The story begins with an ominous picture of something about to go deeply wrong: “In a move that’s welcomed by Western conservatives but worries environmentalists, [Interior secretary Ryan] Zinke has directed…”
We have seen literally dozens of articles in the past couple years with similar leads. Some environmental reporters might have those words permanently on their clipboards, to be pasted into another story at a moment’s notice, a sort-of macro for Interior Department news coverage. That’s how routinely we are subject to the opening premise that if environmentalists are for it, conservatives are against it, and vice versa. We are meant to keep in mind, as we read on, that conservatives don’t care about the environment.
The latest idea that apparently “worries environmentalists” is that States should have more to say about the management of wildlife within their boundaries. More than what?
Specifically, what has some activists riled up now as an instruction from Zinke for Interior’s various agencies to recognize the “fundamental responsibility” of States in wildlife management. That might seem like a radical change in the modern era, when States have grown accustomed to bossy federal agencies presuming to control everything, including wildlife, especially in the West where so much of the land is federally owned. But it shouldn’t seem radical at all.
You see, although there are various federal regulations relating to it, wildlife doesn’t belong to the federal government. It belongs to the States. Our ancestors fought a revolution against the concept that all resources belonged to the crown, and peasants could be executed for killing the king’s deer.
There are centuries of law behind the important distinction between state and federal ownership, and the question continues to reach the courts fairly often. We saw it recently when a couple environmental organizations sued the U.S. Forest Service for allowing mountain goats to exist on national forest lands in Utah. A federal judge rejected the suit, reminding plaintiffs of the age-old ownership issue.
Because the States created the federal government (not the other way around), legal sovereignty still resides in States, while the United States is the limited, or delegated government. That often sounds antiquated now, but among other things it has always meant that sovereign State governments control wildlife. That is recognized as the “state ownership doctrine,” clearly explained by the U.S. Supreme Court in the precedent-setting 1896 case of Geer v. Connecticut. State ownership doctrine has rarely been questioned since then, and never officially by the federal government.
That does not mean State own wildlife in the same way individuals own pets, but that States have the power to manage, including control of the taking (capturing or killing) of wild animals within their borders. Under ancient English common law, that authority belonged to the King. He delegated it to the crown colonies, which maintained it when they became States. To this day, the structure of that management is intricately woven into the fabric of all state governments, with governing wildlife departments and commissions, which oversee hunting and fishing regulations, permits, seasons, and rules. They are funded by taxes on sporting equipment, which even at the federal level, are turned over to state to finance wildlife management.
State control is not completely unlimited, obviously. There are some private rights under the Constitution, and Indian rights under several treaties. There is also an element of federal authority in some instances. Animals are not mentioned in the Constitution, but interstate commerce is, and so are treaties. Thus, animals involved in interstate commerce are subject to federal regulation, as are migratory birds and endangered species, at least partly because they are the subject of treaties with other countries. Federal regulations in those cases does not convey ownership, however.
A more complicated nuance involves federal land ownership, and that is why the recent instruction from Secretary Zinke has stirred controversy. When the federal government owns land, it is not bound by state land use laws, but by Acts of Congress establishing management objectives. If those objectives appear to conflict with State wildlife policies, the federal government generally asserts its primacy, and demands state compliance, often under threats of legal action and withholding of funds.
Secretary Zinke is asking for a more conciliatory approach, recognizing not only State ownership and management authority, but also expertise the federal government can only dream about. He and Deputy Secretary David Bernhardt plan to consult with States in implementing new strategies that “recognize states as the first-line authorities for fish and wildlife management,” and that “defer to the states in this regard, except as otherwise required by federal law.”
Zinke wrote that “The 50 state governments have extensive capacities and competencies to exercise their responsibilities to serve as trustees for fish and wildlife species resident in their respective states.” If anything, that is an understatement. Colorado has more than 800 wildlife employees, including a vast number of biologists who are the world’s foremost experts on an enormous range of species and habitat issues. So it is in virtually every state.
Naturally, the loyal opposition is beyond “worried.” On group denounced the new direction as an “across-the-board abandonment of federal fish and wildlife safeguards.” In fact, Zinke has not proposed abandoning anything.
States do not need federal permission to manage their wildlife. Nor is it necessary for Interior Department leaders to acknowledge that fact, and pledge to work more as partners rather than adversaries. But it is a welcome change.
An edited version of this column appeared in the Grand Junction Daily Sentinel September 28, 2018.
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