Peter A. Appel Alex W. Smith Professor University of Georgia School of Law Presented via Webinar Sponsored by the Carhart Center August 28, 2013

 Geer v. Connecticut, 161 U.S. 519 (1896) Involved interstate commerce in wild animals taken 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)

 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)

 Hunt v. United States, 278 U.S. 96 (1928) Deer overpopulation in Kaibab Nat’l Forest (AZ) USFS orders them to be culled, with personnel having no tags, and deer taken out of season; state objects

 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)

 Kleppe v. New Mexico, 426 U.S. 529 (1976) Wild Free-roaming Horses and Burros Act

 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)

 See also Wyoming v. US, 279 F.3d 1214 (10th Cir. 2002) (upholding USFWS ban on vaccinating elk in National Elk Refuge)

 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.”

 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

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

 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

 “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)

 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)

 High Sierra Hikers Ass’n v. USFS, 436 F. Supp. 2d 1117 (E.D. Cal. 2006)  Maintenance (?) of several dams w/in wilderness Fish 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)

 “[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)

 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)

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

 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

 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 seasons Ban hunting altogether Supply water sources outside of wilderness

 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

 “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)

 “[T]he Court shares the plaintiffs’ concerns that this decision could be interpreted wrongly as a stamp of approval on helicopter use.” (P.1270)

 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)

 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’ wishes  Courts have been very leery of policies where they conflict with WA—consult agency counsel

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