If States own wildlife management, under what legal authority does the ESA operate?

[Rifleman86]

This is one that I’ve pondered for a while… We’ve often heard the mantra here time and time again when arguing about nonresident tag costs and allocation, the Wyoming and Alaska nonresident guide rules, etc. that States have the authority to manage wildlife, the feds don’t.

Period, end of discussion. Doesn’t matter if that wildlife spends its entire life in federal land, the Feds have no say.

Yet we have this thing called the endangered species act. Try as they may, and despite all the evidence proving they have made a full recovery, WY, MT and ID can’t have a grizzly season yet.

So a question for the legal minds here… Under what legal authority does the ESA operate?

This is a genuine question, did a quick google search and came up with nothing.

ETA edited the thread title to be more technically correct.

 

[Johnny Tyndall]

I am not a lawyer, but presumably the "supremacy clause" in article VI of the constitution?

"This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."

 

[cfdjay]

The states don't own wildlife. Wildlife is that of the people within said state. One is government entity, one is not. And that is straight from a Wildlife Officer.

 

[Fordguy]

States don't own wildlife, and neither do the state residents. You can look it up, any number of scholarly sources and more than one federal statute clarify this. States are typically (but not always) allowed to manage wildlife for the benefit of the public. Frequently trust like language is used to explain the relationship between the state and the wildlife within it's borders.

 

[cfdjay]

Via the Public Trust Doctrine the people do.

https://wildlife.org/wp-content/uploads/2014/05/ptd_10-1.pdf

 

[Rifleman86]

Via the Public Trust Doctrine the people do.

https://wildlife.org/wp-content/uploads/2014/05/ptd_10-1.pdf

Thanks! Looks like I have my evening reading cut out for me…

 

[cfdjay]

"The Trust Defined and Why it Matters Simply defined, a trust is a collection of assets committed or entrusted to one to be managed or cared for in the interest of another. The party to whom the trust assets are committed is commonly referred to as the trustee, whereas the party for whom the assets are being managed is referred to as the beneficiary of the trust. Accordingly, the PTD holds that publicly owned wildlife resources are entrusted to the government (as trustee of these resources) to be managed on behalf of the public, the beneficiaries. Consequently, governmental institutions do not own trust resources; rather, they are owned by the public and are entrusted in the care of government to be safeguarded for the public’s long-term benefit."

 

[Rifleman86]

"The Trust Defined and Why it Matters Simply defined, a trust is a collection of assets committed or entrusted to one to be managed or cared for in the interest of another. The party to whom the trust assets are committed is commonly referred to as the trustee, whereas the party for whom the assets are being managed is referred to as the beneficiary of the trust. Accordingly, the PTD holds that publicly owned wildlife resources are entrusted to the government (as trustee of these resources) to be managed on behalf of the public, the beneficiaries. Consequently, governmental institutions do not own trust resources; rather, they are owned by the public and are entrusted in the care of government to be safeguarded for the public’s long-term benefit."

Got it, had a pretty good understanding of that.

My main question is, is when and under what authority are the feds allowed to take over as the manager of that resource under the public trust doctrine?

Obviously the ESA allows that in certain circumstances… But was that due to the supremacy clause? Or was it justified under interstate commerce?

Could the scope of federal involvement in state management be increased if legislation was passed in congress? It’s my understanding that would be a violation of states rights… Yet obviously the ESA has passed legal muster despite challenges in court.

 

[Fordguy]

"States don’t “own” wildlife in the way most commonly understood. When states have argued that their “ownership” of wildlife necessarily trumps that of the federal government, the Supreme Court called state ownership of wildlife a “19th-century legal fiction.” Hughes v. Oklahoma, 441 U.S. 322 (1979). (See pp. 907-911)."

Federal Land Agency Managers' Frequently Asked Questions About Fish and Wildlife Management on Federal Lands

www.cfc.umt.edu

 

[Fordguy]

The trust like language that I've seen from states usually says that wildlife is to be managed for the benefit of state residents, however, in federal wording, the wildlife and resources are to be managed "in the public interest"- Not simply in the interest of state residents.

 

[Fordguy]

"The Trust Defined and Why it Matters Simply defined, a trust is a collection of assets committed or entrusted to one to be managed or cared for in the interest of another. The party to whom the trust assets are committed is commonly referred to as the trustee, whereas the party for whom the assets are being managed is referred to as the beneficiary of the trust. Accordingly, the PTD holds that publicly owned wildlife resources are entrusted to the government (as trustee of these resources) to be managed on behalf of the public, the beneficiaries. Consequently, governmental institutions do not own trust resources; rather, they are owned by the public and are entrusted in the care of government to be safeguarded for the public’s long-term benefit."

Yes- owned by the public. Not just the residents of the state. Just as federal lands are public, certainly utilized by but not owned exclusively by residents of the state.

 

[Rifleman86]

"States don’t “own” wildlife in the way most commonly understood. When states have argued that their “ownership” of wildlife necessarily trumps that of the federal government, the Supreme Court called state ownership of wildlife a “19th-century legal fiction.” Hughes v. Oklahoma, 441 U.S. 322 (1979). (See pp. 907-911)."

