Wilderness and the Courts: Wildlife Management Issues in Wilderness

Wilderness and the Courts: Wildlife Management Issues in Wilderness

Peter A.

Appel

Alex W. Smith Professor

University of Georgia School of Law

Presented via Webinar

Sponsored by the

Carhart

Center

August 28, 2013

Who Manages Wildlife: The States?

Geer v. Connecticut

, 161 U.S. 519 (1896)

Involved interstate commerce in wild animalstaken in season“The sole consequence of the provision forbidding the transportation of game, killed within the State, beyond the State, is to confine the use of such game to those who own it, the people of that State.” (P.529)

Who Manages Wildlife: The States? (2)

Hughes v. Oklahoma

, 441 U.S. 322 (1979)

Restriction on exporting minnows from state held unconstitutional“We hold that time has revealed the error of the early resolution reached in that case, and accordingly Geer today is overruled.” (P.326)

Wildlife on Federal Lands

Hunt v. United States

, 278 U.S. 96 (1928)

Deer overpopulation in Kaibab Nat’l Forest (AZ)USFS orders them to be culled, withpersonnel having no tags, and deer taken out of season; state objects

Wildlife on Federal Lands (2)

Hunt v. United States

, 278 U.S. 96 (1928)

“[T]he power of the

United States to thus protect

its lands and property

does not admit of doubt

,

the game laws or any other

statute of the state

notwithstanding

.”

(

P.100

; citations omitted)

Wildlife on Federal Lands (3)

Kleppe

v. New Mexico

, 426 U.S. 529 (1976)Wild Free-roaming Horses and Burros Act

Wildlife on Federal Lands (4)

Kleppe

v. New Mexico

, 426 U.S. 529 (1976)“[W]hile the furthest reaches of the power granted by the Property Clause have not yet been definitively resolved, we have repeatedly observed that ‘[t]he power over the public land thus entrusted to Congress is without limitations.’” (P.539)“We hold today that the Property Clause ... gives Congress the power to protect wildlife on the public lands, state law notwithstanding.” (P.546)

Wildlife on Federal Lands (5)

See also

Wyoming v. US

, 279 F.3d 1214 (10th Cir. 2002) (upholding USFWS ban on vaccinating elk in National Elk Refuge)

Statutory Provision Governing Wildlife in Wilderness

Section 4(d)(8), 16 USC § 1133(d)(7):

The Wilderness Act of 1964

“Nothing in this Act shall be construed as affecting the

jurisdiction

or

responsibilities

of the several States with respect to wildlife and fish in the

national forests

.”

Who Is the Secretary?

Brown v.

USDOI

, 679 F.2d 747, 751 (8th Cir. 1982): “A careful reading of [the Wilderness Act] reveals ... that it applies only to mining activities within national forest lands designated as wilderness.... This provision of the Wilderness Act is not applicable to lands ... which are not national forest lands....” (Park Service lands)For BLM lands, once lands made wilderness, all WA provisions “which apply to national forest wilderness areas shall apply [to these areas]....” FLPMA § 603(c), 43 U.S.C. § 1782(c)Most post-1964 acts have extended authority to other agencies—check your statute

Questions?

Tustumena Lake

Wilderness

Soc’y

v. USFWS, 353 F.3d 1051 (9th Cir. 2003) (en banc)Program to restock lake with sockeye salmon fry

Tustumena Lake (2)

Project operated by nonprofit supported by voluntary fee on commercial fishers

Fry hatched at hatchery outside of wilderness

Enhancement project helps support commercial fishery outside wilderness as well as biological functions within wilderness

Tustumena Lake (3)

“We thus deal with an activity with a benign aim to enhance the catch of fishermen, with little visible detriment to wilderness, under the cooperative banner of a non-profit trade association and state regulators. Surely this fish-stocking program, whose antecedents were a state run research project, is nothing like building a McDonald’s restaurant or a Wal-Mart store on the shores of

Tustumena

Lake.” (P.1062)

Tustumena Lake (4)

Nevertheless, stocking program held to be a violation of the Wilderness Act:

“In light of the clear statutory mandate, the Wilderness Act requires that the lands and waters duly designated as wilderness must be left untouched, untrammeled, and unaltered by commerce. By contrast, the Enhancement Project is a commercial enterprise within the boundaries of a designated wilderness and violates the Wilderness Act.”

