The Role of Fish and Wildlife Evidence in Local Land Use Regulation

Abstract

This article originated as a Land Use Clinic report to the Montana Department of Fish, Wildlife & Parks. The Department presented the Land Use Clinic at the University of Montana School of Law with a series of questions designed to understand how Montana courts, as well as other courts nationwide, review local government land use decisions that implicate fish and wildlife issues. While the report contains Montana-specific analysis, it is also beneficial to local governments generally because it surveys court cases across the country and also suggests best practices that local governments nationwide can employ.

Recognizing that local land use decisions can profoundly affect fish and wildlife resources, this article addresses four topics: (1) the role of fish and wildlife evidence in enacting land use regulations; (2) the role of fish and wildlife evidence in decisions on specific development proposals; (3) the level of specificity required when using fish and wildlife evidence; and (4) resolving conflicting fish and wildlife evidence.

For each topic, the article provides a short answer, summarizes the general rules that apply to local governments, describes any Montana fish and wildlife cases on point, compares Montana law to other jurisdictions, and then concludes with suggested best practices for local governments.

Additionally, the article contains an appendix of state statutes specific to fish and wildlife evidence in land use decisionmaking.

Keywords: land use, fish and wildlife evidence, subdivision review, environmental review

JEL Classification: R14, Q20, Q22, K32, H7