Federal Land Agency Managers' Frequently Asked Questions About Fish and Wildlife Management on Federal Lands

www.cfc.umt.edu

This is exactly what I was looking for thank you!

I wonder where/how this intersects with Baldwin v. Fish and Game commission of Montana.

https://en.m.wikipedia.org/wiki/Bal...ana, 436 U.S. 371 (1978,-of-state elk hunters.

I’m no lawyer, but I’m interested in reading up on the case you linked.

 

[eye_zick]

Great question, I have no expertise, but this is the conclusion I've come to.

My shortest answer: 10th amendment - prohibits the federal government from forcing STATES to enforce FED law. BUT states like WY, MT and ID enforce ESA grizzly endangerment to continue to receive federal funding.

1. ESA is enforced/authority by US Fish and Wildlife Service (feds)
2. ESA establishes state funding to follow ESA
3. States F&G receive federal funding and they enforce/follow this fed law to continue to receive
4. Meaning WY, MT and ID cannot have a grizzly season bc the ESA has not delisted and states will potentially lose all funding (not just F&G) if not adhere to ESA. (similar to clean water act, EPA, etc)

Longer answer, because like you I think about this crapola too much -

EPA is enforced by the US Fish and Wildlife Service (FWS), the principal federal agency tasked with conservation, protection, and restoration of fish and wildlife. Prior to the ESA the fed govt had no say in 'endangered species' bc like you said, states own the wildlife within their borders. The feds know the states have vastly more experience and assets to conserve wildlife and it was under this premise the ESA was passed. The FWS envisioned themselves as 'an overseeing operation' to ensure the states were following the fed law. The solution was (1) for the feds to give the "green light" on states' wildlife management programs, meaning the ESA relied in existing state programs, (2) ESA gave the authority to the feds to list a species, (3) Fed and states would enter into a cooperative to protect listed species, (4) fed govt provides funding to states to enforce fed law (side bar - when states enforce fed law its always under this premise - which begs the question of the 10th amendment). ESA establishes specific criteria to list a species and required programs to protect. The ESA does not require goals/parameters/etc that lead to delisting. The EPA is a defense mechanism to prevent extinction. ESA recovery plans do not place legal burden on the FWS to delist a species.

That's my understanding of the authority of the ESA and why grizzly's cannot be delisted. The ESA needs to have an amendment to fully jive the states ownership of the wildlife within its borders and preserve and perpetuate the wildlife within their borders according to federal goals and required cooperative agreements that have end dates which lead to species recovery and lift the ESA regulation.

EVEN LONGER - the Snake River spring/summer chinook salmon were listed in 1992 and steelhead in 1997 but here we are 30 years later and the kings aren't back.

BC the ESA gives the FWS the authority to prevent the extinction of a species, and they haven't become extinct but they are still lingering. The 2017 ESA recovery plan for the Snake River Chinook states the ESA plan is to "improve the viability of Snake River spring/summer Chinook salmon and steelhead, and the ecosystems upon which they depend, to the point that the ESU and DPS are self-sustaining in the wild and no longer require ESA protection" but makes no assertion of how many or how much or how long (100 years?) etc. IN the case of grizzly's it is the same. Idaho's plan for chinook isn't to exceed population levels beyond ESA delisting (Idaho only wants delisting) which is a piss poor goal to just meet the minimum. I am not well versed in the grizzly spectrum, but I can only guess that they have a similar approach to grizzly's - meet the ESA minimum required to delist and that's a flag to just get relisted, right? The new ESA plan for the chinook should come out this year.

 

[eye_zick]

The states don't own wildlife. Wildlife is that of the people within said state. One is government entity, one is not. And that is straight from a Wildlife Officer.

States don't own wildlife, and neither do the state residents. You can look it up, any number of scholarly sources and more than one federal statute clarify this. States are typically (but not always) allowed to manage wildlife for the benefit of the public. Frequently trust like language is used to explain the relationship between the state and the wildlife within it's borders.

Idaho Statute Title 36, chapter 1, 36-103 "All wildlife, including all wild animals, wild birds, and fish, within the state of Idaho, is hereby declared to be the property of the state of Idaho"

Wyoming statute 23-1-103. Ownership of wildlife "For the purpose of this act, all wildlife in Wyoming is the property of the state"

Idaho public trust doctrine section 58-1203 - "The public trust doctrine as it is applied in the state of Idaho is solely a limitation on the power of the state to alienate or encumber the title to the beds of navigable waters."

in other words public trust doctrine AKA common law is traditionally applied to tidal and submerged lands.

 

[Rifleman86]

Great question, I have no expertise, but this is the conclusion I've come to.

My shortest answer: 10th amendment - prohibits the federal government from forcing STATES to enforce FED law. BUT states like WY, MT and ID enforce ESA grizzly endangerment to continue to receive federal funding.

