Fish and Wildlife Management on Federal Lands: Debunking State Supremacy

Abstract

This Article reviews the authority of federal and state governments to manage wildlife on federal lands. It describes the most common assertions made by state governments regarding state powers over wildlife and then analyzes the relevant powers and limitations of the U.S. 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. An extensive collection of cases of conflict between federal and state agencies in wildlife management on federal lands show how federal laws 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. The myth that “the states manage wildlife and federal land agencies only manage wildlife habitat” 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 power but not of 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.

Yet there are ample opportunities 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 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 need to be provided meaningful opportunities to participate in, and influence, state decision making affecting federal lands and wildlife.

Keywords: Wildlife, federalism, endangered species, federal public lands, natural resources, sovereignty, public trust

JEL Classification: K11, K32, Q2