Cr: US FWS) Gulo Gulo -- not listed (Cr: USFS) 'Immense political pressure' sank wolverine ENN Apr 5, 2016 FWS violated the ESA when it declined to protect the American wolverine and dismissed the threat of climate change amid political pressure, a federal court ruled yesterday.

NOTHING NEW UNDER THE SUN, FOR PUBLIC LANDS-LOVING PREDATORS ANYWAY BUSH Grizzly: Delisting I - Invalidated (9th Cir. 2011) Rocky Mt. Wolf: Delisting I - Invalidated (D. MT 2008) Lynx: Minimal Critical Habitat - D.A. Secretary Julie MacDonald: no conclusive evidence of climate threat - Invalidated (D.C. Cir. 2007) OBAMA Grizzly: Delisting II (2016) Rocky Mt. Wolf: Delisting II - Invalidated (D. MT 2010) - 2011 rider - Lynx: CH 2014 - Invalidated (D. MT 2016) - Wolverine: No listing - FWS R.D. Noreen Walsh: climate uncertainty - Invalidated (D. MT 2016) TRUMP Grizzly: Delisting II (cont d) - Litigation pending (2017) - FWS seeks comments on HSUS v. Zinke timber wolf case (D.C. Cir. 2018) - FWS M. for Stay denied (2018) Lynx: Delisting Likely Wolverine: Post-remand decision on listing pending

Gray Wolf Recovery Areas. Cr: US FWS

Wolverine Habitat (Potential) Cr: FWS Species Status Assessment 2017 Lynx Habitat Cr: FWS Species Status Assessment 2017

Grizzly populations (2016) CR: Eric Baker, CBD.

Cornfield Griz: Partnership works to keep the bears out of the corn in the Mission Valley @missoulian.com (Sep 16, 2017)

A DIFFERENCE OF DEGREE OR SOMETHING ELSE? Jan. 22, 2018. Secretary Zinke signed an agreement for King Cove, Alaska, to build a road through Izembek Wildlife Refuge. In 2013, Secretary Jewell rejected a proposal to build the $75 million road. In 1998, Secretary Babbitt agreed to provide $40 million to King Cover to upgrade its health clinic and buy hovercraft instead of a road to nowhere. Apr. 4, 2017. Trump stripped away protections implemented by Obama [through FWS rulemaking] for wolves, bears and other predators on wildlife refuges in Alaska. The bill, adopted by Congress [per the CRA] and signed by Trump, allows wolves and pups to be killed in their dens... and bears to be gunned down at bait stations.? Mar. 3, 2017. Zinke added a few Old West touches to his 1 st day as secretary. After riding in on a horse, he voiced concern about hunting being only for land-owning elite. And later revoked the Obama ban on lead ammunition on federal lands.

AT LEAST 2 SOMETHING ELSE DISTINCTIONS 1981-1989 1989-1993 1993-2001 2001-2009 2009-2017 2017-??? Wikipedia, Creative Commons Attribution-ShareAlike License (Feb. 7, 2018) No Checks & Balances Disdain for Science (Climate Change Especially)

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