(P.1067)

Questions?

Emigrant Dams

High Sierra Hikers

Ass’n

v. USFS, 436 F. Supp. 2d 1117 (E.D. Cal. 2006)Maintenance (?) of several dams w/in wildernessFish stocking conducted by CA Dep’t of F&G, under MOU with USFS“[C]urrent fish stocking operations are for the purpose

of enhancing populations for

the benefit of anglers.” (P.1123)

Emigrant Dams (2)

“[T]he proposed actions in this case—the repair, maintenance and operation of the dam structures—are clearly and unambiguously contrary to the Wilderness Act.” (P.1132)

Emigrant Dams (3)

Minimum requirements?

“What the planned action seeks to accomplish ... is to reregulate flows in streams whose flows were not historically regulated for the purpose of enhancing a population of fish that did not historically exist and whose continuing existence is not dependent on the repair, maintenance or operation of the dam structures.” (

P.1133)“Because it is not possible to infer from [the WA] that establishment (much less enhancement) of opportunities for a particular form of human recreation is the purpose of the [WA], it is not possible to conclude that enhancement of fisheries is an activity” that meets the minimum requirements language. (P.1134)

Questions?

Kofa

Wilderness Watch v.

USFWS

, 629 F.3d 1024 (9th Cir. 2010)Project to enhance desert bighorn sheep population

Kofa (2)

Water tanks (guzzlers, i.e. permanent structures) for sheep

Guzzlers could be placed in refuge outside of wilderness

Much of support for water sources comes from state dep’t of fish and game

Kofa (3)

Court accepts that conservation of sheep is consistent with WA (

P.1036

)“[T]he Service’s own documentation strongly suggests that many other strategies could have met the goal of conserving bighorn sheep without having to construct additional structures within the wilderness area....” (P.1037)“[T]he record demonstrates that many alternative actions not prohibited by the Wilderness Act could have attained the Service’s goal....” (P.1039)Close areas during sensitive seasonsBan hunting altogetherSupply water sources outside of wilderness

Questions?

Wolf Collaring (Frank Church)

Wolf Recovery Found. v.

USFS

, 692 F. Supp. 2d 1264 (D. Idaho 2010)Plan to dart and collar wolves to monitor population; helicopters to be used; sponsored by state fish and game (P.1266)

Darting wolves in Yellowstone NP

Wolf Collaring (2)

“Helicopters ... are antithetical to a wilderness experience. It would be a rare case where machinery as intrusive as a helicopter could pass the [minimum requirements test].” (

P.1268

)“[T]his case may present that most rare of circumstances.” (P.1268)The purpose of the program “is much more than just to count numbers; it is also designed to improve the understanding ‘of the character of the wilderness prior to man’s intervention’ and ‘the predator/prey relationship that existed in the past.’” (P.1268)

Wolf Collaring (3)

“[T]he Court shares the plaintiffs’ concerns that this decision could be interpreted wrongly as a stamp of approval on helicopter use.” (

P.1270

)

Wolf Collaring (4)

Why court’s decision not an endorsement of helicopter use

“The proposed activity is designed to aid the restoration of a specific aspect of the wilderness character of the Frank Church Wilderness that had earlier been destroyed by man. The use of helicopters for any other purpose would be extremely difficult to justify under the Wilderness Act,

NEPA, or any categorical exclusion.” (P.1270)“[T]he next helicopter proposal in the Frank Church Wilderness will face a daunting review because it will add to the disruption and intrusion of this collaring project.” (P.1270)

Questions?

Takeaways

Federal government has ultimate authority over wildlife on federal lands

Federal government can as a policy matter allow state rules or policies to govern—but that is discretionary, not mandatory

Evaluate policies under Wilderness Act, NEPA, ESA, NFMA, Organic Act, Refuge Acts, FLPMA, and other federal statutes before deferring to states’ wishesCourts have been very leery of policies where they conflict with WA—consult agency counsel

“[S]

ecur

[

ing] for the American people of present and future generations the benefits of an enduring resource of wilderness.” Phone: (706) 542-5097Email: appel@uga.edu