The Supremacy of Federal Wildlife Management over States in the Era of Trump

  

The Supremacy of Federal Wildlife Management over States in the Era of Trump:   Martin Nie et al. have published an important paper titled “Fish and Wildlife Management on Federal Lands: Debunking State Supremacy” that is available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2980807 
 
The paper is relevant because over the past 40 years, there have emerged several conflicts over the role of the Federal government versus state governments in wildlife management on Federally-owned lands including national parks, Federal wildlife areas, national monuments, Federally-owned forests, Federal wilderness areas, and lands run by the Bureau of Land Management. They systematically study cases in which states (and others) argue that they (the states) should exercise control over wildlife in these areas based on a number of ideas including the Geer v. Connecticut case (that discussed states ownership as a “trust for the benefit of the people” and 10th Amendment (that gives to states powers not delegated to the U.S. by the Constitution.”)  Nie et al. demonstrate through a careful review of relevant court cases that the that state responsibilities “are subordinate to the federal government” concerning federal lands.  Concerning the 10th Amendment, Nie et al. prove that this “amendment states but a truism that all is retained which has not been surrendered” and again review court cases to show that in conflicts involving claims by states of powers due to the 10th Amendment, in most cases the Federal government has prevailed.  The Association of (state) Fish and Wildlife Agencies (AFWA) has cited the “North American Model of wildlife conservation” to support the idea that states should dominate wildlife conservation even on Federal lands and, indeed, they are pushing for a revision of Federal land laws that would establish state dominance over wildlife management on Federal lands in a manner that Nie et al. say is “a fundamental reinterpretation of existing wildlife law.”  The position of the AFWA is based on the presumption that support of hunting and angling are the primary purpose of wildlife management—the article brings out how these interests have strongly dominated most state wildlife agencies and have been buttressed by the reliance of these state agencies on revenue from hunting and fishing licenses. I devote an entire chapter (10) to a discussion of the politics of hunting and its impact on wildlife in my book. Nie et al. point out that ‘non-game” aspects of wildlife management have been ignored by the so-called North American Model.  One point not discussed by Nie et al. is that increasingly states are now supporting the privatization of hunting as well as passing laws (often constitutional amendments to state constitutions) that protect hunting and many states have done little for non-game wildlife.  The main point that the article makes is that Supreme Court cases clearly show that states are subordinate to the Federal government when there is a conflict between Federal and state wildlife management policies concerning Federal lands.
 
However, the article also shows that the Federal government and the agencies that have responsibilities for wildlife management (e.g., USFWS, BLM, National Park Service) have often not been forceful in asserting Federal dominance—they are often silent or sometimes overt in allowing states to run roughshod over wildlife conservation goals.  They cite several cases such as the refusal of federal agencies “to apply federal regulations to private holdings” in the Grand Teton National Park, that USFWS allowed Idaho to hire to kill packs of wolves in the Frank Church River of No Return Wilderness (to increase the size of elk herds), and annual “predator killing contests on Federal lands.”  They note that “rare is the situation where a federal agency challenges state interests and often “send mixed message” about its authority over wildlife.  In several chapters in my book (especially Ch. 3 on Implementation issues but also in Ch. 6 on the ESA) I discuss and illustrate the problem of the political weakness of the USFWS and the underlying reasons for it.  The constituency for “wildlife preservation” includes wildlife (who can’t speak for themselves) and environmental-conservation-animal rights organizations. These latter groups have significant resources but their political pull is small compared to the coalition of interests that often want to undercut wildlife conservation including developers, ranchers, hunters, and extractive industries.  Although national polls often show strong majority support for policy positons favoring wildlife conservation, this general preference for wildlife conservation is relatively weak compared to the power of the selfish interests in the opposing coalition. Thus, when push comes to shove, the interests opposed to wildlife conservation dominate policies in many states, especially in western states where most Federal lands exist. Thus, for example, the USFWS is known as being a “meek” agency with good reason—there have been strong conservative support for cutting back on wildlife conservation laws (especially the Endangered Species Act) that have been used to preserve wildlife and USFWS and Interior Department officials have been engaged in trying to assuage the opposing coalition for 25 years including during the Clinton and Obama Administratons.  Indeed, the major victories for the preservation of wildlife have often come through Supreme Court decisions that have directed Federal (and state) agencies to adhere to the ESA and other wildlife conservation legislation.  This is a major reason why Republicans are in the process of proposals to weaken the ESA and other Federal laws protecting wildlife.
 
The Nie article does not deal with the new threat to the whole issue: the Trump Administration now controls wildlife agencies. Recently, for example, Secretary of Interior Zinke has pushed for the extreme cutting back of the Bears Ears Monument and Congress has voted to allow Alaska to kill denning bears and wolves in Federal wildlife areas.  So now there is not likely to be conflict between Federal and state agencies over wildlife conservation—the Feds as well as states will be firmly in the camp that will undercut wildlife protections when they conflict with the interests of extractive industries, developers, ranchers, and hunters. The only line of resistance left will be the Federal Courts but when the ESA is diluted, this last resort will also be ineffective.