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ARTICLES

Fish and Wildlife Management on Federal Lands: Debunking State Supremacy

Martin Nie, Christopher Barns, Jonathan Haber, Julie Joly, Kenneth Pitt & Sandra Zellmer

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 policies. 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 lands. These cases show how federal land laws, regulations, and policies are frequently applied 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 land 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 for 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.

2016 NINTH CIRCUIT ENVIRONMENTAL REVIEW

Introduction

Case Summaries

CHAPTERS

Climate Change and the PSD Program: Using BACT to Combat the Incumbency of Fossil Fuels        

Sage Ertman

Climate change and its impacts are steadily worsening. Stubborn reliance on fossil fuels for electricity and the associated greenhouse gas emissions are largely to blame for exacerbating those impacts. The Prevention of Significant Deterioration (PSD) program under the Clean Air Act establishes one of the mechanisms for monitoring and controlling such air pollution. The United States Environmental Protection Agency and other permitting authorities implement the PSD program, primarily requiring that major stationary sources of air pollution seek a permit to ensure compliance with the Best Available Control Technology (BACT) standard. However, the “redefining the source” doctrine affords polluters and regulators great discretion under the standard, allowing many polluting facilities to elude more stringent regulation. This dynamic undermines the regulatory scheme, and courts, including the Ninth Circuit in Helping Hand Tools v. U.S. Environmental Protection Agency, have been complicit in allowing broad application of the doctrine.

This Chapter explores the incumbency of fossil fuels in the U.S. electricity sector and the environmental need for regulatory change. It then analyzes the “redefining the source” doctrine and how the doctrine has been applied in permitting disputes. Finally, this Chapter proposes to remedy the doctrinal loophole by either restricting its application or, alternatively, by abolishing the doctrine altogether.

A Chronic Problem: Pritzker and the NOAA Roadmap’s Deficiencies

Giulia Rogers

Anthropogenic noise from sources such as sonar, oil and gas exploration, and commercial shipping pollutes the ocean and causes serious problems for marine mammals, who rely on sound to survive. The National Oceanic and Atmospheric Administration (NOAA) recently addressed the extent of anthropogenic ocean noise polution (AONP) in its Roadmap that elaborates on the agency’s decision to try to address the ocean noise problem using existing statutory authority, such as the Marine Mammal Protection Act (MMPA). The Ninth Circuit Court of Appeals’ decision in Natural Resources Defense Council, Inc. v. Pritzker is the most recent decision in a series of cases arising under the MMPA that provides an example of how noise pollution from sonar has been successfully managed under the Act. However, Pritzker simultaneously highlights the limited capacity of the MMPA to regulate noise pollution from other sources. This Chapter explores the problem of anthropogenic ocean noise pollution and discusses its effects on marine mammals. This Chapter discusses the restricted scope of the Pritzker decision, examines the limited capacity of the MMPA to regulate ocean noise pollution, and details the deficiencies of NOAA’s Roadmap. Finally, this Chapter concludes with some suggestions for how statutory authority may be expanded to more adequately address ocean noise pollution.