1. ESA is enforced/authority by US Fish and Wildlife Service (feds)
2. ESA establishes state funding to follow ESA
3. States F&G receive federal funding and they enforce/follow this fed law to continue to receive
4. Meaning WY, MT and ID cannot have a grizzly season bc the ESA has not delisted and states will potentially lose all funding (not just F&G) if not adhere to ESA. (similar to clean water act, EPA, etc)

Longer answer, because like you I think about this crapola too much -

EPA is enforced by the US Fish and Wildlife Service (FWS), the principal federal agency tasked with conservation, protection, and restoration of fish and wildlife. Prior to the ESA the fed govt had no say in 'endangered species' bc like you said, states own the wildlife within their borders. The feds know the states have vastly more experience and assets to conserve wildlife and it was under this premise the ESA was passed. The FWS envisioned themselves as 'an overseeing operation' to ensure the states were following the fed law. The solution was (1) for the feds to give the "green light" on states' wildlife management programs, meaning the ESA relied in existing state programs, (2) ESA gave the authority to the feds to list a species, (3) Fed and states would enter into a cooperative to protect listed species, (4) fed govt provides funding to states to enforce fed law (side bar - when states enforce fed law its always under this premise - which begs the question of the 10th amendment). ESA establishes specific criteria to list a species and required programs to protect. The ESA does not require goals/parameters/etc that lead to delisting. The EPA is a defense mechanism to prevent extinction. ESA recovery plans do not place legal burden on the FWS to delist a species.

That's my understanding of the authority of the ESA and why grizzly's cannot be delisted. The ESA needs to have an amendment to fully jive the states ownership of the wildlife within its borders and preserve and perpetuate the wildlife within their borders according to federal goals and required cooperative agreements that have end dates which lead to species recovery and lift the ESA regulation.

EVEN LONGER - the Snake River spring/summer chinook salmon were listed in 1992 and steelhead in 1997 but here we are 30 years later and the kings aren't back.

BC the ESA gives the FWS the authority to prevent the extinction of a species, and they haven't become extinct but they are still lingering. The 2017 ESA recovery plan for the Snake River Chinook states the ESA plan is to "improve the viability of Snake River spring/summer Chinook salmon and steelhead, and the ecosystems upon which they depend, to the point that the ESU and DPS are self-sustaining in the wild and no longer require ESA protection" but makes no assertion of how many or how much or how long (100 years?) etc. IN the case of grizzly's it is the same. Idaho's plan for chinook isn't to exceed population levels beyond ESA delisting (Idaho only wants delisting) which is a piss poor goal to just meet the minimum. I am not well versed in the grizzly spectrum, but I can only guess that they have a similar approach to grizzly's - meet the ESA minimum required to delist and that's a flag to just get relisted, right? The new ESA plan for the chinook should come out this year.

Thanks for the lengthy explanation!

I figured funding had a part in it. I know usually federal funding is the stick that keeps states in line. Typically via highway funding, etc.

I can see how wildlife would be no different.

 

[Fordguy]

Federal statute and or law supercedes state. That's the be all, end all. Any government (specifically state governments) will try to word things in their favor to give themselves control of resources. It happens all the time, especially when it's not challenged. Look at the legalization of marijuana. Just because states have given themselves the authority to legalize and allow it doesn't mean that the feds can't enforce federal law in any state that they choose. Is it likely that they will? I don't think so, but they could.

 

[Rifleman86]

Federal statute and or law supercedes state. That's the be all, end all. Any government (specifically state governments) will try to word things in their favor to give themselves control of resources. It happens all the time, especially when it's not challenged. Look at the legalization of marijuana. Just because states have given themselves the authority to legalize and allow it doesn't mean that the feds can't enforce federal law in any state that they choose. Is it likely that they will? I don't think so, but they could.

After reading your link, I believe you are 100% correct. If anyone would know the inns and outs of this question, it would be the University of Montana.

Based on reading the above, it’s absolutely within the purview of the Feds to make decisions with regards to managing wildlife, particularly on federal land if they chose to do so.

I wish Buzz were here to tell us the folks who wrote this article, who are all professors, to include an environmental law professor, don’t know what they are talking about.

 

[Fordguy]

I think I showed it to him in a different thread some time ago. He didn't like it, so he chose to, well, ... be himself. It's not my information. I didn't write the article. It's just information that I've come across while trying to satisfy my curiosity.

 

[5MilesBack]

My shortest answer: 10th amendment - prohibits the federal government from forcing STATES to enforce FED law. BUT states like WY, MT and ID enforce ESA grizzly endangerment to continue to receive federal funding.

Possibly, but when Trump tried to withhold federal funding from sanctuary cities and states when they refused to enforce federal immigration laws, judges ruled that he couldn't withhold that funding. So that shouldn't stop the states from ignoring the ESA, and they would still get their funding......as already declared now as precedent by the courts.

 

[eye_zick]

Possibly, but when Trump tried to withhold federal funding from sanctuary cities and states when they refused to enforce federal immigration laws, judges ruled that he couldn't withhold that funding. So that shouldn't stop the states from ignoring the ESA, and they would still get their funding......as already declared now as precedent by the courts.

thats a great point - I need to revisit this.