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This Article reviews the authority of federal and state governments to manage wildlife on federal lands. It first describes the most common assertions made by state governments regarding state powers over wildlife and then analyzes the relevant powers and limitations of the United States Constitution and federal land laws, regulations, and polices. Wildlife-specific provisions applicable within the National Park System, National Wildlife Refuge System, National Forest System, Bureau of Land Management, the special case of Alaska, and the National Wilderness Preservation System are covered, as is the Endangered Species Act. We reviewed an extensive collection of cases of conflict between federal and state agencies in wildlife management on federal land These cases show how federal land laws, regulations, and polices are frequently appeared by federal agencies in an inconsistent and sometimes even unlawful fashion. They also demonstrate how commonalities found in state wildlife governance, such as sources of funding and adherence to the North American Model of Wildlife Conservation, often exacerbate conflict over wildlife management on federal lands. Federal land management agencies have an obligation, and not just the discretion, to manage and conserve fish and wildlife on federal lands. We debunk the myth that "the states manage wildlife and federal land agencies only manage wildlife habitat" The myth is not only wrong from a legal standpoint, but it leads to fragmented approaches to wildlife conservation, unproductive battles over agency turf and an abdication of federal responsibility over wildlife. Another problem exposed is how the states assert wildlife ownership to challenge the constitutional powers, federal and laws, and supremacy of the United States. While the states do have a responsibility to manage wildlife as a sovereign trust for the benefit of their citizens, most states have not addressed the conservation obligations inherent in trust management; rather, states wish to use the notion of sovereign ownership as a one way ratchet-a source of unilateral power but not of public responsibility. Furthermore, the states' trust responsibilities or wildlife are subordinate to the federal government's statutory and trust obligations over federal lands and their integral resources The Article finishes by reviewing the ample opportunities that already exist in federal land laws for constructive intergovernmental cooperation in wildlife management. Unfortunately, many of these processes are not used to their full potential, and states sometimes use them solely as a means of challenging federal authority rather than a means of solving common problems. Intergovernmental cooperation must be a mutual and reciprocal process, meaning that state agencies need to constructively participate in existing federal processes, and federal agencies should be provided meaningful opportunities to participate in, and influence, state decision making affecting federal lands and wildlife.
Zellmer, Sandra B.; Nie, Martin; Barnes, Christopher; Haber, Jonathan; Joly, Julie; and Pitt, Kenneth, "Fish and Wildlife Management on Federal Lands: Debunking State Supremacy" (2017). Faculty Law Review Articles. 182.