Federal 'land grab' myth endures in Utah
The western states never owned the U.S. public lands (federal lands) inside their boundaries-
One of the the oldest myths perpetrated in rural areas of the public land states is that the national forests, parks, and BLM lands somehow at some time belonged to the state, and these lands were somehow wrested into federal ownership.
The function of the myth is mostly to provide a rationale for ignoring the law and the wishes of people from outside the area. It is actively perpetrated by development and livestock interests who don’t like federal decisions (they are silent about all this when they do like federal decisions).
When I taught the course “Public Land Politics,” I always spent about two weeks on the origin and history of the public lands, so that those who had absorbed this myth would have the history and laws to see what actually did and did not transpire.
This is the kind of op ed that needs to be written several times a year in every newspaper in the West. Federal ‘land grab’ myth endures in Utah. By Gale Dick. Save Our Canyons. Salt Lake Tribune.
Dr. Ralph Maughan is professor emeritus of political science at Idaho State University. He was a Western Watersheds Project Board Member off and on for many years, and was also its President for several years. For a long time he produced Ralph Maughan's Wolf Report. He was a founder of the Greater Yellowstone Coalition. He and Jackie Johnson Maughan wrote three editions of "Hiking Idaho." He also wrote "Beyond the Tetons" and "Backpacking Wyoming's Teton and Washakie Wilderness." He created and is the administrator of The Wildlife News.
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Gee, Ralph. Your course sounds very interesting. Can you recommend a couple of widely available books that you think give the best background on this subject for readers with little existing knowledge?
Federal Land, Western Anger by R. McGreggor Cawley is a good read on the history of the “Sagebrush Rebellion.”
How did the states get the right to manage wildlife on public
In most cases, wildlife is treated as a public resource held “in trust” by the states for its citizens. Essentially, the Federal Government gets treated like any other landowner.
The states manage wildlife on public lands because the U.S. government allows them.
Constitutionally, the U.S. government can take their management authority away by passing a law. In fact the ESA did that, one reason why state wildlife departments are usually not enthusiastic about the ESA.
THe definitive case on this is (federal government having the power) “Kleppe v. New Mexico, 426 U.S. 529 (1976).” From the Wikipedia, “[The Supreme Court] wrote that the “‘complete power’ that Congress has over public lands necessarily includes the power to regulate and protect the wildlife living there.” In addition, the Supreme Court said that Congress may enact legislation governing federal lands pursuant to the property clause and “when Congress so acts, federal legislation necessarily overrides conflicting state laws under the supremacy clause.”
This link (Organzation of Fish and Wildlife Agencies) gives a more complete explanation:
Kleppe vs New Mexico affirms that Congress has the ultimate authority to supercede the public trust responsibilities of the states for public wildlife resources – under specific legislation e.g. ESA, Wild Horse and Burro Act, etc. It is more correct to say that states role and responsibilities as the trustees for the public’s wildlife resources has been affirmed on several occasions by the US Supreme Court. The Idaho (and most other states) constitution specifically asserts authority over the wildlife resources within the state. That state authority and the North American Model for Wildlife Conservation are founded in the public trust doctrine. But – Congress may over-ride state authority under specific circumstances.
Note: the URL above is defective. I have been unable to find the correct one, trying to edit this. Webmaster.
Larry asked specifically, “How did the states get the right to manage wildlife on public lands (federal)?” You take up the more general question of state management of wildlife on all lands rather than U.S. public lands alone.
Here is the text from the link (Association of Fish and Wildlife Agencies):
Where do States get their authority to manage wildlife?
In general, the States possess broad trustee and police powers over fish and wildlife within their
borders, including fish and wildlife found on Federal lands within a State.
Since Roman times jurisdiction and access to wildlife have been the subject of legal debate. Questions
of ownership and access to wildlife have been addressed in principles surrounding the Public Trust
Doctrine. The traditional public interests protected by the public trust doctrine were navigation,
commerce, and fishing. Court cases have primarily addressed these three interests. However, Geer v.
Connecticut (1896) added “wild fowling” (wildlife) within a state’s trustee relationship. Although
partially reversed in Hughes v. Oklahoma (1979), state statutes and state courts continue to assert state
ownership of wildlife.
The Public Trust Doctrine has also been recognized as a fundamental cornerstone of what has come to
be known as the North American Model of Wildlife Conservation. The North American model has
two basic principles: that our fish and wildlife belong to all North American citizens, and are to be
managed in such a way that their populations will be sustained forever and to further advocate for the
doctrine of primacy of state management authority for resident wildlife. The Doctrine establishes a
trustee relationship of government to hold and manage natural resources for the benefit of both the
resource and the public. This Public Trust Doctrine has been codified in many state statutes and
The federal government has the constitutional ability to preempt state fish and wildlife management on
State or Federal lands through the Commerce Clause, the Treaty Clause, and the Property Clause of the
United States Constitution or when Congress specifically exempts federal lands from state law, such as
it has done with the National Park Service lands. The federal law permits the National Park Service to
restrict or ban fishing, hunting, or trapping within national parks. Other examples of Congress
speaking on the subject of state fish and wildlife management on federal land are on National Wildlife
Refuges Land. In this case, the Fish and Wildlife Service may allow sport hunting and fishing on the
refuges in any manner consistent with state law. The rule is that Fish and Wildlife Service regulations
must follow state law if the state law is consistent with federal management objectives and the primary
purpose for which the refuge was established. U. S. Forest Service and Bureau of Land Management
lands are governed by the multiple-use philosophy. As a general principle, public uses should be
consistent with state law. Both federal agencies have ambiguous closure authority to ban hunting or
fishing for public safety or administrative reasons. (43 CFR 24)
The Migratory Bird Treaty Act of 1918 is another example of federal statute superceding state wildlife management authority.
Obviously Mr. Dick does not have Mr. Bishop in his camp….